' SHAH NAWAZ KHAN, J.--Case referred to this Full Bench is for the decision of the point, "As to whether in cases triable by Special Court, the Nigh Court has jurisdiction to grant bail."
2. Similar question had come up for decision earlier before this Court and a Division Bench in Criminal Miscellaneous Petition No, 501/1974 entitled Haji Taj Muhammad Khan v. State decided on 5-12-1974 held that, "the learned counsel says that words "or by any other Court" appearing in this subsection (6) of section 5 (of Act XV of 1975) would appear to reveal the intention of Legislature that this Court would have jurisdiction in the matter. But with respect, this cannot be the position.
The words "or by any other Court" would perhaps appear to refer to the constitutional jurisdiction of High Court under Article 199 of the Constitution, as its jurisdiction thereunder cannot be taken away without the amendment of the Constitution and not to proceedings by way of present application.
In point of fact, the all-embracing language of section 7 of Ordinance (Act XV of 1975) would clearly convey the intention of Legislature that this Court, in proceedings such as the present one, would have no jurisdiction to grant bail to a person accused of offences under Ordinance XVIII of 1974 (Act XV of 1975).
3. In another case of the same nature i.e, Criminal Miscellaneous No, 95 of 1976 entitled Muhammad Yousaf v. State this question again came up for determination before a Division Bench of this Court and it was decided on 10th March of 1976, wherein the old view of this Court was adhered to and it was held that, "Evidently, therefore, the question of jurisdiction of this Court to grant him bail does not arise." The application of Muhammad Yousaf, who was facing trial before the Special Court at Peshawar was onsequently rejected.
4. Yet another case was cited before us in which the Special Court constituted under the Suppression of the Terrorist Activities (Special Courts) Act of 1975, had cancelled the bail bond of the petitioners, earlier granted to them, by the Sessions Judge and it was held that ordinary criminal Courts had no jurisdiction to grant bail in scheduled offences exclusively triable by the Special Court. One of the arguments advanced in that case was that no doubt the trial of such a case by an ordinary criminal Court was barred but there was no bar to the determination of his bail application. However this argument was not accepted by the Special Judge.
5. We have heard the arguments addressed before us by the learned counsel for the petitioners and the learned A.A.-G. Who appeared on behalf of the State.
6. In section 5(6) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, it is provided that, "an accused person shall not be released on bail by a Special Court or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released."
Relevant for the instant purpose are the words, "an accused person shall not be 'released on bail by a Special Court or by any other Court" Here the right of the accused person to seek bail or the power of the Special Court or any other Court to grant bail are dependent on the clear cut provision that there does not appear reasonable grounds for believing that he has been guilty of a scheduled offence. If there are reasonable grounds for believing that the accused, has been guilty of a scheduled offence then he cannot be released on bail, either by the Special Court or by any other Court. It is thus obvious that the provisions of subsection (6) of section 5 will be applicable to a case in which no conviction has been recorded and an appeal will be lodged to the higher tribunal only if a person is sentenced by a Special Court, under section 7 of the said Act. In section 7, once the conviction is recorded and an accused person is sentenced by a Special Court, then it is provided that, "No Court shall have the authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 of section 491 or section 498 of the Code of Criminal Prpcedure. This section does not appear to be very clear because transfer of a case from a Special Court may arise if a case is pending before a Special Court. Anyhow it has been made clear therein that after a person is sentenced by a Special Court and he exercises the right of appeal to the High Court, then the E sentence shall not be suspended nor he shall be released on bail.
7. It will be appreciated that under section 7 of the Act an appeal lies to the High Court within whose jurisdiction the sentence has been passed and person sentenced by Special Court has the right of appeal. On merits, the High Court may feel satisfied that the order passed against the accused (appellant) was prima facie not justified. In that view of the matter, on the acceptance of the appeal the accused would be acquitted. Of course there is no provision that the appeal Should be heard within any specified period and what will happen if the appeal comes up for hearing, say after one year. But at the moment, we are not concerned with that aspect of the case. The petitioners in this case are yet to face trial and their case is still under investigation and it is also not, clear, whether or not the challan will be submitted before a Special Court or it will be required to be tried by an ordinary criminal Court. In the F.I.R. It has not been mentioned, if any kerosene oil had been used for causing fire to the residential Kotha. It was, however, in the course of investigation, that the Investigating Officer found some evidence, to the effect that kerosene oil was used by the culprits while setting fire to the Kotha. However, the alleged eye-witnesses in their sworn affidavits filed in the High Court in connection with the bail application of the petitioners have deposed that they have never stated so before the Police or a Magistrate that kerosene oil had been used.
8. In section 4 of Act XV of 1975, it is provided that, "notwith- standing anything contained in the Code, the Scheduled offences shall be triable exclusively by a Special Court". With that object in view, the intention becomes clear and therefore, if a scheduled offence is committed, the case shall be exclusively triable by a Special Court and no other Court can try it. But the words used in subsection (6) of section 5 are that. "An accused person shall not be released on bail by the Special Court or by any other Court if " It could therefore be unnatural if these words were to be interpreted, that they have no meaning and that the same have been used redundantly and the sole power to release an accused person on bail rests only with a Special Court and with noneelse.
This power is further controlled by the condition, as laid down in subsection (6) of section 5 and that is that if that Court has reason to believe that there are grounds that the accused has been guilty of a sheduled offence, then he shall not release him on bail. But what would be the occasion for any other Court to release or not to release any person who is accused of a scheduled offence.
It is obvious that when a case is registered by the police and someone charged for a scheduled offence, is apprehended then from whom his remand would be taken? When the accused is produced before a Magistrate and he is required to be remanded to police custody or to be sent to judicial lock-up, that very Magistrate will be required to exercise the powers conferred on him under the law. Here the question would arise under what provision of law, he will remand the accused to police custody or send him to judicial lock-up because by then the Special Court would have not taken cognizance of the case, as under the law the main responsibility of the Special Court is to try D a man accused of a scheduled offence. When will he try that accused person and what will happen to the accused before the trial commences and after he is arrested after the registration of a case. This is stage for which besides a Special Judge some other Courts have also be authorized to exercise jurisdiction and perform certain duties as otherwise investigation may take sufficiently long time and an accused person shall not be released on bail by any other Court while the Special Court will assume jurisdiction only when the challan is submitted for trial before him. Again under subsection (6) of section 5 of the Act XV of 1975, it is only when an accused is guilty of a scheduled offence, then he can neither be released on bail by Special Court nor by any other Court dealing with the case. Otherwise the Special Court, if it is seized of the jurisdiction and any other Court, before that, may consider the bail application of a person amused of an offence and release him, if he is legally entitled to such release. It therefore, E follows that if any Court other than a Special Court is also empowered to release a man on bail, under subsection (6) of section 5, then th High Court will be in a position to consider the petitioner's bail application and can release them if there are no reasonable grounds for believin that they have been guilty of a scheduled offence. In the instant case, there is no allegation in the F.I.R. That kerosene oil had been used while setting fire to the Kotha and as indicated, it was in the cours of investigation that some evidence was procured by the I.O. -in .Tha regard but the alleged eye-witnesses have now submitted affidavits in Court and have stated that no kerosene oil had been .Used in th occurrence.
It would thus appear proper to say that presently there are no reasonable grounds for believing that kerosene oil had been used and therefore the offence of which the petitioners are accused( may not fall within the category of scheduled offences.
9 We are consequently of the view that nothwithstanding anything contained in the Suppression of the Terrorists Activities (Special Courts) Act, 1975, in the instant case, as prime facie a scheduled offence is not revealed, the High Court will be in a position to consider the bai application of the petitioners. It therefore, follows that the Session Judge before whom the petition for bail was pending and who did not exercise his jurisdiction, should have entertained the bail application and should have disposed it of, in the normal way.
10 In view of the well-established principle of interpretation when a statute mentions one or more things of a particular class, it may be regarded as silently excluding other things of the same class or similar classes not expressly mentioned.But the Rule is not absolute in its application.It is equally well-established principle that in construing a statute, the construction which is most agreeable to justice and reason is to be preferred. Maxwell in the interpretation of the statutes, 1969 edition, Chapter 10, which sets out an impressive array of ancient and modern precedents, in which Courts, by adhering to the above principle and without any violence to the language of the statute, have by liberal interpretation averted what would have been otherwise inconvenient or unreasonable results.Therefore, if the choice is between the two interpretations, narrower of which would fail to achieve the manifest purpose of the legislation, one should lean against a construction which would reduce the legislation to a futility and rather accept the broader construction based on the view that the Legislature would legislate only for the purpose of bringing about effective result PLD 1975 SC 32.
' In Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar. 164, the Sind and Baluchistan High Court on the question of the nterpretation of the statutes and with regard to the value of precedents in respect of written laws, observed that:- "The value of precedents in respect of written law lies in the elucidation which they provide but a precedent remains binding only until it does not come into conflict with a statute. The necessity ordinarily arises if there is an ambiguity or uncertainty to be clarified or if there is a disagreement of views between the Court and counsel or if there is a conflict in judicial opinion...."
In subsection (6) of section 5 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the language used is very clear and it is specified that, "An accused person shall not be released on bail by a Special Court or of any other Court if " One would hardly face any necessity to clarify any ambiguity or uncertainty.
11 ' In Ch.Zahur Ilahi, v. The State PLD 1977 SC 273, it was observed by the Supreme Court that, the jurisdiction of the superior Courts would not be taken away except by express words or necessary implication.It was clearly laid down that the jurisdiction of a High Court cannot be abolished or ousted unless this is done by express words or clear intendment. Further that it is well-established principle relating to the construction of statutes that the exclusion of jurisdiction of superior Courts is not to be readily inferred. An examination of the provision of Act XV of 1975, as a whole, shows that the Special Court in constituted only for the trial of the cases entrusted to it, which are scheduled offences. As indicated above, there is nothing in this Act to show that a Special Court can deal with such cases in their preparatory stages up to the point when they are made ready for trial. Therefore the proceedings before the Special Court within the meaning of subsection (6) of section 5 of the said Act have a special connotation. The protec tion, if any, extended by this subsection is confined to the proceedings before the Special Court properly so-called and not to any and every proceedings before it. It is well-settled that custody is not meant to be a punishment.
12. In the above-mentioned case of Ch.Zahur Ilahi, the Supreme Court observed, after taking note of the fact that the law does not clothe the Special Court with powers to try a case quickly without avoidable loss of time, that "If however, due to the lack of foresight on the part of the Legislature or the authority concerned, the Scheme of (Law) in regard to vital part fails, the sanctity of the other part must of necessity by affected and what appeared to be rigid must give way to flexibility". In such a situation, "it should regard the opposition as unreasonable and grant bail". The specific mention of section 491 of the Code, in section 7 of the Act has the effect of excluding the jurisdiction of the High Court under section 491 of the Code in respect of any proceedings of a Special Court.
This exclusion however does not affect the jurisdiction of the High Court under section 491 in respect of a person against whom the Special Court has not yet taken cognizance of the case.
According to Muhammad Gul, J. In the said case, "On a proper construction of the relevant provisions of law, the High Court has the jurisdiction to allow bail, even though the Special Court has refused bail to the petitioner".It is now well-settled that the High Court has independent or concurrent jurisdiction to grant bail under section 498, Cr.P.C.
13. The provisions of section 7 read as a whole make it clear that prohibition contained therein particularly when the sentence is passed, is directed against the revision, transfer of a case or an order under section 426, or section 491 or section 498, Cr.P.C. After this enumeration, follows the general prohibition. "In respect of any P proceedings of a Special Court". There can be no two opinions that, once it is held that the jurisdiction to grant bail vests exclusively in the Special Court then it must necessarily follow that no other Court can deal with such matter. But the words used in subsection (6) of section 5 do not confer exclusive jurisdiction on Special Court and it is stated therein that "the accused person shall not be released on bail by a Special Court or by any other Court if Subsection (6) of section 5 deals with a pre-conviction stage, in which the sentence has not been passed and while it is still in doubt whether any scheduled offence has been committed or not and as to whether the accused has committed any scheduled offence in the stage in which the present case is.
14. Considering the entire position, we are of the view that prima facie reasonable grounds appear to exist, which give rise to the belief that the allegations of mala fide may not be untrue. But this expression is of a tentative view analogous to the opinion of the Court which it is called upon to express at the pre-trial stage in bail matters under section 497, Cr.P.0 and this prima facie finding may be good enough) to justify the grant of interim bail to the petitioners.
We are, therefore, of the opinion that in view of the provisions of subsection (6) of section 5 of the Suppression of Terrorists Activities (Special Courts) Act, 1975, the High Court can grant bail to a person accused of offence under section 436, P.P.C. At the pre-trial stage.
' In a Karachi case reported as PLD 1975 Kar. 628, a Division Bench of that Court even went to the extent of allowing bail to the appellant in an appropriate case although the power of the High Court under section 426, Cr.P.C. Has been curtailed by section 7 of Act XV of 1975.
The result of the above discussion is that we accept this petition of the petitioners. They shall be released on furnishing bail bond in the sum of Rs, 25,000 (twenty-five thousand) with two sureties each to the satisfaction of the Ilaqa Magistrate provided he/they are not required in any other case.