1969 P Cr (PLP)

Muhammad Haleem, Asstt. A.‑G. for the State. Date of hearing : 15th July 1968. This application under section 498 of the Criminal Procedure Code seeking bail for the applicants was filed under the following circumstances. A F. I. R. was lodged at Latifabad Police Station, Hyderabad on 18‑4‑1968 accusing applicant No. 3 only of prejudicial activities within the mischief of section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960. On that basis he was arrested and subsequently on 18‑4‑1968 and 27‑4‑1968 the other applicants were also arrested. Attempt was made for securing bail for the applicants first from the trial Court, which rejected it on the ground that the case was still under investiga tion. The learned Sessions Judge also rejected their bail application mainly on the ground that the learned District Prosecutor, who appeared before him, stated that it was likely that the applicants would be challaned under section 124‑A. P. P. C., and consequently his Court would have no jurisdiction to grant them bail because if they were found guilty of that offence they would be liable to a sentence of transportation for life.

2. Mr. Ibrahim Memon, the learned Advocate for the applicants pointed out that the final challan had since been put up in the trial Court, where amongst others the applicants were charged for an offence under section 124‑A, P. P. C. He, however, argued that the trial Court could not possibly take cognizance of that offence as compliance with the mandatory provisions of section 196 of the Criminal Procedure Code was not made by the prosecution. In order to appreciate his argument, it would be expedient to reproduce the provisions of that section :‑ "

196. No Court shall take cognizance of any offence punishable under Chapter VI (or IX‑A) of the Pakistan Penal Code (except section 127) or punishable under section 108‑A, or section 153‑A or section 294‑A, (or section 295‑A) or section 505 of the same Code, unless upon complaint made by order of, or under authority from the Central Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments." It would be seen that the clear language of this section required that before any cognizance could be taken by Court of any offence under section 124‑A, P. P. C., which falls in Chapter VI of the Penal Code, it was necessary that a complaint should have been filed for that purpose either by the Central Government or by the Provincial Government. In the instant case admittedly no such complaint was filed and consequently the contention of Mr. Ibrahim Manion, the learned counsel for the applicants appeared to have force.

3. Mr. Muhammad Haleem, the learned Assistant Advocate General argued that the final challan against the applicants has already been submitted to the trial Court, who has since remanded them to judicial custody. However, the question which required consideration was as to whether the trial Court was competent to remand the applicants to jail custody when admittedly compli ance with the provisions of section 196, Cr. P. Code was not shown have been made by the prosecution 7 The answer must obviously be in the negative for the simple reason that if the trial Court could not take any cognizance of the offence under section 124‑A, Cr. P. C., it had no jurisdiction to pass any remand order. In that view of the matter, a clear case has been made out for the grant of bail to the applicants in this case. Admittedly the other offences, of which the accused were charged, would not entail any sentence of death or transportation for life, even if they were to be ultimately convicted. In that view of the matter, there was no reason to keep the applicants in custody who are accordingly granted bail in the sum of Rs. 5,000.00 with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Hyderabad. Petition accepted.