1. ' Through this order, I intend to dispose of two bail applications filed in these revision applications as the question of law and facts are common.
2. ' Both these Criminal Revision Applications were admitted for regular hearing by this Court to consider, inter alia, whether a Session Judge is competent to transfer from his file a case to the Special Court for Suppression of Terrorist Activities. In both these cases, A.D.J. Karachi West vide order dated 28-1-1996 returned the case file alongwith bail application to S.H.O. Baldia Town Police Station, Karachi with direction to submit the same before the Special Court (S.T.A) having jurisdiction "under intimation to the said Court".
3. ' In Criminal Revision Application No,15 of 1996, applicant Muhammad Hanif alongwith seven other co-accused is involved in an offence under section 302/365/34, P.P.C. Vide F.I.R. No, 126/95 of P.S. Baldia Town, Karachi West. This F.I.R. Was lodged by one Haji Khan on 14-6-1995 alleging that his paternal cousin Nazim Khan was abducted on the said day at about 1-00 a.m. It is further alleged that during that same night he found the dead body lying at Mewa Shah Chowk. In these circumstances, F.I.R. Was lodged against some unknown persons. On 29-11-1995 charge-sheet was presented before the Court of Sessions Judge, Karachi West showing the present applicant alongwith some seven other persons as co-accused, all under arrest.
4. ' In Criminal Revisions Application No,16 of 1996 applicant Muhammad Hanif is again involved with the same set of co-accused in an offence under section 302/365/34, P.P.0 vide F.I.R. No,143/95 of P.S. Baldia Town, Karachi. On 20-6-1995, this F.I.R. Was lodged by A.S.I. Sarwar of P.S. Baldia Town after reviving telephonic information that two dead bodies are lying at Gali No,2, Kokin Colony near Madressa Faizul Islam. It is further alleged that when the said complainant reached the spot, he found two dead bodies, one of them was of Allah Wasaya. However, the complainant was not able to ascertain the name of the other deceased. According to the F.I.R., this was the day when the M.Q.M. (Altaf Group) called for a general strike. The complainant has expressed his view in the F.I.R.
5. That several of crimes are being committed by the group of Farooq Dada which includes several names including the name of present applicant. On 2-12-1995 charge-sheet was presented before the Court of Sessions Judge, West Karachi showing some eight (8) persons under arrest who are same as of case involved in Criminal Revision Application No,15 of 1996. However, some other eight other persons were shown in Column No,2 as absconder.
6. ' I have heard Mr. Mehmood A. Qureshi, Advocate for the applicants and Mr. Azizur Rehman Shaikh, Advocate for State. I have also perused the Police Papers. In view of the fact that the file of the case was returned to the Investigating Officer for presentation of the same to the concerned Special Court (S.T.A.), question arises is whether a Single Bench has jurisdiction to entertain bail application when apparently this bail application should have been placed before the Division Bench as provided under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. It is not denied by the learned counsel appearing for the State that till this date the concerned police station has not filed challan before any Special Court (S.T.A.). Mr. Mehmood A. Qureshi, learned counsel for the applicants has referred to the case of Abdul Karim v. The State (Criminal Bail Application No,962/95) wherein a learned Single Judge of this Court Mr. Ali Muhammad Baloch, in somewhat similar circumstances, entertained a bail application. Following is the relevant finding:- "Learned counsel for the application has contended that cognizance in this case was taken by the Sessions Judge when the Police produced the challan before the Court of Session. The order impugned was passed by the Sessions Judge and, therefore, the application under provisions of section 498 for grant of bail has been placed before a D.B as so far Special Court (S.T.A.) has neither taken the cognizance nor passed any order in the above matter, as the challan has been produced before the Sessions Judge. Under these circumstances, I agree with the contention of the learned counsel for the applicant and hold that this application has been rightly placed before this Single Bench, and this Bench proposes to decide this application."
7. ' Recently, a Division Bench of this Court comprising myself and Mr. Shahnawaz Awan, J. In the case of Bago and others v. The State (Criminal Miscellaneous Application No,209 of 1995) after referring to the cases of Riffat Hayat v. Judge Special Court, Lahore 1994 SCM R 2177 and State v. Yaqub and another 1979 PCr.LJ 927 held that a Court of Sessions Judge is not entitled in law to receive a case directly transferred from the Special Court (S.T.A.) and granted bail to the applicant in view of the following observations: "But the grievance of the applicant/accused does not end here. They have also filed a bail application. It is not denied that the applicant/accused are in custody since 27th July, 1992. It is yet to be decided whether their case is to be tried either by a Special Court or by a Sessions Court? Till decision of such question, they cannot be kept in detention for indefinite period. It is settled law that if a person is not accused of a scheduled offence, as provided in the Act, 1975, then this Court is fully competent to exercise its power under section 561-A, Cr.P.C. As well as under section 498, Cr.P.C."
8. On the merits of the case, it is argued by the learned counsel for the applicant/accused that the only evidence against the present applicant is the confessional statement of other co-accused which is not admissible. He has referred to the cases reported as Maula Bux and 8 others v. The State and 2 others 1977 SCM R 292 and Muhammad Naseer v. The State PLD 1988 FSC 58. The learned counsel for the State was not in a position to controvert this ground. The present applicants have filed their respective bail application before the Court of Additional Sessions Judge, Karachi West on 15-1-1996 which were also returned to the concerned Investigating Agency for presentation before the Special Court (S.T.A.). At present no trial is pending before any Court of law.
9. This is a clear case of hardship where the discretion must be exercised in favour of applicant. It is pertinent to note that both the criminal revision applications have been filed by Muhammad Hanif son of Abdul Razzak but the bail application has been preferred on behalf of other accused also who are not before this Court and, therefore, in my humble view they are not entitled to any relief. In these circumstances, I grant both these applications up to the extent of main petitioner namely Muhammad Hanif son of Abdul Razzak who shall be released upon furnishing one solvent surety in the sum of Rs,100,000 with P.R. Bond of like amount to the satisfaction of the Nazir of this Court. The prosecution shall be entitled to move for the cancellation of bail before the trial Court, in cases if tangible evidence is placed before the trial Court. With these observations both these bail applications stand disposed of.