' This order shall dispose of Criminal Appeals Nos.101, 103 and 94 of 2000 which arise out of one and the same judgment delivered by learned 1st Additional District and Sessions Judge, Karachi whereby he convicted the appellants Asif, Shabbir Hussain, Zafran and Muhammad Shahid for an offence under section 395, P.P.C. And sentenced each of them to rigorous imprisonment for 5 years and fine of Rs,5,000. In default of payment of fine they were ordered to undergo R.I. For 6 months more. Appellant, Muhammad Shahid was further convicted and sentenced to imprisonment for 4 years for an offence punishable under section 324, P.P.C. And to rigorous imprisonment for 6 months for the offence punishable under section 353, P.P.C.
2. The case of prosecution, briefly stated, is that on 26-7-1998 at about 17-45 hours complainant Shahid Khan was present in his house when five dacoits armed with TT pistol barged into his house and confined all the inmates in one room. In the meantime, some neighbours informed the police on telephone, in response whereof S.H.O. Police Station Gulbahar rushed to the place of occurrence.
On seeing the police party the dacoits started firing and the police also returned fire. Ultimately, police succeeded in apprehending Asif, Shabbir Hussain and Zafran. During the encounter one of the culprits namely, Rahimullah died on the spot, while 5th one namely, Shahid managed to escape taking some cash and gold ornaments with him. Police secured one pistol, 3 live bullets, a wrist watch and cash of Rs 516 from Asif, a TT pistol, 3 rounds and a wrist watch from Sabir Hussain and one pistol, 4 rounds and gold ring from appellant Zafran. A pistol, three live bullets loaded in the magazine and one wrist watch were recovered from the person of deceased culprit Rahimullah. Appellant Shahid was apprehended during the investigation. On completing investigation challan was submitted in the Court.
3. At the trial, appellant pleaded not guilty to the charge. The prosecution examined their witnesses namely, P.W.1 Shahid Khan, P.W.2 Sahibullah, P.W.3 Rashid, P.W.4 Rahim Shah, P.W.5 Alamgir, P.W.6 Raees, P.W.7 Saeed Zada, P.W.8 A. Rais, P.W.9 Muhammad Yousuf and P. W.10 Din Muhammad.
Statements of the appellants were recorded, they denied the case of prosecution, but did not examine themselves on oath nor did they lead evidence in defence.
4. I have perused the evidence on record and heard the learned counsel for appellants and learned State Counsel.
5. At the outset it is relevant to mention that learned counsel for the appellants pointed out that the appellants are no more, in custody as they have, been released from jail on serving out their sentences. A report was called for from jail. The Superintendent Central Prison, Karachi informed through two letters .That appellant Asif was released on 6-10-2000, Sabir on 19-12-2000, Zafran on 20-10-2000 and Shahid on 11-9-2001. It is also pertinent to mention that learned counsel were called upon at one stage, to satisfy the Court about maintainability of appeal before this Court but since the appeals had already been admitted by another Bench the matter was posted for regular hearing. Since much before hearing of the appeals the appellants had already been released, learned counsel for the appellants chose to address the Court only on the legal point concerning jurisdiction of this Court.
6. The offence committed during this incident was result of a dacoity committed by 5 culprits who entered the house of complainant and confined the inmates of the house in a room and on this point sufficient evidence was led by prosecution at the trial. While passing the judgment the trial Court framed the point for determination with respect to the acts of dacoity in following terms:-- (;1) Whether on 26-3-1996 at about 17-45 hours the above named accused alongwith deceased accused Rahimullah committed dacoity in the house of complainant bearing No,112, Orangi Nala Jahangirabad, Gulbahar and during encounter between police and accused party accused Rahimullah died at the spot?
(2) Whether on the above date, time and place the accused above named alongwith deceased accused took away forcibly cash Rs,2,60,000, Gold ornaments, 9 wrist watches?
(3) What offence if any the above named accused have committed?
7. On assessm ent of the evidence on record the learned trial Court answered both the points in the affirmative and in conclusion thereof recorded the following observations:-- ' Point No,3 ' In view of my findings on the points Nos.l and 2, I have come to the conclusion that the prosecution has established its case against the present accused beyond the shadow of any reasonable doubt. I, therefore, hold that the accused are guilty of commission of dacoity. No doubt accused were challaned under section 17(3), Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, but in the present case Hadd shall not be imposed upon the accused as in this case two male Muslim, adult, witnesses other than the victim are missing, therefore, accused will be convicted under Ta'zir viz. Under section 395, P.P.C., I, therefore, convict the accused under section 395, P. P. C......
8. In consequence of the above, finding the learned trial Court convicted the accused for offence under section 395, P.P.C. And passed sentence of rigorous imprisonment for 5 years as already stated. It follows that the trial Court was conscious of the fact that in conclusion of his findings he found the accused persons guilty of an offence punishable as Haraba liable to Ta'zir within the meaning of section 20 of the Offences Against Property (E.O.H.) Ordinance, 1979. The learned trial Court has in clear words stated that as Ta'zir the punishment is to be awarded under section 395, P.P.C. In such an eventuality the provisions of section 24 of the aforesaid Ordinance are attracted and the appeal should lie to Federal Shariat Court.
9. A similar point was examined by this Court in the case of Ghulam Muhammad v. State 2000 PCr.LJ 1155 (judgment authored by me) and the relevant case-law Falaksher v. State 1996 PCr.LJ 804 and Pirak v. State 1997 PCr.LJ 1900 was examined and it was held that the High Court was not competent to hear the appeal. There can be no other reasonable view in the instant case too, since the main offence falls within the purview of section 20 of the Offences Against Property (E.O.H.)
Ordinance, as may be gathered from the impugned judgment The sentence awarded was R.I. For 5 years, the case would, therefore, fall within the appellate jurisdiction of Federal Shariat Court and the appeal before this Court is not competent.
10. Mr. Mahmood A. Qureshi, learned amicus curiae relied on Sakhi Dost Jan v. Pakistan Narcotics Control Board 1998 SCM R 1798, Allah Ditto v. Ishtiaque Ahmed Soomro 1999 PCr.LJ 1996, Sardarullah v. State 1998 PCr.LJ 2001 and Khursheed v. State 1990 PCr.LJ 409 wherein the revisional jurisdiction of High Court has been dilated upon vis-a-vis jurisdiction of Federal .Shariat Court conferred by Article 203DD of the Constitution. The Honourable Supreme Court has interpreted the term case decided in Sakhi Dost Jan's case (supra) in following words:--- "It is well-settled that the term, 'case decided' can be construed as a decision given in respect of any state of facts after judicially considering the same, which need not necessarily dispose of the whole matter in a cause pending before a Court subordinate to the High Court. Reference may be made to Umar Dad Khan v. Tila Muhammad Khan PLD 1970 SC 288, wherein this Court approved the statement of law in Bibi Gurdevi v. Muhammad Bakhsh AIR 1943 Lah. 65,
11. He also relied on Rasool Bakhsh v. State 1998 PCr.LJ 438 on the point that appeal from judgment made without jurisdiction would lie in same manner as would an 'appeal lie against judgment made with jurisdiction. He further submitted that the Federal Shariat Court has not been conferred power akin to that which have been conferred on a High Court, under section 561-A, Cr.P.C. The High Court would, as such, possess jurisdiction to entertain a petition under section 561-A, Cr.P.C.
12. Keeping in mind the principles laid down in the above cited authorities it may be observed that this is not a case of exercise of revisional jurisdiction nor of powers under inherent jurisdiction within the meaning of section 561-A, Cr.P.C. Presently, three appeals are in hand which arise out of a judgment whereby the appellants have been convicted fer an offence under section 395, P.P.C. As Ta'zir and awarded punishment of rigorous imprisonment for 5 years. Certainly, the appeal A would lie to Federal Shariat Court particularly when it has been observed by the trial Court that it could not convict the appellants for the offence of Haraba liable to Hadd, therefore, he was imposing punishment as Ta'zir. Ostensibly, this was done within the scope of section 20 of the Offences Against Property (E.O.H.), Ordinance, 1979 and on that score the appellate forum was the Federal Shariat Court as contemplated under section 24 of the aforesaid Ordinance.
13. As already pointed out the appellants have already served out their sentences and they were no more interested in pursuing the appeal. Consequently, the appeals are dismissed for want of jurisdiction. Nevertheless, if the appellants desire adjudication on merits they may approach the Federal Shariat Court. However, while parting with the judgment I would record my note of appreciation for Mr. Mahmood A. Qureshi, who was associated as amicus curiae on the request of the Court for his valuable assistance rendered in the matter.