FAKHRUDDIN G. EBRAHIM, J.-These are two connected matters challenging the conviction of Mairaj Mohammad Khan, a former Minister of State in Bhutto Government under rule 42, clause 6, sub- Clauses (e) and (g) read with rule 49 of the Defence of Pakistan Rules b7 the Special Tribunal Sind.
As no appeal was provided, a Constitutional Petition wag filed, being Constitutional Petition No. 169 of 1975, but when the amending law gave the petitioner a right of appeal he filed Criminal Appeal No. 198 of 1976.
2. The ordeal of the appellant began on 30-5-1974 when he was arrested at about 1 a. m. By the police following the registration of no less than three cases against him in quick succession at two different Police Stations at Karachi. The story of the appellant's hardship and deprivation did not end until he was on 8-9-1977 released on bail by this Court but what trans--pired in the intervening period should be a matter of deep concern and sorrow for all concerned.
3. The First Information Report, being F. I. R. No. 129 of 1974 which gave birth to the present proceedings was recorded on 3Q-5-1974 and on 18-6-1974 the appellant was challaned before the sub-Divisional Magistrate, Nazimabad for an offence under section 124-A, P. P. C. Read with rules 42 and 49 of the Defence of Pakistan Rules. It was alleged against the appellant that he bad delivered a seditious speech at a May Day rally under the .Auspices of the K. E. S. C. Workers Union on 2nd May, 1974. On 24-6-1974, the Sub-Divisional Magistrate, Nazimbad informed the appellant that four cages ((be last one was registered on 6-6-1974) were bring sent for trial to Hyderabad to be tried by Mr. Ashfaq Ahmed Abbasi. Additional District Magistrate. Hyderabad under Government of Sind Notification dated 2.0-6-1974. Under this notification the said Mr. Ashfaq Ahmed :Abbasi bad Non appointed Additional District Magistrate for Karachi and Hyder--abad with Headquaters at Byderabad. The appellant was taken to Hyderabad and produced before the said Mr. Abbasi, who at once commenced the trial which was made abortive by an application under section 526 (8).
Cr. P. C. Moved on behalf of the appellant. The transfer application moved by the appellant in this Court, however, became infructuous as in the meanwhile Mr. Abbasi was transferred to Karachi, on 24-8-1974, the federal Government in exercise of its powers u0er section 9 of the Defence of Pakistan Ordinance, 1971 Vansfesred the four cases pending against the appellant to the Special Tribunal, Sind. Constituted for the Province of Sind under section 8 of the said Ordinance. The case was to come up for hearing before the Tribunal on 4-9-1974 but on 27-8-'974, the Tribunal requested the Government that arrangements be made for the trial of cases against the appellant in Central Jail, Karachi as there was "likelihood of creating of law and or4er situation at City Courts as the accused is a political figure". The Government by Notification dated 31-8-1974, accorded the sanction for ,the trial of the appellant by the Special Tribunal within the Jail premises at Central Prison, Karachi tinder rule 4 of Chapter 1-A, Volume III of Rules and Orders of the High Court of Judicature at Lahore as applicable to Sind. Between 30-10-1974 and 6-1-1975, the evidence of four prosecution witnesses was recorded by the Tribunal, on 6-1-1975. The Investigating Officer was examined and the case was adjourned to 7th January, 1975. What transpired thereafter is vividly described in paragraphs 11 to 19 of the petition. At the bearing on the 7tb an oral request was made on behalf of the appellant -to allow his friends and relations to attend the trial which wag disallowed. The Special Prosecutor then, it is alleged at the. Instance of the Tribunal made an application under section II of the Defence of Pakistan Ordinance that the trial be held in camera and only the appellant's wife be allowed to attend. This application was granted. The appellant then requested the Tribunal to allow him to state a few points. The Tribunal. Replied that the appellant was represented by counsel and, therefore, there was no need for him to address the Court. The appellant insisted and was allowed to speak. According to him, he was respectful and was heard in silence. He complained that be was kept incommunicedo for three months after his arrest, denied medical treatment, not allowed on open trial, and was a victim of political - victimisation. The appellant walked out in protest against the treatment meted out to him in last 7 months. On the next day the appellant received a notice that the Tribunal bad fixed the case for further trial on the 9th January, 1975.
4. As to what happened on the crucial day, namely, 9th January, 1975 the petitioner alleged as follows :- "17. That on 9th January the counsel for the petitioner and the wife of the petitioner attended the Tribunal in the office of the Superintendent. Central Prison, Karachi. The Tribunal asked the counsel If they would like to proceed. The counsel for the petitioner replied that they would have to have instructions from their client to proceed on that day. The Tribunal agreed with this and observed that they could meet the petitioner in the Deputy Superintendent's office, downstairs. Leaving their books, brief case and files the lawyers of the petitioner and the wife of the petitioner moved into the Deputy Superintendent's room where the petitioner was brought.
18. That after taking instructions the counsel for the petitioner wanted to inform the Tribunal about the list of defence witnesses and sent word to the Tribunal through the Deputy Superintendent who informed that the Tribunal bad asked them to wait for 10 minutes. When after this time the counsel tried to go upstairs to see the Tribunal they were stepped by the constables on duty to proceed up-stairs in the Superintendent's office. The counsel tried three times and were later in fact confined in Deputy Superintendent's office together with the petitioner and his wife. At 12-4.5 p. m.
The Special Prosecutor mined the petitioner his counsel and his wife informing them that he had been asked to withdraw by the Tribunal, till that time, i.e. From 10 p. m. To 12-'15 p. m. He was sitting with the Tribunal in Superinten--dent's Central Prisons Office.
19. That at 2-10 p. m. The petitioner, his wife, his lawyers and special prosecutor were asked to move to the Jail School where the Court was said to hold its session The members of they Tribunal reached there at 2-20 p. m. And straightaway the Chairman, Mr. Barakzai started reading the operative part of the Judgment sentencing petitioner try four yeas' R. I. Just after the delivery of the judgment the counsel for the petitioner protested that they were asked to get instructions from their client and that they were ready with a list of defence witnesses but instead of enquiring from the counsel, the Tribunal had delivered judgment without reacting the charge or allowing peti-- tioner to lead his defence."
5. In the counter- affidavit filed on behalf of the Government of Sind these allegations are not denied but it is stated that the truth or otherwise of the allegations contained in these paragraphs can be verified from the record maintained by the Tribunal. It is significant, however, that the Tribunal who is a party to these proceedings has not chosen to deny these allegations.
Nevertheless the record of the case makes an interesting reading.
6. The record ,bows that at the hearing on 7-1-1975. The defence counsel trade an oral request to the Tribunal that the friend; of the appellant be allowed to see the proceedings. This was disallowed. The Special prosecutor then made a handwritten application under rule 11 for exclusion of the public from proceedings in which the prayer was that :- "for the purpose of recording statement of the accused the proceedings may be held in camera and the public may be excluded during the proceeding the statement of the accused is recorded, except tie wire of the accused as it may jeoparadise public interest for the statement of the accused which is expected to be of a political nature and may be prejudicial for public safety."
Simultaneously an application was also moved on behalf of the accused that his friends and acquaintances be allowed to attend the proceedings on the ground that it was ors accepted principle of law that justice should not only be done but seer to be dote. The Tribunal allowed the prosecution's application and rejected the one made on behalf of the appellant. After the order appears a note by the Tribunal that when the statement of the accused was about to be recorded he stood up and started talking about political matters and his enmity with the political leaders and in spite of warning, his behaviour grew rude and insulting and he started shouting. His Advocates were requested to ask the accused to submit to the proceedings "but they too made statement that they were leaving the Court rend would boycott the proceedings under instructions from the accused'". The note con--cluded by saying that the Advocates withdrew and were followed by the accused while the Court kept sitting and that the accused after leaving the Court room hurriedly withdrew to his Ward in the Jail. On the reverse of this note appears the order made by the Tribunal in which it is stated that the accused and his counsel boycotted the proceedings without any justification and the Tribunal was, therefore, unable to record his statement and the only course open was to proceed further with the trial in his absence as required by section 10(5) of the said Ordinance. The Tribunal then proceeded to frame the charge in the absence of the accused and ordered that further proceedings be carried on in his absence. According to the diary sheet signed by all the three members of the Tribunal, the case was adjourned for "further proceedings" to 9-1-1975. Thereafter, appears the proceedings of 8-1-1975, again signed by ail the three members of the Tribunal that as the accused bad boycotted the proceedings and as the senior member of the Tribunal had to proceed to Khairpur for taking over the charge as District Judge, the case was fixed for decision on 9-1-1975 of which intimation will be given to the accused and his counsel, The notice dated 8th January, 1975 sent to the appellant, however, mentioned that the case was fixed "for further trial" at Central Prison. Karachi on 9-1-1975 at 10-00 a. m. According to the diary sheet of 9-1-1975, the accused and his counsel were present and since "the accused and his counsel have boycotted the proceedings the position remains the same and there is no move from the defence side to join tile proceedings". The Tribunal then proceeded to pronounce the Judgment convicting him under rule 42 read with rule 49 o! The Defence of Pakistan Rules and sentenced) him to suffer R. I. For four years.
7. Mr. Khalid M. Ishaque, the learned counsel for the appellant contended that tie appellant's trial before the Special Tribunal was vitiated by reason of two serious irregularities. It was firstly urged that the Tribunal In undue haste and without justification changed the venue of tine trial from City Court building to the Central Jail, Karachi which had the effect of denying to the appellant the right to an open public trial. The learned counsel argued that in law the venue could not be changed and that the public can never be excluded from- a criminal trial. There u, however, no provision in the Code of Criminal Procedure which compels a Magistrate to hold his Court in the usual Court room: Section 352--- Cr. P. C. Probably contemplates that a Magistrate can bold his Court anywhere he likes and the proviso to this section empowers the Court to exclude public general or any particular person from having access to op remaining in the room o building used by the Court. The proviso confers a judicial power on the Magistrate, to be exercised judicially which would necessarily mean that he has to satisfy himself upon the material placed before him that not because of mere convenience but necessity obliged him to hold a trial in camera. To this extent the learned counsel is right that the proposal for shifting the venue was made by the Tribunal hurriedly and without applying its mind as to its effect on the appellant's right to obtain, an open trial. The Tribunal, no sooner the case had been transferred to it, on its own motion and without a single hearing before it sought the permission from the Provincial Govern--ment for holding the appellant's trial at Karachi Jail. The reason given was likelihood of creating lax and order situation at the City Court as the accused was a political figure. The Tribunal overlooked the fact that before the transfer, the cast had proceeded at Karachi at City Court building on 7 occasions and at Hyderabed in a normal Court promises on 6 occasions and according to the admission made by the Senior Member of the Tribunal before us, he neither made any enquiries as to the situation before the Magistrate had he bean informed that any situation apprehended by him toad arisen before the earlier Court. The Tribunal was equally unconscious of the fact that the Government had granted sanction for trial is jail under rule 4 of Chapter I-A. Volume III of Rules and Orders of the Lahore High Court which is a rule to give effect to the proviso to section 352, Cr. P. C. In other words it was to follow that trial would not be an open trial. Even otherwise trial in Jail in the nature of things would not be a trial open t3 public view. Public cannot be easily persuaded to attend a trial in jail where entry and exit is restricted under Jail Rules and every entrant has to have his name entered in an official register maintained for the purpose. The record does not show that the Tribunal took say steps to ensure a public trial at the Jail. If the Tribunal had applied its mini it would have realized that in effect it was exercising it powers under the proviso to the said section 352 which was a judicial power to be exercised with care and circumspection, for Importance of an open public trial can never be underestimated. Publicity in the administration of Justice is one of the surest guarantees of our liberties and the Court should be doubly vigilant against its denial oat its own motion. In the case of Scott v. Scott ((1) 11911) 13 All E R) Lord Shaw, in relation to a trial in camera observed that - "All interruption or impediment either to the elucidation of truth or the dignity or decorum of the proceediflg3-conooived to be possible by the presence of the public had been avoided"
The only three exceptions which are according to the learned Lord acknowledged to the application of the rule prescribing the publicity of Courts of justice area t in suits affecting wards 1 in lunacy proceedings; and in these cases where secrecy, as for instance, the secrecy of a process of manufacture or discovery or invention trade secret is of the essence of the cause.
8. Over 150 years age Bentham was moved to write-- "In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate.
Where them is no publicity there is no justice. .Publicity it the very soul of justice, It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the judge himself while trying under trial."
9. Our attention was also invited to the view of the Supreme Court of United States on the subject in the case of Re: William Oliver (92 Law Ed. 682) as under :- "The traditional Angle-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an Instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our Courts as instruments of persecution. The knowledge that every criminal trial is subject to contempotaneous review in the forum of public opinion is art effective restraint on possible abuse of judicial power."
10. The appellant was a politician of stature. He had squarely alleged political victimization. Tile allegedly seditious speech was made in public. There was at the relevant time no right of appeal unless a person was sentenced by the Tribunal to death or transportation for life or to imprison-- ment for a term exceeding tan years. The prescribed procedure for tial by Special Tribunal was heavily loaded in favour of the prosecution. It was, therefore. All the more necessary that the trial should have been held in public view. These were compelling considerations that favoured an open trial so that justice should not only be done but should manifestly seen to be done. Even from the point of view of the Tribunal it was more appropriate to do so, for as it now transpires there would have been no occasion for the appellant to allege acts of commission and omission on the part of the Tribunal at the hearing held on 7th and 9th of January, 1975.
11. The second irregularity which according to Mr. Khalid Ishaque vitiated the trial was the denial of opportunity to the appellant to defend himself. This unfortunately is borne out by the record of the Tribunal to which I have made a reference earlier. According to the Tribunal it was the appellant who bad boycotted the proceedings both on the 7th as well as 9th of January, 1975. The record, however, shows that this boycott was confined to 7th of January, 1975. According to the diary-sheet the case was adjourned for further hearing to 9th. The appellant was given notice for further trial on this date. But the Tribunal met on 8th January, 1975 without any notice to the appellant and fixed the case for decision on 9th January, 1975. There is nothing on the record to show, and it would appear that there was no C occasion. That the appellant boycotted the proceedings on 9th January, 1915 on which date the Tribunal was already armed with a judgment which it proceeded to pronounce. The unhappy impression created is that while the appellant's counsel were seeking instructions on the evidence to be lee in defence the Tribunal without waiting for a reply pronounced the judgment.
12. It is obvious that the irregularities in procedure referred to above resulted in substantial and grave injustice to the appellant and his conviction, therefore, cannot be sustained.
13. The learned Additional Advocate-General contended that the result would be a fresh trial against the appellant. I am, however of the view that it does not necessarily so follow for it is foe this Court to consider , whether in the circumstances it is a fit case for re-trial. The Federal Court in the case of Mould Astruddin v. The Crown (PLD 1953 FC 125) refused to order retrial o the ground that the accused had remained in custody for a long time dating the course of his trial. The Dacca High Court in the case of Basantkumar Choudhry v. The State (PLD 1962 Dacca 61) did not direct retrial for the same reason. La the case of Inayatullah v. The State (PLD 1961 Lah. 669) a retrial was not ordered not only on the ground of the delay in the trial but also because there were weaknesses in the prosecution story. In the case of Zabte Khan v. The State (PLD 1972 Lah. 196) the learned Judge was not inclined to order retrial as the appellant had remained in Jail for about two years. In the present case the appellant was convicted on 9-1-1975 and has undergone a major part of his sentence. His remaining sentence has been remitted by the Government and tae two other cases in which also the charge is seditious have been withdrawn by the Government. His incarceration has resulted in lose of his left eye and according to the medical report of the ronouned Neuro Surgeon Dr. Jooma, dated 23rd May, 1977, he continues to suffer headache, occasional vomiting, giddiness and disturbed sleep. He has been advised to take certain teats abroad but as these according to the doctor entail some risk he is reluctant to accept this advice. I have also examined his allegedly seditious speech. Mr. Khalid Ishaque and Mr. S. A. Wadood, the learned counsel for the appellant were good enough to take us through the decided cases on the subject. I find that the speech in question was far We offensive than speeches which were found by our superior Courts to be not seditious. In the speech there is no invitation to violence nor is there a call to dislodge the Government by for or show of force which is a necessary ingredient of the offence of sedition. As was observed by Waheeduddin Ahmad. J. (as he then was) in Sailor Ataullah glum v. The State (PLD 1963 Kar.136) that since the Partition there is a tendency to award light sentences in sedition cases but the appellant received an unusually harsh sentence when there was no room for his conviction. In this view of the matter there is no reason to order a fresh trial.
14. Before I part, I must refer to one more sad aspect of the case to which my attention was forcefully drawn both by Mr. Khalid Ishaque and Mr. S. A. Wadood. The appellant had received head injuries a day prior to his arrest at a scuffle with the police at Qaid-e-Azam's Maser when he was allegedly trying to save a protesting lady teacher from being beaten up by the police. The injuries resulted in 16 stitches on his head whim ultimately led to the loss of vision of one eye apart from severe headache, vomiting and sleeplessness. On 27-9-197x, he made a written application for medical treatment before the Additional District Magistrate, Hyderabad wherein he complained that his head wound was cut after 16 days instead of 7 days after the wound had developed puss and that he was suffering from severe headache, partial loss of vision and loss of sloop and lie way, therefore, be removed to the Hospital as no proper arrangement for treat--ment was available in Jail. The learned Magistrate directed the Superin--tendent Jail to have the accused thoroughly checked and examined medically and if need be he should be referred to Civil Hospital.
Hyderabad. This order was not implemented. On 29-7-1974, the appellant made another application before the A. D. M. At Karachi on which too a direction was given that he should be got medically examined and also by specialists available at the Civil Hospital if found necessary. On 5- 9-1974, the appellant complained to the Tribunal that the previous order that he be examined by a specialist had not been implemented. On this the Tribunal made an endorsement that the Medical Officer of the Central Prison was of the opinion that it was case of neurology and he should, therefore, be referred to a neurologist and the Jail Superintendent should report what action h had taken in the matter which report should be submitted on 14-9-1974. On 13-9-1974, the Jail Superintendent wrote to the Medical Superintendent Civil Hospital that a neurelogist be directed to attend the Jail for examination .Of the appellant. This request was again repeated on 16th September, 1974. On 21-9-1974 the appellant was examined not by a neurologist but by a professor of Medicine. On 11th December, 1974 the appellant repeats the request for examination by a neuro- specialist and it was not until ill August, 1975 that he was so examined. The appellant was thus denies proper and expeditious medical treatment which resulted in loss of vision of his left eye. I cannot but express my concern at this neglect and indif--ference shown to the appellant. This is not a solitary instance of lack of feeling and cacern far human suffering. In Zartna Gauhar v. The Province of Sind (PLD 1973 Kar. 1257) the detenu was kept in solitary confinement. In Khadija Bhabha v, The Province of Sind (PLD 1973 Kar. 421) the detenu was kept in 'C' Class though this Court lead given him 'B' class, and the detenu's wife was denied the right to vial him an flimsy grounds. The common allegation in most cases oaf detention is that the detenu was arrested without a warrant and his whereabouts n made known to his family members. I can only hope that in the new tomorrow the powers that be will be more sympathetic to its political opponents.
15. The result, therefore, is that this Criminal Appeal is allowed and the appellant's conviction is set aside and with it will stand disposed of the Constitutional Petition No. 169 of 1975.
ABDUL QADIR HAI.BPOTA, J.-I agree.