IFTIKHAR MUHAMMAD CHAUDHARY, J.--- According to prosecution on 25th January, 1994 at about 6:00 P.M. Appellants Jamal Khan son of Mengal Khan, Boondal Khan son of Allah Yar Khan have stolen 30 sheep and goats of Haji Pir Dad from near Koh-e-Murdar and later-on at about 9:00 P.M.
They both alongwith other unknown 5/6 persons being armed with dandas attacked on Haji Pir Dad, Juma Khan and Gul Shah thereby causing injuries on their. Heads on account of which Juma Khan later on succumbed to injuries .And under these circumstances a case .Vide No. 12/94 was registered against them under Sections 302, 379, 337-G-H R/W section 9/14 of Offences Against Property (Enforcement of Hudood) Ordinance. 1979.
2. On completion of investigation challan was put up against them before learned Sessions Judge Quetta, from: where it came up for disposal before the Additional Sessions Judge-II, Quetta.
Accordingly, under afor-enoted provision of law .Charge was framed against convicts to which they pleaded not guilty and claimed trial.
3. On the completion of trial appellants were not found guilty for the offences under Section 379/34 and Section 9/14 of Offences Against Property (Enforcement of Hudood) Ordinance, 197.9 for want of contradictory evidence produced by the prosecution. However, they were found guilty for offence under section 316 PPO. As such, were sentenced to undergo R.I. For 14 years with direction to pay (lie amount of Diyat Rs. 189,908-/ to the legal heirs of deceased of Juma Khan with the benefit of period, during which they remained under trial prisoner vide impugned judgment dated 30-6- 1996, as such, instant appeal has been filed.
4. During hearing of the appeal on 23-10-1996 Mr. Mehmood Raza learned State Counsel objected on maintainability of the appeal, in view of judgments reported in 1984 S.C.M.R. Page 129 and 1996 S.D. Page 415, appeal is not competent before this Court, therefore, it should have been filed before Federal Shariat Court.
5. Mr. Ali Ahmed Kurd appellant's Counsel contended that F.I.R, does not disclose an offence of theft against the convicts nor in this behalf evidence was produced before the Trial Court, therefore, solely for the reasons that charge under section 9/14 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was framed, the jurisdiction of this Court will not be ousted because according to him principal offence charged against the appellants was of murder of Juma Khan which has not been proved, as such, on alternating charge accused have been convicted under section 316 PPC. Thus under the circumstances appeal has been competently filed before this Court. He placed reliance of 1990 Pakistan Criminal Law Journal 1682.
6. On the other hand Mr. Mehmood Raza Learned State Counsel argued that notwithstanding that offence of theft under section 9/14 of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 is established but as charge was framed under said provision and the accused was responsible for the commission of the offence of theft., therefore, keeping in view provision of section 24 of the Ordinance of 1979 as well as the law enunciated by Honourable Supreme Court, referred to here-in-above, appeal would be competent before the Federal Shariat Court.
7. We have heard parties counsel and have also gone through the relevant provision of law. It would be appropriate to reproduce here-in-below second proviso to section 24 of the Ordinance 1979 for sake of convenience: "Provided further that offence punishable under section 9 or section 17 shall be triable by a Court of Sessions 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.
8. A bare perusal of above provision indicates that if an accused has been convicted either under any other law or any other provision of the Ordinance and sentence does not exceed, two years appeal would be competent before Hon'ble Federal Shariat Court. On the basis of evidence so collected by Investigation Agency convicts were charged under section 9/14 of the Offences Against Property (Enforcement of Hudood) Ordinance 1979. Besides, for the charge of murder of.
Juma Khan Section 302 and causing injuries to other persons under sections 337 G-II PPC. It may be noted that the prosecution case is that after the commission of offence of theft when the accused persons were going away with stolen sheep and goats they were intercepted by the complainant party on which they attacked upon them. Therefore, the question that a separate F.I.R, of theft was registered or not can only be considered, while disposing appeal on merits, but fact remains that actual charge against the accused persons was of the theft. Although during trial contradictory -evidence has been produced to prove offence of theft but accused have been found guilty for the offence of murder which they committed during same transaction.
9.. We have examined the judgment relied upon by Mr. Ali Ahmed Kurd Advocate reported in 1990 Pakistan Criminal Law Journal. The principle discussed therein is not helpful to learned Counsel rather it goes contrary to his contention. It would be note-worthy that on discussing number of Judgments Hon'ble Federal Shariat Court concluded that when any of the accused is charged under the provisions of the said Ordinance, 1979 the Federal Shariat Court has jurisdiction to hear appeal. It is to be observed that section 20 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and section 24 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 lays down forum for the appeal after the recording of the conviction by the Sessions Judge and both the sections are corresponding to each other. Appellant's Counsel also referred to PLD 1987 Peshawar page 117 and stated in this Judgment although the charge was framed against accused under section l2 of offence of Zina (Enforcement of Hudood) Ordinance, 1979, but the accused was found guilty for an offence under Section 337 PPC, therefore, appeal was disposed of by High Court, with utmost respect we may observe that as for as question of jurisdiction is concerned, that was not raised before High Court therefore, it was not dealt with.
10. In this behalf with benefit we may refer to 1984 SCMR page 129 in which the Hon'ble Supreme Court has examined scope of filing of appeal either before Sessions Judge or Federal Shariat Court, if an accused has been found guilty other than for the offence of Hudood. Relevant para is reproduced hereinbelow:- The next objection was in regard to the competency of the reference before the Federal Shariat Court, as according to learned counsel the reference for confirmation of the death sentence on a murder charge could lie only before the High Court. In this connection, he pointed out that in fact an appeal (Criminal Appeal No. 171 of 1983) had already been preferred before the High Court, and was still pending there. As the trial by the Court, of Sessions under the provision of the Ordinance was competent, the appeal would die only before the Federal Shariat Court in view of the fourth proviso to section 20 (1) and a reference for confirmation of the death sentence, to that Court would be competent under subjection (2) of the- said section. The objection, too, had been rightly rejected by the Federal Shariat Court.
11. Thus following the dictum laid down by the Hon'ble Supreme Court we are inclined to hold that since appellants were charged for offence under section 9/14 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 therefore, appeal would be competent before the Shariat Court and this Court has no jurisdiction to entertain instant appeal.
According appeal is dismissed.