' Office has raised objection for not filing duplicate sets of the petition as the matter pertains to a Division Bench. On such office objection, it was stated by the learned counsel for the applicant that since the offence alleged is that of section 3/4 of the Prohibition (Enforcement of Hudood) Order, 1979, therefore, the matter falls within the jurisdiction of a Single Judge of this Court. Notice was issued to the Advocate-General, Sindh to address this Court on the above point.
2. I have heard Mr. M.M. Kazi, learned counsel for the applicant and Mr. Muhammad Saleem Samo, A.A.-G. Sindh for the State. Mr. M.M. Kazi has placed reliance on section 47 of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as the AU, 1997) through which the provisions of the Code of Criminal Procedure, 1898, were made applicable to the trials arid appeals before a Special Court constituted under the Act, 1997 except such provisions which are already specified in the Act, 1997. In this background it was argued by Mr. M.M. Kazi that a petition under section 561-A, Cr.P.C.
Not being an appeal can be heard by a Single Bench. Mr. Muhammad Saleem Samo, A.A.-G.
Vehemently opposed such submissions and contended that by virtue of section 48 of the Act, 1997 an appeal against the order of Special Court comprising a Sessions Judge or an Additional Sessions Judge shall lie to the High Court which is to be heard by a Bench comprising not less than two Judges of the High Court. It was, thus, argued that bail application and quashment applications are to be fixed before a Division Bench.
3. Before proceeding further, it would be advantageous to reproduce section 48 of the Act, 1997.
"Section 48. Appeal.--- (1) An appeal against the order of a Special Court comprising a Sessions Judge or an Additional Sessions Judge shall lie to the High Court and shall be heard by a Bench of not less than two Judges of that Court.
(2) An appeal against the order of a Special Court comprising a Judicial Magistrate shall lie to a Special Court comprising Sessions Judge or an Additional Sessions Judge."
4.It is pertinent to note that in section 48 of the Act, 1997 the word 'an appeal against the order of a Special Court' has been mentioned which indicates that all orders to be passed by a Special Court is made appealable before the High Court which will be heard by a Bench comprising not less than two Judges. Thus, it is not only a conviction or sentence against which an appeal has been provided. If the present applicant would have filed an application under section 265-K, Cr.P.C. And if the same would have been dismissed then naturally, this being an appeal against the order of the Special Court it would have been placed before a Bench comprising not less than two Judges.
It will be an anomaly to hold that in case a direct petition for quashment is filed under section 561- A, Cr.P.C. It is to be heard by a Single Judge and in case an appeal is to be filed against rejection of an application under section 265-K, Cr.P.C. It is to be heard by two Judges. This was never the intention of the Legislators. I have been informed by the Additional Advocate-General that all the bail matters arising out of Act, 1997 are being fixed before a Bench comprising two Judges. Similar is the position with the cases arising out of Suppression of Terrorist Activities (Special Court) Act, 1975 (hereinafter referred to as the Special Court Act. 1975). Even proceedings under section 561-A, Cr.P.C. In the matter of Special Court Act, 1975 (ibid) are being placed before a Bench comprising not less than two Judges. At this stage I would also like to quote the observations of Shafiur Rehman, J., (as his Lordship then was) in the case of State v. Syed Qaim Ali Shah 1992 SCM R 2192 at page 2224 who has interpreted section 7 of the Special Court Act, 1975 which also provides hearing of appeal by a Bench of two Judges of the High Court. It reads as follows:-- ". .There are a number of reasons why the expression no Court' in section 7 excludes the High Court as the Appellate Court with two modifications just indicated. The first and the most powerful one has already been indicated by reference to Article 203 of the Constitution. The second is that the appellate powers always include power to alter and reduce the sentence and that too is revision of the sentence. It is impossible to imagine that though appeal against sentence is competent but its revision in appeal is barred.Thirdly, having conceded to the High Court Appeal Bench all the appellate and other powers, normally available to the High Court, the exclusion of powers under sections 426. 491 and 498 are referable to the High Court functioning with less than two Judges. In other words, a Single Judge cannot exercise these powers..." (Emphasis added).
5. Perusal of section 48(i) of the Act, 1997 clearly indicates that an appeal against the order of a Special Judge comprising a Sessions Judge or an Additional Sessions Judge shall lie to the Division Bench of the High Court. In my considered view, a bail application and petition for quashment shall also lie before the same Bench and not before a Single Judge. Instant petition is under section 561- A, Cr.P.C. Seeking quashment of the proceedings of the trial pending before the Court of Special Judge constituted under the Act, 1997. It is to be placed before the Division Bench of this Court.
6. In view of the above legal position, the office objection, dated 12-1-1999 is upheld.