MIR HAZAR KHAN KHOSO, C.J.---As the same points of law and facts are involved in Criminal Appeal No.37/P of 1989 L.W. Jail Criminal Appeal No.178/I of 1989, Criminal Revision No.3/P of 1993, L.W. Criminal Revision No.10/P of 1993, we intend to dispose of them by this one detailed judgment.
2. By Ordinance VII of 1979, the President of Pakistan promulgated the law "The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on 9-2-1979 and extended its operation to the entire Pakistan. Under section 20 of the Ordinance, the provisions of the Code of Criminal Procedure, 1898 were applied thereto. The jurisdiction for trial of the offence under the Ordinance was conferred upon the Court of Session; the powers of appeal wherefor were given to the Federal Shariat Court.
The section reads as under:-- "20.---(1) The provisions of the Code of Criminal Procedure, 1898, hereafter in this section referred to as the Code, shall apply mutates mutandis, in respect of cases under this Ordinance: `Provided that, if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefor, be convicted and punished for that offence: Provided further that an offence punishable under this Ordinance shall be triable by a Court of Session and not by a Magistrate authorized 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: Provided further that a trial by a Court of Session under this Ordinance shall ordinarily by held at the headquarters of the Tehsil in which the offence is alleged to have been committed.
(2) The provisions of the Code relating to the confirmation of the sentence of death shall apply, mutatis mutandis, to confirmation of sentences under this Ordinance.
(3) The provisions of section 198, section 199, section 199-A or section 199-B of the Code shall not apply to the cognizance of an offence punishable under section 15 or section 16 of this Ordinance.
(4) The provisions of subsection (3) of section 391 or section 393 of the Code shall not apply in respect of the punishment of whipping awarded under this Ordinance.
(5) The provisions of Chapter XXIX of the Code shall not apply in respect of punishments awarded under section 5 or section 6 of this Ordinance.
(6) In the Code, section 561 shall stand repealed."
Section 3 of the Ordinance had overriding effect on the other laws for the time being in force. It reads as under:-- "3. The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force:"
Vide Notification NO.S.R.0.362(1)/79, dated 23-4-1979, the President of Pakistan enforced the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 along with other Hudood Laws in the Federal Administered Tribal Areas. The Notification reads as under:-- STATES AND FRONTIER REGIONS DIVISION Islamabad, the 23rd April, 1979 S.R.O. 362(I)/79.---In pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (CMLA Order No.1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to direct that the following Ordinance shall apply to the Federally Administered Tribal Areas, namely:--
(1) The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979).
(2) The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979).
(3) The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979).
(4) The Execution of the Punishment of Whipping Ordinance, 1979 (IX of 1979).
(5) The Code of Criminal Procedure (Amendment) Ordinance, 1979 (X of 1979)."
Again on 31-5-1979, vide Notification No.127-HD(TA.III)/79-II the Governor of the North-West Frontier Province extended the operation of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and other laws to the Provincially Administered Tribal Areas of the North-West Frontier Province. The Notification reads as under:-- LAWS (CONTINUANCE IN FORCE) ORDER, 1977 (Application of Ordinances to Provincially Administered Tribal Areas of the North-West Frontier Province)
(Gazette of N.-W.F.P., Extraordinary, 31st May, 1979)
No.127-HD(TA.III)/79-II.---In pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No.1 of 1977) and in exercise of all powers enabling him in that behalf, the Governor of the North-West Frontier Province with the approval of the President, is pleased to direct that the following Ordinances shall apply to the Provincially Administered Tribal Areas of the North-West Frontier Province, namely:
(1) The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979).
(2) The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979).
(3) The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979).
(4) The Execution of the Punishment of Whipping Ordinance, 1979 (IX of 1979).
(5) The Code of Criminal Procedure (Amendment) Ordinance, 1979 (X of 1979).
3. In spite of that appellant Mst. Yasme en in Cr. Appeal No.37/P of' 1989, appellant Muhammad Zada in Criminal Appeal No.178/I of 1989 and petitioners Muhammad Riaz on behalf of Mst. Parveen Akhtar in Criminal Revision No.3/P of 1993, Parvez, Anwar Khan and Sadiq Hussain in Criminal Revision No.10/P of 1993, Sher Wali and Waqif (not filed revision) for having been involved in offences under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were tried by the authorities under the provisions of the Frontier Crimes Regulation, 1901. The abovesaid persons have challenged the jurisdiction and authority of the officers working under the provisions of FCR and contended that their trial, conviction and sentences passed by the abovesaid authorities are illegal and without jurisdiction. Hence their conviction and sentences be set aside and they be tried for the offence by the Court of Session under the provisions of the Code of Criminal Procedure.
4. We have heard the learned counsel for the appellants/petitioners and the learned Advocate- General, N.-W.F.P. It may be pertinent to observe that the same question regarding trial of cases under the provisions of the Enforcement of Hudood Ordinance, 1979 was mooted before a Division Bench of this Court who came to the conclusions that (i) the provisions of the Prohibition (Enforcement of Hadd) Order, 1979 were extended and applied to the Federally Administered Tribal Areas; (ii) the Order has overriding effect on any other law for the time being in force including the Frontier Crimes Regulation; (iii) the trial of the cases was to be conducted under the Criminal Procedure Code but not by the authorities under the Frontier Crimes Regulation. (Said Amir v. The State, reported in PLD 1990 FSC 26). Paragraphs 2, 3, 4 and 5 of the same are reproduced as under:- - "2. Atique-ur-Rehman Qazi, Advocate represented the petitioner, Mian Muhammad Ajmal, Additional Advocate-General, appeared for the State and Mr. Saeed Baig, Senior Advocate, assisted this Court as juris-consult (amicus curiae). After hearing the learned counsel for the parties and going through the record, we have found that the Prohibition (Enforcement of Hadd)
Order, 1979 was promulgated as President's Order 4 of 1979 and it does not come within the purview and definition of Act of Parliament that it shall require direction of the President for its application to the Federally Administered Tribal Area as envisaged in Article 247(3) of the Constitution of the Islamic Republic of Pakistan, 1973. By its Article 1(2), the President's Order 4 of 1979, has been extended in application to the whole of Pakistan and Article 1(2) of the Constitution has described the territories of Pakistan to comprise of including the Federally Administered Tribal Area. It thus, comes to that the Prohibition (Enforcement of Hadd) Order, 1979, stands extended and applied to Federally Administered Tribal Area.
3.Under its Article 29, the President's Order 4 of 1979 has been given overriding effect to any other law for the time being in force in the country and any other law for the time being in force shall also include the Frontier Crimes Regulation i.e. The FCR in force in the Federally Administered Tribal Area.
Under Article 27 of the Order the provisions of the Code of Criminal Procedure, 1898, have been made applicable, mutatis mutandis, in respect of cases under the Order. The second proviso to clause (1) of Article 27 provides that an appeal from the order under Article 8 or an Order under any other provision of this Order imposing a sentence of imprisonment exceeding two years shall lie to the Federal Shariat Court. Thus in the case there was to lie an appeal against the conviction and sentence of six years' imprisonment imposed on the petitioner in the Federal Shariat Court and not to Commissioner FCR. But the petitioner has exhausted his remedy by way of revision before a wrong forum and has filed his criminal revision in this Court which it treated as appeal would be time-barred. However, as far as entertainment of criminal revision is concerned, there have been vested exclusive powers and jurisdiction in the Federal Shariat Court under Article 203-DD of the Constitution that on examination of the record of any case decided by any criminal Court under Hudood Laws an order passed by such Court if found not correct, legal or proper, the Federal Shariat Court may pass a proper order in exercise of revisional and other jurisdiction.
4. Consequently, there emerges out the correct legal position that the Prohibition Order applies to Federally Administered Tribal Area; it overrides the provisions of FCR in Prohibition cases; the trial of the Prohibition cases shall be conducted-under the Criminal Procedure Code; an appeal against the conviction and sentence shall lie to the Federal Shariat Court and not Commissioner FCR and that there has been conferred exclusive revisional and other jurisdiction on the Federal Shariat Court in Hudood cases by the Constitution.
5. In view of the above, we would accept this revision petition, set aside the judgments of respondents Nos.2 and 3 and remand the case to respondent No.3 with direction to try the case under the Code of Criminal Procedure after constituting himself as a Court of Session. A request for bail was made before us but we direct to make such application in trial Court which shall be disposed of on merits."
By Notification No.5.R.O. 362(1)/79, dated 23-4-1979, the President of Pakistan had enforced the provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the Federally Administered Tribal Areas. Vide Notification No. 127-HD(TA.III)/79-II, dated 31-5-1979, the Governor of N.-W.F.P. Had enforced the provisions of the abovesaid Ordinance in the Provincially Administered Tribal Areas. Hence the abovesaid Ordinance stands extended and apply to the Federally Administered Tribal Areas and Provincially Administered Tribal Areas of the N.-W.F.P. Besides section 3 of the Ordinance overrides the operation of other laws. Resultantly the provisions of the Code of Criminal Procedure apply there. It may be further observed that the President of Pakistan and the Governor of N.-W.F.P. By the abovesaid Notifications had enforced the provisions of the Code of Criminal Procedure (Amendment) Ordinance, 1979, whereby the forum provided for trial of offence was a Court of Session, the appeal wherefrom lies to the Federal Shariat Court. The learned State Counsel rightly concedes to such proposition. Hence there is no ambiguity so far the forum for the proceedings of the offence under the Zina Ordinance is concerned. Indeed such cases are triable by a Court of Session, appeal and revision lie to the Federal Shariat Court. However, in the instant cases, the conviction and sentences of the appellants/petitioners were recorded by the authorities under the Frontier Crimes Regulation and revision petitions heard and decided by the Commissioner.
5. In case of Sajjad Hussain and two others v. The State reported in PLD 1989 FSC 50, a Full Court of the Federal Shariat Court came to the conclusion that under Article 203-DD of the Constitution of Pakistan, 1973, Federal Shariat Court is competent to examine the orders passed by criminal Courts in respect of enforcement of Hudood Laws. The relevant proposition has been discussed in paragraphs 12, 13, 14, 15, 16, 17 and 18 of the judgment. The same are reproduced below for ready reference:-- "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.O. 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 hierarchy. 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 Qur'an 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 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 the law.'
(15) In the above-quoted Article the Court has powers to examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood. Even the word `Pakistan' is conspicuously absent in this Article. Indeed no territorial limits can be spelt out by bare reading of this Article.
(16) This revisional power has however been circumscribed by two conditions:
(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 a better or inferior form of trial in those conditions in which such decisions 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 it to say that from any definition the forum qualifies to be termed as a Criminal Court because the Additional District. Magistrate cannot be anything other than a Court of a Magistrate. This Magistrate has scrutinized 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 saving that this decision, though rendered try adopting a different procedure than in a Criminal Court, qualifies to be called a decision of a Court. Using the word `Additional District Magistrate' for the author of the order leaves no morn for doubt that the order falls within the provisions of Article 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 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."
Obviously this Court as such has jurisdiction to hear the appeals and revision petitions. Even otherwise such jurisdiction of this Court was not disputed by the learned State Counsel. Besides the decision of the Federal Shariat Court in case reported in PLD 1990 FSC 26 was challenged before the Supreme Court of Pakistan. The Court upheld the abovesaid decision in the words as under:--- "(9) The other provision invoked by the learned Additional Advocate-- General namely clause (7) of Article 247 of the Constitution is an applicable to the Federal Shariat Court because it expressly mentions the Supreme Court and the High Court and excludes the Federal Shariat Court. What is excluded by express words cannot be included on any principle of interpretation.
(10) In the circumstances, we find that the Federal Shariat Court rightly decided the preliminary legal point with regard to its jurisdiction over the Federally Administered Tribal Areas Hence, Criminal Appeal No. 22(S) of 1989 is dismissed."
6. In such view of the facts, we have no hesitation in arriving at the conclusions that the. Enactment of the Offence of Zina. (Enforcement of Hudood) Ordinance, 1979 is extended and applies to the Federally Administered Tribal Areas and the Provincially Administered Tribal Areas of the N.-W.F.P.
The forum provided for the trial of the cases is the Court of Session but not the authorities working under the Frontier Crimes Regulation. We are, therefore, inclined to set aside the conviction and sentences of appellant Mst. Yasmeen and Muhammad Zada in Cr. Appeal No.37/P of 1989 and Jail Criminal Appeal No.178/I of 1989 and petitioners Mst. Parveen Akhtar (Cr. Rev. No.3/P of 1993), Pervez, Sadiq Hussain, Anwar Khan (Cr. Rev. No.10/P of 1993), Sher Wali and Waqif (not filed revision petition). The cases of the abovesaid appellants/petitioners are remanded to the concerned Political Agent/Sessions Judge for trial under the law. They are directed to appear before the trial Court on 15-11-1993. In Criminal Appeals Nos.37/P of 1989 and 178/1 of 1989, the appellants (Mst.
Yasmeen and Muhammad Zada) were allowed bail. They are directed to appear before the trial Court. In Criminal Revision No3/P of 1993 Mst. Parveen Akhtar was allowed bail by this Court. We are also inclined to allow bail to Pervez, Sadiq Hussain, Anwar Khan, Sher Wali and Waqif subject to their furnishing surety to the tune of Rs.50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. Mst. Parveen Akhtar is present on bail. She is directed to appear before the Political Agent/Sessions Judge on 15-11-1993.