1. This appeal under section 417, Cr.P.C. is directed against the acquittal order dated 27-3-2002 passed by the learned 1st Additional Sessions Judge, Jacobabad acquitting respondents Nos,2 to 5 under section 265-H(i), Cr.P.C. in Sessions Case No,120 of 2001 under Section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sections 314, 324, 365, 148, 149, P.P.C.
2. An objection has been raised by the office regarding the jurisdiction of this Court to entertain and decide this appeal in view of the exclusive jurisdiction of the Federal Shariat Court. Learned counsel was asked to meet this objection in view of the bar contained in Article 203-DD of the Constitution and the remedy provided under section 24 of Ordinance VI of 1979, according to which it is the exclusive jurisdiction of the Federal Shariat Court as an appeal against an order under section 9 or Section 17 of Ordinance VI of 1979, or under any other provisions of the said Ordinance which imposes a sentence of imprisonment for a term exceeding two years, shall lie to the Federal Shariat Court.
3. Mr. Muhammad Nawaz Chandio, learned counsel for the appellant argued that an appeal against acquittal is different from an appeal against conviction and Article 203-DD of the Constitution does not apply to appeals against acquittals as the word "acquittal" does not find place in the said Article of the Constitution as such this Court has jurisdiction to entertain and decide this appeal. Mr. Sher Muhammad Shar learned Assistant A.G. stated that the view taken by Mr. Muhammad Nawaz Chandio is .not based on correct appreciation of the legal position and in fact the jurisdiction lies with the Federal Shariat Court.
4. Messrs Abdul Razzak Soomro and Ali Nawaz Ghanghro senior advocates at Larkana were requested to appear as Amicus Curiae and to assist the Court on this legal aspect of the matter.
5. In support of his contentions Mr. Muhammad Nawaz Chandio has placed reliance on the cases Muhammad Hayatullah Khan and others v. Federal Land Commission (PLD 1977 Lahore 166) and Nazak Mir v. The State (1995 P.Cr.L.J 724) to show that Ordinance VI of 1979 has not taken away the appellate powers of the High Court which are still intact. Unfortunately both the reports are not relevant to substantiate his contention. Referring to 2nd proviso to section 24 of the Ordinance Mr. Chandio has argued that an appeal before Federal Shariat Court lies against conviction and not against acquittal.
6. He has placed reliance on the case of .Mst. Shaheena Iqbal v. Federation of Pakistan (PLD 1998 Karachi. 266), which too has no relevance at all. The learned counsel has further argued that in the absence of any specific ouster High Court has jurisdiction to entertain, hear and decide an appeal against acquittal order passed in a case under section 17(3) Offence Against Property (Enforcement of Hudood) Ordinance, 1979.
7. Mr. Abdul Razzak Soomro learned Amicus Curiae has argued that under Article 203-DD of the Constitution read with section 24 of Ordinance VI of 1979, Federal Shariat Court has been given unfettered powers to entertain appeal from an order under section 9 or 17 of the Ordinance or from an order under any other provision of law under the said Ordinance, which imposes a sentence of imprisonment for a term exceeding two years. Referring to the case of Muhammad Hussain v.
8. Muhammad Ramzan (PLD 1982 FSC 11), Mr. Soomro has argued that it has been clarified that the connotation "order" in Hudood cases with reference to appeal is not limited to appeals against conviction only but it means an order finally disposing the case, as such an order of acquittal stands fully covered within the connotation "order". Mr. Soomro has referred to various other reports from various Courts where appeals against acquittal were heard and decided by the Federal Shariat Court or the Shariat Bench of the Supreme Appellate Court. He has drawn my attention to the case of Muhammad Riaz Ahmed v. Ajmal Hussain & others (PLD 1983 SC (Shariat Bench) 233), decided by 5 Honourable Judges of Supreme Court (Shariat Bench) wherein it has been held with reference to section 20 of Offences Against Zina (Enforcement of Hudood) Ordinance VII of 1979, that the provisions of Criminal Procedure Code apply mutatis mutandis in respect of the cases under the said Ordinance and with reference to the appellate forum under 'Section 417, Cr.P.C. which deals with appeals in, case of acquittal, the connotation " High Court" has been held to mean "Federal Shariat Court". He has also cited the case The State v. Badlo Gosh alias Galu Fakir &.
9. Another (1999 P.Cr.LJ 416) which was an appeal against acquittal in a case under section 17(3)
10. Offences Against Property (EHO) Ordinance VI of 1979, while dismissing the appeal on the ground that it was filed by an Assistant Advocate General who was not competent to do so, it was held that an appeal against acquittal, even otherwise was to be filed before Federal Shariat Court. Mr. Abdul Razzak Soomro has also referred to the 'case reported as The State v. Pirak (1997 PCr.LJ 1900) wherein a Division Bench of the Quetta High Court has held that where a case is registered under the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 irrespective of the fact whether conviction is awarded or acquittal is made, the appeal shall lie to Federal Shariat Court except in those cases where conviction is less than 2 years. Learned counsel has also invited my attention to the case The State v. Shahbaz Khan (1998 PCr.LJ 1229) where a Division Bench of this Court after taking into consideration the impact of Articles 3, 4, 8 and 27(I) of the Prohibition Order, has held as under:- "12. In view of the above we would sum up our conclusion as to the import of Article 27(I) of the Prohibition (Enforcement of Hudood) 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.
11. (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.
12. (Underlining is mine).
13. (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..
14. (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."
15. Since offences under section 17(3) of the Offences Against Property (Enforcement of Hudood)
16. Ordinance VI of 1979 is also triable by the Sessions Court like Article 8 of the prohibition order, hence the rule laid down at serial No,(ii) above, shall stand attracted on all fours. Thus an appeal against. an order of conviction or acquittal relating to offence under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 can only be preferred before the Federal Shariat Court which Court has the exclusive jurisdiction in such matters.
17. To substantiate his contention further the learned amicus curiae has also drawn my attention to the cases of Sultan Ahmed v. Khursheed Begum and 2 others (2001 PCr.LJ F.S.C. 884) and The, State v. Abdul Ghafoor Khan Niazi and another (2000 PCr.LJ 7) where acquittal appeals were entertained and decided by the Federal Shariat Court. Mr. Soomro learned Amicus Curiae has therefore, ' concluded that in view of the case of law cited above an appeal against an Order of acquittal stands covered within the meaning of word "order" as used in section 24 of Ordinance VI of 1979 Mr. Ali Nawaz Ghanghro advocate while adopting the arguments of Mr. Abdul Razzak Sootnro Advocate has referred to the case of Muhammad Hussain v. Muhammad Ramzan (PLD 1987 FSC 11) to show that appeals against acquittal in such cases, are to be filed before Federal Shariat Court and the said Court has exclusive jurisdiction to entertain and heat' such appeals. Mr. Sher Muhammad Shar, learned Assistant A.G. is also of the same view as expressed by Messrs Abdul Razzak Soomro and Ali Nawaz Ghanghro, Advocates.
18. I have considered the arguments advanced by Mr. Muhammad Nawaz Chandio learned counsel for the appellant, Mr. Sher Muhammad Shar learned A.A.-G. and Messres Abdul Razzak Soomro and Ali Nawaz Ghanghro Advocates who appeared as amicus curiae. After going through Article 203- DD of the Constitution of Islamic Republic of Pakistan, 1973, section 24 of Ordinance VI 1979 and judgments cited by the learned Amicus Curiae, I am also of the considered view that an appeal against an acquittal Order in a case tried under section 17(3) of Ordinance VI of 1979 also stands covered under Section 24 of the said Ordinance read with Article 203-DD of the Constitution and it is the exclusive jurisdiction of the Federal Shariat Court to entertain, hear and decide appeals in such cases F.I.R. in this case was registered under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance (VI of 4.; 1279), charge was also framed under that section and accused were tried for the said charge. The result of the trial shall not change the jurisdiction of the Court. The view taken by Mr. Muhammad Nawaz Chandio is not based on correct appreciation on law hence liable to be ignored. This appeal is dismissed being not maintainable before High Court. However, the appellant may approach the Court of competent jurisdiction, if so advised and that Honourable Court may consider the point of limitation sympathetically in view of the pendency of appeal before a wrong forum. Orders accordingly. I shall be failing in my duties if I do not place on record my thanks and appreciation of both the learned counsel who appeared as Amicus Curiae.