Find a Lawyer

Criminal Revision No. 1139 of 1980, decided fin 14th April, 1981

--- Ss. 14 & 24 (1), Second proviso read with Criminal Procedure Code (V of 1898), S. 439-Revisional powers of High Court-Ordi nance VI of 1979 to be enforced through procedure as provided under Criminal Procedure Code, 1898 except in cases falling under Ss. 9 & 17 of Ordinance-Trial under Ss. 9 & 17 of Ordinance. To be held by Court of Session and appeal in such cases to lie to Federal Shariat Court-Besides such exception, other proceedings in relation to offences under Ordinance, or any other law, to be carried out and determined under provisions of Criminal Procedure Code, 1898-Petitioner tried and convicted under S. 14 of Ordinance, and S. 14 being not covered under Proviso petitioner proceeded against under general provisions of Criminal Procedure Code, 1898, i.e., tried by a Magistrate and his appeal heard by a Sessions Judge, High Court, held, possessed jurisdiction to determine revision petition under S. 439, Criminal Procedure Code, 1898.

--- S. 14-Theft-Sentence-Accused first offender of theft of bicycle and in Jail since dismissal of his appeal Uncertainty undergone and sentence-suffered, held would meet ends of justice.

Ashfaq Ahmad Khan for Petitioner.

Niaz Ahmad Bokhari for A. A.-G. for the State.

Dates of hearing : 13 and 14th April, 1981.

On 4th November, 1979, Zulfiqar Ali lodged a report that his cycle has been stolen by the petitioner. A case under section 14 of Offences against Property (Enforcement of Hudood) Ordinance (VI of 19791, .was registered against him. He was tried by a learned Magistrate, who and him guilty and sentenced him to one year's rigorous imprisonment. This is vide order dated 18th March, 1980. The accused petitioner , filed an appeal which was dismissed by the learned Sessions Judge, vide order dated 15th November, 1980. He filed the above revision petition.

2. Learned counsel for the petitioner has contended that the evidence against the petitioner is not reliable and he was entitled to acquittal.

3. Learned counsel appearing for the State (Mr. Niaz Ahmad Bokhari Advocate) raised an objection that since the petitioner has been tried and convicted under the Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), this Court has no jurisdiction under section 439, Cr. P. C. to entertain this petition. He has taken pains in preparation of the case and has referred to Muhammad Rafique and others v. The State (P L D 1980 Lah. 708) and Ghulam Ahmad v. The State (1981 P Cr. L J 173). He has also supported the judgments of the Courts below.

4. In order to appreciate the contention of the learned counsel for the State, it would be appropriate to reproduce section 24 of the aforesaid Ordinance VI of 1979, which is to the following effect: -

"The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall apply, mutatis mutandis' in respect of cases under this Ordinance Provided that, if it appears in evidence that the offender has com mitted a different offence under any other law, he may, if the Court is competent to try that offence and to award punishment therefore, be convicted and punished for that offence.

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 o; the said Code and an appeal from an order under either of the said sections shall lie to the Federal Shariat Court

Provided further that a trial by a Court of Session under this Ordi nance shall ordinarily be held at the headquarters of Tehsil in which the offence is alleged to have been committed.

(2) The provisions of the Code of Criminal Procedure. 1898 (Act' V of 1898), relating to the confirmation of the sentence of death, shall apply, mutatis mutandis to confirmation of sentences under this Ordinance.

(3) The provisions of subsection (3) of section 391 or section 393 of the Code of Criminal, Procedure, 1898 (Act V of 1898), shall not apply in respect of the punishment of whipping awarded under this Ordinance.

(4) The provisions of Chapter XXIX of the Code of Criminal Procedure, 1898 (Act V of 1898), shall not apply in respect of punishment awarded under section 9 or section 17 of this Ordinance."

From the perusal of the above provision, it would be quite clear that the provisions of the Code of Criminal Procedure shall apply in respect of the cases tried under the Ordinance VI of 1979. The exception is laic down in the second proviso in subsection (1) of the aforesaid Ordinance to the effect that offences punishable under section 9 or section 1.7 shall be triable by a Court of Session and not by a Magistrate authorized under section 30 of the said Code and an appeal franc an order under either of the said sections shall lie to the Federal Shariat Court. In other words, the Ordinance VI of 1979 shall be enforced through the procedure as provided under the Code of Criminal Procedure, 1898, except that in cases falling under section 9 and section 17, the trial shall be held -by a Court of Session and the appeal shall lie to the Federal Shariat Court. Besides this proviso or exception, of other proceedings in relation to offences under the provisions of the Ordinance or any other law shall be carried out and determined under the provisions of the Criminal Procedure Code. In the case in hand, the petitioner has been tried and convicted under section 14 of the said Ordinance and this being not excepted or falling under the pro viso has been proceeded with under the general provisions of the Criminal Procedure Code. The petitioner was tried by a learned Magistrate and bib appeal was heard and determined by a learned Sessions Judge. This being so the petitioner has been dealt with under the Criminal Procedure Cod and was so entitled to be dealt with under the said Code. His case being not one of exceptional nature as provided in the second proviso to clause" (1) of section 24 of the Ordinance VI of 1979 hence the objection of the learned counsel for the State is not sustainable that this Court has n jurisdiction to determine revision petition under section 439, Cr. P. C. The authorities relied upon by the learned counsel for the State really do no support the contention. On the other hand, the reasonings will show that excepting the matters excluded by the second proviso to clause section 24 of the Ordinance VI of 1979, the other provisions of Criminal Procedure Code shall continue to apply. In the second judgment quoted by the learned counsel for the State, there is an observation that even in case falling under the proviso before conviction a revision petition will be competent before the High Court. Undeniably, therefore a revision petition would be competent in matters not falling within the exceptional provision of proviso 2 of subsection (1) of section 24 of Ordi nance VI of 1979. Therefore, the revision petition filed by the petitioner is competent under the law.

5. On coming to the merits of the case, the case was registered against g the petitioner on 4th November, 1979. His appeal has been dismissed by the learned Sessions Judge on 15th November, 1980. Since then, the petitioner is in Jail. The uncertainty undergone and the sentence suffered would meet the ends of justice, as he seems to be the first offender of theft of a bicycle. Therefore, the conviction of the petitioner is maintained, but the sentence is reduced to one already undergone. He shall be released forthwith, if not wanted in any other case.

Order accordingly

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.