This order will dispose of Criminal Miscellaneous No. 1899/69 and Criminal Miscellaneous No. 1911/69. In the former, two petitioners, namely, Khalid Mahmud and Muhammad Jahangir and in the latter seven petitioners, namely, Ghulam Ahmad, Ch. Zaffarullah Khan, Muhammad ldris Ahmad, 'Muhammad Latif son of Talia Mand, Abdul Hamid, Muhammad Latif son of Sher Muhammad and Ghulam Rasool have applied For bail before arrest.
2. The case was registered against the petitioners at Police Station, Gojra (District Lyallpur) on 31st March 1969 at about 8-30 p.m. Alleging the commission of offences under sections 148, 307 read with section 149, P. P. C., section 447 read with sections 149, 427, P. P. C. And contravention of -- Martial Law Order No. 1 and Martial Law Regulation No. 11. Petitioners Ghulam Ahmad, Zafarullah Khan, Mahmood son of Muhammad Nasib were alleged to be armed with. 12-bore guns, petitioner Ghulam Rasool with the .12-bore pistol, petitioner Idris with a .38 revolver, petitioners Muhammad Latif son of' Talia Mand, Latif son of Sher Muhammad, Hamid son of Taj and Khalid son of Muhammad Nasib were armed with kassis at the time of the incident. It is alleged that they threatened complainant Abdur Rahman Khan to leave the land's' in dispute. The complainant on seeing them armed, raised an alarm, whereupon petitioners Ghulam Ahmad and Ghulam -- Sarwar (not a petitioner before me) fired their guns at the, complainant, as a result of which the complainant and his companions received gunshot injuries. When the complainant attempted to take shelter in his kotha the petitioners Ghulam Rasool, Mahmood and Zafarullah fired from their weapons injuring Muhammad Asghar and Muhammad Nawaz. Petitioner Muhammad Idris and Yaqub (not a petitioner before me) also fired from their weapons which missed them. Thereafter the-- petitioners and others started firing at random. The complainant somehow escaped and lodged the report of the incident as-- afore stated. On the basis of the above report the case was registered and investigation was taken in hand.
3. Apprehending their arrest the petitioners have filed the --above petitions for bail before arrest.
4. The main question involved in these petitions is as to-- whether the High Court has jurisdiction under section 498, Cr. P. C. To grant bail before arrest in respect of offences created by Martial Law Regulation No. 11 and contravention of Martial. Law Order No. 1 punishable under Martial Law Regulation No. 25. The learned counsel for the petitioners has urged that the High Court has jurisdiction to grant bail under section 498, Cr. P. C. And in support of his contention has relied on sub-clauses (a) and (b) of clause (5) of the Proclamation of Martial Law as promulgated by the Chief Martial Law Administrator on 25th March 1969, subsection (2) of section 5, Cr. P. C. And' subsection (2) of section 29 of the Cr. P. C. It was finally urged that the High Court was not a Court within the meaning of the words `Criminal Court' as occurring in Martial Law Regulation No. 3 and that accordingly the bar as provided by sub-clause (a) of the said Regulation would not preclude the High Court from, exercising its jurisdiction under section 498, Cr. P. C.
5. Before I advert to the contentions as urged above it would be convenient to reproduce the relevant Martial Law Regulations and Orders on the subject as well as the Proclamation. Clause (3), of the Proclamation is as under:- "(3) Martial Law Regulations may-
(a) provide for setting up Military Courts for the trial and, punishment of any offence for the contravention of Martial Law Regulations or Orders and of offences under the ordinary law,
(b) prescribe any special penalties for offences under the ordinary law,
(c) authorise ordinary Courts to try and punish the contravention of any Martial Law Regulation or Order,
(d) bar the jurisdiction of ordinary Courts from trying any offence specified in this behalf."
"Notwithstanding anything contained in these Regulations the criminal Courts as by law established shall continue to exercise jurisdiction over persons accused of-
(a) offences other than offences created by these Regulations.
Clause (a) of this .Regulation authorises the criminal Courts to try offences other than offences created by Martial Law Regulations. The bar as contemplated by sub-clause (d) of clause (3) of the Proclamation of Martial Law was provided by clause (a) of Martial Law Regulation No. 3.
Accordingly, the trial of offences created by Martial Law Regulation was outside the jurisdiction of the criminal Courts as for the trial, a specific procedure was prescribed by Martial Law Regulation No. 2.
6. Martial Law Order No. 3 as promulgated by the Martial Law Administrator, Zone A has provided for the functioning of three Special Military Courts for the trial of offences under the Martial Law Regulations and Orders or such cases as may be brought before them. Thus, there is a complete set of procedure prescribed and the Courts have also been constituted to function by virture of the Martial Law Regulations and Orders.
7. Clause 7(i) of the Provisional Constitution Order, which is to the following effect, also provides the bar where there is a conflict between a Martial Law Regulation and the ordinary law or where any law tends to prejudice the operation of any Martial Law Regulation made by the Chief Martial Law Administrator or by any person having authority from him to make Martial Law Regulations:- "7(i)-Nothing in this Order or in any law shall prejudice the operation of any Martial Law Regulation made by the Chief Martial Law Administrator or by any person having authority from him to make Martial Law Regulations and where any Ordinance made under Article 4, or any other law, is repugnant to such regulation, the regulation shall prevail."
Thus, in view of the above it is absolutely clear that in the face of the above provision the High Court has no jurisdiction to grant bail by invoking section 498, Cr. P. C.
8. Even otherwise there is a bar for the application of the provisions of the Criminal Procedure Code in view of subsection (2) of section 1, Cr. P. C. The effect of this provision, was considered by a Division Bench of this Court in a case as reported in Gahena v. State (1). One of the points amongst other involved in that case was as to the applicability of section 498, Cr. P. C. Vis-a-vis the grant of bail to a person against whom proceedings were being taken under the West Pakistan Control of Goondas Ordinance, 1959. It was held in that case since a special procedure was prescribed in the Ordinance for proceeding against the person, the provisions of section 498. Cr. P. C. Will not be applicable in view of subsection (2) of section 1, Cr. P. C. I respectfully agree with the view as taken by the Division Bench. In view of the above state of law, the question of the application of subsection (2) of section 5 or subsection (2) of section 29, Cr. P. C. Cannot arise as the applicability of the provisions of the Code has been excluded. The question as to whether the High Court is not included within the meaning of the words `criminal Courts' can also not be of any avail as section 498, Cr. P. C. Is a provision in the Code and in view of the fact that the provisions of the Code have been excluded, section 498, Cr. P. C. Cannot be taken out of the context and invoked for the purpose of seeking the relief for the grant of.Bail. Reliance on sub-clauses (a) and (b) of clause (5) of the Proclamation is also not relevant as there is no dispute either with regard to the continuance of the laws or the jurisdiction of the Courts.
9. The learned counsel had also referred to me a decision reported in PLD 1959 Pesh. 49 for the purpose of showing that the High Court has jurisdiction to grant bail under section 498, Cr. P. C.
There the position was entirely different as the case was pending for trial in an ordinary Court which is not the position here.
10. Since the offences under the Penal Code have been committed in the course of the same transanction it will not be worthwhile to consider the grant of bail in respect of those offences when no bail can be granted in respect of offences created by Martial Law Regulations. In Criminal Miscellaneous No. 1902/69 my learned brother Muhammad Afzal Khan, J., has also held that the High Court has got no jurisdiction to grant bail in similar circumstances.
11. The upshot of the above discussion is that the High Court has no jurisdiction to grant bail under section 498, Cr. P. C. In respect of the offences created by a Martial Law Regulation. In the result, I would dismiss both these petitions.
…and 22 more citing cases