1995 P Cr (PLP)

Date of hearing: 22nd September 1994. This application for bail has been moved on behalf an accused namely Muhammad Arshad son of Soofi Allah Dad who is facing trial under section 394, P.P.C. arising out of an F.I.R. No.434/1993 registered at Police Station, Nazimabad, District Karachi (Central) lodged by Muhammad Mazhar Oureshi on 7‑12‑1993. The F.I.R. was lodged under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and the case remained pending before the Sessions Judge Central, Karachi but the learned Sessions Judge returned the case on 9‑1‑1994 to the concerned Magistrae with his direction for disposal according to law by expressing his view that "The case if any will be covered by section 394, P.P.C. and the said offence is not exclusively tribal by Court of Session".

2. Without touching the legality of the order passed by the learned Sessions Judge, I consider it necessary to express my anxiety to see a very short order consisting of about 6/7 lines only, the contents of which do not fall within the scope of "speaking order". This aspect of the order could remain hidden from my eyes, if the learned counsel for the applicant had not averred before me that the learned Magistrate can convict the accused for a term less than 10 years provided the case is proved against him. Thus, the offence, if any, committed by the accused has slipped out of the clutches of propitiatory clause of section 497, Cr.P.C. and bail in such a case is a rule while its refusal is an exception.

3. From Schedule II of Criminal Procedure Code, it is evident that an accused guilty of an offence under section 394, P.P.C. can be tried by a Court of Session or Magistrate of the First Class. However, I am sure that the learned Session Judge might be aware of this fact also before sending the case from his Court to the Court of a Magistrate, that the punishment of this offence can be upto imprisonment for life as substituted by Act XXV of 1974, w.e.f. 13‑4‑1972. Under such circumstances, the conduct of the learned Sessions Judge is astonishing for me besides this anxiety that if legality or illegality of such course adopted by the particular Sessions Judge is not checked by the High Court in time, then he may transfer the cases involving offences under section 392, P.P.C., (if committed on the highway between sunset and sunrise) punishable with rigorous imprisonment for 14 years and fine, to the Courts of Magistrates under the same pretext so that the Advocate for the accused person could agitate the same ground as agitated by the learned counsel for the accused in the present case.

4. The prosecution story, as reflected from the police papers, shows that the appellant/accused hired Taxi No.PC‑8760 Suzuki Model 1992‑1993, GOOCC alongwith another co‑accused namely Muhammad Hassan and then snatched the said taxi as well as the wrist watch from driver Muhammad Mazhar Qureshi at the point of T.T. Pistol and ran away with the looted property. The complainant Muhammad Mazhar Qureshi narrated this fact to two police officials who chased the taxi on their motor‑cycles but the accused persons disappeared from their sight. After some time, the complainant came to know that the accused persons have been arrested by the police of Pirabad Police Station and they have been taken away by the police party in their mobile. Hence the complainant returned back, came to Police Station Nazimabad and lodged the report at about 16‑10 hours, about the incident of snatching his taxi, which took place at about 15‑20 hours. Another F.I.R.No247/93 lodged on the same day at about 16‑30 hours shows that the accused persons had entered the house of a person namely Sarfraz Khan at about 15‑30 hours and after putting the family members of the house under the fear of death with the said T.T. Pistol started collecting the valuable articles of the house from an Almirah but before they could run away with the looted property, they were apprehended by the Mohallah people. Pistol was recovered and F.I.R. were lodged under Arms Ordinance also. These facts clearly show that the present applicant committed an offence of snatching a taxi at 15‑20 hours on 7‑12‑1993 and within 10 minutes entered the house of another citizen to commit "Harabah" in that house but it was their bad luck that they were caught by the Mohallah people at the spot. Their conduct also shows that they were not pious about the police officials who had chased them and were in their search in the same area. Taking into consideration all the facts, as mentioned above the conduct of the learned Sessions Judge for sending the case to the Court of Magistrate, does not seem to be appreciable or tenable.

5. The learned counsel for the applies/accused has urged that due to transfer of case from the Court of Session to the Court of Magistrate, the accused is rotting in jail since his arrest besides the fact that sentence, if any, to be awarded to the accused would be out of the ambit of the propitiatory clause of section 497, Cr.P.C., therefore, he is entitled to be released on bail as a rule unless there is any exception to such rule for refusal of bail. I am afraid to accept such averments advanced by the learned counsel. I feel that the offence, alleged against the accused, does not escape from the clutches of propitiatory clause. If the case of the accused has been transferred C to the Court of Magistrate by the Sessions Judge, by mistake or due to some other reason, even then it cannot be presumed that the nature of the offence 'has been changed. As the order of learned Sessions Judge is not a "speaking y order" hence I avoid to comment upon the same, unless the learned Sessions Judge submits his comments after going through this order. If those comments are not found sufficient to satisfy this Court about the justification of such order of transfer, then the case can be transferred back to the Sessions Court. Hence I order that not only this order be kept on the file of the case but the Registrar of the High Court should keep the copy of this order on the personal file of the learned Sessions Judge. The learned Judge; is also required to send his comments within one month to justify his order for the transfer of case from his Court to the Court of Magistrate in the light of the observation made by this Court. The copy of those comments are also ordered to be placed on the personal file of the learned Sessions Judge by the Registrar of the High Court as and when the same are received.

6. Be that as it may, in view of the material available before this Court, it l cannot be said at this stage that there are no reasonable grounds for believing, that the accused has not committed a non‑bail-able offence as alleged against him. Hence he is not entitled to be released on bail. In presence of the reasons listed above, the request of the applicant for releasing him on bail cannot be acceded to and accordingly the bail is refused to him. N.H.Q./M‑1998/K Bail refused.