2002 P Cr (PLP)

EJAZ AFZAL KHAN, J.

Before the hearing of appeal and murder reference, the learned counsel for the respondents raised a preliminary objection about their maintainability on the ground that once the appellant was charged under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the appeal and the murder reference would lie before the Federal Shariat Court notwithstanding the acquittal of the appellant, in view of the provisions contained in section 24 of the Ordinance and judgments of the Honourable Supreme Court rendered in the cases of Muhammad Abbas v. The State 1984 SCMR 129, Zafar Iqbal and others v. The State 1984 SCMR 167, Tajuddin v. The State 1984 SCMR 506 and Shamsuddin v. The State in Criminal Suo Motu No, l of 1995.

2. While replying the objection raised by the learned counsel for the respondents, the learned counsel for the convict-appellant contended that the appeal and the reference to the Federal Shariat Court would lie only when a person has been convicted under the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. In this case, he contended that the appellant has been sentenced to death under the provisions of the P.P.C. and not under the provisions of the Ordinance, therefore, the appeal as well as the murder reference would lie in the High Court. He by distinguishing the case of Muhammad Abbas and another v. The State (supra) contended that appeal to the Federal Shariat Court, in that case, was made, because the appellant therein was sentenced under the provisions of Ordinance (VII of 1979). With regard to the case of Zafar Iqbal and others v. The State (supra), the learned counsel contended that in that case the appeal against conviction on the charge of 354, P.P.C. was filed in the High Court whereas appeal against acquittal on the charge under the Ordinance was filed by the complainant before the Federal Shariat Court, therefore, the latter out of propriety and t9 obviate the possibility of conflicting judgments called of the appeal of the convict filed in the High Court and disposed of the two together. Similarly by distinguishing the judgment of Tajuddin v. The State (supra) the learned counsel for the appellant contended that it was an order of acquittal, in a case involving offences under Ordinance (VII of 1979) that an appeal was filed to the Federal Shariat Court.

3. We have carefully considered the arguments of the learned counsel for the parties and also had the benefit of seeing the judgments cited at the Bar. Before we proceed to attend this aspect of the case it is worth while to reproduce the provisions governing the filing of appeal from an order under any of the provisions of this Ordinance which is reproduced as under:-- "

24. Application of Code of Criminal Procedure, 1898.

(1) The provisions of the Code of Criminal Procedure, 1898 shall apply, mutatis mutandis' in respect of cases under this Ordinance. Provided 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 to award punishment therefore be convicted and punished for that offence. Provided further that offence punishable under section 9 or section 17 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 under either of the said section or from an order under any ether provision of this Ordinance which imposes a sentence of imprisonment for a term exceeding two years, shall lie to the Federal Shariat Court."

5. A perusal of the above quoted provisions in general and its proviso in particular would leave no manner of doubt that an appeal to the Federal Shariat Court shall lie only when an order either by a Court of Session or a Magistrate authorized under section 30 of the Cr.P.C., imposing a sentence of imprisonment, for a term exceeding two years has been passed. In this case no order imposing a sentence of imprisonment for a term exceeding two years has been passed under the Ordinance, therefore, both the appeal against conviction and the murder reference under section 374, Cr.P.C. are maintainable. The judgments cited at the Bar by the learned counsel for the respondents are not relevant to the present controversy and have, therefore, been rightly distinguished by the learned counsel for the appellant. The judgment rendered in the case of State v. Pirak 1997 PCr.LJ 1900 (Quetta), relied upon by the learned counsel for the respondents, during the course of arguments, is also of no consequence at all as it is against the very statute and it is needless to mention that where meanings and terms of section are clear even a long and a uniform course of interpretation may be overruled if it is repugnant to the very statute. The judgment of the Honourable Supreme Court rendered in Criminal Suo Motu No.1 of 1995 in the case of Shamsuddin v. The State (Jail Appeal No.236 of 1993) was brought to our notice wherein the reduction of sentence by the High Court on appeal in a case involving offences under sections 394/324/326, P.P.C. was held to be coram non judice too will not advance the case of the respondents because imposition of sentence in that case under section 394, P.P.C. shall be deemed to be a punishment imposed under section 20 of the Ordinance. We, therefore, have no hesitation to hold that the appeal and the murder reference are competent and. maintainable in this Court. N.H.Q./351/P Order accordingly.