1. This Rule was obtained by the petitioner Sheikh Fazlul Hague alias Moni who was convicted under rule 47 of the Defence of Pakistan Rules and sentenced to simple imprisonment for one year by Mr. Sultan Ali, Magistrate 1st Class, Dacca. He preferred an appeal which was dismissed, by Mr. K. F.
2. Akbar, Additional Sessions Judge, Dacca.
3. The petitioner was put on trial on the allegations that on 13-5-66 he delivered a speech in Bengali in a public meeting which was arranged by the Awami League at Paltan Maidan, Dacca. The speech was recorded in short-hand by a Government reporter and on the basis of the said record the Officer-in-Charge of Raman Police Station recorded one First Information Report and started a case. The said speech was said to be prejudicial act and as such came under the mischief of rule 47 of the Defence of Pakistan Rules. The petitioner pleaded not guilty to the charge under the aforesaid Rule. Both the Courts below were of the opinion that the speech was intended to create disaffection, hatred, contempt towards the Government and found the petitioner guilty.
4. 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. The relevant clauses of sub-rule (6) of rule 41 which defines "Prejudicial Act" are as follows: Rule 41 (6). `Prejudicial Act' means any act which is intended or likely.
(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 ; (h)to cause fear or alarm to the public or to any section of the public;"
5. The words 'hatred', 'contempt' and 'disaffection' occurring in the definition of the term 'prejudicial act' have not been defined in any of the statutes but they have been elucidated by judicial pronouncements. In the case of Queen-Empress v. Bal Gangadhar Tilak and another , Strachey, J. in his charge to the jury defined the word 'disaffection' as meaning 'hatred, enmity dislike hostility, contempt and every form ofto the Government' and stated that the whole question is one of the intention of the accused as to whether he intended to excite in the minds of the people feelings of disaffection or enmity to the Government or intended merely to excite disapprobation of certain Government measures. It was a case under section 124-A of the Penal Code wherein the gist of offence lies in exciting or attempting to excite disaffection against Government. The exposition of the law of sedition in the above case was approved by the Privy Council subsequently in the case of Emperor v. Sadashiv Narayan Bhalarao which was a case under rule 34(6) of the Defence of India Rules, clauses (e) and (g) of which defined a prejudicial act in the same terms as did clauses
(e) and (h) of rule 41 (6) of the Defence of Pakistan Rules. The words 'contempt' and 'hatred' were explained in the case of Sher Muhammad v. The Crown and also in the case of The 'Daily Eh an' .
6. In delivering the judgment of the Special Bench of the Lahore High Court in the case of Sher Muhammad v. The Crown, Cornelius, J. observed that the word 'contempt' in the active sense may be defined as 'the act of viewing another as mean, vile or worthless' and 'hatred 'a 'sustained feeling of bitter aversion or dislike generally combined with a desire to injure, destroy or get rid of its object'. The law relating to sedition in Pakistan was further considered by a Special Bench of this Court in the case of Tofazzal Hossain v. Province of East Pakistan and it was observed that "in order to determine if a particular publication is seditious or not it is to be seen what effect it is likely to produce in the minds of its readers and further that while construing an offending publication the same should be considered as a whole in fair, free and liberal spirit, without laying stress or emphasis on strong or irritating words used here and there". It is now to be seen whether in the light of the definition of the terms 'disaffection', 'hatred' and 'contempt' and the principle laid down regarding the construing of an alleged offending publication, in the cases referred to above it can be said that the impugned speech of the petitioner comes within the mischief of the words "Prejudicial Act" as defined in clauses (e) (g) and (h) of sub-rule (6) of rule 41 of the Defence of Pakistan Rules. It is now necessary to reproduce the alleged offending speech which is as follows :- "Respected President, brethren and friends, you have listened the speeches of different speakers.
7. Mr. Majibur Rahman the proponent of Six Points and the Leader of Awami League besides other prominent Leaders are in Jail.
8. What were in the Six Points for which the leaders were in Jail. The main characteristic of the Six Points is that there has been such an economic system prevailing in the country that the wealth of East Pakistan has been transferred to West Pakistan. Today hundreds of people of East Pakistan are starving. Today these people are going to be crippled and unemployed. The reasons for this is that the wealth of East Pakistan are not being distributed in East Pakistan. By this there grew a capatilistic class in West Pakistan. This country should have such a constitution where the rights of the people are recognised. We want that the people should take part. Our Government declared the proponents of this Six Points as traitors.
9. Friends, you have seen that during the War they have neglected East Pakistan. Today the people of East Pakistan should get chances in the Army.
10. Friends, we know that every year 60 % of the Military Budget is from East Pakistan. It is said that we1 2 3 4 5 have a big Army. But there is no army for the defence of East Pakistan. By Six Points East Pakistan should be self-supporting militarily. There should be para military forces. Sabur convened a meeting, Bhutto threw a challenge, today they have attacked our leaders. The meeting of Sk.
11. Majibur Rahman at Khulna received support of the people and for that reason he was arrested, but it was said that he was arrested under the Defence of Pakistan Rules. He wants to caution Ayub.
12. Look on Ben Bella and Soekarno, those who look into the problems of the common people or to their country . There is no great men today like them. What will be your condition, we have come to pray for our leaders. He has delivered in a meeting in Narayanganj that you would stick in Six Points, let us all come out for realisation of Six Points until rights of the people are recognised."
13. On a careful consideration of the above speech in fair, free and liberal spirit, it appears that the speaker was explaining the implication of 6-Point Programme of the Awami League and in doing so he was trying to point out the circumstances which impelled the Awami League to formulate its 6 Points. The speech started with a narration of the poverty of the people, the general state of unemployment and economic distress in the Province and according to the speaker these resulted from the flight of Capital from this wing and the disparity in the distribution of the wealth of the country between the two wings. The speaker then proceeded to say that although East Pakistan contributed 60% towards military budget, its needs in the matter of defence were being neglected and this was keenly felt during last war with India. It was further stated that although Sabur and Bhutto could attack the leaders of the Awami League, Sk. Mojibur Rahman was arrested for delivering speech at Khulna. Lastly the speaker asked the ex-President to take lessons from the fates of Ben Bella and Soekarno. It appears that the speaker was attempting in his own way to explain the 6-Point Programme of the Awami League and the causes that led to the economic disparity between the two wings of the country. No doubt he had warned the ex-President in rather strong terms but it does not seem to have been intended to villify him in any manner. At the relevant time admittedly, there was no ban on the Awami League and consequently its right to propagate its views on any burning issue of the country could not be denied. Democracy functions best in an atmosphere of free and frank discussion and if Pakistan was claimed to be a democratic country at the time when the speech was delivered, the right of the people to express themselves freely and frankly and, if need be, strongly and even bitterly against what may have been supposed to be lapses on the part of the Government could not be abridged. So long as such expression did not degenerate into mere abuse intended or calculated to rouse the emotions of the people to a pitch where from they might be tempted to take recourse to violence or to create chaos in the country or to disrupt the normal life of the people. The distinction between disapprobation of Governmental measures and abuse of Government may, at times, appear to be thin, but it is not illusory. In applying the law of sedition to an impugned writing or speech, the superior Courts of the country have consistently leaned towards putting a construction thereon which is in conformity with the changes effected by the passage of time in the political consciousness and the mental out-look of the people and in their ability to discern between appeal to passion and appeal to reason.
14. It does not appear from a reading of the speech as a whole that it was either intended or was likely to excite disaffection, hatred or contempt towards the Government 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 and consequently it cannot be construed as a 'prejudicial act', the doing of which is an offence punishable under rule 47 of the Defence of Pakistan Rules. It, therefore, appears that the conviction and sentence of the petitioner were bad in law and cannot be sustained.
15. The rule is made absolute and the conviction and sentence of the petitioner are set aside and he is acquitted of the charge.