1999 PLP 466 (MLD)

DR. FIDA MUHAMMAD KHAN, J.

This revision petition is directed against the judgment dated 14-2-1996 passed by the learned Sessions Judge/Zila Qazi, Swat, whereby he has convicted the respondent Shanullah son of Batal under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, and sentenced him to imprisonment already undergone by him in prison and' whipping numbering thirty stripes.

2. Briefly stated it is the case of prosecution, per F.I.R. recorded on 30-8-1995 on 1650 hours on the statement of Mst. Aqil Meena wife of Sher Zamin, is to the effect that, on the same day, she had gone to fetch water from a fountain where Shanullah residence of Bahadur Banda came and forcibly took her to a nearby maize field where he subjected her to Zina-bil-Jabr and threatened to kill her by the kalashnikov he was having with him, in case she made any noise. She kept quiet due to fear. Afterwards she raised hue and cry which attracted her husband Sher Zamin and his brother Aam Gul whom she informed of the incident. Shanullah had, however, run away before their arrival. She charged him for subjecting her to Zina-bil-Jabr. The case was registered and the respondent/accused Shanullah was arrested and subsequently charged under section 6 of the said Ordinance. Statements of seven prosecution witnesses as well -as that of the respondent/accused were recorded. After conclusion of the trial the learned trial Court, however, found him guilty only under section 18 of the said Ordinance and convicted and sentenced him accordingly, as mentioned hereinabove. The Petitioner Aqil Meena through this revision petition has made a prayer that the respondent/accused tray be convicted for the offence of Zina -bil-Jabr under the said Ordinance and the sentences may be appropriately enhanced.

3. We have heard the learned counsel for the parties and have perused the record with their assistance. Learned counsel for the petitioner did not press his prayer in respect of conviction of the respondent/accused under section 10(3) of the said Ordinance, however, he prayed for enhancement of the sentence of imprisonment under section 18 of the said Ordinance. He submitted that the learned trial Court had not observed sound judicial principles while awarding the sentence of imprisonment already undergone by the respondent/accused. He also submitted that the learned trial Court had not judiciously used the discretion as there existed no mitigating circumstances for award of lesser sentence to the respondent/accused. Learned counsel for the respondent/accused, however, contended that the respondent/accused had already undergone the sentence in accordance with the legal provisions and that was sufficient to meet the ends of justice. He informed that the sentence of whipping numbering thirty stripes has already been executed and the respondent/accused is out of jail. Learned counsel for the State adopted the arguments of learned counsel for the petitioner. However, he informed that the State had filed no appeal for enhancement of sentences.

4. We have thoroughly examined the record in the light of submissions made by learned counsel for the parties. The learned counsel for the petitioner does not press conviction of the appellant under section 10(3) of the said Ordinance, as according to him the evidence brought on record is not sufficient for the same. So far as conviction of the respondent/accused under section 18 of the said Ordinance is concerned the learned trial Court has given plausible reasons and we also agree with the same. Regarding the sentence under the said section we may point out that the said section provides alternative punishment,' of imprisonment or whipping or fine or two or all of them. It will be advantageous to reproduce the said section as hereinunder:- "

18. Punishment for attempting to commit an offence. Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with whipping not exceeding thirty stripes, or with such fine as is provided for the offence, or with any two of, or all, the punishments. " It is crystal clear from bare reading of the above provision of law that it is the discretion of the Court to award any punishment to the accused according to the circumstances of each case. In the instant case, the learned trial Court while awarding the sentence of whipping has awarded the maximum punishment i.e., thirty stripes and has also sentenced the respondent/accused to already undergone. The discretion to award sentences lies with the learned trial Court and unless gross miscarriage of justice, according to law, is observed, the Appellate Courts usually refrain from any interference. In circumstances of this case, we are of the view that the learned trial Court has awarded appropriate sentences and hence, we are not inclined to make any interference in the same. This revision petition found without substance, therefore, fails and is dismissed accordingly. H.B.T./1184/FSC Revision dismissed.