10/5/2020 1996 M L D 934

1996 M L D 934

[Peshawar]

Before Jalaluddin Akbarji, J

SHAH JAHAN‑‑‑Petitioner

Versus

Dr. ADNAN and another‑‑‑Respondents

Criminal Miscellaneous No. 164 of 1995, decided on 11th January 1996.

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

‑‑‑‑S. 497‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975),

S.5‑A(8)‑‑‑Bail, grant of‑‑‑Confessional statement of accused revealed that accused
was a hired assassin along with other assassins for the murder of deceased‑‑‑Purpose of
arrest of a person in an offence was to secure his arrest at the time of trial and ensure
that in case found guilty, the accused would be available to receive the
sentence‑‑‑Confessional statement of accused had revealed that conspiracy to murder
deceased was hatched in the tribal area wherein accused had fully participated‑‑‑Bail
application of accused was dismissed in view of the fact that there was likelihood of
abscondence of the accused like other proclaimed offenders in the case residing in
tribal area, in case accused was allowed bail on any ground whatsoever.

Zahid Hussain Shah v. The State PLD 1995 SC 49; Ghulam Sarwar v. The State 1990
SCMR 1045; Ishfaq Ahmad v. The State PLD 1990 Pesh. 156; 1994 SCMR 717;
Messrs East and West Steamship Company v. Pakistan and others PLD 1958 SC (Pak.)
41 and Chaudhry Shujat Hussain v. The State 1995 SCMR 1249 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Proviso to a section‑‑‑Its object and function stated.

Muhammad Asif Khan for Petitioner.

Respondent No.1 in person. . Abdur Rauf Gandapur for the State.

Date of hearing: 11th January 1996.

JUDGMENT

Shah Jehan, petitioner herein, is accused on trial before the learned Judge of the
Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975
(Act XV of 1975) in case F.I.R. No.576, dated 3‑10‑1991 Police Station East Cantt.
under section 302/324/34/120‑B/ 109/427, P.P.C. recorded on the report of Dr. Adnan
son of deceased General (Rtd.) Fazle Haq.

Learned counsel for the petitioner submitted that the petitioner was arrested on
8‑1‑1992 and the trial has not concluded so far. The petitioner has the legal right to be
released on bail under the 3rd proviso to subsection (1) of section 497, Criminal
Procedure Code. On merits it was contended that the confessional statement of the
petitioner is exculpatory. The judgments Zahid Hussain Shah v. The State PLD 1995
SC 49, Ghulam Sarwar v. The State 1990 SCMR 1045 and Ishfaq Ahmad v. The State
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PLD 1990 Pesh. 156 were cited and referred for reliance on his contention of the right
of the petitioner to be released on bail.

Dr. Adnan, present in Court, stated that the application may be decided in accordance
with law.

Learned counsel for the State contended that the petitioner is not entitled to the bail on
the grounds of proviso to 3rd proviso of subsection (1) of section 497, Cr.P.C. and that
the learned Special Court is governed by its own procedure of grant of bail under
section 5‑A(8) of the Suppression of Terrorist Activities Act, 1975. It was further
contended that a hired assassin is a dangerous criminal and is involved in terrorism.
The confessional statement of the petitioner is sufficient material in this respect.

The case was entrusted to Additional Sessions Judge, Peshawar on 22‑3‑1994 for trial
and the charge against the petitioner was framed on 11‑10‑1994. Evidence in the trial
was recorded from time to time and on 5‑1‑1995 on the basis of judgment reported in
1994 SCMR 717 the case was sent for trial to the Special Court under the Suppression
of Terrorist Activities Act. The learned Judge of the Special Court framed the charge
against the petitioner afresh on 19‑9‑1995 and thereafter, recorded some evidence but
as now the case file has been summoned, the trial once again is in abeyance. The
learned Judge of the Special Court is yet to conclude the trial for the offence within 2
years.

The perusal of the confessional statement of the petitioner will reveal that he is a hired
assassin along with other hired assassins for the murder of Gen. Rtd. Fazle Haq. The
words "dangerous criminal" or "involved in terrorism" mentioned disjunctively in
proviso to 3rd proviso to subsection (1) of section 497, Cr.P.C. is an exception to
section 497, Cr.P.C. The august Supreme Court of Pakistan in the judgment Messrs
East and West Steamship Company v. Pakistan and others PLD 1958 SC (Pak.) 41 the
function of proviso was interpreted as under: ‑s‑

"A proviso is to be regarded as something which excepts a particular case from a

general principle. The effect of a proviso is to except something out of the preceding
portion of the enactment or to qualify something enacted therein, which but for the
proviso would be within it.

The words of a proviso are to be construed strictly and confined to the special case
which its words enact; it would be wrong to construe those words as being
co‑extensive with those used in the purview, particularly where the effect might be of
bringing about a repeal of the purview."

The purpose of arrest of a person in an offence is to secure his attendance at the time of
trial and ensure that in case found guilty, the accused is available to receive the
sentence. Refer to para. 7 of the judgment Chaudhry Shujat Hussain v. The Statc 1995
SCMR 1249. The confessional statement of the petitioner will reveal that the
conspiracy to murder Gen. Rtd. Fazle Haq was hatched in the tribal area wherein the
petitioner fully participated. There is likelihood of abscondence of the petitioner like
other proclaimed offenders in the case residing in tribal area in case the petitioner is
allowed bail on any ground whatsoever.

This application is, therefore, dismissed.

H.B.T./1901/P Application dismissed.

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