' AJMAL MIAN, ACTG. C. J.-This petition is directed against the orders dated 13th May, 1980, 20th June. 1982 and 18th June, 1984 passed by the respondent Nos. 1, 2 and 3 respectively. The brief facts leading to the filing of the above petition are that the petitioner alongwith one Ghulam Rasool stood surety for an accused All Muhammad (hereinafter referred to as the 'accused') who was charged under section 366/368/497, P.P.C. In the sum of Rs, 10,000 each. Since the accused had absconded the trial Court i. e. The Assistant Commissioner at Mastung initiated proceedings under section 514, Cr. P.C. And forfeited the bail bond amount. The petitioner being aggrieved filed an appeal before the Commissioner Kalat Division, which was allowed by an order dated 11th May, 1978 and the case was remanded to the learned Assistant Commissioner with the direction to pass a fresh order after hearing the petitioner. After the above remand order, the petitioner requested for opportunity to produce the accused. He was provided ,the same on 10th September, 1978 and 30th January, 1979. But he failed to produce the accused. After that a fresh notice was served upon the petitioner calling upon him to show cause as to why the bail bonds should not be forfeited and the penalty realized. In response to which, he filed a reply dated 4th January, 1979 wherein he denied the execution of the bond in favour of the accused, but later on he requested for two months time for producing the accused which was again granted. After that the petitioner neither appeared nor showed any cause for default. Instead of that he filed another appeal before the Member of the Board of Revenue. The above appeal was dismissed. After that the bail bond amount was forfeited by the Assistant Commissioner by the above order dated 13th May, 1980. The petitioner being aggrieved by the above order filed Criminal Appeal No, 197 before the Commissioner, Kalat , )ivision, which was dismissed by the aforesaid order dated 20th June, 1982. Thereupon, the petitioner filed Criminal Case No, 102/BOR/82 (Reader) before the Member (Judicial), Board of Revenue, Baluchistan, which was also dismissed by the aforesaid order dated I 8th June, 1984. The petitioner being aggrieved by the above orders has filed the present petition.
2. Since in the present petition, it was contended by Mr. Khalid Malik, learned counsel for the petitioner that section 514, Cr. P. C. Could not have been pressed into service as the Assistant Commissioner exercising the powers of Deputy Commissioner under Ordinance of 1968 (hereinafter referred to as the 'Ordinance') is not a Court, a D. B. Of this Court by its order dated 17th September, 1984 requested M/s. Basharatullah, Aslam Chishti and Ehsanul Haq, Advocates to assist the Court as amicus curiae for the reason that the above question was an important question.
3. Before dealing with the merits of the above petition, it may be appropriate to take up the above legal point. Mr. Khalid Manic learned counsel for the petitioner has vehemently urged that subsection (2) of section 3 of the Ordinance expressly excludes the application of the provisions of the Evidence Act, 1872 (I of 1872) and the Code of Criminal Procedure, 1898 (V of 1898) and, therefore, section 514, Cr. P. C. Could not have been pressed into service by the learned Assistant Commissioner, Mastung, particularly in view of the fact that it is not a Court in terms of the above section.
' On the other hand, Mr. Amirul Mulk Mengal, learned Advocate-General and M/s. Basharatullah, Aslam Chishti and Ehsanul Haq, Advocates appearing as amicus curiae have contended that the above section 514, Cr. P. C. Is applicable even in case where the bail bond is forfeited by an Assistant Commissioner exercising the powers of Deputy Commissioner under the Ordinance. .
4. In order to appreciate the above respective contentions, it may be pertinent to refer to the relevant provisions of the Ordinance, which have been referred to by the learned counsel.
The first provision is subsection (2) of section 3, which provides thati except as otherwise provided in the Ordinance, the provisions of the Evident A Act, 1872 (I of 1872) and the Code of Criminal Procedure, 189a (V of 1898 shall not apply to any proceedings under' the Ordinance. It may further be stated that section 16 lays down that a scheduled offence shall be bailable or non-bailable according as the same is bailable or non-bailable under the Code of Criminal Procedure, 1898, and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code. It may also be pertinent to refer to section 17 which empowers the Deputy Commissioner to order any person to execute a bond with or without sureties for keeping peace for the reasons mentioned therein, whereas section 18 empowers the Deputy Commissioner to demand sureties/joint bonds from adult members of the family. It may further be stated that section 20 provides the procedure as to the enforcement of the bonds obtained under the above sections 17 and 18. It will also not be out of context to state that section 23 of the Ordinance provides that any party aggrieved by any decision given, sentence passed or order made by the Deputy Commissioner under the Ordinance, may within thirty days of such decision, sentence or order prefer art appeal to the, Commissioner etc. It may also be stated that section 31 of the Ordinance empowers the Provincial Government to frame rules for carrying out the purposes of the Ordinance.
' Having referred to the relevant provisions of the Ordinance, it may be observed that the submission of Mr. Basharatullah, learned counsel appearing as amicus curiae was that the exclusion under subsection (2) of section 3 of the Ordinance was not absolute, but it was subject to as otherwise provided under the Ordinance. It was further urged by him that section 16 of the Ordinance, in fact, provides otherwise and made the provisions of the Code of Criminal Procedure applicable by providing that a scheduled offence shall be bailable or non-bailable according as the same is bailable or non-bailable under the Code of Criminal Procedure, 1898 and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code. The above contention of Mr. Basharatullah was reinforced by M/s. Aslam Chishti and Ehsanul Hag, Advocates appearing as amicus curiae alongwith him.
' Mr. Khalid Malik, learned counsel for the petitioner in support of his above submission has not referred to any judgment, but has referred to an unreported judgment of a learned Single Judge of this Court dated 6th November, 1983 given in Mir Adam Khaa v. The State Criminal Revision No, 4 of 1933 in which, it was held that though the provisions of section 514, Cr. P.C. Are not applicable, but the provisions of General Clauses Act would be attracted and the authority which can pass an order is entitled to vary, amend, add to or rescind that order. The relevant observations are as follows :- "The opening words of section 514 make the position clear that whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken or of the Court of a Magistrate of the first Class or when the bond is for appearance before a Court, to the satisfaction of such Court" when the tribunal is not a Court then provisions of section 514 are not attracted. The procedure prescribed in section 514, Cr. P. C. Is not to be followed in such case. Under section 16 (I) the Scheduled offences shall be bailable or non-bailable accordingly as the same is bailable or non-bailable under the Code of Criminal Procedure and the Deputy Commissioner shall have the same power. Of granting bail to a person or persons accused of offences as a Court under that Code. Under section (2) the President of a Tribunal can exercise the powers of Deputy Commissioner under this section in regard to a case referred to it for decision. After taking cognizance of the matter the jurisdiction of the normal Courts is ousted and the Deputy Commissioner or the Tribunal shall be the authority to deal with bail matters".
"Now if an authority has the power to admit a person to bail, then it has also the authority to take action in case the concession granted to such person has been violated. It would be illogical that though the Deputy Commissioner has the authority to pass order granting Dail under section 16 but he has no authority to cancel the bail. It cannot be conceived that no action could be taken against the surety, if the accused does not appear before the tribunal. This argument cannot be accepted that in case of non-appearance of accused the action against surety has to be taken in accordance with the provisions of sections 514. When the accused was not appearing before a Court the procedure prescribed in section 514 would not apply. In such cases the provisions of General Clauses Act would be attracted and the authority which can pass an order is entitled to vary, amend, add to or rescind that order. It is not denied that the accused had violated the terms of bond. He had not appeared before the tribunal. The petitioner bad stood surety for the accused for his appearance before the tribunal.
' In such view of the matter I am of the opinion that provisions of section 514, Cr. P. C. Are not attracted in matters within the exclusive jurisdiction of the forum constituted under Ordinance II of 1968 after the cognizance has been taken under this Ordinance."
' On the other hand, Mr. Basharatullah to reinforce his above contention has further submitted that since the Deputy Commissioner for the purposes of grant of bail has the same powers as a Court has under the Code of Criminal Procedure, the consequences flow from it are that the other relevant provisions of the Code of Criminal Procedure can be pressed into service while dealing with the question of bail. In this behalf, he has referred to the following judgments :-
(i) Khair Muhammad Khan and another v. The Government West of Pakistan and others PLD 1956 (W.P.) Lah. 668, in which a D.B. Of the erstwhile High Court of West Pakistan while dealing with a case under the Frontier Crimes Regulation (HI of 1901) held that a Jirga trial is not a trial under the Code and, therefore, fortnightly remand to cust3dy under section 344, Cr. P. C. Would not be necessary. It was further held that, however it was desirable to adopt the procedure of section 344, Cr. P. C. In the matter of remand of the prisoner facing a trial by the Council of Elders under the Regulation.
(ii) Sind Employees Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC
32. In this case, it was urged before the Honourable Supreme Court that the Social Security Court while hearing an appeal under section 59 of the West Pakistan Employees Social Security Ordinance, 1965 from an order of the Institution was not competent to suspend the impugned order of Institution. The above contention was repelled and it was held that the power to grant interim relief is reasonably incidental or ancillary to the main appellate jurisdiction and, therefore, the Social Security Court could suspend the order of the Institution.
' Mr. Muhammad Aslam Chishti, Advocate has referred to the following passage from the Maxwell on the Interpretation of Statutes, Twelfth Edition at pages 212 and 214 :- "On the general principle of avoiding injustice and absurdity, any construction will if possible, be rejected (unless the policy of the ,Act requires it) if it would enable a person by his own act to impair an obligation which he has undertaken or otherwise to profit by his own wrong. "A man may not take advantage of his own wrong. He may not plead .n his own interest a self-created necessity."
"When an act confers an unusual privilege, such as that of an exempt private company of not disclosing its balance sheets, the Court must see that anyone claiming the benefit c" it does, without reasonable doubt, bring himself within the language conferring the exemption." A strict construction is also applied to provisions for technical defences."
' On the basis of the above passages, it was urged by Mr. Aslam Chishti, that the petitioner after having furnished the bail bond and after having obtained release of the accused, cannot impair his obligation arising out of the absconsion of the accused. It was further contended by him that strict construction is to be given to tl provisions for technical defences. He has also referred to the following cases :-
(i) Muhammad Ali v. The State PLD 1964 (W. P.) Pesh. 270 in which the question before a Full Bench of the erstwhile High Court of West Pakistan Peshawar Bench was whether the Deputy Commissioner acting under the Frontier Crimes Regulation (1I1 of 1901) and having granted bail under the F. C. R. Was competent to forfeit the bail bond under section 514, Cr. P. C. It was held that the Deputy Commissioner under section 20 of the F. C. R. Had all the powers of a Court for enforcing the attendance of the parties and witnesses and for these matters could order the forfeiture of surety bond even if it be found that the Deputy Commissioner is not a Court. It was further held that it is nowhere in the F. C. R. Laid down that the Commissioner and the Deputy Commissioner acting under the F. C. R. Were not Courts.
' It was also held that the Deputy Commissioner acting under the F. C. R. Was a Court by virtue of section 20 of the Regulation: Mehr Khan v. The State 1968 1' Cr. L J 398. In the above case, the quashment proceedings filed under the Code of Criminal Procedure, it was contended that the A. D. M. Mianwali was not competent to forfeit surety bond under section 314, Cr. P. C. The bonds were forfeited under section 40 of the Frontier Crimes Regulation and section 43 of the F. C. R. Provided the procedure of the enforcing such a bond. A learned Single Judge of the erstwhile High Court of West Pakistan allowed the quashment proceedings and held that since under section 43 of the F. C. R. The respondent could initiate proceedings for the forfeiture of the bond furnished under section 40 of the Regulation he could not have pressed into service section 514, Cr. P. C.
' It was also urged by Mr. Muhammad Aslam Chishti that since section 16 of the Ordinance refers to the Code of Criminal Procedure for the purpose of bail, it is a case of legislation by reference. In furtherance of the above argument, he has referred to the case of Pakistan International Airlines Corporation v. Chairman, Punjab Labour Appellate Tribunal, Lahore and another (1)
(1) PLD 1979 Lab. 415 in which a learned Single Judge of the Lahore High Court enunciated the principles of interpretation of Statutes and inter alia, held that :- "(a) when a statute adopts a part or all of another statute by specific or descriptive reference the adoption takes the statute as it exists at that time and the adopted provisions with necessary adaptations if any become a part of the adopted statute as if it was written down in it ;
(b) any subsequent addition
(c) when particular sections interpretation of that section ;
(d) when the adopting statute refers to law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of adopting act but all subsequent laws on the particular subject referred to in so far as they are consistent with the adopting law.
5. It was also contended by Mr. Aslam Chisbti that the action for forfeiture of surety bond is not a proceeding under the Ordinance. In this behalf, reference was made to the preamble to the Ordinance. In our view it is not necessary to examine this question as the point in issue can be disposed off for different reasons.
6. Mr. Ehsanul Haq, learned counsel appearing as amicus curiae has referred to the following passage from the Interpretation of Statutes by M. Farani and has urged that since there is a reference to the Code of Criminal Procedure in section 16 of the Ordinance on the question of bail, reference can be made to the Code of Criminal Procedure for the purpose of enforcing the bail bond :-
(i) Incorporation of general statute-Effect of -Where a special statute incorporates a general statute any doubt as to the application of the latter to the particular circumstances must be solved by reference to the former. A special statute containing no provisions inconsistent with a general statute is, however, controlled by the latter, even if this is not expressly incorporated and the powers conferred by it are deemed to be in addition and not in diminution of existing common law rights."
7. Mr. Amirul Mulk Mengal learned Advocate-General has adopted the above arguments of the learned counsel appearing as amicus curiae on the question of applicability of section 514, Cr. P. C.
8. We are inclined to hold that exclusion of the provisions of the Code of Criminal Procedure under subsection (2) of section 3 of the Ordinance is not absolute, but it is subject to otherwise provided in the Ordinance. We are further inclined to hold that section 16 of the Ordinance has, in fact provided otherwise by providing that a scheduled offence shall according as the same is bailable or non-bailable be bailable or non bailable under the Code of Criminal Procedure, 1898 and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code. We are of the view that since the same powers have been conferred upon the Deputy Commissioner in the matter of granting bail for a scheduled offence as are enjoyed by a Court under the Code of Criminal Procedure, by necessary implication, the provisions relating to the enforcement of bail bond contained in the Code of Criminal Procedure have also been made applicable. We are fortified in our above view by the fact that in case of entorcernent of surety bond obtained under sections 17 and 18 of the Ordinance, express procedure has been provided under section 20 of the Ordinance but there is no parallel provision in the Ordinance for enforcing bail bond executed in pursuance of a bail granted under section 16 of the Ordinance which fact indicates that the provisions of the Code of Criminal Procedure were to be applied for enforcing bail bond furnished under section 16 of the Ordinance. The above-quoted Full Bench of Peshawar High Court of 1964 is on all fours applicable to the instant case, wherein the bail was granted under the F. C. R. By the Deputy Commissioner and it was held that since under section 20 of the F. C. R. The Deputy Commissioner had the power to enforce the attendance of the parties and witnesses, it has got all powers of Court under section 514, Cr. P. C. There is a parallel provision to section 2.0 of the Frontier Crimes Regulation in the Ordinance, namely section 10 which provides that for the purpose of the performance of its function under the Ordinance, the Tribunal shall have the same powers as are vested in a Court under the Code of Criminal Procedure, 0398 in respect of enforcing the attendance of any witness or production of any document or other thing.
9. We are further of the view that even otherwise, the power to forfeit surety bond is incidental and ancillary to the power to grant bail. Furthermore, the petitioner after having led the Assistant Commissioner to release the accused on bail upon his furnishing the bail bond, cannot be allowed to urge that he has not incurred any liability under the bail bond or that the Assistant Commissioner has no power to enforce the same.
10. As regards the merits of the petition, it was vehemently urged by Mr. Khalid Malik, learned counsel for the petitioner that the procedure provided for under section 514, Cr. P. C. Was not followed by the Assistant Commissioner while forfeiting the bail bond. In support of his above submission, he has referred to the following cases :- (i)The State v. Abdul Rehman PLD 1965 (W. P.) Kar. 90, in which a learned Single Judge of the erstwhile High Court of West Pakistan Karachi Bench, held that though the bail bond was executed in favour of his H. E. The Governor-General, when in fact such office did not exist but the bail bond was valid. It was also held that language of the bond to be strictly construed.
(ii) Yoshi Khan and another v. Settlement and Rehabilitation Commissioner, Karachi and others PLD 1967 Kar.
295. In the above case, a learned Single Judge of the erstwhile High Court of West Pakistan at Karachi inter alia, held that the order passed without notice is void and nullity in law and any subsequent order passed on void order is also null and void being in violation of the maxim audi alteram partem (No one should be condemned unheard).
(iii) A. L. Zahirul Hug Khan v. The State PLD 1962 Dacca 447, in which a learned Single Judge of the Dacca High Court held that order of forfeiture without opportunity in terms of section 514 (2), Cr. P.
C. Is illegal.
(iv) Wadhawa Singh v. Emperor AIR 1928 Lah, 318, in which it was held by a learned Single Judge of the Lahore High Court that section 496 provides that the bail bond should be in accordance with Form 42 of Schedule V to the Criminal Procedure Code, otherwise no liability would arise,
(v) M. Homi and another- v. Deputy Commissioner of Singhbhum and - another AIR 1953 Pat.-302.
In the above case, it was held by a D. B. Of Patna High Court that under section 514, Cr. P. C. There are two classes of bonds ; firstly a bond under the Code taken by a Court and secondly a bond for appearance before a Court. It was further held that the above first class of bond is subject to two limitations, namely the bond must be taken by a Court and it must be taken u der the Code. It was further held that it was not the intention of the legislature to include a bond executed otherwise than under the provisions of the Code of Criminal Procedure.
11. The above cases cited by Mr. Khalid Malik, learned counsel for the petitioner have no application.
The petitioner was given ample opportunity to produce the accused and also he was served with a show-cause notice against the forfeiture of the bond, but he successfully avoided his liability since 1976 and at one stage, had contended that factually he had not executed the bail bond. Then, he requested for time to produce the accused which opportunity he was granted several times as is clear from the facts stated hereinabove. The three competent forums have examined the legality of the forfeiture of the bail amount. We are not inclined to interfere with the above orders in exercise of constitutional writ jurisdiction. The petition is, therefore, dismissed with no orders as to cost.
' The above are our reasons in pursuance of short order of even date.