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Petitioner: ZAFAR IQBAL VS Respondent: THE PROVINCE OF SIND AND 2 Other
Court Name: Sindh High Court Judge(s): Fakhruddin G. Ibrahim, Tufail Ali A. Rehman Title: ZAFAR IQBAL vs THE PROVINCE OF SIND AND 2 Other Case No.: Constitutional Petitions Nos. 353, 362, 367, 374, 382 and 389 of 1972 Date of Judgment:1972-09-07 Reported As: PLD 1973 Karachi 383 Result: A.
JUDGMENT
JUDGMENT TUFAIL ALI A. RAHMAN, C. J.----On the 1st of September 1972, we heard arguments at some length on applications made for ad interim bail in Constitution Petitions Nos. 353, 362, 367, 374, 382 and 389 of 1972, each of which was a petition challeng--ing the validity of the detention of one or more persons either under the West Pakistan Maintenance of Public Order Ordinance, 1960 or the Defence of Pakistan Rules made under the Defence of Pakistan Ordinance, 1971. 2. Being doubtful of our jurisdiction to grant bail, pending the decision of a petition under Article 201 of the Interim Constitution, we invited counsel to satisfy us first that we had power to do so. Mr. Khalid M. Ishaque, who appeared in four of these petitions took upon himself, with the consent of the other counsel the main burden of attempting to pursuade us that we had the power to pass the orders which were sought. He contended, to start with, that these were really petitions for the writ of habeas corpus and that, since in England the Judges have always held that there is jurisdiction, pending the hearing of a petition, to grant bail it must necessarily follow that this Court also has similar powers. In support of the contention that, in England at least, there is such power counsel relied upon Halsbury's Laws of England, 3rd Edition, Vol. II, paragraph 92 which may usefully be reproduced "92. Custody pending hearing.-Upon the return and the production of the party on whose behalf it was issued, the authority under which the original commitment took place is suspended, and, until the case is finally disposed of, the custody of the prisoner is under the control and direction of the Court to which the return is made. The prisoner is detained not under the original commitment, but under the authority of the writ. Pending the hearing the Court has power, even after the return is filed, to remand the prisoner to the prison where he is in custody or to any other place of
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commitment and to bring him up from time to time by rule of Court until he is either bailed, discharged, or remanded. The Court also has power to bail the prisoner de die in them pending the argument as to the sufficiency of the return to the writ." To our mind, however, there are various reasons why we cannot accept the contention that either the powers of this Court or the procedure is the same as that obtaining in England. In the first place all thecae petitions purport to be petitions under Article 201 of the Interim Constitution which embodies the provisions conferring what is generally but somewhat loosely described as the writ jurisdiction of the High Courts. The Article is couched in language identical, with minor and immaterial exceptions, with that of Article 98 of the 1962-Constitution which is its immediate statutory predecessor and it may, therefore, properly be said that the law as embodied in this Article has been in force ever since the promulgation of the 1962-Constitn--petition up to now. It will be noticed that the Article does not use the word "habeas corpus" or refer to any of the well known high prerogative writs, and, indeed, the Article was intended to replace earlier constitutional enactments where, by express provision, the power of issuing such writs had been conferred. Except for the jurisdiction limited territorially and otherwise of the Chartered High Courts. The power of granting writs was conferred upon the High Courts for the first time by section 223-A of the Government of India Act, 1935; this section, however, for reasons which need hardly be detailed in this order was held to be invalid but a similar power was incorporated by Article 170 in the 1956-Constitution. Article 170 did indeed use the words, among others, "writ" and "habeas corpus". Even in this Article, however, one might note that it was not actually the power of issuing the writs of habeas corpus, but writs in the nature of habeas corpus that was conferred. The precise language of Article 170 was as follows: "170. Notwithstanding anything in Article 22, each High Courts shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part II and for any other purposes." Despite the purported abrogation of the Constitution in October 1958, the country continued to be governed as nearly as may be in accordance with that Constitution until the promulgation of the 1962-Constitution by reasons of the Laws (Continuance in Force) Order. 1958; paragraph 27, after providing so much, expressly stated that the Supreme Court and the High Courts should have the power to issue the writs of habeas corpus and others. The words "in the nature of" appearing in Article 170 of the 1956-Constitution were omitted. Whether the omission was deliberate or otherwise it is not necessary to examine just now; suffice it to say that until the promulgation of 1962-- Constitution the High Courts had the power of granting the writ of habeas corpus or at least of granting a writ in the nature of habeas corpus. The deliberate departure in language in Article 98 of the 1962-Constitution, to which, as I have said, the Interim Constitution adheres, at least suffices to make it clear that what is now being exercised by the High Courts is a power stated in express language and not one to be discovered from the law of England, common or statutory. If this were all, these applications would be rejected on the short ground that the High Courts no longer have the power to issue writs of habeas corpus and, therefore, none of the powers which are ancillary to those writs. 3. Learned counsel contended, however, that the power of granting writs of habeas corpus is statutorily conferred upon the High Court by a different provision of law, namely section 491 of the Criminal Procedure Code. We do not think it would be a satisfactory way of disposing of this argument merely to say that the present applications do not purport to be under section 491 because that power is in any case available to this Court and, if it was a mere question of technicality we should certainly permit counsel even on an oral motion, to amend the petitions so as to make them petitions under section 491, Cr. P. C. It is necessary, therefore, to examine whether
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the contention that section 491 does confer the power of granting the writ of habeas corpus, or at any rate the power of granting bail pending the disposal of an application under that section, is correct. 4. It was argued for this purpose that, inherent in the power of the Court of passing a final order in any given proceedings, is the power by way of an interim order to pass a similar order to subsist till the disposal of the main petition. Since subsection 1(b) of section 491 expressly authorizes the High Court to direct that a person illegally or improperly detained fn custody be set at liberty, it was argued that the Court, must of necessity, have the power, pending such an order to direct that the person concerned be released on bail and, in added support of the argument, reliance was also placed upon rule 9 of Chapter IV-F of the High Court Rules, which have been framed under section 491 of the Criminal Procedure Code. In order to appreciate the argument it would be of advantage to reproduce both section 491 and the rule in question :- (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; (b) that a person illegally or improperly detained in public or private custody within such limits be set a liberty; (c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into In such Court; (d) that a prisoner detained as aforesaid be brought before a court-martial or any Commissioners for trial or to be examined touching any matter pending before such court-martial or Commissioners respectively; (e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and (f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment. (2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section. (3) Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation, 1818 . . . . . Or Bombay Regulation XXV of 1827, or the State Prisoners Act, 1850, or the State Prisoners Act, 1858, or the Security of Pakistan Act, 1952. Rule 9 of Chapter IV-F.-Upon the return and the produc--petition of the party on whose behalf the rule was issued, the custody of the prisoner shall be under the control and direction of the Court until the disposal of the rule. Pending the hearing, the Court may admit the prisoner to bail or remand him to the prison where he is in custody." 5. It is difficult to see how section 491 may well be construed as granting the power of issuing writs although the power which it grants is certainly, in many respects similar to the power that may be exercised by the issue of such a writ. If it was the A intention of the Legislature to confer upon the High Court the actual power of granting a writ of habeas corpus nothing could have been easier than for the Legislature to have said so. Instead, the Legislature has in some detail specified the exact powers that the High Court may exercise; so detailed a statement of the powers could hardly have been necessary if it was intended to confer all the powers that go with the writ of habeas corpus. As against that it is clear that certain powers which a Court granting writ of habeas corpus undoubtedly possesses, as is evident from the passage from Halsbury that has been quoted above are not conferred, and, therefore, we think, by necessary implication excluded. Nor do we consider valid the argument, some--what faintly advanced, that the reason for not expressly conferring the power of issuing a writ of habeas corpus was that the Legis--lature thought it undesirable to use an expression which could not be understood except by reference to English law. Chapter XXXVII of the Code of Criminal Procedure in which section 491 is the first and only section, is entitled
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"Directions of the nature of a habeas corpus". The Code of Criminal Procedure was enacted in the year 1898 and, by that time, the High Courts had long been established in India, which could in, however limited a territory, enforce the writ of habeas corpus. Indian lawyers could hardly, therefore, be presumed to by so ignorant of the expression 'habeas corpus' that it was necessary, only on that account to avoid the use of the phrase. In the very same section the Legislature did use In clause (f) of subsection (1) the expression "Cepi Corpus" which also is understandable only by reference to English law and was, as much as the writ of habeas corpus itself, available only in a limited area. Finally the very fact that the chapter is headed, not "habeas corpus" but "directions of the nature of habeas corpus" we think it makes it entirely clear that section 491 was intended to confer a power very similar to that exercisable by a writ of habeas corpus but not to attach to that power necessarily all the ancillary powers normally attaching to that writ nor necessarily the procedure which governs the issue of such writs. We have, therefore, no hesitation in holding that section 491 confers statutory powers and not generally the power of issuing a writ of habeas corpus and any power of passing interim orders would have to be gathered, if gathered at all, from the language of section 491 and not from any preconceiv--ed notion of powers which are to be found as being implied in or ancillary to the power of issuing a writ of habeas corpus, 6. Although we have come to this conclusion as to the meaning of section 491 upon the language of the section itself without recourse to authority the conclusion is in fact supported by case-law. For Instance in the case of Kishori Lal v. The Emperor (I L R 1945 Lah. 573) it was argued that successive applications could be maintained under section 491 to different Judges of the same High Court but the argument was rejected. The same argument was also rejected by a special Bench of the Bombay High Court in Malhari Ramuji v. Emperor (AIR 1948 Bom, 326) which follows the earlier Lahore case. Clearly, if all the incidents of the writ of habeas corpus are attracted by reason of section 491 then the argument that was rejected in these two cases was well founded. 7. The argument of rule 9 of Chapter IV of the High Court Rules is, we think, entirely without substance and can be dealt with shortly. The Rule has been made in purported exercise of the powers granted under subsection (2) of section 491 to regulate the procedure In cases under this section and cannot confer higher power than exists in the section itself. If, therefore, B the power can be implied from the language of section 491 recourse need not be had to the rule; on the other hand if section 491 does not suffice to imply such a power the rule itself would be ultra vires and of no avail to learned counsel, who indeed conceded as much. 8. The larger argument that inherent in the power of granting a final order Is the power of granting a similar interim power pending disposal of the proceedings we have no hesitation in accepting and indeed will have need to revert to this argument In another context later on. It is, however, we think, more correct to say that such a power is to be implied from the main power rather than that it is inherent in the main power. Where powers are conferred by statute it is, we think, impossible to say that any power, not expressly conferred, is inherent in the given power unless it is in fact a part of that power itself or absolutely necessary to the exercise of the main power. The rule that the power is implied is, however, a somewhat different thing. For to say that it is implied is to mean that the statute would be construed to include such a power unless it is expressly refused or by necessary implication excluded. The real question, therefore, is whether section 491 does so exclude, since it does not expressly refuse its section 491 (1) in as many as five clauses details the powers conferred upon the High Court, including the power to direct that a prisoner within the appellate criminal jurisdiction of the High Court be removed from one custody to another for the purposes of a trial. In the face of such detailed provisions we find it difficult to say that the power of granting ball can be implied from the general power of directing that the person improperly detained be set at liberty. Undoubtedly the power claimed is not a necessary power In the sense that the Court will find it impossible or even difficult to exercise the final power unless it was also
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authorized to exercise the interim power. We, therefore, have come to the conclusion that section 491 does not confer any power, by implication, to grant bail to the detenu pending disposal of his application under section 491. We have not been shown nor have we our--selves been able to find any reported case in which the question has been decided or even canvassed. In fairness, however, we must say that one of us at least recollects some cases in which such an order has been passed but without a consideration of the question whether there is power to do so. Reliance on these cases even if we could find it would, therefore, be useless. 9. Mr. Khalid Ishaq next argued that the power is to be found in any case either in section 496 or section 498, Cc. P. C. We have fund it impossible to accept this argument on the fundamental ground that the whole of the Criminal Procedure Code applies generally only to the investigation, trial and procedure relating to offences including such matters as appeal, revisions and so forth. Section 5 of the Criminal Procedure Code is in these terms: --- "5 (1). All offences, under Pakistan Penal Code shall be investigated, inquire into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." Subsection (2) of section 1 of the Criminal Procedure Code is again worded in the following language: "Subsection (2) of section l.--It extends to the whole of Pakistan but, in the absence of any specific provision to the contrary, nothing herein contained shall affect, any special or local law in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." 10. It would seem to us, therefore, that the Criminal Pro--cedure Code applies, firstly to the investigation and trial of all offences under the Penal Code, secondly to the investigation and trial of offences under any other law and finally, to matters for which it expressly provides even though they may not be covered F by the first two classifications. Expressly, however, It is made subject to any special or local law then in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. Sec--tions 496 to 498 appear in Chapter XXXIX of the Code and there is nothing whatever in that chapter to indicate that it has any application except during the investigation or trial of offences. We, cannot, therefore, agree with Mr. Khalid Ishaq that because section 496 starts with the expression : "When any person other than a person accused of a 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", it applies in the present cases because on our orders the detenus are now before the Court. Nor can we, upon the basis of the same reasoning, agree that because section 498 gives powers to the High Court or to the Court of Session "in any case" it applies to all persons irrespective of the fact whether they are accused persons or not, convicted persons or not, so long as they are persons under some form of restraint. As we shall see there is considerable amount of authority against Mr. Khalid Ishaq's contention including authority which is binding on us, but, even treating the argument which was advanced before us, if led to its logical conclusion, would yield some very startling result. Section 496, for example, confers no discretion on a Court nor is it confined to powers given to the High Court. It empowers any Court and even a Police Officer to release a person on bail indeed it requires that such an officer or Court to release him. Tile result would be, therefore, that, not merely this Court but even a Court subordinate to this Court, not only may but shall release a datenu since he is not accused of a non-bailable offence. Again, if section 498 is to be Inter--preted as widely as it is now contended before us, not only this Court but also the Court of Session is authorised to
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grant bail in any case, i.e. Even to a person who is not accused of any offence. The whole purpose and concept of bail is the release of s person upon some security, pending the disposal of some proceedings and the amazing result of accepting the arguments now advanced be--fore us would be that these detenus must now be released without reference to any proceedings and, since there are no proceedings as such pending against them before any Court or other tribunal, this would mean that they must be released finally. We cannot but think that this would be entirely to stultify not merely the purpose of the orders of detention but also the purpose of sec--petition 491 or that part of Article 201 of the Interim Constitution which authorises this Court to examine the legality of the custody of a person in detention. Such an argument based upon the language of a provision in a Code, not itself intended to apply to these proceedings generally, we must totally reject. 11. In a number of cases and since a very long time it has been held that these provisions of the Criminal Procedure Code do not apply in the case of persons sent up before special Tribunals specially not for trial for specified offences but in order to adjudi--cate whether orders of a certain kind, particularly preventive could or should properly be passed against them. We will refer first to a case decided as early as 1911 by the Sind Judicial Com--missioner's Court, namely Inspector v. Ghulam Kadir (5 S L R 105) in which E. M. Pratt, J. C. Stated at page 106 of the Report as follows :- "The terms of section 498 are no doubt very wide but they are controlled by section 1(2) of the Cede. Under that section in the absence of a specific provision to the contrary nothing in the Code shall "affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force. The Sind Frontier Regulation is a special and local law con--ferring special jurisdiction on the District Magistrate and laying down a special form of procedure. The provisions of the Code of Criminal Procedure cannot therefore be invoked in order to control the proceedings of the District Magistrate." We have referred to this early case although there are much more modern cases and cases of higher authority for special reasons. It was at one time thought that section 498 of the Criminal Procedure Code confers upon the High Court very wide power neither restricted by nor in any manner to be construed by reference to section 497 of the Criminal Procedure Code. Since then the Supreme Court has settled this question authoritatively and this is not the plate to enter upon any discussion of that question. What we are emphasizing is that even when the earlier view was held it was not found possible to exercise a power under section 498 in a case of this kind. 12. Coming to more modern cases it was decided in Allauddin v. State (168 P Cr. L J 92) that a person complained of under section 6 of the Karachi Control of Disorderly Persons Act, 1952 was not an accused person and could not, therefore, lay claim to the provisions of section 496, 497 or 498 Cr. P. C. For the pur--poses of asking for bail. 13. Again in the case of Gahena v. The State (PLD 1968 Lah. 1266) a Division Bench held similarly in the case of persons against whom proceed--ings had been filed under the West Pakistan Control of Goondas Ordinance, 1959. In a passage which is worth quoting Mr. Justice Sardar Mohammad Iqbal held that the words "in any case" used in section 498 are not applicable ; at page 1270 the learned Judge observed: --- "The words "in any case" used in section 498, Cr. P. C. Are applicable to a case to which the Code of Criminal Procedure is applicable, and obviously if a case is beyond the scope and purview of the Code, to that section 498 would not be attracted. In subsection (2) of section 1 of the Code, it is provided that the Code extends to all the Provinces of Pakistan; but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed,
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by any other law for the time being in force". The words in the absence of any specific provision to the contrary' in section 1 (2) mean and contemplate a provision specific in affecting the special or local law. It means that there may be specific provision in the special or local law that the Cr. P. Code will apply to the proceedings under the Act. If it is not so provided, Cr. P. Code will not apply. Unless it can be said that there is specific provision in, the Code itself saying that it shall apply to the special or local law. Thus, in order that Cr. P. Code should be made applicable to the proceedings of a special/local law, it is necessary that there should be either a provision…
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