The petitioner Ruknuddin has been arrested on a charge under Rules 42 and 49 of the Defence of Pakistan Rules. Although it is not stated either in the first information report or by the Assistant Advocate-General at the time of arguments as to which clause of Rule 42 is attracted in the case. I am of the view that of the various clauses in Rule 42(6) which define what is a "prejudicial act", the clauses which approximately or remotely can possibly apply in this case would be clauses (e) and
(g) of the said Rule. These clauses read as follows :- Prejudicial act' means any act which is intended or is likely-
(e) to bring into hatred or contempt, or to excite disaffection towards the Government established by law in Pakistan ;
(g) to promote feelings of enmity and hatred between different classes of citizens ;"
Contravention of Rule 42(6) of the Defence of Pakistan Rules is punishable under Rule 49 of the same Rules and the maximum sentence provided is imprisonment for a period of five years or fine or both.
2. Normally in the scheme of Code of Criminal Procedure whenever an offence is punishable up to five years, bail could be granted but the learned Assistant Advocate-General relied on Rule 210 of the said Rules, for the purposes of supporting an argument that this Court will have no power to grant bail unless it was satisfied that there are reasonable grounds for believing that the accused is not guilty of contravention of Rule 42. It would thus appear that in matter of grant of bail the scheme provided in the Defence of Pakistan Rules is different from the scheme provided under the normal law' viz., the Criminal Procedure Code. However, there have been cases when in spite of such prohibition as is contained in Rule 210, the superior Courts of this country including the Supreme Court have granted bail. I may only refer to the case of Begum Silvat She A.I v. The State which was numbered as Criminal Bail Application No. 408 of 1972. General Sher A.I was accused of contravention of Rule 42 and his application was heard by my Lord the Chief Justice who rejected the same. The matter was taken by way of Special Leave to Appeal to the Supreme Court and their Lordships of the Supreme Court interpreted the scope of the powers of the Court to grant bail in the matters falling within the ambit of Rule 210 of the Defence of Pakistan Rules. Their Lordships of the Supreme Court in their order expressed themselves as follows:-- "Section 210 on the other hand forbids the Court to grant bail unless the Court 'is satisfied that there are reasonable grounds for relieving that he is not guilty of such contravention. The words such contravention refer to a contravention of such rules or orders made thereunder as are notified by the Central Govern--ment. Admittedly the Central Government has issued a notifica--petition in respect of the provision in question in this case. I am not quite convinced that as a matter of pure theoretical construction the two provisions mean the same thing I would, however, agree that in a case 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 a rule in non-bailable offences but is refused if there are reasonable grounds as aforesaid, under Rule 2 10 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's satisfaction in this degree before bail can be granted, and on the other hand depend upon a single piece of evidence, which is precisely avail--able to the High Court at 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 retrain 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, its finding would of necessity be of a tentative character and therefore, unlikely to cause such prejudice even if Court has not used careful language."
3. It would thus follow that despite the bar contained in Rule 210 in regard to grant of bail this Court could not be said to be precluded from exercise of the right to grant bail in cases which may have been registered under Rules 42 and 49. 1 am myself clear in my mind that if the allegations against the accused person can be fairly considered to fall with the scope of Rule 42 there would be an exclusion of power to grant bail and if on the other hand on a consideration of the allegation broadly it may appear that there was a reasonable likelihood of the case not falling under Rule 42, the powers of this Court to grant bail are not curtailed. The only limitation is that the observations that I make now are of a purely tentative nature and there is a possibility of the trial Court coming to a contrary conclusion after the evidence is recorded. Keeping this principle to view I proceed to consider the bail application fixed before me.
4. The prosecution story is that S. H. O., Tangwani Police Station wanted to arrest some proclaimed offenders. He received information that the offenders were staying with the present petitioner and proceeded to arrest them. The persons who were sought to be arrested escaped but the petitioner who was present in his house, was apprehended. In the meanwhile one Tangwani informed the police officer and made allegations against the petitioner and the absconders in the following terms:-- "They were great miscreants and were always making propaganda against the present Government that it was the Government of infidels and was a fraud and seized power by throwing dust in the eyes of the people and that the Constitution made by them was un-Islamic. They say that the Reforms implemented by the Government is a fraud and the wealthy people of the People's Party have not surrendered single inch of their land and that this Government was of goondas. They further say that the Province of Sind be freed like Bangla Desh and carry the banner of freedom and be prepared for sacrifice. Their: activities were against the solidarity of the country."
5. On a reading of the allegations as contained in the first information report it would appear that the petitioner had accused the Government of Pakistan to be a Government of infidels who had seized power by cheating the people and that the Constitution was un-Islamic. It has also been stated that they used to instigate persons to take steps for separating the Province of Sind like Bangla Desh.
6. Without expressing any opinion as to the truth of the allegation I have no doubt that these allegations, if true, do infringe Rule 42 of the Defence of Pakistan Rules and for that reason I am not inclined to grant hail to the petitioner.
This bail application is rejected.