P L D 1978 Kar (PLP)

7. Given that the meeting was held at the time and place, as mentioned by the prosecution witnesses, and the appellant bad addressed thereat, and ft being a common ground that some of the defence witnesses were also present at that time, the rival versions have got to be examined in juxta position. U. W Ghulam Nabi Perdesi and Malik Ghulam Mustafa Khar, and some of the defence witnesses, who were admittedly present in the meeting. have stated‑and they have not been challenged in cross‑examination in that regard‑that a reception was arranged in honour of Messrs Haneef Ramey and Malik Ghulam Mustafa Khar on the evening in question at Cafe Khayaban, Qaidebad, but, because of the police pressure, the proprietor bad backed oat, and therefore the venue had to be shifted to the office of the Muslim League on Bunder Road. which was situated on the first floor. This is also the version of Malik Ghulam Mustafa Khar, who also ass riot tested in cross‑examination. As these statements passed totally unchallenged, there can possibly be no reason to doubt their assertion. It has also been stated by D. W. Kazi Iftikhar Ali. an Advocate on the tolls of this Court and the Vice President of the Muslim League, that there was no arrangement of any loud speaker in the meeting. The defence witnesses, who were present‑and the presence of some other, Including Bostan Ali Hoti, is not in dispute‑bane stated that therd were 70 to 150 people at the out side, present on the occasion. It was just an estimate. As the entire audience, including the speaker were seated on durries, nobody would have been interested in counting the number. The defence witnesses have stated that it was a meeting of Muslim League Members and office‑bearers for re‑organising and rejuvenating the Muslim League. The prosecution witnesses, however, put the number between 800 to 1000. Let us see as to what was the dimension of the office of the Muslim League, as given by the various prosecution witnesses S I. Sabir Ali has stated that the hall measured 40 ft. x 20 ft. According to Muhammad Ilyas, It would be 20 ft. x 20 ft. Muhammad lqbal has it, that it was 30 It. x15 ft. Muhammad Sarwar puts it as 18 ft, x 12 ft. It was therefore, a small hall, and, though some of the witnesses stated that there were some listeners even beyond the gate of the hall, up to the stair‑cage the accommodation could possibly not permit the presence of 1000 peoples thereat at all. No attempt has been made to show that the meeting was advertised in the Press. or. that leaflets had been distributed, or, posters had no affixed in that connection. As referred to earlier, the meeting at the office was a last minute arrangement, and what is more, it was not in the open, or, the ground floor of the building. In the absence of load speakers and amplifiers, therefore the passers‑by would not be attracted. S.I. sabir Ali had a duty to perform, and. if he is to be believed on the in trinsic merit of his testimony, might have shadowed the organisers of the func tion, or. its chief guest and speakers, but the rest of the prosecution witnesses, who were totally disinterested in political activities of one vintage or the other, all the same made it, and we must, therefore, advert to them first.

8. Muhammad 1qbal and Muhammad Ilyas profess to be estate brokers. They were carrying on their business jointly, and earned Re. 600 to Re. 700 each per month. They ply their business at cabin of some sort on a foot path in Thatai Compound. They fount their way to the ball very much in time and were contended to remain standing outside the outer door of the hall. Once the meeting was over, S. I. Sabir Ali had taken the brace of the‑n together dove stairs, and informed there that he was a Police Officer. At some fifteen places beyond the venue of the meeting. as stated by Muhammad Ilyas, S.I. Sabir Ali had read to them the entire record of the meeting from his short‑hand note book, and. after they had been satisfied about the correctness of the record, they affixed their signatures on the last page of the note, though both these witnesses stated that the treading of these 31 pages from the snort‑band note book took about fifteen minutes. and that is more or less also the version of S. I. Sabir Ali. After S.

1. Sabir Ali had got the signatures, he had directed them to report at the Risala Police Station the next evening. Muhammad Ilyas says that. from the mode of the talk and dealing of S. I. Sabir Ali, he was satisfied that he was talking to a Police Officer. So, in obedience to the directions, the neat day, they went to the Police Station, and this time, they went through the ordeal once again. This time, all tire 48 pages of long hand were assiduously signed by them. At the trial, they rehearsed at least the salient features of the appellant's speech. However, they blandly maintained that the speeches of the other speakers, some of which were more pungent, were totally obliterated from their memory.

9. Muhammad Sarwar manages a refreshment room on the Napies Road, and two other bars. He lives in Defence Housing Society, and states that he was passing by the Bunder Road, when he happened to stroll into the hall. On his own showing, this was his first taste of a public meeting. It is, therefore, anybody a guess a3 to what wind blew him there? Sabir Ali, Muhammad Ilyas and Muhammad Iqbal have clearly deposed that they did not know anybody in the gathering. That is also the version of this witness. And he was examined by the Police on 19‑4‑1976 i.e. three months after the incident. The question. therefore, arises as to how S. I. Moazzam Hussain, the Investigating Officer, came to know of his presence is the meeting? The witness admits that he had been run down in a proceeding under the Goondas Act (Disorderly Persons Control Act) in 1965. S. H. O. Akbar Ali who was called by the Defence and had brought the relevant record, deposed that the witness had been externed from Karachi for a period of two years, though eventually the order was set aside by the High Court. Patently he is a speak easy witness, at the back and all of the police. The fact that he was examined three months later. and without there being any clue of his presence, is sufficient to reject his evidence on this score alone. P. W. Masood Parvez was also a mere passer‑by, but he felt so uneasy with only the appellant's speech that he slunk away within fifteen to twenty minutes. This was not his maiden participation in a political meeting, as he has let fall, that he bad attended one meeting earlier, and that eras addressed by Mr. Abdul Hafeez Pirzada. He was also examined as late as 19‑4‑1976.

10. As referred to earlier. the appellant denied to have uttered the passages, which ate the subject‑matter of charge. Professor Ghafoor Ahmed, M. N. A., Raja Munawwar Ahmed, M. P. A. and Mufti Mahmood, M. N. A. were not there, but the other defence witnesses, excluding S. H. O. Akbar Ali were there. They have all started that the meeting was for the purposes of re‑organisation, and the main speakers were Malik Ghulam Mustafa Kbar, and Muhammad Haneef Ramay, who had a little earlier joined the Muslim League Party, They have said that there was nothing objectionable to the brief remarks made by the appellant. When the defence counsel wanted to draw the attention of Malik Ghulam Mustafa Khar, whether the subject‑matter of the charge was uttered by‑ the appellant, the learned Additional Advocate‑General objected to the same, and the objection was upheld by the Tribunal. There could be no naivete about tae witness's stand. It is difficult to remember a speech or even a gent of a peroration, and that too after a number of months. The question may be dubbed leading in the sense that there was a "suggestive" Question, that is, a question which suggests the answer, or, admitted of a conclusive answer by a simple negative, or, affirmative. According to section 142 of the evidence Act, leading questions, must not, if objected to by the adverse party, be asked in examination‑in. chief, or, re‑examination, except with the permission of the Court. It goes on further to say that the Court "shall permit leading questions as to matters, which are introductory, or undisputed, or which have, in its opinion, been already sufficiently proved. However, the rule has got a number of exceptions, and one of them is, that where a witness is called to contradict another as to expressions used by the latter, the former may be asked, sot merely what was said, but whether the particular expression was used, since otherwise the contradiction might never be arrived at (See Edmond v. Walters (3 Stark 7), Phipson Ev. 6th Edn., pp. 488‑

9. The Special Tribunal was, therefore, clearly in error to have overrated the Question for two defence witnesses, whereafter the effort was given up.

11. But that was not the end of the matter. The trial was held within the jail premises, to camera. The conduct of Court proceedings of a ease in camera came for comments in Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf (P L D 1963 S C 51). But the more pertinent case to refer would be Ch. Ghulam Muhammad and others v. The State (PLD196SC175). In the precedent case, the trial was hold under section 5 (L) and 5 (2) of the Official Secrets Act. The A. P. P. filed an application under section 14 of the said Act, praying that all proceedings in the case be held in camera. It was stated therein "that since it would be prejudicial to the interest of the State to allow the public to watch the proceedings of this case, they (the proceedings) may be held fn camera". The application was granted, and the order was upheld in a Revision petition by a learned Single Judge of the High court in the following words :‑ "Section 14 of the Official Secrets Act, authorises the Magistrate to pass an order of the type he has passed, if he comes to the view. that publication of the evidence that would be lea before him in support of the complaint would be prejudicial to the safety of the State. The Magistrate has a discretion vested in him under section 14 of the said Act to pass an order of this type He has exercised the discretion and has passed a detailed order covering about ‑3 pages." Section 14 of the Act reads as under ;‑ "In addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any pa‑rain for an offence under this Act or the proceedings on appeal, or in the course of the trial of a person under this Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that ail or any portion of the public shall be excluded during any part of the hearing the Court may make an order to that effect, but the passing of sentence shall in any case take place in public." In the appeal by special leave, their Lordships observed : "In understanding and applying and applying this section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor but the Magistrate has to determine the Matter judicially. It, therefore. follows that the Magistrate in granting the prayer of the Public Prosecutor must exercise a judicial discretion This would necessarily mean that he has to satisfy himself upon the materials before him that for safety of the State the trial should be held l camera and that it was not an attempt to interfere with the normal course of justice for illegitimate reasons or purpose. In other words, he must not pass an order without a careful and proper scrutiny of the grounds on which the application is made."

12. Looking to the facts in the precedent cafe, no evidence was so be led, which involved disclosures of matters which might have bran fraught with grave consequences to the State, and thus necessitated such an order.

13. Even the appreciation of the evidence by the Special Tribunal has hardly anything to command. Four of the five prosecution witnesses were mere chance witnesses and though a chance witness may not necessarily be a false witness, yet it is proverbially rash to rely on their testimony in the absence of some circumstance plausible enough to snake assurance doubly sure, in support of the testimony. It is remarkable that the two estate agents, in spite of the awe with which they had been struck by the mere sight of the 11 Police Sub‑Inspector, insisted on the entire speeches being read over to these before they agreed to affix signature on the note book. It is still more amazing that S. I. Sabir Ali deemed it necessary to obtain their signatures, He did not say that it was in the ordinary course of things‑and he could not say so. The moral is obvious. It was a make‑believe stratagem. devised to establish the presence of these two witnesses at the meeting. The other ‑two witnesses also, one of whom was with an unsavoury past, and the other presented a nonchalant approach, could hardly be preferred as against the testimony furnished by the defence witnesses, who were entitled to some attention. Otherwise too, it is difficult to believe that a politician and the appellant was one of the outstanding ones‑and about whom Mufti Mahmood had chosen to say that he was the soul of the U. D. F. would recant his words of a speech made before a gathering, how modest so ever. Some of the defence witnesses have also testified that the appellant was framed in the case, as he had incurred tae wrath of the then Prime Minister, Looking to the circumstances involved, I am clearly of the opinion that the prosecution witnesses axe totally unworthy of any reliance, and their version is Just a tissue of brazen‑faced lies. That is enough to dispose of the appeal. 14, Mr. Khalid M. Ishaq, learned counsel for the appellant, however, referred to a number of cases in support of his contention, that. otherwise too, the speech alleged to have been delivere4 by the appellant would not fall within the mischief of rule 42(6) (e) of the Defence of Pakistan Rules. There were‑ (i) Z. A. Sulleri and others v. The Crown P L D 1954 Sind 80. (ii) The State v. Abdul Ghaffar Khan P L D 1957 Lah. 142. (iii) Hussain Bakhsh Kausar v. The State P L D 1958 Pesh. 15. (iv) Ali Hussain Jamali v. Government of Sind P L D 1974 Kar. 283 ; and (v) Province of East Pakistan end others v. Tufazzal Hussain Printer arid Publisher of the Dally, 'Ittefaq' P L D 1965 S C

520. It will not be necessary to examine them, all the more for the reason, that Mr. A. H. Lakho. Additional Advocate‑General, notified that the Government did not want to support the judgment.

15. In the result. I would set aside the conviction and sentence, and allow the appeal. As the appellant bad already been set at liberty, and no bail bonds are involved, no further orders would be called for. S. A. NUSRAT, J.‑I agree. S. A. H. appeal allowed.