TARIQ SALEEM SHEIKH, J. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), assails the vires of order dated 24-12-2018 passed by the learned Additional Sessions Judge, Rahimyar Khan.
2. Brief facts of the case are that the Petitioner , Punjab Food Authority , is a body established under Section 3 of the Punjab Food Authority Act, 2011 (the "Food Authority Act"), to regulate and monitor the food business in order to ensure provision of safe food in the province. The Petitioner has framed Punjab Pure Food Regulations, 2018, in exercise of the powers conferred on it under Section 57 of the Food Authority Act. On 26-11-2018, the Director Vigilance, Deputy Director (Operations) and the Food Safety Officer, Rahimyar Khan, inspected business place of Respondent No.1, "Amanat Khoya Point" , and found him producing Khoya which did not meet the standard prescribed by Regulation No.1.8.2.
Consequent thereupon, the Food Safety Officer seized 252 sacks of whey powder weighing 25 kgs each, three sacks of semolina weighing 50 kgs each, banaspati ghee 30 kgs, two cream machines and five Karahay (cauldrons), sealed the premises and lodged FIR No.507/2018 under Sections 22, 23, 31(1) and 31(2) of the Food Authority Act at Police Station Kot Samaba. Respondent No.1 subsequently made an application to the Special Court/Magistrate Section 30, Rahimyar Khan, for superdari of the aforesaid articles which was dismissed vide order dated 12-12-2018. He filed revision petiti on thereagainst which was accepted by the learned Additional Sessions Judge on 24-12-2018. The Petitioner/Food Authority has now approached this Court for quashing of that order .
3. The learned counsel for the Petitioner contended that the Food Authority Act was a special law and provided for an appeal only against a final order of the Special Court to the Lahore High Court. It specifically excluded revisional jurisdiction in respect of the proceedings of the Special Court. As such, the learned Additional Sessions Judge was not competent to entertain the revision petition of Respondent No.1 and the impugned order was void ab-initio. The learned counsel further contended that even on merits the said order was perverse and not sustainable. He prayed that this petition be accepted and the impugned order may be set aside. He placed reliance on The State through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi (PLD 2013 SC 361).
4. On the other hand, the learned counsel for Respondent No.1 vehemently opposed this petition. He contended that Section 435 Cr.P.C. read with Section 439-A thereof conferred revisional jurisdiction on the Sessions Judge and empowered him to look into the legality and propriety of any finding or order of inferior criminal courts. Since the Special Court was one of such courts, no exception could be taken to the impugned order. On merits he submitted that the said order was well reasoned and based on correct application of law so it did not call for interference by this Court. The learned counsel relied on Abdul Hafeez v. The State (PLD 1981 SC 352), The State v. Syed Qaim Ali Shah (1992 SCMR 2192 ), Mian Khalid Rauf v. Chaudhry Muhammad Saleem and another (PLD 2015 SC 348), and Syed Saleem Shah v. The State and 5 others (PLD 2019 Lahore 435) in support of his contentions and prayed for dismissal of this petition.
5. The learned Assistant Advocate General supported the Petitioner's stance.
6. Arguments heard. Record perused.
7. Article 175(2) of the Constitution ordains that no court shall have any jurisdiction except as it is conferred on it by the Constitution or by or under any law. Article 202 empowers the High Court to make, subject to the Constitution and law, rules to regulate its own practice and procedure or of any court subordinate to it while Article 203 enacts that every High Court shall have the authority to supervise and control all the courts subordinate to it.
In Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) a Larger Bench of the Hon'ble Supreme Court of Pakistan had the occasion to examine the import of these Articles. It ruled: "(i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme Court, a High Court for each Province and such other Courts as may be established by law.
(ii) That the words 'such other Courts as may be established by law' employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.
(iii) That our Constitution recognizes only specific tribunals which share judicial powers with the above Courts like the tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfu lly share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. "
8. The Code of Criminal Procedure, 1898 (hereinafter referred to as the "Cr.P.C." or the "Code"), consolidated and amended the law relating to criminal procedure. By Section 1(2) it extends to the whole of Pakistan but, in the absence of any speci fic provision to the contrary , nothing therein contained affects any special or local law which is 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. Part II of the Code relates to constitution and powers of criminal courts and offices and Section 6 describes the classes of criminal courts and Magistrates. It reads as under:
6. Classes of Criminal Courts and Magistrates. - (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely:
(i) Courts of Session;
(ii) Courts of Magistrates.
(2) There shall be the following classes of Magistrates, namely:
(i) Magistrates of the first class.
(ii) Magistrates of the second class; and
(iii) Magistrates of the third class.
9. Section 435 of the Code read with Sections 439 and 439-A thereof confers revisional powers on the High Court and the Sessions Judge and authorize them to call for and examine the record of any proceedings before any inferior criminal court situated within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order passed by it. It is important to point out that the revisional jurisdiction envisaged by the Code is distinct from the supervisory jurisdiction conferred on the High Court by Article 203 of the Constitution. The Hon?ble Supreme Court had the occasion to consider the scope of Article 203 in Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage de Air and others (2006 SCMR 1684). It ruled that it is meant to enable the High Court to ensure fair and proper administration of justice and not to help any party to the lis. The apex Court added: "Various Articles of the Constitution and various provisions of other laws provide that High Court exercises Revisional, Appellate and Constitutional jurisdiction. Any remedy to an aggrieved person in judicial matters can be granted by High Court while exercising aforesaid powers, in addition to the one contemplated by Section 151 C.P.C. and Section 561-A Cr.P.C. From the very language of Article 199 and Article 203 of the Constitution it becomes abundantly clear that Article 203 is not meant to be invoked by a party nor is the Court required by Article 203 of the Constitution to provide any relief to any party to a cause."
10. Section 6 of the Code perspicuously states that the legislature may be law establish other courts in addition to those created under the Code. In Abdul Hafeez v.The State (PLD 1981 SC 352) the Hon'ble Supreme Court observed: "A perusal of the above will show that the classes of the criminal Courts as given in Section 6 are not exhaustive because it contemplates that such Courts may as well be 'constituted under any law other than this Code'. This may be read with Article 175 of the Constitution of 1973 which ... states that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law .
"The combined effect of these two provisions is that "criminal courts" are not necessarily only those which are mentioned in section 6 of the Criminal Procedure Code but this term will also include such other criminal courts which are constituted under any other law ."
11. The Food Authority Act is a special law. Section 40 thereof establishes Special Court consisting of a presiding officer and two technical members. If the Special Court is not established or is not functional in an area, a Magistrate exercising powers under Section 30 of the Code for the area is deemed to be the Special Court under the Act. Section 41 lays down the procedure for taking cognizance of the offences under the Act and their investigation while Section 42 stipulates the time-limit for prosecutions. Section 43 prescribes the procedure for trials. It ordains that a Special Court may summarily try an offence punishable under the Act and impose punishment of imprisonment for a term not exceeding six months or fine not exceeding one million rupees.
However , if it is of the opinion that the nature of the offence does not justify summary trial, it may conduct proceedings in accordance with the provisions of Chapter XX of the Code. The Special Court is, therefore, by all means a criminal court within the meaning of Section 6 of the Code.
12. Section 5(1) of the Code mandates that all offences under the Pakistan Penal Code, 1860, shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. However , in terms of Section 5(2), for offences under other laws the procedure prescribed in the Code would be followed 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 of fences.
13. The controversy in the instant case revolves around the interpretation of Section 45A of the Food Authority Act which reads as under: 45A. Appeal against conviction .- (1) The Authority or the person sentenced by a Special Court may, within thirty days from the date of communication of the order , file an appeal against a final order of the Special Court to Lahore High Court.
(2) Save as provided in this Act or rules, no court shall take cognizance or revise a sentence, or transfer any case from a Special Court, or make order under Sections 426, 491 or 498 of the Code or have jurisdiction of any kind in respect of any proceedings of the Special Court.
14. Sub-section (1) grants right of appeal to the Lahore High Court. It ordains that the Food Authority or the person sentenced by the Special Court may file an appeal against that Court's final order within thirty days. This clause is important because it is trite law that the right of appeal does not exist unless it is expressly conceded by the statute.
There isn't any scope for inferring such a right by implication. If any authority is required on this point, reference may be made to Het Ram v. Collector of Aligarh (AIR 1941 All. 355), Hari Meah v. The State (PLD 1958 Dacca 333), The Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Syed Fazlur Rahman and others (PLD 1960 Dacca 200), Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), I.C.I. Pakistan Limited v. Salahuddin and others (1991 SCMR 15), Habib Bank Ltd. v.
The State and 6 others (1993 SCMR 1853 ), Faiz Muhammad v. Mehrab Shah and others (PLD 1997 Pesh.
166), Syed Masroor Shah and others v. The State (PLD 2005 SC 173), and Multan Electric Power Company Ltd. through Chief Executive and another v . Muhammad Ashiq and others (PLD 2006 SC 328 ).
15. On the other hand, sub-section (2) of Section 45A is exclusionary . Statutory provisions which limit the jurisdiction of ordinary courts are quite common. However , it is too well-settled to be disputed that jurisdiction must be excluded by clear and definite words and not by implication. The Halsbury' s Laws of England (Fourth Edition) states - "The subject's right of access to the courts may be taken away or restricted by statu te but the language of any such statute will be jealously watched by the courts and will not be extended beyond its least onerous meaning unless clear words are used to justify such exten sion. Moreover , a statutory provision ousting the jurisdiction of the courts must now be interpreted, as far as possib le, so as to be compatible with the right to a fair and public hearing under the European Convention on Human Rights as incorporated into domestic law ."
16. In Oil and Gas Development Co. Ltd. v. The Sacked Employees Review Board and others [2016 PLC (C.S.) 1318 ], the Islamabad High Court summarized the principles for construction of ouster clauses in statutes as follows: "(i) The legislature is competent to oust or exclude the jurisdiction of courts.
(ii) There is a presumption against the ouster of jurisdiction. Any law or statutory provision which denies access to the courts is to be construed very strictly and narrowly .
(iii) Ouster or exclusion of jurisdiction must be expressly and clearly implied and not readily inferred. The language used by the legislature ought to show express and unequivocal manifestation of the legislative intent to exclude the jurisdiction of the courts.
(iv) If the language is so clear and unmistakable that leaves no room for doubt as to the intention of the legislature ousting jurisdiction in all circumstances then that will be given effect to even in cases of mala fides and without jurisdiction would not be open to judicial review and the courts would not be concerned with the consequences.
(v) Ordinarily , unless the intention of the legislature is so clear that no other meanings can be given to the language used, the jurisdiction of the courts will not be ousted in three categories of decisions/orders i.e. (a) without jurisdiction, (b) coram non judice and (c) tainted with mala fide .
(vi) Ordinarily, when the legislature declares an order or decision to be final, it has reference to such orders/decisions which is within the powers of the authority making it, the authority should have constituted in accordance with the statute, the person proceeded against should be subject to jurisdiction, the order passed or action taken should be such as could have been made under a statute and if these conditions are fulfilled then an omission or irregularity committed in following the statutory procedure will not be a sufficient ground to avoid giving effect to the exclusion of jurisdiction."
17. The phraseology used in sub-section (2) of Section 45A of the Food Authority Act is not new. A number of statutes in the past contained similar provisions which were considered by the courts. One of the earliest cases in this respect is Sheo Nandan Prasad Singh v. Emperor (AIR 1918 Patna 103) which involved interpretation of Section 8(1) of Act IV of 1915 known as the Defence of India (Criminal Law Amendment) Act.
It enacted that "there shall be no appeal from any order or sentence of the Commissioners appointed under this Act, and no court shall have authority to revise such order or sentence, or to transfer any case from such Commissioners, or to make any order under s.491 Criminal P.C., 1898, or have any jurisdiction of any kind in respect of any proceedings under this Act". A Full Bench of the Patna High Court held that Section 8(1) "quite clearly expressed" that the decision of the Commissioners should be final and conclusive and no other court should have any powers of interference either by way of appeal, revision or in any other way whatsoever. Ali Imam, J., one of the members of the Bench added in his separate note: "It is contended for the petitioner that exclusion of interference under this section, though extensive, is not exhaustive. The words or have any jurisdiction of any kind in respect of any proceedings under this Act? have been the subject of much discussion in the hearing of this Rule. A possible construction of these words has been suggested to be in the nature of ejusdem generis and that the words under notice should be construed to limit the exclusion to powers of such character as are enumerated in the rest of the section. This might have been a possible view if the concluding passage in the section were less unambiguous than it is. The use of the word `any' in the three places in this passage governing jurisdiction and character of jurisdiction with reference to all proceedings under the Act leaves no room to doubt that the framers of this Act intended the section and have in fact so worded it as to be exhaustive. The meaning of the section is to be gathered from its language, which is also evident from the special character of Act IV of 1915 which provides for a special machinery to secure public safety and the defence of British India by the more speedy trial of certain of fences."
18. In Banwari Gope and others v. Emperor [AIR (30) 1943 Patna 18] the petitioners were convicted by the Special Magistrates appointed under the Special Criminal Courts Ordinance (II of 1942). They filed revision petitions against their convictions before the High Court. One of the questions for determination was whether the proceedings of the Special Magistrates were subject to revisional jurisdiction of the High Court. A Full Bench while interpreting Section 26 of the Ordinance (which was couched in almost the same words as Act IV of 1915, supra, and the Food Authority Act) held that they derived jurisdiction from the Ordinance and did not function as inferior criminal courts within the meaning of Section 435 Cr.P.C. Relevant excerpt from the judgment is reproduced hereunder: "The next point to be decided is what power can be exercised by the High Court in these cases. It seems to me to be plain that the High Court cannot revis e the order of conviction or sentence passed by the Special Magistrates concerned under Sections 435 and 439 Cr.P.C. because this power of revision can be exercised only as against orders passed by Magistrates exercising jurisdiction under the Code of Crimi nal Procedure. As the Special Magistrates derive their jurisdiction from the Ordinance, they cannot be properly described as `inferior criminal Courts' and the High Court cannot revise their order . It does not however necessarily follow from this that the High Court is entirely powerless in the matter . Under Section 491 Cr.P.C., the High Court may direct that a person illegally or improperly detained in public or private custody within the limits of its appellate criminal jurisdiction be set at liberty . It seems obvious to me that if the Ordinance under which the petitione rs were tried was not applicable to their cases, then their trial was no trial at all in the eye of law and they cannot be detained in a prison because they should be deemed to have been committed to prison without a trial and because the Magistrates who have sentenced them to imprisonment had no power to send them to prison."
The Privy Council seems to have taken the same view in Emperor v . Benoari Lal Sarma (AIR 1945 PC 48).
19. Again, in Gopal Marwari and others v. Emperor (AIR (30) 1943 Patna 245) while dealing with Section 26 of Ordinance II of 1942 a Special Bench of the Patna High Court observed: "Section 26 expressly provides against interference by any other Court with the proceedings of a Court constituted under the Ordinance. There is an express reference to Section 491 and since only High Courts can act under Section 491, Section 26 must have been designed to exclude interference by all other Courts including the High Courts."
20. In Hari Meah v. The State (PLD 1958 Dacca 333), the petitioner was a dealer in food grains. He was tried summarily by the Special Magistrate of Comilla under Section 6 of the East Pakistan Food (Special Courts) Act (X of 1956) and was convicted and sentenced. He preferred an appeal before the Sessions Judge of Tippera but that was dismissed being not maintainable. Aggrieved, he filed a revision petition before the Dacca High Court but that too was dismissed. The Division Bench held that the Special Magistrate appointed under Act X of 1956 exercised powers conferred on him by that Act and not by the Code. As such, his jurisdi ction was special and in some respects larger than that of the Magistrates of First Class under the Code. Even though he was a criminal court in the generic sense, his orders were not open to revision by the High Court under Section 439 Cr .P.C.1
21. Ch. Zahur Ilahi, M.N.A. v. The State (PLD 1977 SC 273) is another important case on the point in issue. The facts were that the petitioner (Ch. Zahur Ilahi), a Member of the National Assembly from the opposition, was arrested on 06-02-1976 by the Punjab Police in connection with the murder of Ch. Muhammad Anwar Samman. On 12-02-1976 the Hon'ble Supreme Court of Pakistan admitted him to bail but before his release he was arrested by the Karachi Police in a case registered against him earlier under Section 16 of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960). He was taken to Karachi where an Additional Sessions Judge granted him bail. Again, before his release, two more cases under the Defence of Pakistan Rules, 1979, were registered against him on 14-02-1976. Ch. Zahur Ilahi applied to the Special Tribunal for bail before arrest which was declined.
Thereafter he approached the High Court of Sindh & Balochistan but a learned Single Judge summarily rejected his application on the ground that he had no jurisdiction under Section 13 of the Defence of Pakistan Ordinance (XXX of 1971). In this background the august Supreme Court was called upon to interpret Section 13, supra , which provided as follows:
13. Appeals from sentences imposed by Special Tribunals etc. -
(1) A person sentenced by a Special Tribunal -
(a) to death or transportation for life, or
(b) to imprisonment for a term extending to ten years under section 6 of this Ordinance or under sub-section (4) of section 5 of the Official Secrets Act, 1923 (XIX of 1913), as amended by section 7 of this Ordinance shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of a Special Tribunal, and. no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a special Tribunal.
(2) Chapter XXIX of the Code shall apply to the suspension. remission and commu tation of sentences passed by a Special Tribunal, so between, that the powers exerciseable by the Provincial Government under that Chapter shall be exercised by the Central Government.
22. The Bench consisted of five learned members who recorded separate opinions. Muhammad Yaqub, C.J. was of the view that the jurisdiction of ordinary courts, including the High Court, is completely taken away in respect of the proceedings of the Special Tribunal once it takes cognizance of a case. He held: "The word `any' is used at no less than seven places in section 13(1)(b). It is a word of very wide amplitude and defined in Stroud's Judicial Dictionary as a word which excludes limitation or qualification (per Fry. L.J., Duck v.
Bates (12 QBD 79), `as wide as possible' (per Chitty, J., Heckett v. Sutton (51 LJ Ch.433). What then is the meaning of the words: `Notwithstanding the provisions of the Code, or any other law, no Court shall have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal'. The plain and unequivocal words used in these clauses of section 13(1)(b) make the intention of the law-giver manifest that no Court including a High Court shall under the Code or any other law, call in question or interfere with the proceedings of a Special Tribunal. `Proceedings' do not mean proceedings which have already concluded. As I read the clause the word `proceedings' includes all matters connected with and ancillary to the trial of a person charged before a Special Tribunal, including the matter relating to grant of bail."
Muhammad Yaqub Ali, C.J. accepted that the Special Tribunal was court of inferior jurisdiction within the contemplation of Section 6 of the Code. However , he ruled that the High Court could not exercise powers under Sections 435 and 439 of the Code because Section 13 of Ordinance XXX of 1971 had expressly taken them away .
23. Salahuddin Ahmed, J. took a contrary view and ruled that jurisdiction of the High Court under Sections 498 and 561-A Cr.P.C. was not barred as they were not mentioned in Section 13(1)(b) of Ordinance XXX of 1971. While construing the expression "no Court shall have jurisdiction of any kind in respect of any proceedings of a Special Tribunal" he held: "It is appropriate at this stage to dispose of the argument that the words `no Court shall...have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal ' are wide enough to exclude any jurisdiction of the High Court of any kind in respect of a case exclusively triable by a Special Tribunal. If we assume this to be true then there was no necessity for the Legis lature to have mentioned section 491 of the Code of Criminal Procedure, for it is one of the rules of interpretation that no such superfluity is to be attributed to the Legislature. Furthermore, if the Legislature mentioned section 491 of the Code of Criminal Procedure by way of abundant caution there was no reason why it should not have mentioned sections 498 and 561-A of the Code of Criminal Procedure also. "
"Again, the words `no Court ' cannot always be interpreted to include a superior Court or High Court. 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. "
24. Muhammad Akram, J. concurred with Salahuddin Ahmed, J. that the High Court was competent to grant bail. He held: "In the light of this preponderance of judicial opinion and on a parity of reasoning, I am persuaded to hold that the ouster of jurisdiction of the Courts, warranted under the provisions contained in section 13(1) of the Defence of Pakistan Ordinance, 1971 is applicable to the High Courts as well. But this bar is only to the extent that this section goes on a rational interpretation ...The Special Tribunal is subordinate to the High Court even though for the limited purposes of the restricted right of appeal conferred on a convicted person under section 13(1) of the Ordinance.
Under section 12 of the Ordinance, the Tribunal has the powers conferred by the Code on a Court of Session.
Therefore, undoubtedly it is also an inferior criminal Court as compared to the High Court which is the superior Court of the Province. As already discussed above the bar of jurisdiction of the Courts under section 13 of the Ordinance against `the proceedings of a Special Tribunal ', is strictly confined to the proceedings at the trial proper , and it does not extend to any collateral proceedings not forming part of the trial as such before the said Tribunal. In this connection, I am further inclined to hold that under sub-section (1) of sectio n 13, the bar against appeal or revision of `any order or sentence ' of the Special Tribunal in the context is confined to any order of conviction and sentence. In the sequence and the context, the two words must be read together ejusdem generis with each other .
I am fortified in this conclusion which is in conformity with my interpretation of rule 210 which too has an overriding effect in accordance with the provisions contained in section 4 of the Ordinance. "
25. Muhammad Gul, J. agreed with the conclusions of Salahuddin Ahmed and Muhammad Akram, JJ. that on a proper construction of the relevant provis ions of law the High Court had the jurisdiction to allow bail to Ch. Zahur Ilahi even though the Special Tribunal had refused it. However , his view on some of the points was different. He construed Section 13(1) of Ordinance XXX of 1971 as follows: "Nothing in my opinion turns on the concluding portion of sub section (1) of section 13 of the 1971 Ordinance, beginning with the words `no Court shall have any authority...'The learned Advocate-General relying upon the apparent all pervasive phraseology used, argued that the prohibition was comprehensive enough to include an order by the Special Tribunal refusing bail. The provision when read as a whole makes it clear that prohibition is directed particularly against an appeal, a revision, transfer of a case and an order under section 491 Cr.P.C. After this enumeration follow the general prohibition `in respect of any proceeding of a Special Tribunal '. To the interpretation of such a provision, the ejusdem generis rule applies. "
26. Muhammad Afzal Cheema, J. also agreed that Ch. Zahur Ilahi was entitled to bail but his ground for that decision was mala fides . He did not agree with the reasoning of Muhammad Akram and Muhammad Gul, JJ. as to the application of the doctrine of ejusdem generis in the construction of Section 13(1), supra , and held as follows: "I am respectfully of the view that it would be difficult to assail such an absolute ouster of the High Court's jurisdiction on the principle of ejusdem generis as invoked by my learned brothers which would be applicable only in cases where the things particularized in the preceding part have common characteristics constituting species of the same genus and are followed by a general word designated to guard agains t accidental omissions. In such cases the general words would be restricted to things of the same nature as those which have already been mentioned. On the other hand, in the instant case it may be submitted with respe ct that appeal, revision, transfer and directions in the nature of habeas corpus as enumerated in the preceding portion are matters distinctly different from each other and are separately compartmentalized under different chapters of the Cr.P.C. Chapter XXXI deals with appeals, Chapter XXXII deals with references and revisions, Chapter XXXVII deals with habeas corpus and Chapter XLIV deals with transfer of cases. These are all matters germane to criminal prosecution being relatable to proceedings during trial and after conviction but cannot be reasonably described as being species of a common genus and therefore the sweeping clause by which they are followed cannot be reasonably restricted to things of the same nature as those already mentioned, there being no community of nature as such. "
27. At this stage I must make a digression and refer to the case of Abdul Hafeez v. The State (PLD 1981 SC 352) which was under the Drugs Act (XXXI of 1976). Although it did not involve interpr etation of the ouster clause like the one with which we are presently concerned, it has singular importance. Section 31(7) of the Act XXXI of 1976 provides for an appeal to the High Court against a sentence passed by a Drug Court but there is no express provision for revision. The Hon'ble Supreme Court of Pakistan noticed the significance of the words "inferior criminal courts" in Section 435 Cr.P.C. and ruled that they confer revisional jurisdiction on the High Court against the orders of the Drug Court as it is judicially inferior to it. The apex Court explained: "Section 435 of the Criminal Procedure Code says that the High Court (to put in broad words) will have a revisional jurisdiction against orders of inferior criminal Courts'. The word inferior' here means judicially inferior (Nobin Kristo Mookerjee v. Russick Lall Laha, ILR 10 Cal. 268). It is to point out that a Court whose orders are subject to appeal to another independent and separate Court, is in that particular sense, inferior to the appellate Court. It will be worthwhile to mention here that in the Criminal Procedure Code of 1872, in the corresponding section 295, the words used were any Court subordinate to such Court or Magistrate.' It appears to be unreasonable to suppose that this new expression has been substituted without any definite object, and the obvious conclusion which can legitimately be drawn is, that it refers to a Court over which the High Court proceeding under section 435, has appellate jurisdiction. From the above principle it is further evident that there may be inferiority without subordination but there cannot be subordination without inferiority. The epithet inferior' seems to have been used simply in order to avoid the use of subordinate' on account of the special limitation of the latter word which would prevent the superior court from looking into certain cases arising beyond the line of subordination' to it; which yet might properly be examined for the purpose of an order under sections 436 and 437 or reference under section 438, and then by High Court under section 439. It is to keep the hands of the High Court quite free in dealing with a case in its ultimate stage of revision etc. that expression inferior' has been substituted for the word subordinate'. In that context, therefore, when in the manner aforesaid, a Drug Court has been made subject to appellate jurisdiction of the High Court and in that sense inferior to the High Court, the latter could exercise revisional jurisdiction against its order and proceedings as laid down in sections 435/439 Cr. P. C."
(emphasis added)
28. In the above-mentioned case the Hon'ble Supreme Court also nixed the argument that the phrase "inferior criminal courts" has reference only to the criminal courts established under the Code and those established under a special law would not fall within the ambit of Sections 435/439 Cr.P.C. and their proceedings and orders would not be revisable by the High Court. This view was reaffirmed in two subsequent cases. In Habib Bank Ltd. v. The State and 6 others (1993 SCMR 1853) the question was whether revision petition was maintainable against an order of acquittal in respect of an offence under the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984). The Hon'ble Supreme Court held that Section 10 is to be construed strictly. The High Court was competent to examine the correctness of such order as there was no express bar. Its jurisdiction under Sections 435/439 Cr.P.C. could not be curtailed by implication. Similarly, in Mian Khalid Rauf v. Chaudhry Muhammad Saleem and another (PLD 2015 SC 348), the issue was whether the High Court was competent to entertain a revision petition against the judgment of Special Court constituted under the Pakistan Criminal Law Amendment Act, 1958. The Hon'ble Supreme Court ruled that the Special Court is inferior to the High Court so the latter had the revisional power under Section 439 Cr.P.C. to check the correctness, legality or propriety of any finding or order recorded by the former because the Act of 1958 itself had not excluded it.
29. In the Lahore High Court there were divergent views of two Full Benches [reported as Muhammad Jawad Hamid v. Mian Muhammad Nawaz Sharif and others (PLD 2018 Lah. 836) and Aziz Ahmad v. Syed Irshad Hussain Shah and 18 others (2019 YLR 355)] on the issue whether the orders passed by the Special Judge under the Anti-Terrorism Act (XXVII of 1997) were amenable to the revisional jurisdiction of the High Court or the same was excluded by implication. A Larger Bench consisting of five Hon'ble Members through an authoritative judgment in the case Syed Saleem Shah v. The State and 5 others (PLD 2019 Lah. 435) ruled that the revisional powers of the High Court under Section 435/439 Cr.P.C. could not be ousted without specific legislation.
30. Chronologically the next important case relating to interpretation of the provisions similar to Section 45A(2) of the Food Authority Act is Allied Bank of Pakistan Ltd. v. Khalid Faroop (1991 SCMR 599). This case was also under the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984). There were two questions before the Hon'ble Supreme Court: first, whether Section 5(6) of the Ordinance ousted the jurisdiction of the High Court to grant bail to an accused pending his trial where it had been refused by the Special Court, and secondly , whether Section 10 of the Ordinance barred the High Court from suspending the sentence of a person convicted by the Special Court and releasing him on bail pending the determination of his appeal. On the first issue the Hon'ble Supreme Court held that Section 5(6) of the Ordinance does not completely oust the applicability of Section 497 of the Code in respect of bails. It added: "The provisions of the fourth proviso to sub-section (1) of section 497 of the Code being itself an exception to the rule contained in the third proviso does not create an exception to the principle laid down in sub-section (6) of section 5 of the Ordinance and would therefore be available to the High Court, if the third proviso to sub-section (1) of section 497 of the Code is treated as applicable. Therefore, whilst the provisions of the first and third provisos to sub-section (1) of section 497 of the Code may be treated as not available to the Special Court or the High Court, such a situation would not apply to sub-sections (2) to (5) of section 497 of the Code, as they do not affect the rule stated in sub-section (6) of section 5 of the Ordinance. These provisions would not stand excluded, whether expressly or by necessary intendment or implication. In the final analysis, it is not possible to subscribe to the view that section 5(6) of the Ordinance constitutes a complete Code for the grant of bail to persons accused of offences mentioned in the Schedule to the exclusion of all provisions in the Code relating to the same subject."
31. Sub-section (1) of Section 10 of Ordin ance IX of 1984 stipulates that "... no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code or have any jurisdiction of any kind in respect of any proceedings of a Special Court. "
While analyzing this provision the Hon'ble Supreme Court observed: "Notwithstanding the provisions of the Code, no Court shall have authority to revise such sentence. The power of revision obviously would be with a Court other than the Special Court and having a status higher than the Special Court. Since the Special Court has all the powers conferred by the Code on a Court of Session exercising original jurisdiction, the only Court capable of exercising revisional power would, therefore, be the High Court. Thus, the power of the High Court under section 439 of the Code to revise the sentence would appear to be expressly excluded. Further , notwithstanding the provisions of the Code, no Court shall have authority to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code. Since the Special Court is vested with the powers of a Court of Session, the only other superior Court which would have authority to transfer any case from a Spec ial Court would appear to be a High Court under section 526 of the Code.
This power also expressly stands excluded. The power under section 426 of the Code to suspend a sentence and release a convict on bail pending the determination of his appeal and the power under section 491 of the Code to issue directions of the nature of a habea s corpus, all being powers vested in and exercisable by the High Court, and the power under section 498 of the Code to grant pre-arrest bail being power vested in the High Court and the Court of Session, all stand expressly excluded. Still further , notwithstanding the provisions of the Code, no Court shall have jurisdiction of any kind in respect of any proceedings of a Special Court."
32. The Hon'ble Supreme Court further said: "Therefore, notwithstanding the provisions of the Code, no Court shall have jurisdiction in respect of such authority or powers as are conferred on the Special Court by the Ordinance in respect of proceedings before itself. The word `proceedings', as held in Zahur Ilahi v. The State (PLD 1977 SC 273), covers all matters connected with or ancillary to the trial of a person charged before the Court, i.e. proceedings which are pending before the Court.
Thus, in respect of any special jurisdiction or power conferred or any special form of procedure prescribed by the Ordinance, no Court shall have jurisdiction to interfere or intermeddle in any way with such jurisdiction, power or procedure during the pendency of the proceedings before the Special Court. In short, the words `no Court' appearing in the second part of sub-section (1) of section 10 of the Ordinance almost exclusively cover the High Court. Since the ouster provided in this sub-section is express, it will prevail."
33. In paragraph-28 of the aforesaid judgment the apex Court talked about the supervisory power of the High Court under Sections 435 & 439 of the Code and ruled: "The supervisory powers of the High Court under sections 435 and 439 of the Code also require examination in respect of cases under the Ordinance. These powers are available for the purposes of examining proceedings of inferior criminal Courts. As held in para 16 above, the Special Court is a Court inferior to the High Court. The power of the High Court to check the correctness, legality or propriety of any sentence recorded or passed by the Special Court stands excluded, by virtue of sub-section (1) of section 10 of the Ordinance. However , the powers under sections 435 and 439 of the Code to check the correctness, legality or propriety of any other finding or order recorded or passed and as to the regularity of any proceedings of the Special Court would not stand excluded."
(emphasis added)
34. In The State v. Syed Qaim Ali Shah (1992 SCMR 2192 ), the State appealed against grant of bail by a Division Bench of the High Court of Sindh to the respondents during the pendency of trial under Sections 307, 302, 120-B, 34 PPC before the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975). A five-member Larger Bench of the Hon'ble Supreme Court was confronted with the question as to whether the Allied Bank' s case, supra, had correctly interpreted the ouster clause in Section 10(1) of the Ordinance IX of 1984 and the ratio of that case could be applied to an identical provision in Act XV of 1975. It was authoritatively ruled: a) Section 7(1) of Act XV of 1975 bars the High Court from exercising powers under Section 439 Cr.P.C. to revise the sentence or to transfer any case from a Special Court under Section 526 Cr.P.C. or to make any order under Section 426 Cr.P.C. for suspending the sentence or to issue writ of habeas corpus under Section 491 Cr.P.C. The Hon'ble Supreme Court observed that "the other view can be that the expression `no Court' used in the above relevant portion of second part of sub section (1) of section 7 of the Act refers to Courts other than the High Court .... [T]he view taken by this Court in the Allied Bank case (that the expression `no Court' will include High Court) seems to be correct as the High Court as an appellate Court has the power under section 423 Cr.P.C. to pass appropriate order , the application of which section has not been excluded under the above second part of sub- section (1) of section 7 of the Act." b) Since Section 497 Cr.P.C. does not figure in Section 7(1) of Act XV of 1975 the High Court has the power under Section 497 Cr.P.C. with its provisos to grant bail to an accused while trial befor e the Special Court is pending.
Thus during the trial bail can be granted to an accused on medical ground; c) Section 561-A Cr.P.C. does not confer an alternate and additional jurisdiction on the High Court. It cannot be used to divert ordinary course of criminal procedure and thwart legislative intent. In the presence of the bar contained in Section 7(1) of Act XV of 1975, it cannot be invoked as a substitute for Section 426 Cr.P.C. to admit a convict to bail during pendency of his appeal. Nevertheless, it may be pressed into service in certain exceptional circumstances (for example, unconscionable delay and severe ailment). In such instances the question of bail would be considered independent of Section 426 Cr.P.C. on the touchstone of the expression "or otherwise to secure the ends of justice" (used in Section 561-A Cr.P.C.).
35. I have gone through the case The State through Mehmood Ahmad Butt, Deputy Director , Regional Directorate, Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi (PLD 2013 SC 361) cited by the learned counsel for the Petitioner . In the said case the Hon'ble Supreme Court considered Sections 47 & 48 of the Control of Narcotic Substances Act (XXV of 1997). Since the language of these sections is altogether different from Section 45A of the Food Authority Act, it is not relevant to the issue under discussion.
36. I never wanted to burden this judgment with huge number of references and extensive quotations but it was necessary to show that the language of sub-section (2) of Section 45A of the Food Authority Act is tricky and susceptible to dif ferent interpretations. Anyway now I direct myself to the case in hand.
37. The Special Court constituted under the Food Authority Act is essentially a Magisterial Court because it is presided over by a Magistrate and, as per Section 43, ordinarily conducts summary trial of the offences punishable under the Act. In this regard it follows the provisions laid down in Chapter XXII of the Code unless it is of the opinion that the nature of the offence does not justify summary trial. In that eventuality it may conduct proceedings in accordance with Chapter XX of the Code. Both these Chapters are specific to the Magistrates as trials before the High Court and Courts of Session are dealt with by Chapter XXII-A of the Code.
38. Section 435 of the Code read with Sections 439 and 439-A thereof confers revisional powers on the High Court and the Sessions Judge which they may exercise over inferior courts within the local limits of their jurisdiction. The expression "inferior courts" employed by Section 435 has a specific connotation. According to The Major Law Lexicon (4 Edition, p.3384), "a court is inferior to another when it is placed under the supervisory or appellate control of such other court." Words and Phrases (Permanent Edition 21A-112) defines inferior court as "one which legislature creates pursuant to constitutional authority and upon which legislature bestows jurisdiction, and must be inferior in ultimate authority to constitutionally created court which exercises same jurisdiction; superiority is shown by giving constitutional court controlling authority over legislative court, for example by appeal or revision." Similarly, American Jurisprudence (Edition 2005, Volume 20, & 12) states that "while superior court is a court that may hear appeals from a result reached by a court of original jurisdiction, inferior courts are those courts whose judgments and decrees may be reviewed by an appellate tribunal, whether the tribunal is the circuit or another appellate court." The cases of Nobin Krishto Hookerjee v. Russick Lall [ILR 10 Cal. 268], and Krishnaji Vithal Kangutkar v. Emperor [AIR (36) 1949 Bombay 29] held that a court is inferior to another court when an appeal lies from the former to the latter. The Hon'ble Supreme Court of Pakistan approved this view in the case of Abdul Hafeez, supra, holding that "inferior means judicially inferior. A court whose orders are subject to appeal to another independent and separate court, is in that particular sense, inferior to the appellate court." This dictum was reaffirmed in two subsequent cases.
39. Sub-section (1) of Section 45A of the Food Authority Act makes the Special Court subject to the appellate jurisdiction of the Lahore High Court. Hence, it is inferior to it within the contemplation of Section 435 Cr.P.C. and amenable to its revisional jurisdiction. Inasmuch as the Special Court is not subject to the appellate authority of the Sessions Judge, it is neither judicially inferior to him nor under his supervisory control. Even otherwise, it would be anomalous to hold that the Sessions Judge has no appellate powers but can still exercise revisional jurisdiction.
40. The High Court's revisional powers also have bounds. Sub-section (2) of Section 45A of the Food Authority Act places two restrictions on them: (a) the High Court cannot revise the sentence handed down by the Special Court, and (b) it cannot interfere in the proceedin gs of the trial. According to the judgment of the Hon'ble Supreme Court in the Allied Bank 's case, supra , which is the final word on the issue, the term "proceedings" in sub-section (2) covers the matters connected with or ancillary to the trial of a person charged before the Special Court. The power of the High Court to check the correctness, legality or propriety of any other finding or order recorded or passed and as to the regularity of the proceedings of the Special Court is not ousted.
41. For the sake of completeness it may be added that sub-section (2) of Section 45A of the Food Authority Act bars all courts from transferring a case from the Special Court and making orders under Sections 426, 491 and 498 of the Code. However, it needs to be mentioned that since the aforesaid clause does not specifically exclude the applicability of Sections 497 and 561-A Cr.P.C., the High Court is competent to invoke them in appropriate cases. Furthermore, the constitutional jurisdiction of the Supreme Court and the High Court under Articles 184 and 199 of the Constitution is not affected. "It is axiomatic and by now a judicial clich that sub-constitutional legislation cannot curtail or abridge the constitutional jurisdiction of superior courts." Reliance is placed on Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 SC 139), Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26), Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632), Khan Asfandyar Wali and others v.
Federation of Pakistan through Cabinet Division, Islamabad, and others (PLD 2001 SC 607), Malikth 2 3 4 Muhammad Mukhtar, through legal heirs v. Province of Punjab through Deputy Commissioner (Collector)
Bahawalpur and others (PLD 2005 Lah. 251) and Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala and others (PLD 2014 Lah. 221).
42. In the instant case, the learned Additional Sessions Judge entertained revision petition of Respondent No.1 against the order of the Special Court refusing superdari of the articles seized by the Food Authority. In view of what has been discussed above, he had no jurisdiction in the matter. This petition is, therefore, accepted and the impugned order of the learned Additional Sessions Judge dated 24-12-2018 is set aside. . This judgment was upheld by the Hon'ble Supreme Court in Hari Meah v . The State [PLD 1959 SC (Pak.) 307]. . see paragraph 27, supra . Habib Bank Ltd. v. The State and 6 others (1993 SCMR 1853) and Mian Khalid Rauf v. Chaudhry Muhammad Saleem and another (PLD 2015 SC 348) . Arshad Mehmood v . Commissioner/Delimitation Authority , Gujranwala and others ( PLD 2014 Lah. 221 ).