' MUFTAKHIRUDDIN, J.-By this petition the orders, dated 8-1-1984, passed by the Member, Board of Revenue (Judicial) Baluchistan, Quetta has been challenged and it has been prayed that the petitioners Nek Muhammad son of Moulvi Muhammad Yagoob and Abdul Fateh son of Muhammad Hassan both Umrani by caste be released on bail as they are in detention since 25-2- 1982 and they have become entitled to be released on bail in view of the proviso (iii) of section 497(1), Cr. P. C. Which provision according to the petitioners has been adopted by the Criminal Law (Special Provisions) Ordinance, 1968 (hereinafter referred to as the Ordinance).
2. The petitioners were arrested in connection with an F. I. R. Lodged on 15th February, 1977, by one Muhammad Ishaq son of Rasool Bakhsh wherein it was alleged that the petitioners are responsible for the murder of one Abdul Sattar son of Maula Bakhsh, the respondent No,
4. Since no challan could be presented to the authorities having jurisdiction to try the case, the bail application moved on behalf of the petitioners was entertained by Sessions Judge, Quetta who enlarged the petitioners on bail on 14th June, 1977. However, the challan was submitted on 30-6-1978, and the petitioners remained on bail upto 5-10-1980, when the Deputy Commissioner, Nasirabad exercising powers under Ordinance cancelled their bail on 5-10-1980. The Deputy Commissioner, however, released the petitioners on bail on 19-101980. Being aggrieved of this order of the Deputy Commissioner, Nasirabad, Maula Bakhsh, the father of the deceased approached the Commissioner for cancellation of the bail and his appeal was accepted, on 22-5-1982. The petitioners filed a revision petition before the Member, Board of Revenue, Baluchistan on 2-6-1982, who declined to release the petitioners on bail vide his orders, dated 28-5-1983. A Constitutional Petition No, 116 of 1983, was filed in this Court and it was urged that since, the petitioner's detention had exceeded one year they are entitled to the benefit of proviso (iii) of section 407(1), Cr. P. C. And this aspect of the matter was not considered by the Member, Board of Revenue the High Court, therefore, remitted the matter to the Member, Board of Revenue to consider : "Whether the petitioners are entitled to the benefit of new proviso and whether it is applicable in such circumstances."
' The respondent No, 1 vide his order, dated 29-12-1983, came to the conclusion that the petitioners are not entitled to bail as they are responsible for causing the delay by filing, the appeal, revision and the writ petition and during this period the proceedings could not be taken by the Tribunal and the petition was dismissed. The petitioners have come to this Court once again.
3. The main contention of the learned counsel for the petitioners is that the petitioners are entitle to the benefit of proviso (iii) added to section 497(1), Cr. P. C. Vide amendment made on 22-12-1979, through Ordinance No, LXXI of 1979, the relevant proviso added reads :-
(3) Amendment of section 497, Act V of 1898.-In the Code, in section 497, in subsection (1), in the second proviso, for the full-stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely : "Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that, any person shall be released on bail
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded ; or
(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded."
' The contention of the learned counsel for the petitioner proceeds on the ground that the amended provisions of section 497, Cr. P. C. Containing proviso (iii) should be read as part of Ordinance II of 1968.
4. On 27-6-1984 during the course of arguments we found that some points of public importance wine are likely to affect a large number of cases are involved and as such the matter should be thoroughly thrashed out. We accordingly requested Mr. Basharatullah and Muhammad Ansari the senior members of the Bar to assist us in the determination of the controversy, and they readily responded. Before we proceed to examine the respective contentions for and against it would be desirable to survey the legislative history of the provisions as contained in Criminal A Law (Special Provision) Ordinance, 1968 popularly known as Ordinance II of 1968. It was promulgated by the Governor of West Pakistan) through Gazette of West Pakistan Extraordinary, 16th January. 1968, and was extended to the Areas specified in the schedule. The place where the offence in the instant case is alleged to have been committed falls in the schedule. Some of the special features of this Ordinance are that offences punishable by the Pakistan Penal Code other than an offence specified in section A of Part I of the Schedule to the Conciliation Courts Ordinance, 1961 were made schedule offences and are triable only in the manner provided by this Ordinance. The trial is held by the Tribunal constituted by the Deputy Commissioner (section 5) after taking cognizance of the schedule offence (section 4) while the order is passed by the Deputy Commissioner on the receipt of the report from the Tribunal and by the provisions of section 3(2) of the Ordinance the provisions of Evidence Act and the Code of Criminal Procedure, 1898, had been excluded for trials under the Ordinance. It may be noted at this stage that no sentence exceeding fourteen years can be passed for offences triable under the Ordinance. Sections 16 and 17 of the Ordinance as then existed in the year 1968 read :- "16. Scheduled offences to be cognizable.-(1) All scheduled offences shall be cognizable.
(2) Any private person may arrest or cause to be arrested any person who is reasonably suspected of being concerned in any scheduled offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of having been so concerned and, without unnecessary delay, make over or cause to be made over the person so arrested to a police officer or, in the absence of a police officer take such person so arrested or cause him to be taken in custody to the nearest police station.
17. Bail.-(1) Scheduled offence shall be bailable or non-bailable according as the same is bailable or non-bailable under the Code of Criminal Procedure, 1898 (V of 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.
(2) The President of a Tribunal may, in regard to a case referred to the Tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section ' By Act II of 1972 Criminal Law (Special Provisions) (Amendments) Act, 1972 after subsection (2) the following addition was made in section 16, which is reproduced below.- "Addition in section 16.-After subsection (2) the following subsection shall be added :-
(3) The Court shall except where it is of the opinion that the delay in trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person may be released on bail-
(a) who being accused of an offence punishable with imprisonment of either description not exceeding 7 years, has been detained for such offence for a period exceeding 6 months and whose trial for such offence has not concluded ;
(b) who being accused of an offence punishable with imprisonment of either description exceeding 7 years, has been detained for such offence for a period exceeding one year, and whose trial for such offence has not concluded."
' This added provision and the proviso (iii) of section 497 (1), Cr. P. C. As would be seen by comparison are in pari materia. Unfortunately the amendment made in section 16 of the Ordinance was omitted by Act XVIII of 1974 (PLD 1975 Statutes Baluchistan, page 44). In spite of omission of section 16 (3) in the Ordinance the learned counsel for the petitioners urges that the petitioners are entitled to the benefit of the proviso (iii) of section 497 (1) and according to the learned counsel the Deputy Commissioner or the President of the Tribunal have the same powers of granting bail to person or persons accused of an offence as a Court has under the Code as the provisions of Cr. P. C. Have been adopted by Ordinance and since the petitioners are detained since 25-2-1982 and their trial has not concluded they are entitled to be released on bail.
5. The adoption of provisions of earlier statutes by reference while enacting a later law is generally called legislation by reference or by incorporation. It is for avoiding the necessity of repeating such provision in subsequent act dealing with same matter. The rules of interpretation with regard to such a way of legislation have received the consideration of the Judges and the text-writers. The Privy Council in State v. Hindustan Cooperative Insurance Society (1) has held :- "Where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events, if it is possible for the subsequent Act to function effectually without the addition "
This dicta of the Privy Council was borrowed with approval by their Lordships of Division Bench of the Lahore High Court in Messrs Farooqui's
(I) AIR 1931 P C 149 case (1). The same conclusion has been arrived at by Gul Muhammad Kban, in Pakistan International Corporation's case (2). The position thus cannot be disputed that when some provisions of an earlier Act are incorporated in a later Act, the incorporated provision for all practical purposes become the part of the later Act and no subsequent change in the earlier Act shall apply to the incorporated provisions of the later Act!) unless the same are applied expressly or by necessary intendment. However, when Legislature in adopting the procedural provision of another Act, made substitution in certain matters, it will be inferred that in matters not specified no substitution was intended. Keeping these principles in view the contention of the learned counsel for the petitioner is to be assessed. The provision which is now being pressed into service by the learned counsel for the petitioners as contained in proviso (3) to subsection (1)of section 497, Cr. P.
C. Is worded practically in the same language which was added to section 16 as subsection (3) to section 16 of the Ordinance in 1972 but later omitted in 1974. If effect is given to argument it would seem to follow that repeal of section 16 (3) in Ordinance II of 1968 in the year 1973 would be wholly ineffective and in one sense operate as if it has been re-enacted, a proposition which we are not prepared to agree for the simple reason that proviso (3) of section 497 (1), Cr. P. C. Was not a part of section 497 upto 1968, then how can that be regarded as incorporated in the Ordinance. This provision was not part of Criminal Procedure Code when Ordinance II of 1968 was promulgated nor in adopting the provisions of Cr. P. C. There is anything to suggest that the Legislature intended to bind themselves to any future addition which might be made to the Cr. P. C. The omission of section 16 (3) by Act XVII of 1974 Criminal Law (Special Provisions) (Amendment) Act, 1974 contains in itself a sufficient answer to the contention with which we are dealing, and the effect of the repeal or omission in 1974 was not to give effect to the concession to the accused on the basis of his detention alone. Tit deliberate omission was an indication of the Legislature's intention. The Legislature in its wisdom had withdrawn the facility by enacting Act XVII of 1974 and we need not search the reasons which prompted the Legislature to withdraw that concession as it was done by the elected Legislature. We care clear in our minds that the statute will not be construed to permit an act to be done indirectly when the statute prohibited it directly and the latest expression of the law-makers, has never been and indeed cannot be ignored and must prevail. This is a matter which may engage the attention of the legislative authority. We cannot add in Ordinance of 1968 anything which is not found there. Ordinance II of 1969 is a special law, qua of the Code of Criminal Procedure and the Evidence Act and continue to remain in force in their own respective field of operation. There is a general presumption that the Legislature must be presumed to have always D known the laws of the country more thoroughly as compared to the knowledge of an ordinary citizen. (See PLD 1970 Quetta 49. The history of the legislation as demonstrated above leaves no doubt in our minds that repeal/omission of the provision similar to the one as contained in proviso
(3) of section 497 (1), Cr. P. C. Was deliberate and with consciousness and when law-making power distinctly states it design, no place is left for construction. We, therefore, regard the provision in sections i6 and 17 in the Ordinance H of 1968 as doing nothing more than incorporating the provision from Cr. P. C. As it then existed, and for convenience of
(1) PLD 1970 Lah. 179 (2) PLD 1979 Lab. 145 drafting doing so by reference to that Code, instead of setting out for itself at length the provision which it was desired to adopt.
6. Mr. Moquim Ansari was of the view that there is a conflict between Ordinance II of 1968 and the Cr. P. C. But in our minds both can function in their respective fields, and if the Legislature wants to restore the benefit there is nothing to prevent it, and till it is done we are clear in our minds that petitioners were not entitled to claim the benefit on the basis of proviso (3) added to section 497(1), Cr. P. C. In 1979. The learned counsel appearing for respondent No, 4 has pointed out that for more than one year the record has remained with the Member, Board of Revenue and as such no proceedings have been conducted. Since the proceedings are being taken by the functionaries established under Ordinance II of 1968 and the orders have been passed with jurisdiction, there is no scope for our interference in the Constitutional Jurisdiction.
The upshot of the above discussion is that no interference is called for and the petition is accordingly dismissed. Since the matter had been decided only on legal point, we order that the parties should bear their own costs.
7. Before we part with the case we would like to place on record our appreciations for the valuable assistance rendered to us by Mr. Muhammad Moquim Ansari and Mr. Basharatullah, Advocates.
8. A copy of this judgment be forwarded to the Law Secretary, Government of Baluchistan for bringing the matter to the notice of the Government for such action as may be deemed fit.
We realize that one feels a sense of revolt at caging people in jail for years without a trial. It is certainly a shocking state of affairs and is definitely something wrong with the spirit of the system.
The criminals often seem to engage the attention of mass media more than the victims. People definitely want that crime and criminals be brought under control H and people be safe in streets and in homes but the judicial process becomes a mockery if the trial takes a long time. The Government is not redeemed by showing chat they have established the system but no protection to the accused in criminal proceedings. It is for the Government to provide a system which may ensure that the balance has been fairly struck.