1. SAJJAD ALI SHAH, C. J.--Question for consideration before the Full Bench is correct interpretation of section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, (hereinafter to be referred for the sake of brevity as Terrorist Act of 1975) on the point whether appellate Court is competent to hear application for bail and suspension of sentence in spite of specific bar contained in that section excluding passing of any order under section 426, Cr.P.C. In the case law in support of proposition that Division, Bench of High Court is competent to grant bail, latest decision is of Division Bench of this Court in the case of Ubedullah v. The State reported in 1989 P Cr.
2. L J 626. It is held, therein that while hearing appeal, High Court has power to grant relief which is ancillary or incidental to the appeal but such power may not be construed to mean that bail or suspension of sentence is to be granted as a matter of course but a very special exceptional case has to be made out. Reliance is placed on the case of Mirza Jawad Beg v. The State reported in PLD 1975 Karachi 628, in which judgment is authored by Mr. Justice Dorab Patel (as he then was). In the judgment of Jawad Beg's case reliance is placed on two Supreme Court cases namely (1) The Commissioner Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242 and (2) The Sindh Employees' Social Security Institution and another v. Adamji Cotton Mills Limited PLD 1975 SC
32. Need was felt to re-examine this question in detail for the reason that in both Supreme Court rulings mentioned-above, special laws under consideration providing forum of appeal were silent on the point as to whether interim relief could be granted or not, hence it was held that in the absence of express bar or exclusion, such power was available in the said special laws impliedly as power to grant interim relief is incidental and ancillary to the hearing of the appeal. As against that in the instant case in section 7 of the Terrorist Act of 1975 there is express bar to the effect that during hearing of the appeal order under section 426, Cr.P.C. For grant of bail or suspension of sentence cannot be passed.
3. There are eight Criminal Appeals pending in the High Court in which appellants have been convicted for scheduled offences under the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975, and they have filed applications for grant of bail during hearing of appeals as is envisaged under section 426, Cr.P.C. During hearing of these Bail Applications difficulty was felt and necessity had arisen to constitute larger Bench. Apart from Advocates who are appearing in these appeals, on our request three senior and eminent Advocates namely M/s. Khalid M. Ishaque, A.Q.
4. Halepota and Muzaffar Hussain Shah assisted the Court as Amicus Curiae. Since the question before this Bench is of construction of section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, it would be helpful for the sake of familiarisation to go into the back ground of that special law.
5. Generally speaking framing of special law is contingent upon two eventualities. Firstly, when on account of new development, new law is to be framed because on that subject there is no law already in existence. Secondly, on that subject there is law already in existence but the intention of legislature is to expedite the proceedings by simplifying the procedure and for that purpose necessity arises for creating Special Courts. In this context, it seems, Suppression of Terrorist Activities (Special Courts) Act was promulgated in 1975, setting up Special Courts for trial of offences, which are scheduled including offences under Pakistan Penal Code, Explosive Substances Act, 1908 and some offences under the provisions of Arms Ordinance, 1965, Railways Act, 1890, Telegraph Act, 1885, Aircraft Rules, 1937. Defence of Pakistan Rules, and Prevention of Anti-National Activities Act, 1974, specifically so mentioned in the said schedule. Preamble of the Terrorist Act is stated in clear words that the intention of the legislature is to make special provisions for the purpose of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherence of or in connection with such acts. Under section 3 of the said Act, Special Court is constituted by Notification of the Federal Government, to be presided over by a person, who has been or is qualified to be Judge of the High Court or has, for a total period of not less than three years, exercised powers of Sessions Judge or Additional Sessions Judge under the Code. Under section 4, jurisdiction is conferred upon Special Court for trial of scheduled offences.
6. Under section 5, procedure is prescribed for Special Court as to how cognizance of a scheduled offence is to be taken. In this context, three things are worth mentioning. Firstly, that Special Court is not bound to adjourn any trial unless adjournment is unavoidable. Secondly, if there is change in composition of Special Court, it will not be bound to recall or rehear witnesses who have already given evidence and, thirdly, that trial can proceed before Special Court in the absence of accused after his first appearance and the special Court can order so, if satisfied that absence of accused is deliberate or behaviour of accused in the Court is such that his removal is ordered. With regard to the bail, it is provided that an accused person shall not be released on bail by Special Court or by any other Court if there appear reasonable grounds for believing that he has been guilty of scheduled offence, nor shall an accused person be so released unless the prosecution has been given notice to show-cause why he should not be so released. In section 8, burden of proof is shifted to the accused; if he is found to be in possession of or has under his control any article or thing which is capable of being used for, or in connection with, the commission of such offence, or he is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence. Lastly, it may be mentioned that section 7 provides that a person sentenced by a Special Court shall have a right of appeal to the High Court and further express bar is provided that no order can be passed under section 426, Cr.P.C. Which confers power on Appellate Court to grant bail or suspend the sentence. This section also provides that appeal is to be heard by not less than two Judges of the High Court.
7. It would be pertinent at this stage to reproduce verbatim section 7 of the Terrorist Act as it stood in 1975 before any amendment was made in it: "Appeals from sentences imposed by Special Court, etc.--(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."
8. Now, I come straight to Jawad Beg's case PLD 1975 Karachi 628. In this case, decision was given in the year 1975 before any amendment was made in the Suppression of Terrorist Activities (Special Courts) Act, 1975. At that time subsection (2) of section 7, as it stood without any amendment, provided that appeal shall be preferred to the High Court within 30 days of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court. There were two contentions before the Court in Jawad Beg's case. One was that there was express bar in section 7 providing that no order could be passed under section 426, Cr.P.C., as such during hearing of appeal in the High Court, bail cannot be granted as such power has been taken away expressly.
9. The opposite contention was that during hearing of appeal power to grant bail was available regardless of express bar in respect of section 426, Cr.P.C. In support, it was argued that section 7 is divisible into two parts, which are separated by words "save as aforesaid". First part deals with right of appeal to the High Court and second part specifies powers which "no Court" can exercise with regard to any proceedings of the Special Court including passing any order under section 426, or section 491 or section 498 of the Code. Contention was that "no Court" would not include Appellate Court because both parts of section 7 are divided by words "save as aforesaid". It was further submitted that if it was not so, then powers to hear appeal as provided in the first part would be subject to the restriction imposed in second part to the effect that no Court shall have authority to revise such sentence. Other restrictions in the second part are that no Court can transfer any case from a Special Court or make any orders under sections 426, 491 and 498 of the Code. The Court in Jawad Beg's case traced legislative history to Special Criminal Court Ordinance No,II of 1942 and held that language used in section 7 of the Terrorist Act of 1975 is ambiguous for the reason that it is copied from section 26 of the Special Criminal Courts Ordinance of 1942.
10. Discussion and finding of the Court on that point in the case of Jawad Beg's in the relevant paragraph at page 635 of the report is reproduced as under:-- "But the similarity, on which the learned counsel for the State relied, is between the second part of subsection (1) of section 7 of the said Act and section 26 of the 1942 Ordinance. I would first observe that this second part- is separated from the first part by the words: 'but save as aforesaid and'.
11. Then, after these words, the second part of the subsection is an almost verbatim reproduction of section 26, and even the grammatical structure of the sentences in the two provisions is identical. I have deliberately used the word 'almost', because as submitted by the learned counsel for the State, section 26 did not contain any express reference to sections 426 and 498 of the Code, and, according to the learned Advocate-General and the learned Additional Advocate-General, this express reference to sections 426 and 498 manifested, beyond any doubt, the intention of the Legislature to deprive the Division Bench of all powers of granting bail. As to this comparison of the sections, I would add that our Legislature has also dropped the reference to appeals, which preceded the words 'no Court' in section 26. However, whilst dropping this reference, it has, nonetheless, copied the words 'no Court' from section 26, and they create an ambiguity, because they are hardly an apt way of referring to the Division Bench. However, if the matter had rested here, in all the circumstances discussed, I would have accepted the contention of the State Counsel. But they overlooked another difference between the two provisions under comparison.
12. Section 7 expressly excludes the power of transfer, which was not contained in section 26. But this provision shows that the Legislature intended to curtail the powers of Courts other than the Courts created under the first part of subsection (1), and, in these circumstances, although the matter is far from clear it seems to me that the Legislature copied the language of section 26, because it intended to follow that section. Thus, the history of the section is fatal to the submission of the learned Advocate-General and the learned Additional Advocate-General."
13. In the said judgment, on the question of construction of section 7 of the Terrorist Act, 1975, the learned Judge while coming to the conclusion at page 636 of report has observed that legislature has inserted the words "save as aforesaid" and such words have been inserted not merely to separate the two parts of subsection but to make it clear that the powers of the Courts set-up under the first part of subsection (namely the Division Bench) shall not be curtailed by the restrictions contained in second part of the subsection. It was further, observed that any other construction would render the words "save as aforesaid" redundant. In the conclusion, it was said that the matter is not free from doubt but section 7 has not taken away the power of the Division Bench to grant bail to an appellant in an appropriate case.
14. In the judgment of Jawad Beg's case, further reliance is placed on three cases. First case is Emperor v. Banoari Lal Sarma and others AIR 1943 FC 36. Reference was made to this case only to show that Special Criminal Courts Ordinance, 1942, was amended in 1943 because some provisions of that Ordinance had been struck down as ultra vires by the Federal Court in that judgment and since those amendments had no relevance with construction of section 7 of the Terrorist Act, no further reference was made to that case.
15. Second case referred in the said judgment is Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242. Question for consideration in the case of Sarki was whether Commissioner, who was acting as Appellate Authority, under West Pakistan Control of Goondas Ordinance, 1959, could suspend operation of the impugned order, without an express provision to that effect in that Ordinance. Under section 18 after hearing appeal, Commissioner could discharge the person complained against or dismiss the appeal or modify the order in such manner as deemed fit. It was held, that power to suspend the impugned order was ancillary to the power conferred upon Commissioner by section 18 to discharge person complained against on final adjudication. It was so done for the reason that section 18 of the Ordinance was silent about suspension of the impugned order and there was no express bar. Third case referred is Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. Reported in PLD 1975 SC 32. Similar question in that case was whether a Social Security Court having seizin of an appeal under section 59 of West Pakistan Employees' Social Security Ordinance, 1965, has, in the absence of an express provision, jurisdiction to stay execution of order appealed against. It was held, that power to grant interim relief was reasonably incidental or ancillary to the main appellate jurisdiction.
16. It is very clear that in both the Supreme Court cases mentioned above in the special laws power of appeal was there, which was, however, silent about interim relief, hence it was held, that such power of interim relief was available impliedly because it was incidental and ancillary to appeal and was not expressly barred. In support of the view stated above, reliance was placed on Legal Maxim, "Cui jurisdictio data est, ea quoque concesa esse videntur, sine quibus jurisdictio explicari non-potuit" mentioned in section 2 on the subject of implied powers in Maxwell On Interpretation of Statutes Eleventh Edition giving meaning of the maxim as, that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. On the same principle by analogy it can be said that even under section 9, C.P.C. It is provided that the Courts shall have jurisdiction to try all suits except when the jurisdiction is expressly or impliedly barred. This shows that general principle is that the Court must assert its jurisdiction unless it is expressly barred. As against that, right of appeal is creature of statute and must be expressly granted. It is held, in the case of Smt. Ganga Bai v. Vijay Kumar and others reported in AIR 1974 SC 1126 that a suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and, therefore, an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. This shows that for the purpose of power and function forum of appeal will have to depend an whatever powers are specifically given by the statute. If some powers which are incidental in nature are not specifically conferred their availability can be implied but this cannot be done if such powers are expressly barred. In short, it can be said that in appeal, whatever is expressly barred, cannot be impliedly achieved. Principle enunciated in two Supreme Court cases mentioned above cannot be invoked with benefit while considering construction of section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, for the reason that the said Act while giving power of appeal to the Division Bench of the High Court has expressly barred grant of bail under section 426, Cr.P.C., which is the only power to the High Court for grant of bail during pendency of appeal. Section 7 of the Terrorist Act of 1975 is not similar or analogous to other special laws in the Supreme Court cases mentioned-above in which special laws are silent with regard to interim relief and contain no express bar.
17. Law making is the function of the legislature and interpretation of the laws is the function of the Courts. If legislature wants to promulgate special law setting up a forum for appeal and not giving it power to grant interim relief, it can do so provided such intention is manifestly expressed barring such relief. If legislature does so and withhold interim relief in express terms, then there is no gain- saying that such intention cannot be attributed to the legislature because such power of interim relief is ancillary or incidental to the appeal. Such inference can be made only when special law is silent about interim relief and no mention about it is made therein. When legislature specifically provides express bar, then it is to be assumed that legislature has done so purposely and with full awareness. Reference can be made to section 21 of the Sindh Rented Premises Ordinance, 1979, which provides appeal to the High Court against the final order of the Rent Controller subject to the proviso that no injunction shall be granted, if appeal has been preferred from order passed under section 14 of this Ordinance. This question came up for consideration in the case of Azad Bin Haider v. Adam Khan PLD 1981 Kar. 225 and it was held, that intention of legislature is very clear that High Court can hear appeal but cannot grant stay in appeal arising from order passed under section 14 of that Ordinance as such natural inference follows that appeal is to be disposed of promptly without loss of time. That being so, it appears that everything depends upon legislature and the way in which intention is expressed to exclude or not grant of relief.
18. In view of what is stated above, it can now be said that in Jawad Beg's case, decisions of the Supreme Court relied upon are distinguishable and are not of much help. In the absence of case law, conclusion on the construction of section 7 of the Terrorist Act is given for reasons and comparison made with section 26 of Special Criminal Courts Ordinance, 1942. Conclusion is stated at page 636 of the report in following words:-- "Accordingly, whilst I repeat that the matter is not free from doubt, in my humble opinion, section 7 has not taken away the power of the Division Bench to grant bail to an appellant in an appropriate case.
19. However, if I am wrong, even according to the learned Advocate-General and the learned Additional Advocate-General, the curtailment in section 7 is of the powers of the Division Bench under section 426 of the Code, therefore, if the Division Bench has a power of granting interlocutory relief independently of the provisions of the Code, obviously this power would not be affected by the restrictions, or the alleged restrictions, contained in section 7. The learned counsel for the State naturally submitted that the Division Bench did not have any independent or implied power of granting bail, but Mr. Khalid M. Ishaque's submission was to the contrary. I will now examine this submission, and, as this submission was based only on the judgments of the Supreme Court, I would now examine them."
20. It would be pertinent to mention here that when observation was made in the above said judgment to the effect that if Division Bench has power of granting interlocutory relief independently of the provisions of the Code, obviously this power would not be affected by restrictions contained in section 7, what was in the mind of learned author Judge was Constitutional jurisdiction.
21. At the end of the Judgment in Jawad Beg's case, it was held, that applications are maintainable (for bail) but no attempt was made to examine them on merits for the reason that learned counsel for the State had requested to decide legal objections before bail. It would not be out of place to mention here that Mirza Jawad Beg was convicted under the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975, and was sentenced to R.I. For seven years. During pendency of the appeal in the High Court, he applied for bail and his application was disposed of on legal points stated above, but he was not granted bail. Against the judgment on bail application on legal points, as stated above, State filed petition for leave to appeal in the Supreme Court being aggrieved against the finding on interpretation of section 7 of the Terrorist Act, but Supreme Court declined interference vide order dated 3-6-1975, on the ground that there was no operative part of the order as only abstract question of law was answered. Subsequently, his appeal was dismissed by the High Court and he filed petition for leave to appeal in the Supreme Court, where leave was granted and he was released on interim bail. After that appeal was allowed by the Supreme Court and his conviction and sentence were set aside and in consequence he was set at liberty.
22. Now I come to interpretation of section 7 of the Suppression of Terrorist Activities (Special Courts)
23. Act, 1975 as argued by the counsel before this Bench. Mr. Abdul Ghafoor Mangi, AA.-G. Sindh, argued that since abovementioned Terrorist Act is special law and is free from any ambiguity as such ordinary, meaning is to be given to the words used in it. According to him, there is no ambiguity in section 7 of the said Act and intention is very clear that right of appeal is given to the two Judges of the High Court minus powers under sections 426, 498 and 491, Cr.P.C. According to him, literal construction is to be given to section 7 which is very clear on the point of intention and section 426, Cr.P.C. Is expressly barred. He has further submitted that at the most section 7 is to be construed in the light of the fact that the said Act is special law and, further, all other provisions and preambles of the Act are to be read conjunctively in order to ascertain as to what is the policy of the legislature behind passing of this special law. According to him, whatever has been stated by way of reasoning in the case of Mirza Jawad Beg with regard to the interpretation of the words "save as aforesaid" in section 7 of the said Act, still nothing turns on express exclusion of section 426, in second part of that section which shows that appeal can be heard but bail cannot be granted during the hearing of the appeal. It was further submitted by him that in section 7, there is provision that appeal is to be filed within 30 days and the appeal is to be disposed of within 3 months and that is why the grant of bail during pendency of appeal is expressly barred because intention of legislature is that the appeal is to be disposed of expeditiously without any loss of time and within 3 months. It is further, submitted by him that legislature was quite aware of the fact that section 426, Cr.P.C. Contains in-built restrictions providing that Appellate Court shall order bail in cases of sentence of 3 years, if appeal is not decided within 6 months, sentence of more than 3 years and less than 7 years, if appeal is not decided within 1 year and sentence of imprisonment for life or more than 7 years, if appeal is not decided within 2 years. Even then legislature kept out of consideration section 426, Cr.P.C. For the reason that intention was very clear that Appellate Court was invested with powers of hearing appeal minus power of grant of bail under section 426, Cr.P.C., so that the appeal should be disposed of within 3 months which amendment has been brought in section 7 by Amending Ordinance XVII of 1988.
24. On this point, Mr. Khalid M. Ishaque supported interpretation of section 7 of the Terrorist Act in the judgment of Mirza Jawad Beg's case and stated that the judgment was delivered in the year 1975, when amendment was not made to section 7 requiring disposal of appeal within 3 months.
25. According to him, section 7 is divided into two parts and in the first part power of hearing appeal is given to two Judges of the High Court and in the second part powers are specified which no Court can exercise with regard to any proceedings of special Court and "no Court" would not include Division Bench of the High Court hearing appeal, as such, express bar of section 426, Cr.P.C. Would not come in the way of grant of bail during pendency of appeal which is ancillary and incidental to the hearing of the appeal as such that relief can be granted in appropriate case. He further argued that in a statute if words used are clear and unambiguous, then ordinary meaning is to be given but if words used are ambiguous and grammatical construction leads to a manifest contradiction causing inconvenience, absurdity, hardship or injustice, which is presumably not the intention of the legislature, then it is permissible for the Court to supply "Cassus Omissus" (to supply omissions) to alter and give meaning which law maker intended. In support, he cited case of Muhammad Ismail and others v. The State, reported in PLD 1969 SC 241. In the reported case, the facts were that Martial Law was proclaimed on 25th March, 1969, abrogating the Constitution and providing that all Courts and Tribunals in existence shall continue and exercise all their powers and jurisdiction which they have been exercising before abrogation of the Constitution and no Court shall call in question any Martial Law Regulation or Order or any finding or judgment or order of Military Courts and no writ or other order shall be issued against Chief Martial Law Administrator or any person exercising powers or jurisdiction under his authority. Then came Provisional Constitution Order of 4th April, 1969, and in paragraph 2, it was declared that provisions of this Order shall be in addition to and not in derogation of the proclamation and shall be read and construed accordingly. Paragraph 6 of the Order provided that no appeal shall lie to the Supreme Court from any judgment, final order or sentence of a High Court in criminal proceedings In that case, learned Attorney-General stated at the bar that he had written instructions to inform the Court that authors of Provisional Constitution Order have no intention at all to repeal clause (3) of Article 58 or in any way to curtail jurisdiction conferred thereby. It was also argued by the Attorney-General that it was well- established that there was strong presumption that jurisdiction of a Superior Court could be taken away only by express words. All other Advocates appearing in that case had unanimously supported the Attorney-General and in the circumstances, it was held by the Court as under:-- "In order to give effect to that intention and to avoid any hardship as a result of a drastic change in the jurisdiction of this Court, we feel justified in supplying the omission in the present case and holding that, in clause (1) of paragraph 6 of the Provisional Constitution Order, 'appeal' means only an 'appeal as of right',"
26. It is thus, clear that in the reported case mentioned above, it was admitted by all without reservation that there was drafting mistake and, if the same was allowed to remain unaltered, it would create hardship because such was not the intention of the legislature, hence omission was supplied to clarify that "appeal" meant only "appeal as of right". In my view, this proposition will not apply to the case under consideration for the reason that intention of the legislature is very clear in section 7 of the Terrorist Act that while power of appeal is given to the High Court in first part, power of grant of bail has been expressly taken away in the second part by mentioning in very clear language that no order can be passed under section 426, Cr.P.C. "No Court" mentioned in second part shall include High Court hearing appeal in first part for the reason that power to grant bail after conviction under section 426, Cr.P.C. Can be exercised by no other Court except the Court which is competent to hear the appeal.
27. In support of his argument, Mr. Khalid M. Ishaque relied upon the case of Ch. Zahur Ilahi v. The State reported in PLD 1977 SC 273. His argument was again that jurisdiction of superior Courts cannot be taken away except by express words or necessary implication. Question for consideration in that case was interpretation of section 13(1)(b) of Defence of Pakistan Ordinance (XXX of 1971) to be read with rule 210 of Defence of Pakistan Rules made thereunder.
28. Section 13 of the Ordinance mentioned above allows appeal to the High Court in case of sentence of death, life imprisonment or imprisonment for ten years and further provides that but save as aforesaid, no Court shall have authority to revise such order or sentence or transfer any case from 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. Rule 210 further provided that no person accused or convicted of a contravention of the rules or orders made thereunder, if in custody, be released on bail, unless the prosecution was given opportunity to oppose the application and the Court was satisfied that there were reasonable grounds for believing that he was not guilty of any such contravention. From amongst five learned Judges of the Supreme Court who heard this case, majority view of three learned Judges was that High Court was competent to hear bail application as section 498, Cr.P.C. Was not specifically mentioned in the exclusion clause barring jurisdiction under section 13 of Defence of Pakistan Ordinance. It was also held that section 13 does not oust jurisdiction of the High Court under section 561-A, Cr.P.C. To intervene in a case of abuse of powers or misuse of powers under the Ordinance or Rules. It was observed that "no Court" mentioned in section 13 would not include superior Court or High Court unless ouster of jurisdiction is by express words. This observation shall not apply to the interpretation of section 7 of the Terrorist Act for the reason that in section 7, jurisdiction of the High Court under section 426, Cr.P.C. Is expressly barred and section 426, Cr.P.C. Is specifically mentioned in the clause which excludes the jurisdiction. Mr. Khalid Ishaque then cited case of Syed Zeeshan Akhtar v. The State reported in 1988 P Cr. L J 843, which is a decision of Division Bench of our own High Court. In the reported case interpretation of section 10 of Offences in Respect of Banks (Special Courts) Ordinance IX of 1984 is given. Language of section 10 of the Ordinance mentioned above is same as language used in section 7 of the Terrorist Act. In this case, apart from relying upon maxim "Cui jurisdictio data est, ea quoque concesa esse videntur, sine quibus jurisdictio explicari non-potuit" with which there is no quarrel or dispute, Division Bench has held, that High Court may not be competent to admit an appellant to bail under section 426, Cr.P.C. But it is competent to pass an interim order during pendency of the appeal in a fit case on the principles enunciated in cases namely The Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242 and the case of Sindh Employees'
29. Social Security Institution and another v. Adamji Cotton Mills Limited reported in PLD 1975 SC 32.
30. With respect, I say that I am of the view that High Court is not competent to pass orders under section 426, Cr.P.C. When this section is specifically mentioned in the excluding clause and principles enunciated in the cases of Ali Sher Sarki and Social Security Institution decided by the Supreme Court PLD 1971 SC 242 and PLD 1975 SC 32 cannot be invoked in a case where jurisdiction of the Court is specifically barred but can be invoked in a case where special law under consideration does not bar specifically interim relief but is siltent about it. I am further of the view that in the Offences in Respect of Banks (Special Courts) Ordinance IX of 1984, as well as Suppression of Terrorist Activities (Special Courts) Act, 1975 since jurisdiction of the High Court under section 561-A, Cr.P.C. Is not specifically and categorically barred, as such it is intact to give desired relief in an appropriate case which can be called a case of hardship. For example, in spite of specific bar under section 426, Cr.P.C., in the absence of bail application if appeal is not decided within the time stipulated or when not stipulated, what would be the result? It may be mentioned here that in the Terrorist Act, in section 7, it is mentioned categorically that appeal is to be disposed of within three months and quick disposal within limited time appears to be justification available with the legislature for providing specific bar of not allowing the Appellate Court to pass order of bail under section 426, Cr.P.C. During pendency of appeal. Section 561-A, Cr.P.C. Gives inherent power to the High Court to make such orders as may be necessary to give effect to any order under Criminal Procedure Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. In a hardship case as mentioned above, such order of granting desired relief can be passed by the High Court under its inherent jurisdiction in order to prevent abuse of process of any Court or otherwise to secure the ends of justice.
31. Mr. A.Q. Halepota argued before us that section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, which is in issue, is not free from serious difficulty on account of use of language in it. He further took us through various provisions of the said Act in order to show the scheme of the Act which aims at speedy disposal of cases relating to the scheduled offences, pointing out salient features such as day to day proceedings and trial in absence of the accused, as contemplated in section 5-A of the Terrorist Act, provisions pertaining to the grant of bail, restraining other Courts from interference and disposal of appeal within three months. According to him, section 7 of the Terrorist Act provides for appeal to be heard by two Judges of the High Court to be disposed of within three months without making available powers to the Appellate Court exerciseable under section 426, Cr.P.C. It was further submitted that, in such circumstances, power of appeal of the High Court as contemplated under section 423, Cr.P.C. Are available in totality with the exception of restriction that bail cannot be granted under section 426, Cr.P.C. Which is normal power of High Court to grant bail during pendency of appeal. Under section 423, Cr.P.C., Appellate Court is competent to reverse finding and sentence, and acquit or discharge the appellant, or order him to be retried by the Court of competent jurisdiction subordinate to such Appellate Court or to alter the finding, maintaining the sentence, or, with or without altering the finding, to reduce the sentence, or make any amendment or any consequential or incidental order that may be just and proper. The thrust of the argument was that in spite of inhibitions contained in section 7 of the Terrorist Act, revisional jurisdiction of the High Court under sections 435 and 439, Cr.P.C. As well as inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Are available by implication as the same are not expressly barred and further for revisional jurisdiction, Special Court is inferior to the High Court and is subject to supervisory control of the High Court. It was further submitted by Mr. Halepota that as contemplated under section 439, Cr.P.C. Revision will not lie if appeal is provided but in the instant case under consideration appeal is provided under the special law that is why revisional jurisdiction in Cr.P.C. Would be available because it is not specifically barred under section 7 of the Terrorist Act. Likewise, Mr. M.H. Shah argued in support of same view as advocated by Mr. Halepota but with slight difference. According to Mr. Shah, section 7 of the Terrorist Act is divided into two parts and ambiguity has arisen because language of this section is lifted from section 26 of the Special Criminal Courts Ordinance No,II of 1942, which provided no right of appeal.
32. Draftsman while writing language of section 7 of the Terrorist Act made a mistake by copying language from section 26 of Ordinance No,II of 1942, in spite of difference between the two laws to the effect that while Terrorist Act provides for appeal and Ordinance No,II of 1942, did not provide for right of appeal. Mr. Shah further argued that second part in section 7 is in-operative to the extent of inconsistency with first part. He has submitted that if powers under section 426, Cr.P.C. Are not available in section 7 of the Terrorist Act, then powers under sections 439 and 561-A, Cr.P.C. Are available by implication and Special Court would be treated as subordinate to the High Court under supervisory jurisdiction of the High Court as is defined under Article 203 of the Constitution. It was submitted that if literal construction leads to repugnancy then the Court may add words in order to remove difficulty and confusion.
33. While dealing with contentions of M/s. Halepota and Shah, I would like to say at the very outset that it would not be correct to say that Ordinance No,II of 1942, mentioned above did not provide for an appeal. Perusal of the whole Ordinance shows that 3 classes of Courts were constituted namely, (i)
34. Special Judges, (ii) Special Magistrates and (iii) Summary Courts, because emergency had arisen which made it necessary to set-up such Special Criminal Courts. From sentence passed by Special Judge, review was made available to a Judge of the High Court to be nominated by the Provincial Government, as contemplated under section 8 of the said Ordinance. From sentence passed by Special Magistrate, an appeal was provided to lie before Special Judge, as contemplated under section 13. Likewise, under section 19, appeal was made competent from the sentence of Summary Court to the Chief Presidency Magistrate and elsewhere to the Special Magistrate or any other Magistrate of the First Class appointed by the District Magistrate. Reading of Ordinance No,II of 1942, as a whole shows that after providing forums of review and appeals, as stated above, attempt was made in section 26, thereof to exclude interference of other Courts in the proceedings before Special Courts set up under the said Ordinance. In section 8 which provides for review, it is mentioned that decision of the person (Judge of the High Court hearing review) shall be final and in sections 13 and 19 which relate to appeals, it is mentioned that Appellate Court would follow the said procedure and have some powers as are available under the Code. After that, in section 26 more clarifications are provided in order to show which Courts are not intended to make interference in the proceedings. Section 26 envisages that 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, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court. It may be kept in view that this Ordinance was promulgated way back in the year 1942 which was much before partition of the subcontinent. Now, if section 26, is to be read in isolation and not alongwith other provisions of the said Ordinance, then impression is gatherable that the Ordinance does not provide for an appeal because restriction is stated negatively by use of words that there shall be no appeal from any order or sentence. On the other hand, if section 26 is read in conjunction with other provisions of the Ordinance, then it would appear that Ordinance has really provided forums for review and appeals, which have been saved in section 26 under the words "save as provided in this Ordinance". Section 26 contains two restrictions both stated negatively. In the first restriction of "no appeal" review and appellate authorities specifically mentioned and invested with powers are saved. In the second restriction starting with words "no Court shall have authority" certain acts are mentioned specifically which are barred and those acts are four in numbers. Here "no Court" shall include Court of review and Appellate Courts mentioned in the Ordinance upon which restrictions specified are binding. Those restrictions are, firstly, to revise such order or sentence which would include revisional jurisdiction of the High Court because word "revise" is derived from revision which jurisdiction is mentioned in the Criminal Procedure Code. In the drafting of the said Ordinance, intention of the legislature is manifest that only one remedy of appeal and review has been provided in express terms. Secondly, transfer of any case is prohibited. Thirdly, passing of any order under section 491, Cr.P.C. Is prohibited which would include High Court as Court of Review in the instant case. Fourthly, restriction is that no other Court shall have any jurisdiction of any kind in respect of proceedings of any such Court. This last restriction is of general kind. Hence the intention as expressed in the Ordinance is very clear that against the order of Special Judge review is competent before the Judge of the High Court to be nominated by the Provincial Government. High Court and other Appellate Courts are not allowed revisional jurisdiction and to make transfer of any such case and pass order under section 491 of the Code.
35. Since in the judgment of Mirza Jawad Beg's case, it is stated that in section 7 of the Terrorist Act of 1975 language is copied from section 26 of Ordinance No,II of 1942, hence it would be pertinent at this stage to reproduce both sections verbatim side by side in order to facilitate comparative study:-- "26. Notwithstanding the 7. Appeals from sentences imposed provisions of the Code, or of any by Special Court. etc.--(1) A person other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court."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.
36. (3/ Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court."
37. Perusal of the provisions placed side by side above shows that copy is not in totality and there is marked difference in the languages of the two provisions, albeit sentences at three places have been lifted from section 26 and incorporated in section 7. At first place in section 7, borrowed words are, "save as aforesaid" and in the second place words are, "notwithstanding the provisions of the Code " and in the third place words are, "no Court shall have authority to revise "
38. Coming back to section 7 of the Terrorist Act, I would like to say that, if contention raised at the bar is accepted that section 7 is divided into two parts by words "but save as aforesaid", then also it appears very clearly that the intention expressed is that in the first part power is given to the High Court to hear appeal and in the second part "no Court" shall include High Court, which is restrained from revising any such sentence, transfering any case from Special Court and making any order under sections 426, 491 and 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. If contention is accepted that section 7 is not to be divided into two parts but can be read as a whole, then also it appears that intention of legislature is explicitly clear that power is given to High Court to hear appeal without power of granting bail under section 426, Cr.P.C. During pendency of appeal plus other restrictions specified therein. Legislature has made its intent very clear by describing the restrictions either by acts or by reference to sections of the Code. In both the methods intent is clear as to what is to be excluded. In the Act are mentioned "to revise such sentence" which is revisional jurisdiction and transfer of cases from Special Court. Apart from that, three sections are categorically mentioned as sections 426, 491 and 498 of Cr.P.C., which are powers respectively of grant of bail during pendency of appeal, directions by way of habeas corpus and power of grant of bail at any stage whether there be an appeal on conviction or not including power of pre-arrest bail. There is no justification for contending that words "no Court" in second part do not include High Court hearing appeal in the first part because this fact is to be admitted that legislature has given expressly only power of hearing appeal to the High Court without power of granting bail during pendency of appeal because the intention and the purpose is that appeal is to be disposed of within three months' time speedily. Likewise, revisional jurisdiction has also been Laken away because "no Court" including High Court is restrained from revising such sentence. Restrictions are in the shape of revision, transfer or passing any orders under sections 426, 491 and 498 of the Code. If legislature has not said in a very specific terms that revisional jurisdiction is barred or jurisdiction of the High Court under sections 435 and 439 of the Code is excluded as has been done in respect of sections 426, 491 and 498 of the Code, then it can be said that revisional jurisdiction is barred impliedly because revising of sentence is mentioned as such which can be done in no other manner except in revisional jurisdiction.
39. It is held, by the Supreme Court of Pakistan in the case of Messrs Amin Soap Factory v. Government of Pakistan and others, reported in PLD 1976 SC 277 that it is not for the Courts to question the wisdom of the legislature and their judicial function in this regard is confined only to the interpretation of the law as it is. Reference can be made to Columbia Law Review, 1935, in which in the Chapter of The Interpretation of Statutes at page 523, it is stated that the Courts should adhere to the literal meaning of the words as they stand that, not infrequently, the Judges have had to adopt a construction which they recognized was not in accordance with what Parliament intended.
40. It is held, in the case of London Transport Executive v. Betts (Valuation Officer), reported in 1958 All England Law Reports 636 at 655 that the Judges have no right to fill in gaps which they suppose to exist in an Act of Parliament, but must leave it to Parliament itself to do so. It is observed in the case of Haji Saleh Muhammad and 2 others v. Haji Jumma Khan Agha and 4 others, reported in 1983 SCMR 587 at 594 by Mr. Justice Zaffar Hussain Mirza that the object underlying the various principles of interpretation of statutes is to make the legislature intent effective. It is held, by a Full Bench of Lahore High Court in the case of Ms'. Rup Devi v. Matwal Chand, reported in PLD 1968 Lah. 800 at 812 that it is a well-established canon of the construction of statutes that a construction should be placed on the language employed in a section which does not render any part of that section or the words employed in that section superfluous or nugatory or wholly redundant.
41. Same language as is used in section 7 of the Terrorist Act is used in section 10 of the Offences in respect of Banks (Special Courts) Ordinance, 1984 which also provides that 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. It is held, by a Division Bench of the Lahore High Court in the case of Altaf Hussain v. The State reported in PLD 1985 Lah. 10 that section 10 of the Banks Ordinance gives right of appeal to convicted person to the High Court but prohibits revision and suspension of sentence and grant of bail under section 426, Cr.P.C. Question of interpretation of section 10 of the Banks Ordinance came up for consideration in the case of Nifasat Ali Khan v.
42. The State, reported in PLD 1989 Kar. 198 in which it is held, that in spite of the fact that appeal is competent before High Court from the decision of Special Court but as contemplated under section 10 of the Ordinance, the powers of the High Court are narrowed down to the hearing of the appeal only from conviction, and High Court cannot hear appeal from acquittal or Revision application against the acquittal at the instance of complainant. It is also held, that in section 10 "no Court" automatically includes High Court. It is further held, that apart from positive restrictions specified in section 10, all other powers of the High Court during hearing of appeal are intact including power under section 561-A, Cr.P.C. Which is not mentioned expressly in the ouster clause.
43. Whatever is intended not to apply is stated expressly and whatever is not stated is to be deemed as applicable and not excluded.
44. Provisions similar to section 7 of the Terrorists Act exists in section 185 of the Customs Act, 1969, in which Court of Special Judge is set up for trial of case under the Customs Act. Special Appellate Court is set-up which is presided over by a Judge of the High Court who nominated by the Government. Jurisdictions of both these Courts are specified by stating that no Court, other than Special Judge or Special Appellate Court, shall entertain any application or petition or pass any order or give any direction under Chapters XXXVII, XXXIX, XLIV or XLV of the Criminal Procedure Code. Question of interpretation of jurisdiction of Special Appellate Court under this Act came up for consideration in the case of Butani Papu Udharam v. The State, reported in PLD 1980 Kar. 49, in which it is held that under the said Act jurisdiction of the High Court under section 561-A, Cr.P.C. Is available as it is not expressly barred because Chapters of the Code which are mentioned specifically in section 185-B of the Customs Act excluding jurisdiction of the other Courts do not include Chapter XLVI which covers section 561-A, Cr.P.C. Similarly in the Drugs Act XXXI of 1976, Drug Court is set 4 and under section 31 thereof, forum of appeal is provided that appeal can be heard by a Bench of two Judges of the High Court. Question of interpretation of jurisdiction under the said Act came up for consideration in the case of F. Brummel and others v. The State reported in PLD 1986 Karachi 390, in which it was held, that even if Drugs Act did not confer upon High Court revisional jurisdiction, same could be invoked under sections 435 and 439, Cr.P.C. As High Court could exercise appellate jurisdiction over the Drugs Court which was in that sense inferior to the High Court. It may be mentioned that the Drugs Act is silent about revisional jurisdiction and has provided that in all matters with respect to which no procedure has been prescribed under the said Act, procedure prescribed by Criminal Procedure Code would apply. The purpose of citing similar laws and rulings in support of the view is to show that where Special Law does not bar specifically jurisdiction mentioned in the Criminal Procedure Code or is silent about it, it is allowed to be invoked. Jurisdiction will not be allowed to be invoked if on the other hand either it is specifically barred or impliedly when there is some kind of indication and indirect reference towards its barring.
45. Construction put on section 7 of the Terrorists Act, as stated-above, gets full support from the decision of Full Bench of Peshawar High Court in the case of Muhammad Gul and another v. The State reported in 1985 P Cr. L J 205.
46. For the facts and reasons mentioned above, on the question of interpretation of section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, my considered view is that this section clearly provides that from conviction under the said Act appeal can be heard by a Division Bench of the High Court but during the pendency of the appeal jurisdiction is barred in respect of suspension of sentence and grant of bail under section 426, under section 491 and under section 498, Cr.P.C. As well as no order can be passed under revisional jurisdiction nor any order can be passed with regard to transfer of a case from M Special Court. This construction is so placed on section 7 in the said Act keeping in view preamble of the Act and other provisions, which manifest the intention of the legislature that cases of sabotage, subversion and terrorism in the scheduled offences are to be tried speedily and their appeals are also to be disposed of expeditiously within three months. For that reason, legislature intently has deprived Court of Appeal from power of grant of bail under section 426, Cr.P.C. During pendency of appeal. Since inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Is neither specifically barred nor impliedly, the same is available to pass such orders which may be necessary to give effect to any order under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice in appropriate case of hardship. Hardship case may include a case in which appeal is not disposed of within three months or order of bail is to be passed in order to secure the ends of justice. With optimum respect, I say that, I am, unable to subscribe to the line of reasoning adopted in the case of Mirza Jawad Beg reported in PLD 1975 Karachi 628, in which reliance is not relevantly placed on the cases of Commissioner Khairpur v. Ali Sher Sarki PLD 1971 SC 242 and Sindh Employees' Social Security Institution v. Adamji Cotton Mills Limited. PLD 1975 SC 32 decided by the Supreme Court of Pakistan for the reason that Special Laws under consideration in those cases were silent on the point of interim relief during hearing of appeal holding that such right of interim relief is available being ancillary or incidental to the hearing of appeal. This principle cannot apply to the construction of section 7 of the Suppression, of Terrorist Activities (Special Courts) Act, 1975, for the simple reason that in the said Act there is specific bar that section 426, Cr.P.C. Shall not apply during pendency of appeal. However, jurisdiction of the High Court under section 561-A, Cr.P.C. Is intact as the same is not barred expressly or impliedly and orders which are consistent with ends of justice can be passed in appropriate cases of hardship including grant of bail during pendency of appeal.
47. Before parting with this case, we would like to place on record appreciation of valuable assistance rendered by all the Advocates who had appeared in these cases before us including learned amicus curiae.
48. SALAHUDDIN MIRZA, J.--I agree.
49. ABDUL RAHIM KAZI, J.-I agree.