1. ' We have heard the learned counsel. The facts of the case need not be reproduced in any great detail as the same find due mention in the order of the learned Presiding Judge of the Special Court dated 9-6-1996. Recovery is of a .30 bore pistol together with a magazine containing two bullets. Mashirs are police officials alone while the rule codified in section 103, Cr.P.C. At bail, has been extended to personal recoveries as well for which ready reference may be made to Ashiq Hussain Shah v. State, 1990 ALD 20 (Lahore S.B.) and Zulfiqar v. State, 1991 PCr.LJ Note 275 at p.193 (Lahore D.B.). Since recovery was made at 18-50 hours in a populated locality it, therefore, remains to be seen whether conditions subsisted for bypassing the requirements in the principle underlying section 103, Cr.P.C. - ' As against the foregoing proposition, it has been pointed out by Mr. Muhammad Sarwar, A.A.G, that, in their pristine form, the provisions of section 103, Cr.P.0 are limited to the search of a place as distinct from search of a person, the last of which is not visualized in the section. Our attention has been drawn to the Supreme Court dictum in Mushtaq Ahmed v. State PLD 1996 SC 574, where, while summarising the position emerging under section 103, Cr.P.C. It has been observed: "Section 103, Cr.P.C. Relates to search of a place situate in a locality and not a search of a person". This obviously summarises the codified rule in section 103, Cr.P.C. Nonetheless, the rule itself is a time honoured rule of prudence and carries an obvious element of caution. An examination of Mumtazuddin v.
2. State, PLD 1978 SC 114, Muhammad Afzal v. State, 1983 SCMR 1, Sultan v. State, 1987 SCMR 1177, Yameen Kumhar v. State, PLD 1990 Karachi 275, Yar Muhammad v. State, 1992 SCMR 96, and Mirza Shah v. State, 1992 SCMR 1475, would lead to the conclusion that recoveries in many a case, at times constituting direct or only evidence in a case and at others' corroborative evidence, have to be viewed with great circumspection. While, undoubtedly, the rule incorporated in section 103, Cr.P.C., strictly applies to search of a place as distinguished from search of a person, such is one of common sense and prudence and in practice has been extended also to personal searches. The object is obvious namely, to forestall chicanery, manipulation and concoction. Thus in Muhammad Azam v. State PLD 1996 SC 67, apparently, the only five-member Bench Supreme Court case on the subject, while it was said that the requirement in section 103, Cr.P.C. Of examining two witnesses from the locality would not apply to a running vehicle, the observation was conditioned by the vehicle being "stopped at some place where there are no houses in the vicinity and search is made for the purpose o recovery". Even so, as laid down in Muhammad Khan v. Dost Muhammad PLD 1975 SC 607; Rehan v. State 1976 SCMR 72, Muhammad v. State PLD 1981 SC 635, Shabbo v. State, PLD 1990 SC 1083, Tasleem Khan v. State PLD 1990 SC 1088, Syed Muhammad v. State PLD 1990 SC 1176; Zardad v. State 1991 SCMR 458; Arshad Zubair v. State 1993 SCMR 2059, Zahir Khan v. State 1995 SCMR 1793 and Muhammad Azam v. State PLD 1996 SC 67, each case of compliance or otherwise with the mandate in section 103, Cr.P.C. Has to be judged on its own facts and circumstances. Thus, not to mention situations where mere principle in section 103, Cr.P.C. Is invoked, as in relation to personal searches, even where the pristine provisions of the rule apply, a bare absence of two independent respectable witnesses of the locality for the search may not be fatal in all cases nor vitiate the proceedings ipso facto. If explanation is fourthcoming such as constraints of time and place, urgency of the occasion or even unwillingness of those expected to attest recovery in line with section 103, Cr.P.C., the Court is expected to give due credence to all admissible evidence.
3. Reliance on the point may be placed on Javed Sheikh v. State 1990 PCr.LJ 1689. Of the reluctance/non-availability of those expected to associate with recoveries, common examples would be cases of robbery, dacoity, kidnapping for ransom etc. ' The overall impression gathered from the long line of authority, therefore, is that while the pristine concept in section 103, Cr.P.0 applies to searches of places alone the rule has been extended to personal searches as well, the rule being a rule of procedure rather than evidence and based on the principles of equity, justice and good conscience. Indeed, where a person is to stand condemned or exonerated solely upon recoveries made from him, it may, on principle, amount to going a little too far to contemplate a conviction totally based on the evidence of police functionaries, except where a cogent and plausible explanation for such exclusive evidence is forthcoming. Such may consist, inter alia, of the search being conducted at a time where no independent witnesses could be available or at a place, which was absolutely deserted or found virtually uninhabited. Explanation may even be that no independent respectable person of the locality, when the personal search came to be conducted, was prepared to witness the recovery but then credible basis of such a plea may have to be laid. In matters of recovery from a person, which recovery alone may constitute evidence in a cause, such as that occasionally falling under the Arms Ordinance to, unreservedly, accept attesting evidence of police functionaries alone, may indeed amount to making the prosecution itself judge of its own cause, something which is impermissible according to the basic norms of administration of justice. As is only too well-known, no one can be judge in his own cause. Therefore, we are inclined to think that no blanket cover is envisioned for recoveries being witnessed by police officials alone, particularly where the entire evidence in a case comprises of such evidence simpliciter. Doubtlessly, matters of this genus shall have to come up for closer scrutiny when the trial unfolds and then the rule laid down in Javed Shaikh v. The State 1990 PCr.LJ 1689, as apparently, approved in Muhammad Azam v. State PLD 1996 SC 67, may be invocable. Even so, in cases of recovery where police witnes alone figure in the attestation, it would be difficult to say, upon the existing dicta, that such cases would not qualify as cases requiring further inquiry.
4. ' The next contention of Mr. Muhammad Sarwar, A.A.-G., is that section 5-A(8) in the Act is couched in negative language and where negative language` is employed in a statute, the act required to be done is to be done in the particular manner alone and not otherwise. A Bench of this Court had occasion to examine such question in Mumtaz v. State 1995 PCr.LJ 297, and the conclusion was that the phraseology used, conditioning and controlling the grant of bail in section 5-A(8) of the Suppression of Terrorist Activities Act and in the prohibitory clause in section 497(1), Cr.P.C. Was substantially similar. This leads to an inference that where bail cannot be granted under the prohibitory clause, aforesaid, in like manner, it cannot be granted in cases covered by section 5- A(8) ibid. However, in the said prohibitory clause under section 497(1), Cr.P.C. An element of discretion still vests in the Court and such, likewise must be deemed to vest in cases falling under section 5-A(8) of the 1975 statute. Another common aspect of these two provisions is that the prohibition for the grant of bail extends only to such cases, where reasonable ground exists for believing that an accused is guilty of the commission of the relative offence complained of. Where such reasonable ground does not subsist, the discretion of the Court should come into play with full force. This, we think, is a complete answer to the argument advanced.
5. ' Another aspect, which must be referred to in the context of section 5-A(8) above is the subsistence of section 5-A(1)&(2) in the same Act, requiring that the trials under the Act are to proceed from day to day and no adjournment is to be granted except where that is in the interest of justice, with a further rider that no adjournment shall extend beyond the period of two days at a time. Because subsection (8) of section 5-A in the Suppression of Terrorist Activities (Special Courts) Act, 1975 follows upon subsections (1) and (2) of the same section, in order to cater to the prohibition in the grant of bail under such subsection (8) it is expected to be ensured that the trial has substantially confirmed to the mandate in subsections (1) and (2) of section 5-A. If that be not so the prohibitory provision in subsection (8) of the section would to that extent, stand diluted. This, therefore, is another principle, which is to be kept in mind while considering bail applications, covered by section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. We are fortified in this view by a Full Bench decision of this Court in Abdul Khalique v. State PLD 1990 Karachi 448. That was also a case under the Suppression of Terrorist Activities (Special Courts) Act, 1975. There, while this Court found power to suspend a sentence on appeal barred under section 7 of the Act, it, inter alia, concluded that where such an appeal could not be taken up and decided within the time prescribed, the prerogative under section 561-A, Cr.P.C. Could be resorted to.
6. Relevant passage from the judgment is this:-- "For the facts and reasons mentioned above, on the question of interpretation of section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, my considered view is that this section clearly provides that from conviction under the said Act appeal can be heard by a Division Bench of the High Court but during the pendency of the appeal jurisdiction is barred in respect of suspension of sentence and grant of bail under section 426, under section 491 and under section 498, Cr.P.C. As well as no order can be passed under revisional jurisdiction nor any order can be passed with regard to transfer of a case from Special Court. This construction is so placed on section 7 in the said Act keeping in view preamble of the Act and other provisions, which manifest the intention of the Legislature that cases of sabotage, subversion and terrorism in the scheduled offences are to be tried speedily and their appeals are also to be disposed of expeditiously within three months. For that reason, Legislature intently has deprived Court of Appeal from power of grant of bail under section 426, Cr.P.C. During pendency of appeal. Since inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Is neither specifically barred nor impliedly, the same is available to pass such orders which may be necessary to give effect to any order under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice in appropriate case of hardship. Hardship case may include a case in which appeal is not disposed of within three months or order of bail is to be passed in order to secure the ends of justice."
7. ' In the instant case, the learned counsel for the applicant maintains that while the arrest was made on 11-5-1996, let alone evidence being rendered even the charge has not yet been framed.
8. ' Yet another argument of the learned counsel for the State is that section 8 of the special law has shifted the burden of proof from the prosecution to the accused. Such section, however, is not in absolute terms. For facility of reference, we may here reproduce section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 which is as under:-- "8. Burden of proof.--Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence or is apprehended, in circumstances which lead to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
9. ' It will at once be seen that the presumption under the section arises only if "possession" or "control" of the weapon is established or the accused "is apprehended in circumstances which tend to raise a reasonable suspicion that he has committed such offence", in which event "he shall be presumed to have committed the offence unless he can prove that he has not in fact committed the offence".
10. The presumption, therefore, depends on an ex facie proof of "possession", "control" or apprehension in circumstances raising a "reasonable suspicion". Reasonableness, in turn is linked with objective satisfaction of the Court. These are essentially matters for trial. However, compliance with procedural requirements, in order to allow the presumption to arise may also be examined tentatively for the purposes of bail.
11. ' It has also been argued for the State that grant of bail is not to be considered favourably under section 5-A(8) above, solely on account of delay, if any, in the conduct of the trial and if benefit of delay is to be extended then, in accordance with the dictum in Qaim Ali Shah's case, the delay must be equal to the statutory requirements in the applicable provisos of section 497(1). Cr.P.C. As said earlier, the 1975 statute is a special law and while, undoubtedly, in view of the dictum in Qaim Ali Shah's case, an accused would be entitled to the benefit of statutory delay, it cannot be said that a delayed trial, in patent disregard of subsections (1) and (2) of section 5-A of the Suppression of Terrorist Activities Act, may not be used to extend relief of bail to the affectee under section 5- A(8). We may add that if the various postulates in the special law and, more particularly, under section 5-A(8) of the Act are to be given effect to, as prescribed, then all such requirements, including those under subsections (1) and (2) of section 5-A and section 8, regarding ex facie proof and recovery, have also to be strictly adhered to and if the various steps in the proceeding do not satisfy the mandates in the Act, surely, the discretionary benefit of bail under section 5-A(8) cannot alone be conditioned and relief denied to an accused person.
12. ' Furthermore. The rule invoked in the Supreme Court per Ejazur Rehman v. State (Criminal Petition No,140/95 converted into Criminal Appeal No,445/95) also comes into play where the prosecution falls under the Arms Ordinance. The rule laid down in Ejazur Rehman's case is as follows:-- "8. 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 and direct that he should furnish bail in the sum of Rs,50,000 with one surety to the satisfaction of the trial Court."
13. ' The learned A.A.-G., however, has urged that under section 5-A(8) ibid. There is no concept of quantum of punishment whatsoever as in section 497(1), Cr.P.C. And, therefore, the discretion based on a lesser quantum of punishment is not attracted to the cases falling under the special law. There may be some substance in the argument because respectfully, as we have stated, the terminology in section 5-A(8) of the 1975 statute is synonymous with the prohibitory clause in section 497(1), Cr.P.C. And the principles for grant of bail in either provision have to be equally stringent. This, with respect, arises because a scheduled offence, falling under section 5-A(8) of the Act is equivalent to an offence covered by the prohibitory clause in section 497(1), Cr.P.C. And the punishment involved for a scheduled offence, even though lesser, may attract similar treatment, as visualized by the prohibitory clause in section 497(1), Cr.P.C. However, on that question, we can say no further and are bound by Article 189 of the Constitution to follow the dictum in Ejazur Rehman's case supra. 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 declaratie 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.
14. ' For all the aforesaid reasons, we find the applicant entitled to grant of bail and admit him to the same in the sum of Rs,50,000 with P.R. Bond in like amount to the satisfaction of the trial Court.