TUFAIL ALI A. RAHMAN, C. J.----On the 1st of September 1972, we heard arguments at some length on applications made for ad interim bail in Constitution Petitions Nos. 353, 362, 367, 374, 382 and 389 of 1972, each of which was a petition challeng--ing the validity of the detention of one or more persons either under the West Pakistan Maintenance of Public Order Ordinance, 1960 or the Defence of Pakistan Rules made under the Defence of Pakistan Ordinance, 1971.
2. Being doubtful of our jurisdiction to grant bail, pending the decision of a petition under Article 201 of the Interim Constitution, we invited counsel to satisfy us first that we had power to do so. Mr. Khalid M. Ishaque, who appeared in four of these petitions took upon himself, with the consent of the other counsel the main burden of attempting to pursuade us that we had the power to pass the orders which were sought. He contended, to start with, that these were really petitions for the writ of habeas corpus and that, since in England the Judges have always held that there is jurisdiction, pending the hearing of a petition, to grant bail it must necessarily follow that this Court also has similar powers. In support of the contention that, in England at least, there is such power counsel relied upon Halsbury's Laws of England, 3rd Edition, Vol. II, paragraph 92 which may usefully be reproduced "92. Custody pending hearing.-Upon the return and the production of the party on whose behalf it was issued, the authority under which the original commitment took place is suspended, and, until the case is finally disposed of, the custody of the prisoner is under the control and direction of the Court to which the return is made. The prisoner is detained not under the original commitment, but under the authority of the writ. Pending the hearing the Court has power, even after the return is filed, to remand the prisoner to the prison where he is in custody or to any other place of commitment and to bring him up from time to time by rule of Court until he is either bailed, discharged, or remanded. The Court also has power to bail the prisoner de die in them pending the argument as to the sufficiency of the return to the writ." To our mind, however, there are various reasons why we cannot accept the contention that either the powers of this Court or the procedure is the same as that obtaining in England. In the first place all thecae petitions purport to be petitions under Article 201 of the Interim Constitution which embodies the provisions conferring what is generally but somewhat loosely described as the writ jurisdiction of the High Courts. The Article is couched in language identical, with minor and immaterial exceptions, with that of Article 98 of the 1962-Constitution which is its immediate statutory predecessor and it may, therefore, properly be said that the law as embodied in this Article has been in force ever since the promulgation of the 1962-Constitn--petition up to now. It will be noticed that the Article does not use the word "habeas corpus" or refer to any of the well known high prerogative writs, and, indeed, the Article was intended to replace earlier constitutional enactments where, by express provision, the power of issuing such writs had been conferred. Except for the jurisdiction limited territorially and otherwise of the Chartered High Courts. The power of granting writs was conferred upon the High Courts for the first time by section 223-A of the Government of India Act, 1935; this section, however, for reasons which need hardly be detailed in this order was held to be invalid but a similar power was incorporated by Article 170 in the 1956-Constitution. Article 170 did indeed use the words, among others, "writ" and "habeas corpus". Even in this Article, however, one might note that it was not actually the power of issuing the writs of habeas corpus, but writs in the nature of habeas corpus that was conferred. The precise language of Article 170 was as follows: "170. Notwithstanding anything in Article 22, each High Courts shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part II and for any other purposes."
Despite the purported abrogation of the Constitution in October 1958, the country continued to be governed as nearly as may be in accordance with that Constitution until the promulgation of the 1962-Constitution by reasons of the Laws (Continuance in Force) Order. 1958; paragraph 27, after providing so much, expressly stated that the Supreme Court and the High Courts should have the power to issue the writs of habeas corpus and others. The words "in the nature of" appearing in Article 170 of the 1956-Constitution were omitted. Whether the omission was deliberate or otherwise it is not necessary to examine just now; suffice it to say that until the promulgation of 1962-- Constitution the High Courts had the power of granting the writ of habeas corpus or at least of granting a writ in the nature of habeas corpus. The deliberate departure in language in Article 98 of the 1962-Constitution, to which, as I have said, the Interim Constitution adheres, at least suffices to make it clear that what is now being exercised by the High Courts is a power stated in express language and not one to be discovered from the law of England, common or statutory. If this were all, these applications would be rejected on the short ground that the High Courts no longer have the power to issue writs of habeas corpus and, therefore, none of the powers which are ancillary to those writs.
3. Learned counsel contended, however, that the power of granting writs of habeas corpus is statutorily conferred upon the High Court by a different provision of law, namely section 491 of the Criminal Procedure Code. We do not think it would be a satisfactory way of disposing of this argument merely to say that the present applications do not purport to be under section 491 because that power is in any case available to this Court and, if it was a mere question of technicality we should certainly permit counsel even on an oral motion, to amend the petitions so as to make them petitions under section 491, Cr. P. C. It is necessary, therefore, to examine whether the contention that section 491 does confer the power of granting the writ of habeas corpus, or at any rate the power of granting bail pending the disposal of an application under that section, is correct.
4. It was argued for this purpose that, inherent in the power of the Court of passing a final order in any given proceedings, is the power by way of an interim order to pass a similar order to subsist till the disposal of the main petition. Since subsection 1(b) of section 491 expressly authorizes the High Court to direct that a person illegally or improperly detained fn custody be set at liberty, it was argued that the Court, must of necessity, have the power, pending such an order to direct that the person concerned be released on bail and, in added support of the argument, reliance was also placed upon rule 9 of Chapter IV-F of the High Court Rules, which have been framed under section 491 of the Criminal Procedure Code. In order to appreciate the argument it would be of advantage to reproduce both section 491 and the rule in question :-
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within such limits be set a liberty;
(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into In such Court;
(d) that a prisoner detained as aforesaid be brought before a court-martial or any Commissioners for trial or to be examined touching any matter pending before such court-martial or Commissioners respectively;
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.
(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation, 1818 . . . . . Or Bombay Regulation XXV of 1827, or the State Prisoners Act, 1850, or the State Prisoners Act, 1858, or the Security of Pakistan Act, 1952.
Rule 9 of Chapter IV-F.-Upon the return and the produc--petition of the party on whose behalf the rule was issued, the custody of the prisoner shall be under the control and direction of the Court until the disposal of the rule. Pending the hearing, the Court may admit the prisoner to bail or remand him to the prison where he is in custody."
5. It is difficult to see how section 491 may well be construed as granting the power of issuing writs although the power which it grants is certainly, in many respects similar to the power that may be exercised by the issue of such a writ. If it was the A intention of the Legislature to confer upon the High Court the actual power of granting a writ of habeas corpus nothing could have been easier than for the Legislature to have said so. Instead, the Legislature has in some detail specified the exact powers that the High Court may exercise; so detailed a statement of the powers could hardly have been necessary if it was intended to confer all the powers that go with the writ of habeas corpus. As against that it is clear that certain powers which a Court granting writ of habeas corpus undoubtedly possesses, as is evident from the passage from Halsbury that has been quoted above are not conferred, and, therefore, we think, by necessary implication excluded. Nor do we consider valid the argument, some--what faintly advanced, that the reason for not expressly conferring the power of issuing a writ of habeas corpus was that the Legis--lature thought it undesirable to use an expression which could not be understood except by reference to English law. Chapter XXXVII of the Code of Criminal Procedure in which section 491 is the first and only section, is entitled "Directions of the nature of a habeas corpus". The Code of Criminal Procedure was enacted in the year 1898 and, by that time, the High Courts had long been established in India, which could in, however limited a territory, enforce the writ of habeas corpus. Indian lawyers could hardly, therefore, be presumed to by so ignorant of the expression 'habeas corpus' that it was necessary, only on that account to avoid the use of the phrase. In the very same section the Legislature did use In clause (f) of subsection (1) the expression "Cepi Corpus" which also is understandable only by reference to English law and was, as much as the writ of habeas corpus itself, available only in a limited area. Finally the very fact that the chapter is headed, not "habeas corpus" but "directions of the nature of habeas corpus" we think it makes it entirely clear that section 491 was intended to confer a power very similar to that exercisable by a writ of habeas corpus but not to attach to that power necessarily all the ancillary powers normally attaching to that writ nor necessarily the procedure which governs the issue of such writs. We have, therefore, no hesitation in holding that section 491 confers statutory powers and not generally the power of issuing a writ of habeas corpus and any power of passing interim orders would have to be gathered, if gathered at all, from the language of section 491 and not from any preconceiv--ed notion of powers which are to be found as being implied in or ancillary to the power of issuing a writ of habeas corpus,
6. Although we have come to this conclusion as to the meaning of section 491 upon the language of the section itself without recourse to authority the conclusion is in fact supported by case-law.
For Instance in the case of Kishori Lal v. The Emperor (I L R 1945 Lah. 573) it was argued that successive applications could be maintained under section 491 to different Judges of the same High Court but the argument was rejected. The same argument was also rejected by a special Bench of the Bombay High Court in Malhari Ramuji v. Emperor (AIR 1948 Bom, 326) which follows the earlier Lahore case. Clearly, if all the incidents of the writ of habeas corpus are attracted by reason of section 491 then the argument that was rejected in these two cases was well founded.
7. The argument of rule 9 of Chapter IV of the High Court Rules is, we think, entirely without substance and can be dealt with shortly. The Rule has been made in purported exercise of the powers granted under subsection (2) of section 491 to regulate the procedure In cases under this section and cannot confer higher power than exists in the section itself. If, therefore, B the power can be implied from the language of section 491 recourse need not be had to the rule; on the other hand if section 491 does not suffice to imply such a power the rule itself would be ultra vires and of no avail to learned counsel, who indeed conceded as much.
8. The larger argument that inherent in the power of granting a final order Is the power of granting a similar interim power pending disposal of the proceedings we have no hesitation in accepting and indeed will have need to revert to this argument In another context later on. It is, however, we think, more correct to say that such a power is to be implied from the main power rather than that it is inherent in the main power. Where powers are conferred by statute it is, we think, impossible to say that any power, not expressly conferred, is inherent in the given power unless it is in fact a part of that power itself or absolutely necessary to the exercise of the main power. The rule that the power is implied is, however, a somewhat different thing. For to say that it is implied is to mean that the statute would be construed to include such a power unless it is expressly refused or by necessary implication excluded. The real question, therefore, is whether section 491 does so exclude, since it does not expressly refuse its section 491 (1) in as many as five clauses details the powers conferred upon the High Court, including the power to direct that a prisoner within the appellate criminal jurisdiction of the High Court be removed from one custody to another for the purposes of a trial. In the face of such detailed provisions we find it difficult to say that the power of granting ball can be implied from the general power of directing that the person improperly detained be set at liberty. Undoubtedly the power claimed is not a necessary power In the sense that the Court will find it impossible or even difficult to exercise the final power unless it was also authorized to exercise the interim power. We, therefore, have come to the conclusion that section 491 does not confer any power, by implication, to grant bail to the detenu pending disposal of his application under section 491. We have not been shown nor have we our--selves been able to find any reported case in which the question has been decided or even canvassed. In fairness, however, we must say that one of us at least recollects some cases in which such an order has been passed but without a consideration of the question whether there is power to do so. Reliance on these cases even if we could find it would, therefore, be useless.
9. Mr. Khalid Ishaq next argued that the power is to be found in any case either in section 496 or section 498, Cc. P. C. We have fund it impossible to accept this argument on the fundamental ground that the whole of the Criminal Procedure Code applies generally only to the investigation, trial and procedure relating to offences including such matters as appeal, revisions and so forth.
Section 5 of the Criminal Procedure Code is in these terms: --- "5 (1). All offences, under Pakistan Penal Code shall be investigated, inquire into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but 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 offences."
Subsection (2) of section 1 of the Criminal Procedure Code is again worded in the following language: "Subsection (2) of section l.--It extends to the whole of Pakistan but, in the absence of any specific provision to the contrary, nothing herein contained shall affect, any special or local law 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."
10. It would seem to us, therefore, that the Criminal Pro--cedure Code applies, firstly to the investigation and trial of all offences under the Penal Code, secondly to the investigation and trial of offences under any other law and finally, to matters for which it expressly provides even though they may not be covered F by the first two classifications. Expressly, however, It is made subject to any special or local law then 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. Sec--tions 496 to 498 appear in Chapter XXXIX of the Code and there is nothing whatever in that chapter to indicate that it has any application except during the investigation or trial of offences. We, cannot, therefore, agree with Mr. Khalid Ishaq that because section 496 starts with the expression : "When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a Police Station, or appears or is brought before a Court", it applies in the present cases because on our orders the detenus are now before the Court. Nor can we, upon the basis of the same reasoning, agree that because section 498 gives powers to the High Court or to the Court of Session "in any case" it applies to all persons irrespective of the fact whether they are accused persons or not, convicted persons or not, so long as they are persons under some form of restraint. As we shall see there is considerable amount of authority against Mr. Khalid Ishaq's contention including authority which is binding on us, but, even treating the argument which was advanced before us, if led to its logical conclusion, would yield some very startling result. Section 496, for example, confers no discretion on a Court nor is it confined to powers given to the High Court. It empowers any Court and even a Police Officer to release a person on bail indeed it requires that such an officer or Court to release him. Tile result would be, therefore, that, not merely this Court but even a Court subordinate to this Court, not only may but shall release a datenu since he is not accused of a non-bailable offence. Again, if section 498 is to be Inter--preted as widely as it is now contended before us, not only this Court but also the Court of Session is authorised to grant bail in any case, i.e. Even to a person who is not accused of any offence. The whole purpose and concept of bail is the release of s person upon some security, pending the disposal of some proceedings and the amazing result of accepting the arguments now advanced be--fore us would be that these detenus must now be released without reference to any proceedings and, since there are no proceedings as such pending against them before any Court or other tribunal, this would mean that they must be released finally. We cannot but think that this would be entirely to stultify not merely the purpose of the orders of detention but also the purpose of sec--petition 491 or that part of Article 201 of the Interim Constitution which authorises this Court to examine the legality of the custody of a person in detention. Such an argument based upon the language of a provision in a Code, not itself intended to apply to these proceedings generally, we must totally reject.
11. In a number of cases and since a very long time it has been held that these provisions of the Criminal Procedure Code do not apply in the case of persons sent up before special Tribunals specially not for trial for specified offences but in order to adjudi--cate whether orders of a certain kind, particularly preventive could or should properly be passed against them. We will refer first to a case decided as early as 1911 by the Sind Judicial Com--missioner's Court, namely Inspector v.
Ghulam Kadir (5 S L R 105) in which E. M. Pratt, J. C. Stated at page 106 of the Report as follows :- "The terms of section 498 are no doubt very wide but they are controlled by section 1(2) of the Cede.
Under that section in the absence of a specific provision to the contrary nothing in the Code shall "affect any special or local law now 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.
The Sind Frontier Regulation is a special and local law con--ferring special jurisdiction on the District Magistrate and laying down a special form of procedure.
The provisions of the Code of Criminal Procedure cannot therefore be invoked in order to control the proceedings of the District Magistrate."
We have referred to this early case although there are much more modern cases and cases of higher authority for special reasons. It was at one time thought that section 498 of the Criminal Procedure Code confers upon the High Court very wide power neither restricted by nor in any manner to be construed by reference to section 497 of the Criminal Procedure Code. Since then the Supreme Court has settled this question authoritatively and this is not the plate to enter upon any discussion of that question. What we are emphasizing is that even when the earlier view was held it was not found possible to exercise a power under section 498 in a case of this kind.
12. Coming to more modern cases it was decided in Allauddin v. State (168 P Cr. L J 92) that a person complained of under section 6 of the Karachi Control of Disorderly Persons Act, 1952 was not an accused person and could not, therefore, lay claim to the provisions of section 496, 497 or 498 Cr. P. C. For the pur--poses of asking for bail.
13. Again in the case of Gahena v. The State (PLD 1968 Lah. 1266) a Division Bench held similarly in the case of persons against whom proceed--ings had been filed under the West Pakistan Control of Goondas Ordinance, 1959. In a passage which is worth quoting Mr. Justice Sardar Mohammad Iqbal held that the words "in any case" used in section 498 are not applicable ; at page 1270 the learned Judge observed: --- "The words "in any case" used in section 498, Cr. P. C. Are applicable to a case to which the Code of Criminal Procedure is applicable, and obviously if a case is beyond the scope and purview of the Code, to that section 498 would not be attracted. In subsection (2) of section 1 of the Code, it is provided that the Code extends to all the Provinces of Pakistan; but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now 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". The words in the absence of any specific provision to the contrary' in section 1 (2) mean and contemplate a provision specific in affecting the special or local law. It means that there may be specific provision in the special or local law that the Cr. P.
Code will apply to the proceedings under the Act. If it is not so provided, Cr. P. Code will not apply.
Unless it can be said that there is specific provision in, the Code itself saying that it shall apply to the special or local law. Thus, in order that Cr. P. Code should be made applicable to the proceedings of a special/local law, it is necessary that there should be either a provision in that law specifically saying so, or that there should be specific mention in the Cr. P. Code that it s all apply to the proceedings of such a law." "
After quoting Section 5 f the Cr. P. Code the learned Judge went on to observe "Section 1(2) and section 5(2) are to be read together. According to section 1(2), the Code will not apply to a special or local law unless there is specific provision in this behalf. It is contained in section 5(2) that to all offences under special or local laws the procedure for investigation, inquiry or trial, laid down in the Code will apply. If, however, the special or local law creates offences, and also provides procedure dealing with the offence, the procedure so provided has to be observed and not the procedure in the Criminal Procedure Code. The position which emerges is (a) that all the offences under the Penal Code are to be investigated, inquired into, and tried in accordance with the procedure in the Criminal Procedure Code; (b) that an offence under a special or local law is likewise to be investigated, inquired into and tried in accordance with the procedure given in Cr.
P. Code unless the special or local law provides for different procedure; and (c) that in respect to all other matters, covered by special or local law, the Cr. P. Code is not applicable, unless there is specific provision to that effect. The Ordinance does not directly create any offence, and being special and a local law the Code of Criminal Procedure will not be applicable to the proceedings under it, unless it is shown that there is specific provision in the Ordinance or in the Code of Criminal Procedure providing for the application of procedure given in the Code."
With this reasoning we find ourselves in entire agreement.
14. Really the basic position was authoritatively stated by the Privy Council in the case of Lala Jairam Das and others v. Emperor (AIR 1945 P C 94) where the question was whether a High Court in India had power to grant bail to a person who had been convicted and to whom the Privy Council had given special leave to appeal. Their Lordships of the Privy Council held that sections 496 to 498, deal only with a case of accused persons. Dealing with section 498 of the Code their Lordships observed at page 97: "There remains for consideration the question whether the alleged existence of a power in a High Court to grant bail in the stated circumstances can be established on other grounds. If it exists, it must be either because it was conferred on the High Courts by the Code, or because ft is one of those inherent powers which are referred to in section 561 (a) of the Code. So far as the provisions of the Code are concerned, their Lordships can discover nothing therein to justify the view that any such power is thereby conferred on a High Court. The question of a bail is dealt with in Part 9 or the Code ("Supplementary provisions) under Chap. 39 which is entitled "of Bail". The only granting of bail which is referred to in that chapter (which consists of sections 496 to 502 inclusive) is the granting of bail to accused persons. There is no reference therein to the granting of bail to persons who have been tried and convicted. It is true that in the Indian decisions, section 498 seems to have been treated as though ft included cases in which persons already convicted were concerned; but any such view seems to their Lordships to be a misapprehension based upon a mistaken reading of a few words which occur in that section. The section runs thus: "498. The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive: and the High Court or the Court of Session may, in any cask whether there be an appeal on conviction or not, direct that any person be admitted to bail or that the bail required by a police officer or Magistrate be reduced.
Two things must be observed in relation to this section. The only bonds executed under this chapter are executed by persons who are accused (not convicted) persons; and the records "whether there be an appeal on conviction or not" merely qualify or relate to the words "in any case" and only mean that all accused persons are within the section whether their case is appeal-able on conviction or not. In truth the scheme of Chap. 39 is that sections 496 and 497 provide for the granting of bail to accused persons before trial, and the other sections of the chapter deal with matters ancillary or subsidiary to that provision."
15. Some suggestion indeed was made at the bar that the decisions of the Privy Council are no longer binding on us and reliance was placed for that purpose upon the case of Muhammad Ayoob v. Muhammad Yaqoob and another (PLD 1966 SC 1003It is true that the head note at page 1007 does say that the decisions of the Privy Council are no longer binding on the Courts in Pakistan although entitled to the highest respect but we do not think that the head note correctly summarises what their Lordships of the Supreme Court actually stated. At page 1012 Mr. Justice S. A.
Rahman observed: "It is true that this Court is no longer bound to accept the opinion of the Privy Council if good reason is shown for departing from it. The Privy Council, however, was the highest Court of Appeal, in regard to cases arising in this country, till some time after the Partition and unless strong grounds are made out for rejection of a construction of a statute, hitherto accepted on the authority of the Privy Council, this Court would be loath to adopt a new interpreta--petition of the relevant enactment. Are there then any overriding considerations which would justify a different construction of section 498 from that adopted by the Privy Council?"
Again at pages 1018 and 1020 tile present Chief Justice of Pakistan observed : "The correctness of this view is now sought to be challenged and it is contended that since we are no longer bound by the decisions of the Judicial Committee we should not assume that the Judicial Committee was always correct. It is no doubt true that the decisions of the Judicial Committee are no longer binding upon us but they are nevertheless entitled even now to the highest respect and should not be lightly departed from particularly, where the decision relates to law which is still in force in the same form. Unless there be cogent and compelling reasons it is, in my view, only proper that the decisions of the Judicial Committee should be respected as the decisions of the highest Court of the time, particularly, where that view has also received recognition by the highest Court in the Country: It will be seen that while Mr. Justice S. A. Rahman expressly referred to "this Court", meaning the Supreme Court of Pakistan and not any other Court, his Lordship the present Chief Justice did use the word "we". We have no doubt in our mind, if we may say so with respect, that by the word "we" his Lordship was referring to the Supreme Court and not the Courts in Pakistan generally. We are of the view that the decisions of the Privy Council given at a time when that tribunal had final appellate jurisdiction over the Courts in our country continue to be binding on us until their Lordships of the Supreme Court decide to the contrary upon any specific, point. Even if this were not so their decisions would in any case be entitled to the highest respect and only very strong reasons could possibly persuade even the Supreme Court to dissent from the Privy Council. Having already stated our own view of what the law is, we could hardly say that there are any such reasons for us to take a view different from the Privy Council even if it were open to us to do so.
16. We have, therefore, no doubt in our mind that there can be no question of deriving the power of granting bail from any section of the Code of Criminal Procedure including sections 491 and 496 to 498.
17. This does not, however, conclude the matter. We have, in a different context earlier, enunciated the principle that where a Court has power to pass an order finally it will generally have the power to do so by way of interim measure unless such a power is either expressly or by necessary implication excluded. Since there is power eventually under Article 201. Of the Interim Constitution to set the detenus at liberty if we find that their confinement is unlawful, we think that we would have power to grant them an interim order to the same effect upon such conditions as may be thought proper in a given case. The learned Advocate-General, however, invites our attention to sub-Article (4) of Article 201 which requires that in certain circumstances the Court would not make an interim order where the application before it is for an order under clauses (a) and (c) of sub- Article (2) of the Article. He argues that this means that under these two clauses an interim order may be made but since clause (b) is not mentioned no interim order can be made in the course of an application made under clause (b). Now it is clause (b) which authorises the High Court to enquire into the legality of the detention of a person held in custody. We regret we find it impossible to agree with the learned Advocate-General. Sub-Article (4) in form and in substance confers no power whatever upon the High Court; on the contrary it provides for a restraint on the power, i.e. It re4uires notice to be given to a prescribed authority before an interim order can be made. No part of the Article expressly gives the power to pass an interim order; sub-Article (4) on the contrary assumes that such a power exists and imposes a certain degree of restraint on that power in a certain class of cases. As we have already stated the power of granting an interim order is Implied unless expressly excluded; so far as Article 201 is concerned such power is not only not excluded by implication assumed to exist. If authority was needed for this proposition it may clearly be found in the case of Ebadur Rahman v. The Collector of Customs (PLD 1966 SC 762), the last paragraph of the judgment which is in the following language: "In a proceeding of this extraordinary nature where the High Court exercises power to stay operation of any impugned order or notification, it must exercise that power with great care so that a person may not manage to obtain a direct benefit from the case in contravention of law."
Clearly their Lordships are holding in favour of the existence of such a power though they say it ought to be used with great care.
18. The learned Advocate-General then contended that in any case the power to pass an interim order cannot be higher than the power to pass a final order. Or in other words the Court cannot do more by way of an interim order than it could have done by a final order. With this proposition we have no hesitation whatever in agreeing. The learned Advocate-General then proceeded to say that, in regard to detention case, all that this Court can do is to satisfy itself that a person in custody is not being so held without a lawful authority or in an unlawful manner, and that we cannot pass any order directing that he be set at liberty. He, therefore, contended that we cannot possibly, at this stage of the case, pass an order granting bail as an order of release which would be in excess of out power even at the end of the case, since we could not then direct him to be set at liberty. He contrasted that language used in sub-clause (i) of clause (b) with that use in sub- clauses (i) and (ii) of clause (a) and in clause (c). While under clause (a), sub-clause (i) and under clause (c) the High Court is empowered to make an order giving directions, in sub-clause (ii) of clause (a) the High Court can only pass an order of declaration. In sub-clause (l) of clause (b), with which we are at present concerned, the High Court is not even authorised to make an order of declaration. The learned Advocate-General cited in support the case reported as Shahadat Khan and another v. Home Secretary to the Government of West Pakistan and others (PLD 1969 SC 158), in which his Lordship the Chief Justice at page 166 observed as follows: "Having set it aside, however, it has now to be considered as to what further order should be made.
Under Article 98 of the Constitution, it seems to me, that clause (2)(a)(11) thereof does not contemplate the making of any consequential order. It merely gives to the High Court the power to declare an act done or decision taken by a functionary of the Government in the Province or a local authority to have been done or taken without lawful authority and as of no legal effect. The consequences of this declaration will follow of their own force. In the present case, the consequence of it will be that there will be no valid order of reference to the Tribunal. It is unnecessary for us, therefore, to say anything else. If the Commissioner is still advised that he has a right even now to make a reference and that this is a proper case to be referred, he can do so but it is to be pointed out that this will have to be upon a fresh proceeding. On the other hand if he does not make any order of reference, then the case, as pointed out by the High Court, will proceed before the ordinary criminal Court."
The learned Advocate-General appeared to be of the view that it was only to be expected that, after the High Court had given a declaration, the Government or the authority in question would not proceed to enforce whatever order had been declared to be without lawful authority or of no legal effect. We think the learned Advocate-General, in making this contention, was not giving the proper meaning to the last six words of this passage which are: "will follow of their own force". (The underlining* is ours). The meaning of these words, if it be permissible to us respectfully so to comment, we think, is that the action having been declared as being without lawful authority would be nullity in law and therefore in the eye of the law would not exist. Consequently any question of enforcement of that order simply would not arise. The order not existing no further action could be based upon it. The true meanings of the Article is not, we think, what the Advocate-General stated, namely, that it is to be expected that the order of the Court would be paid due respect, but that the effect of the declaration would be to render null and void what was supposed properly and lawfully to have been done.
19. If, indeed, the Article was to be interpreted so literally then undoubtedly under sub-clause (i) of clause (b) of Article 201(2) the High Court cannot even make a declaration but must merely satisfy itself. Now the question arises what the High Court is expected to do after it has satisfied itself.
Apart from certain special constitutional or statutory advisory jurisdictions, a Court does not render advice; it gives decisions or orders. We are unable to agree with the learned Advocate---General, therefore, that, having satisfied ourselves, we should record our views or report them to the Government in the expectation that, as a consequence, tire detenu would be released if we have not teen able to satisfy ourselves that he was lawfully held. We have no interest in this matter except as a Court and if, therefore, we are powerless to pass any order it would be pointless for us to be satisfied. If indeed that was the law we would refrain from examining any such case any further, because we do not Propose to indulge in the purely academic exercise of satisfying our own mind as to whether or not the detenu is properly held. We think the purpose of the Article and the only true meaning which we can give to it is that as a consequence of the satisfaction that we have formed or failed to form we Would give effect thereto by an order which either directs that the detenu will be set at liberty or states that the custody is lawful. During the ten years or so that this Article or its predecessor has been in force it has not, so far as we know, ever been contended that the Court does not have any power to direct the release of a detenu found unlawfully detained. On the contrary it is admitted, even by the Advocate-General, that in all such cases such order have been made not only by the High Court but on appeal by the Supreme Court also. We do not, of course, say that this mere usage is conclusive of the matter but it is certainly strong indication of the proper construction to be put upon the Article which, in any case we think, will, without this construction, be meaningless. We would not lightly attribute to the Legislature the intention of making an absolutely useless provision; much less would we do so when construing the provisions of a Constitution. We, therefore, hold that we have power to order, at the end of the proceedings, that the detenu be set at liberty if on the material before us we are satisfied that such an order ought to be made.
20. Finally the Advocate-General made his argument in an attractively ingenious fashion, He claimed that, since the power of the Court to set a person liberty was based upon its satisfaction that the custody of the detenu was either unlawful or improper, we have no power at this stage to make an interim order unless we could reach such a conclusion and until we have heard the matter fully, we could not or at least should not ranch such a conclusion. If this argument was directed to the proper discretion to be exercised in the grant or refusal of an interim order we should be inclined to agree and to this aspect of the matter we shall advert presently. Regarded, however, as an argument in bar of the power at this stage, as distinct from the propriety of making an order, we are unable to agree with the learned Advocate-General. The argument if correct, would mean that in no case may an interim order be passed until the Court is finally satisfied that the petition must succeed. But on such a conclusion the petition ought to be allowed and a final order passed; this is virtually to deny in practice what in theory is available, namely the power of passing an interim order in any matter and not merely those which are concerned with the custody or detention of a person. The grant of interim stays in applications under Article 201 is a matter of every day occurrence and while, of course, such an stay ought to be granted with care it is obvious that the power to grant it is available,
21. We have, therefore, come to the conclusion that it is open to us to grant an interim order suspending the operation of the order of detention upon such conditions as may seem reasonable including the furnishing of a surety and/or security. We realise, of course that it is a matter of practical consequence, specially from the point of view of the detenu, this would mean much the same thing as the grant of bail. Certainly the detenu would have been released pending the disposal of the petitions under Article 201. Nevertheless; the word "bail" is not used in. Article 201 and is used in certain provisions of the Criminal-' Procedure Code; the expression has certain technical connotations and we only decide that we have the power to make an interim order and not a power to grant bail.
22. Having taken this view of our powers we must next-- examine the question as to when it would be proper to exercise such a power. We think, it necessary for that purpose-particularly, to contrast the power to grant bail pending trial or even appeal after conviction with the power of suspending the operation of an order of detention. While the sentence which could be passed at the end of a trial of an accused person or has been passed in the case of a convicted person is limited in terms of time to a particular quantum, i.e. a particular number of months or years an order of detention is limited in terms of time not by quantum but by prescribing a particular point of time from which it is to commence and at which it is to end. The purpose of a conviction and sentence is to penalise while the purpose of an order of detention is prevention. The result is that if a person who is granted bail is ultimately convicted or fails in his appeal against a conviction he will be remanded to serve out the period of his sentence. As against this, however, when an order of detention is suspended but is ultimately sustained the detenu must, nevertheless, continue to remain at liberty if the period of detention originally ordered has expired or be then detained for such pan of that period as might remain. While, therefore, in the case of a conviction and sentence no irreparable harm will have been done by the grant of bail, the entire purpose of an order of detention may well be frustrated by an order suspending the order of detention. The object of an order of"' detention is to restrict severely the freedom of the detenu to move about from place to place and to any place he wishes and also to prevent him from access to the rest of mankind generally we are, of course, assuming, for our present purpose, a proper and lawful order. Entirely different consideration must, therefore, necessarily apply to the grant of bail and to the grant of an-- interim order suspending an order of detention. We think that it must be only in the arrest cases that a Court would be justified in suspending the order of detention. While we think it neither desirable nor possible to enumerate what circumstances in a given case would justify this rare exercise of power, one kind of case, we think stands out. In that kind of case where, clearly and on the face of it, the detention is unlawful and the authority purporting to detain the detenu cannot justify it, we think the order should be suspended. Such a case may anise, for example, where a person is held without a warrant altogether. It may also arise where them is a warrant which purports to be under a proper law but is nevertheless, clearly without authority as having been passed by a person who does not have the requisite authority. Again, it might arise where even though all these conditions have been satisfied the ground upon which it is made clearly are not relevant to the purposes of the statute under which It purports to be made. We are, as we have said already, not attempting an exhaustive list by any means but merely point out two or three different kinds of cases which occur to us at the present time as justifying an order of suspension.
23. On the merits of each of the cases before us we have been entirely unable to find that such is the case. All the orders have been attacked on various grounds which may possibly succeed or which may fail. We deliberately refrain from commenting on these attacks at this stage so as not to prejudice the determination of this case finally ; suffice it to say that we have not been able to find in any of these cases, one which comes under any of the different kinds which we have mentioned above or where, for other reasons, we could have come to the conclusion that this was one of those exceptional cases where an order of suspension ought to be made. In one case indeed, i.e. Petition No. 367 of 1972, learned counsel for the applicant Mr. Noor Mohammad argued that his client was infirm and old. His reference clearly was to the provisos in section 497 of the Cr. P. C. And, indeed, when we asked him, he specifically said that he was basing his case upon that section. As we have earlier stated, however, we are of the opinion that sections 496, 497 and 498 are not at all attracted to these cases. While old age, infirmity and sex may well play a part In the grant of bail, we are of the opinion that they cannot be good grounds for ordering suspension of an order of detention or, at least, ate not in this case.
24. After we heard arguments in this case on the 1 September 1972 we dictated a short order in which we announced that, although we had come to the conclusion that we had the jurisdiction to grant the order prayed for, we were unable to accept the contentions on merits that any of those cases we should exercise this power. We stated that we would record our reasons separately and the above i9 a statement of the reasons which induced us to give the judgment which we then pronounced.