1. ' GHULAM MUJAVDID MIRZA, he Punjab Government, Home Department, vide their Notification No, 1- 1/11-NPL-I11/82, published in the Punjab Gazette on 21st of April, 19.82, forfeited the book entitled "Tarikh-e-TasaWwaf"' written by Professor Yousaf Salim Chisti, edited by Dr. Muhammad Yousaf Goraya, Director, Ulema Academy, Auqaf Department, Punjab, Lahore. The reason was that the book contained material which was likely to create feelings of enmity, and hatred between different sects of the citizens of Pakistan within the meaning of clause (j) of section 24(1) of the West Pakistan Press & Publications Ordinance, 1963 (hereinafter referred to as the Ordinance).
2. ' This action by the Punjab Government was taken under section 39 of the Ordinance. All copies of the aforesaid book were forfeited with immediate effect.
2. The aforementioned notification has been challenged by Prof. Yousaf Salim Chishti (hereinafter to be referred as the author) and six others by means of the present writ petition under Article 9 of the Provisional Constitution Order, 1981, read with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, on the ground that it is without lawful authority and as such of no legal effect.
3. ' The six other petitioners are-Abdul Raoof Farooqi son of Sher Muhammad, Khateeb Jamia Masjid Noorani Qila Lachhman Singh, Lahore; Muhammad Saeed-ur-Rehman Alvi, son of Maulana Muhammad Ramzan, Editor, Weekly Khuddamuddin; Khurshid Ahmad, Khateeb, Jamia Masjid Ma'Noor, Poonchh House, Lahore; Mian Riaz-ul-Haq Farooq, Khateeb Jamia Masjid Asbrafia, Chowk Sant Nagar, Lahore; Qari Maqbool-urRehman son of Qari Muhammad Saeed, Incharge Madrissa Anwar-ulQuran, Tauheed Nagar, Lahore; and Mian Abdur Rehman son of Maulana Muhammad Ibrahim (deceased), Khateeb, Jamia Masjid Haji Rehmat Ullah, New Anarkali, Lahore.
3. After the admission of the writ petition, Markazi Adara Tahaffuz Haquq Ahl-e-Sunnat (Registered), Pakistan, Lahore and one Sahibzada Muhammad Saleem Hamad applied for being impleaded as party to the proceedings. Former's request was allowed subject to all just exceptions while in the case of latter, counsel for the parties agreed for his being impleaded as respondent.
4. Both were impleaded as respondents 2 and 3, respectively.
5. ' Thereafter Allama Syed Mehmood Ahmad Rizvi and Muhammad Abdul Haleem Qasmi filed C. M. 6 of 1982 and C. M. 7 of 1983, respectively, for being impleaded as party to the writ petition. They were not formally impleaded, but their counsel were heard.
6. ' I don't think, it is necessary to refer to all the interim orders. However, I would like to mention orders dated 3-11-1982 and 23-11-1982. On 3-11-1982, I was constrained to observe that the Government was not taking the matter seriously because of lack of interest on the part of the Office of the Advocate-General.
7. ' On 23-11-1982, I directed the learned counsel for the petitioner as well as for the respondents to reformulate their contentions because the Advocate-General entered appearance on the said date. Even on 23-11-82, no written statement was filed on behalf of the Government. I, therefore, directed the Advocate-General to file the written statement within a fortnight.
8. ' The petitioners' case is that Professor Yousaf Saleem Chisti is the author of the book. The remaining petitioners claim to be religious scholars. They are busy in the sacred duty of imparting Islamic education to the masses. When they came to know of the impugned action of the Government, they were shocked. Therefore, they joined the author as petitioners.
9. ' According to the petitioners, the purpose of the book is to introduce to the Islamic Ummab as to what is meant by "Tasawwaf". With this in view, the author has given the history of Islamic "Tasawwaf" and non-Islamic. According to the author, the former is for spiritual uplift of mankind and communion with Almighty Allah, whereas the latter suffers from number of weaknesses and shortcomings.
10. ' While dealing with "Tasawwaf", the author has taken care and caution to remain within the limits of Holy Qur'an and teachings of Prophet Muhammad (peace be upon him).
11. ' The teachings of Qur'an and Sunnah have been divided into following
(1) Iman Bil Ghaib, i,e,
(a) to believe in the existence and oneness of Allah with all His Powers, Authority and Potentials;
(b) to believe in the existence of Angels (vg:;)1/4.) and the system of Revelation (csa...9);
(c) to believe in the truth of all the revealed Books of Allah;
(d) to believe in the truth of the Massengers of Allah; and
(e) to believe in the day of Reckoning, life hereafter, the Heaven and Hell. This aspect of "Din" is commonly known as "Ilam-i-Aqaid"4) or "Ilam-ul-Kalam"144).
(2) Noble Deeds (t3Lo J1.4.r.1). This section covers the vast field of practical life of man in this world and lays stress on Prayers, Fastings, Haj, Zakat, Jihad, Fair dealings with other people (A-J1 4.332..) and provides guidance for man in his economic, social as well as international life. This part of Islam is the subject of Fiqah.
(3) (i) Love with Allah and the desire to see Him;
(ii) Love with the Holy Prophet; and
(iii) Inculcation of spiritual and mental qualities like Tawakkal, Ihsan, Ikhlas and Sabar. This has been described as Tazkiya-i-Ikhlaq by some authors. This category of the Islamic injunctions is the subject-matter of Tasawwaf.
12. ' After dealing with the aforesaid three sections, the petition deals with as to what happened when Islam spread over the world and different Muslim States came on the map of the world. This widened the scope of preaching of Islam. Some of the scholars took one particular section out of the three mentioned above, while others attended to other categories according to the circumstances and need of the hour. This led to the creation of separate schools of thought.
13. Scholars and Fuqhas dealt with the first two sections referred to above, whereas it were Sufia who took upon themselves the task of purging the human soul by means of different methods and for this matter they made sure never to cross the limits laid down by the Holy Qur'an and Sunnah.
14. ' The petitioners claim that credit goes to Sufia and Mashaikh in not only reforming the society of their time but also to lay down guidelines for the future. Those provide food for spiritual thought, peace to human soul and road to salvation. This can be attained through Zikar, Mujahida, Riazat and Maraqbat. For the services rendered by the Sufia the Muslim Ummah shall remain indebted to them for all times to come.
15. ' The petitioners claim that the author has written this book keeping in view the above-mentioned background. He has paid tributes to the Sufia-i-Ikram.
16. ' Learned counsel appearing for the petitioners drew my attention to page 6 of the book where the author has expressed his view about Taswwaf in the following words: {{URDU TEXT}} ' Thereafter my attention was invited to page 100 of the book where the author has given two categories of Tasawwaf as under :- {{URDU TEXT}}_ ' Now I proceed to deal with the contentions raised by the learned counsel for the petitioners.
17. ' The first submission was that nowhere in the book the author has been disrespectful to any Muslim Saint. According to the learned counsel, on completion of the manuscript the same was handed over to the Auqaf Deptt. It was edited by Dr. Muhammad Yousaf Goraya, Director of Ulema Academy, Government of Punjab, Lahore, who took no objection to any part of the book.
18. ' The manuscript was also shown to Maulana Muhammad Bakhsh Muslim, a well-known scholar of Brelvi school of thought. He went through the manuscript. Maulana made certain suggestions by way of additions, alterations and subtractions. Those were duly incorporated in the book. The book was then sent to the Press.
19. ' Learned counsel submitted that the book was liked by all schools of thought as a result of which the author was paid rich tribute by renowned scholars. In support of this he drew my attention to certain cuttings and extracts from different newspapers and journals (Annexs. 'A' to 'H'). I have taken note of those but I don't think it is necessary to reproduce or mention those.
20. ' The sum and substance of all of this was that the learned counsel tried to establish that there was no legal justification to order forfeiture of the book.
21. ' Learned counsel further submitted that there was no material in the book which was or is likely to create feelings of enmity, and hatred between different sects of citizens of Pakistan.
22. ' It was argued that while deciding as to whether the book came within the mischief of section 24(1)
(j) of the Ordinance, the Court must read it as a whole in fair, free and liberal manner and not in narrow-minded or sectarian way. Reliance in this respect was placed on The Sangbad Newspaper and another v. The Province of East Pakistan (1) and Mahmud Ahmad Abbasi v. Governor of West Pakistan, Lahore (2).
23. ' While dealing with the legal aspect, the learned counsel submitted that the impugned notification was arbitrary. Respondent No, I did not mention any ground(s) so as to bring the case of the petitioners within the mischief of section 24(1)( j).
24. ' It was submitted that the author was not given any notice to the effect that the book contained any objectionable passages so as to attract the aforesaid provision of the Ordinance. In support of this contention, the learned counsel relied on the case of The Daily Ehsan (3). Reliance was also placed on Mahmud Ahmad Abbasi v. The Administrator of Karachi (4).
(1) PLD 1958 Dacca 324 (2) PLD 1966 (W. P.) Kar. 383
(3) PLD 1949 Lah. 282 (4) PLD 1961 (W. P.) Kar. 129 ' Learned counsel also took up the plea of mala fide and argued that the author has been subjected to uncalled for discrimination. There are other books in the market on the similar subject, which are really objectionable and which come within the purview of section 24(1)(j). These are in the knowledge of the Government yet no action has been taken with regard to them. In this connection, the learned counsel drew my attention to Annexures 'K', 'L' and 'M'.
25. ' Another` point urged was that the action in this case had been taken by certain Officers of the Home Department, who were not competent to do so. The matter was never brought to the notice of the Governor. The impugned notification, as such, is ab initio void.
26. ' The learned counsel submitted that the Advocate-General should not now be permitted to bring to the notice of this Court the grounds justifying the forfeiture of the book.
27. ' Concluding his arguments, learned counsel for the petitioners submitted that while tracing the history of Tasawwaf the author has given references of renowned Sufia-i-Ikram. Most of the time he has dealt with the historical events dealing with the lives, works and services rendered by the Sufia-iIkram for the service of humanity. It was submitted that so far as the author and his views were concerned, he has been very respectful to those noble personalities. It was submitted that the author himself was a humble devotee of Hazrat Data Ganj Bakhsh Ali Hajveri (Rehmatullah Eleh). In such circumstances, the question for forfeiture did not arise.
28. ' The respondent No, 1 did not submit any written statement in spite of the fact that the Advodate- General was asked to do so. They only filed written reply/comments under the signature of the Advocate-General.
29. ' The learned Advocate-General raised number of preliminary objections. His first objection was regarding misjoinder of the parties. It was next contended that the petitioners had no locus standi to file the writ petition.
30. ' It was further submitted that subject to the aforesaid two objections, the petitioners, if still aggrieved, bad an adequate and efficacious remedy, which was right of appeal provided under section 48 of the Ordinance.
31. I would like 4o deal with these objections straightaway. The first objection has some force but not to the extent that the petition is to be dismissed on account of this, the reason being that petitioner No, 1 is the author of the book. He is certainly an aggrieved person. As such, he A has a right to come to this Court. So far as the other petitioners are concerned, I don't think they are either necessary or proper party. They are there to provide moral support to petitioner No,
1. Therefore, their names shall stand deleted from this petition.
32. No doubt, the Ordinance provides right of appeal under section 48, but so far no tribunal has been constituted. The petitioner is, therefore, not expected to wait till the tribunal is constituted or to file a petition before a non-existing tribunal. The only forum available to him is High Court.
33. ' The learned Advocate-General laid emphasis on his next contention, which was that the book had been purchased by the Government. It was the Government property. The Government, as such, were well within their right to do whatever they liked. He said that the Government were fully competent to pass any order they fit. Hence the impugned notification was intra vires. The Advocate-General placed on record a photo copy of the letter signed by the Legal Advisor, Riaz Keyani, for Administrator of Auqaf, Punjab, Lahore addressed to the Advocate-General which is to the following effect:- "The Auqaf Department purchased the manuscript of the book `Tarikh Tasawaf' written by professor Yousuf Saleem Chishti for a sum of Rs, 5,000, which was duly paid to the Author. The Author has, therefore, got nothing to do with the book as it is the sole property of the Auqaf Department."
34. ' Learned counsel for the petitioner vehemently denied this assertion. He submitted that no such transaction ever took place between the author and the Government. As a matter of fact, the Government paid Rs, 5,000 to the author as reward for writing the book. He further submitted that in case the Government had actually purchased the book then they had to go through the procedure laid down in sections 14 and 15 of the Copyright Ordinance of 1962, which deal with assignment of copyright and mode of assignment, respectively.
35. ' This stance of the Advocate-General is preposterous. In case the Government were the owner of the book then question of forfeiture did not arise. Hence there was no need of the impugned notification. The word, "Forfeiture" has been defined in the Oxford English Dictionary Volume IV of 1961 Edition, to mean- "The fact of losing or becoming liable to deprivation of (an estate, goods, life, an office. Right, etc.) in consequence of u crime, offence, or breach of engagement."
36. I am, therefore, not prepared to hold that the book was property of the Government.
37. ' The objection of the learned counsel for the petitioner that the matter was not brought to the notice of the Governor of the Punjab has also no force. The Advocate-General stated that the summary was put up before the Governor. I have no reason to doubt the statement of the learned Advocate-General at the Bar.
38. ' I have also heard the learned counsel appearing on behalf of the two respondents, who were brought on the record subsequent to the filing of the writ petition, as well as counsel for those applicants who were not formally impleaded as party to the proceedings. Respondent No, 2, Markazi Adara Tahaffuz Haquq Abl-e-Sunnat also filed written statement. They submitted that the forfeiture of the book was justified and hence the impugned notification was lawful. The respondents fully supported the Advocate-General on the abovementioned contentions.
39. ' The Advocate-General argued that the notification was not vague. The action was taken under section 39 of the Ordinance because the book came within the mischief of section 24(1)( j) of the Ordinance. This was sufficient ground to proceed against the petitioner. The Government were satisfied that the book created feelings of enmity, and hatred between different sects of citizens of Pakistan. In support of this the Advocate-General submitted that there were public demonstrations when the book came in the market. That created law and order problem. The Government, as such, had no option but to forfeit the book.
40. ' According to the Advocate-General, the author had not only created feelings of enmity, and hatred between different sects of citizens of Pakistan, but he also caused irreparable damage to the name and reputation of renowned Sufia-i-Ikram.
41. ' The Advocate-General, during his arguments, referred pages 483, 484, 507, 508, 509, 517, 518 and 519 of the book. He argued that these pages are really offensive. While summing up his contentions the Advocate-General submitted that according to him the entire book was objectionable.
42. ' The learned counsel for the respondents and others supported the Advocate-General on this ground as well. They also drew my attention to pages 9, 10, 13, 14, 69, 72, 73, 74, 78, 80, 86, 269 and
270. Certain portions on these pages, according to them, were highly objectionable. They relied on two decided cases-Muhammad Hayat v. The Crown (1) and Syed Saeed Hassan v. Pyar All and 7 others (2).
43. ' Both, the Advocate-General and the counsel for the other respondents, took up the position that it rested exclusively with the Government to decide as to whether there was enough material which created feelings of enmity and hatred and brought the matter within the mischief of section 24(1)( j ). According to them, the test was subjective and it wholly vested with the Government. This Court was not competent to probe into the matter and to examine the material which the Government considered fit to pass the impugned notification.
44. ' The preamble of the Ordinance shows that its purpose is to amend and consolidate the law relating to press and publication. It supersedes all previous statutes regarding the printing presses, newspapers, books and other publications.
45. ' The relevant portion of the Ordinance for the purposes of this case starts from Part IV, which deals with the control of printing presses and newspapers. Section 24(1)( j) deals with the power to close down press and forfeit security in different cases as mentioned in clauses (a) to (o) of its subsection (1).
46. ' Thereafter Part VI is relevant. It contains special provisions regarding the seizure of certain documents containing words, signs or visible representations of the nature described in subsection
(1) of section 24, referred to above.
47. ' There is yet another important provision. That is explanations attached to section 24(1). It has four explanations. The relevant is Explanation 4, which is to the following effect "Statements and comments made without malicious intention, for the purpose of helping or advocating the progress of any Province or any region or part of Pakistan, or the furtherance of its legitimate interests, or for securing removal of any factors tending to create or excite enmity, ill-will or hatred shall not be deemed to be of the nature described in clause ( j )."
48. ' It is in the light of these provisions that I have to decide about the vires of the impugned notification.
49. ' The first question to be considered -in this sequence is whether it is sufficient in law to simply reproduce the wording of section 24(1) (j), as it appears in the impugned notification, and on the basis of it action is to (1)PLD 1951 FC 15 (2) PLD 1976 SC 6 be taken under section 39 in the form of forfeiture. The proposition appears to be a simple one but as a matter of fact it is very complicated and even the answer is not so easy.
50. ' As already observed, the Government of Punjab did not file any written statement. It simply relied on the reply, comments signed by the Advocate-General. This reply/comments is/are not supported by any affidavit of the Government. It contains no specific paragraph which according to the Government brings the book within the mischief of section 24(1) ( j). It was only at the Bar that the Advocate-General referred to above-mentioned pages and on the basis of that he tried to justify the impugned notification.
51. ' In the case of Mahmud Ahmad Abbasi v. The Administrator of Karachi (supra) referring to the averments of the affidavit filed on behalf of the respondent in that case, "it seems that the book in question was deliberately written and published to create hatred between Shias and Sunnis sections of Muslim community in Pakistan", Full Bench of the High Court observed fl but in the first place it is the order itself which must contain the ground of forfeiture and not the affidavit filed in support of that order, and even in the affidavit all that is sad is that the purpose of the writing of the book seemed to be to create hatred."
52. ' In this very sequence I would like to refer to the decision of `Musawaat' Ltd., Karachi v. Secretary Government of Sind, Home Department (1). In that case, the petitioner had challenged order, dated 25-11-1978 of the Provincial Government in exercise of powers conferred on it by subsection (1) of section 27 of the Sind Press and Publications Ordinance, 1963 directing the publisher of the Daily to deposit security in the sum of Rs, 20,000 with the District Magistrate (South), Karachi. Before passing the order the Government had issued a show-cause notice. The Division Bench, after examining the provision of section 24 of the Press & Publications Ordinance, observed as under :- "The section clearly provides that the Government has to state or describe in an order under this section "the words, signs or visible representations" which in its opinion attract the clauses reproduced above."
53. ' Similarly, in the case of Sultan Muhammad v. Government of West Pakistan through Home Secretary (Government of W. Pak.), Lahore (2), it was observed : "The impugned order suffers from another weakness as well. The objectionable portions of the books were not specified in the show cause notice, and in the absence of such a specification the notice became "insufficient and unenforceable."
54. ' I have gone through the decisions cited by the learned counsel for the respondents in Muhammad Hayat v. The Crown and Saeed Hassan v. Pyar All and 7 others (supra). These are not applicable to the present case. Former was a case where the question involved was the satisfaction of the Officer arresting the detenu in that case. The Court observed that the satisfaction of the officer ordering the arrest must be taken to be subjective satisfaction. The latter was an election matter wherein the Supreme Court dealt with the expression "satisfaction".
(1) P I.. D 1980 Kar. 71 (2) PLD 1976 Lah. 585 The argument of the learned Advocate-General that it is entirely fort the Government to decide as to whether an action is called for under section 24(1) ( j) and the Government decision in this case is final, is devoid of force, In order to determine the wires of the notification the action of the Government is subject to judicial review. It becomes all the more necessary when an aggrieved party takes the plea of mala fide.
55. ' The only material which the Government has placed on record is the reply/comments. I have gone through it very minutely. I have not come across anything substantial in it from which it can be inferred that there were good grounds, or for that matter the Government took into consideration certain portions or passages from the book which justified the impugned notification.
56. ' Reverting to Explanation 4, referred to above, I think it becomes all the more necessary not only to provide grounds, but also to give an opportunity to the person concerned to place his case before the Government. Explanation 4, in my opinion, can either be taken as an exception or a defence to section 24(1) ( j ).
57. In the absence of any specific grounds I have no hesitation in holding that the impugned notification is without lawful authority and as such of no legal effect. I do this very reluctantly because I am sure that if the Government had taken necessary precaution to state the grounds referring to the objectionable passages and complied with other legal formalities the result of this petition would have been otherwise.
58. ' Since this petition has succeeded on technical ground, I don't think it necessary to deal with the other contentions raised by the parties.
59. ' The petition is accepted. No order as to costs.