P L D 1980 Lahore 54 (PLP)

Shahzad Hussain and Muhammad siddique have filed this revision petition bearing Crl. Rev. No. 133 of 1979, under sections 439, Cr. P. C. and 561-A, Cr. P. C., challenging the order dated 19-2-1979, passed by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act of 1975, hereinafter to be referred to as the Act. Both the petitioners were taken into custody and sent to District Jail.

2. A case under section 392, P. P. C. was registered at Police Station, Mozang, Lahore, on 2-12-1975, at the instance of Muhammad Saeed Moghal, Manager, United Bank Limited, Samanabad, Lahore. The petitioners were arrested in the said case on 2-12-1975. They were allowed bail on 14-11-19-77 by the Special Court comprising of Ch. Ghulam Hussain, after they had remained in jail for nearly two years. Statement of Muhammad Sadiq, Gunman of the Bank was recorded on 6-4-1976. He stated .in Court that he was unable to identify any accused. He was allowed to be cross-examined by the P. S. I. The petitioners continued appearing throughout before the Special Court. The case was fixed before Khawaja Ebsan-ul-Haq (successor of Ch. Ghulam Hussain), on 19-2-1979. Both the petitioners were present in person. Following order was passed by the Special Court on the said date: "Present Spl. P. P. for the State. Muhammad Siddique and Shahzad Hussain, two of the accused (on bail), in person. Nemo: for Arshad alias Goga, accused (who is being tried in absentia). Order; Notice to surety of Arshad alias Goga has not been received back. Fresh notice be issued to the surety for 16-5-79.

2. I have thoroughly examined the record. The accused were allowed bail by my learned predecessor on 14-11-77 on the sole ground that they were arrested on 2-12-75 and the trial had not till then been commenced. I call upon them to show cause why their bail be not cancelled.

3. I have heard the parties. The culprits who entered the premises of the complainant bank were four in number. They were armed with stengun, etc. They removed cash and other documents of the hank along with gun and cartridges of the gunman of the Bank. They committed this offence on point of sten-gun. One of the culprits was identified in the very occurrence by the Bank staff' as an employee of a certain person named in the complaint while the description of the remaining three was given therein. One of the culprits named Ghulam Asghar was found dead in the night after occurrence which took place on 2-12-75. The remaining three were arrested on 2-12-75, 3-12-75 and 4-12-75 and they were identified in an identification parade on 8-12-75. During investigation, recovery of cash was made from the three accused other than Ghulam Asghar. Sten-gun was recovered from Arshad alias Goga. There appears reasonable ground for believing that the accused have been guilty of scheduled offence. They cannot legally be allowed to remain on bail. They shall be taken into custody and sent to District Jail, Kot Lakhpat, Lahore, to be produced before this Court on 2-6-79."

3. The order of the Special Court has been challenged on the following grounds: (a) That the impugned order was illegal and liable to be set aside; (b) That no sufficient notice was given to the petitioners and they were un-represented by the counsel when the impugned order was passed; (c) That the petitioners remained on bail for nearly fifteen months and there was no application from the prosecution or the Bank for the cancellation of bail; (d) That the petitioners had been appearing in Court throughout and there was no allegation that they had misused the concession of bail or tampered with the prosecution evidence.

4. It is explicit from the order that the petitioners were arrested on 2-12-1975 and released on bail by the Special Court on 14-11-1977, on the ground that the trial had not yet commenced. In the impugned order, merits of the case were discussed and according to the Special Court, there appeared reasonable grounds for believing that the petitioners had been guilty of a scheduled offence.

5. The learned counsel for the petitioners formulated the following points: (i) Whether the Act takes away completely the revisional powers of this Court ? (ii) If so, whether the taking away of the revisional powers of this Court is not repugnant and hit by Article 203 .of the Constitution of the Islamic Republic of Pakistan, 1973? (iii) Whether High Court can entertain petition under section 561-A, Cr. P. C. in respect of a case pending before the Special Court and prevent the abuse of process of Court?

6. In order to decide this petition, it shall have to be determined whether or not this Court is competent to hear revision petition under section 439, Cr. P. C. or petition under section 561-A, Cr. P. C., in view of the provisions of section 7 of the Act. For the purpose of appreciation of the proposition involved, it would be of advantage to reproduce section 7 of the Act verbatim:- "Appeals from sentences imposed by Special Court, etc.-(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426, or section 491, or section 498, of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. (2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court. (3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court."

7. The learned counsel for the petitioners contended that the revisional powers of High Court under section 439, Cr. P. C. had not been taken away expressly and such powers could not be taken away impliedly. He referred to the relevant portion of section 7 and submitted that sentence passed by the Special Court could not be revised. He further submitted that the revisional powers of High Court could not be taken away by any special enactment as it would be repugnant to the Constitution and hit by Article 203 of the Constitution and if any such enactment is enforced, it has to be ignored. In support of his submissions, be placed reliance on cases titled Wali Muhammad v. Government of Pakistan and 3 others (1), Karim Bakhsh v. Mst. Mubarik Jan (2) and Muhammad Siddiq v. Syed Ali Shah and another (3), Learned counsel also agitated the point that inherent powers of High Court under section 561-A, Cr. P. C. always remain intact and even in the Act, those powers have been saved and if the intention of the Legislature had been otherwise, section 561-A, Cr. P. C. would have been included in the Act along with sections 42: , 491, and 498, Cr. P. C. Alternatively, it was argued that even if it be assumed for the sake of arguments that the inherent powers of this Court had been taken away, still this Court is competent under Article 203 of the Constitution to rectify the error committed by the Special Court. Reliance was placed on cases titled D. N. Banerji, Administrator of the Budge Municipality v. P. R. Mukherjee, Chairman, Industrial Tribunal and others (1), Haridas Manekchand Kothari v: Tulsidas Harakhaji Parekh and another (2), Girdhar Lai and another v. State (3), Ali Muhammad Mandal and others v. Pigot and others (4), Mst. Khela Watf v. Chet Ram Khub Ram (5), Aswini Kumar Pramanik v. Dominion of India, through the Certificate Officer (6) and Tirath Singh Narain Singh v. Bachitar Singh and others (7). (1) P L D 1970 Pesh. 119 (2) P L D 1970 Pesh. 169 (3) P L D 1976 Lah. 293

8. The learned counsel for State contended that this Court was not competent to exercise jurisdiction of any kind in respect of any proceedings of the Special Court. He read out the last line of section 7 of the Act which contained the above-quoted words.

9. Suppression of Terrorist Activities (Special Courts) Act, 1975, was brought in for the purposes of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherance or in connection with such acts. Special Courts were constituted under the Act. Offences mentioned under the Schedule were made triable exclusively by the Special Court under section 4 of the Act. Procedure of Special Court has been prescribed in section 5 of the Act. Section 5(6) of the Act deals with grant of bail and the prohibitions contained in this section have been borrowed from section 497(1), Cr. P. C., with the only difference that in the Act "guilty of scheduled offence" is recorded whereas in section 497(1), Cr. P. C., words "offences punishable with death or imprisonment for life or imprisonment for ten years" appear. It is now well-settled law that bail cannot be withheld by way of punishment and notwithstanding the prohibitions, bail is generally allowed on the ground of shocking delay or where it is found that it is a case of an abuse of process of law. The bar is not absolute and each case is to be dealt with on its own merits.

10. It is provided in section 7 of the Act that no Court shall have authority to revise such sentence and under this provision sentence passed by the Special Court cannot be revised. But in the instant case, revision of sentence is not involved. What is specifically barred under section 7 of the Act is the transfer of case from a Special Court, making of orders under section 426, 491 or 498, Cr. P. C. Bail is granted under the provisions of section 497, Cr. P. C. Powers of this Court under section 498, Cr. P. C. are only ancillary. When a person is arrested under any non-bailable offence or detained without warrant by an Officer Incharge of a Police Station, or appears or is brought before a Court, he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. The words used "a Court" would not mean the trial Court. If the intention of the Legislature had been to give power of bail to the trial Court alone, words "trial Court" would have appeared in the section instead of words "a Court". It is for this reason that Duty Magistrate allows bail to an accused, even if he is not the trial Court, when the accused is produced before him for remand purposes. It is given in section 5(6) of the Act that an accused person shall not be so released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released. If the intention of the Legislature. had been to exclude other Courts in the matter of bail for offences falling under the schedule of the Act, words "or by any other Court" would not have appeared in the section 5(6). These words had been intentionally incorporated so as to give jurisdiction to other Courts in cases where the Special Court is not functioning due to absence, leave etc. The only bar placed in the matter of bail is that bail shall not be allowed if there appeared reasonable grounds for believing that the accused has been guilty of a scheduled offence. Section 28 of the Criminal Procedure Code lays down that any offence under the Pakistan Penal Code may be tried by the High Court or Court of Session or by any oilier Court by which such offence is shown in the 8th column of the Second Schedule to be triable. Section 29 of the Criminal Procedure Code deals with offences under other laws. Section 4 of the Act reads that the scheduled offences shall be triable exclusively by a Special Court but it did not mean that the inherent power under section 561-A, Cr. P. C. or the revisional powers of this Court against an interim or interlocutory order had been taken away. Similarly, section 7 of the Act does not take away the inherent jurisdiction of this Court conferred by section 561-A, Cr. P. C. or the revisional powers against the interim order or interlocutory order. The section only takes away the revisional powers against judgment because provision for appeal before the High Court has been provided. The revisional powers or the inherent powers of this Court cannot be taken away impliedly. (1) A I R 1953 S C 58 (2) A I R 1953 Shtra. 30 (3) A I R 1952 All. 787 (4) A I R 1951 Cal. 30 (5) A I R 39 1952 Pato. 67 (6) A -I R 1952 Cal. 251 (7) A I R 1954 Pat. 118

11. Judgments passed by the Special Courts are appealable to the High Court. Special Court is subordinate to the High Court. Article 293 of the Constitution of the Islamic Republic of Pakistan provides that High Court shall supervise and control all Courts subordinate to it. It is well-settled law that High Court is competent, in exercise of the powers of superintendence, to set aside proceedings instituted without jurisdiction by a subordinate:, Court. The High Court, under Article 302 of the Constitution has the authority to check and prevent dereliction of duty and to stop as well as correct violation of law. In case titled Girdhar Laws and another v. State (1), it was held that though the revisional powers of High Court had been taken away by section 85(5) of the Panchayat Raj Act, 1947, the High Court has the power of superintendence under Article 227(1) of the Constitution of India and can in exercise of the powers, set aside an order passed in complete disregard of the first principles of judicial procedure in the proceedings under that Act. Power of High Court in no sense is restricted in application to civil cases. It is equally applicable to criminal matters. It is exercised ex debito justicia to do real and substantial justice for the administration of which alone Courts exist. Special Bench consisting of rive Judges took up the view in case titled All Muhammad Mandal and others v. Pigot and others (2), that a High Court is competent, in exercise of the powers of superintendence, vested in it under section 107 of the Government of India Act, 1915, to set aside proceedings instituted without jurisdiction by a subordinate Court. Such power of superintendence can be exercised notwithstanding section 425(3), Cr. P. C. which lays down that proceedings under Chapter XII (which comprises of sections 145 to 148) are not proceedings within the meaning of that section. It was further observed by their Lordships that the High Court can, when it sets aside the proceedings, proceed to give such consequential direction as may be found necessary in the interest of justice in the circumstances of the particular case. It was held in case titled Harldas Manekchand Kotharl v. Tulsidos Harakhaji Parekh and another that- where the Court exercises its discretion to hear the case as a whole and not to try the issue of jurisdiction as a preliminary issue, even if technically the case does not fall under section 115, the High Court has under the Constitution wide powers of superintendence and it will not hesitate to interfere if there has been an obvious error in procedure involving the parties unnecessarily into considerable expense and inconvenience. It was held by the Supreme Court in case titled D. N. Banerji, Administrator of the Budge--Budge Municipality v. P. R. Mukherjee, Chairman, Industrial Tribunal and others that if the dismissal of the two employees were clear cases of victimisation amounting to grave miscarriage of justice or flagrant violation of law, High Court can interfere under Articles 226 and 227 of the Constitution. Our High Court had taken up a similar view in case titled Muhammad Siddiq v. Syed Ali Shah and another. His Lordship held that the High Court under Article 203 of the Constitution has judicial control over the subordinate Courts and orders passed by the lower Court, examined in context of provisions of relevant law, neither judgments, nor orders from legal stand point, can in exercise of its Constitutional jurisdiction under Article 203 declare such judgments or orders to be null and void and direct lower Court to do that which it was bound by law to do. Similar view had been taken in cases. titled Tirath Singh Narain Singh v. Bachitar Mil Singh and others (1), Aswdri Kumar Pramanik v. Dominion of India through the Certifi_-ate Officer (2) and Mst. Khela Wati v. Chet Ram Khub Ram (3). (1) A I R 1952 All. 787 (2) A I 8.1921 Cal. 30

12. In view of what has been stated above, I hold that the inherent jurisdiction of this Court under section 561-A, Cr. P. C. as well as the revisional powers under section 439, Cr. P. C., except revisional power against judgments, are intact. Besides, this Court in exercise of powers o superintendence and control conferred by Article 203 of the Constitution, i competent to correct any order passed by the Subordinate Court in violations of law.

13. Now comes question whether or not the impugned order had been; passed in excess of jurisdiction/against principles of natural justice. It is a beaten law that where an order is to be passed against the interest of a party,, sufficient notice of it has to be given to that party. This view had been taken. in case titled Riasat All v. Ghulam Muhammad and another (4). In the instant case, the petitioners were on bail. They remained on bail for sufficient long time. The prosecution did not move for the cancellation of bail. There was no allegation that the petitioners misused the concession of bail or tampered with the prosecution evidence. The case was fixed for 19-2-1979. The petitioners were present in person. Their counsel had not reached., The Special Court examined the record and called upon the petitioners to show cause as to why their bail should not be cancelled. The petitioners were caught unaware. They were not supposed to argue the legal points involved. They were not even afforded opportunity to call their counsel. It would have been just and proper to adjourn the case to some other date or at least the petitioner should have been afforded opportunity to call their counsel. . The impugned order was passed with undue baste. It has been held by his Lordship in case titled Riasat All v. Ghulam Muhammad and another (1), that delay in prosecution case amounting to abuse of process of law is a valid ground for enlarging the accused on bail. It would be pertinent to note that in the case in hand, the petitioners were allowed bail on the ground of delay of nearly two years. It was further held by his Lordship in the above cited case that in the matter of cancellation of bail, notice should always be sent to the accused well in advance of the 'date of hearing. Since! no sufficient notice was given in advance and no opportunity was given to they petitioners to call their counsel, the impugned order cannot be sustained and it is set aside. The original order of bail is restored. The petitioners, shall be deemed to be on bail. They shall be released from the jail forthwith unless required in same other case. (1) A I R 1954 Pepsu 118 (2) A I R 1952 Cal 251 (3) A I R 1952 Pb. 67 (4) P L D 1968 S C 353 M. A. x. Petition accepted.