1977 P Cr (PLP)

This is an application for the cancellation of ball before arrest granted to the respondents, Ilyas and Abdur Rashid, by the learned Additional Sessions Judge, Hazara, vide order dated 16‑12‑1976, in a case under sections 302/307/148/149, P. P. C. and section 3/4 of the Explosive Substances Act.

2. The facts as stated in the First Information Report are that on the 27th of August 1976 at about 9 a.m. Haqnawaz alongwith his father, Shehbaz and uncle, Ahmad, deceased, were present in their house in Gwari village when in the meantime, Gul Khan alias Bhoga, Muhammad Akram, Mukha, Yousuf, Haji Fazal Elahi, Nazir Khan, Abdur Rashid and Muhammad Ilyas, petitioners, armed with fire‑arms like pistols and shot‑guns, came to their house and Gul Khan alias Bhoga called out Sheraz, deceased, who came out of his house followed by Ahmad, deceased, and Haqnawaz, complainant. Out of the above‑mentioned accused, Gul Khan fired a shot at the deceased, Sheraz, who was hit and fell down. It is alleged that the remaining accused then also started firing. On this, Ahmad deceased ran towards Sheraz, who was lying on the ground wounded but he was too fired upon by Nazir Khan effectively and he also fell to the ground and the accused then started firing at Ahmad as well. Gul Khan is alleged to have thrown a grenade at Sheraz deceased while Yusuf son of Bostan fired at Haqnawaz complainant, who was hit on his chest and ran away from the spot. The motive given In the F. I. R. by Haqnawaz, complainant, is that some tune prior to the occurrence Nazir Khan's sister was kidnapped for which Sheraz deceased was charged alongwith others and that Nazir Khan and Gul Khan, accused, are related; the latter being the husband of the former's sister.

3. The learned Additional Sessions Judge admitted the respondents to bail on the ground that they have not been attributed any active role In the commission of the offence; that they only fired when the deceased was lying dead on the ground. Further that the Investigating Officers are of the opinion that the two respondents have not been charged correctly and thus relying on cases reported in 1974 P Cr. L J 450, 1977 P Cr. L J 517 and P L D 1976 Pesh. 48 admitted the respondents to bail before arrest.

4. The learned counsel for the petitioner vehemently argued that it is a case where all the accused including the respondents had formed an unlawful assembly and in the prosecution of the common object of the said assembly they killed Sheraz and Ahmad, deceased, and attempted at the life of Haqnawaz, complainant, therefore, each one of them is vicariously liable for the double murder and attempted murder of Haqnawaz; that in addition to this the respondents are also charged under section 3/4 of the Explosive Substances Act and that the learned Additional Sessions Judge had no jurisdiction to admit the respondents to ball under these latter two sections.

5. The learned counsel for the respondents and Advocate‑General heard and record perused. As regards the offences under sections 302/307/148/149, P. P. C. the finding of the learned Additional Sessions Judge is based on the grounds, which are quite valid for the purposes of bail. But as regard 's the jurisdiction of the learned Additional Sessions Judge admitting the respondents to bail for offences under section 3/4 of the Explosive Substances Act; the contention whether the jurisdiction of ordinary Courts, is barred under the Suppression of Terrorist Activities (Special Courts Act of 1975) Act XV of 1975, needs examining. Section 5 of the Criminal Procedure Code provides "all offences under the Pakistan Penal Code shall be investigated, Inquired into, tried and otherwise dealt with according to the provisions hereinafter contained". It is laid down is subsection (2) of section 5 that "all offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying, or otherwise dealing with such offences". In this regard a reference is to be made to section 4 of the Suppression of Terrorist Activities (Special Court) Act, 1975, which reads; "section 4(1). Notwithstanding anything contained in the Code, the Scheduled offences shall be triable exclusively by a Special Court and in section 5 of the said Act procedure of Special Court is laid down. A Special Court has been defined in section 2(c). "Special Court" means a Special Court constituted under section 3 and section 3(1) says that that the Federal Government may, by a notification in the official Gazette, constitute for the whole or any part of Pakistan Special Courts consisting of a person qualified for appointment as a Judge of a High Court . . . . . . . . . . . The Schedule under section 2(D) of the said Act includes any offence punishable under the Explosive Substances Act of 1908. Therefore, I am clear in my mind that the jurisdiction of ordinary Courts was clearly barred to try those offences, which are included in the schedule.

6. The learned counsel for the respondents, however, contended that what was barred was the trial by the ordinary Courts in such a case and not the determination of bail application. But I do not agree with this. Once a Special Court has been constituted, it must necessarily follow that no other Court could deal with the matter including the bail application.

7. The next point which the learned counsel for the respondents urged before me is, that one of the accused, namely, Gul Khan alias Bhoga, is alone charged for throwing a grenade at Sheraz, deceased, and, therefore the respondents could not be bell responsible for an offence under section 3/4, Explosive Substances Act. But here again he is mistaken because under section 3/4 of the said Act, any parson who unlawfully and maliciously does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion of a nature likely to endanger life, or cause serious injury to property in Pakistan, or makes or is in his possession, or under his control, an explosive substance or enables any other person, by means thereof to endanger life or cause serious injury to property, shall whether an explosion does or dots not take place and whether any injury to person or property has been actually caused or not, be punishable with death or imprisonment for life or any shorter term which shall not be less than 7 years" and section 6 of the said Act provide that any person who . . . . . . . . . . . in any manner whatsoever procures, aids, abets or is accessory to the commission of any offence under this Act shall be punishable with the punishment provided for the offence, which in substance is analogous to section 149 of the Pakistan Penal Code or for that matter section 107 or 109 of the Pakistan Penal Code. Therefore, I accept this application and cancel the bail allowed to the respondents under section 314 of the Explosive Substances Act. Petition allowed.