P L D 1973 Karachi 674 (PLP)

(a) to death or transportation for life, or (b) to imprisonment for a term extending to ten years under section 5 of this Act or under subsection (1) of section 5 of the India Official Secrets Act, 1923, as amended section 6 of this Act-- 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 farce, or of any thing having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of a Special Tribunal, and no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the Code, or have my jurisdiction of any kind in respect of any proceedings of a Special Tribunal. (3) The powers conferred upon the Provincial Government and the Governor‑General by Chapter XXIX of the Code shall apply in respect of a person sentenced by a Special Tribunal. Section 13 of Defence of Pakistan Ordinance, 1971: ‑‑‑ Appeals from sentences imposed by Special Tribunals, etc.‑(1) A person sentenced by a Special Tribunal‑ (a) to death or transportation for life, or (b) to imprisonment for a term extending to ten years under section 6 of this Ordinance or under subsection (4) of section 5 of the Official Secrets Act, 1923 (XIX of 1923) as amended by section 7 of this: Ordinance‑‑ 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, there shall be no appeal from any order or sentence of a Special Tribunal, lid no Court shall have authority to revise such order or sentence, or to transfer my case from a Special Tribunal, or to make any order under section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal. (2) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Tribunal, 110 however, that the powers exerciseable by the Provincial Government under that Chapter shall be exercised by the Central Government.

12. Section 14 relates to jurisdiction of Ordinary Courts. For the sake of convenience both the sections are given as under :‑ "Defence of India Act, section 14.‑Save as otherwise expressly provided by or under this Act, the ordinary criminal and civil Courts shall continue to exercise jurisdiction." Defence of Pakistan Ordinance, section 14‑`(1) Except as may be provided in this Ordinance or in any rule made thereunder or in any order made under any such rule by the Central Government or the Provincial Government or by an officer not below the rank of collector empowered under subsection (4) or subsection (5) of section 3 to make such order, the ordinary criminal and civil Courts shall continue to exercise jurisdic tion. (2) A provision in an such rule or order as aforesaid to the effect that the decision of any authority, not being a Court shall be finial or conclusive shall be a sufficient except ing provision within the meaning of subsection (1)."

13. A comparative reading of both the sections goes to show that provision of section 14 of Defence of Pakistan Ordinance are more strict and prove to exclude jurisdiction of Ordinary Courts encompassing wider range of matters than the limitations put by section 14 of Defence of India Act, 1939.

14. A ratio of the above‑stated Madras and Patna judg ments appears to me to be that provisions of Criminal Procedure Code do not apply in respect of offences which comes within the rules framed under Defence of India Act and that Act alone governs all other statutory provisions including rule 130‑A with regards to bails. Rule 130‑A, Defence of India Rules is as under :‑ '130‑A.‑Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no person accused or convicted of a contravention of these Rules shall, if in custody, be released on bail or on his own bond, unless‑ (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where (the prosecution opposes the application and) the contravention is of any such provision of these Rules as the Central Government (or the Provincial Government) may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention). Now this rule 130‑A, Defence of India Rules is analogous to rule 210 of Defence of Pakistan Rules, 1971 which is as under ;‑‑ "Notwithstanding anything contained in the Code no person accused or convicted of a contravention of these rules or orders made thereunder, if in custody, be released on bail or on own bond, unless‑ (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these rules or orders made thereunder as the Central Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention." Apart from the above judgments, learned Advocate‑General relied on a judgment 9n Agha Abdul Karim Shorish Kashmirt and others v. Province of West Pakistan (P L D 1969 Lah. 289).

15. This was a case where the Provincial Government acting under rule 52(1) and (2) of the Defence of Pakistan Rules, 1965, by one order forfeited certain publications and by another order forfeited the printing press wherein the publications had been printed and published. These two orders were made subject‑matter of referenc3 to a tribunal constituted under rule 52(4) of the rules. However, a third order was passed by the Government whereby a declaration under sec tion 7 of the Press and Publications Ordinance, 1960 were shade and subscribed by the publisher was cancelled. It was argued that all the orders were made by the Government behind the back of the printers and publishers and hence were bit by the rule of audi alteram partem. It was held by the Division Bench that "the declarations as to confiscation, though ex post, care in the nature of interim or provisional orders which will remain in force till a final adjudication is made by the tribunal. This, amply satisfies the requirement of the rule audi alteram partem in this case. The same view wag taken in a recent case before the Dacca High Court in Tafazzal Hussain v. Province of East Pakistan. In the case it was held that ex post facto hearing by the tribunal set up under rule 52(4) constitutes 6afcient compliance with the rule of natural justice. However, the order in Annex. R/4 whereby the declaration made and subscribed by petitioner No. 1 under section 7 of 1960 Ordinance was cancelled not being a subject‑matter of reference to the tribunal will not be on a par with the two orders of confisca tion and therefore will be hit by the rule laid down by their Lordships of the Supreme Court in Faridsons Ltd. v. Government of Pakistan a .4lanzu;‑ul‑Hag v. Controlling Authority and Province of East Pakistan v. Nur Ahmad. On this view of the matter, therefore, it was held that the order purporting to cancel the declaration Trade and subscribed by petitioner No. 1 under section 7 of the 1960 Ordinance, being in violation of the rule in audi alteram partem, is void ab initio and is, therefore, set aside as being without lawful authority and of no legal effect.

16. In my opinion this judgment also supports the con tention as the other above stated two judgments of the learned Advocate‑General that once a matter has been referred to a Properly constituted tribunal under Defence of Pakistan Act and Rules which has taken cognizance of matter as in this case, the powers vested in this Court under Criminal Procedure Code cannot be exercised including the powers of grant of bail under section 498, Cr. P. C. provided that the tribunal is properly constituted and it exercises powers vested in it by the statute.

17. Had the matter not been referred to the Sind Special Tribunal by the Federal Government, I would perhaps have gone into question of the reasonableness or otherwise of the detention of the applicant under section 210, Defence of Pakistan Rules. Lastly both Mr. Khalid Ishaq counsel for the application and Mr. A. H. Memon, Advocate‑General heavily relied on the judgment reported in The State v. Habib Jalib. On my questioning both the learned counsel stated that they are not aware of any reported or unreported judgment of this Court or of the Supreme Court where this judgment was referred, relied or dissented. Therefore, I am left with no alternative but to interpret the judgment in light of the light of this arguments and circum stances of the case.

18. This was a case where Habib Jalib was arrested for contravention of rule 47 of the Defence of Pakistan Ordinance, 1965. He applied for bail which was rejected by Magistrate 1st Class Lahore. He, thereafter, made an application under section 497, Cr. P. C. to the Sessions Judge, Lahore who granted the bail. Tae State challenged the grant of bail to the applicant before the High Court oz the revisional side under section 439 read with section 497(5), Cr. P. C. and moved for cancellation of bail. It was argued on behalf of the State that since the objectionable portions of the poem recited by Habib Jalib at a public meeting rot only brought into hatred and contempt the Government established by law in Pakistan but also excited disaffection towards the Armed Forces and prejudiced Pakistan's relations with other powers which amounted to prejudicial act, as defined by rule 41, sub‑rule (6) punishable under rule 47 with imprisonment which may extend to five years, or with fire or with both and as tile case against Habib Jalib under rule 47 was triable by the Special Tribunal constituted under section 8 of the Ordinance, therefore, the learned Additional Sessions Judge was not competent to pass the order granting bail, as the jurisdiction of ordinary Courts was barred. Their Lordships of the Fall Peach after refereed to section 5, section 29 of the Criminal Procedure Code and section 14 of tine Defence of Pakistan Ordinance, 1965 as well as notification of 11th November 1966 by the Government constituting Special Tribunal for trial of Habib Jalib, came to the conclusion that, the jurisdiction of the ordinary Courts was tarred to try those offences which the Central Government notified by general or special order to be triable by a Special Tribunal, and did not agree with the argument that section 14 of the Ordinance saves the jurisdiction of the ordinary Criminal Courts. They also rejected the argu ment, that the learned Sessions Judge was competent to grant bail in the absence of setting up of a Tribunal constituted by the Central Government and pointed out that although one of the members had not joined the Tribunal when the application of Habib Jalil came up for consideration before the learned Additional Sessions Judge yet the Special Tribunal was com petent to take cognizance of offences without the accused being committed to it for trial and tic contention that the Tribunal could not take cognizance of offences without the accused being committed to it for trial and the contention that the Tribunal could not take cognizance except upon a report in writing of the facts constituting such contravention made by a public servant was successfully met with the argument that the Police Report in this case amply complied with the provisions of rule 205(1) of the Defence of Pakistan Rules. With the publica tion of Notification No. S. O. R. 174(R)/66, dated the 11th of November 1966. the offence committed by the respondent was triable exclusively by the Special Tribunal and as such the considerations laid down in rule 206 of the Defence of Pakistan Rules, 1965 for the grant of ball applied.

19. Their Lordships relied on Samila v. Emperor (A I R 1917 Lah. 138) accepted the application and cancelled the bail granted to Habib Jalib by the learned Sessions Judge, Lahore, holding that he had no jurisdiction to grant the bail.

20. In Samila case by an order dated 19th April 1915, under section 3(1) of the Defence of India Act, 1915, the Local Government had directed that all persons accused of that offence committed on 27th February 1915 at Basti Naurang should be tried by Commissioners appointed under the provisions of the same Act.

21. It so happened that at the time of the session of the Tribunal the appellant was absconding the Tribunal was later on dissolved but the initial order of the Government remained unrevoked. It was argued on behalf of the Government that as the Tribunal is no longer in session the jurisdiction of the Ordinary Courts must be held restored. This argument did not find favour‑ with their Lordships who held :‑ "In this case the order under the Defence of India Act provides a special Tribunal for a certain offence and recourse must be had to that Tribunal, and to no other, for so long as the order remains in force. The appellants fall within the purview of the order and their conviction by the District Magistrate conravenes that order."

22. After giving the anxious thoughts to the arguments advanced by the counsel for the parties and the rule laid down in the above cited judgment, I am of the opinion that the ratio of the judgment in Habib Jalib's case instead of supporting the contention of the learned counsel for applicant goes against him because their Lordships have clearly followed the above cited judgment where it was held that when the Government validly refers a case for adjudication to a Special Tribunal for trial of particular person for particular offence under the Defence of Pakistan Act, trial must be held by the Tribunal. It may be noted that ire Samila case even the Special Tribunal stood dissolved yet the High Court had quashed the order of the learned Judge for the jurisdiction of the ordinary Courts was ousted under the Criminal Procedure Code and that is why in Habib Jalib case it was held that the learned Sessions Judge had no jurisdiction to grant the bail to the applicant whose bail was therefore cancelled by the High Court.

23. In the present case not only the Sind Special Tribunal has taken the cognizance of the case under the Defence of Pakistan Ordinance but a bail application moved by the applicant remains to be decided by the Tribunal. Unless the very constitution of the Tribunal is held to be invalid, which question has not been argued before me, this Court has no jurisdiction under section 498, Cr. P. C. Therefore, I am of the opinion that no interpretation of the Habib Jalib case can: be made other than that this Court has no jurisdiction to grant bail in the matter for which Special Tribunal has been appointed and which has taken she cognizance of the case. The observations of their Lordships in the last paragraph No. 9 of the judgment tend to refer to wider powers of this Court on the constitutional side, but it does not mean, that it can: be interpreted that this Court has powers under the Cr. P. C. The observations in last para. in my opinion are in the nature of obiter dicta.

24. For the reason given above I hold that the powers under the Cr. P. C. including the powers of grant of balls are not to be exercised particularly so when two similar bail applications of the applicant one before the Sind Special Tribunal and the other before a Division Bench are pending decision.

25. The result is that this bail application in my opinion is misconceived which is hereby rejected. K. B. A. Petition dismissed.