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Petitioner: ASIF ALI ZARDARI VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Saeeduzzaman Siddiqui, Imam Ali G. Kazi Title: ASIF ALI ZARDARI vs THE STATE Case No.: Criminal Bail Applications Nos. 1180 and 1169 of 1990 Date of Judgment:1990-12-31 Reported As: 1991 P Cr. L J 595 Result: Applications rejected
Judgment ORDER SAEEDUZZAMAN SIDDIQUI, CJ.--- This order will govern the disposal of Criminal Bail Application No.1180 of 1990 and Criminal Bail Application No.1169 of 1990. The accused in the above-noted criminal bail applications are facing trial under section 365-A/395/120-B, P.P.C. Before the Special Court (Suppression of Terrorist Activities) at Karachi (hereinafter referred to as the Special Court) Bail Application No.1180 of 1990 is filed by Asif Ali Zardari son of Hakim Ali Zardari while Criminal Bail Application No.1169 of 1990 is jointly filed by Ghulam Hussain Khan son of Ghulam Umer Unar, Noor Nabi Abbasi son of Dur Muhammad and Najmul Hassan alias Babar Jamali son of G.H. Jamali. The bail,, applications of all the above-noted applicants except that of Ghulam Hussain Khan were rejected by the Special Court and accordingly they have applied for bail before this Court. In so far Ghulam Hussain Khan son of Ghulam Umer Unar, Applicant No.1 in Criminal Bail Application No.1169 of 1990, is concerned he has been granted conditional bail on medical ground by the Special Court and Mr. Ibrahim Memon, the learned counsel for Ghulam Hussain Khan stated before us that he does not press bail for Ghulam Hussain Khan on merits but only prays for modification of the conditions attached by the trial Court while granting bail to Ghulam Hussain Khan on medical ground. We have accordingly separated the case of Ghulam Hussain Khan from rest of the applicants, and it will be dealt with separately. Mr. Nizam Ahmed, the learned DA: G. And Mr. Aftab Akhund the learned Advocate-General, Sindh, jointly raised a preliminary objection as to the maintainability of above bail applications. It is jointly contended by them that the bail applications of the applicants having been rejected by the Special Court this Court has no jurisdiction either to revise that order or to entertain fresh bail application in view of the provisions of the Suppression of Terrorist Activities (Special Court) Act,
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1975 (hereinafter referred to as `the Act' for the sake of convenience). It is jointly urged, that the Act provides a complete procedure for the trial and regulation of proceedings before the Special Court and as such the general provisions contained in the Code of Criminal Procedure are not applicable to the proceedings arising under the above Act. It is very vehemently contended by the learned DA.-G. And A.-G., Sindh that the jurisdiction of the High Court to grant bail under section 498, Cr. P.C. Having been expressly taken away by the Act the High Court cannot grant bail to a person standing trial for a scheduled offence, under the Act. It is jointly contended that under Article 175 of the Constitution, the Court can exercise only such jurisdiction as may be conferred on it either by the Constitution or by or under any law. Referring to the provisions of the Act the learned DA.-G. And A.-G., Sindh contended that the Act provides a complete and exhaustive procedure regulating the trial before the Special Court and as such the general provisions contained in the Code of Criminal Procedure cannot be invoked. It is, accordingly, contended that there being no provision in the Act which provided entertainment of the bail application of an accused person by the High Court after it is rejected by the trial Court and the general power of the High Court in this regard contained in section 498, Cr. P.C. Having been expressly taken away by the Act, the High Court could not grant bail to the applicants. In support of their above contention the learned DA.-G. And the A.-G., Sindh relied on the two full Bench cases of Karachi and Peshawar High Courts respectively, reported as Abdul Khaliq v. State PLD 1990 Kar 448 and Muhammad Gul v The State 1985 P Cr. L J 205. Mr. Aitzaz Ahsan, the learned counsel for Asif Ali Zardari (applicant in Criminal Bail Application No. 1180 of 1990) on the other hand contended that this Court as well Lahore High Court have consistently held the view that the High Court has jurisdiction to grant bail to an accused person facing trial under the Act before the Special Court and in support of his contention the learned counsel referred to the cases of Muhammad Moosa v The State 1986 P Cr. L J 578; Abdul Majid v. The Judge, Special Court (Offences in Bank) 1985 P Cr.L J 890; Altaf Hussain v The State PLD 1985 Lah 10; Mst. Zeenat Ali v. The State 1985 P Cr. L J 2592; Aftab Ahmed Shah v The State 1989 P Cr. L J 112; Deputy Superintendent of Police, Larkana v. Mumtaz Ali Bhutto 1986 P Cr. L J 195 and Gul Muhammad v The State 1987 P Cr. L J 737. On merits Mr. Aitzaz Ahsan, the learned counsel for Asif Ali Zardari contended that in so far his client was concerned, firstly, his name is not mentioned in the F.I.R. Initially lodged by the complainant on 10-4-1990 and secondly, even if the improved version of the complainant as disclosed in his subsequent letter, dated 17-9-1990 addressed to Superintendent (C.I.A.) Government of Sindh, I.I. Chundrigar Road, Karachi, is accepted as correct, then also no offence is disclosed against his client. With regard to inclusion of section 120-B, P.P.C. m the challan Mr. Aitzaz Ahsan contended that the ingredients of conspiracy are totally missing against his client. Mr. Muhammad Ibrahim Memon, the learned counsel for Noor Nabi Abbasi and Najmul Hassan alias Baber Jamali adopted the arguments of Mr. Aitzaz Ahsan on the point of maintainability of the bail application. On merits Mr. Memon contended that in so far as his client Noor Nabi Abbasi is concerned the role assigned to him in the F.I.R. Is insignificant and as such he is entitled to bail. Regarding case of prosecution against Najmul Hassan alias Baber Jamali. Mr. Ibrahim Memon, contended that the perusal of allegations made by the complainant in the F.I.R. Will show that the dispute relates to a civil transaction between complainant and Ghulam Hussain Unar who were not only known to each other from before the incident, but were also related to each other, and as such on the basis of these allegations no criminal offence is made out against any of the accused persons named in the F.I.R. It is also contended by Mr. Ibrahim Memon that the allegation regarding receipt of money by Ghulam Hussain Umar is not at all disputed and as such it lends support to his contention that was a transaction of civil nature We have heard the learned counsel for the pacties at length.
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We will first deal with /the point of jurisdiction raised by the learned D.A.-G. And the learned A.-G., Sindh. The constitution of a Special Court authorised to try the scheduled offences under the Act is provided by section 3 of the Act and its jurisdiction is determined under section 4 ibid, which provides that notwithstanding anything contained in the Code of Criminal Procedure a scheduled offence shall be tribal exclusively by a Special Court. Section 4-A provides for transfer of cases from one Special Court to another Special Court by the Government and it further provides that upon transfer of the case the transferee Court shall not by reason of such transfer be bound to recall or rehear any witness, who had given any evidence in the case before transfer, and the evidence in the case already recorded before the Special Court where the case was pending before its transfer may be considered by the transferee Court. Under section 5 of the Act the officer in charge of a police station is required to complete the investigation of a scheduled offence and forward a report under section 173, Cr. P.C. Within 14 days to the Special Court having jurisdiction. However, the Special Court may extend this period for good reasons shown by the Investigating Agency. Subsection (2) of section 5 provides that any default on the part of officer in charge of police station, or an Investigating Officer or any other person required by law to perform such function in connection with the investigation which results or has the effect of delaying the investigation or submission of report under subsection (1), shall be deemed to be wilful disobedience of the order of Special Court and may be dealt with under the law accordingly. Subsection (3) of section 5 authorises a Special Court to directly take cognisance of a case tribal by it without the case being sent to it under section 190 of the Code. Section 5-A of the Act prescribes the procedure for trial before the Special Court. It provides that on taking cognisance of the case the Special Court shall proceed with the trial from day to day and shall decide the case speedily. A Special Court trying a case under the Act is prohibited from adjourning the trial for any purpose unless such adjournment in the opinion of the Court is necessary in the interest of justice but such adjournment is not to exceed more than 2 days. Subsections (4) to (7) of section 5-A of the Act prescribe the procedure for trial of the accused in absentia. Subsection (8) of section 5-A of the Act with which we are mainly concerned here, provides, that 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, and unless the prosecution has been given notice to show cause why he should not be released. Subsection (9) of section 5-A provides that a Special Court shall in all matters with respect to which no procedure has been prescribed by the Act, follow the procedure prescribed by the Code for trial of cases by Magistrate. From', the review of above provisions of the Act it, firstly, appears that the Special Courts have been established as an exclusive forum for trial of scheduled offences under the Act and as such the jurisdiction of all other Courts shall be deemed to have been excluded m respect of all those matters to which the jurisdiction of Special Court extends; and secondly, the application of the general provisions contained in the Code of Criminal Procedure regulating the trial of an accused person before the Special Court has been excluded to the extent that the provisions in that regard have been made in the Act. One more object, which clearly appears from the preamble and various provisions of the Act is, that the Special Courts have been established for the purposes of suppression of acts like sabotage, subversion and terrorism and making a special provision for speedy trial of such offences. These broad objectives of the Act have to be kept in view, both while interpreting the provisions of the Act as well as when holding that certain provisions of the Code, application whereof have not been specifically excluded by the Act, applied to the proceedings before the Special Courts. . We will now attempt to find out as to what extent the power, of High Court to grant bail under the Code has been taken away or effected by the Act. The first provision to be noticed in this regard is section 7 of the Act, which provides for an appeal from the sentence awarded by the Special Court
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to the High Court within whose jurisdiction the sentence has been passed. This section though provides for an appeal to High Court from the sentence awarded by the Special Court but prohibits exercise of power by the High Court under section 426. Cr. P.C. Which is a general power enjoyed by the Appellate Court under the Code to suspend the sentence appealed against before it. Similarly, the power of revision against the sentence awarded by the Special Court or to transfer a case from the Special Court which otherwise are the powers generally enjoyed by the High Court under the Code have been taken away in respect of a Special Court. Likewise the powers available to High Court under section 491, Cr. P.C. In its original criminal jurisdiction has also been taken away under the Act in respect of any proceedings of a Special Court. In the like manner the powers of the High Court under section 498, Cr. P.C. To grant bail has also been taken away by the Act. Mr. Aitzaz Ahsan, the learned counsel for Asif Ali Zardari contended before us that the Legislature by mentioning sections 426, 491 and 498, Cr. P.C. In section 7 of the Act intended to take away the powers of the High Court under these sections only in respect of 'appellate proceedings and, therefore, the powers of High Court under these sections in respect of proceedings other than appellate proceedings were not affected. We are unable to agree with the above contention of Mr. Aitzaz Ahsan. Section 7 of the Act reads as follows: "7. Appeals from sentences imposed by Special Court etc.----- (1) 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, 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 Special Court or to make any order under section 426 or section 491 or 911 on 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court (2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court, (within three months). (3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court." (underlining is by us) No doubt the head note of section 7 ibid reads as `Appeal sentences imposed by Special Court' but a careful reading of the section will show that the section besides mentioning the appeal proceedings also refers to the powers of Court to revise sentence, transfer of cases pending before Special Court and the supervisory/provisional general jurisdiction of all kinds in respect of any proceedings of a Special Court. In our view, therefore, the mention of sections 491 and 498, Cr. P.C. In section 7 of the Act is deliberate and it cannot construed as having reference to the appeal proceedings only, Even otherwise provision of sections 491 and 498, Cr. P.C. Cannot have any reference to the appeal proceedings as after conviction of an accused person his production cannot be ordered by High Court under section 491, Cr. P.C. To examine his detention in jail under any of sub-clauses mentioned therein. Similarly, a person convicted of an offence cannot be enlarged on bail by the High Court under section 498, Cr. P.C. We are therefore, of the view that by mentioning sections 426, 491 and 498, Cr. P.C. In section 7 of the Act, the Legislature intended to take away all powers of a High Court under these provisions of Cr. P.C. In respect of proceedings of a Special Court. Our above conclusions find full support from the following observations of the Full Bench in the case of Abdul Khaliq v. The State PLD 1990 Kar 448: "Coming back to section 7 of the Terrorist Act, I would like to say that, if contention raised at the Bar is accepted that section 7 is divided into two parts by words `but save as aforesaid', then also it appears very clearly that the intention expressed is that in the first part power is given to the High
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Court to hear appeal and in the second part `no Court' shall include High Court, which is restrained from revising any such sentence. Transferring any case from Special Court and making any order under sections 426, 491 and 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings. Of a Special Court. If contention is accepted that section 7 is not to be divided into two parts but can be read as a whole, then also it appears that intention of Legislature is explicitly clear that power is given to High Court to hear appeal without power of granting bail under section 426, Cr. P.C. During tendency of appeal plus other restrictions specified therein. Legislature has made its intent very clear by describing the restrictions either by Acts or by reference to sections of the Code. In both the methods intent is clear as to what is to be excluded. In the Act are mentioned `to revise such sentence' which is provisional jurisdiction and transfer of cases from Special Court. Apart from that, three sections are categorically mentioned as sections 426, 491 and 498 of Cr. P.C, which are powers respectively of grant of bail during tendency of appeal, directions byway of habeas corpus and power of grant of bail at any stage whether there be an appeal on conviction or not including power of pre-arrest bail. There is no jurisdiction for contending that words `no Court' in second part do not include High Court hearing appeal in the first part because this fact is to be admitted that Legislature has given expressly only power of hearing appeal to the High Court without power of granting bail during tendency of appeal because the intention and the purpose is that appeal is to be disposed of within three months' time speedily. Likewise, provisional jurisdiction has also been taken away because `no Court' including High Court is restrained from revising such sentence. Restrictions are in the shape of revision, transfer or passing any orders under sections 426, 491 and 498 of the Code. If Legislature has not said in very specific terms that provisional jurisdiction is barred or jurisdiction of the High Court under sections 435 and 439 of the Code is excluded as has been done in respect of sections 426, 491 and 498 of the Code then it can be said that provisional jurisdiction is barred impliedly because revising of sentence is mentioned as such which can be done in no other manner except in provisional jurisdiction." (Underlining is by us). The next question, which arises for determination in these cases is whether the High Court in spite of taking away of its powers, under section 498, Cr. P.C. Is still competent to grant bail to an accused person in a case pending before a Special Court. Mr. Nizam Ahmed, the learned DA. -G. Contended that in view of the taking away of the powers of this Court under section 498, Cr. P.C. To grant bail and the absence of any provision in the Act authorising the High Court to admit a person to bail, who is facing trial before a Special Court, this Court can neither entertain the bail application nor admit such person to bail. The learned DA.-G. In support of his contention relied on the above-quoted passage and specifically the underlined portion of the passage from Abdul Khaliq's case. The learned DA.-G. Also referred to the case of Muhammad Ibrahim v. The State PLD 1990 Kar 290, in which a Division Bench of this Court took the view that the Special Court not being subordinate to High Court the latter cannot exercise its jurisdiction under section 439 or 561-A, Cr. P.C. Or Article 203 of the Constitution in respect of orders passed by the Special Court. The learned A.-G., Sindh while supporting the above contention of learned DA.-G. Further submitted that the grant of bail by any other Court including the High Court under section 5-A(8) of the Act is possible only at a stage when the Special Court has not yet taken the cognisance of the case, where after it is the Special Court alone which could grant bail to the accused. The learned A.-G.. Sindh, relied on the following passage from the Full Bench decision of Peshawar High Court in the case of Muhammad Gul. v. The State 1985 P Cr. L J 205 in support of his contention:--- "It is obvious that when a case is registered by the police and someone charged for a scheduled offence, is apprehended then from whom his remand would be taken? When the accused is produced before a Magistrate and he is required to be remanded to police custody or to be sent to judicial lock-up that very magistrate will be required to exercise the powers conferred on him
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under the law. Here the question would arise under what provision of law, he will remand the accused to police custody or send him to judicial lock-up because by then the Special Court would have not taken cognisance of the case, as under the law the main responsibility of the Special Court is to try a man accused of a scheduled offence. When will he try that accused person and what will happen to the accused before the trial commences and after he is arrested after the registration of a case. This is a stage for which besides a Special Judge some other Courts have also be authorised to exercise jurisdiction and perform certain duties as otherwise investigation may take sufficiently long time and an accused person shall not be released on bail by any other Court while the Special Court will assume jurisdiction only when the challan is submitted for trial before him." Mr. Aitzaz Ahsan, the learned counsel for Asif Ali Zardari on the other hand contended that in spite of taking away of the power of High Court under section 498, Cr. P.C. The High Court can admit a person accused of a scheduled offence and facing trial before a Special Court under section 497, Cr. P.C. The contention of Mr. Aitzaz Ahsan appears to be correct. The scope of power of High Court to grant bail to an accused person under sections 497 and 498, Cr.P.C. Came up for consideration in the case of Muhammad Ayub v. Muhammad Yaqub PLD 1966 SC 1013 and following observations from the judgment of SA. Rehman's, J. (as he then was) which expressed the majority view of the Court in the case, may be quoted here with respect: "A consideration of the context in which it occurs would show that section 498 should apply only to accused persons and not to those convicted of an offence. As was pointed out by the Privy Council, section 426 of the Code grants power of bail to the appellate Court, in respect of convicted persons. Subsection (2) of that section expressly enacts that such a power may be exercised by the High Court, in the case of an appeal by a convicted person to a Court subordinate thereto. That section confers no such powers on a Court of Session. The very fact that express conferment of this power in the case of the High Court is mentioned, excludes the existence of a similar power in the case of a Sessions Court. If section 498 is so construed as to include within its scope convicted persons then its, provision would come into conflict with section 496, so far as the Court of Session is concerned. Indeed, on such a view, the Court of Session would, under section 498, have power to grant bail to a convicted person, appealing to the High Court. Such a construction, if possible should be avoided. I am, therefore, inclined to the opinion that section 498, should be interpreted with reference to the context in which it occurs and should be held confined to the case of an accused person only. It is to be noticed that this section starts by saying that the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. The 'bond' mentioned herein is obviously one to be executed by an accused person. The context, therefore, shows that the power of bail too under this section should be held limited to the case of accused persons. The cases of convicts are sufficiently provided for by sections 426 and 435 of the Code, and there was no necessity for repeating provisions regarding bail to them in section 428 of the Code. This is one limitation, which the Privy Council thought should be spelt out from section 498, when seen in the light of the other provisions in the Code. The second, and the more important, limitation seems to be that which confines the scope of section 498 in non-bail-able cases to the category of persons, visualized by section 497, and I proceed to examine that point. This question, it is true, was not before their Lordships of the Privy Council, directly. It is maintained, on behalf of the respondent, that the word `appears' occurring in sections 496 and 497 of the Code, should apply only to a person, appearing in response to a process, issued by a Court and should not be held to include voluntary appearance by a person, seeking bail. In Sadiq Ali's case, keeping the dictum of the Privy Council in view, I had expressed the opinion that the word `appears' need not be so confined. It is, however, pointed out by learned counsel for the respondent that with the
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adoption of this connotation of the word `appears' in the general dictionary sense, the result would be that section 498 itself would seem to become redundant. No statutory definition of…
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