' The necessary facts giving rise to the present appeal are that the appellant had filed a private complaint before the Area Magistrate of Police Station City Khanewal on 27-6-1995 for offences under sections 392/34/148/149, P.P.C. And section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The said private complaint was then sent up by the Area Magistrate to the Court of Session, Khanewal where the learned Sessions Judge, Khanewal entrusted the same to a learned Additional Sessions Judge, Khanewal for further, proceedings. The learned Additional Sessions Judge, Khanewal seized of the appellant's private complaint directed a Magistrate, Section 30, Khanewal to hold an inquiry under section 202, Cr.P.C. During the said inquiry statements of four witnesses were recorded by the Inquiry Magistrate and subsequently, a report was submitted by him to the effect that the appellant's private complaint prima facie disclosed involvement of the accused persons alleged to have committed the offences in question. At that stage the learned Additional Sessions Judge seized of the private complaint felt embarrassed in hearing the said matter whereafter the same was taken up for consideration by the learned Sessions Judge, Khanewal himself. Vide order, dated 25-6-2000 the learned Sessions Judge, Khanewal found sufficient grounds for proceeding against the accused persons, including respondent No,1 herein, and summoned them to face a trial in that regard. On 25-5-2001 an application under section 265-K, Cr.P.C. Was submitted by respondent No,1 before the learned Sessions Judge, Khanewal and on the same date, i,e, 25-5-2001 the learned Sessions Judge, Khanewal accepted the said application of respondent No,1 and acquitted him. That order passed by the learned Sessions Judge, Khanewal on 25-5-2001 has been assailed by the appellant before this Court through the present appeal.
2. At the outset Mr. Abdul Sattar Goraya, Advocate, who is present before this Court on a watching brief on behalf of respondent No,1, has raised an objection before this Court qua maintainability of the present appeal. According to him the charge in this case includes a head under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and, therefore, this appeal against acquittal can be' filed only before the Honourable Federal Shariat Court and not before this Court. In this connection he has placed reliance upon the cases of Muhammad Afzal v. The State and another PLD 1989 Lah. 272, Muhammad Hanif and others v. Mst. Shama Mai 1986 PCr.LJ 746, Muhammad Iftikhar v. The State 1991 PCr.LJ 2069, The State v. Sher Abbas Khan and 2 others 1990 PCr.LJ 1702, Sajjad Hussain and 2 others v. The State PLD 1989 FSC 50, Allah Rakha and others v.
Federation of Pakistan and others PLD 2000 FSC 1 and Haji Pir Jan v. Muhammad Yaqoob and 9 others 1997 PCr.LJ 1236.
3. As against that the appellant has maintained that the present appeal is quite competent and maintainable before this Court because till 25-5-2001, when the impugned order had been passed by the learned Sessions Judge, Khanewal, a charge had not been framed in this case and, therefore, an appeal against the said order could only have been filed before this Court and not before the Honourable Federal Shariat Court. Reliance has been placed by the appellant in this respect upon the case of Nizam-ud-Din v. The State 1999 PCr.LJ 1761.
4. In order to decide this controversy about maintainability of the present appeal before this Court the crucial facts relevant to the same are that the private complaint filed by the appellant contained an allegation regarding an offence under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and on the basis of the same allegations respondent No,1 and his co-accused had been summoned by the learned Sessions Judge, Khanewal on 25-6- 2000 to face a trial. The impugned order of acquittal under section 265-K, Cr.P.C. Had been passed by the learned Sessions Judge, Khanewal on 25-5-2001 and the present appeal had been preferred by the appellant before this Court on 30-6-2001. During the pendency of this appeal before this Court the learned trial Court framed a charge in the appellants' private complaint on 17-10-2001 and the charge so framed against the accused party included a head under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
5. It had been held by the Honourable Supreme Court of Pakistan in the case of Muhammad Abbas and another v. The State 1984 SCMR 129 and by this Court in the case of Ghulam Abbas v. The State 1988 PCr.LJ 275 that if the charge framed in a criminal case includes an offence under any of the Hudood Laws then an appeal in case of conviction as well as of acquittal in such a case is to be filed before the Honourable Federal Shariat Court and not before a High Court. Those precedents are, however, not applicable to the case in hand inasmuch as when the impugned order was passed by the learned trial Court in the present case no formal charge had yet been framed by the learned trial Court. The precedent cases relied upon by the learned counsel for respondent No,1 are also not relevant to the controversy in hand inasmuch as in all those cases a charge had indeed been framed against the accused persons under Hudood Laws and it was for that reason alone that it was held in those cases that an appeal in those cases was maintainable only before the Honourable Federal Shariat Court and not before a High Court. Even the precedent case relied upon by the appellant is not applicable to the facts of the present case inasmuch as in the said judgment a charge had been framed but the charge framed by the learned trial Court did not include any offence under the Hudood Laws and, thus it was held that an appeal was competent before the High Court and not before the Honourable Federal Shariat Court. The present case before this Court is distinguishable from all the abovementioned precedent cases relied upon by both the sides because in the present case the impugned acquittal of respondent No,1 had been recorded by the learned trial Court at a time when the charge had not even been framed. Thus the question before this Court is as to whether an acquittal of an accused, person at such a stage is appealable before this Court or an appeal against such an acquittal is to be preferred before the Honourable Federal Shariat Court.
6. After due consideration and deliberation I have reached a conclusion that the present appeal before this Court is not maintainable and that the same ought to have been preferred before the Honourable Federal Shariat Court and this conclusion is based upon the principle and essence of the decisions in the abovementioned precedent cases. All the precedent cases show that the question of maintainability of an appeal in this regard revolves around the charge framed in such a case. In the instant case the allegations levelled by the appellant included an allegation qua an offence under the Hudood Laws; the accused persons had been summoned by the learned trial Court to face a trial on the basis of the same allegations which, as already observed, included an allegation qua an offence under the Hudood Laws; and during the pendency of this appeal a charge has already been framed against the accused party which also includes a head under the Hudood Laws. Thus it shall be anomalous and absurd to hold that an acquittal of one of the accused persons recorded before the framing of the charge in this case can be challenged before this Court but any subsequent acquittal or conviction to be recorded in this very case vis a vis the other accused persons shall be challengeable only before the Honourable Federal Shariat Court. I am not ready to advance or accept an interpretation which produces a result that necessitates hearing of different appeals in the same case by different Courts. Thus in order to forestall such an eventuality and to ensure consistency of treatment as well as avoidance of contradictory judgments I feel that the appellant ought to approach the Honourable Federal Shariat Court with a challenge against respondent No,1's acquittal, if so advised.
7. As a sequel to the discussion made above this appeal is found to be not maintainable before this Court. The Office is directed to return the memorandum of this appeal to the appellant alongwith certified copies of the documents appended therewith after placing photo copies of the same on the present record.