' IRSHAD HASAN KHAN, J.---These appeals by leave of the Court, are directed against the common judgment of a learned Judge in Chambers of High Court of Balochistan dated 3-8-1994 whereby three criminal revision applications filed by the appellant, were dismissed.
2. The relevant facts are that the appellant is involved in three different sets of cases, registered against him under Article 3/4/26 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) read with section 8/14 of Dangerous Drugs Act, 1930. The allegations against the appellant are that he was involved in a case relating to the smuggling and keeping in unlawful possession 1741 Kgs. Heroin, 7967 Kgs. Charas, 255 Kgs. Opium and 136, in numbers, of Carbic Acid Soda Ash, besides, huge quantity of arms, which were allegedly recovered from his house.
3. The appellant was initially sent up for facing trial in the above cases before the Sessions Judge, Quetta. However, while these cases were pending before the Sessions Judge, Quetta the Federal Government vide order dated 4-5-1992 transferred these cases to Special Court for Speedy Trials, Quetta. The cases were proceeded before the Special Court and evidence in all the cases was recorded. However, before the judgment could be announced by the Special Court the Federal Government withdrew these cases from the Special Court and sent back these cases to the Sessions Judge, Quetta on 19-6-1993. On transfer of these cases to the Sessions Judge, Quetta, the appellant made an application before that Court for de novo trial and for recording the evidence in the cases afresh. The application was rejected by the learned Sessions Judge on 2-5-1994 and three criminal revision applications filed before High Court by the petitioner against the order of the Sessions Judge, Quetta, also met the same fate.
4. Leave to appeal was granted by this Court in the following terms:-- "Mr. K.M.A. Samdani, the learned counsel for the appellant contended before us that the proceedings before the Special Court were coram non judice as the Speedy Trial Court had no jurisdiction to try the offences alleged against the petitioner. It is, accordingly, contended by the learned counsel that the evidence recorded in the cases before the Special Court could not be used at the trial before the Sessions Court. It is also contended by the learned counsel that the view taken by the learned Judge in Chambers that the revision applications against the order of Sessions Judge, Quetta, declining to try the cases de novo, were not competent in view of the bar contained in Article 203-DD of the Constitution of Islamic Republic of Pakistan, is contrary to the ratio in the case. The State v. Iqbal Bibi (1993 SCM R 935). The learned counsel specifically relied on the following observations of this Court in the above-cited case in support of his above contentions:-- "5. We may observe that in order to attract above clause (1), there are three requirements:--
(i) the record which many 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 terms 'Criminal Court' used under the above clause (1) of Article 203-DD of the Constitution. It refer 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."
The learned counsel for the petitioner contended that from the above quoted observation, it is quite clear that the revisional jurisdiction of Federal Shariat Court under Article 203-DD of the Constitution is attracted only in a decided case and as in the present cases the proceedings were still pending before the learned Sessions Judge, Quetta, the High Court had the jurisdiction to entertain the revision applications against the order of Sessions Judge, specially when the matter related to procedural error in the trial of the case and not to the enforcement of any Hudood law.
The contentions raised by the learned counsel require examination and we, accordingly, grant leave to appeal to consider the same."
5. Mr. K.M.A. Samdani, learned counsel for the appellant argued that the proceedings before the learned Sessions Judge, Quetta, are still pending and, therefore, the revisional jurisdiction of Federal Shariat court under Article 203-DD of the Constitution is not attracted and that, in any case, the question of de novo trial is not a "case decided" nor it is a question under any law relating to enforcement of Hudood, therefore, the 'revision did not fall within the exclusive jurisdiction of the Federal Sharial Court under Article 203-DD of the Constitution. It was next contended that the occurrence took place in Dalbandin Tehsil of Chagai District, which is Provincially Administered Tribal Area, as defined in sub-clause (ii) to clause (b) of Article 246 of the Constitution, therefore, the Special Court for Speedy Trials, established under Ordinance-II of 1992, was not applicable to the said area, in terms of clause (3) of Article 247 of the Constitution, which contemplates that no act of Majlis-e-Shoora (Parliament), is applicable to any Federally Administered Tribal Area or to any part thereof, unless the President so directs. In the instant case, it was contended that no direction was issued, therefore, the proceedings before the Special Court for Speedy Trials, were coram non judice.
6. Mr. Tariq Mahmood, learned counsel for the respondents contended that under Article 203-DD of the Constitution, the Federal Shariat Court alone has revisional jurisdiction in respect of cases decided by any Criminal Court under any law relating to enforcement of Hudood. He next contended that the words, "case decided", include interlocutory orders passed in any pending proceedings. He 4urther submitted that according to section 350, C.P.C. a learned Sessions Judge/Magistrate may order re-examination of the witnesses whose testimony has already been recorded by his predecessor and recommence the trial but in his discretion he may also act on the evidence partly or wholly, recorded by his predecessor and base his judgment thereon, if the accused is not prejudiced thereby. In the instant case, it was argued, that the Courts below were of the opinion that the accused has not been materially prejudiced if the succeeding Court relies on the evidence already recorded at the trial by its predecessor. On these premises, Mr. Tariq Mahmood submitted that assuming but.Not conceding that the High Court was competent to exercise its revisional jurisdiction, in the circumstances of the case, this is not a fit case for interference. In support of his submissions reliance was placed on Ejaz Hussain v. Saeed Ahmad Butt (1984 SCMR 567). This Court declined to grant leave, in the case of Ejaz Hussain (supra), against the order of the High Court passed in a criminal revision, in a case under section 302/34, P.P.C., declining the prayer of the accused therein for recall and re-examination of the witnesses under section 350, C.P.C.
7. We have heard the learned counsel for the parties, perused the impugned judgment and have gone through the material available on record.
8. _ The controversy raised herein revolves upon the interpretation of phrase, "any case decided by any Criminal Court under any law relating to enforcement of Hudood" as used under Article 203-DD of the Constitution. The above phrase, "any law relating to enforcement of Hudood" has not been defined in the Constitution. Hudood laws in Pakistan are reflected in the statute books as follows:-- (1). The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance VII of 1979); (2). The Prohibition (Enforcement of Hadd) Order, 1979 (Order 4 of 1979); (3). Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance VI of 1979);
4. Offence of Qazf (Enforcement of Hadd) Order 1979 (Ordinance VII of 1979).
9. The Code of Criminal Procedure mutatis mutandis in respect of cases under the afore-referred Hudood laws, has been made applicable to the proceedings before the appropriate Courts thereunder. As regards the applicability of the Code of Criminal Procedure in the Prohibition, (Enforcement of Hadd) Order, 1979, Article 27 thereof makes the Code of Criminal Procedure applicable in respect of the cases under the Order mutatis mutandis unless provided otherwise. To the same effect is section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. As regards the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the provisions to that effect are contained in section 20 thereof. It is in section 17 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 that the application of the Code of Criminal Procedure, 1898, has been made applicable to the trial of references thereunder before the appropriate fora. Viewed in this context the phrase "any case decided by any Criminal Court under any law relating to the enforcement of Hudood" is to be construed by reading together the afore-referred provisions relating to the procedure to be followed by the Criminal Courts under the Hudood laws.
10. The question for consideration in this case is whether an order disallowing an application for holding de novo trial under the relevant provisions of Code of Criminal Procedure i.e, section 307, Cr.P.C., would tantamount to a "case decided" by any Criminal Court under any law relating to enforcement of Hudood"?
11. We are of the view that a restrictive interpretation cannot be put on the words used in Article 203-DD. The words, "any law relating to enforcement of Hudood" have very wide meaning and undeniably include the substantive as well as procedural laws. But differently, "any law relating to the enforcement of Hudood" includes the decision by the learned Sessions Judge on the application for de novo trial regarding prosecution of the appellant in a case under Article 3/4/26 of Prohibition (Enforcement of Hadd) Order, 1979 and section 8/14 of Dangerous Drugs Act, 1930.
Additionally, the decision rejecting the application for de novo trial, as stated above, falls within the compass of the term "any case decided" under the law relating to the enforcement of Hudood by the learned Sessions Judge.
12. The scope of Article 203-DD of the Constitution was considered by the Shariat Appellate Bench of this Court in the case of The State v. Mst. Iqbal Bibi (1993 SCM R 935), wherein it was held:-- "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 so 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."
' The contents of the paragraph 5 of the judgment in the case of Mst. Iqbal Bibi (supra) have been noted in the leave granting order, reproduced above, it is, therefore, not necessary to repeat the same. In the precedent case, the view taken by this Court in the case of Haji Muhammad Aslam Khan v. Muhammad Aslam (1990 SCM R 211), was reiterated that Article 203-DD of the Constitution deals with the revisional powers of the Federal Shariat Court in Hudood cases but does not debar the inherent jurisdiction of the High Court under section 561-A, Cr.P.C., pending against anyone in a Court of criminal jurisdiction. The Shariat Appellate Bench also took note of the judgment in the case of Malik Nazar Elahi v. The State (1990 SCM R 1092), wherein the High Court, while disposing of the criminal revision petition of the petitioners therein, reduced the surety amount from 10,000 to 8,000 against the order of the learned Sessions Judge, forfeiting the bond to the extent of the full amount for an accused in a case under Article 3/4 of the Order. This Court declined the petition for leave to appeal against the above judgment of the High Court. It may be observed, that the jurisdiction of the High Court to exercise revisional jurisdiction with reference to the provisions of Article 203-DD of the Constitution was neither raised nor discussed in the case of Malik Nazar Elahi (supra).
' In the case of Mst. Iqbal Bibi (supra), leave to appeal was granted to consider whether the Federal Shariat Court had jurisdiction under Article 203-DD of the Constitution to revise the order of the High Court in exercise of its revisional jurisdiction. The answer was in the negative. Consequently, the appeal was allowed and the judgment of the Federal Shariat Court was set aside with the following observations:-- "9 ..... ....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 jurisdiction of the Federal Shariat Court under Article 203-DD was not attracted to in the present case."
13. In the instant case, the grievance of the appellant arises out of order of refusal of his petition for de novo trial by the Criminal Court, which was an order in the nature of enforcement of Hudood. As pointed out above, revisional jurisdiction of the Federal Shariat Court under Article 203 of the Constitution was alone attracted in the case and the High Court was justified in dismissing the petition being incompetent.
14. It is well-settled that the term, "case decided" can be construed as a decision given in respect of any state of facts after judicially considering the same, which need not necessarily dispose of the whole matter in a cause pending before a Court subordinate to the High Court. Reference may be made to Umar Dad Khan v. Tila Muhammad Khan (PLD 1970 SC 288), wherein this Court approved the statement of law in Bibi Gurdevi v. Muhammad Bakhsh (AIR 1943 Lah. 65), wherein the word "case" was explained as follows:- "I am inclined to think that the true test for deciding whether a particular interlocutory order should or should not be looked upon as a `case' for the purpose of section 115, C.P.C., is to be deduced not from the meaning of the word ' case', but from the proper scope and limits of the revisional jurisdiction conferred upon the High Court by that section. From the standpoint of language, pure and simple, there seems to be no good reason why one branch of a suit should be held to be a ' case' but not another and the word may include any interlocutory order. This does not, of course, mean that purely formal orders such as those relating to an adjournment or the summoning of a witness, etc. Could be looked upon as 'cases'. But when a decision relates to some matter in controversy affecting the rights of the parties, I do not see why it should not be looked upon as a 'case'. This wide interpretation of the word 'case' is not, I think, likely to lead to inconvenience in practice as the field of interlocutory orders subject to revision will be extremely narrow in view of the express and implied conditions necessary for the exercise of the revisional jurisdiction.
Theoretically the extraordinary jurisdiction is unlimited, but in practice it is held to be subject to important and well-recognized limits."
' The same view was taken by the Federal Shariat Court in the case of The State v. Anayatullah (PLD 1983 FSC 244), refer also Bashir Ahmad Khan v. Qaiser Ali Khan (PLD 1973 SC 507), Messrs National Security Insurance Company Limited v. Messrs Hoechst Pakistan Limited (1992 SCM R 718) and Pakistan Fisheries Ltd., Karachi v. United Bank Ltd. (PLD 1993 SC 109).
We also quote with approval the case of Jaffar Khan v. The State (1985 PCr.LJ 2611), wherein a Division Bench of the High Court of Balochistan held that revision petition against the order of Additional Sessions Judge deciding question whether a direct challan could have been entertained by him, would lie before the Federal Shariat Court in view of Article 203-DD read with Articles 203- DD and 203-F of the Constitution. Ajmal Mian, Acting C.J., as he then was, observed:-- "In this regard, it may be pertinent to observe that Article 203-DD of the Constitution of the Islamic Republic of Pakistan, 1973 provides that the Federal Shariat 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 properiety 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 by 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. 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 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. In this behalf reference may be made to the case of Muhammad Ilayas v. The State reported in 1986 PCr.LJ 344, in which a learned Single Judge of the Sindh High Court declined to entertain a revision in view of the above Articles 203-DD and 203-G of the Constitution of Islamic Republic of Pakistan, 1973."
15. In view of the above, we are inclined to hold that the proper remedy for the appellant is to approach the Federal Shariat Court as the learned Sessions Judge has rejected the application for de novo trial, which goes to the root of the matter, decided by a Criminal Court under the procedural law (Code of Criminal Procedure) relating to the enforcement of Hudood. We would refrain from expressing any considered opinion on the merits of the case, in these proceedings lest it may prejudice the case of either party. Needless to observe that notwithstanding any observations made by the High Court, in the impugned judgment, as to the merits of the case, the appellant shall be at liberty to approach the Federal Shariat Court for resolution of the dispute raised herein through appropriate proceedings in accordance with law.
16. Resultatntly, the appeals are dismissed.