Nawaz Abbasi and Ch. Ijaz Ahmed, if ABDUL QADOOS vs THE STATE

ORDER

' The petitioner being an accused in a case under section 324/34, P.P.C. Read with section 109 thereof registered vide F.I.R. No,14, dated 27-1-1997 with Police Station Sehala was granted bail by a Magistrate Section 30, Islamabad vide order, dated 12-4-1997. Upon recalling the order in question by the learned Sessions Judge, Islamabad exercising the powers as Special Judge, Suppression of Terrorist Activities, Federal Area, Islamabad vide order, dated 21-6-1997, the petitioner has moved this application under section 497, Cr.P.C. For grant of bail before this Court. He allegedly armed with .30 bore pistol was one of the participants of the occurrence in which the complainant and one Aftab Yousaf were injured. The petitioner is attributed the role of firing at the complainant, which caused injury to Aftab Yousaf.

2. The to the petitioner by the Judicial Magistrate was recalled by the learned Special Judge, Suppression of Terrorist Activities, Islamabad on the ground that the weapon used in the occurrence is defined as T.T. Pistol, which being semi-automatic, the offence is exclusively triable by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Magistrate was not competent to grant the bail.

3. Learned counsel for the petitioner contended that in absence of any evidence to the effect that the pistol allegedly used was semi-automatic, the learned Court was not justified to recall the bail on such ground. Learned counsel also contended that keeping in view the background of enmity between the parties, as petitioner is a witness in a case in which the complainant is an accused and the role assigned to him, the case against the petitioner needs further inquiry.

4. Learned counsel appearing on behalf of the complainant and the State vehemently opposing the grant of bail contended that the role assigned to the petitioner having proved through the direct evidence available on record beyond any doubt, he does not deserve the concession of bail.

5. We have heard the learned counsel for the parties and perused the record. The petitioner is attributed the role of firing in the occurrence with .30 bore pistol. Without going into the correctness of the allegation and the liability of the petitioner, the question regarding the exercise of jurisdiction by the learned Special Judge under section 497(5), Cr.P.C. Must be judged in the light of the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975.

' Section 5-A(8) of the said Act provides as under:-- "Notwithstanding anything contained in sections 439, 491, 496, 497, 498-A and 561-A of the Code, no Court other than the Special Court shall have the power or jurisdiction to grant bail to any accused person: ' Provided that the Special Court shall not release the accused on bail, if there appears reasonable grounds for believing that he has been guilty of the offence for which he has been charged, nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be released."

' Section 6(1) of the above Act reads as under:- "(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 Sessions exercising original jurisdiction."

' An accused person, if has committed a scheduled offence triable by such Court, cannot be released on bail by such Court or any other Court, but the question for determination would be that whether Special Court by virtue of section 6 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 enjoying general jurisdiction under section 497(5), Cr.P.C. Without taking cognizance in a case in which challan is not submitted before the said Court can still exercise jurisdiction under section 497(5), Cr.P.C. Against an order passed by a Magistrate, not subordinate to Special Judge and would be competent to invoke the revisional jurisdiction under section 439, Cr.P.C. Section 497(5), Cr.P.C. Provides as under: -- "A High Court or Court of Sessions and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.

Reading the provisions of section 497(5), Cr.P.C. With sections 5-A(8) and 6(1) of Suppression of Terrorist Activities (Special Courts) Act, 1975, the question of exercise of powers by the Special Court under section 497(5), Cr.P.C. In a case not before it is debatable. Thus, the powers of grant of bail under section 5-A(8) (ibid) read with section 497, Cr.P.C. Are available to the Special Court and by virtue of section 6(1) of said Act, the power under section 497(5), Cr.P.C. Can also be made available to such Court. The distinction would be that a High Court or Court of Session under section 497(5), Cr.P.C. Can cancel the by it or some other Court but the same powers as such are not available to the Special Court in a case in which bail is granted by some other Court.

' Under the provisions of section 497(5), Cr.P.C. Except the High,Court and Court of Session, no other Court in a case in which such Court has not granted bail can interfere in the order under special jurisdiction. The High Court and Court of Session may cancel by other Courts in a case pending before such other Court, but no other Court in absence of special provision in this behalf can exercise jurisdiction in a case not entrusted to such Court.

6. The prosecution possessing no proof of the use of weapon in the occurrence for taking cognizance by the Special Court, the general observation of learned Special Judge that .30 bore pistol is light semi-automatic weapon and the case is triable by the Special Court was of no significance, therefore, without determining the question of jurisdiction at proper stage, the Special Court was not supposed to interfere in the to the petitioner by a Magistrate.

7. It is not disputable that only scheduled offences are triable by a Special Court upon submission of challan or complaint, as the case may be, and unless the case is not sent to the Special Court, the order of the nature curtailing the liberty of a person by Special Court under section 497(5), Cr.P.C. Interfering in the order passed by a Court other than Special Court would be coram non judice.

8. In a nutshell, the exercise of jurisdiction in a case, which is not before the Special Court, by said Court was not proper and the cancellation of bail of the petitioner under section 6(1) of Suppression of Terrorist Activities (Special Courts) Act, 1975 read with section 497(5), Cr.P.C. By the Special Court at this stage is hereby recalled. The petitioner shall remain on bail under the .Order, dated 12-4-1997 passed by the Magistrate Section 30, Islamabad, unless the challan is submitted before the Special Court or it is recalled/cancelled by the Court, which granted the same or Court of Session or High Court, as the case may be. The petitioner shall he released from jail subject to his furnishing fresh bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) with one surety in the like amount to satisfaction of the Court concerned.