' This order shall dispose of two bail applications, one moved by Muhammad Yaqoob accused (Crl.Misc.4188-B of 1992) and the other by Muhammad Saeed accused (Crl.Misc. 4403-B of 1992) as also an application moved by Muhammad Usman Ghani complainant (Cr1. Misc.4918-CB/92) for the cancellation of the bail of Sh.Muhammad Yousuf accused granted to him by this Court on 1-7- 1992 in Crl.Misc. 2311-B of 1992, all arising out of case : F.I.R.No,692 registered at Police Station Model Town, Lahore under sections 302, 324, 148/149 P.P.C. On 5-11-1991 against Muhammad Yousuf and his co-accused.
2. The brief facts of the case are that on 5-11-1991 at about 1-30 a.m when both the parties were present at the `dera' of Safdar Ali, a Councillor of Jewana (a locality of Lahore Town) in order to settle a matrimonial dispute arising out of the estrangement between the daughter of Muhammad Yaqoob accused with her husband Shahzad Ahmad son of Sh.Muhammad Iqbal P.W., there arose a controversy between them about the mode of `talaq' mentioned in the divorce deed {{URDU TEXT}} Muhammad Saeed accused thereupon hurled an abuse on Tariq lqbal (deceased) and exhorted his companions not to spare their opponents. Acting under his lalkara', Zafar Iqbal accused gave a slap on the face of Sh. Muhammad Iqbal P.W. And at the same time taking out a pistol, fired at Tariq Iqbal (deceased), hitting him on the right thigh. Sh. Muhammad Iqbal P.W. Tried to intervene but he was fired at by Muhammad Saeed co-accused as a result of which he suffered an injuty on the left side of abdomen. Meanwhile Muhammad Yaqoob accused also took out a pistol and fired at Tariq Iqbal (deceased), hitting him on his abdomen at two places. Muhammad Yousuf co- accused fired at Shahzad Ahmad P.W. Causing injuries on his lower belly and left knee. Tariq Iqbal accused then fired with his pistol at Tariq Iqbal (deceased) hitting him on the right ankle. Khalid accused gave a kick blow on the testicles of Shahzad Ahmad P.W. And Muhammad Saeed accused fired second shot at Shahzad Ahmad P.W., hitting him on the right thigh. Zafar accused went on raising lalkaras' and brandshing his pistol in the air. He fired two shots with a view to cause terror.
Nobody out of fear came to rescue the victims despite the fact that a large number of persons from the locality had gathered. The assailants then ran away, leaving behind their three motor cars on the spot. Tariq Iqbal, who was grievously injured, was removed by Muhammad Usman Ghani complainant to Sheikh Zaid Hospital but died on the way. The matter was reported to the police by Muhammad Usman Ghani complainant, in alleging the abovementioned facts.
3. Different accused have been applying for bail to the Court of Session as also to this Court and some of them have been granted bail and others have been refused. To be a little more precise, Tariq, Muhammad Yaqoob and Muhammad Khalid accused were granted bail by the Court of Session. The complainant moved this Court for the cancellation of their bail. Vide order, dated 30- 3-1992, the bail granted to Tariq accused by the Court of Session was not interfered with, while the bail order, dated 5-3-1992, granting bail to Muhammad Yaqub co-accused was recalled. Later, the complainant moved this Court for the cancellation of bail of Muhammad Khalid but vide order, dated 22-6-1992, his request was turned down and Muhammad Khalid accused continues to be on bail. Sh.Muhammad Yousuf accused applied for bail to this Court and his request was acceded to vide order, dated 1-7-1992. Through Criminal Misc.No,4918-CB/92 the complainant seeks the cancellation of his bail, mainly on the ground that in view of the provisions of section 5 of Act IX of 1992, the jurisdiction of this Court to grant bail to him stood completely barred. On the same ground the bail applications of Muhammad Yaqoob and Muhammad Saeed accused have been opposed.
4. I have heard the learned counsel for the parties, including the representative of the State, at sufficient length on the question of jurisdiction. In support of the application for the cancellation of bail of Sh. Muhammad Yousuf accused granted by this Court, vide its order, dated 1-7-1992, and in opposition of the aforesaid two bail applications, the learned counsel for Muhammad Usman Ghani petitioner (complainant) submits that under subsection (3) of section 3, subsection (5) of sections 5 and under section 11 of the Special Courts for Speedy Trials Ordinance, 1992, which came into force on 2-4-1992 and which has been replaced by Act IX of 1992, the jurisdiction of this Court stood completely barred so far as the bail matters in this case are concerned because it was transferred by the Federal Government for trial to the Special Court for Speedy Trial at Lahore on 9- 5-1992. He contends that neither Allied Bank of Pakistan's case (1991 SCM R 599) nor Qaim Ali Shah's case (1992 SCM R 2192) can be pressed into service because the former was governed by the Offences in Respect of Banks (Special Courts) Ordinance, 1984 and the latter was controlled by the Suppression of Terrorist Activities (Special Courts) Act, 1975 which contained provisions regarding bail somewhat different from those contained in the Special Courts for Speedy Trials Ordinance, 1992. Elaborating his contention, he submits that the words 'or by any other Court' figuring in section 5(6) of the 1984 Ordinance implied that the power of granting bail available to other Courts such as the High Court was not excluded. Similarly, according to him, section 5-A (8) of the 1975 Act used the same language 'or by any other Court' and section 7(1) thereof did not expressly include the provisions of sections 497 and section 561-A, Cr.P.C. And for that reason it was held in Qaim Ali Shah's case that the High Court in appropriate cases could grant bail to an accused who was facing trial in the Special Court for Suppression of Terrorist Activities but the position in the instant case, which was pending in the Special Court for Speedy Trial, was quite different because in the 1992 Ordinance, in section 11, the provisions of sections 497 and 561-A, Cr.P.C., besides certain other provisions of the Code, were, specifically excluded by means of non obstante clause and as such this Court had no jurisdiction to grant bail to Sh. Muhammad Yousuf accused and the order, passed by it on 1-7-1992, needs to be recalled. Likewise, according to him, it has no jurisdiction to grant bail to Muhammad Yaqub who has sought bail on insufficient medical grounds and to Muhammad Saeed accused on merits.
5. On the contrary, the learned counsel for Muhammad Saeed and Muhammad Yaqoob petitioners and Sh. Muhammad Yousaf respondent submits that the jurisdiction of this Court is not barred and it could grant bail to Sh. Muhammad Yousuf and can even now enlarge his two co-accused on bail.
In this connection he refers to the following observations made by the Hon'ble Supreme Court in paragraph No,19 of the judgment in Qaim Ali Shah's case:--
(i) that a statute which transgresses on the rights of a subject whether as regards his person or property should be so construed, if possible, which may preserve such rights;
(ii) that if two views of a provision of a penal statute are possible, one which favours an accused person be preferred over the other,
(iii) that the jurisdiction of the superior Courts cannot be abolished or ousted unless this is done by express, clear and unambiguous words or clear intendment.
6. His second leg of argument is that in Writ Petition No,4706 of 1992 Muhammad Yousaf respondent and his co-accused have challenged the transfer of this case by the Federal Government for trial to the Special Court for Speedy Trial and a learned Division Bench of this Court admitting it to regular hearing has stayed the proceedings before the Special Court for Speedy Trial and in a situation like this the accused have been left with no remedy except to request this Court for the grant of bail, moreso when a learned Single Judge of this Court in a similar matter (Crl. Misc. No,1895-CB/92) has granted bail to an accused against whom a challan has been submitted to the Special Court for Speedy Trial and the jurisdiction of that Court stands challenged in a pending writ petition. According to the learned counsel, the order passed by the learned Judge in the said criminal miscellaneous was unsuccessfully challenged before the Hon'ble Supreme Court. Finally, it is urged that, as in the aforesaid case, this Bench can grant bail to Muhammad Yaqub petitioner on medical ground and send the case of Muhammad Saeed petitioner back to the learned-Sessions Judge who refused the bail to him on the ground of lack of jurisdiction, if this Court comes to the conclusion that this Court, or for that matter, the Court of the learned Sessions Judge, has the jurisdiction to adjudicate upon his bail application.
7. After considering various contentions raised by the counsel representing the parties, I am of the view that section 3, section 5(3) and (5) and section 11 of the Special Courts for Speedy Trials Ordinance, 1992, which has also been enacted into an Act of the Federal Legislature, have left no scope for the grant of bail by the High Court in a case lawfully transferred to a Special Court set up under this law, because these provisions completely and unambiguously bar the jurisdiction of all other Courts, including the High Court, in bail matters. Thus, only the Special Court itself can grant bail to an accused in a case transferred to it and none else. This legislation is more strict and comprehensive on the subject of bail than the Offences in Respect of Banks (Special Courts)
Ordinance, 1984, and the Suppression of Terrorist Activities Act, 1975. This law i,e, 1992 Ordinance/Act is a harsh law, conferring absolute powers on a Special Court either to grant or refuse bail and such laws tend to create a tendency of arbitrariness in the concerned forum but what cannot be cured must be endured.
8. An alternate course of the exercise of writ jurisdiction has been suggested but I do not favour this idea. Constitutional jurisdiction cannot be invoked nor exercised in bail matters merely because the ordinary jurisdiction in such matters has been taken away by a special statute. An occasion for the exercise of writ jurisdiction in bail matters might arise in rare cases once in a blue moon and it cannot be made a routine affair. At least the case in hand is not the one justifying interference at bail stage in the exercise of extraordinary jurisdiction by this Court.
9. Anyhow, there is yet another aspect of the matter, hinting at its special feature, and that is that the very transfer and entrustment of the case to the Special Court for Speedy Trial has been challenged in a writ petition which stands admitted to regular hearing by a Division Bench of this Court and proceedings in the case have been stayed. In other words, the transfer order passed by the Federal Government stands suspended, or the stay of proceedings has the necessary effect of the same having been suspended, and the Special Court, till such time the interim order is revoked or modified, cannot pass any order, including an order for, the grant or rejection of any bail application. So, the bail remedy cannot be availed of by the accused in this case from the Special Court either. In a situation like this, they can request the Division Bench concerned for bail or for early disposal of their pending writ petition but that Bench, in view of Zubair's case, may also be not competent to handle their bail applications because all the bail applications so far arising out of this case have been disposed of by me. So, keeping in view the necessary implication of the stay of proceedings by the Division Bench in the trial Court, I am of the opinion that this Bench as also the Court of Session have the jurisdiction to entertain and dispose of the bail applications in question and the application for the cancellation of bail.
10. I have considered the merits of the application of Usman Ghani complainant for the cancellation of the bail of Sh. Muhammad Yousaf accused as also of the bail application of Muhammad Yaqoob accused for his release on medical ground and do not find any substance in either of them. The former was found innocent in successive investigations and placed in column No,2 of the challan, while the illness of the latter is nothing more than the backache which is not a serious disease requiring treatment outside jail hospital. Both these applications are, therefore, dismissed. So far as the bail application of Muhammad Saeed accused is concerned, he was refused bail by the learned Additional Sessions Judge on, account of lack of jurisdiction. Since he has the jurisdiction, he shall now dispose it of on merits as the same shall be deemed to be still pending before him.