P L D 1967 Lahore 1297 (PLP)

BASHIR‑UD‑DIN AHMAD, J.‑On the 26th of February 1967, Habib Jalib recited a poem in the Y. M. C. A. Hall, Lahore, which was considered to be objectionable and a case under rule 47 of the Defence of Pakistan Rules (hereinafter referred to as the Rules) was registered against him on the 27th of February 1967, on the written report of Ch. Karamatullah, D. S. P./B at Old Anarkali Police Station. Habib Jalib was arrested for the contravention of rule 47 of the Defence of Pakistan Rules framed under section 3 of the Defence of Pakistan Ordinance XXII1 of 1965 (hereinafter referred to as the Ordinance). He applied for bail but the application for bail was rejected by Mr. Muhammad Sarwar Khan, Magistrate 1st Class, Lahore, by his order dated the 3rd of March 1967. Habib Jalib then made an application under section 497, Cr. P. C. to the Sessions Judge, Lahore, for bail. The application was disposed of by Mr. Muhammad Zafarullah, Additional Sessions Judge, Lahore, who by his order dated the 7th of March 1967, admitted Habib Jalib to bail in the sum of Rs.5,000.00 (Rupees five thousand) with one surety in the like amount.

2. The State moved this Court on the revisional side under section 439 read with section 497 (5), Cr. P. C, for cancella tion of bail. Notice was issued to Habib Jalib to show cause why the bail granted to him be not cancelled. The Division Bench which issued' notice considered that in view of the general importance of the question raised the matter be heard by a larger Bench. The papers were laid before the learned Chief Justice and his Lordship constituted the Full Bench to dispose of the matter.

3. The learned Advocate‑General contended that since the objectionable portions of the poem recited by Habib Jalib at a public meeting not 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 a `prejudicial act' as defined by rule 41, sub‑rule (6) punishable under rule 47 with imprisonment which may extend to five years, or with fine or with both and as the case against Habib Jalib under rule 47 was triable by the Special Tribunal constituted under section 8 of the Ordinance, the learned Additional Sessions Judge was not competent to pass the order granting bail to Habib Jalib as the jurisdiction of ordinary Courts was barred.

4. Mr. Mahmud Ali Kasuri, who appeared on behalf of respondent, contended that the jurisdiction of ordinary Courts was not barred and secondly, that the application to the learned Sessions Judge was competent as the Special Tribunal had not been properly constituted at the time when Habib Jalib applied for bail because one of the members of the Special Tribunal constituted by the Central Government had not joined the Tribunal.

5. We now proceed to examine the contention whether the jurisdiction of ordinary Courts is barred under the Ordinance. Section 5 of the Criminal Procedure Code provides that "all offences under the Pakistan Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained". It is laid down in subsection (2) of section 5 that "all offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with accord ing 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,"

6. According to the prosecution the offending portions of the poem fell within the mischief of rule 47 as this very poem was published earlier in the Book called "Sar‑E‑Maqtal" which was proscribed and all copies of the book were forfeited in favour of the Government. We do not propose to reproduce in the order the offending portions of the poem but on reading the poem as a whole we are inclined to hold that the provisions of rules 41 (6) and 47 were attracted, but this shall not be taken as final expression of opinion on merits by this Court. Once it is held that the offending poem contravened the provisions of rule 41 (6) punishable under rule 47 of the Defence of Pakistan Rules, it must necessarily follow that the offence is to be tried under the enactment‑ dealing with such offences which, in the instant case, is the Defence of Pakistan Ordinance. Ordinarily the offence should have been triable by any Court constituted under the Criminal Procedure Code by which such offence is shown in the 8th column of the 2nd Schedule to be triable but the Central Government by issuance of Notification No. S. O. R. 174(R)/66, dated Rawalpindi the 11th of November 1966, directed that the offences under rules 42 to 48 of the Defence of Pakistan Rules, be tried by the Special Tribunal for West Pakistan constituted under section 8 of the said Ordinance. The competency of the Central Government to constitute the Special Tribunal under section 8 of the Ordinance was not challenged and apart from the provisions of section 9 of the said Ordinance there is subsection (1) of section 29 of the Cr. P. Code which runs:‑ "29. (1) Subject to the (other provisions of this Code), any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court." We are, therefore, clear in our mind that the offence with which Habib Jalib is charged became triable by the Special Tribunal and not by the ordinary Courts after Notification No. S. O. R. 174 (R)/66, dated the 11th of November 1966, issued by the Central Government. While section 14 of the Ordinance pro vides that ordinary criminal and civil Courts shall continue to exercise jurisdiction, the Central Government is empowered under section 9 to direct that a Special Tribunal shall try any offence‑ (a) under any rule made under section 3, or (b) punishable with death, transportation or imprisonment for a term which may extend to seven years,‑ triable by any Court having jurisdiction within the local limits of the jurisdiction of the Special Tribunal. The jurisdiction of ordinary Courts was c?early barred to try those offences which the Central Government notified by general or special order to be triable by a Special Tribunal. Mr. Mahmud Ali Kasuri invited our attention to section 14 of the Ordinance and contended that the jurisdiction of the ordinary Criminal Courts had been expressly saved. We do not agree as we have already come to the conclusion that the jurisdiction of ordinary Criminal Courts is barred in a case ordered by the Central Government to be tried by a Special Tribunal. The Central Government by issuing Noti fication No. S. O. R. 174 (R)/66, dated the 11th of November 1966, not only made the offence with which Habib Jalib is charged triable by Special Tribunal but also provided the machinery for trial by constituting a Special Tribunal for the Province of West: Pakistan with its headquarter at Lahore and appointed the Chairman and two Members of the Tribunal vide Notification No. F. 15 (9)/ AI/66, dated the 11th of November 1966. It is thus clear that the jurisdiction of ordinary Criminal Courts was completely ousted in the instant case.

7. Mr. Mahmud Ali Kasuri feebly contended that what was barred was trial by the ordinary Courts in such a case and no the determination of bail application. We do not agree. Once B 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.

8. In desperation, learned counsel for Habib Jalib, con tended that the learned Additional Sessions Judge was competent to order the grant of bail in the absence of a proper Tribunal constituted by the Central Government and in this connection he invited our attention to the circumstance that one of the members had not joined the Tribunal when the application of Habib Jalib came up for consideration by the learned Additional Sessions Judge. The contention is not well‑founded. As soon as the Special Tribunal was constituted the jurisdiction vested in it exclusively including even for the purpose of the decision on] the bail application. A Special Tribunal is competent to 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 con stituting 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 publication of Notification No. S. O. R. 174 (R)/66, dated the 11th of November 1966, the D 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 for the grant of bail applied. Mr. Mahmud Ali Kasuri cited 1945 Nagpur Law Journal (not available) while the learned Advocate‑General relied on Smaila v. Emperor (A I R 1917 Lah. 138) In re: V. Bhuvaraha lyengar (A I R 1942 Mad. 221) and A I R 1965 All.

78. We have gone through the reported cases and on the parity of reasoning in the case Smaila v. Emperor we hold that the learned Additional Sessions Judge was not competent to pass an order on the bail application of Habib Jalib. The order granting bail to the respondent by the E learned Additional Sessions Judge, Lahore, on the 7th of March 1967 suffered from lack of jurisdiction 'and as such a nullity m law. Accordingly, we set it aside. The bail allowed to the respondent is hereby cancelled. The petition is accepted.

9. 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. A. H. Petition accepted.