1. GHULAM MUJADDID MIRZA, J.-Altaf Hassan Qureshi and Dr. Ijaz Hassan Quresbi, were convicted under rule 49 of the Defence of Pakistan Rules, 1971 (hereinafter referred to as the Rules) by the Special Tribunal constituted under section 8 (1) of the Defence of Pakistan Ordinance, 1971. Both were sentenced to two 3 ears' R.
1. And a fine of Rs. 10,000 each ; in default of payment of fine to undergo further imprisonment for six months each. The convicts have filed a joint appeal against their conviction and sentences.
2. The appellants are real brothers. They are journalists by profession. Altaf Hassan Qureshi is the Printer and Publisher of Urdu Monthly Magazine known as Urdu Digest. Dr. Ijaz Hassan Qureshi is the President of the Editorial Board of the aforesaid Magazine.
3. In the March 1976 Issue of Urdu Digest, three articles appeared which were :-- Both the appellants were hauled under rule 49 of the Rules, for publishing the said articles, because according to the prosecution the aforesaid articles amounted to prejudicial "reports".
4. In all seven witnesses were examined by the prosecution to prove its case.
2. According to the evidence of Abdur Rehman, Section Officer, Govern--ment of the Punjab, a complimentary copy of Urdu Digest (March 1976 Issue) (Exh. P. G.) was received by him from the Provincial Information Department ; Information Department receives such copies and those are forwarded to the Home Department. This is the usual practice. The Section Officer read the Digest, found the aforesaid three articles objec--tionable and brought it to the notice of Mr. Taqi-ud-Din Pal, Deputy Secretary, Home Department.
3. According to the Deputy Secretary it was he who had passed on the copy of March Issue, which was received through the Information Department, to the Section Officer and the same was brought back to him along with the file pertaining to Urdu Digest and the Deputy Secretary was told that some of the portions were objectionable.
4. The Deputy Secretary examined the Magazine, underlined the objec--tionable portions in the three articles and submitted the case to the Home Secretary who directed that a case should be registered against the appellants. The Deputy Secretary then sent letter (Exh. P. A.) duly signed by him to the District Magistrate together with the photostat copies of the three articles (Exhs. PA/1 to PA/10) on which F. I. R. (Exh. P. B.) was recorded by Wilayat Ali, A. S. I. Duty Officer, Police Station, Mozang. He forwarded the copy of the F. I. R. And its enclosures to Ch. Abdul Majid, Inspector through F. C. Muhammad Ali.
5. Investigation was conducted by Ch. Abdul Majid Inspector, Police Station, Mozang. He recorded the statements of the prosecution witnesses, took into possession copy of March 1976 Issue of Urdu Digest, which was produced by Dr. Ijaz Hassan Qureshi and arrested both the appellants.
6. Prosecution produced Hassan Muhammad, Press Clerk from the office of the Deputy Commissioner, Lahore who maintained the record pertaining to Printing Presses and Publications.
7. He produced the record of Urdu Digest. The declaration of the Publisher (Exh. P. B. 1) was filed on 7- 12-1965, and was authenticated by the District Magistrate on 22-2-1966. He also produced the Printer's declaration lExh. P. C. 1) which was authenticated on 4-5-1966. According to the documents, Altaf Hassan Qureshi was the keeper of the Press known as "Urdu Digest Printers". On 20-12-1969, Ijaz Hassan Qureshi submitted application (Exh. P. E.) on which fresh declara--tion (Exh.
8. P. F.) filed by Ijaz Hassan was authenticated by the District Magistrate on 25-5-1970.
5. Altaf Hassan Qureshi admitted before the Tribunal that he was' the Publisher of the magazine as well as the Printer. He also admitted that he was the writer of the three articles, but took up the plea that the articles and the editorial did not amount to prejudicial reports and as such he had not committed any offence.
9. On being questioned as to why the case against him, his answer was :- "All that I have to say in answer to this question, I have reduced into my written statement Exhibit D.
10. C. Which 1 tender before the Court for being placed on the record of the case. This written statement consists of 19 typed leaves and bears my signature. I also produce some books referred to in this written statement. They are (1) Maqabal Hai Aina Exh. D/l, (2) Nok-e-Zuban Exh. D/2; (3)
11. Chhey Nukat Ki Saehi Taswir Exh. D/3, (4) Kooay Siasat Exh. D/4, (5) Kafay Sailab, Exh. D/5, (6)
12. Andesha Hai Dooro Daraz, Exh. D/6, (7) Aeen-e-Baharan Kia Ho Ga, Exh. D/7, (8) Yeh Siasi Jang Hammey Kahan Le Jai Gi Exh. D/9, and (9) The various issues of Urdu Digest Exh. D/9 to Exh. D/99."
13. While pleading not guilty he stated that he would like to produce defence.
14. The other appellant Dr. Ijaz Qureshi denied to be the Printer of Urdu Digest. He also denied that the aforesaid three articles amounted to prejudicial reports and submitted that he had gone through the written statement filed by his brother, Exh. D. C. And that he adopted the same statement in his defence.
15. When questioned "Does your name appear on page 3 of Exh. P. G. As the Printer of Urdu Digest ?." his answer was; "It does not appear as Printer."
16. When further questioned why this case against you, he stated as under;-- "The circumstances under which the case has been brought against me are set out in detail in Exh.
17. D.. C. Which I have already adopted. What I have to say in addition to this is that I am a real brother of Altaf Hassan Qureshi and was publisher of the Weekly Magazine Zindagi. I have been victimized several times as explained in Exh. D. C.
18. While pleading not guilty, he produced five Issues of Urdu Digest (Exhs. D/20 to D/24) to show that those did not bear his name as Printer of Urdu Digest.
6. Mr. Rafiq Ahmad Bajwa, learned counsel for the appellants, challenged the conviction of the appellant on number of legal as well as factual grounds. His first legal objection was with regard to the framing of the charge. Learned counsel submitted that the original charge was defective and that is why subsequently the words "without lawful authority or excuse" were added. This addition took place after a month and that too in a very casual manner.
19. Learned counsel then drew our attention to the statement of Ijaz Hassan Qureshi under section 342, Cr. P. C. Recorded by the Tribunal, where it was not put to him as to whether he would like to produce evidence in defence.
20. It was further submitted that both the appellants had been denied the right to produce defence evidence. 'The mere fact that the written statement prepared by Altaf Hassan Qureshi was allowed to be placed on the record was nor sufficient proof of the fact that the appellants had been given proper opportunity to lead evidence in defence as required by law.
21. It was argued that the list of witnesses which the appellants submitted was rejected in toto on flimsy grounds. Learned counsel submitted that the Tribunal could curtail the number of witnesses and that too after giving cogent reasons but was not justified in rejecting the entire list. .
7. Learned counsel also challenged the constitution of the Tribunal and argued that it was not properly constituted. Therefore. Entire proceedings were coram non judice and the judgment of the Tribunal was nullity in the eye of law.
22. Even the arrest of the appellants was challenged being in violation of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973.
23. After having addressed us at full length on these legal objections, learned counsel for reasons best known to him gave up all the legal points and submitted that he would like to have a decision from us on merits.
8. In view of the aforesaid position we do not think it necessary to give any authoritative finding on the legal objections, but as certain important facts have come to our notice, therefore, those have to be dealt with.
24. Admittedly the words "without lawful authority and excuse" were added subsequently and that too after the lapse of about one month. Similarly, it is also correct that in the statement under section 342, Cr. P. C. Of Altaf Hassan Qureshi it was never put to him whether he would like to produce any evidence in defence. We are also not satisfied with the manner in which the application of the appellants for summoning the defence witnesses was dealt with. No doubt, it is within the discretion of a Court/Tribunal to curtail the number of witnesses but that does not mean that an accused is to be completely deprived of his right of defence.
25. The objection pertaining to the constitution of the Tribunal was duly noted by the Tribunal, but its decision was deferred and it remained deferred till the judgment was announced.
26. The point pertaining to the arrest of the appellants is also of cons--titutional importance but as this point as well as other legal objections, was given up, we would not like to express any opinion regarding this particular point in this appeal at this stage, but must observe that an arbitrary and general arrest has always been looked down upon by the ordinary law of the land, but now in view of Article 10 of the Constitution, such an arrest stands strongly condemned.
9. The above facts, therefore, show that the manner in which the Tribunal handled the case showed lack of application of judicial mind and the impression one forms is that the Tribunal was in extrordinary haste to con--clude the trial at the cost of the appellants.
27. Before examining the contention of Mr. Bajwa, on merits, we may observe that the case of the prosecution is that the three articles separately, each article in its entirety constituted "prejudicial report".
10. On merits learned counsel submitted that neither of the articles amounted to prejudicial reports.
28. He read each one in extenso. So in order to determine as to whether the three articles or any one of them amounted to prejudicial report, it becomes necessary to paraphrase these articles separately and then examine them in the light of the statutory definition of `prejudicial report' as given in rule 42 of the Rules.
11. The first article "OUR ARMY HIGH COMMAND" deals with what had happened, is happening and is likely to happen in the near future with our Army. According to the author "as Pakistan Army play an important role in the security and solidarity of the country, therefore, every patriotic citizen is interested in its proper organization. The bitter events of past had made an ordinary citizen more sensitive. Since the Army started taking interest in the politics, Martial Law was imposed for the second time, as a result of which the country lost its one wing. Changes in the Army High Command lead to different speculations and it would take time to understand their implication.
29. Pakistan is an underdeveloped country. After separation of East Pakistan its area and population had been reduced considerably. As such, there was no justification to expand the High Command.
30. Colossal amount is being spent on its organization, especially for buying the modern equip--ment.
31. Army High Command had been divided into three categories. General Tikka Khan would be the Defence Advisor to the Prime Minister. The scope of his operation had not been defined. In U. S.. A.
32. And U.R this assignment is vulnerable and if General Tikka Khan had been given the same powers then there was no need to have the Chairman of the Joint Chiefs of Staff. The question arises as to how far the Armed Forces .Chief of Staff would be independent in his decisions. It is also worth considering as to whether Tikka Khan after having spent best years of his life as a soldier would be able to discharge his duties so far as his new assignment is concerned and if he was to be there without being effective then there was' no justification to give him the privileged position of a Cabinet Minister.
33. The duties and powers of the Chairman of the Joint Chief of Staff, General Muhammad Sharif, have not been defined. In U. .S. A. This post goes by rotation and all the three Chiefs, turn by turn become the Chairman and the decisions made by the Chairman are binding on all the three forces. In our country the position seems to be different. The Chairman is not answerable to anyone. Similarly, it is not clear as. To what would be his link with the Deference Secretary and how far he will be able to influence the Defence Advisor to the Prime Minister and to what extent the Chief of the Army Staff would be bound by his decisions especially, when the Chief of the Army Staff has no representation in the present set up. All these matters call for explanation and unless they are promptly dealt with the possibility cannot be ruled out that the decisions made by the Army High Command instead of organizing the Army would result in chaos and such a condition during the days of hostility could prove disastrous.
34. It is being rumoured that General Ziaul Haq who is junior Corps Commander is being appointed as Commander-in-Chief of the Army. This fact is of no importance, because President Ayub promoted Yahya Khan-- Lt.-General and on the same day he was appointed as Commader-in-Chief of the Army. There are other important considerations for the selection of Commander-in-Chief.
35. Personalities do not matter. It is the set-up of the Army which counts and that must be raised on sound foundation and for that matter the entire nation is to be taken into confidence. In case the new set-up of the Army High Command is strong then that would meet the demands of the nation, and our army is bound to show its worth.
36. The author then paid compliments to General Ziaul Haq in the following words; The second article Waqat-i-Zawal is very comprehensive. It starts with a new era which certain sections of people describe as `jaded jahaliat'. Country passed through different stages in political field. Islam was exploited simply to grab power. The first instance of which was General Ayub Khan, who after coming into power advocated the cause of unlimited freedom and went to the extent of atheism. When he noticed the approach of his political decline, he suddenly turned over towards Islam. In his last days Seerat-un---Nabi conference was held. Number of Muslim Rulers visited Pakistan but then it was too late.
37. Then came the Elections of 1970 when Islam versus Socialism became the slogan of the day, but this position led to such a chaos that the nation lost sight of its goal. Those who were not in favour of Islam crossed all limits. Personalities like Shah Faisal came under criticism. Those who talked about Islam were dubbed as C. I. A. Agents. Righteous people were classified as smugglers and black-marketers.
38. During the past four years, the Ruling Party went through a gradual change. Their first slogan was `Long Live Revolution'. This was replaced by "Allah-o-Akbar". Two years ago a Muslim Summit Conference was held in Pakistan, a very healthy sign of unity. In 1976 Ahmadis were declared minority and recently Prime Minister Bhutto offered himself as the humble servant of Islam.
39. Prime Minister Bhutto is the son of a big landlord of Sind. He had his education in U. S. A. And Europe.
40. As such he got little time to study Islam. His mental approach was towards secularism in which religion is a personal matter of an individual and has no say in the affairs of the people. Therefore, Prime Minister remained aloof from Islamic ideology and that is why when he entered politics his "comrades were like-minded". For them religion was an outdated thing. The party, Prime Minister organized after the exit of Ayub regime, was on the basis of communism and the persons who came in front were those who did not like Islam and wanted a free society. Those were the persons who on the tragedy of East Pakistan said "Thank God ; the ideology of Pakistan had finished."
41. Mr. Bhutto, after coming into power on certain occasions said certain things which were not liked by those who in the movement of Pakistan rendered valuable sacrifices. From his words, one could spell out that he had not much liking for Islam and insisted on the enforcement of scientific socialism in Pakistan and for this purpose radio and television were used.
42. In this background, it appears strange that Mr. Bhutto would have much to do with Islam.
43. Nevertheless, it is for the Almighty to guide him to the right path. It does not take long to see the light from within. It is quite possible that all of a sudden the very mode of thinking of Prime Minister bad undergone a change and this could be on account of tragedy of East Pakistan and he in right earnest expressed his repentance before Almighty and took a firm decision to build Pakistan as an ideal Muslim State. But then the question is : has it so happened, and .The answer to that is to be found by verifying the existing circumstances.
44. In order to ascertain this, .Let us first take the fundamental rights guaran--teed by Islam. This list is very lengthy and it is not possible to enforce all such rights all of a sudden:. For that a period of three to four years is required but let us confine to those rights which could be made operative forthwith.
45. The first such right is the security provided to the society for life, property and honour. This could be ascertained through the media of news--papers. One is at pains to note that the human life was never so cheap as it is today. In broad daylight brutal murders are taking place ; there 2s no respect for human life, the Government itself are suspected to be a party to all this. Political murders are on the increase and had gone untraced. Police, who are the custodian of law and order, life and honour of the citizens, are themselves involved, some of its officials are found to be the culprits. They are on friendly terms with the bad characters, the result is that this organ of the Government bad proved ineffective for providing any kind of safeguard to the citizens ; a state of dreadful insecurity and chaos prevails all round.
46. A God-fearing Government would under no circumstances adopt such an attitude because it is ultimately answerable to the Lord Almighty and would move its entire force to maintain law and order. This is the first and foremost mandate of the holy Qur'an for a Muslim Monarch.
47. 1t appears that the aforesaid mandate is being purposely ignored that is why murders and abductions is the order of the day ; the Government are the silent spectator.
48. The second important principle of Islam is Administration of Justice and when this is examined in the light of surrounding circumstances, we find that false cases are being registered against citizens at the instance of the Govern--ment. Only two weeks ago, Governor of the Punjab issued directions to the Government officials that they should abstain from registering such cases ; this is a serious state of affairs. Who does not know that a case against Ch. Zahoor Elahi for the theft of a buffalo was registered; then he was involved in the murder case of Anwar Samman and recently a case was registered against him at Karachi Hotel ; all this is mockery of justice.
49. The Government with unnecessary haste are bringing such laws which curtail the political, economic and social activities. It has become very difficult for a citizen to get near the Fountain of Justice. Islam wants even--handed justice ; whereas the Government is bent upon shattering whatever little is left of the administration of justice. For instance, a Government servant can be removed from service without complying with the basic principles of justice ; any magazine or newspaper can be closed down with a single stroke of pen. Campaign for realisation of arrear of taxes for the last two decades had started without first obtaining explanation from those Government officials who were responsible for this negligence. It is also worth-mentioning that Martial Law was imposed for the second time; assessee were required to file their statements at bayonet point, but yet the taxes are in arrears.
50. The basic demand of Islam is that nobody can be convicted unless the offence against him is proved but now-a-days even those persons who do not see eye to eye with the Government are being victimised, even women and children are not spared. When the Courts come to the rescue of the citizens, the Executive adopts certain devices to make such measures ineffec--tive. The impression one gets is that the Government are always on the out--look for some prey.
51. In Islamic Administration of Justice, the position of Qazi or Judge is exalted. He can even summon the Head of the State. In Islamic law there is no difference between the Rulers and the ruled ; whereas in Pakistan powers of the Judges are being curtailed. Some of the limitations amount to creating obstacle in the proper administration of justice. Those rulers. Who believe in the Day of Judgment and have the fear of the Lord do not act like that.
52. Loyalty to Islam can be shown by providing a citizen with full opportunity of equal rights. This step would have removed number of dis--parities from our society and people would have felt secure.
53. Mutual hatred and enmity would have been replaced by the true spirit of Islamic brother--hood.
54. Unfortunately, this was never done ; on the other hand, the policy of the Government is to create two groups, the one is the favourites of the Government, the other detested by the Government.
55. This division has become so rigid that one has to be in either category. Those, who are friends of the Government, are bestowed with favours whereas, those who are disliked could hardly earn their bread and butter.
56. The analysis of the past events shows that the fundamental principles of Islam, peace, security, happiness and freedom are being trampled over by the Government. Need of the hour is to investigate as to how many problems of life had been solved according to the Principles of Islam and what benefits masses had derived so far.
57. The enquiry in this respect reveals nothing. In Islamic States necessities of life are guaranteed to the citizens; problems are solved by means of a just administration, but Mr. Bhutto has not so far been able to finalise even one solid plan so as to provide the citizens with bare necessities. Shelter- less citizens and tenants are being promised plots of land; villagers are being given to understand that they would be provided with the facility of medical aid. No useful purpose would be served in ascertaining as to whether these are promises or a propaganda campaign. The basic question is whether the distribution of plots would be in accordance with the Principles of Islam or on some other basis, but so far the impression is that the plots and Kachi Abadis are exclusively within the hands of Dr. Mubashir Hassan, who is openly preaching socialism. The poor are under the impression that whatever they are getting is on account of socialism and not Islam.
58. The labour is also being told that socialism has solved all their problems. Peasants without land are being taken towards communism. On this pretext the Government appear to have a hold on all the economic resources of the Nation but still the problems are being multiplied. In case the differences between the employers and employees would have been solved according to the Principles of Islam, then, as a matter of fact, most of the problems would have been settled amicably. The tenants would have due rights; deserving people would have got roof for their shelter. It so appears that the rules are scared to introduce Islam in practical life.
59. Even in official matters Principles of Islam have no application. As usual everything is the same; liquor is in abundance in banquets, the same pump and show, and luxury is at peak. While making fresh plans moral aspect is completely ignored as it used to be during the British Regime. It was a coincidence that a mosque and a cinema had a common wall, this happened during the tenure of the present Government. The protests lodged by the masses were ineffective. The Government had made no arrangement for moral and religious teaching for its officials; on the other hand, those persons are being patronized who have been rejected by the society and behaved with citizens like a Ferro. Such persons are busy in exploiting the masses because of the support of top notchers.
60. Corrupt, immoral and unscrupulous persons see their death in an Islamic order. They are, therefore, keen to get rid of religious idea.
61. The information media instead of serving the cause of Islam is out to destroy it; Minister of Interior, Khan Abdul Qayyum Khan, in spite of his extraordinary loyalty to his political god-father protested that responsible officials of television were responsible for false news and damaging image of Islam. Radio programme are hopeless; obscene songs are being broadcast which are detrimental to the family life.
62. On television vulgar and obscene advertisements are being displayed Which excite emotions; Islamic history is being distorted, new generation is condemning the religion; lessons of dancing are being given on the television as if Islamic culture would not survive without it. The entire Management of this Corporation is in the hands of those who are known to be the open enemies of Islam.
63. Films, especially Punjabi, are causing irreparable damage to the Islamic standard of morality.
64. In nutshell, Radio, Television, Films and obscene magazines, all are out to destroy moral convictions. The new generation had fallen victim to lust and mental degradation. All this is being done under the nose of the Federal Government whose Chief Executive has put on Islamic robes.
65. The writer then deals with the educational system, which according to him is under the supervision of those who attach no importance to Islamic notions but were taking the young generation away from Islam. According to the author there is no proper planning in the Education Department as a result of which complete chaos prevails in educational institutions; young men have no ideal before them, they do not take Islam in its correct revolutionary spirit. On the other hand; the youngsters have an inclination towards atheism, even text-books are being prepared on these lines.
66. The subject of Islamiat is taught in half-hearted manner, the result is that the youngsters do not take interest in that, Educational institutions are responsible for building the character of the young generation, but instead of utilising them for the said purpose the institutions are being utilised for character assassination. Those teachers who are guilty of immoral acts within the institutions, are given protections by persons in power. Students have become more unscrupulous and have no self-respect. Those, who can be won over are being shown favours whereas, others who are firm and abide by certain principles find it difficult to even survive.
67. The colleges and universities are expected to produce persons of such calibre who with their moral strength and integrity could mould the present mode of life according to the doctrines of Islam but such institutions are giving birth to movements based on Provincialism. The unity of nation is at stake. Conscientious elements with heavy heart are constrained to say that our institutions have ruined one generation and are now bent upon destroying the coming generation.
68. The best way for the rulers : to serve the cause of Islam is to first get Islamic Laws translated in modern languages and then those should be enforced, but for this the necessary atmosphere must be created. From times immemorial we have been hearing that Islalm provides a complete Code which guarantees peace, security and happiness but for the last 28 years not a single Islamic law has been enforced nor there appears to be any likelihood in the near future. As a matter of fact, the way the present Government are legislating, shows that even the basic fundamentals of Islam are being ignored. Tribunals have been constituted against whose order no appeal lies; this is contrary to the idea of Islamic justice. There is no punishment provided for adultery and drinking; insurance system is contrary to the law of inheritance.
69. That society in which the conception of God had been blurred and means are being sought to defeat Sunnah; how could Islamic principles be enforced in such a society?
70. With reference to context one can say that our Prime Minister is very serious about Islam but those who were close to him, are creating obstacles in his way. In case, Mr. Bhutto had no respect and love for Islam then the great Islamic Summit would not have been held in Pakistan. Similarly, it was with an extraordinary courage that the Qadiani problem was solved. Prime Minister is also playing an important role in the cause of Arab Alliance. He is also anxious to bring Islamic revolution within Pakistan but persons like J. A. Rahim, Dr. Mubashir Hassan, Khurshid Hassan Mir stand in his way, but they are ineffective. Therefore, one can hope that in the near future some solid decisions shall be made.
71. Let us pray that this hope comes through, but the facts are contrary to that. It is an open secret that Mr. Bhutto is all in all in this country. His political party is simply on account of him and in the recant past he had been making decisions according to his will. There was no one to challenge his power.
72. In such circumstances it can be said that Mr. Bhutto is anxious to move towards Islam but his comrades stand in his way.
73. It is also a fact that when Islamic Summit was held and Qadiani problem was solved, at that time Dr. Mubashir Hassan and Khurshid Hassan Mir were in the Central Cabinet, yet they did not succeed in distract--ing the attention of Mr. Bhutto from )slam and he went ahead with his decisions.
74. Whether Mr. Bhutto was interested in Islam seriously or for some other reason, this question is to be deferred at present.
75. Mr. Bhutto as a seasoned politician is well aware of the fact that the citizens of Pakistan have great love for Islam, therefore, while forming his political party, he left scope for talk with the masses on the basis of Islam. His slogan that Islam is our religion, proved very effective. The other slogan of Masawat-i-Muhammadi also attracted those who had been the victims of landlords and capitalists.
76. Mr. Bhutto then referred to the eradication of Muslims of Punjab at the hands of the Indians and then came the slogan of fight against India for one thousand years. Sword was the symbol of his election campaign which displays fighter-like tendency in him. Similarly, his respectful visits to shrines gave an impression to the public that he has great attachment with Islam.
77. On the basis of religion Mr. .Bhutto had come very close to grab power and in the name of solidarity of Pakistan he took a head on collusion with Sh. Mujib-ur-Rehman, as a result of which he became the monarch.
78. In the first two years of his regime, television, radio and crippled Press gave wide publicity to the red revolution with a tremendous speed. Certain reforms were introduced which paved way for communism and fascism. Every important Department came under the control of the Government; educational institutions lost their freedom; teachers became the servants of the Government. The Government servants became the domestic servants of Mr. Bhutto; Parliament and Executive was under his thumb: judiciary under amendment; religion and morality were outdated. Then all of a sudden after 2 --years there was an uproar of Islam and this was not without any purpose.
79. In the 1956 and 1962 Constitutions the word of Islam was used to pacify the sentiments of the masses. Mr. Bhutto in his Constitution went a step forward, he thought of such devices which pleased the parties who were for the enforcement of the Islamic Constitution. In the draft of the Constitution the word `socialism' had been used. It was subsequently deleted with such a manoeuvre that the word stood propped but the ideology remained intact.
80. The flowery language of the Constitution is deceptive, when one reads in between the lines it becomes obvious that in due course the possibility of causing irreparable damage to Islam cannot be ruled out. In the Constitution there is a provision that State religion would be Islam. This is a misnomer. Instead of the word `religion' it should have been `Din'. In the present instance, it means that the Government would go on discharging some religious responsibilities and for this purpose a Ministry had been formed which deals with Auqaf, the printing and publication o! Holy Qur'an, contact with Muslim Jurists and research in Islam, whereas an Islamic State always seeks guidance from Qur'an and Sunnah. In our Constitution the Government is only obliged to discharge a few religious obligations and the true Islamic Constitution had been deferred for a period of seven years.
81. The main feature of 1973 Constitution is that it provides a general sense of satisfaction to the Muslim citizens and side by side strengthens the roots of secularism and socialism.
82. The tragedy of East Pakistan and economic policy of the Government seriously affected the means of living; big industries were nationalized, business-magnates became panicky; production dropped all of a sudden.
83. Everyone including Mr. Bhutto realised that the proper quarter for economic aid for the country was Middle East; hence there must be cordial relations with them; this was a step in the correct direction. On the invitation of the Shah Faisal Islamic Summit of the Muslim Rulers was held. This was a great historic event, a stepping stone towards revolution. Mr. Bhutto confined himself to a few limited objects only. Muslim Summit provided a golden opportunity for collective thinking and made it easier to appreciate problems of the Islamic world; important decisions were made and this strengthened Mr. Bhutto and his mission. The visit of Muslim Monarchs was a matter of great honour for Pakistanis and while emotions were at peak declaration of recognition of Bangla Desh was made. The opposition which Mr. Bhutto faced on this crucial and sensitive issue for the last two years subsided. It opened a new way for economic aid from Middle East, economy of Pakistan became stabilized.
84. Another advantage of the Conference was that the differences between the Pakistani Forces vanished. The Pakistan Army has extraordinary devotion for Islam. Pakistani soldiers felt uneasy whenever debate started between Islam and Socialism, because for them there is only one ideal under Islam either to be a Ghazi or a martyr. The Summit came as a blessing to Pakistan Forces.
85. This Conference also had reaction on the internal politics of the country. In Punjab, Khar was out, Ramey was in. Islamic Constitu--tion and the Islamic Summit provided political stability to the Prime Ministry.
86. This very year another important incident took place. At Rabwah Railway Station Muslim students were very shabbily treated. This led to a country wide anti-Qadiani agitation. After four months hectic trouble, the Parliament declared Qadianis to be a minority. This decision would go down in Islamic history as one of the most important and that is why Mr. Bhutto claimed himself to be a servant of Islam.
87. It was quite evident from the speech made by the Prime Minister on the 7th September, 1974, in the National Assembly that it was the pressure of the masses which compelled him to take the said decision. Upto the last moment he was in touch with the representatives of the Ahmadis and wanted some via media. Those responsible for the move--ment were treated very harshly and during the last days Army had to be called.
88. Muslim scholars did not feel very happy over the way the announcement was made ; but this was welcomed by the masses, jurists remained buzzled because real issue had not been solved.
89. Ahmadis could not be declared as a minority without holding a separate election nor could their rights be properly safeguarded. Moreover, the decision did not affect the practical life. In some quarters it was taken to be a mere formal declara--tion. Mr. Bhutto never declared Qadiani as a minority for his devo--tion for Islam. If he had 'any regard for Islam then he would not have sought help from the Qadianis in 1970 Election against Pro--Islamic element. Qadiani attitude became very coercive during Mr. Bhutto's regime.
90. The question to be considered is whether it was a political decision, the answer is in the affirmative.
91. He killed two birds with one stone and succeeded in saving his Government and strengthened his position for the future. This could prove to be a very effective weapon during the election campaign in the form of strong propaganda in favour of Mr. Bhutto that he resolved such a complicated question which had not been solved during the last 90 years. All had been done for political consideration. Mr. Bhutto knew that in 1953 the movement was restricted to a few towns ; what was its political re-action when it was crushed. Mr. Daultana left Govern--ment, Khawaja Nazim-ud-Din was deprived of power but this time the movement spread all over the country and to be against such a movement would have been political suicide.
92. In some quarters it was being talked that the Rabwah Railway Station incident was Mr. Bhutto's sponsored. It is being said that some of the officers who were arrested in the beginning of 1973 had the backing of Qadianis, it was then that Mr. Bhutto decided to make this orga--nized minority ineffective. This finds support from the fact that after the Qadianis declaration, some high ranking army officers were sacked.
93. The, game Mr. Bhutto wanted to play was that he wanted Qadianis to remain Within certain limits.
94. At the same time he was thinking of weakening .The Muslim power so that there would be none to oppose him in the future and the ignorant masses should take him to be the defender of Islam.
95. The strategy of Mr. Bhutto on the one hand is to give the Muslim masses an impression that during his regime such valuable services are being rendered for Islam which were never done before. At the same time the Government have not done anything solid. On the other band, the liberal and secular elements were given the impression that cracks had started appearing in the religious foundations. This finds support from the steps so far taken by the Government.
96. When Imam of Masjid-i-Nabvi visited Pakistan he was given unpre--cedented welcome by Pakistanis. This was from the core of their hearts. Millions of Muslims offered their Juma prayers behind him but soon the exhibition of sentiments and emotions was over. Government did not enforce even a single Muslim Law but obtained a certificate of merit from Exalted Sheikh Abdul Aziz.
97. The news is that Imam of Ka'aba Hermain is also to visit Pakistan; it would create sensation ; there would be excitement all over; speeches would be delivered ; Islam would be described as the best religion in the world ; thus Mr. Bhutto would earn Islamic robes. From the visit of Imam of Hermain all doubts from the minds of people about Mr. Bhutto's devotion to Islam would disappear.
98. In this month arrangements are being made on huge scale for the opening of Seerat Conference. It is an honour for Pakistan, this would be a good occasion to pay tributes to Holy Prophet (Peace be upon him). It would have good reaction on national level, but, the basic question is whether Islamic Code would be enforced, there does, not appear to be any such intention. On the other hand, the policy adopted by the Government is otherwise. Then all this is a farce. It is possible that Mr. Bhutto may win election due to this but it is bound to cause irreparable damage to the image of Islam.
99. Our Prime Minister took special interest in mosques when he visited Canada. He denoted a sum of rupees hundred thousand dollars. In Islamabad biggest Faisal mosque is to be constructed. These are encourag--ing news but the predominant part of this is to project Mr. Bhuttd as a whole-- hearted devoted servant of Islam. Again the basic question is what are chances of Islam being introduced in the practical life.
100. There is one common factor in those who had been in power and who are in power and that is to numb the emotions of the masses with reference to Islam. Immediately after creation of Pakistan a very important Muslim Conference was held in Karachi but nothing substantial came out of it. Then in the time of . Sikandar Mirza important seminars on Islam were held but this was a mere show which resulted in the decline of Sikandar Mirza. Even in the time of Ayub Khan such shows were arranged, especially in the last days of his regime, *hen brisk activity was noticed.
101. Coming events forecast that Mr. Bhutto would go a step, forward ; Friday would be declared as public holiday. This announcement would be welcomed both in Pakistan and in the Arab world, because Mr. Bhutto wants to emerge as a Hero of Islam but it is a mere emotional decision rather than enforcing Islam in the practical life. In spite of the fact that Friday would be declared as an holiday, yet everything in day to day life would be carried on contrary to the dictates of Islam. It is quite possible that Mr. Bhutto may take other important decisions on the basis of Islam. But the more important thing is to check as to what type of people are around him. His political party is full of landlords and capitalists, who for more than two decades stood in the way of Islam. This element is out to shatter Pakistan on the basis of different nationalities and territorial limits. As a matter of fact, this is an all out effort to bring in a socialism which Islam does not tolerate even for a moment.
102. The sum and substance of this would be that Muslims as a whole would be never serious about enforcing Islam. On the other hand, Islam is likely to be exploited. Those who are sincere to Islam would be ren--dered ineffective and would not thus be able to render solid service to Islam.
103. Another disadvantage would be that real problems of life would not be solved. It would re-act adversely on the masses as a result of which they would get away from Islam and that would provide a golden opportunity for communism to flourish and then there shall be no potent opposition.
104. Another imminent danger is that Islam would be exploited to its maximum ; very few will appreciate this; some political elements are likely to be crushed under the propaganda of Mr. Bhutto Maulvis would be accused of giving Fatwa only without rendering any solid service to the cause of Islam. It would be very painful when under such circumstances certain political elements would co-operate with Mr. Bhutto on political and religious basis. Those who would like to oppose would be nowhere. No--body believes that the real purpose of inviting Imam of Masid-i-Nabvi was to provide a cover to socialism.
105. The assessm ent of facts shows that the general elections would take place by the end of 1976.
106. Quite possible that after the Budget Session, National Assembly, is dissolved on the ground that majority of its members proved to be worthless and the nation must, therefore get a chance to elect up--right persons. Then the election campaign would start and it will be Islam all over the place.
107. God Almighty save us from such like intention of the Rulers.
108. All of a sudden there was good news of change in the Central Cabinet and that is how the largest Central Cabinet was formed. People would like to know why the number of Ministers had been doubled, whereas the size of the country has been reduced to half. A hat is the logic behind this?
109. The explanation being that as the country survived of severe crises, therefore, more ministers and advisors are required to put the country on the path to prosperity. Would this be a justification for the appointment of 27 Ministers. 5 Advisors and 2 Parliamentary Secretaries ? It is an admitted position that the entire burden is on the shoulders of the Prime Minister ; a Minister and Advisor has no say in the matter.
110. Why then this expansion ? It so appears that there was some unrest in Pakistan Peoples Party and more persons wanted their share in the Government. In order to satisfy them Cabinet had to be expanded ; still some influential persons remained aloof but to have relations with them, their nominee was taken in the Central Cabinet. The instance is that the son of Talib-ul-Maula; was taken as Minister for State. Those Deputy Ministers who proved true to their salt deserved promotion. Even for the future elections, inclusion of certain persons in the Cabinet became inevitable.
111. This shows that it was not possible for the Prime Minister to avoid the pressure on him and in order to please his friends, the Exchequer was made to suffer and this is how all the previous traditions were thrown over-board. Perhaps this is for the first time in the history of the country ; one comes .
112. Across a Minister as well as Deputy. There are special Advisors and Parliamentary Secretaries as well. These irregu--larities show that the Prime Minister is not afraid of public opinion and is under the impression that he is accountable to none. Events have so proved because no adverse re- action had been noticed from any quarter.
113. The present regime is very much similar to Yaha Khan's regime. When Yahya Khan liked a particular officer he was promoted forthwith. Lt.-General Hamid, his class-fellow and friend, was promoted to the rank of General. Yahya Khan's Military Secretary was a Brigadier. In order to promote Brigadier Ishaq, the post of Military Secretary was raised to that of Major-General. In his time there was an army of Major---Generals. Mr. Bhutto adopted the same technique, vis-a-vis his Ministers. Special Advisors were given the post of Deputy Ministers, Mr. Aziz Ahmad was taken as a Deputy Minister but for all intents and purposes he was a fulfledged Cabinet Minister. General Tikka Khan was appointed as Defence Advisor but he had all the pivileges of a Defence Minister and thus an Army of Ministers and Advisors came into existence.
114. One very special feature about the Central Cabinet is that no Minister or Deputy Minister was removed. Ayub Khan in the last days of his regime appeared to be very helpless. He removed one particular Minister one day and the same Minister was seen on the desk next morning. The reason for this was that some political well-wishers of Ayub Khan would see him in the intervening time and explain to him that the Minister removed was likely to join the opposite camp and would thus be a source of constant .Trouble for him. On this Ayub Khan would recall order of removal. Mr. Bhutto sacked one Deputy Minister but the next morning the same gentleman was being mentioned in the Broadcasts as Deputy Minister again. The wrath which led to the removal of J. A.
115. Rahim within a split of second appears to be dying out. It so appears that now the time for decline is fast approaching.
116. The removal of Khuda Bakhsh Bucha and Feroze Qaiser and their replacement prove beyond any shadow of doubt that their policies were utter failure. The position of the Cabinet is somewhat similar to that of pack of cards which on account of constant re-shuffling lost its glaze. With the exception of one or two persons, the rest of the members of the Cabinet are below average. The result is that the administration of the country has gone to dogs.
117. After all, masses must be made to pay some price for the wrong selection.
118. The Legislature acted by the promulgation of Immigration Ordinance which after having come into operation was repealed. The reason for this appears to be that no one realised its implication.
119. It is an admitted position that Pakistan needs foreign exchange and those who are working abroad and send remittances to their country, contribute an important part of the foreign exchange. In the days of Ayub Khan such remittances carried 20 % bonus. On account of this attraction huge sums were sent to Pakistan through legal channel. Those responsible for Immigration Ordinance instead of giving any bonus imposed 20 % tax. This blander caused the Pakistan Exchequer loss of hundred crores of rupees and ultimately the Ordinance had to be rescinded but the country is still undergoing the loss. Those Pakistanis who are residing abroad have stopped banking with Pakistan Banks for the fear that no one knows any time, any law, may be enforced on account of which their funds be frozen. The Government thus lost confidence as a result of which illegitimate ways and means are being encouraged.
120. Surprisingly enough, even the Prime Minister did not realise the danger. In one of the speeches he said that he was aware of illegal transactions which were going on and, therefore, it was in the interest of Pakistan to impose 20 % tax. This speech gave an impression that Mr. Bhutto had analysed the entire situation but three days after the Ordinance was rescinded and public was taken by surprise.
121. The most interesting thing about the Ordinance. Is that no one is prepared to take the responsibility for this Ordinance. Responsible officials of the State of Pakistan say that they were never consulted and they became aware of the Ordinance one fine morning when it came in the newspapers. The immigration people also plead ignorance. Even the Ministry of Law denied any knowledge about this Ordinance. After all, the Ordinance before its enforcement must have come before the Central Cabinet. No one realised that this would create havoc.
122. Some newspapers wrote editorials on - the repeal of this Ordinance and praised the Government for taking a democratic step. Is it not the worst type of flattery? Is it a democratic way to rule through Ordinance? Could blindness be termed as democracy?
123. This is the type of democracy which has been inflicted on us now--adays.
124. The last article is "Ejtehmai Jedo Jehed ki kahai---. Even this article was criticised by the learned Advocate-General as prejudicial report, but not with that emphasis which he laid on the two previous articles. There is no need to paraphrase this article in extenso, nevertheless, it is necessary to give gist of it. The article mainly deals with the freedom of Press. The sum and the substance of the article is that the freedom of Press had been completely ruined. There is no free Press in the country. It is, therefore, necessary to start a movement in support of it. The author then deals with the consequences of curtailing the freedom of Press and, is of the view that a civilised society cannot flourish and survive without a free Press and that in the democratic type of Government Press plays an important role and provides a connecting link with the public and the Government and if such link is broken, the masses lose confidence in the Government. The result is that the Government have no idea about the feelings, sentiments and even the legitimate demands of the masses and that such a situation creates complete chaos, because then the Government is accountable to none. For the solidarity of Pakistan, freedom of speech and free Press have- extraordinary importance.
125. The author then gives instances how freedom of Press was completely crushed during the last four years. The declarations of 17 newspapers and magazines were cancelled and the presses were forfeited. Even the Editors were detained under the Defence of Pakistan Rules. Publishers and printers were compelled not to publish those magazines which have different views (which do not see eye to eye with the Government). Even the offices of the newspapers were raided and the staff was harassed. The Government controlled the distribution of newsprint. The prices of the newspapers shot up as a result of which the public could not buy the newspapers. Press and Publication Ordinance was enforced which gave unlimited power to the Government. In spite of the fact that the Ruling party promised that on coming into power it shall repeal black-laws, the laws were made more rigid.
126. The author then makes an appeal to persons of all walks of life that for the solidarity of the country and for protection of their rights they should organize and form committees and sub-committees all over the country and then suggests what steps should be taken to restore the freedom of Press.
127. The necessary steps in the form of a resolution contain the following features To prepare a comprehensive scheme for the freedom of Press ; to write against obscenity and immorality ; to dissolve the Press Trust ; to hand over the newspapers to the workers ; public struggle for the abolition of News Print Control Ordinance ; to give monetary, legal and moral support to those journalists who fought for freedom of Press ; to fight for repeal of those Press laws which curtailed the liberty of Press ; and finally to make the Gov--ernment realise its illegal and improper actions.
128. At the end of this article, the author gives the names of the signatories of the declaration.
12. We now proceed to examine the contention of the learned counsel for .The appellants that none of the articles comes within the purview of prejudicial report' hence their conviction and sentences are illegal.
129. In this sequence it may be further observed that the learned defence counsel did not avail of any of the exceptions mentioned in the proviso to sub-rule (5) of rule 49 of the Defence of Pakistan Rules, 1971. His sole contention was that none of the articles exposed any of the appellants to a penal action. The three articles were written in good faith ; the author pointed out certain defects and basic requirements of the hour to the notice of the Government and for an action like this the Government should have felt obliged rather than to prosecute them. It was further submitted that the purpose of the articles was to remove the defects by way of immediate reforms in accordance with the mandate of Qur'an and Sunnah ; this was in the interest of the nation, security of the country and for the smooth running of the Government.
130. Learned counsel supported his arguments by reference to the preamble of the Constitution of the Islamic Republic of Pakistan with special reference to Article 10. It was submitted that though this Article and few others dealing with fundamental rights stood .Temporarily suspended, nevertheless, the aforesaid Article guaranteed right to freedom of speech and expression and freedom of Press, subject to any reasonable restrictions, imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan. Our attention was then invited to Part VI of the Rules. This part deals with the definition of prejudicial acts and control of information.
131. To begin with, learned counsel referred to rule 42 which deals with the definitions. Sub-rule (6) defines `prejudicial act'. Under this, there is a long list of prejudicial acts but the learned counsel referred to sub-rules (b), (e) and (g) which are as follows;--
(6) "Prejudicial act" means any act which is intended or is likely
(b) to cause disaffection among, to or prejudice, prevent or interfere with the discipline, health or training of, or the performance of their duties by members of the Armed Forces or public servants ;
(e) to bring into hatred or contempt, or to excite disaffection towards the Government established by law in Pakistan ;
(g) to promote feelings of enmity and hatred between different classes of citizens ; After citing the above sub-rule, learned counsel referred to the correspon--ding sections of the Pakistan Penal Code which are sections 131, 124-A and 153-A, respectively. Learned counsel then, argued that the words used in sub-rules (b), (e) and (g) i. e. -'to bring, to cause, to excite' have different connotations. By way of illustration he referred to the word "disaffection" in section 124-A, P.
132. P. C. Explanation I, which includes "disloyalty and all feelings of enmity". According to him it was not disaffection simplicitor but must be of the type as defined in the above-mentioned explanation.
133. Learned counsel submitted that the basic requirement of law in determining the guilt or innocence of the appellants was to read each and every article in its entirety with reference to the context.
134. Learned counsel cited Ghulam Muhammad v. Punjab Province PLD 1976 Lab. 773In this case rules 32 and 213 read with rule 42 of the Rules came under discussion and it was observed;-- "Bringing the Government established by law into hatred or contempt and exciting disaffection towards it may be a 'prejudicial act' as defined in rule 2 of the Defence of Pakistan Rules. But every prejudicial act is not necessarily prejudicial to public safety or peaceful conditions. A prejudicial act may be prejudicial to the interest of an individual, to the party in power, to a Government, to sectarian harmony or also to public safety and tranquillity. Therefore, it is necessary for the authority detaining any person under rule 32 of the Defence of Pakistan Rules in the interest of public order to satisfy himself that the person concerned is likely, if not detained, to commit an act prejudicial to public order. If he has merely committed an act prejudicial to the Government, it does not necessarily follow that he will also jeopardize public order. It is evident from the utterances attributed to the detenu under ground (i) that he has levelled serious allegations against the present Government and the Prime Minister (vide sub-paragraphs a, b, c & e of the ground (f) and also warned the Prime Minister against a fate similar to that of Sb. Mujibur Rehman or even worse (vide clause (d) under ground (i).
135. Regardless of whether the allegations made by the detenu against the Government and the Prime Minister are true or baseless, they can at the most be characterized as prejudicial to the fair name of the Govern--ment and the political career of the Prime Minister. But the allegations do not spell out any threat to public safety or to the maintenance of peaceful conditions in the Province.
136. Further, it must be remembered that 'disaffection' towards the persons holding high offices in a party Government cannot constitute disaffection towards the 'Government established by law' and that mere criticism, however, strongly worded of the official acts or policy of Ministers cannot be restricted in the interest of public order." (Basu's Commentary on Constitution of India).
137. Reference was then made to M. Mansur Ali v. The State (1), where it had been observed;- "Viewed in the light of the definition of the terms `disaffection', `hatred' and `contempt', can the impugned resolution be construed as an act which was intended or was likely to bring into hatred or contempt or to excite disaffection towards the Government? Or was the resolution intended or likely to cause fear or alarm to the public or to any section of the public. The resolution was passed in the wake of large scale disturbances in the town of Pabna resulting from death of some people on taking poisonous wheat and Bhutta, rumours were afoot that they were being supplied by Government through ration shops and people were already stricken with fear and were alarmed. It does not appear from the record that any untoward incident took place after the resolution was passed. The resolution read as a whole conveys the impression that the members of the legal profession conscious of their role as leaders of public thought betook themselves to the task of apprising the authorities of the seriousness of the situation so that necessary actions may be taken speedily. While expressing themselves through the resolution, they no doubt employed strong and bitter words here and there but such words cannot be considered in isolation and construed as seditious. !n a democratic country, such as Pakistan was claimed to be at the time the resolution was passed, people's right to express themselves freely and, if need be, strongly and even bitterly against what were considered to be lapses of the Government could not be denied, so long as such expression did not degenerate to mere abuse tending to rouse people's emotions to a pitch at which they might resort to violence."
138. The purpose of citing the aforesaid authorities was that according to the learned counsel it was necessary to consider the impact of the articles on the, mind of the public at large. Learned counsel submitted that the prosecution has not produced any evidence to show that after the publication of the articles any law and order situation arose.
139. Learned counsel cited two other cases from the Erstwhile High Court of East Pakistan Tofazzal Hussain v. Province of East Pakistan (2) and Fazlul Haq v. The State (3). In the former case reference was made to another case (The Sangbad v. The Province of East Pakistan), where it was observed;-- "...In construing the offending article one must read it as a whole in a fair, free and liberal manner and not in any narrow-minded or sectarian way, and further that it was not permissible to pick out isolated words or sentences from one or the other place of the said article or publi--cation, and then, so reading it one had to judge what effect the article or publication as a whole would have upon the mind of an average reader."
140. The relevant portion in the latter case reads as under;-
(1) 1970 P Cr. L J 818(2) PLD 1965 Dacca 479
(3) PLD 1971 Dacca 154 "Mr. Nurul Alam, learned Advocate appearing on behalf of the petitioner contended that the speech in question was not intended to create feeling of disaffection, hatred and contempt or to promote feelings of enmity and hatred between different classes of citizens or to cause fear or alarm to the public or to any section of the public; but was merely intended to bring to the notice of the Government certain grievances in the economic and political spheres with a view to seek their redress and even if strong words were used here and there the speech read as a whole cannot be construed as prejudicial act within the meaning of clauses (e), (g) and (h) of sub-rule (6) of rule 41 of the Defence of Pakistan Rules."
141. Learned counsel then cited Rornesh Thappar v. The State of Madras (1) and submitted that freedom of expression was a very valuable right ; such a right could be curtailed only in exceptional and sparing circumstances. Learned counsel then read paragraph 11 from the aforesaid judgment and submitted that "criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the Press, unless it is such as to undermine the security or tend to overthrow the State". Reference was made to another reported case Nikarendu Dutt Majumdar v. Emperor (2). In this case, the Court examined the scope and operation of rule 34 (6) (e) of the Defence of India Act, 1939, as well as the law relating to sedition. Learned counsel relied on the following observations made by the Court at page 27 "There is an English saying that hard words break no bones, and the wisdom of the Common law has long refused to regard as actionable any words which though strictly and literally defamatory, would be regarded by all reasonable men as no more than mere vulgar abuse. Abusive language even when used about a Government, is not neces--sarily seditious, and there are certain words and phrases which have so long become the stock-in-trade of the demagogue as almost to have lost all real meaning. The speech now before us is full of them, and, if we hesitate to indicate those which we have in mind, it is only because we are unwilling to increase further the circulation of a debased or counterfeit currency. But we cannot regard the speech, taken as a whole, as inciting those who heard it, even though they cried `shame' `shame' at intervals, to attempt by violence or by public disorder to subvert the Government for the time being established by law in Bengal or elsewhere in India. That the appellant expressed his opinion about that system of Government is true, but he was entitled to do so ; and his reference to it were, we might almost say, both common place and in common form, and unlikely to cause any Government in India a moment's uneasiness. His more violent outburst were directed against the then Ministry in Bengal and against the Governor in Bengal in his political capacity, but we do not feel able to say that his speech whatever may be thought of the form in which it was expressed, exceeded the legal limits of comment or criticism.
(1) A h R 1950 SC 124(2) AIR 1942 FC 22 We do not wish it to be supposed that we treat lightly the offence of sedition in the sense in which we have endeavoured to define it, it is a grave offence, a prosecution for which is a formidable weapon in the hands of the Government, but for that very reason it is all the more necessary to remember that opinions, and even the violent expression of opinions, do not necessarily fall within it. No doubt the occasion and circumstances of a speech are to be taken into consideration, a speech addressed to excitable and perhaps ignorant men may have results which would not follow in the case of an educated audience. We think that the appellant, as a member of an important Legislature, was under the greater obligation to choose his words with discretion, and though we do not think that his speech amounted to sedition, we do not say that it may not have been open to criticism on other grounds. Nor, we hope, are we exceeding our functions, if we observe that in grave times like the present, with the enemy at the gate, language which might not attract attention at other times may today or tomorrow bear a very different significance."
142. The next point urged was that the prosecution of the appellants was mala fide. This fact stood proved beyond any shadow of doubt, because the Government. At no stage took any action under the Press and Publication Ordinance, 1960. In case the appellants had committed any offence, whether under the penal law of the land or under the emergency provision or that of the Press and Publication Ordinance they could have been proceeded against and action could be taken against them either by cancellation or declaration or forfeiture of the security ; and the least which could be done by the Government was to forfeit the March Issue of Urdu Digest in which objectionable articles had been published.
143. To sum up the submissions of the learned counsel for the appellants, his emphasis was that the articles must be read in their entirety with reference to the context and the prevailing circumstances. They should be interpreted liberally keeping in view the purpose of the extraordinary legislation like the Defence of Pakistan Ordinance and the Rules framed thereunder.
144. The other points to be noted in continuation of the aforesaid submissions are the intention of the author and the reaction of the public or a section of the public by way of any overt act.
13. Mr. D. M. Awan, learned Advocate-General opened his arguments by dealing with the first article ---Hamari Foji Hi Comman--- and submitted that this article was of far-reaching effect. It was not open to the appellants to discuss the Army High Command, posed questions, gave answers and then called for the explanation of the Government about the reorgnisation of the Command.
145. Learned Advocate-General submitted that this was a sensitive issue. Even otherwise it was a matter of top secret and the Government, therefore, was not expected to give any explanation to the public.
146. Learned Advocate-General then referred to rule 42 (6) of the Rules and while comparing it with section 124-A, P. P. C., he submitted that the scope, purpose and operation of the Defence of Pakistan Rules was much more vast than that of the penal provisions. Relying on Bundoo and others v. Emperor AIR1943A11.15learned Advocate-General submitted that intention was not necessary ingredient and relied on the following observation made in the aforesaid case ;--.
147. "There can be little doubt in may judgment that the act with which the applicants are charged would, standing by itself, have fallen either under cl. (i) or cl. (g) of R. 34, Defence of India Rules, because inten--tion is not a necessary ingredient of a prejudical act as contemplated by R. 34 (6)
148. (f ) and (g). It is enough that the prejudicial act is likely to promote feelings of enmity and hatred between different classes of His Majesty's subjects or is likely to cause fear or alarm to the public or to any section of the public. I would not, therefore, accede to the first contention raised on behalf of the applicants."
149. Dealing with the remaining two articles, he addressed arguments regarding the scope and operation of rule 42 of the Rules. While referring to the case of Mian Tufail Muhammad v. The State (1), he submitted that "no exception can be taken to an article or a speech so far as it sets forth in chronological sequence the various landmarks in a country's political struggle. But if the writer or speaker does not content himself with a mere recapitulation of events and makes comments which indicate that his purpose was not merely to appeal to the interest of his readers in a historical retrospect but to evince the further object of inflaming opinion against the Government so as to create hatred and contempt or to excite diaffection towards it, his speech will fall within the mischief of law."
150. Learned Advocate-General further submitted that the mere fact that no action was taken against appellants under the Press and Publications Ordi--nance, 1960, would not go in their favour nor would it prove their innocence, because it was open to the authority concerned to take whatever action it thought fit keeping in view the gravity of the situation, and in the present case, the articles written and published by the appellants were so serious that they called for immediate penal action and, therefore, absence of any pro--ceedings against the appellants under the Press and Publications Ordinance was of no consequence.
151. In support of the above contention, learned Advocate-General relied on Anontanath Chattarji v..
152. Emperor (2), where it had been observed;-- "It does not appear, however, that there is any corresponding prescription by the Government of this province and, in any case, it is 'not a relevant fact in the case of a prosecution under R. 39 and ought not to have been brought to the notice of the Court. Under R. 39 it is for the Court and not for the Provincial Government to determine whether or not a document is prejudicial."
153. Learned Advocate-General then cited Niharendu Dutt Majumdar v. Emperor (3) and submitted that the evidence brought on the record by the prosecution clearly proved that each of the articles appearing in March Issue of Urdu Digest came within the mischief of prejudicial act". He submitted that the articles were highly objectionable and provocative ; their object was "to stir up opposition to the Government and to bring the administration of justice into contempt and to incite the people to insurrection and rebellion." Learned Advocate-General relied on the following passage in the aforesaid judgment :-
(1) PLD 1973 Lah. 747 (2) AIR 1943 Pat. 389
(3) AIR 1942 FC22 "Sedition embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the Government. The objects of sedition generally are to induce discontent and insurrection, to stir up opposition to the Government and to bring the administration of justice into contempt, and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or disaffection, to create public disturbance, or to lead to civil war, to bring into hatred or contempt the sovereign or Government, the laws or theconstitution of the realm and generally all endeavours to promote public disorder."
154. Learned Advocate-General wound up his arguments by submitting that freedom of Press does not imply a licence to incite violence or to threaten peace and safety. In support of this, he relied on an observation made in Ghulam Ahmad v. Punjab Province and others PLD 1976 Lah. 773
14. In order to determine as to whether the three articles or anyone of them amounts to prejudicial report or not, it is necessary to advert to the Defence of Pakistan Ordinance under which the Defence of Pakistan Rules were framed. According to the preamble, the Ordinance was pro-- mulgated to provide for special measures to ensure the security, the public safety and interest and the defence of Pakistan and for trial of certain offences. The preamble further states that whereas Proclamation of Emergency issued on account of Pakistan being threatened by external aggression is in force and whereas the national interest of Pakistan in relation to the security of Pakistan requires Central Legislation in the matter, therefore, in pursuance of the Proclamation of 25th day of March, 1969, read with the Provisional Constitution Order and in exercise of all powers enabling him in this behalf, the President is pleased to make and promulgate the following Ordinance.
15. Chapter I deals with the title, extent and application and commence--ment of the Ordinance and section 2 contains the definitions of certain terms used in this Ordinance. Chapter II deals with the Emergency Powers and section 3 deals with the powers to make rules. It is a fairly long section, but subsection (1) is worth reproducing because according to this, the rules to be framed by the Central Government are for ensuring the security, the public safety and interest and the defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operation or prosecution of war or for maintaining supplies and services essential to the life of the community. So while examining as to whether anyone of these articles amounts to prejudicial report, the aforesaid factors are to be kept in mind.
155. Fundamental rights guaranteed by our Constitution are very valuable and those could only be sacrificed, curtailed or suspended in the largest interest of the State, which would be its security and solidarity. When the appellants were being tried and prosecuted these rights had been temporarily suspended. Yet the main question to be determined is whether the appellant incurred any criminal liability by writing and publishing these articles. No hard and fast rule can be laid down for the test as to what would amount to prejudicial report. But the surrounding circumstances play an important role ; for instance, an ordinary act of mischief or nuisance of blocking the highway may amount to a serious offence if done when the country is face to face with national crises or aggression from within or outside.
156. So some of the important factors to be noted in this sequence are the state of circumstances prevailing when these articles were written ; intention of the author and the repercussion the articles had on the mind of the public.
157. The prosecution had not led any evidence to show that at the time of writing and publishing these articles there was any threat to the security of the country either from outside or within. Nor any evidence had been produced to show that after the articles had been published there was any demonstration against the Government.
158. Although it was the discretion of the Government to proceed against the two appellants under the Press and Publication Ordinance, but the fact that no action was taken against them under the aforesaid Ordinance definitely goes in favour of the appellants.
159. The sum and substance of these articles is that the author was dis--appointed with the planning and working of the Government. In the articles the author has attempted to describe as best as he could as to what had happened in the past, was happening and may happen in future. There was nothing objectionable in saying so. Reference in this connection be made to the following observation in re : S. S. Batliwala (1);-- "It is quite possible to express dissatisfaction with the Government without exciting dissatisfaction and this speech will have to be judged not by the political views of the accused or his party but by the purpose of the accused in expressing those opinions in the way he did. Fair criticism of the Government is no offence, but the question the Court had to decide was whether the speech of the accused indicated an intention to promote hostility and ill-will towards the Government. If a person attempts to bring the Government into hatred or contempt or to excite disstisfaction towards it, force and violence are encouraged which may lead to a conflict with the authorities with the certainty that there will be a grievous loss of life."
160. The following paragraph from Nageswar Prasad Sharma and others v. Emperor (2) is also relevant in this sequence :- "Lord Fitzgerald too in the case of Regine v. Sullivan (1868) 11 Cox. Cr. Cas. 44 showed what should be the guiding principles in inter--preting an article of the kind which we have to consider. We must not look to single sentences or isolated expressions but take the article as a whole- and give a full, free and generous consideration and amply deal with it in a fair and liberal spirit, not picking out objectionable sentences or strong words used, nor should undue importance be given to inflated and turbid language."
161. Similarly, it would be useful to refer to Dirk De Jonge v. State of Oregon (3 ), where it has been observed :- "Freedom of speech and of the Press are fundamental rights which .Are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution. Gitlow v. New York, supra (268 U. S. p. 666, 69 L. Ed. 1145, 45 S. Ct. 625) ; Stromberg v. California, supra (283 U. T. p. 368, 75 L. Ed.
162. 1122, S 1 S. Ct. 532, 73 A L R 1484) ; Near v. Minnesota, 283 U. S. 697, 707, 75 L. Ed. 1357, 1362, 51 S. Ct. 625 ; Grosjean v. American Press Co. 297 U. S. 233, 243, 244, 80 L. Ed 660, 665, 666, 56 S. Ct. 44.1. The right of peaceable assembly is a right cognate to those of free speech and free Press and is equally funda--mental. As this Court said in United States v. Cruiksharnk 92 U. S. 542, 552, 23 L. Ed. 588, 591 : `The very idea of a Government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.'
163. The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions-Principles which the Fourteenth Amendment embodies in the general terms of its due process clause. Hebert v. Louisiana, 272 U. S. 312, 316, 71 L. Ed. 270, 272, 47 S. Ct. 103, 48 A L R 1102 ; Powell v. Alabana, 287 U. S. 45, 67, 77 L. Ed. 158, 169, 53 S. Ct. 55, 84 A.L.R. 527 ; Grosjean v. American Press Co. 297 U. S. 233, 80 L. Ed. 660, 56 S. Ct. 444, supra.
(1) AIR 1933 Mad. 758 (2) AIR 1925 Pat. 99
(3) 299 U. S. 353 (366)=81 L. Ed. 278 These rights may be abused by using speech or Press or assembly in order to incite to violence and crime. The people through their legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free Press and free assembly in order to maintain the opportunity for free political discussion, to the end that Government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional Government."
16. To sum up, a prejudicial report must, therefore, contain some germs of malice-cum-violence, so as to incite the public or a section of public to create law and order problem by resorting to unconstitutionall methods.
164. As already observed both the appellants are journalists by profession. At times their criticism became severe and harsh but it is neither destructive nor malicious ; on the other hand it is suggestive and constructive. The language used by the author is chaste and refined. The arguments given in support of the views are weighty, effective and supported by facts and figures.
165. Some important suggestions bad been made. Government in power should not be so sensitive so as not to stand the criticism which is bona fide. Moreover it was open to the Government to rebut and challenge those facts or allegations which were false and frivolous.
166. The Press is a precious link between the public and the Government. Utmost care should be taken to preserve this link. Once it is broken, all contacts extinguish. Such a situation can cause grave consequences and may even prove serious for the very existence of the State. Therefore this link must be kept intact. Hence, a duty is cast upon the Government as well as on the Press to be reasonable and remain within the limits, which are essential for preserving the Constitution and solidarity of the State. Care must also be taken by the Press to strictly observe Code of Professional Ethics and not to indulge in mudslinging.
17. For the foregoing reasons, we are of the view that the three articles do not come within the ambit of prejudicial report. The prosecution and conviction of the appellants, therefore, is. Not in accordance with law. The appeal is accepted, the convictions and sentences of the appellants are set aside. They shall be set at liberty forthwith if not required in any other case.