ALI MURAD Versus THE STATE

-ORDER

Bail Applications Nos. 262/94, 267/94 and 436/94 filed on behalf of applicants Ali Murad, Jawed and Ghulam Nabi respectively are being disposed of by this common order as the same have been moved on common ground of delay for consideration of this Court, after their failure to get bail from the trial Court on that ground.

Applicant Ali Murad is facing trial in a case arising out of an F.I.R. No.27 of t99t under section 302/34/114, P.P.C., lodged by complainant Ghulam Rasool, registered at Police Station Mehar on 22-.4-1991. His bail applications, moved thrice, were turned down on merits as well as on the ground of delay.

Applicant Ghulam Nabi is facing trial in a case arising out of an F.I.R. No.22 of 1991 under section 302/307/34, P.P.C. lodged by complainant Jamshed, registered at Police Station Hussanabad, District (Hyderabad) on 7-3-1991. In this case three accused were granted bail on merits whereas the present applicant had applied for bail on 3-4-1993 on the ground of delay under third and fourth provisos to section 497, Cr.P.C which was granted on 24-4-1993. As soon as, it was brought to the notice of the Court that the third and fourth provisos were not more existing at the time of granting bail, as they had been omitted by an Ordinance, the Court recalled its order and the accused was remanded to custody vide order dated 2-9-1993. Fresh application on the ground of delay was dismissed by the trial Court on 18-9-1993. Mr. Hidayatullah Abbasi, appearing on behalf of the complainant strongly opposed this bail application by alleging that as the matter is being delayed by the accused himself so he is riot entitled to be released on this ground.

Applicant Javed is facing trial in a case arising out of an F.I:R. No.15/91 under section 302, P.P.C. lodged by complainant Muhammad Sadiq registered at Police Station Nooriabad, District Dadu on 3-8-1991. Bail was sought on the ground of delay as the case has not concluded during the last 28 months. The learned Additional Sessions Judge, Kotri did not like to touch or discuss this ground in his order dated 12-5-1994 for the reasons best known to him. However, such conduct is not appreciable because the Courts are expected to discuss each and every important ground, urged by the learned Advocates, while passing an order on any application.

2.Thus, main ground advanced by the learned Advocates in support of their applications was the ground of delay. This ground has seen many ups and downs in the past in respect of its importance during different periods which can be divided into four phases: .

First phase includes the period prior to 1979.

Second phase starts from 1979 and ends on 16-11-1992.

Third phase starts from 16-11-1992 -and ends on 9-7-1994, and

Fourth phase started from 9-7-1994 and is still in operation.

To remove all kinds of confusions and doubts I decided to hear the contentions of the learned Advocates in detail. Syed Madad Ali Shah, learned Advocate from the bar, assisted the Court as amicus curiae. It was on account of their valuable assistance that I succeeded to write the forthcoming paragraphs.

FIRST PHASE (PRIOR TO 1979)

3.Prior to 1979, the Courts were always inclined to grant bail if the delay in proceedings was so inordinate- or so scandalous or so shocking as to amount clearly to an abuse of the process of law. The Superior Courts always expressed their view by saying that there can be no reason either in principle or in law as to why delay cannot be treated as a sufficient ground for granting bail if the same can be sufficient for quashing a criminal proceeding in trial (Reference can be made to the cases reported in PLD 1974 SC 224, PLD 1975 Lahore 210, PLD 1968 SC 353,1969 SCMR 362,1973 SCMR 212,1976 SCMR 413 etc.)

On account of large number of judgments on this point, ground of delay was usually treated as a right of an accused to be released on bail although it was neither a statutory right nor was a sufficient ground by itself because mere delay. can never be a good ground for grant of bail if it has no characteristics of being scandalous or shocking or unjustified amounting to abuse of the process of law.

SECOND PHASE (AFTER 1979 TILL 16-11-1992)

4.Unfortunately the subordinate Courts had started exercising their discretionary powers to grant bail to accused person in such manners which ultimately gave birth to anomalies. Hence, on 19-12-1979 Ordinance LXXI of 1979 was promulgated to control discretionary powers of Courts as well as to end confusions created mostly due to conflicting decisions. The Ordinance added third proviso to section 497(1), Cr.P.C. by way of Criminal Procedure, (Second Amendment) Ordinance, 1979 which reads as under:

(PLD 1984 Central Statutes 45).

Both these provisions remained in operation with tub force till 16th November, 1992 when they were suddenly struck down by the ruling Janta to deprive one political rival as detailed in the next paragraph.

THIRD PHASE

Mr. Asif Ali Zardari, husband of Ms. Benazir Bhutto had moved his bail Application No.839 of 1992 on 10-11-1992 on the ground of delay as his "statutory right" given by third proviso to section 497(1), Cr.P.C. id a casc arising out of an F.LR. No.260/90 under sections 13(f) and 16(b) of the Arms Ordinance. when the contents of bail application appeared in newspapers, the ruling enemies of "Bhutto's family" became very upset because nothing could become hurdle for grant of bail to Mr. Zardari. The professional wiseacres and political consists advised the Government to bring such an Ordinance through the President by means of , which the third and fourth provisos to section 497(1), Cr.P.C. could be omitted. According to their dreams, if such provisos cease to be existing then Courts would not be able the grant bail on that ground. On account of this background the ruling Pandits enforced Ordinance XV of 1992 which was promulgated on 16-11-1992 through Code of Criminal Procedure (Second Amendment) Ordinance, 1992 with immediate effects. It brought an amendment in section 497 in subsection (1) which reads as under:

When this Ordinance was brought to the notice of the Court, it formulated the following questions on 29-11-1992 to consider the effects of Ordinance XV of 1992:

6.Arguments advanced by the learned Advocates on the strength of several judgments of the Supreme Court made it clear that "a statute" which impairs vested rights or the legality of past transaction or the obligation of contract should not prima facie be held to be retrospective with the result that enactment of such a statute is always presumed to be prospective in operation unless there is clear intention expressed by the Legislature in the enactment itself to give it retrospective effect or the matter in issue is a matter of procedure because an enactment regarding procedure can operate retrospectively. This legal position, naturally, worried the rulers and their wiseacres. Hence to meet this new situation Ordinance XXII of 1992 (Suppression of Terrorist Activities (Special Courts) (Amendment Ordinance 1992) was introduced on 13th December, 1992 because the Court was going to announce its decision on 15-12-1992 on the questions formulated on 29-11-1992. Ordinance XXII of 1992 brought important amendment in the Suppression of Terrorist Activities (Special Courts) Act 1975 which runs as under:

7.From subsection (8-A) reproduced above, it is evident that intention of Legislature was to take away powers of High Court to grant bail by giving retrospective effect to the amendment brought through Ordinance XXII of 1992. It created doubts about the jurisdiction of High Courts due to which Court could not announce its decision on 15-12-1992. Before the arguments on this new situation could be heard or concluded, Act I of 1993 (Suppression of Terrorist Activities (Special Courts) (Amendment) Act, 1993 came into existence (PLD 1993 Central Statutes 192-193) and it washed away the effects of Ordinance XXII of 1992 with the result that the Court announced its decision on 31-1-1993. Bail was granted to Mr. Asif Ali Zardari in the sum of Rs.5,00,000 (Rupees five lacs) in an offence punishable under sections 13(f) and 16(b) of the Arms Ordinance (1992 PCr.LJ 781).

It would not be out of place to point out that, ,political vindictiveness by the disciples of Martial Law Authorities was never kept limited to political rivals but it was also extended to the innocent and poor servants. The cases of Muhammad Akbar Samejo and Muhammad Razzak Awan (both servants of Ms. Benazir Bhutto and Mr. Asif Ali Zardari) are the best examples of this reality. The police had registered three FIRs on 26-8-1990 out of one transaction. F.I.R. No.258/90 against Muhammad Akbar Samejo, F.I.R. No.259/90 against Muhammad Razzak Awan and FIR. No:260/90 against Mr. Asif Ali Zardari were registered with the same contents and under the same sections of Arms Ordinance. Both the servants were arrested on the same day till proceedings against Akbar Samejo were quashed by the High Court of Sindh on 24-9-1991 (1992 PCr.LJ 127'9) and appeal filed by the State before the Supreme Court was dismissed on 13-3-1992 (1992 SCMR 2310) but the same case was kept pending, even after ihd release of Akbar Samejo and challan was submitted against Mr. Asif Ali Zardari on 16-11-1991 i.e. about 2 months after the release of his servant and about 17 months from the date of lodging of F.I.R.

Was it not the best example of political vindictiveness against the Bhutto's family that High Court quashed all proceedings against the servant but his master was refused even the bail by the trail Court in the same case?

8.Although Act I of 1993 had brought an end to Ordinance XXII of 1992 yet it did not affect Ordinance XV of 1992. However, its Constitutional death was known to every one because under Article 89(2)(a)(i) of the Constitution of the Islamic Republic of Pakistan, no Ordinance could remain in existence after the expiry of four months from its promulgation if the same was not laid before the National Assembly as a Bill.

In the light of this Constitutional aspect Ordinance XV of 1992 had come to an end on 15th March, 1993 but on the same day, the President of Pakistan enforced Ordinance III of 1993 through Code of Criminal Procedure (Second Amendment) Ordinance, 1993 (PLD 1973 Central Statutes 226) which was reproduction of Ordinance XV of 1992. In other words, Ordinance XV of 1.992 was repromulgated on 15th March, 1093.

When Ordinance III of 1993 came to an end after four months of its promulgation, Ordinance X of 1993 (PLD 1993 Central Statutes 373) was enforced on 14th July 1993 through Code of Criminal Procedure (Third Amendment) Ordinance 1993 which was nothing but again a reproduction or re-promulgation of expired ordinances XV of 1992 and III of 1993. When Ordinance X of 1993 was taking its last breath on its death bed, Ordinance XLI of 1993 (PLD 1994 Central Statutes 58-59) through Code of Criminal Procedure (Sixth Amendment) Ordinance, 1993 was injected in the Central Statutes on loth November, 1993 which was again the repromulgation of previous Ordinances.

On expiry of Ordinance XLI of 1993, Ordinance XIX of 1994 (PLD 1994 Central Statutes 261-262) was brought into operation through Code of Criminal Procedure (Amendment) Order:., 1994 on 10th march, 1994 which was also the repromulgation of previous expired Ordinance

FOURTH PHASE

Legality of repromulgation of Ordinances in similar manners has been considered by the Superior Courts several times in the past and the same was also considered in detail by their Lordships in the case of Collector of Custom, Karachi v. Messrs New Electronic (PLD 1994 SC 363) wherein it was unanimously observed by their Lordships that:--

but in view of the majority opinion, it was also held by the Honourable Supreme Court that--

In the light of above decision of the Honourable Supreme Court, it can be safely said that if the National Assembly is existing and there were no reasons to show for not placing an Ordinance for approval of the National Assembly then legitimacy of such repromulgation of an Ordinance is nothing but more or less similar to the sacredness of illegitimate child in the Muslim Society. Therefore, sanctity of Ordinances XLI of 1993 and XIX of 1994 re promulgated on 10-11-1993 and 10-3-1994 respectively is doubtful because an elected Government had come into existence at that time and I find no reasons on account of which there Ordinance could not be placed for approval of the National Assembly.

Be that as it may, Ordinance XIX of 1994 promulgated on 10-3-1994 `. It has met its Constitutional death on 9-7-1994 and after that no such other Ordinance was re-enacted with the result that third- and fourth provisos- to section 497(1), Cr-P.C. have automatically come into force with their original form as they were prior to 16-12-1992. Even during the period of their absence, the Courts were-more competent to grant bail to an accused person on the ground of delay as there was no embargo laid on the Courts in the form of third or fourth provisos to section 497, Cr.P.C. during that period, provided the delay was shocking or scandalous or amounting to abuse of process -of law. Besides the above, the intention of Legislation to put embargo in the form of third and fourth proviso can never be presumed to take away the powers of Courts or to put restrictions upon the Court to grant bail because if it had been so then no High Court could entertain applications under section 426, Cr.P.C. of prisoners, convicted and sentenced to death, to suspend their sentence and to grant them bail, at least for two years, if it could not grant bail to an under trail prisoner, facing charges punishable with death and who are presumed to be innocent unless proved guilty. Thus -intention .of the Legislature seems nothing but to check, control and end the anomalies created due to conflicting decisions.

10.In the light of above discussion, I do not see any reason to refuse bail to any of the applicants because:

Taking all these circumstances into consideration, the applicant is ordered to be released on bail, if he is not required in any other cognizable offence and if he furnishes surety in the sum of Rs.2,50,000 (Two lacs and fifty thousands) and P.R. Bond in the like amount to the satisfaction of the trial Court.

Before parting with this order, I would like to place on record my appreciation for the learned Advocates for the applicants, especially for Syed Madad Ali Shah, who served as amicus curiae, because the assistance received from them was the main source for me to write these lines to end all confusions about the ground of delay for granting bail.

N.H.Q./A-1512/K

Bail allowed.