IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE DOST MUHAMMAD KHAN

Criminal Petition No.105/2017

(On appeal from the order dated 10.1.2017 passed
by Lahore High Court, Rawalpindi Bench, Rawalpindi
in Crl.Misc.No.2356-B/2016)

Imtiaz Ahmed
… Petitioner(s)
VERSUS

The State thr. Special Prosecutor, ANF

… Respondent(s)

For the petitioner(s): Ms. Aisha Tasneem, ASC

Mr. Mehmood A. Sheikh, AOR

For the State/ANF: Raja Inam Amin Minhas, Spl. Prosecutor, ANF
Zubiar, IO. and Ch. Ehtesham-ul-Haq, ASC

Date of hearing: 21.3.2017

JUDGMENT

Dost Muhammad Khan, J.— Impugned herein, is the order of

the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 10.1.2017,

dismissing bail petition of Imtiaz Ahmed, petitioner, which was sought

on statutory ground of delay in the conclusion of the trial.

2. The case of the prosecution against the petitioner is, that

on a tip off, S.I. Shakeel Ahmed alongwith ANF staff intercepted the

petitioner and co-accused Irfan Ali (since dead) when, they were

shifting narcotics (heroin powder) in the two shopping bags from the

boots of their respective cars near bus stop, Dhoke Gujran, Misrial

Road, Rawalpindi. Similar kind of narcotics was also recovered from

the boots of their respective cars on pointation of both the accused.

The total weight turned to be 69 kg, which was taken into possession
Crl.P.105/17 2

and case FIR No.33 of 2014 was registered by PS, ANF/RD, R.A. Bazar,

Rawalpindi on 7.5.2014, for crimes u/Ss. 9(c), 14 and 15, CNS Act,

1997. Two co-accused were also named, who were allegedly partners

in the business of narcotics with them.

2. Ms. Ayesha Tasnim, learned ASC for the petitioner,

vehemently argued that since his arrest, the petitioner’s trial could not

be concluded due to consistent absence of the prosecution witnesses

who even did not turn up, despite issuance of non-bailable warrants of

arrest against them; the investigating officer of this case has been

declared absconder in another case, whose appearance in the Court as

prosecution witness is not possible in the near future, while total

detention period of the petitioner has come to almost two years and

ten months.

Elaborating her point of view, learned ASC for the petitioner

drew our attention to some order sheets of the Special Court where,

Irfan Ali (dead accused) got sick. He applied to the Court for his

treatment through specialized hands in the hospital but the matter was

dragged on unnecessarily by the Presiding Judge of the Court, which

aggravated the disease of the said accused and when he was taken in

emergency to the hospital by the Jail authorities, he died in the

hospital. Further urged that the petitioner too is a sick person of highly

advanced age. His eye surgery was conducted after considerable

efforts, made by him and he is still not feeling well but the Trial Court

is not taking effective steps to conclude the trial nor the Prosecution is

cooperating with it, as required by law.

Crl.P.105/17 3

3. On the other hand, Raja Inam Amin Minhas, learned

Special Prosecutor, ANF having no case on merits, took shelter behind

the technicalities and argued with vehemence that the provision of

section 51 of the Control of Narcotic Substances Act, 1997 has placed

clear embargo on the grant of bail and the provisions of section 497

and 498 Cr.P.C. have been excluded in its application to such offences

by the said provision of special law, therefore, the petitioner cannot

avail the benefit of the beneficial provision of the third proviso to

section 497 Cr.P.C.

4. The provision of section 51(1) of the CNSA appears to

have been borrowed from the provision of sub-section (1) of section

497 Cr.P.C. with the only difference that in the latter provision, bail

cannot be granted even in offences punishable with life imprisonment

or imprisonment of ten years. The bar on the grant of bail in the latter

two categories of offences i.e. life R.I. and ten years R.I. were added

to section 497 Cr.P.C. through Act No. XXV of 1974.

5. Although the legislature is competent to enact law, dealing

with particular class of offences and offenders in different manners

however, it has to undergo the test of reasonableness and has to be

based on sound rationale and the distinction is to be drawn on high

moral, legal and sound grounds.

6. There is a long chain of authorities where the superior

courts have always jealously guarded and protected the liberty of

citizens in the matter of grant of bail and in all such cases assistance,

aid and guidance has always been taken from the provision of section

497 Cr.P.C. being considered the mother provision of law, regulating

the grant or refusal of bail to an accused person in cases triable under

Crl.P.105/17 4

the special law, as the said provision of law has successfully

undergone the test of all times, since its inception/incorporation in the

Code.

7. The Liberty of a citizen has been elevated to the high

pedestal by the provisions of Articles 7 and 9 of the Constitution of

1973, which inter alia provides that no citizen shall be deprived of his

life and/or liberty, save in accordance with law, nor any accused

person shall be detained without lawful authority of the competent

court.

8. Keeping in view the entire scheme of the Constitution,

particularly the Objective Resolution, which has now been made

inseparable part of the Constitution under Article 2-A thereof, that

Pakistan shall be a welfare State, therefore, one has to see whether

rigours of section 51 of CNSA, are liable to be diluted by avoiding rigid

adherence thereto in rare and exceptional cases.

9. In the above context, the first test case came up before

this Court, was the famous case known as Allied Bank v. Khalid

Farooq also cited as Muhammad Aslam v. The State (1991 SCMR

599), where a 3-Member Bench of this Court, took a contrary view,

however, lately it was suggested to the then Hon’ble Chief Justice of

Pakistan to constitute a larger bench to settle the controversy once for

all.

10. Eventually when the case of The State v. Syed Qaim Ali

Shah (1992 SCMR 2192) came up for re-examination of the ratio laid

down in the Allied Bank case (Supra), the larger bench made a clear

departure from the earlier view held in that case. In the case of Syed
Crl.P.105/17 5

Qaim Ali Shah and others, the accused were booked for crimes u/s

302/307(repealed)/120-B/34 PPC read with provision of Suppression

of Terrorist Activities Act, 1975 (repealed). The facts of the case

were, that 26 persons were done to death, while several others were

caused injuries on 22.8.1990, in various localities of Karachi, through

indiscriminate firing on the reception camps, set up by a political

party, to accord welcome reception to its leader.

11. The principal accused, namely Syed Qaim Ali Shah, in the

case (supra) got sick while under detention and a Medical Board dully

constituted, declared him so sick that his treatment was not possible in

Jail. On this ground, a Division Bench of the High Court of Sindh at

Karachi, granted him bail, pressing into service the first proviso to

section 497 Cr.P.C. despite the fact, that similar bar was placed on

grant of bail to an accused person charged for any offence contained in

the Schedule to the Suppression of Terrorist Activities Act, 1975

(repealed).

12. The 5 Members bench of this Court, to determine the

question of jurisdiction in granting bail to the accused, Syed Qaim Ali

Shah, formulated a single point of law, which is reproduced below:-

“Whether the ratio of the Judgement in the case of

Muhammad Aslam v. The State (1991 SCMR 599)
can be pressed into service in this case and whether a
person facing trial before a Special Court under the Act,
can seek bail on medical ground under the first proviso to
subsection (1) of section 497 Cr.P.C.”

13. After elaborately dealing with all legal propositions, also

drawing comparison between the provisions of sub-section (1) of

section 497 Cr.P.C. and all the provisos contained therein and section
Crl.P.105/17 6

5-A(8) of the Suppression of Terrorist Activities Act, 1975

(Special Court) while interpreting the Statute, the Bench cited the

principle laid down by Pollock C.B., in the case of Attorney General

v. Sillem (1864, 2 H & C. 431 @ 515), which is cited below:-

“In order to know what a statute does mean it is one

important step to know what it does not mean; and if it
be quite clear that there is something which it does not
mean, then that which is suggested or supposed to be
what it does mean, must be in harmony and consistent
with what it is clear that it does not mean. What it forbids
must be consistent with what it permits.”

The larger Bench held that the provision of sub-section (8) of

section 5-A of the Special Act displaces sub-section (1) of section 497

Cr.P.C. so far it was in conflict with it, however, it has not eliminated

the provisos 1 to 3 contained therein, because of lack of conflict

between it and the provision of Special Act, referred to above.

14. It was also held in firm terms, that, when any Statute

transgresses on the rights of a subject, whether as regards to his

person or property, it must be so construed as far as possible, which

may preserve such rights and no interpretation to the contrary shall be

adopted, which would pose to destroy such rights.

15. In the ultimate conclusion, the larger Bench held that, the

view in the case of Allied Bank (supra) was not based on correct

interpretation thus, while making departure from the earlier view, the

judgment of Sindh High Court granting bail to Syed Qaim Ali Shah,

accused and his co-accused on the strength of first and third provisos

to sub-section (1) of section 497 of the Code was declared justified

and was upheld by dismissing the appeal of the State.

Crl.P.105/17 7

16. In the case of Khan Asfandyar Wali Khan Vs. The

Federation of Pakistan and others (PLD 2001 SC 607) various

provisions of National Accountability Bureau Ordinance (XVIII) of

1999 were challenged on the ground of discrimination and being ultra

vires to the provisions of the Constitution. The larger Bench held the

number of provisions as legitimate because in view of the increasing

menace of corruption and corrupt practices, however, it was observed

that, no inbuilt provision is provided to regulate the grant or refusal of

bail to an accused person facing charges under the said law and the

clauses ousting jurisdiction of the Superior Courts not in conformity

with scheme of constitution (referred in para 197 at page 885), which

is reproduced below:-

“It was held in the case of Zafar Ali Shah (PLD 2000 SC
869) that the powers of the superior Courts under Article
199 of the constitution “remain available to their full
extent notwithstanding anything contained in any
legislative instrument enacted by the Chief Executive.”
Whereas, section 9(b) of the NAB Ordinance purports to
deny to all Courts, including the High Courts, the
jurisdiction under sections 426, 491, 497, 498 and 561A
or any other provision of the Code of Criminal Procedure
or any other law for the time being in force, to grant bail
to any person accused of an offence under the NAB
Ordinance. It is well settled that the Superior Courts have
the power to grant bail under Article 199 of the section
497 of the Criminal Procedure Code, section 9(b) of the
NAB Ordinance to that extent is ultra-vires the
Constitution. Accordingly, the same be amended
suitably.”

Accordingly, suitable amendments were introduced in various

provisions of NAB Ordinance, 1999. It was further held in no

ambiguous terms that, the superior Courts’ powers cannot be curtailed

Crl.P.105/17 8

or taken away with regard to protecting the liberty of citizens even in

crimes of heinous nature and that the superior Courts’ despite of no

mechanism provided for grant of bail to accused person, facing

charges under the said law can grant bail in fit cases under section 497

Cr.P.C. which has been re-activated by the superior Courts of the

country along with all beneficial provisos with regard to statutory delay

or sickness of the nature which could not be treated in jail or the same

is likely to endanger the prisoner’s life.

17. To have a speedy trial, is the fundamental right of accused

being universally acknowledged. Under the Criminal Procedure Code,

smooth methodology and scheme for speedy trial, is provided whether

it is held by the Session Court or Magistrate, in recognition of the said

right of an accused person. This principle shall apply more vigorously

to the trials before Special Courts, constituted under the CNS Act, or

any other special law so that unnecessary delay, much less shocking

one in its conclusion is avoided in all circumstances. Any unreasonable

or shocking delay in the conclusion of the trial, before Special Courts,

like we are confronted with in the present case, would amount to

denial of justice, or to say, denial of fundamental rights, to the

accused, of speedy trial.

18. After careful perusal of all the order sheets of the

Trial/Special Court, we are constrained to observe that the Presiding

Officer has shown negligent conduct in the progress of the trial,

neglecting his obligatory duty to conclude the same in minimum

possible time. Majority of the order-sheets are written in Urdu version,

Crl.P.105/17 9

which appears to be in the hand of the Reader or some other official of

the Court, while the Presiding Officer has put initials thereon.

19. The co-accused, namely, Irfan Ali (since dead) was

seriously sick, he applied to the Court for providing specialized

treatment in some government hospital, however, the Presiding Judge

of the Court did pay proper attention to it and left the fate of the said

accused at the mercy of the jail authorities and the Prosecution. The

Jailor reported to the Court that permission of the Home Department,

Punjab had been sought and on getting the same, he would be taken

to the hospital for treatment and management through specialized

medical experts. It was in this background that in not getting timely

specialized treatment in some government hospital, his disease

aggravated to unmanageable extent thus, he was shifted to the

hospital in serious emergency, however, after staying 2/3 days in the

hospital, his life could not be saved by then and he died there. This is

uncondonable default on the part of the Presiding Judge, who had

surrendered his judicial authority to the Jailor to regulate the custody

of the under-trial prisoner and to take care of his health. It must be

borne in mind that custody of under-trial prisoners, including health

care and other facilities has to be regulated strictly by the Judges,

before whom the trials are pending. The jail authorities can only deal

with the custody of those prisoners who are sentenced to

imprisonment. Thus, we are of the view that the Presiding Judge of the

Special Court was fully oblivious of his judicial authorities to enforce

the writ of the Court, keeping in view the urgent and sensitive nature

of the matter. Even in a case of hardened, desperate and dangerous

criminals, they are entitled to similar treatment, however, to ensure

Crl.P.105/17 10

that they may not abscond from the custody, the Court may direct

that while staying in the government hospital for treatment sufficient

number of security guards should be provided, however, on that

ground alone urgent treatment from specialist doctors whenever is

seriously needed, cannot be denied to them, being a fundamental right

of every citizen, as the provision of the Constitution has not drawn any

distinction between an under-trial prisoner or citizens at large.

20. The petitioner himself is also suffering from sickness as on,

while in custody, he has undergone eye surgery after considerable

efforts were made in that regard. He is also at advanced age as was

stated at the bar by his learned counsel, which was not controverted

at the bar by the Prosecution.

21. The petitioner is in Jail for almost 3 years, while conclusion

of the trial is not in sight because the prosecution witnesses are not

turning up, inspite of coercive process has been issued against them

whereas, the investigating officer in this case, who is a star witness for

the prosecution, as stated earlier is fugitive from law in another

criminal case, therefore, to expect the conclusion of the trial in the

near future, would be nothing but a far fetched dream. In the case

Mr. Asif Ali Zardari v. The State (1993 P Cr. L J 781) a Full Bench

of the Sindh High Court, granted him bail on the basis of statutory

delay in the trial. The Full Bench of the Sindh High Court at Karachi

held that in case of shocking delay in the conclusion of trial, the

accused was entitled to the concession of bail on the strength of third

proviso to section 497 Cr.P.C, which view has not been set aside by

this Court till date.

Crl.P.105/17 11

22. In view of the above legal and factual position, in our view,

the petitioner has become entitled to grant of bail as of right on the

basis of shocking delay in the conclusion of the trial, more so, if

further time is allowed to the prosecution, it would be absolutely

impossible to conclude trial before the Trial Court, in view of the

circumstances narrated above.

23. Accordingly, this petition is converted into appeal and the

same is allowed.

These are the detailed reasons for our short order of even date,

which is as follows:-

“For the reasons to follow, this petition is converted into appeal

and allowed. The petitioner is extended bail subject to furnishing
solvent bail bonds in the sum of Rs.500,000/- (five lac) with two
reliable sureties in the like amount to the satisfaction of the
learned trial Court. The petitioner is also directed to deposit his
‘Passport’ with the learned trial court.”

Judge

Judge

Islamabad, the
21st March, 2017
Nisar/*
Approved For Reporting.