2004 PLP 1462 (SCMR)

MIAN MUHAMMAD AJMAL, J.

This appeal by leave of the - Court calls in question the validity of the judgment of the Lahore High Court, Lahore, dated 5-10-1995 whereby ,Criminal Miscellaneous No.341-Q of 1995 of respondents Nos. 1 and 2 under section 561-A, Cr.P.C. was treated as writ petition and was allowed and proceedings against them in complaint filed by the appellant under section 7/11 of the Offence of Qazf. (Enforcement of Hadd) Ordinance, 1979 (hereinafter to be called the Ordinance), were quashed.

2. Brief facts are that in 1992 Dr. Munawar Hussain, the appellant was posted as Medical Officer in Tehsil Headquarters Hospital, Shahpur Saddar whereas respondents No. 1 and 2 were posted as Medical Superintendent and Assistant District Health Officer, Shahpur Saddar,' respectively. Allegedly a false case was registered against the appellant and Mst. Nasreen a lady Health Visitor of the same Hospital vide F.I.R. No. 105, dated 2-4-1992 under section 10(2) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein they were tried by the Additional Sessions Judge, Sargodha and acquitted, vide his judgment, dated 5-5-1993: After acquittal the appellant filed a private complaint under section 7/11 of the Ordinance read with sections 109/34, P.P.C. The trial Court after holding preliminary inquiry recommended issuance of process against Muhammad Ramzan and respondent No.2, who were summoned to face the trial. Dr. Muhammad Khan respondent No.1 was not summoned, as such, the appellant impugned the said order through revision petition before the Federal Shariat Court who vide its order, dated 11-5-1994 directed the trial Court to issue process against Dr. Muhammad .Khan respondent. No. 1 and decide his case. alongwith other respondents.

3. In compliance with the above order, the trial Court summoned respondent No. 1 and framed charges against all the three accused. Thereafter the respondents filed an application under section 265-K, Cr.P.C. before the trial Court which was dismissed vide its order, dated 3-8-1995. The respondents instead of challenging the said order before the Federal Shariat Court, moved the Lahore High Court under, section 561-A, Cr.P.C. through Criminal Miscellaneous No.341-Q. of 1995 for quashment of proceedings under section 7/11 of the Ordinance wherein notice was issued for 5-10-1995 and on the same day it was decided as Writ Petition in absence of the appellant. The quashment petition was treated as Writ Petition due to lack of jurisdiction of the High Court purportedly under Article 203-DD of, the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be called the Constitution) and on acceptance of the same the proceedings against respondent No. 1 and 2 in the complaint under section 7/11 of the Ordinance were declared to be without lawful authority and of no legal consequence and the proceedings qua respondents Nos. 1 and 2 under the Ordinance pending in the trial Court, were quashed.

4. Thereafter the appellant filed Criminal Miscellaneous No. 1180 of 1995 praying that ex parte order, dated 5-10-1995 be set aside which petition was dismissed on 10-10-1995 being not competent. The appellant then filed a Revision Petition No.93-L of 1995 before the Federal Shariat Court, against the order, dated 5-10-1995 of the High Court, which was withdrawn to avail the remedy before this Court and as such it was disposed of on 18-10-1995 as not pressed. The appellant thereafter filed petition for leave to Appeal.No.447-L of 1995 before this Court against the order, dated 5-10-1995 of the High Court, wherein leave was granted on 23-1-1996 as under:

"In support of this petition, the learned counsel for the petitioner has relied upon Article 203-G of the Constitution of Islamic Republic of Pakistan and it has been vehemently contended that there being bar of jurisdiction to be exercised by another Court, the High Court could not have passed the impugned order in exercise of its Constitutional jurisdiction vested in it under Article 199 of the Constitution of Islamic Republic of Pakistan. The crucial question arising in this case is correct interpretation of Article 203-G and Article 199 of the Constitution of Islamic Republic of Pakistan and to determine whether the proceedings failing within the exclusive jurisdiction of the Federal Shariat Court could be quashed by the High Court in exercise of it Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. This being an important question, therefore, we grant leave to appeal. The proceedings against Muhammad Ramzan are not stayed but the trial Court is directed not to pass a final order."

5. Learned counsel for the appellant contended that after the dismissal of the application of the respondents under section 265-K, Cr.P.C. they filed a petition under section 561-A, Cr.P.C. for quashment of the complaint titled Dr. Munawar Hussain v. Muhammad Ramzan and two others under section 7/11 of the Ordinance before the High Court which was converted into a writ petition by the learned Single Judge purportedly under Article 203-DD of the Constitution. The conversion of the petition under section 561-A, Cr.P.C. into a writ petition under Article 199 of the Constitution purportedly under Article 203-DD of the Constitution was illegal and without lawful authority as this Article confers revisional jurisdiction on the Federal Shariat Court and this Article does not empower the High Court to take cognizance of any matter in any manner, as such, the High Court had no jurisdiction under Article 203-DD to convert an application for quashment under section 561-A, Cr.P.C. into a writ petition under Article 199 of the Constitution. Article 203-A of the Constitution provides that the provisions of this Chapter i.e. Chapter 3-A relating to Federal Shariat Court shall have the effect notwithstanding anything contained in the Constitution meaning thereby that provisions of this Chapter containing Article 203-A to Article 203-J have overriding effect on the other provisions of the Constitution. Article 203-G of the Constitution imposes bar on the jurisdiction of the Courts and Tribunal; including the Supreme Court and the High Court to entertain any proceedings or exercise any power or jurisdiction in respect of the matters within the power or jurisdiction of the Federal Shariat Court, as such, the High Court neither had the jurisdiction under section 561-A, Cr.P.C. nor under Article 199 of the Constitution in the matter which fell within the jurisdiction of the Federal Shariat Court, as such, the jurisdiction exercised by the High Court under Article 199 of the Constitution after conversion of quashment petition, was coram non judice. It may be noted that the Federal Shariat Court had already directed the trial Court vide its judgment, dated 11-5-1994 passed in Criminal Revision No. 110-L of 1993 to issue process against Dr. Muhammad Khan respondent and to decide his case alongwith other, respondents in accordance with law. This iudgment which was rendered' by the three Honourable Judges of the Federal Shariat Court was binding, on the High Court and all other Courts subordinate to it under: Article 203-GG and a Single Judge in Chambers of the High Court had, no jurisdiction to sit in judgment over the judgment of the Federal Shariat Court which had exclusive jurisdiction in the matter and its, decision had a binding effect as stated earlier. Since the matter was exclusively amenable to the jurisdiction of the Federal Shariat Court under Article 203-G, therefore, the impugned judgment passed by the, Single Judge of the High Court was without lawful authority and of no: legal consequence. Consequently, this appeal is allowed, the impugned judgment of the 'learned Single Judge in Chambers of the High Court; being coram non judice is set aside and the trial Court is directed to proceed with the complaint as directed by the Federal Shariat Court vide its order, dated 11-5-1994 and decide the same in accordance with law as expeditiously as possible N.H.Q./M-115/S Appeal allowed