The petitioner in this case who is an enrolled Advocate of this Court and the Supreme Court was arrested on the 2nd of January 1973 for offences punishable under rules 42 and 49 of the Defence of Pakistan Rules. Successive bail applications before the trial Court and the Sessions Court having failed the petitioner is now before me praying for bail pending his trial. The prosecution is based upon a statement or rather the record of an interview reported by a newspaper reporter in the issue of 21st October of newspaper Hurriat. In order to appreciate the argument raised before me it is necessary to summarise in brief the statement which does not claim to be a verbatim record of what the petitioner said. It is not claimed by the prosecution that a written statement was given; at any rate they are not in a position so to assert. On the side of the petitioner no positive state--ment is made as to the form in which the statement was made but it is asserted that what has been attributed to him has been twisted out of the context and does not bear the meaning which the prosecution claims that it tees. Be that as it may; for the present I will assume that the account given 6y the prosecution of this interview, although not complete, in so far as it hoes, correct.
Accordingly I see no reason why I should take up the whole statement but am content to reiterate the allegations as they are stated in the F. I. R. Which purports to incorporate them.
3. This, in brief, referred to the fact that the President has recently called a conference for the purpose of restoring peace and good order which has been disturbed on account of what are usually referred to as the language riots .In Sind. I think I can take judicial notice of the fact that there was, at that time, an agitation concerning the use of Sindhi and/or Urdu in the Province of Sind and the fact that the President had summoned to Rawalpindi a number of leading men in order to be able to achieve peace. The interview then goes on to say that the organization of which he was an acting Convenor, namely, the "URDU QOUMl COUNCILS" had not been called and that those who are representing the Urdu-speaking People were not their duly authorised agents. The petitioner then claimed that the non-Sindhi-speaking People of Sind, or, as is translated in the F. I.
R., the Non-Sindhis of Sind, whatever that paradoxical expression that might mean, were a separate 'QOUM'. I deliberately refrain from translating the word 'QOUM' because it might well be a question of controversy in the trial below, whether the expression 'qoum' refers to a nationality, a race or some other kind of classification of human beings. It then goes on to say that unless these people are treated as a separate qoum and their place as such recognized in the Constitution they, namely, the URDU COUNCIL; will not be able to accept such a Constitution and finally it is said, making, five demands that if these are not accepted they will be forced to resort to 'RAST QADAM'.
Again I do not wish to translate the word 'RAST KADAM'. According to Mr. Brohi it means a right step; according to the Advocate-General it means a direct step. I am willing to assume in favour of the prosecution and regard it as the ultimate step. I am, however, unable to agree with the Advocate- General, at this stage and of course purely prima facie, that in the entire context of what has been said before the word "ultimate" or "RAST" must necessarily mean violent. No dictionary meaning has been quoted to me nor do I think it is necessary in a case of this kind to refer to one for discovering the meaning. Words are after all imperfect instruments of human expressions and their meaning must be coloured by their context. That context the learned Advocate---General asks me to obtain from the history of this sub-continent in the previous 25 or 50 years and refers me to various kinds of direct action do not wish to enter, nor do I have the ability to enter into a scholar historical review of what took place during the last half century but certainly instances are not lacking where direct action has been taken and has not been violent. I am not, therefore, able to agree that this necessarily is an invitation to violence.
4. Before I go on to comment upon the statement further I must refer to the fact that the power of the grant of bail in cases like the present is controlled in some measure by rule 210 of the Defence of Pakistan Rule:, which reads as follows "210. Special provision regarding bail.-Notwithstanding anything contained in the Code no person accused or convicted of a contravene lien Of those 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."
This rule came up for interpretation before me in an unreported case of Begum Silvat Sher A.I v. The State (Cr. Bail Application No. 408 of 1972); on the basis of rule 210, in that case I refused bail. It is true that the Supreme Court has subsequently been pleased to grant Leave to Appeal against this judgment and that their Lordships have not yet decided the case. When their Lordships do so decide I will of course loyally follow that judgment, as a Judge of the High Court must, but till then I am not prepared to assume that merely because leave has been granted my judgment was necessarily wrong. Indeed Mr. Brohi agrees that for the purpose of this case he will accept the law as laid down in the judgment as being a correct statement. In the course of that judgment contrasting the provisions of section 497 of the Criminal Procedure Code and rule 210 I stated "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'. Section 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 con-- travention'. The words `such contravention' refer to a contravention of such rules or orders made thereunder as are notified by the Central Government. The Central Government has issued a notification in res--pect of the provision in question in this case. I am not quite convinced that as a matter of pure theoretical construction the two provision mean the same thing; I would however, agree that in a ease 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 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.
Now cases of this kind which on the one hand insist upon the Court 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 that 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, it 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 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."
Setting the same criterion before myself I should like to make one point clear that although rule 210; imposes the very uncomfortable duty of coming to what is apparently a decision of the case that decision is for the purpose of the bail application alone. It must be clearly understood that the object of that decision neither is nor can be to decide the case for the original Court. I should have thought that this is entirely clear and needs no reiteration and I myself have in my previous judgment expressly said so, but I am grateful to Mr. Brohi for pointing out something in rule 210 which makes the position quite clear. Rule 210 does not speak of accused persons only, but even convicted persons. It is conceivable, therefore, that after conviction this Court can be called upon to decide the question of bail pending the hearing of the appeal and would have to perform the same exercise as I am now doing. It is also possible that subsequently the High Court, whether by the same Judge or not, might take a different view and maintain the conviction. I can see no incongruity in this. Although the criterion might be the same, or at any rate similar, the purpose of the two exercises is entirely different and the result of one cannot govern a decision in the other.
The F. I. R. Talks only of rules 42 and 49. Rule 49 is the punitive provision and the definition in rule 42, sub-rule (6) consists of a large number of clauses. The learned Advocate-General, however, states that the case is under clauses (g) and (h) which read as follows "42 6)-(g) to promote feelings of enmity anti hatred between different classes of citizens;
(h) to cause fear or alarm to the public or to any section of the public :-"
So far as clause (g) is concerned I would like to point out that the classes in question according to Advocate-General are, upon the worst view that can be taken of this case, can only be the Sindhis and the non-Sindhis of Sind. Now these two classes if separate classes are not of the creation of the petitioner. They admittedly existed before. Any difference between these two classes again are no doubt not of the petitioner's invention; again they existed before and it is indeed the case of the Advocate-General that differences between these two having been resolved a statement of the present kind makes the case all the worse. That may be true, it may or may not have been proper or discrete of the petitioner to have made the speech I am not concerned with either propriety or discretion. I am concerned only whCther the case comes under clause (g).
6. The burden of the theme of the statement is that those who repre--sented the non-Sindhis were not qualified to do so and that he himself, or at least the organization which he represented, was the sole qualified person. In that view of the matter I do not see how the speech can be said to promote feelings of enmity and hatred between the two classes. The learned Advocate-General states that the petitioner had no business to make such a statement inasmuch as the President had already called the elected repre--sentatives of the people. Now there are various difficulties in accepting this argument. In the first place, so tar as I know, and it is not contended before me, that any body has been elected as representative of the non. Sindhis of Sind as such. In any case the gentlemen who were called to the conference whatever their other qualifications might be were not all members of elected Legislatures. With great respect to the Advocate-General, therefore, I do not see any substance in this argument.
7. The other clause is clause (h) which talks of the causing of fear and alarm. Admittedly this can apply only f by the words `direct action', ultimate action or however else the. Original might be translated violence is imputed; as to that I have already made observations. I do not, therefore think, that clause (h) applies
8. In the circumstances of the case I am, therefore, persuaded that within the conditions of rule 210 this is a case in which I must grant bail. I wish it, however, clearly to be understood, if my previous observations are not clear enough, that this is a finding reached by me for the purpose only of this bail application, and the petitioner will be released on furnishing security in the sum of Rs. 10,000 with one surety, to the satisfaction of the trial Court and P. R. In the like amount.