1. ' SARDAR MUHAMMAD SHARIF KHAN, ACTG. C. J.-The above noted references have arisen out of an amendment caused in the Cr. P. C. Through an Ordinance No, XXXVI dated 23-2-1980 in relation to section 497, Cr. P. C. Read with Amendment of Second Schedule, Act V of 1898 which is to the following effect: "3. Amendment of section 497, Act V of 1898.-In the said Code, in section 497, in subsection (1), in the Second Proviso, for the full-stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely : Provided further that the Court shall, except where it is of 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 his behalf, direct that any person shall be released on bail-
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded.
4. Amendment of Second Schedule, Act V of 1898-In the Code of Criminal Procedure, 1898 (Act V of 1898) as in .Force in the Azad Jammu & Kashmir, in the Second Schedule,for the heading {{TABLE TEXT}} OFFENCES AGAINST OTHER LAWS o cs er oc) cLaQ Ei P. CIQ 115 0.o cD CD cc) ry cr cel CD P tf3 a. .Cr CD CD cn CD CD "I I 2 CD 1 2 3 4 5 6 7 If punishable with death, May arrest Warrant Not bailable Not corn- Zilae Adalat. imprisonment for life, without poundable imprisonment exceeding 7 warrant years, amputation of hand or foot or both hand and foot or with whipping exceeding 80 stripes with or without any other of the said punishment. If punishable with imprison- ditto ditto ditto ditto ditto ment for 3 years upwards but not exceeding 7 years or with Except in whipping not exceeding 80 case under stripes with or without the Arms imprisonment. Act', 1878, section 19 wh ch shall be bailable. If punishable with imprison- Shall not ment for 1 year and upwards arrest with- Summons Bailable ditto Tehsil Adalat. but less than 3 years or with out warrant. Whipping not exceeding 40 stripes with or without imprisonment. If punishable with imprison- ditto ditto ditto ditto ... Ditto ment for less than 1 year or with whipping not exceeding 10 stripes with or with out imprisonment, or with fine only." {{TABLE TEXT}} ' In view of the amendments the accused who are under trials in the District Criminal Court Mirpur moved applications for their bail. They all stand charged with the offence of murder either under section 302 of the Penal Code or section 5 of the Islami Tazeerati Act which offence is non-bailable.
2. Their trial stands to be concluded yet. The learned Sessions Judge while looking into the bail applications came to the conclusion that further proviso added to section 497, C. P. C. By the said Ordinance is against the provision of Islami Tazeerati Act which was enacted on the basis of Qur'an and Sunnah and so according to him under section 27 of Islami Tazeerati Act read with section 32(1) of the same Act no bail for an offence treated as non-bailable could be granted to the accused applying for their bail under the the new proviso added to 497, Cr. P. C. As its application to a matter of bail cannot be made effective and operative in presence of sections 27 and 32(1) of the Islami Tazeerati Act.
3. ' On the other hand the other learned member of the Court, i. e. District Qazi is of the opinion that bail to an accused person of an offence of murder is not against the provision of Islamic Law. He has referred to a number of books pertaining to bails on Islamic Law which reveal that there is no absolute fetter placed on bail by Islamic Law.
4. ' The learned counsel for the parties were heard. The learned Sessions Judge is absolutely wrong to say that grant of bail to a person accused of murder in some existing circumstances, is against the injunction of the Quran and Sunnah. According to him every section of Islami Tazeerati Act appears to him to have been enacted on basis of the injunctions of the Quran and Sunnah. There is no such injunction in the Quran or Sunnah so as to debar the Court concerned to grant bail to a person accused of an offence of murder if circumstances allow to do so. Section 27 of Islami Tazeerati Act is to the following effect :- "Notwithstanding hnything contained to the contrary in the Cr. P. C. Or any other law for the time being in force, all offences under this Act shall be cognizable and non-bailable."
5. ' Section 32(1) of the Islami Tazeerati Act says that nothing will affect the offences, the decision of which is to be given by the District Criminal Court under this Act except a thing entered therein. By section 27 of the Islami Tazeerati Act we understand that the offences contained in the Penal Code which also fall under the provision of `Islami Tazeerati Act' were bailable and non-cognizable, were made non-boilable and cognizable under the provision of Islami Tazeerati Act. For instance offence of grievous hurt under section 325, P. C. Is a boilable offence corresponding to section 15 of the Islami Tazeerati Act read with section 27 of this very Act, which has been made non-boilable and so on and so forth. This cannot be interpreted to mean that powers of Court to grant bail have been taken away. In certain circumstances the Courts are empowered to take bail of the persons accused of non-bailable offences under the Cr. P. C. In boilable offences Courts are bound by law to let the accused go on bail. Section 27 read with section 32(2) of the Islami Tazeerati Act makes it crystal clear that in all cases or matters when there is no express provision in the Tazeerati Act, the provisions of of Pakistan Penal Code and Cr. P. C. Would apply. The amendment in the second Schedule of Criminal Procedure Code also indicates that a District Criminal Court trying the offence under the provision of Tazeerati Act is not debarred from exercising powers vested in it under section 497, Cr. P. C. The punishment for the offence of murder may be either death or retaliation, i,e, punishment of death by way of retaliation. Therefore, amendment in the Second Schedule by the said Ordinance brings the offence of murder as a rule within the ambit of Criminal Procedure Code concerning bail. No Presiding Officer of a court would do well if he speaks of the application of injunctions of the Qur'an and Sunnah somewhere in respect of a certain law without having requisite knowledge of the same.
6. That being so we are unable to agree with the view of the learned Sessions Judge and as such set aside the orders of refusal of bail to the accused persons which were made on a mistaken notion of law, viz. That the District Criminal Court is debarred from considering the matter of bail of a person accused of non-bailable offence. The instant bail applications thus shall stand pending on the file of the District Criminal Court which shall now be decided by it on merits according to law.