1996 PCr (PLP)

(3) Asif Ali Zardari v. The State 1993 PCr.LJ 381, in which a Full Bench of this Court consisting of Mamoon Kazi, J., Haziqul Khairi, J. and Muhammad Aslam Arain, J. (as they then were) have held as under:-- "The question raised by the learned Advocate-General was also examined by the Supreme Court in the case of Syed Qaim Ali Shah and it was unequivocally held that the provisions of the Code of Criminal Procedure which have not been expressly excluded by the provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975 will be applicable to the extent that they have been left unaffected. Upon this principle the Honourable Supreme Court came to a conclusion that since the provisions of section 497 as incorporated in the provisions thereto were independent provisions not affected by restrictions placed by subsection (8) of section 5-A of the said Act, bail could be granted to an accused under the third proviso to section 497(1), notwithstanding the said restrictions. In this judgment, some of the cases wherein bail was granted to the accused on the ground of delay simpliciter have been referred to by the Supreme Court. " (4) Mumtaz and another v. The State 1995 PCr.LJ 297 in which the observations of a Division Bench of this Court consisting of m learned brothers Wajihuddin, J. and Ghulam Haider Lakho, J. are as follows:-- "Consequent upon such examination of statutory law and judicial precedents, we have little doubt that the principles of justice, equity and good conscience, as promulgated in the various provisos of section 497(1) and other procedural sections of the Code of Criminal Procedure are equally applicable to grants or refusals of bails under subsection (8) of section 5-A of the Suppression of Terrorist Activities Act, 1975 and it is in such perspective of legislative and precedent law that the instant matter of bail has been considered. " Mr. Muhammad Sarwar Khan, the learned A.A.-G. has opposed the grant of bail to the applicants on behalf of the State and contended that an injured eye-witness Ahmed is still to be examined and that charge-sheet against the accused is submitted for an offence under sections 302, 302 Qisas and Diyat Ordinance, as well as 147, 148, 149, P.P.C. and in view of the provisions of section 149, all the accused/applicants are liable for art offence under section 302, P.P.C. and the contention of Mr. Pirzada that accused/applicants Jani and Muhammad are alleged to have caused Lathi blows and accused/ applicant Gul is alleged to have caused pistol shot injuries and all the injuries are simple in nature, therefore, the applicants are entitled for bail is not tenable. This Court at the bail stage cannot appreciate evidence in detail but only tentative assessment of the evidence is to be looked into. Mr. Muhammad Sarwar Khan has contended that under section 10 of the Suppression of Terrorist Activities Act, 1975, the provisions of Criminal Procedure Code are not attracted and accused are facing trial under a special statute and that this Court has no jurisdiction to entertain and decide the bail application. Section 10 of the Suppression of Terrorist Activities Act, 1975, is as follows:-- "

10. Act to override other laws.

The provisions of this Act shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force." Mr. Muhammad Sarwar Khan has also referred to the case of Honourable Supreme Court reported in Ch. Shujaat Hussain v. The State 1995 SCMR 1249, in which the petitioner sought leave to appeal against the order of the learned Division Bench of the Lahore High Court, by which his bail application was dismissed. Petitioner Ch. Shujaat Hussain was facing trial for offences under section 5(6) and 12 in Respect of Banks (Special Courts) Ordinance, IX of 1984 and Mr. Sarwar Khan has cited the observation of the Honourable Supreme Court, which is as under:-- "A comparison of section 5(6) of the Ordinance with section 497, Cr.P.C. will show that there is departure from the provisions of section 5(6), Offence in Respect of Banks (Special Courts) Ordinance, 1984. In this regard reference can be trade to section 12 of the Ordinance which provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. Therefore, in cases of conflict between the provisions of the Ordinance and the provisions of the Code, the Ordinance will prevail. The Ordinance being a special law conferring special power and jurisdiction on the Special Court and providing a special forum and procedure relating to the trial of scheduled offences, the Code will not affect any provision dealing with such special power, jurisdiction or procedure. Section 5(6) is couched in a negative language. Where any provision couched in negative language requires an act to be done in a particular manner then it should be done in the manner as required by statute otherwise such act will be illegal.." "It is, therefore, clear that section 5(6) of the Ordinance does not completely oust the applicability of section 497 of the Code in respect of bails and though the rule of subsection (1) of section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same subsection have been introduced in subsection (6) of section 5 of the Ordinance, which is couched in negative language, no express or implied ouster of the remaining provisions of section 497 of the Code can be spelt out from subsection (6) of section 5 of the Ordinance. " "Section 5(6) though not a complete Code provides fetter on the power of the Special Court to grant bail but the principles enunciated in section 497, Cr.P.C. and judicial authorities interpreting these provisions which do not come in direct conflict with section 5(6) can be pressed in service for grant of bail. A comparative study of sections 5(6) of the Ordinance and 497 of Cr.P.C. will show that bail can be, refused if there appear reasonable grounds for believing that accused has been guilty of the offence. This is one of the grounds in section 497 for grant of bail. Therefore, to that extent there does not seem to be any conflict in both the provisions. " But in this case, the case of Syed Qaim Ali Shah and another (supra) was not discussed by the Supreme Court. Even in this case of petitioner Ch Shujaat Hussain, the Honourable Supreme Court granted bail to him with the following observations and thereafter detailed reasons have been recorded by their Lordships:-- "It is thus clear that if a discretion has been exercised after considering all the facts and circumstances of the case, properly appreciating the questions involved in it, it would be a proper exercise of discretion and this Court would refuse to interfere. But it is not a rule that' if the High Court has exercised its discretion in granting or refusing bail to a party the Supreme Court would not interfere. Any discretion exercised in violation of the recognised principles of justice is liable to be set aside. A discretion should not be based on whims, inferences, suspicions and mere allegations. In the present case the discretion does not seem to have been properly exercised because inferences were drawn by enumerating allegations without even prima facie examining the effects tentatively. We, therefore, by a short order granted bail as follows--" This authority, cited by Mr. M. Sarwar Khan, A.A-G. in view of the orders of the Supreme Court, is not helpful to the prosecution. We have considered the facts of the case, still witnesses are to be examined by the prosecution in this case, Ahmed admittedly is an injured witness, advisedly we refrain from dilating upon the merits of the case but looking to the circumstances of the case accused/applicants are m custody since 10-10-1993 and delay whatsoever occurred has not been due to any act of the accused/applicants or any person acting on their behalf. Furthermore there is no / information on record on behalf of the State whether other criminal cases are pending against the accused/applicants and prosecution has not even alleged that the accused/applicants are either dangerous or hardened criminals As far as the delay is concerned, we would like to refer the provisions of section 5-A of Suppression of Terrorist Activities Act, 1975, which are as under:-- "5-A Procedure of Special Court.-- (1) On taking cognizance of a case the Special Court shall proceed with the trial from day to day and shall decide the case speedily. (2) A Special Court shall not adjourn any trial for any purpose, unless such adjournment is in its opinion, necessary in the interest of justice and no adjournment shall be granted for more, than two years. (3) A Special Court shall not, merely, by reason of a change in its composition or transfer of a case under section 4-A, be bound to recall and rehear any witness who has given evidence, and it may act on the evidence already recorded. A perusal of the record shows that the accused/applicants are in custody and trial has not been concluded with no fault of the accused/applicants and the trial Court overlooking the provisions of section 5-A has been adjourning the case, we respectfully agree with the rule laid down by the superior Courts referred hereinabove and older that the accused/applicants may be released on bail on furnishing solvent surety in the sum of Rs.2,00,000 each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. N.H.Q./M-14/K Bail allowed.