1. ' SHAFI MUHAMMADI, J.--- Petitioner Muhammad Umer is brother of Muhammad Qassim Bozdar who is stated to have been arrested first by the Sohwan Police in Crime No,62 of 1994 but was released on 21-9-1994 under section 169, Cr.P.C. It seems that his release was shown on papers only because he was handed over to Police Station Bhan Saeedabad in Crime. No,25/94. The present petition was filed on 26-9-1994. Notice was issued to the Advocate-General for 3-10-1994 to ascertain the facts but no information could be provided by him and the matter was adjourned to 10-10-1994. On that day, the learned A.A.-G. Informed the Court, on instructions, that the detenu was released by Police Station Bhan Saeedabad on 25-9-1994 i,e, one day earlier before the present petition was filed. The Court was not satisfied with this statement, hence A.S.I. Suleman of Police Station Bhan Saeedabad and S.D.P.O. Sultan Rajar were directed to be present in the Court on the next date of hearing. On 17-10-1994 S.D.P.O. Sultan Rajar appeared before this Court along with S.H.O. Malik Allah Dino and A.S.I. Muhammad Usman but they took, the same stand that the detenu had been released on 25-9-1994. Certain questions put by the Court, were sufficient to realize that these Police Officers were not speaking the truth. Hence they were asked to find out the whereabouts of the detenu if he had been released by them. On the same day, one information was received that the alleged detenue has been shifted to Police Station Mouladad, District Jacobabad. Hence we decided to depute learned Sessions Judge, Jacobabad to find out the truth of this information. The learned Sessions Judge after verification, informed that the detenue was in Police Station Mouladad, District Jacobabad but he has been shown arrested on 15-10-1994 in Arms Ordinance by showing recovery of one K.K. From him. It was also stated in the message that physical remand of the accused has been obtained from Civil Judge and F.C.M., Jacobabad.
2. On 24-1-1994, when the petition was tabled before us, the learned AA.-G. Confirmed the above facts and also stated that on account of the facts narrated before the Court, the Court has lost its jurisdiction because the detenue is now within the jurisdiction of Sukkur Circuit Bench. Therefore, the petition pending before this Court has become infructuous. When it was asked from the learned AA.-G., whether the offence under section 13 of Pakistan Arms Ordinance was bailable or not, the learned AA.-G. Was of the view that the offence was not bailable while the contention of the learned counsel for the petitioner was that the offence was bailable. It was also urged that the Circuit Bench, Hyderabad could not provide any relief to the alleged detenue on account of lack of jurisdiction. We, therefore, considered it proper to issue notices to the learned AA.-G. And DA.-G. For 14-11-1994 to address the Court on these important points. Syed Madad Ali Shah, Advocate from the Bar agreed to assist the Court as amicus curiae. After hearing the learned advocates in detail we have reached the following conclusions.
(i) The jurisdiction of "Benches of every High Court" established under Article 198 of the Constitution of Islamic Republic of Pakistan extends to the whole Province of Sindh and sometimes beyond that Province but in exceptional cases, as in cases of interim protective bail (1990 PCr.LJ 617).
(ii) High Court of Sindh Benches Rules, 1987 do not limit jurisdiction of Sindh High Court to a specified area within the territory of Sindh.
(iii) Offences punishable under section 13 of Pakistan Arms Ordinance, r 1965 are "not bailable".
3. Reasons for adopting such conclusions are detailed in the forthcoming paragraphs.
2. ' First of all we would like to deal with the question of jurisdiction.
3. ' Syed Madad Ali Shah has opined that Article 199(b)(i) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) and Rules 3 to 7 of "High Court of Sindh Benches Rules, 1987 have to be read together. The Article of the Constitution and the Rules are reproduced hereunder for our ready references: Article 199(b)(i): "directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; ' Rule 3: ' The Chief Justice may, with the approval of the Governor assign any area within the local limits of the jurisdiction of the High Court to a Bench or make modification in assignment of the area so made.
4. ' Rule 4: ' Except as provided hereinafter, all matters arising within the area assigned to a Bench shall be filed and disposed of by that Bench.
5. ' Rule 5: The Chief Justice may transfer any case or proceeding filed or pending at the .Principal seat of the High Court to a Bench or from one Bench to the Principal Seat of the High Court or another Bench.
6. ' Rule 6: The Chief Justice may for the purpose of expediency determine the case or class of cases arising within the area assigned to a Bench that may be filed and decided at the Principal Seat of the High Court.
7. ' Rule 7: ' The Chief Justice may order that any case pertaining to the area assigned to a Bench may be instituted and decided at the Principal Seat of the High Court."
8. ' It was contended by the learned amicus curiae and Mr. Abdul Ghani Shaikh, learned A.A.-G., that in the light of abovementioned Article and rules, it appears that areas of jurisdiction of each Bench are specified. Therefore, this Bench cannot pass any order in respect of the cases belonging to District Jacobabad because the said area falls within the jurisdiction of Sukkur Bench.
4. We are unable to agree with this contention because the words "within territorial jurisdiction" have been used not only for the Sindh High Court but are also attached with every High Court of every Province. On the other hand the rules mentioned above are limited only to the Sindh High Court. However, if all those rules are read together, then even the Principal Bench of a High Court is nothing more except only a Bench. Therefore, powers and jurisdiction of the Principal Bench or Circuit Benches are the same. Rules 3, 5, 6, 7, 8 and 10 start with the words "the Chief Justice may ...
9. While Rules 4, 9 and 12 have the words "shall" instead of "may". Rule 9, with the words "shall" runs as under:-- "The Judge or the most Senior Judge if more than one, for the time being sitting at the seat of a Bench shall exercise such powers of a Chief Justice as may be delegated by general or special order by the Chief Justice."
10. Hence it is clear that if only one Judge is working at a Circuit Bench, then he enjoys all powers of Chief Justice although he/she is not a Chief Justice and similarly if more than one Judges are working at a Circuit Bench, then the Senior Judge, may be Chief Justice or not, exercises all powers of Chief Justice as may be delegated by general or special order by the Chief Justice. We do not find any special order of the Honourable Chief Justice, according to which any or certain powers have been taken away from any of the Judge working at Circuit Bench. Therefore, the jurisdiction of any Circuit Bench is not less than the jurisdiction of the Principal Seat.
11. ' However, the jurisdiction of Principal Bench and a Circuit Bench is limited in certain aspects. For example, according to Rule 4 (containing the word "shall"):-- "All matters arising within the area assigned to a Bench SHALL be filed before and disposed of by that Bench."
12. This Rule makes it necessary that matters of specific area be filed before a specific Bench. On account of this Rule a matter belonging to Hyderabad cannot be filed before the Sukkur Bench or the Karachi Bench. But, if no Judge is sitting at any Circuit Bench, the same can be filed at the Principal Bench. Similarly if a Judge has partly heard any matter at Circuit Bench, which could not be disposed of finally, then he can hear the same matter at any other Bench where he starts working after leaving that Bench provided there is no inconvenience to any of the party. Sometimes it so happens, mostly in criminal cases, that one Bench grants bail to an accused in a case and co- accused moves bail application after the said Judge has left that Bench. In such case, the bail application must be heard by the same Bench provided the same Judge is still in Chambers of the same High Court. Thus, several exceptions can override the abovementioned rules in special circumstances.
13. From the above discussion, we have no doubt in our mind, that jurisdiction of every Circuit Bench established under Article 198 of the Constitution is the same as of the Principal Bench and the Sindh Benches Rules, 1987 do not limit this jurisdiction.
5. The second issue got importance on account of conflicting judgments of different High Courts as is clear from the following.
14. Lahore High Court: Learned Judges of Lahore High Court have viewed that offences under section 13 of Arms Ordinance, 1965 are "bailable". Reference can be made to the cases of Shafique v. The State 1983 PCr.LJ 1296 decided on 23-2-1983 by Muhammad Munir Khan, J. (as his Lordship then was), Muhammad Nawaz v. The State 1990 ALD 483(1), decided on 27-1-1986 by Muhammad Rafiq Tarar, J. (as his Lordship then was), Ashiq Hussain Shah v. The State 1990 PCr. L J 1773, decided on 22-4- 1990 by Sh. Muhammad Zubair, J., Karamdad Shah v. The State 1991 PCr.LJ 259, decided on 20-6- 1990 by Rashid Aziz Khan, J., and of Zulfiqar v. The State 1991 PCr.LJ Note 275 p.193, decided on 4-9- 1992 by a Division Bench comprising of Ishan-ul-Haq Chaudhry and Malik Muhammad Qayyum, JJ.
15. Sindh High Court: ' Judgments given by the learned Judges of Sindh High Court seem to be conflicting on this issue.
16. In the case of Bahadur v. The State 1989 PCr.LJ 1934, decided on 27-3-1989 by Sajjad Ali Shah, J. (as his Lordship then was and presently the Chief Justice of the Supreme Court), bail was granted to accused Bahadur after quoting the legal aspects of section 13 of Pakistan Arms Ordinance by mentioning Shafiq's case 1983 P Cr. L J 1296 and by taking into consideration the circumstances and facts of that case. But bail was refused in the case of Shabbir Khan v. The State 1990 P Cr. L J 1744, decided on 5-7-1989 by Abdul Rahim Kazi, J. Who treated offence under section 13 of Pakistan Arms Ordinance to be "not bailable" in Sindh.
17. High Court of Balochistan: ' In the case of Haji Muhammad v. The State 1991 M LD 6, decided by Munawar Ahmed Mirza, J. On 31-7-1991, it was held that offences covered by section 13, Arms Ordinance were non-bailable and Shafiq's case (supra) of Lahore High Court was dissented from. Although learned Judge of Balochistan High Court had given this decision under an impression that Act LII of 1973 had not been brought to the notice of learned Judge of Lahore High Court yet, with due respect, such an impression does not seem to be factually correct because there is mention of Act LII of 1973 in Shafiq's case (supra) (but incorrectly quoted as Act LXII of 1973 in Haji Muhammad's case as reported in 1991 M LD 6).
6. If a question of law and justice had been a "game of numbers", like the costly play of elections, we would have declared that offences under section 13 of Arms Ordinance, 1965 are bailable because majority of Judges in Chambers of Superior Courts believe so.
18. ' It is settled principle of interpretation that a penal statute should be strictly construed and if there is any doubt, then it has to be construed in favour of the subject. Moreover, true interpretation of every law requires deep analysis of historical background and aims of its promulgation, with reference to preamble to understand the wisdom of law-giver (as discussed in PLD 1989 Kar. 157 and PLD 1992 SC 353). According to Salmond's Jurisprudence "Interpretation or Construction is meant the process by which the Courts seek to ascertain the meaning of the Legislature through the medium of the authoritative forum in which it is expressed".
19. ' Unfortunately most of the judgments authored by learned Judges of Lahore High Court, except Shafiq's case (supra), were passed sub silentio regarding interpretation of section 13 of the Pakistan Arms Ordinance with reference to its being bailable or not-bailable. Hence they are neither authoritative, nor persuasive, for any other Judge of a Superior Court. So far as the remaining referred judgments are concerned, we were not persuaded by them on account of the reasons as given in the forthcoming paragraphs.
7. Repeal of the Arms Act, 1878 (XI of 1878), hereinafter referred to as the repealed Act) was followed by enforcement of the (West Pakistan) Arms Ordinance (XX of 1965). It was published in Gazette of West Pakistan, Extraordinary on 8th June, 1965 and PLD 1965 W.P. Statutes 381 and was renamed as the Pakistan Arms Ordinance by Federal Act, 38 of 1974 by substituting the words "Pakistan" for words "West Pakistan" (hereinafter referred to as "the Ordinance".
20. ' Section 29 of the Ordinance runs as under:-- "The Arms Act, 1878 (XI of 1878) as in force in the Province of West Pakistan together with all enactments amending or modifying the same, except the provisions thereof relating to manufacture (including conversion), export or import of arms, ammunition and military stores, is hereby repealed."
21. ' The Ordinance, with certain modifications is in substance a reproduction of the repealed Act. In terms section 13 of the Ordinance corresponds to section 19 of the repealed Act. Thus none of the provisions of the repealed Act had any force in the field after the enforcement of the Ordinance except sections 5 and 6 as they were expressly mentioned in section 29 of the Ordinance which are asunder:--.
22. ' Section 5. Unlicensed manufacture, conversion and sale prohibited. --No person shall manufacture, convert or sell or keep offer or expose for sale, any arms, ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby.
23. ' Nothing herein contained shall prevent any person from selling any arms or ammunition which he lawfully possesses for his own private use to any person who is not by any enactment for the time being in force prohibited from possessing the same; but every person so selling arms or ammunition to any person other than a person entitled to possess the same by reason of an exemption under section 27 of this Act shall, without unnecessary delay, give to the Magistrate of the district or to the officer-in-charge of the nearest police station, notice of the sale and of the purchaser's name and address.
24. ' Section 6. Unlicensed importation and exportation prohibited.--No person shall bring or take by sea or by land into or out of Pakistan any arms, ammunition or military stores except under a licence and in the manner and to the extent permitted by such licence.
25. Importation and exportation of arms and ammunition for private use. --Nothing in the first clause of this section extends to arms (other than cannon) or ammunition imported or exported in reasonable quantities for his own private use by any person lawfully entitled to possess such arms or ammunition; but the Collector of Customs or any other officer empowered by the Central Government in this behalf by name or in virtue of his office may at any time detain such arms or ammunition until he receives the orders of the Central Government, thereon.
26. Explanation.--Arms, ammunition and military stores taken from one part of Pakistan to another by sea or across intervening territory not being part of Pakistan are taken out of and brought into Pakistan within the meaning of this section.
27. ' Hence, there remains no doubt that section 19 of the repealed Act had been paralysed to death for ever except its one part containing sections 5 and 6 on account of section 29 of the Ordinance.
28. ' It seems that in relevant column of Schedule II of the Code of Criminal Procedure under the heading "Offences against other laws", the words "the Arms Act, 1878" were continued to be printed even after 1965 when the Pakistan Arms Ordinance came into force.
29. ' On 28-5-1971, in pursuance of the Martial Law Proclamation of 25th March, 1969 read with the Provisional Constitution Order, the Governor of the Punjab promulgated Ordinance IX of 1971 which is known as "Code of Criminal Procedure (Punjab Amendment) Ordinance, 1971". Subsection (iii) of section 2 of the said Ordinance runs as under:-- "Under the heading 'offences against other laws' against the said entry, in column 5, for the words and commas 'the Arms Act, 1878, section 19', the words and commas 'section 13 of the West Pakistan Arms Ordinance, 1965' shall be substituted."
8. How a dead and buried (repealed) Ordinance could be treated alive in 1971 after its death in 1965?
30. ' It must be known to authorities of Martial Law of that time because it can be their exclusive wisdom of law to treat something alive, even if it is dead or declare something dead, even if it is alive.
31. ' Such kind of legislation could be astonishing for us if there had been no other examples of such nature.
32. ' For example sections 497 and 498 of Pakistan Penal Code were repealed by the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 but they are still mentioned in section 156(4) of the Code of Criminal Procedure.
33. ' The Evidence Act, 1872 has been assassinated (repealed) by section 166 of the Qanun-e- Shahadat, 1984 since 28th October, 1984 but section 145 of the Evidence Act is still the part of section 162(1), Cr.P.C.
34. ' Sections 32 and 27 of Evidence Act are still mentioned is section 162(2), Cr.P.C.
35. ' Section 24 of the Evidence Act is still found in section 163, Cr.P.C. Sections 145 and 161 of the Evidence Act have not been removed from section 172(2), Cr.P.C.
36. ' There are only few examples to show the exclusive wisdom of Martial Law Authorities who had performed the function of legislation with hot haste and cold research with certain motives and same seems to be the position of section 19 of the Arms Act, 1878 in 1971 when it was dead but was replaced by section 13 of the Pakistan Arms Ordinance, 1965 by the Governor of the Punjab who introduced Code of Criminal Procedure (Punjab Amendment) Ordinance IX of 1971 (hereinafter referred to as the Punjab Ordinance (IX of 1971).
37. ' Under these circumstances, the legal position, which can emerge out of above discussion may be as under:--
(i) If section 19 of the Arms Act is treated to be non-existing after 8th June, 1965 due to section 29 of the Pakistan Arms Ordinance, 1965 which had replaced the same by its corresponding section 13 of the Pakistan Arms Ordinance, 1965, then Punjab Ordinance IX of 1971 has to be declared meaningless with consequences of treating section 13 of the Arms Ordinance to be "not bailable" on account of enhanced sentence even in the Province of Punjab.
(ii) If the Punjab Ordinance IX of 1971 has some force in it, in spite of the fact that section 19 of the repealed Act was non-existing when it was repealed then section 13 of the Arms Ordinance remains "bailable" but only in the Province of Punjab.
38. ' In the light of above discussion, we respectfully differ from the conclusion arrived at by Mr. Muhammad Munir Klan, J. (as his Lordship then was) in the case of Shafique (supra) because the I gal position of non-existing section 19 of the repealed Ordinance by section 29 of the Pakistan Arms Ordinance was not taken into consideration. So far as remaining referred judgments of Lahore High Court are concerned it can be safely said that none of their authors discussed this legal position are mostly relied upon Shafique case. It is also notable that at the time of decision in Shafiq's case Act LII of 1973 PLD 1973 Central Statutes 552 had already come into existence with effect from .5-7- 1973 and sentence of section 13 of the Pakistan Arms Ordinance had been raised from 3 to 7 years.
39. ' In 1989 certain amendments were brought in the Pakistan Arms Ordinance. Two new sections i,e, 13-A and 13-B were inserted after section 13 and penalty if section 8 and section 9 in respect of cannon or automatic weapon was extended to 10 years but not less than three years by an Ordinance XVI of 1988 promulgated on 13-10-1988 (PLD 1989 Central Statutes 11). It seems that the said Ordinance was not laid before the National Assembly as a Bill under Article 89(3) of the Constitution so it stood repealed after the expiry of four months i,e, on 13-2-1989. Thus the cases under section 13, Pakistan Arms Ordinance registered between 13-10-1988 and 13-2-1989 were affected by Ordinance XVI of 1988. But the legal position becomes the same after 13-2-1989 as it was before 13-10-1988. On account of this reason, that impression of the sentence of section 13, Arms Ordinance has been increased to 10 years (1989 PCr.LJ 1939), was limited to that specific period only.
9. Another important aspect related to the point in issue can also be taken into consideration with reference to the promulgation of Act I of 1993 i,e, Suppression of Terrorist Activities (Special Courts)
40. (Amendment) Act, 1993 (PLD 1993 Central Statutes 192/193) introduced on 27-1-1993 by means of which subsection (8) of section 5-A of S.T.A. (Special Courts) Act, 1975 (XV of 1975) was Modified.
41. New subsection (8) of section 5-A of S.T.A. (Special Courts) Act, 1975 is as under:--
(8) An accused person shall not be released on bail by a Special Court, or by any other Court. If there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released.
42. ' We could not find any difference between subsection (8) existing prior to Ordinance XVI of 1988 and in its present form but the effect of this subsection is obvious. Under section 4 of the said Act, the scheduled offences (as specified in section 2(6) of the Act), would be exclusively triable by a Special Court and para. (c) of the Schedule includes:--
(c) Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No, XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket; Hence there remains no doubt that offences under sections 8, 9 and 10 punishable under section 13 of the Pakistan Arms Ordinance are "not bailable" at least in matters pending S.T.A. Courts, after introduction of subsection (8) of section 5-A of S.TA. (Special Courts) Act, 1975 by way of Act of 1993 (and not Ordinance) in respect of certain types of a cannon, grenade, bomb, rocket or a light or heavy automatic, semi-automatic weapons such as Kalashnikov, a gun or any rifle or any other type of assault rifle. Although the Arms Act, 1878 (XI of 1878) has also been mentioned in the Schedule yet none of its provisions exists except sections 5 and 6 because the remaining provisions had been paralysed to death after they were poisoned by repealing section 29 of the Pakistan Arms Ordinance.
43. ' On account of these reasons, we are of the opinion that the decisions of Lahore High Court in the cases of Ashiq Hussain Shah 1990 PCr.LJ 1773 and Zulfiqar 1991 PCr.I.J 275 do not possess any force in field after Act 1 of 1993.
10. It is a matter of great importance and needs authoritative decision whether all those cases mentioned in the Schedule of S.TA. (Special Courts) Act, 1975 are triable exclusively by the S.TA.
44. Court at the discretion of the State or only those cases be sent to such Courts which involve acts of sabotage, subversion and terrorism as mentioned in preamble of the Act because preamble is a source to ascertain the intention of the legislature although it cannot enlarge or abridge the meaning of the enacting parts of the Act. As no such point has been raised before us, therefore, we are not commenting upon the same.
10. It has been mostly observed by us that when any petition supported by any affidavit, was filed and notices were issued to the State, then only statement is submitted' by Police Officers through Provincial Law Officers instead of filing any counter-affidavit in respect of allegations levelled in the petitions. In the present case also, petitioner Muhammad Umar, brother of the accused/detenue Muhammad Qasim, has alleged that detention of his brother was due to the Chief Minister of Sindh on account of his political affiliation with the Muslim League and therefore, S.P. Dadu D.S.P. And S.H.O. Sehwan (District Dadu) and S.H.O. Police Station, Bhan Saeedabad, who were made respondents in this petition, were doing everything at the instance of the Chief Minister. All such allegations levelled in any petitions may or may not be true but, if no counter-affidavit is filed on behalf of the respondents police officials, then High Court is left with no other alternative but to presume that the allegation so levelled, are true. The State council must not take it as granted that the verbal statement given by him is sufficient to demolish the effects of an affidavit.
11. Under these circumstances we were inclined to grant every possible relief if there had been any request for the same:
(a) The prayer made in the petition is limited only three reliefs i,e,--
(i) directions to the respondents to provide details of case;
(ii) production of the detenue before this Court;
(iii) directions to the respondents to admit the detenue in L.M.C. Hospital as he was stated to be a chronic heart patient.
45. ' In response, the prosecution has disclosed that the detenue has been released in certain cases but he is now in custody in a substantive offence as stated in the foregoing paragraphs.
46. ' Due to abovementioned reasons no relief can be granted in respect of second prayer. So far as the third prayer is concerned, we order that the detenue Muhammad Qasim should be immediately admitted in Civil Hospital, Jacobabad and if his treatment is not possible in that Hospital he must be shifted to any other hospital under the directions of doctors of the Hospital.
(b) The learned counsel 'is at liberty to move bail application or any application under section 249- A, Cr.P.C. Before the trial Court, if he is so advised. The trial Court is required to dispose of those application/applications within one week after receiving the same. If the learned advocate is aggrieved by any order of the trial Court, he can approach the Circuit Bench at Sukkur. The petition is ordered to be sent to Sukkur Circuit Bench to save a citizen from filing any fresh petition where the matter would be fixed before D.B. On 5th December, 1994 for further proceedings. The Investigating Officer of this case against accused Muhammad Qasim belonging to Police Station Mouladad and S.D.P.O. Of that area are required to be present before Sukkur Bench on that date to satisfy the Court about the factual position of the case. The office is directed to send the copy of para. 11 of this order to S.S.P., Jacobabad who would ensure the presence of S.H.O./I.O. Of the case before Sukkur Circuit Bench on December 5, 1994. Orders accordingly.