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Case NO.S.H.1 of 1987, Bail Applications Nos.3 and 4 of 1987, decided on 6th May, 1987.

---Ss.2 & 5(6)--Prevention of Anti-National Activities Act (VII of 1974), S.13--Penal Code (XLV of 1860), S.124-A--Criminal Procedure Code (V of 1898), S.497(1)--Bail--Powers of Special Court to grant bail under S.5(6) of Act 1975 in case of a person in respect of whom there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years--Act of 1975 being a special law, its provisions, held, would take precedence over those of S.497, Criminal Procedure Code.

---S.5(6)--Bail--Expression 'reasonable grounds for believing' as appearing in S.5(6) of Act would mean an honest belief in guilt of accused which was found not on suspicion but on reasonable grounds- Test, therefore, would be supplied by material on which prosecution supported its case--Question whether there were reasonable grounds to believe that an accused was guilty of a scheduled offence, would depend at initial stages on allegations made by prosecution in first information report, statements of witnesses recorded by police under S.161, Cr.P.C. and all other material which might be found by Court to be incriminating--On basis of such material if Court finds a prima facie case made out against accused then unless there was some unimpeachable material in the hands of defence to discredit evidence of prosecution witnesses, no discretion would vest in Court to grant bail to accused.

Raghbir Singh v. I.-T. Commissioner 1958 Punj. 250; S.Narayanappa v. I.-T. Commissioner, Bangalore A I R 1967 S C 523; Ghulam Rasool v. Superintendent of Police P L D 1969 Lah. 781; Mansoor and 4 others v. The State P L D 1972 S C 81 and Khalid Saigal v. The State P L D 1962 S C 495 rel.

---S.5(6)--Prevention of Anti-National Activities Act (VII of 1974), S.13--Penal Code (XLV of 1860) S.124-A--Bail, grant of Scheduled offences--First information report lodged prima facie disclosing commission of scheduled offences by accused--Accused allegedly made objectionable speeches to bring into hatred and contempt Government established by law and further sought to create hatred or ill will amongst different classes of people of Pakistan and disrupt integrity of Pakistan--Allegations finding support from statements of witnesses recorded under S.161, Cr.P. C.--Held, could not be said that there were no reasonable grounds to believe that accused had committed offences alleged against them--Bail refused.

Gul Muhammad etc. v. The State 1987 P Cr.L J 737 ref.

---S.154--Registration of case--Delay--Delay, held, could be fatal for prosecution case if there were possibility of false implication of some accused in case or making of improvements by prosecution.

--S.497--Bail--Arguments relating to merits of case, held, could not be touched at bail stage.

Gulzar Hassan Shah v. Ghulam Murtaza and 4 others P L D 1970 S C 335; Muhammad Aslam and others v. The State P L D 1967 S C 539 and Farid v. Ghulam Hassan and others 1968 S C M R 924 rel.

Sarfraz Ahmed, A.A.-G. for the State.

Shaikh Mir Muhammad for Respondents.

Dates of hearing: 5th, 6th, 7th, 8th, 13th, 16th, 20th and 26th April, 1987.

These Bail Applications have been filed by applicants Mumtaz Ali Bhutto and Aftab Ahmed Jamote who are accused of committing offences punishable under section 13 of the Prevention of Anti-National Activities Act, 1974 and section 124-A, P.P.C. both of which aye exclusively triable by this court.

2. An F.I.R. was registered against the accused by S.I.P-. Ghulam Muhammad Memon of P.S. Matiari on 9-2-1987 on the basis of a report sent by D.I.B. Hyderabad. According to the allegations contained in the report, on 2-10-1986 at about 1215 hours, the two applicants alongwith other co-accused had gone in a procession to a farm of one Khalid Pandhiani and delivered objectionable speeches to a crowd consisting of about 600-700 persons. The applicants and the co-accused vehemently criticised the ideology of Pakistan propagated confederal system in the country and instigated people to secede from the Federation and thereby they attempted to bring into hatred and contempt and excite disaffection towards the Government established by law. According to the allegations, the accused further incited people of smaller provinces to rise against the people of Punjab and thereby they sought to create hatred and ill-will amongst different classes of people in the country in order to disrupt the unity and integrity of Pakistan and thereby the accused committed offences as already pointed out.

3. On the basis of the above allegations, two separate proceedings have been initiated by the prosecution against the accused; one on a police report for commission of offences under section 13 of the Anti-National Activities Act, 1974, and the other on a private complaint for commission of offences under section 124-A, P.P.C.

4. Mr.Shaikh Mir Muhammad, learned counsel for the accused, has raised the following contentions before me. Firstly, that there has been an inordinate delay in lodging of the F.I.R. which the prosecution has failed to explain. His next contention is that no specific allegations have been made in the F.I.R. against each of the accused individually and the F.I.R. fails to disclose commission of offence either under section 13 of the Prevention of Anti-National Activities Act or Section 124-A P.P.C. Thirdly, according to the counsel, there was no incriminating material available at P. S. Matiari against the accused persons as the case was registered purely on the directions of S.P., Hyderabad and even the name of author of the report sent by D.I.B. on the basis of which F.I.R. was lodged has not been disclosed in the F. I. R. Lastly, his plea was that applicant Mumtaz Ali Bhutto is a heart patient and as such he is entitled to concession of bail by virtue of proviso to section 497(1) Cr.P.C.

5. Mr.Sarfraz Ahmed, the learned A.A.G. on the other hand, has vehemently opposed granting of bail to the applicants. According to him, delay in lodging of the F. I. R. would only be fatal if there is possibility of false implication of the accused in the case since no period of limitation has been prescribed under the law for taking action in respect of an offence. As regards the other contentions raised by Mr.Shaikh Mir Muhammad, the argument of the learned A.A.G. is, that the same touch the merits of the case which cannot be considered at this stage. The learned A.A.G. has also invited my attention to section 5(6) of the Suppression of the Terrorists Activities (Special Courts) Act, 1975 (hereinafter referred to as "the Act") which provides that "an accused person shall not be released on bail by a Special Court, or by any other Court if there appear reasonable ground for believing that he has been guilty of scheduled offence .." The subsection, according to the learned A.A.G., imposes restrictions on the powers of this court in matters of bail.

6. Before dealing with the points raised by Mr.Shaikh Mir Muhammad in support of the bail applications I would first life to deal with this last contention raised by the learned A.A.G. as section 5(6) of the Act requires examination first. As suggested by the language of section 5(6) itself, the section appears to be restricting the powers of this court to grant bail to the accused if there appear reasonable grounds to believe that he has been guilty of a scheduled offence. "Schedule offence" has been defined by section 2 of the Act to mean as an offence specified in the schedule. Admittedly, the offences with which the accused have been charged are specified in the schedule to the Act.

7. Mr.Shaikh Mir Muhammad has, however, argued that the principles governing the grant of bail to the accused in the present case would still be the same as contained in section 497 Cr.P.C. according to which, barring cases where there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, the powers 'of the court to grant bail in a non-bailable offence are not restricted. Reliance in this respect has been placed by him or a Division Bench decision of this court in the case of Gul Muhammad, etc. v. The State 1987 P Cr.L J 737 wherein two learned Judges of this court have come to a conclusion that even in cases tried by a Special Court constituted under section 3 of the Act for alleged commission of a schedule offence, the High Court can invoke the provisions of the third proviso to section 497(1), Cr.P.C. for granting bail to the accused. However, in my opinion this case is not attracted to the facts of the present case as in the reported case the question before the High Court was, whether the restrictions contained in section 5(6) of the Act also extended to the High Court and the question was answered in the negative. This case is clearly distinguishable as the question in the present case is, whether the powers otherwise available to the trial court under section 497, Cr.P.C. are subjected to restrictions imposed by the provisions of section 5(6) of the Act. Such question clearly was not before the High Court in the reported case and consequently reliance cannot be placed by this court on that case. As far as section 5(6) of the Act is concerned, the same, in my opinion, places similar restrictions on the powers of the Special Court to grant bail to accused persons as are contained in Section 497(1) Cr.P.C. in case of a person in respect of whom there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. The Act being a special law, its provisions must take precedence over those of the Code of Criminal Procedure.

8. The first question therefore, is, whether there are reasonable grounds to believe that the applicants are guilty of a scheduled offence. The expression "reasonable", according to Ballentine's Law Dictionary means, "not arbitrary, capricious or confiscatory". In Raghbir Singh v. I.-T. Commissioner (1958 Punj.250), reasonable" was interpreted to mean as "rational according to dictates of reason and not excessive or immoderate". The expression "reason to believe" came for interpretation before the Supreme Court of India in the case of S. Narayanappa v. I.-T. Commissioner, Bangalore A I R 1967 S C 523 and it was held that the belief must be held in good faith and it cannot be merely a pretence. In Ghulam Rasool v. Supdt. of Police P L D 1969 Lah. 781 "reasonable belief" was held to be a stronger expression than mere suspicion. Accordingly, in my opinion, the expression "reasonable grounds for believing" as appearing in section 5(6) of the Act would mean an honest belief in the guilt of the accused which is founded not on suspicion but upon reasonable grounds. The test, therefore, would seem to be supplied by material on which the prosecution supports its case. This material according to Sajjad Ahmad Jan, J. (as he then was) in Mansoor and 4 others v . The State P L D 1972 S C 81 would consist of "the accusations made id the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case and all the other relevant circumstances surrounding the occurrence". In Khalid Saigal v. The State P L D 1962 S C 495. It was observed by the Supreme Court as under:-

"It will be observed that even under Section 497(1) in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the court or his arrest is brought to the notice of the court and, as such, the court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilty or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether their exist any reasonable grounds upon which its believe can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists."

9. I am accordingly of the view that the question whether there are reasonable grounds to believe that an accused is guilty of a scheduled offence would depend at the initial stages on the allegations made by the prosecution in the F.I. R. the statements of the witnesses recorded by the police under section 161, Cr.P. C. and all other material which may be found by the court to be incriminating. Consequently, on the basis of such material if the court finds a prima facie case made out against the accused then unless there is some unimpeachable material in the hands of the defence to discredit the evidence of the prosecution witnesses no discretion would vest in the Court to grant bail to the accused.

10. Turning to the facts of the present case, the F.I.R. on the basis of which the prosecution against the accused has been lodged prima facie discloses commission of scheduled offences by the applicants as the allegations are that by making objectionable speeches, the applicants and the co-accused attempted to bring into hatred and contempt the Government established by law and further sought to create hatred or ill-will amongst different classes of people of Pakistan and disrupt the integrity of Pakistan. The allegations find full support from the statements of witnesses Rasool Bux, Ghulam Qadir and Pathan Khan recorded under section 161, Cr. P. C. Mr. Shaikh Mir Muhammad has, however, argued that there was delay in lodging of the F.I.R. which is fatal for the prosecution case. No doubt, there, was delay in lodging of the F. I. R., but, as contended by the learned A.A.G. delay can be fatal for the prosecution case if there are possibilities of false implication of some accused in the case or making of improvements in the case by the prosecution. Such possibilities appear to have been eliminated by entries made in the station diary, dated 2-10-1986, indicating that a Jalsa had taken place on the same date wherein applicant Mumtaz Ali Bhutto and other co-accused were present. The argument, therefore, has no force. The other arguments of Mr.Shaikh Mir Muhammad that the F.I.R. fails to disclose any offence or that no specific allegations have been, made against each of the accused individually, etc. relate to the merits of the case, which in my opinion, cannot be touched at this stage. The issues raised by Mr. Shaikh Mir Muhammad can only be highlighted by the defence during the trial of the accused. If any authorities are needed in this respect, reference may be made to Gulzar Hassan Shah v. Ghulam Murtaza and 4 others P L D 1970 S C 335; Muhammad Aslam and others v. The State P L D 1967 S C 539 and Farid v. Ghulam Hassan and others 1968 S C M R 924. However, even if the arguments are accepted, they, in my opinion, fail to throw any doubt on the prosecution case at this stage.

11. Therefore, at this stage it cannot be said that there are no reasonable grounds to believe that the applicants have committed the offences alleged against them. Even the last contention raised by Mr.Shaikh Mir Muhammad on behalf of applicant Mumtaz Ali Bhutto that he is a heart patient and as such entitled to bail cannot be considered in view of the provisions of section 5(6) of the Act as the provisions of section 497, Cr.P. C. are clearly subject to he provisions of the Act and the latter provide a clear bar against grant of bail to the accused in the circumstances referred to in section 5(6).

12. For the aforesaid reasons bail cannot be granted to the applicants and their bail applications stand rejected.

M.Y.H./S-47/K Bail refused.

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