1997 SCMR 1136 (PLP)

SAIDUZZAMAN SIDDIQUI, J.‑‑‑In the above‑noted three petitions for leave to appeal, the petitioner has sought leave to appeal against a 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 petitioner were dismissed. The relevant facts of the cases are that three different sets of cases were registered against the petitioner under the provisions of the Prohibition (Enforcement of Hadd) Order, 1979. The petitioner 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 wag 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 V)‑6‑1993. On transfer of these cases to the Sessions Judge, Quetta, the petitioner 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. Mr. K.M.A. Samdani, the learned counsel for the petitioner 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 Session 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 SCMR 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 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‑D D 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." 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. The interim order passed by this Court on 16‑8‑1994 shall remain operative till disposal of these appeals. N.H.Q./S‑958/S????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.