' SARDAR SAID MUHAMMAD KHAN, C.J.--- Appeals Nos.10 and 11, by leave, have been directed against a Bench of the High Court, whereby respondents were allowed bail while, Appeal No,13 of 1998 entitled above has been directed against an order of the Bench whereby the prosecution was directed to produce evidence on its own responsibility and refused to summon the witnesses through process of the Court. As a common question of the law with regard to the jurisdiction of this Court to hear the appeals in all the above mentioned three appeals is involved, we propose to dispose of the same by this single judgment.
2. In view of the fact that the appeals are disposable on the question of jurisdiction of this Court to hear appeals entitled above, I need not narrate in detail the relevant facts which culminated in the impugned orders. A preliminary objection has been raised on behalf of the accused-respondents that this Court has no jurisdiction to hear the appeals, by leave or otherwise, against the impugned judgments in view of the provisions contained in section 28 of the Ehtesab Act, 1997 (hereinafter shall be called the Act). It has been contended that the Ehtesab Act is a special enactment which also creates right of appeal. Under subsection (2) of section 28 of the Act an appeal to this Court has been provided only against an order of acquittal of an accused or an order of dismissal of reference; there is no provision of an appeal against any other order of a Court constituted under the Act. It was contended on behalf of the accused-respondents that under section 2(c) of the Act, "Court" has been defined as "a Bench of one or more Judges of the High Court or the Shariat Court nominated by the Chief Justice of the High Court or the Shariat Court" and under subsection (2) of section 10 of the Act, where more than one Benches have been constituted in the High Court or the Shariat Court, the cases referred to the High Court or the Shariat Court for trial under the Act shall be distributed amongst different Benches by the Chief Justices of the High Court and the Shariat Court, as the case may be. It has been contended that it is crystal clear from the aforesaid provisions that a Bench envisaged under section 2(c) would not be deemed as a Bench of the High Court or the Shariat Court for the purpose of distribution of Court work rather the word "Bench" implies a Special Court consisting of one or more Judges of the High Court or the Shariat Court within the meaning of section 2(c) of the Act. To substantiate the contention, it was maintained that had it been the intention of the law-givers that the trial under the aforesaid Act would he held by the High Court or the Shariat Court, it would have defined the word "Court" at the High Court or the Shariat Court of Azad Jammu and Kashmir as has been done in case of the Supreme Court; it has been contended that mere mention of word "Bench" in the definition of "Court" in section 2(c) of the Act would not imply that offences under the said Act are triable by the High Court or the Shariat Court, rather it implies that the trial will be held by the Special Court consisting of the Judge or Judges of the High Court or the Shariat Court to be constituted by the concerned Chief Justices under section 2(c) of the Act. It was further contended that while determining the correct connotation of the word "Court" in the definition, the provisions contained in section 2(c) and subsection (2) of section 10 of the Act should be read together, section 2(c) deals with the constitution of the Court whereas section 10(2) pertains to the distribution of the work amongst the different Benches of the High Court and the Shariat Court, by the respective Chief Justices. Thus, the word "Bench" used in section 2(c) cannot he interpreted to mean that the Bench consisting of Judges of the High Court or the Shariat Court in the general sense rather it implies the "Special Court" consisting of the Judges of the High Court or the Shariat Court. On the aforesaid premises, it was submitted that under subsection (12) of section 42 of the Interim Constitution Act, an appeal, by leave, against an order or judgment, of the High*Court can be preferred to the Supreme Court but there is no such provision if an order is passed by a Bench consisting of the Judges of the Shariat Court, thus, it would imply that no appeal would be competent against an order or a judgment passed by a Bench consisting of Judges of the Shariat Court whereas such an appeal, by leave, would be competent under subsection (12) of section 42 of the Interim Constitution Act. Such an interpretation would lead to ridiculous consequences, because in the similar circumstances, the right of appeal has been created against an order of a Bench of High Court but the same has been denied in case of a Bench of Shariat Court, which, of course, can never be the intention of the lawgivers, especially so when the right of appeal has been specifically given under section 28 of the Act in certain circumstances, as has been indicated above. It was further contended on behalf of the respondents that if the right of appeal or revision etc. Has been given under a special Act, that is to be strictly construed and nothing can be added to or subtracted from it. Thus, it was argued that as the right under section 28 has been given only in case of acquittal or an accused person or rejection of reference, the same cannot be extended to interlocutory order or any other order not envisaged by any statutory provision. The learned counsel for the respondents have submitted following authorities in support of their contentions:-- ' In case reported as Habib Bank Ltd. v. The State PLD 1988 Kar. 49, it was observed that the right of appeal being creature of the statute should be expressly provided and it would not be available either under inherent jurisdiction or by implication. It was observed that as under sections 10 and 12 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, the Special Courts have to follow the procedure prescribed by the said Ordinance and, thus, the provisions contained in the Cr.P.C. Could be resorted to only when there is no provision in the Ordinance dealing with a particular situation. It was further observed that the mere fact that the appeal against the order of a Special Court would be competent to the High Court does not make such Court inferior to the High Court so as to invest it with provisional powers under section 435 or 439, Cr.P.C.
' In case reported as Muhammad Ibrahim v. The State PLD 1990 Kar. 250, it was held that the Courts constituted under the Special Act, known as the Suppression of Terrorist Activities (Special Courts)
Act, 1975, are not subordinate to the High Court. Thus, it was held that the High Court could not exercise its revisional or inherent jurisdiction under sections 423 and 561-A, Cr.P.C.
' In case reported as Niaz Khalil v. Sh. Muhammad Shafiq 1995 SCM R 791, the petition for leave to appeal was refused observing that as no appeal was provided against an interlocutory order passed by the Rent Controller under section 24 of the Cantonments Rent Restriction Act, 1963, the High Court had rightly vacated the order passed in appeal by the Additional District Judge.
' In case reported as Ibrahim v. Muhammad Hussain PLD 1975 SC 457, it has been observed that right of appeal is the creature of the statute and it is not to be assumed on a priori ground.
' In case reported as Messrs Kandawala & Co. Ltd., Lahore v. Sh. Saeed-ud-Din 1969 SCM R 720, it has been observed that under.Section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, an appeal would be competent against an order of Rent Controller only if he has power to pass an order under the Ordinance. It was further observed that the mere fact that the issue as to jurisdiction had been decided, would not be a ground for assuming the existence of right of appeal when the same cannot be spelled out from the relevant provisions of the Ordinance.
' In case reported as Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.- W.F.P. PLD 1995 SC 66, it has been observed that the question of jurisdiction being very important and fundamental in nature could not be conferred by the consent of the party. It was held that as the right of appeal given under section 8-B(2)(3) of the Political Parties Act was violate of Article 63 of the Constitution of Pakistan, 1973, the appeal to the Supreme Court was not competent; only the Election Commissioner had the jurisdiction to decide the question regarding the disqualification of the concerned member of the Parliament. It was further observed that while deciding the question of jurisdiction of the Court, the vires of a subordinate legislation can be gone into by the Court.
3. In reply, Kh. Attaullah, the learned counsel for the appellants, has submitted that as in all the above entitled three appeals, the impugned orders have been passed by the Bench consisting of a Judge of the High Court, a comparison for the purpose of appeal to this Court between a Bench of the Shariat Court and a Bench of the High Court, is uncalled for. The learned counsel has argued that this Court has ample power to grant leave under subsection (12) of section 42 of the Interim Constitution Act, which it has done in case of all the above entitled appeals, therefore, it cannot be said that the appeals to this Court are incompetent for the lack of jurisdiction. The learned counsel has submitted that the mere fact that power to hear appeals under section 28 of the Act in case of acquittal or rejection of the reference has been given to this Court without seeking leave to appeal, does not mean that the powers which vest in this Court under subsection (12) of section 42 of the Interim Constitution Act, are no more exercisable. According to the learned counsel, in case when an order is passed by a Bench consisting of a Judge or Judges of the High Court, leave to appeal under subsection (12) of section 42 would not be necessary if the order is one of conviction or rejection of the reference but in all other cases, such as an order of refusal or grant of bail, an appeal to this Court by leave would be competent.
4. We have given due consideration to the matter. It is well-settled principle of law that the right of appeal is creation of the statute and, thus, nothing can be added to or subtracted from it. In the instant cases, the right to appeal under section 28 of the Act has been given only against an order of acquittal of an accused or rejection of a reference. There is no provision in the Act to assail an order passed by a Bench of the High Court or the Shariat Court regarding collateral matters by filing appeal to this Court. The question as to whether section 2(c) deals with the constitution of the Court for the purpose of the trial under the Act or it merely empowers the Chief Justices of the High Court and the Shariat Court to constitute Benches for the distribution of Court work amongst different Benches as is also normally done in all other cases needs resolution. It may be observed that the Chief Justices of the Shariat Court and the High Court are already empowered under the relevant rules governing their procedure to constitute Benches for the purposes of the distribution of the Court work. If I consider the provisions contained in section 2(c) and section 10 of the Act together, there remains hardly any doubt that section 2(c), though not happily worded, deals with the constitution of the Courts for the purposes of trial under the Act rather than the constitution of the "Benches" so as to facilitate the distribution of the business before various Benches. For the sake of convenience, sections 2(c), 10 and 28 of the Act are reproduced below:-- ' Section 2(c): ' Court' means a Bench of one or more Judges of the High Court or Shariat Court nominated by the Chief Justice of High Court or Shariat Court."
' Section 10:
(2) Where more than one Benches have been constituted in High Court or Shariat Court, the cases referred to the High Court or Shariat Court shall be assigned to various Benches by the Chief Justice of the High Court or Shariat Court."
' Section 28: "(1) Any person sentenced by the Court under this Act may within 30 days of the decision, prefer an appeal to the Supreme Court: Provided that the Court shall supply copies of its final decision to the convict free of costs.
(2) In case of acquittal or dismissal of the reference the Government may prefer an appeal within 30 days to the Supreme Court."
5. It is evident from the abovementioned provisions that under section 2(c) the Benches or for that matter the Special Courts are to be constituted consisting of either of Judges of the Shariat Court or the High Court by the respective Chief Justices for trying the offences falling within the ambit of the Act. Had the Legislature intended that the offences under this Act would be tribal by the Judges of the High Court or the Shariat Court, as such, it would not have empowered the Chief Justices to constitute "Benches" for the purposes of trial of the offences because the power already vested in them. Besides, the matter is further elucidated under subsection (2) of section 10 whereby the Chief Justices of the Shariat Court and the High Court have been given power to distribute the business in case of there exist more than one Benches in the Shariat Court or the High Court.
6. There is yet another aspect of the matter. If I accept the contention of the learned counsel for the appellants, it would imply that an appeal, by leave, against an order of a Bench of the High Court would be competent to this Court while there would be no such appeal if an order is passed by a Bench, consisting of Judges of the Shariat Court because under subsection (12) of section 42 of the Interim Constitution Act, leave to appeal can be only granted against an order of the High Court.
Such an interpretation, being paradoxical, offends against the well-settled principle of interpretation that it should be harmonious and should not lead to contradictory or ridiculous consequences. A reference may be made to the following cases:-- ' In case reported as Anil Das v. Mustaque Ahmed PLD 1967 Dacca 521, it has been held, that the expression "persona designata" means a person described in the statute or legal instrument by his official designation, and the function may be judicial or otherwise. If the function is a "jurisdiction" function then he is a Court, though he is described not as a Court but by official designation. There is no real antithesis between the expressions "persona designate" and "Court"; in other words, even a persona designate may be a Court. Whether he is a Court or not depends upon his powers and the functions which he has to discharge.
' In case reported as Abdul Qayyum v. Niaz Muhammad 1992 SCM R 613, it has been held that if two interpretations are possible, the one which will be consistent with the smooth working of the statute and eliminates uncertainty, confusion and contradiction should be adopted and every effort should be made to harmonies the two provisions and one should be construed with reference to other so that conflicting meanings are avoided. Identical view has been expressed in case reported as Market Committee, Khudian v. Town Committee, Khudian 1992 SCM R 1403.
In the light of what has been stated above, I have no hesitation in holding that the Benches consisting of the Judges of the High Court and the Shariat Court do not try the cases falling within the ambit of the Act as the High Court or the Shariat Court as such but as a Special Court designated under the said Act. Thus, as indicated above, theie being no appeal provided to the Supreme Court against an order of a Special Court allowing or disallowing bail to an accused person, the above appeals are hereby dismissed as being incompetent.
' BASHARAT AHMAD SHAIKH, J.--- I wish to add that there is another provision in the Ehtesab Act which clarifies whether a Court hearing an Ehtesab reference acts as a Bench of the High Court/Shariat Court or as a Special Court. The relevant prc ision is subsection (2) of section 3 of the Act which reads as follows:-- "(2) All offences under this Act shall be non-boilable and notwithstanding anything contained in sections 497, 498 and 561-A or any other provision of the Code or any other law for the time being in force, no Court other than the Court constituted under this Act shall have jurisdiction to grant bail." (Emphasis provided). "cThe use of word instituted" in the provision reproduced above unmistakably shows that the Ehtesab Act itself constitutes new Courts consisting of Judges of the High Court and Sharia Court rather than entrusting Ehtesab cases to the High Court or the Shariat Court.
' Supreme Court of Pakistan has recently held in Mohtarama Benazir Bhutto and another v. The State through Chief Ehtesab Commissioner [Constitutional Petitions Nos.28, 29, 34, 35, 36 of 1998 and Criminal Petitions Nos.166 and 167 of 1998, decided on 14-12-1998: 1999 SCM R 759] that Court hearing an Ehtesab reference acts as a Bench of the High Court and not as a Special Court. The Ehtesab Act has been enacted in Azad Jammu and Kashmir on the same lines as Ehtesab Act, 1997 enacted by the Parliament of Pakistan. However, there is a significant variance in the phraseology which is relevant to the point in issue. In Pakistan Act subsection (2) of section 3 runs as follows:-- "(2) All offences under this Act shall be non-boilable, and, notwithstanding anything contained in sections 497, 498 and 561-A or any provision of the Code or any other law for the time being in force, no Court other than the Court defined in clause (1) of section 2 shall have jurisdiction to grant bail." (Emphasis provided).
' In the provision reproduced above, the word "defined" has been used in sharp contrast to the word "constituted" used in the Azad Jammu and Kashmir Ehtesab Act. This is one of the reasons as to why the view taken by us in this judgment about the question under reference is different from the pronouncement of the Supreme Court of Pakistan. The other important reason is that in Pakistan Ehtesab Act, Ehtesab Benches consist of only of Judges of the High Court while in Azad Jammu and Kashmir Ehtesab Act these Benches consist of Judges of the Shariat Court also which creates a paradoxical situation discussed by the learned Chief Justice in para. 6.
'The appeals are, therefore, not maintainable and are dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.