SAMDUZZAMAN SIDDIQUI, J.-The two common questions of law which arise in these three appeals were framed on 9-7-1980 in Hudood CriminalAppeal No. 15 of 1980 by a Bench of this Court consisting of the learned Chief Justice and our brother Nasir Asiam Zahid, J. The questions are as follows :-
(1) Whether in spite of appeal not ]laving been admitted, can it be considered to be a pending appeal ?
(2) Whether the appeals which are pending have to be heard 'by the High Court and not by the Federal Shariat Court ?
2. We have heard Mr. Usman Ghani Rashid, Mr. A. Q. Halepota and Mr. Rasool Bux the learned Counsel for the appellants in these appeals. Besides, we also heard the Assistant Advocate- General Mr. Sarfaraz for the State in these cases and Mr. Mumtaz Hussain, Advocate who voluntarily assisted u8 on questions of law in these cases,
3. Before proceeding to consider the arguments of the learned counsel who addressed us in these cases we consider it necessary to state here in short some of the relevant facts of these appeals besides mentioning briefly the legislative background as it will come up for consideration while dealing with the points raised before us.
4. Appeal No. 15 of 1980 was filed in this Court on 3rd June, 1980, Appeal No. 11 of 1980 was filed.'on 24th April, 2980, while Appeal No. 10 of 1980 was filed on 25-3-1980. Whereas the last mentioned two appeals have already been admitted for regular hearing on 294-1980 and 21-5-1980 respectively.
Appeal No. 15 of 1980 has not yet been admitted. Appellants in Appeals No. 13/1980 and 10/1980 have been convicted under section 9 of Offences Against Property (Enforcement of Hudood)
Ordinance of 1979 (which will hereinafter be referred as "Ordinance VI of 1979") and the sentences awarded to them are such in their nature that they cannot be executed unless confirmed by this Court under section 9(5) of the Ordinance VI of 1979 and as such these two cases have also been registered as Hudood Confirmation Cases Nos. 1 and 2 respectively. Appellants in Appeal No. 11 of 1980 have been convicted under section 11 of Offence of Zine (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be referred as Ordinance No. VII of 1979) but the sentences awarded to appellants do not require any confirmation by this Court. Having stated briefly the relevant acts of the above appeals, we now advert to the legislative background. The two Ordinances VI and VII of 1979 under which the appellants in these cases have been convicted, were promulgated by the President of Pakistan on 10-2-1979, and they came into effect immediately. Simultaneously amendments were also made in the Code of Criminal Procedure by Ordinance No. X of 1979 which too came into effect from 10-2-1979. By amendments in the Code of Criminal Procedure cases arising under Ordinances VI and VII of 1979 were made triable by the Courts of Session and Magistrates depending upon the severity of sentences. Section 9 of Ordinance VI of %979 provides that punishment awarded under subsection (1) and sub--section (2) shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, and until such time the punishment is so confirmed and executed, the convict is to be dealt with in the same manner as if sentenced to simple imprisonment. There is no specific provision for filing an appeal from conviction under Ordinance VI of 1978. However by section 24 of Ordinance VI of 1979 the provisions of the Code of Criminal Procedure are made applicable to the proceedings under the Ordinance and as such this Court entertained appeals under the provisions of the Criminal Procedure Code against sentences and convictions awarded under Ordinance VI of 1979. By virtue of subsection (2) of section 24 of Ordinance VI of 1979, the provisions of the Code of Criminal Procedure relating to the confirmation of the sentences of death have been made to apply mutails mutandis to the confirmation of sentences under Ordinance VI of 1979. Similarly under Ordinance No. VII of 1979 there is no specific provision for filing appeal against the convictions made under provisions of Ordinance VII of 1979, but by virtue of section 20 of the Ordinance the provisions of Criminal Procedure were made applicable and this Court accordingly entertained appeals from the sentences awarded under this . Ordinance. Ordinance VII of 1979 has in the like manner made sentences awarded under subsection (3) of section 6 of the Ordinance executable subject to confirm--ation by the Appeal and until then the convict is to be treated as sentenced to simple imprisonment. We may mention here that two days before. The promulgation of Ordinances VI and VII of 1979 on 8-2-1979 the President of Pakistan by President's Order No. 3 of 1979 which is known as the Constitution (Amendment) Order of 1979 introduced in the Constitution in Part VII a new Chapter 3-A which provides for constitution of Shariat Benches consisting of three Muslim Judges in each of the High Courts of the Provinces of the Federation. The newly added Chapter 3-A in the Constitution also conferred powers on the Shariat Benches of the High Court to decide the question whether any law or provision of law is repugnant to the Injunctions of Holy Qur'an and Sunnah of Prophet. On 26th May, 1980, by a Presidential Order of 1980, known as the Constitution (Amendment) Order, 1980 the newly introduced Chapter 3-A of the Constitution was substituted by a new Chapter 3-A in part VII of the Constitution. The newly substituted Chapter 3-A provided for constitution of a Federal Shariat Court in place of the existing 4 Shariat Benches of the Provincial High Courts. Similar powers as were enjoyed by the Shariat Benches of the High Courts were conferred on the Federal Shariat Court under Article 203-D of the newly added Chapter 3-A of the Constitution. The decision of the Federal Shariat Court was made further appealable before a Bench of the Supreme Court consisting of three Muslim Judges of the Supreme Court to be known as Shariat Appellate Bench. On 21-6-1980 while the present appeals were pending adjudication in this Court, Article 203-DD was added after Article 203-D in the Constitution under Chapter 3-A.
Under this newly added Article 203-DD, the Federal Shariat Court was invested with powers to bear such other cases in respect of which jurisdiction is conferred on the Court by or under any law. The newly added Article 203-DD in Chapter 3-A of the Constitution is in the following terms :- "203-DD. The further jurisdiction of the Court. The Court shall have such other jurisdiction as may be conferred on it by or under any law."
On the same day when Article 203-DD was added in Chapter 3-A of the Constitution, two Ordinances, namely, Ordipance No. XIX known as Offences against Property (Enforcement of Hudood) (Amendment) Ordinance of 1980 and Ordinance No. XX known as Offence of Zina (Enforcement of Hudood) (Amendment) Ordinance, 1980 were promul--gated by the President of Pakistan. By section 3 of Ordinance XIX of 1980 the existing section 24 of Ordinance VI of 1979 was amended and after the first proviso to section 24 the following further provisos were added "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 of the Court of Session shall lie to the Federal Shariat Court Provided further that a trial by a Court of Session under this Ordinance shall ordinarily be held at the headquarters of the Tehail in which the offence is alleged to have been committed."
Similarly by section 2 of Ordinance XX of -1980, Section 20 of Ordinance VII of 1979 was amended and after the 1st Proviso in sub--section (1) of section 20 the following further provisos were added :- "Provided further that an offence punishable under this Ordinance 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 of the Court of Session shall lie to the Federal Shariat Court Provided further that a trial by a Court of Session under this Ordinance shall ordinarily be held at the headquarters of the Tehsil in which the offence is alleged to have been committed."
We may at the very outset state here that all the above-mentioned learned counsel .Who appeared in these appeals took up the position that appeals arising or which may hereafter arise,, from the sentences and convictions which have been passed or which may hereafter be passed in cases which were pending immediately on the coming into force of Ordinances XIX and XX of 1980, will lie to this Court. This argument of the learned counsel is based on the ground that right of appeal is a vested right which accrues to a person on the commence--ment of the trial and this right cannot be taken away by legislation unless there are clear words in statute suggesting that such right has been taken away expressly or by necessary intendment. The point as argued by the learned counsel need not be decided in these appeals as it does not directly arise in these proceedings nor is it covered in the two questions framed in these cases for decision. We will therefore confine ourselves to the consideration of the effect of Ordinances XIX and XX of 1980 on the present appeals. It is a settled rule of inter--pretation that no person can claim any vested right in a particularforum and therefore it has been consistently held by Courts of Law that a change of forum cannot be described as affecting any vested right of a party. Therefore in our view by providing an appeal to the Federal Shariat Court from convictions and sentences under Ordinances VI and VII of 1974 in place of appeal which previously lay to this Court. The right of appeal available to a party to such proceeding has not been affected. However, in order to determine the effect of Ordinance XIX and XX of 1980 on the present appeals filed in this Court before 21-6-1980 different consideration will arise. In the two Ordinances. Namely. Ordinances XIX and XX of 1980 no provision has been made while amending sections 24 and 20 of the Ordinances VI and VII of 1979 respectively. With regard to the pending appeals in this Court and as such in the absence of any such indication in the amending Ordinances the presumption will arise that the Legislature while creating a new forum for appeal in respect of cases arising out of convictions under Ordinances VI and VII of 1979, did not intend to bring about any change with regard to pending cases. The absence of the provision in the amending Ordinances for transfer of pending appeals from existing forum to the newly created forum for decision is also a circumstance in favour of this presumption. It may further be pointed out that by Ordinance XIX of 1980 the change of forum for filing of an appeal to the Federal Shariat Court is provided for only in respect of the cases in which convictions and sentences are awarded under sections 9 and '17 of the Ordinance VI, while in respect of punishment awarded under other provisions of the Ordinance the appeal as before could be filed even now. However, in so far Ordinance VII of 1979 is concerned the position is slightly different as all convictions made under this Ordinance are now appealable to Federal Shariat Court. The convictions and sentences in all the above three appeals as stated earlier, were admittedly, passed much before 21st June, 1983, when the two amending Ordinances were promulgated. Similarly, the appeals in all these cafes were also instituted in this Court much before 21-6-1980. The question which therefore arises is : whetber in these circumstances these appeals should be heard by this Court or by the Federal Shariat Court. 1n our view, in the absence of any contrary intention appearing in the two amending g Ordinances XIX and XX of 1980, the appeals which were already filed in this Court when the two Ordinances came into effect will be heard and determined in accordance with the law prevailing at the time these appeals were filed. Our view is further strengthened by a conspicuous absence in the two amending Ordinances of any provision dealing with the appeals already filed or pending in this Court on the date of coming into force of the above two Ordinances XIX and XX of 1980. The fact that Appeal No. 15 of 1980 was not admitted for regular hearing by this Court before 21-6-1980, is of little significance in the present context as in our view what was important was that the right of appeal accrued to the appellants on their conviction by the trial Court was exercised by them before coming into force of the amending Ordinance by filing an appeal to this Court in accordance with the law then prevailing. The added consideration will be that upon filing of this appeal it was also registered as Hudood Confirmation Case No. 3 of 1980 which admittedly took place before 21-6-1980 and therefore this Court was fully siezed of this matter as a confirmation case and the absence of an order admitting Appeal No. 15/80 to regular hearing was quite insignificant in these circumstances. We therefore do not feel it necessary to answer the first question as even without deciding it we are of the view that this appeal also is to be decided in accordance with the law prevailing at the date of its institution and the registration as a confirmation case, as the amending Ordinance made ~ no different provision for an appeal already filed or pending or a case registered as a confirmation case.