1. ' The aforesaid appeal has been filed by Appellant/Convict Muhammad Yaseen in a Criminal Appeal No,45 of 2001 in which Mr. Ali Ghoar Masroof had filed power on behalf of the appellant Muhammad Yaseen. The appellant Muhammad Yaseen was convicted by the learned 1st Additional Sessions Judge, Karachi, Central under section 395, P.P.C. And to undergo. R.I. For 7 years and also imposed a fine of Rs,50,000 and in case of failure to make the payment of fine, he shall undergo R.I. For 2 years more.
2. ' Mr. Abbas Ali, learned Additional Advocate-General, Sindh objected to the tiling and the maintainability of the aforesaid criminal appeal in this Court and submitted that the appeal was misconceived on the ground that this Court was not an Appellate forum to entertain the aforesaid criminal appeal and the same ought to have been filed before the Federal Shariat Court in view of section 24 of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979. In support of his contention the learned A.A.-G. Placed reliance on the cases (i) Nazuk Mir v. The State 1995 PCr.LJ 724, (ii) Manzoor v. The State 1996 PCr.LJ 475 and an order, dated 28-8-1998 passed by a learned Single Judge of this Court in Criminal Appeal No,9 of 1998 Ref: Mehtab Shah v. The State.
3. ' Mr. Ali Gohar Masroor, learned counsel for the appellant in the above criminal appeal submitted that the appellant/accused was convicted by the 1st Additional Sessions Judge, Karachi, Central under section 395, P.P.C. Though the appellant had been tried for an offence under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and as such section 24 of the said Ordinance would not be applicable to the facts of the case and appeal against the conviction and sentence would lie before this Court. He further submitted that in deciding the forum of appeal the mute point to be considered by the law. Statute for which appellant/accused was convicted.
4. He further submitted that if an appellant/accused was convicted for an offence defined in Pakistan Penal Code and was awarded sentence provided by a section of P.P.C., then the case would not be said to have proceeded under the provisions of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and would clearly fall beyond the scope of section 24 of the Offences Against Property) Enforcement of uh dood) Ordinance. In support of his contention he placed reliance on the cases of (i) Haji Muhammad Aslam Khan v. Muhammad Aslam and another (1990 SCM R 211 (ii) Khushi Muhammad alias Bogi v. The State PLD 1986 SC 13, (iii) Sadiq Shah and another v. The State 1989 PCr.LJ 1330, (iv) Manzoor v. The State (1996 PCr.LJ 475), (v) The State v. Muhammad Yakoob (1997 PCr.LJ 528) (vi) Liaquat Ali and others v. The State (PLD 1989 Kar. 481) and (vii) a Judgment, dated 19-4-2001 of this Court in Criminal Appeal No, 161 of 2000 ref; Farook v. The State.
5. 'I have minutely considered the arguments advanced by Mr. Ali Gohar Masroof, learned counsel for the appellant and Mr. Abbas Ali, learned A.A.-G and have also perused the case law relied upon by the learned counsel for the parties in support of their respective contentions. Before proceedings to make any observation at the outset it may be pointed out that the facts of the cases (i) Khushi Muhammad alias Bogi v. The State (PLD 1986 SC 13) and (ii) Haji Muhammad Aslam v. Muhammad Aslam and another (1990 SCM R 2110 were absolutely different and distinguishable from the facts of the case in hand and, therefore, the observations made and views expressed therein are not applicable to the facts of the case. It will be pertinent to note that the appellant Muhammad Yaseen was challaned under section 17(3), Offence Against Property (Enforcement of Hudood)
6. Ordinance, 1979. Since the appellant challaned for an offence punishable under the Hudood Ordinance, the proceedings conducted against him before the trial Court would be deemed to be proceedings under the aforesaid Hudood Ordinance. In challan wherein the accused is charged with an offence punishable under any of the Hudood Ordinance then notwithstanding the fact that an offence defined in the P.P.C. Is also mentioned therein thus charging the accused with an offence defined and punishable under the provisions of Pakistan Penal Code, the trial of such an accused would be deemed to have been conducted under the provisions of the Hudood Ordinance. This is so, because the Hudood Ordinance relating to the Offence Against Property is Special Law dealing with the offence relating to the offences of theft, extortion, robbery, dacoity, etc. Whereas the Pakistan Penal Code is a general law, which defines numerous offences relating to Offences Against the Armed Forces, Offences against the public tranquility, offences relating to coins and Government stamps, offences affecting human body, offences against property, criminal breach of trust, cheating etc. It is an admitted principle of law that in case where both special law and general law are applicable then preference would be given to the provisions of special law. In the aforesaid case, challan had been submitted under the provisions of aforesaid Hudood Ordinance. Since in respect of the Offences Against Property, Special law has been promulgated the proceedings would be required to be conducted under the Special law. It would be absolutely immaterial as to under which law accused is convicted. In view of the provisions of section 20 of the Offence Against Property (Enforcement of Hudood) Ordinance, according to which the punishment for Harrabah liable to be Tazir would be same as provided by the Pakistan Penal Code for the offence of dacoity, extortion and the second proviso to section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. It is, thus, abundantly clear that the conviction of the accused would not be material for determining whether the trial proceeded under the provision of any one of the aforesaid h idood Ordinance or of the Pakistan Penal Code. This issue would be determined by mentioning of the statute offence in the challan submitted against the accused. If the accused has been sent to face trial for an offence which is defined and punishable under the aforesaid Hudood Ordinance then notwithstanding the fact that the accused was not convicted under the aforesaid Ordinance, but under the provisions of P.P.C., a trial to be deemed to have been conducted under the provision of Hudood Ordinance. Similarly, where the accused was challaned for offence under Hudood Ordinance and was subsequently convicted under the provision of Pakistan Penal Code, trial would be deemed to have been conducted under the provisions of Hudood Ordinance. In both the circumstances, where the sentence is more than 2 years the forum for filing appeal by the convict accused against his conviction would be Federal Shariat Court, as contained in section 24 of Offence Against Property (Enforcement of Hudood) Ordinance. The above propositions find support from the views and the observation made by the Lahore High Court in the case of (i) Manzoor v. The State (1996 PCr.LJ 475)
(ii) Falak Sher v. The State (1996 PCr.LJ 804), (iii) Order of this Court in Criminal Appeal No,14 of 1998 Qurban Ali v. The State decided on 18-8-1998 (iv) Order, dated 28-8-1998 of this Court in Criminal Appeal No,9 of 1998 Mehtab Shah v. The State and an order, dated 11-11-1998 of this Court in Cr. Jail Appeal No,03 of 1996 Rajib Gadhi v. The State.
7. ' Upon the above discussion, I have come to the irresistable conclusion that appeal is not maintainable before this Court and ought to have been filed before the Federal Shariat Court.
8. Accordingly, the Memo. Of appeal is returned to the appellant for presentation to the proper Court.
9. ' The aforesaid appeal stands disposed of in the above terms.
10. Appeal dismissed/