During the course of arguments it has transpired that Allah Dad alias Dadoo appellant alongwith Maqsood alias Soodi, who filed separate Criminal Appeal No. 383 of 2000 through and Abdul Aziz (who has reportedly died in jail) on conclusion of trial in case F.I.R. No. 13 of 1994 registered at Police Station Kehror Pacca, vide judgment dated 30.6.2000 passed by the learned Additional Sessions Judge, Lodhran (Camp at New Central Jail, Multan) were variously convicted under Sections 302(b) and 458, P.P.C. Allah Dad alias Dadi was sentenced to death while Maqsood alias Soodi was sentenced to life imprisonment under Section 302, P.P.C. with compensation of Rs. 50,000 each for committing Quil-i-Amd of Allah Yar deceased and also 10 years' R.I. with fine of Its. 5,000 each or in default of payment thereof to further undergo S. I. for 6 months under Section 458, P.P.C.
Alongwith the above offences they were also convicted under Section 11, Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 for abducting Mst. Azra and sentenced to life imprisonment with fine of Rs. 5,000 each or in default of payment thereof to further undergo S.I. for 6 months. Allah Dad alias Dadi appellant was also convicted under Se4ion 10(3), Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 for committing Zina-bil-Jabr with Mst. Azra and sentenced to 20 years' R.I.
2. We are of the view that when at the one trial the appellants have been convicted under the offences of Pakistan Penal Code and Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979, the appeals filed by the appellants before this Court are not maintainable as Section 20 of Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 provides that the provision of Cr.P.C. shall apply mutatis mutandis in respect of cases under the Ordinance and if it appears in evidence that the offender had committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefor, be convicted and punished for the offence, provided that an offence under this Ordinance shall be triable by a Court of Session and an appeal shall lie to the Federal Shariat Court.
3. The learned counsel for the appellants has conceded the above provisions, but he has tried to argue that since the main offence is Qatl-i-Amd of Allah Yar falling under Section 302, P.P.C. and death sentence has been passed thereunder, the appeals can be heard by this Court. We are afraid that this contention of the learned counsel for the appellants is against the dictum laid down by the Federal Shariat Court in Fazal Din u. Taj Din PLD 1983 FSC 33. In the said case the respondent- accused was alleged to have committed murder of the girl after committing rape with her and on conclusion of the trial he was acquitted by the learned trial Court. Appeal against acquittal was filed before the Federal. Shariat Court, which was accepted and the respondent-accused was sentenced to death under Section 302, P.P.C. and under Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 he was sentenced to 25 years' R.I. with whipping numbering 30 stripes. The question also arose about maintainability of the appeal, which was resolved in para. 31 of the judgment as under: "The offence under Section 302, P.P.C. is certainly an offence under a law other than the Ordinance but the Sessions Judge being competent to try both the offence with which the respondent is charged, he could pass a sentences in a case tried by him under the Ordinance for an offence under the P.P.C. also. What he could do can also be competently done by an appellate Court. Now proviso 2 of sub-section (1) of Section 20 provides that "an offence punishable under this Ordinance shall be triable by a Court of Session" and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court. Proviso 1 of the same sub-section permits the competent Court (Sessions Judge in the present case) to try the offence under any other law also and award punishment thereunder. By virtue of this provision the trial and conviction by the Sessions Judge of any offence inter alia under the P.P.C. becomes an offence punishable under this Ordinance for the purpose of appeal to the Federal Shariat Court. This can be the only reasonable interpretation of the two provisos of sub-section (20) of the Ordinance. Any other interpretation would lead to an unreasonable result that the order of conviction under two different statutes as a result of one trial may be appealable in two different forums. "
The above derision of the Federal Shariat Court was upheld by the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan in Taj Din v. The State 1984 SCM R 506. Reliance is also placed on Muhammad Abbas and another v. The State 1984 SCM R 129 wherein the convict besides offence under Section 18, Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 was also convicted under Section 302, P.P.C. and sentenced to death. The appeal of the convict and murder reference sent by the learned trial Court were held to be maintainable before the Federal Shariat Court. The relevant portion of the judgment of the Honourable Supreme Court is reproduced as under: "As the trial by Court of Session under the provision of the Ordinance was competent, the appeal would lie only before the Federal Shariat Court in view of the fourth proviso to Section 20(1) and a reference for confirmation of the death sentence, to that Court would be competent under sub- section (2) of the said section. The objection, too had been rightly rejected by the Federal Shariat Court."
4. In view of above. Criminal Appeals Nos. 384 and 383 of 2000 being not maintainable before this Court, original memo. of appeals alongwith Wakalat Nama and certified copies of impugned judgment, after placing .on record copies thereof duly attested by the Deputy Registrar of this Bench are directed to be returned to Mr. Muhammad Naeem Khan, Advocate the learned counsel for the appellants for its presentation before the competent forum. Murder Reference No. 516 of 2000 received from the learned trial Court for confirmation of death sentence of Allah Dad alias Dadi; appellant be returned to the said Court for its submission before the Federal Shariat Court as the appeals of the appellants under the law can only be heard by the said Court and any decision thereof by this Court may lead to conflicting of judgments.
5. In the above terms the criminal appeals and murder reference are disposed of .