a) Criminal Procedure Code (V of 1898)--
---S.497--Prevention of Anti-National Activities Act (VII of 1974), Ss.2 & 13--Suppression of Terrorists Activities (Special Courts) Act (XV of 1975), S.5(6)--Penal Code (XLV of 1860), Ss.123-A & 124-A- Bail application,,-Accused charged under Ss.123-A & 124-A, Penal Code, and S.13 of Prevention of Anti-National Activities Act, 1974- Offences falling within ambit of sub-cls.(i) & (ii) of cl.(a) of S.2 of Act, 1974 and triable exclusively by a Special Court constituted under Suppression of Terrorists Activities (Special Courts) Act, 1975- Necessary complaint in respect of said offences against accused filed under sanction of Provincial Government and a copy of complaint placed on record--Special Court having exclusive jurisdiction in respect of said offences, bail application before High Court being infructuous was dismissed.
Moulana Dost Muhammad v. The State 1978 P Cr.L J 184; Muhammad Gul and others v. The State 1985 P Cr.L J 205; Gul Muhammad and others v. The State 1987 P Cr.L J 737; 1980 PCr.LJ 1006; 1987 P Cr.L J 811; A I R 1919 Mad. 968; A I R 1936 Pesh. 66; P L D 1962 S C 397; P L D 1975 Lah. 126 and P L D 1978 Kar. 108 ref.
(b) Criminal Procedure Code (V of 1898)--
--S.497--Penal Code (XLV of 1860), S.153-A--West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16--Bail, grant of--Accused charged with scheduled and unscheduled offences- Complaint filed with Special Court for scheduled offence--Course to be adopted by prosecution in respect of unscheduled offences under S.153-A, Penal Code, and S.16, West Pakistan Maintenance of Public Order Ordinance, 1960 being uncertain, and unscheduled offences punishable with imprisonment for three years or fine or both, bail was granted to accused in respect of unscheduled off-races.
Mir Muhammad Sheikh for Applicant.
Sarfraz Ahmed, A.A.-G. for the State.
Date of hearing: 25th March, 1987.
MUMTAZ ALI KHAN BHUTTO VS THE STATE1987 M L D 1434[Karachi]Before Ally Madad Shah, JMUMTAZ ALI KHAN BHUTTO and 2 others--ApplicantsversusTHE STATE--RespondentCriminal Bail Application No.71 of 1987, decided on 25/03/1987.
a) Criminal Procedure Code (V of 1898)--
---S.497--Prevention of Anti-National Activities Act (VII of 1974), Ss.2 & 13--Suppression of Terrorists Activities (Special Courts) Act (XV of 1975), S.5(6)--Penal Code (XLV of 1860), Ss.123-A & 124-A- Bail application,,-Accused charged under Ss.123-A & 124-A, Penal Code, and S.13 of Prevention of Anti-National Activities Act, 1974- Offences falling within ambit of sub-cls.(i) & (ii) of cl.(a) of S.2 of Act, 1974 and triable exclusively by a Special Court constituted under Suppression of Terrorists Activities (Special Courts) Act, 1975- Necessary complaint in respect of said offences against accused filed under sanction of Provincial Government and a copy of complaint placed on record--Special Court having exclusive jurisdiction in respect of said offences, bail application before High Court being infructuous was dismissed.
Moulana Dost Muhammad v. The State 1978 P Cr.L J 184; Muhammad Gul and others v. The State 1985 P Cr.L J 205; Gul Muhammad and others v. The State 1987 P Cr.L J 737; 1980 PCr.LJ 1006; 1987 P Cr.L J 811; A I R 1919 Mad. 968; A I R 1936 Pesh. 66; P L D 1962 S C 397; P L D 1975 Lah. 126 and P L D 1978 Kar. 108 ref.
(b) Criminal Procedure Code (V of 1898)--
--S.497--Penal Code (XLV of 1860), S.153-A--West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16--Bail, grant of--Accused charged with scheduled and unscheduled offences- Complaint filed with Special Court for scheduled offence--Course to be adopted by prosecution in respect of unscheduled offences under S.153-A, Penal Code, and S.16, West Pakistan Maintenance of Public Order Ordinance, 1960 being uncertain, and unscheduled offences punishable with imprisonment for three years or fine or both, bail was granted to accused in respect of unscheduled off-races.
Mir Muhammad Sheikh for Applicant.
Sarfraz Ahmed, A.A.-G. for the State.
Date of hearing: 25th March, 1987.
ORDER
Applicants Mumtaz Ali Khan Bhutto, Rizwan Kehar and Haji Abdur Rehman Lakho are accused in Crime No.299 of 1986 of Police Station Larkana Town registered on 6-11-1986 by an Assistant Sub- Inspector of Police in following manner.
Imdad Ali Police Constable No.1236, D.I.B. Larkana, submitted a report to the Incharge D.I.B. , Larkana that a public meeting attended by seven to eight thousand persons was organized at Jinnah Bagh, Larkana by Sindhi-Balouchi-Pakhtoon Front and it was addressed, amongst others, by Mumtaz Ali Khan Bhutto, Rizwan Kehar and Abdur Rehman in the afternoon of 31st October, 1986, and they made certain speeches briefly narrated there in P.D.S.P. of Larkana opined that the speeches reproduced in the report are objectionable containing words which tend to create hatred and animosity between different groups and communities of people as well as bring into hatred the present Govt. a case under Sections 153-A and 124-A PPC can be registered. Case was accordingly registered by the A.S.I.P. under sections 124-A and 153-A PPC by transcribing in 154 Cr. P. C. Book the report made by P. C. Imdad Ali. Investigation was commenced.
The accused/applicants were already under preventive detention. Applicants No.1 and 2 were put under arrest on 9-12-1986 and the applicant No-3 on 10-12-1986. Interim challan mentioning offences under sections 123-A, 124-A, 153-Ap PPC, section 13 of Prevention of Anti-National Activities Act, 1974 and section 16 M.P.O. against the applicants and two others was submitted in the Court of Resident Magistrate, Larkana on 23-12-1986 and the case was sent up to the Sessions Court, Larkana. Their bail application filed in Sessions Court, Larkana were dismissed by learned Sessions Judge by order dated 7th Jan. 1987 on two grounds, firstly that the offence under section 13 of the Prevention of National Activities Act, 1974 added during the course of investigation is exclusively triable by a Tribunal to be constituted by the Federal Government under provisions of the said Act, and secondly that the appellants were under detention under section 16 of the M.P.O. (Maintenance of Public Order Ordinance of 1960) and the Sessions Court did not have jurisdiction to release them on bail.
The learned counsel for the applicants has urged that the speeches imputed to the applicants do not constitute the offences registered against them. He has contended that FIR, registered in respect of offences punishable u/ss. 124-A and 153-A PPC on 6-11-1986. On the report made by a D .I. B. Police Constable Imdad Ali was illegal as these offences could not be taken cognizance of without a complaint under order of the Federal Govt or the Provincial Govt. under section 196 Cr.P.C. He has next urged that the offences under sections 123-A and 124-A are not cognizable and police could not register the case in respect of these offences nor could they investigate those offences and submit the challan. He has placed reliance on a case Moulana Dost Muhammad v. The State 1978 PCr.LJ at page 184. He has contended that the allegations against the applicants do not attract the provisions of clauses (1) and (ii) of section 2 of the Prevention of Anti-National Activities Act, 1974 and the offence under Section 13 of the said Act, if at all any, would not be triable by a Special Court or a Tribunal; and more over cognizance of that offence could not be taken without a complaint with prior sanction of the Govt. as laid down under Section 16 of the said Act. He has submitted that no Special Court has so far taken cognizance of the offences exclusively triable by such court and the High Court does have jurisdiction to hear bail application and he has relied upon a Full Bench Decision of Peshawar High Court in a case Muhammad Gul and another v. The State 1985 P Cr.L J 205 and a Division Bench case of this Court cited as Gul Muhammad etc. v. The State 1987 P Cr.L J 737. He has lastly argued that the applicant Mumtaz Bhutto is a heart patient and he deserves release on bail even on health ground. He has cited two cases reported in 1980 P Cr.L J 1006 and 1987 P Cr.L J 811.
Learned Assistant Advocate General has opposed the application. He has urged that the speeches made by the applicants/ accused do constitute offences punishable under sections 123-A, 124-A, 153-A PPC and Section 13 of Prevention of National Activities Act, 1974 and Section 16 of M.P.O. He has, of course, conceded that provisions of section 196 Cr.P.C. are attracted for taking cognizance of offences punishable under section 123-A , 124-A and 153-A PPC and sanction under section 16 of the Prevention of Anti-National Activities Act, 1974 is required for taking cognizance of the offence under section 13 of the said Act. But he has contended that the report made by P.C. Imdad Ali, which was transcribed in 154 Cr.P.C. Book amounted to complaint envisaged under section 196 Cr.P.C. He has cited A I R 1919 Mad. 968; A I R 1936 Pesh 66; P L D 1962 S C 397; P L D 1975 Lah. 126 and P L D 1978 Kar. 108 as supporting authorities. According to him, the filing of the complaint was authorised by the Government vide order dated 28-12-1986 and the provisions of section 196 Cr.P. C. stood complied with, and sanction for prosecution for offence under section 13 of the Prevention of Anti-National Activities Act also was accorded by the Govt. under the same order and a complaint was filed before the Resident Magistrate Larkana under the order and with the sanction of the Govt. and there is no illegality in the proceedings taken against the applicants. He has next urged that all the offences except the offence, punishable under sections 153-A and S.16 M.P.O. fall within the exclusive jurisdiction of the Special Court and a requisite complaint has been filed before the Special Court. He has advanced the plea that the interim challan was wrongly submitted to the Sessions Court by the Resident Magistrate but it should have been submitted to the Special Court.
The offences punishable under sections 123-A and 124-A PPC and section 13 of the Prevention of Anti-National Activities Act. 1975 falling with the ambit of clauses (i) and (ii) of clause (a) of section 2 of the said Act are triable exclusively by a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. The learned Assistant Advocate-General has made statement that a complaint in respect of those offences has actually been filed against the applicants under requisite orders /authority and sanction of the Provincial Govt. before the competent Special Court on 2-3-1987 and he has placed on record a copy of the complaint. He has filed a copy of a letter No.-1(3)SOJ/87, Govt. of Sind, Home Department, dated 16th June, 1987 to the District Magistrate, Larkana that interim challan should be taken back. In view of this development, the case against the appellants in respect of offences punishable under sections 123-A and 124-A PPC and section 13 of the Anti-National Activities Act, 1974 has been taken to the Special Court having exclusive jurisdiction. The bail application in respect of those offences arising from the order of the Sessions Judge has, consequently, become infructuous. The case of Muhammad Gul v. The State 1985 P Cr.L.J 205 is not attracted in view of the changed situation on account of filing complaint before the Special Court. The other case viz. Gul Muhammad and others v. The State 1987 P Cr.L J 737 is not attracted at the present stage.
However, there remains question of grant of bail in respect of offences punishable under section 153-A PPC and Section 16 of M.P.O. which are not scheduled offences triable by the Special Court. These offences are not included in the complaint filed in the Special Court. They are mentioned it the interim challan filed in the Court of Resident Magistrate, Larkana and transmitted to the Sessions Court, Larkana. Offence under section 153-A is also mentioned in the complaint filed before the Resident Magistrate, Larkana, which is still, pending in that Court as stated by the learned Assistant Advocate-General. It is yet uncertain what course would ultimately be adopted by the prosecution in respect of the offence punishable under section 153-A PPC . The offence under section 16 of the M.P.O. is punishable with imprisonment for three years fine or both.
For the reasons recorded above, the application is dismissed in respect of offences punishable under sections 123-A and 124-A PPC and section 13 of the Prevention of Anti-National Activities Act, 1974 which are scheduled offences within exclusive jurisdiction of Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975; while bait is granted in the sum of one lac of rupees with one surety to the satisfaction of Registrar in the High Court to each of the applicants Mumtaz Ali Khan Bhutto, Rizwan Kehar and Haji Abdur Rehman Lakho in respect of offence' punishable under section 153--A PPC and section 16 of the M.P.O. arising from the First Information Report registered at Police Station, Larkana Town on 6-11-1986, as crime No.299 of 1986.
M.Y.H./M-146/KOrder accordingly
Applicants Mumtaz Ali Khan Bhutto, Rizwan Kehar and Haji Abdur Rehman Lakho are accused in Crime No.299 of 1986 of Police Station Larkana Town registered on 6-11-1986 by an Assistant Sub- Inspector of Police in following manner.
Imdad Ali Police Constable No.1236, D.I.B. Larkana, submitted a report to the Incharge D.I.B. , Larkana that a public meeting attended by seven to eight thousand persons was organized at Jinnah Bagh, Larkana by Sindhi-Balouchi-Pakhtoon Front and it was addressed, amongst others, by Mumtaz Ali Khan Bhutto, Rizwan Kehar and Abdur Rehman in the afternoon of 31st October, 1986, and they made certain speeches briefly narrated there in P.D.S.P. of Larkana opined that the speeches reproduced in the report are objectionable containing words which tend to create hatred and animosity between different groups and communities of people as well as bring into hatred the present Govt. a case under Sections 153-A and 124-A PPC can be registered. Case was accordingly registered by the A.S.I.P. under sections 124-A and 153-A PPC by transcribing in 154 Cr. P. C. Book the report made by P. C. Imdad Ali. Investigation was commenced.
The accused/applicants were already under preventive detention. Applicants No.1 and 2 were put under arrest on 9-12-1986 and the applicant No-3 on 10-12-1986. Interim challan mentioning offences under sections 123-A, 124-A, 153-Ap PPC, section 13 of Prevention of Anti-National Activities Act, 1974 and section 16 M.P.O. against the applicants and two others was submitted in the Court of Resident Magistrate, Larkana on 23-12-1986 and the case was sent up to the Sessions Court, Larkana. Their bail application filed in Sessions Court, Larkana were dismissed by learned Sessions Judge by order dated 7th Jan. 1987 on two grounds, firstly that the offence under section 13 of the Prevention of National Activities Act, 1974 added during the course of investigation is exclusively triable by a Tribunal to be constituted by the Federal Government under provisions of the said Act, and secondly that the appellants were under detention under section 16 of the M.P.O. (Maintenance of Public Order Ordinance of 1960) and the Sessions Court did not have jurisdiction to release them on bail.
The learned counsel for the applicants has urged that the speeches imputed to the applicants do not constitute the offences registered against them. He has contended that FIR, registered in respect of offences punishable u/ss. 124-A and 153-A PPC on 6-11-1986. On the report made by a D .I. B. Police Constable Imdad Ali was illegal as these offences could not be taken cognizance of without a complaint under order of the Federal Govt or the Provincial Govt. under section 196 Cr.P.C. He has next urged that the offences under sections 123-A and 124-A are not cognizable and police could not register the case in respect of these offences nor could they investigate those offences and submit the challan. He has placed reliance on a case Moulana Dost Muhammad v. The State 1978 PCr.LJ at page 184. He has contended that the allegations against the applicants do not attract the provisions of clauses (1) and (ii) of section 2 of the Prevention of Anti-National Activities Act, 1974 and the offence under Section 13 of the said Act, if at all any, would not be triable by a Special Court or a Tribunal; and more over cognizance of that offence could not be taken without a complaint with prior sanction of the Govt. as laid down under Section 16 of the said Act. He has submitted that no Special Court has so far taken cognizance of the offences exclusively triable by such court and the High Court does have jurisdiction to hear bail application and he has relied upon a Full Bench Decision of Peshawar High Court in a case Muhammad Gul and another v. The State 1985 P Cr.L J 205 and a Division Bench case of this Court cited as Gul Muhammad etc. v. The State 1987 P Cr.L J 737. He has lastly argued that the applicant Mumtaz Bhutto is a heart patient and he deserves release on bail even on health ground. He has cited two cases reported in 1980 P Cr.L J 1006 and 1987 P Cr.L J 811.
Learned Assistant Advocate General has opposed the application. He has urged that the speeches made by the applicants/ accused do constitute offences punishable under sections 123-A, 124-A, 153-A PPC and Section 13 of Prevention of National Activities Act, 1974 and Section 16 of M.P.O. He has, of course, conceded that provisions of section 196 Cr.P.C. are attracted for taking cognizance of offences punishable under section 123-A , 124-A and 153-A PPC and sanction under section 16 of the Prevention of Anti-National Activities Act, 1974 is required for taking cognizance of the offence under section 13 of the said Act. But he has contended that the report made by P.C. Imdad Ali, which was transcribed in 154 Cr.P.C. Book amounted to complaint envisaged under section 196 Cr.P.C. He has cited A I R 1919 Mad. 968; A I R 1936 Pesh 66; P L D 1962 S C 397; P L D 1975 Lah. 126 and P L D 1978 Kar. 108 as supporting authorities. According to him, the filing of the complaint was authorised by the Government vide order dated 28-12-1986 and the provisions of section 196 Cr.P. C. stood complied with, and sanction for prosecution for offence under section 13 of the Prevention of Anti-National Activities Act also was accorded by the Govt. under the same order and a complaint was filed before the Resident Magistrate Larkana under the order and with the sanction of the Govt. and there is no illegality in the proceedings taken against the applicants. He has next urged that all the offences except the offence, punishable under sections 153-A and S.16 M.P.O. fall within the exclusive jurisdiction of the Special Court and a requisite complaint has been filed before the Special Court. He has advanced the plea that the interim challan was wrongly submitted to the Sessions Court by the Resident Magistrate but it should have been submitted to the Special Court.
The offences punishable under sections 123-A and 124-A PPC and section 13 of the Prevention of Anti-National Activities Act. 1975 falling with the ambit of clauses (i) and (ii) of clause (a) of section 2 of the said Act are triable exclusively by a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. The learned Assistant Advocate-General has made statement that a complaint in respect of those offences has actually been filed against the applicants under requisite orders /authority and sanction of the Provincial Govt. before the competent Special Court on 2-3-1987 and he has placed on record a copy of the complaint. He has filed a copy of a letter No.-1(3)SOJ/87, Govt. of Sind, Home Department, dated 16th June, 1987 to the District Magistrate, Larkana that interim challan should be taken back. In view of this development, the case against the appellants in respect of offences punishable under sections 123-A and 124-A PPC and section 13 of the Anti-National Activities Act, 1974 has been taken to the Special Court having exclusive jurisdiction. The bail application in respect of those offences arising from the order of the Sessions Judge has, consequently, become infructuous. The case of Muhammad Gul v. The State 1985 P Cr.L.J 205 is not attracted in view of the changed situation on account of filing complaint before the Special Court. The other case viz. Gul Muhammad and others v. The State 1987 P Cr.L J 737 is not attracted at the present stage.
However, there remains question of grant of bail in respect of offences punishable under section 153-A PPC and Section 16 of M.P.O. which are not scheduled offences triable by the Special Court. These offences are not included in the complaint filed in the Special Court. They are mentioned it the interim challan filed in the Court of Resident Magistrate, Larkana and transmitted to the Sessions Court, Larkana. Offence under section 153-A is also mentioned in the complaint filed before the Resident Magistrate, Larkana, which is still, pending in that Court as stated by the learned Assistant Advocate-General. It is yet uncertain what course would ultimately be adopted by the prosecution in respect of the offence punishable under section 153-A PPC . The offence under section 16 of the M.P.O. is punishable with imprisonment for three years fine or both.
For the reasons recorded above, the application is dismissed in respect of offences punishable under sections 123-A and 124-A PPC and section 13 of the Prevention of Anti-National Activities Act, 1974 which are scheduled offences within exclusive jurisdiction of Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975; while bait is granted in the sum of one lac of rupees with one surety to the satisfaction of Registrar in the High Court to each of the applicants Mumtaz Ali Khan Bhutto, Rizwan Kehar and Haji Abdur Rehman Lakho in respect of offence' punishable under section 153--A PPC and section 16 of the M.P.O. arising from the First Information Report registered at Police Station, Larkana Town on 6-11-1986, as crime No.299 of 1986.
M.Y.H./M-146/KOrder accordingly
0 Comments