1. IMAM ALI KAZI, J- The applicant, Manzoor Hussain Wassan, a member of the Provincial Assembly of Sindh belonging to the Pakistan Democratic Alliance has filed these two bail applications under Section 5-A (S) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 in two separate cases pending before the Court of Judge, Special Court, Suppression of Terrorist Activities, Sukkur Division, at Khairpur. As the consideration of these two bail applications arise out of common facts we propose to decide both the applications by this common judgment.
2. The applicant was arrested by the Police on 25.12.90 from his Otaq in the investigation of crime No.232 of 1990 registered at Police Station Kot Diji, District Khairpur for offences under Section 336/147/148/149 PPC and section 13-D Arms Ordinance on 31-10-1990 on the complaint of one Huzoor Bux. The incident in the to the facts stated in the FIR took place on 27.10.1990 at 2.00 P.M. Four days earlier near polling station, Morial Bhatti during the Poll of General Elections of 1990. The applicant armed with a Kalashnikov alongwilh other persons variously armed with fire arms appeared there and caught hold of the complainant, a polling agent of his opposing candidate Arbab Ali Phull and warned him that he will be sternly dealt with in case he lost the poll at that polling station. All of them fired in air threatening them and the voters present there and went away. Complainant then contacted his candidate who asked him to lodge the report.
3. That is the case of the prosecution that police received spy information on 25th December, 1990 that the applicant was available in his Otaq on that day. Police therefore, went there and arrested him. At the time of arrest he was found to be in possession of a Kalashnikov bearing No.56-1- 15063204 for which he did not have any license.
4. Police on return to Police Station Kotdiji registered another FIR being crime No.261/1990 under section 13-D Arms Ordinance, in respect of the Kalashnikov secured from the applicant.
5. After completing the investigation of both the crimes the police filed two challans one under section 307/336/147/148/149 PPC as the result of investigation of crime No.232/1990 and the second under section 13-D 5. Arms Ord in respect of crime No.261 in the Court of Judge, Special Court, Suppression of Terrorist Act invites, Sukkur Division at Khairpur. Both the cases has not proceeded as yet. Applicant after being unsuccessful in obtaining bail in both the cases from the trial Court has moved present two applications.
6. Following grounds were urged by Halakhoth Advocate for the applicant in support of first application relating to crime No.232/1990:-
(a) That applicant is an important member of the Provincial Assembly of Sindh belonging to the opposition and the Government of Sindh as a matter of policy to victimise the opposition had him arrested on 17.12.1990 from the flat at Karachi as he came to attend the session of the Sindh Assembly. As he was wrongfully arrested and illegally detained a petition challenging his such detention was filed before this Court. A statement was made in Court that applicant was not arrested or detained anywhere in the Province till 24.12.90 to frustrate his petition. In order to provide a cover to his illegal arrest and detention he has been shown to have been arrested on 25.12.90 in crime which already stood registered.
(b) That the applicant is said to have been arrested in the investigation of crime No.232/1990 which was reported after a delay of four years and did not even contain an allegation to attract the applicability of section 307 PPC and rightly such section was not mentioned by police in column three of the FIR. The offence as initially reported is not a scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, 1975.
(c) That this Court is competent to grant bail in suitable cases in view of the latest judgments of the Supreme Court of Pakistan published in 1991 SCM R 599, Allied Bank of Pakistan-vs-Khalid Faruq and Muhammad Aslam-vs-The State and judgment of this Court in Criminal Bail Application No.1 180 of 1990, Asif Zardari-vs-The State.
(d) That this Court can sift evidence and even tentatively assess it for the purpose of deciding a bail application. Reliance was placed by him on cases reported in PLD 1972 S.C.81 and PLD 1978 S.C.
7. 256.
8. As regards the second bail application in respect of crime No.261 of 1990 of Police Station Kotdiji he contended that the Kalashnikov allegedly secured from the possession of the applicant belongs to his nephew Atta Hussain who was holding a valid licence for the same. This weapon was deposited on 9-10-1990 by him at the police station as the Caretaker Government of Pakistan had by a general order cancelled all such licences. He produced original licence and its photostat copy showing that a Kalashnikov bearing the same number as mentioned in the FIR was borne on that license. A photostat copy of a receipt of the said weapon issued by the police is also filed alongwith the bail application. To his according to him is a case of foisting of a weapon.
9. Mr.K.M. Nadeem, the Assistant Advocate General, Sindh strongly opposed the grant of bail to the applicant in both the cases as at this stage reasonable grounds appear that applicant has been guilty of scheduled offence on the basis of the contents of FIR, challan and statement of witnesses recorded under section 161 Cr.P.C. The further statement of witnesses recorded by the Investigating Officer clearly show that an attempt to commit murder was made by the applicant and therefore, section 307 PPC was added in the challan. He also disowned the receipt of the weapon said to have been issued by the police.
10. No doubt power to suspend the execution of sentence after conviction during the pendency of an appeal, power to deal with illegal detention and power to grant pre-arrest bail to an accused person available to courts under section 426, 491 and 498 Cr.P.C, have by express provision made in section 7 of the Suppression of Terrosist Activities (Special Courts) Ordinance, 1975 taken-away from the Courts. The Legislature had omitted to mention Section 497 Cr.P.C, in that section and thereby clearly intended to keep such jurisdiction to grant bail to an under trial prisoner instant. But by making a special provision of law in section 5-A (S) of the said Ordinance relating to grant of bail in case of scheduled offences power available to Courts under section 497 (1) Cr.P.C, in case of non-bailable offences generally has been retained. This sub-section is couched in a language which is similar to the language used in section 497(1) Cr. P.C. Except that former restricts the power of granting bail in case of scheduled offences while the latter deals with restriction in relation to offences punishable with death, life imprisonment or sentence of ten years. The normal Courts under other sub-sections of section 497 are empowered to grant bail under certain situations in exercise of their judicial discretion. Such powers have also been taken away in cases under scheduled offences. In view of above it will be seen that a person accused of a scheduled offence may not be released on bail if reasonable grounds appear for believing that he has been guilty of such offence. But in a case where prosecution is unable to show from material available on the record before the court or record available with prosecution that such grounds do exist to point out guilt of an accused person or in cases where an accused person is able to point out from such material that such grounds do not exist courts will not be debarred from recording such a tentative assessm ent and grant him bail under section 5A (8) of the said Ordinance. This view gets support from the two cases mentioned above.
11. In the present case although the FIR was recorded after a delay of four days affording sufficient time to the complainant for consultations to magnify the accusations to implicate his political rival allegations attracting applicability of section 307 PPC were not made in it. The prosecution later on improved the case by introducing second version accusing the applicant to be liable for punishment under section 307 PPC, a scheduled offence. Thus there exists in the case two versions advanced by the prosecution itself. One version initially setout in the FIR itself would render the applicant liable for offence under section 336 PPC, a non- scheduled and bailable offence while other under section 307 PPC, a scheduled offence as developed dueins the investigation of the case. In a criminal trial when two versions arc advanced by prosecution itself the golden rule has always been that the version favourable to the accused will be preferred. Such assessment of available material can always be recorded tentatively even while deciding bail application. In view of above we are inclined to grant bail to the applicant in case where he is being tried for offences under Crime No.232/1990 registered at Police Station, Kotdiji.
12. Ln the second case prima facie the applicant has been able to show that Kalashnikov said to have been secured from him was a weapon entered in the license issued to his nephew. The license was cancelled by a general order of the Federal Government and in case it was not deposited with the police as claimed by the Assistant Advocate General it will be the nephew of applicant who will be liable lor offence under section 10 of the Arms Ordinance. On examination of the documents, license and receipt, produced by the applicant as a matter of tentative assessment it can be said that reasonable ground do not exist to hold that he has been guilty of the scheduled offence he is charged with. We arc therefore, also inclined to grant him bail in his trial for crime No.261/1990 registered at Police Station Kotdiji.
13. In view of above the applicant shall be released on bail on his furnishing a solvent surety in the sum of Rs.2,00,000/- (Rs. Two Lacs) and P.R. Bond in the like amount in each case to the satisfaction of trial Court.