GHULAM MUHAMMAD Versus STATE

Main controversy in this case is whether this appeal under section 410, Cr.P.C. is competent before this Court, or within the purview of section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, it should have been filed in the Federal Shariat Court.

2. The facts forming background of this case, precisely stated, are that an incident took place on 6-1-1994 within the jurisdiction of Makki Shah Police Station, Hyderabad which was registered as Crime No.5 of 1994 at the said police station and after usual investigation the case was challaned in the Court for an offence punishable under sections 393 and 454, P.P.C. read with section 17(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. After framing the charge and conducting trial the learned VIth Additional Sessions Judge, Hyderabad, convicted the appellant Ghulam Muhammad recording his finding in the following terms:--

"16. As regards the accused Ghulam Muhammad, it is stated that prosecution has fully established the case against him beyond any reasonable doubt. He has been charged with the offence under section 17(2), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but since there is no evidence of any other eye-witness bringing the case within the purview of Hudood Laws, a such the accused is liable to be convicted under Ta'zir under section 394, P.P.C., hence is convicted and sentenced to suffer R.I. for period of 4 years and also a fine of Rs.10,000 under section 394 P.P.C. In case of non-payment of fine, the accused shall undergo R.I. for one month more."

3. Learned counsel for the appellant contended that when the trial Court has expressly observed that there was no evidence of any kind to brig the case within the purview of Hudood Laws and in consequence of such observation the trial Court awarded punishment under Ta'zir that is to say under section 394, P.P.C., this Court was competent to hear the appeal as the case fell beyond the domain of Hudood Laws. Referring to the first proviso to section 24 of the Offences Against Property (E.H.O.), 1979, hereinafter to be cited as the "Ordinance" learned counsel submitted that the punishment has been awarded under "other law" within the meaning of this proviso, therefore, the appeal would lie to Sessions Court which has plenary jurisdiction to hear the appeals against the conviction for a period of four years, and in other cases to High Court. He relied on the cases Muhammad Saeed Azhar v. Martial Law Administrator, Punjab -1979 SCMR 484 in support of his content:

4. Learned Additional Advocate-General submitted that the law is well-settled that a person charged with an tried for an offence falling under "; the Ordnance and awarded sentence of imprisonment for more than two years can challenge his conviction and sentence in appeal only before the Federal Shariat Court as contemplated under second proviso to section 24 of the Ordinance. He relied on the cases Falak Sher v. The State 1996 PCr.LJ 804 and Pirak v. The State 1997 PCr.LJ 1900.

5. In order to appreciate the contentions it would be pertinent to reproduce the relevant provision of law which empowers the trial Court to pass the sentence of Ta'zir when the offence is found to be Haraba liable to Tazir.. The relevant provision viz. section 20 of the Ordinance reads as under:--

"20. 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 for 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, or extortion, as the case may be." -

6. Quite obviously, the learned trial Court had in its mind this provision of law, therefore, while finding the case not to fall within the purview of an offence liable to Hadd, he awarded punishment under section 394, P.P.C. as Ta'zir, albeit an-erroneous phraseology is used by the trial Curt observing that there was no evidence bringing the case within the purview of Hudood Laws. In any case these observations predominantly relegate to section 20 of the Ordinance which empowers the Court to award punishment as Ta' zir in cases where proof in either of the forms mentioned in section 7 is not available or for which punishment of amputation or death may not be imposed. The phrase, "bringing the case within the purview of Hudood Laws", has, indeed led to a confusion otherwise the sentence has squarely been awarded under section 20 of the Ordinance, therefore, in this context second proviso of section 24 of the Ordinance would be applicable which reads as under:--

"24. Application of Code of Criminal Procedure 1898 (Act V of 1898) .--- (1) The provisions of the Code of Criminal' Procedure; 1898 (Act V of 1898), shall apply, mutatis mutandis' in respect of cases under this Ordinance.

Provided 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 to punishment thereof, be convicted and punished for that offence.

'Provided further that the offence punishable under this Ordinance shall be triable by a Court of Sessions and not by a Magistrate authorised under section 30 of the said code and an appeal from an order under either of the said section or from an order under any other provision of this Ordinance which impose sentence of imprisonment for a term exceeding two years, shall lie to the Federal Shariat Court. "

7. On this point the learned Additional Advocate-General rightly placed reliance on the authorities referred to above. The relevant observations made in Falak Sher's case (supra) reproduced below:--

(7) This provision of law makes it clear that if the trial is conducted for an offence under Article 17, the appeal shall lie to the Federal Shariat Court, irrespective of the fact that ultimately the Court convicts the offender for another offence falling in P.P.C., because the same section 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 to award punishment therefore be convicted and punished for that offence.

(8) The other important factor is that had the challan not been submitted under section 17 of the Act VI, 1979, the trial would not have been conducted by a Court of Session. It has been held. in Muhammad Hussain v. Muhammad Ramzan and others PLD 1982 FSC 11 that the Federal Shariat has been given unfettered powers of appeal to examine any sort of case relating to appreciation of facts or law.

(9) In view of the above discussion the forum for the appellants to file an appeal was the Federal Shariat Court and not the High Court."

8. So also in the Division Bench decision of Balochistan High Court, 1997 Cr.LI 745, the view taken was that where a case is registered under the Ordinance irrespective of the fact whether the case ends in conviction or acquittal the appeal shall lie to the Federal Shariat Court except in those cases where conviction is less than two years.

9. A perusal of these authorities and the proposition of law laid down therein makes it quite clear that the conviction recorded for the offence registered under the Ordinance would be appealable to the Federal Shariat Court if the sentence exceeds two years within the meaning of aforesaid second proviso.

10. Learned counsel for the appellant, it seems, has made an erroneous approach to the proposition by relying on Muhammad Saeed Azhar's case 1979 SCMR 484 wherein it has, been observed that even after the promulgation of the' Ordinance the offence of theft is triable by the Courts established under the Criminal Procedure Code. In this authority the Honourable Supreme Court has held that the Ordinance has applied the Islamic punishment of Hadd, as ordained by the Holy Qur'an and Sunnah to certain kinds of theft, and in case the theft is found to be not liable to Hadd, etc., it shall be punished under the Pakistan Penal Code; and in particular it has been observed that the punishments provided in the Ordinance can be ,awarded by the existing Courts of competent jurisdiction provided the other requirement spelt out in the Ordinance as regards the nature of the offence and the standard of proof are fulfilled. Nothing can be deduced from the aforesaid observations as to hold that if a Court awarded punishment of Ta' zir instead of Hadd the case shall fall, beyond the ambit of section 24 of the Ordinance, or that being an ordinary Court the appeal against conviction recorded for such offence shall be governed by the provisions of Criminal Procedure Code alone irrespective of the provisions of section 24 of the Ordinance.

11. Indeed, in the instant case the trial Court has not deviated from the above principle which is also enjoined in the Ordinance itself that when an offence is not liable to Hadd punishment is to be awarded under Ta'zir. With the respects the principle laid down in this authority would not empower this Court to heard this appeal. Article 203-G of the Constitution is a barring provision 'conferring exclusive jurisdiction on the Federal Shariat Court in respect of all those matters wherein the proceedings fall within the power or jurisdiction of the Court.

12. For the foregoing reasons, I am convinced that this Court is not competent to hear and decide this appeal. Consequently, the memo. of appeal be returned to the learned counsel for the appellant for presenting the same before the Federal Shariat Court.

N. H: Q./G-12/K Appeal returned