1. ' SAJJAD ALI SHAH, J.--This application under section 561-A Cr.P.C. Is filed in the High Court by Nifasat Ali Khan, who has stood surety for accused Syed Jamal Shahid in Criminal Case No,13/1987, which is pending before Special Court of Sind (Banks) at Karachi. The amount of bail bond is Rs,10,00,000. On account of absence of accused Jamal Shahid, trial Court has passed order dated 21-7-1988 forfeiting surety bond and further requiring surety to pay that amount of the bond as penalty within 14 days. Being aggrieved, applicant has called in question that order dated 21-7- 1988 as well as proceedings under section 514 Cr.P.C. Conducted by the trial Court to be illegal. It would be pertinent to mention here that this Criminal Misc. Application was admitted in the High Court vide order dated 20-9-1988 to consider the question whether in respect of an order of forfeiture of surety bond under section 514 Cr.P.C. Passed by Special Court of Sind (Banks) at Karachi appeal is competent under section 515 Cr.P. C. To the District Magistrate as is contemplated in the Code or application under section 561-A Cr.P.C. Is competent in the High Court for the reason that Presiding Officer of the Special Court of Sind (Banks), Karachi is a retired Judge of the High Court, as is claimed by learned counsel for the applicant. For the sake of convenience the above-named Court will hereinafter be referred as the trial Court.
2. ' Briefly stated the relevant facts are that in the trial Court accused Jamal Shahid was released on bail and applicant stood surety for him and subsequently when accused named above remained absent, notice was issued under section 514 Cr.P.C. To the applicant. Applicant engaged a counsel who found out from the record of the trial Court that accused Jamal Shahid did not appear on 24- 2-1988 and a Medical Certificate was produced with which the trial Court was not satisfied and further proceedings were taken in hand. Case diary of that day shows that medical certificate issued by Dr. Sakhawat Khan of Lahore was produced in proof of the fact that accused Jamal Shahid had met with an accident in Lahore and was therefore unable to attend the trial Court at Karachi. Perusal of the medical certificate indicated that accused was suffering from Peptic Ulcer and was advised rest. In such circumstances trial Court was not satisfied with the genuineness of medical certificate and summoned the Doctor in the Court. On 8-5-1988 advocate of accused Jamal Shahid informed the trial Court that accused Jamal Shahid has expired. He was instructed to say so by father of accused Jamal Shahid, At his request advocate was allowed time for production of death certificate. On 15-5-1988 Syed Shahid Hussain father of accused Jamal Shahid filed affidavit in the trial Court to the effect that his son had died in Punjab on 3-5-1988. Case diary of 16-6-1988 of the trial Court shows that report was received from S.I. Sifat Ali Agha, who made enquiries at Lahore in Hafizabad in connection with accident of accused Jamal Shahid and he reported that no person by name of Syed Jamal Shahid son of Syed Shahid Hussain had expired in road accident during the months of April and May, 1988 in Hafizabad or in Gujranwala district.
3. About medical certificate dated 23-4-1988, he reported that certificate was genuine but the person named in was neither admitted in Services Hospital nor treated as outdoor patient. Trial Court therefore concluded that accused Jamal Shahid had not expired as claimed and is alive but has absconded. Bail bond was forfeited and notice was issued to the surety to pay up the amount of Rs,10,00,000 mentioned therein. Non-Bailable Warrants were repeated against accused and directions were issued for taking steps under sections 87 and 88 Cr.P.C. F.I.A. Was directed to find out whether accused Jamal Shahid had any property in Sind or anywhere else in Pakistan.
4. ' Case diary of 7-7-1988 of the trial Court shows that documents produced by surety Nifasat All Khan attorney of Mrs. Qamar Rasool Begum were found to be forged as property claimed by him turned out to be abandoned property included in the list issued pursuant to section 11 of the Abandoned Properties (Management) Act, 1977. In the meantime one Muhammad Iqbal submitted photostat copy of death certificate and hospital certificate of Jamal Shahid but the trial Court was not satisfied and directed F.I.A. To make further enquiries in respect of those certificates. Nazir of the High Court was directed to file complaint in the Court of competent jurisdiction against surety Nifasat Ali Khan for offences under sections 192 and 193 P..P.C. On that day after order mentioned above was passed by the trial Court surety Nifasat Ali Khan appeared in the Court alongwith his counsel Mr.Sultan Ahmed Khan and requested the Court that some time should be allowed to him to search the accused. Time was allowed to him to produce the accused and also to clarify his position whether property shown in his documents was owned by him or was abandoned property in the custody of Custodian of Abandoned Properties. On 10-7-1988 surety appeared before the trial Court and requested that non-bailable warrants of accused should be given to him so that he should be able to apprehend the accused. Meanwhile surety got an advertisement published in Daily Jang of 23-7-1988 with photograph of accused offering reward of Rs,20,000 to the person, who could get accused arrested.
5. ' On 21-7-1988 surety appeared in the trial Court alongwith his counsel and requested for further time on the ground that accused is hiding somewhere in Buffer Zone. This request was declined by the trial Court as sufficient time had already been given to the surety and further since documents produced by surety ware suspect, his bond was forfeited and he was called upon to pay penalty of the amount mentioned in the bond within 14 days. On 2-8-1988 surety filed application under section 561-A Cr.P.C. In the High Court.
6. ' We have heard at length Mr. K.M. Nadeem, Advocate for the applicant and Mr. A.A. Muhammadally, A.A.-G. Sind. First important point to be considered is whether application under section 561-A Cr.P.C. Filed in the High Court is competent and maintainable against order passed by the trial Court under section 514 Cr.P.C. It may be mentioned here that trial Court is set up under special law namely Offences in Respect of Banks (Special Courts) Ordinance, 1984. Orders are passed by the trial Court under section 514 Cr.P.C., which prescribes procedure in connection with forfeiture of surety bond. Procedure prescribed is that if the Court is satisfied, such bond can be forfeited and the Court shall record grounds for such order and may call upon the surety to pay the penalty thereof or to show cause why it should not be paid. If sufficient cause is not shown and penalty is not paid, steps can be taken for recovery by issuing a warrant for attachment and sale of movable property belonging to the surety. Section 515 Cr.P.C. Further provides forum of appeal before District Magistrate. Now it is to be decided that whether under section 515 Cr.P.C. Appeal is maintainable before District Magistrate when it is against order passed under section 514 Cr.P.C. By a retired Judge of the High Court who is Presiding Officer of the trial Court under special law mentioned above.
7. ' Perusal of section 515, Cr.P.C. Very clearly shows that District Magistrate is competent to hear appeal from order under section 514, Cr.P.C., only when such order is passed by any Magistrate other than a District Magistrate. Order under section 514, Cr.P.C. Can be passed by any Court and it could be passed even by Sessions Judge and it is neither necessary nor desirable, nor it is the intention of legislature that regardless of the fact as to which Court has passed the order under section 514, Cr.P.C., the appeal will lie before District Magistrate as is contemplated under section 515, Cr.P.C. Appeal under section 515 Cr.P.C. Is available before District Magistrate only when order under section 514, Cr.P.C. Is passed by a Magistrate subordinate to District Magistrate. In this context reference can be made to section 12 Cr.P.C., which defines subordinate Magistrate to be subject to the control of the Provincial Government through District Magistrate to function as such within local limits so defined in the District for the purpose of exercise of powers under the Code of Criminal Procedure. Section 13(3) Cr.P.C. Provides for delegation of powers by the Provincial Government to the District Magistrate. Section 10, Cr.P.C. Provides for appointment of District Magistrate. Section 16, Cr.P. C. Empowers Provincial Government, or subject to its control, the District Magistrate to make rules consistent with the Code for guidance of Magistrates' Benches in any district in respect of classes of cases to be tried, times and places of sittings, constitution of Benches and mode of settling differences of opinion. Section 17, Cr.P.C. Contemplates that all the Magistrates in the District shall be subordinate to the District Magistrate. Subsection (3) of section 17 further provides that Assistant Sessions Judges shall be subordinate to Sessions Judges. Now if section 515 is read carefully, keeping in view other provisions of Cr.P.C. With regard to set up of Magisterial Courts, it would appear without shadow of doubt that section 515, Cr.P.C. Covers only those appeals to be heard by District Magistrate, which arise from orders passed under section 514, Cr.P.C. By a Magistrate who is administratively subordinate to him. Mere fact that section 5(8) of Offences in Respect of Banks (Special Courts) Ordinance, 1984 requires that in the absence of procedure, trial Court has to follow procedure prescribed for Magistrates, does not mean that trial Court becomes subordinate to District Magistrate.
8. ' In the instant case, trial Court is a Court set up under special law namely Offences in Respect of Banks (Special Courts) Ordinance, 1984. This law is in force in order to provide for speedy trial of certain offences committed in respect of Banks and for matters connected therewith or incidental thereto. Under this law Special Courts are consituted by the Federal Government and the requirement for Presiding Officer of such Court is that only that person is qualified who has been or is qualified for appointment as a Judge of the High Court. Jurisdiction of Special Court is also to be determined by the Federal Government to be specified in the notification which is to be published in the official Gazette. Present Trial Court is Special Court for the whole Province of Sind and is not limited to any one particular District. The Special Court is to try only those offences which are mentioned in the schedule to the law under which the Special Court is set up.
9. ' Section 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 contemplates that appeal from the order cf Special. Court in case of conviction shall lie before High Court to be heard by Division Bench of two Judges. In spite of the fact that appeal is competent before High Court from the decision of the Special Court but as contemplated under section 10 of the above- mentioned Ordinance the powers of the High Court are narrowed down to the hearing of appeal only from conviction, High Court cannot hear appeal from acquittal or Revision application against the acquittal at the instance of complainant. It would be, pertinent at this stage to reproduce section 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984: ' S.10.--(1) A person sentenced by a Special Court 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, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court.
(3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by ,a Special Court."
(4) Careful perusal of section 10 as stated above clearly shows that High Court 'can hear only appeal from judgment of conviction and sentence passed by Special Court with positive restrictions that High Court cannot revise such sentence or transfer the case from one Special Court to another and further High Court is barred from passing any order under section 426, or section 491 or section 498, Cr.P. C. Section 426 Cr.P.C. Relates to suspension of sentence during pendency of appeal with powers to grant bail during appeal proceedings. Section 491, Cr.P.C.
10. Relates to issuance of directions by the High Court in the nature of habeas corpus and section 498, Cr.P. C. Relates to tail before arrest. Apart from positive restrictions specified and imposed in section 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 as stated above, all other powers of the High Court during hearing of appeal are intact including power under section 561-A, Cr.P.C. Which is inherent jurisdiction of the High Court. We say so for the reason that if the legislature had intended to stop the High Court from exercising inherent powers under section 561- A, Cr.P.C., then section 561-A, Cr.P. C. Would have found mention alongwith other sections which are specified in section 10 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 as not to apply barring jurisdiction categorically. Whatever is intended not to apply is stated expressly and whatever is not stated is to be deemed as applicable and not excluded. In this context, reference can be made to the case of Malik Mir Hassan and another v. The State (PLD 1969 Lah. 786 and 800 para 14) in which Full Bench has held that Jurisdiction of superior Courts is not taken away except by express words or necessary implication and that such jurisdiction cannot be excluded unless there is clear language in statute which is said to have that effect.
11. ' Mr. K.M.Nadeem has contended that words "no Court" used in section 10 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 do not include High Court. We do not feel inclined to agree with him on this point for the reason that under special law, Special Court has been set up and appeal has been made competent before High Court and whatever powers were intended by the legislature not to be used by the High Court in connection with appeal have been expressly mentioned and since under that special law only one appeal E is allowed against conviction and sentence and such power of hearing of appeal is specifically and by name conferred upon High Court and not only that but it is also provided that appeal would be heard by two Judges of the High Court, hence in section 10 of the said Ordinance use of words "no Court" would automatically include High Court. Additionally, it can be said that in section 10 of the said Ordinance, sections which are mentioned specifically for the purpose of barring jurisdiction, include section 491, Cr.P.C.
12. Which relates to the exclusive F jurisdiction of High Court for issuance of directions in the nature of habeas corpus. In support of this view, reliance is placed on the case of Ch. Zahur Ilahi v. The State (PLD 1977 SC 273). In this respect no other interpretation is possible and language of section 10 of that Ordinance has very expressly stated the intention of legislature., We may also say that section 561-A, Cr.P.C. Is included in Chapter XLVI and that Chapter is not expressly excluded from application in, the said Ordinance. Since High Court is Court of appeal under the C said Ordinance and inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Is saved and is not expressly barred, hence High Court can exercise this jurisdiction in appropriate cases as and when so required in a manner which is consistent with authority andl powers allowed to the High Court under the said Ordinance.
13. ' In the instant case, since High Court is Court of appeal under the said Ordinance and Presiding Officer of the trial Court is retired Judge of the High Court and appeal against the order passed by him under section 514, Cr.P.C. Cannot be filed in the forum contemplated under section 515, Cr.P.C.
14. Then such appeal is competent before the High Court under its inherent powers specially when such jurisdiction is not expressly barred and no other forum for hearing of appeal from order passed under section 514, Cr.P.C. Is provided.
15. ' So far merits of this case are concerned, we cannot take any exception to the orders passed by the trial Court in connection with proceedings under section 514 Cr.P.C. Because we are of the view that learned Presiding Officer of the trial Court has acted strictly according to law with anxiety in mind to find out the truth and do justice as required under the law. Last order of the trial Court dated 21-7-1988 impugned before us is order whereby explanation of surety/ Applicant is not accepted by the Court and he has been called upon to pay the whole amount of surety by way of penalty within fourteen days. This order is proper in view of peculiar facts of this case as stated above as the documents of surety deposited have been found to be suspect and no convincing proof is produced in support of claim that accused has expired. Applicant claims that he became surety because accused is son of an advocate who is a neighbour. If death of accused had occurred somewhere in Punjab, better and more convincing evidence could have been produced with regard to bringing of dead body from Punjab to Karachi and of persons who participated in funeral.
16. ' It was submitted by Mr. K.M.Nadeem, Advocate for applicant before us that surety could not be blamed for the reason that he had tried his level best to trace the accused and had even published advertisement in Daily Jang with photograph of accused offering reward of Rs,20,000 to any person who could help in the arrest of accused in this context perusal of the documents and orders passed by the trial Court annexed with this application show that on 15-5-1988 father of accused filed his affidavit in the- trial Court making a statement that his son Shahid Jameel had died in Punjab on 3-5-1988. Subsequently case diary of 16-&-1988 shows that statement of father of accused was not believed because Sifat Ali Agha, S.I., went to Lahore to make enquiries, reported that accused had not died as was alleged by his father. After that bail bond was forfeited and surety was called upon to pay the penalty. Subsequently, surety; took time and ultimately on 23-7- 1988 he got advertisement published in the newspaper in which the fact is mentioned that accused has absconded from the Court. This very fact that such advertisement was published in the newspaper by surety clearly indicates that the surety was also convinced that accused had not died but has absconded as held by the trial Court.
17. ' If claim of surety was right that he became surety for no other reason except that accused was son of his neighbour, who is an advocate and this step was taken in sheer good faith to help a neighbour, then why father of accused has not come forward to help the surety and stand by him and produce whatever evidence is available with him to convince the trial Court that his son had expired on the date and in the manner alleged by him.
18. ' It was submitted before us on behalf of surety that in the trial Court when death certificate was produced, the matter should have been brought to an end as death certificate is final in nature and if authenticity or validity of that death certificate is open to be questioned then proper enquiry should have been ordered as contemplated under section 476 Cr.P.C. And surety should be/Mowed to participate in the enquiry. Section 476 Cr.P.C. Prescribes procedure which is to be adopted in cases which are mentioned in section 195 Cr.P.C. Section 195 Cr.P.C. Provides that no Court shall take cognizance in cases of prosecution for contempt of lawful authority of public servants, prosecution for certain offences against public justice and prosecution for certain offences relation to documents given in evidence except on complaint in writing of public servant concerned, or of the concerned Court as the case may be Section 476 further provides that in cases mentioned in section 195 Cr.P.C. The Court can take cognizance in the manner prescribed and pass any sentence on the offender authorised by law for such offence. In the High Court before us surety has come with grievance for the reason that proceedings had been taken against him in the trial Court under section 514 Cr.P.C. Surety has to confine himself to the extent of his own grievance and proceedings taken against him. Under section 514 Cr.P.C. Bond of the surety is forfeited and the trial Court has given reasons for passing such order. Trial Court is satisfied that accused is not dead as claimed but has absconded. Trial Court has also found papers of the surety to be suspect. Time was allowed to the surety to produce accused. Father of accused and surety were unable to satisfy the trial Court with regard to the death of accused. From the facts bf this case and documents produced, it appears that surety is also mixed up with father of accused in the false claim that accused has died. We find no reason whatsoever or justification to reduce the amount of penalty in this case.
19. ' For the facts and reasons stated above, we do not find any justification to interfere with order of the trial Court dated 21-7-1988 impugned before us and we dismiss this application filed under section 561-A Cr.P.C.