' GUL MUHAMMAD KHAN, C.J.---This Constitutional revision petition, filed by Mst. Mansooba complainant, under Article 203-DD of the Constitution, calls in question, the order, dated 21st of February, 1989, passed by a learned Single Judge of the Sindh High Court, whereby he set aside the order, dated 24th of February, 1987, passed by the learned Sessions Judge West Karachi, in Criminal Appeal No,13 of 1986.
2. Briefly, facts giving rise to this petition are that Mst. Mansooba, petitioner lodged a complaint with the Police Station, Pak Colony, Karachi at 8-25 p.m., on the 22nd of March, 1983 alleging that her son Raheem Gul, aged six years, had been subjected to sodomy by Habibullah respondent No,2. The police registered the case under section 377, P.P.C. And section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but challaned the accused to face trial under section 377, P.P.C. The learned Magistrate, as it appears from the order of the High Court, sent the case to the Court of Session. The Additional Sessions Judge, however, returned the case to the Court of Magistrate for trial, as the offence under section 377, P.P.C., could be tried by him also.
3. The case came up for trial before the X(S) Additional City Magistrate, who is also the Juvenile Court as constitued under section 8 of the Sindh Children Act, 1955. The trial Court framed charge under section 377, P.P.C. The accused pleaded not guilty. The prosecution produced six witnesses while the accused produced three D.Ws. The trial Court vide order, dated 30th of October, 1986 held that the offence of sodomy was proved, no enmity was established and so convicted the accused.
He, however, ordered his detention in the Remand Home for a period of one month, keeping in view the long period of 3-1/2 years the trial took. This order was passed as a Juvenile Court.
4. The complainant, feeling aggrieved took, an appeal before the Sessions Judge West Karachi, (Criminal Appeal No,13 of 1986) under section 94 of the Sindh Juvenile Court Act and sections 435 and 439-A, Cr.P.C., who on the 24th of February, 1987, allowed the same, set aside the order and directed the Magistrate to send the case up for trial under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The relevant observations in para.12 of the order are as under:-- "For the reasons stated above I am of the view that the trial Court ought to have sent up the case, to the Court of Session under section 12 of the Ordinance rather than under section 377, P.P.C.
Because the case was not sent up under the Ordinance, the learned Additional Sessions Judge, Hudood, did not apply his mind to the facts of the case and returned the case to the Magistrate.
The trial Court should have gone through statement of victim under section 161, Cr.P.C. Which clearly shows that the minor was taken from lawful guardianship without her consent for sexual intercourse against the order of nature which amounted to kidnapping as already explained. This should have been done even at the time of trial when statement of victim indicated kidnapping envisaged by section 11 of the Ordinance."
5. The respondent No,2, challenged the order of the learned Sessions Judge before the High Court under section 561-A read with section 439, Cr.P.C. A learned Single Judge of the High Court allowed the petition with the following observations:-- "In view of the above factual as well as legal position, it is clear that once the applicant was tried under section 377, P.P.C. Before the Juvenile Court and was sent to the Remand Home at the conclusion of the trial, he cannot be retried for the same offence although under different statute, I am, therefore, of the considered view that the learned Sessions Judge has erred in ordering retrial for the same charge, and therefore, the same is hereby set aside."
It is this order which is being challenged before this Court.
6. To begin with, the learned counsel objected to the jurisdiction of this Court and stated that it should not interfere under Article 203-DD of the Constitution. The precise objection was that as the case in question did not pertain to law relating to the enforcement of Hudood, this Court could not call for the record of the High Court and cannot exercise the Constitutional jurisdiction as conferred thereunder. The contention has no merit. It is an undisputed fact that the age of the victim boy is six years and he, therefore, cannot give consent to being touched, assaulted, apprehended or taken away. He remains always in the custody of his guardian and anybody touching him, taking away or assaulting him would do so at his peril. The allegations were that he was apprehended and subjected to carnal intercourse forcibly. Thus, prima facie, the case may fall under section 12 of the Ordinance VII of 1979 and that being the undisturbed view of the learned Sessions Judge this Court has the jurisdiction under Article 203-DD of the Constitutuion.
7. The learned counsel was, therefore, asked to answer the question; was-not the learned Sessions Judge empowered to interfere in appeal or revision with the order of the trial Court and could he not after holding the trial as illegal, issue direction which he did but he had no reply to support his plea? As stated above the learned Sessions Judge was of the view that it was a case under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and therefore, undoubtedly it was triable exclusively by the Court of Session. The High Court had, in that event, firstly, no jurisdiction to decide this question and the matter should have been brought only before this Court, in view of Article 203-G of the Constitution. Secondly, the learned Judge of the High Court did not meet or refute the above argument of the learned Sessions Judge.
8. The other point decided by the learned Sessions Judge was that the Ordinance VII of 1979 superseded the Sindh Juvenile Court Act (Sindh Children Act) but the learned Judge of the High Court did not go even into that question to say that the Sindh Children Act, 1955 overrides the Ordinance VII of 1979. Therefore, the order of the High Court amounts to avoiding the trial of the case under Hudood Laws and the same being in respect of the law relating to the enforcement or otherwise of the Hudood Laws, this Court can call for the record. It may be noted that under section 6 of the Cr.P.C. High Court is a criminal Court, it was so acting and as it was persuaded to exercise jurisdiction under sections 561-A and 439, Cr.P.C., this Court could act under Article 203-DD of the Constitution to call for and look into its record to see legality, propriety etc. Of the order passed by it.
9. The learned counsel then submitted that the learned Sessions Judge had no jurisdiction to issue a direction to the trial Court to add section 12 of the Offence of Zina (Enforcment of Hudood)
Ordinance, 1979 and send the case up for trial to the Court of Session. Undoubtedly, the learned Sessions Judge could take cognizance of the case after he decided that it was triable by the Court of Session. However, the procedure requires that it should be sent up to him for the purpose by the Magistrate. But as an appellate or revisional Court he is entitled to issue all such directions which are necessary for dispensation of justice. He, therefore, could issue all incidental orders after holding the view he did. The learned counsel relied on AIR 1951 All. 714 for a contrary view but the rule laid therein is rather against the plea raised by the learned counsel. In that case the High Court held that the Sessions Judge, having once passed an order not to act, under section 347, Cr.P.C., was not empowered to do so later, even on the advice of the High Court, as it would amount to reviewing his previous order in violation of section 369, Cr.P.C.
10. It is argued by the learned counsel for the petitioner that there was no review involved in this case. It is true that the learned Additional Sessions Judge, who was entrusted with this case for trial in the beginning, had returned it to the Court of Magistrate for trial, without recording any evidence, as the challan had been sent only under section 377, P.P.C. According to him the learned Additional Sessions Judge passed no judicial order as he did not apply his mind to the facts on the record before him but mechanically acted on the report made to him under section 173, 'Cr.P.C., in this respect. It was thus not a judicial order and such an order would not bind him or his successor if the case came after trial.
11. However, the Magistrate, after recording the evidence, had material before him to find that the case pertained to an offence under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and that he neither had the jurisdiction nor was he in a position to pass an order thereon to inflict punishment in accordance with the law. He was thus duty bound to send the case up under section 347, Cr.P.C. He did none of the two things and it is admitted by the learned counsel for the respondent and also the State that remedy in such a situation before a proper Court would not have been barred. This omission was, therefore, revisable by the learned Judge in revision and he could consider it in appeal also.
12. There is also nothing on the record to show if the trial Court was ordered to proceed under the Sindh Children Act. Further, the order of the trial Court was, in any case, appealable under section 94 of the Sindh Children Act, 1955. Even the revisional powers of the Sessions Judge were invoked and they would be attracted under section 435/439-A, Cr.P.C. In that case if the learned Sessions Judge found that the trial Court acted beyond his jurisdiction it was its duty, in the interest of justice, to pass an order as he did and, therefore, no objection can be taken in respect of the same.
13. As said above, the learned Single Judge of the High Court did not go into any legal aspects dealt with by the Sessions Judge. He found that as the respondent No,2 had already undergone the sentence imposed by the trial Court it would be a case of double jeopardy and retrial was unlawful.
In fact this is the only question in the case and the learned counsel for the appellant, in order to support the order of the High Court argued that the order of the learned Sessions Judge would have amounted to double jeopardy, which was in violation of sections 234 and 403, Cr.P.C. And Article 13 of the Constitution. The facts of this case, however, do not give rise to such a plea as the two offences are distinct. We may refer here to the case of Kunju Iyer AIR 1946 Mad. 496 where it was held as under:--- "It is hence stated that this is a case in which he should have been convicted by reason of the provisions of section 237, Criminal Procedure Code, and therefore, the acquittal in this case would be a bar to a further trial in respect of an offence under section 420, Penal Code. What was done in this case was that instead of the appellate Court itself finding him guilty under section 237, it wanted to give an opportunity to the petitioner to have a fresh trial after framing a fresh charge and let in evidence and that was within the powers of the Court. What has been done was the exercise of the powers under section 237 with this addition, namely that certain privileges were sought to be given to the accused by ordering a fresh charge to be framed and a fresh trial. The appellate Court as a Court of error found that the first Court had committed a mistake in convicting the petitioner of an offence punishable under section 409 and at the same time exercised the powers which the first Court could have exercised if it had itself noticed the error and acted. I hence do not think this is a case of a fresh prosecution or a fresh trial. When the error was noticed by the Court, it corrected the error and exercised the same powers as the first Court could have exercised if it had noticed the error."
14. This plea even otherwise, is misconceived. We may refer here to observations of the Supreme Court in Muhammad Noor alias Norak v. Member, Board of Revenue Balochistan and others PLD 1985 SC 335 (340):-- "Under the provision of section 403, Cr.P.C. a person who has once been tried by a competent Court for an offence and convicted or acquitted of such offence, shall while such conviction or acquittal remains in force not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237, P.P.C."
(underlining supplied).
' We may here mark the words underlined above which mean that the conviction or acquittal must have remained intact and not upset under the appeal or revision powers.
15. In this case the order of the learned Sessions Judge had been passed in appeal/revision and so was in the same line of litigation. A somewhat similar case is reported as Baijnath v. Emperor AIR 1932 All. 409 where the following observations may be noted:- "For the accused it has been contended that he has been 'acquitted' of the charge under section 363, I.P.C. That is not so. The Judge set aside the order of the Magistrate and that he had to do before he could order a commitment but he did not 'acquit'. Even had he used the word, we should have been prepared to hold that it was merely an error and did not in law amount to an 'acquittal'.
' The result is that we hold that the order of the learned Sessions Judge should be set aside and it is set aside. The case will be restored as an appeal pending in the Sessions Court for disposal in the ordinary course."
16. The plea raised by the learned counsel for the respondent even on the face of it has no substance in it for, mere undergoing the sentence would not oust the jurisdiction of the appellate and the revisional jurisdiction. For example if an accused is convicted and sentenced to imprisonment till the rising of the Court, then according to the plea raised, neither the State nor the complainant would be able to challenge it in appeal or revision because sentence is already undergone. The correct position, however, is that the order of the nature cannot be allowed immunity from the operation of law of appeal and revision and no authority is needed to support it, except the clear letter of the law. Thus, even the suo motu revisional jurisdiction of the High Court or if it is a Hudood case, of the Federal Shariat Court, cannot be ousted.
17. The legal position that section 403, Cr.P.C. And Article 13 of the Constitution come into play only if one proceeding had concluded and the second has been started stands well-established. The case of Hadi Bux PLD 1970 Kar. 737 referred by the learned counsel rather supports the above view.
In Hadi Bux case the High Court, in the first round after noting the omission of the State to file an appeal, closed that chapter and decided the appeal of the convict by rejecting it. The State then filed an appeal which was considered as asking for a review of the previous order or .Asking for a second trial which were not permissible in law. The order of the High Court was maintained in that context by the Supreme Court in the case reported as State v. Hadi Bakhsh 1981 SCMR 1008. The following portion of the judgment at page 1012 may be reproduced:--- "In the first place, this would mean that the High Court would be reviewing its own judgment. And, that is barred by section 369 of the Criminal Procedure Code unless of course this section is subject to section 430 of the Criminal Procedure Code. Secondly, it would be most anomalous if the same High Court gave two different verdicts for the same offence. That would be an abuse of the process of the Court which would shake confidence in the administration of justice, and I would be loath to place upon section 430 of the Criminal Procedure Code a construction that could lead to such anomalous consequences."
' Reference may also be made to a recently decided case of this Court The State v. Anwar Khattak PLD 1990 FSC 62 wherein the scope and import of section 403, Cr.P.C. And Article 13 of the Constitution have been discussed in the same way as above.
18. The situation in the present case is in line with the established view. In this case, the complainant had challenged the order of conviction in the available jurisdiction of the appellate Court. It was, therefore, in continuation of the same proceedings and not a different proceedings. Further, the Appellate Court or the Revisional Court have the jurisdiction, in every case, considered appropriate by the Appellate Court or Revisional Court, to set aside the order and remand the case for retrial.
Nobody from such a situation can say that it is a case of retrial or double jeopardy. The order passed by the learned Sessions Judge is, therefore, not a specie of that type and no objection can be taken on that score.
19. We may further state that the learned Sessions Judge had expressly observed that Article 12 is applicable to the facts and circumstances of the case. This position has neither been denied nor controverted or upset by the High Court. Undoubtedly, the Sessions Court has the exclusive jurisdiction in such cases under the Hudood Laws. The trial of the case by the Magistrate was thus not lawful. The learned Sessions Judge, therefore, could interfere under section 439-A, Cr.P.C. And once he held that the trial should take place under section 12 of the Ordinance VII of 1979, the High Court could not interfere unless it first set aside that finding of the Sessions Judge. It may also be noted that the Ordinance VII of 1979 overrides all other laws. Further, in view of the Article 203-G of the Constitution the High Court had no jurisdiction to intervene in such cases. This Article reads as under:-- "Section 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."
20. In fact, particularly all the High Courts are of the view that their jurisdiction in such a situation stands ousted. Reference be made to Liaqat Ali etc. v. The State PLD 1989 Kar. 481 and Muhammad Ilyas v. The State 1986 P Cr. L J 344, Muhammad Hanif and others 1986 P Cr. L .1 746, Zafar Iqbal v. The State 1986 P Cr. L J 891, Faiz Muhammad v. The State 1986 P Cr. L J 1222, Zafar Khan v. The,State 1985 P Cr. L J 2611. Article 203-GG of the Constitution, may also be kept in mind, providing that the decision of the Federal Shariat Court shall be binding on a High Court and the Courts subordinate to it.
21. For all what has been stated above we are of the view that the order of the High Court is not maintainable under the law as also under the Constitution and the same is, therefore, set aside.
The next question arising is whether we should maintain the order of the learned Sessions Judge in the circumstances of this case.
' The complaint of this case was lodged on 22-3-1983. The age of the victim then was six years and of the accused 13/15 years. This case took three years to get decided from the trial Court and four more years have gone by. We think that all this torture is sufficient to the accused and we would not like to add to the agony and shame of the parties further. We, therefore, would not like to pass any further order of retrial in the case. This petition shall stand disposed of accordingly.