MUMTAZ ALI KHAN BHUTTO vs COURT OF JUDGE SPECIAL COURT N0.2 And Other
This is a petition for leave to appeal directed against an order of the High Court of Sind, which declined interim relief and bail before arrest to the petitioner in a miscellaneous application pending decision of a constitutional petition challenging the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the appointment of the Presiding Officer. The core legal question was whether the High Court was justified in refusing interim relief and declining to suspend the proclamation or prevent arrest on the ground that there was no imminent danger of arrest. The Supreme Court granted leave to appeal to consider the justification of the High Court's order and, as an interlocutory measure, suspended the proclamation issued under the Code of Criminal Procedure, 1898, directing that no action, including arrest, be taken against the petitioner pending disposal of the matter. The key principle laid down is that the Supreme Court may examine interlocutory refusals of interim relief and protect a party through interim suspension of coercive processes pending the final determination of constitutional challenges.
- Was the High Court justified in declining interim relief and bail before arrest on the ground that there was no imminent danger of the petitioner's arrest?
- Can the Supreme Court suspend the operation of a proclamation issued under sections 87 and 88 of the Code of Criminal Procedure, 1898 as an interlocutory measure pending appeal?
- Section 151, Code of Civil Procedure 1908
- Section 561-A, Code of Criminal Procedure 1898
- Section 498, Code of Criminal Procedure 1898
- Section 87, Code of Criminal Procedure 1898
- Section 88, Code of Criminal Procedure 1898
- Suppression of Terrorist Activities (Special Courts) Act, 1975
ORDER
AJMAL MIAN, J.---This is a petition for leave to appeal against the order dated 28-8-1996 passed by a Division Bench of the High Court of Sind in Constitution Petition No.D-1314 of 1996, filed by the petitioner challenging the provisions, of the Suppression of Terrorist Activities (Special Courts) Act, 1975 hereinafter referred to as the Act, and the appointment of the Presiding Officer/Judge of the said Court on the ground of being violative of Constitutional provisions. The high Court has admitted the aforesaid petition for regular hearing but has declined the petitioner's Civil Miscellaneous Application No.3470 of 1996 under section 151, C.P.C. Read with section 561-A, Cr.P.C.
And section 498, Cr.P.C., wherein he prayed for the following reliefs:-- "In view of the above submissions it is respectfully prayed that this Honourable Court may kindly be pleased to suspend the operation of the Proclamation under sections 87 and 88, Cr.P.C. Impugned in the main petition till final disposal of this petition.
Direct the respondents or any one else acting on their behalf not to arrest or detain the petitioner in F.I.R. No.6 of 1986 of Police Station Kanoth and further be pleased to admit the petitioner to bail before arrest.
Ad interim orders are solicited in the interest of justice."
The reasons found favour with the learned Judges of the Division Bench for declining the aforesaid miscellaneous application read as under:-- "It has been pointed out by the learned Additional Advocate-General, that the case was registered against the petitioner in 1986, but to date the petitioner has not been arrested. The petitioner is a member of Provincial Assembly, and he has been regularly attending the sessions of the Assembly, which are being held from the to the. If there was any intention to arrest the petitioner in connection with this case, such action could have been taken by the concerned police officer.
In view of these circumstances, we are of the view that there is no imminent danger of the petitioner being arrested and, therefore, we are not inclined to grant any interim relief at this stage.
The miscellaneous application is, therefore, dismissed. However, the petitioner would be at liberty to file another application as and when such need arises."
The petitioner has, therefore, filed the present petition for leave to appeal.
2. Mr. N.C. Motiani, learned Advocate-on-Record for the petitioner, and Mr. S. Zawar Hussain, learned Assistant Advocate-General Sind, have invited our attention to a leave granting order of this Court dated 13-10-1996 passed in Civil Petition for Leave to Appeal No. 1364-L of 1996 and Civil Miscellaneous Applications Nos.540 to 547 of 1996, whereby leave was granted against the judgment of the Lahore High Court declaring the Act as ultra vires, but at the same the, directing that the Tribunals shall not proceed with the matters in respect of the applicants. Alongwith the aforesaid petition for leave, an application under Order XXXIII, Rule 6 of the Supreme Court Rules has been filed with the following prayer:-- "It is prayed on behalf of the petitioner above named that this Honourable Court be pleased to suspend/stay the operation of proclamation order dated 9-7-1996 and order that the proceedings against the petitioner may be stayed pending disposal of main petition on the consideration of the following inter alia facts and grounds."
3. We are inclined to grant leave to consider, as to whether the High Court was justified in declining the petitioner's above miscellaneous application for the above-quoted reasons. Leave is, accordingly, granted.
4. As regards the interlocutory order, we suspend the Proclamation under sections 87 and 88, Cr.P.C. Issued against the petitioner and direct that no action pursuant to the said Proclamation including the arrest will be taken.