' TANZIL-UR-RAHMAN, J.---This is a revision application under section 439 read with section 561-A, Cr.P.C. Against an order dated 27-1-1990, rejecting an application moved by the applicant under section 540, Cr.P.C. For recalling a witness Mohammad Khan, S.I.P.
2. Mr. Syed Sarfraz Ahmed, learned A.A.G., has taken a preliminary objection to the maintainability of the above revision. Reliance is placed by him on a Division Bench decision of this Court, reported as Habib Bank Ltd. v. The State and 6 others PLD 1988 Kar.
49. Reliance is also placed by him on the cases of Gul Muhammad and 2 others v. The State 1987 PCr.LJ 737, Ubedullah v. The State 1989 PCr.LJ 626 and Aftab Ahmed Shah v. The State 1989 PCr.LJ 112. {{BLUR PAGE}}
3. Before discussing the case-law as cited by Mr. Sarfraz Ahmed, we would like to say a few words about the scheme of the Suppression of Terrorist Activities (Special Courts) Act, 1975, as the special provisions have been referred to in those decisions. This Act was promulgated on 3rd February, 1975, in order to provide for suppression of acts of sabotage, subversion and terrorism. It seems pertinent to refer to sections 3 to 7 and 10 of the said Act. Section 3 provides for the constitution of Special Courts. Section 4 provides for its jurisdiction, as notwithstanding anything contained in the Code of Criminal dure, 1898, the scheduled offences shall be triable exclusively by a Special A schedule of such offences triable by Special Court has been appended t. Section 5 prescribes its procedure. Sub-section (6) of section 5, e power of Special Court, which is reproduced as under- (6)--Anv 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 he so released." {{ BLUR PAGE }} Section 6 provides for powers of Special Court that it "may pass any sentence authorised by law, and shall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction. Section 7 relates to bail from sentences imposed by Special Court which, as amended, reads as under:-- "7.--(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, and the Provincial Government may direct any person appointed by it for the purpose of presenting an appeal to the High Court 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 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 subsection (1) shall be referred to the High Court within thirty days of the passing of the sentence or order of acquittal, as the case may, 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."
' Section 10 provides that the Act is to override other laws, which reads as under:-- "10. Act to override other laws.--The provisions of this Act shall have effect nothvvithstanding anything contained in the Code or in any other law for the time being in force." {{ BLUR PAGE }} ' Now, adverting to the decisions cited by Mr. Syed Sarfraz Ahmed, the first case PLD 1988 Kar. 49, decided by a Division Bench of this Court, comprising of Ajmal Mian and Haider Ali Pirzada, JJ., relates to the question of maintainability of an acquittal appeal against the acquittal by Special Court constituted under Offences in respect of Banks (Special Courts) Ordinance IX of 1984, wherein, inter alia, on the question of maintainability of the revs application under sections 435 and 439 Cr.P.C., it was observed that " inclined to hold that merely the fact that a Special Court is to f procedure prescribed by the Code for the trial of cases by Magistrates with respect to which no procedure has been prescribed by the Ordivia fact that the appeal is provided to the High Court in terms of subsection section 10 of the Ordinance does not make a Special Court an inferior Cour terms of section 435 or for the purpose of section 439 of the Code. The language used in subsection (1) of section 10 of the Ordinance, as pointed out hereinabove, is so strictly worded in the negative form that it does not admit the application of the above provisions for providing a right of revision." {{ BLUR PAGE }}
(i) In the second case 1987 P.Cr.L.J. 737 a Division Bench of thj Court, comprising of Nasir Aslam Zahid and Ally Madad Shah, JJ., while considering the question of the grant of bail under section 497 Cr.P.C. In a case under the Suppression of Terrorists Activities (Special Courts) Act, 1975, after considering the similarities between the provisions of section 10 of the Offences relating to Banks (Special Courts) Ordinance, 1984, and the Suppression of Terrorist Activities (Special Courts) Act, 1975, came to the conclusion that the provisions of 1984 Ordinance are identical to the provisions of section 5(6) of the Suppression of Terrorists Activities (Special Courts) Act, 1975, and that provisions of section 10 of the 1984 Ordinance are also similar to the provisions contained in section 7 of the 1975 Act.
(ii) In the third case 1989 P.Cr.L.J. 626, it was held by another Division Bench of this Court, comprising of Haider Ali Pirzada and Abdul Rahim Kazi, JJ., while hearing appeal under section 7 of the Suppression of Terrorists Activities (Special Courts) Act, 1975 that this Court has got power to grant relief, which is ancillary or incidental to the appeal. It was, however, observed that such power may not be construed to mean that the bail or suspension of the sentence is to be granted as a matter of course but a very special exceptional case has to be made out therefor.
5. On the other hand, Mr. Naimatullah Qureshi, learned counsel for the applicant places his reliance on 1989 P.Cr.L.J. 626 and the case of Shahzad Hussain and another v. The State PLD 1980 Lah.
54.
(i) The first case 1989 P.Cr.L.J. 626 as relied on by Mr. Naimatullah Qureshi is the same which has also been relied on by Mr. Syed Sarfraz Ahmed However, the contention of Mr. Naimatullah Qureshi, is that although there is a specific provision debarring the High Court to exercise power under section 426, nevertheless the same has been exercised by the High Court, while hearing the appeal under section 7. This argument is not available in the present case, firstly, because the appeal is provided in the Special Act, and, secondly, we are considering question of maintainability of the revision. In any case, the observation of the Division Bench is to be read in the background of the entire case and not in isolation.
(ii) In the second case PLD 1980 Lah. 54 as relied on by Mr. Qureshi, a learned Single Judge of the Lahore High Court has come to the conclusion that a revision application was maintainable under the provisions of section 439 Cr.P.C. Against an order granting bail by the Special Courts constituted under the Suppression of Teriorist Activities Act, 1975, which was cancelled by the learned Single Judge of the Lahore High Court. For this view assistance was sought by the learned Judge from the inherent power of the High Court vested in it under section 561-A Cr.P.C. The learned Single Judge also invoked Article 203 of the Constitution relating to the supervisory jurisdiction of a High Court in a bail matter.
' We are unable to subscribe to the exposition of law as made by the learned Judge. In so far as the exercise of power under section 439 Cr.P.C. Or under section 561-A Cr.P.C. Or under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973, is concerned, we are of the considered view that a High Court can exercise such jurisdiction only if the impugned order is passed by a Court, subordinate to a High Court, which is not the case here. Perhaps this aspect was not brought to the notice of the Honourable Judge. It has been specifically held by a Division Bench of this Court in the case of HabiIpetank Ltd. v. The State and 6 others PLD 1988 Kar. 49 (supra), that a Special Court constituted under the Suppression of Terrorist Activities Act, 1975, is not inferior or subordinate to the High Court. However, it is to be noticed that the said power was exercised by the Honourable Judge of the Lahore High Court in a matter of bail, which is provided in section 5(6) of the Suppression of Terrorist Activities Act, 1975, which is to be read in conjunction with section 497, Cr.P.C. (Please see Karachi decision 1987 P.Cr.L.J. 737 (supra).
' In the light of what has been stated above, we find force in the preliminary objection faised by the learned A.A.-G. That this revision is not maintainable..
' Even otherwise on merits, we find no justification to interfere with the order passed by the learned Special Court of the Suppression of Terrorist Activities Act, 1975, in exercise of the powers vested in it by section 5, relating to the procedure, inasmuch as the applicant wants to recall S.I.P. Mohammad Khan, the Investigating Officer, for the purpose of "comparison of his handwriting with that of mashirnama and the statements recorded by him" because the applicant has now learnt 'through most reliable sources' that he is not the scribe of the mashirnama and 161, Cr.P.C. Statements of witnesses (contrary to his claim in his evidence) but it is noticed that no question in this regard was put to the witness in his cross-examination. As such, the prayer for recalling the said witness is uncalled for. However, the applicant is free to prove his claim through defence evidence.
' For the above discussion the revision is dismissed and so also the Miscellaneous Application for stay of proceedings.