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Miscellaneous Applications Nos. 101 and 102 of 1952, decided in March 1953.
, S. 4 (1) (d)‑Whether Governor of Province can be said to be "Government" of Province‑General Clauses Act (X of 1897), Ss. 3 (21) and 43 (a)‑Term Government‑Includes both Central and Provincial Governments‑Provincial Government‑Includes person authorised to administer executive government in the Province.
In the present case D. M. who kept a printing press at K, printed and published in various issues of a daily newspaper certain passages calculated to bring into hatred the Govern ment of Sind established by law and to promote feelings of hatred between the different classes of Her Majesty's subjects.
The Chief Commissioner of K, therefore, served two separate notices one under subsection (3) of section 3, Press (Emergency Powers) Act, 1931, and another under sub section (3) of section 7 of the said act and ordered him to deposit Rs. 3,000 under each. D. M. challenged both the orders under section 23 of the Press (Emergency Powers) Act, contending that the articles contained criticism of the Governor of Province and as such they did not bring into hatred or contempt the Government of Province established by. law nor did they promote feelings of enmity or hatred between different classes of Her Majesty's subjects.
Held, that the Governor of a Province is the Government of such Province within the meaning of section 4 (1) (d) of the Press (Emergency Powers) Act. The Act does not define "Government" but it is a Central Act and so far the definition of the words of a Central Act is concerned the reference is to be made to the General Clauses Act, 1897. Section 3 (21) of the General Clauses Act, defines "Government" to include both the Central and Provincial Governments and section 3 (43‑a) defines " Provincial Government" as respects anything done or to be done after the establishment of Pakistan shall mean in a Governor's Province the Governor.
Further, that for the purpose of appreciating whether or not a particular piece of writing falls within the mischief of any of the prohibitions enumerated in section 4 (1) of the Press (Emergency Powers) Act, it is necessary that the article should be read as a whole in a fair, free and liberal spirit, not concentrating in isolated passages or words but endeavouring to grasp the theme and intention of the writer from the words he has employed, attempting to estimate at the same time, the effect of those words, and the manner of their employment, upon the mind of the average reader.
In re: Anand Bazar Patrika. I L R 60 Cal. 408, Bal Ganga dhar Tilak v. Emperor A I R 1916 Bom. 9 at page 47, Emperor v. Satya Ramjan Bakshi I L R 56 Cal. 1085 and In the matter of Daily Ehsan P L D 1949 Lah. 282 at page 299 ref.
Hassanally A. Rehman for Applicant. H. T. Raymond for Opponent.
On J 22nd July 1952, the Chief Commissioner of Karachi issued to Din Muhammad Mistri two notices
(1) Under subsection (3) of section 3 of the Press (Emergency Powers) Act, 1931, as Keeper of the "Alwahid" Electric Printing Press, Karachi and ordered him to deposit a security of Rs. 3,000; and
(2) under subsection (3) of section 7 of the said Act as Publisher of the Daily Sind, "Alwahid", and ordered him to deposit a security of Rs. 3,000. The said two notices were issued for having printed and published various issues of the Daily Sind "Alwahid" containing passages, annexures to the two notices. These passages were calculated, as the notices mentioned, to bring into hatred the Government of Sind established by law and to promote feelings of hatred between different classes of Her Majesty's subjects.
Din Muhammad Mistri has challenged both the said orders under section 23 of the Press (Emergency Powers) Act, 1931, by separate petitions (Miscellaneous Applications Nos. 101 and 102 of 1952), and these may conveniently be disposed of by one judgment.
The passages given in the two annexures appear in several issues of the Sindhi Daily "Alwahid", viz., on 13th March, 11th April, 23rd April, 30th April, 23rd May, 15th May, 28th May, 4th June and 6th June 1952.
Mr. Raymond, the learned counsel for the Crown submitted that the offending passages given in the annexures contravened sub‑clauses (d) and (h) of section 4 (1) of the Press (Emergency Powers) Act, 1931. Mr. Hassanally, the learned counsel for the applicant, confined his arguments to these two clauses of the section.
The relevant portion of section 4 of the Press (Emergency Powers) Act, 1931, may be reproduced as under
"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 Government established by law in the Province and the Capital of the Federation or the administration of justice in the Provinces and the Capital of the Federation or any class or section of His Majesty's subjects in the Provinces and the Capital of the Federation, or to excite disaffection towards His Majesty or the said Government, or
(h) to promote feelings of enmity or hatred between different classes of His Majesty's subjects.
Explanation 2.‑Comments expressing disapprohition of the measures of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection shall not be deemed to be of the nature described in clause (d) of this subsection.
Explanation 4.‑Words pointing out, without malicious intention and with an honest view to their removal matters which or producing or have a tendency to produce feelings of enmity or hatred between different classes of His Majesty's subjects shall not be deemed to be words of the nature described in clause (h) of this subsection."
Mr. Hassanally took us through all the articles published on various dates in which the offending passages occur. It would be better in order to appreciate the contention of the learned counsel for the applicant to reproduce the passages given in the annexures to the said notices. The offending passages in the two notices are the same and are as under :‑
" Conspiracy to exploit Sind.‑If the Mill is really allowed to be run by an individual rather than ‑by the Government, we would be absolutely justified in asserting that the Governor of Sind is abusing the powers vested in him and instead of working for the betterment of Sind he is out to do it harm. Hence he is not a well‑wisher or sympathizer of Sind. He is the ill‑wisher of Sind. (Deted 13th March 1952).
Sind Secretariat Employees. An advice to the Governor of Sind.‑The Chief Secretary is nursing British ideas in his brain. He feels the officialdom has always to be given preference over the will and the sentiments of the people, but he is certainly mistaken in that.
The Chief Secretary bears a grudge and malice against Sindhis, otherwise if he had no bias in his mind, he would never have ventured to take action against these whose salt he eats. (Dated 11th April 1952).
"Mr. Gazdar's speech and the refugee press.‑With regard to Sind Governor's campaign of replacing Sindhis by non -Sindhis and Punjabis, we strongly demand of the Central Government that they should direct the Sind Governor to refrain from his policy of 'Sindhi massacre'. (Dated 23rd April 1952).
Resident Magistrates.‑But the Punjabi Governor and Punjabi Ahmadi Chief Secretary of Sind will pay no heed to this honest suggestion. They will act according to their own sweet will. (Dated 30th April 1952).
Another good turn to Sind in Governor's regime.‑Since Mr. Din Muhammad , the Governor of Sind has taken over reins of governance of this helpless Province, we have been apprising the Sindhi Muslims of the unpleasant consequences of his extremely deplorable efforts to harm and injure Sindhi Muslims.
No Punjabi Officer in Sind has ever been true to the salt of this Province. This Governor too, is betraying his natural instincts.
The Governor of Sind is taking an unfair advantage of the absence of a representative Government in the Province, But we cannot over‑look the oppressions and tyrannies perpetrated on the Muslims of Sind. (Dated i5th May 1952).
Appointment of Chief Conservator of Forests.‑We fail to understand as to what offence has been committed by the Muslims of Sind against those of the Punjab that they, inspite of having eaten the salt of Sind, are committing treachery with the Sindhi Muslims. But they should remember that sooner or later they will be paid in the same coin for their treachery and such a wrath and curse from almighty God will descend on them that they will themselves tell the world, " Indeed God is with those who resort to patience." (Dated 23rd May 1952).
Confession of failure.‑Sind's Punjabi Governor is unfit for his present position. The Sind Governor is entirely responsible for failure of wheat procurement campaign in Sind and hence for the entire scarcity of foodgrains.
A Punjabi can at no cost prove to be a sincere friend of anyone‑do any favours to him. He is always like a serpent and will surely sting like a snake one day or the other. (Dated 28th May 1952).
Security Act.‑The people of Sind are not co‑operating with the Governor of Sind only because they are dissatisfied with him and have no confidence in him. (Dated 30th May 1952).
The Sickman of Sind and his self‑appointed Physician I.‑Today whether it be lands, buildings, shops or service, the Sindhi is being handsomely rewarded for his over enthusiasm for the high ideals of Islam. He is being steadily eliminated from every field and driven to a position which is not very much different from that of the non‑Aryans when the Aryan hordes descended on the Indian plains. Indeed the Sindhi Muslim is himself a refugee in his own land. (Dated 4th June 1952).
The Sickman of Sind and his self‑appointed Physician 11.‑‑Indeed in view of the fact that he is a true prototype of a Punjabi, it is not possible for him to understand and appreciate the frank, trustful and "Islamic" attitude of the Sindhi. Muslims are not to be swayed by pro‑Punjabi considerations. Wherever and whenever there is any opportunity for such consideration to come into play.
But for his fertile brain and artistic touch, the PRODA scene might easily have ended with the dismissal of the first petition against Mr. Khuhro. But every move that was made to bring Sind Leaders to some amicable and lasting compromise was superbly checkmated.
" Is it right to allow such a self‑appointed physician to tinker with a patient whose condition is already serious enough Must Sind pay the price in blood for the follies and foibles of its leaders In view of his obvious disquali fication, is it right to let the present Governor continue to sit astride Sind's neck as a reward for his masterly skill at PRODA game ;Dated 8th June 1952).
Sickman of Sind and self‑appointed Physician.‑In every matter where the right of Sind and Sindhis are concerned, Mr. Faruqui has always shown ' utter disregard for justice and even for rules.
With the advent of section ‑ 92‑A the fate of Sind and Sindhis today is more completely at the mercy of our worthy Chief Secretary, Mr. Faruqui, and our worthy Governor, both of whom have the privileges of hailing from the blessed Province of Punjab and a flair for doing something which they would not dare to do in their own Province. Sind and its people can never accept a fair deal at the hands of the present Governor, and more so, when a man of Mr. Faruqui s capabilities and callousness is his Chief Secretary. (Dated 6th June 1952).
Mr. Hassanally, the learned counsel for the applicant, con tended in the first place that the articles containing the criticism about the Governor of Sind was only comment expressing disapprobation of the laws of the Government in order to obtain their alteration. These comments he urged did not excite or attempt to excite hatred or contempt against the Government. The learned counsel for the applicant did not urge that the criticism of the Governor did not amount to the criticism of the Government, and, therefore, the question of exciting hatred or contempt of the Government did not arise.
The learned counsel for the applicant contended in the second place that some of the articles contained nothing more than words pointing out without malicious intention and with an honest view to their removal, matters which were producing or had a tendency to produce feelings of enmity or hatred between different classes of Her Majesty's subjects.
In order to appreciate whether a particular offending passage falls within the mischief of any of the provisions enumerated in section 4 (1) of the Press Act, one has to carefully peruse each article as a whole and not concentrate on isolated words or passages. It has been my endeavour to judge if the words used by the writer himself do contravene the provisions mentioned in section 4 (1) of the Press Act. Viewed in this light, I have no hesitation in holding that some of the offending passages do bring into hatred or contempt the Government of Sind established by law and promote feelings of hatred between different classes of Her Majesty's subjects.
The first question for determination therefore, is, whether any words as alleged in the said notices directly or indirectly have brought the Sind Government into hatred or contempt within the meaning of section 4 (1) (d) of the Press Act. This question raises two important points for consideration. The first point for consideration would be whether the Governor of Sind can be said to be the Government of Sind. If the answer to this is in the affirmative, a further question arises, whether the remarks are addressed to the Governor as such or to the Governor in his personal capacity.
I am clearly of the opinion that the Governor of Sind is the Government of Sind within the meaning of section 4 (1) (d) of the Press (Emergency Powers) Act The Press (Emergency Powers) Act, 1931, does not define "Government". The Press (Emergency Powers) Act of 1931, is a Central Act, and one hag to refer to the General Clauses Act of 1897, for the purposes of' definition of words. The relevant section of the General Clauses Act is section 3 (21) and 3 (43‑a) which read as under :‑
" 3 (21) " Government " or the Government " shall include both the Central Government and any Provincial Government. '
3 (43‑a) " Provincial Government "---
(a) as respects anything done or to be done after the establishment of the Federation of Pakistan, shall mean in a Governor's Province, the Governor, and in a Chief Com‑ A missioner's Province, the Central Government;
(b) as respects anything done before the establishment of the Federation of Pakistan, but after the commencement of Part III of the Government of India Act, 1935, (i.e., the 1st April 1937), shall mean in a Governor's Province, the Governor acting or not acting in his discretion, and exercis ing or not exercising his individual judgment, according to the provision in that behalf made by and under the said Act, and in a Chief Commissioner's Province, the Central Government; and
(c) as respects anything done before the commencement of Part III of the said Act, shall mean the authority or person authorised at the relevant date to administer executive) government in the Province in question." The word "Government", therefore, according to the above definition as used in section 4 (1) (d), means also the Provincial Government and the later means the Governor for anything done or to be done after the establishment of Pakistan.
A study of sections 46 and 49 of the Government of India Act, as adapted by Pakistan would also lead one to the same conclusion that a Governor of a Province is the Government of the Province. Section 5 (1) (a) of the' Government of India Act reads as under :‑
" 5 (1) (a). As from the fifteenth day of August 1947, there shall be united in a Federation by the name of Pakistan the Provinces hereinafter called Governor's Provinces."
Section 46 reads as under :‑
" 46 (1) The following shall be Governor's Provinces; that is to say, East Bengal, West Punjab, the North‑West Frontier Province, Sind, and such other Governor's Provinces as may be created under this Act.
(3) In this Act the expression "Province" means, unless the context otherwise requires, a Governor's Province, and Provincial shall be construed accordingly."
Section 49 reads as under :‑
"49 (1) The executive authority of a Province shall be exercised by the Governor, either directly or through officers subordinate to him, but nothing in this section shall prevent the Federal or the Provincial Legislature from conferring functions upon subordinate authorities, or be deemed to transfer to the Governor any functions conferred by any existing law on any Court, judge, or officer or any local or other authority.
(2) Subject to the provisions of this Act, the executive authority of each Province extends to the matters with respect to which the Legislature of the Province has power to make laws."
It is clear from a reading of the above sections that the executive authority is exercised by the Governor in the Governor's Province. This executive authority cannot be distinguished from the Government establish d by law. I am fortified in my opinion by a decision of the Calcutta High Court reported In re Anandarbazar Patrika (60 1 L R Cal. 408). The relevant portion on which I rely is :‑
"Mr. B. C. Chatterjee, who appeared for the second petitioner, raised a further question as to whether the expression "Government" must necessarily mean "Govern ment established by law in British India". The point of his argument was that one may criticise the executive government harshly, adversely and even unreasonably, but that is not the same thing as bringing into hatred or contempt the Government established by law or exciting disaffection towards it. In my opinion, so far as this country is concerned, no distinction in substance can be drawn between "Government established by law in British India" and the 'Executive government."
Some authorities have gone further and have held that "it is possible to excite such feelings of hatred or contempt towards Government by an unfair criticism of any of its services". This view was taken by the Bombay High Court in the case of Bal Ganadhar Tilak v. Emperor (A I R (1916) Bom. 9 at p. 47). Rankin, C. J., remarked in 56 Cal. 1085 at page 1089 :‑
" It is quite possible, by the abuse of Government officials as officials, to make an endeavour to bring into hatred or contempt the Government established by law in British India."
The next question for consideration is whether the remarks were directed against the Governor in his private capacity of Mr. Din Muhammad. If it could be held that the remarks were directed against Mr. Din Muhammad in his private capacity as such the provision of section 4 (1) (d) could not apply. The real test to my mind is, if the remarks and criticisms are directed towards the duties and functions of the Governor as such it cannot by any stretch of imagination be held that the remarks were directed against Mr. Din. Muhammad and not against His Excellency Mr. Din Muhammad. A perusal of the articles complained of leave no doubt that the remarks and criticisms were directed against His Excellency Din Muhammad in his official capacity relating to the duties and functions of the Governor. I have no hesitation in holding that the only capacity in which Mr. Din Muhammad was criticised and commented upon was in his official capacity as Governor.
The point for determination now is if any of the offending passages do fall within the mischief of section 4 (1) (d) of the Press (Emergency Powers) Act.
No useful purpose can be served by referring to all the offending passages that contravene section 4 (1) (d) of the Press Act. The action of the Chief Commissioner, Karachi could be justified in law even if there is only one such passage which contravenes section 4 (1) (d) or 4 (1) (h), of the Press Act. I propose to take two passages from the annexures which contravene section 4 (1) (d) of the Press Act. The applicant got the various articles translated by the official translator of this Court. I accept the official translation of the offending passages given in the two annexures.
One of the offending passages occurs in the article published on 13th March 1,52. The heading of this article is "Plot for further dooming Sind". The article starts with a grievance against the economic condition of Sind and then proceeds to mention the scheme of the Cabinet to establish a Textile Mill which was to be managed by the Government itself. The article goes on to mention that the said scheme is not receiving favourable consideration at the hands of the Governor and it is likely to be dropped. The author wishes to convey through this article that this profitable scheme for the public of Sind could not have been abandoned but for the Governor's regime under section 92‑A of the Govern ment of India Act. The offending passage in this article runs as follows :‑
" If it is done so, then we would not hesitate to pronounce that, the Governor of Sind, by taking undue advantage of his position and power, is inflicting loss to the Sind Province and he is not a friend and well‑wisher of Sind, but is acting prejudicial to the interests of Province."
The words in the above passage speak for themselves. The Governor, it is suggested in this passage, to be a person capable of taking advantage of his high position to the detriment of the Province of which he is the executive head. The general tendency of this passage is not to criticise the policy of the Governor but to assert that the Governor was capable of deliberately abusing his position.
Another passage which comes within the provisions of section 4 (1) (d) of the Press Act occurs in the article with the heading " Mr. Gazdar's speech and Refugee Press". This article speaks about the regime of section 92‑A of the Govern ment of India Act. It emphasises the wrong done to Sindhis under the Governor's regime and finally concludes with the offending passage which reads as under :‑
" As regards the campaign set afoot by the Sind Governor to remove and dismiss the Sindhi Officers of our Province without reason and to appoint in their place Punjabis and Non‑Sindhi officers we importunately seek indulgence of Pakistan Government to instruct the Governor of Sind to desist from this anti‑Sindhi policy otherwise if he continues to practise this policy as usual, all the Sindhi Officers will be wiped out and Punjabi and non‑Sindhi Officers will be thrust upon Sind long before a representative Government comes into existence."
There can hardly be a more glaring example of bringing the Government of Sind into hatred than by saying that the Governor has set afoot a campaign of removing and dismissing Sindhi officers without rhyme or reason and replacing them by Punjabis and non‑Sindhi officers. The words used in this passage are such as may be considered to impute unworthy or dishonest motive to the Governor of Sind and, therefore, calculated to bring into hatred or contempt the Government.
The next question to consider is whether any of the passages mentioned in the annexures to the notices do contravene the provisions of clause (h) of section 4 of the Press Act. I would consider only two such passages. One of such passages occurs in the article with the heading "Appointment of Chief Conservator of Forests". The passage as translated by the official translator runs as under :‑
" We cannot understand what wrong after all have Sindhis done to Punjabis that they while living on the produce of this Sind are acting traitors to the Muslims of Sind. But let these disloyal Punjabis remember that today or tomorrow early or late, the bread of this soil will certainly curse them and such a bolt from the blue shall befall them that they would cry the lesson from door to door because Sindhis are patient and it is ordained in the Holy Quran that Indeed God helps those who are patient '."
The words are clear. There can be no doubt that the above passage does promote feeling of enmity or hatred between different classes of Her Majesty's subjects. The allegation that Punjabis are acting as traitors against Sindhis is certainly to promote feelings of enmity or hatred between two classes, Punjabis, and Sindhis.
Another such passage occurs in the article with the heading " The Sick Man of Sind and his self‑appointed Physician". This article deals with the condition of Sind and criticises the rule under section 92‑A of the Government of India Act. The offending passage reads as under :‑
" Indeed in view of the fact that he is a true prototype of a Punjabi it is not possible for him to understand and appreciate the frank, trustful and 'Islamic' attitude of the Sindhi Muslim or not to be swayed by Pro‑Punjabi con siderations wherever and whenever there is any opportunity ‑ for such considerations to come into play."
It compares the character of a Punjabi with that of a Sindhi. A Punjabi is described to be a person who is not frank, trustful and Islamic in his attitude as compared with a Sindhi. These words no doubt promote feelings of hatred between two classes, the Punjabis and the Sindhis.
Mr. Hassanally, the learned counsel for the applicant cited certain cases: (1) P L D (1949) Lah. 282 ; (2) P L D (1949) Lah. 212 ; (3) A I R (1949) E Ph. 289 and (4) A I R (1947) Nag. 1. Some of these cases deal with articles alleged to fall within the mischief of clauses (d) and (h) of section 4 of the Press (Emergency Powers) Act. Whether a certain article does offend Clauses (d) and (h) of section 4 of the Press Act, to my mind, is a question of fact to be determined after a perusal of the article itself in accordance with the established principles of interpretation of a provision of Law. These cases are no authority that the offending passages complained of by the Chief Commissioner do not contravene clauses (d) and (h) of section 4 of the Press Act, though they may be good authority for laying down the principle of interpretation of an article complained of. Mr. Justice Cornelius in the case reported in In the matter of Daily Ehsan (P L D 1949 Lah. 282 at page 299) for instance lays down :‑
" It is an axiomatic that for the purposes of appreciating whether or not a particular piece of writing, falls within the mischief of any of the prohibitions " enumerated in section 4 (1) of the Press Act, it is necessary that the article should be read as a whole in a fair, free and liberal spirit, not concentrating on isolated passages or words, but s endeavouring to grasp the theme and intention of the writer from the words he has employed, attempting to estimate at the same time the effect of those words, and the manner of their employment, upon the mind of the average reader."
Mr. Justice Shah remarked to the same effect in Bal Gangadhar v. Emperor (A I R (1916) Bom. 9 at page 47) :‑
" The speeches must be read as a whole in a fair, free and liberal spirit'. In dealing with them one should not pause upon an objectionable sentence here or a strong word there. They should be dealt with 'in a spirit of freedom' and 'not viewed with an eye of narrow criticism. The case should be viewed 'in a free' bold, manly, and generous spirit' towards the petitioner."
Whether the offending passages, keeping the above principle in view, do or do not contravene clauses (d) and (h) is a question of fact depending upon the words of each article I have kept this principle in view in coming to a conclusion that some of the passages do come within the mischief of section 4 of the Press Act.
These remarks are sufficient to dispose of the cases cited by the learned counsel for the applicant.
I, therefore, for reasons set forth above, dismiss the two applications with costs.
K. B. A. Applications dismissed.
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