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Bail Applications Nos.7 and 11 in Case No.S.H.2 pf 1987, decided on 10th May, 1987.

---S.497--Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.5(6)--Penal Code (XLV of 1860), S.124-A--Prevention of Anti-National Activities Act (VII of 1974), S.13--Bail--Sedition- Anti-national activities--Provisions of 5.497, Cr.P.C. are to be read subject to restrictions imposed by S.5(6) of Act of 197 which is a special law and its provisions have precedence over those of Cr.P.C.- Material available on record showing that applicants did actively participate in Jalsa organised by one of applicants and, therefore, in order to constitute a prima facie case against applicants it was not necessary to establish at this stage as to what was exactly said by them in their speeches or that who was principal offender and who was abetter as determination of such questions would tantamount to prejudging the case at a stage when trial of accused was still to begin--Station diary maintained by Police although did not specifically refer to some of applicants as persons who had made speeches at the function but it was difficult to ignore Press cuttings as no enmity had been alleged between applicants and 1 Press Reporters and consequently it could be said at this stage that there were no reasonable grounds to believe that the applicants had committed offences alleged against them--Bail applications rejected.

Nooruddin Sarki for Applicants Nos.1, 2, 3 and 7.

Shaikh Mir Muhammad for Applicants Nos.5 and 8.

A.A. Mohammadally, A . A . -G . for the State.

These bail applications have been filed on behalf of applicants Mumtaz Ali Bhutto and others who are facing prosecution under section 124-A, P.P.C. and section 13 of tire Prevention of Anti-National Activities Act, 1974. The proceedings have been instituted against the accused upon a complaint filed by Syed Siraj Hussain, D.S.P. Thatta.

According to the case of the prosecution, on 26-9-1986 at about 17-00 hours a Jalsa had been arranged by applicant Dr. Mumtaz Ali Uqaili at Uqaili Mohallah Thatta for the leaders of Sind Baluchistan Pakhtoon Front where about 3000 to 3500 persons participated. The above-named accused made speeches at the Jalsa and vehmently criticised the ideology of Pakistan and propagate-confederal system in the country and instigated the people to secession from the Federation on the basis that Pakistan comprises of more than one nationality and thereby they attempted to bring into hatred and contempt the Government established by law and tried to create disaffection towards the same. In their speeches, the accused incited the people of the small Provinces to rise against the people of other Provinces and thereby they sought to create hatred and ill-will amongst different classes of people of Pakistan and disrupt the unity of Pakistan with intent to excite dissatisfaction towards the Federal Government duly established by law. The accused also hurled serious allegations against the present Federal and Provincial Governments and it was vehemently urged to them that Constitution of 1973 be abrogated and powers from the President be snatched. Anti-State slogans against the Constitution of 1973 were also raised in the speeches, branding the Constitution as a fraud.

I have heard Mr. Sheikh Mir Muhammad and Mr. Nooruddin Sarki on behalf of the applicants and Mr. A . A . Muhammadally learned A.A.-G. on behalf of the State.

The learned counsel appearing on behalf of the applicants have vehemently urged that the complaint consists of vague allegations as nothing specific appears therein against the applicants and that mere presence of the applicants and other accused at a Jalsa would not tantamount to either commission or abetment of the offences alleged against them. According to the counsel, since more than 3,000 persons are alleged to have attended the Jalsa, all such persons would be guilty of abetting the offences if mere presence of the accused at the Jalsa is held to constitute an offence of abetment. It was further contended that since there are no allegations that any of the applicants had presided over the function consequently there were neither any principal offenders nor any abetters. Reference was also made to the Station Diary, dated 26-9-1986, maintained at Police Station Thatta, which according to the counsel, does not disclose commission of any offence either by applicant Mumtaz Ali Bhutto or Nabi Bux Bhurgari.

The bail application has been vigorously opposed by the learned A.A.-G. according to whom, the applicants cannot be enlarged on bail in view of the restrictions- imposed by section 5(6) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as "as to Act"). As regards the other contentions raised on behalf of the applicants, the argument of the learned A . A .-G . has been that the same cannot be considered at this stage of the case as there is sufficient material on record to prima facie establish' that the accused have committed scheduled offences with which they have been charged.

As far as the first contention of the learned A.A.-G. is concerned, the question raised by him has already been dealt with by this Court in its order, dated 6-5-1987, passed on the bail applications in Case NO.S.H.1/1987 wherein it has been held that the provisions of section 497, Cr.P.C. are to be read subject to the restrictions imposed by section 5(6) of the Act, since the latter is a special law and its provisions have precedence over those of the Code of Criminal Procedure. The reasons for the same have been fully stated in that order and a copy of the same may be placed on record of this case and he read as part of this order. Consequently, it will not be necessary for me to enter into any discussion on the point once again.

So far as the contentions raised by the counsel for the applicants are concerned, it is first to be determined whether there exist any reasonable grounds for believing that the applicants have committed any scheduled offence, because if the answer is found to be in the affirmative, that would take away the discretion vesting in this Court to grant bail to the applicants in view of the provisions contained in section 5(6) of the Act.

Although according to the complaint filed in the case, all the accused persons are alleged to have contributed towards commission of the alleged offences, but the argument of the learned counsel for the accused is that the allegations in the complaint are vague and that no specific role has been assigned to each of the accused. Reference has also been made to the station diary maintained at P.S. Thatta, dated 26-9-1986, which although specifically refers to applicants Dr. Mumtaz Ali, Aijaz Ali, Punhoo and some others, as persons who had made speeches at the function but admittedly no specific reference has been made therein in this respect to the other applicants. However, photo copies of cuttings from newspapers ('Ibrat' and 'Jang' have been filed alongwith the complaint which specifically refer to the speeches made by applicants Mumtaz Ali Bhutto, Sher Khan, Punhoo, Dr. 'Mumtaz Ali and some other accused in the case at the Jalsa. The Press Reporters of daily 'Ibrat' and daily 'fang' have also been cited as witnesses in the case.

From the above material it clearly appears that the applicants did actively participate in the Jalsa organized by applicant Dr. Mumtaz Ali Uqaili. Therefore, in order to constitute a prima facie case against the applicants it is not necessary to establish at this stage as to what was exactly said by the applicants in their speeches or that who was the principal offender and who was the abetter as determination of such questions in these bail applications would tantamount to prejudging the case at a stage when the trial of the accused is still to begin. No doubt, the station diary maintained by the police, dated 26-9-1986, does not specifically refer to applicants Mumtaz Ali Bhutto or Nabi Bux Bhurgari as the persons who had made speeches at the function but it is difficult to ignore the Press cuttings as no enmity has been alleged between the applicants and the Press Reporters. The argument advanced by the defence counsel that mere presence of the applicants at the Jalsa would not constitute the alleged offence is also not tenable as according to the material produced by the prosecution, there is rime facie evidence that some active part was taken by the applicants at the unction.

Consequently, it cannot be said at this stage that there are no reasonable grounds to believe that the applicants have committed offences alleged against them.

For the aforesaid reasons these bail applications cannot be accepted and the same stand rejected.

S.Q./S-87/K Applications rejected.

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