ALI HUSSAIN JAMALI vs GOVERNMENT OF SIND THROUGH ITS DEPUTY

DORAB PATEL, J.------Constitutional Petitions Nos. 941 of 1973 and 1092 of 1973, have been filed by the acting editor of a Hyderabad newspaper known as the Mehran. Constitutional Petitions Nos.

1080 of 1973 and 1081 of 1973 have been filed by the owners and editor and publisher of a daily newspaper known as the Jassarat. These four petitions have been filed to challenge the legality of orders passed against the Mehran and the Jassarat respectively by the Provincial Government under the West Pakistan Press and Publications Ordinance, 1963 (hereafter called the said (Ordinance). And as these petitions turn on the same ques--petition of law regarding the construction of the said Ordinance, we have heard them together at the request of all the learned counsel, and I will dispose them of by this judgment. The facts essential to the legal questions which have arisen in these petitions are that the Provincial Government, which is the 1st respondent in all these petitions, issued notices in September and October 1973 to the publishers of these two newspapers under section 27(1) of the said Ordinance, calling upon them to show cause why they should not be required to furnish security on the ground that the publications specified in these notices tended to excite disaffection against and directly to bring into hatred and contempt the Government established by law. Then, it is sufficient to state here that according to the respondents, as the publishers did not show sufficient cause, the Provincial Government, to which I shall refer as the Government, issued fresh notices to these publishers under section 27(1)(2) of the said Ordinance directing them to furnish security in the sum of Rs. 30,000 either in cash or in securities of the Central Government, but these orders were not complied with. Finally, by a notice dated 19th October 1973, the Government annulled the Mehran's declaration under section 28(b) of the said Ordinance on account of an article in that newspaper on 19-8-1973. Similarly by a notice dated 12-10-1973, the Government annul--led the Jassarat's declaration on account of an article in that newspaper on 22-8-1973, and these petitions have been filed to challenge the legality of all the notices and orders issued by the Government against these two newspapers.

2. Both Mr. Hassan Shaikh, who appeared on behalf of the Mehran, and Mr. Khalid Ishaque, who appeared on behalf of the Jassarat, contended that the issues of these newspapers with regard to which the notices under section 27(1) had been issued did not come within the mischief of the said Ordinance. Secondly, according to both the learned counsel, all these notices under section 27(1) were in breach of the mandatory provisions of this section, because they did not prescribe the period within which the publishers of these newspapers had to furnish the security demanded from them. Further, according to learned counsel, the persons who were served with these notices were not publishers under the said Ordi--nance; and, in any event, the notices had not been served in the manner prescribed by the said Ordinance. The result of these illegalities, according to learned counsel, was that all action taken by the Government against these-newspapers was null and void ab initio. Without prejudice to these contentions, the learned counsel alleged mala fides and further submitted that the publisher of these newspapers had not been given proper oppor--tunity to show cause. They also challenged the orders passed under section 28 on two grounds. The first was that these orders were passed without hearing even the persons who, according to the respondents, were this publishers of the Mehran and of the Jassarat. The 'second ground was that the publications for which action has been taken under section 28 were prior to the date of the notices under section 27(l), therefore, on this ground also, all action taken under section 28 was illegal with the result that the declarations of these newspapers were valid and subsisting.

3. The learned Advocate-General submitted that the issues of these newspapers with regard to which notices had been issued under section 27(1) fell within the mischief of section 24(1)(6) of the said Ordinance. And further the notices had been served on the persons who were the publishers of these newspapers within the meaning of the said Ordinance. Then, as to the mode of service on these persons, the submission was that the method prescribed for the mode of service was directory and not mandatory. But the learned Advocate-General also denied the allegation that these notices were-tot in conformity with the provisions of section 27(1), and he vehe--mently denied the further allegation that the publishers of the newspapers had not been heard, as required under this section. Then, as to the annulment of the declarations of the two newspapers, he conceded that this had been done without a hearing to the publishers, but the submission was that this was 'not material because the publishers were entitled to file appeals against the orders of annulment under section 48 of the said Ordinance, and if they had done so, they would have been heard by the Government. But as they had not filed appeals, the further submission was that the petitions merited dismissal on this ground also. Finally, the learned Advocate-Gene--ral denied all the allegations of mala fides.

4. I will first examine the contention that the notices issued under section 27(1) were illegal, because they were in breach of the mandatory provisions of section 27. However, as these notices are issued only for material, which comes within the mischief of section 24 of the said Ordi--nance, I would first refer to this section. Section 24, in so far as it is rele--vant, reads: "24. (1) Whenever it appears to the Government that any printing press is used for the purpose of printing or publishing any book or paper containing any words, signs or visible representations which-

(i) tend directly or indirectly to bring into hatred or contempt the Government established by law in Pakistan or the administration of justice in Pakistan or any class or section of the citizens of Pakistan or to excite disaffection towards the said Government, or"

Explanations 3 and 4 to this section are also relevant and read as follows: "Explanation 3.----Comments expressing disapprobation of any measures of the Government with a view to obtaining their alteration by lawful means, or any action of the Government, administrative or otherwise, without exciting or attempting to excite hatred, contempt or disaffection, shall not be deemed to be of the nature described in clause (i).

Explanation 4.-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 tile 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)."

Section 27 reads as follows: "27(1) Whenever it appears to the Government that a newspaper pub--lished within West Pakistan contains any words, signs or visible representations of the nature described in subsection (1) of section 24, whether in any headline, caption or otherwise, or that any such headline or caption does not substantially reflect the material pub--lished thereunder, the Government may, by a notice in writing to the publisher of such newspaper, stating or describing such words, signs or visible representations, require the publisher to deposit with the District Magistrate within whose jurisdiction the newspaper is published, security to such an amount, not being less than five hundred or more than thirty thousand rupees, as the Government may think fit to require, in money or the equivalent thereof in securities of the Central Government, as the person making the deposit may choose or alternatively or in addition to requiring such security, impose any of the following punishments, namely:

(a) warning;

(b) suspension of declaration; or

(c) annulment of declaration a Provided that no action under this section shall be taken without affording to the publisher an opportunity of being heard.

(2) Such notice, if any, shall appoint a date, not being sooner than the tenth day after the date of the issue of the notice, on or before which the deposit shall be made."

1 may point out here that the words in subsection (1), which I have placed in brackets, were deleted by West Pakistan Ordinance XXI of 1964, and I may also point out that it was by this amending Ordinance that the provision for security was raised from Rs. 10,000 to Rs. 30,000. Further, in order to resolve the controversy between the learned counsel on the proper construction or the words "such notice" under subsection (2) of section 27, it is necessary to refer to section 28 also, which reads as follows: "28. (2) If any newspaper in respect of which any security has been ordered to be deposited under section 27 contains any words, signs or visible representations which in the opinion of the Government, are of the nature described in subsection (l) of section 24, the Government may, by notice in writing to the publisher of such newspaper, stating or describing such words, signs or visible Representations: ----

(a) where the security has been deposited declare such security or any portion thereof to be forfeited to the Government, or

(b) where the security has not been deposited annul the declaration made by the publisher of such newspaper under section 7, and may also declare all copies of such newspaper, wherever found in the Province, to be forfeited to the Government.

(2) After the expiry of ten days from the date of the issue of a notice under subsection (1) declaring a security, or any portion thereof, to be forfeited, the declaration made by the publisher of such newspaper under section 7, shall be deemed to be annulled."

5. According to the petitioners, a notice under subsection (1) of section 27 must not only call upon the publisher to furnish security by depositing with the Government the amount specified in the notice, but it must also appoint the date "on or before which the deposit shall be made". But the subsection does not contain any such express provision, and, on the other hand, it confers an express opportunity to the publisher to be heard before any order is passed against him. Thus, it would be open to a publisher, by showing sufficient cause, to persuade the Government to withdraw its notice against him. In these circumstances, it seems to me that it would often be an exercise in futility to fix in advance the period for furnishing security. But, according to Mr. Khalid Ishaque and Mr. Hassan Shaikh, the words "such notice" in subsection (2) were decisive, and they could only mean the notice under subsection (1). The necessary result of accepting this submission would be that every notice under subsection (1) would have to appoint the date for furnishing security, but if this con--struction of the subsection is correct, then the words "if any" which follow the words "such notice" would become redundant. And as rightly sub--mitted by the learned Advocate-General, redundancy cannot be attributed to the Legislature. Secondly, the submission of the petitioners implies that the section contemplates only one notice, but the learned Advocate- General challenged this assumption. His submission was that the section envisages three stages.

The first stage was the issue of the show-cause notice to the petitioner. The second stage was the hearing to the publisher, and the third stage was the Government's decision on the matter and the commu--nication of that decision to the publisher. In my opinion, this is a correct analysis of the section, but Mr. Khalid Ishaque and Mr. Hassan Shaikh submitted that the third stage envisaged by the Advocate-General was only the order passed by the Government on the publisher's representations against the show-cause notice, and, as an order was not a notice, the words "such notice" in subsection (2) could only mean the notice prescribed under subsection (1). Not only does this construction of subsection (2) render redundant the words "if any", but, as I observed earlier, it also B assumes that only one notice can be issued under section 27, and, in my opinion, this assumption is utterly fallacious. That the Government must pass an order on the publisher's explanation, as submitted by the learned counsel is correct, but that order may or may not require to be communicated to the publisher. But-if it is adverse to the publisher, he has to furnish security, and if he does not, the penal consequences of section 28 might be attracted, therefore, the communication of the Government's decision to the publishers would be required only when it is adverse, and the Legislature has imposed the requirement of a notice only in such cases. Hence the words "such notice, if any".

6. Not only is this construction of subsection (2) to be preferred because it gives full effect to the language of the subsection, but this construction is also in consonance with the scheme of the said Ordinance. I observed earlier that section 28 was relevant, and I would recall here that the Government can, under this section, forfeit the security and annul the declaration of a newspaper against whom it had passed an order under section 27. Section 30 also confers similar powers, and although the Government can exercise these powers only by passing an order, neither of the sections refer to the order or decision of the Govern--ment but only to the notice which must be given to the publisher, when the decision of the Government is adverse. Thus an examination of the other relevant provisions supports me in my conclusion that the notice under subsection (2) of section 27 is3different from that under subsection (1) of this section, and ft is only the notice under subsection (2) which must fix the period for furnishing security. I therefore agree with the learned Advo--cate-General that the notices under section 27(L) do not suffer from any legal defect.

7. I will now examine section 28, and I would recall here that neither the Jassarat nor the Mehran complied with the orders passed against them for furnishing security, and their declarations were annulled under section 28(b) of the said Ordinance. Now, the notices communicating this decision to annul the declarations of these two newspapers state that in both cases the declarations had been annulled because of publications in these newspapers in the month of August 1973. But as the notices under section 27(1) to these newspapers were issued in September and in October 1973, the submission of Mr. Hassan Shaikh and of Mr. Khalid Ishaque was that the orders annulling the declarations were illegal and in breach of the mandatory provisions of section 28. In order to appreciate this submission, I would point opt here that action against a newspaper can be taken under section 28 only after it has been directed to furnish security under section 27, therefore, obviously these sections must be read together, and the submission of the learned counsel was that in view of the juxtaposition of the two sections, the harsher penalties under section 28 were available only for the recalcitrant editor who refused to mend his ways. I have quoted both the sections in para. 4, and according to section 27 "whenever it appears to the Govern--ment that a newspaper . . . . . Contains any words, signs or visible representations of the nature described in subsection (1) of section 24 the Government is empowered to take action against such a newspaper". And, according to section 28, "if any newspaper in respect of which any security has been ordered to be deposited under section 27 contains any words, signs or visible representations which in the opinion of the Government are of the nature described in subsection (1) of section 24" the Government is empowered to take action under the section against such a newspaper. As both the sections use the word "contains", the contention of the petitioners was that this word meant a publication subsequent at least to the date of the notices; under section 27(1), whilst, according to the learned Advocate-General, the word "contains" meant publications subsequent to those for which a news-- paper had been directed to furnish security. The question is of the meaning of the word "contains" and no doubt there is an ambiguity in the section. But if the word "contains" can cover earlier publications, as submitted by -the learned Advocate-General, why cannot the Jassarat and the Mehran be punished under section 28 for some publication made in the year 1963 when the said Ordinance was promulgated? The mere statement of the consequences of the learned Advocate-General's submission is fantastic, and when we put this aspect of the case to him, he very fairly conceded that the section could not be invoked to resurrect matters published long ago. He submitted that a line had to be drawn somewhere, and therefore his suggestion was that the section should be so construed as to empower the Government to take action against a newspaper for publications subsequent to the date of the publication for which an order had been passed under section 27, but not for publication prior to such date. Now, even if it is reasonable to draw a line in this manner, the difficulty is that on the Advo--cate-General's construction of the word "contains", to draw a line in this or any other manner would be to read into the section a qualification, which is not contained in it.

8. Additionally if action can be taken under section 28 for publication prior to the date of the notice under section 27(1), would not the two sections overlap? This would be an achronistic, but I point out here that there was some overlapping between these two sections in the said Ordinance, as originally enacted. I have quoted section 27 in paragraph 4 and shown the portion of the section which was deleted by the West Pakistan Ordinance XXI of 1964. Now under this section as originally enacted, Government could not only have directed a newspaper to furnish security, but it could also have suspended or annulled its declaration, therefore sections 27 and 28 overlapped. This anomaly was removed by the amendment of section 27 in 1964, and we have now to give effect to the intention of the Legislature in removing this anomaly. The result of the amendment is that the only action which can now be taken against a newspaper under section 27 is an order to furnish security. Now when a newspaper furnishes security, it is making a pledge for the fulfilment of a promise, the promise being that it will not again publish any matter which will come within the mischief of section 24 of the said Ordinance. This follows from the concept of an order for security, and, on the other hand, if we were to accept the learned Advocate-General's submission, it would mean that a newspaper could be punished for a publication prior even to the date on which it had learnt of its alleged misconduct. In my humble opinion, such a construction would be contrary to the concept of an order for security, and is not ported by the language of the section. Accordingly, on this ground also, I would agree with the submission of the learned counsel for the petitioners, that section 28 is available only against the recalcitrant editor.

9. However, even if I am wrong, the section is not a model of elegant drafting, and there is an ambiguity about the word "contains", the ambiguity must be construed according to the maxims for the construction of statutes. Now, the contention of Mr. Hassan Shaikh and of Mr. Khalid Ishaque was that as the section was a penal provision, it had to be construed strictly, and, therefore, even on the footing that the word "contains" was ambiguous, that ambiguity had to be construed in favour of the subject and not in the manner submitted by the learned Advocate-General. On the other hand, according to the learned Advocate-General, the principle of strict construction was not attracted because the section only affected rights of property, and the section involved only rights of property because the penalties which could be imposed under it were pecuniary penalties, namely the forfeiture of the newspaper's deposit or the annulment of its declaration. I am not impressed by this submission. Even on the footing that the penalties prescribed under section 28 affect rights of property, this does not mean that the section should not be construed strictly.

Secondly, even though the penalties under the section are of a pecuniary nature and affect rights of property, they also affect much more. The liberty of the Press, subject to law, is as essential to the proper functioning of democracy as the liberty of the subject. There--fore, the ambiguity in the word "contains" must be construed strictly and G in favour of the subject, and on this ground also, the declaration of a newspaper cannot, in my opinion, be annulled on account of publications prior to the date of the notice to it under section 27(1) of the said Ordinance. Accordingly I hold that the orders annulling the declaration of these two newspapers are illegal, and it is not necessary to examine the other grounds on which the Government's action under section 28 is challenged by the petitioner. However, the Government's orders for furnishing security have not been complied with therefore it is necessary to examine the grounds on which they challenged the validity of these notices, and I will first consider the petitions filed by the Mehran.

10. I pointed out that a notice under section 27(1) was issued on 7-9-1973 to the publisher of the Mehran for an editorial and/or article on 18th August 1973. The publication consisted of speeches of the opposition leaders with a caption and an editorial note. I may also point out that Petition 941 of 1973 was filed to challenge the proceedings thus instituted. But the notice thus challenged was withdrawn, and on 16th October 1973, a fresh notice under section 27(1) was issued only for the caption, the editorial comment and a part of the speeches set out in the entire article. Petition 1092 of 1973 has been filed to challenge the proceedings thus instituted, and in view of the notice dated 16th October 1973, both Mr. Hassan Shaikh and the learned Advocate-General conceded that Petition 941/73 had become infructuous. This is correct, therefore I would only examine the material with regard to which the fresh notice under section 27(1) was issued on 16-10-1973. The translation of this material is as follows: ---Results of arrests can be dangerous.---Government will not enforce the New Constitution. It is only a showpiece. To save country people should launch forceful movement-strong condemnation of the arrests of Baluch Leaders in the whole country.--- The arrest of. Mr. Attaullah Mangel, Mr. Gous Bux Bizenjo and Khair Bux Marri and the suspension of fundamental rights has brought gloom and resentment all over the country. The prominent political leaders from the nook and corner of the country have described the above said arrests the worst type of political victimization and have said that this action of the Government will result in dire consequences.

He said the popularly elected Government in Baluchistan was removed illegally after armed forces are being used there and Baluchi Leaders are being arrested and assassinated. As a result of these events once again the condition of 1971 will come into being.

He said that present Government in order to continue fascism is adopting such tactics which are becoming a serious threat to the integrity of the country."

11. I pointed out that the entire article, of which the passage quoted above is only a part, consisted mostly of the speeches of Opposition Leaders, some of whom we were informed were members of the National or of the Provincial Assembly. We therefore inquired from the learned Advocate--- General whether any action had been taken against the authors of the speeches, but the Advocate-General stated that no action had been taken against them. He was also not able to refer us to any law or order prohibiting a newspaper from publishing the speeches of the Opposition Leaders. Now, in a democracy, it is the right and the duty of newspapers to publish, in a fair and balanced manner, the speeches both of the members of the Govern--ment and of the Opposition. Additionally, as the earlier notice had been withdrawn, we invited the learned Advocate-General to explain to us the mischief only in that part of the publication which was specified in the notice of 16-10-1973. The learned Advocate-General realised that the withdrawal of the earlier notice had created complications for the Government, but he tried to defend the impugned notice on the basis of the observations of Cornelius, C. J. In the leading case of Ghulam Jilani v. Government of West Pakistan (PLD 1967 SC 373). Reliance on this authority was placed in the following manner. The editorial caption uses the words "People should launch forceful movement", Now, according to the learned Advocate-General the words "forceful movement" means an invitation to a violent movement. But as the words could as easily mean a well-organised bud peaceful movement, the learned Advocate-General referred us to Ghulam Jalani's case. The question in this case was whether there was material to support the petitioner's detention under rules 32. And 204 of the Defence of Pakistan Rules, 1965, and, in my humble opinion, the observations in the case are of little relevance in the instant case because the scope of these rules is much wider than section 24(1) of the said Ordinance. Secondly, the charges against the petitioner in the case cited were with reference to meetings addressed by him and his colleagues as part of a public agitation against the Tashkent declaration. There is a difference between a speech and an article or an editorial in a newspaper. The readers of a newspaper are scattered and they cannot rally to an appeal in an article as a mob can to the speech of a demagogue.

Additionally, Cornelius, C. J. Who pronounced the judgment of the Court in this historic case, considered the background in which the petitioner had made his speeches to be relevant. This background was that the speech of the petitioner, and of his colleagues were part of an agitation against the Tashkent Declaration, which had itself aroused very great feeling, and the petitioner and others had disregarded and defied orders under section 144, Cr. P. C. Similarly, there had been disturbances in which eleven police officers had been injured, and, according to the judgment, even a shot had been fired at the police. Now, strong language used in such a background can have an exclusive effect. But as it was not even contended before us that the impugned article had been written during the pendency of an agitation against the Government in which the law was being defied, Ghulam Jilani's case is of no help to the respondents. Additionally, I must observe here that in order to bring a publication within the mischief of section 24(1) of the said Ordinance it is not enough to pick up isolated expressions here and there and contend that they bring the publication within the mischief of the section. It is necessary to consider the publication as a whole, therefore the learned Advo--cate-General's reliance on the words "forceful struggle" is misconceived.

12. The learned Advocate-General then contended that the language in the rest of the material was highly objectionable. The material consists of a part of a speech and an editorial comment. The editorial comment criticises the arrest of. Certain political leaders and states that the suspension of fundamental rights had brought gloom and resentment all over the country. Now, as I shall presently show, an agitation for fundamental rights cannot possibly be illegal so long as there is no violation of the law. The editorial comment then criticises the arrest of political leaders, but this would, in my opinion, fall squarely under Explanation 3 of section 24 of the said Ordinance. The rest of the material, to which exception is taken, is a part of a speech by an Opposition Leader against whom no action whatsoever has been taken. And further, as I pointed out, the article contained a fuller extract of this very speech, but as the notice with regard to that article which is the subject-- matter of Petition No. 941/73 has been withdrawn, the learned Advocate---General realised that he had a very uphill task. He therefore took us back 75 years and invited us to follow the view taken by Strachey, J. In Queen --Empress v. Bal Gangadher Tilak and Keshaw Mahadev Bal (I L R 22 Bom. 112).

13. As Tilak's case was really the sheet-anchor of the Advocate-General's submission on the merits of these petitions. I may point out here that the accused in that case, Tilak, was a well-known Indian Leader at the turn of the last century, who was agitating for self-Government, and he used to run a newspaper in which lie had praised the Indian Leader Shivaji. Together with that praise, there was condemnation of the British Government, but admittedly the criticism was mild, compared to that in the publications which are the subject-matter of the dispute in these petitions.

Now, Tilak was tried and convicted on the original side of the Bombay High Court under section 124- A of the Indian Penal Code, therefore what was relied upon was the speech of Strachey, J. To the Jury which tried and convicted Tilak. After referring the Jury to the provisions of section 124-A, Strachey, J. Explained the legal implications of this section to the Jury and observed (page 134)

"I agree with Sir Comer Petheram in the Bangobasi case that disaffection means simply the absence of affection. It means hatred, enmity, dislike, hostility, contempt, and every form of ill-will to the Govern--ment. "Disloyalty" is perhaps the best general terms, 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. You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the question of punishment; if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place, it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question."

Mr. Strachey, J. Drew the attention of the Jury to the explanations to section 124-A which are substantially the same as the explanations to section 24 of the said Ordinance and observed with reference to the right of the subject to criticise the Government as follows:- "In the next place, supposing that you are satisfied that these writings can fairly and reasonably be construed as "comments on the measures of the Government" and not as attacks upon the Government itself, still you cannot apply the explanation unless you believe that such comments were made with the intention of exciting only "such a misappropriation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government . . . . What is the meaning of disapprobation of Govern--ment measures as contrasted with disaffection to the Government? I agree with Sir Comer Petheram that while disaffection means the absence of affection or enmity, disapprobation means simply disapproval; and it is quite possible to like or be loyal to any one, whether an individual or a Government and at the same time to disapprove strongly of his or its measures . . . . .; a man may criticise or comment upon any measure or act of the Government, . . . . . . But if he goes beyond that, and, whether in the course of comments upon measures or not, holds up the Government itself to the hatred or contempt of his readers-as for instance, by attributing to it every sort of evil and misfortune suffered by the people, or dwelling adversely omits foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people-then he is guilty under the section and the explanation will not save him."

With respect, Governments are run by human beings, and human beings can act from the noblest of motives as well as the basest of motives. Nor are those who administer the Government whether as Ministers or in a sub--ordinate capacity, exceptions to this rule. That is one of the basic assump--tions of democracy, and if base motives cannot be attributed, when justified by circumstances, to the Government, or if it is a crime to accuse the Govern--ment of indifference to the welfare of the people, then it means that a citizen can criticise the Government only at his peril.

But the essence of democracy is the right of a people to change its rulers through the electoral process, and if a citizen is not allowed to criticise his rulers, the function--ing of the democratic process will be impeded. The learned Advocate---General was conscious of this dilemma. He therefore pointed out that although political institutions had been transformed in the 75 years since Tilak's case, the provisions of section 124-A had not been amended and therefore the speech of Strachey, J. To the Bombay Jury in 1897 was still good law. I find it difficult to accept this argument because it would nullify the intention of the Legislature in withdrawing Martial Law and in promulgating the Constitution which is essentially a democratic Constitution. I would therefore not follow the view of Strachey, J. Unless it is binding on me, and, in my humble opinion it is not.

14. In the first place, the view of Strachey, J. Had reference to section 124-A of the Penal Code, and the learned Advocate-General assumed that this section was in par materia with section 24 (1) of the said Ordinance. But the two provisions are not identical. It is true that both deal with the mischief of bringing or attempting to bring into hatred or contempt "the Government established by law . . . . . And of exciting "disaffection towards the Government". Now, to this extent, the two provisions are substantially l identical, but unlike section 24 (1) of the said Ordinance, section 124-A punishes the attempt to excite disaffection towards the Government. This difference is important, especially for a newspaper, therefore, authorities on the construction of section 124-A would not automatically be applicable to the construction of section 24(i) of the slid Ordinance. Secondly, according to Mr. Khalid Ishaque, Tilak's case was no longer good law, and I will only refer here to the classic judgment of Gwyer, C. J. In Niharendu Dutt Majumdar v. r Emperor (AIR 1942 F 6 22), to which learned counsel referred us. There, the appellant had gone in appeal to the Federal Court against the judgment of the Calcutta High Court, by which the Calcutta High Court had dismissed his appeal against a conviction under rule 34 of the Defence of India Rules. The conviction was for a speech in which the appellant had violently criticised the Governor and the Ministers of the Bengal Government, and according to the learned Judges of the Calcutta High Court, the appellant had, in his speech, accused the Governor and the Ministers of having instigated communal riots in the Province, the Federal Court equated rule 34, under which the appellant was convicted, with section 124-A of the Penal Code, and this means that if Tilak's case had been followed, the appeal would have been dismissed. However, in allowing the appeal, Gwyar, C. J. Observed: "Abusive language even whet 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". This judgment was pronounced in a period of crisis when the existence of the Government had been jeopardised by the fortunes of war. Yet, as submitted by Mr. Khalid Ishaque, it marked a new trend in the law of sedition, and if the view taken in it be correct, it lends very great support to 'the case of the petitioners. It is therefore necessary to examine the reasons given by Gwyer, C. J. For his view, Gwyer, C. J. Referred first to a dictum by Lord Sumner in Bowman v. Secular Society Ltd. (1917 A C 406) in which that eminent Judge observed: "The words as well as the acts, which tend to endanger society, it has been observed, differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. If the present day meetings and processions are held lawful which 150 years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because the times having changed, society is stronger than before." Gwyer, C. J. Then observed: "Hence, many judicial decisions in particular cases which were no doubt correct at the time when they were given may well be inapplicable to the circumstances of today. The time is long past when the mere criticism of Governments was sufficient to constitute sedition, for it is recognized that the right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness. Criticism of an existing system of Government is not excluded, nor even the expression of a desire for a different system altogether."

14-A. These observations are relevant to the construction of section 24(l) of the said Ordinance, and I agree with Mr. Khalid Ishaque that they had lent great support to the case of the petitioners.

However, in view of the history of Majumdar's case, I have to point out that after the observations quoted, Gwyer, C. J. Analysed the ingredients of section 124-A and observed: "Public disorder, or the reasonable anticipation, or likelihood of public dis--order is the gist of the offence. The acts or words complained of must either incite to disorder, or must be such as to satisfy reasonable men that that is their intention or tendency." Thus, contrary to the view of Strachey, J. In Tilak's case, Gwyer, C. J. Equated section 124-A with the offence of sedition. But in Emperor v. Sedashiv (PLD 1947 P C 32), the Judicial Committee preferred the view of Strachey, J. In Tilak's case, and further it expressly disapproved of the observations of Gwyer, C. J. Which I have quoted in this paragraph.

However, the analysis of section 124-A by Gwyer, C. J. Was one of the two grounds of his decision.

The other ground was that the` question of what acts or words come within the mischief of the law could not be decided without reference to the great political changes taking place in the sub- continent, and as this part of the ratio of the case had not been considered, much less criticised by the Judicial Committee, Mr. Khalid Ishaque's submission was that this part of the ratio of the case was still good law. I have quoted the relevant observations in paragraph 13, and the view of Gwyer, C. J. Was based on Lord Sumner's dictum in Bowman's case. But that dictum laid down a maxim of construc--petition, and, in my humble opinion, if the Judicial Committee had intended to reject this principle, it would have stated so. Additionally, in the case before it, the writings of the detenu had reference to the Quit India Movement which had led to an orgy of violence in the country, and- abusive language in an explosive atmosphere can have an explosive effect. Therefore, having given anxious thought to the decision of the Judicial Committee, I am of the view that the Judicial Committee had not overruled Majumdar's case completely, and, therefore, I agree with Mr. Khalid Ishaque that the observations of Gwyer, C. J. Which I quoted in paragraph 13 are still good law.

15. I am fortified in my opinion by the trend of authority after the birth of Pakistan, and I would first examine three judgments of the Lahore High Court on the Press (Emergency Powers) Act, 1931, which was in force in the early years of Pakistan. Section 4 (i) (d) of this Act corresponded to section 24 (1) of the said Ordinance and In re : Daily Ehsan (PLD 1949 Lah. 282) Cornelius, J. (as he then was) discussed the nature of a publication which would come within the mischief of section 4

(i) (d), and the following observations at page 296 are very instructive :- "To arouse feelings of this kind by a writing it is necessary to write provocatively, employing the arts of emphasis, exaggeration and misre--presentation so as to exclude all possibility of the action criticised being excused on any such innocent ground as mistake or miscon--ception. The language commonly employed is immoderate, touching, if it does not exceed, the boundary between fair criticism and abuse, and the appeal is rarely to the intellect by the processes of ratio cination but almost always to ignorance and prejudice."

However, as the dispute in this case was of a sectarian nature it would be more useful to examine the judgment in Abdullah Malik v. Crown (PLD 1949 Lah. 212). This too was a Full Bench case, and an order for security under the Press (Emergency Powers) Act, 1931, had been passed against the petitioner for publication in which it had criticised the Punjab Safety Act and the imposition of section 92-A of the Government of India Act. Although the criticism was in extremely violent language, the newspaper's petition was allowed, and it would be sufficient to quote here the observations of Cornelius, J. (as he then was) at page 218 "The burden of the article is plain. It is political propaganda designed to appeal to the labouring class, which is advised not to hope for any benefits from the new section 92-A, which is an instrument of dictatorship but to strive to set up a democratic front and take power into their own hands. In the course of this argument which commences with an attempt to analyse section 92-A, the remark is made that `Our present rulers, namely, those who are responsible for enacting section 92-A, always condemned its predecessor, section 93, as a weapon of despotism employed by the British, but they had not hesitated to introduce such a measure themselves after the British had been replaced, suggesting that in their view autocratic Government by the British was to be condemned, but arbitrary Government by themselves was "a blessing and bounty". This latter passage is objected to by the learned Advocate-General, but we find it impossible to see in it anything which can bring it within the meaning of section 4 (i) (d) of the Press Act. The criticism is leveled at the legislators who had enacted section 92-A, not against the King or the Government established by law or the administration of justice or any class of section of His Majesty's subjects.

Moreover it is criticism expressly based on reason, and not at all of the kind calculated to arouse those strongly hostile feelings which alone can be described as hatred or contempt."

PLD 1950 Lah. 420). S. A. Rahman, J. (as he then was), who delivered the leading judgment of the Court observed with reference to the construction of section 4 (i) (d) of the Press (Emergency Powers) Act as follows: "The writer may not have expressed himself in temperate language and may have been exceeded the bounds of fair criticism by using the language of hyperbole, but mere rhetorical clap-trap or expressions which had become the stock-in-trade of the demagogue . . . . . Should not be held to be actionable."

As I showed earlier, this was the view of Gwyer, C. J. And S. A. Rahman, J. Further observed at page 426: "I agree with the principle . . . . . That ideas of what constitutes sedition have changed with the passage of time and a good deal of latitude should be allowed to the Press so that healthy public opinion is fostered by frank and even forceful criticism of the Government in power, in this age of democracy and liberty. I would only add that liberty to criticise must not be confused with license to hold up the Government established by law, to hatred or contempt."

Thus, as stated by Waheeduddin Ahmad, C. J. (as he then was) in his article on Press Laws in Pakistan (Pakistan Supreme Court Law Quarterly, Vol. II) "the powers exercised under the Press (Emergency Powers) Act, 1931, are no doubt very wide but after the birth of Pakistan and with the passage of time and changed circumstances Courts of Law gave a beneficial construction to its provision".

16. I now turn to the judgments of the West Pakistan High Court, and as the propriety of criticising Ministers is one of the principal questions in these petitions, Mr. Khalid Ishaque referred us to the observations of Shafi, J. In Hussain Bux v. The State (PLD 1958 Pesh. 15).

There, the learned Judge observed: "In my view it is permissible for a citizen to hold up the men who are charged or have been charged with the executive Government of our country and the care of her destinies to ridicule and contempt if they are guilty of mal-administration. It will be absurd to suggest that a citizen has no right to advocate the change of the Government of one political party, even if it commits blunders and betrays the trust reposed in it."

Although these observations support the plea of the petitioners, as sub--mitted by the learned Advocate-General, they had reference to the fundamental rights guaranteed under the 1956 Constitution, therefore the case is distinguishable, but the next case relied upon by Mr. Khalid Ishaque fully supports his submission. In this case, Moulvi Farid Ahmed v. Government of West Pakistan (PLD 1965 Lah. 135), the question was of the validity of a detention order under the West Pakistan (Maintenance of Public Order) Ordinance, 1960. Now, under section 3 of this Ordinance, the Government can detain any person with a view to preventing him "from acting in any manner prejudicial to public safety or the maintenance and the peti--tioner had been detained under this section for his speeches against the President Ayub Khan. According to the judgment, the petitioner had, in his speeches, accused the President of corrupting the members of the National Assembly with permits and even of exploiting the Islamic Ideology. Further, according to judgment, the petitioner had accused the police of indulging in wholesale tyranny and said "that a sum of Rs.

50,000 had been spent on a party of the President at Peshawar in disregrad of the miseries of the masses . . . . . In the "Flood affected areas of Hyderabad". The petitioner had further alleged that the Government had no sympathy for the masses and that its followers were the members who had earlier supported Ranjit Singh and Britishers. Finally, with reference to the President's call for strengthening his hands, the petitioner had said "we wish that his hands should be broken". A generation earlier, such speeches would have been punished as an open incitement to violence, and if the test laid down by Strachey, J. In Tilak's case had been followed, there cannot by any doubt that the petitioner would have been found guilty of rousing hatred and contempt against the Government. However, the detention order against him was set aside and the petition was allowed. I am conscious that the statute under which he was detained was different from section 24 (1) of the said Ordinance, but, according to Mr. Khalid Ishaque, this distinction was not material because the Government's power of detention under the statute construed in the case cited was very wide. The submission that the Government's power of detention under the West Pakistan Main--tenance of Public Order Ordinance is wide is correct, and further, as the petitioner's speeches in the case cited were even, according to the judgment, in offensive language, the learned Advocate-General did not place reliance on this distinction. I will presently consider the grounds on which he attempted to distinguish this judgment, but I would first quote here the observations of Iqbal, J. (as he then was) who pronounced the judgment of the Full Bench; "The right to utter a reasonable criticism is a privilege and a source of strength to a community. On "Freedom of speech" live the foundation of all democracy. There is no gainsaying the fact that in a system of the Government where the Constitution provides for the functioning of the political parties, the Opposition is a necessary outcome, and they are always in an endeavour to succeed by criticising the opposite-party . . . . . In the very nature of the working of the political parties, it is necessary that they should have freedom to put their viewpoints before the people. In doing so, they criticise the Government in power to pursuade the people to vote for the members of their party.

I am in respectful agreement with these observations, and, in my opinion, the true ratio of this case is that the words and acts which endanger an autocratic regime do not have such an effect or tendency in a democracy, therefore, statutes of a penal nature should be construed, in a democratic society, so as to preserve and not to undermine the functioning of democracy. Now as the difference between the statute in the case cited and section 24 (1) of the said Ordinance is not material to this principle, the observations quoted lend great support to the case of the petitioners.

Additionally, as the case is the last in a line of authorities going back at least to Majumdar's case thirty years ago, Mr. Khalid Ishaque's sub--mission was that the doctrine of stare declsis was attracted.

17. The learned Advocate-General however referred us in support of his submission to two post- Partition judgments; Khondkar v. Province of East Pakistan (PLD 1959 Dacca 566) and Obaidullah v.

Government of West Pakistan (PLD 1960 Lah. 661). In both these Full Bench cases, criticism of the Government, including allegations that the Government was oppressive and was exploiting Islam to deceive the masses, was held to fall within the mischief of section 4 (1) (d) of the Press (Emergency Powers). Act, 1931. I agree with the Advocate-General that these judgments support his submission. But as these cases were decided during Martial Law, and as Martial Law necessarily means the suspension of democratic rights, in my opinion, these judgments are dis--tinguishable. I may point out here that in the Dacca case, Akber, J. Has referred to Martial Law Regulation No. 51 and distinguished the observa--tions of Cornelius, J. (as he then was) in the case of the Daily Ehsan on this ground, and in my opinion Obaidullah's case is also distinguishable on the same ground. However, if I am wrong, this case is inconsistent with the rule laid down by the later Full Bench of five Judges in Farid Ahmed's case and cannot therefore be followed.

18. The learned Advocate-General then attempted to distinguish Farid Ahmad's case on the ground that a declaration of emergency was in force. The distinction would have been material if the rule in Farid Ahmad's case had been based on Fundamental Rights. But, as I have shown, the ratio of the case is the necessity to construe preventive laws by references to the right of a citizen in democracy to change his rulers. And as the Legislature has withdrawn Martial Law and promulgated a democratic Constitution, we would be defeating its intention if we were to construe the said Ordinance by reference to Martial Law concepts. Additionally, the observations of Cornelius, J. In Malik Nasrullah Khan's case had reference to an article criticising a proclamation under section 92-A of the Government of India Act, while the decision of Gwyer, C. J. In Majumdar's case was given during the emergency created by the Second World War. Clearly therefore the existence of an emergency cannot alter the principle which Waheeduddin Ahmed, C. J. (as he then was) described as the rule of a beneficial construc--petition of the press laws.

19. Finally the learned Advocate-General submitted that the rule in Farid Ahmad's case could be followed only in so far as it was consistent with the law declared by the Supreme Court. That is obvious, but Ghulam Gilani's case, on which he relied, is distinguishable both on the facts and law, and the only other decision of their Lordships which was cited before us was the Province of East Pakistan v. Tofazzal Hussain (PLD 1965 SC 520). There, the editor and printer of a newspaper was detained under the East Pakistan Public Safety Ordinance, 1958 for publishing a speech by the late Mr. H. S. Suhrawardy. The demand in the speech was for the restoration of Fundamental Rights.

Government action was also criticised, and expressions such as "slavery" and "shackles of slavery" were used in reference to the detention of citizens by the Government under the detention laws.

The High Court had quashed the order of detention against the respondent, and in dismissing Government's appeal, Cornelius, C. J. Observed at p. 521: "To determine whether the speech was in itself an incitement to hatred and contempt for the Government established by law, it is important first to regard it as a whole to determine its scope and content, and the direction into which it was designed to guide the minds and actions of the audience. Ex-Hypothesi that would be a new direction and the necessity for a change would be derived from the existing state of things, requiring therefore some degree of criticism of the established order. A measure of emphasis of language is a requisite for securing conviction and thus gaining active support. The tendency to hyperbole in public speeches of this kind has a reason behind it, and has to be accepted. The law would, however, not begin to apply unless the words used were in themselves of a character such that they would bring about in the minds of the audiences a strong revulsion of feeling against the established Government, so that a state of active contempt for it as something unworthy would arise, coupled with such aversion as is accompanied ordinarily with a desire to injure or destroy the object of the aversion."

I am in respectful agreement with these observations, but I do not think that the view of the Full Bench is, in any way, inconsistent with these observations. First criticism of the Government, even though couched in strong language, does not come within the mischief of the law, and Cornelius, C. J. Observed in this connection that allowance had to be made for "the tendency to hyperbole in public speeches." But the difference between the two cases is that the speeches of the petitioner in Farid Ahmed's case were in much more offensive language and what is more im--portant, the criticism was of the elected Head of the State. There is an obvious difference between the Head of the State, whether elected or not, and his subordinates yet the Full Bench held that a citizen is entitled, in a democracy, to criticise the Head of the State. Obviously the same principle applies to criticism of ministers, but this question was not considered by the Supreme Court, because it did not arise before their Lordships. Therefore, in my humble opinion, Farid Ahmed's case has not been over--ruled, and we are respectfully bound by it, as it is the judgment of a Full Bench.

20. I will now examine, in the light of this discussion, the notice to the Mehran which is the subject- matter of Petition No. 1092/73. The notice is with reference to a publication of 18-8-1973, and, as I pointed out earlier, a notice had been issued on 7-9-73 for an article on that date in the Mehran.

Later, however this notice was withdrawn, and a fresh notice was issued only with regard to the caption, the editorial comment, and a very small portion of the article which had been the subject- matter of the earlier notice. I have quoted this material in para. 10 and as I explained, with regard to the caption, the learned Advocate-General only criticised the words "forceful movement" in this caption. Then, as to the editorial comment, it criticises the arrest of Baloch leaders, but on the whole, as the language is moderate, the editorial comment would fall under explana--petition 3 of section 24 of the said Ordinance. Finally there is the extract from the speech of an opposition leader couched in very strong language. Thus for instance, the accusation against the Government is that it is using fascist methods. Now in the East Pakistan case, the Supreme Court held that expressions such as "slavery" and "shackles of slavery" should be treated only as the hyperbole of politics. I see no difference between accusing a Government of slavery and accusing it of fascism therefore, in my humble opinion, the case of the Mehran is almost on all fours with that in the East Pakistan case and the result is that the impugned material does not fall within the mischief of section 24 (1) of the said Ordinance. Now all the proceedings against the Mehran commenced with this notice under section 27 (1) and as it is illegal, it follows that the subsequent orders passed by the Government, which are challenged in this petition, are also illegal. This was also not disputed by the Advocate-General, and the result is that Petition No. 1092 of 1973 must be allowed.

21. I now turn to the two petitions filed by the Jassarat. Petition No. 1080 of 1973 was filed on 22-10- 1973, in order to challenge a notice under section 27 (1) of the said Ordinance dated 5-10-1973, and the orders passed in pursuance of this notice. Petition No. 1081 of 1973 was filed the next day to challenge nine notices under section 27 (1) dated 9-10-1973 and all orders passed in pursuance of these nine notices. It would be convenient to examine first the notices challenged in Petition No. 1081/73, and the impugned publications deal with only two subjects, yet separate notices were issued for each article or editorial and further in all cases exception has been taken only to specified portions of the article or editorial.

22. The notice (Exh. M) is for a publication in the Jassarat on 21-8-1973 criticising the arrest of Baluch leaders and the Proclamation of Emergency in consequence of which Fundamental Rights remain suspended, despite the coming into force of the new Constitution. This is a criticism of Govern--ment policy, which falls under Explanation 3 of section 24 and, on the whole, the language of the article is not immoderate. The Advocate-General however objected to the words "The people learnt this announcement with utter dismay which was announced with great pleasure from the top". This criticism refers to the Proclamation of Emergency. But Mr. Khalid Ishaque's explanation was that these words were a literal translation into Urdu of the language of the Emergency Proclamation. Mr. Khalid Ishaque's submission is correct. No doubt, a literal translation of the Proclamation of Emergency has been resorted to in order to suggest improper motive to the Government, but this is part of what Cornelius, C. J. Described as the tendency to hyperbole in public speeches, and, in my humble opinion, this observation applies with as much, if not more force, to newspaper publication as to speeches. Accordingly, the notice (Exh. M) is, in my humble opinion, illegal.

23. The notice (Exh. M-6) is for a part of an editorial of the Jassarat dated 29-8-1973, whilst the notice (Exh. M-8) is for a part of an article by one Mr. Abdul Hamid, which was published on 31-8- 1973. Both the edi--torial and the article criticise the Government in strong language for high-- handed action. Thus, according to the editorial, mass arrests were going on, so that the Government prisons were not sufficient to house the persons arrested, and, to quote from the copy of the editorial, the "day is not far off when dictatorship will fall . . . ." Mr. Abdul Hamid's article is similar, and it alleges that lawlessness, nepotism, bribery and dishonesty were rampant and had crippled the poor. It also states that those who agitate against these things are beaten by the police. Obviously, the tone both of the editorial and of the article is highly critical of the Government, but similar allegations were held not to be within the mischief of the law in Farid Ahmad's case, Addi--tionally, the Full Bench judgment of the Lahore High Court in Abdullah Malik's case was with regard to a publication under the Press (Emergency Powers) Act, and the allegations in that case were very similar in tone and in language to the publications for which these notices (Exhs. M-6 and M-8) have been issued. Therefore, applying the rule laid down in these cases, I would accept the submission of Mr. Khalid Ishaque that these two notices are illegal.

24. I now turn to the notice (Exh. M-3) which is for a part of an editorial in the Jassarat of 26-8-1973, and consists of two parts. The first is an attack on the Government for the separation of East Pakistan. This is a passage of a few words only, but the further allegation is that in order to overcome to blow to ~ the national economy in consequence of the East Pakistan tragedy, the Government had "auctioned away -outside everything of the house. By auctioning the assets of the house the coffers of the State Bank no doubt were filed, but the country faced a famine. Everything is in short supply." This is a criticism of the devaluation of the Pakistan rupee, and although the criticism is in strong language, it falls, in my opinion, under Explanation 3 of section 24 and cannot therefore come within the mischief of section 24(i) of the said Ordinance, and even the learned Advocate-General hardly criticised this portion of the publication. He however took strong exception to the earlier part which blamed the Government for the separation of East Pakistan.

Now, the relevant passage is "After separating East Pakistan the Government which insists on the recognition of Bangla Desh ..... In its eagerness to show miracles has auctioned away outside everything of the house," and the objection of the learned Advocate-General was to the words "after separating East Pakistan". But East Pakistan was separated before the present Government took power. The learned Advocate-General however submitted that the suggestion in the editorial was that the leaders of the present Government had been responsible for the separation of East Pakistan. I think the learned Advocate-General's apprehensions are not justified, because even illiterate persons know that the present Government took office after the separation of East Pakistan. However, if I am wrong in my reading of this editorial, at the highest, there is only a suggestion or innuendo that the leaders of the present Government were responsible for the separation of East Pakistan. Would that be sufficient to bring the editorial within the mischief of the law? There may be occasions when criticism of the leaders of the Government, with regard to their conduct when in opposition, would fall under section 24(i) of the said Ordinance; but obviously such cases would be very exceptional cases, and an obvious example is when the criticism is com- -bined with an incitement to violence. That is however not so in the instant case. The learned Advocate-General then tried to persuade us that criticism of the leaders of the Government, for their conduct when in opposition, was, by itself, sufficient to come within the mischief of the law, because such criticism was aimed at discrediting the Government and would therefore amount to rousing disaffection or hatred or contempt against the Government. I am not able to accept this submission. I do not see how criticism of any leader of the Government, for his conduct when in opposition, can lead even to disaffection against the Government, except on the assumption that the leaders of the Government are infallible. But this assumption is con--trary to the basic tenets of democracy, and I do not think that the readers of any newspaper expect infallibility from those in power. Therefore, I cannot accept the learned Advocate-General's submission, and it follows that this notice (Exh. M-3) is also illegal.

25. I now turn to the other five notices. They have all been issued for articles and editorials criticising the manner in which the Government had handled flood relief. Now, even Mr. Khalid Ishaque was conscious that some of these publications were not in good taste; he therefore pointed out that these publications had not led to any law and order problem and he relied on the observations of Iqbal, J. In Fareed Ahmed's case that the con--sequences of a speech were relevant to the question whether it fell within the mischief of the law. I cannot accept this argument, because the difference in the statute construed in that case and section 24(i) of the said Ordinance is relevent to the observations relied upon. But I cannot also accept the submission of the learned Advocate---General that we should bear in mind the cumulative effect of the five publica--tions under consideration. As the Government made its choice by issuing separate notices for each publication, it cannot now rely on the cumulative effect, if any, of the publications.

The learned Advocate-General then ques--tioned the propriety of criticism during a national crisis and in view of the magnitude of the floods, I agree that the period was one of national crises. But would this circumstance be sufficient, by itself, in a democracy to justify the suspension of the right to criticise the Government? I would recall here that Majumdar's case, which gave a new trend to the law of sedition, was decided during the Second World War, and, similarly, the judgments of the Lahore High Court on the Press (Emergency Powers) Act were pronounced during a period when the nation was overcoming enormous difficulties. I cannot therefore accept the learned Advocate- General's submission, but I agree with his alternative submission that if democracy is to survive, the right of criticism, must be exercised in a fair and honest manner. Thus, in the instant case, in view of the unprecedented magnitude of the floods, it would have been impossible for any human agency not to make mistakes in the handling of the crisis. But this means that honest differences of opinion were possible on the manner of handling the crisis. Secondly, constructive criticism would help, not hamper the Government, and would fall under Explanations 2 and 4 of section 24 of the said Ordinance. But, the learned Advocate-General submitted that this protection was not available to false and malicious criticism made with the intention of exploiting a national crisis, and, he tried to persuade us to uphold the notices under section 27(1) on this ground. But save for one publication, which has distressed us and which I will presently consider, he was not able to refer us to any material which could show that the impugned publications were false or malicious to the knowledge of the publisher. He however submitted that as the question of issuing these notices was within the Government's discretion under section 27, we shall not interfere with that discretion.

Now, I agree that we cannot interfere with the Government's discretion, if its view is supported by evidence, but I have no doubt that we can set aside these notices if they are not supported by any evidence. Therefore, in the circumstances discussed, the Government should have specified the allegations in the publications which according to it were false or malicious to the knowledge of the publisher and produced some material in support of this contention. Unfortunately, not only has it not done so, but the plea now advanced has not even been raised in the counter-affidavit of the respondents which has been filed by a Deputy Secretary of the Home Department, Government of Sind. In these circum--stances, I do not see how we can accept the submission that the impugned publications were false or malicious to the knowledge of the publisher and with these observations I will now examine the nine notices dated 9-10.1973.

26. The notice (Exh. M-1) is for extracts from an editorial in the Jassarat of 22nd August 1973. This editorial criticises the Prime Minister for visiting the flood affected areas of the Punjab after the calamity was over. It also criticises the Government for arranging celebrations in Rawalpindi for the inauguration of the new Constitution, and the suggestion is that this pre-occupation perhaps impeded the flood relief operation. The notice (Exh. M-7) is for an editorial comment in the same newspaper of 30th August 1973, and the theme of this editorial is the same. It criticises the Government for delay in commencing flood relief operations on the same grounds as well as on the further ground that the Srinagar Radio of occupied --Kashmir had given warnings of the floods a fortnight earlier. It also states that when independent newspapers had repeated these warnings, they had been accused of rumormongering, and that the Radio had been misguiding people about the flood situation in Khanpur. Although this criticism is pungent, as I observed, no attempt was made to prove that it was false, and we were further informed that a Commission of Inquiry had been set up in the Punjab in order to examine whether there had been any delay or negligence in commencing flood relief operations. In these circum--stances, it is not possible to hold that this criticism of the measures adopted by the Government in handling the floods is such as to go beyond the ambit of Explanations 3 and 4 of section 24 of the said Ordinance.

27. The notice (Exh. M-2) is for an extract of a news item about the floods in the same newspaper of 25-8-1973. According to this news item, there was a dispute between two Ministers, whose names are not mentioned, about protecting the towns of Sukkur and Larkana from the floods. The further allegation in the article is that the Minister interested in saving Larkana had directed the Chief Engineer accordingly, whilst the other Minister, interested in saving the town of Sukkur, had given similar instruc--tions to the Chief Engineer, but as his instructions were not followed, the floods swept through Dadu, Shikarpur and parts of the District of Larkana. Now, it was not disputed before us, in view of the magnitude of the floods, that breaches had to be made somewhere in the river or in the canals. But decisions in this respect must have been frequently made almost instantane-- ously on the basis of information, which might not be correct, despite the utmost vigilance in ascertaining the facts. Therefore, it is easy to be wise after the event, and further it is also possible for the most honest and con--scientious persons (o have differences of opinion on the decisions made. In this view of the matter, I do not find anything objectionable in the allegation that Ministers had differences of opinion about the manner in which breaches had to be made in order to reduce the devastation caused by the floods. Accordingly, the material in this article does not, in my opinion, fall within the mischief of section 24(1) of the said Ordinance, and the :notice (Exh. M-2) is illegal.

28. The notice (Exh. M-5) is for an extract of the editorial of 28-8-1973, according to which the protecting wall for Khanpur was broken by the floods without any previous warning having been given by the Government therefore there was damage to property and loss of life. The editorial also criticises the "heartlessness of the associates of the Government". In the absence of an attempt to show that these allegations are false, I agree with Mr. Kbalid Ishaque that the editorial is protected by Explanations 3 and 4 of section 24 of the said Ordinance. I agree with the learned Advocate-- General that some of the expressions used in the editorial are offensive, but they would fall under the rule laid down by the Supreme Court in the Province of East Pakistan v. Tofazzgl Hussain.

Accordingly, the notice Fxh. M-5) is also illegal.

29. The notice (Exh. M-4) is for an article by one Ahmad Hameed which was published in the Jassarat on 27-8-1973 and as observed earlier exception has been taken only to a part of that article. This article deals with the floods generally and states that instead of attending to flood relief, Ministers including the-two Ministers expressly mentioned at the end of the relevant extract, "went on supervising the task of creating breaches in the embankments of the canals in order to save their lands. . . : ' The article further states "Dadu was drowned in order to save Al-Murtaza in Larkana". We were informed that this was a reference to a property owned by the Prime Minister, and therefore the allegation is that "Dadu was drowned" in order that the Prime Minister could protect his own property. But, as submitted by the learned Advocate-General, human beings live in Larkana also, and if the population of Larkana is bigger than that of Dadu, it was in the national interest to protect Larkana, if necessary, at the expense of Dadu. Now, I do not think there can be any doubt that the population of Larkana is bigger than that of Dadu, and similarly the population of Larkana District is more than that of Dadu. However, even if I am wrong, Larkana has the priceless heritage of Mohanjo Daro, therefore, even for the Philistine, who has no regard for crumbling bricks and mortar, Mohanjo Daro is a major tourist attraction and a very valuable foreign exchange earner. In these circumstances the learned Advocate-General submitted that the allegations in this article were patently false and malicious to the knowledge of the author and the publisher of the article. That the allegations are false is obvious, and further it is difficult to believe that the author or the publisher did not know that Larkana was a bigger and more prosperous town than Dadu, therefore we have been greatly disturbed by this article, and we pointed out to Mr. Khalid Ishaque that its contents were misguiding. And as learned counsel invoked the principles of democracy, I am compelled to observe that the cause of demo--cracy will not be served by indulging in personalities in this irresponsible and probably dishonest manner.

But precisely because the allegations m the article are patently false, what detrimental effect could they possibly have on the Government? In the absence of evidence about the type of person who reads the Jassarat, and there is no such evidence, we would assume that the reader of a newspaper would know that Larkana is a much bigger town than Dadu, and would therefore see through the falsity of this allegation. Additionally, the question is of the construction of a statute restricting the liberty of the subject, and we cannot depart from the rule of a beneficial construction of such statutes. I am conscious that this is hard on the person falsely maligned, but hard cases proverbially make bad law, and although Mr. Khalid Ishaque did not attempt to defend the allegations in this article, he submitted that the petitioners were protected by the rule laid down in Majumdar's case and in Farid Ahmed's case. In Majumdar's case, the allegation was that the Governor and the Ministers had instigated communal riots, and, in my opinion, this allegation is far more offensive than any in the article under consideration, yet the conviction of the appellant was set aside by the Federal Court. Similarly, in Farid Ahmed's case, the petitioner had abused President Ayub and alleged that he had got an enormous amount of money spent on his entertainment in disregard of the miseries of the masses in the flood affect--ed areas of Hyderabad. This allegation is not very different from that in the instant case, yet Farid Ahmed's petition was allowed. Thus, violent abuse of the Government, including personal allegations against Ministers, have, in the words of Gwyer, C. J. Become "the stock-in-trade of the demagogue" for more than - a generation.

Nor is this tendency confined to Pakistan. Accordingly, although the allegations in the article under consideration are false and misguiding, bearing in mind the position taken by the respondents in their counter-affidavit and in view of the decisions cited. I would hold that this article also does not fall under section 24(1) of the said Ordinance. The result is that all the notices under section 27(1) and the orders issued in pursuance of these notices in Petition No. 1081/73 are illegal, and therefore this petition has to be allowed.

30. I now turn to Petition No. 1080/73. The notice under section 27(1), which has been challenged in this petition, has been issued for extracts from a long article by one Abdul Kareem Abid, which was published on 20th August 1973. The article is a very strong criticisms of the arrest of opposition leaders, of the Government's handling of the situation in Baluchistan, and of the failure of the then Governor and Chief Minister of that Province to call the Provincial Assembly. But exception has been taken only to the portion of the article specified in the notice of 5-10-1973. This portion criticises the prime Minister for not having learnt the lesson from the tragedy of East Pakistan. It then states "What Yahya Khan had done in East Pakistan Prime Minister Bhutto is now doing the same in Baluchistan". The extract further criticises, in strong language, Mr. Bhutto's policy in Baluchistan, and it ends with an observation that the lot of the opposition of Baluch leaders would be very soon the lot of the entire opposition of Pakistan. Now, the arrest of opposition leaders is a policy decision, which is clearly open to criticism under Explanations 3 and 4 of section 24 of the said Ordinance.

And the learned Advocate-General was conscious that allowance had to be made for the hyperbole of politics, therefore he took strong exception to the comparison of the Prime Minister with Yahya Khan. In Malik Nasarullah Khan's case, the Provincial Government, which had proclaimed section 92-A of the India Act, was compared with the British rulers, and their arbitrary ways, and although the language of the publications was at least as violent as in the instant case, a Full Bench of the Lahore High Court had held that the publications did not come within the mischief of section 4(1)(d) of the Press (Emergency Powers) Act. Similarly, in Fareed Ahmed's case the petitioner had compared President Ayub not only with the British but even with Ranjit Singh.

Thus, for more than 20 years, it has been "the stock-in-trade of the demagogue" to try and denigrate the Government by suggesting a comparison between the Government and its predecessors. No doubt, such comparisons are always unfair, but it is too late in the day to challenge them as illegal. Therefore, although the language used in this article is to be deplored, the impugned publication does not fall within the mischief of section 24(1) of the said Ordinance, and the result is that the subsequent orders of the Govern--ment are illegal.

31. In these circumstances, it is not necessary to consider the other submissions advanced by the learned Advocate-General and by the learned counsel for the petitioners.

32. In the result, Petition No. 941/73 is dismissed as infructuous, but Petition No. 1092/73 is allowed and both the notices under section 27, as well as the Government's order under section 28(1)(b) of the said Ordinance ate set aside as illegal. Similarly, in Petitions 1080 and 1081 of 1973, all the notices under section 27 of the said Ordinance and the orders under section 28(1)(n) of the said Ordinance are set aside as illegal, so that these two petitions are also allowed. However, as the petitions raised difficult questions of law, I will not make any order as to costs.

AGHA ALI HYDER, J.-----I agree.

S. B. H.