' This petition under section 493 of the Cr.P.C. Is directed against an order of the learned Additional Sessions Judge, Lahore dated 30-1-1989 and has arisen in the following circumstances.
2. The petitioner, Muhammad Afzal, and two others are accused of the murder of Khadim Hussain, an A.S.I. In the police department. There was a dispute over a plot of land between the deceased and the accused persons; the prosecution case is that at Aserwela on 30-12-1983, Muhammad Afzal, petitioner grappled with the deceased; the complainant, Mst. Irshad Begum (she is the widow of the deceased), and her two Oughters in order to save the deceased hurled some Roras at Muhammad Afzal, petitioner. In the meantime Arshad, accused, fired at the deceased hitting him in his back. Muhammad Akram, accused, also fired hitting Mst. Naseeb Akhtar, a daughter of the deceased. Muhammad Afzal petitioner, then pulled a knife and hit Suraya Akhtar, another daughter of the deceased. Arshad, accused, hit the complainant with the butt of his gun and Muhammad Akram, accused, gave beating to Naseeb Akhtar. The accused persons then left the spot but while going away they took the official revolver of the deceased with them.
3. A formal charge under sections 302 and 307 read with section 34 of the P.P.C. And 379 of the P.P.C. Was framed on 16-2-1986. On 23-7-1988, an application was made by the petitioner saying that "after the promulgation of Hudood laws the charge could only be framed for the alleged offence under provisions of Offences Against Property (Enforcement of Hudood) .Ordinance, VI of 1979; no charge under section 380, P.P.C. Could be framed; consequently this Hon'ble Court after framing the charge under the Hudood Ordinance, 1979, would have held the trial as Court subordinate to Federal Shariat Court, whereas, while holding the instant trial, this Hon'ble Court has all along acted as a Court subordinate to the Lahore High, Lahore, which is against law". The learned Additional Sessions Judge dismissed the application by order dated 30-1-1989; in so doing he observed that the charge was under section 379 and not under section 380 of the P.P.C. And that as there were not two male witnesses to depose to the theft, the offence was not punishable with Hadd. In his view section 379 of the P.P.C. Had not been repealed and there was, therefore, no justification to alter the charge.
4. Learned counsel for the petitioner referred to section 4 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be called the Ordinance), which provides that "theft may be either theft liable to 'hadd' or theft liable to 'Tazir'; Section 13 thereof which provides that whoever commits theft" which is not liable to 'hadd' or for which proof in either of the forms mentioned in section 7 is not available, or for which 'hadd' may not be imposed or enforced under this Ordinance, shall be liable to Tazir" and section 14 which enacts that "whoever commits theft liable to 'Tazir' shall be awarded the punishment provided for the offence of theft in the Pakistan Penal Code". He also called my attention to Section 24 of the Ordinance which says that the provisions of the Code of Criminal Procedure shall apply, mutatis mutandis, "in respect of cases under this Ordinance ", and in particular to the second proviso to subsection (1), which reads: "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 or from an order under 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."
' His contention was that though the punishment for theft liable'to Tazir is the punishment provided in the Pakistan Penal Code, yet the accused person must be charged under section 14 of the Ordinance read with the relevant provision of the Pakistan Penal Code. In his view, after the enforcement of the Ordinance, all offences against property are offences under the Ordinance and, therefore, the mention of section 14 in the charge is necessary. According to him, an accused person has a right to know under what law he is being charged and tried and he cannot be told that the forum of appeal will be determined according as the sentence is for a term less than two years or exceeding two years.
5. The object of the Ordinance, according to its preamble was 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 Qur'an and Sunnah". With a view to so modifying the existing law, the scheme in enacting the Ordinance adopted by the law-maker was to create certain offences, provide for the mode of proof of those offences and then to provide punishment for them. Thus, after saying in section 4 that theft may be either theft liable to Hadd or theft liable to Tazir, section 5 defines theft liable to Hadd, section 7 provides the mode of proof of theft liable to Hadd and section 9 provides punishment for such theft. Similarly, section 15 defines Harabah, section 16 provides for the mode of its proof and section 17 provides for its punishment. By section 21, the Ordinance makes provision for the offences of Rassagiri or Patharidari.
6. It appears, therefore, that the Ordinance was not intended to be a complete Code in itself in regard to offences against property. Any such impression is immediately dissipated by a reading of the as a whole. And as it was not intended to be a complete Code, it did not repeal such sections of the Pakistan Penal Code as sections 379,, 380, 392, 395 and 397. For these offences, it expressly says, by its sections 14 and 20, that the punishment awardable shall be the punishment provided by the Pakistan Penal Code. It is plain, therefore, that unlike sections 9, 17 and 21 of the Ordinance, section 14 does not create any new offence. All that that section does is to say, by way of abundant caution, that other offences of theft liable to Tazir shall continue to be dealt with and punished under the Pakistan Penal Code, It Is also equally clear that in so saying the object of the law-maker was to remove all doubts that sections 379, 380 etc. Of the P.P.C. Had not been expressly or by implication repealed.
7. The question, therefore, is whether the theft alleged to have been committed by the petitioner is, to use the words of section 24, subsection (1) of the Ordinance, a theft "under this Ordinance" and the order which the learned Additional Sessions Judge will make in respect of that offence will be an order "under any provision of this Ordinance"
8. There is no question that the offences under sections 9 and 17 of the Ordinance are offences under the Ordinance; there is also no doubt that the offence under section 21 of the Ordinance is also an offence under the Ordinance and that an order under that section, sentencing a person to imprisonment for a term exceeding two years, is appealable to the Federal Shariat Court. But can the offences under sections 379 and 380 etc. Of the P.P.C. Be said to be offences under the Ordinance merely because section 14 says that theft liable to Tazir is liable to punishment for the offence of theft as provided in the Pakistan Penal Code? The answer is, in my view, in the negative.
The Ordinance merely modified the existing law relating to certain offences against property, by creating certain offences and providing punishment for them; as to the remaining offences against property, the existing law remained untouched. As observed above, section 14 was enacted as a matter of abundant caution for even if it had not been enacted, the offences of theft liable to Tazir would have continued to be punishable under the Pakistan Penal Code. In my view therefore, section 14 of the Ordinance did not, and was not intended to affect the provisions of the Pakistan Penal Code as to the Offences of theft not provided for by the Ordinance and, therefore, the offences under sections 379, 380 etc. Of the P.P.C. Cannot be said to 'be offences "under this Ordinance" nor can an order made under these provisions be characterised as order "under any other, provision of this Ordinance". To put it differently, while there can be' no doubt that the offences which are the creation of the Ordinance are offences under the Ordinance, offences against sections. 379, 380 etc. Of the P.P.C. Are not such offences.
9. The contention of the petitioner's counsel, if given effect to, will necessarily produce the result of ousting the established jurisdiction of the High Court not only to hear appeals against conviction under any of the section of the Pakistan Penal Code, if there is also conviction for theft, but will also exclude the High Court's 'jurisdiction to hear murder references in such cases. Learned counsel for the petitioner referred to section 3 of the Ordinance to contend that whatever the result, the provisions of the Ordinance have an overriding effect.
10. I agree that if the provisions of the Ordinance were clear and had clearly provided for the ouster then it must have an overriding effect. But I should think that the above examination of its provisions makes it demonstrably plain that the ouster is, to use the words in Secretary of State v.
Mask and Co. Which was cited with appruval in aramat All v. Muhammad Younis L D 1963 SC 191), neither "explicitly expressed" nor "clearly implied". Ft has long been well-established that there is a strong presumption that the jurisdiction of a superior Court can only be taken away. By express words (See Muhammad Ismail v. State PLD 1969 SC 241); indeed, there is a strong leaning against any such exclusion. See Ch. Zahoor Elahi v. State PLD 1977 SC 273, 280). It is also a well-settled principle that a provision ousting the ordinary jurisdiction of the Courts must be strictly construed, "meaning, I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the Court". (Per Lord Reid in Anisminic case 1969) 2 A A.C. 147 HL at 170); also see Fazal-ur-Qadar v. Muhammad Abdul Haq PLD 1963' SC 486, at 524. Far from excluding, the ordinary aqd established jurisdiction of the High Court, expressly or by necessary implication, section 24 of the Ordinance seems to manifest an intention of least interference with such jurisdiction; this intention is evinced by providing that even in the case of offences "under any other provision of this Ordinance", an appeal to the Federal Shariat Court shall lie only from orders which impose a sentence of imprisonment for a term exceeding two years; in other cases "under this Ordinance", the forum of appeal remains the same as under the Code of Criminal Procedure. Though this may not be a decisive factor, yet, it appears that if the petitioner's contention is accepted, one consequence will be that in all cases under sections 379, .380 etc. Of the P.P.C. Which are triable by a Magistrate of first class in which the sentence is the sentence of imprisonment exceeding two years, appeal will lie to the Federal Shariat Court. This result, I , could not have been intended by the law-maker in enacting the Ordinance, whose object, as has seen above,' was to create some special offences to be tried by the Courts named therein, allowing the law as regards the other offences as it was.
11. It remains to be seen, whether binding authority compels a different conclusion. Learned counsel for the petitioner referred to Ghulam Abbas v. The State 1988 PCr.LJ 275, in which the Court of Session had convicted a person under section 302 of the P.P.C. And sentenced him to. Death as also under section 14 read with section 380 of the P.P.C. And sentenced him to three years' R.I. And a learned Division Bench of this Court was not inclined to entertain the appeal as also the murder reference, "for lack of jurisdiction", for the appellant was competently charged under section 14 of the Offences Against Property (Enforcement of Hudood)'Ordinance, 1979, and the Court of Session was competent to award the sentence that it did and the appeal lay 'to the Federal Shariat Court; Muhammad Hanif v. Assistant Commissioner 1986 PCr.LJ 292 (Quetta), where it was held that the offence of theft liable to Hadd or Tazir is exclusively triable by the provisions of Offences Against Property (Enforcement of Hudood) Ordinance,, 1979, and that on that score, the taking of cognizance of that offence by -a Magistrate was not warranted by law; and Khushi Muhammad v.
Abdul Hafeez (1987 PCr.LJ 615), where it was held that "on promulgation of enforcement of Hudood Ordinance, 1979", the jurisdiction to entertain the complaints in respect of an offence under section 380 of the P.P.C. "did not vest in the Resident Magistrate in question". 'If I may say-so with great respect, in none of the precedent cases was the question whether an offence under section 379 or 380 of the P.P.C. Is an offence under the Ordinance or an order of conviction under section 379 or 380 of the 13.P. C. Is an order "under any other provision of this Ordinance" raised and considered. In Ghulam Abbas v. The State, the learned Division Bench of this Court had declined to entertain the appeal basing itself upon Muhammad Abbas and v. The State (1984 SCMR 129). In Muhammad Abbas v. The Slate (1984 SCMR 129), the petitioners before the Supreme Court had been tried by the Court of Session and convicted under section 302 of the P.P.C. As also section 18 read with section 14 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979, and what distinguishes, this cased from that case is the important fact that by section 20 of that Ordinance, all offences punishable under that are triable by the Court of Session and "an appeal from an order of the Court of Session shall lie to the Federal Shariat Court". This, as has been seen above, is not so under section 24 of the Ordinance; under that section, for an D appeal to lie to the Federal Shariat Court, the offence must bp an offence under section 9 or section 17 or "under any other provision of this Ordinance ".
11. For these reasons, I do not think that there is any merit in the revision petition. It is dismissed.