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(a) Penal Code (XLV of 1860)‑‑

‑‑Ss. 343, 365, 374, 377 &511‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 12 & 20‑‑Forum of appeal‑‑Trial Court convicting accused under provisions of Penal Code and acquitting them from charge under Ordinance VII of 1979‑‑Appeal to High Court, whether competent‑‑Reasonable and harmonious interpretation of S. 20 of Ordinance VII of 1979, for eliminating possibility of conflict of judgments by different Courts, held, would be that appeal against conviction as well as against acquittal shed lie to Federal Shariat Court when trial was held under the Ordinance‑‑Appeals against conviction under Penal Code would be competent before Federal Shariat Court and not before High Court in circumstances‑‑Appeals returned for presentation before proper forum. ‑‑[Appeal (criminal)].

Nosher Rustam Sidhwa v. Federation of Pakistan P L D 1981 FSC 245: Muhammad Abbas v. The State P L D 1984 FSC 3; Doran Khan's case P L D 1985 Quetta 188 and Fazal Din's case P L D 1983 FSC 33 ref.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑

‑‑S. 20‑‑Word 'order' mentioned in S. 20 of Ordinance, held, would cover both 'order of conviction' as well as order of acquittal'.

Syed Abdul Razzaq Jilani for Appellant.

Tassadaq Hussain Jilani, A.A.‑G. for the State.

Date of hearing: 20th November, 1985.

Muhammad Khan and Talib Hussain have filed separate appeals (Criminal Appeals Nos. 38 of 1985 and 73 of 1985) against their conviction and sentence recorded by Additional Sessions Judge, Multan, vide judgment, dated 23‑1‑1985 which are being disposed of by this single judgment.

2. The relevant facts for decision of these appeals briefly are that on 9‑ 12‑ 1983 at about 4 p.m., in Multan City, Muhammad Qasim P.W., a boy of 13 years' age, while going to Bazar for purchasing tea leaves, was abducted by the appellants and taken to an under‑construction water tank in Suraj Miani, Multan, and tied him there with a chain and next morning took forced labour from‑him. Talib Hussain, appellant, also attempted to commit sodomy with him during the night. Kup Police, Multan was informed about disappearance of Muhammad Qasim by his father. The boy was later recovered and the appellants were challaned under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 (hereinafter called Ordinance VII of 1979) and sections 365, 343, 374 and 377 read with 511, P.P.C. The Ilaqa Magistrate sent the case to Sessions Court, Multan under section 190(3), Cr.P.C., for trial. Sh. Hafeez‑ur‑Rahman, Additional Sessions Judge, Multan, tried the appellants and while convicting them under sections 365, 342 and 374, P.P.C., he acquitted them from charges under section 12 of Ordinance VII of 1979 and section 377 read with 511, P.P.C. The convicts have filed the instant appeals against their conviction.

3. A preliminary objection as to the competency of the appeals in this Court has been raised by learned Assistant Advocate‑General. He submitted that since the trial in this case was held under Ordinance VII of 1979, therefore, the appeals against conviction of the appellants, lie before the Federal Shariat Court and not to the High Court as provided by section 20 of the said Ordinance. Reliance in this connection has been placed or. Nosher Rustam Sidhwa v. Federation of Pakistan P L D 1981 FSC 245 and Muhammad Abbas v. State P L D 1984 FSC 3. Replying, learned counsel for the appellants submitted that since the appellants have been acquitted from the charge under section 12 of Ordinance VII of 1979 and have been convicted only for offences under Pakistan Penal Code, therefore. the appellants rightly filed their appeals in this Court. He has relied on Doran Khan's case P L D 1985 Quetta 188 in this connection.

4. Section 20 of Ordinance VII of 1979 is reproduced hereunder for facility of reference:‑

"20. Application of Code of Criminal Procedure Act V of 1898 and amendment.‑‑(1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereafter in this section referred to as the Code, shall apply, mutatis mutandis, in respect of cases under this Ordinance:

Provided 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:

Provided further that an offence punishable under this Ordinance 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 of the Court of Session shall lie to the Federal Shariat Court:

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

(2) to (6) ...............................................................................................................

5. The first proviso says that if the evidence recorded during the trial held under Ordnance VII of 1979 discloses commission of an offence under any other law the trial Court (Court of Session) can convict and punish the accused for that offence provided the Court is competent to try and punish him for such offence. The second proviso provides that an offence punishable under Ordinance VII of 1979 shall be tried by a Court of Session and appeal from such "order" shall lie to the Federal Shariat Court. Obviously the word 'order' covers both 'order of conviction' as well as 'order of acquittal'. If the view of the appellants' learned counsel is accepted then it would mean that an accused tried for offences under Ordinance VII of 1979 and Pakistan Penal Code if ultimately acquitted from the charges under Ordinance VII of 1979 and convicted for offences under Pakistan Penal Code the appeal against conviction would lie to the High Court and the State appeal against acquittal from offences under Ordinance VII of 1979 would lie before the Federal Shariat Court. This would, in my view, entail the risk of conflict of judgments by different Courts in the same matter on same evidence, therefore, reasonable and harmonious interpretation of section 20, eliminating the possibility of conflict of judgments by different Courts, would be that when a trial is held under Ordinance VII of 1979 then appeal against conviction as well as against acquittal would lie to the Federal Shariat Court. I am fortified in my view by illuminating pronouncement by the Federal Shariat Court made in Fazal Din's case P L D 1983 FSC 33. In that case the accused was tried by Sessions Judge under section 302, P.P.C. read with section 10 of Ordinance VII of 1979. He was acquitted b Sessions Judge from the charges both under Pakistan Penal Code and Ordinance VII of 1979. The State filed two separate appeals against acquittal i.e. one before the Federal Shariat Court challenging acquittal from the charge under section 10 of Ordnance VII of '1979 and the other in the High Court challenging acquittal of the accused from the charge under section 302, P.P.C. A question arose before the Federal Shariat Court as to what was the proper forum of appeal. The learned Judges of the Federal Shariat Court while interpreting section 20 of Ordinance VII of 1979 observed as under:‑----

"It would lead to inconvenience, rather anomalous results if two different Courts‑‑one on conviction under one statute and the other on conviction under another statute‑‑are held to have jurisdiction to appreciate the same evidence in which there is possibility of arriving at different conclusions. Such a construction should be avoided. We are of the view that these appeals are competent against the acquittal under section 10(3) of the Ordinance (VII of 1979) as well as under section 302, P.P.C. The mere fact that an appeal has been filed before the High Court also would not take away the jurisdiction of this Court. It appears that the State has filed that appeal by way of abundant caution:"

In the case of Muhammad Abbas (supra), Sessions Judge tried and convicted the accused for offence under section 18 of Ordinance VII of 1979 and also under section 302/34 read with 449, P.P.C. The question as to where the appeal would lie was also considered. It was held that the Federal Shariat Court having exclusive jurisdiction under Ordinance VII of 1979 was competent to hear the appeal. Discussing section 20 of the Ordinance, following important observation was made:‑

"Consequently, it can safely be held that under first proviso to subsection (1) of section 20 of the Ordinance (VII of 1979), the order of conviction passed by the Sessions Judge under the Ordinance as well as the Penal Code for all purposes has to be treated as an order under section 20(1) of the Ordinance and consequently appeal would be competent before this Court which has got exclusive jurisdiction under the Ordinance. The result is that in the circumstances no exception can be taken either against the trial and conviction of the accused persons by the trial Court for different offences or competence of the appeal before this Court:"

6. As for Doran Khan's case (supra) relied upon by learned counsel for the appellants, it may be stated that in that case the accused was tried under section 18 of the Ordinance VII of 1979 but was convicted and sentenced under section 354, P.P.C. by Additional Sessions Judge. Against this, an appeal was filed in the High Court. It was argued that offence punishable under section 354, P.P.C. was a scheduled offence under Criminal Law (Special Provisions) Ordinance, 1968, therefore, it was triable by a tribunal constituted under the said Ordinance and not by Sessions Judge. Learned Judge in the High Court holding that Sessions Judge was not competent to try and award punishment to the accused under section 354, P.P.C. quashed the conviction. This authority, to my mind, being not relevant to the case in hand is of no avail to the appellants.

7. For the foregoing reasons, I am left in no manner of doubt that because trial of the appellants was held under Ordinance VII of 1979, therefore, their appeals challenging conviction are competent before the Federal Shariat Court and not before this Court. The appeals be returned to the appellants for presentation before the proper forum.

S.A. /M‑89/L Appeals returned.

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