MIAN MUHAMMAD AJMAL, J.--Tbrough this petition under Article 185 (3) of the Constitution of Islamic Republic of Pakistan. 1973 the petitioner seeks leave to appeal against the judgment of the Peshawar High Court, Peshawar dated 16-5-2001, whereby Criminal Appeal No,259 of 1999 filed by him was dismissed, his death sentence Was confirmed and sentence of fine of Rs,1,00,000 was modified to compensation under section 544-A, Cr.P.C. Recoverable as arrears of land revenue and to be paid to the heirs of the deceased.
2. Brief history of the case is that on 8-7-1996 Altaf Shah, S.-I. (P.W.15) during patrol duty received an information that some body has been murdered at Saeed Abad. He went there, where Abdur Razaq complainant, lodged the report at 7-15 a.m. For snatching Rs,7/8 lacs from his brother Gharibullah deceased by unknown assailants and for killing him. After investigation, challan was submitted against Attaullah petitioner and his absconding co-accused in the Court of Additional Sessions Judge-I, Peshawar to face trial under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be called the Ordinance) read with section 302/34, P.P.C. The learned trial Judge on conclusion of the trial vide his judgment dated 13-9-1999 held that the evidence produced by the prosecution was not sufficient to prove the charge against the petitioner under section 17(4) of the Ordinance, however, it proved the charge against him under section 302/34, P.P.C. As Ta'zir and he was accordingly convicted and sentenced to death with fine of Rs,1,00,000 or in default thereof to suffer two years' R.I. On recovery, half of the fine was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Perpetual non-bailable warrants of arrest were ordered to be issued against the absconding accused Khan Muhammad, Ikhtiar Shah and Ikramullah who were declared proclaimed offenders. The petitioner challenged his conviction and sentence before the Peshawar High Court, Peshawar whereas the trial Court sent murder reference for confirmation of the death sentence awarded to the petitioner, which were decided vide judgment impugned herein as stated in para. 1 above.
3. Learned counsel for the petitioner contended that appeal against the judgment of the trial Court was not competent before the High Court as according to the F.I.R, petitioner was charged under section 17(4) of the Ordinance, however, he was acquitted of the said charge and was convicted under section 302/34, P.P.C. He argued that under subsection (5) of section 17 of the Ordinance, punishment awarded under subsection (4) of section 17 ibid cannot be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, i,e, the Federal Shariat Court and the Court of Session was not justified to forward the murder reference to the High Court for the confirmation of the death sentence.
4. On the order hand, learned counsel for the complainant submitted that the petitioner had taken contrary plea in the High Court as in reply to the preliminary objection raised by the complainant with regard to the competency and maintainability of the appeal of the petitioner before the High Court, it was asserted that appeal before the High Court was competent and maintainable and appeal to the Federal Shariat Court would only lie when accused is convicted and sentenced under the Ordinance. It was further urged that since the petitioner has been acquitted of charge under section 17(4) of the Ordinance and was convicted under section- 302/34, P.P.C., therefore, appeal before the High Court was competent. The High Court vide its detailed order dated 9-4-2001 overruled the preliminary objection of the complainant/respondent and held that the appeal and the Murder Reference were competently filed in the High Court and they were maintainable before it. The relevant paras. Of the said order are reproduced hereunder: "3. We have carefully considered the arguments of the learned counsel for the parties and also had the benefit of seeing the judgments cited at the bar. Before we proceed to attend this aspect of the case it is worth while to reproduce the provisions governing the filing of appeal from an order under any of the provisions of this Ordinance which is reproduced as under:--
24. Application of Code of Criminal Procedure, 1898.
(1) The provisions of the Code of Criminal Procedure, 1898, shall apply mutatis mutandis, in respect of cases under this Ordinance: 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 therefor, be convicted and punished for that offence: Provided further that an offence punishable under section 9 or section 17 shall be triable by the 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 sections or from an order under any other provisions of this Ordinance, which imposes a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court.
4. A perusal of the above-quoted provisions in general and its proviso in particular would leave no manner of doubt that an appeal to the Federal Shariat Court shall lie only when an order either by a Court of Session or a Magistrate authorized under section 30 of the Cr.P.C., imposing a sentence of imprisonment for a term exceeding two years has been passed. In this case no order imposing a sentence of imprisonment for a term exceeding two years has been passed under the Ordinance, therefore, both the appeal against conviction and the murder reference under section 374, Cr.P.C.
Are maintainable. The judgments cited at the bar by the learned counsel for the respondents are not relevant to the present controversy and have, therefore, been rightly distinguished by the learned counsel for the appellant. The judgment rendered in the case of State. v. Pirak (1997 PCr.LJ 1900) (Quetta), relied upon by the learned counsel for the respondents, during the course of arguments, is also of no consequence at all as it is against the very statute and it is needless to mention that where meanings and terms of section are clear even a long and uniform course of interpretation may be overruled if it is repugnant to the very statute. The judgment of the Hon'ble Supreme Court rendered in Criminal Suo Motu No,1 of 1995 in the case of Shamsuddin. v. The State (Jail Appeal No,236 of 1993) was brought to our notice wherein the reduction of sentence by the High Court on appeal in a case involving offences under sections 394/324/326, P.P.C. Was held to be coram non judice too will not advance the case of the respondents because imposition of sentence in that case under section 394, P.P.C. Shall be deemed to be a punishment imposed under section 20 of the Ordinance. We therefore, have no hesitation to hold that the appeal and the murder reference are competent and maintainable in this Court." The afore-quoted order was not assailed by the petitioner before this Court.
We hav e heard the learned counsel for the parties and have gone through the record of the case.
The petitioner could not take two contradictory pleas before the High Court and this Court with regard to the competency and maintainability of his own appeal filed by him in the High Court. In the High Court, he opposed the preliminary objection raised by the respondent regarding competency of his appeal before the High Court where it was asserted that appeal and the murder reference were competently filed in the High Court as he was acquitted of the charge under section 17(4) of the Ordinance but herein, he has taken a U-turn and argued that the High Court had no jurisdiction to hear his appeal and to confirm his death sentence as he was initially charged under section 17(4) of the Ordinance and that it was within the jurisdiction of the Federal Shariat Court to hear the appeal. We are not inclined to entertain petitioner's objection that his appeal before the High Court was not competent and appeal should have been filed before the Federal Shariat Court. It is well-settled that none can take two different stances on the same plea before two Courts, as approbation and reprobation cannot be allowed subsection (5) of section 17 of the Ordinance provides that appeal would lie to the Federal Shariat Court when conviction and sentence has been recorded by the trial Court in an offence under the Ordinance. For convenience sake subsection (5) of section 17 of Ordinance is reproduced as under:-- 17 (1) ........................................................... (3)............
(2) ................................................................. (4)............
"17(5). Punishment under subsection (3) except that under the second proviso thereto or under subsection (4), shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, and if the punishment be of amputation, until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment."
In the instant case no punishment has been awarded to the petitioner under the Ordinance as he was acquitted of the charge under the Ordinance, therefore, he could not file appeal before the Federal Shariat Court. He was convicted and sentenced under section 302/34, P.P.C. As such the Sessions Court after recording conviction and sentence of death, had to send reference for confirmation of death sentence to the High Court under section 374, Cr.P.C, which is reproduced below:- "374. Sentence of death to be submitted by Court of Session.--When the Court of Session passes sentence of death the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court."
As stated above, the petitioner has been sentenced to death under section 302/34, P.P.C., therefore, the Sessions Court was bound under the law to send the reference for confirmation of death sentence to the High Court and in such circumstances the petitioner rightly filed an appeal under section 410, Cr.P.C. To the High Court against his conviction and sentence.
5. Even on merits, the petitioner has no case. The prosecution has proved its case through cogent evidence particularly by the testimony of Awal Gul P.W.1., an employee of the deceased who was working as salesman with him and had no enmity to falsely depose against the petitioner. He was subjected to a lengthy cross-examination but nothing beneficial to the defence could be extracted from him. The High Court has appreciated the evidence in its true perspective, therefore, we do not find any reason to disagree with it. Consequently, this petition is dismissed and