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Petitioner: SALAM alias TOOR JAN VS Respondent: The STATE
Court Name: Federal Shariat Court Judge(s): Sheikh Ahmad Farooq, Muhammad Jehangir Arshad, Shahzado Sheikh Title: SALAM alias TOOR JAN vs The STATE Case No.:Criminal Appeals Nos.1/Q, 2/Q and Criminal Murder Reference No,1/Q of
JUDGMENT
Reported As: 2013 P Cr. L J 1461 Result: Sentence reduced Judgment JUDGMENT ' SHAHZADO SHAIKH, J.--- Appellant/Salam alias Toor Jan has filed Criminal Appeal No,1/Q of 2012 against the judgment dated 10-4-2012 passed by the learned Additional Sessions Judge, Pishin, in Hadood Case No, 23 of 2007, whereby he was convicted under section 302(b), P.P.C. And sentenced to death with order to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased/Hafiz Dost Muhammad. He was also convicted under section 392, P.P.C. And sentenced to eight years' R.I. With fine of Rs,10,000 or in default thereof to further undergo three months' S.I. However, the learned trial Court kept the case file dormant to the extent of absconding accused Abdul Ali alias Kochi. ' The appellant has also filed Criminal Appeal No,2/Q of 2012 against the judgment dated 10-4-2012 passed by the same learned trial Judge in Arms Case No, 25 of 2007, whereby he was convicted under section 13-E of the Arms Ordinance, 1965 and sentenced to three years' R.I. With fine of Rs,3,000 or in default thereof to further undergo two months' S.I. The benefit of section 382-B, Cr.P.C. Was extended to the appellant in both the above-mentioned judgments. The learned Additional Sessions Judge, Pishin has also sent murder reference for confirmation of death sentence, which was registered as Criminal Murder Reference No,1/Q of 2012. ' Through this consolidated judgment, we intend to dispose of above-mentioned three connected matters as they arise out of the same occurrence. 2. Criminal Appeal No,2/Q of 2012 against the judgment dated 10-4-2012 passed by the same learned trial Judge in Arms Case No,25 of 2007, whereby the appellant was convicted under
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section 13-E of the Arms Ordinance, 1965, has been transferred by the Hon'ble High Court of Balochistan, vide order dated 30-11-2011 due to lack of jurisdiction. 3. Since an important question of jurisdiction was raised in this case, it is therefore, imperative to consider the same, first. 4. The Hon'ble High Court of Balochistan, while discussing this issue, in their revered order, dated 30-11-2011 leading to the transfer of this case to the Federal Shariat Court, analysed very ably its legal aspects and concluded in the interest of delivery of justice as follows:-- "(7) The main controversy in this case is whether these Jail Appeals filed under section 410 of the Code of Criminal Procedure, 1898 and Murder Reference No,1 of 2008, sent by the Additional Sessions Judge, Pishin, as required under section 374 of the Cr. P. C. For confirmation of the death sentence or otherwise, are competent before this Court within the purview of section 24 of the Ordinance of 1979. For better understanding of the proposition, it would be appropriate to reproduce herein below section 24(2) of the Ordinance of 1979: "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." ' There is no cavil to the proposition that the sentence awarded under the Hudood Laws requires confirmation, however, the question arises as to whether the said confirmation is to be made by the High Court within the meaning of section 374 of the Cr.P.C., or by the Federal Shariat Court, which is the appellate Court under the Ordinance of 1979? Under the Ordinance of 1979, there are two provisions, whereunder the sentence passed in an offence under the Hadood Laws requires confirmation by the appellate Court i.e, section 9(4) and section 17(5) of the Ordinance of 1979, which speak as under: "S. 9(4) Punishment under subsection (1) or subsection (2) shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, and, until the punishment is confirmed and executed the convict shall be dealt with in the same manner as if sentenced to simple imprisonment. ' S. 17(5) Punishment under subsection (3), except that under the second proviso thereto, or under subsection (4), shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, and if the punishment be of amputation, until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment." (8) A bare perusal of the above quoted provisions leave no room for doubt that the death sentence passed by the Additional Sessions Judge in respect of a case registered under section 17(4) of the Ordinance of 1979, requires to be confirmed by the Federal Shariat Court, irrespective of the fact that the sentence that has been awarded was by way of ta'zir. (9) Thus in view of the above position, the forum for confirmation of the death sentence was the Federal Shariat Court and not the High Court. (10) Reverting to the fate of Criminal Jail Appeals Nos.8 and 9 of 2008, we are of the considered view that in pursuance of Article 203-DD of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), appellate criminal jurisdiction against the order of a Sessions Judge, holding trial under the "Hudood Ordinance" has been conferred upon the Hon'ble Federal Shariat Court vide second proviso to section 24(1) of the "Hudood Ordinance" which provides 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 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 punishment thereof be
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convicted and punished for that offence: Provided further that the offence punishable under this Ordinance shall be triable by a Court of Sessions and not by a Magistrate authorized under Section 30 of the said Code and an appeal from an order under either of the said section or form an order under any other provision of this Ordinance which imposes sentence of imprisonment for a term exceeding two years, shall lie to the Federal Shariat Court." (11) A reading of the above provision of the Ordinance of 1979 clearly demonstrate that offences punishable under the "Hudood Ordinance" are exclusively triable by a Court of Session and an appeal from the order of the Court of Session thereunder lies to the Hon'ble Federal Shariat Court. It has also been provided therein that if an offender has committed different offences, out of which, one is covered by the Hudood Ordinance and the other by some other law, then if the Court is competent to try that other offence or offences and to award punishment, then that offence or offences will also be tried along with the offence under the "Hudood Ordinance". The only condition is the holding of a trial under the "Hudood Ordinance" for maintainability of an appeal before the Hon'ble Federal Shariat Court. While considering the case of the appellant on the touchstone of above stated criteria, the record reveals that the F.I.R. Has been lodged under section 17(4) of the Ordinance of 1979, challan was submitted and forwarded by the Assistant District Attorney under section 17(4) of the Ordinance of 1979 and the cognizance of the case was taken by the Additional Sessions Judge, Pishin, under the Hudood Laws that is why the case was registered as Hudood Case No,23 of 2007 as well as the charge dated 30th August, 2007 was also framed under section 17(4) of the Ordinance of 1979. Thus, the instant appeals should be filed before the Hon'ble Federal Shariat Court being the competent forum. By holding the view, we are fortified by the dictum laid down by the Hon'ble Supreme Court in an unreported case of "Bashirullah v. The State", vide order dated 8th February, 2001, wherein it has been held as under: "We have heard both the sides at length and perused the file as well as various judgments cited at the bar. As far the facts of this case are concerned, they would be the determining factor, as far the question of jurisdiction is concerned. In the instant case, complainant was deprived of his Datsun Pick-up and the driver was done to death in the same 'transaction, therefore, police rightly applied section 17(4) ("Haraabah") of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Learned trial Court framed the charge under section 302/34, P.P.C. As well as under section 17(4) ("Haraabah") of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. At the conclusion of the trial benefit of doubt was given to the accused for lack of absolute proof as far as offence of Haraabah was concerned. But the offence of murder was established and they were accordingly convicted. The proposition in the instant case would be, if the complainant wanted to impugn the judgment by challenging acquittal of the accused for Haraabah offence, obviously, an appeal against acquittal had to be filed before the Federal Shariat Court and in such circumstances argument that appeal against conviction would lie before the High Court, would be most illogical. Jurisdiction of Court has to be determined in such like cases at the time of framing of charge, which was exclusively of Shariat Court as far the present case is concerned." ' We, therefore, hold that Article 203-G of the. Constitution is a barring provision conferring exclusive jurisdiction on the Federal Shariat Court in respect of all those matters, wherein the proceedings fall within the powers of jurisdiction of the Court. Thus, these appeals as well as the murder reference are not maintainable before this Court. Resultantly, the files of the aforesaid appeals and murder reference along with original records be sent to the In-charge, Federal Shariat Court, Quetta Registry, to be placed before a Bench of Hon'ble Federal Shariat Court for consideration, after retaining photocopies thereof for record purposes."
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' Following may provide pointers to further understand the wisdom and judicial make up of mind behind the above magnanimous conclusion of the honourable High Court of Balochistan. ' Let us, at the outset, examine lexical and legal nuance of the terms jurisdiction, transaction, and episode, which are very important in the question under consideration. Jurisdiction of the court is its right and power to interpret and apply the law, i.e,, the right or power to administer justice and to apply laws. It defines the exercise or extent of such right or power or authority, specific and general. ' There are different types of jurisdiction which add enough scope and flexibility to its basic concept in order to meet various situations of adjudication in order to ensure full justice, e.g.: ' PENDENT JURISDICTION (pen-dent). A Court's jurisdiction to hear and determine, a claim over which it would not otherwise have jurisdiction because the claim arises from the A same transaction or occurrence as another claim that is properly before the court. For example, if a plaintiff brings suit in federal court claiming that the defendant, in one transaction, violated both a Federal a State law, the federal court has jurisdiction over the federal claim (under federal- question jurisdiction) and also has jurisdiction over the State claim that is pendent to the federal claim. Pendent jurisdiction as now been codified as supplemental jurisdiction. 28 USCA 1367.---Also termed PENDENT-CLAIM JURISDICTION. See SUPPLEMENTAL JURISDICTION. Cf. ANCDLARY JURISDICTION. (Cases: Courts =27; Equity =35; Federal Courts =14. C.J.S. COURTS 66;, EQUITY 9, 80, 87.] (Black's Law Dictionary) ' Transaction may mean the act of transacting (within or between groups) or the fact or state of being transacted, or something transacted. It connotes dealing(s), including group action(s). It also means affair(s), operation(s). ' In nearer terms in Arabic and Urdu, transaction may be translated as ' In general, meanings of the term transaction include deal, matter, affair, act, operation, business, action, event, proceeding, enterprise, undertaking, deed, occurrence, performance, handling, settling, conduct, execution. ' Transaction is the act or an instance of conducting business or other dealings;... Something performed or carried out; any activity involving two or more persons. (Black's Law Dictionary) The term 'episode' comprehends meaning and nuance of an incident or scene in the course of a series of events, etc., within a narrative, integrated within the main story or digressing from it one of a number of loosely connected, but thematically related, scenes or events constituting an occurrence; event, or series of events (Dictionary.Com, Collins English Dictionary). ' Now let us examine nuance of these terms in legal parlance and practice. Honourable apex Court and Higher Judiciary have laid down elaborate principles while dealing with question of jurisdiction, e.g.:-- ' Jurisdiction means the power of administering justice according to the means which law provides, and subject to the limitations imposed by law and such limitations may be territorial or pecuniary or that may relate to the nature of litigations. ABDUL HAQUE v. SUKHIAL KARACHI HIGH COURT SINDH 2006 CLC 286. ' In the present case neither territorial nor pecuniary question is involved. So far nature of litigation is concerned, the same will come under discussion in following pages. ' Such question being of fundamental nature in judicial proceedings should be decided first on priority basis without recording evidence on issues relating to merits of the case---Where court once consumed time in recording evidence, then effort should be made to dispose of case both on law points including question of Jurisdiction as well as on merits--Principles. Hafiz MUHAMMAD SIDDIQUE ANWAR v. FAISALABAD DEVELOPMENT AUTHORITY 2007 SCM R 1126.
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' In view of the above important principle, the learned counsel for appellant, at the outset, was asked to satisfy the Court on the legal position of its jurisdiction. ' It may be pertinent to point out that although the offence under section 13-E of Arms Ordinance, 1965 in F.I.R. No,40 of 2007 dated 20-6-2007 was triable by the Magistrate, but the same was tried by the learned Additional Sessions Judge, Pishin, vide judgment dated 10-4-2008. Appeal against conviction was filed by the appellant/accused, before the honourable High Court of Balochistan, Quetta, who vide its order dated 30-11-2011, transferred the Appeal to this Court, which was registered here as Criminal Appeal No,2/Q of 2012 on 2-1-2012. Taking some guide line, from the case law, quoted above, (2007 SCM R 1126), time consumed, its costs and human agony, involved in any proposition, if brought for directing the Parties to approach different forums, in split jurisdiction, at this stage, would also need the given appropriate and due consideration. ' Jurisdiction of a Court was always the core question, which had to be dealt with immediately to the exclusion of all other business, because that was what would decide the competence or otherwise of a Court or Tribunal to proceed further in the matter AAMIR KHURSHID MIRZA v. STATE 2006 CLD 568 LAHORE HIGH COURT. ' While examining different aspects of the question of jurisdiction, following has also been kept in view:-- Whenever any Court exercises normal appellate jurisdiction, it can exercise all the powers which are vested in forums below for the reason that appeal is continuation of original proceedings. TOWELLERS LTD. Through Chief Operating Officer v. GOVERNMENT OF PAKISTAN 2006 PTD 310 SINDH HIGH COURT. ' Jurisdictional objection could not be accepted without determination. AL-KHA IR MIRPUR (PVT.) LTD. v. PAKISTAN through Secretary Ministry of Finance and Economic Affairs 2005 PTD 1596 LAHORE HIGH COURT. ' Term "Jurisdiction" which refers to legal authority and competence of Court to administer justice is conferred by law only---Jurisdiction can neither be conferred nor ousted by consent--- Submission to Jurisdiction will not confer the Court with Jurisdiction where same did not exist. MUHAMMAD SADIQ v. Government of PAKISTAN 1988 CLC 123 LAHORE HIGH COURT. ' In the present proposition neither the conferment nor ouster of exclusion of jurisdiction is constituted in specific terms. Following also needs to be considered carefully:-- Exclusion of Jurisdiction of Court not to be readily inferred---Statute should not be construed as to oust or restrict jurisdiction of Court, unless very explicit words are used in statute itself in that behalf---Such an intention should not normally be imputed to Legislature. CAPITAL ASSETS LEASING CORPORATION LTD v. INTERNATIONAL MULTI LEASING CORPORATION LTD 2003 CLD 1713 LAHORE HIGH COURT. ' The most important guiding principle in this regard is found in the following:-- ' Ouster of Jurisdiction of superior Courts---Not to be lightly inferred---In case of doubt, same be resolved in favour of Jurisdiction rather than its ouster. Sh. MUHAMMAD RIAZ v. GOVERNMENT OF THE PUNJAB 2003 PSC 1496 LAHORE HIGH COURT. If the Court had Jurisdiction to make an order it had necessarily the power and Jurisdiction to enforce the same and the law does not allow its machinery to be clogged in this respect. KHAAVIR SAEED RAZA v. WAJAHAT IQBAL 2003 CLC 1306 LAHORE HIGH COURT. ' Here it is important to note that 'power and jurisdiction to enforce' have to be facilitated and strengthened, i.e,, not to be weakened or hindered, in order to save its machinery from being clogged. ' At this point, in the light of the above guiding principle, it may be very appropriate to refer to the inherently necessary Revisional power and jurisdiction of Federal Shariat Court in "any case
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decided by any criminal court under any law relating to the enforcement of Hudood": Article 203DD of the Constitution prescribes as follows:-- (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...." ' It devolves much wider responsibility on Federal Shariat Court It grasps correlated or inter-related episodes interlaced in one or the same composite transaction (occurrence or offence comprising series of episodes in the same transaction), by using the phrase: "relating to the enforcement of Hudood", in any case, decided by any criminal court, under any law. ' This is because trial and punishments may be interrelated in such specific composite transactions and provisions dealing with one crime and its consequent punishment(s) are dove-tailed with other punishments related to the same matter or same transaction. A person may be found guilty of multiple crimes in theme episode. In such a situation it is not without hardship to all concerned and consequent legal complications arising from practicable potentialities of conflicting or inter- affecting findings. This could work to the serious disadvantage of the Parties, and would certainly be a source of delay, and all attendant unnecessary effects. Witnesses suffer equally on account of multiple litigation. ' Furthermore, it requires consideration of the possibly attending ineffectuality to prosecute and punish under parallel laws in separate jurisdictions or under parallel systems. ' All this may not be judicially desirable, in such specific situations of avoidable costs and cumbersomeness, within established legal frame, in the larger interest of justice. ' In fact, principles of 'offshoots' and 'arising from the same transaction' are recognized by the Superior Judiciary of this Country, in order to maintain uniformity in the harmonious manner dispensation of justice. Consider the following:-- ' S. 497--- West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Accused was granted bail in main case registered against him under S.392/34, P.P.C. And present case against him under S.13(d) of West Pakistan Arms Ordinance, 1965 was the offshoot of the said main case, which otherwise was not punishable for more than three years---When the bail was granted in the main case, as a rule, bail could not be withheld in the cases arising out of the same transaction of crime---State Counsel had conceded that withholding of bail in such case was exception and grant of bail was a rule---Accused was admitted to bail, in circumstances, MUHAMMAD DILSHAD v. State 2009 PCr.LJ 786 SINDH HIGH COURT. ' Jurisdiction is guarded jealously by Courts---Ouster or barring clauses of the legislations are to be strictly construed, CLIFTON AND DEFENCE TRADERS WELFARE ASSOCIATION v. PRESIDENT, CLIFTON CANTONMENT BOARD, KARACHI 2003 PLD 495 SINDH HIGH COURT. ' On the point of 'ouster', following may also provide some useful guileless:-- ' Ouster of jurisdiction is always through express words, and can never be implied. ADDITIONAL COLLECTOR-II SALES TAX, LAHORE v. Messrs ABDULLAH SUGAR MILLS LTD. 2003 SCM R 1026. ' S. 239---Charging accused jointly---Charges against accused were framed under separate three heads; i.e, causing murder; attempting to commit qatl-e-amd and causing injuries (Damiyah and Badiyah)---All accused persons had allegedly committed more than one offences in the same transaction ---Said accused persons could be tried and charged together and case of framing charge against accused would be covered under S.239, Cr.P.C. ABDUL REHMAN v. STATE 2011 PLD 192 PESHAWAR HIGH COURT. ' Section 239, Cr.P.C., may be examined hereunder:-- "239. What persons may be charged jointly. The following persons may be charged and tried together, namely: (a) persons accused of the same offence committed in the courses of the same transaction;
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(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence. (c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property, possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last named offence; (f) persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and (g) persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; ' and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges." ' Sir Abdul Rahim, BARRISTER-AT-LAW, HIS MAJESTY'S JUDGES OF THE HIGH COURT OF JUDICATURE AT MADRAS (in Chapter on IJTIHAD AND TAQLID, in his Book MUHMMADAN JURISPRUDENCE, p.180), has taken pains to go beyond simple question of jurisdiction, to wider questions of juristic differences, and finds that:-- "When a question depends upon juristic deduction a Qadi belonging to one School....May decide it according to the (other), if he prefers that view, or he may make over the case, to (other) Qadi for decision, if there is one available. In support of this a number of cases are mentioned. ..." ' He has also discussed some other questions of jurisdiction, including those of territorial and of law. The common thread runs through these cases that a Judge does not shirk, rather does assume jurisdiction, where essentially required of him, in the interest of justice and to lighten the burden of process of law and justice. ' The principles apparent in the above example and in the view are that all lawful effort be made so that interest of justice should not possibly fall short of its full measure, or falter to cause injustice, or cause avoidable or undue hardships to the people, due to legal technicalities, even those involving juristic variance. ' In the context of present case, the honourable High Court of Balochistan has appropriately, after due process of law, in the interest of justice, decided to "make over the case, to (relevant court) Qadi." 5. Now we take up Criminal Appeal No, 1/Q of 2011 filed by Salam alias Toor Jan, appellant against his conviction and sentence…
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