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Criminal Appeal No.65/I of 2010, decided on 9th October, 2014.

----Ss. 302, 452 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.15 & 17(4)---Criminal Procedure Code (V of 1898), S.417(2-A)---Constitution of Pakistan, Arts.203-D & 203-DD---Qatl-i-amd, house trespass after preparation for hurt, assault or wrongful restraint, common intention, haraabah---Appeal against acquittal---Jurisdiction of Federal Shariat Court---Accused, in the F.I.R., were not charged at all for the commission of either theft or extortion, so as to bring the offence within the ambit of "Haraabah" with murder or dacoity with murder---Case was one of simple trespass and murder for which the charge should have been framed under Ss.302, 452 & 34, P.P.C.---Charge under S. 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was illegal and void---Jurisdiction of Federal Shariat Court, was invoked on the ground which never existed, thus was void altogether---Court which assumed appellate jurisdiction, had the authority to hold, with application of mind, that the charge had been framed, either rightly or wrongly---If the court had the jurisdiction to hold that the charge was rightly framed, it also had the jurisdiction to hold that it had been wrongly framed---Case fell under Ss.302, 452 & 34, P.P.C., therefore charge was wrongly framed under S. 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Federal Shariat Court had no jurisdiction to decide appeal in circumstances. Saliheen Mughal for Appellant. Wajio-ur-Rehman Khan for Respondents. Mian Shujaat Shah, Assistant Advocate-General, Khyber Pakhtunkhwa for the State. Date of hearing: 9th October, 2014.

Azad son of Muhammad Gul, complainant of F.I.R. No.549 dated 26-5-2009 of Police Station Cantt; Abbottabad has filed this appeal against the judgment dated 1-4-2010 of the learned Additional Sessions Judge-IV, Abbottabad, whereby the accused Akram, Azhar and Shadam Khan, tried under sections 17(4) of Ordinance VI of 1979, were acquitted of the charge. 2. In order to appreciate the facts of the case, one has to have a glance through the first information report. Azad complainant (62/63) along with his brother Sikandar (40/42) resided in the house of Babu Waheed in Lamian Barian Banda Khatkar village Salhad. On 26-5-2009 the complainant along with his family while his brother along with his two wives in the adjoining room, were asleep when at about 4-00 a.m. three/four persons entered the house and belaboured the ladies. On commotion Sikandar woke up and called from his room upon which the assailants reverting towards him started beating him in the door of the room. During altercation the assailants opened fire which hit Sikandar on his head. He fell down injured when in the meanwhile the assailants made good their escape. 3. The complainant called out the neighbour Khani Zaman. They carried the injured to the hospital. According to the complainant, he could identify the assailants, if confronted. He charged the assailants for attempting at the life of his brother Sikandar. The injured succumbed to his injury and subsequently the F.I.R. was registered under section 17(4) of Ordinance VI of 1979 read with sections 324/302/452/34, P.P.C. 4. From the plain reading of the F.I.R., even a layman would appreciate that the assailants are not charged at all for the commission of either theft or extortion so as to bring the offence within the ambit of Haraabah with murder or dacoity with murder. By all stretch of imagination it was a simple case of trespass and murder for which the charge should have been framed under sections 302/ 452/34, P.P.C. It is not known as to what persuaded the learned trial court for charging the accused under section 17(4) of Ordinance VI of 1979 at all. The charge under section 17(4) of Ordinance VI of 1979 was illegal and void. 5. The jurisdiction of this Court is invoked on the grounds which never exist and if so existed, it was void altogether. A court which assumes appellate jurisdiction, has the authority to hold, with the application of mind, that the charge has been framed either rightly or wrongly. If the court has the jurisdiction to hold that the charge is rightly framed, it also has the jurisdiction to hold that it has been wrongly framed. 6. The case having simply fallen under sections 302/452/34, P.P.C., the charge was wrongly framed under section 17(4) of Ordinance VI of 1979 and thus the appeal could not lie before this Court. May be the appellants had the bona fide belief in resorting to this Court but the charge framed by the court was altogether against the basic facts of the case. 7. Consequently, for reasons above, the appeal is hereby dismissed for lack of jurisdiction. HBT/17/FSC Appeal dismissed.

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