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Case before Special Bench decided on 2nd January, 1958.

Construing offending article‑Reading must be fair and liberal --Words "hatred" and "contempt" explained.

In construing an offending article, the Court must read it as a whole in a fair, free and liberal manner and not in any narrow minded or sectarian way, nor is Court allowed to pick out isolated words or sentences from one or the other place of the article or publication. Then the Court is to judge what effect the article or publication as a whole would have upon the mind of an average reader.

Hatred is much stronger than mere opposition. ‑It means aversion carried out to the point at which there is a desire to injure or destroy the object of the emotion, and contempt means more than regarding the object as of a vile, despicable or worthless , character.

In the matter of the Daily Ehsan P L D 1949 Lah. 282 rel.

Construing offending article‑Principles to be followed.

It is not necessary that the words should be such as to actually incite public disorder or to create a reasonable anticipation or likelihood of public disorder, but, nevertheless, the words must be such as are calculated to disturb the tranquillity of the State and good ignorant persons to subvert the Government or to induce discontent and insurrection or stir up opposition to the Govern ment or at least to evidence disloyalty in action towards the Government.

Mischief under section 4 of the Press (Emergency Powers) Act is the same as sedition under section 124‑A, P. P. C. Sedition as such has been made a crime, because, in all civilised societies and orderly Governments, the integrity and the preservation of the State is a matter of vital concern. But at the same time it must be emphasised that it was not intended thereby merely to pander to the wounded vanity of an unusually touchy Government.

‑Order demanding security from a newspaper on certain grounds ‑Government introducing new grounds in their statement before Court to justify the order‑Introduction of new grounds, held, illegal.

Where the Provincial Government demanded security from a newspaper under section 7 (3) of the Press (Emergency Powers) Act on certain grounds and filed in Court an affidavit‑in‑opposition introducing new grounds with a view to provide further justification for its order imposing the security.

Held, that the Government could not introduce new grounds to justify the order made by it, if the same had not already been mentioned in the order itself.

Government by majority party‑A Government established bylaw ‑Section 4 applicable‑Change in form of Government does not make statute inapplicable.

Though the Government be a Government by members of the majority party, the Government as such has its existence quite apart from the party. A criticism of the Government in power in any Province is 4 criticism of the Government by law established in that Province, though incidentally it may be a criticism of the policy of the majority party. The fact that the form of Government at the centre and in the Provinces has changed does not make the Press (Emergency Powers) Act, 1931 inapplicable.

The matter of "Saptaha", a Bengali bi‑weekly Newspaper and in the matter of Benoykumar Chattopadhyaya A I R 1950 Cal. 444 rel.

Truth or falsity of offending article‑Not material‑Prevailing circumstances to be considered.

So far as the truth or falsity of a news is concerned it is quite immaterial whether what was stated is true or untrue. The Court is concerned merely with the tendency of the words used and thus even if a true item of news can have the tendency mentioned in clause (d) of subsection (1) of section 4 of the (Press Emergency Powers) Act, it would be as much actionable as an incorrect item of news.

In order to gauge the effect of the words used upon a reason able reader the Court must take into account the conditions pre vailing in the country at the time which are likely to move or affect such a reader. [

King‑Emperor v. Sadashiv Narayan Bhalerao 74 I A 89 and Niharendu Dutt Majumdar v. Emperor A I R 1942 F C 22 ref. . .

S. R. Pal with J. H. Khan for Petitioners.

B. A. Siddiky, A. G. with K. Hossain for Respondent.

This is an application under section 23 of the Press (Emergency Powers) Act, 1931. The petitioner before us is the Printer and Publisher of a Bengali daily newspaper called the "Sangbad". The petitioner was, on the 13th of August 1957, directed by Order No. 5058‑Poll. of the Provincial Government made under subsection (3) of section 7 of the said Act to deposit with the District Magistrate of Dacca security to the amount of Rs. 1,000 on or before the 13th day of September 1957.

The ground given in the said order for the imposition of the said security was that the said newspaper had, in its issue of the 15th of June 1957, published the news item, which' was annexed to the said order, and thereby, it was said, had published words of the nature described in clause (d) of subsection (1) of section 4 of the said Act, that is to say, used words conveying reports which are likely to bring into hatred or contempt or to excite disaffection towards the government established by law in Pakistan.

This news item, according to the petitioner, was published on receipt of a telegram from one Waizuddin of Dakshin Parbatipur Goinghat, Sylhet, dated the 14th of June 1957, to the following effect

"Five persons of Refugee Colony of Parbatipur and Tarukel Police Station Gowainghat Sylhet died of starvation recently Stop Others condition precarious Stop Immediate Relief badly needed failing which more death may follow EOM".

On the publication of this news item, the Provincial Government on the 26th of June 1957, issued a Press Note to the following effect :‑

"(Press Note)

Attention of Government has been drawn to a box news item appearing in "Sangbad", dated 15th June, stating on the infor mation of one Waizuddin of South Parbatipur in Sylhet district that 5 persons of Parbatipur and Tarukei Refugee Colony under Goainghat police station died of starvation.

The matter has been inquired into and found to be not true. What happened was that 3 persons and not 5 have died of epidemic malarial fever which is now prevailing in that area, as it sometimes does at this time of the year. They had been suffering from this fever for periods varying from, a fortnight to a month.

It may be remarked incidently that coarse rice in Goainghat is currently selling at Rs. 26 per md., and harvesting of early Aus crop is now going on in the district".

This Press Note was also promptly published by the said Sangbad newspaper in its issue of the said 29th of June 1957. Notwith standing the publication of the official Press Note issued by the Provincial Government, the Provincial Government thought It advisable to invoke its powers under clause (3) of section 7 of the said Press (Emergency Powers) Act, 1931, and to call upon the petitioner to furnish the security above mentioned. Hence, the present application.

The Provincial Government has, in addition to the above order, which has been printed in the Paper Book together with its annexure, also filed an affidavit‑in‑opposition affirmed by one Syed Agha Ali Hyder, Assistant Secretary in the Home (Political) Department of the said Government. The facts are not in serious dispute, but it appears that the Government is of the view that the publication of the aforesaid news item which, according to it, was absolutely false and baseless, was, having regard to the acute shortage of food prevailing in the country at that time and having regard to the fact that the price of rice and paddy was shooting up in the market, a design to excite contempt and hatred towards the Provincial Government then in power in the Province, as well as to lower it in the estimation of the public and to create a sense of insecurity in the people. These allegations have, of course, been denied by an affidavit‑in‑reply filed on behalf of the petitioner before us. The petitioner asserts that he made the publication bona fide in the belief that he was disseminating a correct item of news of considerable public importance. He repudiates the suggestion that he did so with any of the motives alleged by the Provincial Government in its affidavit‑in‑opposition and claims that the news item complained of by the Provincial Government is neither capable of having any one or other of the tendencies mentioned in clause (d) of subsection (1) of section 4 of the said Act, or the tendencies mentioned in the order of the Provincial Government of the 13th of August 1957.

We may, however, incidentally mention here that if the Provin cial Government filed this affidavit‑in‑opposition with a view to provide further justification for its order imposing the security concerned, then it must be made clear that in these proceedings, it is now well‑settled, the Government cannot introduce new grounds to justify the order made by it if the same have not already been mentioned in the order itself. In these circumstances, we do not attach much importance to the affidavit‑in‑opposition filed on behalf of the Government save to indicate that in the Annexure "A" attached to the said affidavit‑in‑opposition itself, which purports to be a report from the Deputy Commissioner, Sylhet, it does appear that the Deputy Commissioner himself had requested the Relief Commissioner on a number of occasions to place funds either for distribution as cash doles or for conversion of M. R. rice into G. R. to meet emergent cases and to save casual ties from starvation and by that report does further seek to impress that unless an allocation of 4000 mds. of G. R. rice from Sadar and Habigan j to Moulvibazar sub‑division is made monthly till the next Aman crop is harvested, "casualties from starvation" cannot be ruled out.

In the Government Press Note itself issued in contradiction of the news item, it was stated that three and not five deaths had in fact taken place at this Refugee Camp due to epidemic malarial fever; but in another annexure to the affidavit‑in‑opposition, which purports to be a statement obtained from the said Waizuddin, who is said to have sent the telegram to the newspaper, it is stated that three refugees had died of fever and that "adequate arrangements for their treatment and diet could not be made due to wants". The said Waizuddin, however, stated that he had asked another person at Sylhet to have the news of the death of these three refugees due to fever and want of treatment published in some newspaper but he did not know what actually the said person had wired.

In these circumstances, the learned Advocate appearing on behalf of the petitioner has contended that the Government's action in imposing the said security was absolutely arbitrary and high‑handed and was a deliberate attempt to gag the Press. According to him: such a bald statement of facts without any comments of any kind whatsoever, even if untrue, cannot possibly be construed as having the tendency to bring into hatred or contempt any government established by law in the Provinces or the Capitals or to excite disaffection towards the Government in any way whatsoever. It is furthermore stressed that the very fact that the newspaper concerned immediately published the Press Note issued by the Government shows that its intention in the publication of the news item was none other than a bona fide and honest one and was concerned purely with the dissemination of news of public interest.

It is further urged on behalf of the petitioner that whatever might have been the intent of the Legislature in enacting these provisions in the Press (Emergency Powers) Act, 1931, we must now construe the same in the light of the changed circumstances introduced by the passing of the Constitution of Pakistan whereby a system of Government based upon principles of democracy and social justice for all and sundry, with complete equality, had been set up.

If by this last argument the learned Advocate intends to suggest that in the context of the democratic principles established by the Constitution, whereby Government must necessarily be by the majority party in the country, no criticism of Govern ment can or should be held to fall within the mischief of the provisions of the aforesaid Act,' then we are afraid we are unable to accept the said argument. It" is true that in a democracy the Government for the time being in office is virtually the ‑govern ment of the party returned with a majority in the election; yet, nevertheless, it‑ is as much a government established by law in the country as the British Government was at the time when the Act was brought upon the Statute Book. This view is also supported by the decision of a Special Bench of the Calcutta High Court in the Matter of "Saptaha", n Bengali bi‑weekly Newspaper and in the matter of Benoykumar Chattopadhyaya (AIR 1950 Cal. 444), where Chief Justice Harries observed as follows:‑

"Since Independence, conditions have changed and the form of the government ' at the Centre and in all the Provinces is now the democratic form of government. The party commanding the majority in the Legislature is the party in power and forms the Ministry. A Government is a Government of the majority party, but that does not make it any the a government by law established in British India. Whilst that party, maintains a majority, it remains in power and whilst it is in, power it is the lawful government of the Centre or of the Provinces.

Though the Government is a government by members of the majority party, the Government as such has its existence quite apart from the party. In my view, a criticism of the Government in power in any Province is a criticism of the government by law established in that Province, though incidentally it may be a criticism of the policy of the majority party. It appears to me that the fact that the form of government at the Centre and in the Provinces has changed does not make this statute inapplicable."

Hence as long as the statute is there, it will be our function to construe its provisions and to give effect to them and if the article or publication complained of does offend against the provisions of the said statute, we would have to declare that it does so offend.

It is necessary, therefore, for us now to consider whether the news item complained of in the present case does or does not fall within the mischief of clause (d) of subsection (1) of section 4 of the said Act and whether it has either or any of the tendencies mentioned in the Government s order of the 13th of August 1957. It is patent that, the news item in question, as pointed out by the learned Advocate for the petitioner, contains no words which can be reasonably interpreted to amount to any kind of criticism whatsoever of either the government established by law and for the time being in office in the country or any of its officials. We are not to be understood, however, from this to mean that the publication of a news item can in no event come within the mischief of these provisions. Whatever the form of the publication whether it be a news item, a pamphlet or a leading article or even a placard or a handbill, if it contains words which, can, seasonably be said to have the tendency of bringing the Government into hatred or contempt and to excite disaffection towards the Government then the said publication will fall within the mischief of the said provisions of, clause (d) of subsection (1) of section 4.

It is necessary, therefore, for us next to consider as to what does...or does no amount to bringing the Government into hatred or contempt or to excite disaffection towards the Government. Fortunately for us, these provisions have so often come up for consideration before the Courts not only in the Indian sub continent but also in Pakistan that we can well say that the principles upon which publications are to be evaluated have now been more than well‑settled, It is, we think, almost axiomatic that in construing the offending article we must read it as a whole in a fair, free and liberal manner and not in any narrow‑minded or sectarian way,, nor are we to pick out isolated words or sentences from one or the other place of the said article or D publication. Then so reading it, judge what effect the article or publication as'' whole would have upon the mind of an average reader. Again, as to what amounts to hatred or contempt, we can do no better; than to, quote the words of Cornelius; J., from his judgment in the decision of a Special Bench of the Lahore High Court in the matter of the Daily Ehsan (PLD 1949 Lah 282):‑

"The article will come within the mischief if it tends to arouse feelings of enmity or hatred or contempt. Much of these feelings is in the nature of an emotion. If the article is expressed in emotional terms, there will prima facie, be a tendency in it to arouse emotions in the minds of its readers, but, on the other hand, if the appeal be to the head, rather than to the heart, if reason and not the emotions be exercised or invoked, the presumption will be to the contrary, namely, that no emotions are likely to be aroused. If, at the same time, the argument be of a careful nature and although persuasively yet inoffensively expressed, it will be difficult to regard it as being either intended or calculated to give rise to such violent feelings as are meant by the expressions enmity', hatred' and contempt'. Any form of mere dislike is not enmity; the feeling must be one of hostility, antagonism and ill‑will. Similarly, hatred is much stronger than mere opposition: it means aversion carried to 'the: point at which there is a desire to injure or destroy the object ' of the emotion, and contempt means "more than regarding the object as of a vile, despicable or worthless character. To arouse feelings of this kind by a writing, it is necessary to write provocatively, employing the arts of emphasis, exaggeration, and misrepresentation so as to exclude all possibility of tile action criticised being excused on any such innocent ground as mistake or misconception "

In the light of the observations above quoted, can it be said that the words used in the article, complained of in the present case, are capable of conveying such hatred or contempt or aversion or that they are capable of arousing an feeling of hostility, antagonism or ill-will against, as alleged, the Provincial Government. In our opinion, to read any such meaning into the said words, would be to do violence to the English language. The said words are in our opinion, incapable of being construed by any stretch of imagination of having the tendency either to bring or attempt to bring into hatred or contempt any one.

Next, so far as the charge of exciting disaffection towards the Government is concerned, it is true that since the decision of their Lordships of the Judicial Committee in the case of King Emperor v. Sadashiv Narayan Bhalerao (74 I A 89), it: is not necessary, as was held by Gwyer, Chief Justice of the Federal Court of India, in the case of Niharendu Dutt Majumdar v. Emperor (AIR 1949 Lah. 282), that the words should be such as to actually incite public disorder or to create a reasonable anticipation or likelihood of public disorder, but nevertheless, the words must be such as are calculated to disturb the tranquillity of the State and goad ignorant persons to subvert the Government or to induce discontent and insurrection or stir up opposition to the Government or at least to evidence disloyalty in action towards the Government, We. are equally of the opinion that the words complained of in the resent case acre also incapable of producing any one of these, effects .upon the mind of any reasonable reader.

The provisions of clause (d) of subsection (1) of section 4, as has often been held, are substantially the same as' the provisions of section 124‑A of the' Penal Code which defines the offence of sedition. Sedition as such has been made a crime, because, in all civilised societies and orderly Governments, the integrity and the preservation of the State is a matter of vital concern. But at the same time we must emphasise that it was not intended thereby merely to pander to the wounded vanity of an unusually touchy Government. We cannot but observe that, in spite of our best efforts, we have not been able to discover any reported decision of any High Court either in India or Pakistan which would lend any support to the action of the Provincial Government in the present case in imposing the security for such a harmless and inoffensive publication of a news item.

The learned Advocate‑General appearing on behalf of the Provincial Government has laid great stress on the fact that in so far as the item of news was an incorrect item of news and it was published at' a time when, we are asked to believe; the Government was in considerable difficulty, by an organ of a political party opposed to the party in power, it must necessarily have been published with the intent to bring the party stn power, in other words, the Government in power, into hatred or contempt. As we have already pointed out, neither the Press Note published on the 26th of June 1957, nor' the order of the Provincial Government made on the 13th of August 1957, gives 'any such indication of any such grave situation in the food position‑of the country. The Press Note would actually have us believe that rice was selling within the said jurisdiction of Goainghat police‑station' at Sythet at Rs. 26 per maund and that the' harvesting of the early Aus crop was going on in the district of Sylhet. The Provincial Government cannot, in our opinion, :blow hot and cold in the same breath. If the position was as it was made out to be in the Press Note pf tire 26th of June 1957, then we have no materials before us to show that the position had in any way worsened since then, as it now has been sought to be made out in the affidavit‑in‑opposition filed by the said Government. Again, so far as the truth or falsity of the news item is concerned, we must observe, that it is quite immaterial whether what was stated is true or untrue. We are concerned merely with the tendency r of the words used and thus even if a true item of news can have the tendency mentioned in clause (d) of subsection (1) of section 4 of the said Act, it would be as much actionable as an incorrect item of news.

We might also mention here that considerable argument was advanced before us on behalf of the Provincial Government on the basis of certain observations of Chief Justice Harries. In the matter of Saptaha' and in the matter of Benoy Kumar :Chatto padhyaya, and we were asked to read the article in the context of the conditions prevailing in the country at the date of the publication of the said article. It is no doubt true that in order to gauge the effect of the words used upon reasonable reader we must take into account the conditions prevailing in the county) at the time which are likely to move or affect such a reader. But as we have already indicated, we have no materials before apart from the statements in the affidavit‑in‑opposition affirmed on the 4th day of December 1957, and now tiled before us from which we can hold that the food position in the country was then in a serious condition. We have already given our reasons for being unable to accept the said statement in the affidavit‑in‑opposition.

Lastly, on behalf of the. petitioner, it was argued that the penal and restrictive provisions of the Press (Emergency Powers) Act had become void since the adoption of the Constitution of Pakistan by reason of the fact that they materially affected the fundamental right guaranteed by Article 8 of the said Constitution. Considerable argument was advanced before us in support of this contention also. But having regard to the view that we have already formed ,as to the tendency of the offending words, we do not consider it necessary to enter into this question, particularly, since we are given to understand that the Supreme Court has in the case, of the Mirror (P L D 1958 S C (Pak). 35) already dealt 'With the question of the constitutionality of somewhat similar restrictions in section 12 of the Security of Pakistan Act 1950. .

In the result, therefore, we have no hesitation in coming to the conclusion that the action of the Provincial Government in imposing the security was wholly unwarranted and unjustified, as the news item complained of does not come within the mischief of any one of the provisions of subsection (1) of section a of the Press (Emergency Powers) Act, 1931.

We accordingly set aside the said order of the Provincial Government. We also direct that the Provincial Government do pay the costs of the petitioner in the present case certified for two counsels. The delay in the filing of the Paper‑Book is also condoned and the Paper‑Book is accepted.

Z. A. S.

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