1993 PLP 1523 (SCMR)

M. Aslam Uns, Advocate instructed by Ejaz M. Khan. Advocate‑on‑Record for Respondents Nos.l and 2 (in Cr. A. No. 22(S) of 1989 and for Respondent No.2 (in Cr. A. 19(S) of 1990). Manzoor Illahi, Ex‑Advocate‑on‑Record (absent) for Respondent No.4 (in Cr. A. No.22(S) of 1989). Mian Shakirullah Jan, Advocate‑on‑Record for Respondent (in Cr. A. No.26(S) of 1990. Nemo for the Remaining Respondents. SHAFIUR RAHMAN, J: ‑‑Leave to appeal was granted first of all in Criminal Appeal No.22 (S)/1989 to examine whether the Federal Shariat Court had rightly decided the question of its jurisdiction over the Federally Administered Tribal Areas (FATA). In the other four appeals the same question arose and had to be examined on the strength of the leave earlier granted in Criminal Appeal No.22 (S) of 1989. In four of these appeals the State through the Advocate‑General, N: W.F.P. is the appellant and in one (Criminal Appeal No.17 (S)/90) the convict Azizur Rahman is the appellant.

2. The accused in all these appeals were allegedly found in possession of Heroin in the Federally Administered Tribal Areas of Mohmand, Bajaur and Khyber Agencies. For example, from Sajjad Hussain and Ali Gohar (respondents in CrA. 22 (S)/89 and Cr.A. 19 (S)/90) 10 k.g. of Heroin was recovered, from Azizur Rahman (respondent No.3 in CrA. 22 (S)/89 and respondent in CrA.18 (S)/90 and also appellant in CrA. 17 (S)/90) 24 k.g. of Heroin was recovered, and from the godown of Said Amir (respondent in Cr. 26(S)/90) 72 k.g. of Heroin was recovered. All of them were tried by the Political Agents of various grades exercising powers of Additional Magistrates under the Frontier Crimes Regulation, 1901 (FCR) and were sentenced to imprisonment. In the first round before the Federal Shariat Court, Sajjad Hussain and Azizur Rahman filed Regular Appeals against their convictions and sentence. Ali Gohar filed an appeal against his conviction and sentence from Jail. These three matters were taken up by the Federal Shariat Court on 8‑2‑1989 and the preliminary jurisdictional issue was decided. After examining the various Constitutional provisions the Court by its judgment dated 8‑2‑1989 held that the objection to the jurisdiction of the Federal Shariat Court was misconceived and ordered that the three appeals be fixed for regular hearing. Criminal Petition for Leave to Appeal No.29‑R(S) of 1989 was filed by the State through Advocate‑General, N: W.F.P. against the excision on this preliminary issue and leave to appeal was granted on 27‑6‑1989. It was also ordered that further proceedings before the Federal Shariat Court shall remain stayed in the three appeals in which the consolidated judgment had been given by the Federal Shariat Court and which was the subject‑matter of grant of leave to appeal. Notwithstanding the stay of proceedings, these three appeals of Sajjad Hussain, Ali Gohar and Azizur Rehman pending in the Federal Shariat Court were heard and decided on 5‑7‑1989. The conviction and sentences were set aside and their cases were sent to the competent Court for trial. The matter of their bail was also left to be considered by the trial Court. Against these three judgments also, separate petitions for leave to appeal (now Cr.A. No. 17 (S) to 19(S)/90) were filed and the main ground taken up is that in view of the stay order granted by this Court the Federal Shariat Court was left with no jurisdiction to decide the matter in defiance of it. Said Amir's case was not subject to any such interim order and proceeded to a decision on 16‑11‑1989 wherein also retrial under Code of Criminal Procedure by a competent Court was directed.

3. The contention of the learned Additional Advocate‑General, N.‑W.F.P. that on the strength of Article 247(7) of Constitution and Federally Administered Tribal Areas (Exclusion of Jurisdiction of Federal Shariat Court) Order, 1984 President's Order 5 of 1984) which stands protected and remains effective under Article 270‑A of the Constitution the jurisdiction of the Federal Sharial Court remains ousted from the Federally Administered Tribal Areas.

4. In order to examine the full amplitude of the argument addressed before us, we have necessarily to start with the Prohibition (Enforcement of Hadd) Order, 1979 (President's Order 4 of 1979) under which the trial had taken place, It was promulgated by the President and Chief Martial Law Administrator in pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.LA. Order No.1 of 1977), and in exercise of all powers enabling him in that behalf. Article 1(2) of this P.O. 4 of 1979 provides that it extends to whole of Pakistan. Article 29 of it provides "this Order shall have effect notwithstanding anything contained in any other law for the time being in force". The trial has to take place under provisions of Criminal Procedure Code unless otherwise expressly provided in P.O. 4 of 1979. Offence under Article 8 of P.O. 4 of 1979 i.e. Drinking liable to add alone is triable by a Court of Session. The Presiding Officer of the trial Court as well as the appellate authority have to be a Muslim under Article 30 of P.O. 4 of 1979.

5. There are two limitations relevant to these appeals in Article 247 of the Constitution. The first is contained in sub‑Article (3) which provides as hereunder:‑‑ "No Act of Majlis‑e‑Shoora (Parliament) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Majlis‑e‑Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in saving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to I Tribal Area, or to a speed part thereof, have effect subject to such exceptions and modifications as may be specified in the direction." The second limitation is contained in sub‑Article (7) which provides as hereunder:‑‑ "Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Majlis‑e‑Shoora (Parliament) by law otherwise provides: Provided that nothing do this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day."

6. As the P.O. No. 4 of 1979 is not an Act of Majlis‑e‑Shoora but is a Constitutional Order made by the President and the Chief Martial Law Administrator and is expressly said to extend to whole of Pakistan within which is included the Federally Administered Tribal Areas, this Order No.4 of 1979 would extend to Federally Administered Tribal Areas. This is further borne out by the fact that it was taken to be so extended to the Federally Administered Tribal Areas by the Presidential Order No.5 of 1984. It was enforced on 8‑10‑1984 and was deemed to have taken effect on the 25th of June, 1980. By its Article 2 it provided as hereunder:‑‑ . "

2. Jurisdiction of‑Federal Shariat Court not to extend to the Federally Administered Tribal Areas: ‑(1) The jurisdiction of the Federal Shariat Court shall not extend, and shall be deemed never to have extended, to the Federally Administered Tribal Areas. (2) Notwithstanding the judgment of any Court, including the Federal Shariat Court, all laws in force in the Federally Administered Tribal Areas shall be deemed to be and always to have been, valid and shall not be called in question before any Court on any ground whatsoever."

7. The efficacy of P.O. No.5 of 1984 till the revival of the Constitution is not in dispute. However, after such revival its status as Constitutional or as a sub‑Constitutional provision is required to be examined. The relevant provisions for determining 'this question are sub‑Articles '(1), (3) and (6) of Article 270‑A of the Constitution which are reproduced hereunder:‑‑-- "270‑A. Affirmation of President's Orders etc.‑‑‑(1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O. No.11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhamrnad Zia‑ul‑Haq became the President of Pakistan on the day of the first meeting of the Majlis‑e‑Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O. No. 14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No.20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O. No. 24 of 19851, and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever: Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to the revocation of the Proclamation of the fifth day of July, 1977. (2)

(3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority. Explanation‑‑In this clause, "competent authority" means:‑‑ (a) in respect of . President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders all enactments, the appropriate Legislature; and (b) in respect of notifications, rules, orders and bye‑laws, the authority in which the power to make, alter, repeal or amend the same vests under the law. (4)

(5)

(6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Sechedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws. Explanation.‑‑‑In this Article "President's Orders" includes "President and Chief Martial Law Administrator's Orders" and "Chief. Martial Law Administrator's Orders:" These provisions read together alongwith the decision in Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1985 SC 416) establish that such protected instruments continue as sub‑constitutional provisions unless protected in the Schedule of the Constitution itself and they cannot be set up to or be made the test of the existence, efficacy and application of other Constitutional provision as such.

8. The jurisdiction of the Federal Shariat Court in such matters is traceable and confined to what is provided in Chapter 3‑A of Part VII of the Constitution and the relevant Article is Article 203‑A which reads "the provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution". The pre‑eminence and supremacy of this provision is established over the other provisions in the Constitution and it has been clarified so in the case of Oazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99) by the Shariat Appellate Bench of this Court. After the Revival of the Constitution, P.O. No.5 of 1984 cannot compete with or stand against Article 203‑A of the Constitution. 9. . The other provision invoked by the learned Additional Advocate?General namely clause (7) of Article 247 of the Constitution is inapplicable to the Federal Shariat Court because it expressly mentions the Supreme Court Ir and the High Court and excludes the Federal Shariat Court. What is excluded by express words cannot be included on any principle of interpretation.

10. In the circumstances, we find that the Federal Shariat Court rightly decided the preliminary legal point with regard to its jurisdiction over the I Federally Administered Tribal Arcas. Hence, Criminal Appeal No.22 (S) of 1989 is dismissed.

11. The other objection that after a stay order had been passed in Criminal Appeal No. 22 (S)/1989, the three appeals which were subject‑matter and covered by the stay order should not have been disposed of by the High Court while such stay lasted is correct. It appears that when these appeals came up for decision the stay order had not been communicated to the Federal Shariat Court. The judgments/orders do not show the awareness of its existence or effect. The law on the subject has been fully established by decision in Karam Ali v. Raja (PLD 1949 Lahore 100) approved by this Court in Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar (1974 SCMR 509) that the stay order operates from the time it is passed and is not dependent on the receipt of it. In the circumstances, the judgments/orders of the Fedeal Shariat Court in these three appeals i.e. Criminal Appeals 17, 18 and 19 (S) of 1990 arc set aside as being violative of the stay order and the Appeals Nos.17 (S), 18 (S) and 19. (S) of 1990 stand accepted. Nevertheless, the effect will remain the same because a retrial by the competent Court is called for and is directed. Criminal Appeal No.26 (S) of 1990 is dismissed for the reason that it was not affected by the stay order and the decision needs modification only to the extent that the trial would take place under the Criminal Procedure Code and by a competent Court which may not necessarily be in all cases the Court of Session. N.H.Q./S‑753/S,???????????????????????????????????????????????????????????????????????????????? Order accordingly,