SHABBIR AHMED vs THE STATET

' MUHAMMAD JEHANGIR ARSHAD, J.---This appeal is directed against the judgment, dated 22-12- 2010 handed down by the learned Sessions. Judge, Kalat Division at Mastung whereby the learned Sessions Judge while convicting the appellant under sections 392, 511/34, P.P.C. Imposed punishment of three years' R.I. On the appellant with fine of Rs,10,000 (Rupees ten thousand only) or in default thereof to further undergo three months' S.I. By further extending the benefit of 382-B, Cr.P.C. To the appellant.

2. The appellant filed appeal against the said judgment before the Hon'ble High Court of Balochistan, but the same was returned by the learned Single Judge of the said Court vide order dated 31-1-2011 holding that the appeal was competent before Fedetal Shariat Court.

3. At the very outset when questioned learned counsel for the appellant submits that the appeal was rightly filed before the Hon'ble High Court of Balochistan but as the same was returned by the learned Judge of the said Court, therefore, he had no option but to file present appeal before this Court.

4. Though the F.I.R. In the case was originally registered under section 17(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 yet as the record reveals District Attorney being the competent authority submitted the challan under section 392, P. P.0 only.

5. Record further reveals that on receipt of the challan the learned trial Court also framed charge under section 392 only on 29-6-2010. According to the judgment 'of the learned trial. Court challenged in this appeal the learned trial Court on the conclusion of the trial found the appellant guilty of Offences under sections 392, 511 read with section 34, P.P.C. And thus convicted him under the above-mentioned sections and imposed the above noted penalty on him.

6. The question in these circumstances arises, when the appellant was never charged by the trial Court under any provisions of Hudood Laws and even the District Attorney submitted tine challan under section 392, P.P.C. Only, there was even no remote reference to any provisions of Hudood Laws ether in the charge or in the judgment of the learned trial Court, the learned Judge of the Hon'ble High Court of Balochistan was right in holding that the appeal against the impugned judgment was not maintainable before the Hon'ble High Court of Balochistan, rather the same should have been tiled before this Court on account of merely registration of case under the Hudood Laws. The answer to the said question is very simple and there is no difficulty in holding that the appeal was rightly filed before the Hon'ble High Court of Balochistan and for that matter if any authority is required 2004 PCr.L.I 1246 Federal Shariat Court and PLD 2002 SC 534 can be referred to with advantage. As the appellant was neither charged with nor tried under any provision of the Hudood Laws nor the challan was submitted under the Hudood Laws, this Court is at a loss to understand as to how the appeal against conviction would lie before this Court.

Learned Hon'ble Judge would have been right if after charging he C appellant under any provision of Hudood Laws and if recording evidence the learned trial Court had come to the conclusion that proof in terms of section 7 or 17 of the Offences Against Property (Enforcement of Hudood)

Ordinance, 1979 was not available or punishment under the said Ordinance could not he imposed or enforced and would have awarded the punishment to the appellant provided in the P.P.C. For the offences of dacoity, robbery and extortion as the case may be in terms of section 20 of the said Ordinance the appeal against the said punishment would lie to this Court, but as the learned trial Court neither took cognizance of the matter under any provisions of Hudood Laws nor charged the appellant or tried him under any provisions of Hudood laws, therefore the appellant rightly filed the appeal before the Hon'ble Balochistan High Court and the view taken by the learned single Judge of the Hon'ble Balochistan High Court in this respect, with due deference to the learned Single Judge of the Hon'ble High Court of Balochistan cannot he considered as a correct and a lawful view, while holding so this Court is also supported by the above referred authorities one by Division Bench of this Court and other by apex Court, both binding on the Hon'ble High Court of Balochistan in terms of Articles 189 and 203-GG of the Constitution of Islamic Republic of Pakistan respectively.

Accordingly, this appeal is held incompetent before this Court and office is directed to transfer the entire record of the appeal to the Hon'ble High Court of Balochistan for decision. Copies of the record be retained by the office: