1989 P Cr (PLP)

(v) Extract from the police diary. (vi) Provincial Government s sanctions dated 26‑2‑1987 and 1‑3‑1987. It may be observed that the above alleged statements of the Police Head Constable and Constables are in fact prima facie, reproduction of the D.I.B. report and the above statements do not contain individual speeches of each of the applicants, nor the above statements contain the date or the person who recorded the same. Syed Sarfaraz Ahmed, learned Assistant Advocate‑General has candidly submitted that he does not have any other material for the time being to place on record. The position which emerges is that the prosecution does not have either the veleatim script of the speech of each of the applicants in the first bail applications nor the gist of speech of each of the applicants separately.

6. Mr. Mohammad Hayat Junejo in furtherance of his above submission as referred to the following cases: (i) Sardar v. The State 1970 P Cr. L J 773 in which a learned Single Judge of the Lahore High Court which considering a bail application in a murder case held that a joint extra‑judicial confession has no veidentiary value and, therefore, excluded from consideration. Bail was granted. (ii) Mamoon and 9 others v. The State 1971 PCr.LJ 197, In the above case also a learned Single Judge of the Lahore High Court while considering a bail application in a murder case held that joint extra judicial confessions is not admissible and, therefore, granted bail. (iii) Haji Ahmad and another v. The State 1979 PCr.LJ

460. In the above case a Division Bench of the Lahore High Court while allowing an appeal in a murder case held that joint extra judicial confession has no value. (iv) Manzoor and others v. The State P L D 1957 (W.P.) Lah. 1023, in which a Division Bench of the erstwhile High Court of West Pakistan while allowing an appeal of some of the accused held that joint extra judicial confession has no value and cannot be relied safely. (v) Amir Ali v. The State P L D 1980 (W.P.) Kar.

758. In the above case a Division Bench of the erstwhile High Court of West Pakistan comprising of Qadeeruddin Ahmed (as he then was) and I.B. Khamisani, JJ. While allowing an appeal in a murder case and while considering sections 27 and 8 of the Evidence Act held that where the joint act of several persons are sought to be proved, in order to ask the Court to draw an inference from such conduct, evidence should be led with some degree of particularly so that it may be possible for the Court to draw the necessary inference from the conduct of each one of the persons concerned in the act. (vi) Khalas Khan and another v. The State 1975 PCr.LJ

172. In the above case a Division Bench of the Lahore High Court held that joint recoveries are not admissible in the absence of any evidence on the point as to which accused first led to the place of recovery. (vii) Abdul Ghani and 3 others v. The State 1976 PCr.LJ 1462. In the above case a Division Bench of erstwhile High Court of Sind and Baluchistan comprising of Mr. Justice Muhammad Haleem and MA. Rashid, JJ. (as they then were). While allowing an appeal in a .... murder case held that recoveries made on pointation of several accused jointly was not admissible. In this regard referred may also be made to the following cases: (i) Kidar Nath Sahgal v. Emperor A I R 1929 Lah. 817, in which a learned Single Judge of the Lahore High Court while construing section 124‑A inter alia held that in properly construing a speech, it has to be read as a whole in a fair, free and liberal spirit, and one should not pass on an objectionable sentence here or a strong word there. (ii) Maniben Liladhar Karan v. Emperor A I R 1933 Born.

65. In the above case a Division Bench of the Bombay High Court while construing sections 124‑A and 153‑A held that in determining the effect of a speech the Court has to look at the speech as a whole, and not to pay under regard to any particular sentence or phrase and that looking at the speech as a whole the Court has together from the language used what the intention of the speaker was.

7. From the above cited and referred cases, it is evidence that by now it is a well‑settled principle of criminal jurisprudant that a joint extra‑judicial confession or a joint recovery cannot be admissible on a piece of evidence against an accused persons. It is also evidence from the above two referred cases of the Lahore and Bombay High Courts that in order to examines, whether a speech falls within the which of section 124‑A or 153‑A of the Code, the Court has to construe the speech as whole and not to give emphasise on a particular portion of the speech. In the above four bail applications as pointed out hereinabove neither the verbatim speeches of the applicants nor the gist of their speeches are available. Whereas in the aforesaid fifth bail application even D.I.B. report or any other document containing the joint report of the speeches has not been placed on record, though the averments made in the complaint are of serious nature, and may fall within the mischief of the sections charged with. Mr. A.A. Mohammadally learned Additional Advocate‑General has relied upon the press cuttings of 'Jang' and 'Ibrat', though not placed on record. Apart from the fact that it is a debatable point, whether we can look into the press reports at this stage without ascertaining their authenticity, the above press report when read out in the Court did not tally with the complaint. Then it was submitted by Messrs A.A. Mohammadally and Syed Sarfaraz Ahmed that this Court cannot examined the question, whether there is any reliable evidence on record at this stage, whereas learned counsel for the applicants, Messrs Mohammad Hayat Junejo and Mir Mohammad Shaikh have urged that even at the bail stage a tentative assessment of the nature of the evidence on record is to be made. We are inclined to hold that the prevalent view is that even at the bail stage the Court has to examine tentatively the nature of the evidence available against the accused person charged with the offence, though a definite finding is not to be recorded as to the credibility of the evidence not on record. In this regard reference may be made to the following cases: (i) Chaudhry Abdul Malik v. The State P L D 1968 SC 349, (ii) Amir v. the State P L D 1972 SC 277, (iii) Khalid Javed Gillani v. The State P L D 1978 SC 356, and (iv) Professor Mohammad Haneef v. The State 1979 S C M R

459. In all the above cases the Hon'ble Supreme Court has held that the Court has toll examine the evidence, though to tentatively at the bail stage.

8. We have already dilated upon the nature of the material available on the record against the applicants. Without expressing ourselves definitely on the admissibility and credibility of the same, we may observe that the nature of the same is that which makes the cases of further injury inter alia, on the question, whether there appear reasonable grounds for believing that the applicants have been guilty of scheduled offence.

9. It was also submitted by the learned counsel for the applicants that clause (h) of the schedule of Act of 1975 only covers sub‑clauses (i) and (ii) of clause (a) of Section 2 of Act of 1974 and not sub‑clauses (3) and (4). It was further submitted that factually the alleged joint speeches do not come within the mischief of the above sub‑clauses (i) and (ii) of clause (a) of section 2 or section 124‑A or 153‑A of the Code. In furtherance of the above submission reliance was placed on the following cases by Mr. Shaikh Mir. Mohammad: (1) in the matter of the Dally Ehsan P L D 1949 Lah. 282, in which a Full Bench of the Lahore High Court while construing the provisions of section 4(1)(d) and (h) of press (Emergency Powers) Act XXIIII 1913 in relation to an Article "Muharram and Mussalman" in which the mode of observance of Muharram was criticised, held that the same has not contravened the above provision. (ii) Z.A. Sulleri and others V. The Crown P L D 1954 Sind

80. In the above case a learned Single Judge of the Sind Chief Court while construing section 124‑A, P.P.C. held that it is not every kind of disaffection, hatred or contempt which would constitute Sedition. (iii) Shaikh Fazlaul Haque alias Moni v. The State PLD 1971 Dacca 154, in which a learned Single Judge of the Dacca High Court while construing a speech with reference to Rules 41(6)(e), (g), (h) and 47 of the Defence of Pakistan Rules, 1965 held that the impugned speech is to be construed as a whole and in fair, free and liberal spirit without laying stress or emphasis on strong or irritating words used here and there. It was further held that impugned speech allegdly containing explanation of manifesto and programme of political party inviting Government's attention towards economic conditions and disparity between provinces and urging peoples to stand by its programme, does not constitute a prejudicial act punishable under Rule 47 (iv) Tofazzal Hossain v. Provisions of East Pakistan and others P L D 1965 Dacca

478. In the above case a Division Bench while controlling sections 2 (4) (c), 2 (5) and 8 of the East Pakistan Public Safety Ordinance and section 124‑A, P.P.C and section 4(1)(d) of the Press (Emergency Powers) Act, 1931 held that the provisions in the aforesaid first Ordinance were substantially same as that of section 124‑A of P.P.C and that the provisions were not intended merely to ponder to wounded vanity of an unusually touchy Government

10. In our view, it is not necessary for us at this stage to record even a tentative finding to the effect whether the alleged speeches to constitute an offence or not under the provisions charged with as we have already tentatively' taken the view that the material‑on‑record for the reasons already discussed, hereinabove, make a case of further enquiry on the question, whether there appear reasonable grounds for believing that the applicants have been guilty of a. scheduled offence. However, we may observe that the allegations contained in the complaint quoted hereinabove in para 1 which gave rise to the aforesaid fifth bail application are of such serious nature, that if some of them are true. They may fall within the mischief of the Sections charged with.

11. This leads us to the question as to the effect of subsection (6) of section of the Act of 1975 which reads as follows:‑ "5(6) An accused parson shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offences; nor shall an accused person be so released unlcs5 the prosecution has been given notice to show cause why he should not be so released." A perusal of the above quoted subsection (6) of section 5 indicates that prohibition to grant bail is not absolute but conditional and dependent on the question, whether there appear reasonable grounds for believing that an applicant If has been guilty of a scheduled offence. In other words, if the special Court or the High Court takes the tentative view that there do not appear reasonable grounds for believing that an applicant has been guilty of a scheduled offences, bail can be granted. The above position was candidly conceded by Messrs A.A. Mohammadally and Syed Sarfaraz Ahmed, learned Additional Advocate‑General and Assistant Advocate‑General respectively: whereas the learned counsel for the application have submitted that this Court can press into service the provision of sections 497 and 498, Cr.P.C. in spite of the above subsection (6) of section hey have referred to the following cases: (i) Mirza Jawad Beg v. The State P L D 1975 Kar. 628, in which a Division Bench of the earstwhile High Court of Sind and Balachistan held that i; a case of Suppression of Terrorist Activities (Special Courts) Act, 1975, Division Bench of the High Court as an appellant Court has the power it a fit case to grant interlocutory relief to release the accused on bail. (ii) Ch. Zahur Ilahi, M.N.A. v. The State P L D 1977 SC 373, in which the majority view was that even in a case triable by the Special Court for offences under the Defence of Pakistan Rules and Sections 124‑A and 153‑A P.P.C, the High Court can invoke the provisions of sections 49; and 498, Cr.P.C and can grant bail as the above provisions arc supplementary. (iii) Abdul Majid v. The Judge, Special Court (Offences in Banks), Lahore and another 1985 P Cr. L J 890, wherein a Division Bench of the Lahore High Court while construing section 5(6) of the Offences in respect Banks (Special Courts) Ordinance, 1984, held that the provision section 497, Cr.P.C. was applicable to the case pending before the Special Courts and the bail can be granted to a person accused offences mentioned in schedule under the Ordinance. (iv) Muhammad Yaqub Ali v. The State P L D 1985 Lah.

48. In the above case a Division Bench of Lahore High Court, comprising of Ghulam Mujaddid Mirza (as he then was) and Qurban Sadiq Ikram, JJ. reiterates the above Lahore view, namely, that section 497, Cr.P.C. can be invoke: even in respect of scheduled offences triable under the aforesaid offence in respect of Banks (Special Courts) Ordinance, 1984. (v) Muhammad Mjosa v. The State 1986 P Cr. L J

578. In the above case Division Bench of this Court comprising of Abdul Qadeer Chauithy (as he than was) and Mamoon Kazi, JJ. held in relations to the Schedule Offences under the aforesaid offences in respect of Bank (Specie Courts) Ordinance, 1984 that section 498, Cr.P.C. can be pressed into service by the High Court during the pendency of a case before the Special Court. (vi) Gul Mohammad and 2 others v. The State 1987 P Cr. L J

737. In the above case a Division Bench of this Court comprising of Nasir Aslam Zahid and Ally Madad Shah, JJ. while dealing with a case triable under the Suppression of Terrorist Activities (Special Courts) Act, 197 held that the benefit of provisions III and IV of Section 497, Cr.P.C. was available to the accused.

12. There seems to be preponderance of view that even in the cases triable special Courts under special laws in the absences of any express prohibition is 'relevant statute, sections 497 and 498, Cr.P.C. can be invoked inter alia, by High Court while considering a bail application. There is no express prohibition provided in the Act of 1975 as to the application of sections 497 and 498, Cr.P.C. Mr. A.A. Mohammadally has referred to subsections (1) to (5) of ion 5 of the Act of 19.75 and also section 10 of the Act of 1975 to contend that he provisions of Cr.P.C. arc not applicable. It will suffice to observe that he has over‑looked subsection (7) of section 5 which provides that "A special Court shall, in all matters with respect to which no procedure has been prescribed by this Act, follow the procedure prescribed by the code for the trial of summon cases by Magistrates." In case of any inconsistency between a provision of the Act of 1975 as to the procedure and a provision of the Cr.P.C. the former shall prevail but in the absence of a provision in Act of 1975 the provisions of Cr.P.C. will be applicable even in a trial before the Special Court. Section 10 which overrides the other law does not change the above legal position.

13. In Criminal Bail Applications Nos. 797 of 1987 and 798 of 1987 applicant Mumtaz Ali Khan Bhutto has taken an additional ground of illness. In support of the above ground, he has produced a number of medical reports of foreign experts and of Jinnah Post Graduate Medical Centre, National Institute of Cardisvascular Diseases Karachi, and the opinion of a Medical Board constituted by the Provincial Government. It will suffice to reproduce the latter which reads as follows: Proceedings of Special Medical Board As per Order No. SOVI(R)1/87, dated 16‑3‑1987, from Secretary to the Government of Sind, Health Department, Karachi, to examine Mr. Mumtaz Ali Bhutto, the Medical Board was held in the Private Ward, Jinnah Postgraduate Medical Centre, Karachi, on 17‑3‑1987 at 11‑00 a.m. The following attended:‑ (1) Professor Sharif Choudhry, Professor of Cardiology, Civil Hospital Karachi. Chairman (2) Professor Mukhtiar Azim Burza, Professor of Medicine, D.M.C./Civil Hospital, Karachi. Member (3) Dr. Sanaullah Qureshi, Medical Superintendent Services Hospital and Civil Surgean, Karachi. Member Convenor Mr. Mumtaz Ali Bhutto was examined by the Board today on 17‑3‑1987. Mr. Mumtaz Ali Bhutto has been complaining of central chest pain frequently on exertion and he consumes 2‑3 sub‑linguil Isodril tablets every day. Buring his stay as a patisent in National Institute of Cordiovascular Diseases, Karachi, he has been subjected twice for H.T.T. (1st on 16‑12‑1986 and then on 3‑2‑1987) one of these E.T.T. is strongly positive consistent with significant coronary Artery disease. Today on examination, he is it minus rhythm and R.P. is 110/70 m.v. mg. There are no cardiac corgestion signs. His resting H.C.G. shows old healed anterior myocardial infraction and a possible old healed inferior infarcation as well. In view of the symptomotolgy and a poaitive R.T.T. the members of the board are of the opinion that he should be further investigated by coronary Angiography with a view to subsequent surgical treatment as dictated by such investigation preferably abroad. Encl: A.H.C.G. tracing dated 17‑3‑1987." The above documents have not been controverted by the learned Assistant Advocate‑General Mr. Sarfaraz Ahmad. A perusal of the above documents on record clearly indicate that the above applicant needs medical attendance preferably abroad as per opinion of the Medical Board. Since we have held that the provisions of sections 497 and 498 can be invoked, in our view the above applicant has made out the above additional ground for bail. The Special Tribunal Sukkur, by its order dated 25‑8‑1987 has granted bail inter alias, to above applicant in four cases on the medical ground. The Hon'ble Supreme Court in a recent case namely Criminal Petition No. 58‑K of 1987, granted bail to Dr. Rizvi on 4‑8‑1987 on the ground of illness though he was charged with under sections 395, 385, 365, 364 read with section 109, P.P.C.

14. Before parting with the above discussions, we may refer to the case of Sardar Ata Ullah Khan v. The State reported in P L D 1963 (W.P.) Kar. 136. in which Mahiduddin Ahmad, Jan he then was, while leading with a bail application at the applicant who was charged with under section 124‑A and was facing trial before the Special Magistrate, perused the script of the alleged seditious speech which was placed before the Court and took note of the fact that no untoward incident has taken place because of the allaged sedltious speech. He granted bail to the applicant on his giving an undertaking that he will not address any public meeting on political question during the pendency of the trial. In the instant case nothing has been brought on record to indicate that on account of the alleged seditious speech any untoward incident had taken place, on the contrary the diary note in respect of the meeting held at Khalid Farm indicates that everything was all right.

15. For the aforesaid reasons, we admit the applicants to bail in the sum of, Rs.5,00,000 (Rupees five lacs) each with one surety and P.R. in the like amount in' each of the above bail applications to the satisfaction of the Registrar of the Special Court on the conditions that it will be open to the prosecution to move an, application for cancellation of bail is case the applicants misuse the concession of bail and make any speech or statement, which may fall within the mischief of any, of the sections with which the applicants have been charged with. M.Y.H./A‑417/K Bail granted.