' Briefly stated the facts are that the petitioners were challaned in case F.I.R. No.69, dated 7-6-1994 under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 registered at Police Station Tranda Muhammad Pannah District Rahimyarkhan. Both the petitioners were tried and convicted by the learned Additional Sessions Judge, Liaqatpur District Rahimyarkhan vide judgment dated 12-10-1999. They were sentenced to undergo R.I. For 5 years each plus to suffer 30 stripes each under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979. The petitioners challenged the said order of conviction in the Federal Shariat Court. Vide judgment Dated 13-12-1999 the appeal was dismissed with modification in the sentence awarded to them. The petitioners are now undergoing the sentence awarded to them in New Central Jail, Bahawalpur. They applied for remission granted to them through the Presidential Order but their request was declined by the Superintendent, New Central Jail, Bahawalpur. Hence the instant writ petition.
2. Comments of respondent were called which have been submitted and placed on record. It is asserted by the respondent that as the petitioners are accused of gang rape so they are not entitled to the remission granted by the aforementioned Presidential Order.
3. Arguments have been heard and record perused.
4. Stands of the learned counsel for the petitioner is that they have been involved in this case on the basis of F.I.R. No.69, dated 7-6-1994, they were convicted by the learned Additional District Judge, Liaqatpur vide judgment dated 12-10-1999 and their appeal has finally been disposed of vide judgment dated 13-12-1999, that offence of gang rapewas introduced vide amendment dated 21-4-1997 whereby subsection (4) was added to section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, that the occurrence in the instant case having arisen before the introduction of said amendment, they cannot be deprived of the benefit of remission simply on the ground that they have been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, that even if it is assumed that judgment dated 12-10-1999, has been passed after the introduction of the provision of section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, the same is not applicable as neither they were charged under section 10(4) ibid nor tried nor finally convicted by the Court of first instance as well as the Appellate Court. He thus submits that they are entitled to the remission granted through the Presidential Order.
5. Learned counsel appearing for the State has subscribed to the views of the learned counsel appearing for the petitioners.
6. There is no doubt that the petitioners were challaned under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, on the basis of F.I.R. No.69, dated 7-6-1994 when offence under section 10(4) was not in existence. It is also a fact that addition of subsection (4) to section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 was introduced on 21-4-1997. It is also a fact that even after the introduction of the said amendment the petitioners were not charged under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 nor they were finally convicted by the learned trial Court vide judgment dated 12-10-1999.
Even the Appellate Court has not varied or modified the conviction of the petitioners from section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, to section 10(4) ibid. This clearly shows that the petitioners were never tried and convicted under section 10(4) ibid. This being the factual position, the objection of the respondent for not extending benefit of remission is without any force. The accused/petitioners as such are entitled to remission granted to them through the Presidential Orders issued from time to time.Or the reasons given above, it is held that the petitioners are entitled to the remission granted by the Government from time to time. The respondent is directed to extend the said benefit to them.
7. With this observation this petition stands disposed of.