SHAFIUR RAHMAN, J.--Leave to appeal was granted to the State in a criminal matter (appeal against acquittal) to examine the vires of rule 18(1)(A) of the Federal Shariat Court (Procedure)
Rules, 1981 framed under Article 203-J of the Constitution in so afar as it has been held to override and control section 417 of the Code of Criminal Procedure read with Article 157 of the Limitation Act, 1908.
2. Zahid Hussain, the respondent, was tried by the Additional Sessions Judge, Faisalabad, under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and under section 302, P.P.C. In a case registered vide F.I.R. No, 220 dated 23rd of July, 1985 Police Station, Jaranwala. He was acquitted by the trial Court by judgment dated 15th of November, 1986. Against his acquittal, the State preferred an appeal under section 20 of the Ordinance to the Federal Shariat Court. The Memorandum of Appeal is dated 11th of March, 1987.
Rule 18(1)(A) of the Federal Shariat Court (Procedure) Rules, provides a period of limitation of sixty days for filing appeals (including an appeal against acquittal). The State claimed the benefit of Article 157 of the Limitation Act read with section 417 of the Code of Criminal Procedure, but the same was denied. Rule 18(1)(A) was held to be intra vires and applicable to the situation and to that extent having displaced the provision of Article 157 of the Limitation Act. The State's appeal against acquittal being barred as held earlier by the Federal Shariat Court in the case of State v.
Muhammad Akram (PLD 1985 FSC 416) was dismissed.
3. Mr. Nawaz Abbasi, the learned Assistant Advocate-General contended that section 20 of the Ordinance made applicable mutatis mutandis the provisions of Code of Criminal Procedure to the cases triable under the Ordinance. The departures or deviations from the express provisions of the Code of Criminal Procedure were all indicated and specified in section 20 of the Ordinance. As no modification or exception was made of section 417 of the Code of Criminal Procedure, the ordinary period of limitation prescribed under Article 157 of the Limitation Act was available to the State for filing an appeal against acquittal.
4. The learned Assistant Advocate-General contended further that Rule 18(1)(A) of the Federal Shariat Court Rules prescribing a period of sixty days for filing such apppeals was beyond the rule making power of the Federal Shariat Court being not covered by Articles 203-E and 203-J of the Constitution. According to the learned Assistant Advocate-General the law laid down by the Federal Shariat Court in this case and earlier in the case of State v. Muhammad Akram (PLD 1985 F SC 416) referred to, is not good law.
5. The Federal Shariat Court (Procedure) Rules, 1981 have been framed in exercise of the powers conferred by Article 203-J of the Constitution. Clause (a) of Rule 2 of the Federal Shariat Court Rules defines 'appeal' to "means an appeal from the order of any Court which the Court has jurisdiction to hear and decide". Rule 18 as originally framed was as hereunder;-- "18. Presentation of appeal.--('l) Every appeal shall be presented personally by the appellant himself, or by his counsel, if any, to the Registrar or any other officer authorised by the Chairman, at the prinicipal seat of the Court or the registry--office of the Province in which the offence is alleged to have been committed.
(2) Every appeal shall be accompanied by a certificate that a similar appeal was not instituted at the principal seat of the Court or at a branch registry.
(3) Where an appeal is not drawn up in the manner hereinbefore prescribed, it may be returned to the appellant or the counsel, if any, to bring it in conformity with the provisions of rule 17: ' Provided that an appeal received, by transfer from High Court or Court of Sessions or from an accused who is confined in jail and is not represented by a counsel, not being in conformity with rule 17 shall not be returned: ' Provided further that the Court may ask the appellant to supply additional copies of appeal, documents and such other information as it may deem necessary to bring it in conformity with the provisions of that rule.
(4) The Registrar or the Officer authorised under sub-rule (1) shall, on being satisfied that the appeal fulfil the requirements of these rules, cause it to be registered and, under the directions of the Chairman, inform the appellants and his counsel, if any, of the date on which the appeal shall be taken up by a Bench for preliminary hearing: ' Provided that the Bench may, without fixing an appeal for preliminary hearing, admit it for regular hearing."
6. The Federal Shariat Court expressed the difficulty with regard to period of limition in the case of Azmat Khan (PLD 1982 FSC 4) in the following words:-- "Section 20 of the Ordinance replaces the abovementioned two sections of the Code in that a trial is held by Sessions Judge or an Additional Sessions Judge in any offence under the Ordinance and the appeal is to be preferred to this Court against any sentence passed or order made by the said Judges under the Ordinance.Thus it would be clear that appeals of the nature of the present one are not preferred to this Court under the Code of Criminal Procedure but these are competent under special statutes, namely the Hudood Order and Ordinances. As Articles 154 and 155 of the Limitation Act govern only those appeals which are preferred under the Code of Criminal Procedure these cannot place a bar of limitation against the appeal under the Ordinance. The Ordinance does not contain a residuary Article of the nature of the Articles 120 and 181, on appeals.
The Federal Shariat Court (Procedure) Rules, 1981 also do not lay down any period of limitation for filing of an appeal to the Court. As such there does not exist at present any statutory period of limitation for an appeal under section 20 of the Ordinance or for the matter of that for an appeal to this Court under any of the Hud000d Laws. The Supreme Court of Pakistan for the exercise of its Constitutional Appellate jurisdiction has provided a period of limitation of 30 days for filing appeals in that Court by Rule 1 of Order XVII of the Supreme Court of Pakistan Rules, 1980. As the position emerging from the above discussion can only lead to chaos, it would be highly desirable that a period of limitation for filing of such appeals as these should be prescribed either by way of insertion of statutory provisions in the Hudood Laws or by way of framing Statutory Rules on the subject. Till then we would prefer to take guidance from Article 155 of Limitation Act as these appeals are from the decisions and orders of the Sessions Judges against which ordinarily a period of 60 days is provided for appeals under the Code from such orders. This appeal is therefore, held not barred by limitation."
7. On 2842-1981 the Federal Shariat Court (Procedure) Rules, 1981 were amended and clause (A) in sub-rule (1) of Rules 18 was added in the following words:-- "An appeal shall he presented to the Court within sixty days from the date of the order or decision appealed from."
8. Article 157 of the Limitation Act indeed provides a period of limitation of six months for filing an appeal against acquittal, but that was so where no period of limitation, different from that prescribed by the Limitation Act, has been provided by any Special Law or Local Law. Subsection
(2) of section 29 of the Limitation Act provides that: "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expresssly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply."
' Section 3 of the Limitation Act referred to in the abovequoted subsection (2) provides as hereunder:-- "3. Dismissal of suit, etc. Instituted etc. After period of limitation.--Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed although limitation has not been set up as a defence."
9. These provisions of the Limitation Act make it clear that where a Special Law or a local law provides a period of limitation different from that of the Limitation Act then the period so prescribed prevails over that of the Limitation Act. In case of conflict on the express words, the Limitation Act yields. If there is any inconsistency, as there appears to be, then the Rules framed by the Federal Shariat Court will prevail provided they are found to be intra vires.
10. The rules under examination have been framed in exercise of the powers possessed under Article 203-J of the Constitution. The relevant portion of the Constitutional provisions reads as hereunder:-- "The Court may, by notification in the official Gazette, make rules for carrying out the purposes of this Chapter."
' Clause (2) of Article 203-E empowers the Court in the following words:-- "The Court shall have power to conduct its proceedings and regulate its procedure in all respects as it deems fit."
11. The word "proceeding" has been given a very wide meaning as would appear from the definition provided in Black's Law Dictionary in the following words:-- "In a general sense, the form and manner of conducting juridicial business before a Court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like Term "proceeding" may refer not only to a complete remedy but also to a mere procedural step that is part of a larger action or special proceeding."
' The word 'procedure' has also been defined in the same Dictionary in the following words:-- "The mode of proceeding by which a legal right is enforced, as distinguished from the substantive law which gives or defines the right, and which, by means of the proceeding, the Court is to administer; the machinery as distinguished from its product. That which regulates the formal steps in an action or other judicial proceeding a form manner and order of conducting suits or prosecutions. The judicial process for enforcing rights and duties recognized by substantive law and for justly administering redress for infraction of them."
12. Giving the formal extensive meaning to the words 'proceeding' and `procedure' in Article 203-E coupled with the expression "in all respects" would clearly give the impression of authorising the Court to determine the period of limitation as well. This would not have been the situation if the field had not been left vacant as noticed by the Federal Shariat Court itself in the Azmat Khan's case and a superior legal instrument prescribing a period of limitation existed. The argument of the learned Assistant Advocate-General that the Criminal Procedure Code governed the matter, is not a complete answer to the question raised in this appeal because the Code of Criminal Procedure does not itself provide any period of limitation even where the other relevant provisions are applicable. Limitation does not come into existence and in the face of the rules framed by the Federal Shariat Court, the general law of limitation stands displaced and excluded. On this view of the matter we find that the Federal Shariat Court has taken a correct view of the legal position with regard to appeals against acquittal in the impugned judgment and in State v. Muhammad Akram (PLD 1985 F SC 416).
13. The appeal has, therefore, no merit and is dismissed. The bail bonds shall stand discharged against the respondent.