| Decision |
MUHAMMAD HALEEM, C. J.-Leave to appeal was granted to consider among others, whether the rule laid down by the Peshawar High Court in Jabeen Baha v. Said Mian Sherzada and 2 others (P L D 1986 Pesh. 127) is attracted to this case. The appeal arises from the order, dated 5th May, 1986 of the revisional authority, namely the Additional Secretary, Home Department, Government of N.-W. F. P., cancelling the bail of the appellant. A criminal case was registered at Police Station, Hingora against the appellant in respect of offences under sections 419, 420, 468 and 471, P. P. C. The facts which led to the filing of this report were that the appellant along with two others collected Rs. 27,000 from Sher Malik for sending him and the others for employment to Saudi Arabia. In this connection a promise was given that the visas would be obtained within a month. As the matter lingered on for almost two and a half years without any result, the complainant became frustrated and lodged the F.1. R. The appellant was taken into custody. In the first round of litigation, he was allowed bail by the Commissioner, but later it was cancelled by Additional Secretary, Home Department, as a revisional authority. The writ petition challenging that order was also dismissed by the Peshawar High Court, Peshawar. While in detention the appellant became seriously ill. He thereupon moved an application for release on bail on medical grounds which was rejected by the Ilaqa Magistrate by order, dated 25th of February, 1986. This application was repeated before the Additional Commissioner, Malakand, and he was allowed bail. However, Sher Malik, respondent No. 2 herein, applied to the Additional Secretary for the cancellation of bail which was accepted by order, dated 5th of May, 1986 and his bail was cancelled. Thereupon, the appellant challenged this order through a writ petition in the Peshawar High Court, Peshawar, but did not succeed as it was also dismissed not only on the ground that the Additional Secretary had jurisdiction to cancel the bail, but also that there was no case on merits for the grant of bail. In granting jurisdiction to the Additional Secretary, the High Court held that in the earlier petition the case of Mst. Jabeen Baha and 2 others v. Said Mian Sherzada and 2 others, was considered and the plea of absence of jurisdiction was repelled by the High Court which finding has assumed finality. We have perused the earlier judgment of the High Court, but we do not find that this case was, at all, considered. The argument raised was that as the order of the Commissioner under section 23(4) of the Provincially Administered Tribal Areas Regulation (hereinafter referred to as 'the Regulation') was final, therefore, the Additional Secretary had no jurisdiction to refuse it under section 24 of the Regulation as the revisional authority. Reference to Regulation I of 1975, i.e., Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation, 1975, shows that it applies to the Provincially Administered Tribal Areas of Chitral, Dir, Swat including Kalam and Malakand Protected Areas. By section 3, the scheduled offences are exclusively triable under the provisions of this Regulation and by section 4, it is the Deputy Commissioner who has exclusive jurisdiction to take cognizance of the offence triable under this Regulation which is committed within his jurisdiction. By section 5, the Deputy Commissioner is empowered to constitute a Tribunal in accordance with section 6 and refer the question of guilt or innocence of the person accused of a scheduled offence to the decision of such Tribunal. Sections 6, 7, 8, 9, 10 and 11 deal with the constitution of the Tribunal, the decision on the reference, quorum, procedure before the Tribunal, powers of the Tribunal and the action to be taken on the question referred to the Tribunal under section 5 of the Regulation. Section 12 deals with punishment. Section 15 refers to the offence being cognizable or non-cognizable as according to its label under the Code of Civil Procedure, 1898. Section 15-A was inserted by Regulation IV of 1976 promulgated on 29th of December, 1976. This deals with the entrustment of the investigation in a cognizable case and empowers the Officer-in-Charge of the Police Station to complete it within a certain period subject to its extension by the District Magistrate to a maximum of 10 days. Section 16 deals with the powers of the Deputy Commissioner to grant bail. Section 23 deals with appeals against a decision, sentence or order, and lastly section 24 deals with the powers of the Government as a revisional authority. For the purposes of the disposal of this appeal, it would be appropriate to reproduce sections 4, 5, 16, 23 and 24 of the Regulation "4. Cognizance of offences.-(1) The Deputy Commissioner shall have exclusive jurisdiction to take cognizance of an offence triable under this Regulation committed within the district to which he is so appointed for the time being ; and such cognizance may be taken by him - (i) in respect of offences falling under Part I of the Schedule, - (a) upon receiving a complaint of facts which constitute such offence; or (b) upon a report in writing of such facts made by a police officer ; or (c) upon information received from .any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed ; and (ii) in respect of an offence falling under Part II of the Schedule, upon receiving a written request from persons mentioned in clause (b) of subsection (1) of section 3 Provided that cognizance of an offence under section 14 shall not be taken except upon a complaint made by the husband of the woman, or in his absence, by some persons who had the care of such woman on his behalf at the time when such offence was committed. (2) When the Deputy Commissioner takes cognizance of an offence under sub-clause (c) of clause (i) of subsection (i ), he shall, before constituting a Tribunal under section 5, inform the accused that he is entitled to have the case decided by another Deputy Commissioner, and if the accused, or any of the accused if there be more than one, objects to the case being decided by the Deputy Commissioner who has so taken cognizance of the offence, the matter shall be reported to the Commissioner, who shall transfer the case to another Deputy Commissioner and the Deputy Commissioner to whom the case is so transferred shall proceed in the manner provided in section 5. (3) Where a person is accused of more offences than one and any such offence is not an offence triable under this Regulation, the Deputy Commissioner shall proceed in accordance with the provisions of this Regulation only in respect of the offence or offences which are so triable. (4) Subject to section 32, where it appears to any Magistrate, Court or other authority, enquiring into or trying offence that such offence is an offence triable under this Regulation, such Magistrate, Court or authority shall stay further proceedings in respect of such offence and refer it to the Deputy Commissioner for proceeding in accordance with the provisions of this Regulation. 5. Question of guilt or innocence to be referred to Tribunal. -The Deputy Commissioner taking cognizance of an offence triable under this Regulation shall constitute a Tribunal in accordance with section 6 and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such Tribunal. 16. Bail.-(1) An offence triable under this Regulation shall be bailable or non-bailable according as the same is bailable or nonbailable under the Code of Criminal Procedure, 1898 (Act V of 1898), and the Deputy Commissioner shall have the same powers of 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 powers of the Deputy Commissioner under this section. 23. Appeal.-(1) Any party aggrieved by any decision given, sentence passed or order made, by the Deputy Commissioner under this Regulation may, within thirty days of such decision, sentence or order, prefer an appeal to the Commissioner. Explanation.-In computing the period of thirty days mentioned in this sub-section the day on which the decision, sentence or order sought to be appealed against was given, passed or made, and the time requisite for obtaining a copy thereof, shall be excluded. (2) The Commissioner shall not confirm, modify, alter or set aside any decision, sentence or order appealed against except after giving the parties an opportunity of being heard. (3) The Commissioner may, in deciding an appeal under subsection (1), exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure; 1898 (Act V of 1898), and may also enhance any sentence Provided that no sentence shall be passed by the Commissioner in such appeal which the Deputy Commissioner could not have passed under this Regulation. (4) The decision of the Commissioner on appeal under this section shall be final. 24. Revision.-(1) Government may, at any stage, call for and examine the record of any proceedings pending before, or disposed of by, a Commissioner, Deputy Commissioner or Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order given, passed or made, or as to the regularity of any such proceedings and may, when calling for such record, direct the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record Provided that nothing herein contained shall be deemed to authorize Government to vary or set aside a finding of a Tribunal on a question of fact where such finding has been accepted by the Deputy Commissioner unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice. (2) Government may, after examining any record called for under subsection (1), and giving the parties an opportunity of being heard, pass such orders as it may think fit: Provided that no sentence shall be passed by Government in the exercise of its powers under this subsection which the Deputy Commissioner could not have passed under this Regulation." It will be seen that in section 24 of the Regulation, the words `any proceedings` are used in conjunction with the words pending before, or disposed of by, a Commissioner, Deputy Commissioner or Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order. The question for consideration is as to what meaning the words `any proceedings` convey, which occur not only in this section but also in section 3(2) of Regulation. Do they also include proceedings initiated by a bail application or not ? In Mst. Jabeen Baha's case, it was held while construing the word "proceedings" that the order passed by the public functionaries at different levels were at the stage when the case was not submitted to the Deputy Commissioner for taking cognizance under section 5, and, therefore, that matter was still at the investigation stage and the proceedings could not be said to have commenced under the Regulation so as to give jurisdiction to the revisional authority to pass an order under section 24. In holding so, the High Court observed: "We are, therefore, of the view that Government can exercise revisional jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order given, passed or made in the proceedings conducted by the Commissioner or the Tribunal, or as to the regularity thereof, and no power appears to vest in Government under section 24 of the said Regulation to hear revision petition in respect of an order passed by the Deputy Commissioner or the Commissioner when the proceedings in the case have not yet started." However, the High Court conceded jurisdiction to the Deputy Commissioner to grant bail in a case which was not brought under the Regulation, and also in appeal a relief of the bail by the Commissioner in the absence of the word "proceedings" in section 23 of the Regulation. The reason given by the High Court was that the legislature wisely did not include this word in the section so as not to deprive an accused person from getting relief of bail in an appropriate case when it was at an investigation stage. In a nutshell, the High Court held that the word "proceedings" becomes meaningful only with cognizance of the scheduled offence by the Deputy Commissioner. It was then that an order of bail could be regarded as having been passed in the proceedings in the case. This interpretation, however, gives to this word a restricted meaning irrespective of the consideration as to the text of the section itself. The High Court, however, failed to notice the earlier Full Bench case Khaista Gul v. Muhammad Azim (1981 P Cr. L J 238), while deciding this case, where the word "proceedings" was interpreted in a wider sense. In Khaista Gul v. Muhammad Azim, a Full Bench case, the question for consideration was whether the Courts under the Code of Criminal Procedure were empowered to grant or cancel bail in respect of offences triable under Regulation I of 1975 as amended by Regulation IV of 1976. In this connection, the scope of the word "proceedings" came to be considered and it was held as under: "It is thus clear that the word `proceeding' cannot be taken in a restricted or limited sense to include only the actual trial of an offence where evidence on oath is recorded. In our view the word `proceeding' as used in the Regulation is very wide and covers powers and acts which a Court or a tribunal may do or may have power to perform. The steps taken from the filing of application for bail and whatsoever is done by the forum, does, in our opinion, fall within the meaning of the word `proceeding' under subsection (2) of section 3 of Regulation of 1975." The Full Bench also considered the case of Ch. Zahoor Elahi v. The State (P L D 1977 S C 737) in the context of the exclusion of jurisdiction and held that in the absence of any provision excluding the jurisdiction of the High Court under Chapter XXXIX of the Code of Criminal Procedure, the Court could grant bail in respect of offences triable under the special law. We entirely agree with the interpretation of this word by the Full Bench so as to cover steps taken for bail as within the connotation of the word "proceedings". A reading of section 16 of the Regulation will make it amply clear that the Deputy Commissioner enjoys the same powers of granting bail to a person accused of an offence as a Court under the Code of Criminal Procedure, that is, that during the course of investigation, the accused is entitled to bail provided he makes out a case for its grant. This conferment of power is by reference to legislation irrespective of any assumption of jurisdiction under section 4 of the Regulation and must be given full effect. The word `proceeding` is defined in Black's Law Dictionary as meaning - "any application to a Court of Justice, however, made, for aid in the enforcement of rights, for redress of injuries, for damages, or for any remedial object." This meaning was adopted for interpreting the word `proceeding` in section 153 of the Code of Civil Procedure in the case of Pallipurayil Asan Kutti v. Mukkolakkal Koyaman Kutti (A I R 1937 Mad. 342) which followed the earlier decision in the case of Govindaswami Mudaliar v. Rasu Mudaliar (P L D 1977 S C 273). In Zahoor Elahi v. State (P L D 1977 S C 273) a question among others arose, as to whether the High Court has jurisdiction to grant bail in the context of section 13(1)(b) of the Defence of Pakistan Ordinance XXX of 1971, in which the word "proceedings" was used. It was held that it includes all matters connected with, or ancillary to, trial of a person charged before a Special Tribunal) including an application for bail. In Karim Bibi v. Hussain Bakhsh (P L D 1984 S C 344) the question for consideration was as to the meaning to be given to the word "proceedings" in section 3(2) of the Law Reforms Ordinance, 1972 and the Law Reforms (Amendment) Act, 1972. And the meaning assigned to it in the case reported as Jan Muhammad and another v. Home Secretary, West Pakistan and others (P L D 1968 Lah. 1455) was approved. It is as under :- "The term `proceedings` is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A `proceeding` would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment." In Ganga Naiceen v. Sundaram Ayyar, (A I R 1956 Mad. 597) a question arose as to the interpretation of section 87(2) of the Madras Court Fees Act, and it was contended that an application for a copy could not be regarded as a "proceeding", and in this context the word "proceeding" came to be construed and it was held that the word "proceeding" can be given a narrow or a wider import depending upon the nature and scope of an enactment in which it is used and in the particular context of the language of the enactment in which it appears. This is a well-settled rule of interpretation to determine the meaning of the word and the object behind it is to give effect to the legislative intent. In Muhammad Ismail v. The State (P L D 1969 S C 241) Hamoodur Rahman, C. J., formulated the rule in the following words: "The purpose of construction or interpretation of statutory provisions is no doubt to ascertain the true intention of the Legislature, yet that intention has, of necessity, to be gathered from the words used by the Legislature itself. If those words are so clear and unmistakable that they cannot be given any meaning other than that which they carry in their ordinary grammatical sense, then the Courts are not concerned with the consequences of the interpretation however drastic or inconvenient the result, for, the function of the Court is interpretation, not legislation." This formulation is a guide for discerning the true meaning of a word occurring in a section. Its import will, accordingly, depend on the language of the section and the nature and scope of the enactment. If, at all, there are limitations or reservations which affect its import, then due regard must be had to it so as to give effect to the intention of the legislature. Testing the meaning of the word "proceedings", we find from section 24 of the Regulation that each and every proceeding is co-related with its regularity, and the end-product namely, decision, sentence or order. There is no limitation or reservation in the language of this provision so as to give to it a narrow meaning. The nature and the scope of the statute also in no way limits or restricts its meaning. Therefore, we see no justification to hold that the application for bail ending in an order either granting bail or refusing it would not be covered by the words `any proceedings` in the section. The High Court has read limitations by reference to section 23 where this word has not been used. But there the words used are `any party aggrieved by any decision given, sentence passed or order made. Obviously, the right conferred is the right of appeal against an order, decision or sentence. In this context, a party cannot be aggrieved by a mere proceeding, and, therefore, this word has rightly not been used. Again, there is nothing in the text of either section 23 or any other section of the Regulation so as to make proceedings meaningful only upon the cognizance of the scheduled offence by the Deputy Commissioner. Section 24 of the Regulation has given wider jurisdiction to the revisional authority to examine the legality or propriety of any proceeding, decision or order. Eminently, therefore, any matter at an intermediate stage under the Regulation before a final verdict is given could be examined to determine its legality or propriety. As against it, the appellate powers do not extend to such an examination. The High Court was, accordingly, in error to hold so while denying jurisdiction to the Additional Secretary exercising powers of the Government. The power to grant bail is independently conferred under section 16 of the Regulation irrespective of whether the matter is brought under the Regulation or not. It is also significant to mention that by inserting section 15-A to the Regulation, the Deputy Commissioner is given the power to extend the time for completing the investigation. This limited control manifestly shows that even at that stage the Deputy Commissioner does exercise some power even though the case is not ripe for taking cognizance. For all these reasons, we hold that the High Court has wrongly decided Mst. Jabeen Baha's case. Accordingly, we are of the view that the Additional Secretary had the jurisdiction to cancel bail. The appeal fails and is hereby dismissed. Appeal dismissed |