P L D 1974 Karachi 29 (PLP)

Under section g14 despite the establishment of the Special Tribunal, the jurisdiction of the Ordinary Courts has been saved.

7. A perusal of the above provisions of the Defence of Pakistan Ordinance, would show that offences under the Rules are triable by the Ordinary Courts but the Federal Government could direct any case to be tried by a Special Tribunal and similarly any case under any other law punishable with death, transportation for life or imprisonment exceeding 7 years, may in like manner be tried by the Special Tribunal. In order to divest the ordinary Courts of their jurisdiction the Central Government needs to pass a general or a special order. Once such an order is passed, the last contact of the case with the Ordinary Courts is broken and thereafter it is the Special Tribunal only that has the seisin of the case. The Special Tribunal has its own procedure and Rules also make a provision in regard to the grant of bail. Rule 210 is designed to exclude the application of Criminal Procedure Code in so far as the case may fall under rule 42/49 and at this stage I may state that infringement of rule 42 has been notified for the purposes of rule 210 (b). The emphasis however, is on the opening words of rule 210 which read as under: "Notwithstanding anything contained in the Code . . . ."

8. In the legislative history of Pakistan we are not unfamiliar with the setting up of Special Courts and Tribunals. To quote only a few instances reference may be made to Pakistan Criminal Law Amendment Act, 1958, West Pakistan Criminal Law Amendment Act, 1963, Frontier Crimes Regulations, Special Provisions Ordinance as applicable in the Province of Baluchistan etc., etc. In such cases where a Special Court or Tribunal is established for the purpose of dealing with that case either person‑wise or case‑wise attention is at once attracted to provisions of section 5 of the Code of Criminal Procedure. Section 5, Cr. P. C. reads as follows: -- "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 lava shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." In subsection (1) the words used are, investigation, inquiry, trial and otherwise dealing with the cases." This section in my humble view is designed to provide for exclusion of jurisdiction under the Code of Criminal Procedure in cases under special laws and in all such cases where special laws make corresponding or parallel provisions in regard to such field provisions contained in the Criminal Procedure Code do not apply. It is needless to say that exclusion of general jurisdiction of a Court can always be obtained by establishment of a Court or Tribunal of limited jurisdiction within a limited field and if within that limited field a clear and operative jurisdiction is created in the Statute, intending exclusion) of general jurisdiction the provisions of the Statute of limited jurisdiction will prevail. In other words, if adequate machinery is provided by the Statute of limited jurisdiction in derogation of the general Statute such special machinery will prevail over the general one. The language of 9 section 5 of the Criminal Procedure Code is clear in that respect and i1 can possibly see no way to interpret it in any other manner.

9. The question that then directly arises is whether the Defence of Pakistan Ordinance or Rules create such alternate machinery, and for that matter, whether the provisions of Ordinance which have been mentioned by me in the earlier part of this order are a clear and sufficient guide. It will be seen that the creation of a Special Tribunal is in complete derogation of the Code of Criminal Procedure, as such Tribunal has its own procedure and even the Rules lay down independent norms and principles for grant of bail. In fact Rule 210 clearly excludes the application of the Code of Criminal Procedure. Mr. Khalid Ishaque the learned counsel has attempted to argue that the ouster of the jurisdiction of the High Court cannot be lightly inferred and since the Ordinance or Rules do not clearly express such ouster, the general law will continue to apply. In my view such argument in circumstances is incorrect can only be accepted if the scheme of the Defence of Pakistan Ordinance or the Rules is overlooked. In such a situation the terms of section 13 of the Defence of Pakistan Ordinance clearly state that no Court shall "have any jurisdiction of any kind in respect of any proceeding of a Special Tribunal." On the attention of the learned Advocate being invited to such words of wide import he attempted to argue that these provisions come into operation only when an appeal is fled. No doubt, the heading to section 13 speaks of appeals but when section 13 is read as a whole, it would be very clear that the bar of jurisdiction is total and complete and ensures throughout the proceedings before the Tribunal. The mention of section 526 clearly indicates that the provision applies even to the stage of trial. Mr. Khalid Ishaque and the learned Assistant Advocate‑General have both relied on a Full Bench Judgment of the erstwhile West Pakistan High Court in the case of State v. Habib Jalib (P L D 1967 Lah. 1297). In this case Habib Jalib was sent up to stand trial before the Special Tribunal constituted under the Defence of Pakistan Ordinance, 1965. I am referring to this case because the provisions of the Defence of Pakistan Ordinance, 1965 are parallel and had all resemblance with the provisions of the present Ordinance. While the case was pending before the Tribunal an Additional Sessions Judge of Lahore admitted Habib Jalib to bail. A revision applica tion was filed in the High Court and this application was allowed with the result that the bail granted by the Additional Sessions Judge was cancelled. The learned Judges held that when Jurisdiction vested exclusively in the Special Tribunal it must necessarily follow that no other Court could deal with the matter including the bail application. The learned Judges had for the purposes of coming to such conclusion relied on the case of Smaila v. Emperor (A I R 1917 Lah. 138) and on the case of In re: Bhuvaraha lyengar (A I R 1942 Mad. 221). The learned Judges followed the reasoning in these two cases and held that bail granted by the Additional Sessions Judge which was and must be in exercise of powers under section 498, Cr. P. C. was by an illegal order. However, in para. 9 of the Judgment the learned Judges of the Full Bench expressed as follows: "Before parting with the case we would like to make it clear that the jurisdiction of the High Court in the matter has, in no way, been whittled down except for the considerations laid down in rule 206 of the Defence of Pakistan Rules." Mr. Khalid Ishaque the learned Advocate for the petitioners has heavily relied on these observations in the Full Bench Judgment. I am clearly of the view that these observations apart from same being in the nature of obiter make no reference to section 498, Cr. P. C. The High Court does have the power to suspend any order of detention or of release of a person in custody in exercise of powers under the Constitution and although para. 9 of the Judgment makes no reference to such powers I am left in no doubt that the learned Judges had in mind the powers which could be exercised in constitutional jurisdiction. Even otherwise that is the only interpretation, which could possibly reconcile para. 9 of this Judgment that what has preceded. I need hardly state that under section 498, Cr. P. C. the power to grant bail vests both in the Court of Session and the High Court. If the learned Judges of the Full Bench had held that the Sessions Courts have no power to grant bail it is incomprehensible that they may mean to state that such a bar does not exist in the case of the High Court. This case therefore is of a very little assistance to the petitioners and on the contrary helps the Assistant Advocate‑General.

10. The learned Advocate for the petitioners has placed before me several orders passed by this High Court whereby even such persons who were facing trial before the Special Tribunal had been released on bail. In that context I may initially say that my learned brother Mir Khuda Bakhsh Marri, J. had in the case of Illahi Bux Soomro dealt with a question of jurisdiction of the High Court in the matter of grant of bail under section 498, Cr. P. C. in cases pending before the Special Tribunal. This bail application which was numbered as Criminal Bail Application No. 266 of 1973 was rejected by my learned brother on the ground of lack of jurisdiction. I was informed at the Bar that an appeal has been filed against the order of my learned brother and Leave has been granted by the Supreme Court vide P. S. L. A. No. K‑45 of 1973. On that premises the learned Advocate has stated that the matter being sub judice in the Supreme Court I should not follow that judgment. No doubt the matter re‑opens in the Supreme Court as soon as the appeal is entertained. In that context I would like to make it clear that a Single Bench decision of my learned brother is not binding on me but I can certainly take note of it till such time that the judgment is set aside and when their Lordships of the Supreme Court do so decide I will of course loyally and obediently follow such judgment of the Supreme Court. On the other hand I am not prepared to assume that simply because leave has been granted against a judgment that judgment ceases to be good or necessarily wrong. We will accept the law as laid down by the Supreme Court but until such law is laid down the mere grant of leave will not preclude me from referring to such judgment and even following it to some extent or even adopting the reasons on which the judgment of my learned brother is based. Mr. Khalid Ishaque has not placed any case‑law before me to support the contention that the order granting leave can be considered to be a precedent or has such force in law as is referred to in Article 189 of the Constitution of Pakistan. If a question of law had been decided or a principle of law had been initiated by the Supreme Court I would in all obedience have followed it. But the leave order, as a leave order generally is, only records the contentions of the petitioner without giving any finding, which finding will of course follow only after the Supreme Court decides the appeal. One of the contentions was inapplicability of rule 48/49 to cases in the nature of industrial dispute. The present order granting leave cannot even be considered to be an expression of tentative opinion. On the other hand the judgment in the case of Habib Jalib being a judgment of a Full Bench of the Predecessor Court, demands all respect, though it may not have binding force. This judgment has already been referred to and considered by me. The learned Advocate has also placed before me an order of my learned brother Agha Ali Hyder, J. in Criminal Bail Application No. 397 of 1973. My learned brother bad granted bail although the judgment of Marri, J. was brought to his notice. My learned brother was of the view that since the Supreme Court had granted leave and also admitted the petitioner to bail, the judgment of Marri, J. could not, or in any case, may not be followed. I do state that the judgment of Marri, J. is not binding on me but on consideration of two different judgments passed by my two learned brothers I can act within the scope of preferring one judgment to the other. For the reasons given in the judgment of Marri, J., and the views I have formulated, I prefer to follow that judgment. More so as the order of Agha Ali Hyder, J. makes no specific reference to the words contained in the last clause of section 13 of the Ordinance.

11. In my view there is a sizable amount of case‑law of the superior Courts of this country in this regard. While the case of Habib Jalib was directly in connection with the Defence of Pakistan Ordinance and Rules other cases arose in proceedings either under the Frontier Crimes Regulations or the West Pakistan Criminal Law Amendment Act, 1963. In both these later enactments the law contemplates the establishment of Special Tribunals, following their own procedure. Even in such cases the Special Laws are designed to oust the jurisdiction of the ordinary Courts and confer the same on Sp3cial Tribunals. In all these cases the test laid down is whether as a consequence of the reference the case was taken outside the ordinary judicial field. The ratio is, that once a case is competently withdrawn from the general system of the Code of Criminal Procedure and validly remitted to the Court or Tribunal of Special jurisdiction, the contact of the Courts of G general jurisdiction with the said case ceases; in such cases the special Court or Special Tribunal is no longer under the control or supervision] of the Court of general jurisdiction by virtue of powers under the Code off Criminal Procedure. In the case of Muhammad v. The State (P L D 1963 S C 373) Cornelius,! C. J. expressed as follows: --‑ "In these circumstances, it should be obvious that for the superior Courts to interfere, whether by approval or otherwise, with the operation of the system in any case, once a case is competently drawn into the system, would be a violation of the Legislative intention." Again in the case of Mahmood Beg v. Commissioner of Multan (P L D 1966 S C 701) interference by the High Court was sought in matters which were pending before a Tribunal constituted under the West Pakistan Criminal Law Amendment Act, 1963. It seems a bail application had been made in the High Court which had been refused, and in the Supreme Court S. A. Rahman, J. while dealing with the question declined to grant bail and observed that :‑ "It has been found that the matter has been taken outside the strictly judicial field and now rests in another jurisdiction." In that context the reported judgments in the case of Abdul Ghani v. Subedar Shoedar Khan (P L D 1964 Lah. 612) and Muhammad Khan v. Additional Commissioner, F. C. R. (P L D 1964 Lah. 401) and numerous other cases could be referred to. Although these cases related to exercise of powers in constitutional field the principle that has been established is that when a case is completely and validly withdrawn from the normal judicial field to a special sphere any point of contact of the general Court with the said case shall cease. This precisely is the position even in the present case more so because a special bar has been imposed by section 13 of the Defence of Pakistan Ordinance.

12. The next contention of Mr. Khalid Ishaque is that a bail application is competent in spite of the main proceedings pending before the Special Tribunal. He contends that in spite of the case pending in the Court of limited jurisdiction the powers of High Court under section 498, Cr. P. C. are very broad. When I asked him if the words "proceedings of a Special Tribunal" in the last clause of section 13(1) of the Ordinance would not include proceedings even for the grant of bail, the learned counsel stated that the proceedings in the main case and proceedings for obtaining bail are entirely different. He stated that in spite of the proceedings pending in lower Courts, the High Court can grant bail under section 498, Cr. P. C. Such argument is entirely misconceived because the lower Courts which would include the Court of Session and Magistrate are not Courts set up for exercise of special jurisdiction. These Courts function under the general law and for that reason the High Court can exercise jurisdiction under section 498, Cr. P. C. The law relating to bail is for making of provisions in regard to custody of persons facing the proceedings. It is an ancillary and necessary power conferred on a Court or Tribunal to make measures for ensuring the presence of an accused person. It is therefore, completely interlinked with trials.

13. As stated above Mr. Khalid Ishaque initially did not challenge the reference but on the last day of hearing he raised a point that the reference was invalid as no notice has been given to the accused before making a reference. First of all no notice is necessary because the Ordinance does not require it. Moreover, it is very well established that no person has a vested right in the choice of forum. The position even in the West Pakistan Criminal Law Amendment Act is somewhat similar and a similar objection was raised before a Division Bench of the Lahore High Court in the case of Manzoor Ahmed v. Commissioner of Lahore Division (P L D 1964 Lah. 194) Yaqub Ali, J. (now a Judge of the Supreme Court) while repelling such contentions observed that "in the absence of a provision in the Statute in regard to a right of hearing before transfer of a case to a Court of special jurisdiction no such right could be claimed on the basis of any general principle or law for the accused has no vested right in the procedure to be followed for determining the question of his innocence or guilt." There are various other cases on the same point and to my mind such objection has no substance. In the same context Mr. Khalid Ishaque has also attempted to attack the order of reference on the ground of the names of the accused persons not having been mentioned in the order of reference. This objection is equally untenable as the Federal Government has power of directing the transfer of any case and not the case of any particular person to the Special Tribunal and the order of reference clearly states that the offence registered under the First Information Report in question shall be tried by the Special Tribunal.

14. During the hearing of these cases I was informed by the Learned Advocates that some out of these bail applications were filed before 29th August 1973, which is the date on which the reference for trial by a Special Tribunal was made. In my view this circumstance cannot confer jurisdiction on the High Court when otherwise the High Court has no jurisdiction. In any case I was also informed that an application has been made by the petitioners before the Special Tribunal and the same is pending and the petitioner has in fact been released. This is all the more reason for declining exercise of jurisdiction under section 498, Cr. P. C. even if such jurisdiction did exist.

15. In the result these bail applications are dismissed. S. G. D./S. A. H. Application dismissed.