' This appeal is directed against the judgment, dated 12-6-1998 passed by learned Sessions Judge, Loralai whereby the appellants have been convicted under section 457/34, P.P.C. And sentenced to ten years' R.I. Each along with a fine of Rs,20,000 each or in default thereof further R.I. For one year for allegedly committing lurking house trespass by night and theft in the shop of the complainant.
Benefit of section 382-B, Cr.P.C. Has, however, been extended to them.
2. Briefly stated, the prosecution case as gathered from the record is that on 4-11-1997 report was lodged by one Abdul Qayyum with Naib-Tehsildar, Sanjavi,, alleging that about six days before some unknown persons had committed theft in his shop situated at Pohi Bazar, and that in the previous night a motor-cycle was found parked near the orchard of Wala Din which was allegedly left there by the riders, on Lalkara made by the said Wala Din. It was further alleged therein that the said riders were suspected for having stolen the property from the shop of the complainant and that the stolen property was lying in a nearby Ghundi. Record reveals that in pursuance of the above report, allegedly stolen property was recovered from the said Ghundi and appellants were arrested and challenged to Court for trial.
3. In Court, charge was framed to which the accused/appellants pleaded not guilty and claimed trial.
4. At trial, the prosecution in order to prove the charge and substantiate the allegations leveled against the accused produced five witnesses, in all. Where after, they were examined under section 342 as well as 340(2). Cr.P.C. In their statements they denied the charge and pleaded innocence.
However, they declined to lead any evidence in their defense.
5. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the accused/appellants and awarded punishment as mentioned in the opening para. Thereof.
6. I have heard Mr. Amanullah Tktreen,- Advocate,"learned counsel for the appellants, MT. Zahid Muqeern Ansari, Advocate for the State and have also perused the entire record with their help.
7. At the very outset, it has been pointed out by the learned counsel appearing for the State that the appellants having been convicted and sentenced to the punishment under section 457/34, P.P.C. The instant appeal was not maintainable in this Court. In order to supplement his contention he stated that though it was alleged in the report that theft was committed in the shop of the complainant by the appellants at night and challah was also submitted under section 457/380, P.P.C. Read with section 9/14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said "Ordinance") yet since the trial Court had not tried the appellants under the Hludood Laws and had charged them under section 457/34, P.P.C. Only, therefore, appeal was nor competent before this Court and the appellants should have challenged the impugned judgment/order in the same hierachy. In support of his contention he has placed reliance on the case of Muhammad Ishfaque v. The State reported as PLD 1993 SC 368.
8. Learned counsel for the appellants while controverting the contention submitted that since in the report lodged by the complainant, it was unequivocally alleged that the appellants had committed theft by breaking his shop at the night and that the challan was also submitted under section 457/380 read with section 9/14 of the said Ordinance, therefore, it was a case triable by a Court of Sessions, under the Hudood Laws, therefore, notwithstanding the fact that the appellants were not charged with the offences under the Hudood Laws the appeal would be maintainable before the Federal Shariat Court.
9. In order to supplement his contention he has placed reliance on a Division Bench judgment of Lahore High Court delivered in the case of Sardar Muhammad Tariq and another v. Special Judge of the Court of Suppression of Terrorist Activities, Rawalpindi, reported as 1996 PCr.LJ page 58, wherein while relying on the case Allah Din and 18 others v. The State 1994 SCM R 717, it was held that in order to determine the question of jurisdiction of the Special Court, reliance shall be placed on the contents of the F,I.R., material collected by the prosecution and the report under section 173, Cr.P.C. Assuming the same to be correct, as truthfulness or otherwise of the same has to be determined by Court on trial.
10. In order to ascertain as to whether there is substance in the contentions raised by the learned counsel for the parties I have myself minutely gone through the record and given serious thought to it. It appears that though in the report lodged by the complainant no provision of law, was mentioned under which the allegedly committed "offences" were punishable, yet, in the challan it was described that the "offences" were punishable under section 457/380, P.P.C. Read with section 9/14 of the. Said "Ordinance". From the language of the charge, it appears that though the learned trial Court had called upon the appellants to answer the charge that they in furtherance of their common intention had committed theft and lurking house trespass by night in the shop of the complainant yet, had not ostensibly charged them for the offences punishable under the said Ordinance. They were simply charged under section 457/34, P.P.C. Even section 380, P.P.C. Which provides for punishment of theft, was not incorporated therein.
11. There can be no cavil with the proposition that while taking cognizance of an "offence" Court can determine its jurisdiction on the basis of F.I.R. And other material produced by the prosecution at the time of presentation of chatlan, as has been held by the Honorable Supreme Court of Pakistan in the case of Allah Din and 18 others v. State reported as 1994 SCM R 717, yet, it cannot be done without sifting the evidence/material produced by the prosecution along with the challan, therefore, even if, according to the learned counsel for the appellants, the instant case was punishable under section 9/14 of the said Ordinance and the trial Court had wrongly assumed jurisdiction to try the same under the provisions of the Pakistan Penal Code, even than the impugned judgment cannot be assailed before this Court. It is well-settled now and Mr. Zahid Muqeem Ansari, Advocate, learned counsel for the State has rightly pointed out that if a Court not possessed of jurisdiction to try a case, wrongly assume the same and exercise power not vested in it and passes a judgment in consequence thereof, appeal from its decision would lie in the same manner, as an appeal would lie from a decision made with jurisdiction. This view received support from the observations of the Honorable Supreme Court of Pakistan made in the case of Muhammad Ishfaque v. The State reported as PLD 1973 SC 368. Further, a Full Bench of this Court in the case of Rasool Bakhsh and others v. The State and others reported as 1998 PCr.LJ 438 has already laid down that a party aggrieved of the decision passed without jurisdiction could raise that controversy before the appellate forum, in the same hierachy and if appellate forum comes to the conclusion that the decision so made was without jurisdiction, it can set aside the judgment on the ground of illegal assumption of jurisdiction leaving the option with the concerned authorities to have the matter decided by the original forum of competent jurisdiction and that on the basis of wrong exercise of jurisdiction by the trial Court its judgment could not be assailed before any appellate forum other than the one prescribed under the law, against the judgment of the Court of first instance.
12. In view of the above discussion, I am of the opinion that the instant appeal is not competent before this Court which is accordingly dismissed in limited. Learned counsel for the appellants has requested that original documents filed along with the memo. Of appeal may be returned to him, as he intends to file the same with memo. of appeal before the competent forum. This request is allowed. Original documents filed with the memo. Of appeal may be returned to the learned counsel for the appellants, after keeping on record, Photostat copies thereof.
Appeal dismissed.
1999 P Cr. L .1 1640 [Peshawar] Before Jawaid Nawaz Khan Gandapur, J MUHAMMAD YOUNIS---Petitioner versus THE STATE---Respondent Criminal Miscellaneous Bail Petition No,173 of 1998, decided on 7th December, 1998.
Criminal Procedure Code (V of 1898)--- ----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4--- Bail, grant of--- Despite 20 grams of heroin having been allegedly recovered from the possession of accused in broad daylight in the presence of lot of people, police did not join any of them in the recovery proceedings, nor had made any effort in this regard---F.I.R. Had a cutting/overwriting regarding the weight of said heroin---Record did not show that the recovered material was sent to Chemical Examiner for analysis, nor any report in this behalf was available on the file---Reasonable grounds, thus, did not exist for believing that the accused was connected with the commission of the offence with which he was charged-- Bail was allowed to accused accordingly. [p. 1641] A, B & C Farooq Masood Ahmad for Petitioner.
S. Saeed Hassan Sherazi, Asstt. A.-G. For the State.
Date of hearing: 7th December, 1998.
' The petitioner, Muhammad Younus, stands charged for having committed an offence punishable under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, vide F.I.R. No,187, dated 29-8- 1998, registered at Police Station Saddar, Tehsil and District D.I. Khan. According to the prosecution.
Heroin powder, weighing 20 grams, was recovered from the possession of the petitioner by the D.F.C. Namely, Manzoor Ahmad.
2. Mr. Farooq Masood Ahmad, Advocate, learned counsel for the petitioner and Syed Saeed Hassan Sherazi, learned Assistant Advocate-General for the State present and heard. Record of the case perused with some degree of care.
3. Admittedly, the occurrence took place in broad daylight at a place where lot of people were present. However, the police failed to associate anyone of them with the recovery process. Beside this there is nothing on the file to suggest, even remotely, that the police officials, who had allegedly recovered the heroin powder from the possession of the accused/petitioner. Had made any effort to persuade or request the people present on the scene of occurrence, to witness the recovery process and that they had refused to oblige the police. Resultantly, ram of the considered view that the alleged recovery of 20 grams of heroin powder from the possession of the petitioner has become doubtful especially when there is a cutting/overwriting in the F.I.R. With regard to the weight of the heroin powder.
4. Additionally, the learned Assistant Advocate-General has admitted at the Bar and 'lightly so that there is nothing on the police/judicial file to show as to whether or not the "contraband narcotics" was sent for chemical analysis. He further, admitted that the chemical analysis report, if any, is not available on the police/judicial file to establish, prima facie, that the item recovered from the possession of the petitioner was heroin powder.
5. In the circumstances. I am of the view that reasonable grounds do not exist for believing that the petitioner is connected with the commission of offence charged with. Consequently, the petitioner is admitted to bail.
6. He shall be released forthwith provided he furnishes bail bonds in the sum of Rs,50,000 (Rupees fifty thousands) with two sureties, each in the like amount to the satisfaction of the Additional Registrar of this Court.
7. The Additional Registrar shall see that the sureties are respectable persons, hail from the settled area of N.-W.F.P. And are men of means having sufficient property in their names. The Additional Registrar shall obtain the copies of the property documents/National Identity Cards of the sureties and place the same on this file for record.