2010 PLP 657 (YLR)

M.A. ZAFAR, J.

This judgment will dispose of Criminal Appeal No.470 of 2003 filed by Ghazanfar Ali, appellant, who was convicted and sentenced by learned Addl. Sessions Judge, Rawalpindi vide impugned judgment dated 13-10-2003 as under:-- Under Section 302(b), P.P.C. Death for committing murder of Shahid Anees with compensation of Rs.1,00,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. in default thereof to further undergo 6 months rigorous imprisonment. Under sections 397/37, P.P.C. 7 years' rigorous imprisonment.

2. Brief facts of the prosecution case are that on 1-5-1994 at about 1-00 p.m. present accused along with his co-accused persons while armed with fire-arm weapons, in furtherance of their common intention committed robbery, snatched gold bangles from arms of Nagina Naz and injured her on her resistance and killed Shahid Anees by firing shots upon him.

3. The present appellant also remained fugitive from law while his co-accused persons were tried by the learned predecessor of the Trial Court and vide judgment dated 29-5-2000 both the said co-accused persons namely Idrees and Ashiq convicted and sentenced under sections 302(b) and 394/34, P.P.C.

4. Present appellant was charged on 4-4-2002 and following charge was framed: "That on 1-5-1994 at about 1-00 p.m. within the area of P.S. Murree, you along with your co-accused Muhammad Idrees and Ashiq Hussain (both convicted) armed with fire-arm weapons with common intention committed robbery and snatched gold bangles from the arms of Nagina Naz and injured her on resistance. You also killed Shahid Anees by firing shots upon him. In this way, you have committed an offence under sections 302/324 and 394/34, P.P.C. and 17 Haraba, which is triable by this Court."

5. Since the appellant was also charged and tried under section 17 (Haraba) of Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 notwithstanding the fact that he was acquitted from the charge under the Hudood Ordinance but convicted only under Pakistan Penal Code, the appeal would lie to the Federal Shariat Court and not before A this Court in view of the law laid down by the Honourable Supreme Court in case of Muhammad Abbas v. The State 1984 SCMR 129 and Federal Shariat Court decision in Fazal Din's case PLD 1983 FSC 33) and thus the appeal of the convict would lie before the Federal Shariat Court and a reference for confirmation of death sentence would also competent before the said Court. The relevant portion of the judgment of the Honourable Supreme Court in Muhammad Abbas's case reproduced as under:

"As the trial by Court of Sessions 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 sections 20(1) and 8 reference for confirmation of the death sentence, to that Court would be competent under subsection (2) of the said section. The objection too had been rightly rejected by the Federal Shariat Court."

6. In view of the above Criminal Appeal No.470 of 2003 filed by Ghazanfar Ali appellant is not maintainable before this Court; original memo. or appeal along with Wakalat Nama and certified copies of the impugned judgment after placing on record copies thereof duly attested by the D.R. (Judi.) of this Bench are directed to be returned to the learned counsel for the appellant for its presentation before the competent forum, Murder Reference No.778 of 2004 received from the learned Trial Court for confirmation of death sentence of Ghazanfar Ali appellant be returned to the said Court for its submission before the Federal Shariat Court as the appeal of the appellant under the law can only be heard by the said Court.

7. In the above terms the criminal appeal and murder reference are disposed of.

8. The order passed by us may also be transmitted to the appellant for his information through Superintendent Jail concerned. H.B.T./G-121/L Order accordingly.