2003 P Cr (PLP)

‑‑‑‑Arts. 3/4‑‑‑Constitution of Pakistan (1973), Art.203‑DD‑‑‑Revision petition‑‑ Maintainability‑‑‑Federal Shariat Court alone had the Revisional jurisdiction in Hudood cases and High Court had no such jurisdiction‑‑‑Revision petition filed in High Court, thus, was not maintainable and the same was returned to the applicant for submission before the Federal Shariat Court, if so advised. Syed Maskin Shah v. The State 1994 MLD 190; Darya Khan v. State PLD 1989 Kar. 115; 1988 PCr.LJ 680; 1988 PCr.LJ 1606; 1988 PCr.LJ 1804; 1988 PCr.LJ 2031; 1986 PCr.LJ 2609; Qadeer Akhtar v. The State 1986 PCr.LJ 1334; Rahim Jan v. Ahmed Jan and others 1986 PCr.LJ 122; Nazir Masih v. The State 1986 PCr.LJ 1224; 1985 PCr.LJ 578; 1971 SCMR 618 and Liaquat Ali v. The State PLD 1989 SC 481 ref. Ghulam Muhammad Khan Durani for Applicant. Shafqat Hussain Shaikh, State Counsel. Date of hearing: 18th December, 2002. This Revision Application is directed against the, order dated 8‑10-2002 by the learned 3rd Additional Sessions Judge, Sukkur in a case under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The office has raised objection that the revisional jurisdiction lies with the Federal Shariat Court and not with this Court. Heard learned counsel for the applicant. The learned counsel for the applicant was confronted with the provisions contained in Article 203‑DD of the Constitution of Islamic Republic of Pakistan, which reads as follows:‑‑ "Article 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 orders 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 issue whether the expression "case decided" used in Article 203‑DD of the Constitution came for cancellation; in the case of Syed Maskin Shah v. The State 1994 MLD 190 before a larger Bench of the Federal Shariat Court. While considering import and meaning of the phrase "case decided, it was held that; 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 was further held to be of very wide import and to mean any state of facts juridically considered. The meaning was held to be 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. After consideration of a large number of the cases it was further held that the Court whose order was amenable to the revisional jurisdiction of Federal Shariat Court envisaged by the Article 203‑DD of the Constitution was "any criminal Court". It was further observed that the intention of enacting the Article 203‑DD, was to end dualism, in both appellate and revisional jurisdiction exercised by the Federal Shariat Court, in the Hudood cases. In view of the above authoritative pronouncement by a larger Bench of the Federal Shariat Court, it is held that the revisional jurisdiction in respect of the cases decided by the Courts trying the Hudood case, lies with the Federal Shariat Court and not the High Court. I am fortified in my views with the two judgments of this Court. In the case of Darya Khan v. State PLD 1989 Kar. 115, revision application was submitted before the High Court of Sindh, Bench at Sukkur, assailing the order of Additional Sessions Judge, Shikarpur, who had forfeited the bond and directed the applicant to pay Rs.6,

000. The applicant was surety in the said case. The revision application was withdrawn in view of Article 203‑DD of the Constitution. It was observed that the revisional jurisdiction lies with the Federal Shariat Court and the petitioner was allowed to move the Federal Shariat Court if so advised. The copies of the documents were ordered to be returned to him. The petitioner, however, repeated the revision application placing reliance on some reported judgments. The second revision application was dismissed in limine with the following order:‑‑ "The applicant has again moved another revision application against the same order. It is contended by Mr. Pir Shabroz Ahmed, that in so many cases this Court entertained the revision applications and passed the orders. He has referred to the cases reported in 1988 PCr.LJ 680, 1988 PCr.LJ 1606, 11988 PCr.LJ 1804 and 1988 PCr. LJ 2031. Under Article 203‑DD of the Constitution the Revisional jurisdiction has been given to the Federal Shariat Court. In case of Khan Badshah v. The State reported in 1986 PCr. LJ 2609, it has been held that revisional powers under Article 203‑DD of the Constitution have been conferred upon the Federal Shariat Court and Article 203‑G bars the jurisdiction of other Courts including the Supreme Court and High Courts under the Constitution. In the petition arising out of Hudood cases the revisional powers exclusively vest in the Federal Shariat Court. In case of Qadeer Akhtar v. The State reported in 1986 PCr.LJ 1334, the same view has been taken. Applicant should have gone to Federal Shariat Court but in spite of specific observations by this Court he has not filed revision but has chosen to file an other revision against the same order which in my view amounts to review. In criminal cases there is no provision of review and it has been observed in case of Rahim Jan v. Ahmed Jan and others reported in 1986 PCr.LJ 122 that remedy of review is like a remedy of appeal and same cannot be claimed in absence of an express conferment of such remedy by a statute. In case of Nazir Masih v. The State reported in 1986 PCr.LJ 1224 it has been observed that section 369, Cr.P.C. precludes the High Court from reviewing its own order. On this point I also refer to the case reported in 1985 PCr.LJ 578 and 1971 SCMR

618. Lastly the authorities cited by Pir Shabroz Ahmed are not relevant as this legal Constitutional point appears to have neither been pointed out nor considered in all the above cases. I am of the view that the revisional jurisdiction in the cases of Hudood Ordinance exclusively vests with the Federal Shariat Court, in view of Article 203‑DD of the Constitution and that in second revision earlier order cannot be reviewed. The revision having no merit is dismissed in limine." The question of jurisdiction of the High Court and Federal Shariat Court with reference to the Article 203‑DD of the Constitution again came for consideration before this Court, in the case of Liaquat Ali v. State PLD 1989 SC

481. Ajmal Mian, C.J. (as his Lordship then was) observed that a perusal of clause (1) of Article 203‑DD of the Constitution indicate that the Federal Shariat Court has exclusive jurisdiction and that no Court or Tribunal including Supreme Court and High Court, shall entertain a proceeding or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction, of Federal Shariat Court. It was further observed that the Federal Shariat Court has revisional jurisdiction under Article 203‑DD and, therefore, it must follow that a High Court will not have revisional jurisdiction. However, it was held that the Federal Shariat Court has not been conferred the jurisdiction to quash the proceedings and there is no provision in the nature of section 561‑A, Cr.P.C., conferring the power on Federal Shariat Court or akin to that, which has been conferred on a High Court under section 561‑A, Cr.P.C., therefore; jurisdiction of High Court to entertain a petition under section 561‑A, Cr.P.C. has not been excluded. In view of the law laid down in the above judgments and particularly in the case of Darya Khan v. State (supra), the facts whereof are on all fours to the facts of the present case, the office objection is upheld and it is held, that the revision application is not maintainable. The office is directed to return the revision application and the documents attached with the same after keeping photostat copies thereof on the record, to the petitioner who may submit the revision application before the Federal Shariat Court, if so advised. The learned counsel for the applicant has argued the case on merits as well but in view of the findings that the High Court has no jurisdiction to entertain revision application, no finding is given on merits. N. H.Q./S‑252/K Revision petition dismissed.