P L D 1988 Karachi 92 (PLP)

MAMOON KAZI, J.‑‑This bail application under section 498 of the Code of Criminal Procedure, read with Article 199 of the Constitution of Pakistan has arisen out of constitutional petition No. D‑888 of 1987 which has been filed by petitioner Abdul Jabbar to impugn the detention of his son, Abdul Samad Dadabhoy, who has been detained under an order passed by the respondent No.1, dated 7th September, 1987, under section 3 (1) of the Sind Maintenance of Public Order Ordinance, 1960. The petitioner requests that his son be released on interim, bail pending final disposal of the main petition. Mr. Khalid Ishaque learned counsel for the petitioner, although has not pressed into service the provisions of Section 498, Cr.P.C. but has argued that this Court is competent to grant bail to the detenu pending final disposal of the petition by virtue of the same power under which this Court passes interim orders in the exercise of its constitutional jurisdiction. This plea of the learned counsel has been vehemently opposed by the learned Advocate‑ General, according to whom this extra ordinary power of releasing the detenu on bail by way of interim relief does not vest in the Court. We have heard the learned counsel on the question and now propose to determine the same.

2. Mr. Khalid Ishaque has argued, that inherent in the Courts' power to grant the main relief, is the power to grant an interim relief. Therefore, according to him, as this Court has power to ultimately release the detenu, it can also enlarge him on bail pending final disposal of the main petition. Reliance in this respect has been placed on Mirza Jawad Beq v. The State (P.L.D. 1975 Kar 628), Commissioner, Khairpur Divison v. Ali Sher Sarki (P.L.D. 1971 S.C. 342) and Sind Employees' Social Security Institution v. Adamjee Cotton Mills Ltd. (P.L.D. 1975 S.C. 32).

3. In the first case referred to by Mr. Khalid Ishaque, the contention before the High Court was that section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 had expressly taken away its powers to suspend the sentence of the appellant before it or release him on bail pending final disposal of his appeal. It was held, that even if the powers of the Division Bench of the High Court under section 426 of the Code of Criminal Procedure was considers to have been curtailed by section 7 of the aforesaid Act, the same as appellate authority still has power in a fit case, to grant interlocutory relief. In the case of Ali Sher Sarki, the argument was that under the provisions of the West Pakistan Control of Goondas Ordinance (XXXV of 1959), the appellate authority had not been expressly empowered to release a person on bail pending his appeal, but the same was repelled by the Supreme Court and it was held that power to suspend the operation of an order ‑passed by a tribunal under the provision of the Ordinance was ancillary to the power conferred upon the Commissioner under section 18 of the Ordinance to discharge a person complained against on final adjudication. Similar question again arose before the Supreme Court in the case of Sind Employees' Social Security Institution as the question was, whether under section 59 of the West Pakistan Employees' Social Security Ordinance (X of 1965), the appellate Court had power to stay execution of an order under appeal, pending final disposal of the appeal. The question was once against decided in the affirmative.

4. So far as the principle Laid down in the above case is concerned, there can hardly be any cavil with the same, but the cases still fail to provide any answer to the question in hand. A question can hardly be raised as to the power of this Court to provide interim relief in appropriate cases under Article 199 of the Constitution as such power automatically flows from this Court's power to grant the main relief under the aforesaid Article. However, the question is not whether this Court can grant interim relief, pending final disposal of a constitution petition, but whether the power to grant an interim relief can be exercised in a case of detention. Only one judgment, which incidentally was also given by this Court, has been quoted before us by the counsel and the same has beer. reported as Zafar lqbal v. The Province of Sind (P.L.D. 1973 Kar. 383). In this case, the same question was considered by two learned Judges of this Court and was answered in the affirmative. However, the power to release a detenu on interim bail was held to be subject to limitations. Both the learned counsel have sought support from this judgment, although it was Article 201 of the Interim Constitution 1972 which came under examination in the case. Nevertheless, according to Mr. Khalid Ishaque the language used in Article 199 of the present ,Constitution is not materially different from that used in Article 201 of the Interim Constitution. However, according to the learned Advocate General, the case of Zatar Iqbal cannot serve as a precedent as the power to granting interim relief has now been curtailed by clause (4) of Article 199 of the present Constitution. 1

5. In may be pointed out that the relief claimed lit the present petition falls within the ambit of paragraph (b) of Article 199 (1) of the present Constitution which corresponds to the same paragraph of Article 201 of the Interim Constitution. However, as far as clause (4) of Article 199 of the present Constitution is concerned, it imposes certain restrictions on the powers of the High Court to grant an interim relief to a petitioner in certain cases enumerated therein as either such power is not to be exercised at all or it cannot be exercised without hearing the concerned law officer first. After comparison of Article 199 of the present Constitution and Article 201 of the Interim Constitution, we find that the only variation that can be found in Article 199 of the present Constitution, is contained in paragraph (ii) of clause (4) of the Article, according to which, an interim order is not to be passed unless the Court is satisfied that such order‑" (ii) would have the effect of suspending an order or ,proceeding which on the face of the record is without jurisdiction". So far as the argument of the learned Advocate‑ General is concerned, we are not inclined to agree with the same as paragraph (a) of clause (4) of this Article only refers to applications which have been filed under paragraphs (a) or (c) of clause (1) of Article 199 and admittedly ,the relief sought by the petitioner falls within the ambit of paragraph (b) of Article 199 (1). It may further be pointed out that clause (4) of Article 199 does not vest the High Court with any power but the same only imposes restrictions on the same. Since the restrictions imposed by paragraph (4) do not relate to the powers of this Court vesting under paragraph (b) of Article 199 (1), we are unable to agree with the proposition advanced by the learned Advocate General.

6. Turning to the case of Zafar lqbal although the Division Bench clearly repelled the argument advanced on behalf of the detenu that Sections 496 497 or 498 of the Code of Criminal Procedure could be invoked for seeking interim relief in the detention cases, but it was held that the power to grant interim relief by temporary release of the detenu was available to the High Court under the Interim Constitution, under which the proceedings of the case were then governed. It will be worthwhile to quote a passage from the aforesaid judgment which is as under:‑

17. This does not, however, conclude the matter. We have, in a different context earlier, enunciated the principle that where a Court has power to pass an order finally it will generally have the power to do so by way of interim measure unless such a power is either expressly or by necessary implication excluded. Since there is power eventually under Article 201 of the Interim Constitution to set the detenus at liberty if we find that their confinement is unlawful, we think that we would have power to giant them an interim order to the same effect upon such conditions as may be thought proper in a given case. The learned Advocate‑ General, however, invites our attention to sub‑Article (4) of Article 201 which requires that in certain circumstances the Court would not make an interim order where the application before it is for an order under clauses (a) and (c) of sub‑Article (2) of the Article. He argues that this means that under these two clauses an interim order can be made but since clause (b) is not mentioned no interim order can be made in the course of an application made under clause (b). Now it is clause (b) which authorises the High Court to enquire into the legality of the detention of a person held in custody. We regret we find it impossible to agree with the learned Advocate‑General. Sub‑Article (4) in form and in substance confers no power whatever upon the High Court; on the contrary it provides for a restraint on the power, i.e. it requires notice to be given to a prescribed authority before an interim order can be made. No part of the Article expressly gives the power to pass an interim order; sub‑Article (4) on the contrary assumes that such a power exists and imposes a certain degree of restraint on that power in a certain class of cases. As we have already stated the power of granting an interim order is implied unless expressly excluded‑,' so tar as Article 201 is concerned such power is not only not excluded by implication assumed to exist. If authority was needed for this proposition it may clearly be found in the case of Ebadur Rahman v. The Collector of Customs (P.L D. 1966 S.C. 762), the last paragraph of the judgment which is, in the following language: ,In a proceeding of this extraordinary nature where the High Court exercises power to stay operation of any impugned order or notification, it must exercise that power with great care so that a person may not manage to obtain a direct benefit from the case in contravention of law.' Clearly their Lordships are holding in favour of the existence of such a power though they say it ought to be used with great care." The conclusion of the Division Bench was then expressed in the following words: ‑ 21 .We have, therefore, come to the conclusion that it is open to us to grant an interim order suspending the operation of the order of detention upon such conditions as may seem reasonable including the furnishing of a surety and) or security. We realise, of course that it is a matter Of practical to consequence, specially from the point of view of the detenu,' this would mean much the same thing as the grant of bail. Certainly the detenu would have been released pending the disposal of t e petition under Article

201. Nevertheless, the word 'bail' is not used in Article 201 and is used in certain provision of the Criminal Procedure Code; the expression has certain technical connotations and we only decide that we have the power to make an interim order and not a power to grant bail. "

7. We, consequently, find ourselves in respectful agreement with, the view expressed by the Division Bench in Zafar lqballs case and hold that this Court is vested with power to order .interim release of a detenu, pending final disposal of his main petition. Such power does not flow from sections 496, 497 or 469 of the Code of Criminal 'Procedure, but from Article 199 of the Constitution itself.

8. However, the matter does not conclude here, as the next question which needs to be examined is under what circumstances it would be appropriate to exercise such a power. In this respect it. is pertinent to point out that when bail is granted to an accused during the pendency of an appeal after his conviction, the Court merely suspends the sentence during the pendency of such appeal and if his appeal is dismissed the accused would still serve out his sentence. Such cannot be the case in a detention matter. The object behind passing of a detention order is not to penalise the detenu but to place restrictions on his movements as his being at large may be detrimental to the maintenance of public order or safety. Now the order of detention is passed for a limited period and if the order of detention is suspended, the period for which the detenu detention was ordered might have already expired. Therefore, the grant of interim relief to a detenu might defeat the very object for which his detention was ordered by the detaining authority. We, are, therefore, clearly of the view that an order for interim release of a detenu cannot be passed in an unrestricted manner. Such power is to be exercised with great circumspection and caution, depending upon the circumstances of each given case. It may be pointed out that such question was also considered by the Division Bench in the case on Zafar lqbal and it was observed as under:‑ "We think that it must be only in the rarest cases that a Court would be justified in suspending the order of detention. While we think it neither desirable nor possible to enumerate what circumstances in a given case would justify this rare exercise of power, one kind of case, we think stands out. In that kind of case where, clearly and on the face of it, the detention is unlawful and the authority purporting to detain the detenu cannot justify it, we think the order should be suspended. Such a case may arise, for example, where a person is held without a warrant altogether It may also arise where there is a warrant which purports to be under a proper law but is nevertheless, clearly without authority as having been passed by‑a person who does not have the requisite authority. Again, it might arise where ever though all these conditions have been satisfied the ground upon which it is made clearly are not relevant to the purposes of the statute under which it purports to be made. We are, as we have said already, not attempting an exhaustive list by any means but merely point out two or three different kinds of cases which occur to us at the present time as justifying an order of suspension." The learned Advocate‑ General has also invited our attention to two cases from the Indian jurisdiction, the first being the case of State of Bihar v. Rambalak Singh (A.I.R. 1966 S.C. 1441). In this case it was held by the Supreme Court of India as under:‑ "Having thus rejected the main argument urged by the learned Advocate‑ General, we must hasten to emphasise the fact that though we have no hesitation in affirming the jurisdiction of the High Court it, granting interim relief by way of bail to a detenu who has been detained under R.30 of the Rules, there are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circumscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu. There is no doubt that the facts on which the subjective satisfaction of the detaining authority is based, are not justiciable, and so, it is not open to the High Court to enquire whether the impugned order of detention is justified on facts or not. The jurisdiction of the High Court to grant relief to the detenu in such proceedings is very narrow and very limited. That being so, if the High Court takes the view that prima facie, the allegations made in the writ petition disclose a serious defect in the order of detention which would justify the release of the detenu, the wiser and the more sensible and reasonable course to adopt would invariably be to ,expedite the hearing of the writ petition and deal with the merits without any delay. Take the case where mala fides are alleged in respect of 'an order of detention. It is difficult, if not impossible, for the Court to come to any conclusion, even prima facie, about the mala fides alleged, unless a return is filed by the State. Just as it is not unlikely that the High Court may come across cases where orders of detention are passed mala fide, it is also not unlikely that allegations of mala fides are made. Light ‑heartedly or without justification; and so, judicial approach necessarily postulates that no conclusion can be reached, even prima facie, at to mala fides unless the State is given a chance to file its return and state its case in respect of the said allegations; and this emphasises the fact that even in regard to a challenge to the validity of an order of detention on the ground that it is passed mala fide, it would not be safe, sound or reasonable to make an interim order on the prima facie provisional conclusion that there may be some substance in the allegations of mala fides. What is true about mala fides is equally true about other infirmities on which an order of detention may be challenged by the detenu. That is why the limitation on the jurisdiction of the Court to grant relief to the detenus who have been detained under R.30 of the Rules inevitably introduces a corresponding limitation on the power of the Court to grant interim bail. '(11) In dealing with writ petitions of this character, the Court has naturally to bear in mind the object which is intended to be served by the orders of detention. It is no doubt true that a detenu is detained without a trial and so, the Courts would inevitably be anxious to protect the individual liberty of the citizen on grounds which are justiciable and within the limits of their jurisdiction. But in upholding the claim for individual liberty within the limits permitted by law, it would be unwise to ignore the object which the orders of detention are intended to serve. An unwise decision granting bail to a party may lead to consequences which are prejudicial to the interests of 18111 the community at large; and that is a factor which must be duly weighed by the High Court before it decides to grant bail to a detenu in such proceedings. 11 The same view was once again followed by the Supreme Court of India in the case of the State of U.P. v. Jairam etc. A I R 1982 S C 942.

9. Consequently we are of the opinion that interim order of release of a detenu can be passed only in such cases where the order of detention appears to the Court to be per se illegal or without jurisdiction; but in cases where the illegality of the detention order is yet to be determined after going into the merits of the grounds of detention, the Court should always refrain from passing an interim order of release of a detenu. In such cases, not only the very object of detention of a person can be defeated but the same can also lead to absurd results as we have already pointed out.

10. In the present case, we do not find that the detention order suffers from such an infirmity as would bring it within the ambit of cases to which we have referred as citations. The grounds of detention which have been appended to the petition as annexures 'E', prima facie indicate that the detenu has been detained on account of certain activities which have been found to be detrimental to the maintenance of public order and safety. The merits of the case are to be finally determined by this Court after hearing the main petition. The passing of the interim order as prayed by the detenu, therefore, is not called for in the present cases. The petition will come up for final hearing expeditiously and if the Court is satisfied that the detention is illegal, the detenu can be granted the final relief prayed for in the petition. 11 For the aforesaid reasons we are not inclined to release the detenu on bail. This application is, therefore, dismissed. M.Y.H/A‑232/K Petition dismissed