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Criminal Revision No. 262 of 1983, decided on 25th January, 1984.
--S. 439--Penal Code (XLV of 1860), S. 377--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12--Revision--Unnatural offence- --Both accused convicted under S. 377, P.P.C.--Co-accused filing no appeal--On appeal filed by accused, appellate Court setting aside conviction and sentence and directing retrial of both accused under S. 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979--No notice however given by appellate Court to co-accused before passing order of retrial under S. 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979- Order of appellate Court set aside and Appellate Court ordered to rehear appeal of accused with notice to co-accused and pass a fresh order.
Muhammad Rafiq v. State P L D 1976 S C 555 ref.
Abdus Sattar Malik for Appellants.
Muhammad Akhtar, Asstt.A.-G. assisted by Nazar Muhammad for the State.
Date of hearing: 4th October, 1983 and 25th January, 1984
The petitioners were convicted under section 377, P.P.C. and sentenced to 3 years' R.I. each by Magistrate 1st Class, Bhakkar vide order, dated 6th April, 1981 in a case registered under section 377, P.P.C. at Police Station Bhakkar on 6th August, 1979. Petitioner No. 2 did not file any appeal against his conviction and sentence. Petitioner No. 1 filed an appeal against his conviction and sentence. Learned Additional Sessions Judge, Mianwali vide order dated 2nd June, 1982 set aside the conviction and sentence of the appellant and observed that although Nura, co-convict of the appellant had not filed appeal, his conviction and sentence is also set aside and he shall be informed of this order in the jail. Learned Additional Sessions Judge vide same order while setting aside the conviction and sentence, directed re-trial of the petitioners under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioners have challenged the impugned order insofar as it relates to the direction of the appellate Court for re-trial of the petitioners under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. The main stress of the argument of learned counsel for the petitioners is regarding the order passed about petitioner No. 2 who had not filed the appeal.
3. It is contended that although the powers of the appellate Court in considering the case of any co-convict who had not filed the appeal, during hearing of the appeal of the other convicts, cannot be questioned, but the fact cannot be lost sight of that no order. can be passed in the absence of anybody, which would cause him prejudice. It is submitted that the order passed by the appellate Court in this case qua petitioner No. 2 has definitely caused him prejudice as by virtue of the order he will now have to face trial for an offence in which he can be awarded the sentence of life imprisonment or death even. It has been argued that he should have been given opportunity to put up his point of view that the case did not fall under the provisions of section 12 of the 'Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
4. With regard to the case of petitioner No.1, it is submitted that since it has got to be a joint trial and the case has to be taken in its entirety, his case may also be considered alongwith the case of petitioner No.2, if his plea of re-hearing has to be accepted.
5. Learned Assistant Advocate-General has not controverted the arguments advanced by learned counsel for the petitioners. He has franky conceded that since the order was passed in the absence of petitioner No.2, and without notice to him, he has been prejudiced, as without any doubt, he will now have to face the consequences of a trial in which the extreme penalty of death can be awarded. Learned Assistant Advocate General has placed reliance on Muhammad Rafiq v. State P L D 1976 5 C 555.
6. Admittedly, petitioner No.2 had not filed an appeal, nor he has been given any notice by the appellate Court before the impugned order was passed. In the circumstances, I feel inclined to accept the revision petition. Order dated 2nd June, 1982 of Additional Sessions Judge, Mianwali is set aside. The appellate Court shall re-hear the appeal of petitioner No. 1 with notice to petitioner No. 2 and pass a fresh order.
7. I have not adverted to the arguments of learned counsel for the petitioners that even on merits the order of the appellate Court for remanding the case for trial under section 12 of Offence of Zina (Enforce ment of Hudood) Ordinance, 1979 is not maintainable, so as to avoid observation because the matter has to be re-considered by the appellate Court.
The impugned order in this case was passed by learned Additional Sessions Judge, Mianwali. Since after this order, Bhakkar has been separated from Mianwali, and is now a separate district with a separate Sessions division, the case shall be sent to learned Sessions Judge, Bhakkar who will hear the appeal himself.
M.Y.H. Petition accepted and case remanded.
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