P L D 1985 Quetta 188 (PLP)

This appeal filed by Doran Khan, appellant herein, is directed against the judgment, dated 31-3-1983 of the learned Additional Sessions Judge Quetta, whereby the appellant was convicted under section 354, P. P. C. and sentenced to undergo R. I. for two years and to pay a fine of Rs. 500 or in default thereof to suffer R. 1. for three months.

2. The facts of the case are that the appellant was charged under F. I. R. No. 92 of 1979 for attempt to commit Zina with Mst. Begum Bibi. He was sent up for trial under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 before the Additional Sessions Judge, Quetta. The learned trial Judge charged the appellant under section 18 of the said Ordinance to which he pleaded not guilty and claimed trial. The learned trial Judge recorded prosecution evidence, examined the appellant and recorded evidence of one defence witness and vide impugned judgment came to the conclusion that from the evidence recorded in the case, the offence under section 18 of the Hudood Ordinance was not proved but instead the appellant was guilty of an offence punishable under section '354, P. P. C. He, therefore, recorded conviction and sentence, against the appellant under the latter offence.

3. The main point urged by the learned counsel for the appellant is that the area where the offence in question was alleged to have been committed by the appellant is an area where the Criminal Law (Special Provisions) Ordinance, 1968 is applicable and the offence punishable under section 354, P. P. C. being a scheduled offence thereunder, was not triable by the learned Sessions Judge but triable by a tribunal constituted under the said Ordinance and that the impugned judgment was without jurisdiction and void.

4. All offences under the Pakistan Penal Code, except offences specified in section A of Part I of the Schedule to the Conciliation Courts Ordinance, 1961 are exclusively triable by a tribunal constituted under the Criminal Law (Special Provisions) Ordinance, 1968, in the areas where this Ordinance is applicable. It is not denied that the place of the present 1-ccurrence is covered by the provisions of this Ordinance. Hence the offence under which the appellant has been convicted is a scheduled offence triable under the aforesaid Ordinance.

5. The learned counsel for the State has controverted this contention of the learned counsel for the appellant on the ground that the appellant was charged for an offence under section 18 of the Hudood Law and no matter that the conviction was recorded- under section 354, P. P. C. the appeal should have been preferred to the Federal Shariat Court and the same is incompetent in this Court. For proper appreciation of both the legal objections, I would take them up one by one.

6. No doubt an offence punishable under section 354, P. P. C. i not an offence under the Hudood Law. It is, therefore, a scheduled offence for the purposes of the Ordinance, 1968 and in the area where that Ordinance, is applicable, this offence is to be tried by a tribunal constituted under the said Ordinance and under subsection (4) of section 4 thereof whenever any Magistrate, Court or other authority comes to know that the offence is triable under the Ordinance, 1968 he has to stay further proceedings in respect of that offence and refer it to the Deputy Commissioner for proceedings under the said Ordinance. He has to stay his hands of the trial of that offence immediately on coming to know of this position. 7: In so far as the contention of the learned State Counsel is concerned the Additional Sessions Judge is competent to try every offence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 where an accused is sent up for trial before him for any offence punishable under the Ordinance as provided in section 20 thereof. In support of this argument be has relied upon the case of Anwar-ul-Haque alias Anwar v. The State P L D 1983 F S C 234, wherein the appellant was tried and convicted by the Sessions Judge under section 18 of the Hudood Ordinance but in appeal his conviction was altered to that under section 354, P. P. C. by the Federal Shariat Court.

8. The Sessions Judge would also be competent to award punishment to an accused if it appears in evidence that the offender has committed a different offence under any other law if he is competent to try that offence and award punishment, therefore, as would be clear from the first proviso to section 20 of the Hudood Ordinance. It would mean that although an accused may have been charged for any offence under the Hudood Law but the Sessions Judge would be competent to convict him for an offence under any other law provided he is competent to try hid and award punishment therefor. Now we shall see whether the offence under section 354, P. P. C. is an offence which could be tried by the Sessions Judge. The maximum punishment for an offence under section 354, P. P. C. is two years. It is triable by a Magistrate of first class or second class. Under section 193(1), Cr. P. C. a Sessions Judge cannot take cognizance of an offence as a Court of original jurisdiction unless the case has been sent up to him by a Magistrate under subsection (3) of section 190, Cr. P. C. which means that only that offence shall be sent up by a Magistrate to a Court of Sessions for trial which is exclusively triable by the Court of Sessions. The minute perusal of the provisions! of section 190(3) and section 193(t) would show that the Court of Session has no original jurisdiction in respect of any offence and will try only those cases for which it has exclusive jurisdiction and which are sent up for trial to it by a Magistrate. The Sessions Court has no jurisdiction to try an offence under section 354, P. P. C. nor it could be sent upto it by' a Magistrate for trial. Obviously the learned Additional Sessions Judge) had no jurisdiction to record conviction and sentence against the appellant) when he came to the conclusion that he had committed an offence punish-[ able under section 354, P. P. C. only although the appellant was initially charged for an offence punishable under section 18 of the Hudood law, for the reason that he was not competent to try an offence punishable under section 354, P. P. C. Furthermore, the offence under section 354, P. P. C. being a scheduled offence under the Criminal Law (Special Provisions) Ordinance, 1968, was also not triable by him. As such he should not have recorded conviction but referred the matter to the Deputy Commissioner under section 4 of the Criminal Law (Special Provisions) ID Ordnance, 1968. He had no jurisdiction to make the impugned judgment and the same is void and without jurisdiction. He could also not try this case as a Court under the Hudood law when he came to the conclusion that the appellant had not committed any offence triable thereunder as he was not competent to try the offence under which he has finally convicted the appellant. In arriving at this conclusion I find support from the case of the State v. Syed Mir Ahmad Shah and another P L D 1970 Quetta 49.

9. In so far as the other objection by the learned State counsel about the competency of this appeal in this Court is concerned, the same should not now be difficult to answer. It is provided in the second proviso to section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 that an offence punishable under this Ordinance shall be triable by a Court of Sessions and an appeal from an order of the Court of Sessions shall lie to the Federal Shariat Court. This would clearly mean that an appeal shall lie to the Federal Shariat Court in those cases only which are punishable under the Ordinance and not under any other law. The learned Additional Sessions Judge convicted the appellant in the capacity E of a Court constituted under the Cr. P. C. and not as a Court exercising jurisdiction under the Hudood law. He convicted the appellant under section 354, P. P. C. and not for an offence under the Hudood Law. If learned trial Judge had convicted the appellant for an offence under the Hudood law then the appeal would certainly lie to the Federal Shariat Court, but in the present situation the appeal would only lie to the High Court as the appellant did not commit any offence punishable under the said Hudood Law.

10. The upshot of the above discussion is that the impugned judgment of the learned Additional Sessions Judge, Quetta is without jurisdiction and void. This appeal is accepted. The conviction and sentence of F the appellant is set aside and the matter is referred to the Deputy Commissioner concerned for proceeding afresh under the provisions of the Criminal Law (Special Provisions) Ordinance, 1968 for de novo trial. M. Y. H.????????????????????? Appeal accepted.