RAHMAT HUSSAIN JAFFERI, J.--- This order will dispose of Criminal Bail Applications Nos. 975 and 1218 of 2006 as common questions of facts and law are involved.
2. Brief facts giving rise to the Bail Application No.975 of 2006 are that the applicant was involved in the case of recovery of 5735.200 Kgs. Of Charas, therefore, A.N.F. Inspector challaned her to face trial for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 (C.N.S. Act) which carries punishment upto death. T4e applicant's bail plea on merits was rejected by this Court on 5-5-2004. The applicant being woman moved an application before the trial Court for grant of bail after promulgation. Of Ordinance XIII of 2006 by which section 497, Cr.P.C. Was amended. It was contended before the trial Court that the applicant was entitled to the grant of bail as a matter of right in view of the said Ordinance. The trial Court dismissed the application under the impugned order, dated 6-9-2006.
3. As the question; involved in the matter was of a public importance and decision might affect large number of cases, therefore, after framing the following point, notices were issued to D.A.-G.
And A.A.-G. To assist the Court.
"What is the impact of Ordinance No,XIII of 2006 on section 51 of Control of Narcotic Substances Act, 1997?"
4. We have heard the Advocate for the applicant, Special Prosecutor A.N.F., Mr. Mahmood Alain Rizvi, Standing Counsel, Mr. Habib Ahmed, A.A.-G. And Mr. Shoukat Hayat, Advocate who has appeared in another Bail Application No,1218 of 2006 of a woman accused involved in Anti-Terrorism case.
5. Learned Advocate for the applicant has stated that in view of the amendment in section 497, Cr.P.C. Through the Ordinance No,XIII of 2006 the applicant being woman is entitled to grant of bail as a matter of right as the offence has become bailable.
6. The learned Special Prosecutor A.N.F. Has stated that Ordinance No,XIII of 2006 is not applicable to the cases of C.N.S. Act as the said Act is Special Act which has overriding effect on the provisions of section 497, Cr.P.C. That is a general law; that section 497, Cr.P.C. Is not applicable as its operation has been excluded under section 51 of the C.N.S. Act. In support of his arguments he has relied upon an unreported order of the Lahore High Court in the case of Zarina Bibi alias Jenno Jalti v. State in Criminal Miscellaneous No,5299 of 2006 decided on 25-7-2006. In the above case the Lahore High Court has taken the view that amendment in section 497, Cr.P.C. Through Ordinance No,XIII of 2006 would not enlarge the scope of section 5t of C.N.S. Act, therefore, such amendment would not be applicable to C.N.S. Act cases.
7. Mr. Shoukat Hayat has argued that the Supreme Court in the case of Gul Zaman v. State 1999 SCM R 1271 and State v. Abdul Qayyum 2001 SCM R 14 has made section 498, Cr.P.C. Applicable in the cases of C.N.S. Act before the Sessions Court and High Court despite the bar contained in section 51 of the C.N.S. Act; that the provisions of section 497, Cr.P.C. With recent amendment are applicable in the cases under C.N.S. Act; that under the amendment in the case of woman accused all the offences have been made bailable except the cases of terrorism, financial corruption, murder and offences punishable with death or imprisonment for life or imprisonment for 10 years.
8. Learned Standing Counsel and A.A.-G. Have stated that Ordinance No,XIII of 2006 was a temporary Ordinance which had expired after four months of its promulgation; that another Ordinance No,XXXV of 2006 has been promulgated on 18-11-2006, which is applicable at present; that similar amendments have been made in section 497, Cr.P.C. As made in the Ordinance No,XIII of 2006; that the provisions of section 497, Cr.P.C. Have overriding effect on all laws for the time being in force because such words are appearing in the amended section; that the amendments in section 497, Cr.P.C. Are special provisions which deal with special class of people; that Constitution permits the State to enact laws for women and children; that the Parliament has made law in respect of children in the name of Juvenile Justice System Ordinance which has overriding effect on all laws; that under proviso to section 497, Cr.P.C. Bail to a woman involving .Death sentence cannot be granted as a matter of right but she can be granted bail on fulfilment of certain conditions mentioned thereunder; and that on merits the bail of the applicant has already been rejected by this Court, therefore, she cannot be enlarged on bail as a matter of right.
9. We have given due consideration to the arguments, gone through the material available on the record and relevant provisions of law.
10. Section 51 of the C:N.S. Act is as under:-- "51 No bail to be granted in respect of certain offences.--- (1) Notwithstanding any thing contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."
11. This section is divided into two parts. Under Part-I viz. Subsection (1) the accused whether male or female is not entitled to be released on bail if he or she is involved in an offence punishable with death and provisions of sections 496 and 497, Cr.P.C. Have been A specifically excluded from their application. Under second part viz. Subsection (2) the accused male or female involved in an offence which is punishable with less than death he or she is not normally required to be released on bail unless the Court is of opinion that it is a fit case for grant of bail subject to condition of furnishing security of substantial amount. Under subsection (2), the application of provisions of sections 496, and 497, Cr.P.C. Have not been excluded as such, bail, in such cases, can be granted on the fulfilment of the conditions mentioned thereunder.
12. It will be noticed that in subsection (1) application of the provisions of section 498, Cr.P.C. Have not been excluded. The impact of such omission has been considered by the Honourable Supreme Court of Pakistan in the case of Gul Zaman (supra). At page 1276 it has been observed as under:-- "The above section bars the grant of bail to an accused person under sections 496 and 497, Cr.P.C.
Only and that too when he is charged with an offence punishable with death. It is silent about the powers of Courts under section 498, Cr.P.C. Which is an independent section. It is pertinent to note that in section 51 of Act XXV of 1997 only sections 496 and 497, Cr.P.C. Are mentioned without any specific mention of section 498, Cr.P.C. Indicating that what was intended to have been excluded had been expressly excluded. If the Legislature had intended to exclude section 498, Cr.P.C. Also there is no reason why it should not have mentioned the same in section 51 of the Act. It otherwise looks anomalous that a Court may grant pre-arrest bail to a person accused of an offence punishable with death in exercise of powers under section 498, Cr.P.C. But the same Court would be incompetent to grant bail if approached by a person for bail after arrest on the same allegations."
13. Finally it was concluded that in view of provisions of section 498, Cr.P.C. Despite the bar contained in the section 51 of C.N.S. Act, the Sessions Court and High Court have the power to grant bail. The said rule 'was followed in the case of Abdul Qayyum (supra).
14. Now, it is to be seen whether, while exercising the powers of section 498, Cr.P.C. How far the provisions of section 497, Cr.P.C. Can be made applicable. This point was also considered by the Honourable Supreme Court of Pakistan in the case of Muhammad Ayub v. Muhammad Yaqub PLD 1966 SC 1003 and at page 1014 it has been observed as under:-- "The better view seems to me to be, that the policy of the law, in respect of bail to persons, accused of non-bailable offences, is laid down in section 497 and the same policy should be kept in view, while considering the question of bail under section 498, Criminal Procedure Code."
' Reference is also invited to Full Court decision of Honourable Supreme Court of Pakistan in the case of Sadiq Ali v. State PLD 1966 SC 589.
15. Thus, the restrictions and provisos in section 497, Cr.P.C. Are equally applicable to High Court and Sessions Court while exercising powers under section 498, Cr.P.C. In granting bail or otherwise in the cases under C.N.S. Act in respect of offences punishable with death.
16. By Ordinance No,XIII of 2006 certain amendments were made in section 497, Cr.P.C. On 8-7- 2006. It was a temporary Ordinance, therefore, its life was for 4 months only, hence it expired automatically after the expiry of said period. Another Ordinance No,XXXV of 2006 was promulgated on 8-11-2006 amending the provisions of section 497, Cr.P.C. That reads as under:-- "2. Amendment of section 497, Act V of 1898.--- In the Code of Criminal procedure, 1898 (V of 1898), in subsection (1), in the first proviso, the words "or any woman" shall be omitted and after the first proviso amended as aforesaid, the following new provisos shall be inserted; namely:-- ' Provided further that a woman accused of such an offence shall be released on bail, as if the offence is bailable, notwithstanding anything contained in Schedule-II to this Code or any other law for the time being in force: (underline ' Provided further that a woman may not be so released if there appear reasonable grounds for believing that she has been guilty of an offence relating to terrorism, financial corruption and murder and such offence is punishable with death or imprisonment for life or imprisonment for ten years, unless having regard to the facts and circumstances of the case, the Court directs that she may be released on bail: ' Provided further that where a woman accused of an offence is refused bail under the foregoing proviso, she shall be released on bail if she has been detained for a continuous period of six months and whose trial for such offence has not been concluded, unless the Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on her behalf."
17. Under first proviso, notwithstanding anything contained in the Schedule-II of the Cr.P.C. Or any other law, for the time being in force, a woman accused is required to be released on bail as if the offence mentioned in subsection (1) of section 497, Cr.P.C. Is bailable. Thus, for the purpose of woman accused such offence has been made bailable. However, under second proviso, the said concession of offence being bailable has apparently been snatched or withdrawn as she is not required to be released on bail if there appears reasonable ground for believing that she is guilty of offence relating to terrorism, financial corruption and murder and such offence punishable with death or imprisonment for life and imprisonment for ten years unless the Court directs that she may be released on bail keeping in view the facts and circumstances of the case. If the woman accused applies for bail under above proviso and her bail application is dismissed, then under third proviso she is required to be released on bail if she has remained in custody for a continuous period of six months and the trial of the case has not concluded subject to condition that the Court forms opinion that the delay in the trial has not occasioned by her fault or by her act or omission or any other person acting on her behalf.
18. The phrase "notwithstanding anything contained in the Schedule-II of the Code or any other law for the time being in force" appearing in section 497, Cr.P.C. Is very important and significant. The said phrase clearly demonstrates the intention of the legislature that the provisions of Ordinance No,XXXV of 2006 have overriding effect on all laws which were in force on the day of promulgation of the said Ordinance. It is not out of place to mention here that the Parliament knows all the laws of the land. It was within the knowledge of the Parliament that section 51 was available in C.N.S. Act but in spite of that the above phrase was added in the Ordinance giving overriding effect to all laws including section 51 of C.N.S. Act. The said intention can very well be gathered from the second proviso where specific reference of certain classes of cases and offences have been mentioned, particularly, the offence punishable with death, imprisonment for life or imprisonment for ten years.
Further under Article 25(3) of the Constitution, special laws relating to women and children can be made as the said Article postulates; "Nothing in this Article shall prevent the State from making any special provision for the protection of women and children". Thus, the Ordinance has given benefit to special class of people viz. Women, as such, it has specifically dealt with said class. Whereas the provisions of C.N.S. Act are, equally applicable to male and female. Thus, it is a general law for both the sects, hence Ordinance No,XXXV of 2006 which deals with only one class i.e. Women would be special law in comparison to the provisions of C.N.S. Act in respect of rights of women, therefore, it has overriding effect on the provisions of C.N.S. Act. Reliance is placed on a case of Qamar Hussain Shah v. State PLD 2006 Kar. 331 in which a detailed and comprehensive discussion has been made on the point as to which is special law and which is general law and it was held that special law would prevail over general law.
19. In the present case the bail application on merits has already been dismissed by this Court. The offence is punishable with death, therefore, the applicant's case does not fall under the first proviso to the Ordinance hence she is not entitled to be released on bail as a matter of right. Whereas under the third proviso to the Ordinance she is required to be released on bail on fulfilment of conditions mentioned therein but the trial Court did not attend to that aspect of the case. As such, there is no finding of the trial Court on the said issue. Therefore, she may repeat the bail application before the trial Court by invoking the provisions of third proviso to. The Ordinance and the trial Court should consider the application Within the parameters of the said proviso. Consequently the bail application is disposed of in the above terms.
20. As regards the Bail Application No,1218 of 2006 filed by Mst. Saima alias Sobia, the Anti-Terrorism Court has dismissed her bail application on merits and by taking into consideration the provisions of Ordinance No,XIII of 2006. In this case also there is no finding of the trial Court with regard to the third proviso to the Ordinance, therefore, she may, if so advised move an application by invoking the provisions of third proviso to the Ordinance and the trial Court should consider the application by giving specific finding as provided under the said proviso and then decide the same in accordance with law. As regards the merits of the case the application be fixed for deciding it on the said ground.