' SAAD SAOOD JAN, J.--This is a petition for special leave to appeal from the order dated 21-3-1989 of the Lahore High Court dismissing the revision petition of the petitioner from the order of the Additional Sessions Judge, Lahore.
2. The petitioners are facing trial in the Court of the Additional Sessions Judge on charges under sections 302, 307 and 379, read with section 34, of the Pakistan Penal Code on the allegations that on 30-12-1983 at 4-45 p.m. They killed Khadim Hussain and made murderous assault upon his wife and daughters and, while leaving the scene of occurrence took away his revolver. The entire evidence has been recorded and the proceedings are now at the arguments stage.
3. During the course of arguments the petitioners filed an application before the trial Court for the amendment of the charge under section 379. Their case was that after the enforcement of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, it was not permissible to frame a charge under section 379 but that it should have been drafted under section 13 of the said Ordinance. This application was rejected by the learned trial Court with the observation:-- "Record reveals that the charge under section 379, P.P.C. Was framed in the case against the accused persons on 16-2-1986 alongwith the charges under section 302/307/34, P.P.C. Therefore, it has been wrongly mentioned in the application that the charge was framed under section 380, P.P.C., which has been filed 2-1/2 years after the framing of the charges against the accused persons.
' Learned D.DA. Contended, during the course of his arguments that offence under section 379, P.P.C. Has not been repealed by way of promulgation of the Ordinance. Prima facie, the case against the accused persons in respect of the theft does not fulfil the provisions of 'NISAB' or provisions of section 7 of the Ordinance, 1979, as there are no two male witnesses of this theft, other than the victim. Learned DDA has also contended that the only male witness of the theft has been given up.
' In view of the above discussion, the contention of the learned counsel for the accused that charge under section 379, P.P.C. Against the accused is defective, is absolutely incorrect. Therefore, I find no justification to alter the charge and also find no substance in the application, which is hereby dismissed."
4. The petitioner challenged the correctness of the order of the learned trial Court in revision before the High Court. A learned Single Judge examined the legal position at some length and then dismissed the revision petition as without merits. The petitioner seeks leave to appeal from this Court.
5. In support of this petition it is contended that the learned Single Judge as well as the learned trial Court were in error in holding that even after the enforcement of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 it was permissible to a Court to frame a charge under section 379. In support of this contention reliance has been placed on section 3 of the Ordinance which states that the provisions of the Ordinance would have effect notwithstanding anything contained in any other law for the time being in force. Reliance has also been placed on a number of decided cases reported as Muhammad Abbas v. The State 1984 SCM R 129, Muhammad Hanif v.
Assistant Commissioner 1986 P.Cr L J 292 and Khushi Muhammad v. Abdul Hafeez 1987 P Cr. L J 615.
It is further contended that if the charge is framed under section 13 of the Ordinance and the petitioners were convicted of the said offence and sentenced to a period of imprisonment exceeding two years, the forum of the appeal would be the Federal Shariat Court and not the High Court. Thus, the framing of the charge under the proper provision of law would have material bearing in determining the appellate forum.
6. After hearing the learned counsel and perusing the precedents cited above, we do not find that this is a fit case where leave to appeal should be granted. It is not in dispute that the learned Additional Sessions Judge is competent to take cognizance of offences both under the Penal Code and the Hadood Ordinance. It is conceded that he is a Muslim. The trial has not yet completed.
Even though he has rejected the application of the petitioners to amend the charge, the proceedings are still at the argument stage. It is open to him at any time before announcement of the judgment to amend the charge by taking advantage of the provisions of sections 227 and 228 of the Criminal Procedure Code. As regards the controversy with regard to the forum of the appeal it would only become relevant if the learned Sessions Judge decides to convict the petitioners for the offence of theft and sentences them to a term of imprisonemt exceeding two yeaRs, The authorities cited by the learned counsel refer either to the jurisdiction of the trial Courts or the forum where the appeal would lie after conviction under the Hadood Ordinance. For the reasons already stated neither of these two questions is relevant at this stage. On the other hand, we cannot avoid the impression that the prayer now being made by the petitioners for amendment of the charge is intended to prolong the proceedings. In the circumstances we are not prepared to intervene in the matter. The petition is dismissed.