' The petitioner is involved, alongwith certain other persons, in a case registered as per F. I. R. No. 216/1976 at the Railway Police Station, Lahore, on 22-7-1976, under sections 29 and 59 of the Press and Publications Ordinance )00C/1963, section 16 of the West Pakistan Maintenance of Public Order Ordinance XXXI/1960, section 17 of Act 111/1955 (this description in the copy of the P. I. R. Placed on record is ambiguous and does not appear to be quite legible) and rule 49 of the Defence of Pakistan Rules for allegedly indulging in objectionable activities and slogans etc. (as detailed in the F. I. R.) at platform No. 2 of the Lahore Railway Station, when, on the aforesaid date, an Indian train arrived or was to arrive in Lahore, as a result of the opening of the railway traffic between India and Pakistan. The co-accused of the petitioner were arrested and a challan against them was filed and they were later released on bail by the Special Tribunal, Lahore. The petitioner, however, remained fugitive from law and, on 9-8-1976, filed a writ petition bearing No. 2056/1976 seeking a direction to prohibit his arrest, which was dismissed by me in limine on 10-8-19:6, when I passed the following order:- "There stands registered an F. I. R. On 22-7-1976 against the petitioner inter alia under rule 49 of the Defence of Pakistan Rules. There were other accused in that F. I. R. a challan against whom has been submitted to the Special Tribunal who has, according to the petitioner, released those accused on bail. Against the petitioner, it is submitted, that no challan has been filed so far.
However, it nas been mentioned that the police is raiding the house of the petitioner apparently to arrest him. The present petition has been filed in the circumstances berein before mentioned in which it has been alleged that as no challan has been filed against the petitioner, therefore, he is, according to the learned counsel, firstly, not an accused in the case. Secondly, in the alternative, it is being argued that if he is still an accused on account of his name being contained in the F. I. R.
Then 'the very registration of the case is mala fide and without lawful_ authority because the F. I. R.
Does not disclose the commission of any offence under rule 49 of the D. P. R. The offence under rule 49 of the D. P. R., according to the learned counsel, is not cognizable and the police has no authority to arrest the petitioner.
(2) The petitioner has not so far been arrested and probably is evading arrest even if strictly he may not have been declared an absconder as yet. This is evident from challan report (photostat.
Annexure where in the earlier portion it is written Gulzar Beg (petitioner) was whisked away and in the later portion it is mentioned that (URDU TEXT) This also explains as to why no challan against the petitioner Gulzar Beg has so far been filed, because the challan normally is to follow the arrest and not precede the arrest. If examined in this context the present petition does not seem to have been filed in good faith and on the other hand, it is impliedly a petition for bail before arrest in the guise and form of Article 199 of the Constitution. It has been laid down in Ordinance No. XXIX of 1976, that no Court shall take bail of an accused under D. P. R. And obviously Article 199 cannot be utilised for circumventing the law of the land. No doubt this is a petition under Article 199 of the Constitution, but it has to be seen whether any case has been made out for invoking this jurisdiction on the facts and overall circumstances of this case. In my opinion, since an F. I. R.
Against the petitioner duly stands registered and it is not possible for this Court to gift out the evidence, the jurisdiction under Article 199 of the Constitution cannot be invoked at this stage by an absconder of the kind of the petitioner Another factor to be taken note of is that if the other co- accused of the petitioner have been granted bail by the Tribunal, the petitioner would also have been well-advised to surrender and apply for bail in that very Tribunal. If any efforts are being made or his house is being raided to apprehend him, the responsibility in that respect is entirely of the petitioner who has chosen to remain absconder. For all these reasons, the present petition is not entertained and is dismissed in limine."
2. The petitioner thereafter, it is pleaded by him, surrendered before the Civil Lines Police Station, who arrested him and submitted a challan before the tribunal on 17-8-1976. The petitioner applied for bail, but the Tribunal on 19-8-1976 rejected the application observing that as he had been avoiding arrest for a considerable time and was apprehended with difficulty, therefore, from this point of view, his case was distinguishable from the other accused. The petitioner has come up in writ petition again raising certain points to which I will presently attend.
3. The first point argued by the learned counsel was that the case had been registered against his client with a colourable exercise of jurisdiction, mala fide so that the persons who honestly feel that the policies of the Government viz-a-viz agreements with India are prejudicial against the interest of Pakistan as a sovereign State are harassed or intimidated. It is further argued that the case reported in the F. R. (copy Annexure 'B') is totally false. Whether the case is false or correct depends upon the appreciation of the evidence which may be produced before the Tribunal and it is not possible for this Court to do that job here in the course of writ jurisdiction. For my purpose it is enough that the petitioner's name is contained in the F. I. R. Where certain overt acts are attributed to him and the names of the witnesses and the material relevant in the context are all stated in the F. I. R. And now in the challan. The challan has been filed and the petitioner will be in a position to lead his defence with regard to all his pleas on merits or otherwise before the Tribunal and there is no occasion or justification to, in a way, start-the trial of the petitioner here in this Court. As regards the plea of mala fide this again can be taken up and established during the course of trial before the Tribunal in accordance with law. For my purpose it is enough to say that the plea raised in this respect in the writ petition does not fulfil the requirements which are necessary to prove mala fide as laid down in The Federation of Pakistan v. Saeed Ahmad Khan and others (I). It was laid down in that case that 'as has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (2), mala fides must be pleaded with particularity and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and-indefinite allegations, nor should the person alleging mala fides be allowed a-roving enquiry into the files of the Government for the purposes of fishing out-some kind of a case. . . . It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking, the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people". The Supreme Court also referred to its earlier judgment in Lt.-col. Farzand All v. Province of West Pakistan (3), where it was held that. "there is no allegation that any one in particular was ill-disposed towards him, or had any special personal reason for getting rid of him. Nor did he state as to what was the nature of the conspiracy against him or who were the alleged conspirators. A general allegation of hostility against all senior officers from even before partition was not sufficient to establish mala fides of those who were ultimately responsible for the decision to compulsorily retire him. Mala fides have to be alleged with particularity and a mere assertion of a general malice cannot be sufficient for this purpose." Respectfully following the law declared by the Supreme Court, I am of the opinion that a general malice of the kind as alleged in this case that there is a general policy that the persons who honestly feel that the policies of the Government, viz-a-viz agreements with India, are prejudicial against the interest of Pakistan as a sovereign State are to be intimidated or harassed, is too vague and indefinite to be taken serious note of. It is to be pointed out at this stage that the F.
I. R. Against the petitioner was registered at the instance of Abdul Sattar (Inspector) (S.H.O., Railway Police. Lahore) who was present a
(1) PLD 1974 SC 151 (2) PLD 1969 SC 14
(3) PLD 1970 SC 98 the spot and himself witnessed the activities of the petitioner etc. It is not the case of the petitioner that the Inspector had any personal malice or grudge against him and in fact none has been alleged in the petition or argued before me. Similarly there is no other background/history against the petitioner, because, it is his own case as pleaded in para. 1 of the petition that "he has never been implicated in any case throughout his life". In this state, of affairs the plea of mala fides, as raised in this writ petition, has no merit and is hereby rejected. Before parting with this aspect of the matter, I ma point out that of late it has become customary invariably with most of the offendors to allege in a routine fashion a malice pleading that they belong to some opposite-party or that they have been criticising the Government and its policies therefore, the case against them is mala fide.
Such pleas in certai cases are taken either to invoke a sympathy from a Court or create a prejudice against Government established by law. Courts of law should be careful in not falling an easy prey into such tactics of offendors and should not readily accept or encourage such pleas without due care and consideratio keeping in view all the facts and circumstances of each case. Attentio should always be focussed on the facts and material placed on the record of each case and not on a general, vague or customary plea of this nature.
4. The next point argued was that the tribunal could not have taken cognizance of the offence under the Defence of Pakistan Rules except on a report in writing by a 'public servant' as laid down in section 9 of the Defence of Pakistan Ordinance and Rule 209 of the Defence of Rules. He argued that neither the F. I. R. Was given nor was the challan and report submitted by a public servant, therefore, the remand order of the Tribunal was without lawful authority. I told the learned counsel to raise this point before the Tribunal, but he insisted for its adjudication by High Court submitting that, according to him, it was a jurisdictional point and was, as such being pressed by him here. Be that as it may, the contention has no merit. Rule 2(12) of the Defence of Pakistan Rules says that "public servant" includes any public servant as defined in section 21 of th Pakistan Penal Code (XLV of 1860) and any servant of any railway or loca authority or corporation owned wholly or partially by Government". If thi definition is read with section 21 of the P. P. C. Then the police officials who wrote the report and submitted the challan do fall within the aforesaid definition. See Hatimali and another v. The Crown (1) and Sagarmal Agarwala v. Emperor (2), in which police officials were held to be public servants and reports and challans submitted by them were held to be valid under corresponding rule 130 of the Defence of India Rules.
5. Another point raised was that an offence under rule 49 of the Defence of Pakistan Rules was not cognizable by police, and as such, the initial arrest of the petitioner and his present custody in Jail is without lawful authority. It is a repetition of the same plea in another form which has been rejected by me in the earlier paragraph. The F. I. R. Pertains to a number of offences under various laws mentioned above and it has not been shown to me that the police could not have arrested the petitioner for or taken cognizance of those offences. The arrest on the whole being quite authorised, its validity cannot be detracted by mere reference to one of the offences, namely, offence under rule 49 of the Defence of Pakistan Rules. However, section 4(1)(f), section 5(2).
Section 54 and Schedule II of the Cr. P. C. (Act V of 1898) read with the provisions of section 9 of the Defence of Pakistan Ordinance,
(1) AIR 1950 Nag. 38 (2) AIR 1944 Pat. 390 authorise a police officer to arrest, without warrant, a person against whom a reasonable complaint has been made of his having been concerned in an offence for which such arrest can be made (a) in accordance with the "Second Schedule" of the Code of Criminal Procedure or (b) under any law for the time being in force. The Second Schedule under the head "offences against other laws" provides that if any such offence is punishable with imprisonment for three years and upwards but less than 7 years, the police may arrest the armed without warrant. An offence under rule 49 is punishable with imprisonment which may extend to 5 years. The police, therefore, was competent to arrest the accused. This is further to be read with section 23 of the Police Act V of 1861 where it is written that "it shall be the duty of every police officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and pubic nuisuance to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient ground exists; and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinking-shop, gaming-house or other place of resort of loose and disoderly characters." At this stage it may be pointed out that, no doubt, in rule 206 which gives power to arrest with regard to certain offences, rule 49 is not mentioned but this is immaterial, because, rule 206 is intended to make certain offences which were punishable with imprisonment ranging from 6 months to two years, as cognizable, inasmuch as, the police is authorised to arrest an offender thereunder without a warrant. Rule 206 is thus an extending provision and not a provision curtailing powers of the police because it cannot be assumed that whereas otherwise non-cognizable offences punishable with lesser term of imprisonment were being made cognizable, those which were already cognizable and were punishable with higher sentence were being rendered non-cognizable. Offences under rule 49 already being cognizable it was thus not necessary to insert the same in rule 206 which deals with a different subject-matter. It is well- settled that where an enactment provides a special procedure for only some matters, its provisions must apply in regard to those matters and the provisions of the Code of Criminal Procedure will apply for the matters on which the enactment is silent. Proceeding this way, if rule 206 was silent about offences under rule 49, then it means that qua that rule the provisions of the Criminal Procedure Code were to be applied, whereunder if the sentence under a special law was more than three years but less than seven years, then the police could arrest the offender without a warrant. However, as, at the moment, the petitioner is in the custody of the Tribunal who has remanded him to Jail, the point raised no longer remains of any substantial importance so long as the order directing his custody is quite within the scope of the relevant law.
6. It was then submitted that the establishment of a special Tribunal under the Defence of Pakistan Ordinance and Rules was unauthorised as the Constitution of Pakistan did not authorise setting up of such tribunals of exclusive jurisdiction and that even otherwise the establishment of such Tribunals was violative or Article 25 of the Constitution of which dealt with "equality of citizens" and laid down that "(1) All citizens are equal before law and are entitled to equal protection of law. (2)
There shall be no discrimination on the basis of sex alone. (3) Nothing in this article shall prevent the State from making any special provision for the protection of women and children." It was submitted that the establishment of Special Tribunals under the Defence of Pakistan Rules/Ordinance purported to be discriminatory with regard to the offences of the kind to be dealt with thereunder. The contention has no merit. It was laid down in Brig. (Reid.) F. .B. Ali and another v.
The State (t), that trial of persons who committed a particular type of offence or offences by a Special Tribunal did not offend against Article 2e of the Constitution. Similarly, if the Defence of Pakistan Ordinance and the Defence of Pakistan Rules are valid laws as laid down in Malik Muhammad Suleman M. N. A. v. Islamic Republic of Pakistan (2), then establishment of Special Tribunals thereunder does not suffer from any lack of power. It is well known that numerous tribunals in the country are functioning, for example, Authority under the Payment of Wages Act, Industrial Tribunals/Labour Courts, Income-tax Appellate Tribunals etc. Etc. It is not necessary for setting up a Tribunal that there should be a specific sanction in the Constitution for that purpose.
The real test is to see the subject-matter and pith and substance of the relevant law under which a tribunal is established. f that law falls within the competence of the appropriate Legislature then the establishment of Special Tribunals under that law and on those subjects which fall under that law would be a matter well covered by that law and no exception could be taken against their establishment on the score on which it is being advanced before me. Indeed apart from the High Courts or Supreme Court, it will be difficult at the present day to find any Court/Tribunal which does not owe its existence to an Act of the Legislature. Were I to hold that such Acts were ultra vires practically the whole administration of justice in the country would cease to exist. Tne power to make laws, in my opinion, includes the power to enforcing their observance by the creation of Rourts or Tribunals of justice. See Parmeshwar Ahir v. Emperor (3), where it was held that Special Tribunals could be created under the Defence of India (Criminal Amendment) Act IV of 1915, which was an Act corresponding or similar to the present Defence of Pakistan Ordinance. The point raised by the learned counsel has no substance even on the bare wording of the Article 175 (1) of the Constitution, where it is laid down that, "there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law." Clause (2) of this Article states that, "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". This shows that the Constitution does confer power on appropriate Legislature to create and establish Courts of all types including Special Courts or Tribunals and can regulate their jurisdiction by the relevant law. Learned counsel cited no case in support of his plea and nor he referred to any provision of any law, Constitution or any other text.
He just enunciated the proposition but did not try to substantiate or support it in any manner before me. However, I have examined the point in some detail and finding no force therein, the same is hereby repelled.
7. Learned counsel then referred to section 3 of the Defence of Pakistan Ordinance, subsection (1) whereof states that "the Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for ensuring the security, the public safety and interest and the defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, or for
(1) PLD 1975 SC 506 (2) PLD 1976 Lah. 1250
(3) AIR 1918 Pat. 155 maintaining supplies and services essential to the life of the community". Subsection (2) it is laid down that "without prejudice to the generality of the powers conferred by subsection (I) the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters (which are then enumerated in various clauses of that subsection). It was argued that the authorisation to make rules was hit by the doctrine of an "excessive delegation".
The point was raised in a general form and no particular rule was picked up for debate or arguments before me. The general argument, however, is devoid of any force, because, it is well settled that a statute can leave the task of making rules thereunder to the Executive Government.
The point was argued in a half-hearted manner and the learned counsel showed no case-law on the subject. The plea raised, therefore, is hereby repelled.
8. Another point argued was that the pamphlet in question or the alleged acts or activities of the petitioner at the railway platform which purported to comment upon the introduction of train facilities between India and Pakistan did not pertain to any 'enemy' or 'enemy country', because, India has not been declared as an enemy country by the Government of Pakistan, and as such, the arrest and involvement of the petitioner on the assumption that his actions and activities were in support of an enemy was without lawful authority. The pamphlet in question or the alleged acts or activities of the petitioner at the railway platform, according to the learned counsel, constituted no offence. This is a plea on the merits of the case and can be raised before the Tribunal concerned in the course of the trial, and as such, I do not feel the necessity to adjudicate upon it at this stage in that course of writ jurisdiction, especially when it depends upon appreciation of evidence to be led in the case both from the side of the prosecution and the defence, and also because, the activities of a person may be objectionable not merely because they are in favour of an enemy or enemy country, but also because they are detrimental to or against a friendly country as well.
9. No other point was argued before me.
10. The result is that this writ petition has no merit and is dismissed in