1. It has been argued that under the impugned order, dated 28-10-1991, the trial Court has directed deposit of Rs.25,000 and if such deposit is not made then Writ of attachment would be issued and hence there is urgency. Granted.
2. This application has been moved under section 561-A, Cr.P.C. Challenging an order dated 28-10- 1991 passed by the Second Additional Sessions Judge, Khairpur in Sessions Case No.258/87 where the accused arc facing trial for the offence punishable under section 20 of the Offences Against Properly (Enforcement of Hudood) Ordinance and under section 13-D of Arms Ordinance. In case the applicant-was aggrieved with the impugned order, dated 28-10-1991 he should have moved criminal revision application under section 439 of Cr.P.C. Learned counsel for the applicant conceded that had he moved revision application under section 435/439, Cr.P.C. Against said order, the same would have been filed in the Federal Shariat Court in view of Article 203-DD and 203-G of the Constitution of Pakistan. He argued that even in a case which is being tried for an offence under the Hudood Ordinance this Court can exercise its inherent jurisdiction under section 501-A of Cr.P.C. On this point learned counsel cited the cases of --
(i) Liaquat Ali etc. v. State etc. PLD 1989 Kar. 481;
(ii) Haji Muhammad Aslam Khan v. Muhammad Aslam and another 1990 SCMR 211.
2. In respect of the order being not in accordance with law learned counsel cited the case of Syed Yakub Shah v. State PLD 1978 Quetta 158.
3. In the case of Haji Muhammad Aslam 1990 SCMR 211 it was held that Article 203-DD of the Constitution deals with revisional powers o f the Federal Shariat Court in Hudood cases, but evidently does not bar the inherent jurisdiction of the High Court under section 561-A of Cr.P.C.
4. Pending against any one in a Court of criminal jurisdiction. In the cited case the criminal proceedings were quashed under section 561-A of Cr.P.C. In said case there was no question of quashment of an order. In the case of Liaquat Ali PLD 1989 Kar. 481 the view taken was that the ouster of jurisdiction contemplated by Article 203-G of the Constitution of Pakistan extends only to exercise of appellate or revisional power in Hudood cases, which is made to fall exclusively within the jurisdiction domain of Federal Shariat Court, to exclusion of exercise of appellate or revisional power enjoyed by the High Court under the Criminal Procedure Code and it does not extend to exercise of inherent jurisdiction by a High Court under section 561-A of Cr.P.C. It was also observed that since Federal Shariat Court was not invested with inherent jurisdiction under section 561-A of Cr.P.C. Hence jurisdiction of High Court to entertain quashment petition under section 561-A, Cr.P.C.
5. In Hudood cases was not excluded by Article 203-G. Here again it was the case of quashment of proceedings.
6. Present application appears to have been moved under section 561-A of Cr.P.C. But it is directed against an order which could be challenged before the proper forum under section 439 of Cr.P.C.
7. Since an application under section 439 of Cr.P.C. Could be filed only in the Federal Shariat Court, hence learned counsel has chosen to move present application under section 561-A of Cr.P.C. To achieve the result, which he could have achieved by moving an application under section 439 of Cr.P.C;. The provisions contained in section 561-A of Cr.P.C. Cannot he invoked to bring about a result in respect of which there is an express prohibition or express provision provided in the Code or in any other lax, as observed in the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599. In the same case it was held that power under section 561-A of the Criminal Procedure Code can only be invoked in extraordinary cases where no other procedure or remedy is available or is provided by Criminal Procedure Code.
8. In view of the `observations made, in the case of Allied Bank of Pakistan Ltd. Mentioned above, I hold that present petition which is in essence a revision application under section 439 of Cr.P.C. Is not maintainable in this Court for want of jurisdiction and is not maintainable even under section 561-A of Cr.P.C. And the same is, therefore, dismissed in limine.
2. This has become infructuous and the same stands dismissed.
9. N.H.Q./P-246/K