' Two quashment petitions, namely, Criminal Miscellaneous No, 47/Q/63 filed by Mulazim Hussain and Criminal Miscellaneous No, 80/Q/83 filed by Mst.Pathani, are being disposed of by this single judgment as a common question of law is involved in both of them.
2. Mulazim Hussain, petitioner in Criminal Misc. No, 47/Q/83, alongwith others was reported against for abducting Mst. Nasreen wife of Ahmad Bakhsh at Police Station, Leiah. The police after investigation recommended the case for cancellation. At this, Ahmed Bakhsh complainant filed a private complaint against Mulazim Hussain petitioner, Mst. Nasreen and Falak Sher who are being tried by Additional Sessions Judge, Leiah, under section 10/11/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter called the Ordinance, read with sections 468, 471, 420, P.P.C.
After the conclusion of the prosecution evidence, the petitioner moved the trial Court under section 265-K, Cr.P.C. praying that either he should be acquitted or in the alternative the proceedings against him be stayed till the decision of the suit for jactitation filed on 26-9-1982 by his co- accused Musammat Nasreen against Ahmed Bakhsh complainant, as tne judgment in the case would materially affect the decision of the criminal Court. Learned trial Court declined the prayer on 21-5-1983, hence this petition.
3. Mst. Pathani, petitioner in Criminal Misc. No, 80/Q/83 allegedly contracted marriage with Ghulam Hussain during subsistence of her Nikah with Allah Dad complainant. A case was registered against the petitioner and Ghulam Hussain both at Police Station, Leiah and after due investigation they were sent up for trial. Learned Additional Sessions Judge, Leiah, is trying them under section 10/16 of the Ordinance read with sections 467, 468, 420, P.P.C. In this case also after the prosecution closed its case Ghulam Hussain accused applied to the trial Court under section 265-K, Cr.P.C. praying that they be acquitted or in the alternative the proceedings be stayed till suit filed by the petitioner Mst. Pathani for declaration that she validly married Ghulam Hussain after having obtained divorce from Allah Dad (complainant) is decided by Family Judge. On 24-11-1983, this application was declined by the trial Court. Feeling aggrieved the petitioner has approached this Court for quashing the criminal proceedings pending against him.
4. During arguments a question arose as to whether this Court has jurisdiction to quash or stay the proceedings under Offence of Zina (Enforcement of Hudood) Ordinance, 1979, pending in the Court of Additional Sessions Judge in the exercise of its revisional jurisdiction (439 Cr.P.C.) or inherent jurisdiction (561-A Cr.P.C.).
5. All the offences under Offence of Zina (Enforcement of Hudood) Ordinance, 1979, have been made exclusively triable by Sessions Judge/ Additional Sessions Judges under section 20 of the said Ordinance and appeal against the final orders passed by the trial Court has been provided before Federal Shariat Court created under Article 203 of the Constitution of 1973. In the beginning Federal Shariat Court was not vested with revision jurisdiction. Later on, Article 203 DD of the Constitution substituted by President's Order No, V of 1982, Constitution (Second Amendment)
Order, 1982, published in Extraordinary Gazette of ,Pakistan, Part I, on 25th March, 1982, conferred provisional jurisdiction also on the said Court. The Article may be reproduced below for facility of reference: "203 DD.-- Revision and other jurisdiction of the Court.-- 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 be released on bail or on his own bond pending the examination of the record.
(2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: ' Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence.
(3) The Court shall have such other jurisdiction as may be conferred on it by or under any law."
A plain reading of the Article shows that it is an amalgam of the language used in sections 435 and 439 of the Cr.P.C. It appears that the above Article has been enacted with the purpose of conferring total revision jurisdiction on the Federal Shariat Court to examine "the correctness, legality or propriety" of the order passed by the trial Court in cases under the Hudood Ordinances. So the Federal Shariat Court, now enjoys both appellate as well as revisional powers in all the Hudood cases tried by Sessions Judges/Additional Sessions Judges.
6. It has been argued on behalf of the petitioner that despite appellate and revision jurisdiction having been conferred on Federal Shariat Court, the High Court can still exercise its revision as well as inherent jurisdiction under section 439/561-A, Cr.P.C. in respect of cases under Hudood Ordinance tried/being tried by Sessions Judges/ Additional Sessions Judges as they are Courts subordinate to the High Court and also because the legislature .has not expressly ousted High Court's jurisdiction in such matteRs, Further argued that revision jurisdiction conferred on Federal Shariat Court under Article 203 DD talks of only the "case decided" and a case which has not been finally adjudicated is not covered by Article 203 DD meaning thereby that an order passed during pendency of such a case cannot be challenged by way of revision before Federal Shariat Court and the remedy for the aggrieved party in a pending case lies before High Court. It may be noted that term 'case decided' is nowhere defined in criminal law. This phrase has been used in section 115, C.P.C. which too deals with the revisional jurisdiction. There is plethora of authorities on the civil side wherein the term "case" has been defined for more than one time. It is by now well-settled that the term 'case' does not necessarily mean the "whole suit" and this term is wide enough to include decision on any substantial question even though the same is of interlocutory nature as distinguished from purely formal and incidental order. Sections 249-A and 265-K, Cr.P.C., are analogous provisions and the orders passed under these provisions are revisable. By creating a separate hierarchy of Shariat Courts and conferring revisional jurisdiction on Federal Shariat Court makes the intention of legislature clear that revisional power in Hudood cases shall be exercised only by Federal Shariat Court. Again, words 'case decided' used in Article 203-DD cannot be taken in isolation but the article is to be read as whole to understand its true import. I find that the words as to the regularity of any proceedings of, occurring in the article include the "pending cases", therefore, legality and correctness of the orders passed in such proceedings can also be competently examined by the Federal Shariat Court. The inherent jurisdiction under section 561-A, Cr.P.C., is exercised generally where no remedy under other provision of law is available. Since the petitioners have a remedy against the impugned orders before the Federal Shariat Court by way of revision, therefore, I do not feel inclined to exercise extraordinary inherent jurisdiction of this Court in favour of the petitioners, for the additional reason that the cases have almost concluded before the trial Court.
7. Consequently, these petitions are hereby dismissed.