1991 PLP 496 (MLD)

QASIER AHMED HAMIDI, J.--Applicants Muhammad Ismail, Dhani Buy, Qurban and Muhammad Moosa who are wanted in Crime No.87 of 1990, NauderO.P.S., under section 148-307-114/149 P.P.C. and section 13-D of the firms Ordinance, 1965, apprehending their arreat approached before learned Judge, Special Court for Suppression of Terrorist Activities, Larkana, for pre arreat bail, but without success. They have, therefore, approached this Court with the same prayer. On 28-11-1990 they were admitted to interim pre-arreat bail in the sum of Rs.1,00,000 (Rs. one lax only) each with P.R. bond in the like amount and they continue to be on interim bail till today.

2. We have had the benefit of very careful arguments on both the sides. The learned Addl. A.-G. who has raised a preliminary objection about the competency of this bail application under section 498, Cr.P.C., has invited our attention to the case of Abdul Khalique v. The State reported in PLD 1990 Karachi 448, which is a Full Bench decision in which one of us was a member. Speaking broadly, however, the authority appears to us to create no difficulty. We think that the dictum laid down in the above case subjected to rigorous analysis will be found to be perfectly correct, but to the extent as to "whether the appellate Court is competent to hear application for bail and suspension of sentence in spite of special bar contained in section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, or not".

3. Subsection (8) of section 5-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, relates to the grant of bail to an accused person involved in a scheduled offence and it provides as under: -- "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."

4. Subsection (6) of section 5 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, as it stood before the amendment was examined by a Full Bench of Lahore High Court in the case of Muhammad Gul and another v. The State, reported in 1985 P Cr. L J 205, and it was held that the right of accused person to seek bail or power of Special Court or any other Court to grant bail was dependent on clear cut provision that there did not exist reasonable grounds for believing that the accused had been guilty of a scheduled offence.

5. While considering the jurisdiction of the High Court under section 498, Cr:P.C. in the above-cited case it was made clear that it has independent or concurrent jurisdiction to grant bail in cases which are exclusively triable by a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975.

6. Subsection (6)-of section 5 and section 10 of the Offences in respect of Banks (Special Courts) Ordinance, 1984, which are identical to subsection (8) of sections 5-A and 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, came under security in various judgments. The case of Abdul Majid v. The Judge, Special Court (Offences in Banks) Lahore and another, reported in 1985 P Cr. L J 890, is relevant on the point in issue, wherein it was held that High Court is competent to grant pre-arrest bail in respect of scheduled offence under section 498, Cr.P.C.

7. In the case of Muhammad Moosa v. The State, reported in 1986 PCr.LJ 578, a Division Bench of this Court examined the above provisions of the Offences in respect of Banks (Special Courts) Ordinance, 1984, and the Suppression of Terrorist Activities (Special Courts) Act, 1975, and it was held: -- 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. 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:'

8. It, therefore, follows that section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, bars the jurisdiction of High Court only to the extent of grant of bail to a convict by suspending his sentence under section A 426, Cr.P.C., and section 498, Cr.P.C. used in section 7 refers to the case of convict in appeal which is clear from the language of section 498, Cr.P.C. itself, which is as under: -- "The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive; and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail or that the bail required by a police officer or Magistrate be reduced."

9. The ouster of jurisdiction should not be readily inferred and any statute, which encroaches on the jurisdiction of the superior Courts will, be subject to, strict interpretation and there can be no implied authority to deprive superior Courts of their jurisdiction.

10. To sum up, we may reproduce the weighty observations of the Full Bench decision of Lahore High Court in the case of Muhammad Gul and another v. The State, reported in 1985 P Cr. L J 205, which are as follows: -- "It is well-settled that the High Court has independent or concurrent jurisdiction to grant bail under section 498, Cr.P.C."

11. On merits the applicants have got a good case. There are cross-cases and 'the F.I.R. lodged on behalf of applicants (Crime NoS6 of 1990) under section 148-302-307-353-447/149, P.P.C. is earlier in time. The applicants are admittedly in possession of land over which the incident took place and the contents of F.I.R.(Crime No.87 of 1990) lodged against them are clear on .this point. One person, namely, Anwar lost life from the side of applicants. The circumstances of the case when put in juxta-position to the counter-version make out a case of pre- arrreat bail in respect of applicants. We would, therefore, confirm the interim bail granted to applicants on 28-11-1990. The applicants are directed to associate themselves with the investigation of this case. They will appear before the concerned police acid Court, as and when required. M.B.A./M-1296/K Bail confirmed.