P L D 1975 Karachi 909 (PLP)

(2) It 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." The learned Advocate‑General relied upon subsection (2). But section 5 of the Code, which is also relevant, reads as follows "5.‑(1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (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 of place of investigating, inquiring into, trying or otherwise dealing with such offences." As a case has been registered against the applicant, the learned Advocate General conceded that section 5 was attracted ; therefore I cannot accept his submission that the provisions of the Code are applicable to D. P. R. proceedings only to the extent to which it is so stated in D. P. R. On the contrary, on the plain language of section 5(2) of the Code, its provisions are applicable to D. P. R. proceedings, but subject to any provisions to the contrary in the D. P. R.

4. The learned Advocate. General then submitted that the D. P. R. contained provisions to the contrary within the meaning of section 5(2) of the Code, and, in this connection, he pointed out that the D. P. R. Rules had been framed by the Government in the exercise of its powers under section 3 of the Defence of Pakistan Ordinance, 1971. The submission is correct, and I also agree with the further submission that the rule making power thus conferred on the Central Government is wide.

5. I now turn to rule 210 of the D. P. R. which reads : "

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 shall, 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." The rule may be contrasted with the provisions of the Code. Thus, as pointed out by the Darned Advocate‑General, sections 426 and 439 confer jurisdiction on the Courts, to grant bail pending the hearing of an appeal and a revision respectively, whilst sections 496 and 497 deal with the Court's power to grant bail when an accused is arrested and brought before it. Then comes section 498, under which this Court and the other superior Courts of the country have granted anticipatory bail. Whilst the provisions for bail in the Code are to be found in different chapters of the Code, as the provisions for bail in the D. P_. R. Rules were contained only in rule 210, the submission was that the rule was intended to be comprehensive ; therefore, as it did not contain any power for granting anticipatory bail, it must be deemed to have excluded that power. And, on this interpretation of the rule, no doubt, the rule is inconsistent with section 498 of the Code and would impliedly exclude this section. But, is the rule intended to be exhaustive of all the types of cases in which bail can be granted under the D. R R. 7 The fact, that the provision for bail is contained in a single rule, no doubt lends some support to the Advocate‑General's contention.' But on the other hand, the Legislature is presumed to be aware of the law and of the decisions of superior Courts. And, even the learned Advocate -General was compelled to admit that the Supreme Court and the High Courts have always granted anticipatory bail in an appropriate case. Therefore, in my humble opinion, if the intention of the rule‑maker had been to take away the power of granting bail before arrest, it would have made express provision in this respect, and I am entitled to take this view, because the D. P. R. Rules are a form of delegated legislation which should be construe strictly. However, even if I am wrong, it cannot possibly be said that the construction sought to be placed on the rule by the Advocate‑General is free from doubt. Putting the case of the State at its highest, there is an ambiguity in the rule, which must be construed in accordance with the settled principles for the construction of the statute. One of these principles "' is that there is a presumption in favour of the jurisdiction of the superior Courts, which is presumed not to be taken away lightly. Secondly, our laws lean very strongly in favour of the liberty of the subject. Therefore, in my humble opinion, the ambiguity in rule 216 must be construed in favour of the liberty of the subject and the jurisdiction of this Court, and I would hold that the rule has not taken away this Court's power to grant anticipatory bail. That is why a succession of Judges have granted bail before arrest after examining the rule. It is true that the precise argument advanced before me has not been considered in any of the many cases, reported and unreported, which were placed before me. But the point is obvious, and, in my humble opinion, it would not be proper for a single Judge of this Court to depart from a practice almost unanimously followed by the Judges of this Court over a long series of years.

6. The learned Advocate‑General then attempted to support his submis sion by reference to three judgments reported in H. N. Nolan and another v. The Emperor (A I R 1944 All. 118), In re: Surajilal Harilal (1942 B L R 72) and In re: Y. Bruvaraha Iyenger (A I R 1942 Mad. 221). All these judgments relate to rule 130‑A of the Defence of India Act, which is in part materia with rule 210 of the D. P. R. But the only point in the Madras case was of the vires of rule ;1430‑A of the Defence of India Act, and, as there was no question of deciding claim for an anticipatory bail, the judgment is totally irrelevant to the point in the application before me. The Allahabad case is also irrelevant for the same reason. However, in the Bombay case, the learned Judges 'held that rule 130‑A was valid, and the Advocate‑General relied upon the further finding of the learned Judges that this rule must be deemed to have repealed section 496 of the Code. This judgment too is irrelevant, because the implied repeal of section 496, whether by rule 130‑A of the Defence of India Rules, or by rule 210 of the D. P. R., cannot amount to the implied repeal of section 498.

7. However, according to the learned Advocate‑General, the implied repeal of sections 496 and 497 by rule 210 of the D. P. R. necessarily amounted to the implied repeal of section 498, ‑because section 498 was merely ancillary or subsidiary to sections 496 and

497. To say the least, the submission has only the merit of novelty, because sections 496 and 497, even according to the Advocate‑General, do not confer any power on the Courts of granting bail before arrest. But, according to the learned Advocate- General, S. A. Rahman, J. (as he then was) had held in Muhammad Ayub v. Muhammad Yaqub (PLD 1960 SC 1003), that section 498 was merely ancillary or subsidiary to the two preceding sections of the Code. This was really the sheet‑anchor of the learned Advocate‑General's case, and, as far as I can see, he sought to challenge the long established view of the Courts on the basis of the peculiar construction placed by him on the observations of S. A. Rahman, J., in Muhammad Ayub's case.

8. It is true that his Lordship observed at page 1014 of the judgment that "section 498 of the Code seems to me to be ancillary or subsidiary to sections 496 and 497 of the Code in the words of the Privy Council". But the facts of the case were that the respondent had obtained bail from the High Court during the pendency of his trial in the Sessions Court ; therefore the observations had reference to the construction sought to be placed on section 498 by the respondent, and, in my humble opinion, to apply the observations quoted to the question of bail before arrest would be to misconstrue them totally. As, however, the question is of very great importance. I would set out here the relevant passage in its entirety. After referring to the various provisions for bail in the Code, his Lordship observed at page 1014 : "The better view seems to me to be, that the policy of the law, in respect of bail to persons, accused of non‑bailable offences, is laid down in section 497 and the same policy should be kept in view, while considering the question of bail under section 498, Criminal Procedure Code. After all, judicial discretion has to be exercised, while granting bail and the power conferred by section 498 of the Code cannot be construed to be purely. arbitrary. In this respect, therefore, section 498 of the Code seems to me to be "ancillary subsidiary" to sections 496 and 497 of the Code, in the words of the Privy Council. In other respects, however, section 498 occupies the position of a supplementary provision in so far as it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and the police and enables these Courts to exercise the power of anticipatory bail, in suitable cases." The submission of the Advocate‑General is contrary to the express observations in the second part of the passage, which I have quoted, and, as his Lordship expressly pointed out that the power of bail before arrest was "a supplementary provision", it follows that the repeal by any statute of sections 496 and 497 would not, by itself, amount to a repeal by implication of the supplementary provision thus contained in section 498 Accordingly, the practice of this Court in granting anticipatory bail in D. P. R. cases is based on a proper appreciation of the law ; so the only question is, whether the applicant has made out, at this stage, a fit case for bail before arrest.

9. The question has to be decided by reference to the statements attributed to the applicant in the First Information Report, and he is alleged to have criticised in strong terms certain action taken by the Government and to have called for action against the Government. On the basis of a judgment of a Division Bench of this Court reported in Azad Papers Ltd. and others v. The Province of Sind (P L D 1974 Kar. 81), and the judgment in Maulana Jan Muhammad Abbasi‑'s case, Mr. Haq Nawaz Raja submitted that the applicant was entitled to bail. The learned Advocate‑General, on the other hand, submitted that the question was not merely of what was said by the applicant, but of the manner and the circumstances in which he had said it. But that will depend on the evidence, which. is yet to be recorded, and whatever be the position after evidence is recorded, at this stage, and for the purpose of this application only, in my humble opinion, the applicant's plea for anticipatory bail is supported by the two judgments relied upon by his learned counsel. I would, however, clarify that my observations are of tentative nature, and, with this observation, I confirm the interim bail granted to the applicant by my Lord the Chief Justice. S. A. H. Bail confirmed.