1990 P Cr (PLP)

4. Regarding the alleged offence under section 124-A, Cr.P.C. it was argued on the strength of judgment reported as Nlaulana Dost Muhammad v. The State 1976 P Cr. L .1 184 and section 196 CC.P,C. that no prosecution can be launched against the petitioner, no Court can take cognizance of any such offence except 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". The precise argument was that the petitioner cannot be prosecuted for alleged offence under section 724-A, P.P.C. in pursuance to the F.I.R. registered against hire at the instance of Safdar Ali, Assistant Director S.I.U. therefore, the petitioner is entitled to grant of bail for the offence allegedly committed under section 12-t-A P P.C. also.

5. In order to appreciate the above contentions. it will be appropriate to reproduce the relevant provisions of the Official Secrets Act, 1923 Section 3 of Act is as follows- 3. (1) if any person for any purpose prejudicial to the safety or interest of the State

(a) approaches, inspects, passes over or is in tire vicinity of, or enters, any prohibited place or - (b) makes any sketch; plan, model, or note which is calculated to be or is intended to be, directly or indirectly, useful to an enemy; or (c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass-word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be 'or is intended to be, directly or indirectly, useful to an enemy; he shall be guilty of an offence under this section". Subsection (3)which prescribes punishment of an offence under section 3 of the Act reads as follows: "(3) A person guilty of an offence under this section shall be punishable- (a) Where the offence committed is intended or calculated to be, directly or indirectly, in the interest or for the benefit of a foreign power, or is in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan or in relation to any secret official code, with imprisonment for a term which may extend to fourteen years, and (b)in any other case, with imprisonment for a term which may extend to three years." Sections 3-A (1) (3) are as follows: "3-A.

(1) No person shall, except under the authority of a written permit granted by or on behalf of the appropriate Government, make any photograph, sketch, plan, model, note or representation of any kind of any prohibited place or of any other place or area, notified by the appropriate Government as a place or area with regard to which such restriction appears to that Government to be expedient in the interest of the security of Pakistan, or of any part of or object in any such place or area. (2)............................................................... (3)If any person contravenes any of the provisions of this section, he shall be punished with imprisonment for a term which may extend to three years or with fine or with both."

6. Considering the F.I.R. as it is, it may be observed that the allegations' contained therein are general in nature. It is a question to be decided by the Court after the trial whether in the circumstances of this case it would turn out to be a case of an offence punishable with imprisonment for fourteen years or for A three years. In view of the relevant law reproduced above the argument of learned counsel for the petitioner has considerable force, that it is a case of further inquiry whether it would fall within clause (a) of subsection (3) of section 3 or clause (b) of the Official Secrets Act, 1923. Offence under section 3-A is punishable only with imprisonment for a term, which may extend to three years or fine or with both. Section 12 of the Official Secrets Act, 1923 as pointed out by Mr. S.M. Zafar, Advocate provides that an offence under this Act other than an offence punishable with imprisonment for a term which may extend to fourteen years shall be cognisable and bailable offence. The burden lies on the prosecution to establish through evidence by bringing material on the record during the trial of the case that in the circumstances of the case sentence of fourteen years should be awarded. Mr. Abdul Baseer Oureshi, Standing Counsel of the Federal Government has taken me through pages 20, 21, 96, 97, 104, 106, 107, 109, 117, 128, 169 and 278, of the Book and argued that the said portions of the book sufficiently disclose that the offence falls under sections 3 and 3-A of the said Act calling for punishment for imprisonment of fourteen years. I have examined the said portions of the book in order to appreciate the, contentions to find out whether prima facie the case falls within the prohibition clause of section 497, Cr.P.C. Without commenting upon the merits of the case so that it may not prejudice the trial of the case, after going through these above-referred pages of the book, I am not persuaded to share the views of the learned Standing Counsel. Learned Standing Counsel further submitted that the book itself is the primary evidence in the case and further evidence shall he produced at the trial of the case to establish circumstances that the petitioner was guilty of an offence punishable with imprisonment of fourteen years. At present after examining the relevant portions of the book referred to by the Standing Counsel and in the absence of any other material as yet collected by the investigating agency, prima facie there exists no reasonable ground for believing that the petitioner accused has committed a non-bailable offence and in view of provisions of sections 3 and 3-A of the Official Secrets Act, 1923 it is a case where there are sufficient grounds for further inquiry into his guilt so far as the offences under sections 3 and 3-A are concerned because it was ultimately the Court which is to form an opinion whether the alleged offence would fall within clause (a) or (b) of subsection (3) of section 3 of the said Act. 7.Reverting to the offence under section 124-A, P.P.C. it is provided in section 196 Cr.P.C. that no Court can take cognizance of any offence punishable under Chapter VI of the Pakistan Penal Code except on complaint made by order of, or under authority of the Government. Section 124-A falls in Chapter VI of P.P.C. therefore prima facie the argument of learned counsel for the petitioner appears to be correct who is supported by a reported judgment referred to above. It was not argued by the learned Standing,, Counsel of the Federal Government that the Central Government gave authority to any person to make a complaint. Even otherwise the offence under section 124-A, P.P.C. has been made punishable with imprisonment for life to which fine may be added or with imprisonment which may extend to three years to which fine may be added or g with Fine therefore it can safely be assumed at this stage that prima facie the case under section 124-A P.P.C. is also of further inquiry and it is ultimately the Court which is to form an opinion after considering the material to be brought on record in evidence whether in the circumstances it would be a case punishable with imprisonment of three years or life. Learned Standing Counsel has argued, with reference to pages 217 to 223 of the book in order to demonstrate that the contents of the said pages are sufficient to arrive at conclusion that the case falls under section 124-A P.P.C. As discussed above, keeping in view section 196 Cr.P.C. as also the relevant portions of the book relied upon by the learned Standing Counsel and without commenting upon the merits of the case, there exist no reasons for believing that the petitioner can be prosecuted in pursuance to F.I.R. recorded at the instance of Safdar Ali Assistant Director S.I.U. who was not authorised by the Central Government to make a complaint and as such it is a case of further inquiry.

8. It was not argued that the petitioner is a previous con%7ct or that he was ever proceeded against as a journalist under Press and Publications Ordinance, 1963 or under the general laws of the country for having violated such laws. The main evidence in the case as pointed out by the learned Standing Counsel is the book itself therefore there is no possibility that the petitioner if bailed out can tamper with the said evidence. It was also not argued by the learned Standing Counsel that there was any apprehension of his absconding. The petitioner is admittedly in judicial lock-up since 13-8-1989. In these circumstances, concession of bail cannot be denied to the petitioner as a punishment.

9. So far as allegations in the F.I.R. that the contents of the book are such which may tend to affect the existing cordial relations of the State with the foreign countries are concerned prima facie the same do not fall within section 3 or section 3-A of the Official Secrets Act, 1923 or section 124-A, P:P.C. Learned C counsel for the petitioner rightly pointed out that for such matter it may be a case justifying action under section 24(1) of Press and Publications Ordinance, 1963 which deals with such a situation.

10. For the foregoing reasons, the petitioner is allowed bail in the sum of Rs.1,00,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of Deputy Registrar of this Court. H.B.T./Z-149/L Bail granted.