' AFTAB AHMED GORAR, J.---Instant appeal, calls in question the legality, propriety and validity of the judgment dated 12.02.2014, passed by learned Additional Sessions Judge (Hudood) Sukkur, whereby the appellants were found guilty and sentenced as under: "(i) Under section 302(b), P.P.C. To suffer life imprisonment.
(ii) Under section 392, P.P.C. To suffer RI for 10 years with fine of Rs. 100,000/- each and in case of default to suffer RI for 6 months more. Benefit of section 382-B, Cr.P.C. Was extended to both the appellants".
2. Facts in brief are that FIR No. 224 of 201l, was lodged under section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred as the Ordinance) with Pano Akil Police Station. The investigation was carried out and challan was submitted under section 17(4) of the Ordinance. The trial court framed the charge under section 17(4) of the Ordinance, however, while finding the appellants guilty of the offences, they were convicted and sentenced as stated above.
3. During the pendency of appeal, on 21.07.2014, the following order was passed by this court: "It has been contended by Mr. Parmanand counsel for the complainant that this appeal has been filed in wrong forum as the charge was framed under section 17(4) Enforcement of (Hudood)
Ordinance, 1979, therefore, this appeal was to be filed before Federal Shariat Court and not before the High Court. He requests for time to argue on this point. Learned counsel for the appellant has contended that the counsel for the complainant is taking adjournment in order to linger on the case, therefore he may be given a last chance. Accordingly, it is expected that on the next date of hearing, the learned counsel for complainant will appear and proceed with the matter. Adjourned to 8.8.2014".
4. I have heard learned counsel for the appellants, learned counsel for the complainant as also learned DPG for the State.
5. The learned counsel for the appellants 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 A placed reliance on the case law reported in 2009 PCr.LJ 747 and PLD 2002 SC 534 and submits that the appeal lies before this court.
6. On the other hand, learned counsel for the complainant argued that the instant appeal should have been preferred before Hon'ble Federal Shariat Court, as the FIR has been lodged under section 17(4) of B the Ordinance and the charge has also been framed under the provisions of Hudood Ordinance. In support of his contentions, he relied upon 2010 YLR 657, 2011 SCMR 1142 and 2013 PCr.LJ 105.
7. Learned DPG for the State also adopted the arguments advanced by learned counsel for the complainant.
8. I have considered the contentions advanced by learned counsel for the parties and gone through the available record with their able assistance. The perusal of record reflects that FIR 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 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 my 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 `Tazie is not determinative of the forum. The view can find support from bare reading of section 20 of Ordinance, 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 forums mentioned in section 7 is not available, or for which punishment of amputation or death may not be imposed or enforced under the 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".
9. 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 on appeal from an order under either of the said section 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".
10. Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:- "203DD. Revisional and other jurisdiction of the Court. (1) The Court may 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, and as to the regularity of any proceedings of, such Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."
11. In the case of Muhammad Akbar v. The State (2003 YLR 1339), the Hon'ble Federal Shariat Court, has held as under: "After going through the Constitution, Hudood Laws and case-law, relied upon by the learned counsel in respect of the legal objection raised by the learned counsel for the appellanj, we overruled the same and held that, in circumstances of a case where charge is framed against an accused under any provision pertaining to Hudood Laws, with or without any other section of P.P.C., and the trial Court comes to the conclusion that charge under the Hudood Laws could not be maintained for want of evidence other persons, and proceeds to convict him for any other offence under the provisions of P.P.C. And acquit him from charge under Hudood Laws, the appeal against that judgment would lie to the Federal Shariat Court. This jurisdiction is conferred upon Federal Shariat Court by the Constitution as well as the relevant enactments in Hudood Laws that till hold the field and cannot be taken away by any judgment of any Court unless the relevant provisions referred to above are duly amended. In this connection, firstly we would like to refer to Chapter 3-A of the Constitution of Pakistan hereunder Federal Shariat Court exercises its jurisdiction. Article 203- D and sub-Article 2(a) to Article 203F clearly defines a portion of the powers conferred upon it by the Constitution."
12. In the case of Karamat Khan and another v. The State (2002 PCr.LJ 1868), the Hon'ble Federal Shariat Court held as under: "By now, it is well-settled that if a Court not possessed of jurisdiction to try a case, wrongly assumes jurisdiction and exercises power vested in it, appeal from its decision would lie in the same manner as an appeal would lie from a decision made with jurisdiction."
13. In the case of Muhammad Juman v. The State (2004 MLD 278), this Court held as under: "I have given due consideration to the arguments and have gone through the relevant Articles of Constitution of 1973. It is admitted position that the case pertains to offence punishable under the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, as such the provisions of Articles 203-DD and 203-G of Constitution of 1973 are attracted with are as under:- ' 203-DD. Revisional and other jurisdiction of the Court. (1) The Court may 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, and as to the regularity of any proceedings of, such Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
' Articles 203-G and 203-GG of Constitution of 1973 are also applicable in the case which read as under:- ' 203-G. Bar of Jurisdiction - - - Save as provided in Article 203F, no Court or Tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power of jurisdiction in respect of any matter within the power of jurisdiction of the Court.
' 203-GG. Subject to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all courts subordinate to a High Court".
14. In the case of Moula Bux Gello v. The State (2002 YLR 2956), (Karachi), it was observed as under: "Since offences under section 17(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance VI of 1979 is also triable by the Sessions Court like Article 8 of the Prohibition Order, hence the rule laid down at serial No. (ii) above, shall stand attracted on all fours. Thus an appeal against an order of conviction or acquittal relating to offence under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 can only be preferred before the Federal Shariat Court which Court has the exclusive jurisdiction in such matters"
15.
In the case of Muhammad Safeer v. The State and another (2004 PCr.LJ 899), the Hon'ble Federal Shariat Court held as under:- Thereafter, in cases falling under Hudood Law, Revisional jurisdiction to examine correctness, legality or propriety of orders passed by Sessions Judge or Additional Sessions Judge, stood exclusively conferred on Federal Shariat Court any Revisional or inherent jurisdiction of High Court in such matters was taken away in Iqbal Hussain v. The State PLD 1985 Lah. 65 at 67.
The matter becomes clear and benefit of any ambiguity, if one peruses Article 203-G which ousts the jurisdiction of all other Courts or Tribunal except Supreme Court of Pakistan to interfere with the judgment or decision of Federal Shariat Court in exercise of its powers under Chapter 3-A of 'the Constitution.
16. After going through Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1979, section 24 of the Ordinance VI of 1979 and judgments cited above by the learned counsel for the complainant, I am also of the view that the appeal against acquittal order in a case tried under section 17(4) of the Ordinance, 1979 also stands covered under section 24 of the said Ordinance read with Article 203-DD of the Constitution and it is exclusive jurisdiction of the Federal Shariat Court to entertain, hear and decide appeals in such cases. FIR in this case was registered under section 17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and charge was also framed under that section and appellants were tried for the said charge. Result of the trial shall not change the jurisdiction of the court. The view taken by Mr. Shar, learned counsel of the appellants is not based on correct appreciation of law, hence liable to be ignored.
17. The citations referred to by the learned counsel for the appellants render no help, as the facts are distinguishable, as such inapplicable to the peculiar facts of this case.
18. In the light of above discussion, I am of the opinion that the instant appeal before this court is incompetent. The Additional Registrar of this court to send the appeal along with the record of the case, after retaining Photostat copies thereof to the Hon'ble Federal Shariat Court. In view of above stated legal proposition, this appeal stands transferred to the Hon'ble Federal Shariat Court.