SARDAR MUHAMMAD vs MUHAMMAD ISRAR and 3 others
This matter arises from a petition for leave to appeal filed by the complainant, Sardar Muhammad, seeking enhancement of sentences of the respondents who were convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the Additional Sessions Judge, Swabi, and sentenced to 12 years' rigorous imprisonment along with whipping and fine. On appeal, the Federal Shariat Court maintained the conviction but reduced the sentence of imprisonment to the term already undergone, alongside reducing the whipping and default fine periods. The core legal questions concern the locus standi of the petitioner to maintain the appeal without filing a prior revision, and whether reducing the substantive imprisonment to a mere 56 days was just and proper under the circumstances. The Supreme Court granted leave to appeal to examine these questions, noting the points requiring deeper consideration.
- Whether the petitioner has a locus standi for filing an appeal for enhancement of sentence while he did not file any revision in the Federal Shariat Court?
- Whether the reduction of sentence of imprisonment from 12 years rigorous imprisonment to a period already undergone was just and proper in the circumstances of the case?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 540, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
ORDER
1. ' MAULANA MUHAMMAD TAQI USMANI, J.---The learned Additional Sessions Judge, Swabi had convicted three respondents namely, Muhammad Israr, Ahmad Ali and Shamsul Qamar for having subjected the petitioner, Sardar to carnal intercourse. All the three respondents were sentenced under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to 12 years' R.I.
2. With whipping numbering 30 stripes and a fine of Rs,20,000 or two years R.I. In default. Half of the amount of fine, if realized, was ordered to be given to the appellant by way of compensation under section 540, Cr.P.C. However, the benefit under section 382-B, Cr.P.C. Was allowed to the respondents.
3. ' The respondents filed an appeal before the Federal Shariat Court where their learned counsel did not press the appeal against their conviction, but prayed for reduction in their sentences. The learned counsel for the State had no objection to the reduction of their sentence, therefore, the learned Federal Shariat Court, while maintaining their conviction, reduced their sentence and imprisonment from 12 years to a term already undergone by them, and the number of stripes was reduced from 30 to 10, and the period of imprisonment in case of default of payment of fine was reduced from two years to one year. Now the petitioner who was the complainant in this case seeks leave to appeal against the said judgment of the Federal Shariat Court for the enhancement of their sentences.
4. After hearing the learned counsel for the petitioner, we feel that the following two questions are worth consideration in this case:
(i) Whether the petitioner has a locus standi for filing this appeal while he did not file any revision in the Federal Shariat Court, especially in view of the judgment of this Court reported in PLD 1983 SC 233.
(ii) Whether the reduction of sentence of imprisonment from 12 years R.I. To a period already undergone was just and proper in the circumstances of the case, especially in view of the fact that they were convicted by the learned Additional Sessions Judge on 28-4-1993 (while they were earlier on bail) and the judgment of the Federal Shariat Court was delivered on 23-6-1993. It means that they did not undergo the punishment of imprisonment for more than 56 days.
5. ' Leave is, therefore, granted to examine these questions.