1. ' The appellant has called in question the impugned order, dated 8-7-2000 passed by the learned 1st Additional Sessions Judge, Ghotki, by filing the Criminal Acquittal Appeal No,32 of 2000.
2. ' Brief facts of the case are that one Mst. Rani wife of Muhammad Yasin Arain by Caste was facing trial alongwith five other co-accused in Sessions Case No,29 of 1999 titled as State v. Arif and others under sections 10, 11 and 16, Offence of Zina (Enforcement .Of Hudood) Ordinance, 1979, bearing Crime No,267 of 1999 registered with Police Station Ghotki.
3. ' The said Mst. Rani applied for grant of bail and the trial Court granted bail whereby the appellant namely Muhammad Sadiq stood as surety and release writ was issued to respondent No,1 who is the Superintendent Special Prison Women, Larkana and the release writ is said to be dishonoured by the respondent No,1 and she demanded Rs,1,000 as illegal gratification and the same was later on settled at Rs,500. The appellant in these circumstances approached the Circle Officer, Anti- Corruption Larkana, who registered the F.I.R. And trap was conducted and one Muhammad Saleh constable to respondent No,1 caught red-handed while respondent No,1 made escape good.
4. According to appellant, in spite of this the respondent No,1 did not release Mst. Rani whereby appellant submitted an application before the learned trial Court and the same was placed before the Link Judge who issued show-cause notice to respondent No,1 vide, dated 13-12-1999 and in this show-cause notice the respondent No,1 was directed to furnish reply on 14-12-1999 but she did not comply with and said Mst. Rani as accused was released after four days.
5. ' The appellant filed an application under sections 3/4 of the Contempt of Court Act on 28-12-1999 whereby the trial Court issued notice to respondent No,1 and she was directed to appear in person and explain the position and she appeared and filed objections.
6. ' In contempt proceedings, the contemner viz. Respondent No,1 submitted that the release order issued by the trial Court was received at her office on 10-12-1999 at 6-00 p.m. And as per Jail Rules the accused could not be released on that as the same was received after the working hours which were upto to 3-50 p.m. She further submitted that there were standing orders of the Government that before releasing any accused, the release order should be verified from the concerned Court and, therefore, in order to verify the release order she sent the same to the trial Court for verification but verification was not received and meanwhile the show-cause notice was issued to her, she further submitted that the prisoner (Mst. Rani) was released without any delay.
7. She further submitted that the delay in releasing the prisoner is not intentional, deliberate or due to disobedience by her and she further submitted that the delay was bona fide and only in order to get release order verified from the trial Court, therefore, the release was delayed. However, she tendered her unconditional apology before the trial Court if any inconvenience was caused.
8. ' After hearing the respondent No,1 (contemner) and in the light of her tendering unconditional apology the trial Court warned her to be careful in future in complying with the Court's orders. The trial Court further observed that the contemner has been attending the Court for the last so many dates and according to the trial Court, the sufficient punishment has been caused to her and no further action is warranted against the contemner and in these circumstances, the application was disposed of by order, dated 8-7-2000.
9. ' The appellant being aggrieved and dissatisfied with the order, dated 8-7-2000 preferred the Criminal Acquittal Appeal bearing No,32 of 2000, before this Court and after filing such criminal acquittal appeal before this Court, there was office objection as to how this criminal acquittal appeal is maintainable before this Court.
10. ' When asked as to how the criminal acquittal appeal is maintainable, as to how the present appellant Muhammad Siddique is aggrieved and as to how this Court has the jurisdiction in view of the Article 203-DD(1) of the Constitution Islamic Republic of Pakistan, 1973 as the proceedings were the off-shoot of offence under sections 10, 11 and 16 of Zina (Enforcement of Hudood) Ordinance, 1979, the learned Advocate for the appellant found himself on the horns of dilemma and half- heartedly submitted that the appellant is aggrieved person and the appeal is very much maintainable and this Court has the jurisdiction and cited section 439, Cr.P.C. Which is reproduced as under:-- (1).
(2) .........................................................................................................................
(3) .........................................................................................................................
(4) Nothing in this section shall be deemed to authorise a High Court:--
(a) to convert a finding of acquittal into one of conviction; or
(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A."
11. ' The learned counsel for the appellant did not cite any law to support the contention on the point of jurisdiction, maintainability and on the point that the contempt proceedings were between the respondent No,1 and the trial Court and in these circumstances, the learned counsel for the appellant continued to insist upon that the criminal acquittal appeal is very much maintainable and started rattling with his contention without any substantive law and in such situation, the learned counsel Mr. Mumtaz Ali Siddiqui, who was representing the State waived notice and since the question involved in the appeal, the question in the matter was ticklish and the question in the matter was involved that whether this acquittal appeal would lie before this Court or before the Honourable Shariat Court as the alleged contempt is committed in Zina case and the other point involved in the matter as to whether the appellant is aggrieved person and can file acquittal appeal under section 417(2-A), Cr.P.C., the Court sought assistance of Mr. S. Mushtaque Hussain and who also assisted the Court and submitted that the appellant is not aggrieved person by virtue of section 417(2-A), Cr.P.C., the proceedings under Contempt of Court was essential between the Court and contemner and the revision lies before the Honourable Federal Shariat Court and this criminal acquittal appeal is not maintainable.
12. ' Mr. S. Mushtaque Hussain Shah, Advocate has also invited my attention to a case Syed Ghulam Ali Shah v. Nazar Muhammad Shafi and another reported in 1978 PCr.LJ 759 in which it has been held that respondents, although show in carrying out orders yet delay not deliberate or intentional, or in circumstances have no contempt of Court committed but respondent guilty of laxity and negligence. The learned counsel Mr. S. Mushtaque Hussain Shah also invited my intention to West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission reported in PLD 1979 SC 912, in which it has been held that Contempt of Court matter of contempt--Essentially between Court and contemner--matter not one for any other Court, muchless an appellate Court or authority to direct such Court to proceed in matter or in case of acceptance of apology to reject it-Power to punish for contempt. To be exercised only by High Court whose contempt committed and not by any other Court.
13. ' In view of the above cited decision, it is crystal clear that the contempt proceedings were pending between the Court and the contemner (respondent No,1) and the appellant had no concern whatsoever with the said contempt proceedings and the trial Court also condoned the negligence committed by the respondent who tendered unconditional apology before the trial Court and in these circumstances, the appellant nowhere feels aggrieved as envisaged under section 417(2-A), Cr.P.C. Which is reproduced as under:-- "(2-A) A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may within thirty days, file an appeal against such order." ' and, therefore, the appellant is not aggrieved person.
14. ' On the other side, Mr. Mumtaz Ali learned counsel for the State also submitted that criminal acquittal appeal is not maintainable and the trial Court has dilated upon the each and every thing and the revision should have been filed by the said appellant before the Honourable Federal Shariat Court and not by the present appellant and he further supported the contention raised by Mr. S. Mushtaq Hussain Shah who was appointed as amicus curiea.
15. ' It will be pertinent to mention that Mst. Rani who was accused before the trial Court has also been acquitted by the trial Court and no appeal has been preferred against her acquittal by any person.
16. I have given very anxious thought on the submission made by the respective counsel for the parties and have gone through the decisions cited by the learned respective counsel, particularly Mr. S. Mushtaque Hussain Shah, Advocate who assisted this Court and the appellant is in no manner aggrieved, the proceedings were pending before the trial Court between the Court and the contemner (respondent No,1) and the impugned order, dated 8-7-2000 is very clear and the contemner has been pardoned by the trial Court with warning to be careful in future and thus, the present applicant has no locus standi in the matter. The appellant had the remedy if at all that was the revision which lies before the Honourable Federal Shariat Court. Since the alleged contempt is in Zina case which the appellant has not chosen the proper forum as envisaged in the Article 203- DD(1) of the Constitution of Islamic Republic of Pakistan which is very clear with regard to revisional and such jurisdiction of the Honourable Federal Shariat Court. The learned counsel for the appellant as far as law is concerned also remained gagged and did not submit the proper facts before this Court and only made submissions that this acquittal appeal is maintainable. The contention raised by Mr. S. Mushtaque Hussain Shah, Advocate and by Mr. Mumtaz Ali Siddiqui for the State carry weight and the law cited by the learned counsel S. Mushtaque Hussain is very much applicable in the present matter and the Article 203-DD(1) of the Constitution of Islamic Republic of Pakistan, 1973 is very clear in this respect as the alleged contempt is committed in Zina case and I am fully in agreement with the contentions raised by Mr. S. Mushtaque Hussain Shah, Advocate, who assisted the Court as amicus curiae and the contentions raised by Mr. Mumtaz Ali Siddiqui for the State.
17. ' Before parting with this judgment I must acknowledge thanks to Mr. S. Mushtaque Hussain Shah who rendered his valuable assistance to this Court in reaching the proper conclusion.
18. Consequently, criminal acquittal appeal has no merits and is dismissed. The aforesaid are the reasons of the short order, dated 18-10-2000.