' The petitioner 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 upto 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 Sher Ali v. The State
(1) which was numbered , as Criminal Bail Application No, 408 of 1972. General Sher Ali 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 believing that he is not guilty of such contravention.' The words 'such contravention' refer to a contravention of such rules 9r orders made thereunder as {{FOOT NOTE}}
(1) 1973 P Cr. L J 935 {{FOOT NOTE}} ' are notified by the Central Government. Admittedly the Central Government has issued a notification in respect of the provision in question in the 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 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'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 available 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 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, 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. I am myself clear in my mind that if the allegations against the accused person can be fairly considered to fall within 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 in view I proceed to consider the bail application fixed before me.
4. Briefly the allegations are that S. H. O. Buxapur set out in search of some accused persons who were involved in a case under section 307, P. P. C. He came to meet one Shahzado a jeep driver. The said Shahzado informed the police officer that the present petitioner had made a statement in the following terms : "The present Government has created harassment. It is the Government of people and the rich. The poor do not get right. The poor should not be happy that they would get land in Land Reform Scheme. The lands which have been surrendered are depressions and sand-dunes with salvity.
Inshallah our time will come when we all haris together create havoc for the Government.
' The present Government is a fraud and there is a injustice with us. I have been telling the poor haris and shall continue to tell them that they should make sacrifice for achieving their rights and not be afraid of sacrifice and jails and I would help them."
5. On a reading of the statement I find that it is more in the nature of a complaint in regard to the distribution of land and it contains a grievance that the Land Reforms have not brought any relief to the haris. Further the statement is in the nature of an exhortation to the hariw to make sacrifice for achievement of their rights. Such statement does not tend to attract rule 42 of the Defence of Pakistan Rules because even the Government is trying to alleviate the lot of haris. There is no excitement nor invitation to violence or contempt of the Government and all that is said is that the present Government was a- Government of rich people. Without expressing any definite conclusion as to the import of such statement I am of the view that rule 42 of the Defence of Pakistan Rules may not be attracted to a case of this nature. I had asked the learned Assistant Advocate-General if he had any further evidence in this regard but he has not pointed out anything more than what is contained in the first information report itself and it has been reproduced by me above. I must however say that this finding is purely of a tentative nature which shall not bind the trial Court and it shall be open to Trial Court to arrive at its own conclusions after the evidence is recorded. I am also informed that though the applicant was arrested on 23rd June, the case has not yet proceeded.
6. Regard being had to all the circumstances of the case I direct that the petitioner shall be released on bail in the sum of Rs, 10,000 with one surety and P. R. Bond in the like amount to the satisfaction of the trial Court.