' IBADAT YAR KHAN, J.--The appellants in Criminal Appeal No,46/P of 1988 and Jail Criminal Appeal No,15/I of 1989 and Criminal Appeal No,55/P of 1988 have challenged their convictions on various grounds mentioned in details in their respective appeals and prayed for setting aside their convictions by this Court. Among the various grounds raised by the appellants which are more or less common and identical in all these appeals, some will presently be mentioned. But before mentioning these grounds it may be stated that the gravamen of the charge in all these appeals is that the appellants while travelling in their cars in the Mahmand Agency and Bajaur Agency, both falling in the area of forming the Tribal Territory and falling beyond the limits of the settled area of Pakistan, were apprehended by Beat Moharrirs at the Check Posts and found to be in possession of 10' Kgs. Of Heroin in Criminal Appeal No,46/P of 1988 and Jail Criminal Appeal No,15/I of 1989 and 24 kilograms of heroin in Criminal Appeal No,55/P of 1988.
2. The beat Moharrir, as a result of recovery of Heroin from the possession of the appellants lodged F.I.Rs, and put them up before the Political Agents for trial. The Political Agents, after preliminary inquiries, constituted a council of elders (Jirga of notables) of the area with directions that the jirga should conduct open and secret inquiries and after hearing evidence as well as the accused should submit their recommendations to the Political Agents concerned. The Jirgas after conducting open and secret inquiries and after hearing the appellants submitted their recommendations to the Political Agents of the Area. Appellants in each case have made confession and have admitted that they were carrying the heroin to earn profits for themselves.
3. The Assistant Political Agent and Additional District Magistrate Lower Mahmand after examining and scrutinising the recommendations of the Council of elders sentenced Sajjad Hussain appellant in Criminal Appeal No,46/P of 1988 and co-accused Ali Gohar in Jail Criminal Appeal No,15/I of 1989 to 7 years' R.I. 30 stripes each with a fine of Rs,14,500 each under Article 3 (a) of the Prohibition Order 1979 read with 11 F.C.R.
4. The Assistant Political Agent and Additional District Magistrate Lower Mahmand after hearing and scrutinising the recommendations of the council of elders while acquitting the wife of the appellant, sentenced Azizur Rehman in Criminal Appeal No,55/P of 1988 under Articles 3(a) and 4 of Prohibition Order 1979 and 11 F.C.R. And awarded him punishment of 7 years' R.I. And 30 stripes and a fine of Rs,5 lacs under each count. This appellant has also been convicted under section 323 ,PPC/11 F.C.R to suffer R.I. For one year for causing injuries to the staff during the scuffle at the time of his apprehension.
5. All these appellants have filed the appeals against their conviction mentioned above. The main grounds raised in the appeals are as follows:-
(a) That the Prohibition Order of 1979 has not been made applicable to the FATA as required under Article 247 of the Constitution of Pakistan, 1973. Hence the trial Court had no jurisdiction whatsoever to convict the appellant under this Order.
(b) That assuming for the sake of arguments (without conceding) that the said Order is applicable to the FATA, then in that case as per sections 27 and 29 of the said Order the trial Court should have proceeded under Criminal Procedure Code and not under the FCR.
(c) That the fundamental rights being enforced in the country are also available in the FATA. The applicant should have been tried under ordinary law and not under the FCR as the FCR has been declared to be void and a law against the fundamental rights.
(d) That no charge was framed against the appellants, no witness was examined in the presence of the appellants and the appellants were also not given a chance to cross-examine the witness, if any, and to defend themselves through a counsel as guaranteed by the Constitution of Pakistan, 1973.
(e) That the .Mala fides of the trial Court is apparent from the fact that the appellants Ali Gohar and Sajjad Hussain were apprehended on 15-7-1988 and were convicted on 16-7-1988 i.e, within 24 hours.
(f) That the learned trial Court without getting the report of a chemical examiner or expert in Cr.Appeal No,46/P and 15/I has assumed that the alleged goods were heroin. This action of the trial Court also proves arbitrariness and male fides on the part of the prosecution.
(g) That in any case the offence, if any, committed by the appellant not being a scheduled offence, the trial under FCR is illegal even on this score.
(h) That the trial Court had not even fulfilled the formalities and procedure required to be adopted under the FCR.
(i) That it is worth mentioning here that the alleged heroin has already been destroyed by the learned trial Court on 19-7-1988 and a memo to this effect is present on the file of Cr. Appeal 46/P/88.
6. Before these grounds could be argued an intervening factor questioning the jurisdiction of this Court to entertain and examine the appeals has been raised by the respondent. We have, therefore, decided that before these appeals and the issues raised therein are examined the question of competency of this Court to entertain the appeal may first be disposed of.
7. Mr. J.D. Akbarji, Advocate-General, N.-W.F.P. Has appeared before us on notice from this Court and has contended that this Court has no jurisdiction to entertain these appeals as the appeals have arisen from orders passed in relation to offences committed in the Tribal Area. According to the learned Advocate-General the Supreme Court and High Courts and even this Court had jurisdiction only over the settled areas of Pakistan and because these offences were committed in territories falling within the Tribal Areas as described in Article 246 of the Constitution, the appeals could not be filed in this Court.
8. The learned counsel also referred to Article 175 of the Constitution, which prescribes the "Establishment and Jurisdiction of Courts." Under this Article "There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law."
Pakistan has been defined in Article 1 of the Constitution. Pakistan shall be a Federal Republic to be known as Islamic Republic of Pakistan herein referred to as Pakistan.
(2) The territories of Pakistan shall comprise.-
(a) The Provinces of Baluchistan, N.-W.F.P., Punjab and Sind.,
(b) The Islamabad Capital Territory.
(c) The Federally Administered Tribal Areas.
(d)
9. Article 246 of the Constitution describes the Tribal areas in which is included Mohmand Agency at item No,VI in clause 'c' of Article 246. By reading the above Articles it is evident that as the Tribal Area also falls within the territories of Pakistan as defined above the jurisdiction of Supreme Court would have extended to this area as well. But this jurisdiction has been curtailed by clause (7) of Article 247 of the Constitution, which specifically lays down:- "247(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Majlis-e-Shoora (Parliament) by la otherwise provides."
10. Learned counsel tried to impress that as the Supreme Cour has been specifically prevented from exercising its authority and jurisdiction in the Tribal Area, this Court should also set a self- impose limit on its territorial jurisdiction in line with the Supreme Court o Pakistan. When told that under the rule of interpretation assumptio of jurisdiction is always preferred to abdication of jurisdiction an no superior Court would easily concede to the ouster of its jurisdiction, the learned counsel had no answer to it. To quote Zafar Hussain Mirza, J. In Benazir Bhutto v. The Federation of Pakistan (PLD 198: SC 416) at page 602:- "The ouster of jurisdiction of the Courts must be couched in express terms or must arise by necessary implication."
11. In the present case as would be shown hereafter no such legislative intent can be spelt out from the charter under which this Court was created.
12. Let us have a look on the special provisions of Chapter 3-A which was engrafted into the Constitution by P.O. No,3 of 1979 on 7-2-1979 and then reshaped in its present form by Constitution (Amendment) Order, 1980 (P.0.1 of 1980) with effect from May 26, 1980. This Chapter consists of 12 Articles and provides a new limb to the Judicial Order of the country and occupies a special position in the scheme of judicial heirarchy. The first Article of this Chapter is Article 203-A, which starts with the words "the provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution." Article 203-B is the definition clause. Article 203-C talks about the constitution of the Court, the number and qualification of the Judges constituting the Court, their terms of appointment, duties and obligations. Articles 203-D and 203-DD are the relevant Articles.
Article 203-D prescribes the main powers, jurisdiction and functions of the Court. This Article prescribes that:- "The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam."
13. Actually these are main functions for which the Court was established. Under this Article any citizen of Pakistan can approach the Court by filing a "Shariat Petition" to seek a relief provided in this Article. But presently we are not concerned with this part of the jurisdiction conferred on this Court.
14. The other branch of jurisdiction of the Court and which is germane to the issue on hand is the "Revisional and other jurisdiction of the Court" and is contained in Article 203-DD. Article 203-DD postulates:- "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 authorise 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 the law."
15. In the above-quoted Article the Court has powers to examine he record of any case decided by any criminal Court under any law elating to the enforcement of Hudood. Even the word "Pakistan" is onspicuously absent in this Article. Indeed no territorial limits can e spelt out by bare reading of this Article.
16. This revisional power has however been circumscribed by two onditions:
(i) That the case under scrutiny should have been decided by any criminal Court and
(ii) The case should fall under "any law relating to the enforcement of Hudood".
17. The first thing we have to see is whether. The judgment now before us has been passed by a criminal Court. Now, a mere look at the impugned judgment would show that it has been passed by a Political Agent, who is also an Additional District Magistrate rather by the Additional District Magistrate, who is also acting as a Political Agent. True the procedure adopted by this Magistrate is a little different from the procedure prescribed in the Criminal Procedure Code for the trial Of similar cases in the settled areas. Whether it is better or inferior form of trial in those conditions in which such decision are rendered is not for us to examine in these proceedings, because it would be a matter relating to procedure and not the status of functionary exercising power under that procedure. Suffice t to say that from any definition the forum qualifies to be termed as criminal Court because the Additional District Magistrate cannot be other than a Court of a Magistrate. This Magistrate has ,crutinised all the papers relating to the prosecution and obtained an opinion of a Jirga or a Council of Elders to assist him in the decision of the case. We have, therefore, no hesitation in saying that this decision, though rendered by adopting a different procedure than in Criminal Court, qualifies to be called a decision of a Court. Using he word "Additional District Magistrate" for the author of the order eaves no room for doubt that the order falls within the provision of 203-DD quoted above.
18. The next question is whether the order was passed in relation to an offence relating to the enforcement of Hudood. The answer is two-fold. Firstly as the title of the order shows it has been passed under Article 3(a) of the President's Order No,4 of 1979, namely, The Prohibition (Enforcement of Hadd) Order, 1979. Order 4 of 1979 was promulgated by President on 9th February, 1979 in pursuance of F the Proclamations of 5th July, 1977 and in exercise of powers assumed by the President under C.M.L.A. Order No,1 of 1977 and all other powers enabling him in that behalf. Article 2 of this order extends its applicability "to the whole of Pakistan". Secondly the concluding paragraph of the order under appeal affirms that the conviction was recorded under this President's Order.
The last passage of the order runs as under:- "I have considered the recommendations of the Council of Elders coupled with evidence on record.
The accused have voluntarily -confessed the charge levelled against them indicating the source where from the heroin was procured. Moreover in view of the unanimous award of the Council of Elders, I am left with no alternative but to hold the accused mentioned above guilty of the offence charged with. I, therefore, convict and sentence each of them under Article 3 (a) of the Prohibition Order 1979/11 FCR to undergo seven years' R.I. In addition to 30 stripes each within the premises of Jail and to pay, a sum of Rs,14,500 as fine each or in default to suffer one year S.I."
18-A The above discussion would show that the case is covered by language of Article 203-DD of the Constitution and no exception can be taken if the case is examined by this Court in its revisional jurisdiction .
18-B The next contention of the learned counsel was that the President's Order No,5 of 1984 namely "Federally Administered Tribal Areas (Exclusion of Jurisdiction of Federal Shariat Court) Order, 1984," has taken away the jurisdiction of this Court and as such this Court cannot entertain these appeals. As a matter of fact President's Order demolishes any argument suggesting that this Court had inherent want of jurisdiction before promulgation of this Order. Had it been so this Order would not have been promulgated by the President. The President's Order No,5 was promulgated by the President of Pakistan in exercise of powers assumed by him in pursuance of proclamation of the fifth day of July, 1977. Article 1 of this Order prescribes its title "This Order may be called Federally Administered Tribal Areas (Exclusion of Jurisdiction of Federal Shariat Court) 1984. The relevant portion (Article 2 of the Order) may be quoted below:- "2. Jurisdiction of Federal Shariat Court not to extend to the Federally-Administered Tribal Areas.-
(1) The jurisdiction of the Federal Shariat Court shall not extend, and shall be deemed never to have extended, to the Federally Administered Tribal Areas.
(2) Notwithstanding the judgment of any Court, including the Federal shariat Court, all laws in force in the Federally Administered Tribal Areas shall be deemed to be and always to have been, valid and shall not be called in question before any Court on any ground whatsoever."
19. As is evident from clause (2) of Article 2 quoted above, this Order was promulgated to render ineffective some decisions perhaps relating to the FCR which may have been passed by any of the Courts mentioned in this clause. But assuming for the sake of argument, that this Article is effective in all situations and creates I an ouster of even criminal revisional jurisdiction of this Court, it is to be assessed whether this can deprive the Court of the jurisdiction vested in it by force of Constitutional provisions itself. In this connection the learned counsel reverted to Article 270-A of the Constitution. It may be mentioned that this Article has been grafted into the body of the Constitution by section 19 of the 8th Amendment Act of 1985. This Article has been subject-matter of great debate in whole of the country and has been drawing attention of the superior Courts in a large number of cases. First the learned counsel relied on clause (1) of this Article and argued that "all President's Orders, Ordinances, Martial Law Regulations, Matial Law Orders, including Referendum Order 1984 and all other laws made between 5th July 1977 and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made` by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever." In this sub-Article we cannot read anything else than the intention to bless all these legal instruments with Constitutional legality which was obviously lacking in the laws enacted during this period. A careful and close scrutiny of this part of Article 270-A would reveal J that all the thrust of clause (1) of the Article is for giving the legal efficacy to all those legal instruments which were promulgated or passed between the fifth day of July, 1977 till the date when this Article came into force. In other words the effect of these laws cannot travel beyond the points of time indicated therein. It does not ensure the continuity of the legal instruments beyond the date when the law-making organs were restored and had started functioning in due course. Such is the view clearly brought out in the judgment of the Supreme Court in Benazir's case reported in PLD 1988 SC 416.
20. The learned counsel then turned to clause (3) of Article 270-A, which is as under:- "(3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes Into force shall continue in force until altered, replaced or amended by competent authority."
21. The contention of the learned counsel was that as the President's Order No,5 of 1984 belongs to the family of legal instruments mentioned in this Article it must hold the field and must remain operative till it is "altered, replaced or amended by the competent authority". But in the situation before us it is not a case of replacement or elimination of Order No,5 but eclipse of a sub- constitutional piece of legislation vis-a-vis the Constitutional provision. Assuming that this order is throbbing with life by the strength provided to it by sub-Article (3) of Article 270-A of the Constitution, it cannot override the Constitutional provisions. The fact remains that it does not find a place in the main body of the Constitution nor is it made a part of VIlth Schedule of the Constitution. As such it cannot rank at par with the substantive provisions of the Constitution. In support of the above, the dictum laid down by the Supreme Court in Benazir's case reported in PLD 1988 S.C.416 may aptly be quoted. The learned Chief Justice while examining the effect of Presidential Order No,20 of 1978 expressed the view that this Order could not override Article 17 of the Constitution. Before quoting the opinion of the learned Chief Justice it is better to reproduce President's Order No,20 of 1978 to indicate the strong language which was used in this Order. This Order was promulgated to effect some amendments in the Political Parties Act. Article 2 of this Order was in the following form:- "2. Effect of Order.- This Order shall have effect notwithstanding anything contained in the Constitution."
22. The learned Chief Justice at page 524 of the report while examining the effect of the Order observed as under:- "President's Order No,20 of 1978 by its status as being an ordinary law cannot give any protection to the impugned provisions of the Political Parties Act as against Fundamental Rights 17(2). Therefore, even if it co-exists with the Political Parties Act, 1962, it is of no effect although it remains on the statute book."
23. Zafar Mirza, J., at page 601 of the same judgment published in. PLD 1988 made the following observations:- "On a parity of reasoning, it becomes manifest that so far as continuance in force of the existing laws was concerned, the special provisions of clause (3) would govern their future operation and in the absence of the aforesaid words as they occur in clause (1) it follows that the laws continued in force would have effect as sub-Constitutional legislation subject to the Constitution. This intention is also manifested by the fact that such laws were allowed to be repealed in exercise of the legislative power under the Constitution. Tice argument that in Article 280(1) of the Interim Constitution the use of the words "subject to this Constitution" had the effect of expressly making the continuance of the existing laws subservient to the Constitution, but such words have not been used in clause (3) of Article 270-A, therefore, the conclusive declaration clause in clause (1) of the Article would govern the future operation of these laws, does not advance the case of the respondent for the reasons already stated."
' To sum up, as the President's Order No,5 has neither been specifically incorporated in the body of the Constitution nor provided a cover by Article 270-A read with Seventh Schedule of the Constitution cannot curtail the powers given to this Court by the Constitutional provisions under Chapter 3-A, which prescribed no territorial limits whereby its revisional jurisdiction could exclude the areas falling in the Tribal Areas. The parameter for exercise of powers under this Chapter is that the orders under review should have been passed by a criminal Court and they are relating to the enforcement of Hudood Laws. Both the conditions are fulfilled in this case.
' Before we part with the case it would be fair to mention another objection whick was half- heartedly raised by the learned Advocate-General, N.-W.F.P. And also pressed during his arguments by Mr. Iftikhar Hussain Chaudhry, the learned counsel for the Federal Government. It was argued that to adjudicate about the jurisdiction would amount to interpretation of the Constitution and this we cannot do on account of the bar contained in Article 203-B, sub-Article (6). This sub-Article defines the term "Law" and the "Constitution" is excluded from this definition. In our opinion the confusion has arisen because this definition is read by the learned counsel in isolation without the aid of Article 203-D, which prescribes the "powers, jurisdiction and functions of this Court". If both the provisions are read together it would be evident that the Constitution and three other categories of laws have been excluded from the definition clause with special reference to the .Exercise of powers prescribed under Article 203-D of the Constitution. In other words while this Court is competent to give declaration about repugnancy of any law to Islam it cannot do so about the group of laws excluded from the definition of law under Article 203-B (c). It does not mean that he Constitution is a sealed book and this Court cannot look up the Constitution for any purpose whatsoever; not even for the purpose of interpreting any of the Articles from 203-A to 203-J. We are doing no more than reading one of the Articles in this Chapter and interpreting the jurisdiction clause contained in this Chapter with the aid of other provisions of the Constitution. It should be remembered that every forum even a quasi-judicial forum is under the mandatory obligation to dispose of the question of jurisdiction first before embarking on M the exercise of powers for deciding a case. In our opinion by reading these two provisions together it would be evident that while this Court can examine and decide the question of repugnancy of any law or provision of law to the Injunctions cf Islam, it is prevented from giving any such declaration in respect of Constitutional provisions and laws relating to three other subjects which have been excluded from the term law in clause (c) of Article 203-B quoted above. In this connection reference may be made to the opinion of Chief Justice, Munir in Full Bench case reported in PLD 1950 Lahore 370. At page 383 of the report the learned Judge observed:- "Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction, and where the jurisdiction of such tribunal is dependent upon the existence of certain facts or circumstances, it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen."
' This objection is overruled, as misconceived.
' The appeals should be fixed for regular hearing before the Court under the rules of business for their disposal on merits.