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Petition No. 313 of 1967, decided on 28th September 1967.

S. 18 ‑ Appeal before Commissioner ‑ No procedure provided in Ordinance‑Procedure provided in Criminal Procedure Code, 1898, held, to be followed in disposal of such appeals Commissioner, as a Criminal appellate Court, has power in a fit case to suspend or modify operation of order appealed against pending final disposal of appeal‑Criminal Procedure Code (V of 1898), S. 426‑Intrepretation of statutes‑Appellate Court, powers of‑Power to pass interim order must be deemed to be inherent in appellate or revisional Court or tribunal unless indication to contrary in statute.

Art. 98 (4)‑Interim order‑Power to pass interim order is presumed under Art. 98(4) Such an order cannot, however, be passed in a special case without giving notice.

Sardar Shah Bokhari v. Cheif Justice and Judges of the High Court of West Pakistan P L D 1965 S C 479 rel.

Khalid Ishaque for Petitioner.

Akhtar Ahmad Qazi, A. A.‑G. for the State.

Date of hearing : 28th September 1967.

‑This is a Petition under Article 98 of the Constitution to which article 102 and section 491, Cr. P. C. have also been added. The petitioner was proceeded against under the West Pakistan (Control of Goondas) Ordinance, 1959 and the District Magistrate Sukkur, who exercised the powers of a tribunal under the said Ordinance, after recording evidence passed his final order on 8th May 1967, the operative part of which may conveniently be reproduced:‑

"On account of the above reasons, I hold that the allega tions pointed out above have been fully established against the respondent and under section 13 of the West Pakistan Control of Goondas Ordinance 1959. I declare that the respondent is a Goonda and direct that his name be publicly notified in the prescribed manner and be placed on the prescribed list of Goondas. Under section 14(1)(a) ibid I further direct him to furnish a bond in the sum of Rs. 50,000 with two sureties each in the like‑ amount for a period of one year, to be of good behaviour. I further direct under section 14(1)(d) ibid that his movements for the period mentioned above shall be restricted to the limits of Sukkur Municipality and that he shall report himself at the police station B' section daily at 8.00 a.m. and 8.00 p.m.

It is further directed under section 20 of the Ordinance that the respondent shall present himself before the Additional District Magistrate, Sukkur, on any working day and at such time as required by the Additional District Magistrate for being photographed and for giving specimen of his hand‑writing and signatures, etc."

The Petitioner preferred an appeal against this order before the Commissioner, Khairpur Division under section 18 of the Ordin ance and also applied for the suspension of the order of the tribunal, or in the alternative, to amend the order of the tribunal pending the final disposal of the appeal by permitting the appellant to go back and live in his own village and to dispense with the obligation of his reporting at the police station every morning and evening. This prayer for an interim order during the pendency of the proceedings was rejected by the learned Commissioner by his order dated 4‑7‑67 upon the short ground that he had no such power under the Ordinance either to suspend the operation of the order passed by the District Magistrate or modify it at an interim stage It is against this order that the present petition is directed.

2. We have heard Mr. Khalid Ishaque for the petitioner and Kazi Akhter Ahmad, A. A.‑G. for the State. The question which falls for determination is whether in the absence of an express power in the Ordinance to suspend the operation of the order of the District Magistrate or to relax its rigour by an interlocutory order pending the disposal of the appeal can this be done by the appellate authority which, under the Ordinance, is the Commis sioner of the Division.

3. It could be useful now to examine some of the provisions of the Ordinance to understand the scope of the appeal under section 18. It may be noted that an appeal is provided not only against the final order which may be passed by the tribunal but various other orders. These are:‑

(i) an order in contempt proceedings passed under section 4.

(ii) an order passed under section 8 which empowers the tribunal to take a bond for appearance or for good behaviour until the conclusion of the inquiry or for detention instead of taking a bound.

There is then an appeal provided against the final order under section 13, whereby the person is declared as a goonda and under section 14, whereby special obligations may be imposed upon such a person. An examination of the Ordinance shows that the tribunal has very wide powers in regard to the person who has been proceeded against under the Ordinance and against whom very drastic orders, curtailing his freedom of movement and action and depriving him of his liberty can be passed. Section 10 provides that the tribunal shall in the proceedings follow the procedure prescribed in the Code of Criminal Procedure for conducting trials and recording evidence in summons cases but subject to the special provisions of this Ordinance. By subsec tion (2) of section 3 it is provided that the proceedings before the tribunal shall be deemed to be judicial proceedings. However, as far as the appeal and its hearing is concerned no procedure is expressly provided. Subsection (2) of section 18 merely provides for the application of the Limitation Act and prescribes a limitation of 30 days within which an appeal may be filed from the date of the order. Then comes subsection (3) which may be reproduced:‑

"(3) The Commissioner on hearing the appeal may:‑

(a) discharge the person complained against, or

(b) dismiss the appeal, or

(c) subject to the provisions of this Ordinance modify the order appealed against in such manner as he may think fit."

It may be noticed that there is no express provision of the manner in which the appeal is to be filed, or whether it should be accompanied by a copy of the order of the tribunal appealed against, or that upon the filing of such appeal the record and proceedings of the tribunal are to be sent for or that there is going to be any personal hearing and if so, whether appearance of counsel is contemplated. However, it was conceded before us, and rightly, that in all these respects the normal procedure apply ing to a criminal appeal is followed. It may be observed that even for the disposal of the interlocutory application on which the impugned order was passed the Commissioner bad issued notice to the State and the A. P. P. had appeared .on its behalf and so did the counsel for the appellant. It was the conten tion of the learned A. A.‑G. that section 426 of the Criminal Procedure Code expressly provides for an order suspending the sentence pending appeal, or release of the appellant on bail and in so far as no similar provision is contained in the Ordinance there is no power in the Commissioner to pass an order which a Criminal Court of Appeal would be empowered to do under section 426. But the Criminal Procedure Code is a complete Code and provides for everything and for all situations that may arise in the trial of a case or in the disposal of the appeal. It would, however, be of interest to note that section 423, Cr. P. C expressly provides for the sending for the record of the case and though there is no such provision in the Ordinance it had to be conceded that this was contemplated. Now, where did this power come from considering that it is not so provided expressly in the Ordinance. The answer to this must be that unless there was some indication to the contrary in the Ordinance the Commissioner would have such power as a Criminal Appellate Court, of course, subject to the provisions of the Ordinance. In the Ordinance itself there is no indication to the contrary and as far as the trial of the proceedings before the tribunal is concerned, it is provided by section 10 that the procedure prescribed in the Code shall be followed. Having said this with regard to the original proceedings it would be reasonable to assume that it was intended that in the disposal of appeal the procedure of the Code will be followed subject to any special provision in the Ordinance. But as it has been pointed out no such special provision has been made. An appeal has generally been defined as the transference of a case from an inferior to a higher Court or tribunal in the hope of reversing or modifying the decision of the former. It is for this reason that an appeal is considered to be a continuation of the original proceedings. An occasion may arise where the order of the tribunal appealed against is so perverse or so harsh and so absurd or in such utter disregard of the provisions of the Ordinance itself that the Commissioner may, in a proper case upon an application made by the appellant, consider it fit to suspend the operation of the whole or any part of the order and not wait for it until in God's good time the record is received and the case becomes ripe for hearing and is disposed of finally on merits. Let us take an extreme case. Supposing the tribunal has ordered the detention of the person proceeded against in prison but the man gets a severe heart attack and is close to death and is so certified by Medical Board, would the Commissioner, who has entertained the appeal, have no power to release him on bail until further orders The answer, in our opinion, must be in the negative. Whether the Commissioner will or will not exercise such a power at the interim stage is for him to decide, but considering that he is the appellate authority and upon the filing appeal the proceedings in law stand transferred to his Court, he should in the nature of things be held to have the power to suspend or modify the operation of the order appealed against in a fit case.

4. The learned A. A.‑G. referred to Article 98(4) of the Constitution and contended that even the High Court, which is a superior Court, would have had no power to pass an interim order after having entertained a petition under that Article but for what is contained in clause (4). We are unable to agree because it is abundantly clear by the sub‑clause that the power to pass an interim order is presumed and what this clause provides is that in a special case such an interim order shall not be passed unless notice has been given. The inference is irresistible that where a power of appeal is granted to a Court or Tribunal or where any other remedy is provided for the correction of error and quashing of proceedings, the Court or the tribunal must be deemed to possess necessarily the power to pass an interim order so as to prevent irreparable injury during the pendency of the petition or appeal or to lessen the rigour of the order appealed against. We may usefully refer to the Judgment of the Supreme Court in the case of Sardar Shah Bokhari v. Chief Justice and Judges of the High Court of West Pakistan (P L D 1965 S C 479) where it was held that the power to direct and interim suspension of the licence of an advocate against whom an inquiry is pending, is really ancillary to the power of punishment, after final adjudica tion and, therefore, the High Court should be deemed to have that inherent power to pass such an order in an appropriate case. We may further point out that section 19 of the Ordinance provides for a revision of the order passed by the tribunal or the Commissioner in case under section 4, 13 and 16 of the Ordin ance. We have little doubt that upon such revision being filed, the High Court would have power to pass an interim order even though that power is not expressly given by the Ordinance. The power to pass an interim order thus must be deemed to be inherent in the appellate Court or for that matter in the revisional Court unless there is an indication to the contrary in the statute itself.

5. For the reasons given we allow this petition and set aside the order of the Commissioner passed on 11‑7‑67 and direct that he shall hear the petition for the interim order and dispose it of on its merits. In view of this order we do not consider it fit to grant the alternative relief sought in this petition.

Petition allowed.

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