MANZOOR Versus THE STATE

Manzoor and Kalu appellants through separate appeals have challenged their conviction. They were convicted under section 354, P.P.C. and sentenced to undergo R.I. for a period of one year each by learned Additional Sessions Judge. Vehari vide his order dated 12‑5‑1986. As both the appeals arise out of the same judgment so I shall dispose of these two appeals by this single judgment.

2. Brief facts of the prosecution case are that Mst. Parveen alongwith her mother Mst. Aisha and Nazar son of Hasan were returning to their houses on a cart after visiting the tomb of Sakhi Muhammad Yar situated within the area of Chak No.176/G.B. All of a sudden Kalu appellant armed with pistol, Manzoor appellant armed with Sota and Khadim acquitted co‑accused armed with Sota, who were sitting in ambush near the bridge of Sukh Bias Drain, came out. Khadim ‑accused of the appellant caught hold of companion of Mst. Parveen, Nanr P.W. Kalu appellant threatened Nazar P.W. and asked him to come down from the cart. Then both Manzoor and Kalu forced Mst. Parveen to accompany them. On her refusal she was dragged towards the fields and her shirt was torn by the accused. Her mother Mst. Aisha raised hue and cry. On hearing the alarm Anwar and Billu P.Ws. were attracted. They also saw the occurrence. On arrival of Anwar and Billu P.Ws. the accused ran away. Mst. Parveen approached the police alongwith her mother on 13‑6‑1985. Sefat Hussain S.I. met them near Adda Bhikki More. Fard Bian Exh.PA. on the statement of Mst. Parveen was recorded by him and he sent the same to Police Station Saddar, Vehari for registration of the case under section 354, P.P.C.

F.I.R. Exh.PA./1 was recorded by Muhammad Safdar H.C. on the basis of Fard Bian Exh.PA.

3. During investigation the offence under section 354, P.P.C. was deleted and offence under section 10/18, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 was added. Consequently the challan was sent to the Court of learned Sessions Judge, Vehari. The trial was conducted in the Court of Ch. Abdul Sattar, Additional Sessions Judge, Vehari who framed the charge under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. After recording the evidence of prosecution, vide impugned order and judgment dated 12‑5‑1986, he held that no offence under sections 11, 10/18, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 was made out. The trial Court was of the opinion that section 354, P.P.C. was proved against Manzoor and Kalu accused. Khadim Hussain was acquitted by giving him benefit of doubt. Manzoor and Kalu were convicted under section 354, P.P.C. and sentenced to R.I. for a period of one year each. Hence this appeal.

4. At the start of the arguments the learned counsel were asked if this Court has jurisdiction to hear the present appeals. The learned counsel for the State submitted that in view of section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, this Court has no jurisdiction to hear these appeals. Learned counsel for the appellant submitted that as the appellants have been convicted under section 354, P.P.C., so the appeals shall lie to the High Court because the offence for which the appellants have been convicted is triable by a Magistrate 1st Class.

5. I have heard the learned counsel appearing on behalf of the appellants and the State and have gone through the record with care. Section 20 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 provides "that the offence punishable under this Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the Code and the appeal from the order of the Court of Session shall lie to the Federal Shariat Court". A bare perusal of this section makes it crystal clear that if the trial is held in the Court of Sessions Judge for an offence falling in the ambit of A this Act, the appeal shall lie to the Federal Shariat Court. In this case the trial was conducted by a learned Additional Sessions Judge, Vehari, who vide impugned order and judgment held that no offence under section 10/11/18/ VII of 1979 was made out. Consequently he did not convict the appellant for these offences. Rather he drew the conclusion that offence under section 354, P.P.C. was made out from the evidence produced by the prosecution. I do not agree with the learned counsel for the appellants that as the offence for which 8 the appellants were convicted, constitute the offence under Pakistan Penal Code, the appellate jurisdiction will automatically revert back to the High Court. The offence with which the appellants are convicted is not important. The determining factor for the appellate jurisdiction would be the forum of trial. The trial was held by a Sessions Judge acting as a Qazi and a Sessions Judge will hold a trial for the offence which falls under Ordinance VII of 1979 is fully competent to punish the accused section 20 of Act VII also provides that "if it appears in evidence that the offender has committed a different offence under any other law, he may if the Court is competent to try that offence and award punishment, therefore, be convicted and punished for that offence". I will not deal with the question, whether offence under section 354, P.P.C. was triable by a Sessions Judge or not because it will prejudice the case of the either side.

6. As discussed above, I have least doubt in my mind that the appeal against the impugned order and judgment would lie to the Federal Shariat Court which is also a special creature of the Constitution of Islamic Republic C of Pakistan, 1973. It is noteworthy that revisional jurisdiction in such like cases has also been conferred upon the Federal Shariat Court as provided under Article 203‑DD of the Constitution.

7. Learned counsel further requested that I should take lenient view and pass an order convicting the appellants for a period already undergone. I am afraid I cannot pass such order. This Court has no jurisdiction to hear the appeals against an order passed by a Sessions Judge or Additional Sessions Judge while deciding a case under the Hudood Ordinance. Once this Court came to the conclusion that it has no jurisdiction to hear the present appeals, no further order touching the merits or quantum of punishment can be considered by this Court. For all these reasons the Criminal Appeals Nos.104 p of 1986 and 102 of 1986 are ordered to be returned to the appellants or their counsel to present the same before the competent Court, if so desired.

7. Both the appeals are disposed of in the above terms.

8. The appellants are on bail. The bail orders are withdrawn. Non?-bailable warrants of arrest of Manzoor and Kalu appellants are directed to be issued against them to be executed through the learned Sessions Judge, Vehari, immediately. He shall inform the Deputy Registrar (Judicial) of this Court about the execution of warrants within a period of one month of the receipt of warrants by him.

N.H.Q./M‑2661/L ?????????????????????????????????????????????????????????????????????????????? Appeals returned.