MIAN BUX Versus State
MUHAMMAD SALEEM JESSAR, J.--- By this single judgment I intend to dispose of above-said three criminal appeals as the same relate to one and the same incident and have been filed against the same judgment passed by the trial Court.
2. By means of instant Criminal Appeals the appellants have assailed the Judgment dated 19.11.2016 passed by learned Additional Sessions Judge, Matiari in Sessions Case No. 352/2012, whereby they have been convicted for an offence punishable under section 302(b), P.P.C. and sentenced to suffer life imprisonment and to pay compensation of Rs.400,000/- each to legal heirs of deceased Punhal Malookani under section 544-A, Cr. P.C. and in case of non-payment thereof, to undergo imprisonment for a period of six months, while said amount of compensation shall be recoverable as arrears of land revenue. Appellants have also been convicted for an offences punishable under section 324, P.P.C. and sentenced to undergo R.I. for five years and to pay fine of Rs.10,000/- (Rupees Ten Thousand only) each and in case of default, the defaulting accused was ordered to suffer S.I. for 2 months more. The appellants have also been convicted for an offence under section 337-F(iii), P.P.C. for causing injuries to PW Majano and sentenced to payment Daman of Rs.50,000/- each to P.W. Majano. The appellants have further been convicted for an offence punishable under section 392, P.P.C. and sentenced to suffer R.I. for five years and to pay fine of Rs.10,000/- each and in case of non-payment of fine, the defaulting accused shall suffer S.I. for two months more. The accused/appellants have also been directed to pay Rs.30,000/- each to P.W. Jairam as compensation under section 544-A, Cr.P.C. for the robbed articles and in default whereof, to suffer further imprisonment for six months while said amount of compensation shall be recoverable as arrears of land revenue. All the sentences of imprisonment were ordered to run concurrently. However, the accused/appellants have been extended benefit of section 382-B, Cr. P.C.
3. The prosecution story in brief is that in the night of 26.03.2012 at 01:30 a.m. present accused/appellants along with absconding accused Ali Hyder, Ghulam Qadir, Nanger Khan and 3/4 unknown persons, duly armed with deadly weapons in furtherance of their common intention entered into the house of PW Jai Ram situated in village Sher Khan Malookani and robbed gold ornaments weighing 1-1/2 tola and cash Rs.10,000/-. The villagers chased the accused and at about 0200 a.m. they encircled the accused in wheat crops of village Sher Khan Malookani where encounter took place between the parties and as a result of firing of the accused, brother of complainant namely Punhal and co-accused Muhammad Yaqoob died while PW Majano received injuries, therefore instant case was registered against the accused.
4. After completing investigation, charge sheet was submitted against the accused before the Court of learned Civil Judge and J.M-I Hala on 10.04.2012, showing accused Muhammad Hassan and Asghar under custody while remaining accused as absconders out of whom appellant Mian Bux was subsequently arrested and supplementary challan against him was submitted in the Court. As the offence under section 302, P.P.C. was exclusively triable by the Court of Sessions, hence concerned Magistrate, after initiating proceedings against absconding accused under sections 87 and 88, Cr.P.C. sent up the case to the Court of Sessions Judge Hyderabad; however, after creation/establishment of Judicial District Matiari, the case was sent to the Court of Sessions Judge Matiari wherefrom it was transferred to the trial Court on 10.11.2012.
5. Initially on 11.8.2012 a formal charge was framed against two accused/ appellants namely Mohammad Hassan and Asghar, while appellant Mian Bux and other co-accused were declared proclaimed offenders. Thereafter, consequent upon arrest of appellant Mian Bux and submission of supplementary challan against him, as is evident from the case diary dated 24.12,2013 available at page 19 of the Paper Book, on 04.02.2014 an amended Charge Ex.07 available at page 60 of the Paper Book) under sections 302, 324, 34, P.P.C. read with Article 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was framed against all the three accused/appellants to which they pleaded not guilty and claimed to be tried vide their respective Pleas Exs.7/A to 7/C.
6. In order to prove the charge against the accused prosecution examined PW-1 complainant Kamal Khan at Ex-8, who produced FIR as Ex-8/A and receipt regarding receiving of dead body of deceased Punhal as Ex-8/B. PW-2 Darya Khan was examined at Ex-9, who produced his 164, Cr.P.C. statement as Ex-9/A, while PW-3 Mumtaz was examined at Ex-10, who produced his 164, Cr.P.C. statement as Ex-10/A. PW-4 Jai Ram was examined at Ex-11 and PW-5 Majano was examined at Ex-12, whereas PW-6 Ghulam Rasool was examined at Ex-14, who produced mashirnama of arrest and recovery as Ex-14/A, mashirnama of place of incident i.e. wheat crop and dead body as Ex-14/B, Danishtnama of deceased Punhal as Ex-14/C, Danishtnama of deceased accused Muhammad Yaqoob as Ex-14/D, mashirnama of injuries of PW Majano as Ex-14/E, mashirnama of place of incident i.e. house of PW Jai Ram as Ex-14/F, mashirnama of clothes of deceased Punhal and accused Muhammad Yaqoob as Ex-14/G and mashirnama of injuries of accused Muhammad Hassan and Asghar as Ex-14/H. PW-7 ASI Allah Jurio at Ex.15, who produced roznamcha entry No. 42 regarding departure from PS as Ex-15/A, letter issued to M.O. regarding medical examination of injured Majano as Ex-15/B, letter issued to M.O. regarding conducting postmortem of both the deceased i.e. Punhal and accused Muhammad Yaqoob as Ex-15/C and letter issued to Mukhtiarkar for preparation of sketch of wardat as Ex-15/D. PW-8 Dr. Ghulam Abbas was examined at Ex-16, who produced postmortem report of deceased Punhal and his Lash Chakas Form as Ex-16/A and 16/B, Lash Chakas Form of deceased accused Muhammad Yaqoob and his postmortem report as Ex.-16/C and 16/D, provisional and final medical certificates of injured Majano as Ex.16/E and 16/F respectively. PW-9 WPC Mehdi Hassan was examined at Ex-17 who produced letter issued by SIP Khadim Hussain to M.O. for medical treatment of accused Muhammad Hassan and Asghar as Ex-17/A and letter issued by SIP Khadim Hussain to M.O. regarding final medical certificate of injured Majano as Ex-17/B. PW-10 SIP Ishtiaq Ali was examined at Ex-18, who produced letters issued to AIG Forensic Division Sindh for chemical examination of clothes and opinion regarding weapons as Ex-18/A and 18/B, and reports of chemical examiner Karachi and Incharge FSL Hyderabad as Ex-18/C and 18/D respectively. Thereafter, learned DDPP closed prosecution side vide his Statement Ex-19.
7. Statements of accused were recorded under section 342, Cr.P.C. as Exs-20 to 22, in which they denied the allegations levelled against them and stated that prosecution witnesses are interested; however, neither they examined themselves on oath nor produced any witness in their defence.
8. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the appellant as stated above. However, while convicting the accused, the trial Court observed that the requirements of Tazkiyah-al-Shuhood (specified test of probity) has not been fulfilled because the alleged robbery was said to have been committed from the house of P.W. 4 namely, Jayram who is non-Muslim and other eye-witnesses were inmates of his house. They being non-Muslims, the provisions of Hudood Laws do not apply to the present case therefore, without alteration of the charge the trial Court convicted the appellants under Penal Laws. However, the trial Court observed that present case falls within the ambit of Article 20 of Hudood Ordinance, hence by converting section 17(3) of the Ordinance 1979 into section 392, P.P.C., convicted the appellants and sentenced them in terms of Penal Laws. Against the said judgment the appellants have preferred instant Criminal Jail Appeals.
9. I have heard learned counsel for appellants Asghar and Mohammad as well as learned A.P.G. appearing for the State, whereas none appeared on behalf of appellant Mian Bux. The material available on the record has also been scanned.
10. It may be observed that at the very outset, learned A.P.G. appearing for the State raised a legal objection regarding competency and jurisdiction of this Court to entertain and hear the instant appeals. Needless to point out the settled principles of law that in case legal objection regarding competency and jurisdiction of a Court is raised in a case or appeal, the same is to be decided in the first instance before touching the merits of the case, therefore I would like to deal with the said legal point in the first instance.
11. In fact, this legal point has already been dealt with in various cases by the Superior Courts. In this connection, I would like to make reference to the case of Ali Dino and another v. The State reported in 2017 PCr.LJ 578 wherein a Division Bench of this Court while dealing with the said point held as under:
"In order to decide the question of jurisdiction of this Court, we would like to refer to second proviso of section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, which reads as under:
"Provided further that an offence punishable under 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 (or from an order under any provision of this Ordinance which imposes a sentence of imprisonment for a term exceeding two years) shall lie to the Federal Shariat Court:"
This provision of law makes it clear that if the trial is conducted for an offence under sections 9 and 17 and sentence of imprisonment for a term exceeding two years is awarded, 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.
6. From the plain reading of Article 24 (ibid) it is clear that it is the accusation and the nature of the offence for which the accused was charged/tried which would form the basis for determination of the forum of appeal and not the result of the trial. Thus the appeal arising out of the cases of the offence cognizance whereof was taken and charge was framed in Hudood Law would lie only to Federal Shariat Court and not before High Court even though the conviction has been awarded under P.P.C. In this respect we are fortified by the case of Juman and another v. The State (PLD 2016 Sindh 191), Ghulam Muhammad v. The State (2013 PCr.LJ 105) in both the cases Division Bench of this Court as well as Baluchistan High Court in similar circumstances directed the Additional Registrar to send the appeals to Federal Shariat Court. We are also fortified by case of Shabir Ahmed v. The State (2011 SCMR 1142) wherein the FIR was registered under Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with 392/34, P.P.C. but on the conclusion of trial, learned trial Judge convicted the accused under section 392/34, P.P.C. The conviction and sentences were challenged before the Federal Shariat Court through separate appeals which were dismissed and the Honourable Supreme Court entertained the appeals and allowed the same."
12. In the case of Zafar Iqbal and others v. The State reported in 1984 SCMR 167, Honourable Supreme Court laid down following dictum:
"An appeal from a trial under the Ordinance lies under the second proviso to section 20 to the Federal Shariat Court. The Federal Shariat Court, therefore, competently heard the appeal and disposed it notwithstanding the fact that the petitioners had filed appeal in the High Court and not in the Federal Shariat Court."
13. Honourable Federal Shariat Court has also enunciated such principle in the case of Muhammad Akbar v The State reported in 2003 YLR 1339, while holding as under:
"After going through the Constitution, Hudood Laws and case-law, relied upon by the learned counsel in respect of the legal objection raised by the learned counsel for the appellant, we overruled the same and hold that, in circumstances of a case where charge is framed against an accused under any provision pertaining to Hudood Laws, with or without any other section of P.P.C., and the trial Court comes to the conclusion that charge under the Hudood Laws could not be maintained for want of evidence other persons, and proceeds to convict him for any other offence under the provisions of P.P. C. and acquit him from charge under Hudood Laws, the appeal against that judgment would lie to the Federal Shariat Court. This jurisdiction is conferred upon Federal Shariat Court by the Constitution as well as the relevant enactments in Hudood Laws that till hold the field and cannot be taken away by any judgment of any Court unless the relevant provisions referred to above are duly amended."
14. In another case of Karamat Khan and another v. The State reported in 2002 PCr.LJ 1868, Hon'ble Federal Shariat Court held as under:
"By now, it is well-settled that if a Court not possessed of jurisdiction to try a case, wrongly assumes jurisdiction and exercises power vested in it, appeal from its decision would lie in the same manner as an appeal would lie from a decision made with jurisdiction."
15. This Court in the case reported as Moula Bux Gello v. The State (2002 YLR 2956), observed as under:
"Since offences under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 is also triable by the Sessions Court like Article 8 of the Prohibition Order, hence the rule laid down at serial No. (ii) above, shall stand attracted on all fours. Thus an appeal against an order of conviction or acquittal relating to offence under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 can only be preferred before the Federal Shariat Court which Court has the exclusive jurisdiction in such matters"
16. In the instance case also FIR was registered, inter alia, for offences under Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, so also the charge was also framed against all the three appellants for the offences punishable under sections 302, 324, 34 read with section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Ex.07) which is available at page 60 of the Paper Book and the accused were tried for such offences and lastly the sentence of imprisonment for a term exceeding two years was awarded to the appellants by the trial Court which falls within the ambit of second proviso to section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which reads as under:
"Provided further that an offence punishable under Section 90 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 (or from an order under any provision of this Ordinance which imposes a sentence of imprisonment for a term exceeding two years) shall lie to the Federal Shariat Court."
17. In this connection, I would also respectfully dare to add that by virtue of Article 203-G of the Constitution of Islamic Republic of Pakistan, 1973 specific bar has been provided in respect of any matter falling within the power or jurisdiction of Federal Shariat Court against all the Courts including Honourable Supreme Court and High Court. It would be advantageous to reproduce hereunder Article 203G of the Constitution:
"203-G. Bar of Jurisdiction - - - Save as provided in Article 203- F, no Court or Tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court."
18. Needless to emphasize that the word "Court" mentioned in the aforesaid provision of the Constitution has been defined in clause (b) of Article 203B of the Constitution as, "the Federal Shariat Court constituted in pursuance of Article 203C"
19. Not only this, but even the decision given by the Federal Shariat Court has the binding effect on a High Court and on all courts subordinate to a High Court as promulgated in Article 203GG of the Constitution which reads as under:
"203-GG. Subject to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all courts subordinate to a High Court".
20. In view of above legal position, I have no hesitation in holding that the instant appeals filed before this Court are incompetent and without jurisdiction and the same would lie before Federal Shariat Court. Accordingly, all the appeals are directed to be transmitted to the Honourable Federal Shariat Court Islamabad, through its Registrar for disposal according to law. Office is directed to send entire Record and Proceedings including Paper Book of these appeals to the Honourable Federal Shariat Court Islamabad.
SA/M-165/Sindh Order accordingly.