' MUHAMMAD JUNAID GHAFFAR, J.---Through the above Criminal Revision Applications ("Application"), the applicants in both the applications have impugned the judgment dated 7-9- 2013 passed by the learned IIIrd Additional Sessions Judge, Hyderabad in Criminal Appeal No.3 of 2012, whereby the learned Additional Sessions Judge has maintained and upheld the conviction awarded to the applicants by Judicial Magistrate-XII, Hyderabad in Criminal Case No.201 of 2012 registered under sections 3 and 4 of the Prohibition (Enforcement of Hudood) Ordinance, 1979. The sentence awarded to the applicants was R.I. For 2 years and fine of Rs.5000 each and in default to further suffer S.I. For one month.
2. The instant application was presented before this Court on 17-9-2013 and on the same day, an objection was endorsed by the office of this Court whereby the applicant's Counsel was directed to satisfy that as to how the instant application is maintainable before this Court as the matter falls within the jurisdiction of the Federal Shariat Court. In reply to such objection, the Counsel for the applicants submitted to the office that since the sentence awarded to the applicants is of two years' R.I. And such being a short sentence hence this Court has jurisdiction to entertain the matter.
When the matter was placed before this Court on 14-10-2013. a learned Single Judge of this Court passed the following order, whereby the reply to the office objection was accepted and the Miscellaneous Application filed under section 426 Cr.P.C. Was also allowed by suspending the impugned judgment. For the sake of convenience, the said order is reproduced as under:- "1. Office objection complied with.
The case of the applicants is that they have been convicted and sentenced by the trial Court for a period of two years and fine of Rs.5000 each and in case of non-payment of fine further S.I. For one month more vide judgment dated 25-1-2012, thereafter the applicants preferred appeal against such judgment before the learned IIIrd Additional Sessions Judge, Hyderabad, but their request was turned down and the impugned judgment passed by the trial Court was maintained by the learned IIIrd Additional Sessions Judge vide impugned judgment dated 7-9-2013.
' Learned counsel for the applicants submits that the conviction and sentence awarded to the applicants is short one of two years and the judgments passed by the courts below are based on misreading and non-reading of the evidence available on record. He relied upon the case of Abdul Hameed v. Muhammad Abdullah (1999 SCMR 2589).
' Learned D.A.G. Raised no objection to the suspension of the sentence on the ground that the conviction and sentence awarded to the applicants comes within the ambit of short term sentence.
' In view of above, the operation of impugned judgment is suspended and applicants are admitted to bail subject to their furnishing solvent surety in the sum of Rs.50,000 (Rupees Fifty Thousand) each and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court.
' Office is directed to call R & Ps from the trial Courts."
3. Though on 14-10-2013, the learned D.A.G. Had consented for granting the application under section 426, Cr.P.C. As the sentence awarded to the applicants was a short one, however, on 21-2- 2014, the learned D.A.G. Raised objection in respect of the maintainability of the instant application as according to learned D.A.G. The matter pertained to the Prohibition (Enforcement of Hudood)
Ordinance, 1979 and the jurisdiction in respect of such matters lies exclusively with the Federal Shariat Court under Article 203-DD of the Constitution of Islamic Republic of Pakistan. Subsequently, this Court had appointed Syed Madad Ali Shah, a Senior Advocate of this Court and Mr. Muhammad Iqbal Kalhoro, Additional Prosecutor General. Sindh as Amici Curiae to assist this Court in respect of the maintainability of the instant revision application. Since Mr. Muhammad Iqbal Kalhoro, learned A.P.G. Has been recommended by the Judicial Commission for appointment as an Additional Judge of this Court, hence learned A.P.G. Could not assist this Court. However, the learned senior Counsel Mr. Madad Ali Shah was very kind enough to assist this Court on the subject matter.
4. Learned counsel appearing on behalf of the applicants, though conceded that the instant application was not maintainable as the jurisdiction lies with the Federal Shariat Court, however learned counsel contended that since the conviction was short in nature i.e. Of two years' R.I., as such this Court has jurisdiction as in the cases decided under the Hudood Laws by the Court of Session in which the conviction is of two years or less, the appeal lies to this Court. Per learned Counsel in view of such position, this Court has plenary powers and so also inherent jurisdiction to entertain the instant application as otherwise it would cause great inconvenience to the applicants.
5. Syed Madad Ali Shah learned Amicus Curiae submitted that this Court has no jurisdiction in the matter as the applicants have been convicted by the Court of Judicial Magistrate against which the applicants had preferred an appeal before the learned Additional Sessions Judge and now through instant application, the applicants have sought revision of the order passed in appeal. Per learned Amicus Curiae, in view of the provisions of Article 203-DD of the Constitution of Islamic Republic of Pakistan, the revisional jurisdiction in such matters has been conferred on the Federal Shariat Court. In support of his contention, learned Amicus Curiae relied upon the cases reported as Saeed Ahmed v. The State (2003 PCr.LJ 546), Darya Khan v. The State (PLD 1989 Karachi 115), Muhammad Ryas v. The State (1986 PCr.LJ 344), Liaqat Ali and 2 others v. The State and another (PLD 1989 Karachi 481); Qadeer Akhtar v. The State (1986 PCr.LJ 1334), Haji Sakhi Dost Jan v. Pakistan Narcotics Control Board and another (1998 SCMR 1798) and Syed Maskin Shah and another v. The State and 2 others (1994 MLD 190). Learned Amicus Curiae finally contended that in view of such settled principle, the instant application can either be returned to the applicants or sent to the Federal Shariat Court directly as this Court deems fit. However learned Amicus was of the view that the order of suspension of sentence whereby the applicants have been admitted to bail is to be recalled.
6. The learned D.A.G. Has adopted the arguments of learned Amicus Curiae.
7. Mr. Shahid Shaikh, learned A.P.G. Contended that this Court has no jurisdiction in the matter and therefore, the order of suspension of sentence has to be recalled but owing to the fact that the sentence is of short term, some time may be granted by this Court to the applicants to approach the Federal Shariat Court and obtain bail after getting the impugned judgment suspended. In support of his contention, the learned A.P.G. Relied upon the case of Muhammad Sharif v. The State reported in PLD 1999 Supreme Court 1063.
8. I have heard learned Counsel for the applicants, learned Amicus Curiae and learned A.P.G.
9. It appears that the instant application has been filed under sections 435 and 439 read with section 561-A, Cr.P.C. On the very first date, the office had raised objection with regard to the maintainability of the instant application. However, on 14-10-2013 in view of the reply of the applicants' Counsel, the office objection was overruled perhaps due to the fact that learned D.A.G.
Had also conceded to the grant of application under section 426, Cr.P.C. For the reason that the sentence was of only two years' R.I. However, subsequently the learned D.A.G. Has raised objection in respect of the maintainability of instant application. The revision application under sections 435 and 439, Cr.P.C. Before this Court lies in respect of any proceedings bare any Criminal Court and while exercising such revision. This Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed and as to the regularity of any proceedings of such Criminal Court may call for such record and examine it. However, this revisional power does not lie with this Court in respect of the laws relating to the enforcement of Hudood. Here it would be advantageous to refer to the provisions of Articles 203-DD and 203-G of the Constitution which provides for the powers, functions and jurisdiction of the Federal Shariat Court. The same are in the following manner:--
9. It appears that the instant application has been filed under sections 435 and 439 read with section 561-A, Cr.P.C. On the very first date, the office had raised objection with regard to the maintainability of the instat application. However, on 14-10-2013 in view of the reply of the applicants Counsel, the office objection was overruled perhaps due to the fact that learned D.A.G.
Had also conceded to the grant of application under section 426, Cr.P.C for the reason that the sentence was of only two years R.I. However, subsequently the learned D.A.G. Has raised objection in respect of the maintainability of instant application. The revision application under sections 435 and 439, Cr.P.C. Before this Court lies in respect of any proceedings before any Criminal Court and while exercising such revision. This Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed and as to the regularity of any proceedings of such Criminal Court may call for such record and examine it. However, this revisional power does not lie with this Court in respect of the laws relating to the enforcement of hudood. Here it would be advantageous to refer to the provisions of Articles 203-DD and 203-G of the Constitution which provides for the powers, function and jurisdiction of the Federal Shariat Court. The same are in the following manner:--- "203-DD. Revisional and other jurisdiction of the Court.---(1) The Court may call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
(2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: ' Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence.
(3) The Court shall have such other jurisdiction as may be conferred on it by or under any law."
' 203G. Bar of jurisdiction.--Save as provided in Article 203F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court.
10. From the perusal of the above Article, it can be seen that it is only the Federal Shariat Court which can call for and examine the record of any case decided by any Criminal Court under any law relating to the Enforcement of Hudood for the purposes of satisfying, itself as to the correctness, legality or propriety of any finding, sentence or order passed by such Court. Therefore, the contention of learned Counsel for the applicants that the sentence is of 2 years and since in respect of conviction of 2 years by the Sessions Court in Hudood Cases, the appeal lies to this Court, as such under the inherent powers of this Court the instant application is maintainable before this Court is based on misconception and cannot be sustained in view of above express provision of the Constitution which is the supreme law of the land. The revisional powers of this Court in respect of Hudood matters as raised in the instant application is excluded, hence such contention is hereby repelled. It must be appreciated that by virtue of this overriding provision under the Constitution, no other subordinate legislation can confer any such jurisdiction even to the honorable Supreme Court or to the High Court. In respect of any matter of which the jurisdiction lies with the Federal Shariat Court. The only exception, however, in such matters is the right of appeal provided before the honorable Supreme Court under Article 203-F of the Constitution.
Therefore it can be safely concluded that matters in which revision lies with the Federal Shariat Court. Then no such jurisdiction can be conferred upon the High Court in respect of such matters.
However, there is another aspect of the case and that is in respect of inherent powers of this Court under section 561-A, Cr.P.C. This aspect will be dealt with in the latter part of this judgment.
11. This issue that as to whether the High Court has any powers of revision under the Hudood cases has been discussed and settled in various judgments of the High Courts and one such judgment is of the Baluchistan High Court in the case of Jaffar Khan and another v. The State reported in 1985 PCr.LJ 2611 which has dealt with a more or less similar matter wherein a revision application was filed under section 439 Cr.P.C. Against an order passed by the Additional Sessions Judge, Quetta in a case registered under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned Division Bench speaking through Ajmal Mian, Acting C.J. (as his lordship then was), has observed as follows:-- "In this regard it may be pertinent to observe that Article 203-DD of the Constitution of the Islamic Republic of Pakistan 1973 provides that the Federal Shariat Court may call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by and as to the regularity of any proceedings of such Court and may when calling for such record, direct that the execution; of any sentence be suspended and if the accused is in confinement then he be, released on bail or on his own bond pending the examination of the record. The above Article is to be, read with Article 203-G, which provides that save as provided in Article 203-F, no Court or Tribunal, including the Supreme Court and a High Court shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court Federal Shariat Court. It is evident, that the proper remedy, for the petitioner is to file revision before the Federal Shariat Court. In this behalf reference may be made to the case of Muhammad Ilyas v. The State reported in 1986 PCr.LJ 344, in which a learned Single Judge of the High Court, declined to entertain a revision in view of the above Articles 203-DD and 203-G of the Constitution of Islamic Republic of Pakistan, 1973."
12. The same view has been reiterated in the case of Sardarulath v. The State (1998 PCr.LJ 2001).
Imdad Hussain Tunio v. The State (2013 PCr.LJ 882) and the case of Darya Khan (Supra), wherein it has held that the revisional jurisdiction in the cases of Hudood Ordinance exclusively vests in Federal Shariat Court.
13. In view of hereinabove, I am of the view that the instant application is not maintainable before this Court as the jurisdiction in such matters exclusively lies with Federal Shariat Court as the revisional powers under Article 203-DD of the Constitution have been conferred upon the Federal Shariat Court and when the same is read with Article 203-G, it further clarifies that no Court can exercise such jurisdiction including the Supreme Court and the High Court in respect of any matter which is within the powers or jurisdiction of Federal Shariat Court. In view of such position, the instant application is not maintainable before this Court; consequently office is directed to return the instant application after retaining copies thereof to the applicants, who may submit the same before the Federal Shariat Court, if so advised.
14. However, the matter does not end here as in the instant case, this Court has already exercised jurisdiction to the extent, whereby the impugned judgment has been suspended and the applicants have been admitted to bail pending final decision on the instant application (see Para 10 above). Though once it is held that this Court has no jurisdiction in the instant matter, as the same pertains to the enforcement of Hudood laws for which the appropriate jurisdiction lies with the Federal Shariat Court no further discussion is warranted. But, at the same time it must be appreciated this Court has its inherent powers under section 561-A, Cr.P.C, which in fact has not been conferred upon the Federal Shariat Court under the Constitution or under any other law, at least to the exclusion of the High Court in such matters under the Hudood Laws. The inherent powers under section 561-A, Cr.P.C. Are wide enough to exercise jurisdiction in a matter even in respect of Hudood Laws whereby the very exercise of jurisdiction or of taking cognizance of any such matter by a trial Court is challenged and quashment of the proceedings has been sought for lack of jurisdiction. Such inherent powers are always and still available to this Court and the exclusion under Article 203-DD read with Article 203-G of the Constitution does not ousts such inherent powers of this Court. If any authority is needed, one may refer to the case of Liaquat Ali and 2 others v. The State and another reported in PLD 1989 Karachi 481, wherein a learned Single Judge of this Court has observed as follows:- ' 'From the above-cited and discussed cases, it seems that the consensus of judicial view is that while construing statutes, the exclusion of jurisdiction of the superior Courts is not to be readily inferred unless and until very explicit words are used in the relevant statute itself in that behalf manifesting a contrary intention, and that there is a strong leaning against such exclusion.
' I am inclined to hold that since the Federal Shariat Court under Article 203-DD has been conferred revisional power, the High Court of any other Court cannot entertain a revision by virtue of express exclusion provided in the Article 203-G to the effect that no Court or tribunal, including the Supreme Court and High Court shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of Federal Shariat Court but since the Federal Shariat Court has not been conferred the power akin to that which has been conferred on a High Court under section 561-A of the Code, the jurisdiction of the High Court to entertain a petition under section 561-A has not been excluded under above Article 203-G.
However, the High Court cannot entertain a petition under section 561A in respect of a proceeding pending under Hudood or Zina Ordinance before a competent Court unless it forms a view that it is necessary to prevent abuse of process of Court and that the challan submitted against the accused contained no allegations or accusations, which if are allowed to go to trial is not likely even remotely to end up the trial in conviction. Furthermore, a proceeding under section 561-A of the Code cannot be entertained after the recording of the conviction by the competent Court under the Hudood or Zina Ordinance as the remedy available to the party is before the Federal Shariat Court and before the Appellate Shariat Bench of the Hon'ble Supreme Court."
15. Though it has been held in the above judgment that proceedings cannot be entertained under section 5.61-A Cr.P.C. Once conviction has been awarded under the Hudood Laws as the remedy of revision in such matters lies with the Federal Shariat Court and I am in respectful agreement with the principle settled in the above judgment and have already ordered that the instant application is not maintainable on merits before this Court and has to be returned to the applicant for presentation before the Federal Shariat Court, if so advised. But at the same time one cannot remain oblivious of the fact that this Court has already entertained the instant application by overruling the office objections and has also granted bail to the applicants by suspending the impugned judgment. Therefore in view of the peculiar facts and circumstances of the instant case and considering that one of the applicants is admitted to Hospital and is having treatment of his Kidneys being seriously damaged, it would not be appropriate and in the interest of justice to immediately recall the order of suspension of the impugned judgment; hence by exercising powers under section 561-A Cr.P.C, the applicants are granted a time period of 60 days from the date of announcement of this order to approach the Federal Shariat Court and seek suspension of the impugned judgment and obtain bail from the said Court and till such time the bail already granted to them would continue. However the applicants are directed to place copy of such order before this Court through Additional Registrar within the period of 60 days. In failing to do so, appropriate orders for issuance of NBWs as well as forfeiture of the surety lying before this Court would be initiated without any further notice.
16. Before parting with this judgment I would like to record my appreciation for the valuable assistance rendered by the learned Amicus Curiae by sharing his experience and knowledge of law enabling me to deliver this opinion.
17. The instant Criminal Revision Application is returned for want of jurisdiction.