' MUHMMAD ISHAQ KHAN, J.-- On 16-7-1984 at 1-30 hours Razi Shah son of Mian Gui reported to the police in Civil Hospital, Swabi that he along with his wife Mst. Saeeda and daughters Shagufta Naz and Tara Naz was sleeping in his house situated at village Kuladand. At 12-20 hours a shot was fired with which he was hit. About motive he stated that he had no previous enmity with anyone and, therefore, does not charge anyone for the time being for firing at him. This report was recorded in the shape of a `Murasila' Exh.P.A./1 and was sent to police station for registration of the case. Razi Shah injured thereafter succumbed to his injuries and during investigation it transpired that Sadiq Shah, brother of Razi Shah had illicit liaison with the wife of Razi Shah, namely, Mst. Saeeda, and both Sadiq Shah and Mst. Saeeda in furtherance of their common intention had caused the murder of Razi Shah by firing at him with pistol. Both the accused were arrested and during investigation they made confessional statements admitting the factum of illicit relation, Zina and the murder of the deceased. The learned Additional Sessions Judge, Swabi vide judgment dated 3-21988 convicted both the accused under sections 302/34, P.P.C. And sentenced them to imprisonment for life each. He also convicted both the accused under Article 10 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced each one of them to ten years' R.I. And the whipping numbering thirty stripes and a fine of Rs,1,000 or in default of payment of fine to suffer further two months' R.I. Benefit of section 382(B), Cr.P.C. Was also extended to both the accused.
2. Both the convicts have preferred the present appeal from jail against their conviction and sentences.
3. The Law Officer appearing for the State in the first instance raised anl objection regarding the jurisdiction of this Court to hear the appeal. He referred to section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which runs as under:- "20. Application of Code of Criminal Procedure (Act V of 1898), and amendment.-- (1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereafter in this section referred to as the Code, 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 competen to try that offence and award punishment, therefor, be convicted and punished for that offence: ' Provided further that an offence punishable under this Ordinance shall I 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 of the Court of Session shall lie to the Federal Shariat Court."
' In support of his arguments he referred to a case reported in PLD 1983 Federal Shariat Court 33, which contains the following dictum: "--Ss. 10(3) & 20 and Penal Code (XLV of 1860), S.302--Zina-bil-Jabr 1 with murder--Interpretation of statutes--Conflict of decisions-Jurisdiction--Two different Courts, one on conviction under one statute and another on conviction under another statute, if held to havel jurisdiction to appreciate same evidence, inconvenient, rather! Anomalous, results may accrue, giving rise to possibility of arriving at different conclusions--Appeals against acquittal on charges of offences! Under S.10(3) of Ordinance and S.302, P.P.C., held, competent before! Federal Shariat Court and mere fact of an appeal being filed before High Court also cannot take away jurisdiction of Federal Shariat Court."
' He further referred to an authority reported as PLD 1984 Federal Shariat Court I 3, wherein the authority referred to above has also been adopted by the Federal Shariat Court. Citation (a) could be reproduced with advantage and the same runs as under:- "(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--S.18 read with Ss.19 & 20(1)-- Penal Code (XLV of 1860), Ss.302/34 & 449--Appeal--Sessions Judge competent to try accused under S.18 of Ordinance as well as under Ss.302/34 & 449, P.P.C.--Order of conviction passed by Sessions Judge under Ordinance as well as Penal Code is order under S.20(1) of Ordinance and appeal competent before. Federal Shariat Court having exclusive jurisdiction under Ordinance."
4. Keeping in view the abovecited legal position we hold that in such like cases Federal Shariat Court has the exclusive jurisdiction to hear appeals against the orders of the Sessions Court. Faced with this situation we are constrained to observe that the appellants should approach the Federal Shariat Court. The office is directed to return the memorandum of appeal to the appellants through jail authorities.