' Z. A. CHANNA , J.-These two Constitutional Petitions assail the trial and conviction of and the sentences awarded to Khuda Bux Lasi and Mohammad Hussain Azad, to whom we will refer to as the detenus, by a Summary Military Court, Karachi, under Martial Law Regulation 13.
2. The facts which have given rise to these two petitions, briefly stated, are that on 15th October, 1978, at 17.50 hours, the two detenus were arrested by police party of Preedy Police Station, headed by S. I. P. Khalid Mahmood, while the detenus were offering themselves for arrest and raising slogans. At the time of The arrest both the detenus were wearing garlands of flower. The first information report of the offence was lodged on the same day by S. I. P. Khalid Mahmood at 17-50 hours. Both the detenus were subsequently produced before the Summary Military Court which held the trial of the detenu between the 18th October and 1st November, 1978. At the trial, the Summary Military Court examined S. I. P. Khalid Mahmood, A. S. I. Mohib Ali, P. C. Shanaras Khan and P. C. Muhammad Sharif. All of them deposed that the two detenus had offered themselves for arrest and that they had heard both the detenus raising slogans. It may, however, be pointed out that whereas S. I. P. Khalid Mahmood, A. S. I. Mohib All and P. C. Mohammad Sharif deposed that the two detenus were raising' slogans of "Jiay Bhutto", "Sada Jiay Bhutto", "Martial Law Murdabad" and "Bhutto Ko Rehakaro", P. C. Shanaras Khan has testified to their raising slogans only regarding the release of Bhutto and has not deposed to their having raised any slogans of "Martial Law Murdabad".
3. Mr. M. S. Khattak, the learned counsel for two detenus, has assailed the trial and convictions of the detenus and the sentences awarded to them by Summary Military Court on the grounds; (1) that the Summary Military Court did not follow the procedure prescribed in the Pakistan Army Rules for trials by Summary Military Courts; (2) that the actions of the two detenus, including the slogans raised by them, do not amount to bringing into hatred or contempt or exciting of disaffection towards the Armed Forces, which is the gravamen of an offence under M. L. R. 13 and (3) that a slogan against the Martial Law cannot be deemed to be a slogan against the Armed Forces or the members thereof.
4. As regards the first contention of Mr. Khattak, we find, on examination of the record of the Summary Military Court which was made available to us by Mr. Mazharul Hach the learned Assistant Advocate-General, that the Summary Military Court has recorded detailed statements of four witnesses, all of whom were cross-examined at length by both the detenus. The Summary Military Court further recorded detailed statements of the two detenus. VA perusal of the record does not disclose that any request was made by the detenus for summoning or examination of defence witnesses. No doubt the record does not indicate whether the summary or precise of the evidence was supplied in advance to the detenus or they were given the assistance of an advocate or a next friend, as required by Rules 23, 24 and 113 of the Pakistan Army Rules, but failure to comply with these rules is curable under Rule 132, unless there has been a failure of justice or prejudice has thereby been caused to the detenus. In the instant case, the learned counsel was unable to satisfy us that there had been either failure of justice or any prejudice caused to the detenus by reason of non-compliance of any rules. A similar view on a practically identical criticism of trial by a Summary Military Court was taken by a Division Bench of this Court in the case of Rustam All v. Martial Law Administrator, Zone 'C' and others (1).
5. As regards the second contention of the learned counsel for the detenus, we are of the view that the slogans raised by the two detenus were primarily in regard to release of Bhutto, who was undergoing trial in murder case. The slogans in regard to his release cannot possibly b construed as bringing or attempting to bring into hatred or contempt, excitin or attempting to excite disaffection towards the Armed Forces or any membe thereof, which is the gist of the offence under M. L. R.
13. There remain the slogan "Martial Law Murdabad". The slogan of "Murdabad" ha become so common that it has lost all its sting and signifies no more than disapproval or censure of the person or authority against which the slogan is raised. Such a slogan, in our opinion, does not have the tendency to bring or attempt to bring into hatred or contempt or excit or attempt to excite disaffection towards the object of the slogan. The raising of such slogans have become common daily occurrences in out country and in the neighbouring countries, and we often bear slogans like "Nokar Shahi Murdabad", "Police Murdabad". The word "Murdabad" should be distinguished from the word "Barbad" which is much stronger and has overtones of hatred and enmity. We had asked the learned Assistant Advocate-General to cite before us any authority to show
(1) PLD 1978 Kar. 736 that such slogans have been held to be actionable but he was unable to do so.
6. It may be pointed out that language of M. L. R. 13 has been borrowed from rule 43(6)(f) of the Defence of Pakistan Rules. The words "bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection" have also been used in section 124-A of the Pakistan Penal Code in regard to offence of sedition. These words over the years have come to acquire a different meaning and been given a different construction from that accorded to them by the earlier authorities. In Z. A. Sulleri v. The Crown (1) it was held: "It is not every kind of disaffection, hatred or contempt which would constitute sedition. It is that degree of disaffection, hatred or contempt which induces people to refuse to recognize the Government at all and leads them to un- Constitutional methods which is essential before a charge of sedition can be held to be established, "Again in Hussain Bakhsh Kausar v. State (2), it was observed that criticism of the Government, in whatever venomous and enraging words it is cloaked, does not constitute an offence under section 124-A, Pakistan Penal Code, and where all that the accused had done was to give an exaggerated emphasis on the treatment meted out to a leader of a political party while under custody, undergoing trial for offences under sections 123-A and 124-A, Pakistan Penal Code, the accused was not guilty under section 124-A, P. P. C. In the case of Ninarendu Dutt Majumdar v.
Emperor (3), the Federal Court referred to the old English adage "Hard words break no bones" for the purposes of elucidating the distinction between the mere criticism or disapproval of the Government, which is not an offence, and the bringing into hatred or contempt or exciting disaffection towards the Government. We may refer to two rulings where slogans or words, apparently hard have been construed not to amount to bringing Government into hatred or contempt nor capable of exciting disaffection towards it. In the case of Satyapal v. Emperor (4), the expression "Jung (war) against the Government" was found not to transgress the border line between exciting discontent and exciting disaffection, since the word "Jung" in Urdu is the word "war" in English is used in a metaphorical sense as in such phrases as "warring elements", "warring opinions", and it was obviously used in that sense by the accused. Again in Des Raj v. Emperor (5), a poster having the heading "Long Live Revolution" was considered not to be actionable or to produce literature advocating violence, as it was a matter of common notoriety that this slogan, whatever its original significance might have been, has now come to be used indiscriminately by all those who aim at bringing about a marked change in the Government of the country, by any means whatever, violent or non-violent, constitutional or otherwise". In the instant case also the word "Murdabad" has come to signify mere disapproval or disapprobation without any active animosity, hatred or disaffection. Finally, I may refer to the decision of the Supreme Court in the case of Province of East Pakistan v. Tofazzal Hosain Printer and another (6). In that case Cornelius, J.
Has given the following masterly exposition of when a speech amounts to bringing the Government into hatred or contempt or tends to excite disaffection against it :- "To determine whether the speech was in itself an incitement to hatred
(1) PLD 1954 Sind 80 (2) PLD 1958 Pesh. 15
(3) AIR 1942 FC 22 (4) AIR 1930 Lah. 309
(5) AIR 1934 Lah. 264 (6) PLD 1965 SC 520 and contempt for the Goverment established by law, it is important first to regard it as a whole, to determine its scope and content, and the direction into which it was designed to guide the minds and actions of the audience. Ex hypothesi that would be a new direction and the necessity for a change would be derived from the existing state of things, requiring therefore some degree of criticism of the established order. A meaning of emphasis of language is a requisite for securing conviction and thus gaining active support. The tendency to hyperbole in public speeches of this kind has a reason behind it, and has to be accepted. The law would, however, not begin to apply unless the words used were in themselves of a character such that they would bring about in the minds of the audience, a strong revulsion of feeling against the established Government, so that a state of active contempt for it as something unworthy would arise, coupled with such aversion as is accompanied ordinarily with a desire to injure or destroy .The object of the aversion."
7. We are satisfied that the slogans raised by the detenus are not such as could possibly bring about in the minds of the audience a strong revulsion of feelings against the Martial Law. The object of the petitioners appears to have been merely to ventilate their feelings for the release of Bhutto and the words "Martial Law Murdabad" must be construed in that context. We are thus of opinion that the slogans raised by the petitioners do not fall within the mischief of M. L. R.
13.
8. In the view that we have taken in regard to the above issue, it is unnecessary to consider the last submission of the learned counsel for the detenus that slogans raised against the Martial Law are not slogans against the Armed Forces or any member thereof, though Martial Law may be run by the Armed Forces. We may only point out that since the Martial Law Authorities are members of the Armed Forces and Martial Law has been imposed by the Armed Forces, slogans against or criticism of Martial Law could prima fade appear to be slogans against or criticism of the Armed Forces.
9. For the reasons stated by us above, we hold that actions allegedly committed by the two detenus do not attract the mischief of M. L. R.
13. We would accordingly allow both the petitions, set aside the convictions and sentences of the two detenus and direct that they be set at liberty if not required in any other case.
' MUSHTAK Au KAM, J.-I agree.