' JUSTICE JAVED IQBAL (CHAIRMAN).--- The above captioned appeals with leave of the Court have been directed against the order dated 13-11-2003 whereby the criminal miscellaneous applications preferred on behalf of respondent have been accepted.
2. The leave granting order in Criminal Shariat Appeal No,20 of 2004 is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- "Petitioners seek leave to appeal against the order, dated 13-1-2003 passed by the learned Federal Shariat Court whereby Criminal Miscellaneous Application No,96/1 of 2003 in Criminal Appeal No,49-1 of 2002 filed by respondent Mst. Naveeda Shaheen was allowed.
(2) Briefly stated the facts are that respondent Naveeda Shaheen tiled complaint under section 10(4), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as Ordinance) before Sessions Judge, Attock against petitioners Muhammad Asghar, Muhammad Shoaib, Haroon Ahmed and Shehla, respondent No,2 Akhtar Ali and accused Sajjad Ali. It was brought on record vide order dated 29-6-1999 except accused Sajjad Ali who was already exonerated in inquiry report. During the trial, respondent No,2 Akhtar Ali was acquitted under section 265-K, Cr.P.C. On the conclusion of trial, petitioners, namely, Muhammad Asghar, Muhammad Shoaib and Haroon Ahmed were acquitted from the charge under section 10(4) of the Ordinance but were convicted under section 354, P.P.C. And were sentenced each of them to suffer R.I. For one year with a fine of Rs,5,000 each or in default to suffer further one month's R.I. Each.
However, petitioner Shahla Firdous was acquitted from all charges. Against the said judgment, respondent Mst. Naveeda Shaheen filed Criminal Miscellaneous Application No,96/1 of 2003 before the learned Federal Shariat Court under subsection (2) of section 417, Cr.P.C. Read with Article 203- DD of the Constitution of Islamic Republic of Pakistan, 1973 and proviso 11 of section 20 of the Ordinance.
(3) Babar Awan, learned counsel for petitioners contended that the learned Federal Shariat Court has exceeded its jurisdiction by converting criminal petition for leave to appeal into, appeal against acquittal vide impugned order, dated 13-11-2003. According to him, the impugned order even otherwise is against law of natural justice as the same has been passed behind the back of the petitioners. He vehemently urged that as per proviso of Article 203DD(2) of the Constitution of Islamic Republic of Pakistan, 1973, the Federal Shariat Court is not competent to convert finding of acquittal into one of conviction and no order shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence.
' Even according to subsection (2) of section 417, Cr.P.C. In an order of acquittal passed in any complaint case, an application is to be made by complainant seeking grant of special leave to appeal.
(4) On the other side, Malik Rab Nawaz Noon, learned Senior Advocate Supreme Court for respondents controverted the above contentions and contended that the impugned order is well in accordance with law and merit no interference.
(5) Since the interpretation of important questions of law are involved in this case, as such, we grant leave to appeal to examine the same in detail."
3. The leave granting order in Criminal Shariat Appeal No,21 of 2004 is reproduced herein below for ready reference:-- "Since leave to appeal has already been granted to similar matter (Criminal Shariat Petition No,4 of 2004) on 22-10-2004, therefore, we are inclined to grant leave in this case also with the direction that both matters be fixed together for hearing."
4. Heard Dr. Babar Awan, learned Advocate Supreme Court on behalf of appellant in Criminal Shariat Appeal No,20 of 2004, Mr. Ibadur-Rehman Lodhi, learned Advocate Supreme Court for appellant in Criminal Shariat Appeal No,21 of 2004, Malik Rab Nawaz Noon, learned Advocate Supreme Court for respondent No,1 (Mst. Naveeda Shaheen), Ch. Munk Sadiq, learned Advocate Supreme Court for State, perused the order impugned and examined the entire record with the eminent assistance of above named learned counsel. It would be appropriate to reproduce the order of learned Federal Shariat Court for ready reference:-- "Criminal Miscellaneous No:97/I of 2003 ' The learned counsel for the applicant/appellant has contended that he under the bona fide belief that appeal was maintainable against the impugned judgment, had assailed the impugned judgment through appeal, which was admitted for regular hearing. However, subsequently, having found that it being a complaint case wherein leave to appeal was required to be sought by way of petition for special leave to appeal he as a precautionary measure, has filed the instant petition, seeking conversion of the appeal into the petition and grant of leave. He has prayed that since the appeal filed by him is within time, therefore, the same may be treated as petition for special leave to appeal and be allowed.
(2) Mr. Basharatullah Khan, Advocate, learned counsel for the respondents though not in attendance today, on the last date of hearing, while opposing the application had submitted that since the petition for special leave to appeal was filed at a belated stage, therefore, it may not be allowed. Reliance was placed on the case of Mst. Rafiqan v. Muhammad Riaz and another reported as 1986 SCM R 738.
(3) Since the appeal filed by the applicant is well within time and it has already been admitted, therefore, we are inclined to grant the relief claimed through the instant application which otherwise is purely of technical nature as justice always favor decision on merits. Consequently, the appeal is treated as a petition for leave to appeal and the same is allowed.
' Needless to point out that since in Mst. Rafiqan's case the P.S.L.A., as filed originally was barred by time, therefore, the leave order was recalled as such the principle laid down therein would have no application to the facts of the instant case because in the case in hand the appeal has been filed within the prescribed time and applicant has only sought its conversion into P.S.L.P.S.L.A.
' Criminal Miscellaneous No,97/I of 2003 ' In view of the order passed in Criminal Miscellaneous No,96/I of 2003, the application for condonation of delay has become infructuous, which is accordingly dismissed as having not been pressed."
5. A bare perusal of the above mentioned order would reveal that the appeals are pending before learned Federal Shariat Court and the order impugned is that of an interim nature which should have not been assailed before this Court. It is well-settled by now that entertainment of petition against interim order and hearing of case piecemeal is not desirable. In this regard we are fortified by the dictum laid down by this Court in case of Mushtaq Ahmad v. President, Special Military Court No,7, Karachi 1979 SCM R 282. It may not be out of place to mention here that pursuant to the provisions as contained in Article 203F(2-B) of the Constitution of Islamic Republic of Pakistan this petition is not competent as neither any decision was made nor order passed by the learned Federal Shariat Court but the appellants were just summoned which cannot be equated to that of an order which is yet to be passed by the learned Federal Shariat Court. We are not persuaded to agree with Dr. Babar Awan, learned Advocate Supreme Court that learned Federal Shariat Court had absolutely no jurisdiction in this regard for the simple reason that under section 203DD read with section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 such order could have been passed as it squarely falls within the jurisdictional domain of learned Federal Shariat Court. It is to be noted that "for the first time on 21-6-1980, that 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.
Since the Code of Criminal Procedure has been applied mutatis mutandis in respect of cases under the Ordinance, consequently as Court of appeal this Court can exercise all the powers of appeal given under the said Code (Chapter XXXI). It can examine question of law or question of fact or question of mixed law and fact. In other, words this Court is given unfettered powers of appeal to examine any aspect of the case whether relating to appreciation of facts or of law.
Section 20 of the Ordinance imposes no restriction whatsoever on the jurisdiction of this Court.
While exercising appellate jurisdiction, the Court can quash, confirm, vary or modify the conviction or sentence awarded by a Court of Session". It is time and again stressed by Dr. Babar Awan, learned Advocate Supreme Court that proper opportunity of hearing was not afforded to the appellant and more so the question of jurisdiction and limitation was never dilated upon before passing the order impugned. It is urged with vehemence that respondent after having served the sentence could not have been summoned by learned Federal Shariat Court.
6. Mr. Ibad-ur-Rehman Lodhi, learned Advocate Supreme Court has also argued on the similar line and contended that the respondents who were acquitted under section 265-K., Cr.P.C., which had already attained finality which aspect of the matter has been ignored by the learned Federal Shariat Court. Dr. Babar Awan, learned Advocate Supreme Court besides arguing on the above mentioned points also highlighted the merits of the case.
7. Ch. Munir Sadiq, learned Advocate Supreme Court entered appearance on behalf of State and vehemently controverted the view point as canvassed at bar by Dr. Babar Awan, learned Advocate Supreme Court and Mr. Ibad-ur-Rehman Lodhi, learned Advocate Supreme Court on the main ground that order impugned is ad interim order which should have not been assailed before this Court without any lawful justification which is lacking in this case.
8. We are deliberately avoiding our comments on merits of the case as this aspect of the controversy is to be decided by learned Federal Shariat Court as it fails within its jurisdictional domain. All the contentions as canvassed at bar today can very conveniently be agitated before the learned Federal Shariat Court. The appeals are dismissed and learned Federal Shariat Court is, however, directed to dispose of the appeal on behalf of respondents after affording proper opportunity of hearing to all concerned. The contentions which have been canvassed at bar and mentioned hereinabove may also be dilated upon and decided in accordance with law. Keeping in view the chequered history of the case it is desirable that the appeal be disposed of expeditiously.
The appeals are disposed of in above terms.