2004 PLP 278 (MLD)

In reply to the arguments the learned Advocate for applicant has stated that the said Article will be applicable in a matter if entire case is decided by the trial Court but in the present case, the case has not been decided but merely an application of surety was decided and the case is still pending, therefore, Article 203‑DD of Constitution of 1973 is not applicable. I have given due consideration to the arguments and have gone through the relevant Articles of Constitution of 1973. It is admitted position that the case pertains to offence punishable under the Offences of Property (Enforcement of Hudood) Ordinance 1979 as such the provisions of Articles 203‑DD and 203‑G of Constitution of 1973 are attracted which are as under:‑‑ [203DD. 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 on his own bond pending the examination of the record." Article 203‑G of Constitution of 1973 is also applicable in the case which reads as under:‑‑ 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." A perusal of clause (1) of above‑quoted Article 203‑DD indicates that the Court (which means 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 propriety of any findings, 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. A perusal of Article 203‑G shows that subject to Article 203‑F no Court or Tribunal including the Supreme Court and High Court shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court. It is pertinent to point out that Article 203-F referred to in the above Article provides appeal to the Supreme Court against the final order of the Federal Shariat Court. In the Article 203‑DD words "case decided" and "regularity of any proceedings" are very important which are to be examined so as to decide, whether interlocutory orders or the orders of the present nature are also coming within the ambit of revisional powers of Federal Shariat Court or not. If it is so then by virtue of Article 203-G this Court will be having no jurisdiction to entertain revision application. After examining the various statutes on Criminal Law, I find that the expression "case decided" has not been defined in any such criminal law. It is pointed out that "case" does not necessarily mean the whole case. The said term is wide enough to include a decision on substantial question even though the same is of interlocutory nature, subject to the condition that such decision should be arrived at by application of a judicial mind by giving reasons in support thereof. Furthermore through that decision the rights of the parties are finally decided. Thus a decision on any substantial question in controversy between the parties affecting their rights even though the same may be interlocutory order deciding such question finally would also come within the ambit of case decided. For example if an application under sections 265‑K or 249‑A, Cr.P.C. moved by an accused person is dismissed then the said order can be challenged through a revision though the case is pending. Through that order a substantial question in controversy affecting right of the accused was decided. The Federal Shariat Court has also examined the above point in a case of State v. Inayatullah and others (PLD 1983 FSC 244) and it has been observed as under:‑‑ "The words case decided do not mean all the proceedings but in which the decisions relating to some matter in controversy affecting the rights of the parties." The expression "case decided" has been interpreted by the Hon'ble Supreme Court in a case of Asghar Ali v. Abdul Ghafoor Abdul Rehman reported in 1992 SCMR 244, and at page 725, it has been observed as under:-- "The expression "case decided" does not necessarily mean the decision of entire suit, it .may relate to a decision of interlocutory matter requiring judicious mind". As regard the words "as to the regularity of any proceedings" appearing in Article 203‑DD, the same clearly shows that these words relate to the pending proceedings, similar view was taken in a case of Muhammad Hanif and others v. Mst. Shama Mai (1986 PCr.LJ 746) at page 748 it has been observed as under:‑‑ "The words as to the regularity of any proceedings' occurring in Article 203‑DD also include the 'pending case'. In the present case the right of the surety has been finally I decided under the impugned order, therefore, the order is coming within the ambit of case decided as mentioned in Article 203‑DD or Constitution of 1973, therefore, the Federal Shariat Court has jurisdiction in the matter hence by virtue of Article 203‑G of the Constitution of 1973 the jurisdiction of this Court is barred. Reliance is also placed on Khan Badshah v. The State (1985 PCr.LJ 2609), Jaffer Khan and another v. The State (1985 PCr.LJ 2611); Muhammad Ilyas v. The State (1986 PCr.LJ 344); Muhammad Hanif and others v. Mst. Shama (1986 PCr.LJ 746); Liaquat Ali v. The State (PLD 1989 Karachi 481). The authorities relied upon by the Advocate for the applicant are not applicable in the circumstances of the present case as in the said Authorities implications of Articles 203‑DD and 203‑G of the Constitution of 1973 were neither raised, considered or decided. In the light of what has been stated above the revision application is not maintainable. The same be returned to the applicant for presenting it before the Federal Shariat Court. The application is disposed of. N.H.Q./M‑576/K Order accordingly.