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Criminal Petition for Special Leave to Appeal No. 30‑R(S) of 1983, decided on 15th October, 1983.

(Against the judgment of the Federal Shariat Court, date ‑3td ‑August, 1983 in Criminal Appeals Nos. 35/I of 1982 and 17/I of 1983)

‑‑‑ S. 354 read with Criminal Procedure Code (V of 1898), S. 28 and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 20, first proviso‑Offence of criminal force to woman‑Trial and conviction for such offence‑Held, within jurisdiction of Court of Session‑Held further, Federal Shariat Court was competent to hear and dispose of appeal notwithstanding fact that convict had filed appeal in High Court and not in Federal Shariat Court.

-----Art. 203‑F (2‑B) read with Penal Code (XLV of 1860), S. 354 Criminal force to woman‑Questions relating to enmity between parties, doubtful recovery of torn shirt of woman and delayed F. I. R: found to have been examined by two Courts below and adequately covered by their judgments‑Courts not found to have violated any provision or ignored any principle of law in believing prosecution evidence for recording conviction of petitioners ‑ Leave to appeal refused.

Hafiz S. A, Rahman, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing :,15th October, 1983.

The three petitioners all convicted and sentenced under section 354, P. P. C. seek leave to appeal under Article 203‑F(2‑B) of the Constitution against the judgment of the Federal Shariat Court dated 3rd of August 1983 whereby their appeal against conviction and sentence was dismissed.

The three appellants were sent up for trial before the Additional Sessions Judge under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioners suspected Karam Ilahi, a brother of Mst. Khudeja (P. W. 4) of maintaining illicit relations with Mst. Sahiban, a s1ster of Ata Ullah petitioner. All the three petitioners are closely related. On the 10^th of October, 1980 at about 3 p. m. they came armed to the house of Mst. Khudeja, dragged' her to a distance of two killas towards their own dera. Her shirt was torn and chadar (loin cloth) removed. She was rescued by Sibghat Ullah (P. W. 6). The report about the occurrence was recorded at the Police Station Nurpur Thai, District Sargodha at 9‑l5 p. m. on 11th October, 1980 at the instance of Zulfiqar (P. W. 3) an uncle of Mst. Khudeja who also produced the torn kurta. The petitioners pleaded their false implication on account of enmity and denied the occurrence altogether.

The trial Court finding no corroboration of forcible abduction did not hold the appellants guilty under section 11 of the Hudood Ordinance but found all of them guilty under section 354, P. P. C. and sentenced them to rigorous imprisonment for two years each and to pay a fine of Rs. 1,000 or in default to undergo rigorous imprisonment for a further period of six months.

On appeal the Federal Shariat Court re‑examined the evidence and upheld the conviction of the appellants under section 354, P. P. C.

The learned counsel for the petitioners contended that under section 20 pf the Offence of Zina (Enforcement of Hudood) Ordinance the learned Additional Sessions Judge could convict the appellants under section 354, P. P. C. only if he were competent to try that offence and award punishment therefore By reference to the Second Schedule to the Cr. P. C. the learned counsel submitted that an offence under section 354, P. P. C. was triable by a Mag1strate 1st Class and hence the conviction and sentence of the petitioners under section 354 by the Additional Sessions Judge was wholly without jurisdiction. He further contended that an appeal against conviction and sentence under section 354 lay to the High Court and not to the Federal Shariat Court and the petitioners had accordingly filed their appeal there. As the complainant had filed an appeal in the Federal Shariat Court against the acquittal of the petitioners under section 11 of the Hudood Ordinance the Federal Shariat Court while dealing with that appeal called of the appeal of the petitioners filed in the High Court and disposed of the two together. On merits it was contended that the recovery of the shirt was not believed by the trial Court. There was a background of enmity. The first information report was delayed. The case against the petitioners was not fully made out under section 354, P. P. C.

So far as the legal grounds are concerned, we find that in making the first submission the learned counsel has not taken note of section 28 of the Cr. P. C. which provides as follows :‑

"28. Offence under Penal Code.‑Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried

(a) by the High Court, or

(b) by the Court of Sessions, or

(c) by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable."

The first proviso to section 20 of the Hudood Ordinance provides that "if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefore be convicted and punished for that offence." Reading section 28 of the Cr. P. C. Which has been applied by section 20 of the Hudood Ordinance with the first proviso to section 20 of the Ordinance the jurisdiction of the Court of Session to try and punish for the offence under section 354 is fully made out. There was no jurisdictional defect in trying or recording the conviction and sentence under section 354, P. P. C.

An appeal from a trial under the Ordinance lies under the second proviso to section 20 to the Federal Shariat Court. The Federal Shariat Court, there fore, competently heard the appeal and disposed it notwithstanding the fact that the petitioners had filed appeal in the High Court and not in the Federal Shariat Court.

As regards the merits of the case‑enmity between the parties, the doubtful recovery of the shirt and the delayed first information report‑we find that these questions have been examined by the two Courts below and adequately covered by their judgments. The prosecution evidence has been believed for recording the conviction of the petitioners under section 354, P. P. C. and we do not find that in doing so the Courts have violated any provision or ignored any principle of law on the subject. Leave to appeal is, therefore, refused.

S, Q, Petition dismissed,

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