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Criminal Miscellaneous No. 447 of 1967, decided on 8th March 1967.
‑Jurisdiction of Court‑Ouster of, must not be readily inferred‑Exclusion must be explicit or clearly implied.
S. 498‑Expression "High Court or Court of Session may, in any case . . . . direct that any person be admitted to bail"‑Words "in any case"‑Very comprehensive and cover cases of proceedings "in nature of pre vention of offences" and of persons termed "accused" or other wise.
Ss. 5, 6, 8, 14 & 19 read with Criminal Procedure Code (V of 1898), S. 498‑Persons proceeded against under West Pakistan Control of Goondas Ordinance, 1959‑Not "accused" unless convicted under clauses (d) & (e) of subsection (1) of S. 14 of Ordinance‑Despite specific provisions contained in Ss. 6 & 8 of Ordinance High Court competent to grant bail under S. 498, Cr. P. C.‑Bail before arrest granted by High Court to person against whom non‑bailable warrant had been issued under S. 6, West Pakistan Control of Goondas Ordinance, 1959.
Jari Ullah Khan for Petitioner.
Niaz Ahmad Siddiqi for A.‑G. for the State.
Date of hearing: 2nd March 1967.
This is an application for bail before arrest under section 498, Cr. P. C. on behalf of Muhammad Aslam, a businessman of Lyallpur, against whom non‑bailable warrant under section 6 of West Pakistan Control of Goondas Ordinance, 1959, (hereinafter referred to as the Ordinance) have been issued.
2. The question that arises is: whether this Court has power to grant bail under section 498, Cr. P. C. The scheme or the Ordinance is "Prevention of offences" and to ask for security that has to be taken for keeping the peace and for being of good behaviour. The persons brought before the Tribunal are not accused who are charged with any offence. Therefore, they cannot be said to be accused persons nor can they be called convicted persons when an order is passed against them adversely, except when they contravene any order made under clause (d) or (e) of subsection. (1) of section 14 of the Ordinance. The procedure for their appearance and grant of bail is envisaged in sections 6 and 8 of the Ordinance. Section 19 of the Ordinance expressly deals with the power of the High Court in respect of orders passed and action taken by the Tribunal under sections 4, 13 and 16 of the Ordinance, but there is no exclusion of exercise of power under section 498, Cr. P. Code by section 8 of the Ordinance.
3. It is settled law that the exclusion of the jurisdiction of the Court is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied.
4. Section, 498, Cr. P. Code which applies to Courts of Sessions and the High Court is more general in its scope and 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 the nature of prevention of offences are contemplated. The Legislature has obviously intended to confer upon this Court and a Court of Sessions very wide powers to admit to bail a person who is lodged in jail as an accused or otherwise.
5. To my mind the provisions of section 8 of the Ordinance does 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. Code cannot be taken away by implication. Furthermore, section 498 is not referred to in section 8 or in any other provisions of the Ordinance and prima facie the provisions of the former are left in tact. In the circum stances I hold that it is open to this Court to exercise power under section 498 of the Code.
6. Reverting to the merits of the case, the petitioner has alleged the case against him is a result of personal vendetta on the part of Sakhawat Ali Shah, Station House Officer, Police Station Kotwali, Lyallpur. The learned counsel for the State does not oppose the grant of bail on merits. I consider this is a fit case for bail. I admit the petitioner to bail in the sum of Rs. 10,000 (ten thousand) with one surety in the like amount to the satisfaction of the District Tribunal, Lyallpur.
K. B. A. Bail granted.
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