This petition under section 435 read with section 439, Cr.P.C. Comes from the orders of the learned Sessions Judge, Pakpattan, made under section 514, Cr.P.C. Directing the petitioner to pay the penalty of his bond, viz. Rs.20,0(X).
2. The petitioner stood surety for one Hassan, who was accused of offences against sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The accused person absented himself and the learned Sessions Judge called upon the petitioner to pay the penalty of his bond or to show cause why it should not be paid.
3. - When the petition came up for hearing before me on 19-1-1992, learned Assistant Advocate- General referred me to Khurshid v. The State 1990 PCr.LJ 409. To contend that, by Article 203-DD of the Constitution, this Court's jurisdiction to bear this revision petition stands ousted. As this question does not appear to have been raised inany other case, I asked the learned Additional Advocate- General to assist me. I have heard the petitioner's counsel as also the learned Additional Advocate-General and the learned Assistant Advocate-General.
4. The Offence of Zina_ (Enforcement of Hudood) Ordinance, 1979, and three other enactment, namely, the Offences Against Property (Enforcement of Hudood) Ordinance; 1979, the I Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, and the Prohibition (Enforcement of Hadd) Order, 1979, came into force on 10-2-197 9, for the enforcement of Islamic Hudood in Pakistan. The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 modified "the existing law relating to Zina so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah". The expression 'Hadd' is defined in section 2, clause (b) to mean "punishment ordained by the Holy Quran or Sunnah." The Ordinance enumerates, in section 5, the offences which are, liable to Hadd.
Section 20 of the Offence ---of Zina (Enforcement of Hudood) Ordinance, 197.9 (hereinafter to be referred to-- as the Ordinance) makes the provisions of the Code of Criminal Procedure, 1898, applicable. Mutatis mutandis, - in respect of cases under the , Ordinance; ,that section also provides that "an. Offence. Punishable under this Ordinance shall , be tribal by a Court of Session and not by a Magistrate authorised under section 30 of the -said Code and an appeal from an order of the Court of, Session shall lie to the Federal Shariat Court". It enacts further by its subsection (2) that "the provisions of the,, Code relating to confirmation of the sentence - of death shall apply, mutatis mutandis, to confirmation of sentences under this Ordinance". Subsections (3) 'and (4) of section 20 expressly mention sections 198, 199, 199-A9 199-B, 391 and 393 .-of the Code of Criminal Procedure to say' that those sections shall not apply to offences tried under the Ordinance.
5. Though the Ordinance makes provision for appeals against the- orders of the Court of Session, it makes no provision for revision. Article 203-DD of the -Constitution however, gives the power of revision to the Federal Shariat Court. It reads: "(1)The Court may call 'for and examine 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."
Article 203-G of the Constitution is the ouster clause; it reads: "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."
6. The question, therefore, is whether an order under section 514, Cr.P.C. Is a case decided "by any Criminal Court under any law relating to the enforcement of -Hudood" within the meaning of Article 203-DD of the Constitution. Learned counsel for the petitioner and the learned Additional Advocate-General were of the view that an order under section 514, Cr.P.C. Is not such a case.
7..In Khurshid, v. The State, 'refer' ' 'ed to above, also a case under section 514, Cr.P'.C., a learned Judge of the Karachi High Court held:-- "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' and are amenable to revision under Article 203-DD of the Constitution before the Federal Shariat Court."
In so holding, the learned Judge referred to Jaffar Khan and another v. The State (1985 P Cr.LJ 2611) where a Division Bench of, the Balochistan High Court had held: '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."
Reference in that behalf was also made to the following observations in Liaqat All and 2 others v.
The State and another PLD 1989 Kar. 481:-- "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 preconditioned 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 here in above 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."
I respectfully agree with the observations of the learned Judge in Khurshid v. The State that the words "under any law relating to the enforcement of Hudood" used in clause (1) of Article 203-DD of the Constitution refer. To all the four laws mentioned above, namely the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and the Prohibition (Enforcement of Hadd) Order, 1979. But is an order under section 514, Cr.P.C. Made during the trial of offences under these laws an order under these laws? The petitioner was not an accused of any offence under these laws. In other words, he had not done any act contrary to the provisions of the Ordinance or any other Hudood Law-, nor has he been punished for any such Act. He has been punished under section 514, Cr.P.C., and that certainly is not a "law relating to the enforcement of Hudood".
8. Take the case of an order of bail under sections 497 and 498 of the Code of Criminal Procedure.
Under ' section 498 of the Code of Criminal Procedure, the power vesting in the High Court and the Court of Session is a concurrent power to direct that any person be admitted to bail and it is settled law that when a Court of Session has exercised its power under that section and made an order, the High Court has power to modify or set aside that order and also that in doing so, the High Court acts as a revisional Court. As was held in Muhammad Ayyub v. (1) Muhammad Yaqub and (2)'Thc State PLD 1966 Supreme Court 1003:-- "Section 498 occupies the position of a supplementary provision in so far as it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and the police and enables these Courts to exercise the power of anticipatory bail, in suitable cases."
9. It is beyond question that when a person applies for bail to a subordinate Court and that Court accepts or rejects the application, that is a ..Case decided" in the sense in which that expression has been used in section 115, C.P.C. And Article 28-1313 of the Constitution. But so far as I know, it has never been doubted that in bail matters this -Court has the jurisdiction under section 498, Cr.P.C.
And that Article 203-DD of there Constitution has not affected it. The reason why an order under section 498,1 Cr.P.C. Is not within Article 203-DD obviously is that it is not a case decided "by any Criminal Court under any law relating to the enforcement of Hudood". If that be so, then I can see no reason why an order under section 514, Cr.P.C. Should be regarded as a case decided "by any Criminal Court under any law D relating to the enforcement of Hudood".
10. It has been seen that under section 20 of the Ordinance, "an offence punishable under this Ordinance shall be tribal by a Court of Session and not by a Magistrate authorised under section 30, of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court". It means that the appeal to the Federal Shariat Court, as provided by section 20 is from an order in respect "of an offence punishable under this Ordinance". Thus, while the appellate powers of the Federal Shariat Court are limited to the orders in respect of offences against Hudood laws, the effect of the view taken in the Karachi case would be to vest the Federal Shariat Court with much wider revisional powers, extending even to orders that are not in respect of offences against Hudood laws. This, in my opinion, could not have been intended. These considerations, in my opinion, compel the conclusion that the revisional jurisdiction of this Court, as regards order under section 514 Cr.P.C., does not stand excluded by Article 203-DD of the Constitution.
11. In reaching this conclusion, I have been guided by the following well --settled principles of interpretation. Where a question of the interpretation of a provision seeking to oust the jurisdiction of superior Courts arises, the Court having the right to interpret the law will decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Courts has been ousted keeping in mind the principles consistently affirmed by all Courts that provisions seeking to oust the jurisdiction of superior Courts are to be construed stiltedly with a pronounced leaning against ouster. (See The State v.' Ziaur Rehman PLD 1973 SC 49, 80). It is now well established that there is a strong presumption that the jurisdiction of superior Court can only be taken away by express words, particularly where the result of such an interpretation would be to disturb an established state of the law or to create manifest injustice or hardship or to interfere with vested rights. (See Muhammad Ismail v. The State PLD 1969 SC 241).
12. Article 203-G of the Constitution bars the jurisdiction of this Court and the Supreme Court to entertain any proceeding or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of Federal Shariat Court. As the view I take of Article 203-DD of the Constitution is that an order under section 514, Cr.P.C. Is not a case decided by a Criminal Court .Under any law relating to the enforcement of Hudood", the bar in Article 203--G is obviously not attracted.
13. Some support is afforded to the above view by two cases viz. Haji Muhammad Aslant Khan v.
Muhammad Aslam and another 1990 SCM R 211 and Malik Nazar Elahi and another v. The State 1990 SCM R 1092. In the first, a Case Under section 16 of the Offence of Zina, (Enforcement of Hudood)
Ordinance-, IV79 was quashed by thus, High Court under section 561 -A, Cr.P.C and the contention was that the High Court had no power to do so in view of Article 203-DD of the Constitution. The contention was , repealed Malik Nazar Elahi case was a case inWhich a surety like the petitioner here in a case under the Prohibition (Enforcement of Hadd) Order, 1979 was ordered to pay the penalty of his bond by the Court of Session. On a revision petition under section 439, Cr.P.C. The High Court had reduced the amount of penalty and the Supreme Court had upheld the order of the High Court.
14. It remains to consider the petitioner's case on its merits. He is not shown to be related .To the accused; nor is there any evidence that he stood in any way to gain by his abscondence. I think, therefore, that it will serve the ends of justice if the amount of penalty is seduced to Rs.2,000 only.
With this modification, the revision petition is dismissed.