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Criminal Bail Applications Nos. 1007 to 1011 of 1987, decided on 8th September, 1987.

‑‑‑Penal provision‑‑When two constructions of a penal provision are possible, one which favours the accused is to be preferred over the other.

‑‑‑S. 497(1)‑‑Supperession of Terrorist Activities (Special Courts) Act (XV of 1975), Ss. 5 (6) & 7‑‑Bail‑‑Medical ground can be pressed into service in terms of S. 497(1), first proviso, Cr.P.C. in cases triable by a Special Court under Act of 1975.

Criminal Bail Application No. 654 of 1987; Mirza Jawed Beg v. The State P L D 1975 Kar. 628; Ch. Zahur Ilahi, M.N.A. v. The State P L D 1977 S C 273; Abdul Majid v. The Judge, Special Court (Offences in Banks), Lahore and another, 1985 P Cr. L J 890; Muhammad Yaqub Ali v. The State P L D 1985 Lah. 48; Muhammad Moosa v. The State 1986 P Cr. L J 578; Gul Muhammad and 2 others v. The State 1987 P Cr. L J 737; Zafar Iqbal v. The Province of Sind and 2 others P L D 1973 Kar. 383 and Syed Muzaffar Hussain Shah v. The State P L D 1974 Lah. 242 ref.

Applicant in person.

A. A. Mohammadally, Addl. A.‑G and Syed Sarfraz Ahmed, Asstt. A.‑G. for the State.

‑‑By this common order, we intend to dispose of the above 5 bail applications, which have been filed on the medical ground only by the applicant, who stands trial under section 124‑A, P.P.C. and section 13 of the Prevention of Anti‑National Activities Act, 1974, hereinafter referred to as the Act of 1974, in 5 different cases before the learned Special Court of Sind, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, hereinafter referred to as the Act of 1975, for addressing various meetings at different places on different dates, allegedly criticizing the ideology of Pakistan and propagating confederal system. It is also alleged that the speeches were intended to instigate the people of this country to secession from federation and to bring the Government into hatred and contempt etc.

The learned Special Court by an order dated 30‑8‑1987 has declined the bail on the ground that in view of section 5(6) of the Act of 1975, the provisions of section 497, Cr.P.C. have been excluded. Neither in the order of the learned Special Court nor before us, the factum that the applicant is suffering from serious heart ailment has been controverted. On the contrary, the documents filed alongwith the bail applications clearly demonstrate that the applicant has been suffering from serious heart ailment which needs to be attended immediately. The only question for consideration in the above bail application is, whether this Court can grant bail on the medical ground which is one of the grounds mentioned in the first proviso to subsection (1) of section 497, Cr.P.C.

2. M/s. A.A. Mohammadally, learned Additional Advocate‑General and Syed Sarfraz Ahmed, learned Asstt. A.‑G. have placed reliance again on subsection (6) of section 5 and section 10 of the Act of 1975.

It may be mentioned that a Division Bench of this Court in Criminal Bail Application No. 654 of 1987 and 4 others connected bail applications decided on 31‑8‑1987 has repelled the above contention and has held that the provisions of section 497, Cr.P.C. are applicable in spite of the above subsection (6) of section 5 and section 10 of the Act of 1975. The reliance was placed on six reported cases of the Hon'ble Supreme Court of Pakistan and of the High Courts, namely:

(i) Mirza Jawad Beg v. The State, P L D 1975 Karachi 628, in which a Division Bench of the erstwhile High Court of Sind and Baluchistan held that in a case of Suppression of Terrorist Activities (Special Courts) Act, 1975, a Division Bench of the High Court as an appellate Court has the power in a fit case to grant interlocutory relief to release the accused on bail.

(ii) Ch. Zahur Ilahi, M.N.A. v. The State, P L D 1977 S C 273, in which the majority view was that even in a case triable by the Special Court for offences under the Defence of Pakistan Rules and Sections 124‑A and 153‑A, P.P.C., the High Court can invoke the provisions of sections 497 and 498, Cr.P.C. and can grant bail as the above provisions are supplementary.

(iii) Abdul Majid v. The Judge, Special Court (Offences in Banks), Lahore and another, 1985 P Cr. L J 890, wherein a Division Bench of the Lahore High Court while construing section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, held that the provisions of section 497, Cr.P.C. was applicable to the case pending before the Special Court and the bail can be granted to a person accused of offences mentioned in schedule under the Ordinance.

(iv) Muhammad Yaqub Ali v. The State, P L D 1985 Lahore 48. In the above case a Division Bench of Lahore High Court, comprising of Ghulam Mujaddid Mirza (as he then was) and Qurban Sadiq Ikram, JJ. reiterated the above Lahore view, namely, that section 497, Cr.P.C. can be invoked even in respect of scheduled offences triable under the aforesaid Offences in Respect of Banks (Special Courts) Ordinance, 1984.

(v) Muhammad Moosa v. The State, 1986 P Cr. L J 578. In he above case a Division Bench of this Court comprising of Abdul Qadeer Chaudhry (as he then was) and Mamoon Kazi, JJ. held in relation to the scheduled offences under the aforesaid offences in Respect of Banks. (Special Courts) Ordinance, 1984 that section 498, Cr. P. C. can be pressed into service by the High Court during the pendency of a case before the Special Court.

(vi) Gul Muhammad and 2 others v. The State 1987 P Cr. L J 737. In the above case a Division Bench of this Court comprising of Nasir Aslam Zahid and Ally Madad Shah, JJ. while dealing with a case triable under the Suppression of Terrorist Activities (Special Courts) Act, 1975 held that the benefit of provisos III and IV of section 497, Cr.P.C. was available to the accused.

The applicant has also invited our attention to the following two cases, namely, (i) Zafar Iqbal v. The Province of. Sind and 2 others, reported in P L D 1973 Kar. 383 and (ii) Syed Muzaffar Hussain Shah v. The State, reported in P L D 1974 Lah. 242, which are in line of the above cited 6 cases.

3. The view taken by the aforesaid Division Bench in the aforementioned 5 bail applications is binding on us. However, we have further examined the above aspect of the case. Mr. A.A. Mohammadally, learned A.A.‑G. has invited our attention to subsection (1) of section 7 of Act of 1975, which reads as follows:‑

"Section 7. Appeals from sentences imposed by Special Court, etc.‑‑(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from 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."

In our view, the above quoted subsection of section 7, does not reinforce the submission of the learned A.A.‑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 schedule 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, so as to respect such rights vide Maxwell on Interpretation of Statutes."

4. We are, therefore, inclined for the reasons referred to in the aforesaid joint order dated 31‑8‑1987 passed in aforementioned Bail Application No. 654 of 1987 and 4 others bail applications and for the additional reasons referred to hereinabove, that the medical ground can be pressed into service in terms of first proviso to subsection (1) of section 497, Cr . P. C . in cases triable by a Special Court under the Act of 1975.

We therefore admit the applicant to bail in the sum of Rs.2,00,000 (Rupees two lacs) in each of the above bail applications with one surety and P.R. in the like sum to the satisfaction of the Registrar of Special Court on the condition that it will be, open to the prosecution to move an application for cancellation of bail in case the applicant misuses the concession of bail and makes any speech or statement, which may fall within the mischief of any of the sections with which the applicant has been charged with.

M.B.A./165/A‑K Bail granted.

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