MUSHTAQ AHMAD Versus THE STATE

Order

Aftab Hussain, C. J. ‑This is an appeal against the order of Mr. Muhammad Yousaf Khoso, Additional Sessions Judge, Quetta, by which he convicted both the appellants under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced them to Hadd punishment of whipping numbering 100 stripes each. This order was passed on a plea of guilty said to have been taken by both the appellants before tie learned Additional Sessions Judge.

2. Before the above order was recorded, both the appellants submitted petitions urging that their answer in the affirmative was given on account of misunderstanding and they did not want to make any confession. On the other hand, they would like that the case be retried and they may be defended through a counsel. This was clearly a retraction of the confessions made before the learned Additional Sessions Judge. He should, therefore, have' retried the appellants according to law after ignoring their confessions. His order passed despite this retraction is invalid in law.

3. A question arises in this case about the competence of appeal. Section 412, Cr. P. C. prohibits the filing of an appeal in a case where the conviction is based upon confession. It could follow that if making of the confession is not admitted, the appeal may he before the Court to determine the question whether the confession had been made by the appellants or not Section 9(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 197 provides that in a case in which the offence of Zina or Zina‑bil‑Jabr is proved only by the confession of the convict. Hadd, or such part of it as is g yet to be enforced, shall not be enforced if the convict retracts his confession before the Hadd or such part is enforced. Subsection (3) provides that r such case the Court may order retrial.

4: Obviously, in view of this 'provision such an appeal would b competent at the instance of a person who has been convicted and awarded Hadd sentence by the Court and at the time of appeal or before the filing of the appeal he retracts his confession. We, therefore, hold that section 412 is not a bar to the filing of an appeal on the ground of retraction o confession.

S. As a result of the above discussion we have no option but to set aside the order of conviction and sentence of the appellants and remand the case for retrial.

M. A. K. Case remanded.