IN THE HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD
Criminal Acquittal Appeal No. S-68 of 2014
(Zulfiqar Ali Baloch Vs. Parkash & others)
Date of hearing : 07.10.2016.
Date of order : 08.11.2016
Appellant : Zulfiqar Ali Baloch, through Mr. Muhammad Jamil Ahmed associate of Mr. Ishrat Ali
Respondents 1 & 2 : Parkash and Gagandas, through Mr. Inam Ali Malik, Advocate.
Respondent No.3 : The State, through Shahid Ahmed Shaikh, Assistant Prosecutor General Sindh along
with SIP Saleem Arain, on behalf of SHO A-Section, Latifabad, Hyderabad
J U D G M E N T
MUHAMMAD SALEEM JESSAR, J: - The Appellant has assailed an order dated 17.04.2014 (hereinafter referred to as the “Impugned Order”) passed by learned Ist Additional District & Sessions Judge, Hyderabad in Sessions Case No.518 of 2013, re. State Vs. Parkash and another.
2. The Impugned Order arising out of Crime No.174 of 2012, registered with Police Station A-Section Latifabad, Hyderabad for the offence punishable under Section 347, 504, 506(2), 34 PPC, read with Article 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
3. It will be essential to go through the allegations contained in F.I.R. No.174 of 2012 filed by present appellant / complainant, which goes to say as under: -
4. Brief facts of the case are that complainant Zulfiqar Ali Baloch son of Mazhar Ali lodged F.I.R. at P.S. A-Section Latifabad, Hyderabad on 10.08.2012 at 1230 hours stating therein that “complainant has purchased Hi-roof vehicle bearing Registration No.5610 from one Parkash of Bhit Shah in the sum of Rs.346,000/- and paid the amount in cash to him, who promised to handover the file but despite request of complainant he did not give the file of the vehicle. After some days, Parkash along with his friend Amanat and Sadar alias Sardar came at Hyderabad and had given Mehran Car No.ANW-018 to the complainant and obtained Rs.100,000/- and Hi-roof vehicle from him and promised to give the file within 2/3 days after collecting documents from the bank and praying Rs.30,000/- but they did not given the file and told that they have Cultus Car Model 2009 and asked the complainant to receive the same but first arrange Rs.380,000/-. On 06.08.2012 after Aftari they phoned the complainant that they are coming from Tando Muhammad Khan in Cultus Car and told the complainant to come at backside of Majee Hospital along with amount and Mehran Car NO.lANW-018. The complainant having Rs.365,000/- and vehicle reached in the street near Fire Brigade at 8.30 PM. Parkash, Sadar alias Sardar and Amanat came and told the complainant that the owner of car is sitting in the car, brought him there and then sat in the car, where a person with muffled face was sitting and unknown person was sitting on driver seat, they took out cash Rs.365,000/-, mobile phone and cash of Rs.4500/- from the front pocket of his shirt on the point of weapons so also key of Mehran Car. Saddar alias Sardar was sitting beside the complainant the key of Mehran Car was given to Amanat, who drove away the car. They folded the eyes of the complainant and abducted him away at unknown place where they illegally confined, maltreated and tortured him. They told the complainant that previously they committed murder of a person who was demanding amount from which such F.I.R. was lodged but Amanat was released on bail they told the complainant that if he demanded the amount, they would commit his murder. The accused again folded the eyes of the complainant and released him at 1030 hours at Bhit Shah, from where the complainant came at Hyderabad and narrated the incident to his cousins Nawaz Baloch, Naveed Baloch and Shabbir Hussain Memon Advocate and then filed an application in the court and after obtaining order, he appeared at Police Station and lodged the F.I.R.
5. After registration of the case, police concerned started investigation and after completion of legal formalities had submitted the report / challan in terms of Section 173 Cr.P.C. before the competent Court of law having jurisdiction on 07.08.2012, under section 347, 504, 506(2), 34 PPC read with Article 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Learned trial Court while entertaining the application under Section 265 (K) Cr.P.C., filed by Respondents No.1 and 2, has acquitted them under Section 265 (K) Cr.P.C, however, has kept case on dormant file against absconding co-accused Amanat, Salamat alias Foji and Saddar alias Sardar, with observation that side of prosecution will be opened as and when absconding accused may surrender or be brought before the Court by following dictum of this Court given in case of Arshad Hussain Vs. the State reported as P L D 2001 Karachi 211.
6. At the very outset of the arguments, the question for determination came before this Court as to whether the appeal against acquittal order under section 265(K) Cr.P.C. recorded by learned trial Court under the offences against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979) is competent and maintainable before this Court or not.
7. The learned counsel for the appellant / complainant, learned counsel for the Respondents and the State have been heard at length in support of their respective contentions.
8. Mr. Muhammad Jameel, learned counsel for the appellant vehemently contended that the appeal against acquittal order, to the High Court, is competent, keeping in view the relevant articles of the Offences Against Property (Enforcement of Hudood), Ordinance, 1979 (hereinafter to be referred as the “Ordinance”) on the grounds:
a) Under the scheme of Ordinance, appeal against the acquittal order has not been provided, therefore, on account of application of Cr.P.C. by virtue of Article 24 of the Ordinance, the appeal would be competent before the Sessions Judge or the High Court, as the case may be.
b) The jurisdiction of High Court has not been expressly ousted to appeal against an acquittal order, therefore, it has been competently filed, and the jurisdiction of the High Court has been curtailed only to appeal against the sentence, if it extends beyond the period of imprisonment of two years, by virtue of second proviso to Article 24 of Ordinance.
c) Since the right of appeal against an acquittal order / judgment has been provided under Section 417(2-A) Cr.P.C., therefore, it will be read in conjunction to subsection (1) of Section 417 Cr.P.C., and appeal thus would only be competent before High Court.
Learned counsel in support of his contention has placed reliance upon the following case law: -
1. 2015 P. Cr. L J 203
2. 1997 S C M R 1136
3. 2009 P Cr. L J 747
4. 1999 P Cr. L J 1761
5. 2012 P Cr. L J 1491
6. 2005 S C M R 1544
9. Mr. Inam Ali Malik, learned counsel for Respondents No.1 and 2 controverted the arguments and contentions advanced on behalf of the appellant and submitted that in view of the provisions of articles 20 and 24 of the Ordinance No.VI and VII of 1979, which being special law has specifically conferred jurisdiction to the Federal Shariat Court in case of conviction for a period extending two years imprisonment, if awarded by the trial Court, irrespective of such conviction being under any of the offence defined and made punishable under the Ordinance or within its purview under any of sections of P.P.C. and appeal against acquittal order for any or all of the offences under the Ordinance or P.P.C. would also lie only before the Federal Shariat Court.
10. Mr. Shahid Ahmed Sheikh, Assistant Prosecutor Sindh along with SIP Saleem Arain, on behalf of SHO A-Section Latifabad (Hyderabad) while adopting the submission of learned counsel for Respondents has also argued that appeal against acquittal would lie before the Shariat Court and not before the High Court.
11. Since a legal point has arisen touching the jurisdiction of this Court, therefore, it would be in all fairness to deal with the same first. However, before dilating upon merits of the case, I would like to give brief history for constitution of Federal Shariat Court. The Federal Shariat Court was constituted under Article 203C of the Constitution of Islamic Republic of Pakistan, 1973. Under Article 203D, the powers, jurisdiction and functions of the Federal Shariat Court were initially confined to original jurisdiction to examine and decide the question whether or not any law or provision of law was repugnant to the injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (Peace Be Upon Him). No other jurisdiction was conferred upon the Federal Shariat Court. The final decision given under this Article was challengeable in appeal before Hon’ble Supreme Court of Pakistan under Article 203F for the purpose of the performance of its functions, the Federal Shariat Court has been given the powers of Civil Court trying a suit under the Code of Civil Procedure in terms of Article 203-E of the Constitution of Islamic Republic of Pakistan, 1973. By virtue of the Constitution (Second Amendment) Order, 1980 (P.O. No. 4 of 1980) promulgated on 21.06.1980 by this amendment, inter alia, the following Article 203DD was inserted in the Constitution, according to which further jurisdiction could be conferred on Federal Shariat Court by or under any law.
[203DD. Revisional and other jurisdiction of the Court.– (1) The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
(2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence:
Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence.
(3) The Court shall have such other jurisdiction as may be conferred on it by or under any law.]
12. Simultaneously, on the same day i.e. 21.06.1980, the following statutes were enacted making necessary amendment in the relevant laws conferring appellate jurisdiction upon the Federal Shariat Court, which read as follows:-
(i) The Prohibition (Enforcement of Hadd) (Amendment) Order, 1980 (P.O. No.5 of 1980)
(ii) The Offences Against Property (Enforcement of Hudood) (Amendment) Ordinance, 1980 (XIX of 1980)
(iii) The Offence of Zina (Enforcement of Hudood) (Amendment) Ordinance, 1980 (XX of 1980)
(iv) The Offence of Qazf (Enforcement of Hadd) (Amendment) Ordinance, 1980 (XXI of 1980).
13. Hence, it was for the first time on 21.06.1980, the Federal Shariat Court was vested with the powers of Court of Appeal under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the Offence of Qazf (Enforcement of Hadd), Ordinance, 1979 and the Prohibition (Enforcement of Hadd), Order, 1979.
14. Now in the instant case, I am concerned with the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979) as amended (hereinafter referred to as the “Ordinance 1979”). The following further proviso was added in Article 24(I) of the Ordinance by Ordinance No. XIX of 1980 as referred above.
15. Before dilating upon the merits and as to the legality of the question arose, it will be advantageous to reproduce the contents of Article 24 of the Ordinance, which reads as under: -
“24. Application of Code of Criminal Procedure, 1898 (Act V of 1898). (1) 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 committed 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 authorized under Section 30 of the said Code and an appeal from an order under either of the said sections [or from an order under any other provision of this Ordinance which impose a sentence of imprisonment for a term exceeding two years] 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) The provision 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 sub-section (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.”
16. This proviso has brought about two material changes i.e. firstly the offences under the Ordinance, which earlier were triable by a Magistrate (vested with powers under Section 30 Cr.P.C) have been made triable by a Court of Sessions and secondly, the Federal Shariat Court was made the Court of Appeal against an order of the Court of Sessions.
17. Since the Code of Criminal Procedure, 1898 has been applied ‘mutatis mutandis’ in respect of cases under the Ordinance, consequently as Court of Appeal, the Federal Shariat Court can exercise all the powers of Appeal vested / given to it under the said Code (Chapter XXXI). The Federal Shariat Court can examine question of law or question of fact or question of mixed law and fact. In other words, the Federal Shariat Court has been given unfettered powers of appeal to examine any aspect of the case, whether relating to appreciation of facts or of law. Article 24 of the Ordinance imposes no restriction whatsoever on the jurisdiction of Federal Shariat Court. While exercising appellate jurisdiction, the Federal Shariat Court can quash, confirm, vary or modify the conviction or sentence awarded by a Court of Sessions. The Federal Shariat Court also has the power to enhance the sentence after affording adequate opportunity of defense to an accused.
18. It is well settled principle of law that a general law always gives way to the Special Law on the subject. Upon the promulgation of Ordinance No.VI of 1979, the offences defined and made punishable under it are pursuant to its provisions, hold the field, as against such offences specifically dealt with under the P.P.C. The Special Law i.e. (Ordinance VI of 1979) had been enacted to modify the existing law relating to certain offences against property, so as to bring the existence law on subject in conformity with injunctions of Holy Quran and the Sunnah. The object of the lawmaker was quite transparent and manifest not only by its preamble rather positive change brought in the structure of definition of offence of Theft and Harrabah. The constituting ingredients of the offences and the prescribed standard of required evidence for imposition of Hadd punishment and the cases in which the Hadd punishment is not to be imposed, have been dealt with specifically. The scheme of the Ordinance and its provisions substantially is a departure of the subject from the relevant provision of the P.P.C. except to the extent of punishment of such an offence by way of Tazir. Article 26 of the Ordinance deals with the attempt to commit an offence punishable by the Ordinance which provides that in absence of any provision and the Ordinance, itself for the punishment of such an attempt; the offender shall be punished with imprisonment for either description or a term which may extend to 10 years. Thus for all intents and purposes, the Ordinance is a Special Law, therefore, the General Law on the subject will lean in favour of the Ordinance on the subject covered by it. Moreover; by virtue of Article 3, of the Ordinance; an overriding effect notwithstanding anything contained in any other law for the time of in force has been given.
19. Article 20 of the Ordinance provides punishment for the offence of Harrabah by way of Tazir if not liable to the punishment provided for in Article 17 of the Ordinance or for which required proof under Article 17 is lacking or for which the punishment of amputation or death may not be imposed or enforced under the Ordinance shall be awarded punishment according to the provisions of Pakistan Penal Code, 1860, for the offence of dacoity or extortion, as the case may be. The qualified punishment under PPC as envisaged by Article 20 of the Ordinance will not ipso facto restore or reverse the forum of appeal as it stood prior to the enforcement of the Ordinance except to the extent provided in the Ordinance itself. The words in respect of the cases under this Ordinance used in subsection (1) of Article 24 of the Ordinance, are the qualifying words having specific reference to the cases falling or covered under any of the provisions of the Ordinance; which definitely include the offences punishable by way of imprisonment under the relevant Sections of PPC and thus not excluding such offences from the ambit of Ordinance. The contention of learned counsel for the appellant that in cases where the punishment under relevant section of PPC is to be awarded but not so imposed the order of acquittal would be appealable to the forums of appeal provided under the Code of Criminal Procedure; to my mind is without any substance and force for the reason that by virtue of second proviso to Article 24 of the Ordinance, forum of appeal from an order under Article 9 and 17 or from an order any other provisions of the Ordinance imposing the sentence of imprisonment for period of more than two years shall be the Federal Shariat Court. Thus, the second proviso determines the forum of appeal, therefore, appeal against sentence of imprisonment for a terms not exceeding two years under any provision of Ordinance except under Article 9 or 17 of the Ordinance shall lie to High Court and in any other case to the Federal Shariat Court. While interpreting the statute or any provision of law, the object of the particular enactment and its provisions are to be looked into, to ascertain its true intent, import, purpose and object from the statute itself. To enter into the arena of construction of a statute, the harmonious interpretation of such enactment is to be made which in no way makes redundant or superfluous any provision of the law or to result in causing any conflict within the provisions or to its object. The lawmaker / legislature makes and enacts laws to be effective, consistent, purposeful and objective and the Superior Courts while interpreting the statute to advance and harmonious object, intent and purpose of law and not to make any provision redundant or ineffective. As such it cannot be legitimately conceived that the Ordinance within the purview of Article 24 created different forums for appeals against acquittal orders. Therefore, the arguments of learned counsel for appellant that due to the applicability of Cr.P.C. mutatis mutandis in respect of cases under the Ordinance, the appeal against acquittal order would lie to High Court is not sound and tenable as the second proviso controls the subsection (1) of Article 24 of the Ordinance. Therefore, it will be read subject to the proviso and not independently.
20. According to the first proviso to Article 24 of the Ordinance, if it appears in evidence that offender had committed a different offence under any other law, he could be connected for such an offence by the Court provided the Court is competent to award punishment, includes the Court of Sessions or Magistrate, as the case may be, subject to the exception of trial of offence under Article 9 or 17 of the Ordinance by Court of Sessions under the second proviso to Article 24, thus, the first proviso to this specified extent is controlled by the second proviso and in this context the pleas of learned counsel that it includes the filing of appeal against acquittal order in respect of an offence other than the offence defined and punishable under the Ordinance, shall lie to the court of Sessions or High Court, as the case may be, is devoid of any force. Under the second proviso to Article 24 of the Ordinance, Federal Shariat Court has been expressly termed and specified to be the Court of appeal, whereas: for limited purpose of the case where the sentence of imprisonment not exceeding two years has been passed and appeal shall lie to High Court except against an order under Article 9 or 17 of the Ordinance. Thus, the Principal Court of appeal is the Federal Shariat Court and not a High Court
21. As discussed above, the provisions of Cr.P.C. on the strength of subsection(1) of Article 24 applies with full strength and extent, to the cases under the Ordinance, but is subject to the qualifying provisions of the second proviso to the said Section, therefore, section 417(2-A) Cr.P.C. will not be attracted to the extent of the forum of appeal against an acquittal order as provided in subsection (1) of Section 417 Cr.P.C. rather in accordance with the second proviso to Article 24 of the Ordinance, such an appeal would lie to the Federal Shariat Court being the ulterior Court of appeal.
22. In the cited case of Muhammad Khan Vs. the State titled as 1987 P. Cr L J 1240, whereby the learned Single Bench of Lahore High Court while returning the appeals to appellant for presentation before the proper forum has held in para 5, of the aforementioned Judgment as under: -
5. The first proviso says that if the evidence recorded during the trial held under Ordinance 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’ convers 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.
23. The Federal Shariat Court in its Judgment reported as Fazal Din Vs. Taj Din reported as P L D 1983 Federal Shariat Court 33 has held 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 19(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.
24. To make things rather easy, it would be appropriate to refer operative part of the case of Aijaz v. State 2016 P Cr.L.J 130 wherein it was concluded that:
’16. After going through Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1979, section 24 of the Ordinance VI of 1979 and judgments cited above by the learned counsel for the complainant, I am also of the view that the appeal against acquittal order in a case tried under section 17(4) of the Ordinance, 1979 also stands covered under section 24 of the said Ordinance read with Article 203-DD of the Constitution and it is exclusive jurisdiction of the Federal Shariat Court to entertain, hear and decide appeals in such cases. FIR in this case was registered under section 17(4) Offence Against Property (Enforcement of Hudood) Ordinance , 1979 and charge was also framed under that section and appellants were tried for the said charge. Result of the trial shall not change the jurisdiction of the court. The view taken by Mr. Shar, learned counsel for the appellants is not based on correct appreciation of law, hence liable to be ignored.
25. In view of above discussion and the citations referred to above, I am inclined to hold that even for the offences other than those defined and made punishable under the Ordinance or punishable under any other law for time being in force within the ambit of the Ordinance, whether it results into conviction of imprisonment or into an order of acquittal passed by a competent Court, appeal would lie to the Federal Shariat Court only due to the jurisdiction having been so conferred to the Federal Shariat Court. (underlining are mine)
26. Keeping in mind, the principles of interpretation of statutes that it should advance the remedy, to save rather destroy the statute and to meet with certain contingencies not provided for in the statute; beneficial construction of enactment is to be made and for the reasons given hereinabove, I am of the considered view that against an order of acquittal for the offence(s) tried within the ambit of Ordinance VI of 1979 appeal shall lie only to the Federal Shariat Court. Resultantly, instant appeal against acquittal filed by the appellant in this Court, is not maintainable, therefore, is ordered to be returned to the appellant for its presentation to the competent forum if so desired.
27. Office is directed to return the memo of appeal along with all annexures to the appellant through his counsel for presentation of the same before Federal Shariat Court by retaining its Photostat copies for record of this Court.
28. Instant appeal against acquittal stands disposed of in the above terms.