This is a ball application under rule 210 of Defence of Pakistan Rules read with sections 498 and 561-A, Cr. P. C. On behalf of Mr. Illahi Bakhsh Soomro, Managing Director of Sind Fine Textile Mills, Shikarpur. Shortly the facts are that F. I. R. No. 50 of 1973 was registered at New Foajdari Police Station, Shikarpur on 20-4-1973 under rule 42 read with rule 49 of the Defence of Pakistan Rules on account of dispute between the employees of the Mill and the petitioner Mr. Illahi Bakhah Soomro.
2. On 25-4-1973, a bail application was moved before the learned Sessions Judge, Sukkur which was rejected by him on 2-5-1973, mainly on the ground that in view of section 5 of the Criminal Procedure Code and sections 8 and 9 of the defence of Pakistan Ordinance and relying on a Full Bench Decision reported in State v. Habib Jalib (PLD 1967 Lah. 1297), he has no jurisdiction to enter- -tain the bail application particularly fn view of the constitution of the special tribunal by the Government of Pakistan by Notification dated 26-4-1973 communicated to the Court on 27-4-1973 transferring the case to the special tribunal for the purpose. Notification of Central Government is as under :- Rawalpindi, the 26th April 1973, SRO No. In exercise of the powers conferred by section 9 of the Defence of Pakistan Ordinance, 1971 (XXX of 1971), the Federal Government is pleased to direct that :-
(a) The Special Tribunal constituted for the Province of Sind under section 8 of the said Ordinance shall try any offence specified in the said section and mentioned in, or arising out of FIR No. 50 of 1973 registered at New Foujdari Police Station, Shikarpur, on the 20th April 1973, against Mr. Illahi Bux Soomro of Sind Fine Textile Mills Limited, Shikarpur; and
(b) the case against the said Mr. Illahi Bux Soomro under clause (j) of sub-rule (6) of rule 42 read with rule 49 of the Defence of Pakistan Rules 9n the Court of Session Judge, Sukkur, shall stand transferred to the aforesaid Special Tribunal.
3. It may be noted that the transfer of the case to the Special Tribunal vide above referred notification has been challenged by the applicant before this Court separately in a Writ Petition No. 513/73 which is still pending decision.
4. The applicant was produced on 28-4-1973, before the Sind Special Tribunal at Karachi, who after considering the F. I. R. Passed an order calling for the case papers from the Court of Sessions Judge, Sukkur and remanded him to judicial custody till 11-5-1973 and on the same day an order was passed granting the applicant `A Class' in the prison on 11-5-1973 the bail application. Of the applicant was taken up by the Tribunal and after hearing counsel for the parties, it was adjourned till 26-5-1973. It may be noted that no final decision has been given by the Special Tribunal on the above stated bail application so far. Mr. Khalid Ishaque learned counsel for the applicant also conceded that he has filed a Writ Petition No. 513/73 before this Court wherein amongst others he has challenged the legality of the Constitution of the Special Tribunal. Alongwith the writ petition, he has filed a bail application as well which has beers admitted and adjourned to some other date for decision. Main grounds of this application are that the applicant has been implicated falsely on political grounds and the case of the applicant does not come under mischief of rule 42(6)(j) of the Defence of Pakistan Rules because the provision in its terms excludes an act which would be covered by the definition of an Industrial Disputes Ordinance, 1959, that the learned Sessions Judge, Sukkur has erred by coming to the conclusion that he has no jurisdiction to entertain bail application as there was no case pending before any competent Court or tribunal from which the case could have been transferred to Sind Tribunal, Karachi under section 9 of Defence of Pakistan Ordinance, and that Defence of Pakistan Ordinance and Defence of Pakistan Rules are not valid and binding and operative laws in Pakistan, particularly sections 9, 10 and 13 of the Ordinance are bad for excessive delegation of powers and are hit by Articles 139(2), 21, 22, 23 and 7 of the Interim Constitution of Pakistan, and that the applicant is no more required for investigation when the charge---sheet is complete and that rule 210 of Defence of Pakistan Rules does not and cannot operate to curtail the powers of the Court under sections 497, 498 of Cr. P. C. And the applicant is a person of high position In life, the offences alleged against him are not punishable with death or transportation for life, therefore, he may be released on bail.
5. From the very outset Mr. A. H. Memon, learned Advocate-General submitted that as Special Tribunal has been set up by the Federal Government under the Defence of Pakistan Ordinance and the case of the applicant already stands transferred to the Tribunal which has not only taken cognizance of the case but is considering the bail application of the applicant, therefore, this Court has no jurisdiction under sections 498 and 561-A, Cr. P. C. To entertain the bail application. He also pointed out that admittedly the constitutional jurisdiction of this Court has been invoked by the applicant by Writ Petition No. 513/73 and in bail application alongwith the petition is pending decision, this Court may not exercise its criminal jurisdic--petition. The validity or otherwise of Defence of Pakistan Ordi--nance and Defence of Pakistan Rules being ground No. 4 of this application was not argued before me by the counsel for the applicant because he submitted that this question has already been challenged in the above stated writ petition.
6. On the legal objections raised by the learned Advocate---General with regard to the jurisdiction of this Court under sections 498 and 561-A of Cr. P. C., I have heard both the learned counsel at length, because my opinion the question of deten--petition of tae appellant on reasonable grounds or otherwise and the entertainment of application under rule 210, Defence of Pakistan Rules can be considered only after coming to the conclusion that this Court has jurisdiction in the ratter. In support of his contention Mr. Khalid Ishaque relied on an unreported order of their Lordships of the Supreme Court in Petition for Special Leave to Appeal No. 36/73, Mian Tufail Muhammad v. The State wherein their Lordship granted special leave to appeal to Mian Tufail Muhammad against the order of the Lahore High Court, is Criminal Miscellaneous Application No. 693-B of 1973 and granted Interim bail to the applicant. Their Lordships have observed: "As regards the question of interim bail, we have not intention of falling into the same error, as committed by the High Court, of undertaking an examination and analysis of the speech alleged to have been delivered by the petitioner. The stage has not yet arrived. However, as important questions of law touching the liberty of the subject have arisen in the case and we have granted leave to appeal to examine them we would allow interim bail to the petitioner in the sum of Rs. 10,000. With one surety in the like amount, to the satisfaction of the Deputy Registrar of this Court.
If in the meantime the petitioner indulges in any subversive activity or makes any subversive speech, the respondent will be at liberty to apply to this Court for the cancellation of the bail."
7. In the above stated appeal rule 210 of D. P. R, was challenged as ultra vires of the powers conferred on Federal Government under subsection (3) of section 3 of Defence of Pakistan Ordinance (XXIII of 1971) as well as the question and extent of powers of the High Court for granting bail under sections 497 and 498, Cr. P. C.
8. Next Mr. Khalid Ishaque counsel for the applicant referred to Petition for Special Leave to Appeal No. K. 28 of 1972 Begum Silwat Sher A.I v. The State. It was filed against an order of this Court dated 13th September 1972. Whereby the ball application of the applicant was rejected. Legal questions were raised before their Lordships of the Supreme Court, the applicant was however granted interim bail, and their Lordships observed, that the appeal was to be placed before a larger Bench as it involves the question of vices of rule 210 of Defence of Pakistan Rules. Counsel further referred me to Criminal Bail Application No. 205/73 Ghulam Muhammad Dossul v. The State wherein, an application under section 498, Cr. P. C. r/w rule 210, D. P. R. Was entertained by the learned Chief Justice and the applicant was granted ball mainly on the consideration that the First Information Report alleging offences under section 42(6) read with rule 49 of D. P. R. Was in the vaguest language and that First Information Report hardly be said as a First Informa--petition Report at all.
The learned counsel lastly and very vehemently relied on a Full Beach decision The State v. Habib Jalib. Mr. A. H. Memon, learned Advocate-General amongst other cases which would presently be discussed, also as a last resort heavily relied on this judgment. The distinguishing feature between the case of Mian Tufail Muhammad, Begum Silwat Sher A.I and Ghulam Muhammad Dossul referred by Mr. Khalid Ishaque and the case before me, is that none of the above cases was referred by the Federal Government to a Special Tribunal nor any Special Tribunal was in fact constituted for trial of these cases under Chapter III of Defence of Pakistan Ordinance, 1971, while in the present case as was stated earlier Special Tribunal has already been constituted by the Federal Government and the applicant is facing trial before the same and his bail application is also pending decision before Tribunal, therefore, In my opinion the cases cited by Mr. Khalid Iahaque would not be of much help to him. Mr. A. H. Memos, learned Advocate-General relied on In re: Bhuvaraha Iyangar (AIR 1942 Mad. 221). This was a case where on 1st October 1941, the petitioner delivered a speech in a Public meeting and on 16th October the police filed a F. I. R. In the Court of Joint Magistrate of Naga--patam. Petitioner was arrested and he was charged for offences under section 34 (6) (a) (g) (k) and (p) read with sections 38(1) (a) of Defence of India rules, 1939. Rule 38(1)(a) states that no person shall, without lawful authority or excuse do any prejudicial Act. Sub- rule (6) of rule 34 indicates what is meant by a prejudicial act. Clause (e) of that sub-rule says that It is a prejudicial act to bring into hatred or contempt or to excite dissatisfaction towards His Majesty or the Crown representative or the Government established by law in British India, or in any other part of His Majesty's dominions, Clause (g) states that it is a prejudicial act to cause fear or alarm to the public or to any section of the public. On 20th October the petitioner applied for bail, which was rejected by Joint Magistrate by reason of the provisions of rule 130-A and the Sessions Judge agreed with the Joint Magistrate when a similar application was made to him. Thereafter the petitioner asked the High Court in the exercise of its a revisional powers, to set aside the orders of the Joint Magistrate and the Sessions Judge, and requested to grant him bail. Apart from challenging the vices of rule 130-A, reliance was placed on section 14 of the Defence of India Art which reads as follows :- "Save as otherwise expressly provided by or in this act, the ordinary criminal and civil Courts shall continue to exercise jurisdiction."
9. The section was inserted because power was given to the Provincial Government in Chapter III, containing sections 8 to 13 to constitute Special Tribunals to try offences u-den the rules framed by the Central Government by virtue of its power under Defence of India Act. It was argued on behalf of the petitioner that as the Special Tribunal had not been set up and all the offences under Defence of India Act were still tried In the Ordinary Criminal Courts, therefore, the applicant was entitled to grant of bail. This argument was however repelled by their Lordships Mr. Leach, C. J. And Happell. J. By observing that section 14 does not however mean that the trials in the Ordinary Criminal Courts are not subject to special provisions of the Act Section 3 states that a rule made under rule 2 or an order made under such a rule, wall have effect notwith--standing anything inconsistent therewith is contained in an enactment other than the Defence of India Act or in an instru--ment having effect by virtue of an enactment other than the Act. In respect of offences which come within the rules framed under the Defence of India Act that Act governs all other statutory provisions and therefore the provisions of the Code of Criminal Procedure with r Bard to ball do not here apply if rule 130-A is intra vires, which we hold it to be, and it was held that the petitioner was not entitled to ask tae Court to release him on bail and his application was dismissed.
10. Next case relied by Advocate-General is a Full Bench decision Gopal Marwari v. Emperor (AIR 1943 Pat. 245) which was a case where about 20 revision applications were filed in the High Court against the convictions by Special Criminal Courts Ordinance II of 1942 set up under Defence of India Act, 1939 by Special Magistrates. Almost the entire Defence of India Act, 1939 and Special Criminal Courts Ordinance II of 1942 whereby Special Magistrate was empowered to try the offences under Defence of India Act were discussed in this Judgment Including powers of the High Court under Criminal Procedure Code to interfere with the proceeding and the judgment of Special Tribunals set up under the Act. It was hold by their Lordships that, "It must now be considered whether in such circumstance, having regard to the provisions of section 26 of the Ordinance, this Court has any Jurisdiction to interfere either under section 491 of the Code, or otherwise. In Banwari Gope's ease the Full Bench held that she Court could interfere under section 491 where the case was one, to which the Ordinance as a whole, including section 26, was not applicable. The point here however is not quite the same. The petitioner had no vested right of trial in the ordinary Courts. He could and can be tried under the Ordinance. It is merely a case where the particular Special Magistrate who tried him had not power to do so. Section 26 of the Ordinance 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.
The position is however that Mr. Usman's proceedings were wholly void, being without jurisdiction.
Under section 530, Criminal P. C.
If any Magistrate, not being empowered by law in this behalf, does any of tine following things, viz. Tries an offender, his proceedings shall be void.
Section 530 is in do way inconsistent with the provisions of the Ordinance, and its operation is therefore preserved by section 27 thereof. This being so, there is no question of any interference with Mr. Usman's proceedings. The position is that in the eye of the law, the petitioner---s trial and conviction berg void, he has not been tried and convicted. There is no conviction to set aside. It is merely a question of indicating the position, and nothing in the provisions of section 26 can prevent the High Court from indicating that position. It is that the petitioner is being detained in custody by the executive authorities as a convicted prisoner, when they have no legal authority to do so through, of course, his detention as an under trial prisoner might be quite lawful. Therefore, the High Court can and should interfere to put a stop to that detention under the provi--sions of section 491.
It is not a case of revising the order of the Special Magistrate, or assuming any jurisdiction to interfere with his proceedings under section 491, a jurisdiction which section 26 takes away. It is interfering only with the act of the executive authorities in detaining in custody as a convict a person who has not been convicted. The High Court, if it did not interfere in such a case upon a proper application would be neglecting its duty of preserving the liberty of the subject against arbitrary or illegal acts of the executive authorities.
11. It may be voted that the language of Chapter III of Defence of India Act is more or less identical with Chapter III of Defence of Pakistan Ordinance, 1971. With regard to Special Tribunal except that under the Defence of India Act under section 8, power to constitute a Tribunal is given to Provincial Government while in Defence of Pakistan Ordinance, 1971, powers are vested in the Central Government. Section 9 of Defence of India Act, 1939 and Defence of Pakistan Rules, 1971 concerns jurisdiction of Special Tribunal. Section 10 concerns procedure of Special Tribunals and also of the same nature so are sections 11 and 12 which relates to exclusion of public from proceedings of Special Tribunals. Section 13, is identical which relates to appeals from sentences imposed by Special Tribunals and exclusion of jurisdiction of ordinary Courts Including the High Court. For the sake of convenience section 13, Defence of India Act, and Defence of Pakistan Rules (sic) are given as under:-
(a) to death or transportation for life, or
(b) to imprisonment for a term extending to ten years under section 5 of this Act or under subsection (1) of section 5 of the India Official Secrets Act, 1923, as amended section 6 of this Act-- 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 farce, or of any thing 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 my jurisdiction of any kind in respect of any proceedings of a Special Tribunal.
(3) The powers conferred upon the Provincial Government and the Governor-General by Chapter XXIX of the Code shall apply in respect of a person sentenced by a Special Tribunal.
Section 13 of Defence of Pakistan Ordinance, 1971: --- 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 subsection (4) of section 5 of the Official Secrets Act, 1923 (XIX of 1923) 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, lid no Court shall have authority to revise such order or sentence, or to transfer my 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 commutation of sentences passed by a Special Tribunal, 110 however, that the powers exercisable by the Provincial Government under that Chapter shall be exercised by the Central Government.
12. Section 14 relates to jurisdiction of Ordinary Courts. For the sake of convenience both the sections are given as under :- "Defence of India Act, section 14.-Save as otherwise expressly provided by or under this Act, the ordinary criminal and civil Courts shall continue to exercise jurisdiction."
Defence of Pakistan Ordinance, section 14-`(1) Except as may be provided in this Ordinance or in any rule made thereunder or in any order made under any such rule by the Central Government or the Provincial Government or by an officer not below the rank of collector empowered under subsection (4) or subsection (5) of section 3 to make such order, the ordinary criminal and civil Courts shall continue to exercise jurisdic--petition.
(2) A provision in an such rule or order as aforesaid to the effect that the decision of any authority, not being a Court shall be finial or conclusive shall be a sufficient except--ing provision within the meaning of subsection (1)."
13. A comparative reading of both the sections goes to show that provision of section 14 of Defence of Pakistan Ordinance are more strict and prove to exclude jurisdiction of Ordinary Courts encompassing wider range of matters than the limitations put by section 14 of Defence of India Act, 1939.
14. A ratio of the above-stated Madras and Patna judg--ments appears to me to be that provisions of Criminal Procedure Code do not apply in respect of offences which comes within the rules framed under Defence of India Act and that Act alone governs all other statutory provisions including rule 130-A with regards to bails. Rule 130-A, Defence of India Rules is as under :- '130-A.-Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no person accused or convicted of a contravention of these Rules shall, if in custody, be released on bail or on his own bond, unless-
(a) the prosecution has been given an opportunity to oppose the application for such release, and
(b) where (the prosecution opposes the application and) the contravention is of any such provision of these Rules as the Central Government (or the Provincial Government) may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention).
Now this rule 130-A, Defence of India Rules is analogous to rule 210 of Defence of Pakistan Rules, 1971 which is as under ;-- "Notwithstanding anything contained in the Code no person accused or convicted of a contravention of these rules or orders made thereunder, if in custody, be released on bail or on own bond, unless-
(a) the prosecution has been given an opportunity to oppose the application for such release, and
(b) where the prosecution opposes the application and the contravention is of any such provision of these rules or orders made thereunder as the Central Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention."
Apart from the above judgments, learned Advocate-General relied on a judgment 9n Agha Abdul Karim Shorish Kashmirt and others v. Province of West Pakistan (PLD 1969 Lah. 289).
15. This was a case where the Provincial Government acting under rule 52(1) and (2) of the Defence of Pakistan Rules, 1965, by one order forfeited certain publications and by another order forfeited the printing press wherein the publications had been printed and published. These two orders were made subject-matter of referenc3 to a tribunal constituted under rule 52(4) of the rules. However, a third order was passed by the Government whereby a declaration under sec--petition 7 of the Press and Publications Ordinance, 1960 were shade and subscribed by the publisher was cancelled. It was argued that all the orders were made by the Government behind the back of the printers and publishers and hence were bit by the rule of audi alteram partem. It was held by the Division Bench that "the declarations as to confiscation, though ex post, care in the nature of interim or provisional orders which will remain in force till a final adjudication is made by the tribunal. This, amply satisfies the requirement of the rule audi alteram partem in this case. The same view wag taken in a recent case before the Dacca High Court in Tafazzal Hussain v. Province of East Pakistan. In the case it was held that ex post facto hearing by the tribunal set up under rule 52(4) constitutes 6afcient compliance with the rule of natural justice. However, the order in Annex.
R/4 whereby the declaration made and subscribed by petitioner No. 1 under section 7 of 1960 Ordinance was cancelled not being a subject-matter of reference to the tribunal will not be on a par with the two orders of confisca--petition and therefore will be hit by the rule laid down by their Lordships of the Supreme Court in Faridsons Ltd. v. Government of Pakistan a .4lanzu;-ul-Hag v.
Controlling Authority and Province of East Pakistan v. Nur Ahmad. On this view of the matter, therefore, it was held that the order purporting to cancel the declaration Trade and subscribed by petitioner No. 1 under section 7 of the 1960 Ordinance, being in violation of the rule in audi alteram partem, is void ab initio and is, therefore, set aside as being without lawful authority and of no legal effect.
16. In my opinion this judgment also supports the con--tention as the other above stated two judgments of the learned Advocate-General that once a matter has been referred to a Properly constituted tribunal under Defence of Pakistan Act and Rules which has taken cognizance of matter as in this case, the powers vested in this Court under Criminal Procedure Code cannot be exercised including the powers of grant of bail under section 498, Cr. P. C. Provided that the tribunal is properly constituted and it exercises powers vested in it by the statute.
17. Had the matter not been referred to the Sind Special Tribunal by the Federal Government, I would perhaps have gone into question of the reasonableness or otherwise of the detention of the applicant under section 210, Defence of Pakistan Rules. Lastly both Mr. Khalid Ishaq counsel for the application and Mr. A. H. Memon, Advocate-General heavily relied on the judgment reported in The State v. Habib Jalib. On my questioning both the learned counsel stated that they are not aware of any reported or unreported judgment of this Court or of the Supreme Court where this judgment was referred, relied or dissented. Therefore, I am left with no alternative but to interpret the judgment in light of the light of this arguments and circum--stances of the case.
18. This was a case where Habib Jalib was arrested for contravention of rule 47 of the Defence of Pakistan Ordinance, 1965. He applied for bail which was rejected by Magistrate 1st Class Lahore. He, thereafter, made an application under section 497, Cr. P. C. To the Sessions Judge, Lahore who granted the bail. Tae State challenged the grant of bail to the applicant before the High Court oz the revisional side under section 439 read with section 497(5), Cr. P. C. And moved for cancellation of bail. It was argued on behalf of the State that since the objectionable portions of the poem recited by Habib Jalib at a public meeting rot only brought into hatred and contempt the Government established by law in Pakistan but also excited disaffection towards the Armed Forces and prejudiced Pakistan's relations with other powers which amounted to prejudicial act, as defined by rule 41, sub-rule (6) punishable under rule 47 with imprisonment which may extend to five years, or with fire or with both and as tile case against Habib Jalib under rule 47 was triable by the Special Tribunal constituted under section 8 of the Ordinance, therefore, the learned Additional Sessions Judge was not competent to pass the order granting bail, as the jurisdiction of ordinary Courts was barred. Their Lordships of the Fall Peach after refereed to section 5, section 29 of the Criminal Procedure Code and section 14 of tine Defence of Pakistan Ordinance, 1965 as well as notification of 11th November 1966 by the Government constituting Special Tribunal for trial of Habib Jalib, came to the conclusion that, the jurisdiction of the ordinary Courts was tarred to try those offences which the Central Government notified by general or special order to be triable by a Special Tribunal, and did not agree with the argument that section 14 of the Ordinance saves the jurisdiction of the ordinary Criminal Courts. They also rejected the argu--ment, that the learned Sessions Judge was competent to grant bail in the absence of setting up of a Tribunal constituted by the Central Government and pointed out that although one of the members had not joined the Tribunal when the application of Habib Jalil came up for consideration before the learned Additional Sessions Judge yet the Special Tribunal was com--petent to take cognizance of offences without the accused being committed to it for trial and tic contention that the Tribunal could not take cognizance of offences without the accused being committed to it for trial and the contention that the Tribunal could not take cognizance except upon a report in writing of the facts constituting such contravention made by a public servant was successfully met with the argument that the Police Report in this case amply complied with the provisions of rule 205(1) of the Defence of Pakistan Rules. With the publica--petition of Notification No. S. O. R. 174(R)/66, dated the 11th of November 1966. The offence committed by the respondent was triable exclusively by the Special Tribunal and as such the considerations laid down in rule 206 of the Defence of Pakistan Rules, 1965 for the grant of ball applied.
19. Their Lordships relied on Samila v. Emperor (AIR 1917 Lah. 138) accepted the application and cancelled the bail granted to Habib Jalib by the learned Sessions Judge, Lahore, holding that he had no jurisdiction to grant the bail.
20. In Samila case by an order dated 19th April 1915, under section 3(1) of the Defence of India Act, 1915, the Local Government had directed that all persons accused of that offence committed on 27th February 1915 at Basti Naurang should be tried by Commissioners appointed under the provisions of the same Act.
21. It so happened that at the time of the session of the Tribunal the appellant was absconding the Tribunal was later on dissolved but the initial order of the Government remained unrevoked. It was argued on behalf of the Government that as the Tribunal is no longer in session the jurisdiction of the Ordinary Courts must be held restored. This argument did not find favour- with their Lordships who held :- "In this case the order under the Defence of India Act provides a special Tribunal for a certain offence and recourse must be had to that Tribunal, and to no other, for so long as the order remains in force. The appellants fall within the purview of the order and their conviction by the District Magistrate conravenes that order."
22. After giving the anxious thoughts to the arguments advanced by the counsel for the parties and the rule laid down in the above cited judgment, I am of the opinion that the ratio of the judgment in Habib Jalib's case instead of supporting the contention of the learned counsel for applicant goes against him because their Lordships have clearly followed the above cited judgment where it was held that when the Government validly refers a case for adjudication to a Special Tribunal for trial of particular person for particular offence under the Defence of Pakistan Act, trial must be held by the Tribunal. It may be noted that ire Samila case even the Special Tribunal stood dissolved yet the High Court had quashed the order of the learned Judge for the jurisdiction of the ordinary Courts was ousted under the Criminal Procedure Code and that is why in Habib Jalib case it was held that the learned Sessions Judge had no jurisdiction to grant the bail to the applicant whose bail was therefore cancelled by the High Court.
23. In the present case not only the Sind Special Tribunal has taken the cognizance of the case under the Defence of Pakistan Ordinance but a bail application moved by the applicant remains to be decided by the Tribunal. Unless the very constitution of the Tribunal is held to be invalid, which question has not been argued before me, this Court has no jurisdiction under section 498, Cr. P. C.
Therefore, I am of the opinion that no interpretation of the Habib Jalib case can: be made other than that this Court has no jurisdiction to grant bail in the matter for which Special Tribunal has been appointed and which has taken she cognizance of the case. The observations of their Lordships in the last paragraph No. 9 of the judgment tend to refer to wider powers of this Court on the constitutional side, but it does not mean, that it can: be interpreted that this Court has powers under the Cr. P. C. The observations in last para. In my opinion are in the nature of obiter dicta.
24. For the reason given above I hold that the powers under the Cr. P. C. Including the powers of grant of balls are not to be exercised particularly so when two similar bail applications of the applicant one before the Sind Special Tribunal and the other before a Division Bench are pending decision.
25. The result is that this bail application in my opinion is misconceived which is hereby rejected.