1988 SCMR 1501

ZAFAR IQBAL Versus STATE

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Citation1988 SCMR 1501

CourtSupreme Court of Pakistan

Case No.Criminal Petition No.46‑R (S) of 1987

Date1987-08-18

Judge(s)Nasim Hasan Shah and Muhammad Taqi Usmani

Authored byNasim Hasan Shah

ResultOrder accordingly

ORDER

1. NASIM HASAN SHAH, J.‑‑ The petitioner alongwith Mst. Kalsoom Bibi were tried under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and both were found guilty of zina liable to Tazeer within the purview of section 10(2) of the offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to five years' R.I. and 15 stripes by order of the Additional Sessions Judge dated 23‑11‑1986.

2. On appeal before the Federal Shariat Court, Mst. Kalsoom Bibi was given benefit of doubt and acquitted of the charges against her. However, the appeal filed by the petitioner Zafar Iqbal was dismissed. However, his sentence was reduced from 5 to 4 years' R.1., but the sentence of whipping was enhanced to 30 stripes in order to bring it in conformity with the requirement of section 10(2) of the Ordinance. This petition for leave to appeal has, therefore, been filed before us by Zafar Iqbal, petitioner.

3. The main contention raised by Qazi Muhammad Saleem, learned counsel for the petitioner, is that there was no distinction in the case of Mst.Kalsoom Bibi and that of Zafar Iqbal and if Mst.Kalsoom Bibi was entitled to the benefit of doubt so also was the petitioner, Zafar Iqbal.

4. There is some force in the submission that no material distinction existed in the two cases but we do not agree that from this circumstance the inference that follows is that the petitioner too is entitled to the benefit of doubt. In our opinion, on the other hand, the acquittal of Mst. Kalsoom Bibi was not justified and that she appears to have been acquitted erroneously. Hence only because the co‑accusad has been wrongly acquitted, therefore; the petitioner should also be acquitted is not acceptable. No ground for interference, therefore, is wade out and this petition trust fail.

5. However, we consider that the petitioner is entitled to' the benefit of the provisions of section 382‑B. Cr.P.C. in the matter of computation of sentence. This petition accordingly will stand deceased in the above terms:

6. M.I. /Z‑33/S Order accordingly.