1. ' JUSTICE NASIM HASAN SHAH, MEMBER.-This petition is directed against the judgment dated 20-7- 1982, passed by the Federal Shariat Court, Islamabad in Appeal No, 82-L of 1982.
2. ' The relevant facts are that the petitioner and respondent No, 2 were married some 11 years' ago, out of which wedlock three children were born. On 21-8-1980, when the petitioner returned from work he found respondent No, 2 absent from the house. He, therefore, started a search for her but could not trace her out. Being convinced that she had been enticed away by respondent No. 1 he reported the matter to the Ichhra Police Station on 18-9-1981 and the police registered a case against the respondents under sections 11 and 16 of the Offence of Zina (Enforcement of Hadood)
3. Ordinance (VII of 1979), hereinafter called the Ordinance.
4. ' On investigation, it was discovered that respondents Nos. 1 and 2 had taken a house at Kacha Ravi Road Lahore, which belonged to Abdul Rashid P. W. And had started living there together ; that on 21-1-1981, some months after respondent No, 2 had left the house, a female child was born to her.
5. ' Ultimately, on 22-9-1981, the accused also were arrested by the Police from Sanam Cinema, Lahore where they were seeing a movie together. The Police, thereafter, recorded the statements, under section 161, Cr. P. C. Of Abdul Rashid, landlord of the premises, in which the accused were residing, Farid Hasan-a tenant of Abdul Rashid and Tahir Butt-the cousin of Abdul Rashid. In addition thereto, the police took into possession a copy of the plaint in the suit for dissolution of marriage filed by respondent No, 2 against the petitioner.
6. ' The trial of the respondents commence on 8-3-1982 before the Additional Sessions Judge, Lahore, when, the statement of the petitioner was recorded. The other witnesses for the prosecution were thereafter to be examined. However, the petitioner discovered that the prosecution witnesses, namely, Tahir, Rashid and Farid Hussain had been won over by the respondents. He, accordingly, submitted an application to the trial Court that action should be taken against them. This application was handed over to the A. P. P., who made a statement before the Court giving up the said witnesses. The learned Additional Sessions Judge observing, that the statement of the petitioner herein did not disclose anything except that he had learnt that respondent No, 2 had eloped with respondent No. 1 and further that there being no material prosecution witness who could connect both the accused with the commission of the offence, came to the conclusion that there was no probability of the accused being convicted in this case proceed to acquit both of them by his order dated 9-3-1982 under section 265-K of the Cr. P. C.
7. ' Dissatisfied with the above order, the petitioner filed an appeal under section 20 of the Ordinance before the Federal Shariat Court. A Bench of the said learned Court, however, dismissed the appeal by its order dated 20-7-1982. Hence this petition for leave to appeal.
8. The first question, which arises, is with regard to the competency of this petition. The case in hand was a challan case and not a case instituted upon a complaint. The learned Additional Sessions Judge, having come to the conclusion that there was no probability of the accused being convicted, A had acquitted both of them under section 265-K of the Cr. P. C. According to section 20 of the Ordinance, the provisions of the Criminal Procedure Code apply mutatis mutandis in respect of a cases under the said Ordinance. Under section 417, Cr. P. C., which deals with the appeals in case of acquittal, it is provided in subsection (1) thereof that "the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court". In this case, no such direction was issued by the Provincial Government. It is true that under subsection (2) of section 417, Cr. P. C. The complainant can file an appeal, if the High Court (which in the context would mean the Federal Shariat Court) grants special leave to appeal, but this is possible only in those cases where the order of acquittal is passed in any case instituted upon a complaint, which is not the case here. The view expressed in Muhammad Hussain v. Muhammad Raman , that a complainant feeling aggrieved by an order of a Court of Sessions can file an appeal before the Federal Shariat Court under section 20 of the Ordinance is not correct as it has been taken by overlooking the provisions of section 20 of the Ordinance which makes the Criminal Procedure Code including obviously section 417 thereof apply mutatis mutandis in respect of cases under the Ordinance. Hence the appeal of the petitioner hereinbefore the Federal Shariat Court was incompetent.
9. ' However, it is possible to sustain the order of the Federal Shariat Court on the ground that on the date when it was passed viz. 20-7-1982, the Federal Shariat Court had been conferred provisional jurisdiction by the President's Order No, 5 of 1982 whereby Article 203-DD was substituted by a new provision wherein provisional jurisdiction was conferred upon it.
10. The exercise of the provisional jurisdiction being discretionary, the decision of the Federal Shariat Court not to interfere with the order of the Additional Sessions Judge supported as it is by some reasons, cannot be described to be an arbitrary or perverse exercise of its discretion. Hence the same is not liable to interference.
11. This petition, therefore, fails and is dismissed hereby. PLD 1982 FSC 111 1