This is an application for bail with regard to an offence under section 1 I of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), (hereinafter called Zina Ordinance), in a case registered at Police Station, Chishtian on 24th February, 1980. The petitioner was granted bail on 27th April, 1980, by the A. D. C. (ii), Magistrate Section 30, Bahawalnagar. The learned Additional Sessions Judge, Bahawalnagar, however, cancelled it vide his order dated 11May, 1980.
2. According to the facts as alleged in the F 1. R., the petitioner Ghulam Ahmad developed illicit relations with Mst. Rafia Bibi, the daughter of Muhammad Ashraf, complainant. On coming to know of it the com--plainant forbade his daughter from going out of the house On 16th February, 1980, while the complainant and other members of the family were away, the petitioner seduced and abducted Mst. Rafia Bibi for an alleged purpose of marriage with her. A sum of Rs. 9,000 which was lying in the house was also said to have been taken away.
3. The learned Assistant Advocate-General who appeared for the State raised a preliminary objection that as the appellate jurisdiction had been conferred on the Federal Shariat Court, in view of the Offence of Zina (Enforcement of Hudood) (Amendment) Ordinance (XX of 1980), the power to grant bail would also be deemed to have been conferred only on that Court. He referred to sections 1(2) and 5(2) of the Code of Criminal Procedure and submitted that the jurisdiction to grant bail in such cases would be deemed to have been taken away in view of section 20 of the Zina Ordinance.
According to him, the Code of Criminal Procedure applied to Zina Ordinance by reference and not as a general law.
4. The learned counsel for the petitioner relied on the case of Zahoor Ilahi (PLD 1977 SC 273), where it was held that the High Court's jurisdiction to admit to bail under section 498, Cr. P. C. Is not oustedth either under section 13 of Ordi--nance XXX of 1971, rule 210 of the Defence of Pakistan Rules. The prosecution in that case bad relied on the clauses ".....Or have any jurisdiction of any kind in respect of proceedings of a special tribunal------" and "Notwithstanding the provisions of the Code or any other law for the time being in force------.". It was observed that the jurisdiction of the High Court existed unless and until it had been specifically taken away or curtailed by any special law in view of sections 1(2) and 5(2) of the Code of Criminal Procedure.
5. The Supreme Court in the above case further observed that sec--tion 498, Cr. P. C. Was not mentioned in section 15 of Ordinance XXX of 1971. Muhammad Gul, J. Held that the mere fact that in the event of the petitioner's conviction no appeal would lie to the 'High Court, is no impedi--ment for the exercise of the jurisdiction by the High Court under section 498, Cr. P. C. (page 361). His Lordship repelled the contention that the words "no Court shall have any authority---.." in section 13(1) of' Ordinance XXX of 1971, will curtail the jurisdiction of the High Court.
6. Undoubtedly, there is no express provision ousting the jurisdiction of the High Court under section 497/498, Cr. P. C. In the Zina Ordinance. Even the subsequent amendment, conferring power of trial on the Court of Sessions Judge and hearing of appeal it the Federal Shariat Court, did not say that Federal Shariat Court' shall be read for the 'High Court' wherever occur--ring in the Code. The amendment was confined to conferment of power of appeal and, therefore, its scope cannot be extended. In Benin Parveen Malik v. State (PLD 1977 Lah. 1017) a learned Single Judge of this Court held that if the intention of the Legislature had been that all orders passed under section 497, Cr. P.
C. Shall cease to have effect it would have so mentioned clearly in section 13(2xa) of the said Ordinance.
7. It is quite clear that the Code of Criminal Procedure applies mutatis mutandis in respect of the cases under the Zina Ordinance under section 20(i ), Express mention has also been made for any exclusion of the provisions that was intended. Section 20(3) of the Zina Ordinance excludes application of section 198, 199, 199-A or 199 of the Code to the cognizance of an offence punishable under section 15 or 16 of the Zina Ordinance. Similarly section 391 or 393 of the Code shall not apply in respect of the punishment of whipping awarded under the Zina Ordinance. Again, provisions of Chapter XXIX are not applicable in respect of punishment awarded under sections 5 and 6 of the Zina Ordinance while section 561 of the Code has been repealed. None of the other provisions have been omitted or modified.
8. In this view of the matter, I accept the contention of the learned Assistant Advocate-General that all the provisions of the Criminal Procedure Code are not applicable to the cases under the Zina Ordinance under sections 1(2) and 5(2) of the Code and that section 20 of the Zina Ordinance controls its applicability. However, I do not agree with him that the section 497/98, Cr. P. C. Or other relevant provisions shall be read so as to be referable to the Court of Sessions Judge or the Federal Shariat Court only, in the body of the Code. The Legislature never intended the same. Admittedly the jurisdiction was spread over within the hierarchy of the existing criminal Courts when Zina Ordinance was enforced at first. The only change brought about with regard to the forum was under Ordinance XX of 1980, referred to in para. 3 above. It did, to that extent, amend the Code under its section 1(4) so that it applied as provided in. Section 20 of the Zina Ordinance. The Legislature did neither touch section 497 or 498, Cr. P. C. Nor has it stated that the word 'High Court' wherever occurring in the Code of Criminal Procedure shall be read as 'Federal Shariat Court'. The provisions of sections 497498 shall, therefore, be read in the Zina Ordinance as they exist in the Code.
9. The case brings in the same result while looked at from another angle. The Court of Sessions Judge is subordinate to toe High Court. Under section 439, Cr. P. C. The High Court can call fur the record of any case before it to look into the legality or propriety of any order. This revisional power has not been conferred on the Federal Shariat Court, Had .The Legislature intended as is being canvassed, it would have either conferred the revisional power also or would have merely provided for the substitution of the words 'Federal Shariat Court' for that of the 'High Court, wherever in the Code they occurred. The result thus is that appellate power with the consequential power of suspension of sentence after conviction, if any, would vest in the Federal Shariat Court while the revisional power for any act earlier to that will be with the High Court.
10. There is another important practical aspect of the situation which might have prevailed on the Legislature in not depriving the High Court of this power. The Second Proviso to section 2 of the Ordinance XX of 1980 lays down that the trial under the Zina Ordinance, shall be held at the Tehsil Headquarters. It, therefore, does clearly show that it means to provide justice to the parties as near their homes as possible. Conferring jurisdiction of granting bail on the Federal Shariat Court, on the other hand, would have meant that the application for bail could be presented at such place in Pakistan where the Federal Shariat Court would be sitting at the relevant time. That would mean that an accused person from Ormara or Pasni would have to go to Islamabad or Peshawar or wait for such time that the Court comes to Quetta, the Provincial headquarters. Similarly a person from Swat should either rush for bail to Karachi or Quetta where the Federal Shariat Court may be sitting at the relevant time or let the accused lie in jail till the Court returns to a nearer place.
11. I am, therefore, quite satisfied to hold that the power of the High Court to grant bail in regard to offences under the Zina Ordinance is intact. Another learned Judge of this Court has taken the same view in Ahmad Ali v State (Criminal Miscellaneous 2731-B of 1980) and granted bail to an accused under the Zina Ordinance.
12. Coming back to this case, the abductee Mst. Rafia Bibi was found to be a minor according to her birth certificate. The learned Additional Sessions Judge did not err in ignoring the medical certificate produced by the petitioner. Consequently, his finding that the petitioner had prima fact committed an offence which attracted prohibition clause of section 497, Cr. P. C. Cannot be said to be illegal or unwarranted. The consent of the abductee to marriage or sexual intercourse will also be of no avail for the purpose of this application. The case may fall under sections 11 and 15 of the Zina Ordinance. Consequently, I do not find any justification to allow bail to the petitioner. This application is, therefore, rejected.