1986 P Cr (PLP)

According to section 10(1) of the Ordinance a person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or having any jurisdiction of any kind in respect of any proceedings of a Special Court. Similar provision exists under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the Act). Section 5(6) of the Act reads as follows:‑ "An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released. Section 7 of the Act is in the following terms: "A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court." Section 7 of the Act came for interpretation in P L D 1975 Kar. 628 Mirza Jawed Beg v. The State wherein it has been held that an appellant authority, as the appellate authority, automatically has the power, in fit case to suspend or modify the operation of the order appealed against; but in the instant case interpretation of section 5(6) of the Ordinance requires examination. According to this section an accused person shall not be released on bail by a Special Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released.

2. It is contended by the learned counsel for the applicant that the power granted to the Special Court can be exercised by the Appellate Court and if an accused can be admitted to bail by the Special Court on the merits of the case the appellate Court has the same power to admit the accused to bail. Section 10 of the Ordinance would not be applicable in the cases where the matter is still pending for trial before the Special Court because section 10 relates to appeal from sentence; passed by a Special Court. There is specific bar to suspend the sentence under section 426, Cr.P.C. but in Mirza Jawed Beg's case a Division Bench of this Court came to the conclusion that the appellate Court has the power to grant bail and suspend sentence. Section 5(6) of the Ordinance has been interpreted by the Lahore High Court in the case of Mst. Zeenat Ali v. The State reported in 1985 P Cr. L J 2592, in which it has been held that the High Court has jurisdiction to grant bail in respect of offences under Ordinance IX of 1984. Similar view has been taken in P L D 1985 Lah. 10 and 1985 P Cr. L J

890. In section 10 of the Ordinance references have been made to sections 426, 491 and 498 of the Code and the Supreme Court of Pakistan in the case of Muhammad Ayub v. Muhammad Yaqub and another reported in P L D 1966 S C 1003 has held that section 498 should apply only to accused persons and not to those convicted of an offence. Section 426 of the Code grants power of bail to the appellate Court in respect of convicted persons. Subsection (2) of that section expressly enacts that such a power may be exercised by the High Court, in the case of an appeal by a convicted person to a Court subordinate thereto. It has been further observed that section 498 occupies the position of a supplementary provision in so far as it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of, grant or refusal of bail by subordinate Courts. A plain reading of subsection (6) of section 5 of the Ordinance would show that a Special Court before admitting, an accused on bail guilty of scheduled offence must serve a notice on the State Counsel and the accused shall not be released if there appears reasonable grounds for believing that he has been guilty of schedule offence. The Special Court has the jurisdiction to try a person if he is accused of a scheduled offence. Otherwise the Special Court has no jurisdiction to take cognizance of the matter, which is not a scheduled offence. Then subsection (7) of section 5 makes the position clear that where an accused person is released on bail the amount of bail shall be fixed having regard to the gravity of the charge against such persons. The conclusion would be that in appropriate cases a Special Court has the jurisdiction to admit a person accused of a scheduled offence to bail. Appeal against the sentence recorded by the Special Court has to be made to the High Court within whose jurisdiction the sentence has been passed. It would, therefore, be anomalous if the trial Court has been empowered to admit an accused to ‑ bail why the same power cannot be exercised by the High Court during the pendency of the case. The High Court has inherent powers under section 498 to admit a person to bail keeping in view the merits of the case. Sections 497 and 498 have not been excluded in subsection (6) of section

5. A Section 10 of the Ordinance would attract after the conviction is recorded. During the pendency of the trial the High Court can exercise power under section

498. There is no specific bar of admitting an accused facing trial before a Special Court as laid down in section 10 of the Ordinance. We would, therefore, hold that during the pendency of the trial before the Special Court. the High Court has the power to grant bail to an accused person facing trial before the Special Court. H.A.K.???????????????????????????????????????????????????????????????????????? Reference replied in affirmative.