That is an application under section 498, Cr. P. C. On behalf of 11 persons for the grant of Bail.
2. The facts giving rise to the application are that on the 15th of October 1970; Col. Abid Hussain, who is a candidate for the National Assembly from Jhang Tehsil, accompanied by a large number of his supporters including the 11 petitioners, went to file his nomination papers is the Court of the Assistant Commis--sioner, Jhang. At that very the, Mr. Ghulam Haidar Bharwana, who is also a candidate for the National Assembly froth the same constituency, came to file his nomination papers, accompanied by about 2000 persons. The supporters of each candidate started raising inflammatory slogans against each other, which resulted in a clash between the parties and they took to throwing brick-bats at each other. About eight persons from both sides were injured, On the intervention of the Police the crowd, (consisting of about 4000/5000 persons), dispersed. A case under sections 14 and 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (here- in-after called the Ordinance) was registered. Where in after 11 persons were arrested out of the persons accompanying Col. Abid Husain and 12 persons were arrested from amongst those accompanying Ghulam Haider Parwana. Another person, namely, Muhammad Sharif belonging to the side of Ghulam Haider Parwana, who was also to be arrested, managed to escape and applied for bail before arrest in the Court of the learn--ed Additional Sessions Judge, Jhang. The arrested persons of each party moved bail application before the Assistant Commis--sioner, Jhang, who granted bail to all of them on the 17th of October 1970, by to separate orders.
3. In the meanwhile the application of aforementioned Muhammad Sharif for bail before arrest carne up for hearing before the learned Additional Sessions Judge, who dismissed the same vide his order, dated the 16th of October 1970, on the ground that in view of sections 22 and 23 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the provisions of Criminal Procedure Code were not attracted to the offence under the said Ordinance, and that the ordinary Courts established under the Code were not empowered to grant bail to the persons arrest--ed for such offences. Muhammad Sharif was thereafter, arrested. He then filed an application for bail before the learned Assistant Commissioner, Jhang. In view of the observations made by the learned Additional Sessions Judge, Jhang, in his above noted order, the learned Assistant Commissioner also dismissed his application observing that since a special forum had been provided by the above-noted Ordinance to deal with such cases, the provisions of the Criminal Procedure Code were not attracted and consequently he had no jurisdiction to grant bail to Muhammad Sharif.
4. The learned Assistant Commissioner also reconsidered the bail already granted by him to the 11 petitioners and cancel--led their bail, vide his order dated the 23rd of October 1970.
5. The petitioners have now come up to this Court under section 498, Cr. P. C.
6. It was contended on behalf of the petitioners that the view of the learned Additional Sessions Judge and the learned Assistant Commissioner, Jhang, that the provisions of the Criminal Procedure Code are not attracted to the case of persons arrested under the West Pakistan Maintenance of Public Order Ordi--nance, 1960, and that the ordinary criminal Courts have no jurisdiction to grant bail to them, is not correct. In view of this contention I issued notice to the Advocate-General, in response to which the learned Additional Advocate-General has appeared.
After studying the relevant legal provisions, he conceded that the view taken by the learned Additional Sessions Judge, Jhang, and the learned Assistant Commissioner, Jhang, is not correct and that bail can be granted to the petitioners under the provisions of the Criminal Procedure Code. I agree with the submission made by the learned Additional Advocate-General. The applicability of the procedure provided by the Criminal Procedure Code to offences created by laws other than the Pakistan Penal Code, is governed by section 5(2), while the forms which shall try offences created by other laws are provided by section, 29(2) of the Criminal Procedure Code.
These sections are reproduced below in their in extenso for ready reference, although only subsection (2) of each section is relevant for the purpose of this application :- "5(1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences, under any other law shall he investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the the being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
29(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.
(2) When no Court is so mentioned, it may be tried y the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the Second Schedule to be triable."
As the offences under sections 14 and 16 of the Maintenance of Public Order Ordinance, 1960 are punishable with 3 years' R. I., the relevant item in the Second Schedule would be the last but one item, which lays down that offences under other laws (i. e. Laws other than Pakistan Penal Code), which are punishable with imprisonment, for a period between 1 and 3 years shall be triable by the Court of Session or Magistrate Ist Class or Second Class. The above noted provisions (read with the relevant item of the Second Schedule of the Code) would, therefore, show that offences created by the West Pakistan Maintenance of Public Order Ordinance, 1960, are triable by the ordinary criminal Courts, in accordance with the procedure laid down by the Criminal Procedure Code, subject, of course, to the amendments made by sections 21 and 22 of the Ordinance. Section 21 of the said Ordinance provides that notwithstanding anything in the Code of Criminal Procedure the Government can, by notification, direct that in any area, all offences under the Ordinance shall be tried in accordance with the procedure prescribed for the trial of summons cases by Chapter XX of the Code of Criminal Procedure, subject in the case of summary trials to the provisions of sections 263 to 265 of the Code. In other words, offences under the Ordinance which are punishable with imprisonment for a term exceeding six months, which would, ordinarily be triable as warrant cases in accordance with the provisions of Chapter XXI of the Criminal Procedure Code shall be tried as summons cases, in accordance with the procedure prescribed by Chapter XX of the Code, subject of course to the condition that provisions of sections 263 to 265 of the Code would apply in the case of summary trial.
Similarly section 22 of the Ordinance provides that notwith--standing anything contained in the Code, every offence punishable under this Ordinance shall be cognizable and non-bailable. In other words all offences under the Ordinance shall be treated as cognizable offences even though according to the 2nd Schedule to the Criminal Procedure Code they may be non-cognizable offences and similarly offences which are otherwise bailable offences, would, if they are also offences under the Ordinance, be treat--ed as non-bailable and a person accused of such an offence would not be entitled to bail as of right under section 496, Cr. P. C.
Thus, except the 'above noted amendments, the Code of Criminal Procedure would apply to all cases under the Ordinance, as provided by subsection (2) of section 5 of the said Code. Such cases can, therefore, not only be tried but also be "otherwise be dealt with", according to the provisions of the Code.
7. Section 23 of the Ordinance provided that no proceed--ings or order made under the Ordinance shall be called in question in any Court, except as provided in the Ordinance itself and that no civil or criminal proceedings shall be instituted against any person for anything done or intended to be done in good faith, under the Ordinance. According to the order of the- learned Assistant Commissioner, dated, the 23rd of October 1970, this section excludes the jurisdiction of the ordinary criminal Courts to try substantive offences under the Ordinance. This view does not appear to be correct. As already observed the ordinary criminal Courts mentioned in the relevant item of the Second Schedule to the Criminal Procedure Code, are empowered to try cases under the Ordinance. A reading of the Ordinance itself will show that, no forum has specifically been provided to try, or to, "call in question" the offences under this Ordinance. It may be pointed out that section 3 of this Ordinance empowers the Government, or its delegatee in certain specified circumstances, to -arrest and detain a person in preventive custody without an trial, while section 5 of the Ordinance empowers the Government, its delegatee or the District Magistrate to pass certain orders to prevent the commission of any acts prejudicial to public safety, public interest of the maintenance of public order It is also provided in the Ordinance that no such order under section 3 or section 5 shall have effect for a period exceeding to months, unless the Board constituted under subsection (5) of section 3 of the Ordinance, -reports before the expiration of the said period, that there is in its-opinions sufficient cause for detention of a detune, beyond the period of to months or for continuation of an order under section 3, for a period beyond to months. What is intended by section 23 is that no preven--the action taken, or order made, should be called in question in any Court, except that the person concerned may call the same in question before the Board constituted under section 3(5) of the Ordinance.
8. The learned Assistant Commissioner, Jhang, is mistaken in supposing that section 3 of the Maintenance of Public Order Ordinance ousts 'the jurisdiction of ordinary criminal Courts and provides a special forum for the trial of offences under the said Ordinance. This section relates only to preventive deten--tion. As already pointed out the Board constituted under subsection (5) of section 3 is merely in the nature of an advisor body, which is required to report on the desirability propriety of detaining a person in preventive custody or continuing a preventive order under- section 3, for a period beyond to months. It is not meant to be a forum for the trial of substantive offences under the Ordinance. However, even the requirement of constituting a Board for submitting cases to it for a report has now been done away with by clause 7(2) of the Provision of Constitution Order, 1969. As no forum for the trial of offences under the Ordinance has been provided by the Ordinance itself, the provisions of subsection (2) of section 29 of the Code shall come into play and such offences shall be triable by the ordinary Courts in accordance with the provision of the relevant item in the second schedule to the Criminal Procedure Code. The same Courts can, therefore, grant bail to the accused, because as provided by subsection (2) of section 5 of the Cr. P. C. The cases under `other laws' cannot only be investigated or tried in accordance with provisions of the said Code but can also be `otherwise dealt with in accordance with its provision. Provisions of sections 497 and 498, Cr. P. C. Would, therefore, apply to such cases.
In this view of the matter, the learned Assistant Commis--sioner, Jhang, was not justified in cancelling the bail of the petitioners.
On merits the learned Additional Advocate-General opposes the grant of bail to the petitioners because, according to him, if enlarged on bail, they are likely to commit breach of peace again. ,
9. The learned counsel for the petitioners submits that, on the other hand, the petitioners were not actually the persons who had indulged in brick batting and that they were arrested merely because they were respectable and influential supporters of the candidate (Col. Abid Hussain) and it was thought that their arrest would have a salutary effect on his other supporters. He has also pointed out that no untoward incident has taken place since the incident on 15th of October 1970.
10. The offence committed by the petitioners is not a serious one and the trial Court had itself released the petitioners on bail. Apart from this no untoward incident has taken place since 15th October 1970. There is, therefore, no danger that if released on bail they will again disturb public peace. They are, therefore, released on bail in the sum of Rs. 5,000 (Rupees five thousand only) each, with to sureties each in the like amount; to the satisfaction of the Assistant Commissioner, Jhang.