' This is an appeal filed by Falik Sher alias Falku son of Fazal, caste Harper, resident of Chak No,115/EB, Police Station Ahmad Yar, District Sahiwal and by Amin alias Mena alias Talli son of Khan caste Khoja resident of Chak No,235/EB, Police Station Gaggu, District Vehari against an order and judgment passed by Ch. Abdul Sattar, Additional Sessions Judge, Vehari on 20-5-1986 while deciding a case registered vide F.I.R. No,94, dated 16-4-1985 under sections 458 and 109, P.P.C. The complainant Haji Muhammad Iqbal made a statement before Anwar Ali S.I. At the bridge of canal situated in the area of Chak No,172. The statement recorded by Anwar Ali, S.I. Was .Sent to the police station and formal F.I.R. Was recorded by Muhammad Safdar M.H.C. Of Police Station Sadar, Vehari.
During investigation on the objection of the prosecution agency offence under section 17, Offences Against Property (Enforcement of Hudood) Ordinance VI, 1979 was also added and consequently the challan was sent to the Court of learned Sessions Judge, Vehari, who entrusted the same to Ch. Abdul Sattar, Additional Sessions Judge, Vehari, for its disposal according to law. Learned Additional Sessions Judge framed the charge under section 17 of Offences Against Property (Enforcement of Hudood) Ordinance VI, 1979 against Falak Sher, Akram, Amin and Jahana accused, read with section 109, P.P.C.
2. Haji Muhammad Iqbal complainant stated in his statement that he resides with his maternal- uncle. Jan Muhammad in Chak No,161. On 16-4-1985 at about 12 p.m. (night) he heard alarm raised by his maternal-cousin Muhammad Sharif and he ran towards the place of occurrence, where an electric bulb was lit in the house. He saw that Falak Sher armed with pistol, Muhammad Akram armed with Sota, Amin armed with pistol were causing injuries to Muhammad Sharif. Meanwhile, on hearing the noise, Khushi Muhammad Lambardar, Jan Muhammad his maternal-uncle and Abdul Ghani reached at the spot. On arrival of P.Ws. Muhammad Amin alias Mena succeeded in running away from the compound of the house whereas Sharif P.W. Caught hold of Falak Sher alias Falku convict. They both grappled with each other. Falak Sher alias Falku fired at Muhammad Sharif with his pistol which missed. Falak Sher alias Falku exhorted his companions that he has been captured and they should make an attempt to get him released. On this Amin alias Mena fired two shots from outside the house. One fire hit Muhammad Sharif on his left ear and second shot fired by Amin hit Falak Sher alias Falku accused on buttocks. Number of persons were attracted to the place of occurrence. On arrival of the people of the village accused Muhammad Akram and Muhammad Amin ran away from the place of occurrence along with their weapons. Falak Sher alias Falku appellant was captured at the spot alongwith a pistol and six live cartridges. On search, complainant found that the household articles and clothes were lying scattered in the residential room of his maternal-uncle Jan Muhammad and the trunks were lying open. Fortunately the accused could not succeed in stealing anything on account of the timely action of the P.Ws. Falak Sher appellant was produced by the complainant and the P.Ws. Before Anwar Ali S.I. On the same night at about 2 a.m.
3. Learned Judge during the trial recorded the statements of seven P.Ws. In support of the prosecution case. Accused when examined under sections 342 and 340, Cr.P.C. Claimed innocence.
4. After completing the trial, the learned Additional Sessions Judge vide his judgment, dated 20-5- 1986 acquitted Jhana accused and convicted Falak Sher, Muhammad Akram and Muhammad Amin accused under section 458, P.P.C. And sentenced them to five years' R.I. Each. The learned Judge held that no offence under section 17, Offences Against Property (Enforcement of Hudood)
Ordinance VI, 1979 was made out from the evidence on record. Hence this appeal.
5. Without making critical analysis of the evidence produced by the prosecution I would like to dispose of the appeal on the question of jurisdiction of this Court to hear and decide the present appeal.
6. I have heard the learned counsel for parties and have gone through the record very carefully. In order to decide the question of jurisdiction of this Court, I would like to refer to section 24, Offences Against Property (Enforcement of Hudood) Ordinance VI, 1979. The first proviso of section 24 reads "provided further that the offence punishable under this Ordinance shall be tribal by a Court of Session and not by a Magistrate authorized under section 30 of the said Code and an appeal from an order under either of the said section or from an order under any other provision of this Ordinance which impose sentence of imprisonment for a term exceeding two years, Shall lie to the Federal Shariat Court. Provided further that trial by a Court of Session in this Ordinance shall ordinarily be held at the Tehsil Headquarter in which the offence is alleged to have been committed."
7. This provision of law make it clear that if the trial is conducted for an offence under Article 17, the appeal shall lie to the Federal Shariat Court, irrespective of the fact that ultimately the Court convicts the offender for another offence falling in P.P.C., because the same section also provides that if it appears in evidence "that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and to award punishment therefor be convicted and punished for that offence.
8. The other important factor is that had the challan not been submitted under section 17 of the Act VI, 1979, the trial would not have been conducted by a Court of Session. It has been held in Muhammad Hussain v. Muhammad Ramzan and others PLD 1982 FSC 11 that the Federal Shariat has been given unfettered powers of appeal to examine any sort of case relating to appreciation of facts or law.
9. In view of the above discussion the forum for the appellants to file an and ape was the Federal Shariat Court d not the High Court.
10. It is directed that the appeal be returned to the appellants or their counsel to present the same before the Federal Shariat Court, if they so desire. Appellants are on bail granted by this Court. Their bail is withdrawn. Non-bailable warrants of arrest are directed to be issued against the appellants.
The warrants are to be executed through the Sessions Judge, Vehari.
11. The appeal is disposed of in these terms.