' MIAN MUHAMMAD AJMAL, J.--- This bail cancellation application was heard by a Division Bench of this Court comprising of Mr. Justice Nasir-ul-Mulk, J. And Mr. Justice Malik Hamid Saeed, J. On 3-3- 1999. The former Hon'ble Judge accepted the bail cancellation application and cancelled the ed to accused-respondent Jehanzeb whereas the later Hon'ble Judge dismissed the bail cancellation application finding no merit in it. Due to divergent views of the learned Judges of the Bench, this bail cancellation application has been placed before this Single Bench by the order of the Hon'ble Chief Justice. 1 need not recapitulate the facts of the case as the same have been given in detail in the ing order of the learned Special Court, Charsadda, dattx1 255-1998.
2. Learned counsel for the petitioner contended that the accused-respondent along with his father is directly charged in the F.1.R. For the murder of Abdul Wahab. HE after obtaining ad interim pre- arrest bail' did not turn- up on the date of confirmation. He was arrested after 15 months of the occurrence and was put to trial wherein almost all the formal witnesses have been examined, In the transfer, application filed by the complainant party before this Court a direction was issued to the Trial Court by the Honourable Chief Justice to make efforts to conclude the trial in short time while dismissing the transfer application which order was not properly read and appreciated by the trial Court in allowing bail to the accused.
3. Learned counsel for the accused. Respondent on the other hand vehemently' argued that subsection (8) of section 5-A of the Suppression of Terrorist Activities (Special Court) Act to be called the Act) clearly states that an accused shall not* ' be released if there' appear reasonable grounds for believing that he has been guilty of scheduled offence and it only provided' for the' grantor refusal of bail and there is no provisions whatsoever in the Act for the tancellation of bail.
The scheme of the Act would 'reveal that it required the speedy disposal lave cases pertaining to scheduled offence before the expiry of two years, as such the legislature avoided to incorporate in law the provision for cancellation of bail. In absence of such 'provision in special law'The application for of bail not competent and maintainable and it deserves rejection. Further contended, that the casts of Allied' Bank of -Paktstan Ltd. v. Xhalid Farooq and The State v. Syed Qaim All Shah reported gas 1991 SCM R 599-and 1992 SCM R 2192 respectively are in respect of the >grant of bail wherein it was laid down that High Court has the power to press into service section 497, Cr.P.C. With its Provisos 1 and 3. During pendency of trial before the Special Court, but it cannot betide applicable in the bail cancellation application. He further argued that since the law has prescribed the period for the conclusion of the trial under the Act, therefore, period of two years prescribed in third proviso of section' 497 of the Code does not fit in the scheme of the Act and, ' thus, third proviso to section 497, Cr.P.C., would riot be attracted in the cases falling under the Act.
He argued that the delay has been held in numerous cases to be an abuse of the process of them Court and on such ground the bail has been generally granted and ed on such a ground cannot be cancelled.
4. Learned Law Officer adopted the arguments of the learned counsel for the petitioner and supported the bail cancellation application
5. After hearing the learned counsel for the parties and going through the record of the case I am of the view that the law laid down in 1991 .SCMR 599 and,1992 SCM R 2192, is fully applicable to, tile present case. In the former case it has bed held as follows,- ' The provisions of the fruit 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 ( ) of section {{BLURE PAGE}}"
497,,,v4 of the Code, as they di) not affect the' stated in subsection (6) ofyal section 5 of the Ordinance. These provisions would not stand excluded, Wither.- expressly or by necessary "a 13,,,,virtten4tnew or implication. In the ilnarsnalysis, je not possibie.% to subscribe to the, view that sec- ,u1 ion 5(6)of the Ordinance constitutes ,w a complete Code for the grant of bail to persons accused of offences mentioned in the Schedule to the exclusion of all provisions in the Code relating to the same subject."
It may be noted that the provisions of sections 5-A (8). (9), 7(1)(2), (3) and 10 of the Act are synonymous to sections 5(6),. (8), 10(11(2), .(3) and 12 of the Ordinance and the rule laid down in the above cited judgments is applicable similar provisions of the Act. In the later authority (1992 SCM R 2192), it has been obierved by Mr.= Justice Rustam S. Sidhwa, 1. (as he then was) as under:- 'ItraistIALQLthccsaltium excluded by section 7 of the Act, It polies fully.' Subsection (1) of section 497 of the Code relates to the grant of bail and limitation to its grant. Subsection Itt) of section 5-A or the Act relates to conditions which bar the grant of bail. See: tion: of the Code js a ;opposite usitoodealing syithihost of matters .t"d481113111)1auli.....eLizeiLens1 41201,12ALliaraajdis,LLAutaut811 cancellation-Of hail, Subsection (8) of section 5-A of the Act is limited in its scope and only deals with conditions burring the grant of bail. This subsection which is limited in its scope ex facie cannot displace section.497 or subsection (1) thereof, which have a larger scope." (Underlining is mine). {{BLURE PAGE}}"
' It is manifest from the above-quoted authorities that the Act does not oust the applicability of section 497, Cit.P.C., subject to the restrictions contained in section 3-A(8) of the= Act, and it can be pressed into service both _for the grant and cancellation of bail. There-is also well-known principle that one who can do a thing can undo the same. The respondent was allowed bail under third proviso of section 497, CrA.P.C., and not under section 5-A(8) of the Act, if section 497, Cr.P.C can be pressed into service for the grant of bail, its subsection (5) can also, be invoked for cancellation of bail,
6. The accused-respondent was arrested on 19.10-1997 after remaining in abscondence for 15 months. He was charge-sheeted on 3-1-1998 and in trial formal witnesses have been examined, however, no eye-witness was examined till 25.5-1998 when he was granted bail on the ground of delay in conclusion of the trial. It is evident that respondent was granted bail within seven months from the date of his arrest, Proviso third to section 497, Cr,P.C., provides that if the trial is not concluded within IWO years, the accused shall be .Released on bail, The respondent applied for bail ill the trial Court before the expiry of statutory period of two years therefore. His application for bail being premature was not even entertain able end,, and, the order passed on such application granting bail to the respondent was without jurisdiction. Reference can be made to 1976 PCr.1.1 1446, 1982 SCM R.
1.45.And 1998 SCMR 34 ' In view of the above, the ing order being without jurisdiction is unsustainable, hence on acceptance of this application, the ed to the accused-respondent is cancelled. Ile is taken into custody and sent to as under-trial prisoner to face trial. However, the trial Court is directed to conzlude the trial as early as possible.