' SABIHUDDIN AHMAD, J.--- This is an appeal against the acquittal of the respondent charged with offences under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, dated 8-1-1995 passed by the Judicial Magistrate, Kotri. The appeal has been preferred by the Advocate-General, Sindh on behalf of the State. Since the law did not appear very clear as to the Forum before which this appeal could be entertained, we decided to consider this issue first. We requested the Assistant Advocate-General on 13-11-1997 to satisfy us whether such appeal was maintainable before us and since he was not in a position to do so, we adjourned the matter to 20-11-1997 and requested Mr. S. Madad Ali Shah, Senior Advocate to assist us on this legal question.
2. S. Madad Ali Shah, in a well-researched address, did not specifically commit to any particular point of view but placed the relevant law and precedents before us, showing that reported decisions indicated divergence of opinion on the issue. At the outset he took us through the provisions of Article 27 of the Prohibition (Enforcement of Hadd) Order, 1979 and similar provisions in other Orders, pertaining to enforcement of Hudood, pointing out the extent to which the provisions of the Code apply to proceedings relating to offences under such laws and the extent of the appellate jurisdiction of the Federal Shariat Court in such matters. He pointed out that the question before us has not been pronounced upon by this Court or the Honourable Supreme Court in any reported judgment. At the same time, he candidly brought to our notice certain judgments of the Federal Shariat Court and the High Courts of Peshawar and Balochistan relating to appeals against acquittal in Hudood Offences, where different views appear to have been taken.
3. Before considering these judgments it may be observed that under the Criminal Procedure Code, appeals against order of conviction passed by the Assistant Sessions Judge or Judicial Magistrate (subject to certain special exceptions not relevant in the present context) lie to a Court of Sessions while an appeal against the conviction recorded by the Sessions Judge or Additional Sessions Judge is to be preferred before this Court. Under section 417, Cr.P.C. An appeal against an ' order of acquittal, whether original or appellate, passed by any Court lies to this Court. On the other hand, however, the special law under which the respondent was charged i,e, Prohibition (Enforcement of Hadd) Order, specific dispensation relating to applicability of the Criminal Procedure Code as well as provision for appeal is made. It may be pertinent to reproduce Article 27(1) of the Order which has a direct bearing on this case:- 27(1). Unless otherwise expressly provided in this Order, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the said Code, shall apply, mutatis mutandis in respect of cases under this Order-- ' Provided 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 thereof, be convicted and punished for that offence: ' Provided further that the offence punishable under Article 8 shall be triable by a Court of Sessions and not by a Magistrate authorised under action 30 of the said Code and an appeal from an order under that Article 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.
(Underlining is ours)
' Provided further that trial by a Court of Sessions in this Order shall ordinarily be held at the Headquarters of the Tehsil in which the offence is alleged to have been committed."
4. In the case of State v. Rafiullah alias Gul 1992 PCr.LJ 435, an appeal against an order of acquittal recorded by a Magistrate under Articles 3 and 4 of the Prohibition Order, 1979, was entertained by the Peshawar High Court but dismissed on merits by Muhammad Bashir Jehangiri, J. (Presently Judge Supreme Court). On the other hand in the case of State through Advocate-General, N.-W.F.P. v. Iqbal Bibi 1994 PCr.LJ 403 a similar appeal was decided by the Federal Shariat Court. In none of these cases, however, the question as to the correct Forum of the appeal was raised or discussed, though the observation of Jehangiri, J. (as his Lordship then was) in the case of State v. Rafiullah on the merits were cited with approval by the Bench of the Shariat Court.
5. Nevertheless, Syed Madad Ally Shah also referred to two recent decisions where the question of Forum of appeal against acquittal was directly raised and decided. In a subsequent Peshawar case, reported as State v. Muhammad Yakoob 1997 PCr.LJ 528 Nasirul Mulk, J. Repelled an objection as to the maintainability of an appeal against an order of acquittal by Advocate-General in an offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and proceeded to hold that such an appeal was maintainable before the High Court, Interpreting the abovequoted Article 27(1) it was observed: == "Thus, but for the exception provided under the aforementioned proviso, appeals against orders passed under the Order shall be regulated by the Criminal Procedure Code and will, therefore, be made to forums prescribed under the Code. The said proviso has made only two exceptions where appeals are to be made to Courts other than the ones specified under the Criminal Procedure Code and to in both cases the appeal would lie to the Federal Shariat Court. The first exception is where the offence is tried under Article 8 of the Prohibition Order, and the second where the sentence imposed by the trial Court exceeds two years. The result is that appeals against the orders of the trial Court under the order would be regulated by the provisions of the Criminal Procedure Code if on conviction sentence imposed does not exceed two years or the accused is acquitted, in cases other than the one tried under Article 8 of the Order. Appeals against orders of acquittal lie to the High Court under section 417 of the Code. As the accused were charged under Article 3/4 of the Order and not under its Article 8, the present appeal was competently filed in the High Court."
6. Syed Madad Ali Shah also brought to our attention a recent judgment of a Division Bench of the High Court of Balochistan in the case of Haji Pir Jan v. Muhammad Yaqoob and 9 others 1997 PCr.LJ 1236 wherein a different view was taken. While interpreting almost identical provision contained in section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance their Lordships declined to entertain an appeal against acquittal and returned the memo. Of appeal for presentation before the Federal Shariat Court. In the judgment authored by Raja Fayaz Ahmed, J., it was held:-- "(9) We feel inclined to hold that even for the offences other than those defined and made punishable under the Ordinance or punishable under any. Other law for the time being in force within the ambit of the Ordinance, whether it result into conviction of imprisonment for a term exceeding two years or into an order of acquittal passed by a competent Court, appeal would lie to the Federal Shariat Court only due to the jurisdiction having been so conferred to the Federal Shariat Court."
7. Having carefully read the aforesaid judgments and considered the import of the applicable statutory provisions, we are inclined to subscribe to the view taken by the Peshawar High Court. The observations quoted in para. 5 above, in our humble view are unexceptionable. It is a settled principle of interpretation that a proviso to a statutory provision contains in exception to the general rule. The general rule in the above context is laid down in the main Article 27(1) which stipulates that the provisions of the Criminal Procedure Code unless otherwise expressly provided shall apply in respect of cases under this Order. This obviously includes provisions relating to appeals contained in Part VII Chapter XXXI. The second proviso commits two kinds of orders to the appellate jurisdiction of the Federal Shariat Court namely, (i) all Orders relating to Hadd Offence under Article 8 and (ii) Orders imposing sentence of imprisonment. For a term exceeding two years under other provisions. Appeals against orders not covered by this proviso could only be preferred before a Forum Stipulated under the Code in terms of the main Article 27(1).
8. A cursory glance at the history of this legislation also fortifies our view. When this Order was promulgated in 1979 the main provision of Article 27(1) appeared in its present form but the second proviso did not exist. Offences would be triable by ordinary Criminal Courts and appeals were to be heard and decided by Forum provided for in the Code by virtue of the aforesaid Article 27(1). In 1980 the Federal Shariat Court was established and vide P.O. V of 1980 the second proviso was inserted in the aforesaid Article 27(1) making Hadd Offences under Article 8 triable exclusively by a Sessions Court and stipulating Orders passed therein appealable before the Shariat Court. Similar amendments were made in other statutes relating to Hudood. Through a subsequent amendment vide P.O. VI of 1982 the appellate jurisdiction of the Federal Shariat Court was extended to cover appeals against convictions entailing punishment of more than two years imprisonment. The jurisdiction of the Shariat Court was enlarged progressively and even now it is confined to a certain category of cases mentioned in the second proviso. The jurisdiction to hear appeals against other judgments i,e, convictions entailing less than two years imprisonment or acquittal must necessary be covered by the provisions of the Code.
9. The view contrary to the above taken by the High Court of Balochistan appears to be mainly founded upon two considerations. It may be pointed out that the provision of section 24(1) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, including its proviso, are almost identical to Article 27(1) of the Prohibition Order with the difference that the Hadd Offences of theft and Haraba under sections 9 and 17 (like the Hadd Offence of Drinking under section 8 of the Prohibition Order) are exclusively triable by Sessions Courts and appeals against their orders lie to the Federal Shariat Court. In holding that an appeal against a judgment of acquittal even for offences other than those covered by sections 9 and 17 could only lie to the Federal Shariat Court, their Lordships were persuaded by the consideration that the second proviso controls the main proviso and came to the following conclusion:-- "Under the second proviso to section 24 of the Ordinance, Federal Shariat Court has been expressly termed and specified to be the Court of appeal, whereas; for limited purpose of a case where the sentence of imprisonment not exceeding two years has been passed an appeal shall lie to High Court except against an order under section 9 or 17 of the Ordinance. Thus, the principal Court of appeal is the Federal Shariat Court and not a High Court."
10. Indeed there can be no cavil with the provision that in the event of a conflict the provisions of the second proviso, being express stipulation to the contrary, would prevail over those of the Code made applicable through the main provision. Nevertheless it may be stated with profound respects that their Lordships omitted to consider that the second proviso neither stipulates that the Federal Shariat Court would be 'the principal Court of appeal' nor provides that an appeal against a sentence of imprisonment not exceeding 2 years would lie to the High Court. It only provides that appeals in certain specific cases would lie to the Shariat Court. In fact there was no other provision in the Ordinance describing a forum of appeal against sentences of less than two years imprisonment. Such appeals could only be preferred through the application of the main section 24(1) whereby the provisions of the Code relating to fora of appeals were made applicable, subject to an express provision to the contrary. When appeals against the orders of conviction could be preferred on the basis of the provisions of the Code there could be no conceivable reasons for not giving effect to the provisions conceding appeals against acquittal.
11. Secondly, their Lordships appear to be persuaded by the argument that an element of incongruity would arise if appeals against the orders of conviction and those acquittal prounounced by the same Court are preferred before different fora. With profound respect we are unable to share this view. Long before the enactment of Hudood laws our legal system has provided for appeals against the judgment of conviction and acquittal. Rendered by one Court before different fora. Under section 408 of the Code only an appeal against the conviction ordered by Magistrate can be preferred to a Court of Sessions. On the other hand only a High Court is competent to entertain an appeal against the acquittal from a judgment of any Court i,e, whether a Magistrate or a Court of Sessions. Even in a joint trial of more than one person, finding of conviction against one and acquittal in favour of another are necessary separate and distinct findings and can be called in questioned on entirely different grounds. No anomaly, in our view, would arise if they are reconsidered by different appellate authorities.
12. In view of the above we would sum of our conclusion as to the import of Article 27(1) of the Prohibition (Enforcement of Hadd) Orders in the following terms:--
(i) The provisions relating to appeals stipulated in the Code of Criminal Procedure apply to cases tried under the aforesaid order subject to specific stipulations contained in the second proviso.
(ii) Appeals against all Orders whether of conviction or acquittal relating to offences under Article 8 can only be preferred before the Federal Shariat Court.
(iii) Appeals against order of conviction leading to a sentence of more than 2 years under any other provision of the order will also lie to the Federal Shariat Court.
(iv) Appeals against the judgment not covered by number (ii) or (iii) above, will lie before fora provided for entertainment of such appeals by the Criminal Procedure Code.
13. For the foregoing reasons we are of the opinion that the above appeal is maintainable before this Court. However, since we have not had the benefit of hearing the learned Assistant Advocate- General on merits, we would order that the matter be listed for Katcha Peshi at an early date. We must express our gratitute to Syed Madad Ali Shah, Advocate for his invaluable assistance particularly in placing the relevant case-law before us.