1985 P Cr (PLP)

Mst. Fitrath Ilyas v. The State P L D 1976 Lah. 1096 ref. Mian Tariq Mahmood for Petitioner. S.M. Zubair, A.A.‑G. for the State. The facts of this case are quite typical. It is a petition for Habeas Corpus of releasing two detenus, namely, Khalid Masood and 41is wife Bilqees Ata who have been allegedly in detention for more than one and a half years. They were apprehended under C.M.L.O. No.

86. They moved for bail before the learned Magistrate but he took the view that the particular offence with which they were charged fell out of his competence.

2. By their letter at page 7 of the present file (Annexure 'A'), the Military Authorities have declined to take seisin of the case against them. Obviously it was left to be tried by ordinary Courts.

3. Learned counsel contends that C.M.L.O. No. 86 was no penal provision as it does not define any offence and that at best it enables Military Authorities to try an offender for specified offences and that in this case the Warrant of committal does not contain any other offence whatsoever for which they may have been imprisoned. The Superintendent Jail, Jhelum, respondent No.2, present in Court states that the warrant of committal contains only the C.M.L.O. No. 86 and that no other offence' has been mentioned therein for which the said persons may have been arrested. He explains that since C.M.L.O. No. 86 was no offence by itself, S.P., Jhelum, has written him a letter, dated 21‑11‑1984 to add offences under section 420/468/471, P.P.C. in the warrant. He further explains that since it was not within his competence to add those offences, he has replied him accordingly.

4. The plea taken is that without any penal section having been mentioned in the warrant of committal, the detention merely under C.M.L.O. No. 86 was illegal. Since it was only an enabling section, some other offence ought to have been added in the warrant. The attempt made lately to add those offences was rather of no consequence. It has yet to be seen if any new or supplemental challan has been put up before the Ilaqa Magistrate to add those sections in the warrant. The S.P. could not directly ask the Superintendent (Jail) to add those offences on his own in the relevant warrant.

5. I had a mind to ask the petitioner to have recourse to the Courts below now when the Military Authorities had taken their hands off but the learned counsel is a bit critic of the conduct of all concerned in the prosecution of the detained persons. It is, a period of about two years that they are in the jail practically for no offence. To compel them to go over to the lower Courts once again will really be agonizing for them. The High Courts have been entertaining applications for bail in such cases. Mst. Fitrath Ilyas v. The State P L D 1976 Lah. 1096 is an example where the High Court converted a petition for Habeas Corpus into one for bail. Accordingly, I allow bail to Khalid Masood and Bilqis Ata shown as detenus in the petition subject to each furnishing bail bond in the sum of Rs.20,000 with two sureties each in the like amount to the satisfaction of Ilaqa Magistrate. H.A.