MUHAMMAD IQBAL MAHAR, J.---Appellant Ali Dino Khokhar and Manthar Ali Magsi were challaned in FIR No, 93/2006 of Police Station, Darri for offence punishable under sections 17(3) and 17(4), Offence Against Property (Enforcement of Hudood) Ordinance, 1979. On completion of trial, they were found guilty and convicted for offence punishable under section 396, P.P.C., vide judgment dated 3.12.2014 passed by learned Additional Sessions Judge-V Larkana in Sessions case No,625/2009. The appellant Ali Dino Khokhar was awarded death sentence while appellant Manthar Ali Magsi was awarded imprisonment for life. They challenged their conviction and sentence through instant appeal before this Court. The appeal was admitted, R and Ps were called, Notice was issued to DPG and paper Book was ordered to be prepared. Before proceeding with the appeal this Court called upon the learned counsel for the appellants, vide order dated 14.6.2016, to satisfy the Court on the point of jurisdiction as to whether the appeal lies before this Court or before Federal Shariat Court, as the FIR was registered for offences under sections 17(3) and 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and charge was also framed under Hudood Laws, however the appellants were convicted under section 396, P.P.C.
2. In this context, learned counsel for the appellants has contended that no doubt the FIR was registered for offence under Hudood laws but finally the learned trial Court convicted the appellants for offence punishable under section 396, P.P.C., therefore appeal lies before this Court and the Federal Shariat Court has no jurisdiction to entertain the(sic.) Shabbir Ahmed v. The State (2012 PCr.LJ 1491), Nizamuddin v. The State (1999 PCr.LJ 1761) and Muhammad Tariq v. The State (2009 PCr.LJ 747).
3. As against above, the learned D.P.G has submitted that finding of learned trial Court cannot change the jurisdiction. Since the case was registered and charge was framed under Hudood Laws, the appeal lies before Federal Shariat Court and the appellants have wrongly filed the appeal before this Court. He relied upon case of Allahdad @ Dadi v. The State (2007 PCr.LJ 295).
4. We have heard the learned counsel for the appellants, learned D:P.G and have perused the record and case law minutely.
5. Admittedly the FIR of the instant case was registered for offence punishable under sections 17(3) and 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The appellants were charged and tried under Hudood laws but were convicted for offence punishable under section 396, P.P.C., The learned trial Court has not given findings or reference to section 17(3) or 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 while awarding the sentence to the appellants on the contrary held that: "Since the charge 'against the accused persons has been proved, I, therefore, convict the accused under section 265-H(2), Cr.P.C. and award them sentences under section 396, P.P.C.".
In order to decide the question of jurisdiction of this Court, we would like to refer second proviso of section 24 of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979, which reads as under:- 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 (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;"
This provision of law makes it clear that if the trial is conducted for an offence under sections 9 and 17 and sentence of imprisonment for a term exceeding two years is awarded the appeal shall lie to the Federal Shariat Court, irrespective of the fact that ultimately the Court convicts the offender for another offence falling in P.P.C.
6. From the plain reading of section 24 (ibid) it is clear that it is the accusation and the nature of the offence for which the accused was charged/tried which would form the basis for determination of the forum of appeal and not the result of the trial. Thus the appeal arising out of he cases of the offence cognizance whereof was taken and charge was framed in Hudood law would lie only to Federal Shariat Court and not before High Court even though the conviction has been awarded under P.P.C. In this respect we are fortified by the case of Juman and another v. The State (PLD 2016 Sindh 191), Ghulam Muhammad v. The State (2013 PCr.LJ 105) in both the cases Division Bench of this Court as well as Baluchistan High Court in similar circumstances directed the Additional Registrar to send the appeals to Federal Shariat Court. We are also fortified by case of Shabir Ahmed v. The State (2011 SCMR 1142) wherein the FIR was registered under Offences Against Property (Ehforcement of Hudood) Ordinance, 1979 read with 392/34, P.P.C. but on the conclusion of trial, learned trial Judge convicted the accused under section 392/34, P.P.C. The conviction and sentence.; were challenged before the Federal Shariat Court through separate appeals which were dismissed and the honourable Supreme Court entertained the appeals and allowed the same.
7. Adverting to the case law relied upon by learned counsel for the appellants suffice it to say that the facts of the aforesaid case laws are totally different. In case of Shabir Ahmed (supra), originally the FIR was registered under section 17(2), Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, but the challan was submitted for offence under section 392, P.P.C., the learned trial Court framed the charge under section 392, P.P.C. and on the conclusion of trial the learned trial Court found the accused guilty of offences under sections 392, 511 read with 34, P.P.C., therefore, the appeal was returned by Federal Shariat Court, while in case of Nizamuddin (supra), FIR was registered under sections 454, 380, 324, 337, P.P.C. read with 9/14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979, Challan was submitted for same offences but learned trial Court framed the charge under sections 324, 374, 380 and 454, P.P.C. hence the appeal was returned to High Court. In case of Muhammad Tariq (supra) FIR was registered under Hudood Laws, conviction was awarded under P.P.C. but appeal was heard and decided by learned Single Judge of this Court and the sentence was reduced but we have already referred case of Shabir Ahmed (supra), in which the honourable Supreme Court has taken different view.
8. Keeping in view the above discussion and case law, we are of the view that when the charge is framed under Hudood Laws and sentence of imprisonment for a term exceeding two years is awarded the appeal before this Court is incompetent and the same would lie before Federal Shariat Court, therefore, the Additional Registrar of this Court is directed to send the appeal, its record and Criminal Reference No, D05/2014, to the Federal Shariat Court.