1. The applicant was granted interim bail before arrest vide order dated 19-9-2002. His case has come for confirmation or otherwise.
2. Learned D.A.-G. Has not opposed the application on merits but has raised two-fold contention, firstly that this Court has no jurisdiction to grant bail before arrest in view of section 12 of the Ordinance, 1984, which has overriding effect; secondly the propriety demands that the applicant should have approached the trial Court, which has concurrent jurisdiction. To support his contention, the learned D.A.-G. Has referred the judgment recorded by the Supreme Court in C.P.L.A.
3. No,192-K of 1996, wherein the observation was made that "opportunity should always be given for exercise of such discretionary jurisdiction to the lower Court first. There is no cavil with the proposition but the rule is of propriety and not of law. So far as the jurisdiction of this Court to grant bail before arrest is concerned, Mr. Rasheed A. Razvi, has placed a Division Bench case viz. Abdul Majeed v. The Judge Special Court (Offences in Banks)
4. (1985 PCr.LJ 890), wherein it was observed that:-- "It is not conceivable that the Spcial Court trying the case has the power to grant bail subject to the restrictions contained in subsection (6) of section 5 of the Ordinance but the Appellate Court does not possess any such power. The basic provision for the grant of bail is section 497, Cr.P.C. The words 'a Court' has been mentioned in said section. If the law-maker intended to give jurisdiction of bail only to the Special Court and had intended to exclude the jurisdiction of superior Courts, he would have mentioned that no Court including the High Court or Supreme Court' shall have jurisdiction to allow bail in a scheduled offence. Since the Special Court has been given the parallel power of a Court of Session, therefore, section 498, Cr.P.C. Finds place in section 10 of the Ordinance and the jurisdiction of the Sessions Judge has been ousted in the matter of bail before arrest in a scheduled offence under the Ordinance. It would be significant to note that section 497, Cr.P.C.
5. Which is the basic section for bail, has not been included in section 10 of the Ordinance. If the law- maker intended to keep the jurisdiction of bail with the Special Court only, he would not have mentioned the words 'by any other Court' in subsection (6) of section 5 of the Ordinance." Similar situation was addressed by the Supreme Court in Allied Bank of Pakistan v. Khalid Farooq 1991 SCM R 599. Relevant paras. 14 and 15 are reproduced as under:- "14. With regard to the powers of the High Court and the Court of Session vis-a-vis sections 496, 498 of the Code, the principle laid down by the Court in Muhammad Ayub's case (supra) requires recapitulation. According to the judgment of S.A. Rehman, J., which is the leading judgment and was concurred by Cornelius, C.J. And Fazl-e-Akbar, J., and which therefore, constitutes the majority judgment, the place of section 498 of the Code and its interaction with section 497 have been dealt with in the following words: The word 'appears' in sections 496 and 497 need not be construed include voluntary appearance, even in circumstances of grave apprehension of arrest. This word may be taken to have been used in sections 496 and 497, in the same sense as in section 242 or 252 of the Code, which obviously contemplate appearance in answer to a process issued by a Court. This interpretation will have the merit of saving section 498 in its own right. The position that emerges then would be that under sections 496 and 497, Criminal Procedure Code, the Court can bail out a person only if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the police, or by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested. Section 498, however, would be called in aid before the Court of Session and the High Court even where the Court is seized directly of the proceedings in question and where no actual arrest has been made so far but anticipatory bail is asked for, e.g. Where the case is still at a stage of investigation by the police or is pending in a subordinate Court. The power to grant such anticipatory bail would thus be confined to the High Court and the Court of Session and other Courts would be excluded from its scope. This interpretation would seem to be consistent with the use of general expression like 'in any case' and 'any person' in section 498. The High Court or Court of Session would also of course have concurrent as well as revisional powers, in respect of orders by the police or the subordinate magistracy, in the matter of bail, under section 498 read with sections 496 and 497." The learned Judge further stated: "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." The words 'a Court' in section 497 of the Code do not mean a trial Court. If the intention had been to restrict the section to the trial Court, the words 'trial Court' would have been used. It is only because of the words 'a Court' that the Duty Judge or Magistrate grants bail to an accused, even though he is not the trial Court, when the accused is produced before him for remand. It is thus clear that under section 497 of the Code the jurisdiction of the High Court and the Court of Session is attracted where there has been an actual arrest inviting its jurisdiction or any of these Courts are seized of the proceedings directly and that section 498 of the Code is attracted where no actual arrest has been made, but anticipatory bail is prayed for, irrespective of the fact whether these Courts' are seized of the proceedings or not, which power, however, is not available to the subordinate Courts.
15. With regard to the question of ouster of power, it is a recognized principle of law that a claim in respect of the owner 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. In Zahoor Elahi v. The State PLD 1977 SC 273, this Court has held that it is a well-settled principle relating to the construction of statutes that the exclusion of jurisdiction of superior Courts is not to be readily inferred, that there is a strong leaning against any such exclusion, that this rule is deep seated and if it is to be overruled, it must ordinarily be done by a clear, definite or positive provision, not left to mere implication. In this case the Supreme Court was considering the effect of section 13(1) of the Defence of Pakistan Ordinance of 1971, and rule 210 of the Rules framed thereunder and held that the High Court's jurisdiction to admit to bail persons under section 498 of the Code was not ousted. There are other cases as well which need not be referred, it being sufficient to state the principle."
6. In view of the settled proposition of law, the contention raised by the learned D.A.-G. Is not sustainable. Consequently, the same is overruled. The interim bail granted to the applicant is confirmed. He is allowed to remain on bail on the same terms.