' MAMOON KAZI, J.--- Applicants Asif Ali Zardari and Ali Bux Abbasi have been indicted before the learned Special Courts Nos.I and II for Suppression of Terrorist Activities, Karachi for allegedly committing offences under sections 13(f) and 16(b) of Pakistan Arms Ordinance, 1965 and sections 365-A, 395 and 109, P.P.C. Read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, respectively. During the pendency of their trial, after the applicants had respectively remained under detention for a continuous period exceeding one year, they moved their respective bail applications first before the learned trial Court and subsequently before this Court by invoking the third proviso to section 497, Cr.P.C. Which enabled them to seek bail on the ground of their continuous detention in custody for the said period. When the said applications were pending, Ordinance No,XV of 1992 was promulgated on the 16th November, 1992 which amended section 497, Cr.P.C. With immediate effect by omitting the third and the fourth provisos from the said section. The same has consequently resulted in depriving persons under custody of right to seek bail under the said provisos. The main question that has arisen for determination is, whether the said Ordinance operates retrospectively in the present case. Some ancillary and incidental questions have also been raised which we propose to dispose of by this common judgment.
2. According to the facts of Criminal Bail Application No,839 of 1992, which has been filed on behalf of applicant Asif All Zardari, F.I.R. No,260 of 1990 was lodged on 26-8-1990 at 6-30 p.m. At Police Station Shahra-e-Faisal, Karachi alleging recovery of arms from two persons, namely Muhammad Akbar Samejo and Muhammad Razzaque Awan in respect of which licence had been issued in the name of applicant Asif All Zardari. But the same had expired on 31-12-1989. It was alleged that the applicant had failed to surrender or deposit the said arms either with any police station or a licensed arms dealer in contravention of section 10 of the Arms Act. Subsequently, the same had been given into custody and possession of the said persons. The applicant was, therefore, charged with commission of offences punishable under sections 13(f) and 16(b) of the Arms Ordinance as pointed out earlier.
3. Although the F.I.R. In respect of the said offence was lodged in August, 1990 but the same remained pending as no further action was taken thereon by the police. The challan was, however, submitted before the learned trial Court on 16-11-1991. The applicant was already in custody when the F.I.R. In respect of the said offence was registered by the police.
4. Bail application on behalf of the applicant was filed before the learned trial Court on 13-10-1992, invoking third proviso to section 497(1), Cr.P.C. The application was, however, dismissed by the learned trial Court on 4-11-1992 as it was found that the application filed by the applicant was premature as the period of one year had not expired and the applicant was himself instrumental in causing protraction of the trial. Thereafter, the present application was moved on behalf of the applicant on 10-11-1992.
5. So far as the facts of Criminal Bail Application No,290 of 1992 filed by applicant Ali Bux Abbasi are concerned, the applicant is one of the accused in the case which is pending before the learned Special Court for Suppression of Terrorist Activities under sections 365-A and 120-B, P.P.C. The applicant was arrested in April, 1990 in connection with the said case and theresince he has continuously remained under detention.
6. On 27-4-1991 an application on behalf of the applicant and co-accused Dr. Babar Jamali and Noor Ahmed Abbasi was filed before the learned trial Court wherein the third proviso to section 497(1), Cr.P.C. Was invoked. However, after the said application had been kept pending for nearly a year, an order was passed by the learned trial Court dismissing the said bail application. It was held by the learned trial Court that the said applicant was not entitled to the benefit of the third proviso in view of the judgment of the Supreme Court in Muhammad Aslam v. The State 1991 SCMR 599. Although, according to the learned trial Court, the observations made in the said case related to the provisions of Ordinance IX of 1984 but the provisions of section 5(6) of the said Ordinance which were under examination were similar to the provisions of subsection (8) of section 5-A of the Suppression of Terrorist Activities Act, 1975 under which the applicant was being tried.
7. Thereafter, bail application was filed on behalf of the applicant before this Court on 21-4-1992 which was, however, dismissed for the same reasons by a Division Bench of this Court of which one of us (Mamoon Kazi, J.) was a member.
8. The applicant, thereafter, moved the Honourable Supreme Court which set aside the order of the Division Bench and referred the case to this Court for reconsideration since after the decision of the Supreme Court in the case of Muhammad Aslam, another judgment was given by the Honourable Supreme Court in the case of The State v. Syed Qaim Ali Shah 1992 SCMR 2192 wherein the earlier judgment in the case of Muhammad Aslam was reviewed and it was held that the third proviso to section 497(1), Cr.P.C. Was available to the accused facing trial before a Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975.
9. The main contention of Mr. Aitizaz Ahsan, learned counsel for applicant Asif Ali Zardari has been that, the accused is entitled to bail under the said proviso as of right and no enactment can operate retroactively so as to take away existing rights. Reliance has been placed by him upon the observations made by Muhammad Afzal Zullah, J. (as he then was) in Nazir Hussain v. Ziaul Haq 1983 SCMR 72. In this case, the learned Judge while speaking on behalf of the Supreme Court, has observed:-- "9. The ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497, Cr.P.C. Before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That is why the Legislature intervened and the law was made more certain. One of the changes effected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word 'shall' in the third proviso, is in the meaning of 'may'. Learned counsel failed to notice that while in first proviso the words 'may' has been used, in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for the 'word' shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it becomes due in the context of bail. We accordingly repel the argument of the learned counsel and hold that word 'shall' in third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub-clause
(b) to show the grant of bail on ground of delay in cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirely of the discretion of the Court it is empowered to take into account the expected/apprehended delay."
' The view taken in the above case was followed in Roshan v. The State 1989 P Cr. L J 31.
10. As to retroactive operation of statutes, N.S. Bindra, in his Book Interpretation of Statutes 7th Edition, at page 851 while relying upon the observations made by the Indian Supreme Court in K.
Eapen Chacko v. Provident Investment Co. (P.) Ltd. AIR 1976 SC 2610 has observed:-- "Perhaps no rule of construction is more firmly established than this -that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. A statute which impairs vested rights or the legality of past transactions or the obligations of contract should not prima facie be held to be retrospective. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions already past must be presumed to be intended not to have retrospective effect. Such rights cannot be taken away by implication."
' The right of a party to institute a suit or to file an appeal in a particular Court in view of the decision of the Privy Council in Colonial Sugar Refming Co. v. Irving 1905 AC 369 has always been regarded as a substantive right and not merely a matter of procedure or procedural law. The said principle is now found reflected in clauses (c) and (e) of section 6 of the General Clauses Act, which provides that:-- "6. Effect of repeal.--- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a)-------------------------------------------------------------
(b) -------------------------------------------------------------------------------
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) -------------------------------------------------------------------------------
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, .
Obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
' The above provisions could not be better expounded than by the following observations made by the Supreme Court in the case of Saeed Ahmad v. The State PLD 1964 SC 266. In this case section 165-B was introduced in the Pakistan Penal Code which exempted bribe-giving under inducement or threats from operation of section 165-A, P.P.C. Question arose, whether section 165-B which was introduced in the Pakistan Penal Code during the pendency of an appeal filed by the acused against his conviction under section 165-A, P.P.C. Could receive retrospective operation in order to determine guilt of the accused. In other words, whether the guilt of the accused could be determined on the basis of the law as it stood on the date when he committed the offence or the same was to be determined in accordance with the law as it stood when the appeal was decided by the High Court. It was observed by the Supreme Court in this case as follows:- "As to the applicability of a statute which is enacted after the coming into existence of the acts or events, the legal effects which are to be determined, the law is not in any doubt. So far as substantive rights of parties to a litigation are concerned, a law which comes into force either during the pendency of the proceedings in a Court or even before the institution of such proceedings, but after the coming into existence of the events, the legal effect of which is to be determined, can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess expressly or by necessary implication. If a person died before 1948 and he was governed in matters of inheritance by custom, an act passed in the year 1948 according to which all his property is to descend to his heirs in accordance with Muhammadan Law has obviously no effect whatsoever on the rights of parties even though the litigation began after the new act came into force. When rights once vest in parties they are not affected by any legislation that has merely prospective effect. This is the position so far as substantive rights are concerned. So far as the procedural provisions are concerned the ordinary rule is that Courts continue to have the jurisdiction which they had at the time when a proceeding was instituted even though that jurisdiction is subsequently taken away, but an interpretation of the new Act may lead to a different result. Not long ago we held that all appeals which were competent under the old Constitution could be filed if the judgment under appeal had been delivered when the previous Constitution was still in force. Even if the appeal was in such a case filed after the coming into force of the new Constitution that would make no difference to the competence of the appeal. It is true that sometimes the jurisdiction of a Court to pass a particular kind of order may be taken away by a new Act so that it can henceforth pass no order of that kind even in a pending proceeding, but as I have said this will depend upon the interpretation of the new statute."
' When the provisions of section 6 of the General Clauses Act once again came to be examined in the case of Sona v. The State PLD 1970 SC 264 the same view was once again propounded by the Supreme Court. It was observed in this case as follows:- "Section 6 of the General Clauses Act of 1897 which applies to Central Acts or Regulations is also in the same terms and language. One of the effects of the repeal is that it shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. It is, therefore, quite clear that all the investigations or proceedings which are contemplated are to continue as if the Repealing Act or Regulation had not been passed. On this language it is quite clear that the trial of criminal cases has to be in accordance with rules of procedure in force at the commencement of the trial and the same procedure has to be followed."
11. As it has been earlier observed, unless there is a clear intention expressed by the Legislature to give retrospective effect to a statute affecting an existing right or a privilege, a statute is always presumed to be prospective in operation, that is to say it is applied to cases and facts which came into existence after its enactment. This was stated to be, in Nabi Ahmad V. Home Secretary, Government of West Pakistan PLD 1969 SC 599, not a statutory protection but a principle to effectively check by virture of presumption of fair-play, existing rights. Its origin was said to be found in the conscientious abhorrence that all just men have for the injustice that is inherent in changing the legal implications of a situation to the disadvantage of those who would otherwise benefit by a right which existed at the time of the change. Similar view has been expressed by the Supreme Court in the Income-tax Officer v. Sulaiman Bhai Jiwa PLD 1970 SC 80. In this case, it was further observed that use of the words such as "shall" or "hereinafter" is to be taken to indicate an intent that the statute is to be construed as prospective only; on the other hand, the use of the words denoting past tense such as "has been" or "heretobefore" D constitutes an explicit declaration that the Act is to be construed retrospectively.
12. The general principle relating to retrospective operation of statutes, which has been prepounded in the above cases including the case of Colonial Sugar Refining Company seems to be that, if the matter in issue is a matter of procedure only, the statute would operate retroactively.
However, if it touches a right in existence at the time of passing of the statute, then according to a long line of authorities the Legislation would not operate retrospectively unless such an intention is expressed by the Legislature either by express words of the statute itself or by necessary intendment. The distinction between substantive and procedural law drawn in Salmond's Jurisprudence, 12th Edition, at page 128 has been explained in PLD 1969 SC 599 thus:-- "The law of procedure may be defined as that branch of the law which governs the process of litigation All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter."
' Thus: "'a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party', 'rules defining the remedy as those which define the right itself, that part of criminal law which deals, not with crimes alone, but with punishments also, as the measure of liability and many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law," ' and, as such must be treated as falling within the classification of substantive law. In this category has been included by this Court the change of forum--- ' If in the process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice."
' In Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187, although, the above distinction between statutes dealing with mere matters of procedure or substantive rights was once again reconfirmed, but the question arose as to what are the matters of procedure, and those of substantive rights. Reference in this regard may be made to the following observations made by Hamoodur Rahman, C.J. Who delivered the judgment on behalf of the Supreme Supreme Court:-- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
13. Challenging the correctness of the contentions raised by Mr. Aitiza7 Ahsan on behalf of applicant Asif All Zardari, Mr. Aftab Ahmed Akhund, the learned. Advocate-General has strenuously contended that grant of bail to an accused person is a mere matter of procedure and not of a substantive right. While referring to the third proviso to section 497(1), Cr.P.C., the learned Advocate-General has argued that even if it is assumed that the said proviso creates a right in favour of the accused, the same only being a procedural right, must be deemed to have been extinguished with the repeal of the enactment itself. The learned Advocate-General has further contended that even the existence of such right, if any, would depend upon the satisfaction of certain conditions as laid down by the said proviso or the fourth proviso to section 497(1), Cr.P.C.
Consequently, the said right in any case is not an absolute right or a vested right. Additionally, it has been argued that in any case the right to apply for bail under the third proviso has not accrued to applicant Asif All Zardari as he has not been under detention for a continuous period of one year in connection with the present case as postulated by the said proviso and consequently such right, in any case, has not yet ripened.
14. So far as the last contention of the learned Advocate-General is concerned, there is no controversy on the point that when F.I.R. In the present case was lodged, applicant Asif All Zardari was already in confinement in connection with a number of criminal cases which were pending against the applicant in different Courts. The challan in the case was filed by the prosecution on 16-11-1991 after a lapse of more than a year after the F.I.R. In the case had been registered by the police. No formal arrest of the applicant was made by the police in connection with the present case. Our attention has been invited to a letter dated 6-11-1991 addressed by the then S.D.P.O., Airport Sub-Division, Karachi to the Senior Superintendent of Police, District East; Karachi which shows that the said S.D.P.O. Was directed to file a charge-sheet against applicant A.Cif All Zardari in the competent Court of law. Thereafter, on 16-114991, the applicant was charge-sheeted before the learned trial Court. Learned Advocate-General has argued that the date of filing of the challan would be the date for the purpose of computation of the period of one year, entitling the applicant to grant of bail under the third proviso to section 497(1), Cr.P.C., whereas according to Mr. Aitizaz Ahsan, such period must be computed from the date when the F.I.R. In respect of the offence had been lodged against the applicant, such date being 26-8-1990. The third proviso to section 497(1) indicates that a right to apply for bail under the said proviso accrues to an accused, who has been detained for an offence, for a continuous period exceeding one year or as the case may be, two years and whose trial for such offence has not concluded. The period of detention must at least be one year in case of an offence not punishable with death and two years in case of an offence punishable with death. It would thus appear that only such person who has been detained for an offence for a continuous period exceeding one year, or, as the case may be, two years and whose trial for such offence has not concluded can invoke the said proviso to section 497(1), Cr.P.C. It, therefore, follows that right to apply for bail under the said proviso cannot accrue to an accused person unless he has remained under detention for an offence for the period referred to in the said proviso. Such period is, therefore, to be computed not from the date of filing of challan by the prosecution, but the date on which the accused was detained in custody. The only question to be considered by the Court, therefore, would be as to the continuous period of detention of the accused. In the present case, as has been pointed out earlier, the applicant was already under detention in connection with other criminal cases. In case this period is computed from the date when the challan in the case was filed, the same being 16-11-1992, then the obvious inference would be that the applicant had not completed one year in custody as postulated by the third proviso to section 497(1), Cr.P.C. At the time of filing of the bail application because admittedly his application had been presented before the learned trial Court on 13-10-1992 and a similar application had been filed before this Court on 10-11-992. However, the endorsement made on the letter of S.D.P.O., Airport Sub-Division dated 6-11-1991 by the Superintendent of Police, District East, Karachi, dated 7- 11-1991 reference to which has earlier been made in this order, undoubtedly indicates that the applicant who was already in jail was also to be treated as arrested in the present case. Such endorsement, therefore, indicates that if not before, at least the applicant was arrested in connection with the present case on 7-11-1991. Consequently, in case the period of detention of one year in the case of the applicant had not expired at the time of filing of the application before the learned trial Court, the same undoubtedly had expired before 10-11-1992 when the bail application for the applicant was filed in this Court. Consequently, in our opinion, the preliminary objection taken by the learned Advocate-General, cannot be supported either on the factual or any legal ground.
15. In support of his contention that grant of bail to an accused is a matter of procedure and not that of substantive or vested right, the learned Advocate-General has, first of all, referred to Has'bury's Laws of England, Volume 36. In this Book (Third Edition), at page 423, the learned author has observed:-- "The general rule is that all statutes, other than those which are merely declaratory, or which relate only to matters of procedure of evidence, are prima facie prospective; and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature."
' Referring to Craies on Statute Law, Seventh Edition, page 366, the learned Advocate-General has argued that the latest expression of the will of Parliament must always prevail. The learned author in the said Book at the said page has observed as follows:- "'The latest expression of the will of Parliament must always prevail.' It does not matter whether the earlier or the later enactment is public, local and personal, or private, or is penal or deals with civil rights only, and the rule is equally applicable to Orders in Council or Rules of Court if they have statutory force and are made under authority empowering the rule-makers to supersede prior enactments as to procedure..."
' Reliance has also been placed by the learned Advocate-General on the following passage at page 569 from Crawford's The Construction of Statutes:-- "A purely statutory right may be, by the power conferring it, made to depend upon a new condition, or taken away entirely. A statute of limitations, strictly so-called, operates on the remedy directly. A statute changing the condition of a right of action for damages given by statute, is a condition precedent to the right to such damages, hence acts directly on the right, and is not a statute of limitations in the ordinary legal sense of the term. Such rights are not protected against impairment, by Constitutional guaranties, while rights which exist independent of the statute are so protected. A law changing the time for, or conditions of, the enforcement of a common-law right, is in the nature of a statute of limitations which, if of such a character as to materially affect the right itself, is within the inhibition of the Constitution in regard to the passage of laws impairing the obligation of contracts or taking property without due process of law. A change in the law as to the time for the enforcement of existing rights, or imposing a new condition of such enforcement, which does not allow a reasonable time within which to commence an action for such enforcement or comply with the new condition, is within the inhibition mentioned and is void as to existing rights, otherwise valid." Relyea v. Tomahawk Paper & Pulp Co., 102 Wis, 301, 78 N.W.
412."
' Reference has been made by the learned Advocate-General to the meaning of the expression "vested rights" in Black's Law Dictionary, Fourth Edition at page 1735. The expression includes "Rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or cancelled by the act of any other private person, and which it is right . And equitable that the Government should recognize and protect, as being lawful in themselves, and settled according to the then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare." The expression has been further defined to include rights "which cannot be interfered with by retrospective laws, are interests which it is proper for state to recognize and protect and of which individual cannot be deprived arbitrarily without injustice".
16. The expression "vested right" also came under discussion before the Supreme Court in the case of Mian Rafi-ud-Din v. The Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252. A question arose before the Supreme Court whether a person applying for transfer of a property out of the compensation pool was entitled, as of right, to have that property transferred to himself, if he was a claimant, and was in possession of the property. Referring to the connotation of said expression M.R. Khan, J. While writing a separate judgment in the said case observed:-- "A 'vested right', an 'accrued right' or a 'substantive right' does not mean only title to property or office; a right, benefit or an advantage conferred by a statute, if availed of by doing a thing as required by the statute, is also a right of this kind. Again, if a right, benefit or advantage conferred by a statute is dependent on the happening of a contingency, then, the same becomes a 'vested or accrued right' after the contingency has happened. This can be illustrated by giving some instances. For example, a co-sharer's statutory right to pre-empt the land transferred by another co-sharer out of the common holding, is a substantive right; this right of pre-emption is the co- sharer's 'vested right' and is capable of being enforced. After the Court has granted pre-emption, the pre-emptor again acquires a 'vested right' in the land itself. Similarly, a mortgagor's right to redeem a mortgage is a 'vested right' and is enforceable. Again, a lessor has a right under section 106 of the Transfer of Property Act to determine a monthly tenancy in respect of an urban property by 15 days' notice to quit. This right conferred by the statute is to be availed of by giving such a notice. After such a notice has been given, the lessor acquires a substantive right to eject the lessee and to get possession of the demised premises. This is the lessor's 'vested right'. If the lessee does not quit pursuant to the notice, the lessor is entitled under the law to recover compensation from the lessee for the unauthorised use and occupation of the premises. The right to recover compensation is yet another substantive right. If the lessor has obtained a decree for compensation in a suit brought for the purpose, then, the decree so obtained by him becomes a property and his right thereto is his 'vested right'."
' The learned Judge concluded in the end that "the right conferred by a statute which is awaiting adjudication, as in the present case, is as much a substantive or vested right as title to property or office". It was finally held in this case that the notification issued by the Government which affected the eligibility of the petitioner for transfer of a cinema, destroying his entitlement to transfer thereof, did not merely relate to matters of procedure but it affected the petitioner's substantive rights, and therefore, the same could not receive retrospective operation.
17. Reference in this regard may also be made to The State v. Maulvi Muhammad Jamil PLD 1965 SC 681 where leave was granted by the Supreme Court to consider the question, whether on a change in procedural law brought about by a competent Legislature, during pendency of a criminal case, trial is to be held as required by the old or the new procedure. In this case, sections 256 and 257 of the Criminal Procedure Code, as were applicable at the relevant time, were amended debarring the accused to recall a prosecution witness who had already been cross- examined. The effect of the amendment was that no witness who had been cross-examined before the charge could be recalled for further cross-examination under section 257 of the Criminal Procedure Code. Although the Supreme Court held that the new law would govern the holding of the trial, but the same was not merely for the reason that the question related to an amendment in the procedural law. The main reason which appears to have prevailed with the Supreme Court was that section 540 of the Criminal Procedure Code could always be pressed in aid by the Court in order to ensure a fair trial. Consequently, it was held that no prejudice would be caused to the accused.
18. Learned Advocate-General while referring to the case of Muhammad Bashir v. The Province of West Pakistan PLD 1958 (W.P.) Lah. 853 has argued that the cases relied upon by Mr. Aitizaz Ahsan are distinguishable in view of the observations made by Kaikaus, J. In the above case. The observations referred to by the learned Advocate-General are as follows:-- " But a procedural provision, even though we may call the authority or power granted by it to a person a 'right' does not create a right which may exist independently of the continuance of the provision creating it. The procedural 'right' continues only as long as the procedural provision exists and does not survive it. While a person can claim that a substantive right which he possesses should be enforced he cannot claim that the procedure for the enforcement of his right which was in force when the proceeding commenced must be taken to its very end. (p.864) E". Reliance has also been placed by the learned Advocate-General upon the case of Bank of India Ltd. v.
Muhammad Ashraf PLD 1965 (W.P.) Kar. 69 wherein it was held with reference to an amendment in the law of limitation that question of limitation was a matter of procedure only and vested right in the period of limitation cannot be claimed in absence of a clear provision to the contrary. It was further held that enactments dealing with procedural matters such as limitation are generally retrospective in operation governing even cases in which cause of action arose before coming into force of the new legislation. It was further held that only provisions touching or taking away existing or vested rights would be protected from the rule of retrospective operation.
19. We would like to point out that the case reported in PLD 1958 (W.P.) Lah. 853 was considered by the Supreme Court in Sona v. The State PLD 1970 SC 264 but was not approved by it as it was held that the trial of criminal cases has to be in accordance with the rules of procedure in force at the commencement of the trial and the same procedure has to be followed.
20. The consensus, therefore, appears to be that unless such an intention has been expressed in a statute or the same can be clearly gathered by necessary intendment, no statute is to be construed so as to operate retrospectively and take away vested or substantive rights. There being a presumption that the legislature could not have intended to enact what is unjust, a statute cannot be given retrospective operation so as to impair existing rights, whether they be contractual or vested rights, or those acquired under a statute. The same presumption would apply in case of statutes creating a new obligation or a new disability or imposing a new duty.
However, since no person has a vested right in the course of procedure, any alteration in the procedure must operate retrospectively, unless a different intention can clearly be spelt out from the statute itself. Where the rights and procedure are dealt with together by a statute such construction must be preferred whereby existing rights are dealt with in accordance with the old procedure and new rights are dealt with by the new procedure. The same rule should equally apply to rights which have purely accrued under a statute. However, as was held in Adnan Afzal's case, if in the process of change of law any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of procedural statute, favour an interpreation giving retrospective effect to the statute. Even in the case of Maulvi Muhammad Jamil PLD 1965 SC 681 the Supreme Court appears to be conscious of the same rule.
Although it was held in this case that the new law should be enforced even in a pending case and the accused should not be held entitled as of right to recall witnesses already examined before the charge, but the reasons given by the Supreme Court in the end are clearly indicative of that fact that it was conscious that the change in the procedure could not have interfered with the right of the accused to cross-examine a witness as in any case, no prejudice could be caused in view of the availability of section 540, Cr.P.C. Which could be pressed in aid in order to ensure a fair trial. A clear distinction has been drawn by the above authorities between matters which are purely procedural and those which affect a right or a privilege originally enjoyed by the accused under the old law. If the matter is purely procedural then any change that does not affect any existing right or privilege can operate retrospectively. To illustrate the point, if the law is altered so as to merely bring about a change of forum, leaving the right to sue intact, the alteration being a matter of mere procedure, not affecting any existing right or privilege enjoyed by a party, the same can operate retroactively; however, if right to sue is itself taken away, the new law cannot operate retrospectively as right to sue is a substantive right which cannot be taken away by retrospective operation.
20-A. We now advert to the most pertinent question; whether the right of an accused to apply for bail under the third proviso to section 497(1), Cr.P.C. Is a substantive right or a mere matter of procedure in respect of which no vested right can be claimed by the accused after promulgation of Ordinance XV of 1992. Conceding that the right to apply for bail under the third proviso to section 497(1), Cr.P.C. Is a statutory right, in contradistinction to a vested right, the learned Advocate- General has argued that, the right, if available to the applicants in the present case, died with the omission of the said proviso from section 497(1). The learned Advocate-General has further argued that the right enjoyed by the applicants under the said proviso was not an absolute right as the same was dependent upon satisfaction of certain conditions which required an inquiry to be first held by the Court as it is first to be determined under the said proviso or the fourth proviso to section 497(1), Cr.P.C. Whether the accused is an ex-convict or a dangerous, desperate or a hardened criminal. The accrual of such right would also depend upon a finding, whether the accused was himself instrumental in causing protraction of the trial. Therefore, according to the learned Advocate-General, right to apply for bail under the said proviso would accrue to an accused person, if all the said conditions are satisfied. Consequently, no person can claim to have an absolute right in observance of the aforesaid procedure.
21. No doubt, the Court, before allowing the benefit of bail to the accused under the said proviso, is obliged to hold a preliminary enquiry as referred to above if such an issue is raised before it, but it does not follow that the right to be granted bail under the said proviso is a contingent right or a right which depends upon satisfaction of the said conditions. No doubt, the existence of any of the factors entailing disqualification for an accused person to invoke the third proviso to section 497(1) as referred to in the said section would debar him from applying for bail under the said proviso, but absence of any such factor, on the other hand, would give right to an accused to seek bail under the said proviso, if his case otherwise falls within the ambit of the said proviso. It is, therefore, not the fulfilment of the said conditions which gives right to an accused to apply for bail under the said proviso, but right to apply would be inherent in the non-existence of the said factors. In other words, right to apply under the third proviso would accrue to the accused if his case does not fall under any of the exceptions to the said proviso; provided the other conditions referred to therein are satisfied. It would, therefore, be erroneous to assume that the right to apply for bail under the said proviso is dependent upon fulfilment of any conditions and consequently, the right is not an absolute right. Before introduction of the third proviso in section 497, Cr.P.C., bail could be granted to the accused on the ground of delay in the conclusion of the trial, but in absence of any statutory provision in this regard, it was purely left to the discretion of the Court to grant bail under such circumstances. The effect of introduction of the said proviso clearly has been to take away such discretion and give right to the accused to apply for bail on the ground of delay, as was pointed out by the Supreme Court in the case of Nazir Ahmad v. Ziaul Haq, reference to which has earlier been made in this order. Consequently, the right to apply for bail under the third proviso, although, accrues under a statute, but the same is a valuable right vesting in an accused person. No doubt, after introduction of the said amendment in section 497, Cr.P.C. By Ordinance XV of 1992, the Legislature clearly intended to divest the accused of such right as was previously enjoyed by him under the said proviso, but in absence of any express words occurring in the amending Ordinance, it would be erroneous to assume that the legislature intended to apply the new change in the law retroactively so as to take away this valuable right even in cases where the same had already accrued to the accused. Even assuming that the right is not a vested right, nevertheless it is a valuable statutory right vesting in an accused, which in absence of any provision to the contrary cannot be taken away by the said amendment. As was observed in the case of Zahoor Elahi v.
State PLD 1977 SC 273 by Muhammad Yaqub Ali, CJ., under section 497 of the Criminal Procedure Code, bail is a right which could only be denied on the conditions contained in the special statute.
Consequently, in our view, the applicants are entitled to bail under the third proviso to section 497(1), notwithstanding the amendment introduced through Ordinance XV of 1992.
22. There is another important aspect of this case which we must not fail to notice. As it has been pointed out earlier, when alteration in the law was made on 16-11-1992, both the bail applications were already pending before this Court. The right to apply for bail, as we have pointed out earlier, had already accrued to the applicants at the time when the said amendment was made in the law. We would like to point out that the rule of interpretation in respect of retrospective operation of statutes applies differently in case of pending actions. Pending actions, by all canons of interpretation, are to be governed by the law as was applicable at the time when the action had begun. Maxwell on the Interpretation of Statutes, 10th Edition, at page 221 observes:- "In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows clear intention to vary such rights."
' This principle of interpretation -was followed in the dissenting judgment by M.R: Khan J., in Mian Rafiuddin v. The Chief Settlement and Rehabilitation Commission, reference to which has earlier been made in this judgment. No doubt, the freedom of the Legislature to express itself otherwise is not restricted or reduced, but as already pointed out, nothing can be spelt out from Ordinance XV of 1992 to indicate that the same was intended to apply retrospectively even to pending cases so as to take away the right of an accused to obtain bail by invoking the third proviso. Consequently, in no case it can be held that the new amendment has affected such right of the accused to seek bail under the third proviso.
23. The alternate plea of the learned Advocate-General is that even in case a conclusion is arrived at, that the powers of this Court to enlarge the accused on bail under the third proviso are still intact in cases where the right has already accrued before coming into force of Ordinance XV of 1992, the question whether the case of the present applicants falls under any of the exceptions to the third proviso is still to be considered by the Court. However, for determination of the question, according to the learned Advocate-General, the case should be remanded to the learned trial Court for an inquiry. The learned Advocate-General has contended that in both the cases the learned trial Court did not advert to the said issue as the bail applications were respectively dismissed on the ground, either that the said proviso in view of the restrictive provisions of the Suppression of Terrorist Activities (Special Courts) Act was not available to the applicants or the right to apply for bail under the said proviso had not yet ripened. We would like to point out that the powers which vest in this Court under section 498, Cr.P.C. In regard to grant of bail to an accused are not appellate powers, but notwithstanding the fact that the accused can approach this Court after rejection of his bail application by the trial Court, the powers exercised by this Court under section 498 are coextensive with those exercised by the trial Court under section 497, Cr.P.C. We, therefore, invited the learned Advocate-General to raise such a plea before this Court provided there was any material in the hands of the prosecution to establish that the applicants suffer from any disqualification as envisaged by the third or the fourth proviso to section 497, Cr.P.C. It is pertinent to point out that no such ground was urged by the learned Advocate-General before us.
The orders respectively passed by the learned trial Court in the case of the two applicants indicate that, although in the case of applicant All Bux, the learned trial Court has dismissed the bail application principally on the basis of the dictum laid down by the Supreme Court in the case of Muhammad Aslam v. The State 1991 SCMR 599, in the case of applicant Asif Ali Zardari, the learned trial Court has rejected the application, firstly, on the ground that the ground of delay was not available to the applicant as he had remained in confinement in a number of criminal cases and the challan in the present case was filed on 16-11-1991 'and secondly, on the ground that the applicant had been attending a National Assembly Sessions and was not available on 16-5-1992, therefore, the case had to be adjourned to 30-5-1992. The learned trial Court, therefore, appears to be of the view that as the case had been adjourned for fifteen days on account of the non- availability of the applicant the said period is to be excluded and consequently, it was held that the statutory period referred in the third proviso had not yet expired and consequently, the bail application had been filed .Prematurely by the applicant. Although the learned Advocate-General to some extent appears to be right that both the learned trial Courts did not advert to the question of the applicability of the third or the fourth proviso which was incorporated in section 497(1), Cr.P.C.
To exclude cases of accused who were ex-convicts who were desperate, dangerous, or hardened criminals from the benefit of the third proviso, however, the burden would always be on the prosecution to establish that the case of the accused falls within the purview of any of the said exceptions to the third proviso. The accused would try to establish before the Court that after the expiry of the statutory period referred to in the third proviso to section 497(1), Cr.P.C. He has become entitled to be enlarged on bail irrespective of the seriousness of the case in which he is being tried or the restrictions contained in section 497(1), Cr.P.C. Itself. However, in the present case, neither any such material was placed before us from which such an inference can be drawn nor such plea was raised by the learned Advocate-General before us. Since we are of the view that such a plea could have been raised before us by the learned Advocate-General, the powers exercised by this Court under section 498 being co-extensive with those exercised by the learned trial Court under section 497, Cr.P.C. As earlier pointed out, the contention raised by the learned Advocate-General cannot be accepted.
24. The next contention of Mr. Aitizaz Ahsan is that notwithstanding the change in the law, applicant Asif Ali Zardari could still be enlarged on bail on the ground of delay in the conclusion of the trial.
Referring to the observations made in para. 14 of the judgment of the Supreme Court in the case, The State v. Syed Qaim Ali Shah 1992 SCMR 2192, the counsel for the applicant has argued that under subsection (1) of section 5-A of Suppression of Terrorist Activities (Special Courts) Act, 1975, the Special Court is obliged to decide the case speedily and not to adjourn the case unless the same is necessary in the interest of justice and that too for not more than two days under subsection (2) of the same section. It has been pointed out that in case of Asif All Zardari, after filing of the challan before the learned Special Court, not a single witness has been examined so far. In the case of applicant All Bux Abbasi, it has been pointed out that he has remained continuously in custody for more than two years, but his trial has not yet concluded. Consequenity, notwithstanding the said amendment made in section 497, Cr.P.C. The case of the applicants can still be considered on the ground of delay. According to the learned counsel, mere omission of the third proviso and the fourth proviso from section 497(1), Cr.P.C. Would only have the effect of placing the accused in the same position in which he was before the said provisions had been incorporated in section 497, Cr.P.C. Learned Advocate-General, on the other hand, has argued that although in the case of Qaim Ali Shah the Supreme Court has held that the accused were entitled to the benefit of third proviso, nevertheless it was further observed that the provisions of subsection
(8) of section 5-A were in pari materia with the provisions of section 497(1), Cr.P.C. Which provides for similar restrictions in respect of an accused in whose case there are reasonable grounds to believe that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. Consequently, according to the learned Advocate-General, the applicants cannot be enlarged on bail, notwithstanding the fact that the Court arrives at a finding that there has been a delay in the conclusion of the trial, in view of the restrictions imposed by subsection (8) of section 5-A of the aforesaid Act. Section 497(1), Cr.P.C. Provides:-- "497.--- (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years."
' Section 5-A(8) of the aforesaid Act further provides that:-- "5-A(8).--- 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."
' No doubt, the analogy drawn by the learned Advocate-General between the provisions of section 497(1), Cr.P.C. And section 5-A(8) of Suppression of Terrorist Activities (Special Courts) Act, 1975 appears to be correct, and as is provided by the said subsection, an accused person is not to be released on bail if there appear to be reasonable grounds for believing that he has been guilty of a scheduled offence. The expression "scheduled offence" has been defined in section 2 of the said Act to mean as "an offence specified in the schedule". The question raised by the learned Advocate-General was also examined by the Supreme Court in the case of Syed Qaim Ali Shah and it was unequivocally held that the provisions of the Code of Criminal Procedure which have not been expressly excluded by the provisions of the Suppression of Terrorist Activities (Special Courts)
Act, 1975 will be applicable to the extent that they have been left unaffected. Upon this principle the Honourable Supreme Court came to a conclusion that since the provisions of section 497 as incorporated in the provisos thereto were independent provisions not affected by restrictions placed by subsection (8) of section 5-A of the said Act, bail could be granted to an accused under the third proviso to section 497(1), notwithstanding the said restrictions. In this judgment, some of the cases wherein bail was granted to the accused on the ground of delay simpliciter have been referred to by the Supreme Court. Reference in this regard was made to the cases of Riasat All v.
Ghulam Muhammad PLD 1968 SC 353, Ahrar Muhammad v. The State PLD 1974 SC 224 and Malik Ghulam Jilani v. Station House Officer PLD 1975 Lah.
210. In the case of Ahrar Muhammad v. The State, wherein the case of Riasat All v. Ghulam Muhammad was also noticed by the Supreme Court, it was held that although a mere ground of delay would not be sufficient for grant of bail to an accused, but in appropriate cases where delay in the conclusion of the trial tantamounts to abuse of the process of law, bail can be granted to an accused on such ground alone. The observations made by the Supreme Court in this regard which appear at page 227 of the report are reproduced as follows:- "It is true that the view of this Court has consistently been that mere delay by itself is not a sufficient ground for the granting of bail, but, at the same time, it cannot be said that inordinate or unjustified delay in the prosecution of a case amounting to an abuse of process of law can never be taken into account as relevant ground for the granting of bail. If the delay is so inordinate or so scandalous or so shocking as to amount clearly to an abuse of the process of law there can be no reason either in principle or in law as to why it cannot be treated as a sufficient ground for the granting of bail. If such delay can be sufficient for quashing a criminal proceeding, then it can also be an equally good ground for the granting of bail."
' In the case of Abdul Hafeez Pirzada v. The State 1987 P Cr. L J 2415, which was decided by a Division Bench of this Court, although notice was taken of the restrictions placed by subsection (8) in respect of grant of bail, nevertheless bail was granted to the accused on the ground that, the question, whether there were reasonable grounds to believe that the accused were guilty of scheduled offence, required further enquiry. It, therefore, clearly follows that bail can be granted to the accused notwithstanding the restrictions imposed by subsection (8) or section 5-A of the Suppression of Terrorist Activities (Special Courts) Act. This Court, in any case, enjoys vast powers by virtue of section 561-A, Cr.P.C. To pass orders which may be necessary to prevent abuse of the process of the law or otherwise to secure the ends of justice. The grant of bail to the accused on the ground of delay would also be dependent upon the peculiar circumstances of the case itself. In that, the Court would also be at liberty to consider the merits of the prosecution case. The Court would examine the material available in the hands of the prosecution to determine whether sufficient grounds exist to connect the accused with the alleged crime. In this regard, it may be pointed out that although the merits of the case in the bail application of applicant All Bux Abbasi have not been examined by us as no such ground has been raised before us by Mr. Ibrahim Memon, learned counsel for the said applicant, but Mr. Aiti7a7 Ahsan has argued the case of applicant Asif All Zardari on merits as well. In this regard, he has raised a two-fold plea before us: firstly, according to the learned . Counsel, Form 16 in Schedule VIII to the Arms Rules, 1924 was amended in the Province of Sindh and according to clause (4), an arms licence after its expiry may be renewed after three months thereof but before the lapse of twenty-four months. Consequently, according to the learned counsel, even if the licence held by applicant Asif All Zardari had expired on 31-12-1989, the same could be renewed before the lapse of twenty-four months, and therefore, the said applicant did not commit any offence for which he is being tried. The second contention of Mr. Aitizaz Ahsan is that the Schedule to the Suppression of Terrorist Activities Act incorporates within itself only such offences under the West Pakistan Arms Ordinance, 1965 (W.P. Ordinance No,XX of 1965) which are punishable under section 8, 9 or 10 of the said Ordinance. Since applicant Asif Ali Zardari has been charged with commission of offences falling under sections 13(f) and 16(b) the same are not triable by the Special Court. Although the learned Advocate-General has no answer to the plea that an offence under section 16(b) of West Pakistan Arms Ordinance, 1965 (now referred to as Pakistan Arms Act, 1965) is not a Schedule offence, as the same has not been incorporated in the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, but the learned Advocate-General has argued that since section 10 of the Arms Act has been included in the said Schedule and the said section is not a punishing section and the offence if any, under the said section is punishable under section 13(f) of the said Act, therefore, the omission, if any, made by the Legislature appears to be unintentional and the same can be supplied by the Court. As regards the amendment introduced in Form 16 in the Province of Sindh the learned Advocate- General has invited our attention to section 42 of the Arms Act which provides that a licence issued under the Arms Rules, 1924, "unless previously cancelled, be in force for such period and expire on such day as, subject to any restrictions or limitations provided in the appropriate form, the authority granting it may enter thereon". Section 42 is subject to a proviso; however, we are not concerned with the same in the present case. Our attention has been invited to Form-16 incorporated in the licence itself, which, according to the learned Advocate-General, was applicable in the present case. The said Form indicates that only a grace period of six months was available to the applicant before which the said licence was required to be renewed after its expiry.
If any licence is not so renewed as provided by Form-16, then the same shall on the expiry of the said period stand cancelled. Before we advert to the respective arguments of the learned counsel, it may be pointed out that both the Federal Government as well as the Provincial Governments have been authorised to issue licences under the Pakistan Arms Act, 1965. In case of certain arms, the details in respect of which need not be referred to, both the Federal and the Provincial Governments enjoy concurrent powers to issue licences for holding arms. The contention of the learned Advocate-General in the present case is that the licence to applicant Asif Ali Zardari had been issued by the Federal Government and therefore, the amendment, if any, made by the Sindh Provincial Legislature is not applicable-in the present case.
25. Although it would not be proper for us to discuss in details the merits of the prosecution case which is still sub judice before the learned trial Court, and any observation made by us in this regard can prejudice the case of either of the parties before us, we are nevertheless conscious of the fact that the Court must consider the case put up against the accused by the prosecution to determine whether there are reasonable grounds to disclose the commission of the alleged offence and as pointed out earlier, the Court would examine the data made available in the case to determine whether such reasonable grounds do exist. The Court has, therefore, first to determine whether from the material available with the prosecution, the latter has succeeded in establishing a prima facie case against the accused. In this regard, it may be pointed out that the question, whether a grace period of twenty-four months was available to the accused as indicated by the Sindh Amendment, to which we have referred earlier in this order, or whether only six months' period was available, is not for us to answer in this case. As we have pointed out earlier, it would only be appropriate for the trial Court to determine this question and then give its finding accordingly. So far as the question, whether the prosecution has been able to establish a prima facie case in this regard, in our view, the answer can be found in subsection (2) of section 497, Cr.P.C. Which provides that in the case "there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such enquiry, be released on bail.......... "
Consequently the very controversy over the question, whether there was still a grace period available to the accused within which the licence held by him could be renewed, brings the case within the purview of subsection (2) of section 497, Cr.P.C. Because determination of the said question would ultimately determine the guilt or innocence of the accused. The second question raised by Mr. Aitiza7 Ahsan, however, appears to be more formidable. Subsection (1) of section 10 of the Pakistan Arms Act provides that:-- "Any person possessing arms, ammunition, military stores the possession whereof, has, in consequence of the cancellation or expiry of a licence or of an exemption or the death of the licensee or otherwise, become unlawful, shall without unnecessary delay deposit the same either with the officer-in-charge of the nearest police station or, at his option and subject to such conditions as Government may by rules prescribe, with a licensed dealer."
' Section 10 is also subject to a proviso but as the same is not relevant, it is not necessary to refer to the same. Since in the present case, the case of the prosecution is that after the expiry of the licence applicant Asif Ali Zardari had failed to renew the same, his failure to deposit the licence either at the nearest police station or with a licensed dealer would constitute an offence punishable under section 13(f) of the said Act. According to clause (f) of section 13, any person who fails to deposit arms, ammunition or military stores as required by section 10 shall be liable to imprisonment for a term, not less than three years. As has been pointed out earlier, although offences under section 8, 9 or 10 of the Arms Act have been made "scheduled offences" under the Suppression of the Terrorist Activities (Special Courts) Act, but offences under any of the clauses of section 13 have not been made so punishable by including them in the Schedule. The question whether casus omissus can be supplied by the Court, was considered by a Division Bench of the High Court of Dacca in Manzoor Hossain v. The State PLD 1965 Dacca 348. In this case, no consequential amendment was made in the Criminal Procedure Code by way of including a newly-added section in Schedule II of the said Code and thus indicating procedure to be applicable for trial of offences punishable under a newly-added section 153-B in the Pakistan Penal Code. It was observed by the Division Bench as under:-- "It will thus be seen that the cases that are found on casus omissus have no reference whatsoever to a case of the present kind where the Legislature has wholly omitted to provide for procedure governing the investigation prosecution, and trial of an offence under section 153-B of the Penal Code. It is entirely within the jurisdiction of the Legislature to prescribe the procedure to be followed in a case like the present one. In the absence of any such act on the part of the Legislature, the High Court cannot lay down any such procedure. The primary and sole duty of a Court of law is to interpret and not to legislate. The decisions on casus omissus deal with cases where the Courts have intervened to give effect to the intention of the Legislature by supplying an obvious omission or to throw light in matters where the Legislature has not used clear and unambiguous language although the intention appears to be clear with reference to the context of the legislation."
' Although we find that the view taken by the High Court of Dacca in the above case fully lends support to the contention raised by Mr. Aitizaz Ahsan that omission cannot be supplied by the Court, nevertheless, as has already been pointed out, we would refrain from giving our own finding on the issue for the reason that the matter is still sub judice before the learned trial Court. Suffice it to say that, if the contention raised by Mr. Aitizaz Ahsan is accepted by the learned trial Court, then applicant Asif Ali Zardari would not be guilty of any scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, even if he might have committed an offence under the Pakistan Arms Act. Mr. Aitizaz Ahsan has pointed out that the offences allegedly committed by the applicant only fall within the ambit of the Pakistan Arms Act, and the same, according to the Second Schedule to the Criminal Procedure Code, would be bailable.
26. Learned Advocate-General has argued that we should refrain from expressing ourselves on the merit of the case of applicant Asif Ali Zardari, because the question had not been raised by the applicant in his bail application moved before the learned trial Court. The learned Advocate- General has referred in this regard to the practice of this Court that new ground is not permitted to be urged before the High Court if the same had not been taken earlier before the trial Court.
Although, there is no express provision of law under which the applicant is required to raise all the grounds before the trial Court which he subsequently urges before the High Court, however, this is how the High Courts, have regulated their own procedure. In our view, the question will depend upon the facts of each case. It may, however, be pointed out that the question urged before us is so patent and apparent that it is not possible for us to overlook the same. We are, however, of the view that in the present case although the questions raised by Mr. Aitiza7 Ahsan in regard to merits of the prosecution case are ultimately to be determined by the learned trial Court and we at this stage would prefer refraining from expressing ourselves on the merits of the said pleas, but nevertheless in view of the questions raised, we are clearly of the view that the case of the applicant Asif All Zardari also requires further inquiry.
27. In the end, it may be pointed out that when the above order was about to be announced by us, Ordinance XXII of 1992 was promulgated on the 13th of December, 1992 which amended the Suppression of Terrorist Activities (Special Courts) Act, 1975 with immediate effect. Subsection (8) of section 5-A of the said Ordinance was substituted for the original subsection (8) vide section 2 of the amending Ordinance as follows:- "(8) Notwithstanding anything contained in sections 439, 491, 496, 497, 498, 498-A and 561-A of the Code, no Court other than the Special Court shall have the power or jurisdiction to grant bail to any accused person: ' Provided that the Special Court shall not release the accused on bail, if there appear reasonable wounds for believing that he has been guilty of the offence for which he has been charged; 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."; and ' A new subsection (8-A) was also added to section 5-A which reads as follows:- "(8-A) Notwithstanding anything contained in the Code or any other law for the time being in force or any judgment. Of any Court, the provisions of subsection (8) shall apply with immediate effect to bail applications and proceedings in respect thereof pending in any Court immediately before coming into force of this Ordinance."
' As is evident from the said amendments, it became doubtful whether this Court was left with jurisdiction to grant bail to the applicants in the present case. Consequently, on 15-12-1992 when orders on the said bail applications were to be announced, the case was adjourned for rehearing of arguments for determination of the question, whether bail could still be granted to the applicants notwithstanding the said amendments. Subsequently, notice was also ordered to be issued to the learned Attorney-General and the Federal Government as learned counsel for the applicants proposed to challenge the validity of Ordinance XXII of 1992 itself. However, when the arguments were still being heard learned Advocate-General has placed before us a copy of Notification issued by the Federal Government which shows that Suppression of Terrorist Activities (Special Courts) (Amendment Act, 1993 (Act I of 1993) has been promulgated on 27-1-1993 which further amends the Suppression of Terrorist Activities (Special Courts) Act, 1975. According to the said amendment, for the newly-added subsection (8) a new. Subsection (8) has been substituted as follows:- "(8) 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 ad accused person be so released unless the prosecution has been given notice to show cause why he should not be so released."
' Besides the above amendment, Ordinance XXII of 1992 which had earlier amended section 5-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975 has been repealed. The effect of the above amendments clearly has been that the amendments which came into force after promulgation of Ordinance XXII of 1992 have been withdrawn. The restrictions on the power of this Court to grant bail in the present case, if any, therefore, appear to have been withdrawn.
Consequently, thd doubt has now been removed and this Court has power to grant bail to the applicants.
28. For the aforesaid reasons, bail is granted to applicants Asif All Zardari and All Bux Abbasi in the sum of Rs,5,00,000 (Rupees five lac) each, with one surety in the like amount to the satisfaction of the learned trial Court.
' HAZIQUL MAIM, J---The applicant Asif Ali Zardari in Criminal Bail Application No,809 of 1990 is charged with offences under sections 13(f) and 16(b) of the Arms Act, 1965 and the applicant Ali Bux Abbasi in Criminal Bail Application No,1290 of 1992 is charged with offences under sections 365-A and 120-B of Pakistan Penal Code. Criminal Bail Application No,809 of 1990 reveals that the complainant Muzaffar Ali of Police Station Shahra-e-Faisal, while patrolling, arrested two persons, namely, Muhammad Akbar Samejo son of Muhammad Ibrahim and Muhammad Razzaq son of Ghulam Muhammad Awan, in a Toyota Jeep and recovered from the former two MP 2/A-2, in the name of the applicant Asif All Zardari, while recovered from the latter a Klashnikov with cartridges and a rifle with magazine containing cartridges in the name of Kazi Abid. Both the said two persons could not produce licences for the said weapons. F.LRs, under section 13-B were lodged against them. They were tried by the Special Court-II (Suppression of Terrorists Activities) Karachi and were convicted, but ultimately acquitted by the High Court of Sindh at Karachi.
' However, on the next day of their arrest i,e. 26-8-1990, the said S.H.O. Muzaffar All Khawar, lodged another F.I.R. Against the applicant Asif Ali Zardari stating that licences in respect of both the said arms recovered from his employee Muhammad Akbar Samejo were in the name of the former, who on their expiry on 31-12-1991, had failed to surrender/deposit them with a police station or with authorised licensed arms dealer. This was in contravention of section 10 of Arms Act as such he was liable to be convicted of offences under sections 13(f) and 16(b) of the Arms Act.
' The other Criminal Bail Application No,290 of 1992 records that an F.I.R. Was lodged by one Syed Murtaza Hussain Bukhari under sections 365-A, 395 and 109, P.P.C. Stating that in the third week of August, 1987, he had come down to Karachi from London with the programme to establish an institution for mentally handicapped children at Islamabad. He had brought with him, 175 lacs in foreign exchange through B.C.C.I. Karachi and was staying at Faran Hotel, Karachi. He had known one Ghulam Hussain Khan Unnar, M.PA., Larkana, from London. He alongwith Atif and Noor Abbasi came to meet him at his said Hotel and insisted that he should move to Taj Mehal Hotel. He shifted to said Taj Mehal Hotel from where on 17-8-1989 Atif kidnapped him on the pretext of arranging for his meeting at Bilawal House, but he was wrongfully confined in a darkroom in the Defence Housing Society. On 26-9:1989, the said Atif forced him to write a letter addressed to Umiar for holding him as a decoy. The next day, the said Atif and the applicant wrapped a remote control bomb on his left leg. Atif, Unnar, Dr. Babar Jamali, Noor Abbasi then took him to B.C.C.I. Bank. They threatened him that if he tried to make noise, they will explode the remote control bomb fastened on his person. There he was asked to withdraw money from the Bank which he did. Rs,50,00,000 (Rupees fifty lacs) was taken by the said Unnar and Rs,5,00,000 (Rupees five lacs) by the applicant, who also got a Pay Order for Rs,45,00,000 (Rupees forty-five lacs) from him. Unlike Asif Ali. Zardari, who moved no earlier application, All Bux Abbasi moved a bail application before the Special Court II (Suppression of Terrorists Activities), Karachi, which was rejected vide order dated 1-4-1992, firstly on the ground that the case was ripe for decision on merit and only Investigation Officer remains to be examined, and secondly, on the ground that although the accused had remained under detention as under-trial prisoner for more than one year, he was not entitled to the benefit of third proviso of section 497(1), Cr.P.C. In view of the decision in Muhammad Aslam v. The State 1992 SCMR 600 that the provisions of first and third proviso of section 497(1), Cr:P.C. May not be treated as available to the Special Court or even High Court as there was a clear bar under subsection (8) of section 5-A of the Suppression of Terrorists Activities Act, 1975. The applicant Ali Bux thereafter filed the Bail Application No,290 of 1992, in this Court, which was also dismissed vide order dated 1-6- 1992. Aggrieved by this order, he challenged it before the Honourable Supreme Court of Pakistan, which directed the High Court of Sindh to decide his bail application afresh in the light of the judgment of the Supreme Court in State v. Qaim Ali Shah, reported in 1992 S CM R 2310. In the said case it was held, inter alia, that the High Court during the pendency of trial of an accused person under the Suppression of Terrorists Activities (Special Court) Act, 1975, can press into service section 497 of the Code of Criminal Procedure with its provisos 1 and 3 and grant bail to the accused. This judgment was delivered by the Supreme Court of Pakistan on the 11th August, 1992.
' It is pertinent to note here that on the 16th November, 1992, the President of Pakistan issued Ordinance No,XV of 1992 whereby provisos 3 and 4 of subsection (1) of section 497 of the Code of Criminal Procedure, 1898 were omitted which gave rise to common questions of law in both the bail applicatons and the following questions were formulated to determine the effect of the amendment:-- "(1) Whether Ordinance No,15 of 1992, amending section 497, Cr.P.C. With immediate effect, operates retrospectively;
(2) If yes, whether it affects proceedings or cases already pending before the Court before coming into force of Ordinance 15 of 1992;
(3) Whether any vested right has accrued to the applicant of which he cannot be divested, notwithstanding the amendment;
(4) Notwithstanding the amendment, whether bail can be granted by the Court on the ground of delay in conclusion of the trial; and
(5) Whether in view of the facts and circumstances of the case, the applicant is entitled to bail, notwithstanding the amendment."
' At the outset it may be stated here that repealed provisos 3 and 4 of section 497(1) were of great significance from the point of view of bail of the applicants, as their said applications for bail were pending before this Court on the date of amendment and they could have been granted bail in terms of provisos 3 and 4 if their bail applications had been taken up and decided earlier by the High Court in the light of the decision of the Supreme Court of Pakistan in Qaim. Ali Shah's case (supra). It would, therefore, be advantegeous to reproduce section 497(1) with its repealed provisos 3 and 4 and also subsection (8) of section 5-A of the Suppression of Terrorists Activities (Special Courts) 1975 which places embargo on the power of the Court to grant bail as follows:-- "497. When bail may be taken in case of non-bail able offence.-- When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: ' Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: ' Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released: ' Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail--
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded."
' Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal."
(5-A) ................................................................................................
(8) 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."
' According to Mr. Aitizaz Ahsan, learned counsel for Asif Ali Zardari, the latter was technically arrested on 6-11-1991 (which is disputed by Mr. Aftab Ahmed Akhund, A.-G.) as he was already in judicial lock-up in other cases whereas, admittedly, Ali Bux Abbasi was arrested in the third week of April, 1990, after registration of F.I.R. Dated 15-4-1990.
' Since Asif Ali Zardari was charged under sections 13(f) and 16(b) of the Arms Act which is not an offence punishable with death, therefore, it was argued that clause (a) of the said proviso 3 of section 497(1), Cr.P.C. Was being invoked in his bail application, whereas All Bux Abbasi being charged under sections 365-A, 395 and 109, P.P.C. Was punishable with death, clause (b) thereof was being invoked in his bail application. It may further be stated that before the promulgation of the said President's Ordinance No,15 of 1992, dated 16-11-1992, the former had filed his bail application on 10-11-1992 and the latter had filed his criminal bail application on 27-4-1992.
' With this background it would be convenient to take up the-first three propositions together.
' It was first argued by Mr. Aitizaz Ahsan, learned counsel for Asif Ali Zardari that the Ordinance, speaks nowhere that it is retroactive in effect, rather under section 1(2) thereof, it came into force at once, from its date viz. 16-11-1992. Secondly, in any case, a valuable right to apply for bail under proviso 3 had accrued in favour of the applicant which right cannot be taken away. It was conceded by him that the right to apply for bail may not be equated with a vested right in relation thereto, as it was conditioned by the discretion of the Court but the proceedings for grant of bail, pending the bail application cannot be affected. Mr. Aftab Ahmed Akhund, learned Advocate- General on the other hand, contended that section 497(1) with its provisos 3 and 4 relates to procedural law and the effect of repeal of the said provisos by the Ordinance XV of 1992 would be retrospective in effect. The following books and case-law were cited at the Bar for and against the said propositions:-- "The Construction of Statutes, by Easl T. Crawford 1940 Edition pages 569, 581-582; Craies on Statutes (seventh Edition) page 411; The Laws of England, By Halsbury, Third Edition Vol. 36, page 437; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 1987; Saeed Ahmed v. State PLD 1964 SC 266; I.T.O. v. Suleman Bhai Jiwa PLD 1970 SC 82; Rafiuddin v. Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 263; The State v. Molvi Jamil and others PLD 1965 SC 681 and Nazir Hussain v. Ziaul Haq 1983 SCMR 72."
Discussing statutes pertaining to procedure and legal remedies, generally, Easl T. Crawford in his book "The Construction of Statutes" (1940) Edition) page 581 states that "As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation".
' Halsbury in 'The Laws of England', Third Edition, Volume 36, page 423, under the heading of 'presumption against retrospection' states that. 'The general rule is that all statutes, other than those which are merely declaratory, or which relate only to matters of procedure or of evidence, are prima facie prospective and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature'.
' However, our Supreme Court in State v. Muhammad Jamil PLD 1965 SC 681, dealt with the question of retrospectivity in relation to procedural legislation in the following words:-- ".... If a statute deals merely with the procedure in an action, and does not affect the rights, of the parties, it will be held to apply prima facie to all actions, pending as well as future. It is only if it be more than a mere matter of procedure, that is, if it touches a right in existence at the passing of the new Act, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act."
' Again in Adnan Afzal v. Capt. Sher Afzal PLD 1965 SC 187, the Supreme Court while examining the same question, inter alia, held that where any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a U procedural statute, favour an interpretation giving retrospective effect to the statute".
' Having dealt generally with the procedural law and its being retrospective or prospective in different situations, let us now examine the effect of amendment in procedural statutes. Bindra in his book 'Interpretation of Statutes', 7th Edition has referred at page 701 to Sothland's book Statutory Construction" (3rd Edition, Vol.1 at pp.416-417 as under:-- "Provisions added by the amendment that affect substantive rights will not be construed to apply to transactions and events completed prior to its enactment unless the legislature has expressed its intent so that effect or such intent is clearly implied by the language of the amendment or by circumstances surrounding its enactment.
' In accordance with the rule applicable to repealing Acts, the general rule against the retrospective construction of statutes does not apply to these provisions of the original Act repealed by the amendment, whether affecting substantive or procedural law. In the absence of a saving clause or statute, or some other clear indication that the legislative intent is to the contrary, all rights dependent on the repealed provisions of the original Act which had not vested or been prosecuted to completion prior to the enactment of the amendment are destroyed."
' Lastly, reference may be made to the case of Rafiuddin v. Chief Settlement Commissioner, PLD 1971 SC 252 where it was held:-- "It is well-settled that when the law is altered during the pendency of an action, the rights of parties are decided according to the law as it existed when the action was begun and not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere rule of proceedings, or if it has been applied retrospectively to pending proceedings. This rule, as stated in Craies on Statute Law, Sixth Edition, page 400 is as follows:-- ' It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to right of action."
' Reverting now to the Ordinance XV of 1992 in the first instance, there is no controversy that the Code of Criminal Procedure is a procedural law so also the Ordinance XV of 1992 which seeks to amend the former. As to whether it is retrospective or not, suffice to state that the expression that 'It shall come into force at once' and that 'the third and fourth provisos shall be omitted' leave no doubt that it operates prospectively. The golden rule of interpretation is that the words of a statute must be given their ordinary and normal meaning. These words speak for themselves and are free from ambiguity and simply because the Ordinance XV of 1992 relates to procedural law, it cannot be said that it would be retrospective in operation. There is nothing to suggest either expressly or by necessary implication that the date of commencement of the Ordinance was earlier than its enactment or the accused's right to apply for bail under third proviso stood altered retrospectively.
' Admittedly both the bail applications were pending when on 16-11-1992, the said Ordinance XV of 1992 was promulgated. The police correspondence placed on record by Mr. Aitizaz Ahsan reveals that the applicant Asif Ali Zardari was treated as arrested on 6-11-1991 in this case while he was already in judicial lock-up in other cases. Mr. Aftab Ahmed Akhund, learned Advocate-General for Sindh disputed this position. According to him, the date of formal declaration of arrest of Asif Ali Zardari was 16-11-1991 when a challan in respect of the alleged offence was presented in the said Special Court-II (Suppression of Terrorist Activities), Karachi. Since his application for bail was filed on 10-11-1992, it was contended by him that it was premature as Asif Ali Zardari had not completed one year in detention in terms of clause (a) of proviso 3 to section 497, Cr.P.C. Now so far as Ali Bux Abbasi is concerned, there is no dispute that he was arrested on 17-4-1990 and he also remained under detention for a continuous period exceeding two years without conclusion of the trial.
' In order to proceed further it is to be seen whether despite the amending Ordinance XV of 1992 any vested right had accrued to the applicant. According to Ballentine's Law Dictionery, Third Edition, Vested Right means among others as follows:- "Vested Right.-- An immediate fixed right of present or future enjoyment; an immediate right of present enjoyment or a present fixed right of future enjoyment; A right in the form of a title, legal or equitable, to the present or future enforcement of a demand or a legal exception from demand made by another."
' In Nazir Hussain v. Ziaul Haq PLD 1983 SC 72, the Supreme Court of Pakistan, inter alia, examined the right of an accused to apply for bail on the ground of delay in terms of third proviso (fourth proviso was not in the field) to subsection (1) of section 497, Cr.P.C. It was held:- "Another argument advanced by the learned counsel; namely that even if it is mandatory under the third proviso to section 497(1), Cr.P.C. For the accused to complete two years continuous period of detention before seeking bail on ground of delay, residuary power with the Courts concerned to grant bail on so-called general delay even if it is less than the specified period, remains intact, is also without any force. The legislative intervention has consolidated and condified the law which earlier prevailed with regard to the grant of bail on ground of delay in cases specified in third proviso to section 497, Cr.P.C. The matter is also obvious that no discussion is necessary in this behalf. In the cases primarily covered by the third proviso, bail cannot be granted on ground of delay unless the conditions specified thereunder, as discussed and explained above, are satisfied."
' And further "The ground of delay for grant of bail in cases falling within the prohibition contained in subsection
(1) of section 497, Cr.P.C. Before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That is why the Legislature intervened and the law was made more certain. One of the changes effected in the statute from the previous practice in the exercise of discretion was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion."
The principle as laid down in Nazir Hussain's case is that once conditions under section 497(1) with its provisos have been fulfilled, it would not be a matter of discretion with the Court but a matter of right for the accused to get bail. This right would be in the nature of a substantive or vested right which would accrue to an accused, when upon his continued detention exceeding one year or two years as the case may be, pending his trial, he becomes entitled to apply for bail. The right to apply for bail as well as the right to get bail as aforesaid cannot be taken away retrospectively unless there is a clear intention found in the amending statute itself.
' The first three questions having been replied the fourth and fifth questions being interlinked may now be taken together. It is pertinent to note that even when the said provisos 3 and 4 to section 497, Cr.P.C. Were not in the field, the superior Courts did consider delay as a ground for grant of bail. Reference may first be made to Riasat Ali v. Ghulam Muhammad PLD 1968 SC 353 in which it was held: "Inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The prosecution is expected to proceed with its case with all despatch eliminating every avoidable delay in order to bring it to a close and thus to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other."
' In Manzoor Khan v. Kamir reported in 1972 S CM R 207, the Supreme Court of Pakistan observed that "It is not the intention of the law to keep under-trial prisoners, including those charged with capital offences without trial for inordinately long periods without satisfactory explanation or reason to justify that action." Similarly in Ahrar Muhammad v. State PLD 1974 SC 224, the Supreme Court held:-- "It is true that the view of the Supreme Court has consistently been that mere delay by itself is not a sufficient ground for the granting of bail; but, at the same time it cannot be said that inordinate or unjustified delay in the prosecution of the case amounting to an abuse of process of law can never be taken into account as relevant ground for the granting of bail."
' Reference may also be made to the case of Zaheer Illahi v. State PLD 1977 SC 273 at 311 as follows:- "Section 497 of the Code provides that a person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment. It does not mean that the Court has first to convict and then to refuse bail. In either case, the Court has to take a prima facie view of the guilt or innocence of the accused. Under section 497 of the Code bail is a right which may be denied only on the conditions contained in that section."
What emerges from the above two decisions is that even prior to the introduction of provisos 3 and 4 to section 497(1) where inordinate or unjustified delay in the prosecution of a case amounted to an abuse of process of law, it was a valid ground for grant of bail and that a bail was a right which could not be denied except as provided in the section.
' Reverting now to the two bail applications in question vis-a-vis Act XV of 1975, it will be useful to refer to a recent judgment of State v. Qaim Ali Shah 1992 SCMR 2192, in which the Supreme Court while examining the question of delay in disposal of appeals either on account of delaying tactics on the part of prosecuting agency or because of heavy workload of the Court with special reference to the Suppression of Terrorists Activities (Special Courts) Act (XV of 1975) had held that although the High Court cannot release a convict on bail under section 426, Cr.P.C. In view of the bar imposed by section 7(1) of the Act, yet the High Court in such cases being repulsive and unconscionable may press into service section 561-A, Cr.P.C. For purposes of bail. What may not be lost sight of is that in dealing with even convicts in appeal the Supreme Court took a serious view of inordinate delay. Coming back to section 497, Cr.P.C. There is no controversy that the conditions imposed by the section itself have to be satisfied before an order for grant of bail is to be made.
These conditions having been once satisfied in view of decision in Nazir Hussain's case (supra) the accused would as a 'matter of right be entitled to get bail. Admittedly Asif Ali Zardari is not guilty of an offence punishable with death or imprisonment for ten years within the meaning of section 497(1) of the Code of Criminal Procedure. He has also been detained for more than a continuous period exceeding one year and his trial has not been concluded. He was a licensee of the Klashnikov in question, but it is alleged that upon its expiry he failed to apply for its renewal. I agree with Mr. Aitizaz Ahsan that he cannot be equated with a Terrorist carrying Klashnikov Z without licence. It was also urged by him that within the grace period, he had applied for renewal of licence. This position is disputed by the learned Advocate-General. What, however, is pertinent to note is that neither section 13(1) nor section 16(b) of the Arms Act, 1%5, under which he has been charged, have been included in Schedule to Suppression of Terrorists Activities (Special Courts)
Act, 1975 so as to give jurisdiction to the Special Court to proceed against him. According to learned Advocate-General, the accused had committed offence under section 10 of the Arms Act, 1965, which was punishable under section 13(f) thereof, but it was inadverten4 omitted to be included in the Schedule and in the circumstances section 13(f) of the Arms Act may be deemed to be included in the Schedule. Mr. Aitizaz Ahsan in reply referred to the decision of a Division Bench of Dacca High Court in Manzur Hussain v. State PLD 1965 Dacca 348, in which the legiilature wholly omitted to provide for procedure governing investigation, prosecution and trial of offence under section 153-B of the Penal Code. The learned Judges while quashing the proceedings held that cases found on `Carus Omissus' may be given effect to where the legislature has not used clear and unambigous language although the intention is clear but will not cover those cases where the Legislation has failed to provide for a machinary to bring the offender in respect of the offence to book. Indeed it is not the function of a Court to legislate or to fill in lacuna or gap found in legislation but to interpret law.
' It is also pertinent to note that the charge against Asif Ali Zardari was that he had been keeping arms the licence of which had already been expired. This fact was known to the prosecution from the date of lodging of F.I.R. Viz. 26-8-1990 and prima facie no further inquiry was necessary. There is no satisfactory explanation as to why prosecution had failed to complete the investigation and forward to the Special Court a report under section 173, Cr.P.C. Within fourteen days read with section 5 of the Suppression of Terrorists Activities (Special Courts) Act, 1975 and why the challan against him was put up after about 15 months of the alleged offence. In fact the case against him has not proceeded as yet.
' There indeed was inordinate delay on the part of the prosecution. An accused cannot be left at the mercy of prosecution for delayed prosecution so as to be deprived of right to apply for bail under clause (1) of proviso 3 to section 497, Cr.P.C. In the circumstances, date of submission of the challan in the trial Court cannot be accepted as the date of arrest of the applicant. I am, therefore, of the view that Asif Ali Zardari had remained under detention for a continuous period of exceeding one year.
' Now so far as Ali Bux Abbasi is concerned, there is no dispute that he was arrested on 17th April, 1990. He was charged under sections 35-A and 120-B of Pakistan Penal Code for offences punishable with death but he has also remained under detention for a continuous period exceeding two years and seven months without conclusion of the trial. His application for bail before the Special Court II (Suppression of Terrorists Activities) was dismissed in view of earlier decision of Supreme Court of Pakistan reported in 1991 SC MR 600 to the effect that the First and Third provisos to section 497(1) were not available to the Special Court or even to the High Court. It was also observed by the learned Special Judge that the entire case was almost ripe for decision on merit and only the investigation officer had remained to be examined, hence it would not be appropriate to dispose of the bail application. Mr. Muhammad Ibrahim Memon, learned counsel for Ali Bux Abbasi, stated before us which was not disputed by the learned Advocate-General that his case is still pending before the said Special Court. He has also placed before us certified copies of order sheets from the Court of the learned Special Judge in order to show that the delay in the proceedings before him was not occasioned due to the fault of the said accused. It is also not the case of the prosecution that the applicants Asif Ali Zardari and Ali Bux Abbasi are terrorists or hardened criminals within the meaning of proviso 4 to section 497(1) of Cr.P.C. As no such plea was raised by the learned Advocate-General or Deputy Attorney-General at any stage of the proceedings.
' In view of the legal position enumerated above, both the applicants Asif Ali Zardari and Ali Bux Abbasi are entitled to bail. I am told by my learned brothers Mamoon Kazi, and Aslam Arain, JJ.
That they are also of the same view. As to the terms of grant of bail to the applicants, I fully agree with my learned brothers.
' While parting with this matter it may be placed on record that on 15-12-1992 when both the applications were fixed for orders learned counsel for the parties informed us of the promulgation of Ordinance XXII of 1992 dated 13-12-1992 which purported to substitute subsection (8) of section 5-A and introduced new subsection (8-A) thereto to the Suppression of Terrorists Activities (Special Courts) Act, 1975 in view of which the legal position as to the grant of bail to the applicants required re-examination. Learned A.-G. And D.A.-G. Held the view that by virtue of the said amendment no Court including the superior Courts shall have jurisdiction to grant bail, which position was disputed by learned counsel for applicants, according to whom when the High Court has power to hear and grant appeal under the said Act, it shall always have power to grant bail.
Further, and in any case the power of the superior Courts to grant bail cannot be taken away by any piece of legislation. While these contentions were in offing we were told that the Government intends to withdraw or amend the said Notification, for which reason by consent of the parties adjournments were granted from time to time. Finally by Act 1 of 1993 dated 27-1-1993, the Ordinance XXII was repealed with immediate effect and the legal position as regards grant of bail remained the same as it was prior to the promulgation of Ordinance XXII of 1992.