1. ' This is an application under section 561-A, Cr.P.C. For quashment of criminal proceedings in the case of State v. Liaquat Ali and 2 others under section 11/16, Zina Ordinance, 1979 in Crime No, 101 of 1988, Police Station Sujawal. The applicants are the three accused in the above case. It appears that upon the lodging of the F.I.R. By respondent No, 2 on 10-12-1988 at the Sujawal Police Station to the effect that the present applicants nad forcibly abducted his daughter Mst. Hanifan with intention to commit Zina with her on 8-12-1988 at 10 p.m. From the house of one Ali Nawaz Shaikh in Sujawal Town where the complainant was temporarily staying, the above case has been registered and is being tried by the Court of an Additional Sessions Judge, Thatta. The applicants have filed the above quashment proceedings on the plea that the above case is false and that the same has been initiated for ulterior motive as the complainant/respondent No, 2 wanted to break 'the engagement of Mst. Hanifan with applicant No, 1 Liaquat Ali. When the above case had come up for Katcha Peshi on 5-3-1989, the case was adjourned for hearing the arguments on the question, whether the quashment proceedings were also barred like revisional proceedings by virtue of Article 203-G of the Constitution. Notices were issued in addition to the learned Advocate-General, Mr. Abdul Hafiz Lakho to M/s. Khalid M. Ishaque and Azizullah K. Shaikh Advocates to appear as amicus curiae.
2. M/s. Khalid M. Ishaque and Azizullah K. Shaikh have submitted that the remedy provided under section 561-A, Cr.P.C., hereinafter referred to as the Code, is an extraordinary remedy and is not akin to a revisional proceeding and, therefore, the same is not barred by virtue of Articles 203-DD and 203-G of the Constitution. Mr. Nooruddin Sarki, Advocate who has appeared for the applicants adopted the arguments of the learned counsel appearing as amicus curiae.
2. ' Whereas Mr. Abdul Hafeez Lakho, learned Advocate-General has contended that the effect of Article 203-DD read with Article 203-0 is that the above quashment proceedings are not competent. He has further pointed out that on the above question the Hon'ble Supreme Court has granted leave and, therefore, the matter is pending before the Supreme Court.
3. ' Mr. Azizullah K. Shaikh has invited my attention to the well-settled principle relating to the construction of statutes namely, the exclusion of jurisdiction of superior Courts is not to be readily inferred and that there is a strong leaning against any such exclusion. In support of his above submission he has referred to the case of Muhammad Ismail and others. v. The State, PLD 1969 SC 241, the case of Ch. Zahur Ilahi, M.N.A. v. The State' PLD 1977 SC 273, the case of Lt.-Col. Muhammad Yusuf, Commissioner, Quetta Division v. S. Ali Nawaz Gardezi PLD 1962 (W.P.) Lah. 919, the case of Muhammad Gul and another v. The State 1985 P Cr. L J 205, the case of Gul Muhammad etc. v. The State 1987 P.Cr.LJ 737 and the case of Syed Zeeshan Akhtar Zaidi v. The State 1988 PCr.LJ 843.
4. ' In the first case the Hon'ble Supreme Court while construing para. 6 of the Provisional Constitution Order, held that its jurisdiction under. Article 58(3) of the late Constitution of Pakistan, 1.962 was not affected. It was also observed that Maxwell in his book on the. Interpretation of Statutes, 11th Edition at page 122 has pointed out that "so strong a leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the superior Courts that unless very explicit words are used in the statute itself in that behalf such an intention would not normally be imputed lo the Legislature," whereas in the second case while construing the provisions of Defence of Pakistan Ordinance and the Rules framed thereunder the learned four Judges of the Hon'ble Supreme Court have held that "it is also well-settled principle relating to construction of statutes that the exclusion of jurisdiction of superior Courts is not to be readily inferred, indeed there is a strong leaning against any such exclusion, whereas Muhammad Yaqub Ali the then Hon'ble Chief Justice took the contrary view.
5. ' In the third case, a Full Bench of three learned Judges of the erstwhile High Court of West Pakistan while construing section 2 of the Appellate Jurisdiction (High Courts and Supreme Court)
6. Ordinance, 1962 held that the appeal provided under section 411-A, Cr.P.C. Was not barred expressly or by necessary implication on the basis of the above well-settled principle of interpretation of statutes.
7. ' In the fourth case a Full Bench comprising of three learned Judges of the erstwhile High Court of West Pakistan at Lahore decided on 13-8-1979 though reported in 1985 while construing the provisions of section 3(6) & ('7) of the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) held that the High 'Court before recording of conviction by the Supreme Court enjoys the power to grant bail under section 497, Cr.P.C. Notwithstanding the wordings in the above provisions of the said Act.
8. ' In the fifth case a Division Bench of this Court while construing the above provisions of section 5(6) & (7) of the Suppression of Terrorist Activities (Special Courts) Act, held that the High Court could grant bail on the ground of delay to accused facing trial before the Special Court under section 4977498, whereas in the sixth case a Division Bench of this Court, to which I was a party, while construing the provisions of the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984) has held that the High Court being Appellate Authority had implied power to grant relief which, was ancillary or incidental to the appeal during the pendency of the appeal on the basis of maxim that the Court having power to grant final relief has the power to grant interlocutory relief, though not expressly provided for in the relevant statute. It was further held that the Court is not to lean in favour of ouster of jurisdiction in case of grant of bail or extending benefit to an accused person of certain beneficial provisions of the relevant law. However the object of the aforesaid Ordinance was also highlighted and it was observed that conviction order passed by the. Special Court cannot be suspended as a matter of course and that the said ease was not a fit case for grant of interim relief during the pendency of the appeal.
3. Before taking up the other case-law cited by the learned counsel for the parties, it may be advantageous to reproduce Articles 203-DD and 203-C of the Constitution which read as follows: "203-DD.-- (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 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.
9. 203-G. Save as provided in Article 203-F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court.
10. ' A perusal of clause (1) of above-quoted Article 203-DD indicates that the Court (which means Federal Shariat 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; whereas above" clause 203-G provides that subject to Article 203-F no Court or tribunal, including the Supreme Court and a High Court, shall entertain any. Proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court, i.e, the Federal Shariat Court. It may be observed that Article 203-F referred to in the above Article provided appeal to the Supreme Court against the final order of the Federal Shariat- Court.
4. Mr. Lakho has invited my attention to the case of Jaffer Khan and another v. The State (1985 P.Cr.L J 2611) and the case of Muhammad Ilyas v. The State (1986 P.Cr. L J 344). In the first case a Division Bench of the Baluchistan High Court, to, which I was a party, held that the effect of above Article 203-DD read with Articles 203-G and 203-F of the Constitution is that the revision petition in the High Court was not competent and the proper remedy for the petitioner was to approach the Federal Shariat Court. It was ordered that the revision petition may be returned to the petitioner for presentation 'to the proper Court.
11. ' Whereas in the second ease a learned Single judge of this Court while construing above, Articles 203-G and 203-DD also held that revision petition filed an the High Court was not competent.
12. ' There cannot be any cavil with the proposition that the High Court and even the Supreme Court will not have jurisdiction in respect of any matter within the power or, jurisdiction of the Federal Shariat Court except that the right of -appeal is provided to the Supreme Court under. Agticle 203- V but the above ouster of jurisdiction is pre-conditioned by the fact thst the Federal Shariat Court should have jurisdiction in respect of the matter Which is broug-ht before a High Court. 'As pointed, out hereinabove the Fedeal Shariat- Court has revisional jurisdiction under Article 203-DD and therefore, it must follow\that a High Court will not have revisional jurisdiction as, has been held in the above eases relied upon by, Mr. Lakho learned Advocate-General, but under the Constitution or under any 'other law the Federal Shariat 'Court has not been vested -with any jurisdiction like one which has been conferred- on the High Courts under section 561-A of the Code. It must therefore follow that the High Court's jurisdiction. Is not ousted in respect of ,section 561-A of the Code.
13. ' M/s. Khalid M. Ishaque and Azizullah K. -Shaikh have heavily relied upon the case of Mian Nunir Ahmad v. The State reported in 1985, SCMR 257 in which the,point in issue before the Hon'ble Supreme Court was whether the High Court could entertain proceedings under section 561-A in respect of a criminal, case, the cognizance'of which was taken by a Labour Court under the provisions of the Industrial Relations Ordinance, 1969. The Hon'ble Supreme. Court in that context observed as follows: ".A reading-of that judgment would, however, show that the case decided thereby related to the revisional powers of the High Court under section 435/439, Cr.P.C. And there is no mention therein of section 561-A, Cr.P.C. It would; benoticed that section.-435, Cr.P.C. Expressly provides that the.
14. High COurt can exercise its revisional jurisdiction only with respect to the proceedings pending before Criminal Courts, inferior to it, whereas section 561-A, Cr.P.C. Makes no mention of inferior or subordinate Courts and empowers the High Court to exercise its jurisdiction thereunder with respect to proceedings in any Court."
15. ' The above-quoted observations of the Hon'ble Supreme Court are of very wide import as they point out distinction between the revisional jurisdiction which the High Court exercises under section 435 of the Code in respect of proceedings pending in any Court inferior to it, whereas the language employed in section 561-A of the Code significantly omits the words "inferior or subordinate Courts" and in its place uses the words "proceedings in any Court" though not subordinate to the High Court.
16. ' Mr. Khalid Ishaq has further invited my attention to the following cases: (1), Fida Muhammad and 3 others v. The State Bank of Pakistan and another reported in 1982 P.Cr.L J 779, in which a Division Bench of this Court while construing section 23-A of the Foreign Exchange Regulation Act (VII of 1947) held that though under the above provision finality was attached to the order passed by the tribunal but the High Court still retains power of revision under section 435/439, Cr.P.C. And also under section 561-A, Cr.P.C.
(ii) Butani Papu Udharam v. The State reported in PLD 1980 Karachi 49, in which a learned Single Judge of this Court while construing sections 185-C and 185-B(d) of the Customs Act held that since the jurisdiction of the High Court under section 561-A, Cr.P.C. Has not been expressly barred by the Customs Act the above provision could be pressed into service by a party but before doing so he should exhaust the remedy under section 265-K, Cr.P.C. Before the Special Judge Customs.
(iii) Muhammad Haroon v. The State reported in 1980 P. Cr. L J 759. In the above case also a learned Single Judge of this Court held that despite the bar in section 185 (f) of the Customs Act, the High Court had still the power to entertain proceedings under section 561-A, Cr.P. C . For quashment of the proceedings pending before the Special Judge.
(iv) Mst. Sughran Mai v. The State, reported in PLD 1980 Lahore 386, in which a learned Single Judge of the Lahore High Court held that even a case triable under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 the High Court had jurisdiction to entertain proceedings under section 561-A, Cr.P.C. To prevent abuse of process of Court where challan submitted against accused contains no allegations or accusations which if allowed to go to trial are not even remotely likely to end up in' conviction.
17. ' Mr. Khalid M. Ishaque has also invited my 'attention to the case of Muhamamd Shafique and others v. Abdul Hayee and others reported in 1987 SCM R 1371, in which the party after exhausting revisional remedy before an Additional Sessions Judge filed an application under section 561-A, Cr.P.C. Which was entertained by the Lahore High Court and allowed. The Hon'ble Supreme Court granted leave to appeal on the following two questions: "(i) As to whether an application under section 561-A, Cr.P.C. Was competent after the exercise of revisional powers by the Sessions Judge under section 439-A, Cr.P.C. In regard to the same subject-matter as if it was an appellate power to correct errors in the order passed in the exercise of revisional jurisdiction, particularly when the concurrent powers of revision are conferred on the High Court and the Sessions. Judge; and
(ii) Do the orders passed in the proceedings conform to sections 145 and 146, Cr.P.C.?"
18. ' While dismissing the appeal the following observations were made in relation to the exercise of jurisdiction by the High Court under section 561-A of the Coder "The jurisdictional requirements for the exercise of powers under section 561-A. Cr.P.C. Are:-
(i) To give effect to any order under the Criminal Procedure Code.
(ii) To peevent abuse of process of any Court.
(iii) To secure the ends of justice such a power cannot be exercised against the express language of the statute and it only preserves what is possessed or is inherent in the Court itself. The revisional power certainly goes beyond in so far as the propriety as is distinguished from the mere legality can also be examined therein. The powers possessed by the Courts under section 435/439, Cr.P.C.
19. Do not impinge, curtail, or limit in any manner whatsoever the powers under section 561-A, Cr.P.C.
20. ' In the decisions referred to above by the learned counsel for the appellants where likelihood of defeating the legislative intent by invoking powers under section 561-A, Cr.P. C. In the garb of second revision are concerned if the jurisdictional requirements of an order under section 561-A, Cr.P. C. Are kept in view and fully observed there is neither the likelihood nor "would there be the appearance of defeating the legislative intent by invoking in appropriate cases the powers conferred by section 561-A, Cr.P.C."
21. ' Mr. Nooruddin Sarki has also relied upon the case of Muhamamd Samiullah Khan and another v.
22. The State reported in PLD 1963 Supreme Court 237, in which the Hon'ble Supreme Court while construing provisions of Sections 439 and 561-A of the Code, observed that the jurisdiction under section 561-A of the Code is of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available and that it is of a limited scope and cannot be utilised where there is other express remedy provided by the Code, whereas the revisional jurisdiction of the High Court under section 439 is indeed wide and is not confined merely to errors of law but it can be exercised even in appropriate cases to disturb findings of fact.
5. From the above-cited and discussed cases, it seems that the consensus of judicial view is that while construing statutes, the exclusion of jurisdiction of the superior Courts is not to be readily C inferred unless and until very explicit words are used in the relevant statute itself in that behalf manifesting a contrary intention, and that there is a strong leaning against such exclusion.
23. ' I am inclined to hold that since the Federal Shariat Court under Article 203-DD has been conferred revisional power, the High express exclusion provided in Article 203-G to the effect that no Court or any other Court cannot entertain a revision by virtue of Court or tribunal, including the Supreme Court and High Court shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of Federal Shariat Court but since the Federal Shariat Court has not been conferred the power akin to that which has been conferred on a High Court under section 561-A of the Code, the jurisdiction of the High Court to entertain a petition under section 561-A has not been excluded under above Article 203-G. However, the High Court cannot entertain a petition under section 561-A in respect of a proceeding pending under Hudood or Zina Ordinance before a competent Court unless it forms a view that it is necessary to prevent abuse of process of Court and that the challan submitted against the accused contained no allegations or accusations, which if are allowed to go to trial is not likely even remotely to end up the trial in conviction. Furthermore, a proceeding under section 561-A of the Code cannot be entertained after the recording of the conviction by the competent Court under the Hudood or Zina Ordinance as the remedy available to the party is before the Federal Shariat Court and before the Appellate Shariat Bench of the Hon'ble Supreme Court.
6. In view of the above conclusion, let the case be fixed for Katcha Peshi for examining whether it is a fit case for entertaining a proceeding under section 561-A of the Code.
24. ' Notice to the Advocate-General on the above point.
25. ' Before parting with the above discussion, I would like to place on record my gratitude for the valuable assistance rendered by M/s. Khalid M. Ishaq and Azizullah K. Shaikh by appearing as amicus curiae and Mr. Abdul Hafeez Lakho, the learned Advocate-General Sindh.