MUSHTAQ AHMAD GURMANI versus Z. A. SULERI AND ANOTHER

A case was established in the Additional District Magistrate's Court under Section 500, PPC, based on defamatory material published in a newspaper, but the High Court withdrew the case and the provisions of Section 526 (1) (iii). Prosecuted by himself. , The criminal PC claimed that the publishing of abusive material in the case where the case was set up in the district was not proven by the complainant and therefore the High Court had no jurisdiction to hear the case.

P. L. D 1958 (W. P.) Lahore, 747

Before Shabir Ahmad, J

MUSHTAQ AHMAD GURMANI‑Complainant

versus

Z. A. SULERI and another‑Accused

Criminal Original No. 58 of 1957, decided on 17th May 1958, under sections 500 and 501 of the Pakistan Penal Code.

(a) Criminal Procedure Code (G of 1898;, S. 526 (I) (iii)‑Case transferred by High Court to itself‑‑High Court tries under its extraordinary original criminal jurisdiction.

(b) Witness‑Journalist‑Has no special rights with regard to secrecy of source of his information.

The law does not give people connected with journalism any special rights with regard to secrecy on the question of the source of their information, they could not refuse to give information on relevant points on the ground that they were thereby infringing journalistic etiquette. The idea entertained by some people con nected with journalism that they can keep back information from a Court about a matter which can be validly inquired into by that Court is entirely erroneous. If a person connected with journalism appears as a witness in Court, he can refuse to answer only those questions the asking of which the law does not permit and no others. It is true that some people would not give information to journalists if they knew that the source of information couta become public property, but that consideration cannot allow the circumvention of the law of evidence contained in the Evidence Act, 1872. This is the legal aspect of the matter and even from the moral aspect there is no reason why a person who has given information to the world at large by conveying it to a person connected with a newspaper should expect that no one should know that' was the source of the information which; received publicity through the medium of the press.

(d) Jurisdiction‑Offence of defamation‑Place of publication of offending material‑Immaterial when case was withdrawn from Magistrate's Court and tried by High Court under S. 526 (1) (iii), Criminal Procedure Code (V of 1898)‑Criminal Procedure 'Code' (V of 1898), S. 177.

A case under section 500, P. P. C. based on defamatory mate rial published in a newspaper was instituted in the Additional. District Magistrate's Court, but the High Court withdrew the case and tried it itself under the' provisions of section 526 (1) (iii), Criminal P. C. It was contended that the publication of offending material in the District where the case was instituted had not been proved by the complainant and so the High Court had no jurisdic tion to try the case.

Held, that when the case came to the High Court, the question whether or not the Additional District Magistrate had jurisdiction to hear the case became entirely immaterial.

The order transferring the case to the 'High Court' for trial by itself was sufficient to give a Judge of the High Court jurisdic tion to hear the case even if it be assumed that the newspaper in question had not been circulated in the District.

(e) Criminal Procedure Code (V of 1898), Ss. 270 & 333'‑‑Do not suggest by inference or otherwise that all prosecutions before High Court must be conducted by the Advocate‑General.

Held, that it cannot be, inferred from either S. 270 or S. 333 Cr. P. C. that all prosecutions before the High Court must "be conducted by the Advocate General.

Ghulam Sarwar v. Niaz Ali Wand another P I, 011956 Lah. 848 considered.

(f) Criminal Procedure Code (V of 1898), S: 526 (2)‑Case transferred from Magistrate's Court to itself by ,High Court‑Trial in High Court not necessarily to be by jury Constitution of Pakis tan, Art. 5.

'Subsection (2) of section' 526 of the Code of Criminal Proce dure means that it is open to the High Court under section 267 of the Code of Criminal Procedure to direct that the trial of the case which the High Court has transferred to itself may be by a jury though the trial would not have been by jury if the case had remained in the Court from which it was transferred to the High Court.

The trial could beheld by a jury only if it was directed by th9 High Court that it should be so held.

Article 5 of the Constitution goes not have any application to such a matter. "The Article does not mean that there should be precisely the same law for the trial of all cases tried by a Court.

Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan and another P L D 1957 S C (Pak.) 9 ref.

(g) Penal Code (XLV of 1860), S. 499‑Intention, knowledge or reason to believe that imputation will harm‑May be presumed from the imputation itself.

(h) Evidence Act (I of 1872), S. 45‑Whether one document , is a photograph of another‑Question not one of science, art etc. Court may decide question without assistance of expert.

It is not on all points relating to documents that expert evi dence is necessary or desirable. The question whether or not one document is a photograph of the other is not one of science or art or handwriting or finger prints and, therefore, if the Court tries to decide that question without the aid of an expert it does not con travene any provision of law or the rule laid down in some decisions that a Court should not take upon itself the functions of a handwriting expert. Whether or not a, document is a photograph of another is a matter which does not require special training or, skill to find out and section 45 of the evidence Act is not attracted.

(i) Handwriting‑Newspaper prints of‑Unsatisfactory basis fat" conclusion as to authorship of handwriting‑Evidence Act (I of 1872), S.45.

(j) Evidence Act (I of 1872), S. 45‑Opinion of handwriting expert to be received with caution Expert likely unconsciously to be prejudiced in favour of party calling him.

The opinion of a handwriting expert should be received with great caution however impartial an expert may be, he is likely to be unconsciously prejudiced in favour of the side that calls him: From the ' mere fact that an expert has said that a document was written by a certain person one will not be justified: in arriving at the conclusion that, the scribe was the person mentioned by the expert because before giving a finding to that effect the Court has to consider the entire evidence on the point.

(k) Handwriting‑May undergo change with lapse of time.

(1) Government of India Act, 193) (as adapted), S. 6‑No State could validly accede. ,to Pakistan ,before. 14th August 1947.

(m) Penal Code (XLV of 1860), S. 499 First Exception‑To be read subject to S. 79, P. P. C.‑Imputation not true in fact but believed in good faith to be true, publication of which is for public good‑Imputation covered by Exception.

If an allegation is true its publication will not be defamation in spite of the fact that it is intended to harm the reputation of the person against whom the imputation is made provided the publication is for the public good. If, however, the imputation is not true but is believed in good faith to be true the publication is for public good, section 79 of the Pakistan Penal Code read with First Exception to section 499 of that Code will come to the rescue of the accused.

Lalmohan Singh v. The King A I R 1950 Cal. 339 distinguished.

(n) Penal Code (XLV of 1860), S. 52‑Definition of "good faith"‑Genetal Clauses Act (X of 1897), S. 3 (20)‑Definition of "good faith''‑Does not apply to provisions of Penal Code.

The definitions in the General Clauses Act are to apply to all Central Acts made after the commencement of the General Clauses Act only if there is nothing repugnant in the subject or context as is clearly mentioned in the beginning of section 3 which contains definitions. The Pakistan Penal Code became law in 1860, and, therefore, the definitions given in section 3 of the General Clauses Act (X of 1897) can have no application to it. It follows, there fore, that the accused can succeed on the basis of good faith only if they can establish that their "good faith" accords with the provisions contained in section 52 of the Pakistan Penal Code.

(o) Penal Code (XLV of 1860), S. 499 First Exception Bona fide publication of imputation in newspaper‑Editor's duty to make inquiries‑Amount of care and caution neither more nor less than that expected from other persons. [pp. 819, 820]R et seq S

(p) Press and Registration of Books Act (XXV of 1867), S. 7 ‑‑‑Editor‑in‑Chief‑Liable for defamatory material published in his newspaper.

(q) Penal Code (XLVof 1860), S. 501‑Printing of defamatory matter in newspaper‑Printer liable under S: 501 and not Editor.

(r) Criminal Procedure Code (V of 1898), S. 476‑High Court may order institution of complaint without preliminary inquiry.

A. K. Brohi, Sh. Khurshid Ahmad and Ch. Muhammad Sidiq for Complainant.

Sh. Abdul Haque for Z. A. Suled (accused).

A Muhammad Jafar and Mian Bashir Ahmad for Umar Qureshi (accused).

Dates of hearing arguments : 24th, 25th, 26th, 28th, 29th and 30th April 1958 and 1st May 1958.

JUDGMENT

SHABIR AHMAD, J

.‑This case which has many an unfortunate feature started op a complaint instituted by Mian Mushtaq Ahmad Gurmam who was not very long ago the Governor of the Province of West Pakistan. The complaint which was lodged in the Court of the Additional District Magistrate, Lahore, on the 7th of September 1957, prayed that three persons, namely, Z. A. Suleri and Umar Qureshi, ‑Editor‑in‑Chief and Editor respectively of the newspaper The Times of Karachi, and Khurshid Alam, printer and publisher of that newspaper, should be punished under sections 500 and 501 of the Pakistan Penal Code, ‑for defaming the complainant. The evidence against Khurshid Alam did not justify the framing of a charge against him and an order of discharge was, therefore, passed by me in his favour on the 10th of February 1958, on which date charges against Z. A. Suleri and Umar Qureshi were framed under sections 500 and 501 of the Pakistan Penal Code to which both pleaded not guilty:

2. The case is the outcome of what was published in The Times of Karachi dated the 3rd of September 1957 with regard to Mian Mushtaq Ahmad Gurmani, the complainant, and which was repeated in the Evening Edition of that paper on the 3rd of September 1957. On the first page of The Times of Karachi dated the 3rd of September 1957 as well as the Evening Edition of the newspaper for that date the following appeared as a banner headline :‑

"GURMANI OFFERED BAHAWALPUR TO ‑INDIA".

and underneath that was published facsimile of a letter alleged to have been written by Mian Mushtaq Ahmad Gurmani to Sardar Patel on the 23rd of August 1947. The letter read as follows :‑

"My dear Sardar Sahib,

The bearer will explain to you the details. I have however got the consent of H. E: the Amir about the accession. This will be done as I have already indicated in my previous letter.

I have removed all the difficulties and hope that my claim will receive due consideration.

With best regards.

Yours sincerely,

M. A, .GURMAM

23‑8‑47."

Under the facsimile which has been reproduced above line for line from the issue of the paper dated the 3rd of September 1957 was written: "Photostat copy of the letter written by Mr. M. A Gurmani to Sardar Patel offering Bahawalpur' ". By the side of the letter was published in very bold letters "DEAL WITH PATEL' FOR ACCESSION SPECIAL MESSENGER WAS SENT TO DELHI DOCUMENTARY EVIDENCE BARED

The Times of Karachi Service.

Karachi September 3.

Convincing documentary proof is now available to show that Mr. M. A. Gurmani completed a deal for the accession of Bahawalpur to India with the late Sardar Patel, who was Minister for States.

MR. GURMANI WHO.WAS THEN PRIME MINISTER OF BA11AWALPUR OFFERED THE STATE TO INDIA BARELY NINE DAYS Al‑7ER THE ESTABLISHMENT OF PAKISTAN AND BEGGED THE MUSLIM HATING SARDAR PATEL THAT HIS, CLAIM SHOULD RECEIVE DUL CONSIDERATION.

What the reward for handing over the largest State of Pakistan to India was to be is not specified in the photostat copy of the letter of Mr. Gurmani to Sardar Patel published here, but, the reward must be something very enormous.

The letter in his own hand was written by Mr. Gurmani on August 23, 1947, and delivered to Sardar Patel by a personal messenger who also explained to Sardar Patel how Mr. Gurmani was able to bring about the accession of the Muslim State to India.

The letter which is possibly the last in the series between Mr. Gurmani and Sardar Patel alleges that the former was able to get the consent of the Amir of Bahawalpur to the accession. The manner in which the accession was to be brought about was conveyed to Sardar Patel in an earlier letter.

The relations between Mr. Gurmani and Sardar Patel were so cordial in those violent days after Independence that he used to address the Indian leader as "Sardar Sahib"."

3. On the 4th of September 1957, Mian Mushtaq Ahmad Gurmani, through Mr. A. K. Brohi, Advocate, served a notice on Z. A. Suleri, Editor‑in‑Chief, Umar Qureshi, Resident Editor and Khurshid Alam, Printer and Publisher of The Times of Karachi, to the effect that the contents of the letter published in the paper in addition to being forged were false and malicious. It was added that if ,within twenty‑four hours of the receipt of the notice an apology is not published in the paper, Mian Mushtaq Ahmad Gurmani will take appropriate action in Civil and Criminal Courts against the persons responsible for defaming him by the publication of the letter. On the 7th of September 1957, the following appeared in The Times of Karachi :‑

"We publish below a copy of the notice that has been served upon us, the editor‑in‑chief, the resident editor, and the printer and publisher of the Times of Karachi. We are reproducing the entire notice so that the reading public may know the version of Mr. Gurmani about the episode.

We are particularly repudiating the suggestion that the publication of the facsimile of Mr. Gurmani's letter and our expression of opinion thereupon were malicious.

We had cordial relations with Mr. Gurmani and the publica tion of the facsimile of the letter was an unpleasant public duty performed by us in the interests of Pakistan and, in people.

NATIONAL SERVICE SHOULD THE ALLEGATIONS WHICH HAVE BEEN REPEATEDLY MADE BY MANY RESPONSIBLE PERSONS THAT AT THE TIME OF PARTITION UNDER THE PRIME MINISTERSHIP OF MR. GURMANI THERE WAS A SERIOUS RISK OF BAHAWALPUR ACCEDING TO INDIA THAT THERE WERE NEGOTIA TIONS WITH INDIAN AUTHORITIES AND AGENTS INCLUDING SARDAR PATEL ON THIS SUBJECT AND THAT MR. GURMANI WAS PERSONALLY CON CERNED IN THESE MATTERS BE TRUE, EVERY PAKISTANI WILL AGREE THAT THE TIMES OF KARACHI HAS PERFORMED A GREAT NATIONAL SERVICE IN DRAWING PUBLIC ATTENTION TO THESE MATTERS,

Regarding the facsimile of Mr. Gurmani's letter our position is that it was given to us by a high source which we regard of unimpeachable authenticity. It is therefore impossible for us at this stage to accept the position that the facsimile was a forgery. Were this letter to prove a forged one at a later stage we shall have no hesitation in tendering our profound apologies to Mr. Gurmani.

(Sd.)

(1) Z. A. Suleri, Editor‑in‑Chief.

(2) Umar Qureshi, Resident Editor.

(3) Khurshid Alain, Printer and Publisher "

and underneath was published the full text of the notice sent by Mr. Brohi on behalf of Mian Mushtaq Ahmad Gurmani, of which a gist has been given above.

4. As it will be useful to have a clear picture of certain other facts and circumstances, I will mention them here. Mian Mushtaq Ahmad Gurmani was serving as Director‑General, Resettlement and Employment, Government of India, and Joint Secretary to the Government of India in the Labour Department, when he was offered the Prime Ministership of Bahawalpur in the end of December 1946 and accepted the offer by a letter, a copy of which is on the record. He joined the Bahawalpur State Service as an Officer on Special Duty as an under‑study of the Prime Minister of Bahawalpur in March 1947 and took over as the Prime Minister of Bahawalpur on the 16th April 1947. On the 14th August 1947, Pakistan, came into being. On the 3rd of October 1947, His Highness the Amir of Bahawal pur executed the first instrument of accession of the State to Pakistan with regard to Defence, Foreign Affairs and Communica tions and on the 5th October 1947 that instrument which had been taken to Karachi by Mian Mushtaq Ahmad Gurmani was accepted by the Quaid‑i‑Azam Muhammad Ali Jinnah, the founder and the first Governor‑General of Pakistan. In January 1949, Mian Mushtaq Ahmad Gurmani joined the Central Government of Pakistan as Minister without Portfolio to deal with the Kashmir question. In October 1949, he was appointed Ambassador‑at‑Large and Member of the Pakistan Delegation to the Security Council in connection with the Pakistan case for Kashmir. In 1951, Mian Mushtaq Ahmad Gurmani was appointed Minister for Kashmir, States and Frontier Regions, which office he held till some date in 1954 on which he was appointed as the Governor of the then Province of the Punjab. He continued as the Governor of the Punjab till the 14th of October 1955, when on the Province of the West Pakistan coming into being, by reason of the Establishment of West Pakistan Act, 1955, Mian Mushtaq Ahmad Gurmani was appointed the first Governor of that Province. On the 27th of August 1957, Mian Mushtaq Ahmad Gurmani resigned 'from Governorship of the Province of West Pakistan, and made a public statement that on relinquishing charge of his office he would .tell the world through the press the reasons which had led to his' resignation. He relinquished charge on the 2nd of September 1957, and the next morning the world read instead of the promised statement of Mian Mushtaq Ahmad Gurmani, facsimile of a letter alleged to have been written by him about ten years earlier in which the State of Bahawalpur had been offered by him to Sardar Patel, the then Minister in charge of the States, Government of India, and as far as is known the statement which Mian Mushtaq Ahmad Gurmani had said he intended to make with regard to the reasons which led to his resignation from the Governorship of the Province of West Pakistan has not been made till today.

5. The complaint having been instituted before him on the 7th of September 1957, Mr. Hasanat Ahmad, Additional District Magistrate, Lahore, recorded a brief statement of the complainant on that day. The complaint was to the effect that the letter, the facsimile of which was published in The Times of Karachi dated the 3rd of September 1957, was a forgery, that no such letter was written by the complainant to Sardar Patel, that at no time was the accession of Bahawalpur to India con templated, and that the complainant believed that those responsible for the publication of the defamatory letter were instigated by some persons holding high offices who, because of their political differences with him, intended to injure his reputation. It was further said that though The Times of Karachi was published at Karachi it had circulation in Lahore also and that the paper containing the defamatory letter was circulated at Lahore and read by a large number of‑ persons there. The statement of the complainant recorded by Mr. Hasanat Ahmad was, as already indicated, a brief one, but therein it was clearly mentioned, inter alia that the Times of Karachi in which the facsimile of the alleged defamatory letter was published was read by a number of persons at Lahore. The Additional District Magistrate, Lahore, issued' summons to the accused persons to appear to answer the charge levelled against them. Before, however, any proceedings could be taken by the Additional District Magistrate in the presence of the accused persons, an application was made to this Court for the transfer of the case to itself to be heard on its original side. This application for transfer, Criminal Miscellaneous No. 1142/1957, was heard by Dr. S. A. Rahman, the then Chief Justice of this Court, who by his order dated the 18th of November 1957, directed that the case should be transferred to this Court for trial which was to be held at A Lahore. On a subsequent date, the then Chief Justice directed that the trial of the case should be entrusted to me and it is in these circumstances that the case has been heard by me in the exercise of the extraordinary original criminal jurisdiction of this Court.

6. The first hearing of the case in this Court took place on the 6th of January 1958 when I recorded the statement of Mian Mushtaq Ahmad Gurmani as P. W. 1. Before, however, this statement was recorded, Mr. Muhammad Jaffar, Advocate for ;Z. A. Suleri accused, and Mian Bashir Ahmad, Advocate, for Umar Qureshi accused, advanced arguments on two points. The first of these points was that the trial be by jury and the second that the prosecution should be conducted by the Advocate General, West Pakistan, and not by Mr. A. K. Brohi, Sh. Khurshid Ahmad and Ch. Muhammad' Siddique, who had been engaged by the‑complainant as his counsel. I rejected the conten tions of the learned counsel for the accused on both the points for reasons which I will detail in the sequel. In his statement, Mian Mushtaq Ahmad Gurmani denied that the letter, a facsimile of which was published in the Times of Karachi on the. 3rd of September 1957 and which was marked by me as Ex. P. 2, was written by him. On the same day, in order to get informa tion on some points which appeared to me of a formal nature but of importance, I recorded the statements of the three accused persons though they had not crossexamined Mian Mushtaq Ahmad Gurmani on that date. The complainant was cross- examined on a later date and on no less than three or four occasions. In cross‑examination he was asked questions on various aspects of the case. Many of the questions appeared to me to be unnecessary but as they related to relevant points,. I had no option but to record the answers given to them. I wilt not summarise here the statement of the complainant while under cross‑examination and will only refer in the sequel to those parts of it which are material for the decision of the point under consideration. When questioned by me on the 6th of January 1958, Z. A. Suleri accused admitted that he was the editor‑in -chief of the Times of Karachi and added that the alleged defamatory letter was published under his instructions. In order to know where the original of the photostat copy on which the letter published in the Times of Karachi dated the 3rd of September 1957 is based was, I asked Z. A. Suleri accused whe ther he had the original of the photostat copy and he replied that Sardar Aman Ullah, whom he described as an official of the Public Information Department of the Government of Pakistan, had handed over a photostat copy of a letter stated to be that of Mian Mushtaq Ahmad Gurmani, to Sultan Ahmad, a correspondent of the Times of Karachi. Umar Qureshi accused, when questioned with regard to the original of Ex. P. 2, stated that the photostat copy was given to Sultan Ahmad, the Chief Correspondent of the Times of Karachi, by Sardar Aman Ullah, Deputy Principal Information Officer, Government of Pakistan, adding that that was all the information he had about the document in question. I questioned Umar Qureshi if Sardar Aman Ullah had asked the newspaper to publish the document and received the reply that Sardar Aman Ullah had not talked to him but from the fact that the document was handed over to a correspondent of the paper, he presumed that it was to be published. The third accused, Khurshid Ala m, too made no useful contribution towards the solution of the mystery surround ing the original of the photostat copy on which the alleged defamatory letter which appeared in the Times of Karachi dated the 3rd of September 1957 was based.

7. The production of the original of the photostat copy on which Exh. P. 2 was based could shorten the trial of the case and I, therefore, issued notice under section 540 of the Code of Criminal Procedure to Sardar Arran Ullah to appear in Court on the 10th of February 1958, along with certain documents relating to the accession of the State of Bahawalpur. Some days before the 10th of February 1958, it was represented to me that the documents which Sardar Aman Ullah' had been directed to produce could not be in the possession of the Department in which he served, and Mr. Muhammad Asad Khan, Assistant Secretary in the Department of Frontier Regions and States, should be directed to produce those documents. This application put in on behalf of the complainant was accepted by me and on the 10th of February 1958 Mr. Muhammad Asad Khan and Sardar Aman Ullah appeared as Court‑witness No. 1 and Court witness No. 2, respectively. I had intended to take the statement of Sardar Aman Ullah after Mian Mushtaq Ahmad Gurmani had been cross‑examined by the counsel for the accused, but when the statement of Mr. Muhammad Asad Khan (C. W. 1) finished, Mr. Muhammad Jafar made a request that before he was called upon to cross‑examine the complainant, Sardar Aman Ullah may be examined. He explained this request by saying that if Sardar Aman Ullah admitted that he handed over to Sultan Ahmad, the Chief Correspondent of the Times of Karachi, the photostat copy of the letter which appeared in that paper on the 3rd of September 1957, it may not be necessary for the accused to plead that what was published by them was true. This request was granted and I recorded the statement of Sardar Aman Ullah as the second Court‑witness. He admitted that he had handed over the photostat copy, on which the publication in dispute was founded, to Sultan Ahmad, the Chief Correspondent of the Times of Karachi. He said in answer to a question by me that he had been given the photostat copy by a man named Hakim Saif Ali who met him on the afternoon of the 2nd of September 1957, at the residence of Malik Feroze Khan Noon, the present Prime Minister and Foreign Minister of Pakistan, who on that date was only the Foreign Minister. I asked Sardar Aman Ullah whether I was to take it that he accepted the word of Hakim Saif Ali that what was given to him was a photostat copy of a letter written by the complainant and his reply was that Hakim Saif Aai had not told him that the photostat copy was of a letter of the complainant, but Malik Feroze Khan Noon had said so. Naturally the question arose why the letter had appeared only in one paper en the 3rd of September 1957, and I asked Sardar Aman Ullah why he had not had the letter printed by issuing a press note or a hand‑out in spite of the fact that he had received it from no less a person than the Foreign Minister of Pakistan, to which he gave a long reply, the gist of which was that Malik Feroze Khan Noon had told him that Hakim Saif Ali, who had been introduced to the witness, had brought a photostat copy of a letter which he asserted was sent by Mian Mushtaq Amad Gurmani to Mr. Patel about the accession of Bahawalpur. Sardar Amari Ullah added that Malik Feroze Khan Noon said to him that Hakim Saif Ali appeared to be certain that the document was genuine and wanted to have it published. The witness went on to say that Malik Feroze Khan Noon told him that he had sent for him because he was his Information Officer and he should see if the press was at all interested in publishing the letter. It was in these circumstances, said Sardar Aman Ullah, that he had given a photostat copy of the letter to Sultan Ahmad, whom he had known for some years. When the document was handed over to Sultan Ahmad he, according to Sardar Aman Ullah, contacted the editor on the telephone who replied that he would think the matter over whether or not to print the document, and after that Sardar Aman Ullah says he went away. When questioned whether Hakim Saif Ali was present in Court, Sardar Aman Ullah stated that he had seen him in the morning in the Court room but it was discovered that the Hakim had left. The mention, in connection with the document the complainant asserted to be a forgery, of the name of no less a person than Malik Feroze Khan Noon, who was at the time when Sardar Aman Ullah appeared as a witness, in addition to being the Foreign Minister of Pakistan, the Prime Minister of this country also, not unnaturally evoked public interest and the audience in Court thenceforth shot up manifold.

8. On the 11th of February 1958, I was hearing another case sitting with my brother Kaikaus when Hakim Saif Ali presented an application to me wherein it was‑said that he was the person who had handed over the photostat copy of the letter in dispute to Sardar Aman Ullah. The application prayed that he should be examined as a witness because he could throw a good deal of light on the facts of the case. I asked Hakim Saif Ali if he had the original of the photostat copy which appeared in the Times of Karachi dated the 3rd of September 1957, and he replied in the affirmative and said that he would produce it when he appeared as a witness. It was in these circumstances that I directed Hakim Saif Ali to appear before me on the 15th of February 1958, along with the original of the letter in dispute. Hakim Saif Ali, who said that he earned his livelihood by practising indigenous medicine, appeared on the date fixed and not only produced the letter Ex. C. W. 3/2 which, according to him, was the original of the photostat copy to which the case relates but also another letter Ex. C. W. 3/1, which bore the date 4th August 1947. The contents of Ex. C. W 3/2 were the same as that of the letter which was published in the Times of Karachi with this difference that at the top on the left were printed Bahawalpur' and underneath it 'Government of Abbasia' and on the right side there was written " Talib Husain, Inspector of Police, 21‑2‑53." When asked about Talib Husain whose name appeared on the letter, Hakim Saif Ali (C. W. 3) stated that the document Ex. C. W. 3/2 as well as the document Ex. C. W. 3/1 was shown to Talib Husain, who as Inspector of Police in the former North‑West Frontier Province was investigating the case relating to the assassination of Khan Liaquat Ali Khan which occurred at Rawalpindi on the 16th of October 1951. Hakim Saif Ali said that Talib Husain had seen the documents Exs. C. W. 3/1 and C. W. 3/2 had signed them as he did some other documents produced before him and had kept them with himself for about two hours but returned them thereafter, saying that as Mian Mushtaq Ahmad Gurmani to whose reputation the documents were very derogatory was those days the Minister for the Interior in the Central Government of Pakistan, he would not take the risk of keeping them. Hakim Saif Ali asserted that the document Ex. C. W. 3/2 was the original of the letter alleged to be defamatory and as the impressions in the newspaper were not very clear, I asked Umar Qureshi accused if he had the photostat copy on which the letter which appeared in his paper was based and if he had no objection to producing it he should do so. Umar Qureshi accused said he had no objection to producing the photostat copy given to him by Sultan Ahmad and Ex. D. 1 was produced by him on the 1st March 1958, which was the next date of hearing after the 15th February. It will be useful to have a clear picture of what was said in the letter Ex. C. W. 3/1 which was not handwritten like Ex. C. W. 3/2 but typed except for the signature and therefore, the letter is reproduced below. It reads as follows :‑

" BAHAWALPUR GOVERNMENT OF ABBASIA

My dear Sardar Patel,

With my best efforts His Highness has agreed conditionally about the accession of Bahawalpur with India, provided Bikaner, Jaisalmir and Bahawalpur are put under him.

The bearer Fateh Chand will inform you about it. Secret messages in future may kindly be sent through Chama n Lal Pandey to whom I have sent to you earlier with my letter.

Religious sentiments of the Muslims of the State are at their climax but the fury is temporary, and will subside in the end as the intelligentia of the State realise my stand.

The army is pro‑Pakistan. It is, therefore, necessary that you may keep sufficient force on the State border to meet any eventuality.

With best wishes,

Yours sincerely,

M. A. Gurmani

4.8.47."

It may be mentioned that both on the 11th February 1958, when Hakim Saif Ali (C. W. 3) put in the application to be examined as a witness and on the 15th February 1958 when he made his statement in Court, Mr. Fayyaz Ali, the Attorney‑General of Pakistan, was present in the Court room. This is being mentioned because Mr. Brohi, the learned counsel for the complainant, referred in his arguments to the circumstance of the presence of the Attorney‑General of Pakistan on the above two days.

9. On the 1st March 1958 which was the next date of hearing in the case after the 15th of February 1958, Mr. Abdul Haq, Advocate, appeared for Z. A. Suleri accused, and Mr. Muhammad Jaffar who appeared for Z. A. Suleri accused before that day appeared for Umar Qureshi accused along with Mian Bashir Ahmad Advocate. I might here mention that Umar Qureshi accused appeared at the hearings but rarely because his application under section 205, Cr. P. C. for exemption from appearance in Court was granted by me and he was allowed to appear through his counsel Mian Bashir Ahmad, Advocate, on the condition that the accused will be produced in Court by the Advocate at three days' notice. On the first of March 1958, Hakim Saif Ali (C. W. 3) was subjected to lengthy questioning by Mr. Brohi, the learned counsel for the complainant, and Mr. Haq and Mr. Muhammad Jaffar, on behalf of the accused, asked the witness some questions, the object of the learned counsel for the complainant being to show that the witness was unreliable while that of the learned counsel for the accused was to show that he was an entirely truthful witness. The gist of the statement of Hakim Saif Ali was that the documents Exs. C.W. 3/1 and C. W. 3/2 came into his possession in Kashmir. He said that they had been handed over by Sardar Patel to Mian Nizam ud‑Din, a Gujjar of Kashmir, who, according to Hakim Saif Ali, had pro‑Pakistan sympathies. Hakim Saif Ali said that the object of Sardar Patel in handing over the documents to Mian Nizam‑ud‑Din was that Gujjars of Kashmir who numbered about a million should be informed that Sardar Patel who, like Mian Nizam‑ud‑Din, was stated by the witness to be a Gujjar, had no interest in Kashmir and had in fact refrained from taking possession of Bahawalpur State which had been offered to him on a plate by Mian Mushtaq Ahmad Gurmani, the then Prime Minister of the Bahawalpur State. While giving his statement, Hakim Saif Ali hinted that he had been told by people that Mian Mushtaq Ahmad Gurmani was not so stupid as to write the letter Ex. C. W. 3/2 in his own hand and that the letter was most probably in the handwriting of Mr. Fazal Karim, who used to be the Personal Assistant of the Prime Minister of Bahawalpur at the relevant time. He said that he had no doubt in his mind about the authenticity of the documents produced by him in Court because he believed that Sardar Patel, who like himself was a Gujjar, was a truthful man. I asked him if he had told Malik Feroze Khan Noon how the document, of which he had given a photostat copy to the press through Sardar Aman Ullah, had come into his possession and had said that he had. He also introduced the name of Kanwar Saadat Ullah, an Advocate of this Court, in connection with the documents by saying that Kanwar Saadat Ullah happened to go to Delhi and had been shown the documents and that the Advocate, when offered the Chief Justice‑ship of the Kashmir High Court by Sardar Patel, spurned the offer.

10. Hakim Saif Ali (C. W. 3) having mentioned on' the 15th February 1958 that he had produced the documents before a police officer who was investigating into the assassination of Khan Liaquat Ali Khan, I asked Mr. Fayyaz Ali, the Attorney‑General of Pakistan, who, as already mentioned, was present in; Court on the 15th of February 1958, if the file containing statements made during the investigation relating to the assassination of Khan Liaquat Ali Khan was available, and he told me that he would give me that information within a few days as he was expecting to come to Lahore in connection with some cases; which were to be heard by a Bench of which I was a member. On the 25th of February 1958, when the Attorney‑General had been in Lahore for a day, I had a letter sent to him through the Deputy Registrar to find out if the statement Hakim Saif Ali (C. W, 3) made before Talib Husain, Inspector of Police on the 21st of February 1953, was available and he told me orally that his inquiries at Karachi had revealed that the Central Government had only a copy of the statement and that the original was in the Civil Secretariat at Lahore. The statement of Hakim Saif Ali made to Talib Husain was, therefore, sent for to be used for purposes allowed by law. When Hakim Saif Ali appeared on the 1st of March 1958, he volunteered that his caste was Hashmi and not Gujjar, as given by him on the 15th of February 1958. This attitude, appeared to me to have been adopted because the caste of the witness recorded in the statement made by him to Talib Husain Inspector of Police, on the 21st of February 1953 was Hashmi and not Gujjar. The case of Mr. Brohi for the complainant was that the witness was a Mirasi by caste and neither a Gujjar nor Hashmi as he claimed to be. It was further brought out by Mr. Brohi by questioning him that the witness had left Pakistan soon after it was created and had gone to India. He explained this desire to leave Pakistan by saying that as he had been instrumental in preventing a Muslim League Ministry from being formed in the Punjab, he was apprehensive that members of the Muslim League will do him harm especially because he was a friend of Malik Khizar Hayat Khan Tiwana, the last Chief Minister of the Pre-partition Province of the Punjab who in token of that friendship had given him a house at Lyallpur. He further disclosed that he returned to Pakistan in the second week of May 1951 and was soon put under detention under the Punjab Public Safety Act. This detention lasted for a year after which his movements were restricted to his native village in the district of Gujranwala. He was asked if it was not a fact that the restrictions imposed on his movements because he was suspected to be a spy were removed by Malik Feroze Khan Noon, the present Prime Minister of Pakistan in his capacity as the Chief Minister of the Punjab, and he replied that that was not so and that the restrictions had been removed by Mr. I. I. Chundrigar, the then Governor of the Province of the Punjab, to whom he had made a fervent appeal in the name of the political work they had done together at Bombay. It was suggested to the witness that he had been summoned to Karachi near about the time when he appeared in this Court and presented his application to be examined as a witness and that he had travelled by an aeroplane but he denied this. He admitted that he had been going to Karachi but denied that he had seen Malik Feroze Khan Noon on any of his subsequent visits to the Federal Capital. He said that he had appeared before the Tribunal set up to inquire into the 'assassination of Khan Liaquat Ali Khan of which Tribunal Mr. Justice Muhammad Munir was the Chairman. I asked him if he had told Mr. Justice Muhammad Munir that he had the documents Exs. C. W. 3/1 and C. W. 3/2 with him and his reply was in the negative. In his statement dated the 15th of February 1958 he said that he had shown the documents Exs. C. W. 3/1 and C. W. 3/2 to Sheikh Sadiq Hasan who, without considering the matter, started challenging the complainant in the newspaper, but . subsequently he changed this statement and said that he had not shown the documents to Sheikh Sadiq Hasan and when asked to explain this apparent discrepancy in the two statements lie came out with the reply that both were correct because he had put the documents in folded condition before Sneikh Sadiq Hasan who had not cared to look at the contents. With regard to the photostat copy which found its way to the office of the Times of Karachi, he said that he had had Ex. C. W. 3/2 photographed by a photographer in Karachi and got three copies, one of which he handed over to Malik Feroze Khan Noon who in his turn gave it to Sardar Aman Ullah, while one of the other copies was given the next morning to a man named Shamsi and the third to a friend of Shamsi. He explained his desire to publish the alleged defamatory letter by saying that he had read in the press that Mian Mushtaq Ahmad Gurmani wanted to make a public statement with regard to the reasons which led to his resignation and that as he felt that Mian Mushtaq Ahmad Gurmani wanted to pose as a martyr it made his blood soil and he considered it a public duty to disclose to the world that Mian Mushtaq Ahmad Gurmani was in fact a traitor who should not be trusted. I asked him why he had not published along with a photostat copy of Ex. C. W. 3/2 one of Ex. C. W. 3/1, a bare reading of which could do much more damage to the complainant than the other document, and he replied that it was only the document Ex. C. W. 3/2 that he happened to have in his possession on the relevant day. He deposed that he had been in Karachi for about a fortnight before the day on which Mian Mustaq Ahmad Gurmani tendered his resignation from the Governorship of . the Province of West Pakistan and said that he had receipts of the hotel at which he was staying to prove his assertion. He produced those receipts which disclosed that he had stayed at the Royal Hotel, Karachi, from the 28th of August to the 5th of September 1957.

11. On the 28th of February 1958, Mr. Fazal Karim, Joint Director, Public Relations Department, West Pakistan, who had been mentioned by Hakim Saif Ali as the possible scribe of the letter Ex. C. W. 3/2, appeared before me with an application which said that he should be examined as a witness because ho had nothing to do with the letter in question, On the 1st of March 1958, 1 brought this application to the notice of the learned counsel for the parties who agreed that Mr. Fazal Karim should be examined as a Court‑witness so that both parties may have an opportunity to question him on the points that emerged from his statement. Consequently, I summoned Mr. Fazal Karim as a Court‑witness for the 8th of March 1958. When, however, the witness appeared on that day, the learned counsel for the accused stated that as it appeared that Mr. Fazal Karim would support the complainant's case he should not be examined as a Court witness and it should be left to the complainant to produce him as his own witness. This request of the learned counsel for the accused was acceded to and Mx. Fazal Karim was adopted by the complainant as a prosecution witness. Appearing as the second witness for the prosecution, Mr. Fazal Karim denied all knowledge of the documents Exs. C. W. 3/2 and C. W. 3/1. He also said that no part of the documents or the contents of Ex. P. 2, i.e., the defamatory letter which had appeared in the Times of Karachi dated the 3rd of September 1957, were in his handwriting or that of the complainant. He produced a document Ex. P. W. 2/2 which showed the movements of Mian Mushtaq Ahmad Gurmani from the 26th February 1947 to the 14th January 1948. According to this document, Mian Mushtaq Ahmad Gurmani was at Delhi on the 4th of August 1947 and the entry in the document, the authenticity of which has not been questioned by the defence, and in fact some entries in which have been relied upon by them, corroborates the statement of Mr. Gurmani.

12. The next witness produced by the complainant was Mr. Zulqar Nain, Retired Superintendent of Police, C. I. D., Punjab, who deposed that he knew Hakim Saif Ali, shown to him in Court, who was arrested in 1951 under the orders of the Government which the witness passed on to a Sub Inspector of Police for execution. By an order, a copy of which is Ex. P. W. 3/1 on the record, the witness directed Sub Inspector Abdul Ghani to interrogate Hakim Saif Ali. Mr. Zulqar Nain said that according to the C. I. D. records, Hakim Saif Ali had two aliases one of which was Chiragh Ali and the other Chiragh. The caste of Hakim Saif Ali was Mirasi and his home village was Mattu Bhaike within the jurisdiction of Police Station Naushera Virkan in the district of Gujranwala. The witness added that the statement of Hakim Saif Ali was recorded when he was in custody at the Old Fort, Lahore, which the witness visited from time to time, to question Hakim Saif Ali. The witness was, asked if at any time Hakim Saif Ali had shown the documents Exs. C. W. 3/I and C. W. a/2 to him and his reply was that the documents had neither been shown to him nor mentioned by Hakim Saif Ali. Mr. Zulqar Nain gave some other facts about Hakim Saif Ali and when I asked him what the practice was with regard to the lifting of restrictions from the movements of a person who was suspected of being a spy, he replied that the restrictions on movements of a person are lifted by the authority which imposed them. The next witness produced by the complainant was Mr. Muhammad Sharif, Professor, Co‑operative Training Institute, who deposed that he knew Hakim Saif Ali who was born in village Mattu Bhaike in the district of Gujranwala and that the real name of Hakim Saif Ali was Chiragh and his father's name was Allah Ditta, who was also known as Dada Allu or Allu Mirasi. P. W. 4 added that Chiragh and he were at school together at Lalpur.

13. Agha Bashir Ahmad, a business man of Gujranwala, and a Municipal Commissioner of that Town was the fifth witness produced by the complainant in support of his case. He deposed that on the 6th of February 1958 he had gone to Karachi by aeroplane and that by that very plane travelled Hakim Saif Ali and Raja Ahmad Ali, Political Secretary of the Prime Minister of Pakistan. He added that he did not know Raja Ahmad Ali before, but had been introduced to him at Karachi airport by Sardar Muhammad Siddiq and that Hakim Saif Ali and Raja Ahmad Ali left the airport in the same car which was a Government‑owned Chevrolet Car of the latest model. The witness produced the counter‑foil of the ticket issued to him for his journey on the 6th of February which is Ex. P. W. 5/1 on the record.

14. The sixth witness produced by the complainant was Sultan Ahmad, at present editor of a Karachi newspaper known as The Leader, who at the time when the alleged. defamatory letter was published in the Times ,of Karachi was the Chief Corresponden' of that paper. He deposed that he had b.‑en given a photostat copy of the letter by Sardar Aman Ullah and that when he received the photograph he contacted Z. A. Suleri accused on the telephone and apprised him of this. He also stated that the comments appearing in the Times of Karachi, dated the 3rd of September 1957, with regard to the letter Ex. P. 2 were contributed by Umar Qureshi accused and he himself had typed them out and admitted that lie had made some minor alterations in the draft of Umar Qureshi. He also said that the photostat copy was handed over to him by Sardar Aman Ullah at about 8 p.m. but that about eight hours earlier he had been informed by Malik Feroze Khan Noon that an important document was to be released that day. It may be mentioned here that though in his statement dated the 12th of March 1958 Sultan Ahmad (P. W. 6) stated in clear terms that Malik Feroze Khan Noon had told him at about noon on the 2nd of September 1957 that a document of political importance would be released that day, he modified that statement the next day and said that it was not Malik Feroze Khan Noon himself who at about noon on the 2nd of September 1957 promised to release a document of a political nature and that the information had been conveyed by Malik Feroze Khar Noon through his Information Officer, Sardar Aman Ullah. The witness also said that at the time he was given the photostat copy of the letter alleged to have been written by Mian Mushtaq Ahmad Gurmani on the 23rd of August 1947, Sardar Aman Ullah had with him about 20 or 25 more similar photographs

15. The seventh witness produced by the complainant was Zamir Ahmad, a journalist of Karachi, who deposed that in September 1957 he was working with the newspaper Dawn as a correspondent and that he had contributed what appeared under the heading "Bomb which did not explode" in the issue of the Dawn dated the 3rd of September 1957, and "Was this the Bomb Shell" which appeared in the Dawn of the 4th of September 1957. These contributions of the witness which have some bearing on the case may here be copied out in extenso: What appeared in the Dawn dated the 3rd of September 1957 was' marked as C. W. 2/2 and is as follows:‑

"The bomb that did not explode:

By Dawn Special Correspondent.

A Senior Republican Member of the Central Cabinet yesterday promised a "Bomb Shell" to press correspondents.

The bomb did not explode yesterday but the Republican Minister conveyed to the press that night that it would be ignited after two or three days.

He would not disclose the nature of the explosive but it was indicated that it was political and was based on a photostat copy of a document."

"Was this the Bomb Shell" which has been marked as Ex. C. W. 2/1 and which appeared in the Dawn dated the 4th of September 1957 was as follows:‑

"Two Republican Central Ministers had towards the close of the August Session of the National Assembly told certain press correspondents that a bomb shell would be thrown shortly. They had not, however, disclosed the nature of their bomb shell.

The promise was revived by one of the two Republican Ministers on Monday when he told press correspondents again without disclosing the nature of the bomb shell that it would be thrown during the day.

The promise was communicated by an officer of the Pakistan Government to more correspondents in the afternoon who were made to wait for the bomb shell for over two hours only to be told by the official after he had paid a hurried visit to the Minister's residence that the Minister would throw the bomb after two or three days.

Indications were, however, given to the press correspondents that the bomb shell related to a document of a political character. That was the last that the correspondents heard of the bomb shell."

Zamir Ahmad (P. W. 7), when appearing in Court on the 12th of March 1958, said that the Minister mentioned in the paper Dawn dated the 3rd September 1957 was no other than Malik Feroze Khan Noon, the Prime Minister of Pakistan, who was in September 1957 only the Foreign Minister of this Country, but, like Sultan Ahmad (P. W.'6), modified his statement the next day and said that the information conveyed to him by Malik Feroze Khan Noon was not given by the Minister himself but by Sardar Aman Ullah, his Information Officer. The next witness produced by the complainant was Shamim Ahmad (P. W. 8) who at the relevant time was the representative in Karachi of the newspaper Civil & Military Gazette of Lahore. He said that at about 11 or 12 a.m. on the 2nd of September 1957 he went to the Foreign Office at. Karachi where he met Malik Feroze Khan Noon who was then the Foreign Minister of Pakistan. He asked Mr. Noon if there was any news and trio Minister promised a bomb shell. When asked why the bomb shell could not be exploded immedia tely, the Minister replied that the bomb will be released to the press by the Information Department a little later. The witness added that he asked the Minister to tell him what the bomb was and the reply of the Minister was that he should wait till the afternoon.

16. I might here mention that the three witnesses connected with journalism, i.e., Sultan Ahmad (P. W. 6), Zamir Ahmad (P. W. 7) and Shamim Ahmad (P. W. 8) when asked to disclose the source of their information with regard to what had been described as a bomb shell near about the time when the alleged defamatory document was published by the Times of Karachi, took up the position that as journalists they had given an implied promise to their informant riot to disclose his name and would rather not do so. This was an entirely untenable position because the Law of Evidence which deals with witnesses and the privileges that can be claimed by them, nowhere recognises the privilege these witnesses claimed. It had to be pointed out to them that the law of the land did not give people connected with journalism any special rights with regard to secrecy on the question of the source of their information and that they could not refuse to give information on relevant points on the ground that they were thereby infringing journalistic etiquette. I need hardly emphasise that the idea entertained by some people connected with journalism that they can keep back information from a Court about a matter which can be validly inquired into by that Court is entirely erroneous. If a person connected with journalism appears as a witness in Court, lie can refuse to answer only those questions the asking of which the law does not permit and no others. It is true that some people would not give information to journalists if they knew that the source of information could become public property, but that consideration cannot allow the circumvention of the law of Evidence contained in the Evidence Act, 1872. This is the legal aspect of the matter and even from the moral aspect I, do not see why a person who has given information to the world at large by conveying it to a person connected with a newspaper should expect that no one should know that he was the source of the information which received publicity through the medium of the press.

17. The ninth witness produced by the complainant was Shafiq Ahmad, Administrative Officer of the office of the District Magistrate, Karachi, who produced the declaration of Khurshid Alain as printer and publisher of tile, Times of Karachi. The witness said that there was no declaration in the office. ,of the District Magistrate by the editor of the paper because under the law no such declaration was necessary. The next witness was Muhammad Nur Ullah, a photographer of Karachi. He was produced because Hakim Saif Ali had mentioned in his statement that he had had Ex. C. W. 3/2 .photographed by this man. P. W: 10, however, while admitting that he had photographed a document for Hakim Saif Ali denied that Ex. D. 1 was one of the photographs taken by him. The eleventh witness for the prosecution was Ghulam Sabir, Establishment Officer of the Pakistan International Airways at Lahore. He deposed that the records of the company, which he showed to Court but was allowed to take away after his evidence was over, disclosed that on, the 6th of February 1958, Agha Bashir, Raja Ahmad Ali and one Hashmi had travelled by the afternoon flight of the company's aeroplane from Lahore to Karachi. He also said that the name of Raja Ahmad Ali appeared at No. 21 of the list while that of Hashmi was at No. 22. The witness added that according to the register, one of the passengers in the afternoon flight on the 4th of February 1958 from Karachi to Lahore was Raja Ahmad Ali and that on the same day one S. A. Hakim flew from Karachi to Lahore by the morning plane. The twelfth witness produced by the complainant was Mr. Nasim Qadri, A. D. R. O. Anarkali, Lahore, who deposed that half of Moolchand Building at Lahore ;had been allotted to Z. A. Suleri accused and that in his application 4 form for getting the allotment Z. A. Suleri had mentioned the name of Malik Feroze Khan Noon as one of the persons who knew him and could testify to his being a refugee who had left property in India. The last witness for the prosecution was Sheikh Saeed Ahmad, Superintendent West Pakistan Revenue Department, Excise and Taxation Section, who produced an application Ex. C. W. 13/1 alleged to have been sent by Hakim Saif Ali to the West Pakistan Minister for Excise and Taxation. The prosecution wanted the application to be brought on the record because when questioned if he had made an application to the Excise and Taxation Department for a licence to sell liquor wherein he had said that some years ago he had a liquor shop at Baroda, Hakim Saif Ali (C. W. 3) had denied having put that in his application. After the statement of P. W. 13, a supplementary statement of the complainant was taken because it had become necessary to do so for the reasons detailed on the record and the evidence in support of the complainant closed after that. In the course of the prosecution evidence a number of documents in addition to those already mentioned were brought on the record. The more important ones of those documents were these:‑

(1) Policy speech made by the complainant on the 18th of August 1947 at Bahawalpur (Ex. P. 15).

(2) Farman issued by the Amir of Bahawalpur on the 23rd of August 1947 (Ex. P. 16).

(3) A letter sent by the Quaid‑i‑Azam to Mian Mushtaq Ahmad Gurmani on the 8th of October 1947‑a copy of which is on the record as Ex. P. 11.

18. At the conclusion of the evidence led by the complainant I questioned the accused on the 13th of March 1958. The position taken up by Z. A. Suleri accused was that Sultan Ahmad, who was the chief correspondent of the Times of Karachi, contacted him on the telephone and informed him that a photograph of a letter alleged to have been written by Mian Mushtaq Ahmad Gurmani had been brought to him by Sardar Aman Ullah and he himself replied that the document should be shown to Umar Qureshi accused who should contact him. He stated that Umar Qureshi told him that he had seen the document which would be printed. Z. A. Suleri accused added that the document was printed with his knowledge. He was asked what else he had to say and he replied that the Information Department of the Government of Pakistan is the paramount channel of authentic information to be conveyed and communicated to the press and whatever emanates from that department is acceptable by the press. He added that the chief correspondent of a newspaper is a highly reliable person and most of his stories go in the newspaper without being checked by the editor and, therefore, when Sultan Ahmad told him that such a document was brought to him by the Information Officer he had no doubt whatever about the authen ticity of the document. He said further that Sultan Ahmad had departed from the truth when he said in his statement as a prosecution witness that he (Suleri) had visited the office on the 2nd of September 1957. The statement of Umar Qureshi made on the 13th of March 1958 was that the photostat copy Ex. D. 1 on which Ex. P. Z was based was brought to him by Sultan Ahmad, the chief correspondent of the Times of Karachi, and his position was that when lie received the document and came to know about the source from which it had come he had telephoned to Z. A. Suleri, the editor‑in‑chief of the Times of Karachi, who had agreed to its publication. Umar Qureshi added that he merely carried out the instructions of Z. A. Suleri who was the editor‑in- chief of the paper. As occasions arose the accused were examined on other points also but nothing of importance was said by them in these statements. However, Z. A. Suleri accused volunteered a statement on the 30th of April 1958, the day previous to that on which the arguments in the case terminated, that in the month of February 1958 he was shown by Mr. Fayyaz Ali, the Attorney- General of Pakistan, a photograph of a lengthy note written by Mr. Fazal Karim on an official file, but added that the Attorney -General had not told him that the photograph was being sent to the United States of America for comparison with the alleged defamatory letter which the evidence led by the defence had shown had in fact been done.

20. Before I deal with the evidence given by the defence witnesses, I might mention the documents on the record which directly refer to the accession of the Bahawalpur State. On the 14th of August 1947, Mian Mushtaq Ahmad Gurmani, as Prime Minister of Bahawalpur, wrote the following D. O. letter No. 185‑C, which is marked as Ex. P. 6 on the record and is in file No. S. 2/5/47‑1947, Ministry of States and Frontier Regions, to Mr. C. C. Desai, 1. C. S., Joint Secretary to the Government of India, States Department, New Delhi :‑

"My dear Desai,

Apropos our discussion on the subject of the standstill agree ment between the dominion of India and the Bahawalpur State, I am enclosing two copies of the agreement duly signed by me on behalf of the Bahawalpur State. I have included in the schedule to the agreement only such matters as are of common concern between the dominion of India and the State. In view of the geographical position of Bahawalpur State, the arrange ments regarding other matters will form part of standstill agreement between the dominion of Pakistan and the Bahawalpur State. I have made consequential changes in the body of the printed agreement which you gave me without changing its essential features.

Yours sincerely,

M. A. Gurmani."

A copy of the above letter was sent to the Secretary, External Affairs and Commonwealth Relations, Government of Pakistan, Karachi, with endorsement No. 186‑C, dated the 14th of August 1947. The agreement mentioned in the above letter is Ex. P. 7 on the record and shows that a standstill agreement was sought with India with regard to the following subjects:‑

(1) Currency and coinage.

(2) Extradition.

(3) Irrigation.

(4) Motor Vehicles.

(5) Opium.

(6) Relief from double income‑taxation and arrangements relating thereto.

(7) Existing privileges and immunities enjoyed by the Ruler.

On the same day, i.e., the 14th of August 1947, the complainant sent his D. O. letter No. 187/C to Sardar Abdur Rab Nishtar, who was then the Minister for Communications, Government of Pakistan. This letter reads as follows:‑

"My dear Sardar Sahib,

Apropos our conversation yesterday regarding standstill agreement between Bahawalpur State and the dominion of India, I am enclosing for your information a copy of my letter to the States Department, Government of India, along with its enclosures.

Yours sincerely,

M. A. Gurmani.

On the 16th of August 1947, Mian Mushtaq Ahmad Gurmani sent the letter Ex. C. W. 1/2 to Mr. Ikram Ullah, Secretary, Ministry of External Affairs and Commonwealth Relations, Government of Pakistan, Karachi, which is to be found in the abovementioned file, and reads as follows:‑

"My dear Ikram Ullah,

As it will take some dime to ‑ negotiate fresh agreement and arrangements in regard to matters of common concern between the Pakistan Government and Bahawalpur, I would suggest on behalf of His Highness's Government that the existing agreements and administrative arrangements on matters of common concern between the British Government and the former Government of India and Bahawalpur should for the time being continue. This will not, however, include the exercise of any power of paramountcy.

Yours sincerely,

M. A. Gurmani."

The reply which Mr. Ikram Ullah sent to Mr. Gurmani on the 17th of August 1947, reads as follows :‑

"My dear Gurmani,

Will you kindly refer to your letter dated the 16th of August 1947 regarding the standstill agreement between Pakistan and Bahawalpur. In reply, I am desired to say that the Government of Pakistan agree to the proposals made therein pending the negotiations of fresh agreements.

Yours sincerely,''

M. Ikram Ullah."

It appears that on the 9th of September 1947, at a meeting of the Pakistan Central Cabinet which was presided over by the Quaid‑e Azam, it was resolved that immediate negotiations should be opened with the States regarding accession. On the 15th of September 1947, Mr. Ikram Ullah, the Foreign Secretary to the Government of Pakistan, sent the following telegram to Mr. Gurmani:‑

We have many very urgent and important matters for dis cussion. Would you kindly come to Karachi at once."

The reply of Mian Mushtaq Ahmad Gurmani to the above mentianed telegram was sent by a‑ telegram addressed to Mr. Ikram Ullah. The telegram of Mian Mushtaq Ahmad Gurnlani, which is dated the 19th of September 1947, reads as follows :‑

", Reference your telegram dated September 15. Regret owing to recent disturbances in Bahawalpur it is not possible for Inc to leave just at present XXXX Shall come as soon as situation improves XXXX If there is something extremely urgent I can come provided an aeroplane could be arranged to pick me up at Khanpur and leave me back there XXXX Kindly wire XXX"

It is in evidence that on the 27th of September 1947, Mian, Mushtaq Ahmad Gurmani went to Karachi and from there sent a telegram to the President, Council of Regency, Khairpur Mirs, on the I s t of October 1947, from the Foreign Office, Karachi. The telegram which is Exh. P. 14 on the record, reads as follows :‑

"from Mr. Gurmani, Prime Minister, Bahawalpur. For President Khairpur Mirs. Passing through Khairpur Mirs tonight by mail.

Please meet at station. Matter urgent".

On the 2nd of October 1947, Mian Mushtaq Ahmad Gurmani addressed the letter marked Exh. C. W. 1/4 to Mr. Ikram Ullah. The letter reads as follows :‑

" My dear Ikram Ullah,

I was able to contact Mr. Ghulam Ali, President of the Council of Regency, Kairpur Mirs and Sheikh Baha‑ud‑Din, Member, Council of Regency, this morning on my way to Bahawlilpur. I have advised them to pass a formal resolution authorising Mr. Ghulam Ali to sign the Instrument of Accession on behalf of Khairpur State. They have promised to do so in a day or so and Mr. Ghulam Ali will sign the Instrument at Karachi on the 5th.

I had a preliminary discussion with Ala Hazrat Jalalat‑ul‑Mulk, Amir of Bahawalpur, this morning and he has summoned the Cabinet for a formal discussion tomorrow. I hope that the Cabinet will advise His Highness on Accession.

I have discovered some errors in the Pakistan (Provisional Constitution) Order 1947, which I will mention to you when we meet. I think we will have to incorporate certain amend ments Which I think will be for the Federal Legislature now to do but we should be ready with the draft before the next Session of the Constituent Assembly. I shall be very glad to assist if you could lend me a law officer for a week or so and I will also utilize the services of our Chief Justice, Honourable Mr. Justice Din Muhammad.

There should be no objection to issuing the attached unofficial note but I would suggest that it should not be issued as an official press note. I will communicate to you by telegram the resolution of our Cabinet tomorrow. In case the Quaid‑e‑Azam or you want me to come to Karachi on the 5th, please send me an express telegram and I shall try to leave here on the 4th and reach Karachi on the 5th.

Kindest regards.

Yours sincerely,

M. A. Gurmani".

The note attached to the above letter reads as follows :‑

"It is reliably understood that the States of Bahawalpur and Khairpur have agreed to accede to Pakistan".

On the 3rd of October 1947, Mr. Ikram Ullah wrote the following letter to Mr. Gurmani:-

" My dear Gurmani,

Your letter contained very good news, I have acted on your advice and informed the Qaid‑e‑Azam. The accession of these States at this juncture will be most welcome to every Musalman. We do not want to disturb you but if you can come over to Karachi with the Instrument of Accession it would be a good thing.

Yours sincerely,

M. Ikram Ullah".

On the 3rd of October, Mian Mushtaq Ahmad Gurmani addressed a letter to Mr. Ikram Ullah, which is marked as Exh. C. W. 1/6, and reads as follows :‑

"My dear Ikram Ullah,

I promised in my letter yesterday to let you know about His Highness's decision in‑regard to the accession of Bahawalpur to Pakistan. I am glad to inform you that His Highness has agreed on the Accession of Bahawalpur State to Pakistan and has signed the Instrument of Accession which I will bring myself tomorrow. I have also asked Mir Ghulam Ali to accompany me to Karachi and Khairpur Instrument will be completed in Karachi on the 5th. I shall arrive by the Lahore Karachi Mail on the 5th and shall contact you on arrival.

More when we meet.

Kindest regards,

Yours sincerely,

M. A. Gurmani".

Mian Mushtaq Ahmad Gurmani, as I have already mentioned in paragraph 4 above, took the Instrument of Accession of Bahawalpur State to Karachi, and the Instrument which was known as the First Instrument of Accession of Bahawalpur State which dealt with, Defence, External Affairs and Communications was accepted by the Quaid‑e‑Azam on the 5th of October 1947.

21. A word here about the accession of Khairpur State. On the 23rd of September 1947, a letter was sent by Mr. Ikram Ullah, Foreign Secretary, Government of Pakistan, to the President, Interim Executive Council, Khairpur State, Khairpur Mirs, wherein it was said that an Instrument of Accession with regard to defence, external affairs and communications be executed between Pakistan and Khairpur Mirs. A copy of this letter is on the record in file No. S‑2/10/47 of 1947 of the Ministry of States and Frontier Regions, States Branch, which file was marked as Ex. C. W. 1/7. No reply appears to have been sent to this letter by the authorities at Khairpur Mirs, and it is clear from the circumstances that Mian Mushtaq Ahmad Gurmani was entrusted to negotiate the accession of the State of Kairpur to Pakistan. The Instrument of Accession of Khairpur State, which was executed by Mr. Ghulam Husain, on behalf of the Minor Ruler of that State, was executed on the 5th of October 1947 and accepted by the Quaid‑e‑Azam on the 9th of October, 1947. I might mention that I have not been able to find any letter on the file relating to the accession of Bahawalpur similar to the one sent on the 23rd of September 1947 to the authorities at Khairpur Mirs, and I presume that the telegram which Mr. Ikram Ullah sent to Mian Mushtaq Ahmad Gurmani on the 15th of September 1947 and to which a reference has been made in the last paragraph was sent with the object of discussions relating to the Accession of the State of Bahawalpur.

22. I will now deal with the evidence produced in defence. Two applications for summoning defence witnesses were put in, the first being put in on the 11th of March 1958. Along with this application the learned counsel for the defence put in an application in which it was prayed that His Highness the Amir of Bahawalpur should be summoned as a Court witness, but I rejected that application, and the name of the Amir was included in the list of defence witnesses. The list contained amongst others the names of Mr. Shoaib Qureshi, the Ambassador of Pakistan in Iraq, and that of Col. A. S. B. Shah, Pakistan Ambassador in Egypt. I declined to issue summons to these two witnesses on the ground that their names had been included in the list of defence witnesses for the purposes of delay. All other witnesses were summoned, though it appeared to me that prima facie the evidence of some of them would not be relevant for purposes of the decison of the case. On the 20th March, 1958, when I was at Bahawalpur on Circuit duty, Mian Bashir Ahmad, one of the Advocates for the defence, presented before me an application for summoning more defence witnesses. This application contained the names, amongst others, of Mr. Shoaib Qureshi, Col. A. S. B. Shah and Mr. Appel, described as a handwriting expert from the United States of America. The application was granted subject to the condition that if Mr. Appel was not produced by the defence in Court on the 12th of April 1958, no further opportunity to pro duce him as a defence witness would be given. I might mention that when I saw the name of Mr. Appel in the list of witnesses, I had a feeling that he would not be produced as a witness because from what one knew of the stringency of the foreign exchange I was under the impression that the request of the accused for dollars would be no more than a woeful wail for American money which will be drowned in similar wails of persons whose need for dollars was greater than that of the accused, but my impression proved incorrect because on the 16th of April 1958 Mr. Appel did appear in Court and gave evidence which lasted for two days. It was explained to me at Bahawalpur that Mr. Shoaib Qureshi and Col, A. S. B. Shah were coming to Karachi to attend a conference and it would, therefore, be possible to examine them, and acting on what was said about these two witnesses I issued summons to them. The lists of defence witnesses included the names of an ex‑Governor‑General of Pakistan, of two ex‑Rulers of States, of an ex‑Governor of a Province, of two Ambassadors of Pakistan in foreign countries, of a gentleman from the United States of America, of a Provincial Minister and of a number of other important persons, and most of them did testify to certain facts. If the importance in life of a witness were the only criterion, the accused had succeeded in completely crushing the complainant under the unprecedented weight of the importance of the witnesses mentioned by them, but the law is that it is the nature and the truth of the evidence that a witness gives which is material and not the status in life of the witness. The accused had two objects in producing their defence witnesses, the first being that it was true that Mian Mushtaq Ahmad Gurmani had offered the accession of Bahawalpur to India by means of the letter the facsimile of which was published in the Times of Karachi, dated the 3rd of September 1957, and the second, that even if Mian Mushtaq Ahmad Gurmani had not made the offer of the accession abovementioned, the accused in good faith believed that he had done so and were, therefore, not liable in law for their action.

23. Mr. Shoaib Qureshi, Ambassador of Pakistan in Iraq, appeared as the first witness for the defence. He deposed that while posted at Delhi as the High Commissioner for Pakistan in India in the beginning of the year 1953, he was called by Mr. Tyabji, Joint Secretary in the Department of States, Government of India, and asked to tell the Pakistan 'Government to expedite reply to a protest made by the Government of India through their High Commissioner at Karachi. Mr. Shoaib Qureshi added that Mr. Tyabji told him that if no reply was received at an early date, the Government of India will be constrained to publish a letter which Mr. Gurmani had sent to Sardar Patel offering him the accession of the State of Bahawalpur to India. Mr. Qureshi .was asked If he had seen the letter and he replied in the affirmative saying that it was addressed to Sardar Patel who was the first Minister of States in the Government of India. He was asked if he was sure that the signatures on' the letter shown to him were those of Mr. Gurmani and he replied that he could not be certain. Mr. Qureshi was asked if he had given information to any person with regard to the letter alleged to have been seen by him in the file of the Government of India which he admitted contained information of a serious character and his answer was that he had informed Mr. Ghulam Muhammad, the then GoveFnor General, and Khwaja Nazim‑ud‑Din, the then Prime Minister of Pakistan. It is in evidence that a protest to a speech made by Mian Mushtaq Ahmad Gurmani in the Pakistan Constituent Assembly on the 27th of November 1952 was made by the Government of India but with that I will deal presently.

24. The other witness who deposed about some of the matters mentioned by Mr. Shoaib Qureshi (D. W. 1) was Khwaja Nazim‑ud‑Din, an ex‑Governor‑General and an ex‑Prime Minister of Pakistan. He was ‑ originally summoned as a defence witness, his name being mentioned in the first list, of defence witnesses. After Mr. Shoaib Qureshi had made his statement in Court on the 1st of April 1958, it was stated by Z. A. Suleri accused and the learned counsel for the other accused that they did not want to examine Khwa ja Nazim‑ud‑Din and gave him up. This appeared to me a very strange attitude to adopt because the only person who would corroborate the statement of Mr. Shoaib Qureshi (D. W. 1) was Khwaja Nazim‑ud‑Din and as I had by that time received intimation that he had left Dacca for Lahore to appear as a witness, I decided to examine him as a Court witness. Appearing as the sixth Court witness, Khwaja Nazim ud‑Din said that in the end of the year 1952 or the beginning of the year 1953 it had been brought to his notice by either the Foreign Minister or by one of the officials in the Foreign Department of the Government of Pakistan that the Government of India had threatened to expose Mr. Mushtaq Ahmad Gurmani if he did not withdraw the statement he had made in the Constituent Assembly of Pakistan with regard to India. The witness added that Mr. Shoaib Qureshi had also made a similar report but said that he did not remember if Mr. Qureshi had said that he had been shown some documents by any official of the Government of India. Khwaja Nazim‑ud‑Din was asked questions about the orders he had passed on the official file relating to the protest of India and admitted having done so.

25. I may here deal with the documents relating to the protest mentioned in the last two paragraphs because it is on that protest and the statement of Mr. Shoaib Qureshi that a substantial part of the defence of the accused is based. It is in evidence and is proved from the official reports of the Constituent Assembly that on the 17th of November 1952 Mian Mushtaq Ahmad Gurmani, who was then the Minister for the Interior, Government of Pakistan, made a speech part of which ran as follows :‑

" Yes, I explained my position to the Quaid‑e‑Azam. Later on he agreed that my service in Bahawalpur at the time of partition was more useful in the Muslim interest than my going to the Punjab when I was invited to lead the party there. I am glad to say that I took the right decision at that time as the later events proved. When I went to Bahawalpur, things were not very pleasant. We were completely isolated and Bahawalpur was under the threat of an aggression. There were raids from India side backed by forces. We on our own successfully faced these dangers and kept the lifeline of Pakistan open. All these things are on record. I am not saying anything which I cannot substantiate. I openly and clearly told Pandit Nehru and his Government that if a single Indian soldier entered the territory of Bahawalpur, I will take it as an act of aggression and fight it out to the last man. I am glad to say that the soft belly of Pakistan, as Quaid‑i‑Azam described Bahawalpur at that time, became Pakistan's strong fortress".

On the 15th of January 1953, the office of the High Commissioner for India in Pakistan at Karachi sent their note No. 2‑D H.C./53 Genl. which is marked as Ex. D. W. 1/1 and reads as follows :‑

"The High Commission for India in Pakistan presents its compliments to the Government of Pakistan, Ministry of Foreign Affairs and Commonwealth Relations, and has the honour to draw their attention to the following extract from the statement made by the Honourable Mian Mushtaq Ahmad Gurmani in the Pakistan Parliament on the 17th of November 1952 while speaking on the Bill further to amend the Restriction and Detention Ordinance 1944 as appeared in the Dawn dated the 18th of November, 1952 :‑

"We were completely isolated and Bahawalpur was on more than one occasion threatened by the Indian authorities of even aggression and of even sending their forces and my reply to them was‑and all these things are on the record, I am not saying anything which I cannot substantiate‑my reply to Pandit Nehru was that if a single Indian troop enters the soil of Bahawalpur I will take it as an act of aggression and I shall deal with it with the limited resources that I have '.

The High Commission is instructed to point out that what the Honourable Mr. Gurmani has said is not correct. There was no question at any time of India taking any action in regard to Bahawalpur. In fact the Honourable Mr. Gurmani himself approached the Government of India on the 14th of August 1947 for a standstill agreement. The Government of India were clearly of the opinion that Bahawalpur would naturally be associated with Pakistan and, therefore, the Government of India were reluctant even to enter into a standstill agreement. The Honourable Mr. Gurmani has said in his statement that he is prepared to substantiate his statement. The Government of India would be glad if he did so.

The High Commission would appreciate an early reply in the matter.

The High Commission avail itself of this opportunity to renew to the Government of Pakistan the assurance of its highest consideration".

The above reproduced letter was addressed to the Ministry of Foreign Affairs and Commonwealth Relations, Government of Pakistan, Karachi, and on the 17th of January 1953 the letter of the High Commissioner for India in Karachi was acknowledged by the Foreign Department by their letter No. D. 260‑1/53. The letter of protest was shown to Khwaja Nazim‑ud‑Din who vas then the Prime Minister of Pakistan, and on the 24th of January 1953, Mr. Ali Asghar, who was then the Private Secretary to the Prime Minister of Pakistan, wrote the note (Ex. C. W. 6/ 1) which reads as follows:‑

" Honourable the Prime Minister desires that this file should be shown to Honourable the Minister for Interior".

The file was sent to Mian Mushtaq Ahmad Gurmani who in his handwritten note (Ex. C. W. 6/2) said the following :‑

" I am sending herewith material for reply to Indian High Commission. Honourable the Prime Minister may be interested to see copies of the correspondence which passed between me and the Governments of India and Pakistan respecting the subject".

He attached to this note the correspondence with regard to the standstill agreements between Bahawalpur State and the Govern ments of Pakistan and India which has been reproduced in paragraph 20 above. On the 9th of February 1953, Khwaja Nazim‑ud‑Din noted below the note of Mr. Gurmani (Ex. C. W. 6/2 reproduced above) that he had seen that note and the reply should be sent as proposed by the Minister for the Interior. Some more correspondence passed between the office of the High Commissioner for India in Pakistan at Karachi and the Foreign Office of the Government of Pakistan, Karachi, as well as between the Foreign Office, Karachi, and the High Commissioner for Pakistan at Delhi and on the 16th of March, 1953, the following reply was sent by the Government of Pakistan to the High Commissioner for India in Pakistan :‑

(i) "The Ministry of Foreign Affairs and Commonwealth Relations presents its compliments to the High Commission for India in Pakistan and with reference to their note No. 2‑D.H.C. 53/Genl., dated the 2nd March 1953 has the honour to state that when this matter was first brought to the Ministry's notice, the Foreign Secretary invited Mr. Attal, Deputy High Commissioner, personally and explained to him that the report published in the Dawn was incorrect. After showing the correct official version of the Honourable Mr. Gurmani's speech of which a copy was given to Mr. Attal, he expressed the view that this should satisfy the Government of India whose primary object was to ascertain the correct version of the report before considering whether a disclaimer was called for. Subsequently Mr. Attal called again at the Foreign Office on the 17th February to report that the Govern ment of India's objection was confined to the marginally noted sentence appearing in 'the official report of the proceedings of the Pakistan Parliament. He added that he had been instructed to say that no such communication had in point of fact been received by the Government of India from the Honourable Minister".

(ii) The marginally noted passage was as follows :‑

"I openly and clearly told Pandit Nehru and his Government that if a single Indian soldier entered the territory of Bahawalpur I will take it as an act of aggression and fight it out to the last man".

(iii) The matter was therefore referred to the Honourable Minister and it was subsequently explained to Mr. Rajwade (in the absence of Mr. Attal from Karachi) on the 20th of February 1953 that when the Honourable Minister made the statement in Parliament he did not mean that he had addressed a communication to the Honourable Pandit Jawahar Lal Nehru to the effect noted in the margin or had spoken to him verbally, but had made this statement at a public meeting held in Bahawalpur and the Punjab at the time.

(iv) As the High Commission is well aware it was, and still is, the common practice for political leaders to address each other through public statements. In the circumstances it is not understood what further clarification is required in respect of this matter or how the question of expressing regret or issuing a disclaimer can arise. The crux of the matter is that such a statement was made by the Honourable Minister at one or more public meetings held at the time.

(v) As regards the statement in the note of the Indian High, Commission dated January 15, 1953, that Mr. Gurmani himself approached the Government of India on the 14th of August 1947 for a standstill agreement, the facts as stated by him are as follows :‑

Immediately before the transfer of power to India and Pakistan, Bahawalpur State along with other States was advised by the Crown Representative to enter into a standstill agreement with the dominion concerned in respect of matters of common concern. The Government of Bahawalpur discussed with the representatives of the Governments of India and Pakistan arrangements for the conclusion of standstill agreements on such matters. While the Government of Pakistan readily agreed to the proposal and concluded a standstill agreement with Bahawalpur State, the representative of the Government of India insisted that they would only accept the standstill agreement on the standard form which they had prepared for all Indian States, as any exception in the case of Bahawalpur State was likely to create difficulties for the Government of India in negotiating similar agreements. with the other States. The Government of India not only did not agree to enter into a standstill agreement with Bahawalpur State on the basis of restricted schedule of subjects, containing subjects of common concern, namely :‑

(1) Currency and coinage.

(2) Extradition.

(3) Irrigation.

(4) Motor Vehicles.

(5) Opium.

(6) Relief from double income‑tax and other arrangements relating thereto.

(7) Existing privileges and immunities enjoyed by the Ruler, but did not even acknowledge the Prime Minister of Bahawalpur State's letter dated the 14th August 1947 on the subject. A copy of the Prime Minister's letter to the Government of India, which was endorsed to the Government of Pakistan, is enclosed for ready reference'.

(vi) The Ministry of ‑Foreign Affairs and Commonwealth Relations hopes that the matter will now be treated as closed, as in its opinion any other course will only serve to revive an old controversy which should be forgotten."

To the above letter was attached a copy of the letter which Mian Mushtaq Ahmad Gurmani had sent to Mr. Desai on the 14th of August 1947, and which has already been reproduced in paragraph 20 above. It is in evidence that after this communication was sent to the Government of India, nothing further transpired between the two Governments with regard to the statement which Mian Mushtaq Ahmad Gurmani had made in the Pakistan Constituent Assembly on the 17th November 1952 and which had evoked the protest contained in Exh. D. W. 1/1 repro duced in the earlier part of this paragraph.

26. Khan Iftikhar Hussain Khan of Mamdot was the second witness for the defence. He said nothing very material about the matter in issue except this that he had heard five or six irresponsible persons say that Mian Mushtaq Ahmad Gurmani. had offered the accession of Bahawalpur to India. D. W. 2 was asked if he had not read the statements to that effect made by Sheikh Sadiq Hasan in the newspaper The Pakistan Times dated the, 27th of May and the 9th of June 1955, to which his answer was that he did not remember to have read those. statements, but that Sheikh Sadiq Hasan was entitled to his own views. Mian Abdul Bari, Member of the Pakistan Parliament, was the third witness for the defence. The only thing of substance asked from him was if it was not a fact that Mian Mushtaq Ahmad Gurmani was responsible for the creation of the Republican Party in the West Pakistan Provincial Assembly and his reply was in the negative.

27. Colonel A. S. B. Shah was the 4th witness for the defence. When examined on the 3rd of April 1958, he was asked if it was not a fact that Khan of Kalat, who was one of the witnesses for do defence in the first of the lists put in by the accused but was subsequently given up, told him something; about the talk that the Khan had with Mian Mushtaq Ahmad Gurmani about the accession of Kalat State, and the witness replied that he did not remember having been told any such thing by the Khan of Kalat. Subsequently, a few days later, an oral application was made to me by the learned counsel for the defence that Col. A. S. B. Shah may be allowed to be re examined by the defence because they had been told by Mr. Yahya Khan, a relative of Dr. Khan Sahib, that the witness could throw light on the question of accession of Bahawalpur State. I acceded to this request and Col. Shah was examined again on 8th of April 1958. In the statement he made on the 8th of April, Col. Shah said that he had been told by Khan Liaquat Ali Khan that there was some hitch with regard to the accession of Bahawalpur and that he should look into the matter. Col. Shah added that he undertook this task and approached Khan Qurban Ali Khan and Mr. Amjad Ali, the present Finance Minister of Pakistan who he knew were friends of Mr. Gurmani. The former, said that he did not know where Mr. Gurmani was but the latter gave information that Mr. Gurmani had pro‑Pakistan sympathies and there will be no difficulty with regard to 'the accession of the State to Pakistan. The witness added that he proceeded to Karachi where he met Mian Mushtaq Ahmad Gurmani who told him that the Instru ment of Accession had already been accepted by the Quaid‑i‑Azam. The witness was asked in cross‑examination if he knew what the hitch mentioned by Khan Liaquat Ali Khan was and his answer was in the negative. He was also asked if he cared to find out what the hitch was and to this question also his answer was in the negative. The witness admitted that at the time about which he had given evidence on the 8th of April, Mr. Ikram Ullah was the Foreign Secretary of the Government of Pakistan.

28. Sardar Shaukat Hayat Khan was the fifth witness examined by the defence. He said nothing material with regard to the facts in issue but expressed the view that Mian Mushtaq Ahmad Gurmani had done nothing useful towards the creation of Pakistan. He further said that the Quaid‑e‑Azam had told him once that Mian Mushtaq Ahmad Gurmani had presented before the Cabinet Mission, of which Sir Stafford Crips was a Member, a scheme which was opposed to Pakistan and this action of Mian Mushtaq Ahmad Gurmani had caused the Quaid‑e‑Azam a good deal of grief. The witness had to admit, however, that the Quaid‑e‑Azam was seriously considering the question of sending Mian Mushtaq Ahmad Gurmani to the Punjab as the Leader of the Muslim League Party, but, said that he could not say whether that desire was entertained by the Quaid‑e‑Azam before or after his conversation with the Quaid‑e‑Azam.

29. The seventh witness for the defence was Sheikh Sadiq Hasan. He was called because he had made two statements to the press to the effect that Mian Mushtaq Ahmad Gurmani, as Prime Minister of Bahawalpur, had tried to make Bahawalpur State accede to India. The first statement of Sheikh Sadiq Hasan in this connection was made on the 26th of May 1955, and was published as D. W. 7/1 in the newspaper The Pakistan Times of Lahore dated the 27th of May 1955. In the witness box after recounting his services to the Muslim League, Sheikh Sadiq Hasan said that he had made the statement reproduced in Exh. D. W. 7/1. It may be mentioned here that this statement of Sheikh Sadiq Hasan was made after about a week of the dismissal by Mian Mushtaq Ahmad Gurmani, the then Governor of the Punjab, of the Punjab Provincial Cabinet headed by Malik Feroze Khan Noon, the present Prime Minister of Pakistan. The exact date of the dismissal of Malik Feroze Khan Noon from the Chief Ministership of the Punjab is not mentioned on the record, but I find from the' Punjab Gazette that the dismissal took place a few days earlier than the statement of Sheikh Sadiq Hasan to the press on the 26th of May 1955, and in fact one part of that statement deals with that dismissal. It is necessary to reproduce only the first paragraph of the statement of Sheikh Sadiq Hasan which was published in the Pakistan Times dated the 27th of May 1955. It reads as follows :‑

"The Noon Ministry has been dismissed by Mr. Gurmani, Governor Punjab. The action is dictatorial and undemocratic. Repeated ministerial reshuffles do not inspire confidence. Unfortunately Mr. Gurmani appears to be dominating the Central Cabinet. It is a misfortune of the country that the Central Government has foisted on the Punjab a Governor who was hostile to the formation of Pakistan and wanted Bahawalpur to accede to India and thus was trying to deprive Pakistan of a Province of the overwhelming Muslim majority."

Sheikh Sadiq Hasan said that he had made the statement repro duced in the press. It is in evidence that when the above mentioned statement of Sheikh Sadiq Hasan was published on the 27th of May 1955, the Central Government of Pakistan, issued their Press Note (No. E. 2565 dated the 28th of May 1955), which is Ex. P. I on the record, and reads.as follows :‑

"Allegations against Punjab Governor baseless.‑In the political controversies going on at present in the Punjab it has been alleged against the Governor Mian Mushtaq Ahmad Gurmani that as Prime Minister of Bahawalpur he advised the State to accede to India. From the evidence available on the record of the Central Government, it is clear that this allegation is not correct. On the other hand, Mr. Gurmani was responsible for advising Bahawalpur to accede to Pakistan." Mian Mushtaq Ahmad Gurmani himself released to the press a part of the correspondence that had passed between him and the Pakistan Government with regard to the Bahawalpur State, and the letters released by the complainant included some of those which have been reproduced in paragraph 20 of this judg ment. On the 8th of June 1955, Sheikh Sadiq Hasan came out with another statement which was published as Exh. D. W. 7/2 in the newspaper The Pakistan Times of Lahore dated the 9th of June 1955. Only the first paragraph of that statement is relevant for the present case and is reproduced below :‑

"Mian Mushtaq Ahmad Gurmani had published his secret correspondence with the Pakistan Government ; let him also publish his secret correspondence with Pandit Nehru and others in India, about Bahawalpur State or deny the allegation and bring a criminal case against me."

Sheikh Sadiq Hasan was asked to disclose the source from which he had got the information that Mian Mushtaq Ahmad Gurmani had tried to make Bahawalpur State accede to India. His reply was that he had heard rumours about this and that his statement to the press was based on those rumours. He said that he had been hearing those rumours for a long time before he made the statement to the press and when asked to explain why in spite of the fact that he claimed to be a patriot of the first water he had not considered it necessary to apprise the world earlier of the greatly unpatriotic deal which according to him Mian Mushtaq Ahmad Gurmani wanted to enter into with India and thereby harm Pakistan, he came out with the reply that he had to think out what to say and that is why he levelled the charge against Mian Mushtaq Ahmad Gurmani shortly after Malik Feroze Khan Noon had been dismissed from the Chief Ministership of the Province of the Punjab by Mian Mushtaq Ahmad Gurmani who was at that time the Governor of that Province. The sum and substance of the state ments of Sheikh Sadiq Hasan was that he had acted on rumours and nothing but rumours when he accused Mian Mushtaq Ahmad Gurmani of an attempt to stab the newly‑created State of Pakistan in the back. The witness said that he had seen the Prime Minister of Pakistan in those days and asked him why in spite of his having made such a serious charge against the Governor of a Province he was riot being prosecuted by the Government, and the Prime Minister told him that he was safe and could not be touched. The next witness was Malik Nazir Ahmad (D. W. 8), Librarian of Bahawalpur, who was summoned to produce some publications of the newspaper "Kainat" for the years 1947 and 1948, and of the newspaper "Sutlej" for those years. He produced some copies of the Sutlej but said that the copies of the Kainat were not in the library.

30. General His Highness Alhaj Sir Sadiq Muhammad Khan Abbasi Bahadur, The Amir of Former Bahawalpur State, was the 9th witness for the defence. A letter of request had been sent to the Amir to appear as a witness to which he sent a prompt reply' through his Minister‑in‑Waiting that though he had no objection to giving evidence he should be examined on commission as, because of ill‑health, he was not in a fit state to undertake the journey to Lahore. The request of the Amir to be examined on commission, which was reasonable, was acceded to and I directed Mr. Riaz‑ul‑Huq, District Magistrate, Bahawalpur, under section 503 of the Code of Criminal Procedure, to examine the Amir on commission. The statement of the Amir was recorded at Sadiqgarh Palace on the 6th of April 1958, by Mr. Riaz‑ul‑Haq, and sent to this Court through the Deputy Registrar of this Court who had taken the relevant .parts of the record to Sadiqgarh. On the point in issue in the present case and other relevant points, the statement of the Amir is very complete. The Amir said that he had from its beginning been in sympathy with the Pakistan Movement because its object was the creation of a separate homeland for the Muslims of the sub‑continent that was British India. He deposed that in 1947 he had gone to Europe as it was his practice to do in the summer months and also for his treatment, but returned to this country in order to attend the celebrations in connection with Pakistan. He added that his relations with the Quaid‑e‑Azam Muhammad Ali Jinnah, the Founder of Pakistan, were very friendly, and that the Quaid‑e‑Azam had called on him at Malir a day or two before taking over as the First Governor‑General of Pakistan, and that it was in a car lent by him that the Quaid‑e‑Azam and Lord Mountbatten went out in a procession on the 14th of August 1947 to attend the ceremony of the Inauguration of Pakistan. The gist of the statement of the Amir on the point in issue in the present case was that at no time was it contemplated that Bahawalpur State should accede to India and that from the beginning it was understood that the accession of tie State will be to Pakistan because of the geographical, historical, strategical and economic position of the State. He said that he had informed the Quaid‑e‑Azam in an informal meeting at which Mian Mushtaq Ahmad Gurmani was also present that Bahawalpur will join Pakistan. The witness was asked whether at any time Mian Mushtaq Ahmad Gurmani had advised him that Bahawalpur State should accede to India and he emphatically replied that the complainant had never done so adding that if he had dared to make that suggestion there would have been a quarrel between him and his Prime Minister. The Amir was asked whether he had seen some articles in some newspaper to the effect that it had been contemplated at some stage that Bahawalpur should accede to India and that Mian Mushtaq Ahmad Gurmani was in favour of the accession of the State to India, to which he replied that he had never come across any such. writing, and if any such thing was written the authors must have been disgruntled people who had their own axes to grind. The Amir was asked by Sheikh Abdul Haq whether it was not a fact that there had been a quarrel between him and his eldest son on the question of accession. The reply of the Amir to this question was that this allegation was the figment of the imaginatioti of someone. No part of the by no means short statement of the Amir even hints that Mian Mushtaq Ahmad Gurmani had at any time advised him to accede to India or that he himself ever thought of taking that step. Photographs of the letters Exs. C. W. 3/1 and C. W. 3/2 (the letters produced by Hakhri Saif Ali) were shown to the Amir and he said that they were forgeries and that at no time was the stationary bearing the inscription "Bahawalpur Govt. of Abaasia" used in the State of Bahawalpur. The Amir was asked if it was not a fact that he had on the creation of Pakistan assumed the title of Jalalat‑ul‑Malak the Amir of Bahawalpur and he replied that he had done so on the advice of his Government explaining that the British paramountcy having come to an end his Kingship of the territory of which he was only a Nawab during the period of the British paramountcy revived and he had, therefore, taken the title of the Amir and Jalalat‑ul‑Malak.

31. The tenth witness for the defence was Muhammad Akbar, Assistant Secretary, Legislative Assembly of West Pakistan Province, who was produced to show that the claim which Mian Mushtaq Ahmad Gurmani had made when cross‑examined on the point that he had been a Member of the Muslim League all along was not correct. The witness did not give any useful information with regard to the point to prove which he was produced. The 11th witness for the defence was Mr. Muhammad Asad Khan, Assistant Secretary, Ministry of States and Frontier Regions, Government of Pakistan, who had been already examined as C. W. 1. When appearing as a defence witness, Mr. Muhammad Asad Khan proved some notes on the file relating to the Accession of Bahawalpur State to Pakistan. These notes relate to some objections which had been taken by some officials of the Foreign Department on the assumption by the Nawab of Bahawalpur of the title of the Amir and Jalalat‑ul‑Malak.

32. Sultan Ahmad, the editor of The Leader, who had appeared as the 6th witness for the prosecution, was examined as the 12th witness for the defence. While appearing as a defence witness he attempted to set at naught that part of his statement made as a prosecution witness which went against Z. A. Suleri accused. He said that though he had said in his statement as a prosecution witness that Z. A. Suleri accused had visited the office of the Times of Karachi on the evening of the 2nd of September 1957, he was not sere if Z. A. Suleri had done so. He further said. that though he had deposed in his statement as a prosecution witness that Z. A Suleri accused knew the handwriting of Mian Mushtaq Ahmad Gurmani he was not sure if this was so.

33. Islam‑ud‑Din, Secretary, Lahore Improvement Trust (D. W. 13) was sought to be examined in order to show that a house in Gulberg, which Mian Mushtaq Ahmad Gurmani had pur chased when he was the Governor of the Province of West Pakistan was sold to him at a very low price. The object of the defence was to prove that Mian Mushtaq Ahmad Gurmani had not been aboveboard in his dealings. The learned counsel for tha t accused could not satisfy me how the evidence could be brought on the record and though Mr. A. K. Brohi, the learned counsel for the complainant, said that he would not object to that evidence coming on the record because he said that he could prove that this charge against his client was entirely baseless, I did not allow the evidence to be produced as it was entirely irrelevant and inadmissible. I need not detail the reasons for disallowing this evidence because they were given by me at the time when the question arose on the 8th of April 1958 and are to be found at pages 329 and 330 of the record. Ashraf Hussain Bokhari, Assistant Engineer, Pakistan P. W. D. (D. W. 14) was sought to be examined with the object of proving that some articles be longing to the house allotted to the complainant at Bahawalpur when he was Minister for Kashmir Affairs were found missing when he left that house. This evidence again was irrelevant and inadmissible and in spite of the desire of Mr. A. K. Brohi, the learned counsel for the complainant, that the evidence should come on the record so that it could be proved that what was being alleged was baseless, I refused to allow that evidence to be led for the reasons mentioned in the order passed on the 8th of April 1958.

34. The 15th witness for the defence was Syed Talib Hussain, the police officer, Hakim Saif Ali (C. W. 3) had mentioned in his statement. At the time he appeared he had retired from the police service and was residing at Dera Ismail Khan. He deposed that Saif Ali had produced some documents before him of which he had made a mention in the record of the statement of Saif Ali prepared by him. The statement of Saif Ali made before this witness was already on the record as Ex. C. W. 4/1, and Talib Husain said that the documents produced. before him by Saif Ali were detailed in the list Ex. C. W. 4/1‑A. He was shown the documents Exs. C. W. 3/1 and C. W. 3/2 which had been produced by Hakim Saif Ali and was asked if they had been shown to him and his reply was that they had not been. He was asked if he could explain how his signatures appeared on the ,documents Exs. C. W..3/1 and C. W. 3/2 and to this question also his answer was in the negative. He said in answer to a question in cross‑examination that he was definite that Saif Ali had not produced before him any documents other than those mentioned to EX. C. W. 4/1‑A. The documents mentioned in Ex. C. W. 4/1‑A were some photographs which were produced in Court by Saif Ali and marked Exs. C. W. 3/33, C. W. 3/36, C. W. 3/37 and C. W.3/38 The witness admitted that the ink in which his signatures existed on the documents Exs. C. W. 3/36, C. W. 3/37 and C. W, 3/38 was different from the ink in which his signatures appeared to Exs. C. W. 3/1 and C. W. 3/2. He could not explain how his signatures happened to be on the two documents produced by Saif Ali but said that it appeared that the top portion of the documents on which his signatures existed had been pasted to a paper.

35. Kanwar Saadat Ullah, an Advocate of this Court, appeared as the 16th defence witness. He deposed that in the month of August 1949 he had gone to Delhi,. the capital of India, to attend the Urs of Amir Khusro when he met Hakim Saif Ali (C. W. 3) who showed him the documents Exs. C. W. 3/1 and C. W. 3/2. He further said that while at Delhi he had an interview with Sardar Patel who had offered him the Chief Justiceship of Kashmir but he spurned that offer. The witness was subjected to lengthy cross‑examination and it transpired that he was ‑not as unconnected with Malik Feroze Khan Noon as he had at first pretended to be. He had to admit that his younger brother Ijaz Ullah is married to a daughter of Malik Sardar Khan, the uncle and father‑in‑law of Malik Feroze Khan Noon. He also admitted that Malik Sardar Khan, the uncle of Malik Feroze Khan Noon, is married to a niece of the wife of his (witness's) paternal uncle. The witness was asked if he had at any time before appear ing in the Court disclosed to any one that he had seen the documents Exs. C. W. 3/1 and C. W. 3/2 which must have appeared to him to be documents of some importance and he replied that the only person to whom he talked about the documents was his brother Raja Abdullah Khan who,, because he happened to be a friend of Mian Mushtaq Ahmad Gurmani, told him not to give publicity to the fact because it was by no means unlikely that the documents shown to him by Hakim Saif Ali were not genuine.

36. The 17th witness for the defence was Mr. Fazal Karim, who had already appeared as the 2nd witness for the prosecution. He was questioned at considerable length by the learned counsel for the accused whose object appeared to be to show that he had after the coming into being of the Province of West Pakistan received undue promotion. The witness denied that he had received any undue promotion and at any rate it became clear that if any promotion was given it was not given by Mian Mushtaq Ahmad Gurmani but by Mr. Hasan Mahmud, a Member of the present Republican Provincial Cabinet in the Province of West Pakistan.

37. Mr. Inam‑ur‑Rahim, who retired as a Financial Com missioner of the Punjab some years ago, was the next witness to be examined by the defence. He had written a letter to me to say that Mian Mushtaq Ahmad Gurmani had probably made a mis statement when appearing as a witness because his recollection was that with regard to the plan he submitted to the Cabinet Mission, of which Sir Stafford Cripps was a member, MianMushtaq Ahmad Gurmani had given to the witness a different version to that given in Court. The witness explained that his interest in the matter was that of a historian but when asked if he had written any book on history he said that he had been contem plating to do so but had not been able to carry out his wish because he was busy in the construction of his house and two flats at Karachi. The statement which this witness made in addition to showing lack of knowledge of certain important events near about tile time of the creation of Pakistan is of such a neutral character that it need not detain us.

38. Ali Ahmad Rifat, editor of the weekly newspaper Sutlej of Bahawalpur, was the next witness examined by the defence. He deposed about certain articles he had written in his paper and about certain news which had appeared therein in the middle of the year 1947, some of which were to the effect that a demand was being made by some persons that Bahawalpur should at one,; accede to Pakistan and that some persons were expressing the view that the accession of Bahawalpur to India would be more beneficial to the State than its accession to Pakistan. The witness was asked to disclose the names of persons who had sent the news items but was unable to do so.

39. The twentieth defence witness was Sheikh Din Muhammad who retired as a Judge of this Court, worked as the Chief Justice of Bahawalpur State, was a Member of the Boundary Commission for the Punjab, became Governor of the Province of Sind which office he resigned, and is now the Adviser to the Government of Pakistan on Kashmir Affairs. He was called to depose that one or two days before the coming into being of Pakistan, Mian Mushtaq Ahmad Gurmani had told him that when the question of accession of the State came to be considered economic consideration was one of the factors which will have to be borne in mind. The witness appeared again at his own request and produced certain documents one of which is a copy of a letter Ex. D. W. 20/6‑A which Mian Mushtaq Ahmad Gurmani had written so that Bahawalpur gets an opportunity to address argu ments before the Punjab Boundary Commission.

40. The next witness was Wali Ullah who at one time wit the editor of the newspaper The Kamat. Because of some mistake lie was given a wrong number and now his number on the record is the unusual number 20‑A. He said that he had not brought the file of the Kainat because it had been taken away by the police in connection with a case under section 66 of the Bahawalpur Safety Act which was started against him in 1952.

41. Mr. Charles Andrews Appel (Jr.) of 3383 Stevenson Palace, New York, Washington. D. C., U. S. A., was examined as D. W. 21. In a very lengthy statement the witness deposed that the writing in Ex. P. 2, i.e., the alleged defamatory letter which appeared in the Times of Karachi dated the 3rd of September 1957 and on which the present case is based, appeared to be in the handwriting of Mr. Fazal Karim (P. W. 2). Mr. Appel gave reasons for his opinion that the author of the original of Ex. P. 2 was probably Fazal Karim, and was subjected to very lengthy cross‑examination.

42. The only other witness produced by the defence was Muhammad Ismail (D. W. 22) who deposed that he had taken photographs of certain documents. The other witnesses who had been summoned by the defence were given up.

43. Besides the witnesses mentioned above, some persons v: ere examined as Court witnesses under section 540 of the Code of Criminal Procedure. Four of them, namely, Mr. Muhammad Asad Khan (C. W. 1), Sardar Aman Ullah (C. W. 2), Hakim Saif Ali (C. W. 3) and Khwaja Nazim‑ud‑Din (C. W. 6) have been already mentioned and I will now deal with the other Court wit nesses and the evidence they gave. C. W. 4 was Mr. Abdul Haq, Prosecuting D. S. P., C. I. D., West Pakistan Lahore. He was ex amined mainly with regard to the document which contained the order of the removal of restrictions on the movements of Hakim Saif Ali (C. W. 3). C. W. 4 deposed, inter alia, that the date of the lifting of the restrictions on the movements of Hakim Saif Ali was the 17th of July 1953, a bare three months after Malik Feroze Khan Noon had assumed office as Chief Minister of the Punjab. The 5th Court witness was Mr. Ishtiaq Husain, Superintendent in the Ministry of Foreign Affairs and Commonwealth Relations, Pakistan Government, whose statement I considered necessary to prove the writings and signatures of some officials of that Department who could not appear in Court themselves by reason of the fact that they were posted in distant countries. Syed Nur Ahmad, editor of 'The Afaq, an Urdu daily of Lahore, was the 7th Court witness. He was cited as a defence witness and as "The Afaq" appeared to be the only other newspaper in which the letter alleged to be defamatory was published, I directed in the summons that he should produce the document from which he had copied out in his newspaper dated the 4th of September 1957 the alleged defamatory letter which appeared in the Times of Karachi on the 3^rd of September 1957. The accused gave the witness up when he came to Court and I examined him as a Court witness. He deposed that he had not received a photograph of the letter but had published its copy by making a block from what appeared in the Times of Karachi. He added that the Times of Karachi dated the 3rd of September 1957 was in Lahore on the 3rd of September itself otherwise a copy of the letter could not have appeared in "The Afaq" on the next morning. The 8th Court witness was Sufi Abdul Hamid. He too had been summoned as a defence witness but when he appeared in Court was given up by the accused. I considered his deposition necessary because Hakim Saif Ali (C. W. 3) had said that he had mentioned to Sufi Abdul Hamid that he wanted to give publicity to a letter written by Mian Mushtaq Ahmad Gurmanl to Sardar Patel and Sufi Abdul Hamid had said that it should be done. When questioned on the point Sufi Abdul Iiamid deposed that in the end of August or the beginning of September 1957, Hakim Saif Ali had told him that he wanted to publish a letter of Mian Mushtaq Ahmad Gurmani. When questioned if he had told Hakim Saif Ali to publish the letter the witness answered in the negative. The 9th Court witness was Mian Mumtaz Muhammad Khan Daultana. He too had been summoned as a defence witness but was given up when he appeared in Court. I considered his statement necessary with a view to finding out matters in connection with the detention and restrictions imposed on Hakim Saif Ali. The witness said that as Chief Minister of the Province of the Punjab he had passed orders restricting the movements of Hakim Saif Ali who was suspected to be a spy and a foreign agent. He said he knew Hakim Saif Ali, shown to him in Court, and that he had passed orders about his detention adding that according to the practice that obtained in this regard only a Chief Minister could have removed the restrictions on the movements of Hakim Saif Ali because he as Chief Minister had passed the orders of restrictions. The last Court witness was Mr. Muhammad Umar, Under Secretary, Home Department, Government of West Pakistan, Lahore, who appeared as the 10th Court witness. I summoned him to produce the record showing the names of persons who went to Delhi to attend the Urs of Amir khusro in 1949. My object in sending for this record was to find out whether or not Kanwar Saadat Ullah D. W. 16 had gone to Delhi in August 1949, as he claimed to have done. Mr. Muhammad Umar deposed that the record of names of persons who went to Delhi to attend the Urs of Amir Khusro in 1949 was not available. It transpired from his evidence, however, that Kanwar Saadat Ullah, Advocate (D. W. 16), had gone to Delhi in August 1950 to attend the Urs of Amir Khusro.

44. The evidence in the case finished on the 17th of April 1958, and I fixed the 24th of April 1958 for hearing arguments. On the 18th April, I received a telegram from Sheikh Din Muhammad that it was necessary that he should be examined on some points and I allowed him to appear on the 24th April 1958. I recorded the statement of Sheikh Din Muhammad on the 24th of April and a brief statement of Hakim Saif Ali (C. W. 3) after which arguments were heard.

45. On behalf of the defence arguments were opened by Sheikh Abdul Haq, counsel for Z. A. Suleri accused. Mr. Haq began by saying that the complainant had unjustifiably brought the name of Malik Feroze Khan Noon into this case. I pointed out to the learned counsel that the name of Malik Feroze Khan Noon had not been introduced into the case by the com plainant but by Sardar Aman Ullah whose name had been introduced by the accused and. not by the complainant. How long Mr. Haq would have spoken in defence of Malik Feroze Khan Noon who was not a party to the case, one does not know, because he was cut short by his client Z. A. Suleri who told him that he should concentrate his attention on trying to argue the case for his own client rather than for Malik Feroze Khan Noon, and thereupon Mr. Haq took up his other contentions. Dealing with the case itself, Mr. Haq raised the question of the jurisdiction of this Court to hear it. This point was raised more than three and a half months after the trial started in this Court and after' the evidence of both the parties had finished. The contention of Mr. Haq was that as there was no proof on the record of this case that the Times of Karachi which contained Ex. P. 2 was circulated in Lahore, the Additional District Magistrate, Lahore, in whose Court the complaint was initially lodged, had no jurisdiction to hear the case and, therefore, this Court had none. This argument of Mr. Haq was supported by Mr. Muhammad Jafar, learned counsel for Umar Qureshi, whose arguments on some other points were not the same as those of Mr. Haq. It appears to me that the argument raising the question of jurisdiction is entirely without force. I have said in paragraph 5 that in the complaint it had been clearly mentioned that the issue of the Times of Karachi containing the defamatory letter was circulated in Lahore and that the complainant in the brief statement that he made before the Additional District Magistrate, Lahore, had deposed to that effect. When the case came to the High Court, the question whether or not the Additional District Magistrate, Lahore, had jurisdiction to hear the case became entirely immaterial, and it is evidently for that reason that the complainant did not consider it necessary to depose before me that the issue of the Times of Karachi containing the defamatory letter was circulated in Lahore, and the accused at no earlier stage raised the question of lack of jurisdiction in this Court to hear the case. There is, however, evidence on the record which proves that the Times of Karachi which contained the defamatory letter was available in Lahore, and this evidence is to be found in the statement of Syed Nur Ahmad (C. W. 7), the editor of The Afaq, Lahore, who deposed that the facsimile of the letter alleged to have been written by Mian Mushtaq Ahmad Gurmani to Sardar Patel was obtained by him from what appeared in the Times of Karachi dated the 3rd of September 1957, which had reached Lahore that very day. It was contended that what was used by Syed Nur Ahmad may have been the Evening Edition of the Times of Karachi and not the Morning Edition which was produced in Court by the complainant in support of his case. This argument overlooks the fact that the letter and the comments that appeared in the Morning Edition of the Times of Karachi appeared word for word in the Evening Edition of that paper. But even if it be held that the Additional District Magistrate, Lahore, had no jurisdiction to hear the case, I do not see how the jurisdiction of this Court does not exist. I have said in paragraph 5 that Dr. S. A. Rahman, the then Chief Justice of this Court, had said in his order dated the 18th of November 1957, while withdrawing the case from the Court of the Additional District Magistrate, Lahore, that the case was to be heard by the High Court and trial was to be held at Lahore. This order was sufficient to give a Judge of this Court jurisdiction to hear the case at Lahore even if it be assumed that the paper was not circulated at Lahore. I hold, therefore, that the arguments addressed on behalf of the accused with regard to this Court having no jurisdiction to hold the trial are without substance.

46. I pass on to the questions raised by the learned counsel for the accused on the 6th of January 1958, i.e., the day on which the proceedings in the case started before me. As already mentioned, two points of law were raised by the learned counsel for the accused on that day. One was that the prosecution should be conducted by the Advocate‑General and not by the counsel engaged by the complainant, and the second was that the trial should be by a jury. Taking first the contention that the Advocate‑General should be in charge of the prosecution, I might mention that the learned counsel could point to no provision of law which enjoins that in trials held before the High Court, what ever the nature of the case, the prosecution must be conducted by the Advocate‑General of the Province in which the High Court is situate: The only provision of law which they could point to was that contained in section 270 of the Code of Criminal' Procedure which is to the effect that in every trial before a Court of Session, the prosecution shall be conducted by a Public Pro secutor, and the learned counsel for the accused wanted me to draw an inference that the prosecution in trials before the‑High Court must be conducted by the Advocate‑General of the Province because he can be considered to be a Public Prosecutor for the purposes of cases which are heard by the High Court. This contention cannot be accepted. The law on the point raised is not a matter of inference but of legislation and if a provision does not exist in the relevant statute, Courts cannot assume that the omission was not intentional. It appears to me that the fact that nowhere has the Code of Criminal Procedure said that the trials before a High Court shall be conducted by the Advocate General leaves no room for doubt that the Legislature never intended that it should be so. If I were to hold that section 270 of the Code of Criminal Procedure, which does not deal with trials before the High Courts but with trials before Courts of Session, means that trials before the High Court shall be conducted by the Advocate‑General, I would not be interpreting the law but legislat ing though the function of the Courts is to do merely the former and not the latter.

47. The learned counsel for the accused argued that under section 333 of the Code of Criminal Procedure the Advocate- General may, at any stage of any trial before the High Court under the Code of Criminal Procedure before the return of the verdict, if he thinks fit, inform the Court that he will not prosecute the accused upon the charge and thereupon all the proceedings on such charge against the accused had to be stayed and it must, therefore, be presumed that the intention of the Legislature was that the Advocate‑General was to conduct the prosecution in trials before the High Courts because if it were not so the Advocate‑General would not have been given the power that he has been under section 333 of the Code of Criminal Procedure. In this connection reliance was placed on a decision given by me which is reported as Ghulam Sarwar v. Niaz Ali and another (Pak. L R 1956 (W.P.) 1678 : P L D 1956 Lah. 848). The wording of section 333 of the Code of Criminal Procedure is not open to the construction which the learned counsel for the accused want to be placed on it because the section does not say that the Advocate- General is competent to exercise his power under it because he is in charge of the prosecution. My decision In Ghulam Sarwar v. Niaz Ali and another, referred to above, does not support the contention raised because a decision is authority only for the proposition it lays down and is applicable to the facts with which it deals. The facts of the reported case may be briefly stated as they will show that that decision has absolutely no bearing on the point agitated by the learned counsel for the accused. In that case two complaints had been instituted in a Court at Muzaffargarh, against a Sub‑Inspector and an Assistant Sub‑Inspector of Police who were alleged to have committed some offences under the Pakistan Penal Code during the investigation of a case under section 420 of that Code which had been registered at a police station in the district of Muzaffargarh by one of the accused persons. The report with regard to the case under section 420 of the Pakistan Penal Code was to the effect that a Member of the Punjab Provincial Cabinet had, by having false entries made in the revenue records, taken possession of a larger piece of land in Thai than he was entitled to. The accused persons in that case, namely, the police officers, put in an application for transfer of the case to this Court, and as during the hearing of the transfer applica tion it was stated before me that the defence of the police officers was to be that false cases had been instituted against them in order that the reputation of a high personality should not suffer, I transferred the case to this Court and its trial was subsequently entrusted to me by the then Chief Justice. It was represented before me by the complainants, one of whom was a Patwari, and the other a Qanungo, that they could not afford to engage a counsel at Lahore and for that reason and by reason of the fact that the name of a Minister was being mentioned with regard to the matter I requested the Advocate‑General to undertake the prosecution and. further directed that all expenses of the witnesses that the complainants (the not‑very‑highly‑paid revenue officers) wanted to produce .should be paid by Government. When the case came up for hearing the Advocate‑General applied, under section 333 of the Code of Criminal Procedure, that, the case should not be proceeded‑with. This prayer was opposed by the counsel for the accused who said that the case should be heard so that he may prove that his clients had been falsely involved in criminal cases in order that the name of a Minister should not get besmeared. After hearing the. counsel for the parties, I gave a decision that the Advocate‑General could exercise his power under section 333 of the Code of Criminal Procedure, but nowhere did I say that the fact that the Advocate‑General could exercise the power mentioned in section 333 of the Code of Criminal Procedure led to the inference that he was to conduct the prosecution in all trials held by the High Court. The learned counsel for the accused then urged that even if the law did not require that the Advocate‑General should be in charge of the prosecution in all trials held by the High Court, I should direct that officer to undertake the prosecution in the present case as I had done in the case relied upon by them. I have mentioned above the circum stances in which I had directed the Advocate‑General to undertake the prosecution in the case relied upon by the learned counsel for accused, and as the circumstances of the present case have not the slightest resemblance to the circumstances of the case relied upon, I do not see how I could replace t e counsel engaged by the complainant by the Advocate‑General' in a case of defamation which is so much the concern of the person defamed that section 198 of the Code of Criminal Procedure enjoins that the offence cannot be taken cognizance of by a Court . except on the complaint of the person aggrieved by it.

48. With regard to the trial by a jury, an application had been put in .by Mian Bashir Aiimad, counsel for Umar Qureshi accused, but arguments on the point were addressed both by Mian Bashir Ahmad and Mr. Muhammad Jafar, the former of whom was on that day the counsel for Umar Qureshi and the latter for Z. A. Suleri accused. In this connection my attention was drawn to section 267 of the Code of Criminal Procedure which says that all trials held before the High Court under Chapter XXIII, i.e., in those cases which have been committed for trial by Magistrates, shall be by jury and that all other trials before the High Court shall be by jury if so directed by the Court. In this connection another provision of the Code of Criminal Procedure is section 526, subsection (2) of which is to the effect that when the High Court withdraws for trial before itself any case from any Court it shall, except as provided in section 267, observe in such trial the same procedure which the Court from which the case was transferred would have observed if the case had not, been so withdrawn. Subsection (2) of section 526 of the Code of Criminal Procedure means that it is open to the High Court under section 267 of the Code of Criminal Procedure to direct that the trial of the case which the High Court has trans ferred to itself may be by a jury though the trial would not have been by jury if the case had remained in the Court from which it was transferred to the High Court. In the present case the trial could be held by a jury only if it were directed by me that it G should be so held. The learned counsel for the accused contended that an order to that effect should be passed because the accused want it to be passed. This argument I could not accept because the law gives the High Court the right to order whether or not the trial in a case which has been transferred to itself, shall be by a jury, and the wishes of neither of the parties to the case are binding on the High Court when determining how the trial should be held.

49. The learned counsel for the accused invoked the provi sions of Article 5 of our new Constitution in support of their prayer that the trial should be by jury. I do not see how the holding of the trial of the accused without a jury would contravene the provisions of Article 5 of the Constitution which says, inter alia, that all citizens are equal before the eye of law and entitled to equal protection of law. The Article does not mean that there should be precisely the same law for the trial of all cases tried by 1 a Court. The provisions of the Code of Criminal Procedure applicable to cases which though not ordinarily triable by that 'Court are transferred to it apply to all such cases and give that Court a discretion to direct that the trial be by jury or not and the fact that the Court has been given a discretion in the matter does not make the provisions of the Code void. I fail to see how trial by jury affords an accused person more protection than a trial without a jury, but at any rate Article 5 of the Constitution of the Islamic Republic of Pakistan does not have any application H to the matter. The view I take receives support from the decision of our Supreme Court in Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakist6n and another (P L D 1957 S C (Pak.)9), and the conten tion of the learned counsel for the accused could not be accepted.

50. I will now deal with the question whether or not the accused have been proved to have committed the offences they were charged with. The offence of defamation for which the accused have been tried is defined in section 499 of the Pakistan Penal Code, which reads as under :‑

"499. Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputa tion will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Explanation 1.‑It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is i tended to be hurtful to the feelings of his family or other near datives.

Explanation 2.‑It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.‑An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.‑No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

First Exception.‑It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception.‑It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception.‑It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

Fourth Exception.‑It is not defamation to publish a sub stantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation.‑A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception.‑It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Sixth Exception.‑It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further,

Explanation.‑A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Seventh Exception.‑It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Eighth Exception.‑It Is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject‑matter of the accusation.

Ninth Exception.‑It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.

Tenth Exception.‑It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good."

The first question to consider is whether the publication to which the case relates contained imputations harmful to the reputation of the complainant. A bare reading of the letter shows that its writer had given away the State of Bahawlpur to India for the reward that he expected to get for doing that. The person who gave the State away was a Muslim, and it could hardly be doubted that if a Muslim brought about for a reward to himself the accession to India of a State the border of which touched Pakistan and the majority of the population of which was Muslim, he was a man of a very depraved character who should not be trusted by Muslim not only of Pakistan but of any place. The learned counsel for the accused urged that the mere fact that it was alleged that Mian Mushtaq Ahmad Gurmani, the complainant, had persuaded the Amir to agree to the accession of Bahawalpur State to India could not defame the complainant because the accession may have been decided upon in what was believed to be in the best interests of its inhabitants. This argument is not open to the learned counsel for the accused because what was hinted at by the accused in their newspaper which contained a copy of the letter was that the accession to India had been brought about for sordid motives. It was also urged by the learned counsel for the accused that the complainant had led no evidence to show that his reputation had suffered by reason of the publication of the letter. This argument too has no force because the imputation is of such a character that it can be presumed that one who made it intended to harm l the reputation of the complainant. But even if one were to act on, the assumption‑an assumption not warranted by the facts that the imputation was not intended to lower the moral character of the complainant as well as his credit, no one can doubt that the, person who published the imputation knew and had reason to believe that he will harm the reputation of the complainant. No one can have any doubt that if it is said about a resident o Pakistan that he had for personal gain tried to give away Bahawalpur State to India it amounts to saying that he had tried .to stab Pakistan in the back, because it is clear that if Bah4walpur had not acceded to Pakistan, Pakistan would have been very adversely affected. I hold, therefore, that the letter Ex. P. 2, which was published in the Times of Karachi, on the 3rd of September 1957, was defamatory within the purview of section 499 of the Pakistan Penal Code, and the accused can escape liability for publishing, it only if they can bring the case within any of the exceptions.

51. On the merits of the case, the arguments of the learned counsel , for the two accused were not identical because Mr. Muhammad Jafar, the learned counsel for Umar Qureshi accused, did not agree with some of the contentions raised by Mr. Abdul Haq, the learned counsel for Z. A. Suleri accused. Both of them, however, relied on the First Exception to section 499 of the Pakistan Penal Code and urged that what was alleged was true and. as it was published for the public good it could not amount to defamation; I am prepared to agree with the learned counsel that if the imputation was true its publication was for public good because a man who had tried to do such harm to Pakistan as to deprive it of Bahawalpur deserves nothing but condemnation by every resident of Pakistan, and, therefore, one of the main questions to determine in order to come to the conclusion whether the First Exception to section 499 of the Pakistan Penal Code has application is to see, whether it is established that the imputation was true.

52. The evidence on the record shows that what was published by the Times of Karachi on the 3rd of September 1957 .was based on a photostat copy. Hakim Saif Ali (C. W. 3) produced Ex. C. W. 3/2 as the original of that photostat copy and I will, therefore, deal with the question whether or not it has been established that Ex. C. W. 3/2 is the original of Ex. P. 2 and if it is whether or not it is in the handwriting of the complainant as it was alleged to be in the Times of Karachi dated the 3rd of' September 1957. But I might make it clear that even if I find that the original was not in the handwriting of the complainant but come to the conclusion that it was written at his instance, I will have no hesitation in giving the benefit of the First Exception to section 499 of the Pakistan Penal Code to the accused. As mentioned already, Hakim Saif Ali stated that Exs. C. W. 3/1 and C. W. 3/2 were handed over by Sardar Patel, to Mian Nizam‑ud‑Din and Hakim Saif Ali so that they may be used to convince the Gujjars of Kashmir that Sardar Patel had no interest in Kashmir. I cannot bring myself to believe that Sardar Patel‑did the very unusual act of handing over two impor tant State documents to persons unconnected with the Government of India. At any rate, I have arrived at the conclusion that what Hakim Saif Ali called the original of what appeared in Ex. P. 2 was not so. It is true that Ex. C. W. 3/2 bears a very great resemblance to Ex. P. 2 (the facsimile which appeared in the Times of Karachi) and Ex. D. 1 (photostat copy produced by Umar Qureshi accused) from which Ex. P. 2 was printed, but a careful, study of these three documents reveals that while Exts. P. 2 and D. 1 resemble each other in all respects they are different in some minor respects from Ex. C. W. 3/2. Some of the differences which I could discover by the use of a magnifying glass are as follows :‑

(i) The letter o' occurring in the word however' in the second line is differently shaped in Ex. C. W. 3/2 than in Ex. D 1 and Ex. P. 2.

(ii) The letter c' occurring in the word consider' in the same line is shaped differently in Ex. C. W. 3/2 than in Ex. D. 1 and Ex. P. 2.

(iii) The letter f' occurring in the word of', which is the last word in line 2, is differently written in Ex. C. W. 3/2 than in Ex. D. 1 and Ex. P. 2.

(iv) Dots after H' and ' E' of H. E.' with which the third line begins are placed at different places with regard to the letters in Ex. C. W. 3/2 than in Ex. D. I and Ex. P. 2.

(v) The E' of H. E.' in the third line is differently shaped in Ex. C. W. 3/2 than in Ex. D. 1 and Ex. P. 2.

(vi) In line 3 the full stop after the word accession' which is the last word in that line is placed much nearer the last letter of the word in Ex. C. W. 3/2 than in Ex. D. 1 and Ex. P. 2.

(vii) The letter d' with which the word indicated' which is the first word in the fifth line ends, is differently made in Ex. C. W. 3/2 than in Ex. D. 1 and Ex. P. 2.

(viii) In the fifth line the word previous' is not similarly written in the two documents. In Ex. C. W. 3/2 p' and r' are not joined to each other while in Ex. D. I and Ex. P. 2 they are joined. Moreover these two letters are differently shaped in the two documents.

(ix) The words and' and hope', which are the last but one and the last word respectively in line 6 of the letter are joined to each other in Ex. C. W. 3/2 while in Ex. D. 1 and Ex. P. 2 they are not joined ,with each other.

(x) The figure 8' occurring in the date 23‑8‑47' under the signature at the bottom of the letter is different in shape in Ex. C. W. 3/2 than in Ex. D. I and Ex. P. 2.

(xi) There is a water mark in Ex. D. 1 but Ex. C. W. 3/2 shows no water mark. That the water mark was on the original of Ex. D. I and not on the paper on which the photograph was made is clear from the fact that another copy of the photograph (Ex. D. W. 21/29) bears the same water mark at precisely the same place.

The above differences were detected by me a few days after Hakim Saif Ali (C. W. 3) had produced the documents Exs. C. W. 3/1 and C. W. 3/2 whereupon I directed that they should be framed so that they may not get spoilt by being handled and since then these two documents and Ex. D. 1 have remained in frames.

53. Lest it should be thought that I travelled outside my functions when I embarked on a careful examination of the documents mentioned in the last paragraph without calling in the assistance of an expert, I will make the position in law clear. It is the duty of the Court hearing a case to give a finding on all points that fall for determination keeping in view all the relevant evidence on the record and opinions of experts can be taken if produced by the parties or considered necessary by the Court provided opinion is relevant. But it is not on all points relating to documents that expert evidence is necessary or desirable. The question whether or not one document is a photograph of the other is not one of science or art or handwriting or finger prints and, therefore, if the Court tries to decide that question without the aid of an expert it does not contravene any provision of law or the rule laid down in some decisions that a Court should not take upon itself the functions of a handwriting expert: Whether or not a document is a photograph of another is a matter which does not require special training or skill to find out and section 45 of the Evidence Act is not attracted: But I might mention that Mr. Appel, who was produced as a handwriting expert by the accused, agreed with the view that I have expressed. above with regard to the letter Ex. C. W. 3/2 not being the original of Ex. D 1 and consequently not of Ex. P. 2. I asked him if it was not a fact that Ex. C. W. 3/2 was not the original of Ex. D. 1 and Ex. P. 2 and he replied in the affirmative. I then asked him if the difference between Ex. C. W. 3/2 and Ex. D. 1 was not but minor in character and he agreed. It is abundantly clear that Ex. C. W. 3/2 was not the document of which Ex. D. 1 was the photograph. No evidence has been led about the whereabouts of the original of Ex. D. 1 but the circumstances show that the original of Ex. D. I is no longer in .existence. The circumstances further show that Ex. C. W. 3/2 was prepared for the purposes of this case in the hope that it will not be scrutinized very carefully and will pass as the original of Ex. D. 1. On the 6th of January 1958 I had directed that Sardar Aman Ullah, who was stated by the accused to have given the photostat copy on Ex. P. 2 was based, be summoned as a Court witness and Sardar Aman Ullah (C. W. 2) admitted in his evidence that long before he came to Court he had learnt from reports in newspapers that he had been summoned as a witness. When it became clear to the person or persons responsible for having Ex. P. 2 published that the question about the original of Ex. D. 1 was about to be raised, Ex. C. W. 3/2 was created, and in order to give it an official and sinister look it was written on a paper which bore the inscription "Bahawalpur Govt. of Abasia" which inscription was, in my opinion, .prepared for the purposes of the present case.

54. In this connection the other circumstances of the case cannot be lost sight of. I have already said that it was on the 27th of August 1957 that Mian Mushtaq Ahmad Gurmani tendered his resignation from the Governorship of the Province of West Pakistan. One finds that on the, 28th of August 1957 Hakim Saif Ali' is at Karachi and from the fact that the receipt of the earliest date which he could produce showing his stay at a hotel in Karachi relates to the 28th of August 1957, it is clear that he was not there earlier though he says that he was. In view of this fact the contention of the learned counsel for the complainant that as soon as it was known that the complainant had resigned and was about to issue a statement giving reasons for his resig nation Saif Ali was summoned to Karachi by someone adversely disposed towards the complainant, cannot but be held to be weighty. Hakim Saif Ali says that he was actuated by his love for Pakistan to expose Mian Mushtaq Ahmad Gurmani and it made his blood boil because it appeared to him that Mian Mushtaq Ahmad Gurmani wanted to pose as a martyr. Hakim Saif Ali left Pakistan as soon as it was created and returned to it in May 1951, i.e., about four years after the country came into being. From his past conduct it is clear that it was not his love for Pakistan which prompted him to take any step in the matter. The story Saif Ali (C. W. 3) gives about the documents is, as I have already said, fantastic because I cannot bring myself to, believe that a responsible person, which a Minister of the Central Cabinet of any country should be presumed to be, will strew about important documents and hand them over to persons not connec ted with the Government. Hakim Saif All said that he had told Malik Feroze Khan Noon how he got the original of the photostat copy he gave to him and from the fact that Malik Feroze Khan Noon directed Sardar Aman Ullah to take the letter to the press it would follow that Mr, Noon had accepted the story of Hakim Saif Ali which appears fantastic to me. The fact, however, that someone else had believed a story cannot deprive me of my, right as a Judge to determine the truth or otherwise of the story. Moreover, the fact that the document Ex. C. W. 3/1, which is much more damaging to the reputation of the complainant than the document which the Times of Karachi published on the 3rd of September was not published on that date is not without significance. Hakim Saif Ali explains that the document Ex. C. W. 3/1 happened to have been left by him at Lahore and he just happened to have Ex. C. W. 3/2 in his possession. This statement is palpably false because if Hakim Saif Ali took the document Ex. C. W. 3/2 with him, I do not see why he should not have taken the other one also. The document Ex. C. W. 3/1 bears the date "4‑8‑47", Mian Mushtaq Ahmad Gurmani (P. W. 1) stated that on the 4th of August 1947 he was at Delhi because the Interim Governments for Pakistan and India had offices there on that date. There is no reason for not accepting this statement which is not challenged and the statement is corroborated by Mr. Fazal Karim (P. W. 2) and by the entries in the document Ex. P. W, 2/2 which he produced. Being at Delhi, Mian Mushtaq Ahmad Gurmani could have orally discussed the matters mentioned in Ex. C. W. 3/1 with the Indian Authorities and no necessity for writing the letter existed. The circumstances indicate clearly that Ex. C. W. 3/1 was prepared after the 3rd of September 1957 and this was done because the letter that was published in the press mentioned a previous letter.

55. Hakim Saif Ali stated that the documents Exs. C. W. 3/1 ,and C. W. 3/2 had been in his possession since the winter of 1949, but the first time the public saw it or one resembling it is the 'beginning of September 1957. Hakim Saif Al; would have it believed that he was too afraid of the complainant to have the courage to publish the document earlier but his evidence shows that he had not mentioned this document when he appeared before Mr. Justice Muhammad Munir, who was conducting an inquiry into the assassination of Khan Liaquat Ali Khan, which he would certainly have done if he had it with him at that time, because according to himself his statement was recorded in camera at his own request. Moreover, Mr. Zulqarnain (P. W. 3) has said in very clear terms that though Hakim Saif Ali was subjected to a pretty lengthy interrogation as he was suspected to be a spy and foreign agent he neither showed the documents Exs. C. W. 3/1 and C. W. 3/2 to him nor even mentioned that he had them in his possession. Hakim Saif Ali said that he had shown the documents to Talib Hussain (D. W. 15) who as Inspector of Police in the former North West Frontier Province investigated the case relating to the assassination of Khan Liaquat Ali Khan. Talib Husain D. W. does not support Hakim Saif Ali in this respect while the record prepared by Talib Husain on the 20th and 21st of February 1953, when Hakim Saif Ali made a statement before him, supports Talib Husain. Hakim Saif Ali, who has a glib tongue, when questioned by me to explain why the very lengthy statement he made before Talib Husain contains no mention of the documents Exs. C. W. 3/1 and C. W. 3/2, came out with the reply that though he had mentioned them to Talib Husain the police officer was afraid to keep them because Mian Mushtaq Ahmad Gurmani was in those days the Minister for the Interior. If Hakim Saif Ali is to be believed, the documents bore the signatures of Talib Husain. If those documents were signed by Talib Husain, it follows that at the time he signed them he had no fear in his mind. Talib Husain states that he went on taking down the statement of Hakim Saif Ali as he made it and if the documents had been produced before him and he had signed them one can think of no reason why he should not have mentioned them in the very detailed statement of Hakim Saif Ali. It is proved that Hakim Saif Ali produced four documents before Talib Husain (D. W. 15) on the 21st of February 1953. Those documents bear the signatures of Talib Husain who admits his signatures on them. It is very significant that the signatures of Talib Husain on those documents are in a different ink than the ink used for the signatures of Talib Husain on Exs. C. W. 3/1 and C. W. 3/2, and I have no doubt in my mind that the signatures of Talib Husain on these two documents are forgeries as brazen‑faced as the documents themselves. The signatures of Talib Husain may have been available to a number of persons but on this record it is proved that they were available to Hakim Saif Ali (C.iW. 3) who had with him the documents Exs. C. W. 3/33, C. W. 3/36, C. W. 3/37 and C. W. 3/38 which bore the signatures of Talib Husain and which having been taken into possession at the time the statement of Hakim Saif Ali on the 21st of February 1953 were handed by the police officer to him about a month later. Another circumstance which shows that the story told by Hakim Saif Ali as to how he came into possession of the documents is untrue is that nowhere in his lengthy statement to Talib Husain (D. W. 15) had he mentioned that lie had discussed the affairs of Kashmir with Sardar Patel. Moreover, I find that the plea that the police officer who recorded the statement of Hakim Saif Ali in February 1953 would not keep those documents with him because he was afraid of Mian Mushtaq Ahmad Gurmani is belied by the fact that the statement contains disparaging references to Khan Abdul Qayyum Khan, who was those days the Chief Minister of the N. W. F. Province, and who could very easily have access to the statements recorded during investigation by Talib Husain as was admitted by Tabil Husain himself. I cannot say if Hakim Saif Ali (C. W. 3) two of whose aliases are Charagh Ali and Chiragha is the renowned physician he claimed in his deposition to be, the detestable spy he admitted he had been suspected of being or the political stalwart he boasted he was, but on the material on the record, I do not find it difficult to hold that he has told lies in the witness‑box on a number of points which it will take long to detail.

56. The evidence of Kanwar Saadat Ullah (D. W, 16), however, supports the deposition of Hakim Saif Ali with regard to the documents produced by the latter in Court. The accused produced him as a witness but at the time of the arguments the learned counsel for the accused stated that they did not rely on his statement. I am not, however, bound by the opinion of the learned counsel for the accused with regard to the reliability of one of the witnesses produced by the accused and proceed to consider whether the statement of Kanwar Saadat Ullah can be accepted. Kanwar Saadat Ullah says that the documents were in possession of Hakim Saif Ali in August 1949. Kanwar Saadat Ullah is, as I have already mentioned, related to Malik Feroze Khan Noon, whose name had been mentioned in connection with this case from almost its beginning. Kanwar Saadat Ullah stated that he led the delegation that went from the Punjab (Pakistan) to Delhi in July or August 1949, to attend the Urs of Amir Khusro. No record of the names of the persons who went to attend the Urs of Amir Khusro in 1949 is available, and I am inclined to think that Kanwar Saadat Ullah and Hakim Saif Ali knew before the latter mentioned the name of the former when appearing as a witness in this Court that no records were available for the year 1949. It ii in the evidence of Muhammad Umar (C. W. 10) that Kanwar Saadat Ullah was one of the persons who went to Delhi to attend the Urs of Amir Khusro in 1950. I consider it very improbable that if he had gone to attend the Urs in the previous year, Kanwar Saadat Ullah would find it necessary to go in 1950 also. Both Kanwar Saadat Ullah and Hakim Saif Ali say that Kanwar Saadat Ullah saw Sardar Patel, nearabout the time that the document were shown to Kanwar Saadat Ullah by Hakim Saif Ali. The deposi tions of the two witnesses about the interview of Kanwar Saadat Ullah with Sardar Patel are discrepant. Kanwar Saadat Ullah says that Hakim Saif Ali was present at the interview, while Hakim Saif Ali says that he was not. Kanwar Saadat Ullah says Hakim Saif Ali accompanied him to the house of Sardar Patel while Hakim Saif Ali says he reached there five minutes after Kanwar Saadat Ullah. There is another fact which shows that the statement of Kanwar Saadat Ullah is not true and that is that in his deposition Hakim Saif Ali said that the documents had been given by Sardar Patel in the winter of 1949. From answers to certain questions, I asked him on the 10th of April 1958, it is clear that what Hakim Saif Ali meant by the winter of 1949 was what everybody would mean by that expression namely the months of November and December, and yet one finds that Kanwar Saadat Ullah claims to have seen those documents in the month of August 1949. I distinctly re‑remember the deathly pallor of the face of Kanwar Saadat Ullah when he was being cross‑examined by Mr. A. K. Brohi and I would not be astonished if I were to be told that the pallor was the result of belated pangs of conscience brought about by the realization that though an Advocate of this Court he was before one of its Judges. supporting a false story told by Hakim Saif Ali (C. W. 3). It was contended by Mr. Borhi, the learned counsel for the complainant, that Kanwar Saadat Ullah had come forward as a witness to support Hakim Saif Ali because be is related to Malik Feroze Khan Noon, and Raja Abdullah Khan, an elder brother of the Advocate, has been recently appointed to an Ambassadorial post. About the relationship there is certainly evidence on the record which I have already mentioned, but I am not prepared to agree with the learned counsel for the complainant on the second point. It is true that there is evidence that a brother of Kanwar Saadat Ullah has been or is about to be appointed an Ambassador for Pakistan to some country, but that does not necessarily mean that the appointment was a reward for the evidence that Kanwar Saadat Ullah would be giving. The appointment may have been made because of the merits of Raja Abdullah Khan, the brother of Kanwar Saadat Ullah, or it may be the result of what, if the relative of a lesser man had been appointed, would be termed nepotism, and it is clear that the evidence on the record is insufficient for holding that it was the price paid by Pakistan for the evidence given by Kanwar Saadat Ullah in an attempt to prevent blame attaching to Malik Feroze Khan Noon, the Prime Minister of Pakistan.

57. Mr. A. K..Brohi, the learned counsel for the complain ant, urged that Malik Feroze Khan Noon having removed restric tions from the movements of Hakim Saif Ali (C. W. 3), which had been imposed because he was suspected to be a spy, the two were not as unknown to each other as C. W. 3 said they were, and that both had acted in concert in the events which led to the publication of Ex, P. 2 in the Times of Karachi on the 3rd of September 1957. Though there is no evidence on the record about the date on which Malik Feroze Khan Noon took over as the Chief Minister of the Province which was known as the Punjab, but the Punjab Gazette, entries in which publication are to be presumed to be correct, shows that he did so about three months before the restrictions imposed on Hakim Saif Ali were removed. There is no clear evidence that Malik Feroze Khan Noon hail removed the restrictions from the movements of Hakim Saif Ali because the record containing that order was stated by Mr. Abdul Haq, Prosecuting Deputy Superintendent of Police, C. I. D.. (C. W. 4), to be missing. It is, however, clear from the statement of Mian Mumtaz Muhammad Daultana (C. W. 9) that as Chief Minister of the Punjab he had passed the order restricting the movements of Hakim Saif Ali who was suspected to be a spy and it may be safely presumed that the restrictions were removed by the Chief Minister of the Province; who, at the relevant time, was Malik Feroze Khan Noon. As, however, Malik Feroze Khan Noon is not a party to this case, it is not the province of this judgment to determine what part he took in the matter which is the subject of this trial, and I would not give a finding one way or the other on the contention of Mr. Brohi that Malik Feroze Khan Noor and Hakim Saif Ali acted in concert in the matter.

58. The accused produced (D. W. 21) Mr. Appel of the United States of America as a handwriting expert to establish that the original of the photostat copy on which Ex. P. 2, which appeared In the Times of Karachi of the 3rd of September 1957, was based, was in the handwriting of Mr. Fazal Karim (P. W. 2) who at, the relevant time was the Personal Assistant of Mian Mushtaq Ahmad Gurmani, the then Prime Minister of Bahawalpur State. It transpired from the evidence of Mr. Appel that on the 8th of March 1958, he had received in America' a copy of Ex. P. 2 and a photograph which purported to be of a writing of Mr. Fazal Karim, and had two days later given an opinion to one Mr. Frank Holmes. However, later on it came out that the assignment was given to the witness by the Pakistan Embassy in the United States of America. The witness gave a report on the 10th of March which is Ex. D. W. 21/28 oil the record. He arrived at Karachi on the 14th of April 1958, and the same day gave another report which is Ex P: W. 21/2. He produced a number of photographs to show that what he stated about the similarity of certain letters that occurred in Ex. P.2 with the same letters when they occurred in what purported to be the photograph of the handwriting of Mr. Fazal Karim, was correct. He said that his fee had been settled with him in the United States of America by the Pakistan Embassy. Though the witness had been brought to this country all the way from America, the learned counsel for the accused made but a passing reference to his deposition. This unexpected brevity may have been due to the fact that the learned counsel for the accused believed that as the witness had come from such a distant land I must have been convinced of the truth of his statement, or to the fact that they did not place that implicit reliance on his statement which they were in the beginning hoping to do. I have only the words of the witness to the effect that he is a handwriting expert of some eminence, and have no means of verifying his statement with regard to his qualifications. He said that amongst others he had appeared in the well‑known case of America relating to Lindbergh kidnapping, and that he had unearthed the guilty man by comparison of his handwriting with some documents. During arguments the learned counsel for the complainant pro duced the issue of the magazine "The Reader's Digest" for the month of July 1951 in which at pages 128 to 133 appears an article with regard to Dr. Souder in which it is stated that his most important role in the Lindbergh kidnapping case has never been told. The article goes on to say that when Bruno Haupt lnann was caught changing a ransom bill, it was Dr. Souder who proved that the arrested man had written the 50,000 dollar ransom note. According to the article, Dr. Souder probed through tons of documents including every available letter ever written to Colonel Lindbergh, Senator Morrow and their families. Relying on this article, Mr. A. K. Brohi wanted me to discard the statement of Mr. Appel who had claimed to be the person who had unravelled the mystery surrounding the identity of the kidnapper in Lindbergh case, but as what is stated in the Reader's Digest cannot be accepted as true, without further evidence, I am not prepared to accept this contention of Mr. Brohi.

59. I have said already that I have no means of verifying the claim of Mr. Appel (D. W. 21) that he is an expert on handwriting. But assuming that he is, I do not see how the defence can, on the basis of his statement, ask for a verdict that the original of Ex. P. 2 was written by Mr. Fazal Karim. It is well recognized by authors of books on hand‑writing including Osborn that newspaper prints are a very unsatisfactory basis for . arriving at the conclusion as to the handwriting of any person, and' it can hardly be doubted that this is so because a document which finds its way to a newspaper loses some characteristics of the handwriting of the scribe by the time it reaches there. But even if one were to overlook this infirmity in the evidence, all the evidence on the point that there is the opinion of Mr. Appel (D. W. 21) that the original of Ex. P. 2 was in the handwriting of Mr. Fazal Karim (P. W. 2). It is well settled that the opinion of a handwriting expert should be received with great caution and it should be borne in mind that however impartial an expert may be, he is likely to be unconsciously prejudiced in favour of the side that calls him and to this effect I need not cite judicial authorities of which there is an abundance both in our country and others. From the mere fact that an expert has said that a document was ,written by a certain person one will not be justified in arriving at the conclusion that the scribe was the person mentioned by the expert because before giving a finding to that effect the Court has to consider the entire evidence on the point. No other witness was produced by the defence to depose that he found any similarity between the handwriting of Mr. Fazal Karim (P. W. 2) and what appeared in the Times of Karachi on the 3rd of September 1957, though there must be scores of persons who know his handwriting. Mr. Fazal Karim denies that he wrote the original of Ex. P. 2 and though I am prepared to accept the contention of the learned counsel for the accused that even if he were the scribe, Mr. Fazal Karim would not admit it, I cannot hold that the evidence of Mr. Appel (D. W. 21) has established that the photograph from which Ex. P. 2 was prepared was that of a document which must have been in the handwriting of Mr. Fazal Karim (P. W. 2).

60. In this connection the most important circumstance is that Ex. C. W. 3/2 which Hakim Saif Ali claimed to be the original of Exs. D. 1 and P. 2 is not so, but very much resembles the documents which were stated by Hakim Saif Ali to be its photostat copies. It follows that a document resembling the original of Ex. D. 1 and Ex. P. 2 in almost all respects was created by some one. Where the original of Ex. D. 1 is, God alone knows, but if a person could create a document which bears the closest resemblance to Ex. D. 1, it can be safely presumed that he was the author of the original of Ex. D. 1 which original is, for some reasons, no longer available. Moreover, it is not without significance that Mr. Appel said that the handwriting of Mr. Fazal Karim in the document written by him in July 1957 resembled the handwriting in the document which must have been the original of Ex, D. 1 and, therefore, of Ex. P. 2 also,' but if the allegation of the defence with regard to the original of Exs. D. 1 and P. 2 be correct, that document must have been written ten years earlier and it is difficult to believe that in the N space of a decade the handwriting of Mr. Fazal Karim had undergone no change. In the circumstances emanating from the evidence on the record it is by no means rash to infer that the writing of Mr. Fazal Karim in 1957, was used by someone‑a forger of no mean calibre to produce the original of Exhs. D. 1 and P. 2. From the photographs which have been placed on the record by Mr. Appel and some which were proved by him, it appears that the characteristics of the handwriting of Mr. Fazal Karim with regard to the letters tin which emphasis was laid by Mr. Appel were not precisely the same in 1947 as they were ten years later. In view of all these facts, I have arrived at the conclusion that it is not possible to hold on the solitary statement of Mr. Appel (D. W. 21) that the original of Ex& D. 1 and P. 2 must have been in the handwriting of Mr. Fazal Karim.

61. While discussing the evidence of Mr. Appel (D. W. 21), Mr. A. K. Brohi commented on some circumstances relating to the expert evidence. One of these was that Raja Ahmad Ali, the Political Secretary of Malik Feroze Khan Noon, the present Prime Minister of Pakistan, had contacted Mr. Appel at Karachi when he arrived there and handed over to him a photograph exactly like Ex. D. 1. It is not known where Raja Ahmad Ali got that., photograph from but in view of the fact that it was admitted by Z. A. Suleri accused that he had not paid a cent towards the fee of Mr. Appel and Malik Feroze Khan Noon had arranged for the witness to appear in Court, it is by no means surprising that the Political Secretary of Malik Feroze Khan Noon contacted Mr. Appel. With regard to the payment of his fee to Mr. Appel, the comment of Mr. A. K. Brohi was that public money had been spent in order that the defence of the accused should be as formidable looking as possible. If public money has really been paid to Mr. Appel, the action is open to more severe condemnation than Mr. Brohi subjected it to, but as there is no proof on the record that the money paid to Mr. Appel was money of Pakistan and not that of the Prime Minister of that country, which according to public statements of people who ought to know is none too rich in dollars, I need say nothing more about the matter. The fact that according to the statement which Z. A. Suleri volunteered on the 30th of April 1958, Mr. Faiyyaz Ali, the Attorney‑General of Pakistan, was taking quite some interest in‑the defence evidence of the accused in the present case was also commented upon by Mr. A. K. Brohi. It would have been preferable that if the Warned Attorney‑General of Pakistan was for some reason interested in the accused he had openly come forward to defend him, but in view of the fact that it cannot be said what precisely the Attorney‑General did in connection with the case that criticism of Mr. A. K. Brohi too need not be critically examined.

62. It having been established beyond all doubt that Ex. C. W. 3/2 is not the original of Ex. D. 1 and Ex. P. 2, it is not necessary to determine in whose handwriting Ex. C. W. 3/2 was, but I might mention that I have no hesitation in accepting the deposition of Mian Mushtaq Ahmad Gurmani (P. W. 1) and Mr. Fazal Karim (P. W. 2) that it was not in the handwriting of either of them. Ex. D. 1, the photostat copy from which Ex. P. 2 was prepared, contains evidence that the original was a forgery. It will be noticed that in the letter published by the accused the title of the Amir of Bahawalpur is mentioned as H. E., (His Excellency) while in fact it was H. H. (His Highness). If Mian Mushtaq Ahmad Gurmani had been responsible for that letter, it is inconceivable that he could have, by sending a letter which contained such a patent error, hoped that anyone will accept it as genuine. It might well be asked why this mistake crept in and escaped the notice of the person who wrote the original of Ex. D. 1 and Ex. P. 2 and of those who took some part or other in having it published. I have mentioned in paragraph 54 that it is established that Hakim Saif Ali reached Karachi on the 28th of August 1957 and it appears to me that he thereafter, either of his own accord or on the bidding of someone, undertook the creation of a document which will deal a deadly blow to the reputation of Mian Mushtaq Ahmad Gurmani. After obtaining all requisite material for creation of that document, including, perhaps, a file containing the handwriting of Mr. Fazal Karim (P. W. 2); Hakim Saif Ali launched on his venture to produce a letter in a hand writing which could connect Mian Mushtaq Ahmad Gurmani with the letter. It appears that a sample of what he had to create had been given to Hakim Saif Ali who is not very literate in English and admitted only this much that he can sign his name only in that language. I am certain that Hakim Saif Ali would not have admitted his ability to sign his name in English had it not been for the fact that there was ample evidence of that fact available. Being but semiliterate in English, Saif Ali put down "H. E." instead of "H. H." probably because the writing he was copying out from was not clear on this point. The document prepared was defective bunt appears that it was believed that if it were not given to the press on the 2nd of September 1957 on which date Mian Mushtaq Ahmad Gurmani relinquished charge of the office of the Governor of the Province of West Pakistan, the labour in creating it would have been wasted and it became necessary to publish it despite the defect pointed out above. According to the deposition of Zamir Ahmad (P. W. 7) and Shamim Ahmad (P. W. 8), shortly before noon on the 2nd of September 1957 Malik Feroze Khan Noon had promised a bomb‑shell and P. W. 7 is clear that it had been conveyed by Malik Feroze Khan Noon (either by himself or by Sardar Aman Ullah on his behalf) that the bomb‑shell was in the shape of a photostat. copy of a political document as is evident from what appeared in the newspaper Dawn dated the 3rd of September 1957 as the. news item Ex. C. W. 2/2 contributed by Zamir Ahmad (P. W. 7). If Hakim Saif Ali (C. W. 3) is to be believed when he says that he did not take the photostat copy of the letter to Malik Feroze Khan Noon till about 3 p.m. on the 2nd of September 1957 the statement of the Minister was prophetic because he knew three hours earlier that a photostat copy of a document was about to be brought to him that very day after about three hours. But as Malik Feroze Khan Noon has not had an opportunity of giving his version I need not dilate on what appears in evidence against him. The originals of Ex. D. I and Ex. P. 2 probably contained clear indications that it was written at Karachi and not at Bahawalpur and therefore it was destroyed and when it became necessary to produce the original of Ex. D. 1 and Ex. P. 2, Ex. C. W. 3/2 was created. Exhibit C. W. 3/2 is not the original of Ex. D. 1 and Ex. P. 2 but it appears that a photograph of that original was utilized to create the false document Ex. C. W. 3/2.

63. The learned counsel for the accused urged that even if the letter to the facsimile of which the case relates was not genuine, the evidence on the record established that the allegation that Mian Mushtaq Ahmad Gurmani had made an attempt to make Bahawalpur State accede to India was true, and, therefore, the accused committed no offence by publishing Ex. P. 2. The gist of the argument of Mr. Abdul Haq, the learned counsel for Z. A. Suleri accused, was that Malik Feroze Khan Noon had done nothing wrong because he accepted the word of Hakim Saif Ali, Sardar Aman Ullah had done nothing wrong because he carried out the orders of Malik Feroze Khan Noon, the two accused did nothing wrong because they accepted as genuine a document given by Sardar Aman Ullah and at any rate what the letter Ex. P. 2 alleged being true the accused had committed no offence in publishing the letter, while the gist of the arguments of Mr. Muhammad War, the learned counsel for Omar Qureshi, was that Malik Feroze Khan Noon and Hakim Saif Ali (C. W. 3) had conspired to defame Mian Mushtaq Ahmad Gurmani and the accused had been employed as agents but they were no more than innocent agents and did no more than trust the official source from which the documents on which the alleged defamatory letter was based had come and at any rate what was alleged in the letter was true. The oral evidence mainly relied upon by the learned counsel for the accused in support of their contention that it was true that Mian Mushtaq Ahmad Gurmani had tried to make Bahawalpur accede to India was the depositions of Mr. Shoaib Qureshi (D. W. 1), Col. A. S. B. Shah (D. W. 4) and Khwaja Nazim‑ud‑Din (C. W. 6). The manner in which Mr. Shoaib Qureshi and Col. A. S. B, Shah came to Pakistan was criticised by the learned counsel for. the complainant. He pointed out that on the 11 the of March 1958, I had declined to summon these two witnesses on the score that their names appeared to have been mentioned in the list of defence witnesses for the purposes of delaying the disposal of the case, and it was, he said, in order to make those witnesses available to the defence that a pretence was made that a conference of the Ambassadors of Pakistan in the Middle East was necessary and Mr. Shoaib Qureshi, Col. A. S. B. Shah and a number of others had been summoned to Karachi at public expense so that the case of the accused should not suffer. The circumstance that the conference was called only a few days after I had declined to issue summons to Mr. Shoaib Qureshi and Col. A. S. B. Shah, who were posted at distant places, does, no doubt, tend to show that the criticism of the learned counsel for the complainant is not baseless but as the point has not been gone into, I will not presume that the necessity for the conference did not exist and the real object of calling it was to help the accused. Mr. Shoaib Qureshi (D. W. 1) stated, as I have said in paragraph No, 23, that in the beginning of the year 1953 he had been shown a document by Mr. Tayyab ji, Joint Secretary of the States Department of the Government of India, which purported to be a letter written to Sardar Patel by Mian Mushtaq Ahmad Gurmani offering accession of Bahawalpur to India. He said that he had mentioned the matter to. Mr. Ghulam Muhammad, the then Governor‑General and Khwaja Nazim‑ud‑Din, the then Prime Minister of Pakistan. Khwaja Nazim‑ud‑Din, who was examined as the 6th Court witness, said that he did not remember if Mr. Shoaib Qureshi had told him that he had been shown a document whereby Mian Mushtaq Ahmad Gurmani had offered the accession of Bahawalpur to India and I have no doubt in my mind that if Khwaja Nazim‑ud‑Din had been told by Mr. Shoaib Qureshi that he had seen a document of that nature Khwaja Nazim‑ud- Din would not have forgotten having received that information. Khwaja Nazim‑ud‑Din did not support Mr. Shoaib Qureshi in the vital parts of the latter's statement and it appears to me that it was the knowledge that he would not do so that induced the accused to give up Khwaja Nazim‑ud‑Din as a defence witness. It is not without significance that at no stage did Mr. Shoaib Qureshi write either himself or through his office even a single word to the effect that Mr. Tayyabji had threatened to expose Mian Mushtaq Ahmad Gurmani by pub lishing a letter of his which had offered the accession of Bahawalpur to India. Mr. Shoaib Qureshi explained this omission by saying that he did not want to put this down in writing because some persons employed in his office at Delhi were of Indian origin and he was afraid that the information may leak out. No fear of leakage should have existed because the leakage would have been in India where, if Mr. Shoaib Qureshi is to be believed, the document itself existed. But that is not all. If there was a document in India with regard to the accession of Bahawalpur to India, it must have been the second one on the subject because Hakim Saif Ali (C. W. 3) claims to have got one from Sardar Patel. I am not prepared to believe that like the hydra the letter of Mian Mushtaq Ahmad Gurmani with regard to the accession of Bahawalpur to India was gifted with the property of producing another head as soon as one was cut off. Moreover, the documentary evidence on the record gives a lie to the deposition of Mr. Shoaib Qureshi. I have men tioned in paragraph 25 that India, through her High Commis sioner at Karachi, had sent a protest to the Foreign Office at Karachi with regard to the speech made by Mian Mushtaq Ahmad Gurmani in the Constituent Assembly (Legislature) of Pakistan on the 17th of November 1952. In the protest dated the 15th of January 1953,. there is not a single word to suggest that Mian Mushtaq Ahmad Gurmani had offered the accession of Bahawalpur State to India, and all that was said therein was that a stand‑still agreement was offered but was not entered into by India as it was known that because of its geographical position Bahawalpur would accede to Pakistan and not to India. In the face of the clear words of the letter of protest written by India, I cannot bring myself to believe that the case put before Mr. Shoaib Quraishi was that Mian Mushtaq Ahmad Gurmani had offered the accession of Bahawalpur to India. I am certain that if Mr. Shoaib Qureshi had not known that Mr. Tayyabji cannot be summoned as a witness he would not have made the statement he did. It will be noticed that in the last letter sent by the Government of Pakistan, Foreign Depart ment, to the High Commissioner for India, on the question of the protest raised to the speech of Mian Mushtaq Ahmad Gurmani, it was clearly mentioned that he had asked for a stand‑still agreement with regard to seven subjects mentioned in that letter and after that no communication contradicting that assertion was sent by India. That a stand‑still agreement with regard to only seven subjects mentioned in the letter dated the 16th of March 1953, which has been reproduced in para graph 25, was asked for is also clear from Ex. P. 6, the D. O. letter No. 185‑C dated the 14th of August 1947, which Mian Mushtaq Ahmad Gurmani sent to Mr. Desai, I. C. S., Secretary of the States Department, Government of India, and which has been reproduced in paragraph 20. It was pointed out by the learned counsel for both the accused that the file relating to the protest contained notes which showed that India had held out a threat of exposing Mian Mushtaq Ahmad Gurmani. I have found no letter in the relevant file which contained any such threat. There is a letter in the protest file which was sent by Mr. Attal, Deputy High Commissioner for India at Karachi, on the 7th February 1953 and reads as follows:‑

"D. O. No. 2‑DHC, 53, Gen. February 7, 1953.

My dear Akhtar Hussain,

Kindly refer to our Note No. 2‑DHC. 53, Gen. dated 15th January 1953 and your Ministry's acknowledgment No. D. 263 1(1)/53, dated 17th January 1953.

We shall be grateful if you will kindly let us have an early reply to our Note. Unless the Hon'ble Mr. Gurmani sub stantiates his statement, the Government of India would be obliged to issue a contradiction of his statement. But we would like to wait for your reply for another week.

Kind regards,

Yours sincerely,

(Sd.) J. K. Atal."

This letter appears on page 3 of the file and while describing it as "fresh receipt No. 3" someone in the Foreign Office Karachi made a note that it contained a threat. This was a misreading of the letter and in view of the fact that there is no evidence of any threat to expose Mian Mushtaq Ahmad Gurmani, and only a disclaimer was hinted at, I do not see how it can be inferred that the Indian authorities had at any time held out a threat that they will expose Mian Mushtaq Ahmad Gurmani, as a person who had offered the accession of Bahawalpur to India. The official who spelt out a threat out of the correspondence relating to the protest made by India to the speech of Mian Mushtaq Ahmad Gurmani in the Pakistan Constituent Assembly (Legislature) on the 17th of November 1952 did not either know the meaning of the word "threat" or that of the word "disclaimer". Having considered the evidence of Mr. Shoaib Qureshi (D. W. 1) from all aspects and in the light of the documentary evidence on the record, I have arrived at the painful conclusion that Mr. Shoaib Qureshi had not told the truth when he said that Mr. Tyabji had threatened to expose Mian Mushtaq Ahmad Gurmani and had shown a document which purported to have been written by Mian Mushtaq Ahmad Gurmani offering the accession of Bahawalpur to India. It appears to me that Mr. Shoaib Qureshi (D. W. 1), the seventy‑year old Ambassador of Pakistan to Iraq, had departed from the truth because he knew that he held office during the pleasure of the President, and, therefore, tried to do something to ward off all criticism from Malik Feroze Khan Noon, who as Prime Minister and Foreign Minister of Pakistan, could do a good deal towards the exercise of the pleasure of the President with regard to the appointment which the witness held. I would have preferred to hold that the inaccuracy in the statement of Mr. Shoaib Qureshi was due to lapse of memory consequent on old age but the material on the record has compelled me to give the finding that his evidence was deliberately not true.

64. The statement made by Col. A. S. B. Shah on the 8th of April 1958, when he was recalled at the request of the accused, was very greatly relied upon by the learned counsel for the accused to support their contention that Mian Mushtaq Ahmad Gurmani was not willing that Bahawalpur should accede to Pakistan. It appears to me that the statement of Col. Shah cannot help the accused‑ Assuming for the sake of argument that what Khan Liaquat Ali Khan was stated by Col. Shah to have told him is admissible in evidence, under some provision of the Evidence Act, I do not see how the fact that it was mentioned by Khan Liaquat Ali Khan to Col. Shah that there was some hitch with regard to the accession of Bahawalpur to Pakistan could mean that Mian Mushtaq Ahmad Gurmani was in any manner responsible for it. The hitch may have been due to anything; it may have been due to disagreement with regard to the subjects on which accession was to be made, or about the contents of the instrument of accession. If Col. Shah had cared to ask Khan Liaquat Ali Khan what the hitch was and had deposed about it in clear terms one could perhaps have thought that the statement of Col. Shah helped the accused, but the Col. said that neither Khan Liaquat Ali Khan confided in him as to the nature of the hitch nor did he himself, before embarking on a journey to do away with that hitch, care to ask Khan Liaquat All Khan what the hitch was. I hold, therefore, that the statement of Col. A. S. B, Shah (P. W. 4) does not help the accused in any manner.

65. The statement of Sheikh Sadiq Hasan was also relied upon to prove the truth of the allegation contained in the letter published in the Times of Karachi dated the 3rd of September 1957. This statement has been reproduced in paragraph 29 and based as it was on rumours and nothing but rumours, I fail to see how it can prove the truth of what was said by the witness in the statement to the press on the 26th of May 1955. It was contended by the learned counsel for the accused that if the statement were incorrect, Mian Mushtaq Ahmad Gurmani would have taken action in Court against Sheikh Sadiq Hasan who, in his statement to the press on the 8th of June 1955, had challenged the complainant to do so. The complainant when questioned by the defence counsel on the point stated that he had not taken the matter to Court as he had considered it improper to take that action, when he himself happened to be the Governbr of the Province in which the case would proceed, and that in view of the fact that the Central Government had issued a contradiction of the statement of Sheikh Sadiq Hasan he did not consider it necessary to take any steps in the matter. One finds a number of objectionable statements made by people against those holding very high positions which are not made subjects of cases in Courts of law but the mere omission to take the matter to Court cannot be considered to be proof of the truth of the allegations made. The statement of Sheikh Sadiq Hasan and the omission of the complainant to take any action against him cannot, therefore, help the accused. I might mention that it appears to me that the statement of Sheikh Sadiq Hasan had a lot to distinguish it from the publication of the letter which is the subject of the present case. Sheikh Sadiq Hasan had at least the moral courage to attack a man who was in power while what was done by publishing the letter on the 3rd of September 1957 was stabbing in the back of a man, who having been dealt a knock‑out blow, lay sprawling on the ground. Viewed from this angle the publication of the letter Ex. P. 2 when Mian Mushtaq Ahmad Gurmani had resigned the Governorship of the Province of West Pakistan offends against the standards of morality set up by most persons and it is unfortunate that the name of the Foreign Minister of Pakistan who is now its Prime Minister got associated with it.

66. Mr. Abdul Haq wanted an inference adverse to Mian Mushtaq Ahmad Gurmani to be drawn from the fact that he had, on the 14th of August 1947, undeniably offered a stand‑still agreement to India with regard to the following subjects :‑

(1) Currency and coinage.

(2) Extradition.

(3) Irrigation.

(4) Motor Vehicles.

(5) Opium.

(6) Relief from double income‑tax and arrangements relating thereto,

(7) Existing privileges and immunities enjoyed by the ruler.

This argument shows lack of knowledge about some of the relevant provisions of law. The Indian (Monetary System and Reserve Bank) Order, 1947, which was issued by Lord Mountbatten, the last Governor‑General of British India, on the 14th of August 1947, under the provisions of the Indian Independence Act provided, inter alia, that until the Pakistan Legislature otherwise provides the standard monetary unit of Pakistan shall be the India rupee and that the India notes shall be legal tender at any place in Pakistan till the 30th of September 1948 and the India rupee coin as well as India subsidiary coin shall be legal tender in Pakistan for at least one year after introduction of corresponding Pakistan coin. In the face of this Order, the agreement about coinage and currency offered by Mian Mushtaq Ahmad Gurmani on behalf of Bahawalpur to India cannot be viewed with that suspicion which Mr. Abdul Haq wanted to be employed. The Indian Independence (Miscellaneous Transitional Provisions) Order, 1947, which was issued by Lord Mountbatten on the 14th of August 1947 under the Indian Independence Act was to the effect that some Acts of which the Motor Vehicles Act, 1939 (IV of 1939) was one, were to have application in Pakistan and India till the 31st of March 1948, and reference to India in the Act as applicable to India was to be construed as including reference to Pakistan also, and reference to Pakistan in the Pakistan Act shall be construed as including reference to India also. The offer of stand‑still agreement, made by Mian Mushtaq Ahmad Gurmani, to India with regard to Motor Vehicles also had, therefore, not the sinister significance which Mr. Abdul Haq saw in it. What I have said above about the subjects dealt with above equally applies to relief from double income‑tax and arrangements relating thereto as is clear from the Indian Independence (Income‑tax Proceeding) Order, 1947, issued by Lord Mountbatten on the 12th of August 1947 under the Indian Independence Act, 1947. With regard to canal water Pakistan has still an agreement with India, and I do not see why suspicion should be entertained if Bahawalpur offered a stand‑still agree ment to India with regard to irrigation. The other matters in the letter offering a stand‑still agreement were unimportant and need not be considered. It is proved on the record that a copy of the letter (Ex. P. 6) which Mian Mushtaq Ahmad Gurmani sent to Mr. Desai, Joint Secretary to the Government of India, States Department, New Delhi, with regard to the stand‑still agreement discussed above was sent to the Foreign Secretary, Government of Pakistan, and Sardar Abdur Rab Nishter, the then Minister of Communications, Government of Pakistan, as is clear from the correspondence reproduced in paragraph 20, and if they saw nothing objectionable in the offer which was made under section 7 of the Indian Independence Act, 1947, no one has the right to use that offer against Mian Mushtaq Ahmad Gurmani more than‑ten years after.

67. It was next contended by the learned counsel for both the accused that the circumstance that the accession of Bhawalpur took place more than 21 months after Pakistan came into being proved conclusively that Mian Mushtaq Ahmad Gurmani was not in favour of Bahawalpur acceding to Pakistan and hence the delay in the accession of Bahawalpur to Pakistan. In his deposition Mian Mushtaq Ahmad Gurmani claimed that Bahawalpur was the first State to accede to Pakistan, and it appears to me that this claim is correct. I find from the book "Instruments of Accession and Schedules" published under the authority of the Pakistan Government that the Instruments of Accession of various States were executed on the dates mentioned against each in‑ the following table. Some States executed more than one Instrument of Accession and the dates in case of those States are of the first Instrument.

		Instrument of Accession
S.No.	State	Executed	Accepted
1.	Bhahawalpur.	3‑10‑1947.	5‑10‑1947.
2.	Khairpur.	3‑10‑1947.	5‑10‑1947.
3.	Kalat.	27‑3‑1948.	31‑3‑1948.
4.	Mikran.	17‑3‑1948.	17‑3‑1948.
5.	Las Bela.	7‑3‑1948.	17‑3‑1948.
6.	Kharan.	17‑3‑1948.	17‑3‑1948.
7.	Baluchistan States Union.	3‑11‑1952.	3‑11‑1952.
8.	Chitral.	6‑10‑1947.	18‑2‑1948.
9.	Amb.	31‑12‑1947.	31‑12‑1947.
10.	Dir.	8‑11‑1947.	8‑2‑1948.
11.	Swat	3‑11‑1947.	24‑11‑1947.

The learned counsel for the accused said that the States of Junagarh and Manvadar had acceded to Pakistan earlier than Bahawalpur and the claim of the complainant that Bahawalpur was the first State to accede to Pakistan was incorrect. The learned counsel for the accused failed to see the distinction between those two States and the other States that have been mentioned above, but even if there was no distinction between those two States and the Bahawalpur State, I fail to see how the fact 'that the Instrument of Accession of Junagarh was executed on the 14th of September 1947 and accepted on the 15th of September 1947, and that of Manavadar was executed on the 24th of September 1947 and accepted the same day, proves that Mushtaq Ahmad Gurmani had offered the accession of ,Bahawalpur State to India. The documentary evidence which has been detailed in paragraph 20 makes it crystal clear that the accession of Bahawalpur to Pakistan was decided upon at as early a date as possible after the 9th of 'September 1947 on which date the Pakistan Cabinet had passed a resolution that steps with regard to the accession of the States should be taken.

68. In this connection I might refer to the deposition of the Amir of Bahawalpur who appeared as the 9th witness for the defence. It is clear from his deposition that from the very beginning his idea was that the State would join Pakistan. This deposition is borne out by the circumstances amply proved on the record. It was stated by the Amir that he had attended the Inaugural Ceremony of Pakistan and this is borne out by the deposition of Sheikh Din Muhammad (D. W. 20). As the Amir considered it necessary to travel all the way from Europe to Karachi. to attend the Inaugural .Ceremony of Pakistan, I do not see how any suspicions with regard to his intention towards Pakistan are justified. The Amir said in. his deposition, which I see not the slightest reason for not accepting, that he returned to Pakistan in the end of September or the beginning of October 1947, and one finds that on the 3rd of October 1947, the Amir had executed the First Instrument of Accession in favour of Pakistan. The way the Amir acted makes it clear that only those could suspect his intention towards Pakistan who must suspect every thing on principle. Mr. Abdul Haq and Mr. Muhammad Jafar pointed to the language of the letter of Mr. Ikram Ullah, the then Foreign Secretary of Pakistan, dated the 3rd of October 1947, reproduced in paragraph 20, wherein that officer had said that the news that Bahawalpur and khairpur had decided to accede to Pakistan was very good. The learned counsel for the ac cused said that Mr. Ikram Ullah would not have expressed extreme pleasure on the news conveyed by Mian Mushtaq Ahmad Gurmani in his letter dated the 2nd of October 1947, if he had not been under the impression that the accession of Bahawalpur. State to Pakistan was a difficult matter. I confess that I did riot understand this contention at the time that it was made and have not been able to do so till now. What else Mr. Ikram Ullah should have said, I have not been able to find out' so far.

69. It was then contended that the State of Bahawalpur could have accused to Pakistan even before the 14th of August 1947 as some States had acceded to the Dominion of India. I do not know if any States accused to the Dominion of India before the 15th of August 1947, but I have no doubt in my mind that accession, if effected before the 14th of August 1947, would not have been valid, because it was only on the 14th of August 1947 that Pakistan came into being and accession could take place only when Pakistan had come into being and not earlier. Those who contend to the contrary overlook the provisions contained in section 6 of the Government of India Act, 1935, as adapted for Pakistan by the Pakistan (Provisional Constitution) Order, passed under the Indian Independence Act, 1947. Section 6 of the Government of India Act required that the Instrument of Accession became valid when accepted by the Governor‑General of Pakistan. Who would have accepted the Instrument of Accession of Bahawalpur to Pakistan if it had been executed before the 14th of August 1947, was not explained by the learned counsel for the accused. The position in law was, and this was made clear by the Quaid‑e‑Azam Muhammad Ali Jinnah as deposed by Sheikh Din Muhammad (D. W. 20), that the Ruler of a State could either remain independent or accede to one or the other Dominion into which British India had been divided on the 14th of August 1947. No question of the Ruler of a State acceding to Pakistan before it came into being. could arise.

70. Another weapon of offence as well as defence employed by the learned counsel for the accused was that some papers that were published in Bahawalpur were saving some time before October 1947 that. Bahawalpur should accede to Pakistan and this would not have been said it had been decided soon after Pakistan came into being, as was claimed by the Amir and Mian Mushtaq Ahmad Gurmani, that the State was to accede to Pakistan. This argument assumes that those connected with a newspaper know even the most confidential matters‑an assumption which I cannot bring myself to make. Moreover, the correspondents who gave those news are unknown and one cannot say who the author‑ of those news was and what his motive was.' If the accused wanted to rely on these news items, the person who were responsible for them should have been produced, as witnesses by the accused which was not done.

71. Another argument addressed by both the learned counsel for the accused was that General Iftikhar of the Pakistan Army had threatened Bahawalpur State with dire consequences if the State did not accede to Pakistan and it was because of that threat that the State acceded to Pakistan. There is no evidence with regard to the threat abovementioned, and the argument was based on an admission of Mian Mushtaq Ahmad Gurmani in cross‑examination that General Iftikhar had visited the State in the month of September 1947. Mian Mushtaq Ahmad Gurmani said that the object of the visit was the supervision of the arrangements for the protection of the railway and other Government installations as communal riots had broken out in Bahawalpur State in the second week of September 1947. That there were communal riots in Bahawalpur States nearabout that time is established by the telegram which Mian Mushtaq Ahmad Gurmani sent to Mr. Ikram Ullah on the 19th of September 1947 and which has been reproduced in paragraph 20. There is no evidence that General Iftikhar, who has been dead for years now, had threatened the State with dire consequences, but if he did so, it has to be presumed that he did it on his own because if any instructions had been given by the Central Government which instructions it can hardly be doubted were necessary if a military officer intended the invasion of the State‑it would have been very easy for the accused to have sent for those instructions as evidence in their defence. That General Iftikhar had not been instructed 'to threaten the State with dire con sequences by the Central Government is, in my opinion, established beyond all reasonable doubt by the letter which the Quaid‑e‑Azam Muhammad Ali Jinnah wrote to Mian Mushtaq Ahmad Gurmani on the 8th of October 1947. The letter, a copy of which is Ex. P. I 1 on the record, reads as follows :‑

"Government House,

Karachi.

No. 1601‑GG/47.

8th October 1947.

"Dear Mr. Gurmani,

I have received your letter of the 29th of September, and I thank you for it.

Please convey my very deep thanks to Alahazrat Jalalat‑ul Malik the Ameer of Bahawalpur for such handsome and spontaneous help at this critical moment by giving us a donation of rupees five lakhs. Not only that, but it heartens me very much that His Highness has started Bahawalpur's Muhajrin Relief and Rehabilitation Fund, and again I am thankful to him that he proposes that 50% of the collection of the Funds will be credited to the Quaid‑e‑Azam's Relief Fund and the balance will be spent for the relief and rehabili tation of Muhajrins within the State.

I have noted the very good work that Bahawalpur is doing for the Muhajrins from East Punjab. They need every sympathy and care and I am sure they would have hospitable treatment by His Highness and his State.

I am sure under your able guidance Bahawalpur State will set an example in doing all that is possible for it to do for our Muslim brethren in distress. We are going through a severe trial and facing testing times, and I feel confident that with the deep sympathy of His Highness and your efficient and able handling the Bahawalpur State will set an example to others.

Thanking His Highness and yourself again,

Yours sincerely,

(Sd.) M. A. Jinnah".

I cannot bring myself to believe that the wide‑awake man that the Founder of Pakistan was would have expressed confidence in Mian Mushtaq Ahmad Gurmani as he has done in his letter if he had known that the latter by planning to make Bhawalpur to accede to India had been intending to do incalculable harm to the newlya‑chieved Pakistan which the Quaid‑e‑Azam by his untiring efforts won for us and for which he had more love and affection than for any other thing animate or inanimate. Nor can I bring myself to believe that General Iftikhar, though a, General in the Army, could have undertaken or even threatened the invasion of Bahawalpur State without the knowledge of the Head of the State.

73. Here I might deal with another argument of the learned counsel for the accused. They said that the fact that the Amir on the advice of his Ministers, assumed the title of Amir Ala Hazrat and Jalalat‑ul‑Malak on the 22nd of August 1947 is clear proof of the fact that in the beginning the Amir and his Ministers had no intention of acceding to Pakistan. This argu ment is entirely without force. On the date when Pakistan came into being the suzerainty of the British Crown with regard to the Indian States and the Treaties of the British Crown with the States came to an end as was made clear by section 7 of the Indian Independence Act, 1947, and if the Amir assumed the titles to which objection is being taken by the learned counsel for the accused, I do not see what wrong he had done. In this connection it was urged by the learned counsel for the accused that some officials of the Pakistan Foreign Department, including Col. A. S. B. Shah (D. W. 4), who was the Joint Secretary in that Department, had objected to the assumption of new titles by the Amir which showed they were objectionable. It is true that objection was raised in the beginning of the year 1948 to the assumption of new titles by the Ruler, but it appears that the Foreign Secretary noted that no action was called for. In addition there is the fact that those who were raising objection to the Ruler of Bahawalpur having assumed titles of Amir, Alahazrat and Jalalat‑ul‑Malak appear to have been unaware of the fact that in his letter Ex. P. 11, which has been reproduced as in paragraph 72, the Quaid‑e‑Azam has used precisely these titles for the Nawab of Bahawalpur. If the Quaid‑e‑Azam, who in addition to being the Founder of Pakistan was its first Governor‑General also till his death, saw nothing improper in the titles, no one was entitled to object to them. Moreover the letter Mian Mushtaq Ahmad Gurmani had sent to Mr. Ikram Ullah on the 2nd of October 1947, which has been reproduced in paragraph 20, described the Ruler as the Amir, Ala‑Hazrat, and Jalalat‑ul‑Malak. If there were any sinister significance in those titles, I am certain that Mian Mushtaq Ahmad Gurmani would not have used them in the letter sent to Mr. Ikram Ullah whereby he assured him that the Ruler would probably within a day or two agree to the accession of the State of Pakistan after he had met his Cabinet and discussed the matter. The new titles were assumed on the 22nd of August 1947 and the fact was given publicity to. The Farman of the Ruler of Bahawalpur whereby he assumed the new titles is reproduced as Ex. P. 16 and Ex. P. 17 in the Bahawalpur Gazette. The last few sentences of the Farman read as follows :

"The question of our future association and collaboration with our neighbours has also been engaging my attention. It is my earnest desire that the relations of my State with her great neighbours should continue to be most friendly and cordial. I have after due consideration decided that in view of geographical position of my State and the culture, and economic affinities with the Pakistan Dominion, my repre sentatives should participate in the labours and deliberations of the Pakistan Constituent Assembly with the object of assisting in the framing of a Constitution which will provide for close and intimate relations between my State and the Dominion of Pakistan and which will enable the two States to arrive at satisfactory constitutional arrangements with regard to certain important matters of common concern".

What has been reproduced above from the Farman is so unequi vocally pro‑Pakistan that the assumption of new titles by the Nawab of Bahawalpur cannot be looked at as proof of anti Pakistan views. I might mention that the public declaration of the Ruler of Bahawalpur in favour of Pakistan would show that the letter to which this case relates was a forgery. The statement of the Amir received wide publicity and if Mian Mushtaq Ahmad Gurmani wrote the original of Exh. P. 2 he must be a vary opti mistic man to expect that in spite of the pro‑Pakistan views expressed by the Amir, Sardar Patel of India will believe that the Amir had been, within one day of that statement, persuaded by his Prime Minister to agree that the Bahawalpur State should accede to Pakistan. But if assumption of titles meant aversion to acces sion it is no proof that aversion was to accession to Pakistan and not to India.

73. The only other evidence on which the learned counsel for the accused relied was the statement of Sheikh Din Muhammad (D. W. 20) to the effect that Mian Mushtaq Ahmad Gurmani had told him on the 12th of August 1947 that when the question of the accession of the State comes to be decided, economic factors would be one of the considerations to be borne in mind. Reliance was also placed on a copy of a letter which Mian Mushtaq Ahmad Gurmani wrote to Chaudhri Zafarullah Khan, who represented Pakistan and. Bahawalpur before the Punjab Boundary Commission of which Sheikh Din Muhammad, who was those days the Chief Justice of Bahawalpur State, was one of the Muslim Members, and which letter was produced by the witness on the 24th of April A, 1958 when he appeared in Court the second time. Mian Mushtaq Ahmad Gurmani denied having made the statement ascribed to him by Sheikh Din Muhammad (D. W. 20), but in view of the fact that the statement, even if made, cannot prove that Mian Mushtaq Ahmad Gurmani had pro‑India tendencies on the 12^th of August 1947 because it is not clear whether accession to Pakistan or to India was believed by Mian Mushtaq Ahmad Gurmani on the 12th of August 1947 to be more beneficial econo mically to Bahawalpur State, I need not determine the question which of the two irreconcilable assertions was correct. As regards the letter (Exh. D. W. 20/6‑A) it is no doubt stated therein that Bahawalpur was not interested in the communal wranglings between the Muslim League, Congress and the Sikhs, but it should be borne in mind that the letter was written after Mian Mushtaq Ahmad Gurmani had been informed that the Boundary Commission had refused to allow Bahawalpur case to be presented separately on the ground that the party whose case Bahawalpur supported should give time to Bahawalpur out of its own quota. In these circumstances the letter has no ominous significance. It is clear from the documentary evidence on the record and the statement of Mian Mushtaq Ahmad Gurmani (P. W. 1) that the Bahawalpur case as presented before the Punjab Boundary Commission was pro‑Pakistan. The learned counsel for the accused admitted that it was so but they contended that Mian Mushmq Ahmad Gurmani changed his mind when he learnt that the award of the Boundary Commission was not as favourable to Pakistan as it had been expected to be. The contention has no force because in the policy speech delivered by Mian Mushtaq‑Ahmad Gurmani on the 18th of August 1947, which has been reproduced in the Bahawalpur Gazette as Exh. P. 15, highly pro‑Pakistan views were expressed and that speech he made after the award of the Boundary Commis sion had been announced on the 17th ,of August 1947 as is clear from the Gazette of Pakistan. While on the subject of the evidence given by Sheikh Din Muhammad '(D. W. 20) I might dispose of another matter: The learned counsel for the complainant confronted Sheikh .Din Muhammad with a letter, . a copy of which on the record is Exh. D. W. 20/1‑A, wherein something with regard to Bahawalpur postponing decision about its accession to one Dominion or the other was said. Sheikh Din Muhammad explained, that by writing that letter he meant that Bahawalpur should not announce its accession to Pakistan till the award of the Boundary Commission was formally announced‑‑ because if the announcement about accession were made earlier he might be accused of having divulged information which had come to him as Member of the Punjab Boundary Commission, and I have no hesitation in accepting that interpretation of the letter. No other evidence was relied upon by the learned counsel for the accused, and as I have arrived at the conclusion that no other evidence on the record can be of assistance for determining the fact in issue in the case, I need not refer, in this connection, to the other, evidence on the record. 74. In view of what I have said above., I have arrived at the conclusion that in the presence of the documentary evidence of unimpeachable character which has been produced before me almost entirely from records in possession of the Pakistan Central Government, it cannot but be held that Mian Mushtaq Ahmad Gurmani had, as mentioned in the Press Note issued by the Central Government on the 28th of May 1955, which has been reproduced in paragraph 29, done all that he could towards the accession of Bahawalpur State to Pakistan. It is further proved that Mian Mushtaq Ahmad Gurmani had taken quite a prominent part with regard to the accession of Khairpur State to Pakistan and from the evidence on the record it appears that it was he who succeeded in bringing about the accession of Khairpur State at an early date, after the letter issued by the Foreign Secretary, Government of Pakistan, to the President of the Council of Regency, Kairpur State, on the 23rd of September 1947, which has been mentioned in paragraph 21, had remained unanswered for quite some days. The documentary evidence relied upon by the accused to show that Mian Mushtaq Ahmad Gurmani had offered the Accession of Bahawalpur State to India consists of documents which are palpably forged and the oral evidence produced by them being either false or entirely worthless, that evidence on the point cannot but be rejected. It follows, therefore, that the allegations made against Mian Mushtaq Ahmad Gurmani in Ex. P: 2 were not true.

75. I will now consider the question whether there is any substance in the contention of the learned counsel for the accused that even if it were not established that there was any truth in the allegation that Mian Mushtaq Ahmad Gurmani had tried to make Bahawalpur State accede to India, the accused cannot be held guilty because acting in good faith they believed that what was handed over to them was a photostat copy of a letter which Mian Mushtaq Ahmad Gurmani had sent to Sardar Patel in the year 1947. It was contended by Mr. A. K. Brohi, learned counsel for the complainant, that before the accused could take advantage of the First Exception to section 499 of the Pakistan Penal Code, they must establish that what was published was true and if the truth of the allegation were not proved, the fact that they acted in good faith is immaterial, and in this connection he relied on a decision of the Calcutta High Court reported as Lalmohan Singh v. The King (A I R 1950 Cal. 339) wherein it was laid down that if the truth of an allegation is not proved, Exception First to section 499 of the Penal Code has no application. There is much to be said in favour the view taken by Harries C. J. who decided the above‑cited ca 'but it appears to me that the provisions of the Penal Code, with regard to the general exceptions, were not considered by the learned Chief Justice. Section 6 of the Pakistan Penal Code is in the following terms :‑

"Throughout this Code every definition of an offence, every penal provision and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the chapter entitled General Exceptions', though those exceptions are not repeated in such definition, penal provi sion or illustration". and I am of the view that even if the accused have not been able to prove that the allegations published in the Times of Karachi dated the 3rd of September 1957 were true they may yet escape liability if they can establish that any of the general exceptions mentioned in the Pakistan Penal Code was applicable to the case. Though neither of athe learned counsel for the accused made any reference to it during arguments, I am of the view that in a prop.‑r case section 79 of the Pakistan Penal Code could be invoked by an accused person to make ‑ the exceptions to section 499 of the Pakistan Penal Code applicable. Section 79 of the Pakistan Penal Code reads as follows:‑

"Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified bylaw, in doing it".

It appears to me that if the accused in the present case can establish that what they published was in good faith believed by them to be true section 79 of the Pakistan Penal Code will be attracted and they could escape liability. If an allegation is true its publication will not be defamation in spite of the fact that it is intended to harm the reputation of the person against whom the imputa tion is made provided the publication is for the public good. If, however, the imputation is not true but is believed in good faith to be true the publication is for public good: section 79 of the Pakistan Penal Code read with First Exception to section 499 of that Code will come to the rescue of the accused. The question to consider, therefore, is whether the accused in good faith believed that the letter Ex. P. 2, which is proved not to have been written or sent by Mian Mushtaq Ahmad Gurmani, was written or sent by him. The Pakistan Penal Code in its 52nd section says that nothing is said to be done or believed in "good faith" which is done or believed without due care and attention, while the 7th section of the Code, which occurs in Chapter 2 of that Code as does section 52, says that every expression which is explained in any part of the Code is used in every part of the Code in conformity with the explanation. When these two sections are read together, it follows that what is said about "good faith" in section 52 will have application wherever the expression "good faith" occurs in any provision of the Pakistan Penal Code. It was, however, contended by Mr. Muhammad Jafar, the learned counsel for Omar Qureshi accused,' and his argument was adopted I by Mr. Abdul Haq, the learned counsel for Z. A. Suleri accused, that as section 52 of the Pakistan Penal Code did not contain a definition of the expression "good faith" but only said What was not to be considered to be believed or done in the good faith ; the definition of that expression contained in section 3 (20) of the General Clause Act (X of 1897) which is to the effect that a thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negli gently or hot should be applied to the expression "good faith" wherever it occurs in the Pakistan Penal Code. The contention is, in my opinion, entirely without force. The definitions in the General Clauses Act are to apply to all Central Acts made after the commencement of the General Clauses Act only if there is nothing repugnant in the subject or context as is clearly mentioned in the beginning of section 3 which contains definitions. The Pakistan Penal Code became law in 1860, and, therefore, the definitions given in section 3 of the General Clauses Act (X of 1897) can have no application to it. It follows, therefore, that the accused can succeed on the basis of good faith only if they can establish that their "good faith" accords with the provisions con tained in section 52 of the Pakistan Penal Code.

76. The main circumstance relied upon by the learned counsel for the accused for establishing "good faith" of the accused was that the photostat copy on which they based the defamatory publication was given to them by Sardar Aman Ullah, who was an Information Officer in the Government of Pakistan. It was argued that the source was official and the accused accepted the document as authentic. The circumstances, however, show that though the document was given by Sardar Aman Ullah (C. W. 2) the accused did not take it to be an official communica tion nor did Sardar Aman Ullah give it as one. If it had been an official communication, it would have been issued to the press in the form of a communique, press note or a hand‑out which was not done, and I cannot believe that the accused were under the impression that what Sardar Aman Ullah was giving them came from an official source. 1f the accused had believed that Sardar Aman Ullah was acting in his official capacity, one would have expected to find it clearly mentioned in the paper which contained the defamatory letter that it had been supplied by an official source, but one finds that no such mention was made and in fact, as is clear from the publication in the Times of Karachi which has been reproduced in paragraph 2, the source was stated to be "The Times of Karachi Service". It was only when Mr. A. K. Brohi sent a notice to the accused, on behalf of Mian Mushtaq Ahmad Gurmani, to tender an apology for printing a forged letter which was defamatory that the accused in their newspaper dated the 7th of September 1957 said that the source from which they had received the copy of the letter was autho ritative. All acts done by an official are not his official acts, and the mere fact that Sardar Aman Ullah could, in, his official capa city, have given the photostat copy to Sultan Ahmad (P. W. 6) does not mean that the copy given in the present case was in that capacity. If the accused had believed that Sardar Aman Ullah was releasing a document officially they could not but have expected that it would appear in all the papers of Pakistan or at least those of Karachi and they would not have made the claim that it was exclusively. "The Times of Karabhi Service" which had unearthed the document because they would have known that the claim would stand exposed as other newspapers would publish the same letter. The circumstances detailed above prove conclusively that even at the time when the document was published by the accused it was not believed by them that it had come from an official source. I might explain what I have said above by taking an illustration. If I order a jailor orally to keep a man in con finement‑for two years and he does so, he cannot plead justification by saying that a Judge had ordered him to keep the man in confine ment because though the Judge may have told him to put the man in prison, it had not been said in a manner which is ordinarily employed for the purpose and my oral order will be no justification for the offence he had committed.

77. Relying on the statement of Sultan Ahmad (P.W. 6) to that effect it was contended by the learned counsel for the accused that Sardar Aman Ullah had 20 or 25 other copies like the one handed over to Sultan Ahmad (P. W. 6) and, therefore, the witness and the accused believed that the release of the document was official. I have mentioned already that if the release was believed to be official, there is no reason why it should not have been stated to be so, and at any rate I am not prepared to accept the statement of Sultan Ahmad (P. W. 6) in this regard as he is proved to have departed from the truth by resiling from his previous statement made before me on some points. If Sardar Aman Ullah had other copies of the defamatory letter with him on the 2nd of September 1957, I do not see why he did not make any attempt to contact any other paper. No one connected with any other paper was produced to depose that he had been contacted by Sardar Aman Ullah but had refused to publish the letter nor was any such question asked from Sardar Aman Ullah himself. I might add that I fail to comprehend how Sultan Ahmad could see that Sardar Aman Ullah had 20 or 25 copies of Ex. D. 1, because if Sardar Aman Ullah had really those copies with him, he would not expose each of them for Sultan Ahmad to see their contents. It is clear that Sultan Ahmad had not told the truth when he said that Sardar Aman Ullah had 20 or 25 copies of the document. In making that statement he had two objects in view. One was that he would be saving himself from liability for having taken part in the publication of the defamatory letter and the second was that he would be helping, the accused for whom it is manifest from his statement he had a soft corner evidently because of the fact that he had worked for the Times of Karachi for some years.

78. If the accused had cared to take proper care and use proper attention, they could have easily made inquiries to find out whether or not it was safe to believe that the letter, the photostat copy of which was given to them, was written by Mian Mushta Ahmad Gurmani. It is in evidence that Mian Mushtaq Ahmad Gurmani and Z. A. Suleri were not unknown to each other and the latter could have easily contacted' the former to find out whether the allegations in Ex. P. 2 were correct. Inquiries before publication were all the more necessary because the Central Government of Pakistan had on the 28th of May 1955 issued a press note contradicting allegations of the kind which appeared in Ex. P. 2, and as wide publicity was given to that press note, the accused as journalists could not have been unaware of it and did not say in Court that they were. Z. A. Suleri accused himself addressing a few arguments after his counsel had finished said that while deciding the case I should keep in view the fact that a journalist if he gets a news has to be quick about its publication because otherwise the news becomes stale. But those considera tions had no application in the present case. If Mian Mushtaq Ahmad Gurmani had written the letter which is the subject of this case, he had done so ten years earlier, and I do not see how the news would have become staler if the accused had taken the precaution of finding out whether or not what was stated in Ex: P. 2 was correct. It was argued that because similar allega tions had been made against Mian Mushtaq Ahmad Gurmani by other persons the accused could not be said to have acted without due care and attention when they accepted the photostat copy as genuine. Reliance was placed in this connection on the fact that some newspapers had published similar allegations and also on the fact that Mr. Shoaib Qureshi had told Khwaja Nazim‑ud‑Din that Government of India had threatened to expose Mian Mushtaq Ahmad Gurmani. Before the accused can take advantage of these circumstances they had to prove that they knew them at the time of the publication of the defamatory letter. It is difficult to believe in the absence of evidence to that effect, of which evidence there is complete absence, that the accused before they published the defamatory letter knew what had been appearing in the papers that were published in Bahawalpur which, it is in evidence had but meagre circulation. As regards the statements of Sheikh Sadiq Hasan which appeared in the Pakistan Times of Lahore on the 27th of May 1955 and the 9th of June 1955, which have been dealt with in paragraph 29, the accused cannot, in the absence of evidence, which they did not care to produce, ask the Court to believe that they new about the statements of Sheikh Sadiq Hasan but not about the press note issued by the Central Government contradicting the statement of Sheikh Sadiq Hasan on the 28th of May 1955. As far as reliance on the statement of Mr. Shoaib Qureshi (D. W. 1) to Khwaja Nazim‑ud‑Din (C. W. 6) is concerned, I am of the view that as there is no evidence that the accused knew what had transpired confidentially between a Prime Minister of Pakistan and a High Commissioner for Pakistan in India, it must be presumed that the accused knew nothing at all about that confidential communication. Neither of the accused said in any of their many statements of which one was in writing what information he had when he agreed to the publica tion of the letter Ex. P. 2. All that they pleased was that the source from which the letter came was official and they relied on it.

79. I will here deal with the argument of Mr. Abdul Haq, that as journalists the accused have to supply news to the people and, therefore, if they did not exercise that amount of care and caution which an ordinary man should, they should not be made to suffer because if the law were to be applied stringently to people connected with journalism the result may be that the people would be deprived of authentic nevus also. This argument cannot be accepted. The law draws no distinction in this respect between ordinary persons and those connected with journalism and it is clear that in law a journalist is bound to bestow the same amount of care and attention as any one else. From the commonsense point of view, it would appear that those who publish newspapers have to be more careful before publishing an imputation which on the face of it is defamatory because what a man says will be heard by a few while what appears in a news paper. will be read by very many. The mere fact, however, that a defamatory imputation published in 4 newspaper can do more harm does not require more care and attention from those who publish it than would be required if the imputation were given publicity by word of mouth or in any other manner.

80. Both the learned counsel for the accused had during their arguments placed reliance on Exceptions First, Third, Sixth, Ninth and Tenth to section 499 of the Pakistan Penal Code in support, of their contention that the accused were not guilty. I have disposed of the First Exception and will now deal with the others relied upon by the learned counsel for the accused. While dealing with First Exception to section 499 of the Pakistan Penal Code I have held that the accused did not act in good faith and that finding should be enough to dispose of the contention that the other Exceptions were applicable because each one of them will apply only if good faith exists. But it appears to me that the other Exceptions have no application to the facts of the present case. Exceptions Third and Sixth apply where opinion is ex pressed, which was not the case here. The Ninth and Tenth Exceptions are applicable only if good faith exists, which I have held was not the case here.

81. I will here dispose of another matter. Muhammad Nur‑ud‑Din (P. W. 10) said that though he had photographed a document for Hakim Saif Ali (C. W. 3), Ex. D. 1 (the photograph produced by Omar Qureshi accused) was not one of the photo graphs given by him to Hakim Saif Ali. This statement of Muhammad Nur‑ud‑Din (P. W. 10) appears to me to have been made to help Hakim Saif Ali (C. W. 3), whom the witness, according to the statement of Hakim Saif Ali, has known for years. By the time Muhammad Nur‑ud‑Din (P. W. 10) appeared in Court it had begun to appear to Hakim Saif Ali (C. W. 3) that Ex. C. W. 3/2 was not being accepted as the original of Ex. D. 1 and he could, therefore, try to confuse the issue as much as possible. I do not know how Muhammad Nur ud‑Din (P. W. 10) could say by just looking at Ex. D. 1 that it was not one of the photographs taken by him, but at any rate he did not take any one in confidence on that point. It is in the evidence of Hakim Saif Ali (C. W. 3) that the photostat copy was handed over to Sardar Aman Ullah (C. W. 2) at about 5 p.m. and it is established that Sultan Ahmad (P: W. 6) had been given the photostat copy by Sardar Aman Ullah at about 8 p.m. If Ex. D. 1 is not the copy handed over to Sardar Aman Ullah by Hakim Saif Ali, it will have to be assumed that either Sardar Aman Ullah had another document very much resembling Ex. C. W. 3/2 which he had had photographed and one copy of the photograph of that document had been handed over to Sultan Ahmad (P. W. 6) or that another document was prepared by Sardar Aman Ullah, or by some one at his instance, using Ex. C.W. 3/2 as a model and a photograph of the document thus prepared was given to Sultan Ahmad (P. W. 6). If the first assumption were acted upon, it will have to be assumed also that there were a number of documents purporting to be in the handwriting of Mian Mushtaq Ahmad Gurmani whereby accession of Bahawalpur to India had been offered‑a theory which cannot be accepted. As regards the second of the above assumptions, that too cannot be acted upon because the time at the disposal of Sardar Aman Ullah was so short that he could not have done all that was necessary to do. I am clear in my mind that when Muhammad Nur‑ud‑Din (P. W. 10), who admitted that he had photographed a document for Hakim Saif Ali (C. W. 3), said that Ex. D. 1 was not one of the photographs made by him, he was not telling the truth, but it is by no means unlikely that he made that statement to ward off all possibilities of his getting involved in the case relating to the publication of the defamatory letter or to help Hakim Saif Ali (C. W. 3) if possible.

82. The question that now arises is what offence or offences have been proved and against which of the accused. That both of the accused are guilty of defamation is beyond question. Omar Qureshi accused is proved to have contri buted the comments on the letter which were in themselves of a pretty objectionable character. Z. A. Suleri accused admitted in his statement on the 6th of January 1958 that the letter was published under his instructions, but even if he had not made that admission from which he tried to resile subsequently by almost imperceptible means, he would have been liable as the Editor‑in‑Chief of the Times of Karachi, because of the provisions contained in section 7 of the Press and Registration of Book:

Act (XXV of 1867). Both the accused were charged under sections 500 and 501 of the Pakistan Penal Code. About the application of section 500 to both of them there can be no doubt, but it appears to me that section 501 of the Pakistan, Penal Code, which makes printing or engraving of a defamatory matter punishable, has no application to the case of the two accused now before me, though it would have been applicable in the case of Khurshid Alam if he had been proved to have knowingly printed the defamatory letter. Consequently, while ac quitting both the accused of the offence under section 501 of the Pakistan Penal Code, I convict them of the offence under section 500 of the Pakistan Penal Code. As regards the sentence, I will deal with that question a little later after I have dealt with some other points of some importance.

[Paragraph 83 to 88 deleted from judgment by order of the supreme court dated 5^th July, 1958, in Criminal Appeal No. 38 of 1958 : Malik Feroz Khan Noon v . The State. (P L D 1958 S C (Pak.) 333)-Ed]

89. Some matter's connected with Hakim Saif Ali (C. W. 3) may now be taken up. I have indicated earlier that I am of the view that he told lies in the witness‑box on a number of points and that the documents Ex. C. W. 3/1 and Ex. C. W. 3/2 as well as the signatures of Talib Husain (D. W. 15) on these documents are forgeries. I consider it expedient in the interest of justice that Hakim Saif Ali (C. W. 3) should be tried for giving false evidence and for producing forged documents in Court.

Complaints signed by the Registrar of this Court should be lodged in the Court of the Additional District Magistrate, Lahore, for offences under sections 193 and 196 of the Pakistan Penal Code against Hakim Saif Ali (C. W. 3). The complaints for the offence under section 196 of the Pakistan Penal Code will be for P L D 1958 S C (Pak.) 333 the production as evidence in Court of the documents Ex. C. W. 3/1 and Ex. C. W. 3/2 which appear to be forged documents and appear to have forged signatures of Talib Husain (D. W. 15) who stated that, the documents had not been produced before him when, on the 20th and the 21st of February 1953, he recorded the statement of Hakim Saif Ali, Ex. C. W. 4/1, and these documents were not mentioned in the list, Ex. C. W. 4/ 1‑A. Complaints for offence under section 193 of the Pakistan Penal Code will relate to the following statements of Hakim Saif Ali, which, in my opinion, are false :‑

(1) When I came out of the jail after the detention period expired I showed Ex. C. W. 3/1 and Ex. C. W. 3/2 to Talib Husain, Inspector of Police. (Page 59 of the record‑statement dated the 15th February 1958).

(2) I had Ex. C. W. 3/2 photographed at Karachi by Nuru Bhoy who has a shop in Housing Society. (Page 63 of the record‑statement dated the 15th February 1958).

(3) It is wrong that the name of my father was Allah Ditta. (Page 83‑statement dated the 1st March 1958).

(4) It is wrong that the restrictions from my movements were removed by Malik Feroze Khan Noon. At the time the restrictions were removed, Malik Feroze Khan Noon was not the Chief Minister of Punjab, and, therefore, I say that the restrictions were not removed by him. Restrictions from me were removed before Malik Feroze Khan Noon became the Chief Minister of the Punjab. (Page 91‑statement dated the 1st March 1958).

(5) I have never travelled in an aeroplane in Pakistan. It is wrong that I travelled from Lahore to Karachi on the 6th of February with Raja Ahmad ‑Ali, Political Secretary of Malik Feroze Khan Noon, the Prime Minister. It is wrong that from the aerodrome at Karachi we drove in a staff car belonging to the Government to the City side. (Page 98‑statement dated the 1st March 1958).

(6) All the documents which I showed to Syed Talib Hussain, Inspector of Police, were signed by him in my presence. (Page 168‑statement dated the 12th March 1958).

There will be a separate complaint for each of the above offences. I do not want to hold a preliminary inquiry because if the complaints are made after that inquiry the case of Hakim Satff Ali will be prejudiced.

90. I pass on to the question of the sentence that should be passed on the accused. Some very learned persons have defined definition as the murder of a reputation of a person. Measured with the yardstick of that definition, the publication of the forged defamatory letter to which the case relates resulted in a massacre of reputations. It defames Mian Mushtaq Ahmad Gurmani. It defames the Amir of Bahawalpur because it makes him appear a man who had agreed to give away to India the Muslim State of Bahawalpur utterly disregarding the fact that the State had geographical, cultural and economic affinities with Pakistan. It defames the Governors‑General and Prime Ministers of Pakistan who had allowed Mian Mushtaq Ahmad Gurmani to hold high offices which, if the contents of the defamatory letter were true, depicts them as persons who were either so incompetent that in spite of so many means of getting information at their command they did not get information that Mian Mushtaq Ahmad Gurmani had had underhand dealings with India with regard to Bahawalpur or as so unmindful of the interests of Pakistan that they did not care to see whether the person they were placing in positions of extreme trust was deserving of that trust or not. As, however, none of the other persons who have been defamed by the publication of the forged letter has put in a complaint I can punish the accused only with regard to the defamation of the complainant. To depict a man as Mian Mushtaq Ahmad Gurmani was depicted in the defamatory letter is defamation of the worst type. No one will be safe if people who publish matters as defamatory as the forged letter in this case was are not dealt with as severely as they deserve. Consequently, under section 500 of the Pakistan Penal Code I sentence Z. A. Suleri accused to two years' simple imprisonment and a fine of Rs. 6,000/‑/‑, default of payment of which will entail further simple imprisonment for six months, and sentence Omar Qureshi accused to two years' simple imprisonment and a fine of Rs. 1,000/‑/‑, in default of payment of which he shall undergo further simple imprisonment for two months.

A. H. Accused convicted.

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