JAN MUHAMMAD Versus STATE

ORDER

1. Jan Muhammad, Abdul Zahir. Abdul Wahid and Jahanan ate accused of an offence under rule 31 of the Defence of Pakistan Rules, 1971, vide F. I. R. No. 16/73 dated 14-1-1973. They have applied for bail under rule 210 of the Defence of Pakistan Rules read with section 498, Cr. P. C.

2. The allegations against them briefly are that a Track No. QA 4622 was checked at Border Military Police Post, Rakht Munh, on D. G. Khan Bawatta Road on the night between 6/7-1-1973 carrying Bengalis in an attempt to cross over unlawfully into Afghanistan via Chamman. Four Border Military Police Officials tried to stop the truck at which the owner of the truck assaulted them with a dagger. But the officials of the Border Military Police overpowered him. The truck along with the Bengalis, numbering 51, the owner of the truck-driver and the cleaner were captured and brought to Border Military Police Lines. A case was registered under section 307/ 353/34, P. P. C. inter alia against-

(1) Jan Muhammad son of Saeed Muhammad caste Achakzai Pathan owner of the vehicle.

(2) Abdul Zahir son of Muhammad Khan caste Niazi Pathan driver of the truck.

(3) Abdul Wahid son of Bakhtiar caste Zari, cleaner of the truck.

(4) Jahanan son of Sher Muhammad, caste Achakzai Pathan (petitioners).

2. Subsequently, after obtaining legal opinion, the F. I. R. was changed into one under rule 31 of the Defence of Pakistan Rules, 1971. The above-named four accused applied for bail to the District Magistrate, D. G. Khan, who refused the same vide his order dated 27-1-1973. Hence the present application.

3. The learned counsel for the petitioners submitted that the petitioners have been accused of an offence under rule 31(5) of the Defence of Pakistan Rules which, provides that the master of any vessel or the pilot of any aircraft by means of which any person leaves Pakistan in contravention of any order made under role 31 shall be deemed to have abetted the contravention. He argued that the petitioners were carrying Bengalis in a truck which is neither a vessel (i.e. boat or ship), nor an aircraft, but is a vehicle sod as such 'the act alleged against them is not covered by sub-rule (5) of rule 31. He referred to me an order by the learned Chief Justice dated 7-2-1973 (passed in Criminal Miscellaneous No. 383/13 of 1973) whereby his Lordship had been pleased to grant bail to persons, who were accused of an

3. Identical offence. I have gone through that order and find that -it is not applicable to the present case because it is based on a concession made by the Advocate-General Punjab, on instructions from the Government. This in not the position in the present case, where the State is vehemently opposing the grant of bail.

4. Rule 31 (1) of the Defence cf Pakistan Rules reads as follows:-

5. "31. Leaving Pakistan.-(I) The Central Government may by order, make provision for securing that, subject to such exemptions as may be provided for in the order any person for the time being in Pakistan or any class of such persons, shall not-

(a) proceed from Pakistan to a destination outside Pakistan ,except under the authority of a written permit granted in such form and manner and by such authority or person as may be specified in the order;

(b) for the purpose of proceeding to a destination outside Pakistan, leave Pakistan elsewhere than at such place as may be specified in the order.

(2) . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . .

6. A question, therefore, arose if the Central Government had passed any order under sub-rule (1) requiring that no one Bengali on or otherwise shall leave Pakistan without previous permission of the Government. Mr. Ijaz All, the learned Officer on Special Duty of the Advocate-General's Department produced before me a copy of the Government's Order No. 1/5/71-Pass (Int)-11, dated 1-11-1972, which reads as follows:-

7. "In exercise of the powers conferred by the sub-rule (1) of rule 31 of the Defence of Pakistan Rules, the Federal Government is pleased to order that no East Pakistani, whether by birth or by domicile, who is not in possession of a No-objection Certificate from the Establishment Division, Government of Pakistan shall proceed from Pakistan to any destination outside Pakistan except under the authority of, and in the manner specified in, a written permit granted by the Interior Division, Government of Pakistan or the Home Department of a Provincial Government, and recorded on the passport of each such person in the form set out in the table below:

TABLE

8. No.__________________________ Date____________________________

9. Mr./Mrs./Miss.__________________________________________________ s/o, w/o, d/o____________________________________________________ holder of this passport is permitted to leave Pakistan with_____________children.

10. Signed."

11. He also referred me to rule 198 of the Defence of Pakistan Rules, which reads as follows:-

12. "198. Attempts, etc., to contravene the rules.‑--Any person who attempts to contravene, or abets, or attempts to abet, or does any act preparatory to a contravention of any of the provisions of these rules or of any order made thereunder, shall be deemed to have contravened that provision, or as the case may be, that order."

13. It is clear from a reading of the two rules i.e. rule 31(1) and rule 198, together with the order reproduced above, that the peti tioners are guilty of an offence of contravening, abetting or attempting to abet the contravention of the aforementioned order passed under rule 31(1) of the D.‑fence of Pakistan Rules.

14. The next question is as to whether or not the petitioners are entitled to the grant of bail. The rule governing the grant of ball under the Defence of Pakistan Rules is rule 210, which read' as follows:-

210. Special provision regarding bail.‑--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 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 or 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."

15. It will be noticed that clause (b) of this rule is applicable only to cases where the contravention is of any such provision of the rules, or orders made thereunder, which the Central Government has specified by a notified order, in that behalf. In case of such contraventions the grant of ball is not governed by section 497/498 of the Code of Criminal Procedure but by the provision of rule 210 of the Defence of Pakistan Rules, and the Court can grant bail only if it is satisfied that grounds exist for believing that the accused/petitioners are not guilty of any such contravention.

16. The learned O. S. D. brought to my notice a Notification (No. S. R. O. 669(1)/1972 dated 1.9‑1972, printed at page 805 of P L D 1972 Central Statutes) which roads as follows t‑

17. Order under Rule 210 (b), D. P. R.‑---In exercise of the powers conferred by clause (b) of rule 210 of the Defence of Pakistan Rules, the Federal Government is pleased to specify the following provisions of the said Rules for the contravention whereof the provision of the aforesaid clause shall apply:-

18. The provisions contained in clause 6 of rule 42 and rule 49. "

5. Rule 42(6) defines 'Prejudicial Acts'. I am of the view that the action of the petitioners is a 'prejudicial act' within the meaning of rule 42(6)(t) of the Defence of Pakistan Rules inasmuch as it is an act which is intended, or is likely to pre-judice, inter alia, the security, the safety and interest of Pakistan. Clause (b) of rule 210 is, therefore, attracted to the facts of the case. As such ball cannot be granted unless the petitioners can satisfy the Court that there are reasonable grounds for believing that they are not guilty of the offence alleged against them. But, as already discussed above, 'there is ample material on the record to show that they are guilty of an offence under rule 31(1) read with rules 198 and 42(6) (t) of the Defence of Pakistan Rules, 1971. Consequently their application for bail is rejected.

19. S. A. H. Application rejected.