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Criminal Miscellaneous No. 2972/13 of 1980, decided on 16th September 1980.

Criminal Procedure Code (V of 1898)-

S. 497 read with I: G. P.'s Memo. No. 8810-8909/C, dated 7-4-1980-Bail, grant of-Jurisdiction-(Trap case)-Case registered under M. L. R. 7/14, without prior approval of Martial Law Authorities in disregard of Governor/M. L. A.'s directive, circulated by I: G. P.'s Memo. No. 8810-8909/C, dated 7-4-1980-Case not taken cognizance of by Martial Law Authorities and question whether Maitial Law Authorities would at all accept challan to try petitioner yet to be decided-Meanwhile ordinary law of land, held, would operate-Petitioner allowed bail, in circumstances. [Jurisdiction,.

Abdul Rashid v. The State 1969 S C M R 693 ref.

Sh. Nisar Qutab for Petitioner.

Ch. Abdul Razzak for the State.

One Kamal Din reported to Mr. Zulfiquar Ali, Inspector, Anti-Corruption Establishment, Kasur that a Constable Nazir Hussain (present petitioner) was demanding illegal gratification. After taking down the report the Inspector arranged for a raid and a sups of Rs. 500 was recovered from the petitioner. A case under section 161, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947 and M. L. R. 7/14 was registered against the petitioner. The petitioner was arrested and had been sent to jail. He is stated to be ill and admitted in the jail Hospital as a case of Ac Renalcotic Nephrites". He applied for bail before the learned Senior Special Judge, Anti-Corruption, Punjab Lahore but the application was dismissed for lack of jurisdiction vide order dated 3-9-1980. The petitioner has applied for bail in this Court.

2. Learned counsel for the petitioner has referred to Abdul Rashid v. The State (1) to contend that the petitioner is entitled to bail. He has also submitted that the petitioner is an old man of 60 years and is lying ill in the jail hospital. Learned counsel for the petitioner further submitted that the Martial Law Administrator had directed that no case under Martial Law Regulation shall be registered without the prior approval of the Martial Law authorities. It is submitted that this decision was communicated by the

Inspector-General of Police of Lahore to all Heads of Police of Punjab

vide Memo. No. 8610-8909/G dated 7-4-1980 which reads as under : -

"According to the existing instructions, cases under Martial Law Regulations are registered only with the approval of the Martial Law authorities. The M L R/Governor of the Punjab while addressing the Council of Advisers on 24-3-1980, has again directed that no case should be registered by the Police under Martial Law Ragulations without the prior approval of the Martial Law authorities.

(2) The above instructions on the subject should be carried out in letter and spirit."

Learned counsel for the petitioner contends that the Recording Officer of the report that is the Inspector, Anti-Corruption Establishment, illegally registered the case under M L R 7/14. It is also submitted that the case has not yet been sent up for trial to any Military Court. There is no chance of that being done within the next six months either.

3. Learned counsel for the State had opposed the bail application and has stated that the petitioner is liable to be tried by Martial Law Court and consequently this Court has no jurisdiction.

4. Mr. Zulfiqar Ali, Inspector, Anti-Corruption Establishment has appeared with record. He has stated that the investigation has been nearly completed and the challan is going to be put up. but it is yet to be decided that in which Court the challan should be submitted, that is whether in a civil Court or before a Martial Law Court and it would take more than a month. He also stated that the Martial Law Court, Kasur, where the trial is to take place is generally not taking up such cases for trial.

5. In view of the judgment of the Supreme Court quoted above by the learned counsel for the petitioner, the petitioner would be entitled

(1)1969rSCMR693

to bail. Ordinarily the case would be triable by the established civil Courts. ---n view of the Martial Law Administrator and in pursuance of which instruc-

tions have been issued by the Inspector-General of Police that no case should be registered without prior approval of the Martial Law authorities and the fact that the Martial Law authorities had neither accorded approval have not yet taken cognizance of the matter. and it is yet to be decided as to whether the Martial Law authorities would at all accept the challan to try the petitioner, it appears that the petitioner is entitled to bail until final decibiuil by the competent authority that the case be tried in a Martial Law Court r in accordance with law. It is obvious that in the meanwhile ordinary law of the land shall operate. In view of the aforequoted judgment the petitions: is entitled to bail. He is, therefore, allowed bail in the sum of Rs. 5,

(Rupees five thousand only) with one surety of the like amount to the

satisfaction of Assistant Commissioner, Saddar, Kasur. t

s. 0. D. Bail allowed.

THE END

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