ALLAH DITTA Versus STATE

1. NASIM HASAN SHAH, J.‑‑ Allah Ditta, the appellant herein was convicted on 4‑3‑1986 by the Additional Sessions Judge, Pakpattan (Sahiwal) under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to seven years' R.I. with 20 stripes and also a fine of Rs.2.000 or in default of payment of fine to undergo six months' further R.I.

2. He appealed to the Federal Shariat Court but the same was dismissed. Hence this appeal, by leave of this Court.

3. It has been found that the appellant did commit "Zina" with Mst. Manzooran. He has accordingly been convicted under Section 10(3) of the Ordinance. While granting leave to appeal this Court too found that there is no infirmity in the finding of guilt recorded against the appellant as regards the commission of Zina. However, it has been noted that a compromise between the parties has been arrived at and that the complainant party had forgiven the appellant and some compensation has also been paid. The question has, therefore, arisen whether in these circumstances the appellant was not entitled to concession in the matter of sentence on the basis of the rule laid down by this Court in the case of Muhammad Bashir v. The State (P L D 1982 S C 139)?

4. Learned counsel have been heard.

5. We note that the judgment in Muhammad Bashir's case (P L D 1982 SC 139) is not directly relevant here. But we note further that the punishment awarded to the appellant is by way of Tazir a/s 10(3) of the Ordinance and he has not been held liable to Hadd. Section 10(3) of Ordinance reads:

6. "Whoever commits Zina‑bil‑jabr liable to Tazir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty‑five years and, if the punishment be one of imprisonment shall also be awarded the punishment of whipping numbering thirty stripes."

7. Thus, the matter of punishment under subsection (3) of Section 10 is left to the discretion of the Court and an appropriate punishment, taking into account all the relevant facts within the limits prescribed under subsection (3) can be imposed by it.

8. Mst. Manzooran appeared before us today and submitted that she had forgiven the appellant for his misconduct and that it was in the interest of all concerned that the sentence awarded to him may be reduced, if it cannot be remitted altogether.

9. In view of the foregoing we think that the Court can, and B should in the circumstances of the case, reduce the sentence to the minimum prescribed in the law. Accordingly we would reduce the sentence of the appellant to four years set aside the sentence of fine but maintain the punishment with regard to infliction of stripes.

10. In the result, the appeal partly succeeds and is allowed to the above extent.

11. M. I. /A‑255/S Order accordingly.