1999 P Cr (PLP)

439. High Court s powers of revision.

(1) in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge the High 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 authorise a High Court: (a) to convert a finding of acquittal into one of conviction; or (b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439‑A. (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also show cause against conviction." In view of the above quoted sections, this Court has jurisdiction to call for record and proceedings from the subordinate Courts in criminal cases and examine the correctness, legality and propriety of the order made by said Court and pass necessary orders but here the complainant instituted his complaint for offences punishable under section 17/3, Offences Against Property (Enforcement, of Hudood) Ordinance. As observed hereinabove after perusal of the statement recorded during P.E., the learned Additional Sessions Judge declined to entertain the complaint for offence under section 17(3) of the Ordinance and he held that the offences under sections 394, 356 and 452, P.P.C. made out in the case were triable by a First Class Magistrate. The exclusive jurisdiction of revision in cases falling under Hudood Laws is expressly provided for with the Federal Shariat Court under Articles 203‑DD and 203‑G of the Constitution. It would be advantageous to quote these Articles:‑‑ "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 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 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." 203‑G. Bar of jurisdiction.‑‑‑ 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. " The above quoted Articles make it crystal clear that the revisional powers in Hudood cases are exercisable by the Federal Shariat Court only and, therefore, the revision cannot be maintained by the applicant before this Court. Now I would like to discuss the case‑law referred to by the learned A41ditional Advocate‑General in support of his submissions. In the first case, PLD 1989 Kar. 481, Ajmal Mian, C.J. (as his Lordship then was) observed as under:‑‑ "I am inclined to hold that since the federal Shariat Court under Article 203‑DD has been conferred revisional powers, the High Court or any other Court cannot entertain a revision by virtue of express exclusion provided in Article 203‑G to tire effect that no Court or Tribunal including the Supreme Court and High Court shall entertain any proceedings or exercise any power of jurisdiction in respect of any matter within the power or jurisdiction of Federal Shariat Court..." In the second case, 1990 PCr.LJ 409 a celebrated Judge of this Court Qaisar Attuned Hamidi, J. (as he then was) held that impugned orders in the revision petitions pertained to forfeiture of bail bonds furnished by petitioner in favour of accused persons who had absconded after getting bail and the charge against the accused was for offence of Zina. As such the orders impugned in the revision fell within .the scope of words "case decided" used to clause (1) of Article 203‑DD of the Constitution and were amenable to revisional jurisdiction of Federal Shariat Court. It was, therefore, held that the revision petitions before the High Court were not competent and were returned to the petitioner for presentation before Federal Shariat Court. Similar were the observations in the case reported in 1991 PCr.LJ 1520. In the last case, 1998 PCr.LJ 2001, wherein the judgment has been delivered by a learned D.B. of this Court also the identical dictum has been laid down. The case‑law discussed hereinabove is fully attracted and applicable to the facts of the case in hand and the counsel for applicant has failed to persuade me to take a different view. Under the circumstances this revision is not maintainable before this Court and the same is dismissed in limine. However, applicant is at liberty to file a revision before the Federal Shariat Court if he is so advised. N.H,Q./A‑298/K Revision petition dismissed