Mir Hazar Khan Khoso; J.- Relevant facts, briefly stated are that complainant Mohammad Aslam on 26.6.1987 lodged complaint with Naib Tehsildar Dasht for offences under sections 380/382/385/386/146/148/149 of the Pakistan Penal Code alleging that private respondents along with others, forming unlawful assembly armed with deadly weapons came to their lands and for ibly robbed their grain from 'Khirmans'. On completion of investigation challan was prepared towards 27.7.1987 and submitted before Assistant Commissioner, Mastung, exercising powers of Deputy Commissioner under the Porvisions of Criminal Law (Special Provisions) Ordinance II of 1968, who consequently took cognizance in the matter on 2.8.1987.
It may be seen that private respondents moved an application under section 498 Cr. P.C. Before learned Sessions Judge, Kalat at Mastung, seeking bail which was however granted by said court vide order dated 25.8. 1987. Feeling aggreived from aforesaid order of release, petitioner on 13.9.1987 submitted present petition prying for cancellation of bail granted to respondents 2 to 9.
2. Main contention raised on bahalf of petitioner was that once, cognizance, in the matter is validly taken under the provisions of Ordinance II of 1968 the jurisdiction of Sessions Court for considering bail application stands completely ousted. As such impugned odcr was ex-facie void and without jurisdiction.3. Whereas defending impugned order, contention was raised that stated allegations against private respondents clearly constituted offence of theft which is exclusively triable under the provisions of "the Offences against property(Enforcement of Hadood) Ordinance VI of 1979'(hercinaftcr referred to as "Hadood Ordinance") explicitly bars jurisdiction of all the courts including forums or adjudicate upon such matter. However, to consider rival contention, following points was referreds to this Bench:- "Whether the offence Against Property (Enforcement of Hadood)Ordinance, 1979 has over riding effect as to completely oust the jurisdiction of a forum created under Ordinance-II of 1968."
4. Mr. Iftikhar Mohammad, learned counsel for the petitoner vehemently urged that case against respondents was registered under offences covered by Pakistan Penal Code, Triable under the provisions of Ordinance II of 1968 at the option of prosecution as held in certain cases, i) Haji Abdul Wali vs. Mohammad Ramzan.(Criminal Bail Application No.98/84 decided on 10.8.1984).ii) Deran Khan vs. The State (PLD 1985 Qta-188).iii) Mohammad Noor alias Noorak vs. Member Board of Revenue Baluchistan (PLD 1985 SC P-335).
According to him evide nee for imposing "Hadd" was not available therefore, offence committed by Private respondents was exclusively triable within the purview of Ordinance II of 1968 and not under "Hadood Ordinance."
5. Whereas Mr. Raja MAfsar, learned counsel for private respondents emphatically urged that provisions of 'Hadood Ordinance' have overriding effect, over all other Laws. He further contended that Central Law would supiercede provincial legislation on the same subject. To support his submissions observations in case Mohammad Hanis and another vs. Assistant Commissioner with Powers of Deputy Commissioner Kalat and others (1986 P.Cr. L.J. P-292) has been relied. According to him no other court has jurisdiction to deal with matters concerning thefts of any nature.
6. We have also heard Mr. Mohammad Moquim Ansari Mr. Basharatullah, Mr. Azizullah Memon And Mr. Mohammad Aslam Chishti, Advocates as amicus curie on the question under consideration of this Bench.
7. Mr. Mohammad Moquim Ansari and Mohammad Aslam Chishti, Advocates contended that "Hadood Ordinance" has supervening position, and non-obstenle clause completely excludes application of any other law in respect of offences covered by said statute. According to them thefts of all kinds were 'riable only under "Hadood Ordinance", therefore, jurisdiction of forums created under Ordinance- II of 1968 of any other law, would be barred in respect of said offence.
8. Mr. Basharatullah Advocate canvassed that "Hadood Ordinance" over rides all other laws only in respect of punishments ordained by Holy Quran where HADD is, either imposed or can be enforced.
He supplemented his arguments by referring to second proviso of section 24 of "Hadood Ordinance which clearly suggests that merely offence covered by sections 9 and 17 were exclusively triable by the forum created under this law. He expressed that offences punishable byTazir' therefore could be deaIt with and tried only by ordinary courts under the existing laws in respective areas. Mr. Azizullah Memon Advocate while supporting arguments addressed by Mr. Basharatullah Advocate, added, that jurisdiction of Special Local Laws is deemed to have been retained in respect of Pakistan Penal Code Offences. To support his submission, reliance was placed on the obsersvation in case State Vs. Syed Mir Ahmed Shah and others (P.L.D.1970= Quetta 49).
9. Mr.Muhammad Yakoob Khan Eusufzai, learned Advocate General referring to section 3 and preamble of "Hadood Ordinance " took the stand that these enactments have over riding effect against all existing laws, therefore, according to him cases covered by "Hadood Ordinance" and thefts of all nature were exclusively triable under the provisions of Ordinance VI of 1979 and to that extent provisions of Ordinance II of 1968 were completely in operative.
10. We have considered the arguments advanced by learned counsel for parties and learned amicus curiae. In order to effectively determine scope and extent of applicability of Ordinance VI of 1979 reference to some of its provisions is necessary.
Pre-amble: Whereas it is necessary to modify the existing law relating to certain offences against property, so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Quran and Sunnah; And whereas the President is satisfied that circumstances existed which render it necessary to take immediate action; Now therefore,................................
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2 ....................................
3 Ordinance to override other laws. The Provisions of the Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.
4 Two kinds of theft. Theft may be either theft liable to hadd or theft liable to Tazir.
5 Theft liable to Hadd. Whoever, being an aduIt surruptitionsly commits, from any hirz, theft of property of the value of the Nasab or more, not being stolen property, knowing that it is or is likely to be of the value of the nisab or more, is subject to the provisions of the Ordinance, said to commit theft liable to Hadd.
Explanation.............. 1.
Explanation.............. 2.
6. Nisab.....
7. Proof of theft liable to hadd. The proof of theft to hadd shall be in one of the following forms namely:
(a) the accused pleads guiIty of the commission of theft liable to hadd; and
(b) at least two Muslim aduIt male witnesses, other than the victim of theft about whom the Court is satisfied, having regard to the requirements of Tazkiya Al-Shahood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eye-witnesses of the occurrence; Provided that, if the accused is a non-Muslim the eye witnesses may be non-Muslim.
Provided further that the statement of the victim of the theft or the person authorized by him shall be recorded before the statements of the eye-witnesses are recorded.
Explanation.............
8. Commission of theft liable to Hadd by more than one person........................
9. Punishment for theft liable to hadd. (1) whoever commits theft liable to Hadd for the first time shall be punished with amputation of his right hand from the joint of the wrist.
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10. Cases in which hadd shall not be imposed, Hadd shall not be imposed in the following cases namely:
(a) When the offcncer and victim of the theft are related to each otheras-
(i) .................................
(ii) ............................
(iii)....................
(iv) ...............
(v) ...............
(b) .....
(c) .....
(d) -...
(e) .....
(f)..........
(g) .................
(h) .................
11. Ceases in which Hadd shall not be enforced............
(1).. ...................
(a)--...........................
(b) ........
(c) ........
(2)............ , (3)...................
12. Return of stclcn property..........
13. Theft liable to Tazir-whocver cemmits theft which is not liable to hadd, or for which proof in either of the forums mentioned in Section 7 is not available or for which hadd may not be imposed or enforced under the Ordinance, shall be liable to Tazir.
14. Punishment for theft liable to Tazir-Whoever commits theft liable to Tazir shall be awarded the punishment provided for the offence of theft in the Pakistan Penal Code.
15. Definition of Hareabah.-When any one or more whether equipped with arm or not make show of force for purpose of taking away property of another and attacks him in feat of death or hurt such person or persons and said to commit harrabah.
16. Proof of Haraabah. The provisions of Section 7 shall appl/mutatis mutandis' for the proof ofharaabah.'
17. Punishment of Haraabah. (1).......
2)...............
3) ....................
4).........................
5).........................
6) ......................
18. Cases in which punishment of amputation or death for haraabah shall not be imposed or enforced...........
19. Return of property taken away during haraabah...........
20. Punishment for haraabah liable to ta/ir................
21. Punishment forressagiri or patharidari...........
(1)...........
(2)...........
22. Punishment for attempts to commit offence punishable by this Ordinance........
23. Application of certain provisions of Pakistan Penal Code.
(1)...........
(2)...........
24. Application of Code of Criminal Procedure, (i) The provisions of the Code of Criminal Procedure 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 Sessions and not by a Magistrate authorized under section 30 of the said Code and an appeal from an order any other provision of this Ordinance which imposes a sentence of imprisonment for a term exceeding two years) shall lie to the Federal Shariat Court; Provided..........
2)...............
3) ...............
4) ................
25. Presiding Officer of Court to be a Muslim............
Provided..........
(26. Saving......
11. Careful examination of various provisions of 'Offence Against Property (Enforcement of Hadood Ordinance VI of 1979' would show that punishment prescribed by injunctions of Islam as set out in the Holy Qur'an and Sunnah, undoubtedly have suppermacy, thus overriding all other laws.
However for better appreciation of various types of cases arising from variety of offences, concerning Hadood laws can 1 : conveniently divided in following five (5) cate gories:-
(i) Where punishment of 'theft or Harrabah' is liable to 'Hadd'.
(ii) Where offences have been specifically created by "Hadood Ordinance"such a "Rasagiri"etc.
(iii) Where "Hadd" cannot be "imposed" or "enforced." for "Tazir" and offence becomes liable.
(iv) Where offence is punishable with'Tazir", and corresponding provisions of Pakistan Penal Code arc intact.
(v) Where offence are punishable under "Tazir" but corresponding provisions of Pakistan Penal Code have been repealed.
12. It may be seen that non-obstante clause contained in Section 3 of Hadood Ordinance, unmistakeably indicates that offence for which "Hadd" can be imposed or enforced or such other laws which have been specifically created, by "Hadood Ordinance" shall be exclusively triable under the provisions of said enactment, by the court of Sessions as per second provis of section 24.
13. Similarly in the matter where though 'theft' or 'Harrabah' is deemed to have been committed but on account of circumstances envisaged in section (10) or (11) of Hadood Ordinance II of 1979 'Hadd' cannot be enforced or imposed would also be triable by court specified under this ordinance is reflected from clause (2) and (3) of section II of the said ordinance.
14. Now effect of rider clause needs determination in respect of remaining two categories i.e. Where offences is punishable for Tazir whether corresponding provision of Pakistan Penal Code are intact or have been repealed. Evidently 'Hadood Ordinance', does not specify any forum for adjudicating upon matters covered by 'theft' or 'Harrabah' liable to Tazir. In the circumstances obviously such matter would be triable by normal Criminal Court having jurisdiction in the respective areas.
Factually this legal situation, has not been controverted by any of the counsel during arguments in this case. Nevertheless learned Advocate General, Mr. Raja M. Afsar, Mr. Mohammad Moquin Ansari, and Mr. Mohammad Aslam Chishti Advocates maintained that in the matters pertaining to trial for 'theft' or'Harrabah' liable to Tazir provisions of Ordinance-II. It maybe seen that though normal criminal courts should be competent to try offence covered by 'Tazir' yet difficuIty necessarily arises when in certain cases on account of promulgation of Ordinance-II of 1968, jurisdiction of ordinary Criminal Courts, trial relating to scheduled offence? Covered by Pakistan Penal Code is completely barred. Principal of law in this behalf have been exhaustively discussed in an illuminating judgement of single bench of erst-while High Court of West Pakistan in case reported as P.L.D. 1970 Quetta (49) State vs. Syed Mir Ahmed Shah and others. It would be profitable to reporduce below relevant observations at pages-69.
Page-69.
15. The two lawas are inconsistent qua a part of the subject matter and also qua the locality specified in the ordinance an inconsistency qua subject matter is that all effences which are punishable under the Pakistan Penal Code, excepting of course those specified in the Conciliation Courts Ordinance are exclusively triable under the Ordinance; while some of them are also triable under the Act. The mode and forum of trial in respect of all the offences if different in the two laws.
The other aspect of inconsistency is that the ordinance applies to only the areas specified therein while the Act applies to whole of Pakistan. All the inconsistences if considered together lead to the conclusion that the offences, which are punishable under Pakistan Penal Code, with the exception of those specified in the concliation courts ordinance are exclusively triable under the ordinance by only within the areas specified therein which include Quetta and to that extent, the Act has no application on the other hand the offences under the Prevention of Corruption Act, which are included in the subject matter of the Ordinance will continue to be exculusively triable under the Act, to the exclusion of the Ordinance even in the localities specified therein including Quetta. The resuIt is that the Ordinance will apply in the areas specified therein including Quetta, only to the extent of inconsistency mentioned above, to the exclusion of the Act. In other respects i.e. Where the area not inconsistent the Act will continue to apply in that local area. That is in that area the offences punishable under the Prevention of Corruption Act will continue to be deaIt with and tried under the Act. While the offence punishebale under the Pakistan Penal Code (including those under section 409/420/471 thereof) of course subject to the above mentioned exceptions as to Conciliation Courts Ordinance, 1961, will have to be deaIt with and tried under the Ordinance."
16. Therefore applying aforequoeted principle it is quite evident that special Local laws continue to hold the field for regulating offences covered by Pakistan Penal Code in the area where same is applicable, distinction however has to be drawn in respect of cases where Provision of Pakistan Penal Code are intact and in cases same have been repealed by Hadood laws. In this behalf it may be seen that by virtue of Section 19(3) (a) of the Offence of Zina (Enforcement of Hadood)
Ordinance VII of 1979' corresponding offences covered by Pakistan Penal Code have been expressly repealed. Whereas in the Hadood Ordinance VI of 1979 relevant provision of Pakistan Penal Code are still intact. Evidently preamble of both these enactment suggests comon purpose for enforcement of these laws. Therefore by comparision legislative intent for retaining provison of Pakistan Penal Code in Ordinance VI of 1979 is suggestive that cases which do not full witin the exclusive ambit of this Ordinance VI of 1979 could be drawn up and tried by normal courts.
17. We are therefore, inclined to abserve that cases pertaining to offences where provisions of Pakistan Penal Code have been repealed obviously would not fall within the purview of scheduled offences conemplated by Ordinance II of 1968 therefore the same shall be triable by ordinary criminal courts. However where provisions of Pakistan Penal Code are intact as in Hadood Ordinance VI of 1979, prosecution in respect of matters which do not fall in any of the aforementioned categories action against the accused in such cases can be initiated under the provisions of Pakistan Penal Code, and prosecution has got choice to submit challan for trial within the purview of Ordinance II of 1968, In this view observations in case Mohammad Noor alias Norak Vs. Member Board of Revenue Baluchistan reported in PLD 1985 S.6. P-335 are instructive and relevant portion is reproduced below: - "It appears that the prosecution was not sanguine that it could in view of the above strict provisions for proof of theft prove a case of Harrabah under the Hadood Ordinance and has, therefore, not taken any step for proceeding with the challan submitted under section 17 of Ordinance-VI of 1979 before the Additional Sessions Judge. In the meanwhile the petitioner has been tried under section 302 PPC under the provisions of the Criminal Law (Special Provisions) Ordinance II of 1968 convicted and sentenced. This conviction and sentence is not perse void and coram nonjudice. It is only where some order is passed under the provisions of Ordinance VI of 1979 then notwithstanding which with anything contained in any other law for the time being in force, the said order would prevail and supersede the order passed under the other law. In this case there arc no two inconsistent orders passed under different laws. Hence section 3 of the Ordinance VI of 1979 is not attracted and the occasion of considering its effect on an order passed under any other law does not arise."
For the foregoing reasons the reference is answered in the above terms. Consequently no interference is called for in the impugned order.