' ABDUL HAKEEM KHAN, C.J.--Major General (Rtd) Nasirullah Khan Babar who has been sentenced to one year R.I. After having been found guilty on two counts; first under Martial Law Regulation 18 (7)
(b), for inciting people to violence by delivering a speech on 13th of September, 1978 at 10.00 hours in Palace Hotel Mingora; and second, under Martial Law Regulation 13 for attempting to excite disaffection among Armed Forces by aforementioned speech, by the President Summary Military Court (respondent No,1) on the 7th of November, 1978, has moved this Constitutional petition alleging that the orders4were mala fide, coram non judice, without jurisdiction and without lawful authority on the following grounds:
(i) That no proceedings whatsoever except the announcement of the judgment were held on 7-11- 1978 by respondent No,l.
(ii) That there is no evidence on the record to prove allegations levelled against the petitioner.
(iii) That the impugned action of respondents is male fide as detailed in para 7 above and, therefore, renders the same as to be without jurisdiction.
(iv) That the alleged speech was made by the petitioner within the four corners of MLO passed by the CMLA partially relaxing the ban on political meetings.
(v) That there is not an iota of truth in the allegations that the petitioner attempted to excite disaffection towards the. Armed Forces or inciting the people to violence in the said speech as is evident from the statements of the prosecution witnesses.
(vi) That the authority of Martial Law was rooted in the Doctrine of Necessity which is neither relevant in the present context of the situation prevailing in the country nor it is attracted to the case of the petitioner. That, as such, applicability of MLO 18 and MLR 13 in the presence of ordinary law of the land is totally devoid of any legal or constitutional sanctity.
(vii) That in any case the provisions of the said MLRs are not attracted to the facts of the case.
(viii) That the procedure adopted by respondent No,1 in arriving at his conclusion is also against the law.
(ix) That the change of the event from F.I.R. To the Charge-Sheet and the reshuffling of charges itself speaks of false implication of the petitioner in the instant case.
(x) That the impugned action of conviction and sentence passed against the petitioner does not spell out as to under what charge the petitioner was being penalised. That in itself reflects the failure of the prosecution to prove distinctly the charges levelled against the petitioner.
2. Martial Law Administrator Zone 'B', Deputy Martial Law Administrator Zone 'B' and the Superintendent Jail Peshawar with whom the petitioner is lodged appear as respondents 2, 3 and 4, respectively.
3. It is not disputed that the petitioner did make a speech on the 13th of September, 1978. At Palace Hotel Mingora when he was accompanying Miss Benazir Bhutto during her tour of this Province. It is also not denied that the speech delivered was tape-recorded by two different sources. It appears that the Security 'Branch Swat rendered the speech in Urdu, the original being in Pushto, and passed on the script for consideration of the authorities concerned. The script which was placed before the Summary Military Court bears the marking (Ex.0) and a photostat copy of the same is Exh.H.C/1 of this record. The tapes were also played before the Summary Military Court and since it has beep urged on behalf of the petitioner that the transcript was not a faithful rendering of what he had said and he has, therefore, been prejudiced, we got a tape played in Court and later at our instance Mr. Nasiruddin, a judgment writer of this Court prepared a transcript of the tape and the same is Exh.H.C.II. This transcript was read out in Court, but the learned Advocate-General objected to it saying that while the Urdu translation in Exh.H.C.I reads: "if a small Kabuli Nation can bring out Tarakai from Jail, do you think that seven Crore people cannot take out Bhutto". But Exh.H.C.II does not show that in there it was also mentioned that Bhutto could be taken out. Again in Exh.H.C.I there are words; "that our chests are before the bullets", but Exh.H.C.II omits to record the corresponding Pushto words. We sent for the tapes and got then played again and again in our Chamber and have come to the conclusion that after that the petitioner referred to Tarakai and posed the question: "what do you think that 'seven crore people of Pakistan", there is a gap or pause and that the words that follow are: 'We waited patiently for fourteen months'. As far as the second objection to the transcript is concerned, the petitioner said "we have shed our blood" and then the words that he uttered are not very clear. However, after repeated efforts what we have been able to get is: {{URDU TEXT}} ' that is to say, "our chests are full of bullets". These missing words are followed by the words: "It can happen again". In this context we must say that we do not find the argument of the learned Advocate-General tenable when he says that we cannot rely upon the transcript prepared by our judgment writer. We have made every endeavour to satisfy ourselves that the transcript is faithful and to the extent it is not clear, we have already made it known.
4. The learned Advocate-General vehemently urged that in the exercise of our constitutional jurisdiction it will be impermissible for us to form our own conclusions about the culpability of the speech under the Martial Law Regulations. He elaborated that the speech was there before the respondent No,1 and in his judgment the same was violative of the two MLRs, referred to above. So, to speak it was not a case of no evidence and that in any case we could not substitute our appreciation for the appreciation of the tribunal which was seized of the matter and eventually recorded conviction. The learned counsel for the petitioner on the other hand submitted that his endeavour is to show that the speech was not violative of either of the MLRs and, therefore, no offence had been committed by the He added that no sooner we came to the conclusion that an offence had not been committed, the conviction in the case will be a conviction of no evidence. He further added that this Court in the exercise of its constitutional jurisdiction can even strike down an order on the ground of misreading of evidence.
5. In support of his contentions the learned Advocate-General referred us to Muhammad Hussain Munir and others v. Sikandar and others (PLD 1,974 Supreme Court 139); Mr. Zulfikar Ali Bhutto v. The State (PLD 1978 Supreme Court 40); and Sadiq Hussain Qureshi v. Federation of Pakistan, Rawalpindi and 2 others `(PLD 1979 Lah. 1). On the other hand the learned counsel for the petitioner invited our attention to Mst.Hajiran Sughra v. The District Judge and Settlement Commissioner, Hyderabad and others (1969 SCMR 686); The Commissioner and another v. Mian Sher Muhammad (1972 SCMR 395); Messrs National Tyre and Rubber Co., Karachi v. Subedar Fazal Rahman and 2 others (PLD 1977 Karachi 33), Allied Textile Mills Ltd. Karachi v. VIth Sind Labour Court, Hyderabad and 2 others (PLD 1977 Karachi 428); and Messrs Jan Textile Mills, Karachi v. Sind Labour Appellate Tribunal and 2 others (PLD 1977 Karachi 836); and Mr. Zulfikar Ali Bhutto v. The State (PLD 1978 Supreme Court 40) a ruling which has also been sited by the learned Advocate-General in support of his contention.
6. In 1969 SCMR 686 the Supreme Court interfered with the finding of fact, which was based on non- consideration of important aspect of the case and material item of evidence. In 1972 SC MR 395 Anwarul Haq, J., as his Lordship then was, observed: ' It is correct that ordinarily, the High Court is not entitled to investigate disputed questions of fact in the exercise of its writ jurisdiction, but it is well-settled that a finding of fact can be interfered with if it is based on no evidence, or misreading of evidence, or ignoring of material evidence, or taking into consideration inadmissible evidence.
'' In PLD 1977 Karachi 33 M.A.Rashid, J., has observed that in all cases where a finding of fact has been shown to be contrary to the established facts on the record or is based on misreading of facts, such a finding can be disturbed in the exercise of constitutional jurisdiction. In PLD 1977 Karachi 428 Jamaluddin H.Ahmed, J, has observed that consistent view taken by the Courts in cases of errors on the point of jurisdiction, has been, that if a finding in a given case, deals with facts relatable to the question of jurisdiction, and such finding appears to be prima facie incorrect, the High Court would itself go into the .Question of that finding and examine the facts that have been the foundation of that conclusion. His Lordship further observed: ' Ordinarily a finding of fact cannot be interfered with except in cases where it is based upon evidence that is inadmissible in law, or is the result of discarding evidence which might well be material to proper decision of a case, or by misreading of evidence, etc., but in no case could it be said that a concurrent finding of fact, though erroneous for the same-reason, could operate as a bar to an interference with the same by a superior Court.
' PLD 1977 Karachi 836 is a Division Bench ruling and their Lordships relying on 1969 SCMR 686 observed: ' Non-consideration of a material piece of evidence in a judicial or quasi-judicial order is one of the recognised grounds for interference with such an order in exercise of Constitutional jurisdiction.
7. It is no doubt true that in PLD 1974 Supreme Court 139 Muhammad Gui, J. As his Lordship then was, has equated the constitutional jurisdiction with the revisional jurisdiction of the High Courts and has observed that where a tribunal has jurisdiction and determines a question, it can come to an erroneous decision as well. But it appears and I say so with profound respect that it was not argued before his Lordship that the Constitutional powers of the High Court are powers of judicial review and that, therefore, scope of the Constitutional jurisdiction is much wider. What his Lordship observed, reads: ' The High Court has the power to interfere in its supervisory jurisdiction under that section, if a subordinate Court has acted without jurisdiction, or has failed to exercise its jurisdiction or in exercise of its jurisdiction has acted illegally or with material irregularity. The High Court's supervisory jurisdiction under Article 98(2) (a) (ii) of the 1962 Constitution (or, for that matter under Article 199 (1) (a) (ii) of the present Constitution) having regard to its nature or content is assimilable to its jurisdiction under section 115, Civil Procedure Code except in two important respects: first; the former jurisdiction being a creation of the Constitution stands on a higher pedestal than that under section 115, C.P.C., second; the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which .Is confined to subordinate Courts.
However, that may be, it is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exerciseable in a full-fledged appeal, which plainly is not the intention of the Constitution makers.
' In PLD 1979 Lahore 1, Mushtaq Hussain, C.J., after considering almost all the authorities on this point, including PLD 1974 SC 139 has come to the following conclusion in para. 43: ' In view of the declarations of law by the Supreme Court from time to time quoted above, we find that we have to confine ourselves to determining if the Tribunal had jurisdiction to go into the question before it and if in doing so it has transgressed the limits of its lawful authority, but we do not have to sit as a Court of Appeal and decide whether the evidence before it was sufficient for upholding the conclusions that it has arrived at. It will, of course, be a different matter if we were to come to the conclusion that there was no evidence at all before the Tribunal to have adjudicated upon the point that it was seized of. We will take up the charges one by one.
' It will be seen that his Lordship is clearly of the view that the High Court has the power to interfere when it comes to the conclusion that there was no evidence at all before the tribunal.
8. As already indicated, both the learned counsel rely on PLD 1978 Supreme Court 40 and we think that the following extract from the observations of Anwarul Haq, C.J., will clinch the matter in favour of the petitioner: ' It is also necessary to state that, as , pointed out by this Court in a slightly different context in the case of Mir Abdul Baqi Baluch v. The Government of Pakistan PLD 1968 SC 313, 'under a constitutional system which provides for a judicial review of an executive action, it is a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of a judicial authority reviewing executive actions to sit in appeal over the executive, or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned with is to see that the executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirement of law were satisfied'. We may add that the material in question may either be provided by the authority whose action is challenged, or it may be such of which the Court can take judicial notice, as was done by this Court in the recent case of Begum Nusrat Bhutto.
' As to what is reasonable; and what is not, the observations made by Hamoodur Rahman, J, (as he then was) in the case of Abul Ala Maudoodi v. The Government of -West Pakistan PLD 1964 SC 673 , provide a useful guide, namely:- "But what is the test that the Courts are to apply in determining what is or is not reasonable.
Obviously this cannot depend upon the notions of reasonableness of individual Judges, for, one Judge may well-regard that as reasonable which another regards as unreasonable. Nor is the opinion of the Legislature conclusive on this question. The reasonableness must, of course, be judged by the standards of an ordinary prudent and reasonable citizen Reasonable is itself a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another set of circumstances."
' As to what is reasonable or not in this context must be judged by the standards of an ordinary, prudent and reasonable citizen, and will depend on the prevailling circumstances and the object with which the action has been taken. These observations are of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution. (underlines supplied).
' We may repeat that with which the Court is concerned, is that the executive or the administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law have been satisfied and that the observations of his Lordship in that matter were without prejudice to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution; three such principles being (1) where there is a case of no evidence; (2) errors apparent on the face of record; and (3) or misreading of evidence.
9. Before we proceed further, we should like to give a translation of the speech as in the tape: ' This is not the time for clapping. This is time for sorrow. This struggle that we have undertaken is for an objective. This is not the time for clapping. This is time for action. At time like this nobody claps.
This is time for action. This is such a time that a time for confrontation between the people and Army can come. What I speak or voice, I am doing it for the poor people. If Kabulis can get up and set Tarakai free from jail then what do you think of seven crore people of Pakistan. We waited for fourteen months patiently so that Army may remain and the people should also be there. This is why we say in clear words that listen to the call of the people. Key is in your hand. You can get the jail open. If you can _ disband the Hyderabad Tribunal and (release) those traitors who have been treasonous to the Government for thirty years, there is no doubt that the person who has served the country, he cannot come out of the jail. We had struggled even before. We have given sacrifices for the country. We have shed blood (for it). Our chests are still full of bullets. It can happen again. We will serve the country, whether there are bullets or bombs or what not. We shall be in forefront of all. Quaide Awam will be brought here. And he will be brought.
10. By this time there is ample case-law to guide us as to how a political speech `like the one before us is to be read or understood.
11 . In Harkishan Singh v. Emperor (A.I.R. (33) 1946 Lahore 22) the Special Bench of three Judges observed that public disorder or the reasonable anticipation or likelihood of public disorder is a gist of an offence under section 124-A of the Penal Code. Their Lordships further observed that acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that this was their intention or tendency. Their Lordships proceeded on to say that it was essential that before they arrive at the conclusion that the Independence Day Pledge in the article which was impugned before their Lordships was seditious they shall have to consider the writing as a whole and in a fair, free and liberal spirit, not dwelling too much upon isolated passages or upon a strong word here and there, which may be qualified by the context but endeavouring all the time to gather the general effect' which the whole composition would have on the minds of the public. In support of their observations, their Lordships relied on the following observations of the Chief Justice of the Federal Court in AIR 1942 FC 22: ' 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 necessarily 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.
' In Z.A.Sulleri and others v. The Crown (PLD 1954 Sind 80) Lari, J., made the following observations: In arriving at its conclusions as to the intention of the accused the Court must have regard to the occasion on which and the circumstances in which the writing was published or representation made, criticism or condemnation of measures taken or policies pursued by the Government with a view to their withdrawal or alteration cannot per se be seditious. It is not every kind of disaffection, hatred or contempt which would constitute sedition. To my mind it is that degree of disaffection, hatred or contempt which induces people to refuse to recognize the Government at all and leads them to unconstitutional methods which is essential before a charge of sedition can be held to be established.
12. In Hussain Kausar v. The State (PLD 1958 (W,P.) Peshawar 15) Muhammad Shafi, J., made the following observations, which not only show what is culpable, but proceeds on to lay down what would not be culpable: ' It is not the criticism of the Government, in whatever venomous and enraging words it is cloaked which constitutes an offence under section 124-A of the P.P.C.,but the adoption of the methods for the attainment of a certain purpose and that too only when they encourage force and violence which may lead to conflict with the authorities with the certainty that there will be grievous loss of life. Short of that, every criticism of the Government is permissible, and it will ill become the authorities to countenance without good cause the diminution of these rights and so to encourage the growth of opinions which are hostile to the existing institutions.
' In Muhammad Saleem v. The Government of West Pakistan (PLD 1960 (W.P.) Lahore 206) their Lordships have laid emphasis in that an impugned article is to be read as a whole and the intention of the writer is a relevant consideration. Again objectionable portions are not to be in the literary context but also in the context of times in which article is written. 'Sensitive' appraisal of offending material, their Lordships added, may damage Government's goodwill. Their Lordships also cautioned the Government of the dangers of sensitive appraisal of offending material. So to speak, culpable material is to be considered dispassionately and again in the context of contemporary events. In The State v. Sardar Ataullah Khan Mengal (PLD 1967 Supreme Court 78)
Hamoodur Rahman, J., puts the gist of an offence under section 124-A which is pari materia to the two MLRs under which the petitioner has been convicted in the following words: ' The gist of the offence, therefore, in my view, lies in the exciting or attempting to excite hatred, contempt or disaffection towards the Government established by law.It is, however, said that this necessarily brings in the question of motive and the intent with which the words were uttered or written and therefore, to gather this intention of the speaker or the writer the truth or falsity of the facts forming the subject-matter of the comments becomes very relevant. If the statements are factually incorrect then prima facie the intention cannot be a bona fide one. But does it follow from this that if the statements are factually true then the intention must necessarily be bona fide or harmless? A person may no doubt lawfully express his opinion even in strong terms on any public matter however distasteful it might be to others, he may assail his rival politicians, he may even criticise the Government of the day and may warn the executive of the day against taking a particular action, but does this entitle him, to do so in a language which is calculated to engender feelings of .Hatred or contempt or to rouse passions to such an extent as to incite listeners to rebellion or insurrection or to the use of violence to get rid of the object of hatred or contempt? In my view, if he uses such language, then whatever his motive and whatever his intention, it will be difficult for him to escape from the mischief of this section. Intention, as has often been said, is a state of mind and it can only be gathered from the evidence of his overt acts and expressions. The Court cannot look into the minds of the persons accused and has, therefore, perforce to gather their intention from their words and deeds. In each case they must be deemed to have intended the natural and inevitable consequences of their actions and utterances. Where there are no deeds but only words the speaker's intention must be gathered from a plain reading of his words.
He must be deemed to have meant what he said unless the words are ambiguous and capable of bearing more than one meaning.
' From Shaikh Fazlul Haque alias Moni v. The State (PLD 1971 Dacca 154), which is a case under the Defence of Pakistan Rules, the following observations of Abdullah Jabir, J. , can be quoted with advantage: ' 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 wherefrom 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 Government 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 outlook of the people and in their ability to discern between appeal to passion and appeal to reason.
12-A. In Muhammad Inamullah Khan v. The State (PLD 1977 Lahore 1279) we find the following observations of M.S. H Qureshi J., quite illustrative: ' In applying the law, however, we must be mindful that the interpretation of the words has been constantly undergoing change with the change in the political conditions, i.e, from colonial to popular Government. For, the right to criticise the Government and to bring about a change of it through the ballot is the essence of democracy. The Government is no more than an organization adopted by the people themselves to regulate their political affairs and to advance their social and material well-being. If the people have the right to hire and 'fire their representatives, they must be conceded the right to question the policies and the actions of the Government constituted of such representatives and to bring about a change in the same so as to make it responsive and alive to their expectations and aspirations. Explanations 2 and 3 section 124-A, P.P.C. Above point out to such right. Even otherwise, in a country which cherishes the Islamic values of liberty and equality and where the Constitution itself guarantees freedom of speech without undue restrictions, the provisions of the law cannot be too strictly construed against the citizens.
13. Strachey, J. In Queen Empress v. Bal Gangadhar Tilak (ILR 22 Bombay 112) in his charge to the Jury interpreted the term "disaffection' as follows. It means hatred, enmity, dislike, hostility, contempt, and every form of to the Government. 'Disloyalty' is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. You will thus see that the whole question is one of the intentions of the accused in publishing these articles. Did they intend to excite in the minds of their readers feelings of disaffection or enmity to the Government? Or did they intend merely to excite disapprobation of certain Government measures?
And further-- ' In judging what would be the natural and ordinary consequence of a publication like this, and What, therefore, was the probable intention oil one writer or publisher, I must impress on you, as perhaps the most important point in my summing up, that you must bear in mind the time, the place, the circumstances, and the occasion of the publication An article which, if published at a time of profound peace, prosperity and contentment would excite no bad feeling, might, at a time of agitation and unrest, excite intense hatred to the Government. (underlines supplied).
' This charge delivered by the Jury was approved by their Lordships of the Privy Council as well.
14. Keeping in view the above charge in Tofazzal Hussain v. Province of East Pakistan and others (PLD 1965 Dacca 478), Sayem, J., exonerated Tofazzal Hussain for publishing extracts from a very bitter speech of Mr. Hussain Shaheed Suhrawardy.
15. Though comparisons may be odious, in Shaikh Mujibur Rehman v. The State (1969 D L C 476)
Abdul Hakim,J. Exonerated Sheikh Mujibur Rehman of the charges under the Defence of Pakistan Rules for his speech which need not be produced in extenso, but in which he had said that people had been exploited for 18 years and that this exploitation was in respect of all the resources; Ayub Khan had said that he will crush them and will oppress them but the demand of 5i crore of men cannot be stiffled by sending them to jail; so, brothers, get ready for sacrifice, and be prepared for struggle; get ready for struggle in order to realise demands; and the oppression must be stopped".
What the people of East Pakistan have? We have been oppressed to maximum". The observations with which his Lordship disposed of the petition are: ' The speaker may not have expressed himself in temperate language and may have slightly exceeded the bounds of fair criticism by using the language of hyperbole but mere rhetorical claptrap, or expressions which had become the stock-in-trade of the demagogue and which had thereafter lost their stings by subsequent words and phrases, should not be held to be actionable. I have already said earlier that in the lengthy speech the speaker in some passages has made some uncharitable remarks and used some harsh and unfortunate words but those words and phrases can be explained away when read and considered alongwith other parts of the speech and as such the petitioner cannot be held responsible for the prejudicial acts under the Defence of Pakistan. Rules, 1965. As long as the law of the land permits oppositional activities and some amount of freedom of thinking and expressions, mere expression of opinion, however, much unpalatable it may be to the Government, does not, in my opinion, make the Speaker liable for any section under the Defence of Pakistan Rules, unless such opinion tends to disturb the public peace of the region or create a law and order situation in the country or excite disaffection towards the Government established by law or cause fear and alarm to the public.
16. In this context we should like to notice the contention of the learned Advocate-General that by referring to Tarakai's release, which as is well-known, was secured by extreme violence, the petitioner shall be deemed to have advocated violence through asubtle language.
' The learned Advocate-General also reminded us that Tarakai had toppled Daud's regime in Kabul within four months of the speech by the petitioner. Furthermore, when the speech was made, the Martial Law was in force. But all the force in this argument, if there was some, fades into insignificance when we see that on the crucial day (13th Sept. 1978) Martial Law Regulation 33 as amended by MLR 39 on 23rd of August, 1978 in its relevant parts was to the following effect: ' In this Martial Law Regulation unless there is anything repugnant in the subject or context 'political activity' shall include
(a) organising any political party, canvassing or campaigning in public or in private or propagating the cause of any political party or any politician by words, either spoken or written, or by signs, or by visible representation or in any other manner or means or at any place whatsoever; 3(1) Notwithstanding anything contained in any Martial Law Regulation, Martial Law Order or in any other law, for the time being in force no person or a political party shall participate in political activity except to the extent as provided for in sub-paras (2) and (3).
(2) A political party may hold close door meetings of its executive committees or otherwise in any place other than a building structure or enclosure of any kind used or intended to be used or connected in any manner with any Educational Institution, places of public entertainment, worship or religious sanctity.
' Though Mr. Zulfiqar Ali Bhutto had been convicted by a Full Bench of five Judges of the Lahore High Court for a criminal offence and his appeal was pending before the Supreme Court on the day on which the impugned speech was delivered, Mr.Zulfiqar Ali Bhutto remains a politician. The speech, was evidently propagating the cause of a politician and, therefore, it was nothing, but a political speech. It is, however, noteworthy that this speech was delivered at a time when restricted political activity was allowed and the grievance of the respondents is not this that the speech is violative of MLR 33. They only object to its contents with reference to MLRs 13 and 18.
17. When we revert to the speech produced in para.9 above, we do not find a single word, whereby the petitioner endeavoured to create disaffection towards the Armed Forces or any member thereof in the sense in which the word "disaffection" has been interpreted in the various judicial pronouncements already noticed. If the petitioner has expressed his apprehension about a conflict between the people and the. Army, he has also said that they had been patient for fourteen months and wanted that the Army and people should both remain. Naturally he means, both can remain in power. Perhaps he had in his mind the Civil Cabinet under the Martial Law regime. It is true that he did refer to the event, whereby Kabulis got Tarakai released from jail and then posed a question if that will not be possible for seven crores of people of Pakistan, but without saying thereby Bhutto will be released. All this is nothing but a claptrap and would not inevitably mean that violence was being advocated. It looks that perhaps the petitioner had in his view that type of struggle which the P.N.A had to undergo before the imposition of Martial Law. In any case his appeal is to the Government for the release of Mr. Bhutto and in support of it he has endeavoured to recount his and his party's services to the country, he himself being highly decorated Retired Major General; an' Ex-Governor of the Province; and presently a member of the. P.P.P Central Executive Committee. It may also be mentioned that his words will also bear the interpretation that he was having a non-violent resistance in view. We draw this inference from the words: ' We will serve the country whether there are bullets or bombs and what not.
' It is certainly a carefully worded speech and before a restricted audience as is envisaged by MLR
33. This can be construed as an E exhortation to his partisans to step up their political activities. By an oblique reference to Tarakai he cannot be deemed to have incited people to violence.
18. No sooner we hold that the speech delivered by the petitioner is not violative of the MLRs 13 and 18, it becomes a case of no evidence, an error apparent on the face of the record, or so to speak, misreading of evidence and the impugned order a colourable exercise of power. Accordingly we have no hesitation in holding it to be without lawful authority and of no legal effect.
19. About the validity of the two MLOs invoked against the petitioner, we have no hesitation in holding that these are covered by the doctrine of necessity. A reference with advantage can be made to page 58 of PLD 1978 SC 40. As far as the procedure adopted by Summary Military Court we do not find it to be exceptionable. The absence of the signatures of the Reviewing Authority will not make the conviction and sentence as of no legal effect. Again on the view of the matter that we take we need not go into the question of mala fides.
20. For the reasons given in para 18 we will 'accept this petition H and setting aside the conviction and sentence direct the release of the petitioner. Respondents shall pay the costs.