THE STATE through Chief Prosecutor, Ehtesab Bureau and others vs Mirza

' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the High Court, dated 2-3-2001, whereby the application of Mirza Javed Iqbal, respondent, for releasing him on bail was accepted holding that it had the jurisdiction to release an accused person despite the bar contained in the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001.

2. As important points are involved in the case, notices were issued to Raja Shiraz Kayani, Advocate-General, Mr. M. Tabassum Aftab Alvi, Raja Muhammad Hanif Khan, Mr. Abdur Rashid Abbasi, and Mr. Ghulam Mustafa Mughal, Advocates the senior members of the Bar to assist the Court. In view of the urgency of the matter, we treated the petition for leave to appeal as an appeal vide our order, dated 9-4-2001 and heard the arguments in the appeal.

3. It may be stated that as one of us (Muhammad Yunus Surakhvi, J.), was also holding the office of Chief Ehtesab Commissioner when Mirza Javed Iqbal was challaned under the law corresponding to the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, (hereinafter shall be called as the Ehtesab Act), he declined to associate himself with the Bench. However, Ch. Muhammad Ibrahim Zia, Chief Prosecutor; Ehtesab Bureau, stated that he did not press the appeal so far as the same pertained to the cancellation of the bail allowed to Mirza Javed Iqbal respondent, and wanted the dictum of this Court on the point as to whether the High Court has the jurisdiction to release a person on bail accused of an offence falling within the ambit of Ehtesab Act, despite the bar contained in section 10(2) of the Ehtesab Act read with sections 20 and 40 of the said Act.

Consequently, the arguments were heard in detail on the above reflected point.

4. Before dealing with the legal aspects of the case, it would be expedient to state brief facts which culminated in the appeal to this Court. A reference was filed against Mirza Javed Iqbal, respondent, under section 4 of the Ehtesab Act, 1997, read with sections 406, 409, 467, 468 and 109, A.P.C. And section 5(2) of the Prevention of Corruption Act, in the Ehtesab Court, i.e, High Court, under the relevant law which was in force at that time. Mirza Javed Iqbal applied for the pre-arrest bail which was allowed to him; the appeal filed against the order to the Supreme Court failed. Meanwhile, the aforesaid .Ehtesab Act of 1997 was repealed by the enactment which is known as Azad Jammu and Kashmir Ehtesab Bureau Act. The reference was transferred to the Ehtesab Court, Muzaffarabad, by operation of law. During the trial, Mirza Javed Iqbal failed to appear before the Court and, thus, his bail was cancelled and warrant of arrest was issued against him. However, subsequently, he appeared before the Court and filed an application for recalling the warrant issued against him and seeking bail alleging that his absence was not wilful but the same was necessitated in view of the fact that he had gone abroad for his medical treatment. However, his application was disallowed by the Ehtesab Court and he was arrested. Consequently, he filed an application to the High Court seeking his bail. The Full Bench of the High Court accepted his application and released him on bail observing that despite bar contained under section 10(2) of the Ehtesab Act, it had the jurisdiction to release an accused on bail. As has already been stated, the Chief Prosecutor, Ehtesab Bureau, did not press the appeal against Mirza Javed Iqbal respondent, the order of the High Court to the extent of his release would remain intact.

5. Now coming to the question as to whether the jurisdiction of the High Court to grant bail to an accused person stands ousted in view of the provisions contained in section 10(2) of the Ehtesab Act, it may be stated that under section 20(1) of the Ehtesab Act, unless there is anything inconsistent with the provisions of the Act, the provisions contained in the Cr.P.C. Are applicable in mutatis mutandis to the proceedings under the Ehtesab Act; under section 40, an appeal against an order of the Ehtesab Court has been provided only against a final order of acquittal or conviction of an accused and right of appeal has been taken away against any interlocutory order of the Ehtesab Court. So far as section 10(2) of the Ehtesab Act is concerned, that takes away the jurisdiction of all Courts except the Ehtesb Court to grant bail to a person who is accused of an offence under the provisions of Ehtesab Act. For convenience, subsection (2) of section 10 of the Ehtesab Act is reproduced below:-- "10(1) .............................................................................................

(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)

(4)

(Underlining is ours)

6. The moot point which needs resolution is as to whether the aforesaid provision bars the jurisdiction of all Courts except the Ehtesab Court to grant bail to a person who is accused under the provisions of the Ehtesab Act. Ch. Muhammad Ibrahim Zia, Chief Prosecutor, Ehtesab Bureau, has contended that except the Ehtesab Court, the abovementioned provision totally ousts the jurisdiction of all other Courts including the High Court and the Supreme Court to grant bail to an accused person and, thus, the High Court is not competent to release a person on bail, especially so when no appeal is competent to the High Court against an interlocutory order; according to the learned counsel, an order of release of an accused person on bail is an interlocutory order within the meaning of subsection (3) of section 40 of the Ehtesab Act and, thus, no appeal is competent to the High Court against such order. The learned counsel has contended that the High Court was not legally correct in observing in the impugned judgment that as under section 20 of the Ehtesab Act, the provisions of Cr.P.C. Are applicable to the proceedings under the said Act, it had the jurisdiction to release an accused person on bail under sections 497, 498 and 561-A, Cr.P.C. The learned counsel has stressed that the aforesaid provision clearly lays down that only those provisions of Cr.P.C. Would be applicable to the proceedings under the Ehtesab Act which are not inconsistent with the provisions of the Ehtesab Act. The learned counsel has argued that as the jurisdiction of the High Court has been ousted under section 10(2) of the Ehtesab Act, the provisions relating to bail, whether under sections 497, 498 and 561-A, Cr.P.C. Or any other law for the time being in force, cannot be pressed into service for releasing an accused on bail. The learned counsel has referred to the impugned judgment of the High Court and has argued that the High Court has relied upon some of the authorities in the impugned judgment which have no relevancy to the facts of the case in hand, especially in view of the phraseology employed in section 10(2) of the Ehtesab Act. He has contended that in none of the said authorities, it has been held that despite clear ouster like the one envisaged in section 10(2) of the Ehtesab Act, the High Court is still competent to release an accused person on bail. The learned counsel has further argued that while interpreting a statutory provision, the intention of the Legislature is to be ascertained by taking into consideration the scheme of the relevant statute and its overall provisions. He has contended that mere fact that the provision ousting the jurisdiction to grant bail is harsh or for that matter is not in consonance with the reasoning adopted by the High Court does not justify to release a person on bail despite the ouster of its jurisdiction. The learned counsel has submitted that the words "no Court" used in subsection (2) of section 10 of the Ehtesab Act includes the High Court and the same cannot be confined to the Courts subordinate to the High Court. The learned counsel has also argued that the authorities relied upon by the High Court in the impugned judgment have been given in view of the phraseology used in the relevant statutes and do not hold good in the instant case because of the total ouster of the jurisdiction of all Courts except the Ehtesab Court. The learned counsel has cited following authorities in support of his contentions:-- ' In case reported as Raja Muhammad Niaz Khan Ex-Chairman, Azad Kashmir Mineral and Industrial Development Corporation v. Azad Government of the State of Jammu and Kashmir, Muzaffarabad PLD 1988 SC (AJ&K) 53, while dealing with the scope of section 47(2) of the Interim Constitution Act, 1974, it has been observed that as after the phrase "notwithstanding anything herein before contained" the word "shall" has been used, it would imply that the other Courts including the superior Courts, i.e,, the High Court and the Supreme Court, have no jurisdiction to entertain a matter relating to the terms and conditions of service of a civil servant.

' In case reported as Ghiasul Haq v. Azad Government of the State of Jammu and Kashmir PLD 1980 SC (AJ&K) 5, while dealing with the scope of section 47(2) of the Interim Constitution Act, 1974, it has been observed that expression "no other Court" includes the High Court and the Supreme Court.

'In case reported as Azad Government v. Genuine Rights Commission, Azad Jammu and Kashmir 1999 MLD 268, while, interpreting section 46 of the Interim Constitution Act, it was held that the expression "such other Court" envisaged under subsection (2) of section 46 of the Interim Constitution Act would mean the Courts under the supervision and control of the High Court and not independent of it, whether administrative or otherwise. Thus, the argument that the Shariat Court could be established only if it was subordinate to the High Court was repelled by this Court.

' In a case reported as Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599, it has been held that under section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, the expression "or any other Court" includes the High Court. However, it was observed that in view of the phraseology of the relevant provision, the jurisdiction of the High Court to grant bail was not excluded.

' In a case reported as Taha v. State PLJ 2000 Cr.C. (Karachi) 1295, it has been held that as under section 30(3) of the Anti-Terrorism Act, 1997, no Court other than the Anti-Terrorism Court has the jurisdiction to grant bail, the jurisdiction of the High Court to grant bail is excluded; it was observed that the High Court cannot release an accused person on bail under section 561-A, Cr.P.C.

' In a case reported as The State v. Qaim Ali Shah 1992 SCMR 2192, it has been held that expression "no Court" in section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, will include the High Court because the High Court as an Appellate Court is competent to pass appropriate order under section 423, Cr.P.C.

7. Kh. Shahad Ahmad, the learned counsel for Mirza Javed respondent, has contended that as the appellants did not press the appeal so far as the same pertained to the cancellation of bail of Mirza Javed Iqbal, his client, there is no occasion for him to controvert the arguments advanced by the learned counsel for the appellants.

8. Mr. Abdur Rashid Abbasi, Advocate, appearing as amicus curiae, has contended that bar to release a person on bail under subsection (2) of section 10 of the Ehtesab Act is not applicable to the High Court. He has contended that the words "no Court" in the aforesaid provision are to be considered in context of the provisions of the Cr.P.C. Which are applicable to the proceedings under the Ehtesab Act if the same are not inconsistent with the provisions of the said Act. He has referred to section 4(j) and section 6 of the Cr.P.C. In support of his contention that expression "Court" used in any of the provisions of the Cr.P.C. Does not include the "High Court". The learned counsel has argued that under section 6 of the Cr.P:C., it has been laid down that there would be number of the Courts besides'the High Court which implies that the High Court does not include in the expression "Court" used in the Cr.P.C.; similarly, according to the learned counsel, as the High Court has been defined under section 4(j) of the Cr.P.C., to be the Court of appeal or revision, the words "no Court" do not include the High Court. Thus, the learned counsel has submitted that an order relating to the ouster of jurisdiction to release a person on bail under the Ehtesab Act is confined to the Courts of equal status of the Ehtesab Court, i.e, Sessions Court and the Courts of Magistrates; it does not apply to the High Court. The learned counsel has also referred to sections 46, 57 of the Interim Constitution Act and section 24 of the General Clauses Act to support hi.: contention that the words "no Court" in section 10(2) of the Ehtesab Act do not refer to the High Court and, thus, it has the jurisdiction to release a person on bail.

9. Mr. Ghulam Mustafa Mughal, Advocate, appearing as amicus curiae, has supported the contentions of Mr. Abdur Rashid Abbasi and further argued that an appeal to the High Court has been barred under subsection (3) of section 40 of the Ehtesab Act and not an application for releasing a person on bail, whether the same is treated to be an application under sections 497 and 498, Cr.P.C., a revision petition or an application under section 561-A of Cr.P.C. He has contended that even otherwise, the order refusing bail to a person is a "final order" in the bail matters and can be assailed by filing an appeal. He has argued that the provisions contained in subsection (3) of section 40 of the Ehtesab Act do not oust the jurisdiction of the High Court to release an accused person on bail or to set aside an order passed by the Ehtesab Court. The learned counsel has stressed that even if it is assumed that the jurisdiction of the High Court to release a person on bail under sections 497 and 498, Cr.P.C., is ousted, the same does not debar the High Court to release a person on bail under section 561-A, Cr.P.C., or in exercise of its revisional powers. The learned counsel has also argued that the expression "no Court" used in subsection (2) of section 10 of the Ehtesab Act does not include the High Court and that refers only to the Courts subordinate to the High Court. He has referred to the following authorities in support of his contentions:-- ' In a case reported as Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599, while dealing with a bail matter under the Offences in Respect of Banks (Special Courts) Ordinance, 1984, it was observed that it is well-settled principle of law that the jurisdiction of the superior Courts excluded by implications until and unless there is specific ouster of such jurisdiction. It was further observed that the expression "any other Court" in section 5(6) of the Ordinance is not reconcilable with complete ouster of everything and anything contained in the Criminal Procedure Code; the ouster would be only when a provision is in clash with the provisions contained in the Special Courts Ordinance.

' In a case reported as Gul Zaman v. The State 1999 SCMR 1271, it was observed that notwithstanding the bar contained in section 51 of the Control of Narcotic Substances Act, 1997, bail can be granted to an accused person because prohibition to grant bail was only regarding the offence which is punishable with death while bail could be allowed in suitable cases.

' In a case reported as Mian Munir Ahmad v. The State 1985 SCMR 257, it has been held that the provisions contained in section 561, Cr.P.C. Are applicable to any Court whether the same is subordinate to the High Court or not. It was further observed that as the Labour Court does not function as a "Magistrate" as envisaged under section 6 of Cr.P.C., it cannot be said to be subordinate to the High Court. However, the High Court allowed the appeal and quashed the criminal proceedings before the Labour Court under its inherent powers.

' In a case reported as The State v. Syed Qaim Ali Shah 1992 SCMR 2192, it has been held that the provisions of section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, do not oust the applicability of section 497, Cr.P.C., in respect of bail at trial stage. If the Legislature would have intended to oust the power of the High Court in granting bail to the scheduled offences, it would have clearly said so in the relevant provision.

' In a case reported as Hakim Ali Zardari v. The State PLD 1998 SC 1, while dealing with section 3(2) of Ehtesab Act, 1997, it was observed that the said provision does not mean to nullify the provisions contained in sections 497, 498 and 561, Cr.P.C. And it meant to exclude the jurisdiction of the Courts other than the Courts defined in section 2 of the statute.

' In a case reported as Muhammad Ayub v. Muhammad Yaqub PLD 1966 SC 1003, the nature of the scope of sections 497 and 498, Cr.P.C., has been discussed. The question which fell for determination of the Court was as to whether the principles which are applicable in case of section 497, Cr.P.C., are also attracted while exercising power under section 498, Cr.P.C.

' In a case reported as The State v. Matloob Hussain Shah 1983 PCr.LJ 745, it has been held that the jurisdiction of the superior Courts can be taken away only by express words and not by implications. It was held that as the case was one of "further inquiry", the High Court had rightly 'released the accused charged with facilitating the murder on bail.

10. Raja Shiraz Kayani, the learned Advocate-General, has argued that the Ehtesab Act is not violative of any of the Constitutional provisions and, thus, the same could not be regarded as a bad law. However, he has supported the arguments advanced by Mr. Abdur Rashid Abbasi and Mr. Ghulam Mustafa Mughal that the jurisdiction of the High Court to release a person on bail is not ousted by subsection (2) of section 10 of the Ehtesab Act and that the words "no Court" used in the Ehtesab Act do not refer to the High Court but only to the Courts subordinate to the High Court.

Thus, according to him, the High Court has the jurisdiction to release a person on bail guilty of an offence falling within the ambit of Ehtesab Act.

11. Raja Muhammad. Hanif Khan, Advocate, appearing as amicus curiae, has contended that the jurisdiction of the High Court to release a person on bail under sections 497, 498 and 561-A, Cr.P.C., is not ousted and the High Court is competent to, grant bail by pressing the aforesaid provisions in service. He referred to a case reported as Asif Ali Zardari v. The State 1991 PCr.LJ 595, wherein, while discussing the scope of section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter shall be referred to as the Special Courts Act)' , it has been held that the power of the High Court under section 498, Cr.P.C., to grant bail has also been taken away by the Act, it is further observed that the Legislature by mentioning sections 426, 491 and 498, Cr.P.C. In subsection (1) of section 7 of the Special Courts Act, clearly intended to take away the power of the High Court to grant bail under the aforesaid provisions of law. The authority does not support the arguments advanced rather it supports contrary view.

12. Mr. M. Tabassum Aftab Alvi, Advocate, appearing as amicus curiae, has submitted that the, jurisdiction of the High Court to release a person on bail is altogether ousted and that the words "no Court" used in subsection (2) of section 10 of the Ehtesab Act include the "High Court" or any other Court except the Ehtesab Court. The learned counsel has argued that a statutory provision is to be interpreted so as to give effect to the wishes of law-giver and not to hinder it. He has argued that while interpreting a statutory provision, the words can neither be added nor be subtracted. He has contended that section 4(j) or section 6 of the Cr.P.C. Are not relevant for interpreting the provisions contained in subsection (2) of section 10 of the Ehtesab Act. The learned counsel has contended that under section 20 of the Ehtesab Act, the provisions of Cr.P.C. So far as the same are in conflict with the Ehtesab Act would have no effect. The learned counsel has argued that it has been clearly laid down in subsection (2) of section 10 of the Ehtesab Act that no Court other than the Ehtesab Court has powers to release a person on bail, which implies that the word bail is to be undeistood in general sense meaning thereby that a person guilty of an offence falling within the ambit of Ehtesab Act cannot be released on bail by any other Court including the High Court, except by the Ehtesab Court He has further submitted that the mere fact that the Ehtesab Court is subordinate to the High Court because the High Court is its appellate Court, does not mean that the High Court necessarily enjoys all the powers which the Ehtesab Court enjoys. The learned counsel has submitted that the law should be interpreted as it is and not as it should be. He has further submitted that it is well-settled principle of law that inherent powers of a Court are only available if there is no other provision covering a particular situation in the relevant law. Thus, according to the learned counsel, as the jurisdiction of all other Courts except the Ehtesab Couri to release a person on bail has been ousted, it is not correct to suggest that if the power of High Court to release a person on bail under sections 497 and 498, Cr.P.C. Is not available, an accused person can be released on bail in exercise of inherent powers of the Court. He has contended that inherent powers of a Court cannot be pressed into service to defeat the intention of Legislature. The learned counsel has cited some authorities in support of his contentions wherein the expression "any other Court" has been held to be inclusive of the High Court.

13. It would be expedient here to make a brief survey of the authorities which have been relied upon by the High Court which is as under:-- ' In case reported as Raja Mumtaz Hussain Rathore v. The State PLD 1988 Azad J&K 33, it has been observed that section 16-A of the Azad Jammu and Kashmir Emergency Powers Act of 1958 does not exclude the jurisdiction of the High Court under sections 497, 498 and 561-A, Cr.P.C., to grant bail. It was observed that the jurisdiction of the Superior Courts can be taken away only through express and definite provision and not by implication. Thus, it was further observed that even if the jurisdiction to grant bail under sections 497 and 498, Cr.P.C., was assumed to have been taken away, the High Court could release an accused person on bail in exercise of its inherent powers or revisional jurisdiction.

' In case reported as Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273, while discussing the scope of Defence of Pakistan Rules, 1971, it was held by majority that as there was allegation of mala fide by the accused, the High Court had the jurisdiction to release the accused on bail despite the bar to release such a person on bail under sections 497 and 498, Cr.P.C. However, the minority view was that the High Court was not competent to allow bail in view of the bar contained in section 13(1)(b) of the Ordinance XXX of 1971.

' In case reported as Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445, certain provisions of an Act known as Anti-Terrorism Act, 1973, were assailed as being violative of the Constitutional provisions contained in the Constitution of Pakistan, 1973, and, thus, were struck down. This authority has no relevancy to the proposition involved in the case in hand.

' In a case reported as Anwar Saifullah Khan v. The State PLD 2000 Lah. 564, it has been observed that "bail" means to procure release of one charged with an offence by ensuring his future appearance in the Court and compelling him to remain within the hands of the Court through sureties. It was further observed that despite the bar contained in section 9(b) of the National Accountability Bureau Ordinance, 1999, whereby the jurisdiction of the High Court to grant bail under sections 426, 491, 497, 498 and 561, Cr.P.C., had been taken away, the High Court still had the jurisdiction to release a person on bail under the Constitutional jurisdiction if it was shown that the allegations made by the aggrieved person to get relief in writ jurisdiction were satisfactory. It may be observed that in the instant case the impugned order was not passed in writ jurisdiction and, thus, this authority has also no relevancy to the facts of the case in hand.

' In case reported as Muhammad Moosa v. The State 1986 PCr.LJ 578, while dealing with the scope of sections 5 and 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, it has been observed that as appeal against the final judgment of the Tribunal lay to the High Court, it cannot be said that the High Court had no jurisdiction to grant bail when the trial Court which is subordinate to it enjoyed such a jurisdiction. It was observed that as the jurisdiction of the High Court under sections 497 and 498, Cr.P.C., was not excluded by subsection (6) of section 5 and section 10 of the Ordinance, the High Court was empowered to grant bail in appropriate cases and that even otherwise, the bail can be granted by the High Court under its inherent jurisdiction.

' In case reported as Dil Mir v. Government PLD 1959 Azad J&K 61, it was held that in view of the language employed in section 16 of the Emergency Powers Act, it cannot be said that the Legislature intended to restrict the powers of the High Court for granting bail to an accused person; section 16 meant nothing beyond that certain offences which under the Criminal Procedure Code were non-cognizable and bailable were made cognizable and non-bailable. Consequently, the High Court granted bail to the accused under section 498, Cr.P.C.

14. We have given due consideration to the matter in light of the arguments advanced by the learned counsel at Bar. It may be stated that most of the authorities cited at Bar have been given under different statutes in view of the phraseology employed therein; in most of the said statutes the phraseology identical to one used in subsection (2) of section 10 of the Ehteab Act has not been employed. Needless to say, while interpreting a statutory provision, the intention of the Legislature is to be ascertained in view of the phraseology used therein. If the intention of the Legislature is conveyed clearly by plain words, the same should not be by-passed by twisting the law in derogation to the well-settled principles of interpretation. It hardly needs any authority that a Court can neither add nor subtract from a statutory provision while interpreting it. It may be stated that in some of the authorities, referred to above, the jurisdiction granting bail to an accused person under the relevant statute has been barred in terms that no Court except a Special Court would be competent to release an accused person on bail under sections 497 and 498. Cr.P:C. Whereas in the instant case no statutory provision has been mentioned in subsection (2) of section 10 of the Ehtesab Act while ousting the jurisdiction of the High Court. According to the said provision, no Court shall release a person on bail except the Ehtesab Court; it clearly implies that no Court, including the High Court has the jurisdiction to release a person on bail under any of the provisions of Cr.P.C. Or any other statute. The only exception which can be claimed is that if a particular power has been given to the High Court by the Constitution, the same cannot be taken away by a subordinate legislation. Under section 44 of the Interim Constitution Act, the High Court has the jurisdiction as conferred by the said Act itself or by any other law. The High Court has been empowered to issue writs in appropriate cases under section 44 of the Interim Constitution Act which cannot be taken away by subordinate legislation; in all cases, where the jurisdiction is given by a subordinate legislation, the same can also be taken away by the subordinate legislation.

There can hardly be any controversy that power of High Court to release a person on bail under the Cr.P.C. Has been given by subordinate legislation and can be taken away by any other subordinate legislation as has been done in the instant case by enacting section 10(2) of the Ehtesab Act. Thus, there is hardly any justification to argue that the words "other Court" employed in subsection (2) of section 10 do not apply to the High Court, especially so when no such intention can be inferred from the provisions contained in the Ehtesab Act.

15. It may be stated that in Anwar Saifullah's case referred to above, the order was passed by the High Court in exercise of writ jurisdiction. Needless to say that an order in exercise of writ jurisdiction can be passed subject to the conditions laid down in the relevant Constitutional provision. Thus, the aforesaid authority relied upon by the High Court in support of its view that it has jurisdiction to release an accused person on bail despite the bar contained in section 10(2) of the Ehtesab Act is not sustainable. While giving a relief in exercise of writ jurisdiction altogether different considerations weigh with the Court and, thus, such an order is not helpful for interpreting section 10(2) of the Ehtesab Act. It may be observed that the perusal of the facts of Anwar Saifullah's case, referred to above, reveals that the writ jurisdiction was exercised by the High Court on the basis of the facts which have no relevancy to the facts of the instant case.

16. As is evident from the above survey that those authorities including the one in Anwar Saifullah's case were given in view of the particular phraseology used in the relevant statutes which is different from the one used in the instant case. In some of the authorities, referred to above, only sections 497 and 498, Cr.P.C., were mentioned while ousting the jurisdiction of the Court while in other sections 497. 498, 561-A and 426 were also referred. It appears that the Legislature deemed it proper to use the word "bail" in subsection (2) of section 10 of the Ehtesab Act while ousting the jurisdiction of "other Courts" other than the Ehtesab Court which implies that the Legislature intended to oust the jurisdiction to release a person on bail, irrespective of various provisions which can be pressed into service while allowing bail to an accused person. Thus, the general word "bail" employed by the Legislature in the aforesaid provision clearly indicates its intention to take away the jurisdiction of all the Courts except the Ehtesab Court to release a person on bail.

17. It would not be out of place here to reproduce below the relevant provisions of other enactments on the basis of which some of the cases discussed above were decided; the relevant provisions of the said statutes are quite different from the one contained in section 10(2) of the Ehtesab Act: ' The provisions contained in subsection (6) of section 5 of the Ordinance known as Offences in Respect of Banks (Special Courts) Ordinance, 1984, are as under:-- "5. (1).

(2).

(3).

(4) ..........................................................

(5) ..........................................................

(6) An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released.

(7)

(8) ..

' The provisions contained in section 51 of the Control of Narcotic Substances Act, 1997, are as under:-- "51. No bail to be granted in respect of certain offences.-- (1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law-relating to narcotics where the offence is punishable with death.

(2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."

' The provisions contained in section 12 of an Act known as Anti-Terrorism Act, 1997 are as under:--

12. "Jurisdiction of (Special Court).--- (1) Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by (the Special Court) exercising territorial jurisdiction in relation to such area.

(2)

18. It is evident from the provisions reproduced above that the authorities given in light of the said provisions are substantially different from the one contained in the Ehtesab Act and do not provide guidance in the instant case. Similar is the position of some other authorities discussed in the earlier part of this judgment. Thus, the question, as to whether in the instant case, the jurisdiction of other Courts other than the Ehtesab Court to grant bail is barred or not, should be decided in view of the provisions of the Act itself and not on the basis of the authorities which are based on different provisions.

In the light of what has been stated above, I accept the appeal, set aside the impugned judgment of the High Court in terms that it has no jurisdiction to release a person on bail who is accused of an offence falling within the ambit of Ehtesab Act.

(Sd.) Chief Justice ' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been preferred against an order passed by the High Court on 2-3-2001, whereby respondent Mirza Javed Iqbal was released on bail and the warrants issued against him under section 512, Cr.P.C. By the Ehtesab Court, Muzaffarabad were cancelled.

2. The necessary facts, giving rise to the present appeal, are that a reference was filed against the respondent and other accused (not before the Court) for allegedly committing offences under section 4 of Ehtesab Act, 1997 read with sections 406, 409, 467, 468, 109 A.P.C. And 5(2) of Prevention of Corruption Act in the Ehtesab Court (High Court). The respondent applied for the pre-arrest bail which was allowed to him by the Ehtesab Court and appeal filed against the grant of bail order was dismissed by the Supreme Court of Azad Jammu and Kashmir. Meanwhile Ehtesab Act, 1997 was repealed by another Act called as the Azad Jammu and Kashmir Ehtesab Bureau Act, 2000.

The reference was transferred to Ehtesab Court, Muzaffarabad by operation of law. During the trial the respondents absented himself from the proceedings as such his bail was cancelled and warrants of arrest under section 512, Cr.P.C. Were issued against him. Subsequently the respondent surrendered himself and appeared before the Ehtesab Court and moved an application for his bail, after recalling the warrants of arrest issued earlier against him. The said Court disallowed the application vide its order, dated February 17, 2001 and the accused-respondent was taken into custody. This order was assailed before the High Court by moving an application under sections 497, 498, 561-A and other enabling provisions of Criminal Procedure Code and Ehtesab Bureau Act, 2000 for his release on bail and cancellation of warrants issued in consequence of proceedings under section 512, Cr.P.C. The Full Bench of the High Court vide its order, dated 2-3-2001 released the respondent on bail and cancelled the warrants of arrest issued against him under section 512, Cr.P.C. It is the aforesaid order of the High Court which is the subject of present petition for leave to appeal. In view of the important points involved in the petition, the same was converted into regular appeal and the arguments were heard.

3. In support of appeal it was vehemently contended by Ch. Muhammad Ibrahim Zia, the Chief Prosecutor, Ehtesab Bureau, that the High Court has acted without jurisdiction while passing the impugned judgment as the High Court had no power to grant bail to an accused under Ehtesab Bureau Act. The learned counsel contended that it was only the Ehtesab Court which under section 10(2) of the Ehtesab Bureau Act could grant bail to an accused. The learned counsel pressed into service the submission that the said provision of law specifically lays down that no other Court shall have jurisdiction to grant bail to any person accused of any offence under this Act. The learned counsel also contended that the Ehtesab Bureau Act is a special law to which there is exclusion of the applicability of Criminal Procedure Code to the extent of inconsistency as section 20 of the Ehtesab Bureau Act makes the said Code applicable only to the proceedings under the Ehtesab Bureau Act. Thus, the Criminal Procedure Code not being applicable sections 496, 497, 498, 561-A and 435 to 439, Cr.P.C. Were not available to the High Court. The learned counsel further submitted that in any case the High Court had no power to grant bail before arrest and the High Court fell in error in taking the contrary view. As a matter of fact, according to the learned counsel for the appellants, the question of pre-arrest bail did not fall for determination in the present case.

The learned counsel contended that the judgments cited in the order under appeal were based on legal provisions which were totally different than the provisions of the Ehtesab Bureau Act and had wrongly been relied upon. The learned counsel also contended that even in exercise of Constitutional jurisdiction the High Court has no power to grant bail as no such power exists in the Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned counsel submitted that he does not want the cancellation of bail of accused-respondent Mirza Javed Iqbal but on the other hand he wants this Court to lay down an authoritative judgment on the point as to whether in view of provisions of sections 10(2), 20 and 40 of the Ehtesab Bureau Act, the High Court was at all competent to release an accused on bail who is involved in a case for allegedly committing offences under the Ehtesab Bureau Act. The learned counsel for the appellants referred to section 47(2) of the Azad Jammu and Kashmir Interim Constitution Act and maintained that on account of establishment of Service Tribunal, the jurisdiction of the High Court on all matters relating to terms and conditions of service of civil servants stood ousted. On the same analogy it was impressed upon that in view of provisions of the Ehtesab Bureau Act, the jurisdiction of High Court releasing an accused on bail or admitting him to bail stood ousted. The learned counsel for the appellants contended that it is only the final judgment passed by the Ehtesab Court which is appealable to the High Court and no interlocutory order in the shape of grant or refusal of bail by the Ehtesab Court is appealable or revisable by the High Court. The learned counsel for the appellants in support of his contentions relied on a case reported as Ghiasul Haq v. Azad Government of the State of Jammu and Kashmir PLD 1980 SC (AJ&K) 5, wherein while dealing with the scope of section 47(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, it was observed that the expression "no other Court" includes the High Court and the Supreme Court.

' In another case, cited by the learned counsel for the appellants, reported as Raja Muhammad Niaz Khan, Ex-Chairman, Azad Kashmir Mineral and Industrial Development Corporation v. Azad Government of the State of Jammu and Kashmir, Muzaffarabad PLD 1988 SC (AJ&K) 53 while dealing with the scope of section 47(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, it was observed that as after the phrase "notwithstanding anything hereinbefore contained" the word "shall" has been used, it would imply that the other Courts including the superior Courts, i.e, the High Court and the Supreme Court, have no jurisdiction to entertain a matter relating to the terms and conditions of service of a civil servant.

4. The aforestated both the .Authorities cited by the learned Chief Prosecutor, Ehtesab Bureau have no relevancy to the case in hand as in both the cases the petitioners were civil servants and the matter was with regard to an the terms and conditions of their service. When under section 47(2) of Azad Jammu and Kashmir Interim Constitution Act a special forum of Service Tribunal was created, then it was provided that the matters pertaining to terms and conditions of civil servants shall be triable by Service Tribunal and by no other Court.

5. Kh. Shahad Ahmed, the learned counsel for respondent, by controverting the arguments raised by the learned counsel for the appellants, submitted that by introducing the relevant provisions of the Ehtesab Bureau Act, the entire provisions of the Code of Criminal Procedure have not been excluded. The learned counsel contended that it is only provided in section 10(2) of the Ehtesab Bureau Act that no Court other than the Ehtesab Court constituted under the Act shall grant bail to an accused under the Ehtesab Bureau Act. Simply by empowering the Ehtesab Court to release an accused person on bail it cannot be presumed that the rest of the provisions of the Code of Criminal Procedure which deal with the bail matters have been excluded and thus the jurisdiction of every other criminal Court stands ousted. The learned counsel contended that the impugned judgment passed by the High Court suffered from no illegality or infirmity as suggested by the Chief Prosecutor, Ehtesab Bureau and as such the judgment passed by the High Court needs no interference especially so when a prayer has been made by the Chief Prosecutor, Ehtesab Bureau that he does not want the cancellation of bail of accused-respondent Mirza Javed Iqbal.

6. In view of the important nature of the case and. The points of vital legal importance having been involved in it, we sought the assistance of Raja Shiraz Kayani, Advocate-General, Mr. Abdul Rashid Abbasi, Mr. Ghulam Mustafa Mughal, Raja Muhammad Hanif Khan and Mr. M. Tabassum Aftab Alvi, the prominent lawyers from Muzaffarabad, to assist the Court on the points formulated, as amicus curiaes.

7. Mr. Abdul Rashid Abbasi, Advocate, submitted with vehemence that the Ehtesab Court is a Court subordinate to the High Court to which there is no quarrel as such all the powers vested in the subordinate Court are vested in the appellate Court. The learned counsel further contended that the High Court has the power to exercise its jurisdiction under the Code of Criminal Procedure as well as under the Constitution. The powers which have been entrusted to the High Court under the Code of Criminal Procedure could be taken away by express exclusion of the said powers by a special enactment but the Constitutional jurisdiction conferred upon the High Court under sections 44, 46(1) and 46(2) could not be taken away by subordinate legislation. The learned counsel referred to section 4(j) and section 6 of Cr.P.C. In support of his contention that expression "Court" used in any of the provisions of Cr.P.C. Does not include the "High Court". The learned counsel argued that under section 6 of the Cr.P.C. It has been laid down that there would be number of Courts besides the High Court which implies that the "High Court" does not include in the expression "Court" used in the Cr.P.C. Similarly according to the learned counsel, as the High Court has been defined under section 4(j) of the Cr.P.C. To be the Court of appeal or revision, the words "no Court" do not include the High Court. Thus, the learned counsel submitted that an order relating to the ouster of jurisdiction to release a person on bail under the Ehtesab Bureau Act is confined to the Courts of equal status of the Ehtesab Court, i.e, the Sessions Court and the Courts of Magistrate; it does not apply to the High Court. The learned counsel also referred to sections 46 and 57 of the Interim Constitution Act and section 24 of the General Clauses Act to support his contention that the words "no Court" in section 10(2) of the Ehtesab Bureau Act do not refer to the High Court and, thus, it has the jurisdiction to release a person on bail.

8. Mr. Ghulam Mustafa Mughal, Advocate, also contended that in section 10(2) of the Ehtesab Bureau Act the words "High Court" have not been used, therefore, the jurisdiction of the High Court was not ousted. The High Court is a Court of appeal against the Ehtesab Court and as a Court of appeal it has the same powers which are available to the Ehtesab Court. The learned counsel also contended that the High Court has inherent powers under section 561-A, Cr.P.C. And the said powers can be exercised by the High Court in appropriate cases. He further submitted that the Ehtesab Bureau Ordinance was promulgated in Azad Jammu and Kashmir on 28-7-2000. In the said Ordinance in section 10(2) the words "High Court" were used but in the Ehtesab Bureau Act the words "High Court" were intentionally deleted. This shows that the intention of Legislature was clear that the jurisdiction of the High Court was not excluded. The learned counsel in support of his contentions cited Ch. Raj Muhammad v. Azad Government of the State of Jammu and Kashmir PLD 1983 SC (AJ&K) 75, wherein it was observed that if the ouster clause be not clear and unambiguous, the same could not be inferred. The learned counsel also contended that the question of "no other Court" has been dealt with in so many judicial pronouncements. Thus, the High Court could not be construed to be used alongwith the words "no other Court". He in support of his contention relied on reported cases tilted Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599, GuI Zaman v. The State 1999 SCMR 1271, The State v. Syed Qasim Ali Shah 1992 SCMR 2192, Hakim Ali Zardari v. The State and another PLD 1998 SC 1, Abdur Razzaq and another v. Nawabzada Col. (Retd.) Muhammad Khalid Khan through legal heirs 1995 SCMR 257 and Muhammad Ayub v. Muhammad Yaqub and another PLD 1966 SC 1003. Mr. Ghulam Mustafa Mughal further argued that an appeal to the High Court has been barred under section 40(3) of the Ehtesab Bureau Act and not an application for releasing a person on bail, whether the same is treated to be an application under sections 497 and 498, Cr.P.C. a revision petition or an application under section 561-A, Cr.P.C. He has contended that even otherwise the order refusing bail to a person is a "final order" in the bail matters and can be assailed by filing an appeal. He has further contended that even if we assume that jurisdiction of the High Court to release a person on bail under sections 497 and 498 is ousted, the same does not debar the High Court to release the person under section 561-A, Cr.P.C. Or, in exercise of its revisional jurisdiction.

9. Raja Shiraz Kayani, the learned Advocate-General, also supported the contentions of Mr. Abdul Rashid Abbasi, Mr. Ghulam Mustafa Mughal and Kh. Shahad Ahmed, Advocates. He contended that the Ehtesab Bureau Ordinance promulgated in Azad Jammu and Kashmir on 28-7-2000 was borrowed from Pakistan and its provisions were almost similar to those contained in the National Accountability Bureau Ordinance of Pakistan. He vehemently urged that in the National Accountability Bureau Ordinance of Pakistan the words "High Court" were used and it was specifically mentioned in the said Ordinance that no Court including the High Court had any jurisdiction to grant bail to a person accused of an offence under the N.A.B. Ordinance but in Azad Jammu and Kashmir the situation is different as the Ehtesab Bureau Act came into force affer due deliberations and discussions and a detailed debate made on the floor of the Azad Jammu and Kashmir Legislative Assembly. Thus, in the ouster clause the words "High Court" were purposely omitted and it was nowhere stated that the powers of High Court for granting bail to an accused under the Ehtesab Bureau Act or under the provisions of scheduled offences shall stand ousted.

The learned counsel contended that the intention of Legislature is thus absolutely clear that it never intended the exclusion of jurisdiction of the High Court in granting bail. The learned counsel contended that the words "no other Court" have been used in the context of Courts of equal and parallel jurisdiction. Even in the ordinary law, according to the learned counsel, the High Court has never been referred as the other Court.

10. Raja Muhammad Hand Khan, Advocate another amicus curiae, submitted that if section 10(2) of Ehtesab Bureau Act is read with section 21 of the said Act and the bail is refused to an accused under the Ehtesab Act no remedy has been provided for the accused to seek the redressal of his grievance. In such a situation the accused can resort to the general provisions of the Code of Criminal Procedure and if it be assumed that under section 40 of Ehtesab Bureau Act no appeal would lie to the High Court, the powers of High Court under sections 439 and 561-A, Cr.P.C. Remain intact. He in support of his contentions referred to Dil Mir and others v. Government PLD 1959 AJK 61, Asif Ali Zardari v. The State 1991 PCr.LJ 595 and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189. Thus by concluding his arguments Raja Muhammad Hanif Khan contended that the jurisdiction available to the High Court under sections 439, 561-A and 498, Cr.P.C. Shall remain intact.

11. Almost all the amicus curiaes supported the contention that irrespective of the fact that the provisions of sections 10(2), 20 and 40 of Ehtesab Bureau Act have come into field, the High Court still has the vast jurisdiction to redress the wrong. However, Mr. M. Tabassum Aftab Alvi, Advocate, another amicus curiae, contended that under section 10(2) of the Ehtesab Bureau Act the jurisdiction of the High Court stood ousted and the Ehtesab Bureau Act being a special law, would override the general law and even if there be conflict between the latest law and the previous law, the latest law would prevail. He also contended that the inherent powers available to the High Court are to be exercised in exceptional circumstances where no other provision is available to the High Court.

12. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it is deemed expedient to examine the relevant provisions of the Ehtesab Bureau Act which are direct in link with the proposition that calls for determination. Those sections are sections 10(2), 10(3), 20(1), 40(1) and 40(3) of the said Act. The aforesaid provisions may usefully be reproduced below:-- ' "Section 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."

' "Section 10(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."

' "Section 20(1). 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."

' "Section 40(1). 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."

' "Section 40(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."

13. A careful perusal of section 5(2) of the Code of Criminal Procedure would reveal that it is not intended to be all embracing and exhaustive of the criminal procedure. A special Act creating the offences may also create a special forum and a special procedure. Where no such procedure has been provided for, then the normal procedure in the Code shall have the application. In a case under a special law, wherein a complete procedure has been provided for, then the Code would have no application. However, where a special procedure has been prescribed by a special Act only for some matters, then the provisions contained in the Code would be excluded only to that extent and not beyond.

14. The question, in view of the points canvassed on behalf of the parties that now needs determination is whether the provisions of section 10(2) of the Ehtesab Bureau Act operate as a complete bar on the powers of the High Court to exercise power under sections 497, 498, 561-A, 491 and 439, Cr.P.C. The section in the Act, according to the learned Chief Prosecutor, operates as a complete bar of jurisdiction except to the extent of the appellate jurisdiction exercisable after the conviction and an appeal after the acquittal order.

15. 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 light of language in which it is couched. Section 10(2) of Ehtesab Bureau Act has been referred to above. From the language employed, it is pertinent to note that as regards the Code of Criminal Procedure, ouster operates only to the extent of grant of bail to an accused person under the Ehtesab Bureau Act because then reference thereafter relates to no other provisions of the Code. Should the provision, as it is, be taken to mean that the High Court's jurisdiction by virtue of this section in the Act stands completely ousted? No such construction could, in our view, be placed to the section for the simple reason that there are other important provisions conferring much wider powers on the High Court in the matter of grant of bail.

16. Dealing with the similar situation in a case titled Raja Mumtaz Hussain Rathore v. The State PLD 1988 (AJ&K) 33 it was observed that there are indeed other important provisions conferring much 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 it should have been mentioned that "notwithstanding any other provisions in the Code". In the instant case even it has also not been mentioned "notwithstanding the provisions of sections 497 and 498, Cr.P.C. The powers of High Court in granting bail to an accused person have been ousted". It has simply been mentioned that "no Court, except Ehtesab Court, shall have jurisdiction to grant bail to any person accused of any offence under this Act". The language employed in the section is, in our view, clear manifestation of the fact that the Legislature never intended the meanings as has been suggested by the learned Chief Prosecutor Ehtesab Bureau. This shows that the ouster of jurisdiction enjoyed by a Court of equal or parallel jurisdiction appears to have been intended by the law-makers.

17. It is now a settled principle of law that the jurisdiction of superior Courts, if, is intended to be ousted, should be through express and definite provisions and not through mere implications.

Considering the language in which the section is couched, I am of the view that the High Court, in exercise of, its inherent powers under section 561-A, Cr.P.C. Its supervisory jurisdiction under section 498, Cr.P.C., its revisional jurisdiction under section 439, Cr.P.C. And its jurisdiction under section 491, Cr.P.C., can allow the bail, if the ends of justice, in its view, so demand.

18. In Ch. Zahoor Ellahi v. The State PLD 1977 SC 273 the case was registered against the petitioner under the provisions contained in the Defence of Pakistan Rules, 1971. He filed bail petition in Sindh Balouchistan High Court under section 13(1), clause (b), the relevant portion of which reads as under:-- "(b) .... But save as aforesaid and notwithstanding the provisions of the Code, or of any other law for the time being in force, or of 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, the above provision 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:--

(i) that the ouster of the superior Courts' jurisdiction can only be excluded by express, definite and clear terms and not by mere implications;

(ii) that section 13 of the Ordinance was no bar to the inherent powers available to the superior Courts; and

(iii) that it is well-settled principle relating to the consfruction of statutes that the exclusion of jurisdiction of superior Courts is not to be readily inferred; indeed there is a strong leaning against any such exclusion. This rule is deep-seated and if it is to be overturned, it must ordinarily be done by a clear, definite and positive provision not left to mere implication.

' At page 323 of the above referred authority it was observed as follows:- ' "It will be noticed that section 498 is not mentioned in section 13. It will also be noticed that both 'High Court' and 'Court' have been used in the section.

' Section 498 is a Code by itself and deals with the powers of the High Court or Court of Session to grant bail. In the case of Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousuf PLD 1962 SC 465, while dealing with the omission of section 411-A of the Code of Criminal Procedure in Ordinance L of 1962 (Abolition of jurisdiction of High Courts and Supreme Court) it has been observed as follows:-- ' ' As the intention was to refer to the provisions which were being repealed and section 411-A which confers jurisdiction to hear appeals in criminal cases was not referred to there is a reasonable inference that the repeal of section 411-A was not contemplated. In any case this omission raises a doubt as to whether the intention was to abolish the jurisdiction created by section 411-A. ...."

19. In Muhammad Moosa v. State 1986 PCr.LJ 578 the accused facing trial in the Special Court of Sindh (Banks) Karachi for the offences in respect of the Banks (Special Courts) Ordinance, applied for bail but was refused the concession of bail. Then on petition moved by the accused in the Karachi High Cpurt, the question that came to be considered was whether in view of section 10(1) bail could be allowed by the High Court while the matter was still pending before the Special Court.

Section 10 of the Offences in Respect of the Banks (Special Courts) Ordinance, 1984, reads as under:-- "10. Appeals from sentences passed by Special Court, etc.--- (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, but save as aforesaid and notwithstanding the provisions of the Code or of 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 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court."

' It was held that in appropriate cases a Special Court has the jurisdiction to admit a person to bail accused of a scheduled offence. Appeal against the sentence recorded by a Special Court has to be made to the High Court within whose jurisdiction the sentence has been passed. It would; therefore, be anomalous if the trial Court has been empowered to admit an accused to bail and why same power cannot be exercised by the High. Court during the pendency of the case. The High Court has inherent powers under section 498 to admit a person to bail keeping in view the merits of the case. Sections 497 and 498 have not been excluded in section 5(6). Section 10 of the Ordinance would attract after the conviction is recorded. During the pendency of trial the High Court can exercise powers under section 498. There is no specific bar of admitting an accused to bail facing trial before a Special Court as laid down in section 10 of the Ordinance.

20. To B.A. Shaikh v. Azad Jammu and Kashmir Government PLD 1965 AJ&K 43 a case for the offences under the Emergency Powers Act was registered against the petitioner. Incomplete challan thereafter was put up in the Special Court. It was, however, on a request made by the Prosecuting Deputy Superintendent of Police, allowed by the Special Court to be withdrawn. The Special Judge while allowing the withdrawal passed an order of discharge of the accused. Feeling dissatisfied, the petitioner challenged the order by way of revision petition in the High Court claiming therein that the only order that could be passed by the Special Judge was of acquittal and not that of discharge. The objection taken on behalf of the respondent Government was that since the right of revision petition was only available under the Act in case of conviction and sentence, the petitioner having neither been convicted nor sentenced, could not file the revision petition.. It was held that only the right of appeal had been taken away which was converted to a right of revision petition. The petition was, therefore, held competent.

21. In Muhammad Ashraf Khan v. State PLD 1978 AJ&K 8 the petitioners, altogether 15 in number, were arrested for the offences under sections 12 and 13 of the Emergency Powers Act. They applied for bail but without any success. The petitions were then filed in the High Court which were opposed on the ground that section 16-A of the Act was a complete bar to the High Court's jurisdiction. The learned Judge placing reliance on an unreported Full Bench judgment of High Court, held that the High Court had the powers to grant the relief of bail in exercise of its inherent powers.

22. In Anwar Saifullah Khan v. The State and 4 others PLD 2000 Lah. 564 it was held that it is true that under section 9(b) all offences under the National Accountability Bureau Ordinance 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 Code, 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 the Chairman, National Accountability Bureau has been empowered under section 9(c) 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 is "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 but the National Accountability Bureau Ordinance is a subordinate legislation and the High Court had the 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. The High Court has jurisdiction under Article 199 of the Constitution (1973) to grant bail to the accused.

23. As it has been pointed out earlier that after the Ehtesab Act of 1997, the Ehtesab Bureau Ordinance was introduced by the Azad Government of the State of Jammu and Kashmir on 28-7- 2000. Section 10(2) of the said Ordinance reads as follows:-- ' "All offences under this Ordinance shall be non-bailable and notwithstanding anything contained in sections 426, 497 and 498 or any other provision of the. Code 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 any offence. Under this Ordinance."

' In contrast to the aforesaid provision in the Ordinance, the relevant provision contained in section 10(2) of the Ehtesab Bureau Act which was promulgated on 15th January, 2001, provides as follows:- - "(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."

The comparative study of both the Ordinance and the Act shows that the argument advanced by the learned Advocate-General, Raja Shiraz Kayani, is not without any substance that the Ehtesab Bureau Act was passed after due deliberations and discussions at the floor of Assembly and that in section 10(2) of the Ehtesab Bureau Act the words "High Court" have been purposely and intentionally excluded. Even it has not been provided in section 10(2) of the Act that "notwithstanding anything contained in sections 426, 497 and 498 no Court including the High Court shall have jurisdiction to grant bail to any person accused of any offence under this Act".

24. In a case reported as The State v. Matloob Hussain Shah 1983 PCr.LJ 745 it was observed as under:-- ' "It is admitted principle of law that the jurisdiction of the superior Courts cannot be taken away except by express words or necessary implications. A distinct and unequivocal enactment is always required for the purpose of either adding to or taking away the jurisdiction of the superior Courts. It admits of no exception that the jurisdiction of the superior Courts cannot be taken away unless it is done in express words of exclusion."

25. In another case reported as The State v. Syed Qasim Ali Shah 1992 SCMR 2192 it was observed that the jurisdiction of superior Courts could not be abolished or ousted unless the same was done by express, clear and unambiguous words or clear intendment. It was further observed in the said authority that in Suppression of Terrorist Activities (Special Courts) Act, sections 497 and 561-A, Cr.P.C. Which have not been expressly excluded by section 71 of the Act and which are not inconsistent with the provisions of the Act, shall remain available and, therefore, not only section 497, Cr.P.C. But even section 561-A, Cr.P.C. Can be pressed into service in an appropriate case.

26. In a case reported as Allied Bank-of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599 it was observed that if the law-maker had intended to give jurisdiction of granting bail to Special Court and had intended to exclude the jurisdiction of other Courts, it would have clearly mentioned that no Court including the High Court or Supreme Court would have jurisdiction to allow bail in respect of any scheduled offence. Section 497, Cr.P.C. Being basic section, not included in section 10 of the Ordinance which affirms that the law-maker did not intend to restrict the jurisdiction of bail with the special Courts alone. It was further observed at page 170 of the report in a following manner:-- ' "In other respects, however, section 498 occupies the position of a supplementary provision insofar as it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and the police and enables these Courts to exercise the power of anticipatory bail in suitable cases."

' With regard to the question of ouster of power it was observed in the aforesaid authority at page 171 as follows:-- ' "It is recognised principle of law that a claim in respect of the ouster of power of the High Court in respect of any matter or subject available to it under the Codes of Civil or Criminal Procedure cannot be lightly accepted, unless there is a clear, definite and positive provision ousting the jurisdiction. Express words or clear intendment or necessary implication are required to take away the jurisdiction of a High Court or any superior Court."

27. In a case reported as Mrs. Shahida Faisal and others v. Federation of Pakistan and others 2001 SCMR 294 it was observed that the Courts other than Supreme Court were covered under the provisions of section 9(b) of National Accountability Bureau Ordinance, 1999 and as such the Courts including the High Court had no jurisdiction to grant bail. Omission of words "Supreme Court" from section 9(b) of National Accountability Bureau Ordinance, 1999 being significant, the jurisdiction of Supreme Court to grant bail was not barred under the said section. Section 9(b) of National Accountability Bureau Ordinance, 1999 may usefully be reproduced below:-- ' "All offences under this Ordinance shall be non-bailable and notwithstanding anything contained in sections 426, 491, 497, 498 and 561-A, Cr.P.C. Or any other provision of the Code, 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 any offence under this Ordinance." #TS##From the bare reading of this section it is manifest that the Courts other than Supreme Court are covered under the said section for it has been expressly mentioned in this section that Courts including the High Court shall have no jurisdiction to grant bail. The omission of words "Supreme Court" is significant, therefore, the jurisdiction of this Court is not barred to grant bail to such persons.

28. The aforesaid authority positively shows that as it was expressly mentioned in section 9(b) of National Accountability Bureau Ordinance, 1999, that no Court including the High Court had the jurisdiction to grant bail to a person accused of an offence under the National Accountability Bureau Ordinance, 1999, but the Supreme Court had the jurisdiction to grant bail to such an accused. Needless to point out that in the Ehtesab Bureau Act, prevalent in Azad Jammu and Kashmir, the words "High Court" are significantly missing in section 10(2) of the said Act. Therefore, the High Court is not precluded from granting bail to a person accused of an offence under the said Act.

29. It may also be observed that the application for his release on bail was moved by accused- respondent, Mirza Javed Iqbal, under sections 497, 498, 561-A, Cr.P.C. And other provisions of Ehtesab Bureau Act of 2000. In this context the High Court observed that the powers possessed by it and the Court of Session under section 498, Cr.P.C. Are not ancillary and subsidiary to the provisions of sections 496 and 497 but are to enlarge the category of persons to whom bail cannot be granted under sections 496 and 497, Cr.P.C.. Although the question of bail before arrest of the accused-respondent was not before the High Court but since the application was moved on behalf of accused-respondent alongwith other sections and also under section 498, Cr.P.C., therefore, the High Court felt advised to make a reference to the powers conferred upon it under section 498, Cr.P.C. The question that came under the consideration of Supreme Court of Pakistan in Muhammad Ayub v. Muhammad Yaqub and the State 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 Session 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 Muhammad Yaqub Ali, J. Was in favour of proposition while contrary view was taken by. The other Members of the Bench. The view taken by both the learned Judges is reproduced below:-- ' "Per Hamood-ur-Rehman, J.--- Taking into account the context 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 Sessioh 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 salautary 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 indischminate 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 emphasises 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' confers 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."

30. Even under section 439 of the Code of Criminal Procedure the High Court is vested with the revisional jurisdiction to exercise its powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338. Revisional jurisdiction is conferred upon superior Courts to correct miscarriage of justice arising from misconception of law or irregularity of procedure resulting in some undeserved hardship to the individuals. Therefore, whether the interest of justice requires interference for correction of manifest illegality or prevention of gross miscarriage of justice in revisional jurisdiction can be exercised by the High Court. If the order of trial Court is patently illegal and in violation of the provisions of the Act under which it is acting, the High Court is not debarred from exercising its powers to set at naught the orders passed by the trial Court; for instance if a person is booked for alleged commission of offences under the Ehtesab Bureau Act and the order passed by trial Court is patently illegal or against the provisions of the said At or if there be a simple complaint against an accused under the provisions of the said Act but if the charge is groundless or no prima facie case is made out against the accused and he is being kept in custody for indefinite time, the doors of the High Court by exercising its powers under section 439, Cr.P.C. Are not closed. Therefore, I am of the view that even under section 439, Cr.P.C. The High Court was competent to do complete justice and to redress the wrong and to allow bail to an accused.

31. Even under section 561-A, Cr.P.C. The High Court is possessed with inherent powers to check abuse of process of a Court which is extensive in its application and section 439, Cr.P.C. Does not circumscribe its such jurisdiction. The words "nothing in this Code" have been intentionally used by the law-makers to widen the scope of section 561-A, Cr.P.C. The powers possessed by the High Court under sections 435/439, Cr.P.C. Do not impinge, curtail or limit, in any manner whatsoever, the powers under section 561-A, Cr.P.C. The powers under sections 435/439, Cr.P.C. Are independent and jurisdiction can be exercised under section 561-A, Cr.P.C. To prevent the abuse of process of Court or to secure the ends of justice. My aforesaid view stands fortified by reported case title Syed Munawar Ali Zaidi v. Mst. Qaisar Jahan and another PLD 1992 Kar.

104.

32. From the aforesaid discussion, the conclusions that I have reached are as under:--

(i) that the under section 10 (2) of the Ehtesab Bureau Act the powers of High Court have not been ousted to release a person accused of an offence under the said Act;

(ii) that to oust the jurisdiction of superior Courts the provisions of the relevant Ordinance or Act should be clear, definite, unambiguous and admitting of no other interpretation than the one that the ouster of jurisdiction is absolute;

(iii) that in the National Accountability Bureau Ordinance, 1999 the provisions of section 9(b) are clear, unambiguous and definite to the effect that no Court including the High Court shall grant bail to a person accused of an offence under the said Ordinance, whereas in the Ehtesab Bureau Act of 2000, prevalent in Azad Jammu and Kashmir, the words ' High Court' are conspicuously missing which clearly implies that the jurisdiction of the High Court has not been ousted to release an accused person on bail or to admit him to bail;

(iv) that the High Court has even the Constitutional jurisdiction to issue an appropriate writ under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and can also pass an order of bail under the said Constitutional provision. The Constitutional provisions empowering the High Court to release a person on bail cannot be taken away by subordinate legislation;

(v) that even if it be assumed that the jurisdiction of the High Court was limited and the appeal was competent to the High Court against a final order of conviction or an acquittal order, the powers of revision, superintendence and control of the Courts subordinate to the High Court are available to the High Court and the same have not been ousted by the Ehtesab Bureau Act;

(vi) that the High Court is also empowered under section 561-A, Cr.P.C. To quash an order which is an abuse of the process of the order of any Court subordinate to the High Court;

(vii) that if an appeal was barred under section 40(3) of the Ehtesab Bureau Act and the same was only available against the final order of conviction or against the acquittal order, an application for grant of bail to the High Court under sections 497, 498, 439 and 561-A, Cr.P.C: was not barred by the provisions of the Ehtesab Bureau Act; and

(viii) that as the provisions of the Code of Criminal Procedure apply mutatus mutandis to the proceedings before the Ehtesab Court, except to the extent of inconsistency, therefore, any order which was patently illegal or in violation of the provisions of the Act could have been set at naught by the High Court in exercise of its revisional jurisdiction or its jurisdiction under section 561-A, Cr.P.C.

33. In the light of what has been stated above, I find no fault with the impugned order passed by the Full Bench of the High Court. Therefore, the appeal having no merits in it stands dismissed.

Before parting with the judgment, I express my gratitude for the valuable assistance rendered by all the amicus curiaes and the learned counsel who appeared for the parties.

(Sd.) Muhammad Yunus Surakhvi, J.

ORDER OF THE COURT In view of the difference of opinion the judgment of the High Court shall be deemed to be the judgment of this Court within the meaning of section 42 subsection (13) proviso 1st of the Azad Jammu and Kashmir Interim Constitution Act, 1974.