P L D 1982 Quetta 103 (PLP)

"Provided further that the Deputy Commissioner or Political Agent may direct an inquiry or investigation to be made by such other person as he thinks fit for the purpose of ascertaining truth or falsehood of a complaint and such other person shall for the purpose of the said inquiry or investigation exercise all the powers conferred by the Code of Criminal Procedure, 1898 on an Officer Incharge of the Police Station; Provided also that if the result of inquiry/investigation indicates that no offence has been committed the Deputy Commissioner or Political Agent, may instead of making reference to Tribunal dismiss the complaint." By these provisos the Deputy Commissioner has been authorised to refer the matter for investigation or inquiry to such other persons as he thinks proper where the case has been filed on a complaint. By virtue of the second proviso he has been empowered to dismiss the complaint if it is found that no offence has been committed. This provision is in fact equivalent to and identical with the powers of Magistrate under section 202, Cr. P. C. By introduction this provision now it is now incumbent upon the Deputy Commissioner to refer a case to the Tribunal even it the complaint does not disclose commission of an offence. The introduction of the proviso does not affect the competency of the Deputy Commissioner and his powers under section 16 of the Ordinance. There will hardly be any need left now to consider the question as to when the Deputy Commissioner takes cognizance of the offence. However in this behalf observations of Anwar-ul-Haq, J. in case of Ali Sher v. State P L D 1970 Kar. 790, are pertinent. If an application for grant of bail is considered by the Deputy Commissioner, he shall be deemed to have applied his mind and to have taken the cognizance of the case. In this behalf paragraphs 12 and 13 of the said judgment are relevant; "(12) Respectfully following the above interpretation of the phrase "taking cognizance", it seems to me that the moment a case involving the alleged commission of a scheduled offence is placed before the Deputy Commissioner, and he takes judicial notice of the facts constituting such offence the case is drawn into the ambit of the Ordinance for the reason that the Deputy Commissioner has taken cognizance thereof within the meaning of section 4 of the Ordinance. The act of constituting a Tribunal under section 5 of the Or(`. we is subsequent to the taking of cognizance by the Deputy' Commissioner and cannot be regarded as condition precedent, as suggested by the learned counsel for the petitioner. It is significant that section 4 of the Ordinance is identical with section 190 of the Code of Criminal Procedure, which contemplates three modes in which cognizance of an offence can be taken by a Magistrate, upon receiving a complaint of the facts constituting such offence, upon a report in writing of such facts made by a Police Officer or upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed. No formal act has necessarily to be performed by the Deputy Commissioner to show that he has taken cognizance of the offence; what is necessary is that the relevant facts constituting the offence have come to his judicial notice or knowledge by the case having been submitted to him in any of the prescribed modes. (13) Now, in the present case it is admitted that the Nazim and Magistrate of the First Class; exercising the powers of the Deputy Commissioner, had very much taken judicial notice of the relevant facts by applying his mind to the question of granting bail to the petitioners. Such a question could not have arison before him unless he had taken, cognizance of the case." On these premises as well the Deputy Commissioner would be competent to entertain application for bail report is submitted by the Police in the form of a challan.

10. The question of powers of the Deputy Commissioner for grant of bail had also been considered by a Division Bench of this Court in Criminal Revision No. 6/68 (State v. Syed Fazal Hussain Hashmi) on 7th June, 1968. In that case as well their Lordships had not denied jurisdiction to the Deputy Commissioner under section 16 of the Ordinance. It was held that the Deputy Commissioner had not got the exclusive jurisdiction to grant bail. That was a case where the Sessions Judge had granted bail in a case for a scheduled offence. Revision was filed by the State which was dismissed and it was held that the Sessions Judge also had the jurisdiction and there was nothing in the Ordinance to exclude the jurisdiction of the Courts under the Criminal Procedure Code.

11. Under section 16 of the Ordinance Deputy Commissioner has been given the same jurisdiction as that of the Court but the jurisdiction of the ordinary Courts under the Criminal Procedure Code has not been taken away as has been done under section 3 of the Ordinance in respect to the trial of a scheduled offence. The result would be that in cases the Deputy Commissioner exercises the powers under section 10 of the Ordinance at any stage of the case either during the stage of investigation, inquiry or after taking cognizance the order would be one . made under the Ordinance: This will not be questionable in any Court. Section 28 of the Ordinance excludes the jurisdiction of all Courts from questioning the proceedings or orders made under the Ordinance. Once the order is made by the Deputy Commissioner under section 16 whether granting bail or rejecting bail an application in that behalf cannot be made to any Court under sections 496 and 497, Cr. P. C. or to the High Court or Court of Session under section 498, Cr. P. C. Since this very fact of considering the matter of grant of bail or rejecting such application would be an order under section 16 of the Ordinance. Same view was taken in the case of Ali Sher v. State.

12. Some members of the bar have also referred to the preamble of the Ordinance which reads as under : "Preamble.-Whereas it is necessary to make special provision for trial of certain offenses in certain areas of West Pakistan to meet the special requirements of those areas." Their contention is that the scheme of the Ordinance and the preamble point out that the Ordinance deals with only trial of certain offences and this is an indication that powers under Criminal Procedure Code are applicable throughout. The investigation and till cognizance is taken under section 4 of the Ordinance. This is not so. Preamble can be resorted to where there is any doubt as to the interpretation of a statute but it cannot be used to control the provisions of a statute where there is no ambiguity or uncertainty. All offences under Pakistan Penal Code are to be investigated and tried in accordance with the provisions of Criminal Procedure Code according to section 5(1), Cr. P. C. All Penal Code offences are scheduled offences and all scheduled offences are cognizable offences. "Cognizable" under the Ordinance has the same meaning as given in clause (f ) of section 4 of the Criminal Procedure Code by virtue of section 2(4) of the Ordinance. Criminal Procedure Code under section 152 deals with cognizable cases and section 115 deals with non-cognizable cases. Police Officer cannot investigate a noncognizable offence without the order of the Magistrate of the First Class end Second Class while under the provisions of Ordinance II of 1968 no such orders are required. This is a deviation from the provisions of the Criminal Procedure Code which means that the provisions of the Ordinance also to certain extent control the provisions of Cr. P. C. as regard investigation. Moreover, the powers of investigation of all cases have been given by' the Ordinance to the State Levies Force which would not have been available to them except by the amendment made by amending Ordinance XIV of 1979. These factors show that there has been a departure and something has been taken away from the provision 6f subsection (1) o section 5 and section 155 (2) of the Criminal Procedure Code in those areas where Ordinance II of 1968 is in force and amended procedure has been prescribed. It therefore could not be urged that Ordinance II of 1968 is applicable only to the trial and has no application before cognizance is D taken under section 4 of the Ordinance. The preamble of the Ordinance also could not mean. to restrict the powers of the Deputy Commissioner under section 16 of the Ordinance. Preamble has to be used to find out the intention of the Legislature where there is any ambiguity or intention cannot be gathered otherwise. The intention of the Legislature in section 16 of the Ordinance is obvious and so preamble will not be used either to take way the powers of the. Deputy Commissioner specifically given or to curtail it to the extent that such powers are exerciseable after cognizance ha been taken. If such powers were intended to be exerciseable by the Deputy Commissioner after the cognizance had been taken it could have been so expressed as in the case of the powers of the President given in subsection (2) of section 16 which is as under : "16.-(2) The President of a Tribunal may in regard to a case referred to the Tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section." The President is given powers in the matter of granting bail after reference has been made to the Tribunal. In the same manner a stage could have been fixed for the Deputy Commissioner to exercise the powers if it was so desired. I have no hesitation in holding that the Deputy Commissioner has the powers to grant bail even before cognizance of the offence has been taken by him..

13. The next objection of the counsel of the petitioner was that the M. B. R. has accepted bail application directly which he was not authorized to do. Provisions of granting bail are given under section 16 of the Ordinance and Deputy Commissioner has the powers to grant bail. According to section 23 of the Ordinance if a person is aggrieved by any order made by the Deputy Commissioner he can file an appeal to the. Commissioner. Powers of revision are given to the Government which are exercised by the M. B. R. as the nominee of the Government and he can call for the record of any proceedings pending or disposed of and examine the legality of any order made and pass appropriate order. . In the present case the respondents had filed an appeal before the Commissioner under section 23 of the Ordinance copy of which is Annexure 'E', which shows in paragraph 3 that the bail E application had been rejected by the lower Court but copy of the order had not been supplied. The Additional Commissioner dismissed the appeal by his order dated 10-5-1.981. This also indicates that there had been some bail application in the Court of the Deputy Commissioner. In paragraph 3 of the order of Member, Board of Revenue dated 27-7-1981, it is stated that the allegations were that the bail application was rejected by the lower Court and the present respondents preferred an appeal before the Commissioner which too was dismissed. The Member Board of Revenue has exercise jurisdiction vested in him and has not entertained a bail application directly as stated by the petitioner. This objection has no basis.

14. The learned counsel of the petitioner also contended that the Member Board of Revenue has exercised the jurisdiction under section 498, Cr. P. C. To this extent the order of the Member Board of Revenue is not proper. He has stated in his order "it rather attracts the provisions of section 498(2), Cr. P. C. and so the accused are entitled to be granted the bail prayed for". Powers under section 498, Cr. P. C. are exerciseable only by the High Court and the Court of Session and not by the Member, Board of Revenue. In fact he has exercised the powers vested in him under section 24 of the Criminal Law (Special Provisions) Ordinance, 1968 and has unnecessarily dragged section 498, Cr. P. C. into the proceedings. In substance it is an order under the Provisions of the Ordinance. This argument has also no force. The learned counsel also contended that the Member Board of Revenue has expressed such opinion on the case that amounts to acquittal of the accused person, These observations of the Member Board of Revenue were also not proper and uncalled for and can be easily ignored by the Deputy ~ Commissioner or the Tribunal while trying the case. The petition is dismissed and before parting we would like to express our gratitude to the members of the bar for assisting us. ABDUL QADBHR CHAUDHRY, J.-I have had the advantage of reading in advance the judgment proposed to be delivered by my learned brother. With profound respect I have not been able to associate myself with the view that the Deputy Commissioner, under Ordinance II of 1968, has the power to grant bail even before cognizance has been taken by him. In my humble view the Deputy Commissioner would figure in the matter only when he takes cognizance of the matter. Prior to the taking of cognizance the Deputy Commissioner is not empowered to admit a person accused of an offence to bail. Ordinance II of 1968 is a special enactment. The accepted principle of interpretation is that special enactment is to be read strictly. Additionally every enactment should be interpreted in the way so as to meet the intention of the Legislature. An interpretation is to be accepted which is more in consonance with reason and justice. The general jurisdiction of ordinary courts has to be retained unless specially excluded. The provision for grant of bail under Ordinance 11 of 1968, is section 16 which has been reproduced in the proposed judgment. Section 16 empowers the Deputy Commissioner to admit a person to bail and a scheduled offence shall be bailable or non-bailable in accordance with the Code of Criminal .Procedure. The crux of. the matter is that even a non-bailable offence is cognizable offence and the Polite may arrest a person accused of an offence without warrant. The words "appears or is brought before a Court mentioned in sections 496 and 497 are significant. The word appears means the appearance of a person who is required to surrender to custody under an order of arrest made against him. In Muhammad Yaqub v. Muhammad Yaqub and another P L D 1960 S C 1003, it is observed production of any person accused of an offence . would mean either during investigation or at the time of trial. The scheme of Ordinance Ilk does not show that a person accused of an offence shall be required to appear before the Deputy Commissioner at any pre-trial stage. The Deputy Commissioner under the Ordinance could. exercise the powers under section 496 or 49? if a person accused of a scheduled offence appears or is brought before him, and only then he could exercise his powers to grant bail in accordance with section 16 of the Ordinance. The accused appears or is brought before the Court only during investigation or trial. If an person accused of a scheduled offence is- not required to be produced before the Deputy . Commissioner for any purpose, then he has no authority to admit such person to bail. The accused could only be produced before the Deputy Commissioner when he proceeds to take cognizance of. the matter, after having examined the record or the material placed before him. There is no provision in the Ordinance for making investigation and the investigation has to be conducted in accordance with the provision of Code of Criminal Procedure. There is no provision in the Ordinance for remanding an accused to the custody of the Police during investigation and such powers can be exercised by a Magistrate under section 167(2) of Code of Criminal Procedure. A person accused of an offence cannot be produced before the Deputy Commissioner under section 167(2) for the purpose of remand The preamble of Ordinance II would be relevant for the purpose of interpretation of section 4 and section 16 of the Ordinance. The scheme of Ordinance 11 is primarily meant for the mode of trial and only sections 17 and 18 are preventive in nature. Section 15(ii) as amended by Ordinance XIV of 1979 empowers the State Levies Force to investigate a schedule offence. But again the investigation is to be conducted under the provisions of Cr. P. C. There may be a forum for exclusive jurisdiction of trial, but it cannot proceed unless case is referred to it by way of challan or complaint. Where the case is registered by the Police, the Deputy Commissioner comes into picture when the challan is submitted before him, or in a case of private complaint when it is filed before it. The taking of cognizance is a stage K where the jurisdiction of the normal Court is ousted. If the broad proposition that the Deputy Commissioner has the exclusive jurisdiction to admit a person accused of schedule offence, to bail, before the takes the cognizance, is accepted then anomalous position would arise. Under section 167, Cr. P. C the accused has to be produced before a Magistrate if the investigation is not completed within a period of 24 hours and under section 167(2), the Magistrate may authorise the detention of the accused in the custody for a period not exceeding 15 days. The order of detention under this section is not a mechanical order, but the Magistrate has to satisfy himself if the custody of an accused be given to the Police, as under sub-clause (3) of section 167 the Magistrate shall record his reasons for so doing. If a person accused of an offence is not admitted to bail by the Deputy Commissioner during the investigation stage, then it means that the Magistrate has no option but to remand the accused to the Police even though he is not satisfied that the further detention of the accused in Police custody is required. Similarly incharge of the Police Station cannot make any order under section 169, Cr. P. C. even though upon an investigation there is no sufficient evidence or reasonable grounds of- suspicion to justify the forwarding of the accused to Magistrate. The Lahore authority P L D 1968 Lah. 1441 is distinguishable, as the observation has been recorded in the context that at the time of reference to the tribunal it was held that the cognizance can be taken by the Deputy Commissioner even against those persons who had been accused of an offence and though no challan has been submitted against them. My learned brother has also referred to Civil Revision No. 6 of 1968 (State v. Syed Fazal Hussain Hashmi) but this authority supports the view taken by me. It would be profitable to reproduce the relevant portion of the judgment delivered by the eminent Judges (Sardar M. Iqbal and K. E. Chauhan). "The case of the learned Additional Advocate-General is that the Deputy Commissioner by virtue of this provision had the exclusive jurisdiction to entertain a bail application and to pass orders thereon. As to the words "shall have the same powers of granting bail to person or persons accused of an offence as a Court has under that Code", his contention is that these words were used by way of brevity to include all the provisions of the Code of Criminal Procedure dealing with the power to grant bails in criminal matters in this Ordinance for the purpose that the Deputy Commissioner in dealing with bail matter would exercise his powers subject to the same conditions and limitations. We are unable to subscribe to this view. If the Legislature had really intended to extend exclusive power to the Deputy Commissioner, it would have used the word "exclusive" instead of the word "same". Wherever the Legislature so intended, it has provided in such like terms.. In section 4 of the Ordinance, it is stated: "The Deputy Commissioner shall have.. exclusive jurisdiction to take cognizance of a scheduled offence .. . . , . ." The Legislature has in its wisdom and intentionally not given exclusive power of bail to the Deputy Commissioner, and this is manifest from the provisions of the Ordinance itself, when read in the light of the relevant provisions of the Code of Criminal Procedure, Section 5(I) of the Code says: "All offences, under the Pakistan Penal Code shall be investigated, enquired into, tried, and otherwise dealt with according to the provisions hereinafter contained". The scheduled offences are mostly the offences under the Penal Code. By virtue of this provision they had to be investigated, enquired into, tried, and' otherwise dealt with in accordance with the provisions of the Criminal Procedure Code. It is only to the extent that where there is special procedure provided in a special or a local law that the provisions of the Code of Criminal Procedure could not be applicable. This is no provision in the Ordinance for the investigation of offences. By virtue of section 5(1) of the Code of Criminal Procedure read with section 1(2) thereof a scheduled offence has to be investigated according to the procedure laid down in the Code. The learned Additional Advocates General frankly conceded that the investigation under the Code of Criminal Procedure is not affected by the provisions contained in section 3 of the Ordinance. He, however, contended that the power of bail is to be exercised even during the time of investigation, by the Deputy Commissioner. The learned Additional Advocate General contends that in sections 60 and 61 of the Code of Criminal Procedure wherever the word "Magistrate" occurs it has to be read as "Deputy Commissioner" with reference to the scheduled offences. We find no warrant for such an assumption. 1f the Legislature had any such intention, it could make a provision- to that effect in the Ordinance. The legislation by reference is one of the accepted modes of legislation and is commonly adopted. In the absence of any such provision it is not permissible in law to read the words "Deputy Commissioner in section 60, 61 or 107 of the Code. The Legislature is presumed to know the provisions of legislative enactments, and its awareness of the Code of Criminal Procedure while enacting Ordinance II of 1968, cannot be doubted because there is here and there reference to the Code in the Ordinance itself. If the Legislature had any intention to oust the jurisdiction of the Magistrates or Courts to admit a person to bail at the stage of investigation or that it should not take any proceedings under section 60 and. 61 or 167 of the Code, it could have made a provision to that, effect in the Ordinance, The intentional omission is significant. and in fact it is in accordance with the scheme of the Ordinance. The criminal proceedings, according to the Ordinance, are divided at two stages, one before the cognizance is taken of a scheduled offence, and the other after the cognizance is taken. The Ordinance is conspicuous by an absence of reference to any proceeding before the cognizance is taken. The Code of criminal procedure applies to all proceedings till such time as the cognizance of an offence is taken by the Deputy Commissioner. It is on the taking of the cognizance by the Deputy Commissioner that proceedings under the Ordinance start and under subsection (1) of section 3 a scheduled offence has to be tried only "in the manner provided by" the Ordinance, and it is only in respect of such proceedings under the Ordinance that it has been provided in subsection (2) of the aforesaid section that "the Code of Criminal Procedure, 1898 (V of 1898), shall not apply." Thus the jurisdiction of the Magistrates under section 497 and that of the Sessions Judges or the High Courts under section 498 of the Code to deal with the application for bail of persons during investigation, and at any stage before the Deputy Commissioner actually takes cognizance of a scheduled offence, is not in any way affected by the provisions of the Ordinance. There is another aspect of the case. A scheduled offence has been made cognizable in the Ordinance and thus a person accused of an offence may be arrested without warrant. A' person so arrested may be released under sections 496 and 497, Cr. P. C. as the case may by a Court but if an accused person is arrested on a warrant issued by a Magistrate then as stated earlier the jurisdiction under the provision can only be exercised if the accused appears or is brought before a Court. In substance if a person accused of an offence is not' required before Deputy Commissioner then the powers under sections 496 and 497 cannot be exercised. The Deputy Commissioner does) not figure in during the investigation of the case. As such he has no jurisdiction to entertain an application for bail of any person accused of an offence, during the investigation or inquiry. During all this period the ' jurisdiction of the normal Courts to exercise any of the persons mentioned in Code of Criminal Procedure has been saved. This is the consistent view take by the authorities. In Ghulam Muhammad and 3 others v. The State P L D 1979 Quetta I, the allowing observation is relevant: "From the recital of the preamble it is manifest that the Ordinance provides for the trial of offences, so that proceedings in a case under the Ordinance can only be taken to cover that aspect of the case which deals with trial of cases. Hence, all what is done in this regard starting from the commencing point of the Ordinance with the taking of cognizance of offence up to the stage of the execution of the judgment is proceeding. It is thus obvious that the moment cognizance of an offence is taken by the District Magistrate acting under the Ordinance its operation commences to the exclusion of the Code and Evidence Act, by virtue of sections 3 and 28 of the Ordinance." In Ali Sher and another v. The State, it has been observed:- "From review of the entire scheme of Ordinance 11 of 1968 it becomes abundantly clear that the Ordinance does no attempt to deal with the investigation of scheduled offences, nor does it make any provision for matters arising before "cognizance" is taken by the Deputy Commissioner under section 4 of the Ordinance, such as grant of remand to Police custody or grant of bail during investigation. In regard to such matters, therefore, the procedure prescribed by the Code of Criminal Procedure would continue to apply even in the Divisions of Quetta and Kalat in view of the provisions contained in subsection (2) of section 1 and subsection (1) of section 5 of the Code." In such view of the matter I am of the opinion that the Deputy Commissioner has no jurisdiction to admit a person to bail or entertain such application before the cognizance is taken and uptill that time the normal Courts have the exclusive jurisdiction under the Code of Criminal Procedure to exercise the powers under section 496 or 197, Cr. P. C. ZAKAULLAH LODHI, ACTG. C. J. This Constitutional Petition has come up to me as a result of difference of opinion between the learned Judges of the Division Bench who heard it. The facts of the case need not be reiterated as they have been elaborately discussed in the judgment of Mr. Justice Muhammad Jaffar Naim. Suffice it to say that this Constitutional Petition challenged the order of the Member Board of Revenue whereby he allowed bail to 2nd to 5th respondents who were accused of offences under section 302/307, P. P. C. at pre-cognizance stage. Initially I heard the case on 24th August, 1981, but as the question whether the Deputy Commissioner or other functionaries under Criminal Law (Special Provisions) Ordinance (XX of 1968) (hereinafter referred to as the "Ordinance) were competent to deal with bail matters before the Deputy Commissioner had Ordinance, was a question of importance and of far-reaching consequence, I referred the case to Division Bench consisting of Mr. Justice Abdul Qadeer Chaudhary and Mr. Justice Muhammad Jaffar Nairn who heard the same and reached at divergent conclusions. Of them, Justice Chaudhary is of the view that the Deputy Commissioner, whose order was amenable to appeal and revision, figured in the proceedings only after the cognizance of the offences had been taken by the Deputy Commissioner for the purpose of trial of the case and uptill such stage the normal courts of law functioning under the Code of Criminal Procedure (hereinafter referred to as the "Code") had exclusive jurisdiction in all matters arising from a case, including the disposal of bail application, and that the stage of cognizance reached only when, in a Police case, investigation had been completed in part or in full and complete or incomplete challan along with material collected by the investigating agency-- agency had been placed before the Deputy Commissioner, so that in the light of the same he could . make up his mind whether or not the case should be sent up for trial. However on the interpretation of section 16 of the Ordinance Mr. Justice Naim was of the view that the Deputy Commissioner had powers to grant bail even before taking cognizance of the offence, and such powers were concurrent with the courts under the Code.

2. To resolve this controversy I also invited the learned Members of the Bar to address the Court as Amicus Curiae. Several learned counsel appeared and argued the case at length. Some learned Members of the Bar including Mr. Muhammad Nawaz Ahmad were of the view that the Ordinance being a Special statute, specially enacted to deal with criminal cases in some areas, singled out for its application, was to be allowed extensive field and therefore, its creation, the Deputy Commissioner, and for that matter, other superior authorities, in turn, could figure in the proceedings at the very inception of the case, if the Deputy Commissioner was approached by any one including one for bail ; and that in such an event if he attended to such move that would mean that he had taken notice of the case, and such notice, was in fact ; cognizance, and from such stage onwards the common courts of law including the High Court went off the scent. Mr. Nawaz Ahmad was further of the view that the term cognizance used in the Ordinance did not imply any particular kind of mental exercise, and it also did not require presence of complete material before him that might have been collected by the investigating agency in a case. The meanings assigned by him to this term, in short, were "awareness", "notice" or simply "knowledge" of the commission of an offence within his territorial jurisdiction, and thereafter it depended on his discretion, or even fancy, to deal with the case in any fashion, he liked, but by such "incidence" the common courts of law were debarred of all kinds of jurisdictions. However, earlier view of the High Courts, which also include my view, sitting singly, stand on different padestal, and to those I shall be adverting soon. He further convassed that the Ordinance being a special statute overrides all corresponding provisions of the Code, as such, the moment a Deputy Commissioner took cognizance of the case which, as I have described above could be in any manner and at any stage so much no that even before the completion of the investigation (in a Police case or before inquiry was completed and the record was placed before him in a private complaint etc. (the normal courts of judicature were bound to take their hands off as the case stood drawn within the exclusive domain of the Ordinance, and in the first place, the Deputy Commissioner and thereafter other superior authorities under the Ordinance gained its unshared control. There is no question of disputing with any special enactment or permitting it to govern the field for which it is meant, or it caters; but it cannot be stretched too far to enable it to travel outside its scheme and to disturb the continuance of the normal law of the land muchless to allow it to occupy the field for which it does not provide. Therefore, the accepted principle is that special enactments transgressing into the field in occupation of the laws universally applied and accepted in a country deserve strict; interpretation so that they are confined to that field alone in which departure was intended by the Legislature due to any expediency. Ordinance is at law of expediency ; hence the question of its liberal or relaxed interpretation does not arise.

3. Though Mr. Chishti, did not support Mr. Nawaz Ahmad in entirety but in matters of bail he was also of the same view. Conversely, Mr. Basharatullah, learned counsel for the petitioner and M/s. Raja M. Afsar, Muhammad Zafar, Khalid Malik, and Ehsanul Haq, learned amicus curiae, submitted that the exclusive jurisdiction of the Deputy Commissioner, by virtue of section 4 of the Ordinance, and domain of the Ordinance in general, related exclusively to the trial stage of case and was dependent upon the cognizance to be taken by the Deputy Commissioner, for which the stage was ripe only (in regard to a Police case) when sufficient material collected by the investigating agency had been placed before him by means of a complete or incomplete challan, so that upon its examination he could decide whether it was a fit case for taking cognizance. In case of a private complaint or in cases depending on his own knowledge or suspicion etc. (See Section 4 of Ordinance) such step could be advanced immediately, or if deferred until enquiry had been made, and till such that time the enquiry had been completed and case was put up to him. Second amendment of the Ordinance vide Ordinance XIV of 1980, now makes a provision for enquiry in cases of private complaints. The grounds for taking cognizance have been enumerated in section 4 of the Ordinance and the course to be adopted by a Deputy Commissioner in each case has been explained by me in Ghulam Muhammad and others v. The State P L D 1979 Quetta 1,. Learned counsel named above supported this view. The crux of their argument was that the term "cognizance" did not imply a technical act, but a considered and conscious act by a Deputy Commissioner who was required to examine and scrutinize the material upon which the act of taking re-cognizance could be based, as the trial of an accused person was followed by it and trial was not a matter to be based on Deputy Commissioner's whims. He is therefore, bound to have some cogent material before him that he could take a decision in one way or the others namely to order trial or drop the case. I agree with the learned counsel that such decision in the wake of Ordinance is crucial and it can not be allowed to the whims and caprices of the Deputy Commissioner, and this was precisely the logic behind this view in the case cited supra. Mr. Justice Abdul Qadeer Chaudhary also shares this view and while affirming it, he took pains to discuss some earlier cases also at length, of which, I too had taken benefit in that decision.

4. Although it is not entirely necessary that the scheme of the Ordinance should once again be discussed but I shall be doing so, though with precision, as Mr. Muhammad Nawaz Ahmad has approached the case with altogether a new angle. Mr. Chishti also followed him partially ; at least in the matters of bail and I would therefore take up the scheme of the Ordinance with special reference to the term "cognizance" which is pivtol in understanding this Ordinance, which I must say is unhappily worded.

5. It is undeniable that the Ordinance, except for sections 17 and 18 dealing with the topic of peace securities, is entirely procedural and has replaced the Code to the extent of corresponding provisions and no more ; And while saying so I must reiterate that special enactment deserves interpretation strictly in consonance with the reason and justice i. e. neither expanding it beyond limits within which it is intended or reasonably appears to reside or to shrink it so much that it may seem short of meeting the purpose for which it was created Keeping this cogently in view' one has to revert to the purpose in mind of its creators. The sub-continent as a whole was governed since more than l century and is still governed by the Code. However, for certain reasons ; and I need not dilate upon them, it was thought necessary to divert the course of justice in criminal as well as civil cases from the channel of normal law courts to the revenue courts, but in some parts of the country, and this part o#' the country was singled out for such treatment. The law-givers were in fact, keen to replace "court trials of the cases by some kind of "Jirga Trials" to which people, as they thought, were accustomed for a long time. Other expediencies apart. That is why the Ordinance which repairs some parts of the Code, does not cater for investigations of the offences, and for that matter, for many other eventualities that arise in a criminal case both at pre-investigation and post-decision stages. This fact is important to be kept in mind while construing its scope. Proceeding ahead the question that stares in the eyes is that if the Ordinance is silent on such matters which other law would govern them ? Naturally it should be the Code which has partially been superseded. It shall, therefore, continue to govern the cases to the extent of the left-over field. Again the logical conclusion would be that such omissions are intentional, and the Legislators have avoided to disturb the Code ; for, it can not be presumed that they were blind to the fact that a criminal case also needs investigation and that investigation is to be guided by certain procedural rules. Now reading the Ordinance with this angle in view one can clearly see that the Legislature had only in mind the introduction of a different system of trial of criminal cases in certain areas and so this Ordinance and Ordinance No. I of 1968 was introduced ; wherein firstly the over lordship of the Deputy Commissioner and other revenue courts was ensured and secondly Jirga trial was introduced ; like it happened in F. C. R, That is why matters like investigation, remand of the accused to custody confiscation of surety bonds etc. have not been provided for is the Ordinance, It is all the more reason to believe that only trial of cases by special forum outside the governance of the Code, was the sole purpose behind this Ordinance. What happened before, after or during pre-trial and post-trial stages was not of importance to them. The scheme of the Ordinance bears witness to it very clearly. Sections 3 and 28 of the Ordinance are couched in such words that they seem to be ousting the Code and Evidence Act in entirety. But that should be ascribed to bad draftsmanship; otherwise, the Legislature meant to oust the Code in that field alone with which the Ordinance is occupied. Hence, for the interpretation of the Ordinance we should begin as under. Before the preamble the opening words at the inception of the Ordinance are :-- "An Ordinance to make special provisions for trial of certain offences in certain areas of West Pakistan." Although these words do not from part of the Ordinance but they do speak of the Law-makers mind, that they intended to make special arrangements for trial of offences in certain areas only. Then I quote the preamble which again refers to trial of cases alone : "Preamble.-Whereas it is necessary to make special provision for trial of certain offences in certain areas of West Pakistan to meet the special requirements of those areas . . . . . . . . " preamble is also not strictly a part of the Ordinance, but its language is relevant in generally ascertaining the intention of the law makers. It is quite clear and plain, and speaks of trial only. Now I would refer to section

3. It again uses the word trial while excluding jurisdiction of other courts with regard to trial of scheduled offences. It reads as under : "

3. Trial of scheduled offences.-(1) Notwithstanding anything contained in any other law for the time being in force, no scheduled offence shall be tried except in the manner provided by this Ordinance. (2) Except as otherwise provided in this Ordinance, the provisions of the Evidence Act, 1872 (1 of 1872) and the Code of Criminal Procedure, 1898 (V of 1898), shall not apply to any proceedings under this Ordinance." The above references from the Ordinance coupled with the fact that it is conspicuously silent about the requirements of pre-trial stage, and many other miscellaneous matters, leaves one in no doubt that a special system was intended to be introduced only for the trial of cases. Proceeding further, we find in section 4 that Deputy Commissioner is named as sole authority to take cognizance of a scheduled offence whereafter he would appoint a Tribunal ; and although it is not mandatory to nominate the members immediately but in practice these are simultaneous acts, .as otherwise the purpose of taking cognizance remains incomplete. The manner of taking cognizance are mere repetition of the grounds as mentioned in section 190 of the Code. It is thus clear that the Ordinance caters for trial of scheduled offences and such trial is within exclusive jurisdiction of the Deputy Commissioner, who alone shall take. cognizance of a scheduled offence. Bail is an[ ancillary matter which crops up immediately with the arrest of a person; and may continue uptill the conclusion of the trial. But this too is bifurcated into pre-trial and post-trial, stages. Accordingly the Court which is ceased of 0 the matter at these stages shall be the Court who will decide bail applications also. One should not be misled by the phraseology used in section 16, with regard to the Deputy Commissioner and President of the tribunal's powers to grant bail that is that they shall also have "same powers" as court under the Code. This provision does not determine the scope of application of the Ordinance but is subservious to it, and is bound to come into play when the domain of the Ordinance starts.

6. Before proceeding ahead word or the term "cognizance" in the context of the Ordinance would be of benefit. Dictionary meanings of the word "cognizance" are "knowledge", "notice" or becoming conscious of or to be "aware" (Chamber s Twentieth Century Dictionary), Taken this construction of the term in common place meanings it can be said (as w also argued by Mr. Muhammad Nawaz), the no sooner the Deputy Commissioner gains knowledge about the omission of an offence or is aware o it or it comes to his notice, whether through a bail application or by au' other move, he will be deemed to have taken cognizance of the offence. But in legal parlance generally, and with reference to the Ordinance specially, by such process he is simply cognizant of it or, he knows about it. Taking of cognizance and being cognizant about a fact are not the same things. Since taking of cognizance, under section 4 of the Ordinance means taking decision to order trial of the case by appointing members of the tribunal; it must depend on something more than mere knowledge and the later can only be upon the examination of the material collected and placed by the investigating agency before him so that he could make up his mind to act in one way or the other. Since bail application can be moved at the earliest stage when no such material is yet available, therefore, at that stage the Deputy Commissioner cannot take cognizance, but can only be cognizant or aware about the commission of an offence. Consequently as the jurisdiction of the Deputy Commissioner starts with the taking of cogizance, and the Ordinance itself comes into picture with such overt act, therefore, before this act the Deputy Commissioner is non existent in a criminal case in all maters including bail, However once he takes cognizance of an offence in the manner discussed above, he has sole jurisdiction with regard at the case. He excludes all other courts in all matters pertaining to the trial and he or the president of the tribunal shall thereafter deal with bail matters also ; and that too to the exclusion of all other courts. Accordingly the term cognizance when used in the Ordinance is not be construed in its ordinary meaning but shall convey special meanings within the framework of the Ordinance. Similarly all other terns used in this Ordinance, of which one is "proceeding;" shall also be subject to the scheme of the Ordinance. An enactment not to be interpreted by the meanings which a word or two used her-J, and there generally carry ; rather the words used in an enactment are the assigned meanings (if capable of giving such meaning) in consonance with the scheme of that enactment. However if such agreeable meanings are not possible the position might be different ; but that is not the case here, for, those words unambiguously explain themselves when read in the light of the Ordinance. Accordingly when the word cognizance is to be construed with reference to the Ordinance, it would mean making of mind by the Deputy Commissioner as to whether or not trial of a scheduled offence should take place. Such decision is possible only when sufficient material is available, before the Deputy Commissioner so that by assessing it he could take a decision in such directions. In Police cases such material care be made available only when investigation has made some progress and an incomplete or complete challan is put up before him. 1n case of a private complaint cognizance can follow immediately if material available with the complaint was sufficient to make up mind to order the trial or drop it. In later cases if, material was not sufficient, taking of the cognizance could be deferred and an enquiry ordered .for the second amendment, heretofore referred, provided for. Similar would be the case when the Deputy Commissioner initiates proceedings on the basis of his own knowledge or suspicion etc. Such were the circumstances in appreciation whereof the Ordinance was held to be catering for trials only ; leaving the field of investigation etc. to be looked after by the Code, in State v. Syed Fazal Hussain (Civil Revision No. 6 of 1968) and in Ali Sher v. The State (1). In those cases it was held that in the Ordinance the Deputy Commissioner figured in the proceedings when trial stage war ripe and eversince such has been the consistent view.

7. Mr. Chishti learned amicus curiae also pointed out to the word "proceedings" occurring in sections 3 and 28 of the Ordinance whereby application of the Code and jurisdiction of normal courts was barred. Indiscriminate use of this word is also capable of creating some confusion ; but only when it was read in seclusion. Learned counsel assigned it ordinary dictionary meanings and contended that all or any action in relation to a case being "proceeding" the moment any action was taken by a Deputy Commissioner the Code would cease to govern the case. In section 3 of the Ordinance the application of the Code and the Evidence Act is completely excluded and the words used are " . . . . . shall not apply to any proceedings under this Ordinance . , . .". While section 28 safeguards all actions taken under the Ordinance by ousting the jurisdiction of the normal courts and making such actions unquestionable. Mr. Nawaz Ahmad also relied upon the dictionary meanings of the term "proceeding" i.e. "hold bundle of actions taken in a case from the first stage of the case to the last stage of the case. He argued that by the use of this word all actions under the Code whether they were at the investigation stage or afterwards, in the wake of bail or any other matter, were sacrosanct and outside the scope of interference of normal courts and that once a bail application was heard or even entertained by a Deputy Commissioner, it was a "proceeding" initiated ,by him and, it ousted the normal courts by mischief of section 3 of the Ordinance and was unassailable before normal courts by dint of section 28 of the Ordinance. All' Sher's case referred to supra as well as in the earlier case decided by me, the word "proceedings" was elaborately discussed. I must admit that this "word", when interpreted generally in connection with a criminal case, would carry vast meanings and shall cover any action taken in a case from its inception uptill the execution of the judgment, but as I. have discussed above ; with reference to the term "cognizance", this term is also liable to be construed in the context of the .Ordinance and is not to be assigned, relaxed or common place meanings. At the cost of repetition it may be emphasized once again that this or any other word used in the Ordinance would not determine the scope of the Ordinance, rather the position would be converse. Thus in order to give this term just and reasonable meanings it shall be taken to be subservient to the scheme of the Ordinance, and as it caters for trials only the term proceeding it would cover all proceedings in that behalf and during its continuance. It is regrettable that scientific and accurate use of words has altogether been missed in the entire scheme of the Ordinance and that has resulted into confusions thereby consuming much of the public time in interpretations, constructions and expounding by the superior Courts.

8. Now adverting to the provisions of bail I may first reproduce the relevant section itself : "Section

16. Bail.- P L D 1970 Kar. 790, A scheduled offence shall be bailable or non bailable according as the same is bailable or non-bailable under the Code of Criminal Procedure, 1898 (V of 1898) and the Deputy Commissioner shall have the same power of granting bail to a person or persons accused of an offence as a Court has under that Code. (2) The President of a Tribunal may, in regard to a case referred to the Tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section." It was mainstay of Mr. Muhammad Nawaz Ahmad and Mr. Aslam Chishti that by the language used in section 16 the Deputy Commissioner is introduced from the very inception of the case. They relied upon the words "same" and "a person or persons accused of an offence" and argued that since the Deputy Commissioner has same powers, therefore, he cannot like any Magistrate introduced in a case by the Code at its earliest stage and because such powers are with regard to an accused person, therefore it is all the more reason to believe in their availability to the Deputy Commissioner from the stage the accusation is brought against a person and till his fate is finally decided. Furthermore, according to them, the word "same" has been used with purposes to enable the Deputy Commissioner to grant bail to an accused person like a Magistrate of the First Class under the Code. Mr. Chishti was however, of the view that such powers were concurrent with normal Courts whereas Mr. Nawaz excluded the normal Courts altogether and canvassed that once Deputy Commissioner put his band on a case it was drawn into the heirarchy of the Revenue Courts exclusively. It is true that a person was accused of an offence from the stage the accusation was brought against him and as uptill the decision of the case ending in his acquittal or conviction, he continued to be an accused person.

8. Dealing with the word "same" first, suffice it to say that it is explanatory of the powers of the Deputy Commissioner in the matters of bail but such powers would be exerciseable from the stage when the Deputy Commissioner assumes exclusive jurisdiction to deal with the case. Subsection (2) of section 16 also invests-the President of the Tribunal with powers to grant bail but it is pertinent to note that they are exerciseable only after the reference has been made. Similarly such powers are exerciseable by a Deputy Commissioner only when he figures in the proceedings. Once cognizance has been taken by the Deputy Commissioner in the manner, heretofore mentioned, the common Courts of judicature including the High 7 Court shall cease to have any kind of jurisdiction in the matter. Thus only the Deputy Commissioner or his nominated President of the Tribunal shall be the authorities to deal with bail matters. This does not imply that like a Magistrate under the Code before whom the accused is produced (See section 497, Cr. P. C.) and who also has the powers to remand or release him on bail the Deputy Commissioner shall also be able to entertain bail application even though neither the accused is produced before him nor he can remand the accused, for, it is yet a distant stage when he would figure in the proceedings. Since this point has been elaborately discussed by my brother Mr. Justice Choudhary Abdul Qadeer I need not dilate upon it. The crux of the matter, therefore, is that the powers of bail are definitely same as reside in the Courts under the Code, but the Courts under the Code come into picture immediately after the commission of an offence whereas Deputy Commissioner under the Ordinance makes appearance much later ; U hence he shall have same powers with regard to the accused person ; but after he has taken cognizance of the matter and not before. Then these words are subject to the scheme of the Ordinance rather subservient to it. The argument that by virtue of these words the Deputy Commissioner steps in the case at the initial stage has no force.

9. The conclusion of above discussion is that 1 find myself in agreement with Mr. Justice Abdul Qadeer Choudhary who has held that the Deputy Commissioner has no jurisdiction to admit a person to bail before the 'cognizance was taken by him in the abovesaid manner and that the normal Courts shall continue to have exclusive jurisdiction in the matter uptil that time. He has omitted to decide the fate of the petition : but naturally by expressing such view he means to allow the petition. As to the instant case suffice it to say that since the proceedings had not yet been drawn within the ambit of the Ordinance, neither the Deputy Commissioner nor the Superior authorities under the Ordinance were in picture. The order of bail passed by the Member, Board of Revenue is without jurisdiction. The petition is accordingly allowed with no costs and the impugned order of the Member, Board of Revenue is declared a nullity in the eyes of law. The order is, therefore, set aside and the respondents are to be remanded to custody. They may, however, move the appropriate Court under the Code for bail, if cognizance of the offence has not been taken so far or in the alternative to the Deputy Commissioner, if they desire so.

10. Constitutional Petition No. 6 of 1980 was also kept alongwith this petition and it shall now be decided in the light of this decision. Before parting with the case I must express my appreciation-for the valuable assistance provided to me by the learned counsel appearing in this case. S. A. H. Petition accepted.