' An application for bail has been moved on behalf of Wali Jan and Jamaluddin against whom a case has been registered under sections 302/324/34 and 109, P.P.C. For the alleged murder of one and murderous assault upon Abdul Qahir, Muhammad Saleem and Manaf. A case was got registered at Police Station Hurramzai at Pishin by Muhammad Essa son of Dad Muhammad. The bail application moved earlier was rejected by learned Additional Sessions Judge, Pishin vide his order, dated 3-1-1995.
2. It is mainly contended by Mr. Muhammad Wasey Tareen, Advocate, on behalf of the accused/applicants that sufficient incriminating material is lacking to connect the accused/applicants with the commission of alleged offences. It is further contended that after a thorough investigation the accused/applicants were discharged under section 169, Cr.P.C. Due to lack of incriminating material, but subsequently the case was handed over to Crimes Branch for further investigation, but with no substantial change as the position remained the same and no iota of evidence could be collected even by the Crimes Branch. It is also pointed out that the statements of all the prosecution witnesses recorded so far hardly supports the prosecution version, as the evidence is self-contradictory and based on hearsay. He has also mentioned various affidavits filed on different occasions which indicates the conflicting views of the witnesses and the complainant. It is also argued that first of all one Hayat was nominated after the alleged occurrence and subsequently without justification the accused/applicants were nominated which itself is sufficient to conclude that the matter falls within the ambit of further enquiry.
3. Mr. Muhammad Yaqoob Khan Yousafzai, learned Advocate-General appeared on behalf of State and vehemently opposed this bail application on the ground that challan is prepared and would be submitted shortly to the Special Court constituted under the Suppression of Terrorist Activities (Special Court) Act, 1975 (hereinafter referred to as the Act), as such the learned Additional Sessions Judge, Pishin at Quetta, as well as this Court has no jurisdiction to adjudicate upon the matter keeping in view the relevant provisions as contained in section 5 of the Act, as the alleged offences being Scheduled offences are exclusively triable by the Special Court. In order to substantiate the said version the learned Advocate-General referred various authorities. It is also contended by the learned Advocate-General that since klashnikov has been used, therefore, there is no other option but to move an application for bail before Special Court constituted under Suppression of Terrorist Activities Act, 1975 as no other forum would be competent to grant bail.
4. Mr. SA.M. Quadri, Advocate, appeared on behalf of complainant had supported the learned Advocate-General and argued further that any offence wherein klashnikov has been used would be exclusively triable by the learned Special Court and with the commission of such offence the cognizance shall be deemed to have been taken under section 5 of the Act. In support of the said view Mr. SA.M. Quadri, Advocate, also referred section 5(3) of the Act. He has also referred to various authorities, which mainly relate to trial and the question of bail has not been examined and moreso, the same are distinguishable.
5. I have carefully examined the abovementioned contentions as adduced on behalf of accused/applicants, State and for complainant in the light of relevant provisions of law and available record. I have carefully examined the relevant provisions regarding power of Special Court for the trial of cases and bail matters. Undoubtedly being Special Law various provisions of Cr.P.C. Have been superseded after its promulgation but it must not be lost sight of that promulgation of Special Law itself is not sufficient to supersede the provisions as contemplated in Cr.P.C. Till so provided in an unambiguous manner and it cannot be stretched too far to cross its defined limits. The accepted principle is "that special enactments transgressing into the field in occupation of the laws universally applied and accepted in a country deserves strict interpretation so that they are confined to that field alone in which departure was intended by the legislature due to any expediency" PLD 1982 Quetta 103 (F.B.). Let me reproduce here section 5-A(8) of the Act at the cost of repetition:- "An accused person shall not be released on bail by a Special Court, or by any other Court, if there appears reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person to be so released unless the prosecution has been given notice to show-cause why he should not be so released."
6. A bare perusal would show that a two-fold bar has been imposed for grant of bail:-
(a) existence of reasonable grounds connecting the accused with the commission of alleged offences under the Act;
(b) show-cause notice to prosecution before such bail application is considered; ' other bar whatsoever has been imposed and it would be an exercise in futility to interpret the said section in such a manner as to show existence of any other bar. Had this been the position the legislature could have easily incorporated such bar in an unambiguous manner as has been done under section 7 of the Act. The said view also finds support from the word "by any other Court" which are clearly demonstrative of the reality that the matter of bail does not fall exclusively within the jurisdictional domain of Special Court. I also find support for the said view, from case titled Aftab Ahmed Shah v. The State reported in 1989 PCr.LJ (Kar.) 112, wherein it was held as under:-- "There seems to be preponderance of view that even in the cases triable by Special Courts under Special laws in the absence of any express prohibition in the relevant statute, sections 497 and 498, Cr.P.C. Can be invoked inter alia, by the High Court while considering a bail application. There is no express prohibition provided in the Act of 1975 as to the application of sections 497 and 498, Cr.P.C.
Mr. AA. Muhammadally has referred to subsections (1) to (5) of section 5 of the Act of 1975 and also section 10 of the Act of 1975 to contend that the provisions of Cr.P.C. Are not applicable. It will suffice to observe that he has overlooked subsection (7) of section 5 which provides that `A Special Court shall, in all matters with respect to which no procedure has been prescribed by this Act, follow the procedure prescribed by the Code for the trial of summons cases by Magistrate'. In case of any inconsistency between a provision of the Act of 1975 as to the procedure and a provision of the Cr.P.C. The former shall prevail but in the absence of a provision in Act of 1975 the provisions of Cr.P.C. Will be applicable even in a trial before the Special Court. Section 10 which overrides the other law does not change the above legal position."
7. -A similar proposition was also dealt with in case Sareed Khan v. The State PLD 1989 Pesh. 80 wherein it was observed as under:-- "Both the learned counsel for the parties relied on this judgment. I have heard at length both the learned counsel for the parties on the point in issue. My reading of the Full Bench case cited at the Bar is that in the cases exclusively triable by the Special Court set up under Act XV of 1975, where the challan against a person accused of a scheduled offence, is not yet submitted before the Special Court and the case is still at the investigation stage, the High Court has the power under section 498, Cr.P.C. To entertain a bail application and in a fit case, that is to say, in the absence of there appearing reasonable grounds for believing that he has been guilty of a scheduled offence, he can be released on bail. But once the challan has been submitted in, and the cognizance has been taken by, the Special Court, no other Court, including a High Court, would be left with any jurisdiction to be exercised in entertaining the bail application of such an accused person save the Special Court itself. This interpretation of subsection (6) of section 5 read with section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 is also founded on quite reasonable basis in that by the time the challan is yet to be submitted. It is not certain, and in fact yet to be determined, whether such conclusive proof has come forth during the investigation as to raise reasonable grounds for believing that the accused has been guilty of a scheduled offence and in the same sequence of events whether the challan shall be submitted before the Special Court or as the case may be, in an ordinary Court of original Criminal jurisdiction."
8. I have thoroughly examined the record of the case, which is indicative of the fact that "challan" is yet to be submitted as such the question of want of jurisdiction does not arise because "cognizance" is yet to be taken in pursuance of the provisions as contemplated under section 5 of the Act. I may make it clear here that it would be a misconceived notion to say that as soon as the schedule offences are committed the cognizance shall be deemed to have been taken by the Special Court as "automatic cognizance" does not find place in the Act itself. Let me reproduce section 5(3) of the Act, which is often misinterpreted:-- "The Special Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code."
9. A bare perusal would show that section 5(3) of the Act speaks about "case" and not an "offence".
It depends upon investigation whether the committed offence falls within the definition of "scheduled offence" or otherwise. The word "investigation" has also been defined in clause (1) of subsection (1) of section 4 of the Criminal Procedure Code which includes "all the proceedings in this Court for the collection of evidence conducted by a police official or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf'. The Special Court has not been assigned with the function to conduct investigation, which alone could determine the nature of the offence and subsequent cognizance after its completion. In my view the provisions as contemplated under section 5(3) of the Act can only be invoked by the Special Court where investigation of offence has been completed and sufficient incriminating material collected to infer that a "scheduled offence" has been committed and the case is yet to be submitted under section 5(1) of the Act. The other object of section 5(3) of the Act seems to have a check on police, as it does not depend on its whims and wishes to send such a case whenever so desired and the Special Court has been empowered to take direct cognizance of the "case" triable by such Court.
There is, however, no cavil to the proposition that all the scheduled offences are exclusively triable by the Special Court.
10. The upshot of the abovementioned discussion would be that the powers as conferred upon under sections 497 and 498, Cr.P.C. Have not been effected and are intact. The Act of 1975 does not in any manner restrict or limit the powers of High Court as conferred by the Cr.P.C. Except those provisions which are provided such as exclusive trial of the scheduled offences by the Special Court and appeal from sentences imposed by Special Court etc. The powers under sections 497 and 498, Cr.P.C. Have not been taken away and as such the same can be exercised wherever deemed fit and proper. It hardly needs any further elaboration that in all cases triable by Special Court under Special Laws in absence of any express prohibition in the relevant statute section 497 and section 498, Cr.P.C. Could be invoked inter alia by High Court while considering a bail application. No such express prohibition has been provided in Act XV of 1975 regarding the application of section 497/498, Cr.P.C. (1989 PCr.LJ 112). In so far as this case is concerned the challan is yet to be submitted and cognizance is to be taken by Special Court. Had the cognizance been taken, the position would have been different, but now by no stretch of imagination it can be imagined that this Court has no jurisdiction to deal with it.
11. I have carefully examined the scheme as envisaged in the Act. It is an Act to provide for suppression of acts of sabotage, subversion and terrorism. The mode of cognizance as provided in section 190, Cr.P.C. Has not been adopted and a substantial change made by authorizing the Special Court to take cognizance of the case without the same being referred to it in pursuance of section 190, Cr.P.C. Similarly it has been made obligatory for the Officer Incharge of a Police Station to complete the investigation and forward report under section 173, Cr.P.C. Within 14 days (section 5) and the Special Court shall proceed with the trial after taking cognizance of such case and after completion of trial as per prescribed procedure decide the case as may be deemed fit and proper (section 5-A), the powers of Special Court are mentioned in section 6 of the Act, while section 7 deals with appeals from sentences imposed by Special Court, the rest of the sections of the Act pertains to burden of proof (section 8) Indemnity (section 9), Act to override other laws (section 10) and Repeal (section 11). The brief description of the Act would make clear that the operation of Cr.P.C. Has not been ousted altogether and particularly in bail matters as provided under section 5-A(8) of the Act. It needs no explanation that bail is an ancillary matters which comes into picture immediately after the arrest of an accused and remain in existence till the conclusion of trial. Now here the question arises that which should be the forum for the adjudication of bail matters after the arrest of an accused person? It must be kept in view that Special Court commences its function on taking cognizance of a case and prior to that bail application can be moved by invoking the provisions as contemplated under sections 497 and 498, Cr.P.C. As no such restriction has been provided in the Act itself. The other reason is that after the commission of an offence which must be a scheduled one cognizance cannot be taken since a specific mode has been provided (section 5) and at that initial stage the offence (not case) does not fall within the jurisdictional domain of Special Court which can only be cognizant about the commission of an offence till submission of report under section 173, Cr.P.C. Or initiation of action under section 5(3) and till then the provisions as contemplated under sections 497 and 498, Cr.P.C. Shall remain operative. But once the cognizance which means a conscious application of mind is taken then at first instance the bail application should have been moved before Special Court.
12. I have thoroughly examined the record of the case with the assistance of learned Advocate- General which is indicative of the fact that F.I.R. Was got lodged by Muhammad Essa on 10-12-1993 where a specific role has been assigned to Muhammad Hayat, but subsequently an affidavit was sworn by Muhammad Essa that the allegation levelled against Muhammad Hayat were not correct, which makes his integrity highly doubtful. It is to be noted that Levies also arrested 12 persons including the present accused/applicants, but subsequently discharged them under section 169, Cr.P.C. As sufficient incriminating material was lacking to connect them with the commission of alleged offences. The investigation was subsequently handed over to Crimes Branch. It is indicative from the relevant record that heirs of deceased nominated Wali Jan and Jamaluddin as the culprits and no independent investigation was ever conducted to find out the reality even by the Crimes Branch. Let me reproduce here the relevant sentences as used in the challan, which is yet to be submitted to the forum/ concerned:- {{URDU TEXT}} ' As mentioned above the accused/applicants were previously discharged under section 169, Cr.P.C. In the F.I.R. Got lodged on 10-12-1993 one Hayat was nominated, but subsequently an affidavit was filed on 20-1-1994 by Muhammad Essa with the following plea:- {{URDU TEXT}}
13. I have also minutely perused the statement of Abdul Qahir, which indicates that the accused were with muffled faces and moreso, he did not nominate any one in his statement recorded by Levies and Crimes Branch Muhammad Saleem has also filed an affidavit and stated that he could not identify any one. The arrest of the accused/applicants was made on the disclosure of one Muhammad Ibrahim which was made on 24-7-1994 while the incident occurred on 10-12-1993 and furthermore, his statement was not recorded. No doubt that the statements of 66 witnesses have been recorded by the Crimes Branch, but it is yet to be determined whether the alleged offence was committed by the accused/applicants and if so what role was played by them, to connect them with the commission of alleged offences, and as such the matter falls within the ambit of further inquiry. The investigation conducted by the Levies, discharge of the accused/applicants under section 169, Cr.P.C. And subsequent investigation by the Crimes Branch also indicates that the matter falls within the domain of further enquiry and as such concession of bail can be granted in favour of accused/applicants. I am deliberately withholding my comments on the merits of the case lest it may prejudice the case of any of the parties, but it is suffice to say that a prima facie case is not made out at this stage.
In view of what has been stated above I am inclined to grant bail in I favour of accused/applicants on furnishing sureties in sum of Rs,2 lacs each (with two sureties of Rs,1 lac each) and P.R. Of the same amount to the satisfaction of Deputy Registrar of this Court. The prosecution would, however, be at liberty to move an application for cancellation of bail if subsequently some more, incriminating material is collected.
' The observations made hereinabove are tentative in nature and shall not influence the trial Court.