2002 PLP 3430 (YLR)

2. Briefly the facts of the case as narrated by Muhammad Anwar, complainant in his report Exh.P1‑A, lodged at the Police Station Usta Muhammad District Jafarabad are, that he had obtained a shop on rent from Ghulam Rasool co‑accused of the petitioner, and was running the business of Arms and Ammunition in the name of Baloch Arms Store. On 8‑1‑1999, in the evening, the complainant was sitting alongwith said Ghulam Rasool and Muhammad Baqa P.W.2 in his shop, when the petitioner turned up and asked for the repair of his pistol, and also enquired about the prices of various pistols lying in the shop. It was in their presence that the complainant, prepared a draft of Rs.2,50,000 and a cheque of Rs.20,000,and had put the same in the draws of the table and closed his shop. On opening of the shop next day, he found that the roof of the shop was broken and the cash of Rs.2,50,000 and cheque of Rs.20,000 alongwith eight T.T Pistols amounting to Rs.1,20,000 four shot guns double barrel amounting to Rs.52,000 one shot gun single barrel .12 bore amounting to Rs.10,000 were stolen. The complainant was positive that the petitioner Bashir Ahmad alongwith Ghulam Rasool co‑accused had burgled his shop and had committed the theft of the property. On this report the case was registered against the said two accused and the investigation was resumed by S.I. Muhammad Aslam Safi, who inspected the spot and took into possession bricks of the root and the broken door of the shop vide memo. Exh.P4‑B. He also took into possession photo‑copies of the receipts P.4 to P.27 vide memos. Exh.P./4‑C signed by P.W.4.On 9‑1‑1999 the petitioner Bashir Ahmad as well as his co‑accused Ghulam Rasool were arrested and after completion of the formalities of the investigation they were challaned to Court to face their trial on 15‑1‑1999. The charge was framed by the learned Judicial Magistrate Usta Muhammad under sections 9/14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, to which the accused pleaded not guilty and claimed their trial.

3. The statements of four P.Ws namely Muhammad Anwar complainant P.W.1, Muhammad Baqa P.W.2, Abdul Wahab P.W.3, Wahid Bakhsh P.W.4. and A.S.I. Liaqat Ali P. W .5. were recorded and the accused were called upon to make statements under section

342. Cr.P.C. Both of them denied the allegations put forth by the prosecution and professed innocence. Ghulam Rasool the co‑accused of the petitioner opted to examine himself as witness of his own and section 340(2), Cr.P.C. while the petitioner refused to avail of the said opportunity. Ghulam Rasool co‑accused deposed that he and his son have been falsely implicated by the complainant, who was their tenant in the shop and wanted to grab the same through unlawful possession.

4. After close of the trial, the learned trial Court convicted both the accused under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentenced them as stated above. The petitioner and his co‑accused had then filed appeal before the learned Sessions Judge Usta Muhammad, who vide judgment dated 8‑8‑2000, accepted the appeal of Ghulam Rasool accused and acquitted him from the charges, while appeal of the petitioner was dismissed and his conviction and sentence passed by the learned trial Court was maintained. Hence this revision petition.

5. I have heard the learned counsel for the parties and have perused the record with their assistance.

6. Learned counsel for the appellant has vigorously argued that the trial conducted by the learned Judicial Magistrate was against law and facts on record as the charge framed against the petitioner and his co‑accused was under section 9 read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which was exclusively triable by the learned Sessions Judge, and the Judicial Magistrate had no jurisdiction to decide the same. It was further argued that the appeal against the said conviction and sentence was also filed before the wrong forum, as the learned Sessions Judge was not competent to entertain and decide the appeal which carried the sentence exceeding two years. Reference in this respect was made to the proviso‑II to subsection (1) of section 24 of this Ordinance.

7. Learned counsel further submitted that in such like circumstances the case may be sent back to the Court of competent jurisdiction for its trial afresh. Reliance in this respect was placed on State v. Sher Abbas Khan (1990 PCr.LJ 1702).

8. Learned counsel for the State has not been able to controvert the contentions raised by the learned counsel for the appellant and readily conceded for the remand of the case, for its fresh trial.

9. I have anxiously considered the above submissions made by the learned counsel and have carefully gone through the relevant provision of law, embodied in proviso‑II to subject section (1) of section 24 of this Ordinance, which is reproduced below for the facility of convenience: "Provided further that an 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 sections or from an order under any other provision of this Ordinance which imposes a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court." In the instant case the perusal of the record reveals that the charge against the petitioner and his co‑accused was framed under section 9 read with section 14 of this Ordinance by the learned Judicial Magistrate, which according to the above provision of law was exclusively triable by the Court of Session and not by the Magistrate empowered under section 30, Cr.P.C. I, therefore, feel constrained to observe that the trial conducted by the learned Judicial Magistrate was corum non‑Judice, as he had no jurisdiction to proceed with the trial of the case and award sentence to the accused after framing of the charge under sections 9/14 of this Ordinance.

10. Besides this, there is yet another infirmity which has occurred in filing this appeal before the learned Sessions Judge, who had also no jurisdiction to entertain and decide the same as per provisions of the law, cited supra because the accused in this case were convicted and sentenced to undergo R.I. exceeding two years, which could only be challenged before the Federal Shariat Court.

11. In this view of the matter, I am of the firm opinion that neither the learned trial Court had the jurisdiction to try the said offence nor the learned Sessions Judge was competent to entertain and decide the appeal.

12. The upshot of the above discussion is that this revision petition is accepted, the impugned judgment dated 8‑8‑2000 passed by the learned Sessions Judge as well as the judgment passed by the learned trial Court dated 24‑7‑2000 are set aside and the case is remanded to the learned Sessions Judge for its trial afresh, strictly in accordance with law.

13. The petitioner who was allowed bail by this Court be directed to furnish fresh bail bonds before the learned Sessions Judge who would be at liberty to exercise his powers, if invoked, at any stage under section 497; Cr.P.C. This revision petition stands disposed of accordingly. N.H.Q./83/FSC Revision petition accepted.