SHAFI-UR-REHMAN, J.-The Government of Sind by two separate orders, both dated 10-12-1974, sanctioned the prosecution of the appellant Mirza Jawad Beg, aged 52 years, under section 16 of the Prevention of Anti-National Activities Act of 1974, and under section 123-A, P. P. C. The trial of the appellant was held by the Special Court constituted under the Supression of Terrorist Activities (Special Courts) Ordinance, 1974 (XVIII of 1974). The two cases were consolidated and the trial of the two charges was joint. The Special Court found the appellant guilty on both the charges, convicted and sentenced him to undergo seven years rigorous imprisonment and to pay a fine of Rs. 5,000, or in default to suffer one year's rigorous imprisonment for the offence under section 123- A, P. P. C. And to five years' rigorous imprisonment for the offence under section 13 read with section 2 of the Prevention of Anti-National Activities Act, 1974.
2. The appellant filed an appeal in the High Court of Sind & Baluchistan, as it then was, under section 7 of Ordinance XVIII of 1974,and the High Court by its order dated 23-4-1976 upheld the convictions and sentences. This Court by its order dated 8-9-1976 granted the appellant leave to appeal to examine the following submission made by his counsel:--
(i) The petitioner's conviction rests on no evidence; in no pamphlet produced in the casenor in any statement attributed to him, he had canvassed the secession of Karachi from Pakistan or, for that matter from the Province of Sind. According to the learned counsel all that he canvassed was a more "glorified" status for the administration in Karachi which he considered to be the proper solution of the various ills from which the administration suffers.
(ii) The conclusion of the High Court suffers from misreading of the evidence and attaches significance to the expression "right of self-determination out of the context in which it was used in some of the pamphlets.
(iii) There is complete want of evidence to support the petitioner's conviction under section 13 of the 1974, Act in that he is not being accused of any terrorist activity.
(iv) No competent sanction was obtained from the Provincial Govern--ment which was a condition precedent for the petitioner's trial for both the offences.
3. The criminal cases against the appellant started on the evening of 30-11-1974 when Ghulam Rabbani (P. W. 8) S. H. O. Police Station Soldier Bazar, came across certain evening newspapers, whose identity to date remains undisclosed carrying an article on Metropolitan Government in Karachi. He directed his subordinate Mushtaq Ahmad (P. W. 2) Moharrir Head Constable to get hold of other similar publications. The Moharrir Head Constable produced at 5-30 p. m. The Daily Hurriat of 30-10-1974 (Exh. D) which carried an article on the same subject. It was seized Another Constable Muhammad Hussain (P. W. 3) produced certain pamphlets relating to "Karachi Shebri Hakoornat".
These pamphlets were exhibited as Exhs.4/D to 4/J An envelope containing the map of Greater Karachi was also produced by the same Constable. A case was forthwith registered at 7-45 p. m., the date of occurrence being shown as "before" 30-11-1974. A raid was conducted at the office of the "Tehrik" and pamphlets in Urdu and English and Gujrati were recovered in bundles, in all, 35, along with rubber-stamps, paper badges etc. It was also reported that the appellant had been distributing these pamphlets at the Mausoleum of Quaid-i-Azam. The investigation was conducted by Ghulam Rabbani (P.W.8) S.H.O. Supervised and finalized by Sardar Abdul Aziz D.S.P.,(P.W.1) who placed the record of investigation before the Home Secretary to the Government of Sind and obtained the sanction for the prosecution of the appellant.
4. At the trial the prosecution examined eight witnesses. Sardar Abdul Aziz (P.W.1) D.S.P Jamshed Quarters, claimed to be an undergraduate Department in various capacities. On reading the pamphlets Exhs.4/D he said that effect was created on my mind that the publisher of these documents wanted to propagate and advocate the ideas of secession of Karachi from Pakistan. I also concluded that the accused tried to influence the public to act in a prejudicial manner and abolition of the sovereignty of Pakistan in relation to District of Karachi. He did not verity the family background or antecedents of the appellant. He did not attempt to find out who were associated with the appellant in the movement ---Tehrik Shehri Hakoomat--- and he supervised the investigation and at the end of it submitted the record to the Home Secretary for obtaining the sanction for prosecuting the appellant in court.
5. Mushtaq Ahmad Moharrir Head Constable (P.W.2) on the direction of the S.H.O Ghulam Rabbani (P.W.8) procured Hurriat dated 30-10-1974, containing the article Exh.D. Muhammad Hussain (P.W.3) another constable had seen the appellant distributing the posters. He obtained these and submitted them to the S.H.O Nazar Hussain (P.W.4), a welder by profession and formerly Chairman of the union committee was invited by the appellant to join ---Tehrik Shehri Hakoomat--- but he did not in fact join it. He was a recovery witness to the pamphlets and the bundles of posters etc. On search form the office of the Tehrik. Sadaruddin (P.W.5) an owner Taxi driver with ability to read Urdu and English but having ability to write only Urdu stated about the appellant distributing these pamphlets near the Mausoleum of Quaid-i-Azam on 30-11-1974. He claimed that after reading the pamphlets he got the impression that the pamphlets advocated secession of Karachi and as he did not like it he tore and threw them away. Kalimul Hassan (P.W.6) stated about having printed at his press the various posters and pamphlets etc. Recovered form the office of the Tehrik and this he said he had been dong since July 1972. He claimed that he did not consider the publication as breach of any law and for that reason printed them. Azhar Siddiqui (P.W.7) witnessed the recoveries from the press on 2-12-1974. The last prosecution witness in the case was Ghulam Rabbani S.H.O.
(P.W.8) who recorded the F.I.R and conducted the investigation.
6. The plea of the appellant at the trial was that belongs to a respectable family had been associate with the Pakistan Movement and had been close to the politicians then in the forefront spearheading the movement for Pakistan. He was elected a Basic Democrat and then a member of the Karachi Divisional Council and according to him at that stage he came directly in contact with the local problems of Karachi city. In an effort to study the functioning of the local Government else where he claims to have visited Japan and almost all the European countries Canada and United State of Amercia an made for months a thorough study of similar institution there. His efforts according to him received an impetus when the Canada Government showed interest and assured financial support to Pakistan Government at the international conference of metropolitan cities held in Toronto. The official delegation from Pakistan attending his conference included Mr.Hatem A. Alvi (D.W.1). At another levels also according to him this particular aspect of the problem in relation to Karachi was examined once by Inayatullah Committee then by Zaiuddin Committee and by Akhtar Hussain Committee. On the basis for big cities like Karachi and Lahore and prepared a paper (copy Exh G) and read it in the symposium organized by the Master Plan Department of the K.D.A. The draft proposals for the proposed autonomous Karachi Metropolitan Government as mentioned in pamphlets Exh 4/D and 4/E were formally placed before the citizen of Karachi and the Government at a press Conference held on 9-12-1972. He admitted to have then launched the movement ---Karachi Muthidda Mahaz--- later redesignated as ---Tehrik Shehri Hakoomat--- incorporation his version of the Metropolitan Government. All the concerned Department of the Government were supplied with the literature which was later considered offensives. He admitted having held public meetings at various places after obtaining permission giving of press statements and in the process always abiding by the law. He claimed to have enlisted the support of responsible people for this movement some of whom were produced by him in his defence.
7. The appellant categorically denied having ever sought the secession of Karachi. On the contrary he said that he had always been advocating the continuance of Metropolitan Administration of Karachi as a part of Sind Province. He explained the accusations against him by filing a written statement and then additional written statement to supplement his oral statement in court. He produced in defence ten witnesses, six of them are journalist who stated about the various news items appearing in Dawn Jang Mornings News and Hurtiat with regard to the Tehrik and the statement made by the appellant from time to time and reported in these dailies. Four others were persons learned and experience in the affairs of the country particularly in law and administration.; Hatim Alvi (D. W. 1), had a long association with the local Government at various stages. He had published an article "Local Metropolitan Government for Karachi" which appeared in the Morning News (Exh. 13/I) on 26-5-1973. He had also subscribed to a joint statement calling for the establishment of Metropolitan Government for Karachi or, the lines and pattern of big city local Govern--ments elsewhere in the world with the citizens controlling their affairs including finance "as carmarked and adopted universally". It was thought by him that with a democratic system of teal local self-Government alone, conditions conducive to establishment of progressive, prosperous and ideal society could be provided and "after the establishment of the proposed city Government here the present sense of insecurity and neglect among the citizens would be washed away and they would begin to solve all their economic and social problems with interest and diligence through their chosen representatives". He also claims to have shared and sympathised with the efforts made by the appellant and his movement particularly through the pamphlets Exhs.
4/D to 4/J. According to this witness "the object of the pamphlets which are the subject-matter of this case, is only to educate the people of Karachi. I have never suspected accused to be disloyal to Pakistan. I state that in thought, word and deed he is a loyal citizen of Pakistan". He also stated "I subscribe to the view that the citizens of Karachi have a fundamental right of self-determination but only to the extent of governing local affairs".
8. Mr. Akhtar Hussain (D. W. 2), a retired civil servant, and an Ex. Governor of the Province of West Pakistan, was also a signatory to the joint statement (Exh. 13/D) and he stated that he had submitted "various reports to the Sind Government in regard to the working of Karachi Administration which also included self-Government in relation to this city" He "subscribed to the concept of Metropolitan Government". His concept of Metropolitan Government was not of a Government independent of the Federal or Provincial Government.
9. Mr. Qadeeruddin (D. W. 4), a retired Chief Justice of the West Pakistan High Court, claimed-to be closely associated with the "Tehrik Shehri Hakoomat" and he was also a signatory to the joint statement referred to. He said that "in my conversation with the accused I have never found that the accused wanted or intended to establish a separate Government for Karachi independent of Pakistan. During my conversations I have on the contrary found that the accused had wanted a status of dignity for Karachi, as a part of Sind Province and under the Government of Sind. As regards the expression "self-determination" the witness said that I state that all local self- Governments are founded on right of self-determination. I do not agree that right of self- determination connotes no other concept except the agitation of colonial people to obtain freedom from the subjugator". He claimed some sort of a relationship with the appellant but said that he had visited the house of the appellant only once in his life but the appellant used to visit him more often.
10. Another defence witness was Mr. M. B. Ahmad (D. W. 5) a retired Judge of. The High Court. He considered the objectionable pamphlets "constitutionally proper". The appellant had requested this witness to prepare a draft bill for introducing it in the Legislature of the Province of Sind. The appellant had said to this witness that "he had arranged for piloting the bill in the Legislature through some member of the Assembly". He was also a signatory to the joint statement. He said that "by mere demand of right of self-determination the accused is not advocating for separation of Karachi from Pakistan or Sind. I am aware that Kashmiris are demanding a right of self- determination but I must state that their demand is in a different context".
11. As regards the objectionable printed material on which the prosecution of the appellant is primarily based, it falls into four categories The first category which has been kept back by the prosecution, was of the evening newspapers of 30-10-1974 which attracted the attention of Ghulam Rabbani (P. W. 8). Not even the identity of these newspapers has been disclosed except that the S. H. O. Was able to obtain a copy of the Daily Huarriat dated 3010-1974 which according to him, contained some material with regard to the activities of this "Tehrik". The second category comprises the printed literature in English, formally setting out the genesis, the concept, the philosophy, the structure and functioning of the Metropolitan Government as envisaged by the appellant and towards which the thrust of the movement started by him was directed. These are the pamphlets (Exhs. 4/D and 4/E). The third category comprises similar documents in Urdu and Gujrati (Exh. 4/G and 4/F). These retain the main features of their counterparts in English but had certain embellishments like use of verses here and there, at times warning and caution directed to arouse and sustain interest and an appeal to the masses to feel their responsibility in the matter.
The fourth and the last category comprises the supplemental document, like maps, flags and envelopes etc. Illustrating the plan.
12. The Hurriat dated 30-101974 (Exh. D) reported the proceedings of the annual meeting of the regional convenors of the Tehrik and contained a summary of the address of the appellant to the workers. He had emphasized the need for hard work against odds, eschewing of political differences, spread of message of fellow-feeling and brotherhood and advocated for Karachi a democratic form of Government adopted all the world over for all such big cities, as according to him, only such a representative institution could attend to and solve the manifold problems of the city. This report has not received much attention in the two judgments now under considera--tion.
13. The next document (Exh. 4/D) bears the heading "The Autonomous Karachi Metropolitan Government, its concepts and advantages". It starts by highlighting the unique position that Karachi enjoys in the matter of being the largest city, most commercial and industrial with highest percentage of literacy, greatest contribution to the big business, industry and being the "only sea port and the only international airport of our country". The attention was next drawn in this pamphlet to the neglect and in attention from which this city has suffered by pointing out that "overwhelming majority of the citizens of Karachi are living in a miserable condition and most of them are even deprived of the barest necessities of life. The cases of such a state of affairs have been summarized under the heading "causes" as "the denial of the right of self-determination indifference to the city's problems by the Governments and undue control of the present Government over local monetry resources". Under the heading "the only solution" is contained the plan which was placed before the citizens of Karachi at a press conference held on 9-2-1972 envisaging " the establishment of an autonomous Metropolitan Government "Shehri Hakoomat" for the greater Karachi area on the basis of the right of self-determination and according for the basic pattern of the present Metropolitan (big city) Governments in other parts of the world". It was made clear that "the original concept is, however, derived from the big city Governments in ancient Rome and Greece which were in fact the first ancestors of modern democracy". In explaining the concept of such a Government the pamphlet recounted "history has proved undisputedly that under undue outside domination and control whether it be by an alien ruler, by a Central Government over the Province or by a Provincial Govern--ment over a Metropoliton (big city) local problems get more and more entangled and complicated". The magnitude of the problem increased with the increase in the population of the city and "the control of the Provincial Government concerned is rendered ineffective and further decentralization becomes indispensable". It was explained in the pamphlet that "as different provinces are autonomous on the basis of self-determination but remain a part of the country and in all national and international matters are always under the control of the Central Government, in the same way a big city having a metropolitan Government, autonomous in the city's administration, finances and development, police and other local affairs, remains an inseparable part of its province". "Not only does the provincial Government keep over all control over the metropolitan administration but the Legislature and, the judiciary remain common among them. Besides, as financial and administrative controls are prescribed between provincial and the Central Governments, similarly, financial limits and the administrative powers are defined and fixed for the metropolitan Government". Under the heading "Concept" the appellant made it clear that "the concept of an, autonomous Metropolitan Government is therefore neither a demand for a separate Province nor of a parallel Government or Government within Government. This form is in fact a middle stage between a Municipal Corporation and a Provincial Administration and has specially been devised for big cities due to their multifarious problems and needs. The elegance of this form of Government is that the citizens gain the fundamental rights to manage their own affairs without being separated from their Province". While recounting the advantages of such a system it was mentioned "as in such form of Government, the city remains an integral part of its province, the citizens enjoy all rights and privileges in the Province as a whole" and after the establishment of an autonomous Metropolitan Government "the Provincial Government is able to get rid of the most complicated and much heavier administrative responsibilities of the big cities and is in a better position to pay its full attention towards development and prosperity ,of more backwards areas of the Province". It was also considered an' advantage by the appellant that by the establishment of such a Government in Karachi the separatist tendencies (in the form of separate Karachi Province) developed in a section of the citizens after the linguistic disturbances and labour unrest, shall be curbed successfully because all roads to injustice and exploi--tation of the citizens would be closed for ever". It was said to be a non--political party movement and the basic demands were summarized in the concluding portions of the pamphlets as follows:- "In spite of so many favorable conditions, an overwhelming majority of the citizens of Karachi are living in a miserable condition and most of them are even deprived of the barest necessities of life.
No proper attention is paid to town planning, educational facilities; public health, general sanitation, environmental health or control of infectious diseases. Transport problem has become so acute and unbearable that the citizens have to wait for hours together to get a miserable transport and scarcely a day passes without an accidental death in the city. Even after 25 years of the establishment of Pakistan, rehabilitation is still an unsolved problem. Poor citizens are thrown away from the city to outlying places and are forced to live in sub--human conditions without any amenities or basic necessities of life; while rich and wealthy persons are given large plots of land to build palatial houses in the very heart of the city. According to an authentic estimate, about 3 lacs citizens sleep on pavements and footpaths in Karachi, and another over 18 lacs live in improvised hutments without any water connection, drainage or electricity."
14. The other English pamphlet (Publication No. 11) Exh. 4/E provides the "Structure of Working of the Autonomous Karachi Metropolitan Government". The administrative structure projected is that of an autonomous Karachi Metropolitan Government called the Metro-Govern--ment with two subordinate tiers of "District Municipalities" and "Boroughs". The various Departments of the Metro- Government have been set out in para 2 with the governing condition that the Greater Karachi shall remain a part of the Province of Sind and the Provincial Government shall keep overall control over the Metro-Government. The Metro-Government shall however be autonomous in character and shall exercise full administrative powers of the Provincial Government in local matters". The functional distribution has been set out in para. 4 and mentions "Metro-Government shall have absolute powers for appointment/ transfer/punishment /dismissal etc. In respect of all Government servants under its administrative control With regard to Class I Government Servants taken on deputation, powers of their transfer within the local jurisdiction their suspension and grant of leave shall remain with the Metro---Government" .In para. 5 it was made clear that the Metro- Government was to act as the agent to the Central Government in certain Departments and was to be effectively represented on various other authorities within the district of Karachi, like the University of Karachi, Karachi Electric Supply Corporation, P. W. R., Karachi Port Trust etc. As regards the finances and revenues it was provided that "apart from their levy of tax and its collection 35 % will be shared from the principal taxes and another 35 % from the Central Government with regard to certain categories of taxes". There was to be an. Elected assembly called Local Parliament which was the supreme body of the Metro-Government.
15. The two pamphlets in Urdu (Exh. D M and Exh. D I) are vernacular reproductions of the English documents (Exh. 4-D and Exh. 4-E). There are two small posters in Urdu (Exh. 4-G) and (Exh. 4-M) which contain an appeal to them assess in the rhetorical fashion, embellished with verses calling upon them to unite and rise to the occasion before it is too late.
16. The Special Court confined the trial of the appellant to the printed pamphlets exhibited on record, excluding all other evidence concerning the formation of the Muthadda Muhaz, its objectives and methods as ascertain--able from documents other than these. This is clear from the following observations of the Court :- "In regard to such previous statements or press statements I must say that the same will have no relevance in the context of the pamphlets. Those are statements of the accused made at a different time and under different circumstances. The seven pamphlets to me are the basis of the trial."
The Special Court formulated the question required to be proved thus: "The prosecution has to prove that the accused was either advocating secession of Karachi from Pakistan or advocating to disrupt the sovereignty and territorial integrity of Pakistan or was advocating curtailment or abolition of the sovereignty of Pakistan in respect of Karachi."
On a reading of the pamphlets and after ascertaining the intention of the appellant there from the Special Court came to the conclusion that "the seven publications in this case are indeed explosive". Further conclusion drawn was that "in case he means local self-Government by use of such terms, such local self-Government shall be all powerful and as a consequence the Provincial Government shall stand denuded of all its powers ... It cannot be said that public transport or issuance of domicile certificates of provincial buildings or functions of Civil Defence or functions of Industrial Estate etc. Could fall within the ambit of powers of Municipalities. That is more that the local self-government can only have powers in relation to its employees but not in relation to Government servants are under control of local self-Government, such body will in fact become Supreme and sovereign because a Government must as of necessity act through its servants". The Special Court could not possibly conceive any over all control of Sind Government. Or Karachi remaining a part of Sind without the Provincial Government having any powers in relation to affairs of Karachi". As regards the distribution of finances and financial powers, it was held that "on a perusal of the pamphlets in question it is perfectly clear to me that the accused has advocated total extinction of financial powers of the Province of Sind because all such sources of finance are sought to be obtained by the Metropolitan Government. In demanding a share from the Federal Taxes, collections, the appellant was held to be "in fact demanding a separate Karachi". The expression "self-determination" used in the disputed pamphlets was held to be not defined in any dictionary but was held to have a special meaning attached to it. It was that "this right of self- determination is not available to any person living within the territory of Pakistan because such right was exercised in 1947 and led to the establishment of Pakistan". It was taken to mean that "Provincial Government of Sindh or the Federal Government of Pakistan should have no right to interfere with the affairs of Karachi so that the citizens of Karachi may achieve their aspirations".
The intention of the accused was also gathered from the fact that he has also stated in the pamphlets that the Metropolitan Government should be established on the patterns of city states of Rome and Greece. It is common knowledge that such city states were completely independent".
The absurdity of the situation was pointed out by the Court by observing that "it would indeed be a myth and a mockery of the existing Government if it is told that Karachi is a part of and shall remain within Pakistan but, Pakistan cannot derive even a penny from it or exercise any administrative control over the various organs of the Metropolitan Government. Such concept is a negation of sovereignty because the simplest definition of sovereignty is the power to control all organs in a State".
17. As regards the defence evidence the statement of four material defence witnesses was explained away by the Special Court by concluding that "on a reading of the evidence of these defence witnesses the conclusion is inescapable that they were not told by the accused that he was demanding ail these powers of the Provincial and the Federal Government". As regards the statement of Mr. M. B. Ahmad, it was said "it is inconceivable that Mr. M. B. Ahmad, who is retired Judge of a High Court, would over agree to pilot a bill for passage in the Provincial Assembly of Sind demanding a share of the Federal Government Revenue. It is also inconceivable that a person of his learning and experience would consider all the subjects and demands to be aimed at the establishment of a better local self-govern--ment". As regards the statement of Mr. Qadeeruddin, it was remarked "it seems that the evidence is a result of the relationship of the witness with the accused". So the appellant was found guilty on both the charges.
18. The learned Judges of the Sind High Court hearing the appeal summarized what they considered "salient features of this concept" of Metro---Government as advanced by the appellant as follows :-
(i) The Karachi Government would be established on the pattern of Greek City States and the State of Rome or the City States of Mecca and Madina. .
(ii) That the Government of Karachi should be established on the basis of the right of self- determination without any outside interference of Central or Provincial Governments.
(iii) The Metropolitan Government of Karachi should have all the powers of a Provincial Government though the Legislature and the High Court could remain common.
(iv) The State of Karachi would include not only the City of Karachi but also the country round about Karachi comprising of the Karachi District.
(v) The author had even contemplated the pattern of the flag for this State of Karachi.
17va.
(vi) The author organized a United Front and incited people to make a united demand to achieve this goal as early as possible."
The learned Judges held that "he has in fact taken precautions to convey the real intention in his mind in this indirect manner without openly infringing the law, by camouflaging the real plan". The learned Judges entered the domain of a possibility by observing as follows :- "Possibly the appellant had under contemplation, the ideal of an empire to be ruled from Karachi, on the pattern of the Roman empire, or may be that as a true descendant of the Great Moghals, the appellant had the latent desire to revive the Moghal Empire and capture the Crown in the good old tradition, with the Imperial Capital at Karachi instead of Delhi and assume the title of Shah Alam III."
The references to the city states of Rome and Greece were taken to betray the intention of the appellant for claiming independence and at the same time it was held that "it is not understood why the author went back thousands of years when he could have given the examples of the sovereign mini-States of the modern world'. The Court thereafter supplied the omission by enumerating and reproducing the system of Governments in smaller independent states like Vatican, Singapore, Monaco, San Marino & Bahrain and mentioned that "Perhaps what the author had in mind was actually this State of Singapore because the author selected the flag for the City State of Karachi on the pattern of the flag of Singapore". Again the learned Judges observed that my purpose in mentioning these mini-States is to show that the idea of creation of an independent and Sovereign State for Karachi cannot be considered as fantastic and the possibility of the author having such a State in mind cannot be overruled. As regards the express mention by the appellant that Karachi was to remain a part of Pakistan, it was stated that "it is true that the appellant has at various places, mentioned that Karachi would remain within the State of Pakistan and he had no intention for secession of Karachi but this is what was being claimed by sponsors of Pakhtoonistan Movement to have a separate homeland for Pakhtoons or the organisers of Bengla Desh Movement, to have an autonomous Bengla Desh, within Pakistan". It was also held that "These pamphlets have been very carefully and cleverly worded to conceal the real object so that the author should be safe from the clutches of law".
19. Right of self-determination as was claimed by the appellant was then examined and the meaning of it was found in the Webster's Dictionary and in the Oxford Dictionary and it was held that "the people who remain within any State cannot demand the right of self-determination unless they want to secede from the present State". The object of the appellant was found to be that "by inciting the public of Karachi for a right of self-determination to decide its future and to create a separate province of Karachi with a separate government without any alien or outside interference, the appellant in effect was preparing the ground which would have ultimately resulted in the secession of this city State from Pakistan like Singapore or Behrain. The demand for the right of self-determination was really a camouflage for the real demand for an independent State for the people who have settled in Karachi". "These pamphlets have been very carefully and cleverly worded to conceal the real object so that the author should be safe from the clutches of the law". The rule of interpretation of the documents adopted was amplified in the following words :- "We would accordingly emphasise the rule that these documents have to be read as a whole and even if there are certain portions mentioning the government of Karachi to remain within the Province or even within Pakistan the intention of the appellant certainly was by means of this agitation to prepare a ground for a separate independent and Sovereign City State of Karachi. The publications have to be considered along with the map of Karachi, the separate flag for Karachi and other observations of the author regarding interference of outsiders in the affairs of Karachi.
Such an ideology leads to the only inference that the appellant considered the inhabitants of the Province of Sind or the citizens of the State of Pakistan outside Karachi, as aliens. These are clearly parochial tendencies which are like poison for the body politic. The country cannot run the risk of allowing such separatist tendencies to propagate and take root t6 destroy the unity and territorial integrity of the sovereign State of Pakistan.", ---The conviction of the appellant was maintained and it was said that the learned counsel for the appellant has refrained from advancing any arguments on the question of sentence".
20. In assailing the conviction and sentence of the appellant, the learned counsel has stated that the appellant, in clamouring for a better form of local self-Government and in providing a plan for it, was not entering a prohibited or a forbidden zone, As a matter of fact he was free to do so as a citizen of Pakistan and was within the limits of law in doing so. Further it is said that the well-known rule of interpretation, of documents, of construing them as a whole and giving every word its plain ordinary meaning and not resorting to conjectures and surmises where the language in plain and admits of no ambiguity or vagueness, was abandoned. Material which was not on record was freely utilized, and preferred over admitted evidence in a criminal trial to record the conviction of the appellant. The intention of the appellant was ascertained, not from the words used by him, but by the unsoundness on the administrative and legal plane of his scheme of local self- Governments and the potential threat that it could pose at a future date in different hands. The entire defence evidence was ignored or rejected on grounds unsupportable in law.
21. It is necessary to set out briefly the constitutional and the statutory provisions concerning the local Government which formed the background in which this movement was started by the appellant. Article 32 of the Constitution of 1973, contained in a Chapter on principles of State Policy, made the provision that ; "The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institu--tions special representation will be given to peasants, workers and women."
Of course, these principles were not enforceable by recourse to Courts of law but it was the responsibility of each organ and authority of the State and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those principles in so far as they relate to the functions of the organ or authority". Article 29 of the constitution called upon the "President in relation to the affairs of the Federation and the Governor of each Province in relation to the affairs of his Province" to get "prepared and laid before the National Assembly or, as the case --may be the Provincial Assembly, a report on the observance and implementation of the principles of Policy". The citizen, therefore could assist the authorities in formulating such scheme, in giving it a form, and substance and in advocating its adoption. The citizen could also, consistently with his right, approach the public direct to obtain acceptability for it.
22. Municipal Administration Ordinance, 1960 and the Basic Demo--cracies Order, 1959 provided a comprehensive plan of Local Government, with which, as the appellant said, he did not agree. The Government of Pakistan declared the urban area of Karachi to be a Municipality under section 6 of the Ordinance by a notification dated 11th October 1960. By Ordinance No. XXI of 1969, promulgated on 6-9-1969, the Government got a power exercisable by notification in the official Gazette to declare a Municipal Committee to be superseded for such period as may be specified in such notification without holding an inquiry or affording an opportunity to the Municipal Committee to show cause against the proposed super session. A Martial Law Order No. 21 was issued on 15-6- 1962 and it was reconstituted by M. L. O. No. 24 by which too the power to dissolve a Municipal Committee was reiterated. The Sind Peaples Local Government Ordinance was promulgated on the 18-2-1972 which provided for the establishment of Karachi Metropolitan Corporation. This completes the narration of statutory provisions concerning local Government in the field when the offence is said to have taken place.
23. The governing principle in interpreting such documents as were involved in this case is to ascertain the intention of the author through the words used. Wordy are taken to have been used in the sense which the common usage of mankind has applied to them in reference to the context in which they are found. It is not always and necessarily the literal dictionary meaning which is to be assigned to the words and expressions but the meaning usually affixed to the words. Extrinsic evidence can be admit for the limited purpose of determining the primary meaning of word used and for no other purpose whatsoever. Besides, the documents have in a predominantly political and an administrative them they had to be sea as a whole in a free, fair and liberal spirit without unduly stressing a strong word here and there or emphasizing a particular notion. Applying these standards to the writings under consideration and examining the judgment under challenge one finds treat deviations from these rules of interpretation are too marked and too frequent.
24. There were two basic themes, the subject being the same, namely, local self-Government. One set of documents provided the theoretical, academic and conceptual plan of the local Government in its historical perspective. They had to be understood and interpreted on the plane of universality and generality and not limited or necessarily confined to the events an institutions existing in our country. The other set of documents deal G with the specific and the more practical aspect of the local Government in this country and had to be necessarily understood in the context o our affairs. Exh. 4/D in English and Exh. 4!H in Urdu fall in the firs set. It is there that reference is made to the ancient system of governance in cities of Greece and Rome in the following words :- "The original concept is however derived from the big city Governments in ancient Rome and Greece which mere in fact the first ancestors of modern democracy. Though still new and novel in Pakistan this concept has already passed the experimental stage elsewhere in the world, where its practicability and usefulness for big cities has sine long been proved beyond doubt."
The factual accuracy of the ancient big city Governments of Rome and ' Greece being the ancestors of modern democracy has not been disputed or doubted in any of the judgments. There is no reference to the City States as such. The basic principle of popular representation as embodied in those institutions and adapted to modern conditions elsewhere in the world has been projected as an example worthy to be followed. Such a reference to a historical fact however has been interpreted by the Special Court as follows :-- "The accused has also stated in the pamphlets that the Metropolitan Government should be established on the patterns of city States of Rome and Greece. It is a common knowledge that such city of states were completely independent."
The learned Judges in the High Court interpreted the reference to this historical fact as follows :- .
"The author has in his zeal to have a separate Government for Karachi advocated the formation of the State of Karachi on the basis of City States of Greece and Rome."
And further observed that: "These Greece City States were sovereign and independent and they had organized self- Government in each State."
The learned Judges of the High Court also posed a question to themselves :-- "It is not understood why the author went back thousand of years when he would have given the example of sovereignty of mini-States of the modern world."
And from this reference it was concluded that a Rome initially a city had become imperial state and a world empire.
"Possibly the appellant had under contemplation the ideal of an empire to be ruled from Karachi on the pattern of the Roman Empire, or may be that as a true descendant of the Great Moghalsthe appellant had the latest desire to revive the Moghal Empire and capture the Crown in the good old tradition, with the Imperial Capital at Karachi instead of Delhi and assume the title of Shah Alam III."
Such an interpretation imputes intention and motives which on no principle can be spelt out from such a reference. Besides, this is against the more categorical statements in the same- document that
(i) It envisages the establishment of autonomous Metropolitan Government (Shehri Hakoomat) for the Greater Karachi area on the basis of right of self-determination and according to the basic pattern of the present Metropolitan (big city) Governments in other part of the world."
(ii) The concept of an autonomous Metropolitan Government is therefore, neither a demand for a separate province nor of a parallel. Government or Government within Government. This form is in fact, a middle stage between a municipal corporation and a Provincial. Administration and has specially been devised for big cities due to their multifarious problems and needs. The elegance of this form Government is that the citizens again the Fundamental Right to manage their own affairs without being separated from their Province."
(iii) Only by such method, moreover, would it be possible for the metropolitan area to retain their institutional, identity and commercial life, while remaining a part of the province for larger governmental purposes and also to evoke in the citizens a sense of interest in both the larger community and the smaller. And in such form of government, the city remains an integral part of its province, the citizens enjoy all rights and privileges in the Province as a whole."
(iv) By the establishment of such a Government in Karachi, the separatist tendencies (in the form of a separate Karachi Province) developed in a section of the citizens after the linguistic disturbances and Labour unrest, shall be curbed successfully because all roads to injustice and exploitation of the citizens would be closed for ever.
Karachi Muthidda Mahaz has been formed which is a non-political party dedicated only to the welfare and prosperity of the citizens of Karachi and for the enviable development and planned explanation of our city.
(vi) Karachi is therefore, not legacy of the people of any one province or region as Mobajirs, Punjabis. Pathans, Balochis, Sindhis, Christians and Parsies have all together put in their sweat and blood to develop this city to its present elevated position. All of them should therefore be allowed to reap the harvest of their untiring efforts together and alike.
(vii) Under the bead "Basic Demands".
"(1) Right of Self-Determination ; The Fundamental Right of the citizens to govern themselves, according to their own wishes and aspirations without any outside interference on the basic pattern of the Metropolitan (big city)
Governments in other countries of the world.
(2) Right to utilize local resources --- The basic and the legal right to retain and utilise sufficient amount of finances from the city's own resources in accordance with the usual practice adopted elsewhere in the world."
25. The learned Judges of the High Court in summarizing the stand of the appellant reproduced in para. 18 of this judgment (Items (iv) and (v) time and again mentioned the "State of Karachi" although the expression "State of Karachi" was nowhere mentioned by the appellant and the very use of such an expression was likely to lead to an incorrect appraisal of the material.
26. The other recital in the same document over-emphasized in the judgment was under the heading "Concept and is as follows "History has proved undisputedly that under undue outside domination and control whether it be by alien ruler by the Central Government over the Province or by a Provincial Government over a Metropolitan (big city) local problems get more and more entangled and complicated."
This expression was not interpreted in its conceptual aspect, or its historical perspective, or given the natural meaning that it had. Instead, its application and effect were localised to Karachi and the reference to the alien Government was taken to mean, in the case of Karachi, to Province of Sind and the Federal Government, and the expressions "undue" "outside" and that "history has proved" were totally ignored. The result was that the learned Judge in the High Court interpreted this as follows :- "It is significant to note that the appellant has all the time tried to incite the public that the poor state of affairs in Karachi is due to the domination by the "alien Governments" who are not taking enough interest and who are taking away the income and resources developed in Karachi and not giving proper share for the city itself."
26.The intention of the appellant that he wanted secession was inferred from the facts and narrations which are not capable of leading to that inference. For example the Special Court held :- "In Exb. 4/H he had again stated that Karachi should be made free of political turmoil, paroachialism and class hatred. It seems that the accused is also demanding the separation of Karachi from the political life of Pakistan,"
This assumes that political turmoil, paroschialism and hatred is going to be an inseparable part of the politics of Pakistan and anybody advocating elimination of these can be taken to be promoting the breaking away from the political life of Pakistan.
27. The learned Judges in the High Court were not so convinced wit regard to the intention of the appellant as one of seeking secession and arrive at it by a process of reasoning which appears conjectural. They were, it appears, more impressed by the potential threat than by the actual meaning of the words used in the pamphlets. This is clear from the following observation made in the judgment :- "Thus by inciting the public of Karachi for a right of self-determination to decide its future and to create a separate province of Karachi with a separate government without any alien or outside interference the appellant in effect was preparing the ground which would have ultimately resulted in the secession of this city state from Pakistan like Singapore or Behrain."
Again in para 30 of the judgment the learned Judges observed as follows :- "We would accordingly emphasise the rule that these documents have to be read as a whole and even if there are certain portions mentioning the government of Karachi to remain within the Province or even within Pakistan the intention of the appellant was by means of this agitation to prepare a ground for a separate independent and sovereign city state of Karachi."
Unlike the Special Court the learned Judges in the High Court recorded a clear finding on another aspect of the case and it was that :- "Such an ideology leads to the only inference that the appellant a considered the inhabitants of the province of Sind or the citizens of the State of Pakistan outside Karachi as aliens. These are clearly parochial tendencies, which act like poison for the body politic. The country cannot run the risk of allowing such separatist tendencies topropagate and take root to destroy the unity and territorial integrityof the sovereign State of Pakistan."
29. The special Court as well as the learned Judges in the High Court picked up the expression "self-determination" tore it from its context, one gave to it a sub-continental meaning relating it to Pakistan Movement and the propaganda of National Awami Party and secession of East Pakistan and the other, gave it the varied meaning that it has in International Law in the context of multinational States.
30. The Layman's Dictionary (Chambers Twentieth Century, 197 Print) defines self-determination as "determination without extraneous impluse, direction of the attention or will to an object, the power of population to decide its own government and political relations or of a individual to live his own life."
The Oxford English Dictionary, Vol. IX (1961 Edition), page 418, defines it as "Determination of one's mind or will by itself towards an object."
The Webster's New International Dictionary of the English usage (Second Edition) contains the following meaning "(1) Determination of one's acts or states by one-self without external compulsing.
(2) International Law Decision by the population of a territorial unit as to its future political status, especially, as regards form of Govern--ment, independence of choice between nations with one of which it shall be merged."
Encyclopedia Brittanica defines it as follows :- "A term widely used in contemporary international relations with a variety bf meanings. Historically is meant the right of people in a State to choose their own government. In this sense it is opposed to an absolute monarchy based on the divine rights of Kings and is instead in accord with Rouseean's doctrine that sovereignty resides in the people and not in the ruler. French Revolution gave currency tp this idea . . . . The American Revolution provided another contribution to the doctrine of self-determination. It became the signal for similar anti-colonial and independence movements in Latin America though without the connotation of self-Government."
31. The dictionary meaning and the historical evolution of the meaning apart, where the expression capable of such varied meaning had itself been used with qualifying words, unmistakably controlling and Illustrating its meaning, there was no occasion to tear the expression out of its context and to give a free play to imagination. It was defined in the offensive document itself as ; "The Fundamental Right of the citizens to govern themselves, according to their own wishes and aspirations without any outside interference on the basic pattern of the Metropolitan (big city)
Governments in other countries of the world."
It was a self-contained definition of the type of right of self-determina--tion, its dimensions and scope and read with the numerous controlling features expressly reproduced in words of the author himself in para. 24 (concluding portion) there was left no scope for the inferences which were drawn.
32. There were certain overriding features in the second set of docu--ments dealing with the more specific questions of the organization and structure of the Metropolitan Government of Karachi.
These were:
(i) The Metro Government shall, however, be autonomous in character .
(ii) The Greater Karachi shall remain a part of the Province of Sind and the Provincial Government shall keep overall control over the Metro Government.
(iii) With regard to class I Government servants taken on deputation only `powers of their transfer within the local jurisdiction, their suspension and grant of leave' was to be retained by Metro Government.
(iv) The Metro Government was to exercise `administrative and supervisory control' over a number of specified (para. 5) Departments as agent to the Central Government.
(v) A number of Central and Provincial institutions and authorities (para. 6) were to remain physically located within Metro Government and independent of it, the Metro Government only seeking effective representation on these.
(vi) Financial share was claimed of a portion, in no case more than 35 of the taxes recovered, on certain specified heads by Provincial and Central Government."
33. The word "autonomy", and its variant autonomous have been judicially considered in the political setting of Pakistan and distinguished from secession. In the case of Islamic Republic of Pakistan v. Abdul Wali Khan ( PLD 1976 SC 57 ), at page 124 the meaning and the distinction is brought outthe following words :- "Autonomy and secession are mutually self-contradictory concepts. Autonomy means the power or right of partial self-government while cession means complete withdrawal from the Federation or the State. The right of autonomy cannot, therefore, include the right to secession."
These controlling features of the second set of documents under examination were manifest, presenting no problem in understanding or interpretation. If they had been given their due place and a meaning in construing the docu--ments then it could not have been inferred that the plan put forward by appellant visualised demanding the Provincial and the Federal Government K of all their powers throttling their financial viability and spreading of class hatred. The scheme of distribution of powers and functions may appeal unsound to an administrator, inconsistent to a searching eye and impracticable to a more experienced person but these are not the tests for arriving at the criminality of their author.
34. The defence of the appellant has not received a proper treatment in either of the Courts. The Special Court, as pointed out, excluded from consideration the previous statements or the press statements of the appellant. It confined the trial and consideration of the evidence to the seven pamphlets containing the philosophy and the layout of the Local Self-Government a visualized by the appellant. The learned Judges in the High Court con--fined the appeal to the documentary evidence whose authorship, possession and recovery was admitted by the appellant. It was in substance, therefore, a matter of construction of documents. The defence witnesses and their statements had, for this reason, a very limited role. They could depose about the character of the appellant under section 53 of the Evidence Act, which they did. They could enlighten the Court on the meaning of the words and expressions like "self-determination", "Metropolitan Government"
Greater Karachi' etc. As understood locally by those associated with the movement (section 49 ibid). With their understanding and experience they could form their own opinion about the meaning and effect of the documents requiring interpretation. Even if the formation of such an opinion by each of the witness was believed, it could not be decisive of the task before the Courts.
The decision had to proceed on accepted principles of interpretation of such documents.
35. The Special Court separated as a class the statements of four defence witnesses, viz. Mr. Hatim Alvi, (D. W. 1), Mr. Akhtar Hussain (D. W. 2), Mr. Qadeeruddin Ahmad (D. W. 4) and Mr. M. B. Ahmad (D.
W. 5). All of them claimed to have seen and examined these pamphlets, minutely or cursorily, and were of the opinion that there was nothing objectionable in them: either by way of attempt at eroduing the sovereignity of Pakistan or undermining the national objectives. They considered the appellant loyal and dedicated to his cause with which they sympathized. The Special Court brushed aside the effect of their evidence by observing as follows:-- On a reading of the evidence of these defence witnesses the conclusion is un-escapable that they were not told by the accused that he was demanding all these powers of the Provincial and the Federal Govern--ment. In fact, Mr. M. B. Ahmad has stated that the accused had requested him to draft a bill for the purpose of piloting the same in the Sind Provincial Assembly. It is inconceivable that Mr. M. B. Ahmad, who is a retired Judge of a High Court, would ever agree to pilot a bill for passage in the Provincial Assembly of Sind demanding a share of the Federal Government revenues. It is also inconceivable that a person of his learning and experience would consider all the subjects and demands to be aimed at the establishment of a better local self-Government Mr. Qadeeruddin Ahmad has stated before me that the de-fiend of the accused amounted to nothing more but a dignified local self Government. We all know that Local Self Government is and what functions Municipalities have to perform. I have started wondering as to how would a Municipality or even a dignified Karachi Municipal Corporation be concerned with Petrol Price Equalization Fund or Income-tax or Control over Police and numerous other department mentioned by the accused.
It seems to me that the witness, as he admits, had not read the pamphlets in extenso. It is difficult to believe that Mr. Qadeeruddin Ahmed would have such high concept of Local Self Government.
Such Local Self Governments are creatures of Provincial Governments and their functions are clearly stated in the statutes. I also cannot conceive that an organ of Local Self Government like a Municipality or a District Local Bvard being permitted to function without any interference by the Provincial Government which confers authority on such local pelf-Government. 1t seems that the evidence is a result of the relationship of the witness with accused;.
36. The learned Judges of the High Court considering the evidence of these very witnesses held as follows : "They all stated that they had considered the movement of the appellant to be one for advocating a dignified local self Government for Karachi but they had not minutely studied the various publications and pamphlets. That in their concept the Metropolitan Government was not independent of Federal or Provincial Government. In effect they have dissociated from the actual pattern of Karachi Government as was described in detail in various publications and pamphlets by the appellant."
37. The evaluation of the statements of these four defence witnesse by both the Courts far out steps the considerations of relevancy. It was rather harch and unfair of the Special Court to single out Mr. Qadeeruddin Ahmad for rejecting his statement, which was substantially the same as of the others three defence witnesses on the additional ground of being "a result of the relationship of the witness with the accused". What was to be ascertained from these witnesses was their opinion on a fair reading of the disputer documents and not what the appellant told them or did not tell them.
The test for finding out the correctness of their views could not be outside these documents or outside the process of ratiocination relatable to these documents.
38. On a consideration of the case as a whole we find that in October 1974 and months preceding, to which period this case relates, the appellant had a right to express himself freely and publicly on matters of public impor--tance, e. g., the form, structure and powers of local Government wit particular reference to big cities. In expounding his ideas on Local Self Government he proceeded systematically, by studying the problem in depth, publishing literature, preparing papers, organizing meetings after obtaining the requisite permissions from the authorities and enlisting support from these learned and experienced and associated with local Government in divers manners. The appellant owned the authorship, possession, and recovery of the literature considered incriminating against him. He gave detailed statements orally, and in writing more than once, explaining the objectives and rationale of his movement. The Courts in construing these objectionable pamphlets did not construe them fairly and consistently, giving each word its plain meaning without over emphasizing any particular portion and ignor--ing others. The two Courts gave free play to their imagination and in criminal trial and appeal made a comparative study of institutions and Governments in other countries without receiving such material as evidence.
Undue attention was paid to the feasibility and soundness of the plan put forward by the appellant and the germs of future mischief foreseen in it. The controlling features of the scheme so explicitly mentioned in the pamph--lets were all explained away by characterizing them as "Camouflage".
Thus is a case where intention had to be gathered from the writing alone material portions of the writing were totally ignored or explained away on untenable grounds. On the evidence that was before the Courts no case was made out either under section 13 of the Prevention of Anti-National Activities Act o 1974 or under section 123-A, P. P. C. This appeal is, therefore, accepted. The conviction and sentence of the appellant is set aside. The appellant is set aside. The appellant who is on bail is discharged of the bail bone`. Fine or any portion of it, if recovered, shall be refunded to him.