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P L D 1981 Lahore 26
Before Ghulam Mujaddid Mirza, J
Sheikh MUHAMMAD RASHID-Petitioner
versus
THE STATE-Respondent
Criminal Miscellaneous-No. 1766/B of 1980, decided on 9th August 1980.
(a) Criminal Procedure Code (V of 1898)-
S. 498 read with Holders of Representative Offices.(Punishment for Misconduct) Order (P. O. 16 of 1977), Arts. 3 & 6-Pre-arrest bail, grant of-Jurisdiction--Petitioner, accused of offence under Art. 3 of P. O. 16 of 1977-Contention that Special Court having been constitut ed under Order, High Court, left with no jurisdiction to deal with question of confirmation of petitioner's ad interim pre-arrest bail- Contention repelled in view of dictum of Supreme Court in Zahoor 1llahi's case P L D 1977 S C 273,-[Jurisdiction].
Zahoor Rahi v. The State P L D 1977 S C 273 rel.
Pakistan Tobacco Co. Ltd, Chittagong v. The Chairman, Second Labour Court of East Pakistan and 18 others P L D 1971 Dacca 262 ref.
(b) Criminal Procedure Code (V of )898)-
S.498 read with Holders of Representative Offices (Punishment for Misconduct) Order (P O. 16 of 1977), Arts. 3, 5 & 9-Bail, grant of-Jurisdiction-Petition for grant of bail under S. 498, Cr. P. C. Not hit by any provision of P. O. 16 of 1977.-[Jurisdiction].
(c) Criminal Procedure Code (V of 1898)--
5. 498 read with Holders of Representative Offices (Punishment for Misconduct) Order (P.
O. 16 of 1977), Arts. 3 & 6-Bail ad interim,
grant of-Jurisdiction-Bail petition for pre-arrest bail of petitioner, accused of offence under S. 3 of P. O. 16 of 1977, moved at time when no special Court to try his case existed-High Court, having taken cognizance of bail petition, held, would not become functus officio and incompetent to finally adjudicate petitioner's ad interim pre-arrest bail for confirmation, merely because of a Special Court having been constituted meanwhile.-[Jurisdiction].
Muhammad Ayub v. Muhammad Yaqoob P L D 1966 S C 1003 ref.
(d) Criminal Procedure Code (V of 1898)-
S. 498 read with Holders of Representative Offices (Punishment for Misconduct) Order (P. O. 16 of 1977), S. 3-Bail ad interim, confirma tion of-Petitioner, a chronic patient of alsthama and heart ailment and spending sometime as an indoor patient as well as seeking admission in a sanitorium-Petitioner, held, entitled to bail on special grounds in circumstances.
M. S. Baqir for Appellant.
Sh. Riaz Ahmad, A.-G. assisted by Khalil Ramley, Ass% A.-G. for the State.
Dates of hearing : 2nd and 4th August 1980.
Sheikh Muhammad Rashid applied for pre-arrest bail to this Court apprehending that a case under sections 161 and 420, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, had been registered against him. The basis of the information was a news item in Daily Nawa-i Waqt.
This application was moved to this Court directly on the ground that the petitioner was under medical treatment in Lahore and his health did not permit him to travel up to Rawalpindi.
2. . On 2-6-1980, M. S. -H. Qureshi, J., admitted the petitioner to ad interim bail. Notice was issued to the State for 11-6-1980.
On 11-6-1980, Advocate-General appeared, requested for adjournment and the case was adjourned to 18-6-1980.
Instead of 18-6-1980, the matter was taken up on 21-6-1980, on which date the Acting Advocate-General submitted that according to his informa tion no * case had been registered against the petitioner at Rawalpindi by the Anti-Corruption Police. However, he requested for time to find out whether the P'. I. A. had registered any case against him. The case was accordingly adjourned to 24-6-1980.
On the aforesaid date, Acting Advocate-General informed the learned Judge that a case under Article 3 of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 (16 of 1917) (hereinafter referred to as the Order') had been registered, but no Tribunal had so far been constituted and a notification was likely to be issued in a day or two. The matter was accordingly adjourned to 28-6-1980.
On 29-6-1980, Advocate-General informed the Court that the lotification was under process. On 6-7-1980, Advocate-General requested for more time and again submitted that the notification was expected within a day or
so.
On 9-7-1980, Advocate-General informed the Court that the notification had been issued by the Federal Government constituting a Spatial Court.
Simultaneously he took a legal objection which was that as the Special Court bad been constituted under the Order, therefore, this Court had no jurisdiction to deal with the bail matter.
Learned counsel for the petitioner submitted that notwithstanding the constitution of a Special Court, this Court was competent to look into the matter, because it has concurrent jurisdiction. On the said date the matter could not be finally disposed of by the learned Judge because of little time left at his disposal. He, therefore, directed that the matter be placed before the Senior Vacation Judge. A further direction was given which was to the following effect :-
"I further direct that in the absence of any order to the contrary, the interim pre-arrest bail granted to the petitioner shall continue on upto 26th July 1980, after which it shall stand vacated."
On 22-7-1980, A. S. Salam, J., directed the office to comply with the order dated 9-7-1980.
On 26-7-1980, the matter came before me. I asked the learned counsel for the petitioner whether he was in possession of a certified copy of the first information report. He submitted that he approached the Magistrate and made a written request, but was never given a copy.
As the case was being investigated by the F. I. A., Faisalabad, I directed the Deputy Registrar (J) to contact the Officer Investigating this case and direct him to appear before this Court on 2-8-1980, along with the record. The interim bail was extended.
On 2-8-1980, counsel for the petitioner, Advocate-General, assisted by Assistant Advocate-General were present, but the officer of the F. I. A. did not turn up. The matter was taken up on 4th August 1980, on which date full-dressed arguments were heard from both sides.
3. Learned counsel for the petitioner first argued the legal objection raised by the learned Advocate-General with regard to the jurisdiction of this Court after the Special Court had come into existence. Mr. Baqir submitted that now that the Special Court had been constituted would not mean that on this ground alone this petition is to be thrown out, because this Court has concurrent jurisdiction to deal with the bail matter. Learned counsel submitted that when this petition was filed, the Special Court was not in existence and the case was adjourned number of times. It was only on 1-7-1980, when the Special Court consisting of Mr. Justice Abaidullah Khan, a Judge of this Court was constituted.
Learned counsel submitted that when the case under Article 3 of the Order was registered against the petitioner on 3-10-1979, the only forum available to the petitioner at that time was this Court and the petitioner was not expected to wait till the Special Court was constituted, because the question involved was that of liberty of a citizen.
It was further contended that there is 'no express Article by means of which the jurisdiction of this Court to deal with the bail matter has been ousted. In support of this, learned counsel relied on Zahur fahi v. The State (P L D 1977 S C 273
), where it had been observed :-
"As will be presently seen the High Court could also grant relief under section 498 of the Code of Criminal Procedure if it had considered the case in depth and not disposed it of summarily on the ground of lack of jurisdiction. It has been strenuously contended on behalf of the petitioner that the High Court has jurisdiction under section 498
of the Code of Criminal Procedure to grant bail even though it has no seisin of the case. This jurisdiction of the High Court exists unless and until it has been specifically taken away . or curtailed by any special law."
In this case it has been further observed
"Furthermore, under section 12 of the Ordinance the Special Tribunal having been clothed with powers of a Court of Sessions may exercise concurrent power of granting bail under section 498 of the Code of Criminal Procedure with the High Court, but it can only do so when it has already taken cognizance of a case under rule 209. The High Court's jurisdiction to admit to bail under section 498 of the Code of Criminal Procedure is not ousted either under section 13 of the Ordinance or under section 210 of the Rules. The jurisdiction of other competent Courts to grant bails before the Special Tribunal takes cognizance is also not ousted, nay, it is preserved under section 14 of the Ordinance.'
1t is also well-settled principle relating to the construction of statutes that the exclusion of jurisdiction of superior Courts is not to be readily inferred indeed there is a strong leaning against any such exclusion. See Maxwell on Interpretation of Statutes 1969, p. 153. This rule is deep-seated and if it is to be overturned it must ordinarily be done by a clear, definite and positive provision not left to mere implication. An apt illustration of such a provision is section 6(f) of the Criminal Law Amendment (Special Tribunal) Ordinance, 1968 (Ordinance V of 1968) (since repealed). This Ordinance was promulgated to set up a Special Tribunal to try late Sh. Mujibur Rehman and certain others for what is commonly known as Agartala Conspiracy' case. Section 6 of that Ordinance related to the powers of the Tribunal and the procedure to be followed by it clause (f ) ibid provided
The provisions of Chapter XXXIX, of the Code shall not apply and the Special Tribunal shall not admit any of the accused persons to bail.
In the instant case in the absence of a similar provision, the argument of the learned Advocate-General cannot be sustained. It must be assumed that the law-giver in 1071 was well aware of the above provision of the repealed Ordinance, which for the relevant purpose was in pari materia Chapter III of the 1971 Ordinance. This I consider is a strong reason in support of the proposition, that whenever Legislature intends to abolish altogether or restrict grant of bail or for that matter any established jurisdiction of a superior Court, it is done by an express provision and the intendment is not left to implication as is being canvassed on behalf of the State in these petitions. It is. important to observe that the invocation of the jurisdiction of the High Court under section 498, Cr. P. C. which is in general terms not dependent on the existence of the jurisdiction to hear appeal against the final decision in the case . . . . ."
Learned counsel then drew my attention to Article 6 of the Order which deals with the powers and procedure of the Special Court and is to the following effect :-
"A Special Court shall have all the powers conferred by the Code of
Criminal Procedure, 1898 (Act V of 1898), on a Court of Session exercising original jurisdiction.
Learned counsel submitted that when the Special Court was to proceed in accordance with the Code of Criminal Procedure, then bow could the jurisdiction of this Court under section 498 of the Code be ousted.
Thereafter learned counsel relied on Pakistan Tobacco Co. Ltd., Chittagong v. The Chairman, Second Labour Court of East Pakistan and 18 others (P L D 1971 Dacca 262) wherein it has been observed
"The learned Advocate has raised the question of maintainability of this writ petition in this High Court. His contention is that the order of the Second Labour Court is an award and under the provisions of the Industrial Relations Ordinance there is a provision for appeal and the petitioner not having preferred an appeal this writ petition cannot be maintained. In answer to this Mr. Jaffer has asserted that at the time when this writ petition was moved in this Court the Appellate Tribunal was not constituted and as such though the provision for appeal was there, there being no forum available the petitioner could not avail of the alternative remedy provided under the Ordinance. There is substance in the contention of the learned Advocate for the petitioner and as such it must prevail. There having been no constitution of -the Tribunal at the time of moving this High Court the petitioner had no other alternative but to move this Court and as such it cannot be said that this writ petition is not maintainable."
Learned counsel cited a few other cases, but I do not think it is necessary) to refer to those, in view of the dictum of the Supreme Court in the case of; Cb. Zahur llahi.
4. Learned counsel then addressed me on merits and submitted that the prosecution of the petitioner was mala fide, the reason for that was that the petitioner was a member of the defunct Pakistan Peoples Party which is not in the good books of the Government. He submitted that even prior to the registration of this case, the petitioner has been harassed by being involved in other cases. He further submitted that even if the first information report is taken on its face value, even then no case under Article 3 of the Order is made out, because the order passed by the petitioner was subject to appeal by the aggrieved party.
5. Before dealing with the arguments of the learned Advocate-General on the law-point, I would like to dispose of this contention, regarding which the Advocate-General's stand is that the prosecution is in possession of sufficient evidence to warrant the conviction of the petitioner and that he was not being prosecuted mala fide.
I am not prepared to go into the merits of the case at this stage, the reason is that the petitioner is to stand his trial before the Special Court. Therefore, any expression of opinion on merits, is likely to prejudice the case of either side.
6. Mr. Baqir thereafter took up the plea of ill-health and submitted that the petitioner is a chronic patient of Asthma. He has been suffering from heart ailment for which he had to spend some time as an indoor patient in Mayo Hospital, Lahore. Thereafter his health deteriorated to that extent that he was advised to seek admission in a Sanitarian. The petitioner tried for admission, but it was refused. Learned counsel showed me prescriptions and certificates in original (photostat copies of some have also been placed on record) of a senior Professor and a Specialist of Mayo Hospital, Lahore. He submitted that the petitioner is entitled to remain on bail on medical ground.
7. I now revert to the legal -objection and deal with the contentions of the learned Advocate-General. His first attack was about the maintainability of this petition, for which he referred to sections 496, 497 and 498 of the Code of Criminal Procedure. He submitted that these provisions of law could not be attracted to a Special Statute. Order 16 of 1977, for all intents and purposes, was a special Statute as such it overrides the general law. In support of this, he drew my attention to different Articles of the Order, with special reference to Article 5, which is to the following effect :-
"5. Offence to be tried by Special Court.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or in any other law for the time being in force, an offence punishable under Article 3 shall be tried exclusively by a special Court. (The underlining* is mine).
(2) .
So far as the scope of sections 496, 497 and 498 of the Code of Criminal Procedure was concerned, learned Advocate-General cited Muhammad Ayub v. Muhammad Yaqoob (P L D 1966 S C 1003) and argued that voluntary appearance would not mean "appears" as mentioned in sections 496 and 497. According to the learned Advocate=General, the aforesaid sections lay down certain principles and powers of the trial Court, Sessions Court and the High Court.
Learned Advocate-General further submitted that the two cases cited at the Bar by the learned counsel for the petitioner were constitution petitions. The dictum in these cases shall be of no help to the petitioner, who did not invoke the constitution jurisdiction but applied for anticipatory bail under section 498, Cr. P. C.
8. I shall have. to mention some dates again in order to be more precise. The-case against the petitioner was registered an 3-10-1979 at 3 p.m. by F. 1. A. at Faisalabad. As already observed it was under Article 3 of the Order. The bail application was filed on 2-6-1980. On that date the petitioner was not in possession of the exact data. He, therefore, mentioned certain offences under the Penal Code read with section 5(2) of the Prevention of Corruption Act. It was only on 24-6-1980, that he became aware that be, was accused of an offence-under Article 3 of the Order, when the Advocate-General laid this information before the learned Judge. The notification constituting the Special Court was published on July 1, 1980. It is, therefore, quite clear that from the date of the registration of the case against the petitioner uptill 1st July 1980, there was no Special Court in existence. The question, therefore, arises, was the petitioner left with no remedy. I have no hesitation in answering the same in the negative.
The reason for that is that every citizen has a right to enjoy protection of law and to be treated.in accordance with law. This is his inalienable right: Similarly dignity of a man is inviolable. These rights are guaranteed by our Constitution. Therefore, there can be no. wrong without a remedy.
9. So the only forum available to the petitioner when he could legitimately and legally seek redress would be this Court under section 498, Cr. P. C. I am not prepared to accept that the liberty of a citizen is so cheap that an accused person is to wait indefinitely for the necessary relief. Such a detention would ultimately amount to arbitrary arrest which is looked down upon in every civilized society.
I have taken note of Article 5 of the Order referred to above, as well as Article 9, which deals with bar of jurisdiction. It says :-
"Save as provided in Article 8, no Court shall have arly jurisdiction of any kind, in respect of any order, sentence or proceedings of a Special Court."
Before proceeding further, I would like to observe that the present' application is not hit by any of these Articles, because according to Article 5, the offence punishable under Article 3 shall be tried exclusively by a Special Court. I am not trying the petitioner .
Similarly, I am not dealing with any matter in respect of any order, sentence or'proceedings of a Special Court.
10. 1 do not agree with the learned Advocate-General that the dictum .of the Supreme Court as well as of the Dacca High Court shall have to be excluded from consideration simply because those were constitution petitions. I am of the view that those are binding on me and I respectfully follow those.
Similarly the decision cited by the Advocate-General with regard to the provisions dealing with the bail matter are not very helpful to him. The reason being that the learned Advocate-General lost sight of the fact that when this petition was moved, the Special Court was not in existence. This Court having taken cognizance would rot become functus officio later on simply because the Special Court has been constituted. Moreover I find that in the case of Muhammad Ayub v. Muhammad Yaqub, with regard to the word appears' the Court observed
"This word may be taken to have been used in sections 496 and 497, in the same sense as in section 242 or 252 of the Code, which obviously contemplate appearance in answer to a process issued by a Court.
This interpretation will have the merit of saving section 498 in its own right. The position that emerges then, would be that under sections 496 and 497, Criminal Procedure Code, the Court can bail out a person only, if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the police, or by-some other authority. In other words, these sections .apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested. Section 498, however, would be called in aid, before the Court of Session and the High Court, even where the Court is not seized directly of the proceedings is .question and where no actual arrest has been made so far but anticipatory bail is asked for, e.g., where the case is still at a stage of investigation by the police or is pending in a subordinate Court.
I am, therefore, clear in my mind that the mere fact that a Special Court was constituted on 1st July 1980, would not mean that this Courtly is not competent to finally adjudicate this pre-arrest bail application .
The next question to be considered now is whether the petitioner is entitled
to the concession of bail. For that matter, I have already observed that I
am not entering into the merits of the case.
11. This only leaves me with the medical ground. Learned counsel for the petitioner has submitted in detail about the health of the petitioner. He showed me the certificates and prescriptions of a senior Professor and a Specialist of Mayo Hospital, Lahore.
Learned Advocate-General has not been able to controvert this position. A am, therefore, of the view that the petitioner is entitled to bail on medical ground. The interim bail is accordingly confirmed .
s. G. D. Bail confirmed.
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