' This is a petition under section 498, Cr. P. C. By Muhammad Naeem, petitioner, for grant of pre- arrest bail in respect of a case instituted against him under sections 304/109, 161, P. P. C., 5 (2), Prevention of Corruption Act, 1947, and section 7 of the Foodstuffs Control Act, 1958, at Police Station, City Burewala, on 22-12-1978.
2. The brief facts of the case are that illegal movement of rice on a very large scale from Burewala to other districts was taking place with the connivance of the petitioner. At the instance of the military authorities, the Assistant Commissioner, Burewala, and one Major Ali Hamad were directed to hold an inquiry into the matter, who after recording the evidence of various witnesses, held in their inquiry report dated 6-11-1978 that the petitioner was prima facie guilty of abetting the transportation of rice and paddy from Burewala to other districts, subject to payment of bribe to him; that he received Rs, 2,500 (out of Rs, 5,000 settled) as bribe from one Muhammad Saeed deceased truck driver to carry a truck-load of rice from Burewala to Multan; that when the said deceased did not pay the balance amount of Rs, 2,500, he pursued the truck driver in his car and thus directly contributed to the said truck driver losing control of his truck and smashing it against another truck on 7-8-1978; and that the petitioner owned properties and lived beyond his means.
3. The learned counsel for the petitioner submitted that on 7-8-1978, an earlier F. I. R. Regarding the same truck accident has been recorded a Police Station City, Burewala, in which the petitioner had not been named and that the present F. I. R. Amounted to a second F. I. R. Regarding the same offence, which was not permissible in law. He further submitted that as regards offences under section 161, P. P. C. And section 7 of the West Pakistan Foodstuffs (Control) Act, 1958, the maximum sentence was only three years and that under section 5 (2), Prevention of Corruption Act, 1947 the same was seven years and that as his client was not required by the police and no recoveries were to be made from him, his client should be released on bail.
4. The learned Additional Advocate-General, who appeared for the State and strongly opposed the petition, submitted that according to the order of the Deputy Martial Law Administrator, dated 14- 12-1978, the Police had been directed to submit the case to the Military Court for trial and that in these circumstances this Court had no jurisdiction to admit the petitioner to bail. He further submitted that under section 9 (d) (ii) of the West Pakistan Foodstuffs (Control) Act, 1958, the High Court was barred from exercising its powers under section 498 of the Criminal Procedure Code and, therefore, again this Court had no jurisdiction to allow the petitioner bail.
5. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and the State. So far as the offence under section 304/109, P. P. C. Is concerned, the police have only the statement of one Munir Ahmad Cheema, who has stated that Truck No, R I E/5275 driven by Muhammad Saeed driver was proceeding at a fast speed followed by a dark brown car, but there is no mention of the number of the said car or the fact that the present petitioner was the owner of or driving the same. In these circumstances, it cannot be said that there is a prima facie case against the petitioner under section 304/109, P. P. C. As regards the other offences, the maximum sentence is only seven' years' rigorous imprisonment. Other than the legal objections raised by the learned Additional Advocate-General, there is no impediment in the, grant of bail to the petitioner. The legal objections raised by the learned! Additional Advocate- General, therefore, require examination.
6. As regards the first objection of the learned Additional Advocate- General, the first question that arises is whether the Military Court has taken cognizance of the case under sub-paragraph (2) of paragraph 2 of C. M. L. A. Order No, 4 (as amended by C. M. L. A. Order No, 37). There is the letter of the Deputy Martial Law Administrator, dated 14-12-1978, which reads as follows :- "Court of inquiry proceeding regarding rice smuggling is forwarded for registration of the case against the accused. Please forward challan papers to this Headquarter after completion."
' This does not clearly state that the police should, after their investigation, submit the challan to the Military Court, but the implication that it is so intended cannot be totally excluded. In view of this implication, the question that calls for consideration is whether it can be said that the Military Court has, by virtue of the existence of this letter or otherwise, taken cognizance of this case. A Military Court can take cognizance of an offence only upon receiving a complaint of facts which constitute such an offence, or upon a report in writing of such facts made by any Police officer or any officer of the Armed Forces, or upon information received from any person other than a Police officer or an officer of the Armed Forces, or upon the Court's own knowledge or suspicion that such offence has been committed. The learned Additional Advocate-General, when directly confronted with the question whether the Military Court, as such, had received up to date the challan from the police or a complaint of facts from any person or police officer, or whether the Military Court, as such, had presently open its own knowledge or suspicion of the offences imputed to the petitioner taken cognizance of the case, the learned Additional Advocate-General had to admit that no Military Court had taken such cognizance. In view of these circumstances, it cannot be denied that the Military Court is not presently seized of jurisdiction and that, unless there is any other bar, the powers of the Ilaqa Magistrate and this High Court available under the Criminal Procedure. Code are not ousted. The mere fact that a letter is in circulation which shows that the case c may ultimately be drawn into the jurisdiction of the Military Court canno ipso facto oust the jurisdiction of the ordinary criminal Court.
7. As regards the second objection of the learned Additional Advocate-General, namely, that section 9 (d) (ii) of the West Pakistan Foodstuffs (Control) Act, 1958, bars this Court from admitting a person to bail, the said legal question which came up for consideration in Muhammad Aslam v.
State (Criminal Miscellaneous No, 610/B-78), has been referred to a larger Bench. A large number of other bail petitions and writ petitions relating to offences under the West Pakistan Foodstuffs (Control) Act, 1958, filed in this Court, have all been consolidated with Criminal Miscellaneous No, 918/B-7e. In the majority of these cases, either the-learned Additional Advocate-General has given an undertaking that the petitioners will not be arrested till the decision of their petitions or interim bail has been allowed by the Court under section 561-A, Cr. P. C. This factual position has not been controverted by the learned Additional Advocate-General. In these circumstances, this case should also be heard along with Criminal Miscellaneous No, 610/B-78. As regards the question of interim bail, I am afraid this must be allowed. By the time the larger Bench is constituted and does hear the cases referred to it, a year or two will elapse. 0 The petitioner cannot be kept in confinement all this while. It is yet to be seen whether the High Court's powers under section 498, Cr. P. C. Art barred. Ex debit justified the powers of this Court under Article 203 of the Constitution of Pakistan can be invoked to grant interim bail to ,the E petitioner.
8. For the foregoing reasons, this case will be heard along with Criminal Miscellaneous No, 610/B-78.
The interim pre-arrest bail earlier granted to the petitioner by me on 30-12-1978 shall continue, but this interim bail shall automatically lapse on the date that the Military Court takes cognizance of the case or the larger Bench dismisses the present bail petition referred to it, whichever is earlier.