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. 
