BEGUM SILVAT SHER ALI Versus THE STATE

The applicant in this case is the wife of Major-General (Retd.) Nawabzada Sher Ali Khan who being an accused person in criminal prosecution under section 124-A of the Pakistan Penal Code and rule 49 read with rule 42 of the Defence of Pakistan Rules, 1971 is an undertrial prisoner.

2. In order to appreciate some of the contentions raised in this case it is necessary to state briefly the history of the case.

3. On or about the 13th of August, 1971 the accused made a statement to the press which was published among others in the Morning News of August 13, 1972 and it is this statement which forms the basis of his prosecution. On the 17th of the same month the accused was arrested at Lahore and brought to Karachi. On the 21st of August, 1972 counsel who had been engaged for the accused not knowing in which Court the case was pending but aware that an F. I. R. had been lodged under the provisions of law aforementioned in the Drigh Road Police Station and that it had not been forwarded to the Magistrate having jurisdiction territorially over the limits of that police station applied to the District Magistrate, Karachi for bail. This application, the District Magistrate, transferred to the Additional City Magistrate No. X1II, Karachi who admittedly was the Magistrate having jurisdiction. On the 23rd, however, the learned Public Prosecutor, Karachi made a statement in writing before that Court to the effect that the Government is engaging a Special Public Prosecutor and that a fortnight's time might, therefore, be allowed to Government for that purpose. It seems that request was resisted by the Defence on the ground that the prosecution was delaying a decision on the bail application ; however, having had regard to rule 210 of the Defence of Pakistan Rules to which I shall presently refer again the learned Magistrate allowed 10 days time. Against this order the Court of Session was moved and before the learned Additional Sessions Judge Mr. Ghulam Nabi Memon who had in the meantime been appointed as Special Public Prosecutor appeared and hated that the applicant was no longer a detenu under the Defence of Pakistan Rules and that he ought, therefore, to move the trial Court first. It seems to me that there was some confusion as no body had till then alleged that the accused was a detenu. Nevertheless Mr. G. M. Shah who then appeared for the accused stated, according to the learned Judge's order, that a regular Court having been constituted under the Defence of Pakistan Rules for trial, the bail application was not pressed. Again it is clear that there is some confusion because the accused person was all the time an accused of the offences which I have mentioned and the regular Court to which reference is made, apparently, was the Court of the Special Magistrate who had been appointed to try this particular case. Be that as it may, an application for bail was then made to the Special Magistrate who by an order dated 5th September, 1972 has dismissed the application.

4. I admitted this application for bail on 7-9-1972 and issued notice to the Advocate-General for the next day. On the next day the Advocate-General appeared and stated that he had, not been able to get the papers of the case, in the short time that had been given to him, and accordingly it was agreed that the case should be heard on 12th September 1972 ; in the mean time since Mr. Brohi appearing for the accused was protesting against the transfer of the accused to the Khairpur Prison maintained that his custody in that Prison was illegal, the Advocate. General agreed that tire accused be brought to Karachi Prison and be produced in Court on the 12th.

5. The Advocate-General takes a 'preliminary objection that since the Court of Session and this Court have concurrent jurisdiction the Court of Session should first have been moved and that I should not allow the order of the learned Magistrate to be impugned before this Court directly by passing the Court of Session. . Now' it has been held quite often (and I have recently held so in Cr. Bail Application Nos. 217 of 1972 and 310 of 1972) that although the jurisdiction of the superior Court where two Courts have concurrent jurisdiction is undoubted, ordinarily and in the absence of special circumstances the Superior Court should not entertain the application without the inferior Court being first moved, but that once a matter has been admitted then it cannot be dismissed upon that ground only but must disposed of on merits. In this case, as I have pointed out, this application has been admitted. Moreover I think that in the light of the history that I have stated earlier I ought to hear and decide on the plea of the accused for bail pending his trial: without further delay. In these circumstances I do not feel inclined to throw out this application upon the preliminary objection but propose to deal with it on merits.

6. Now, admittedly, the offence which the prosecution alleges; against the applicant is based upon one single act, namely, that he issued a press statement to which I have earlier referred and which may with advantage now be reproduced:---

"Politicians should leave army alone-Sher Ali.

Maj.-Gen. (Rtd.) Nawabzada Sher Ali Khan, former Minister of Information, in a statement yesterday, appealed that the Armed Forces, and particularly the Army, should not be dragged into politics.

He said: "I wish to God people would stop dragging the Armed Forces, and particularly the Army, in politics. Enough blame has been piled upon the good name of the Army by the politicians. Every day we bear sermons that the Army should keep out of politics. Then why do others drag army in it? What was the need of dramatising the seasons of retrench ment of six senior officers of the Army when it has been the tradition that proceedings of the Court of enquiries and Court martials etc. in the Armed Forces are never published ?

Why are we every day insulting the intelligence of the public Court of enquiry is exactly what it is-an enquiry Court. When the fault or crime is established by it, then on serious charges Court martials are held. If the charges on these officers are as serious as given out, they should have been court-martialled, dismissed or even given sentences of imprison ment because inciting a civil war or mutiny is one of the most serious charges you can attribute to a soldier. If it was a conspiracy, in which others than purely soldiers were also involved (as reported in the press), then it should have been dealt with like the first conspiracy case of 1951. Bonapartism, conspiracies must not be dealt wins in the manner that they have been dealt with. You cannot honourably retire officers and appoint them ambassadors under these charge.

General Niazi's letter was given front page publicity. And yet it is the same man who has been charged with a humiliating surrender in Dacca and this surrender was published as a result of the `decisive defeat.' Would this letter have been released and orders issued for front page publicity if its contents had been of different nature ? We soldiers have a right to demand that an end must be put to dragging the good name of the Army in politics in a manner in which it only brings it a bad name and disrepute. We have had enough of it. Please stop it. People laugh at the inconsistency being demonstrated every day. One day, it is a brave and honourable soldier and the other day he is hatching conspiracies."

It is this statement and this statement alone which is said to constitute the offences under section 124-A of the Pakistan Penal Code and under rule 49 read with rule 42 of the Defence of Pakistan Rules. The argument was, therefore, advanced by Mr. Brohi that this is not one of those cases where evidence has yet to be recorded and one cannot say whether or not the offence will eventually be made out. On the contrary he said this is the only evidence available against the accused person, evidence which there is no question of believing or disbelieving but a documentary piece of evidence setting out the statement which the accused is said to have made and this Court could, therefore, easily come to the conclusion whether or not this constitutes the offences alleged. According to him it clearly did not constitute any such offences.

7. Anticipating the stand which might be taken by the Advocate-General Mr. Brohi himself referred to rule 210 of the Defence of Pakistan Rules which reads thus

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."

8. Now so far as clause (a) is concerned it is of course satisfied in the present case because the prosecution have had an oppor tunity to opposing the applicant for release on bail, and there is no complaint before me that I have given inadequate time to the prosecution for the purpose. The real importance of rule 210 lies in clause (b) as contrasted with a somewhat similar provision under section 497 of the Criminal Procedure Code. Mr. Brohi argues that, although the relevant part of section 497 and of clause (b) are in marked contrast as to the matter of which the Court need to be satisfied, upon a proper appreciation and analysis of the two provisions the effect is substantially the same. While section 497 after conferring on a Court, the power of granting bail to persons accused of non-bailable offences, provides that such persons "shall not be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or transportation for life". Rule 210 on the other hand forbids the Court to grant bail unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. The words "such contra vention" refer to a contravention of such rules or orders made thereunder as are notified by the Central Government. Admittedly the Central Government has issued a notification in respect of the provision in question in this case. I am not quite convinced that as a matter of pure theorical construction the two provisions mean the same thing ; I would, however, agree that in a case like the present which depends not upon anticipating the quality and quantity of evidence that has yet to come but upon the true meaning and effect of a statement reduced to writing the practical difference between the two might well be minimal or negligible. However, one strong difference still would remain. Under section 497 bail is granted as a rule in non-bailable offences but is refused if there are reasonable grounds as aforesaid. Under rule 210 bail cannot be granted unless the Court is satisfied that there are reasonable grounds for believing in the innocence of the accused. The difference is not merely one of emphasis ; it lies in this that in cases of some doubt under rule 210 at least the decision would have to go against the accused person.

9. Now cases of this kind which on the one hand insist upon, the Court's satisfaction in this degree before bail can be granted and on the other hand depend upon a single piece of evidence which is precisely available to the High Court at this early stage present an unusual difficulty. Ordinarily, although the merits of the case are involved at least to a prima facie extent in that the Court has to make up its mind whether there are such reasonable grounds as are contemplated by section 497 the Court would use guarded language and refrain from too strong an expression of opinion in order that the trial of the accused be not prejudiced. In any event dealing as it normally would do with evidence which has yet to come on the record, its finding would of necessity be of a tentative character and, therefore, unlikely to cause such prejudice even if Court has not used careful language. In cases of the present kind, however, the jurisdiction of the Court to grant bail is not taken away and, therefore, the Court is under legal compulsion to deal with the case but since it can grant bail only upon such satisfaction as is provided for by rule 210 it almost follows that in giving bail it virtually would be rendering a judgment of acquittal in advance. This is obviously a course which this Court would avoid if it can without shirking its plain duty to decide the bail application.

10. Before I go on it might be convenient to deal with the learned Advocate-General's assertion that the statement in question is not at all the sole piece of evidence in this case and that the prosecution intends to rely upon a number of witnesses whom it has cited in the complaint. I think this argument is plainly ill-founded. The sole evidence which the prosecution will need in this case is proof that the accused made the statement and that is, in the circumstances of the present case, a formality. The accused does not deny that he has made the statement and in fact the learned counsel appearing for him, Mr. Brohi, expressly admitted that the statement was made by him. Nor is there any question here of whether a version taken down in short-hand is correct or not ; the statement is a written one, released to the press, and no part of it is denied by the accused. The learned Advocate-General said, however, that these witnesses would prove more, namely, the effect that the statement had upon persons who read it and for this purpose he relied upon the case of Stare v. Attaullah Khan Mengal (PLD1967SC78) and particularly a passage from the judgment of the Chief Justice which is as follows:

"CORNELIUS, C. J.- I have had the advantage of reading a draft of the judgment proposed to be delivered by my learned brother Hamoodur Rahman, J. and I am entirely in agreement with his view that in case falling under section 124-A, P. P. C., where the charge is based upon a statement concerning measures taken or alleged to be taken by the Government, it is irrelevant for the purpose of establishing the charge whether the allegations of facts made in such statement-are true or otherwise. I also agree that it is not relevant even for determination of sentence, whether the allegations of fact are true or untrue, in a case where the prosecution does not make it a part of its case that the statements were untrue. My learned brother has referred to the leading cases on the subject fn the Pakistan jurisdiction as well as from the English and other jurisdictions and has shown that with the exception of a single case from among the English cases, which may not have been correctly appre ciated, the view that has been consistently held is that evidence as to the truth of the measures which formed the basis of criticism offered in the offending statement cannot be admitted in cases where the libels are alleged to be, as in this case, seditious. The principle upon which this rule is based is simple and salutary. It is that it can never be in the public interest that enquiry into the truth of such statements should be allowed in cases where the essential and indeed the only question for the Court to decide is whether the effect of the language used is such that it is calculated to create in the minds of those who see or hear it a feeling of revulsion towards the Government by law established, so strong as to amount to hatred or contempt, or in a still worse case, where the hatred or contempt is so strong as to have the effect of seriously taking away from the Government the allegiance of the public or a section there of, in other word,, producing 'disaffection'. It is of course not necessary that such feelings should have actually been caused ; it is enough that the language used was calculated to produce this result or in the alternative that an attempt should have been to produce such a result."

11. I must admit that I am quite unable to see how this helps learned Advocate-General. He contends that he would be able to show by this means the effect that the statement had on various people and, therefore, make out that the accused "has brought or attempted to bring into hatred or contempt or excited or attempted to excite dissatisfaction, "within the meaning of section 114-A. Similar considerations would apply to the offences under Defence of Pakistan Rules where the material words are, referring to the act which is prohibited, "is intended or is likely to . . . . ". I shall reproduce the relevant provisions little later ; suffice it for the present to say that neither under section 124-A of the Pakistan Penal Code nor the rules is the effect of the words or act material but only what they are calculated to do. Indeed the very passage, which the learned Advocate-General has quoted, seems to me to be against him and I refer particularly to the last sentence of that passage. If a statement falls within the mischief of section 124-A or of the relevant rules of the Defence of Pakistan Rules it would be no defence to say that a particular person was not affected thereby and, if it does not, it would be of no help to the prosecution to prove that some persons were indeed so affected. In my view, therefore, any evidence on this point would be irrelevant but I do not mean to give such a finding as would preclude determination of the question of admissibility in the trial Court. Assuming for the time being, however, that the witnesses intended to be examined will support the prosecution and will be found credible, all that they will prove is that the words used by the accused had a certain affect upon some people, a matter which does not enter into the ingredient of the offence at all. Rule 49 of the Defence of Pakistan Rules prohibits certain acts among them being all `prejudicial acts' and then proceeds to provide for a punishment of the contravention of the rule. The word 'prejudicial act' is defined in rule 42 (6) which defines it as an act which intended or likely to do one of a number of things which are enumerated in various clauses of the sub-rule.

12. We are concerned in the present case with clauses (b), (c) and (f) which are as follows.

"42 (6) (b).-To cause disaffection among, or to prejudice, prevent or interfere with the discipline, health or training of, or the performance of their duties by, members of the Armed Forces or public servants ;

(c) to bring into hatred or contempt, or to excite disaffection towards the Government established by law ;

(f) to bring into hatred or contempt, or to excite disaffection towards the Armed Forces or any section thereof."

Mr. Brobi has argued that there is nothing in the statement which comes under section 124-A of the Penal Code or in the definition of 'prejudicial act' which I have reproduced so far as it is material. He argued that this is a mere comment upon what is being done .and although some of the references are clearly to Government, Government is not as such named. I have not been able to accept this contention. There is language used in this statement which is capable of meaning that officers of the Army have been unfairly dealt with, that letters of certain top-ranking military officers have been utilized by the Government for a malicious political end. Moreover the word 'we' in the last paragraph could be construed as referring to the body of men of which the accused himself, has been a very senior officer ; indeed a little earlier the expression is `we soldiers'. It can very well be that this word tended to excite dissatisfaction among members of the Armed Forces, or to bring into hatred or contempt or to excite dissatisfaction towards the Government or to excite similar feeling against the Armed Forces : all matters which come within the three clauses of rule 42 (6) I do not wish for obvious reasons to hold that they in fact and on a proper construction do coin within these clauses. It is enough to say that they can be so construed and if I am right there then clearly I cannot be satisfied within the meaning of rule 210 that there are no reasonable grounds to believe in the guilt of the accused. I have deliberately refrained from too close an examination of the language of the statement for reasons which I have earlier explained; I am anxious to avoid prejudicing the trial either way if I can possibly do so without avoiding the decision of this bail application al together.

13. Mr. Brohi then relied upon a photostat copy that he had reproduced of a cutting from the evening paper Daily News of 16th August 1972 which in turn had printed a fascimile of the stamp of the Ministry of Information. The inference sought was that the Ministry of Information had itself "cleared" the statement. The relevance of this argument is to be found in the fact that in a prosecution like the present it would be a defence for the accused to show that the contravention complained of was with the permission or under the authority of the Government. It is difficult for me on the basis of this photostate which bears this fascimile to hold, first, that the stamp is genuine and, secondly, that it necessarily means that it had the permission of the Government of Pakistan. As to the first, my difficulty is probably only on the basis of absence of legal proof ; it may well be that after formal evidence has been led the accused will have no difficulty in establishing that the stamp is genuine. As to the second, however, it is quite impossible without knowing R-the evidence on the basis of which this authority or permission will be said to be proved or the evidence upon which the prosecution will seek to dispute such permission to hold that I am satisfied that the accused will succeed in this defence. Upon this the trial Court will have to make up its mind on the basis of the evidence produced for and against it. Mr. Brohi then went on to argue that there is no fear in this case of the accuse absconding or tempering with the evidence. It is true of court that the evidence is not of such a kind that it can be tempered with but the absence of such fear is not really a ground for the grant of bail. These are considerations which whether bail would otherwise be granted would pursuade the Court to refuse bail.

14. Finally Mr. Brohi argued that the accused is a person who has enjoyed high status in life having retired as a Major- General in the Army and thereafter held diplomatic appointments and finally having been a Cabinet Minister during the previous regime. He also argued that his client is of somewhat advanced years being over 60 and is not in good health. Clearly the reference is to the provisions of section 497 which allow bail even in the most serious cases to sick or infirm persons. If this was a case to which section 497 alone was attracted there would be force in Mr. Brohi s argument. But the provision of law under section 210 are absolute. Where such satisfaction as is envisaged by that Rule cannot be achieved then such grounds are entirely immaterial.

15. I have accordingly come to the conclusion that must refuse bail in this case and, the application is accordingly dismissed.

16. Mr. Brohi has argued that the confinement of the accused in any prison other than the Karachi Central Prison is Illegal and is in fact calculated to deprive him of the status of 'A' Class prisoner which he has been granted. The Advocate -General, however, gave a firm assurance that throughout his trial, if bail is refused, the accused will be lodged in the Karachi Central Prison and will be given all the facilities and privileges which are accorded to 'A' Class prisoners and Mr. Brohi has, therefore, not pressed me to decide this question of law or to make any orders as to the place where the accused is to be confined. I, therefore refrain from doing so but upon the clear understanding that the assurance given by the Advocate-General' will be honoured.

17. Mr. Brohi pointed out to me that the Special Magistrate had, when he adjourned this case, now fixed the 28th of September 1972 for the purpose of the trial although it was on the 5th September that the accused was last produced before him. This was clearly in contravention of section 344 of the Criminal Procedure Code which does not contemplate the remanding of an accused person into custody for a term exceeding 15 days at a time. The learned Magistrate will, therefore, see to it that the accused is brought up before him in good time and fix an earlier date if that is now possible for the hearing of the case. Quite apart from section 344 also cases ought to be heard with reasonable expedition and it does not seem to me that the present case is one in which a great deal of evidence is required and there should, therefore, be no difficulty in a reasonable good trial. But this is not to be interpreted as meaning that I have directed any evidence to be shut out. I do certainly direct, however, that the Magistrate will proceed with all reasonable despatch in this case and in any event not ignore the requirement of section 344, Criminal Procedure Code.

Bail refused.