P L D 1996 Karachi 559 (PLP)

The applicant is indicted under section 13‑E of the Arms Ordinance pursuant to F.I.R NO‑177 of 1996 of P.S. Clifton, Karachi. Her application for bail was rejected by the learned Presiding Judge of Special Court‑III (STA) Karachi per order dated 19‑5‑1996. It would appear that, to start with, the applicant was required in Crime No‑85 of 1996 under section 147/148/364/448/342/427, P.P.C. of P.S. Frere, Karachi. While the applicant was so required, Inspector Fakhr‑e‑Alam and A.S.‑I. Raja Altaf Hussain, both of C.I.A., with other staff and the arrested accused from such crime case, raided. Flat No. 107, Condomenium Apartments, Block‑2, Clifton, Karachi, and arrested the present accused. in the presence of Wazir Ahmed son of Allah Wasaya and A.S.‑I. Samiullah Qureshi, posted at C.I.A., Jamshed Quarters, Karachi. During the search a Klashnikov, a repeater, and a .30 bore pistol etc. were recovered froth the apartment, for which the applicant accused could not produce due licences and F.I.R. No.177 of 1996, aforesaid, was registered on 22‑4‑1996. The applicant was later challaned before the referred Special Court. It is regrettable that no copy of the F.I.R. of Crime No.85 of 1996, 1 pertaining to P.S. Frere, Karachi, the above detailed main case against the applicant was placed on the record here and only because we required. the learned counsel for the applicant to place a copy of the bail order, dated 30‑5‑1996, of the learned Vth Additional Sessions Judge, Karachi South, granting bail to the applicant in the said crime case that we became wise as to the facts involved in the matter, F.I.R. No.177 of 1996, relevant here, merely recording the facturn of the applicant's arrest and recovery. It has consequently, not been easy to divest ourselves from the notion that, in all probability, the facts of the main case were held back from this Court. However, later on, the learned Additional Advocate‑General brought on record copies of such F.I.R., the memo. of arrest, 164 statements of Wazeer Ahmed son of Allah Wasaya and Molisin Khan son of Mehmood Khan and a resume of facts from Inspector S. Fakhr‑e‑Alam, which were shown to the learned defence counsel. Be that as it may, from the aforesaid order of grant of bail by the learned Additional Sessions Judge, Karachi South, the material placed before us by the learned Additional Advocate‑General and the arguments advanced, it has been revealed that on 21‑4‑1996 an F.I.R. under section 147/148/364/448/ 342/427, P.P.C. was registered at P.S. Frere, Karachi, upon allegations that on 15‑4‑1996 20 to 30 persons entered the house, which was the subject‑matter of such case, the applicant being with them and forcibly occupied such house/bungalow and tried to muffle the lady of the house, one Nusrat Ashraf, leading to the confinement of such lady and commission of theft of property etc. Bail was granted by the learned Additional Sessions Judge upon the rendering of "no objection" by Mr. Khatri, Assistant Public Prosecutor, strengthened by pleas that Mst. Nustat Ashraf was secured not from the applicant but from the Edhi House, the F.I.R. was lodged after six days, the dispute was a property dispute, the applicant was a woman, having three children one of them only a year old and, what is more, the applicant had already been admitted in hospital as a patient. In the instant case, before us Mr. Suleman Habibullah has contended that the raid and consequential recoveries by the CIA were illegal, requirements of section 103, Cr‑P.C. were disregarded, recoveries were not made on the pointation of the applicant‑accused and besides the applicant being sick (hospitalized) and a woman an entitlement for grant of bail eminently arises. It is, however, admitted in the bail application that the `apartment from which recoveries were made belongs to the ex‑husband of the applicant though it is alleged that the case has been foisted on the applicant due to the enmity of such ex‑husband with the applicant. The prayer for bail has been strenuously opposed by the learned Additional Advocate‑General, Sindh, and several precedent cases, notably Allied Bank of Pakistan v. Khalid Farooq, 1991 SCMR 599; Asif Ali Zardari v. State, 1993 PCr.U 781 (FB); State v. Qaim Ali Shah, 1992 SCMR 2192 and Shujat Hussain v. State, 1995 SCMR 1249 have been cited for and against the grant, from either side. We cannot agree with the learned Additional Advocate‑General, Sindh, that Shujat Hussain's supra, which pertains to grants of bail under section 5(6) of the Banks (Special Courts) Ordinance, 1984 employing similar language as in section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, has impliedly dissented from Qaim Ali Shah's case or overrules the Full Bench dictum of this Court in Asif Ali Zardari's case, above. It, largely, explains the opinion in Re: Allied Bank. We say so, with respect, because Shujat Hussain's case in the first instance, itself proceeds to grant of bail and not to refuse it. Secondly, the cases of Qaim Ali Shah and Asif Ali Zardari do not seem to have been cited before their Lordships, while hearing the case of Shujat Hussain nor was it there pointed out that sections 5A(8) and 5(6) respectively in the two enactments of 1975 and 1984 employed the same language and being in pari materia required similar treatment. Lastly, though a later decision of a superior Court, can either expressly or by necessary implication dissent from and overrule an earlier decision, an essential requirement for that purpose,, it seems to us, is that the later decision should, normally, be of a larger Bench. If the earlier decision is that of a larger Bench, as is the case here, the later decision, in our respectful view, cannot, either expressly or by necessary intendment, dissent from such earlier decision of the same superior Court. The: rule seems to have been implicitly recognized in Qaim Ali Shah's case itself, where (at p.2200) the larger Bench of five Judges was formed, as it was found necessary to reconsider Allied Bank Limited v. Khalid Farooq, 1991 SCMR 599 (also cited as Muhammad Aslarn v. State). The learned Additional Advocate- General, however, has drawn our attention to an observation (p. 11) in Ghulam Ali v. Ghularn Sarwar Naqvi, PLD 1990 SC 1, where, without saying more, it has been opined that a later decision of the Supreme Court would govern the case since the earlier decision did not constitute law declared", Re: Ghulam Ali is thus dislinguishable. As a result, we still feel ourselves bound by the decision in‑Qaim Ali Shah's case. Now, applying the foregoing dicta, it seems to us that the benefits covered by the four provisos to section 497(l), Cr.P.C. can legitimately be extended to a person seeking bail under section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. What is more, a person sucking bail under that provision may also take advantage of the observations of their lordships in Cr. Petition No. 140 of 1995 (converted to Cr. Appeal No.445 of 1995), Ejazur Rehman v. The State (decided on 22‑10‑1995), where the following passage occurs:‑‑ "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(l), 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. " In consequence, while a person arraigned under the Suppression of Terrorist Activities (Special Courts) Act, 1975, may (substantially) take advantage of the case falling outside the pale of the prohibitory clause in section 497(l), Cr.P.C. or within the provisos to that subsection, broadly, creating exceptions in favour of accused categorised as under the age of sixteen years or women or sick or infirm persons or those who are found entitled to the benefit of statutory delays, the fact remains that the grant of bail under the for special law is an exception rather than the rule and the discretion or grant thereof is to be scrupulously exercised. Even in cases where entitlement to bail arises under the referred provisions, the Court, while granting the same, is not to overlook the fact that under section 5A, subsections (1) and (2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the Special Court is required to proceed with the trial from day to day and to decide each case speedily, not adjourning the trial for any purpose except when in the interest of justice, no adjournment granted by the Court going beyond the period of two days. Such requirement, if duly fulfilled, the discretion to grant bail would become more stringent, in line with the‑postulates in section 5A(8) of such Act, envisaging that "an accused person shall not be released on bail by the Special Court or by any other Court if there appears reasonable ground for believing that he has been guilty of a scheduled offence. Here non‑bailable offences carrying punishments of death, imprisonment for life or for ten years, in contemplation of section 497(l) of the Code, seem to have been equated with a scheduled offence, visualised in the Suppression of Terrorist Activities (special Courts) Act, 1975, and, ordinarily, persons so charged are not routinely to be extended the facility be bail. See Mumtaz v. State 1995 PCr.LJ

297. An added consideration for stringency may arise on account of the fact that in cases meeting the requirements of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, primarily, burden of proof stands reversed and lies on the accused rather than the prosecution. Even so, where mandates of section 5A, subsections (1) and (2) in the Act have not been adhered to or there be absence of reasonable grounds of guilt or the circumstances of the case to not fit into the prerequisites of section 8 (ibid) or the justice of the case requires the exercise of discretionary powers conferred by section 497(l), Cr.P.C., the Court would be more inclined to extend relief than to withhold it. Taking up the grounds for seeking bail in the instant case, the first contention of the learned counsel for the applicant is that the CIA staff has been unnecessarily meddlesome and could not be inducted in the investigation process unless duly and lawfully assigned the job for so doing. Reliance is placed, inter alia, on Iftikhar Ahmad v. State PLD 1995 Lahore

606. In the resume of facts, however, submitted by the C.I.A. Inspector, he has claimed due authorisation. It is too early a stage to find otherwise. The plea, nonetheless, would remain open to the applicant when the case proceeds to trial. Next contention of Mr. Suleman Habibullah for the applicant is that the requirements of section 103, Cr.P.C. were not satisfied in relation to the search and recovery as one of the witnesses was a police officer and did not qualify as a respectable inhabitant of the locality. It is correct, as found in Asif Hussain Shah v. State, 1980 ALD 20 and Zulfiqar v. State 1991 PCr.LJ 275, that the postulates of section 103, Cr.P.C. can be invoked in proceedings covered by the Suppression of Terrorist Activities (Special Courts) Act 1975. We may also add that the rule as to burden of proof enacted in section 8 of such Act may itself stand over‑shadowed on account of a disregard of the mandate in section 103, Cr.P.C. However, each case of non‑compliance with section 103, Cr.P.C. is to be assessed on its merits. In these proceedings while there may not have been scrupulous adherence to the postulates of section 103, Cr.P.C. the fact remains E that one of the witnesses to the recovery was also an employee of the victim, besides being a witness of the‑main incident. As found by the Supreme Court in Muhammad Khan v. Dost Muhammad PLD 1975 SC 607, the requirements 6f section 103, Cr.P.C. are not always absolute, in the sense of failure of compliance thereof rendering the search to be illegal. Even so, such question would remain open at the trial. Advantage is then sought to be taken of the fact that the applicant is a woman as also a sick person. It is correct that the applicant being a woman is entitled to a preferential treatment in the matter of grant of bail. Similar incidence would arise on account of sickness but then in that context it must be shown that the ailment from which the applicant suffers cannot be treated in the usual way and if remains untreated is likely to perilously affect her faculties or is hazardous to her life. See Muhammad Yousafullah Khan v. State PLD 1995 SC

58. As to the same question of the applicant being a woman and a sick person, we may add, that the first proviso to section 497(l), Cr.P.C. only confers a discretion favouring persons covered by such proviso for grant of bail and discretion has to be tailored to fit the circumstances of each individual case. In such context, however, the first proviso is distinguishable from the third proviso in the same subsection which, relevant to statutory delays, fulfilling the prerequisites, is mandatory. The learned Additional Advocate‑General, Sindh, relevantly, has argued that crime is becoming more and more sophisticated with the march of time and it has become common‑place for criminals to spearhead their nefarious pursuits through women and children,, themselves remaining in the background and thus thwarting the process of law. Experience shows that H counsel may not be altogether wrong. It would, therefore, have to be seen, in the overall context of this case, whether the applicant is to be unstintedly accorded preferential treatment for ‑grant of bail solely on account of her being a female. Regarding her sickness we have already noted that she is hospitalised and the nature of the sickness itself, apparently some form of allergy, does not appear to be likely to impair her capacity or threaten her life, for which reason the ground of sickness is rejected outright. The last contention raised on behalf of the applicant for grant of bail is an emphatic reliance on the unreported case of the Supreme Court of Pakistan noted above namely, that of Ejazur Rehman where their Lordships released the applicant on bail barely on the ground that the offence under section 13‑D of the Arms Ordinance, 1965, did not fall within the prohibitory clause in section 497(l), Cr.P.C. That, in view of the dictum, is a very strong ground for grant of bail to the applicant and we, ourselves have released several prisoners, arraigned under the Act of 1975, citing Re: Ejazur Rehman as authority for due entitlement for release. Having said as much, we cannot be oblivious of the rule that each criminal case, including that of bail, is to be viewed in its own facts and circumstances. Now, what are the facts? The applicant is claimed to have been involved in descending upon a house in the company of some 20 to 30 persons, duly armed, who removed by use or show of force, allegedly, an old lady, the owner of such house, ransacking the house and taking over the possession thereof. The applicant was 'arrested arid recoveries were made, allegedly from the apartment of her ex‑husband. One of the prime witnesses of the offence was an employee of the lady removed and evicted as above. These, if true, are awe‑inspiring facts. In England it is said that the house of an English man is his, castle. In Pakistan, under the concept of Article 2A in the Constitution, the tenets of Muslim Law have assumed a paramount significance, elaborated by subsequent further legislative enunciations. Chadar and Char dewari thus are no less important in this country than the glorified home of an Englishman, upstaged to the status of his fort. Correspondingly, the Constitution of Pakistan confers rights and guarantees relatives to property and privacy of home. Accordingly, if what is alleged against the applicant is true, fundamental tenets of Islam and equally important Constitutional guarantees may have been blatantly violated, for which end the weapons recovered were; allegedly, used and the applicant was avowedly personally involved. Under the pristine concept of section 497(l), Cr.P.C. for non‑bailable offences, not failing within the prohibitory clause of the subsection, bail, is the rule. Yet the power to grant it remains discretionary as, inter alia, held in Tufail Muhammad v. State PLD 1973 Lah. 747, Bachal v. State 1973 PCr.LJ. 1009 and Khuda Bux v. State, PLD 1988 SC

413. Bails, likewise, have also, where necessary, been refused in cases covered by the first proviso to section 497(l), IL Cr.P.C. Ready reference may be made to Shahbaz Tufail v. State, 1978 SCMR 235 and S. Tariq v. State 1990 PCr.LJ 653 both of which, however, pertain to underage boys rather than women but the rule for either is the same, each covered by the first proviso. In these circumstances, therefore, we refuse bail to the applicant but would require the Special Court to conclude the proceedings in the case, as far M as practicable, within a period of two months, always keeping in view the mandatory postulates of section 5A(l) and (2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. In case of delay reasons thereforewill be communicated to this Court. Before parting we would. also direct the office to place a note in Court, indicating whether or not an application for cancellation of the applicant's bail in the main case has been preferred in this Court and if so its current status. Order accordingly N.H.Q./N.21/K Bail refused.