By Zainab Samantash
This Ordinance was introduced and was part of the then President, General Zia-ul-Haqś Islamization campaign, which aimed to bring the law into conformity with Islamic injunctions. It was drafted by the Council of Islamic Ideology in consultation with Dr. Ma’ruf al-Dawalibi. The law was prepared in Arabic and later translated into English. The Ordinance mainly deals with the offences of adultery and fornication, some parts of which were revised by the Protection of Women Act, 2006.
Case Law for Preamble
2012 YLR 847 Federal Shariat Court (Zulfiqar Ali v The State)
Islam had regarded commission of illegitimate sexual intercourse a very great sin and heinous crime. If proved guilty, Islam had prescribed severe punishment for such criminals. Islam considered both fornication as well as adultery equally serious offences and made no distinction between the two in their nature as offences against human society. Gravity as well as the sentences of the offence, however, varied according to the marital status of the offender. If the offender was unmarried, the quantum of punishment was somewhat less than that of the married one. Offence in the latter case was considered more severe for the reason that legitimate means to satisfy his urge were available to such a person, but even then he preferred and resorted to unlawful means. Since according to Islamic Injunctions, the commission of zina was a cognizable crime, it had not only prescribed severe punishment, but had introduced a number of reformative and preventive means as well. Legal sanctions and deterrent punishment were, in fact, promulgated as a last resort to curb the evil and purify the society. Islam had provided some prohibited degrees in the inter-personal relationship by means of affinity, consanguinity, and fosterage, where not to speak of commission of illegal sex, even contract of marriage, was strictly forbidden. Sexual intercourse between person falling in the said specified degrees of consanguinity or infinity or fosterage, was a very great sin. Holy Quran had given detailed and very clear injunctions in that respect. For example, Islam had prohibited marriage with mother, daughter, granddaughter, sister, niece, foster mother, foster-sister, mother-in-law, daughter-in-law etc. Incest within those prohibited degrees of relations, was considered a grievous and ignoble offence. Gravity of said offence increased multifold as compared to that of zina simpliciter, when a person was proved guilty of commission of incest by cogent, trustworthy and reliable evidence. Holy Quran had emphasized that while inflicting punishment on any male or female who was proved guilty of commission of zina no leniency be observed. Even marrying any woman falling in the prohibited degrees of marriage, was void ab initio and a great criminal offence, which would entail exemplary punishment.
2001 PCrLJ 685 Lahore High Court (Nasreen v Station House Officer, Police Station Batala Colony, Faisalabad)
Spy information; incognito or anonymous information is totally and completely excluded to be used as a ploy or means of information to rake up cases of promiscuity, immorality or prostitution, allegedly practised in homes belonging to private individuals, being in direct conflict with the provisions of Islam
1992 SCMR 1273 Supreme Court (Allah Dad v Mukhtar)
All the provisions of the Ordinance have to be read and interpreted in the light of the title and preamble which are not defined in the Ordinance itself. The Ordinance must be construed and interpreted in accordance with the Injunctions of Islam as set out in the Holy Quran and Sunnah.
1984 SCMR 185 Supreme Court (Muhammad Ashraf v The State)
Leave to appeal against conviction and sentence passed by Federal Shariat Court is subject to decision on question of limitation to re-appraise evidence and to examine if principles of law laid down for safe dispensation of justice observed by Federal Shariat Court
Case Law for Section 1
1994 PLD 2 Federal Shariat Court (Mst Yasmeen v The State)
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 having been extended and applied to Federally Administered Tribal Areas and Provincially Administered Tribal Areas of N.-W.F.P. providing forum of Court of Session for the trial of cases, Authorities working under the Frontier Crimes Regulation were not competent to hear and decide these cases.
1980 PLD 47 Lahore High Court (Fateh Khan v Muhammad Zia-ur-Rehman)
Ordinance VII of 1979 is not retroactive in nature.
Case Law for Section 2
2005 PLD 316 Lahore High Court (Mst. Hajra Khatoon v Station House Officer, Police Station Fateh Jang, District Attock)
Marriage contracted by a woman not having attained the age of majority as defined in law, but having attained puberty as defined in Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is valid and not void.
2004 MLD 970 Federal Shariat Court (Afzal Masih alias Noori Masih and another v The State)
Definition of the crime and ingredients of offence of Zina as laid down in penal sections 2 and 4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had to be seen and kept in view, and if ingredients were not fulfilled then no conviction could be recorded under said sections. Both accused in present case were previously Christians but converted to Islam and entered the Nikkah as Muslims and their marriage was duly registered under prevalent law. Hence it would be inappropriate and unjust to treat marriage of the accused persons as invalid at least to determine their guilt which was the issue in appeal.
2001 MLD 310 Lahore High Court (Ghulam Dastagir v The State)
Accused persons not covered under the definition of “adult” as provided under S.2(a) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Both the accused persons not being adult had committed Zina-bil-Jabar with a minor girl of 9 years. Anti-Terrorism Court convicted and sentenced both of the accused to death. This Court found that where the accused persons were not adults, they could not be convicted under S.10(4) Offence of Zina (Enforcement of Hudood) Ordinance 1979, and could only be convicted under S.7 of the Ordinance
2000 YLR 1871 Federal Shariat Court (Lal Baksh v The State)
Proof of a female being adult is either reaching the age of 16 years or having reached puberty. Puberty is achieved by girl when she menstruates.
1994 SCMR 2102 Supreme Court (Amanullah v The State)
Consent of a minor victim is irrelevant.
1992 PCRLJ 1058 Federal Shariat Court (Muhammad Ramzan v The State)
An ¨adult¨ is someone who has either attained the age as stated in S.2(a) or has attained puberty.
1991 PCRLJ 928 Federal Shariat Court (Khan Zaman v The State)
Although accused had not attained the age of 18 years, he would surely be treated an adult within the meaning of S.2 (a) of the Ordinance, if he was capable to ejaculate and discharge semen.
1987 PCRLJ 438 Lahore High Court (Muhammad Aslam v Muhammad Sarwar)
This case involved the rape of a 5 year old. The accused, 10/11 years of age, was granted bail by the Trial Court 7 days after the arrest. When hearing the challenge to the grant of bail, this Court held that while the determination of the age of the accused is to be made at trial, the accused who is a non-adult cannot claim bail as a matter of right for a non-bailable offence.
1984 PCrLJ 1856 Lahore High Court (Mian Khan v The State)
Determination of age by medical examination is always a probable determination and one cannot say with certainty about age of person examined by doctor.
1984 PLD 20 Federal Shariat Court (Sarwar v The State)
Potency in medical science and Buloogh in Sharia are not different.
1980 PLD 386 Lahore High Court (Sughran Mai v The State)
Attainment of puberty by a girl is presumed at age of 15 years and she becomes major either on completion of fifteenth year or on her attaining age of puberty earlier. Where she makes a declaration of her attainment of puberty, it must be given full credit particularly when her general appearance is also confirming her statement.
Case Law for Section 3
2011 PLD 1 Federal Shariat Court (Mian Abdul Razzaq Amir v Federal Government of the Islamic Republic of Pakistan)
Introduction of Ss.11 & 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 is an unwarranted inroad in the legislative domain and consequently an unlawful interference to Hudood. Provisions of Ss.11 & 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 are repugnant to the Constitution as well as Injunctions of Islam. Section 3 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.19 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 shall be deemed not to have been repealed and are as valid and essential part of the two Hudood Laws. The Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps should be taken by the Federal Government to amend the impugned laws in conformity with the present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.
1985 PCRLJ 1030 Karachi High Court (Niaz Muhammad v The State)
If there is any provision in any other law, repugnant to the 1979 Ordinance, provisions of latter shall prevail and provisions of other law shall be ineffective or shall be deemed to have superseded to extent of repugnancy.
Case Law for Section 4
2006 MLD 802 Karachi High Court (Muhammad Ali v The State)
Man and woman having been found simply sleeping in half-naked position did not amount to committing of sexual intercourse for purposes of S.4.
2005 PCrLJ 1596 Federal Shariat Court (Muhammad Imran v The State)
Police Officer had only gone to the building to arrest a proclaimed offender and thereafter entered into the room where the accused were allegedly residing. Police Officer stated that the accused were preparing to commit Zina in the said room. This Court held that the Police Officer had no authority whatsoever to enter into the room of accused which was separately located; it was amply demonstrated and was clear from the facts that not even one of the ingredients of S.4 of Offence of Zina (Enforcement of Hudood) Ordinance; 1979 was present in the case and police officer had acted without lawful authority and without jurisdiction to register case against accused—Police officer had violated privacy of the accused which was forbidden under Art.14 of the Constitution. Police officer had transgressed, disregarded and violated provisions of the Constitution, by invading privacy of accused. He could not enter the house of a private citizen unless possessed warrants of arrest.
2004 PCRLJ 1175 Lahore High Court (Razia Bibi v The State)
Petitioner/alleged abductee and co-accused had contracted marriage through a Nikkahnama, which had the presumption of truth and both were living as husband and wife and two children had been born out of this wedlock. The Petitioner categorically stated that she was not abducted and had contracted marriage with co-accused with her free consent. Since she was more than 18 years at the time she contracted marriage with the co-accused, according to age certificate issued by Board of Doctors, she was sui juris at the time of her marriage and could not be said to have committed Zina.
2004 MLD 970 Federal Shariat Court (Afzal Masih alias Noor Masih and another v The State)
The accused had claimed that they were previously Christians, but subsequently embraced Islam and married each other with mutual consent. To decide whether offence of Zina was made out or not, the status and position of respective parties had to be seen at the time of alleged commission of Zina. Accused who were adults and entered into a valid Nikah after embracing Islam, if had committed sexual intercourse, their case did not fall within purview of S.4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2003 PCRLJ 372 Lahore High Court (Asma Bibi v Superintendent of Police, Jaranwala)
the petitioner being sui juris had contracted marriage with the respondent with her own free-will and consent and that her Nikkahnama had been duly registered at the relevant office. Petitioner had alleged that the impugned First Information Report had been registered malafidely by her father after distorting true facts. The Petitioner also filed an affidavit in support of her plea. Record had established that the petitioner was real niece of the wife of the respondent and that the respondent had contracted second marriage with the petitioner during the existence of his first marriage. Question was as to whether a person could contract second marriage with the niece of his wife who was still in his Nikkah and that consummation of said marriage would make them guilty of offence falling within the ambit of S.10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Applying the formula that if one of the said two ladies was presumed to be a male then Nikkah between both of them would be invalid, marriage of the petitioner with the respondent which was later in time was not a valid marriage. Prima facie the act of sexual intercourse committed by the petitioner with the respondent in lieu of said Nikkah was nothing but commission of Zina falling within the purview of S.4 read with S.10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979
2002 PLD 187 Lahore High Court (Aisha Alias Nasim v The State)
The accused female who was Christian, had embraced Islam and on the very day that she entered into Nikkah with a Muslim without observing procedure which was to be adopted by her for entering into marriage after conversion of religion. This Court found that since she was an uneducated woman and the procedure to be adopted was not known to her, no mens rea for commission of Zina existed.
1999 MLD 2622 Federal Shariat Court (Lal Muhammad v The State)
Part penetration having been proved, case against accused was not of attempt to commit Zina or Zina-bil-Jabr as contemplated under S. 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but was commission of Zina as contemplated by Ss. 4 & 10(3) of the Ordinance. Accused was convicted and sentenced under S. 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but sentence of whipping was remitted under proviso to S.3 of Abolition of Punishment of Whipping Act, 1996.
1997 PCRLJ 1666 Federal Shariat Court (Sanaullah v The State)
The expression “wilfully” used in S.4 of Ordinance VII of 1979 means that an act done wilfully has to be backed with a determination containing mens rea. Wilful commission of Zina cannot be alleged against a person who believes for good reasons that the woman with whom he is having sexual intercourse was his wife and he had entered into marriage with her lawfully.
1996 MLD 1642 Federal Shariat Court (Pervaiz v The State)
Zina is commission of wilful intercourse by a man and a woman without being validly married to each other and it is converted into Zina-bil-Jabr when the same act takes place against the will and/or without the consent of the victim, or with the consent of the victim having been obtained by putting him or her in fear of death or hurt or was made to believe himself/herself to be validly married.
1994 SCMR 2098 Supreme Court (Zahida Shaheen v The State)
Word “Zina” as defined in the Ordinance covers both “void” and “irregular” marriages. Void marriage can fall within definition of “Zina liable to Hadd” and an irregular marriage can fall within definition of “Zina liable to Tazir“.
1992 SCMR 1273 Supreme Court (Allah Dad v Mukhtar)
Where there is clash between an existing law and the Injunctions of Islam with regard to the validity of marriage, the Injunctions of the Islam shall prevail for the purpose of the Ordinance.
1989 PCrLJ 913 Karachi High Court (Muhammad Ismail v Amanullah)
It is essential to prove by evidence that the actual act of sexual intercourse was committed by a man and a woman, in order to prove the offence of Zina as defined and made punishable under Ordinance VII of 1979.
1988 PLD 186 Supreme Court (Bashir v Muhammad Hussain)
The term ẃilfully’ in the S. 4 implies that there must be a mens rea or guilty mind or guilty intention on part of the accused to convict him of the offense.
1986 SCMR 1731 Supreme Court (Samandar Khan v The State)
In order to satisfy the requirements of the offence of Zina, there are necessary two conditions in addition to sexual intercourse that need to be satisfied: (i) that there should not be any valid marriage and (ii) that sexual intercourse should be wilful.
1985 PCrLJ 110 Federal Shariat Court (Mst Sukhan v The State)
For purposes of commission of Zina, the presence of one man and one woman is essential. The offence can not be committed by one human either male or female or by two or more humans of the same sex or sexless.
A woman can not be punished for Zina if it was committed against her will, forcibly, during sleep, or under the influence of some intoxicant administered against her will.
Mere insertion or entering of male organ, however slight an extent, into the vagina, is sufficient to constitute the offence of Zina. Ejaculation is not necessary to satisfy the requirements of the offence. Lovemaking activities, however objectionable morally and socially like kissing, embracing, lying on the same cot or even lying on each other does not satisfy the requirements of the offence of Zina.
1983 SCMR 942 Supreme Court (Ghulam Shabir Shah v The State)
In S. 4 the, while defining Zina the word marriage has been qualified by the word validly, while in S. 5 it has been used without this qualification. A valid marriage has been defined as ¨marriage contracted and solemnized in accordance with Sharia and all its constituents and conditions without any legal impediments.¨ Law recognizes the distinction between valid and invalid marriages and in the category of invalid marriages are placed the irregular marriages and void marriages. An irregular provides no protection where the law, as in S. 4, requires a valid marriage. On no principle of interpretation of statutes can the word ¨validly¨ be ignored or treated as redundant or surplusage.
Case Law for Section 5
2002 PLD 1 Federal Shariat Court (Mst Zafran Bibi v The State)
In order to suffice as proof of Zina or Zina-bil-Jabr liable to Hadd, there must exist either a confession of the accused of commission of offence of Zina, before a Court of competent jurisdiction, or, in the alternative, ocular evidence of at least four Muslim adult male witnesses whose veracity conforms to the standard of Tazkiya-al-Shahood (purgation).
2005 PCRLJ 1071 Federal Shariat Court (Abdus Samad v The State)
The prosecution is required to prove the offence beyond all reasonable doubt and sp, where no evidence is brought by the prosecution to implicate the accused, benefit of doubt must be extended in favor of the accused.
2005 PCRLJ 1071 Federal Shariat Court (Abdus Samad v The State)
According to the facts of this case the accused claimed to have legally married the victim but his suit for restoration of conjugal rights before the Family Court has concluded in the finding that no valid Nikkah existed or had been solemnized between the two. This Court took this finding as negation of his claim of marriage and held that the medical report confirming sexual intercourse between the two and the disposition of the victim together are sufficient to find the accused guilty of the offence under S. 5.
2002 YLR 3064 Federal Shariat Court (Farman Ali v The State)
This case involved the allegation of Zina which led to pregnancy of the female and birth of a child, who was later murdered. No legal evidence was on record to prove the offence of Zina against the male accused. Male accused were convicted by Trial Court relying on an application filed by the female accused before the police in which she had alleged that the male accused, who were residing in her neighbourhood had committed sexual intercourse with her. The Trial Court also relied upon medical evidence to the effect that male accused were capable of committing sexual intercourse. This Court held that these two facts on which the Trial Court had relied, by themselves, were of no help to advance prosecution’s case which required strong independent evidence free of any reasonable doubt. The female herself being an accused in the case, her statement could not have been relied upon and read as evidence against her male co-accused. In the absence of any other evidence to prove that male accused had committed offence of Zina, said two facts were mere surmises and conjectures and could be used only as corroborative piece of evidence. The female accused, though in her application made before police had categorically stated that she was forcibly subjected to sexual intercourse by accused, but her silence till such time that her pregnancy became known to family, had been wrongly considered as circumstantial evidence corroborating contents of her application holding her a consenting party of offence of Zina. No allegation was on record against the female accused to the effect that she was of easy virtue or that she had developed illicit relations with male accused. Statement of the female accused having not been given due consideration in appraisal of evidence, her conviction under S.10(2), of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was, not sustainable. Conviction and sentences recorded against all the accused persons by Trial Court, were set aside and they were acquitted of charges against them for lack of direct and substantial evidence.
2000 YLR 278 Peshawar High Court (Shamshad Bibi v The State)
The accused female in this case was 16/17 years old and according to medical report; had attained puberty and appeared to have voluntarily married the male accused. The Nikkahnama regarding the marriage of accused had been placed on the record which was duly registered. The complainant admittedly had married the female accused with some other person during her minority and she had the right to repudiate her marriage after attaining puberty. The Court held that reasonable grounds, therefore, did not exist for believing the accused being connected with the commission of the offence with which they were charged. Bail was granted in the circumstances.
2000 MLD 663 Peshawar High Court (Khurshid Anwar v Arifullah)
In this case, the accused was charged of rape by the abductee, aged 15/16 years. The statement of the abductee was fully supported by medical evidence and there were, prima facie, grounds for believing that the accused was connected with the commission of the offence. In the circumstances, this Court refused to extended benefit of concession of pre-arrest bail.
1998 MLD 344 Federal Shariat Court (Shahbaz v The State)
The Court observed that the accused on account of her lower social status in the village must have surrendered herself to male co-accused under a sort of duress and compulsion. Retraction from her confession by itself had made her entitled to acquittal from Hadd punishment, which was set aside.
1998 PCrLJ 776 Peshawar High Court (Sultan Sher v Atlas Khan)
In this case both the male and female accused made confessions regarding the commission of Zina which, on face of it, were inculpatory. The medical evidence prima facie had supported the prosecution and the Chemical Examiner’s Report also showed that semen stains were detected in swabs taken from vagina of female accused. Conduct of both the accused after leaving their native town and going to one and other place during which they had been indulging in sexual intercourse, though with consent, would not exonerate them from criminal liability. The law as laid down in Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had made both male and female accused equally responsible. When consent was even by one of the parties, the ingredient of offence of Zina would stand completed. Conduct of the male accused who had taken the female accused to another place without the permission of her parents or guardian, would show malice on his part; and the female accused who had accompanied him in a manner which was not akin to social norms of society, had made her equally responsible for enticement and inducement. The record also revealed that the case had been sent up for trial to the Court of Session. This Court, in circumstances would not entertain a bail application, as where trial had commenced and the merits of case were such from which case could not be made out for further enquiry, High Court would not exercise discretion in favour of accused.
1997 MLD 2276 Peshawar High Court (Muhammad Parwaiz v The State)
In this case the, the abductee appeared to have wilfully indulged in sexual intercourse with the accused without believing that she was wedded to him. This Court would consider, if proven, her conduct to be as blameworthy as that of the accused. Since the question whether the accused had deceitfully obtained the consent of the abductee to indulge in sexual intercourse with him required further inquiry, the accused was admitted to bail in circumstances.
1997 PCRLJ 263 Quetta High Court (Dost Muhammad v Khizar Hayat)
For purposes of S. 5, the offence needs to be proved beyond reasonable doubt in order to inflict Hadd or Tazir. Mere doubt can not form the basis of punishment. Evidence of four witnesses regarding Zina allegedly committed by the woman is essential and no free hand has been given to a husband for slaughtering his wife on account of mere suspicion.
1996 PLD 29 Federal Shariat Court (Farzand Ali v Raja Muhammad Ibrahim)
In this case the allegation was that the male accused (petitioner No.1) could not marry the female accused (petitioner No.2) who was step-mother of his first wife, as unlawful conjunction of mother and her daughter in marriage at the same time was prohibited in Islam. The Court held that although there had been a relationship between the female accused and first existing wife of male accused in the past as female accused was the wife of her father, but after the death of her father she was a complete stranger to her, having no relationship of consanguinity, affinity or fosterage. In the absence of any other relation, Nikkah of the female accused with the male accused could not be held unlawful merely on the ground that female accused had remained wife of the father of existing wife of male accused. Inter se marriage of both the accused being valid, no case was made out against them under any provision of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 hence the the complaint case was set aside and proceedings initiated against them were quashed.
1996 PCrLJ 717 Peshawar High Court Muhammad Sheraz v The State
In this case the complainant, an unmarried girl of 16/17 years of age had directly charged the accused in the First Information Report for the commission of the offence and her version was supported by the prosecution witnesses, medical evidence and the recovery of the gun at the instance of the accused. There appeared no ulterior motive for false implication of accused. Hence reasonable grounds were available to believe the connection of the accused with the commission of the alleged offence. Bail was declined to accused in circumstances
1993 PCRLJ 1900 Federal Shariat Court (Jafar Hussain Shah v The State)
Hadd punishment shall not be imposed when a doubt is created either in the proof regarding the commission of the offence or according to Hanafis in the form of contract of marriage in the cases of allegation of Zina. Contract of marriage is a sufficient ground for doubt in such like cases even if the illegality of such a marriage be universally admitted. If the accused are aware of illegality of such marriage he/she may be awarded Tazir or a lighter punishment at the discretion of the Judge, but not the Hadd punishment. If the accused, male and female, acknowledge to have been wedded and this fact is not rebutted, it is sufficient in Shariah to absolve them of the criminal liability under Hadd punishment.
1984 PLD 135 Federal Shariat Court (Mushtaq Ahmed and Another v The State)
In this case the accused initially pled guilty as a result of a misunderstanding but later retracted their statements. The Trial Court however, went on to impose Hadd on the basis of their confession. This Court held that sentence passed despite retraction is invalid.
1981 PLD 145 Federal Shariat Court (Hazoor Bakhsh v Federation of Pakistan)
This Court when interpreting the meaning of Surah 24, Verse 2 of the Holy Quran concluded that Zina includes sexual intercourse between man and a woman not married to each other and pplies to both adultery and fornification. It further ruled that the provision of sentence of “rajam” (stoning to death) as Hadd in Ss. 5 and 6 of Ordinance VII of 1979 was repugnant to the injunctions of Islam and the infliction of one hundred stripes alone constitutes Hadd.
1980 PLD 386 Lahore High Court (Sughran Mai v The State)
Doctrine of doubt or ´shubha fil-aqd´ has been duly recognised in S. 5 of Ordinance. Hence punishment of Hadd can be avoided on ground of such doubt.
Case Law for Section 6
2003 PLD 747 Lahore High Court (Mst Saima v The State)
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 the circumstances enumerated in S.6(1) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
1998 MLD 1207 Chief Court Gilgit (Rashid Ahmed v The State)
The charge against accused was that they made victim unconscious by entertaining her with green tea mixed with medicine and committed gang rape on person of the victim one by one. The accused were directly charged in the First Information Report by the complainant herself. Three sedative tablets were recovered from accused during their personal search—Accused had made inculpatory confession before Magistrate that they had committed rape on person of victim–Accused who were found connected with alleged offence, were not entitled to bail.
1997 PCrLJ 1351 Federal Shariat Court (Muhammad Ashraf v The State)
In this case the Court rules that the expressions ¨against the will¨ and ¨without consent¨ in the provision have been used to cover two different situations and intercourse in either situation will amount to Zina-bil-Jabr. It further noted that Muslim jurists have discussed the subject of Jabr under the heading Ikrah, which may be inferred from the very situation in which the victim may find herself unable to protest or has no control over the event. In this case hence, the very position of command, authority and sustenance that the accused-father had over the victim-daughter was sufficient to constitute Jabr.
1996 MLD 1642 Federal Shariat Court (Pervaiz v The State)
Zina is commission of wilful intercourse by a man and a woman without being validly married to each other and it is converted into Zina-bil-Jabr when the same act takes place against the will and/or without the consent of the victim or when the consent was obtained by putting him or her in fear of death or hurt or was made to believe himself/herself to be validly married
1994 SCMR 2101 Supreme Court (Yousaf Masih v The State)
Sexual intercourse committed with a non-adult girl would always be covered by definition of Zina-bil-Jabr as, given in S. 6 of the Ordinance.
1988 PLD 58 Federal Shariat Court
When a person satisfies his lust on a dead body he can be held guilty of Zina-bil-Jabr as defined in S.6 of the Ordinance.
Case Law for Section 7
2010 PCrLJ 231 Federal Shariat Court (Mst Shehnaz alias Asma alias Rani v The State)
The spirit of enacting provisions describing punishment for Zina and Zina-bil-Jabr was to punish such offences which had been witnessed by at least four Muslims, adult and male eye-witnesses. Even in Tazir, where the requirement of four witnesses was not essential, the direct evidence must be of a person who was a material witness; and not one who hunted a sinner and then took pride in becoming a witness for the prosecution. Such a conduct was violative of the injunctions of Islam which encouraged covering the sins of others.
2006 PCrLJ 1183 Federal Shariat Court (Ghulam Murtaza alias Gabban v The State)
Trial Court in its judgment had observed that the age of accused was 12 years and he was minor at the time of commission of alleged offence. Doctor who had examined the accused stated that accused was aged 13/14 years, but according to Radiologist report age of accused was in fact, 12 years. The Medical Officer was of the opinion that the accused was capable of performing sexual act. Section 7 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 provides that a person guilty of Zina or Zina-bil-Jabr, if he was not an adult, would be punished with imprisonment of description for a term which could extend to five years. Hence the conviction of the accused, being not adult, was converted to under S.7 of the Ordinance and his sentence was converted to that already undergone by him accordingly.
2004 PCRLJ 843 Federal Shariat Court (Muhammad Hanif v The State)
In this case the testimony of the complainant himself as an eyewitness and the statement of victim girl who was dumb since birth, were both considered equally important. The victim has identified the accused by pointing out her finger towards him. The Court was of the opinion that she being young and disabled could not have implicated the accused falsely. Other prosecution witness had also lent support to the prosecution evidence as they claimed having seen the accused running away from near the place of occurrence which had established that accused was present at the time of occurrence. The Doctor’s report was supported by report of Chemical Examiner in which the accused was found to be aged 14/15 years old at the time of occurrence and was student of 8th class. The Court observed that the usual leniency accorded to youngsters and the students can not be extended in the present case because not only was the offence very heinous but had been committed against a disabled victim. The accused had already been awarded five years keeping his age in view. The Conviction was maintained under Ss.7 and 10(3) of the Ordinance but his sentence was reduced from five years to three years.
2004 PCrLJ 1513 Federal Shariat Court (Abdul Razzaq v The State)
In this case the accused was proved on record to have kidnapped the victim girl and to have subjected to her to Zina-bil-Jabr subsequently. The school leaving certificate of the accused and his confinement in Juvenile Jail had established that he was a minor at the time of the commission of the offence. The conviction of accused under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was therefore, altered to one under S.7 of the said Ordinance.
2001 MLD 310 Lahore High Court (Ghulam Dastgir v The State)
Where the accused persons were not adults as defined by S. 2 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, they could not be convicted under S.10(4), and could only be convicted under S.7 of the Ordinance.
1998 PCrLJ 656 Federal Shariat Court (Ali Hussain v The State)
In this case the ocular testimony, material evidence, medical reports and witness testimonies had all proved the commission of the offence by the accused, who had been found 14 years of age by the Medical Officer. This Court concluded that he could be given benefit of doubt with respect to his age in the absence of precise proof of his adulthood despite Chemical Examiner’s positive Report. Maximum punishment of five years was awarded under S.7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
1997 PCrLJ 1639 Federal Shariat Court (Muhammad Khalid alias Kach v The State)
In this case the Medical Officer, on examining the accused, had found him fit for sexual act and certified him to be mature and having attained puberty. The accused was a 10th class student at the time of his examination and having failed thrice, meant that his age would be 18 years or so at the time of registration of the First Information Report. He had been committing sexual intercourse with the female co-accused with her consent without being validly married to her and so his conviction under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were upheld except the sentence of whipping which was set aside being unwarranted under the law after promulgation of Abolition of Punishment of Whipping Act, 1996.
1996 MLD 189 Lahore High Court (Muhammad Nadeem v The State)
This Court held that the lesser punishment provided for non-adults under S.7 of the Ordinance was not available to convicts under S.12 for kidnapping persons to subject them to unnatural lust. The lesser punishment under S.7 of the Offence of Zina (Enforcement of Hudood) Ordinance, extends only to the offence of Zina or Zina-bil-Jabr where the accused is not an adult.
1993 PCrLJ 1934 Federal Shariat Court (Subbago v The State)
This Court held that the burden of proof to show that the accused falls within any exceptional category is solely on he accused. In the present case the accused raised the issue if his young age as an afterthought and so could not be considered within the purview of S.7 of the Ordinance.
1992 PCrLJ 1799 Federal Shariat Court (Kashif Nadeem alias Pappi v The State)
Where the offence committed by the accused was that of sodomy and not Zina, provision of S.7 would not be attracted but S. 377 of the Pakistan Penal Code would be applicable.
1991 PCRLJ 2263 Federal Shariat Court (Javed Iqbal alias Daidi v The State)
In this case the age of the accused, according to his school leaving certificate was 13. The doctor who examined the accused found him capable of sexual intercourse and reported that his secondary sex characteristics has not fully developed yet. The doctor had not conducted an examination that could conclude whether he has attained puberty or not so the benefit of doubt extended to the accused on the ground that he might not be an adult; but such fact by itself would not be sufficient to negate and rebut the Chemical Examiner’s evidence on the factum of sexual act having been performed with the victim.
1988 MLD 1504 Peshawar High Court (Mushtaq Ahmed v The State)
This Court held that contentions pertaining to the nature of the offence and the decision as to under which provision of Ordinance would the accused fall is a question to be determined at trial in light of evidence adduced by the parties. This matter was not relevant at bail stage.
1988 PCrLJ 1458 Federal Shariat Court (Bayazid alias Kali v The State)
In this case no medical evidence for age of accused, produced at trial therefore the accused was entitled to benefit of S.7 of the Ordinance because of age limit of 18 years for adulthood. Hid conviction and sentence altered from one under S.10(3) to under S.7 in circumstances.
1984 PLD 20 Federal Shariat Court (Sarwar v The State)
In this case the medical and material evidence about capability of male for committing sexual intercourse sufficiently proved his adulthood. Evidence of ejaculation during intercourse further confirmed the finding and so he was not entitled to benefit of S. 7.
1984 PLD 400 Supreme Court (Zakaullah alias Zaka v The State)
This case admittedly did not concern actual Zina-bil-Jabr but only an attempt to do the same by a non-adult, so the punishment under S.18 will be read with S. 7 and reduced to two years and six months. The Ordinance treats Zina committed by an adult different from Zina committed by a non-adult therefore offence in S.s 7 and 10 are treated as separate offences with separate punishments. An attempt to commit the offence under the former does not amount to an attempt to commit the offence under the latter, particularly having regards to the words ¨subject to the provisions of S.7¨ in the beginning of S. 10. Hence where there is an attempt to commit Zina-bil-Jabr by a non-adult the maximum sentence will be two years and six months.
1981 PLD 317 Federal Shariat Court (Muhammad Latif v The State)
This case involved an allegation of Zina-bil-Jabr against a 5 years old girl by her own brother. The accused, on medical examination, was found to be an adult, having attained puberty despite being less than 18 years. It was held that circumstantial evidence against the accused proved commission of Zina by him and as an adult he was not entitled the benefit of section 7 and was guilty of offence under S. 10(3).
1981 PLD 115 Federal Shariat Court (Muhammad Rafiq and Another v The State)
Mere assertion of being a non adult by accused the in his statement, without positive attempt to substantiate the claim is not sufficient. The accused ought to have demanded examination of his person by a Medical Expert on such point to bring the offence under purview of S. 7 of Ordinance.
Case Law for Section 8
2002 PLD 1 Federal Shariat Court (Mst Zaffran Bibi v The State)
To qualify as proof of Zina or Zina-bil-Jabr liable to Hadd, for purposes of S.8 of the Ordinance, there must be either a confession of the accused of commission of offence of Zina, before a Court of competent jurisdiction, or, in the alternative, ocular evidence of at least four Muslim adult male witnesses whose veracity conforms to the standard of Tazkiya-al-Shahood (i.e. purgation).
2001 MLD 1939 Federal Shariat Court (Shazia Aslam v The State)
“Court of competent jurisdiction” referred to in S.8(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, means the Trial Court constituted under the said Ordinance and not any other Court and though a confession made before the Trial Court would be sufficient proof of Zina or Zina-bil-Jabr liable to Hadd within the purview of S.8(a) of the Ordinance, yet it would not mean that any confessional statement recorded by a Magistrate under the provisions of Criminal Procedure Code was irrelevant for the purpose of Tazir.
1999 SCMR 935 Supreme Court (Maqbool Ahmed v Shaikh Muhammad Anwar)
The law of Li´an, according to the Islamic fiqh, requires that when a husband expressly levels a charge of Zina against his wife, he is required to produce four eyewitnesses according to the standard provided for Zina liable to Hadd. If he fails to do so, the wife can complain before the competent Court that her husband has levelled a false charge against her, and on her demand the Court can call the husband to undergo the procedure of Li´an.
1997 PCrLJ 263 Quetta High Court (Dost Muhammad v Khizar Hayat)
In order for Zina to be liable for Hadd, evidence of four witnesses regarding Zina allegedly committed by the woman is essential and no free hand has been given to a husband for slaughtering his wife on account of mere suspicion.
1994 PLD 17 Federal Shariat Court (The State through Advocate General, NWFP Peshawar v Ghulab Hussain alias Ghulam Hussain)
For purposes of recording a confession, a Magistrate is not a Court of competent jurisdiction within the meaning of S.8 of the Ordinance.
1992 PCrLJ 412 Peshawar High Court (Mumtaz Khan v The State)
In order for it to be effective in a case under the Ordinance, 1979, a confession must be recorded by Trial Court and a Magistrate would not be competent to undertake that exercise. Any confessional statement recorded by a Magistrate, would have no legal effect.
1990 PCrLJ 1878 Federal Shariat Court (Gul Munir v The State)
In this case confessions were recorded during the course of investigation but were retracted at the trial and the accused were not prepared to make confessions before the Trial Court within the meaning of S.8(a) of the Zina Ordinance, 1979. Hence, the Court held that the punishment of Hadd could not be imposed for the offence of Zina, but nonetheless their retracted judicial confessions made voluntarily could be used as a proof against the person making it and could be considered as circumstantial evidence against co-accused at a joint trial for the same offence.
1988 PLD 58 Federal Shariat Court
Confession remains as evidence against the accused only till the time that it has not been retracted. Once it is retracted, the Court, even if it has passed Hadd sentence, will have to either acquit the accused or order retrial. If the retraction is made before the announcement of the judgment, trial Court shall not rely exclusively on the confession and may either decide the case on other evidence provided or it may order retrial as laid down in S.9(4) of the Ordinance.
1984 PCrLJ 365 Lahore High Court (Sheran Bibi v The State)
Allegations of Zina arising merely in form of presumption cannot be entertained. It is necessary there either be four or less than four eye-witnesses of commission of offence or a confessional statement made by accused before competent Court.
Case Law for Section 9
2003 PLD 747 Lahore High Court (Mst Saima v The State)
In this case, the complainant had stated before the Trial Court that the marriage between the present petitioners was fake because the Father Reverend alleged to have performed the Nikah had no licence to do so in terms of Christian Marriages Act, 1872. Hence the present petitioners (female and male) had committed Zina. Both the petitioners, however, stated that they were married. Hence the condition precedent for the offence alleged, prima facie; did not exist. Article 35 of the Constitution of Pakistan (1973) and Art. 16 of the U.N. Convention on Elimination of all Forms of Discrimination Against Women had mandated to provide protection to the marriage and the institution of family by the State. Prosecution launched against the petitioners, prima facie reflected not only malice in fact but also malice in law.
1988 PLD 58 Federal Shariat Court
In this appeal, this Court appreciated the entire material brought on record and held that no sentence of Hadd in Zina case could be imposed without the required four eye-witnesses and in no case could it be based on circumstantial evidence. When no eye-witness of the occurrence was produced and there was no direct evidence of any sort on the record, and other circumstantial evidence referred by the prosecution did not show even the remotest involvement of the accused, prosecution had failed to connect the accused in any way with the crime. An order of conviction based on such evidence was thus bad in law.
1984 PLD 135 Federal Shariat Court
This Court held that when the making of confession is disputed and has not been admitted by accused, the Trial Court must determine the question of whether the confession had been made by accused or not.
Case Law for Section 10
2016 SCMR 1554 Supreme Court (Haider Ali v The State)
In this case involving an allegation of gang rape, the First Information Report was lodged with a delay of one day and the complainant had admitted before Trial Court that the First Information Report had been lodged after deliberation. The victim also changed her version of the incident during the trial which this Court took as pointing towards the falsehood of the story. Medical evidence did not show any marks of violence on any part of victim’s body despite an allegation that she was raped nine times by three people. The doctor who medically examined the alleged victim clearly found that her hymen had been torn a long time ago. The accused had not been nominated in the First Information Report and no test identification parade had been held under the supervision of a Magistrate so as to positively incriminate them. Prosecution had only relied upon identification of accused by the alleged victim before the Trial Court and such identification was not reliable. No DNA test had been conducted nor any semen matching was undertaken so as to conclusively establish that the semen found on the vaginal swabs of the alleged victim belonged to any of the accused. Based on all of the above, the accused were acquitted of the charge by extending them the benefit of doubt.
2016 SCMR 1617 Supreme Court (Muhammad Ashraf v The State)
In this case involving charges of Zina-bil-jabr and murder, this Court decided the appeal based on the following: commission of rape and sodomy with the deceased or her murder or even concealment of her dead body had not been seen by anyone; the prosecution’s witnesses could not offer testimony that corroborated with the factual events; the accused had allegedly made a judicial confession before a Magistrate which was retracted before the Trial Court and, thus, the said confession could not be relied upon in the absence of any independent corroboration; and the prosecution made some recoveries of incriminating articles allegedly at the instance of the accused but the memoranda of such recoveries had dates tampered with and identification of the relevant articles was quite doubtful as the prosecution had failed to convincingly establish that the recovered articles actually belonged to the deceased. The case of the prosecution against the accused was hence, primarily based upon suspicion. The accused was acquitted of the charge in such circumstances by extending him benefit of doubt.
2016 PCrLJ 780 Lahore High Court (Qamar Zaman v The State)
In this case the accused were convicted and sentenced to death under Sections 10 and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The High Court confirmed the death sentence, and appeals and review were dismissed up to the Supreme Court. The accused subsequently, having entered into compromise with victim and her father, filed application under S. 338-E, Pakistan Penal Code before the Trial Court, which was dismissed. The contention of accused in the present appeal was that at the time of occurrence of the offence they were minors, and so their case was covered under Juvenile Justice System Ordinance, 2000 and the sentence of death inflicted upon them was not maintainable, particularly after the compromise. The accused had been declared juvenile by the Trial Court on their application filed under Juvenile Justice System Ordinance, 2000. The Trial Court, after recording statements of victim and her father, had concluded that parties had entered into a genuine compromise. Hence death sentence of those condemned prisoners who were “juveniles” as defined in Juvenile Justice System Ordinance, 2000 at the time of commission of offence, would stand commuted to life imprisonment provided the death sentence had been awarded under Tazir.
2015 SCMR 155 Supreme Court (Imran alias Dully v The State)
In this case the accused was alleged to have kidnapped the victim-girl, whereafter he committed Zina-bil-Jabr upon her and then killed her. The accused allegedly led the police to his house, where blood stained sheet was recovered. The Trial Court awarded death sentence, which was reduced to life imprisonment by the Federal Shariat Court. This Court observed that according to the prosecution the offence commenced and was consummated within the compound of an uninhabited house and even the last seen evidence did not suggest that the accused was carrying the said sheet when he was allegedly seen in the company of the deceased. There was no reason for the accused to keep the sheet in his house for days, when the blood thereon could be easily washed away. The sheet in question appeared to be a planted and fabricated piece of evidence and deserved to be rejected. Shariat Appellate Bench of the Supreme Court acquitted accused of all charges levelled against him and set aside his conviction and sentences.
2015 PCrLJ 53 Federal Shariat Court (Muhammad Yousaf v The State)
In this case the alleged offence of Zina having occurred at night and so the existence of light was never claimed, either in the First Information Report , or in the statement of the witnesses, but it was brought on record during trial by clear improvement. Such improvement was seen as an afterthought by this Court which further noted that no notable person of the village was examined as a witness. Additionally, the First Information Report was lodged after 6/7 days, without any reasonable explanation for such delay. As to how and why the Police reached the crime scene early in the morning was also unexplained. Medical examination of alleged victim was conducted seven days after the occurrence of the crime after which it was found that the vagina of the alleged victim admitted two fingers easily. In the case of an unmarried girl of sixteen years of age, this appeared to point towards her lack of fair virtue. No D.N.A. test, which was necessary to determine the semen grouping and matching of swabs with the sperms of accused, was conducted in the case. Hence the accused, in circumstances, could not be linked with the commission of offence and was acquitted.
2014 YLR 2116 Federal Shariat Court (Mst Sajida Bibi v Mukhtar Ahmed)
In this case concerning an allegation of Zina-bil-Jabr, the First Information Report was lodged after 4/5 days of the occurrence without any plausible explanation. Medical test of the victim was conducted after 5 days of the incident and the father of the victim was not produced as a witness before the Trial Court. The victim sustained no injury during the alleged incident of rape and the medical report confirmed that no mark of violence or injury was found on the person of victim. This fact alone cast serious doubts about the alleged act having been committed. The testimony of the prosecution witness who gave ocular account in respect of the incident, was also doubtful as he was a resident of another town, situated about three kms away from the town of the victim. The prosecution failed to produce the clothes of victim which she was wearing at the time of incident, which could play a major role in case of rape, particularly when same was said to have been stained with semen and blood as per the statement of the victim. The victim had recorded her statement before the Magistrate, but the said Magistrate was not examined before the court to substantiate such statement. Sole testimony of prosecutor, in such circumstances, could not be believed, as it depended upon the facts and circumstances of each case, and had to be assessed by the court on the basis of the entire evidence on the record. Impugned judgment of acquittal passed by the Trial Court was upheld.
2014 YLR 1717 Federal Shariat Court (Mst Lal Khatoon v The State)
In this case involving a charge of Zina-bil-Jabr, a delay of six days in the registration of the case, being genuine had plausibly been explained and so no adverse inference could be drawn regarding the truthfulness of the prosecution story, merely, on account of delay. Minor contradictions between the statements of the victim and prosecution witness, were neither material, nor sufficient to disbelieve the prosecution story, as such statements were recorded by the Trial Court after more than seven years of the occurrence of the alleged crime. Despite minor contradictions in the statement of prosecution witness, his evidence could not be discarded. Mere absence of marks of injury or violence on the victim’s body, would not imply non-commission of rape as the existence of marks of struggle, depended on capability of the victim to offer resistance. In the present case, the victim was a married lady of 38 years, having suddenly been overpowered by a young man of about 22 years and it is reasonable to suppose that the victim could not have resisted the assault with physical force. Non-recovery of the knife, allegedly being carried out by accused at the time of occurrence, was also not fatal to the prosecution story, as the complainant could not be held liable for any lapse on the part of the Investigating Officer. No previous enmity existed between the complainant and accused which could have resulted in the false implication of accused. Solitary statement of the victim, if found to be confidence-inspiring, was sufficient to record conviction of the accused without any corroboration. Swabs taken from the vagina of the victim, were found to be stained with semen by the Chemical Examiner and the lady doctor had stated that the victim was subjected to sexual intercourse. The statement of the victim was fully supported and corroborated by medical evidence and the Trial Court had no justification to acquit accused of the charge, in the circumstances. Impugned judgment, whereby the accused was acquitted by the Trial Court, was set aside. A period of more than 20 years having elapsed, since the occurrence of the crime, till the decision of the present appeal, the same was a mitigating factor for awarding a lesser punishment to the accused. Ends of justice, would adequately be fulfilled, if a lesser punishment was awarded to accused. This Court maintained the conviction of the accused, sentenced him to four years.
2017 YLR 853 Federal Shariat Court (Syed Talib Hussain v The State)
In this case involving a charge of Zina-bil-Jabr an inordinate delay of 2 months and 13 days in registration of First Information Report , was not cogently and plausibly explained by the complainants. Additionally, this Court observed that no one had witnessed the accused committing the alleged crime. The Court further noted that no man of ordinary prudence would try to commit rape with a woman in a narrow thickly populated street without locking/bolting the door of the room/house According to the prosecution’s story, the inhabitants of the street had gathered on the spot immediately after the occurrence on hearing the hue and cry of the complainant and the victim; but, none of them had appeared in the Trial Court in order to support the allegations of the complainant. Test of the veracity of the statement of the prosecutrix, no doubt was the inherent merit of her statement, but solitary statement of the victim was neither trustworthy, or confidence inspiring, nor supported by medical evidence. The victim alone could not be relied upon for recording conviction of accused, in the circumstances. The statement of accused which was supported by a number of documents was more convincing as compared to the evidence of the complainant, which was not only contradictory, but also not worthy of any credence. The Inquiry Officer in his report had clearly mentioned that real dispute between the parties was regarding vacation of the house in possession of the complainant as a tenant hence chances of false implication of accused by the complainant could not be ruled out in the circumstances. The Trial Court disbelieved the evidence of the complainant to the extent of presence and participation of two co-accused, but had convicted the accused based on the same evidence. The entire occurrence as narrated by the complainant in the First Information Report was not believed, which fact alone had created a serious dent in the veracity of the prosecution story, benefit of which must accrue in favour of accused as a matter of right and not of grace. Impugned judgment of the Trial Court was set aside by Federal Shariat Court and accused was acquitted of the charges and was released.
2014 YLR 1089 Federal Shariat Court (Mst Irshad Bibi v Nisar Ahmed)
In this case the main accused with whom alleged abductee had contracted marriage of her own free will and consent, had died after the impugned judgment of Trial Court, and during the pendency of appeal which had rendered the appeal infructuous; after the death of main accused, there remained no criminal liability of the remaining accused persons. In the present case, appeal, even to the extent of remaining accused persons, being no more maintainable, was liable to be dismissed. This Court found that no injustice had been done in the administration of criminal justice by the Trial Court, while passing impugned order of acquittal.
 The Council of Islamic Ideology, founded in 1962, is a constitutional body that advises the legislature whether or not a certain law is repugnant to Islam, namely to the Quran and Sunnah.
 He was a prominent Syrian politician, twice served as the Prime Minister of Syria, Speaker of the Syrian Parliament, President of the World Muslim League and advisor to several Saudi Kings.
¨377. Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which [shall not be less than two years nor more than] ten years, and shall also be liable to fine.
*Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section.¨
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 Article 35: Protection of family, etc. The State shall protect the marriage, the family, the mother and the child.
 338-E. Waiver or compounding of offences:
(1) Subject to the provisions of this Chapter and Section 345 of the Code of. Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of Sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences:
Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award ta’zir to the offender according to the nature of the offence.
Provided further that where an offence under this Chapter has been committed in the name or on the pretext of honour, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case.
(2) All questions relating to waiver or compounding of an offence or awarding of punishment under S. 310, whether before or after the passing of any sentence, shall be determined by trial Court:
Provided that where the sentence of qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the trial Court.