SAJAWAL. SARWAR Versus THE STATE

INAYAT ELAHI KHAN, J. --The case giving rise to this bail application was registered vide F.I.R. No. 398 at Police Station, Abbottabad Cantt. on 7-7-1983. Sajawal Sarwar, petitioner, was arrested on 10-8-1983. His statement as an approver was recorded on 20-8-1983. According to the learned counsel for the petitioner, all the twelve accused involved in the case had been released on bail by the lower Court. The bail applications of the petitioner, who is an approver, were refused by the learned Special Judge Banking on 12-11-1986 and 28-11-1987. The petitioner has, therefore, approached this Court for the grant of bail under Section 561-A Cr.P.C. by placing reliance on 1971 P Cr. L - J 1150, 1973 P Cr. L J 304 and 1987 P Cr. L J 596. It is contended that in the cited cases approvers were granted bail under the inherent powers of the Court in spite of the bar contained in section 337(3), of the Criminal Procedure Code. On the other hand the learned counsel appearing for the State relied on P L D 1966 Lahore 549 and P L D 1968 Lahore 1030 to contend that in view of the absolute bar contained in section 337 (3) Cr.P.C., the petitioner is not entitled to the concession of bail. It may be mentioned that these cases were considered in 1971 P Cr. L J 1150 but even then the approver was allowed bail under the inherent powers of the Court. The learned counsel for the State also relied on a Full Bench judgment of this Court reported in 1985 P Cr. L J 205 which was a case under the Suppression of Terrorist Activities (Special Courts) Act, 1975 wherein it was held that the persons accused of the Offences under 'the said law could not be enlarged on bail by the High Court under the provision of section 497, Cr.P.C. The judgment relied upon is distinguishable for the reason that the Question of grant of bail to an approver as such was not involved in case. This question was considered in 1971 P Cr.' L J 1150 an it was held that the prohibition under section 337(3), Cr.P.C. would come into play only when the trial is either in sight or in progress years however, commencement of the trial has already taken several and is still not within the sight, the Authorities are agreed tat bail could be allowed to an approver on the ground of abuse of the process of the Court under section 561-A., Cr.P.C. inasmuch as prohibition contained in subsection (3) of section 337, Cr.P.C. would not be applicable. The learned counsel for the State also referred to section 10 of the offences in Respect of Banks (Special Courts) Ordinance, 19$4 and contended that this provision totally bars the jurisdiction of any Court from granting relief to any person concerned with an offence under this Ordinance. Regarding this contention it may be mentioned that in P L D 1985 Lahore 48 it was held that according to section 10 of the Ordinance, High Court is the appellate Court against the judgment of the Special Court. The appellate Court can exercise all powers of revision under section 435/439, Cr.P.C. and powers of, appeal under Chapter XXXI of the Code. These powers have not been taken away by the Ordinance. Secondly, under section 5(8) of the Ordinance a Special Court shall in all matters in respect of which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code, for the trial of case by Magistrates.

2. In the case in hand, the bail is sought by the petitioner on the ground that he is in judicial lock-up for the last more than four years and all the accused in the case had been released on bail; that in spite of the fact that the challan has been put in Court, no charge has yet been framed as yet; that one of the accused, namely, Malik Sabir Hussain was not attending the Court for a long time who was later on declared as a proclaimed offender: that a number o times, the case was adjourned at the instance of the prosecution and on .no occasion any delay was caused on behalf of the petitioner. In view of these submissions and for the reasons aforementioned we consider that it would be in the interest of justice if the petitioner is allowed bail under the inherent powers of this Court to avoid abuse of the process of the Court. The petitioner is, therefore, allowed bail in the sum of Rs.50.000 with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate.

M. Y. H./609/P Bail granted