' ABDUL RAZZAK A. THAHIM, J.--- The present appeal filed by appellant, Muzammil Shah, is directed against the judgment, dated 2-4-1989 of Additional Sessions Judge-I, Charsadda, whereby the appellant has been convicted under section 377, P.P.C. And sentenced to imprisonment of life and fine of Rs,5,000. In default, he has been directed to suffer S.I. For six months.
2. Briefly the facts of the prosecution case as given in the F.I.R., are that the appellant committed sodomy on a boy, namely Abid Khan son of Najeem Gul on 19-11-1987. The incident was witnessed by Mst. Irshad, the sister of victim Abid Khan. She informed the facts to his father Najeem Gul, who lodged report on the same day at 12-20 hours. The case was registered under sections 377/511, P.P.C. And under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance). The appellant was sent up for trial for the same offence on 10-12-1987 and finally he has been convicted as stated above.
3. At the outset it was pointed out that provisions of the said Ordinance do not attract to the present case as appellant was convicted under section 377, P.P.C., therefore, appeal before the Federal Shariat Court is not competent. On this, we heard Mr. Haji Bashir Ahmad, learned counsel for the appellant and Mir Rehman Khan Khalil, Assistant Advocate-General N.-W.F.P. At length. Both the learned counsel are of the view that the Federal Shariat Court has no jurisdiction to entertain this appeal.
4. The case was registered under sections 377 and 511, P.P.C. And under section 12 of the said Ordinance and challan was submitted for the offences, punishable under above sections. The charge against the appellant was only framed under section 377, P.P.C. On 26-5-1988 to which appellant pleaded not guilty. The case proceeded and evidence was recorded. Finally the appellant has been convicted under section 377, P.P.C. We have only taken up the point of jurisdiction in the circumstances of the case stated above. From the facts as given in the first information report, there is nothing to show that victim, Abid Khan, was kidnapped or abducted by any person. The only evidence against the appellant is that he was found committing sodomy on Abid Khan and the offence has been witnessed by Mst. Irshad, his sister. Therefore, the learned Additional Sessions Judge has rightly framed the charge under P.P.C., of course there is provision under section 20 of the said Ordinance whereby if any offender has committed different offences and is jointly tried for offences under this Ordinance, he may if the Court is competent to try that offence award punishment also in different offences. Thereby appeal is competent before Federal Shariat Court, but circumstances of the present case are different as learned Sessions Judge has not framed the charge under any provision of the said Ordinance. The procedure for the Sessions trial is laid down under Chapter XXII-A of the Cr.P.C., and the relevant section 265-D, Cr.P.C., reads as under:- "When charge is to be framed.-- If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused."
5. The learned Sessions Judge according to law has to frame the charge after pursuing the necessary documents as required under section 265-D, Cr.P.C. He after applying his mind properly has framed the charge under section 377/511, P.P.C., only. There are some authorities where Federal Shariat Court considered this point of jurisdiction. The first case is of Fiaz Hussain and others v.
State PLD 1987 Pesh. 116 where accused was tried under section 377, P.P.C. And was convicted. The appeal was filed and disposed of by High Court. In case of Zulfiqar v. State PLD 1985 FSC 404 the accused was charged under section 12 of the said Ordinance and section 377, P.P.C. This Court found that the charge against the accused was not substantiated under section 12 of the said Ordinance, but he was convicted under section 377, P.P.C. As provisions of section 20 of the said Ordinance do attract and Federal Shariat Court assumed the jurisdiction. In the same manner in case of Muhammad Naseer v. State reported in PLD 1988 FSC 58 the accused was charged for murder as well as Zina, therefore, on both the accounts the appeal was disposed of by the Federal Sharia Court though this Court has no jurisdiction for the offence punishable under section 302, P.P.C. Therefore, the legal position is very clear when any of the accused is charged under the provisions of the said Ordinance and any other law, the Federal Shariat Court has the jurisdiction.
Not only this, but under Article 203-DD of the Constitution of the Islamic Republic of Pakistan, 1973 the entire provisional jurisdiction is vested with the Federal Shariat Court in Hudood cases, but the facts and the circumstances of the present case are distinguishable as neither the charge has been framed under section 12 nor any evidence has come on record for kidnapping and abduction of Abid Khan, so that this Court may exercise the jurisdiction, but there is only evidence of sodomy against the appellant and we are not inclined to enter into the merits of the case, but only for the reasons stated above have come to the conclusion that appeal against the conviction is competent in Peshawar High Court. We, therefore, order that documents be returned to the appellant to enable him to present appeal in Peshawar High Court. It was pointed out that appeal was presented before the High Court Peshawar, but it was returned by the Registrar under the objections and was never placed before the Court. The learned Assistant Advocate-General has also conceded to this legal position and submitted that appeal now be filed before High Court.
6. The short order was passed on 31-10-1989 and these are the detailed reasons for the disposal of the appeal.