P L D 1975 Lahore 210 (PLP)

(iii) In view of the situation that has developed soon after the announce ment of the orders, and specified in a separate note dictated in open Court in presence of all concerned including the learned Assistant Advo cate-General, I hereby direct Ch. Muhammad Zaman, D. S. P. Crimes, incharge of the investigation of the case to protect the person of the accused against any physical harm whatsoever so long as the case remains under investigation and, if the challan is submitted in Court,. till the conclusion of the trial. Any difficulty which Ch. Muhammad, Zaman might face in carrying out this duty shall not be noticed unless the same is brought to the notice of this Court well in time, to be remedied. In case of his "transfer or retirement, or otherwise taken off the present duties as police officer, he shall, before handing over the, charge in respect of this case, report the matter to this Court and seek farther orders.

2. Copy of this order be sent to the Inspector-General of Police,Punjab."

7. The circumstances which necessitated the direction contained in sub para. (iii) of para. 1 of the above order are contained in a separate note, the subject-matter of which being relevant, the same is reproduced below:- "While weeping and crying, rather when he is in sobs, the petitioner has expressed fears and apprehensions (which, prima facie and from his. demeanour, I have absolutely no reason to treat as non-genuine) that he might be killed. He has also stated that his life has become miser able. The police is harassing him and that attempts are being made n his life. Hurriedly, he mentioned someone found carrying a sharp edged weapon to kill him; but, he has completely broken down and could not complete the statement. In this very state, he has produced a note in Urdu which appears to have been sent by one Malik Muhammad Khan (convict under death sentence) and addressed to, as mentioned therein, "Malik Sahib". Two names are separately mentioned on the reverse side of this note. It is very difficult to com prehend the entire purpose and the contents of the note or the con nection of the names written on it. The petitioner is still weeping/' sobbing and even after about 10/15 minutes has not fully recovered. I do not consider it either necessary or proper to examine him in detail in this state of mind. He is permitted to file a detailed state ment with regard to what is mentioned in the note and/or details of facts and circumstances which he/his counsel was unable to disclose during the arguments in this casb. The note in Urdu has been handed over to the learned counsel who shall resubmit it when the petitioner files his statement, for record of this Court.

2. It is further noted here that after the announcement of the orders,, the petitioner had gone out of the Courtroom. His counsel was still pre sent when Mr. Najam, learned Asstt. A.-G., requested that some condi tion might be attached with the bail granted to the petitioner, that he: would neither make any speech containing material, as is mentioned in the letter (Annex. B'), nor would write any such material. I directed the learned counsel for the petitioner to send for his client. Whets the petitioner returned to the Court room I told him about the prayer of the Asstt. A: G. and asked him to give an undertaking that he shall not intentionally and consciously commit any of the offences men tioned in the F. I. R. On this, he spontaneously uttered that he had absolutely no intention of committing any offence and, in reality, he is under such constant pressure that he, in these circumstances, even intends leaving the country. It was at this stage that he burst into tears, went into sobs and thereafter completely broke down."

8. The authority under which the writ jurisdiction of this Court has been, invoked for the purpose of seeking annulment of registration by the police of,. and investigation in, a criminal case is contained in a ruling of the Supreme Court in the case of Shahnaz Begum v. The Honourable Judges of the High Court of Sind & Baluchistan and another (1). Both the learned counsel have relied on this ruling. No doubt at page 693 of the report their Lordships did visualise that "if an investigation is launched mala fide or is clearly behind the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper pro ceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code"; but the discussion in the ruling on the subject of interference by the High Court in the investiga tion by the police shows that not only that it should be minimum but also' that it would be possible only in rare cases. It is necessary also to refer to A~ observation made at page 687 of the report that "the High Court has also no power of supervision or control over investigating agencies for the power of superintendence which is given by Article 102 of the Constitution is only in respect of "all other Courts that are subordinate to it". In an earlier ruling, namely, Ghulam Muhammad v. Muzammal Khan (2), it was remarked that if` in disregard of the accepted principles in this behalf the High Court started= interfering at intermediate stages with the usual course of the administration, of criminal justice, that would amount to intern opting the course of justice and further setting up wrong precedents by which it (cause of justice) instead' of being advanced would be stifled.

9. Keeping the above legal position in view, I called upon the learned counsel for the petitioner to show as to how the action taken by the police in, this case merited interference by the High Court. Both the learned counsel read certain portions from the statements admittedly made by the petitioner in Annexure `A' (statement made before the War Commission) and Annexure 'B" (letter written to his daughter). The question as to whether the respondents, can legally rely on the contents of Annexure `A' became subject of some controversy because of protections qua statements made before the War Commission. Therefore, I would not make much comment on it except in connection with the questions relating to bona fides of the parties. With regard to the Annexure B' also, keeping in view the order passed (of dismissal of the writ petition) and a possibility of eventual trial of the petitioner by a competent Court wherein these documents might again come under scrutiny, I have decided not to make any detailed comment on the contents thereof. There are many allegedly culpable statements in Annexure B'. The learned Assistant Advocate-General vehemently relied on them to show that the, petitioner has prima facie committed the offences he is accused of, I quote only one of such passages. It reads as follows:- "You feel concerned about me, my failing health and my lonesome life. With love and longing you ask me to come back to my family. I am staying here only because the thought of returning to Pakistan depresses me. I feel that I will suffocate in the sun-kissed land of the five rivers, where a foulness hangs in the air that was once so clean crisp. I cannot stand the stench of blood that is shed daily by can nibals who hold the reins of power. 1 cannot bear the loathsome sight of vultures feeding on the body of Pakistan, hacked and torn to pieces. I am disgusted that human values mean nothing in the home of Waris, Fareed and lqbal who so nobly searched for the image of God in man. The whole world stands aghast at this great tragedy but we remain oblivious and unmoved. Forgive me my daughter, but I find it hard to come back and become a part of the this brutal madness." After reading the provisions of the law for the contravention of which the, case has been registered, learned counsel for the petitioner has not been able to satisfy me that there was absolutely no possibility of any Court coming to a conclusion that he has committed any of these offences. While dealing with the question of interference by the High Court even under section 561-A, CT. P. C., the Supreme Court held in Ghulam Muhammad v. Muzammal Khan cited above that unless it can be said that the charge on its face or the evidence, even if believed, would not disclose any offence the High Court would not interfere because that would amount to interrupting or diverting the ordinary course of criminal procedure as laid down in the procedural statute. Even if the contents of Annexure 'A' which undoubtedly contain highly objectionable material, are kept out of consideration, learned counsel, after analysing the contents of Annexure 'B', has not been able to take the case beyond the level of one which might be arguable before the trial Court, if and -when the challan is submitted. But that, by itself, is not enough to quash the investigation.

10. With regard to Annexure `A', it may be mentioned here that at the time of motion hearing when the learned counsel was asked whether .he sought protection qua the disclosure of its contents, he, after consulting his client (the petitioner) had replied in the negative, during the final hearing however, a very interesting situation arose. The learned Assistant Advocate General understandably pointed out the culpable portions in Annexure'A'. No objection was raised by the petitioner's counsel during early stage of the arguments. Till a late stage he felt satisfied by stating that the culpable portions in Annexure 'A' were explainable. Then all of a sudden when faced with difficulty in explanation he sought statutory protection. When reminded of the position taken by the petitioner even in the writ petition itself by voluntarily not only attaching Annexure 'A' with it but also vehe mently relying on and making use of it, at the time of motion hearing; and I asked him to consult his client on this question, the petitioner advised his counsel in open Court that "he (the petitioner) does not seek any protection". He also stated that "he will file statement in respect of the portions of Annexure 'A' which might only appear to be objectionable". After this insistence by the petitioner, his learned counsel sought time "to advise and consult his client". They went out and having returned after only a few minutes, learned counsel for the petitioner stated that "he (his client) claims and seeks both privilege and protection qua Annexure 'A' because if and when need be, he shall be able to explain that there is nothing which can be described as an offence against any law and that it was only a patriotic discourse". I have already pointed out that any detailed comment on the contents of Annexure 'A' might highly prejudice the case of the petitioner before the competent Court I would, therefore, refrain from it but am constrained to remark that the position taken by the petitioner in -that behalf has had a definite effect on the question of allegation of mala fides. Malice, whether factual or legal, is not a matter of presumptions only. The allegation in respect thereof has to be considered in the context a of the facts and circumstances of each case. If the petitioner and his counsel themselves thought that contents of Annexure 'A' were such that they might give out his (petitioner's) motives and inner feelings towards the Government lawfully established or the basis and/or need for the creation/existence of the State of Pakistan (which might be considered as highly culpable/objec tionable) and for that reason they oscillated on the question of reliance thereon in these proceedings; the investigation of the case being still in progress, the police officers conducting the same cannot be blamed for form ing opinions of their own for reaching a conclusion as to whether he should be prosecuted for the serious offences he is accused of. It may be clarified here that the fact that I have not decided the question of culpability or otherwise qua the contents of Annexure 'A' shall not have the effect of finally excluding it as inadmissible or protected. These aspects will have, in case the challan is submitted, to be considered by the trial Court on their own merits.

11. At this stage, the question of factual mala fides can be taken up for consideration. The petitioner claimed that at one time be had intimacy with the present Prime Minister and for various reasons stated in the petition he further claimed that the relations became strained and that is why he is being victimised. Apart from the fact the person against whom the personal mala fides are being alleged is not a party in these proceedings; an interesting question arises; namely, supposing a person in fact commits an offence and taking the matter to its extreme logical ends (and supposing he also makes a confession); can he then urge that despite the fact that he has committed the offence be should not be tried for the same, simply because the person directing the initiation of the proceedings is his enemy? Sub jection to any technical/statutory bar which there is none in this case, the answer would be in the negative for obvious reason, the forced of which is not denied even by the learned counsel for the petitioner, that the trial has td be held by a Court of law where the case would be decided on the basis of the evidence lawfully produced by the parties or summoned by the Court on its own initiative. It has been held in a number of rulings by the superior Courts in Pakistan that the defects in the conduct of investigation by the police would not affect the finding of guilty if the charge is proved from the admissible evidence adduced before the Court. In the present case, the investigation is being conducted by persons against whom except qua allega tion of apprehended maltreatment, there is no material to come to a con clusion that they are personally biased against the petitioner. Even if they have been asked to initiate the proceedings in a case which otherwise, in performance of their ordinary duties, they should have, on their own taken note of, registered and investigated, the only fact that they are told by someone who is interested in the prosecution of the petitioner to do their duty will not convert the entire action of the investigating agency into one of mala fides. In view of this legal position, I refrain from going into the other questions of fact on which no evidence has been produced in these proceedings, as to whether the assertions made by the petitioner vis-a-vis the present Prime Minister are correct; except that I have noted the main features of the assertions and denial thereof when dealing with the contents of the writ petition and the written statement. In view of the above discussion, I do not agree, with the learned counsel for the petitioner that even if a case otherwise merits due investigation by the police, it (the inves tigation) should be quashed simply on the ground that the same might have been initiated with mala fide motives. It is a public duty of the police to take note of all cognizable offences, register the same and, after due investi gation, submit the necessary reports under the Criminal Procedure Code, If they fail in this, they would be failing in one of their most important duties. The position, however, would be different if there is lack of jurisdiction, or as observed by their Lordships of the Supreme Court in the case of Ghulam Muhammad v. Muzammal Khan, the accusation on its face or the evidence, even if believed, does not disclose any offence; which, I am in no doubt, is not the position in the present case. It cannot be ignored that even if there are allegations and counter allegations of victimisation but there are tangible basis for the police to investigate the case; it is always useful for the accused, if he claims innocence, not to shirk facing the trial in a Court of law in accordance with the established rules of procedure and then, if he feels sanguine about his position, to vindicate the same by con vincing the competent Courts of law about the claimed innocence. 12 .When faced with the above position about which some remarks were also made during the arguments so as to give opportunity to the learned counsel to urge any other point if he so liked, learned counsel fell back upon the argument raised by him at the motion hearing, namely, that the delayed registration of the case and then delayed activisation thereof in the form of real investigation was "intended to work as a sword of democles and be used whenever it suited the interest of Government". I have care fully gone through the ,police file and have also questioned the Investigating Officer in this behalf. No doubt there is considerable force in the contention of the learned counsel that the case was not registered till a very late stage and that too at or about the time of the return of the petitioner from abroad; despite the fact that the contents of the objectionable publication/material were known to all the concerned authorities from a very early stage. It is also true that there was hardly any acceptable justification for keeping the investigation in a low key for about half a year and then activising the same all of a sudden. It can no doubt be argued that in absence of any plausible explanation such a conduct on the part of the concerned Government and/ or any of its subordinate agencies like the police (investigating agency) might be motivated by any advantage in the political field or to achieve certain maneuverability in that behalf. But such an action, even if motivated and howsoever undesirable it may be, would not have the effect of washing way a crime if, in fact, it has once been committed; the lawful conclusion whereof cannot but be reached through legal procedures including that of a regular trial. It is now well-established principle that limitation/delay per se is no ground for coming to a conclusion that an offence, which might have been committed, on account of this reason (delay alone) does not remain, any more, triable. (See M. S. Khawaja v. The State (PLD1965SC287). Applying the above principle in this case, subject to what I have to say in this behalf on the question of bail, the delay either in the registration of the case and/ or in the conduct of investigation, by itself is not sufficient for quashment. Moreover, it is note one of those cases of delay in the registration of the case where, for example, the allegation might be of concoction of unfounded accusations and false evidence so as to falsely implicate someone. Here, the authorship of the contents of the impugned material is not at all denied.

13. Some technical arguments were raised with regard to the formal registration of the F. I. R. It is not necessary to go into the details thereof because a case can legally be investigated even without a formal F. I. R. Question was also, raised about publication of the contents of Annexure `B'; but when pointed out to the learned counsel that here, prima facie, appears sufficient evidence to show that there was a serious effect on the part of the petitioner to publicise the letter by various means, the point was not pressed any more. As to the question of the copies of Annexure `B' having been sent to the Judges of the superior Courts and their not having taken any action against the petitioner, I agree with the position taken from the side of the respondents, namely, that there is no evidence that in fact the contents of Annexure B' were noticed by the Courts as such and, in any case, there were no proceedings in respect thereof by which, it may be said, the ques tions involved were determined.

14. After carefully considering all the aspects of the case and taking note of the arguments of the learned counsel, I do not see any justification for interference with the registration and investigation of the case. The writ petition, therefore, is dismissed but there shall be no order as to costs.

15. On the question of bail, apart from the general grounds of mala fides and delay in registration/investigation of the case urged in support of the writ petition, learned counsel has raised the following contentions (i) that the petitioner has been suffering from various diseases and did not enjoy good health in the past. In this behalf, a statement sub mitted by the petitioner before the Supreme Court in another case was read and relied upon; (ii) that on merits, the investigation which is still in progress is likely to take a long time and further enquiry being necessary the petitioner is entitled to bail; (iii) that the petitioner is under a fear that if and when arrested, he will be eliminated or tortured by the police. In this behalf, learned counsel has relied on the following circumstances: (a) aforementioned statement submitted by the petitioner before the Supreme Court in which certain details have been given with regard to previous alleged attempts at his life and maltreatment; (b) previous occurrence of an effective firing at his house and further that he had, in that connection, allegedly accused the present Prime Minister; (c) many recent complaints made even in this Court of maltreatment, torture of politicians when in police/jail custody. In this behalf, some names were mentioned with specific allegations the details of which, in view of what the learned Assistant Advocate-General gave as reply, are not necessary to mention; (d) general atmosphere at present prevailing where under the petitioner, it is contended, as reasonable person, has an apprehension that he also, when in custody, will be tortured or eliminated. Mian Abdus Sattar Najam, learned Assistant Advocate-General, in reply contended firstly, that from appearance the petitioner appeared quite hale and hearty, therefore, he is not entitled to bail on ground of health; secondly, that the investigation is not likely to take very long and, in any case, the Court can fix the time for its completion; thirdly, that it was during the regime of Nawab of Kala Bagh, the late Governor of the then Province of West Pakistan that the incident of firing at the house of the petitioner took place in which, according to the learned A. A.-G., probably the intended victim was another persons. and that the statement alleged to have been made by the petitioner in connection with that case against the present Prime Minister is not, in any way, different from those the petitioner is in the habit of making, for the last many years; fourthly, while admitting that "there is a general complaint of such fear during last few months", learned A. A.-G. contended that howsoever genuine the fear or apprehended harm may be, this is not a legal ground for bail under section 498/497, Cr. P. C. read with rule 49 of Defence of Pakistan Rules, 1971, and, in any case, this Court, while dismissing the petition for bail, can dispel the fear of the petitioner by affording protection to him by giving a direction in this behalf to the police; and lastly, the learned A. A.-G. requested that if the petitioner is allowed bail,. he be put under a condition that he would neither make any speech containing material as is mentioned in Annexure `D' nor would he put in writing any such material.

17. I heard both the learned counsel at some length. As noted earlier in the facts part of this judgment, there is a very interesting feature of the question of bail in this case, namely, that while admitting the writ petition 1 had not allowed interim bail but had directed, of course under section 561-A, Cr. P. C., that till 1-30 p.m. on the next day the petitioner would not be arrested. On the next day, i.e., on 25-10-1973 when the question of bail came up for hearing in presence of a learned counsel appearing for the State, I allowed interim bail to the petitioner on the following concession made by him (the learned counsel for the State) and noted in the order dated 25-10-1973:- "Learned counsel for the State informs that he has received instructions. to state that the police has no objection to the grant of interim anti cipatory bail to the petitioner till 6th November. Order accordingly". 1 have absolutely no doubt that the learned counsel made the statement with full responsibility and he was so instructed to make such a statement. It is pertinent in this behalf also to notice that when the case came up before me on 6-11-1973, the learned Assistant Advocate-General himself appeared. He was assisted by the same learned counsel-who had made the concession on 25-10-1973. Ch. Muhammad Zaman, D. S. P. Crimes Branch was also present with police records. Parties were not in a position to argue the case. I adjourned the bail matter to come up with the writ petition on 8-11-1973 and then it was adjourned to 9-11-1973 when the orders were announced. On both the intervening dates, i.e. 6-11-1973 and 8-11-1973, 1 extended the interim bail to next date of hearing, firstly, for two days and then for one day. This extension also was not opposed by the State. In the above circumstances which sufficiently represent the earlier attitude of the State on matter of bail, I fail to understand as to why the police and/or the State changed its mind on the question of bail and at the final hearing vehemently opposed the petition (for bail). It has to be mentioned that this circumstance is not at all irrelevant and could not have been ignored. 18.On the question of health, I agree with the learned Assistant Advocate-General that though under the proviso to subsection (t) of section 497, Cr. P. C. an accused person can be released on bail even if his case falls within the prohibition contained in the purview of subsection (l), yet it has always to be considered as a question of fact whether the circumstance relating to health justify exercise of discretion in this behalf. The petitioner who remained present during the hearings did not at all, during this time, visibly suffer from any ailment or attack in or outside the Court nor did he make any complaint in that behalf. He also looked quite hale and hearty, therefore, I find no force in the contention of the learned counsel for the petitioner in this behalf.

19. With regard to the second contention, the provision relating to further enquiry as contained in subsection (2) of section 497, Cr. P. C., reads as follows: "(2) If it appears to such officer or Court at any stage of the investiga tion, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided." Even though I do not agree with the learned Assistant Advocate-General that when a case is covered by the above quoted provision the relief of bail can be refused by mere direction of the Court fixing the time for completion of "further enquiry"; yet, on reading the impugned material and after going through the police file, I am not at all satisfied that the very important condition laid down by law in the above provision, namely, that "there are not reasonable grounds for believing that the accused has committed a non -bailable offence" has been satisfied in this case. This observation I have made after careful consideration of the entire arguments on merits. Any further comment in this behalf, as has been earlier observed, will prejudice the case of the petitioner if and when he is to face the trial before a competent Court. With the above observations, I find no force in the second contention of the learned counsel for the petitioner, either.

20. With regard to the third contention, there is not much to be discussed' on the factual side. It is not denied that the petitioner belongs to a political party; he was earlier arrested; he did make complaints of maltreatment; firing was resorted to at his house (though in an earlier regime) and while that background/general atmosphere in this behalf has not changed in any material sense, specific allegations have been made with regard to police torture in recent times including a type involving politicians. I cannot in this behalf ignore an honest and candid admission noted above, made by the learned Assistant Advocate-General with regard to conditions prevailing for the last few months. At the conclusion of the arguments I had asked both the learned counsel to supply the list, at least, of those cases which came up for hearing before this Court (this would, of course, exclude the cases in which this Court was not approached). Both the sides submitted their lists; though I must remark with regret that the submission of the lists was delayed by several weeks. The list submitted by the State is in two parts. One is with the head ing "List of cases in which petitioners have leveled the charges of tortures". It contains 21 cases-all of them writ petitions. It is necessary to mention here that habeas corpus petitions under section 491) Cr. P. C., and contempt applications have not been mentioned in this list. They might be many in number. The second heading is "List of torture cases". It contains 6 cases two criminal miscellaneous bail petitions, one criminal miscellaneous and two criminal miscellaneous habeas corpus petitions. The list submitted by the learned counsel for the petitioner does not appear to have been submitted with the due diligence. It contains 9 cases and is accompanied by six affidavits-some of them by Advocates from Multan, wherein a reference to beating to some politicians is made which is the subject-matter of a contempt matter now pending before a Division Bench of this Court. Not only that the petitioner's list does not appear to have been prepared with due diligence, but I have also an impression that it does not appear to be impartial. On the contrary, the lists submitted by the State appear to be the result of due effort but I am sure that it does not contain all such cases ; obviously because it would have taken more time for the State officer to go through all the petitions and matters filed in various Courts so as to submit a completely exhaustive list. Be that as it may, the exhaustiveness or otherwise of the list is not very much material because the basic fact is not disputed. It is well known and more than one Benches of this Court have taken note of this aspect of the matter in some cases. There have been allegations even of murder-enquiries have been and are being held. I have myself taken note of and dealt with cases of serious allegations of torture including that involving a politician. It is now pending decision on Contempt side before a Bench consisting of the learned Chief Justice and myself. The next date of hearing - is 21-1-1974 when the trial of some Police Officers in this behalf is likely to commence. Recently, there have also been cases of allegation of apprehension of death in fake encounters. In habeas corpus petitions also, I have dealt with allegations -of torture. In some cases, persons concerned were medically examined and in one case of torture, unlawful confinement as also bribe, a Police Officer and an alleged outlaw have already, without raising a contest, tendered apology the judgment wherein was reserved. In the above-noted various examples I have not noted the cases of alleged torture or other similar methods during investigation of ordinary criminal cases. It is not necessary for me to discuss the entire subject of the police investigations and age-old allegation in the sub-continent with regard to the methods of investigation as the same is not relevant to the question in issue. Keeping in view the admitted positions from both the parties, the background of the petitioner, his own conduct and all other circumstances discussed in this judgment, I have come to a conclusion that the apprehension expressed by the petitioner is neither unreasonable nor unfounded and can be entertained by any reasonable person. This conclusion finds further support from the incident that took place soon after the announcement of the order, the facts and circumstances whereof were dictated there and then in detail in presence of all the parties concerned including the learned Assistant Advocate-General in the form of a note which has been quoted in para. 7 of this judgment.

21. The next question arises that if, in the circumstances like that of the -present case, the Court comes to the conclusion as reached above, whether it (such a conclusion) can be taken as one of the considerations for bail under section 498/497, Cr. P. C. I agree with the learned Assistant Advocate General that the bare text of the provision does not make any mention of such a situation. But it cannot be denied that the law of bail as declared by the Supreme Court and the High Courts of Pakistan has followed the course of pragmatic as distinguished from technical interpretation. In this behalf, two important examples can be cited; one, that of anticipatory bail; and two, inordinate delay as ground for bail. On both these questions the language used in Statute law is almost silent but the law declared by the Supreme Court is well known. Under section 498 read with section 497, Cr. P. C., the Court of Sessions and the High Court are competent to grant anticipatory bail in proper cases. While deciding the question of anticipatory bail, it cannot at all be denied that considerations of mala fide (or otherwise arrest are highly relevant.. This principle/rule would also by analogy, apply to cases where reasonable grounds exist to believe that when helpless in custody of law an accused person would be maltreated on account of mala fides. Similarly, on the question of bail after arrest, after some amount of uncertainty, the law is now well settled that inordinate delay is a good ground for bail even in those cases which otherwise fz"_ within the prohibition contained in subsection (1) of section 497, Cr. P. C. Thus, the ground of delay can be taken as another relevant analogy for the present discussion. It has been held that inordinate delay amounting to `abuse of process of law' furnishes good ground for bail. In Riasat Ali v. Ghulam Muhammad (P L D 1968 S C 353), the Supreme Court made the following observation in this behalf :- "Inordinate delay in the prosecution of a case, if net explained by the prosecution amounting to an abuse of the process of law can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The prosecution is expected to proceed with its case with all dispatch eliminating every avoidable delay in order to bring it to a close and thus to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other. The prosecution cannot be permitted to enlist the will of the Court on its side directly or indirectly in prolonging the worries and harassment of an accused person which are inevitably caused by his protracted detention without trial . . . . . . . But delay in the prosecution of a case or the procrastination of the proceeding in a trial furnishing as a ground for bail have to be weighed and judged in each case of its own merits". (Underlining is mine). 'When a law is declared by the Supreme Court, it is as effective and executable as any statute law. The basic principle and philosophy underlining the above observation and declaration of law by the highest Court in the realm qua the effect of `abuse of the process of law' on question of bail is not difficult to understand. At the same time it may be remarked that the law declared in this behalf is obvious, namely, that when delay amounts to "an abuse of the process of law", this can be a good ground for bail. `Abuse of process of law' as a ground for bail can not be hinged by the consideration whether the bail is before or after arrest. If the Court is competent to grant the same after arrest on this ground it can certainly give the same relief before actual/ physical arrest, if reasonable grounds exist to believe that when in a particular custody the accused might be killed or tortured ; which would of course be `abuse of process of the law' relating to arrest/custody/detention. Thus considered `abuse of process of law' is a good ground for bail. To further illustrate the point it is necessary to pose and answer another question. If an abuse of process of law' in the form of inordinate delay has already taken place it becomes a good ground for bail even in cases falling within the prohibition of scction 497(i) Cr. P. C., would it make any difference if the: Court comes to the conclusion that when arrested the accused would become victim of torture, another form of `abuse of process of law'? My answer is ire the negative. To borrow the words from the Supreme Court ruling, the prosecu tion cannot be permitted directly or indirectly "to enlist the will of the Courts" on its side in perpetuating and/or initiating any form of abuse of process of law. If the circumstances of a particular case are such that they give rise to a genuine and reasonable apprehension and reasonable grounds to believe that process of law relating to arrest, custody and detention qua criminal cases would be abused by subjecting the accused when arrested, to death or torture ; then there is no bar in section 497/498, Cr. P. C. or rule 49 of Defence of Pakistan Rules to follow the declared law and allow bail to the accused ; which in such circumstances can (also) be in the nature o `anticipatory bail' subject of course, to other conditions relating to such bail, being satisfied I, therefore, overrule the objection of the learned Assistant, Advocate-General and holy that depending upon the circumstances of each case, if reasonable grounds exist to believe that when arrested the accused would be given such treatment as would amount to `abuse of process of law',. it would be a valid consideration and ground for bail before arrest.

22. I have already found it as a fact that the apprehensions of the petitioner are not unreasonable and can be entertained by any reasonable person. There are reasonable grounds to be believed that his fears are genuine. T here is no allegation or assertion that the petitioner is likely to misuse the concession of bail. There is also nothing in the circumstances of the case which might impel this Court not to follow the ruling of the Supreme Court in Khalid Saigal's case (P L D 1962 S C 495) that mere heinousness of the alleged offence is no ground for withholding bail. I, therefore, keeping in view the above finding and all the facts and circumstances noted and discussed in this judgment, including the peculiar attitude of the prosecution (about which serious mala fides are alleged,, namely ; the delay in the registration of the case and the delay in completing the investigation of the case which it is obvious could not have been in any way lengthy, as also the State concessions with regard to interim bail, accept the bail petition and confirm the interim order passed in this behalf on. 25-10-1973.

23. When allowing bail to an accused person in a case like the present one, the law, does not, keeping in view the gravity of the allegation, bar the Court to put him under necessary conditions. The petitioner is accused of, amongst others, an offence under section 123-A, P. P. C., subsections (2) & (3~ whereof read as follows :- "(2) Notwithstanding anything contained in any other law for the time being in force, when any person is proceeded against under this. section, it shall be lawful for any Court before which he may be produced in the course of the investigation or trial, to make such order it may think fit in respect of his movements or his association or communication with other persons, and of his activities in regard to dissemination of news, propagation of opinions, until such time as the: case is finally decided. (3) Any Court which is a Court of appeal or of revision in relation to the Court mentioned in subsection (2) may also make an order under that subsection." In the circumstances of the case there can be no difference on the question of `appearance'/`production' of the accused before the Court. The petitioner has already surrendered to. the custody of this Court and is under restraint of bail and surety bonds. If a Magistrate can, under subsection (2) pass an order prohibiting an accused person from propagation of certain opinions until such time as the case is finally decided, this Court as appellate and revisional Court can certainly make such an order under subsection (3). Learned counsel for the petitioner has not in fact raised any contest in this behalf I, therefore, accept the prayer of the learned Assistant Advocate General and direct that the petitioner shall neither make any statement containing material as is mentioned in the letter (Annexure 'B') nor would express such an opinion in writing. This, of course, would also apply to the opinions expressed in his statement contained in Annexure `A'.

24. At the time of announcement of the orders, a situation developed in which, though it was not disputed that the petitioner needed protection by the police, yet the question of the power of this Court, while granting, bail, to deal with such a situation was not argued in any detail by any of the learned counsel. However, a little while earlier thereto, while opposing the grant of anticipatory bail on the ground of apprehension of maltreatment, learned Assistant Advocate-General bad contended that the fears of the petitioner could be allayed by giving necessary directions to the police in this behalf, i.e., for his protection. I have considered this question. If an accused person is released on bail subject to his furnishing of bail and surety bonds ; till he is discharged of those bonds he remains physically bound in certain respects including that relating to his appearance before the Court. One example of restraints has already been dealt with. He has been put under certain conditions. There are some other conditions also. Thus he, instead of going into or remaining in police custody, comes under judicial restraint by virtue of the bail and the bonds submitted in connection there with. 1n this situation it is the duty of the Court to prevent any apprehended abuse of process of law' where the accused is under restraint of its (Court's) process. It is not necessary to further discuss the power of subordinate Courts but the High Court, while granting bail in such like circumstances, can (if not under section 498/497, Cr. P. C., qua its charge a restrained accused person), under section 561-A., Cr. P. C, make directions so as to prevent the `abuse of process of Court'. In this behalf, it would be process relating to bail and bail bonds. In any case, it can also be done under section 561-A, Cr. P. C. "otherwise to secure the ends of justice". Thus the direction given in this behalf to the police in the short order passed on 9-11-1973 and reproduced in para. 6 of this judgment was not only proper but also within the competence of this Court.

25. As I have held that this Court has power under section 498 read with section 497, Cr. P. C. to grant bail on the ground of apprehended `abuse , of the process of law' as is involved in this case, it is not necessary fort . me to consider the scope of power of this Court in writ jurisdiction to grant similar relief and/or the jurisdiction conferred on it under section 491 and section 561-A, Cr. P. C.

26. Before closing this judgment, it is necessary to remark that, as already mentioned, the registration and investigation of this case should not have taken long. The authorship of the impugned material could have been ascertained within few days and, as the petitioner has already admitted it (the authorship), if the police had approached him earlier, there is nothing to come to a conclusion that he would not have acted in the same manner, i.e., he would not have admitted the authorship. The offences being very serious, including those of sedition and treason, I fail to understand why the law enforcing agencies did not consider it necessary to conclude the investigation well within reasonable time. The allegation of the petitioner in this behalf is that it was due to political motivation. It means that if that is so, the process of law has not been observed in a normal way on account of irrelevant considerations. Though while taking it into account only on the question of bail, I have rejected the argument advanced on behalf of the petitioner that this, by itself, is sufficient for setting aside an investigation; yet I am constrained to remark that question of trial of offences, particularly serious ones relating to the integrity of the State and security of the country, in which the State as an entity representing the public becomes a prosecuting party, should be dealt with in a detached manner uninfluenced by momentary considerations. These observations, it is clarified are not intended to deny, and they do not in any way come in conflict with, the powers' of the State functionaries with regard to withdrawal of cases in accordance with the provisions of law, even on considerations which are normally, for security reasons, not made known to the public. But for that purpose there are strict procedures laid down in the law ; and administrations of criminal justice will be better served if, instead of adopting any other strategy or means, the provisions of law are observed.

27. It also needs clarification that the findings, remarks and observations made in this judgment with regard to allegations against some members of the police should not in any way be read as wholesale condemnation of the police force in this country. Many of them are dedicated servants of State. In a recent judgment in a murder appeal, Asif Jang v. The State (Criminal Appeal No. 63 of 1970), delivered on 24-10-1973, I noted and made observations of appreciation for, the conduct of a Police Foot Constable in the performance of his duties. While sending a copy of the judgment in that case to the- Inspector-General of Police, Punjab, I had recommended for necessary procedures for the protection of the legitimate interests of such members of the force. But I am constrained to remark that any misuse of police force from any side for unlawful purpose-, when it is on large scale or for a long period, can irreparably damage the image thereof with, if not more at least, equal corresponding loss of hope in, and respect for, legal processes, in public mind. In that case the resultant harm to the rule of law and social order and structure can be colossal. K.B. A. Order accordingly.