RAJA SAEED AKRAM KHAN, J.---This appeal has been directed against the judgment passed by the Shariat Appellate Bench of the High Court (to be referred as the High Court, hereinafter), on 11.6.2018, whereby the decision of the District Court of Criminal Jurisdiction Sudhenuti, dated 28.10.2017, through which the appellant along with the co-convict was convicted to 10 years' imprisonment in.the offences tinder sections 337, A.P.C. and 12 of the Of fence of Zina (Enforcement of Hudood) Act, 1985, has been maintained.
2. The relevant facts of the case in hand are that on the written report of the comp lainant, Nadeem Tahir, a case in the offence under section 337(A), A.P.C., read with section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985, was registered at Police Station Baloch on 15.05.2013. In the FIR, the allegation levelled against the convict- appellant, herein and another , namely , Azkar Hussain Shah, was that; on 1.5.05.2013, the complainant along with the accused persons was in the way back to his home after attending the annual anniversary ({{URDU TEXT}}) of the saint of Dowan Sharif and when they reached Panakh Panyali at about 4:45 am, the accused persons beat him and forcibly committed sodomy with him. On the completion of the investigation, the challan in the offences under sections 377, 506(2), A.P.C. and section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985, was presented in the District Criminal Court, Pallandari. The trial Court after necessary proceedings, awarded 10 years' imprisonment each under section 377, A.P.C. and 10 years imprisonment each under section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985, whereas, they were acquitted of the charge in the offence under section 506(2), A.P.C. Feeling aggrieved from the judgment of the trial Court, the convicts filed an appeal before the High Court. The learned High Court after hearing the parties upheld he conviction recorded by the trial Court through the impugned judgment dated 1 1.06.2018, hence, this appeal.
3. Ch. Shaukat Aziz, advocate, counsel for the convict-appellant submitted that the judgment passed by the trial Court, through which conviction was recorded against the convict-appellant and the co-convict, was maintained by the High Court, however , on appeal to this Court, the co-convict has been acquitted. The learned counsel added that during the course of trial, after seeking exemption from personal appearance, the appellant joined Pakistan Army and could not get the fate of the case, as no intimation whatsoever was given to him. Even in the appeal before the High Court, no order against him was passed for procuring his attendance. The learned counsel added that the appellant came to know about the judgment of this apex Court, when the office informed him that his verification form had been returned to the unit. He got the knowledge that the appeal filed by the co-convict has been accepted and the sentence passed by the Courts below has been set aside, while giving the benefit of doubt and that the co-convict has been acquitted. The learned counsel added that the appellant is also entitled to the same treatment given to the co-convict, as the role of the appellant and the co-convict was the same and on the same set of evidence, the other convict was acquitted while disbelieving the prosecution evidence by this Court.
The learned counsel added that in the cases reported as Shabbir Ahmed v. The State [2011 SCMR 1142] and lmtiaz alias Taj v. The State and others [2018 SCMR 344], the principle of law has been enunciated by the apex Court of Pakistan that the benefit of acquittal of a convict could be extended to the non-appealing co-convict.
4. On the other hand, Mr. Asghar Ali Malik, Advocate, counsel for the complainant, while opposing the argument of the counsel for the convict-appellant, submitted that the convict-appellant is not entitled to the benefit of judgment of this Court as each case has its own peculiar facts and circumstances and in criminal matters, hardly one judgment is relevant to the other . The learned counsel submitted that by not filing the appeal against the judgment of the trial Court as well as the High Court, the convict-appellant has waived his right of appeal, which cannot be extended to him at this stage. The learned counsel submitted that the appellant was convicted and sentenced vide judgment dated 28.10.2017. The order has not been challenged by him at any forum and has attained finality . The learned counsel submitted that the name of the convict-appellant was deleted in the presence of the counsel for the appellant.
5. In reply to this argument, Ch. Shauka t Aziz, Advocate, submitted that in some interim order inadvertently the name of appellant was deleted, which has no ef fect over the case of the appellant.
6. During the course of arguments, a query was made to Mr. Asghar Ali Malik, Advocate, counsel for the complainant, that whether the role of the convict-appellant was at par with that of the co-convict. The learned counsel af firmed the position.
7. The learned Assistant Advocate-General adopted the arguments of the counsel for the complainant and requested for dismissal of the appeal.
8. We have heard the learned counsel for the parties, the learned Assistant Advocate-General and perused the record along with the material available on the record as well as the judgment of this Court recorded in the case titled Azkar Hussain Shah v . The State and another (Criminal Appeal No.16(A) of 2018, decided on 1 1.6.2018).
9. The convict-appellant, herein, and one Azkar Hussain Shah were convicte d and sentenced to 10 years' imprisonment each under section 377, A.P.C. and 10 years' imprisonment each under section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985, by the trial Court. They challenged the judgment before the High Court.
During pendency of the appeal, the learned counsel for the complainant raised an objection before the High Court that the sentence has been announced in the absence of Nisar Ahmed, therefore, the appeal to his extent was not competent. Vide order dated 4.12.2017, the appeal was dismissed to the extent of Nisar Ahmed, as not pressed and vide judgment dated 11.6.2018, the appeal filed by the other convict namely Azkar Hussain Shah was dismissed. The said convict challenged the order of dismissal of the appeal before this Court, by filing an appeal, which was accepted vide judgment dated 27.11.2018 and he was acquitted of the charge while extending him the benefit of doubt. The relevant observation of this Court is reproduced as under:- "After examining the record, we are of the view that the prosecution failed to prove its case beyond reasonable doubt, therefore, the trial Court was not justified to award the sentence of 10/10 years' imprisonment under sections 377, APC and 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985 and the learned High Court wrongly concurred with the same. Thus, in such scenario, we accept this appeal and set aside the judgments of the Courts below and the convict is acquitted of the charge while extending him the benefit of doubt."
The convict-appellant seeks acquittal on the strength of the judgment of this Court, referred to hereinabove, through which the appeal filed by the co-convict was accepted while setting aside the conviction recorded by the trial Court and upheld by the High Court, on the strength of the principle of law laid down by the apex Court of Pakistan that the benefit of acquittal of a convict could be extended to the non-a ppealing co-convict. After going through the judgment and the contents of the FIR, it appears that the allegations against the appellant are the same and the set of evidence against the convict-appellant is also the same. On the appeal filed by the co-convict, while disbelieving the prosecution evidence and while extending the benefit of doubt, the co-convict was acquitted.
It is also not denied that during course of trial, the appellant was granted exemp tion from personal appearance.
The stance taken by the appellant that after joining Pakistan Army , he could not get intimation about the fate of trial/appeal, is supported from the record. Moreover , nothing is spelt out from the record that after granting the exemption from personal appearance any measure was adopted to procure his attendance or in case of non- appearance, he was declared proclaimed of fender .
10(sic). The burning argument of the counsel for the appellant that mere non-filing of appeal due to the circumstances beyond his control the , appellant cannot be deprived of the benefit as extended to the other co- convict, appears to be convincing in nature. Moreover , this argument is also supported by the principle of law enunciated by the apex Court of Pakistan in the cases referred to by the counse l for the appellant. In the case reported as Shabbir Ahmed v . The State [2011 SCMR 1 142], it has been laid down as under:-- "7. For the reasons stated hereinabove, this petition is converted into appeal and allowed. The conviction and sentence of the petitioner is set aside and he is acquitted of the charge and shall be released forthwith, if not required in any other crime. As far as role of co-accused Bismillah, who has not filed the petition before this court, but has challenged his conviction and sentence before the Federal Shariat Court is similar to the case of the present petition, therefore, benefit of doub t is also given to him. He shall also be released forthwith, if in jail and not required in any other crime."
The same view has been reiterated by the learned apex Court of Pakistan while relying upon the above-referred report, in another case reported as Imtiaz alias T aj v. The State and others [2018 SCMR 344 ].
Thus, the circumstances of the case in hand warrant to extend the convict-appellant the same benefit which was extended to the co-convict keeping in view the above-referred principle of law laid down by the learned apex Court of Pakistan.
The result of the above discussion is that while accepting the appeal, the appellant is acquitted while giving the same benefit on the strength of the case- law referred to hereinabove. The conviction passed by the trial Court and maintained by the High Court is hereby set aside. As the appellant is already on bail, therefore, the bail bond furnished by him is hereby discharged.