Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: GUL ZAMAN VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Raja Afrasiab Khan, Sh. Riaz Ahmad, Sh. Ijaz Nisar Title: GUL ZAMAN vs THE STATE Case No.: Criminal Petition No,391-L of 1998 Criminal Miscellaneous No,967-B of 1998 Date of Judgment:1998-12-18 Reported As: 1999 SCMR 1271 Result: Petition allowed
Judgment ORDER ' SH. IJAZ NISAR, J.---The facts giving rise to this petition, that on 11-3-1996 Messrs Champ Sports, Sialkot, exported 50 cartons of medicinal balls to Messrs Sears, Canada, from Lahore through Airway Bill No,020-3248-4712 by Lufthansa Cargo. The said consignment was checked at Sharja Airport and 400 K.Gs. Of Hashish was found concealed in the medicinal ball. On receipt of the said information a raiding party was constituted which visited the office of Hasnain Cargo, Sialkot, through which the consignment in question had been booked and arrested one Asif Javed, who on interrogation disclosed that the consignment was owned by Gul Zaman, petitioner herein who had booked it through him. On the basis of the said information, the present case was registered on 27- 5-1997 and Gul Zaman petitioner was arrested on the same day. Naseem Amin Butt, the owner of Champ Sports. Was also arrested. It is alleged that Asif Javed, Naseem Amin Butt, Mahmood Hassan Harvi and Gul Zaman petitioner were members of a gang engaged in the smuggling of Narcotic. They were, thus, booked in this case. 2. During investigation Sajjad Parvez, an employee of Cargo Care, stated that a cheque of Rs,1,00,000 issued by Messrs Ehsan Sports, of which Gul Zaman petitioner was one of the Directors, had been given to him on 31-3-1996 towards the payment of freight charges. 3. Gul Zaman petitioner applied for bail to the Special Court but his application was dismissed on 23-12-1997. He then applied to the High Court and remaining unsuccessful has petitioned to this Court. 4. It is contended that the petitioner has been falsely involved without any material to link him with the alleged crime, that he is behind the bars since 27-5-1997 without any trial and even the complete challan has not yet been submitted. It is further stated that he remained on physical
---
## Page 2
remand with the Investigating Agency for a couple of days but nothing incriminating could be recovered from his possession. He has been merely involved on the uncorroborated statement of Asif Javed co-accused made by him before the raiding party which in no terms can be termed as a judicial confession within the meanings of Article 43 of the Qanun-e-Shahadat Order, 1984. The petitioner had absolutely no connection with Champ Sports, Sialkot which had booked the consignment in question and its proprietor Naseem Amin Butt in the bail application filed by him is said to have admitted the receipt of sale proceeds through bank in respect of the consignment in question. 5. Learned Deputy Attorney-General has vehemently opposed the bail application submitting that the petitioner's involvement in the crime stands established by the delivery of cheque, dated 31-3- 1996, in the sum of Rs,1,00,000 by Ehsan Sports, which was got encashed by Sajjad Parvez an employee of Cargo Care. He further maintains that since the offence with which the petitioner stands charged is punishable under section 9(c) of the Control of Narcotic Substances Act XXV of 1997, section 51 bars the grant of bail to him. In reply, learned counsel for the petitioner submits that the petitioner is not liable to any punishment under the Control of Narcotic Substances Act, 1997, promulgated in March, 1997, because the offence in question was allegedly committed on 11-3- 1996, when the Control of Narcotic Substances Ordinance XIII of 1996 was holding the field which did not bar the grant of bail to an accused person involved in the offence. Section 44 of said Ordinance provided that the provisions of the Code of Criminal Procedure, 1898 shall apply, mutatis mutandis, in respect of cases tried under the said Ordinance. As regards the issuance of cheque by Messrs Ehsan Sports to Messrs Cargo Care, he stated that Messrs Ehsan Sports is a reputed firm which exports sports goods in large quantity and that the cheque, date 31-3-1996 issued to Messrs Cargo Care could not be linked with the consignment allegedly booked on 11-3-1996 by Messrs Champ Sports through Hasnain Cargo and further that the petitioner had no connection whosesoever with that firm. 6. The answer to the question as to whether the petitioner would be triable under the Control of Narcotic Substances Act, 1997, or under the Control of Narcotic Ordinance, 1996, can be found in the case decided by this Court titled Muhammad Ashraf v. The State (PLD 1986 SC 42) wherein it was observed that the relevant date for this purpose would be the date of the commission of the offence. Furthermore, subsection (c) of section 78 of the Control of Narcotic Substances Act, 1997, saves proceedings under the repealed law by providing that the promulgation of the ibid Act would not affect any investigation, legal proceedings or remedy and the same may be instituted, continued or enforced or any penalty, forfeiture or punishment may be imposed, by the Courts or Authorities competent to investigate, or try an offence under such law as if the said law had not been repealed. (See PLD Unreported Statutes, 1997 p.527), Kh. Fakharuddin v. Hasinuddin Qureshi and 3 others (PLD 1980 Lah. 778) may usefully be cited wherein it was held that rights of parties are to be decided according to law existing at the time of commencement of action, which in the present case would be 11th March, 1996, when the consignment in question was booked. 7. The Control of Narcotic Substances Ordinance, 1996, under which the petitioner is to be tried, in view of the legal position discussed above, does not bar the grant of bail to an accused person, or the applicability of Criminal Procedure Code as provided by section 51 of the Control of Narcotic Substances Act, 1997. Bails were not uncommon in the cases registered under the Narcotic laws. For example in the case titled Mst. Fahmida v. The State (1997 SCMR 947) bail was granted by this Court in a case under Narcotic Substances Ordinance for violation of the provisions of section 103, Cr.P.C. Even if it is assumed for the sake of arguments that the petitioner is to be tried under the existing law i.e, Control of Narcotic Substances Act, 1997, still he can be admitted to bail notwithstanding the bar contained in section 51 of Act XXV of 1997. Section 51 reads as under:--
---
## Page 3
"51. No bail to be granted in respect of certain offences:-- (1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. (2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount." ' The above section bars the grant of bail to an accused person under sections 496 and 497, Cr.P.C. Only and that too when he is charged with an offence punishable with death. It is silent about the powers of Courts under section 498, Cr.P.C. Which is an independent section. It is pertinent to note that in section 51 of Act XXV of 1997 only sections 496 and 497, Cr.P.C. Are mentioned without any specific mention of section 498, Cr.P.C. Indicating that what was intended to have been excluded had been expressly excluded. If the Legislature had intended to exclude section 498, Cr.P.C. Also there is no reason why it should not have mentioned the same in section 51 of the Act. It otherwise looks anomalous that a Court may grant pre-arrest bail to a person accused of an offence punishable with death in exercise of powers under section 498, Cr.P.C. But the same Court would be incompetent to grant bail if approached by a person for bail after arrest on the same allegations. ' Guidance can be had from Altaf Hussain v. State (PLD 1985 Lah. 10) wherein it was held by a Division Bench of the Lahore High Court, that the High Court's power under section 498, Cr.P.C. Remained unaffected and had not been excluded by Ordinance IX of 1984 (Offences in Respect of Banks (Special Courts) Ordinance, 1984. A fine distinction was brought out by the Court by holding that the High Court's power under section 498, Cr.P.C. At the trial stage had not been excluded by section 10 of the said Ordinance. In this context the principles of interpretation of Statutes as highlighted by this Court in State v. Qaim Ali Shah (1992 SCMR 2192 at p.2217) may be referred to which are to the following effect:-- (i) That a statute which transgresses' n the rights of a subject whether as regards his person or property should be so construed, if possible, which may preserve such rights; (ii) that if two views of a provision of a penal statute are possible, one which favours an accused person be preferred over the other; (iii) that the jurisdiction of the superior Courts cannot be abolished or ousted unless this is done by express, clear and unambiguous words or clear intendment." 8. It is a cardinal principle of criminal justice that an accused person is presumed to be innocent till the time his guilt is proved beyond reasonable doubt by the prosecution and, therefore, an accused person during the trial stands on different footing that an accused person against whom a competent Court has returned the verdict of guilt, as in the latter case the presumption of innocence would disappear. It was observed in Qaim Ali Shah's case (supra) at p. 2221) that:-- "We should not be oblivious of the fact that ours. Constitution guarantees fundamental rights and Article 2A 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." ' In the aforementioned case the provisions of section 561-A, Cr.P.C. Were also held to be available in appropriate cases, despite the bar contained in section 7 of the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) in the exercise of powers under section 426, Cr.P.C. ' As to the applicability of the provisions of Code of Criminal Procedure a reference may be made to section 47 of Act XXV of 1997, which provides that:--
---
## Page 4
"47 Application of the Code of Criminal Procedure, 1898. ---Except as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence), shall apply, to trials and appeals before a Special Court under this Act." If the above provisions are read conjunctively with section 51 of the Control of Narcotic Substances Act XXV of 1997, it is clear that applicability of sections 496, 497 and 498, Cr.P.C. Is not totally barred in respect of the cases under the ibid Act, but the only prohibition is on the grant of bail to a person accused of an offence punishable with death while in other cases under the said Act bail may be allowed in suitable cases. It would be worthwhile to point out that under this law there is no prohibition on the suspension of sentence of a convict during the pendency of his appeal. If this is so, how can the intention of law, be, to deny the concession of bail to an under trial prisoner merely on the basis of accusation in the F.I.R. 9. In order to see the law and practice of the grant of bail or otherwise to an under trial accused person or a convict in the offences under the Special Laws, a reference may be made to the case- law on Ordinance IX of 1984. Offences in Respect of Banks (Special Courts) Ordinance, and Act XV of 1975, Suppression of Terrorist Activities (Special Courts) Act, 1975. A detailed review of the case- law was made by this Court in the case titled The State v. Qaim Ali Shah (supra) (at page 2192) wherein the respondent who alongwith others was facing trial under the Suppression of Terrorist Activities (Special Courts) Act, 1975, had been allowed bail by a Division Bench of the High Court of Sindh, during the pendency of the trial, in a case under section 302/307/120-B/34, P.P.C. For causing the death of 26 persons and injuries to a number of persons and the State had moved an application for the cancellation of his bail. The relevant paragraphs of the judgment authored by Ajmal Mian, J., the present Chief Justice of Pakistan are reproduced below:-- "19. The review of the above case-law 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 seeks to be in line with the reasoning of Salahuddin Ahmed, J. In the case of Ch. Zahur Ilahi (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 also in accordance with the well-settled principles of interpretation of statutes, namely--- (i) that a statute which transgresses on the rights of a subject whether as regards his person or property should be so construed, if possible, which may process such rights; (ii) that if two views of a provision of a penal statute are possible, one which favours an accused person be preferred over the other; (iii) that the jurisdiction of the superior Courts cannot be abolished or ousted unless this is done by express, clear and unambiguous words or clear intendment. 20 I may also mention that in section 7 of the Act, the High Court, which is a Court of record, has been named as an Appellate Court and therefore, the well-settled principle of jurisprudence that when an established Court without more is provided as a forum for a particular redress, it will be
---
## Page 5
implied that the ordinary incidents of the procedure of that Court are to attach to it is has been held inter alia in the case of National Telephone Company Limited (In Liquidation) and another v. His Majesty's Postmaster General, 1913 AC 546, the case of Secretary of State of India v. Chellkani Rama Rao and others AIR 1916 PC 21, the case of Maung Ba Thaw v. Ma Pin 1961 IA 158, the case of Hussain Bukhsh v. Settlement Commissioner and others PLD 1970 SC 1, and the case of In re: Suo Motu Shariat Review Petition No,1-R of 1979, PLD 1990 SC 865, will be applicable to the present case to the extent that the provisions of the Code, which have been expressly excluded by subsection (1) of section 7 of the Act and which are not inconsistent with the provisions of the Act, shall remain available, and, therefore, 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 been held by Salahuddin Ahmed, J., in the case of Chaudhry Zahur Ilahi (supra). However, I may state that the question of applicability of section 561- A, Cr.P.C. Needs further examination in depth, on which I intend to dilate upon later on. ' The position which emerges from the above discourse is that the High Court during the pendency of trial of an accused person under the Act by the Special Court before any conviction is recorded, can press into service section 497, Cr.P.C. With its provisos 1 and 3. But since section 498, Cr.P.C. Has been expressly excluded in subsection (1) of section 7 of the Act, the same cannot be invoked in aid. Gul Muhammad, J. (as he then was) speaking on behalf of a Division Bench of the Lahore High Court in the case of Altaf Hussain v. State (PLD 1985 Lah. 10) has brought out a fine distinction by holding that the High Court's power under section 498, Cr.P.C. At the trial stage has not been excluded and that the exclusion relates to the appellate stage. In my view, the above fine distinction cannot be spelt out from the language of subsection (1) of section 7 of the Act, though the above section 7 is a composite section which not only deals with the appellate power of the High Court, but also touches upon its revisional power, power to transfer case from one Court to another and the power to issue a writ in the nature of Habeas Corpus. 21. I may now advert to the question, whether provisos 1 and 3 to subsection (1) of section 497, Cr.P.C. Can be pressed into service by the Special Court. In this regard, it may be pertinent to observe that the main object of subsection (8) of section 5-A of the Act seems to be that it has done away with the distinction between bailable and non-bailable offences by substituting the same with the expression of scheduled offences. All the scheduled offences have been made non- bailable, though some of the offences included in the Schedule are bailable offences under Cr.P.C. To this extent, there is inconsistency between subsection (8) of section 5-A of the Act and subsection (1) of section 497, Cr.P.C. But there is nothing in above subsection (8) of section 5-A of the Act which may be construed as inconsistent to provisos 1 and 3 to subsection (1) of section 497, Cr.P.C. Even in Allied Bank case, it has been held that section 5(6) of the Ordinance does not constitute a complete Code for the grant of bail to persons accused of offences mentioned in the Schedule to the exclusion of all provisions in the Code relating to the same subject and, because of that, it has been held that subsections (2) to (5) of section 497 of the Code remained available to the Special Court and the High Court. In my view by above, parity of reason provisos 1 and 3 in subsection (1) of section 497, Cr.P.C. Can be pressed into service by the Special Court. ' It may be pertinent to point out the original section 497 of the Code as was enacted in 1898 did not contain above provisos 1 and 3 to subsection (1) of section 497, Cr.P.C. However, with the passage of time, it was felt that an exception to the rule contained in subsection (1) of section 497 should be made in respect of a person below the age of 16 years, a woman and a sick or infirm person, so in 1923 proviso 1 to subsection (1) of section 497, Cr.P.C. Was added by the Code of Criminal Procedure (Amendment) Act, 1923 (Act XVIII of 1923) in order to enable the Court to grant bail to any person under the age of 16 years or to any woman or to any sick or infirm person who otherwise on merits would not be entitled to bail.
---
## Page 6
' It seems that the superior Courts in some of the cases held that inordinate delay in prosecution of a criminal case amounts to abuse of process of Courts/law warranting grant of bail on the above ground. In this regard reference may be made to the case of Riasat Ali v. Ghulam Muhammad and another (PLD 1968 SC 353), the case of Ahrar Muhammad and others v. The State (PLD 1974 SC 224) and the case of Malik Ghulam Jilani v. Station House Officer, Police Station Gulberg, Lahore and 2 others (PLD 1975 Lahore 210). It appears that the Legislature took notice of the above judicial dictum and in order to give statutory recognition to the above ground and also probably on account of overcrowding of jails, has enacted proviso -3 to subsection (1) of section 497 through Code of Criminal Procedure (Second Amendment) Ordinance, 1979 (Ordinance LXXI of 1979), (gazetted on 22-12-1979) providing the statutory delay mentioned therein as a ground for admitting an accused person to bail in respect of non-bailable offences. It may also be stated that proviso 4 was incorporated by Code of Criminal Procedure (Second Amendment) Ordinance, 1983 (Ordinance XXXII of 1983) providing exception to above proviso 3 by laying-down that the provision of the third proviso shall not apply to a previously convicted offender or to a person who, in the opinion of the Court is hardened or dangerous criminal. In my opinion, the above provisos 1 and 3 contain independent grounds for bail in respect of non-bailable offences and, therefore, in the absence of express exclusion of section 497, Cr.P.C. In subsection (8) of section 5-A of the Act, the above ground shall be available to the Special Court as well 22. As regards the question, whether the High Court can grant bail to a convict during the pendency of his appeal, it may be observed that in the Allied Bank case as well as in the case of Abdul Khaliq (supra) decided by a Full Bench of the Sindh High Court, it has been held that since application of section 426, Cr.P.C. Has been expressly excluded by subsection (1) of section 7 of the Act which inter alia deals with the power of the High Court as an appellate forum no bail can be granted by the High Court or by any other Court to a convict during the pendency of his appeal under section 7(1) of the Act, before the High Court. However, in Abdul Khaliq's case (supra), has also been held that since the jurisdiction of the High Court under section 561-A, Cr.P.C. Has not been specifically and categorically taken away, the above provision can be pressed into service in an appropriate case which can be called a case of hardship. This Court in the Allied Bank case though was inclined to favour invocation of above section 561-A, Cr.P.C. In the case of inordinate delay but had left the above question open. ' I am inclined to hold that during the pendency of an appeal the High Court cannot release a convict on bail in view of the exclusion of the application of section 426, Cr.P.C. By section 7(1) of the Act and that the power to release a convict during the pendency of his appeal cannot be pressed into service by the High Court as an ancillary or incidental or independent from section 426, Cr.P.C. As has been held in Mirza Jawad Beg's case, Ubedullah's case, Muhammad Yaqub's case and the case of Syed Zeeshan Akhtar Zaidi (supra). The above exclusion seems to have rational as there is a marked distinction between a case in which a person is facing trial for an offence allegedly committed by him and a case in which a competent Court has recorded a finding of guilt against the accused person. It is a cardinal principle of criminal jurisprudence that an accused person is presumed to be innocent till the time his guilt is proved beyond reasonable doubt by the prosecution and, therefore, an accused person during the trial stands on different footing than an accused person against whom a competent Court has returned the verdict of guilt, as in the latter case the above presumption of innocence disappears. Keeping in view the above marked distinction, Hamoodur Rehman, C.J., in the case of Abdul Karim and others v. The State 1969 SCMR 312 (supra) while declining leave against the order of the erstwhile High Court of West Pakistan Lahore refusing to grant of bail after conviction for a bailable offence, held that there can be no such general rule that in every case where a person is convicted of a bailable offence, he must be enlarged on bail during the pendency of the appeal and that section 426, Cr.P.C. Clearly gives a
---
## Page 7
discretion to the High Court to grant or refuse bail although the discretion must like all other discretions be exercised upon sound and judicial principles. 23. The question which needs further consideration is, as to whether in no case during the pendency of an appeal the High Court can release a convict on bail or can it press into service section 561-A, Cr.P.C. In the case of Lala Jairam Das and others v. Emperor (AIR 1945 PC 94), the Privy Council has held that Chapter 39 of the Code of Criminal Procedure together with section 426 contains a complete and…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.