1973 P Cr (PLP)

The above all aim at inciting the Army to refuse to comply orders to them and also generally to bring into hatred and contempt and to excite disaffection towards the Government established by law, which are offences punishable under section 123-A, P. P. C. and section 42 (6) (e)/49 of the Defence of Pakistan Rules. A case is therefore, registered against the Editor, Printer, Publisher and Distributor of the Handbill for the said offences."

3. Following the First Information Re of the officer pro ceeded to investigate the offence, recorded the statements of three persons under section 161 of the Code of Criminal Procedure and proceeded to arrest the applicant for alleged contravention of rule 42 (6) (e) of the Defence of Pakistan Rules and section 123-A, P. P. C. The applicant moved an application for bail before the learned S. D. M. who by his order dated 4-6-1973 rejected it without altogether applying his mind to the matter. A second bail application was moved before the II Additional Sessions Judge, Karachi, which was also rejected on the ground of want of jurisdiction as according to learned Judge no Court or Tribunal had taken cognizance of the offence under rule 209 of the Defence of Pakistan Rules and in its absence he had no jurisdiction to entertain any bail application. On merits. however, the learned Sessions Judge observed that

"ex facie and ostensibly (the F. I. R.) does not connect the accused with the commission of the offence alleged." Following this rejection the applicant has moved this Court for grant of bail under section 498, Cr. P. C. and rule 210 of the Defence of Pakistan Rules.

4. Mr. N. K. Jatoi in support of the application firstly urged that the said handbill does not, on the face of it, contravene rule 42 (6) (b) of the Defence of Pakistan Rules or section 123-A, P. P. C. The learned counsel took me through the entire band bill. I have read and re-read the handbill. I am unable to agree with the learned counsel that prima facie this handbill is not calculated to excite disaffection towards the Government establi shed by law in Pakistan. I am also unable to agree with him that this handbill is merely an attack on the party in power as distinct from the Government inasmuch as there are in the handbill references, and if I may say so unhappy references, to the armed forces of Pakistan, which armed forces could act only under the orders of the Government and not as Political Party. The hand bill is quite clearly malicious in intent and vituperative in language.

5. The question, however, that arises in this case is whether the applicant distributed this handbill for the allegation against him is not that he is either its author, publisher or printer.

6. The learned Additional Advocate-General invited my attention to rule 210 of the Defence of Pakistan Rules and contended that bail could be granted under this Rule only if this Court comes to the conclusion that the accused is innocent of the charge levelled against him and in the event of their being any doubt as regards his innocence he would not be entitled to bail. He went on to argue that three statements recorded under sec tion 164 Cr. P'. C. by the Investigating Officer clearly connect the accused with this handbill inasmuch as according to these witnesses they were caused to be circulated by the applicant. As regards the interpretation of rule 210, I have no hesitation in admitting that I have not found it free from difficulty. I am, however, unable to agree that before a bail could be granted under rule 210 it must be established that the accused is innocent for in that event there would be no purpose in continuing the trial. Again I am unable to agree that if there is some doubt as regards the innocence of the accused he would not be entitled to bail under rule

210. In all humility I am of the view that the Court will take the entire facts and circumstances of the case and if on its examination, the Court comes to the conclusion that there are reasonable grounds for believing that the applicant is not guilty of the contravention alleged, the applicant would be entitled to a bail. The words in the section are "reasonable grounds for believing" that the accused is not guilty of such contravention and whether or not in a given case there are reasonable grounds is to be ascertained by examining in its totality the entire facts and the circumstances of the case, and not by confining the attention to anyone aspect of which in itself may cast doubt on his inno cence. If on such examination, the Court reasonably comes to the conclusion that the accused is not likely to have committed the contravention alleged, he should not be denied bail, for otherwise the provisions for grant of bail in rule 210 would become nugatory. . If I am correct in my view, as regards the interpretation of rule 210 then it becomes necessary for me to consider the facts and the circumstances of this case to arrive at the conclusion whether or not there are reasonable grounds to believe that the applicant is not guilty of the contravention alleged against him.

7. I may add here that Mr. N. K. Jatoi invited my attention to a large number of cases pending in the Supreme Court of Pakistan in which the Supreme Court has been pleased to grant interim bail to persons accused of contravention of the Defence of Pakistan Rules. He read out to me the F. I. Rs. in several of these cases in support of his contention that notwithstanding the seriousness of the allegations made, the Supreme Court was persuaded to grant interim bail without coming to any express conclusion, that the petitioner was innocent.

8. Coming to the facts and the circumstances of the present case, I may be permitted to enumerate the grounds, whir lead me to believe that the applicant is, for the purposes of the bail application only, not guilty of the contravention alleged against him. These are: (i) The applicant was a guest speaker at a students meeting and its organizers did not require either the blessings or the permission of the applicant to distribute the said handbill. (ii) The F. I. R. in this case was delayed and not lodged until 30th May 1973. (iii) The F. I. R. does not connect the applicant with the handbill. (iv) The F.I. R. is conspicuous by the absence of the name of the accused in spite of the fact that the police constable in the same Thana is said to have been present at the meeting and witnessed the applicant distributing or causing to be distributed the said handbill. (v) That the statements recorded under section 161, Cr. P'. C. were adverted for the first time in these proceedings. Even before the Sessions Judge no reference was made to them and, the bail was therefore rejected on legal ground though on merits the observations made were in favour of the applicant. (vi) At the same meeting admittedly the applicant delivered a speech, which speech as I have commented upon in another matter, was totally innocuous. It is difficult to assume that a person possessed of the mind as revealed in the speech, could be a party to a handbill which is to my mind not only in contravention of law, but is malicious, intemperate and viciously vituperative.

9. In the circumstances, therefore, I will enlarge the accused on bail in this case on his furnishing surety in the sum of Rs. 5,000.00 (Rupees five thousand) with P. R. Bond in the like amount to the satisfaction of the Nazir of this Court. Bail allowed.