ABDUL RAHIM KAZI, J.-These are the applications moved by the appellants for grant of bail and for staying the operation of the forfeiture of property as well as recovery of fine in the above said three criminal appeals filed separately by the each appellant. We proposed to dispose of these applications by this common order for the reasons that the same involved the common points of facts and law.
2. Shortly the facts are that on 25-10-1988 at 13-30 hours, Police constable Rehmat Ali had lodged the report on behalf of the State with the Inspector CIA Sukkur, alleging that on the said date at about 12.45 Noon the said complainant along with P.C. Abdul Ghaffar of Traffic Police while assisting the Army Jawans stopped a Toyota Car of white colour having registration No.152-891 and that P.C. Abdul Ghaffar enquired from the Driver for the driving licence, who expressed that he had no licence, while the complainant found one person sitting beside the Driver holding a Kalashinkove with magzine between his legs, It is also alleged that they found the hand-bags from beneath the driver seat and rear seat containing the Kalashinkove bullets which were secured by them and the present appellants were thereafter taken to the CIA Office Sukkur, where the report was entered in the Roznamcha, which was subsequently forwarded to Police Station A-Scction, Sukkur, and they were uItimately challaned on 4-11-1988 and convicted by the impugned judgment announced on 15-12-1988.
The first question arose as to whether we can exercise the jurisdiction to grant bail in view of the barring provisions of Section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. It will be advantageous to reproduce the contents of Section 7, which read as under: "7.-(l) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, and the Provincial Government may direct any person appointed by it for the purpose to present an appeal to the High C'ourt from an order of acquittal passed by a Special Court, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under sub-section (1) shall be preferred to the High Court within thirty days of the passing of the sentence or order of acquittal, as the case may be, and shall be heard and decided by a Bench of not less than two Judges of the High Court.
(3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences pased by a Special Court."
3. MrAftab Ahmed AKhound, learned counsel for the appellants, has argued that the appeal against the sentence ordered by the Specieal Court is provided under Section 7 of the Act, which further provides that the appeal shall be heard and decided by a Bench of not less than two Judges of the High Court. For the convenience sake we will refer to the Bench of two Judges hearing the appeal as Division Bench. Mr. Akhound has further argued that Section 7 actually comprises of two parts, the first part reads, "A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed" while the second part starts with the words "but save as aforesaid and notwithstanding the provisions of Code................. ".
By this Mr.Aftab Ahmed Akhound has argued that the words "no court" as used in the second part of sub-section (1) of Section 7 do not apply to the Division Bench hearing the appeal, but the same are applicable to any other court including High Court as exercising jurisdiction under Criminal Procedure Code. In support of his contention, he has relied on a Division Bench decision of the erstwhile High Court of Sind and Baluchistan in the case of MIRZA JAWAD BEG V. THE STATE (PLD 1975 Karachi 628). In the above case the Division Bench has discussed the provisions of Section 7 of the Act at length independently as well as in comparison with the provisions of Sepcial Criminal Courts Ordinance, 1942, together with its amendment in 1943. The entire history ol the Act has also been taken into consideration and their lordships have held: "10. I am aware that redundancy is not to be lightly attributed to the Legislature, accordingly the submission of the State counsel was that we could not construe section 7 in a manner which would render redundant the references to section 426 and 498 of the Code. Now, the difficuIty is that the section is so obscurely worded that some part or the other is redundant. 1 pointed out that section 7(1) is divided into two parts, separated by the words "but save as aforesaid and". Nothing turns on the first and the last of these words, which would have been sufficient to divide the section into two parts, if that had been the intention of the Legislature, as submitted by the learned counsel for the State. However, the Legislature has also inserted the words "save as aforesaid", and these words, in my humble opinion, have been inserted not merely to separate the two parts ol the subsection, but to make it clear that the powers of the Court set up under the first part of the subsection (namely the Division Bench) shall not be curtailed by the restrictions contained in the second part of the subsection. Any other construction would render the words "save as aforesaid" redundant, so the question is really which set of the words are redundant? I agree with the learned Advocate-General and the learned Additional Advocate-General that this difficuIt question must be decided in the light of the history of the section, but that history is fatal to their submission, and I cannot believe that the Legislature copied almost verbatim section 26 in order to enact something totally different from what was contained in section 26. Additionally, our laws lean in favour of the liberty of the subject, and penal provisions have always been construed strictly. Accordingly, whilst I repeat that the matter is not free from doubt, in my humble opinion, section 7 has not taken away the power of the Division Bench to grant bail to an appellant is an appropriate case.
11. However, if I am wrong, even according to the learned Advocate-General and the learned Additional Advocate-General, the curtailment in section 7 is of the powers of the Division Bench under section 426 of the Code, therefore, if the Division Bench has a power of granting interlocutory relief independently of the provisions of the Code, obviously this power would not be affected by the restrictions, or the alleged restrictions contained in section 7. The learned counsel for the State naturally sumitted that the Division Bench did not have any independent or implied power of granting bail, but Mr.Khalid M. Ishaq's submission was to the contrary, I will now examine this submission, and, as this submission was based only on the judgments of the Supreme Court, I would now examine them.'"
4. In the said case, their lordships have also placed reliance on the case of THE COMMISSIONER.
KHAIRPUR DIVISION. KHAIRPUR AND ANOTHER V. AU SHER SARKI (PLD 1971 SC 242) and the case of THE SIND EMPLOYEES' SOCIAL SECURITY INSTITUTION AND ANOTHER V. ADAMJEE COTTON MILLS ITD. (PLD 1975 SC 32) and on the principles that where an act confers the jurisdiction it also grants the power of doing all such acts or implying such means as are essential and necessary to its execution and also the view taken by their lordships is that an appellate authority has an implied power to grant relief which is ancillary or incidental to the appeal before that authority.
Mr.Aftab Ahmed Akhound, learned counsel for the appellants, then cited the case of SYED ZEESHAN AKHTAR ZAIDI V. THE STATE (1988 P Cr.L J 843). This is the case decided by the Division Bench of AJMAL MIAN (as his lordship then was) and ALLAHDINO G. MEMON, J.J. This was a case in which conviction was awarded under the provisions of Banks (Sepcial Courts) Ordinance of 1984 and it was contended that Section 10 of the said Ordinance provided a specific bar to exercise of jurisdiction under section 426, 491 and 498 of the Criminal Procedure Code. It will be seen that the provisions of Section 10 of this Ordinance are verbatim the same as that of section 7 of the Suppression of Terrorist Activities (Special Courts Act, 1975. The same are reproduced herein below: "10. APPEALS FROM SENTENCES PASSED BY SPECIAL COURT, ETC.- (1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under sub-section (1) shall be preferred to the High Court within thirty days of the passing by the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court
3. Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court."
Their lordships, in the above case of Syed Zeeshan Akhtar Zaidi have taken into consideration the judgment in the case of Mirza Jawad Beg as cited above and also the judgment given by the Hon'ble Supreme Court in the case of CH. ZAHUR ILLAHI. M NA. V. 1HE STATE (PLD 1977 SC 273) and the cases reported in 1986 P,Cr.U578 and 1987. P Cr.LJ 737 which are also cited by the learned counsel for the appellants.
5. In the above said case of Syed Zeeshan Akhtar Zaidi, their lordships after having discussed the above said case, have held: "7. We are inclined to hold that the Division Bench may not be competent to admit an appellant to bail under section 426, Cr.P.C, but it is competent to pass an interim order during the pendency of the appeal in a fit case on the principles enanciated in the above 2 Supreme Court cases namely, the Commissioner. Khairpur Division. Khairpur and another V, Ali Sher Sarki (PLD 1971 SC 2421 and the case of Sind Employees' Social Security Institution and another Vs. Adamjee Cotton Mills Itd (PLD 1975 SC 321.
However, we are also of the view that in view of the language employed in sub-section (1) of section 10 of the Ordinance, the interim order cannot be passed either for suspension of the sentence or for grant of an interim bail as a matter of course but a very exceptional case is to be made out. We may point out that the cases under the ordinance cannot be equated with the cases under the Pakistan Penal Code for bail matter. The object of the Ordinance seems to be to eliminate the commission of fraud in respect of the Banks' money, which generally in fact belong to the account- holders and, therefore, inter alia it has been provided in Section 6(3) of the Ordinance that the fine amount to be imposed along with the substantive sentence should not be less than twice of the specified amount, in respect of which the offence has been committed. In the instant case the Special Court found that the fraud was committed in respect of Rs.5, 72, 689 and, therefore, the fine amount imposed is Rs.12- lacs. If we were to admit the appellant to bail against the surety bond amount, say of Rs.50,000 or of Rs.11,00,000 the appellant might abscond but if we were to fix the amount of bail bond equivalent to the above amount of fine, namely, Rs.12 lacs it may amount to denial of bail.
We may also observe that a distinction is to be drawn while dealing with a bail application between a case when a matter is pending before the Special Court for trial and when it is pending in an appeal against the conviction.
The above distinction is evident from the language employed by above subsection (1) of section 10 of the Ordinance. We may also point out that even in bailable offences after conviction a convict cannot claim bail as of right during the pendency of the appeal, In this behalf, reference may be made to the case of Abdul Karim and others v. The State and another reported in 1969 SCM R 312, in which Hamoodur Rehman, C.J. Sitting with M.R.Khan, J., while declining leave against the order of the erstwhile High Court of West Pakistan, Lahorc refusing to grant bail after conviction for a bailable offence, held that there can be no such general rule that in every case where a person is convicted of a bailable offence he must be enlarged on bail during the pendency of the appeal and that Section 426, Cr.P.C, clearly gives a discretion to the High Court to grant or refuse bail aIthough this discretion must, like all other discretions, to be exercised upon sound judicial principles."
Mr. A.Hafeez Lakho, learned Advocate-General, appearing for the State has not controverted the above said legal position nor he could cite any law in that respect. He has submitted that the trends of court is not to lean in favour of ouster of jurisdiction in case of grant of bail or extending benefit to an accused person of certain beneficial provisions of the relevant law. From the above discussion, we are of the view that the Division Bench hearing the appeal has the power to grant relief which is ancillary or incidental to the appeal. This power may not be construed to mean that the bail or suspension of the sentence in appeals is to be granted as a matter of course but a very exceptional case is to be made out.
6. Having held above that such interim relief can be granted, we now proceed to examine the case on merits. Mr. Aftab Ahmed Akhound, learned counsel for the appellants, has argued that the appellants in all the three appeals were travelling in the said motor car but they have been apprehended by the police who is said to be assisting the Army Jawans at Ghanta-Ghar in Sukkur Town, but very surprisingly they were not taken to the Police Station A-Section Sukkur, which is only about 20 paces away from that place, but they were brought to the office of the CIA Inspector at Old Sukkur, which is at a distance of 2/3 miles from the said place. He has also pointed out that admittedly no mashirnama of securing the alleged Kalashinkove and bullets was prepared by the police at the place the appellants were apprehended but the same was prepared in the office of the CIA Inspector, where the appellants were taken and where the said arms and ammunition were produced before the Inspector by the complainant and also that no person from public was taken as a mashir. He has also pointed out a few the inconsistencies and discrepancies. He has further argued that this is a false case foisted on the appellants due to political enmity of Mr.Rahim Bux Soomro, Ex.Minister in the Federal Cabinet.Mr.A.Hafeez Lakho. Learned Advocate-General, appearing for the State has frankly conceded that a case for grant of bail has been made out for the appellants and that he has no objection to grant of bail.In view of the above circumstances, we allow the above said applications and suspend the sentence and order passed by the lower court on 15-12-1988, and further direct the appellants to be released on bail in the sum of Rs.50,000/- with one surety on furnishing PR bond in like amount in each case, to the satisfaction of the Nazir of this Court.