' Criminal case F.I.R. No,212, dated 21-5-1998 under sections 302/324/148/149, P.P.C. Was registered at Police Station, Saddar Muridke, District Sheikhupura, on the report of Ghulam Nabi. According to complainant, he had enmity of murders with Bashir Ahmad-accused. His cousins, Bashir Ahmad and Muhammad Akram started for G.T. Road when Muhammad Yousaf accused called out Bashir Ahmad and others. Bashir Ahmad, Tariq and Rashid accused armed with Kalashnikov, Mushtaq, Mehndi alias Pappu, Noor armed with .223 bore rifles emerged there. Noor shouted that Bashir Ahmad and Akram be murdered. Mushtaq, Mehndi alias Pappu accused, fired at Muhammad Akram. Tariq and Bashir Ahmad fired at Bashir Ahmad. Accused thereafter, left the spot. Bashir Ahmad died at the place of occurrence, while Muhammad Akram was removed to hospital where he also died.
2. Bashir Ahmad submitted an application for grant of pre-arrest bail. He was allowed pre-arrest bail, ad interim, but later the same was dismissed due to non-prosecution by order, dated 9-6- 1998 on account of absence of the accused. A second application followed two years later, and Bashir Ahmad was allowed bail before arrest by order dated 13-5-2000 on the ground that he was declared innocent.
3. Under consideration petition was submitted for cancellation of to Bashir Ahmad accused.
Learned counsel for the petitioner as well as respondent and State have been heard in the matter.
4. Learned counsel for the petitioner contended that anticipatory bail was allowed to respondent in violation of law on the subject and he could not have been allowed pre-arrest bail by the Special Court Suppression of Terrorist Activities as was done by it, in this case. It was submitted that the accused submitted an application for grant of pre-arrest bail which was rejected on 9-6-1998 and Bashir Ahmad became an absconder and two years thereafter was again allowed bail before arrest by the trial Court which was against all norms of justice and equity. It was submitted that effective firing at Bashir Ahmad deceased was specificall' ascribed to Bashir Ahmad, accused and case of prosecution against the accused was supported by witnesses and by no stretch of imagination, he could have been allowed pre-arrest bail in the case whereas his case was not fit for grant even of post-arrest bail. It was also submitted that Bashir Ahmad was involved in a number of other criminal cases and after being released from custody also committed another murder and criminal case F.I.R. No,471, dated 18-12-2000 under sections 302/148/149, P.P.C. Was registered against him and others, at Police Station Saddar, Muridke, and all these factors warranted cancellation of bail illegally allowed to the accused-respondent.
5. Learned counsel for State supported the prayer made by the petitioner and submitted that Special Court was not empowered to grant pre-arrest bail to the accused.
6. Learned counsel for the respondent on the other hand submitted that in numerous investigations, Bashir Ahmad respondent-accused was declared innocent and keeping in view that aspect of the case the trial Court allowed bail to him and the order granting bail was passed keeping in view the facts and circumstances of the case and as such the same could not be interfered with. It was also submitted that provisions of section 7 of the Act which were being pressed into service by the petitioner, related to appellate proceedings and these did not affect the powers or jurisdiction of the trial Court to allow bail to the accused.
7. The allegations contained in the First Information Report, inter alia, are to the effect that Bashir Ahmad-respondent, fired with Kalashnikov at Bashir Ahmad, deceased, who died at the spot.
Muhammad Akram brother of Bashir Ahmad was also fired at by a co-accused of Bashir Ahmad accused and he also lost his life. The prosecution has a prima facie case against Bashir Ahmad, accused. He moved an application for grant of pre-arrest bail and was allowed the concession but later absented from the lower Court and his application- was rejected on 9-6-1998. For almost two years Bashir Ahmed respondent-accused did not surface up but then came up with another application under section 498, Cr.P.C. And Judge, Special Court (Suppression of Terrorist Activities); Sheikhupura allowed anticipatory bail to the accused. We are of the view that this was done illegally by the trial Court.
8. The criminal case in which the respondent stands involved is triable by a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, XV of 1975. There is no dispute between the parties on this issue. The Suppression of Terrorist Activities (Special Courts)
Act, 1975 is a special law and its provisions would override the provisions of the general law on any particular subject encompassed by it. Provisions relating to grant of bail are contained in subsection (8) of section 5-A of the Act and read as:-- "(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."
' The Special Court has been given the power to grant bail to accused only by the afore-referred provision and this, too, has been done in negative terms which limit the sweep of powers so conferred. The Special Court does not have any plennary powers to grant bail to accused which Criminal Courts possessed by virtue of sections 497 and 498, Cr.P.C. The Special Court while adjudicating upon a bail application exercises its jurisdiction within the narrow sphere circumscribed by subsection (8) of section 5-A of the Act. The plain reading of the provisions would show it to be in pari materia with provisions of subsection (2) of section 497, Cr.P.C. By virtue of which Criminal Courts have the authority to enlarge an accused on bail where his case is found to be that of further inquiry. Undisputedly, provisions of section 497, Cr.P.C. Come into play at post- arrest stage and cannot be recoursed to for grant of bail in anticipation of arrest. So, is the case with provisions of subsection (8) of section 5-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975. By no stretch of imagination it can be construed as empowering the Special Court to grant bail at pre-arrest stage.
9. It was argued on behalf of the respondents that provisions of section 7 of the Act govern the proceedings before the appellate Court only and have nothing to do with proceedings before the trial Court. Section 7 is an omnibus section. It provides for a right of appeal to a convict as well as the State (in case of acquittal of accused) and also lays down certain prohibitions by prescribing save as aforesaid and notwithstanding the provisions of the Code or 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". Power to suspend sentence awarded to an accused is exercised by the appellate Court (e.g. The High Court) after conviction, while power under section 439 and/or 491, Cr.P.C. Can be recoursed to by the High Court both at pre-conviction as well as post-conviction stage. But as far as provisions of section 498, Cr.P.C. Are concerned, these can be invoked at pre-conviction stage only and those do not come into play at post-conviction stage. Therefore, it would be fallacious to urge that provisions of section 7 of the Act XV of 1975 apply only to appeals. The afore-referred part of section 7 of the Act ousts the jurisdiction of the Special Court---the trial Court or Courts (other than the High Court as held by the apex Court of the country in numerous cases), to exercise power under section 498, Cr.P.C. In cases relating to offences contained in the Schedule to Act XV of 1975 in unmistakable and unequivocal terms.
10. A Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975 has no jurisdiction to consider the application moved by an accused under section 498, Cr.P.C. The Special Court has no jurisdiction to grant of pre-arrest bail to an accused who is alleged to have committed a scheduled offence i.e, an offence contained in the scheduled to the Suppression of Terrorist Activities Act, 1975. Bashir Ahmad accused-respondent, could not have been granted pre- arrest bail as was done by the Special Court. As a consequence the application is allowed. The to Bashir Ahmad by order, dated 13-5-2000 passed by Mr. Ahmad Nawaz Ranjha, Judge, Special Court for Suppression of Terrorist Activities, Sheikhupura is hereby cancelled.
Bail cancelled.