P L D 1968 Lahore 1266 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑

Gahena, petitioner is being detained under subsection (2) of section 8 of tile West Pakistan Control of Goondas Ordinance (XXXV of 1959) (hereinafter referred as the Ordinance). He has moved this application under section 498 of the Code of Criminal Procedure for being admitted to bail.

2. Mr. Munawar Akhtar, learned counsel appearing on behalf of the petitioner, in support of his contention that it is competent for this Court to entertain the bail application and make an order thereon, relied on Muhammad Aslam v. State (P L D 1967 Lah. 810) where it was observed as follows:‑ "

4. Section 498, Cr. P. C. which applies to Courts of Session and the High Court is more general in its scope end empowers such Court `in any case' `where there be an appeal on conviction or not' to direct that any person be admitted to bail. The words `in any case' are very comprehensive and would certainly cover a case where the proceedings in tire nature of prevention of offences are contemplated. The Legislature has obviously intended to confer upon this Court and a Court of Session very wide powers to admit to bail a person who is lodged in jail as an accused or otherwise.

5. To my mints the provisions of section 8 of the Ordinance do not affect the jurisdiction of the High Court under section 498 of the Code. As observed already, the power of the High Court under section 498, Cr. P. C. cannot be taken away by implication. Furthermore, section 498 is not referred to in section 8 or in any other provision of the Ordinance and prima facie the provisions of the former are left in tact. In the circumstances, I hold that it is open to this Court to exercise power under section 498 of the Code."

3. Learned Advocate‑General, however, in aid of his argument that an application under section 498 of the Code of Criminal Procedure for bail under the Ordinance is not competent, relied on Allauddin v. State (1968 P Cr. L J 92) where a different view teas expressed in the following terms: "I would begin by emphasising the fact that the present applicants who are now facing proceedings under section 6 of the Karachi Control of Disorderly Persons Act, 1952, are not accused persons and that they are not being charged with the commission of any offence as such. The present pro ceedings against them are in the nature a of a `preventive action' the underlying object of which is to ensure that these applicants will not commit any offence or offences: and not to punish them for having committed any offence. Therefore, these applicants not being accused persons charged with the commission of any offence cannot lay claim to the provisions of section 496, 497 or 498 of the Code of Criminal Procedure or apply for bail under any of these three sections. It would follow then that these three sections 496, 497 and 498 are entirely outside the purview of the Karachi Control of Disorderly Persons Act, 1952 and that therefore proceedings under this Act are not controlled by any one of thee three sections." Since there was divergence of opinion as to the competence of this Court to admit a person to bail who is detained under section 8 of the Ordinance, it was considered necessary to have the matter resolved by a Division Bench.

4. The Ordinance is a special and a local law. It was enacted with a view to control the disorderly persons commonly known as goondas in the Province of West Pakistan. Since the question to be examined is whether the High Court has power under section 498, Cr. P. C. the relevant provisions contained in the Ordinance, i.e., sections 6 and 8 are reproducers hereunder:‑-- "

6. On receipt of information under section 5, the Tribunal may summon the person complained against to appear before it, and shall, as soon as he appears before it, supply him with a copy of the information laid against him: Provided that the Tribunal may, for reasons to be recorded in the very first instance or at any later stage of the inquiry, instead of issuing summons, issue a warrant, non‑bailable or bailable, in such sum as may appear to it reasonable, for tire arrest of the aforesaid person and his production before the Tribunal‑- (i) if it is satisfied that the said person is hiding himself to evade service of the summons, or (ii) if he does not appear in spite of the service of tire summons, or (iii) if it is, for any other reason, satisfied that such action is necessary." "8, (1) The Tribunal may, when the person complained against appears before it, take from him a bond, with or without sureties, for his appearance during the inquiry or when called upon, as the case may be, and may also, having regard to the nature of the information laid against bin:, require him to furnish a bond, with one or more sureties, sir such sum as the Tribunal tray think fit, to be of good behaviour until the conclusion of the inquiry and may direct that he be detained in custody until such bond is executed, or in default of execution, until the inquiry is concluded. (2) The Tribunal may, for reasons to be recorded, instead of taking a bond for the appearance of the person complained against, order his detention till the conclusion of the inquiry in such prison as it thinks suitable: Provided that such detention shall not exceed two month; unless his case has been referred to the Commissioner and the latter has agreed to such detention." It would appear that section 6 deals with the situation prior to the appearance of a person before the Tribunal. The Tribunal may, instead of issuing a notice to the person complained against, issue a warrant, non‑bailable or bailable, on any of tire grounds mentioned in section

6. Once the person appears before the Tribunal, further proceedings are taken by it under section

8. Subsection (1) of section 8 contemplates two situations, namely (a) where the Tribunal may require a bored from a person for leis appearance and (b) where it may require the bond from him for maintaining good behaviour. In case he fails, to furnish the bond, the Tribunal can order his detention. Subsection (2) empowers the Tribunal to order detention of a persona instead of ordering him to be released on bail on his furnishing security with or without sureties. Any person aggrieved by an order of the Tribunal demanding bond from him under subsection (1) or ordering his detention under subsection (2) of section 8, has beets given a right of appeal under section 18 of the Ordinance to the Commissioner of the Division in which the Tribunal exercises its jurisdiction.

5. Section 497 of the Code of Criminal Procedure deals with the power of the Court to order release on bond of persons accused of non‑bailable offences. Proceedings under the Ordinance except proceedings taken under section 22 for an hence created under section 21 of the Ordinance, being not in respect of any offence, section 497, Cr. P. C. is not applicable. Under section 498, the Sessions Judge or the High Court can admit "any person" to bail "in any case." The emphasis is laid by the learned counsel for the petitioner on the words "in any case" and "any person" to contend that they are comprehensive enough to apply also to persons being proceeded against under any special or local law. The words "in any case" used in section 498, Cr. P. C. are applicable to a case to which the Code of Criminal Procedure is applicable, and obviously if a case is beyond the scope arid purview of the Code, to that section 498 would not be attracted. In subsection (2) of section 1 of the Code, it is provided that the Code "extends to all the Provinces of Pakistan; but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." The words "in the absence of any specific provision to the contrary" in section 1 (2) mean and contemplate a provision specific in affecting the special or local law. III means that there may be a specific provision in the special or local law that the Cr. P. Code will apply to the proceedings under the Act. If it is not so provided, Cr. P. Code will not apply, unless it can be said that there is a specific provision in the Code itself saying that it shall apply to the special or local law. Thus, in order that Cr. P. Code should be made applicable to the proceedings of a special/local law, it is necessary that there should be either a provision in that law specifically saying so, or that there should be specific mention in the Cr. P. Code, that it shall apply to the proceedings of such a law. In section 5, Criminal Procedure Code, it is provided:‑- "5.‑(1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences, under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time teeing in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences." Section 1(2) and section 5(2) are to be read together. According to section 1(2), the Code will not apply to a special or a local law unless there is a specific provision in this behalf. It is contained in section 5(2.) that to all offences under special or local law the procedure for investigation, inquiry or trial, laid down in the Code will apply. If, however, tire special or local law creates offences, and also provides procedure dealing with the offence, the procedure so provided has to be observed and not the procedure in the Criminal Procedure Code. The position which emerges is (a) that all the offences under the Penal Code are to be investigated, inquired into, and tried in accordance with the procedure in the Criminal Procedure Code; (b) that an offence under a special or local law is likewise to be investigated inquired into and tried in accordance with the procedure given in Cr. P. Code unless the special or local law provides for a different procedure and (c) that in respect to all other matters, covered by special or local law, the Cr. P. Coals is not applicable, unless there is a specific provision to that effect. The Ordinance does riot directly create any offence, and being It special and a local law the Code of Criminal Procedure will not he applicable to tire proceedings under it, unless it is shown; that there is a specific provision in the Ordinance or in the Code of Criminal Procedure providing for the application of procedure given in the Code.

6. The Tribunal, by virtue of section 4 of the Ordinance, is deemed to be a Court for the purposes of section 480 of the Code of Criminal Procedure, 1898. Section 480 has therefore, been specifically made applicable to the proceedings under the Ordinance. A‑sin, under section 7, if the Tribunal has reason to believe that a person against whom a warrant of arrest has been issued under section 6, has absconded, or is concealing himself so that the warrant cannot be execrated, it may send a report to a Magistrate having jurisdiction ire the area where the person complained against ordinarily resides or has his property or is present, and the said Magistrate shall take proceedings under sections 87, 88 and 89 of the Code of Criminal Procedure, 1898, in respect of such person and his property as if the warrant were a warrant issued by the said Magistrate. Under section 10, the Tribunal for the purpose; of recording evidence, has to follow the procedure prescribed in the Code of Criminal Procedure, for conducting trials and recording evidence in summons cases subject, of course, to the special provisions of the Ordinance. Under subsection (1) of section 16, the bond to be furnished "shall be in the form prescribed by the Code of Criminal Procedure 1898, for a band of the same description" and under subsection (4) "the provisions of section 514 of the Code of Criminal Procedure, 1898, shall apply in respect of the forfeiture of bonds furnished under" the Ordinance. It is only to this extent that the Code of Criminal Procedure has been made applicable and thus within the meaning of subsection (2) of section 1, the Code will be applicable to the proceedings under the Ordinance only to the extent indicated above. The provisions of section 498, having not bean male specifically applicable. will not be attracted to proceedings under the Ordinance. In. Sher Ali Khan v. State (P L D 1963 Lah, 281), it was held: "The Deputy Commis sioner is competent to grant or refuse bail to the petitioners in exercise of the powers under section 20 of the F. C. R. His order is revisable by the Commissioner. In those circumstances, I consider that the High Court will have no powers to grant bail to an accused person if the case has been referred to the Council‑of‑Elders by the District Magistrate." In Emperor v. Latit Kumar (11 Cr: L J 219), it was held: "The Sessions Judge has no jurisdiction to grant bail to a parson accused of an offence, to the proceedings in respect of which Part I of the Criminal Law Amendment Act, 1908, has been applied by the Local Government." Again, in Imperator v. Ghulam Kadir (12 Cr. L J 568), the observations are "An application for bail on behalf of an accused, who is being tried by a Jirgah, or Council‑of‑Elders, under section 8 of the Regulation of 1892 cannot be made to the High Court under section 498, Criminal Procedure Code." In State v. Habib Jalib (P L D 1967 Lah 1297), it was held by the Full Perch: "Once it is held that the jurisdiction vested exclusively in the Special Tribunal it must necessarily follow that no other Court could deal with the matter including the bail application."

7. Section 23 of the Ordinance also excludes the application of section 499, Cr. P. Code. It provides: "The provisions of this Ordinance, and any order made or action taken under this Ordinance, shall have effect notwithstanding anything inconsistent therewith contained in any enactment, other than this Ordinance, for the time being in force, and in any instrument having effect by virtue of any such enactment other than this Ordinance." There can be no doubt that these words an sweeping enough to override all powers possessed by this Court from whatever source they may have been derived. Thus, by section 23 of the Ordinance, the application of all other laves has been excluded and the Ordinance is to override all the provisions of law to the contrary, The Ordinance is preventive in nature and scope. Just as Pakistan Penal Code is not exhaustive of offences, and does not prevent the creation of additional offences, so also Code of Criminal Procedure is not exhaustive of preventive measures or the procedure to be adopted and does not prevent the creation of other preventive measures and also any additional or separate procedure. There are specific provisions contained for bonds and detention in sections 6 and

8. They, therefore, by virtue of section 23 have effect notwithstanding the provisions contained in the Code of Criminal Procedure, including section

498. Moreover, wherever the Legislature intended to apply the provisions of the Code of Criminal Procedure, it has provided specifically for the purpose.

8. It is next to be examined if section 498, Cr. P. Code applies to a case other than that of an accused person who is charged with the commission of an offence. In Muhammad Aslam v. The State, it was held that the words "in any case" apply also to a preventive; proceedings and the ratio decidendi of the judgment in Allauddin v. The State, is that section 498 being applicable to cases of persons accused of offences, it does not apply to such cases. The learned counsel contended that section 498 was not restrictive in its application to accused persons and points out that in the earlier Code of Criminal Procedure, 1872, the words used in section 390‑a provision like section 498‑ware "the accused person" and they were changed to "any person", and the change in the words was intended to make the provision comprehensive enough to apply to a convicted person and also to one against whom proceedings, which were preventive in nature, are taken. In The Queen v. Thakur Parshad ((1876) I L R 1 All. 151), it was held to apply to a convicted person and in The Emperor v. Alasuria (A I R 1936 All. 107) and Ahmed Ali Sardar v. The Emperor (A I R 1923 Cal. 723) it was held that section 498 was applicable to cases where proceedings under section 107, Cr. I'. Code were taken. It was argued that the proceedings under the West Pakistan Control of Goondas Ordinance, 1959, were preventive in nature, and section 498 being applicable, as it was, to "any case" and to "any person" and being a specific provision within the mean ing of section 1(2), Cr. P. C., can be invoked for the purposes of bail. The contention proceeds on the assumption that section 498, is not restricted in its application to only accused persons. The assumption is mistaken in view of the decision of the Judicial Committee in Jairam Das v. The Emperor (A I R 1945 P C 94). The relevant observations are: "The only granting of bail which is referred to in that Chapter (which consists of sections 496 to 502 inclusive) is the granting of bail to accused persons. There is no reference therein to the granting of bail to persons who have been tried and convicted the Code confers no power on a High Court to grant bail in the case of a convicted person except under section

426. Hence, a High Court in India has no power to grant bail to a person who has been convicted and sentenced to imprisonment, and to whom His Majesty‑in Council has given special leave to appeal against his, conviction or sentence." The judicial precedents relied upon being all prior in time to the decision of the Privy Council have to be real subject to that decision. In Muhammad Ayub v. Muhammad Yakub (P L D 1965 S C 1003) their Lordships of the Supreme Court have approved this view and held : "A consideration of the context in which it occurs would show that section 498 should apply only to accused persons and not to those convicted of au Hence Section 426 of the Code grants power of bail to the appeal the Court, in respect of convicted persons. Subsection (2) of that section expressly enacts that such a power may be exercised by the High Court, in the case of an appeal by a convicted person to a Court subordinate thereto. That section confers no such powers on a Court of Session. The very fact that express conferment of this power in the case of the High Court is mentioned, excludes the existence of a similar power in the case of a Sessions Court. If section 498 is so construed as to include within its scope convicted persons, then its provisions would come into conflict with section 496, so tar as the Court of Session is concerned. Indeed, on such a view, the Court of Session would, under section 498; have power to grant bail to a convicted person, appealing to the High Court. Such a con struction, if possible, should be avoided. Therefore, section 498 should be interpreted with reference to the context in which it occurs and should be held confined to the case of an accused person only. It is to be noticed that this section starts by saying that the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. The 'bond' mentioned herein is obviously one to be executed by an accused person. The context, therefore, shows that the power of bail too under this section should be held limited to the cases of accused persons. The cases of convicts are sufficiently provided for by sections 426 and 435 of the Code and there was no necessity for repeating provisions regarding bail to them in section 498 of the Code." it was further observed: "The contention that the generality of the words 'in any case' or 'any person' occurring in section 498 of the Code should be given full effect and the limitations imposed by section 497 should not be held to govern section 498 of the Code cannot be accepted . . . . . . . section 498 of the Code seems to me to be 'ancillary or subsidiary' to sections 496 and 497 of the Code." The initiation of proceedings under the West Pakistan Control of Goondas Ordinance, 1959, is not an accusation of an offence and the Court has, therefore, no power to act under section 498 of the Code of Criminal Procedure.

9. The petition is not competent. Hence dismissed. S. Q Petition dismissed.