2021 M L D 223

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Anwarul Haq Pannu, JJ

ABDUL QADIR---Appellant

Versus

The STATE and 4 others---Respondents

I.C.A. No.38 of 2020, heard on 3rd December, 2020.

Law Reforms Ordinance (XII of 1972)---

----S.3----Constitution of Pakistan, Art. 199---Intra-court appeal---Jurisdiction conferred under S.3 of Law Reforms Ordinance, 1972---Scope---"Intra-court appeal barred in certain cases"---Scope---Appellant impugned order passed in Constitutional petition whereby criminal proceedings against respondent were quashed and respondent was allowed to be released on bail---Contention of respondent, inter alia, was that intra-court appeal against such order was not maintainable---Validity----In order to determine forum of appeal, courts must look to the nature of proceedings in which impugned order sought to be appealed, had been made---Proceedings in which impugned order, in the present case, was passed were criminal in nature, therefore intra-court appeal under S.3 of Law Reforms Ordinance, 1972 was not maintainable----Intra-court appeal was dismissed, in circumstances.

Tata Iron and Steel Company Ltd. v. The Chief Revenue Authority of Bombay AIR 1923 PC 148; Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore and others PLD 1968 SC 171; Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109; Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543; Re Clifford and O'Sullivan, [1921] 2 AC 570; Ex Parte Tom Tong 108 U.S. 556 (1883); Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government (1943) AC 147; Regina v. Governor of Brixton Prison, Ex parte Levin (1997) UKHL 27; Regina on the Application of South West Yorkshire Mental Health NHS Trust v. Crown Court at Bradford (2004) 1 All ER 1311; Day v. Grant (Note) CA (1987) QB 972; Regina v. Parole Board ex parte Smith, Regina v. Parole Board ex parte West (Conjoined Appeals) (2005) UKHL 1; Regina v. Crown Court at Manchester Ex parte McCann and others (2002) UKHL 39; Guardian News and Media Ltd., Regina (on The Application of) v. City of Westminster Magistrates' Court and another (2011) EWCA Civ 1188; Regina v. Southampton Justices ex parte Green (1976) QB 11; George Tan Soon Gin v. Judge Cameron (1992) 2 AC 205 and The Province of Balochistan through Home Secretary v. Sher Mohammad Marri PLD 1975 Lah. 1372 rel.

Tahir Mehmood assisted by Malik Muhammad Yousaf Arain for Appellant.

Waseem-ud-Din Mumtaz, Assistant Advocate General with Aziz Ullah/SI for the State.

Mian Abbas Ahmad assisted by Muhammad Nasir Sikhani for Respondents Nos.4 and 5.

Date of hearing: 3rd December, 2020.

JUDGMENT

TARIQ SALEEM SHEIKH, J.----This Intra-Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 ("LRO"), is directed against order dated 13.2.2020 passed by the learned Single Judge in Writ Petition No.2131/2020 whereby he released Respondent No.5 (Jamshaid Ahmad Khan Dasti) on bail in case FIR No.56/2020 and quashed all the proceedings undertaken by the police while he was on physical remand.

2. Brief facts giving rise to this appeal are that Respondent No.4 filed Writ Petition No.2131/2020 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), stating that Respondent No.5 was admitted to protective pre-arrest bail by the Peshawar High Court in FIR Nos. 459/2018 and 20/2020 registered at Police Station City Muzaffargarh till 6.2.2020 but owing to political pressure Respondent No.3 lodged another case against him for offences under Sections 395, 365, 170, 171, P.P.C. vide FIR No.56/2020 dated 2.2.2020 on a fake complaint of Abdul Qadir (Appellant herein) and arrested him. Respondent No.4 contended that FIR No.56/2020, supra, was mala fide and detention of Respondent No.5 was improper. He prayed that he may be recovered and set at liberty. The learned Single Judge accepted the petition vide order dated 13.2.2020 and granted Respondent No.5 protective pre-arrest bail in FIR No.56/2020 and all other FIRs already registered against him till 20.2.2020 to enable him to approach the concerned Court for pre-arrest bail. Besides, he also quashed the proceedings undertaken by the police during physical remand in FIR No.56/2020 declaring them void ab initio. Aggrieved, the Appellant has filed this Intra-Court Appeal.

3. The learned counsel for the Appellant contended that Respondent No.5 was a habitual criminal. During the night between 23/24.12.2019 he along with his co-accused hijacked Oil Tanker No.TKB/384 carrying 40,000/- litres diesel from Dera Ghazi Khan Road and abducted its crew, including the Appellant who was driving it. On 2.2.2020 the Appellant lodged FIR No.56/2020 in respect of the incident. On 6.2.2020 police arrested Respondent No.5 and the following day produced him before the Area Magistrate who granted them four days physical remand. During that period the looted tanker and diesel were recovered from him. The learned counsel maintained that the said FIR was independent of FIR Nos. 459/2018 and 20/2020 registered against Respondent No.5 earlier and had no nexus with them. He argued that there was no material before the learned Single Judge to hold that it was mala fide. The recovery of the tanker and the diesel that it contained rather showed that the case against Respondent No.5 was veracious. The learned counsel was particularly critical of the quashing of the proceedings conducted by the police during remand and submitted that the learned Single Judge had exceeded his jurisdiction in this regard and caused serious miscarriage of justice.

4. The learned Assistant Advocate General adopted the arguments of the Appellant's counsel and supported this appeal.

5. The learned counsel for Respondents Nos.4 and 5 contended that this Intra-Court Appeal was not maintainable and liable to be dismissed on this short ground. On merits he submitted that Respondent No.5 was a known political figure and had been a member of the National Assembly. The cases against him were politically motivated and mendacious. So far as FIR No.56/2020 was concerned, it was lodged on 2.2.2020 - about 40 days after the alleged incident - when Respondent No.5 obtained protective pre-arrest bail from the Peshawar High Court in the previous two cases. According to him, it was out-and-out mala fide and a wily subterfuge to thwart the High Court's order. The learned counsel contended that the learned Single Judge had passed the impugned order after due appreciation of facts and no exception could be taken thereto.

6. Arguments heard. Record perused.

7. We must first attend to the objection regarding maintainability of this Intra-Court Appeal. Since this necessitates discussion on Section 3 of the LRO, we reproduce it hereunder for ready reference:

3. Appeal to High Court in certain cases.----(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.

(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (i) of paragraph (b) of that clause:

Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.

(3) ...

(4) ...

8. Under subsection (1) of Section 3 an Intra-Court Appeal can be filed against a decree or final order passed by a Single Judge in the exercise of his original civil jurisdiction. Tata Iron and Steel Company Ltd. v. The Chief Revenue Authority of Bombay (AIR 1923 PC 148) was one of the early cases in which the expression "original civil jurisdiction" came up for consideration. It was an appeal from a judgment of the High Court of Bombay on a question referred to it under Section 51 of the Income Tax Act, 1918. Clause 39 of the Letters Patent of that Court provided appeal to the Privy Council from any judgment, decree or order made by it in the exercise of its original civil jurisdiction. Lord Atkinson observed:

"...the words 'original jurisdiction' are only used in contradistinction to the words 'made on appeal."

9. In Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore and others (PLD 1968 SC 171) while judicially interpreting the expression "ordinary original civil jurisdiction" occurring in Section 4 of the Court Fees Act, 1870, the Hon'ble Supreme Court of Pakistan ruled that it was confined to the trial of suits arising within the local limits of that jurisdiction. Cornelius, CJ wrote:

"Speaking with great respect, the mere fact of a matter coming directly before the High Court under a law would not suffice to bring it within the ordinary original civil jurisdiction, however frequent such occasions may be, if the words in clauses 12 and 13 of the relevant Letters Patent be given their full effect. The ordinary original civil jurisdiction was confined to the trial of suits arising within the local limits of that jurisdiction. The extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of courts subordinate to the High Court. Every other jurisdiction of a civil nature conferred by the Letters Patent would, as contended by the learned Attorney-General, be best described as special jurisdiction or as statutory jurisdictions, since some of those jurisdictions were to be exercised under existing statutes. In the case of the Lahore High Court, there was no power to receive suits in the ordinary original civil jurisdiction, there being no provision in the relevant Letters Patent in that behalf. The Lahore High Court had testamentary and intestate jurisdiction to be exercised in accordance with law, and matrimonial jurisdiction exercisable under its own law. The jurisdiction of a general nature that it possessed was that conferred by clause 9 and described as extraordinary original jurisdiction which was confined to power to remove and try suits pending before its subordinate courts."

10. In Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. (PLD 1993 SC 109) the Hon'ble Supreme Court while considering the nature of jurisdiction of the High Court as a Special Court as defined in Section 2(f)(ii) of the Banking Companies (Recovery of Loans) Ordinance, 1979, observed:

"It seems to us that by the expression 'original civil jurisdiction' as used in the Ordinance, is meant the trial of the suit on the original side of the High Court. The term has not been used in the technical sense as understood with reference to the Letters Patent of some of the High Courts in the sub-continent, but has been employed in contradistinction to the appellate and revisional jurisdiction exercised by the High Court."

11. Again, in Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others (PLD 1996 SC 543) the august Supreme Court held that "original civil jurisdiction is such jurisdiction of a court where it is empowered to entertain suits and such proceedings of civil nature which are initiated before the said Court, and entertained by it as a court of first instance and are decided by it. Such jurisdiction is in contradistinction to the appellate jurisdiction." The apex Court further observed:

"Although in some judgments the word 'ordinary' has not been used, yet where the proceedings are initiated by filing a plaint as provided by the Code of Civil Procedure, it should be termed as ordinary original civil jurisdiction and not merely original civil jurisdiction. To clearly understand the meaning and impact of the term 'original civil jurisdiction', it is necessary to differentiate between these two terminologies. The original civil jurisdiction cannot be restricted to proceedings initiated by filing plaint which is ordinary original civil jurisdiction of a court, as jurisdictions are conferred on the High Courts by statutes which provide for initiating proceedings before the High Court itself. Such jurisdiction should be called statutory jurisdiction, but in any event it has to be considered whether it is an original jurisdiction or an appellate jurisdiction within the framework of even a statutory jurisdiction conferred by a statute. Constitutional or statutory jurisdiction can be of original nature having all the characteristics of an original jurisdiction. The exercise of what is commonly termed as the writ jurisdiction, was considered to be a special original jurisdiction of the High Court and not ordinary original civil jurisdiction."

12. The High Court has original civil and original criminal jurisdiction and appellate civil and criminal jurisdictions. Lord Cave L.C. eloquently defined criminal cause or matter in Re Clifford and O'Sullivan, [1921] 2 AC 570. He said: "In order that a matter may be a criminal cause or matter, it must, I think, fulfil two conditions which are connoted by and implied in the word 'criminal'. It must involve the consideration of some charge of crime, that is to say, of an offence against the public law ... and that charge must have been preferred or be about to be preferred before some court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offences." All proceedings which are not covered by this definition are a civil cause or matter.

13. The distinction between civil and criminal cause or matter is relevant even in petitions filed under Article 199 of the Constitution for the purpose of Section 3(1) of the LRO. The foremost question is what is the character of habeas corpus proceedings. Ex Parte Tom Tong [108 U.S. 556 (1883)] settled the law in the United States declaring that they were civil in nature. Speaking for the US Supreme Court, Waite C.J., said:

"Proceedings to enforce civil rights are civil proceedings ... the prosecution against the petitioner is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process... Such a proceeding on his part is, in our opinion, a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution."

14. In U.K. the nature and character of proceedings in which the habeas corpus is sought determine whether the matter is criminal or non-criminal. Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [(1943) AC 147] is the leading authority on this point in which Viscount Simon LC wrote:

"The distinction between cases of habeas corpus in a criminal matter, and cases when the matter is not criminal goes back very far ... It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court, claiming jurisdiction to do so, the matter is criminal.'

Lord Porter further explained:

"This does not mean that the matter in order to be criminal must be criminal throughout: it is enough if the proceeding in respect of which mandamus is asked is criminal, e.g., the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is; and, if a case be stated by them as to their right so to enforce it and that case is determined by the High Court, no appeal lies ... The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought before the magistrate in jeopardy of a criminal charge..."

15. The dictum laid down in Amand's case has been consistently followed by the English Courts. Reference in this regard may be made to Regina v. Governor of Brixton Prison, Ex parte Levin [(1997) UKHL 27], Regina on the Application of South West Yorkshire Mental Health NHS Trust v. Crown Court at Bradford [(2004) 1 All ER 1311], Day v. Grant (Note) CA [(1987) QB 972], Regina v. Parole Board ex parte Smith, Regina v. Parole Board ex parte West (Conjoined Appeals) [(2005) UKHL 1], Clingham (formerly C (a minor) v. Royal Borough of Kensington and Chelsea; Regina v. Crown Court at Manchester Ex parte McCann and others [(2002) UKHL 39], Guardian News and Media Ltd., Regina (on The Application of) v. City of Westminster Magistrates' Court and another [(2011) EWCA Civ 1188] and Regina v. Southampton Justices ex parte Green [(1976) QB 11].

16. The Hon'ble Supreme Court of Pakistan has adopted the principle laid down in Amand's case in Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others (PLD 1996 SC 543).¹ Therefore, in order to determine the forum of appeal the Courts in our country must look to the nature of the proceedings in which the impugned order sought has been made.

17. In the instant case, Respondent No.4 challenged the arrest of Respondent No.5 in FIR No.56/2020 alleging that it was mala fide and politically motivated. The proceedings in Writ Petition No.2131/2020 in which the impugned order has been passed being criminal in nature, this Intra-Court Appeal under subsection (1) of Section 3 of the LRO is not competent.

18. Now we turn to subsection (2) of Section 3 of the LRO. This provision perspicuously mandates that no Intra-Court Appeal lies from an order of a Single Judge under sub-paragraph (b)(i) of Article 199(1) of the Constitution. For ready reference the Article 199(1) is reproduced below:

199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-

(a) on the application of any aggrieved party, make an order-

(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or

(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) on the application of any person, make an order-

(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or

(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.

19. When we confronted the learned counsel for the Appellant with Article 199 he contended that the impugned order has two parts: the first relates to release of Respondent No.5 on protective bail and the second pertains to the declaration that FIR No.56/2020 is mala fide and quashing of the proceedings conducted by the police during remand. He argued that the second part falls within the ambit of sub-paragraph (a)(ii) of Article 199 so to that extent it was appealable under Section 3(2) of the LRO. We are afraid, such a bifurcation cannot be made because Respondent No.4 filed Writ Petition No.2131/2020 under Article 199(1)(b)(i) and not under Article 199(1)(a) of the Constitution and the learned Single Judge has also passed the impugned order under the former. In this respect reliance is placed on The Province of Balochistan through Home Secretary v. Sher Mohammad Marri (PLD 1975 Lah. 1372). In that case the respondent (Sher Mohammad Marri) was arrested from Sibbi and removed to Karachi where he was detained under the Defence of Pakistan Rules. While the proceedings challenging his detention were still pending in the then Sindh and Baluchistan High Court, the order under the Defence of Pakistan Rules was rescinded. Mohammad Marri hardly came out of the prison when was re-arrested in two cases registered about 11 years back in which he was alleged to be an absconder. He was first taken to the Machh Jail in Baluchistan and then shifted to Bahawalpur. Ch. Zahoor Elahi, a Member of the National Assembly, filed a constitutional petition under Article 199 of the Constitution read with Section 491, Cr.P.C. before this Court which was allowed by a learned Single Judge and Mohammad Marri was released on bail. The Province of Baluchistan assailed that order in an Intra-Court Appeal. The Deputy Attorney General contended that the jurisdiction of the Single Judge under Article 199(1)(b)(i) of the Constitution came to an end when he declared Mohammad Marri's detention illegal but in allowing the bail he must be held to have acted under Article 199(1)(a) of the Constitution. The latter part of the order was thus appealable under Section 3(2) of the LRO. A learned Division Bench of this Court nixed the argument and dismissed the appeal holding as under:

"But on a careful consideration we find that there is no force in any of these contentions for an obvious and very good reason. In the instant case the constitutional petition was filed not by the respondent himself, but by third person, Ch. Zahoor Elahi, Member National Assembly, which was competent only under Article 199(1)(b) and not under Article 199(1)(a) of the Constitution. In fact the petitioner before the High Court invoked the powers vested in it under Article 199(1)(b) of the Constitution. At this preliminary stage the question before us is not as to whether the impugned order was justified on the merits or not and we have adviseably refrained from expressing any opinion in this behalf. The learned Single Judge has passed the order in the course of the proceedings before him in the exercise or purported exercise of the powers vested in him under Article 199(1)(b) of the Constitution. This, in our opinion would be sufficient to hold that this appeal before a larger Bench of the High Court is not competent under section 3(2) of the Law Reforms (Amendment) Act."

20. In view of the foregoing, we hold that this appeal is barred even under Section 3(2) of the LRO.

21. The learned counsel for the Appellant argued the appeal on merits as well but we have not discussed them as the case has turned on the question of jurisdiction.

22. This appeal stands dismissed.

KMZ/A-82/L Appeal dismisse