' Accused Haji Muhammad Khan and Khuda Bux are facing trial in Special Criminal Case No.31 of 2003 (State v. Anwar alias Munoo and others) and they were granted interim bail before arrest by the learned Judge, Anti-Terrorism, Hyderabad and Mirpurkhas Divisions, which order was subsequently confirmed.
2. The complainant/applicant has sought cancellation of the pre-arrest bail granted to the respondents by the learned Judge, Anti-Terrorism, Hyderabad on two .Counts. First, that the learned Judge, Anti-Terrorism, Hyderabad has no jurisdiction to grant pre-arrest bail, although he has jurisdiction to grant bail after arrest. The second contention is that the impugned order granting pre-arrest bail is not a speaking order and the facts of the case have not been considered.
3. In support of his first contention Mr. Chaudhry Aftab Ahmed Warraich, learned counsel for complainant has placed reliance on a Division Bench decision of Lahore High Court in the case of Ghulam Nabi v. Bashir Ahmed and others (2001 PCr.LJ 1434), wherein it has been held that Special Judge exercising jurisdiction under the Suppression of Terrorists Activities (Special Courts) Act, 1975 has no jurisdiction to grant pre-arrest bail to accused under section 498, Cr.P.C. Mr. Warraich has submitted that the provisions contained in section 5-A(8) of the Suppression of Terrorists Activities (Special Courts) Act, 1975 were pari materia material to the provisions contained in section 21D of the Anti-Terrorism Act, 1997 and consequently the ratio of the judgment is applicable.
4. On the other hand, Mr. Syed Madad Ali Shah, learned Amiens Curaie has contended that the consistent view of the Sindh High Court is at variation with the view expressed by the learned Judges of the Lahore High Court, in the case of Ghulam Nabi v. Bashir Ahmed and another (supra).
In support of his contention he has placed reliance on the following judgments:-
(1) Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki (PLD 1971 SC 242).
(2) Allied Bank of Pakistan Ltd. v. Khalid Farooq (1991 SCMR 599).
(3) Muhammad Ismail and others v. The State (1991 MLD 496).
(4) Sardar Imdad Khan v. The State (1996 PCr.LJ 272).
(5) Abdul Rasheed v. The State (PLD 2003 Karachi 682).
5. He has submitted that in the above judgments it has been held that the Special Judges exercising jurisdiction under the Suppression of Terrorists Activities (Special Courts) Act, 1975, Offences in Respect of Banks (Special Courts) Ordinance, 1984 and other Special Laws have the jurisdiction to grant pre-arrest bail to an accused person.
6. Learned Additional A.G. Has supported the view canvassed by Mr. Syed Madad All Shah the learned Amiens Curaie.
7. Mr. Anwar H. Ansari, learned counsel for the respondents has adopted the arguments addressed by Mr. Syed Madad All Shah.
8. Since point in issue already stands decided conclusively by various judgments of this Court as well as by the Honourable Supreme Court and the Division Bench decisions of this Court have placed reliance on the judgments of Honourable Supreme Court, we need not to dilate on the issue in depth or in detail. Since the issue already settled so far Sindh High Court is concerned, therefore, respectfully following the dicta laid down in the judgments on which Mr. Madad Ali Shah has placed reliance we are of the opinion that the Judge Anti-Terrorism Court has the jurisdiction to grant pre-arrest bail as well by virtue of the provisions contained in section 21D of the Anti- Terrorism Act, 1997.
9. Coming to the next contention of Mr. Aftab Ahmed Warraich, he has submitted that in similar circumstances a Division Bench of this Court cancelled the bail.. In support of his contention he has produced the copy of order dated 12-2-2004. The author of the order is one of us namely Muhammad Moosa K. Leghari, J. A perusal of the order shows that the bail granted was cancelled for the reason that the trial Court had not examined the material available before him and had not assigned any reason for granting the bail to the accused. It was observed that practice of granting bail to an accused of an offence falling within the purview of Anti-Terrorism Act without proper application of mind and merely on the basis of no objection extended by the prosecutor was highly undesirable and violative of the established principle of law.
10. A perusal of the impugned order shows that the learned Judge, Anti-Terrorism, Hyderabad and Mirpurkhas Divisions while granting interim pre-arrest bail and confirming the same has considered the facts and has kept in view that for the purpose of granting pre-arrest bail the condition precedent is to show mala B tide on the part of prosecution. The learned Judge has observed that there is political rivalry between the parties and they have been litigating up to the Supreme Court of Pakistan. The learned Judge has observed that the counsel for respondents produced photo copy of Petition No.293 of 2003 pending before Supreme Court of Pakistan. After consideration of all these facts the learned Judge came to the conclusion that it was a fit case for grant of bail. Thus the ratio of the order dated 12-2-2004 in Criminal Miscellaneous Application No.174 of 2003 is not attracted to the facts of the -present case for the simple reasons that the impugned order is a speaking order and the relevant consideration for the grant of bail before arrest has been discussed. For these reasons we do not find any substance in the second contention.
11. Consequent to the above findings we are of the opinion that the impugned order of the learned Judge is not open to any exception. We would like to clarify at this stage that the learned Additional A.G did not support the first plea raised by Mr. Warraich on the point of jurisdiction of trial Court but he has supported him on the point that on merits it was not a fit case for grant of pre-arrest bail.
The learned Additional A.G. Stated that the mala fide on the part of the prosecution has not been considered by the learned trial Court, but after perusal of the impugned order we are not persuaded to agree with the submission of learned Additional A.-G. The application for cancellation stands dismissed.