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Criminal Review Petition No. 11-R of 1976, decided on 23rd December 1976.

(On Review from the judgment and order of the Court dated 15th July 1976, in Criminal Petitions Nos. 26-R and 27-R of 1976).

(a) Constitution of Pakistan (1973)-

--- Art. 188 read with Supreme Court Rules, 1956, O. XXVI-Review Power to grant bail to person accused of offence under Defence of Pakistan Rules, 1911 being expressly taken away by amendments in Arts. 187 .& 199 of Constitution (1973) and S. 13, Defence of Pakistan Ordinance, 1971, contention regarding proper construction of such provisions, held, only of academic nature and no point in reviewing judgment on such grounds-Defence of Pakistan Ordinance (XXX of 19711, S. 13-Defence of Pakistan Rules, 1971, ff. 42 (6) & 49.[Review].

(b) Defence of Pakistan Ordinance (XXX of 1971)--

S. 13 read with Defence of Pakistan Rules, 1971. rr. 42 (6) & 49-Review-Observations made in judgment about mala fides of petitioner/ appellant's detention-Only of tentative nature and confined to question of bail only-Such remarks not to reflect on merits of prosecution case pending before Special Tribunal or writ petitions pending in High Court-Ground urged for review (bona fides of charges not discussed at bar of Court yet observations regarding cases being registered mala fide appearing in judgment), held, does not arise in circumstances. Supreme Court Rules, 1956, O. XXVI. [Review].

(c) Defence of Pakistan Ordinance (XXX of 1971)-

S. 13 read with Defence of Pakistan Rules, 1971 ff. 42 (6) & 49 -. Review-Allegations in petitions for Special Leave to Appeal regarding cases being registered mala fide with political motive Prosecution not relieved of responsibility to controvert such allegations even though Court hesitating to go into question same ground having been earlier raised in habeas corpus petition-Such omission having led to remarks, objected to, review of judgment, held, not called for Supreme Court Rules, 19.56, O. XXVI.-[Review],

(d) Defence of Pakistan Ordinance (XXX of 1971)-

--- S. 13 read with Defence of Pakistan Rules, 1971, rr. 42 (6) & 49 Review-Order of production of detenu passed by High Court conveyed to Home Secretary of Provincial Government but such officer expressing inability to comply with order for one reason or another Provincial Government concerned though impleaded as a party in habeas corpus petition yet political propriety and good sense demanded Government's compliance with High Court's directions-Remarks made in such context in judgment of Supreme Court regarding contemptuous disregard having been shown to High Court's order, hence called for no review-Position taken up by State that it would not have failed to comply with order if it were joined as a party to habeas corpus petition, however, welcomed-Supreme Court Rules, 1956, O. XXVI-[Review].

Ghulam Ali Memon, A-G. Sind instructed by Fazal-i-Hussain, Advocate-on-Record for the State.

M. Anwar, Senior Advocate, Ijaz Hussain Batalvi, Senior Advocate and M. A. Rahman, Advocate-on-Record for Respondent.

Yahya Bakhtiar, Attorney-General for Pakistan and Fazal-i-Hussain, Advocate-on-Record (under Order XLV. Supreme Court Rules, 1956).

Date of hearing : 20th October 1976.

MUHAMMAD YAQUB ALI, C. J

.-Criminal Petitions for Special Leave to Appeal Nos. 26-R and 27-R of 1976 were converted into Appeals and by majority judgment allowed on 15-7-1976 with the direction that Ch. Zahoon Ilahi, confined in the Central Jail, Karachi, to stand trial under rule 42 (6) of the Defence of Pakistan Rules, be released on interim bail. The Government of Sind has applied for review of the judgment on a number of grounds.

The grounds raised are : (i) while bona fides of the charges on which Ch. Zahoor Ilahi is arraigned before the Special Tribunal was not discussed at the bar of the Court, observations appear in the judgment that the cases registered against him are mala fide; (ii) that though the Sind Government was not a party to the habeas corpus petition moved on behalf of Ch. Zahoor Ilahi in the High Court of Lahore, it is observed in one of the judgments that the Sind Government has shown contemptuous disregard of the order passed by the High Court for production of the person of Ch. Zahoor Ilahi ; (ill) the petitions for special leave to appeal were directed against the orders passed by the High Court of Sind & Baluchistan refusing to grant bail under sections 497 and 498 of the Code, on the finding that section 13 of the Defence of Pakistan Ordinance, 1971 had excluded jurisdiction of the High Court under the Code, but in the majority judgment resort has been made to Articles 181 and 198 -of the Constitution in allowing bail to Ch. Zahoor Ilahi ; (iv) that Article 187 has not been properly construed as it was not intended to countermand any provision of the Constitution or of any law such as the Defence of Pakistan Ordinance ; and (v) the majority decision in the case is that section 13 of the Defence of Pakistan Ordnance excludes the jurisdiction of the High Court under sections 497 and 498 of the Code to allow bail to a person accused of an offence under the Defence of Pakistan Rules, but some members of the Bench have held to the contrary which has led to confusion about the correct interpretation of section 13.

Grounds 3, 4 and 5 are of only academic nature as Articles 187 and 199 of the Constitution and section 13 of the Defence of Pakistan Ordinance have since been amended. The power to grant bail to a person accused of an offence under the Defense of Pakistan Rules is now expressly taken away. There is thus no point in reviewing the judgment of the Court on these grounds.

The other two grounds also do not call for review. The observations made by my Lords about the mala fide of Ch. Zahoor Ilahi's detention are of tentative nature and confined to the question of bail only. These remarks will not, therefore, reflect on the merits of the prosecution case before the Special Tribunal or of the writ petitions pending in the High Court of Sind.

As the presiding Judge I did say from the bar that the Court will not go into the question of mala fide as the same ground is raised in the habeas corpus petition filed earlier in the High Court for release of Ch. Zahoor Ilahi but this did not relieve the Advocate-General of Sind of the responsibility to controvert the allegations made in the Petitions for Special Leave to Appeal that the cases registered against Ch. Zahoor Ilahi were mala fide and politically motivated. This omission has led to the remarks with which the learned Advocate-General feels aggrieved.

Lastly it was contended that the Sind Government was not a party to the habeas corpus petition in the High Court of Lahore but adverse remarks have been made in one of the judgments that it had shown contemptuous disregard of the order passed by the Lahore High Court for production of Ch. Zahoor Ilahi. It is true that the Sind Government was not made a party to the habeas corpus petition and the order of the production was not binding on it in that sense but the fact remains that the order for production of Ch. Zahoor Ilabi was conveyed to its Home Secretary and he expressed inability to comply with that order for one reason or another. The remarks to which objection is taken are made in this context, for political propriety and good sense demanded that the Government of Sind should have complied with the directions given by the High Court of Lahore. However, instead of depreciating the conduct of the Government of Sind I would welcome the position taken up by the learned Advocate-General before us that if the Government of Sind had been joined as a party to the habeas corpus petition in the Lahore High Court, it would not have failed to comply with the order for the production of Ch. Zahoor Ilahi.

In the light of the above discussion and the facts set out above, the applicant has not made out a case for review of the judgment of the Court delivered on 15-7-1976 and I dismiss the petition.

SALAHUDDIN AHMAD, J.-I agree.

MUHAMMAD GUL, J.-I agree.

MUHAMMAD AKRAM, J.-I agree.

MUHAMMAD AFZAL CHEEMA, J.-I agree

. I have however added a separate note.

Having perused the Review Petition I find that in my judgment some minor error of typographical nature had inadvertently crept in which I have corrected. At page 25 of my judgment corresponding to page 124 of the Court's judgment the date of filing of the bail application was wrongly mentioned as 25.3-76 instead of I1-3-76. As the same page a little below the word "inherent" has been deleted. Again at page 27/126 the number of bail application was wrongly mentioned as 250 of 1976 instead of 547/11 of 1976. Similarly at the bottom of page 29/128 the time was wrongly given as 10-40 p.m. instead of 10-40 a.m. although on the previous page this mistake had already been corrected by me. All these corrections leave absolutely intact the conclusions arrived at by me in the judgment which remains unaffected.

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