1. ' During a raid on the Hujra of Taza Gul situated in village Marozai on the report that the petitioner had harboured there some absconders, while Riaz and Ali Muhammad, wanted by the police were arrested; the petitioner was also taken into custody on the charge of being in possession of two hand-grenades, punishable under section 216, P.P.C. And section 4/5 of the Explosive Substances Act, 1908 by the Raiding Police Party. A case was consequently registered vide F.I.R. No,209 dated 5- 7-1988, Police Station, Badaber.
2. ' The petitioner moved an application with the Special Court set up under the Suppression of Terrorist Activities (Special Courts) Ordinance, 1974 (hereinafter referred to as the Ordinance) but his prayer for release on bail was not acceded to and his application was consequently rejected.
3. He has now approached this Court presumably under section 497, Cr.P.C. For his release on bail till the decision of the case by the Special Court.
4. ' On the last hearing of this case on 5-11-1988 a question of jurisdiction of this Court arose, particularly in the light of a case Muhammad Gul and another v. State decided by a Full Bench of this Court and reported in 1985 P.Cr.L J 205. The case was adjourned on the request of the learned counsel for the petitioner and the State to address arguments on the point.
5. ' Mr. Inamullah, Advocate the learned counsel for the petitioner contended that with reference to section 7 of the Ordinance the only provisions of the Code of Criminal Procedure to which the principle of ouster of jurisdiction can apply are sections 426, 491 and 498 of the Code and that section 497 as such is conspicuous by its omission. He therefore maintains that this Court has the jurisdiction to release a person on bail even if, for the purpose of trial of such offences as the petitioner is charged with, the power exclusively vests in the Special Court. On the other hand Mian Muhammad Ajmal the learned Additional Advocate-General contended that so far as section 7 of the Ordinance is concerned, it envisages a wholesale ouster of jurisdiction of any other Court inasmuch as it ends with the sentence any jurisdiction of any kind in respect of any proceedings of a Special Court.
6. ' On the point of jurisdiction as to whether in a case triable by a Tribunal of exclusive jurisdiction, the High Court has the jurisdiction to grant bail, the same has come up for decision before this Court a number of times earlier. In Cr.Misc. Petition No,501/1974 Haji Taj Muhammad Khan v. State decided on 5-12-1974, a Division Bench of this Court held that the words "or by any other Court" appearing in subsection (6) of section 5 of Ordinance XVIII of 1974 (Act XV of 1975), 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 a bail application. It was further observed in the same judgment that the all-embracing language of section 7 of the 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 the Ordinance (Act XV of 1975). In a case of similar nature i.e,Cr.95 of 1976 Muhammad Yousaf v. State, the question of jurisdiction with reference to subsection (6) of section 5 of the Act was also examined and a Division Bench of this Court in its decision dated 10th March, 1977 adhered to the earlier view. In Haji Taj Muhammad's case again similar situation arose before this Court on the application for cancellation of the to the petitioners earlier by the Sessions Judge and it was held in the case that the ordinary criminal Courts had no jurisdiction to grant bail in scheduled offences exclusively triable by the Special Court.
7. ' When Muhammad Gui's application for bail came up for hearing, it was found difficult for a Division Bench of this Court to adjudicate authoritatively in view of the aforementioned decisions and the matter was referred to Full Bench and in consequence came the judgment in case reported in 1985 P Cr. L J 205.
8. ' Both the learned counsel for the parties relied on this judgment. I have heard at length both the learned counsel for the parties on the point in issue. My reading of the Full Bench case cited at the Bar is that in the cases exclusively triable by the Special Court set up under Act XV of 1975, where the challan against a person accused of a scheduled offence, is not yet submitted before the Special Court and the case is still at the investigation stage, the High Court has the power under section 498 Cr.P.C. To entertain a baii application and in a fit case, that is to say, in the absence of there appearing reasonable grounds for believing that he has been guilty of a scheduled offence, he can be released on bail. But once the challan has been submitted in, and the cognizance has been taken by, the Special Court, no other Court, including a High Court, would be left with any jurisdiction to be exercised in entertaining the bail application of such an accused person save the Special Court itself. This interpretation of subsection (6) of section 5 read with section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 is also founded on quite reasonable basis in that by the time the challan is yet to be submitted, it is not certain, and in fact yet to be determined, whether such conclusive proof has come forth during the investigation as to raise reasonable grounds for believing that the accused has been guilty of a scheduled offence and in the same sequence of events whether the challan shall be submitted before the Special Court or as the case may be, in an ordinary Court of original criminal jurisdiction. The finale of Muhammad Gul's case, when answered the reference is in the following words: - "We are therefore of the opinion that in view of the provisions of subsection (6) of section 5 of the Suppression of Terrorist 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." ' and lends ample support to the conclusion arrived at by me in this regard, inasmuch as the words 'at the pre-trial stage' are not only significant but reflect the whole ratio of the decision. With this. I believe there will be no confusion left any more about the jurisdiction of this Court under subsection (6) of section 5 of Act XV of 1975, in matters of bail of a person accused of the scheduled offence.
9. ' Turning now to the case in hand, the learned Additional Advocate-General informed that the case is still at the investigation stage. Therefore, there cannot be any question of want of jurisdiction following the dictum laid down in Muhammad Gul's case.
10. ' On merits the learned counsel for the petitioner attempted to introduce possibilities and probabilities of the hand-grenade to be in possesesion of the absconders arrested from the spot.
11. He also questioned the recovery as being not in conformity with the provisions of section 103 of the Code of Criminal Procedure. This is a ground which can be pressed into service at the trial and can be decided on the basis of evidence recorded in this regard.
12. ' It may also be pertinent to note that while exercising jurisdiction under the relevant provisions of the Code of Criminal Procedure, subsection (6) of section 5 of the Act shall have to be kept in view which, in a manner, deviates from section 497 Cr.P.C. In that it is prohibitory in nature when it states that: "An accused person shall not be released on bail , if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; .............................................................
13. ' Reasonable grounds cannot be equated with reasonable proof and if there is prima facie evidence to link the accused person with the offence he is charged with, it can amply given rise to reasonable grounds which, I am afraid, are not lacking in this case.
14. ' The two hand-grenades were allegedly recovered from underneath the pillow of the petitioner while he was asleep on the bed in the Hujra at the time of the raid.
15. ' The impugned order of the learned Judge Special Court, shows that after taking into consideration all the material available on the record, he found that there appeared reasonable grounds for believing the petitioner to be guilty of the offence and rejected his application; and as such it does not suffer from any factual or legal error.
16. ' In the light of the foregoing discussion, I find this bail application without any force and consequently it is rejected hereby.
17. Bail application rejected.