1. ' NASIM HASAN SHAH, J.---This appeal, by leave of this Court, is directed against the order dated 1142-1991 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No,2 of 1991 in Criminal Appeal No,882 of 1990.
2. ' The facts which form the background briefly stated are that the appellant, along with her husband and nine others, was tried by Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. She has been sentenced to seven years' R.I. Probably under section 365- A of the Pakistan Penal Code though no provision of law is mentioned in the order of the learned trial Court.
3. ' The prosecution case was that the accused had abducted one Sh. Aftab Ahmad in order to extort ransom and had released him only after the ransom amount of Rs,54,00,000 had been extorted from him.
4. ' To question her conviction the appellant filed an appeal in the Lahore High Court, Lahore. She also submitted an application on 64-1991 under section 426, Cr.P.C. Praying for suspension of sentence during pendency of the appeal and for grant of bail.
5. ' The bail application (Cr.Misc.No,2/B/9l) was dismissed by the learned High Court on 11-2-1991 mainly for lack of jurisdiction. Hence this appeal by leave of this Court.
6. ' The High Court holding that it had no jurisdiction to suspend the sentence of the appellant during the pendency of the appeal relied on this Court's judgment in Allied Bank of Pakistan Limited v.Khalid Farooq (1991 SCMR 599) wherein it was, inter alia, observed:- "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 Sher 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 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."
7. ' The conclusion was stated in the following words: "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."
8. ' The rider ,in para. 27 related to the power possessed by the High Court, if any, to grant relief in a fit and very exceptional case under section 561-A, Cr.P.C. For securing the ends of justice.
9. ' Section 10(1) mentioned in the above observations of this Court refers to section 10(1) of the "Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), which is in part materia with section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 which reads as follows: "7(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 (and the Provincial Government may direct any person appointed by it for the purpose to present an appeal to the High Court from an order of acquittal passed by a Special Court;) but save as aforesaid 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 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 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court."
10. (Underlining is ours).
11. ' However, Mr. Ljaz Hussain Batalvi, learned counsel for the appellant, drew our attention to subsection (2) of section 7 which lays down : "(2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence (or order of acquittal, as the case may be), and shall be heard and decided by a Bench of not less than two Judges of the High Court within three months."
12. (Underlining is ours).
13. ' And submits that as the appeal has not been heard and decided within three months, the bar contained in subsection (1) of section 7 to suspend the sentence under section 426, Cr. P.C. Or to grant bail under section 498, Cr.P.C. Ceases to be operative, as the reason for taking away the power to suspend the sentence or grant bail during the pendency of the appeal is that under the terms of this special law itself the appeal must be heard and decided very speedily i,e, within the period of three months and in so far as in this case the appeal has not so far been heard and decided, although it was filed more than 3 months ago. In this connection, reliance is placed on the maxim: "Cessante ratione legis cessat ipsa lex"
14. (Co.Ltt.70 b.)
15. ' Which means "reason is the soul of law, and when the reason of any particular law ceases, so does the law itself'.
16. This plea was not raised before the High Court and indeed could not be raised as the period of 3 months had not expired when the bail matter was taken up and normally this Court does not itself take up for consideration new pleas which were not raised and considered by the High Court.
17. Furthermore, in view of the order we propose to make in this case, it is neither necessary to go into the question of the relevancy of this legal maxim or its applicability in the facts and circumstances of this case.
18. ' The relevant facts in this connection are that the appellant, in this case, was charged as follows: "I, Muhammad Aslam Shami, Judge, Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act XV of 1975, hereby charge you that you Neelam Mawaz w/o Javed Mawaz had received a sum of Rs,5,00,000 (Rs,Five Lacs only) and a vehicle No,JM205 Nissan Patrol from your husband Major (Retd.) Javed Mawaz knowingly and dishonestly being extorted money of this case and retained the vehicle with you till its recovery and thereby committed an offence punishable u/s 365-A, P.P.C. Which is triable by this Court."
19. And after recording evidence in the case, the only circumstances, put to the appellant, which appeared in evidence against her and in regard to which her explanation under section 342, Cr.
20. P.C. Was sought are contained in 0.2 namely:-- "Q.2.--It is in evidence that on 17-10-1990 while you were in custody you led to the recovery of vehicle Nissan Patrol Registration No, 205(JM), which was witnessed by Muhammad Ashraf and Muhammad Afzal, Head Constables of Anti-Dacoity Staff, Lahore, what you have to say about it?
21. If these were the only incriminating circumstances against the appellant, the same do not appear to come within the purview of section 365-A, P.P.C., which provides: "365-A. Kidnapping or abducting for extorting property, valuable security, etc.- -Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with imprisonment for life and shall also be liable to forfeiture of property."
22. Indeed the offence committed by the appellant, even if the allegations contained in the prosecution case are accepted as correct would appear to fall within the purview of the provisions of section 411 of the P.P.C. Which makes receiving of stolen property (which includes receiving of money obtained by extortion) punishable with imprisonment for a period not exceeding three years and not an offence under section 365-A, P.P.C.
23. ' Now the jurisdiction of the Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975, under section 4 thereof extends only to the trial of offences which are specified in the Schedule. Subsection (2) of section 4 makes this position quite clear as it is provided herein that: "4. Jurisdiction of Special Court.- - (1)
(2) If, in the course of a trial before the 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."
24. ' A reference to the Schedule reveals that the Special Court can try offences punishable under any of the following sections of the P.P.C., namely:-- "Sections 121, 121-A, 122, 123, 123-A, 124-A, 365-A, 400, 402-A, 402-C and 431."
25. ' The only other item relevant in the Schedule appears to be sub-clause (ii) of clause (h) which states: "(h)(ii). Any attempt or conspiracy to commit, or any abetment of, any of the aforesaid offences."
26. There is, therefore, prima facie force in the contention that the appellant having been tried for an offence which was not a scheduled offence, her conviction under it would be coram non judice and, in the circumstances, the bar of section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, would not apply.
27. ' However, if we ourselves give effect to this argument, it would tantamount to this Court deciding the appeal, which is still pending before the High Court. In these circumstances, we think it more appropriate to send back the case to the High Court for deciding the matter of bail/appeal, in the first instance.
28. ' The upshot is that this appeal is accepted. The impugned order of the High Court dated 11-2-1991 is set aside. The High Court will take up this matter on priority basis and decide the same within one week of the receipt of this order from this Court.