1994 P Cr (PLP)

(against petitioner Ghulam Muhammad and Muhammad Ishaque) The petitioners were initially challaned in the Court of Sessions Judge, Quetta. Subsequently when the cases were pending before the abovementioned Court the Federal Government vide order, dated 4-5-1992 transferred the cases to Special Court for Speedy Trials, Quetta. It is an admitted position that evidence is the abovementioned cases were concluded by Special Court and matter was fixed for arguments. However, the Federal Government transferred all these cases back to Sessions Judge, Quetta vide order, dated 19-6 1993. After transfer of the cases the petitioners submitted an application before the learned Sessions Judge, Quetta cn 27-3-1994 for de novo trial on the ground that Special Court had' no jurisdiction to record the evidence, therefore, the proceedings were corum non judice. This application was rejected by learned Sessions Judge, Quetta on 2-5-1994 which has now been impugned in the present petitions. I have heard Messrs K.M.A. Samdani, S.A.M. Qadri and Amanullah Baloch learned Advocates appearing for petitioners. Ch. Ejaz Yousuf, Special Prosecutor and Raja Rabnawaz, Deputy Attorney-General appearing for the State. Mr. K.M.A. Samdani has raised the following contentions:-- (i) Special Court for Speedy Trials had no jurisdiction to record evidence or conduct trial of the petitioners. The evidence recorded by trial Court had no legal sanction, therefore, the Special Court was corum non-judice and it has functioned under a law which was not valid. The Ordinance and the Act under Special Court if valid constitutionally, it has no application to the Provincially Administered Tribal Areas. (ii) Even if the law was valid or applicable in the area the alleged offence does not fall under the purview of section 2 of the Act. Therefore, the Special Court for Speedy Trials had no jurisdiction to record the evidence in these cases. (iii) Serious prejudice has been caused to the petitioners in the manner in which the cases were conducted and the evidence recorded by the said Court. (iv) The principle contained in section 350, Cr.P.C. has not been correctly applied by the trial Court. On the other hand Ch. Ejaz Yousuf, Special Prosecutor has vehemently opposed the petitions and contended as under: (a) That Speedy Trial Court is a creation of Constitution and had jurisdiction to try the cases of the petitioners. (b) Transfer order, dated 19-6-1993 clearly mentions that matter was sent back to complete the trial, therefore, the request for de novo trial is highly unjustified. (c) Section 350, Cr.P.C. clearly vests jurisdiction in trial Court for refusing to record the evidence afresh. (d) The revision petitions are not maintainable as under Article 203-DD of the Constitution only Federal Shariat Court is competent to entertain the revision petitions filed by the petitioners. Learned Deputy Attorney-General strenuously opposed tile petitions on the ground that no such objection was raised before the Special Court and such request should not be entertained at this belated stage. He further contended that the Federal Government vide order, dated 19-6-1993 transferred the cases to the Sessions Judge to complete the trial. By this order the petitioners were satisfied and did not press the Constitutional Petition No.286 of 1992. He next contended that no prejudice has been caused or shown by the petitioners and no objection was raised at the relevant time. In this regard he has relied on judgment reported in P L J 1993 (Criminal Cases) Quetta

177. I have carefully considered the arguments advanced by the learned counsel for parties and perused the record. The Special Court, for Speedy Trials was created by way of amendment in Article 212 of the Constitution. The learned Single Judge in the High Court of Balochistan who was presiding over the Court had the jurisdiction under law, in the whole Province of Balochistan including the Tribal areas. The Presidential Order No.4 of 1979 Prohibition (Enforcement of Hadd) Order, 1979 existing law was validly extended to whole of Pakistan including the Tribal areas of Balochistan by virtue of Article 270(1)(iii) of the Constitution. Therefore, proceedings recorded by the Speedy Trial Court do not suffer from any legal defect or lack of jurisdiction. 13 Learned Sessions Judge, Quetta is now transferee Court, therefore, it had the discretion to proceed with the matter on existing record. It is quite apparent that witnesses were exhaustively cross-examined as such in my opinion no prejudice appears to have been caused to petitioners with regard to evidence recorded by Special Court for Speedy Trials. The principle laid down in section. 350, " Cr.P.C. has been considered by the Division Bench of this Court in case Muhammad Aslam v. The State reported in 1993 P Cr. L J Quetta

177. Relevant observations are at pages 184 and 185 "Headnotes "B" and "C". The above decision has been upheld by the Honourable Supreme Court in Jail Petition No.7/Q of 1992, decided on 7-4-1993. Relevant observations after referring to section 350(1), Cr.P.C. are reproduced below:-- "No doubt previously on transfer of case the transferee Court was to record fresh evidence but through amendment brought about in the section by Law Reforms Ordinance, 1972 it is now permissible for the succeeding Court to rely on the evidence partly or wholly recorded at the trial by his predecessor. No such objection can be raised unless it is proved that the accused has been prejudiced thereby. The succeeding Court in the instant case is also presided by a Sessions Judge. No objection was raised at the relevant time nor any prejudice was shown to have been caused to the petitioner. The objections as such cannot be entertained at this stage. Leave to appeal is, therefore, refused and petition dismissed. " Similar view has been taken by Federal Shariat Court in case Liaquat Ali v. The State reported in 1992 P Cr. L J page

998. Now adverting to the preliminary objections raised by Ch. Ejaz Yousuf learned Special Prosecutor with regard to maintainability of revision petitions before this Court. According to him under Article 203-DD of the Constitution the revision petitions are competent only before the Federal Shariat Court. Article 203-DD is reproduced hereinbelow:-- "203-DD.

(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 authorise the Court to convert a finding of acquittal into opt 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." From the plain reading of the above Article, it is crystal clear that the Legislature has conferred revisional jurisdiction to the Federal Shariat Court in respect of orders passed by the trial Court under the Hudood laws. In the case reported as State v. Inayatullah and another P L D 1983 FSC 244 the Honourable Federal Shariat Court has held that the "case decided" do not mean all proceedings but only decisions relating to same matter in controversy affecting the rights of the parties". This view is supported by another authority of Sindh High Court reported in 1990 P Cr. L J

409. Relevant observations read as under:-- "The special revisional jurisdiction is conferred upon, the Federal Shariat Court after carving it out from the general jurisdiction of this Court through a Constitutional amendment (P.O. 5 of 1982). Article 203-G expressly bars the jurisdiction of this Court in respect of all decisions falling within the purview of the words 'case decided' used in clause (1) of Article 203-DD of the Constitution. The orders which are passed in exercise of incidental or ancillary powers to the main jurisdiction conferred by Hudood laws are also subject to revision to Federal Shariat Court under Article 203-DD of the Constitution." The above view was further strengthened by judgment reported in P L D 1985 Lah. 65, P L D 1990 FSC

26. From the above discussion it is concluded that application for de novo trial has been rightly rejected by the trial Court. Without prejudice to above it may further be observed that offences under which the petitioners are facing trial, carry punishment beyond two years, therefore, in view of Article 203-DD E of the Constitution the petitions are not competent before this Court which are accordingly dismissed. While perusing the judgment, delivered on 3-8-1994, it has been observed that at page 6 of the judgment, instead of Article 270-A, Article 270,(1)(iii) was inadvertently got typed. The same be therefore, read as Article 270-A, instead of Article 270(1)(iii). Office is directed to issue corrigendum in this behalf, in case, the certified copies of the judgment have been supplied. M.B.A./494/Q Petition dismissed.