Since common question of law is involved in both these revision applications filed under section 435/439, Cr.P.C. They are being disposed of by this consolidated judgment.
2. Applicant Khursheed (Criminal Revision No, 29 of 1989) stood surety for accused Muhammad Shah involved in a case under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, pending in the Court of Additional Sessions Judge (Hudood) (West) Karachi.
Accused Muhammad Shah absconded and consequently the bail bond of applicant Khursheed was forfeited and he was directed to deposit the entire amount of bond, viz. Rs,15,000. It is against this order that applicant Khursheed filed Criminal Revision No, 29 of 1989.
3. Applicant Mir Iqbal Ali (Criminal Revision No, 45 of 1989) stood surety for accused Sarfraz Anjum and Manzoor Hussain in the sum of Rs,15,000 each in a case pending against them under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, in the Court of Additional Sessions Judge (Hudood) (East) Karachi. Both the accused jumped bail and consequently the bail bond furnished by applicant Mir Iqbal Ali was forfeited. He was, however, directed to deposit a sum of Rs,10,000 for each of the accused. This order dated 12-2-1989 is the subject-matter of Criminal Revision No, 45 of 1989.
4. The office had raised an objection about the competency of revision applications before this Court which was overruled at the time of admission with the following orders:-- "It is contended that the revisional jurisdiction conferred upon the Federal Shariat Court by Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973, appears to be different and much more circumscribed than the jurisdiction conferred under section 435/439, Cr.P.C. On this Court. It is further contended that despite appellate and revisional jurisdiction conferred on Federal Shariat Court, the High Court can still exercise its revisional as well as inherent jurisdiction in relation to matters incidental to a proceeding in Hudood Laws, like the one under consideration. The learned A.A.-G. While referring the cases reported as Muhammad Ilyas v. The State 1986 P Cr. L J 344 and Muhammad Hanif and others v. Mst. Shama Mai 1986 P Cr. L J 746, has submitted that the point under consideration requires further examination and the case is fit for admission. The office objection is, therefore, overruled at this stage and the Criminal Revision is admitted to regular hearing."
5. I have heard learned counsel for the respective applicants and Mr. K.M. Nadeem, learned A.A.-G.
For State.
6. Before examining the case-law available on this subject, it may be profitable to reproduce Article 203-DD of Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred as Constitution), which is as follows:- "203-DD.-- (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 any law."
(4) Section 435, Cr.P.C. Which confers revisional jurisdiction upon this Court is analogous to Article 203-DD of the Constitution, except to the extent that under section 435, Cr.P.C. The Court is empowered to call for and examine the record of any proceedings, while under Artilce 203-DD of the Constitution the Federal Shariat Court can examine the record of any 'case decided'. While examining this point in the case reported as The State v. Anayatullah and another PLD 1983 FSC 244, the Federal Shariat Court observed:-- "The words 'case decided' do not mean all proceedings but only decisions relating to some matter, in controversy affecting the rights of the parties."
7. It, therefore, follows that all decisions made by any Criminal Court under any law relating to the Enforcement of Hudood in respect of some matter, in controversy affecting the rights of the parties, are revisable by the Federal Shariat Court under Article 203-DD of the Constitution and not by this Court under section 435/439, Cr.P.C.
8. The above view gets support from the cases reported as Khan Badshah v. The State 1985 P Cr. L J 2609; Jaffar Khan and another v. The State 1985 PCr.LJ 2611; Muhammad Ilyas v. The State 1986 P Cr.
L J 344; Muhammad Hanif and others v. Mst. Shama Mai 1986 P Cr. L J 746 and Liaquat Ali and 2 others v. The State and another PLD 1989 Kar.
481. In the second cited authority a Division Bench of the High Court of Baluchistan observed as follows:-- "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 the jurisdiction of the Court i,e, Federal Shariat Court. It is evident that the proper remedy for the petitioner is to file revision before the Federal Shariat Court."
10. The scope and application of Articles 203-DD and 203-G of the Constitution was examined elaborately in the last cited case, viz. Liaquat Ali and 2 others v. The State and another PLD 1989 Kar. 481, and it was held:-- "There cannot be any cavil with the proposition that the High Court and even the Supreme Court will not have jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court except that the right of appeal is provided to the Supreme Court under Article 203-F but the above ouster of jurisdiction is pre-conditioned by the fact that the Federal Shariat Court should have jurisdiction in respect of the matter which is brought before a High Court. As pointed out hereinabove the Federal Shariat Court has revisional jurisdiction under Article 203-DD and, therefore, it must follow that the High Court will not have revisional jurisdiction..."
11. On 10-2-1979, the President of Pakistan promulgated the following Ordinances/Order, thereby amending the existing laws relating to certain offences affectig movable property of the people and moral and social order of the society, so as to bring it in conformity with Holy Qur'an and Sunnah:-
(i) The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979).
(ii) The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979).
(iii) The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979).
(iv) The Prohibition (Enforcement of Hadd) Order, 1979 (Order No,4 of 1979).
12. The common feature of these laws is that all offences falling under them are tried by Magistrate/Sessions Judge according to the procedure as laid down in the Code of Criminal Procedure, 1898, as amended.
13. The words 'under any law relating to the enforcement of Hudood' used in clause (1) of Article 203-DD of the Constitution, therefore, refer to all the above four laws. Again the words 'case decided' used in clause (1) are wide enough to include interlocutory orders also. On the face of the above legal position both the impugned orders fall within the scope of words 'case decided' C and are amenable to revision under Article 203-DD of the Constitution before the Federal Shariat Court.
14. The special revisional jurisdiction is conferred upon the Federal Shariat Court after carving it out from the general jurisdiction of this Court through a Constitutional amendment (P.O. 5 of 1982).
Article 203-G expressly bars the jurisdiction of this Court in respect of all decisions falling within the purview of the words 'case decided' used in clause (1) of Artilce 203-DD of the Constitution. The orders which are passed in exercise of incidental or ancillary powers to the main jurisdiction conferred by Hudood laws are also subject to revision to Federal Shariat Court under Article 203-DD of the Constitution.
15. On all the above scores the present revision applications are not competent before this Court.
The same may be returned to applicants for presentation before the Court having jurisdiction. The orders by which stay was granted by this Court are hereby recalled.