1. ' HAZIQUL KHAIRI, J.---The applicant Atif Manzoor was one of the accused persons involved in Case No,22 of 1990 under sections 365-A and 395, P.P.C. Read with section 17(3) of Haraabah pending in the Special Court No,11 (Suppression of Terrorist Activities), Karachi. He was arrested by the C.IA. On 17-4-1990 but subsequently on 241-1991 the District Magistrate (South), Karachi tendered pardon to him under section 337(1) of the Criminal Procedure Code with a view to obtaining evidence against other accused persons alleged to have been involved in the case. Accordingly he was examined and cross-examined on the 6th of August, 1991 and the 30th January, 1992 respectively. He has now moved an application under section 561-A, Cr.P.C. For grant of bail on the ground that his evidence has been concluded and the prosecution had also closed its side on 12-8-1992 and he has remained in custody for a long time. Due to strains and stresses he has also developed numerous ailments requiring urgent medical attention. It is also urged by him that all other accused persons involved in the case have been released on bail.
2. ' While this application was fixed for hearing on 6-6-1993, Mr. Raja Qureshi, Advocate for Mr. Asif Ali Zardari, co-accused, made appearance opposing the bail application and sought permission to hear him before an order was passed on the bail application. Both learned Additional Advocate- General Mr. Syed Sarfaraz Ahmed and learned counsel for applicant Mr. Mansoob Ali Qureshi vehemently opposed the said request of Mr. Raja . Qureshi on the ground that an accused person has no locus standi to be heard in a bail application moved by an approver as it is a matter between the approver and the Court. We however permitted Mr. Raja Qureshi if he could pursuade us to his point of view and to further satisfy us as to how the grant of bail will adversely affect his client.
3. ' At the outset Mr. Raja Qureshi candidly conceded that there is no express provision in the Code of Criminal Procedure which entitles an accused person to be heard on a bail application of an approver but in view of express bar contained in section 337(3) thereof to grant of bail to an approver an accused person by necessary implication has a right to be heard, more so, as the accused would be adversely affected should the bail be granted to the former.
4. ' The first line of argument advanced by Mr. Raja Qureshi was that the grant of pardon by the Court under section 337 of the Criminal Procedure Code by itself is illegal, without authority and in violation of Haqooq-Allah. It will therefore be useful to reproduce section 337 of the Criminal Procedure Code as under:--- "337. In the case of any offence triable exclusively by the High Court or Court of Sessions, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Pakistan Penal Code with imprisonment which may extend to . Seven years, or any offence under any of the following sections of the Pakistan Penal Code, namely, sections 216-A, 369, 401, 435 and 477-A, (District Magistrate or a sub-Divisional Magistrate) may, at any stage of investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or bettor, in the commission thereof.
5. (1A) Every Magistrate who tenders a pardon under subsection (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record: ' Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of costs.
(2) Every person accepting a tender under this section shall be examined as a witness in the subsequent trial, if any.
6. (2A) In every case where a person has accepted a tender of pardon and has been examined under subsection (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Sessions or High Court, as the case may be.
(3) Such person, unless he is already on bail, shall be detained in custody until the termination of the trial." reliance, on Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633, in which it was held by the Shariat Appellate Bench as under:--- "Sections 337 to 339-A of the Code of Criminal Procedure are declared to be repugnant to the Injunctions of Islam in so far as they permit tender of pardon to an offender without reference to and without permission of the victim wherever this is required under the Injunctions of Islam in case of Jury and of the heirs of the victim in. Cases of Qatl.
7. ' Accordingly, it is held that this decision shall take effect from 23rd of March, 1990 whereby the provisions referred to above, to the extent they have been held to be repugnant to the Injunctions of Islam shall cease to have effect."
8. ' Subsequently in Haider Hussain and others v. Government of Pakistan and others PLD 1991 FSC 139, it was held by the Federal Shariat Court: "To sum up, the provisions of Article 16 of the Qanun-e-Shahadat, 1984, are declared as repugnant to the Injunctions of Islam to the extent that an accomplice is not a competent witness in offences punishable with Qisas, and a conviction based on uncorroborated testimony of an accomplice even in the matter of Ta'zir will be illegal.
9. ' Sections 337 and 338 of Criminal Procedure Code, are declared repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.) to the extent that no tendering of pardon to an accomplice can be made in case of offence punishable with Hadd and the offence punishable with Ta'zir relating to Haq alAbad ({{URDU TEXT}}) the right of an individual."
10. ' It may be stated here that this very question was raised on behalf of Asif Ali Zardari as to the deposition of applicant approver who was co-accused with him before the Special Court which in its order observed that "all the contentions raised by the learned counsel for accused relate to appreciation of evidence and procedural legality of granting pardon to the approver and his status as an approver. Ali these contentions cannot be considered at this stage as they can conveniently be raised at the final arguments of the case." The intervenor thereupon filed a criminal revision application in the High Court which was also dismissed with the observation that the learned Judges of the High Court would refrain from making any observation in this regard at this stage as this point is open to be considered by the trial Court at the conclusion of evidence in the case. The intervenor thereupon filed a petition for leave to appeal to the Supreme Court of Pakistan which too was dismissed with the observation that it would be open to the intervenor to urge whatever legal contentions are available to him in terms of the order of the learned Special Court. Despite this, learned counsel for intervenor insists that his contentions may also be considered by us in view of the decisions of the Federal Shariat Court (supra). I will refrain from commenting upon it in view of the observations made by the Supreme Court, but would like to add that if his contentions are being upheld by the learned Special Judge even grant of bail to the approver will not adversely affect his client.
11. ' Reverting to the question whether bail can be granted to an approver, learned counsel for Asif Ali Zardari placed heavy reliance on Rehmat Masih v. The State PLD 1968 Lah. 1030, in which it was held by a Division Bench: "The language of section 337(3), Cr.P.C. Has received the attention of numerous Courts is that an approver, as long as the trial of the case in which he has agreed to become an approver has not concluded, shall be kept in custody. In other words the view taken is that an approver as long as the trial of the case in which he is an approver has not concluded, shall not be released on bail. The provision contained in section 337(3), Cr.P.C., is mandatory and consequently cannot be set at naught, it being based on a very salutary principle of public policy and public interest."
12. Since an approver ceases to be an accused person and sections 496, 497 and 498, Cr.P.C. Shall have no application in the case. As to whether the provisions of section 561-A, Cr.P.C. Could be invoked, learned Judges of erstwhile High Court of West Pakistan differed with the view of a learned Single Judge of that Court in the following words:- "The only point of difference between the two learned Judges is that according to the view taken by Mr. Justice Shaukat Ali in Criminal Miscellaneous No,3692 of 1966 the High Court can grant bail by exercise of power vesting in it under section 561-A, Cr.P.C., despite the prohibition contained in section 337(3), Cr.P.C., on the exercise of power to grant bail. We have considered the view of our learned brother and we are in respectful disagreement with him. The law is quite settled that inherent power vesting in the High Court under section 561-A, Cr.P.C., is not an independent or a supplemental power conferred on the High Court to fill up vacuums or lacunae in law wherever necessary in the interest of justice if there is otherwise no provision in law in existence. Ali the Courts have been unanimous in holding that the power contained in section 561-A, Cr.P.C., is ancillary and can be invoked only to prevent abuse of process of Court but only to the limited extent of power of that kind being in existence. As the power to grant bail to an approver is not only non-existent but has been expressly taken away by section 337(3), Cr.P.C., the question of granting bail under section 561-A, Cr.P.C., would not arise. Granting bail to an approver under section 561-A, Cr.P.C. Will mean setting at naught the provisions contained in section 337(3), Cr.P.C. The intention with which section 561-A, Cr.P.C. Was enacted was not clothe the High Court with powers which could not otherwise be exercised on account of a prohibition contained in law."
13. ' Subsequently in PLD 1975 Kar. 159, a learned Judge of this Court Mr. Justice Abdul Hayee Qureshi (as he then was) had to deal with the bail application of an approver who had remained in custody for nearly seven years and the trial was nowhere near completion. Furtherance to the view of Mr. Justice Shaukat Ali (as he then was) bail was granted to the approver under section 561-A, Cr.P.C. And it was held distinguishing that the bail could be granted to an approver under section 561-A, Cr.P.C. In case of hardship of nature as might border on injustice and that the bar under section 337(3), Cr.P.C. Cannot be considered to be absolute". Giving reasons it was observed by him: "There may be cases where a trial is delayed beyond any reasonable proportion and for no fault of the approver. Would it then be just to keep the approver in the indefinite custody. This would be an abuse of process of Court curable under section 561-A, Cr.P.C. There may be a case where an approver is seriously sick and runs the risk of losing his life if he is in custody. Could it then be said that if he were an accused and actual perpetrator of the crime he could succeed in obtaining bail; but if he has only been "privy" to the offence, so as to be tendered a pardon he must remain in custody. There may be cases where accused abscond and there may be no prospect of the conclusion of the trial. Would it be advancing the interest of justice to keep an approver in indefinite custody. There may be situations, when the approver, if he were to be tried as an accused, may ultimately be found not guilty or guilty of a lessor offence. In such case would it be in furtherance of justice to keep an approver in custody for a period beyond measure of justice. There may be a case where the approver has actually fulfilled the terms of the pardon by giving evidence but for some reasons to which the approver is not a contributory the case does not proceed. In such a case would it be just to keep an approver in custody. Numerous other situations could be contemplated when detention of an approver may appear to be unjust."
14. ' In Allied Bank of Pakistan Ltd. v. Khalid Farooq, 1991 SCMR 599 the Supreme Court of Pakistan in a bail matter examined the provisions of Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984) alongwith the sections 426, 497, 498, 561-A of Cr.P.C. And held as follows: "Section 561-A cannot be invoked to bring about a result in respect of which there is an express prohibition or express provision provided in the Code or any other law. Inherent powers are regarded as auxiliary or ancillary to make effective orders that can legally be passed and not those that legally cannot be passed."
15. ' It is a recognized principle of law that a claim in respect of the order of power of the High Court in respect of any matter or subject available to it under the Codes of Civil or Criminal Procedure cannot be highly accepted, unless there is a clear, definite and positive provision arising the jurisdiction express words or clear intendment or necessary implication are required to take away the jurisdiction of a High Court as Superior Court."
16. ' However, the Supreme Court of Pakistan despite the bar under section 10(1) of Offences in Respect of Banks (Special Court) Ordinance, 1984 had kept open for future consideration the question as to whether bail can be granted to a convict where there was want of jurisdiction or where evidence on record does not call for consideration.
17. ' Subsequently, in State v. Qaim Ali Shah 1992 SCMR 2192 the question before the Supreme Court, inter alia, was whether the ratio of the above-noted judgment of the Supreme Court can be pressed into service where a person facing trial before a Special Court under the Suppression of Terrorist Activities Act (XV of 1975) applies for bail on medical ground under first proviso to subsection (1) of section 497, Cr.P.C. The Supreme Court after great deal of discussion held that "the provisos 1 and 3 to subsection (1) of section 497, Cr.P.C. Are available to the Special Court and the High Court in a case in which an accused person may be facing trial under the Act before the Special Court, the view of this Court to the above extent with Allied Bank case is required to be modified".
18. ' As to whether the provisions of section 526-A, Cr.P.C. Can be pressed into service when embargo was placed by section 7(2) of the Act XV of 1975 on the power of Appellate Court under section 426, Cr.P.C. Justice Ajmal Mian (as he then was) who wrote the judgment observed:--- "However, it may be pointed out that the exclusion of the application of section 426, Cr.P.C. By virtue of section 7(1) of the Act during the pendency of an appeal of a convict before the High Court is founded on the assumption that the appeal would be disposed of within three months as provided in subsection (2) of above section 7 of the Act, but in case an appeal of a convict remains pending for a number of years either on account of delaying tactics on the part of the Prosecuting Agency or because of the heavy work load of the Court, would it be fair and just to deny him bail on the ground of delay. In my view, since it has been held by this Court in more than one cases already referred to hereinabove in para. 21 that the delay in prosecution of a criminal case amounts to abuse of process of Court/law warranting grant of bail, the High Court in a case of above nature may press into service section 561-A, Cr.P.C. But not as a matter of course or as a substitute to section 426, Cr.P.C. The delay should be of the nature which may be repulsive and unconscionable.
19. ' Similarly if a convict during the pendency of his appeal before the High Court develops an ailment of the nature that keeping him in detention may result into his death and that he cannot be provided requisite treatment under detention in the Government and/or other hospitals, the High Court may in such a case invoke section 561-A, Cr.P.C. And may release him on bail, as such an order will be within the ambit of the expression "or otherwise to secure the ends of justice", used in above section 561-A, Cr.P.C.
20. 'We should not be oblivious of the fact that our Constitution guarantees fundamental rights and Article 2-A thereof enshrines Islamic mandates and we are living in an era in which the enforcement of the human rights has become an international issue. So the Courts while construing the provisions of statutes should make efforts that the interpretation of the relevant provisions of the relevant statute should be in consonance with the above Articles of the Constitution and the grund norms of human rights. The view which I am inclined to take seems to be in accord with the above approach."
21. ' Earlier in Abdul Khaliq v. The State PLD 1990 Kar. 448, a Full Bench of the High Court of Sindh while examining section 7 of the Suppression of Terrorist Activities (Special Court) Act (XV of 1975) alongwith sections 461-A and 426, Cr.P.C. Had held that section 561-A, Cr.P.C. Gives inherent power to the High Court to grant bail to prevent abuse of process of any Court or otherwise to secure the ends of justice.
22. ' What brings into force is the question whether the inherent power of the High Court under section 561-A, Cr.P.C. Can be invoked for purposes of bail to an approver despite the bar contained in subsection (3) of section 337 of Cr.P.C. The view as expressed in Rehmat Mashi's case (supra) that the provisions of section 561-A, Cr.P.C. Relating to inherent power of the High Court is not independent or supplemental to fill up the vacuums or lacunae in law wherever necessary in the interest of justice, no more holds ground in view of settled legal position in the case of State v. Qaim Ali Shah 1992 SCMR 2192 (supra).
23. ' Admittedly the applicant has remained in detention for over a period of three years five months and has developed numerous ailments. His evidence was concluded long time back and his physical presence in the jail premises is no more required for purpose of evidence. Mr. S. Sarfaraz Ahmed, Additional Advocate-General fully supports his application for bail and states that the approver has given his evidence and fulfilled the terms of pardon. There is no certification against him in terms of section 339, Cr.P.C. By the Public Prosecutor, before the trial Court, who incidentally was none but the learned Additional Advocate-General himself as "Special Public Prosecutor". It is confirmed by him that the applicant/approver has developed numerous ailments and there has been no progress in the case since 12-8-1992, when the prosecution had closed its side. He also cannot say when the trial will be concluded. In Karuppa Serval v. Kandaru alias Muniandi Tehvan AIR 1952 Mad. 833, the following observations were made by a Single Judge of Madras High Court:- -- "There may be a little doubt whether an approver can be released after he has given his full evidence in the Sessions Court, and where the Public Prosecutor does not certify that there is anything concealed or false, even before the trial is over, but there is no doubt at all that he cannot be released on bail at an earlier stage (if committal ensues) when he was not on bail at the time he was tendered the pardon and accepted it."
24. With the back-drop that the applicant approver has been in detention for about 3-1/2 years has given evidence and fulfilled his terms of pardon long time back with no hope of conclusion of trial in a near future, his bail application assumes greater significance. It is admitted by Mr. Syed Sarfaraz Ahmed, Additional Advocate-General as well as by Mr. Raja Qureshi, learned counsel for Asif Ali Zardari that the delay in the proceedings before the Special Court is not attributable to him.
25. It would be useful here to refer to section 5-A(1) of the Suppression of Terrorist Activities (Special Courts) Act 1975 whereunder after taking cognizance of a case "The Special Court shall proceed with the trial from day to day and shall decide the case speedily." Similarly under section 5-A(2) "a Special Court shall not adjourn any trial for any purpose, unless such adjournment is in its opinion, necessary in the interest of justice and no adjournment shall be granted for more than two days.
26. "This prolonged delay is violative of the provisions contained in section 5-A(1) & (2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and in the circumstances of the case is of such nature as would perpetuate agony and hardship to the applicant approver for no fault of his. I am therefore of the view that it is a fit case for invoking the inherent jurisdiction of this Court under section 561-A, Cr.P.C. And despite the bar contained under section 337(3), Cr.P.C., the applicant approver is entitled to bail. I accordingly order that he may be enlarged on bail upon furnishing surety in the sum of Rs,50,000 and P.R. Bond of like amount to the satisfaction of the learned Special Judge.
27. ' In so far as the question whether an accused person has any locus standi to be made a party in a bail application of an approver, it may be stated C that it is essentially a matter between the Court and the approver and an accused has no locus standi to be heard or made a party. No doubt the State may support or oppose a bail application of an approver but a Court is not D bound to act upon it as grant or refusal of bail of an approver has to be decided on the facts of each case resting on judicial discretion.