TARIQUE alias TAHIR alias TAHIRO and another vs THE STATE
This criminal revision petition challenges the conviction and sentencing of two petitioners charged under Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, read with Section 380 of the Pakistan Penal Code 1860. The trial court (Judicial Magistrate) sentenced the petitioners to three years of rigorous imprisonment, a sentence exceeding the Magistrate's jurisdictional limit of two years. Furthermore, the appellate court (Sessions Judge) erroneously entertained the appeal, despite the fact that sentences exceeding two years fall under the appellate jurisdiction of the Federal Shariat Court. The core legal question concerned the jurisdictional limits of the trial court to impose sentences under the Hudood Ordinance and the proper appellate forum for such cases. The Court held that the trial Magistrate lacked the jurisdiction to impose a sentence exceeding two years and that the Sessions Court lacked appellate jurisdiction in this instance. Consequently, the Court exercised its revisional powers to reduce the sentences to two years, aligning them with the Magistrate's jurisdictional capacity, while maintaining the fine and granting the benefit of Section 382-B, Code of Criminal Procedure 1898.
- Does a Judicial Magistrate have the jurisdiction to impose a sentence exceeding two years for an offence under the Offences Against Property (Enforcement of Hudood) Ordinance 1979?
- Which court has appellate jurisdiction when a sentence imposed under the Offences Against Property (Enforcement of Hudood) Ordinance 1979 exceeds two years?
- Can a High Court or Federal Shariat Court reduce a sentence in revision to bring it within the jurisdictional limits of the trial court?
- Section 14, Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 24, Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 380, Pakistan Penal Code 1860
- Section 30, Code of Criminal Procedure 1898
- Article 203-DD, Constitution of the Islamic Republic of Pakistan 1973
- Section 561-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
HAZIQUL KHAIRI, C.J.--- This jail criminal revision petition is on behalf of two petitioners namely, Tarique alias Tahir alias Tahiro and Jalal who were charged under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the said Ordinance") and both were convicted under section 380, P.P.C. By the Judicial Magistrate/F.C.M., Usta Muhammad to suffer R.I. For three years and each of them was directed to pay Rs,15,000 or in default thereof to further undergo imprisonment for six months' S.I. The petitioners preferred an appeal before the Court of Session, Usta Muhammad, which was dismissed and the learned Judge upheld the decision of the learned Judicial Magistrate.
2. Now it is urged on behalf of the petitioners that neither the learned Judicial Magistrate could have convicted the petitioners for more than two years nor the learned Sessions Judge could have upheld the decision of conviction of the said Judicial Magistrate when it was a conviction for more than two years in which an appeal lies to Federal Shariat Court. The petitioners were charged under section 14 of "the said Ordinance" whereunder "whoever commits theft liable to Tazir shall be awarded the punishment provided for the offence or theft under the Pakistan Penal Code (Act XLV of 1860). Now the said Ordinance by virtue of section 24 thereof provides "the provisions of the Code of Criminal Procedure shall apply mutatis mutandis in respect of case under the Ordinance".
3. Such being the case all matters falling under section 24 of "the said Ordinance" except sections 9 or 17 were to be tried by a Magistrate authorized under section 30, Cr.P.C. Accordingly the Judicial Magistrate purporting to exercise his powers under law proceeded with this case and charged the petitioners under section 14 of "the said Ordinance" which attracts the provision of section 380 of Pakistan Penal Code prescribing maximum punishment upto 7 years. What, however, the learned Judicial Magistrate lost sight of was that he had jurisdiction to award punishment only upto two years and not more. However, in this case the petitioners were convicted for three years, which was beyond his jurisdiction.
4. Similarly, there was a lapse on the part of the learned Sessions Judge to overlook mandatory provisions of section 14 of "the said Ordinance" read with section 380 of Pakistan Penal Code whereby the petitioners were sentenced to more than two years. Again the learned Sessions Judge had failed to see that where the award of sentence is more than two years the appeal would lie before the Federal Shariat Court and not to him.
5. Be that as it may, the learned counsel for the petitioners has not questioned the conviction of the petitioners but requested their sentence may be reduced to two years' R.I. To which learned counsel for the State Mr. M. Shoaib Abbasi also has no objection. The petitioners are young and not previous convicts and in such a situation it is in the interest of justice that the petitioners/convicts should not be allowed to suffer for the oversight of the trial Court and the Appellate Court. I, therefore, in exercise of my powers under Article 203-DD of the Constitution of the Islamic Republic of Pakistan read with section 561-A of the Code of Criminal Procedure Acts 1898 reduce the sentences of the petitioners from three years' R.I. Each to two years' R.I. Each. Both the petitioners, however, shall pay Rs,15,000 or in default thereof to further suffer six months' S. I. Both the petitioners would be entitled to the benefit of section 382-B, Cr.P.C.