' The appellants alongwith others were tried by the learned Sessions Judge, Attock on a complaint filed by Mst. Naveeda Shaheen, the applicant in Criminal Miscellaneous No,1052 of 2002, under section 10(4)/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 109, 201, 468 and 471, P.P.C. Now the learned Sessions Judge vide judgment dated 28-1-2002 proceeded to convict the appellants under section 354, P.P.C. And to sentence them to suffer one year's R.I.
Each and to pay a fine of Rs,5,000 each or in lieu to suffer one month's R.I. Each. Benefit of section 382-B, Cr.P.C. Was also granted. This criminal appeal was filed against the said conviction and sentence and was admitted to hearing on 28-2-2002. On 1-10-2002 Criminal Miscellaneous No,1052 of 2002 came up before this Court and was ordered to be heard alongwith this appeal.
2. Malik Rab Nawaz Noon, learned counsel for the said complainant lady informs that she had filed a Criminal Appeal No,49/I of 2002 which is pending in the learned Federal Shariat Court and is being adjourned as the records stand summ med by this Court in the said appeal. Learned counsel contends that since the appellants were charged and tried under the provisions of the said Ordinance of 1979, notwithstanding the fact that they were acquitted of the said charges and that they were convicted under section 354, P.P.C., this appeal would lie to the learned Federal Shariat Court where criminal appeal filed by his client is already pending. He relies on the cases of Qudratullah alias Rudhi v. Siddiq Ahmad and 17 others 1991 PCr.LJ 1520 and Muhammad Ilyas v. The State 1986 PCr.LJ 344. Mr. Basharatullah Khan, learned counsel for the appellants relies on the case of Attaullah v. Abdur Razzaq and another PLD 2002 SC 534 to urge that the appeal has been competently filed in this Court and can only be heard and decided by this Court and not by the learned Federal Shariat Court.
3. I have considered the contentions of the learned counsel for the parties in the said admitted factual background. Now the learned Federal Shariat Court stands constituted under' Article 203-C of the Constitution. Article 203-D defines the powers, jurisdiction and functions of the said learned Court. If I may say so, the said provision of the Constitution lays down what to my mind, is the original jurisdiction of the said learned Court. Now Article 203-DD vests the power of revision in the said learned Court whereby it has been empowered to call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purposes laid down in Article 203-DD. Now both the judgments relied upon by Mr. Rab Nawaz Noon, Advocate pertain to exercise of revisiohal jurisdiction and have obviously been decided in the light of said Article 203-DD of the Constitution. Now in the said case of Attaullah being relied upon by Mr. Basharatullah Khan, Advocated, the petitioner therein was tried under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 but was convicted and sentenced to death under section 302/34, P.P.C. A reference was made by the learned Sessions Judge for confirmation of the said sentence to the High Court and the said petitioner also filed appeal against the said conviction and sentence in the Nigh Court. It was the complainant party who took an objection that the appeal is not competent before the Honourable High Court and ought to have been filed in the learned Federal Shariat Court. This objection was overruled by the High Court. Now somehow or the other it was the said petitioner who challenged the said decision before the Honourable Supreme Court and leave was refused.
4. Now in the case before me the position is that the petitioner was tried inter alia under sections 10(4)/11 of the said Ordinance, 1979 but was convicted under section 354, P.P.C. Now section 20 of the said Ordinance, 1979 provides that the provisions of Code of Criminal Procedure, 1898 shall apply mutatis mutandis in respect of cases the said Ordinance. According to the second proviso to section 20(1) the offence punishable under the said Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court. Now it is under the said provisions that the complainant lady has filed criminal appeal against the said judgment of the learned Sessions Judge, Attock before the learned Federal Shariat Court. The first proviso to section 20(1) lays down 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 punish him thereafter, be convicted and punished for that offence.
5. A reading of the said section 20 of the said Ordinance, 1979 would thus show that offences punishable under the said Ordinance, 1979 are to be tried by a Court of Session. However, if commission of an offence different than the one under the said Ordinance is proved subject to the conditions laid down in the said first proviso, a person can be convicted and punished for the offence by the said Court. An appeal is to lie to the learned Federal Shariat Court from the order to be passed by a Court of Session while trying an offence punishable under the said Ordinance.
6. Now in the present case the appeal against acquittal of the appellant in the said offence under the said Ordinance, 1979 stands filed in the learned Federal Shariat Court while the present appeal has been filed against the conviction under section 354, P.P.C. In this Court under section 410, Cr.P.C.
The further position, to my mind, is that whereas the Federal Shariat Court does have the jurisdiction by virtue of the said proviso to section 20 to pass an order in respect of an offence other than the offences under the Ordinance, this Court would not be having jurisdiction to hear and to decide the appeal filed by the complainant lady before the learned Federal Shariat Court.
7. In the above circumstances, I allow the said application and direct the office to send the records requisitioned from the Court of learned Sessions Judge, Attock to the learned Federal Shariat Court alongwith this appeal and the appellants shall now appear before the ' learned Federal Shariat Court as and when called upon to do so, through their learned counsel. A copy of this order be sent to the learned Federal Shariat Court.