P L D 1977 Lahore 1414 (PLP)

7. It the proviso in question is construed in its proper setting it will be noticed that there is no special significance attached to the expression upon which the learned Assistant Advocate‑General has rested his objection. It is to be noticed that the Laws (Continuance in Force) Order, 1977 was preceded by a pre clamation of the Chit f Martial Law Administrator, whereby the Constitution was placed under abeyance. Although clause (t) of paragraph 2 of the Order stated that notwithstanding the abeyance of the provisions of the Constitution of Pakistan would be governed as nearly as possible in accordance with the Constitution it did not have the effect of re-animating the Constitution itself. Clause (2) of paragraph 2 of the Order no doubt restored the powers and jurisdiction of the High Courts to the Fame level as they possessed in the preproclamation period but after the proclamation any order which a High Court was formerly competent to make under Article 199 could be termed only as one in the nature of an order under Article 199, for, then this Article alongwith the feat of the Constitution stood suspended. Therefore, when the proviso stated that the High Court would not be competent to make any order in the nature of an order under Article 199 it did not necessarily imply that it was intended to curtail those powers and jurisdiction of the High Court as well which were not ~ specifically referable to Article 199.

8. It is also to be noted that Article 199 confers jurisdiction upon the High Court to make orders of diverse nature. To a fairly wide extent this jurisdic tion overlaps the jurisdiction of the ordinary civil Courts. Thus, inter alia under the said Article a High Court can direct a person, as defined in clause (5) thereof, to refrain from doing anything which he is not permitted by law to do or to do anything which be is required by law to do. Now this jurisdiction is possessed by the ordinary civil Court too. In fact thousands of suits are at present pending in the ordinary civil Courts, seeking mandatory or prohibitory Injunctions against public authorities. Similarly a fairly sizable number of appeals and revisions are pending in the High Court calling in question the decision of these Courts. It is to be observed that the proviso upon which the learned Assistant Advocate‑General relies ousts the jurisdiction of the superior Courts alone; it does not affect the jurisdiction of the ordinary civil Courts. If the learned Assistant Advocate- General is right in saying that the proviso precludes the High Court from making any order which may partake the nature of an order under Article 199, irrespective of the source of its jurisdiction, then we will be led to the absured position that whereas the jurisdiction of the subordinate C Courts remains in tact that of the superior Courts has been taken away. Such a situation can be avoided only if the scope of the proviso is strictly confined to the constitutional jurisdiction of the High Court under Article 199.

9. For the reasons stated above I am of the view that the proviso in question only took away the powers of the High Court under Article 199 and that it did not affect the other powers and jurisdiction available to it under diverse provisions of the Constitution and sub‑constitutional l legislation.

10. As already stated the learned counsel for the petitioner made a prayer that this petition should be treated as one under Article 203 of the Constitution and, or in the alternative, under section 491 of the Code of Criminal Procedure. So far as Article 203 is concerned the submission of the learned counsel was that in pursuance of its provisions the High Court could interfere with the judicial orders of the subordinate Courts as well. In support of his submission he referred to some decided cases. For the disposal of this petition it is unnecessary for me to undertake a study of the precise scope of Article 203 for I think adequate relief can be granted to the petitioner under section 491 of the Code of Criminal Procedure. The relevant portion of subsection (1) of this section reads as follows.‑ (1) My High Court may, whenever it thinks fit, direct : (b) that a pert on illegally or improperly detained in public or private custody within such limits (that is, within the limits of Its appellate criminal jurisdiction) be set at liberty." The learned Assistant Advocate‑General contended that section 491 could not be invoked in the case of a person who was being tried by a Special Tribunal set up under the Defence of Pakistan Ordinance. In support of his objection he referred to subsection (1) of section 13‑A of the Defence of of Pakistan Ordinance as introduced by the Defence of Pakistan (Third Amendment) Act, 1976. This subsection reads as follows :- "Save as provided in section 13, and notwithstanding the provision of the Code, or of any other law for the time being in force or of anything having the force of low by whatever authority made of done, or any judgment of any Court, there shall be no appeal from any order of a Special Tribunal, and no Court shall have authority to revise any order of a Special Tribunal, and no Court shall have authority to revise any order or sentence of the Special Tribunal or to transfer any case from a Special Tribunal, or to order the suspension of execution of sentence or release on bail or on own bond under section 426, 435, 439, 491, 497, 498 or 561‑A of the Code or any other provision of law, of any person against whom a case exclusively triable by a Special Tribunal is registered at a police station, or who is being tried, or has been convicted, by a Special Tribunal, or have any jurisdiction of any kind is respect of any proceedings of a Special Tribunal. Explanation ‑Proceedings' includes all final or interim orders passed by the Special Tribunal in relation to a case exclusively triable by it whether before or after the Special Tribunal has taken cogniz ance." A careful perusal of this subsection will show that there is no wholesale exclusion of the provisions of section 491 in respect of a person against whom a case exclusively triable by a Special Tribunal has been registered but that the jurisdiction of the High Court has been taken away only in respect of certain specified matters. Thus, this subsection prevents a High Court from‑ (i) revising any order or sentence of a Special Tribunal, or (ii) transferring any case from a Special Tribunal, or (iii) suspending the execution of any sentence imposed by a Special Tribunal, or (iv) releasing a person on bail or on his own bond, or (v) exercising jurisdiction of any kind in respect of any proceedings of a Special Tribunal. The petitioner before me seeks none of these reliefs nor is she in any way challenging the proceedings before the Special Tribunal. Her case is that there Is at present no valid order of the Special Tribunal authorising the detention of her husband in custody and as such his detention is illegal. The subsection in question does not in terms prevent the High Court from examining this plea and setting the detenu at liberty if it is found that the Special Tribunal has not authorised his detention during the pendency of the trial.

11. Before I consider this petition on merits it will be of advantage to examine the nature of the Special Tribunal set up under the Defence of Pakistan Ordinance. Section 8(1) of the Ordinance states that the Central Government may for the whole or any part of Pakistan constitute a Special Tribunal consisting of three members appointed by the Central Government. Subsection (2) lays down the qualifications of the persona who may be appointed as members of a Special Tribunal. Section 10(6) states that in the event of any difference of opinion among the members of Special Tribunal the opinion of the majority shall prevail. Subsection (7) of the same section empowers the Central Government to make rules for procedure to be adopted in the event of any member of the Special Tribunal being prevented from attending throughout the trial of an accused person.

12. A careful study of sections 8, 9 and 10 indicates that the Special Tribunal as envisaged by the Ordinance is a three‑man Tribunal, or in other words, no member sitting singly or two members sitting together can constitute the Tribunal. Of course, by virtue of section 10(7) the Central Government can make appropriate provision to cater for an eventuality when one member may be prevented from attending throughout the trial o any accused persons but that is an exception and then this exception applies only where one member does not attend a particular trial at all. Barring this eventuality the three members jointly constitute the Special Tribunal. It follows therefrom that the powers and jurisdiction of the Special Tribunal can be exercised only when all the three members act jointly. Section 10(6) no doubt provides that in the event of difference of opinion among the members, the opinion of the majority shall prevail, but this does not mean that any two members can take a decision without taking into consideration the opinion of the third member. The words used in the section ere "difference of opinion among the members". Since it is a three‑member Tribunal all the questions arising for decision are to be considered by all the three members for it is very possible that the opinion of any one of these members may be adopted by the others in preference to that of their own. Sub section (6) comes into play only when there is difference of opinion among them.

13. Apart from that there is a general principle of law that when a judicial function is entrusted by statute to a body consisting of certain individuals to be ascertained or appointed in a prescribed manner then in the absence of express provision or necessary implication that function must be performed by all those individuals collectively and that it cannot be delegated to tome only of that number. Reference in this context is invited to Howard v. Borneman (1974) 1 W L R 15 .

14. The position of a Special Tribunal can be compared with that of benches of Magistrates set up under section 15 of the Code of Criminal Procedure. Here, too, it is the bench as a whole which constitutes the Court and not the individual members thereof. In Behrampore Municipality v. Adam Hajee Ahmad A I R 1943 Pat. 381 a bench of three Magistrates was constituted to try a case relating to adulteration of food. In the final decision which' was one of acquittal only two Magistrates participated, Harries. C. J. set aside that decision with the observations that : ". . . before any order convicting or acquitting the accused could be properly passed all the three Magistrates would have to discuss the matter and arrive at their conclusion. It might be that by a majority they could convict or acquit, but a discussion between all the three is essential before any valid order could be passed. " In Sultan v. Shamsher A I R 1922 Oudh 21 it was held that the object of constituting a Bench was that the Magistrates concerned should individually and collectively give their attention and apply their mind to the hearing of the evidence and the determination of points at issue and arrive at an independent judgment in regard to the merits of the charge. Similarly in Chiteshwar Dube v. Emperor A I R 1932 All. 147 Naimatullah, J., observed that individual Magistrate constitu ting a Bench had no jurisdiction to hear a case cognizable by the whole Bench.

15. The basic rule with regard to the trial of a criminal case is that it should be held continuously at one stretch. However, section 344 of the Code of Criminal Procedure, which is applicable to a Special Tribunal by virtue of section 10(1) of the Defence of Pakistan Ordinance, provides an exception to this rule. It reads as follows : "(1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. (2) Every order made under this section by a Court other than a High Court shall be in writing signed by the presiding Judge or Magistrate. Explanation.‑If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand." A perusal of this section will indicate that whenever a question with regard to the departure from the basic rule arises a Court has to consider two things; first whether there is sufficient‑ reason for postponing or adjourning tie trial] and if it finds that sufficient reason does exist then, second, whether the accused should be remanded to custody. Both these matters separately require an application of mind on the part of the Court. The mere fact that the Court has found sufficient reason far adjourning or postponing a trial does not mean that the order with regard to remand of the accused person to custody must mechanically follow, The matter of remand has to be separately considered by the Court. Of course where the bail application of an accused person has been rejected by the Court it need not given reasons for directing remand to custody every time it passes an older of this nature but this does not absolve the Court of the responsibility of giving serious thought to the matter, particularly in view of the fact that in our country the law leans towards the liberty of a citizen.

16. The main grievance of Begum Shaheen Ramay in this petition is that the Special Tribunal has never given any thought to the question of remand and that her husband is being kept in custody in pursuance of orders which cannot be described to be those of the Special Tribunal. To examine this contention I summoned the record of the Special Tribunal as well as the warrants authorising the detention of the detenu in custody. It appears that the detenu was formally arrested in the case registered under F. I. R. No. 42 of 1976 on 23‑7‑

76. The complete challan against him was submitted to the Special Tribunal on 15‑i0‑

76. The Special Tribunal framed the charge on 17‑10‑1976. There are 43 orders on the order‑sheet. Of these 27 have been signed by all the three members of the Special Tribunal, 14 ‑ by two members and 2 by one member alone. There is no explanation on the order‑sheet with regard to the adjournment of the trial from 2‑9‑76 to 2‑10‑76 and then from 8‑4‑77 to 2‑6‑

77. None was even furnished by the learned Assistant Advocate‑General. Although the order sheet is replete with adjournment orders, yet with the possible exception of the orders made on 27‑10‑76, 10‑11‑76, 4‑2‑77 and 9‑2‑77, there is no order of the Special Tribunal directing that the detenu should be remanded to custody. In the circumstances the grievance of the petitioner that the Special Tribunal had failed to consider the question of remand does not appear to he without substance.

17. So far as the warrants issued by the Special Tribunal to the Jail authorities are concerned these were, except for one, invariably signed only by one member of the Special ‑Tribunal. The exceptional order which is In fact the last one was signed by the two members. The order‑sheet of the relevant date indicates that on that day, all the three members of the Special Tribunal were present. The learned Assistant Advocate‑General was unable to offer any plausible reason why the third member had not signed the order of remand. It is to be noticed that section 344(2) of the Code of Criminal Procedure requires that all orders made under that section should be signed by the presiding Judge or the Magistrate. As already pointed out the powers of the Special Tribunal vested in the Tribunal as a whole and not in any individual member thereof. Even assuming that it could be legally done, It was not the case of the learned Assistant Advocate General that in the matter of ordering remand the Special Tribunal had delegated its functions to one of its constituent members. Here thus is a case where there were no specific orders of the Special Tribunal directing the remand of the detenu in custody and the warrants sent to the Jail authorities were signed only by one or two members who by themselves did not constitute the Special Tribunal. In the circumstances I am inclined to agree with the petitioner that there is no valid order directing the detention of the detenu in custody during the pendency of his trial. .

18. It was for the above reasons that I directed that the detenu should be set at liberty. S. A. H. Petition accepted.