' The appellant has been convicted by the Special Tribunal, Sind, Karachi for offences under clause 6 (e) dt (g) of rule 42 of Defence of Pakistan Rules punishable under rule 49, for having, by speeches and conduct, brought into hatred and contempt and axcited dissatisfaction towards the Government of Pakistan and for having promoted feelings of enmity and hatred between different classes of the citizens of Pakistan, and he has been sentenced to R. I. For 2 years on each count, the sentences to run concurrently.
2. The brief facts as gathered from the record culminating in this trial appear to be as under.
3. Appellant Kannayalal Gurbakhshani was appointed as a middle school teacher in Sind Education Department. He belonged to Larkana and was a next door neighbor of one Muhammad Abuzar Siddiqui, District Education Officer. Mr. Kannayalal was first posted at Middle School, Mirpur Bathoro from where he was transferred to Government Middle School, Garhi Khairo in 1969. One Mr. Ali Muhammad was headmaster of that school at that time. He a as told by Mr. Abuzar, District Inspector of Schools to keep a watch over appellant Kannayalal as he was an atheist and a foreign agent. Mr. Ali Muhammad headmaster was, however, satisfied with the work and conduct and his general activities. According to him his work was found to be excellent in 1969 70 at the annual inspection of the school District Inspector of Schools Mr. Abuzar and the accused had exchanged certain harsh words. After the appellant, Mr. Kannayalal obtained M. A. Degree he was recommended for higher scale by his headmaster but Mr. Abuzar had rejected the proposal. From Garhi Khairo Kannayalal was transferred to Warah and from Warah he was posted at Kandkot on 8-6-1972. At that time Mr. Abuzar Siddiqui was District Education Officer for Jacobabad District. Mr. Abdul Wajid the then headmaster at Kandkot, due to certain advance information conveyed to him, declined to allow Mr. Kannayalal to resume duty as the copy of the transfer order bad not been received by him yet. Mr. Kannayalal was also not allowed to stay in the hostel until he could find some other accommodation. In November 1972, S. D. M., Kandkot visited Government High School and Headmaster Abdul Wajid informed him about the anti-State activities of Kannayalal as being Pro-Siudhu Dash Movement. On 1.11-1972 appellant Kannayalal sent his complaint against Mr. Abdul Wajid Headmaster, Government High School, Kandkot to the Director of Education and this complaint was given by appellant Kannayalal to the Headmaster himself for being forwarded to the Director. Then in January 1973 Mr. Abdul Razzak took over as Headmaster. Mr. Abdul Wajid informed him that Kannayalal was a disruptions' and his activities required to be watched. On 23- 2-1973, 24 teachers of the Government High School, Kandkot held a meeting and passed a resolution against Headmaster Mr. Abdur Razzak regarding his improper behaviour with his subordinates. It was resolved that a committee comprising of 5 school teachers should meet the headmaster and inform him regarding these complaints and ask him for better treatment. Mr. Kannayalal, who had signed this resolution last in the minute book, appeared to be the person who had engineered this resolution. Mr. Kannayalal was also a member of the Government Secondary Teachers' Association, Jacobabad. In February 1973 he had been elected on the Action Committee of the Government Secondary Teachers' Association for organizing the strike and boycotting classes etc. From 5th March to 7th March a taken-strike had been launched. It was the general impression that the appellant was provocation the students to help the teachers in making their strike a success. Some information had reached the headmaster that the appellant was associated with 'Jeaye Sind' Movement. A letter had been received from one Hakim Ohaffar addressed to Kannayalal which had been intercepted by one of the school teachers. This letter had started with the salutation "Jeeaye Sind". Headmaster Abdur Razzak accordingly wrote a D.
0. Letter to District Education Officer Mr. Abuzar for transfer of appellant Kannayalal from Government High School, Kandkot and he was therefore transferred from Kandkhot and posted on deputation at Bakhshapur Government High School 18 miles away on 16-3-1973. On 29th March 1973 Mr. Abdur Razzak wrote another D.
0. Letter to Mr. Muhammad Abuzar Siddiqui, D. E. 0 , Jacobabad, that Mr. Kannayalal daily came back from Bakhshapur and continued his intrigues and disruptive activities ; that he might, therefore, be transferred to some distant place. At the suggestion of S. D. M., Kandkot Mr. Muhammad Abu Zar Siddiqui sent a written report dated 24-5-1973 to Superintendent of Police, Jacobabad stating that Messrs Kannayalal and Gobindram were shifted from Government High School, Kandkot and deputed to Government High School, Bakhshapur and Kashmore respectively as they were reported to have created law and order situation during the days of strike by secondary school teachers in the month of March ; that the headmaster had then informed him on telephone that both the teachers in league with some other teachers of the school were trying to instigate the students in order to disturb the atmosphere of the school-specially Mr. Kannayalal who was taking the leading part. The Superintendent of Police was accordingly requested to take suitable action against the ring leader Mr. Kannayalal. Thereafter on 25-5-1973 in charge S. H.
0., Bakhshapur registered the F. I. R. Against appellant Kannayalal. For the first time it was stated in this report that the appellant had been coming from Bakhshapur to Kandkot for anti-Government propaganda being associated with lee-aye Sind' front of G M. Syed. That he was making speeches against the Pakistan People's Party Government and he was preaching disaffection between Sindhis and Mohajirs. This F. I. R. Was registered for offences under section 42 (e) (g) (h) & (f) read with section 49 of Defence of Pakistan Rules. Deputy Commissioner, Jacobabad granted sanction for prosecution of Kannayalal for these offences by his letter dated 1-6-1973. The appellant was then sent up in the Court of District Magistrate. Jacobabad on 4-6-1973. The appellant remained in custody and Mr. Abdur Razzak was the first witness to be examined on 18-12-1973. A notification was than issued by the Government of Pakistan, Cabinet Division dated 28th December 1973 under section 9 of the Defence of Pakistan Ordinance, directing the transfer of this case for trial before the Special Tribunal constituted for the Province of Sind under section 8 of the said Ordinance. The case then proceeded before the tribunal consisting of 3 members and after concluding the trial, the tribunal by judgment dated 18-2-1976 convicted and sentenced the accused as mentioned above.
4. The charge framed against the appellant by the special Tribunal is, that during the period from February to May 1973 the appellant by speeches and conduct at Kandkot brought into hatred and excited disaffection towards the Government establishsd by law and promoted feelings of enmity and hatred between different classes of citizens of Pakistan and thereby committed offences punishable under rule 42, clause (6) (e) & (g) of the Defense of Pakistan Rules. None of these allegations were mentioned in the D.
0. Letters written by headmaster to the District Education Officer, Jacobabad. The report dated 24- 5-1973 sent by the D. E.
0. To Superintendent of Police, Jacobabad also did not mention any allegations disclosing the offences mentioned in the charge. All that had been said in the report was that he wa3 engaged in disruptive activities and trying to disturb the atmosphere of the school. The charge shows the place of offence as Kandkot while during the relevant period Kannayalal was posted at Bakhshapur. The ease actually registered by the police on the basis of this letter is, however, entirely different. This case was registered, as already stated, at Bakhshapur Police Station and not at Kandkot. The F. I. R. Contained allegations which were entirely different from the letter of the District Education Officer and for which there was no material. The alleged incident forming the subject-matter of the F. I. R. Was shown in the report to have occurred from 16-3-1973 to 25-5-1973.
5. Regarding the alleged speeches and conduct constituting the above offences, the evidence recorded, consists of the depositions of (1) Abdur Razzak Headmaster, (2) Ghulam Rasool 1st Assistant, (3) Mr. Muhammad Abu Zar Siddiqui, D. E. 0 , (4) Mr. Abdul Wahid Headmaster, (5) Mr. Ghulam Rasool Constable No, 711 of Kandkot, and (6) Mr. Muhammad Umar. Investigating Officer, A.
S. I., Bakhshapur. The prosecution has then closed the side and the appellant led the evidence of four defence witnesses including headmaster All Muhammad, &h.
13.
6. It is remarkable that none of the prosecution witnesses except the Pollee Constable has specifically deposed in respect of any alleged speech or act which could be attributed to the appellant and which would make him liable for any substantive offence under the respective clauses of the Defence of Pakistan Rules contained in the charge. The evidence of Mr. Abdur Razzak would show that his predecessor had warned him that Kannayalal was a disruptions'. This would, however, be a matter of opinion and it was not even known what the predecessor meant by using the term. He has then alleged that at Kandkot the appellant used to tell the boys that this was a 'Zalmana Government' or that the Sindhis and Mohajirs could not be brothers and so on. The witness has not stated whether on any particular day the appellant made any speech either in his class or at some meeting addressing the children and whether any report of his speech was taken down. None of the students to whom the speech was supposed to have been made has been examined as a witness. Mr. Abdnr Razzak does not say that he was present or he heard the appellant making such a speech, nor does any such speech made at Kandkot form the basis of the charge. The evidence of Mr. Abdur Razzak consists of vague allegations for which Mr. Abdur Razzak has not been able to show any basis. Obviously Mr. Abdur Razzak had a grudge against the appellant as he and other teachers had passed a resolution against him alleging that his treatment with the teachers was most unfair. He had accordingly been asking for the transfer of Kannayalal whom he considered as an intriguer and wanted to get rid of him. Mr. Abdur Razzak has then produced a letter written in Sindhi by one Abdul Ghaffar who was by profession a Hakeem There is nothing in the letter excepting the opening words Jee-aye Sin That would, however, show that de writer of that letter had used the term Jee kis Sind, but it would not suggest that the person to whom the letter was addressed had belonged to the same school of thought. The letters written by the headmaster to the District Education Officer, Jacobabad do not contain any specific allegation pertaining to the two charges for which the appellant was subsequently prosecuted. All that had been shown against the appellant was about the intrigues and acts of instigation.
Afterwartts when Kannayalal was taken up as a member of the Secmdary School Teachers'
Association on the Coordination Committee he was considered to be an undesirable element in the school.
7. The next witness Ghulam Rasool is an assistant teacher of Government High School, Kandkot. He has also deposed in general terms that the appellant had association with lee-aye Sind'
Movement. That he came to know this through the students but ho bas not named any of the students who told him about the activities of the appellant nor has any such student been examined.
8. Then there is evidence of Muhammad Abu Zar Siddiqui that Abdur Razzak had informed him on telephone that some teachers under the leadership of Mr. Kannayalal were instigating the students of the school to go on strike and to bring into momentum 'Jee-aye Sind' Tehrik. He has then stated that Kannayalal was a Communist and had no faith in God and was working against Islam. All these allegations, however, do not bring the case within the purvie w of the offences under the Defence of Pakistan Rules. He has then stated that he sent a report to the Superintendent of Police, Jacobabad regarding the activities of Kannayalal. This report as already described above does not contain any specific allegations regarding commission of offences mentioned is the particular clauses forming subject-matter of the present charge.
9. P. W. Abdul Wahid Headmaster is the next witness. He too has admitted that the appellant had sent his complaint against him to the Director and the same had been handed over to him for being forwarded to the Director on 1-11-1972. Under these circumstances Mr. Abdul Wahld had considered the appellant to be a mischievous person and he accordingly spoke against him to his officers.
10. The evidence of Police Constable Ghulam Rasool appears on the face of it to be false and absurd. He has stated that on 11.5-1973 while ho was going in a bus the appellant was talking loudly to passengers sitting in the bus asking them to join 'Jee-aye Sind' Movement.
11. The last witness, A. S. I. Muhammad Umar had hardly anything to add to what the other witnesses have said. The A. S. I. Has admitted that from 16-3-1973 to 25-5-1973 the period mentioned in the charge, he had no other reports against the accused except the one made by Constable Ghulam Rasool. That he had not examined any teacher or student of Bakhshapur High School before challenging the appellant for- these offences. Ordinarily when the activities of a person are suspected to be anti-State activities, a close watch is kept by the local intelligence and the C. I. D. Over the person and his record is maintained at the Police Station. In the present case the police had no information about the anti-State activities of the appellant who was a Hindu and no such evidence has been brought on record in the present case against him. The entire evidence consists of the vague allegations of the two bead masters and the District Education Officer Mr. Muhammad Abu Zar who were against this teacher from the very beginning and who had no liking for him because he was outspoken and was frank and fearless. We are, however, told by Mr. Ali Muhammad Headmaster that his work as teacher was excellent and in spite of the warnings which he had received from Mr. Abu Zar he had given him best confidential remarks.
12. This the entire evidence against the appellant boils down to nothing. It is vague and hearsay evidence and is not based on any material facts. In fact the entire evidence is inadmissible. Even for offences under the D. P. R. The evidence must be recorded in accordance with the principles laid down in the Evidence Act. For instance, if reliance is placed on oral evidence it must be direct and if it refers to a fact which could be seen, it must be evidence of a witness who says he saw it and if it refers to a fact which could be heard it must be the evidence of a witness who says he heard it. If it refers to an opinion then the person holding that opinion must state his grounds on which such opinion is held. In the present case these witnesses have neither seen anything nor have they heard anything themselves and they have relied on the vague allegations made by some students whom they cannot name and who could not be brought in support of these allegations. The appellant has been condemned as a communist ; as an atheist, as an agent and so on out none of the witnesses have been able to suggest the reasons for holding such opinion. The case was registered at Bakhshapur but the offence is alleged to have taken place at Kandkot and the time and place of the commission of the offence have been left vague and indefinite. Before the F. I. R.
Was registered there was no basis even for making such allegations.
13. Mr. Usman Ghani Rashid, Assistant Advocate-General frankly concedes that on the evidence recorded in this case, none of the offences stated in the charge have been sufficiently established against the appellant. He also agrees, that this type of evidence of general repute is too vague and cannot be considered as relevant for the purpose of proving a substantive offence against the appellant.
14. Mr. Nasiruddin has then argued that the proceedings and the trial of the appellant had been vitiated due to transfer of the case from the file of the District Magistrate to the Special Tribunal, in violation of Article 25 of the Constitution. This Article which was based on Article 29 of the Interim Constitution provides that all citizens are equal before law and are entitled to equal protection of law. Mr. Nasiruddin has argued that this was a case of discrimination and the case was withdrawn from the ordinary Courts and sent to Special Court for trial. It is true that Fundamental Rights had been superseded with effect from 13-8-1973. The notification was thereafter issued by Government of Pakistan transferring this case to the Special Tribunal on 28th December 1973. Meanwhile the Fundamental Rights were restored on 14th August 1974. This restoration of Fundamental Rights affected the pending cases, because before the judgment was delivered the prosecution could not be considered as closed. Mr. Nasiruddin has pointed out that this lacuna in the law in violation of Article 25 regarding discrimination, was afterwards rectified by an amendment by Ordinance No, III of 1976. Section 9 of the Defence of Pakistan Ordinance providing that the Government may by general or special order direct that Special Tribunal may try any offence otherwise triable by ordinary Courts was omitted, and all such class of cases thereafter became tribal by Special Tribunals only. Mr. Nasiruddin has referred to the decision of the Supreme Court reported in Syed Abul Alaududi and others v. Pakistan (1). In that case the point considered was that after the restoration of Fundamental Rights the disposed of cases started under the law which contravened the Fundamental Rights, were not affected and the conviction, if any, could not be set aside on that ground because the right had already been taken away and extinguished before the constitutional guarantee became available. But if the right was still subsisting and capable of being enforced and there was something still left to be done to complete the extinction of the right even after the conferment of the Fundamental Rights, then the position would be different. On the same analogy Mr. Nasiruddin had argued that after the restoration of the Fundamental Rights, the proceeding of the trial before the Special Tribunal (1)P D 1964 SC 673 ' suffered from contravention of the right under the Constitution, and this right still subsisted and continued to be infringed.
15. It is not necessary, however, to go into this aspect of the case, since the learned Assistant Advocate-General concedes that on facts the offences under Rule 42 (6) (e) & (g), Defence of Pakistan Rules have not been established. An attempt has been made just to show that the appellant was a mar of shady character and disposition with leanings, towards 'Jae-aye Sind Movement' and he did not have that much respect which was expected of him for the existing Government in Pakistan. But that by itself would not prove any particular act constituting an offence of exciting disaffection towards the Government or promoting feelings of enmity or hatred between different classes of citizens.
16. In the result the conviction and sentence passed against the appellant by the Special Tribunal are setaside and be is acquitted. The appeal is accepted accordingly. The appellant may be set at liberty forthwith if not required in any other case.