1995 PLP 1356 (SCMR)

Hafiz S.A. Rehman, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant. Malik Rab Nawaz Noon, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 to

3. Tasleem Hussain, Advocate Supreme Court for the State. Date of hearing: 25th April, 1995. MIR HAZAR KHAN KHOSO, J.‑‑‑The leave granting order reads as under:‑‑ "The learned Additional Sessions Judge, Swabi, had convicted three respondents namely, Muhammad Israr, Ahmad Ali and Shamsul Qamar for having subjected the petitioner Sardar to carnal intercourse. All the three respondents were sentenced under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to 12 years' R.I. with whipping numbering 30 stripes and a fine of Rs.20,000 or two years' R.I. in default. Half of the amount of fine, if realised, was ordered to be given to the appellant by way of compensation under section 544‑A, Cr.P.C. However, the benefit under section 382‑B,. Cr.P.C was allowed to the respondents. The respondents filed an appeal before the Federal Shariat Court where their learned counsel did not press the appeal against their conviction, but prayed for reduction in their 'sentences. The learned counsel for the State had no objection to the reduction of their sentence, therefore, the learned Federal Shariat Court, while maintaining their conviction, reduced their sentence of imprisonment from 12 years to a term already undergone by them, and number of stripes was reduced from 30 to 10, and the period of imprisonment in case of default of payment of fine was reduced from two years to one year. Now the petitioner who was the complainant in this case seeks leave to appeal against the said judgment of the Federal Shariat Court for the enhancement of their sentences. After hearing the learned counsel for the petitioner, we feel that the following two questions are worth consideration in this case:‑ (i) Whether the petitioner has a locus standi for filing this appeal while he did not file any revision in the Federal Shariat Court, especially in view of the judgment of this Court reported in PLD 1983 SC 233? (ii) Whether the reduction of sentence of imprisonment from 12 years to a period already undergone was just and proper in the circumstances of the case, especially in view of the fact that they were convicted by the learned Additional Sessions Judge on 28‑4‑1993 (while they were earlier on bail) and the judgment of the Federal Shariat Court was delivered on 23‑6‑1993. It means that they did not undergo the punishment of imprisonment for more than 56 days? Leave is , therefore, granted to examine these quests."

2. The facts and circumstances of the case before the Court, the learned Additional Sessions Judge and the Federal Sharait Court have already been narrated in the leave granting order, we need not to repeat the same.

3. We have heard Harz S.A. Rehman, Advocate Sueme Court, with Mr. Ejaz Muhammad Khan, Advocate‑on‑Record, for the appellant, Malik Rab Nawaz Noon, Advocate Supreme Court with Ch. Akhtar Ali, advocate -on‑Record, for respondents Nos.1 to 3 and Mr. Tasleem Hussain, Advocate Supreme Court, for the State, and perused the judgment dated 23‑6‑10'33 passed by the Federal Shariat Court; impugned before us.

4. In para. 2 of the Judgment the Court has observed that the learned counsel for the appellants (respondents herein before us) did got assail their conviction but prayed that sentences of rigorous imprisonment may be reduced to the one already undergone by them. The number of stripes my be reduced from thirty to ten and imprisonment for non‑payment of fine may be reduced from two years to one year each. The learned Additional Advocate‑General, N: W.F.P., had no objection in that regard. In para 3, the Court has further observed that the conviction of the appellants is maintained under section 12 of the said Ordinance but their sentence is reduced as agreed upon by the learned counsel for the parties.

5. The abovesaid observations of the Court obviously reflect that the Court did not apply its mind to the facts of the case, while passing the impugned judgment. It may not be out of place to mention that it is not only obligation of the appellate Court but it is also its bounden duty to go through p the record, assess the evidence produced by the parties and pass appropriate order in the attending circumstances of the case. Prima facie the judgment appears to be defective. As the Federal Shariat Court has not applied its mind to the evidence and circumstances of the case, we are not inclined to consider enhancement of the sentence of the respondents ourselves but remand the case to the Federal Shariat Court for re‑writing the judgment after providing opportunity of hearing to the parties. In case of Muhammad Riaz Ahmad v. Ajmal Hussain and others, reported in PLD. 1983 SC 233 this Court has taken a view that in challan cases with direction of the Provincial Government except Public Prosecutor under section 417, Cr.P.C. none else can file appeal from original or appellate order of acquittal passed by any Court other than the Federal Shariat Court. Obviously the ratio decidendi does not restrict the locus standi of complainant to file appeal against the judgments of the Federal Shariat Court before Supreme Court. Resultantly appeal is accepted, the impugned judgment dated‑23‑6‑1993 is set aside and the case is remanded to the Federal Shariat Court for the abovesaid purpose accordingly. The respondents shall remain on bail. N.H.Q./S‑963/S Case remanded.