1968 P Cr (PLP)

3. 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 commission 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 under this Act are not controlled by any one of these three sections.

4. A second reason that fortifies me in the view expressed in the above paragraph is a perusal of the provisions of sections 21 and 22 of the K. C. D. P. Act, 1952. It would be advisable to reproduce these two sections below: "

21. No proceedings taken or orders passed under. this Act, shall be called in question otherwise than as provided hereunder and no civil or criminal proceedings shall be instituted against any person for anything done or intended or purporting to be done under this Act, or against any person for any loss or damage caused to, or in respect of any property, as a result of an act done or purporting to be done under this Act.

22. The provisions of this Act, and any order made or action taken under this Act, shall hove effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, for the time being in force, and in any instrument having effect by virtue of any such enactment other than this Act." It seems to me that the provisions of these two sections serve to hold aloft proceedings under this Act and to render them immune from and unaffected by any provisions to the contrary appearing in any other Act. To my mind, the effect of these two sections is to place this Act over and above even the Code of Criminal Procedure in cases where there should be any inconsistency between the provisions of the Code of Criminal Procedure and the provisions of this Act. The learned A. A.‑G. has pointed out that the K. C. D. P. Act is an Act of the Central Legislature and that it came into effect on 28‑4‑52 at a time when the Federal Capital of Karachi was centrally administered. Under Article 225 of our present Constitution it is Existing Law and, therefore, any statutory bar appearing in any law of the Central Legislature barring the jurisdiction of the High Court must necessarily be given effect to. In support of this submission the learned A. A.‑G. invited my attention to the case of Muhammad Khan v. The Border Allotment Committee an another (P L D 1965 S C 623) and, in particular, to a passage at page 629 which is in these words: "The question then is as to whether the order of the Border Allotment Committee itself can be challenged now? The Border Area Regulation, as already pointed out, is a Regulation which has been preserved by clause (4) of Article 225 of the Constitution and it now enjoys the status of an Act of the Central Legislature. Now an Act of the Central Legislature can take away the jurisdiction of the High Court and even of this Court by reason of the provisions of Article 130 of the Constitution, which clearly provides that no Court shall have any jurisdiction that is not conferred upon it by the Constitution or by or under the law. Thus since the Border Area Regulation now has the effect of an Act of the Central Legislature, it is a valid piece of legislation by a competent Legislature and if it has taken away the jurisdiction of the High Court and this Court to call in question any order made or direction issued under the said Regulation, that protection must prevail and the order of the 25th of August 1960, will not be open to challenge even now. In this view of the matter we would dismiss this appeal, not because of the provisions of paragraph 7 of President's Order No. 26 but because in our view, the Border Area Regulation is a valid subsisting law which competently takes away the jurisdiction of the High Court and this Court not only to call in question the validity of any order made or direction issued thereunder but also of any provision of the said Regulation."

5. Now, reverting again to the provisions of the K. C. D. P. Act, it is necessary to point out that the only section in this Act empowering a Tribunal to take a bond from a person complained against for his appearance during the enquiry is section 8 (1). But, section 8 (2) provides that‑ "The Tribunal may for reasons to be recorded instead of taking a bond for the appearance of a person complained of order his detention in such custody as may be prescribed by the Provincial Government by general or special order till the conclusion of the enquiry by it." Thus, the release of a person on bail during the hearing of the proceedings against him under this Act is a matter left to the sole discretion of the Tribunal itself and there is no other provision in this Act whereby the discretion so exercised by the Tribunal may be revised or reviewed by any appellate authority. In this respect, this K. C. D. P. Act, 1952 differs from the West Pakistan Control of Goondas Ordinance, 1959 (Ordinance XXXV of 1959). Section 8 of this latter Ordinance contains a proviso providing that detention under section 8 (2) shall not exceed two months unless the case has been referred to the Commissioner and the latter has agreed to such detention This Ordinance XXXV of 1959 also contains section 18 which provides for an appeal from an order made by a Tribunal under section 8 to the Commissioner of the Division in which the Tribunal exercises its jurisdiction. In the case of the K. C. D. P. Act, 1952, however, there is no such provision for appeal and, therefore, the exercise of the discretion by the Tribunal under section 8 is final and cannot be called in question in any Court. Now, no doubt, this is very harsh. It is well established that every man should have at least one right of appeal but in the case of the K. C. D. P. Act, 1952 there is no appeal against an order under section

8. Admittedly, this is a great and a serious hardship: but, as pointed out by the learned A. A.‑G., the remedy lies not with this Court but with the Legislature. This Court has merely to interpret the law as it stands and is not concerned with the moral aspects of the status that it is called upon to interpret. It was faintly suggested by the learned State counsel in the course of his submissions that as the city of Karachi is an international port where disorderly persons are perhaps more abundant and more dangerous than in any other city in the interior, the law in its wisdom has refrained from providing any appellate remedy as against the discretion exercised by the Tribunal under section 8 of the Act.

6. And, yet, it is not as though the K. C. D. P. Act, 1952 contains no provision for revision. Section 16 provides for a revision of the order of the Tribunal by the High Court but only in relation to orders under section 4, 12 or 15 but not an order under section

8. Section 4 deals with contempt proceedings and provides that the Tribunal shall have the power of a Court of Record for punishing contempt of its authority. Section 12 deals with the various declarations a Tribunal can make concerning disorderly or dangerously disorderly persons. Section 15 deals with the bond that a Tribunal may order a person to furnish, the terms of such bond and the consequences in respect of its forfeiture. But, there is no provision empowering the High Court to revise an order made by the Tribunal under section

8. I am almost certain that it is on account of this omission of section 8 from the provisions of section 16 that the advocate: in the present four cases have applied for bail under section 498, Cr. P. C. and have not thought of coming in revision under section 16 of the K. C. D. P. Art.

7. In the course of the arguments addressed to me by the learned Advocates appearing on behalf of the applicants m; attention was invited to a recent order of my learned brother Shaukat Ali, J. of the Lahore Bench dated 8‑3‑67 in Cr. Misc Appln. No. 447 of 1965. This was an application for bat before arrest under section 498, Cr. P. C. on behalf of Muhammad Aslam a businessman of Lyallpur against whom non‑bailable warrants under section 6 of the West Pakistan Control of Goondas Ordinance, 1959 had been issued. 1n this judgment his Lordship after beginning with the observation that‑ "persons brought before the Tribunal are not accused who are charged with any offence and, therefore, cannot be said to be accused persons," has yet gone on to hold that in the Ordinance as it stands there :a no express exclusion of the exercise of power under section 498, Cr. P. C. by the High Court and hence has granted bail to the applicant in that matter. I have very carefully studied this order of Shaukat Ali, J. and it is perfectly apparent to me that his attention has not been drawn to certain provisions of Ordinance XXXV of 1959 such as sections 23 and

24. Nor, does the learned Judge appear to have considered the provisions of section 18 of this Ordinance which clearly provides that an appeal from an order of the Tribunal under section 8 of the Act would lie to the Commissioner of the Division in which the Tribunal exercises its jurisdiction. In this order, the learned Judge has further gone on to remark that‑ "section 498, Cr. P. C. which applies to Courts of Session and the High Court is more general in its scope and empowers such a 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 proceedings in the nature of prevention of offences are contemplated." Again, here, it seems to me that the attention of the learned Judge was not invited to the recent ruling of our own Supreme Court in the case of Muhammad Ayub v. Muhammad Yaqub and The State (P L D 1966 S C 1003). In this case it has expressly been held by a majority of their Lordships of the Supreme Court that section 498, Cr. P. C. is ancillary or subsidiary to sections 496 and 497 of the Code and occupies the position of a supplementary provision supple mentary to the two proceeding sections. This same view was adopted by our former Federal Court in the case of Gushtasab Khan v. The Crown (P L D 1956 F C 117). I cannot, therefore, bring myself to be of the view expressed by Shaukat Ali, J. I cannot agree with him when he states that the exclusion of the jurisdiction of a High Court has not expressly been provided for in Ordi nance XXXV of 1959. To my mind sections 23 and 24 of this Ordinance and sections 21 and 22 of the K. C. D. P. Act, 1952 expressly exclude the jurisdiction of this High Court in matters concerning the appearance of the person complained against before the Tribunal and provided for by section 8 in each case.

8. In the result, therefore, I must reject these four applications for want of jurisdiction to entertain the same. Applications dismissed.