1. ' NAS1M HASAN SHAH, J.-The question involved in this reference is whether this Court while granting leave to appeal against an order of acquittal passed by the High Court has the power to order the arrest of the acquitted persons, pending the disposal of the appeal. This question has arisen in the following circumstances :- ' A Division Bench of the Peshawar High Court while hearing Criminal Appeal No, 30 of 1976 acquitted the two appellants before it, namely, Saeed Mian and Kaki Gul of the charges of murdering their relative and a co-villager, Abdul Wadood, by its order dated 24th June, 1977. Both of them had been convicted in th,s behalf by the learned Sessions Judge Swat. Saeed Mian was sentenced to death whereas Kaki Gul was awarded life imprisonment.
2. ' Aggrieved by the order of the High Court both the complainant, Mian Said Baghdad as also the State moved this Court by separate petitions (Cr. P. 39-P/77 and Cr. P. 45-P/77 respectively) to challenge the order of acquittal passed by the High Court. A Bench of this Court after hearing the learned counsel of the petitioners in both petitions and perusing the available record came to the conclusion that this was a fit case where the evidence required reappraisal in order to satisfy itself whether the acquittal of the two respondents was in accord with the principles governing the safe administration of criminal justice. Leave was accordingly granted in both the petitions and non- bailable warrants of arrest returnable to the District Magistrate Swat also issued, against both of them, vide order dated 10th April, 1978.
3. ' Both the respondents were arrested in pursuance thereof. Consequently, they moved a petition in this Court (Cr. Misc. P. No, 27-R of 1979) praying to be released on bail during the pendency of the appeal. A Bench of this Court consisting of three Judges (Muhammad Akram, Abdul Kadir Shaikh and Shafiur Rahman, JJ.), being of the view that Kaki Gul was entitled to be released on bail during the pendency of the appeal, granted him bail. However, it was not inclined to accept the prayer of Saeed Mian for bail taking into account the principles governing such matters. Mr. Mahmud Ali Kasuri, learned counsel representing the applicants for bail (and the respondents in the appeal) then raised a contention on a different level. He contended that this Court while considering an appeal against an order of acquittal passed by the High Court did not have any power to issue a warrant for the arrest of the acquitted accused person. Since the question, according to the Bench hearing the matter, required consideration by a larger Bench, hence this reference.
4. ' The argument in support of the contention raised and which was repeated before us is that no such power is conferred on this Court either by the Constitution or by law. He pointed out that an express provision was made in the Criminal Procedure Code, in section 427, to empower the High Court to exercise such a power, namely, to issue a warrant for arrest of the acquitted accused in an appeal against acquittal presented under section 417, Cr. P. C. So far as the Supreme Court was concerned the only provision authorising the issue of interim orders, namely, Rule. II, Order XXIII of the Supreme Court rules was of no avail because it applied only to those cases in which either the sentence of imprisonment or fine was passed by the High Court and was not applicable in cases where the order passed was one of acquittal. This, he submitted, was apparent from the terms of the said rule, namely :- "Pending the disposal of any appeal under this order the Court may order that the execution of the sentence or order appealed against be stayed on such terms as the Court may think fit."
5. ' Mr. Mahmud Ali Kasuri, while reiterating the above contention, submitted in elaboration thereof that all laws which dealt with taking away of liberty, were to be strictly construed. Every arrest or detention is illegal unless authority is shown for such action. He relied upon the dictum of the Lahore High Court in Surat Parkash v. Emperor (1) to the effect that all deprivations of liberty are illegal unless sanctified by law. In support of his submission he drew our attention to the third schedule to the Code of Criminal Procedure wherein the section of the code is specifically referred to whereunder a Magistrate can order the detention or arrest of the offender in stated circumstances. In this connection he again referred us to section 427 of the Cr. P. C. Which authorised the High Court to issue warrants of arrest of an accused pending the disposal of an appeal against acquittal. In contrast he submitted that there was no provision in the Code of Criminal Procedure or the Rules of the Supreme Court conferring upon it a similar power in a case where leave to appeal has been granted against an order of acquittal. The only provision which could conceivably be invoked was rule 6, Order XLIX of the Rules which laid down that-- "nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
6. ' As for the Constitution itself although leave to appeal could be granted against the judgment of a High Court ordering the acquittal of the accused, the Supreme Court could not order that he be arrested pending its disposal. Article 187 of the Constitution, which states :- "Subject to clause (2) of Article 175, the "Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production 'of any document,"
7. ' Merely permitted the issuance of orders for securing the attendance of any person. This power did not include the -power of ordering his arrest. It implied the power to issue summons or, at best, bailable warrants.
8. ' Mr. S. M. Zafar, on behalf of the private complainant, and Mr. Safdar Hussain, learned Advocate in the State appeal, controverted this thesis, in reply. According to Mr. S. M. Zafar, Article 187 of the Constitution dealt with the power of the Supreme Court to issue orders of a processual type as distinguished from the exercise of jurisdiction in different circumstances which were enumerated in Articles 184 to 186 thereof ; that the power of securing attendance of any person included the power of ordering his arrest to ensure that he remained in attendance during the pendency of the appeal and was available to suffer the final order. The same result. According to him, flowed from the combined reading of Order XXIU, rule 11
(1) AIR 1948 Lab. 84 ' and Order XLIX. Rule 6 of the Supreme Court Rules. Referring to rule 11 of Order XXIII his point was that this Court could under it order inter alia, that the order appealed against be stayed "on such terms as the Court may think fit", this power included the situation not only of suspending the sentence but also thatof acquittal by the High Court on terms that the acquitted accused shall be arrested until the conclusion of appeal proceedings in this Court and that this order might be necessary for the "ends of justice or to prevent abuse of the process of the Court" for which purpose orders can be passed under rule 6, Order XLIX in order to ensure that the sentence passed by this Court is eventually carried out.
9. ' It was secondly contended that when leave was granted in a petition praying for setting aside the order of acquittal passed by the High Court and restoring the order of the Sessions Judge this Court had the power to order that the respondent may be arrested as an interim measure. This was possible because there was no dispute that this Court could finally sentence him to death or to a term of imprisonment. If this could be done finally, the Court had the "incidental or ancillary" power to order his arrest in the meanwhile. In support of this submission reference was made to three decisions of this Court Syed Sardar Shah Bokhari v. The Chief Justice & Judges of the High Court of West Pakistan (1), wherein it was held "that the power to direct ad interim suspension of the licence of an Advocate against whom an inquiry is pending is really ancillary to the power of punishment, after final adjudication and therefore the High Court should be deemed to have the inherent power to pass such an order in an appropriate case", Commissioner, Khairpur Division & another v. Ali Sher Sarki (2), wherein the contention was that the power to suspend the operation of an order passed by the Tribunal under sections 13, 14 and 16 of the West Pakistan Control of Goondas Ordinance has not been specifically conferred on the appellate authority hearing appeal under section 18 of the Ordinance and, therefore, pending appeal, the appellate authority is not possessed of power to stay the execution of an order brought in appeal before him : it was held that in view of the fact that the Commissioner under section 18 of the Ordinance could discharge the petitioner this would show that the power to suspend the operation of an order passed by a Tribunal under sections 13, 14 and 16 is ancillary to the power conferred upon the Commissioner by section 18 to discharge the person .Complained against on final adjudication, and. Said Employees'
10. Social Security Institution and another v. Adamjee Cotton Mills Ltd. (3), wherein it was held that the power to grant interim relief was ancillary or incidental to the main appellate jurisdiction expressly conferred by the statute.
11. ' Mr. Safdar Hussain appearing in the State appeal, in the first instance, stated that he adopted the arguments of Mr. S. M. Zafar and added that order directing the issuance of the non-bailable warrants was also possible under Article 187 of the Constitution and in this connection referred us to the decision of this Court in the Controller of Examination, Board of Intermediate & Secondary Education, Lahore v. Mohammad Yaqub (4), Islamic Republic of Pakistan v. Amjad Ali Mirza (5) and Ch. Zahur Ilahi v. The State (6). According to the learned counsel this Court had the
(I) PLD 1965 SC 479 (2) PLD 1971 SC 242
(3) PLD 1975 SC 32 (4) PLD 1975 SC 69
(5) PLD 1975 SC 182 (6) PLD 1973 SC 273 ' power to issue all such directions, orders and decrees as may be necessary for doing complete justice in the case and this would include issuance of directions for causing the arrest of acquitted respondents in suitable cases.
12. ' He also submitted that an appeal being a continuation of the original cause and that in the exercise of the appellate jurisdiction the appellate authority can pass all those orders which the authority trying the original cause could pass, this Court could order the arrest of the acquitted respondent insofar as the High Court could have directed their arrest. Such power could, therefore, be exercised by the Supreme Court after granting leave, to appeal. In this connection, reliance was placed on Messrs Shahtnir Transport Company Ltd. v. Member (Colonies and Transport) Board of Revenue, West Pakistan and another (1) and Hidayatullah Khan v. Board of Revenue Lahore (2).
13. Reference was also made to this Court's decision in Noora v. State (3), wherein it was held that in the exercise of the appellate criminal jurisdiction no analogy subsisted between the Supreme Court on the one hand and the Privy Council or Federal Court on the other. The Supreme Court, at the apex of the judicial system in the country was armed with all powers of the Court of appeal without any limitation whatsoever. The same view in a somewhat different context was expressed in' Mohammad Ismail v. The State (4).
14. ' It was lastly submitted that the contention of Mr. Mahmud Ali Kasuri was, in fact, an attempt to secure a review of the order dated 10th April, 1978 whereby while granting leave to appeal against the order of acquittal of the respondents non-bailable warrants for the arrest of Saeed Mian were, inter alia, issued. As the conditions for review as set out in Article 188 of the Constitution read with the provisions of Order XXVI, rule 1 of the Supreme Court Rules were not satisfied, hence this petition was misconceived.
15. ' In reply, Mr. Mahmud Ali Kasuri. Drew our attention to the amendment made in the Article 187 of the Constitution (by the Constitution Fifth Amendment, Act, 1976) whereby the power to do complete justice by this Court was made subject to the provisions of clause (2) of Article 175. Article 175 (2) of the Constitution provides that- "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."
16. ' Thus, according to Mr. Mahmud Ali Kasuri, this Court did not have unlimited power of passing any orders or directions for what, in its view, was for doing "complete justice" in any case but that each -such order should be backed either by the authority of the Constitution or that of any law and as there was no provision either in the Constitution or in any Taw authorising the arrest or detention of an accused acquitted by the High Court, after an appeal had been admitted against the order of his acquittal by this Court, no such order could be passed.
17. ' We have given our full consideration to the submissions made by the parties and we agree with Mr. Mahmud Ali Kasuri that the existence of a provision like section 427 of the Criminal Procedure Code was- considered
(1) PLD 1964 Lah. 710 (2) PLD 1966 Pesh. 1
(3) PLD 1973 SC 469 (4) P p 1969 SC 241 ' necessary because the legislature considered and rightly so that during the pendency of an appeal against an order of acquittal in the High Court it may be necessary in some cases despite the reinforcement of the presumption of innocence by an order of acquittal passed in favour of the acquitted accused that he should rather be detained than remain free. The late Mr. Manzur Qadir as C. J; of the Lahore High Court in Mohammad Iqbal v. The State (1) summed up the situation in which an accused should be allowed bail and those in which this facility could not be allowed, in these words :- "A person who has not been found guilty is presumed to be not guilty and, therefore, must be treated as such. This is the first requirement. The process by which the guilt of a person is to be found, and in case that guilt is established he is to be brought to punishment, must not be allowed to be defeated. This is the second requirement. Persons who are desperate and feel they have nothing further to lose by committing more offences should not be allowed to be in a position to do so. This is the third requirement.
18. ' From the first it follows that an accused person should not be deprived of his liberty during his trial ; from the second, that it must be ensured that he faces his trial and does not defeat the inquiry into the allegations against him, by running away or committing suicide, or by destroying or suppressing the evidence against him ; from the third, that he must not be let loose on society if he is so placed as to think that he might just as well hang for a sheep as for a lamb."
19. In some cases, of which the Court must be the judge, the interest of the society can require that an accused although he may have been acquitted by the High Court should in the interest of justice be ordered to be detained where leave to appeal challenging his acquittal has been allowed by this Court. By Article 187 a power is conferred on this Court to issue orders or directions for doing complete justice in any case or matter pending before it, including making an order for the purpose of securing attendance of any person. This provision when read with Order XLIX, rule 6 of the Supreme Court Rules authorising the Court to make such orders as may be necessary for the ends of justice does seem to us to confer sufficient powers on this Court to order the detention, in suitable cases, of persons who are acquitted by the High Court but against which order leave to appeal has been granted. Such a direction may be necessary to ensure that the said person is inter alia, available to suffer the consequence of the judgment if adverse to him in the said appeal.
20. Mr. Mahmud All Kasuri conceded before us that bailable warrants could be issued in this regard. If such a power exists then the question whether in the circumstances of a particular case bailable warrants should issue or non-bailable warrant issue would be a matter of degree and not of kind suggestive of lack of jurisdiction on the part of this Court to act in such manner as it considers proper in any given case.
21. ' At this juncture, it may be useful to refer to the meaning of the word "bail" in Aiyer's Law Lexicon (1940) Edition, page 109 wherein it is stated :- "Bail.--To set at liberty a person arrested or imprisoned, on security
(1) PLD 1963 Leh. 279 ' being taken for his appearance on a day and a place certain, which security is called "bail".
22. ' Is used in our common law for the freeing or setting at liberty of one arrested or imprisoned upon any action, either civil or criminal,or surety taken for his appearance at a day and place certain. The reason why it is called bail, is because by this means, the party restrained is delivered into the hands of those that bind themselves for his forthcoming, in order to a safe keeping or protection from prison ; and the end of bail is to satisfy the condemnation and costs, or render the defendant to prison". (Tomlin's Law Dic).
23. "The word 'bail' is used both as a verb and as a noun. As a verb it means to deliver an arrested person to his sureties upon their giving security for his appearance, at the time and place designated, to submit to the jurisdiction and judgment of the Court. In its substantive sense it may be defined as the sureties into whose custody the arrested person is delivered and who are considered as having control of his person."
24. ' Blackstone defines bail as "a delivery or bailment, of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance ; he being supposed to continue in their friendly custody, instead of going to goal".
25. ' While the giving of bail, as a general rule, restores a person to his freedom, yet technically he is considered as being delivered into the custody of his sureties, they being jailors of his own choosing who have control and dominion over him."
26. ' We may now turn to section 499 of the Criminal Procedure Code which provides that :- "(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise: directed by the police officer or Court, as the case may be.
(2) If, the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge."
27. ' Reference may also be made to Form No, XXV in Schedule V of the Criminal Procedure Code which also shows that bail is taken for securing attendance or appearance of an accused person. When, therefore, Article 187 of the Constitution lays down that:- "(1) The Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document.
(2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province. (underlining is ours).
28. ' It is clear that the Constitution has by its own terms conferred upon the Supreme Court the power to procure attendance of any person. This conferment by its very nature includes the power that may be exercised in such manner as the Court may consider proper with reference to an appeal of which it is competently seized under Article 185 (3), namely, appeal by special leave. Article 187, in fact, corresponds to Article 210 (2) of the Government of India Act, 1935 which, inter alia, laid down that :- `(2) The Federal Court shall, as respects British India and the Federated States, have power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of Court, which any High Court in British India has power to make as respects the territory within its jurisdiction, and any such orders, and any orders of the Federal Court as to the costs of and incidental to any proceedings therein, shall be enforceable by all Courts and authorities in every part of British India or of any Federated State as if they were orders duly made by the highest Court exercising civil or criminal jurisdiction, as the case may be, in that part."
29. ' This provision of law came up for consideration in K. L. Gauba v. Chief Justice and the Judges of the High Court of Judicature at Lahore (1) where Gwyer, C. J. Who wrote the judgment of the Court observed that :- "Section 210 (2) confers powers, not jurisdiction ; and unless in any given case the Court has jurisdiction it has no powers to exercise. Mr. Gauba laid stress upon the words of the subsection which refer to the investigation or punishment of contempt of Court. This Court being a Court of Record has all the powers which belong to such a Court, including, the power to punish for contempts of itself and section 210 (2) does no more than give it the same machinery for making that power effective as the High Courts themselves possess."
30. Examining the instant case in the light of the above observation and the other text referred to above, it will be evident that this Court having jurisdiction to entertain and adjudicate upon an acquittal appeal just as in the passage above quoted the Federal Court had power to proceed in a case of contempt has all the powers relevant in this behalf including availability of the same machinery for making that power effective as for example the High Court possessed. It is not disputed that the High Court in an acquittal appeal has the power to issue non-bailable warrants against the acquitted accused. No doubt, this power, vis-a-vis, the High Court was specifically conferred on it by section 427 of the Criminal Procedure Code, but this power was essentially a power to enable securing the attendance of the persons being proceeded against. Consequently, the same power was conferred upon the Supreme Court, by the Constitution Makers by providing that "the Supreme Court shall have power to issue such directions, orders or decrees
(1) AIR 1942 FC 1 [Here in italics] ...................................................... Including an order for the purpose of securing the attendance of any person", for the same purpose. It is noteworthy that the power conferred by Article 187 is for securing attendance of any person. The word "secure" means "to make certain to put beyond hazard" (Webster). To secure, according to Ayer is to make safe. Thus, this Court in order to make it safe and certain that a person whose acquittal is found open to question is ultimately brought to punishment can secure his attendance by keeping him in jail during the pendency of the appeal.
31. It has already been seen that when bail is granted to a person as is clear from the concept of the word "bail" the custody of the said person is delivered to his sureties. This, no doubt, is a curtailment of his liberties If, as is conceded by Mahrnud Ali Kasuri, the Supreme Court has the power of imposing such a curtailment of his liberty by keeping him on bail, it can, on a parity of reasoning, curtail his liberty by keeping him in jail instead of in the custody of his sureties. The choice and type of custody would be within the powers of this Court and denial of this power, as urged by Mr. Mahmud Ali Kasuri, does not appear to be justified by any reason. Article 187 of the Constitution, therefore, appears to be directed to achieve the same result as is desired by section 427 of the Criminal Procedure Code, and the mere use of different terminology should not make any substantial difference. Consequently, the argument of Mr. Mahmud Ali Kasuri that the Supreme Court is not vested with any power under any law to order the arrest of the acquitted accused after granting leave to appeal against his order of acquittal is misconceived.
32. In any case, there seems to be force in the contention that if this Court, after granting leave to appeal against the order of acquittal, can substitute it by an order of death or a sentence of imprisonment, the power to order his detention or arrest during the pendency of appeal would only be an ancillary and incidental power to facilitate the making of the ultimate order that can undisputedly be made. In this connection, the judgment of this Court in Commissioner, Khairpur Division and another v. Ali Sher Sarki (1) is very instructive. In that case, in pursuance of a complaint lodged by the police under sections 13 and 14 of the Ordinance, the District Tribunal, Sukkur, by an order dated 8th May, 1967 restricted the movements of one Pir Abdul Rahim for a period of one year to the Municipal limits of Sukkur against which he filed an appeal under section 18 to the Commissioner, Khairpur Division. Simultaneously, he applied for interim stay of the order of the Tribunal but the Commissioner expressed his inability to grant the relief on the view that under section 18 o f the Ordinance he was not possessed of the power to stay the execution of an order brought in appeal before him. This view was not accepted by the Sind High Court to which this matter was brought on a writ petition and this Court agreed with the Sind High Court. While doing so it cited with approval the statement of the law made in Maxwell under the heading "Implied powers and Obligations", namely "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution."
33. ' The following instance amongst others which was cited under this rule is relevant in the present context, viz. "the Acts which empowers justices to require persons to take oath as special constables, and give them jurisdiction to inquire into an offence, impliedly empowered them to
(1) PLD 1971 SC 242 ' apprehend the persons who unlawfully failed to attend before them for these purposes. Otherwise, the jurisdiction could not be effectually exercised". [Cf. R. v. Tayford (1836) 5 A & E 4301.
34. ' This Court also observed that the Control of Goodas Ordinance conferred a right to appeal to the Commissioner under 'section 18 on a person declared as a Goonda and restricted to a particular locality. The Commissioner if he felt that the order passed against him was not a just order could have discharged him. If this could be done finally, the order could be suspended in the meanwhile, and such a power is ancillary to the power conferred to the Commissioner by section 18 to discharge the person complained against on final adjudication.
35. ' In Vol. XXI of Corpus Juris Secundum while discussing the Chapter on "Courts" a very valuable discussion is made in section 88 at page 136 under the heading "Ancillary & Incidental Jurisdiction".
36. This may be reproduced hereunder in extenso :- "Ancillary and incidental jurisdiction.
37. ' A grant of jurisdiction implies the necessary and usual incidental powers essential to effectuate it, and every regularly constituted Court has power to do all things reasonably necessary for the administration of justice within, the scope of its jurisdiction, and for the enforcement of its judgment and mandates, even though the Court may thus be called upon to decide matters which would not be within its cognizance as original causes of action.
38. ' While a Court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted Court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, and for the enforcement of its judgments and mandates. So demands, matters or questions ancillary or incidental to, or growing out of, the main action, and coming within the above principles, may be taken cognizance of by the Court and determined, since such jurisdiction is in aid of its authority over the principal matter, even though the Court may thus be called on to consider and decide matters which, as original causes of action, would not be within its cognizance. When parties are once rightfully in Court, the Court has jurisdiction over them, and that jurisdiction continues, without further notice, as long as any steps can be rightfully taken in the cause."
39. The Supreme Court stands at the apex of the judicial heirarcby in the country having all the powers of an appellate criminal Court and can, therefore, clearly pass all ancillary and incidental orders which are necessary for the proper disposal of and final adjudication in the cases.
40. The practice of this Court has been ever since it was held in Muhammad Ashiq v. Allah Bakhsh (1) that a petition for leave to appeal from the order of acquittal by a third person is competent, to issue, where the situation so requires, warrants for the arrest of the respondent accused who stood acquitted by the judgment of the High Court. This practice, we feel, was fully covered both by law and principle. We, therefore, hold that the order dated 10th April, 1978, whereby issuance of non- bailable warrants was directed against Saeed Mian, was legal and proper, and
(1) P L I) 1957 SC 293 ' requires no modification. The prayer, therefore, that he should remain on bail during the pendency of the appeal must fail and is hereby rejected. This reference stands disposed of. accordingly. 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.