SAID AMIR vs THE STATE

' ABDUL KARIM KHAN KUNDI, J.--Said Amir, petitioner was allegedly recovered from 72 KGs of heroin from the godown in his possession and a case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, was registered against him. He faced the trial under FCR and a jirga constituted thereunder returned verdict of guilty and the political agent, Khyber convicted and sentenced the petitioner on its basis to six years' R.I. Under Article 3(a) of the Prohibition (Enforcement of Hadd)

Order, 1979 read with section 11 FCR. The appellant first sought a redress as against his conviction and sentence by revision before Commissioner FCR (FR), Peshawar, who however, dismissed his revision by order dated 2-2-1989. The petitioner was at last advised to file the instant criminal revision as against the orders of political agent/District Magistrate, Khyber Agency and Commissioner FR in this Court.

2. Atique-ur-Rehman Qazi, Advocate represented the petitioner, Mian Muhammad Ajmal, Addl.

Advocate-General, appeared for the State and Mr. Saeed Baig, Senior Advocate, assisted this Court as juris-counsult (amicus curiae). After hearing the learned counsel for the parties and going through the record, we have found that the Prohibition (Enforcement of Hadd) Order, 1979 was promulgated as president's Order IV of 1979 and it does not come within the purview and definition of Act of Parliament that it shall require direction of the President for its application to the Federally Administered Tribal Area as envisaged in Article 247(3) of the Constitution of the Islamic Republic of Pakistan 1973. By its Article 1(2), the President's Order IV of 1979, has been extended in application to the whole of Pakistan and Article 1(2) of the Constitution has described the territories of Pakistan to comprise of including the Federally Administered Tribal Area. It thus, comes to that the Prohibition (Enforcement of Hadd) Order, 1979, stands extended and applied to Federally Administered Tribal Area.

3. Under its Article 29, the President's Order IV of 1979 has been given overriding effect to any other law for the time being in force in the country and any other law for the time being in force shall also include the Frontier Crimes Regulation i.e,, the FCR in force in the Federally Administered Tribal Area.

Under Article 27 of the Order the provisions of the Code of Criminal Procedure, 1898, have been made applicable, mutatis mutandis, in respect of cases under the Order. The second proviso to clause (1) of Article 27 provides that an appeal from the order under Article 8 or an Order under any other provision of this Order imposing a sentence of imprisonment exceeding two years shall lie to the Federal Shariat Court. Thus in the case there was to lie an appeal against the conviction and sentence of six years' imprisonment imposed on the petitioner in the Federal Shariat Court and not to Commissioner FCR. But the petitioner has exhausted his remedy by way of revision before a wrong forum and has filed his criminal revision in this Court which it treated as appeal would be timebarred. However, as far as entertainment of criminal revision is concerned, there has been vested exclusive powers and jurisdiction in the Federal Sharit Court under Article 203-DD of the Constitution that on examination of the record of any case decided by any criminal Court under Hudood Laws an order passed by such Court if found not correct, legal or proper, the Federal Shariat Court may pass a proper order in exercise of revisional and other jurisdiction.

4. Consequently, there emerges out the correct legal position that the Prohibition Order applies to Federally Administered Tribal Area; it over-rides the provisions of FCR in Prohibition cases; the trial of the Prohibition cases shall be conducted under the Criminal Procedure Code; an appeal against the conviction and sentence shall lie to the Federal Shariat Court and not Commissioner FCR and that there has been conferred exclusive revisional and other jurisdiction on the Federal Shariat Court in Hudood cases by the Constitution.

5. In view of the above, we would accept this revision petition, set aside the judgments of respondents No,2 and 3 and remand the case to respondent No, 3 with direction to try the case under the Code of Criminal Procedure after constituting himself as a Court of Session. A request for bail was made before us but we direct to make such application in trial Court which shall be disposed of on merits. /Case remanded.