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Petitioner: MEHER GUL VS Respondent: MEMBER, BOARD OF REVENUE III, QUETTA AND 4 Other
Court Name: Balochistan High Court Judge(s): Zakaullah Lodi, Abdul Qadeer Chaudhry, Muhammad Jaffar Naim Title: MEHER GUL vs MEMBER, BOARD OF REVENUE III, QUETTA AND 4 Other Case No.:Criminal Revision No. 6 of 1968 Constitutional Petitions Nos. 6 of 1980 and
JUDGMENT
Reported As: PLD 1982 Quetta 103 Result: Petition accepted Judgment JUDGMENT MUHAMMAD JAFFAR NAIM, J.-This petition has been filed to challenge the order of the Member, Board of Revenue (respondent No. 1), dated 27-7-1981 whereby bail was granted to respondents Nos. 2 to 5. The facts leading to the filing of this petition are that one Adam Khan son of the petitioner had been murdered on 20-12-1980 and one Shah Gul was injured. A report was lodged by Faqir Muhammad and the petitioner filed a complaint for offences under section 302/307, P. P. C. In the Court of the Assistant Commissioner, Barkhan on 27-12-1980. The Naib-Tehsildar Barkhan started investigation and arrested respondents 2 to 5. The Naib-Tehsildar submitted his report on 18-2-1981 to the Assistant Commissioner which is Annexure `C'. Before the Naib-Tehsildar submitted this report, the petitioner made an application to the Deputy Commissioner that one Ismail may also be arrested. On the basis of this application, the Assistant Commissioner issued warrant of arrest of Ismail Khan after he received the file from the Deputy Commissioner. The respondents Nos. 2 to 5 and Ismail Khan submitted applications to the Additional Commissioner for grant of bail which was rejected by order dated 10-5-1981. The respondents Nos. 2 to 5 moved an application before the Member, Board of Revenue who allowed the application by the impugned order. The M. B. R. Also mentioned in his order dated 27-7-1981 that the provisions of section 498(2) of Criminal Procedure Code were also attracted. 2. The petitioner has challenged the order of Member, Board of Revenue inter alia on the grounds that the Member, Board of Revenue has no powers to entertain application for bail directly; that the cognizance of the offence had not been taken when the Member, Board of Revenue had exercised
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the powers; that the Member, Board of Revenue has assessed the evidence on the case in a manner as to give decision of the whole matter and that the Member, Board of Revenue could not transgress the limitations imposed by section 497, Cr. P. C. 3. Since one of the points raised by the petitioner was of great importance as it involved the determination of the question of Jurisdiction of the Deputy Commissioner under t h,,, p. Of --ions of Criminal Law (Special Provisions) Ordinance, 1968 vis-a-vis the powers of the Court under the Criminal Procedure Code, members of the bar were invited to enlighten us on this aspect of the case. Majority of the gentlemen of the bar were of the view that the powers of the Deputy Commissioner under section 16 of the said Ordinance are only exerciseable after cognizance has been taken under the provisions of section 4 of the said Ordinance and before that, proceedings would be controlled by the provisions of the Criminal Procedure Code thus ousting the jurisdiction of the Deputy Commissioner up to that stage Mr. Aslam Chishti however contended that the powers of the Deputy Commissioner under section 16 of the Ordinance are not dependent upon the cognizance under section 4 of the Ordnance and the Deputy Commissioner has powers to grant bail even before cognizance of the offence is taken. 4. The counsel of the petitioner Mr. Basharat Ullah was also of the view that the Deputy Commissioner and officers in that hierarchy were not competent to grant bail under the provisions of the Ordinance unless cognizance had been taken by the Deputy Commissioner under section 4 of the said Ordinance. Before going for other grounds taken by the petitioner in this petition I would like to deal with this aspect of the case which is a matter of some importance because it will go n long way to remove doubts as to the jurisdiction of various Courts in places where Ordinance No. II of 1968 is in force. 5. The provisions regarding bail under Criminal Law (Special Provisions) Ordinance, 1968 are contained in section 16 of the OiAlua11ce which is reproduced below for ready reference .- "16. Bail.-(1) A scheduled offence shall be bailable or non-bailable according as the same is bailable or note-bailable under the Code of Criminal Procedure, 1898 (V of 1898) and the Deputy Commissioner shall have the same powers o; granting bail to a person or persons accused, of an offence as a Court has under that Code. (2) The President of a Tribunal may in regard to a case referred to the Tribunal for decision under section 5, exercise the power of the Deputy Commissioner under this section," According to section 16 the powers of bail have been granted to the Deputy Commissioner in subsection (1) and to the President of the Tribunal in subsection (2). Subsection (11 is relevant in this case A scheduled offence shall be bailable or non-bailable as the same is bailable or non-bailable under the Criminal Procedure Code and the Deputy Commissioner has been given the same powers to grant bail to a person of persons accused of an offence as a Court. Two expressions accruing to subsection (1t of section 16 are significant "a court" and "a person accused of an offence". The provisions as to the power given to the Deputy Commissioner are explicit and extent of powers can be gathered from the same and nothing has been left to conjecture or surmise. The powers which are available to a court for granting bail are available to the Deputy Commissioner also and which are ascertainable from sections 496 and 497, Cr. P. C. And such legislation by reference is one of the recognized modes of Legislature. The only question is as to when the Deputy Commissioner becomes competent to exercise those powers. It will be pertinent to reproduce sections 496 and 497, Cr. P. C. : "496. In what cases bail to be taken.-When any person other than a person accused of a non- bailable offence is arrested without warrant by an officer in charge of a police station or appears or is brought before a Court, and is produced at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail;
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Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided; Provided further, that nothing in this section shall be deemed to affect the provisions of section 107, subsection (4) or section 117, sub. Section (3).---' "497. When bail may be taken in cases of non-bailable offence.-(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years: Provided that a person accused of an offence punishable as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released; Provided further that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: Provided further that the Court shall except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail; (a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded ; or (b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt the accused shall, pending each inquiry, be released on hail, or, at discretion of such officer or Court, on the execution by him of bond without sureties for his appearance as hereinafter provided. (3) An officer or a Court releasing any person on bail under subsection (1) or subsection (2) shall record in writing his or its reasons for so doing. (4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if be is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered. (5) A High Court or Court of Session and, in the case of a person released by itself, any other court may cause any person who has been released under this section to be arrested and may commit him to custody." Now I take up the term "person accused of an offence". This expression has the same meaning as it has in sections 496 and 497, Cr. P. C. By virtue of subsection (2) of section 2 of the Ordinance which reads as under : "2(2). Words and expressions used in this ordinance but not herein defined shall have the meanings assigned to them in the Pakistan Penal Code (XI V of 1860) and the Code of Criminal Procedure, 1898 (V of 18118)." The question is to what the term "accused of an offence" signifies. It was examined by their Lordships of the Lahore High Court in the case of Noor Muhammad v. Commissioner, Sargodha Division PLD 1968 Lah. 1441. The relevant observation is in paragraph 12 of the judgment and it is "these words are clearly of a comprehensives nature so as to include the case of any person against whom an allegation or charge regarding the omission of any scheduled offence has been
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made irrespective of the facts whether his case is sent up to a court under section 173, Cr. P. C. Or not. This case was in respect of a scheduled offence within the meaning of West Pakistan Criminal Law (Amendment) Act of 1963 but there is an unambiguous analogy. I am in respectful agreement with the observation and a different interpretation is not possible. Once it is assumed that the meaning of expression "an, person accused of an offence" includes a person in respect of whom report has been made to the Police or complaint has been filed and before investigation has started the case of that person would be covered under the expression "accused of an offence" occurring in section 16 of the Ordinance as well. 6. As will be seen in sections 496 and 497 this expression "person accused of an offence" bailable in the case of section 496. Cr. P. C. And non-bailable in the case of section 497, Cr. P. C. Has been used. These two sections of the Criminal Procedure Code are applicable to a matter of bail even before the final report under section 173, Cr. P. C. Is submitted by the Police. Under the provisions of Criminal Procedure Code a court takes cognizance of an offence under section 190, Cr. P. C. And powers of granting bail are given to the Court even before cognizance is taken. These two Sections also give powers to officer in charge of a police station to enlarge a person accused of an offence on bail. By introducing the phraseology of sections 496 and 497 into the provisions of section 16 of the Ordinance II of 1968 what we get is that powers of granting bail to a Court are independent of the cognizance and cover all those cases of persons against whom there is any charge, report or allegations of commission of an offence. No embargo can be place on the powers given to the Deputy Commissioner in this behalf and the preamble of the Ordinance will not be applied to curtail the powers when the provision has no ambiguity. 7. The next expression is the word "Court" used in sections 496 and 497, Cr. P. C. As well as section 16 of the Ordinance. It is pertinent to note that powers of granting bail under sections 496 and 497 are given either to a Court or to the officer incharge of a police station. The word "Court" occurring in these two sections means the court competent to try the offence. This expression would not have a different meaning when it occurs in section 16 of the Ordinance. The Deputy Commissioner has been given the same power as a court has under the provisions of Cr. P. C. And these provisions are sections 496 and 497, Cr. P. C. Section 16 carries al those powers to the Deputy Commissioner which are available to a Court under sections 496 and 497. No interpretation can be placed on the provisions B of section 16 of the Ordinance to substract from the powers which have been given by legislation by reference. Where Criminal Procedure Code grants powers to a Court even before submission of a final report under section 173 these powers cannot be denied to the Deputy Commissioner. It follows therefore that the Deputy Commissioner, can grant bail even before the cognizance is taken under section 4 of the Ordinance. Interpretation of the provisions of section 16 of the Ordinance in a different manner would result in a situation that the Deputy Commissioner who is competent to take cognizance of a scheduled offence has no powers to grant bail while the police officer investigating the case has such powers. This proposition would be. Ridiculous and could not be the intention of the Legislatures. 8. Further Mr. Aslam Chishti urged in this behalf that by the recent amendment by the amending Ordinance No. XIV of 1979, the Criminal Law (Special Provisions) Ordinance, 1968 was amended and following words are added in subsection (2) of section 15 of the main Ordinance. This subsection after the amendment is now as under : "who shall have the same powers in respect of investigation of a scheduled offence as the Police have under the Criminal Procedure Code, 1898." His argument was that State Levies Force would have the powers of enlarging the accused on bail and yet the powers are not exercisable by the Deputy Commissioner. We are unable to agree with this argument since amendment does not give the powers of granting bail to the State Levies Force. Only, State Levies Force have been given powers of a police officer for the limited purposes
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of investigation of a scheduled offence. It will also be seen that powers under sections 496 and 497, Cr. P. C. Are exerciseable by officer incharge of a police station and not by every police officer. The State Levies Force therefore do not possess powers similar to those which are available to an Officer Incharge of a Police Station under sections 496 and 497, Cr. P. C. 9. Some advocates including the Assistant Advocate-General have also urged that the 7sition has since been changed by the amendment incorporated in subsection (l of section 4. Two new provisos have been added after the proviso which existed. This new provisos are as under : "Provided further that the Deputy Commissioner or Political Agent may direct an inquiry or investigation to be made by such other person as he thinks fit for the purpose of ascertaining truth or falsehood of a complaint and such other person shall for the purpose of the said inquiry or investigation exercise all the powers conferred by the Code of Criminal Procedure, 1898 on an Officer Incharge of the Police Station; Provided also that if the result of inquiry/investigation indicates that no offence has been committed the Deputy Commissioner or Political Agent, may instead of making reference to Tribunal dismiss the complaint." By these provisos the Deputy Commissioner has been authorised to refer the matter for investigation or inquiry to such other persons as he thinks proper where the case has been filed on a complaint. By virtue of the second proviso he has been empowered to dismiss the complaint if it is found that no offence has been committed. This provision is in fact equivalent to and identical with the powers of Magistrate under section 202, Cr. P. C. By introduction this provision now it is now incumbent upon the Deputy Commissioner to refer a case to the Tribunal even it the complaint does not disclose commission of an offence. The introduction of the proviso does not affect the competency of the Deputy Commissioner and his powers under section 16 of the Ordinance. There will hardly be any need left now to consider the question as to when the Deputy Commissioner takes cognizance of the offence. However in this behalf observations of Anwar-ul-Haq, J. In case of Ali Sher v. State PLD 1970 Kar. 790, are pertinent. If an application for grant of bail is considered by the Deputy Commissioner, he shall be deemed to have applied his mind and to have taken the cognizance of the case. In this behalf paragraphs 12 and 13 of the said judgment are relevant; "(12) Respectfully following the above interpretation of the phrase "taking cognizance", it seems to me that the moment a case involving the alleged commission of a scheduled offence is placed before the Deputy Commissioner, and he takes judicial notice of the facts constituting such offence the case is drawn into the ambit of the Ordinance for the reason that the Deputy Commissioner has taken cognizance thereof within the meaning of section 4 of the Ordinance. The act of constituting a Tribunal under section 5 of the Or(`. We is subsequent to the taking of cognizance by the Deputy' Commissioner and cannot be regarded as condition precedent, as suggested by the learned counsel for the petitioner. It is significant that section 4 of the Ordinance is identical with section 190 of the Code of Criminal Procedure, which contemplates three modes in which cognizance of an offence can be taken by a Magistrate, upon receiving a complaint of the facts constituting such offence, upon a report in writing of such facts made by a Police Officer or upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed. No formal act has necessarily to be performed by the Deputy Commissioner to show that he has taken cognizance of the offence; what is necessary is that the relevant facts constituting the offence have come to his judicial notice or knowledge by the case having been submitted to him in any of the prescribed modes. (13) Now, in the present case it is admitted that the Nazim and Magistrate of the First Class; exercising the powers of the Deputy Commissioner, had very much taken judicial notice of the relevant facts by applying his mind to the question of granting bail to the petitioners. Such a question could not have arison before him unless he had taken, cognizance of the case."
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On these premises as well the Deputy Commissioner would be competent to entertain application for bail report is submitted by the Police in the form of a challan. 10. The question of powers of the Deputy Commissioner for grant of bail had also been considered by a Division Bench of this Court in Criminal Revision No. 6/68 (State v. Syed Fazal Hussain Hashmi) on 7th June, 1968. In that case as well their Lordships had not denied jurisdiction to the Deputy Commissioner under section 16 of the Ordinance. It was held that the Deputy Commissioner had not got the exclusive jurisdiction to grant bail. That was a case where the Sessions Judge had granted bail in a case for a scheduled offence. Revision was filed by the State which was dismissed and it was held that the Sessions Judge also had the jurisdiction and there was nothing in the Ordinance to exclude the jurisdiction of the Courts under the Criminal Procedure Code. 11. Under section 16 of the Ordinance Deputy Commissioner has been given the same jurisdiction as that of the Court but the jurisdiction of the ordinary Courts under the Criminal Procedure Code has not been taken away as has been done under section 3 of the Ordinance in respect to the trial of a scheduled offence. The result would be that in cases the Deputy Commissioner exercises the powers under section 10 of the Ordinance at any stage of the case either during the stage of investigation, inquiry or after taking cognizance the order would be one . Made under the Ordinance: This will not be questionable in any Court. Section 28 of the Ordinance excludes the jurisdiction of all Courts from questioning the proceedings or orders made under the Ordinance. Once the order is made by the Deputy Commissioner under section 16 whether granting bail or rejecting bail an application in that behalf cannot be made to any Court under sections 496 and 497, Cr. P. C. Or to the High Court or Court of Session under section 498, Cr. P. C. Since this very fact of considering the matter of grant of bail or rejecting such application would be an order under section 16 of the Ordinance. Same view was taken in the case of Ali Sher v. State. 12. Some members of the bar have also referred to the preamble of the Ordinance which reads as under : "Preamble.-Whereas it is necessary to make special provision for trial of certain offenses in certain areas of West Pakistan to meet the special requirements of those areas." Their contention is that the scheme of the Ordinance and the preamble point out that the Ordinance deals with only trial of certain offences and this is an indication that powers under Criminal Procedure Code are applicable throughout. The investigation and till cognizance is taken under section 4 of the Ordinance. This is not so. Preamble can be resorted to where there is any doubt as to the interpretation of a statute but it cannot be used to control the provisions of a statute where there is no ambiguity or uncertainty. All offences under Pakistan Penal Code are to be investigated and tried in accordance with the provisions of Criminal Procedure Code according to section 5(1), Cr. P. C. All Penal Code offences are scheduled offences and all scheduled offences are cognizable offences. "Cognizable" under the Ordinance has the same meaning as given in clause (f ) of section 4 of the Criminal Procedure Code by virtue of section 2(4) of the Ordinance. Criminal Procedure Code under section 152 deals with cognizable cases and section 115 deals with non-cognizable cases. Police Officer cannot investigate a noncognizable offence without the order of the Magistrate of the First Class end Second Class while under the provisions of Ordinance II of 1968 no such orders are required. This is a deviation from the provisions of the Criminal Procedure Code which means that the provisions of the Ordinance also to certain extent control the provisions of Cr. P. C. As regard investigation. Moreover, the powers of investigation of all cases have been given by' the Ordinance to the State Levies Force which would not have been available to them except by the amendment made by amending Ordinance XIV of 1979. These factors show that there has been a departure and something has been taken away from the provision 6f subsection (1) o section 5 and section 155 (2) of the Criminal Procedure Code in those areas where Ordinance II of 1968 is in force and
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amended procedure has been prescribed. It therefore could not be urged that Ordinance II of 1968 is applicable only to the trial and has no application before cognizance is D taken under section 4 of the Ordinance. The preamble of the Ordinance also could not mean. To restrict the powers of the Deputy Commissioner under section 16 of the Ordinance. Preamble has to be used to find out the intention of the Legislature where there is any ambiguity or intention cannot be gathered otherwise. The intention of the Legislature in section 16 of the Ordinance is obvious and so preamble will not be used either to take way the powers of the. Deputy Commissioner specifically given or to curtail it to the extent that such powers are exerciseable after cognizance ha been taken. If such powers were intended to be exerciseable by the Deputy Commissioner after the cognizance had been taken it could have been so expressed as in the case of the powers of the President given in subsection (2) of section 16 which is as under : "16.-(2) The President of a Tribunal may in regard to a case referred to the Tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section." The President is given powers in the matter of granting bail after reference has been made to the Tribunal. In the…
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