1992 PCRLJ 2416

AMANULLAH KHAN KUNDI Versus THE FEDERATION OF PAKISTAN

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Citation1992 PCRLJ 2416

CourtFederal Shariat Court

Case No.Criminal Cons. Revision Petition No.16/K of 1992

Date1992-07-02

Judge(s)Tanzilur Rahman, CJ., Abaid Ullah Khan and Mir Hazar Khan Khoso

Authored byTanzilur Rahman

ResultPetition dismissed

TANZILUR RAHMAN, C.J. --- By this petition filed under Article 203-DD of the Constitution of Pakistan, 1973, the petitioners have prayed as under:--

"It is, therefore, prayed that this Hon'ble Court may, be pleased to call for the record from the Special Court (for Speedy Trials) Karachi-II for the purpose of satisfying itself as to the correctness, legality and propriety of the impugned order dated 15-4-1992 and, on examination of the same, set aside the impugned order, and, thereby hold and declare that the assumption of jurisdiction by the Special Court (for Speedy Trials) Karachi-II in respect of the present case, in pursuance of the order dated 7th March, 1992, by the Federal Government, Ministry of Law, Justice and Parliamentary Affairs; is illegal, inoperative, and ultra vires of Articles 203-A, 203-DD and 203-G of the Constitution:"

2. The facts, as stated in the petition, are that on receiving an information from German Police that one International Narcotics smuggler would deliver a huge quantity of heroin at Sheraton Hotel, the PNCB Police party, on receipt of the said information, arranged a raiding party, came to the Sheraton Hotel, arranged for a room and apprehended the three petitioners, who had brought three suit-cases as alleged. On opening one suit-case, it was found containing 20 bags--each bag, containing 1 kilogram of heroin powder. The other two, when opened, were found containing 30 kilograms of heroin powder, each containing 15 kilograms of heroin powder. The total quantity of heroin powder, thus recovered, was 50 kilograms. The heroin was weighed and sealed after drawing samples of five grams from each bag. In consequence of the said recovery, the three petitioners were arrested and a case was registered against them under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. On investigation, an interim challan in that behalf, was submitted on 18-6-1991 before the learned District and Sessions Judge, Karachi South. Subsequently, on 3-8-1991, the prosecution made a request to the learned Judge that the said interim challan be treated as final. The said request was so granted and the interim challan was treated as final. Thereafter the case was fixed for framing the charge. The case, however, did not proceed and was adjourned from time to time for non-production of petitioner No.1 for one reason or the other.

3. On March 7, 1992, however, the Federal Government through the Ministry, of Law, Justice and Parliamentary Affairs, issued an order that the case of the petitioners (registered under FIR No.8 of 1991 dated 4-6-1991) pending before the District and Sessions Judge, Karachi South, be transferred to the Special Court (for Speedy Trials), Karachi, headed by Mr. Justice (Retd.) Fakhruddin H. Sheikh, who issued a notice in the case for production of the petitioners on 28-3-1992.

4. On the very first day, viz. 28-3-1992 an application on behalf of the petitioners was moved before the said learned Special Court for Speedy Trials, challenging its jurisdiction to try the case on the grounds, inter alia, that the said Court had no jurisdiction in respect of cases relating to the Enforcement of Hudood. The learned Special Court by its order dated 15-4-1992 rejected the said application on the point of jurisdiction, which has been impugned before this Court in the above revision petition.

5. We have heard the learned counsel for the petitioners at length and have perused the impugned order and considered the law referred. We have also heard the learned Standing Counsel for the Federation.

6. Learned counsel for the petitioners has taken us through various provisions of Chapter 3-A of the Constitution as to the jurisdictional aspect of this Court with particular reference to Articles 203-DD, 203-G and 203-GG and submitted that this Court has the exclusive jurisdiction in all cases relating to Enforcement of Hudood. It seems convenient to reproduce Article 203-DD, which seems to be the main Article, for the purpose of this petition. The said Article reads as under:--

"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 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."

7. A bare reading of the above Article will show that this Court has Revisional Jurisdiction as conferred by the Constitution in (i) any "case decided", (ii) "by any criminal Court", (iii) "under any law", (iv) "relating to the Enforcement of Hudood", for the purpose of satisfying itself as to the correctness, legality or propriety of--- (v) "any finding", (vi) "sentence" or (vii) "order", passed by such Court .. and may (a) "direct that the execution of any sentence be suspended" and (b) "if the accused is in confinement, that he be released on bail ..pending the examination of the record"

8. Since, the case did not involve the scrutiny of facts, by this Court, we proceeded to hear the learned counsel on the basis of the present record, filed by him, and did not feel the necessity of calling for record and proceedings of the case.

9. Learned counsel for the petitioners submitted that the Twelfth Constitution (Amendment) Act, 1991, regarding the establishment of Special Courts for trial of heinous offences has interfered with the exclusive jurisdiction of this Court in matters of the "Enforcement of Hudood". The submission of the learned counsel on the face of it, seems to be erroneous inasmuch as there is no reference in the said Twelfth Constitution (Amendment) Act, 1991, regarding Chapter 3-A. The provision of Article 203-DD of the Constitution, in result, remains in tact.

10. Learned counsel for the petitioners next submitted that in pursuance of the Twelfth Amendment, the issuance of Ordinance of Special Court for Speedy Trials is ultra vires to the provisions of Article 203-DD of the Constitution. This submission of the learned counsel is again erroneous and seems to be misconceived. The Federal Shariat Court was primarily constituted to consider whether a law or a provision of law was or was not repugnant to the Injunctions of Islam (under Article 203-D(1)). Subsequently, Article 203-DD, quoted above, was inserted by President's Order No.V of 1982, but this relates the Revisional Jurisdiction of this Court only and not the Appellate or Original jurisdiction in the cases relating to Enforcement of Hudood. The appellate jurisdiction has, in fact, been conferred much earlier in or about 1980, on this Court under several provisions of the four Hudood Ordinances, namely, the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and the Prohibition (Enforcement of Hadd) Order, 1979. The Constitutional provision has, therefore, nothing to do with the Criminal Appellate Jurisdiction of this Court in the cases relating to the Enforcement of Hudood and, therefore, there is no repugnancy to the provision of Article 203-DD of the Constitution in conferring Original or Appellate Jurisdiction on the Special Courts for Speedy Trials or the Supreme Appellate Court as provided in the Establishment of Special Courts for Speedy Trial Ordinance, promulgated under the Twelfth Constitution (Amendment) Act, 1991. Consequently, there seems to be no curtailment of power of this Court as provided under Article 203-DD of the Constitution of Pakistan, 1973, as also submitted by the learned counsel for the Federation:

11. In this view of the matter, there seems to be no illegality in passing the order, dated 7-3-1992 for transferring the case by the Ministry of Law, Justice and Parliamentary Affairs from the Court of District and Sessions Judge, Karachi South, to the Special Court for Speedy Trials Karachi-II, under the Special Courts for Speedy Trials Ordinance, 1991.

12. The learned Special Court is acting as original trial Court with which this Court is least concerned. There is also no finding, sentence or order passed by the said trial Court relating to the enforcement of Hudood as provided under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979.

13. In result, there seems to be no illegality, incorrectness or impropriety in the order dated 15-4-1992 passed by the learned Special Court for Speedy Trials for taking cognizance of the case in question. The case can hardly be said to be a "case decided".

14. These are the reasons for our short order dated 2nd July, 1992, whereby the Petition, on the conclusion of the hearing the arguments of the learned counsel for the parties, was dismissed by us.

N.H.Q./737/FSC

Petition dismissed.