IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Appeal No. S- 07 of 2023.
Appellant: Akbar Jatoi, through Mr. Muhammad Afzal Jagirani, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Mr. Ahsan Ahmad Quraishi, Advocate (amicus-curiae).
Date of hearing: 15.03.2024.
Date of order: 18.04.2024.
Judgment
Muhammad Saleem Jessar, J: Through instant appeal, appellant Akbar son of Gaman alias Hazoor Bux Jatoi has impugned the judgment dated 24.12.2022 passed by learned Additional Sessions Judge-V, Shikarpur, vide Sessions Case No. 137 of 2022, Re; State v. Akbar Jatoi, arisen out of F.I.R No. 08 of 2021 registered with P.S Abad-Milani, for offences punishable under Sections 395, 397, 337-A (i), 337-F (iii) and 337-H (2) P.P.C. The trial Court framed charge agaisnt appellant under Articles 17 (2) and 17 (3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979. However, after recording evidence as per the charge the learned trial Court convicted and sentences the appellant offense under Section 397 P.P.C and sentenced to undergo rigorous imprisonment for seven years.
2. This appeal was admitted for regular hearing on 27.02.2023, thereby notice was issued to learned Add. P.G., R&Ps were called and Paper Book was also directed to be prepared.
3. Before proceeding with the appeal, this Court vide Order dated 08.03.2024 called upon learned counsel for the appellant to satisfy the Court, as to jurisdiction of this Court, whether the appeal in hands would lie before this Court or before the Federal Shariat Court in view of the fact that the case/ F.I.R was registered for the offences under P.P.C. i.e. 395, 397, 337-A (i), 337-F (iii) and 337-H (2) P.P.C., while the “charge” was framed under Hudood Laws i.e. under Articles 17 (2) and 17 (3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979, whereas appellant was convicted under provisions of P.P.C. Further, to assist the Court on this legal point Mr. Ahsan Ahmad Quraishi, Advocate was appointed as Amicus-Curiae.
4. Heard learned counsel for the appellant, learned D.P.G appearing for the State and learned Amicus-Curiae.
5. Learned counsel for the appellant re-iterates that the appeal would lie before this Court as the appellant has been convicted and sentenced under P.P.C. Mr. Ahsan Ahmad Quraishi, Advocate learned Amicus-Curiae is also of the opinion that since the F.I.R was registered and appellant was convicted under P.P.C, therefore, this Court is competent to entertain the appeal, hence it need not to be transferred to Federal Shariat court.
6. Conversely, learned D.P.G. contended that the appeal would lie before Federal Shariat Court, as the charge was framed under Hudood Laws. In support of his argument, he relied upon case of Ali Dino and another v. The State reported in 2017 P.Cr.L.J 578.
7. No doubt the F.I.R was registered under the provisions of P.P.C, however, charge agaisnt appellant was framed under Articles 17 (2) and 17 (3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979, and he was tried in consonance of the charge. And on conclusion of trial, the appellant was convicted and sentenced under the provisions of P.P.C, but before handing down the judgment the learned trial Court did not alter the charge. Besides, the sentence awarded to the appellant also exceeds two years, therefore, in my view the appeal would lie before Federal Shariat Court and not before the High Court. I am fortified with the dicta laid down by this Court in case of Juman and another v. The State reported in PLD 2016 Sindh 191, wherein it was held that, since the “charge” was framed under Hudood Laws and appellants were tried for the said “charges” namely, Hudood Laws, as such the “result” / “fate” of the trial shall not change the jurisdiction of the Court, but it is the “charge”, on basis of which the jurisdiction of the Court would be decided. It would be conducive and illustrative to reproduce the relevant paras from that judgment, which reads as under:
“From the perusal of record it appears that F.I.R. was lodged under Hudood Ordinance and charge was also framed under the provisions of Hudood Ordinance. It is also admitted that sentences have been awarded under the P.P.C, but the question remains that as to whether is it the sentence that determines the forum, or, is it the charge that decide the forum? In our humble view, legality it is the 'charge' that determines the forum. There is no cavil with the legal proposition that on account of non-availability of evidence satisfying the standard of proof as required under section 7 of the Ordinance, always sentence is to be inflicted by mentioning a section of P.P.C. within the meaning of section 20 of the Ordinance. Mere passing of the sentence under 'Tazir' is not determinative of the forum, the view can find support from bare reading of section 20 of Ordinance, which is reproduced as under:--
"Punishment for harrabah liable to ta’zir---Whoever commits harrabah which is not liable to the punishment provided for in section 17, or for which proof in either of the forums mentioned in section 7 is not available, or for which punishment of amputation or death may not be imposed or enforced under the Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code (Act XLV of 1860) for the offence of dacoity, robbery or extortion, as the case may be."
Needless to observe that as per the provisions of subsection (2) of section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 the sentence less than two years has been made appealable before the High Court. For ready reference, subsection (2) of section 24 of the Ordinance is reproduced:--
"2 (Provided further that an offence punishable under section 9 or section 17 shall be triable by a Court of Sessions and not by a Magistrate authorized under section 30 of the said Code and on appeal from an order under either of the said section 3 (or from an order under any provision of this Ordinance which impose a sentence of imprisonment for a term exceeding two years) shall lie to the Federal Shariat Court."
Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:-
"203DD. Revisional and other jurisdiction of the Court. (1) The Court may 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 purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."
In the of Muhammad Akbar v. State (2003 YLR 1339), the Honourable Federal Shariat Court has held as under:--
"After going through the Constitution, Hudood Laws and case-law, relied upon by the learned counsel in respect of the legal objection raised by the learned counsel for the appellant, we overruled the same and held that, in circumstances of a case where charge is framed against an accused under any provision pertaining to Hudood Laws, with or without any other section of P.P.C, and the trial Court comes to the conclusion that charge under the Hudood Laws could not be maintained for want of evidence or other reasons, and proceeds to convict him for any other offence under the provisions of P.P.0 and acquit him from charge under Hudood Laws, the appeal against that judgment would lie to the Federal Shariat Court. This jurisdiction is conferred upon Federal Shariat Court by the Constitution as well as the relevant enactments in Hudood Laws that still hold the field and cannot be taken away by any judgment of any Court unless the relevant provisions referred to above are duly amended. In this connection, firstly we would like to refer to Chapter 3-A of the Constitution of Pakistan hereunder Federal Shariat Court exercises its jurisdiction. Article 203-DD and sub-Article 2(a) to Article 203-F clearly defines a portion of the powers conferred upon it ,by the Constitution."
In the case of KARAMAT KHAN v. STATE (2002 PCr.LJ1868), the Hon'ble Federal Shariat Court held as under:-
"By now, it is well-settled that if a Court not possessed of jurisdiction to try a case, wrongly assumes jurisdiction and exercises power not vested in it, appeal from its decision would lie in the same manner as an appeal would like from a decision made with jurisdiction."
In the case of MUHAMMAD JUMAN v. STATE (2004 MID 278), this Court held as under:-
"I have given due consideration, to the arguments and have gone through the relevant Articles of Constitution of 1973. It is admitted position that the case pertains to offence punishable under the offences of Property (Enforcement of Hudood) Ordinance, 1979 as such the provisions of Articles 203-DD and 203-G of Constitution of 1973 are attracted which are as under:-
"203-DD.Revisional and other jurisdiction of the Court-(1) The Court may 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 purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such Court, and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail on his own bond pending the examination of the record."
Articles 203-G and 203-GG of Constitution of 1973 are also applicable in the case which read as under:--
203-G. Bar of jurisdiction----Save as provided in Article 203F, no Court of Tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court.
203-GG. Subject to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court."
In the case of MOULA BUX GELLO v. STATE (2002 YLR 2956), (Karachi), it was observed as under:-
"Since offences under section 17(3) of the Offences Against Property (Enforcement of Hudood) 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."
In the case of MUHAMAMD SAFEER v. STATE (2004 P.Cr.L.J.899), the Honourable Federal Shariat Court held as under:-
"Thereafter, in cases falling under Hudood Law, Revisional jurisdiction to examine correctness, legality or propriety of orders passed by Sessions Judge or Additional Sessions Judge, stood exclusively conferred on Federal Shariat Court any Revisional or inherent jurisdiction of High Court in such matters was taken away in Iqbal Hussain v. The State (PLD 1985 Lah.65 at 67).
The matter becomes clear and benefit of any ambiguity, if one peruses Article 203-G which outs the jurisdiction of all other Courts or Tribunal except Supreme Court of Pakistan to interfere with the judgment or decision of Federal Shariat Court in exercise of its powers under Chapter 3-A of the Constitution.
After going through Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973, section 24 of the Ordinance VI of 1979 and judgments cited above by the learned A.P.G, we are also of the view that both the appeal against acquittal order in a case tried under section 17(4) of the Ordinance, 1979 also stands covered under section 24 of the said Ordinance read with Article 203-DD of the Constitution and it is 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(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and charge was also framed under that section and appellants were tried for the said charges. The result of the trial shall not change the jurisdiction of the Court. The view taken by learned counsels for appellants is not based on correct appreciation of law, hence liable to be ignored.
8. The F.I.R of this case was registered for offence punishable under P.P.C., however, the “charge” was framed under the Hudood Laws and appellant was tried for the said “charges” i.e. under Hudood Laws, but ultimately the appellant was convicted under P.P.C and sentenced for the imprisonment exceeding two years, therefore, in view of cases of Juman and another and Ali Dino and another (supra), the appeal would lie before Federal Shariat Court. Accordingly, the office is directed to send this appeal along with its record (R&Ps), including paper-book etc. to the Federal Shariat Court through its Registrar. However, photostat set of the same be kept on record. The appellant, who is reported to be in jail, be informed accordingly through jail authorities.
Judge
Ansari