JUDGMENT SYED DEEDAR HUSSAIN SHAH J.- The brief facts of the prosecution story as per FIR arc that on 9.10.1993; complainant Ghulam Mustafa Chandio lodged the FIR alleging therein that on the date of incident election for seat of Provincial Assembly was going on in Government High School Building. The voters were casting their votes and the complainant had also gone there to cast his vole; while complainant Muhammad Ali Samoon, Essa Chandio; Haroon Chandio; Phul Chandio and few others were sitting at Sim Nalla, when at about 1630 hours, one vehicle arrived there, out of which accused Qassim Phul, Hassan Phul, Gul Muhammad Gulloo Rahoo v Shcikhu Rahoo, Ali Mir Shah, Aslam Rahoo and his body-guard, who was armed with Kalashnikov and others were having hatchets and lathis alongwith 25/30 unknown persons came at the Polling Station. The complainant told them that their votes were not registered at the Polling Station and advised them to go away. Upon such altercation quarrel took place. Aslam Rahoo instigated his body-guard and other companions not to spare their party, upon which Jani and Muhammad inflicted lathi blows to Ahmed, whereas accused Qassim Phul, Hassan Phul, Ali Mir Shah and Sheikhu inflicted hatchet and lathi blows to Phul Chandio and body-guard of Aslam Rahoo fired from his Kalashnikov at them and Gulloo Rahoo fired from his pistol at them. Punhoon Chandio sustained burst of Kalashnikov on his back and died on the spot. Thereafter accused persons went away and the complainant brought the dead body of Punhoon Chandio and injured Phul Chandio and Ahmed Samoon, at Shaheed Fazil Rahoo Hospital and went to lodge the report. Police after arresting and finalising investigation charge sheeted them in the Court of law. Application for grant of bail of the applicants has been rejected by the learned STA Court No. II, hence they have approached this Court.
2. We have heard Mr. Abdul Mujib Pirzada, learned counsel for the applicants, who has contended that there are no reasonable grounds to believe that accused/applicants are guilty of scheduled offence; that accused/applicants have been falsely implicated in the case at the instance of complainant party; that the alleged incident, on the face if it, is a sudden flare up and a result of altercation, as such common intention cannot be gathered; that neither the incriminating articles have been recovered from the accused nor the empties of Kalashnikov have been recovered from the place of wardat; that complainant Ghulam Mustafa and injured witness Phulo have been examined in the trial Court, who have not implicated the accused/applicants in their evidence.
According to Mr. Pirzada, role assigned to applicant/accused Jani is that he had caused lathi blows to Ahmed (which are simple in nature), role assigned to accused/ applicant Muhammad is that he had caused lathi blows and Gul Muhammad is alleged to have caused pistol shot injuries and further that medical evidence does not support the case of the prosecution as there is one fire arm injury on the person of the deceased and that principal accused is not applicant in this application.
3. Mr. Pirzada has further contended that accused/applicants were arrested on 10.10.1993 and even after the lapse of more than two years the trial has not been concluded as yet with no fault of the accused/applicants. Mir Pirzada has referred to the following case law.
(1) 1992 SCMR 2192 The State v. Syed Qaim Ali Shah in which the Hon'ble Supreme Court has, in Criminal Appeals No. 221-K and 222-K, filed by the Sate against the grant of bail to the respondents Syed Qaim Ali Shah and Shah Nawaz Junejo by a Division Bench of this Court during the pendency of trial of the above respondents with 12 co-accused persons under, sections 302, 307,120-D, 34, PPC in the Special Court under Suppression of Terrorist Activities Act, XV of 1975 for causing death of 26 persons and injuries to a number of persons on 22.8.1990 in the various localities of Karachi by discriminating firing on the reception camps set up by MQM for according reception to their leader Altaf Hussan, who was to arrive on the above/from London, held, "Criminal Procedure Code section 497 and section 561-A, Cr.P.C. High Court has the power to press into service section 497, Cr,P. C.
With its provisos during the pendency of trial before the Special Court-section 561-A, Cr.P.C. however, can also-be pressed into service in an appropriate case" and his Lordship, Amal Mian, J.
Was pleased to observe as under:- The upshot of the above discussion is that since I have held that provisos 1 and 3 to sub-section (l)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 in the Allied Bank case is required to be modified. The orders appealed against are in consonance with the above view and, therefore, the above appeals are liable to be dismissed and, thus they are dismissed."
(2) 1987.P.Cr.LJ. 737 Gul Muhammad and two others v. The State, in which a Division Bench of this Court consisting of Nasir Aslam Zahid and Ali Madad Shah, J, after hearing the parties, have held as under:- "We may now deal with the objection raised by the learned Additional Advocate-General that in any case bail can only be granted on merits to accused in cases being tried by Special Courts that is if there does, not appear to be any reasonable ground for believing that the accused has been guilty of a Scheduled offence and not on the ground of delay. We are unable to accept this argument. It has already been held by this Court and in several, judgments by the Lahore High Court referred to earlier that the powers of the High Court under section 497, Cr.P.C. Romain unaffected by the provisions of the offences in respect of Banks (Special Courts) Ordinance, 1984, and as the relevant provisions of the Ordinance, 1984 are identical to corresponding provisions in the Suppression of Terrorist Activities (Special Courts) Act, 1975, following the view taken by the Lahore High Court and by this Court, we may observe that the powers of the High Court under section 497,Cr.P.C. To grant bail to an under-trial- prisoner facing trial before a Special Court constituted under the Act of 1975, remain unaffected and for any of the grounds available under section 497, Cr.P,C. The High Court grant bail to such an under-trial- prisoner. In such cases, therefore, the High Court can grant bail to an under- trial- prisoner if his case attracts the third proviso to section 497(1), Cr.P.C.
(3) 1993 P.Cr.L.J.381 Asif Ali Zardari v. The State, in which a Full Bench of this Court consisting of Mamoon Kazi, Cazique Khairi, J. And Muhammad Aslam Arain, J. (as they then were) have held as under:- "The question raised by the learned Advocate in the case of Syed Qaim Ali Shah and it was unequivocally held that the provisions of the- Code of Criminal Procedure which have not been expressly excluded by the provisions of the Suppression of Terrorist Activities (Special Courts)
Act,.1975 will be applicable to the extent that they have been left unaffected. Upon this principle the Honourable Supreme Court came to a conclusion that since the provisions of section 497 as incorporated in the provisions thereto were independent provisions not affected by restrictions placed by sub-section (8) of section 5-A of the said Act, bail could be granted to an accused under the proviso to section 497(1), notwithstanding the said restrictions. In this judgment, of the cases wherein bail was granted to the accused on the ground of delay simpliciter have been referred to by the Supreme Court."
(4) 1995 P.Cr.L.J. 297 Mumtaz and another v. The State, in which the observations of a Division Bench of this Court consisting of my learned brothers Wajeehuddin, J. And Ghulam Haider LakhoJ. Are as follows:- "Consequent upon such examination of statutory law and judicial precedents, e have little doubt that the principles of justice, equity and good conscience, as promulgated in the various provisos of section 497(1) and other procedural sections of the code of criminal Procedure are equally applicable to grants or refusals of bails under sub-section (8) of section 5-A of the suppression of Terrorist Activities Act, 1975 and it is in such perspective of legislative and precedent law that the instant matter of bail has been considered."
4. Mr. Muhammad Sarwar Khan, the learned AAG has opposed the grant of bail to the applicants on behalf of the state and contended that an injured eye-witness Ahmed is still to be examined and that charge sheet against the accused is submitted for an offence under sections 303, Qisas & Diyat Ordinance, as well as 147, 148,149, PPC and in view of the provisions of section 149, all the accused/applicants are liable for an offence under section 30$, PPC and the contention of Mr. Pirzada that accused applicants Jani and Muhammad are alleged to have caused lathi blows and accused/applicant Gul is alleged to have caused pistol shot injuries and all the injuries are simple in nature, therefore, the applicants are entitled for bail is not tenable. This Court at the bail stage cannot appreciate evidence in detail but only tentative assessment of the evidence is to be looked into. Mr. Muhammad Sarwar Khan has contended that under section 10 of the Suppression of Terrorist Activities Act, 1975, the provisions of Criminal Procedure Code are not attracted and accused are facing trial under a special statute and that this Court has no jurisdiction to entertain and decide the bail application. Section 10 of the Suppression of Terrorist Activities Act, 1975 is as follows:-"
10. Act to override other laws: The provisions of this Act shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force."
5. Mr. Muhammad Sarwar Khan has also referred to the case of Hon'ble Supreme Court reported in 1995 SCM R 1249 (Ch. Shujaat v. The State), in which the petitioner sought leave to appeal against the order of the learned Division Bench of the Lahore High Court, by which his bail application was dismissed. Petitioner Ch. Shujaat Hussan was facing trial fan offences under sections 5(6) and 12 in respect of Banks (Special Courts) Ordinance, IX of 1984 and Mr. Sarwar Khan has cited the observation of the Hon'ble Supreme Court, which is as' under:- "A comparison of section 5(6) of the Ordinance with section 497, Cr.P.C, will show that there is departure from the provisions of section 5(6), offence in respect of Banks (Special Courts)
Ordinance, 1984. In this regard reference can be made to section 12 of the Ordinance which provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in the code or in any other law for the time-being in force. Therefore, in cases of conflict between the provisions of the Ordinance and the provisions of the code, the Ordinance will prevail.
The Ordinance being a special law conferring special power and jurisdiction on the special Court and providing a special forum and procedure relating to the trial of the scheduled offences, the code will not affect any provision dealing with such special power, jurisdiction or procedure.
Section 5(6) is couched in a negative language. Where any provision couched in negative language requires an act to be done in a particular manner then it should be done in the manner as required by statute otherwise such act will be illegal."
"It is, therefore, clear that section 5(6) of the Ordinance does not completely oust the applicability of section 497 of the Code in respect of bails and though the rule of sub-section (l)of section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same sub-section have been introduced in subsection (6)of section 5 of the ordinance, which is couched in negative language, no express or implied ouster of the remaining provisions of section 497 of the code can be spelt out from sub-section (6)of section 5 of the ordinance."
"Section 5(6)of the ordinance though not a complete code provides fetter on the power of the Special Court to grant bail but the principles enunciated in section 497, Cr.P.C, and judicial authorities interpreting provisions which do not come in direct conflict with section 5(6) can be pressed in service for grant of bail. A comparative study of section 5(6) of the Ordinance and 497 of Cr.P.C, will show that bail can be refused if there appear reasonable grounds for believing that accused has been guilty of the offence. This is one of the grounds in section 497 for grant of bail.
Therefore, to that extent there does not seem to be any conflict in both the provisions."
But in this case, the case of Syed Qaim Ali Shah and another (supra) was not discussed by the Supreme Court. Even in this case of petitioner Ch. Shujaat Hussan, the Hon'ble Supreme Court granted bail to him with the following observations and thereafter derailed reasons have been recorded by their Lordships: "It is thus clear that if a discretion has been exercised after considering all the facts and circumstances of the case, properly appreciating the questions involved in it, would be a proper exercise of discretion and this Court would refuse to interfere. But it is not a rule that if the High Court has exercised its discretion in granting or refusing bail to a party the Supreme Court would not interfere. Any discretion exercised in violation of the recognised principles of justice is liable to be set aside. A discretion should not be based on whims, inferences, suspicions and mere allegations. In the present case the discretion does not seem to have been properly exercised because inferences were drawn by enumerating allegations without even prima facie examining the effects tentatively. We, therefore, by a short bail as follows:-"
6. This authority, cited by Mr. Sarwar Khan, AAG, in view of the orders of the Supreme Court, is not helpful to the prosecution.
7. We have considered the fact of the case, still witnesses are to be examined by the prosecution in this case, Ahmed admittedly is an injured witness, advisedly we refrain from dilating upon the merits of the case but looking to the circumstances of the case accused/applicants are in custody sina? 10.10.1993 and delay whatsoever occurred has not been due to any act of the accused/applicants or any person acting on their behalf. Furthermore, there is no information on record on behalf of the state whether other criminal cases are pending against the accused/applicants and prosecution has not even alleged that the accused/applicants are either dangerous or hardened criminals. As far as the delay is concerned, we would like to refer the provisions of section 5-A of Suppression of Terrorist Activities Act, 1975, which are as under:- "5A. Procedure of Special Court: (1) On taking cognizance of a case the Special Court shall proceed with the trial from day to day and shall decide the case speedily.
(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.
(3) A Special Court shall not, merely by reason of a change in its composition or transfer of a case under section 4A, be bound to recall and rehear any witness who has given evidence, and it may act on the evidence already recorded.
8. A perusal of the record shows that the accused/applicants are in custody and trial has not been concluded with no fault of the accused/applicants and the trial Court over-looking the provisions of section 5-A has been adjourning the case, we respectfully agree with the rule laid down by the .Superior Courts referred hereinabove and order that the accused/applicants may be released on bail on furnishing solvent surety in the sum of Rs.200,000/-each and PR Bond in the like amount, to the satisfaction of Nazir of this Court.