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Petitioner: SHEKIL VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Nazim Hussain Siddiqui, Amanullah Abbasi, Ghous Muhammad Title: SHEKIL vs THE STATE Case No.: Criminal Bail Application No,1073 of 1995 Date of Judgment:1995-12-12 Reported As: PLD 1997 Karachi 172 Result: Bail granted
Judgment ORDER ' AMANULLAH ABBASI, J.---The F.I.R., in this case was registered on 30-8-1994 for offences under section 13-D, Arms Ordinance. The complainant S.H.O., S.I.P., Safdar Sultan of P.S. Orangi Extension Karathi stated that on that day he had left P.S. In search of accused of Crime No,186/94 for an offence under section 353/332/34 P.P.C., read with section 324, Qisas and Diyat Ordinance, alongwith SIP Ghulam Muhammad, ASI Najmuddin, SIP Mukhtar Ahmed and other officials in official mobile. On receipt of spy information he proceeded to house No,K-231 Millat Colony, Sector 11, Orangi Town, Karachi. They reached there at about 9-00 hours where he saw four persons standing behind a wall who started running on seeing police party. The police surrounded them and on interrogation they disclosed their names as 1. Shakeel son of Muhammad Ismail, who had SMG Rifle bearing No,18247744 Code No,47944 with loaded magazine having four live cartridges, 2. Haneef son of Abdul Hameed produced one .32-Pistol from fold of his Shalwar with four live cartridges, 3. Zaffar Ahmed son of Babu Chand who had a Pistol of 38-bore and 4. Muhammad Arshad son of Ghulam Muhammad, who produced (inreadable). ' After usual investigation the accused were challaned in the Special Court I, S.T.A., Karachi. The present applicant submitted bail application there which was rejected by the Judge of said Court on 31-8-1995. ' The learned Advocate for the applicant has requested for bail on the ground that the applicant has remained in custody since 30-8-1994 and the offence is not punishable even up to 10 years. The delay in the prosecution of case cannot be attributed to applicant. The applicant was involved due to enmity with S.H.O. Who is complainant. He relied on decisions reported in (1) 1992 SCMR page 2192, (2) 1987 PCr.LJ page 737 and (3) 1993 PCr.LJ pages 7.81 and 802.
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' Mr. Sarwar Khan, A.A.-G., submitted that section 5 of the Criminal Procedure Code lays down that all offences shall be investigated, enquired into and tried in accordance with provisions of Criminal Procedure Code. The same section in Part II clarifies that this will be subject to any enactment for the time being in force regulating the trial under Special Law. The ordinary criminals are tried for offences under Penal Code whereas for trial of serious offences the Suppression of Terrorist Activities (Special Courts) Act, 1975 was promulgated. The Preamble of the said Act makes it clear that this Act was promulgated to suppress acts of sabotage, subversion and terrorism whereas Cr.P.C., had different purpose. He referred to decision reported in 1995 SCMR page 1249 wherein their Lordships have been pleased to hold that in cases of conflict between the provisions of the Ordinance and the provision of Code, the Ordinance will prevail. He submitted that it is rule of interpretation that the provision of Special Law is to prevail. Therefore, the bail application is to be decided in accordance with section 5-A(8) of S.T.A. Act, 1975. He further submitted that section 10 of this Act further clarifies that the provision of this Act shall have effect notwithstanding anything contained in the Code. He further submitted that there have been decisions on this point but the latest decision mentioned by him clarifies that the provision of Special Law is to prevail, therefore, the bail as requested cannot be granted unless the condition mentioned in section 5-A(8) is satisfied. He further submitted that there is statutory presumption in section 8 of the S.T.A. Act that it shall be presumed that the accused has committed the offence unless he can prove that he had not in fact committed the offence. So according to him section 5-A(8) read with section 8 makes out a prima facie case against the applicant/accused and.The provision of section 497 Cr.P.C., cannot be imported to make the general law applicable to special law. ' The points that have been raised by learned State Counsel have been subject-matter of decisions of superior Courts. The learned Advocate for applicant has maw. On decision reported in 1992 SCMR page 2192. This is famous case of State v. Syed Qaim All Shah, wherein the point agitated on behalf of the State has been resolved. The relevant portion in paragraph 19 of the said judgment is as under:--- "19. The review of the above cases 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 seems to be in line with the reasoning of Salahuddin Ahmed, J., in the case of Choudhry Zahoor Illahi (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 in consonance with the well-settled principles of interpretation of statute." ' His Lordships Mr. Justice Rustam S. Sidhwa, J., in paragraph 8 of judgment has ruled as under: "8. The same position prevails in respect of bails sought in respect of cases under the Act. Sections 5-A(8) and 7 of the Act being almost parallal with sections 5(6) and 10 of the Ordinance, the view taken in Allied Bank of Pakistan would prevail here as well. It is therefore, clear that section 5-A(8) of
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the Act does not completely oust the applicability of section 497 of the Code in respect of bails at the trial stage. 9. However, the question whether the provisions of the first and third provisos to subsection (1) of section 497 of the Code can be held to be available to the Special Courts or the High Court, requires re-appraisal. Basically the matter revolves round subsections (8) and (9) of section 5, subsection (1) of section 7 and section 10. The resolution of the matter depends upon a proper interpretation of these and other provisions of the Act and not on interpretation alieunde to be drawn from other enactments which are not in pari materia. Having given deep thought to the matter, I have come to the conclusion that the view I took in the Allied Bank's case requires review for reasons which I propose to set out below." ' His Lordship has further been pleased to rule as under: "Thus subsection (8) of section 5-A would not displace the provisos appearing in subsection (1) of section 497 of the Code. The provisos are intended to relax severity of the rule stated in subsection (1) of section. 497 of the Code and are based on grounds of humanness, compassion and social justice, to prevent the abuse of the process of the Court and to prevent undue operation working against the sick, the infirm, the weaker sex and those immature in age. The conflict between the two provisions cannot be resolved by eliminating the provisos. Penal provisions must be construed strictly to maintain the relief giving provisions, unless the strict intention to eliminate them is clear and unequivocal. In the event of somewhat conflicting or defective drafting, where such a clear intention cannot be spelled out, the benefit of the proviso cannot be allowed to be dropped." The benefit of provisos to section 497, Cr.P.C., are available to accused in cases tried by Special Courts S.T.A. The learned State Counsel has referred to decision reported in 1995 SCMR page 1249. The paragraphs 8 and 9 of this judgment are as under:- "8 A comparison with section 497, Cr.P.C. Will show that there is departure from the said provision. In this regard reference can be made to section 12 of the Ordinance which provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. Therefore, in cases of conflict between the provisions of the Ordinance and the provisions of the Code, the Ordinance will prevail .... (Emphasis supplied). "9 The criterion for grant of bail as laid down by the Ordinance is not the quantum of sentence provided by P.P.C. The bailable or non-bailable nature of an offence on the basis of punishment is a creation of Code of Criminal Procedure. This part of the provision of section 497 being in conflict with the provisions of the Ordinance, the bail can be granted only if section 5(6) of the Ordinance is satisfied." ' In Qaim Ali Shah's case their Lordships have been pleased to rule that 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. We feel that the provisions of section 5-A(8) of S.T.A. Act cannot be inferred as repealed by virtue of decision in Qaim Ali Shah's case. The provision of section 5-A(8) remains intact but the benefit of provisos to section 497, Cr.P.C., can be pressed into service during the pendency of trial before the Special Court, S.T.A. Therefore, the first step is to decide the bail application in accordance with requirement of section 5-A(8) and in addition the provisions of section 497 Cr.P.C., will have to be kept in consideration, but this has been clarified by their Lordships in decisions reported in 1995 SCMR page 1249. The relevant portion is on page 1262 in paragraph 10 which is as under:- "10. Section 5(6) though not a complete Code provides fetter on the power of the Special Court to grant bail but the principles enunciated in section 497, Cr.P.C., and judicial authorities interpreting these provisions which do not come in direct conflict with section 5(6) can be pressed in service for grant of bail. A comparative study of sections 5(6) and 497 will show that bail can be refused if there appear reasonable grounds for believing that accused has been guilty of the offence. This is
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one of the grounds in section 497 for grant of bail. Therefore, to that extent there does not seem to be any conflict in both the provisions." As their Lordships have decided the issue and in the light of abovementioned rule we come to the conclusion that section 5-A(8) of S.T.A., Act though not a complete Code provides fetter on the power of Special Court to grant bail but the principles enunciated in section 497, Cr.P.C., can be pressed in service for grant of bail. ' There is special difficulty in dealing with cases under sections 13-D and 13-E, Arms Ordinance because in these cases the provisions of section 5-A(8) is to be read with presumption under section 8 of S.T.A. Act. The quantum of sentence provided for offence under sections 13-D and 13-E is not a consideration under section 5-A(8). This part of provision of section 497 being in conflict with provision of section 5-A(8), the bail can only be granted under provision of section 5-A(8). The provision of special law has to prevail. ' The bail application on ground of statutory delay has been considered and he was found in possession of weapon and there is presumption under section 8 of the S.T.A. Act, 1975, that he shall be presumed to have committed the offence. Section 5-A(8) of S.T.A. Act says that accused person shall not be released on bail by Special Court or by any other Court if there appear reasonable grounds that he has been guilty of a scheduled offence. This being statutory limitation of Special Law, the bail application of the applicant is rejected. ' DR. GHOUS MUHAMMAD, J.---I have gone through very carefully the order proposed to be delivered by my learned brother Amanullah Abbasi, J., for whom I have great regard but with optimum respect I find myself unable to agree with his views and in consequence I hereby venture to write a dissenting note. 2. The facts of the case have been ably stated by my learned brother in his judgment in view whereof I do not feel it necessary to restate the same. After hearing both the sides at some length the essential issue that warrant consideration in the instant case may be conveniently detailed as follows:--- (i) Whether the quantum of sentence relatable to the provisions with which the person is charged is at all relevant to the grant or refusal of bail, where that person is charged under any of the scheduled offences under Suppression of Terrorist Activities (Special Courts) Act, 1975 hereafter referred to as the "S.T.A."? (ii) Whether the provisos to section 497 of the Criminal Procedure Code are available to the person seeking bail if charged under any of the scheduled offences of the S.T.A. 3. Before dilating upon the arguments advanced by both the sides I think it would also be pertinent to first lay down the relevant provisions of the S.T.A. Which are as follows:--- "S.5-A(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." ' S.7. Appeal from sentences imposed by Special Courts etc.--A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, and the Provincial Government may direct any person appointed' by it for the purpose to present an appeal to the High Court from an order of acquittal passed by a Special Court, but save as aforesaid and notwithstanding the provisions of the Code or of 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.
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(2) An appeal under subsection (1) shall preferred to the High Court within 30 days of the passing of the se tence (or order of acquittal, as the case may be). And shall be heard and decided by a Bench of not less than two Judges of the High Court (within three months) ' S.B. Burden of proof.---Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which lead to raise a reasonable suspicion that he has committed such offence he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence. ' S.10. Act to override other laws.--The provisions of this Act shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force." 4. The learned A.A.-G., has taken the stand that the S.T.A., is a special law carrying a special objective, being an act to provide for suppression of acts of sabotage, subversion and terrorism, in view whereof in case of any conflict with the general law, the provisions of the S.T.A., would prevail. He has essentially in this regard placed reliance on section 10 of the S.T.A. The learned A.A.-G., in furtherance to this plea has stated that the S.T.A., has made a provision for grant of bail in its section 5A(8) which contains exhaustive grounds on which the Court can admit a person to bail while on no other ground can the bail application be entertained. He has also contended that the said section 5-A(8) is worded in a prohibitory language in view whereof its requirements are to be strictly adhered to while it precludes from its operation any other extraneous consideration or ground not built therein. In support of his submissions the learned A.A.-G., has placed reliance upon a latest decision of a Full Bench of the Supreme Court comprising three members in Chaudhry Shujaat v. The State 1995 SCMR 1249. 5. I feel that issues in this case can be resolved by looking into the following three cases of the Supreme Court on the subject:--- (a) Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599 decided by a Full Bench of the Supreme Court comprising three Judges. (b) State v. Qaim Ali Shah, 1992 SCMR 2192 decided by a Full Bench of the Supreme Court comprising five Judges. (c) Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249 decided by a Full Bench of the Supreme Court comprising three Judges. 6. The Allied Bank case revolved around the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (hereafter referred to as "the 1984 Ordinance") (wherein provisions relating to, inter alia, bail are in para materia with like provisions in the S.T.A. In order to state the dicta of the Allied Bank case with precision I feel it pertinent to first narrate the relevant provisions of the 1984 Ordinance:--- "S.5(6).--An accused person shall not be released on bail by a Special Court or by any other Court if there appears reasonable ground for believing that he has been guilty of 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. ' S.9.--(1) Burden of proof.--In any trial under this Ordinance, the fact that the accused person, or any of his relatives or any other person on his behalf, is in possession for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved and on such proof the Special Court shall presume, unless the contrary is proved, that the accused person is guilty of a scheduled offence: and his conviction, therefore, shall not be invalid by reason only that it is based solely on such presumption. ' S.10(1). Appeals from sentences passed by Special Court, etc.--A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has
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been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever 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. ' S.12. Ordinance to override other laws.--The provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force." 6-A. In the Allied Bank case Rustam Sidhwa, J., while writing for the Court, came to the conclusion that complete ouster of section 497 of the Criminal Procedure Code could not be inferred from the language of section 5(6) of the 1984 Ordinance in relation to bails as he observed:--- "It is, therefore, clear that section 5(6) of the Ordinance does not completely oust the applicability of section 497 of the Code in respect of bails and though the rule of subsection (1) of section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same subsection have been introduced in subsection (6) of section 5 of the Ordinance, which is couched in negative language, no express or implied ouster of the remaining provisions of section 497 of the Code can be spelt out from subsection (6) of section 5 of the Ordinance." (See para. 18 of the said judgment). ' The learned Judge while stating his views on the proviso of section 497 of the Criminal Procedure Code and other provisions thereto came to the conclusion that the first and third provisos of the said section 497 were not available when considering a bail application under section 5(6) of the 1984 Ordinance. However, some room was left for invoking the provisions of section 561-A of the Criminal Procedure Code to grant bail under inherent powers on grounds of delay which were not attributable to the accused. It would be pertinent to reproduce the relevant observations where such principles have been stated:--- " The position of the third proviso to subsection (1) of section 497 of the Code is somewhat nebulous. Though its provisions provide it exception to the rule contained in subsection (1) of section 497, it is founded in public policy, namely, that an accused shall not be made to suffer for the long delay arising out of the commencement of his trial, unless the same has been occasioned by his own conduct, and assuming that the same is also not available, the possibility of its application through section 561-A of the Code to prevent an abuse of the process of the Court or otherwise to secure the ends of justice, cannot be totally excluded. In a fair case it may be availed by the High Court in exercise of its inherent powers." (See para 19 of the judgment). "Therefore, whilst the provisions of the first 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 (5) of section 497 of the Code, as they do not affect the rule stated in subsection (6) of section 5 of the Ordinance. These provisions would not stand excluded, whether expressly or by accessory intendment or implication." (See para. 19 of the judgment). 7. The Allied Bank case accordingly stood an authority for the following principles of law enunciated therein:--- (i) while considering bail under section 5(6) of the 1984 Ordinance, the provisos 1 and 3 of section 497(1) were not available to the Court; (ii) in the event as specified in (i) above, the operation of subsections (2) to (5) of section 497 of the Criminal Procedure Code did not stand precluded; (iii) in the event as stated in (i) above the High Court could invoke its inherent powers under section 561-A of the Criminal Procedure Code to grant bail on grounds of delay.
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8. Subsequently, a Full Bench of the Supreme Court comprising three Judges heard arguments in State v. Qaim Ali Shah and reserved the judgment on 17-5-1992. However, the learned Judges of that Bench came to the conclusion that the views expressed in the Allied Bank case required consideration in view whereof a large Bench comprising five Judges was constituted which decided the case of Qaim Ali Shah reported in 1992 SCMR 2192 (see para. 4). It is also interesting to note that Rustum S. Sidhwa, J. The learned author of the judgment in the Allied Bank case also sat in judgment in the Qaim Ali Shah case. Before adverting to the principles of law stated in the Qaim All Shah case it would also be pertinent to observe that the need for referring the matter to a larger Bench arose as the learned Judges found the provisions of the STA which were relevant in the Qaim Ali Shah's case to be in para materia with the provisions of the 1984 Ordinance which were the subject-matter of the dispute in the Allied Bank case. 9. In the Qaim Ali Shah's case Ajmal Mian, J., while writing the leading judgment, exhaustively dealt with the case-law on the subject and at the same time considering the dicta of the Allied Bank case. The learned Judge after an exhaustive analysis came to the conclusions which can be summarised as follows:--- (i) During the pendency of trial before the Special Court while dealing with a bail appeal/application the High Court can press into service section 497 of the Cr.P.C., alongwith provisos 1 and 3 see paras. 19 and 20 of the judgment of Ajmal Mian, J.; (ii) the Special Court while dealing with the question of bail under the STA can also press into service section 497 alongwith its provisos 1 and 3 (see para. 21 of the Judgment of Ajmal Mian, J.); (iii) once a person is convicted by the STA and its case is not pending therein while an appeal is filed by convict in the High Court, the…
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