2008 P Cr (PLP)

Criminal Miscellaneous No.395/L of 2006 MUHAMMAD ZAFAR YASIN, J.

Through this application appellant Muhammad Iqbal seeks suspension of sentence awarded by Sessions Judge, Sahiwal vide judgment, dated 3rd of August, 2006 whereby the appellant has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to four years' S.I. with fine of Rs.10,000 and in default thereof 4 months S.I. with benefit of section 382-B, Cr.P.C. Learned counsel for the applicant/appellant has argued that Mst. Kanizan Bibi was co-accused of the appellant and she was also tried under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Her statement was recorded under section 342, Cr.P.C. wherein she has stated in reply to Question No.4 as under:-- "It is a false case. The P.Ws. Ghulam Abbas and Muhammad Younis are inimical towards me and they have made false statements against me. In fact, 1-1/2 months prior to 7-1172003 Muhammad Iqbal accused committed Zina-bil-Jabr with me at about 6/7-00 p.m. when I came out of my house to ease myself in cotton crop near my house." While Mst. Kanizan Bibi was medically examined by Lady Dr. Shabana Rasool P.W.6 on 13th December, 2003 and she found that Mst. Kanizan Bibi had last menses on 26th October, 2003 and now she is pregnant. According to Mst. Kanizan Bibi, Muhammad Iqbal appellant had committed Zina with her one and half months prior to 7th of November, 2003. If her statement is taken as correct in that eventuality Muhammad Iqbal appellant had committed Zina with her some time in the end of September, 2003 while her pregnancy which has been made basis for the conviction of the appellant is admittedly after 26th of October 2003 when she had the last menses. Further argued that on the same set of evidence the co-accused of the appellant namely Mst. Kanizan Bibi has been acquitted while appellant alone has been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which is illegal. On the other hand learned D.P.G. for the State has argued that the appellant stand convicted on the basis of the prosecution evidence and the deeper appreciation of the evidence is not practice while deciding the application under section 426, Cr.P.C. In view thereof this application merits dismissed. Heard. Record perused. I am afraid that on the same set of evidence the conviction of appellant while acquittal of co-accused Mst. Kanizan Bibi seems to be contradictory. The appellant has already served sentence of almost two years. In view thereof, I hereby allow the application. The appellant shall be released on bail subject' to his furnishing bail bond in the sum of Rs.1,00,000 (one lac) with two sureties in the like amount to the satisfaction of the trial Court/Sessions Judge, Sahiwal. H.B.T./4/FSC Application allowed.