' MUHAMMAD NOOR MESKANZAI, J.---Instant jail appeal, calls in question the legality, propriety and validity of the judgment dated 15th June, 2006 passed by the Additional Sessions Judge/Juvenile Court, Pishin, whereby the appellant was found guilty and sentenced as under:-- "Under section 302(b), P.P.C. To suffer simple life imprisonment. Benefit of section 382-B, Cr.P.C.
Was also extended in his favour."
2. Facts in brief are that F.I.R. No,34 of 2003 was lodged under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 with Levies Thana, Khanozai. The investigation was carried out and challan was submitted under sections 17(3) of Haraabah, 302, Q&D, 365 and 414, P.P.C. The trial Court framed the charge under section 17(4) of Haraabah, however, while finding accused/appellant guilty of the offence, he was convicted and sentenced as mentioned hereinabove.
3. After passing of said judgment, appellant Ghulam Muhammad submitted the instant jail appeal along with an application for condonation of delay of 41 months, to this Court through the Superintendent Central Jail, Mach. The appeal was admitted to regular hearing on 14th December, 2010.
4. During the pendency of appeal, on 7th August, 2012, the following order was passed by this Court:-- "The learned P.G. Pointed out that the instant appeal should have been preferred before the Hon'ble Federal Shariat Court, as the F.I.R. Has been lodged under section 17(4), Harraba Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and the charge has also been framed under the said offence. Moreover, during the pendency of the proceedings, a revision petition was filed before the Hon'ble Federal Shariat Court and Hon'ble Federal Shariat Court remanded the matter to the learned Sessions Judge, for disposal of application within the provisions of Juvenile Justice System Ordinance. Under such circumstances, the appeal should be transmitted to, the Hon'ble Federal Shariat Court.
' In view of 'submissions made by the learned P.G., the learned counsel for the pauper appellant to argue on the, point. Adjourned to 9-8-2012 and office to issue notice to Mr. Abdul Karim Yousafzai, learned counsel for the pauper appellant and also to send him copy of this order."
5. We have heard Mr. Abdul Karim Yousafzai, learned counsel for pauper appellant whereas the State was represented by Mr. Muhammad Wasay Tareen, learned P.G.
' Learned counsel for the pauper appellant argued that this Court has jurisdiction to entertain the instant appeal as the sentence has been awarded under the provisions of Pakistan Penal Code. In this regard he placed reliance on the following judgments:-
(i) PLD 2002 SC 534
(ii) 1997 PCr.LJ 900
(iii) 1984 SCM R 129 ' On the other hand, the learned P.G. Contended that the instant appeal should have been preferred before the Hon'ble Federal Shariat Court, as the F.I.R. Has been lodged under section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and the charge has also been framed under the provisions of Hudood Ordinance. Moreover during the pendency of the proceedings, a revision petition was filed before the Hon'ble Federal Shariat Court and Hon'ble Federal Shariat Court remanded the matter to the learned Sessions Judge for disposal of application within the provisions of Juvenile Justice System Ordinance. Under such circumstances, the appeal should be transmitted to the Hon'ble Federal Shariat Court.
6. We have considered the contentions so put forth by the learned counsel for the parties and gone through the available record with their able assistance. The perusal of record reveals that F.I.R. Was lodged under Hudood Ordinance and charge was also framed under the provisions of Hudood Ordinance. It is also admitted that sentence has been awarded under the P.P.C., but the question remains that as to whether is it the sentence that determines the forum, or, is- it the charge that decide the forum? In our humble view, legally it is the 'charge' that determines the forum. There is no cavil with the legal proposition that on account of non-availability of evidence satisfying, the standard of proof as required under section 7 of the Ordinance, always sentence is to be inflicted by mentioning a section of P.P.C. Within the meaning of section 20 of the Ordinance. The mere passing of the sentence under "Tazir' is not determinative of the forum, The view can find support from bare reading of section 20 of Ordinance, 1979, which is reproduced as under:- "Punishment for haraabah liable to tazir.---Whoever commits haraabah which is not liable to the punishment provided for in section 17, or for which proof in either of the forms mentioned in section 7 is not available, or far which punishment of amputation or death may not be imposed or enforced under this Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code (Act XLV of 1860) for the offence of dacoity, robbery or extortion, as the case may be."
7. Needless to observe that as per the provisions of subsection (2) of section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 the sentence less ,than two years has, been made appealable before the High Court. For ready reference, subsection (2) of section 24 of the Ordinance is reproduced:-- "2 [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 3 [or from an order under any provision of this Ordinance which impose a sentence of imprisonment for a term exceeding two years] shall lie to the Federal Shariat Court:"
' Even the citation referred to by the learned counsel for pauper appellant does not support the contention of learned counsel for appellant. For ready reference the dictum laid down in the case titled as Muhammad Abbas and another v. The State reported in 1984 SCMR 129 relevant at page
133. Relevant observations therefrom are reproduced hereinbelow:- ' "Mr. Dilawar Mahmood, learned counsel for the petitioners, urged before us, as had been done before Federal Shariat Court, that the challan having been submitted for' offences under the Pakistan Penal Code, the Court could not have charged the petitioners with an offence under the Ordinance and that in any case the petitioners could have been charged under the first proviso to section 20(1) of the Ordinance with a different offence only after the evidence led had shown that such different offence had been committed but not before. The contention has no merit. The narration of the facts in the report submitted under section 173, Cr. P. C. Disclosed an offence falling under section 18 of the Ordinance and, therefore, even if the police officer had not mentioned that section in his report, the trial Court was competent to frame a charge under section 18 of the Ordinance also. It is well-established principle of law that the trial Court is not bound by the conclusions reached by the Investigating Officer in his report submitted under section 173, Cr.P.C. See Falak Sher v. State (1). Upon the ,disclosure of an offence falling under the Ordinance, the Court of Session acquired exclusive jurisdiction to try the same by virtue of the second proviso to section 20(1) of the Ordinance, which says "Provided further that an offence punishable under the Ordinance shall be triable by a Court of Session and not by a Magistrate authorized under section 30 of the Code" The Court of Session could along with an offence under the Ordinance also try offences under and other law committee in the same transaction, in view of section 235, Cr.P.C. And the first proviso to section 20(1) of the Ordinance'. The Federal Shariat Court had, rightly therefore, rejected the objection.
' The next objection was in regard to he competency of the reference before the Federal Shariat Court, as according to learned counsel the reference for confirmation of the death sentence on a murder charge could lie only before the High Court. In this connection, he pointed out that in fact an appeal (Criminal Appeal No,171 of 1985) had already been preferred Ware the High Court and was still pending there. As the trial by the 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 subsection (2) of the said section. The objection, too, had been rightly rejected by the Federal Shariat Court".
' Reliance could also be placed on the judgment titled as the State v. Pirak reported in 1997 PCr.LJ 1900, relevant at page 1909, which is reproduced:-- "A bare perusal of the above reproduced dictum laid down in different cases would revel(sic) that where a case is registered under the Offences Against Property (Enforcement of Hudood)
Ordinance VI of 1979 (hereinafter referred to as the `Ordinance') irrespective of the fact whether conviction is awarded or acquittal is made the appeal shall lie to Federal Shariat Court except in those cases where conviction is less than 2 years".
8. So in this case, the sentence passed as Tazir is one in the light of provisions of section 20 of the Ordinance. The unreported judgment of the lion'ble Supreme Court titled as Basbir. Ullah v. The State dated 8th February, 2001, wherein C.P.L.A. No,238 of 2000 was converted into appeal and granted. The dictum laid down therein has decided the controversy forever. The relevant portion of the said judgment is reproduced as under:- "We have heard both sides at length and perused the file as well as various judgments cited at the bar. As far the facts of this case are concerned, there would be the determining factor, as far the question of jurisdiction is concerned. In the instant case, complainant was deprived of his Datson Pick-up and the driver was done to death in the same transaction, therefore, police rightly applied section 17(4) ("Hardabah") of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979. Learned trial Court framed the charge under section 302/34, P.P.C. As well as under section 17(4) ("Haraabah") of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979. At the conclusion of the trial benefit of doubt was given to the accused for lack of absolute proof as far as offence of Haraabah was concerned. But the offence of murder was established and they were accordingly" convicted. The proposition in the instant case would be, if the complainant wanted to impugn the judgment by challenging acquittal of the accused for Haraabah offence, obviously, an appeal against acquittal had to be filed before the Federal Shariat Court and in such circumstances argument that appeal against conviction would be before the High Court, would be most illogical. Jurisdiction of Court has to be determined in such like cases at the time of framing of charge, which was exclusively of Shariat Court as far the present case is concerned."
9. Similarly, a judgment of this Court, delivered at the strength of the above dictum fully covers the subject i.e, Murder Reference No,17 of 2009, (titled as The State v. Himat Ali), wherein one of us (Justice Muhammad Noor Meskanzai) was a member of the Division Bench and. The author of the said judgment. The Murder Reference sent to this Court by Additional Sessions Judge, Panjgur was directed to be transferred to Hon'ble Federal Shariat Court. In the said judgment, it was held as under:-- "In view of the facts and circumstances of the case and in the light of above legal position, the Murder Reference has erroneously been sent to this Court as this Court does not have jurisdiction to entertain the same. Accordingly, the file of the aforesaid Murder Reference along with original record he sent to the Incharge, . Federal Shariat Court Registry to be placed before a Bench of Hon'ble Federal Shariat Court for consideration, after retaining photocopy thereof for record purposes.."
10. Further reliance is placed on the order dated 14th November, 2008 passed in Criminal Appeal No,13/Q of 2007 and Criminal Miscellaneous Application No,19/Q of 2007 by a three Member Bench of Hon'ble Federal Shariat Court of Pakistan, which determined that the correct appellate forum was the Federal Shariat Court and not the High Court.
The citations referred to by the learned counsel for pauper appellant render no help, as the facts are distinguishable, as such inapplicable to the peculiar facts of this case.
' In the light of above discussion, we are of the opinion that the instant jail appeal presented through Superintendent Central Jail, Mach before this Court is incompetent. The Registrar of this Court to send the appeal, application for condonation of delay, paper-book along with the record of the case, after retaining Photostat copies thereof to the Hon'ble Federal Shariat Court.
Thus, in view of above stated legal proposition, this jail appeal stands transferred to the Hon'ble Federal Shariat Court.
Appeal transferred.