P L D 1977 Supreme Court 273 (PLP)

MUHAMMAD YAQOOB ALI, C. J.--,The petitioner seeks leave to appeal from the orders passed by the Sind & Baluchistan High Court on 17th March 1976,_ whereby Cr. Misc. Applications loos. 250 and 253 of 1976 filed by the petitioner for grant of bail were dismissed. The petitioner is charged on two counts under rule 42 (6) (e) read with rule 49 of the Defence of Pakistan Rules, 1971, and we were informed by the Advocate-General, Sind, that the Special Tribunal has taken cognizance of both the cases. The facts necessary to be stated are that Ch. Zahoor Ilahi. petitioner, Member, National Assembly, and a Member of the Opposition Party, was arrested on 6-2-1976 by the Punjab Police in connection with the murder of Chaudhri Muhammad Anwar Samman. On 12-2-1975, this Court allowed him bail, but before the order was executed or soon thereafter he was arrested by the Karachi Police on 13th February 1976, in a case registered against him earlier under section 16 of the West Pakistan Maintenance of Public Order Ordinance XXXI of 1960. He eras taken to Karachi to appear before a local Magistrate. ?On the 23rd February 1916, the Additional Sessions Judge, Karachi, granted bail to the petitioner, but he was not released by the Sub-Divisional Magistrate as in the meantime two more cases had been registered against him on 10th February 1976, under rule 42 (6) (e) read with rule 49 of the Defence of Pakistan Rules. 1971. The accusation in the first case registered at Police Station, Civil Lines, Karachi, is that when asked by the S. H. O., to accompany him to the Court of the Magistrate, Ch. Zahoor Ilahi declined to go and held out a threat that until he was allowed to go home the lives of his relations will be endangered and no mercy shall be shown to there. He called Pakistan as Pakistan and admonished the S. H, O. not to Sec Mme a stooge of the Traitors of the Muslim Government and that "time shall tell his future and that he did not expect any justice from the Courts in Pakistan and from the Courts in the Province of Sind in particular". The accusation in the second case is that while standing in the compound of City Courts. Karachi, he addressed people who had gathered around him and said he did not recognise the Courts which were worth two pennies. He is farther alleged to have said : "our time will come and we shall cope with them. I have prepared that lists of Magistrates and Police Officers who are toeing the line of present Government. We will not leave them, The P. P. P. Government is of Sind his and this Government has separated East Pakistan from West Pakistan and wants to finish the remaining Pakistan also. `The end of present Government is very near. Before this Government finishes the present Pakistan we shall overthrow this Government. We are awakened and days of this Government are over. This Government will have to answer." On 11th Match 1976, the petitioner filed an application in the Sind & Baluchistan High Court for release on bail. A learned Judge rejected the application summarily on 17-3-1976 on the ground that by virtue of section 13 of the Defence of Pakistan Ordinance XXX of 1971 hereinafter referred to as Ordinance XXX he had no jurisdiction to grant bail. He placed reliance on a Division Bench judgment of this Curt in Muhammad Yasin v. State (Cr. Bail Application No. 101 of 1974) in which following the decision of this Court in Muhammad Akram v. The State P L D 1963 S C 373, it was held that once the case was referred to a Special Tribunal superior Courts had no jurisdiction to interfere, The P. S. L. A. No. 26-R of 1976 is directed against the refusal or bail by the High Court to the petitioner iii the first case. In the other cage registered against the petitioner under rules 42 and 49 of the Defence of Pakistan Rules, Ch. Zahoor Ilahi, at first, applied for bail before arrest to the Tribunal. The application was rejected by the Tribunal on 10-3-1976. He then applied for bail in the High Court on 11-3-1976, but this application too was dismissed by the learned Judge alongwith the aforementioned application on 17th March 1976, with the observation that the petitioner should apply to the Special Tribunal for bail as the earlier application was for bail before arrest. P. S. L. A. No. 27-R of 1976 arises from this order of the High Court. ??????????? Rule 42 of the Defence of Pakistan Rules, 1971, inter alia defines "prejudicial act" as " 42??????????????????????????????. (6) "Prejudicial act" means any act which is intended or is likely- ???????????????????????????????. (e) to bang into hatred or contempt, onto excite disaffection towards the Government established by law in Pakistan ;'. Under rule 49, a person who commits an offence defined in Rule 42 (6) (e) is liable to imprisonment for a serm extending to five years. The petitioner is placed before a Special Tribunal for trial constituted under section 8 of Ordinance XXX of 1971. Section 13 (1) (b) of the Ordinance excludes the jurisdiction of ordinary Courts including High Courts from interfering in certain cases with any order and sentence passed and proceedings undertaken by the Special Tribunal. Ordinance XXX of 1971 is a continuation of the earlier Laws on the subject of Defence viz. Defence of India Act IV of 1915, the Defence of India Act XXXV of 1939 and the Defence of Pakistan Ordinance XXIII of 1965. To comprehend the provisions of Ordinance XXX, one may profitable refer to the said statutes and some of the cases decided under them. The Defence of India Act IV of 1915 was enacted by the Governor General-in-Council on 19-3-1910 "to provide for special measures to secure the public safety and the defence of British India and for more speedy trial of certain cases". The Act was to remain in force during the continua of war and for a period of six months thereafter. Section 2 conferred on the Governor-General-in-Council the power to make rules for the purpose of securing the public safety, the defence of British India and as to the powers and duties of public servants and other persons in furtherance of the Act. Clauses (a) to (1) specified the purposes for which rules might be made. Subsection (2) of section 3 empowered the Local Governments to direct accused persons to be tried by Commissioners. Section 4 laid down the qualifications of Commissioners, viz. they shall be persons who have served as Sessions Judges for three years or are persons qualified to be Judges of High Court. Procedure of the Commissioners was laid down in section

5. The succeeding sections 6 and 7 specified tile powers to the Commissioner and application of Criminal Procedure Code. Section 8 was so worded a to exclude the jurisdiction of ordinary Courts including a High Court from interfering with any order or sentence passed by the Commissioner. Apart from the object of successful prosecution of war one of the reasons for enacting this law was the outbreak of lawlessness in certain areas in British India. The Defence of India Act was, in turn, an offshoot of the Defence of Realm Act, 1914 (Chapter 29, George V) which consisted of only one section empowering His Majesty in Council during the continuance of the war to issue regulations as to the powers and duties of the Admiralty and Army Council and of the members of His Majesty's forces and other persons acting in this behalf and for securing public safety and the Defence of the Realm. His Majesty was further authorised to order trials by Courts Martial and punishment of persons contravening any of the provisions of the Regulation in like manner as if such persons were subject to Military Law and had in active service committed an offence under section 5 of the Army Act. in 1915, an Act to amend the Defence of the Realm Act, 1914, was passed (Chapter 34, V & VI George V) which conferred on the British subjects charged with offences under the Regulation the right to be tried by Jury in Civil Courts. Both the Defence of Realm Act, 1914, and the Defence of India Act, 1915, were enacted to meet the war emergency and were to expire six months after the war. As trials for offences against the Regulation by persons other than members of His Majesty's forces were also to be held by Court Martial it followed that there will be no appeal from any order or sentence passed on them for in Britain it has never been, in doubt, that the Civil Courts including the High Court of England, the House of Lords have no jurisdiction to call in question any order or sentence passed by a Court Martial. It was for this reason that to mitigate this stringency of law, a special dispensation was made in 1915 in favour of the British subjects by providing that instead of being tried by Courts Martial they may opt for trial by Civil Courts. Act IV of 1915, however, followed the unamended Defence of Realm Act, 19:

4. The powers conferred on the Commissioners under section 6 and exclusion under section 8 of the jurisdiction of all ordinary Courts to interfere with any order of sentence passed by the Commissioners equated theirs proceedings with the proceedings of a Court Martial. To achieve this end it was provided : "notwithstanding the provision of the Code of Criminal Procedure or of any other law for the time being in force or of anything having the force of law by whatever authority made or done there shall be no appeal from any order or sentence of Commissioners". The bar was further extended by including the clause that "no Court shall have authority to revise any such order or sentence or to transfer any case from such Commissioners, or to make any order under section 491 of the Coda of Criminal Procedure, 1898, or have any jurisdiction of any kind in respect of any proceedings under this Act." The object of these provisions, undoubtedly, was to exclude altogether the jurisdiction of civil Courts to interfere with the proceedings of the Commissioners and the orders and sentences passed by them. The provisions of Act IV of 1915 were considered by a Full Bench of the Patna High Court in Sheo Nandan Prasad Singh v. Emperor AIR1918Pat.103 and it was held that in view of the bar provided in section 8 High Court had no power of superintendence over Commissioners. We will examine this case in some detail a little later. The Defence of? India Act, 1939, was passed during the Second World War. It came into force on 30th September 1939, and was to remain in force during the continuance of the war and for a period of six months thereafter. Earlier on 24th August 1939, the Emergency Powers (Defence) Act was passed by the Parliament which was much more celebrate than the Defence of Realm Act, 1914. The Act was to remain in force till His Majesty-in Council declared that the emergency that was the cause of the passing of the Act had come to an end. This Act contained a new clause empowering detention of persons whose detention appears to the Secretary of State to be expedient in the interest of the public safety or the defence of the realm. The well-known case of Liversidge v. Anderson and Morrison (1941)2AER612 decided by the Hose of Lord: turned on the interpretation of this clause. We shall have an occasion to refer to this case a little later. Section 2 of the 1939 Act conferred on the Central Government the power to make rules The' list of the subjects on which Rules could be framed was much more comprehensive than the list in section 2 of the Defence of India Act, 1915. There was no mention of `Bail' in the long enumeration of subjects in section

2. This led to a controversy in Indian High Courts about the vires of rule 130-A which laid down "130-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no person accused or convicted of a contravention of these rules, or any order made thereunder shall, if in custody be released on bail or on his own bond, unless (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application, and the contravention is of any such provision of these rules or of any order made thereunder as the Central Government or the Provincial Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention." (Rule 210 framed under Ordinance XXX of 1971 is in identical terms.) In re : Surajlal Hiralal Majumdar and others A I R 1943 Bom. 82 a Division Bench of the Bombay High Court held that rule 130-A had the effect of repealing section 496 of the Code in so far as it divests the Court of its discretion to grant bail even in cases of bailable nature. It was further held that Legislature can impliedly repeal Acts by a later enactment like any other statute even if the repeal introduces stringency of procedure and takes away a privilege. In re : V. Bhuvaraha Iyengar A I R 1942 Mad. 221 (2) a Bench of the Madras High Court held that if the Central Government considered that it is in public interest to frame the rules regulating grant of bail the general powers given by subsection (1) of section 2 covered it. The learned Judges observed ; "If clause (b) contains a valid provision the Court must be satisfied that there are reasonable grounds for believing that the accused is innocent before releasing him on bail. It is said that this provision contravenes the fundamental principle of English law that a person is presumed to be innocent until it is proved that he is guilty and that the Defence of India Act and the Rules framed thereunder do not permit of a departure from the provisions of the Code of Criminal Procedure with regard to bail applications. With regard to the first contention, it is to be observed that neither the Act nor the rules indicate any attempt to depart from the principle of English Justice that a person is presumed to be innocent until he has been proved to be guilty. Rule 130.A merely indicates that where a person is accused of an offence under the rules the Court may not liberate him on bail pending the trial, except when it has reasonable ground to believe that he is innocent. When the Court comes to decide the case, it must acquit the accused if the prosecution has failed to establish the charge." The vires of the Rules framed under section 2 of the Act was as a whole upheld by various High Courts of India. See Meer Singh v. Emperor A I R 1941 All. 321, In re : V. Bhuvarahj Iyengar, Gopal Narain Saksena v. Emperor A I R 1943 Oudh 227 and In re : S. Govind Swaminathan and others A I R 1943 Mad

714. There is one exception ; Keshav Talpade v. Emperor AIR 1942 F C 1 in which the Federal Court of India struck down rule 26 as ultra vires in so far as it empowered the Government to detain a person who was not reasonably suspected in the mariner required by clause (x) of subsection (2), but the (Government considered that they may do something prejudicial hereafter. On this ground the order of detention was struck down as illegal, but clause (x) was, later on, amended and its scope was made wider to cover rule

26. Section 8 of the 1919 Act made provisions for constitution of special Tribunals and laid down the qualifications for their? specified jurisdiction of Special Tribunals in almost section 3 of the Defence of India Act, 1915, namely, of the Local Government any person accused of offence under any rule made under section 2 or punishable with death, transportation for life or which may extend to 7 years .Section? 13 Special Tribunals and or for life or imprisonment term no the? Code or to exercise respect of any proceedings of a Special Tribunal. No order made in exercise of any power conferred by shall be called in question in any Court. In the opinion of Calcutta High Court in S. N. Mukherjea v. Sir (s. Russel A I R 1942 Cal. 51 an order was equally called in question when it was suggested that it was made without power to make it or made in improper exercise of the power to make it. This indeed was too narrow a view and the Federal Court of India did not approve of this dictum. We will presently examine the facts of this case and the dictum of their Lordships. A Full Bench of the Lahore High Court in Lahore Electric Supply Co. Ltd. v. Province of Punjab A I R 1943 Lah. 41 also expressed a contrary view and held that the jurisdiction of civil Court was not burred if an order under the Act or the Rules was ultra vires or if the order was not made bona fide, but for some collateral object. This was a case in which the Lahore Electric Supply Company had been requisitioned and subsequently acquired under rule 75-A of the Defence of Pakistan Rules. The owner' of the electrical concern had earlier filed a civil suit and obtained a stair order against the Provincial Government from interfering with their possession. The orders passed by the Provincial Government acquiring the Electric Supply Company was set aside by the High Court on the finding that though expressed to be an order under the Defence of India Rules it was in fact made for a collateral purpose namely to defeat the process of the civil Court. In arriving at this conclusion Young, C. J., relied in this behalf on Secretary of State v. Mask & Company I L R 1940 Mad, 599 and Rex v. Governor of Brixton Prison (1916) 2 K B

742. In the first case Lord Thankerton observed ''It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily interred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with." In the second case Lord Reading said ; "if we are of opinion that the powers were being misused, we should be able to deal with the matter. In other words, if it was clear that an act was done by the executive with the intention of misusing those powers, this Court would have jurisdiction to deal with the matter." After quoting sections 15 and 16 of the Defence of India Act XXXV of 1939, the learned Chief Justice remarked "The learned Advocate-General on behalf of the defendants at first argued that section 16 was an absolute bar to this Court questioning the requisition or acquisition order. Mr. Mehr Chand on the other band argued that both these orders were invalid because they were not mace bona fide or honestly, that is, they were not made for the purposes of the war car to maintain supplies and services, but were made to defeat the plaintiffs' rights and the suit filed by them. Subsequently, the learned Advocate-General admitted that if the plaintiff?s could show and the Court came to the conclusion, that the orders were passes for some collateral purpose, that is, they were not made bona fide for the purposes alleged by the order, section 16 would be no bar. In other words, if this were so, it could not be maintained that the Provincial Government had formed the opinion indicated by the order, it would not therefore be an order made under the Defence of India Act and therefore section 16 would not apply and the order would be void. Mr. Mohr Chand further argued that the requisition order served under rule 75-A covered a. commercial undertaking or a going concern and as such the order did not come within rule 75-A and was ultra vires. With regard to the first point that section 16 is no bar, it is unnecessary to deal with this at any great length in view of the fact that both parties are in agreement that if an order is made under this Act, which is not bona fide, section 16 is not a bar to the Court dealing with the matter. The authorities are perfectly clear." In Keshar Talpade v. Emperor. Mr. Talpade was detained under Rule 26 of the Defence of India Rules. He filed a writ of habeas corpus under section 491 of the Code of Criminal Procedure in the High Court of Bombay which wits in view of the bar provided by section 13 of the Defence of India Act, 1939, dismissed. He thereupon filed an appeal in the Federal Court-of India denying that he had acted in any manner prejudicial to the defence of British India; the public safety, the maintenance of public order and the efficient prosecution of war. On the contrary, he said that he believed in giving unqualified aid to the efficient prosecution of war. It was not disputed that Mr. Talpade was detained under rules 26 and 129 of the Defence of India Rules. The order was passed with a view to preventing him from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of war. Mr Talpade disputed the vires of Act XXXV of 1939 and also Rule 26 framed under section 2(2) under which he was detained. The Federal Court held that the Act was covered by Entry No. 1 of List I of the Government of India Act, 1935, which gave the Central Legislature power to legislate with respect to preventive detention in British India for reasons of State connected with defence and certain other specified matters. Rule 26 under which Mr. Talpade was detained was, however, found to be ultra vlres of clause (x) of section 2(2) of the Act, Gwyer, C. 1., observing "We approach the consideration of these questions with the anxiety which a Court of justice must always feel where the liberty of the subject is concerned ; but we have at the same time to remember that the country is at war and that in war as it is known today every Government in the world has found it necessary to arm itself with powers untaught of and often unknown in time of peace. Ana though it is well to remember that, as vies said in one of the judgments delivered in a case before this Court some years ago, Courts of law ought to abstain from harsh and ungenerous criticism of acts done in goad faith by those who bear the burden and responsibility of government, especially in times of danger and crisis, we are not on that account relieved from the duty of seeing that tae executive government does not seek to exercise powers in excess of those which the Legislature has thought fit to confer upon it, however drastic and far-reaching those powers may be and however great the emergency which they are designed to meet. Nevertheless, we must constantly bear in mind the purpose of the towers given, since to use the words of Lord Macmillan in 1942 A C 206, at p. 292-it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is iii accordance with a general rule applicable to tire interpretation of all statutes or statutory regulations in peace time as well as in war time.? In Liversidge v. Sir John Anderson and another 1942 A C 206, House of Lords held : "Where the Secretary of State, acting in good faith under reg. 18-B of the Defence (General) Regulations, 1939, makes an order in which he recites that he has reasonable cause to believe a person to be of hostile association; and that by reason thereof it is necessary to exercise control over him and directs that that person be detained, a Court of law cannot inquire whether in fact the Secretary of State had reasonable grounds for his belief. The matter is one for the executive discretion of the Secretary of State." On comparing rule 26 with Regulation 18-B, Gwyer, C.J., brought out in the following passage the difference in the operation of the detention law in Britain arid detention law in India "It might well be argued that since the apprehending or detaining authority could be any person in India whom the Central Government chose to select when it framed its rules, it can never have been intended that any person could be detained without trial and by mere executive act unless there were reasonable grounds in fact for suspecting that be had brought himself within the scope of para. (xi) . It will be said that the Central Government must be trusted only to make any rules vesting this power in responsible persons or authorities The Central Government has in fact vested them in itself and in the Provincial Governments, that is to say, the Governor. General-in-Council and the Governor and those who advise him. whether Ministers or others. In the United Kingdom the number of persons detained under Resolution 18-B, according to public statements made from time to time, has not been so large as to make it impossible for the Secretary of State to consider personally each case. We may take judicial notice of the fact that the numbers in India on the other hand have been. comparatively speaking. very large ; and it is difficult to suppose that the Governor-General-in-Council or the Governors with their advisers have always been able to give their personal attention to each case ; so that the consideration of the facts must have been left in very many Instances, to put it no higher, to officials, sometimes no doubt highly placed, but not necessarily so. In these circumstances those in whom the legal right to detain is vested might not always find it easy to form an opinion of their own whether the person apprehended or detained is reasonably suspected or not. If this be so. it would certainly seem that the more natural construction of the words of para (x) is that there must be suspicions which are reasonable in fact and not merely suspicions which some n,9 yet unspecified person or authority might regard as reasonable." With the exception of the two cases, cited above, which stand on a different footing there are a large number of decisions in which the bar contained in section 13(1) (b) of Act XXXV of 1939 was held to be absolute. There is also a case in which the question of grant of bail by a High Court was directly raised and answered in the negative. The earliest case is Sheo Nandan Prasal Singh v. Emperor AIR1918Pat.103 to which reference has been made earlier. The petitioner was convicted by the Commissioner appointed under section 8 of Act IV of 1915 on charges under section 395 read with section 59 of the Penal Code and sentenced to seven years rigorous imprisonment and forfeiture of his immovable property. He petitioned to the High Court for setting aside the conviction and sentence on the grounds that (i) the previsions of the Define of India Act were beyond the legislative competence of the Governor-General-in-Council ; and (ii) that the Act wag invalid as it involved abrogation of the functions especially to the operative existence of all the High Courts ; and (iii) that the trial of the Petitioner was not under the provisions of the Criminal Procedure Code, but under certain rules framed by the Government of Bihar and Orissa which rules were wholly ultra virus. Dawson-Miller, C. J., delivering the judgment of the Court found the Defence of India Act as Tetra vires of the legislative powers of the Governor-General-in-Council under Section 22 of the Indian Councils Act. 1961. We need not examine this part of the judgment as the vires of the Ordinance XXX of 1971 was not disputed before us by the petitioner's counsel. Dealing with the contention that the power of superintendence conferred by section 15 of the Indian High Courts Act, 1861 (24 and 25 Vic. c. 104) could not be taken away by an Act of Indian Legislature, the learned Chief Justice found that the jurisdiction was subject to the legislative powers of the Indian Council. Similarly, the power granted to High Courts by Letters Patent was subject to the legislation powers of the Governor General in-Council. The contention that High Court has exercised powers of superintendence in case? where it has no appellant jurisdiction was considered? to be well founded except w; ere jurisdiction is excluded by competent legislative authority. The petition was rejected on the ground that by virtue of section 8 of the Defence of India Act, 1915 High Court, had no jurisdiction to superintend the proceedings of the Commissioners wider the Act. Another case decided by the Patna High Court Gopal Marwari and others v. Emperor A I R 1943 Pat. 245 was under the Special Criminal Courts Ordinance It of 1942 which empowered the Central Government and the Local Government to set up special Courts to try such offence or class of offences as the Provincial Governs ant or a servant of the Crown empowered by the Provincial Government may by general or special order in writing direct. The Special Courts were to function as substitute for Special Tribunals under Act XXXV of 1939. Section 3 of the Ordinance made provision for Constitution of Courts of special Judges, Special Magistrates and Summary Courts. Section 26 of the Ordinance provided as under : "

26. Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court" A large number of Persons petitioned in the High Court against their convictions by a Special Magistrate for offences under the Defence of India Rules. By a lengthy judgment the Special Bench of the High Court allowed some of the petitions and rejected others. A number of legal issues were debated in the cage of which only two are relevant for our purpose. The order passed by the District Magistrate under section 10 of the Ordinance appointing Special Magistrate "for all cases in the District" was held to be not legal. On this fining the Special Bench held that High Court can interfere under section 491, Cr. P. C., and put a stop in the petitioner's detention. Observed Meredith J., "in law the petitioner -s trial and conviction being void, he has not been, tried and convicted. It is merely a question of indicating the position and nothing in the provisions of section 26 can prevent the High Court from indicating that position. It is that the petitioner is being detained in custody by the executive authority as a convicted person when they have no legal authority to do so". Other petitions in which there was no want of jurisdiction were dismissed with the observations ; 'Thus, there is clearly no power to issue the writ. But assuming that there is power, section 26 of the Ordinance has unquestionably taken it away. Mr. Pal argues that section 26 was meant merely to refer to Courts other than the High Court, but the reference therein to section 491, a power exclusively enjoyed by the High Courts, is conclusive against him on this point. Next, however, Mr. Pal relies upon the well known principle established in relation to the issue of the writ by King's Bench, that the power could be taken away by express negative words alone Certiorari can only be taken away by express negative words. It is not taken away by words which direct that certain matters shall be 'finally determined' in the inferior Court, nor by a proviso that 'no other Court shall intermediate' with regard to certain matters as to which jurisdiction is conferred on the inferior Court. (Halabury's Laves of England, Edn. 2, Vol. 9, para. 1455, p. 861). Gopal Marwari and others v. Emperor A I R 1943 Pat. 243: "Certainly as regards certiorari there are no express words in section

26. There is no reference to certiorari. But here the decision of the Privy Council in Annie Besant's case, to which I have already referred, is conclusive. In Annie Besant's case their Lordships of the Privy Council bad held : 'But assuring that the power to issue the writ remains, and that it might be exercised notwithstanding the existence of procedure by way of revision, section 22 of the Indian Press Act, (I of 1910) is still to be considered. By that section 'Every declaration of forfeiture purporting to be made under this Act shall, as against all persons, be conclusive evidence that the. forfeiture therein referred to has taken place, and no preceding purporting to be taken under this Act shall be called in question by any court. except the High Court on such application as aforesaid, and no civil or criminal proceeding. except as provided by this Act, shall be instituted against any person for anything done, or in good faith intended to be done, under this Act. It was contended on behalf of the appellant that as the writ of certiorari was not in terms said to be taken away by the section, the right to it remained, notwithstanding the very express. but still general words, used. However, that might be according to English law where there is no such revision procedure as in India, their Lordships see no reason for narrowing the express words of the India Act . . . . . Even were it to be said that the order was of that quasi judicial kind to which certiorari has sometimes been applied in England or in India, the Press Act may quite reasonably have intended to take it away, and there is no reason why full effect should not be given to its language. ************************************************************************* Upon this reasoning full effect must equally be given to the words of section 26 of the Ordinance, which are perfectly clear and definite and includes the words : "No Curt . . . . . shall have any jurisdiction of any kind in respect of any proceedings of any such Court." Mr. Pal has not challenged the competence of the Indian Legislature to enact a provision like this." There is a remark in this case that though the accused were tried? convicted by the Special Magistrate, their initial arrest and detention was under the Code. From this statement it can be inferred that a person arrested and charged under the Defence of Pakistan Ordinance can be given bail by ordinary Courts until the Special Tribunal has seized cognizance of the case. Our brother Dorab Patel. J., haq from tic Synch of the Sired 8c Baluchistan High Court so held in Musahib Ali v. State P L D 1975 Kar.

909. Ordinance XXX of 1971 and the Rules framed thereunder are a replica of the Ordinance XXIII of 1965 and the Rules thereunder: Before construing the provisions of Ordinance XXX of 1971 we may, therefore, examine some decided cases under the former Ordinance as well as cases decided under other Laws in pari materia which were operative during the existence of Ordinance XXIII. In State v. Habib Jalib P L D 1967 Lah. 1297 the respondent was prosecuted before a Special Tribunal for an offence under rule 47 of the Defence of Pakistan Rules, 1955. The Additional Sessions Judge, Lahore. allowed him bail whereupon the State filed a revision in the High Court. A Full Bench of the High Court set aside the order of the Additional Sessions Judge on the finding that under Notification No. S. R. O. 174(R)/66, dated 11th November 1966, the offence with which Habib Jalib wai charged was triable exclusively by a Special Tribunal. The learned Judges observed : "As soon as the Special Tribunal was constituted the jurisdiction vested in it exclusively including even for the purpose of the decision on the bail application. A Special Tribunal is competent to take cognizance of offences without the accused being committed to it for trial and the contention that the Tribunal could not take cognizance except upon a report in writing of the facts constituting such contravention made by a public servant was successfully met with the argument that the Police report in this case amply complied with the provisions of rule 205(1) of the Defence of Pakistan Rules With the publication of Notification No. S. O. R. 174(R)/66, dated the 11th of November 1966, the offence committed by the respondent was triable exclusively by the Special Tribunal and as such the considerations laid down in rule 206 of the Defence of Pakistan Rules for the grant of bail applied. Mr. Mahmud Ali Kasuri cited 1945 Nagpur Law Journal (not available) while the learned Advocate. General relied on Samaila v. Emperor, In re: V. Bhuvaraha lyergar and A I R 1955 All.

78. We have gone through the reported cases and on the parity of reasoning in the case Somalia V. Emperor, we hold that the learned Additional Sessions Judge was net competent to pass an order on the bail application of Habib Jalib. The order granting bail to the respondent by the learned Additional Sessions Judge. Lahore, on the 7th of March 1967, suffered from lack of jurisdiction and as such a nullity in law" In Mirza Mahmood Beg v. Commissioner, Multan Division. P L D 1966 S C 701 the accused were charged under section 302, P. P- C, and an inquiry under Chapter XVIII of the Code was underway before a Magistrate when the Commissioner withdrew the case and referred the question of their guilt or innocence to a Tribunal under the West Pakistan Criminal Law ,(Amendment). Act VII of 1963. On a writ petition by the accused the High Court quashed the order of the Commissioner as without lawful authority. On an appeal by the private complainant the order passed by the High Court was set aside. At pages 7117 and 708 the Court observed: "The High Court in its Full Bench decision cited above appears to have taken the view that it was a fraud on the provisions of the Code of Criminal Procedure that the District Magistrate should have pressed into service section 435 of that Code, for sending for the records of a case, in order to make a recommendation, under a different statute,. to the Commissioner. In the opinion of the learned Judges, action under section 435 of the Code of Criminal Procedure could only betaken for the purposes mentioned in that section. With respect, it seems to us that the position appears to have been misapprehended by the High Court and perhaps ever, by the District Magistrate and the Commissioner There was no question of calling for the records under section 435 of the Code: of Criminal Procedure for the purposes of that Code. when the matter fell to be decided under another statute. In order to decide whether action under the Act was called for or not. the District Magistrate could have, through the Public Prosecutor. requested the Court to hold up proceedings in the case, if the stage of charge had not yet been reached, in order to enable the relevant authorities to take the necessary decision under section 3 of the Act. If the District Magistrate had asked his Public Prosecutor to obtain copies of the records for his perusal and to request for an adjournment, with this end in view, the High Court presumably would have upheld his action. It would be taking altogether too. technical a view of the matter to say that the calling of the records instead, vitiated the action of the District Magistrate, for the result in either case would be the same. Even if it could be assumed for the sake of argument that the action of the District Magistrate, in calling for the records from the Court was irregular. it would not vitiate the order, passed by th3 Commissioner under section 3 of the Act. The view that prevailed in toe High Court to the effect that the recommendation of the District Magistrate to the Commissioner was an extraneous factor that could not betaken into consideration, is seen to be erroneous. It must follow that the order passed by the Commissioner was within his powers, conferred by section 3 of the Act and suffered from no infirmity. The irregularity. if any, in procuring the records, would not invalidate the order of the Commissioner. For analogy, the Privy Council case of Arabhu v. Emperor A I R 1944 P C 73 may be referred to. If a Tribunal is properly seized of a matter, the order passed by it,. would not be vitiated by any antecedent irregularities, committed is producing evidence or in securing the presence of the accused. The decisions relied upon by the High Court to support the thesis, that the District Magistrate's recommendation may have influenced the judgment of the Commissioner, were really not in point. The commendation itself was not foreign to the jurisdiction exerciseable by the Commissioner. The order, passed by the High Court, consequently, cannot be sustained,, The two appeals are allowed and the order of the High Court set aside. There remains the petition for special leave to appeal, by the two accused persons, from the order of the High Court, declining to grant them bail. It has been found that the matter has been taken outside the strictly judicial field and now rests in another jurisdiction. 1f so advised, the accused can approach tae relevant authorities, exercising powers under that jurisdiction, for bail. The petition for special leave to appeal is dismissed." In Ali Sher and another v. The State P L D.1970 Kar. 790 our brother Anwarul Haq, J., in a judgment delivered from the Bench of the High Court of west Pakistan considered the question whether section 28 of the West Pakistan Criminal Law (Special Provisions) Ordinance 11 of 1968 which laid down special provisions for certain trials in some of the areas of Wet Pakistan including Kalat Division excluded the jurisdiction of the High Court to grant bail to accused charged under sections 149, 30, 307, 352 and

447. Section 18 of the Ordinance provided that except as otherwise provided in the Ordinance, no proceedings under the Ordinance and no decision given, sentence passed or order made in any such proceedings shall be called in question in any Court or before any other authority. To determine the extent of the exclusion of jurisdiction of ordinary Courts embodied in section 28 of the Ordinance, Anwarul Haq, J., construed the word `proceedings" as "Every step taken towards the further progress of a case in Court or before the Tribunal, where it may be pending. It is tee step towards the objective to be achieved, say for instance. the judgment in a pending suit. The proceedings commence wish the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment, Coming to the provisions of this Act (namely, West Pakistan Criminal Law (Amendment) Act, 1963), the machinery of the law is put in motion the moment the Commissioner starts taking cognizance of a cast! under section 3 in order to make up his mind as to whether it is expedient or not that the case against the accused should he referred to the Special Tribunal for disposal." This view found support froth the dictum of the Court in Home Secretary to the Government of West Pakistan, Lahore v. Jan Muhammad P L D 1969 S C 333 and Mst. Rani and others v. Chanda and another P L D 1969 Kar.

463. The learned Judge next referred to the provisions of the Ordinance which contained power to grant bail (section 16) and power to effect prohibitive detention, etc, (sections 17-27) and section 28 which barred the jurisdiction of the ordinary Courts to call in question any decision given, sentence passed, or order made in any proceedings under the Ordinance. Having examined the scheme of the Ordinance our learned brother concluded a "From the foregoing review of the entire scheme of this Ordinance it becomes abundantly clear that the Ordinance does not 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. The first mentioned provision lays down that the Code "extends to the whole of Pakistan but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force". Subsection (1) of section 5 of the Code stipulates that "all offences under the Pakistan Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained". The scheduled offences under the Ordinance are mostly the offences under the Pakistan Penal Code, and normally they would, therefore, have to be investigated, inquired into and tried in accordance with the procedure embodied in the Criminal Procedure Code, but as sub .section (2) of section 1 of the Code makes room for the application of special or local laws, to that extent, therefore, the provisions of the Code shall give way to the Ordinance. Once "cognizance" has been taken by the Deputy Commissioner in terms of section 4 of the Ordinance the matter would fall to be regulated solely by the provisions contained in the Ordinance, to the exclusion of the jurisdiction of the Courts functioning under the Code of Criminal Procedure." There are cases decided under the Frontier Crimes Regulation. 1901, in which similar decisions were rendered See Samundar v. The Crown? P L D 1954 F C 228 , Muhammad Akram v. The State P L D 1963 S C 373, Sardar Nawab Haji Muhammad Khan v. ,Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta P L D 1964 Lah. 401 and mir Muhammad and another v. District Magistrate, Nawabshah P L D 1965 Kar.

494. In view of the peculiar provisions of the Regulation it was held "that an application for bail under section 498, Cr. P. C., by an accused who is facing trial before a Council of Elders is not competent in law". It may be pointed out that cases decided under Frontier Crimes Regulation are distinguishable a3 the proceedings under the Regulation were not to be regarded as proceedings in justice, but they are from every point of view to be regarded as proceedings before an administrative agency Samundur v. Crown. I have made a broad survey of the cases decided under the earlier Defence Laws and the Laws in pari maerla, because Ordinance XXX of 1971 does not stand in isolation. As seen it is in continuation of the earlier Defence Laws. So far as section 13(l)(b) of the Ordinance concerned it is verbatim copy of section 8 of Act IV of 1915, section 13 of Act XXXV of 1939 and section 13 of Ordinance XXIII of 1965. The interpretation placed on the corresponding provisions in the earlier Laws is therefore helpful in construing section 13(1) (b) on which turns the decision of the case. We may find fault with scheme of the Ordinance. The preamble to Ordinance XXX of 1971 recites: "Whereas it is expedient to provide for special measures to ensure the security, the public safety and interest and the defence of Pakistan, and for the trial of certain offences;". The emergency of war is conspicuous by its absence. Section 3 confers on the Central Government powers to make rules as "it appears to be necessary or expedient for ensuring the security, the public safety and interest and the defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, or for maintaining supplies and services essential to the life of the community. Subsection (2) lava down the guidelines with a long enumeration of subjects more comprehensive than the subjects mentioned in the corresponding provisions of Ordinance XXIII of 1965. The vices of the rules framed under section 3 was upheld by this Court in Malik Ghulam Alani v. Government of West Pakistan PLD1967SC

373. Section 6 provides enhanced penalties for persons who intend to wage war against Pakistan or to assist any State at war with or engaged in military operations against Pakistan, contravene any provision of the rules made under section 3 or any order made under such rule, he shall be?.? Section 8 makes provisions for constitution of Special Tribunals and prescribes their qualifications. Section 9 as it originally stood provided that the Central Government, may by general or special order, direct that a Special Tribunal shall try any offence (a) under any rule made under section 3, or (b) punishable with death, transportation or Imprisonment for a term which may extend to seven years triable by any Court having jurisdiction within the local limits of the jurisdiction of the Special Tribunal. Ordinance III of 1976 has amended section 9 which now reads : "Where the Federal or a Provincial Government constitutes a Special Tribunal for any area, it shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898 (.Act V of 1898), have exclusive jurisdiction to try all offences under any rule made under section 3 specified in the notification constituting the Tribunal which are committed within the local limits of the jurisdiction of the Tribunal." Section 10 contains the procedure of Special Tribunals which in some respects is differs for the procedure- for trial laid down in the Criminal -Procedure Code but in all matters in respect to which no procedure has been prescribed by the Ordinance or by Rules made thereunder, the Special Tribunal shall follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates. Section 12 defines the powers of Special Tribunals viz. : it may pass any sentence authorised by law, and shall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction. Section 13 provides

13. Appeals from sentences imposed by Special Tribunals etc.-(1) A person sentenced by a Special Tribunal (a) to death or transportation for life, or (b) to imprisonment for a term extending to ten years under section 6 of this Ordinance or under subsection (4) of section 5 of the Official Secrets Act, 1923 (XIX of 1913), as amended by section 7 of this Ordinance shall have a right of appeal to the High Court within which. se jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of a Special Tribunal, and. no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a special Tribunal. (2) Chapter XXIX of the Code shall apply to the suspension. remission and commutation of sentences passed by a Special Tribunal, so between, that the powers exerciseable by the Provincial Government under that Chapter shall be exercised by the Central Government" The next succeeding section 14 says except as may be provided in this Ordinance or in any rule made thereunder the ordinary criminal and civil Courts shall continue to exercise jurisdiction. Section 16 lays down that no order made in exercise of any power conferred by or under this Ordinance shall be called in question in any Court. It was not disputed by Mr. M. Anwar that if the Special Tribunal Convicts, and sentences a person to imprisonment for a term extending to less than ten years no appeal or revision lies against the sentence in the High Court. The dispute, however, centres round the concluding clause "or have any jurisdiction of any kind in respect o: any proceedings of a Special Tribunal". It ass argued by Mr. M. Anwar that the exclusion of jurisdiction of High Courts is contained to final orders and sentences passed by Special Tribunals and that "proceedings of a Special Tribunal" in the concluding Clause mean proceedings which have already concluded That is to say if trial is pending before a Special Tribunal a High Court can exercise jurisdiction under the Code and in exercise of that power make any order in respect of the proceeding of the Tribunal. Such a conclusion can be reached only if the scheme of Ordinance XXX of 1971 is such that even after a case is sent for trial to a Special Tribunal, it is not withdrawn from the supervisory control of the superior Courts. In that case section 13(1)(b) would have been worded in a totally different way. In support of his contention Mr. M. Anwar contended (i) that the exclusion of jurisdiction of superior Courts is not to be readily inferred unless the Legislature has used express words of exclusion; (iii) that the word 'Court' in section 13 does not include a High Court; (iii) that rules framed, under section 3(2) are void as in empowering the executive to create offences the Legislature has made excessive delegation; and (iv) that in any case rule 210 which governs grant of bail is hit by the rule of absurdity. I have examined every aspect of the argument addressed by Mr. M. Anwar with sympathy and confess inability to accept any one of his contentions. There is no cavil against the proposition that the jurisdiction, of superior Courts cannot be taken away except by express words or necessary implication? See Craies on "Statute Law", p. 122 "that a distinct and unequivocal enactment is also required for the purpose of either adding to or taking from the jurisdiction of a superior Court of law". Similarly Maxwell in "The Interpretation of Statutes" at page 122 points out that there is a general presumption against an intention to disturb the established state of the law, or to interfere with the vested rights of the subjects. It is supposed that the Legislature would not make any important innovation without a very explicit expression of its intention. (Pyx Granite Co. Ltd. v. Minister of Housing and Local Government 1960 A C

260. It is followed by the remark that it would not be inferred, for instance, from the grant of a jurisdiction to a new Tribunal over certain cases, that the Legislature intended to deprive the superior Court of the jurisdiction which it already possesses over the same cases. Shaftesbury v. Russell (1823) 25 R R 534, Rochdale Canal Co. v. King (1849) 14 Q B 122 and Itchin Bridge Co. v Southampton Local Bard of Health (1857) 27 L J Q B

128. The remarks in these cases are applicable to such of the statutes which only set up a new Tribunal to decide cases, but do not in express words exclude jurisdiction of the superior Courts which it already possessed over the same cases. There is another rule in point. At page 123 of Craies appear the. following remarks by Willes, J., in Wolverhampton New Water Works Co. v. Hawkesford (1959) 6 C B (N S) 336 (356): "There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is armed by a statute which gives a special and peculiar forty of remedy different from the remedy which existed at common law there, unless the statute containing words which expressly or by necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz, where a liability not existing at common law is created by a statute which at the same time gives a special and?????????? particular remedy for enforcing it . . . . . The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form?????? given by the statute must be adopted and adhered to." The Scheme of the Ordinance XXX of 1971 set out a little While ago brings It within the third class of cases mentioned by willes, j. The offence with which the petitioner is charged is created by Ordinance XXX of 1971. In accordance with the dictum of Willes, J he must, therefore, seek the remedy of bail under the Ordinance and not under the Code. There is another relevant rule of interpretation which is cited in Muhammad Ismail v. The State P L D 1969 S C 241 by Hamoolur Rahman, C. J. in these words: "The purpose of construction or interpretation of statutory provisions iv no doubt to ascertain tote true intention of the Legislature. fret that intention has, of necessity. to be gathered from the words used by the Legislature itself. If those words are so clear and unmistakable that they cannot be given any meaning other than that which they carry in their ordinary grammatical sense, then the Courts are not concerned with the consequences of the interpretation however drastic or inconvenient the result, for, the function of the Court is interpretation, not legislation." In the light of the rules of interpretation, stated above, we may !make an attempt to construe the provisions of section 13 (1) (b) The relevant clauses are: "notwithstanding the provisions of the Code, o of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of a Special Tribunal", and "no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the Code", or "have any jurisdiction of any kind in respect of any proceedings of Special Tribunal". These clauses have to be read together and not separately. The concluding clause "or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal" is to be read alongwith the clause "notwithstanding the provisions of the Code. or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done". It is clear that among other laws the application of the Code of Criminal Procedure is specifically excluded in respect of "any proceedings of a Special Tribunal". The word "any" is used at no less than seven places in section 13 (1) (b). It is a word of very wide amplitude and defined in Stroud's Judicial Dictionary as a word which excludes limitation or qualification (per Fry. L. J., Duck v. Bates? 12QBD79, "as wide as possible" (per Chitty, J., Heckett v. Sutton? 51 LJ Ch.433. What then is the meaning of the word : "Notwithstanding the provisions of the Code, or any other law, no Court shall have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal". The plain and unequivocal words used in these clauses of section 13 (1) (b) make the intention of the law-giver manifest that no Court including a High Court shall under the Code or any other Law, call in question or interfere with the proceedings of a Special Tribunal. "Proceedings" do not mean proceedings which have already concluded. As I read the clause the word "proceedings" includes all matters connected with and ancillary to the trial of a person charged before a Special Tribunal including the matte relating to grant of bail. The contention raised by Mr. M. Anwar that the word 'order' used in section 13 (1) (b) means a final order and not any interlocutory order is equally unwarranted. The words "any order" will include both final and interloutory order. Similarly, there is no merit in the argument that "proceedings of a Special Tribunal" mentioned in the concluding clause of section 13 (1) (b) means proceedings which have already concluded When proceedings conclude, they result in an 'order' or ',sentence'. There is a separate provision in tae subsection that no appeal or revision lies from any order or sentence passed by a Special Tribunal. The proceedings of a Tribunal cannot, therefore, be the proceedings which have already concluded. They mean proceedings which are pending before a Special Tribunal. The regulation of the custody of a person under trial is a part of the proceedings in the trial. .after the conclusion of each hearing the accused is remanded to judicial custody under the orders of the Presiding officer. Grant of bail by a High Court under sections 497 and 49e, of the Code will, therefore, result in interference with the proceedings of the Special Tribunal. ??????????? The contention that the term 'Court' used in section 13 (1) (b) does not include a High Court was given up by Mr. M. Anwar when his attention was drawn to section 491 of the Code under which only a High Court can grant a writ. The contention that conferment of power on the Central Government to frame rules inter alia to create offences amounts to excessive delegation of its powers by the Legislature was rained in Malik Ghulam jilani v. Government of West Pakistan P L D 1967 S C 373 and negatived by the Court with the observations: "The detailed provisions contained in this clause are worded with precision to meet particular needs, and sufficiently support the view of the High Court that there are ample guidelines contained in the clause to meet fully the criticism that this clause constitutes excessive delegation of legislative power. Any rules made under this clause, must he adapted to one or other of the numerous cases that are provided for," The contention that rule 210 is affected by absurdity is equally misconceived. It was maintained by the learned counsel that under rule 210 a Court has to first pass an order of acquittal and then grant a bail. a Section 210 provides as under: "

210. Special provision regarding Ball.-Notwithstanding anything contained in the Code no person accused or convicted of a contravention of these rules or orders made thereunder, if in custody, be released on bail or on own bond, unless (a) the prosecution has been given an opportunity to oppose the application for such release. and (b) where the prosecution opposes the application and the contravention is of any such provision of these rules or orders made thereunder as the Central Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention." Section 497 of the Code provides that a person shall not be released opt bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment. It does not mean that the Court has first to convict and then to refuse bail. In either case the Court has to take a prints facie view of the guilt or innocence of the accused. Under section 497 of the Code bail is a right which may be denied only on the conditions contained in that section. Under rule 210 bail is not a right, but the Court may allow it if prima facie the accused does not appear to be guilty. In Syed Muzaffar Shah v. The State P L D 1974 Lah. 242 the Chief Justice of the Lahore High Court has construed rule 210 thus: "It is manifest that the rule does not contemplate that the Court must hold that the accused person is innocent and then admit him to bail. If this had been the intention, then the very concept of bail under the Defence of Pakistan Rules would be negated. In view of the allegations made in a report against an accused person it shay be most difficult, if not impossible, to hold in any case that a person is positively innocent. Moreover, a person cannot be held to be innocent in proceedings for bail because if the Courts are to do so, they will have to scan the whole record and pass judgment, which will indubitably be wrong in a case where truth or falsity of the allegation is yet to be determined in the light of the evidence which may have to be led. It will be against the fundamental principles of jurisprudence and the concept of justice to permit such course of action. It is, in fact, the duty of the Court to ensure that nothing is said in the order or judgment which may pre-judge an issue. because it may prejudice either of the parties, and also affect the objectivity of the judicial officer. I am clear in my mind that what the Court is to see in such circumstances is not that the accused is demonstrated to be innocent but whether reasonable grounds exist to show that he has not committed the offence. It is in the light of the allegations of the prosecutions, the denial .of the accused and the attendant facts and circumstances that one bas to form an opinion whether reasonable grounds exist to believe that the person is guilty of the alleged offence. The same view was taken in Jan Mohammad v. State P L D 1973 Lab. 643 where it was observed that if clause (b) of rule 210 of the Defence of Pakistan Rules, 1971, is attracted to the facts of a case, bail cannot be granted to the accused in that case unless be satisfies the Court that there are reasonable grounds for believing that he is not guilty of the offence alleged against him. In Mian Tufail Muhammad v. The State (Petition for Special Leave to Appeal No. 36 of 1973) their Lordships of the Supreme Court admitted the petitioner to interim bail in the case which wag registered against him under rule 32, read with rule 213 of the Defence of Pakistan Rules, 1971, by observing that at the stage when the question of interim bail is under consideration, the Court cannot undertake "an examination and analysis of the speech alleged to have been delivered by the petitioner". It was further observed: "chat stage has not yet arrived. However, as important questions of law touching the liberty of the subject have arisen in this case and we have granted leave to appeal to? examine them, we would allow interim bail to the petitioner. It would, therefore, be wrong to say that rule 210 is an absurdity. We may. now examine some of the decided cases in which section 13 (1) (b) of Ordinance XXX came up for consideration. In Muhammad Ismail v. The State P L D 1974 Kar. 29 Abdul Hayee Kureshi held that the creation of a Special Tribunal is in derogation of the Code of Criminal Procedure, as the rules thereunder lay down independent norms and principle for grant of bail which excludes the application of the Code of Criminal Procedure. With reference to the terms of section 13 of the Ordinance, the learned Judge remarked: "When section 13 is read as a whole, it would be very clear that the bar of jurisdiction is total and complete and enures throughout the proceedings before the Tribunal. The mention of section 526 clearly indicates that the provision applies even to the stage of trial. The ratio is that once a case is completely withdrawn from the general system of the Code of Criminal Procedure and validly remitted to the Court or Tribunal of special jurisdiction, the contact of Courts of general jurisdiction with the said case ceases; in such cases the Special Court or Special Tribunal i9 no longer under the control or supervision of the Court of general jurisdiction by virtue of powers and the Code of Criminal Procedure" In support of this view Abdul Hayeo Kureshi, J., relied on State v. Habib Jalib P L D 1967 Lah. 1297, Smaila v. Emperor A I R 1917 Lah. 138 In re : Rhuvara Iyengar A I R 1942 Mad. 21, Mahmood Beg v. Commissioner of Multan PLD 1966SC

701. Abdul Ghani v. Subedar Sheodar Khan PLDl964Lah.612 and Muhammad Khan v. Additional Commissioner P L D 1964 Lah.

401. Following the reasoning in these cases the learned Judge dismissed the application for bail before arrest under section 498, Cr. P. C. In Sardar Ali Shah v. The State, Agha Ali Hyder, J., granted bail to the accused placed for trial before a Special Tribunal on the consideration that this Court had given leave to appeal in Begum Silwat Sher All v. The State, Mian Tufail Muhammad v The State and Ishaq Mandani v. The State. The accused in these cases were charged for offences under Ordinance XXX of 1971. The Court had also allowed interim bail to the accused. Abdul Hayee Kureshi, J., did not follow the reasoning of Agha Ali Hyder, J , as only leave to appeal had been granted. There is, however, an obvious distinction which was not noticed by the learned Judges viz. that in the three cases noticed by them the accused were standing trial before ordinary Magistrates and not a Special Tribunal. The bar of jurisdiction contained in section 13 (1) (b) was, therefore, not applicable to those cases. In Muhammad Yasin v. The State (Criminal Bail Application No. 101 of 1970 a Division Bench of the Sind & Baluchistan High Court reaffirmed the view that a person facing trial before a Special Tribunal cannot be released on bail by a High Court under sections 497 and 498 of the Code. They found support from Muhammad Akram v. The State P L D 1963 S C 373 in which it was observed: "In these circumstances, it should be obvious that for the superior Courts to interfere, whether by approval or otherwise with the operation of the system in any case, once a case is competently drawn into the system, would be a violation of the legislative intention." The Division Bench also relied on State v. Habib Jalib P L D 1967 Lah. 1297, Ilahi Bakhsh Soomro v. The State P L D 1973 Kar. 674 and Muhammad Ismail v The State. Before proceeding further I may mention that this Court has set aside actions taken as orders passed by the executive authority notwithstanding the finality conferred by section 16 of Ordinance XXIII of 1965 or Ordinance XXX of 1971. But the jurisdiction exercised by the Court in those cases was not under the ordinary Laws, such as, the Code, but under the Constitution which overrides all laws including the aforementioned Ordinances. See Malik Ghulam Jilani v. Government or West Pakistan P L D 1967 S C 373 Mir Abdul Baqi Baluch v. Government of West Pakistan P L D 1968 S C 313 and Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri P L D 1969 S C

14. In Malik Ghulam Jilani's case this Court differed with the view expressed by the House of Lords in Liversidge v. Sir John Anderson 1942 A C 206 and held that it was too late in the day to rely on the dictum that the detaining authority has complete power to be the judge of its satisfaction It was further observed that "public power is now exercised in Pakistan under the Constitution of 1962 of which Article 2 requires that every citizen shat be dealt with strictly in accordance with law. To sum up the Defence Laws have operated in the sub-continent from time to time since 1915. The exclusion of jurisdiction in Act IV of 1915 is expressed in similar terms in the succeeding Laws like Act XXXV of 1939, Ordinance XXIII of 1965, and Ordinance XXX of 1971. The width of the exclusion was debated in a number of cases some of Which have been noticed in this order.? The vires of the Defence Laws was challenged on the ground that the Governor-General-in-Council or the Indian Legislature was not competent to enact them. The vires of the Rules was challenged on the ground that they were in excess of the power conferred on the Government as in the case of Keshav Talpade. It was also contended that section 3 was a bad law as it delegated excessive Legislative power to the Executive. The actions taken under the Rules were also challenged as illegal and in some cases set aside in site of the bar contained in the Defence Laws, such as, in the case of Lahore Electric Supply Company. But there is not a single case in which it was held that the words used in the exclusion clauses, such as, in section 13 (1) (b) of Ordinance XXX of 1971 were not wide enough to exclude the jurisdiction of a High Court under the ordinary Laws like the Code. ??????????? It was contended and rightly so that the Commissioners, Special Tribunals and Special Magistrate were Courts of inferior jurisdiction within the contemplation of section 6 of the Code. On this definition High Courts would have been competent to revise under sections 435 and 439 of the Code any order or sentence passed try the Commissioners or Special Tribunal, but they did not exercise this power as it had been taken away categorically by the various Defence Law . ????? The above analysis of the Defence Laws, the dictum in the decided cases, the plain meanings of the words used in section 13 (() (b) of Ordinance . XXX of 1971, the Historical background arid the weight of authority incline -me to the view that once a Special Tribunal. has taken cognizance of a ,case, the jurisdiction of ordinary Courts including High Courts to call in question any 'order or sentence passed by the tribunal or to exercise any jurisdiction in respect of its proceedings is completely taker away. On this interpretation the High Court could not have granted bail to tae petitioner under section 497 and 498 of the Code. ??????????? Mr. M. Anwar drew our attention also to the facts of the two cases and contended that the orders for the arrest and the trial of the petitioner are mala fide, but F will not express any opinion on this aspect of the case since the legality of the proceedings in both the cases is already under challenge before the High Court of Sind? &? Baluchistan in writ jurisdiction. Indeed, the Writ Petitions had boon fled earlier on 15th February 1976 while the bail applications out of which these petitions for leave to appeal have arisen were filed on the 25th of March, 1976. Before parting with the case, I consider it my duty to point out that throughout the hearing of these petitions I had a feeling of uneasiness. To my mind power to grant bail is of minimal significance if in the final event superior Courts cannot give redress against the sentence of imprisonment extending to a day less than ten, however erroneous the decision of the, Special Tribunal may be on facts and law. Courts of law including Special Tribunals are not infallible. All of them may commit errors and that i why in most civilized system of administration of justice there is a provision for at least one appeal to a superior Court. Even this Court may sometimes commit an error. To provide a remedy against it the Constitution has specifically conferred on the Court the power of review. The complete negation of the right of appeal .and revision in majority of the cams i arising under the Defence of Pakistan Rules is, therefore, a matter of! considerable concern. In a similar situation this Court said: ?Depriving citizen of the right of appeal or revision is a serious departure whirl; has been made from the norms provided in the system of laws which have been expounded, asserted and maintained? for a very great length of time in an infinite variety of cases by regular Courts working under the High Court's supervision. ( Muhammad Akram v. The State) " It was pointed out in that case that "Courts are accustomed to follow a meticulous procedure expressed in words into which has been built over centuries every possible safeguard against deviations which might deflect or prejudice the course of justice." It is questionable if a Special Tribunal not subject to appellate or, supervisory jurisdiction of superior Courts will safeguard against "deviations which might deflect or prejudice the course of justice." The 1915 and 1939 Defence of India Acts contain similar provisions excluding jurisdiction of High Courts, but those laws were of temporary nature. Moreover, as seen very little use of these stringent provisions off law was made. Ordinance XXX of 1971 on the other hand is to all intents and purposes a permanent Law. And now by virtue of the Amending Ordinance III of 1976 all offences under the Defence of Pakistan Rules are triable exclusively by Special Tribunals. The number of cases which will come up before the Special Tribunals will therefore multiply very soon The absence of an appeal or revision against the orders acrd sentences passed by Special Tribunals may in this case result in great hardship. But can a Court grant relief against such a stringency. It is well established rule of interpretation that a Court of law will not depart from the plain meanings of the words used in a statute or deflect the explicit intention of the Legislature in order to mitigate a hardship. Indeed it is the Courts' duty to resist temptation to make a bad law in a hard case. The remedy, therefore lies in political and not judicial dispensation and I hope that the Government will give a serious thought to the absence of an appeal and revision against an order sentencing a person to a term of imprisonment extending to less than ten years and to an unlimited amount of fin,_ I may point oat that if no such remedy is provided, the aggrieved person will have no other course to adopt except to invoke the writ jurisdiction of the High Court. 1n that event the direction of argument and reasoning will be different from the hearing of an appeal and it may complicate rather than solve the issue of the guilt or innocence of the accused. On the interpretation I have placed on section 13 (1) (b) of Ordinance XXX of 1971 the learned Judge of the High Court was right in refusing bail to the petitioner under sections 497 and 498 of the Code. Both the petitions for leave to appeal are, accordingly, dismissed. SALAHUDDIN AHMED. J.-These two petitions arise out of the same judgment of the High Court of Sind & Baluchistan, Karachi, and have been heard together, and they are now disposed of under one order. The petitioner in both the petitions is the same, namely, Ch. Zahur Ilahi, a Member of the National Assembly of Pakistan and Deputy Leader of the Opposition. The two petitions, vie., Nos. 26-R and 27-R of 1976 are from an order of the High Court dated the 17th of March, 1976, passed in Criminal Bail Applications Nos. 250 and 253 of 1976, respectively. The former bail application arose out of Crime No. 14 of 1976, registered against the petitioner by S. I. Jamil Akhtar Kayani on the 14th of February, 1976, at 07-55 hours with Police Station, Civil Lines, Karachi, under rule 42(6) (e) of the Defence of Pakistan Rules, 1971 (hereinafter called the Rules), read with section 506/189 of the Pakistan Penal Code. The latter was in respect of First Information Report No. 14 of 1976 registered at Police Station Risala, Karachi, under rules 42(6) (e) & (g) and 49 of the Rules on the same date, i. e., the 14th of February, 1976, at 11-05 hours by S. H. O. Muazzam. The High Court rejected both the bail applications, and hence the present petitions for special leave to appeal. It appears from the petitions that the petitioner. Ch. Zahur llahi, is a Leader of the Opposition and has been an outspoken critic of the Government for about four years. During this time not only he but his relations and associates have been victimised and harassed by the registration of a large number of criminal cases against them. The petitioner, himself was arrested on numerous occasions and bailed out by superior Courts including the Supreme Court. It is stated that a practice has developed in the country to implicate leaders of Opposition lit false cases and as soon as some of them are released on bail they are immediately re-arrested in another case surreptitiously registered against them. Recently the petitioner was arrested in a murder case on the 6th of February, 1976, and was confined in Gujrat Jail but was ultimately directed to be released on ad interim ball by this Court by its order dated the 12th February, 1976. It is, however, alleged that despite the said order of this Court he was shown arrested on the same day in a case under section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter called M. P. O. Ordinance) registered against him at Police Station, Civil Line-, Karachi, on the 8th of February, 1976, and was taken to Karachi where he arrived on the 14th of February, 1976. The basis of this second case is a letter dated the 19th of January, 1976, of one Ch. Muhammad Sad)q complaining that on the 18th of January, 1976, at 5 p. m. in the lawn of Hotel Inter-Continental, Karachi, the petitioner talked to 10/12 persons against the Government. Validity of this arrest/re-arrest was challenged in the Lahore High Court the same night in Criminal Miscellaneous No. ?47/B of 1976, and later in Writ Petition No. 426 of 1976, and both the petitions are still pending decision. On the 23rd of February, 1976, bail was granted by the Additional Sessions Judge, Karachi, in tire said case registered under M. P O. Ordinance. Curiously, however, the same police officer, S.

1. Jamil Akhtar Kayani, S. H. O., Civil Lines Police Station, applied to the S. D. M., Civil Lines, for remand of the petitioner in the said Crime No. 14 of 1976 registered on the 14th of February, 1976, for 14 days. The Sub Divisional Magistrate apparently without any application of mind anti without production of the petitioner before him granted the remand. Thus, the order of bail granted by the Additional Sessions Judge was made infructuous. The allegations in Crime No. 14 of 1976 seem puerile and make interesting reading. The gist is that although the petitioner had been brought under arrest from Gujrat to Karachi on the 14th of February, 1976, he refused to go to Court for the purpose of obtaining remand when asked to do so by the said S. H. O. On the contrary, the petitioner is alleged to have said that unless he was allowed to go home he would take revenge from the lives of relatives of the S. H. O. and also contemptuously asked whether it was Pakistan or Kufiristan. He said the S. H. O. should not become a stooge of the traitors of the Muslim Government, and that he did not expect any justice from the Courts in Pakistan or the Courts in the Province of Sind. He further said he did not expect any truth from police A charge-sheet in this case was prepared on the 25th of February, 1976. The petitioner applied for bail before the Special Tribunal on the 28th of February, 1976, and the application was rejected on the 5th of March, 1976, by the following order : "We have considered their view point and we agree that the contention of the public prosecutor that the case has recently been challaned and trial is being fixed at an early date and further that this accused is involved in a similar offence in this Court earlier and that case is still pending before the Tribunal and he is in the habit of making such inflamatory speeches calculated to create hatred and disaffection by the law has some force, and looking towards the words spoken by him as shown in the F. I. R. it is likely that such hatred and disaffection against Government established by law might be created. The circumstances of this case are different from those mentioned in the cases cited by the applicant's counsel as in some of them the provisions of section 124-A of the Pakistan Penal Code are discussed which are not applicable in this case, and in none of those cases the accused ate involved repeatedly in the offence of same nature under the Defence of Pakistan Rules. Under these circumstances we do not see any reasonable ground to allow him bail. The bail application is accordingly dismissed. The petitioner challenged the validity of this order in his Criminal Bail Application No. 250 of 1976 under rule 210 of the Rules read, with section 498 of the Code of Criminal Procedure in the High Court of Sind & Baluchistan but this was rejected on the 17th of March, 1976, on the ground that the High Court had no jurisdiction. Petition No. 26-R of 1976 is from this order of the High Court. Criminal Petition No. 27-R of 1976 arises out of First Information Report No. 14 of 1976 of Police Station Risala, Karachi, registered on the 14th of February, 1976, at 11-OS p.m. in respect of an alleged incident in the compound of the City Courts at 10-40 p. m. on the same day under rule 42(6) (e) & (g) read with rule; 49 of the Rules at the instance of S. H. O. Muazzam Hussain. The allegations in this case were that the petitioner while in police custody had told people who had assembled around him that he did not recognize the Courts; that he had prepared lists of Magistrates and police -officers, who were toeing the tine of the present P. P. P. Government, which was a Government of the Sind his and would not leave them; that this Government had separated East Pakistan from West Pakistan ; and wanted to finish the remaining Pakistan also; that this Government would have to answer; that before this Government finishes the present Pakistan they would overthrow the Government; and they were awakened, and the days of the Government were over . The petitioner not unreasonably assumed that he might have been arrested in this case as well and, therefore, applied for bail before the Special Tribunal on the 28th of February, 1976. Having learnt subsequently that he had not till then been arrested or shown arrested in the said First Information Report No. 14 of 1976 of. Police Station Risala, be made another application dated the Ist of March, 1976, and prayed that his previous application dated the 28th of March, 1976. might be treated as an application for anticipatory bail. The Special Tribunal by his order dated the 10th of March, 1976, refused bail to the petitioner on the ground that rule 210 of the Rules did not provide for bail before arrest. The petitioner then approached the High Court for bail in his Criminal Bail Application No. 253 of 1976 under rule 210 of the Rules and section 498 of the Code of Criminal Procedure, and it was rejected on the 17th of March, 1976, on the short ground that the petitioner having then been already arrested in this case should first move the Special Tribunal. Petition No. 27-R of 1976 is from this order of the High Court. On the 26th of February, 1976, the Sind Government constituted a Special Tribunal with exclusive jurisdiction to try, inter alia, offences under Rule 42/49 of the Rules. It may be of advantage to state here that rule 42(6) (e) & (g) defines Prejudicial Acts to be any act which is intended or is likely (e) "to bring into hatred or contempt, or to excite disaffection towards the Government, established by law in Pakistan" and (g) any act which is intended or is likely to promote feelings of enmity and hatred between different classes of citizens". It may be mentioned here that there two offences correspond to offences under sections 124-A and 153-A of the Pakistan Penal Code. rule 49 of the Rules makes a prejudicial act punishable with a maximum sentence of five years imprisonment, or with fine, or with both. Section 5C6 of the Pakistan Penal Code makes criminal intimidation punishable with a maximum of 2 years' imprisonment. or with fine, or with both. Section 189 of the Pakistan Penal Code makes a threat of injury to public servant punishable with a maximum imprisonment of 2 years, or with fine, or with both. It may be noted here that the petitioner had already been granted bail by this Court in the murder case, and had also been granted bail by the learned Sessions Judge in the case under section 16 of M. P. O. Ordinance. Except for rule 42/49 of the Rules, the rest of the offences arc not only bailable but also the accused cannot be arrested without a warrant and in the case of an offence under section 189 of the Pakistan Penal Code only summons can be issued in the first instance. In course of the hearing of these two petitions for special leave to appeal we were informed by Mr. M. Anwar, learned counsel appearing on behalf of the petitioner that Constitution Petitions Nos. 173 and 174 of 1976 in respect of the Civil Lines Police Station Crime No. 14 of 1976 and Risala Police Station First Information Report No. 14 of 1.976, respectively, had been admitted on the 11th of March, 1976, for hearing, not they had been pending before the High Court of Sind & Baluchistan, Karachi. Criminal Bail Applications Nos. 250 and 253 of 1916 were filed later on the 25th of March, 1976. It would have been appropriate if the two Constitution petitions and the said two bail applications should have been heard together. But this was not done. In order to have a proper appreciation of the case, it seems necessary to keep 'certain features of the case in mind. The averments made in the petitions have not been challenged. Between the period 6th of February, 1976, and now the petitioner has been in custody in respect of several cases including a murder case. He was denied the benefit of bail granted by this Court in the murder case. The offence under section 16 of the M. P. O. Ordinance is punishable with a maximum of three years' imprisonment, or with fine, or with both, and although the offence is non-bailable it is in the discretion of the Court to release the accused on bail and normally bail is granted in such offence. In fact the petitioner had been allowed bail in the case by the Additional Sessions Judge. Similarly, offences under sections 189 and 506 of the Pakistan Penal Code are both bailable. There remain the offences under rules 42/49 of this Rules, which are not only non-bailable but also there are stringent conditions put on release of an accused on bail. The quick, succession in which one case after another was registered against the petitioner, even when the petitioner was in custody is noticeable The petitioner is an M. N. A. and a Deputy Leader of the Opposition and an out-spoken critic of the Government for several years. It was unlikely that he would abscond. It will not be out of place to mention here .that even before the start of recent cases the petitioner had been previously arrested or taken into custody in dubious circumstances. The case of Manzoor Elahi v. Federation of Pakistan P L D 1975 S C 66, was one such case of the petitioner in which he had challenged the validity of his arrest and detention. In this case, too, the petitioner bad asserted, that a large number of his relations and friends had been arrested and harassed and particulars of the cases were mentioned. The facts speak for themselves, and hardly need any comment. The petitioner has on the basis of the aforesaid facts and circumstances asserted that the proceedings against him and the orders pissed against him are male fide, and misuse of the powers under the Ordinance or the Rules. This assertion prima facie appears to be not altogether unfounded, if considered along with the fact that the two offences under rule 42(6) (e) & (g) of the Rules are substantially the same as provided in sections 124-A and 153-A, respectively, of the Pakistan Penal Code and no compelling reason appears why the Emergency. Law was preferred to the ordinary law of the land.! In fact under section 124-A of the Code the maximum punishment is` transportation for life/life imprisonment, which is mach more than that prescribed for are offence under rules 42 and 49 of the rules, namely, five years' rigorous imprisonment. The only apparent reason for charging the petitioner with the offences under the Rules instead of under the Pakistan Penal Code is to bring him within the rigours of bail under rule 210 of the Rules, and denying him the advantage of bail in the ordinary course under the Code of Criminal Procedure. At any rat the facts stated in the petitions prima facie called for examination and this should not have been denied to him. In the case of Lahore Electric Supply Co. Ltd. A I R 1943 Lah. 41 while dealing with the validity of an order of requisition made under rule 75-A of tae Rules, a Full Bench of the Lahore High Court held that the jurisdiction of a civil Court was not barred under section 16 ( =section 16 of the Ordinance) if an order under the Act (Defence of India Act, 1939) or the Rules thereunder was ultra vies or if the order was not made bona fide, but for some collateral purpose. This case relied on the Privy Council case of Secretary of State v, Mask & Co. I L R 1940 Mad. 599 wherein Lord Thankerton observed thus :_ "It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion .Must either be explicitly expressed or clearly implied. It is also well- settled that even if jurisdiction is so excluded, the civil Courts have, jurisdiction to examine into cases where the provisions of the Act have not been complied 46 with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." Similarly in the case of Rex v. Governor of Brixton Prison (1916) 2 K B 742, Lord Reading observed : "If we were of opinion that the powers were being misused, we should be able to deal with the matter. In other words, if it was clears that an act was done by the Executive with the intention of misusing those powers, this Court would have jurisdiction to deal with the matter." In a matter like this, therefore, section 16 of the Ordinance does not stand in the away of the high court to examine under section 561-A of the Code of Criminal Procedure the question of lack of bona fides oil misuse of the powers. This inherent power of the High Court is very important and .it is significant that section 13 of the Ordinance makes no mention of section 501-A of the Code of Criminal Procedure. This omission is to be considered in the light of the fact that under section 14 of the Ordinance the jurisdiction of the ordinary criminal and civil Courts has been preserved except as may be provided otherwise in the Ordinance or in any Rules made thereunder etc. Whether section 13 of the Ordinance has ousted the jurisdiction of the High Court, and if so, how far will be discussed hereafter. The High Court unquestionably has this power under Article 199 off the Constitution of the Islamic Republic of Pakistan (hereinafter called',, the Constitution) and it should have exercised this jurisdiction when the question of liberty of a citizen was involved even though the Courts had before it the applications under section 498 of the Code of Criminal Procedure only. I held this view in the case of Manzoor Ilahi v. Federation of Pakistan, I still adhere to and see no reason to depart from it. I had observed thus : "When the liberty of a person is involved a High Court can exercise its jurisdiction under Article 199 of the Constitution and grant him relief even though he has misconceived his remedy and came up with an application under sections 498 and 561-A of the Code of Criminal Procedure." ??????????? Being the repository of such jurisdiction and power no technicality should have stood in the way of using then for safeguarding the liberty of a citizen Rule of lax guaranteed to the people in the Constitution would indeed be illusory it mere technicalities are to stand in the way of enforcing it. As may have been noticed above, the High Court already had before it Constitution petition was of the petitioner for the same relief. There was, therefore, no difficulty on the part of the High Court to have heard these petitions along with the bail applications and to have given the necessary relief to the petitioner. It is now a well settled principle, and there are a large number of decisions of this sub-continent both before and since the Independence in support of the principle, that a mala fide or colourable action is not an action in accordance with law. Furthermore, that a fraud upon Statute cannot be allowed to be perpetrated. In the case of Mian Jamal Shah v. Election Commission PLD1966SC1, it has been observed as follows :- "An act done or proceeding taken would be with lawful authority if the person performing the functions is invested with the necessary capacity and the conditions for the exercise of the authority are substantially complied with except where there be found disqualification by bias or fraud or malice which will be destructive of all power under law." In the case of Government of West Pakistan v. Begum Shorish Kashmiri PLD1969SC14. while discussing the jurisdiction of the High Court under Article 98(2) of the 1962 Constitution, which corresponds to Article 199 of the Constitution, this Court has observed as follows : "The words 'in an unlawful manner' in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that i- is the inalienable right of ever' citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining;; as to how and in what circumstances a detention would to detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts. It means according to the accepted forms of legal process anti postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this. sense it is as comprehensive as the American 'due process' clause in a new garb. It is in, this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action take upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner. It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution-makers intended that this most cherished right should not be taken away in an arbitrary manner and hence by sub-clause (b) of clause (2) of Article 98 they advisedly lift it to the High Courts to review the actions of the detaining authority, untrammeled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of a writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts. The Court must nevertheless in deciding this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be made and the circumstances in which it came to be ordered. The content of the power vested by the Constitution in the High Court cannot be limited or taken away by a sub-constitutional legislation but the reference to the statute and the other factors mentioned above is rather for determining its true nature, scope and legality. There can be no doubt that the Court can satisfy itself that the action taken is not a mere colourable exercise of power or a fraud upon the statute but it has, throughout without any exception whatsoever, been always consistently held that a mala fide action is not action in accordance with law The real question, in . every case of mala fides is : Did the authority or officer concerned reasonably believe that his duty as such officer required him to act as he did ? A person acting in pursuance of a statute cannot be said to be acing bona fide if he has no reasonable ground for believing that the statute justifies hire in what he does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner." In the case of Prabhakar Kesheo Tare A I R 1943 Nag. 26, it has been observed as follows while dealing with section 16 of the Defence of India Act (section 16 of the Ordinance) : "It is to be observed that section 16 requires that the order be passed in the exercise of the power conferred by the Act and not merely in colourable exercise of such power. They must be done in actual exercise of it and, as I read the law, no power is conferred to make such orders in bad faith, or in abuse of the Act or for the purpose of effecting a fraud on the Act and consequently, these issues must be investigated if they are raised. It is also relevant to bear in mind :he following observations of the Full Bench in the case of Lahore Electric Supply Co., on section 15 of the Defence of India Act, 1939, which corresponds to section 15 of the Ordinance : "I cannot hold that section 15, Defence of India Act, is a statutory limitation of the powers conferred by the Act, I do think that it can be used as a guide in considering whether the powers invoked by Government were exercised bona fide or not." As will be presently seen the High Court could also grant relief under section 498 of the Code of Criminal Procedure if it had considered the case in depth and not disposed it of summarily on the ground of lack of jurisdiction. It has been strenuously contended on behalf of the petitioner that the High Court has jurisdiction under section 498 of the Code of Criminal Procedure to grant bail even though it has no seisin of the case. This jurisdiction of the High Court exists unless and until it has bee specifically taken away or curtailed by any special law. The contention is well supported by sections 1(2) and 5(2) of the Code of Criminal Procedure which are as follows : "Section 1(2).-It extends to all the Provinces and the Capital of the Federation ; but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Section 5(2).-All offences, under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." On the contrary it has been contended by Mr. G. A. Memon, learned Advocate-General, Sind, that section 13 of the Ordinance has ousted the jurisdiction of the High Court in the matter of bail in respect of a case that is exclusively triable by a Special Tribunal under tine Ordinance. Section 13 is in these terms : "Section

13. Appeal from sentences imposed by Special Tribunal etc.- (1) A person sentenced by a Special Tribunal. (a) to death or transportation for life, or (b) to imprisonment for a term extending to ten years under section 6 of this Ordinance or under subsection (4) of section 5 of the Official Secrets Act, 1923 (XIX of 1923), as amended by section 7 of this Ordinance- shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save a9 aforesaid and notwithstanding the provision of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of Special Tribunal and no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal or to make any order under section 491 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal." It will be noticed that section 498 is not mentioned in section

13. It will also be noticed that both 'High Court' and 'Court' have been used in, the section. Section 498 is a Code by itself and deals with the powers of the High Court or Court of Session to grant bail. In the case of All Nawaz Gardezi v. Lt: Col. Muhammad Yusaf PLD 1962SC465, while dealing with the omission of section 411-A of the Code of Criminal Procedure in Ordinance L of 1962 (Abolition of Jurisdiction of High Courts and Supreme Court) it has been observed as follows : "As the intention was to refer to the provisions which were being repealed and section 411-A which confers jurisdiction to hear appeals in criminal cases was not referred to there is a reasonable inference that the repeal of section 411-A was not contemplated. In any case this omission raises a doubt as to whether the intention was to abolish the jurisdiction created by section 411-A . We cannot say what conclusion as a matter of construction we may have reached if there was a similar provision not relating; to the jurisdiction of a superior Court, but considering that the provision relates to the jurisdiction of a superior Court we will not hold in favour of tire abolition of such jurisdiction unless the words used are clear and unambiguous." So far as the powers of the High Court to grant bail, irrespective of the fact whether there be an appeal on conviction or not are concerned, this deliberate omission should be considered vis-a-vis the mention of section 491 of the Code which authorises the High Court alone to issue a writ in the nature of Habeas Corpus. The specific mention of section 491 of the Code in section 13 of the Ordinance has the effect of excluding the jurisdiction l of the High Court under sec; ion 491 of the Code in respect of any proceeding of a Special tribunal This exclusion, however, does not affect the jurisdiction of the High Court under section 491 in respect of a person against whom the Special Tribunal has nest yet taken cognizance of the case in terms of rule 209(;) of the Rules. This rule says that no Court or Tribunal shall take cognizance of any alleged contravention of these rules or of any order wade thereunder except o;: a report in writing of the facts constituting such contravention made by a Public Servant. In the case of Gopal Marwari A I R 1943 Pat. 245 while dealing with section 26 of the Special Criminal Courts Ordinance (I1 of 1942) which was similar to section 13 of the Ordinance, it was observed that where the appointment of the Special Magistrate was held to be not legal the High Court could interfere under section 491 of the Code of Criminal Procedure and put a stop to the petitioner's detention. As regards the bar on transfer of any case from a Special Tribunal, so far as the High Court is concerned this logically follows froth the Notification :.,ate.: the 26th of February, 19.76, of the Government of Sind whereby a special Tribunal for the whole of the Province of Sind was established and a Tribunal was clothed with exclusive jurisdiction to try, inter alia, offences under rules 42 and 49 of the Rules. The Notification was issued in exercise of the powers conferred by subsection (1) of section 8 of the Ordinance read with the Government of Pakistan (Cabinet Division) Notification dated the 21st of February, 1976, and section 9 of the Ordinance. It is appropriate at this stage to dispose of the argument that the words' 'no Court shall . . . have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal' are wide enough to exclude any jurisdiction of the High Court of any kind in respect of a case exclusively triable by a Special Tribunal. It we assume this to be true then these was no necessity for the Legislature to have mentioned section 491 of the Code of Criminal Procedure, for it is one of the Rules of interpretation that no such superfluity is to be attributed to the Legislature. Furthermore, if the Legislature mentioned section 491 of the Code of Criminal Procedure by way of abundant caution there was no reason why it should not have mentioned sections 498 and 561-A of the Code of Criminal Procedure also. Again the words 'no Court? cannot always be interpreted to include a superior Court or High Court. It is now a well- established principle of interpretation of Statutes that the jurisdiction of a high Court cannot be abolished or ousted unless this is done by express words or clear intendment. I may cite here the following authorities and decisions in support of my view :- In the case of Muhammad Ismail v. The State P L D 1969 S C 241, this Court observed as follows : "Learned Attorney-General argues that it is now well established that there is a strong presumption that the jurisdiction of a superior Court can only be taken away by express words particularly, where the result of such an interpretation would be to disturb an established state of the law, or to create manifest injustice or hardship or to interfere with vested rights. As pointed out by Maxwell in his book on the Interpretation of Statutes, 11th Edition, at page 122, 'so strong a leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the superior Courts' that unless very explicit words are used in the statute itself in that behalf such an intention would not normally be imputed to the Legislature. It is no doubt true that in construing a statute the Courts are normally reluctant to attribute to the Legislature an intention of introducing a radical or sudden change of policy unless they are compelled to do so by the express and unequivocal manifestation of the intention of the Legislature, but at the same time it has to be pointed out that there is always a strong presumption that the Legislature does not make mistakes." In the Full Bench case of Nasrullah Khan v. Member, Election Commission P L D 1966 Lah. 850, it has been similarly observed : "it is a time honoured principle of law that the jurisdiction of superior Courts is not taken away except by express words. Evershed M. R. during the course of the judgment of the Court o., Appeal in Goldsack v. Shore (1950) 1 A E R 276) observed that 'I accept the submission of Counsel for the plaintiff that the? jurisdiction of the King's Courts must not be taken to be excluded unless there is clear language in the statute which is alleged to have that effect'." In the case of Muhammad Yusuf v. Ali Nawaz Gardezi P L D 1962 Lah. 919, the following observations appear:- ??????.and it is a well settled principle that enactments purporting to abolish or curtail the jurisdiction of a superior Court are to be strictly construed. In Craies' 'Treatise on Statute Law', 5th Edition at page 116, the learned author, after preferring to the dictum of Lord Westbury in R. v. Hanson ((1821) 4 B & Aid. 519) that the creation of a new right of appeal is plainly an act which requires distinct Legislative Authority, goes on to observe :- 'Similarly as to ousting the jurisdiction of a superior Court : 'The General rule undoubtedly is', said Tindal, C. J. in Albon v. Pyke (1842) 4 M & G 421)'that the jurisdiction of superior Courts is not taken away except by express words or necessary implication'. Lord Salvesen said : 'A general rule applicable to the construction of statutes is that there is not to be presumed without express words, an authority to deprive the Supreme Court of a jurisdiction it had previously exercised or to extend the privative jurisdiction of the Supreme Court to the inferior Courts'." Dunbar v. Scottish County Investment Company (1920 S C 210). In the case of The State v. Habib Jalib P L D 1967 Lah. 1297, a Special Bench of the High Court while setting aside an order of Additional Sessions Judge granting bail observed as follows: "Before parting with the case we would like to make it clear that the jurisdiction of the High Court in the matter has, in no way, been whittled down except for the considerations laid down in rule 206 of the Defence of Pakistan Rules." Section 13 of the Ordinance does not deal with bail which is a well known concept in respect of a person accused of an offence punishable with sentence of imprisonment. It is of advantage to consider the Scheme of the Ordinance and the Rules. Section 9 deals with exclusive jurisdiction of Special Tribunal to try contravention of curtain Rules. Section 10 prescribes the procedure of Special Tribunal and says it shall follow the warrant procedure under the Code of Criminal Procedure in which no procedure is prescribed by the Ordinance or the Rules. It empowers the Tribunals to try an offender in his absence in certain contingency and says that it is not hound to adjourn a trial. It is appropriate to mention here that all these indicate that the intention of the Legislature is to expedite and conclude the trial of a case without loss of time. Section 12 deals with powers of the Special Tribunal, namely, that he can pass any sentence authorised by law and shall have all the powers conferred by the Code of Criminal Procedure on a Court of Sessions exercising original jurisdiction. Section 14 preserves the jurisdiction of ordinary Courts except provided otherwise in the Ordinance, or the Rules, etc. Section 15 says that ordinary avocation of life shall be interfered with as little as possible. Rules 206 and 208 deal with general powers to arrest without warrant and further powers of arrest and detention and the latter says that if the person arrested is prepared to furnish security he may be released on his bond. This is indicative of the intention of the Legislature that an offender should not be unnecessarily kept in detention. Rule 209 deals with cognizance of contravention of Rules etc. by a Court or Tribunal. Rule 210 deals with bail to a person accused or convicted of contravention of the Rules or orders made thereunder. Rule 21.0 reads as follows "

210. Special Provision regarding bail.-Notwithstanding anything contained in the Code no person accused or convicted of a contravention of these rules or orders made thereunder, if in custody, shall be released on bail or on own bond unless (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these rules or orders made thereunder as the Federal Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention." It will, thus, be noticed that rule 210 above deals with the subject of bail specifically as such and that although it mentions 'Court' it does not mention "Special Tribunal". The omission is deliberate for the jurisdiction of the ordinary Court has been specifically preserved in certain matters Including power to grant bail. Furthermore, under section 12 of the Ordinance the. Special Tribunal having been clothed with powers of a Court of Sessions may exercise concurrent power of granting bail under section 498 of the Code of Criminal Procedure with the High Court, but it can only do so when it has already taken cognizance of a case under rule

209. The High Court's jurisdiction to admit to bail under section 498 of the Code of Criminal Procedure is not ousted either under section 13 of the Ordinance or under rule 210 of the Rules. The jurisdiction of other competent Courts to grant bails before the Special Tribunal takes cognizance is also not ousted, nay, it as preserved under section 14 of the Ordinance. Thus, whichever way it is looked at section 13 does not in any way oust the jurisdiction of the High Court to grant bail under section 498 of the Code of Criminal Procedure or divest the Court of its powers thereunder. The cases cited at the bar in support of the proposition that once a case has been completely withdrawn from the general system of the Code of Criminal Procedure or ordinary civil or criminal Court, and remitted to the Special Tribunal, the Code or the ordinary Court loses its application or contact with the case, are not applicable ill the present case for the simple reason that neither the case has been so completely withdrawn from the operation of the Code nor has the ordinary Court lost all contact with the case. As has been noticed already the Code does apply to the case in many respects, and the jurisdiction of the ordinary Court has been specifically preserved, except as provided to the contrary under section 14 of the Ordinance. It is not disputed that at least prior to the taking cognizance of a case by the Special Tribunal the Court under the Code of Criminal Procedure has jurisdiction to pass necessary orders regarding custody and bail. It is also quite clear that certain orders of the Special Tribunal are appealable to the High Court. There remains the restrictions imposed under rule

210. In regard to clause (a) of this Rule the prosecution is required to be given an opportunity to oppose the application for bail. If the application is not opposed it has a plain sail, and is the case of an offence punishable with a maximum of only five years' imprisonment bail is granted In the ordinary course. If, however, the prosecution opposes the application for bail, then bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused i9 not guilty of the contravention alleged against him. It may be pointed out here that 'Custody' is never meant to be a punishment. It is designed to facilitate Investigation or trial by making the accused available for either whenever required for those purposes. In case of a grave offence, for example, one under section 302 of the Pakistan Penal Code which is punishable with death or life imprisonment, bail is ordinarily refused to prevent the likelihood of the accused absconding, or skipping the bail. Therefore, except in case of a grave offence refusal to admit him to bail unreasonably may amount to punishment without trial. It will, indeed,) result in keeping an accused in Jail without trial for an indefinite period, if due to excessive number of cases awaiting trial before a single Special Tribunal of exclusive jurisdiction it is physically unable to quickly try or dispose of a case, and yet the accused is unreasonably refused bail although there is no likelihood of his absconding or skipping the bail. Keeping such a situation in mind, we must give a reasonable interpretation, consistent with the scheme of the Ordinance and justice, to the requirement of rule 210 of the rules that no person accused or convicted of a contravention of the rules etc., if in custody, be released on bail? unless the court is satisfied that there are reasonable grounds fear believing that he is sot guilty of such contravention. The Ordinance and the rules not only invested the Special Tribunal with exclusive jurisdiction to try contravention of the rules but have also clothed it with powers to try a case quickly without avoidable loss of time. They further invest the Tribunal with powers to try the accused in his absence, and to refuse to adjourn a case. If, however, due to the lack of foresight can the part of the Legislature or the authority concerned, the Scheme of the Ordinance and the Rules in regard to a vital part fail, the sanctity of the other part must of necessity be affected and what appeared to be rigid must give wax to flexibility. In such a situation it is only fair and equitable that the prosecution should not oppose bail, and if it does so, the Court is entitled to and should regard the opposition as unreasonable and grant bail. In clause (b) of rule 210 of the Rules the words "where the prosecution opposes the application must be construed to mean opposes on reasonable grounds, and not opposes for the sake of Opposition in order to bring in aid the stringent condition in the clause for the purpose of keeping the accused in custody indefinitely. According to the accepted principles of interpretation a reasonable intention must always be attributed to the Legislature. Again statutes which encroach on the right of the subject, whether as regards person or property should be so interpreted, if possible, so as to respect such rights vide Maxwell on Interpretation of Statutes,' 11th Edition, pages 275-276, section

2. Incidentally opposing the application without any reasonable ground will be a mala fide act and a mala fide act has no existence in law and the Court or Tribunal in such case can proceed as if the prosecution though given an opportunity has not opposed. Coming now to the condition. itself, without in any way prejudicing the trial of the case, I can only say teat having regard to the background of the two cases, the unseemly hurry with which and the curious circumstances in which they were registered against the petitioner, and the allegations themselves, it would have been legitimate for any Court to be prima facie satisfied that at least for the limited purpose of releasing him from custody, there are reasonable grounds for believing that he is not guilty of the contravention alleged against him. In Crime No. 14 of 1976 the allegations are that when the petitioner while in police custody was asked by the Police Officer to proceed to Court in order to obtain his remand he spoke against the society, the Government, the police and the Courts before Police Officers and two persons present at the Police Station, namely, Ataur Rahman and Muhammad Ishaque. We are told that the Challan in this case was submitted on the 1st of March 1976, and the Special Tribunal rejected the bail application on the 5th of March 1976. It is indeed curious that a person of the position of the petitioner, and in the situation he was placed in, should have reason to believe that he would make any impression upon the Police Officers. In First Information Report No. 14 of 1976, Police Station Risala, again the- alleged outburst was said to have been made while in police custody in the compound of the City Court, Karachi, on the same day, i.e., 14th of February 1976, at 10-45 p.m. in presence of the Police Officers including the said S, H. O. Jamil Akhtar Kiyani and two persons, Muhammad Zawar and Abbas Hussain. The learned Advocate. General tells us that the challan in this case was submitted on the 11th of March 1976, and yet the petitioner's application for bail first made on the 28th of February 1976, and repeated on the 1st of March 19%6, were rejected by the Special Tribunal on the 10th of Match 1976, that is, even before the Tribunal took cognizance of the case. And the High Court when approached against this manifestly illegal order, refused to interfere. Were these facts prima facie not enough to satisfy the Court either that the act of the police in Making the allegations is against the petitioner or keeping him in custody was mala fide gnu a mere colourable exercise of power or a fraud upon the statute or that there were reasonable grounds that the petitioner was not guilty of the contravention alleged against him ? I may reproduce here with advantage the following observations of this Court in the case ref Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri: "In this connection I would also like to point out that it is a misconception to think that either under the Defence of Pakistan Ordinance or the Rules framed thereunder any arbitrary, unguided, uncontrolled or naked power had been given td. any authority. My approach to these provisions is that they only confer a power which is coupled with a duty. The power can only 5e exercised after the duty has been discharged in accordance with the guidelines provided in the statute and the Rules. . In addition to this the detaining authority has also to keep in mind that section 15 of the Ordinance itself requires that the authority concerned should interfere as little as may be consistent with the purpose of ensuring the -public safety and interest and the defence of Pakistan with the ordinary avocations of life of the person sought to be detained. Do these previsions then give such arbitrary or plenary powers as is now sought to be contended for by the learned counsel appearing in support of the appeal ? Do they indicate that the reasonableness of the action of the detaining authority is a matter entirely foreign to the provisions of the Ordinance? I think not. In my opinion, the of the action is on the face of these provisions also a? necessary ingredient with regard to which the detaining authority must form an opinion and if it fails to do so, then its action cannot be said to be an action in accordance with law. Thus, according to me, the reasonableness of the action at least to the extent indicated in Abdul Baqi Baluchs case is not only a necessary concomitant of them, power given to the High Court under Article 98 of the Constitution but also an essential requirement of the Defence of Pakistan Ordinance and the Defence of Pakistan Rules themselves." ??????????? I also reproduce with approval the following observations made by Chief Justice Sardar Muhammad Iqbal in the case of Muzaffar Hussain v. State P L D 1974 Lah. 242 : "It is manifest that the rule does not contemplate that the Court must hold that the accused person is innocent and then admit to bail. if this had been the intention, then the very concept of bail under the Defence of Pakistan Rules would be negated. In view of the allegations made in a report against an accused person it may be most difficult. if not impossible, to hold in any case that a person is positively innocent. Moreover, a person cannot be held to be innocent in proceedings for bail because if the Courts are to do so, they will have to scan the whole record and pass judgment, which will indubitable be wrong in a case where truth or falsity of the allegation is yet to be determined in the light of the evidence which may have to be led. It will be against the fundamental principles of jurisprudence and the concept of justice to permit such a course of action, It is, in fact, the duty of the Court to ensure brat nothing is said in the order of judgment which may pre-judge an issue, because it may prejudice either of the parties, and also affect the objectivity of the judicial officer. I am clear in my mind that what the Court is to see in such circumstances is not that the accused is demonstrated to be innocent but whether reasonable grounds exist to show that he has not committed the offence. It is in the light of the allegations of the prosecution, the denial of the accused and the attendant facts and circumstances that one has to form an opinion whether reasonable grounds exist to believe that the person is guilty of the alleged offence. The same view was taken in Jan Muhammad v. State (P L D 1973 Lah. 643) where it was observed that; if clause (b) of rule 210 of the Defence? of Pakistan Rules, 1971, is attracted to the facts of a case. bail cannot be granted to the accused in?? that case unless he satisfies the Court that there are reasonable grounds for believing that he is not guilty of the offence alleged against him. In Mian Tufail Muhammad v. The State (Petition for Special Leave to Appeal No. 36 of 1973) their Lordships of the Supreme Court admitted the petitioner to interim bail in the case which was registered against him under rule 32 read with rule 213 of the Defence of Pakistan Rules, 1971, by observing that at the stage when the question of interim bail is under consideration, the Court cannot undertake 'an examination. And analysis of the speech alleged to have been delivered by the petitioner. It was further observed that stage has not yet arrived However, as important questions of law touching the liberty of the subject have arisen in this case and we have granted leave to appeal to examine them, we would allow interim bail to the petitioner??.." ??????????? Considered from any angle I think if the learned Single Judge of the High Court had gone a little deeper into the matter he would have allowed bail to the petitioner in both the cases. Similarly if the Special Tribunal itself had bestowed the attention to the cases deserved, it might have considered the petitioner's application for bail favourably. None better than the Special Tribunal itself should have known its limitations regarding the early disposal of the cases. As it is the petitioner has been in continuous custody of the police or in Jail since the 6th of February 1976: The conclusions I have arrived may be summed up as follows : (i) Section 13 of the Ordinance does not oust the jurisdiction of the High Court to grant bail under section 498 of the Code of Criminal Procedure In a case exclusively triable by a Special Tribunal. (ii) The section also does not affect the jurisdiction of the High Court under section 561-A of the Code of Criminal Procedure to intervene in a case of abuse of powers of Court, or misuse of powers under the Ordinance or the Rules. I, therefore, hold that the High Court bad the power to release and should have released the petitioner on bail. In the peculiar facts and circumstances of the cases it is indeed against the interests of justice -that the cases should be sent back to the High Court for disposal according to law. Since this Court has heard elaborate arguments from both the parties and has also heard the learned Attorney. General, who appeared at the instance of this-Court, it is desirable that the petitions should be converted into appeals, as we usually do in such cases. and the appeals be allowed, and the petitioner be released on bail in both the cases in the sum of Rs. 5,000 (rupees five thousand) in each case with one surety of the like amount to the satisfaction of the Registrar of the High Court of Sind & Baluchistan at Karachi. I would order accordingly. MUHAMMAD AKRAM, J.-These are two criminal petitions for special leave to apps::: from separate orders dated .17-3-1916 passed by a learned Judge of the High Court of Sind & Baluchistan at Karachi, whereby he dismissed, as incompetent, the applications moved by the petitioner for bail in the two cases registered against him under rules 42(6)(e) and 49 of the Defence of Pakistan Rules, 1971. The petitioner, Ch. Zahur Ilahi, is a Member of the National Assembly of Pakistan. He is a prominent member of the Opposition group in the House. He -was recently elected as the Deputy Leader of the Opposition in the National Assembly. His grievance is that on numerous previous occasions he was arrested by the Government and bailed out by the superior Courts of the country and that a practice has developed on the part of the Government to harass him and unnecessarily implicate him in cases with a view to keep him permanently behind the bars. In that connection, it is alleged by the petitioner that recently on the 4th February, 1976, when he sensed his arrest at the hands of the police be filed a petition (Cr. Miss. No. 446-B/76) under section 498 of the Criminal Procedure Code, in the Lahore High Court at Lahore. On this on the same day, the learned Chief Justice allowed ad interim bail before arrest to him subject to notice to the State for the 5th February, 1976. On the 5th February, 1976, the Advocate-General, Punjab, appeared for the State and disclosed that the appellant was wanted by the police in a case registered at the Police Station, Gujrat under sections 302/34 and 120-B, P. Y. C. for the murder of Ch. Muhammad Anwar Samma, a member of the Punjab Legislative Assembly and a former Provincial Minister, who was .shot dead at 12-15 p.m. on the 23rd January, 1976 in the premises of the Court of a First Class Magistrate at Gujrat. The allegation against the petitioner was that he had entered into a criminal conspiracy with the assassins in consequence of which the deceased was murdered by the two accused named in the F.

1. R. On this the learned Chief Justice rejected the bail application of the petitioner on the 5th February, 1976 and he was arrested in the case. The petitioner then filed a Petition for Special Leave to Appeal (No. 43 of 1976) from the order in this Court on the 10th February, 1976. At the hearing on the 12th February, 1976, tile Advocate-General, Punjab, entered a Caveat for the respondent and the petition was converted into an appeal. This Court, after hearing the parties, accepted his appeal and allowed bail to him in the murder case on the 12th February, 1976. After completing the necessary formalities, the Superintendent of the Office of the Supreme Court left Lahore with the Robkar and arrived at the Police Station, Sadder, Gujrat by about 5 p.m. in the evening, where the petitioner was being kept in custody, to effect the service for his release on bail on the Station House Officer. But it is alleged that the Station House Officer, on receiving the Robkar declined to release him on the ground that he was wanted in another case, of which the particulars were not disclosed at the time by the Station House Officer. On receipt of this information on telephone at Lahore on the 12th February, 1176, an application under sections 491 and 498, Cr. P. C. (Cr. Misc. No. 547-B/76) was moved on behalf of the petitioner in the Lahore High Court. On this, on the same day, on 12th February 1976, a )earned .fudge of the Court passed an order directing the Inspector-General of police Punjab to cause the production of the petitioner before him on the 13th? February 1976, at the hearing before the learned Judge on the 13th February 1976, he sent for the Advocate-General who accepted notice of the petition. The learned Advocate-General stated at the Bar that the petitioner gas no longer in the custody of the Punjab Police, which was delivered to the Sind Police at 7 p.m. on the 12th February 1976 in pursuance of remand granted to that Police by a Magistrate at Gujrat for four days. In that connection he also stated at the hearing that the Superintendent of Police, Gujrat was already on his way to Lahore with the relevant record. The Court, therefore, thought it desirable to adjourn the hearing to the next day on the 14th February 1976, the P. D. S. Y., Gujrat produced before the High Court at Lahore copies of the relevant entries on the Daily Diary maintained in the Saddar Police Station, Gujrat showing that a Sub-Inspector from Karachi had arrived at the Police Station at 11-10 a.m. on 12-2-1976 in order to arrest the petitioner in connection with a Criminal Case (No. 12/76) registered against him under section 16 of the Maintenance of Public Order Ordinance, on the 8th of February 1976 at the Police Station, Civil Lines, Karachi. He, therefore, formally arrested him, but because the petitioner was already under Police remand till the 20th February 1976, in the murder case, the Sub-Inspector decided to wait and take him to Karachi only after the expiry of the period of remand. After the petitioner was allowed bail by the Supreme Court and the release order, according to the relevant entry in the Daily Diary, was served at the Police Station at 5-20 p.m. on 12-2-1976, the petitioner was shown to have been released immediately in the record of the Police. But it is difficult to say if he was in fact released from his confinement in deference to the order passed by this Court allowing bail to him. He was formally shown as arrested by the Karachi Police and the Sub-Inspector teen decided to take the petitioner to Karachi that very day after taking the necessary police escort from the Saddar Police Station, Gujrat. He proceeded to the A. C., Gujrat along with the petitioner to obtain a remand. The Sub-Inspector from Karachi succeeded in getting his remand and then left Gujrat at about 7-15 p.m. with the petitioner for Karachi on the 12th February 1976. At Lahore, in Cr. Misc. No. 547-B/76, on the 18th February 1976, under the order of the High Court the learned Advocate-General filed a list of the seven other cases registered against the appellant in the Province of the Punjab, in which he was also wanted by the police. In these circumstances, on the 15th February 1976, Ch. Manzoor Ilahi, brother of the petitioner, filed Writ Petition No. 426 of 1976 under Article 199 of the Constitution of Islamic Republic of Pakistan in the High Court at Lahore complaining against the deliberate circumvention of the order passed by the Supreme Court allowing bail to him and challenging the validity of the orders for his continued detention. The two petitions (Cr. Misc. No. 447-B/76 and Writ Petition No. 426/76) are still pending in the Lahore High Court at Lahore. It appears that the Criminal Case (No. 12 of 1976) under section 16 of the Maintenance of Public Order Ordinance was registered against the petitioner by Jamil Akhtar Kayani, Sub-Inspector Incharge, Police Station, Civil Lines, Karachi on the 8th February 1976 on the basis of a letter dated 19-1-1976, addressed to him by one, Ch. Muhammad Sadiq. He alleged that on the 18th January 1976, he was standing in the lawn of the Hotel Intercontinental at Karachi at about 5 p.m.. when he saw the petitioner talking to about 10 or 12 persons, who had gathered round him, and using invectives against the Government in power. In that case registered against him, as stated above the petitioner `vas arrested by the Karachi Police at Gujrat (Punjab) and brought to Police Situation, Civil Lines, Karachi and was remanded to judicial custody. On the 23rd February, 1976, the Additional Sessions Judge (V), Karachi allowed bail to the petitioner in that case. Two mope cases were registered against the petitioner at the Police Station, Civil Lines, Karachi and Police Station, Risala, District Karachi on the 14th February 1976 Crime Case No. 14/76 was registered against him by the Sub-Inspector Jamil Akhtar Kayani on the 14th February 1976, at 7-55 hours. According to the allegation when lie asked the petitioner to go with him to the Court of the Sub-Divisional Magistrate, Karachi for remand, he got furious. insulted, abused, and threatened the Police Officer and his family members with dire consequences and also by his act and conduct excited disaffection towards the Government established by law in Pakistan. Therefore, a case was registered against him by the Sub-Inspector under rule 42 (6) (e) read with rule 49 of the Defence of Pakistan Rules and section 506/199, P. P. C. It may be stated that while on the 23rd February 1976, the petitioner was granted bail by the Additional Sessions Judge, Karachi in Crime Case No. 12/76 under section 16 of the Maintenance of Public Order Ordinance, the Sub-inspector Police Station, Civil Lines, on the same day moved an application before the Assistant Commissioner/Sub-Divisional Magistrate, Civil Lines, Karachi to the effect that the accused was a political leader and an influential person. He had been granted bail in the other case in which he was arrested. In case he was set at liberty, it shall be difficult to arrest him again. He. therefore, prayed that the accused may be considered as arrested in Crime Case No. 16/76 and reminded to judicial custody. Accordingly, on the 23rd February 1976, the Sub-Divisional Magistrate observed that the police had still to investigate into the case and remanded the accused to judicial custody till 8th March 1976. In these circumstances, on the 25th February 1976, a charge-sheet in the case was prepared against the petitioner. On the following day, on the 26th February 1976, by Notification No. XX (25) S. O. J.-1/73 (Part 11), published in the Extraordinary Gazette of Sind Government, in exercise of the powers conferred by subsection (1) of section 8 of the Defence of Pakistan Ordinance, 1971, read with taw Government of Pakistan (Cabinet Division) Notification No. 7/2/76-M, dated the 21st February 1976 and section 9 of the said Ordinance, a Special Tribunal was constituted for whole of the Province of Sind and it was inter alia directed that the tribunal shall have exclusive. jurisdiction to try offences Inter alia under rules 42 and 49 of the Defence of Pakistan Rules. 1971. Accordingly the above case against the petitioner was transferred from the Court of the Sub-Divisional Magistrate, Civil Lines. Karachi to the Special Tribunal, Karachi for trial. On or about 28th February 1976, the petitioner applied to the Sind Special Tribunal under section 497, Cr. P. C. read with rule 210 of the Defence of Pakistan Rules for bail. But win the 5th March 1971, the Special Tribunal rejected his bail application on the ground that the wise hues been recently challaned and his trial was being fixed at an early date, and also because the accused was involved in another case for similar offences before the same Tribunal, showing that he was in the habit of making inflamatory speeches calculated to create hatred and disaffection against the Government established by law. Dissatisfied, the petitioner applied to the High Court of Sind & Baluchistan at Karachi (Cr. Bail Application No. 253 of 1976) for bail under rule 210 of Defence of Pakistan Rules read with section 498, Cr. P. C. But on the 17th March 1976. a learned Judge of that Court rejected the application on the ground that a Division Bench of that Court had already held in Cr. Bail Application No. 101/74 that a bail application in a case pending before the Special Tribunal under the Defence of Pakistan Rules was not competent and the jurisdiction of the High Court was barred to allow bail in such cases. This gave rise to the above Criminal Petition for Special Leave to Appeal No. 26-H of 1976 from the order dated 17th March 1976 passed by the High Court in the case. ?As already stated above, yet another case (Cr. Case No. 14/76) was also registered against the petitioner at the Police Station, Risala, District Karachi at 11-5 p.m. on the 14th February 1976 at the instance of S. H. O., Muazzam. According to him, he was present at 10-40 p.m. in the compound of the City Court, Karachi, when he saw the petitioner standing in custody and making noises and inflamatory speech exciting hatred against the Government and the Courts. He was alleged to have thus committed offences under rule 42 (6) (e), read with rule 49 of the Defence of Pakistan Rules, for which the case was registered against him. In this case also on or about the 28th February 1976, the petitioner at first moved an application before the Sind Special Tribunal, Karachi under section 497 of the Cr. P. C. read with rule 210 of the Defence of Pakistan Rules for release on bail. But afterwards on the 1st March 1976, he moved another application under sections 497 and 498, Cr. P. C. read with rule 210 of the Defence of Pakistan rules with the request that this previous application dated the 28th February 1976 may be treated as an application for anticipatory bail as he was not shown to have been formally arrested by the police in the case. Nonetheless, on the 5th March 1976, the Sind Special Tribunal rejected the application on the sole ground that there was no provision under rule 210 of the Defence of Pakistan Rules for allowing bail before arrest. The petitioner then applied to the High Court fur bail. But his application was likewise dismissed by a learned Judge of the Sind & Baluchistan High Court on 17-3-1976. In these circumstances the petitioner has filed the other Cr. Petition for Special Leave to Appeal No. 27-R of 1976 in this Court from that order passed by the High Court . We have heard the learned counsel for the parties in these two appeals before us. The Defence of Pakistan Ordinance XXX of 1971 was made and promulgated on 23-11-1973 and it came into force at once. According to its preamble the Ordinance was promulgated in pursuance to the Proclamation of Emergency of the 25th day of March 1965, read with the Provisional Constitution Order, to provide for special measures to ensure the security, the public safety and interest of defence of Pakistan and for the trial of certain offences. Before proceeding further, it is necessary to bear in mind some of the more important provisions of this Ordinance, subsection (1) of section 3 of the Ordinance, generally lays down that the Central Government may, by notification in the official Gazette, make such rules as appears to it to be necessary or expedient for ensuring the security, the public safety and interest and the Defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, or for maintaining supplies and services essential to the life of the community. Sub section (2) in particular provides that without prejudice to the generality of the powers conferred by subsection (1), the Rules may provide for. or may empower any authority to make orders providing for. all or any of the matters enumerated thereunder. Then follows a list of 44 matters specified therein on which the Jules can be made. Subsection (3) (1) (i) lays down that the rules made under subsection (1) may further provide for the arrest and trial of persons contravening any of the rules or any order made thereunder, In that connection subsection (4) provides for the delegation of powers and duties by the Central Government.. Under section 4 of the Ordinance, any rule made under section 3, and any order made tinder any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Ordinance or in any instrument having effect by Virtue of any enactment other than this Ordinance. Chapter III, sections 8 to 13, deals with the constitution of Special Tribunals established under the Ordinance, their jurisdiction, power and procedure to be followed by them in the trial of offences under it. Section 8 lays down that the Central Government may, for the whole or any part of Pakistan, constitute special Tribunals which shall consist of three members appointed by the central Government. One of the members of the Special Tribunal shall be qualified for appointment as a Judge of the High Court. Under section 9, the Central Government may, by general or special order, direct that a Special Tribunal shall try any offences ; (a) under any rule made under section 3 ; or (6) punishable with death, transportation or imprisonment for a term which may extend to 7 years triable by any Court having jurisdiction within the local limits of the Special Tribunal, and may in any such order direct the transfer to the Special Tribunal of any particular case from any other Special Tribunal or any other criminal Court not being a High Court. Section 10 deals with the procedure of the Special Tribunal. Under subsection (1). of this section, a Special Tribunal may take cognizance of offences without the accused being committed to it for trial. Subsection (2) lays down that save in cases of trial of offences punishable with death or transportation for life, it shall not be necessary in any trial for a Special Tribunal to take dawn the evidence at length in writing, but the special Tribunal shall came a memorandum of the substance of what each witness deposes to be taken down in the English language. Subsection (8) of this section in particular revs down that a Special Tribunal shall, in all matters in respect to which no procedure has been prescribed by the Ordinance or by rules made thereunder, follow the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases by Magistrates, Under section 12, a Special Tribunal may pass any sentence authorised by law and shall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction. Section 13 of the Ordinance is an important provision. Under subsection (1) a limited right of appeal is provided to a person sentenced by a Special Tribunal ; (a) to death or transportation for life, or (b) to imprisonment for a term extending to ten years in cases specified therein. But gave as aforesaid and notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there is no appeal from any order or sentence of a Special Tribunal and no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the code, or have any jurisdiction of any kind in respect of any proceedings of a special Tribunal. Last of all, I may refer to section 14 of the Ordinance. It lays down that except as may he provided in this Ordinance or in any rule made thereunder or in any order made under airy such rule by the central Government or the Provincial Government, the ordinary criminal and civil Courts shall continue to exercise jurisdiction. The Central Government, in exercise of its rule-making power under section 3, has framed Defence of Pakistan Rules, 1971. Rule 42 (6) (e) of the Rules defines "prejudicial act" to mean an act which is intended or is likely to bring into hatred or contempt, or to excite disaffection towards the Government established by law in Pakistan. Under rule 49 (1) (e), no person shall. without lawful authority or excuse, do any "prejudicial act" and rule 49 (5) lays down that a person committing contravention of the rule is punishable with imprisonment for a term which may extend to five years or with fine or with both. The special provisions for bail are contained in rule 210 of the Defence of Pakistan Rules, 1971, which is of utmost importance for the purposes of this case. Under the scheme of the Defence of Pakistan Ordinance, 1971; special measures were adopted to ensure the security, public safety and interest and defence of Pakistan during the emergency and threat from external aggression. To meet the emergency, it became necessary to introduce legislative measures with a view to arm the Government with wider powers to cope with the situation and machinery vas devised, if necessary, to arrange for speedy trial of offences cinder the Ordinance. The Defence of Pakistan Rules, 1971 were made inter aria defining various offences and the contraventions of the rules and the orders passed thereunder was made punishable. Subject to and; general or special order made by the Central Government these offences could he treated by the ordinary criminal Courts of the country under the Code of Criminal Procedure as modified by the Defence of Pakistan Rules, if any. But under section 9, the Central Government may by a general or special order, direct that Special Tribunal constituted under the Ordinance shall try any offence, under any rule made under section 3, or punishable with death, transportation or imprisonment for a term which may extend to seven years. In the absence of anything to the contrary in the Ordinance or the Rules made thereunder, the Special Tribunal is required to follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates. Under section 13 a very limited light or appeal in specified cases is conferred on a person sentenced by a special Tribunal. This section also contains clauses ousting the jurisdiction of the blurts to question the validity of any order or sentence passed by the Tribunal. Before us the controversy between the contending parties largely ranged round the jurisdiction of the ordinary criminal Courts including the High Court to entertain a bail application of a person accused of offences under the Offence of Pakistan Rules, 1971, after the Special Tribunal has taken congnizance of the case against hint. In that connection, before us, the learned Advocate-General, Sind, for the State, strongly relied on the latter part of subsection (1) of section 13 of the Defence of Pakistan Ordinance, 1971 and contended that under it, the jurisdiction of Courts, including the High Courts was wholly barred to entertain any such application after the Special Tribunal was seized of the case, Mr. M. Anwar, appearing for the petitioner, submitted that section 13 of the Ordinance constitutes an attack on the cherished liberty of the people and tends to bar the jurisdiction of the ordinary Courts. These provisions must, therefore, be strictly construed in the interest of the liberty of the people arid to safeguard the Courts of general jurisdiction against the usurpation of the powers vested in them under the law. At any rate the bar of jurisdiction is not directed against the superior Courts and it does not deprive the High Court of its powers vested under section 498 of the Code tee allow bail. ??????????? At this stage it shall be useful to make a little detour to have a bird's eye view of the history of this legislation in this sub-continent. In the days of British ;India after the outbreak of the First World War the defence, of India (Criminal Law Amendment) Act IV of 1915 way passed tai secure, the public safety and the defence of British India. This was a temporary measure adopted to cope with the emergency and its operation was to cease six months after the termination of the war. For a more speedy trial of certain offences during the war commissioners wove appointed by the, Government to try certain criminal offences under the powers granted by the said Act. In section 11, it was laid down that "no order under the Act shall be called in question in any Court, and no suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act." 1i; interpreting that section. in Sheo Nandan prasad Singh v. Emperor A I R 1918 Pat. 103 a Fell Bench of the Patna High Court held that "the defence of India Act did not purport to take away any existing powers of superintendence of High. Court, but merely created a new Court which was independent of the High Court. The power of superintendence conferred on the High Court by section 15, High Courts Act, was confined to superintendence over those Courts which were subject to the appellate jurisdiction of the High Court. The Special Tribunals created under the Defence of India Act were, by the very Act which created them, subject to no appellate jurisdiction whatever. It was clearly expressed in Defence of India Act that the decision of the Commissioners appointed under the Act should be final and conclusive and that no other Court should have any power of interference either by way of appeal, revision or in any other way whatsoever." In the opinion of Ali Imam, J., the words of exclusion contained in section

8. Defence of India Act, embraced not only the appellate and revisional jurisdiction of the High Court over the commissioner appointed under the Act, but also powers of superintendence, which was one of the ways a which the High Court exercised its jurisdiction over inferior Courts, Similarly in Samaila v. Emperor A I R 1917 Lah. 138 the Punjab Chief Court held that a Notification issued under section 3 (1) of the Defence of India Act, 1915 toad the effect of ousting the jurisdiction of the regular Courts in respect of be offences and persons mentioned therein. , . On the outbreak of the Second World War the Defence of India Act No. XXXV of 1939 was passed during the emergency to provide for special measures to ensure the public safety and interest and the defence of British India and for the trial of certain offences. It was also a temporary measure and was to remain in force during the continuance of a war and for a period of six months thereafter. After the creation of Pakistan, owing to the aggressions by the Indian forces in the years 1955 and 1971, the Defence of Pakistan Ordinance, 1965 and the Defence of Pakistan Ordinance, 1971 were promulgated in this country. By and large they are based on the pattern of the Defence of India Act, 1939 and most of? its relevant provisions were bodily incorporated into the two Ordinances, but with one big difference that unlike the Defence of India Act, 1939, they do not purport to have been made as temporary measures only and they do not cease to remain in force with the termination of the hostilities or for a period of six months thereafter. because of the emergency then prevailing, these Ordinances, as their preamble shows, were designed to provide for special measures to ensure the security, the public safety and interest and Defence of Pakistan and for the trial of certain offences. But even long after the cessation of the hostilities arid the return of peace, the Defence of Pakistan Ordinance, 1971, with all its rigours, has remained in force since then. This has its own effect on the corpus juris of this country. As already stated above, at present, the provisions for the exclusion of jurisdiction of the ordinary Courts are contained in subsection (1) of section 13 of Dafence of Pakistan Ordinance, 1971. For facility of reference it is reproduced below in extenso: "A person sentenced by a Special Tribunal- (a) to death or transportation for life, or (b) to imprisonment for a term extending to ten years under section a of this Ordinance or under subsection (4) of section 5 of the Official Secrets Act, 1923 (XIX of 1923), as amended by section 7 of this Ordinance shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal for any order or sentence of a Special Tribunal, and no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal" The subsection can be split up into two parts. In the first part a right of appeal to the High Court is conferred on a person sentenced by the Special Tribunal (a) to death or transportation for life, or (b) to imprisonment for a term extending to ten years under section 6 of the Ordinance or under subsection (4) of section 5 of the Official Secrets Act (XIX of 1923), as amended by section 7 of the Ordinance. It is further provided that save as aforesaid and notwithstanding the provisions of the Criminal Procedure Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of Special Tribunal. In other words, in no case, there is any right of appeal by a person sentenced by the Special Tribunal to imprisonment for a term which may extend to less than ten years. In the next following part of subsection (1) of section 13 of the. Ordinance, which is more in point for the purposes of this case, it is laid down that: "no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal." According to the learned counsel for the petitioner this at best bars the jurisdiction of the ordinary Courts only but it does not divest the superior Courts, namely the High. Courts, of their powers vested in them under section 498 of the Criminal. Procedure Code to admit any person to bail. On the other hand the learned Advocate-General for the State vehemently contended that there was sufficient indication in the subsection itself to show that this bar is equally applicable to the High Courts as well. In support of this contention he drew our attention to the fact that the bar under this subsection is sufficiently comprehensive so as to even take away the power solely vested in the High! Court under section 491 of the Code to issue directions in tile mattes' of "habeas corpus".' Before us, at the hearing none of the parties was able to cite any decided case directly having a bearing on the corresponding provisions in the Defence of India Act, 1939 and the Defence of Pakistan Ordinance, 1965. However, during the course of hearing before us our attention was drawn to a similar provision in the Special Criminal Courts Ordinance If of 1942 made and promulgated by the then Governor General of British India, as an emergency measure, in the exercise of the powers conferred on him by section 72 of the Government of India Act, 1935. In section 1 (3) of the Ordinance II of 1942, it was laid down that it shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province. Under the said Ordinance, special Courts of criminal jurisdiction were constituted for the trial of offences in the respective provinces during the emergency. In that connection the jurisdiction of the other Courts in the country was ousted under section 26 of the said Ordinance. It was laid down in this section that "Notwithstanding the provisions of the Code, or any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as is provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court". The relevant provisions of section 26 of the said Ordinance II of 1942 are similar to those in the last part of subsection (1) of section 13 of the Defence of Pakistan Ordinance, 1971 under consideration before us. I might mention here that Ordinance 11 of 1942 was replaced soon afterwards in the next year by the Special Criminal Courts (Repeal) Ordinance XIX of 1943. But during this short span of its life for a year or so, in spite of the express bar contained in section 26 of Ordinance II of 1942, a number of cases were actually taken to some of the respective High Courts in the country by persons convicted of the offences by the Special Courts constituted under the said Ordinance either by way of revisions or by petitions in the nature of habeas corpus under section 491 of the Criminal Procedure Code. This led to a number of reported cases, from some of the High Courts of the Provinces in British India bearing on the interpretation of section 26 of the said Ordinance. It shall be helpful to examine some of the leading cases on the point. In one of these cases one Benoari Lal and 14 others A I R 1943 Cal. 285, were convicted by a Special Magistrate purporting to act under Ordinance II of 1942. The convictions were set aside in revision by a majority of the Special Bench of the Calcutta High Court on the ground that the applicants were convicted by a Court which had jurisdiction to deal with them. An appeal by the Crown against the judgment was rejected by the Federal Court (A I R 1943 F C 36). But the Privy Council in Emperor v. Benoari Lai Sarma and others A I R 1945 P C 48 allowed the appeal against the judgment of the Federal Court, restored the conviction of the respondents therein in that case in an obvious reference to the provisions of section 26 of Ordinance II of 1942 in mind their Lordships of the privy Council observed as under: "The appeal from the Special Magistrate who convicted the accused was brought to the High Court under its criminal revisionary jurisdiction by a petition from revision under sections 435 and 439, Criminal P. C. This assumes that the Court below was a valid inferior Court whose decision calls. in the view of the appellants who were convicted and sentenced by it, for revision. But if the Special Magistrate who tried the case was a valid Court, duly authorised by the Ordinance. then by the very terms of the Ordinance there is no appeal to the High Court. Sen, J. at the beginning of his judgment in the High Court, points this out very clearly. If, on the other hand, the Ordinance had no validity, the Special Magistrate was in the same position as a private person who took upon himself to conduct a trial of the appellants and to sentence them to imprisonment without any authority at all. In this latter alternative. the remedy of release by process in the nature of habeas corpus (section 491, Cr. P. C.) would be the appropriate remedy." In that connection Sen, J. in his minority judgment in Benoari Lai Sarma and others v. Emperor in the passage approved by their Lordships of the Privy Council, observed:- "The trial was held in accordance with the provisions of Ordinance II of t942 by a Special Magistrate appointed under that Ordinance. Against this order of conviction they moved this Court and obtained this rule. The only question argued was that Ordinance II of 1942 was 'ultra fires' of the Governor-General to make. We did not enter into the merits of the case for obvious reasons. If the Ordinance is ultra vires it is not necessary to consider the merits; the convictions and sentences must be set aside whatever the merits of the case may be. as the Court trying the petitioners was no Court at all. If the Ordinance in 'intra sires' we are debarred by section 26 of the Ordinance from interfering with the decision of the Special Magistrate" From these observations the irresistible conclusion is that, according to the Privy Council, under section 26 of the said Ordinance, the High Court had no jurisdiction to sit in revision against the conviction by the Special Magistrate. In the opinion of the Privy Council, the appointment of the Special Magistrate was validly made under the Ordinance which was intra vires of the powers of the Governor-General. In Bunwarl Gope and others v. Emperor A I R 1943 Pat. 18, the petitioner therein were convicted by Special Magistrate appointed under Ordinance II of 1942. They then filed their separates revisions against their convictions before the High Court. A Full Bench of the Patna High Court held that the Special Magistrates derived their jurisdiction from the Ordinance and they did not function as inferior criminal Courts amenable to revisional jurisdiction vested in the High Court under the Code. In that connection the Court observed: "The next point to be decided is what power can be exercised by the High Court in these cases. It seems to me to be plain that the High Court cannot revise the order of conviction or sentence passed by Special Magistrates concerned under sections 435 and 439, Cr. P. C., because this power of revision can be exercised only as against orders passed by Magistrates exercising jurisdiction under the Code of Criminal Procedure. As the Special Magistrates received their jurisdiction from the Ordinance, they cannot be properly described as "inferior criminal Courts" and the High Court cannot revise their order. It does not however necessarily follow from this that the High Court is entirely powerless in the matter. Under section 491, Criminal P C., the High Court may direct that a person illegally or improperly detained in public or private custody within the limits of its appellate criminal jurisdiction be set at liberty. It seems obvious to me that if the Ordinance under which the petitioners were tried was not applicable to their cases, then their trial was no trial at all in the eye of law and they cannot be detained in a prison, because they should be deemed to have been committed to prison without a trial and because the Magistrates who have sentenced them to imprisonment had no power to send them to prison." Similarly, the majority of Full Bench of three Judges of the Allababad High Court in Salig Ram v. Emperor A I R 1943 All. 26 held that the words of section 26 of Ordinance II of 1942 are very wide and completely, bar the revisional jurisdiction of the High Court in cases tried and decided by Special Magistrates and Special Judges appointed under the Ordinance. Also in another case of Emperor v. Parmanand Rai and other's A I R 1943 All. 233, by majority of a Bench of five Judges, the High Court of Allahabad held that under section 26 of Ordinance II of 1942, the High Court is precluded from interfering in any manner whatsoever with the order of a Court validly constituted under the Ordinance. In that connection the Court observed: "As the Court of Special Judge is constituted under the Ordinance, this Court has no authority to revise the order of a Special Judge howsoever erroneous or unjust it may be. The learned Judge was clearly wrong is holding that the accused could not be tried in accordance with the provisions of the Ordinance and his order that they should be committed to the Court of Session after regular commitment proceedings was, therefore, also contrary to law. But as the revisional jurisdiction of the this Court has, by words of clear and unambiguous import, been barred, this Court cannot assume jurisdiction to correct an erroneous order passed by a Special Judge. As I read section 26 of the Ordinance, it appears to me that this Court cannot, in any manner whatsoever, interfere with the orders passed by a Court validly constituted under the Ordinance, be it a Court of a Special Magistrate or a Court of a Special Judge." In the Special Bench case of Sitao Jhalia Dhimar and others v. Emperor A I R 1943 Nag. 36 the Nagpur High Court has held that the Indian Legislature has power to establish Courts of special jurisdiction for special purposes and place them outside the purview of the High Court's superintendence under section 223 of the Government of India Act, 1935. The enactment which sets up special Courts may choose to keep them independent of the High Courts. Even the Provincial Legislature has power to establish such Courts functioning outside the sphere of the High Court's superintendence. On reference to section 26 of Ordinance II of 1942, the High Court observed: "It is the contention of the applicants before me, particularly in the argument offered by Mr. Mandlekar, that the concluding words of the section on which my brother Dig by relies have reference only to the proceedings taking place in any Special Court set up by the Ordinance and cannot debar enquiry as to the validity of the direction of a Government ordering certain persons to be produced before those Courts. On consideration I am of opinion that this contention must prevail. The sequence of the clauses debars this Court as well as other Courts, which would ordinarily have power in respect of some of the provisions, to hear appeals from any order or sentence, or to revise any order or sentence, or to direct transfers, or (and this would apply to this Court alone) to make any order under section 491 of the Code, or to have any jurisdiction of any kind in respect of any proceedings of any such Court. These last words must refer, in my judgment, only to any matter which takes place in that Court in proceedings before it, arid it is to be noted that the last twenty-seven words in the section constitute one phrase without an intervening comma. The effect of this is to limit the prohibition of making any order under section 491 to matters which are proceedings in a duly constituted Court and cannot operate as a bar to the entertainment of matters affecting the jurisdiction of the Executive to bring cases before such a Court." Indeed there are a number of other reported cases of the High Courts bearing on this interpretation of section 26 of Ordinance II of 1942, but it is unnecessary to notice them here. In the light of this preponderance of judicial opinion and on a parity of reasoning, I am pursuaded to hold that the ouster of jurisdiction of the Courts, warranted under the provisions contained ; section 13(1) of the Defence of Pakistan Ordinance, 1971 is applicable to the High Courts as well. But this bar is only to the extent that this section goes on a rational interpretation. Before coming to the scope of this section, it is necessary to recapitulate and analyse some of the other relevant provisions of the Defence of Pakistan Ordinance, 1971 and the Rules made thereunder. Section 3(3)(i) of the Ordinance lays down that the rules may be made to provide for the arrest and "trial" of persons contravening any of the rules or any order made thereunder. Under section 9 the Central Government may, by general or special order, direct that a Special Tribunal shall try any of the offences enumerated therein. According to subsection (1) of section 10 a Special Tribunal may take cognizance of offences without the accused being committed to it for trial. Subsection (2) briefly deals with the procedure to be followed by the Special Tribunal at the trial of the offences. Subsection (8) of this section expressly lays down that a Special Tribunal shall, in all matters in respect to which no procedure has been prescribed by this Ordinance or by rules wade thereunder, follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates. Under section 12 a Special Tribunal may pass any sentence authorised by law, and shall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction. An examination of all these provisions as a whole chows that the Special Tribunal is constituted only for the "trial" of the cases entrusted to it and the procedure is also direct towards that end in view. It does not deal with cases in their preparatory stages up to the point when they are made ready for trial. The Tribunal commences the proceedings before it by taking cognizance of the case. As much the "proceedings of a Special Tribunal" within the meanings of subs Lion (1) of section 13 of the Ordinance have a special connotation. The protection extended by this subsection i9 confined to the proceedings of a Special Tribunal" properly so-called and not to any and every proceedings before it. This distinction assumes importance on reference to the provisions in rule 210 of the Defence of Pakistan Rules, 1971 in the context of this case. It contains special provisions for bail to persons accused or convicted of offences under these rules or the orders made thereunder, and is reproduced ,below ; "Notwithstanding anything contained in the Code no person accused or convicted of a contravention of these rules or orders made thereunder, if in custody, be released on bail or on own bond, unless (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these rules or orders made thereunder as the Central Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention." Before proceeding further, it may be stated here that in exercise of the -powers conferred by clause (b) of the above rule 210 of the Defence of Pakistan Rules, the Federal Government has specified the provisions contained in clause (6) of rule 42 and rule 49, for the contravention whereof, the provisions of the aforesaid clause shall apply (ride Notification No. S.R.O. 669 (1)/72, dated 1-9-1972, published in the Gazette of Pakistan, Extraordinary on 1-9-1972). It may be seen that under rule 210 reproduced above the Court is expressly vested with the power to grant bail provided the conditions stated therein are fulfilled. Throughout in the Ordinance and the rules made thereunder, a distinction is maintained between the Courts having jurisdiction within their local limits under the Code of Civil Procedure and the Special Tribunals constituted under section 8 of the said Ordinance. For instance, section 9 lays down that the Central Government may, by general or special Order, direct that a "Special Tribunal" shall try any offence mentioned therein triable by any "Court" having jurisdiction within the local limits. Indeed section 14 of the Ordinance contemplates that except as provided the Ordinance, in any rule made thereunder or in any order made under any such rule, the ordinary criminal and civil Courts shall continue to exercise jurisdiction. Under this section read with rule 210 the jurisdiction to grant bail is expressly retained by and preserved in the ordinary criminal Courts in no uncertain terms. The language of this rule does not admit of an exception at all. It is applicable to persons accused or convicted of contravention of these rules or orders made thereunder. On a plain reading of this rule it cannot be held that it ceases to be applicable, after the' Government has passed a general or special order directing the trial of the cases by a Special Tribunal under section 9 of the Ordinance, or that thereby ipso facto the jurisdiction of the Court to grant bail is ousted in spite of express provisions in the rule. On the other hand there is nothing in this rule to show that it is applicable to the Special Tribunal, at the trial, for purpose of bail. Under section 10(8) in all matters in respect to which no procedure has been prescribed by the Ordinance or by the Rules made thereunder, a Special Tribunal shall follow the procedure prescribed by the Code for the, trial of warrant cases by Magistrates. Also it is laid down in section 12 that the Special Tribunal ;hall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction. This would mean that by reference to these provisions the Special Tribunal is only indirectly vested with the. power to entertain a bail application pending the trial of an accused before it. But that by itself is not sufficient to digest the hierarchy of the ordinary Courts of general jurisdiction of their powers directly and expressly vested in them to entertain a bail application under rule 210 at any stage of the Proceedings: A fortiori the High Court has concurrent jurisdiction in this behalf under rule 210 read with section 498 of the Code. It appears t be rather anomalous that while the Court is bound to observe the drastic conditions laid down in rule 210, the Tribunal is under no such inhibitions in allowing bail to the accused. As already discussed above, under section 9 of the Ordinance, the' jurisdiction is vested in the Special Tribunal to try certain offences mentioned therein. Strictly speaking, this ,jurisdiction to try does rant imply within it a power to allow bail, It rather falls outside the scope of the trial of an offence as such. Section 3(3)(1) of the Ordinance lays down that rules mad under subsection (1) may further provide for the "arrest and trial" of persons contravening any of the rules or orders made thereunder. In my opinion?; the power to allow bail is incidental to and flows from the arrest. In fact bail could be allowed after arrest independently of the trial and even without there being any trial. Power to make rules with regard to arrest impliedly? cannot a power to make rules for bail as well. In this connection I am unable to subscribe to the observations In re: V. Bhuvaraha lyengar A I R 1942 Mad. 221, tending to suggest that in the context of section 2(3)(1) of the Defence of India Act, 1939, the power to make power with regard to trial implies the power to make rules about the custody of accused. It shall be more appropriate to regard the power of custody of the accused as incidental to the power of arrest. The effect of granting bill is not to set the accursed fee, but to release him from custody of the law and to entrust him to the custody of sureties, who are bound to produce him to answer on his trial at a specified time and place. According to Corpus Juris Secundum, Vol. 8, page 46, "On the hearing of an application for bail the Court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against accused nor will it speculate on the outcome of the trial or on what further evidence may be there in offered and admitted." The proceedings for the bail of the accused at any stage of the, investigation, inquiry or trial are purely collateral proceedings not dependent on the trial of a case or its result. Indeed even under the scheme of the Code of criminal procedure the trial of offences is dealt with in separate chapters arranged under Part VI, while the subject of Bail is to be found in Chapter XXXIX under Part IX and the two subjects are treated as separate from each other. It was net denied before us that the Special Tribunal constituted under, section R of the Ordinance has all the trapping of a Court. As such, it is a Court within the contemplation of section