1992 S C M R 2192

[Supreme Court of Pakistan]

Preset: Nasim Hasan Shah, Shafiur Rahman, Ajmal Mian, Rustam S. Sidhwa and Sajjad
Ali Shah, JJ

Criminal Appeals Nos.221-K and 222-K of 1992

THE STATE---Appellant

versus

Syed QAIM ALL SHAH---Respondent

(On appeal from the judgment/order dated 21-10-1991 of the High Court of Sindh, Karachi,
passed in Criminal Bail Applications Nos.438/1991 and 937/1991).

Criminal Appeal No.1-K of 1992

THE STATE--Appellant

versus
SHAH NAWAZ KHAN JUNEJO--Respondent

(On appeal from the judgment dated 15-12-1991 of the High Court of Sindh, Karachi, passed in
Bail Application No.1055/1991).

Criminal Appeals Nos.221-K, 222-K and 1-K of 1992, decided on 11th August, 1992.

Per Ajmal Mian, J.; Sajjad Ali Shah, J. agreeing--

(a) Criminal Procedure Code (V of 1898)--

----S. 497(1), first proviso---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was
granted to consider the question whether the ratio of, judgment in case of Muhammad Aslam v.
The State 1991 SCMR 599 could be pressed into service in the case and whether a person facing
trial before a Special Court constituted under Suppression of Terrorists Activities Act, 1975
could seek bail on-medical ground under S.497(1), first proviso, Cr.P.C.

Muhammad Aslam v. The State 1991 SCMR 599 ref.

(b) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----Ss. 5A(8) & 7---Analysis of Ss.5A(8) & 7---Expression "or by any other Court" employed in
S.5A(8) after the words "Special Court" includes the High Court subject to what has been
provided in S.7.

(c) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 7(1)---"No Court" in S.7(1) includes High Court.

The expression "no Court" will include High Court, as the High Court as an appellate Court has
the power under section 423, Cr.P.C. to pass appropriate order, the application of which section
has not been excluded under the second part of subsection (1) of section 7 of the Suppression of
Terrorist Activities (Special Courts) Act, 1975.

(d) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)-

----S. 7(1)---Criminal Procedure Code (V of 1898), Ss.497(1) & 561-A---High Court has the
power to press into service 5.497, Cr.P.C. with its provisos during the pendency of trial before
the Special Court---Section 561-A, Cr.P.C. however, can also be pressed into service in an
appropriate case.

Muhammad Aslam v. The State 1991 SCMR 599; Riasat Ali v. Ghulam Muhammad PLD 1968
SC 353; Mirza Jawad Beg v. The State PLD 1975 Kar. 628; Emperor v. Banoari Lai Sarnia and
others AIR 1943 FC 36; The Commissioner, Khairpur Division, Khairpur and another v. Ali
Sher Sarki PLD 1971 SC 242; The Sindh Employees' Social Institution and another v. Adamjee
Cotton Mills Ltd. PLD 1975 SC 32; Shahzad Hussain and Another v. The State PLD 1980 Lah.
54; Gul Muhammad and 2 others v. The State 1987 PCr.LJ 737; Abdul Hafeez Pirzada v. The
State. 1987 PCr.LJ 2415; Deputy Superintendent of Police, Larkana v. Mumtaz Ali Bhutto and 8
others 1988 PCr.LJ 195; Aftab Ahmad Shah v. The State 1989 PCr.LJ 112; Ubedullah v. The
State 1989 PCr.LJ 626; Ch.Zahur Ilahi, M.NA. v. The State PLD 1977 SC 273; Abdul Khalique
v. The State PLD 1990 Kar. 448; Asif Ali Zardari v. The State 1991 PCr.LJ 595; Manzoor
Hussain Wassan v. The State PLD 1991 Kar. 261; Altaf Hussain v. The State PLD 1985 Lah. 10;
Muhammad Yaqub Ali v. The State PLD 1985 Lah. 48; Abdul Majid v. The Judge, Special
Court (Offences in Banks), Lahore and another 1985 PCr.LJ 890; Muhammad Moosa v. The
State 1986 PCr.LJ 578; Sajawal Sarwar v. The State 1988 PCr.LJ 1558; Syed Zeeshan Akhtar
Zaidi v. The State 1988 PCr.LJ 843; Nifasat Ali Khan v. The State PLD 1989 Kar. 198; National
Telephone Company Limited (In Liquidation) and another v. His Majesty's Postmaster-General
1913 AC 546; Secretary of State for India v. Chellikani Rama Rao and others AIR 1916 PC 21;
Mating Ba Thaw v. Ma Pin 1961 IA 158; Hussain Bakhsh v. Settlement Commissioner and
others PLD 1970 SC 1; In re: Suo Motu Shariat Review Petition No.1-R of 1979 (PLD 1990 SC
865); Ahrar Muhammad and others v. The State PLD 1974 SC 224; Malik Ghulam Jilani
v. Station House Officer, Police Station, Gulberg, Lahore and 2 others PLD 1975 Lah. 210 and
Abdul Karim and others v. The State 1969 SCMR 312 ref.
(e) Interpretation of statutes-

---- Statute which transgresses on the rights of a subject whether as regards his person or
property should be so construed, if possible, which may preserve such rights.

(f) Interpretation of statutes--

---- If two views of a provision of a penal statute are possible, one which favours an accused
person be preferred over the other.

(g) Interpretation of statutes--

---- Jurisdiction of the superior Courts could not be abolished or ousted unless same was done by
express, clear and unambiguous words or clear intendment.

(h) Jurisdiction--

----Jurisdiction of the superior Courts could not be abolished or ousted unless same was done by
express, clear and unambiguous words or clear intendment.

(i) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 7(ix)---Criminal Procedure Code (V of 1898), Ss.497(1) & 561-A--Jurisdiction of High

Court---When an established Court without more is provided is a forum for a particular redress,
it will be implied that the ordinary incedents of the procedure of that Court are to attach to it.
(j) Interpretation of statutes--

---- When an established Court without more is provided as a forum for a particular redress, it
will be implied that the ordinary incedents of the procedure of that Court arc to attach to it.

(k) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 7(I)---Criminal Procedure Code (V of 1898), Ss.497 & 561-A--Provisions of Criminal

Procedure Code, 1898 which have not been expressly excluded by S.7(1) of the Act and which
are not inconsistent with the provisions of the Act, shall remain available and therefore not only
S.497, Cr.P.C. but even S.561-A, Cr.P.C. can be pressed into service in an appropriate case.

Nifasat Ali Khan v. The State PLD 1989 Kar.198 ref.

(l) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S.7(1)---Criminal Procedure Code (V of 1898), S.497(1), provisos 1 & 3--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 S.497(1), Cr.P.C. with its provisos 1 & 3.

(m) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 5A(8)---Criminal Procedure Code (V of 1898), S.497(1),, provisos 1 and 3---Special Court
in absence of express exclusion of 5.497, ,Cr.P.C: in S.SA(8) of the Act can press into service
S.497(1), provisos 1 & 3, Cr.P.C.

(n) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----5.7(1)---Criminal Procedure Code (V of 1898), S.426---High Court, during the pendency of
appeal cannot release a convict on bail in view of the. exclusion of the application of S.426,
Cr.P.C. by S.7(1) of the Act---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 S.426, Cr.P.C.

(o) Criminal trial---

----Accused person is presumed to be innocent till the time his guilt is proved beyond reasonable
doubt by the prosecution---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 presumption of innocence disappears.

(p) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S.7(1)---Criminal Procedure Code (V of 1898), S.561-A---Appeal---Delay--Invocation of

5.561-A, Cr.P.C. by the High Court---Appeal of convict remaining pending for a number of
years either on account of delaying tactics on the part of prosecuting agency or because of heavy
work load of the Court---High Court, in case of such a nature may press into service S.561-A,
Cr.P.C. but not as a matter of course or as a substitute to S.426, Cr.P.C: Delay should be of the
nature which may be repulsive and unconscionable.

Section 561-A, Cr.P.C. cannot be invoked in aid where there are express provisions dealing with
a particular subject, for example, section 426. Cr.P.C. empowers an appellate Court to suspend
the sentence or to admit a convict to bail during the pendency of a criminal appeal against
conviction. In presence of above express provision in the Code, section 561-A cannot be pressed
into service nor the above provision can be used to defeat the express intention of the
Legislature, for example, in the present case subsection (1) of section 7 of the Suppression of
Terrorist Activities (Special Courts) Act, 1975 excludes the application of section 426, Cr.P.C.
during the pendency of an appeal under the Act before the High Court. If the High Court was to
invoke. section 561-A, Cr.P.C. because of the above exclusion of section 426, Cr.P.C., it may
amount to defeating the legislative intent. However, the exclusion of the application of section
426. Cr.P.C. by virtue of section 7(1) of the Act during the pendency of an appeal of a convict
before the High Court is founded on the assumption .that the appeal would be disposed of within
three months as provided in subsection (2) of section 7 of the Act, but in case an appeal of a
convict remains pending for a number of years either on account of delaying tactics on the part
of the Prosecuting Agency or because of the heavy work load of the Court, would it be fair and
just to deny him bail on the ground of delay? The delay in prosecution of a criminal case
amounts to abuse of process of Court/law warranting grant of bail, the High Court in a case of
above nature may press into service section 561-A, Cr.P.C., but not as a matter of course or as a
substitute to section 426, Cr.P.C. The delay should be of the nature which may be repulsive and
unconscionable.

(q) Criminal Procedure Code (V of 1898)--

----S. 561-A---Provisions of S.561-A, Cr.P.C. cannot be invoked in aid where there are express
provisions in the statute dealing with a particular subject.

(r) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 7(1)---Criminal Procedure Code (V of 1898), S.561-A---Convict during pendency of

appeal'before the High Court developing ailment of the nature that keeping him in detention may
result into his death and that he cannot be provided requisite treatment under detention in the
Government/or other hospitals, High Court may in such case invoke S.561-A, Cr.P.C. and may
release him on bail.

If a convict during the pendency of appeal before the High Court develops an ailment of the
nature that keeping him in detention may result into his death and that he cannot be provided
requisite treatment under detention in the Government and/or other hospitals, the High Court
may in such a case invoke section 561 .A, Cr.P.C. and may release him on bail, as such an order
will be within the ambit of the expression "or otherwise to secure the ends of justice", used in
section 561-A, Cr.P.C.

(s) Constitution of Pakistan (1973)--

----Art. 2A---Courts, while construing the provisions of statutes should make efforts that the
interpretation of the relevant provisions of the Statute should be in consonance with Art. 2A of
the Constitution and the grund norms of human rights.

Constitution guarantees fundamental rights and Article 2A thereof enshrines Islamic

mandates - and 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 statute should be in consonance with the above Articles of the
Constitution and the grund norms of human rights.

(t) Suppression of Terrorist Activities (Special, Courts) Act (XV of 1975)--

---S. 7(1)---Criminal Procedure Code (V of 1898), Ss.561-A & 497---Appeal before High
Court---Bail on medical ground---Court, while admitting an accused person to bail on the
medical ground in a case in which bail cannot be granted on merits, because of the statutory
prohibition, is required to examine the question, whether the nature of the ailment is such which
warrants release of the accused person on bail and for what period---Prosecution has to bring
material before the Court to negate the medical expert's views relied upon by the accused.

(u) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 7(1)---Criminal Procedure Code (V of 1898), S.497(1), provisos (1) & (3)---Provisions of
S.497(1), provisos (1) & (3), Cr.P.C. are available to the Special Court and the High Court in a
case in which an accused person may be facing trial under the Act before a Special Court.

Muhammad Aslam v. The State 1991 SCMR 599 modified.

Per Shafiur Rahman, J.; Nasim Hasan Shah, J. agreeing--

(v) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----Preamble---Criminal Procedure Code (V of 1898), Preamble---Constitution of Pakistan
(1973), Art.203---Powers of High Court---None of the remedial powers enjoyed by the High
Court under Criminal Procedure Code, 1898 are curtailed or superseded by the Suppression of
Terrorist Activities (Special Courts) Act, 1975---Only modification made in the exercise of
powers of High Court is that it has been made exercisable by a Bench of not less than two"
Judges, with all its consequences---Reasons stated.

Mst. Amir Khatoon v. Faiz Muhammad PLD 1991 SC 787; National Telephone Company Ltd. v.
Postmaster General 1913 AC 546 and Hussain Bakhsh v. Settlement Commissioner PLD 1970
SC 1 ref.

(w) Interpretation of statutes--

---- Statutory provisions have to be interpreted harmoniously and consistently with the
Constitutional provisions, the paramount law, already occupying the field.

Per Rustam S. Sidhwa, J: --

(x) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 5A(8)---Criminal Procedure Code (V of 1898), S. 497---Provisions of S.5A(8) of the Act

does not completely oust the applicability of 5.497, Cr.P.C. in respect of bails at trial stage.

Muhammad Aslam v. The State 1991 SCMR 599 ref.

(y) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 5A(8)---What is contained in S.5A(8) 'of the Act is not a provision relating to the grant of
bail, but a provision detailing circumstances prohibiting the grant of bail.

(z) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----Ss. 7 & 5A(8)---Criminal Procedure Code (V of 1898), S.497---Provisions of S.7 of the Act
do not exclude S.497, Cr.P.C. which is fully applicable to the Act---Provisions of S.5A(8) of the
Act can only act as a partial limitation to the rule laid down in S.497, Cr.P.C.

(aa) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 5A(8)=--Criminal Procedure Code (V of 1898), S.497---Provisions of S.5A(8) of the Act

and S.497, Cr.P.C. analysed and compared---Provision of S.5A(8) of the Act provides a
substitute to a part of the rule stated in S.497(1), Cr.P.C.

(bb) Interpretation of statutes--

---- Penal provisions---Relief giving provisos---Conflict between the two provisions cannot be
resolved by eliminating the provisos---Penal provision 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 a somewhat conflicting or defective drafting, where such a clear intention cannot be
spelt out, the benefit of the provisos cannot be allowed to be dropped.

(cc) Interpretation of statutes--

---- Meaning of a statute---How to be determined.

In order to know what a statute does mean, it is one important step to know what it does not
mean; and if it be quite clear that .there is something which it does not mean, then that which is
suggested or supposed to be what it does mean must be in harmony and consistent with what it is
clear that it does not mean. What it forbids must be consistent with what it permits.

Attorney-General v. Sillem (1864) 2H & C 431 fol.

(dd) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----S. 5A(8)---Criminal Procedure Code (V of 1898), S.497---Provisions of S.5A(8) of the Act

cannot displace S.497, Cr.P.C. except what is in conflict with it---Provisos 1 & 3 of S.497,
Cr.P.C. therefore are not eliminated.

(ee) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----Ss. 7 & 5A(8)---Criminal. Procedure Code (V of 1898), Ss.497 & 561-A--Delay in the
disposal of the case by the State would be a clear abuse of the process of the Court, entitling the
accused to seek bail under S.497(1), third proviso, Cr.P.C. if not under S.561-A,
Cr.P.C.---[Delay].

(ff) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

----Ss.7 & 5A(8)---Criminal Procedure Code (V of 1898), Ss.497(1) & 561-A--Bail, grant
of---Both the Special Court and the High Court- can grant bail to an accused being tried for a
scheduled offence on medical grounds.

Aftab Akhund, A: G. Sindh arid RA. Qureshi, Advocate-on-Record (absent) for Appellant.
Abdul Mujeeb Pirzada, Advocate Supreme Court and N.C. Motiani, Advocate-on-Record
(absent) for Respondents.

M.B. Zaman and Raja Muhammad Anwar, Senior Advocates Supreme Court: Amicus curiae.

Date of hearing: 30th June, 1992.

JUDGMENT

AJMAL MIAN, J: --The above three criminal appeals have been filed by the State with the
leave of this Court against the grant of bail to respondents Syed Qaim Ali Shah and Shah Nawaz
Khan Junejo by a Division Bench of the High Court of Sindh during the pendency of trial of the
above respondents alongwith 12 co-accused persons under sections 302/307/120-B/34, P.P.C. in
the Special Court under the Suppression of Terrorist Activities Act (XV of 1975), hereinafter
referred to as the Act, for causing death of 26 persons and injuries to a number of persons on
22-8-1990 in the various localities of Karachi by indiscriminate firing on the reception camps set
up by M.Q.M. for according reception to their leader Altaf Hussain who was to arrive on the
above date from London. A number of F.I.Rs. were lodged in respect of the. above incident.

2. It seems during the investigation a number of co-accused were arrested; one of them was one
Zahid Saeed who was arrested on 24-12-1990. Another co-accused Salimuddin alias Silloo was
also arrested on 8-1-1991. The above two co-accused allegedly made confessional statements
before First Class Magistrate inter alia implicating the respondents. Upon completion of the
investigation, as many as six challans were submitted in respect of different F.I.Rs. The
respondents were arrested. Both were declined bail by the Special Court. However, a Division
Bench of the High Court admitted respondent Qaim Ali Shah to bail in the present two cases on
medical ground, though one of the learned Judges of the Division Bench was of the view that he
had good case for bail on merits. The other learned Judge of the Division Bench was of a
contrary view on merits. Respondent Shah Nawaz Khan Junejo has been granted bail on medical
ground in the present case. The State filed Criminal Petitions Nos.52-K and 53-K of 1991 against
the above orders of grant of bail to Qaim Ali Shah, which were granted to consider the following
question:--
"Whether the ratio of the above judgment in the case of Muhammad Aslam v. The State 1991
SCMR 599 can be pressed into service in this I case and whether a person facing trial before a
Special Court under the Act, can seek bail on medical ground under first proviso to subsection
(1) of section 497, Cr.P.C."

3. Similarly, Criminal Petition No.4-K of 1992 was filed against the grant of bail to the
respondent Shah Nawaz Khan Junejo, which was granted for the reason that in above Criminal
Petitions Nos.52-K and 53-K of 1991 in respect of Qaim Ali Shah, leave had already been
granted to consider the applicability of the judgment of this Court in the case of Muhammad
Aslam v. The State (supra) (which is also under the title of Allied Bank Limited v. Khalid
Farooq 1991 SCMR 599.

4. A Bench of three Judges of this Court heard arguments in the above three appeals on
17-5-1992 and reserved the appeals for judgment. However, since the above Judges 'of the
Bench were of the view that the view taken by this Court in the case of Muhammad Aslam v.
The State (supra) required reexamination, the matter was referred to the Hon'ble Chief Justice,
who ordered the hearing of the above appeals by a larger Bench comprising five Judges.

5. In support of the above appeals, Mr. Aftab Akhund learned Advocate-General Sindh, has
heavily relied upon the judgment in the case of Muhammad Aslam v. The State (supra),
hereinafter referred to as the Allied Bank case as it is mentioned as such at page 599 of the above
report, whereas the name of Muhammad Aslam appears at page 600. It has been urged by him on
the basis of the above judgment that proviso 1 to subsection (1) of section 497, Cr.P.C. could not
have been pressed into service by the learned Judges of the Division Bench of the High Court.

On the other hand, Mr. Abdul Mujeeb Pir4ada, learned counsel for the respondents, has
contended that since section 7 of the Act which deals with the power of the Appellate Court, has
not excluded the application of section 497, Cr.P.C., the first proviso to subsection (1) of section
497, Cr.P.C. was very much available to the High Court. His alternate submission was that, in
any case, the High Court under section 561-A. Cr.P.C. could have invoked its inherent
jurisdiction and could have admitted the respondents to bail on the ground of sickness.

Messrs M.B.Zaman and Raja Muhammad Anwar, at the request of the Court, appeared as amicus
curiae. Mr.M.B.Zaman, learned senior counsel, has submitted that the following three views are
possible--
(i) that subsection (8) of section 5-A of the Act ousts the jurisdiction of the Special Court and of
the High Court to grant bail on the medical ground as well as on the ground of delay;

(ii) that since in section 7 of the Act, section 497, Cr.P.C. has not been mentioned as one of the
sections, the application of which has been excluded, the High Court can press into service
provisos 1 and 3 of subsection (1) of section 497, Cr.P.C. relating to sickness and delay, though
the words "no Court" employed in section 7 shall include the High Court;

(iii) That section 7 of the Act excludes the jurisdiction of other Courts than the High Court and,
therefore, section 497 shall be available to the High Court with the above provisos.

Raja Muhammad Anwar, learned senior counsel, has contended that the High Court, being Court
of record and being a superior Court, any restriction on its power is uncalled for as it exercises--

(i) Constitutional jurisdiction;

(ii) jurisdiction under general law, and .

(iii) jurisdiction under special laws.

According to him, section 497 as well as section 561-A, Cr.P.C. are available to the High Court
in a case under the Act.

6. Before proceeding with the above matter any further, I may observe that the Allied Bank case
was under the provisions of the Offences in Respect of Banks (Special Courts) Ordinance (IX of
1984), hereinafter referred to as the Ordinance. The relevant provisions of the Act and of the
Ordinance are in pari materia inasmuch as sections 5(6) and (7), 10(1), (2) and (3) and 12 of the
Act are more or less same as sections 5(6),(8), 7(1), (2) and (3) and 10 of the Ordinance. It may
also be observed that subsections (3) to (7) of section 5 of the Act have been omitted by the
Suppression of Terrorist Activities (Special Courts) Act, 1990 (Act V of 1990) with effect from
13-10-1988 and a new section, namely, section 5-A has been incorporated which contains inter
alia the provisions in respect of the matters covered by the above omitted subsections (4) to (7)
of section 5 of the Act.

7. In the Allied Bank case, this Court has dealt with two cases; one relating-to an undertrial
accused person and the other of a convicted accused person. The question before this Court for
consideration was "whether the High Court can release an accused on bail pending his trial,
where the same has been refused by the Special Court, and whether bail can be allowed, pending
the determination of his appeal, where such an accused has been convicted by the Special Court
under the Ordinance."

8. While dealing with the above question, the question whether provisos 1 and 3 to subsection (1)
of section 497, Cr.P.C. can be pressed into service has also been dilated upon in detail and has
been answered as follows:--

"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 necessary intendment or implication. In the final analysis, it is
not possible to subscribe to the view that section 5(6) of the Ordinance constitutes 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."

9. Whereas, while dealing with subsection (1) of section 10 of the Ordinance which is in pari
materia with subsection (1) of section 7 of the Act, the Court concluded as under:--

"Notwithstanding the provisions of the Code, no Court shall have authority to revise such
sentence. The power of revision obviously would be with a Court other than the Special Court
and having a status higher than the Special Court. Since the Special Court has all the powers
conferred by the Code on a Court of Session exercising original jurisdiction, the only Court
capable of exercising revisional power would, therefore, be the High Court. Thus, the power of
the High Court under section 439 of the Code to revise the sentence would appear to be
expressly excluded. Further, notwithstanding the provisions of the Code, no Court shall have
authority 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. Since the Special Court is vested with the powers of a
Court of Session, the only other superior Courts which would have authority to transfer any case
from a Special. Court would appear to be a High Court under section 526 of the Code. This
power also expressly stands excluded. The power under section 426 of the Code to suspend a
sentence and release a convict on bail pending the determination of his appeal and the power
under section 491 of the Code to issue directions of the nature of a habeas corpus, all being
powers vested in and exercisable by the High Court, and the power under section 498 of the
Code to grant pre-arrest bail being power vested in the High Court and the Court of Session, all
stand expressly excluded. Still further, notwithstanding the provisions of the Code, no Court
shall have jurisdiction in respect of such authority or powers as are conferred on the Special
Court by the Ordinance in respect of proceedings before itself. The word "proceedings", as held
in Zahur Elahi v. The State PLD 1977 SC 273, covers all matters connected with, or ancillary to
the trial of a person charged before the Court i.e. proceedings which are pending before the
Court. Thus, in respect of any special jurisdiction or power conferred or any special form of
procedure prescribed by the Ordinance, no Court shall have jurisdiction to interfere or
intermeddle in any way with such jurisdiction, power or procedure during the pendency of the
proceedings before the Special Court. In short, the words "no Court" appearing in the second part
of subsection (1) of section 10 of the Ordinance almost exclusively cover the High Court., Since
the ouster provided in this subsection is express, it will prevail. It is, therefore, clear that the
power of the High Court and the Court of. Session to grant pre-arrest bail to an accused pending
his trial and the power of the High Court to suspend a sentence and release a person who has
been convicted and sentenced by the Special Court on bail, pending his appeal, stand excluded."

10. It was also examined, whether section 561-A, Cr.P.C. could be pressed ' into service in place
of provisos 1 and 3 of subsection (1) of section 497, ` Cr.P.C. and it was held that the High Court
had no power under section 561-A, Cr.P.C. to release a convict on bail pending the disposal of
his appeal under the Ordinance in view of the clear bar contained in section 10(1) of the
Ordinance. The question, whether iii exceptional case such as where there is complete want of
jurisdiction or the evidence on the record does not make out any case for conviction, the High
Court would still be barred from releasing on bail pending the disposal of his appeal, has been
left open to be examined at proper time when such ,a case is before the Court. The question,
whether on the ground of delay the Court can release an accused person on bail under section
561-A, Cr.P.C. in view of the dicta laid down by this Court in Riasat Ali v. Ghulam Muhammad
PLD 1968 SC 353 that delay in prosecuting a case amounts to an abuse of process of Court and
is a valid ground to enlarge a person on bail, has also been, left open to be examined in an
appropriate case.

11. After having dealt with the ratio decidendi of the Allied Bank case, I may reproduce the two
relevant provisions of the Act, namely, subsection (8) of section 5-A and section 7, which read as
follows:--
"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.

7. Appeals from sentences imposed by Special Courts.--(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, (1) (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 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.

(2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the
passing of the sentence (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).

(3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of
sentences passed by a Special Court."

12. A perusal of the above-quoted subsection (8) of section 5-A indicates that the first part of it
has been lifted from second part of subsection (1) of section 497, Cr.P.C. which provides that
"but he shall not be so released if there appear reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment for life or imprisonment for ten
years:" The only difference seems to be that in the first part of above subsection (8) in place of
the words "guilty of an offence punishable with death or imprisonment for life or imprisonment
for ten years", the expression "guilty of a scheduled offence" has been employed. The second
part of above subsection (8) is in fact reproduction of proviso 2 to subsection (1) of section 497,
Cr.P.C., which prohibits release on bail of a person accused of the offence referred to in the
second part of subsection (1) of section 497 and the first part of above subsection (8) without
giving notice to the prosecution. It may be pointed out that in the above first part of subsection
(8), it has been provided "that an accused shall not be released on bail by Special Court or by any
other Court". It seems that there has been controversy on the question whether the words "or by
any other Court" employed in the above subsection (8) after the words "Special Court" will
include the High Court or the same refer to the Courts other than the High Court, of the stature of
Sessions Court as the Special Court enjoys the power of Sessions Court. The proper
construction -of above expression seems to be that the same will include the High Court subject
to what has been provided in section 7 of the Act and what is stated hereinbelow.

13. Whereas a plain reading of first part of subsection (1) of section 7 h shows that it confers
right of appeal to the persons sentenced by a Special Court to the High Court within whose
jurisdiction the sentence has been' passed. It also by virtue of amendment brought about by the
Suppression of Terrorist Activities (Special Courts) Amendment Act, 1975 (Act III of 1976)
confers on the Provincial Government the right to file an appeal against the order of acquittal
passed by a Special Court. It may further be noticed that the second part of the above subsection
(1) lays down that save as aforesaid and notwithstanding the provisions of the Code (i.e. Code of
Criminal Procedure) 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 the 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.

14. In the Allied Bank case, it has been held by this Court that the effect of above second part of
subsection (1) of section 7 of the Act is that the High Court has been denied the power under
section 439 of the Code to revise the sentence or to transfer any case from a Special Court under
section 526 of the Code or to make any order under section 426 for suspending the sentence or to
issue writ of habeas corpus under section 491, Cr.P.C. or to admit an accused person to bail
under section 498, Cr.P.C. It may be observed that the other view cam be that the expression "no
Court" used in the above relevant portion of second part of subsection (1) of section 7 of the Act,
refers to other Courts than the High Court as if the High Court as an appellate Court cannot
revise the sentence, seemingly it cannot effectively exercise appellate jurisdiction. I am inclined
to hold that the view taken by this Court in, the Allied Bank case that the expression "no Court"
will include High Court, seems to be correct as the High Court as an appellate Court has the
power under section 423, Cr.P.C. to pass appropriate order, the application of which section has
not been excluded under the above second part of subsection (1) of section 7 of the Act.

15. It may also be noticed that subsection (2) of section 7 of the Act prescribes the period of
limitation for filing of an appeal, namely, 30 days. It also provides that the appeal filed under the
above subsection (1) shall be heard and decided by a Bench of not less than two Judges of the
High Court within three months.
It may further be noticed that subsection (3) lays down that Chapter XXIX of the Code, which
deals with the power of the Provincial Government and the President to suspend or remit
sentence or to commute punishment, shall apply to the suspension, remission and commutation
of sentences passed by a Special Court.

16. The question whether an undertrial accused person or a convict under the Act or Ordinance
can be admitted to bail, has been subject-matter of judicial review in context with the above
provisions of the Act and the Ordinance. I intend first to take up the cases pertaining to the Act:--

(i) Mirza Jawad Beg v. The State PLD 1975 Karachi 628;

In the above case, a Division Bench of the erstwhile High Court of Sindh and Balochistan while
construing section 7 of the Act, made a distinction between the High Court and the Division
Bench of the High Court which was to hear an appeal under section 7 of the Act. It was held that
power of the High Court to suspend the sentence under section 426 was taken away but this
power remained intact as far as the Division Bench of the High Court acting as the appellate
Court was concerned. It was further held that even otherwise the Division Bench had power of
granting interlocutory relief independently of the provisions of the Code. Reliance was placed on
the case of Emperor v. Banoari Lal Sarma and others AIR 1943 FC 36, the case of The
Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242,
and The Sindh Employees' Social Institution and another v. Adamjee Cotton Mills Ltd: PLD
1975 SC 32.

(ii) Shahzad Hussain and another v. The State PLD 1980 Lahore 54;

in which a -learned Single Judge of the Lahore High Court took the view while construing
sections 4 and 7 of the Act read with sections 28, 29, 439 and 561-A, Cr.P.C that the powers of
the High Court under sections 439 and 561-A have not been taken away against interim or
interlocutory order but revisional power has been taken away only against judgment. Reliance
was also placed on Article 203 of the Constitution relating to superintendence and control of the
subordinate Courts by the High Court. In the above case, bail order was restored.
(iii) Gul Muhammad and 2 others v. The State 1987 PCr.LJ 737;

In the above case, a Division Bench of the Sindh High Court has held that power of the High
Court under section 497, Cr.P.C. to grant bail to an undertrial prisoner facing trial before a
Special Court under the Act, remained unaffected. The petitioner was admitted to bail under
proviso 3 to subsection (1) of section 497, Cr.P.C. on the ground of expiry of statutory period of
two years. .

(iv) Abdul Hafeez Pirzada v. The State 1987 PCr.LJ 2415;

in which a Division Bench of the Sindh High Court to which I was a Member, held that proviso 1
to subsection (1) of section 497 was available to the High Court for admitting the petitioner to
bail who was facing trial under the Act on medical ground. It may be advantageous to reproduce
the relevant portion of the above judgment which reads as follows:--

"In our view, the above-quoted subsection of section 7, does not reinforce the submission of the
learned AA.-G. On the contrary, it lends support to the view, which we are inclined to take. The
factum that though sections 426, 491 and 498, Cr.P.C. are mentioned as the sections which
cannot be pressed into service after inter alia the recording of conviction and sentence, and not
section 497, Cr.P.C. lends support to the submission that what was intended to have been
excluded, has been expressly mentioned in the Act of 1975.

Another aspect, which is worth mentioning is that subsection (6) of section 5 of the Act of 1975
referred to hereinabove deals with non grant of bail on merits. To put it precisely, it prohibits
grant of bail if there appear reasonable grounds for believing that the accused has been guilty of
a scheduled offence. It does not touch upon other recognized grounds even in murder cases,
namely, tender age, sickness and infirmity mentioned in the first proviso to subsection (1) of
section 497, Cr.P.C. Two views are possible as to the effect of non mentioning of the above
grounds, one can be that the above grounds are not available, the other view can be that they are
available. We are inclined to hold that if two constructions of a penal provision are possible, one
which favours the accused, is to be preferred over the other. If we were to accept the learned
Additional Advocate-General and Assistant Advocate-General's contention, it will lead to
hardship. The Court will be powerless to grant bail even if an accused is going to die on account
of a serious ailment in custody. This cannot be the intention of the law-makers. In this regard
reference may be made to the observations of Salahuddin, J. in the majority judgment in the
above-quoted case of the Hon'ble Supreme Court of Pakistan namely, Chaudhry Zahur Ilahi, on
the question of rules of interpretation, which read as follows:--

`According to the accepted principles of interpretation a reasonable intention must always be

attributed to the Legislature. Again statutes which encroach on the right of the subject, whether
as regards person or property, should be so interpreted, if possible, as to respect such rights vide
Maxwell on Interpretation of Statutes.'."

(v) Deputy Superintendent of Police, Larkana v. Mumtaz Ali Bhutto and 8 others 1988 PCr.LJ
195;

In the above case, a learned Single Judge of the Sindh High Court admitted the under-trial
prisoners under the Act to bail on medical ground by observing that Pakistan being an Islamic
Democratic State it would be inhuman and anomalous to contend that a person who was sick and
infirm to such an extent that his further detention in jail was detrimental to his life should not be
released on bail though in a case punishable with death, he could be admitted to bail.

(vi) Aftab Ahmad Shah v. The State 1989 PCr.LJ 112;

in which a Division Bench of the Sindh High Court to which I was a Member, admitted the.
petitioners to bail on merits but one of them on medical ground as well. It may be advantageous
to reproduce the relevant portion of para 11 and para. 12, which read as follows:--

"A perusal of the above-quoted subsection (6) of section 5 indicates that prohibition to grant bail
is not absolute but conditional and dependent on the question, whether there appear reasonable
grounds for believing that an applicant has been guilty of a scheduled offence. In other words. if
the Special Court or the High Court takes the tentative view that there do not appear reasonable
grounds for believing-that an applicant has been guilty of a scheduled offence, bail can be
granted ... .... ... .... .... .... ... .... ... ...

12. There seems to be preponderance of view that even in the cases triable by Special Courts
under special laws in the absence of any express prohibition in the relevant statute, sections 497
and 498, Cr.P.C. can be invoked inter alia, by the High Court while considering a bail
application. There is no express prohibition provided in the Act of 1975 as to the application of
sections 497 and 498, Cr.P.C. Mr.A.A. Mohammadally has referred to' subsections (1) to (5) of
section 5 of the Act of 1975 and also section 10 of the Act of 1975 to contend that the provisions
of Cr.P.C. are not applicable. It will suffice to observe a that he has overlooked subsection (7) of
section 5 which provides that "A Special Court shall, in all matters with respect to which no
procedure has been prescribed by this Act, follow the procedure prescribed by the Code for the
trial of summons cases by Magistrates." In case of any inconsistency between a provision of the
Act of 1975 as to the procedure and a provision of the Cr.P.C. the former shall prevail but in the
absence of a provision in Act of 1975 the provisions of Cr.P.C. will be applicable even in a trial
before the Special Court. Section 10 which overrides the other law does not change the above
legal position."

(vii) Ubedullah v. The State 1989 PCr. LJ 626; ,

in which a Division Bench of the Sindh High Court admitted a convict to bail during the
pendency of the appeal by holding that the Division Bench hearing the appeal has the power to
grant relief which is ancillary or incidental to the appeal and that this power may not be
construed to mean that the bail or suspension of the sentence in appeal is to be granted as a
matter of course but a very exceptional case is to be made out. Reliance was placed inter alia on
the judgment of this Court in the case of Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273.

(viii) Abdul Khalique v. The Statc PLD 1990 Karachi 448;

in which, Sajjad Ali Shah, C.J. (as he then was) speaking on behalf of the Full Bench, held that
under section 7, the power of the High Court to grant bail has been expressly taken away by
mentioning in clear language that "no order can be passed under section 426, Cr.P.C." and that
the expression "no Court" used in section 7 includes High Court hearing the appeal. It has been
further held that since the jurisdiction of the High Court under section 561-A, Cr.P.C. is not
specifically acid categorically barred, as such it is intact to give desired relief in an appropriate
case which can be called a case of hardship, for example, if appeal is not decided within time
stipulated. The view taken in Mirza Jawad Beg's case (supra) was dissented from and it was held
that the principle that interim relief during hearing of appeal can be granted as ancillary or
incidental power of the appellate Court could not be pressed into service.

(ix) Asif Ali Zardri v. The State 1991 PCr.LJ 595;

In the above case, Saeeduzzaman Siddiqui, C.J. (as he then was) speaking for a Division Bench
of the Sindh High Court after referring to the case-law, held as follows:--

"From the above review of case-law it is quite clear that the Courts in Pakistan have consistently
taken the view that the High Court's powers to grant bail under section 497, Cr.P.C. before
conviction of an accused person by the Special Court (Suppression of Terrorist Activities) or
Special Court (Offences Against the Banks) have not been taken away either under the Act or
under the Offences in Respect of Banks (Special Courts) Ordinance, 1984. We are in respectful
agreement with the above view and see no reason to take any contrary view in the present cases.
We accordingly hold that the High Court's power under section 497, Cr.P.C. to grant bail to a
person accused of a scheduled offence and facing trial before a Special Court has not been taken
away completely and can be exercised in appropriate cases in terms of section 497, Cr.P.C.
subject to the restrictions contained in section 5-A(8) of the Act. The bail applications are,
therefore, maintainable."

(x) Manzoor Hussain Wassan v. The State PLD 1991 Karachi 261;

in which a Division Bench of the Sindh High Court comprising Saleem Akhtar and Imam Ali G.
Kazi, JJ. has held that the effect of omission to mention section 497, Cr.P.C. in section 7 of the
Act is that the same is available to the High Court during the pendency of the trial.

17. I may new revert to the cases decided under the provisions of the Ordinance.

(i) Altaf Hussain v. The State PLD 1985 Lahore 10;

In the above case, a Division Bench of the Lahore High Court while construing section 10 of the
Ordinance, inter alia, has held as follows:--
"The inclusion, in this ouster clause, of section 498, Cr.P.C., may therefore, mean to deprive the
High Court of its power to grant bail only after conviction, as is clear from- the following
wording of section 498, Cr.P.C.:--

"High Court……….may in any case, whether there be an appeal on conviction or not, direct that
any person be admitted to bail……."

The other contents of section 10, which pertain to proceedings before the Special Court have
nothing to do with the release of an accused and, therefore, we need not go into the same. It is,
therefore, quite clear that section 10 is not meant to oust or even curtail the power of the High
Court to grant bail at the trial stage.

17-A. Our above conclusion is supported firstly, by the fact that section 10 does not oust and
leaves intact, the power of the High Court to grant bail under section 497, Cr.P.C. This power is
quite independent of section 498, Cr.P.C. as clearly held by the Supreme Court in Muhammad
Ayub v. Muhammad Yaqub (PLD 1966 SC 1003). The .following observations of Cornelius,
C.J. at pages 1015 and 1016 supporting the majority view may be reproduced with advantage:--

"I have to add that I am unable to accept, speaking with due respect, the reason advanced by my
learned brother, Muhammad Yaqub Ali, J., for coming to the contrary conclusion, viz., that the
expression ` a Court' in section 497, Cr.P.C. has reference to Courts other than the High Court or
a Court of Session. There are no words in section 497, Cr.P.C. or elsewhere in the Code which
even by implication could have the effect restricting the full meaning of the words `a Court' used
in that section."

Had the main burden of section 10 been with regard to bail during trial, section 497, Cr.P.C.,
must have also been excluded in order to deprive the High Court of that power. That being not
the case, the power of the High Court to grant bail under section 497, Cr.P.C. would stand put, in
any case."

(ii) Muhammad Yaqub Ali v. The State PLD 1985 Lahore 48;
in which a Division Bench of the Lahore High Court comprising Ghulam Mujaddid Mirza and
Qurban Sadiq Ikram, JJ. while construing section 10 of the Ordinance, held that the power of the
High Court to grant bail under section 497, Cr.P.C. in a pending case has not been taken away by
any provision of the Ordinance and that the High Court, being an appellate Court, would have
jurisdiction in all incidental and ancillary matters during the pendency of trial before Special
Court. The petitioner was admitted to bail.

(iii) Abdul Majid v. The Judge, Special Court (Offences in Banks), Lahore and another 1985
PCr.LJ 890;

In the above case, a Division Bench of the Lahore High Court has held that the effect of the
omission not to mention section 497 in section 10 of the Ordinance was that section 497, Cr.P.C.
was applicable to cases pending before the Special Court with full force. It was also held that the
Special Court having the power of the Court of Session was entitled to grant bail before arrest
under section 498, Cr.P.C.

(iv) Muhammad Moosa v. The State 1986 PCr.LJ 578;

in which a Division Bench of the Sindh High Court comprising Abdul Qadeer Chaudhry and
Mamoon Kazi, JJ. has held as follows:--

"The conclusion would be that in appropriate cases a Special Court has the jurisdiction to admit a
person accused of a scheduled offence to bail. Appeal against the sentence recorded by the
Special Court has to be made to the High Court within whose jurisdiction the sentence has been
passed. It would, therefore, be anomalous if the trial Court has been empowered to admit an
accused to bail why the same power cannot be exercised by the High Court during the pendency
of the case. The High Court has inherent powers under section 498 to admit a person to bail
keeping in view the merits of the case. Sections 497 and 498 have not been excluded in
subsection (6) of section 5. Section 10 of the Ordinance would attract after the conviction is
recorded. During the pendency of the trial the High Court can exercise power under section 498.
There is no specific bar of admitting an accused facing trial to bail before a Special Court as laid
down in section 10 of the Ordinance."

(v) Sajawal Sarwar v. The State 1988 PCr.LJ 1558;

In the above case, a Division Bench of the Peshawar High Court admitted the petitioner to bail
who was facing trial under the provisions of the Ordinance under section 561-A, Cr.P.C. in the
interest of justice under inherent power of the Court to avoid abuse of process of Court. The case
was adjourned a number of times at the instance of the prosecution and no delay was caused by
the accused during four years period.

(vi) Syed Zeeshan Akhtar Zaidi v. The State 1988 PCr.LJ 843;

in which a Division Bench of the Sindh High Court to which I was a Member, has held as
follows:--

"7. We are inclined to hold that the Division Bench may' not be competent to admit an appellant
to bail under section 426, Cr.P.C. but it is competent to pass an interim order during the
pendency of the appeal in a fit case on the principles enunciated in the above 2 Supreme Court
cases namely, The Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki
PLD 1971 SC 242 and the case of Sindh Employees' Social Security Institution and another v.
Adamjee Cotton Mills Ltd. PLD 1975 SC 32.

However, we are also of the view that in view of the language employed in subsection (1) of
section 10 of the Ordinance, the interim order cannot be passed either for suspension of the
sentence or for grant of an interim bail as a matter of course but a very exceptional case is to be
made out. We may point out that the cases under the Ordinance cannot be equated with the cases
under the Pakistan Penal Code for bail matter. The object of the Ordinance seems to be to
eliminate the commission of fraud in respect of the Banks' money, which generally in fact belong
to the account-holders and, therefore, inter alia it has been provided in section 6(3) of the
Ordinance that the fine amount to be imposed alongwith the substantive sentence should not be
less than twice of the specified amount, in respect of which the offence has been committed ... ...
... ... ... ... ... . ... . .. . ....

We may also observe that a distinction is to be drawn while ,dealing with a bail application
between a case when a matter is pending before the Special Court for trial and when it is pending
in an appeal against the conviction. The above distinction is evident from the language employed
by above subsection (1) of section 10 of the Ordinance. We may also point out that even in
bailable offences after conviction a convict cannot claim bail as of right during the pendency of
the appeal. In this behalf, reference may be made to the case of Abdul Karim and others v. The
State and another reported in 1969 SCMR 312, in which Hamoodur Rehman, CJ. sitting with
M.R.Khan, J., while declining leave against the order of the erstwhile High Court of West
Pakistan, Lahore refusing to grant 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 discretion to the High Court to grant or refuse bail -although this discretion must, like all
other discretions, to be exercised upon sound judicial principles."

(vii) Nifasat Ali Khan v. The State PLI) 1989 Karachi 198;

In the above case, a Division Bench of the Sindh High Court comprising Saijad Ali Shah and
Qaiser Ahmed Hamidi, JJ., while dismissing an application of a surety filed under section 561-A,
Cr.P.C. in respect of enforcement of bail bond furnished by the petitioner before the Special
Court under the Ordinance, has observed that all other powers than which were excluded under
section 10 of the Ordinance of the High Court during hearing of appeal were intact including
power under section 561-A, Cr.P.C. which was inherent jurisdiction of the High Court.

18. The judgment of this Court in the case of Ch. Zahur Ilahi, M.N.A. v. The State (supra) needs
a detailed examination as it has direct bearing on the controversy in issue. In the above case, the
facts were that the petitioner was a Member of the National Assembly and also a Member of the
Opposition Party. He was arrested on 6-2-1976 by the Punjab Police in connection with the
murder of Ch. Muhammad Anwar Samman. He was admitted to bail by this Court on 12-2-1976
but before the above order was implemented, he was arrested by the Karachi Police on
13-2-1976 in a case registered against him earlier under section 16 of the West Pakistan
Maintenance of Public Order Ordinance XXXI of 1960. lie was taken to Karachi to appear
before a local Magistrate. It seems that on 23-2-1976 an Additional Sessions Judge, Karachi,
granted him bail but he was not released by the Sub-Divisional Magistrate as in the meantime
two more cases had been registered against him on 14-2-1976 under Rule 42 (6)(e) read with
Rule 49 of the Defence of Pakistan Rules, 1979, hereinafter referred to as the Rules.

On 11-3-1976 he filed an application in the erstwhile High Court of Sindh and Balochistan for
release on bail but a learned Judge rejected the same summarily on 17-3-1976 on the ground that
by virtue of section 13 of the Defence of Pakistan Ordinance XXX of 1971, hereinafter referred
to as Ordinance XXX, he had no jurisdiction to grant bail. Reliance was placed on an earlier
judgment of this Court. In the other case under Rules 42 and 49 of the Rules, Ch. Zahur-Ilahi
first applied for bail before arrest to the Tribunal, which application was rejected by it on
10-3-1976. Thereafter he applied for bail in the High Court on 11-3-1976, but this application
was also dismissed by the learned Judge alongwith the aforesaid application on 17-3-1976 with
the observation that the petitioner should apply to the Special Court for bail as the earlier
application was for bail before arrest.

In the above background, the matter came up for hearing before this Court. The main question
before this Court was, whether the jurisdiction of the High Court was barred in view of section
13 of Ordinance XXX, which reads as follows:--

"13. Appeals from sentences imposed by Special Tribunals etc.--(1) A person sentenced by a
Special Tribunal--

(a) to death or transportation for life, or

(b) to imprisonment for a term extending to ten years under section 6 of this Ordinance or under
subsection (4) of section 5 of the Official Secrets Act, 1923 (XIX of 1923), as amended by
section 7 of this Ordinance 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, there shall be no appeal from any order or
sentence of a Special Tribunal, and no Court shall have authority to revise such order or
sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491
of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special
Tribunal.

(2) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of
sentences passed by a Special Tribunal, so however, that the powers exercisable by the
Provincial, Government under that Chapter, shall be exercised by the Central Government:'

Muhammad Yaqub Ali, C.J. after tracing the legislative history by pointing out that Ordinance
XXX was a continuation of the earlier Laws on the subject of Defence viz. Defence of India
Act-IV of 1915, The Defence of India Act XXXV of 1938, and The Defence of Pakistan
Ordinance XXIII of 1965, and after 'analysing section 13 of Ordinance XXX and other
provisions thereof and the relevant case-law, concluded as follows:--
"The above analysis of the, Defence Laws, the dictum in the decided cases, the plain meanings of
the words used in section 13(1)(b) of Ordinance XXX of 1971, the historical background and the
weight of authority incline me to the view that once a Special Tribunal has taken cognizance of a
case, the jurisdiction of ordinary Courts including High Courts to call in question any order or
sentence passed by the Tribunal onto exercise any jurisdiction in respect of its proceedings is
completely taken away. On this interpretation the High Court could not have granted bail to the
petitioner under sections 497 and 498 of the Code."

Whereas Salahuddin Ahmad, J. took a contrary view and held that since in clause (b) -of
subsection (1) of section 13, sections 498 and 561-A, Cr.P.C. were not mentioned, the same were
available to the High Court and, therefore, the jurisdiction of the High Court was not barred. He,
while 'construing the expression "no Court shall have jurisdiction of any kind in respect of any
proceedings of a Special Tribunal," held as follows:-

"It is appropriate at this stage to dispose of the argument that the words no Court shall ... . ...have
any jurisdiction of any kind in respect of any proceedings of a Special Tribunal' are wide enough
to exclude any jurisdiction of the High Court of any kind in respect of a case exclusively triable
by a Special Tribunal. If we assume this to be true then there was no necessity for the Legislature
to have mentioned section 491 of the Code of Criminal Procedure, for it is one of the Rules of
interpretation that no such superfluity is to be attributed to the Legislature. Furthermore, if the
Legislature mentioned section 491 of the Code of Criminal Procedure by way of abundant
caution there was no reason why it should not have mentioned sections 498 and 561-A of the
Code of Criminal Procedure also.

Again the words `no Court' cannot always be interpreted to include a superior Court or High
Court. It is now a well-established principle of interpretation of Statutes that the jurisdiction of
High Court cannot be abolished or ousted unless this is done by express words or clear
intendment."

Muhammad Akram J. concurred with Salahuddin Ahmad, J. and inter alia held that the
proceedings of a Special Tribunal was strictly confined to the proceedings at the trial proper and
it did not extend to any collateral proceedings not forming part of the trial as such before the said
Tribunal. While construing section 13 of Ordinance XXX, he held as follows:--
"…….I am further inclined to hold that under subsection (1) of section 13, the bar against appeal
or revision of "any order or sentence" of the Special Tribunal in the context is confined to any
order of conviction and sentence. In the sequence and the context, the two words must be read
together ejusdem, generis with each other. I am fortified in this conclusion which is in
conformity with my interpretation of rule 210 which too has an overridiqg effect in accordance
with the provisions contained in section 4 of the Ordinance.

It is indeed one of the recognised rules of interpretation that where a statute is capable of more
than one interpretation, the Court will adopt that construction which is least likely to constitute
an invasion of liberty of the subjects and trench upon the jurisdiction of the Courts, especially the
superior Courts of the country."

Muhammad Gul, J. also agreed with Salahuddin Ahmad, J. and he placed following construction
on subsection (1) of section 13 of Ordinance XXX:--

"Nothing in my opinion turns on the concluding portion of subsection (1) of section 13 of the
1971 Ordinance, beginning with the words `no Court shall have any authority…………….'. The
learned Advocate-General relying upon the apparently all pervasive phraseology used, argued
that the prohibition was comprehensive enough to include an order by the Special Tribunal
refusing bail. The provision when read as a whole, makes it clear that prohibition is directed
particularly against an appeal, a revision, transfer of a case and an order under section 491,
Cr.P.C. After this enumeration follows the general prohibition "in respect of any proceeding of a
Special Tribunal". To the interpretation of such a provision, the ejusdem generis rule applies. See
Maxwell, 1969 Edn., p.397 where it is observed:--

" .... ... .... .., .... ... ... .... .... .... ... ... ... ...according to a well-established rule in the construction of
statutes, general terms following particular ones apply only to such persons or things as are
ejusdem generis with those comprehended in the language of the Legislature. In other words, the
general expression is to be read as comprehending only things of the same kind as that
designated by the preceding particular expressions, unless there is something to show that a
wider sense was intended, as where there is a provision specially excepting certain classes
clearly not within the suggested genus.

There is no reason why the instant cases be made an exception to the above rule of interpretation.
.
On the above analysis I am perfectly clear in my mind that in a proper case, a High Court has the
jurisdiction under section 498, Cr.P.C. to allow bail to a person accused of a contravention of any
rule of Defence of Pakistan Rules albeit the Special Court in seizin of the case, has refused bail:'

Muhammad Afzal Cheema, J. also agreed with the conclusion of Salahuddin Ahmad, J. that Ch.
Zahur Ilahi was entitled to bail but according to him on merits on the ground of mala fides. He
did not agree to the reasoning of Muhammad Gul and Akram, JJ. as to the application of the
doctrine of ejusdem generis while construing subsection (1) of section 13 of Ordinance XXX and
held as follows:--

"I am respectfully of the view that it would be difficult to assail such an absolute ouster of the
High Court's jurisdiction on the principle of ejusdem generis as invoked by my learned brothers
which would be applicable only fn cases where the things particularised in the preceding part
have common characteristics constituting species of the same genus and are followed by a
general word designated to guard against accidental omissions. In such cases the general words
would be restricted to things of the same nature as those which have already been mentioned. On
the other hand in the instant case it may be submitted with respect that appeal, revision, transfer
and directions in the nature of habeas corpus as enumerated in the preceding portion are matters
distinctly different from each other and are separately compartmentalised under different
chapters of the Cr. P.C. Chapter XXXI deals with appeals, Chapter XXXII deals with references
and revisions, Chapter XXXVII deals with habeas corpus and Chapter XLIV deals with transfer
of cases. These are all matters germane to criminal prosecution being relatable to proceedings
during trial and after conviction but cannot be reasonably described as being species of a
common genus and therefore the sweeping clause by which they are followed cannot be
reasonably restricted to things of the same nature as those already mentioned, there being no
community of nature as such:"

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 seems to be in line with the reasoning of
Salahuddin Ahmad, 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 Ahmad, 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 consonance 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 preserve such tights;

(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 implied that the ordinary incidents of the procedure of that Court are to attach to it as 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 5,46, the case of Secretary of State for
India v. Chellikani Rama Rao and others AIR 1916 PC 21, the case of Mating Ba Thaw v. Ma
Pin 1961 IA 158, the case of Hussain Bakhsh v. Settlement Commissioner and others PLD 1970
SC 1 and the case of In re: Suo Motu Shariat Review Petition No.l-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
not 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 Ahmad, 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 (supra) 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
mentionec 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 to 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.

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 Court/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 1,968 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 grounds 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), it 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 ease 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 Miiza Jawad Beg's case, Ubedullah's case, Muhammad Yaqub
Ali's case and the case of Syed Zeeshan Akhtar Zaidi (supra). The above exclusion seems to have
rationale 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 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 discretion to the High Court to grant or refuse bail
although this 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 exhaustive statement of the powers of a High Court in India
to grant bail and excludes the existence of any additional inherent power in a High Court relating
to the subject of bail and that section 561-A of the Code confers no such power.

The above judgment of the Privy Council was followed by this Court in the case of Muhammad
Samiullah Khan and another v. The State PLD 1963 SC 237, in which it has been held that
jurisdiction under section 561-A, Cr.P.C. is not available where other express remedy is provided
by the Code.

In the case of. Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317, this
Court reiterated the above legal proposition by holding that jurisdiction under section 561-A,
Cr.P.C. is not an alternative or additional jurisdiction and it is not to be used to divert ordinary
course of criminal procedure. The same view was taken in a subsequent case, namely, in the case
of Khawaja Fazal Karim v. The State and others 1986 SCMR 483. It is, therefore, evident that
section 561-A, Cr.P.C. cannot be invoked in aid where there are express provisions dealing with
a particular subject, for example, section 426, Cr.P.C. empowers an appellate Court to suspend
the sentence or to admit a convict to bail during the pendency of a criminal appeal against
conviction. In presence of above express provision in the Code, section 561-A cannot be pressed
into service nor the above provision can be used to defeat the express intention of the
Legislature, for example, in the present case subsection (1) of section 7 of the Act excludes the
application of section 426, Cr.P.C. during the pendency of an appeal under the Act before the
High Court. If the High Court was to invoke section 561-A, Cr.P.C. because of the above
exclusion of section 426, Cr.P.C., it may amount to defeating the legislative intent. However, it
may be pointed out that the exclusion of the application of section 426, Cr.P.C. by virtue of
section 7(1) of the Act during the pendency of an appeal of a convict before the High Court is
founded on the assumption that the appeal would be disposed of within three months as provided
in subsection (2) of above section 7 of the Act, but in case an appeal of a convict remains
pending for a number of years either on account of delaying tactics on the part of the Prosecuting
Agency or because of the heavy work load of the Court, would it be fair and just to deny him bail
on the ground of delay. In my view, since it has been held by this Court in more than one cases
already referred to hereinabove in para. 21 that the delay in prosecution of a criminal case
amounts to abuse of process of Court/law warranting grant of bail, the High Court in a case of
above nature may press into service section 561-A, Cr.P.C., but not as a matter of course or as a
substitute to section 426, Cr.P.C. The delay should be of the nature which may be repulsive and
unconscionable.

Similarly if a convict during the pendency of his appeal before the High Court develops an
ailment of the nature that keeping him in detention may result into his death and that he cannot
be provided requisite treatment under detention in the Government and/or other hospitals, the
High Court may in such a case invoke section 561-A, Cr.P.C. and may release him on bail, as
such an order will be within the ambit of the expression "or otherwise to secure the ends of
justice", used in above section 561-A, Cr.P.C.

We should not be oblivious of the fact that our 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 grund norms of human rights. The view which I am inclined to take seems
to be in accord with the above approach.

24. On merits, it was urged by Mr. Aftab Akhund, learned Advocate General Sindh that the
ailments of the respondents were not of the nature which warranted grant of bail to them by the
High Court. In this regard, it may be pertinent to observe that this Court, has not granted leave to
consider the above factual aspect as leave was granted to consider the above legal question as to
the applicability of the ratio of the Allied Bank case. I am, therefore, not inclined to go into the
above question. However, I may observe that the Court while admitting an accused person to bail
on the medical ground in a case in which bail cannot be granted on merits because of the
statutory prohibition is required to examine the question, whether the nature of the ailment is
such which warrants release of the accused person on bail and for what period. The appellant
should have brought material before the High Court to negate the medical expert's views relied
upon by the respondents.

25. I may observe that since there was difference of opinion between the two learned Judges of
the Division Bench on the question, whether respondent Qaim Ali Shah was entitled to bail on
merits, it would have been proper for the learned Judges to have referred the matter to the
learned Chief Justice for referring the case to a third Judge instead of granting bail on the
medical ground, the availability of which was debatable at that time.

26. The upshot of the above discussion is that since I have held that provisos 1 and 3 to
subsection (1) of section 497, Cr.P.C. are available to the Special Court and the High Court in a
case in which an accused person may be facing trial under the Act before the Special Court, the
view of this Court to the above extent in the Allied Bank case is required to be modified. The
orders appealed against are in consonance with the above view and, therefore, the above appeals
are liable to be dismissed and, thus they are dismissed.

Before parting with the above discussion, I would like to record my gratitude to Messrs
M.B.Zaman and Raja Muhammad Anwar, learned senior counsel who appeared as Amicus
Curiae and to Mr Aftab Akhund, learned Advocate-General Sindh and Mr. Abdul Mujeeb
Pirzada for valuable assistance rendered by them.

(Sd.) AJMAL MIAN, J.

I agree

(Sd.) SAJJAD ALI SHAH, J.

NASIM HASAN SHAH, J.--I have had the pleasure and privilege of perusing the well prepared
judgments of my learned brethren Shafiur Rahman, J. and Ajmal Mian, J. (with whom Sajjad Ali
Shah, J. has agreed) and Rustam S. Sidhwa, J. who all are unanimous in holding that these
appeals merit dismissal. I am also of the same opinion but in coming to this conclusion I am
inclined to agree with the reasoning given by my learned brother Shafiur Rahman, J. in his
separate opinion.

The result is that these appeals shall stand dismissed.

SHAFIUR RAHMAN, J.--I had the benefit of going through the exhaustive and illuminating
opinions recorded by my two-learned brethren. As the specific provisions of the law on the
subject and the precedent law attracted to the question under examination have all been
reproduced in the two opinions I will restrain myself from repeating the same unless absolutely
necessary.

My conclusions are that none of the remedial powers enjoyed by the High Courts under the
Criminal Procedure Code are curtailed or superseded by the Suppression of Terrorist Activities
(Special Courts). Act, 1975 (hereinafter referred to as the Act). Th6 only modification made in
the exercise of its powers is that it has been made exerciseable by a Bench of not less than two
Judges, with all its consequences. My reasons for this view areas hereunder:

Firstly, all the statutory provisions have to be interpreted harmoniously and consistently with the
Constitutional provisions, the paramount law, already occupying the field. The Constitution by
its Article 203 entrusts to the High Court the power of superintendence and control over all
Courts subordinate to it. If in section 7 of the Act in the expression "no Court" we include the
High Court then it can't "have any jurisdiction of any kind in respect of any proceedings of a
Special Court" except that appeals against sentence and acquittal will be lodged with it. Such a
subversive interpretation cannot be countenanced, not even on express language of the statute as
pointed out in Mst. Ameer Khatoon v. Faiz Muhammad PLD 1991 SC 787 at page 797.

Section 4 of the Act started with the provision "Notwithstanding anything contained in the Code,
the scheduled offences shall be triable exclusively by a Special Court. In 1978 (Ordinance XX of
1978) the first proviso was added to the effect that "Provided this section shall not be construed
to require the transfer to a Special Court of any case which may be pending in any Court
immediately before the constitution of the Court". In 1984 (Ordinance XI of 1984). Second
proviso was added to the effect "Provided further that the Government constituting a Special
Court may, by notification in the official Gazette, direct that the Special Court shall have
jurisdiction to try only such persons who have committed scheduled offences as may be specified
in the notification". In the context of these provisions, there will be two different types of trials;
one under the ordinary law, the other under the special law, classification being based not on the
nature of offence committed, not even on the basis of the date on which it was committed, but by
reference to the date when the challan was submitted in Court. In one, the High Court I will be
possessed of all the remedial powers under the Code of Criminal Procedure. In the other not so.
Such a discrimination will appear to be irrational.

Secondly, the well entrenched principle of interpretation of statutes concerning powers,

procedures and jurisdiction is that when a question is stated to be referred to an established Court
without more, it imports that the ordinary incidents of the procedure of that Court are to attach
and also that general right to appeal from its decisions likewise attaches (National Telephone
Company Ltd. v. Postmaster General (1913 AC 546) approved and applied in Hussain Bakhsh v.
Settlement Commissioner PLD 1970 SC 1. Section 7 of the Act provides a venue of appeal to the
sentenced and to the State without enumerating even by reference any of the powers of such an
Appellate Court. Two procedural modifications are, however, specified namely that the appeal
shall be heard and decided by a Bench of not less than two Judges of the High Court and it has to
be disposed of within three months of its institution. Except for these modifications, the powers
of the High Court by their non-specification have been left intact.

There are a number of reasons why the expression "no Court" in section 7 excludes the High
Court as the Appellate Court with two modifications just indicated. The first and the most
powerful one has already been indicated by reference to Article 203 of the Constitution. The
second is that the appellate powers always include power to alter and reduce the sentence and
that too is revision of the sentence. It is impossible to imagine that though appeal against
sentence is competent but its revision in appeal is barred. Thirdly, having conceded to the High
Court Appeal Bench all the appellate and other powers, normally available to the High Court, the
exclusion of powers under sections 426, 491 and 498 are referable to the High Court functioning
with less than two Judges. In other words, a Single Judge cannot exercise these powers.

Thirdly, the Act has the sole object of providing speedy trial through Special Courts. It heavily
draws on principle of incorporation of statutes or provisions by reference. For example,
subsection (1) of section 5-A allows the Special Court to follow the procedure prescribed by the
Code for trial of cases by Magistrates where no specific provision has been made. Section 6
confers on the Special Court all the powers conferred by the Code on a Court of Session
exercising original jurisdiction. In matters of contempt, the Special Court has the same powers as
High Court. As pointed out by my learned brother (Rustam S. Sidhwa, J'.) the powers of the
Special Court and the High Court are not specified. Only the prohibitions find a place and that
too in generality. With such interlacing of powers and procedures, and massive incorporation by
reference it is only necessary and proper that a harmonious and orderly Court procedure for
administering criminal justice should emerge with no inroad on powers of superior Courts unless
unavoidably following from the text.

I agree that the appeals be dismissed.

RUSTAM S. SIDHWA, J.--The short question in these appeals is whether the bails granted to
Syed Qaim Ali Shah and Shah Nawaz Khan Junejo respondents on medical grounds by the
learned Judges of the High Court in respect of scheduled offences under the Suppression of
Terrorist Activities (Special Courts) Act, 1975, can be sustained.

2. My learned brother Ajmal Mian, J. has already given the facts of the case, which need not be
repeated.

3. Before dealing with the arguments it is necessary to set down certain sections of the Act,
which are relevant:--

2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,--

(a) "Code" Means the Code of Criminal Procedure, 1898 (Act V of 1898);

(b) "Scheduled offence" means an offence specified in the Schedule; and

(c) "Special Court" means a Special Court constituted under section 3.

3. Constitution of Special Courts.-- (1) The Federal Government may, by notification in the
official Gazette, constitute, for the whole or any part of Pakistan, Special Courts consisting of a
person who--

(a) has been or is qualified for appointment as Judge of a High Court; or

(b) has, for a total period of not less than three years, exercised, whether continuously or not, the
powers under the Code, of a Sessions Judge or an Additional Sessions Judge.
(2) If so directed by the Federal Government, the Provincial Government shall constitute a
Special Court or Courts each consisting of a person who is qualified under subsection (1) to be
appointed as Special Court.

(3) A Special Court shall sit at such place as the Government constituting it may, by notification
in the official Gazette, specify in this behalf.

4. Jurisdiction of Special Court.--(1) Notwithstanding anything contained in the Code, the

scheduled offences shall be triable exclusively by a Special Court:

Provided that this section shall not be construed to require the transfer to a Special Court of any
case which may be pending in any Court immediately before the constitution of the Court:

Provided further that the Government constituting a Special Court may, by notification in the
official Gazette, direct that the Special Court shall have jurisdiction to try only such persons who
have committed scheduled offences as may be specified in the notification.

(2) If, in the course of a trial before the Special Court, the Court is of opinion that any of the
offences which the accused is alleged to have committed is not a scheduled offence, the Court
shall record 'such opinion and try the accused only for such offence, if any, as is a scheduled
offence.

5. Taking of cognizance.--(1) The officer-in-charge of a police station shall complete the

investigation and forward directly to the Special Court a report under section 173 of the Code
within fourteen days in respect of a case triable by such Court:

Provided that the Special Court may extend the time within which such report is to be forwarded
in a case where good reasons are shown for not doing so within the time specified in this
subsection.
(2) Any default on the part of an officer-in-charge of a police station, an investigating officer or
any other person required by law to perform any functions in connection with the investigation,
which results in, or has the effect of delaying the investigation or the submission of the report
under subsection (1), shall be deemed to be a wilful disobedience of the order of the Special
Court and dealt "with under the law accordingly.

(3) The Special Court may directly take cognizance of a case triable by such Court without the
case being sent to it under section 190 of the Code.

5-A. Procedure of Special Court.--(1) On taking cognizance of case the Special Court shall
proceed with the trial from day to day and shall decide the case speedily.

(2) A Special Court shall not adjourn any trial for any purpose, unless such adjournment is in its
opinion, necessary in the interest of justice and no adjournment shall be granted for more than
two days.

(3)....................................

(4)....................................

(5)....................................

(6)....................................

(7)....................................

(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.

(9) A Special Court shall in all matters with respect to I which no procedure has been prescribed
by this Act, follow the procedure prescribed by the Code for the trial of cases by Magistrates.

6. Powers of Special Court.--(1) A Special Court may pass any sentence authorised by law, and
shall have all the powers conferred by the Code on a Court of Session exercising original
jurisdiction.

(2) A Special Court shall have the same power as the High Court has to punish any person
who:--

(a) abuses, interferes with or obstructs the process of the Court in any way or disobey any order
of the Court,

(b) scandalises the Court or otherwise does anything which tends to bring the Court or the person
constituting the Court in relation to his office into hatred, ridicule or contempt;

(c) does anything which tends to prejudice the determination of a matter pending before the
Court; or

(d) does any other thing which, by any other law, constitutes contempt of Court:

Provided that fair comment made in good faith and' in the public interest on the working of the
Court or any of its final decisions after the expiry of the period of limitation for appeal shall not
constitute contempt of Court.
7. Appeals from, sentences imposed by Special Courts.--(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, 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 provision 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 to
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 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.

(3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of
sentences passed by a Special Court.

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. Some of the provisions of the Suppression of Terrorist Activities (Special Courts) Act, XV of
1975 (hereinafter to be referred to as "the Act") are almost similar to those contained in the
Offences in Respect of Banks (Special Courts) Ordinance IX of 1984 (hereinafter to be referred
to as "the Ordinance"). In this respect sections 5(6) & (7), 10 (1), (2) & (3) and 12 of the Act are
the same as sections 5(6) &(8) and 7 (1), (2,) & (3) of the Ordinance. However, in 1976, the right
to file appeal against acquittal was provided in section 7 of the Act by Act III of 1976. Likewise,
section 6 of the Act is almost similar to section 6(1) of the Ordinance, though the latter has some
addition to it. The object of mentioning this is that cases decided under the Ordinance have
relevance to the matters calling for determination under the Act.

5. In Allied Bank of Pakistan v. Khalid Farooq (1991 SCMR 599) this Court had the opportunity
of dealing with the question of bail of an accused at the trial stage and the suspension of sentence
of a convict after his conviction at the appeal stage. In respect of the former this Court held that
section 5 (6) of the Ordinance did not completely oust the applicability of section 497 of the
Code of Criminal Procedure, 1898 (hereinafter to be referred to as "the Code") in respect of bails
and though the rule of subsection (1) of section 497 of the Code with a slight change and the
exception to the said rule as contained in the second proviso of the same subsection had been
introduced in subsection (6) of section 5 of the Ordinance, which was couched in negative
language, no express or implied ouster of the remaining provisions of section 497 of the Code
could be spelt out from subsection (6) of section 5 of the Ordinance. However, on the question
whether the provisions of the first, third and fourth provisos to subsection (1) of section 497 of
the Code could be held to be available to the Special Court or the High Court, it was held that the
first and the third provisos to subsection (1) of section 497 of the Code, which created exceptions
to the rule contained in that subsection, could not apply, but the position of the third proviso to
the said subsection was somewhat nebulous, because being founded in public policy, the
possibility of its application through section 561-A of the Code to prevent abuse of the process of
the Court or otherwise to secure the ends of justice, could not be totally excluded, and the
provisions of the fourth proviso to subsection (1) of section 497 of the Code being itself an
exception to the rule contained in the third proviso, did not create an exception to the principle
laid down in subsection (6) of section 5 of the Ordinance and `would therefore be available to the
Court, if the third proviso of the Code was treated as applicable. Therefore, whilst the provisions
of the first and third provisos to subsection (1) of section 497 of the Code were held as not
available to the Special Court or the High Court, subsections (2) .to (5) of section 497 of the
Code were held as not affecting the rule stated in subsection (6) of section 5 of the Ordinance
and were treated as applicable and available to the Special Court and the High Court. As regards
the powers of the Special Court and the High Court to grant pre-arrest bail under section 498 of
the Code, it was held that though the power of the High Court stood excluded by section 10(1) of
the Ordinance, the power of the Special Court was not so excluded by the said provision and
stood intact by sections 5(6) and 6(1) of the Ordinance. As regards the power of the High Court
to suspend a sentence pending the appeal of a convict, this Court held that the power stood
excluded by virtue of section 10(1) of the Ordinance, which clearly stated that no Court would
have any power under section 426 of the Code.

6. The only question arising in these appeals is whether the benefit of the first proviso to
subsection (1) of section 497 of the Code can be availed by the Special Court and the High Court
in respect of cases under the Act. The arguments advanced by the learned counsel for the parties
and the learned Advocates who appeared as amicus curiae have already been noted in the
judgment of Ajmal Mian, J., and I need not repeat the same. The question is whether the view
taken in the case of Allied Bank of Pakistan (supra) in this limited context requires to be
reviewed.

7. In the case of Allied Bank of Pakistan (supra) this Court clearly held that the words "or by any
other Court" appearing in subsection (6) of section 5 of the Ordinance obviously implied that the
power of granting bail was available with the other Courts, such as the High Court, and
therefore, the High Court was not excluded; that if the law-maker had intended to grant
jurisdiction to a Special Court to allow bail and. had intended to excluded the jurisdiction of
other Courts, he would have clearly mentioned that no Court, including the High Court and the
Supreme Court, would have jurisdiction to allow bail in respect of the scheduled offences; that
section 497 of the Code which was the basic section empowering the High Court to grant bail
had not been excluded by section 10 of the Ordinance, which fortified the view that the
law-maker did not intend to restrict the jurisdiction to grant bail with the Special Court alone;
and that subsection (7) of section 4 and subsection (6) of section 5 of the Ordinance, were not
reconcilable with the complete ouster of anything and everything contained in the Code, which
clearly affirmed the view that the intention of the law-maker was not to restrict the jurisdiction of
bail with the Special Court alone. It was held that the inference therefore was clear that section
12 of the Ordinance protected the provisions of the Ordinance to the extent that they overrode or
came in conflict with the provisions of the Code or any other law, but where they did not, the
provisions of the Code could in an appropriate case prevail.

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 parallel with sections 5(6) and 10 of the
Ordinance, the view taken in Allied Bank of Pakistan (supra) would prevail here as well. It is
therefore clear that section 5-A (8) of 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 Court or the High Court,
requires reappraisal. Basically the matter !evolves 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, but which are totally different from that
advanced by the learned counsel before us.

10. The first matter to be seen is which provision of the Act permits the Special Court or the
High Court to release or admit a person to bail. There is no section in the Act relating to the grant
of bail. There are a series of sections in Chapter XXXIX of the Code dealing with bail; which
include sections 496 to 498 dealing with the grant of bail. What is contained in section 5-A (8) of
the Act is not a provision relating to the grant of bail, but a provision detailing circumstances
prohibiting the grant of bail.

11. Section 7 of the Act does not exclude section 497 of the Code. On the basis of the rule laid
down in the Allied Bank's case (supra), section 497 of the Code is therefore, applicable to the
Act. If this be, so, section 5-A (8) of the Act, can only act as a partial limitation to the rule laid
down in section 497 of the Code.
12. Now what does subsection (1) of section 497 of the Code say? It says that when any person
accused of any non-bailable offence is arrested or detained without warrant by an
officer-in-charge of a police station, or appears or is brought before a Court, he may be released
on bail, but he shall not be so released if there appear reasonable grounds for believing that he
has been guilty of an offence punishable with death or imprisonment for life or imprisonment for
ten years: Provided that ... ... ..(and here follow the four provisos). Now what section 5-A(8) of
the Act attempts to do is to provide a substitute to a part of the rule stated in subsection (1) of
section 497 of the Code. Subsection (1) of section 497 of the Code deals with non-bailable
offences, whereas there is no concept of a bailable or non-bailable offence in respect of bail in
the Act. May be the difference still prevails in the realm of investigation. What the Act deals
with, regarding bails, is scheduled offences. Subsection (1) of section 497 of the Code deals with
a bar to bail if there appear reasonable grounds to believe that the accused is guilty of an offence
punishable with death or imprisonment for life or imprisonment for ten years, whereas section
5-A (8) of the Act deals with a bar to bail if there appear reasonable grounds to believe that the
accused is guilty of a scheduled offence. The heinousness or severity of the punishment is not
relevant to the bar. SInCe subsection (1) of section 497 of the Code specifically deals with the
grant of bail and subsection (8) of section 5-A of the Act deals with the bar or limitation to the
grant thereof, the only inference that one can derive is that the latter acts as a bar or limitation to
the rule stated in the former, or to put it in other words, the latter provision, to the extent to
which it conflicts with the former, displaces the former, leaving everything else intact.
Subsection (1) of section 497 of the Code can also be read in another manner that if in a non-
cognizable case these appear reasonable grounds for believing that the accused, not being a
person under the age of sixteen years or a woman or a sick or infirm person, or one who has been
detained for a continuous period exceeding one year in respect of any offence not punishable
with death and whose trial for such offence has not concluded, or one who has been detained for
a continuous period exceeding two years in respect of any offence punishable with death and
whose trial for such offence has not concluded, except where the delay in the trial of the accused
has been occasioned by an act or omission of the accused or any other person acting on his
behalf, has been guilty of an offence punishable with death or imprisonment for life, or
imprisonment for ten years, shall not be so released on bail. Subsection (8) of section 5-A of the
Act, to the extent to which it conflicts with the former, would displace the former, leaving
everything else intact. 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 the
severity of the rule stated in subsection (1) of section 497 of the Code and are based on grounds
of humaneness, compassion and social justice, to prevent the abuse of the process of the Court
and to prevent undue oppression 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 a somewhat
conflicting or defective drafting, where such a clear intention cannot be spelt out, the benefit of
the provisos cannot be allowed to be dropped.
13. In order to know what a statute does not mean, Pollock C.B., in Attorney-General v. Sillem
(1864, 2 H. & C. 431 @. 515) stated: " In order to know what a statute does mean, it is one
important step to know what it does not mean; and if it be quite clear that there is something
which it does not mean, then that which is suggested or supposed to be what it does mean must
be in harmony and consistent with what it is clear that it does not mean. What it forbids must be
consistent with what it permits." Section 497 of the Code is not excluded by section 7 of the Act.
It applies fully. Subsection (1) of section 497 of the Code relates to the grant of bail and
limitations to its grant. Subsection (8) of section 5-A of the Act relates to conditions which bar
the grant of bail. Section 497 of the Code is a composite .section dealing with a host of matters
including the grant of bail and conditions barring such a grant and the cancellation of bail.
Subsection (8) of section 5-A of the Act is limited in its scope and only deals with conditions
barring the grant of bail. This subsection which is limited in its scope ex facie cannot displace
section 497 or subsection (1) thereof, which have a larger scope. The view that subsection (8) of
section 5-A of the Act displaces the provisos under subsection (1) of section 497 of the Code,
would not be in harmony with the intent. Subsection (8) of section 5-A of the Act only displaces
that part of subsection (1) of section 497 of the Code which is in conflict with it. The provisos
are therefore not eliminated. They continue to exist because of any lack of conflict. What
subsection (8) of section 5-A of the Act forbids, i.e. not to permit the grant of bail to a person
where reasonable grounds exist that he is guilty of a scheduled offence, is in 'harmony with what
it permits under sections 7(1) and 10 i.e. to treat the retraining provisions of subsection (1) of
section 497 of the Code which have not been displaced, as applicable. It must not be forgotten
that subsection (2) of section 497, also permits the grant of bail in cases where there are
reasonable grounds to believe that the accused is guilty of a non-bailable offence, if it appears to
the Court that there are sufficient grounds for further inquiry into his guilt. Subsection (8) of
section 5-A of the Act cannot displace this ri t in respect of the scheduled offences.

14. Looking at the case differently, one notes that the Special Court has to decide the case,
speedily under subsection (1) of section 5-A of the Act and not to adjourn the case, unless
necessary in the interest of justice and that too for not more than two days, under subsection (2)
of the same section. In this background, delay in the disposal of the case by the State would be a
clear abuse of the process of the Court, entitling the accused to seek bail under the third proviso
to subsection (1) of section 497 of the Code, if not under section 561-A thereof. How could tire
third proviso be avoided, is difficult to understand. Thus, the view that subsection (8) of section
5-A of the Act does not permit the view that the provisos should be treated as deleted, is in
harmony with the view that section 7 of the Act treats section 497 of the Code as fully
applicable, to the extent to which it is not displaced, thus permitting the provisos to operate and
remain effective.

15. For the foregoing reasons, both the Special Court and the High Court can grant bail to an
accused being tried for a scheduled offence on medical grounds.
16. The learned Judges of the High Court allowed bail to the respondents ova medical grounds.
The learned Advocate-General, Sindh, in his arguments, did not question the merits of these
orders. He only challenged the legality o€ these orders, on the basis of the rule laid down by this
Court in the Allied Bank's case (supra). The learned Judges having exercised their discretion in
the matter, I would not like to interfere. In these circumstances, there is no merit in these appeals,
which are dismissed.

M.BA./S-699/S Appeals dismissed.