' JUSTICE AJMAL MIAN (MEMBER).---This is an appeal with the leave of this Court against the judgment dated 14-6-1990 passed by a learned Single Judge of the Federal Shariat Court, whereby he purported to exercise his revisional jurisdiction against the order dated 11-4-1990 passed by a learned Single Judge of the Peshawar High Court rejecting the bail application of the respondent, who was found in possession of 30 packets of heroin weighing 130 grams. Leave to appeal was granted to consider, whether the Federal Shariat Court has jurisdiction under Article 203-DD of the Constitution of Islamic Republic of Pakistan hereinafter referred to as the Constitution, to revise the order of the High Court in exercise of its revisional jurisdiction.
2. The respondent has been served with the notice of hearing for today, but has not turned up. We have heard Mr. M. Sardar Khan, learned Advocate-General, N.-W. F. P., in support of the above appeal. He has invited our attention to a recerit judgment of a Full Bench of the Federal Shariat Court in Criminal Revision Petition No, 5-K of 1991 (Syed Maskin Shah v. The State and another) rendered in November or December, 1992, wherein it has been held that the Federal Shariat Court does not have revisional jurisdiction under Article 203-DD of the Constitution in respect of an order passed by a High Court. We are inclined to take the same view.
3. It may be pertinent to reproduce Article 203-DD of the Constitution, which was incorporated by President Order No, 5 of 1982, which reads 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. A perusal of the above Article indicates that under clause (1) thereof, the Federal Shariat Court has been empowered to 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. It also empowers the Federal Shariat Court that 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.
' It may also be noticed that clause (2) of the above Article empowers the Federal Shariat Court to pass such order as it may deem fit and even to enhance the sentence in any case in which the record has been sent for under above clause (1). However, proviso to the above clause (2) imposes a clog on the power of the Federal Shariat Court by providing 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 the above Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence.
' It may also be pointed out that clause (3) clarifies that the Federal Shariat Court shall have such other jurisdiction as may be conferred on it by or under any law.
5. We may observe that in order to attract above clause (1), there are three requirements:
(i) the record which may be called, must pertain to any decided case;
(ii) the case should be decided by any Criminal Court, and
(iii) the decision should be under any law relating to the enforcement of Hudood.
6. Even if we were to hold that an order passed by a High Court granting or refusing bail to an accused person comes within the compass of the expression "any case decided", the High Court is not covered by the term "Criminal Court" used under the above clause (1) of Article 203-DD of the Constitution. It refers to a Magistrate or a Sessions Court. The High Court, being a superior Court created under Article 192 of the Constitution, cannot be equated with a Criminal Court. Secondly, when a High Court declines to grant bail under section 497 or section 498, Cr. P. C, it does not exercise jurisdiction under any law relating to the enforcement of Hudood.
7. We may also observe that a revisional jurisdiction of the nature is exercisable in respect of the Criminal Courts, which can be considered subordinate to the Federal Shariat Court. The High Court cannot, in any way, be considered subordinate to the Federal Shariat Court for the above purpose.
8. Mr. M. Sardar Khan, learned Advocate-General, N.-W.F.P., besides referring the above unreported judgment, has relied upon the following cases:--
(i) Liaqat Ali and 2 others v. The State and another (PLD 1989 Karachi 481); ' in which one of us (Ajmal Mian, J.) as the Chief Justice of Sindh High Court, while construing Articles 203-G and 203-DD of the Constitution, has held that the High Court's jurisdiction under section 561-A Cr. P. C. Remained intact as the Federal Shariat Court has not been conferred jurisdiction akin to that section 561-A, Cr. P. C.
(ii) Amir Shah v. The State (PLD 1992 Lahore 455); ' In the above case, the facts were that a petition under section 435 read with section 439, Cr. P. C.
Was filed in the Lahore High Court against the order of the learned Sessions Judge, Pakpattan, made under section 514, Cr. P. C. Directing the petitioner to pay the penalty of his bond, namely, Rs, 20,000. The petitioner stood surety for one Hassan who was accused of offence under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. When the above petition came up for hearing before a learned Single Judge of the Lahore High Court, the learned Assistant Advocate General referred to the case of Khurshid v. The State (1990 PCr.LJ 409) and contended that by virtue of Article 203-DD of the Constitution, the revisional jurisdiction of the High Court stood ousted. The learned Single Judge, after referring to the case-law, held that since the impuged order before him was not passed under the provisions of Hudood Laws, the High Court's revisional jurisdiction was not ousted. He dissented from the Karachi view taken in Khurshid v. The State (supra). Reliance was placed on the case of Haji Muhammad Aslam Khan v. Muhammad Aslam and another (1990 SCMR 211) and the case of Malik Nazar Ellahi and another v. The State (1990 SCMR 1092).
' In the former case, the High Court under section 561-A, Cr.P.C. Quashed the proceedings initiated under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which order was maintained by this Court.
' Whereas, in the latter case, the petitioner who was a surety was ordered to pay the, penalty of his bond by the Court of Session furnished by him in a case under the Prohibition (Enforcement of Hadd) Order, 1979. On a revision petition under section 439, Cr.P.C., the High Court had reduced the amount of penalty. This Court declined a petition for leave to appeal against the above judgment of the High Court.
9. We reiterate the views taken in the above two judgments of this Court which directly support the view which we are inclined to take. Since the High Court was not covered by the expression "Criminal Court" used in above Article 203-DD of the Constitution and as the order of refusal of bail by the High Court was not an order which can be said to be an order for the enforcement of Hudood as pointed out hereinabove, revisional jurisdication of the Federal Shariat Court under Article 203-DD was not attracted to in the present case.
10. The appeal is, therefore, allowed and the impugned judgment is set aside.