P L D 1985 Lahore 10 (PLP)

GUL MUHAMMAD KHAN, J.-The petitioner was granted bail vide order, dated 2nd August, 1.984 of this Court, in respect of offences under section 420/409/468/471, P. P. C., read with sections 5(2) 47, P. C. A., in a case registered by F. I. A., Rawalpindi. It was observed in the said order that the detailed reasons about maintainability of the petition and the power of the Court to grant bail, shall be supplied later and the same is being done hereunder,

2. Section 3 of the Banks (Special Courts) Ordinance, 1984 provides that the Federal Government may, by notification in the official Gazette, constitute, in the whole or any part of Pakistan, Special Courts, consisting of a person, who has been or is qualified for appointment as a Judge of the High Court. In pursuance thereof, a Special Court consisting of a sitting Judge of this Court had been constituted. The petitioner who is facing trial before the same Court applied for grant of bail but his prayer was rejected on merit. The learned Special Court had, however, granted bail to a co-accused. The petitioner then moved this Court for the same relief under sections 497 and 498 of the Criminal Procedure Code.

3. The main objections raised on behalf of the respondents were ; (i) That as the Special Court is presided by a sitting Judge of this Court, it is a High Court and, therefore, no fresh application can be entertained after one has already been rejected. (ii) That section 10 of Ordinance IX of 1984 ousts the power of the High Court to .grant bail in respect of the scheduled offences and there is no other provision available to grant the relief.

4. Admittedly, the function to be performed by a Special Court, under the above-said Ordinance, is purely judicial. The law also names the forum created thereunder, as a Special Court. According to item 55, read with item 28 of the Fourth Schedule, Part I of the 1973 Constitution, the Federal Legislature is empowered to constitute such Courts, as the; subject involved lies within its exclusive law-making sphere. According to Article 175 of the Constitution also, other Courts may be established by law. Section 6 of the Criminal' Procedure Code also makes a similar provision. Consequently, there can be no doubt about the fact that the Special Court is a validly constituted Court. and it is to perform a judicial function under the Constitution and the law.

5. Is it then a High Court or a Court subordinate to it? As said in para. 2 above, the Special Court is not necessarily to be presided by a sitting Judge of the High Court. The incumbent may even be a person qualified to be a Judge of the High Court. Further, the Special Court is not a Bench of the High Court as the appointment/nomination is to be made not by the Chief Justice but the Federal Government. In Abdul Hafiz v. The State (P L D 1981 S C 352), the Drug Court similarly established under section 31 of the Drugs Act (XXXI of 19)6) had been held to be a Court judicially inferior to the High Court. The same result would follow from the fact that an order of the Special Court imposing sentence on an accused is appealable before two Judges of the High Court within whose jurisdiction sentence has been passed. As Article 175 provides for only one High Court for each Province, no other Court in that Province can be, equal or parallel to the High Court and, therefore, a Special Court presided over by a sitting Judge of the High Court will be judicially inferior to it.

6. The learned counsel for the respondent referred to the case of Krishna v. The State (P L D 1972 S C 1), and argued that the learned Single Judge, constituted as a Special Court in this case, was only a persona designata and not a Court. It may be noted that the petitioner in that case had been convicted alongwith another under section 3 of the Official Secrets Act, 1923 and Enemy Agents Ordinance, 1943 and sentenced to death. Those proceedings were, therefore, also purely judicial. Section 9 of the Ordinance provided for the appointment of a Reviewing Authority who, in that case, was also a sitting Judge of the High Court. He considered the case in that capacity and affirmed the conviction. An appeal taken before the Supreme Court against the said order was rejected on the ground that the Reviewing Authority, being a persona designata and not a Court or a High Court, was not covered by Article 58 of the Constitution of 1962.

7. The contention raised by the learned counsel for the respondent, however, has no force in the presence of changed constitutional position. The 1962 Constitution provided under Article 129 that there shall be, in addition to the Supreme Court and the High Court, such other Courts a. are established by law. The Constitution did not demarcate their sphere of jurisdiction. However, Article 130 laid down that no Court shall have an jurisdiction that is not conferred on it by the Constitution or by or under law. So, the establishment of a Special Court, withour making its orders appealable before the High Court or Supreme Court shows in the absence of anything that it was a Court subordinate or inferior to the High Court, that its orders would be final. On the contrary, the Article 175 of the 1913 Constitution does place the entire judicial power under the High Court, subject to such specific exclusions which are expressely noted in some other Article like 212 etc. Reference be again made to 4bdul Hal* v. The State, Article 175(3) further states that the judiciary shall be progressively separated from the executive within the given time. No such provision existed in the 19(2 Constitution. It is, therefore, quite evident that whereas the previous amalgam of the executive and judicial powers must be separated within the given time, no new judicial function, other than the ones express mentioned in the Constitution, shall be conferred on any executive authority, after the commencing date. This Court has already taken the same view in Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. (P L D 1984 Lab. 69). Thus the Legislature cannot be considered to have given such power to a persona designata or any other executive authority in a 1984 Ordinance. The Special Court, therefore, as it is also so named, is a Court constituted under the Constitution, and is inferior to the High Court.

8. The next question arising for consideration is that if the Special Court is a Court inferior to the High Court, is it subject to its power of superintendence and control under Article 203 of the Constitution? This is a very important question but we do not feel the need to give our well-considered view on it, for the reason that the case in hand can be decided on other short grounds. Suffice it to say that as there can be only one High Court for a Province, according to Article 175 of the Constitution, there can be no Court parallel to the High Court there. The Court of the Special Judge as held in the case of Abdul Hafiz v The State, is a Court judicially inferior to the High Court. The High Court may, therefore, correct any of its orders that may fall within the ambit of Article 203 of the Constitution. D This view has already been expressed by a learned Single Judge of this Court in a very well-reasoned judgment reported as Shahzad Hussain v. T State (P L D 1980 Lab. 80). The control of such a Court, however, if presided over by a Judge of the High Court shall not lie within the High Court, so far as the situation is covered by the express provision of Article

209. In this view of the matter, the only power to be exercised by the High Court in respect of such Special Court, presided over by a sitting Judge of the High Court, is to b confined to the superintendence and not control.

9. The other question is, do the contents of section 10 oust the jurisdiction of the High Court to grant bail? Section 10 of the Ordinance 1X, referred to above reads as under :- "

10. Appeals from sentences passed 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."

10. A careful reading of this section would show that the provisions for the release of an accused, whether on bail or otherwise, are intended for the High Court and mean to operate at a stage after conviction and sentence. The section gives a right of appeal to a convicted person to begin with but it also prohibits the revision (obviously by the High Court) of the sentence imposed by the Special Court. The suspension of sentence by the Appellant Court, which in this case is High Court, under section 426, Cr. P. C. is also taken away The prohibition to make an order under section 491, Cr. P. C., by the High Court, has also been imposed. The inclusion, in this ouster clause, of section 498, Cr. P. C., may therefore, mean to deprive the High Court of its power to grant bail only after conviction, as is clear from the following wording of section 498, Cr. P. C. :- "High Court may in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail " The other contents of the section 10, which pertain to proceedings before the Special Court have nothing to do with the release of an accused and, therefore. we need not go into the same. It is, therefore, quite clear that section 10 is not meant to oust or even curtail the power of the High Court to grant bail at the trial stage.

11. Our above conclusion is supported firstly, by the fact that section 1 does not oust and leaves intact, the power of the High Court to grant bail under section 497, Cr. P. C. This power is quite independent of section 49-, Cr. P. C. as clearly held by the Supreme Court in Muhammad Ayub v. Muhammad Yaqub (P L D 1966 S C 1003). The following observations of Cornelius, C. J. at pages 1015 and 1016 supporting the majority view may be reproduced with advantage : "I have to add that i am unable to accept, speaking with due respect, the reason advanced by my learned brother, Muhammad Yaqub Ali, J., for coming to the contrary conclusion, viz., that the expression "a Court" in section, 497, Cr. P. C. has reference to Courts other than the High Court or a Court of Sessions. There are no words in section 497, Cr. P. C., or elsewhere in the Code which even by implication could have the effect restricting the full meaning of the words "a Court" used in that section." Had, the main burden of section 10, been with regard to bail during trial,, section 497, Cr. P. C., must have also been excluded in order to deprive the High Court of that power. That being not the case, the power of the High Court to grant bail under section 497, Cr. P. C., would stand put, in any case.

12. Even section 5(6) of the Ordinance IX of 1984, reinforces our view that the power of the High Court to grant bail is not ousted. Reference in this connection be made to Shahzad Hussain v. State (P L D 1980 Lah. 54) and Abdul Rahman v. State (1979 P Cr. L J Note 43 at p. 28, where the High Court allowed bail in a similar provision under the Suppression of Terrorist Activities (Special Courts) Act, 1975. Another learned Single Judge of this Court in Muhammad Rashid v. State (P L D 1981 Lab. 26) came to the conclusion that the establishment of a Special Court under P. O. 16 of 197 1, to be presided over by a Judge of a High Court, in order to exclusively try holders of public office.- for misconduct, did not oust the power of the High Court to grant bail. It may be noted that orders of the Special Court convicting and sentencing the accused under the above law were made appealable before the Supreme Court and not the High Court. It may also be seen that subsection (7) of section 4 further provides that any bail granted by the Court which tried the case before shall also stand cancelled. There is, however, no such provision with regard to bails granted by other Courts, including the High Court.

13. The subsection (6) of section 5 reads as under; "An accused person shall not be 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 so be released unless the prosecution has been given notice to show cause why he should not be so released." This is mainly a prohibitory provision. However, it also regulates the power to grant bail. When we compare it with the wording of sections 497 and 498, Cr. P. C., we find that those two sections are in positive terms and empower the Courts to grant bail. The words 'the accuse I shall not be released by a Special Court or by any other Court . . . . . . therefore, must have support of some enabling or empowering provision. Subsection (8) of section 5 gives us an indication that the power to grant bail, may be sought in the Criminal Procedure Code. Section 5(6) further shows that power to grant bail, during the pendency of trial, does not rest exclusively g with the Special Court for, if that was so, the words 'by any other Court' would not have been there. The only restriction placed in this provision is that if the other Court intends to do so it must satisfy itself that there appear no reasonable grounds to believe that the accused is guilty of the scheduled offence. A further look at section 4(7) would show that the automatic cancellation of bail will be there if it was granted only by the trial Court. This provision, therefore, will not be attracted if the bail order was passed by the Court of Sessions, the High Court or the Supreme Court. The intention of the Legislature thus appears to be that the power of the High Court to grant bail at the trial stage under section 497, Cr. P. C., remains intact and it can grant bail if there appear reasonable grounds to believe that the accused is not guilty of the scheduled offence. The - power to grant bail under section 49s or 420, Cr. P . C., however, w-ll not be there after the accused is convicted of a scheduled offence by the Special Court. This interpretation goes also along the well-established principle that the custody during trial is not a punishment and bail must be allowed if the- facts permit and the accused will not defeat the object of law.

14. It is also well-established that a claim about the ouster of the power of the High Court is not to be lightly accepted. The general proposition had, been considered by the- Supreme Court in Ch. Zahur Elahi's case (P L D 1977 S C 273), and held by majority view that section 13(l) of the Defence of Pakistan Ordinance, 071 and rule 210 of the Defence of Pakistan Rule, 1971, did not oust the jurisdiction of the High Court, under the Criminal Procedure Code, to grant bail. It may be noted that in substance section 13(1) and section 10 of the Ordinance IX of 1984, are just similar. The only difference is that section 13(l) did not oust sections 426 and 448, Cr. P. C. Muhammad Gul, J., who subscribed to the majority view observed the following with regard to omission of section 498 :- "It is also well-settled principle relating to the construction of statutes that the exclusion of jurisdiction of superior Courts is not to be readily inferred ; indeed there is a strong leaning against any such exclusion. See Maxwell on Interpretation of Statutes on 1969, p.

153. This rule is deep-seated and if it is to be overturned it must ordinarily be done by a clear, definite and positive provision not left to mere implication. An apt illustration of such a provision is section 6(f ) of the Criminal Law Amendment (Special Tribunal) Ordinance, 1968 (Ordinance V of 1968) (since repealed). This Ordinance was promulgated to set up a Special Tribunal to try late Sh. Majibur Rehman and certain others for what is commonly known as a 'Agartala Conspiracy' case. Section 6 of that Ordinance related to the powers of the Tribunal and the procedure to be followed by it. Clause (f) ibid provided "the provisions of Chapter XXXIX of the Code shall not apply and the Special Tribunal shall not admit any of the accused persons to bail." .. On the above analysis I am perfectly clear in my mind that in a proper case, a High Court has the jurisdiction under section 498, Cr. P. C. to allow bail to a person accused of a contravention of any rule of Defence of Pakistan Rules albeit the Special Court in seizrn of the case, has refused bail."

15. Rule 210(b) of the Defence of Pakistan Rules and section 6(5) of Ordinance IX of 1984, have also a similar import inasmuch as that the Courts in both the case. are prohibited from granting bail unless they come to the conclusion that there are reasonable grounds for believing that the accused is not guilty of the offence Their noticeable difference, however, is that whereas subsection (6) of section 5 of Ordinance IX of 1984, mentions both the 'Special Court' and the 'Court' the words 'Special Court' are omitted in rule

210. In the light of the above, the relevant portion of the judgment of Salabuddin, J., at the bottom of page 326 and extending to page 327 is as under : "It will, thus, be noticed that rule 210 above deals with the subject of bail specifically as such and that although' it mentions 'Court' it does not mention 'Special Tribunal'. The omission is deliberate for the jurisdiction of the ordinary Court has been specifically preserved in certain matters including power to grant bail. Furthermore, under section 12 of the Ordinance the Special Tribunal having been clothed with powers of a Court of Sessions may exercise concurrent power of granting bail under section 498 of the Code of Criminal Procedure with the High Court, but it can only do so when it has already taken cognizance of a case under rule

209. The High Court's jurisdiction to admit to bail under section 498 of the Code of Criminal Procedure is not ousted either under section 13 of the Ordinance or under rule 210 of the Rules. The jurisdiction of other competent Courts to grant bail before the Special Tribunal takes cognizance is also not ousted, nay, it is preserved under section 14 of the Ordinance." The upshot of the discussion is that the Special Court is a validly constituted Court, inferior to the High Court and that the power of the High Court to grant bail under section 497, Cr. P. C., has not been ousted by section 10 of the Ordinance IX of 1984. M, z, M, Bail granted.