ORDER RIAZ AHMAD, J.- Petitioner is accused for the commission of offence under sections 302/148/149/324 PPC arid 337(A) of the Qisas & Diyat Ordinance. The prosecution case in brief as narrated in the FIR lodged by Malik Muhammad Ilyas is that the complainant on the fateful day at about 7 p.m. Alongwith his brothers Malik Muhammad Yousaf. 'Malik Muhammad Riaz, Fiaz Ahmad and his father Muhammad* Hanif and some other persons namely Sufi Rehmat Ali. Aslam and Mansoor were present in the Election Office of the complainant, who had taken pan in the Local Bodies Elections as a candidate, but had lost the same; and his supporters had assembled in his office. According to the complainant, he was thanking them for their support, and was seeing them of. When in the meanwhile, the opponent of the complainant who had won the election namely Mukhtar Ahmad Butt, his son Ijaz Ahmad Butt the petitioner and other persons namely Mirza Abdul Rauf. Mirza Muhammad Asif, Mirza Muhammad Faruq armed with lethal weapons also reached the office of the complainant. According to the complainant. Mukhtar Ahmad Butt raised a Lalkara that the family of the complainant should be finished, whereupon. Mirza Muhammad Sadiq armed with Mauzer and Sardar Khan armed with Revolver fired shots in the air. Thereafter. Mirza Faruq Ahmad and Mirza Ahmad Asif caught hold of Fiaz a brother of the complainant, and Mirza Muhammad Asif inflicted a Khanjar blow on the chest of Fiaz Ahmad. Fiaz Ahmad with a view to sav e himself turned around and the Khanjar stuck at the back of the chest of the victim. The second blow was about to be inflicted when Muhammad Yousaf caught hold of the hand of assailant, on account of which, hand of Muhammad Yousaf w as injured. In the meanwhile. Fiaz Ahmad fell down, when Mirza Ahmad Sadiq who was armed with a Mauzer gave its butt blows on the head of Muhammad Ayyub. Which caused bleeding. Sardar Khan who was armed with a revolver inflicted butt blows on the head of Muhammad Riaz, and his head was injured. Petitioner Ijaz Ahmad Butt who was armed with a Kalashnikov inflicted the butt blows on the face of Sufi Rehmat Ali causing him injuries. Mirza Abdul Rauf and Mirza Faruq then threw brick bars, on account of which panes of the windows of the office broke. Fiaz Ahmad in the meanwhile, succumbed to his injuries. The assailants while raising Lalkaras decamped from the scene of occurrence.
2 . Motive for the commission of offence as narrated in the FIR is that three days before during the election Mukhtar Ahmad Butt and the deceased had altercated with each other on account of affixing the posters, and Mukhtar Butt had threatened him with dire consequences.
3. As a consequence of the registration of this case, the accused named in the FIR were arrested, and after the completion of the investigation, the challan in this case i.e., the report under section 173 Cr.P.C, was submitted in the Special Court for Speedy Trial at Lahore. According to the Investigating Officer of this case, as far as petitioner was concerned, his name was placed in column No. 2. And it was also observed, that he was not present at the spot on account of the statements of more than two hundred persons who had appeared in his defence, During the investigation it also came to light that he was not armed with Kalashnikov as well. This investigation was also verified by the DSP/New Anar Kali.
4. An application on behalf of the petitioner w as moved for the grant of bail before the Special Court for Speedy Trial which w as dismissed vide order dated 30.3.92. The learned Presiding Officer of the Special Court dismissed the bail application of the petitioner on the ground that report under section 173 Cr.P.C., was not cogent, and was contradictory. Hence, the bail was declined.
5. Petitioner has now invoked the jurisdiction of this Court. During the course of arguments, an interesting question has been raised by the learned counsel for the complainant Mr. Akram Qureshi. Advocate who has very ably argued this case, lt was contended by the learned counsel for the complainant that in view of the specific provision contained in section 11 of the Special Courts for Speedy Trials Ordinance. 1991. Jurisdiction of this Court has been taken away therefore, this Court is not competent to grant bail under section -!98 Cr.P.C.
6. On the other hand. Mr. Munir Ahmad Bhatti. Advocate for the petitioner contends that the jurisdiction of this Court is in tact, and in support his contention, the learned counsel has placed reliance upon the judgment of the Supreme Court delivered in a case reported as Allied Bank of Pakistan v. Khalid Faruq, 1991 (SCMR (599) to-argue that despite of ouster of jurisdiction under the provision of section 5 A(8) of the Suppression of Terrorist Activities Act . 1975 still it was observed that this Court can entertain an application under section 561 A Cr.P.C, after the conviction. The learned counsel for the petitioner also placed reliance upon Neelam Moaz case (PLD) 1991( SC)
(640).
7. To consider this question of vital importance, this Court sent for the learned Advocate General, who has also appeared, and has sensably elaborated the ratio decidendi of both the cases, referred to above.
8. To ascertain the factual position, it w ill be advantageous to reproduce section 11 of the Special Courts for Speedy Trials Ordinance. 1991.
Section 11:- Bail:-Notwithstanding the provisions of 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 in a case triable by a Special Court. Provided that the Special Court shall not release the accused on bail, if there appear reasonable grounds for believing that he has been guilty of the offence for which he lias 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."
9. In this behalf, the perusal of section 5-A (8) of the Suppression of Terrorist Activities Act, 1975 will also be advantageous tp reproduce hereunder:- Seaion 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."
10. Similarly, the provisions of section 5(6) of the Offences in Respect of Bank (Special Courts)
Ordinance. 1984. Are also relevant, and are reproduced hereunder: "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."
11. The perusal of the above provision clearly shows that as far as the language of the Suppression of Terrorist Activities Act. 1975 and the Offences in Respect of Banks Ordinance is concerned, they are pari material, and both the provisions were considered by the Supreme Court at length in both the cases referred to above cited by the learned counsel for the petitioner.
12. The learned Advocate-General also contends that the perusal of both the judgments reveals that the question for the grant of bail under sections 497/498 Cr.P.C, was distinct from the suspension of sentence under section 426 Cr.P.C. Precisely, according to both the judgments, the High Court was competent to granbail during the trial, but as far as suspension of sentence after the conviction under the aforesaid judgments, this Court has the jurisdiction to do so under section 561-A. Cr.P.C.
13. Ln the light of the aforesaid provisions, section 11 of the Special Courts for Speedy Trials Ordinance, 1991 needs examination but in my view, it is not proper stage to give an authoritative pronouncement, because the matter can be dealt with from another angle while exercising the Constitutional jurisdiction of this Court.
14. The learned Advocate General has also argued that as far as Cognizance of the case or the trial of this case by the Special Court is concerned, the same is the subject-matter of the writ petition pending in this Court wherein transfer of this case to the Special Court for Speedy Trail at Lahore has been challenged, whereby, the proceedings have been stayed in the trial Court.
15. Considering the case from all angles, and in view of the specific provisions of section 11. Of the Special Courts for Speedy Trials Ordinance, and the pendency of the writ petition in this Court whereby the transfer of this case to the Special Court has been assailed, it will not be useful at this stage to give the final verdict or the pronouncement as to the jurisdiction exercisable by this Court under section 498 Cr.P.C., for the grant of bail in a case the challan thereof has been sent to the Special Court for Speedy Trials, because the matter can be dealt with and resolved by way of exercising the. Constitutional jurisdiction vesting in this Court. In this view of the matter, this petition is convened and treated as a w rit petition under Article 199 of the Constitution of Islamic Republic of Pakistan; 1973. The learned counsel is directed to submit the necessary stamp papers in. This regard within three days. Judging the case from this angle. I have examined the order impugned delining to, grant bail to the petitioner. In my view the findings arrived at by the learned Judge of the Special Court are erroneous and based upon the misreading of the facts, inasmuch as. The report submitted under section 173 Cr.P.C, is not contradictory, and is very clear, that the petitioner was neither present nor had the Kalashnikov with him: and had not caused any injury that is why his name was put in column No. 2 of the challan because the Investigating Agency was short of material against the petitioner. However, it is pertinent to mention that the motive as alleged in the FIR also w as not proved.
I6. Be that as it may. I would not further comment upon the merits of the case, lest the same should prejudice either side during the trial. However, in the circumstances of the case. I direct that the petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs. One hundred thousand with one surety in the like amount to the satisfaction of Assistant Commissioner City Lahore.