1990 PLP 1892 (MLD)

Mian Qamar‑uz‑Zaman for the Complainant. Muhammad Farid complainant and Mian Saeed Akhtar co‑accused of Arif Saeed petitioner run transport business, frequent quarrels take place between them over the loading and unloading of passengers. On the day of occurrence i.e. 23‑2‑1990 a dispute of similar nature had arisen between Ijaz brother of the complainant and Zia Ullah, Manager Ghausia Travels of the accused party. On the same day at about 3‑00 p.m. when Muhammad Farid complainant, Muhammad Naveed deceased and Ijaz aforementioned etc. were present at their Adda, Akhtar Go Pehlwan armed with a Klashnikov, Arif Saeed petitioner armed with a 12 bore gun, Mian Saeed Akhtar empty‑handed and Zia Ullah carrying 7 M.M. rifle arrived there. Zia Ullah raised a lalkara whereupon Akhtar alias Go Pehlwan fired at Muhammad Naveed deceased hitting him near the right flank. Zia Ullah fired a rifle shot hitting the deceased on the right wrist. Thereafter, Arif Saeed petitioner and the other accused carrying fire‑arms fired in the air and left the spot.

2. Bail for Arif Saeed petitioner is sought on the grounds that he has been involved on account of political rivalry and that he was not present on the spot but had gone to Gujjar Khan and a large number of people from Gujjar Khan appeared before the Investigating Officer and sworn affidavits to that effect, that the Investigating Officer found it to be correct and made mention of it in report under section 173, Cr.P.C. but due to political influence of the complainant party did not place him in column No. 2 of the challan and left him at the mercy of the Court. 1t is next submitted that no injury to the deceased or any P.W. is attributed to the petitioner. He is merely alleged to have fired in the air after the deceased was hit by the shots fired by his co‑accused.

3. Yearned counsel for the complainant has vehemently opposed the grant of bail to the petitioner. According to him this Court has no jurisdiction to grant bail because the case is triable by a Special Court set up under the Suppression of Terrorists Activities (Special Courts) Act, 1975. He has referred to section 5(6) of the Act No. XV of 1975 in this behalf.

4. Learned counsel for the State submits that there is no bar on the High Court to grant bail in the case but according to him the petitioner is not entitled to be released on bail in view of the allegations levelled against him.

5. Learned counsel for the petitioner have cited the following precedents where accused facing trial under Suppression of Terrorists Activities (Special Courts) Act, XV of 1975 were allowed bail by the High Court:‑‑ Muhammad Gul and another v. The State 1985 P Cr. L J 205(F'B), Sareed Khan v. The State P L D 1989 Pesh. 80, Aftab Ahmad Shah v. The State 1989 P Cr. L J 112 and Gul Muhammad and 2 others v. The State 1987 P Cr. L. J. 737.

6. Section 5(6) of Offences in Respect of Banks (Special Courts) Ordinance IX of 1984 is identical to section 5(6) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the provisions of section 10 of 1984 Ordinance are similar to the provisions contained in section 7 of 1975 Act. In Muhammad Yaqub Ali v. The State P L D 1985 Lah. 48 and Abdul Majid v. The Judge, Special Court (Offences in Banks) Lahore and another 1985 P Cr. L J 890 it was held that bail can be granted by the High Court to an accused who is facing trial before a Special Court under the Ordinance, 1984. In Gul Muhammad and 2 others v. The State 1987 P Cr. L J 737 it was held that the power of the High Court under section 497, Cr.P.C. to grant bail to an under‑trial prisoner, facing trial before a Special Court constituted under the Act, 1975 remains unaffected and the High Court can grant bail on any ground available under section 497, Cr.P.C. Section 5(6) of the Act, 1975 is 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 be so released:" The Act XV of 1975 does not in any way restrict or limit the power of the High Court under the Code of Criminal Procedure. The power of the High Court to grant bail under section 497, Cr.P.C. has not been specifically taken 1 away by any provision of the said Act and the High Court being appellate authority would have jurisdiction in all incidental and ancillary matters during pendency of trial before Special Court. Now coming to the merits of the case admittedly, Arif Saeed petitioner is not alleged to have caused injuries to anybody. He is not even alleged to have fired either at the deceased or the P.Ws. The only allegation against him is of 1 firing shot in the air after the deceased had fallen injured. His plea of being . present at Gujjar Khan on the material day and time was verified by the' Investigating Officer but in view of the insistence of the complainant party the matter was left to the decision of the Court. In the above circumstances guilt/participation of the petitioner in the occurrence requires further inquiry. Accordingly, I admit him (Arif Saeed) to bail in the sum of Rs. 1,00,000 (One lac only) with two sureties in the like amount to the satisfaction of A.C., Gujrat. N.H.Q./A‑1010/L Bail allowed.