' This is an application moved by the State through the S.S.P. Hyderabad, for cancellation of the to the respondents on 29-5-1989 by the III, Additional Sessions Judge, Hyderabad in the F.I.R. No,64/89 of City Police Station Hyderabad.
2. As per the F.I.R. On 29-4-1989 at about 8.25 a.m., S.I.P. Munawar Hussain of City Police Station Hyderabad with his staff, left the police Station during curfew relaxation period for patrol duty. He with his staff proceeded to the crossing of Gharib Nawaz Bridge, where during checking of the cars, he detected a Suzuki car coming from SITE area and heading towards Latifabad, the Suzuki car was given signal to stop and was encircled and stopped. The car carried the present respondents who gave their names as Irfanullah, Wasim Khawar, Fasihullah and Iftikhar Ahmed. Each of them was carrying an unlicensed kalashnikov that was loaded. Due to this the respondents were arrested and Police secured from them the kalashnikov submachine guns with the ammunition. During search of the car, Police secured from there two guns and one rifle, for the possession of which none of the respondents had licence. The respondents were taken to the police station alongwith the recovered arms and ammunitions. Such F.I.R. Was lodged by S.I.P. Munawar Hussain at City Police Station Hyderabad on the same day, at 11-30 a.m.
3. On being challaned in Court of the A.C.M. City, the respondents moved said Court for bail. Their bail prayer was rejected on 20-5-1989. Subsequently the respondents moved for bail in the Court of Sessions Hyderabad, where learned IIIrd Additional Sessions Judge ordered their release on bail, under an order dated 29-5-1984. Hence this application.
4. Mr. Ahmed All Memon, Advocate appearing for the State argued that learned Additional Sessions Judge had no jurisdiction to grant bail to the respondents, who were accused of an offence mentioned in the Schedule below the Suppression of Terrorists Activities (Special Courts) Act 1975, because such jurisdiction vested with the Special Courts created by section 3 of the said Act. It was further argued that a case against the respondents was presently pending in the Special Court, under the said Act. That the Special Court was moved for cancellation of the bail, but said Court showed its inability to cancel the bail on the ground that the respondents were not granted bail by that Court.
5. Mr. Nawab Mirza, learned counsel for the respondents took preliminary objection that this application was not maintainable because it was not moved by a Public Prosecutor. In support he relied on a case of State v. Saeed Ahmed (Acquittal Appeal No, 41 of 1985) decided by a Division Bench of this Court, of which I was member. It was further argued that bail cannot be refused as a punishment; Learned counsel for the respondents further argued that when the alleged offence was committed on 29-4-1989, no Special Court was functioning and as such challan against the respondents was submitted on 14-5-1989 in Court of a Magistrate, who refused to grant bail and hence the respondents were entitled to move the Court of Sessions for bail. It was conceded that presently the case against the respondents was pending in the Special Court constituted under the said Act. It was next argued that if the III Additional Sessions Judge was not competent to grant bail, then in the eye of law no bail was granted and consequently the application for cancellation of bail-, was not maintainable. In support learned counsel for the respondents cited the cases of (i)
Muhammad Gul and another v. State 1985 PCr.LJ 205, (ii) Shahzad Hussain and another v. State PLD 1980 Lah. 54, (iii) Shafiq Alam Farooqui and another v. State 1986 P Cr. L J 2243, (iv) Mst. Zeenat Ali v.
State 1985 PCr.LJ 2592 and (v) Abdul Majid v. Judge Special Court (Offences in Banks) Lahore and another 1985 P Cr. L J 890.
6. Section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter to be referred to as the Act) says that notwithstanding anything contained in the Code of Criminal Procedure, the scheduled offence shall be triable exclusively by a Special Court. Para (c) of the schedule of the said Act mentions inter alia the offences punishable under sections 8, 9 and 10 of the Arms Act, if committed in respect of a cannon, grenade; bomb, rocket or a light or heavy automatic or semi-automatic weapon, such as a kalashnikov, G III rifle or any other type of assault rifle. These provisions leave no manner of doubt that the offence allegedly committed by the respondents was exclusively triable by a Special Court constituted under the Act. The respondents have not placed on record any document to show, as to, on what date the Special Court under the Act came into existence at Hyderabad.
7. At the outset, it is to be determined if on 29-5-1989 the Additional Sessions Judge was competent to grant bail in a case of this nature, where besides other arms kalashnikov sub-machine guns were also allegedly recovered from the respondents. In the first instance there is nothing on record to show that on 29-5-1989 no Special Court under the Act, was functioning for Hyderabad Division.
Learned counsel for the respondents cited the case of Muhammad Gul and another v. State 1985 P Cr. L J 205, where the main point, which arose before the Peshawar High Court was, as to, whether the High Court had jurisdiction to grant bail in the cases triable by the Special Court under the Act.
In the cited case note was taken of the fact that an appeal against judgment of the Special Court lies to the High Court within whose jurisdiction the sentence has been passed. In the cited case, the case against the petitioners, who applied for bail, was still under investigation and it was not clear whether the challan would be submitted before a Special Court or before an ordinary Criminal Court. In the instant case the challan against the respondents is pending in the Special Court.
Reliance was also placed on the case of Shahzad Hussain and another v. State PLD 1980 Lah. 54 where the persons, who were accused under the Act, were granted bail by the Special Court and subsequently their bail was cancelled by the Special Court on the ground that they were accused of a scheduled offence. It was the cancellation order, which was challenged in Lahore High Court. In the cited case the principle laid down was that when the Special Court was not functioning due to absence of its presiding officer being on leave etc. The matter could be dealt with by any other Court. This was not position in the present case. Hence cited case would not apply. In the case of Shafiq Alam 1986 P Cr. L J 2243, it was held that a Special Court under the Offences in respect of Banks (Special Courts) Ordinance, 1984, cannot take cognizance of an offence except upon a report in writing. No such point has arisen in the instant case. In the case of Mst. Zeenat Ali 1985 P Cr.
L J 2592, the view taken was that powers of the High Court to grant bail under Section 497 of Cr.P.C.
In respect of a scheduled offence under the Offences in respect of Banks (Special Courts)
Ordinance, 1984, were unaffected. In the case of Abdul Majid 1985 P Cr. L J 890, it was held that the High Court had jurisdiction to grant bail to the accused involved in a scheduled offence, under the offences in respect of Banks (Special Courts) Ordinance, 1984. In the instant case the petitioner challenged competency of the Additional Sessions Judge to grant bail to a person accused of a scheduled offence under the Act. The point about competency of a High Court to grant bail to such an accused, has not been mooted in the instant case. However, no analogy can be taken from the cases, where the question arose, as to, whether the High Court could grant bail in respect of a scheduled offence under the Offences in Respect of Banks (Special Courts) Ordinance, 1984. Hence the cases cited on behalf of the respondents do not support the contention raised by learned counsel for the respondents.
8. Section 5 of the Act has been substituted by new sections 5 and 5-A. No doubt, the words "or by any other Court" have been incorporated in subsection (8) of newly-added section 5-A of the Act.
However, provisions contained by subsection (8) of section 5-A of the Act restrict the power of releasing an accused on bail, by using the words "shall not be released on bail". In my humble view said provisions do not increase number of Courts competent to grant bail in a scheduled offence under the Act. Any other interpretation would come in conflict with the provisions contained by subsection (1) of Section 4 of the Act.
9. Before granting bail to the respondents, the IIIrd Additional Sessions Judge should have recorded a finding on the basis of some material, that the Special Court under the Act, had not yet been constituted. This has not been done, and consequently the IIIrd Additional Sessions Judge had no jurisdiction to grant bail to the respondents.
10. In the case of State v. Saeed Ahmed (Acquittal Appeal No, 41 of 1985) the point at issue was, whether the acquittal appeal could be filed by a person other than the Public Prosecutor. This point arose because, as per Section 417, Cr. P. C. An acquittal appeal can be filed by a public prosecutor on receiving such direction from the Provincial Government. There is nothing in subsection (5) of section 397 of Cr.P.C. That an application for cancellation of bail can be filed only by the Public Prosecutor. Moreover, all the Superintendents of Police are ex officio Public Prosecutors in respect of cases of their districts, as per para 27.4 of the Police Rules 1934. Consequently no fault can be found with the present application, if it is moved by the S.S.P. On behalf of the State.
11. There is no substance in the argument, that the cancellation application be held non- maintainable and rejected, because the order passed by the IIIrd Additional Sessions Judge granting bail to the respondents was illegal. An illegal order requires to be set aside and for that purpose an application may be moved. Although suo motu also an illegal order can be set aside.
12. As a result of the above discussion, I am of the view that learned IIIrd Additional Sessions Judge was not competent to grant bail to the respondents. Moreover it was a heinous offence and the case had not yet proceeded in the proper Court. The order passed by learned Additional Sessions Judge on the face of it appears to be perverse and needs interference by this Court.
13. Consequently I accept this application and cancel the to the respondents. This order would not debar the respondents from moving the Special Court under the Act for bail, if so advised.
14. These were reasons for my short order dated 14-6-1990 under which accepted this application and cancelled the hail granted to the respondents by the learned IIIrd Additional Sessions Judge, Hyderabad.
Bail cancelled.