' SH. IJAZ NISAR, J.---The facts giving rise to this petition, that on 11-3-1996 Messrs Champ Sports, Sialkot, exported 50 cartons of medicinal balls to Messrs Sears, Canada, from Lahore through Airway Bill No,020-3248-4712 by Lufthansa Cargo. The said consignment was checked at Sharja Airport and 400 K.Gs. Of Hashish was found concealed in the medicinal ball. On receipt of the said information a raiding party was constituted which visited the office of Hasnain Cargo, Sialkot, through which the consignment in question had been booked and arrested one Asif Javed, who on interrogation disclosed that the consignment was owned by Gul Zaman, petitioner herein who had booked it through him. On the basis of the said information, the present case was registered on 27- 5-1997 and Gul Zaman petitioner was arrested on the same day. Naseem Amin Butt, the owner of Champ Sports. Was also arrested. It is alleged that Asif Javed, Naseem Amin Butt, Mahmood Hassan Harvi and Gul Zaman petitioner were members of a gang engaged in the smuggling of Narcotic. They were, thus, booked in this case.
2. During investigation Sajjad Parvez, an employee of Cargo Care, stated that a cheque of Rs,1,00,000 issued by Messrs Ehsan Sports, of which Gul Zaman petitioner was one of the Directors, had been given to him on 31-3-1996 towards the payment of freight charges.
3. Gul Zaman petitioner applied for bail to the Special Court but his application was dismissed on 23-12-1997. He then applied to the High Court and remaining unsuccessful has petitioned to this Court.
4. It is contended that the petitioner has been falsely involved without any material to link him with the alleged crime, that he is behind the bars since 27-5-1997 without any trial and even the complete challan has not yet been submitted. It is further stated that he remained on physical remand with the Investigating Agency for a couple of days but nothing incriminating could be recovered from his possession. He has been merely involved on the uncorroborated statement of Asif Javed co-accused made by him before the raiding party which in no terms can be termed as a judicial confession within the meanings of Article 43 of the Qanun-e-Shahadat Order, 1984. The petitioner had absolutely no connection with Champ Sports, Sialkot which had booked the consignment in question and its proprietor Naseem Amin Butt in the bail application filed by him is said to have admitted the receipt of sale proceeds through bank in respect of the consignment in question.
5. Learned Deputy Attorney-General has vehemently opposed the bail application submitting that the petitioner's involvement in the crime stands established by the delivery of cheque, dated 31-3- 1996, in the sum of Rs,1,00,000 by Ehsan Sports, which was got encashed by Sajjad Parvez an employee of Cargo Care. He further maintains that since the offence with which the petitioner stands charged is punishable under section 9(c) of the Control of Narcotic Substances Act XXV of 1997, section 51 bars the grant of bail to him. In reply, learned counsel for the petitioner submits that the petitioner is not liable to any punishment under the Control of Narcotic Substances Act, 1997, promulgated in March, 1997, because the offence in question was allegedly committed on 11-3- 1996, when the Control of Narcotic Substances Ordinance XIII of 1996 was holding the field which did not bar the grant of bail to an accused person involved in the offence. Section 44 of said Ordinance provided that the provisions of the Code of Criminal Procedure, 1898 shall apply, mutatis mutandis, in respect of cases tried under the said Ordinance. As regards the issuance of cheque by Messrs Ehsan Sports to Messrs Cargo Care, he stated that Messrs Ehsan Sports is a reputed firm which exports sports goods in large quantity and that the cheque, date 31-3-1996 issued to Messrs Cargo Care could not be linked with the consignment allegedly booked on 11-3-1996 by Messrs Champ Sports through Hasnain Cargo and further that the petitioner had no connection whosesoever with that firm.
6. The answer to the question as to whether the petitioner would be triable under the Control of Narcotic Substances Act, 1997, or under the Control of Narcotic Ordinance, 1996, can be found in the case decided by this Court titled Muhammad Ashraf v. The State (PLD 1986 SC 42) wherein it was observed that the relevant date for this purpose would be the date of the commission of the offence. Furthermore, subsection (c) of section 78 of the Control of Narcotic Substances Act, 1997, saves proceedings under the repealed law by providing that the promulgation of the ibid Act would not affect any investigation, legal proceedings or remedy and the same may be instituted, continued or enforced or any penalty, forfeiture or punishment may be imposed, by the Courts or Authorities competent to investigate, or try an offence under such law as if the said law had not been repealed. (See PLD Unreported Statutes, 1997 p.527), Kh. Fakharuddin v. Hasinuddin Qureshi and 3 others (PLD 1980 Lah. 778) may usefully be cited wherein it was held that rights of parties are to be decided according to law existing at the time of commencement of action, which in the present case would be 11th March, 1996, when the consignment in question was booked.
7. The Control of Narcotic Substances Ordinance, 1996, under which the petitioner is to be tried, in view of the legal position discussed above, does not bar the grant of bail to an accused person, or the applicability of Criminal Procedure Code as provided by section 51 of the Control of Narcotic Substances Act, 1997. Bails were not uncommon in the cases registered under the Narcotic laws.
For example in the case titled Mst. Fahmida v. The State (1997 SCMR 947) bail was granted by this Court in a case under Narcotic Substances Ordinance for violation of the provisions of section 103, Cr.P.C.
Even if it is assumed for the sake of arguments that the petitioner is to be tried under the existing law i.e, Control of Narcotic Substances Act, 1997, still he can be admitted to bail notwithstanding the bar contained in section 51 of Act XXV of 1997. Section 51 reads as under:-- "51. No bail to be granted in respect of certain offences:--
(1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."
' The above section bars the grant of bail to an accused person under sections 496 and 497, Cr.P.C.
Only and that too when he is charged with an offence punishable with death. It is silent about the powers of Courts under section 498, Cr.P.C. Which is an independent section. It is pertinent to note that in section 51 of Act XXV of 1997 only sections 496 and 497, Cr.P.C. Are mentioned without any specific mention of section 498, Cr.P.C. Indicating that what was intended to have been excluded had been expressly excluded. If the Legislature had intended to exclude section 498, Cr.P.C. Also there is no reason why it should not have mentioned the same in section 51 of the Act. It otherwise looks anomalous that a Court may grant pre-arrest bail to a person accused of an offence punishable with death in exercise of powers under section 498, Cr.P.C. But the same Court would be incompetent to grant bail if approached by a person for bail after arrest on the same allegations.
' Guidance can be had from Altaf Hussain v. State (PLD 1985 Lah. 10) wherein it was held by a Division Bench of the Lahore High Court, that the High Court's power under section 498, Cr.P.C.
Remained unaffected and had not been excluded by Ordinance IX of 1984 (Offences in Respect of Banks (Special Courts) Ordinance, 1984. A fine distinction was brought out by the Court by holding that the High Court's power under section 498, Cr.P.C. At the trial stage had not been excluded by section 10 of the said Ordinance. In this context the principles of interpretation of Statutes as highlighted by this Court in State v. Qaim Ali Shah (1992 SCMR 2192 at p.2217) may be referred to which are to the following effect:--
(i) That a statute which transgresses' n the rights of a subject whether as regards his person or property should be so construed, if possible, which may preserve such rights;
(ii) that if two views of a provision of a penal statute are possible, one which favours an accused person be preferred over the other;
(iii) that the jurisdiction of the superior Courts cannot be abolished or ousted unless this is done by express, clear and unambiguous words or clear intendment."
8. It is a cardinal principle of criminal justice that an accused person is presumed to be innocent till the time his guilt is proved beyond reasonable doubt by the prosecution and, therefore, an accused person during the trial stands on different footing that an accused person against whom a competent Court has returned the verdict of guilt, as in the latter case the presumption of innocence would disappear. It was observed in Qaim Ali Shah's case (supra) at p. 2221) that:-- "We should not be oblivious of the fact that ours. Constitution guarantees fundamental rights and Article 2A thereof, enshrines Islamic mandates and we are living in an era in which the enforcement of the human rights has become an international issue. So, the Courts while construing the provisions of statutes should make efforts that the interpretation of the relevant provisions of the relevant statute should be in consonance with the above Articles of the Constitution and the grand norms of human rights. The view which I am inclined to take seems to be in accord with the above approach."
' In the aforementioned case the provisions of section 561-A, Cr.P.C. Were also held to be available in appropriate cases, despite the bar contained in section 7 of the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) in the exercise of powers under section 426, Cr.P.C.
' As to the applicability of the provisions of Code of Criminal Procedure a reference may be made to section 47 of Act XXV of 1997, which provides that:-- "47 Application of the Code of Criminal Procedure, 1898. ---Except as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence), shall apply, to trials and appeals before a Special Court under this Act."
If the above provisions are read conjunctively with section 51 of the Control of Narcotic Substances Act XXV of 1997, it is clear that applicability of sections 496, 497 and 498, Cr.P.C. Is not totally barred in respect of the cases under the ibid Act, but the only prohibition is on the grant of bail to a person accused of an offence punishable with death while in other cases under the said Act bail may be allowed in suitable cases. It would be worthwhile to point out that under this law there is no prohibition on the suspension of sentence of a convict during the pendency of his appeal. If this is so, how can the intention of law, be, to deny the concession of bail to an under trial prisoner merely on the basis of accusation in the F.I.R.
9. In order to see the law and practice of the grant of bail or otherwise to an under trial accused person or a convict in the offences under the Special Laws, a reference may be made to the case- law on Ordinance IX of 1984. Offences in Respect of Banks (Special Courts) Ordinance, and Act XV of 1975, Suppression of Terrorist Activities (Special Courts) Act, 1975. A detailed review of the case- law was made by this Court in the case titled The State v. Qaim Ali Shah (supra) (at page 2192) wherein the respondent who alongwith others was facing trial under the Suppression of Terrorist Activities (Special Courts) Act, 1975, had been allowed bail by a Division Bench of the High Court of Sindh, during the pendency of the trial, in a case under section 302/307/120-B/34, P.P.C. For causing the death of 26 persons and injuries to a number of persons and the State had moved an application for the cancellation of his bail. The relevant paragraphs of the judgment authored by Ajmal Mian, J., the present Chief Justice of Pakistan are reproduced below:-- "19. The review of the above case-law 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 seeks to be in line with the reasoning of Salahuddin Ahmed, J. In the case of Ch. Zahur Ilahi (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 also in accordance with the well-settled principles of interpretation of statutes, namely---
(i) that a statute which transgresses on the rights of a subject whether as regards his person or property should be so construed, if possible, which may process such rights;
(ii) that if two views of a provision of a penal statute are possible, one which favours an accused person be preferred over the other;
(iii) that the jurisdiction of the superior Courts cannot be abolished or ousted unless this is done by express, clear and unambiguous words or clear intendment.
20 I may also mention that in section 7 of the Act, the High Court, which is a Court of record, has been named as an Appellate Court and therefore, the well-settled principle of jurisprudence that when an established Court without more is provided as a forum for a particular redress, it will be implied that the ordinary incidents of the procedure of that Court are to attach to it is has been held inter alia in the case of National Telephone Company Limited (In Liquidation) and another v.
His Majesty's Postmaster General, 1913 AC 546, the case of Secretary of State of India v. Chellkani Rama Rao and others AIR 1916 PC 21, the case of Maung Ba Thaw v. Ma Pin 1961 IA 158, the case of Hussain Bukhsh v. Settlement Commissioner and others PLD 1970 SC 1, and the case of In re: Suo Motu Shariat Review Petition No,1-R of 1979, PLD 1990 SC 865, will be applicable to the present case to the extent that the provisions of the Code, which have been expressly excluded by subsection (1) of section 7 of the Act and which are not inconsistent with the provisions of the Act, shall remain available, and, therefore, not only section 497, Cr.P.C. But even section 561-A, Cr.P.C. Can be pressed into service, in an appropriate case as has been held by Salahuddin Ahmed, J., in the case of Chaudhry Zahur Ilahi (supra). However, I may state that the question of applicability of section 561- A, Cr.P.C. Needs further examination in depth, on which I intend to dilate upon later on.
' 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 (PLD 1985 Lah. 10) 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.
21. I may now advert to the question, whether provisos 1 and 3 to subsection (1) of section 497, Cr.P.C. Can be pressed into service by the Special Court. In this regard, it may be pertinent to observe that the main object of subsection (8) of section 5-A of the Act seems to be that it has done away with the distinction between bailable and non-bailable offences by substituting the same with the expression of scheduled offences. All the scheduled offences have been made non- bailable, though some of the offences included in the Schedule are bailable offences under Cr.P.C.
To this extent, there is inconsistency between subsection (8) of section 5-A of the Act and subsection (1) of section 497, Cr.P.C. But there is nothing in above subsection (8) of section 5-A of the Act which may be construed as inconsistent to provisos 1 and 3 to subsection (1) of section 497, Cr.P.C. Even in Allied Bank case, it has been held that section 5(6) of the Ordinance does not constitute 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 and, because of that, it has been held that subsections (2) to (5) of section 497 of the Code remained available to the Special Court and the High Court. In my view by above, parity of reason provisos 1 and 3 in subsection (1) of section 497, Cr.P.C. Can be pressed into service by the Special Court.
' It may be pertinent to point out the original section 497 of the Code as was enacted in 1898 did not contain above provisos 1 and 3 to subsection (1) of section 497, Cr.P.C. However, with the passage of time, it was felt that an exception to the rule contained in subsection (1) of section 497 should be made in respect of a person below the age of 16 years, a woman and a sick or infirm person, so in 1923 proviso 1 to subsection (1) of section 497, Cr.P.C. Was added by the Code of Criminal Procedure (Amendment) Act, 1923 (Act XVIII of 1923) in order to enable the Court to grant bail to any person under the age of 16 years or to any woman or to any sick or infirm person who otherwise on merits would not be entitled to bail.
' It seems that the superior Courts in some of the cases held that inordinate delay in prosecution of a criminal case amounts to abuse of process of Courts/law warranting grant of bail on the above ground. In this regard reference may be made to the case of Riasat Ali v. Ghulam Muhammad and another (PLD 1968 SC 353), the case of Ahrar Muhammad and others v. The State (PLD 1974 SC 224) and the case of Malik Ghulam Jilani v. Station House Officer, Police Station Gulberg, Lahore and 2 others (PLD 1975 Lahore 210). It appears that the Legislature took notice of the above judicial dictum and in order to give statutory recognition to the above ground and also probably on account of overcrowding of jails, has enacted proviso -3 to subsection (1) of section 497 through Code of Criminal Procedure (Second Amendment) Ordinance, 1979 (Ordinance LXXI of 1979), (gazetted on 22-12-1979) providing the statutory delay mentioned therein as a ground for admitting an accused person to bail in respect of non-bailable offences. It may also be stated that proviso 4 was incorporated by Code of Criminal Procedure (Second Amendment) Ordinance, 1983 (Ordinance XXXII of 1983) providing exception to above proviso 3 by laying-down that the provision of the third proviso shall not apply to a previously convicted offender or to a person who, in the opinion of the Court is hardened or dangerous criminal. In my opinion, the above provisos 1 and 3 contain independent grounds for bail in respect of non-bailable offences and, therefore, in the absence of express exclusion of section 497, Cr.P.C. In subsection (8) of section 5-A of the Act, the above ground shall be available to the Special Court as well
22. As regards the question, whether the High Court can grant bail to a convict during the pendency of his appeal, it may be observed that in the Allied Bank case as well as in the case of Abdul Khaliq (supra) decided by a Full Bench of the Sindh High Court, it has been held that since application of section 426, Cr.P.C. Has been expressly excluded by subsection (1) of section 7 of the Act which inter alia deals with the power of the High Court as an appellate forum no bail can be granted by the High Court or by any other Court to a convict during the pendency of his appeal under section 7(1) of the Act, before the High Court. However, in Abdul Khaliq's case (supra), has also been held that since the jurisdiction of the High Court under section 561-A, Cr.P.C. Has not been specifically and categorically taken away, the above provision can be pressed into service in an appropriate case which can be called a case of hardship. This Court in the Allied Bank case though was inclined to favour invocation of above section 561-A, Cr.P.C. In the case of inordinate delay but had left the above question open.
' I am inclined to hold that during the pendency of an appeal the High Court cannot release a convict on bail in view of the exclusion of the application of section 426, Cr.P.C. By section 7(1) of the Act and that the power to release a convict during the pendency of his appeal cannot be pressed into service by the High Court as an ancillary or incidental or independent from section 426, Cr.P.C.
As has been held in Mirza Jawad Beg's case, Ubedullah's case, Muhammad Yaqub's case and the case of Syed Zeeshan Akhtar Zaidi (supra). The above exclusion seems to have rational as there is a marked distinction between a case in which a person is facing trial for an offence allegedly committed by him and a case in which a competent Court has recorded a finding of guilt against the accused person. It is a cardinal principle of criminal jurisprudence that an accused person is presumed to be innocent till the time his guilt is proved beyond reasonable doubt by the prosecution and, therefore, an accused person during the trial stands on different footing than an accused person against whom a competent Court has returned the verdict of guilt, as in the latter case the above presumption of innocence disappears. Keeping in view the above marked distinction, Hamoodur Rehman, C.J., in the case of Abdul Karim and others v. The State 1969 SCMR 312 (supra) while declining leave against the order of the erstwhile High Court of West Pakistan Lahore refusing to grant of bail after conviction for a bailable offence, held that there can be no such general rule that in every case where a person is convicted of a bailable offence, he must be enlarged on bail during the pendency of the appeal and that section 426, Cr.P.C. Clearly gives a discretion to the High Court to grant or refuse bail although the discretion must like all other discretions be exercised upon sound and judicial principles.
23. The question which needs further consideration is, as to whether in no case during the pendency of an appeal the High Court can release a convict on bail or can it press into service section 561-A, Cr.P.C. In the case of Lala Jairam Das and others v. Emperor (AIR 1945 PC 94), the Privy Council has held that Chapter 39 of the Code of Criminal Procedure together with section 426 contains a complete and exhaustive statement of the powers of a High Court in India to grant bail and excludes the existence of any additional inherent power in a High Court relating to the subject of bail and that section 561-A of the Code confers no such power.
' The above judgment of, the Privy Council was followed by this Court in the case of Muhammad Samiullah Khan and another v. The State (PLD 1963 SC 237), in which it has been held that jurisdiction under section 561-A, Cr.P.C. Is not available where other express remedy is provided by the Code.
' In the case of Ghulam Muhammad v. Muzammal Khan and 4 others (PLD 1967 SC 317), this Court reiterated the above legal proposition by holding that jurisdiction under section 561-A, Cr.P.C. Is not an alternative or additional jurisdiction and it is not to be used to divert ordinary course of criminal procedure. The same view was taken in a subsequent case, namely, in the case of Khawaja Fazal Karim v. The State and others (1986 SCMR 483). It is, therefore, evident that section 561-A, Cr.P.C.
Cannot be invoked in aid where there are express provisions dealing with a particular subject, for example, section 426, Cr.P.C. Empowers an Appellate Court to suspend the sentence or to admit a convict to bail during the pendency of a criminal appeal against conviction. In presence of above express provisions in the Code, section 561-A cannot be pressed into service nor the above provision can be used to defeat the express intention of the Legislature, for example, in the present case subsection (1) of section 7 of the Act excludes the application of section 426, Cr.P.C. During the pendency of an appeal under the Act before the High Court. If the High Court was to invoke section 561-A, Cr.P.C. Because of the above exclusion of section 426, Cr.P.C. It may amount to defeating the legislative intent. However, it may be pointed out that the exclusion of the application of section 426, Cr.P.C. By virtue of section 7(1) of the Act during the pendency of an appeal of a convict before the High Court is founded on the assumption that the appeal would be disposed of 'within three months as provided in subsection (2) of above section 7 of the Act, but in case an appeal of a convict remains pending for a number of years either on account of delaying tactics on the part of the Prosecuting Agency or because of the heavy work load of the Court, would it be fair and just to deny hint bail on the ground of delay. In may view, since it has been held by this Court in more than one cases already referred to hereinabove in para. 21 that the delay in prosecution of a criminal case amounts to abuse of process of Court/law warranting grant of bail, the High Court in a case of above nature may press into service section 561-A, Cr.P.C. But not as a matter of course or as a substitute to section 426, Cr.P.C. The delay should be of the nature which may be repulsive and unconscionable.
' Similarly if a convict during the pendency of his appeal before the High Court develops an ailment of the nature that keeping him in detention may result into his death and that he cannot be provided requisite treatment under detention in the Government and/or other hospitals, the High Court may in such a case invoke section 561-A, Cr.P.C. And may release him on bail, as such an order will be within the ambit of the expression 'or otherwise to secure the ends of justice', used in above section 561-A, Cr.P.C.
' We would not be oblivious of the fact that our Constitution guarantees fundamental rights and Article 2A thereof enshrines Islamic mandates and we are living in an era in which the enforcement of the human rights has become an international issue. So, the Courts while construing the provisions of statutes should make efforts that the interpretation of the relevant provisions of the relevant statute should be in consonance with the above Articles of the Constitution and the grund norms of human rights. The view which I am inclined to take seems to be in accord with the above approach.
24. On merits, it was urged by Mr. Aftab Ahmad, learned Advocate-General, Sindh that the ailments of the respondents were not of the nature which warranted grant of bail to them by the High Court.
In this regard, it may be pertinent to observe that this Court has not granted leave to consider the above factual aspect as leave was granted to consider the above legal question as to the applicability of the ratio of the Allied Bank case. I am, therefore, not inclined to go into the above question. However, I may observe that the Court while admitting the accused person to bail on the medical ground in a case in which bail cannot be granted on merits because of the statutory prohibition is required to examine the question whether the nature of the ailment is such which warrants release of the accused person on bail and for what period. The appellant should have brought material before the High Court to negate the medical expert's views relied upon by the respondents.
25. I may observe that since there was difference of opinion between the two learned Judges of the Division Bench on the question, whether respondent Qaim Ali Shah was entitled to bail on merits, it would have been proper for the learned Judges to have referred the matter to the learned Chief Justice for referring the case to a third Judge instead of granting bail on the medical ground, the availability of which was debatable at that time.
26. The upshot of the above discussion is that since I have held that provisos 1 and 3 to subsection
(1) of section 497, Cr.P.C. Are available to the Special Court and the High Court in a case in which an accused person may be facing trial under the Act before the Special Court, the view of this Court to the above extent in the Allied Bank case is required to be modified. The orders appealed against are in consonance with the above view and, therefore, the above appeals are liable to be dismissed and, thus, they are dismissed."
' The reasons separately recorded by Mr. Justice Shafi-ur-Rehman, J. While concurring with the observations of Mr. Ajmal Mian, J., may also be usefully re-produced below:-- "My conclusions are that none of the remedial powers enjoyed by the High Courts under the Criminal Procedure Code are curtailed or superseded by the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the Act), The only modification made in the exercise of its powers is that it has been made exercisable by a Bench of not less than two Judges, with all its consequences. My reasons for this view are as hereunder: ' 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).
' Section 4 of the Act stated with the provision ' Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court. In 1978 (Ordinance XX of 1978) the first proviso was added to the effect that 'Provided this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the constitution of the Court', In 1984 (Ordinance XI of 1984) second proviso was added to the effect: 'Provided further that the Government constituting a Special Court may, by notification in the official Gazette, direct that the Special Court shall have jurisdiction to try only such persons who have committed scheduled offences as may be specified in the notification'. In the context of these provisions, there will be two different types of trials, one under the ordinary law, the other under the special law, classification being based not on the nature of offence committed, not even on the basis of the date on which it was committed, but by reference to the date when the challan was submitted in Court. In one, the High Court will be possessed of all the remedial powers under the Code of Criminal Procedure. In the other not so. Such a discrimination will appear to be irrational.
' Secondly, the well-entrenched principle of interpretation of statutes concerning powers, procedures and jurisdiction is that when a question is stated to be referred to an established Court without more, it imports that the ordinary incidents of the ' procedure of that Court are to attach and also that general right to appeal from its decisions likewise attaches (National Telephone Company Ltd. v. Postamaster General (1913 A.C. 546) approved and applied in Hussain Baldish v.
Settlement Commissioner (PLD 1970 SC 1). Section 7 of the Act provides a venue of appeal to the sentenced and to the State without enumerating even by reference any of the powers of such an Appellate Court. Two procedural modifications are, however, specified namely that the appeal shall be heard and decided by a Bench of not less than two Judges of the High Court and it has to be disposed of within three months of its institution. Except for these modifications, the powers of the High Court by their non-specification have been left intact.
' There are a number of reasons why the expression 'no Court' in section 7 excludes the High Court as the Appellate Court with two modifications just indicated. The first and the most powerful one has already been indicated by reference to Article 203 of the Constitution. The second is that the appellate powers always include power to alter and reduce the sentence and that too is revision of the sentence. It is impossible to imagine that though appeal against sentence is competent but its revision in appeal is barred. 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.
' Thirdly, the Act has the sole object of providing speedy trial through Special Courts. It heavily draws on principle of incorporation of statutes or provisions by reference. For example, subsection
(1) of section 5-A allows the Special Court to follow the procedure prescribed by the Code for trial of cases by Magistrates where no specific provision has been made. Section 6 confers on the Special Court all the powers conferred by the Code on a Court of Session exercising original jurisdiction. In matters of contempt, the Special Court has the same powers as High Court. As pointed out by my learned brother (Rustam S. Sidhwa, J.) the powers of the Special Court and the High Court are not specified. Only the prohibitions find a place and that too in generality. With such interlacing of powers and procedures, and massive incorporation by reference it is only necessary and proper that a harmonious and orderly Court procedure for administering criminal justice should emerge with no inroad on powers of superior Courts unless unavoidably following from the text."
Guidelines for the Courts for the disposal of bail matters as given by this Court in Tariq Bashir v. The State (PLD 1995 SC 34) may be advantageously reproduced bellows:-- "There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfied the Court that there are no reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence punishable with death, imprisonment for life or with ten years' imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make tentative assessm ent i.e, will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable no permissible at bail stage.. The bail order must be carefully balanced and weighed in scale of justice and requirements of relevant law."
' In Amir v. The State (PLD 1972 SC 277) it was observed that for the purposes of bail law is not to be stretched in favour of prosecution and the benefit of doubt, if any, must go to the accused. In Khalid Saigol v. State (PLD 1962 SC 495) it was observed that the Court has to look at the material placed before it by the Investigating Officer and be prima facie satisfied that some tangible evidence can be offered which, if left, unrebutted, may lead to the inference of guilt, and that heinousness of the offence is no ground for rejection of bail. In Nadra v. Jamiat Khan and others (PLD 1968 SC 310) it was observed that ordinarily the framing of a charge upon taking evidence referred to in section 208 and examination of the accused would furnish a ground for such a belief as is required to be found under section 497, Cr.P.C. In Muhammad Ayub v. Muhammad Yaqub and The State (PLD 1966 SC 1003), while discussing the nature and scope of power under section 498, Cr.P.C. It was observed that though it barred the grant of bail to a convict person, it empowered the Courts to grant bail to an undertrial accused person. Since no reasons for putting embargo on the powers of the Courts to grant bail under sections 496 and 497 Cr.P.C. Are mentioned in section 51 of Act XXV of 1997, it cannot be said whether they are founded on justice and equity. In the recent years the matter of granting bail to an accused .Person has been much widened and as observed by the Supreme Court of India in the case of State of Rajasthan v. Balchand reported in AIR 1977 SC 2447, that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses etc. It would be pertinent to mention here that in the present case though the petitioner is behind the bars since 27-5-1997, no charge has yet been framed against him and only an incomplete challan has been submitted in the Court. The mere accusation against him cannot be equated with indictment. It would be unfair to deny the concession of bail to a person arrested on the suspicion only, simply for the reason that the offence incorporated in the F.I.R. Is punishable with death. It is settled proposition of law that suspicion, however, strong cannot take the place of proof. The Court may decline bail to an undertrial accused if upon tentative assessment of the material produced before it by the Investigating Agency it finds a prima facie case against him but where no such material is available it would be unjust to refuse bail to him.
In the instant case though the petitioner remained on physical remand with the Investigating Agency for a couple of days, no recovery of any narcotic substance was effected from him, nor any other material connecting him with the Champ Sports i.e,. The firm which exported the consignment in question, produced before us. The legality and evidentiary value of the statement allegedly made by Asif Javed co-accused before the raiding party implicating the petitioner in the offence has to be considered by the trial Court alongwith other circumstances to find out the extent to which he is involved in the offence and whether the material available against him prima facie connects him with the alleged offence.
' As already observed, the petitioner is behind the bars since 27-5-1997 without any progress in the trial, a good prima facie case for the grant of bail is made out in view of the circumstances mentioned above, therefore, the petition is allowed and converted into appeal and Gul Zaman petitioner is admitted to bail in the sum of Rs,1,00,000 (One Million) with two sureties in the like amount to the satisfaction of the learned trial Court.
' SH. RIAZ AHMED, J.---I have had the advantage of going through the judgment proposed to be delivered by my learned brothers Raja Afrasiab Khan and Ijaz Nisar, JJ. I regret my inability to agree with them on the question of grant of bail to the petitioner in this case. As far as the question of jurisdiction under sections 497 and 498, Cr.P.C., with regard to the power of the Court to grant bail in the light of the embargo contained in section 51 of the Anti-Narcotics Control Act, 1997 (hereinafter called the Act) is concerned, there is no cavil with the principle of law laid down by my learned brother Ijaz Nisar, J. The question has been dealt with by my learned brother in a most lucid manner and I agree with the views of my learned brother that despite the provision contained in section 51 of the Act, the Sessions Court and the High Court have the power to grant bail. However, on merits I would hold that it is not a fit case for the grant of bail on account of the following circumstances:
2. Syed Rahat Ali Shah, Field Investigating Officer, Anti-Narcotics Force, got a case registered with the Police Station A.N.F., Model Town, Lahore under the provisions of sections 9 and 15 of the Act. The complainant in this case disclosed in the F.I.R. That from reliable sources, he learnt that since the year 1995 one Mahmood Hasan Harvi, resident of Karachi was a member of a gang of smugglers, who were operating at international level in sending Charas to other countries from Pakistan.
According to the complainant, a consignment of 50 cartons had been sent by M/s. Champ Sports, Muslim Colony, Daska Road, Sialkot to M/s. Sears in Montreal Quebec, Canada on Lufthansa Airways Flight No,IH 902. The aforesaid consignment was checked at Sharja and out of the stock of medicinal balls 400 kg. Hashish (Charas) was recovered. On the basis of this information, a raiding party headed by Muhammad Younus, Joint Director, A.N.F., the first informant and other officials at Lahore was formed at Lahore, who proceeded to Sialkot and on the information given to the raiding party, the premises of M/s. Hasnain Cargo, Shahpura Ugoki Road, Sialkot was raided. One Asif Javed was taken into custody, who informed the raiding party that the Hashish sent in the medicinal balls belonged to Gul Zaman petitioner because he had booked this cargo on behalf of Gul Zaman. Consequent to this information, the petitioner Gul Zaman was taken 'into custody from Fine Sports Centre, Sialkot. During investigation and interrogation, one Nasim Amin Butt was also arrested. During the investigation it further transpired that a cheque of Rs,1,00,000 bearing No,43680350 dated 31-3-1996 given by one Amanullah owner of Ehsan Sports to Asif Javed, co- accused, who delivered the same to Sajid Pervaiz, an employee of the Cargo Care, Main Branch, Sialkot and deposited the amount in the account of Cargo Care. The Allied Bank at Sialkot also varified that Account No,076-8 belonged to Ehsan Sports, Sialkot, being a partnership firm operated by Ehsanullah and Amanullah. Further information was collected by the Investigating Agency from the Chambers of Commerce, Sialkot and it was discovered that among other proprietors, the petitioner was also one of the directors of Ehsan Sports. Sajid Pervaiz, employee of the Cargo Care stated that in March, 1996, Champ Sports sent 50 cartons through Asif Javed containing medicinal balls and the expenditure on freight amount was Rs,2,00,000 and Asif Javed gave a cheque of Rs,1,00,000 dated 31-3-1996 issued by Ehsan Sports and the remaining Rs,1,00,000 was paid to him in cash excluding Rs,16,000 as outstanding amount. Similarly, during the investigation, it further transpired through the record of the Export Promotion Bureau, Sialkot that Champs Sports belongs to Nasim Amin Butt and the Customs Authorities had registered a case against Nasim Amin Butt for sending Charas weighing 2975 kg. Vide F.I.R. No,16 of 1996 dated 14-10-1996 in the similar manner.
3. At the Sharja International Airport, the consignment was checked after authorization granted by the Attorney-General and it was found that the Charas in the form of slabs was wrapped in nylon each weighing 504 grams and the total weight was 400 kg. And the same was taken into possession in presence of Capt. Saleh el-Kassir and the Second Commander, Officer Aly Bouhandy.
In June, 1997, the Chemical Analyst certified that the goods were that of cannabis.
4. My learned brothers have decided to grant bail to the petitioner on the ground that merely on the basis of uncorroborated statement of Asif Javed, one of the co-accused, connecting the petitioner with the crime, the concession of bail cannot be withheld and secondly there has been delay in the submission of challan and the trial and furthermore, no recovery has been effected from the petitioner. In my humble view, ample corroboration exists on the record, which tends to connect the petitioner Gul Zaman with the commission of crime.
5. Corroboration means and consists of any circumstance, which would tend to connect a person with the commission of crime. Cheque of Rs,1,00,000 was issued by Ehsanullah, owner of Ehsan Sports, which was given to Asif Javed, who had booked the contraband material on behalf of Gul Zaman petitioner and Asif Javed, after getting the cheque encashed from the bank, deposited the amount in the account of the Cargo Care in Schon Bank. The Cargo Care is a firm, which is engaged in clearance of goods and renders services for sending consignments abroad. Asif Javed works on behalf of the Cargo Care. Ehsan Sports is a partnership firm owned by Ehsanullah and Amanullah and according to the record of the Chamber of Commerce, petitioner Gul Zaman is also one of the directors of Ehsan Sports. Ehsan Sports had issued this cheque towards the freight charges to Asif Javed, an employee of the Cargo Care, who had booked this material on behalf of the Cargo Care, which renders services to the exporters. Asif javed had no animus with the petitioner so as to involve him falsely in this case. No doubt he is a co-accused, but his statement in such-like cases can be taken into consideration to determine whether there are reasonable grounds to believe that the petitioner is guilty or not, for having committed an offence punishable with death. The petitioner is one of the directors of Ehsan Sports and in my humble view this firm was operating in this nefarious activity of sending Charas abroad. Similarly, Champ Sports belongs to Nasim Amin Butt against whom the Customs Authorities at Karachi had registered a similar case vide F.I.R. No,16 of 1996 dated 14-1Q-1996 for smuggling Charas weighing 2975 kg. The criteria for grant of bail in non-bailable offences punishable with death is laid down in sections 497, Cr.P.C.
And section 498 being ancillary to section 497, in my humble view, the High Court rightly rejected the bail application. The offence allegedly committed in this case is punishable with death under section 9 of the Act. The criteria for grant of bail in such-like cases as contained in section 497, Cr.P.C. Is that the accused in such-like cases shall not be released if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death. The expression "reasonable grounds" has been interpreted by this Court as well as the High Courts. Plethora of case-law on the subject is unanimously of the view that ' reasonable grounds' means; the grounds which appeal to a reasonable person. The law laid down by this Court from time to time while interpreting this provision is as follows: The grant or refusal of bail in a non-bailable case is a matter of discretion with the primary Court, which is inquiring into or trying the case. Discretion has to be exercised in a judicial manner with due regard to the circumstances of each case without any propensity to unnecessarily jeopardize the liberties of the people, who are accused of the criminal offences. For offences punishable with death, the discretion is subject to the limitation that bail is not to be allowed to an accused person if it is shown that there are reasonable grounds to believe that he has committed such an offence.
In order to ascertain whether reasonable grounds exist or do not exist, the Courts do not have to probe into the merits of the case. They have only to look at the material placed before them by the prosecution to see whether some tangible evidence is available against the accused person, which, if left unrebutted, may lead to the inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicion nor with tested or proved evidence which the law requires for conviction of a person for an offence. See Nisar Ahmed v. The State (PLD 1971 SC 174).
Similar view was expressed by this Court in Khalid Saighal's case (PLD 1962 SC 499); The Courts while determining whether reasonable grounds exist or not, are under obligation to assess prosecution evidence tentatively and definite finding cannot be given for avoiding prejudice to be caused to the prosecution or the defence, as the case may be. A Court cannot have resort to an elaborate sifting of evidence and it has to go by its assessment of the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case (PLD 1978 SC 256). In Abdul Malik v. The State (PLD 1968 SC 349), the expression "reasonable grounds" was interpreted as follows:-- "'Reasonable grounds' is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, ' grounds' being a word of higher import than ' suspicion'. However, strong a suspicion may be, it would not take the place of reasonable grounds. Grounds will have to be tested by reason for their acceptance or rejection. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial. If such grounds exist tending to connect the accused with the crime, bail should be refused without the need to go into a deeper appreciation of the merits of those grounds and the evidence on which they are rested, which functions are to be assumed at the trial stage. However, if it is found that the charge is groundless, i.e, to say unsupported by any evidence or instead of the grounds being reasonable their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Court's discretion is removed which must then be freely exercised in favour of the grant of bail."
6. The other guiding principles are that the bail cannot be withheld as punishment. As the heinousness of offence is also no ground to withhold the concession of bail if prima facie there are reasonable grounds to believe that the person is not guilty of commission of the offence.
Furthermore, it is to be ensured that a person accused of the commission of offence faces his trial and does not defeat the same by running away or by destroying or suppressing the evidence against him and such person should not be let loose on the society so as to think that he might just as well hang a sheep as for a lamb. As far as the question of delay is concerned, before the insertion of provisos (a) and (b) into section 497, Cr.P.C., by the Legislature, the grant of bail on the ground of delay was again a question of fact, which had to be determined in each case according to its own facts. In the case reported as Riasat Ali v. The State (PLD 1968 SC 353), this Court laid down that the prosecution cannot be permitted to enlist will of the Court on its side directly or indirectly in prolonging the worries and harassment of an accused person, which are inevitable caused by a protracted detention without trial: Leisurely steps taken in filing the challan, tardy and halting production of evidence or seeking unnecessary adjournments except that necessitated by force of circumstances must be strongly deprecated. While laying down these salutary principles, the Court also held that delay in the prosecution of a case or procrastination of the proceedings in a trial furnishing a ground of bail have to be, weighed and judged on merits of each case. In the case of Moula Bakhsh v. The State (1971 SCMR 196), this Court took serious view of the matter that the accused were rotting in jail for 8 years and statement of not a single witness had been recorded and thus the Court directed the petitioners to renew their bail application before the Sessions Judge. In the case reported as Shahab Khan v. The Crown (PLD 1956 Federal Court 117), this Court laid down that delay was sufficiently powerful element weighing in favour of the grant of bail.
In the case reported as Muhammad Nawaz v, The State (1968 SCMR 683) it was held that the mere fact that there has been inordinate delay in the disposal of a criminal case is not itself a ground for granting bail to a person accused of committing offence punishable with death. As already discussed, the grant of bail on the ground of delay had to be judged in the light of the facts and circumstances of each case. The Legislature having taken note of the observations of this Court and in the light of the prevailing objective reality on the ground, inserted provisos 3 and 4 to section 497, Cr.P.C., which run as under:-- "S.497 ............................................................................
(a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded."
8. It is, thus, obvious that statutory recognition has to be given to the delay as a ground for the grant of bail if the trial in a case punishable with death does not conclude within a period of two years. In this view of the matter, I would respectfully disagree with my learned brothers that the petitioner was entitled to the grant of bail on the ground of delay. The case was registered in May, 1997. The petitioner was arrested soon thereafter and we were informed in the Court that the challan is being submitted within 15 days. I am, therefore, of the view that the delay in this case does not constitute a ground on the basis of which the petitioner was entitled to the grant of bail because two years have not elapsed.
9. The next question which has often worried me is the extent and scope of interference by this Court on the question of grant or refusal of bail. In my humble view, the correct position was laid down by Mr. Justice Yaqoob Ali Khan, J. (as he then was) in the case reported as Sultan Khan v.
Amir Khan and others (PLD 1977 SC 642) wherein it was laid down by this Court that since the Supreme Court is primarily Constitutional Court and, thus, is not expected to go into the matters concerning grant of bail by the High Court. This Court had refused to interfere because it was found that the order of the High Court did not suffer from any legal or factual infirmity of any fundamental nature so as to warrant interference by this Court.
10. Judging the facts of this case on the touchstone of the above two judgments, I am of the view that the High Court had properly exercised discretion and the order impugned did not suffer from any legal or factual infirmity of any fundamental nature so as to warrant interference by this Court.
11. Resultantly, I would order that this petition be dismissed.
ORDER OF THE COURT ' By majority of 2 to 1 the above criminal petition is allowed, converted into appeal and Gul Zaman petitioner is admitted to bail in the sum of Rs,10,00,000 (one Million) with two sureties in the like amount to the satisfaction of the learned trial Court.