The cases sought to be disposed of by this order arising out of one F. I. R. Fall into following two categories :- Category `A'.-(1) Criminal Miscellaneous No 404/B-78, Mohammad Siddique, Faiz Mohammad, Akhtar Hussain and Rana Mohammad Hanif. (2) Criminal Miscellaneous No. 446/13-78, Malik Abdul Rasul and (3) Criminal Miscellaneous No. 373/B-78, Hakim Manzoor Hussain and Syed Jaafar Ali Shah.
Category `B'.-(1) Criminal Miscellaneous No. 454/B-78, Ghulam Abbas, (2) CriminalMiscellaneous No. 550/B-78, Riaz Hussain, (3) Criminal Miscellaneous No. 467/B-78, Mohammad Ismail, (4)
Criminal Miscellaneous No. 445/B-78, Rang Mohammad Rafiq, (5) Criminal Miscellaneous No. 447/B-78, Sh. Shamsuddin, and (6) Criminal Miscellaneous No. 448/B-78, Rana Mohammad Siddique. The first category deals with the cases of bail before arrest and the second category deals with the cases of bail after arrest.
2. Facts leading to these applications are that Mr. Shaukat Iqbal Malik, Extra Assistant Commissioner, Bhakkar under; the orders of District Magistrate, Mianwali through . Assistant Commissioner, Bhakkar "inspected stock position of wheat of all the Stocks of Food Department, Behal Centre". He made out a report in which he stated that "real physical verification was not possible". However, he pointed out certain discrepancies. He also stated that "stored wheat had been attacked by insect named locally as `Khapra'. A large amount of this wheat was unsuitable and unfit for human use. No preventive measures were taken by the Food Department for the safeguard of quantity of wheat". "At certain places in the record of the Food Inspector overwriting and cuttings without signature were noticed." "Two parallel registers for godown stocks have been maintained on prescribed pro forma for one year, i.e. 1977-78. The entries do not tally with each other although entries of the same have been taken into account for calculation. He. Came to the conclusion that "there is no doubt that the Food Department, is badly involved in this scandle. The offence is equally shared by the defaulting stockists who should also be brought to books. All the defaulters should be given fair chance of clarifying their position and if found guilty be punished.
This report instead of being submitted to the District Magistrate appears to have been handed over to the S. H. O. Concerned who registered the case under sections 406, 408 and 409, P. P. C. And Martial Law Order No. 6. Petitioners in Category `B' were arrested towards the end of December, 1977 or in the beginning of January 1978. The petitioners have filed these applications for bail.
3. Learned counsel for the petitioners have submitted that the petitioners were not the stockists and were by no means guilty. They have also submitted that, at the best, the case requires enquiry and even the reporting officer ha-- said that fair chance of clarifying their position was to be granted to the petitioners which was never done and they were sent behind the bar. Learned counsel for the petitioners have referred to a decision of my learned brother Mr. Justice Shafiur Rahman in W. P. No. 4190 of 1977, decided 'on 23-1-1978 and pointed out that the petitioners in that case were convicted under Martial Law Order No. 7 "Zone A" by the Summary Military Court, but the order being inapplicable, their con--victions were declared to be without lawful authority - and of no legal effect and the convicts were released forthwith. The contention of the learned counsel for the petitioners is that if a Martial Law Order is not applicable, even after conviction, the convicts can be set at liberty, and that being so the petitioners would be entitled to bail pending their trial.
Learned counsel has finally contended that addition of Martial Law Order No. 6 to the substantial offences under the ordinary criminal law has been made by the Police Officer and without any basis on facts, or, any directions from any Martial Law Authority.
4. The learned Assistant Advocate-General, Mr. Asif Jan, with Mr. M. Anwarul Haq, Advocate has appeared for the State and submitted that as far as the persons in category `A' are concerned i. e.
Who have not been arrested, their position is as it was in W. P. No. 18/78 that "if they were allowed bail in respect of the offences under the Penal Code by a Court of competent jurisdiction, they shall not be arrested under Martial Law Order No. 6".
5. This being the position of the learned counsel for the State, it is to be seen as to whether the petitioners in Category `A' should be allowed bail. The contention of the learned counsel for the petitioners is borne out from the perusal of the report submitted by Mr. Shaukat Iqbal Malik, Extra Assistant Commissioner, that the matter requires enquiry in so far as that the latter has said that "defaulters should be given fair chance of clarifying their position". Besides, the matter obviously requires ascertain--ment of facts and checking as to whether the petitioners- were stockists or not and as to whether they were at fault in any manner or not. In this view of the matter, the petitioners in Category `A' are entitled to bail. Therefore, the interim order by which they were allowed bail subject to notice is hereby confirmed.
6. As regards the petitioners in Category `B', i.e. Those who have been arrested and are in jail, the contentions of the learned counsel for the petitioners are the same as noted above.
7. The learned Assistant Advocate-General, on the other hand; has submitted that the persons in Category `B' having been arrested and being in jail, they may be allowed bail under the original criminal offences, if they are entitled thereto, but, as regards Martial Law Order No. 6, they cannot be allowed bail by this Court. For the purpose of bail under Martial Law Order No. 6, the petitioners should apply to the Military Court. Learned counsel has referred to para. 4(2) of CMLA Order No. 1, the Laws (Continuance in Force) Order, 1977 which is to the following effect :-- "No judgment, decree, writ, order or process whatsoever shall be made or issued by a Court or tribunal against the Chief Martial Law Administrator or any Martial Law Authority exercising powers of jurisdiction under the authority of the Chief Martial Law Adminis--trator."
8. The Investigating Officer is present in Court and has produced the record. He has stated that on the basis of the report of Mr. Shaukat Iqbal Malik, Extra Assistant Commissioner, Bhakkar, he recorded the F. I. R. Under sections 406, 408, 409, P. P. C. And Martial Law Order No. 6. After having arrested the petitioners in Category `B' he produced them before Mr. Shaukat Iqbal Malik Magistrate Ist Class who allowed him remand ado subsequently, sent the accused persons to judicial lock-up.
9. There is nothing on the record to show that the Martial Law Authorities have exercised any power or jurisdiction in the matter. Mr. Shaukat Iqbal Malik, Extra Assistant Commissioner conducted the ins--pection under the orders of the District Magistrate. He should have submitted his report to the District Magistrate. But ii appears that he gave his report to the S. H. O. Concerned who registered the case under the aforesaid sections of the Pakistan Penal Code as well as added Martial Law Order No. 6. The Investigating Officer arrested the accused persons. He produced them before Mr. Shaukat Iqbal Malik, who apparently exercised magisterial powers under the Criminal Procedure Code. The accused persons were initially remanded to the Police custody and then sent to judicial lock-up by Mr. Shaukat Iqbal Malik. Military Court has not taken cognizance of the case as yet.
Therefore, if the Martial Law Authorities are not concerned with the registration of the case, its investigation or trial as ye and have exercised no power or jurisdiction under the authority of the Chief Martial Law Administrator, how can they be involved in the matter and ordinary functions under, the general law performed by ordinary authorities 'imputed to have been performed by Martial Law Authorities and, then, a claim made for immunity for their own actions, and ouster of the jurisdiction of the High Court preserved by the Chief Martial Law Administrator, vide Chief Martial Law Administrator, Martial Law Order No. 1 of 1977. Moreover, it is to be noticed that the persons who ha not been arrested in the same case and had applied for bail before arrest, the learned Assistant Advocate-General had in Writ Petition No. 18 of 1978 conceded that "the petitioners Nos. 2 and 3 whose case was distinguishable from that of petitioner No. 1 (who was a Government official) shall not be arrested under Martial Law Order No. 6: Provided they are allowed bail by a Court of competent jurisdiction for the remaining offences under the Penal Law". The same stand has been reiterated by the learned Assistant Advocate-General in the case of petitioners in Category `A'. Now, if the accused persons had not been arrested and were allowed bail for the substantial offences by the High Court, they were not to be arrested under the added provisions of Martial Law Order No. 6. What is the difference on principle or logic that the persons who had been arrested, they cannot, in spite of being allowed bail for the general offences, released on bail because of the addition of the same provision. On the other hand, it would appear that those persons who had obtained bail before arrest were better off than those who were arrested and have remained in jail for couple of months. On the face of it, the treatment to the set of the two accused of the same offence or offences whould be discriminatory and worst for those who had already suffered imprisonment. The law does not contemplate such discrimination. The basis of the stand of the learned Assistant Advocate-General was that excepting the person who was Government official and to whose case apparently Martial Law Order No. 6 was applicable, the case of the others was distinguishable, because they were not occupying official positions. The petitioners in these cases too are not Government official occupying any official positions. No more need be said in this behalf and all what is said is confined to these proceedings. Therefore, on principles of equality before law, and fairness to all, the petitioners in these petitions m Category 'B' as well are entitled to bail like all others who are accused of the same offences.
10. In view of what has been stated above and relying on the principles Laid down in Writ Petition No. 4190/1977 by my learned brother Mr. Justice Shafiur Rahman, the petitioners in Category `B' mentioned in para. 1, are also allowed bail in the sum of Rs. 20,000 (twenty thousand) only each with two sureties each in like amount to the satisfaction of Assistant Com--missioner, Bhakkar.
11. The petitioners are directed, as they are duty bound under law, to join the investigation whenever called upon. The petitions aforesaid are thus disposed of.