SAEEDUZ ZAMAN SIDDIQUI CJ:- This order will govern the disposal of Cr.Bail Application No.1180/90 and Cr.Bail Application No.1169/90. The accused in the above noted Cr.Bail Applications are facing trial under sections 365- A/395/120-B PPC before the Special Court (Suppression of Terrorist Activities) at Karachi, (hereinafter referred to as the Special Court). Bail Application No.1180/90 is filed by Asif Ali Zardari son of Hakim Ali Zardari while Cr.Bail Application No.1169/90 is jointly filed by Ghulam Hussain Khan s/o Ghulam Umer Unar, Noor Nabi Abbasi s/o Dur Mohammad and Najmul Hassan alias Babar Jam ali s/o G.H. Jamali. The bail applications of all the above noted applicants except that of Ghulam Hussain Khan were rejected by the Special Court and accordingly they have applied for bail before this Court. Insofar Ghulam Hussain Khan s/o Ghulam Umer Unar, applicant No.1 in Cr.Bail Application No.1169/90, is concerned he has been granted conditional bail on medical ground by the Special Court and Mr.Ibrahim Memon, the learned counsel for Ghulam Hussain Khan stated before us that he does not press bail for Ghulam Hussain Khan on merits but only prays for modification of the conditions attached by the trial Court while granting bail to Ghulam Hussain Khan on medical ground. We have accordingly separated the case of Ghulam Hussain Khan from rest of the applicants, and it will be dealt with separately.
2. Mr.Nizam Ahmed, the learned DAG and MrAftab Akhund the learned Advocate General, Sindh, jointly raised a preliminary objection as to the maintainability of above bail applications. It is jointly contended by them that the bail applications of the applicants having been rejected by the.
Special Court this Court has no jurisdiction either to revise that order or to entertain fresh bail application in view of the provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975, (hereinafter referred to as "the Act" for the sake of convenience). It is jointly urged,'that the Act provides a complete procedure for the trial and regulation of proceedings before the Special Court and as such the general provisions contained in the Code of Criminal Procedure are not applicable to the proceedings arising under the above Act. It is very vehemently contended by the learned DAG and AG Sindh that the jurisdiction of the High Court to grant bail under section 498 Cr.P.C, having been expressly taken away by the Act the High Court cannot grant bail to a person standing trial for a scheduled offence, under the Act. It is jointly contended that under Article 175 of the Constitution, the court can exercise only such jurisdiction as may be conferred on it either by the Constitution or by or under any law. Referring to the provisions of the Act the learned DAG and AG Sindh contended that the Act provides a complete and exhaustive procedure regulating the trial before the Special Court and as such the general provisions contained in the Code of Criminal Procedure cannot be invoked. It is, accordingly, contended that there being no provision in the Act which provided entertainment of the bail application of an accused person by the High Court after it is rejected by the trial Court and the general power of the High Court in this regard contained in section 498 Cr.P.C, having been expressly taken away by the Act, the High Court could not grant bail to the applicants. In support of their above contention the learned DAG and the AG Sindh relied 6a the two full bench cases of Karachi and Peshawar High Courts respectively, reported as Abdul Khaliq Vs. State (PLD 1990 Karachi 448) and Mohammad Gul Vs. The State (1985 P.Cr.LJ.205).
3. MrAitzaz Ahsan, the learned counsel for Asif Ali Zardari (applicant in Cr.Bail Application No.1180/90) on the other hand contended that this Court as well Lahore High Court have consistently held the view that the High Court has jurisdiction to grant bail to an accused person facing trial under the Act before the Special Court and in support of his contention the learned counsel referred to the cases of Mohammad Moosa Vs. The State (1986 P.Cr.L J, 578); Abdul Majid Vs. The Judge. Special Court (Offences in Bankl (1985 P.Cr.LJ.890); Altaf Hussain Vs. The State (PLD 1985 Lah. 10); Mst Zeenat Ali Vs. The State (1985 P.Cr.L.J. 2592); Aftab Ahmed Shah Vs. The State (1989 P.Cr.LJ. 112); Deputy Superintendent of Police. Larkana Vs. Mumtaz Ali Bhutto (1986 P.Cr.L.J. 195) and Gul Mohammad Vs. The State (1987 P.Cr.LJ. 737).
4. On merits MrAitzaz Ahsan, the learned counsel for Asif Ali Zardari contended that insofar his client was concerned, firstly, his name is not mentioned in the FIR initially lodged by the complainant on 10-4-1990 and secondly, even if the improved version of the complainant as disclosed in his subsequent letter dated 17-9-1990 addressed to Superintendent (CIA) Govt, of Sindh, I.I.Chundrigar Road, Karachi, is accepted as correct, then also no offence is disclosed against his client. With regard to inclusion of section 120-B CPC in the challan Mr Aitzaz Ahsan contended that the ingredient of conspiracy are totally missing against his client.
5. Mr .Mohammad Ibrahim Memon, the learned counsel for Noor Nabi Abbasi and Najmul Hassan alias, Baber Jamali adopted the arguments of Mr Aitzaz Ahsan on the point of maintainability of the bail application. On merits Mr.Memon contended that insofar as his client Noor Nabi Abbasi is concerned the role assigned to him in the FIR is insignificant and as such he is entitled to bail.
Regarding case of prosecution against Najmul Hassan alias Baber Jamali, Mr. Ibrahim Memon, contended that the perusal of allegations 'made by the complainant in the FIR will show that the dispute relates to a civil transaction between complainant and Ghulam Hussain Unar who were not only known to each other from before the incident, but wre also related to each other, and as such on the basis of these allegations no criminal offence is made out against any of the accused person named in the FIR. It is also contended by Mr.Ibrahim Memon that the allegation regarding receipt of money by Ghulam Hussain Unar is not at all disputed and as such it lends support to his contention that it was a transaction of civil nature. Wc have heard the learned counsel for the parties at length.
6. We will first deal with the point of jurisdiction raised by the learned DAG and the learned AG Sindh. The constitution of a Special Court authorised to try the scheduled offences under the Act is provided by section 3 of the Act and its jurisdiction is determined under section 4 ibid, which provides that notwithstanding anything contained in the Code of Criminal Procedure a scheduled offence shall be triable exclusively by a Special Court. Section 4-A provides for transfer of cases from one Special Court to another Special Court by the Government and it further provides that upon transfer of the case the transferee Court shall not by reason of such transfer be bound to recall or rehear any witness, who had given any evidence in the case before transfer, and the evidence in the case already recorded before the Special Court where the case was pending before its transfer may be considered by the transferee Court. Under section 5 of the Act the officer inchargc of a Police Station is required to complete the investigation of a scheduled offence and forward a report under section 173 Cr.P.C, within 14 days to the Special Court having jurisdiction.
However, the Special Court may extend this period for good reasons shown by the Investigating Agency. Subsection (2) of section 5 provides that any default on the part of officer incharge of police station, or an investigating officer or any other person required by law to perform such function in connection with the investigation which results or has the effect of delaying the investigation or submission of report under subsection (1), shall be deemed to be wilful disobedience of the order of Special Court and may be dealt with under the law accordingly.
Subsection (3) of section 5 authorises a Special Court to directly take cognizance of a case triable by it without the case being sent to it under section 190 of the Code. Section 5-A of the Act prescribes the procedure for trial before the Special Court. It provides that on taking cognizance of the case the Special Court shall proceed with the trial from day to day and shall decide the case speedily. A Special Court trying a case under the Act is prohibited from adjourning the trial for any purpose unless such adjournment in the opinion of the Court is necessary in the interest of justice but such adjournment is not to exceed more than 2 days. Subsections (4) to (7) of section 5-A of the Act prescribe the procedure for trial of the accused in absentia. Subsection (8) of section 5-A of the Act with which we are mainly concerned here, provides, that an accused person shall not be released on bail by a Special Court or by any other court if there appears reasonable grounds for believing that he has been guilty of a scheduled offence, and unless the prosecution has been given notice to show cause why he should not be released. Subsection (9) of section 5-A provides that a Special Court shall in all matters with respect to which no procedure has been prescribed by the Act, follow the procedure prescribed by the Code for trial of cases by Magistrate. From the review of above provisions of the Act it, firstly, appears that the Special Courts have been established as an exclusive forum for trial of scheduled offences under the Act and as such the jurisdiction of all other courts shall be deemed to have been excluded in respect of all those matters to which the jurisdiction of Special Court extends; and secondly, the application of the general provisions contained in the Code of Criminal Procedure regulating the trial of an accused person before the Special Court has been excluded to the extent that the provisions in that regard have been made in the Act. One more object which clearly appears from the preamble and various provisions of the Act is, that the Special Courts have been established for the purposes of suppression of acts like sabotage, subversion and terrorism and making a special provision for speedy trial of such offences. These broad objectives of the Act have to be kept in view, both while interpreting the provisions of the Act as well as when holding that certain provisions of the Code, applications whereof have not been specifically excluded by the Act, applied to the proceedings before the Special Courts.
7. We will now attempt to find out as to what extent the power of High Court to grant bail under the Code has been taken away pr effected by the Act. The first provision to be noticed in this regard is section 7 of the Act which provides for an appeal from the sentence awarded by the Special Court to the High Court within whose jurisdiction the sentence has been passed. This section though provides for an appeal to High Court from the sentence awarded by the Special Court but prohibits exercise of power by the High Court under section 426 Cr.P.C, which is a general power enjoyed by the appellate court under the Code to suspend the sentence appealed against before it. Similarly, the power of revision against the sentence awarded by the Special Court or to transfer a case from the Special Court which otherwise are the powers generally enjoyed by the High Court under the Code have been taken away in respect of Special Court. Likewise the powers available to High Court under section 491 Cr.P.C, in its original criminal jurisdiction has also been taken away under the Act in respect of any proceedings of a Special Court. In the like manner the powers of the High Court under section 498 Cr.P.C, to grant bail has also been taken away by the Act. MrAitzaz Ahsan, the learned counsel for Asif Ali Zardari contended before us that the legislature by mentioning sections 426,491 and 498 Cr.P.C, in section 7 of the Act intended to take away the powers of the High Court under these sections only in respect of appellate proceedings and, therefore, the powers of High Court under these sections in respect of proceedings other than appellate proceedings were not effected.
We are unable to agree with the above contention of MrAitzaz Ahsan. Section 7 of the Act reads as follows: "7. Appeals from sentences imposed by Special Court, etc.- (1) A person sentenced by Special Court shall have a right of appeal to the High Court withiN whose jurisdiction the sentence has been passed, but save as {foresaid 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 and shall be heard and decided by a Bench of not less than two Judges of the High Court (within three months).
(3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court."
(underlining is by us)
8. No doubt the head note of section 7 ibid reads as "Appeal from sentences imposed by Special Court" but a careful reading of the section will show that the section besides mentioning the appeal proceedings also refers to the powers of Court to revise sentence, transfer of cases pending before Special Court and the supervisory/revisional general jurisdiction of all kinds in respect of any proceedings of a Special Court. In our view, therefore, the mention of section 491 and 498 Cr.P.C, in section 7 of the Act is deliberate and it cannot be construed as having reference to the appeal proceedings only. Even otherwise provision of sections 491 and 498 Cr.P.C, cannot have any reference to the appeal proceedings as after conviction of an accused person his production cannot be ordered by High Court under section 491 Cr.P.C, to examine his detention in jail under any of sub clauses mentioned therein. Similarly, a person convicted of an offence cannot be enlarged on bail by the High Court under section 498 Cr.P.C. We are therefore, of the view that by mentioning sections 491 and 498 Cr.P.C, in section 7 of the Act, the legislature intended to take away all powers of a High Court under these provisions of Cr.P.C, in respect of proceedings of a Special Court. Our above conclusions find full support from the following observations of the Full Bench in the case of Abdul Khalid Vs. The State (PLD 1990 Kar. 448):-"Coming back to section 7 of the Terrorist Act, I would like to say that, if pontention raised at the bar is accepted that section 7 is divided into two parts by words "but save as aforesaid", then also it appears ' very clearly that the intention expressed is that in the first part power is given to the High Court to hear appeal and in the second part "no Court" shall include High Court, which is restrained from revising any such sentence, transferring any case from Special Court and making any order under section 426, 491 and 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. If contention is accepted that section 7 is not to be divided into two parts but can be read as a whole, then also it appears that intention of legislature is explicitly clear that power is given to High Court to hear appeal without power of granting bail under section 426, Cr.P.C, during pendency of appeal plus other restrictions specified therein. Legislature has made its intent very clear by describing the restrictions either by acts or by reference to sections of the Code. In both the methods intent is clear as to what is to be excluded, In the Act are mentioned "to revise such sentence" which is revisional jurisdiction and transfer of cases from Special Court. Apart from that, three sections are categorically mentioned as sections 426. 491 and 498 of Cr.P.C., which are powers respectively of grant of bail during pendency of appeal, directions bv wav of habeas corpus and power of grant of bail at any stage whether there be an appeal on conviction or not including power of pre-arrest bail. There is no jurisdiction for contending that words "no Court" in second part do not include High Court hearing appeal in the first part because, this fact is to be admitted that legislature has given expressly only power of hearing appeal to the High Court without power of granting bail during pendency of appeal because the intention and the purpose is that appeal is to be disposed of within three months' time speedily. Likewise, revisional jurisdiction has also been taken away because "no Court" including High Court is restrained from revising such sentence. Restrictions are in the shape of revision, transfer or passing any orders under sections 426, 491 and 498 of the Code. If legislature has not said in a very specific terms that revisional jurisdiction is barred or jurisdiction of the High Court under sections 435 and 439 of the Code is excluded as has been done in respect of sections 426, 491 and 498 of the Code, then it (can be said that revisional jurisdiction is barred impliedly because revising of sentence is mentioned as such which can be done in no other manner except in revisional jurisdiction."
(underlining is by us)
9. The next question which arises for determination in these cases is whether the High Court inspite of taking away of its powers, under section 498 Cr.P.C, is still competent to grant bail to an accused person in a case pending before a Special Court. Mr.Nizam Ahmed, the learned DAG contended that inKey Law Rerports#tbsCr.C. 392#tbe#tbsrvoijc#tbe6view of the taking away of the powers of this Court under Section 498 Cr.P.C, to grant bail and the absence of any provision in the Act authorising the High Court to admit a person to bail, who is facing trial before a Special Court, this Court can neither entertain the bail application nor admit such person to bail. The learned DAG in support of his contention relied on the above quoted passage and specifically the underlined portion of the passage from Abdul Khaliq's case. The learned DAG also referred to the case of Mohammad Ibrahim Vs. The State (PLD 1990 Karachi 290), in which a division bench of this Court took the view that the Special Court not being subordinate to High Court the later cannot exercise its jurisdiction under sections 439 or 561-A Cr.P.C, or Article 203 of the Constitution in respect of orders passed by the Special Court..
10. The learned A.G. Sindh while supporting the above contention of learned DAG further submitted that the grant of bail by any other Court including. The High Court under section 5-A(8) of the Act is possible only at a stage when the Special Court has not yet taken the cognizance of the case, whereafter it is the Special Court alone which could grant bail to the accused. The learned A.G.
Sindh, relied on the following passage from the Full Bench' decision of Peshawar High Court in the case of Muhammad Gul Vs. The State (1985 P.Cr.L.J. 205) in support of his contention:- "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 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 a stage for which besides a Special Judge some other Courts have also be authorised 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."
11. Mr.Aitzaz Ahsan, the learned counsel for Asif Ali Zardari on the other hand contended that inspite of taking away of the power of High Court under section 498 Cr.P.C, the High Court can admit a person accused of a scheduled offence and facing trial before a Special Court under section 497 Cr.P.C. The contention of Mr Aitzaz Ahsan appears to be correct. The Scope of power of High Court to grant bail to an accused person under section 497 and 498 Cr.P.C, came up for consideration in the case of Mohammad AyubVs.Mohammad Yaqub (PLD 1066 SC 1013) and following observations from the judgment of S.A. Rehman J. (as he then was) which expressed the majority view of the Court in the case, may be quoted here with respect:- "A consideration of the context in which it occurs would show that section 498 should apply only to accused persons and not to those convicted of an offence. As was pointed out by the Privy Council, section 426 of the Code grants power of bail to the appellate Court, in respect of convicted persons. Subsection (2) of that section expressly enacts that such a power may be exercised by the High Court, in the case of an appeal by a convicted person to a Court subordinate thereto. That section confers no such powers on a Court of Session. The very fact that express conferment of this power in the case of the High Court is mentioned, excludes the existence of a similar power in the case of a Sessions Court. If section 498 is so construed as to include within its scope convicted persons then its provision would come into conflict with section 496, so far as the Court of Session is concerned. Indeed, on such a view, the Court of Session would, under section 498, have power to grant bail to a convicted person, appealing to the High Court. Such a construction, if possible should be avoided. I am, therefore, inclined to the opinion that section 498, should be interpreted with reference to the context in which it occurs and should be held confined to the case of an accused person only. It is to be noticed that this section starts by saying that the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. The "bond" mentioned herein is obviously one to be executed by an accused person. The context, therefore, shows that the power of bail too under this section should be held limited to the case of accused persons. The cases of convicts' are sufficiently provided for by sections 426 and 435 of the Code, ana there was no necessity for repeating provisions regarding bail to thEm in section 498 of the Code.
This is one limitation which the Privy Council thought should be spelt out from section 498. When seen in the light of the other provisions in the Code. The second, and the more important, limitation seems to be that which confines the scope of section 498 in non-bailable cases to the category of persons, visualized by section 497, and I proceed to examine that point.
This question, it is true, was not before their Lordships of the Pivy Council, directly. It is maintained, on behalf of the respondent, that the word "appears" occurring in sections 496 and 497 of the Code, should apply only to a person, appearing in response to a process, issued by a Court and should not be held to include voluntary appearance by a person, seeking bail. In Satliq All's case, keeping the dictum of the Privy Council in view, I had expressed the opinion that the word "appears" need not be so confined. It is, however, pointedout by learned counsel for the respondent that with the adoption of this connotation of the word "appears",in the general dictionary sense, the result would be that section 498 itself would seem to become redundant. No statutory definition of the word "appears" is given in the Code and the question what precise meaning should attach to it is an open one. The word "Court" in sections 496 and 497, obviously includes the Court of Sessions and the High Court. If by voluntary appearance, when the person concerned is under immediate apprehension of arrest, either under a warrant issued by a subordinate Court or without warrant, by the police, grant of bail becomes possible by order of the Court, without the Court being directly seized of the case, under section 497, there would appear to be no need to have recourse to section 498, Pakistan Penal Code, at all. The argument has some force. On further reflection, therefore, I have come to the conclusion that the view in Sadiq All's case may require a little modification in so far as the word "apears" in sections 496 and 497, need not be construed to include voluntary appearance, even in circumstances of grave apprehension of arrest. This word may be taken to have been used in sections 496 and 497, in the same sense as in section 242 or 252 of the Code, which obviously contemplate appearance in answer to a process issued by a Court. This interpretation will have the merit of saving section 498 in its own right. The position that emerges then, would be that under sections 4% and 497, Criminal Procedure Code, the court can bail out a person only, if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the police, or by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requestedd.
Section 498, however, would be called in aid, before the Court of Session artd the High Court, even where the Court is not seized directly of the proceedings is question and where no actual arrest has been made so far but anticipatory bail is asked for, e.g., where the case is still at a stage of investigation by the police or is pending in a subordinate Court. The power to grant such anticipatory bail would thus be confined to the High Court and the Court of Session and other Courts would be excluded from its scope. This interpretation would seem to be consistent with the use of general expressions like "in any case" and "any person" in section 498. The High Court or Court of Session would also of course haye concurrent as well as revisional powers, in respect of orders by the police or the subordinate magistracy, in the matter, of bail, under section 498, read with sections 4% and 497 as was held by the Federal Court in Klmshi Muhammad's case and by this Court in Sadiq All's case.
It was next contended, on behalf of the respondent, that the generality of the words "in any case" or "any person", occurring in section 498, Criminal Procedure Code, should be given full effect, and the limitation on bails, in respect of non-bailable offences, imposed by section 497, Criminal Procedure Code, should not be held to govern section 498, Criminal Procedure Code.
After giving serious consideration to this question, I have reached the conclusion that the contention cannot be acceded to, for it might lead to anomalous results.
Section 28 of the Code declares that "subject to other provisions of this Code, any offences under the Pakistan Penal Code may be tried by the High Court, or by the Court of Session, or by any other Court by which such offence is shown in the eighth column of the Second Schedule, to be triable".
Section 194 further provides that the High Court may take cognizance of any offence upon a commitment made to it, in manner hereinafter provided. The Advocate-General may, also, with the previous sanction of the Provincial Government, exhibit to the High Court informations, for all purposes for which Her Majesty's Attorney-General may exhibit informations, on behalf of the Crown, in the High Court of Justice in England. Section 526 of the Code too enables the High Court to transfer, in appropriate circumstances, a case pending in a subordinate Court, for trial to itself. If then the High Curt tries a murder case on the original side, the limitations on the grant of bail specified in section 497, Criminal Procedure Code, would be fully applicable to the High Court. They would also apply if action is taken under section 497, in respect of an - accused person who is actually under arrest by order of a subordinate authority. If, however the wider interpretation, suggested for the provisions of section 498 of the Code, is adopted, then it would follow' that the High Court's power gets enlarged in- respect of bail, in nonbadable cases, when a case is pending in a subordinate Court or is under investigation by the police under that section, but it gets curtailed as soon as the case comes up for trial before itself, so that section 497 gets attracted to the case. The better view' seems to me to be, that the policy of the law, in respect of bail to persons, accused of non-bailable offences, is laid dovqr in section 497 and the same policy should be kept in view, while considering the question of bail under section 498, Criminal Procedure Code. After all, judicial discretion has to.Be exercised, while granting bail and the power conferred by section 498 of the Code cannot be construed to be purely arbitrary. In this respect, here fore, section 498 of the Code seems to me to be "ancillary or subsidiary" to sections 498 and 497 of the Code, in the words of the Privy Council.
In other respects, however, section 498 occupies the position of a supplementary provision in so far as it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and the police and enables these Courts to exercise the power of anticipatory bail,in suitable cases.
The jurisdiction of High Court to admit an accused person facing trial before the Special Court - to bail, came up for consideration before this Court in the following cases: Aftab Ahmed Shah Vs. The State (1989 P.Cr.L.J.112); Gul Mohammad Vs. The State (1987 P.Cr.L.J. 737); Deputy Supdt. Of Police Larkana vs. Mumtaz Ali Bhutto (1986 P.Cr.L.J. 195).
Aftab Ahmed shah's case was decided by a Division Bench of this Court consisting of Ajmal Mian (as he then was) and Allah Dino G.Memon JJ. The learned Judges while considering the effect of unamended section 5(6) of the Act which was identical to section 5-A (8) of the Act observed as follows:- "A perusal of the above quoted subsection (6) of section 5 indicates that prohibition to grant bail is not absolute but conditional and dependent on the question, whether there appear reasonable grounds for believing that an applicant has been guilty of a scheduled offence. In other words, if the spcical Court or the High Court takes the tentative view that there do not appear reasonable grounds for believing that an applicant has been guilty of a scheduled offences, bail can be granted. The above position was candidly conceded by Messrs A.A.Mohammadally and Syed Safdar Ahmed, learned Additional Advocate-General and Asstt: Advocate-Generalrespectively; whereas the learned counsel for the applicants have submitted that this Court can press into service the provisions of sections 497 and 498 Cr.P.C, in spite of the above subsection (6) of section
5. They have referred to the following cases:
(i) Mirza Jawad Beg v. The State PLD 1975 Kar. 628, in which a Division Bench of the earslwhile High Court of Sind and Balochistan held that in a case of Suppression of Terrorist Activities (Special Courts) Act, 1975. a Division Bench of the High Court as an Appellate Court has the powers in a lit case to grant interlocutory relief to release the accused on bail.
(ii) Ch.Zahur Ilahi, MNA v. The State PLD 1977 SC 373, in which the. Majority view was that even in a case triable by the Special Court for offences under the Defence of Pakislaa Rules and Sections 124-A and 153-A PPC, the High Court can invoke the provisions of section 497 and 498, Cr.P.C, and can grant bail as the above provisions are supplementary.
(iii) Abdul Majid v. The Judge, Special Court (Offences in Banks), Lahore and another 1985 P.Cr.L.J.
890, wherein a Division Bench of theLahore High Court while construing section 5(6) of the Offences in respect of Banks (Special Courts) Ordinance, 1984, held that the provision of section 497, Cr.P.C, was applicable to the case pending before the Special Courts and the bail can be granted to a person accused of offences mentioned in schedule under the Ordinance.
(iv) Muhammad Yaqub AH v. The Stale PLD 1985 Lah.48. In the above case a Division Bench of Lahore High Court, comprising of Ghulam Mujaddid Mirza (as he then was) and Qurban Sadiq Ikram, JJ, reiterated the above Lahore view, namely, that section 497, Cr.P.C, can be invoked even in respect of scheduled offences triable under the aforesaid offences in respect of Banks (Special Courts) Ordinance, 1984.
(v) Muhammad Majosa v. The Stale 1986 P.Cr.L.J. 578. In the above case a Division Bench of this Court comprising of Abdul Qadcer Chaudhry (as he then was) and Mamoon Kazi, JJ. Held in relations to the Scheduled Offences under the aforesaid offences, in respect of Bank (Special Courts) Ordinance, 1984 that section 498, Cr.P.C, can be pressed into service by the high Court during the pendency of a case before the Special Court.
(vi) Gul Mohammad and 2 others v. The State 1987 P.Cr.L.J. 373.
In the above case a Division Bench of this Court comprising of Nasir Aslam Zahid and Ally Madad Shah, JJ. While dealing with a case triable under the Suppression of Terrorist Activities (Special Courts) Act, 1975 held that the benefit of provisions III and IV of Section 497 Cr.P.C, was available to the accused.
12. There seems to be preponderance of view that even in the cases triable by Special Courts under special laws in the absence of any express prohibition is the relevant statute, sections 497 and 498 Cr.P.C, can be invoked inter alia by the High Court while considering a bail application. There is no express prohibition provided in the Act of 1975 as to the application of sections 497 and 98 Cr.P.C.
Mr.A.A. Mohanjtnadally has referred to subsections (1) to (5) of section 5 of the Act of 1975 and also section 10 of the Act of 1975 to contend that the provisions of Cr.P.C, are not, applicable. It will suffice to observe that he has overlooked subsection (7) of section 5 which provides that "A Special Court shall, in all matters with respect to which no procedure has been prescribed by this Act, follow the procedure prescribed by the code for the trial of summons cases by Magistrates". In case of any inconsistency between a provision of the Act of 1975 as to the procedure and a provision of the Cr.P.C, the former shall prevail but in the absence of a provision in Act of 1975 the provisions of Cr.P.C, will be applicable even in a trial before the Special Court, Section 10 which overrides the other law does not change the above legal position."
Although in the above case the learned Judges took the view that bail can be granted by the High Court under sections 497 and 498 Cr.P.C, while we have taken the view that section 498 Cr.P.C, cannot be invoked in view of section 7 of the Act but still the position docs not change as High Court can grant bil under section 497 Cr.P.C.
In Gul Mohammad's case, another Division Bench of this Court consisting of Nasir Aslam Zahid and Ally Madad Shah JJ. Expressed on the effect of section 5(6) and 7 of the Act qua section 497 Cr.P.C, as follows:- "(c) We may now deal with the objection raised by the learned additional Advocate-General that in any case bail can only be granted on merits to accused in cases being tried by Special Courts that is if there does not appear to be any reasonable ground for believing that the accused has been guilty of a Scheduled offence and not on the ground of delay. We are unable to accept this argument. It has already been held by this Court and in several judgments by the Lahore High Court referred to earlier that the powers of the High Court under section 497, Cr.P.C, remain unaffected by the provisions of the Offences in reaspect of Banks (Special Courts) Ordinance, 1984, and as the relevant provisions of the Ordinance, 1984 are identical to corresponding provisions in the Suppression of Terrorists Activities (Special Courts) Act, 1975, following the view taken by the Lahore High Court and by this Court, we may observe that the powers of the High Court under section 497 Cr.P.C, to grant bail to an under-trial prisoner facing trial before a Special Court constituted under the Act of 1975, remain unaffected and for any of the grounds available under section 497, Cr.P.C., the High Court can grant bail to such an undertrial prisoner. In such cases, therefore, the High Court can grant bail to an under-trial prisoner if his case attracts the third proviso to 11 section 497(1), Cr.P.C."
To the similar effect are the following observations of S.A. Rehman J. In the case of Deputy Superintendent of Police. Larkana Vs.Mumtaz Ali Bhutto (1988 P.Cr.L.J.195): "Pakistan is an Islamic democratic State. Here it is inhuman and anomalous to contend that a person who is sick and infirm to such an extent that his further detention in jail is detrimental to his life, should not be released on bail in a case punishable with imprisonment for 10 years and fine or with imprisonment for life or three years and fine or imprisonment for seven years although such a person can be lawfully granted bail in an offence punishable with death, as the proviso to 'section 497(1), Cr.P.C, provides. Such an intention can never imputed to the legislature when it enacted section 5(6) of the Suppression of Terrorists Activities (Special Courts) Act, 1975.
In view of the above discussion I am of the clear view that I section 5(6) of Suppression of Terrorists Activities (Special Courts) IAct 1975 docs not place an absolute bar against allowing bail to persons charged with the scheduled offences thereunder. By now it is a settled law that the grant of bail is rule and the bail is not withheld by way of punishment. It is pointed out that section 5(6) of the Suppression of Terrorists Activities (Special Courts) Act, 1975 is an enabling section and it provides for allowing bail to an accused person by a Special Court. Neither this subsection nor any other provision of the Suppression of Terrorists Activities (Special Courts) Act, 1975 indicates that the powers of a Court to grant bail to an accused person under section 497, Cr.P.C, have been taken away. Even in a case in which there are reasonable grounds to believe that the accused is guilty of a scheduled offence, a Special Court can allow bail to him on the ground of old age, sickness or infirmity."
Mr.AU/.Az Ashan, also referred to the cases of Abdul Majid Vs. The judge Special Court (Offences in Banks) (1985 P.Cr.L.J. 890), Mst.Zccnat Ali Vs. State (1985 P.Cr.L.J.2592) and Muhammad Moosa Vs. The State (1985 P.Cr.L.J. 578) and Altaf Hussain Vs. The State (PLD 1985 Lah, 10) in support of the contention that High Court can grant bail to an accused person under section 497 Cr.P.C, who is facing trial before the Special Court.
In the above noted three cases, the High Court of Lahore and Karachi respectively considered the effect of sections 5(6) and 7 of Offences in respect of Banks (Special Courts) Ordinance, 1984, which is identical to seciori 5-A (8) and 7 of the Act and came to the conclusion that the power of High Court under section 497 Cr.P.C, to grant bail to an accused person facing trial before the Special Court (Banking) under the Ordinance. Even the following observations in the case of Mohammad Gul Vs. The State (1985 P.Cr.L.J. 205) of the Full Bench of Peshawar High Court, which is relied by learned A.G. Sindh, supports the conclusion that High Court is empowered to grant bail to an accused person in pre-conviction stage in a case where he is accused of a scheduled offence:- "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 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 follows 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 prcconviclion 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 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.C, and this prima facie finding may be good enough to justify the grant of interim bail to the petitioners."
12. From the above review of case law it is quite clear that the Courts in Paksitan have consistently taken the view that the High Court's powers to grant bail under Section 497 Cr.P.C, before conviction of an accused person by the Special Court (Suppression of Terrorist Activities) or Special Court (Offences against the banks) has not been taken away either under the Act or under the offences in respect of Bank (Special Court) Ordinance, 1984. We are in respectful agreement with the above view and sec no reason to take any contrary view in the present cases. We accordingly hold that the High Court's power under section 497 Cr.P.C, to grant bail to a person accused of a scheduled offence and facing trial before a Special Court has not been taken away completely and can be exercised in appropriate cases in terms of section 497 Cr.P.C, subject the restrictions contained in section 5-A (8) of the Act. The bail applications are therefore maintainable.
13. Having dealt with the preliminary objection we will now consider the bail application of the accused persons on merits. We will first take up the case of accused Asif Ali Zardari. Learned counsel for the applicant contended before us that the name of the accused is not disclosed in the FIR which was lodged by the complainant on 15-4-1990 and as such the involvement of the applicant is mala fide and for extraneous reasons. Alternatively, it is contended by the learned counsel for the applicant that even if we accept as truth all that has been said by the complainant in his various applications, relied by the prosecution, then too, no offence is disclosed against Asif Ali Zardari. With regard to the two judicial confessions of co-accused Najmul Hassan alias Baber Jamali and Atif Manzoor the learned counsel contended that these confessions have no evidentiary value as firstly, they were retracted and secondly, they were recorded in such circumstances which clearly show that they were not made voluntarily. The learned Advocate dcneral, Sindh, on the other hand contended that the FIR dated 15-4-1990 was registered at a time when the wife of the applicant was Prime Minister of Pakistan and as such for obvious reasons the offending portion of FIR relating to applicant Asif Ali Zardari was deliberately omitted and distorted version of FIR was recorded. The learned A.G. Sindh went on to argue that after dismissal of Benazir Bhutto's Government when the complainant came to Pakistan and filed application dated 17-9- 1990 the matter was investigated afresh and during the course of investigation the police cdllcctcd material which clearly established involvement of Asif Ali Zardari in the case, In this connection the learned A.G. Sindh relied on the letter of the wife of the complainant addressed from London through Fax to the then Prime Minister of Pakistan (wife of applicant) on 22-11-1989, copy of the letter dated 6th December, 1989 sent to Ms.Nahced Khan, Private Secretary to Ms.Bcnazir Bhutto, copy of the complaint dated 20th December, 1989 addressed to Interpole Scotlandyard, London, by the complainant, copy of the letter of the same date addressed to Secretary of State, Foreign Office, United Kingdom, London, copy of the letter addressed to the President of Pakistan on 26th February, 1989 and the two judicial confessions of accused Najmul Hassan and Atif Manzoor. On the basis of these material the learned A.G. Sindh contended that at this stage when the court is only considering the bail application of accused, it will only keep in view the broad feature of the case and will avoid deeper appreciation of evidence and will tentatively try to find whether the material placed by the prosecution reasonably connected the accused with the crime alleged against him.
It is very vehemently urged by the learned A.G. Sindh that the prosecution in the challan has applied section 120-B of PPC and as such each one of the accused is liable for the act of others in the case. The learned A.G.Sindh further contended that the accused has failed to show that the complainant who is a foreign national and not known to the accused had any motive to implicate him in the case falsely. We have heard the learned counsel for the applicant and the learned Advocate General Sindh, at great length.
14. No evidence in the case has been recorded as yet. It is true that in the FIR which was initially registered in the case on 15.4.1990 the complainant did not mention the name of the accused Asif Ali Zardari but the circumstances under which the FIR was registered nd the effect of explanation offered by the prosecution for omission of the name of accused Asif Ali Zardari in the FIR can only be considered during the trial of the case. The incident allegedly took place on 30.9.1989 while the FIR was registered on 15.4.1990 after about 6 1/2 months of the incident. The learned A.G. Sindh has produced before us the copies of the letter dated 22-11-1989 addressed by the wife of the complainant to the then Prime Minister of Pakistan Ms.Bcnazir Bhutto which contains the earliest version of the incident, letter dated 6.12.1989 addressed to Naheed Khan, by the complainant, letters dated 20.12.1989, addressed to Inlcrpolc, Scotlandyard, London and Rt.Hon. Doughlas Hurd, Secretary of State, Foreign Office, London and letter dated 26.2.1990 addressed to President of Pakistan, Ghulam Ishaque Khan, which the prosecution claimed, it collected during the investigation of the case and will be produced at the trial. The version about the incident given in all these letters is consistent and they all do mention the name of the applicant Asif Ali Zardari. The details of the incident given in these letters are also substantially the same as disclosed by the complainant in his subsequent letter to the police dated 17.9.1990. We will however, refrain from making any further comment on these letters as it may not prejudice either the accused or the prosecution at the trial of the case and leave it open to the Special Court to appreciate the same.
We will nevertheless, observe that on the face of these documents, the explanation offered by the prosecution for omission of the name of Asif Ali Zardari from the FIR dated 15.4.1990 cannot at this stage of the case be considered fatal to the case of the prosecution. It will also be difficult to hold at this stage that allegations made in the complaint and other documents do not involve Asif Ali Zardari in the conspiracy to commit offence under section 365/A PPC as has been contended by his Advocate. The challan has been submitted in the Special Court for trial of the accused persons for offences under section 365-A and 395 Cr.P.C, and 120-B PPC. Since section 120-B PPC has been applied in the case it is difficult at this stage to sift the allegations and precisely determine the role of individual accused person. Necessary proof required to prove criminal conspiracy came under discussion in the case of Amiruddin Vs. The State (PLD 1967 Lah.1190) the learned single Judge of the Lahore High Court while examining the requirements of proof of- criminal conspiracy observed as follows:- "28. The learned Assistant Advocate-General, whom I heard on this aspect of the case submitted that it is very seldom that there is direct evidence abailable with regard to conspiracy. It is a matter of inference from the sequence of circumstances and if an inference from those circumstances can legitimately be drawn that privity between the persons concerned existed to commit an offence to achieve an object by unlawful means, the offence of conspiracy will be said to have been proved. In this connection he referred to the case of Rcg.V. Dufficld and others (1), where the nature of the offence of conspiracy was described in the following words: - "In these cases the essence of the offence is the combination to carry out an unlawful purpose and the unlawful combination and conspiracy is to be inferred from the conduct of the parties. If several persons take several steps, all tending towards one obvious purpose, it is for the jury to say whether those persons had not combined together to bring about that end which their conduct so obviously appears adapted to effectuate.
"4H- f*vpreitpv wn* w*t< Ml*w pr tpn General to the following cases:- Punjab Singh Ujagar Singh V.Emperor,
(2) Bcnoycndra Chandra Pandey V.Emperor
(3) Goloke Behan Takol and others Vs. Emperor (4) and Kcshabdco Bagat v. Emperor (5).
In the Lahore case, referred to above, it was held that though the essence of the offence of criminal conspiracy is agreement between two or more persons to commit an offence or do any of the acts mentioned in section 120-B in the matters described therein, the finding of criminality in such cases is a matter of inference deduced from the acts of persons concerned, done in pursuance of an apparent criminal purpose in common between them. In the three Calcutta cases, referred to above, it is also laid down that the guilt in a charge of conspiracy is to be inferred from facts and circumstances proved before the Court.
Mian Aslam Riaz Hussain, also referred to Dur Muhammad and another v. Emperor (6), wherein it was held that the prosecution cannot be called upon to prove as to when a conspiracy started and when it ended because this must be in the exclusive knowledge of the conspirators themselves.
The principle that emerges out of the above authorities is that an agreement as referred to in section 120-B, PPC is to be inferred from the facts and circumstances of each case. The offence of conspiracy by its very nature is secretive and surreptitious, and if a rule of evidence, as canvassed by the learned counsel'for the appellants, is laid down to the effect that an agreement as referred to in section 120-B PPC is to be positively proved, the proof of conspiracy would become impossible.
I, therefore, find that there is no force in the contention raised by the learned counsel for the appellants and hold that the appellants have been rightly convicted under section 120-B PPC notwithstanding the absence of positive proof of agreement."
The above cases have been referred by the Advocate General, Sindh, in support of his contention that even participation of a person in respect of a small role needed to complete the conspiracy will render him equally liable for the main offence.
We are, therefore, of the view that at this stage while we arc only tentatively examining the material produced by the prosecution for decision of this application it cannot be said that there is no material to reasonably cqnnect the accused with the offence alleged against him.
15. The learned counsel for the applicant very vehemently argued that the two confessional statements relied by the prosecution in the case have no value as firstly, there are confessions of two accused persons which cannot be used against co-accused. Besides, these confessions were made by the co-accused long after their arrest when they were in police custody and as such they havejio evidentiary value. The learned Advocate General Sindh, On the other hand contended that these confessional statements were made by the co-accused while they were in custody of the police in connection with another case under section 365-A PPC. It is not necessary to go into this controversy at this stage, as while considering the bail application the court will not either way appreciate the evidentiary value of a piece of evidence which can only be left to be considered at the trial. However, the learned counsel further contended that these confessions cannot be used against his client. In the case of Zulfikar Ali Bhutto Versus The State (PLD 1979 SC 53) the Court while considering the admissibility of the confession of an accused observed as follows:- "125. A perusal of the facts and observations appearing in these cases, however, does not fully support the learned Special Public Prosecutor, as there is in fact no departure from the basic definition as given by the Privy Council in the case of Pakala Narayan Swami already referred to namely, a confession must cither admit in terms the offence, or at any rale substantially all the facts which constitute the offence, or at any rate to adopt or follow any observations to the contrary appearing in these judgments, in view of the clear enunciation of the law by the Privy Council, which is fully in accord with the term of section 30 of the Evidence Act. The principle underlying the section is that the consequences of self-implication in an offence afford some sort of guarantee for the truth of the statement, and when the maker of such statement also implicates another prisoner, it is very difficult, if not practically impossible, to require the Court to exclude that statement altogether from its mind when it comes to consider the case against the other accused.
An admission bv an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. These considerations, however, do not apply when the question is whether statement partly inculpatory and partly exculpatory should be used against the maker thereof. In his case, even if the statement need not amount to a confession in the full sense of the term, it could still be used as an admission against him."
(The underlining is by us)
We arE Therefore, unable to agree with MrAitzaz Ahsan, that the two confessional statements relied by the prosecution be discarded against the co- accused Asif Ali Zardari at this stage. Mr.Aitzaz Ahsan also contended that in order to establish conspiracy against a person mere association of such person with others who were involved in the conspiracy is not enough and in support of his contention the learned counsel relied on the following observation in the head note of the case of Rakhal Chandra Vs.Empcror (AIR 1930 Cal. 647): "Merely that a person was an associate of the persons who were party to a criminal conspiracy is not of itself sufficient for the foundation of the conviction of that person; nor can the fact that the person was endeavouring to extricate himself from being accused of anything connected with the conspiracy help the case against such person."
I6. The above quoted pessage relied on by the learned counsel from the Head Note in our view is not relevant here as the case against the applicant has not yet proceeded and there is no question of considering his conviction in the case. At this stage we arc only considering bail application in which the material collected by the prosecution is to be examined tentatively for purposes of reaching a reasonable conclusion with regard to the implication of the accused in the offence alleged. Learned counsel for the applicant als6 relied on the case reported as Emperor Vs. Aftab (AIR 1940 Allahabad 291) that again is a case in which acquittal of the accused person was challenged in an acquittal appeal. In our view the ratio laid down in the above case has no application in the case before us. We arc, therefore, of the view that the trial court rightly declined to grant bail to the accused Asif Ali Zardari. We may however observe here that during the hearing of this application on our specific questioning the learned Advocate-General, Sindh made a firm statement before us that the prosecution intend to completethe trial of the accused within two months. We will therefore adopt this statement as part of this order and direct that the prosecution shall commence the proceedings against the applicant forthwith and shall complete the trial of the applicant within two months from the date of this order as undertaken by the learned Advocate-General, Sindh, before us. We may also clarify here that after recording of some evidence in case if the applicant is so advised he will be at liberty to file a fresh bail application.
17. We now come to the bail application of accused Noor Nabi Abbasi and Najmul Hassan alias Babar Jamali. Mr.M.I.Memon, learned counsel for the applicants contended that the allegations against Noor Nabi Abbasi are of a very trivial nature and as such he may be admitted to bail. The allegation against accused Noor Nabi Abbasi applicant in the case is that when Ali Bux Polari and Uncr had withdrawn money then they took him to Taj Mehal Hotel where Ghulam Hussain Uner, Baber Jamali, Noor Nabi Abbdasi and Ali Bux Polari kept him in wrongful confinement. Similarly, the allegation against the other accused Najmul Hassan alias Baber Jamali arc of his association with the other accused throughout. We have already pointed out that in a case of criminal conspiracy each accused is responsible for the acts of other accused no matter what part of the conspiracy is performed by him. In these circumstances, we do not find at this stage any ground for enlarging the two accused persons on bail. We accordingly reject the bail application of all the above named applicants subject to our observations with regard to the conclusion of the case within a period of two months from the date of this order.