1. ' GHULAM RABBANI, J.---Prosecution case in brief is that the complainant Mola Bux and accused Noor Ahmed Odho and his mother Hakim Zadi have strained relation on account of a dispute over property and such cases are pending in the Court. Accused are alleged to have been advancing threats to the complainant to withdraw these cases else they would have to face bad consequences. On 19-4-1998 at about 2-10 a.m. While the complainant, his father Badaruddin, uncle Fateh Muhammad, his brother Raja Khan and relatives Bashir Ahmed and Shehzado were sleeping in their house, on the barking of dogs, they woke up and in the electricity light, found in the courtyard of their house the applicant/accused Haque Nawaz with co-accused Usman, Anwar armed with guns, accused Noor Ahmed armed with Kalashnikov and two other unidentified culprits armed with lathi and hatchet respectively. It is alleged that accused Noor Ahmed instigated, on which the applicant and the said accused Noor Ahmed opened fire upon him (complainant). Also, accused Noor Ahmed, Usman and Anwar opened fire from their weapons on his father and uncle, and the unidentified culprits caused lathi blows to the complainant whereafter, raising slogans, the accused person left the scene of occurrence. It is alleged that father and the uncle of complainant succumbed to injuries while on the way to hospital. Complainant also alleged in the F.I.R. That offence took place at the instigation of Mst. Hakim Zadi.
2. ' It may be pertinent to note that the complainant is represented by Mr. Abdul Rehman, Advocate of Larkana to whom notices have been issued repeatedly. He failed to appear on the last date of hearing, so also, today, he is not in attendance. We have therefore, decided to hear learned counsel for the applicant and A.A.-G.
3. ' Contentions of learned counsel for the applicant are that the applicant was arrested on 13-5-1998 and till today, he is inside the jail without any delay attributable to him. He submits that applicant who was involved in as many as five cases including the present one, has been acquitted in three cases and released in fourth case under section 13(D) of the Arms Ordinance. Learned counsel adds that the applicants is neither a desperate nor hardened criminal, is not a previous convict so also he is not involved in act of terrorism. He contends that the applicant, having remained in jail for more than two years has earned a right to the concession of bail on the completion of statutory delay in conclusion of his trial. He stated that though provisos 3 and 4 to subsection (1) of section 497 have been deleted from the statute book by Amending Ordinance No, LIV of 2001, the applicant is entitled to the concession of bail as he earned the right before the deletion of said provisos. Also that, while application for grant of bail filed by the applicant on 8-7-2000 was pending, the Amending Ordinance was promulgated. He has placed reliance on case- law reported as Asif Ali Zardari v. The State (1993 PCr.LJ 781) and Hakim Ali Zardari v. The State (PLD 1998 SC 1).
4. ' Learned A.A.-G not disputing the factual aspect of the cases of applicant has expressed that he has no objection to the grant of bail. He has stated that applicant has earned a right of bail on the ground of statutory delay in conclusion of trial and notwithstanding deletion of provisos 3 and 4 to section 497 this Court has jurisdiction to grant bail.
5. ' We have given our anxious consideration to the arguments of both the learned counsel and with their assistance, we have examined the material including the case diaries of the Sessions Case.
6. We have also examined the case-law referred to by learned counsel for the applicant. The first judgment referred to by learned counsel for applicant is of Asif Ali Zardari (supra).
7. ' In the above cited case, accused Asif Ali Zardari and one Ali Bux Abbasi were indicated before the learned Special Court Nos.I and II for Suppression of Terrorist Activities Karachi for allegedly committing offences under sections 13 (F) and 16(B) of Pakistan Arms Ordinance 1965 and section 365-A, 395 and 109, P.P.C. Read with section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 respectively. Asif Ali Zardari remained under detention during the course of trial for a continuous period of time extending over one year and moved a bail application invoking 3rd proviso to section 497, Cr.P.C. When his application was pending Ordinance No,XV of 1992 was promulgated which is reproduced below:-- "(1) Short title and commencement.---(1) This Ordinance may be called the Code of Criminal Procedure (Second Amendment) Ordinance, 1992.
2. It shall come into force at once.
(2) Amendment of section 497, Act V of 1898.---In the Code of Criminal Procedure, 1898 (Act V of 1898), in section 497, in subsection (1),--
(i) in the second proviso, for the colon at the end of full-stop shall be substituted; and
(ii) the third and fourth provisos shall be omitted."
8. ' As a consequence of promulgation of above Ordinance, it is clear that provisos 3 and 4 were omitted from section 497, Cr.P.C. In this situation, inter alia, a question was raised whether said Ordinance operated retrospectively. Full Bench of this Court examined the said question. Mamoon Kazi, J., (as then he was) writing the judgment observed as follows:-- "Before introduction of the third proviso in section 497, Cr.P.C., bail could be granted to the accused on the ground of delay in the conclusion of the trial, but in absence of any statutory provision in this regard, it was purely left to the discretion of the Court to grant bail under such circumstances. The effect of introduction of the said proviso clearly has been to take away such discretion and give right to the accused to apply for bail on the ground of 'delay, as was pointed out by the Supreme Court in the case of Nazir Ahmed v. Ziaul Haq, reference to which has earlier been made in this order. Consequently, the right to apply for bail under the third proviso, although, accrues under a statute, but the same is a valuable right vesting in an accused person. No doubt, after introduction of said amendment in section 497, Cr.P.C. By Ordinance XV of 1992, the Legislature clearly intended to divest the accused of such right as was previously enjoyed by him under the said proviso, but in absence of any express words occurring in the amending Ordinance, it would be erroneous to assume that the legislature intended to apply the new change in the law retroactively so as to take away this valuable right even in cases where the same had already accrued to the accused. Even assuming that the right is not a vested right, nevertheless it is a valuable statutory right vesting in an accused, which in absence of any provision to the contrary cannot be taken away by the said amendment. As was observed in the case of Zahoor Elahi v. The State PLD 1977 Supreme Court 273 by Muhammad Yaqub Ali, C.J., under section 497 of the Criminal Procedure Code, bail is a right which could only be denied on the conditions contained in the special statute. Consequently, in our view, the applicants are entitled to bail under the third proviso to section 497(1), notwithstanding the amendment introduced through Ordinance XV of 1992.
22. There is another important aspect of this case which we must not fail to notice. As it has been pointed out earlier, when alteration in the law was made on 16-11-1992, both the bail applications were already pending before this Court. The right to apply for bail, as we have pointed out earlier, had already accrued to the applicants at the time when the said amendment was made in the law. We would like to point out that the rule of interpretation in respect of the retrospective operation of statutes applies differently in case of pending actions. Pending actions, by all cannons of interpretation, are to be governed by the law as was applicable at the time when the action had begun. Maxwell on the Interpretation of Statutes, 10th Editions, at page 221 observes:-- In general. When the law is altered during the pendency of an action, the right of parties are decided according to the law as it existed when the action was begun, unless the new status shows clear intention to vary such rights.'
9. ' This principle of interpretation was followed in the dissenting judgment by M.R. Khan, J, in Mian Rafiuddin v. The Chief Settlement and Rehabilitation Commissioner, reference to which has earlier been made in this judgment. No doubt, the freedom of the Legislature to express itself otherwise is not restricted or reduced, but as already pointed out, nothing can be spelt out from Ordinance XV of 1992 to indicate that the same was intended to apply retrospectively even to pending cases so as to take away the right of an accused to obtain bail by invoking the third proviso. Consequently, in no case it can be held that the new amendment has affected such right of the accused to seek bail under the third proviso."
10. ' While writing separate judgment, Haziqul Khairi, J. (as then he was) fully agreed with other learned members of Bench. Also, he observed as follows:-- "Reverting now to the Ordinance XV of 1992 in the first instance, there is no controversy that the Code of Criminal Procedure is a procedural law so also the Ordinance XV of 1992 which seeks to amend the former, As to whether it is retrospective or not, office to state that the expression that 'It shall come into force at once' and that 'the third and fourth provisos shall be omitted' leave no doubt that it operates prospectively. The golden rule of interpretation is that the words of the statute must be given their ordinary and normal meaning. These words speak for themselves and are free from ambiguity and simply because the Ordinance XV of 1992 relates to procedural law, it cannot be said that it would be retrospective in operation. There is nothing to suggest either expressly or by necessary implication that the date of commencement of the Ordinance was earlier than its enactment or the accused's right to apply for bail under third proviso stood altered retrospectively."
11. ' And further observed "The principle as laid down in Nazir Hussain's case (PLD 1983 SC 72) is that once conditions under section 497(1) with its provisos have been fulfilled, it would not be a matter of discretion with the Court but a matter of right for the accused to get bail. This right would be in the nature of the substantive or vested right which would accrue to an accused, when upon his continued detention exceeding one year or two years as the case may be, pending his trial, he becomes entitled to apply for bail. The right to apply for bail as well as the right to get bail as aforesaid cannot be taken away retrospectively unless there is a clear intention found in the amending statute itself."
12. ' Having adverted to the case-law referred to above we have gone through the provisions of Ordinance No, LIV of 2001 copy whereof has been supplied to us by learned. A.A.-G. Sections 1 and 2 of the said Ordinance are reproduced as follows:-- "1. Short title and commencement. ---(1) This Ordinance may be called the Code of Criminal Procedure (Amendment) Ordinance, 2001.
(2) It shall come into force at once.
2. Amendment of section 497, Act V of 1898.---In the Code of Criminal Procedure 1898 (Act V of 1898) hereinafter referred to as the said Code, in section 497 in subsection (1).
(a) in the second proviso for the colon at the end a full stop shall be substituted; and
(b) third and fourth provisos shall be omitted."
13. ' From the above, it is abundantly clear that the Ordinance has not been given retrospective effect.
14. In the circumstances, we are clearly of the view that the case of Asif Ali Zardari (supra) is applicable to the case of applicant in this bail application. He, having acquired a right under proviso third to subsection (1) of section 497, Cr.P.C. As it existed prior to amendment by Amending Ordinance LIV of 2001, is entitled to the grant of bail, subject, however, if he does not suffer the disability, as is mentioned in fourth proviso to the said subsection; also omitted by the Ordinance (ibid).
15. ' Coming to the merits of the case, it may be stated that learned Trial Court has dismissed the bail application of the applicant on the ground that he appears to be habitual offender and hardened criminal as he was found to be involved in as many as five cases. The other ground which found favour with Trial Court is that the applicant has delayed the proceedings because he has not engaged any Advocate though specifically directed to do so. It may be noted that bail dismissing order, dated 23-6-2000 reveals that the applicant is involved in Crimes Nos.14 of 1992, 61 of 1994, 41 of 1996, 24 of 1998 (instant case) and 31 of 1998 (off shoot of the instant case). Learned counsel for the applicant has placed on record certified true copies of case diaries/orders/judgments which indicate that he has been acquitted in Crime Nos.14 of 1992, 61 of 1994 and 31 of 1998 whereas in Crime No,41 of 1996 he has been granted bail by learned Additional Sessions Judge Shikarpur on 5- 11-1997. Certified copy of report dated 8-5-2000 furnished by Superintendent, Central Prison, Sukkur shows that the conduct of applicant is good and satisfactory during his confinement in the prison so also certified copy of report of S.H.O. Police Station Gharhi Yaseen reveals that the applicant is not a previous convict and he is not a dangerous criminal. The reasons that the accused failed to engage an Advocate is not tenable for dismissal of his bail application as learned Trial Court could appoint an Advocate or. His behalf after treating him pauper and could have proceeded with trial.
16. Be that as it may learned counsel for the applicant has invited our attention to the case diaries 24- 11-1998 to contend that the applicant had engaged an Advocate who filed his power in the Court on his behalf. The said diary supports the contention of learned counsel for the applicant. Learned A.A.-G., has also stated that delay is not attributable to the applicant. Co-accused Noor Ahmed to whom motive is attributed and against whom it is alleged that he opened fires from Kalashnikov on the two deceased and caused injury to complainant; also instigated the commission of the offence, has already been released on bail on statutory ground. The case of applicant is less serious than co-accused Noor Ahmed. Therefore, he is entitled to we grant of bail on the principle of consistency, as well.
17. ' In view of whatever is discussed above, we feel ourselves inclined to grant bail to applicant.
18. Accordingly we admit him to the bail. He shall be released on furnishing solvent surety in the sum of Rs, 200,000 (Rupees two lacs only) and P.R. Bond in the like amount to the satisfaction of the Trial Court.