' Constitutional jurisdiction of his Court has been invoked by the petitioner for issuance of a direction to respondent No,2/Superintendent, new Central Jail, Bahawalpur, to award special remissions to the petitioner given by the Provincial as well as Federal Government from time to time.. The petitioner was convicted in a private complaint under sections 302/324/148/149/337- L/337-F, P.P.C. Read with section 109, P.P.C. As well as sections 11/10(3), of the Offence of Zina (EnforceMent of Hudood) Ordinance, 1979. The case was tried by the trial Court and after recording the prosecution evidence, the Court vide judgment dated 30-6-2000 convicted the present petitioner for the murder of Allah Yar and sentenced him to imprisonment for life and also directed to pay compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. To the tune of Rs,50,000 and in default of payment of compensation, the same is to be recovered as arrears of land revenue. He was further convicted and sentenced under section 458, P.P.C. To undergo Rigorous Imprisonment for ten years with a' fine of Rs,5,000 in default whereof to undergo, Simple Imprisonment for six months. He was also convicted and sentenced under section 11 of Ordinance VII of 1979 to imprisonment for life with a fine of Rs,5,000 and in default thereof to undergo further Simple Imprisonment for six months. All the sentences were to run concurrently and the petitioner along with others was also given the benefit of section 382-B, Cr.P.C.
2. Comments from the respondents were called, wherein the respondent has taken the stand that the petitioner was sentenced under sections 302/458, P.P.C. Read with section 11 of Hudood Ordinance VII of 1979, therefore, his case does not fall within the Presidential order of remission issued fom time to time, wherein it is mentioned that remission would not be admissible to the prisoners undergoing sentence for the offence of espionage, subversion, rape dacoity, terrorism and anti-State activities. In the case under section 302, P.P.C., the petitioner was sentenced to life imprisonment. According to the Presidential notification dated 14-8-2001, the said remission would not be admissible to the prisoners who were convicted for murder. It is further added that in view of the Writ Petition No,1553 of 2001 decided by the Division Bench, in case under the category of Qisas and Diyat, the Superintendent, Inspector-General of Prisons and Provincial Government are not competent to award remission. Lastly it is submitted that the case of the petitioner falls in the category of rape and murder for which the award of special remission is prohibited by the Presidential orders.
3. I have heard the arguments of the learned counsel for the petitioner and perused the record anxiously.
4. The remission granted by the Government of Pakistan vide its letter dated 11-8-2001 reveals that special remission of one year to the prisoner convicted for life imprisonment except those convicted for murder, espionage, anti-State activities, sectarianism, rape (also under section 377, P.P.C.) robbery (section 394, P.P.C.), dacoity (sections 396-396, P.P.C.), kidnapping /abduction (sections 364-A and 365-A) and terrorist acts (as defined in the Anti-Terrorism (Second Amendment) Ordinance, 1999.
5. The petitioner is convicted for murder and has been sentenced to life imprisonment for charge of murder, A therefore, he is not entitled to the remission according para.1 of the" letter.
6. So far as the case of rape is concerned,. It would be appropriate and advantageotog 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 plain 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 if falling under any of the above five descriptions.
7. 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."
8. 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. In the instant case the petitioner has not been charged and convicted for committing Zina or rape with any woman and has been convicted under section 11 of Ordinance VII of 1979 which envisages that whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any per against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in the Pakistan Penal Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
There is no provision that the accused would be punishable under the section if he commits Zina or rape with the abducted lady. There is no allegation against the petitioner that he had forced or seduced any woman to illicit intercourse. Had he committed the offence of Zina, he would have been charged and punished either under section 10(2) or section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. There is no evidence on record that he has committed rape with the consent of the woman or that he subjected her to Zina-bil-Jabr.
9. For the foregoing reasons, I have no hesitation in observing that petitioner has not been punished for committing Zina or rape, therefore, para.1 of the letter is attracted to the present case and he is entitled to remission of one year in his sentence and for other remission granted from time to time if his case is not covered within the offence of rape or Zina.
' In view of the above discussion, this writ petition is accepted and the respondent is directed to award remission to the petitioner in the light of the above observations.