' Abuzar Ghafari had got registered an F.I.R. No.369 of 1999 against writ petitioner and others with Police Station City Khanewal on 12-9-1999 under Sections 10(2), 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979. The aforesaid F.I.R. Was quashed by an order dated 14-10-1999 passed by my learned brother Mr. Ali Nawaz Chowhan, J. In Writ Petition No.8745 of 1999 (Malka v. S.H.0). In the last concluding para. No.8 of the judgment the Investigating Officer was directed to proceed against the informant for levelling false allegation of Zina. In compliance of that order dated 14-10-1999 passed by this Court the Investigating Officer submitted "Qalandra" in the Court of learned Executive Magistrate City Khanewal. The aforesaid learned Executive Magistrate took the cognizance of the case and commenced the proceedings. Summoning A order of accused as well as the petitioner in the case was passed and the next date of hearing for appearance was fixed for 15-2-2000. Aggrieved from that order Sabir Ali, against whom the above- mentioned F.I.R. Was lodged, has filed the instant writ petition against the commencement of trial, by the aforesaid learned Executive Magistrate.
2. Writ petitioner's learned counsel submits that the learned Executive Magistrate was not empowered by any law and had no jurisdiction to take cognizance of the aforesaid case because of the prohibition contained in proviso to section 17 of the Officer of Qazi (Enforcement of Hadd)
Ordinance No.VIII of 1979. According to that section, an offence under Section 7 of the above- mentioned Ordinance is exclusively triable by the Court of Session and not by a Magistrate even if, he be vested with powers of Section 30 of the Cr.P.C.
3. In the presence of this section, learned Addl. A.G. Has not been able to defend the order of taking cognizance of the case by learned Executive Magistrate.
4. For the immediate perusal of proviso to section 17 of the Ordinance it is being reproduced as under:- "Provided further that an offence punishable under section 7 or subsection (4) of section 14 shall be triable by and proceedings under subsection (1) and (2) of the latter section shall be held before a Court of Session and not by or before a Magistrate authorized 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."
5. It may be noted with interest that Section 17 of the Offence of Qazf (Enforcement of Hadd)
Ordinance (VIII of 1979) has although applied the Code of Criminal Procedure 1898 (Act V of 1898) to the cases to be tried under the above noted Qazf Ordinance yet the proviso of the section has also provided different Court to conduct the proceedings of the cases under section 7 in clear words as against the normal and ordinary criminal cases to be tried by the Criminal Courts under the Criminal Procedure Code. So, the explicit words of the proviso to section 17 of the Qazf Ordinance above-noted has got the impact of creating a bar to the jurisdiction of learned Executive Magistrate in the instant case. Law is settled that proviso to section has overriding effect upon the substantive provision of the Section, as it being an exception to the main section and detracts something from the C main section which is provided by it. Citation in this regard may be referred to support the above-noted proposition:--
(i) 1998 SCMR 2381 (Mst. Nawab Bibi and others v. Ch. Allah Ditta and others).
(ii) PLD 1988 Lahore 501 (Syed Shabbar Raza, Rizvi Advocate v. The Government of the Punjab.
(iii)
The rule of interpretation that in case of plain language of a Statute, D there is no alternative but to give effect to it is also applicable to the instant case. Vide for that:-- ' PLD 2002 SC 439 (Karachi Metropolitan Corporation and others v. M/s Qarshi Industries (Pvt.) Ltd.
And another).
6. It would not be futile to mention the provisions of the Qazf Ordinance have got the overriding effect qua the other laws (vide section 19 of the above-noted Ordinance).
7. So from the cloudless provisions of the above-said Ordinance, 6 the cognizance taken of the case by learned Executive Magistrate is held to be illegal and unlawful.
8. Consequently, the writ is accepted and the learned Executive Magistrate is directed to forward send the case under section 190 (2) of the Criminal Procedure Code to the concerned learned Court of the Session. No order as to costs.