1999 PLP 2509 (YLR)

MIAN MUHAMMAD AJMAL, J.‑‑‑ This bail cancellation application was heard by a Division Bench of this Court comprising of Mr. Justice Nasir‑ul‑Mulk, J. and Mr. Justice Malik Hamid Saeed, J. on 3‑3‑1999. The former Hon'ble Judge accepted the bail cancellation application and cancelled the bail granted to accused -respondent Jehanzeb whereas the later Hon'ble Judge dismissed the bail cancellation application finding no merit in it. Due to divergent views of the learned Judges of the Bench, this bail cancellation application has been placed before this Single Bench by the order of the Hon'ble Chief Justice. I need not recapitulate the facts of the case as the same have been given in detail in the bail granting order of the learned Special Court, Charsadda, dated 25‑5‑1998.

2. Learned counsel for the petitioner contended that the accused‑respondent alongwith his father is directly charged in the F.I.R. for the murder of Abdul Wahab. He after obtaining ad interim pre‑arrest bail did not turn up on the date of confirmation. He was arrested after 15 months of the occurrence and was put to trial wherein almost all the formal witnesses have been examined. In the transfer application filed by the complainant party before this Court a direction was issued to the Trial Court by the Honourable Chief Justice to make efforts to conclude the trial in short time while dismissing the transfer application which order was not properly read and appreciated by the trial Court in allowing bail to the accused.

3. Learned counsel for the accused -respondent on the other hand vehemently argued that subsection (8) of section 5‑A of the Suppression of Terrorist Activities (Special Court) Act, 1975 (hereinafter to be called the Act) clearly states that an accused shall not be released if there appear reasonable grounds for believing that he has been guilty of scheduled offence and it only provides for the grant or refusal of bail and there is no provisions whatsoever in the Act for the cancellation of bail. The scheme of the Act would reveal that it required the speedy disposal of cases pertaining to scheduled offence before the expiry of two years, as such the legislature avoided to incorporate in law the provision for cancellation of bail. In absence of such provision in special law the application for cancellation of bail is not competent and maintainable and it deserves rejection. Further contended, that the cases of Allied Bank of Pakistan Ltd. v. Khalid Farooq and The State v. Syed Qaim Ali Shah reported as 1991 SCMR 599 and 1992 SCMR 2192 respectively are in respect of the grant of bail wherein it was laid down that High Court has the power to press into service section 497, Cr.P.C., with its Provisos 1 and 3, during pendency of trial before the Special Court, but it cannot lie made applicable in the bail cancellation application. He further argued that since the law has prescribed the period for the conclusion of the trial under the Act, therefore, period of two years prescribed in third proviso of section 497 of the Code does not fit in the scheme of the Act and, thus, third proviso to section 497, Cr.P.C., would not be attracted in the cases falling under the Act. He argued that the delay has been held in numerous cases to be an abuse of the process of the Court and on such ground the bail has been generally granted and bail granted on such a ground cannot be cancelled.

4. Learned Law Officer adopted the arguments of the learned counsel for the petitioner and supported the bail cancellation application.

5. After hearing the learned counsel for the parties and going through the record of the case I am of the view that the law laid down in 1991 SCMR 599 and 1992 SCMR 2192, is fully applicable to the present case. In the former case it has been held as follows:‑‑‑ "The provisions of the first and third provisos to subsection (1) of section 497 of the Code may be treated as not available to the Special Court or the High Court, such a situation would not apply to subsections (2) to (5) of section 497 of the Code, as they do not affect the rule stated in subsection (6) of section 5 of the Ordinance. These provisions would not stand excluded, whether expressly or by necessary intendment or implication. In the final analysis, it is not possible to subscribe to the view that sec tion 5(6) of the Ordinance constitutes a complete Code for the grant of bail to persons accused of offences mentioned in the Schedule to the exclusion of all provisions in the Code relating to the same subject. " It may be noted that the provisions of sections 5‑A (8), (9), 7(1)(2), (3) and 10 of the Act are synonymous to sections 5(6), (8), 10(1)(2), (3) and 12 of the Ordinance and the rule laid down in the above cited judgments is applicable similar provisions of the Act. In the later authority (1992 SCMR 2192), it has been observed by Mr. Justice Rustam S. Sidhwa, J. (as he then was) as under:‑‑‑ "Section 497 of the Code is not excluded by section 7 of the Act. It applies fully. Subsection (1) of section 497 of the Code relates to the grant of bail and limitation to its grant. Subsection (8) of section 5‑A of the Act relates to conditions which bar the grant of bail. Sec tion 497 of the Code is a composite section dealing with a host of matters including the grant of bail and conditions barring such a grant and cancellation of bail. Subsection (8) of section 5‑A of the Act is limited in its scope and only deals with conditions barring the grant of bail. This subsection which is limited in its scope ex facie cannot displace section497 or subsection (1) thereof, which have a larger scope." It is manifest from the above‑quoted authorities that the Act does not oust the applicability of section 497, Cr.P.C., subject to the restrictions contained in section 5‑A(8) of the Act, and it can be pressed into service both for the grant and cancellation of bail. There is also well‑known principle that one who can do a thing can undo the same. The respondent was allowed bail under third proviso of section 497, Cr.P.C., and not under section 5‑A(8) of the Act, if section 497, Cr.P.C., can be pressed into service for the grant of bail, its subsection (5) can also be invoked for cancellation of bail.

6. The accused‑respondent was arrested on 19‑10‑1997 after remaining in abscondence for 15 months. He was charge -sheeted on 3‑1‑1998 and in trial formal witnesses have been examined, however, no eye‑witness was examined till 25‑5‑1998 when he was granted bail on the ground of delay in conclusion of the trial. It is evident that respondent was granted bail within seven months from the date of his arrest. Proviso third to section 497, Cr.P.C., provides that if the trial is not concluded within two years. the accused shall be released on bail. The respondent applied for bail in the trial Court before the expiry of statutory period of two years, therefore, his application for bail being premature was not even entertainable and, thus, the order passed on such application granting bail to the respondent was without jurisdiction. Reference can be made to 1976 PCr.LJ 1446, 1982 SCMR 145 and 19981 SCMR

341. In view of the above, the bail‑I granting order being without jurisdiction is unsustainable, hence on acceptance of this application, the bail granted to the accused- respondent is cancelled. He is taken into custody and sent to judicial lock‑up as under trial prisoner to face trial. However, the trial Court is directed to conclude the trial as early as possible. N.H.Q./389/P Bail cancelled.