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Before Rustam S. Sidhwa, J
MUHAMMAD KHALIL AND ANOTHER-Petitioners
versus
THE STATE--Respondent
Criminal Miscellaneous No. 785/B of 1985, decided on 17th April, 1985.
-..- Ss. 497 & 561-A-West Pakistan Foodstuffs (Control) Act (XX of 1958), Ss. 3, 6, 9-B, 9-C & 9-D(2)-Tribunal appointed under West Pakistan Foodstuffs (Control) Act, 1958 figuratively speaking can be equated with a first class Magistrate having powers under S. 30, Cr. P. C. trying case under said Act-All powers available under Code are also available to such Tribunal-Such Tribunal, therefore, can under S. 497, Cr. P. C. release a person on bail after arrest subject to provisions of that section during period of investigation or trial.
-- Ss. 497 & 498-West Pakistan Foodstuffs (Control) Act (XX of 1958), Ss. 3, 6, 9-B, 9-C & 9-D(2)-Bail-Powers of Sessions Judge or High Court to grant bail, not ousted-Court of Session and High Court have power to release a person on bail before arrest at investigation stage or trial.
In cases under West Pakistan Foodstuffs (Control) Act, 1958, the Court having jurisdiction to hear appeals from the judgments of the Tribunal is the Court of Session. The Tribunal is thus judicially inferior in status to Court of Session. Therefore, on the same analogy, a Court of Session will have no jurisdiction to suspend a sentence or release a person on bail, if conviction has been recorded by the Tribunal, but its powers under Ss. 497 and 498 of the Code to release a person on bail before arrest, at the investigation or trial stage cannot be treated as ousted. A fortiori the same powers of the High Court tinder Ss. 497 and 498 of the Code are also not ousted by subsection (2) of S. 9-D of the West Pakistan Foodstuffs (Control) Act, 1958. In these circumstances both the Court of Session and the High Court have power to release a person on bail before arrest at the stage of investigation or trial:
- S. 498 - Bail - Operating rice mill without permission - No recovery was to be made from accused millers-Accused joining investigation-Plea that government lifted restriction and that case had been instituted maliciously at instance of business rivals of accused being not without substance-Pre-arrest bail granted to accused.
Karamat Nazir Bhandari for Petitioners.
Rashid Aziz, A.-G. with M. M. Beg for Respondent.
This is a petition under sections 497 and 561-A, Cr. P. C. by Muhammad Khalil and Qadir Hussain, petitioners, for bail before arrest in respect of a case instituted against them under sections 3 and 6 of the West Pakistan Foodstuffs (Control) Act, 1958, at Police Station Kamunki on 2-4-1985.
2. The prosecution case against the petitioners is that though they are licenced millers, they operated the Rice Huller Machines without the permission of the relevant officers of the Food Department and thus violated the provisions of the Punjab Rice and Paddy Control Order, 1981, issued under section 3 of the West Pakistan Foodstuffs (Control) Act, 1958.
3. I have heard Mr. Karamat Nazir Bhandari, Advocate for the petitioners, and Mr. Rashid Aziz, Advocate-General, Punjab, on behalf of the State.
4. For the State it is submitted that section 9-D (2) of the West Pakistan Foodstuffs (Control) Act, 1958, prevents the Sessions Court and the High Court from granting pre-arrest bail under section 498, Cr. P. C.
5. Sections 9-A to 9-D and 10 of the West Pakistan Foodstuffs (Control) Act, 1958, which are relevant in this respect, are re-produced below :
9-A. Trials by Tribunal.-All offences punishable under this Act shall be exclusively triable by a Tribunal constituted under this Act.
9-B. Constitution of Tribunals.-(I) Government may, by notification in the official Gazette, constitute, for the whole or any part of the province of the Punjab one or more Tribunals consisting of a person who
( a) has to his credit, five years practice as an Advocate ; or
(b) has, for a total period of not less than three years exercised whether continuously or not, the powers of a First Class Magistrate under the Code of Criminal Procedure, 1898 ; or
(c) is and has for a period of not less than ten years been in service of Pakistan and is a law graduate.
(2) A Tribunal shall sit at such place as the Government may, by notification in the official Gazette, specify in this behalf.
9-C. Powers of Tribunals.-A Tribunal may pass any sentence and exercise all or any of the powers which a Magistrate of the First Class empowered under section 30 of the code of Criminal Procedure, 1898, may pass or exercise under the said Code.
9-D. Appeal.-(1) A person sentenced by a Tribunal have a right of appeal to the Court of Session having jurisdiction in the area within thirty days of the passing of the sentence.
(2) Save as provided in subsection (1), no Court shall have authority to revise such sentence, or to transfer any case from a Tribunal or to make order under sections 426, 491 or 498 or the Code of Criminal Procedure, 1898, or have jurisdiction of any kind in respect of any proceeding of a Tribunal.
9-E. Transfer of cases.-All cases regarding any matter within the jurisdiction of a Tribunal pending trial in any Court immediately before the constitution of a Tribunal under this Act, shall stand transferred to such Tribunal.
10. Offences and Procedure.-(1) Offences under this Act shall be cognizable and non-bailable.
(2) The procedure for the trial of offences under this Act shall be the same as is laid down in the Code of Criminal Procedure, 1898, for summary trials Provided that whenever a Tribunal considers it desirable, it may follow the procedure laid down in the Code of Criminal Procedure, 1898, for the trial of Summons Cases by Magistrate."
6. The question for consideration is whether the High Court can release a person on bail before arrest at the stage of investigation or trial, but in any case before final judgment is recorded, in respect of an offence exclusively triable by the Tribunal appointed under the West Pakistan Foodstuffs (Control) Act, 1958. But before I deal with this question, the principle stated by the Supreme Court in Muhammad Ayub v. Muhammad Yaqoob (PLD1966SC100), may be stated, namely, that under sections 496 and 498, Cr. P. C. a Court can bail out a person only if he has been placed in actual custody or appears in answer to a process issued or is brought before the Court by the police, that under section 498, Cr. P. C. only the Court of Session or the High Court, other Courts being excluded, can grant anticipatory bail, where the Court is not seized directly of the proceedings in question and where no actual arrest has been made, and that section 498, Cr. P. C. occupies the position of a supplementary provision in so far it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and the police and enables these Courts to allow anticipatory bail in suitable cases.
7. Under section 9-C of the West Pakistan Foodstuffs (Control) Act, 1958, the Tribunal has all the powers which a Magistrate of the First Class empowered under section 30 of the Code of Criminal Procedure, 1898, has, to pass orders under the said Code. Figuratively speaking the, Tribunal can be equated with a 1st Class Magistrate having powers under A section 30 of the Code of Criminal Procedure, 1898, trying a case under the said Act. Since all the powers available under the Code of Criminal Procedure are available to the Tribunal, it can, under section 497 of the Code of Criminal Procedure, release a person on bail after arrest, subject to the provisions of that section, during the period of investigation or trial.
8. There is no provision in the West Pakistan Foodstuffs (Control) Act, 1958, which ousts the Court of Session or the High Court from releasing a person on bail after arrest under section 497 or 498, Cr. P. C.I or from releasing a person on bail before arrest. under section 498 of the B same Code, during the period of investigation or trial. The power to release a person on bail provided by these sections is protected by subsection (2) of section 5 of the Code. However, subsection (2) of section 9-D of the West Pakistan Foodstuffs (Control) Act, 1958, states that no Court shall have authority to make an order under section 498. of the Code of Criminal Procedure in respect of any proceeding of a Tribunal. This subsection, therefore, requires examination.
9. Section 9-D of the West . Pakistan Foodstuffs (Control) Act, 1958, is very much. parallel to section 10(1) of the Offences in respect of Banks (Special Courts) Ordinance IX of 1984, and section 7(1) of- the Suppression of Terrorists Activities (Special Courts) Act, XV of 1975. Both these latter provisions were examined in Abdur Rahman's case (1979 P Cr. L J 43), Altaf Hussain's case (P L D 1985 Lab. 10), Muhammad Yaqub Khan's case (P L D 1985 Lab. 48) and Abdul Majid's case (1985 P Cr. L J 890). In all these cases, these provisions which barred the Courts from making orders under section 498 of the Code of Criminal Procedure, were held to be applicable to proceedings after conviction was recorded and the Courts, which were constituted to hear appeals from the judgments of those Tribunals, which was the High Court in those cases, was held to be deprived of the power to release a person on bail under section 498 or suspend his sentence under section 426, if conviction was recorded by the Tribunal, but not, if no conviction was recorded. The power of the High Court to grant bail at the investigation or trial stage was, therefore, treated as not ousted. In cases under the West Pakistan Foodstuffs (Control) Act, 1958, the Court having jurisdiction to hear appeals from the judgments of the Tribunal is the Court of Session. The Tribunal is thus judicially inferior in status to the Court of Session. Therefore, on C the same analogy, a Court of Session will have no jurisdiction to suspend a sentence or release a person on bail, if conviction has been recorded b the Tribunal, but its powers under sections 497 and 498 of the Code to release a person on bail after arrest or under section 498 of the Code t release a person on bail before arrest, at the investigation or trial stage, cannot be treated as ousted. A fortiori the same powers of the High Court under sections 497 and 498 of the Code are also not ousted by subsection (2) of section 9-D of the West Pakistan Foodstuffs (Control) v Act, 1958. In these circumstances, both the Court of Session and the High Court have power to release a person on bail before arrest at the stage of investigation or trial.
10. Arguments have been heard on the bail petition. In the case, no further recovery has to be made from the petitioners. The petitioners have joined the investigation. The allegation that the Government had lifted the restriction, vide news item in the Daily "JANG" dated 13-3-1985, and the charge that the case has been instituted maliciously at the instance of business rivals, is not without substance. The petitioners are, therefore, entitled to be released on pre-arrest bail.
11. For the foregoing reasons, this petition is accepted and the interim pre-arrest bail granted to the petitioners on 6-4-1985, is hereby confirmed
M. Y. H. Petition accepted.
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