1981 P Cr (PLP)

9. The objection to the jurisdiction would have been weighty if there was any clause in the Zina (Enforcement of Hadood) Ordinance, specifically ousting the jurisdiction of this Court or in any manner suggesting that the provisions of bail in the Code of Criminal Procedure were not applicable. On the contrary it is provided: "that the provisions of Cr. P. Coda; shall apply mutatis mutandis." In Wharton's Law Lexicon mutatis mutandis is defined: with the necessary changes in points of detail." Giving effect to the word `mutatis mutandis' in the context of the proposition in hand, it would only mean that under the amended provisions when a trial of a case in respect of the offences under the Hudood Ordinance is conducted by a Court of Session, it shall hold the trial in accordance with Chapter 22-A of the, Cr: P. Code, which would not have been possible without the amendment quoted above, as the case under the Hudood Ordinance would have been tried by a Magistrate in accordance with Chapter XX of the Code of Criminal Procedure. A perusal of section 20 of the Zina (Enforcement of Hudood) Ordinance, 1979 clearly shows, and therefore, there can be no two views in so far as the ouster of the jurisdiction of this Court is concerned, it has not been done. Actually the learned Additional Advocate-General could not refer to any provision because of which it could be said that the jurisdiction of this Court has been specifically ousted. Under the circumstances the only point, therefore, left is whether there is ouster of jurisdiction of the High Court by necessary intendment.

10. Main argument advanced to substantiate the submission that the jurisdiction of this Court stands ousted by necessary intendment is that the amended section 20 of the above referred Ordinance of 1979 provides trial by the Court of Session and an appeal therefrom lies to the Federal Shariat Court only and thus the jurisdiction of the High Court both appellate and otherwise has been taken away. As far as the ouster of appellate jurisdiction is concerned the provision is obviously express and specific. However, as far as the taking away of plenary powers of the High Court including those under section 498 of the Code of Criminal Procedure is concerned, can it be legally substantiated that there is ouster of jurisdiction by necessary intendment?

11. Subject, of course, to some exceptional cases, the question of bail more than often arises at a preparatory stage, i.e. during the course of investigation, or before the trial has actually commenced. Powers of the High Court to grant bail at this stage of proceedings are contained in section 498 of the Cr. P. Code. The scope and extent of these powers under circumstances of the nature that exist in the case in hand was very aptly considered by the Supreme Court of Pakistan in Ch. Zahoor Elahi's case, referred to above and Jamil Ahsan Gill v. The State (P L D 1980 Lah. 184) which took note of the entire case-law uptodate. Since I cannot add anything to the summing up of Ch. Zahoor Elahi's case on the point I reproduce the relevant observation in verbatim from para. 8 of the judgment of my brother S. Aftab Hussain, J. (as his Lordship then was) in Jamil Ahsan Gill's case:-- "All other Judges comprising of the majority did not, however, agree with this. Muhammad Akram, J. held that (pages 342) an examination of all these provisions of the above Ordinance shows that the Special Tribunal is constituted only for the `trial' of the cases entrusted to it and the Procedure is also directed towards that end in view. It does not deal with cases in their preparatory stages up to the point when they are made ready for trial. The Tribunal commences the proceedings before it by taking cognizance of the case. As such the proceedings of a Special Tribunal within the meanings of subsection (1) of section 13 of the Ordinance have a special connotation. The protection extended by this subsection is contined to the 'proceedings of a Special Tribunal' properly so-called and not to any and every proceedings before it, it was, therefore, held that the jurisdiction of the High Court to grant bail before that stage remained intact. Muhammad Gul, J. agreed with the argument that the matters relating to grant of bail being extraneous iii section 13 nothing contained there will affect that right whi4ai in the absence of any provision to the contrary in the Ordinance and the rules will fall to be governed by section 498, Cr. P. C. (pages 358, 359 of the report). It was, therefore, held that the High Court had the jurisdiction under section 498, Cr. P. C. tip allow bail to a person accused of a contravention of any rule Defence of Pakistan Rules albeit the Special Court in seizin of the case, had refused bail. Salahuddin Ahmed, J. also held that since section 498, Cr. P. C. was not mentioned in section 13 of the Ordinance, the jurisdiction under that section was not taken away. It was observed (page 325) that it is now a well -established principle of interpretation of Statutes that the jurisdiction of a High Court cannot be abolished or ousted unless this is done by express words or clear intendment. It was also held that even in cases of bar of jurisdiction the Court acts under Article 199 of the Constitution on an application under section 498, Cr. P. C." Above referred summing up by S. Aftab Hussain, J. makes it clear that the powers under section 498 of the Code of Criminal Procedure remain intact.

12. In this context the words `whether there be an appeal on conviction or not' appearing in section 498 of the Code of Criminal Procedure, are also very significant. While conferring powers on a High Court to grant bail in any case, the use of the above-mentioned words show that the intention of the Legislature was to confer powers on the High Courts even in cases in which these Courts do not figure in the hierarchy of the appellate Courts. Thus even in a case in which tile High Court is not the appellate Court, it still has the jurisdiction to rant bail before or during the trial.

13. There is yet another aspect of the case. Chapter XXXII of the Code which deals with revisions empowers a High Court to exercise its revisional powers to see the correctness, legality or the propriety or orders passed by an inferior Court and can examine any finding sentence or order recorded or passed by the Court of inferior jurisdiction, and it is well understood that appellate and revisional jurisdiction are distinct and quite independent of each other, and the ouster of one cannot be deemed to intend the ouster of the other jurisdiction. Under section 2 of the Zina (Enforcement of Hudood) Ordinance, 3979, expressions not defined in the Ordinance are to have the same meaning as in the P. P. C. or the Cr. P. C. The term `Sessions Judge' which is not defined in the Ordinance shall therefore, have the meaning as given in sections 8 and 9 of the Code of Criminal Procedure. While dealing with the case under the Ordinance, he shall be deemed to take cognizance of and conduct the trial as a Sessions Judge and not as a persona designata, like in the case of a Special Judge appointed to act as Rent Controller under the Rent Restriction Ordinance. Sessions Judge is a subordinate or a Court inferior in jurisdiction to the High Court and as such is subject to the revisional jurisdiction of the High Court.

14. And if the argument of the learned counsel for the State was to be accepted and taken to its logical conclusion it would lead us to accept that directly or indirectly, it would rest upon a Moharrir Head Constable sitting in the Police Station to decide at the time of recording the first information report as to whether he would like to confer the jurisdiction upon the High Court or not, for deciding a case. For instance for an offence under section 494, P. P. C. which is not an offence under the Zina (Enforcement of Hadood) Ordinance, Moharrir Head Constable could oust the jurisdiction of this Court by merely adding a section of the Hudood Ordinance amongst the offences for which he chooses to record first information report, irrespective of the character of the offence and it will be unjust to assume that the Moharrir Head Constable recording the first information report is deemed to have possessed the powers to add any section of the Pakistan Penal Code or the Zina Ordinance, and thereby possessing the powers to oust the jurisdiction of this Court by changing the forum of trial or the procedure which is to be followed for rendering justice to the accused. Quite often the Judges rely on what they regard as a `sensible' or common sense' interpretation in order to reach the true meaning of a statute. The sense of the possible injustice of an interpretation may properly lead to the selection of one rather than the other of the two reasonable interpretations. Whenever the language of the Legislature admits of two interpretations or two constructions and if construction in one way would lead to obvious injustice, the Courts act upon the view that such a result could not have been manifest in plain words and it his regard I would refer to Smith v. Great Western Railway Co. ((1877) 3 A C 165) and the chain of authorities down to Courts & Co. v. ((1953) A C) I. R. C.

15. The proposition canvassed by the learned Additional Advocate General has to be rejected yet on another principle of interpretation i.e. avoiding the interpretation leading to `hardship'. According to amendment in subsection (i) of section 20 of the Ordinance, it has been provided: "Provided further that trial by a Court of Session under this Ordinance shall ordinarily be held at the headquarters of the, Tehsil in which the offence is alleged to have been committed." The intention is obviously to hold the trial or deal with the culprits of the offence alleged as nearer to the place of occurrence as possible for reasons like convenience of the parties, impact on the people of the vicinity, of justice rendered at the spot etc. etc. and studying conversely, the proposition canvassed by the learned Additional Advocate-General it could result in a proposition that if the Sessions Judge at Loralai in Baluchistan refuses bail to a person accused of an offence under the, Hudood Ordinance, then the accused has to incur expenses and suffer the hardship of applying before the Federal Shariat Court at its Headquarters in the Capital, or wait for the next circuit in the Provincial Headquarters, which may only be once or twice a year, and thus remain in jail for a considerable time before his being proved as a guilty person and even though he can reasonably show his case to be one fit for bail. For all these reasons I am of the view that this Court also continues to have the jurisdiction to grant bail in a case registered under the Zina (Enforcement of Hudood) Ordinance, 1979. Bail allowed.