' This appeal by an ex-husband against his conviction on a Qazf case, arises out of unfortunate circumstances, in which the marriage between the spouses could not endure and, in the process, son born to the ex-wife is faced with the grim prospect of being stigmatized as illegitimate.
2. Relevant background of the multiple litigation between the parties given rise to this appeal may be narrated thus; admittedly the parties were married on 8-5-1997. Appellant's version in this appeal is that consummation did not take place as he, to his utter consternation, found respondent No,2 to be pregnant in the nuptial night and he felt so revolted that the was turned out of his house there and then. On the contrary, respondent's plea is that she lived as wife with the appellant for some time and conceived as a consequence of their marital relations and thereafter she was expelled by the appellant. It is, however, not disputed, rather it is common ground between the parties, that a son Adnan was born to the respondent after six months and few days of the marriage. The marriage was formally dissolved by the appellant through a divorce deed dated 31- 7-1998.
3. Respondent No,2 filed a suit for maintenance for the child against the appellant before Judge, Family Court on which the appellant submitted his reply/written statement alleging that respondent No,2 had been divorced and 'the child Adnan was illegitimate and he did not own him.
Incidentally, it may be mentioned that the maintenance suit was decreed on 5-11-2001 and appeal against it was dismissed on 6-1-2002. This led respondent No,2 to file a complaint under sections 3 and 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 before Additional Sessions Judge, Attock. In this complaint she had arrayed five other persons, besides the appellant, as accused. The trial Court, after recording preliminary evidence, summoned the appellant alone, as accused. The complaint qua the co-accused was dismissed. This is vide order, dated 3-12-1998.
4. Charge was framed against the appellant under sections 3 and 7 of the Ordinance on 13-5-2000.
The appellant pleaded not guilty and claimed trial.
' However, before further proceedings could take place, it was brought to the notice of learned trial Judge that a civil suit seeking a declaration that the child was not legitimate issue born out of the wedlock between the parties, filed by the appellant, was pending before Civil Court at Haripur. On being made cognizant of this fact, the learned Additional Sessions Judge proceeded to pass order on 12-10-2000, adjourning the proceedings of the complaint case sine die, so as to await the decision of the said civil suit. The order is reproduced in extenso, as under:-- "Presence as before.
' The copies of different documents are placed on case filed by accused which includes judgment, dated 11-9-2000 Mark 'F' by the learned Sessions Judge, Haripur, showing that a case of similar nature is dismissed there. A copy of plaint Mark `G/1' showing that a suit for declaration regarding legitimacy of minor Adnan is sub judice between parties before Civil Court, Haripur. The next copies are pertaining to two suits for damages Mark `H' and Mark H/1' which are also pending at Haripur, before concerned parties. Another copy Mark T is also filed regarding a family appeal which is statedly accepted and case remanded to Family Court, Attock for payment of maintenance. The present case is private complaint under sections 3 and 7 of Qazf Ordinance, 1979. The matter originally involves the question of legitimacy of minor between the parties which in the first instance requires adjudication on civil side and after its determination the alleged charge of Qazf or otherwise can be proved in present Hudood case.
Hence in these circumstances in the interest of justice the proceedings are adjourned sine die.
After final decision on civil side regarding legitimacy the parties will be at liberty to move this Court to initiate the proceedings in this case and thereafter proceedings will take accordingly. At this stage the case file is consigned to the record room after its completion.
' Announced 12-10-2000 (Sd.) Additional Sessions Judge, Attock."
' Learned counsel for the appellant has made a statement at the bar that the said suit is still pending. This statement has gone unrebutted, during arguments.
5. Notwithstanding the pendency of the suit, referred to in the preceding para. Respondent appeared to be very keen for early prosecution of the appellant in the complaint case under Qazf Ordinance. With a view to get rid of the order, dated 12-10-2000, adjourning her complaint case sine die, she filed writ petition before Lahore High Court, Rawalpindi Bench (Writ Petition No,2928 of 2000), assailing the said order. It was listed for hearing on 10-10-2001 and following order was passed:-- "10-10-2001 Qari Abdul Rashid, Advocate.
' On reconsideration learned counsel seeks to withdraw this petition. However, he prays that the trial Court may be directed to conclude the trial expeditiously.
(2) The trial Court concerned is directed to conclude the trial within one month.
(3) The petition stands disposed of accordingly.
(Sd.) Judge."
6. It is pursuant to the above order of High Court that learned Additional Sessions Judge, Attock resuscitated the file of the complaint case from the record room and commenced proceedings thereon. After recording evidence he proceeded to pronounce the impugned judgment, dated 12- 7-2002, holding the appellant to be guilty of offence under section 11 of the Ordinance and sentenced him to two years' R.I. With a fine of Rs,20,000 in default of payment whereof, to further undergo three months' S.I. Hence this appeal.
7. Elaborate arguments in support of the appeal and against it were addressed at the bar and I have carefully gone through the record with the assistance of learned counsel for the parties.
8. I find that this appeal merits acceptance, both on jurisdictional as well as legal planes.
9. In my view, writ petition was not at all maintainable in law.
' Article 199 of the Constitution is couched in the following language:-- ' Article 199 (1) Subject to the Constitution, a High Court, may, if it is satisfied that no other adequate remedy is provided by law,--
(a) .........................................................................................
(b) .........................................................................................
(c) ......................................................... (under lining is mine.
' Power of judicial review, conferred on the High Court under Article 199 is thus subject to the provisions of-the Constitution.
10. Chapter 3-A about creation of Federal Shariat Court and its powers etc. Was added in the Constitution by the Constitution (Amendment) Order, 1980.
' Article 203-A reads as under:--- "203-A. The provision of this Chapter shall have effect notwithstanding anything contained in the Constitution."
11. The scope and extent of this newly created Constitutional jurisdiction was examined by Supreme Court of Pakistan in Ahmed v. Abdul Aziz PLD 1989 SC 771 at 791 and it was laid down thus:-- "The jurisdiction conferred by Chapter 3-A of Part VII of the Constitution transcends the other provisions of the Constitution Article 203-A reads as hereunder:--- ' The provision of this Chapter shall have effect notwithstanding anything contained in the Constitution'.
' The supremacy and the pre-eminence of the provisions of Chapter 3-A of part VII has been placed by this Article beyond any doubt. It is, therefore, not possible on any reasoning to subordinate the provisions of this Chapter to another provision of the Constitution, viz. Article 2-A."
12. Initially, powers jurisdiction and functions of the Federal Shariat Court were confined vide Article 203-D to the examination of laws, detailed therein, both Federal as well as Provincial, on the touchstone of Holy Qur'an and Sunnah and declaration of any law or provision of law as repugnant to the Injunctions of Islam, with the consequential effects, flowing therefrom, as enumerated by this Article.
' It is with effect from March, 22, 1982, that vide Constitution (Second Amendment) Order, 1982 (P.O.
No,5 of 1982) Article 203-DD was added to the Constitution, thereby enlarging the jurisdiction of Federal Shariat Court. It reads as under:-- "Article 203-DD. (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 under any law."
13. Thereafter, in cases falling under Hudood Law, revisional jurisdiction to examine correctness, legality or propriety of orders passed by Sessions Judge or Additional Sessions Judge, stood exclusively conferred on Federal Shariat Court and revisional or inherent jurisdiction of High Court in such matters was taken away in Iqbal Hussain v. The State PLD 1985 Lah. 65 at 67. It was held:-- "It has been argued on behalf of the petitioner that despite appellate and revisional jurisdiction having been conferred on Federal Shariat Court, the High Court can still exercise its revisional as well as inherent jurisdiction under sections 439/561-A, Cr.P.C. In respect of cases under Hudood Ordinance tried/being tried by Sessions Judges/Additional Sessions Judges as they are Courts subordinate to the High Court and also because the Legislature has not expressly ousted High Court's inherent jurisdiction in such matters. Further argued that revisional jurisdiction conferred on Federal Shariat Court under Article 203-DD talks for the 'case decided' only and a case which has not been finally adjudicated is not covered by Article 203-DD, meaning thereby that an order passed during pendency of such a case cannot be challenged by way of revision before Federal Shariat Court and the remedy for the aggrieved party in a pending case lies before the High Court.
It may be noted that term 'case decided' is nowhere defined in criminal law. It is by now well- settled that the term 'case' does not necessarily mean the 'whole case' and this term is wide enough to include decision on any substantial question even though the same is of interlocutory nature as distinguished from purely formal and incidental order.
' By creating a separate hierarchy of Shariat Courts and conferring revisional jurisdiction on Federal Shariat Court the Legislature has made its intention clear that reversional power in Hudood cases shall be exercised only by the Federal Shariat Court. Again, the words 'case decided' use in Article 203-DD cannot be taken in isolation.
' No substance is found in the argument of the learned counsel for the petitioner that the revisional jurisdiction conferred on Federal Shariat Court talks only of 'case decided' and a case which has not yet been finally adjudicated upon is not covered by Article 203-DD. Such an intention in the absence of expressed terms cannot be imputed to the Legislature. It would lead to anomalous situation if revision in the 'case decided' under Hudood Laws would lie to the Federal Shariat Court while against the orders passed during the pendency of such cases it would be maintainable before another forum. The words 'as to the regularity of any proceedings' occurring in Article 203- DD also include the 'pending case'. In this view of the matter, the legality and correctness of the orders passed in such proceedings can also be competently examined and revised by the Federal Shariat Court."
14. The only remedy available to an aggrieved person against the decision/judgment of Federal Shariat Court in a Hudood case was to approach Supreme Court of Pakistan by way of appeal or petition for leave to appeal under Article 203-F(2-A) or Article 203-F(2-B), as the case may be, and such other jurisdiction that might be conferred upon Federal Shariat Court by or under any law vide Article 203-DD(3).
15. Thus, it is manifestly clear that in Hudood cases exclusive jurisdiction, appellate as well as revisional, vests in Federal Shariat Court as mentioned above, exercise whereof can be assailed only before Supreme Court of Pakistan either under Article 203-F(2-A) or Article 203-F(2-B), as the case may be.
16. The matter becomes clear and bereft of any ambiguity, if one peruses Article 203-G which ousts the jurisdiction of all other Courts or Tribunal except Supreme Court of Pakistan to interfere with the judgment or decision of Federal Shariat Court in exercise of its powers under Chapter 3-A of the Constitution. It reads as under:- "203-G. Subject to Articles 203-D and 203-F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court."
17. By taking into consideration the cumulative effect of above provisions of the Constitution no doubt is left that High Court stands denuded of powers to exercise writ jurisdiction under Article 199 in respect of any matter falling within the jurisdiction of Federal Shariat Court.
18. At this stage, one may refer with advantage to almost similar result emerging from the introduction of Article 212 in the Constitution whereunder the appropriate Legislature (Central and Provincial) was empowered to establish administrative Courts or Tribunal to exercise exclusive jurisdiction in respect of service matters of any person in the service of Pakistan. Significantly, this provision also contains the non-abstante clause as available in Article 203-A, referred to above about the creation of Federal Shariat Court. Article 212 reads as under:-- "212. (1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-
19. It is a matter of record that despite insertion of Article 212 in the Constitution, writ petitions were continued to be filed in large numbers by civil servants for redressal of their grievances and in many cases High Courts interfered in the impugned orders/actions and granted relief. Supreme Court of Pakistan, time and again, reversed these judgments and authoritatively laid down that in service matters writ jurisdiction could not be invoked and only remedy for the aggrieved person was to have recourse to the Service Tribunal constituted by the relevant Legislature. One may refer to the illustrated case of Syed Mazhar Hussain Bokhari v. The Secretary, Government of Punjab, Local Government and Rural Development Department, Lahore and others 1998 SCMR 1948, where the law was laid down by the apex Court thus:-- "We find no infirmity in the impugned orders in both the appeals. Even those orders challenged on the ground of mala fide, are appealable before the Service Tribunal and Article 212 of the Constitution is a bar against filing of a Constitutional petition before the High Court under Article 199 of the Constitution. In a recent decision passed on 27-5-1998 dismissing Civil Petition No,727/L of 1998 (Khalid Mahmood Wattoo v. Government of Punjab), this Court (A Bench of 3 Judges) examined this question in some detail and referred to a number of judgments of this Court and also of the High Court and dismissed the petition filed by petitioner Khalid Mahmood Wattoo on the ground that it was a bar, under Article 212 of the Constitution. It was reiterate as follows:- ' The consistent view of this Court has been that a writ petition or Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of the provisions contained in Article 212 of the Constitution'.
' It was further held in the said decision that even in cases where the order is bar is mala fide, the bar of Article 212 of the Constitution is attracted."
' Also see (i) Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 at 553; (ii)
Khalid Mehmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 at 2286, (iii) Sajjad Ahmed Javed Bhatti v. Secretary, Establishment Division 1999 SCMR 2186 at 2188 and (iv) Pervaiz Alam v. Ilyas Hussain Shah 1995 SCMR 784 at 785 and 786.
20. On the same principle of application of non-obstante clause, in Article 203-A (supra), High Court had no jurisdiction to entertain writ petition by the respondent lady in Qazf Ordinance case, qua the order of the trial Court about stay of its proceedings so as to await the decision of civil suit.
The order, dated 10-10-2001 passed in Writ Petition No,2928 of 2000 saying so with report to High Court, was without jurisdiction and hence not binding on the trial Court, seized of the Qazf case.
21. In my considered view the adjudication of this declaratory suit, in the first instance, was eminently called for, before the decision of the present complaint case. Otherwise the impugned judgment would have the effect of pre-empting the decision of the said suit, whose fate would stand practically sealed for all intents and purpose. Law does not postulate the prejudging of civil suit in criminal proceedings, between the same parties, as in that event jurisdictional foundations of Civil Courts would be irreparably shaken.
22. It is not for this Court or, for that matter, the learned trial Judge, who decided the complaint case, giving rise to the present appeal, to pre-empt the judgment of Civil Court, which being Court of plenary jurisdiction under section 9 of C.P.C. Was exclusively competent to finally adjudicate upon the declaratory suit pending before it. It goes without saying that while doing so it shall have to decide all questions, inter alia, touching the extent and scope of its jurisdiction and also take into consideration, the decree of maintenance suit etc. Which might be tendered in evidence alongwith other documentary or oral testimony, to be brought on record by the parties.
23. The conduct of the contesting respondent was also not above board. Perusal of order of High Court shows that the counsel for the respondent writ petitioner prayed for its withdrawal, meaning thereby that he did not seek any relief whatsoever in the said petition. It was, therefore, wholly unfair, and I may say so illegal, to thereafter ask for direction to the trial Court, seized of the Qazf complaint case, to decide it expeditiously. Assuming for arguments sake that the writ petition was competent in law, it being directed against the order for stay of proceedings of the complaint case, the question of asking for its final decision, after making a request for withdrawal thereof was not only contradiction in terms, but violative of the settled principle that what is not permissible to be done directly cannot be allowed to be done indirectly. In the light of request for withdrawal of the writ petition, no further order, saying so with respect for High Court, was, in any case, called for which should have been dismissed as withdrawn. The total relief, which the writ petitioner could have been granted, in the event of its success, was allowed, and thus the impugned order of stay of proceedings of complaint case was set at naught with a further direction to the trial Court to conclude the trial of the complaint case within a month.
' It goes without saying that a suitor cannot be allowed to approbate and reprobate at the same time. This aspect of the matter also escaped the notice of the High Court with the result that the parties have been forced to approach this Court, litigating with each other in this appeal.
24. The question now left for determination is whether the proceedings conducted by trial Court after 10-10-2001 be allowed to remain on record or be struck down.
' The trial Judge was legally competent to decide the Qazf case. He, however, stayed it to await the decision of the civil suit. The parties, in the absence of adjudication of the suit, were forced to lead evidence, keeping in view their respective pleas in the Qazf case. The possibility cannot be excluded that had the civil suit been decided earlier, the nature and extent of evidence to be led by them would have been different.
' It would be, therefore, not only legal but also fair and just that while setting aside the impugned judgment the proceedings conducted after order of the High Court dated 10-10-2001 are also struck down. This would be in consonance with the principle of law that if the basic order is held to be void the superstructure built thereon automatically falls down. Besides, this course of action would certainly save one or the other party from any prejudice.
25. Resultantly, the parties shall stand reverted to the position of the case as it existed on 12-10- 2000. All the proceedings taking in the complaint case, thereafter, are held to be nullity in law. The parties shall have to await the decision of the declaratory suit filed by the appellant, whereafter fresh proceedings, from the stage of the case as on 12-10-2000, would be taken by the learned trial Judge.
' The appeal is allowed in the above terms and disposed of. The appellant is on bail. His sureties shall stand discharged.