' FAISAL ARAB, J.--- In this criminal appeal, the appellant Muhammad Tarique has challenged the judgment, dated 7-10-2004, passed by 1st Additional Sessions Judge, Mirpurkhas in Sessions Case No,216 of 1998, whereby the appellant was convicted and sentenced to suffer rigorous imprisonment for seven years and was also fined Rs,10,000 and in default thereof he was to undergo a further two months' imprisonment.
2. The appellant was one of three accused in Crime No,157 of 1998, registered with Police Station Digri, under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but trial Court acquitted the other two co-accused and convicted the present appellant. While awarding punishment, the trial Court held that appellant could not be punished under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, for want of Tazkiya- AlShahood as required under clause (b) of section 7 of the said Ordinance, but the Court nevertheless held that as the appellant is involved in car snatching and causing injuries to the complainant Karim Bux, the offence falls under section 394, P.P.C. Hence the appellant was punished under section 394, of the Pakistan Penal Code and sentenced for seven years' rigorous imprisonment and fined Rs,10,000.
3. Learned counsel for appellant at the very outset submitted that the appellant has already undergone more than five and half years of imprisonment and keeping in view the facts of case he was entitled for acquittal but nevertheless, he prays only for reduction in sentence by one and half years as it was excessive.
4. Learned State Counsel on the other hand, has argued that the appellant has wrongly invoked the jurisdiction of this Court for the reason that charge against the appellant was framed under Hudood Ordinance and, therefore, the forum for appeal is the Federal Shariat Court and not the High Court. In support of this contention, learned State Counsel has relied upon the cases of Fayyaz Ahmed v. The State PLD 2003 Kar. 441 and Ghulam Muhammad v. The State 2000 PCr.LJ 1155.
5. With regard to the legal objection raised by learned State Counsel that this Court has no jurisdiction, learned counsel for the appellant had argued that though the charge was framed under Hudood Ordinance, but the trial Court has not punished the appellant under any section of the Hudood Ordinance, as the trial Court came to the conclusion that the offence which the appellant has committed falls under section 394, Pakistan Penal Code. Therefore, the learned counsel for the appellant submitted that the appeal lies before this Court and not the Federal Shariat Court. In support of his contention learned counsel for the appellant has relied upon the case of Attaullah v. Abdur Razzak PLD 2002 SC 534.
6. In my view when the trial Court tries a case that is punishable under two different laws, then the forum for appeal is to be determined by the law under which the trial Court convicts the accused.
In other words where an offence is not made out under the special law but is made out under general law, irrespective of the law under which charge was framed, then the forum of appeal against such conviction would be the forum provided under the general law and not the special law under which the accused was originally charged.
7. In the Supreme Court case also (Attaullah v. Abdul Razzak) on which learned counsel for the appellant has relied the ratio is the same. In the said case the accused was initially charged under the Hudood Ordinance, but he was sentenced under the provisions of Pakistan Penal Code. The accused appealed to High Court which too maintained the conviction. The accused then filed appeal before the Supreme Court. The Honourable Supreme Court held that appeal would lie to the Federal Shariat Court only when conviction and sentence has been awarded under the Hudood Ordinance. In view of this decision of the Honourable Supreme Court, I am of the view that the appeal in the present case has been rightly preferred before this Court, as the appellant, though charged under the offence committed under Hudood Ordinance, was punished not under any provision of Hudood Ordinance, but under the provisions of Pakistan Penal Code. The case-law relied upon by the learned State Counsel is, therefore, not applicable to the facts of the present case. The second proviso to section 24 of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 also provides that appeal to the Federal Shariat Court would lie only in cases where the punishment has been awarded under the provisions of the said Ordinance. The second proviso to Section 24 reads as follows:--- "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 authorised 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 other provision of this Ordinance which impose a sentence of imprisonment for a term exceeding two years, shall lie to the Federal Shariat Court."
From a bare reading of the proviso it becomes evident that the appeal to the Federal Shariat Court lies only when, an accused is punished for an offence falling under section 9 or section 17 of the said Ordinance. In the present case the trial Court has held that the offence is punishable under section 394 of Pakistan Penal Code, therefore, appeal was rightly filed before this Court.
8. Now I will revert to the submission of the learned counsel for the appellant that the sentence was excessive and be reduced by one and half years. I have carefully gone through the judgment of the trial Court. F.I.R. Was lodged within 3-1/2 hours of the incident, yet the police reached at the site and arrested the appellant. The place of arrest was hardly 10-12 acres away i.e. Less than half a kilometer away, yet the appellant remained there as a sitting duck to be arrested after more than 3-1/2 hours. It has also come on record that the owner of the car in the past had also registered a similar case of car snatching against some other persons, which turned out to be false and the accused persons of that case were acquitted. Repeating the same story again also creates doubt with regard to the genuineness of the allegation, however as the learned counsel for the appellant has only sought reduction in the punishment to which State Counsel does not oppose, I am of the view that it is a fit case for reducing the sentence of the appellant. After taking into account remissions, only six months of imprisonments is now left to be served. Therefore, while maintaining the conviction, the sentence is reduced by six months i.e. From seven years to six years and six months. This appeal is allowed to the extent stated above.