Rashid Mehmood Vs The state

Judgmenl Sheet

IN THE PBSHAWAR HIGH COURT, ABBOTTABAD

BENCH

.IUDICIAL DEPARTMENT

Cr. Appeal I'{o. I 9 5 -A/2 024

JUDGMElVT Date of hearing. ..03.06.2025

Appellants (Rashid Mehmood) By M/s. Wajih-ur-I{ehrnan Khan Swati and Fazal-e-Haq Abbasi, Advocates.

Respondents. (State) By Sardar Basharat, Additional Advocate General and (Complainant) By Mr. Atif Ali Jadoon, Advocate. {< r< r< r< {< r< rk * * * * i( + * * * * * * SADIO ALL J.- Through this single judgment, we propose to decide this (Cr.Appeal No. 195- A12024) and the connectod Cr.Appeal No. 192- N2024 titled "Asad & snother Vs. The State & onother", as both these appeals have arisen out of a common impugned judgment dated 28.11.2024 delivered by learned Additional Session Judge, Abbottabad at Havelian in case FIR No. 181 dated 26.06.2020 registcrcd undcr Scction 17 (4) of the Ofl'cnces Against Propcrty (llnforcement of Hudood) Ordinance, I9l9 read with Sections 460 I 458 I 148 I 149 PPC and Scction 15 of the Khyber Pakhtunkhwa Arms Act. 2013 at Police Station Nara District Abbottabad, whcreby the appellants of both thesc appeals have bccn convicted and sentenced as lollows:-

"Appellant of this appeal namelY, Roshid Mehmood was convicted under Sections 458 PPC read with Sections 148 / 149 PPC and sentenced to imprisonment for fourteen (14) years with a fine of Rs.1,00,000/- or in default of payment of fine to further undergo three (03) monlhs S.l. He was also convicted under Section 496 PPC read with Section 460 PPC and sentenced to life imprisonment on two (02) counts with a fin, of Rs.5,00,000/- or in default to suffer further six (06) months S.I. He was further convicted under Section I5 of the Khyber Pakhtunkhwa Arms Act, 2013 and senlenced lo three (03) years R.I.

All the sentences were ordered to run concurrently with benefit o/' Section 382-B Cr.P.C.

Appellants of the connected appeal namely, (1) Asad and (2) Juved were d,l/ convicted under Sections 496 / 460 PPC read with Sections 148 / 149 PPC to ten (10) years imprisonment with a .fine of Rs.1,00,000/- each, or in default to suffer further three (03) months S.I with benefit of Section 382-8 Cr.P.C. "

2.'I'he backdrop of thc instant casc is that on 26.06.2020 thc cornplainant (Mst. Maria Zainab) while lodging report had charged three

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(03)unknown culprits lor comrnitting murder of hcr mothcr-in-law and attempting at thc life of her Iather-in-law, bcsides committing dacoity, hence, FIR No. 181 was lodgcd undcr Scction 17 (a) of thc Offcnces Against Property (Ilnforcement of Iludood) Ordinancc, 1979 read with Sections 460 I 458 I 148 I l49I'PC at I'>olice Station Nara District Abbottabad. After arrest o[ thc appellants, they were put to trial and the learncd trial court after conducting a full dresscd trial oonvicted them to diffcrcnt sentcnces, mentioncd above, vide irnpugncd judgment dated 28.11 .2024. Felt aggrieved of the impugncd findings of learned trial oourt, thc appcllants have filcd this and the connectcd appeal beforc this r:ourt on 05.12.2024 and 07.12.2024 respectively, which were admitted to rcgular hcaring on 14.01.2025. On 06.05.2025 o^/ Mr. Atif Ali Jadoon, Advocate, while submitting his powcr of attornoy on behalf of the complainant, rcqucstcd lor adiournmcnt on the ground of his bcing lrcshly engaged in the case, hcnce, thc casc was adjourned for today i.e.

3.During thc coursc of argumcnts, it came to limelight that although the appellants were

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indicted under Scction 17 (4) o1' the Offences Against Property (Enforcement of Hudood) Ordinance, 19J9, charge against them was also framed under thc Iludood Ordinance and trial in the case was conducted by the court of Session but whethcr (aggrievcd of thc ordcr / judgment passed by the court of Session) thcy werc rcquired to file an appeal beforc this court or before the Hon'ble Federal Shariat Court?

4.While answering the ibid question, learned counsel lor the appellants contended that although the appellants were charged under I{udood Ordinance but as they were convicted and sentenocd undcr 'I'adzir, thcreforc, the instant appeals have competently becn filed.

5.To the contrary, learned counsel appearing on behalf of thc oomplainant contended d/ that no doubt the appellants wcre convicted and sentenced under 'ladzir lbr an offence which was falling undcr I Iudood Ordinancc, therefore , the appellants werc requircd to move to Federal Shariat Court and not to this court.

6.In order to reach at a just conclusion, we deem it appropriate to mention here that Section 20 of thc Offcnccs Against Propcrty (Enforcement

of IJudood) Ordinance 1979 clcarly provides punishment for Ilaraabah liable to 'ladzir. For advantageous purpose Section 20 of the Ordinance is rcproduced bclow:-

"20. Punishment for haraabah liuble to tuzir. Whoever commils haraabah which is not liable to the punishment provided fitr in seclion 17, or for which proof in either of the forms mentioned in section 7 is nol available, or for which punishment of amPutation or dealh may not be imposed or enforced under this Ordinance, shall be awarded, the punishment provided in the Pakistan Penal Code (Act XLV of 1860) for the offence of dacoitY, robbery or extortion, as the case may be. "

./ From thc abovo quoted provision it has becomc clearer than crystal that if an accused is tried under Ifudood Ordinance, even thcn he can be punished under 'lahzir. Besidcs, the question involved in this and in thc conncctcd appcal had carlicr bcen brought bclbrc the llon'ble Federal Shariat Court in the casc of "Iiazal Din Vs. Tai Din" rcported as PLD 1983 FSC 33 whcrein it had elaborately becn discussed / decided in the Ibllowing tcrms: -

"The offence under Seclion 302 PPC is certainly an offence under a law other than the Ordinance but the Sessions Judge being competent to try both the offence with which the respondenl is charged, he could pass a sentences in a case tried by him under the Ordinance for an offence under the PPC also. What he could do can also be compelently done by an aPPellate court. Now proviso 2 of subsection (l) of Section 20 provides that "an offince punishable under this Ordinance shall be triable by a court of Session" and an appeal .fro* an order of the Court of Session shall lie to the Federal Shariat Courl. Proviso I of the same subsection permits lhe competent court (Sessions Judge in lhe present case) to try the offince under any other law also and award punishment thereunder. By virtue of this provision the trial and conviction by the Sessions "r/ Judge of any offince inter alia under the PPC becomes an offence punishable under this Ordinance for the purpose of appeal to lhe Federal Shariat Court. This can e the onlY reasonable interpretation of the two provisos of section (20) of the Ordinance. Any olher inlerpretation would lead to an unreasonable result that the order of conviction under two dffirent statues as a result of one trial

may be appealable in lwo dffirent forums. "

7.Al1er delivering the ibid verdict, the mattcr went bclore thc Ilon'ble Shariat Appellate Bench, which was maintained vide judgment passed in the case of "Tsi Din Vs. The Stote" reportcd as 1984 SCMR 506 by placing reliance on thc judgment dclivcrcd in the case of (a Ahhas & unother Vs. The State"

reportcd as 1984 SCMR 129 whcrcin the convict besides offencc under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was also convicted under Scction 302 PPC and sentenced to death, hcnce, appeal of the convict and murder referencc sent by the learned trial court were held to be maintainable before the I-Ion'blc licdcral Shariat Court. Relevant paragraph of the judgrnent rcads as under: - "As the trial by Court of Session under ,old the provision of the Ordinance was competent, the appeal would lie only before the Federal Shariat Court in view of the fourth proviso to Section 20 (l) and a reference for confirmation of lhe dealh senlence, to thal court would be competenl under subsection (2) of the said Section. The obiection too had

been rightly rejected by the Federal Shariat Court. "

8.In thc casc in hand initiallY the appellants were chargcd under Section 17 ($ ot the Offcnces Against Propcrty (Enforcement of Hudood) Ordinance, l9l9 alongwith Sections 460 1458 I 148 I 149 PPC as wcll as Scction 15 of the Khyber Pakhtunkhwa Arms Act, 2013 and at commencement of the trial, charge against them was spccifically framed under Seotion 17 (a) ot the Ordinance ibid, whereafter they were convicted and sentenced under Tadzir, thus, there is no bar, as discussed in the preceding paragraph, that Codc of Criminal Procedure 1898 shall not apply to the accused rather the provisions of Cr.P.C shall apply mutatis mutandis in respect of cascs under the Ordinanoc. For convcnient we crd would like to rcproducc Section 24 of the Ordinancc ibid, which rcads as undcr: - "24. Applicution of Code of Criminol Procedure, 1598.-(l) The provisions of the Code of Criminal Procedure, l89B (Act V oJ' lB9B), shall apply, mutatis mutandis, in respecl of cases under this Ordinance:

I'rovided that, if il appears in evidence that the offender has committed o

dffirent offence under anY olher law, he may, if the Court is competent to try that offence and to award punishment therefore, he convicted and punished for that offence,' Provided .furlher thal 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 of the said Code and an appeal ,from an order under either of the said sections, i or from an order under any provision of this Ordinance which imPose a sentence of imprisonmenl for a term exceeding two years, shall lie to the Federal Shariat Court,' Provided furlher lhat a trial by a Court of Session under this Ordinance shall c ordinarily be held at the headquarters of the Tehsil in which lhe offence is alleged to have been committed. " A glance over proviso (2) to Section 24 clearly dcpicted that punishrncnt exceeding two

(02)years shall lie to the Ifon'ble Federal Shariat Court. Reliance in this respcct may also be placed on the judgment dclivcrcd by I{on'ble Shariat Appcllate Jurisdiction delivercd in the case of "Muhammad Sh Vs. The State" reported as PLD 1999 SC 1063 where it was held as under: -

"We have given serious thought to the submissions of lhe learner c'ounsel for the parties and have also minutelY gone through the aforenoted judgments and the relevant provisions contained in four Hudood Laws i.e Offence of Zina (Effircement of Iludood) Ordinance, 1979 (Ordinance WI of 1979), (ffince of Qarf (Enforcement of l{add) Ordinance, 1979 (Ordinance VIII of 1979), the Prohibition Order (President's Order No.4 o.f 1979) and under the Offences against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance VI of 1979). A close study of the history of these four lludood Law and the amendments introduced therein from time to time show that when the oNf Prohibition Order as well as Ordinance VI of 1979 relating to Offences against Property were promulgated in 1979, provisions of section 24 of Ordinance 1979 and Article 27 of the Prohibition Order contemplated trial of the offence by ordinary criminal Courts and the appeals to be heard and decided by the forum provided by the Code of Criminal Procedure. Both these provisions provide that unless otherwise provided, the provisions of Code of Criminal Procedure, 1898 shall apply mutatis mulandis in respect

of cases under the Ordinance/Order. In 1980 Federal Shariat Court was established and vide Presidential Order No.5 of l9B0 second proviso was added to Article 27 of the Prohibition Order (P.O. No.4 of 1979) and vide Ordinance No.XIX of 1979 (second proviso was added in section 24 of Ordinance No.VI of 1979 relating to Offences against Property whereby offinces punishable under Article B of the Prohibilion Order and the offinces punishable under section 9 or section 17 of Ordinance No.VI of 1979 (Offences against Property) were made triable exclusively by a Sessions Court; and orders passed under the said Article/sections were made appealable before the Federal Shariat Court. " 9 It is also to be borne in mind that proviso

(2)to Section 24 of the Offences Against Property o,rd (Enforcement of Hudood) Ordinance, 1979 provides that the provisions of the Code of Criminal Procedure, 1898 shall apply mutatis mutandis, poses no difficulty in preferring the aforenoted interpretation.

10.There is no denial to the factum that although the appellants were booked under the Iludood Ordinance and charge against them were frarned under the said ordinanoe but after

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conduoting a full-fledged trial they were convicted and sentenced under 'lahzir, however, yet keeping in visw thc abovc slaboratcd discussion the appellants were required to movc their appeals befbrc the Hon'ble liedcral Shariat Court and not before this court as mcrc passing of sentence undcr 1'atv,ir was not thc detcrmining factor for forum of appeal rather it would be the charge that determined the forum of appcal.

I l. In view ol- what has been discussed hereinabove, we feel no hesitation to hold that this and the connected appeal, being not competently filcd before this court. stand transferred to the IIon'ble l;edcral Shariat Court of Pakistan with direction to Additional I{egistrar of this court to send these appeals alongwith rccord forthwith by retaining copy of mernorandum of each appeal for offioe record. Order accordingly

Announcod:

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JUDGE

[/tn'ble lvlr. ,lustice Sadiq Ali Ilon'hle lvlr. Ju.slice Aurongzeb /"Saif ,\C,\*/