P L D 1967 Dacca 43 (PLP)

MURSHED, C. J.‑We have perused the application for bail and have had the advantage of listening to useful arguments addressed to us from the Bar during which an important point of law arose for our consideration, namely, whether the present bail application can be allowed, having regard to the provisions of Rule 206. framed under the Defence of Pakistan Ordinance, 1965. It was contended that the limitation imposed by Rule 206 (b) of Defence of Pakistan Rules is applicable in respect of all Rules and Orders contained in the said Rules and that no specific notifi cation under Rule 206 is necessary to attract the provisions of Rule 206 (b). Rule 206 reads thus: "Notwithstanding anything contained in the Code no person accused or convicted of a contravention of these rules or orders made thereunder, if in custody, be released on bail or on his own bond, unless. (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these rules orders made thereunder as the Central Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention." In the present case the applicant was accused of having inter alia, contravened the provisions of Rule 42 (a) of the Defence of Pakistan Rules, and it is contended by the learned Deputy Legal Remembrancer on behalf of the prosecution that in a case where there is an accusation under any rule or order made thereunder, and the application for bail is opposed by prosecution, the only circumstance under which the Court could allow bail would arise on the Court's statisfaction that there were reasonable grounds for believing that the applicant was not guilty of the accusation. We do not think that this contention is tenable. If the aforesaid Rule is analysed, it would become patent that the first paragraph of it is a general bar applicable to all the Rules and Orders made thereunder. This general bar is merely confined to the requirement of giving an opportunity to the prosecution to oppose the application. If the application is not opposed, the Court may or may not grant the bail. If the application is opposed, then only in cases of contravention of such Rules or Orders as have been specifically notified in this behalf under Rule 206 that the bar or limitation under Rule 206 (b) will come into operation. In other words, it is only in cases where the contravention is of Rules or orders notified under Rule 206 that the additional limitation imposed by Rule 206 (b) would be attracted. The requirement of being satisfied as to the existence of reasonable grounds for a belief that the applicant is not guilty of such a contravention is a mandate which would come into play only in cases of contraven tions of such Rules and Orders as have been specifically notified in this behalf, namely, under Rule 206 (b). This appeals to be the plain meaning of Rule 206 (b). In cases of alleged contraventions of non‑notified Rules and Orders as indicated above, the jurisdiction of the Courts to grand bail would not be limited by Rule 206 (b). In order to pray in aid the limitation upon the jurisdiction of Courts to allow bail it would not do merely to allege a contraven tion of a Rule or order unless the said Rule or Order is notified under Rule 206 (b). Otherwise, the only restriction under Rule 206 'is the requirement to give the prosecution an opportunity to oppose the application before allowing bail. It has, however, been contended by the learned Deputy Legal Remembrancer that the expression "notification" means the initial notification which has brought the Rule or Order into operation. He has argued that in every case where there is contravention of a Rule or Order made under the Defence of Pakistan Rules the limitation contemplated would be automatically attracted if the application is opposed on behalf of the prosecution. It has been further urged that the bar is absolute when there is opposition to the granting of the bail by the prosecution. We do not think that such a construction of the Rule is possible. The argument advanced by the learned Deputy Legal Remembrancer ignores the qualifying word "such" before the term "provision" in clause (b) of Rule

206. Furthermore, the interpretation sought to be spelt into Rule 206 (b) by learned Deputy Legal Remembrancer ignores the words "specify in this behalf". The fallacy of this line of argument is, therefore, obvious. The expression "specify in this behalf" must, of necessity, mean specify for purpose of Rule 206 (b). The position, therefore, boils down to this that in case of ‑an allegation of contravention of a Rule under the Defence of Pakistan Ordinance, 1965, or orders made there under, whenever there is an opposition by the prosecution to the granting of bail, the restriction imposed by clause (b) of Rule 206 would come into operation only in respect of contravention of Rules and Orders which have been notified under Rule 206 (b). The bar under Rule 206 (b) would not apply to any other case, for instance to the case before us, it being admitted that Rule 42 (a) has not been notified under Rule

206. In this application our attention was drawn to Rule 206, as quoted above, merely because, amongst the numerous charges which have been levelled against the applicant, there happens to a charge of contravention of Rule 42 (a), which does not appear to have been notified under Rule 206 (b). But, having regard to what we have stated above, we hold that mere accusation against the applicant under Rule 42 does not, by itself, attract the provisions of clause (b) of Rule 206, because Rule 42 or the violation of an order passed under Rule 42 has not been shown to have been notified within the meaning of Rule 206 (b). Therefore, there is no bar to this Court's allowing the application. Having heard learned Advocates for the parties, we feel that the applicant should be allowed to sit for his ensuing B.A. Examination for which he is a candidate. We had allowed the parties to settle the matter and granted a short adjournment on this ground. We have been, subsequently, informed, in course of the day, that suitable arrangements have been made in order to enable the applicant to sit for his B.A. Examination while in jail custody. The learned Deputy Legal Remembrancer, has under taken, on behalf of the Deputy Commissioner of Dacca, to complete and finalise the said arrangement. We, therefore, feel that no further order is necessary at the present moment. The application is disposed of accordingly. MAKSUM‑UL‑HAKIM, J.‑I agree. K. B. A. Order accordingly.