' This order will dispose of Criminal Miscellaneous Nos, 2640-B, 2650-B and 2666-B of 1979 since a common question of law about the competence of this Court to grant bail before arrest in criminal cases triable by Military Courts arises.
2. These three petitions are petitions for bail before arrest. Criminal Miscellaneous No, 2640-B and 2650-B are the outcome of a case registered by F. I. R. No, 292 dated 22-7-1979 in P. S. Kotwali, Faisalabad under M. L. R. No,
33. It is alleged that on 22-7-1979 on the visit of Pir Sahib of Pagara, President Muslim League to Faisalabad the petitioners in the two petitions participated in a procession which was taken out despite the warning given by the D. S. P. City through S. H.
0., Police Station, Gulberg that the holding of processions was banned. During arguments it was admitted that a number of persons on cars, scooters and bicycles had collected to receive Pir Sahib of Pagara. From the place of reception all of them went to the premises where the meeting was being held. The petitioner's case is that no case is made out against them under M. L. R. No, 33, as the persons who are said to, have formed the procession were only going to the meeting place from the place where they had received the President of the Muslim League.
3. Petitioner in Criminal Miscellaneous 2666-B/79, S. Hakam Shah had made some complaint against Naib-Subedar Sajjad Haider Shah which was investigated by Martial Law authorities. One of the allegations was that Sajjad Haider Shah had forcibly occupied the immovable property belonging to the petitioner but this was held to be a matter of civil nature. Another allegation was that he had manhandled the wife of the petitioner. It was held that this was a matter \which should be reported to the Police Agency which could investigate and take a proper action on it. The third allegation is that the J. C. 0, has been misusing his official position as well as the Military Transport.
He misused a military car on 3-5-1979 when he visited the village in an army jeep. This allegation was held to be baseless and a case under M. L. R. (it should be M. L.
0.) No, 33 was registered, against him. S. Hakam Shah petitioner has applied for bail before arrest.
3. The common question in these cases, as stated above, is about the jurisdiction of this Court to allow bail before arrest in cases registered under Martial Law Regulations or Orders.
4. The learned Additional Advocate-General relied upon Rana Muhammad Atnin v. The State (1).
That case was withdrawn from an ordinary criminal Court and transferred to the Special Military Court for trial. It was held that neither the High Court nor the Supreme Court has any jurisdiction to grant bail to the accused in such a case. The learned Additional Advocate-General also relied upon C. M. L. A.'s M. L.
0. No, 15 which provides for the procedure for grant of bail pending investigation or trial to persons charged under M. L. Rs, or Orders in certain cases. It provides that a bail application will be submitted on behalf of the accused to the Military Court where the accused is to be tried, which may grant bail after examining the case and gravity of the offence committed by the accused against appropriate cash or personal sureties. It further provides that the bail will be granted when it is not apprehended that the accused will either tamper with the prosecution evidence or that he will abscond and the case against him is not of a very serious nature. Arrangement for execution of the necessary bond or surety bond would be made by the Police Officer to whom the order of the Court is addressed. Para. 3 of this Order provides that "the order of the President of the Court or the Summary Military Court for bailing out the accused will be addressed to the relevant police officer in whose custody the accused may be at the time.
5. The learned Additional Advocate-General submitted on the basis of M. L.
0. No, 15 that this impliedly takes away the jurisdiction of all Courts including the High Courts and the Supreme Court in matters which are governed by it. In answer to a query, he submitted that the jurisdiction to allow bail before arrest is also vested in the Military Court and as such that jurisdiction is impliedly ousted by this M. L.
0. He relied upon section 1(2) of the Cr. P. C. Which provides that in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. He argued that C. M. L. A's (M. L.
0.) No, 15 has in view of this an overriding effect over the Cr. P. C.
6. Mr. Riaz Anwar learned counsel for the petitioner in Criminal Miscellaneous 2650-B/79 who argued this point in detail and whose arguments
(1) 1978 SCMR 420 were adopted by the learned counsel for the other two petitioners submitted that subsection (2) of section 1, Cr. P. C. Is to be read in the light of section 5 and section 29 and where the field is not occupied by any specific law including the M. L. Regulation or Order, the matter shall be governed by the Cr. P. C. And to that extent the jurisdiction of the High Court cannot be held to be ousted. He further referred to C. M. L. A.'s M. L.
0. Nos, 4 and 15 with a view to point out that the provisions of Cr. P. C. Relating to the registration of a case and its investigation are even now applicable to the cases triable by the Military Courts according to the procedure of M. L.
0. No,
4. He submitted that as M. L.
0. No, 15 only allows the Military Courts to allow bail after arrest, it would follow that like the registration and investigation of a case, the matter of bail before arrest shall have to be decided in accordance with the provisions of Cr. P. C. He also submitted that the Military Court has no jurisdiction to grant bail unless it takes cognizance of a case on receipt of a report under section 173, Cr. P. C. Or a case stands transferred to it. Lastly he argued that according to the established law the jurisdiction of the superior Courts cannot be taken away except by express words.
7. Section 5, Cr. P. C. Provides that all offences under the Pakistan Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of the Cr. P. .C. But this will be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 29 provides that subject to the other provisions of this Code any offence under any other law shall when any Court is mentioned in this behalf in such law, be tried by such Court but if no Court is mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code.
8. Section 29 is relevant to this extent only that the High Court under the Cr. P. C. Shall have jurisdiction to try cases under laws other than P. P. C. Unless some Court is mentioned in that other law which means that the jurisdiction of the High Court or other Courts for the matter of that under the Cr. P. C. Would be ousted only if there is a provision for trial in the relevant law by any Court named therein. Section 5 makes it clear that unless in any enactment the manner or place of investigating, inquiring into, trying or otherwise dialing with offences under laws other than P. P. C. Is specifically provided, the provisions of Cr. P. C. Shall be applied to the investigation, inquiry, trial etc. Of offences under that other law also, which would clearly mean that the procedure of Cr. P. C.
Would not be applied only in cases where procedure in regard to investigation, inquiry and trial etc. Is provided. This lends support to the arguments of the learned counsel that unless a particular procedure is provided in that other law, the procedure of the Criminal Procedure Code shall have to be adhered to. It would, therefore, follow that where a Special Act is silent on a particular matter unless the procedure provided in that Special Act is all-embrading, the Cr. P. C. Would apply. In The State v. Habib Jalib (1), it was held that where the matter was within the competence of the Special Tribunal, the jurisdiction of ordinary criminal Courts was completely ousted but it was clarified that the jurisdiction of the High Court was not whittled down except for the considerations laid down in rule 206 of the Defence of Pakistan Rules. A similar question arose in the case of Ch. Zahoor Elahi M.
N. A. v. The State (2). Cases had been registered against Ch. Zahoor
(1) PLD 1967 Lah. 1297 (2) PLD 1977 SC 273 Elahi under rule 42(6)(e) read with rule 49 of the Defence of Pakistan Rules, 1971. The High Court rejected the bail application summarily on the ground that by virtue of section 13 of the Defence of Pakistan Ordinance, it had no jurisdiction to grant bail. For this proposition the learned Judge relied upon a decision in Muhammad Yasin v. State (Cr. Bail Application No, 101 of 1974) in which following the decision of the Supreme Court in Muhammad Akram v. The State (1), it was held that once the case was referred to a Special Tribunal superior Courts had no jurisdiction to interfere. It was held by the Chief Justice that the bar in section 13 of the Defence of Pakistan Ordinance against the jurisdiction of any other Court was complete. All other Judges comprising of the majority did not, however, agree with this. Muhammad Akram, J. Held that (pages 342 and 343) an examination of all these provisions of the above Ordinance shows that the special Tribunal is constituted only for the "trial" of the cases entrusted to it and the procedure is also directed towards that end in view. It does not deal with cases in their preparatory stages up to the point when they are made ready for trial. The Tribunal commences the proceedings before it by taking cognizance of the case. As such the "proceedings of a Special Tribunal" within the meaning of subsection (1) of section 13 of the Ordinance have a special connotation. The protection extended by this subsection is confined to the "proceedings of a Special Tribunal" properly so-called and not to any and every proceedings before it. It was, therefore, held that the jurisdiction of the High Court to grant bail before that stage remained intact. Muhammad Gul, J. Agreed with the argument that the matters relating to grant of bail being extraneous to section 13 nothing contained therein will affect that right which in the absence of any provision to the contrary in the Ordinance and the rules will fall to be governed by section 498, Cr. P. C. (pages 358, 359 of the report). It was, therefore, held that the High Court had the jurisdiction under section 498,Cr. P. C. To allow bail to a person accused of a contravention of any rule . Of Defence of Pakistan Rules albeit the Special Court in seizin of the case, had refused bail. Salahud Din Ahmad, J. Also held that since section 498, Cr. P. C. Was not mentioned in section 13 of the Ordinance, the jurisdiction under that section was not taken away. It was observed (page 325) that it is now a well-established principle of interpretation of Statutes that the jurisdiction of a High Court cannot be abolished or ousted unless this is done by express words or clear intendment.
It was also held that even in cases of bar of jurisdiction the Court acts under Article 199 of the Constitution on an application under section 498, Cr. P. C.
10. The principle will apply to the interpretation of M. L.
0. 15 also. C. M. L. A's (M. L.
0.) No, 4 provides for the (1) formation of special military Courts and Summary. Military Courts; their power and jurisdiction to try and punish any person for an offence under any of the Martial Law Regulations or Orders or under any other law for the time being in force; (2) cognizance of an offence directly upon receiving a complaint constituting offence or upon a report in writing of facts made by any police officer or any officer of the Armed Forces or upon information received from any person other than a police officer or an officer of the Armed Forces or upon its own knowledge or suspicion that such offence has been committed; (3) cognizance of the matter on withdrawal of a case by the Martial Law Administrator of a Zone from an ordinary criminal Court and its transfer to a Military Court; (4) the procedure to be adopted
(1) PLD 1963 SC 373 "for trial of offences" under Martial Law Regulations or contravention of Martial Law Orders or offences under any other law for the time being in force; and (5) the constitution of Special Military Courts and of the Summary Military Courts and their powers particularly the application of the procedure of Field General Court Martial convened and constituted under the Pakistan Army Act, 1952, and Rules made thereunder for a Special Military Court and the procedure of a Summary Court Martial as provided by the same Act of 1952 and its Rules.
11. From an analysis of these provisions of the two M. L. Os. It will be clear that while M. L.
0. No, 4 deals with the powers and the procedure of trial of the offence starting from the time of taking cognizance either directly or by transfer of the case from an ordinary criminal Court, M. L. O.
15 deals with the stage of investigation also and allows grant of bail to accused not only pending trial but also pending investigation. Another important point to note is that there is no separate procedure provided 'for registration of cases and their investigation. This being the case by virtue of section 5(2) of the Cr. P. C. The procedure for registration of cases and investigation will be the same as provided by the Cr. P. C. The applicability of Cr. P. C. Is not, therefore, altogether excluded.
That Code is partly applicable and partly not applicable. It is applicable in regard to registration and investigation of cases and not applicable in matters of trial.
12. In Cr. P. C. There are provisions of bail in bailable offences under section 496, in non-bailable cases under section 497 and the special jurisdiction of the High Court and the Sessions Court to grant bail under section 498. Sections 496 and 497 comes into force after the arrest of an accused person or when he appears or is brought before the Court after arrest. It is only under section 498, Cr. P. C. That the power to grant anticipatory bail is conferred upon the High Court or the Court of Sessions. The Crown v. Khushi Muhammad (1) and Sadiq Ali v. State (2). Bail thus can be granted inter alia during investigation and after arrest under section 496 or 497 whichever provision be applicable and inter alia before arrest under section 498, Cr. P. C.
13. The provisions of M. L.
0. No, 15 which also allows bail during investigation are on the same lines as the provisions of section 497. I am not, therefore, in agreement with the argument of the learned Additional Advocate-General that M. L.
0. No, 15 empowers the Military Courts to grant bail before arrest also. This finding is further supported by para. 3 of M. L.
0. No, 15 that the order of the President of the Court or the Summary Military Court, for bailing out the accused will be addressed to the relevant police officer, in whose custody the accused may be at the time. The paragraph obviously contemplates that the bail will be granted by the Military Court when the accused is in custody. Though the provision of the bail order being addressed to the relevant police officer may not be exhaustive and in cases where the accused ordered to be bailed out is in judicial custody, the order may have to be addressed to the Jail authorities, 1 am, therefore, clearly of the view that M. L.
0. 15 does not empower the Military Court to allow bail before arrest.
13. This being the case, it is clear that the provisions of section 498, have remained untouched in M.
L. O. No,
15. There is nothing in that Order either specifically ousting the jurisdiction of the High Court to grant
(1) PLD 1953 FC 170 (2) PLD 1966 SC 589 bail' before arrest under section 498 or ousting such jurisdiction by necessary intendment. Applying the dictum of their Lordships in the case of Ch. Zahur Elahi it will be clear that the jurisdiction of the High Court to grant bail before arrest is not affected by M. L.
0. No,
15. The only jurisdiction which is affected is of bail after arrest during investigation as well as trial. But in that case the High Court can exercise its supervisory jurisdiction under Article 199 of the Constitution and in a fit case where, for example, either no offence is made out or the prosecution is mala fide or the Military Court takes cognizance of a case triable by an ordinary criminal Court without there being any special circumstance for such cognizance, the High Court can grant bail to the accused arraigned before a Military Court. The list of grounds that I have given here for exercise of extraordinary jurisdiction under Article 199, is not exhaustive but it is only illustrative.
14. The learned Additional Advocate-General tried to distinguish the case of Ch. Zahoor Elahi on the ground that there the Code of Criminal Procedure was applicable to certain extent. I do not agree with this. The only point of distinction between that case and the present case is that there the High Court had some appellate jurisdiction but the finding about the applicability of section 498, Cr. P. C.
Was not based on this ground but had been arrived at independently of it after considering whether section 498, Cr. P. C. Was at all excluded from section 13 of the Defence of Pakistan Ordinance. There is, however, an analogy between the two cases, in so far as there the Special Court was given exclusive jurisdiction from the stage of trial and it was, therefore, held that this did not affect the jurisdiction of the High Court prior to the trial. In the cases triable by the Military Court under M. L. Regulations or Orders taking cognizance either directly or on transfer, the jurisdiction under M. L.
0. No, 4 starts from the time of taking cognizance and not during the investigation while under M. L.
0. No, 15 the jurisdiction of the Military Court can be invoked during investigation only after the arrest of the accused. Cr. P. C. Is applicable at least admittedly to the stage of investigation. There is no reason, therefore, why it should not be applicable to matters of procedure whit are not governed by M. L. Os. Nos, 4 and 15, i,e, to the field or matters which are not occupied or covered by these Orders. This argument establishes that the power of the High Court to grant bail before arrest is not affected by the said Orders or any general rule.
15. The continuity of the High Court's jurisdiction in at least occupied field finds support from the case of Begun, Nusrat Bhutto v. Chief of Army Staff etc. (1). It may be stated that initially at the time of the imposition of 1st Martial Law it was held in The State v. Dosso (2), that after victorious revolution or a successful coup detat, the national legal order must for its validity depend upon the new law creating organ. Even Courts lose their existing jurisdictions and can function only to the extent and in the manner determined by the new Constitution. This principle was based on Kelsen theory. But in Asma Mani v. Government of the Punjab (3), in which second Martial Law of 1969 was challenged as illegal and unconstitutional, it was clarified that the principle laid down in The State v. Dosso's case proceeded on the assumptions that the basic doctrines of legal positivism were so firmly and universally accepted doctrines that the whole science of modern jurisprudence rested upon them; that any
(1) PLD 1977 SC 657 (2) PLD 1958 SC (Pak.) 533
(3) PLD 1972 SC 139 abrupt political change not within the contemplation of the Constitution constitutes a revolution, no matter how temporary or transitory the change, if no one has taken any step to oppose it; that the rule of international law with regard to the recognition of States can determine the validity also of the States' internal sovereignty. It was found that these assumptions were not justified and correct. Distinction was drawn between Martial Law as a machinery for the enforcement of internal order and Martial Law as a system of military rule of a conquered or invaded alien territory. It was held that the first category of Martial Law can displace the civil Government only where a situation has arisen in which it has become impossible for the civil Courts and other civil authorities to function. The imposition of Martial Law does not of its own force require the closing of the civil Courts or the abrogation of the authority of the civil Government. A similar question arose in the case of Begum Nusrat Bhutto in regard to the validity of the present Martial Law. It was held that although the armed forces are undoubtedly in tentative control of the administration, it is neither the intention of the Martial Law Authorities nor they have established a new legal order in supersession of the existing legal order. The President of Pakistan and superior judiciary continue to function under the Constitution subject to any limitation placed on their jurisdiction. It was pointed out (page 716 of the report) that the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, President's Order or Ordinance.
16. This was no doubt clarified in Mr. Zulfikar Ali Bhutto v. The State (1), that the responsibility for the relevant action, its methodology and procedural details must rest on the Martial Law authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by the Court in Begum Nusrat Bhutto's case, while spelling out the powers which may be exercised by the Chief Martial Law Administrator or the President of Pakistan. But this clarification does not derogate from the principle of Superior Courts having the power of supervisory jurisdiction under Article 199 of the Constitution. Such being the case the Martial Law Regulations and Orders can be given an overriding force excluding the jurisdiction of the Superior Courts only if they expressly exclude the jurisdiction of those Courts and such exclusion is within the ambit of the principles laid down at page 716 of the report in the case of Begum Nusrat Bhutto which are as follows:- "(iii) That the Chief Martial Law Administrator having validly assumed power by means of an extra- Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely:-
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people;
(1) PLD 1978 SC 40
(e) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution;
(iv) That these acts, or any of them may be performed or carried out by means of Presidential Orders, Ordinance, Martial Law Regulations or Orders, as the occasion may require."
' Even if, therefore, the jurisdiction of the superior Courts is taken away, it is open to this Court to test such ouster on the principle of necessity as evolved in this classic judgment. A fortiori any provision which by remote F implication can take away the jurisdiction of these Courts cannot be countenanced. In my view therefore, the High Court has jurisdiction under, section 498, to grant bail before arrest.
17. All the three cases are fit for grant of bail before arrest. In the cases registered under M. L. R. No, 33 the allegation as stated above is that a number of persons had collected to receive Pir Sahib of Pagara, President of Muslim League at a particular spot and this reception did not contravene any of the provisions of the M. L. R. They had also gone to participate in a meeting which was not in contravention of M. L. R. No,
33. Now the only allegation is that they had gone one after the other from the G place of reception to the site of meeting and thus assumed the form of a procession. It was not a procession formed intentionally but owing to the will on the part of each participant in the reception to arrive at the site of the meeting along with Pir Sahib of Pagara and as such it was not a procession in the sense in which that word is used in M: L. R.
33. The general principles of pre-arrest bail laid down in Muhammad Hayat v. Chief Settlement and Rehabilitation Commissioner (1), Muhammad Ayub v. Muhammad Yaqub (2), Sadiq Ali v. The State (3), The Crown v. Khushi Muhammad (4), Muhammad Bashir v. Crown (5) and Hdayat Ullah Khan v.
The Crown (6) were summed up in Sh. Zahoor Ahmad v. The State (7), as follows:- "(a) that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner;
(b) that the petitioner should physically surrender to the Court;
(c) that on account of ulterior motives, particularly on the part 'of the police, there should he apprehension of harassm ent and undue irreparable humiliation by means of unjustified arrest;
(d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr. P. C.
Would have to be kept in mind."
' I will add that if in a particular case even though there is no ulterior motive but the case be of the nature that no offence is made out on the allegation and the arrest might only cause harassment and humiliation, that should
(1) PLD 1970 Lah. 679 (2) PLD 1966 SC 1003
(3) PLD 1966 SC 589 (4) PLD 1953 FC 170
(5) PLD 1952 Lah. 253 (6) PLD 1949 Lab. 21
(7) PLD 1974 Lah. 256 also be a ground for bail before arrest. This condition is prima facie fulfilled in the present case.
17. The other case appears to be a case in which the conditions summed up in the case of Sh.
Zahoor Ahmad are applicable. In view of this I passed the following order on 21-8-79:- "A question arose in this case whether the High Court has jurisdiction to grant bail before arrest in cases triable by Military Courts. I have heard arguments on this question. For reasons to be recorded later I hold that the High Court has jurisdiction to grant bail before arrest in cases triable by Military Courts. The interim bail granted to the petitioner is confirmed."
' The order is based on the grounds given above.