CHAUDRY MUHAMMAD TAJ, J.--The petitioner, an accused under the provisions of Azad Jammu and Kashmir Ehtesab Bureau Act(hereinafter be to be as the Act), has moved an application under sections 497, 498 and 561-A, Cr.P.C. And Ehtesab Act, for his release on bail and cancellation of warrant issued under section 512, Cr.P.C.
2. The facts giving rise to the present petition are that a reference was filed for offences under section 4, Ehtesab Act, 1997 read with sections 406/409, 467/468, 109, A.P.C. And 5(2), Prevention of Corruption Act, against the accused-petitioner and other accused (not before the Court) in the Ehtesab Court (High Court). The petitioner applied for his pre-arrest bail which was allowed by the aforesaid Ehtesab Court. An appeal filed against the bail order was dismissed by the Supreme Court of Azad Jammu and Kashmir. Meanwhile, the Ehtesab Act, 1997 was repealed by another enactment called as the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001. The reference was transferred to the Ehtesab Court, Muzaffarabad (hereinafter referred to be as the Court) by operation of law. During the trial, the petitioner absented from the proceedings, as such his bail was cancelled and warrant of arrest under section 512, Cr.P.C. Was issued against him. In the meantime, the petitioner appeared before the Court and moved an application for his bail, after recalling the warrant of arrest issued earlier by it, against him. The Court disallowed the application vide its order, dated February 17, 2001, impugned herein.
3. M/s. Khawaja Shahad Ahmed and MirzaNisar Ahmed, the learned counsel for the accused- petitioner raised the following points in support of the petition:--
(i) That the petitioner was admitted to bail on merits, by the High Court, the Ehtesab Court, seized with the aforesaid reference, under the Ehtesab Act, 1997. The order allowing bail to the petitioner was also maintained by the Supreme Court of Azad Jammu and Kashmir, by dismissing the appeal filed against it;
(ii) that the Court, on transfer of the reference, while proceeding with it canceled the bail earlier granted by the High Court as Ehtesah Court and affirmed by the Supreme Court, on account of absence of the accused-petitioner. The impugned order was claimed to be against law for the following further reasons:--
(a) that after the transfer of the reference to the Court, the petitioner was not served with any notice issued to him for the case having been transferred to the said Court;
(b) that the accused-petitioner, in view of his ailment, applied to dispense with his personal attendance and to appear through his counsel, through an application accompanied by a medical certificate but the same was illegally turned down by the Court. The bail was cancelled;
(c) that the Court issued warrant under section 512, Cr.P.C. Without following the mandatory provisions of law, as such, the proceedings taken in contravention of the legal provisions, were not maintainable;
(iii) that the Court failed to appreciate the provisions of law, as such, refused the bail on merits; holding the accused-petitioner as an absconder, particularly when he never concealed himself;
(iv) that the absconsion was illegally construed without any inquiry in this regard and fresh bail was refused on that score. The learned counsel for the petitioner referred to PLD 1998 SC 1445, PLD 1977 SC 273; PLD 2000 Lahore 564 and PLD 1988 Azad J&K 33, in _support of their assertions.
4. Ch. Muhammad Ibrahim Zia, Chief Prosecutor and Mr. JavedNaz, Deputy Prosecutor, Ehtesab, representing the State, argued in the following manner:--
(i) That the Act being a special law, empowered the Court alone to enlarge an accused person on bail. The jurisdiction of all other Courts including the High Court, was barred by implication, under section 10(2) of the Act.
(ii) that under section 40 of the Act, it is only the final order which can be challenged by a person convicted or the Chief/Deputy Prosecutor aggrieved by the said final judgment of the Court, through an appeal, before this Court;
(iii) that the jurisdiction of this Court, keeping in view the provisions of the Act in respect of interlocutory order including the bail matters, stands barred. The reference was made to subsection (3) of section 40 of the Act;
(iv) that the scheme of law visualized in the aforesaid Act, was to avoid inordinate delay in disposal of the interlocutory matters, as such, the appeal was provided only against the final order and thus, empowered the Court alone to exercise its jurisdiction in respect of bail;
(v) It was also contended that the petitioner remained absent for a long time and intentionally concealed himself, as such, was held as absconder who, in view of the aforesaid reason, was not entitled to the concession of bail which was correctly refused. The learned counsel referred to sections 10(2) and 40(1) and (3) of the Act, judgment of this Court passed in Ch. Muhammad Azam and Ch. FazalHussain's cases (Cr. Misc. No,95 of 2000 and Cr. Misc. No,96 of 2000) on January 1, 2001 and PLJ 1983 AJ&K 212, in support of their assertions.
5. After hearing the learned Counsel for the parties, it is firstly to be determined as to whether this Court has the jurisdiction to entertain the bail petition.
6. To appreciate the proposition, it would be necessary to look into the relevant provisions dealing with the situation. Those are sections 10(2), (3), 20(1), 40(1) and (3) of the Act. The aforesaid provisions of law are usefully reproduced:-- "S. 10(2). All offences under this Act shall be non-bailable and no Court, except Ehtesab Court. Shall have jurisdiction to grant bail to any person accused of any offence under this Act.
(3) Where the Chairman, decides to release from custody or detention a holder of a public office or any other person accused of an offence under this Act, he shall do so after considering the gravity of the charge against such person and the accruing quantum of loss involved in the offence alleged to have been committed and may impose any reasonable conditions for such release: Provided that the Chairman may impose other conditions for release from custody or detention."
"S.20. Provision of the Code to apply.--(1) Notwithstanding anything contained in any other law for the time being in force unless there is anything inconsistent with the provisions of this Act; the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis, apply to the proceedings under this Act."
"40. Appeal.--(1) Any person convicted, or the Chief/Deputy Prosecutor, if so directed by the Chairman Ehtesab Bureau, aggrieved by the final judgment or order of the Court under this Act may, within fifteen days of the final judgment and order of the Court prefer an appeal to the High Court... ...
(3) Notwithstanding any other law for the time being in force or under this Act, no appeal against any interlocutory order of the Court during the proceedings pending before it under this Act, shall lie and an appeal shall lie only against the final judgment of the Court... ..."
The analysis of the aforesaid provisions reveals:--
(i) that the provisions of Code of Criminal Procedure shall, mutatis mutandis, apply to the proceedings under the Act unless there is anything inconsistent with its provisions;
(ii) that the Court was conferred with the jurisdiction to grant bail or otherwise, to any person accused of any offence under the Act;
(iii) that the Court, is a subordinate Court to this Court and its orders or judgments are appealable before this Court;
(iv) that the provisions of sections 496, 497; 498 and 561-A, being included in the Code of Criminal Procedure, are also applicable to the proceedings under the Act;
(v) that the Chairman of the Ehtesab Bureau is empowered with wide powers of admitting an accused to bail in any offence under the Act and releasing him, with or without any conditions, from the custody or detention.
7. Mr. Muhammad Ibrahim Zia, the learned Chief Prosecutor representing the State, on the strength of sections 10(2) 40(1) and (3) of the Act, made his submissions that in view of the scheme of law, to avoid delay, this Court was empowered to hear an appeal only against the final judgment or order of the Court and it was the trial Court alone which had the jurisdiction to grant bail. It may be stated that it is a settled principle of law that the appellate Court is vested with all those powers and jurisdiction conferred upon the trial Court. Reliance is placed on Musa's case (1986 PCr.11 578) wherein it was held: .. ...That if the trial Court had the power to allow bail there is no reason as to why the same would not be available to the Appellate Court. It was held that the High Court had the inherent powers to act and interfere in the matter."
The Act contains number of provisions, such as sections 496, 497, 498 and 561-A, Cr.P.C. Being applicable to the proceedings in support of the proposition. It will not be out of place to mention that the powers of this Court under the extraordinary Constitutional jurisdiction are available which cannot be taken away through any subordinate legislation except the provisions mentioned in the Azad Jammu and Kashmir Interim Constitution in this regard.
8. The proposition of granting or refusing bail under the Constitutional jurisdiction has been dealt with by the Full Bench of the Lahore High Court comprising five Judges headed by Chief Justice, in Anwar Saifullah Khan's case PLD 2000 Lahore 564, in the circumstances when the jurisdiction of the High Court was barred through subordinate legislation. Though to the extent of exclusion of powers of this Court, the discussion would be academic in nature as the said provision does not appear in the Act. The proposition was resolved in the following words:-- "---It Is true that under section 9(b) all offences under the National Accountability Bureau Ordinance (XVIII of 1999) are non-bailable and it has been stated that notwithstanding anything contained in sections 426, 491, 497, 498 and 561-A or any other provision of the Cr.P.C. Or any other law for the time being in force, no Court including the High Court shall have jurisdiction to grant bail to any person accused of such offences. It is also true that Chairman, National Accountability Bureau has been empowered under subsection (c) of section 9 to release any accused from its custody/detention after considering the gravity of the charge against such person and where the accusation specifies any amount in respect of which the offence is alleged to have been committed, after the payment of such amount. The underlying objectives of this Ordinance in the words of Preamble are 'to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matter connected and ancillary or incidental thereto'. The supreme purpose of this legislation is to effect recovery of defaulted amounts of lending institutions, money or gains, obtained through corrupt practices, misuse or abuse of powers, kickbacks, commissions and other like amounts. The powers conferred upon the Chairman, National Accountability Bureau are Draconian in nature, nevertheless these are not incommensurate with the ground realities obtaining in Pakistan. The National Accountability Bureau Ordinance, 1999 is a subordinate legislation and High Court had jurisdiction to review, examine and strike down any act or omission of the National Accountability Bureau as well as that of the Accountability Court if such act or omission is without jurisdiction, in excess of jurisdiction, or is in defiance of patent provisions of law or tainted with mala fides. High Court has jurisdiction under Article 199 of the Constitution (1973) to grant bail to the accused."
9. A similar situation arose before this Court in Raja MumtazHussainRathore's case PLD 1988 Azad J&K 33 where the cases against the petitioners were registered under the Emergency Powers Act which contained the provision by which the jurisdiction of all other Courts was barred except the Special Court constituted under the said Act. The point was resolved in the following manner:-- "17. The question, in view of the points canvassed on behalf of the parties, that now needs determination is whether the provisions of section 16(a) of the Act operate as a complete bar on the powers of the High Court to act under sections 498, 491 or 561-A etc. Of the Code of Criminal Procedure. The section in the Act, according to the learned Advocate-General, operates as a complete bar of jurisdiction except to the extent of the revisional powers exercisable after the conviction and sentence and in the case of reference when a sentence of death has been awarded under the Act.
18. For the proper perception of the point involved and to determine, whether the section in fact operates as a complete bar to the High Court's jurisdiction, it is imperative to have a reference to the relevant provisions in the light of the language in which it is couched, section 16(a) reads:-- 16(a). Notwithstanding anything contained in sections 497 and 498 of the Criminal Procedure Code or in any other law for the time being in force, no person accused or convicted of an offence made punishable by this Act or by an order under this Act, shall be released on bail or on his own bond, by any Court except Special Court constituted under the Act'. From the language employed, it is interesting to note that as regards the Criminal Procedure Code, ouster operates only to the extent of sections 497 and 498 because the reference thereafter relates to any other law. Should the provision, as it is, be taken to mean that the High Court's jurisdiction by virtue of the section in the Act, stands completely ousted? No such construction could, in our view, be placed to the section for the simple reason that sections 497 and 498 are not the only provisions in the Code which could be resorted to by the High Court. There are indeed other important provisions conferring such wider powers on the High Court e.g. Sections 561-A and 491, Cr.P.C. Etc. Had the legislature intended a complete ouster of the High Court's jurisdiction then those provisions too would have been expressly listed in the section or at least the mention of sections 497 and 498, Cr.P.C. Would have been followed by the wordings 'or any other provisions contained in the Code'. Instead the language employed is 'notwithstanding anything contained to the contrary in sections 497 and 498, Cr.P.C. Or any other law'. The language employed in the section, in our view, clear manifestation of the fact that the legislature never intended the meanings as has been suggested by the learned Advocate-General. Instead only the ouster of jurisdiction enjoyed by a Court of equal or parallel jurisdiction appears to have been intended by the law-makers.
19. It is now a settled principle that the jurisdiction of the Superior Courts, if, is intended to be ousted, should be through express and definite provisions and not through mere implication. Considering the language in which the section is couched, we are of the view, that the High Court can, in exercise of its inherent powers, allow the relief if the ends of justice, in its view, so demand...."
10. In another case titled 'Zahoor Ellahi v. State PLD 1977 SC 273, the Supreme Court of Pakistan resolved the proposition in the background of following facts:-- The case was registered against the petitioner under the provisions contained in the Defence of Pakistan Rules, 1971. He filed bail petition in Sindh Balochistan High Court. Section 13 subsection (1), clause (b), the relevant portion of which reads:-- (b)... ... But save as aforesaid and notwithstanding the provisions of the Code, or of any other law for the time being in force, or anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of a Special Tribunal, and no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal.' In the estimation of the learned Judge hearing the petition, was a bar to the jurisdiction to allow bail. The High Court, therefore, dismissed the petition. While considering the proposition, the learned Judges in the Supreme Court (by majority judgment) held:
(a) that the ouster of the Superior Courts' jurisdiction can only be excluded by express, definite and clear terms and not by mere implications; and
(b) that section 13 of the Ordinance was no bar to the inherent powers available to the superior Courts."
11. The Supreme Court of Pakistan, while reiterating the view earlier taken, in Mehram Ali's case PLD 1998 SC 1445, gave the following verdict:-- "9. In the case of Imran v. Presiding Officer, Punjab Special Court No, VI, Multan and 2 others (PLD 1996 Lahore 542) the vires of certain provisions of Offences in Respect of Banks (Special Courts)
Ordinance (IX of 1980) and of the Suppression of Terrorist Activities (Special Courts) Act, 1975, were examined by a Full Bench of the Lahore High Court headed by Khalil-ur-Rehman Khan, C.J. (as he then was). After examining inter alia Articles 175 and 203 of the Constitution it has been held that sections 3, 4 and 4-A of the Offences in Respect of Banks (Special Courts) Ordinance, 1980 and sections 3, 4 and 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, are unconstitutional as the same erode the independence of judiciary. Consequently, the Notifications appointing the Presiding Officers to the Special Courts were quashed. In the body of the judgment it has been held that 'So, wherever judicial power vests in a body/forum, whether designated as a Court or Tribunal and any right or liability conferred on or ensuing under a law is to be determined, the control and supervision over the said body/forum/Court or Tribunal under the mandate of the Constitution has to vest in the High Court. It will also be noted that express power has been conferred by the Indian Constitution to constitute/establish Tribunals alongwith the Courts in respect of matters/subjects enumerated in Articles 323-A and 323-B which also provide for the exclusion of judicial review by the High Courts and the theory of separatopm of Judiciary as is enshrined in Pakistan Constitution is not contemplated in Indian Constitution. Against the above judgment, the Federation filed appeals with the leave of this Court, namely, Civil Appeals Nos.1552 and 1553 of 1996, but the same were dismissed on 12-6-1997 as having become infructuous on the basis of statement of the learned Deputy Attorney-General that the relevant law was amended in the light of above High Court judgment."
12. It may also be mentioned that the powers conferred on the High Court and the Court of Sessions by section 498, Cr.P.C. Are not ancillary and subsidiary to the provisions of sections 496 and 497 and are to enlarge categories of persons to whom bail cannot be granted under sections 496 and 497, Cr.P.C. And make the provisions for the situations and contingencies not covered by sections 496 and 497 of the Code. The question that fell for consideration before the Supreme Court in Muhammad Ayub's case PLD 1966 SC 1003 was to resolve as to whether the section can be construed to extend that powers to the High Court or the Court of Sessions to grant bail even in cases where the Court was not competent to grant bail under section 497. After examining the true nature and scope of section 498, there was difference of opinion. The view taken by Mr. Justice Hamood-ur-Rehman, J and Mr. Justice Yactoob Ali, J., was in favour of the proposition while contrary view was taken by Mr. Justice A.R. Cornelius, C.J., and Mr.Justice Fazle-Akbar, J. The view taken by Mr. Justice Hamood-ur-Rehman and Mr.Justice Yaqoob Ali, JJ, was followed in number of other cases coming before the Court. The relevant observation is reproduced:-- "Per Hamood-ur-Rehman, J.--Taking into account the contexts in which section 498 appears and the wide words deliberately used in it in respect of the power of granting bail it seems that it is in the nature of a residuary and supplementary provision giving to superior Criminal Courts, namely, the High Court and the Court of Session, a wider power to grant bail, in appropriate cases, to persons to whom bail cannot be granted under sections 496 and 497. In what manner this power should be exercised or by what principles these superior Courts should be guided in exercising their discretion is an altogether different question and should not be taken into account for determining the true scope of this section. There can be no doubt that section 498 gives extended and wider powers to the High Court and the Court of Session but this power will no doubt normally be exercised in a reasonable and judicial manner taking into account the limitations placed by other provisions of the Code upon subordinate authorities and that a rule founded on justice and equity will not be disregarded unless there be exceptional circumstances. But this is a self-imposed restriction and not a restriction imposed by anything contained in the section. Normally this general salutary principle will no doubt be kept in view and will not be lightly departed from but this should not be held to debar the High Court and the Court of Session from deviating from it in exceptional cases or as controlling the wide words of section 498 as a matter of construction of the, section. This principle is invoked in aid more as a precaution against the indiscriminate grant of bail and not as a statutory clog upon the powers of these Courts. Per Muhammad Yaqub Ali, J.---There is no warrant to import into section 498 the ingredients of section 497. Sections 496 and 497 speak of bail and bonds. The first part of section 498 emphasize: that Court and police officers shall fix their amount with due regard to the circumstances of the case and shall not be excessive and the concluding part empowers the High Court or the Court of Session to reduce the bail required by a police officer or Magistrate. To this extent section 498 may be said to be ancillary to sections 496 and 497. The remaining part of the section which confers on the High Court or the Court of Session the power to admit any person to bail in any case and whether there be an appeal on conviction or not is, however, an independent provision. The plain meanings of the words employed by the Legislature in section 498 cannot be departed from on any rule of construction. The words 'in any case' do away with the distinction made in section 497 between cases punishable with transportation for life and death and cases involving lesser penalty: Similarly the use of the words 'any person' confer jurisdiction in respect of persons who may not be under arrest and do not appear in obedience to a process issued by the Court or are not brought before the Court as envisaged in section 497. It is the effect of these words which, justify grant of bail before arrest and not the subtle difference between the words 'release on bail' and 'admit to bail' used in sections 497 and 498 respectively."
13. The result of the foregoing discussion is:
(i) that this Court is vested with the jurisdiction to grant or refuse bail under sections 496, 497, 498 and 561-A, Cr.P.C. It follows that the powers include the release of an accused on bail or admitting him to pre-arrest bail in a case under the provisions of Ehtesab Act;
(ii) the jurisdiction of superior Courts in granting or refusing bail under the Constitutional jurisdiction cannot be taken away except such provisions maintained in the Constitution. The exclusion of jurisdiction of the High Court through subordinate legislation cannot be made.
14. Coming to the merits of the present case, the Court declined bail to the petitioner on the ground that he misused the concession of bail extended to him. Therefore, the petitioner was held absconder and on the ground of absconsion, he was not held entitled to bail.
15. An absconder means a person who is intentionally evading and avoiding service of notices, summons or warrants issued to him and intentionally makes himself inaccessible to the process of the law. It matters not if a person departs from his place or remains in it. If he conceals himself, in either case he is said to "abscond". But from the mere fact that a person is absent it should not be readily assumed without due enquiry and notice that he is an absconder.
16. It is admitted that the petitioner had applied to dispense with his personal attendance on account of his ailment, through an application accompanied by a medical certification. The Court declined to exercise its discretion in favour of the petitioner for his long absence from the proceedings on which basis he was also declared as a proclaimed offender which disentitled him to the concession of bail.
17. The record does not support the view taken by the Court. It may be recalled that the aforesaid proceedings were initially pending before the High Court, the Ehtesab Court which, by virtue of enactment of Ehtesab Bureau Act, 2001, was transferred to the Ehtesab Court. After the transfer of proceedings to the Court, it consumed sometime to make appointment of the Judge Ehtesab Court. The parties were also issued notices to appear before the Court. The accused-petitioner, on certain dates of hearing, was dispensed with his personal attendance. However, on October 21, 2000, the counsel for the petitioner was directed to produce the accused on November 4, 2000 when the Court had summoned the Constable who was to serve the notice upon the petitioner, to record his statement. On December 11, 2000, his statement was recorded and proceedings under section 512, Cr.P.C. Were taken and the bail earlier granted to the petitioner, was held cancelled. The accused-petitioner though on certain dates of hearing, was not present but cannot be held absent for his personal attendance being dispensed with. Therefore, the observation made by the Court with regard to his long absence from the proceedings, is not supported by the record. The bail, according to the record, was cancelled on December 11, 2000 whereas he moved an application for recalling the warrant of his arrest issued against him, on February 15, 2001. The learned counsel for the respondents, in course of arguments relied upon the judgment of this Court titled "Ch. Muhammad Azam and others v. State" and "Ch. Fazal Hussain and others v. State", recorded on 1-1-2001 and PLJ 1983 Azad J&K 212. The former judgment was passed in light of the law previously holding the field, i.e. Ordinance No,XLVI of 2000, dated November 27, 2000, therefore, is not applicable in the present circumstances. The latter authority, with its distinct facts, is also not applicable.
18. Keeping in view the facts and circumstances of the case, I am inclined to allow bail to the accused petitioner, by setting aside the order passed by the Court below for the following reasons:-
(i) That the accused-petitioner was admitted to bail on merits by the Court previously seized with the matter. The aforesaid order allowing bail was affirmed by the Supreme Court of Azad Jammu and Kashmir;
(ii) that the intention of the accused-petitioner did not appear from the record to evade and conceal himself as he had been applying through applications to dispense with his personal attendance;
(iii) that after passing of the order cancelling the petitioner's bail, he appeared before the Court within a period of two months;
(iv) that the Court should have considered the earlier order passed by the High Court, the Ehtesab Court on merits. It may also be added that though the present Court succeeded the Court earlier constituted for the purpose, but the fact remains that the present Court is a subordinate Court to the High Court; and
(v) that the facts forming the background of holding the petitioner as an absconder, were not sufficient to declare as such;
(vi) that the proceedings under section 512, Cr.P.C. Were taken without proceeding under sections 87 and 88, Cr.P.C., therefore, those were against the provisions of law. Reliance in this regard is placed on 1989 SCMR 1987, wherein it was held: "... ...In support of the present petition, the only ground urged is that the High Court has not given due- consideration to the abscondence of the respondents. On a query made by us, the learned Counsel for the petitioner frankly stated that no proceedings under sections 87 and 88, Cr.P.C. Were taken against the respondents in respect of their alleged abscondence. This is by now well-settled that if no such proceedings are taken, the abscondence is not of much consequence. If any precedents are needed, reference may be made to Liaqat Ali v. Masai Khan and another 1980 SCMR 208 and Fazal Muhammad v. Muzaffar Hussain etc. 1981 SCMR 959.... ..."
19. Therefore, the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs, 5,00,000 (Rupees five lacs only) with two sureties, alongwith his personal bond in the like amount, to the satisfaction of Deputy Registrar High Court, Muzaffarabad.