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Criminal Miscellaneous Applications Nos. 2705 and 612 of 1962, decided on 19th November 1962.
Power of High Court or Court of Sessions under S. 498 in non -bailable cases‑Not confined to statutory limitation laid down in Ss. 496 & 497‑Mere fact that offence punishable with transporta tion for life‑Not sufficient to refuse bail under S. 498.
Rasul Bux and others v. The State P L D 1956 Kar. 381 rel. Gushtasab Khan v. The Crown P L D 1956 F C 117 ; Khalid Saigol v. The State P L D 1962 S C 495 ; Jairam Das v. Emperor A I R 1945 P C 94 ; Karimbux Jatoi v. Crown P L D 1952 Sind 43; Crown v. Khushi Muhammad P L D 1953 F C 170; Hidayatullah Khan v. Crown P L D 1949 Lah. 21 ; Emperor v. Sadashiv Narayan Bhalerao P L D 1947 P C 32 ; State v. Abdul Ghaffar Khan P L D 1957 Lah. 142 and Nasrullah Khan Aziz and another v. The State P L D 1960 Lah. 35 and Gour's "Penal Code", pp. 551 and 561 ref:
A. K. Brohi and Azizullah K. Shaikh for Appellant.
Khalid Ishaque, A. A. G. for Respondent.
Date of hearing : 12th November 1962.
This is a bail application under section 498 of the Cr. P. C. in a case under section 124‑A, P. P. C. pending before Mr. Muzaf faruddin, Special Magistrate, Multan, appointed by notification dated the 18th of September 1962 under section 14 (1) of the Cr. P. C. to try cases triable under section 124‑A of the P. P. C. throughout West Pakistan with headquarters at Multan. Under this notification the Special Magistrate his also been invested with powers under section 30 Cr. P. C.
2. Sardar Attaullah Khan the petitioner is the Head of the Mengal tribe of Baluchistan and Sind and is a Member of the National Assembly of Pakistan from Kalat Constituency. At a public meeting of the residents of Lyari held on the 22nd of August 1962 at about 9‑15 p. m. at the Kakri Ground, Embankment Road, Karachi, he delivered a speech in Urdu. This speech is alleged to be an attack against the Government established by law, the system of Government in force in the country, its Constitution, the President of the Republic of Pakistan and the persons in authority and power who were authorised by law to administer executive Government. In the complaint filed on behalf of the District Magistrate, Karachi, dated the 21st of September 1962, it is alleged that the petitioner in his speech has accused the Government and its executive head of blood‑shed, oppression, torture, usurpation of power and authority, mal‑administration, acts which are detrimental to the well being and existence of the State, practice of fraud and deception on the ignorant public, indifference to the welfare of the people. According to the com plaint the petitioner had painted a picture of high‑handedness, chaos and disorder prevailing in the country. The petitioner was arrested on the 7th of September 1962. He was refused bail on the 17th of September 1962 by the D. M., Karachi. The Addi tional Sessions Judge, Karachi by order dated the 20th of Septem ber, 1962 had also declined bail.
3. The complaint in this case was instituted after obtaining the sanction from the Government concerned on the 21st of September 1962. On the 6th of October 1962 bail application was moved by the petitioner before this Court at Lahore. The learned Chief Justice by order dated 1st of November 1962 has transferred this matter to this Court for disposal.
4. The bail application is opposed on behalf of the Govern ment of Pakistan. The learned Additional Advocate‑General has urged before me that under section 498 of the Cr. P. C. this Court can only grant bail if it is satisfied that there are no reason able grounds for believing that the petitioner has been guilty of an offence punishable with death or transportation for life. In other words, the learned Addl. Advocate General has urged that under section 498 of the Cr. P. C. the High Court's discretion is confined to the statutory limitations laid down in section 497 of the Cr. P. C. and it does not possess an unfettered discretion to release accused persons who are alleged to have committed offences, the punishment of which is transportation for life. In support of his contention the learned counsel has invited my attention to the case of Gushtasab Khan v. The Crown (P L D 1956 F C 117) and Khalid Saigol v. The State (P L D 1962 S C 495). In these cases their Lordships of the Federal Court and Supreme Court have observed that the power conferred upon High Courts and Courts of Session by the latter portion of section 498 is in the nature of a corollary or rider to the power conferred upon Courts in general by section 497. In other words, a High Court or Court of Sessions when it takes action to grant bail does so under section 496 or 497, read with section 498, and must not be assumed to be drawing its capacity from a source wholly distinct from the two earlier sections. But both these cases are distinguishable. In the first case there was a limited question for consideration before their Lordships namely, when a Court of Sessions grants bail to an accused person in a case pend ing before a Magistrate, can it cancel the order later on Their Lordships following the decision delivered by the Judicial Committee of the Privy Council in Jairam Das v. Emperor (A I R 1945 P C 94) held that action under section 498, Cr.P.C. by a High Court or a Court of Sessions is to be regarded as falling under section 497 Cr. P. C. and both the Session Court and the High Court were competent to cancel bail under the provisions of section 497 (5). In the second case also there was a limited question for considera tion before their Lordships of the Supreme Court whether the provisions of section 427 read with section 417 of the Cr. P.C. are controlled by sections 497 and 498 of the Cr. P.C. It was urged before their Lordships that when the matter comes up in appeal before the High Court, the power to grant bail in such cases is exercised under section 427 of the Cr. P.C. and not under section 498. This contention was uphold. Their Lordships held that sections 496 and 497 were not intended to control section 427 Cr. P. C., and further held that section 498 had no reference to acquitted persons for it is merely ancilliary to sections 496 and 497.
5. It is therefore quite clear that there is no direct decision on the question under consideration. In Rasul Bux and others v. The State (P L D 1956 Kar. 381) on review of number of decisions of the High Court in this sub‑continent it was held by me that the High Court has unfettered discretion under section 498 and the rule of general law laid down under section 497 Cr. P.C. is not binding on it. In that connection the following observations were made by me
"That the High Court has unfettered discretion under section 498 and is not precluded from taking special circum stances into consideration for granting bail. The rule of general law laid down in section 497 Cr. P. C. is not binding on the High Court. The question of granting or refusing bail depends upon the particular circumstances of each case ; the mere fact that an offence is punishable with death or life impri sonment is not by itself sufficient to refuse bail under section 498 of the Cr. P.C. The policy of law is to grant bail rather than refuse it in the case of under‑trial prisoners and the Courts should be lenient until they are convicted."
In order to test the soundness of the above‑mentioned view I have again considered the whole question with the aid of the learned counsel for the parties. In my opinion the mere fact that in the above‑mentioned decision their Lordships have held that the provisions of section 498 are ancilliary to sections 496 and 497 of the Cr. P.C., .it does not lead to the conclusion that the High Court under section 498 of the Cr. P.C. is bound by the statutory limitations which are laid down in section 497 of the Cr. P.C.
6. Mr. Khalid Ishaque, the learned Addl. Advocate General, has placed before me the observations of their Lordships of the Privy Council in the case of Lala Jairam Das and others v. Emperor:
"In truth the scheme of Chapter XXXIX is that sections 496 and 497 provide for the granting of bail to accused persons before trial, and the other sections of the chapter deal with matters ancilliary or subsidiary to that provision."
The contention raised before me on this decision was repelled by Constantine, J. in the case Karimbux Jatoi v. Crown (P L D 1952 Sind 43) at page 51. He observed as under :‑
"I respectfully, but firmly, disagree with the view that the High Court or Court of Sessions, acting under section 498 in non‑bailable cases, are restricted to the grounds of release set out in section 497. Before 1923 the trial Court (an expression used for brevity's sake) had power to release a person accused of a non‑bailable offence only if it. thought there were not reasonable grounds for believing him guilty. Section 498 was clearly necessary, in my opinion, in order to allow the High Court and Court of Sessions a discretionary power of release on other grounds. When, in 1923, discretion limited to specific grounds was entrusted to the trial Court, this amendment did not affect the general discretion already conferred by section 498 on the High Court and Court of Sessions. As to the argument founded on Jairamdas case the Privy Council, considering the question whether convicts fell within the scope of Chapter XXXIV, pointed out that sections 496 and 497 refer only to accused persons, whereas section 426 in Chapter XXI refers to convicted persons, and concluded that other sections of Chapter XXXIV had reference only to accused persons.
"Lord Russel said :‑
In truth the scheme of Chapter XXXIV is that sections 496 and 497, provide for the granting of bail to accused persons before trial, and the other sections of the Chapter deal with matters ancilliary or subsidiary to that provision.'
The words that provisions' do not mean their provisions' ; the use of the singular shows that Lord Russel referred only to the fact that sections 496 and 497 deal with accused, and not con victed persons."
In Crown v. Khushi Muhammad (P L D 1949 Lah. 21), although their Lordships held that section 498 does not in any way enlarge the category of persons to whom bail can be granted under Chapter XXXIX and that section 498 is ancilliary or subsidiary to sections 496 and 497 yet Abdul Rashid, C. J. observed at page 180
"The powers of the High Court under section 498, are not merely revisional as has been observed by Tyabji, C. J. in the Sind case, but are concurrent with those of the Court of first instance."
Shahabuddin, J. on the question under consideration ‑observed as under :
"Tyabji, C. J. in the Sind case has observed that the power of the High Court and Court of Sessions under section 498 is not affected by the limitations on the grant of bail imposed in section 497 and Cornelius, J. in the Full Bench case has expressed the same view. Khosla, J. of the East Punjab High Court, however, is of opinion that after the decision of the Privy Council in Lala Jairam Das's case (supra) that view cannot be regarded as correct. For the purposes of the present case I do not find it necessary to deal with this point, for, even if it is assumed that the power under section 498 is unfettered by the limitations imposed in section 497 the fact still remains that that power can be exercised only for granting bail, and as I have already stated some sort of custody is a condition precedent to the grant of bail."
7. Thus it is absolutely clear that the Federal Court or the Supreme Court of Pakistan has not. pronounced any opinion on the question under consideration. The observations of Corne lius, J. referred to in the case of Hidavatulllah Khan v, Crown (P L D 1949 Lah. 21) at page 26 are to the following effect : -
"The words which are relevant to the present discussion are :
"The High Court may, in any case, direct that any person be admitted to bail." The use of these words section 498, which is clearly a section intended to supplement and complete the provisions of sections 497 and 498 justified the belief that the power given includes a power to revise the exercise of discretion by Police Officers and Courts of first instance where bail has been refused, in different classes of cases specified in section 49'' in regard to the question whether or not a person shall be released on bail (the discretion to fix the amount of bail which falls to be exercised under sections 496 and 497 is revisable, but for the purposes of reduction only, as seen above). But the words employed are wider than are necessary merely for giving a reversionary jurisdiction to the High Court over such acts of Police Officers and Magistrates ; they include clearly a power in the High Court to grant bail to persons to whom the police and the Courts of first instance are not permitted by section 497 to grant bail, namely persons who are not under 16 years of age or of the female sex or sick or infirm, against whom there appears a reasonable ground for believing that they have been guilty of offence punishable with death or transportation for life."
As demonstrated above this view still holds good. In my opinion the ancilliary nature of the provisions of section 498 in relation to sections 496 and 497 are to be read in this light and not that the power of the High Court under section 498 of the Cr. P. C. is also confined to the statutory limitation laid down in sections 496 and 497 of the Cr. P. C. In the latest authority of the Supreme Court in Khalid Saigol v. State the following observations of their Lordships are also be born in mind
"We may state straightaway that where a Court is called upon to exercise its judicial discretion, it will not be discharg ing its functions properly if it were to proceed upon any a priori assumption that in all cases where an offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused, nor can there be any rule or practice upon the basis of which such a discretion can be judicially exercised, for, rarely will there be two cases in which the facts are alike. To act upon a rule of practice may, therefore, well constitute an arbitrary exercise of a discretionary power, for, the exercise of discretion vested by law in a Court must be upon sound judicial principles after taking into account the facts and circumstances of each case. The nature of the accusation and the heinousness of the crime alleged are, no doubt very relevant circumstances to be taken into consideration, but by themselves they are not the only circumstances, as we have endeavoured to point out, even under sections 496 and 497. What further considerations should be taken into account by the Court in deciding this question must necessarily depend upon the facts and circumstances of each case, and no hard and fast rule can be laid down."
It is therefore quite clear to me that the view taken by me in P. L D 1956 Kar. 381 still holds good and the power exercised by the High Court under section 498 being supplemental to sections 496 and 497 of the Cr. P. C., on its phraseology confers a much larger power to grant bail in pending cases than those mentioned in sections 496 and 497 Cr. P. C. The contention of the learned Addl. Advocate‑General therefore that once this Court comes to the conclusion that there is a reasonable ground to believe that the petitioner has been guilty of an offence under section 124‑A, which is punishable with transportation for life, it cannot grant bail cannot be accepted and must be repelled.
8. On merits it will be observed that both the subordinate Courts at the time of passing the impugned order did not have before them the speech delivered by the petitioner and refused the bail to him simply on the ground of the grave nature of the offence. With the aid of the learned counsel of the parties I have gone through the alleged speech: It can be divided into four parts. In one part the petitioner has narrated the atrocities com mitted by the Chief Martial Law Administrator in Baluchistan. In the second part there is strong criticism of the late Ghulam Muhammad and Iskander Mirza's regimes with an implied innuendo that both of them were maintained in office through the backdoor help of some army officers. In the third part the citizens of Lyari quarter were compared with the toiling masses of Pakistan and it was alleged that they were not having a fair deal at the hands of the Government. In the last part the present Constitution has been strongly criticised on the ground that it was not framed by the people of Pakistan and cannot be accepted as charity. In the concluding portion the audience was advised to zealously watch their rights and to give exemplary lessons to those who trample it.
9. Undoubtedly the speech was delivered in a very bad taste. It is full of objectionable material. Prima facie the State has a good case against the petitioner. But, Mr. Brohi contended that section 124‑A, P. P. C. is inapplicable because it prohibits creating feelings of disaffection etc. towards Government estab lished by law, whereas the present Constitution guarantees only enforcement of law and not the enforcement of the Constitu tion as law. He further argued that in the changed circumstances namely the provision in the Constitution for the election of the Head of the State, creating disaffection and hatred against him can not be held to be sedition. In this connection reference was made to Gour's commentary on the Penal Code at pages 551 and 561. He further urged that the preaching of violence is a necessary ingredient of the offence of sedition. The learned Addl. Advocate‑General in reply referred to Emperor v. Sadashiv Narayan Bhalerao (P L D 1947 P C 32) to meet these arguments.
10. At this stage, however, it is not necessary to express any opinion on the point raised before me. In the eye of law the charge of sedition is always a serious charge. But circumstances may either aggravate or minimise that offence. In certain circum stances the consequences may be negligible and the offence may prove to be of a trivial nature. It is for this reason that the Legislature has prescribed as an alternative to punishment of transportation for life, a shorter period of sentence including imprisonment for three years. Two cases cited by the learned Additional Advocate‑General viz. State v. Abdul Ghaffar Khan (A I R 1957 Lah. 142) and Nasrullah Khan Aziz and another v. The State (P L D 1960 Lah. 35) show that after partition there is a tendency to award light sentences in sedition cases. In the first case Khan Abdul Ghaffar Khan was sentenced under section 124‑A to a fine of R s. 2,000. In the other case the convicted persons were sentenced to a fine of Rs. 500 only.
11. In the present case the petitioner delivered the alleged speech in the Lyari Quarter. It is not alleged that it was followed by any untoward incident. It is not alleged that the petitioner has delivered any other offensive speech besides the one under consideration. It is admitted that he is a Member of the National Assembly and is a man of status. His counsel has given an under taking that during the pendency of the trial he will not address any political public meeting. It is also not seriously suggested that the petitioner is likely to abscond. There is also no question of tampering with the prosecution evidence. In these circum stances I have come to the conclusion that the petitioner should not be deprived to defend himself particularly as his conviction may even result in his losing the National Assembly seat.
12. I therefore consider this as a fit case for granting bail. The petitioner is ordered to be released on bail in the sum of Rs. 25,000 with two sureties in the like amount furnished to the satisfaction of this Court or in the Court of the Special Magistrate, Multan. The petitioner, before release on bail, will also give an undertaking in writing in the Court of the Special Magistrate that he will not address any public meeting on political questions during the pendency of the trial. Breach of this condition will amount to contempt of this Court, besides resulting in cancella tion of bail.
K. B. A.
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