AJAIB KHAN vs The STATE

ORDER

NASIM HASAN SHAH, J.-This is an unusual petition. The petitioners have challenged the order passed by the Federal Shariat Court, Islamabad, dated 16-1-1982 in Criminal Appeal No. 28-L of 1981 by filing a petition under Article 212 (3) read with Article 187 of the Constitution of Islamic Republic of Pakistan, 1973.

2. Article 212 (3) deals with appeals to this Court from the judgments, decrees, orders or sentences passed by the Administrative Court or Tribunal, while Article 187 relates to issue and execution of processes by this Court and obviously has no relevancy to the case in hand.

3. Raja Muhammad Anwar attempted to argue that the Federal Shariat Court could be deemed to be an Administrative Court and, therefore, an appeal against it, with leave of this Court, could be allowed if the case involved a substantial question of law of public importance.

4. The above plea is not tenable. Sub-Article (1) of Article 212 has specified the matters in respect of which an appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals for exercising exclusive jurisdiction. The matters in respect of which an Administrative Court or Tribunal can be established are in respect of matters relating to the terms and conditions of persons in service of Pakistan; matters relating to claims arising from courteous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law. To levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

5. It is, thus, clear that the Administrative Courts and Tribunals can not be established for any other matter except the matters mentioned above. The Federal Shariat Court on the other hand, has been established by amending the Constitution. Its purpose is to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur---an and the Sunnah of the Holy Prophet. None of the matters for which an Administrative Court o Tribunal can be established can be dealt with by the Federal Shariat Court.

Appeals to this Court under Article 212 (3) of the Constitution can only be filed in respect of orders passed in connection with the matters specified in Article 212 and in no other matter.

6. As for appeals against the judgments passed by the Federal Shariat Court are concerned, these were, until very recently, namely, until the promul--gation of President Order No. 5 of 1982 on 25-3- 1982, possible only in certain category of cases, namely, in those cases which were heard by it in exercise of its original jurisdiction i.e. In those matters wherein the question raised was whether an existing law was repugnant to the injunctions o B Islam and it was not possible in cases where the Federal Shariat Court was deciding a case in exercise of its appellate jurisdiction, such as the present case wherein it was deciding an appeal directed against a judgment passed in connection with an offence created by the Offence of Zina (Enforcement o Hadood) Ordinance, 1979. In such cases the orders of the Federal Sharia Court passed in appeal, as the law then stood, were final.

The upshot is that this petition, under Article 212 (3) of the Constitution, was not competent. It is, therefore, dismissed as misconceived.