2013 P Cr. L J 105
[Balochistan]
Before Muhammad Noor Meskanzai and Abdul Qadir Mengal, JJ
GHULAM MUHAMMAD ---Appellant
Versus
The STATE ---Respondent
Criminal Jail Appeal No.40 of 2010, decided on 3rd September, 2012.
Penal Code (XLV of 1860) ---
----S. 302(b) ---Offences Against Property (Enforcement of Hudood) Ordinance (VI of
1979), Ss. 7, 17, 20 & 24(2) ---Qatl-e-amd, Haraabah ---Jurisdiction of court, determination
of---F.I.R., in th e case was lodged under Offences Against Property (Enforcement of
Hudood) Ordinance, 1979, charge was also framed under the said provisions of the
Ordinance, but sentence had been awarded under the P.P.C. ---Legally, it was the 'charge' that
would determine the forum ---On account of non -availability of evidence satisfying the
standard of proof as required under S.7 of Offences Against Property (Enforcement of
Hudood) Ordinance, 1979, sentence was to be inflicted by mentioning a section of
P.P.C. within the meaning of S. 20 of Offences Against Property (Enforcement of
Hudood) Ordinance, 1979 ---Mere passing of sentence under 'Tazir', was not
determination of the forum ---Appeal was transferred to Federal Shariat Court, in
circumst ances.
PLD 2002 SC 534; 1997 PCr.LJ 1900 and 1984 SCMR 129 distinguished.
Abdul Karim Yousafzai for Appellant.
Abdul Karim Malghani for the State.
Date of hearing: 9th August, 2012.
ORDER
MUHAMMAD NOOR MESKANZAI, J. ---Instant jail appeal, calls in question
the legality, propriety and validity of the judgment dated 15th June, 2006 passed by the
Additional Sessions Judge/Juvenile Court, Pishin, whereby the appellant was found guilty
and sentenced as under: --
"Under section 302(b) , P.P.C. to suffer simple life imprisonment. Benefit of section
382-B, Cr.P.C. was also extended in his favour."
2. Facts in brief are that F.I.R. No.34 of 2003 was lodged under section 17(3) Offences
Against Property (Enforcement of Hudood) Ordinance, 1 979 with Levies Thana, Khanozai.
The investigation was carried out and challan was submitted under sections 17(3) of
Haraabah, 302, Q&D, 365 and 414, P.P.C. The trial Court framed the charge under section
17(4) of Haraabah, however, while finding a ccused/appellant guilty of the offence, he was
convicted and sentenced as mentioned hereinabove.
3. After passing of said judgment, appellant Ghulam Muhammad submitted the instant
jail appeal along with an application for condonation of delay of 41 month s, to this Court
through the Superintendent Central Jail, Mach. The appeal was admitted to regular hearing on
14th December, 2010.
4. During the pendency of appeal, on 7th August, 2012, the following order was passed
by this Court: --
"The learned P.G. pointed out that the instant appeal should have been preferred
before the Hon'ble Federal Shariat Court, as the F.I.R. has been lodged under section 17(4),
Harraba Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and the
charge has also b een framed under the said offence. Moreover, during the pendency of the
proceedings, a revision petition was filed before the Hon'ble Federal Shariat Court and
Hon'ble Federal Shariat Court remanded the matter to the learned Sessions Judge, for
disposal of application within the provisions of Juvenile Justice System Ordinance. Under
such circumstances, the appeal should be transmitted to the Hon'ble Federal Shariat Court.
In view of submissions made by the learned P.G., the learned counsel for the pauper
appellant to argue on the point.
Adjourned to 9 -8-2012 and office to issue notice to Mr. Abdul Karim Yousafzai,
learned counsel for the pauper appellant and also to send him copy of this order."
5. We have heard Mr. Abdul Karim Yousafzai, learned cou nsel for pauper appellant
whereas the State was represented by Mr. Muhammad Wasay Tareen, learned P.G.
Learned counsel for the pauper appellant argued that this Court has jurisdiction to
entertain the instant appeal as the sentence has been awarded unde r the provisions of Pakistan
Penal Code. In this regard he placed reliance on the following judgments: --
(i) PLD 2002 SC 534
(ii) 1997 PCr.LJ 900
(iii) 1984 SCMR 129
On the other hand, the learned P.G. contended that the instant appeal should have
been preferred before the Hon'ble Federal Shariat Court, as the F.I.R. has been lodged under
section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and the
charge has also been framed under the provisions of Hudood Ordinance. Mor eover during the
pendency of the proceedings, a revision petition was filed before the Hon'ble Federal Shariat
Court and Hon'ble Federal Shariat Court remanded the matter to the learned Sessions Judge
for disposal of application within the provisions of Ju venile Justice System Ordinance. Under
such circumstances, the appeal should be transmitted to the Hon'ble Federal Shariat Court.
6. We have considered the contentions so put forth by the learned counsel for the parties
and gone through the available rec ord with their able assistance. The perusal of record reveals
that F.I.R. was lodged under Hudood Ordinance and charge was also framed under the
provisions of Hudood Ordinance. It is also admitted that sentence has been awarded under the
P.P.C., but the qu estion remains that as to whether is it the sentence that determines the
forum, or, is it the charge that decide the forum? In our humble view, legally it is the 'charge'
that determines the forum. There is no cavil with the legal proposition that on accou nt of non -
availability of evidence satisfying the standard of proof as required under section 7 of the
Ordinance, always sentence is to be inflicted by mentioning a section of P.P.C. within the
meaning of section 20 of the Ordinance. The mere passing of t he sentence under 'Tazir' is not
determinative of the forum, The view can find support from bare reading of section 20 of
Ordinance, 1979, which is reproduced as under: --
"Punishment for haraabah liable to tazir. ---Whoever commits haraabah which is not
liable to the punishment provided for in section 17, or for which proof in either of the forms
mentioned in section 7 is not available, or far which punishment of amputation or death may
not be imposed or enforced under this Ordinance, shall be awarded the punishment provided
in the Pakistan Penal Code (Act XLV of 1860) for the offence of dacoity, robbery or
extortion, as the case may be."
7. Needless to observe that as per the provisions of subsection (2) of section 24 of the
Offences Against Property (E nforcement of Hudood) Ordinance, 1979 the sentence less than
two years has been made appealable before the High Court. For ready reference, subsection
(2) of section 24 of the Ordinance is reproduced: --
"2 [Provided further that an offence punishable un der section 9 or section 17 shall be
triable by a Court of Session and not by a Magistrate authorized under section 30 of the said
Code and an appeal from an order under either of the said sections 3 [or from an order under
any provision of this Ordinance which impose a sentence of imprisonment for a term
exceeding two years] shall lie to the Federal Shariat Court;"
Even the citation referred to by the learned counsel for pauper appellant does not
support the contention of learned counsel for appellant. For ready reference the dictum laid
down in the case titled as Muhammad Abbas and another v. The State reported in 1984
SCMR 129 relevant at page 133. Relevant observations therefrom are reproduced
hereinbelow: -
"Mr. Dilawar Mahmood, learned counsel for the petitioners, urged before us, as had
been done before Federal Shariat Court, that the challan having been submitted for offences
under the Pakistan Penal Code, the Court could not have charged the petitioners with an
offence under the Ordinance and th at in any case the petitioners could have been charged
under the first proviso to section 20(1) of the Ordinance with a different offence only after the
evidence led had shown that such different offence had been committed but not before. The
contention ha s no merit. The narration of the facts in the report submitted under section
173, Cr.P.C. disclosed an offence falling under section 18 of the Ordinance and,
therefore, even if the police officer had not mentioned that section in his report , the trial
Court was competent to frame a charge under section 18 of the Ordinance also. It is well -
established principle of law that the trial Court is not bound by the conclusions reached by the
Investigating Officer in his report submitted under sectio n 173, Cr.P.C. See Falak Sher v.
State (1). Upon the disclosure of an offence falling under the Ordinance, the Court of Session
acquired exclusive jurisdiction to try the same by virtue of the second proviso to section
20(1) of the Ordinance, which says "P rovided further that an offence punishable under the
Ordinance shall be triable by a Court of Session and not by a Magistrate authorized under
section 30 of the Code......." The Court of Session could along with an offence under the
Ordinance also try offe nces under and other law committee in the same transaction, in view
of section 235, Cr.P.C. and the first proviso to section 20(1) of the Ordinance. The Federal
Shariat Court had, rightly therefore, rejected the objection.
The next objection was in rega rd to he competency of the reference before the Federal
Shariat Court, as according to learned counsel the reference for confirmation of the death
sentence on a murder charge could lie only before the High Court. In this connection, he
pointed out that in fact an appeal (Criminal Appeal No.171 of 1983) had already been
preferred Ware the High Court and was still pending there. As the trial by the Court of
Session under the provision of the Ordinance was competent, the appeal would lie only
before the Federa l Shariat Court in view of the fourth proviso to section 20(1) and a reference
for confirmation of the death sentence to that Court would be competent under subsection (2)
of the said section. The objection, too, had been rightly rejected by the Fe deral Shariat
Court".
Reliance could also be placed on the judgment titled as the State v. Pirak reported in
1997 PCr.LJ 1900, relevant at page 1909, which is reproduced: --
"A bare perusal of the above reproduced dictum laid down in different cases w ould
revel(sic) that where a case is registered under the Offences Against Property (Enforcement
of Hudood) Ordinance VI of 1979 (hereinafter referred to as the 'Ordinance') irrespective of
the fact whether conviction is awarded or acquittal is made the ap peal shall lie to Federal
Shariat Court except in those cases where conviction is less than 2 years".
8. So in this case, the sentence passed as Tazir is one in the light of provisions of section
20 of the Ordinance. The unreported judgment of the Hon' ble Supreme Court titled as
Bashir Ullah v. The State dated 8th February, 2001, wherein C.P.L.A. No.238 of 2000 was
converted into appeal and granted. The dictum laid down therein has decided the controversy
forever. The relevant portion of the said ju dgment is reproduced as under: --
"We have heard both sides at length and perused the file as well as various judgments
cited at the bar. As far the facts of this case are concerned, there would be the determining
factor as far the question of jurisdicti on is concerned. In the instant case, complainant was
deprived of his Datson Pick -up and the driver was done to death in the same transaction,
therefore, police rightly applied section 17(4) ("Haraabah") of Offences Against Property
(Enforcement of Hudood) Ordinance, 1979. Learned trial Court framed the charge under
section 302/34, P.P.C. as well as under section 17(4) ("Haraabah") of Offences Against
Property (Enforcement of Hudood) Ordinance, 1979. At the conclusion of the trial benefit of
doubt was given to the accused for lack of absolute proof as far as offence of Haraabah was
concerned. But the offence of murder was established and they were accordingly convicted.
The proposition in the instant case would be, if the complainant wanted to impugn the
judgment by challenging acquittal of the accused for Haraabah offence, obviously, an appeal
against acquittal had to be filed before the Federal Shariat Court and in such circumstances
argument that appeal against conviction would be before the High Court, wo uld be most
illogical. Jurisdiction of Court has to be determined in such like cases at the time of framing
of charge, which was exclusively of Shariat Court as far the present case is concerned."
9. Similarly, a judgment of this Court, delivere d at the strength of the above dictum fully
covers the subject i.e. Murder Reference No.17 of 2009, (titled as The State v. Himat Ali),
wherein one of us (Justice Muhammad Noor Meskanzai) was a member of the Division
Bench and the author of the said judgme nt. The Murder Reference sent to this Court by
Additional Sessions Judge, Panjgur was directed to be transferred to Hon'ble Federal
Shariat Court. In the said judgment, it was held as under: --
"In view of the facts and circumstances of the case and in the light of above legal
position, the Murder Reference has erroneously been sent to this Court as this Court does not
have jurisdiction to entertain the same. Accordingly, the file of the aforesaid Murder
Reference along with original record he sen t to the Incharge, Federal Shariat Court Registry
to be placed before a Bench of Hon'ble Federal Shariat Court for consideration, after
retaining photocopy thereof for record purposes."
10. Further reliance is placed on the order dated 14th November, 200 8 passed in Criminal
Appeal No.13/Q of 2007 and Criminal Miscellaneous Application No.19/Q of 2007 by a
three Member Bench of Hon'ble Federal Shariat Court of Pakistan, which determined that the
correct appellate forum was the Federal Shariat Court and not the High Court.
The citations referred to by the learned counsel for pauper appellant render no help, as
the facts are distinguishable, as such inapplicable to the peculiar facts of this case.
In the light of above discussion, we are of th e opinion that the instant jail appeal
presented through Superintendent Central Jail, Mach before this Court is incompetent. The
Registrar of this Court to send the appeal, application for condonation of delay, paper -book
along with the record of the case, after retaining Photostat copies thereof to the Hon'ble
Federal Shariat Court.
Thus, in view of above stated legal proposition, this jail appeal stands transferred to
the Hon'ble Federal Shariat Court.
HBT/95/Q Appeal transferred.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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