' MIR HAZAR KHAN KHOSO, J.--Relevant facts, briefly stated are that complainant Muhammad Aslam on 26-6-1987 lodged complaint with Naib-Tehsildar Dasht for offences under section 380/382/385/386/ 146/148/149 of the Pakistan Penal Code alleging that private respondents alongwith others, forming unlawful assembly armed with deadly weapons came to their lands and forcibly 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 provisions of Criminal Law (Special Previsions) 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 aggrieved from aforesaid order of release, petitioner on 13-9- 1987 submitted present petition praying for cancellation of bail granted to respondents 2 to 9.
2. Main contention raised on behalf 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 order 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 Hudood) Ordinance (VI of 1979)"
(hereinafter referred to as "Hudood Ordinance") which explicitly bars jurisdiction of all the Courts including forums to adjudicate upon such matters. However, to consider rival contention, following point was referred to this Bench:- "Whether the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 has overriding effect as to completely oust the jurisdiction of a forum created under Ordinance II of 1968."
4. Mr. Iftikhar Muhammad, learned counsel for the petitioner 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, such as:
(i) Haji Abdul Wali v. Muhammad Ramzan (Criminal Bail Application No,98/84, decided on 10-8- 1984).
(ii) Doran Khan v. The State (PLD 1985 Quetta 188).
(iii) Muhammad Noor alias Noorak v. Member, Board of Revenue, Baluchistan (PLD 1985 SC 335).
' According to him evidence 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 "Hudood Ordinance".
5. Whereas Mr. Raja M. Afsar, learned counsel for private respondents emphatically urged that provisions of 'Hudood Ordinance' have overriding effect over all other Laws. He further contended that Central Law would supersede provincial legislation on the same subject. To support his submissions observations in case Muhammad Hanif and another v. Assistant Commissioner with Powers of Deputy Commissioner Kalat and others (1986 PCr.LJ 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. Muhammad Moquim Ansari, Mr. Basharatullah, Mr. Azizullah Memon and Mr. Mohammad Aslam Chisti, Advocates as amicus curiae on the question under consideration of this Bench.
7. Mr. Muhammad Moquim Ansari and Muhammad Aslam Chishti,Advocates contended that "Hudood Ordinance" has supervening position, and non obstente clause completely excludes application of any other laws in respect of offences covered by said statute. According to them thefts of all kinds were triable only under "Hudood Ordinance", therefore, jurisdiction of forums created under Ordinance II of 1968 or any other law, would be barred in respect of said offence.
8. Mr. Basharatullah, Advocate canvassed that "Hudood Ordinance" overrides all other laws only in respect of punishments ordained by Holy Qur'an where Hadd is either imposed or can be enforced.
He supplemented his arguments by referring to second proviso of section 24 of "Hudood Ordinance" which clearly suggests that merely offences covered by sections 9 and 17 were exclusively triable by the forum created under this law. He expressed that offences punishable by 'Tazir' therefore could be dealt 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 observation in case State v. Syed Mir Ahmed Shah and others (PLD 1970 Quetta 49).
9. Mr. Muhammad Yakoob Khan Yusufzai, learned Advocate-General referring to section 3 and preamble of "Hudood Ordinance" took the stand that those enactments have overriding effect against all existing laws, therefore, according to him cases covered by "Hudood 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 inoperative.
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.
"Preamble: ' 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 Qur'an and Sunnah; ' And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action; ' Now, therefore, ... .
(1)
(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 adult surreptitiously 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 guilty of the commission of theft liable to hadd; and
(b) at least two Muslim adult 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 eyewitnesses 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.
(2) ...
(3) ...
(4) ...
(5)
(6) .
(7) ...
(10) Cases in which Hadd shall not be imposed. Hadd shall not be imposed in the following cases namely:-
(a) When the offender and victim of the theft are related to each other- (b)
(c)
(d)
(e)
(f)
(g)
(h)
(11) Cases in which Hadd shall not be enforced.............................................
(1)
(a) (b). (c)
(2) ...
(3)
(12) Return of stolen property... ...
(13) Theft liable to Tazir. Whoever commits 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 liabl to Tazir.
(14) Punishment for theft liable to Tazir.--Whoever commits theft liable to Tazir shall be awarded the punishment provide for the offence of theft in the Pakistan Penal Code.
(15) Definition of Harabaha.-When any one or more whether equipped with arms or not make show of force for purpose of taking away property of another and attacks him or cause wrongful restraint or put him in fear of death or hurt such person or persons are said to commit Haraabah.
(16) Proof of Haraabah.-- The provisions of Section 7 shal apply 'mutatis mutandis' for the proof of 'harabah'.
(17). Punishment of Haraabah.-- (1)
(2) ... .
(3)
(4) ... .
(5) .
(6) ...
(18) Cases in which punishment of amputation or death fos haraabah shall not be imposed or enforced ...
(19) Return of property taken away during haraabah...................................
(20) Punishment for haraabah liable to tazir...
(21) Punishment for rassagiri 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 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 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 'Offences Against Property (Enforcement of Hudood)
Ordinance (VI of 1979) would show that punishments prescribed by Injunctions of Islam as set out in the Holy Qur'an and Sunnah, undoubtedly have supremacy, thus overriding all other laws.
However, for better appreciation of various types of cases arising from variety of offences, concernings Hudood laws can be conveniently divided in following five (5) categories:-
(i) Where punishment of 'theft or Harabah' is liable to 'Hadd'.
(ii) Where offences have been specifically created by 'Hudood Ordinance' such as "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 are intact.
(v) Where offences 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 Hudood Ordinance, unmistakably indicates that offence for which 'Hadd' can be imposed or enforced or such other laws which have 'been specifically created, by "Hudood Ordinance" shall be exclusively triable under the provisions of said enactment, by the Court of Session as per second proviso of section 24.
13. Similarly in the matters where though 'theft' or 'Harrabah' is deemed to have been committed but on account of circumstances envisaged in section 10 or 11 of Hudood Ordinance VI of 1979 'Hadd' cannot be enforced or imposed same would also be triable by Court specified under this Ordinance as is reflected from clauses (2) and (3) of section 11 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 where corresponding provisions of Pakistan Penal Code are intact or have been repealed. Evidently 'Hudood Ordinance', does not specify any forum for adjudicating upon matters covered by 'theft' or 'Harrabah' liable to Tazir. In the circumstances obviously such matters would be triable by normal Criminal Courts 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. Muhammad Moquim Ansari and Mr. Muhammad Aslam Chishti, Advocates maintained that in the matters pertaining to trial for 'theft' or 'Harabah' liable to Tazir provisions of Ordinance II shall not apply. It may be seen that though normal criminal Courts should be competent to try offence covered by 'Tazir' yet' difficulty necessarily arises when in certain cases on account of promulgation of Ordinance II of 1968, jurisdiction of ordinary Criminal Courts, for trial relating to scheduled offences covered by Pakistan Penal Code is completely barred. Principles of law in this behalf have been exhaustively discussed in an illuminating judgment of single Bench of erstwhile High Court of West Pakistan in case reported as PLD 1970 Quetta 49 State v. Syed Mir Ahmed Shah and others. It would be profitable to reproduce below relevant observations at page 69:-- "11. The two laws 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 offences 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 is 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 inconsistencies 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 Conciliation Courts Ordinance are exclusively triable under the Ordinance but 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 exclusively triable under the Act, to the exclusion of the Ordinance even in the localities specified therein including Quetta. The result 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 they are 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 dealt with and tried under the Act. While the offences punishable 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 dealt with and tried under the Ordinance".
Therefore, applying aforequoted principle it is quite evident that special local laws continue to hold the field for regulating offences covered by Pakistan Penal Code in the areas where same is applicable, distinction however has to be drawn in respect of cases where provisions of Pakistan Penal Code are intact and in cases where same have been repealed by Hudood Laws. In this behalf it may be seen that by virtue of section 19(3)(a) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) corresponding offences covered by Pakistan Penal Code have been expressly repealed. Whereas in D the Hudood Ordinance VI of 1979 relevant provisions of Pakistan Penal Code are still intact. Evidently preamble of both these enactments suggests common purpose for enforcement of these laws. Therefore, by comparison legislative intent for retaining provisions of Pakistan Penal Code in Ordinance VI of 1979 is suggestive that cases which do not fall within the exclusive ambit of this Ordinance VI of 1979, could be drawwn up and tried by normal Courts.
' We are, therefore, inclined to observe that cases pertaining to offences where provisions of Pakistan Penal Code have been repealed obviously would not fall within the purview of scheduled offences contemplated 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 for provisions of Ordinance VI of 1979, shall prevail whereas prosecution action 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 Muhammad Noor alias Norak v. Member, Board of 'Revenue Baluchistan reported in PLD 1985 SC 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 Hudood 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, P.P.C. Under the provisions of the Criminal Law (Special Provisions) Ordinance II of 1968, convicted and sentenced. This conviction and sentence is not per se void and coram non judice. It is only where some order is passed under the provisions of Ordinance VI of 1979 then notwithstanding 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 are 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. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.