' AMANULLAH ABBASI, J.---The F.I.R., in this case was registered on 30-8-1994 for offences under section 13-D, Arms Ordinance. The complainant S.H.O., S.I.P., Safdar Sultan of P.S. Orangi Extension Karathi stated that on that day he had left P.S. In search of accused of Crime No,186/94 for an offence under section 353/332/34 P.P.C., read with section 324, Qisas and Diyat Ordinance, alongwith SIP Ghulam Muhammad, ASI Najmuddin, SIP Mukhtar Ahmed and other officials in official mobile. On receipt of spy information he proceeded to house No,K-231 Millat Colony, Sector 11, Orangi Town, Karachi. They reached there at about 9-00 hours where he saw four persons standing behind a wall who started running on seeing police party. The police surrounded them and on interrogation they disclosed their names as 1. Shakeel son of Muhammad Ismail, who had SMG Rifle bearing No,18247744 Code No,47944 with loaded magazine having four live cartridges,
2. Haneef son of Abdul Hameed produced one .32-Pistol from fold of his Shalwar with four live cartridges, 3.
Zaffar Ahmed son of Babu Chand who had a Pistol of 38-bore and 4. Muhammad Arshad son of Ghulam Muhammad, who produced (inreadable).
' After usual investigation the accused were challaned in the Special Court I, S.T.A., Karachi. The present applicant submitted bail application there which was rejected by the Judge of said Court on 31-8-1995.
' The learned Advocate for the applicant has requested for bail on the ground that the applicant has remained in custody since 30-8-1994 and the offence is not punishable even up to 10 years.
The delay in the prosecution of case cannot be attributed to applicant. The applicant was involved due to enmity with S.H.O. Who is complainant. He relied on decisions reported in (1) 1992 SCMR page 2192, (2) 1987 PCr.LJ page 737 and (3) 1993 PCr.LJ pages 7.81 and 802.
' Mr. Sarwar Khan, A.A.-G., submitted that section 5 of the Criminal Procedure Code lays down that all offences shall be investigated, enquired into and tried in accordance with provisions of Criminal Procedure Code. The same section in Part II clarifies that this will be subject to any enactment for the time being in force regulating the trial under Special Law. The ordinary criminals are tried for offences under Penal Code whereas for trial of serious offences the Suppression of Terrorist Activities (Special Courts) Act, 1975 was promulgated. The Preamble of the said Act makes it clear that this Act was promulgated to suppress acts of sabotage, subversion and terrorism whereas Cr.P.C., had different purpose. He referred to decision reported in 1995 SCMR page 1249 wherein their Lordships have been pleased to hold that in cases of conflict between the provisions of the Ordinance and the provision of Code, the Ordinance will prevail. He submitted that it is rule of interpretation that the provision of Special Law is to prevail. Therefore, the bail application is to be decided in accordance with section 5-A(8) of S.T.A. Act, 1975. He further submitted that section 10 of this Act further clarifies that the provision of this Act shall have effect notwithstanding anything contained in the Code. He further submitted that there have been decisions on this point but the latest decision mentioned by him clarifies that the provision of Special Law is to prevail, therefore, the bail as requested cannot be granted unless the condition mentioned in section 5-A(8) is satisfied. He further submitted that there is statutory presumption in section 8 of the S.T.A. Act that it shall be presumed that the accused has committed the offence unless he can prove that he had not in fact committed the offence. So according to him section 5-A(8) read with section 8 makes out a prima facie case against the applicant/accused and.The provision of section 497 Cr.P.C., cannot be imported to make the general law applicable to special law.
' The points that have been raised by learned State Counsel have been subject-matter of decisions of superior Courts. The learned Advocate for applicant has maw. On decision reported in 1992 SCMR page 2192. This is famous case of State v. Syed Qaim All Shah, wherein the point agitated on behalf of the State has been resolved. The relevant portion in paragraph 19 of the said judgment is as under:--- "19. The review of the above cases indicates that there seems to be unanimity of view among the Sindh and Lahore High Courts on the factum that since section 497, Cr.P.C., does not figure in subsection (1) of section 7 of the Act and section 10(1) of the Ordinance, the High Court has the power to press into service above section 497, Cr.P.C., with its provisos during the pendency of trial before the Special Court. The above view seems to be in line with the reasoning of Salahuddin Ahmed, J., in the case of Choudhry Zahoor Illahi (supra), which was concurred with by Muhammad Akram and Muhammad Gul, JJ., I am inclined to hold that the above view appears to be proper.
The fact that in subsection (1) of section 7 of the Act, sections 426, 491 and 498, Cr.P.C., are mentioned, the application of which has been expressly excluded and not section 497, Cr.P.C. Lends support to the conclusion that what was intended to have been excluded has been expressly excluded. Salahuddin Ahmed, J., while construing clause (b) of subsection (1) of section 13 of Ordinance XXX which is in pari materia with subsection (1) of section 7 of the Act adopted the above reasoning by pointing out that there was no necessity for the Legislature to have mentioned section 491 of the Code of Criminal Procedure alone in above provision and not to have mentioned sections 497 and 498 of the Code if they were intended to have been excluded. The above construction seems to be in consonance with the well-settled principles of interpretation of statute."
' His Lordships Mr. Justice Rustam S. Sidhwa, J., in paragraph 8 of judgment has ruled as under: "8. The same position prevails in respect of bails sought in respect of cases under the Act. Sections 5-A(8) and 7 of the Act being almost parallal with sections 5(6) and 10 of the Ordinance, the view taken in Allied Bank of Pakistan would prevail here as well. It is therefore, clear that section 5-A(8) of the Act does not completely oust the applicability of section 497 of the Code in respect of bails at the trial stage.
9. However, the question whether the provisions of the first and third provisos to subsection (1) of section 497 of the Code can be held to be available to the Special Courts or the High Court, requires re-appraisal. Basically the matter revolves round subsections (8) and (9) of section 5, subsection (1) of section 7 and section 10. The resolution of the matter depends upon a proper interpretation of these and other provisions of the Act and not on interpretation alieunde to be drawn from other enactments which are not in pari materia. Having given deep thought to the matter, I have come to the conclusion that the view I took in the Allied Bank's case requires review for reasons which I propose to set out below."
' His Lordship has further been pleased to rule as under: "Thus subsection (8) of section 5-A would not displace the provisos appearing in subsection (1) of section 497 of the Code. The provisos are intended to relax severity of the rule stated in subsection
(1) of section. 497 of the Code and are based on grounds of humanness, compassion and social justice, to prevent the abuse of the process of the Court and to prevent undue operation working against the sick, the infirm, the weaker sex and those immature in age. The conflict between the two provisions cannot be resolved by eliminating the provisos. Penal provisions must be construed strictly to maintain the relief giving provisions, unless the strict intention to eliminate them is clear and unequivocal. In the event of somewhat conflicting or defective drafting, where such a clear intention cannot be spelled out, the benefit of the proviso cannot be allowed to be dropped."
The benefit of provisos to section 497, Cr.P.C., are available to accused in cases tried by Special Courts S.T.A. The learned State Counsel has referred to decision reported in 1995 SCMR page 1249.
The paragraphs 8 and 9 of this judgment are as under:- "8 A comparison with section 497, Cr.P.C. Will show that there is departure from the said provision. 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 .... (Emphasis supplied).
"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."
' In Qaim Ali Shah's case their Lordships have been pleased to rule that High Court has the power to press into service above section 497, Cr.P.C., with its provisos during the pendency of trial before the Special Court. We feel that the provisions of section 5-A(8) of S.T.A. Act cannot be inferred as repealed by virtue of decision in Qaim Ali Shah's case. The provision of section 5-A(8) remains intact but the benefit of provisos to section 497, Cr.P.C., can be pressed into service during the pendency of trial before the Special Court, S.T.A. Therefore, the first step is to decide the bail application in accordance with requirement of section 5-A(8) and in addition the provisions of section 497 Cr.P.C., will have to be kept in consideration, but this has been clarified by their Lordships in decisions reported in 1995 SCMR page 1249. The relevant portion is on page 1262 in paragraph 10 which is as under:- "10. Section 5(6) 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 these 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 sections 5(6) and 497 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."
As their Lordships have decided the issue and in the light of abovementioned rule we come to the conclusion that section 5-A(8) of S.T.A., Act though not a complete Code provides fetter on the power of Special Court to grant bail but the principles enunciated in section 497, Cr.P.C., can be pressed in service for grant of bail.
' There is special difficulty in dealing with cases under sections 13-D and 13-E, Arms Ordinance because in these cases the provisions of section 5-A(8) is to be read with presumption under section 8 of S.T.A. Act. The quantum of sentence provided for offence under sections 13-D and 13-E is not a consideration under section 5-A(8). This part of provision of section 497 being in conflict with provision of section 5-A(8), the bail can only be granted under provision of section 5-A(8). The provision of special law has to prevail.
' The bail application on ground of statutory delay has been considered and he was found in possession of weapon and there is presumption under section 8 of the S.T.A. Act, 1975, that he shall be presumed to have committed the offence. Section 5-A(8) of S.T.A. Act says that accused person shall not be released on bail by Special Court or by any other Court if there appear reasonable grounds that he has been guilty of a scheduled offence. This being statutory limitation of Special Law, the bail application of the applicant is rejected.
' DR. GHOUS MUHAMMAD, J.---I have gone through very carefully the order proposed to be delivered by my learned brother Amanullah Abbasi, J., for whom I have great regard but with optimum respect I find myself unable to agree with his views and in consequence I hereby venture to write a dissenting note.
2. The facts of the case have been ably stated by my learned brother in his judgment in view whereof I do not feel it necessary to restate the same. After hearing both the sides at some length the essential issue that warrant consideration in the instant case may be conveniently detailed as follows:---
(i) Whether the quantum of sentence relatable to the provisions with which the person is charged is at all relevant to the grant or refusal of bail, where that person is charged under any of the scheduled offences under Suppression of Terrorist Activities (Special Courts) Act, 1975 hereafter referred to as the "S.T.A."?
(ii) Whether the provisos to section 497 of the Criminal Procedure Code are available to the person seeking bail if charged under any of the scheduled offences of the S.T.A.
3. Before dilating upon the arguments advanced by both the sides I think it would also be pertinent to first lay down the relevant provisions of the S.T.A. Which are as follows:--- "S.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."
' S.7. Appeal from sentences imposed by Special Courts etc.--A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, and the Provincial Government may direct any person appointed' by it for the purpose to present an appeal to the High Court from an order of acquittal passed by a Special Court, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under subsection (1) shall preferred to the High Court within 30 days of the passing of the se tence (or order of acquittal, as the case may be). And shall be heard and decided by a Bench of not less than two Judges of the High Court (within three months)
' S.B. 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.
' S.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."
4. The learned A.A.-G., has taken the stand that the S.T.A., is a special law carrying a special objective, being an act to provide for suppression of acts of sabotage, subversion and terrorism, in view whereof in case of any conflict with the general law, the provisions of the S.T.A., would prevail.
He has essentially in this regard placed reliance on section 10 of the S.T.A. The learned A.A.-G., in furtherance to this plea has stated that the S.T.A., has made a provision for grant of bail in its section 5A(8) which contains exhaustive grounds on which the Court can admit a person to bail while on no other ground can the bail application be entertained. He has also contended that the said section 5-A(8) is worded in a prohibitory language in view whereof its requirements are to be strictly adhered to while it precludes from its operation any other extraneous consideration or ground not built therein. In support of his submissions the learned A.A.-G., has placed reliance upon a latest decision of a Full Bench of the Supreme Court comprising three members in Chaudhry Shujaat v. The State 1995 SCMR 1249.
5. I feel that issues in this case can be resolved by looking into the following three cases of the Supreme Court on the subject:---
(a) Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599 decided by a Full Bench of the Supreme Court comprising three Judges.
(b) State v. Qaim Ali Shah, 1992 SCMR 2192 decided by a Full Bench of the Supreme Court comprising five Judges.
(c) Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249 decided by a Full Bench of the Supreme Court comprising three Judges.
6. The Allied Bank case revolved around the Offences in Respect of Banks (Special Courts)
Ordinance, 1984 (hereafter referred to as "the 1984 Ordinance") (wherein provisions relating to, inter alia, bail are in para materia with like provisions in the S.T.A. In order to state the dicta of the Allied Bank case with precision I feel it pertinent to first narrate the relevant provisions of the 1984 Ordinance:--- "S.5(6).--An accused person shall not be released on bail by a Special Court or by any other Court if there appears reasonable ground for believing that he has been guilty of 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.
' S.9.--(1) Burden of proof.--In any trial under this Ordinance, the fact that the accused person, or any of his relatives or any other person on his behalf, is in possession for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved and on such proof the Special Court shall presume, unless the contrary is proved, that the accused person is guilty of a scheduled offence: and his conviction, therefore, shall not be invalid by reason only that it is based solely on such presumption.
' S.10(1). Appeals from sentences passed by Special Court, etc.--A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
' S.12. Ordinance to override other laws.--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."
6-A. In the Allied Bank case Rustam Sidhwa, J., while writing for the Court, came to the conclusion that complete ouster of section 497 of the Criminal Procedure Code could not be inferred from the language of section 5(6) of the 1984 Ordinance in relation to bails as he observed:--- "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 subsection (1) of section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same subsection 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 subsection (6) of section 5 of the Ordinance." (See para. 18 of the said judgment).
' The learned Judge while stating his views on the proviso of section 497 of the Criminal Procedure Code and other provisions thereto came to the conclusion that the first and third provisos of the said section 497 were not available when considering a bail application under section 5(6) of the 1984 Ordinance. However, some room was left for invoking the provisions of section 561-A of the Criminal Procedure Code to grant bail under inherent powers on grounds of delay which were not attributable to the accused. It would be pertinent to reproduce the relevant observations where such principles have been stated:--- " The position of the third proviso to subsection (1) of section 497 of the Code is somewhat nebulous. Though its provisions provide it exception to the rule contained in subsection (1) of section 497, it is founded in public policy, namely, that an accused shall not be made to suffer for the long delay arising out of the commencement of his trial, unless the same has been occasioned by his own conduct, and assuming that the same is also not available, the possibility of its application through section 561-A of the Code to prevent an abuse of the process of the Court or otherwise to secure the ends of justice, cannot be totally excluded. In a fair case it may be availed by the High Court in exercise of its inherent powers."
(See para 19 of the judgment).
"Therefore, whilst the provisions of the first and third provisos to subsection (1) of section 497 of the Code may be treated as not available to the Special Court or the High Court, such a situation would not apply to subsections (2) to (5) of section 497 of the Code, as they do not affect the rule stated in subsection (6) of section 5 of the Ordinance. These provisions would not stand excluded, whether expressly or by accessory intendment or implication."
(See para. 19 of the judgment).
7. The Allied Bank case accordingly stood an authority for the following principles of law enunciated therein:---
(i) while considering bail under section 5(6) of the 1984 Ordinance, the provisos 1 and 3 of section 497(1) were not available to the Court;
(ii) in the event as specified in (i) above, the operation of subsections (2) to (5) of section 497 of the Criminal Procedure Code did not stand precluded;
(iii) in the event as stated in (i) above the High Court could invoke its inherent powers under section 561-A of the Criminal Procedure Code to grant bail on grounds of delay.
8. Subsequently, a Full Bench of the Supreme Court comprising three Judges heard arguments in State v. Qaim Ali Shah and reserved the judgment on 17-5-1992. However, the learned Judges of that Bench came to the conclusion that the views expressed in the Allied Bank case required consideration in view whereof a large Bench comprising five Judges was constituted which decided the case of Qaim Ali Shah reported in 1992 SCMR 2192 (see para. 4). It is also interesting to note that Rustum S. Sidhwa, J. The learned author of the judgment in the Allied Bank case also sat in judgment in the Qaim Ali Shah case. Before adverting to the principles of law stated in the Qaim All Shah case it would also be pertinent to observe that the need for referring the matter to a larger Bench arose as the learned Judges found the provisions of the STA which were relevant in the Qaim Ali Shah's case to be in para materia with the provisions of the 1984 Ordinance which were the subject-matter of the dispute in the Allied Bank case.
9. In the Qaim Ali Shah's case Ajmal Mian, J., while writing the leading judgment, exhaustively dealt with the case-law on the subject and at the same time considering the dicta of the Allied Bank case. The learned Judge after an exhaustive analysis came to the conclusions which can be summarised as follows:---
(i) During the pendency of trial before the Special Court while dealing with a bail appeal/application the High Court can press into service section 497 of the Cr.P.C., alongwith provisos 1 and 3 see paras. 19 and 20 of the judgment of Ajmal Mian, J.;
(ii) the Special Court while dealing with the question of bail under the STA can also press into service section 497 alongwith its provisos 1 and 3 (see para. 21 of the Judgment of Ajmal Mian, J.);
(iii) once a person is convicted by the STA and its case is not pending therein while an appeal is filed by convict in the High Court, the provisions of section 426 of the Cr.P.C., would not be available to the High Court while entertaining an application for bail. However, section 561-A could be invoked by the High Court in such a situation on medical grounds and on grounds of delay (see para. 23,of judgment of Ajmal Mian, J).
10. Sajjad Ali Shah, J., (as he then was and now the Hon'ble Chief Justice) concurred with Ajmal Mian, J., and did riot write a separate judgment.
11. In his judgment Shafi-ur-Rehman, J. Took the view that none of the remedial powers enjoyed by the High Courts under the Cr.P.C., stood curtailed or superseded by the STA except that the powers under the STA were exercisable by a Bench comprising not less than two Judges. The reasons attributable by the learned Judge for coming to such a conclusion were, inter alia, that under Article 203 of the 1973 Constitution the High Court enjoyed the general power of superintendence and control over all subordinate Courts which power could not be presumed to be excluded and that where there were interlacing of powers and procedures and massive incorporations by reference existed a harmonious procedure ought to emerge for the administration of criminal justice unless the same became inevitable. From a bare reading of the opinion of Shafiur Rehman, J. It appears that the learned Judge quite concurred with those views of Ajmal Mian J., which are summarized in para. 9 above except view No, (iii). In that respect Shafiur Rehman, J. Differed with Ajmal Mian, J., while stating that even where the High Court hears an appeal preferred by a person convicted at the main trial by the Special Court, the High Court could still, inter alia, invoke the provisions of section 426 of the Cr.P.C., provided that the matter was heard by a Bench comprising more than one Judge. In this regard it would be pertinent to reproduce the relevant findings which are as under:--- "Thirdly, having conceded to the High Court Appeal Bench all the appellate and other powers, normally available to the High Court, the exclusion of powers under sections 426, 491 and 498 are referable to the High Court functioning with less than two Judges. In other words, a Single Judge cannot exercise these powers."
(See 1992 SCMR 2192 at p. 2224).
12. Nasim Hasan Shah, J. Wrote a separate paragraph and concurred with the views expressed in the opinion of Shafiur Rehman, J.
13. The most significant part of the Qaim Ali Shah case is that Rustam S. Sidhwa, J., who was the author of the judgment in the Allied Bank case consciously came to the conclusion that the views expressed by him in the Allied Bank case warranted modification as he stated:--- "Having given deep thought to the 'matter, I have come to the conclusion that the view I took in the Allied Bank's case requires review for reasons which I propose to set out below, but which are totally different from that advanced by the learned counsel before us."
(See 1992 SCMR 2192 at p. 2230).
' Rustam S. Sidhwa, J., inter alia, conspicuously observed that both provisos 1 and 3 of section 497 of the Cr,.P.C., were available to the High Court as well as the Special Court. The reasoning advanced by the learned Judge for coming to such conclusion was that the STA lacked any enabling section which could confer the power to a Court to grant bail whereas section 5-A(8) of the STA only spelt out the Bar to the grant of bail. i,e,, the circumstances when bail could not be granted. In this respect the learned Judge had observed:--- "What is contained in section 5-A(8) of the Act is not a provision relating to the grant of bail, but a provision detailing circumstances prohibiting the grant of bail."
(See 1992 SCMR 2192 at p.2230).
' The learned Judge took the view that since section 497 did not stand precluded by the provisions of the STA, the same alongwith its provisos was the enabling provision with regard to grant of bail, while section 5-A(8) spelt out the Bar when bail could not be granted. Sidhwa, J., however did not express any view as regards the availability of section 426, Cr.P.C., to the High Court when adjudicating upon a bail application filed by a convict.
14. None of the learned Judges who sat in judgment in the Choudhry Shujaat case were on the Bench which decided the Qaim Ali Shah case. The Qaim Ali Shah case did not enjoy mention or consideration in the Choudhry Shujaat case. It appears that none of the counsel appearing in the Choudhry Shujaat case pointed out the Qaim Ali Shah decision to the learned Bench hearing the petition. In the Choudhry Shujaat case the Supreme Court followed the dicta of the Allied Bank case without considering or noting its modification in the Qaim Ali Shah's case. In the Choudhry Shujaat case the Supreme Court cited with approval the principle stated in the Allied Bank case to the effect that while considering a bail application the High Court and the Special Court could not invoke provisos 1 and 3 of section 497 of the Cr.P.C. (See 1995 SCMR 1249 at p. 1261, latter part). With utmost respect the view expressed in the Choudhry Shujaat's case on this aspect could not be subscribed to since in the Qaim Ali Shah's case this aspect already stood consciously modified by a larger Bench comprising five Judges. Not only that but the author of the judgment in the Allied Bank case himself had reviewed his own views expressed therein in the Qaim Ali Shah's case.
However, the principle of law stated in the Choudhry Shujaat's case that the quantum of sentence is completely irrelevant when considering grant or refusal of bail is in consonance with the dicta of the Supreme Court in both the Allied Bank case and the Qaim Ali Shah's case.
15. A review of the three decisions as stated above would leave, inter alia, the following principles of law:---
(a) Both the High Court and the Special Court have to ignore the quantum of sentence relatable to the charge in issue when considering the question of grant or refusal of bail;
(b) both the High Court and the Special Court have the powers to press into service provisos 1 and 3 to section 497(1) of the Cr.P.C., when considering the question of bail during the pendency of trial before the Special Court;
(c) there is a difference of opinion on the question as to whether the High Court could invoke the provisions of section 426 of the Cr.P.C., in case the person before the High Court stands convicted by the Special Court.
16. It would also be pertinent to observe that the above principles which are squeezed out from the judgments of the Supreme Court are not only applicable in relation to the STA but the same would also hold good with regard to the 1984 Ordinance since the Supreme Court has on more than one occasion taken the view that the provisions of the STA stand in para materia with the 1984 Ordinance.
17. The stance taken by the learned A.A.-G. That provisos 1 and 3 of section 497 of the Cr.P.C. Could not be pressed into service by the High Court or the Special Court is not borne out from the decisions of the Supreme Court discussed above. The Supreme Court while coming to this conclusion has also taken into account the non obstante clauses contained in section 10 of the STA and section 12 of the 1984 Ordinance. It was in view of these non obstante clauses that the Supreme Court had taken the approach that the quantum of sentence which would be relevant when considering bail under section 497, Cr.P.C., per se, would have to be ignored when the two special laws contained in the STA and the 1984 Ordinance are also in issue.
18. As regards the question of burden of proof which have been specifically provided for in section 8 of the STA and section 9 of the 1984 Ordinance, the same have no bearing on the applicability of the provisos 1 and 3 of section 497 of the Cr.P.C. The said provisions of burden of proof are only relevant for the purposes of main trial and are of no consequence at bail stage under these special laws. I am of the view that at bail stage the general principle of law as spelt out in Muhammad Iqbal v. The State PLD 1963 Lah. 279, that at bail stage every accused of an offence is to be presumed to be not guilty, remains applicable. In coming to this conclusion I am fortified from the views expressed by a Division Bench of this Court in Suhrab v. The State 1995 MLD 607 for the proposition that under section 8 of the STA the burden of proof would not stand shifted to the accused till such time the prosecution first made out a reasonable case against the accused. This dicta has to be read in conjunction with the general principle of law regarding bails that an accused can only be refused bail when, inter alia, there is a reasonable case against him. In other words even where the said section 8 is allowed to operate at bail stage the accused cannot be refused bail till prosecution first comes out with a reasonable case against the accused, while such is also the position in general law regarding bail as just aforestated. Accordingly, there can be no cavil with the proposition that the said section 8 would have no bearing at bail stage.
19. While keeping the above discussion in the backdrop, I am of view that the instant application it is not essential to go into the question of whether there exists a reasonable case against the accused since the case warrants pressing into service proviso 3 of section 497 (1) as the accused has been detained for more than a year, while he is charged with the offence not punishable with death and also the delay is not attributable to any act or omission of the accused or any other person acting on his behalf. In this respect I have been able to lay my hands on Shah Muhammad v. The State 1983 SCMR 341 and Rahim Baksh v. The State PLD 1986 Kar. 224 for the proposition that where the case of the accused clearly falls under the proviso No,3 of section 497 (1), the accused is entitled to bail as of right while no discretion of the Court is left intact.
20. Before parting with the order I may also clarify that the proposition that the quantum of sentence at bail stage is to be ignored in the above context is only relevant in relation to the provisions of subsection (1) of section 497 and not provisos thereto.
21. I accordingly admit the accused to bail by invoking the third proviso to section 497(1) subject to the accused furnishing a surety in the sum of rupees 50,000 (fifty thousand) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
' NAZIM HUSSAIN SIDDIQUI, J.--This bail application was heard by a learned Division Bench of this Court consisting of Amanullah Abbasi, J. And Dr. Ghous Muhammad, J1, and their Lordships have taken different views regarding grant of bail to the applicant. Hon'ble Chief Justice, by Order dated 15-2-1996, had directed the office to place this matter before me as a "THIRD JUDGE" for its decision.
' The facts necessary for decision of this application and the relevant provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975, hereinafter referred to as STA Act, have been mentioned and quoted by their Lordships in their respective order, I will not repeat the same unless absolutely necessary.
' Amanullah Abbasi, J.---while rejecting the bail application of the applicant reached the conclusion that section 5-A(8) of the STA Act, though not complete Code but provides fetters on the powers of Special Court to grant bail. He also held that the principles enunciated in section 497, Cr.P.C., can be pressed into service for grant of bail, and that provisions of section 5-A(8) are to be read alongwith section 8 of said Act. He observed that "a part of provision of section 497 being in conflict with the provisions 5-A(8) of STA, Act, the bail could only be granted under provisions of section 5-A(8) ibid". He also observed that in view of section 8 of STA Act the applicant was to be presumed to have committed the offence. Accordingly he rejected the bail application which was pressed on the ground of statutory delay only.
' Dr. Ghous Muhammad, J.---referred to three cases of the Supreme Court namely (1) Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; (2) State v. Qaim Ali Shah 1992 SCMR 2192 and (3)
Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249. Having taken into consideration the principles of law enunciated in these cases his Lordship reached the conclusion that the case of the applicant was clearly covered by the proviso No,3, subsection (1) of section 497, Cr.P.C., as such he granted bail to the applicant in the sum of Rs,50,000 (Rupees Fifty Thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.
' In Allied Bank of Pakistan Ltd.'s case, respondent Khalid Farooq was allowed bail by a learned Division Bench of Lahore High Court pending his trial by the Special Court, Offences in Respect of Banks (Special Courts) Ordinance, IX of 1984 (hereinafter to be referred to as "the ,Ordinance, 1984") under sections 409, 420, 468 and 477-A, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947. Said order of the Division Bench was challenged before the Hon'ble Supreme Court, which was heard by a Bench consisting of three Judges including Rustam S. Sidhwa, J.--who is the author of this judgment. It was held in this case that section 5(6) of the Ordinance, 1984 does not completely oust the applicability of section 497, Cr.P.C., in respect of bails and though the rule of subsection (1) of section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same subsection have been introduced in subsection (6) of section 5 of the Ordinance, 1984, which is couched in negative language. Further, his Lordship vhile dealing section 5(6) of the Ordinance with reference to section 497, Cr. P. C. , observed as follows:--- "Section 5(6) of the Ordinance clearly states that an accused shall not be released if there appear reasonable grounds for believing that he has been guilty of a scheduled offence. The provisions of this section have effect, notwithstanding anything contained in the Code. The first and third provisos to subsection (1) of section 497 of the Code which create exceptions to the rule contained in that subsection, cannot be read into subsection (6) of section 5 of the Ordinance. Where the law-maker wanted to provide an exception or departure to the rule contained in section 5(6) of the Ordinance, he did so by adding such words akin to the second proviso to subsection (1) of section 497 of the Code. Where the law-maker did not desire to provide further exceptions to the rule, such as those akin to the first and the third provisos to the same subsection, he did not add specific words similar to those provisos in subsection (6) of section 5. The provisions of the first proviso to subsection (1) of section 497 of the Code would therefore be deemed to be clearly not available to the Special Court or the High Court when dealing with the bail of a person accused of a scheduled offence under the Ordinance. The position of the third proviso to subsection (1) of section 497 of the Code is somewhat nebulous. Though its provisions provide an exception to the rule contained in subsection (1) of section 497, it is founded in public policy, namely, that an accused shall not be made to suffer for the long delay arising out of the commencement of his trial unless the same has been occasioned by his own conduct, and assuming that the same is also not available, the possibility of its application through section 561-A of the Code to prevent an abuse of the process of the Court or otherwise to secure the ends of justice, cannot be totally excluded."
(At pages Nos.620 and 621).
' In the case of Qaim Ali Shah and Shahnawaz Khan Junejo, the State had filed an appeal before the Hon'ble Supreme Court against the orders granting bail to them by a Division Bench of this Court, in the case pending before the STA, Court. This matter was heard by a Full Bench consisting of five Judges, including Rustam S. Sidhwa, J.-- who, as stated earlier, was the author of the judgment of the case of Allied Bank.
' In this case main judgment was delivered by his Lordship Ajmal Mian, J.-- and Sajjad Ali Shah, J.-- (as he then was) now .The Hon'ble Chief Justice of Supreme Court, had agreed with him. Shafiur Rehman, J.-- had written his judgment separately and Nasim Hassan Shah, J.-- had concurred with him. Rustam S. Sidhwa, J.-- had written his judgment separately. It was observed that section 497(1), Cr.P.C., with its provisos 1 and 3 can be pressed into service by the High Court and the Special Court during the pendency of trial of an accused before the Special Court under STA, Act, and that the provisions of section 5-A(8) of STA, Act does not completely oust the applicability of section 497, Cr.P.C. In respect of bails at trial stage. Also it was observed that section 5-A(8) of the Act is not a provision relating to the grant of bail, but a provision detailing circumstances prohibiting the grant of bail.
' Ajmal Mian, J.--in this judgment observed as follows: "The position which emerges from the above discourse is that the High Court during the pendency of trial of an accused person under the Act by the Special Court before any conviction is recorded, can press into service section 497, Cr.P.C., with its provisos 1 and 3. But since section 498, Cr.P.C. Has been expressly excluded in subsection (1) of section 7 of the Act, the same cannot be invoked in aid. Gul Muhammad, J., as he then was, speaking on behalf of a Division Bench of the Lahore High Court in the case of Altaf Hussain v. State (supra) has brought out a fine distinction by holding that the High Court's power under section 498, Cr.P.C. At the trial stage has not been excluded and that the exclusion relates to the appellate stage. In my view, the above fine distinction cannot be spelt out from the language of subsection (1) of section 7 of the Act, though the above section 7 is a composite section, which not only deals with the appellate power of the High Court, but also touches upon its revisional power, power to transfer case from one Court to another and the power to issue a writ in the nature of habeas corpus."
(At pages Nos.2217 to 2218).
' Shafiur Rehman, J.- observed none of the remedial powers enjoyed by the High Courts under the Criminal Procedure Code are curtailed or superseded by the STA, Act. Giving reasons in support of his above conclusion, he observed as follows: "Firstly, all the statutory provisions have to be interpreted harmoniously and consistently with the Constitutional provisions, the paramount law, already occupying the field. The Constitution by its Article 203 entrusts to the High Court the power of superintendence and control over all Courts subordinate to it. If in section 7 of the Act in the expression "No Court" we include the High Court then it can't have any jurisdiction of any kind in respect of any proceedings of a Special Court" except that appeals against sentence and acquittal will be lodged with it. Such a subversive interpretation cannot be countenanced, not even on express language of the statute as pointed out in Mst. Ameer Khatoon v. Faiz Muhammad PLD 1991 SC 787 at page 797."
(At page No,2223).
' Referring to the Allied Bank of Pakistan's case, Rustam S. Sidhwa, J.--in this matter observed as follows: "9. However the question whether the provisions of the first and third provisos to subsection (1) of section 497 of the Code can be held to be available to the Special Court or the High Court, requires reappraisal. Basically the matter revolves round subsections (8) and (9) of section 5, subsection (1) of section 7 and section 10. The resolution of the matter depends upon a proper interpretation of these and other provisions of the Act and not on interpretation alieunde to be drawn from other enactments which are not in pari materia. Having given deep thought to the matter, I have come to the conclusion that the view I took in the Allied Bank's case requires review for reasons which I propose to set out below, but which are totally different from that advanced by the learned counsel before us.
10. The first matter to be seen is which provision of the Act permits the Special Court or the High Court to release or admit a person to bail. There is no section in the Act relating to the grant of bail.
There are a series of sections in Chapter XXXIX of the Code dealing with bail, which include sections 496 to 498 dealing with the grant of bail. What is contained in section 5-A(8) of the Act is not a provision relating to the grant of bail, but a provision detailing circumstances prohibiting the grant of bail.
11. Section 7 of the Act does not exclude section 497 of the Code. On the basis of the rule laid down in the Allied Bank's case (supra), section 497 of the Code is therefore, applicable to the Act. If this be so, section 5-A(8) of the Act can only act as a partial limitation to the rule laid down in section 497 of the Code."
(At pages Nos.2229 to 2230 in paras. 9, 10 and 11).
' It is significant to note that neither party appearing in Chaudhry Shujaat Hussain's case cited the case of Qaim Ali Shah referred to above. The case of Allied Bank was cited and relied upon. In Chaudhry Shujaat Hussain's case at page No,1260 the following was observed: "A comparison with section 497, Cr.P.C. Will show that there is departure from the said provision. 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. In Allied Bank's case, it was observed that '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 scheduled offences, the Code will not affect any provision dealing with such special power, jurisdiction or procedure'. It may also be noted that section 5(6) is couched in a negative language. It is well- settled principle of interpretation of statute that where any provision couched in negative language requires as act to be done in a particular manner then it should be done in the manner as required by the statute otherwise such act will be illegal. In this regard the observations in the Allied Bank's case are relevant and further the learned Deputy Attorney-General has referred to certain passages from Maxwell's, Interpretation of Statutes and Craises leading to the same conclusion."
' Mr. Gul Zaman Khan, learned counsel for the applicant contended that the applicant is in continuous detention since 30-8-1994 and is entitled to the concession of bail on the ground of statutory delay. He also submitted that the delay in the trial of the applicant has not occasioned by an act or omission of the applicant or any other person acting on his behalf, and that the offence not being punishable for 10 years the embargo contained in section 497, Cr.P.C., is not attracted. As against this, Mr. Sarwar Khan, learned counsel for the State repeated the observations of my learned brother Amanullah Abbasi, J.-- that the provisions of section 5-A(8) of the Act are to be read alongwith section 8 of said Act and argued that since the applicant was found in possession of a S.M.G. Rifle, it shall be presumed that he had committed the offence.
' As regards the plea of Mr. Sarwar Khan, learned counsel for the State, it is noted that above observation of my learned brother Amanullah Abbasi, J., is based on the decision of Allied Bank case and the author of said judgment himself in Qaim Ali Shah's case reached the conclusion that the view taken by him in Allied Bank's case required review for the reasons he gave in the later judgment. This being the position, it cannot be argued that section 5-A(8) completely oust the applicability of section 497, Cr.P.C. Besides, section 8 of the STA Act, speaks about "Burden of Proof', which is a rule of evidence. Bail is to be granted or refused on the grounds mentioned in section 497, Cr.P.C., read with section 5-A(8) of the Act and not on the principles of evidence.
' Having taken into consideration the dictum of law laid down in the aforesaid cases it becomes clear that section 497, Cr.P.C. With its provisos 1 and 3 can be pressed Before this Court and the trial Court. According to proviso 1 of subsection (1) of section 497 any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence may be released on bail and proviso 3 says that on the ground of delay an accused can be released on bail, as stated therein. This case is governed by 3rd proviso of subsection (1) of section 497, Cr.P.C. Learned counsel for the State did not question, the merits of the case, but challenged the legality for the grant of bail on the basis of section 5-A(8) of the STA Act.
' It is an admitted position that in the STA Act there is no section relating to the grant of bail. The STA Court is to follow the procedures as laid down in Criminal Procedure Code, subject to the restrictions imposed by the STA Act. Chapter XXXIX of Criminal Procedure Code deals with the provisions relating to the grant of bail. Subsection (1) of section 497 divides non-bailable offences into two categories i,e, (1) in which bail may be granted; (2) those in which bail is not to be granted (generally referred to as the prohibitory clause). The phrase "Reasonable grounds for believing" in this section appears at three places. The words "Reasons to believe" have been defined in section 26 of P.P.C., as follows: "A person is said to have 'reason to believe' a thing if he has sufficient cause to believe that thing, but not otherwise."
' Subsection (1) of section 497 says that when any person accused of any non-bailable offences arrested, 'he may be released on bail. The later part of this subsection puts an embargo on the power of the Court regarding grant of bail. In case there are reasonable grounds for believing that accused is guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, the bail is not to be granted. It is noted that except as above, the Court in its discretion can grant bail as the trend is "Bail not jail". Under subsection (2) of section 497 bail can be granted in respect of aforesaid offences if "there are not reasonable grounds for believing" that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt. Subsection (4) of section 497, Cr.P.C., says at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused on execution of a bond without sureties for his appearance to hear judgment.
All scheduled offences, under the Act, are not punishable with death or imprisonment for life or imprisonment for ten years. By virtue of section 5-A(8) of the Act, the accused involved in scheduled offences have been equated, for the purpose of bail, with the accused who are guilty of offences punishable with death or imprisonment for life or imprisonment for 10 years. Section 5- A(8) does not completely take away the power of the STA Court or the High Court for the grant of bail. Normally in all cases, except punishable with death or imprisonment for life or imprisonment for 10 years, bail is granted as a matter of rule and refusal is an exception. Section 5-A(8), however, has placed all the scheduled offences under the prohibitory clause irrespective of the fact that they are covered by said clause or not and an accused cannot be released on bail unless the prosecution has been given notice to show cause why he should not be released on bail.
"In case of scheduled offences if there are reasonable grounds to believe that the accused is guilty of a scheduled offence, he shall not be released on bail. Conversely, if there are reasonable grounds to believe that he is not guilty of the scheduled offence, he may be released on bail. The conclusion, therefore, would be that even on merits bail may be granted to an accused involved in scheduled offence, if there are reasonable grounds to believe that he has no committed said offence. Mere accusation would not be enough to refuse bail to an accused unless such accusation is accompanied by material constituting reasonable grounds".
' In view of above discussion, I agree with the conclusion drawn by my learned brother Dr. Ghous Muhammad, J.- and hold that, under the circumstances, the applicant is entitled to bail.
Accordingly, bail is granted to the applicant in the sum of rupees fixed by my said learned brother in his order mentioned earlier.