' MIAN BURHANUDDIN KHAN, J.-Leave is sought to appeal against the judgment and order of a learned Single Judge of the Peshawar High Court dated 2-7-1983 passed in Cr. Misc. No, 91 of 1983.
2. According to petitioner Mst. Bakhtina, she is legally wedded wife of one Abdullah, resident of Calandar Kas Dakhli Banna, Tehsil Batgram, District Mansehra. She was abducted from her husband's house on the night between 3/4-5-1981 by Gul Rahman accused and his companions.
' After her abduction she was taken to the house of Ahmad Khan wherefrom she was taken by Saltnat Khan to his house where she was subjected to illicit intercourse forcibly. Later on, she was taken to the house of accused/ respondent Asfandyar in Swat where again she was forced to submit to sexual intercourse. A report was lodged by Abdullah husband of the petitioner on 4-5- 1981 in Police Station Banna, Allai, District Mansehra. It is alleged that Saltnat Khan respondent passed on the abductee to Ayub and Ahmad Khan to dispose her off by selling her. The petitioner was brought to Mansehra where the police party met the accused who left the petitioner alone and decamped. The police took the petitioner into custody and got her statement recorded under section 164, Cr. P. C. On 14-2-1982. In her statement she implicated the first two accused/respondent. Giving facts mentioned above she also lodged, later on, a complaint against the two respondents and 4 other persons for the offence committed by them during the course of abduction.
3. After the investigation, the police did not challan the two accused/ respondents and put the petitioner as one of the accused in the case which was sent up for trial to the Court of Session.
During the proceedings of the Court of Sessions the Public Prosecutor found that the petitioner may be made a witness in the case as the prosecution entirely depended on her statement, and requested the Court accordingly. Accepting the request of the Public Prosecutor the learned Sessions Judge passed an order to the effect that the petitioner be made a witness and the two accused/respondents be arraigned as accused in the case. This order was challenged by way of Revision under section 439, Cr. P. C. And under section 561-A, Cr. P. C. On the ground that the order of the learned Sessions Judge was without jurisdiction and such not maintainable. The learned High Court Judge vide the impugned judgment struck down the order of the learned Sessions Judge dated 19-4-1983.
4. Learned counsel contended that in view of the allegation of Zina against the first two respondents and the case as such being exclusively triable by the Sessions Judge under the Hudood Ordinance the High Court was not competent to entertain the petition of the first two respondents and grant 'relief; that under the Hudood Ordinance it is only the learned Federal Shariat Court which can set aside the order of the learned Sessions Judge and the learned High Court is not vested with the jurisdiction to set aside the order of the Sessions Judge in its entirety.
5. We have heard the learned counsel for the petitioner and Mr. Khan Badshah learned Advocate for the respondent. Learned counsel in support of his argument referred to section 494, Cr. P. C.
Wherein the Public Prosecutor is vested with the power to withdraw from the prosecution, any accused with the permission of the Court and to produce the same person as a witness and that under Article 203-DD of the Constitution, as amended vide Constitution Amendment Order, 1981 (P.
0. 1 of 1980) which reads "(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 may be released on bail or on his own bond, pending the examination of record.
(2) In any case the record of which has been called for by the Court, may pass such order as it may deem fit and may enhance the sentence
(3) The Court shall have such other jurisdiction as may be conferred on it by or under any law.
6. The argument built by the learned counsel for the petitioner on the above provision of law is that only the Federal Shariat Court is vested with the power to interfere with the order of the learned trial Court i. e. The Sessions Judge and it is not within the jurisdictional competence of the High Court to interfere with said order ; that in any case a private complaint had been filed by the petitioner against the two respondents Saltnat Khan and Dr. Asfandyar under the Hudood Ordinance and the impugned order of the learned High Court Judge to stifle the prosecution in the police case would result in throwing out the petitioner's complaint as the impugned order would stand in the way of the trial Court to try the respondents. We grant leave to consider the arguments raised by the learned counsel.