ORDER SHAFI MUHAMMADI, J.- Applicants Muhammad Hanif and Muhammad Iqbal are facing trials in different cases out of which one is arising out of an FIR No. 224 of 1994 under section 20 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered on 8.7.1994 at P.S. Korangi Industrial Area Karachi East lodged by complainant Syed Muhammad Shafiur Rehman's who is factory Manager of Thormax Pakistan (Pvt) Ltd. Where the incident of robbery had taken place.
2. According to his statement when one Chowkidar of the factory informed him about the incident, he, at once, reached the factory were Chowkidar Mehar Khan narrated him the details of robbery.
The complainant, on checking, found several articles missing from the factory including shot gun No. 2339195 and 2339221, made in U.S.A., besides foreign currency, local currency, calculators, packet computer etc. Hence he lodged the FIR mentioned in para 1 above.
3. After about two months of this incident of robbery, the present applicants were arrested in FIR No.542/94 registered at P.S. Korangi u/s 432/448 P.P.C, and 337 L Qisas & Diyat Ordinance read with section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 in respect of a dispute over a mosque involving sectarianism and firing by members of one sect over the other.
During investigation of this new case, weapons were recovered from the present applicants. These weapons were found to be the same taken away during the incident of robbery committed in the factory, which is subject matter of this Order in hand. Recovery of weapons resulted in lodging two separate FIRs under section 13(d) of Arms Ordinance, one against each, against the present application. From the record tabled before this court it appears that the applicants were granted bail in the case registered against them under Section 13(d) of Arms Ordinance as well as in the case arising out of FIR No.542/1994 but their bail application, moved before the learned Sessions Judge (East) Karachi in FIR No.224/1994, was dismissed on 20th October, 1994. After that failure, present application was preferred before this Court.
4. The learned counsel for the applicants has taken a stand that the applicants have already been granted bail under section 13(d) Arms Ordinance, and so far as recovery of weapons is concerned, even if the same is believed, the case of the applicants would, at the most attract section 411 PPC for which punishment is only 3 years or fine or both. The submission of the learned counsel does not seem to be correct. The combined effect of all the cases attract, especially with regard to the present case of robbery, section 412 PPC instead of section 411 PPC for which punishment is 10 years and fine. Therefore, the case of the applicants falls within the clutches of prohibitions of section 497(1) Cr.P.C. Besides the above, if the case of the applications was attracting section 411 PPC, even then the applicants were not entitled to be granted bail as a right. It is not necessary that if the case of any accused falls out of prohibitory clause, then, he becomes entitled to be released on bail in each and every case as a right.
5. Before discussing the contentions raised by the learned advocate in respect of applicability of section 411 PPC or 412 PPC or section 20 of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979,1 would like to deal with the conduct of Magistrate (A.C. & F.C.Ms) Karachi who had granted bail to the applicants by passing a stereo-typed routine order without discussing the background and merits of the case only by saying that "the offence does not fall within the prohibitory clause, accordingly bail is allowed to accused". If this had been the correct approach, then all non-bailable offences, not falling within the prohibitory clause should be treated practically bailable, on matter the statutes declare that offences to be "non-bailable".
6. From the contents of FIRs under section 13(d) of Arms Ordinance it is clear that the present applicants were arrested basically in another case which was related to a dispute over a "mosque" and during the investigation of that case, the fire arms, robbed from the factory, were recovered from the present applicants. In these circumstances the Magistrate was bound to give details of the connected cases as well as the reasons for granting bail to them instead of passing such stereo-typed orders. As the FIRs registered against the applicants under Arms Ordinance contained some details of other case also, therefore, ignoring the consequences and effects of that case by the learned Magistrate was not only unappreciated but also most alarming for the society as well as for the 'law- enforcing agencies. It is on account of such conduct of the Magistrate that the law and order situation in our society is going from bad to worse because the police and law enforcing agencies arrest accused persons who are responsible for destroying peace of the country but the learned Magistrates go on releasing them on bail without passing any speaking order as was done in the cases of present applicants.
7. Prior to the practice of lodging separate FIRs under any provision of the Arms Ordinance, all such provisions were also mentioned along with other sections applicable to the main offence in one FIR.
For example, if an accused was arrested in a murder case and a revolver was recovered from him as crime weapon, then FIR was usually lodged under section 302 PPC read with section 13(d) Arms Ordinance. At that time, if bail was granted to any accused under section 302 PPC, he was also granted bail in section 13(b) Arms Ordinance. However, if he was refused bail in the main section, then he was also refused bail in section 13(d) Arms Ordinance. But the learned Magistrates have made it a routine now to grant bail in all such cases after the practice of lodging separate FTRs started besides the FIR in main case. This practice is creating several complications. For example, if an accused is acquitted in a case under section 13(d) of Arms Ordinance by a Magistrate, then it would also affect the main case pending before any other court in which those weapons were recovered. It is, therefore, necessary that the Magistrates must take into consideration all the factors with reference to main connected cases at the time of granting or refusing bail to the accused persons in all those cases which attract any provision of Arms Ordinance.
8. Main consideration before the Courts, in all such cases which do not fall within the prohibitory clause section 497(1) Cr.PC., must be the nature of offence and not the quantum of punishment. If an offence affects the society at large, the courts must decline to grant bail to the accused persons except in exceptional circumstances. For example, if an accused is arrested under section 153-A PPC, the punishment of which is only 5 years, and the Courts go on releasing such person on bail under this concept that it does not fall within the prohibitory clause, then such person would continue his struggle to create enmity between different groups to destroy peace of the society.
Similarly, an offence of defiling or unauthorisedly removing the National Flag of Pakistan from Government Building attracts punishment of three years or fine or both under section 123-B PPC and the offence is "not-bailable". If the Magistrates go on releasing such accused persons under this concept that as the offence does not fall within prohibitory clause, then such accused would never hesitate to burn the flag or tear the same into pieces. As this offence not only injuries the feelings of whole Nation but also disturbs the peace of whole society, therefore, such person must not be granted bail, although its punishment does not fall within prohibitory clause. The learned Magistrates, therefore, must be very careful while granting bail to such accused persons on the strength of widely used sentences such as:- 'Bail be a rule and refusal exception.'
'Rule must be bail and not jail'.
'Matter of bail should not be stretched in favour of prosecution'.
'Challan has been submitted so accused is not required for any other purpose'.
All these generalizations were mostly used by the superior courts in those cases where only individuals were affected. These sentences were not applied in those cases where the acts of accused persons had affected the peace of society at large or could be the cause of creating problem law an order.
9. So far as the case. Of present applicants is concerned, it was not of such nature where the Magistrate could be expected to grant bail in offences under section 13(b) of the Arms Ordinance because, they were arrested in a case involving religious enmity based on sectarians. Several innocent persons have been killed by now and then, even in the mosques, in the recent past, on account of religious enmity between different sects. Moreover, the police does not apply proper sections to book such culprits property as was done in the case of present applicants. FIR No. 542/94 registered against the applicant does not contain section 153-A PPC or section 295-A PPC for the reasons best known to the( police. Even the learned 1st Addl. Sessions Judge, Karachi East did not take into consideration this important aspect to see whether proper sections were applied or mentioned in the FIR, in accordance to its contents or not. Order passed by the learned Additional Sessions Judge on 4th of October, 1994 clearly show that he was fully aware of the facts that FIR contains only those sections which were bailable and moreover those sections were not applicable to the facts mentioned in the FIR. Being a Muslim, the learned Addl. Sessions Judge knew it that Mosque was not a private property of individuals but had to be treated as the House of Allah Almighty, and no special sect could be allowed to use such place as "Religious Business Centre" to promote feeling of enmity between different sects. Such kind of artificial ignorance by the concerned officials or the Courts damages none else except their on competency or reputation.
10. The point discussed above can be further elaborated with the help of section 420 PPC and section 406 PPC. The punishment for both these offences is 7 years but offence under section 420 PPC is bailable while an offence under section 406 is not-bailable. Similarly an offence under section 302 Qisas & Diyat Ordinance is compoundable but offence under section T7(4) Offence Against Property (Enforcement of Hudood) Ordinance, 1979 is not compoundable, although sentence of both offences is death. The reasons of this difference is obvious that offences under section 420 PPC or section 302 Q & D Ordinance affect individuals while offences u/s 406 to 409 PPC or u/s 17(4) EHO affect the society at large. If an offence affects individuals then it may be bailable or compoundable but if an offence affects a society at large adversely, then it would neither bailable nor compoundable.
11. With reference to the case of present applicants it is necessary to point out that in most of the statute books, following lines were found written in Schedule II of the Code of Criminal Procedure in the respective column related to section 511 PPC:- "except in cases under the Arms Act, 1878 Section 19 which shall be bailable."
These words created some confusion. The Arms Act 1878 was repealed when Arms Ordinance XX of 1965 was introduced (PLD 1965 W.P. Statutes 381) with the result that section 19 of the Arms Act also stood repealed by section 29 of the Arms Ordinance,1965. The confusion was further strengthened when Governor of Punjab promulgated Ordinance IX of 1971 (Code of Criminal Procedure, Punjab Amendment Ordinance, 1971) which stated that "for the words and commas" The arms Act.1878, section 19", the words and commas "Section 13 of on the West Pakistan Arms Ordinance, 1965 shall be substituted". It was a strange Ordinance because "The Arms Act 1878" had become dead in 1965 after it was repealed by section 29 of the Arms Ordinance, hence section 19 of the dead Arms Act could not become alive in 1971 i.e. After 6 years of its death. Thus I have no doubt in my mind that section 13 of the Arms Ordinance is not bailable and if Ordinance IX of 1971 has any legal value, it would only be applicable in the Province of Punjab but not in the Province of Sindh.
12. In the light of above discussion, I am not inclined to grant bail to the present applicants. Result- artly their application for bail is dismissed.
13. Copy of this order be sent to the I.G. Police Sindh and to all Commissioners working in Sindh so that they could circulate the same to their sub-ordinate officials & Courts with instructions that the concerned police officials must register FIRs with details by mentioning proper sections and details of connected cases in the same in future and the Magistrates should avoid to pass stereo-typed routine orders as observe above. Copy of this order be also sent to all District & Sessions Judges in Sindh who are required to send its copies to their sub-ordinate Courts with instructions that whenever any order is passed by them on the basis of some judgments of the superior Court then the judgment be property referred and discussed so that it could be seen whether the facts mentioned in the referred judgments were similar or applicable to the case in their hands or not.