The petitioner has approached this Court for issuance of direction to the respondent to compute all the ordinary and special remissions into the petitioner's sentence granted by the Government and higher authorities on different occasions.
2.Facts giving rise to the present writ petition are that the petitioner was tried in a case F.I.R. No,38 of 1997, dated 26-4-1997 under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station, Dera Nawab- and was sentenced to 25 years imprisonment with whipping numbering 30 stripes vide judgment dated 15-4-1999, passed by Additional Sessions Judge, Ahmadpur East. Fine of Rs,15,000 was also imposed in terms of section 544 A, Cr.P.C. and in default of payment of fine, the petitioner had to suffer further six months' imprisonment. The benefit of section 382-B, Cr.P.C. was also extended to the petitioner.
3. The petitioner challenged the above judgment through a Criminal Appeal No,67/1 of 1999 before the Federal Shariat Court of Pakistan which was dismissed, vide judgment, dated 19-10-1999 with modification of reducing his sentence from 25 years R.I. to 15 years R.I. in' order to pay compensation of Rs,15,000 and benefit of section 382-B, Cr.P.C. was also maintained.
4. Comments from the respondent have been received and perused, wherein, it is stated that the prisoners convicted for "Rape" are not entitled to remission. It was further stated that the petitioner has been awarded all the remissions admissible under the rules and his probable date of release is 2-5-2003.
5. I have heard the arguments of learned counsel for the petitioner and perused the record.
6. In clause (1) of the Notifications dated 26-12-2000, 3-3-2001, 31-5-2001 and 11-8-2001, the special remission of one year to the prisoners convicted for life imprisonment except those convicted for espionage, anti-State activities, sectarianists, rape, robbery, dacoity, kidnapping/abduction and terrorist act has been granted by the Government.
5. So far as the case of rape is concerned, it would be appropriate and advantageous to reproduce the definition of rape as given in section 375 of the Pakistan Penal Code which reads as under:- "Rape.-- -A man is said to commit 'rape' who except in the cases hereinafter excepted has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:-- First: Against her will. Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her in fear of death or of hurt.
Fourthly: With her consent when the-man knows that he is not her husband. and that her consent is given because she believes that he is another man to whom she is or, believes herself to be lawfully married.
Fifthly: With or without her consent when she is under fourteen years of age.
Explanation.---Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
From the bare reading of the above provisions of section 375, P.P.C., it is manifestly clear that rape is said to have been committed' with a woman of falling under any of the above descriptions.
8. The word 'Zina' has been defined in section 4 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979, as under: - "4. Zina.---A man and a woman are said to commit 'Zina' if they wilfully have sexual intercourse without being validly married to each other.
Explanation.---Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina' ,"
9. In both the above-referred laws, the sexual intercourse by a man with a woman is the pre- condition and if the ingredients of rape and Zina are not made out in the case, It would not be inferred that the person has committed any rape or Zina with the woman.
10.In the instant case, the petitioner has been sentenced to 25 years' imprisonment under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, thus, the special remission of one year under clause (2) of above-referred notifications is not attracted to the case of the petitioner. The remission for six months has also not been granted to the prisoners convicted under the offence of rape.
11.For the foregoing reasons, I have no hesitation in observing that petitioner has been punished for committing offence of Zina or rape, therefore paras. Nos,1 and 2 of the above mentioned notifications are not attracted to the present case and the petitioner is not entitled for any remission granted to the prisoners from time to time.
In view of above discussion, this writ petition being devoid of any force is' dismissed.