P L D 1959 (W (PLP)

ABDUL HAMID, J.‑This is another application on behalf of Mr. Muhammad Ayub Khuhro in which he has prayed for his release on bail under section 498, Cr. P. C. He has also prayed for his discharge from custody under section 491, Cr. P. C. Mr. Khuhro has been accused of an offence under sections 3 and 6 of the Hoarding and Black-market Order, 1956. A charge under Regulation 26/5 of the Martial Law Regulations has also been joined with the charge under the boarding and Black-market Order, 1956. The case is now pending in the Court of Mr. K. M. Mirza, Special Judge, Karachi who is competent to take cognizance of cases under the Hoarding and Black market Order, 1956. Mr. Khuhro applied to Mr. K. M. Mirza for bail on 24‑10‑1958 but as he proceeded on tour on that day he sent the case to another Special Judge Mr. Feroze Nana for passing order on the bail application. By his order dated 28‑10‑1958 Mr. Feroze Nana has rejected the petitioner's application for bail. He has now come up to this Court under sections 498 and 491 of the Criminal Procedure Code. Very lengthy arguments were addressed to this Court both on behalf of the petitioner and the State. The facts disclosed at the bar are that during the last eight months one jeep, one truck and three cars, two Chevrolets and one Hilman, were acquired by Mr. Khuhro at controlled prices. One Chevrolet car, which is the subject matter of the offence under inquiry, was acquired by Mr. Khuhro on 12‑6‑

58. Both the Chevrolet cars were kept unregistered and on 2‑10‑58 one was handed over by him to Abdullah Khan accused No. 2 on receipt of Rs. 49,

000. Receipt for Rs. 25,000 was executed by Mr. Khuhro and the balance of Rs. 24,000 was paid to him through his servants Abdul Kadir and Qutubuddin accused 4 and 5 who are absconders in this case. Accused No. 2 is a dealer in cars and has a showroom. This car was taken by him to his showroom where the car was kept on display for sale. The police took possession of it from there. These allegetions, if proved, would constitute an offence under section 3 of the Hoarding and Black-market Order, 1956. They would perhaps also constitute an offence under Regulation 26 of the Martial Law Regulations, if it is proved that the real deal was for Rs. 60,000 and the balance was to be paid to Mr. Khuhro by accused No. 2 on the sale of this car to a buyer from his showroom. On behalf of the accused it has been contended by his learned counsel that as Mr. Khuhro is not a dealer in motor cars, the sale of the car by him to accused No. 2 does not constitute an offence under section 3 of the Hoarding and Black -market Order, 1956. With regard to the offence under Martial Law Regulation No. 26, it was urged that as the sale has been said to have been effected on 2‑10‑1958, the offence was complete before the imposition of Martial Law and the case is outside the ambit of Martial Law Regulations. This Court at this stage is precluded from entering into very close scrutiny of the facts to discover whether the conduct of the accused is an offence under section 3 of the Hoarding. and Black-market Order, 1956 or whether Regulation 26/5 of the Martial Law Regulations is applicable or not, or whether the offences are complete or in the stage of attempt or preparation. A It is also precluded from entering into any minute discussion of the matter whether with Martial Law Regulation 26 joined with section 3 of the Hoarding and Black-market Order, 1956 the case becomes triable by the Special Judge, appointed under that order, in whose Court the case is pending, or by any other Court. Under Martial Law Order No. 2 criminal Courts trying the offences can award punishment prescribed by Martial Law Regulations irrespective of their powers under the ordinary law. It is enough if oil the allegations made a prima facie case is found to exist. On these allegations there is a prima facie case against the petitioner on a charge which is punishable, in one case with imprisonment not exceeding seven years, and in the case under regulation 26 with imprisonment not exceeding fourteen years. Even if the conduct of the accused be held to fall within the ambit of section 3 of the Hoarding and Black-market Order, 1956 alone, that offence is punishable with seven years' R. I. The offence is a heinous one not only, on account of the fact that seven years' R. I. is provided as punishment for it, but also because it had been under great public condemnation and is prevalent to a degree which has brought the whole nation into disgrace. The granting of bail under section 498, Cr. P. C. is a matter pertaining to. the discretion of the Court. An accused e who has been charged with a non‑bailable offence cannot clam bail as of right. Discretion, according to judicial authorities, is to be used judiciously, and it is also the advice of the judicial authorities that matters of the character stated below are to be taken into consideration in granting or refusing bail . (1) whether there is a prima facie case against the accused ; (2) whether the release of the accused on bail would place him in a position of advantage against the prosecution in that it would lead to the implication that a case for conviction does not exist ; (3) whether the accused, if at liberty, would tamper with and destroy the evidence intended to be adduced against him ; (4) whether the offence with which he is charged is heinous and is under public condemnation ; (5) whether the accused is a habitual offender in the crime with which he is charged, or is, in other respects, of a criminal bent of mind ; (6) whether by his detention in jail his defence in Court would be hampered ; (7) whether on account of his detention his dependents would be deprived of their subsistence ; (8) Age, health and sex of the accused. From such study of the facts disclosed as is permissible at this stage of the case there appears to be a prima facie case against the accused at least under section 3 of the Hoarding and Black-market Order, 1956. That offence has always been heinous but recently it has assumed great importance. It is for that reason that the punishment for Black-marketing has been increased to fourteen years under Martial Law Regulation No.

26. The accused has been alleged to have acquired not less than five vehicles during the last eight months, presumably with the intention of selling them in the Black-market. He kept two) of them un-registered for three months which shows that these were not intended for his personal use but were acquired for sale at profit. He is a man of great wealth and influence and p if he is at large there is a danger of his tampering with evidence. He is rich enough to be properly defended in this case even if he is in custody, as is being done, and none of his dependents would be deprived of their sustenance. His release on bail will undoubtedly place him in a position of great advantage against the prosecution. It is for these reasons a judicious exercise of the discretion if bail is refused. This appli cation is rejected. A. H. Application rejected.