' This is an application moved by Muhammad Ali Khan, petitioner, for grant of bail pending trial in a case registered against him under section 5 of the Explosive Substances Act (VI of 1908), vide F.T.R.
No.501 at Police Station, Miryan, District Bannu, on 20-12-1987 at 17-30 hours.
2. Briefly stated the facts are that on 20-12-1987 at 16-20 hours, during the routine checking of the vehicular traffic, Karim Khan, A.S.I., attached to Joint Narcotics Task Force, Bannu, alongwith his other staff signalled Bus No. P.R.C.-7637 to stop at Bannu Miranshah Road near Airport and made a person to alight from the bus. The search of his person led to recovery of a hand-grenade of Russian origin duly tied with his trouser's string. In consequence, a case under section 13 of the Arms Ordinance and section 5 of the Explosive Substances Act, 1908 was registered against the petitioner and he was arrested.
3. In the first round, the accused petitioner applied for his release on bail to a Magistrate of First Class, Bannu, who rejected it on 18-2-1988. Then the Court of Sessions Judge was moved which too on 31-3-1988 did not entertain the plea of bail raised by the petitioner. In the second round, bail sought on the ground of delay in disposal of his case also did not find favour with the learned Magistrate who dismissed it on 31-12-1988. By his order dated 23-1-1989, the learned Sessions Judge while declining bail to the petitioner held that the third proviso to section 497(1), Cr.P.C. Was not attracted to the cases registered under the Special Laws. The learned Sessions Judge perhaps had referred to the bar contained in section 5(6) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) (hereinafter called the Act) which reads as under:-- "An 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 be so released."
4. Haji Saadullah Khan Miankhel, the learned counsel appearing for the petitioner, contended that the Special Court, Bannu, constituted under section 3 of the Act has misconstrued the provisions of subsection (6) of section 5 of the Act to hold that the accused charged for a scheduled offence under the Act was not entitled to the concession of bail under the third proviso to section 497(1), Cr.P.C. And referred to a Division Bench judgment of Karachi High Court reported as Gul Muhammad v. State (1987 PCr.LJ 737).
5. On the other hand, Mr. Hamesh Gul Khan, Advocate, representing the State, has opposed the plea of bail raised on behalf of the petitioner on the grounds firstly, that no Court including the High Court has the jurisdiction to entertain any bail application of an accused person who is involved in the scheduled offences under the Act; and, secondly, that conceding that the High Court has the jurisdiction to grant bail to an accused person involved in a scheduled offence under the Act, still he cannot be granted bail on the ground of delay under the third proviso to section 497(1), Cr.P.C. In support of these contentions, he relied on a Full Bench judgment of this Court in Muhammad Gul v.
State (1985 PCr.LJ 205).
6. A lot of confusion persists since the Act has come into force, over the jurisdiction of the High Court in the matters of bail sought by the persons accused of having committed a scheduled offence under the Act. A Division Bench of the Karachi High Court, in Gul Muhamad's case referred to above, after referring to a plethora of case-law reported as PLD 1986 SC 173; 1985 PCr.LJ 205; PLD 1975 Karachi 628; PLD 1985 Lahore 48; 1986 PCr.LJ 578; 1985 PCr.LJ 890 and 1986 PCr.LJ.2097 including the Full Bench case of Muhammad Gul of this Court cited above, held the view that jurisdiction of the High Court was not barred under subsection (6) of section 5 of the Act to grant bail to the accused charged for scheduled offences on the ground of delay. In this context, it would be worthwhile to reproduce, in extenso, the following paragraph from the report which reads as under:-- "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 Respect 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 undertrial 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 undertrial prisoner if his case attracts the third proviso to section 497(1), Cr.P.C."
6. It has been conceded at the Bar that in the instant case, challan against the petitioner has not yet been submitted to Special Court.
7. A learned Single Judge of this Court, in a recent case of Sareed Khan v. State PLD 1989 Peshawar 80 has held that ratio deducible from the Full Bench case of Muhammad Gul of this Court was that when challan against a person accused of a scheduled offence was not submitted before the Special Court constituted under the Act, the High Courts have power to entertain and decide bail applications.
8. On the contrary, in the precedent case of Gul Muhammad cited above, a learned Division Bench of Karachi High Court has held that ratio in the Full Bench decision of Peshawar High Court in the case of Muhammad Gul v. The State (1985 PCr.LJ 205) was as under:- "We have gone through the entire judgment reported in 1985 PCr.LJ 205 and we find that the Full Bench has not held in this judgment that the High Court has no power after the trial starts. What has been held in this judgment of the Full Bench is that at the pre-trial stage the High Court has power to grant bail, as in the case, which was under consideration, the matter was still under investigation and challan had not been submitted before the Special Court."
' Nonetheless, I have decided to leave the last mentioned proposition undetermined for the present because I am not required to go into it at this juncture.
9. Respectfully following the dictum of the Division Bench of Karachi High Court in Gul Muhammad v. State 1987 PCr.L.T 737 and Sareed Khan, v. State PLD 1989 Peshawar 80 my considered view is that a person accused of having committed a scheduled offence under the Act who has not yet been challaned to the special Court is entitled to seek bail from the High Court if his case attracts the third proviso to subsection (1) of section 497, Cr.P.C.
10. The petitioner was arrested on 28-12-1987 and his trial has not yet commenced. This delay is not shown to have been occasioned by any act or omission of the accused or any other person acting on his behalf within the contemplation of subsection (1) of section 497, Cr.P.C. Similarly the plea of the petitioner for bail does not also fall within the mischief of fourth proviso to subsection (1) of section 497 ibid.
11. In view of what has been discussed above, the plea of the petitioner succeeds and he is directed to be released on bail in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of Special Court, Bannu (Sessions Judge, Bannu).