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Civil Petition No. 62 of 1985, decided on 15th October, 1985.

‑‑‑S. 203‑‑Criminal Law (Special Provisions) Ordinance (II of 1968), Preamble‑‑Review, right of‑‑Right of review; held, was a substantive right which was creation of statute‑‑Authority to review, could not automatically vest in forum passing order.

Muzaffar Ali v. Muhammad Shaft P L D 1981 S C 94 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi P L D 1970 S C 1 rel.

‑‑‑S. 19(3)‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss. 9 & 13‑‑Criminal Law (Special Provisions) Ordinance (II of 1968), Preamble‑‑Penal. Code (XLV of 1860), Ss.350, 493, 497 & 498‑‑Offences against property exclusively triable under Ordinance VI of 1979, while offences concerning enticement and kidnapping etc. were regulated by provisions of Ordinance VII of 1979‑ Forum constituted under Ordinance (II of 1968) had absolutely no jurisdiction to deal with offences covered by Hudood Ordinance or repealed by it‑‑Held, no Court other than one created under such laws, had any jurisdiction to adjudicate upon matter concerning offences falling within domain of these laws‑‑Comparison of Hudood Ordinance with old provisions of Penal Code.

Offence of theft liable to Hadd or Tazir is exclusively triable by the provisions of "Offences Against Property (Enforcement of Hudood) Ordinance, 1979, whereas offences concerning enticement, kidnapping etc. are now regulated by the provisions of Ordinance VII of 1979. Further section 19(3) (a) of Ordinance VII of 1979 has specifically repealed Chapter XVI and sections 493, 497 and 498 of Chapter XX of P.P.C. Thus, no Court other 'than created under the aforementioned Ordinance, has any jurisdiction, to adjudicate upon matter concerning offences falling within the domain of these laws. Section 3 of both these Ordinances clearly lays down that these Ordinances shall have, overriding effect notwithstanding anything contained in any other law. Taking of cognizance by Assistant Commissioner with powers of Deputy Commissioner in respect of offences under section 380 or 498, P.P.C. was not warranted by law. Forum constituted under Ordinance II of 1968 had absolutely no jurisdiction to deal with offences covered by Hudood Ordinance or repealed by it.

Maqsood Ahmad v Summary Military Court, Pishin P L D 1981 Quetta 71 rel.

‑‑‑Ss. 498 & 424‑‑Provisional Constitution Order (1 of 1981) Art. 9‑‑Complaint filed in Court not constituting commission of any offence‑ Complaint indicting reflection of annoyance on account of unpleasant matrimonial relationship‑‑Initiation of criminal proceedings in respect of allegations mentioned in complaint, being totally without lawful authority were of no legal effect.

‑‑‑S. 190‑‑Complaint‑‑Person not nominated as accused in complaint‑ Effect‑‑Issuance of warrant against person not nominated as accused in complaint filed in Court, held, was highly unjust, arbitrary and in excess of jurisdiction vested Court under law.

‑‑Art. 9‑‑Constitutional jurisdiction, exercise of‑‑Alternate remedy‑‑Not availing of‑Inappropriate case, showing complete lack of jurisdiction mis exercise of powers, disregard of law, wholly without lawful authority, palpably arbitrary or based on proved mala fide, constitutional jurisdiction, held, could be directly invoked to rectify patent illegalities and excess authority and jurisdiction apparent on record without resorting to alternate remedy.

The Murree Brewery Co. Ltd. v. Pakistan through Secretary of Government of Pakistan, Works Division P L D 1972 S C 279; Syed Ali Abbas v. Vissan Singh P L D 1969 S C 294; Salooka Steel Mills v, Director‑General, Coast Guards of Pakistan P L D 1981 Quetta 1; Salahuddin v. Frontier Sugar Mills and Distillery Ltd, P L D 1975 S C 24; Ch. Ghulam Ali v. Commissioner, Lahore Division P L D 1981 Lah 368 and Syed Riaz Hussain Zaidi v. Muhammad Iqbal and others P L I 1981 Lah. 215 ref.

K.N. Kohli for Appellants.

Sultan Mahmood for Respondents.

Dates of hearing: 12th and 15th October, 1985.

Brief facts le ding to this petition are that private respondent Qadir Bakhsh was married to Mst. Hamid sister of petitioner No. 1 towards year 1979. Relations between the spouses got strained, whereupon Mst. Hamida left the house of he husband and came to Nushki to reside with her mother. Few day thereafter i.e. 15‑7‑1982 respondent No. 2 filed a complaint under section 494/424, P.P.C. against petitioner No. 1 alleging that he had taken away Mst. Hamida without his permission and had also dishonest taken away ornaments and other articles mentioned in the complaint. 1 appears that on 17‑7‑1982 Assistant Commissioner, Kalat forwarded the complaint to S.H.O Kalat for enquiry. After due enquiry S.H.0 concerned gave his report on 26‑8‑1984 expressing that complaint file by respondent No.2 is mainly on account of matrimonial dispute between respondent No. 2 and his wife, who is sister of the petitioner and accusations against petitioner No. 1 have been levelled to cause harassment as such recommended for its dismissal. On the same day Assistant Commissioner Kalat relying on the report of S.H.O. dismissed the complaint for want of proof with direction that matter be consigned to record. It is alleged that on 5‑1‑1985 successor in office took cognizance of the case and issued process not only against petitioner No. 1 who was named in the complaint, but also against petitioner No. 2 Sher Muhammad. Later non‑bailable warrants for the apprehension of petitioners were also issued. Apprehending their arrest petitioner on 19‑5‑1985 filed revision petition before Member Board of Revenue which was however dismissed in limine on 16‑6‑1985 with following observation:‑

"Case came up today. Counsel for the petitioner is present and advanced his preliminary arguments. This revision petition is directed against the proceedings pending before the Assistant Commissioner, Kalat. The petitioner in the first instance may approach the Commissioner and resort to the remedy of appeal available under the law. The petition is, therefore, premature and accordingly ordered to be dismissed."

Aggrieved by the same present petition was filed on 3‑7‑1985.

2. Mr. K. N. Kohli, learned counsel for petitioner vehemently urged that (i) once complaint was dismissed by respondent No. 1 he had no jurisdiction to review said order. (ii) Process has been issued in respect of offences under section 380/494, P.P.C. which are covered by the provisions of Hudood Ordinance, 1979, therefore, respondent No. 1 has no lawful authority to take cognizance for the said offences. (iii) Stated allegations, do not constitute any offence and complaint apparently is intended at harassment of petitioners, (iv) Petitioner No. 2 was not nominated in the complaint filed by respondent No. 2, therefore, no Court or authority was competent to issue warrants for his apprehension.

3. Whereas Mr. Sultan Mahmood, learned counsel appearing for official respondents submitted that respondent No.3 had merely pointed out to normal remedy available to the petitioners under law, therefore, writ was not competent to challenge the same. Private respondent reiterated his accusation against petitioner and prayed for the dismissal of petition. We have carefully considered the arguments advanced on behalf of the parties.

4. First important feature of the case is based on undisputed fact that complaint filed by respondent No. 2 was dismissed by respondent No. 1 vide order, dated 26‑8‑1984. It has, therefore, to be seen, whether proceeding in respect of complaint which had been consigned to record by a competent forum can at all be reopened by same authority or successor in office. Evidently there is no provision for review under Ordinance II of 1968. It is well‑settled that right of review is a substantive right which is always creation of statute on the subject. The authority to review cannot be deemed to automatically vest in the A forum passing .an order. Besides review cannot be construed as continuation of original matter or proceedings. This right can obviously be availed only when law specifically so provides and cannot be deemed to be existing by way of routine. Since provisions of Ordinance do not expressly contain power of review, therefore, the same cannot be exercised to reopen or reconsider the matter past and closed. In this behalf observation in following cases may be profitably relied (i) Muzaffar Ali v. Muhammad Shafi P L D 1981 S C 94 and (ii) Hussain Bakhsh v. Settlement Commissioner, Rawalpindi P L D 1970 S C 1 and Constitution Petition No. 68 of 1985'Ghulam Dastagir v. Muhammad Yar.

5. Second contention relates to jurisdiction of forums created under Ordinance II of 1968 to deal with offence of enticement or theft. It may be seen that offence of theft liable to Had or Tazir is exclusively triable by the provisions of "Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Whereas offences concerning enticement, kidnapping etc. are now regulated by the provisions of Ordinance VII of 1979," Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Further section 19(3)(a) of Ordinance VII of 1979 has specifically repealed Chapter XVI and sections 493, 497, and 498 of Chapter XX of P.P.C. Thus, no Court other than created under the aforementioned Ordinance, has any jurisdiction, to adjudicate upon matter concerning offences falling within the domain of these laws. Section 3 of both these Ordinances clearly lays down that these Ordinances shall have, overriding effect notwithstanding anything contained in any other law. Therefore, on this score as well taking of cognizance by respondent No. 1, in respect of offences under section 380 or 498, P.P.C. is not warranted by law. Forum constituted under Ordinance II of 1968 have therefore, absolutely no jurisdiction to deal with offences covered by Hudood Ordinance or repealed by it. In this view I am also supported by the observation in case Maqsood Ahmad v. Summary Military Court, Pishin P L D 1981 Quetta 71. Relevant portion of report is reproduced below:‑

"7. In that view of the matter, and because the order is a latter, law, having overriding provisions over all the other laws on the subject, it would prevail over the relevant provisions of the Dangerous Drugs Act. In fact it has the effect of impliedly repealing, such provisions of Dangerous Drugs Act. Reference in this behalf is made to Tammayya v. Tyadapusapati.

Trial of the petitioner, in such circumstances could not take place under the Dangerous Drugs Act. As no offence under M.L.O. 10 was made out, therefore, his trial and conviction for an offence under that M.L.O. is patently without lawful authority. The petitioner could only be tried under the Order. As such the assumption of jurisdiction by the Summary Military Court to try him was without lawful authority.

8. The overriding nature of the Order is also canvassed from angle. It is contended that the Constitution of the Islamic Republic of Pakistan contains another directive regarding enforcement of Islamic Laws. The preamble to the said constitution and its Articles 3 and 227 (1) contain such directives. The promulgation of the Prohibition (Enforcement of Hadd) Order, 1979 is a step towards that direction. Therefore, it is contended, that even if relevant provisions of the Dangerous Drugs Act are held to be in the field, the law which is conducive to the application of the laws of Islam would be preferred and that such law, in the present case, is the Order. Reliance in this behalf is placed on Hamida Begum v. Murad Begum. The submission is unexceptionable."

Next contention relates to the effect of stated allegations. Apparently allegations as set out in the complaint do not constitute commission off any offence whatsoever. In order to appreciate this aspect it would be appropriate to reproduce contents of complaint.

Minute examination of above assertions indicates that it is merely reflection of annoyance on account of unpleasant matrimonial relationship whereby respondent has unnecessarily attempted to involve petitioners who are brothers of his wife by setting out allegations of enticement or theft, obviously to coerce them for some settlement in the dispute between respondent No.2 and his wife. Bare persual of complaint shows D that no offence at all appears to have been committed by and of the petitioners, therefore, complaint was rightly dismissed by respondent No. 1 vide his order dated 26‑8‑1984. Consequently initiation of proceedings in respect of above‑mentioned allegations is totally without lawful authority and of no legal effect.

6. It is quite evident from the record that petitioner No. 2 was not nominated in the complaint, therefore, issuance of warrants against him by the order of respondent No. 1 is highly unjust, arbitrary and in excess of jurisdiction vested in him under any law. We are, therefore inclined to hold that proceedings initiated against petitioners by Assistant commissioner are illegal, without lawful authority and of no legal effect.

7. Now it has to be seen whether relief by way of Constitution Petition can be availed in view of objection of the respondent that alternate remedy could be resorted to by the petitioner. It may be observed that action taken by respondent No. 1 is in flagrant violation of law and in the exercise of jurisdiction not vested in him thereby likely to cause injustice and harassment to petitioners. As held above the forums under Ordinance II have no jurisdiction to deal with accusation in this case. Therefore, it would not be proper to leave petitioners at the mercy of those authorities, and to be confronted with sufferings. It may be observed that in an appropriate case, showing complete lack of jurisdiction, wrong exercise of powers in disregard of law wholly without lawful authority, palpably arbitrary or based on proved mala fides, writ jurisdiction can be directly invoked to rectify patent illegalities and excess of authority jurisdiction apparent on record. In this behalf reference can be had to observations in following cases:‑

(i) The Murree Brewery Co. Ltd. v. Pakistan through Secretary of Government of Pakistan Works Division P L D 1972 S C 279.

(ii) Syed Ali Abbas v. Vissan Singh P L D 1969 S C 294.

(iv) Salooka Steel Mills v. Director‑General Coast Guards of Pakistan P L D 1981 Quetta 1.

(v) Salahuddin v. Frontier Sugar Mills and Distillery Ltd. P L D 1975 S C 24.

(vi) Ch. Ghulam Ali v. Commissioner Lahore Division, Lahore P L D 1981 Lah. 368.

(vii) Syed Riaz Hussain Zaidi v. Muhammad Iqbal and others P L D 1981 Lah. 215.

Keeping in view facts and circumstances discussed above, we are persuaded to hold that this is a fit case for entertaining writ irrespective of alleged alternate remedy.

Thus, for the foregoing reasons we are inclined to accept the petition, and declare that order, taking cognizance and issuance of process against petitioner by respondent No. 1 is illegal, in excess of jurisdiction vested in him, without lawful authority and of no legal effect.

Parties are however left to bear their own costs.

A.A. Petition accepted.

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