' M.A. 104 of 1998 in Criminal Appeal No,9 of 1998 seeks an order for suspension of sentence awarded to the appellant in Sessions Case No,28 of 1995 under sections 1; and 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 where under he was convicted for the offence under section 365, P.P.C. And sentenced to undergo R.I. For a period of five years and fine of Rs,5,000 or in default to undergo imprisonment for six months.
2. When this application came up for hearing before me on 12-8-1998, the then Assistant Advocate-General, Mr. Sher Muhammad Shar raised a preliminary objection with regard to jurisdiction of Federal Shariat Court to entertain appeals from the conviction arising out of an offence registered under the Hoodooed laws. Learned Assistant Advocate-General referred to the decided case reported as Flak Sher v. State 1996 PCr.LJ 804 expressing the view that in every case arising out of Hoodooed laws irrespective of the fact whether the conviction is recorded under Hoodooed or general law, appeal would be competent before Federal Shariat Court alone. On this occasion Mr. Rehmat Ali Rajput requested for time to work out law on the point and at his request hearing was adjourned to 26-8-1998. In the meanwhile Mr. Rehmat Ali Rajput has proceeded on general adjournment which was granted except in cases in which date was fixed by Court. On 26- 8-1998 Mr. Muhammad Bachal Tunio, Advocate held brief for the counsel and on being apprised of the situation undertook to assist the Court if a short adjournment was granted. Today instead of Mr. Muhammad Bachal Tunio, Mr. Muhammad Afzal Soomro, and Advocate has held brief for Mr. Rehmat Ali Rajput and submitted that since conviction was recorded under section 365, P.P.C.
Irrespective of the fact that the offence was registered under Hudood Ordinance appeal would be competent before this Court. In support of his contention, learned counsel has relied upon cases reported as Doran Khan v. State PLD 1985 Quetta 188 and Sadiq Shah v. State 1989 PCr.LJ 1330.
3. In the earlier case, the view taken was that Additional Sessions Judge convicting accused in capacity of a Court constituted under Criminal Procedure Code and not as of Court exercising jurisdiction under Hoodooed laws, appeal would lie to High Court and not to Federal Shariat Court.
In the reported case, offence had been registered under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance but the appellant was convicted under section 354, P.P.C.
Main reason which prevailed with the learned Judge in the Baluchistan High Court was that under section 193(1), Cr.P.C, a Sessions Judge cannot take cognizance of an offence as a Court of original jurisdiction unless the case has been sent up to him by a Magistrate under subsection (3) of section 190, Cr.P.C. Which means that only that offence shall be sent up by a Magistrate to a Court of Sessions for trial which is exclusively tribal by the Court of Sessions. Learned Judge also took the view that the Court of Sessions had no jurisdiction to try an offence under section 354, P.P.0 nor it could be sent up to it by a Magistrate for trial. He further held that obviously the learned Additional Sessions Judge had no jurisdiction to record conviction and sentence against the appellant when he came to the conclusion that he had committed an offence punishable under section 354, P.P.C.
Only although the appellant was initially charged for an offence punishable under section 18 of the Hudood laws. While referring to section 20 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 providing that an offence punishable under this Ordinance shall be tribal by a Court of Sessions and an appeal from an order of the Court of Sessions shall lie to the Federal Sharia Court, learned Judge took the view that this would clearly mean that an appeal shall lie to the Federal Shariat Court in those cases only which are punishable under the Ordinance and not under any other law.
4. In Sadiq Shah's case which is a D.B. Decision of the Peshawar High Court, appellant had been convicted under section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well as section 302, P.P.C. While referring to section 20 of the said Ordinance, the view taken was that appeal would be competent before the Federal Shariat Court which has the exclusive jurisdiction to Lear appeal against the order of the Sessions Court. Surprisingly same learned Judge concurred with the judgment authored by Muhammad Ishaque Khan, J. In this case without elaborating his own view taken in Quetta case.
5. In Qurban Ali v. State Criminal Appeal No,14 of 1998, decided on 18-8-1998 following the view taken in Falak Sher's case, I held that all appeals arising out of cases of which cognizance was taken under Hudood laws would be competent only before the Federal Shariat Court and not before the High Court even though the conviction has been recorded under general law. After the earlier decision more cases reported from Quetta and Lahore jurisdiction have come to light with the assistance of Mr. Tunic the learned Assistant Advocate-General. These are reported as Nazak Mir v. State 1995 PCr.L.I 724 and Manor v. State 1996 PCr.LJ 475. In the Quetta judgment, authored by Amirul-Mulk Mengal, J., the view expressed is that if the Trial Court imposes a sentence of imprisonment exceeding two years for any offence under the Hoodooed Ordinance, appeal shall lie to the Federal Shariat Court irrespective of section 9 or section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Applying this principle to the case in hand before the Quetta High Court in which one of the appellants was sentenced to imprisonment for two years under section 20 of the Ordinance read with section 216-A, P.P.C. Appeal was held to be competent before the Federal Sharia Court. View expressed in Mansour's case is that as the offence for which the appellants were convicted constituted the offence under Pakistan Penal Code, contention that appeal would lie to High Court was not sustainable because the determining factor for the appellate jurisdiction was not the offence for which the accused were convicted but the forum of their trial. This decision is in line with the view taken in Flak Sher's case referred to earlier.
6. On a careful consideration of the facts and circumstances of the case and with particular reference to section 24 of the Offences Against Property (Enforcement of Hoodooed) Ordinance, I am in respectful agreement with the view taken by the Lahore High Court which has been the consistent practice followed in the Sindh High Court. It is accusation and the nature of the offence for which the accused was initially tried and forum which would determine the forum of appeal and not the outcome of the trial because forum of appeal would not change with the result of the trial. Any other view would render the provision contained in section 24 of the Ordinance and section 20 of the Offence of Zina (Enforcement of Hoodooed) Ordinance, redundant.
7. Consistent with the view taken by me earlier, I am of the view that the present appeal is completely misconceived and not maintainable before the High Court. Indeed, it is improperly constituted and wrongly presented before this Court. Memo. Of appeal shall, therefore, be returned to the appellant for presentation before the proper Court. This disposes of miscellaneous application for suspension of sentence as well.