P L D 2022 Federal Shariat Court 73 (PLP)

MUHAMMAD NOOR MESKANZAI, C.J.

The petitioner has filed this petition under Article 203-D of the Islamic Republic of Pakistan and thereby has challenged the provision of section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979), on the ground that under Shariat punishment for Offence of Zina is 100 Stripes, therefore, the sentence of Rajm provided under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is contrary to the Injunctions of Islam, be declared as such.

2. It is pertinent to mention that earlier the petitioner filed Sh. Petition No. 01/I of 2021 before this Court wherein she challenged a couple of provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but when confronted with the Federal Shariat Court (Procedure) Rules, 1981, that in a petition only one law can be challenged, she withdrew the petition with permission to file a fresh one, hence, the present petition.

3. Legally, the question raised by the petitioner is a past and closed chapter as, it has, already been decided. In the year 1979 two Shariat Petitions i.e. Sh. Petition No. 59/L of 1979 titled as Hazoor Bakhsh v. Federation of Pakistan and Sh. Petition No. 62/L of 1979 titled as M.I. Chaudhry and another v. Islamic Republic of Pakistan were filed in this Court, whereby the provisions of sections 2(a), 2(b), 2(d), 2(e), 5, 6(2) 8, and 17 of the Ordinance, VII of 1979, were challenged and this Court by a Bench consisting upon five Hon'ble Members vide its judgment dated 21.03.1981 by a majority of four to one declared the provisions of sentence of Rajm under sections 5 and 6 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, repugnant to the Injunctions of Islam by holding that the sentence provided for the offence of Hadd is only 100 Stripes and directed for necessary amendments in the law. Operative portion of judgment is reproduced:- "In view of the above discussion, I am clear in my mind that the previsions of 'Rajm' as laid down under sections 5 and 6(2) in the Ordinance are not repugnant to the injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Prophet Muhammad (Peace be upon Him) and so is the case of the impugned definitions. These petitions are therefore liable to be rejected. By a majority of four to one both the petitions are allowed, and it is declared that the provision of sentence of `Rajm' as Hadd in sections 5 and 6 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, are repugnant to the Injunctions of Islam and that the only Hadd is one hundred stripes. Necessary amendments be made in the sections noted above by the 31st of July, 1981. Feeling dissatisfied and aggrieved, an appeal against this judgment was preferred by Federation of Pakistan before the Hon'ble Supreme Court of Pakistan.

4. It is pertinent to mention here that during the pendency of that appeal (Sh. Appeal No. 14 of 1981), Dr. Riazul Hasan Gilani, Advocate filed Review Sh. Petition No. 13/I of 1982, wherein this Court reviewed its judgment dated 21.03.1981 vide, its short order dated 20.06.1982 which reads as under:- "For reasons to be recorded, this petition is allowed, the order of this Court passed on 21st of March, 1981 is recalled. The result is that the petitions of the respondents shall stand dismissed. No oders as to costs" The judgment is reported in PLD 1983 FSC 255 titled as Federation of Pakistan v. Hazoor Bakhsh and 2 others and for the sake of convenience, the concluding portion of this judgment is reproduced as under:--

5. In the wake of the review judgment passed by this Court, the appeal against the said judgment dated 21.03.1981 was withdrawn on 09.04.1983. For the sake of ready reference the same is reproduced as under:- "Learned Advocate-on-Record placed on record the latest communication received through telegram for the withdrawal of this appeal. He has accordingly made a request for withdrawal, this appeal accordingly is dismissed as withdrawn".

6. Since no appeal against this judgment has been filed before Shariat Appellate Bench of Hon'ble Apex Court and the judgment passed by this Court has attained finality. This question pertaining to section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for all intent and purposes is a past and closed chapter and cannot be reopened through any fresh petition before this Court. Hence, this petition before this Court is not competent. We are not here to hear appeal against our own judgment, hence petition is dismissed in-limine.

7. The petition was dismissed vide our short order dated 02.03.2022 and above are the reasons of the short order of even date. No order as to cost. MWA/6/FSC Petition dismissed.