Shariat bench corrects anomaly after 13 years: Sentence for rape
By Mahmood Zaman
LAHORE, Nov 17: The Shariat Appellate Bench of the Supreme Court has recently revised and corrected its own judgment rendered in 1991, which virtually laid down a new law by amending section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and substituting the term of imprisonment for rape.
The judgement (PLD 1991 Supreme Court 567) has exceedingly been cited, particularly by the defence and in appeal matters in the superior and subordinate courts and, on many occasions, the offenders have been awarded term in prison less than actually stipulated under section 11 of the Hudood Ordinance.
The judgement was again cited earlier this month before the Supreme Court's Shariat Appellate Bench, comprising Justice Abdul Hameed Dogar (chairman), Justice Muhammad Nawaz Abbasi, Justice Mian Shakirullah, Justice Allama Khalid Mahmood and Justice Dr Raashed Ahmad Jallandhri, in a matter relating to leave to appeal in an abduction case.
But assistant advocate-general Raja Abdur Rehman made some ripples during the proceedings when he submitted before the court that the 1991 decision was based on incorrect citations and error made either by the defence counsel or court itself.
The AAG submitted that section 11 of the Hudood Ordinance did not stipulate a punishment other than life imprisonment for the abductor. Citing the provision, he submitted that the section provided that kidnapping, abduction or inducing women to marriage shall be punished with imprisonment for life and with whipping not exceeding thirty stripes; and shall also be liable to fine.
The 1991 judgment on the other hand, the AAG said, substituted the provision of imprisonment by incorporating the words "shall be punished with imprisonment which may extend to life."
The 1991 judgment was passed by a Shariat Appellate Bench of the Supreme Court, comprising Justice Syed Nasim Hasan Shah (chairman), Justice Abdul Qadeer Chaudhry and Justice Maulana Muhammad Taqi Usmani. It interpreted the language and diction of section 11 of the ordinance as inartistic and not giving the intention of the law-maker.
The real intention of the law-maker, as held by the bench, was to make a person guilty under section 11 to be punished for an imprisonment extending to life as was the case in section 10 (3) of the ordinance. And the word 'extending' has been inadvertently omitted in the provision.
The bench rendered the judgment in order to avoid injustice and give effect to true intention of the law-maker. It said the court would supply the inadvertent omission in section 11 with a view to bringing it in conformity with the true intention of legislators.
The judgment also said even though the court could not normally give any meaning to a provision other than that which the words used therein by the draftsman carried (however drastic or inconvenient might be), the court nevertheless in order to avoid injustice could give effect to true and patent intention of the law-maker by supplying an omission.
Before parting with the judgment, the court substituted the punishment "part with words which may extend to life" and specifically mentioned that underlined words are ours, in place of the words for life presently appearing in section 11.
By incorporating these words the Supreme Court's Shariat Appellate Bench virtually laid down a new law which continued to be cited and implemented by high courts and the subordinate judiciary.
The anomaly was pointed out when the apex court's Shariat Appellate Bench reduced the sentence of the accused, who abducted Ms Riffat Abdullah from a girls college about four years ago. Accused Khalid, Ikram and Nadia Ayub were sentenced by a sessions court to life imprisonment and the bench reduced the prison term of Nadia to 10 years.
AAG Raja Abdur Rehman cited a judgment of the Supreme Court (1985 PSC 915) in submitting that it held that the punishment of abduction could not be less than life imprisonment. On a court inquiry, the AAG submitted that the 1985 judgment might not have been produced before the bench in 1991.
To another question by the court, Raja Abdur Rehman submitted that the law-makers' intention was that the offenders should sufficiently be punished. The bench later revised and corrected the 1991 decision.
