JUDGMENT AMIRUL MULK MENGAL, J.- In this appeal order dated 18.5.1994 passed by learned Sessions Judge Loralai in Case No. 43 of 1992 has been challenged whereby the learned trial court found the appellant guilty under section 20 of the Offences Against Property (Enforcement of Hudood) ordinance, 1979 (hereinafter referred to as the "Ordinance" read with section 216-A P.P.C, and convicted him to suffer two years R.I. And to pay a i.e of Rs.3000/-in default of payment of i.e the appellant was further ordered to undergo six months R.I.
2. Brief facts for filing of this appeal are that on 30.8.1992 at 9.00 p.m. When the levies party reached near Nasar near killa Saifullah at about 1030 at the night they were informed that the road had been blocked. Receiving such information, the levies party reached the place of incident and found a truck standing and two persons out of whom one had a Klashinkove were making search of inmates of the truck. The persons riding the. Truck were employees of hydrogeology WAPDA who told the levies party that they have been deprived of Rs. 2,000/- and three watches. The levies then followed the tracks of the culprits and reached the house of the appellant. They arrested accused persons as well as appellant. All the accused persons were challaned and were tried by learned Sessions Judge Loralai for an offence under section 20 of the Ordinance read with section 392 PPC and were convicted and sentenced.
3. It is to be noted that the trial was joint. All the convicted persons including present appellant filed appeal before Federal Shariat Court which is still pending.
4. Present appellant has filed this appeal mainly on the ground that he has been convicted and sentenced to two years and appeal lies to the High Court.
5. Since an important question of law arose whether appeal has been competently filed before this court, the court appointed Mr. Muhammad Aslam Chishti, Mr. SA.M. Quadri and Mr. Tariq Mehmood, Advocates as Amicus curiae. Besides learned amicus Curaie I have heard Mr. Basharatullah, Advocate for appellant and Mr. Salahuddin Mengal, AAG For the State.
6. Mr. Muhammad Aslam Chishti learned amicus while assisting the court submitted at the very outset that it may be considered first as to what accused persons may be charged jointly within the meaning of section 239 Cr. P.C. While reading from said section, according to learned counsel section 239 (d) and (e) are applicable in the present case. He then submitted that section 24 of the Ordinance provides for an appeal from the order. According to learned amicus appeal in all cases of Harraba irrespective of quantum of sentence shall lie to the Federal Shariat Court. Second limb of argument was that an order/judgement passed under the Ordinance relates to an offence and not-an individual accused person, therefore, in a trial where more than one accused person are involved and if sentence of any of the accused person exceeds two years appeal shall lie to the Federal Shariat Court. It was thirdly contended by the learned amicus that even otherwise for smooth administration of justice it is necessary that in such cases the appeal should be filed before Federal Shariat Court in Order to avoid conflict of judgements.
7. Mr. SAM Quadri appearing as amicus Curaie however took a different view as under:-
(i) present appellant has not been convicted under section 9 or section 17 of the Ordinance therefore appeal shall lie to the High Court. In furtherance of the arguments learned counsel submitted -that-------------------------------- -the present appellant has since been convicted under section 216-A PPC and sentenced to two years therefore, according to second proviso to section 24 of the ordinance the appeal shall lie as provided in the Code of Criminal Procedure.
(ii) As to conflict of judgements Mr. Quadri submitted that the remaining accused persons have been convicted not under section 216-A PPC therefore there is no likelihood of conflict of judgement if this appeal is disposed of on merits.
8. Mr. Tariq Mehmood the third learned amicus while making his submissions contended that although this court has held in Criminal Jail Appeal No. 31 of 1994 that an appeal from an order under either of the said sections (section 9,17) or from an order under any provision of this Ordinance which imposes a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court therefore directions were made to the office that appeal be sent to Federal Shariat Court has decided the point in issue but it requires thorough examination. He also argued that a Full Bench comprising of i.e Judges of the Federal Shariat Court has decided that appeal in such cases shall lie to the Federal Shariat Court but he failed to produce the said report.
9. Learned A A.G. Was also of the view that in such like cases appeal would lie to the Federal Shariat Court.
10. Now I advert to the arguments advanced by Mr. Basharatullah the learned counsel for the appellant. According to learned counsel section 24 is quite clear. Second proviso to said section creates an exception from the whole. Such exclusion from the whole is deliberate and intentional Learned counsel submitted that second proviso has clearly laid down that appeal from an order under either of the sections or from an order under any provision of the Ordinance which imposes a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court. It has thus made it clear that imprisonment for a term not exceeding two years-------------------- ---- r~shall lie to the court having jurisdiction under Cr J.And not to the Federal Shariat Court.It was next contended by the learned counsel that order of conviction is also referable to an individual accused. It is not in respect of a case but in respect of an individual accused who has been jointly tried. He referred to section 15 of the ordinance which defines harrabah. Me also made reference to section 9 and section 17 of the Ordinance and submitted that irrespective of the sentence appeal in such cases shall lie to the Federal Shariat Court However section 20 of the Ordinance is not clearly mentioned in section 24. According to the learned counsel the genesis of the offence should be examined and taken into consideration.
11. In the light of the aforementioned arguments I proceed to determine the pivotal question as involved in this appeal viz whether appeal is competent before this Court or in the alternative sindh appeal has to be filed before Federal Shariat Court. The important point for-consideration would be to see if there had been joint trial of more then one accused person for more then one offence whether separate appeals can be filed by each of the accused. In this regard resort has to be taken to the provisions of Code of Criminal Procedure as well as to the Ordinance. Had the appellant been tried separately under section 216-APPC and convicted and sentenced to imprisonment for a period of not more then two years, then of course appeal would have been competent before this court in view of clear provisions of section 24 of the Ordinance. But it is not the case here. Admittedly present appellant was jointly challaned and tried along with co-accused persons by the learned Sessions Judge Loral Remaining accused persons were convicted and sentenced to imprisonment for more then two years. In the same judgement present appellant was found guilty under section 20 of the ordinance read with section 216-A PPC and was awarded imprisonment for two years. The judgement is composite. It is always a judgement or an order against which appeal lies. I do not agree with Mr. Basharatullah that the section relates to individual accused person. In fact the word "Order" used in section 24 refers to the order of the trial court. If in a joint trial any order is passed convicting an accused under Jpn 9^7 the ordinance appeal .Shall lie to the Federal Shariat Court. However, by Ordinance 11 of 1982 the following words were inserted into this proviso:- or from an order under any provision of this Ordinance which mimposes a sentence of imprisonment for a term exceeding two years"
12. From bare reading of second proviso to section 24 k become abundantly clear that any offence punishable under section 9 or section 17 of the Ordinance shall be triable by a court of Sessions alone and an appeal from an order under either of the said sections shall lie to the Federal Shariat Court The amendment in the proviso however, suggests that apart from the two sections (section 9 or section 17) any appeal shall lie to the Federal Shariat Court against an order under any of the provision of Ordinance which imposes a sentence of imprisonment for a term exceeding (wo years.
Thus irrespective of quantum of sentence any conviction recorded under section 9 or section 17 of the Ordinance by the court of Sessions, appeal shall lie to the Federal Shariat Court. As far as a sentence of imprisonment less than two years is concerned, it does not relate to section 9 or section 17 but against other sections in the Ordinance and if sentence in any other section does exceed two years then appeal shall lie to the Federal Shariat court and in case a sentence is less than two years the appeal shall lie to the court of competent jurisdiction under Cr.P.C.Mr. Basharatullah contended that present appellant has not been convicted cither under section 9 or section 17 of the Ordinance, therefore, according to the second proviso of section 24 of the Ordinance, appeal shall not necessarily lie to the Federal Shariat Court. In my calculated view if the trial court imposes a sentence of imprisonment exceeding two years for any offence under the Ordinance, the appeal shall lie to the Federal Shariat Court irrespective of section 9 or section 17. So applying this principle to the facts of the present case it is found that co-accused---------------- in this case were found guilty under section 20 of the Ordinance and awarded sentences exceeding two years. However, in the same order sentence awarded to the present appellant is two years under section 20 of the Ordinance read with section 216-A P.P.C.
13. As pointed out hereinbefore the offences have been committed by the accused persons in the same transaction, therefore, all of them have been challaned and jointly tried. Learned Sessions Judge imposed different sentences including sentence of imprisonment exceeding two years. Such order, therefore is an order which has imposed a sentence of imprisonment which exceed two years irrespective of the fact that out of several accused some of them have been awarded even lessens imprisonment the appeal shall lie to the Federal to the Federal Shariat Court. It is always the order of the trial court against which an appeal shall lie. Second proviso to section 24 of the Ordinance contemplates that appeal from an order under any provision of Ordinance which imposes a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat court. Learned Sessions Judge Loralai passed an order imposing sentence of imprisonment exceeding two years, therefore such order shall be appealable to the Federal Shariat Court and not to the High Court in view of the second proviso to section 24 of the Ordinance.
14. Now attending to the argument of Mr. Muhammad Aslam Chishti that it would otherwise be in the interest of justice that in such like cases where the intention of the legislature appears to be to allow appeal before Federal Shariat Court the law should not be interpreted to spilt a judgement and order and to allow any one of the accused person who has been given lesser punishment, in a joint trial to invoke jurisdiction of the High Court because this would cause conflict of judgements.
There is much substance and force in this argument as well It is obvious that in a joint trial evidence against all the accused persons is recorded by the trial court. In appeal such evidence is to be scrutinised by the appellate court. If argument of Mr. Basharatullah is accepted then two appellate courts have to simultaneously appreciate evidence i.e. The accused having lesser punishment of imprisonment of two years would i.e appeal to the High Court and remaining accused persons awarded punishment of imprisonment exceeding two years would i.e appeal before Federal Shariat Court. Thus there is likelihood of conflict of judgements which is not appreciated and such situation should be avoided in the interest of justice.
15. Lastly it is an admitted fact that appellant has already invoked appellate jurisdiction of Federal Shariat Court the question of competency of appeal and all legal and factual questions raised can be argued in the appeal already filed before the Federal Shariat Court Additionally, the appellant has already filed appeal before Federal Shariat Court, therefore, another appeal before this Court is not maintainable.
16. From the aforementioned discussion I have come to the conclusion that this appeal is not maintainable before this . Court. The same is, therefore, dismissed as such.
17. During the hearing of the appeal, I had passed ing the order of conviction and thus granting bail to the appellant. Since I have held that appeal before this Court is not competent, therefore, aforementioned order is recalled. Resultantly the appellant shall be taken into custody. He may take appropriate proceedings before Federal Shariat Court in this regard.
18. Before parting with this judgement I must appreciate the celebrated and illuminating assistance rendered by learned amicus Curaie.