' By this order, I propose to dispose of the preliminary objection as to the jurisdiction of this Court to grant bail under section 498, Cr. P. C. In cases registered under the Offences Against Property (Enforcement of Hodood) Ordinance VI of 1979 and Offence of Zina (Enforcement of Hadood)
Ordinance VII of 1979 raised in the following three criminal miscellaneous petitions :- Cr. M. No, 1938/B of 1980 Muhammad Ishaq v. State, Cr. M. No, 2014/B - of 1980, Muhammad Rafiq v.
State and Cr. M. No, 2262/B of 1980 Ghulam Rawl v. State.
2. For the purposes of disposal of this preliminary objection, the facts that may be necessary are that Cr. M. No, 1938/B of 1980 and Cr. M. No, 2262/B of 1980 arise out of cases registered against the petitioners therein under sections 10 and 11 of Zina (Enforcement of Hadood) Ordinance, VII of 1979 and under section 6 ibid respectively; whilst Cr. M. No, 2014/B of 1980 has arisen out of a case registered against the petitioner therein under section 17 of Offences Against Property Enforcement of Hudood) Ordinance VI of 1979.
3, A preliminary objection having been raised on behalf of the State in all these cases that the offences committed being under special enactments triable by a forum provided under the Special Statutes and appeals whereof also lie to the Federal Shariat Court and not to the High Court this Court cannot grant bail under the powers, conferred upon it under sections 497 and 498, Cr. P. C. In view of the importance of the point involved I issued notice to the learned Advocate- General to appear in these cases.
4. The learned Advocate-General contended that the application of the Criminal Procedure Code to Ordinances VI and VII of 1979 under which the offences were allegedly committed by the petitioners is subject to the Special Statutes as provided by section 5(2) of the Code itself and that subsection (2) of section 1, Cr. P. C. Provides that nothing contained in the Code shall affect any Special or Local Law or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force and as such bail could only be granted by the forums which could try the case or hear the appeal.
5. The learned Advocate-General also argued that both the above-mentioned Ordinances specifically provide that cases falling under them shall be tried by a Sessions Judge and that appeals therefrom shall lie to the Federal Shariat Court only. Continuing his argument he submitted that bail having been refused by the orders of Sessions Judges the only remedy available to the petitioners would be to go in appeal to the Federal Shariat Court against the said orders.
6. The learned Advocate-General referred to Article 203-G of the Constitution as added by Constitution (Amendment) Order-(President's Order No, 1 of 1980) to contend that the jurisdiction of the High Court has been dxcluded to entertain any proceeding or exercise any power or jurisdiction in respect of the matter in question as it falls within the jurisdiction of the Federal Shariat Court.
7. In support of his contention that where cases are triable under special enactments the power to grant bail cannot be exercised by the High Court, the learned Advocate-General placed reliance on the judgment delivered by his Lordship the Chief Justice in Ch. Zahoor Elahi v. The State (1).
(1) PLD 1977 SC 273
8. On the other hand, Ch. Mushtaq Ahmad Khan, Advocate the learned counsel for the petitioner in Cr. M. No, 2014/B of 1980 submitted that the provisions of sections 497 and 498, Cr. P. C. Are couched in the widest possible language and confer a plenary jurisdiction on the High Courts to grant bail in any case whether there be appeal on conviction or not. He submitted that there is no bar of jurisdiction in the special statutes whereby the High Courts have been deprived to grant bail in cases registered under those statutes.
9. The learned counsel further contended that under Ordinance VT of 1979 as amended by Ordinance XIX of 1980 appellate power has been conferred on the Federal Shariat Court only to hear appeals against the orders passed under sections 9 and 17 of the Ordinance and as such the said Court can only suspend the sentence under section 426, Cr. P. C. After conviction and on appeal having been filed but there is no procedure provided for grant of bail by it during investigation and trial of a case. He argued that in the absence of this procedure and even if procedure had been laid down the jurisdiction of the High Court to grant bail at the investigation stage could not be ousted by mere implication.
10. Referring to the bar of jurisdiction contained in Article 203-G of the Constitution as added by Constitution (Amendment) Order No, 1 of 1980, the learned counsel submitted that this bar essentially relates to jurisdiction of the High Courts as was exercised by its Shariat Benches.
11. He also argued that the bar of jurisdiction and conferment of exclusive jurisdiction on the Federal Shariat Court is only relateable to the jurisdiction of the Federal Shariat Court to declare laws as repugnant. To Islamic injunctions and at best to the extent of its jurisdiction to hear appeals which lie to that Court. Reliance was placed by the learned counsel in support of his contentions that the power of the High Court to grant bail remains intact notwithstanding the position that the offence has been committed under the aforementioned special statutes on the following two cases Ch. Zahoor v. The State PLD 1977 SC 273 and Jamil Ahsan Gill v. The State L IJ 1980 Lah.184.
12. The learned counsel for the petitioner in Cr. M. No, 2262/R of 1980, atom .Rasool v. State and Cr. M.
No, 19381B of 6'80, Muhammad Ishaq v. State adopted the arguments of the learned counsel for the petitioner in Cr. M. No, 2014/B of 1980 Muhammad Raliq v. State. The only addition made by Mr. S. M.
Masud Advocate was that this Court can la any case grant bail, at this stage, ex debito justitiae until it is finally decided by the trial Court as to whether the alleged offence falls under the special statute on the accused is to be convicted and punished under some other law. He placed reliance on Muhammad Naeem v. The State (1).
13. The controversy required to be resolved converges to the following:- "Whether the High Court has the jurisdiction to grant bail in exercise of the powers conferred upon it under the Code of Criminal Procedure
(1) 1980 P Cr. L J 377 and more specifically by section 498 (ibid) in cases arising under the Hudood Ordinances notwithstanding that appeal on conviction therein lies to the Federal Shariat Court and not to the.
High Court?
14. In order to fully appreciate the aforesaid controversy the provisions of law that may fall for consideration and interpretation are sections 1(2), 5(2), 426 and 498, Cr. P. C., Articles 203-D and 203-G of the Constitution of Pakistan as added by Constitution (Amendment) Order No, 1 of 1980, Article 203-DD of the Constitution as added by the Constitution (Second Amendment) Order No, 4 of 1980 and sections 24 and 20 of Ordinances VI and VII respectively of 1979 as amended respestively by Ordinances XIX and XX of 1980. For facility of reference the aforementioned provisions are reproduced hereunder "203-D. Powers, jurisdiction and functions of the Court.-(1) The Court may, on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, hereinafter referred to as the injunctions of Islam.
(2) If the Court decides that any law or provision of law is repugnant to the Injuctions of Islam, it shall set out in its decision.
(a) the reasons for its holding that opinion ; and
(b) the extent to which such law or provision is so repugnant ; and specify the day on which the decision shall take effect."
"203-G. Bar of jurisdiction.-Save as provided in Article 203-F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court.
' 203-DD. Further jurisdiction of the Court.-The Court shall have such other jurisdiction as may be conferred on it by or under any law.
' Section 1(2), Cr. P. C.-It extends to the whole of Pakistan ; but in the absence of any specific provision to the contrary, nothing herein con tained 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."
' Set /ion 5(2).-All offences, under any other law shall be investigated, be inquired into, tried, and otherwise dealt with according to the same provisions, but 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 426, Cr. P. C.--(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail on his own bond.
(1-A) An Appellate Court shall, unless for reason to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced. Section 498, Cr. P. C.- The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive ; and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail or that the bail required by a Police Officer or Magistrate be reduced.
' Section 24 of Ordinance VI of 1979, as amended up-to-date.-(1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898 (Act V of 1898) shall apply, mutatis mutandis, in respect of cases under this Ordinance.
' Provided that if it appears in evidence that the offender has committed a different offence under any other law he may if the Court is competent to try the offence and to award punishment therefor be convicted and punished for that offence.
' Provided further that an offence punishable under section 9 or section 17 shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order under either of the said sections shall lie to the Federal Shariat Court.
' Provided further that a trial by a Court of Session under this Ordinance shall ordinarily be held at the Headquarters of the Tehsil in which the offence is alleged to have been committed.
(2) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) relating to confirmation of the Sentence of Death shall apply mutatis mutandis to confirmation of sentences under this Ordinance.
(3) The provisions of subsection (3) of section 391 or section 393 of the Code of Criminal Procedure, 1898 (Act V of 1898) shall not apply in recpect of the punishment of whipping awarded under this Ordinance.
(4) The provisions of Chapter XXIX of the Code of Criminal Procedure, 1898 (Act V of 1898) shall not apply in respect of punishments awarded under section 9 or section 17 of this Ordinance.
' Section 20 of Ordinance VII of 1979, as amended up-to-date.--(1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) hereinafter in this section referred to as the Code shall apply Mutatis Mutandis in respect of cases under this Ordinance : ' Provided that if it appears in evidence that the offender has committed a different offence under any other law he may, if the Court is competent to try that offence and award punishment therefor, be convicted and punished for that offence : ' Provided further that an offence punishable under this Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court ' Provided further that a trial by a Court of Session under this Ordinance shall ordinarily be held at the Headquarters of the Tehsil in which the offence is alleged to have been committed.
(2) The provisions of the Code relating to the confirmation of the Sentence of Death shall apply mutatis mutandis to sentences under this Ordinance,
(3) The provisions of sections 198, 199, 199-A or section 199-B of the Code shall not apply to the cognizance of an offence punishable under section 15 or 16 of this Ordinance.
(4) The provisions of subsection (3) of section 391 or section 393 of the Code shall not apply in respect of the punishment of whipping under this Ordinance.
(5) The provisions of Chapter XXIX of the Code shall not apply in respect of punishments awarded under section 5 or section 6 of this Ordinance.
(6) In the Code, section 561 shall stand repealed."
' A perusal of the provisions of the constitutional amendments brought about by Constitution (Amendment) Order No, 1 of 1980 and Constitution (Second Amendment) Order No, 4 of 1980, as reproduced hereinabove, would show that initially the jurisdiction of the Federal Shariat Court was as conferred by Article 203-D of the Constitution and it was to the effect that on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government the Federal Shariat Court could examine and decide the question whether any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet.
15. The bar of jurisdiction is contained in Article 203-G and ousts the jurisdiction of every Court or Tribunal, including the Supreme Court and the High Court as regards the power or jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court. Till the promulgation of the Constitutional (Second Amendment) Order No, 4 of 1980, therefore, the ouster of jurisdiction of the High Court was to the extent of the jurisdiction of the Federal Shariat Court as contained in Article 203-D of the Constitution.
16. The Constitution (Second Amendment) Order No, 4 was promulgated on 21-6-1980 and by virtue of Article 203-DD it was provided that the Federal Shariat Court shall have such other jurisdiction as may be conferred on it by or under any law.
17. Simultaneously, on the same date, viz. 21-6-1980, Ordinances XIX and XX of 1980, i,e, Offences Against Property (Enforcement of Hudood Amendment) Ordinance, 1980, and Offence of Zina (Enforcement of Hudood) (Amendment) Ordinance, 1980 were promulgated and sections 24 and 20 of Ordinances VI and VII of 1979 respectively were amended so as to make the trial of offences under the said Ordinances to be conducted by the Court of Session and the appellate jurisdiction against the mentioned orders of the Court of Session was conferred on the Federal Shariat Court.
By these amendments therefore the High Court's jurisdiction to entertain and hear appeals from orders passed by the Court of Session in cases tried by it under the Hudood Ordinances was also ousted by specific provisions. It also implied that the High Court could not exercise the powers conferred on it by section 426, Cr. P. C. To suspend the sentence awarded by a Court of Session in cases tried by it under the Hudood Ordinances as power to suspend sentence is ancillary to the power to hear appeal. In so far as the above ouster of jurisdiction of the High Court is concerned, the same is brought about by specific provisions.
18. What is to be examined now is whether the jurisdiction of this Court under section 498, C. P. C.
Has been ousted by specific provision or by necessary intendment ?
19. In so far as the ouster by specific provision is concerned, I have not hesitation in saying that it has not been so done.
20. Let us now examine whether there is ouster of jurisdiction of the High Court by implication or necessary intendment.
21. Section 498, Cr. P. C., as reproduced above, is couched in a language of widest amplitude. This provision confers power on the High Court to admit to bail any person in any case whether there be an appeal on conviction or not and also reduce the amount of bail if any required by a police officer or a Magistrate. In Zahoor Elahi v. The State his Lordship Mr. Justice Salahuddin as he then was interpreting section 498, Cr. P. C., at page 323, of the said judgment, observed thus "Section 498, is a Code by itself and deals with the powers of the High Court or the Court of Session to grant bail."
22. Again, in the same judgment, at pages 356/360, his Lordship Mr. Justice Muhammad Gul of the Supreme Court as he then was observed as under: "The argument, however, ignores the fact that in matter of bail the powers of the High Court are manifold. On the original side, it has the power of the trial Court under section 497, Cr. P. C. Under section 498 ibid it has powers as a superior Court which are concurrent with those of the subordinate Courts.
' Thus, it will be seen, a High Court under Criminal Procedure Code has variety of powers for the relevant purpose. Power exerciseable under section 498, Cr. P. C. Being concurrent with the subordinate Court can be invoked directly.
23. From the above, it follows that the powers of the High Court under section 498, Cr. P. C. Are of fundamental nature and can be exercised at any stage of a case, i,e, from the stage of investigation till the conclusion of the trial.
24. With this idea in the background what is now required to be seen is whether the jurisdiction of this Court under the aforementioned provision of section 498, Cr. P. C. Has in any manner been curtailed or ousted as regards cases triable under the Hudood Ordinances?
25. Section 24 of Ordinance VI of 1979 and the corresponding section 20 of Ordinance VII of 1979 as amended up-to-date and reproduced hereinabove apply the provisions of the Code of Criminal Procedure mutatis mutandis in respect of cases under the respective Ordinances.
26. Second proviso to section 24 of Ordinance VI of 1979 which has been added by the Amending Ordinance XIX of 1980 takes away the jurisdiction of the High Court to hear appeals in cases arising under the aforesaid Ordinance VI of 1979. Similarly second proviso to section 29 of Ordinance VII of 1979 which has been added by Amending Ordinance XX of 1980 takes away the jurisdiction of this Court to entertain or hear appeals in cases falling under Ordinance VII of 1979.
27. Again, the provisions of subsection (3) of section 391 or section 393, Cr. P. C. And of Chapter XXIX of the Code of Criminal Procedure have been made inapplicable by virtue of subsections (3) and
(4) of section 24 of Ordinance VI of 1979 to the proceedings under the said Ordinance.
28. Correspondingly section 20(3) of Ordinance VII of 1979 makes sections 198, 199, 199-A or section 199-B of the Code inapplicable to the cognisance of an offence punishable under section 15 or 16 of the Ordinance whilst by virtue of subsections (4) and (5) of section 20 of Ordinance VII of 1979, the provisions of subsection (3) of section 391 or section 393 of the Code as also the provisions of Chapter XXIX of the Code shall not respectively apply in respect of the punishment of whipping awarded under the Ordinance and in respect of punishments awarded under sections 5 and 6 of the Ordinance. Subsection (6) of section 20 of. Ordinance VII of 1979 has also repealed section 561 of the Code.
29. On a true construction of the provisions of section 24 of Ordinance VI of 1979 and of section 20 of Ordinance VII of 1979 as amended up t date read with the provisions of Articles 203-D, 203-G and 203-DD o the Constitution, it emerges that the ouster of jurisdiction of the High Court is intended only to the extent it finds specific mention in sections 24 and 2 of the respective Ordinances. This has to be interpreted as such because the specific mention of some of the provisions of the Code of Criminal Procedure in the respective provisions of the aforementioned Ordinances so as to b inapplicable to the proceedings under the Ordinances shall have the effect of excluding the jurisdiction of the High Court as exerciseable by it under the said provisions only and the exclusion will obviously not affect the jurisdiction of the High Court under other provisions of the Criminal Procedure Code.
30. Yet another factor which supports my above view that the High Court's jurisdiction to grant bail under section 498, Cr. P. C. Is not ousted c in respect of cases registered under Hudood Ordinances during the investigation and trial thereof is the provision of section 5(2), Cr. P. C. Which provides that all offences under any other law shall be investigated, be inquired into, tried etc. As provided by the Code of Criminal Procedure 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 There being no specific provision in the Hudood Ordinances in conflict with the provisions of the Criminal Procedure Code in regard to grant of bail the provisions of the Criminal Procedure Code in the matter of bail shall, therefore, continue to be operative in respect of cases registered under the said Ordinances.
31. As regards the contention raised by the learned Advocate-General that section 1(2) of the Code of Criminal Procedure ousts the jurisdiction of the High Court in matters of bail in cases registered under the Hudood Ordinances, suffice it to say that the said provision has to be read along with section 5(2) of the Code. Subsection (2) of section 1 of the Criminal Procedure Code provides that the Code shall not apply to a special or local law unless there is a specific provision in this behalf, whilst section 5(2) lay down that to all offences under special or local law the procedure for investigation, inquiry or trial laid down in the Code will apply subject, of course, to the special enactment. The conjunctive reading of the above two provisions, therefore, leads to the conclusion that if the special or local law creates offences and also provides procedure to deal with the offences, the procedure so provided has to be observed and not the procedure as laid down in the Criminal Procedure Code. More specifically it would mean the following
(i) that in respect of all matters covered by special or local law the Criminal Procedure Code is not applicable unless there is a specific provision to that effect ;
(ii) that an offence under special or local law is to be investigated, inquired into and tried in accordance with the procedure laid down in the Criminal Procedure Code unless the special or local law provides. For a different procedure.
32. Now, the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 being special laws and the Code of Criminal Procedure having been made applicable to the proceedings thereunder, respectively by section 24 and section 20 of the said Ordinances and the exclusion of the provisions of the Code being specified the provisions of the Code which have not been excluded and inter alia include section 498, Cr. P. C. Will obviously be applicable to cases registered under the Hudood Ordinance.
33. Apart altogether from the above position, further support to my view is lent by an amendment promulgated by Ordinance X of 1979 whereby the Second Schedule to the Code of Criminal Procedure was amended so as to add offences against other laws and in column No, 2 which gives the offences and punishments, the punishments, given are those which can be awarded in cases tried under the Hudood Ordinances.
34. While I am on the provisions embodied in the Second Schedule to the Code, it may be pertinently mentioned that the entries in the Schedul itself pertaining to offences under special statutes lend strong support to the conclusion arrived at by me that even though offences in a given case are created by special statute the matter of bail is nevertheless governable b the Criminal Procedure Code. From what has gone before it therefor follows that the Legislature clearly intended to keep the power and jurisdiction of the High Court under section 498, Cr. P. C. Alive and exerciseable by is in all cases registered under the Hudood Ordinances at the stages of investigation and till the conclusion of the trial. This does not appear to be without purpose and has a wisdom behind. In all cases registered under the Hudood Ordinances it is not necessary that those will be tried only for offences which fall thereunder. The first proviso to sections 24 and 20 of Ordinances VI and VII respectively provide that if it appears in evidence that the offender has committed a different offence under any other law he may if the Court is competent to try the offence and to award punishment therefor be convicted and punished for that offence. It is thus obvious that after the registration of the case the Court which has taken cognizance of the matter has to determine first whether the case is triable under any of the Hudood Ordinances or under the ordinary law ? Till that stage therefore the jurisdiction of the High Court under section 498, Cr. P. C.
Had in any case to be kept intact by the Legislature.
35. Considering the matter in the light of discussion made above and in view of the well-settled principle that the jurisdiction of a superior Court is not taken away unless it is so done specifically or by necessary intendment, I have no hesitation in holding that the jurisdiction of this Court under section 498, Cr. P. C. Has not only been not ousted by any specific provision or by necessary intendment, but, on the contrary, it has been kept alive and intact by the Legislature for the reasons as enumerated above.
36. This answers the preliminary objection raised in all these three cases. Each of the three cases will now be dealt with on merits separately. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.