Sardar Muhammad Raza, C.J.--Azad son of Muhammad Gul, complainant of FIR No. 549 dated 26.05.2009 of Police Station Cantt; Abbottabad has filed this appeal against the judgment dated 1.04.2010 of the learned Additional Sessions Judge-IV, Abbottabad, whereby the accused Akram, Azhar and Shadam Khan, tried under Sections 17(4) of Ordinance VI of 1979, were acquitted of the charge.
2. In order to appreciate the facts of the case, one has to have a glance through the first information report. Azad complainant (62/63) alongwith his brother Sikandar (40/42) resided in the house of Babu Waheed in Lamian Barian Banda Khatkar village Salhad. On 26.5.2009 the complainant alongwith his family while his brother alongwith his two wives in the adjoining room, were asleep when at about 4.00 a.m. Three/four persons entered the house and belaboured the ladies. On commotion Sikandar woke up and called from his room upon which the assailants reverting towards him started beating him in the door of the room. During altercation the assailants opened fire which hit Sikandar on his head. He fell down injured when in the meanwhile the assailants made good their escape.
3. The complainant called out the neighbour Khani Zaman They carried the injured to the hospital: According to the complainant, he could identify the assailants, if confronted. He charged the assailants for attempting at the life of his brother Sikandar. The injured succumbed to his injury and subsequently the FIR was registered under Section 17(4) of Ordinance VI of 1979 read with Sections 324/302/452/34, PPC.
4. From the plain reading of the FIR, even a layman would appreciate that the assailants are not charged at all for the commission "of either theft or extortion so as to bring the offence within the ambit of Haraabah with murder or dacoity with murder. By all stretch of imagination it was a simple case of trespass and murder for which the charge should have been framed under Sections 302/452/34, PPC. It is not known as to what persuaded the learned trial Court for charging the accused under Section 17(4) of Ordinance VI of 1979 at all. The charge under Section 17(4) of Ordinance VI of 1979 was illegal and void.
5. The jurisdiction of this Court is invoked on the grounds which never exist and if so existed, it was void altogether. A Court which assumes appellate jurisdiction, has the authority to hold, with the application of mind, that the charge has been framed either rightly or wrongly. If the Court has the jurisdiction to hold that the charge is rightly framed, it also has the jurisdiction to hold that it has been wrongly framed.
6. The case having simply fallen under Sections 302/452/34, PPC, the charge was wrongly framed under Section 17(4) of Ordinance C. VI of 1979 and thus the appeal could not lie before this Court.
May be the appellants had the bonafide belief in resorting to this Court but the charge framed by the Court was altogether against the basic facts of the case.
7. Consequently, for reasons above, the appeal is hereby dismissed for lack of jurisdiction.