1. ' WAJIHUDDIN AHMED, J.--On 17-9-1996, D.B.I, comprising Mamoon Kazi, C.J., and Majida Razvi, J., in Criminal Bail Application No,1267 of 1995 made reference to a Full Bench in the following terms:- "The applicant in this case has been charged under section 13(d) of the Arms Ordinance, 1965 for being in possession of MM-30 automatic pistol. Such offence, according to the learned counsel for the applicant, is punishable with imprisonment which may extend to three years or seven years, The learned counsel has placed reliance on an order dated (sic) passed by a Division Bench of this Court in Bail Application No,756 of 1996 wherein bail was granted to the applicant, without even going into the merits of the case, upon the following observations made by the Supreme Court in Criminal Petition No,140 of 1995 Criminal Appeal No,445 of 1995 Ejazur Rahman v. The State:-- 'We have decided to refrain from dilating on the respective contentions raised by the learned counsel for the parties. The offence with which the appellant stands charged, prima facie, falls under section 13(d) of the Arms Ordinance, 1965, which is punishable with imprisonment that may extend to three years or seven years, In either case, the offence does not fall within the prohibitory clause of section 497(1), Cr.P.C. We would accordingly allow him bail in the sum of Rs,50,000 with one surety to the satisfaction of the trial Court'.
2. ' As is evident from the observations, the Supreme Court only appears to have exercised its discretion in a particular case. But, neither it has decided any question of law nor has it laid down any rule to be followed by the High Courts in each case punishable under the said provisions of law.
3. ' However, since the said order has been passed by a Division Bench of this Court, and the present Division Bench is bound by such decision, we would like this question to be decided by a larger Bench, consisting of at least three Judges.
4. ' The office shall, therefore, process the file accordingly for constitution of larger Bench."
5. ' Later, on 19-9-1996, the other cases in the title were also referred to the Full Bench by the same Division Bench. In course of time, the Hon'ble Chief Justice constituted the Full Bench, comprising his Lordship, myself and Majida Razvi, J. We heaid these matters and reserved the same for orders on 13-10-1996. The files have come to me for writing the Order, which would deal only with the question of law referred, the rest of the controversies going to the concerned Division Bench for due determination, based on the facts of each case.
6. ' The question, accordingly, which falls for consideration before the Full Bench is whether the reproduced portion of the order in the Supreme Court case of Ejazur Rehman v. The State (Criminal Petition No,140 of 1995) converted into Criminal Appeal No,445 of 1995) can be construed as deciding any question of law and lays down a "rule to be followed by the High Courts in each case punishable" under section 13(d) of the Arms Ordinance, 1965. Alternatively, whether the Supreme Court, through the above-cited case, has merely "exercised its discretion in a particular case".
7. ' The learned counsel for the applicants contend that Re: Ejazur Rehman lays down a rule of law whereas the learned Additional Advocate-General, Sindh, for the State, urges that it does not.
8. Relying on the cases of Allied Bank of Pakistan and Shujaat Hussain 1991 SCMR 599 and 1995 SCMR 1249 respectively, Mr. K.M. Nadeem, Additional A.-G., maintains that the grant or refusal of bail under the Suppression of Terrorist Activities (Special Courts) Act, 1975, is governed by section 5- A(8) of such Act alone and does not unreservedly entail the considerations, emerging under sections 497 and 498, Cr.P.C. He, however, concedes that both these precedent cases pertain to bails under section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. Even so, relevancy of such cases arises because the language employed in section 5(6) of the 1984 Ordinance is exactly the same as that which finds place in section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the last-mentioned enactment being applicable here.
9. The two provisions being in pari materia may, therefore, imply similar incidents and for such reason the cases of Allied Bank and Ch. Shujaat Hussain can be drawn upon for interpreting the import and effect of section 5-A(8) of the 1975 statute. These provisions run thus:-- "Suppression of Terrorist Activities (Special Courts) Act, 1975. Section 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. ' Offences in Respect of Banks (Special Courts) Ordinance, 1984. Section 5:
(6) 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. ' Now the case of Allied Bank, which was decided by a Full Bench of three Judges, consisting of Nasim Hasan Shah, Rustam S. Sidhwa and Muhammad Afzal Lone, JJ., Rustam S. Sidhwa, J., authoring the judgment, came up for scrutiny before a larger Bench of the Supreme Court in State v. Qaim Ali Shah, 1992 SCMR 2192, the Bench, comprising of Nasim Hasan Shah, Shafiur Rehman, Ajmal Mian, Rustam S. Sidhwa and Sajjad Ali Shah, JJ., In that case Rustam S. Sidhwa, J., writing a separate note, himself came to the conclusion that Re: Allied Bank required review and concluded that section 5-A(8) of the 1975 enactment, being limited in scope, ex facie, could not displace section 497 of the Criminal Procedure Code or subsection (1) thereof, which had a larger scope.
12. Subsection (8) of section 5-A of the Special Act, in such view, only displaces that part of subsection
(1) of section 497, which is in conflict with it. The provisos to section 497(1), Cr.P.C., therefore, did not stand eliminated and besides section 497(2) of the Code, permitting grants of bail, where there were reasonable grounds to believe that the accused was guilty of a non-bailable offence, but it appearing to the Court that there were sufficient grounds for further inquiry into the suit, remained in place. Separate orders in Qaim Ali Shah's case were authored by Ajmal Mian, J., with whom Sajjad Ali Shah, J. (as he then was) agreed and by Shafiur Rehman, J., with whom Nasim Hasan Shah, J. (as he then was) concurred. Ajmal Mian, J. Observed that the provisions of sections 497 and 498 of the Code continued to apply to bails under section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, in so far as those sections of the Code were not inconsistent with the counterpart in the special law. In context, various provisions of the 1975 statute were examined by the Hon'ble Judge in detail. Invocation of Article 2A in the Constitution of Pakistan was also made and it was held that the Courts, while construing statute law, should make efforts to ensure that the Constitutional guarantees, fundamental or human rights and Islamic mandates were kept in view. A still broader base was provided in the separate order subscribed to by Shafiur Rehman and Nasim Hasan Shah, JJ. Shafiur Rehman, J., pertinent to bails, said that none of the remedial powers, enjoyed by the High Court under the Criminal Procedure Code, were curtailed or superseded by the Suppression of Terrorist Activities (Special Courts) Act, 1975, and the only modification made in the exercise of those powers was that such had been made exercisable under the 1975 Statute by a Bench of not less than two Judges, with all its consequences. Several grounds for such conclusion were cited.
13. ' In Ch. Shujaat Hussain's case (supra), to which Saleem Akhtar, Zia Mahmood Mirza and Mir Hazar Khan Khoso, JJ., were parties, Qaim Ali Shah's case did not come to be cited and Re: Allied Bank was followed without any reservations. For our purposes, the material observation appears at page 1261 of the report, which is as follows:-- "9. The criterion for grant of bail as laid down by the Ordinance is not the quantum of sentence provided by P.P.C. The bailable or non-bailable nature of an offence on the basis of punishment is a creation of Code of Criminal Procedure. This part of the provision of section 497 being in conflict with the provisions of the Ordinance, the bail can be granted only if section 5(6) of the Ordinance is satisfied... ... "
14. ' There is, thus, an apparent conflict in the conclusion of the apex Court in Ch. Shujaat Hussain's case and the observations of the same Court in Re: Ejazur Rehman, noticed and reproduced in the reference to this Full Bench. Salient features of Ejazur Rehman's case and implications arising therefrom may be noticed here: ' Firstly, it is a decision on section 5-A(8) of the Suppression of Terrorist Activities (Special Courts)
15. Act, 1975, whereas Ch. Shujaat Hussain's case pertains to section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. Even though the provisions in the two subsections are identical, Qaim Ali Shah's case is closer in proximity to the case of Ejazur Rehman than the matter of Ch. Shujaat Hussain.
16. ' Secondly, Ejazur Rehman's case has not been approved for reporting whereas the other cases have been so approved and, in fact, reported, Mr. K.M. Nadeem, Additional Advocate-General, Sindh, during the course of arguments before us, therefore, somewhat loosely commented that the pearls of wisdom in the unreported case were only meant to be consigned to the archives of the Supreme Court. This was a regrettable remark. It was also said that the reproduced observations of the Supreme Court were merely in the nature of passing observations and did not constitute law declared by the Supreme Court of Pakistan. Besides, relying on Safdar Abbas v. State PLD 1987 SC 467, the learned A.A.-G. Argued that decisions of the superior Courts in criminal matters may not, routinely, be treated as precedents. This may be so. Still, every case, decided on merits, has a ratio decidendi and I am unable to persuade myself to conclude that the ratio in the case of Ejazur Rehman was anything other than the reproduced observations. That constituted law declared on the subject and it did not matter whether the case was certified for reporting or not See Azam Ali v.
17. Custodian of Evacuee Property, PLD 1968 Lahore 149. Article 189 of the Constitution, reproduced below, makes no such distinction:-- "189. Decision of Supreme Court binding on other Courts.--Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan."
18. ' The reliance of the learned Additional Advocate-General on Babu v. Jalaldin PLD 1992 SC 102, to say that certification of a case for reporting is an indication whether or not the case lays down a rule of law bags the facts of that case itself, where the reported and unreported cases referred were found to be consistent. On this very question, in the case of Kamran. v. State (Criminal Bail Application No,999 of 1996), a Division Bench, to which I was a party, made the undernoted comment to which I still adhere:-- "Even as to such case of Ejazur Rehman, Mr. Muhammad Sarwar Khan, A.A.-G., has argued for the State that their lordships have not certified such case for reporting and, therefore, the same does not tantamount to law declared. This is rather far-fetched. Any question of law, decided by the Supreme Court, constitutes law declared within the meaning of Article 189 of the Constitution and all Courts are bound by the declaration. It is immaterial whether a particular case has been reported or not or has been certified to be reported or not and, so long as a question of law is decided by the Supreme Court, that constitutes a declaration of law, binding on all Courts, including this Court. We cannot, therefore, ignore or side track the dictum in Ejazur Rehman's case and shall have to act thereupon."
19. ' Thirdly, during the course of proceedings, it was noted that because no reasons were given for reaching the conclusion, which the Bench in the case of Ejazur Rehman reached, such could be disregarded and the following passage from the judgment of Kaikaus J. In Qaseem-ud-Din v.
20. Province of West Pakistan PLD 1959 Lahore 76 (93) was highlighted:-- "On behalf of the respondents, only the judgment of the Supreme Court of Pakistan in The Punjab Province v. Khizar Hayat Khan Tiwana PLD 1956 FC 200, has been cited in which there is an observation to the following effect: - 'In such matters the Courts are not to question the motives or policy of the Legislature or to refuse to give effect to legislation merely because it appears to be harsh or unreasonable or vindictive.
21. Their plain duty is to ascertain the intention of the Legislature and to carry it out irrespective of the consequences that may ensue to a particular party.'
22. ' Here too there is only an observation without any discussion. I have, however, found an American case in which there is an explanation of the reason why we cannot go into the motives of the Legislature. The case is Soon Hing v. P. Crowley, Chief of Police of the City of San Francisco, 113 U.S. 703, where Mr. Justice Field, delivering the opinion of the Court said:-- 'The principal objection, however, of the petitioner to the ordinance in question is founded upon the supposed hostile motives of the supervisors in passing it. The petition alleges that it was adopted owing to a feeling of antipathy and hatred prevailing in the City and County of San Francisco against the subjects of the Emperor of China resident therein, and for the purpose of compelling those engaged in the laundry business to abandon their lawful vocation, and residence there, and not. For any sanitary, police or other legitimate purpose. There is nothing, however, in the language of the Ordinance, or in the record of its enactment, which in any respect tends to sustain this allegation. And the rule is general, with reference to the enactments of all legislative bodies, that the Courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the Acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be, to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducement for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile.'
23. ' The true reason why the motives of the Legislature cannot be questioned is the impossibility of an inquiry into the motives of a large number of legislators and the chaos which would be created if evidence were allowed to be led as to such motives. If evidence was led as to motives of the legislators, there would be an interminable inquiry with respect to the validity of every Act and it is obvious that the inquiry would be a most unsatisfactory method of ascertaining the truth."
24. From the above, I am unable to conclude that the citation can be taken to mean that a judgment of a superior Court, on a question of law can be disregarded merely on account of the fact that it carries no reasons. A more reasonable approach would be that the learned Judge was only trying to explore the rationale behind the observation. Articles 189 and 201 in the Constitution, which make declaration of law by superior Courts as binding, however, imply no such requirement. I may here be permitted to reflect that the binding nature of dicta of a superior Court arises, speaking generally, not because of any superior wisdom or unqualified higher knowledge, except perhaps what comes from greater maturity and richer experience, of those adorning such a forum. Many a Judges from the Provincial judiciary get elevated to the High Courts and, almost invariably, Judges of the High Courts alone make to the Supreme Court. The binding nature of the dicta envisioned in Articles 189 and 201, therefore, is not an embellishment of personalities simplicitor but carries connotations of judicial propriety and consistency in judicial enunciations. This has to be jealously guarded and any complacency or laxity in approach would denude judicial pronouncements of the essential elements of certainty and predictability at a given point of time.
25. ' Fourthly, while section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, is silent on the question, quantum of sentence is always relevant in criminal cases. It may, therefore, not amount to straining the language of such subsection beyond reasonable limits to say that considerations of quantum of sentence would conceivably still weigh in the matters of bail governed by that subsection. In support of this conclusion, one may only refer to sections 13, 13-A and 13-B in the Arms Ordinance. Such occurred consecutively. The quantum of sentences in the latter two sections was greater than in section 13. Lately, section 13-A was re-enacted/recast per Pakistan Arms (Amendment) Ordinance (XXXVIII of 1996). The two parts of such modified section carried severer punishments. Surely, if general principles apply, as said in the case of Qaim Al)
26. Shah, section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, cannot be applied with similar force and indiscriminately for the grants or refusals of bails in these distinct provisions.
27. ' Lastly, different Division Benches of this Court have followed the reproduced observation in the case of Ejazur Rehman in granting bails to various accused persons under section 13(d) of the Arms Ordinance. Such, inter alia, are Muhammad Zahid v. State and Waseem v. State Criminal Bail Applications Nos. 1106 of 1995 and 753 of 1996, respectively (Nazim Hussain Siddiqui and Agha Rafique Ahmad, JJ.), Maqbool Ahmad v. State, Criminal Bail Application No,1248 of 1996 (Wajihuddin Ahmed and Hamid Ali Mirza, JJ.), and Maqbool Ahmad v. State, Criminal Bail Application No,1276 of 1995 (Amanullah Abbasi and Dr. Ghous Muhammad, JJ). Not insignificantly, in a recent pronouncement of another Full Bench (Nazim Hussain Siddiqui, Rasheed A. Razvi and Agha Rafiq Ahmed Khan, JJ.) of this Court viz. Abdul Khalil v. State, Criminal Bail Application No,1329 of 1995 (1997 PCr.LJ 198) etc., the quoted observation of the Supreme Court in Re: Ejazur Rehman was cited as a precedent (paras. 25 and 26 of the order authored by Nazim Hussain Siddiqui, J.).
28. ' It is, therefore, to be seen as to how the observations in the case of Ejazur Rehman (supra) are to be interpreted. One manner of resolving the controversy is to ask the question whether such can be construed to be laying down that, because of quantum of sentence, all cases covered by section 13(d) of the Arms Ordinance shall automatically become amenable to grants of bail generally. In other words, to put the matter bluntly, does the order in question confer a general amnesty for seeking bails. The answer is an emphatic No, Such, it would seem, only postulates the existence of a discretionary power to grant bails in cases covered by section 13 of the Arms Ordinance, 1965. This is, what was, in effect, said in the case of Nuzhat Fatima v. State Criminal Bail Application No,781 of 1996 (PLD 1996 Kar. 559), by a Division Bench of this Court to which I happened to be a party. In turn, when we examine the case of Ejazur Rehman, minutely, we find that such case proceeded upon allegations of mala fides about which the Supreme Court studiously declined to express an opinion but exercised its discretion of granting bail in the circumstances of the case, taken as a whole.
29. Indeed, more or less, identical was the position in Mir Abbas Ali Abidi v. State, Criminal Petition No,58-K of 1996, decided by the Supreme Court where the Bench consisted of Ajmal Mian, Saleem Akhtar and Abdul Hafeez Memon, JJ. Such was a case under section 13(e) of the Arms Ordinance.
30. There the High Court had granted bail to the petitioner in the case under section 399/402, P.P.C. But declined similar relief in the connected case under section 13(e) aforesaid on the ground that it was the petitioner himself who had led the police to the recovery of substantial quantity of unlicensed arms from near his house. Contentions before the Supreme Court were that bail having been granted in relation to the indictment under section 399/402, P.P.C. There was no justification to refuse the same in the case under section 13(e) of the Arms Ordinance, no witness from the public was associated in the recovery, in spite of the police having advance information of possible recovery and that the recovery was not from the house of the petitioner but from a place near such house. Bail was granted in relation to the offence under section 13(e) ibid. Upon making the following observations:-- "We would refrain from making any observation regarding the merit of the contentions raised, lest it may prejudice the case of the petitioner or the defence at the trial which is yet to begin. Suffice it to say, we find it a fit case for bail."
31. ' Thus, here again, it would seem that bail was granted in the exercise of the Court's discretionary power and upon general principles, which were recognised in the case of Qaim Ali Shah, in detail referred to above.
32. ' Now, we come to the case, which led to the making of the .Present reference before the Full Bench.
33. Such arose when an order of a Division Bench of this Court in Criminal Bail Application No,756 of 1996 was cited before D.B.I. And there bail was shown to have been granted, following upon the above dictum of the Supreme Court in the case of Ejazur Rehman. That bail order, being a short one, I venture to reproduce here:-- "25-6-1996.
34. ' (Perforated partly because of passing of the binding string).--The facts of the case need not be recapitulated as the same are duly available in the order of the learned Presiding Judge of the Special Court whereby the applicant was denied bail.
35. ' The applicant was arrested on 25-2-1996 and has been indicted under section 13(d) of the Arms Ordinance. No witness has so far been examined in the case thereby negating the mandate in section 5A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, which requires that on taking cognizance of a case, the Special Court shall proceed with the trial from day to day and shall decide the case speedily, in no case adjourning the trial for any purpose except when necessary in the interest of justice and granting no adjournment exceeding two days at a time.
36. Besides, the requirements of section 103, Cr.P.C. Apparently, also do not seem to have been complied with inasmuch as no independent or respectable inhabitants of the locality were associated with the search, that provision having been extended to personal searches conducted under the Arms Ordinance, 1965 by some decided cases, which, inter alia, include Ashiq Hussain Shah v. The State 1990 ALD 20 and Zulfiqar v. The State 1991 PCr.LJ Note 275 at p .193 .
37. ' However, at this stage of the proceedings we need not reflect on the merits of the controversy except to the extent referred to above and would, instead, rely on two unreported cases of this Court, namely, Muhammad Zahid v. The State Criminal Bail Application No,1106 of 1995 and Waseem v. The state Criminal Bail Application No,753 of 1996, which in turn are based on the Supreme Court order in Criminal Petition No,140 of 1995 (Criminal Appeal No,445 of 1995) Ejazur Rahman v. The State, where the following observation occurs:-- 'We have decided to refrain from dilating on the respective contentions raised by the learned counsel for the parties. The offence with which the appellant stands charged, prima facie, falls under section 13(d) of the Arms Ordinance, 1965, which is punishable with imprisonment that may extend to three years or seven years, In either case, the offence does not fall within the prohibitory clauses of section 497(1), Cr.P.C. We would accordingly allow him bail and direct that he should furnish bail in the sum of Rs,50,000 with one surety to the satisfaction of the trial Court.'
38. ' In terms of the foregoing we would admit the applicant to bail in the sum of Rs,50,000 with one surety and P.R. Bond in like amount to the satisfaction of the trial Court.
39. ' Application disposed of.
40. (Sd.)
41. Wajihuddin Ahmed, J.
42. (Sd.)
43. Amanullah Abbasi, J."
44. ' Necessary examination of the reproduced bail order would show that emphasis in the case was laid upon non-compliance of the principle in section 103, Cr.P.C. And the mandates in section 5- A(1) and (2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. However, not considering it prudent to grant bail upon such basis specifically, the general principles and discretionary power visualised in the case of Ejazur Rehman were invoked.
45. Having said as much, it seems to me that all that the precedent in Ejazur Rehman's case implies is the recognition of the existence of a general power to grant bail, conditioned where necessary by quantum of sentence, in matters covered by section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, and a corresponding discretion to be modelled in the circumstances of each case. It does not, let me be clear, even though such may be on pains of repetition, confer any general amnesty or any blanket exercise of power, irrespective of the circumstances of a particular case.
46. (Sd.)
47. WAJIHUDDIN AHMED, J.
48. ' MAMOON KAZI, C.J.--The question relating to the interpretation of the provisions of subsection (8) of section 5-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975 arising from the judgment of the Supreme Court in Criminal. Appeal No,445 of 1995 (Ejazur Rehman v. The State) was referred to a Bench of three Judges of which I am one of the membeRs, The various issues arising in this case have been elaborately dealt with in the judgment of my learned brother, Wajihuddin Ahmed, J., which is proposed to be delivered in this case, however, I would like to add a few words of my own.
49. The question as to power of the High Court to grant bail to a person accused of a scheduled offence was considered by the Supreme Court in Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599. Although, it was the effect of the provisions of section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984) which was determined by the Supreme Court in the said judgment, but similar language has been employed by the Legislature in the said provisions as has been employed in section 5-A(8) of the Suppression of Terrorist Activities (Special Courts)
50. Act, 1975. However, thereafter, in The State v. Syed Qaim Ali Shah 1992 SCMR 2192, section 5-A(8) itself came for examination before the Supreme Court and as is clearly indicated by the two judgments, it was noticed therein that the provisions of section 497(1) of the Code of Criminal Procedure were in conflict with those of the said special enactments and in such case, the former had to give way to the said provisions of the two special enactments. A more or less v similar question was once again raised before the Supreme Court in Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249 and it was again held in the said case that section 5(6) of Ordinance IX of 1984 had imposed fetters on the discretion of the Special Court to first find as a fact that, there appeared to be no reasonable ground for believing that the accused was guilty of a scheduled offence, even where the punishment provided for such offence was not severe such as death, imprisonment for life or imprisonment for a term extending to ten yeaRs, It was further' observed that although the provisions of section 497, Cr.P.C. Were not completely ousted by the said provisions of the special enactments, nevertheless criterion for grant of bail in case of a scheduled offence could not be the quantum of the sentence provided for in the relevant law. However, in Ejazur Rehman's case, bail was granted to the accused on the ground that the punishment provided for the offence with which the accused had been charged could extend only to three years or seven years, and since the case of the accused did not fall within the purview of the prohibitory clause of section 497(1), Cr.P.C. Bail could be granted to the accused. It is pertinent to point out that neither the merits of the case were considered by the Supreme Court in this case nor any reference was made to the provisions of section 5-A(8) of the Special Law. Therefore, although discretion was exercised by the Supreme Court in the said case in favour of the accused, it did not lay-down any rule which may be followed by the High Courts or their subordinate Courts. If there was any intention to make a departure from the view earlier held by the Supreme Court in the cases decided by it, reference to which has already been made herein, it would have expressed itself more explicitly. However, in Ejazur Rehman's case, the Supreme Court. Did not even refer to its earlier judgments on the point. This case was also noticed by Nazim Hussain Siddiqui, J., in his judgment in Criminal Bail Application No,1329 of 1995 and others, which were heard by a Bench of three Judges of this Court, however, the question before the Bench was, whether the provisions of section 8 of the Suppression of Terrorist Activities (Special Courts) Act relating to burden of proof, could be invoked by the Court while granting bail to the accused. Article 189 of the Constitution, no doubt, places an obligation on the subordinate Courts to follow the law laid down by the Supreme Court, however, as has been pointed out earlier, the Supreme Court did not lay down any law in Ejazur Rehman's case. On the other hand, the law laid down by the Supreme Court in the earlier decisions cannot be overlooked by the High Court.
51. I am, therefore, clearly of the view that the observations made in Ejazur Rehman's case cannot be regarded as binding on this Court in terms of Article 189 of the Constitution. The bail applications pending before this Court where the applicant has been charged with a scheduled offence may, therefore,be disposed of in accordance with the principles laid down by the Supreme Court in the earlier cases, depending upon the facts of each case.
52. (Sd.)
53. ' MAMOON KAZI, C J.
54. ' I agree.
55. (Sd.)
56. ' MRs, MAJIDA RAZVI, J.
57. ' The applicant faces trial under section 13(d) of the Arms Ordinance before Special Court-I (STA), Karachi, Bail was refused to him by such Court on 22-11-1995. Hence the present bail application.
58. ' As to facts, a mauser was recovered from the possession of the applicant at 9-30 p.m. On 21-9- 1995 of which he was unable to account by production of a licence. Mashirs of recovery, however, are police officials alone giving rise to a question whether or not requirements in section 103, Cr.P.C.
59. Have been satisfied. What is more, while the case has been pending since 21-9-1995 not more than two witnesses have been examined, the provisions of section 5A(1) and (2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, requiring a day to day trial and no adjournments except in the interest of justice, notwithstanding.
60. As to the concept of grant of bail in such-like matters and how the discretionary powers of the superior Courts can be invoked, reference may be made to the pronouncements of the Supreme Court of Pakistan in State v. Qaim Ali Shah 1992 SCMR 2192, Ejazur Rehman v. The State (Criminal Petition No,140 of 1995 converted into Criminal Appeal No,445 of 1995) and Mir Abbas Ali Abidi v.
61. State (Criminal Petition No,58-K of 1996). Mention may also be made to Full Bench decisions of this Court in Shakeel v. State Criminal Bail Application No,1073 of 1995 (PLD 1997 Kar. 172) and Abdul Khalil v. State etc. Criminal Bail Application No,1329 of 1995 and others (1997 PCr.LJ 198). We may, likewise further draw upon Division Bench decisions of the Lahore High Court and this Court respectively in Zulfiqar v. State 1991 PCr.LJ Note 275 at p.193 and Kamran v. State Criminal Bail Application No,999 of 1996 (PLD 1997 Kar. 484). The case of Ejazur Rehman v. State (supra), it may be added here, came up for construction before a Full Bench of this Court in Dhani Bux v. State etc. (Criminal Bail Application No,1267 of 1995 (PLD 1997 Kar. 464) and others) and the same accordingly, is to be construed in line with the majority opinion in the said Full Bench case.
62. ' In the circumstances, and briefly referring to the applicable case-law as above, we admit the applicant to bail in the sum of Rs,1,00,000 (Rupees one hundred thousand) with P.R. Bond in like amount to the satisfaction of the trial Court.