' Through this common order, I intend to dispose of Criminal Bail Application No,1077 of 1998 (Muhammad Qasim v. The State) and Criminal Bail Application No,1148 of 1998 (Haji Baig v. The State), as both these bail applications arise out of the same F.I.R.
2. On 25-7-1998, at about 17-30 hours, an F.I.R. Was lodged by one Ghulam Hussain with Tando Muhammad Khan police station alleging therein that in between the nights of 24th July and 25th July, 1998, while he was taking evening meal with his family members, he saw that a house was burning outside his Otaq; that he went running outside and in the light of fire saw both the applicants/accused standing there and setting that place on fire; that he heard Hakal from Qasim Samoon and Haji Baig Halo to put the Otaq on fire as well; that both the accused also threw bottles of kerosine and after putting Otaq on fire, ran away. It is further alleged that the complainant went to his Nekmard, who attempted to resolve this dispute though negotiation but they failed; therefore, the complainant was directed to lodge this FIR. In the end, it is admitted by the complainant that there is a matrimonial dispute between the parties, for which such criminal acts were committed by the applicants/accused.
3. I have heard Mr. Nibhando Khan, Advocate for applicant/accused Haji Baig and Mr. Muhammad Qasim Mirjut, A.A.-G. For the State. Applicant/accused Muhammad Qasim, who is on interim pre- arrest bail, was not able to explain reason for non-appearance of his counsel Mr. Lal Bux Memon, who comes from Hyderabad. On 2-10-1998, while admitting applicant/accused Muhammad Qasim to interim pre-arrest bail, following order was passed:-- "2-10-1998. Mr. Lal Bux Memon advocate along with applicant/accused Qasim.
' Earlier a pre-arrest bail application filed by the applicant/accused was dismissed vide order, dated 17-9-1998 by the learned Sessions Judge, Hyderabad in the capacity of Special Judge (S.T.A.), Hyderabad on the ground that there is only one allegation that the accused threw kerosine oil on the complainant which is not a scheduled offence. Thereafter, the said bail application was transferred to the learned IV Additional Sessions Judge, who on 25-9-1998 dismissed the pre-arrest bail of the applicant/accused on the ground that it is a scheduled offence. According to the learned counsel for the applicant/accused the prosecution has filed challan before the Additional Sessions Judge, Hyderabad and therefore this Court is competent to grant pre-arrest bail. Reliance is placed on the case Bago and others v. The State 1996 PCr.LJ 1818. Since two Courts have declined to entertain bail applications of the applicant/accused it is not clear as yet where applicant/ accused will be tried, I admit the applicant/accused Muhammad Qasim son of Muhammad Hashim on pre-arrest bail upon furnishing a solvent surety of Rs,100,000 (Rupees one Lac) with P.R.
Bond of like amount to the satisfaction of the Additional Registrar of this Court. Issue notice to the Advocate-General Sindh as well as to S.H.O. Police Station Tando Muhammad Khan with direction to file a statement as to whether the trial is pending and with the copies of final report filed under section 173, Cr.P.C. To come up on 19-10-1998.
' It was argued by Mr. Nibhando Khan that there is an unexplained delay of 41 hours in lodging F.I.R.; that both the witnesses have filed their affidavits before the trial Court exonerating both the accused/ applicants from the allegations contained in the F.I.R.; that no recovery was effected from the scene of alleged incident and that the learned Courts below have declined to entertain bail plea of his client on the ground of want of jurisdiction. It was further argued that, pending determination of the question of jurisdiction, the applicant is entitled for bail in view of rule laid down by a Division Bench of this Court in the case of Bago and 2 others v. The State (supra). He has placed further reliance on the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34. In view of this legal position and the facts of the case Mr. Muhammad Qasim Mirjut, A.A.-G. Concedes to the grant of bail application.
5. It is an admitted position that the learned Sessions Judge declined to grant bail to accused on the ground that the matter is pending before the IV Additional Sessions Judge, Hyderabad, who again refused to entertain the bail plea of the accused on the ground that since kerosine oil was used in commission of alleged offence, therefore, it is a scheduled offence as mentioned in Suppression of Terrorists Activities (Special Courts) Act, 1975 and that he has no jurisdiction.
According to learned A.A.-G., the prosecution has filed challan before the Court of Sessions and not before the Special Court, constituted under the Act of 1975. This makes the case of the applicant a case of hardship and I am of the considered view that the rule laid down in the case of Bago (Supra) fully attracts in the present case. Simply on this ground, both the accused/applicants are entitled to bail.
6. Two amendments were made in section 436, P.P.C., one by section 18 of the Law Reforms Ordinance, 1972 (see PLD 1972 Central Statutes 457) and another by Criminal Law Amendment Ordinance, 1980 vide section 12 (see PLD 1980 Central Statutes 58). Before and after these amendments, section 436, P.P.C. Was as follows:-- Before amendments.
"436. Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property; shall be punished with transportation for life, or with for a term which may extend to ten years, and shall also be liable to fine."
After amendments.
"436. Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place or worship or as a human dwelling or as a place for the custody of property shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than three years nor more than ten years, and shall also be liable to fine."
7. Even prior to both the amendments, the maximum punishment provided was transportation for life i,e, 20 years and the second punishment provided was for the term extending to ten years, but as a result of the two amendments as mentioned above, now three punishments have been provided; one in respect of minimum punishment which is for three years and there are two maximum punishments one for imprisonment for life and the other for ten years. If the sentence of life imprisonment is taken out of the considerations the case of the applicant would fall outside the prohibitory clause. It is settled law that a criminal provision is to be interpreted in a manner which may be beneficial to an accused. In the case of the State v. Syed Qaim Ali Shah 1992 SCMR 2192 at 2216 it was held by the Honourable. Supreme Court that a statute which transgresses on the rights of a subject regarding his person or property should be construed, if possible, which may preserve such rights and that if two views of a provision of a penal statute are possible, one which favours an accused person be preferred over the other. Further reliance is placed on a Full Bench decision of the Lahore High Court in Mazhar Ali Khan v. The Governor of the Punjab PLD 1954 Lah. 14; Yousuf Ali Chowdhury and others v. The Province of East Pakistan and another PLD 1959 SC 467; Rehmat Aslam v. The Crown PLD 1952 Lah. 578 and Mst. Zainab v. Kamal Khan alias Kamla PLD 4990 SC 1051.
In these circumstances, for this bail purposes, I am C inclined to treat maximum punishment that of ten years keeping in view the peculiar circumstances of the case. This redundancy requires to be clarified by the our, ,Legislators as early as possible.
8. In view of the above discussion, the interim pre-arrest bail granted to accused Muhammad Qasim vide order dated 2-10-1998 was confirmed on 23-11-1998 through a short order on the same terms and conditions while accused/applicant Haji Baig was ordered to be released on bail upon furnishing one solvent surety of Rs,1,00,000 (Rupees One lac) with P.R. Bond of like amount to the satisfaction of the Additional Registrar, Circuit Court, Hyderabad. Above are the reasons for the said short order.