The petitioner alongwith others stands charged under Article 6 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for enticing away Mst. Shama Mai, were of Muhammad Hanif.
2. According to the petitioner, she was not married to Muhammad Hanif and the Nikahnama, dated 2-10-1982 was false and fabricated. It is contended that Mst. Shama Mai being an unmarried woman of age had voluntarily married the petitioner on 28-11-1982 and she had herself testified the factum of her Nikah with the petitioner and had also submitted an application to the said effect before the Ilaqa Magistrate on 30-1-1983. Her specimen thumb-impressions were obtained in the presence of the Ilaqa Magistrate who forwarded the same alongwith Parat Nikah produced by the Secretary, Union Council, Jalla Jeem to the Finger Print Bureau for comparison. According to him a report was received that the thumb-impression of Mst. Shama Mai did not correspond with the thumb-impressions appearing on the Nikahnama. The D.S.P. Had carried out the investigation and opined that in the circumstances the Nikah of Mst. Shama Mai with the petitioner had been validly performed. The D.S.P. Further opined that she had voluntarily appeared before the Ilaqa Magistrate and submitted application confirming her Nikah with the petitioner. The challan was presented in the Court of Ilaqa Magistrate who sent it to the Court of learned Sessions Judge under section 190 subsection (3), Cr.P.C. In the meantime, Mst. Shama Mai came under the influence of her father who got a suit for jactitation of marriage filed from her against the petitioner. The petitioner also filed a suit for restitution of conjugal rights. The petitioner moved an application before the trial Court for postponing the hearing of the case till the decision of the suit by the Family Courts. The learned trial Court did not pass any order on the said application and instead directed that it should come up alongwith the main case at the time of examination of Mst. Shama Mai. The petitioner moved an application on 10-7-1984 for summoning the original application of Mst.
Shama Mai, dated 30-1-1983 moved by her before the Ilaqa Magistrate alongwith various orders passed thereon from time to time. The said application was dismissed by the learned Additional Sessions Judge on 10-7-1984. Hence this revision.
2. The learned A.A.-G. Has raised a preliminary objection with regard to the maintainability of the revision in this Court. He states that revision is competent only before the Federal Shariat Court. He has referred to President's Order No. V of 1982. Constitution (second amendment) Order, 1982, published in Extraordinary Gazette of Pakistan, Part, I, dated 25th March, 1982 conferring revisional jurisdiction on the Federal Shariat Court. Article 203-DD may be reproduced below for facility of reference:- "203-DD. Revisional 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 authorise 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 revisional jurisdiction on the Federal Shariat Court to examine ---the correctness, legality or propriety" of the orders passed by the trial Court in cases under the Hudood Ordinance. So the Federal Shariat Court, now enjoys both appellants as well as revisional powers in ail the Hudood cases tried by Sessions Judges/ Additional Sessions Judges.
4. It has been argued on behalf of the petitioner that despite appellate and revisional jurisdiction having been conferred on Federal Shariat Court, the High Court can still exercise its revisional 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 Judge/ Additional Sessions Judges as they are Courts subordinate to the High Court and also because, the legislature has not expressly ousted High Court's inherent jurisdiction in such matters. Further argued that revisional jurisdiction conferred on Federal Shariat Court under Article 203-DD talks of the "case decided" only 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 the High Court.
It may be noted that term 'case decided' is nowhere defined in criminal law. It is by now well settled that the term 'case' does not necessarily g mean the "whole case" and this term is. Were enough to include decision on any substantial question even though the same is of interlocutory nature as distinguished from purely formal and incidental order.
5. By creating a separate hierarchy of Shariat Courts and conferring revisional jurisdiction on Federal Shariat Court the legislature has made its intention clear that revision power in Hudood cases shall be exercised only by the Federal Shariat Court. Again, the words 'case decided' A used in Article 203-DD cannot be taken in isolation. No substance is found in the argument of the learned counsel for the petitioner that the revisional jurisdiction conferred on Federal Shariat Court talks only of 'case decided' and a case which has not yet been finally adjudicated upon is not covered by Article 203-DD. Such an intention in the absence of expressed terms cannot be imputated to the Legislature. It would lead to anamolous situation if revision in the case decided' under Hudood Laws would lie to the Federal Shariat Court while against the orders passed during the pendency of such cases it would be maintainable before another forum. The words 'as to the regularity of any proceedings' occurring in Article 203-DD also include the 'pending case'. In this view of the matter, the legality and correctness of the orders passed in such proceedings can also be competently examined and revised by the Federal Shariat Court.