1993 PLP 724 (SCMR)

‑‑‑‑S.307/325/324/452‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/18‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal‑‑‑Assistant Commissioner agreeing with the report of D.S.P. regarding innocence of accused discharged them with the observations that accused could be dealt with in accordance with law if found guilty during re‑investigation‑‑ Said order of discharge having been set aside by Sessions Court in revision accused sought quashment of Sessions Court's order before High Court‑‑ Illaqa Magistrate in the meantime disagreeing with the D.S.P.'s report for cancellation of the case had sent the case for trial to Sessions Court‑‑‑Such order in question having not been challenged before High Court, the quashment petition was dismissed‑‑‑Leave to appeal' was refused to accused on the ground that they had not challenged before the High Court the aforesaid order of Illaqa Magistrate dated 27‑11‑1990 and should seek relief against that order if so inclined. Shahid Hussain Kadri, Advocate instructed by Muhammad Aslam Chaudhary, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing: 8th February, 1993. ABDUL SHAKURUL SALAM, J: ‑‑Petitioners seek leave to appeal against an order of a learned Judge of the Lahore High Court, Lahore in 205‑0 of 1991, dated 2‑5‑1992.

1. Relevant facts are that on the complaint of Mst. Safia Kausar, a case under section 30.7/325/324/452, P.P.C. and sections 10 and 18, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against the petitioners on 7‑7‑1990. It was initially investigated by Sabir Ali, A.S.I., then by Abdul Majeed S.H.O. and then by Khaliq Dad, Additional S.P. who found the petitioners guilty of the offences. The investigation was then entrusted to Raja Sikandar Hayat, D.S.P. who found the petitioners innocent. Accordingly the S.H.O. placed the papers on 25‑9‑1990 before the Assistant Commissioner, praying that the accused persons should be "discharged". The Assistant Commissioner by a detailed order of the same date, agreed with the D.S.P. and directed the petitioners to be "discharged/released with immediate effect". He however observed that "if during re‑investigation the accused are found guilty the law will again take its own course and they can be dealt with accordingly". The order of the Assistant Commissioner was challenged by the complainant by means of a revision petition before the learned Sessions Judge who accepted the same and set aside the order of Assistant Commissioner dated 25‑9‑1990. This is vide order dated 1‑6‑1991. The petitioners challenged this order through Criminal Misc. No.205‑Q of 1991 in the Lahore High Court. During its hearing it came to the notice of the learned Judge that after the order of the Assistant Commissioner dated 25‑9‑1990 quoted above, on 27‑11‑1990 a report under section 173 of the Cr.P.C. for "discharging the case" was placed before the Illaqa Magistrate, who declined to agree with the D.S.P. that the case should be cancelled. He took cognizance of the offences and as those under sections 10 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were triable by the Court of Session, he sent the case for trial to the latter court. This is vide order dated 27‑11‑1990. Since the last mentioned order was not challenged before the High Court, the quashment petition was dismissed on 2‑5‑1992. Hence this petition.

2. Learned counsel for the petitioners has vehemently contended that the order of the learned Additional Sessions Judge dated 1‑6‑1991 setting aside the detailed order of the Assistant Commissioner dated 25‑9‑1990 was without lawful authority. .

3. After‑hearing the learned counsel for the petitioners we find that as the matter stands now the case against the petitioners has been sent up for trial before the learned Sessions Judge by the Illaqa Magistrate vide order dated 27‑11‑1990 and as this order was not challenged before the High Court, the proper remedy for the petitioners is to seek relief against the said order if the petitioners are so inclined. Subject to this observation this petition is dismissed. N.H.Q./K‑208/S Leave refused.