2017 PLP 835 (YLR)

ROOH-UL-AMIN KHAN, J.

This single judgment shall decide the instant Jail Criminal Appeal No. 84-P/2012 as well as connected Jail Criminal Appeal No. 85-P/2012 being the outcome of the same judgment dated 24.01.2012 rendered by learned Additional Sessions Judge-II, Charsadda, during a trial held in case FIR No. 448 dated 19.8.2009 under section 17(4) Haraba/413/414, P.P.C. Police Station Sardheri, whereby the appellants were convicted and sentenced under section 396, P.P.C. to undergo life imprisonment with fine of Rs. 100,000/- each or in default to suffer simple imprisonment for six months, however benefit of section 382-B, Cr.P.C. was extended to them.

2. On receipt of information about lying of an unknown corpse in the fields near to Nisata Road, the local police rushed there and found a dead body of man being murdered through fire arm and lodged report Ex.PA/1 against unknown accused(s). On 14.11.2009, Mst. Nazia widow of deceased recorded her statement under section 164, Cr.P.C., wherein she charged the appellants along with co-accused for commission of the offence.

3. Learned counsel representing the appellants, while refuting the preliminary objection raised by the learned Addl; AG argued that though the appellants have been indicted under-section 17(4), Offence Against Property (Enforcement of Hudood Ordinance, VI of 1979) read with sections 413 and 414 of Pakistan Penal Code, but the learned Additional Sessions Judge on conclusion of the trial has convicted and sentenced them under section 396 and section 412, P.P.C. as the charge against the appellants under section 17(4) Haraba (Enforcement of Hudood) Ordinance, (VI of 1979) could not be proved, therefore the forum of appeal would be the High Court and not the Federal Shariat Court.

4. Having heard the learned counsel for the parties, perusal of record would reveal that a dead body of an unknown person was recovered by ASI namely Mukhtiar Khan in the fields of one Mar Jan Khan, who drafted the mad report which was ultimately culminated into the FIR under section 302, P.P.C. against the unknown accused. The appellants were arrested on 8.11.2009, who were lateron charged by widow of the deceased namely Mst. Nazia in her statement got recorded under section 164, Cr.P.C. on 14.11.2009. During investigation it was noticed that the deceased was murdered by the appellants and other after snatching his vehicle, therefore, they were charged under section 17(4), Haraba read with 413 and 414, P.P.C. After conclusion of necessary investigation, challan was put in Court under section 17(4) Haraba Offences Against Property ( Enforcement of Hudood) Ordinance, 1979 read with 413 and 414, P.P.C. before the learned Additional Sessions Judge-II, Charsadda, where the appellants were convicted and sentenced under section 396, P.P.C. and sentenced to undergo life imprisonment, as mentioned in the preceding para.

5. The order of conviction was challenged through the instant jail appeals before this Court, under misconception that the appellants have been convicted and sentenced under the Pakistan Penal Code. Undisputedly, the charge against the appellants was framed under section 17(4) Haraba of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The august Supreme Court of Pakistan has settled the law in cases titled Muhammad Abbas and another v. The State (1984 SCMR 129), Atta Muhammad v. The State (1984 SCMR 1109), Muhammad Sharif v. The State (PLD 1999 SC 1063) and Khizar Hayat v. Noor and others (2004 SCMR 209), according to which if an accused person is charged with an offence under the Hudood Laws, then in case of conviction or acquittal the forum of appeal would be the Federal Shariat Court and not the High Court. The Shariat Appellate Bench of august Supreme Court of Pakistan Jurisdiction in Sharif Khan's case on scanning the entire law on the subject, was pleased to hold that in such a situation for the purpose of Prohibition Order and Ordinance VI of 1979, the word referred in section 417, Cr.P.C. in the context would mean the Federal Shariat Court and the appeal filed before the Federal Shariat Court would be competent. The above referred view was reiterated by the Sindh High Court in case titled Ijaz and another v. The State (2016 P Cr. LJ 130) and it was held that through the FIR and charge were framed under the Hudood laws but the sentence was awarded under the P.P.C. Mere passing of sentence under "Tazir" was not the determining factor for forum of appeal, rather it would be the "charge" that determined the forum of appeal.

6. For what has been discussed hereinabove, this and the connected Jail Criminal Appeal No. 85/2012, filed before this Court are not competent, which stand transferred to the Honourable Federal Shariat Court of Pakistan. The Additional Registrar (Judicial) of this Court is directed to send these appeals along with record of the case to the Honourable Federal Shariat Court. Copy of memorandum of each appeal be retained for office record. Order accordingly. WA/369/P Order accordingly.