P L D 1976 Karachi 869 (PLP)

ABDUL KADIR SHEIKH, J.-The petitioner Muhammad Yasin is facing, trial in a case involving offences punishable under rules 12, 13, 42, 43 and 49, of the Defence of Pakistan Rules, read with section 124-A, P. P. C. before the Special Tribunal constituted under the provisions of Defence of Pakistan Ordinance, 1971. His application for grant of bail till the conclusion of the trial was rejected by the Special Tribunal. He has now sought the same relief from this Court through this application under section 498, Cr. P. C. The case has come up before us on reference to Division Bench made by the Chief Justice under the order dated 17th April 1974 to resolve the conflict of opinions between the Single Judges of this Court as to the competency of An application for bail under section

498. Cr. P. C. from the accused person facing trial before the Special Tribunal constituted under the provisions of the Defence of Pakistan Ordinance, 1971. In Ilahi Bakhsh Soomro v. State (P L D 1973 Kar. 674) one of us (Mr. Justice Mir Khuda. Bakch Marri) after extensively dealing with the provisions of the Defence of Pakistan Ordinance, the Rules framed thereunder and the relevant provisions of the Code of Criminal Procedure, with reference to the case-law on the subject, held that once a case has been referred to a Special Tribunal set up under the Defence of Pakistan Ordinance, 1971, the powers vested in the High Court under section 498, Cr. P. C. cannot be exercised; provided, however, the Tribunal is properly constituted and it exercises powers vested in ft by law. For this view, his Lordship relied upon the decisions of the Madras and the Patna High Courts on the analogous provisions of the Defence of India Act, 1939 and the Rules framed thereunder, and also a Full Bench decision of the former High Court of West Pakistan, reported as State v. Habib Jalib (P L D 1967 Lah. 1297). In Muhammad Ismail v. State (P L D 1974 Kar. 29) our learned brother Abdul Hayee Kureshi, J. took the same view after making extensive reference to the provisions of Defence of Pakistan Ordinance, 1971, the Rules framed there under and the case-law on the subject. His Lordship observed that the creation of a Special Tribunal is incomplete derogation of the machinery of the Ordinary Courts provided by the Code of Criminal Procedure, for, the Special Tribunal is invested, by virtue of powers granted by a separate piece of Legislative Measure, with its own procedure, and even the Rules laid down, independent norms and the principles governing grant of bail. In this regard, his Lordship pointed out that rule 210 clearly excludes application under section 498 of Code of Criminal Procedure. His Lordship rejected the argument advanced by the learned counsel for the petitioner before him that the ouster of jurisdiction of the ordinary Courts, specially the High Court, unless expressly barred, is not to be lightly inferred, for, in his Lordship's view the scheme of Defence of Pakistan Ordinance, 1971 and the Rules framed thereunder, particularly the specific language of section 13 of the Ordinance is clearly to the effect that "no Court shall have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal." His Lordship also took notice of the order passed by our learned brother, Agha Ali Hyder, J. in Sardar Ali Shah v. State (Criminal Bail Application No. 347 of 1973). By that order Agha Ali Hyder, J., granted bail to the petitioner before him who was facing trial in a case pending before the Special Tribunal. In regard to this case the observations made by Abdul Hayee Kureshi, J., may be stated in his own words as follows "The learned Advocate has also placed before me an order of my learned brother Agha Ali Hyder, J., in Criminal Bail Applica tion No. 347 of 1973. My learned brother had granted bail although the judgment of Marri, 1., was brought to his notice. My learned brother was of the view that since the Supreme Court had granted leave and also admitted the petitioner to bail, the judgment of Marri, J. could not, or in any case, may not be followed. I do state that the judgment of Marri, J., is not binding on me but on consideration of two different judgments passed by my two learned brothers I can act within the scope of preferring one judgment to the other. For the reasons given in the judgment of Marri, J., and the views I have formulated, I prefer to follow that judgment. Moreso as the order of Agha Ali Hyder, J., makes no specific reference to the words contained in the last clause of section 13 of the Ordinance." In my view there is a sizable amount of case-law of the superior Courts-of this country in this regard. While the case of Habib Jalib was directly in connection with the Defence of Pakistan Ordinance and Rules, other cases arose in proceedings either under the Frontier Crimes Regulations or the West Pakistan Criminal Law Amendment Act, 1963. In both these later enactments the law contemplates the establishment of Special Tribunals, following their own procedure. Even in such cases the Special Laws are designed to oust the jurisdiction of the ordinary Courts and confer the same on Special Tribunals. In all these cases the test laid down is whether as a consequence of the reference the case was taken outside the ordinary judicial field. The ratio is that once a case is competently 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 the Court of general jurisdiction with the said case ceases; in such cases the Special Court or Special Tribunal is no longer under the control or super vision of the Court of general jurisdiction by virtue of powers under the Code of Criminal Procedure. In the case of Muhammad v. The State (P L D 1963 S C 373) Cornelius, C. J. expressed as follows : "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 only decision which is said to be contrary to the view expressed by the learned Single Judges in cases of Ilahi Bakhsh Soomro and Muhammad Ismail is the one given by our learned brother Agha Ali Hyder, J., in Sardar All Shah v. State. Perusal of that judgment clearly shows that his Lordship reached on contrary conclusion to the one that prevailed with the learned Single Judges in the two cases referred to above. Indeed, his Lordship was pursuaded not to follow the decision in the case of Illahi Bakhsh Soomro for the reason that it was sub judice before the Supreme Court on appeal, and the Supreme Court had granted bail to certain persons whose cases were said to be not distinguishable from the one before his Lordship. Whether these reasons are valid or not, is not the question for consideration before us. The glaring fact that is relevant for our purposes is that Agha Ali Hyder, J., rendered no contrary decision. Since there is no conflict of opinions between the Single Judges of this Court, and indeed three Judges of this Court (Mr. Justice Dorab Patel, 1., in a later case), each in a separate case, have independently held that an application for bail under section 498, Cr. P. C. by an accused who is facing trial before a Special Tribunal constituted under the Defence of Pakistan Ordinance, 1971 is not competent in law. I would rather follow these decisions of this Court, until the law on the subject is laid down by their Lordships of the Supreme Court and the pronouncement is expected in the judgment on the appeal pending before their Lordships in the case of Illahi Bakhsh Soomro v. State decided by this Court. On the view taken above, this application is incompetent in law, and is accordingly dismissed. MIR KHUDA BAKHSH MARRI, J.-I agree. S. Q. Application dismissed.