' MRS. IRSHAD QAISER, J.--Sajid son of Khan Afsar, Sajid son of Mian Khan and Khan Afsar son of Sumandar Khan have filed the present appeal against the judgment of conviction, passed by Additional Sessions Judge-III, Abbottabad vide judgment dated 9-3-2010, whereby the present appellants were convicted and sentenced as follows:-- "The accused Sajid son of Khan Afsar and accused Sajid son of Mian Khan, both were convicted and sentenced under section 302-B P.P.C. To death (on two counts) as Tazir, they both be hanged by neck till their death. Both the accused Sajid son of Khan Afsar and Sajid son of Mian Khan also convicted under section 324, P.P.C. And both were convicted and sentenced to undergo five (5) years' R.I and they also convicted under section 337-A-IV, P.P.C. And convicted and sentenced to undergo four (4) years' R.I and both were equally liable to pay' Arsh to the injured P.W Shaheen Ashraf 15% of the deiyat amount Rs.100,000 (one lac) equally which be recovered from the accused equally and be paid to the injured P.W. Shaheen Ashraf and they be not released from jail till the payments of Arsh amount. Accused Khan Afsar son of Samundar Khan was convicted and sentenced for life imprisonment (on two counts) as Tazir. The execution of the death sentence will be subject to the confirmation of the Honourable Peshawar High Court Peshawar. The death reference be prepared and send to the Honourable Peshawar High Court for confirmation. The compensation within the meaning of section 544-A, Cr.P.C. Was imposed upon all the above mentioned convicted accused Rs.300,000 (three lac). On the recovery of the same it shall be paid to the legal heirs of the deceased Haji Rafique as per their Shari shares. In default they further undergo 6 months' S.I. Under section 544-A(2), Cr.P.C. All the sentences of imprisonment are concurrent. The benefit of section 382-B, Cr.P.C extended to all the convicted accused named above.
2. Khurshid complainant also filed Criminal Revision No.27 of 2010 for enhancement of sentence awarded to Khan Afsar, respondent No.1 vide the impugned judgment dated 9-3-2010 of the learned trial Court.
3. On 18-4-2012, the case was heard at some length. During the course of arguments, learned counsel for the appellants raised various questions/ objections regarding the maintainability of the instant appeals etc., which are formulated as follows:--
(i) Whether appellants were charged under Offences against. Property and what was the result of trial Court after its judgment?
(ii) Whether the trial Court in the present case was right to send the murder reference to this Court i.e. High Court for confirmation or there is any other forum in case of Hadood Law, Offences against property for which appellants are charged?
(iii) Whether appeal can be filed before the High Court in case of offences against property when the appellants were charged under section 17(4) Haraba whereas after commencement of trial they were sentenced by the trial Court under section 502, P.P.C. Read with sections 324, and 337- A-IV, P.P.C.?
(iv) Whether appeal can be filed before Federal Shariat Court irrespective of the result of the charge or conviction?
(v) Whether revision petition can be filed also before the Federal Shariat Court or before High '
Court in case of conviction under Hadood Laws or P.P.C.?
(vi) Whether there is no bar of jurisdiction of any other Court. Except Federal Shariat Court regarding Hadood Laws?
4. As per record, the present case was registered under section 17(4) Offences against Property (Enforcement of Hadood) Ordinance, 1979 vide F.I.R. No.95 dated 15-6-2006 Police Station Bagnotar, District Abbottabad. The investigation was also conducted under the, same Ordinance. After completion of investigation challan was submitted in competent Court of law and then the case was entrusted to the Additional Sessions Judge-III, Abbottabad for trial of accused. The accused were charge sheeted on 29-11-20Q6 under section 17(4) Offences against Property (Enforcement of Hadood) Ordinance, 1979 and the language of the charge framed by the trial Court is as under:-- "CHARGE ' I, Muhammad Amir Nazir, Additional Sessions Judge-III, Abbottabad, hereby charge you accused Sajid son of Khan Afsar aged about 18 years, Khan Afsar son of Summandar Khan aged about 54 years resident of Bagnotar District Abbottabad and Sajid son of Mian Khan aged about 25 years cast Pathans residents of District Rawalpindi, as follows; "Firstly; That on 15-6-2006 at 00:15 hours within the criminal jurisdiction of Police Station Bagnotar you all in furtherance of your common intention of you all the accused duly armed with deadly weapon had committed Haraba at Bagnotar road on gun point during the course of which one Haji Rafique murdered, Shaheen injured whereas Tariq your co-accused also received injuries who succumbed to the injuries and later died and thereby you all the accused committed an offence punishable under section 17(4Y Haraba and within my cognizance.
' And I hereby direct that you accused, named above be tried by this Court on the said charge."
5. After concluding of trial, the appellants Sajid son of Khan Afsar, Sajid son of Mian Khan and Khan Afsar were convicted under sections 302(b)1324/337-A (iv), P.P.C. And all the three accused were sentenced as mentioned above and the trial Court sent the murder reference of accused Sajid son of Khan Afsar and Sajid son of Mian for confirmation vide his judgment dated 9-3-2010 to this Court. The appellants filed appeal against the judgment of conviction, whereas the complainant party filed criminal revision for enhancement of sentence against the accused.
' Now, the question of determination is that whether the High Court or Federal Shariat Court has the jurisdiction to entertain and hear the murder reference, appeal and revision.
6. Today, arguments of learned counsel for appellants and A.A.-G. On behalf of State assisted by learned counsel for complainant heard and available record thoroughly perused.
7. Learned counsel for the appellant relied upon 2000 P.Cr.LJ 1155, 2007 P.Cr.LJ Lahore 295, 2003 PCr.LJ 430, PLD 1999. SC 1063 and 2004 SCMR 207.
8. Learned counsel for complainant relied upon PLD 1983 FSC 33, 1984 SCMR 129 and 2007 PCr.LJ 295.
9. Under section 24 of Offences against Property (Enforcement of Hudood) Ordinance, 1979, the second proviso of section 20 provides that the offences punishable under section 9 or 17 shall be tribal by the Courts of Sessions not by the Magistrate authorized 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 provision of this Ordinance which imposed a sentence of imprisonment for a term exceeding two years shall lie to Federal Shariat Court.
10, Section 20 of the Offences against Property (Enforcement of Hudood) Ordinance, 1979, deals with punishment of Harraba "liable to Tazir". According to which whoever commit Haraba which is liable to punishment provided for in section 17, or for which proof in either of the forms mentioned under section 7 is not available or for which punishment of amputation or death may not be imposed or enforced under this Ordinance shall be awarded, the punishment provided in P.P.C. For the offence of dacoity, robbery or extortion as the, case may be.
11. According to Article 203-DD of Constitution of Islamic Republic of Pakistan 1973, the Federal Shariat Court call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by.
12. In order to reach the correct conclusion we have gone through different case laws. In case reported in Falak A Sher v. State (1996 PCr.LJ 804), the view taken was that every case, arising out of Hudood Laws irrespective of the fact whether the conviction is recorded under Hudood or General laws appeal would be competent before the Federal Shariat Court alone.
13. As per the judgment of Federal Shariat Court reported in 2011 PLD FSC 1, Federal Shariat Court is only competent to decide the case under Article 203-DD of the Constitution Islamic. Republic of Pakistan 1973 and there is bar on jurisdiction for other Court.
14. In case of. Ghazafar Ali v. State (2010 YLR 657), it is held that since the accused was charged and tried under section 17 of Offences against Property (Enforcement of Hadood) Ordinance, 1979 notwithstanding the fact that he was acquitted from the charge under the said ordinance but convicted only under penal Code, the appeal would lie to the Federal Shariat Court and not to the High Court. Reference of Confirmation of death sentence would also be competent before Federal Shariat Court.
15. In case State through Advocate-General Sindh v. Munir Ahmed and 2 others reported in PLD 2007 Karachi 184, the Hon'ble Judges of the Sindh High Court while deciding the Criminal Acquittal A Appeal No. 293 of 1993 decided on 22-11-2006 held "we have gone through the case of Muhammad Sharif .v. State PLD 1999.SC 1063 and found that the appellate Bench of the honourable Supreme Court of Pakistan after considering the conflicting judgment of various High Courts and interpreting the Artiele 27 of Offences. Against Property (Enforcement of Hudood) Ordinance, 1979 decided that word "Court" appearing in section 417 would mean the Federal Shariat Court after giving interpretation to the word "Mutatis mutandis" appear in Article 27 of the Order. It was held that appeal against judgment lies to Federal Shariat Court and not High Court,
16. In case State v. Parik reported in 1997 PCr.LJ 1900 it was held that under section 24 of the Ordinance, 1979 "whether a case is registered under this 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 sentence is less than two-years."
17. In Qurban Ali v. State Criminal Appeal No.14 of 1998 decided on 18-8-1998 in Karachi Judgment authored by the Hon'ble Judge Rana Bagwan Das held that all appeals arming out of cases of which cognizance was taken under Hudood laws would be competent only before the Federal Shariat Court and not before the High Court even though the conviction has been recorded under general law.
18. In a judgment reported in PLD 2003 Karachi 441, Fayaz Ahmed v. State it was held that result of the trial Court would not determine forum of appeal. First proviso to section 24 of Offences against Property had enlarged the scope of authority of a Court trying the offence under the said Ordinance if evidence on record had provided commission of offence other than one which the accused was charged. Trial Court could competently award punishment for such offence. If it was competent to try that offence Second proviso of section 24 have provided that punishment resulting from the trial under sections 9 and 17 of the said Ordinance, appeal would lie to Federal Shariat Court irrespective of question of sentence of ' imprisonment. Appeal of accused who was tried under section 17(3) Haraba would lie before the Federal Shariat Court and not before the High Court even that he was convicted and sentence under section 392 of wrongly filed The appeal having been rongly filed before the High Court memo of appeal was returned for .Presentation before the competent Court.
19. On the careful consideration of the facts and circumstances of the case and with particular reference to section 24 of Offences against Property (Enforcement of Hadood) Ordinance, 1979, we find ourselves in agreement with the learned counsel for appellant, as well as counsel for complainant. It is accusation and the nature of offence for which the accused was initially tried and charged which would determine the forum of appeal and not the outcome of trial because forum of appeal would not change with the result of the trial. Any other view would render the provision contained in section 24 of Ordinance, redundant.
20. Following the dictum laid down by the apex Court we found that this Court has no jurisdiction to hear the appeal against the order passed by the trial Court. We are of the view that the present reference appeal and revision are completely misconceived and not maintainable before this Court. It is wrongly presented before this Court. Therefore, the Registrar of this Court is directed to send the appeal, murder reference and revision petition along with other relevant record to Federal Shariat Court for further necessary action.