1. ' By this order we propose to dispose of M.A. No,1021 of 1998 filed on behalf of the appellant under section 561-A, Cr.P.C. For suspension of operation of the impugned judgment passed by the Trial Court on 9-6-1998 and for release of the appellant on bail pending disposal of the Appeal.
2. ' We have heard Mr. M.A. Kazi learned counsel for the appellant and Mr. S. Mamoon Hasan, Deputy Attorney-General for the State.
3. ' It has been contended by the learned counsel for the appellant that prosecution witnesses were disbelieved by the Trial Court in respect of co-accused Tariq and on the same set of evidence appellant was convicted; that no offence under sections 380, 420, 109 and 34, P.P.C., has been made out for which appellant was convicted; that the conviction has been recorded on the evidence of accomplices; that the appellant was throughout on bail before the Trial Court and he never misused the concession of bail; that the case is of hardship and appellant is entitled to bail.
4. He has placed reliance on the case of Manga Khan v. The State 1996 PSC (Crl.) 332.
5. ' Mr. S. Mammon Hasan, learned Deputy Attorney-General has contended that in view of provisions of section 10 of the Offences in respect of Banks (Special Courts) Ordinance, 1984, no Court has authority to make any order under section 426, Cr.P.C., and as such this Court has no jurisdiction to pass an order suspending the operation of the impugned judgment or to release the appellant on bail pending disposal of his Appeal. Reliance in this connection has been placed by the learned Dy.A.-G. On the case of Allied Bank Limited v. Khalid Farooq 1991 SCM R 599.
6. ' The case of Allied Bank Limited (supra) and provisions of section 10 of the Offences in respect of Banks (Special Courts) Ordinance, 1984, came for reexamination before the Honorable Supreme Court of Pakistan in the case of State v. Qaim Ali Shah (1992 SCM R 2192). The leading judgment in the case of State v. Qaim Ali Shah (supra) has been authored by Mr. Justice Ajmal Mian (now the Honorable Chief Justice of Pakistan) and after discussing a plethora of case laws his lordship had held that "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 While dealing the question of exclusion of section 426, Cr.P.C., his Lordship (at page 2220 of the judgment) in the case of State v. Qaim Ali Shah (supra) has held as under:--- "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 1996 SCMR 483. It is therefore, evident that section 561-A, Cr.P.C.
7. 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 provision in the Code, section 561-A, Cr.P.C. 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 him bail on the ground of delay. In my 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.
8. ' 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.
9. ' We should not be oblivious of the fact that our Constitution guarantees Fundamental Rights and Article 2-A 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."
10. From the afore-referred judgment, it is evident that powers under section 426, Cr.P.C., are not available to this Court while hearing an Appeal against the conviction awarded by the Special Court constituted under the Offences in respect of Banks (Special Courts) Ordinance, 1984 but in special circumstances, such as, inordinate delay in disposal of Appeal and serious ailment of the appellant during the pendency of his Appeal, the provisions of section 561-A, Cr.P.C. Can be invoked.
11. ' To release a convict during the pendency of his Appeal before this Court, as is apparent from the above, this Court is not completely devoid of powers to grant such relief. Testing the case of the appellant for suspension of his sentence and release on bail during pendency of the Appeal, on the parameters laid down by the Honorable Supreme Court of Pakistan in the case of State v. Qaim Ali Shah (supra), we are of the considered view that the appellant has failed to make out a case for suspension of his sentence and for his release on bail pending disposal of the Appeal as the conviction and sentence having been recorded per impugned judgment, dated 9-6-1998, there is neither any in-ordinate delay in disposal of the case nor there is anything on record to suggest that the appellant is an infirm or sick person.
12. ' The upshot of the above discussion is that M.A. No,I021 of 1998 is lc dismissed.