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Petitioner: ABDUL KHALIQUE VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Salahuddin Mirza, Abdul Rahim Kazi, Syed Sajjad Ali Shah Title: ABDUL KHALIQUE vs THE STATE Case No.:Criminal Appeals Nos. 49, 19, 61, 73, 74, 75, 76, 87 and Miscellaneous
Application No,545 of 1990 Date of Judgment:1990-08-09 Reported As: PLD 1990 Karachi 448 Result: Reference answered Judgment ORDER SAJJAD ALI SHAH, C. J.--Question for consideration before the Full Bench is correct interpretation of section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, (hereinafter to be referred for the sake of brevity as Terrorist Act of 1975) on the point whether appellate Court is competent to hear application for bail and suspension of sentence in spite of specific bar contained in that section excluding passing of any order under section 426, Cr.P.C. In the case law in support of proposition that Division, Bench of High Court is competent to grant bail, latest decision is of Division Bench of this Court in the case of Ubedullah v. The State reported in 1989 P Cr. L J 626. It is held, therein that while hearing appeal, High Court has power to grant relief which is ancillary or incidental to the appeal but such power may not be construed to mean that bail or suspension of sentence is to be granted as a matter of course but a very special exceptional case has to be made out. Reliance is placed on the case of Mirza Jawad Beg v. The State reported in PLD 1975 Karachi 628, in which judgment is authored by Mr. Justice Dorab Patel (as he then was). In the judgment of Jawad Beg's case reliance is placed on two Supreme Court cases namely (1) The Commissioner Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242 and (2) The Sindh Employees' Social Security Institution and another v. Adamji Cotton Mills Limited PLD 1975 SC 32. Need was felt to re-examine this question in detail for the reason that in both Supreme Court rulings mentioned-above, special laws under consideration providing forum of appeal were silent on the point as to whether interim relief could be granted or not, hence it was held that in the absence of express bar or exclusion, such power was available in the said special laws impliedly as power to grant interim relief is incidental and ancillary to the hearing of the appeal. As against that
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in the instant case in section 7 of the Terrorist Act of 1975 there is express bar to the effect that during hearing of the appeal order under section 426, Cr.P.C. For grant of bail or suspension of sentence cannot be passed. There are eight Criminal Appeals pending in the High Court in which appellants have been convicted for scheduled offences under the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975, and they have filed applications for grant of bail during hearing of appeals as is envisaged under section 426, Cr.P.C. During hearing of these Bail Applications difficulty was felt and necessity had arisen to constitute larger Bench. Apart from Advocates who are appearing in these appeals, on our request three senior and eminent Advocates namely M/s. Khalid M. Ishaque, A.Q. Halepota and Muzaffar Hussain Shah assisted the Court as Amicus Curiae. Since the question before this Bench is of construction of section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, it would be helpful for the sake of familiarisation to go into the back ground of that special law. Generally speaking framing of special law is contingent upon two eventualities. Firstly, when on account of new development, new law is to be framed because on that subject there is no law already in existence. Secondly, on that subject there is law already in existence but the intention of legislature is to expedite the proceedings by simplifying the procedure and for that purpose necessity arises for creating Special Courts. In this context, it seems, Suppression of Terrorist Activities (Special Courts) Act was promulgated in 1975, setting up Special Courts for trial of offences, which are scheduled including offences under Pakistan Penal Code, Explosive Substances Act, 1908 and some offences under the provisions of Arms Ordinance, 1965, Railways Act, 1890, Telegraph Act, 1885, Aircraft Rules, 1937. Defence of Pakistan Rules, and Prevention of Anti-National Activities Act, 1974, specifically so mentioned in the said schedule. Preamble of the Terrorist Act is stated in clear words that the intention of the legislature is to make special provisions for the purpose of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherence of or in connection with such acts. Under section 3 of the said Act, Special Court is constituted by Notification of the Federal Government, to be presided over by a person, who has been or is qualified to be Judge of the High Court or has, for a total period of not less than three years, exercised powers of Sessions Judge or Additional Sessions Judge under the Code. Under section 4, jurisdiction is conferred upon Special Court for trial of scheduled offences. Under section 5, procedure is prescribed for Special Court as to how cognizance of a scheduled offence is to be taken. In this context, three things are worth mentioning. Firstly, that Special Court is not bound to adjourn any trial unless adjournment is unavoidable. Secondly, if there is change in composition of Special Court, it will not be bound to recall or rehear witnesses who have already given evidence and, thirdly, that trial can proceed before Special Court in the absence of accused after his first appearance and the special Court can order so, if satisfied that absence of accused is deliberate or behaviour of accused in the Court is such that his removal is ordered. With regard to the bail, it is provided that an accused person shall not be released on bail by Special Court or by any other Court if there appear reasonable grounds for believing that he has been guilty of 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. In section 8, burden of proof is shifted to the accused; if he is found to be in possession of or has under his control any article or thing which is capable of being used for, or in connection with, the commission of such offence, or he is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence. Lastly, it may be mentioned that section 7 provides that a person sentenced by a Special Court shall have a right of appeal to the High Court and further express bar is provided that no order can be passed under section 426, Cr.P.C. Which
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confers power on Appellate Court to grant bail or suspend the sentence. This section also provides that appeal is to be heard by not less than two Judges of the High Court. It would be pertinent at this stage to reproduce verbatim section 7 of the Terrorist Act as it stood in 1975 before any amendment was made in it: "Appeals from sentences imposed 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. (2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court. (3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court." Now, I come straight to Jawad Beg's case PLD 1975 Karachi 628. In this case, decision was given in the year 1975 before any amendment was made in the Suppression of Terrorist Activities (Special Courts) Act, 1975. At that time subsection (2) of section 7, as it stood without any amendment, provided that appeal shall be preferred to the High Court within 30 days of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court. There were two contentions before the Court in Jawad Beg's case. One was that there was express bar in section 7 providing that no order could be passed under section 426, Cr.P.C., as such during hearing of appeal in the High Court, bail cannot be granted as such power has been taken away expressly. The opposite contention was that during hearing of appeal power to grant bail was available regardless of express bar in respect of section 426, Cr.P.C. In support, it was argued that section 7 is divisible into two parts, which are separated by words "save as aforesaid". First part deals with right of appeal to the High Court and second part specifies powers which "no Court" can exercise with regard to any proceedings of the Special Court including passing any order under section 426, or section 491 or section 498 of the Code. Contention was that "no Court" would not include Appellate Court because both parts of section 7 are divided by words "save as aforesaid". It was further submitted that if it was not so, then powers to hear appeal as provided in the first part would be subject to the restriction imposed in second part to the effect that no Court shall have authority to revise such sentence. Other restrictions in the second part are that no Court can transfer any case from a Special Court or make any orders under sections 426, 491 and 498 of the Code. The Court in Jawad Beg's case traced legislative history to Special Criminal Court Ordinance No,II of 1942 and held that language used in section 7 of the Terrorist Act of 1975 is ambiguous for the reason that it is copied from section 26 of the Special Criminal Courts Ordinance of 1942. Discussion and finding of the Court on that point in the case of Jawad Beg's in the relevant paragraph at page 635 of the report is reproduced as under:-- "But the similarity, on which the learned counsel for the State relied, is between the second part of subsection (1) of section 7 of the said Act and section 26 of the 1942 Ordinance. I would first observe that this second part- is separated from the first part by the words: 'but save as aforesaid and'. Then, after these words, the second part of the subsection is an almost verbatim reproduction of section 26, and even the grammatical structure of the sentences in the two provisions is identical. I have deliberately used the word 'almost', because as submitted by the learned counsel for the State, section 26 did not contain any express reference to sections 426 and 498 of the Code, and, according to the learned Advocate-General and the learned Additional Advocate-General, this
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express reference to sections 426 and 498 manifested, beyond any doubt, the intention of the Legislature to deprive the Division Bench of all powers of granting bail. As to this comparison of the sections, I would add that our Legislature has also dropped the reference to appeals, which preceded the words 'no Court' in section 26. However, whilst dropping this reference, it has, nonetheless, copied the words 'no Court' from section 26, and they create an ambiguity, because they are hardly an apt way of referring to the Division Bench. However, if the matter had rested here, in all the circumstances discussed, I would have accepted the contention of the State Counsel. But they overlooked another difference between the two provisions under comparison. Section 7 expressly excludes the power of transfer, which was not contained in section 26. But this provision shows that the Legislature intended to curtail the powers of Courts other than the Courts created under the first part of subsection (1), and, in these circumstances, although the matter is far from clear it seems to me that the Legislature copied the language of section 26, because it intended to follow that section. Thus, the history of the section is fatal to the submission of the learned Advocate-General and the learned Additional Advocate-General." In the said judgment, on the question of construction of section 7 of the Terrorist Act, 1975, the learned Judge while coming to the conclusion at page 636 of report has observed that legislature has inserted the words "save as aforesaid" and such words have been inserted not merely to separate the two parts of subsection but to make it clear that the powers of the Courts set-up under the first part of subsection (namely the Division Bench) shall not be curtailed by the restrictions contained in second part of the subsection. It was further, observed that any other construction would render the words "save as aforesaid" redundant. In the conclusion, it was said that the matter is not free from doubt but section 7 has not taken away the power of the Division Bench to grant bail to an appellant in an appropriate case. In the judgment of Jawad Beg's case, further reliance is placed on three cases. First case is Emperor v. Banoari Lal Sarma and others AIR 1943 FC 36. Reference was made to this case only to show that Special Criminal Courts Ordinance, 1942, was amended in 1943 because some provisions of that Ordinance had been struck down as ultra vires by the Federal Court in that judgment and since those amendments had no relevance with construction of section 7 of the Terrorist Act, no further reference was made to that case. Second case referred in the said judgment is Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242. Question for consideration in the case of Sarki was whether Commissioner, who was acting as Appellate Authority, under West Pakistan Control of Goondas Ordinance, 1959, could suspend operation of the impugned order, without an express provision to that effect in that Ordinance. Under section 18 after hearing appeal, Commissioner could discharge the person complained against or dismiss the appeal or modify the order in such manner as deemed fit. It was held, that power to suspend the impugned order was ancillary to the power conferred upon Commissioner by section 18 to discharge person complained against on final adjudication. It was so done for the reason that section 18 of the Ordinance was silent about suspension of the impugned order and there was no express bar. Third case referred is Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. Reported in PLD 1975 SC 32. Similar question in that case was whether a Social Security Court having seizin of an appeal under section 59 of West Pakistan Employees' Social Security Ordinance, 1965, has, in the absence of an express provision, jurisdiction to stay execution of order appealed against. It was held, that power to grant interim relief was reasonably incidental or ancillary to the main appellate jurisdiction. It is very clear that in both the Supreme Court cases mentioned above in the special laws power of appeal was there, which was, however, silent about interim relief, hence it was held, that such power of interim relief was available impliedly because it was incidental and ancillary to appeal
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and was not expressly barred. In support of the view stated above, reliance was placed on Legal Maxim, "Cui jurisdictio data est, ea quoque concesa esse videntur, sine quibus jurisdictio explicari non-potuit" mentioned in section 2 on the subject of implied powers in Maxwell On Interpretation of Statutes Eleventh Edition giving meaning of the maxim as, that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. On the same principle by analogy it can be said that even under section 9, C.P.C. It is provided that the Courts shall have jurisdiction to try all suits except when the jurisdiction is expressly or impliedly barred. This shows that general principle is that the Court must assert its jurisdiction unless it is expressly barred. As against that, right of appeal is creature of statute and must be expressly granted. It is held, in the case of Smt. Ganga Bai v. Vijay Kumar and others reported in AIR 1974 SC 1126 that a suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and, therefore, an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. This shows that for the purpose of power and function forum of appeal will have to depend an whatever powers are specifically given by the statute. If some powers which are incidental in nature are not specifically conferred their availability can be implied but this cannot be done if such powers are expressly barred. In short, it can be said that in appeal, whatever is expressly barred, cannot be impliedly achieved. Principle enunciated in two Supreme Court cases mentioned above cannot be invoked with benefit while considering construction of section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, for the reason that the said Act while giving power of appeal to the Division Bench of the High Court has expressly barred grant of bail under section 426, Cr.P.C., which is the only power to the High Court for grant of bail during pendency of appeal. Section 7 of the Terrorist Act of 1975 is not similar or analogous to other special laws in the Supreme Court cases mentioned-above in which special laws are silent with regard to interim relief and contain no express bar. Law making is the function of the legislature and interpretation of the laws is the function of the Courts. If legislature wants to promulgate special law setting up a forum for appeal and not giving it power to grant interim relief, it can do so provided such intention is manifestly expressed barring such relief. If legislature does so and withhold interim relief in express terms, then there is no gain- saying that such intention cannot be attributed to the legislature because such power of interim relief is ancillary or incidental to the appeal. Such inference can be made only when special law is silent about interim relief and no mention about it is made therein. When legislature specifically provides express bar, then it is to be assumed that legislature has done so purposely and with full awareness. Reference can be made to section 21 of the Sindh Rented Premises Ordinance, 1979, which provides appeal to the High Court against the final order of the Rent Controller subject to the proviso that no injunction shall be granted, if appeal has been preferred from order passed under section 14 of this Ordinance. This question came up for consideration in the case of Azad Bin Haider v. Adam Khan PLD 1981 Kar. 225 and it was held, that intention of legislature is very clear that High Court can hear appeal but cannot grant stay in appeal arising from order passed under section 14 of that Ordinance as such natural inference follows that appeal is to be disposed of promptly without loss of time. That being so, it appears that everything depends upon legislature and the way in which intention is expressed to exclude or not grant of relief. In view of what is stated above, it can now be said that in Jawad Beg's case, decisions of the Supreme Court relied upon are distinguishable and are not of much help. In the absence of case law, conclusion on the construction of section 7 of the Terrorist Act is given for reasons and comparison made with section 26 of Special Criminal Courts Ordinance, 1942. Conclusion is stated at page 636 of the report in following words:--
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"Accordingly, whilst I repeat that the matter is not free from doubt, in my humble opinion, section 7 has not taken away the power of the Division Bench to grant bail to an appellant in an appropriate case. However, if I am wrong, even according to the learned Advocate-General and the learned Additional Advocate-General, the curtailment in section 7 is of the powers of the Division Bench under section 426 of the Code, therefore, if the Division Bench has a power of granting interlocutory relief independently of the provisions of the Code, obviously this power would not be affected by the restrictions, or the alleged restrictions, contained in section 7. The learned counsel for the State naturally submitted that the Division Bench did not have any independent or implied power of granting bail, but Mr. Khalid M. Ishaque's submission was to the contrary. I will now examine this submission, and, as this submission was based only on the judgments of the Supreme Court, I would now examine them." It would be pertinent to mention here that when observation was made in the above said judgment to the effect that if Division Bench has power of granting interlocutory relief independently of the provisions of the Code, obviously this power would not be affected by restrictions contained in section 7, what was in the mind of learned author Judge was Constitutional jurisdiction. At the end of the Judgment in Jawad Beg's case, it was held, that applications are maintainable (for bail) but no attempt was made to examine them on merits for the reason that learned counsel for the State had requested to decide legal objections before bail. It would not be out of place to mention here that Mirza Jawad Beg was convicted under the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975, and was sentenced to R.I. For seven years. During pendency of the appeal in the High Court, he applied for bail and his application was disposed of on legal points stated above, but he was not granted bail. Against the judgment on bail application on legal points, as stated above, State filed petition for leave to appeal in the Supreme Court being aggrieved against the finding on interpretation of section 7 of the Terrorist Act, but Supreme Court declined interference vide order dated 3-6-1975, on the ground that there was no operative part of the order as only abstract question of law was answered. Subsequently, his appeal was dismissed by the High Court and he filed petition for leave to appeal in the Supreme Court, where leave was granted and he was released on interim bail. After that appeal was allowed by the Supreme Court and his conviction and sentence were set aside and in consequence he was set at liberty. Now I come to interpretation of section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 as argued by the counsel before this Bench. Mr. Abdul Ghafoor Mangi, AA.-G. Sindh, argued that since abovementioned Terrorist Act is special law and is free from any ambiguity as such ordinary, meaning is to be given to the words used in it. According to him, there is no ambiguity in section 7 of the said Act and intention is very clear that right of appeal is given to the two Judges of the High Court minus powers under sections 426, 498 and 491, Cr.P.C. According to him, literal construction is to be given to section 7 which is very clear on the point of intention and section 426, Cr.P.C. Is expressly barred. He has further submitted that at the most section 7 is to be construed in the light of the fact that the said Act is special law and, further, all other provisions and preambles of the Act are to be read conjunctively in order to ascertain as to what is the policy of the legislature behind passing of this special law. According to him, whatever has been stated by way of reasoning in the case of Mirza Jawad Beg with regard to the interpretation of the words "save as aforesaid" in section 7 of the said Act, still nothing turns on express exclusion of section 426, in second part of that section which shows that appeal can be heard but bail cannot be granted during the hearing of the appeal. It was further submitted by him that in section 7, there is provision that appeal is to be filed within 30 days and the appeal is to be disposed of within 3 months and that is why the grant of bail during pendency of appeal is expressly barred because
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intention of legislature is that the appeal is to be disposed of expeditiously without any loss of time and within 3 months. It is further, submitted by him that legislature was quite aware…
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