2015 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

Through instant appeal, appellants have challenged judgment dated 28th January, 2014 passed by Additional Sessions Judge Tando Muhammad Khan in S.C. No. 383 of 2009 (Re-The State v. Ahmed and 3 others) whereby appellants were convicted under sections 394, 34, P.P.C. and sentenced to suffer RI for 5 years, coupled with fine of Rs. 10,000, in case of default further SI for 6 months.

2. Record reveals that by orders dated 21-2-2014 and 11-7-2014 counsel for appellants was put on notice to satisfy the maintainability of instant appeal before this court.

3. Learned counsel for appellant has, inter alia, contended that although charge was framed under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 394, 504 and 34, P.P.C. but after full dressed trial, appellant was convicted under P.P.C. sections only, therefore, this court has got jurisdiction. In support of his contention, he has relied upon 2009 PCr.LJ 747, 1999 PCr.LJ 1761, 2012 PCr.LJ 1491 and case of Attaullah PLD 2002 SC 534.

4. Conversely, learned counsel for complainant as well as APG has contended that this court has no jurisdiction and appeal lies before Federal Shariat Court. In support of such contentions reliance is made as 1997 PCrLJ 1900, 2000 PCr.LJ 1155, PLD 2003 Kar. 441.

5. Before addressing the above legal proposition, it would be conducive to refer the relevant article of the Constitution of Pakistan 1973, which is as under:-- "Article 203-DD (1) The Court may call and examine the record of any case decided by any criminal Court under any 1aw 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 any way, 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. (underlining is supplied for emphasis)

6. The plain reading of the above Article makes it clear that Federal Shariat Court shall be competent to adjudicate:-- (i) any case decided by any Criminal Court; (ii) under any law relating to enforcement of Hadood; In above Article, the use of the phrase (s) 'any Criminal Court' or 'decision under any law' reflects that the legislature has made it quite clear that it is not the 'Court' or decision under the law which shall decide the competence and jurisdiction of the Federal Shariat Court to call and examine the legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such Court but the decisive factor would be that such decision was relating to enforcement of Hudood. The jurisdiction and the competence of the Federal Shariat Court has not been limited to those case(s) only where conviction is awarded for committing an offence under Hudood Laws but the Legislature, in its wisdom, has widened the competence by using phrase 'relating to enforcement of Hudood'. At this juncture, it is material to mention here that all the Laws relating to Hudood/Hadd carries the phrase 'Enforcement of Hudood'. Further, It would be significant to make it understandable that it is not the police report (charge sheet under section 173, Cr.P.C.) or taking of cognizance by the court which is of any relevance with the issue, involved because 'taking cognizance' is something, entirely different from that of 'framing charge' because 'cognizance is taken of offence' while the 'charge is framed against an accused for committing an offence'. The trial is not commenced merely on taking cognizance but it starts from the moment the Court frames the charge. In case of 'Haq Nawaz v. The State (2000 SCMR 785), it was held that:-- S. 190

Commencement of trial

Taking cognizance of offence by Court is not commencement of trial

Taking of cognizance of a case by a Court is not synonymous with the commencement of its trial which takes place on framing of the charge against the accused.

7. When a Criminal Court frames a charge against the accused for an allegation of having committed an offence under Hudood Law, then any decision thereof shall be open to examination by the Federal Shariat Court only, which is in consonance with the purpose and object of the phrase(s):-- (i) any case decided by any Criminal Court; (ii) under any law relating to enforcement of Hudood; Let's examine this view with reference to section 20 of the Offence Against Property (Enforcement of Hudood) Ordinance, which reads as under:--

20. Punishment for haraabah liable to tazir.

Whoever commits haraabah which is not liable to the punishment provided for in section 17, or for which proof in either of the forms mentioned in section 7 is not available, or for which punishment of amputation or death may not be imposed or enforced under this Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code, for the offence of dacoity, robbery or extortion, as the case may be. Even the above Section shows that first the Court shall be required to hold that it (haraabah) is not liable to the punishment provided for in section 17, or for which proof in either of the forms mentioned in section 7 is not available and only then punishment under relevant section of P.P.C. will be passed. Thus, within meaning of the Article 203-DD, it is the competence of the Federal Shariat Court to examine correctness, legality or propriety of any finding, sentence or order recorded or passed by, hence logically the finding of the Court with reference to Section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 should be examined by the Federal Shariat Court.

8. The position, being so, also stands clear from last para of the impugned judgment which is reproduced hereunder:-- Point No.2: The Tazkiya_Al-Shuhood is mandatory requirement for imposition of Hadd punishment under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. In the present case, such requirement of at least two Muslim adult male witnesses other than the victim of the robbery about whom the Court is satisfied, having the regard to the requirements of Tazkiya Al-Shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the occurrence, is not available. Such finding of the learned trial Court is legally required to be examined by the Federal Shariat Court and not by the High Court, as has been the object and purpose of the Article 203-D. There is another legally established principle of law which is material to refer here 'the appeal is the continuity of proceedings of trial', hence where the trial was for an offence 'relating to Enforcement of Hudood' then regardless of its decision under 'any law' the appeal will lie with Federal Shariat Court and not with High Court. Reference can be made to the case of Muhammad Akbar v. The State (2003 YLR 1339).

9. In view of what has been discussed, the appeal is returned for its presentation before Federal Shariat Court. MH/A-115/Sindh Appeal returned.