' M. JAVLD BUTTUR, J.--- This order shall dispose of Criminal Miscellaneous No,4594-B of 2000, 4590- B of 2000, 4591-B of 2000 and 4671-B of 2000 as all the petitioners in these petitions, namely, Tehmina Daultana, Khawaja Ahmed Hassan, Khawaja Saad Rafique and Makhdoom Javed Hashmi, are seeking post-arrest bail in same case F.I.R. No,94 of 2000, dated 24-3-2000, registered at Police Station Race Course, Lahore, for the offences under sections 124-A, 188, 149, P.P.C. Read with section 16 of the Maintenance of Public Order Ordinance, 1960, at the instance of complainant, Mirza Arif Rashid, Inspector/S.H.O. Of the Police Station Race Course, Lahore, for an occurrence, dated 23-3- 2000.
2. The prosecution story, in brief, is that on 23-3-2000, the complainant was present at Muslim League House, Devis Road, Lahore, where Pakistan Muslim League (Nawaz Group) was holding a public meeting in connection with Pakistan Day, after having obtained permission from the District Magistrate for holding such a meeting. It is alleged in the F.I.R. That the permission was granted for holding the public meeting under the roof but the public meeting was held in the compound of the Muslim League House and Muhammad Aish, S.-I., Muhammad Akbar, Muhammad Ashraf, and Muhammad Yasin, Foot-Constables, were also on duty alongwith the complainant. It is further alleged that the people had started gathering from 9/10 a.m. Ramzan Bhatti, Khawaja Saad Rafique (one of the petitioners), Naeem Chatha, Rana Nazir, Khawaja Raiz Mahmood, Akhtar Rasool and Haji Abdul Razzaq were looking after the management of the stage and other affairs of the public meeting which was presided over by ex-M.N.A. Raja Zafar-ul-Haq, the meeting started at about 2-45 p.m. And the office-bearers, namely, S.A. Hamid, Safdar Jat, Mian Rashid, Arif Sandheela, Naeem Chatha, Rai Mansab, Khawaja Saad Rafiqure, Qasier Amin Butt, Rana Nazir, Tehmina Daultana, Maimoona Shaheen, Raja Humayan, Javad Hashmi and Sh. Rashid delivered speeches. The complainant has also alleged that these office-bearers delivered hateful and provocative speeches against military rules, General Pervaiz Musharaf and General Nasir, instigated people to spread hatred against Government and hurled abuses and also raised slogans to the effect that present regime had committed an act of rebellion by removing a Constitutional regime. The F.I.R. Also narrates that during the meeting, Messrs Bodi Pehalwan and Nadeem Pehalwan etc. Kept on raising slogans against the Government and that the complainant had been observing and, in his opinion, the accused mentioned above, the party workers and the participants of the public meeting by spreading hate against Government, by inciting people against the Government and by hateful and provocative speeches had committed offences as mentioned above.
3. The petitioners, Khawaja Ahmed Hassan and Khawaja Saad Rafique were arrested on 10-7-2000, petitioner Tehmina Daultana was arrested on 19-7-2000 and petitioner Makhdoom Javed Hashmi was arrested on 20-7-2000. The investigation, as yet is not complete as, according tc the Additional Advocate-General, Punjab, some of the co-accused have not been arrested so far and proceedings under sections 87 and 88, Cr.P.C. Have been initiated against them. The petitioners' application for the grant of post-arrest bail has been dismissed by the Judge Special Court, Suppression of Terrorist Activities/Additional Sessions Judge, Lahore an 4-8-2000. It may also be mentioned here that the offence of section 124-A, P.P.C. Was deleted by the Investigating Officer on 6-7-2000 and the same was again added by the D.S.P./S.D.P.O., Race Course, Lahore, vide case diary No,17, dated 13-7-2000.
4. I have heard the learned counsel for the petitioners, the learned Additional Advocate-General, Punjab, representing the State and have also seen the record.
5. It is contended by the learned counsel for the petitioners that section 196, Cr.P.C. Provides that no Court can take cognizance of any offence punishable under Chapter VI of the Pakistan Penal Code unless upon a complaint made by order of, or under authority from the Central Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments and, therefore, the registration of a criminal case by an ordinary police official involving the petitioners under section 124-A, P.P.C. Is without jurisdiction because it is neither a complaint made by order of, or under the authority from the Central Government or the Government of Punjab nor by some officer especially empowered in this regard by either of these two Governments and, therefore, the F.I.R. Itself is liable to be quashed, which makes it a fit case for the grant of bail to the petitioners. Reliance in this regard has been placed on Muhammad Ishaq and others v. The State 1988 PCr.LJ 992, Naveed Ahmad Khan, Advocate and 6 others v. Station House Officer, Ranala Khurd 1994 PCr.LJ 2381, Abul Fatah and others v. The State 1990 MLD 1087 and Maulana Dost Muhammad v. The State 1976 PCr.LJ 184. In all these judgments of Karachi High Court and Lahore High Court, it has been held that embargo under section 196, Cr.P.C. Is very much applicable for trial of offence under section 124-A, P.P.C. Which falls under Chapter VI of Pakistan Penal Code and taking of cognizance by the Trial Court where the case is registered against accused under section 124-A, P.P.C. Without authority of Central Government or Provincial Government or of some officer empowered in this behalf is illegal and void. In Naveed Ahmad Khan, Advocate and others v. The S.H.O., Renala Khurd (supra), the learned Single Judge of this Court, has held that proceedings for prosecution under section 124-A, P.P.C. Being entertainable only upon the complaint, the registration of F.I.R. On the basis of a police report militated against the definition of "complaint" as provided by section 4(1)(h), Cr.P.C. Which clearly excluded the report of a Police Officer and the offence under section 124-A, P.P.C. Being non-cognizable, the S.H.O of Police State could not have recorded the F.I.R. And the F.I.R. To such extent was illegal. Similarly in Maulana Dost Muhammad v. The State (supra) it has been held that section 124-A, P.P.C. Being a non-cognizable offence the investigation cannot be conducted by a police officer. Further, reliance has been placed on Zafar Ali and 7 others v. The State 1969 PCr.LJ 120. An order of Trial Court remanding the petitioner to jail custody was held to be without jurisdiction because the petitioner had been challaned for offence under section 124-A, P.P.C. And in the absence of any complaint by the Central or Provincial Government as required under section 196, Cr.P.C. The Trial Court could not have taken cognizance of offence and the petition for the grant of bail, under the circumstances, was accepted and the petitioners were granted bail.
6. It is submitted next that the petitioners were merely participating or holding a public meeting in connection with the Pakistan Day on 23rd March, 2000 with the permission of the District Administration within the bounds of Muslim League House and had not committed sedition by any stretch of imagination and that mere criticism of Government by political leaders in a political meeting of an ousted political party cannot amount to sedition within the meaning of section 124- A, P.P.C. It is further submitted that the Explanation 2 to section 124-A. P.P.C. Also clarifies that even severe comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or, disaffection, do not constitute an offence under this section. It has been argued that it is nobody's case that something wild or dangerous resulted from the public speeches or from the holding of said public meeting and in fact no untoward incident took place and ventilating of the feelings by the ousted political leaders in a meeting held by them inside the office of their political party is not sedition.
7. It is submitted next that F.I.R. Is vague and contains merely the opinion of the complainant as the speeches or seditious parts of the speeches have not been reproduced in the F.I.R. And, therefore, for the purposes of the grant of bail it is a case of further enquiry. It is argued that the intention of the speaker has to be inferred from carefully reading the speech as a whole and the effect which it created on the audience and both these details are not available. Reliance in this regard is placed on Masihur Rehman v. The State 1971 DLC 750 wherein it was held that "intention of the speaker has to be inferred from reading the speech as a whole and the true import of the words used, has to be gathered from the context and the effect they are intended or likely to produce on the audience.
Speakers while addressing people from political platforms cannot usually resist the tendency to play to the gallery. They persuade themselves to believe that they and their party alone echo the voice of the silent multitude and others, including the Authorities, are all villains, who must be lashed with all diatribes. In an atmosphere surcharged with emotion, vituperative words and colourful phrases dart out in profusion, which seldom reach the head but most of them get straight into the heart and are lost there. Such utterances by repetitions lose their edge and have little effect on the people, though at times people may respond to them by according momentary applause. In construing a speech or a writing to determine whether it contains words which are seditious the Court has to consider the speech or writing as a whole in fair, free and liberal spirit,' with reference to context and the circumstances and environments in which it was spoken or written. Needless to say that circumstances and environments have changed since the incorporation of section 124-A in the Penal Code and they are changing fast. In modem times the State is conceived as an instrument for the advancement of the well being of the people and 'Government' is the vehicle through which the State carries its beneficial activities. If a Government for the time being holding the reins, fails to respond effectively to the needs and aspirations of the people, it must be prepared for onslaughts by the people through their representatives." The author of this judgment further held that the notion of sedition has changed with the passage of time and in applying the law of sedition the superior Courts of the Indo-Pak Sub-continents have leaned towards construing an alleged offending speech or writing in conformity with the spirit of the times with due regard to the evaluation brought about by the rise in literacy and growth of political consciousness of the people and in their ability a discern between appeal to emotion and appeal to reason. The learned Judge also referred to a passage written by Gwyer, C.J., in Nihtorendu Dutt Majumdar v. Emperor AIR 1942 FC 22, Gwyer, C.J. Held that "the time is long past when the mere criticism of Government was sufficient to constitute sedition, for it is recognised that the fight to utter honest and reasonable criticism is a source of strength for a community rather than a weakness," Abdullah Jabir, J. After referring to above passage of Gwyer, C.J. In Masihur Rehman v.
The State (supra) observed that "momentous changes have taken place since those observations were made in 1942 and they apply now with greater force." Abdullah Jabir, J. Made this observation in 1970 and one can safely hold that the observations made by Gwyer, C.J., are applicable now in the year 2000 with still greater force. I may also quote here Hamood-ur-Rehman, J. (as he then was) who while delivering judgment of a Full Bench of Dacca High Court in Sangbad v. Province of East Pakistan PLD 1958 Dacca 324 while considering the offence of "sedition" held that "In construing offending article we must read it as a whole in a fair, free and liberal manner and not in a narrow- minded or sectarian way, nor are we to pick out isolated word or sentences from one or the other place of the said article or publication." Learned counsel for the petitioners have also referred to Muhammad Inamullah Khan v. The State PLD 1977 Lah. 1279, to contend that mere criticism of actions and politics of Government even though harsh in language does not attract definition of "sedition".
8. It was, however, added by the learned Judges of the Division Bench of this Court, in this judgment, that "unless there was refusal to recognize the Government established by law or a call to rebel against such Government or to resort to unconstitutional methods by use of force so as to disturb the police peace or to disrupt the maintenance of essential supplies." The Honourable Judges also noted that the view taken by Sir Maurais Gwyer, C.J., in Niharendu Dutt Majundar v.
Emperor (supra) that "the acts or words complained of must either induce disorder or must be such as to satisfy reasonable men that is their intention or tendency" was not approved by the Judicial Committee of the Privy Council in Emperor v. Sudhashiv Naravam PLD 1947 PC 32, wherein it was held that the language of section 124-A, or the Defence of India Rules did not justify the statement of the law as made by the learned Chief Justice and that the expression "Excited disaffection" did not include "excited disorder" and their Lordships of the Privy Council, in this regard, followed the line taken by them in Gangadhar Tilka case ILR 22 Born. 112 wherein they had approved the following observations made by Strachey, J.:-- ' "It is not the exciting or attempt to excite mutiny or rebellion or any sort of actual disturbance, great or small. Whether any disturbance, or outbreak was caused by these articles, is absolutely immaterial."
9. In regard to the punishment as provided in section 124-A, P.P.C., it is argued that two types of punishments are provided in this section, one for imprisonment for life and the other for imprisonment which may extend to three years and to both of them the fine may be added and it is ultimately, the Court which is to form an opinion after considering the material to be brought on record in evidence whether in the circumstances it would be a case punishable with imprisonment of three years or life. Reliance has been placed on Zahid Malik v. The State 1990 PLJ 1310 (Lahore) to contend that prima facie the case under section 124-A, P.P.C. Is of further enquiry and at bail stage it cannot be definitely held that the case against the petitioners falls within the prohibitory clause of section 497, Cr.P.C.
10. In the end, it has been submitted that the petitioners are responsible senior politicians and have been Federal Ministers and Senators etc. And the criticism of Government was political in nature and not seditious and that the petitioner, Tehmina Daultana being a female is entitled to the grant of bail on this ground also.
11. Mr. Ijaz Ahmad Chaudhry, Additional Adovcate-General while opposing the petition has submitted that the arguments advanced by Sardar Muhammad Latif Khan Khosa, Advocate, that in view of the provisions of section 196, Cr.P.C., a police official not having been especially empowered in this regard, could not competently register a criminal case against the petitioners for the offence under section 124-A, P.P.C., has no force and has maintained that the provision of section 196, Cr.P.C., is not applicable to the proceedings before the Special Court established under the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 and the provisions of Act, 1975 being special law will supersede the provisions of general law and the cases cited by the learned counsel for the petitioners were not relevant as those relate to the general law. In this regard it is argued that the general law stands modified by Act of 1975 whereby the exclusive jurisdiction has been conferred on Special Courts constituted under section 4 of the Act of 1975 to try the scheduled offences notwithstanding anything contained in the Code of Criminal Procedure and section 124-A, P.P.C. Is a scheduled offence and under section 5 of the Act of 1975 the Special Court has been conferred with the jurisdiction to take cognizance on police report only. He has further contended that the provisions of section 10 of the Act of 1975 override the provisions of Criminal Procedure Code and, therefore, the clog of section 196, Cr.P.C. Being in conflict with the provisions of section 5 of the Act of 1975 is not applicable to the present case and the petitioners cannot plead that the clog has not been removed. Reliance in this regard has been placed on Mian Nawaz Sharif and others v. The State 2000 MLD 946 (Karachi), wherein while considering the provisions of Anti-Terrorism Act, 1997, it was held that cases registered against accused being triable by Special Court established under the provisions of Anti-Terrorism Act, 1997 provisions of section 196, Cr.P.C. Which pertained to the general law, would not be applicable to proceedings before Special Court because the Act which was a special law had overriding effect notwithstanding anything contained in Criminal Procedure Code, 1898 or any other law and bar contained in section 196, Cr.P.C. Would not in any way affect the taking of cognizance by the Special Court. We agree with the contentions of the learned Additional Advocate-General, Punjab.
Suppression of Terrorist Activities Act, 1975 is a special law and overrides anything contained in the Criminal Procedure Code or in any other law and section 5 of the said Act provides that the Special Court constituted under this Act shall take cognizance of a report forwarded to it directly by the Officer In-charge of the Police Station under section 173 of the Code of Criminal Procedure and, therefore, the clog of section 196, Cr.P.C. Is not applicable to the cases in which the Special Court constituted under the Act of 1975 has taken cognizance. In Muhammad Sharif v. The State 1992 PCr.LJ 127 a Division Bench of this Court ruled that the application of any provision of the Code of Criminal Procedure is excluded where the provision of a special or local law or any special jurisdiction or power conferred on any special forum or procedure prescribed therein provides otherwise.
12. Learned Additional Advocate-General while opposing the present petitions on merits has submitted that the offence of section 124-A, P.P.C. Is punishable with imprisonment for life and the same falls within the prohibitory clause of section 497, Cr.P.C. And there are reasonable grounds to believe that the petitioners have committed the offences as alleged against them and, therefore, the bail cannot be granted to them as a matter of rule. It is further submitted that the petitioners have not denied the allegations levelled against them and have not denied the fact of having delivered speeches in that public meeting, therefore, their cases are not covered under section 497(2), Cr.P.C. In answer to a Court query, learned Additional Advocate-General has informed that the petitioner Khawaja Ahmad Hassan has been nominated as an accused through supplementary statement, dated 9-6-2000 and this supplementary statement gives the number of the persons in attendance of the abovesaid public meeting as ninety (90). It is argued next that besides the F.I.R. And the statements of the P.Ws mentioned in the F 1.R., material in the shape of a diary containing the proceedings of the public meeting, maintained by Special Branch of Punjab Police, recorded by Muhammad Afzal, Constable is also available on record, which shows the involvement of the petitioners in the offences as alleged against them and the perusal of this diary shows that the petitioners delivered seditious speeches. It may also be mentioned here that the statement of Muhammad Afzal, Constable under section 161, Cr.P.C. Was recorded on 9-6-2000.
Learned Additional Advocate-General while referring to this diary did not read any portion of it in Court but as the same is part of record of present case. It has been perused by us. Learned Additional Advocate-General has also placed reliance on The State v. Sardar Attaullah Khan Mangal PLD 1967 SC 78, wherein it has been held that the truth or falsity of fact referred to in the speeches or the offending article are not relevant for the purposes of deciding whether the offence of section 124-A, P.P.C. Has been committed or not. Further reliance has been placed on Mian Tufail Muhammad v. The State PLJ 1973 Lah. 68 wherein a learned Single Judge of this Court dismissed the petition for the grant of bail of Mian Tufail Muhammad, the then Amir Jamat-i-Islami, on the grounds that the overall effect of the whole of the speech delivered by Mian Tufail Muhammad in a public meeting held outside Mochi Gate, Lahore, on 18-2-1973 was that it made the Government responsible for all evils which were prevalent in the country and it purported to create hatred, contempt and disaffection against the Government of the day in various manners and as such prima facie there did exist reasonable grounds for believing that the petitioner was guilty of an offence under section 124-A, P.P.C. Which was punishable with transportation for life. The learned Judge, however, held that whether the words are seditious or not, is to be determined by the Judge and is not to be left to the judgment of the witnesses.
13. The petitioners being leaders of Pakistan Muslim League (Nawaz Group), held an indoor meeting on 23-3-2000 in connection with Pakistan Day and are alleged to have delivered seditious speeches in front of a gathering of approximately (90) persons, which has been termed as a public meeting by the complainant. Before holding this meeting, the organizers obtained due permission from the District Magistrate and the authorities thus, knew before hand that the Government was going to be criticized in the said meeting as the meeting was-being organized by a political party which had been recently ousted from power and it is nobody's case that the Government was expecting its praises in the said meeting or that no speeches were going to be delivered in the said meeting. The F.I.R. Discloses that in the opinion of the complainant, the speeches were seditious in nature within the meaning of section 124-A, P.P.C. The F.I.R. Does not contain either whole text or the salient features of the speeches delivered by the speakers or the petitioners. It thus, shows that it is merely subjective opinion of the complainant lacking the objective criteria. It is thus, a case of further inquiry. It is for the Court to determine as to whether the words spoken by the petitioners were seditious or not and cannot be left to the judgment of the witnesses as held by this Court in Mian Tufail Muhammad v. The State - (supra). The prosecution itself has remained under confusion in this regard.
' The was originally registered under section 124-A, P.P.C. Alongwith other offences. The offence of section 124-A, P.P.C. Was thereafter deleted by the Investigating Officer on 6-7-2000 and it was again added by D.S.P./S.D.P.O., Race Course, Lahore, on 13-7-2000. This also shows that it is a case of further enquiry. The gist of case law discussed above shows that while coming to a conclusion as to whether the speeches are seditious or not, the intention of the speaker has to be inferred from reading the speech as a whole and the true import of the words used, has to be gathered from the context and the effect they are intended or likely to produce on the audience although the truthfulness or falsity of the allegations levelled by the speakers is not relevant and similarly whether the speeches excited-disorder or not is also not relevant for determining the guilt of accused under section 124-A, P.P.C. Mashiur Rehman v. The State (supra) and Emperor V. Sidhashiv Narain (supra) may be referred in this regard. It has also been held repeatedly, by the superior Courts of this country, including in the judgments discussed in this order that the Court has to consider such speeches in fair, free and liberal spirit and not in a narrow-minded or sectarian way nor are we to pick out isolated words or sentences as held by Hamood-ur-Rehman, J. (as he then was) in Sanghad v. The Province of East Pakistan (supra). Furthermore, mere criticism of actions and policies of Government, even though harsh in nature does not attract definition of "sedition" as elaborated in Muhammad Inamullah Khan v. The State (supra). Whether there was a refusal to recognize the Government established by law or a call to rebel against such Government or to resort to un-Constitutional methods by use of force so as to disturb the public peace or to disrupt the maintenance of essential supplies, is yet to be determined through evidence by the Trial Court.
It may be added here that the complainant has not levelled any such allegations against the petitioners in the F.I.R. The contentions of the learned Additional Advocate-General that the offence of section 124-A, P.P.0 is punishable with imprisonment for life and as the same falls within the prohibitory clause of section 497, Cr.P.C., therefore, the bail cannot be granted to the petitioners as a matter of rule, has no force. Section 124-A P.P.C. Provides two types of punishments, one for imprisonment for life and the other for imprisonment which may extend tp 3 years. The second part of the punishment provided in section 124-A, P.P.C., as mentioned above, does not fall within the prohibitory clause of section 497, Cr.P.C., and ultimately it is for the Trial Court to form an opinion after considering the entire material to be brought on record in evidence by the prosecution whether in the circumstances it would be a case for punishment of three years or life and at the bail stage this Court cannot determine that the petitioners are most probably going to be awarded the sentence of life imprisonment and not upto 3 years as provided in law. Even otherwise, we have already held that it is a case of further enquiry.
14. The Additional Advocate-General has made a passing reference to the diary maintained by the Special Branch of Punjab Police, recorded by Muhammad Afzal, Constable. The learned Additional Advocate-General did not read any portion of it in Court and the offending speeches or the offending portions of the speeches, allegedly reproduced in the said diary were not read in Court nor argued and it was left to the Court to peruse diary. We have perused the same. We do not want to make any comment on the contents of the diary as the same were not referred to or argued by the prosecution before us and even otherwise the detailed analysis of its contents at the stage of hearing of bail petitions is unwarranted as such an exercise, in our opinion, may lead to the prejudice of the case of either party. Suffice it to say that the diary does not contain the whole text of the speeches.
15. In view the abovementioned, the applications are allowed and the petitioners are granted bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 each, with one surety, each in the like amount, to the satisfaction of the Deputy Registrar (Judi.) of this Court.