1968 P Cr (PLP)

Mian Nazir Akhtar for Petitioner. Raja Said Akbar, Advocate‑General with R. H. Shamsi and Kh. Saeed‑ul‑Hasan for the State. SARDAR MUHAMMAD IQBAL, J.‑Muhammad Khan, petitioner, is being proceeded against under the West Pakistan Control of Goondas Ordinance (XXXV of 1959). He has presented this ap plication under section 498 of the Code of Criminal Procedure with the prayer that he should be admitted to bail. Learned counsel appearing on behalf of the petitioner placed reliance or: Muhammad Aslam v. State (P L D 1967 Lah. 810), where it was observed by Shaukat Ali, J. "(4) Section 498, Cr. P. Code which applies to Courts of Sessions and the High Court is more general to its scope and empowers such Court `in any case' `where there be an appeal on conviction or not' to direct that any person be admitted to bail. The words `in any case' are very comprehensive and would certainly cover a case where the proceedings in the nature of prevention of offences are contemplated. The Legislature has obviously intended to confer upon this Court and a Court of Sessions very wide powers to admit to bail a person who is lodged in jail as an accused or otherwise. (5) To my mind the provisions of section 8 of the Ordinance does not affect the jurisdiction of the High Court under section 498 of the Code. As observed already, the power of the High Court under section 498, Cr. P. Code cannot be taken away by. implication. Furthermore, section 498 is not referred to in section 8 or in any other provisions of the Ordinance and prima facie the provisions of the former are left in tact. In the circumstances, I hold that it is open to this Court to exercise power under section 498 of the Code."

2. Learned Advocate‑General, however, relied on Allauddin v. State (1968 P Cr L J 92) where, a quite contrary view was expressed by H. T. Raymond, J. The relevant observation in the report are in the following terms:‑ "I would begin by emphasising the fact‑ that the present applicants who are now facing proceedings under section 6 of the Karachi Control of Disorderly Persons Act, 1952 are not accused persons and that they are not being charged with the commission of any offence as such, The present proceedings against them are in the nature of a `preventive action' the underlying object of which is to ensure that these applicants, will not commit any offence or offences: and not to punish them for having committed any offence. Therefore, these applicants not being accused persons charged with the commis sion of any offence cannot lay claim to the provisions of section 496, 497 or 498 of the Code of Criminal Procedure or apply for bail under any of these three sections. It would follow then that these three sections 496, 497 and 498 are entirely outside the purview of the Karachi Control of Disorderly Persons Act, 1952 and that therefore proceedings tinder this Act are not controlled by any one of these three sections."

3. The West Pakistan Control of Goondas Ordinance, 1959, being a special and local law, and specific provisions for the bond and the detention being contained in sections 6 and 8, the application of the Code of Criminal Procedure is excluded by virtue of subsection (2) of section 4, Cr. P. C. Section 20 of the Ordinance further provides "The provisions of this Ordinance, and any order made or action taken under this Ordinance, shall have effect notwithstanding anything inconsistent therewith contained in any enactment, other than this Ordinance, for the time being in force, and in any instrument having effect by virtue of any such enactment other than this Ordinance". In Sher Ali Khan v. State (P L D 1963 Lah. 281), it was observed by Jamil Hussain Rizvi, J. "The Deputy Commissioner is competent to grant or refuse bail to the petitioners in exercise of the powers under section 20 of the F. C. R. His order is revisable by the Commissioner. In those circumstances, I consider that the High Court will have no powers to grant bail to an accused person if the case has been referred to the Council‑of‑Elders by the District Magistrate".

4. We are in respectful agreement with the view expressed, by Rizvi, J., in She) Ali Khan's case and Raymond, J., in Allauddin's case, referred to above. We are fortified in our view by the decision of the Full Bench in State v. Habib Jalib (P L D 1967 Lah. 1297) where it was observed:‑ "Mr. Mahmood Ali Kasuri feebly contended that what was barred was trial by the ordinary Courts in such a case and not the determination of bail application. We do not agree. Once it is held that the jurisdiction vested exclusively in the Special Tribunal it must necessarily follow that no other Court could deal with the matter including the bail application. .we hold that the learned Additional Sessions Judge was not 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. Accordingly, we set it aside. The bail allowed to the respondent is hereby cancelled."

5. On the above view of the matter, we hold that an application under section 498 of the Code of Criminal Procedure for bail under the West Pakistan Control of Goondas Ordinance, B 1959, is not competent. Hence dismissed. Petition dismissed.