IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Jail Appeal No. 25 of 2021
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
1. For orders on M.A.No.269/2021
2. For hearing of main case
20.01.2021
Mr. Muhammad Iqbal Awan, DPG
-.-.-.-.-.
Muhammad Irshad appellant has filed this Jail Appeal
against the judgment 21.12.2020, passed by learned I-Additional Sessions Judge
Karachi East whereby, appellant has been convicted under section 364-A PPC and
sentenced to death. Appellant was also found guilty of offence under section
10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced
to death. Appellant was also convicted under section 302(b) PPC and sentenced
to death as Tazir. Appellant has been directed to pay compensation of Rs.3
Million to the legal heirs of deceased under Section 544-A Cr.P.C. In case of
default in payment of compensation, he was ordered to suffer S.I for six months
more. Trial Court has also made reference to this Court for confirmation of
death sentence.
2. We
issued notice to learned Prosecutor General Sindh to argue on the point of
jurisdiction of this Court to hear the instant Jail Appeal.
3. We have
heard learned D.P.G for the state and perused the record. Appellant has filed instant jail appeal before this Court, under
misconception that the appellant has been convicted and sentenced under the Offence
of Zina (Enforcement of Hudood) Ordinance 1979 as well as under Pakistan Penal
Code 1860. Undisputedly, the charge against the appellant was framed under
Sections 302/364-A/109/34 PPC and Section 10(2) of Offence of Zina (Enforcement
of Hudood) Ordinance 1979 and after full-fledged trial he was convicted under
Sections 364-A, 302(b) PPC and under Section 10(2) of Offence of Zina
(Enforcement of Hudood) Ordinance, 1979 and sentenced to death as stated above.
The Honourable Supreme Court in the case reported as Muhammad Abbas and another
v. The State (1984
“8. The next objection was in regard to the competency of the
reference before the Federal Shariat Court, as according to learned counsel the
reference for confirmation of the death sentence on a murder charge could lie
only before the High Court. In this connection, he pointed out that in fact an
appeal (Criminal Appeal No. 171 of 1983) had already been preferred before the
High Court and was still pending there. As the trial by the Court of Session
under the provision of the Ordinance was competent, the appeal would lie only
before the Federal Shariat Court in view of the fourth proviso to section 20 (P
L D 1967 S C 425) and a reference for confirmation of the death sentence, to
that Court would be competent under subsection (1976 P Cr. L J 545) of the said
section. The objection too had been rightly rejected by the Federal Shariat
Court.”
4. In
the case of Muhammad
Sharif v. The State (PLD 1999 SC 1063) it was held by the Honourble Supreme
Court that appeal against acquittal under section 417, Cr.P.C. arising out of
Hudood Law shall be competent before the Federal Shariat Court. In the
case of Khizar Hayat v. Noor and others (2004
5. Section
20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, also provides
that an appeal against order of the Court of Session shall lie to the
Federal Shariat Court. Appellant
was convicted under the said Ordinance, hence this Court has no jurisdiction to
try the instant appeal.
6. For
the foregoing reasons, Criminal Jail Appeal No. 25/2021, filed before this
Court is not competent, which is transferred to the Honourable Federal Shariat
Court of Pakistan for disposal in accordance with law. The office is directed
to send this appeal along with record of the case to the Registrar of Federal
Shariat Court as per Rules.
JUDGE
JUDGE