Syed Muzaffar Hussain Shah and Khan Wajid Nawaz Khan, Advocates of Muzaffargarh, who are the petitioners herein, were arrested on the 30th of November 1973, for offences under section 380/485/147/149, Pakistan Penal Code. Subsequently, rule 43 of the Defence of Pakistan Rules, 1971 was added. They applied for bail which was refused by the local Magis--trate. They did not succeed before the Sessions Judge either and, therefore, moved an application in this Court, which came up for hearing before me in motion on the 11th of December 1973, when notice was issued to the Advocate-General for today. I have, by a short order of date, and for reasons to be recorded later on, admitted the petitioners to bail, subject to their furnishing security in the sum of Rs.
5,000.00 each with one surety each in the like amount to the satisfaction of the Assistant Commissioner, Muzaffargarh. I, therefore, proceed to record reasons in support of my said order.
2. The allegation against the petitioners is that they, in a meeting of some four to five hundred lawyers and other persons at Kutchery Road, Multan, exhorted them to cut wires of the telephone and electricity to bring to an end the means of communication. They then entered the office of the Pakistan Peoples Party and caused damage to the property. There is, however, no allegation made in the F. I. R. That as a result of their act of excitement the means of communication were disrupted or any telephone or electric wires were, in fact, cut. The Investigating Officer who was present in Court apprised me that some two unidentified persons had cut about six yards of the wire connecting the office of the Pakistan Peoples Party. It is not clear whether that wire was taken into possession.
3. Learned counsel for the State contended that the petitioners are also being proceeded against, under rule 43 of the Defence of Pakistan Rules, 1971, and that rule 210 of the Rules bars the admission of an accused person to bail, unless the Court is satisfied that he is innocent. Rule 210 reads as follows :------ "210. Special provision regarding bail.-Notwithstanding anything con--tained in the Code no person accused or convicted of a contravention of these 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 provisions 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."
It is manifest that the rule does not contemplate that the Court must hold that the accused person is innocent and then admit him to bail. If this had been the intention, then the very concept of bail under the Defence of Pakistan Rules would be negated. In view of the allegations made in a report against an accused person it may be most difficult, if not impossible, to hold in any case that a person is positively innocent. Moreover, a person cannot be held to be innocent in proceedings for bail because if the Courts are to do so, they will have to scan the whole record and pass judgment, which will indubitably be wrong in a case where truth or falsity of the allegation is yet to be determined in the light of the evidence which may have to be led. It will be against the fundamental principles of jurisdprudence and the concept of justice to permit such a course of action. It is, in fact, the duty of the Court to ensure that nothing is said in the order or judgment which may pre judge an issue, because it may prejudice either of the parties, and also affect the objectivity of the judicial officer. I am clear in my mind that what the Court is to see in such circumstance is not that the accused is demonstrated to be innocent but whether reasonable grounds exist to show that he has not committed the offence. It is in the light of the allegations of the prosecution, the denial of the accused and the attendant facts and circumstances that one has to form an opinion whether reasonable grounds exist to believe that the person is guilty of the alleged offence. The same view was taken in Jan Muhammad v. State (PLD 1973 Lah. 643 where it was observed that if clause (b) of rule 210 of the Defence of Pakistan Rules, 1971, is attracted to the facts of a case, bail cannot be granted to the accused in that case unless he satisfies the Court that there are reasonable grounds for believing that he is not guilty of the offence alleged against him. . In Allan Tufail Muhammad v. The State- (Petition for Special Leave to Appeal No. 36 of 1973) their Lordships of the Supreme Court admitted the petitioner to interim bail in the case which was registered against him under rule 32, read with rule 213 of the Defence of Pakistan Rules, 1971, by observing that at the stage when the question of interim bail is under consideration, the Court cannot undertake "an examination and analysis of the speech alleged to have been delivered by the petitioner". It was further observed: "That stage has not yet arrived. However, as important questions of law touching the liberty of the subject have arisen in this case and we have granted leave to appeal to examine them, we would allow interim bail to the petitioner . . . . . . . . . . . . . . ."
4. The case against the petitioners is that they excited the persons attending the meeting to disrupt means of communication. It is, however, not stated in the F. I. R. That as a result of their inducement .Any public telephone or electric wire was cut. It transpired during the investigation that about six yards of telephone wire connecting the telephone of the Pakistan Peoples Party was cut. Neither the wire has been taken into possession nor any person alleged to be guilty of this act has been arrested. In fact, no such person has been identified. Learned counsel for the petitioners submitted that his clients did not exhort any person to disrupt means of communication, and contends that allegation against them has been made with a view to waking out a case for justifying their arrest.
The petitioners are practising lawyers. They have been in the police lock-up since the 30th of November- 1973. I asked the Investigating Officer as to why they had not been sent to the judicial lock-up. The reason given by the learned Assistant Advocate-General in this behalf was that the police wanted to effect recoveries. He, however, admitted that nothing was recovered from them, or at their instance. The position, in the circumstances, merited to be accepted.
5. Before parting with this case, I would like to observe that if during the pendency of the case the petitioners make any subversive speech like the one which is alleged against them, or indulge in any subversive activity, the respondent will be at liberty to apply to the trial Court for cancellation of their bail.