MAQBOOL AHMAD & another vs STATE
This appeal concerns the conviction and sentencing of two appellants for zina-bil-jabr under Section 10(4) of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979. The appellants challenged their conviction on two grounds: the jurisdiction of the Anti-Terrorism Court to try the case and the legality of applying Section 10(4) of the Ordinance, which was introduced after the date of the offence. The Supreme Court held that while the Anti-Terrorism Court had jurisdiction to conduct the trial under the Anti-Terrorism Act 1997, the application of Section 10(4) of the Ordinance was unconstitutional. Because the offence occurred in June 1997 and the section was inserted in December 1997, applying it violated the protection against retrospective punishment guaranteed by Article 12 of the Constitution of Pakistan 1973. Consequently, the Court set aside the sentence of life imprisonment, reducing it to a term of 20 years with whipping, while maintaining the trial's validity under the Anti-Terrorism Act 1997, thereby upholding the principle that punishment must align with the law prevailing at the time of the offence.
- Can an Anti-Terrorism Court try an offence committed before the commencement of the Anti-Terrorism Act 1997?
- Does the application of a penal provision introduced after the commission of an offence violate Article 12 of the Constitution of Pakistan 1973?
- Is a sentence imposed under a provision enacted after the date of the offence legally sustainable?
- Section 10(3), Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979
- Section 10(4), Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979
- Article 12, Constitution of Pakistan 1973
- Anti-Terrorism Act 1997
- Section 38, Anti-Terrorism Act 1997
- Section 544-A, Code of Criminal Procedure 1898
Sardar Muhammad Raza Khan, J.--Maqbol Ahmed and Riaz Ahmed, the convicts under Section 10(4) Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979, sentenced to life imprisonment and a fine of Rs. 10,000/- each, etcetera, have filed this appeal where leave was granted on 27.1.2006 by this Court to consider the quantum of sentence alone.
2.Both were tried and convicted for committing zina-bil-jabr liable to tazir with Mst. Naseem Begum aged 16/17 with reference to FIR # 240 dated 5.6.1997 of Police Station City Pakpattan. The charge was framed under Section 10(4) of the Ordinance and the trial was conducted by Anti Terrorism Court No. II, Multan.
3.Learned counsel for the petitioners made two-fold submission. One that the trial could not be conducted by the Anti Terrorism Court constituted in August 1997 and second that the accused could not be charged and convicted under Section 10(4) of the Ordinance, for the section is introduced through amendment in December 1997.
4. In the instant case the offence has taken place on 5.6.1997 when, according to Section 10(3) of Ordinance VII of 1979 the punishment of the offence was imprisonment for a term which could extend to 25 years and whipping numbering thirty stripes. So far as Section 10(4) of the Ordinance is concerned, it was introduced in December 1997 and hence no punishment could be awarded under the said section, being in glaring violation of Article 12 of the Constitution.
5. The objection regarding the conduct of trial by Special Court under Anti Terrorism Act 1997, is unfounded. Any person adcused of having committed an offence before the commencement of Anti Terrorism Act of 1997 could be tried by the Court constituted under the Act but the punishment awarded shall be in accordance with law prevailing at the time when the offence was committed; provided the offence otherwise constituted a Terrorist Act. We are of the considered view that the trial by Anti Terrorism Court was in accordance with law, protected by Section 38 of the Anti Terrorist Act 1997. However, Section 38 of the Act read with Article 12 of the Constitution would certainly render the punishment awarded under Section 10(4) of the Ordinance void ab initio, with reference to the date of occurrence and the date of insertion of Section 10(4) in the Ordinance.
6.Consequently, while partially accepting the appeal, the imprisonment for life awarded to the appellants is reduced to imprisonment for a teim which shall extend to 20 years with the infliction of 30 stripes each and a compensation of Rs. 50,000/- each under Section 544-A Cr.P.C., to be paid to the victim.