' ABAID ULLAH KHAN, J.---The following questions await the examination and decision of this Bench:---
(1) Whether order passed on a bail application by a criminal Court is a `case decided' and can be interfered with by Federal Shariat Court under Article 203-DD of the Constitution?
(2) Whether an order passed by a High Court on a bail application in Hudood cases can be interfered with by Federal Shariat Court in its revisional jurisdiction, in suo mote or on an application of an aggrieved party under Article 203-DD of the Constitution?
2. It may be advantageous to describe in brief the events and circumstances culminating in the filing of the Revision Petitions (Nos.5-K of 1991 and 44-I of 1991) giving rise to the questions coming up for consideration before this Bench. In Criminal Revision Petition No,5-K of 1991, Mst. Shamim Akhtar, respondent 2, was involved in a case of alleged commission of Zina at the instance of her father, Syed Maskeen Shah, the petitioner. Mst. Shamim Akhtar's bail petition was twice rejected by the Court of Sessions, Karachi South. However, the Hon'ble High Court of Sindh granted her bail by its order of the. 25th February, 1991, whose validity is being impugned before this Court in its revisional jurisdiction. The petitioner seeks cancellation of the bail allowed to respondent 2 by the Honourable High Court.
3. In Criminal Revision Petition No,44-I of 1991, a case of alleged abduction of one Mst. Rahmat Bibi was registered against Abdur Rahman, respondent on the report of Hashim Khan, the petitioner, who claims himself to be the husband of Mst. Rahmat Bibi, at Police Station Margalla, Islamabad, on the 1st September, 1990. Respondent's bail application was rejected by the learned Additional Sessions Judge, Islamabad. Nevertheless, the Honourable Lahore High Court, Rawalpindi Bench, ordered his release on bail on the 18th August, 1991. The petitioner has invoked the revisional jurisdiction of the Court under Article 203-DD of the Constitution for getting the order of the High Court dated the 18th August, 1991, granting bail to respondent 1 set at naught and for consequential cancellation of bail.
4. When Criminal Revision Petition No,5-K of 1991, came up for hearing before the Honourable Chief Justice on the 6th April, 1991, he directed that the petition be heard by a Full Bench to consider the moot points. The same problems need resolution in Criminal Revision Petition No,444 of 1991.
5. The legal provisions germane to the discussion may presently be noticed. Article 203-DD of the Constitution of the Islamic Republic of Pakistan, which confers revisional jurisdiction upon the Federal Shariat Court, runs as under:---
(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 Hadood 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 any law.
' The above provision of the Constitution seems to be a sort of amalgam of the relevant provisions of section 115 of the Code of Civil Procedure, which relates to the revisional jurisdiction of the High Court and the District Court in civil matters and of sections 435 and 439 of the Code of Criminal Procedure dealing with the revisional jurisdiction of the High Court, Sessions Judge, District Magistrate and Sub-Divisional Magistrate in criminal matters. Section 115 of the Code of Civil Procedure is reproduced below:---
(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears---
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
' Subordinate to such District Court in which no appeal lies and the amount or value of the subject- matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.
(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court.
' The relevant portions of sections 435 and 439 of the Code of Criminal Procedure are as under,--- 435.---(1) The High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate empowered by the Provincial Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that execution of any sentence be suspended and, if the accused is in confinement, that he is released on bail or on his own bond pending the examination of the record.
439.---(1) In the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed than might have been inflicted for such offence by a Magistrate of the First Class.
(4) Nothing in this section shall be deemed to authorize a High Court:
(a) to convert a finding of acquittal into one of conviction; or
(b) to entertain any proceedirgs in revision with respect to an order made by the Sessions Judge under section 439-A.
6. While dealing with the scope and extent of the revisional powers of the Federal Shariat Court arguments by the contending parties mainly centred' around two points: The import and meaning of the phrase 'case decided' and the particularization of criminal Courts whose orders were to be amenable to the revisional jurisdiction. The words 'case decided' occur in section 115 of the Code of Civil Procedure and have repeatedly come for interpretation under the scrutiny of the superior Courts. The consensus now prevailing is that the case decided includes an interlocutory order and is not restricted to the final adjudication of the whole case. It is held to be of very wide import and means any state of facts juridically considered. This meaning is large enough to include a decision of any substantial question in controversy between the parties affecting their rights even though such order is passed in the course of trial of a case. An interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order was held to be a case decided within the meaning of section 115 of the Code of Civil Procedure in Bibi Gurdevi v. Chaudhry Muhammad Bakhsh (AIR (30) 1943 Lahore 65). The majority judgment in S. Zafar Ahmad v. Abdul Khaliq PLD 1964 (W.P.) Kar. 149; equated the case decided with a decision in respect of any state of facts judicially considered by a Court subordinate to the High Court. This view was approved by the Supreme Court of Pakistan in Bashir Ahmad Khan v. Qaiser Ali Khan PLD 1973 SC 507. This Court in The State v. Inayat Ullah PLD 1983 FSC 244, endorsed the above interpretation of the words 'case decided'. In The State v. Anwar Khattak PLD 1990 FSC 62, this Court took the view that grant of bail in a criminal case did involve judicial application of mind and treated such an order to be case decided for the purpose of calling forth the exercise of its revisional jurisdiction. So the expression case decided would not mean, as was contended by the learned Standing Counsel case 'finally decided' but would embrace even interlocutory orders relating to some matter in controversy affecting the rights of the parties and in respect of any state of facts judicially considered. Judged in the light of the aforesaid exposition of law the impugned orders would fall within the category of case decided.
7. There is no quarrel with the proposition, and the authorities abound, that it is the Federal Shariat Court and not the High Court which can exercise revisional jurisdiction in matter of cases decided by criminal Courts under any law relating to the enforcement of Hudood under Article 203-DD of the Constitution. The learned counsel for the petitioner cited Iqbal Hussain v. The State PLD 1985 Lah. 65, Chaudhry Khalid Rashid v. The State PLD 1986 FSC 286, Darya Khan v. The State PLD 1989 Kar. 115 and Khursheed v. The State 1990 PCr.LJ 409, in support of the proposition that the revisional jurisdiction to examine the record of any case decided by any criminal Court under any law relating to the Enforcement of Hudood vests in the Federal Shariat Court to the exclusion of the High Court. The learned counsel referred to the case of Mst. Iqbal Bibi v. State 1990 PCr.LJ 1831, decided by a Single Bench of this Court, wherein this Court exercised revisional jurisdiction to allow bail to Mst. Iqbal Bibi who had been accused of possessing 130 grams of heroin and whose bail, petitions had been successively rejected by the Magistrate, Sessions Judge and the High Court.
After failing to get the requisite relief from these Courts she invoked the revisional jurisdiction of this Court under Article 203-DD. No question touching competency of this Court to exercise revisional jurisdiction in face of the order passed by the High Court was ever raised before this Court in that case.
8. The Court whose order is to be amenable to the revisional jurisdiction of this Court is, as envisaged by Article 203-DD of the Constitution, to be 'any criminal Court'. The learned counsel for the petitioners, referring to section 6 of the Code of Criminal Procedure, setting out classes of criminal Courts, contended that the phrase 'any criminal Court' appearing in Article 203-DD would encompass High Court, Court of Sessions and Court of Magistrate. However, the learned Standing Counsel tried to explain the expression 'any criminal Court' occurring in Article 203-DD, with reference to context, as any Criminal Court handling cases relating to the enforcement of Hudood Laws. As is accepted in legal parlance Hudood laws imply the following:---
(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); and
(4) The Prohibition (Enforcement of Hadd) Order, 1979 (President's Order No,4 of 1979).
' He drew our attention to the fact that normally the Courts of Session and of Magistrates dealt with the cases under the above laws and it were their decisions which would be subject of revision by this Court. He maintained that the High Court enjoyed revisional powers in matters other than those relating to the enforcement of Hudood Laws on a wider scale touching any proceeding before any inferior criminal Court which of course included the Court of Session and the Court of Magistrate. He was joined by the learned Advocate-General of Balochistan in the argument that the High Court being a Court of co-ordinate jurisdiction with this Court it would be against the norms of propriety to put under scrutiny the order of the High Court in revision. They ontended that the concept of revision postulated that the order of a subordinate entity was placed under review before an authority higher in hierarchy. They argued that the High Court being not subordinate to this Court it would not be permissible for this Court to subject the order of the High Court to examination.
9. On the criminal side the appellate and revisional jurisdiction of this Court almost runs parallel to that of the High Court. Both the Courts hear appeals and revision petitions in criminal cases against the orders of the Courts of Sessions and Magistrates, the difference being that the jurisdiction of this Court appertains to cases decided under any of the laws relating to the enforcement of Hudood while that of the High Court extends to all other matters. Incidentally it may be mentioned that the revisional jurisdiction of the High Court and of the Court of Session under the Code of Criminal Procedure is more extensive than that of this Court under Article 203-DD inasmuch as the High Court and the Court of Session can call for and examine the record of any 'proceeding', other than the one pertaining to Hudood Laws, before any inferior criminal Court whereas this Court can call for and examine the record of only 'case decided' by any criminal Court under any law relating to the enforcement of Hudood.
10. But for the specific provisions in the Hudood laws conferring appellate jurisdiction upon this Court, appeals preferable to this Court would have been heard and decided by the High Court.
Despite conferment upon and enjoyment by this Court the appellate jurisdiction under the Hudood Laws it was not until the insertion of Article 203-DD in the Constitution by Article 5 of the Constitution (Second Amendment) Order, 1982 (President's Order No,5 of 1982), that it came to be invested with and started exercising revisional jurisdiction; before coming into force of Article 203- DD the revisional jurisdiction was exercised by the High Court. It seems that the intention of the legislature for introducing Article 203-DD was to end dualism that existed in matters of hearing appeals and revision petitions; both the appellate and revisional jurisdictions were intended to be exercised by this Court in Hudood cases. It was aimed to achieve the arrangement of separating the revisional functions of the High Court and this Court: While this Court was given the authority to revise cases arising under laws relating to enforcement of Hudood the rest of the matters were left intact for revision by the High Court. As it were Article 203-DD brought about division of revisional work between the High Court and this Court. It is not evident from any specific provision that the orders passed by the High Court were made amenable to revision by this Court. It is pertinent to mention that appeals against the decisions of the High Court lie to the Supreme Court of Pakistan and not to this Court. A perusal of the provisions contemplating the process of revision scattered in a number of B statutes makes one thing clear that it is always the superior or higher Court or authority which revises the order of its subordinate or inferior Court or authority. The High Court may not be regarded as subordinate or inferior to this Court. In such a situation the order passed by the High Court would not be revisable by this Court.