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Criminal Miscellaneous No. 3531‑B of 1973, decided on 4th September 1973.

‑‑ Rr. 49 & 42(6), cls. (a) (b) & (e) read with r. 210‑Bail --Prejudicial act‑Recovery of weapons coupled with secret information received by police as to intention of accused‑Not sufficient to raise presumption against accused‑Quantity and quality of material collected against accused not sufficient to shake initial presumption of innocence‑Bar contained in r. 210‑Not operative-- Mere conjectures as to intentions of accused, held, not enough to disentitle accused to privilege of bail‑Bail granted in circum stances.

Even if the alleged recovery of the revolver and the helmets etc. be assumed to be genuine, it is difficult to infer from the said recovery alone that the accused had intended or were likely to bring into hatred or contempt, or to excite disaffection towards the Government; or to prejudice the performance of the public servants; or even to prejudice the maintenance of peaceful conditions in any area in Pakistan. It was contended that the recovery coupled with the Secret information received by the police is sufficient to raise a presumption against the accused. But, in the first place, the informer has not been named in the first information report. And, in the second, a mere allegation by some one that certain persons are out to create disaffection or to commit breach of peace without giving any details as to how he came to know of the intentions of the accused persons is not sufficient to raise any presump tion prejudicial to the accused. Further, under rule 210 a mere conjecture as to the intentions of the accused is not enough to disentitle them to the privilege of bail. Unless the quantity and quality of the material collected against the accused is sufficient to shake the initial presumption of innocence, the bar contained in rule 210 does not become operative. However, in cases where the material before the Court is enough to indicate the 'intention' or 'likelihood' envisaged in sub‑rule (6) of rule 42, the Courts will not grant bail unless satisfied that there are other reasonable grounds for believing that the accused is not guilty under the Defence of Pakistan Rules.

Ch. Muhammad Anwar Binder, Q. M. Salim, Sardar Khizar Hayat Khan and Qamar‑ud‑Din Meo for Petitioners.

Abdus Sattar Najam, Asstt. A.‑G. assisted by Sh. Muhammad Usman for the State.

A case was registered against the petitioners on 30^thAugust, 1973, under Rule 49 of the Defence of Pakistan Rules, on the basis of an information received by the police to the effect that certain members of the United Democratic Front had collected bricks, lathis steel helmets and fire arms etc. at 33 Davis Road, Lahore, in order to commit breach of peace, create hatred against the lawfully established Government of the day and to create panic among the general public. The police accordingly raided the premises mentioned in the information and is said to have recovered one revolver, 15 steel helmets, 5 lathis and a number of broken bricks therefrom. At the time of the raid all the four petitioners were allegedly present in the court yard of the Kothi.

2. This bail application has been moved under the provisions of sections 497, 498, 561‑A, Cr. P. C. and rule 210 of the Defence of Pakistan Rules. However, since rule 210 of the Defence of Pakistan Rules precludes the application of the provisions of bail contained in the Criminal Procedure Code to persons accused or convicted of a contravention of the said rules or orders made thereunder in the matter of bail, the question of bail to tile petitioners can be considered only within the four corners of rule 210 alone. According to this rule, no person accused or convicted of such contravention can be released on bail, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. These rules do not however appear to have dislodged the initial presumption of innocence which exists in favour of every person.

It is, therefore, necessary to examine the material collected by the investigating agency to see whether there are reasonable grounds to believe that the petitioners are guilty of contravening any of the rules or orders made thereunder.

3. The learned Assistant Advocate‑General who has appeared for the State in this case has argued that the petitioners have contravened clause (a) of sub‑rule (1) of rule 49 inasmuch as they have committed a prejudicial act as defined in rule 42. The definition of "prejudicial act" is given in sub‑rule (6) of rule 42 it consists of several clauses. But the learned Assistant Advocate‑General has, in the context of this case, relied only on parts of clauses (a) and (b) and also on clause (e). Therefore, for the purposes of this case "prejudicial act" means any act which is intended or is likely‑--

(a) to prejudice the maintenance of peaceful conditions in any area included in Pakistan;

(b) to prejudice the performance of their duties by public servants; and

(c) to bring into hatred or contempt or to excite disaffection towards the Government established by law in Pakistan.

4. Now, even if the alleged recovery of the revolver and the helmets etc. be assumed to be genuine, it is difficult to infer from the said recovery alone that the petitioners had intended or were likely to bring into hatred or contempt, or to excite disaffection towards the Government; or to prejudice the performance of the public servants; or even to prejudice the maintenance of peaceful conditions in any area in Pakistan.

The learned Assistant Advocate‑General, however, argues that the recovery coupled with the secret information received by the police is sufficient to raise a presumption against the petitioners. But, in the first place, the informer has not been named in the first information report.

And, in the second, a mere allegation by some one that certain persons are out to create disaffection or to commit breach of peace without giving any details as to how he came to know of the intentions of the accused persons is not sufficient to raise any presumption prejudicial to the accused. Further, under rule 210 a mere conjecture as to the intentions of the accused is not enough to disentitle them to the privilege of bail. Unless the quantity and quality of the material collected against the accused is sufficient to shake the initial presumption of innocence, the bar contained in rule 210 does not, in my opinion, become operative. However, in cases where the material before the Court is enough to indicate the "intention" or "likelihood" envisaged in sub‑rule (6) of rule 42, the Courts will not grant bail unless satisfied that there are other reasonable grounds for believing that the accused is not guilty under the Defence of Pakistan Rules.

5. In the present case, the photographs produced by the Investigating agency showing the helmets, the pieces of bricks etc. alleged to have been recovered from the premises of 33 Davis Road are such that it is not even possible by looking at them, to recognize the premises. Therefore, in my opinion, unless satisfactory evidence with regard to the intention of the/ petitioners to violate the Defence of Pakistan Rules or in respect of the likelihood of such violation is produced, the petitioners may be granted bail even under the provisions of rule 210 of the Defence of Pakistan Rules.

I, therefore, admit the petitioners to bail each in the sum of Rs. 10,000 with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court.

Ball granted.

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