Summary: (a) Islamic Law – Nikah – Competence of sui juris woman – Zina (Enforcement of Hudood) Ordinance, 1979, Ss. 11 & 16 – Cr.P.C., S. 561-A – A Muslim woman of sound mind and full age (sui juris) possesses legal autonomy to contract a valid marriage of her own free will without requiring the consent of a wali (guardian) – Marriage voluntarily contracted by an adult woman cannot be criminalized or treated as illicit merely for contravening familial wishes – Registration or family objection does not affect validity of Nikah under Islamic or statutory law – Followed Hafiz Abdul Waheed v. Mrs. Asma Jehangir & another (PLD 2004 SC 219). (b) Criminal Procedure Code, 1898 – S. 561-A – Quashment of FIR – Abuse of process – FIR lodged under Ss. 11/16 Zina Ordinance against legally married couple – High Court quashed FIR on finding marriage valid and voluntary – Held, once existence of lawful Nikah is established, presumption of zina is fully negated and continuation of proceedings constitutes abuse of process – Courts are empowered to exercise inherent jurisdiction to prevent misuse of criminal law for personal or familial vengeance. (c) Islamic Jurisprudence – Proof of Zina – Standard of evidence – Under Quranic injunctions and Hudood framework, offence of zina requires testimony of four eyewitnesses to the actual act; conviction cannot rest on suspicion, conjecture, or familial disapproval – False accusation of zina is itself a punishable offence under Qur’an (Surah Al-Noor 24:4). (d) Constitutional Law – Fundamental rights – Azad Jammu and Kashmir Interim Constitution, 1974, Art. 3-G – Protection of dignity, privacy, and liberty – Husband and wife, being lawfully wedded, entitled to full protection of constitutional guarantees against harassment or false prosecution. (e) Administration of justice – Judicial duty – Scope of interference at investigation stage – Exceptional circumstances exist where prosecution is manifestly mala fide or devoid of legal foundation – Quashment justified to prevent miscarriage of justice and uphold sanctity of lawful marriage. Disposition: –– Petition for leave to appeal dismissed. –– High Court’s judgment quashing FIR No. 30/2025 under Ss. 11/16 Zina Ordinance upheld as lawful and justified.

Summary: (a) Constitution of Pakistan — Arts. 8(3), 8(5), 10-A, 175 & 268 — Pakistan Army Act (XXXIX of 1952), Ss. 2(1)(d)(i) & (ii), 59(4) — Vires of law — Trial of civilians by military courts — Scope and validity. Majority judgment under Art. 184(3) had declared the impugned provisions of the Army Act unconstitutional; however, upon intra-court appeal, the Supreme Court restored Ss. 2(1)(d)(i) & (ii) and 59(4). Justice Mazhar held that the authority to try persons “not otherwise subject” to the Act is confined to limited offences, namely sedition, abetment of desertion, or espionage under the Official Secrets Act, 1923, having a direct nexus with military affairs. The earlier declaration of invalidity misconstrued Art. 8(5), which merely prevents suspension of fundamental rights during a constitutional emergency and cannot be invoked to annul existing laws protected by Art. 268. Courts-martial, being part of a distinct military-justice system traceable to Entry No. 1, Federal Legislative List, fall outside Art. 175(3) separation-of-powers framework. Held, the Army Act provisions are intra vires and constitutionally sustainable. Cited Cases: F.B. Ali v. The State PLD 1975 SC 506; Benazir Bhutto v. Federation PLD 1988 SC 416; Dr. Mobashir Hasan v. Federation PLD 2010 SC 265; Sui Southern Gas Co. Ltd. v. Federation 2018 SCMR 802; LDA v. Imrana Tiwana 2015 SCMR 1739. (b) Intra-Court Appeal — Supreme Court (Practice and Procedure) Act (2023), S. 5 — Nature and scope. Right of intra-court appeal against orders under Art. 184(3) is a substantive vested right, not a procedural formality. It enables the larger bench to affirm, modify, or vacate the earlier decision and ensures correction of legal or constitutional errors within the Supreme Court’s own jurisdiction. The remedy parallels a letters-patent appeal but is sui generis and integral to the constitutional guarantee of due process under Art. 10-A. Judicial propriety requires that while the Court is one, benches are functional divisions; therefore, ICA proceedings constitute continuation of the original jurisdiction, not an appeal from a subordinate court. (c) Interpretation of statutes — Doctrine of reading down — Presumption of constitutionality. A statute must be preserved if reasonably possible. Courts are bound to lean in favour of validity unless the law is ex facie violative of the Constitution. “Reading down” should be used to sustain functionality, not to destroy legislative intent. Judiciary cannot legislate; its duty is to interpret purposively and uphold Parliament’s objective. Article 8(3) permits special laws governing the armed forces for discipline and proper discharge of duty; therefore, S. 2(1)(d) and S. 59(4) fall within this constitutional exception. Cited Cases: Province of Sindh v. M.Q.M. PLD 2014 SC 531; Delhi Transport Corp. v. D.T.C. Mazdoor Congress AIR 1991 SC 101; Baz Muhammad Kakar v. Federation PLD 2012 SC 923; Province of E. Pakistan v. Siraj-ul-Haq Patwari PLD 1966 SC 854; Ellahi Cotton Mills v. Federation PLD 1997 SC 582. (d) Fair trial and due process — Art. 10-A — Courts-martial procedure — Right of appeal. Right to fair trial existed in procedural law long before Art. 10-A; its constitutional incorporation reinforced, but did not originate, the guarantee. The Army Act and Cr.P.C. collectively ensure fair-trial safeguards—e.g., S. 112 (rules of evidence identical to criminal courts) and S. 133-B (appeal before a Court of Appeals). Moreover, convicted persons now enjoy an independent statutory appeal to High Courts against convictions, consistent with Art. 10-A. Thus, allegations that military justice inherently denies fair trial are unfounded. (e) Delivery of accused to military authorities — Criminal Procedure Code (1898), S. 549 — Concurrent jurisdiction of civil and military courts. Section 549 Cr.P.C. authorizes transfer of custody to military authorities when the offence is triable by court-martial, but such discretion must be exercised by a reasoned, speaking order ensuring satisfaction that the case genuinely falls within military jurisdiction. Pending writs challenging Anti-Terrorism Court transfer orders are to be decided independently by respective High Courts on their own merits. (f) Doctrine of coordinate bench and judicial discipline — Binding precedent. Justice Mazhar endorsed the principle that co-equal benches cannot overrule each other; departures must be by larger benches. However, unlike the dissent of Afridi J., he viewed the ICA’s broader bench as constitutionally competent to revisit F.B. Ali in light of subsequent constitutional developments (Arts. 10-A & 184(3) practice). Judicial hierarchy requires consistency, but correction within the Supreme Court is permissible under statutory appeal. (g) Rights with responsibilities — Freedom of assembly and national security. Peaceful protest is a constitutional right subject to lawful restrictions. However, violent attacks on defence installations or espionage against the State transcend protected expression and fall within offences triable under the Army Act read with the Official Secrets Act, 1923. National security and fundamental rights must operate in harmony; neither can extinguish the other. (h) Legislative competence — Articles 8, 232–233, 268 & 260 — Existing laws protected. By virtue of Art. 268, all pre-constitutional enactments—including the 1967 amendment introducing S. 2(1)(d)—stand preserved until repealed by Parliament. Art. 8(5) cannot retrospectively invalidate these laws. The phrase “relating to members of the Armed Forces” in Art. 8(3)(a) must be construed broadly to cover statutes having any logical or operational connection with the armed forces’ discipline or defence of Pakistan. (i) Doctrine of ultra vires — Judicial review — Limits of judicial power. “Ultra vires” means beyond authority. While courts may strike down enactments lacking legislative competence, they must not question legislative wisdom. Judicial review aims to preserve constitutionality, not destroy it. The impugned Army Act provisions were found neither arbitrary nor discriminatory; the burden to prove otherwise lay on the challengers and was not discharged. Disposition: Appeals allowed. Impugned judgment dated 23 October 2023 was set aside. Sub-clauses (i) & (ii) of clause (d) of S. 2(1) and S. 59(4) of the Pakistan Army Act, 1952 were restored. Civilians accused in the 9–10 May 2023 incidents shall be tried by competent criminal or special courts; individual transfer orders to military custody shall be adjudicated by High Courts on merits. Limitation for appeal before High Courts shall run from the date of notification of amendments under the Army Act.

Summary: (a) Criminal Procedure Code (V of 1898): ----Ss. 108-A, 112 & 491 Freedom of residence—Externment order—Procedural impropriety—Natural justice—Validity—Petitioner, previously convicted under S.302, P.P.C. but acquitted on appeal, was ordered by the District Magistrate to leave her village and reside within the municipal limits of Muzaffarabad under S.108-A, Cr. P. C.—Held, S.108-A, Cr. P. C., originally inserted during the Dogra regime, conferred wide discretionary powers on the executive but did not dispense with fundamental principles of natural justice—The section did not amend or override S.112, Cr. P. C., which required issuance of a show-cause notice and an opportunity for defense before imposing restrictions—No evidence was recorded, and no opportunity was given to the petitioner to present her case—Failure to follow due process under Chapter 8 of the Cr. P. C. rendered the order legally untenable—Petitioner, a widowed mother of seven, was forcibly displaced without demonstrating any overt act prejudicial to public safety or peace—Externment could not be justified merely because influential individuals objected to her residence—Court reaffirmed that freedom of movement and residence are fundamental rights, and the executive must demonstrate bona fide justification for any restrictions—Petitioner’s fundamental rights restored, and orders set aside. (b) Administration of Justice: ----Arbitrary executive action—Judicial review—Protection of fundamental rights—Held, executive action curtailing personal liberty must be subject to judicial scrutiny—While extraordinary legislation may be necessary for security and public order, it should not be misused for private or political motives—Courts must ensure that executive powers are exercised fairly and in compliance with legal safeguards—Freedom of movement and residence are essential elements of a free society, and their curtailment requires strict legal justification—Orders passed under S.108-A, Cr. P. C. in the absence of due process were set aside in exercise of the Court’s revisional jurisdiction. ----Disposition: Petitions accepted; externment orders set aside; petitioner’s fundamental rights restored.