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P L D 1949 Lahore 511

(SPECIAL BENCH)

Before Cornelius, Muhammad Jan and Muhammad Khurshid Zaman, JJ

In the matter of the Co‑operative Capital Press, Lahore and

the Indian Press Emergency Powers Act, XXIII of 1931

SHER MUHAMMAD‑Petitioner

Versus

THE CROWN‑Respondent

Criminal Original No. 2 of 1949, decided on 10th June, 1949.

(a) Press Emergency Powers Act (XXIII of 1931)

. S. 25 (1)‑Crown precluded from justifying Provincial Government's order on basis of "words, signs or visible representations," not in fact specified in notice‑Nevertheless purport and effect of the words etc., may be determined from the whole publication.

Subsection (1) of section 25 must be interpreted to mean that the Provincial Government's order shall be set aside by the Special Bench if in its opinion, "the words, signs or visible representations" in respect of which the order in question was made, do not fall within subsection (1) of section 4, and this interpretation clearly precludes the possibility of the Crown seeking to justify its order on the basis of any "words, signs or visible representations", not in fact specified by its statement or description in the notice conveying its order to the keeper of the press.

This is, however, not to say that in contending that the effect of the passages specified in the notice is of a kind described in one of the clauses of subsection (1) of section 4, the Crown is precluded from referring to any part of the "newspaper, book or document" other than the parts specified. It has been laid down in a number of authorities that in cases of this kind where the publication is objected to on the ground that it is seditious, in order to determine whether the publication has that effect, the whole of it should be read in a fair, free and liberal spirit, not with the eye of narrow and fastidious criticism ; nor should the Court look merely to a strong word here or to a strong phrase there as the purport of the articles is not to be determined by reference merely to isolated expressions contained in it, but the effect upon the mind of the average reader is to be gauged in relation to the whole article.

These observations have no doubt been made in mitigation of such offence as is involved in the publication but they are of equal validity from the opposite point of view as well, namely, that to appreciate the injurious effect of the passages cited in the notices, reference may be made to the remainder of the publication in order to elucidate what exactly was the intention and purpose behind the particular passages.

(b) Press Emergency Powers Act (XXIII of 1931)

, S. 4 (1) (d)‑Army of Pakistan constitutes a "class or section of His Majesty's subjects."

Per Cornelius, J.

---‑ The army of Pakistan constitutes for the purposes of section 4 (1) (d) of the Press Act, a "class or section of His Majesty's subjects".

There can be no doubt that if it is sought to bring any persons within the expression "class or section of His Majesty's subjects", it will be necessary first of all to look for well‑ascertained well‑defined and sufficiently numerous groups. These conditions would undoubtedly be satisfied by a body of say 100,000 persons, which, we are told, is the approximate strength of the Pakistan Army, who are collectively referred to in common parlance as military personnel and whose distinction from the civilian section of the population is thoroughly well‑recognised. This large body of persons is subject to a common command, a common duty and loyalty and in external ways is kept as far as possible distinct from the rest of the population by living and messing together, and by their contact with the civilian population being restrained under military discipline to a very great extent. When this large body of persons thus bears all the external marks of an easily distinguishable class among the subjects of His Majesty in the Dominion, is there any good reason why they should not be considered as falling within the meaning of the expression "class or section of His. Majesty's subjects" in clause (d)

Per Khurshid Zaman, J--

‑ One of the rules of construing statutes is that they shall be construed utiloquitur vulgus, that is, according to the common understanding and acceptation of the terms.

Speaking for myself, I have not the slightest doubt as to the plain meaning of the words "class" or "sections" as used in clause (d) and when these words are construed according to their ordinary meaning they, in my opinion, fully cover such distinct and well‑defined groups of His Majesty's subjects as the Army and the Police, particularly the Army as it comprises a fairly large portion of the population, owes a special duty to the Crown and Country and has its own Rules and Regulations for internal Government.

AIR 1919 P C 31 relied on; AIR 1934 Lah. 21.9 (majority, judgment approved ; judgment of Agha Haider, J. dissented from) ; A I R 1948 Lah, 7 ; A I R 1934 All. 717 ; I L R 1937 Mad. 14 ; I L R 57 Bom. 253 ref erred to.

(c) Press Emergency Powers Act (XXIII of 1931)

, S. 4 (1) (d)‑Statements in pamphlet, regarding Pakistan Army not controverted by Crown by affidavit‑ Statement to be accepted is true‑Rule 10 of Rules framed by Lahore High Court under Press Act.

The statements made in respect of the Pakistan Army have not been controverted on the side of the Government by any affidavit. In view of this, the Court is entitled to regard the statements made as true. Under rule 10 of the rules framed by this Court under the Press Act, the Crown is entitled to controvert statements of fact in the articles complained of by means of affidavit and where there is no such affidavit by the Crown, the facts stated in the newspaper's report must be accepted as correct.

(d) Press Emergency Powers Act (XXIII of 1931)

, S. 4 (1) (d)‑‑"Contempt" and "Hatred", defined.

Contempt in the active sense may be defined as "the act of viewing another as mean, vile or worthless" and hatred is a "sustained feeling of bitter aversion or dislike generally combined with a desire to injure, destroy or get rid of its object".

(e) Press Emergency Powers Act (XXIII of 1931)

, S. 4 (1) (d)‑Statement charging Pakistan Army with "oppressing" cultivators at the frontier, firing at labourers, refugees and East Bengal peasants, acting as protector of the jagiri system‑Statement charging Pakistan soldiers with appropriating peasants' property when they go to a village and procuring foodstuffs and other necessities forcibly and free of cost‑Whether statements amount to contempt or hatred.

Muhammad Ali and Muhammad Siddiq for Petitioner.

Shabir Ahmad A. G., and Abdul Aziz Khan, A. A. G., for Respon dent.

Judgment

Cornelius, J.‑

This special Bench has been constituted under section 24 of the Indian Press (Emergency Powers) Act, XXIII of 1931, to deal with a petition brought under section 23 of the said Act by a Mr. Sher Muhammad, who is described in the petition as the keeper of the Co‑operative a Capital Press, Lahore. A notice was issued to the petitioner on the 29th January, 1949, by the Provincial Government, under the signature of the Chief Secretary to Government, West Punjab, which set out that the Co‑operative Capital Press appeared to the Governor of West Punjab to have been used "for the purpose described in clause (d), subsection (1), section 4 of the Indian Press (Emergency Powers) Act, XXIII, 1931, namely, to print a book entitled INQILAB -I‑CHIN ZINDABAD published by Abdullah Malik, from the Qaumi Darul Ashaat, Y. M. C. A. Buildings, The Mall, Lahore, translations of some passages of which are annexed here to"; the notice further set out that in exercise of powers under subsection (3) of section 3 of the Press Act, the Governor required the petitioner to deposit with the District Magistrate, Lahore, on or before the 8th February 1949, security in the sum of Rs. 1,000 or the equivalent thereof in securities of the Government of Pakistan, as the petitioner might chose.

Reference may at this stage be made to the provisions of the Press Act relevant to the case. By section 3 it is provided that any person keeping a printing press, who is required to make a declaration under section 4 of the Press and Registration of Books Act, 1867 (which declara tion the petitioner Sher Muhammad has made) may be required at the same time by the Magistrate before whom such declaration is made, to deposit security not exceeding Rs. 1,000. This power was not exercised in respect of the Co‑operative Capital Press at the time when the declara tion was made concerning it. By subsection (3) of section 3, it is, however, provided that when a printing press in respect of which security has not been demanded in the first instance is used for the purpose of printing any document containing any words, signs or visible representations of the nature falling within subsection (1) of section 4 of the Act, the Provincial Government may require the keeper of the press by notice to deposit security with the District Magistrate in a sum not less than five hundred or more than three thousand rupees, within a period to be specified in the notice not being less than ten days from the date of the issue of the notice. It is a specific requirement of this sub section that the notice sent to the keeper of the press should state or describe the words which appeared to the Provincial Government to fall within subsection (1) of section 4 of the Act. The latter provision is one which enables the Provincial Government to declare security deposited by a printing press to be forfeited to the Government and where no security has been deposited to declare the press itself to be forfeited to the Government, if it appears to the Provincial Government that the press has been used for the purpose of printing any document containing words which have certain tendencies specified in nine separate clauses. Clause (d) of this subsection, to which reference was explicitly made in the notice sent to Mr. Sher Muhammad, may be reported in full, along with the operative portion of the subsection preceding and following the clause

"4. (1) Whenever it appears to the Provincial Government that any printing press in respect of which any security has been ordered to be deposited under section 3 is used for the purpose of printing or publishing any newspaper, book or other document containing any words, signs or visible representations * * which tend directly or indirectly‑

(d.) to bring into hatred or contempt His Majesty or the Govern ment established by law in British India or the administra tion of justice in British India or any class or section of His Majesty's subjects in British India, or to excite disaffection towards His Majesty or the said Government.

the Provincial Government may, by notice in writing to the keeper of such printing‑press, stating or describing the words, signs or visible representations which in its opinion are of the nature described above" take certain specified action.

No action of this kind has been taken in the present case, and we are concerned only with the particular purposes enumerated in clause (d) of this section. By section 23 of the Act, it is provided that the keeper of a printing‑press who has been ordered under subsection (3) of section 3 to deposit security, may apply to the High Court within two months from the date of the order, to have it set aside, and "the High Court shall decide if the newspaper, book or other document in respect of which the order was made did or did not contain any words, signs or visible representations of the nature described in section 4, sub section (1)". These words, taken as they stand, might give rise to the belief that it is the duty of the High Court to scrutinize the newspaper, book or other document which is brought before it in a petition under section 23 and to determine whether any part of the newspaper, book or other document is of a nature specified in any clause of subsection (1) of section 4, and so interpreted this provision might be thought to nullify the requirement in subsection (3) of section 3 that in the notice which the Provincial Government sends to the keeper of the printing‑press, making a demand of security, the Government shall state or describe the words, signs or visible representations which appear to it to fall within subsection (1) of section 4. Indeed, an attempt to present an argument to this effect was made by the learned Assistant Advocate -General, in order for overcome the handicap that only three small passages had been cited in the notice sent to Sher Muhammad out of a lengthy pamphlet, which according to learned counsel for the Crown was replete with matter falling within the various clauses of subsection (1) of section 4. The argument, however, proves to be devoid of substance when reference is made to subsection (1) of section 25, which sets out of the circumstances in which the Special Bench is bound to set aside the order of the Provincial Government, viz., where "it appears to the Special Bench * * that the words, signs or visible representations contained in the newspaper, book or other document in respect of which the order in question was made were not of the nature described in section 4, subsection (1)". Reference to subsection (3) of section 3 will show that it empowers the making of an order by notice, not in respect of a newspaper, book or other document, but in respect of "words, signs or visible representations" obtained in any newspaper, hook or other document printed at the press in question. The Provincial Government is required to specify these "words, signs or visible repre sentations". Therefore, subsection (1) of section 25 must I e interpreted to mean that the Provincial Government's order shall be set aside by the Special Bench if in its opinion, "the words, signs or visible representations" in respect of which the order in question was made, do not fall within subsection (1) of section 4, and this interpretation clearly precludes the possibility of the Crown seeking to justify its order on the basis of any "words, signs or visible representations", not in fact specified by its statement or description in the notice conveying its order to the keeper of the press. This is however, not to say that in contending that the effect of the passages specified in the notice is of a kind described in one of the clauses of subsection (1) of section 4, the Crown is precluded from referring to any part of the "newspaper, book or document" other than the parts specified. It has been laid down in a number of authorities that in case of this kind where the publication is objected to on the ground that it is seditious, in order to determine whether the publication has that effect, the whole of it should be read in a fair, free and liberal spirit, not with the eye of narrow and fastidious criticism ; nor should the Court look merely to a strong word here to a strong phrase there, as the purport of the articles is not to be determined by reference merely to isolated expressions contained in it, but the effect upon the mind of the average reader is to be guaged in relation to the whole article. These observations have no doubt been made in mitigation of such offence as is involved in the publication, but they are of equal validity from the opposite point of view as well, namely that to appreciate the injurious effect of the passages cited in the notices, reference may be made to the remainder of the publication in order to elucidate what exactly was the intention and purpose behind the particular passages.

The petitioner Sher Muhammad filed two petitions each supported by affidavit on the 5th February 1949 in this Court. This first petition challenged the Provincial Government's notice sent under subsection (3) of section 3 of the Press Act, on the grounds that the order was bad in law as the Provincial Government had "failed to indicate in what manner the publication in question offends clause (d) of subsection (L) of section 4" of the Press Act, and secondly, that in two of the three passages cited in the notice, the words complained of had not been quoted ; it was averred that the book did not offend against any provisions of clause (d) aforesaid, and in any case, the petitioner when he printed it did not have any intention of the kind specified in that clause. Finally, it was said in any case, the book fell within the exceptions to subsection (1) of section 4. (It is not necessary to cite the exception as the point was found to be of no importance for the decision of the case). The second petition by Sher Muhammad was for a temporary order of stay in relation to the making of the deposit. The ground stated was that the petitioner found it difficult to furnish a sum of Rs. 1,000 in the short time allowed to him, "as the press is owned by the labourers who run it." Upon this application, an order was made on the 8th February, 1949 by a Bench of three learned judges of this Court, suspending the operation of the Provincial Government's order.

In the printed paper book of the case, there is a translation in English of the book entitled INQILAB‑I‑CHIN ZINDABAD which covers no less than eleven foolscap pages. I do not propose to reproduce the whole of this matter in this judgment. It will be sufficient to attempt a rapid paraphrase of the Pamphlet, in which however, the passages corresponding to those cited in the notice sent by the Provincial Government will be reproduced in full. The pamphlet starts with this statement that the Chinese Revolution (by which it is apparently meant the Communist Army in China after gaining a brilliant victory was advancing towards Nankin, the capital of China, after overcoming the forces of American imperialism, destroying the Chinese feudal system, and smashing Chiang‑Kai‑Shek, who was described as the "slave of American capitalists" together with Chiang‑Kai‑Shek's Government and his mercenary army. It was said that the Communist successes had caused the Governments at Washington and London to tremble and the hearts of their stellite Governments at Delhi and Karachi to sink, and finally to bring terror to international imperialism, capitalism and feudalism. The Communist successes had afforded pleasure to the labouring classes of China, to the prosecuted people of Indonesia and to the forty crores of liberty‑loving people of India and Pakistan. These other people became sure that like the people of China, they too would be able to overthrow in their own countries the "groups dancing to the tune of America and Britain and the capitalists and jagirdars (feudal landlords)". The Communist successes had not been achieved without enormous sacrifices, but the people had remained firm under great sufferings, and had finally achieved success.

Passage "A".‑To‑day we welcome the Chinese Revolution, the Chinese warriors and their leaders, the Chinese Communist Party. We congratulate it (the Chinese Communist Party) and salute its revolu tionary flag and make a vow that, following in their footsteps, we will save our beautiful, and fertile motherland from encroachment by foreign imperialists and exploitation by the jagirdars and capitalists. Here too we will establish a true democratic system of Government, which shall ensure for us prosperity, easy circumstances, freedom and peace".

In looking for the causes of the success of the Chinese Revolution it was necessary first to become acquainted with the political and economic structure of China. Its population was approximately fifty crores and its social structure was similar to that of Pakistan and India, namely partly jagirdari and partly capitalistic and imperialistic. Giving details of the percentage of the population which owned land, and emphasizing the "rapacity" of the jagirdars, the writer proceeds to refer to the Chinese capitalists of whom a handful included in four families owned all the mills and factories in China. One of these families is that of Chiang‑Kai‑Shek and another is that of the Finance Minister. The jagirdars and the capitalists were two groups who were robbing the people of China. A third group was that of the American and British capitalists described as "imperialists" who occupied a position by virtue of their investments which they employed to meddle with the internal affairs of China and virtually to control its Government, its trade and its policy in regard to agricultural, commercial and foreign affairs. Then follows a brief history of events in China since 1840 when the East India Company started to interfere in China's affairs, and it was said that ever since that time, the western imperialistic power had made a hunting ground of China whose people had continuously to fight against the foreign imperialists who were supported by the then rulers of China. Eventually in 1911, the Manchu Dynasty was overthrown but this did not eliminate the power of the foreign imperialists, and in 1919 a demons tration by students of Pekin University started a movement which once again threw the whole country into turmoil, and out of this turmoil, two political parties came into prominence. One was the Kuomintang Party and the other the Communist Party. The latter was led by Doctor Sun Yat‑sen, and for some time under his leadership the two parties worked in harmony, but after his death Chang‑Kai‑Shek seized power, his party (the Kuomintang Party) which was confined jagirdars and capitalists, declared the Communist Party unlawful and started a reign of oppression, while seeking personal advancement and advantages for Chiang‑Kai‑Shek and his supporters, aided by the imperialistic Government of America and Britian. A paralel was drawn between the composition of the Kuomintang Party and the Muslim League in Pakistan it being said that the leadership of Muslim League "to‑day rotates among the Nawabs, Nawabzadas, jagirdars, and capitalists" and that the Muslim League leaders having joined with British and American imperialists are plundering the people. An account then follows of the Communist Party's fight against enormous odds starting with a member ship of only ten thousand. They successfully resisted five attempts made by military expeditions sent to annihilate them by Chiang‑Kai Shek, and had overcome other attempts at their destruction made during the late war, when in July 1946, they had to face a heavy onslaught by Chiang‑Kai‑Shek's forces, which were aided with American money and weapons. When this attack was made, Chiang‑Kai Shek's troops were twelve times more numerous and better armed than the Communists, but the latter did not lose heart or admit defeat and continued to fight from post to post, all the while drawing recruits from the ranks of the enemy, until finally the forces of Chiang‑Kai‑Shek were gravely depleted and in August 1947, the Communist Army counter attacked. Between that time and June, 1948, they liberated seventeen crores of Chinese people and thirteen lacs square miles of territory, in which they carried out an agricultural revolution by giving the land to the people and freeing them from feudal landlords. Details of Chiang- Kai‑Shek's losses in 1948 are given. The sorry plight of his forces at the time of writing is depicted, the fall of Nankin being prophesied within a few days.

The writer next proceeds to consider the causes of the Communist victory. The first cause he says is that the Communist Army is the democratic army of peasants and labourers whose duty is to serve the masses and not to tyrannise over or oppress them. On the contrary, Chiang‑Kai‑Shek's Army was a Jagiri army, whose duty was to protect the interests of Nawabs and jagirdars.

Passage "B"‑"How does the jagiri Army of Chiang‑Kai‑Shek treat the common people We can form an idea of it even while living in our own country because out jagiri Army also oppresses the frontier cultivators, fires at labourers and refugees and at the peasants of East Bengal and protects our jagiri system. When the soldiers go to a village, they use the peasant's property as if it were their own. Milk, curd, ghee, flour, rice and firewood are all procured forcibly and mostly without payment". The Communist Army however worked on different principles, their duty being to be kind and helpful to people, to return borrowed goods, to pay for broken goods and to be honest in all dealings with the peasants, and an instance is cited that when in 1944 there was famine in the Province of Hopen, twelve thousand Communist soldiers helped the people by sinking thousands of wells free of cost and again by building protective dams against flood waters and by cultivating the lands of people who had been stricken by famine. The Communist Army placed the smallest possible burden on the masses.

Passage "C"‑"The Army of Chiang‑Kai‑Shek consumes sixty‑seven per cent of the country's budget in addition to American aid. Similarly, the Pakistan Army consumes sixty per cent of our budget. That is to say, we earn one hundred rupees and pay a chaukidar sixty rupees to protect us." As for the Chinese Communist Army, it produces the greater part of its food itself, and, if need be, it shares its food with the masses. Next, complete democracy and brotherly relations prevail among all ranks of the Army but not at all in Chiang‑Kai‑Shek's Army. The Communist Army was fighting for high ideals including the elimina tion of jagirdari system and the introduction of socialism. It was because its Government was following the right policy and programme that the Chinese Communist Army had been victorious despite the fact that the opposing army was much larger and much better equipped Then follows in eleven paragraphs what may be compendiously described ac the manifesto of the Chinese Communist Par‑ This is followed by a part entitled "The Agricultural Revolution of China" which com mences with the statement that the Communist Party of China is actively implementing the promises contained in its manifesto. Here, unfavourable comparison is drawn between the Chinese Communist Party, and on the other side the Muslim League in Pakistan and the Congress Party in India which are said to have believed the great pro mises made at the time of the Elections that the jagirdari system would be ended and democratic Government established and instead had tyrannised over the people since they came into power. As for the Chinese Communist Party, even while their forces were fighting retreating actions, their leaders declared that if they could bring about the agricultural revolution, they would eventually win the war. This attitude is contrasted with what is alleged to be the attitude of the Muslim League Ministers and League leaders, who while admitting that the condition of the cultivators and labourers needs to be improved, make the excuse for their inaction that all their efforts has to be put into staving off foreign invasion, and further that they have not had enough time in which to get to work. The Communists on the other hand within a year placed six crores of peasants on the land, giving one to three acres of land to each, while at the same time they were fighting against an army of three millions. Their method of equal division of land is characterised as highly democratic and a brief description of it is given.

Finally, the writer proceeds to draw a moral from the events in China. It is that the organised mass of the people must always win against tyranny and oppression however strong The Chinese masses were fighting against American imperialism which though strong in appearance was weak in fact. In Pakistan also the Government circles and League leaders extol America and seek loans from it. Their policy of remaining within the Common Wealth was designed to secure help from the United States and England, but this kind of help had failed to save Chiang‑Kai‑Shek. In the last analysis responsibility for the bloodshed and distress caused by the war in China, lay upon the forces of American imperialism. Secondly, in every country in the world the jagirdars and capitalists were lining up with the United States and the United Kingdom to protect themselves and to crush democratic move ments. These classes in Pakistan were doing the same think ; they had sold the country to the English and were talking lightly of war. The governmental, pro‑governmental organs of publicity as well as the political leaders all support imperialism against the democratic move ment. A timid person might, while admitting the many and serious defects of the existing system, plead that the people were powerless against the forces which the Government could bring into play. The final successes of the Chinese Communist Party after twenty‑one years of struggle in which all the strength of the Government of Chiang‑Kai -Shek had been used against them, should put heart into such timid persons, so that they may resist firing imprisonments, hangings, suppression' of free speech and a free press, etc. The democratic movement was on the march. Hitler and Chiang‑Kai‑Shek had been disposed of. The power of democracy was rising, and democratic‑minded persons in this country could feel that they had with them twenty crores of labourers and peasants in Soviet Russia, ten crores of likeminded persons in Eastern Europe, together with lacs of such person in France and Italy and fifty crores of brave men in China. They should not feel alone or afraid. Then follows seven slogans of usual type.

Undoubtedly, the pamphlet is a skilfully written document. It makes the utmost of the recent successes of the Communist Party in China in order to propound the theory that democracy "must and will win against reactionary forces". It declares that of the major powers, those two supporting reactionary forces are the United States and the United Kingdom, and at the very end of the pamphlet the reference is made not to the powers, but to the peoples who are supporting the democratic movement namely the people of Russia and Eastern Europe, Communistic‑minded persons in France and Stay and the millions of China. Strong emphasis is laid upon the evil effects produced in China by the interference of American and British capitalists. The reactionary elements in China as embodied in the person of Chiang‑Kai‑Shek are condemned for relying so heavily on aid from America and Britian, which, despite its strength and volume, has not saved Chiang‑Kai‑Shek from utter defeat. In the person of Chiang‑Kai‑Shek also the jagirdars and capitalists of China are declared to have been defeated. The war in China, it is emphasized, was not of the Communist Party's seeking but resulted from Chiang‑Kai‑Shek's determination and greed for power, leading him to make one onslaught after another, latterly with the aid of America and Britian, upon the Chinese Communist Party whose defence was conducted so vigorously and with such success that even tually it was able to counter‑attack and drive the enemy before it right to the gates of Chiang‑Kai‑Shek's capital. While thus reclaiming territory from Chiang‑Kai‑Shek's control, the Communist Party resettled their followers on the land in such a way as to bring about an agricultural revolution. The benefits of this revolution and the brotherly treatment given to personal of the Communist Army as well as the fact that it was fighting for high ideals namely the establishment of a democratic Government of the common people were the main causes of the Communist Victory which involved elimination of capitalism and feudal landlordism. While the main argument is confined to Chinese affairs in the context, of the victories gained by the Communist Patty over Chiang‑Kai‑Shek's forces, references have been made in a few places to conditions in Pakistan, and it is these references which furnish the basis of the Crown allegation that the article is calculated to bring the existing Government of Pakistan as well as certain classes and sections of His Majesty's subjects in Pakistan into hatred and contempt. The question at once arises for consideration whether these references are of such a nature as indicate an intention on the part of the writer to attack and condemn the Government or the classes in question, or are these references of an indirect nature, necessary only for the purpose of elucidating or explaining that which was being said concerning a remote country and which for lack of simile might have failed to reach the apprehension of the average reader Would the average reader upon reading this pamphlet be impressed not so much by the account of happenings in China as by the references to the Government in Pakistan and the specified classes, which references it must be admitted are not complimentary

In attempting to answer these questions, it is first of all necessary to bear in mind that the pamphlet is plainly propagandist, in the sense that it sets out to assert the superiority of the Communist system over other systems of social organization, in particular that system which is based on feudal rights in land and capitalistic control of the means of industrial production. The writer taking advantage of the allegedly remarkable success which has attended Communist arms in China, attempts to show that this success is not a mere accident but sets the seal upon the all‑round superiority of the Communist idea over the feudalistic and capitalistic idea. As was pointed out by Mr. Mahmud Ali arguing for the petitioner, the Communist Party has not been declared unlawful in Pakistan and therefore there is nothing illegal in propagating the doctrines of communalism by legitimate means. It is of the essence of political propaganda that it should extol the merits of the policy of party or policy, and in order that such propaganda should produce the desired effect, it has to be expressed in language and by figures of speach which the common person might easily comprehend. Hence the necessity of furnishing, in such propaganda, concrete instances favouring the party or policy which is being supported, as well as instances adduced as furnishing condemnation of the opposite party or policy. The method as can easily be understood, is one which at time verges on libel, and often it is difficult to distinguish between propaganda of this kind which is merely libellous, and propaganda which is in the strict legal sense seditious. While on the one hand it is of the utmost importance that the Courts should act to suppress sedition, it is not less important that the freedom of political controversy on which to a very great extent in modern times, the political health and welfare of the community depends, should not be unduly restricted or hampered. It is necessary that the public to which the decision of so many questions of the utmost importance affecting their well being and in certain circumstances even the destiny is under modern conditions entrusted should by being acquainted fully with the merits and demerits of the various political theories offered to them, be in a position to judge for themselves along which path of the many, that political propagandists offer to them, their true well‑being lies. This involves free criticism of one political party by another, and it is commonly found that such criticism is couched in outspoken terms, and often in the language of exaggeration. This is so much the case that the populaces, in which the average reader of a pamphlet such as INQILAB‑I‑CHIN ZINDABAD would be included has in the course of many years of experience of political demagoguery, becomes thoroughly accustomed to discounting suitably, the over‑coloured language in which praise and blame is meted out by propagandists. In assessing the value to be attached to words employed in political pamphlets, and their effect upon the mind of the average reader, it is necessary to bear in mind this quality of the average reader, namely that he is now so well accustomed to political claptrap that the words employed do not produce upon his mind the effect which their dictionary meaning might suggest.

Having read the pamphlet several times, and attempted to appreciate its argument from the point of view of the average reader, the impres sion left upon my mind is that the references which it contains to condi tions in Pakistan are not pointed attacks upon the Government of Pakistan or any class of His Majesty's subjects in Pakistan, but that they are a part of the argument of the pamphlet inserted in order to ensure better comprehension by a reader unacquainted with Chinese conditions, and secondly that they are intended as political propaganda to advocate certain methods adopted by the Chinese Communist Party, in particular the elimination of interference by foreign capitalists, and imperialists, the abolition of feudal landlordism and capitalism, and reform of the Army so as to reduce its cost and increase its popularity among the people. Where in passage "A" the words are used we vow to follow in the footsteps of the Chinese Communist Party",' the words are obviously not to be taken literally but purely in a metaphorical sense, and in any case it is impossible to suggest that they require the reader or any one else to act exactly as the Chinese Communist Party, according to the pamphlet, has done because the necessary conditions do not exist in Pakistan i.e., the country is not in turmoil through foreign interference, and the other circu mstances which led to the Chinese Communist Party's struggle are not to be found at all. To suggest to the reader that it is right to save his motherland from "encroachment by foreign imperialists and exploitation by jagirdars and capitalists" without in any way inviting him, to act violently or illegally, certainly does not have the effect of bringing either the Government, or "the jagirdars and capitalists" into hatred or contempts, within the meanings of those strong expressions as they occur in section 4 (1) (d) of the Press Act. These words constitute in reality very mild political propaganda, to which no exception can be taken, in fact, to these words the average reader would not require to apply any discount in assessing their true value as apart from their propaganda value.

Passages "B" and "C" in the pamphlet have reference to the Army of Pakistan and again, the reference have been introduced, expressly by way of comparison and simile. It is of course possible to employ simile in such a way that, while on the surface it appears perfectly innocent, its true effect may be deleterious in the highest degree. On reading these passages carefully in the context in which they occur. I find it impossible to attach to them any such insidious or injurious design or effect. Contrasting the Armies of the Communists and Chiang‑Kai -Shek by reference to their real purposes, namely that the Communist Army is composed of peasants and labourers whom it seeks to serve, while Chiang‑Kai‑Shek's army is that of the feudal landlords the writer proceeds to explain the difference by pointing out that the behaviour of Chiang‑Kai‑Shek's army towards the common people is much the same as that of the Army in our own country, namely that when posted at the frontier, it treats the cultivators of those parts oppressively that its soldiers presumably under orders fire at labourers and refugees and at the peasants of East Bengal, and act to defend the existing landlord system ; moreover, the soldiers are accustomed to taking foodstuffs and other necessary articles from the villages they visit by force and mostly free of cost. This is contrasted with the behaviour of the Communist Army which is said to be wholly beneficent towards the common people. Again, it is said that the Communist Army provides its own food and its expense is very slight whereas the Army of Pakistan consumes sixty per cent of the budget of Pakistan. The latter statement is merely factual the supporting statement that it is equivalent to a man earning one hundred rupees and paying sixty rupees to his chawkidar does not by itself render the statement of fact in any way tendentious, for occasions frequently arise in the history of a country when self‑defence becomes the paramount need and the expenditure on defence conse quently assumes very large proportions. However that may be, the question is whether the statements, indirect though they may be, which exhibit the Army of Pakistan, in its contact with the common people, in an unfavourable light, are intended or calculated to bring their Army' into hatred or contempt.

At this stage, it will be convenient to deal with an argument put forward on behalf of the petitioner, namely that the Army of Pakistan‑ does not constitute a class or section of His Majesty's subjects within the meaning of section 4 (1) (d) of the Press Act. In support of this argument, learned counsel has been able to adduce the opinion of Agha Haider, J. in the case In re: The "Zamindar" Newspaper, Lahore (A I R 1934 Lah. 219 (S B)). In that case, the newspaper had published an item in which the following remarks were made :‑

"Everybody knows how the police implicates the innocent, cooks up the evidence, tortures the under trials in general and the political suspects in particular and victimizes peaceful demons trations regardless of age or sex. Police highhandedness, bribery and merceneryism are the communist associates in the popular mind".

The Provincial Government bad taken action under the Press Act, to forfeit a part of the deposit of security made by the newspaper, and this forfeiture was contested by means of a petition under section 23 of the Act. It was contended on behalf of the petitioner in that case that although the words employed were of a sweeping character, the police force in general could not be described as a class or section of His Majesty's subjects. Addison and Monroe, JJ. constituting the majority of the Special Bench, came to the .conclusion that the words constituted‑

"a bitter and scurrilous attack on the police in general and tend directly to bring them into hatred and contempt".

On the second question, they held that the attack was made upon the police as a whole, and that the police constituted‑

"a well‑defined group of His Majesty's subjects, they comprise a very large body of men ; they form a separable portion of the population of country ; they consist of a number of persons possessing common attributes and are grouped together under the name Police'. They thus form both a 'section' as well as a class' of His Majesty's subjects"

Agha Haider, J. took a different view. In his opinion, the passage in question when read with the remainder of the article could not be said to vilify the whole Provincial police service and thus to bring it into hatred or contempt, but on the contrary, by necessary implication, the criticism applied only to a certain part of the police force. As to the meaning of the expression "class or section of His Majesty's subjects", the learned judge thought that these words‑

"signify large portions of the population of His Majesty's subjects * * * and those portions should be determined not by any artificial or official designation but by some natural or spontaneous process where large masses of population are grouped into separate categories. In other words, the expression as it occurs in the subsection under consideration, refers to permanent and distinct elements of society which are to be found in the country and which exist and would continue to exist irrespective of any action of the Government. I have some such classifications in my mind, Indians, Europeans, Hindus, Muhammadans, Christians, Sikhs, Jats, Rajputs, Parsees, Budhists, etc., etc. I can also understand agricultural classes, working classes, upper classes, lower classes and so on".

Proceeding to observe that if the intention of the Act had been to provide against any attack calculated to bring into hatred or contempt any department of the Government, official draftsmen would have had no difficulty in finding suitable expressions for such an intention, the learned judge concluded that the police force as such was not a class of His Majesty's subjects within the meaning of the section. The view of Agha Haider, J. was approved in a recent case published as In re: Jangn i‑Azadi, Lahore (A I R 1948 Lah. 6) by Bhandari, J. In that case also, the words employed in the article in question were calculated to arouse anger in the mind of the reader towards the local police, although not towards the police force in general, and consequently the question was not precisely that which was before the Special Bench in the "Zamindar" case cited above. How ever, Bhandari J. preferred the view of Agha Haider J., citing the por tion of the passage which I have quoted above, and expressed himself as below

"I am inclined to prefer the view taken by Agha Haider J. to that taken by the other two judges. But it. is not necessary for the purposes of this case to examine the relative merits of these different and conflicting views for I am satisfied that the author of this article did not set out to criticise the entire police force of the Province but only chose members of the police force who were deputed to deal with the Morchas in the Majitha Sub -Divison".

Three other cases were cited in which the question of the meaning to be given to the expression "class of His Majesty's subjects" was examined. In B. Ram Saran v. Emperor (A I R 1934 All. 717) a learned single Judge of the Allahabad High Court concluded that a pamphlet which purported to deal with grievances of the poor against the rich was calculated to "promote feelings of enmity or hatred between different classes of His Majesty's subjects". The learned Single judge was of the opinion that by referring on the one side to the Kisan labourers and on the other side to the rich namely the zamindars, the bankers and the petty shop keepers, the pamphlet had specified sufficiently well‑defined classes for the purposes of the section in question which was section 16 of the Criminal Law Amendment Act, 1932. Again in the case In re : Rama lingayya (I L R 1937 Mad. 14) which was under the Press Act, the question being whether a certain pamphlet was calculated to bring into hatred or contempt a class or section of His Majesty's subjects within the meaning of section 4 (1) (d), a Division Bench of the Madras High Court held, that, the purport of the pamphlet being to show that the machinery of Government worked in aid to the rich, who were more specifically des cribed as zamindars, mill‑owners and land‑owners, as against the poor, labouring class, that "the rich" as more particularly specified in the pamphlet formed" a sufficiently ascertained class to satisfy the require ments of the Act". To the opposite effect is the decision of a Division Bench of the Bombay High Court published as Emperor v. Maniben Kara (I L R 57 Bom. 253). There, the question was whether in making a speech to a labour audience, in which the audience were exhorted to unite the fight the capitalists, the accused had been guilty of promoting feelings of enmity or hatred between different classes of His Majesty's subjects within the meaning of section 153‑A, Indian Penal Code. Beaumont C. J. and Nanavati J. were both of the opinion that the expression "capitalist" was altogether too vague to denote a definite and ascertainable class for the purposes of section 153‑A, Indian Penal Code.

It appears to me that in deciding the question whether a large and well‑ascertained body of men such as the personnel of a national army constitutes a class of subjects of the Sovereign in that nation, less assis tance is to be derived from consideration of the dictionary meanings of the word "class", than may perhaps be obtained from a proper cons truction of the relevant Statute, namely section 4 (1) of the Press Act. It will be seen at once that this subsection purports to define the various types of seditious activities which may be carried on through the medium of books, newspapers and other printed matter, which it is con sidered by the Legislature to be desirable to restrain. There are numerous definitions of the expressions "sedition". One of the most comprehensive is that contained in Paragraph 458 of the section on Criminal Law and Procedure in Halsbury's Laws of England, Volume 9, Hailsham Edition, where it is said:‑

"A seditious intention is an intention (1) to bring into hatred or contempt, or to excite disaffection against the King or the Government and Constitution of the United Kingdom, or either House of Parliament, or the administration of justice ; or (2) to excite the King's subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established; or (3) to incite persons to commit any crime in general disturbance of the peace ; or (4) to raise discontent or disaffection among His Majesty's subjects; or (5) to promote feelings of ill‑will and hostility between different classes of such subjects".

In Archbold's Criminal Pleadings, 31st Edition, at page 1115 "sedi tion" is defined:‑

"All those practices, whether by word, deed, or writing, which fall short of high treason, but directly tend or have for their object to excite discontent or dissatisfaction ; to excite ill‑will between different classes of the King's subjects ; to create public distur bances, or to lead to civil war ; to bring into hatred or contempt the sovereign or the government, the laws or constitution of the realm, and generally all endeavours to promote public disorder; or to incite people to unlawful associations, or assemblies, insurrections, breaches of the peace, or forcible obstruction of the execution of the law, or to use any form of physical force in any public matter connected with the State".

The learned author further adds that "exciting ill‑will between different classes of His Majesty's subjects may amount to sedition".

Referring now to section 4 of the Press Act, it will be found that the first type of activity, which it seeks to check is incitement to murder or any cognizable offence involving violence, and the expression of admi ration for any such offence. Next, it refers to writings calculated to seduce members of the armed forces of the Crown and of the police from their allegiance, and at this stage reference may also be made to clause (i) which relates to writings calculated to prejudice the recruiting of persons for service in the armed forces or police or the maintenance of discipline, etc., in the armed forces or the police. A cognate type of activity is referred to in clause (g), namely writings with the object of inducing a public servant or a servant of a local authority to do or not to do any thing connected with his official functions or to resign his office. The clause which provides against direct attacks on the Government is clause (d) which is directed against writings which bring into hatred or contempt (a) His Majesty or the Government established by law, in (b) the admi nistration of justice, and (c) and class or section of His Majesty's subjects in British India, or (d) which tend to excite disaffection towards His Majesty or the said Government. Clause (f) also relates to the affairs of Government inasmuch as it retains writings which are calculated to incite persons to interfere with the administration of the law or with public order or to commit any offence, or to refuse payment of taxes or rents, etc., all such activities are calculated to hamper the work of the Government in a very serious manner and to create public disorder. Then there is clause (h) which checks writings calculated to promote hostility between different classes of subject ; this is a well recognised form of sedition. Finally, there is a clause (e) which relates to the intimidation of individuals, and follows to a great extent the wording of sections 383 (extortion) and 503 (criminal intimidation) in the Indian Penal Code. This type of activity, if practised on a large scale could un doubtedly be described as seditious, but when practised against individuals, it can hardly possess the character of a sedition, and the cause for the provision against it made in section 4 (1) of the Press Act has perhaps to be found in a tendency to blackmail individuals which some newspapers may have been exhibiting at the time when the law was enacted. The other provisions in section 4 (1) all relate clearly to sedition, as the term is ordinarily understood, and in particular clause (d) relates to that type of sedition which may be compendiously described as creating disaffection towards the Sovereign or the established Government. As will be seen, the definition in Halsbury's Laws of England also includes the administration of justice as being protected against vilifica tion, under the penalties of sedition, but this appears to be the only exception recognised by the English Law to the rule that for the purposes of sedition, the Government is a distinct entity from its servants. "There is no sedition in censuring the servants of the Crown." (Per Fitzgerald J.‑Cos Criminal Law Cases, Volume II, page 44 R. v. Sullivan and R. v. Pigott) it is a well recognised principle of the English Law, although this does not exclude the possibility that there may be a sedition by striking at the Government through its servants. For the pur poses of the criminal law, sedition in Pakistan as well includes nothing except attacks on the Sovereign or on the established Government ; even an attack on the administration of justice would not fall under section 124‑A, Indian Penal Code. The mischief of section 4 of the Press Act, is however, very much wider than that of section 124‑A, Indian Penal Code, and in particular, the provisions of clause (d) of subsection (1) are not to be narrowly constructed in the light of the definition of sedition in section 124‑A, Indian Penal Code. What is, however, highly significant is that the scope of clause (d). aforesaid, extends beyond that of section 124‑A, Indian Penal Code, by including two further entities for protection, namely, firstly the administration of justice and secondly, "any class or section of His Majesty's subjects in British India". There can be no doubt that if it is sought to bring any person within the expression " class or section of His Majesty's subjects", is will be necessary first of all to look for well‑ascertained, well‑defined and sufficiently numerous groups. These conditions would undoubtedly be satisfied by a body of say 100,000 persons, which, we are told, is the approximate strength of the Pakistan Army, who are collectively referred to in common parlance as " military personnel", and whose distinction from the civilian section of the population is thoroughly well‑recognised. This large body of persons is subject to a common command, a common duty and loyalty and in external ways is kept as far as possible distinct from the rest of the population by living and massing together, and by their contact with the civilian population being restrained under military discipline to a very great extent. When this large body of persons thus bears all the external marks of an easily, distinguishable class among the subjects of His Majesty in the Dominion : is there any good reason why they should not be considered as falling within the meaning of the expression class or section of His Majesty's subjects" in clause (d) In the judgment of Agha Haider J. which has been mentioned above, I have quoted a passage in which His Lordship expressed the opinion that this expres sion signified " large portions of the population", and proceeded to remark that "those portions should be determined not ,by any artificial or official designation, but by some natural or spontaneous process where large masses of population are grouped into separate categories". Speaking with great respect, I find it difficult to avoid the remark that, in reaching the conclusion that a distinction based on possession of official status was not to be recognised for the purposes of classifica tion in the relevant sense, Agha Haidar J. perhaps overlooked the fact that the protection provided by statute for "any class or section of His Majesty's subjects" was contained in a clause of subsection (1) of section 4 which otherwise was devoted exclusively to providing protection for His Majesty, the established Government and the administration of justice, each of which is a matter directly connected with established authority, in other words the organisation of Govern ment in the State. Therefore, the natural inference would be that the possession of official status by a group of persons, answering other wise to the requirements of a "class or section of His Majesty's subjects", would rather assist in specifying and determining the class or sections as such than, as was thought by Agha Haidar J., whose view was later ap proved by Bhandari J., as producing the opposite eflect, so as to confuse this group of persons with the rest of the population. In other words, when the Legislature in a measure which in the main and by expression seeks to confer protection' upon the Sovereign and the Government and the administration of justice in a country, against attacks calculated to bring them into hatred or contempt or to excite disaffection to wards them, also confers the same benefits upon "any class or section of His Majesty's subjects", then, in constructing the expression "class or section " for the purpose's of allowing such benefit, if one of the qualities possessed by the class or section in question is that of being associated with the established 'Government, by the enjoyment of a common official status, such quality must necessarily weigh in favour of the grant of the protection rather than against such grant. There fore, and again speaking with great respect for the view expressed by Agha Haider J., I am clearly of the opinion that the opposite view maintained by Addison and Monroe JJ. in the "Zamindar" case, is the one which, upon a true construction of section 4 (1) (d), is better entitled to adherence.

I am fortified in this conclusion by considerations derived from the well‑known case Annie Besant v. The Advocate‑General of Madras (A I R 1919 PC31.). A notice of forfeiture of security had been issued against a newspaper, on the ground that it contained ' words, signs or visible representations of the nature described in section 4 (1) of the Indian Press Act, 1910, clause (c) of which corresponding to clause (d) of section 4 (1) of the present Act ran a s follows :‑

" (c) to bring into hatred or contempt His Majesty or the Govern ment established by law in British India, or the administration of justice in British India, or any Native Prince or Chief under the suzeranity of His Majesty, or any class or section of His Majesty's subjects in British India, or to excite disaffection towards His Majesty or the said Government or any such Prince or Chief:"

The references to Native Princes and Chiefs underlined above have been omitted from the present clause (d). Among the articles specified in the notice of forfeiture were some which were alleged to offend against clause (c). Their Lordships of the Judicial Committee refer to these articles in the following terms

"As to clause (c) the majority of the judges in the High Court were brought to conclusion that the attacks on Anglo‑Indian or Anglo‑Indians or the Bureaucracy, as the case may be were calculated whatever might have been, primary object of the writer to bring into hatred or contempt persons forming a class or section of His Majesty's subjects, namely, English Civil Servants in India, in some cases Englishmen' in India, generally * * * upon careful perusal of the several judgments their Lordships find that weight has been properly given to the several portions of the section. They do not find that the section has been misconstrued. * "". (The underlining is mine).

Observing that constitutional limitations prevented the Judicial Com mittee from interfering with conclusions on questions of fact arrived at by the Courts in India, their Lordships recorded the following conclusion on the point :‑

" But in the particular circumstances of this case, and after the elaborate argument at the Ear, their Lordships think it well to go further and to say that, if they considered it proper to look into the matter in detail they would hold that the articles which were the subject of unanimous condemnation and at least some of those which came under the censure of the judges in the High Court, were obnoxious to the provisions of clause (c) * * "

Their Lordships of the Judicial Committee were not called upon directly to construe the clause, with special reference to the meaning and context of the expression "class or section of His Majesty's subjects" but they were clearly of the view that in construing that expre ssion as including " English Civil Servants in India " the Madras High Court had not committed any errors of misconstruction, and it is reasonable to infer that the Civil Servants of the country generally, irrespective of race, and forming a body of persons enormously greater than the body of "English Civil Servants" would, by the same reasoning, fall within the expression. It is not a material difference that the body of persons here concerned renders military, and not civil service. I would accordingly hold that the Army of Pakistan constitutes for the purposes of section 4 (1) (d) of the Press Act, a "class or section of His Majesty's subjects".

Having decided so much, it still remains, however, to see whether passage " B " marked in the pamphlet is calculated to bring the Pakistan Army into hatred or contempt. The writer remarks that the Pakistan Army "oppresses" the cultivators at the frontier. He charges them with firing at labourers, refugees and East Bengal peasants, and acting as protector of the jagiri system. He declares that when Pakistan soldiers go to a village, they appropriate the peasants' property to themselves, and procure foodstuffs and other necessities for themselves forcibly, and mostly free of cost. Are these expressions calculated, in the existing circumstances, to bring the Army of Pakistan into hatred or contempt Now, in answering that question it is important to notice, first of all, that these statements made in respect of the Pakistan Army have not been controverted on the side of the Gov ernment by any affidavit. In view of this, the Court is entitled to regard the statements made as true. Under Rule 10 of the Rules framed by this Court under the Press Act, the Crown is entitled to controvert statements of fact in the articles complained by means of affidavit and as has been held by Munir, J. in the case In re : Nawai‑i‑Waqt Daily (A I R 1948 Lah. 161 (S B)), where there is no such affidavit by the Crown, the facts stated in the newspaper's report must be accepted as correct. It is of course not necessary in order to bring a statement within the mischief of section 4 (1) (d), as bringing a class of subjects into hatred or con tempt, that such statements should be untrue in fact. At the same time, the dissemination of correct information being one of the functions of the public press and equally, of political propagandists, where a statement of the relevant kind is found .to be true, its effect must be measured on an entirely different basis from that of a statement which is untrue. But, if the statement made regarding the Army of Pakistan be analysed, is it of a kind calculated to cause the strong revulsion of feeling against the body aspersed which alone can be described as contempt or hatred Contempt in the active sense may be defined as "the ct of viewing another as mean, vile or worthless" and hatred is a "sustained feeling of bitter aversion or dislike generally combined with a desire to injure, destroy, or get rid of its object". So far as I can see, there is nothing in the statements objected to which could lead any one to regard the Army of Pakistan as "mean, vile or worthless" or to create such a degree of hostility towards it as would render the subject likely to attempt to injure the Army. The allegation that on the "frontier", presumably under conditions of semi‑active service the Army treats the local inhabitants roughly may or may not be true, but is it of a kind which will come as a shock and a surprise to the public Is it not the case that, in such conditions, the subjection of the ordinary citizen to inconsiderate and even rough treatment is in evitable Is gentleness towards the nationals so much the recognised characteristic of any Army engaged actively in the defence of the country, that any degree of roughness would turn the hearts of the people against them Or, on the contrary, is it not the case that such experiences are so common, and of such long standing, as to be almost a tradition When Shakespeare puts into the mouth of kind Henry V the words "the flesh d soldier rough and hard of heart," speaking with reference to his own Army, can it be that the intention was to bring that Army into hatred or contempt The truth is that not merely roughness, but even brutality and licentiousness are by tradition associated with the rank and the file of an Army, and such traditions die hard. Consequently, no one is likely to be greatly affected in his opinion of his national army by a mere statement that its personnel treats the citizens roughly or inconsiderately at times. That the Army when called upon by the authorities may be required to shoot at its own fellow subjects during times of commotion and disturbances is so well known that the statement that soldiers do shoot at labourers, Muhajirs and peasants, would not in any way affect the esteem in which the Army as a whole is held among the people or even among the readers of pamphlets such as INQILAB‑I‑CHIN ZINDABAD. As for the allegation that soldiers appropriate property wherever they go, it is undeniable that words such as commandeering, billeting and re quisitioning, representing acts which are inseparable from the operations of an Army on active service, have acquired among the people a meaning akin to that of mitigated spoliation. The necessities of the Army can of course never give way to the convenience of the people of the area where military operations are being carried on, and the people must be prepared to part with their property and even their houses for the sake of the troops, and although the maximum care may be taken to see that no article so taken or service used remains unpaid for the attitude of the people whose property and services are taken cannot be expected to be wholly favourable, and it is also well‑known that perhaps owing to the haste or confusion which generally accomp any the operations of the troops, many persons remain uncompensated for their goods or services These matters are within common know ledge to such an extent that their mere expression cannot have the slightest effect upon the opinion in which the Army of the nation is generally held by the people. Consequently, I am clearly of the opinion that there is nothing in passage "B" of a kind or quality such as to bring the Army of Pakistan into contempt and that these passages, " A " and "C" does not fall within clause (d) of subsection (1) of section 4 of the Press Act. Nor does any one of these passages in my opinion, fall within the meaning of any other clause of this subsection.

I am, therefore, persuaded that the passages in the pamphlet INQILAB-I‑CHIN ZINDABAD, in respect of which the order of the Provincial Government, dated the 29th January 1949, was made, under section 3 (3) of the Press Act, are not of the nature described in subsection (1) of section 4 of that Act, and I would, therefore, set aside the aforesaid order. Having regard to all the circumstances, of the case, I would leave the parties to bear their own costs.

A. Muhammad Jan, J.‑On the 29th January 1949 a notice under subsection (3) of section 3, Indian Press (Emergency Powers) Act, XXIII of 1931, was issued to Mr. Sher Muhammad, keeper of the Co‑operative Capital Press, Wattan Building, Akbari Gate, Lahore, stating that it appeared to the Governor of West Punjab that the Co‑operative Capital Press, in respect of which a declaration had been made under section 4 of the Press and Registration of Books Act, XXV of 1867, on the 26th April 1945 before the District Magistrate, Lahore, had been used for the purpose described in clause (d), subsection (1) of section 4, Indian Press (Emergency Powers) Act, XXIII of 1931, namely to print a book entitled INQILAB‑I‑CHIN ZINDABAD, translations of some passages of which were annexed thereto, and in exercise of the powers conferred by subsection (3) of section 3 of the aforesaid Act, the Governor, West Punjab, required the keeper of the press to deposit with the District Magistrate of Lahore, on or before the 8th day of February 1949, security to the amount of Rs. 1,000. On 5th February 1949, the keeper of the press filed a petition under section 23. Indian Press (Emergency Powers) Act to challenge the validity of the notice given to him by the Governor. The main grounds of attack are as follows :‑

"(l) The Governor has failed to indicate in what manner the publi cation in question offends against clause (d) of subsection (1) of section 4 of the Act ;

(2) the three passages, objected to are set out in appendix "B" attached to the notice and are marked "A" "B" and "C". In passages "B" and "C" no definite words have been quoted and the order is bad on that account ;

(3) the pamphlet entitled INQILAB‑I‑CHIN ZINDABAD does not offend against any provisions of clause (d) of subsection (1) of section 4 of the Act ; and

(4) in any event, in printing the pamphlet the petitioner had no intention to offend against any part of clause (d) of section 4 of the Act, and if it be held that the pamphlet came within the purview of clause (d), it was saved by the explanations given in section 4."

Section (d) of the Press Act provides that whenever it appears to the Provincial Government that any printing press . . . . is used for the purpose of printing or publishing any newspaper, book or document containing any words . . . . which tend directly or indirectly to bring into hatred or contempt His Majesty or the Government established by law . . . . or administration of justice . . . . or any class or section of His Majesty's subject . . . . or to excite disaffection towards His Majesty or the said Government, the Provincial Government may, by notice in writing to the keeper of such printing press, stating or describing the words . . . . which in its opinion are of the nature described above . . . declare the security or any portion thereof, to be forfeited to His Majesty, and may also declare all copies of such newspapers, book or other document . . . . to be forfeited to His Majesty." It appears that no security was taken from the Co‑operative Capital Press at the time of making the declaration and they were required to furnish security now under subsection (3) of section 3 of the Press Act, which says that whenever it appears to the Provincial Government that any printing press within its jurisdiction, in respect of which security under the pro vision of this Act, has not been required . . . . is used for the purpose of printing or publishing any newspaper, book or other document con taining any words . . . . of the nature described in section 4, sub section (1), the Provincial Government may, by notice in writing to the keeper of the press, stating or describing such words . . . order the keeper to deposit security to such an amount, not being less than five hundred rupees or more than three thousand rupees, as the Pro vincial Government may think fit to require. The relevant explanations in section 4 on which the petitioner has relied are explanations 2 and 3 which lay down that comments expressing disapprobation of the mea sures of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection and comments expressing disapprobation of the administra tive or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, shall not be deemed to be of the nature described in clause (a) of this subsection.

The passages occurring in the pamphlet INQILAB‑I‑CHIN ZINDABAD and objected to by the Government are as follows:‑

"(a) The Pakistan Communist Party welcomes to‑day the Chinese revolution, the heroic souls of China and the Chinese Com munist Party which led them. It offers them ovations and bows to their revolutionary standard and pledges that by treading in their footsteps it would also purge its lovely green land of foreign imperialists depredations and of exploitation by feudalists and capitalists and would establish here too a popular democratic system which would guarantee peace, prosperity and freedom.

(b) The pamphlet refers to and represents the Pakistan Army as one given to committing aggression and forcibly extorting food stuff, etc., from the peasants residing on the border.

(c) The pamphlet makes another attempt to unpopularise the Pakistan Armed Forces by holding them as expensive as Chiang- Kai‑Shek's Armed Forces, and characterises the Chinese Communist Troops as self‑denying and self‑sacrificing".

In paragraph (a) I cannot see any words which tend, directly or in directly, to bring anyone into hatred or contempt or to excite disaffec tion towards anyone. The pamphlet has been very obviously published by the Communist Party and they merely applaud the Communist Party of China on the success achieved by them in gaining power to rule in their own country. Pledge is taken in this paragraph by the Communist Party of Pakistan to purge the country of foreign imperialists' depreda tions and of exploitation by feudalists and capitalists. Depredation is not good for any country, nor is exploitation which is prejudicial to the community. A pledge to rid the country of such harmful operations by foreign imperialists or native feudalists is not prejudicial to the interests of the State. The further pledge to establish in Pakistan a popular and a democratic system of Government which would guarantee peace, prosperity and freedom is perfectly in accord with the Objective Resolution passed by the Constituent Assembly stating the ideals of the State of Pakistan: I have, therefore, no hesitation in holding that paragraph (a) of appendix "B" does not offend against the provisions of clause (d), subsection (1) of section (4) Indian Press Act.

Clauses (b) and (c), as stated in the petition, do not state the actual words objected to ; but they do, to an extent, describe them and, there fore, the notice cannot be held invalid for lack of description of the offending words in the pamphlet.

The learned A. A. G. has made a selection of the passages occurring in the pamphlet which he maintains are described in the passages marked "B" and "C" in appendix "B". They are as follows :‑

Clause "B". "How does the jagiri Army of Chiang‑Kai‑Shek treat the common pepole We can form an idea of it even while living in our own country because our jagiri Army also oppresses the frontier cultivators, fires at labourers and Muhajirs and the peasants of East Bengal and protects our Jagiri system. When soldiers go to a village, they may use of the property of peasants as if it is their own personal property. Milk, curd, ghee, flour, rice and fire‑wood are all being obtained forcibly and, mostly free of cost".

It goes on to say :---

"But the Free Democratic Army is based on other principles. There is a popular Free Army song with the heading. 'The masses are our patron'. Here are a few lines of the song :‑

'Treat the people kindly and help them as far as possible'. 'Return all the borrowed goods'.

'If you break any article, pay penalty for it to the owner'. 'Be honest in your dealings with the peasants'.

'Pay for whatever you buy'.

Clause "C". "The Free Army places the smallest burden on the masses. The Army of Chiang‑Kai‑Shek eats up sixty‑seven per cent of the country Budget in addition to the American aid. Similarly, the Pakistan Army spends sixty per cent of our bud get. That is to say, we earn one hundred rupees and, for our protection keep a chaukidar on sixty rupees".

The Free Army song quoted with approval in passage "B" contains advice which, in my opinion, is very correct and in accordance with the principles of Islam. The Army of Pakistan has, however, come in for some criticism inasmuch as some members of it have been accused of oppressing the frontier cultivators, firing on labourers, Muhajirs and the peasants of East Bengal. They have also been accused of obtaining food and fire‑wood without payment and it is pointed out that such conduct is not worthy of a Free Democratic Army. In the first place, I do not consider this criticism to be directed against the entire Army of Pakistan. The whole Army is not engaged in dealing with frontier cultivators, labourers, Muhajirs or the peasants of East Bengal. Nor is the whole Army placed in villages where they make use of the property of peasants as if it is their own or obtain food or fire‑wood without payment. Very obviously the reference is to some soldiers who, according to the infor mation of the pamphleteer, had acted in the manner complained of. This criticism of a few ill behaved soldiers does not, in my opinion, tend directly or indirectly to bring the whole Army of Pakistan into hatred or contempt. The question whether the Army is or is not a class or section of His Majesty's subjects does 'not arise in view of my finding that the words complained of do not excite any hatred, or contempt for the Army as a whole. But the question has been raised by the learned counsel for the petitioner and a number of authorities have been cited for and against the contention that the Army is a class or section of His Majesty's subjects. I consider it desirable, therefore, to express my views on the subject. None of the cases which have been cited before us relates to the Army. Some of them, however, relate to the police and in my opinion, for the purpose of determining whether the Army is a class or section of His Majesty s subjects or not, there is no difference between the police and the Army. So far as the criticism of only a few Government officials is concerned, it was held in the matter of JANG -I‑AZADI LAHORE reported in A I R 1948 Lahore 6, that a handful of Government officers cannot be regarded as the Government estab lished by law and a general criticism of some officer or officers cannot be deemed to be a criticism of the Government. It was further held that attacks on individual police officers do not bring into hatred or contempt either the Government established by law or any class or section of His Majesty's subjects. Bhandari, J, who was a member of the Special Bench which decided this case, remarked in an obiter dictum that the entire police force of a Province cannot be said to be a class or section of His Majesty's subjects within the meaning of section 4 (1) (d), Indian Press Act. Reliance was placed by the learned judge for this opinion on the dissenting view of Agha Haider, J. in the matter of Zamindar Newspaper, Lahore (A I R 1934 Lah. 219). The words "class or section" according to Agha Haider J. signify large portions of the population which should be determined not by any artificial or official designation but by some natural or spontaneous process whereby large masses of population are grouped into separate categories. They should be permanent and distinct elements of society which exist and would continue to exist, irrespective of any action of the Government, i.e., Indians, Europeans, Hindus, Muhammadans, Christians, Sikhs, Jats, Rajputs, Parsis, Budhists, etc., etc., and the agricultural classes, working classes, upper classes and lower classes etc., etc. It is true that they are sections and classes of His Majesty's subjects, but it does not mean that the Army or the Police Force cannot be a section or class of His Majesty's subjects too. The Army and the police may be less in numbers than the Hindus or Muslims just as the Sikhs and Budhists are less than the Hindus and Muhammadans, but they are sections of His Majesty's subjects all the same. The majority view expressed by Addison and Monroe JJ. in the above‑mentioned case was that the police comprise a very large body of men ; they form a separable portion of the popula tion of the country ; they consist of a number of persons possessing common attributes and they are a well defined group of His Majesty's subjects. They were, therefore, held to be a section as well as a class of His Majesty's subject. These observations apply equally to the Army and I have no hesitation in holding that the Army is a section of) His Majesty's subjects within the meaning of section 4 (1) (d) Press Act.

Passage "C" merely talks of our spending sixty per cent. of our income on the Army and it is open to every citizen to say that, in his opinion, more money is being spent on a particular department of the State than should be. These words do not, in my opinion, tend directly or indirectly to bring the Army into hatred or contempt. The budget is prepared by politicians and can be changed from year to year. Passages 'A" and "C" of appendix "B" are, in my opinion, perfectly innocuous. Passage "B" is partly a good advice and partly disapprobation of the conduct of some soldiers who conducted themselves in the manner alleged. It is not an attack on the entire Army and, therefore, does not offend against the provisions of section 4 (1) (d), Press Act, But even if it be construed as an attack on the Army and, as much, on a section or class of His Majesty's subjects, the words, in my opinion, do not excite or attempt to excite hatred or contempt against the Army and are saved by explanation 3 to section 4 Press Act.

For the reasons given above, I would accept this petition and set aside the order of the Government requiring the petitioner to deposit a security of Rs. 1,000. I would leave the parties to bear their own costs.

Muhammad Khurshid Zaman, J.---

I have had the advantage of reading the judgment of Cornelius J. and I fully agree with it. I, however,

wish to add a few words on the question section within the meaning of clause (d) of sub-section (1) to section (4) of the Press (Emergency Powers) Act. There is no reported case in which the question before us had been answered one way or the other. The learned counsel for the parties, however, referred to certain authorities of this Court in which the question to be decided was whether an attack on the police force as a whole or on some members of it fell within the mischief of the section. It is not disputed that the position of the Army is analogous to that of the police. The relevancy of these cases, therefore, cannot be questioned.

In the earliest case reported in A I R 1923 Lahore 61, the Punjab Government had ordered forfeiture of the security deposited by the Parkash Printing Press in compliance with an order made under section 10 of the Act on the ground that it was used for printing the issue of the Partap newspaper published on the 27th December 1921 in which a libellous attack was made on certain members of the police force who were employed in maintaining order at Firozpur‑Jhirka. It was held in that case that the police officials who were referred to in the objected paragraph did not constitute a class or section of His Majesty's subjects. In the course of his judgment Sir Shadi Lal C. J. observed as follows:‑

I am not, however, prepared to accede to the contention that the police officials referred to in the paragraph constitute a class or section of His Majesty's subjects. In my opinion, a class or section as contemplated by clause (c) connotes a well defined group of His Majesty's subjects and I do not think that a fortuitous concourse of one or two Inspectors or Sub‑Inspectors and a few police men, who happen to be employed at a particular place, can be designated a section of His Majesty's subjects, much less a class thereof. The expression 'section of His Majesty's subjects', signifies a distinct portion of His Majesty's subjects and it would be straining the language to describe the aforesaid group of officials by that phrase."

The question again came up for consideration in 149 I C 370. The Government had made an order declaring part of the security deposited by the Zamindar newspaper forfeited to His Majesty on the ground that an article which appeared in the English supplement of the newspaper contained words which in the opinion of the Government were of the nature described in clauses (d), (h) and (i) of subsection (1) to section 4 of the Act, inasmuch as they contained an attack on the police in general.

Addison J. after expressing his agreement with the views expressed by Shadi Lal C. J. in 1923 Lahore 61, proceeded to distinguish the case he was dealing with from the earlier case and observed:‑

In the present case, however, there is an attack upon the Police as a whole a well defined group of His Majesty's subjects: they comprise a very large body of men ; they form a separable portion of the population of the country ; they consist of a number of persons possessing common attributes and are grouped together under the name 'police'. They thus form both a 'section' as well as a 'class' of His Majesty's subjects in British India and I have no hesitation in so holding".

Monroe J. fully agreed with this view, but Agha Haidar J. who was the third member of the Special Bench wrote a dissenting judgment. After referring with approval to the observations of Sir Shadi Lal C. J. in A I R 1923 Lah. 61 reproduced above, His Lordship expressed his own views in the following words.

If I may be permitted to supplement the observations of the learned Chief Justice in view of the exigencies of the present case, I would hold that the words 'class or section' in this context signify large portions of the population of His Majesty's subjects in British India and those portions should be determined not by any artificial or official designation but by some natural or spontaneous process whereby large masses of population are grouped into separate categories. In other words the expression as it occurs in the subsection under consideration, refers to permanent and distinct elements of society which are to be found in the country and which exist and would continue to exist irrespective of any action of the Government. I have some such classification in my mind, Indians, Europeans, Hindus, Muhammadans, Christians, Sikhs, Jats, Rajputs, Parsees, Budhists, etc., etc. I can also understand agricultural classes, working classes, upper classes, lower classes and so on. I do not see any justification for putting a narrow construction upon the plain language of section 4 (f) (d) when such a construction might go against the petitioner and specially when a larger and more liberal construction which would favour him, is also possible The provisions of the Indian Press (Emergency Powers) Act 1931, are of a penal character and, according to the well‑recognised principles of construction, they should not be construed strictly to the detriment of the subjects. I do not see any reason why the words 'class or sections' in section 4 (1) (d) should be construed to mean a fraction of the members of a particular department of the British Government in India".

In a subsequent case reported in A I R 1948 Lahore 6, Bhandari J. expressed himself in the following words :‑

" I am inclined to prefer the view taken by Agha Haider J: to that taken by the other two judges. But it is not necessary for the purposes of this case to examine the relative merits of these different and conflicting views for I am satisfied that the author of this article did not set out to criticise the entire police force of the Province but only those members of the police force who were deputed to deal with the Morchas in the Majitha Sub‑Division".

These observations are in the nature of obiter dicta, but apart from this, the views expressed by Bhandari J., are of no assistance in deciding the question before us, as he has not considered it necessary to give his reasons for preferring the view taken by Agha Haider J. to the majority view.

The expression "Class" or "Sections" occurring in clause (d) of sub section (1) to section 4 has not been defined anywhere. Addison J. mainly relied on the dictionary meaning of the words "class" and "Section". Now one of the rules of construing statutes is that they shall be construed uti loquitur vulgus, that is, according to the common understanding and acceptation of the terms.

Speaking for myself I have not the slightest doubt as to the plain meaning of the words "class" or "sections" as used in clause (d), and when these words are construed according to their ordinary meaning they, in my opinion, fully cover such distinct and well defined groups of His Majesty's subjects as the Army and the Police ; particularly the Army as it comprises a fairly large portion of the population, owes a special duty to the Crown and Country and has its own Rules and Regulations for internal government. But in view of the conflict created by the view taken by Agha Haider J. it is necessary to construe the words in reference to the context in which they are used.

A perusal of this section would clearly show that in enacting it, the main anxiety of the Legislature was to provide protection to the Govern ment against certain forms of sedition, some of them affecting it directly and the others only indirectly. The words occurring immediately before and after the words "any class or section of His Majesty's subjects in British India" in clause (d) of subsection (1) refer to some of the forms of sedition which directly affect the Government. Reading the words in this context, as they should be read, it is not, in my opinion possible to hold that the Army is excluded from the protection simply because it is associated with the Government and has an official designation.

Agha Haider J. seemed to be of the view that the question whether a large portion of His Majesty's subjects is "class" or "section" within the meaning of clause (d) must be determined "by some natural or spontaneous process and not by artificial or official designation". With the utmost respect, I have not been able to persuade myself to take this view of the matter. Whether the words are construed according to their ordinary meaning or with reference to the context in which they are used, they must be held to include the Army. Therefore, respectfully agreeing with the view taken by Addison and Monroe JJ. in 149 I C 370 and by my brother Cornelius J. in the present case, I would hold that the Army is a class within the meaning of clause (d) of subsection (1) of section 4 of the Press (Emergency Powers) Act.

A. H. Petition accepted.

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