MAQBOOL AHMAD and another vs THE STATE

' SARDAR MUHAMMAD RAZA KHAN, J.--- Maqbool Ahmed and Riaz Ahmed, the convicts under section 10(4), Offence of Zina (Enforcement of Hudood) 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 F.I.R. No,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 accused 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 appellant is reduced to imprisonment for a term 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.