RUSTAM S. SIDHWA, J.---This judgment will dispose of Criminal Appeal (CrA.No.48 of 1985) filed by the Allied Bank of Pakistan Ltd. Against the judgment of a learned Division Bench of the Lahore High Court dated 24-2-1984 allowing bail to Khalid Farooq respondent pending his trial by the Special Court (Offences in Banks) (hereinafter referred to as "the Special Court") under sections 409, 420, 468 and 477-A, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 and Criminal Appeal (CrA.No.49 of 1985) filed by Muhammad Aslam appellant against the judgment of a learned Division Bench of the Lahore High Court dated 29-1-1985, rejecting his application for suspension of the execution of his sentence and release on bail, pending the final disposal of his appeal.
2. The brief facts relevant to criminal appeal (CrA. No.48 of 1985) are that Khalid Farooq respondent maintained two accounts with the Allied Bank of Pakistan Ltd., Kutchery Bazar Branch, Sargodha. On 31-1-1981 an FIR under sections 40`i, 468, 477-A, P.P.C. And section 5(2), P.C.A. Was registered on behalf of the Bank against Muhammad Ismail, the Manager of the Kutchery Bazar Branch of the Allied Bank of Pakistan and Khalid Farooq respondent in respect of embezzlement of large sums of money. Khalid Farooq respondent applied for pre-arrest bail before the Sessions Judge, Sargodha, which was allowed on interim basis and thereafter confirmed on 18-2-1981. The investigation of the case was with the F.I.A., Lahore. The case was thereafter entrusted for trial to the Martial Law Court, whereupon the respondent was arrested on 24-11-1982. With the enforcement of Offences in Respect of Banks (Special Courts) Ordinance, IX of 1984 (hereinafter to be referred to as "the Ordinance") the case was transferred to the Special Court for trial. Khalid Farooq respondent thereafter applied for bail before the Special Court, which was disallowed on 9-6-1984 on the ground that prima facie there appeared reasonable grounds for believing that he was guilty of the scheduled offences imputed to him. He thereupon moved the Lahore High Court for bail, which was allowed by a learned Division Bench on 24-10-1984 on the ground that the earlier bail granted to the respondent by the Sessions Judge, Sargodha, still remained in the field and could not be cancelled by the Special Court constituted under the Ordinance. In this view of the matter, the learned Judges felt that they were not required to discuss the merits of the case. Being aggrieved by the said order, the appellant-Bank petitioned this Court for leave to appeal against the same, which leave was granted to consider the true interpretation of sections 4(7) and 10 of the Ordinance.
3. On behalf of the appellant it is submitted that the power available to the High Court to grant bails under section 498 of the Code of Criminal Procedure (hereinafter referred to as "the Code") having been taken away by section 10(1) of the Ordinance, the High Court had no power to release the respondent on bail pending the disposal of his case. Even assuming that such a power was available, it is submitted that the learned Judges of the High Court legally erred in releasing the respondent on bail by assuming that the pre-arrest bail granted by the Sessions Judge, Sargodha, to the respondent remained effective even though he had been arrested on 24-11-1982. It is contended that the learned Judges erred in assuming that the Special Court had cancelled the said pre-arrest bail granted by the Sessions Judge, when in fact no such bail was cancelled. It is also urged that the learned Judges legally erred in holding that they were not required to discuss the merits of the case, when under section 5(6) of the Ordinance they were bound to find as a fact that the material on the record against the respondent did not reasonably show that he was guilty of the offences which had been imputed to him.
4. On behalf of the respondent it is submitted that the Special Court has power pending the trial of the case before itself to grant bail to an accused, in view of section 5(6) of the Ordinance. It is submitted that the words "or by any other Court" appearing in subsection (6) of section 5 of the Ordinance would include the High Court. It is further submitted that the ouster of section 498 of the Code from the power available to the High Court, as stated in section 10(1) of the Ordinance, does not have the effect of ousting the power granted by section 497 of the Code to the High Court to grant bail. In this respect the learned counsel has cited Shahzad Hussain v. The State (PLD 1980 Lah. 54), Altaf Hussain v. The State (PLD 1985 Lah. 10) and Nifasat Ali Khan v. State (PLD 1989 Kar.
198). It is further contended that any form of ouster should not be readily inferred and any provision dealing with ouster must be strictly construed so its not to affect similar or alternate powers available with Courts under the Constitution or other provisions of the law. In this connection the learned counsel has referred to Begum Shaheen Ramay v. State (PLD 1977 Lah. 1414). Further, Sadiq Ali v. State (PLD 1966 SC 589), Muhammad Ayub v. Muhammad Yaqub (PLD 1966 SCE 1003) and Zia-ul-Hassan v. State (PLD 1984 SC 192) have been cited to show the parameters laid down by this Court in respect of the application of sections 496, 497 and 498 of the Code by different Courts in differing situations. It is further submitted that the automatic cancellation of bail provided in section 4(7) of the Ordinance is only available in respect of bails which have been granted to accused persons by the Courts which have tried the cases and not by Courts which have not or were not competent to try the same and since in the instant case pre-arrest bail had beer allowed to the respondent by the Sessions Judge, when t0a; case was triable by the Special Judge Anti- Corruption, the pre---arrest bail has not been granted by the Court seized of the trial and therefore the same automatically did not stand cancelled. It is lastly contended that the trial of the respondent has now been set down by the Special Court for a date in December this year and as the respondent has been on bail for almost five years and his trial is to begin in December, he may be permitted to remain on bail pending the final decision in his case.
5. The brief facts of the case in respect of Criminal Appeal (CrA.49 of 1985) are that Muhammad Aslam appellant was convicted on 29-11-1984 under sections 477-A and 471, P.P.C. By Mr. Justice Ghazanfar Ali Gondal, Special Court constituted under the Ordinance, and sentenced to five years'
R.I. And a fine of Rs.12,000 or in default thereof to undergo further one year's R.I. Under section 477-A, P.P.C. And to two years' R.I. With fine of Rs,12,000 or in default thereof to undergo further R.I. For six months under section 471, P.P.C. The appellant preferred an appeal before the High Court under section 10 of the Ordinance and with it filed an application for bail pending disposal of his appeal. A learned Division Bench of the High Court dismissed the said application on 29-1-1985 on the ground that section 10 of the Ordinance barred the jurisdiction of the Court from either suspending the sentence or releasing the convict on bail, by virtue of the rule laid down in Altaf Hussain's case (supra), and that bail could not be granted under section 561-A of the Code in the exercise of its inherent powers, in view of the rule laid down by the Privy Council in Lala Jairam Das v. Emperor (AIR 1945 P C 94). Being aggrieved by the said order, the appellant petitioned this Court for leave to appeal against the same, which leave was granted to consider whether section 10 of the Ordinance barred the High Court from suspending the sentence of a convict and releasing him on bail, pending the disposal of his appeal. '
6. On behalf of the appellant it is submitted that in section 10 of the Ordinance the words "no Court shall have authority .... To make any order under section 426 of the Code" refer to a Court other than the High Court, for wherever the High Court is intended the words "High Court" are mentioned and wherever the Special Court is intended the words "Special Court" .,re mentioned and therefore the word "Court" as used in section 10 of the Ordinance can only have reference to a Court other than the High Court or the Special Court. In this view of the matter all powers available to the High Court as Court of Appeal from sentences passed by a Special Court are available to it and the power of suspending the execution of a sentence and releasing the person convicted on bail, being substantively conferred under section 426 of the Code and also being ancillary and incidental to its appellate jurisdiction, are thus available to the High Court. It is further submitted that the powers of the High Court under section 561-A of the Code are also available to it as a Court of Record, the same being otherwise inherent powers. It is lastly contended that the High Court under its powers of revision available under section 435 of the Code can also grant bail. It is, therefore, submitted that the High Court can release a convict on bail, pending the final disposal of his appeal.
7. On behalf of the State it is submitted that the word "Court" as appearing in section 10 of the Ordinance refers to all Courts, including the High Court, but not the Special Court, that due to the specific ouster of section 426 of the Code from the powers available to the High Court, neither can the execution of the sentence be suspended, nor can the convict be released on bail, nor can the inherent power under section 561-A of the Code be invoked in that respect and that even otherwise the power under section 435 of the Code, which is regulated by section 439 of the Code, is excluded by the language of section 10 of the Ordinance itself and therefore neither the sentence can be suspended nor bail can be granted by the High Court to a convict, pending the final disposal of his appeal.
8. Before we advert to the arguments, it is necessary to set down certain sections of the Ordinance or parts thereof which are relevant:- Section 2(b).---"Code" means the Code of Criminal Procedure, 1898 (Act V of 1898).
Section 2(d).---"scheduled offence" means an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank; and Section 2(e).---"Special Court" means a Special Court constituted under section 3.
Section 3.---(1) The Federal Government may, by notification in the official Gazette, constitute, for the whole or any part of Pakistan, Special Courts consisting of a person who has been or is, or is qualified for appointment as a Judge of the High Court.
(2) A Special Court shall sit at such place as the Federal Government may, by notification in the official Gazette, specify in this behalf.
Section 4.---(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court.
(2) The Federal Government may, from time to time, by notification in the official Gazette, include in the First Schedule such other offences as it deems necessary or expedient.
(3) All cases relating to a scheduled offence pending in any Court other than a Special Court immediately before the commencement of this Ordinance shall, on such commencement, stand transferred to the Special Court having jurisdiction over such cases.
(4) Whenever an offence is included in the First Schedule under subsection (2), all cases relating to that offence pending in any Court other than a Special Court immediately before such inclusion shall stand transferred to the Special Court having jurisdiction over such cases.
(5) In respect of cases transferred to a Special Court by virtue of subsection (3) or subsection (4), the Special Court shall not, by reason of the said transfer, be bound to recall and rehear any witness who has given evidence in the case before transfer and may act on the evidence already recorded or produced before the Court which tried the case before the transfer.
(6) If, in the course of a trial before a Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence.
(7) In cases transferred to a Special Court by virtue of sub-section (3) or subsection (4), any bail granted to an accused person by the Court which tried the case before the transfer shall stand cancelled.
Section 5 (6).---An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a 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.
(7) Where an accused person is released on bail, the amount of bail shall be fixed having regard to the gravity of the charge against such person and, where the charge specifies any amount in respect of which the offence is alleged to have been committed, shall not be less than twice the said amount.
(8) A Special Court shall, in all matters with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code for the trial of the cases by Magistrates.
Section 6(1): -Subject to subsection (2) and subsection (3), a Special Court may pass any sentence authorised by law and shall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction.
Section 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.
Section 12.---The provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force.
9. At this stage it may be stated that some of the provisions of the Suppression of Terrorist Activities (Special Courts) Act, XV of 1975, are almost similar to those in the Ordinance. In this respect sections 5(6) and (7), 10(1), (2) and (3) and 12 of Act XV of 1975 are the same as sections 5(6) and (8), 7(1), (2) and (3) and 10 of the Ordinance. However, in 1976 the right to file an appeal against an acquittal was provided in section 7 of Act XV of 1975 by Act III of 1976. Likewise, section 6 of the Act is almost similar to section 6(1) of the Ordinance, though the latter has some additions to it. The object of mentioning this is that cases decided under Act XV of 1975 will have relevance to the matters falling for determination under this Ordinance.
10. The Ordinance has been enacted for the purposes of providing speedy trial of certain offences listed in the Schedule to the Ordinance, committed in respect of Banks and for matters connected therewith or incidental thereto. Under section 3 of the Ordinance, the Federal Government may constitute, for the whole or any part of Pakistan, Special Courts consisting of a person who has been or is, or is qualified for appointment as, a Judge of the High Court. A Special Court has to sit at such place as the Federal Government by Notification may specify in that behalf. Under section 4(1), the offences mentioned in the Schedule are exclusively triable by the Special Court. Under section 4(2), the Federal Government, from time to time, can include in the First Schedule such other offences as it may deem necessary or expedient. Under section 4(3) all cases relating to a scheduled offence pending in any Court other than a Special Court immediately before the commencement of the Ordinance, on such commencement stand transferred to the Special Court having jurisdiction over such cases. Under section 4(4), whenever any offence is freshly included in the First Schedule under subsection (2), all cases relating to that offence pending in any Court other than a Special Court immediately before such inclusion, stand transferred to the Special Court having jurisdiction over such cases. Under section 4(7), in cases transferred to a Special Court by virtue of subsection (3) or subsection (4), any bail granted to an accused person by the Court which tried the case before the transfer stand cancelled. Under section 5(6), an accused person cannot be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor can such an accused be so released unless the prosecution has been given notice to show cause why he should not be so released. Under section 5(7) of the Ordinance, where an accused person is released on bail, the amount of bail has to be fixed having regard to the gravity of the charge against such person and, where the charge specifies any amount in respect of which the offence is alleged to have been committed the amount of bail has not to be less than twice the said amount.
Under section 5(8), a Special Court, in all matters with respect to which no procedure has been prescribed by the Ordinance, has to follow the procedure prescribed by the Code for the trial of cases by Magistrates. Under section 6(1), subject to subsection (2) and subsection (3), a Special Court car pass any sentence authorised by law and shall have all the powers confirmed by the Code on a Court of Session exercising original jurisdiction. In short, the status of the Special Court is equivalent to that of a Court of Session, though presided I by a person who has been or is a Judge of the High Court. It can exercise all the powers conferred by the Code on a Court of Session exercising original jurisdiction, though the procedure to be followed in respect of the trial of offences has to be that for the trial of cases by Magistrates instead of that prescribed for trial by Courts of Session. Under section 10 of the Ordinance a person sentenced by the Special Court has a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but except as stated above and notwithstanding the provisions of the Code or 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 has been given 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 to have any jurisdiction of any kind in respect of any proceedings of the Special Court. Under section 10(2) of the Ordinance, the appeal under subsection (1) has to be preferred to the High Court within 30 days of the passing of the sentence, which has to be heard by a Bench of not less than two Judges of the. High Court. Under section 10(3) of the Ordinance, Chapter XXIX of the Code applies to the suspension, remission and commutation of sentences passed by a Special Court. Under section 12, the provisions of the Ordinance have effect notwithstanding anything contained in the Code or any other law for the time being in force:
11. Learned counsel for the parties have cited certain cases before us. Some further cases under the Suppression of Terrorist Activities (Special Courts) Act, XV of 1975, namely, Mirza Javed Beg v. The State PLD 1975 Karachi 628 and Shahzad Hussain v. The State PLD 1980 Lahore 54 and some under the Ordinance, namely, Abdul Majid v. The Judge Special Court (Offences in Banks) Lahore 1985 P Cr. LJ 890, Altaf Hussain v. The State PLD 1985 Lahore 10, Muhammad Moosa v. The State 1986 PCr LJ 578, Syed Zeeshan Akhtar Zaidi v. The State 1988 P Cr. L J 843, Habib Bank Ltd. v. The State PLD 1988 Karachi 49, Sajawal Sarwar v. The State 1988 P Cr. L.J 1558 and Nifasat Ali Khan v. The State PLD 1989 Karachi 198 have also been examined.
12. The question before this Court is whether the High Court can release an accused on bail pending his trial, where the same has been refused by the Special Court, and whether bail can be allowed, pending the determination of his appeal, where such an accused has been convicted by the Special Court under the Ordinance.
13. Before answering these questions it is necessary to clear up certain matters which are relevant and may be disposed of first. First, what is the position of the High Court and the Court of Session regarding the powers conferred by sections 496, 497 and 498 of the Code. Second, what is the rule or principle governing the ouster of a power generally available to a superior Court by a provision contained in a special law. Third, whether the Special Court constituted under the Ordinance is a Court or a judicial tribunal.
14. With regard to the powers of the High Court and the Court of Session vis-a-vis sections 496, 497 and 498 of the Code, the principle laid down by this Court in Muhammad Ayub's case (supra) requires recapitulation. According to the judgment of S.A. Rehman, J., which is the leading judgment and was concurred by Cornelius, C.J., and Fazl-e-Akbar J, and which therefore constitutes the majority judgment, the place of section 498 of the Code and its interaction with sections 496 and 497 have been dealt with in the following words:- "The word `appears' in sections 496 and 497 need not be construed to include voluntary appearance, even in circumstances of grave apprehension of arrest. This word may be taken to have been used in sections 496 and 497, in the same sense as in section 242 or 252 of the Code, which obviously contemplate appearance in answer to a process issued by a Court. This interpretation will have the merit of saving section 498 in its own right. The position that emerges then would be that under sections 496 and 497, Criminal Procedure Code, the Court can bail out a person only if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the police, or by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested. Section 498, however, would be called in aid before the Court of Session and the High Court, even where the Court is not seized directly of the proceedings in question Viand where no actual arrest has been made so far but anticipatory bail is asked for, e.g. Where the case is still at a stage of investigation by the police or is pending in a subordinate Court. The power to grant such anticipatory bail would thus be confined to the High Court and the Court of Session and other Courts would be excluded from its scope. This interpretation would seem to be consistent with the use of general expressions like `in any case' and 'any person' in section 498. The High Court or Court of Session would also of course have concurrent as well as revisional powers, in respect of orders by the police or the subordinate magistracy, in the matter of bail, under section 498 read with sections 496 and 497."
The learned Judge further stated:-- "In other respects, however, section 498 occupies the position of a supplementary provision in so far as it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts. And the police and enables these Courts to exercise the power of anticipatory bail, in suitable cases."
The words "a Court" in section 497 of the Code do not mean a trial Court. If the intention had been to restrict the section to the trial Court, the words "trial Court" would have been used. It is only because of the words "a Court" that the Duty Judge or Magistrate grants bail to an accused, even though he is not the trial Court, when the accused is produced before him for remand. It is thus clear that under section 497 of the Code the jurisdiction of the High Court and the Court of Session is attracted where there has been an actual arrest inviting its jurisdiction or any of these Courts are seized of the proceedings directly and that section 498 of the Code is attracted where no actual arrest has been made, but anticipatory bail is prayed for, irrespective of the fact whether these Courts are seized of the proceedings or not, which power, however, is not available to the subordinate , Courts.
15. With regard to the question of ouster of power, it is a recognized principle of law that a claim in respect of the ouster of power of the High Court in respect of any matter or subject available to it under the Codes of Civil or Criminal Procedure cannot be lightly accepted, unless there is a clear, definite and positive provision ousting the jurisdiction. Express words or clear intendment or necessary implication are required to take away the jurisdiction of a High Court or any superior Court. In Zahoor Elahi v. The State (PLD 1977 SC 273), this Court has held that it is a well-settled principle relating to the construction of statutes that the exclusion of jurisdiction of superior Courts is not to be readily inferred, that there is a strong leaning against any such exclusion, that this rule is deep seated and if it is to be overturned, it must ordinarily be done by a clear, definite or positive provision, not left to mere implication. In this case the Supreme Court was considering the effect of section 13(1) of the Defence of Pakistan Ordinance of 1971, and rule 210 of the Rules framed there under and held that the High Court's jurisdiction to admit to bail persons under section 498 of the Code was not ousted. There are other cases as well, which need not be referred; it being sufficient to state the principle.
16. The next question is whether the Special Court is a Court or a judicial tribunal. The Special Court is presided by a person who has been or is, or is qualified for appointment as, a Judge of the High Court. It has exclusive jurisdiction to try scheduled offences referred to in the Ordinance. It follows the procedure prescribed by the Code for the trial of cases by Magistrates and has all the powers conferred by the Code on a Court of Session exercising original jurisdiction. Its sentences are subject to appeal in the High Court. It is obliged to decide cases in a judicial manner. The accused is entitled to answer the charge, to cross-examine witnesses produced against him, to explain important items of evidence found against him and to produce evidence in defence, apart from giving his own evidence in defence. The Special Court has thus all the attributes of a Court. In Altaf Hussain's case (supra) the High Court has treated the Special Court constituted under the Ordinance as a Court, which appears to be the correct position. This Court in Abdul Hafeez v. State (PLD 1981 SC 352) also treated the Drugs Court, constituted under the Drugs Act, XXXI of 1976, as a Court and as one inferior to the High Court under section 435 of the Code; the said Court being constituted almost on similar lines and having similar jurisdiction as the Special Court under the Ordinance.
17. I would now direct my attention to the case in hand. Under section 1(2) of the Code, the said Code extends to the whole of Pakistan; but in the absence of any specific provision to the contrary, nothing therein contained can affect any special or local law which is in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law which is presently in force. The Ordinance being a special law conferring special power and jurisdiction on the Special Court and providing a special form of procedure relating to the trial of scheduled offences, the Code will not affect any provision dealing with such special power, jurisdiction or procedure. Under section 5(1) of the Code all offences under the Pakistan Penal Code have to be investigated, infrared into, tried and otherwise dealt with according to the provisions contained in the Code. Under section 5(2) of the Code, all offences under any other law can be investigated, inquired into tired and otherwise dealt with according to the provisions of the Code, but subject to any enactment for the time being in force regulating the manner, or place of investigation, inquiring into, trying or c4lierwise dealing with such offences. Section 12 of the Ordinance states that the provisions of this Ordinance shall have effect, notwithstanding anything contained in the Code or any other law for the time being in force. Section 5(6) of the Ordinance clearly states that an accused shall not be released on bail by the Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a 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. Section 5(7) gives certain directions to the Special Court when fixing the amount of bail. Section 5(6) is couched in negative language, namely, that in releasing a person on bail, the Special Court, or the other Court, shall not do so if there appear reasonable grounds for believing that he has been guilty of a scheduled offence and that before passing any such order of release the prosecution shall have been given notice of the date of hearing to show cause. Section 5(7) states that in fixing the amount of bond, it will adhere to the principles laid down therein. Section 497(1) of the Code directs that a person accused of a non-bailable offence, if he is arrested or detained without warrant by an officer incharge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. The first proviso to subsection (1) of section 497 of the Code makes an exception to the rule contained in subsection (1) in respect of women and persons under the age of sixteen years or those who are sick or infirm. The second proviso to sub--section (1) contains a direction that bail shall not be granted unless the prosecution has been given notice to show cause why the accused should not be released. The third proviso to subsection (1) again makes an exception to the rule contained in subsection (1) in respect of persons who have been 1n custody for extended periods of time and whose trials have not concluded. The fourth proviso to subsection (1) makes an exception to the rule stated in the third proviso by rendering it inapplicable in respect of previous convicts, hardened criminals, etc. The first part of section 498 of the Code lays down that the amount of the bond to be executed under Chapter XXXIX should be fixed with regard to the circumstances of the case and should not be excessive, whereas the second part states that the High Court or the Court of Session may, in any case) whether there be an appeal on conviction or not, direct that any person be admitted to bail or that a bail required by a police officer or Magistrate be reduced. Under section 497 of the Code bail can be given in non-bailable cases subject to the discretion of the Court, where the punishment for the offence is not death, imprisonment for life or imprisonment for ten years, but where the punishment for the offence is death, imprisonment for life or imprisonment for ten years, the discretion is not free but fettered with the condition that the Court must find that there appear no reasonable grounds for believing that he is guilty of an offence inviting any of such heavy punishments. In short, the difference appearing in section 5(6) of the Ordinance is the fetter on the Special Court's discretion to first find as a fact that there appear no reasonable grounds for believing that the accused is guilty of a scheduled offence, even where the punishment is not severe, such as death, imprisonment for life or imprisonment for ten years; leaving the condition contained in the second proviso to subsection (1) of section 497 of the Code intact. The difference appearing in section 5(7) is the severity of the amount of the bond, which could be somewhat high.
The words "or by any other Court appearing in section 5(6) of the Ordinance obviously imply that the power of I granting bail available with the other Courts, such as the High Court, is not excluded.
It is section 497 of the Code which enables the Magistrate, the Sessions Court and the High Court to grant bail during the pendency of an investigation, inquiry or trial. Put for this provision, the Special Court would find some difficulty in granting bail during investigation. The Special Court also does not take cognizance of a scheduled offence till a police challan or a private complaint is filed before it. Even otherwise, according to the rule stated in Muhammad Ayub's case (supra). The power of the High Court and -the Court of Session to grant bail where there has been an actual arrest attracting their jurisdiction or where they are seized of the proceedings directly, is very much there in section 497 of the Code. The words "any other Court" in subsection (6) of section 5 of the Ordinance would, therefore, include the High Court, where it desires to grant bail to an accused charged with a scheduled offence, who is under detention. If the law-maker had intended to give jurisdiction of granting bail only to the Special Court and had intended to exclude the jurisdiction of other Courts, he would have clearly mentioned that no Court including the High Court or the Supreme Court would have jurisdiction to allow bail in respect of any scheduled offence. It may also be mentioned at this stage that section 497 of the Code, which is the basic section, has not been included in section 10 of the Ordinance which further affirms the view that the law-maker did not intend to restrict the jurisdiction of bail with the Special Court alone. Still further, under subsection (7) of section 4 of the Ordinance, where cases previously pending with other Courts have been transferred to the Special Court for trial, bails granted to accused persons by the Courts which tried the cases before the transfer, automatically stand cancelled, but bails granted by other Courts, such as the High Court or the Court of Session, do not stand cancelled. Sections 4 (7) and 5(6) of the Ordinance are not reconcilable with the complete ouster of everything and anything contained in the Code. This further affirms the view that the intention of the law-maker was not to restrict the jurisdiction of bail with the Special Court alone. The inference is therefore clear that section 12 of the Ordinance protects the provisions of the Ordinance, to the extent that they clash or come in conflict with the provisions of the Code or any other law; where they do not, the provisions of the Code may in an appropriate case prevail.
18. It is, therefore, clear that section 5(6) of the Ordinance does not completely oust the applicability of section 497 of the Code in respect of bails and though the rule of subsection (1) of section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same subsection have been introduced in subsection (6) of section 5 of the Ordinance, which is couched in negative language, no express or implied ouster of the remaining provisions of section 497 of the Code call be spelt out from sub-section (6) of section 5 of the Ordinance.
19. However, the question whether the provisions of the first, third and' fourth provisos to subsection
(1) of section 497 of the Code can be held to be available to the Special Court or the High Court, requires examination. As stated earlier, section 5(6) of the Ordinance is couched in negative language Crates on Statute Law, 5th Ed., page 243, states: "If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings."
Section 5(6) of the Ordinance clearly states that an accused shall not be released if there appear reasonable grounds for believing that he has been guilty of a scheduled offence. The provisions of this section have effect, notwithstanding anything contained in the Code. The first and third provisos to subsection (1) of section 497 of the Code, which create exceptions to the rule contained in that subsection, cannot be read into subsection (6) of section 5 of the Ordinance. I Where the law-maker wanted to provide an exception or departure to the rule contained in section 5(6) of the Ordinance, he did so by adding such words akin to the second proviso to subsection (1) of section 497 of the Code. Where the law-maker did not desire to provide further exceptions to the rule, such as those akin to the first and the third provisos to the same subsection, he did not add I specific words similar to those provisos in subsection (6) of section 5. The provisions of the first proviso to subsection (1) of section 497 of the Code would therefore be deemed to be clearly not available to the Special Court or the High Court when dealing with the bail of a person accused of a scheduled offence under the Ordinance. The position of the third proviso to subsection (1) of section 497 of the Code is somewhat nebulous. Though its provisions provide an exception to the rule contained in subsection (1) of section 497, it is founded in public policy, namely, that an accused shall not be made to suffer for the long', delay arising out of the commencement of his trial, unless the same has been li occasioned by his own conduct, and assuming that the same is also not available, the possibility of its application through section 561-A of the Code to prevent an abuse of the process of the Court or otherwise to secure the ends of justice, cannot be totally excluded. In a fair case it may be availed by the High Court in exercise of its inherent powers. The provisions of the fourth proviso to subsection (1) of section 497 of the Code being itself an exception to the rule contained in the third proviso does not create an exception to the principle laid down in subsection (6) of section 5 of the Ordinance and would therefore be available to the High Court, if the third proviso to subsection (1) of section 497 of the Code is treated as applicable. Therefore, whilst the provisions of the first and third provisos to subsection (1) of section 497 of the Code may be treated as not available to the Special Court or the High Court, such a situation would not apply to subsections (2) to (5) of section 497 of the Code, as they do not affect the rule stated in subsection (6) of section 5 of the Ordinance. These provisions would not stand excluded, whether expressly or by necessary intendment or implication. In the final analysis, it is not possible to subscribe to the view that section 5(6) of the Ordinance constitutes a complete Code for the grant of bail to persons accused of offences mentioned in the Schedule to the exclusion of all provisions in the Code relating to the same subject.
20. The next question that calls for determination is the position of section 498 of the Code. Since this section is included in section 10 of the Ordinance, it would be worthwhile to discuss this question with the connected question, namely, whether the High Court can release a person who has been convicted and sentenced by the Special Court on bail, pending the final determination of his appeal.
21. In order to understand section 10 of the Ordinance, it is necessary to refer to a provision of an earlier Special Criminal Courts Ordinance, II of 1942 (as amended in 1943), which Ordinance provided the base for the drafting of the Suppression of Terrorists Activities (Special Courts)
Ordinance, XVIII of 1974, and thereafter the present Suppression of Terrorists Activities (Special Courts) Act, XV of 1975. Section 26 of the Special Criminal Courts Ordinance, 1942, read as follows:- "26. Exclusion of interference of other Courts.--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."
The Special Criminal Courts Ordinance, II of 1942 provided three categories of Special Courts: namely, Special Judges, Special Magistrates and Summary Courts. Section 8 of Ordinance II of 1942 provided for a review from the sentence passed by a Special Judge, which lay to a Judge of the High Court nominated by the Provincial Government. However, sections 13 and 19 of the said Ordinance provided for appeals against sentences passed by Special Magistrates and Summary Courts in the manner prescribed in those sections. The second part of section 7(1) of the Suppression of Terrorists Activities (Special Courts) Act, XV of 1975, has been copied from section 26, as reproduced-above. Section 10 (1) of the Ordinance is an exact reproduction of section 7(1) of Act XV of 1975, it is obvious that the second part of section 10(1) of the Ordinance is, to some extent, copied from section 26 of Ordinance 11 of 1942. The first part of section 10(1) of the Ordinance, therefore, contains the provision which provides the appeal against the sentence of a Special Court to the High Court and the remaining part of the subsection contains provisions which exclude interference of other Courts. As the heading of the earlier section 26 of Ordinance II of 1942 clearly states "Exclusion of interference of other Courts," it is clear that what is intended by the remaining part of section 10(1) of the Ordinance is the exclusion of interference of other Courts to the extent as provided therein. Thus, the present heading of section 10 of the Ordinance which reads "Appeals from sentences passed by Special Court, etc." would only cover the first part of subsection (1) and the whole of subsections (2) and (3), but not the remaining part of subsection
(1) which clearly deals with exclusion of interference of other Courts. I would repeat the words "other Courts" out of the heading of section 26 of Ordinance II of 1942 to show that the words "no Court" appearing in subsection (1) of section 10 are used in the context of other Courts, i.e. In contradistinction to the Special Court, which is the creature of the Ordinance.
22. Before analysing subsection (1) of section 10 in some depth it is necessary to first examine the judgment of a Division Bench of the erstwhile High Court of Sindh and Baluchistan reported as Mirza Javed Beg's case (supra) where the learned Judges treated the words "High Court" as appearing in the first part of subsection (1) of section 10 of the Ordinance as specifically indicating the Division Bench of the High Court hearing the appeal and the words "no other Court" as appearing in the remaining part of the same sub-section as covering the High Court, but not the appellate Court Le the Division Bench. By this process, the powers of the High Court under section 426 of the Code to suspend the sentence or release a convict on bail pending the final determination of his appeal was treated as excluded, but the same power available with the Division Bench of the High Court, as the appellate Court, was treated as intact and available. This view was later dissented by another Division Bench of the Karachi High Court in the case of Syed Zeeshan Akhtar Zaidi (supra). The later view appears to be correct. It is not possible to attribute to the High Court as envisaged in section 10 of the Ordinance two personalities, namely, the Division Bench of the High Court, as the Court of appeal, in relation to the first part of the wording of subsection (1) and the High Court in general, as opposed to the Division Bench, in respect of the remaining part of the wording of the said subsection.
23. I would now revert to subsection (1) of section 10 of the Ordinance. The first part states "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". This clearly gives the person sentenced by the Special Court a right of appeal to the High Court within whose jurisdiction the sentence has been passed. It may be mentioned that a right of appeal against acquittal is not provided here, as in section 7 of the Suppression of Terrorists Activities (Special Courts) Act, 1975. This right, is therefore, excluded.
The words "but save as aforesaid" separate the first part of this subsection from the second part.
These words prevent the powers of the High Court, as the appellate Court, from being curtailed by anything said in the second part. The second part of the subsection relates to the exclusion of jurisdiction of the other Courts, Le of Courts other than the Special Court. This part states that notwithstanding the provisions of the Code or any other law for the time being in force or of anything having the force of law by whatever authority made or done, no Court:-
(i) shall have authority to revise such sentence, or
(ii) shall have authority 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
(iii) shall have jurisdiction of any kind in respect of any proceedings of a Special Court.
Notwithstanding the provisions of the Code, no Court shall have authority to revise such sentence.
The power of revision obviously would be with a Court other than the Special Court and having a status higher than the Special Court. Since the Special Court has all the powers conferred by the Code on a Court of Session exercising original jurisdiction, the only Court capable of exercising revisional power would, therefore, be the High Court. Thus, the power of the High Court under section 439 of the Code to revise the sentence would appear to be expressly excluded. Further, notwithstanding the provisions of the Code, no Court shall have authority 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.
Since the Special Court is vested with the powers of a Court of Session, the only other superior Courts which would have authority to transfer any case from a Special Court would appear to be a High Court under section 526 of the Code. This power also expressly stands excluded. The power under section 426 of the Code to suspend a sentence and release a convict on bail pending the determination of his appeal and the power under section 491 of the Code to issue directions of the nature of a habeas corpus, all being powers vested in and exercisable by the High Court, and the power under section 498 of the Code to grant pre-arrest bail being power vested in the High Court and the Court of Session, all stand expressly excluded. Still further, notwithstanding the provisions of the Code, no Court shall have jurisdiction of any kind in respect of any proceedings of a Special Court. I Therefore, notwithstanding the provisions of the Code, no Court shall have jurisdiction in respect of such authority or powers as arc conferred on the Special Court by the Ordinance in respect of proceedings before itself. The word "proceedings", as held in Zahur Elahi v. The State (PLD 1977 SC 273), covers all matters connected with, or ancillary to the trial of a person charged before the Court i.e. Proceedings which are pending before the Court. Thus, in respect of any special jurisdiction or power conferred or any special form of procedure prescribed by the Ordinance, no Court shall have jurisdiction to interfere or intermeddle in any way with such jurisdiction, power or procedure during the pendency of the proceedings before the Special Court.
In short, the words "no Court" appearing in the second part of sub-section (1) of section 10 of tile Ordinance almost exclusively cover the High Court. Since the ouster provided ill this subsection is express, it will prevail. It is, therefore, clear that the power of the High Court and the. Court of Session to grant pre-arrest bail to an accused pending his trial and the power of the High Court to suspend a sentence and release a person who has been convicted and sentenced by the Special Court on bail, pending his appeal, stand excluded.
24. The power of the Special Court to grant pre-arrest bail to a person accused of a scheduled offence under section 498 of the Code calls for special attention. In accordance with the rule laid down by this Court in Muhammad Ayub's case (supra), as stated in para 14 above, this power is available both with the Court of Session and the High Court when they are seized of the case directly. Under section 6(1) of the Ordinance, the Special Court has all the powers conferred by the Code on a Court of Session exercising original jurisdiction. The power of the Special Court therefore to grant anticipatory bail would appear to be preserved and can be treated as ancillary and subsidiary to the power available under subsection (6) of section 5; in the same way as section 498 is treated as "ancillary and subsidiary" to section 497 of the Code. As stated earlier in para 21 above, the words "no Court" appearing in subsection (1) of section 10 of the Ordinance refer to all Courts other than the Special Court. Therefore, the power of the Special Court to grant anticipatory bail to accused persons whose cases are pending before itself does not stand excluded by subsection (1) of section 10 of the Ordinance.
25. One may now turn to certain ancillary matters, which also require attention. What is the position of section 561-A of the. Code in respect of the Ordinance. In Mian Munir Ahmad v. The State 1985 SCMR 257 this Court has held that the powers of the High Court under section 561-A of the Code can be exercised in respect of proceedings of "any Court", unlike the powers available under section 435 which have to be exercised in respect of proceedings of Criminal Courts "inferior" to it.
Section 561-A is not included in subsection (1) of section 10 of the Ordinance. If its application is not impliedly excluded, it can be appropriately applied to cases being dealt with under the Ordinance.
In Nifasat Ali Khan's case (supra) the Karachi High Court exercised its inherent powers under section 561-A of the Code in dealing with an appeal against an order passed under section 515 of the Code, which otherwise could not be filed in the forum contemplated under section 515 of the Code and no other forum was available. This was a case under the Ordinance. In Sajawal Sarwar's case (supra) the High Court under section 561-A of the Code allowed bail to an approver in T respect of a case instituted under the Ordinance, notwithstanding the bar contained in section 337(3) of the Code, to avoid abuse of the process of the Court in view of the great delay that had occurred in the commencement of the trial. In Shahzad Hussain's case (supra) the High Court acting under sections 439 and 561-A of the Code restored the bail of an accused that had been cancelled by the Special Court without giving sufficient advance notice to him to show cause or opportunity to call his counsel to argue the case. Under section 561-A the High Court could be tempted, in a case under the Ordinance to consider the question of grant of bail to an accused on the ground contained in the third proviso to subsection (1) of section 497 of the Code, in view of the dicta laid down by this Court in Riasat Ali v Ghulam Muhammad PLD 1968 SC 353 that delay in' prosecuting a case amounts to an abuse of the process of Court and is a valid ground to enlarge a person on bail. Since this matter is not before us, it can be left for decision to a future date when such a matter comes up directly before us.
26. Since the High Court's power to suspend the sentence or release a convict on bail pending his appeal stands expressly excluded by section 10(1) of the Ordinance, can such a relief be granted by the High Court under section 561--A of the Code or under its inherent powers? Under section 561-A of the Code, the High Court has inherent powers to intercede to prevent abuse of process of any Court or otherwise to secure the ends of justice, but it cannot intrude to displace the effect of any law or statutory right which is clear and unambiguous and does not call for any collateral interference. See Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18 = 81 IA 203). Power under section 561-A of the Code can only be invoked in extraordinary cases where no other procedure or remedy is available or is provided by the Code. If any authority is required for this view, Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) and Muhammad Samiullah Khan v. State (PLD 1963 SC 237) may be referred. Section 561-A cannot be invoked to bring about a result in respect of which there is an express prohibition or express provision provided in the Code or any other law.
Inherent powers are regarded as auxiliary or ancillary to make effective orders that can legally be passed and not those that legally cannot be passed. In this respect Mahmud Ali Qasuri v. State PLD 1963 SC 478 may be referred. In Lala Jai Ram v. Emperor (72 IA. 120= AIR 1945 P.C. 94) the question was whether the High Court could release convicts on bail whose appeals it had dismissed, pending the final disposal of their appeal by the Privy Council; the High Court having refused such an application. The Privy Council held that Chapter XXXIX together with section 426 of the Code contained a complete and exhaustive statement of the powers of a High Court to grant bail to a person convicted of an offence, that they excluded the existence of any additional inherent power under section 561-A with the High Court relating to the same subject, that section 561-A of the Code conferred no powers and that it merely safeguarded all existing inherent powers possessed by a High Court necessary to secure the ends of justice. Thus, the High Court basically has no power under section 561-A of the Code to release a convict on bail pending the disposal of his appeal under the Ordinance, m view of the clear bar contained in section 10(1) of the Ordinance.
However, in an exceptional case such as where there is complete want of jurisdiction or the evidence on the record does not make out any case for conviction, the High Court would still be barred from releasing the appellant on bail pending the disposal of his appeal, is a matter which I would keep open, to be examined at the proper time when such a case is before us.
27. The power of an appellate authority to grant interim relief by way of suspension or modification of the impugned order, where such a power has not expressly been provided, has been recognised by this Court in Commissioner, Khairpur Division v. Ali her Sarki (PLD 1971 SC 242) and the implied power of an appellate authority to grant relief which is ancillary or incidental to the appeal during the pendency of the appeal, has also been recognised in Sindh Employees' Social Security Institution v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32. But these are cases where the statute did not provide an express bar. Whether bail can be granted to a person convicted under the Ordinance on the basis of such an implied power, would appear doubtful in view of the clear bar W contained in section 10(1) of the Ordinance. In Zeeshan Akhtar's case (supra), where an application under sections 561-A and 426 of the Code had been filed before the Karachi High Court for securing bail of a person convicted by a Special Court under the Ordinance, the Court, whilst referring to the implied power of the appellate Court, as spelt out from these two cases, held that such an order could not be passed as a matter of course, in view of the bar contained in section 10(1), but the Court held that in a fit and very exceptional case it could be attempted. Whether it should be attempted or it would not be more appropriate to dispose of the main appeal at the very earliest, is an open question. However, without prejudice to the rule and without excluding the possibility that in an exceptional case the High Court may feel compelled to intercede in the exercise of this rule, I would leave the matter open, so that when such an order comes before us, it can be properly examined in the light of its own unusual or peculiar facts and be tested on the touchstone of the law applicable.
28. The supervisory powers of the High Court under sections 435 and 439 of the Code also require examination, in respect of cases under the Ordinance. These powers are available for the purposes of examining proceedings of inferior Criminal Courts. As held in Para 16 above, the Special Court is a Court inferior to the High Court. The power of the High Court to check the correctness, legality or propriety of any sentence recorded or passed by the Special Court stands excluded, by virtue of subsection (1) of section 10 of the Ordinance. However, the powers under sections 435 and 439 of the Code to check the correctness, legality or propriety of any other finding or order recorded or passed and as to the regularity of any proceedings of the Special Court, would not stand excluded.
In Shahzad Hussain v. The State (PLD 1980 Lahore 54) the Lahore High Court held that its powers under section 439, other than to revise sentences, were intact in respect of cases under the Ordinance. In Habib Bank Ltd---s case (supra) the Karachi High Court held that neither an appeal against an acquittal nor a revision petition was competent against a judgment of acquittal passed by the Special Court under the Ordinance. Strictly, a sentence follows a finding of conviction. Where an acquittal is recorded, there is no question of any sentence. An acquittal is a finding and not a sentence. Section 10(1) of the Ordinance provides an appeal against a sentence recorded by a Special Court and bars a revision against the same. Where an appeal against an acquittal is not provided, the question still arises whether a revision is not incompetent. Just because an appeal against the finding of acquittal is not provided by section 10 of the Ordinance, the question whether a revision against such a finding is barred, cannot be foreclosed. However, I would also leave this question open for examination for an appropriate occasion.
29. The upshot of the above discussion is that the High Court has power to grant bail to an accused during the pendency of the investigation of his case or trial in respect of a case registered against him under the Ordinance. However, where he has been convicted under the Ordinance, the Division Bench of the High Court, as a Court of appeal, has no power to suspend his sentence or release him on bail pending the final determination of his appeal. This is, however, subject to the rider contained in para 27 above, which I have left as an open question, to be determined when such a case comes before us.
30. I would now turn to Criminal Appeal, (Cr. A. No.48/1985). There is no doubt that after Khalid Farooq respondent secured pre-arrest bail from the Sessions Court on 18-2-1981, some time thereafter his case was entrusted to the Martial Law Court, where after he was arrested on 24-11- 1982. The earlier pre---arrest bail granted to him therefore lost its validity. With the enforcement of the Ordinance, the case was transferred to the Special Court for trial. Khalid Farooq respondent himself applied for bail before the Special Court, as he was in judicial custody. The view of the High Court that the earlier order of pre-arrest bail remained effective, cannot be accepted. Further, the view of the High Court that the Special Court wrongly cancelled the respondent's bail is incorrect as no such g order was passed. Still further the learned Judges of the High Court erred in B holding that they were not required to discuss the merits of his case. This was necessary in view of section 5(6) of the Ordinance. The order of the High Court therefore deserves to be set aside so that the said petition can be remanded for disposal afresh in accordance with law.
31. As regards Cr. A. No.49 of 1985, the order of the learned Judges of the High Court refusing to suspend the sentence of Muhammad Aslam appellant and to release him on bail, appears to be legal and correct. No unusual or exceptional, circumstances exist in the case which may have called for any departure to be made in this case on the basis of any implied or inherent power vesting in the High Court.
32. For the foregoing reasons, Criminal Appeal (Cr. A. No.48 of 1985) preferred by the Allied Bank of Pakistan Ltd., appellant is accepted. The order of the High Court holding that Khalid Farooq respondent continues to remain on bail, is set aside. The respondent's petition for bail is remanded to the High Court for fresh disposal, in accordance with law. The respondent shall appear before the High Court on 19-1-1991 uptill which date he shall not be arrested.
Criminal Appeal (Cr. A. No.49 of 1985) is dismissed.
…and 8 more citing cases