SADIO ALI, J.- Through this single judgment, we propose to decide this (Cr.Appeal No. 195-A/2024) and the connected Cr. Appeal No. 192-A/2024 titled "Asad & another Vs. The State & another", as both these appeals have arisen out of a common impugned judgment dated 28.11.2024 delivered by learned Additional Session Judge, Abbottabad at Havelian in case FIR No. 181 dated 26.06.2020 registered under Section 17 (4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 read with Sections 460 / 458 / 148 / 149 PPC and Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Nara District Abbottabad, whereby the appellants of both these appeals have been convicted and sentenced as follows:- "Appellant of this appeal namely, Rashid Mehmood was convicted under Sections 458 PPC read with Sections 148 / 149 PPC and sentenced to imprisonment for fourteen (14) years with a fine of Rs.1,00,000/- or in default of payment of fine to further undergo three (03) months S.I.
He was also convicted under Section 496 PPC read with Section 460 PPC and sentenced to life imprisonment on two (02) counts with a fine of Rs.5,00,000/- or in default to suffer further six (06) months S.I.
He was further convicted under Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 and sentenced to three (03) years R.I.
All the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C.
Appellants of the connected appeal namely, (1) Asad and (2) Javed were convicted under Sections 496 / 460 PPC read with Sections 148 / 149 PPC to ten (10) years imprisonment with a fine of Rs.1,00,000/- each, or in default to suffer further three (03) months S.I with benefit of Section 382-B Cr.P.C."
2. The backdrop of the instant case is that on 26.06.2020 the complainant (Mst. Maria Zainab) while lodging report had charged three (03) unknown culprits for committing murder of her mother-in- law and attempting at the life of her father-in-law, besides committing dacoity, hence, FIR No. 181 was lodged under Section 17 (4) of the Offences Against Property (Enforcement of lludood)
Ordinance, 1979 read with Sections 460 / 458 / 148 / 149 PPC at Police Station Nara District Abbottabad. After arrest of the appellants, they were put to trial and the learned trial court after conducting a full dressed trial convicted them to different sentences, mentioned above, vide impugned judgment dated 28.11.2024. Felt aggrieved of the impugned findings of learned trial court, the appellants have filed this and the connected appeal before this court on 05.12.2024 and 07.12.2024 respectively, which were admitted 0011 to regular hearing on 14.01.2025. On 06.05.2025 Mr. Atif Ali Jadoon, Advocate, while submitting his power of attorney on behalf of the complainant, requested for adjournment on the ground of his being freshly engaged in the case, hence, the case was adjourned for today i.e. 03.06.2025.
3. During the course of arguments, it came to limelight that although the appellants were indicted under Section 17 (4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, charge against them was also framed under the Hudood Ordinance and trial in the case was conducted by the court of Session but whether (aggrieved of the order / judgment passed by the court of Session) they were required to file an appeal before this court or before the Hon'ble Federal Shariat Court?
4. While answering the ibid question, learned counsel for the appellants contended that although the appellants were charged under Hudood Ordinance but as they were convicted and sentenced under Tadzir, therefore, the instant appeals have competently been filed.
5. To the contrary, learned counsel appearing on behalf of the complainant contended that no doubt the appellants were convicted and sentenced under Tadzir for an offence which was falling under Hudood Ordinance, therefore, the appellants were required to move to Federal Shariat Court and not to this court.
6. In order to reach at a just conclusion, we deem it appropriate to mention here that Section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance 1979 clearly provides punishment for Haraabah liable to Taazir. For advantageous purpose Section 20 of the Ordinance is reproduced below:- "20. 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 for 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."
From the above quoted provision it has become clearer than crystal that if an accused is tried under Hudood Ordinance, even then he can be punished under Taazir. Besides, the question involved in this and in the connected appeal had earlier been brought before the Hon'ble Federal Shariat Court in the case of "Fazal Din Vs. Tai Din" reported as PLD 1983 FSC 33 wherein it had elaborately been discussed / decided in the following terms: - "The offence under Section 302 PPC is certainly an offence under a law other than the Ordinance but the Sessions Judge being competent to try both the offence with which the respondent is charged, he could pass a sentences in a case tried by him under the Ordinance for an offence under the PPC also. What he could do can also be competently done by an appellate court. Now proviso 2 of subsection (1) of Section 20 provides that "an offence punishable under this Ordinance shall be triable by a court of Session" and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court. Proviso 1 of the same subsection permits the competent court (Sessions Judge in the present case) to try the offence under any other law also and award punishment thereunder. By virtue of this provision the trial and conviction by the Sessions Judge of any offence inter alia under the PPC becomes an offence punishable under this Ordinance for the purpose of appeal to the Federal Shariat Court. This can e the only reasonable interpretation of the two provisos of section (20) of the Ordinance. Any other interpretation would lead to an unreasonable result that the order of conviction under two different statues as a result of one trial may be appealable in two different forums."
7. After delivering the ibid verdict, the matter went before the Hon'ble Shariat Appellate Bench, which was maintained vide judgment passed in the case of "Taj Din Vs. The State" reported as 1984 SCMR 506 by placing reliance on the judgment delivered in the case of "Muhammad Abbas & another Vs. The State" reported as 1984 SCMR 129 wherein the convict besides offence under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was also convicted under Section 302 PPC and sentenced to death, hence, appeal of the convict and murder reference sent by the learned trial court were held to be maintainable before the Hon'ble Federal Shariat Court. Relevant paragraph of the judgment reads as under: - "As the trial by 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."
8. In the case in hand initially the appellants were charged under Section 17 (4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 alongwith Sections 460 / 458 / 148 / 149 PPC as well as Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 and at commencement of the trial, charge against them was specifically framed under Section 17 (4) of the Ordinance ibid, whereafter they were convicted and sentenced under Taazir, thus, there is no bar, as discussed in the preceding paragraph, that Code of Criminal Procedure 1898 shall not apply to the accused rather the provisions of Cr.P.0 shall apply mutatis mutandis in respect of cases under the Ordinance. For convenient we would like to reproduce Section 24 of the Ordinance ibid, which reads as under: - "24. Application of Code of Criminal Procedure, 1898.-(1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall apply, mutatis mutandis, in respect of cases under this Ordinance: Provided that, if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and to award punishment therefore, be convicted and punished for that offence; 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 authorised 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; Provided further that a trial by a Court of Session under this Ordinance shall ordinarily be held at the headquarters of the Tehsil in which the offence is alleged to have been committed."
A glance over proviso (2) to Section 24 clearly depicted that punishment exceeding two (02) years shall lie to the Hon'ble Federal Shariat Court. Reliance in this respect may also be placed on the judgment delivered by Hon'ble Shariat Appellate Jurisdiction delivered in the case of "Muhammad Sharif Vs. The State" reported as PLD 1999 SC 1063 where it was held as under: - "We have given serious thought to the submissions of the learner counsel for the parties and have also minutely gone through the aforenoted judgments and the relevant provisions contained in four Hudood Laws i.e Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance VII of 1979), Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance VIII of 1979), the Prohibition Order (President's Order No.4 of 1979) and under the Offences against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance VI of 1979). A close study of the history of these four Hudood Law and the amendments introduced therein from time to time show that when the Prohibition Order as well as Ordinance VI of 1979 relating to Offences against Property were promulgated in 1979, provisions of section 24 of Ordinance 1979 and Article 27 of the Prohibition Order contemplated trial of the offence by ordinary criminal Courts and the appeals to be heard and decided by the forum provided by the Code of Criminal Procedure. Both these provisions provide that unless otherwise provided, the provisions of Code of Criminal Procedure, 1898 shall apply mutatis mutandis in respect of cases under the Ordinance/Order. In 1980 Federal Shariat Court was established and vide Presidential Order No.5 of 1980 second proviso was added to Article 27 of the Prohibition Order (P.O. No.4 of 1979) and vide Ordinance No. XIX of 1979 (second proviso was added in section 24 of Ordinance No. VI of 1979 relating to Offences against Property whereby offences punishable under Article 8 of the Prohibition Order and the offences punishable under section 9 or section 17 of Ordinance No. VI of 1979 (Offences against Property) were made triable exclusively by a Sessions Court; and orders passed under the said Article/sections were made appealable before the Federal Shariat Court."
9. It is also to be borne in mind that proviso (2) to Section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 provides that the provisions of the Code of Criminal Procedure, 1898 shall apply mutatis mutandis, poses no difficulty in preferring the aforenoted interpretation.
10. There is no denial to the factum that although the appellants were booked under the Hudood Ordinance and charge against them were framed under the said ordinance but after conducting a full-fledged trial they were convicted and sentenced under Tacizir, however, yet keeping in view the above elaborated discussion the appellants were required to move their appeals before the Hon'ble Federal Shariat Court and not before this court as mere passing of sentence under Tadzir was not the determining factor for forum of appeal rather it would be the charge that determined the forum of appeal.
11. In view of what has been discussed hereinabove, we feel no hesitation to hold that this and the connected appeal, being not competently filed before this court, stand transferred to the Hon'ble Federal Shariat Court of Pakistan with direction to Additional Registrar of this court to send these appeals alongwith record forthwith by retaining copy of memorandum of each appeal for office record. Order accordingly.