of﷓﷓﷓Independent Mashirs had not been associated with recovery proceedings and there was no explanation for such omission on t (PLP)

AMANULLAH ABBASI, J.

The F.I.R. in this-case was registered on 15-11-1995 for offence under section 13-D, Arms Ordinance. A .30 bore pistol is said to have been recovered from the applicant. The learned advocate for the applicant has requested for bail on the ground that A.S.-I. and official of C.I.A. had apprehended the applicant and this was illegal. He has placed reliance on decision reported in PLD 1995 Lah.

606. The learned State Counsel opposed the grant of bail and submitted that section 54 authorises any Police Officer to effect the arrest. He also referred to section 156(2) and section 190(1-B) of Cr.P.C. He also referred to decision reported in PLD 1994 Lah. 503 and 511(c). A weapon is said to have been recovered from the applicant. His name appears in the F.I.R. The sections cited by the learned State Counsel have not been examined in decision reported in PLD 1995 Lah.

606. The name of the applicant appears in the F. I. R. and a weapon is said to have been recovered from him. There is a presumption under section 8 of the S.T.A. Act and in such cases there are two reported decisions of this Court wherein bail was declined. These decisions are reported in 1990 PCr.LJ 1689 and PLD 1995 Kar.

514. There were divergent views of This Bench on the point of section 8 of S.T.A. Act. The matter was referred to Honourable Chief Justice who had nominated Mr. Justice Nazim Hussain Siddiqui, J. to resolve the controversy. Mr. Justice Nazim Hussain Siddiqui, J. is of the view that section 8 of S.T.A. Act is to be examined at the time of recording of evidence. Normally this makes Full Bench judgment and is binding on me but in this case there is some difficulty. I was of the opinion that the provision of section 5-A(8) is to be read in A conjunction with section 8 of the S.T.A. Act. At that time two D.B. decisions of this Court were not in view otherwise I would have supported my view with these decisions. These decisions are reported in 1990 PCr.LJ 1689 and PLD 1995 Kar.

514. In decision reported in 1990 PCr.LJ 1689 my Lords Mr. Justice Syed Sajjad Ali Shah, C.J. and Mr. Justice Wajihuddin Ahmed, J. were pleased to rule as under:-- "Material collected by prosecution of incriminating against applicants as mentioned above is sufficient on the basis of which it can be said that there are reasonable grounds for believing that applicants have been guilty of scheduled offence and are not entitled to bail as contemplated under section 5-A(8) of Suppression of Terrorist Activities Act, 1975. In the instant case applicants are being tried for scheduled offences under Special Law and bail plea is to be considered in conjunction with section 8 of the said Act which shifts burden of proof on the accused. " There is a second decision on this point reported in PLD 1995 Kar. 514 in which my Lords Mr. Justice Abdul Rahim Kazi and Mr. Justice Ali Muhammad Baloch, JJ. have been pleased to rule as under:-- "In view of above discussion we are of the view that provision of section 8 of Suppression of Terrorist Activities (Special Courts) Act may be applicable wherein the burden shifts to the accused to prove his innocence as the accused had been named in the F.I.R. and identified on the very spot." At the time of my original order I have not cited these authorities, which support my view on the point of burden of proof. Had I supported my order with these authorities there would have been no need to refer the matter to third Judge. These are two D.B. decisions of this Court, which cannot be by-passed. These decisions have not been considered either in my order or in the orders of my learned brothers Mr. Justice Ghous Muhammad and- Mr. Justice Nazim Hussain Siddiqui, JJ. As there is presumption under section 8 of the S.T.A. Act and a prima facie case is made out, the bail application is rejected. However, in order to follow a uniform pattern of views I find it to be my duty to refer the matter to Honourable Chief Justice for constitution of a Full Bench in order to resolve the controversy. DR. GHOUS MUHAMMAD, J.

I have gone through the order proposed to be delivered by my learned brother Amanullah Abbasi, J. For reasons expressed hereafter I could not persuade myself to agree with him.

2. While deciding' Criminal Bail No. 1073 of 1995 there had been a difference of opinion between Amanullah Abbasi, J. and myself which was ultimately resolved in favour of the opinion expressed by me, by Nazim Hussain Siddiqui, J. vide his order dated 31-3-1996 on the following issues:-- (i) Whether the quantum of sentence relatable to the provisions with which, the person is charged is at all relevant to the grant or refusal of bail where that person is charged under any of the scheduled offences under Suppression of Terrorist Activities (Special Courts) Act, 1975? (ii) Whether the provisos to section 497 of the Criminal Procedure Code are available to the person seeking bail if charged under any of the scheduled offences of the S.T.A.?

3. In the judgment delivered by my brother Amanullah Abbasi, J. in Criminal Bail No.1073 of 1995 he had also touched upon the implication of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as "S.T.A. ") at bail stage. My learned brother had taken the view that section 8 of the S.T.A., which raised a presumption of guilt had to be considered at the bail stage. Dealing with this aspect in the last paragraph of his order Amanullah Abbasi, J. had proposed to reject the bail. The implications of the findings in the last paragraph of the order of Amanullah Abbasi, J. (i.e. in Criminal Bail No.1073 of 1995) are that once an accused is charged under the S.T.A. he is presumed to be guilty and that presumption would also operate at bail stage warranting rejection of the bail application. Such is also the approach of my learned brother in the present application wherein he has suggested that once the accused has been charged under the S.T.A. the operation of section 8 thereof would operate to raise a presumption of guilt against him and in consequence the very bail application would not be legally maintainable while there would be no need to touch upon the merits of the matter.

4. Before adverting to the present bail application I think it would be more pertinent to briefly recapitulate the outcome of Criminal Bail No. 1073 of 1995. In response to Amanullah Abbasi, J.'s order I have, inter alia, given a finding that section 8 of the S.T.A. had absolutely no bearing on the application of provisos 1 and 3 of section 497, Criminal Procedure Code in relation to bail under the S.T.A. In that respect I had been fortified by analysing three judgments of the Supreme Court where all the relevant provisions had been considered while these three judgments were:-- (a) Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599; (b) State v. Qaim Ali Shah 1992 SCMR 2192; (c) Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249.

5. Dealing further with the said section 8 of the S.T.A. 1 had come to the conclusion that the said provision had no bearing at bail stage, as I had observed:-- "The said provisions of burden of proof are only relevant for the purpose of main trial and are of no consequence at bail stage. At bail stage under these special laws I am of the view that the general principle of law as spelt out in Muhammad Iqbal v The State PLD 1963 Lah. 279,- that at bail stage every accused of an offence is to be presumed to be not guilty, remains applicable. In coming to this conclusion I am fortified from the views expressed by a Division Bench of this Court in Suhrab v. The State 1995 MLD 607 for the proposition that under section 8 of the S.T.A. the burden of proof would not stand shifted to the accused till such time the prosecution first made out a reasonable case against the accused. This dicta has to be read in conjunction with the general principle of law regarding bails that an accused can only be refused bail when, inter alia, there is a reasonable case against him. In other words even where the said section 8 is allowed to operate at bail stage the accused cannot be refused bail till prosecution first comes out with a reasonable case against the accused, while such is also the position in general law regarding bail as just aforestated. Accordingly there can be no cavil with the proposition that the said section 8 would have no bearing at bail stage. " (See para. 18 of my order in Criminal Bail No. 1073 of 1995).

6. The learned referee Judge i.e. Nazim Hussain Siddiqui, J., vide his order, dated 31-3-1996 has found himself in complete agreement with me, as he observed:-- "In case of scheduled offence if there are reasonable grounds to believe that the accused is guilty of a scheduled offence, he shall not be released on bail: Conversely, if there are reasonable grounds to believe that he is not guilty of the scheduled offence, he may be released on bail. The conclusion, therefore, would be that even on merits bail may be granted to an accused involved in scheduled offence, if there are reasonable grounds to believe that he has not committed the said offence. Mere accusation would not be enough to refuse bail to an accused unless such accusation is accompanied by material constituting reasonable grounds. (See second last paragraph of order of Nazim Hussain Siddiqui, J., in Criminal Bail No. 1073 of 1995).

7. The final upshot is that the conflict stands resolved by a Full Bench. However, now my learned brother Amanullah Abbasi, J. in the present applications has not only taken the same approach that he had followed earlier (in Criminal Bail No. 1073 of 1995) but has also categorically expressed the view that since all the three Judges in the Full Bench in Criminal Bail No. 1073 of 1995 (including himself) had failed to notice the judgments of Division Benches reported as Javed Shaikh v. The State 1990 PCr.LJ 1689 (D.B.) and Kaleem v. The State PLD 1995 Kar. 514 (D.B.), the conclusion arrived at by the majority in Full Bench was incorrect since the said two decisions were in consonance with his minority opinion.

8. However, now after having gone through the two decisions cited by my learned brother with utmost respect I am of the view that the said two decisions do not in any manner advance the views expressed by him in the instant applications or support his minority opinion in the earlier Bail Application No.1073 of 1995.

9. In the first judgment cited by Amanullah Abbasi, J., i.e. Javed Shaikh v. The State, Sajjad Ali Shah, C.J. while writing for the Court, had although given the finding that section 8 of the S.T.A. is to be considered at bail stage, once there are reasonable grounds for believing the applicants to be guilty of a scheduled offence the burden of proof would stand shifted upon the accused. Nowhere in that case has the view been taken that once an accused is charged under the S.T.A. Section 8 would operate to place an irrebuttable presumption of guilt upon the accused while there would be no need to touch the merits of the case to assess as to whether the accused has discharged the shifted burden by disproving the prosecution's case or that the bail application would not be maintainable at all. In the second case of Kaleem v. The State the Court appreciated that once there were reasonable grounds the burden shifted upon the accused in view of section 8 of the S.T.A. Once again the said case can hardly be used as an authority for the proposition that in view of section 8 of the S.T.A. an accused charged thereunder will not be entitled to bail or that his bail application would not be maintainable or that it would not be essential to go into the merits of the matter.

10. In fact, both the decisions cited by my learned brother Amanullah Abbasi, J., i.e. Javed Shaikh v. The State and Kaleem v. The State as also Suhrab v. The State 1995 MLD 607 which was taken note of by me in my earlier judgment in Criminal Bail No. 1073 of 1995, propound the principle of law that once a person is charged under the S.T.A. -the initial or prima facie burden of proof would rest with the prosecution to come up with sufficient material to make out a reasonable case against the accused. It is when this prima facie burden of proof is discharged by the prosecution that the burden of disproving the case of the prosecution shifts upon the accused under section 8 of the S.T.A. The Court while adjudicating upon the bail application has to assess as to whether the prosecution has discharged the prima facie burden and in case it has, it has to see as to whether the accused has discharged the shifted burden on him under section 8 by disproving the prosecution's case. In this manner if the prosecution has failed to make out a reasonable case or discharge the prima facie burden the accused shall be entitled to bail, while on the other hand where the prosecution makes out a reasonable case by proving a prima facie case and thereafter the accused in turn disproves the case of the prosecution thereby discharging the onus of proof shifted on him, once again he shall be entitled to bail. In the context of operation and shifting of burdens of proof I would refer to a recent judgment authored by me while sitting with Salahuddin Mirza, J. (as he then was) reported in Kamran Industries v. Collector of Customs PLD 1996 Kar. 68, wherein I had observed:-- "

25. Both classical and contemporary treatises on the law of evidence (Cross on "Evidence" 1967, 3rd Edition, London, Butterworth, "A Practical Approach to Evidence" by Peter Murphy, 1988, 3rd Edition, London, Blackstone Press Ltd. and "The Modern Law of Evidence" by Adrian Keane 1985, 1st Edition, Oxford, Professional Books Ltd. talk in terms of two burdens of proof i.e., the "legal" or "persuasive" burden and the "evidential" or "tactical" burden. The legal burden is defined as "the burden of proof or the probative burden and the ultimate burden" (see Keane at p. 46). The same has also been defined as "the burden of persuading the tribunal or fact, to the required standard of proof and on the whole of the evidence, of the truth or sufficient probability of every essential fact in issue". (See Murphy at p. 78). On the other hand the "evidential" or "tactical ",burden has been defined as "the quantum of evidence which would establish a prima facie case". (See Murphy at p.79). The legal burden is accordingly in our view the ultimate and final burden whereas the evidential burden requires only establishment of a prima facie case. According to the learned authors in every case there is a distinction between these two burdens. On a general principle both these burdens are cast upon the asserter of a proposition whereas in some cases the incidence of these two types of burdens may not coincide. According to Keane the determination of where the burden falls would depend upon substantive law as well as common sense-- (see pp.49 and 50). The mode of operation of the rules of evidence would be that the party upon whom the evidential burden is cast shall have to establish through prima facie evidence that he has an arguable case. In such an event it would then be obligatory upon the person bearing the legal burden to bring on record such material, which would ultimately bring home his case. It, circumstances where both the evidential and legal burdens are cast upon the same party the entire burden of proof shall be on that particular party and the distinction between legal and evidential burdens would not serve a fructuous purpose. However, it is in such cases where the incidence of the legal and evidential burdens are distinct i.e. the legal burden is placed on one party whereas the evidential burden lies on another, that the party on whom the evidential burden is placed has to satisfy the same by establishing a prima facie case. In such an eventuality the burden would shift to the other party who shall have to bring forth the ultimate evidence to make out a case i.e. he would have to satisfy or discharge the legal burden. The concept of shifting of burdens of proof is not alien to even our jurisprudence. The shifting of burdens of proof have been discussed and approved in Mst. Sofia Begum v. Mst. Malkani and another (PLD 1965 Lahore 576), Akber Ali v. Ehsan Elahi (PLD 1980 Lahore 145), Government of Pakistan v. Moulvi Ahmed Saeed (1983 CLC 414), Muhammad Sarwar v. Fazal Rehman (1982 CLC 1286) and Sardar Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir (1984 CLC 325). In all these cases and in other cases that we have seen, although the fact of shifting of burdens of proof has been acknowledged, however, the reason as to why such a legal fiction takes place has not been discussed. We feel that it is due to operation of the principles of incidence of burdens of proof vis-a-vis "legal" and "evidential" burdens as discussed above that the process of shifting of burdens become possible. We have already cited the opinion of Adrian Keane and we hold that in order to determine as to which party bears the legal or evidential burden would depend on the terms of the statute, the case-law on the subject as also common sense and equity." (See paragraph 25 at p.98).

11. In the context of burdens of proof I feel that the implication of the recent decision of the Supreme Court of Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249 is also of significance. The Honourable Supreme Court in that case by a majority allowed the accused bail on grounds that on the material produced by the prosecution there did not exist reasonable grounds to convict the accused with the alleged offences i.e. the prosecution had failed to discharge the prima facie onus of proof in view whereof the accused was entitled to bail. In this respect it would be pertinent to quote certain relevant passages from the judgment of Saleem Akhter, J. which are as follows:-- "In case of bail the Court is not required to probe into the matter but has to make a tentative assessment of the material produced to ascertain whether there are relevant grounds to believe that the accused has committed the crime. (See page 1266-I). . The term 'reason to believe' can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence. Even the strongest suspicion cannot transform in 'reason to believe'." (At p.1268 K). "

12. A reading of the decision of the Supreme Court in Chaudhry Shujaat and decisions of the Division Benches of this Court in Javed Shaikh v. The State, Kaleem v. The State and Suhrab v. The State would amply reveal that they all propound the following propositions:-- (a) The prosecution should first have to make out a reasonable case against the accused charged under the Suppression of Terrorist Activities (Special Courts) Act, 1975; (b) in case (a) above is achieved the prosecution would be taken to have discharged its prima facie burden of proof; (c) in case (a) is not achieved the accused shall be entitled to bail; (d) in case (a) is achieved, the burden of proof shall shift upon the accused to disprove the prosecution's case; (e) in case the accused is not able to discharge the onus pf proof shifted upon him as stipulated in (d) above he shall not be entitled to bail; (f) in case the accused is able to discharge the shifted onus of proof as stated in (d) above he shall be entitled to bail; (g) the Court shall have to make a tentative assessment of the merits of the case by applying its mind in the steps indicated as above even at bail stage.

13. In light of the above discussion and the steps in which the Court has to apply its mind when granting bail in S.T.A. cases as detailed in paragraph 12 above, which are squeezed out of the dicta of our superior Courts and the fundamental principles of the law of evidence, I may yet reiterate that I am unable to subscribe to the views of my learned brother Amanullah Abbasi, J., that when a person is charged under the S.T.A. he shall be presumed to be guilty and his bail application shall not be maintainable in law and there would be no room to touch upon the merits of the matter. Such interpretation is respectfully not borne out by the general principles of law of evidence and the case-law on the subject.

14. Before parting with the judgment I would venture to proceed a step further and reiterate the views expressed by me in Criminal Bail No. 1073 of 1995 that at bail stage section 8 of the S.T.A. has no bearing or consequence. This can be demonstrated by assuming the following situations:-- (a) Let us first assume that section 8 is allowed to operate at bail stage. In such a situation the accused 'cannot be refused bail till the prosecution first comes out with a reasonable case against the accused (see the steps dilated in para. 12 above). (b) Let us now assume that the said section 8 is not allowed to operate at bail stage. Even then the accused cannot under the general principles of law regarding bail be refused bail till the prosecution first establishes a reasonable case against him (see Government of Sindh v. Raeesa Farooq 1994 SCMR 1283). The above would amply demonstrate that the results in both situations (a) and (b) are the same. In other words this confirms my analysis that operation of section 8 of the S.T.A. can have no bearing or the consequence at bail stage.

15. In view of the principles of law dilated above, the individual bail applications are being decided as under: (i) In Criminal Bail Application No.1329 of 1995 (F.I.R. No.307/1995 under section 13-D of the Arms Ordinance registered at Police Station Gulzar-e- Hijri. C.I.A. acting on spy information A.S.-I. Muhammad Zaraghat Khan (of C.I.A.) Saddar, Karachi apprehended applicant/accused Abdul Khalil and recovered one unlicensed .30 bore pistol (Pak. made) from the fold of his Shalwar. In this case the complainant is also the investigation officer. (ii) Criminal Bail Application No. 1343 of 1995 was submitted on behalf of accused Farhan Ghaiyas who is involved in F.I.R. No.247/1995 of Police Station Jauharabad, Karachi for offence under section 13-D of Arms Ordinance. He was arrested by Inspector Haji Muhammad Akhtar I.C. S.I.C. Central Karachi as he was allegedly found in possession of an unlicensed .30 bore pistol and five live cartridges which were recovered from the fold of his Shalwar. In this case the learned defence counsel submitted that the Mashirs are police officials and it is a case of false implication and so far even the charge had not been framed. (iii) In Criminal Bail Application No.7 of 1996 (F.I.R. No.131/1995 registered at Police Station Nabi Bux for the offence under section 13-D, Arms Ordinance), the applicant/accused Muhammad Kashif was arrested on 8-9-1995 by A.S.-I. Nisar Ahmed Qaim Khani of (C.I.A.) Garden, Karachi as allegedly the accused was holding one unlicensed pistol .30 bore mauser black colour, butt brown plastic, CAL 7.63 mm. .30 bore 85102 No. Punched Load 6, cartridges. He could not produce licence for the arms and ammunition therefore the case was registered against him A.S.-I. Nisar Ahmad Qaim Khani also investigated the matter. (iv) In Criminal Bail Application No.12 of 1996 (F.I.A. No.360/! 995 Police Station Liquatabad) the applicant/accused Mirza Asif Baig who was already in custody took the police party to Imran Video Shop at House No. 16/A Bandhani Colony, Liaquatabad and allegedly produced two bags containing: 1) one 7 mm rifle + 32 live rounds 2) .30 bore pistol empty magazine, 3) .30 bore pistol empty magazine 4) .30 bore pistol + empty magazine 5) .32 bore pistol with loaded magazine containing 4 live bullets and 4 spare bullets 6) 180 rounds of KK live in the presence of Mashirs who are police constables. The complainant in this case is Inspector Saadullah Khan Bungash posted at (C.I.A.) Jamshed Quarters, Karachi and he is also the Investigation Officer. (v) In Criminal Bail Application No.13 of 1996 (F.I.R. No.361/1995 Police Station Jamshed Quarters (C.I.A.) under section 13-E of Arms Ordinance), while the applicant/accused Mirza Nasir Baig was in custody in a case under section 13-D, Arms Ordinance during interrogation allegedly gave clues and thereafter led the police party to Liaquatabad and produced a bag from plastic godown. In that bag there were one revolver of .32 bore with 6 bullets, one .30 bore pistol and empty magazine, one .22 bore pistol with 2 empty magazine and one .22 bore pistol with empty magazine .32 bore pistol with empty magazine and 23 .12 bore cartridges. These unlicensed arms and ammunition were secured by Inspector Saadullah Khan Bungash of (C.I.A.) in the presence of Mashirs who were police constables. He is also the complainant in the case. (vi) In Criminal Bail Application No.42 of 1996 (F.I.R. No.291/1995 registered at Police Station Gadap, District Malir for the offence under section 13-D of the Arms Ordinance, 1965, the police acted on spy information. The applicant was arrested by A.S.-I. Akhter Shah Bangish and allegedly one unlicensed TT pistol of .30 bore alongwith magazine containing 4 live bullets were secured from the fold of his Shalwar. According to the applicant he was involved in a false case as A.S.-I. Akhter Shah Bangish used to get his clothes stitched at the tailoring shop of the applicant free-of-cost and on 4-12-1995 when he was asked to make payment for the newly stitched clothes he got annoyed and ultimately this false case was registered. (vii) In Criminal Bail Application No.115 of 1996 (F.I.R. No.265/95, Police Station Jamshed Quarters, Karachi East under section 13-D, Arms Ordinance, 1965), the applicant/accused was arrested by A.S.-I. Ali Asghar Dehri of (C.I.A.) Jamshed Quarters, Karachi East, in the presence of police constables. He could not produce licence for a pistol No.CAL-763 (made in Pakistan), "Automatic" with loaded magazine having four rounds, which were allegedly recovered by the police from the fold of his Shalwar. (viii) In Criminal Bail Application No.183 of 1996 (F.I.R. No.248/1995 under section 13-D, Arms Ordinance, 1965 registered at Police Station (C.I.A.) Civil Lines, Karachi), the police acted on spy information. The applicant/accused was apprehended by A.S.-I. Jairo Khan of (C.I.A.) Civil Lines, Karachi on 16-11-1995. Allegedly the applicant/accused could not produce licence for one .30 bore TT pistol loaded with 4 cartridges, which were recovered from his possession. In this case Inspector Jairo Khan of (C.I.A.) Civil Lines, Karachi was the Investigation Officer. (ix) In Criminal Bail Application No.187 of 1996 (F.I.R. No.363/1995 Police Station Buffer Zone, Karachi, Central), the applicant/accused was arrested on 5-11-1995 by Sub-Inspector Sharfuddin Soomro of (C.I.A.) Jamshed Quarters, Karachi in the presence of Mashirs who are Police Officers. It is alleged that the applicant/accused was carrying one unlicensed pistol .30 bore No.3126-P.B.B. alongwith magazine and 6 cartridges which were recovered from the fold of his Shalwar. In this case the investigation was carried out by A.S.-I. Asghar Ali Dehri of C.I.A. Police Jamshed Quarters, Karachi. (x) In Criminal Bail Application No.245 of 1996 (F.I.R. No.5/1996 registered at Police Station Landhi, Karachi for the offence under section 13-D, Arms Ordinance), the applicant/accused was arrested by S.H.O. Inspector Mirza Abdul Majid of Police Station Landhi in the presence of two police officials and one unlicensed .30 bore pistol was recovered from the fold of the Shalwar of the accused. (xi) In Criminal Bail Application No.283 of 1996 (F.I.R. No.230/95 Police Station Pak Colony, Karachi under section 13-D, Arms Ordinance) acting on spy information Sub-Inspector Shamsul Zaman of Police Station Pak Colony apprehended the applicant/accused and in the presence of police officials one unlicensed .32 bore pistol was recovered. (xii) In Criminal Bail Application No.293 of 1996 (F.I.R. No.104/1995 Police Station Napier for the offence under section 13-D, Arms Ordinance), the applicant/accused was arrested by Sub-Inspector Nusrat Khan as allegedly one .30 bore unlicensed pistol was recovered from the possession of the accused. His bail application was rejected by Judge, Special Court No.IV of (S.T.A.), Karachi (Mr. Ali Akber M. Dodani) on 31-1-1996 on the ground that the F.I.R. was lodged promptly and the Mashirs of recovery were private persons. (xiii) In Criminal Bail Application No.322 of 1996 (F.I.R. No.80/1995 Police Station Bin Qasim for the offence under section 13-D, Arms Ordinance). S.I. Zaheer Haider apprehended the applicant/accused on 10-10-1995 who allegedly was carrying one unlicensed .30 bore pistol in the fold of his Shalwar. (xiv) In Criminal Bail Application No.417 of 1986 (F.I.R. No.306/1995 under section 13-D. Arms Ordinance and challaned by D.S.P. (C.I.A.), Karachi) the applicant/accused was arrested on 25-11-1995 by the police on spy information and one unlicensed .30 bore pistol (Pak.-made) alongwith 2 live cartridges were recovered in the presence of witnesses who are also police officials. (xv) In Criminal Application No.475 of 1995 (F.I.R. No.143/1995 Police Station Saeedabad under section 13-D, Arms Ordinance) the applicant/accused was arrested by S.H.O. Hussain Ahmed Nasir Lodhi in the presence of police officials as the applicant/accused could not produce licence for one TT pistol .30 bore with magazine (5 live cartridges).

16. I have heard all the learned counsel for the applicants/accused and Messrs Sarwar Khan and S. Zawar Hussain learned A.A.-Gs. for the State and also perused the record.

17. Bail applications of applicants/accused Messrs Abdul Khalil, Muhammad Kashif, Mirza Asif Baig, Mirza Nasir Baig, Khalid Pervaiz, Khuram Jamal, Fayyaz Ahmed, Muhammad Imran, Nazir Ahmed and Muhammad Imran were rejected by Judge, Special Court No.III for (S.T.A.), Karachi (Mr. Rafique Ahmed Awan) mainly on the ground that the case had recently been challaned and still no charge had been framed in view whereof the bail applications were dismissed as premature.

18. Bail applications of applicants/accused Messrs Farhan Ghayaz, Arshad Ali, Habibur Rehman and Shahab Ali were rejected by Judge, Special Court No.1 (S.T.A.), Karachi (Mr. Abdul Majid Bhatti) on the ground that the applicant/accused failed to give any reasonable or plausible ground/explanation that they had not committed the alleged offence.

19. In Bail Application No.283 of 1996 the Judge, Special Court No.1 for (S.T.A.), Karachi (Mr. Abdul Majid Bhatti) rejected the bail application and passed the following order:-- "While going through the bail application, it has been observed by me that this bail application is not maintainable as is moved under section 497, Cr.P.C. which is not applicable here in the Courts of S.T.A. There is a provision under S.T.A. Act for bail application. In the light of above observation, this bail application is dismissed." 20 The learned defence counsel contended that-- (a) while seeking recoveries from the accused no private person was associated although public witnesses were available, Therefore, compliance of section 103, Cr.P.C. was not made; (b) it was vehemently urged that members of the (C.I.A.) staff irrespective of the rank and status can investigate cases only if they have been specifically entrusted such a task by an officer incharge of the police station whom they are subordinate and accordingly the investigation of cases conducted by (C.I.A.) Staff and the Officer Incharge of the (C.I.A.) Staff on their own was illegal as was held by a Division Bench in Iftikhar Ahmed alias Dani v. The State PLD 1995 Lah. 600; (c) the complainant and the Investigating Officer were the same persons which was also illegal; (d) the alleged recoveries do not come within clause (c) to the Schedule of the S.T.A. Act, 1975.

21. The learned State Counsel while opposing the bail applications submitted that the applicants/accused were caught red-handed with unlicensed weapons and the police had no motive to implicate them in false cases. It was also submitted by them that section 190, Cr.P.C. was not taken into consideration in the judgment reported as Iftikhar Ahmed alias Dani v. The State PLD 1995 Lah. 600.

22. On a careful examination I find that the reason assigned for rejection of bail by Mr. Rafique Awan (see para. 17 above), the S.T.A. Judge, that bail applications were premature due to non-framing of the charge or non-submission of the challan is totally perverse. Such is not a requirement of law to await the challan/charge before deciding bail applications. A bail application can be moved at any time after registration of the case. If there is delay in framing the charge or submission of the challan the accused cannot be penalized by refusing to adjudicate upon his bail application. If the prosecution has registered a case it should have ample evidence to move expeditiously to submit the challan as per the requirements of law. The stand taken by Mr. Majid Ahmed Bhatti the S.T.A. Judge, in the set of cases laid down in para. 18 above is equally defective and absurd. He was first under the obligation to assess whether prosecution had made out a prima facie/reasonable case against the accused before assuming the burden to have so shifted upon the accused to disprove the prosecution's case. Likewise the approach taken by the learned Judge in Criminal Bail No.283 of. 1996 (see para. 19 above) that the section, number i.e. section 497, Cr.P.C. has been incorrectly stated in the bail application warranting its dismissal is completely bereft of any legs to stand. It is settled law that mere mention of a section number of statute incorrectly shall not change the nature and character of the legal rights and proceedings.

23. On merits and by way of tentative assessment I am of the view that the prosecution has not been able to make out a reasonable case or discharge the prima facie burden placed upon it, while the matter warrant further enquiry and grant bail due to the following reasons:-- (a) recoveries have not been made in the presence of independent Mashirs dissociated with or not being members of the police/C.I.A. and no explanation or reasoning has been brought on record for non -availablability or non-utilization of such independent witnesses; Mashirs; (b) involvement of the C.I.A. officers in the investigation without specific authorization by the Station House Officers in this regard; (c) delay in the submission of the challan; (d) clause (c) to the Schedule of the S:T.A. only brings within its mischief a 'cannon, grenade, bomb, rocket or a light or heavy automatic or semi-automatic weapon such as Klashnikov, a G-III rifle or any other type of assault' rifle'. Nothing has been brought on record by the prosecution to establish that the weapons recovered fall within this class of arms spelt out in the said clause (c).

24. I accordingly admit all the applicants/accused to bail subject to furnishing of surety in the sum of Rs.1,00,000 (Rupees one lac) each and P.R. Bonds each in the like amount to the satisfaction of the learned trial Court. NAZIM HUSSAIN SIDDIQUI, J.

This order will dispose of Bail Applications Nos.(1) 245 of 1996 (2) 1329 of 1995 (3) 1343 of 1995 (4) 7 of 1996 (5) 283 of 1996 (6) 115 of 1996 (7) 187 of 1996 (8) 42 of 1996 (9) 12 of 1996 (10) 13 of 1996 (11) 322 of 1996 (12) 417 of 1996 (13) 292 of 1996 (14) 475 of 1996 and (15) 183 of 1996. These applications were heard by a learned Division Bench of this Court comprising Amanullah Abbasi, J. and Dr. Ghous Muhammad, J. and their Lordships have taken different views in these matters. Amanullah Abbasi, J. refused bail to all the applicants of these cases, while Dr. Ghous Muhammad, J. has granted bail to all of them. Honourable Chief Justice by order, dated 30th May, 1996 had directed the office to place these matters before this Full Bench for resolving the above controversy.

2. Necessary facts of these applications have been mentioned in the order of Dr. Ghous Muhammad, J. and the same will not be repeated here unless absolutely necessary.

3. Earlier also Amanullah Abbasi, J. and Dr. Ghous Muhammad, J. had taken different views in a similar application and the Honourable Chief Justice by order, dated 15-2-1996 had directed the office to place said Bail Application No. viz. 1073 of 1995 before me as a "Third Judge" for its disposal, which was decided accordingly.

4. In Criminal Bail Application No. 1073 of 1995 Amanullah Abbasi, J. while rejecting the bail application of the applicant reached the conclusion that section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, hereinafter referred to as "S.T.A. Act", though not a complete code, but provides fetters on the powers of Special Court to grant bail. He also held that the principles enunciated in section 497, Cr.P.C. can be pressed into service for grant of bail, and that the provisions of section 5-A(8) are to be read alongwith section 8 and that "a part of provision of section 497 being in .conflict with the provisions of section 5-A(8) the bail could only be granted under provisions of section 5-A(8) ibid. He also held that in view of section 8 of the S.T.A. Act the applicant was to be presumed to have committed the offence. Accordingly, he had rejected the bail application.

5. Dr. Ghous Muhammad, J. in Criminal Bail Application No. 1073 of 1995 referred to three cases of the Supreme Court namely (1) Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; (2) State v. Qaim Ali Shah 1992 SCMR 2192 and (3) Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249. Having taken into consideration the principles of law enunciated in these cases, he reached the conclusion that the case of the applicant was clearly covered by third proviso of subsection (1) of section 497, Cr.P.C.; as such, he had granted bail to the applicant of said case.

6. Since in these applications the main point is to determine the scope of section 5-A(8) and section 8 of the S.T.A. Act, it would be advantageous to reproduce these sections below:-- "Section 5-A(8).

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

8. Burden of proof.

Where any person accused of having committed a scheduled offence is found to be in possession of or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence." 7.In Criminal Bail Application No.1073 of 1995, after having taken into consideration all the contentions raised on behalf of the parties, I have observed as follows:-- "In case of scheduled offence if there are reasonable grounds to believe that the accused is guilty of a scheduled offence, he shall not be released on bail. Conversely, if there are reasonable grounds to believe that he is not guilty of the scheduled offence, he may be released on bail. The conclusion, therefore, would be that even on merits bail may be granted to an accused involved in scheduled offence, if there are reasonable grounds to believe that he has not committed the said offence. Mere accusation would not be enough to refuse bail to an accused unless such accusation is accompanied by material constituting reasonable grounds." 8.After the decision of Criminal Bail Application No. 1073 of 1995 by the Full Bench, Amanullah Abbasi, J. in these matters observed that he was still of the view that the provisions of section 5-A(8) were to be read in conjunction with section 8 and in support of this view referred to the cases (1) Javed Shaikh and 3 others v. The State 1990 PCr.LJ 1689 and (2) Kaleem v. The State PLD 1995 Kar.

514. These two decisions were not referred by him in his order when he had disposed of Criminal Bail Application No.1073 of 1995. He held that above two decisions could not be bypassed and since these decisions were not referred to in Criminal Bail Application No.1073 of 1995, he deemed it proper to refer these matters again to the Honourable Chief Justice for constituting a Full Bench in order to resolve the controversy.

9. In the case of Javed Shaikh four applicants had applied for bail, who were facing trial for the offence punishable under sections 392, 397, P.P.C. and 17(3) of Hudood Ordinance before the Special Court at Hyderabad. Bail was refused to them mainly on the ground that they were fully described in the F.I.R. as well as in 161, Cr.P.C. statements of the prosecution witnesses. Further, they were correctly picked up in the identification test and recoveries of incriminating articles were effected from them. Under these circumstances, bail was refused to them with an observation "bail plea was to be considered in connection with section 8 which shifts burden of proof on the accused."

10. It is noted the material' collected by the prosecution against them was sufficient to hold that there were reasonable grounds to believe that they were guilty of the scheduled offences, as such, were not entitled to bail as contemplated under section 5-A(8) and as an additional ground it was noted that bail plea was to be considered in conjunction with section 8.

11. In the case of Kaleem settled principle of law was reiterated that, at the bail stage, only tentative assessment of the evidence was permissible. In this case also, the bail was refused to the applicant mainly on the ground of material collected against the applicant and as an additional ground it was observed "that the provisions of said section 8 may be applicable wherein the burden shifts to the accused to prove his innocence". Thus, in this case also bail was not refused to the applicant on the sole question of applicability of said section 8 but on the material collected by the prosecution during the investigation.

12. It is contended on behalf of the applicants that it is not the intention of the Legislature to refuse bail, under all circumstances, to the persons involved in scheduled offences of the S.T.A. Act. Elaborating it, learned counsel traced the history of the Act and submitted that at one stage the Act was amended by Ordinance No.XXII of 1992, whereby section 5-A was amended and subsection (8) was substituted, which provided that notwithstanding anything contained in sections 439, 491, 496, 497, 498, 498-A and 561-A, Cr.P.C. no Court other than the Special Court, had the power or jurisdiction to grant bail to any accused person. Thereafter, section 5-A was again amended by Act No.I of 1993 by virtue of which subsection (8), as quoted earlier, was substituted. Learned counsel argued that at the time the Ordinance No.XXII of 1992 was in force no Court had the power or jurisdiction to grant bail, other than the Special Court, but after the amendment by Act of 1993, the bail to the accused is not to be granted, only if there are reasonable grounds for believing that he has been guilty of a scheduled offence, meaning thereby if it is shown that reasonable grounds are not there, bail can be granted both by the trial Court as well as by this Court. Learned counsel also argued that the object of the S.T.A. Act is to suppress the act of sabotage, subversion, and terrorism and in order to achieve above objects S.T.A. Act was enacted, which contained the provisions of Cr.P.C.; P.P.C. and Evidence Act. It has also been contended that section 5-A(8) is a provision relating to the grant of refusal of the bail, while section 8 deals with burden of proof, which is a rule of evidence. According to the learned counsel, both these sections are distinct and are to apply at different stages.

13. The S.T.A. Act does not provide any particular section for the grant of bail. On the contrary, the section 5-A(8) says "an accused shall not be released on bail" as stated therein. The Special Court is to follow the procedure as laid down in Criminal Procedure, subject to the restriction imposed by the S.T.A. Act. It is, clear that if there are reasonable grounds to believe that the accused is not guilty of the scheduled offence he may be released on bail.

14. Section 5-A(8) is an independent section and deals with different subject than section

8. The former is about the principles concerning the bail, while the latter speaks about burden of proof, which is a rule of evidence. Bail is to be, granted or refused on the ground mentioned in section 497, Cr.P.C. read with section 5-A(8), and not on the principle of evidence. On this point, we refer to the case reported as Emperor v. Muhammad Pariah AIR 1934 Sindh 131 wherein the above principle was enunciated in the following terms:-- "Now the learned Judge has here slightly gone beyond the language of the law. The question of bail arises at a time when the opportunity for recording of evidence has not yet occurred. Section 497 does not, therefore, speak of evidence. It speaks of reasonable grounds."

15. The main point to be considered in these applications is whether section 8 is to be read at the stage of hearing of bail application or when the evidence is recorded.

16. Above section shifts the burden of proof upon the accused unless he could show that he had not committed said offence. There are various rules of 'burden of proof' and section 8 contains only one of them. The general rule is that burden of proof rests on the person who substantially asserts the affirmative of the issue and not upon the person who denies it. The rules of burden of proof have been enunciated in Articles Nos. 117 to 129 of the Qanun-e-Shahadat, 1984. Section 8 speaks about presumption that it shall be presumed that accused has committed the offence, unless he can prove otherwise. There are two clauses of presumption (1) Presumption of Fact and (2) Presumption of Law. The latter is generally divided into a rebuttable presumption of law and (b) irrebutable. The presumption,, which is mentioned in section 8, is presumption of fact and is always rebuttable. 17, Mr. Sarwar Khan, learned Additional Advocate-General strongly opposed these applications and submitted that the weapons recovered from possession of these applicants were semi-automatic, automatic pistols and TT pistol, and in view of section 5-A(8) and section 8 these applicants are not entitled to bail as there are reasonable grounds to believe that they have been guilty of the scheduled offences.

18. The contention of learned A.A.-G. has no force. Initial burden of proof always remains on the prosecution. The burden of proof is shifted upon the accused only when the prosecution discharges its initial burden. For example, if it is said that recovery was effected in presence of witnesses, first it is to be established that so had actually happened.

19. All the principles of burden of proof relating to the presumption of fact are applicable at the stage the evidence is recorded. It cannot be conceived that one of its principle would apply at bail stage and the rest at the time of recording of evidence. The burden of proof is a fluctuating process and it shifts from one party to other party, as the circumstances so warrant. If these principles operate at the bail stage no accused would be entitled to bail and he would have to wait till the evidence was recorded. Article 129 of the Qanun-e-Shahadat, 1984 speaks about presumptions and section 497 of Cr.P.C. lays down the principles for the grant or refusal of bail and no case was cited to show that ever the above provisions were read in conjunction at the bail stage. It is noted that sections 156(2) and section 187 of the Customs Act, 1969 place the burden of proof upon the accused, but before such presumption could be raised that the accused had committed an act of smuggling, the prosecution was required to prove that the goods specified in section 2(s) or in a notification issued under that section was seized from the accused, such seizure was made in accordance with the provisions of said Act, the seizure was in the reasonable belief that an acute to defraud the Government of the duty payable on such goods was committed or there was intent to commit such act. Therefore, to find out the truth in the allegations the Court always kept the prosecution evidence and defence plea in juxtaposition and determined if any offence was committed and this was done after the evidence was recorded. At bail stage in such cases the prosecution evidence has been assessed tentatively.

20. As regards the observations in the cases of Javed Shaikh and Kaleem referred to above, wherein it was observed that bail plea was to be considered in conjunction with section 8, it is noted that those observations are in the nature of obiter dicta and in these two cases the scope of section 8 with reference to the other provisions of the S.T.A. Act, particularly as envisaged under section 5-A(8) was never examined nor said point was raised in those cases. In the case reported as Messrs Amar Nath Om Prakash v. State of Punjab and others (1985) 1 Supreme Court Cases 345 at page 347, the following has been laid down:-- "A case is only an authority for what it actually decides and not for what may seem to follow logically from it. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."

21. We are of the view that section 8 of the Act is not to be considered at the bail stage.

22. Besides as above, in the case reported as State v. Qaim Ali Shah 1992 SCMR 1292 it has been held by the Full Bench of the Supreme Court that section 497(1), Cr.P.C. with its provisos l and 3 can be pressed into service by the High Court and the Special Court during the pendency of a trial of an accused before the Special Court and that the provisions of section 5-A(8) does not completely oust the applicability of section 497, Cr.P.C. in respect of bail at trial stage. Also it was observed that section 5-A(8) is not provision relating to the grant of bail, but a provision detailing circumstances prohibiting the grant of bail.

23. If section 8 is applied at the bail stage, it would nullify the dictum of law laid down by the Supreme Court in the case of Qaim Ali Shah.

24. A close scrutiny of the S.T.A. Act reveals that this Act was enacted for the purposes of suppressing acts of sabotage, subversions, and terrorism and to provide for speedy trial of offence committed in furtherance of or in connection with such acts. Section 5 of the Act provides that the Police Officer shall submit the report to S.T.A. Court within fourteen days in respect of a case triable by such Court. The Special Court may, however, extend the time if good reason is shown for it. Any act of the Police Officer causing delay is to be deemed wilful disobedience of the order of the Special Court. S.T.A. Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code. The Special Court, under section 5-A shall proceed with the trial from day to day and shall decide the case speedily. Further 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 days. Thus, it is evident from above provisions that the main object of this Act is to decide the cases speedily and not to keep a person in custody without any just cause for indefinite period. This object would stand frustrated if above provisions are not followed strictly. In case of non-compliance of the provisions of S.T.A. Act, relating to the trial without any justification, it would be deemed to be a reasonable ground for believing that the accused is not guilty of a scheduled offence.

25. Recently a Full Bench of the Honourable Supreme Court in Criminal Petition No. 140 of 1995 in a case, which was registered under section 13-D of the Arms Ordinance, 1965 and was pending before the Special Court, has granted bail with the following observations:-- "We have decided to refrain from dilating on the respective contentions raised by the learned counsel for the parties. The offence with which the appellant stands charged, prima facie, falls under section 13-D of the Arms Ordinance, 1965, which is punishable with imprisonment that may extend to three years or seven years. In either case, the offence does not fall within the prohibitory clause of section 497(1), Cr.P.C. We would accordingly allow him bail and direct that he should furnish bail in the sum of Rs.50,000 with one surety to the satisfaction of the trial Court. "

26. It is pertinent to note that Amanullah Abbasi, J. relying upon the aforesaid judgment of the Supreme Court, and speaking on behalf of the Court, granted bail in Criminal Bail Application No. 1276 of 1995 (Maqbool Ahmed v. The State), although in the cases in question involving the similar points he took a different view.

27. We agree with the conclusion drawn by Dr. Ghous Muhammad, J. in his order dated 15-4-1996 granting bails to the applicants but would like to add that, in his order at page 24(d) he observed that clause (c) to the Schedule of S.T.A. only brings within its mischief "a cannon, grenade, bomb, rocket, or a light or heavy automatic or semi-automatic weapons such as Klashnikov, a G-III rifle or any other type of assault rifle". Further he observed that nothing was brought on record that the weapons recovered in these cases fall within this clause of Arms spelt out in clause (c) of the Schedule of S.T.A. Act. In these cases mostly the weapons allegedly recovered from these applicants were semi automatic or automatic pistols and those commonly known as TT pistols. It is pointed here that Ordinance No.XL of 1995 was promulgated on 9th April, 1995, whereby the Suppression of Terrorist Activities (Special Court) Ordinance, 1975 was amended and by virtue of this amendment in the Schedule of the S.T.A. Act, in clause (c) words "semi-automatic or automatic pistols or TT pistols were inserted." Several Ordinances in this regard have been issued and the last one being the Ordinance No.XII of 1996 was issued on 28th February, 1996. Thus, semi-automatic or automatic pistols and TT pistols are covered by the S. T. A. Act.

28. In consequence, we hold that, the applicants of these matters are entitled to bail. Accordingly, bail is granted to them in terms of the order of Dr. Ghous Muhammad, J. mentioned earlier. RASHEED AHMED RAZVI, J.

I fully concur with the reasons and conclusion proposed by my learned brother Nazim Hussain Siddiqui, 1. in his draft order. But, I would like to supplement my views in addition to what has been elaborately discussed in the said order. It was strenuously argued from the appellants' side that even at the final stage of a case, the burden is still upon the prosecution to prove its case beyond reasonable doubt. In this connection, following case-law was cited where the Honourable Supreme Court and the High Courts, despite provision of section 8 of the Suppression of Terrorist Activities (Special Court) Act, 1975 held inter alia, that the burden to bring home guilt of the accused is still lies upon the prosecution: (i) The State v. Kazi Pervaiz 1qbal etc. PLD 1978 SC 64; (ii) Ghazi and 2 others v. The State PL1 1978 Cr. Cases 557; (iii) Mishal Khan v. The State 1983 PCr.LJ 1628; (iv) Manzoor Ali v. The State 1995 PCr.LJ 1394; (v) Suhrab v. The State 1995 MLD 607; (vi) Khawar and others v. The State PLD 1995 Kar. 105; (vii) Muhammad Aslam v. The State 1995 PCr.LJ 293; (viii) Muhammad Jaffar and another v. The State 1995 PCr.LJ 2052; and (ix) The State v. Hakim Ali and 3 others 1996 PCr.LJ

231. It was held by a Full Bench of Supreme Court in the case The State v. Kazi Pervaiz Iqbal (supra) that section 8 of (S.T.A.) Act, 1975 has to be construed strictly because it is a penal provision which reverses the most cherished principle of jurisprudence namely, that the burden of proving the guilt of the accused is on the prosecution. It was further held that section 8 is attracted only when the prosecution proves that the accused was in possession of articles and the things specified in the schedule. This view has been consistently followed, thereafter by this Court. (For any reference, see the cases cited at serial numbers (iii), (vi), (viii) and (ix) above). The perusal of section 8 indicates that once an accused is "found" to have in his possession or under his control any incriminating article or thing or if he is apprehended in such circumstances which lead to raise a reasonable suspicion that he has committed such offence, only then he shall be presumed to have committed the offences unless proved contrary by him. The term "reasonable suspicion" and the question of presumption was recently considered in the case Government of Sindh and 4 others v. Raisa Farooq and 5 others 1994 SCMR 1283 by the Honourable Supreme Court. In this case bail was granted to the respondents by a Division Bench of this Court during pendency of a Constitutional petition filed under Article 199 of the Constitution, 1973. Against the said order, Provincial Government went in appeal, which was dismissed by the, Supreme Court. In this reported case, the respondents were allegedly involved in cases, under sections 302/34, P.P.C. and 13-E of Arms Ordinance, 1965 and were awaiting trial before the Special Courts. Following is the relevant portion of the said order:-- "

11. The other aspect of this case is that respondents Nos.3 to 6 were released on furnishing bail bonds. This has also been challenged by the appellant. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable ground exists or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable ground as distinguished from mere allegation of suspicion. As observed in Ch. Abdul Malik v. The State PLD 1968 SC 349, however, strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the words 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail. In the present case as discussed above, the learned Judge came to the conclusion that the action being mala fide and also the material documents not having produced, no reasonable ground exists to believe that the accused had committed the crime. " (Underlining is mine). I may add here, that even where the Law creates a presumption in favour of the prosecution and shifts the burden of proof on the accused, such burden is never as heavy as the prosecution's burden to establish the charge beyond reasonable doubt. It has been consistently held by our Courts, ever since the Federal Court judgment in Safdar Ali's case PLD 1955 FC, 93 that the prosecution is never relieved of the duty to prove its case beyond doubt and when the burden is cast on the defence to prove special circumstances, this burden is sufficiently discharged by showing a reasonable possibility of the defence version being true. Applying these standards to section 8, it would appear that the burden of proof would shift upon the accused only if all necessary ingredients to attract the presumption of guilt are established by the prosecution beyond doubt and only thereafter the defence would only be required to show that its plea is reasonably possible. It is, therefore, quite clear that section 8 would apply only at the trial stage and the presumption of guilt can only be inferred after it is proved that the accused is "found" in possession of some incriminating articles etc. Before such stage this provision does not apply. In the end, I would like to observe that the "right to innocence" is well established and the most cherished principle of law. This right is embodied in the principle of fair trial and right to proper defence, which are enshrined in the golden rule of natural justice. The right to fair trial and the right to presume an accused person innocent until his guilt is proved, have now become part of many international instruments as well as part of law in almost all the developed countries. We cannot close our eyes from the development of law taking place in other countries. We have to interpret law, particularly in the case of penal statute, keeping in view our Constitutional provisions, Islamic Injunctions and the grund norms of human rights. I am fortified in my view by the case of Honourable Supreme Court in The State v. Syed Qaim Ali Shah 1992 SCMR 2192 wherein Mr. Justice Ajmal Mian, laid down the following principles for interpreting a penal statute. This was a case involving interpretation of several provisions of (S.T.A.) Act, 1975:-- "We should not be oblivious of the fact that our Constitution guarantees fundamental rights and Article 2A thereof enshrines Islamic mandates and we are living in an era in which the enforcement of the human rights has become an international issue. So the Courts while construing the provisions of statutes should make efforts that the interpretation of the relevant provisions of the relevant statutes should be in consonance with the above Articles of the Constitution and the grund norms of human rights. The view which I am inclined to take seems to be in accord with the above approach." The right to innocence and the right to fair trial have been guaranteed in various international charters and covenants. In this regard reference can be made to Article XXVI of the "American Declaration of the Rights and Duties of Man" adopted by the Organisation of American States. Article II(1) of the "Universal Declaration of Human Rights" adopted by the General Assembly of U.N.O. in 1948. Article 14(2) of the "International Covenant on Civil and Political Rights" again adopted by the General Assembly of the United Nations in the year 1966. In the subsequent sub-clauses seven (7) minimum guarantees are prescribed for the determination of any criminal charge including the rights for preparation of defence, engaging and communicating with the counsel of his choice and the rights to examine, cross-examine a witness (the right to fair trial). In my humble view all these International Instruments are of higher persuasive value. In order to maintain consistency with these principles of Human Rights, the law laid down by the Honourable Supreme Court in the cases cited by my learned brothers Nazim Hussain Siddiqui and Dr. Ghous Muhammad, JJ. as well as in the case of Kazi Pervez Iqbal PLD 1978 SC 64,and the case of Government of Sindh and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283, I am inclined to hold that the provision of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 is not applicable at the bail stage. As a result of the above discussion, I agree as proposed in the draft order, that the applicants are entitled to bail in the same terms as proposed. N.H.Q./A-7/K Bail granted.