' It was in pursuance of a judgment dated 22-3-2001 passed by a learned Additional Sessions Judge, Samundri that the petitioner herein was convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 and was punished with 6 years' R.I., a fine of Rs,25,000 and three months' S.I. In default of payment of tine. As per judgment dated 7-11-2000 of the Federal Shariat Court, passed in Criminal Appeal No,68/L of 2000, the appeal filed by the present petitioner calling in question the above-noticed conviction and punishment recorded against him, failed.
2. Through this petition under Article 199 of the Constitution, it has been complained that the respondent Jail Authorities were not granting to the petitioner the remissions which had been granted from time to time by the President of the Islamic Republic of Pakistan under Article 45 of the Constitution. The case of the respondent Jail Authorities is that such remissions granted by the President were not available to the convicts who had been found guilty and were consequently, suffering punishment for committing rape. The learned counsel for the petitioner contends that the petitioner was never convicted for committing rape and that he had been found guilty and punished for committing Zina under section 10 (2) of Offence of Zina (Enforcement of Hudood)
Ordinance No,VIII of 1979 and that the Offence of Zina was not the same thing as the offence of rape.
3. This petition is admitted to regular hearing to consider this question and since only a short simple question is involved, therefore, this petition is being disposed of today as a notice case.
4. No offence by the name of rape now exists in the corpus juris of Pakistan. Sections 375 and 376 of the P.P.C. Which existed in the Pakistan Penal Code prior to 1979, were repealed and were substituted by the provisions of the offences contained in the Ordinance No,VII of 1979. Rape was defined in the omitted provisions of section 375 of the P.P.0 and read as under:-- "Rape.-- A man is said to commit `rape' who except in the cases hereinafter excepted. Has sexual intercourse with a woman under circumstance 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."
5. From a perusal of the provisions of the said Ordinance No,VII of 1979, it transpires that the offence of rape as it existed prior to 1979 is now the offence of Zina-bil-Jabr as defined in section 6 of the said Ordinance No,VII of 1979 which reads as under:-- "Zina-bil-Jabr.-- (1) A person is said to commit Zina-bil-Jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely:--
(a) against the will of the victim,
(b) without the consent of the victim,
(c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt, or
(d) with the consent of the victim, when the offender knows that the offender is, not validly married to the victim and that the consent is given because the victim believes that the offender is another person to wham the victim is or believes herself or himself to be validly married."
6. It would thus be noticed that Zina simplicter punishable under section 10(2) of the Ordinance No,VII of 1979 is not the same thing as rape. Since the petitioner had been found guilty and convicted of the commission of the offence of Zina and was punished under the said section 10(2) of the said Ordinance No,VII of 1979, therefore, his case is not hit by the exceptions created in the orders in question of the President.
7. In this view of the matter, this petition is allowed. The concerned Jail Authorities are directed to extend the remissions in questions to the petitioner also as his case is not covered by the offence of rape