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Constitutional Petition No.32 of 1968, decided on 30th April, 1968.

---S. 5(1)(5)--Constitution of Pakistan (1962), Art.98--Order passed under S.5(1) placing restrictions on petitioner (a) that he will reside within the limits of his village and (b) that he will abstain and refrain from associating directly or indirectly with activities of some organisations and refrain and abstain from making speeches at any gathering, writing and publishing any article calculated to prejudice public safety or disturb public order or threaten public interest-- Grounds on which order was founded related - to past activities of petitioner regarding his prejudicial activities by writing, making speeches and by other means inciting one group of persons against the other leading to disturbance particularly students riots Certain book written by petitioner found replete with material injurious to feelings of people of the country--Feelings of an individual when reduced into writing and are calculated to injure the feelings of others are not permitted in law to be expressed despite guarantee regarding freedom of expression given under the Constitution Organization of a Body by petitioner as a cover for getting a plat from for making speeches of objectionable type--Material available with Government was sufficient for reaching a conclusion for purpose of passing the impugned order--Held, S.5(1) of Ordinance merely envisaged satisfaction of Government or District Magistrate with a view to preventing a person from acting in any manner prejudicial to public safety or public interest or maintenance of public order Such satisfaction has to be subjective and not to be scrutinized by application of standards which were applied for judging evidence before a Court of law--Impugned order or its extension for three months did not call for any interference--Order extending period of restrictions having already been communicated to petitioner, he might, if so desired, make a representation to Government against the same--Petition sound to be without any force and dismissed with costs.

A.K. Brohi and Azizullah Shaikh for Petitioner.

Kazi Akhtar Ahmad, Addl. A.-G. for Respondent.

Dates of hearing: 19th March and 4th April, 1968.

.--This petition under article 98 of the Constitution has been filed by Mr. Ghulam Murtaza Shah commonly known as G.M. Syed with a view to challenge the order passed against him on the 12th of December, 1967 under section 5(1) of the West Pakistan Maintenance of Public Order Ordinance 1960, placing the following restrictions on him:

(a) that he will reside within the limits of his village Sann, Taluka Kdtri, District Dadu, and

(b) that he will abstain and refrain directly or indirectly from associating with the activities of Bazm Soofian-e-Sind Adabi Sangat and shall also refrain and abstain from delivering speeches at any gathering, writing and publishing any article which are calculated to prejudice the public safety or disturb the public order or threaten the public interest.

The above order was to remain in force for a period three months from the date of service on the petitioner. The relief claimed in the petition is that this order should be declared without lawful authority and set aside. The relief has also been claimed for removal of restraints put on the freedom of movement of the petitioner.

2. The learned counsel for the petitioner has pressed this petition mainly on the question of mala fides. The argument messed into service is that the Government is against the petitioner because he has opposed One Unit and as such Govt. is time and again passing orders maliciously with a view to keep his activities controlled. The learned counsel has also argued that the Government have passed several orders putting restrictions of the type mentioned in the impugned order, each one being operative only for a period of three months. According to the learned counsel, the Government have done this deliberately with a view to prevent the petitioner from approaching this Court for redress in getting the orders passed by her set aside. He has placed before us the dates on which the orders were ... ... ... ... ... ... ... ... ... ... ... ... ... ... rescinded by the Government on the 10th November, 1967 for which D.O. No.8-4-H SpC-1/59 dated 10th November,:1967 from the Home Secretary was written to the petitioner. The petitioner disputed the grounds on which the order passed against him on 14th October, 1967 had been rescinded in his letter, dated 28th November, 1967. It is thereafter that the impugned order dated the 12th December, 1967 was passed. This order also being for three months died its death on the 11th of March, 1968. A fresh order was consequently passed on the 12th of March, 1968 for a further period of three months which is alleged to have been served on the petitioner on the 13th of March, 1968. This fresh order has to remain in operation again for three months.

3. The contention of the learned counsel for the petitioner as we have already said for imputing mala fides against the authorities passing the orders, is that the orders are deliberately passed for short periods of three months although an order could be passed for a period of two years at one time under S.5(6) of the Ordinance. This, according to the learned counsel, is being done because the authorities passing the orders do not want the petitioner to get redress from this Court. The learned Additional Advocate-General, on the other hand, submitted that the orders had been repeatedly passed for a period of three months merely because the authority passing the orders had no intention of continuing the restrictions on the petitioner in case an improvement in the attitude of the petitioner had been noticed. The order being for a short period of three months is a circumstance, according to the Additional Advocate-General, in favour of the petitioner and not against him. We have considered the arguments of the learned counsel appearing for both sides and we are of the view that the arguments on which the question of mala fides has been pressed into service are irrelevant for the purpose of this petition for establishing mala fides on the part of the authority passing the orders against the petitioner. It is not disputed that the authority passing the orders has the power to impose restrictions repeatedly for a period of three months. Therefore, malice cannot be established if a power conferred under law has been exercised. Some thing more than mere exercise of power is needed to establish malice or mala fides. The learned Additional Advocate General also argued that the orders were passed for a short period of three months because they disclosed different grounds at different times.

4. Apart from whatever happened in -the past, the impugned order was passed on the 12th of December, 1967 which expired on the 11th of March, 1968. Another order admittedly has been passed on the 12th March, 1968 which has been served on the petitioner on the 13th of March, 1968. This order, although it is a fresh one, mentions itself to be an extension of the previous order. This order, therefore, being an extension of the previous order admittedly is covered by the order passed on the 12th of December, 1967 and as such this order will, instead of rendering this petition infructuous, be covered by it.

5. We consequently propose to deal with the order passed against petitioner on merits. On this view of the matter, the grievance of the petitioner that he cannot get an order from this Court because the orders passed against him are for short periods, vanishes.

6. In order to consider the impugned order on merits, we feel it necessary to reproduce the grounds on which this order is founded. The grounds relate to the past activities of the petitioner regarding his prejudicial activities by writing, speeches and by other means inciting one group of persons against the other leading to disturbances particularly the students riots in the Districts of Dadu and Hyderabad. They also relate to the likelihood of the petitioner indulging in the prejudicial activities disturbing the public safety and maintenance ofl public order. These grounds are reproduced verbatim as under: -

"(1) That under the cover of Bazm-e-Soofian-e-Sind you are disseminating ideas and doctrines which have disturbed the maintenance of public order, prejudiced the public safety and injured the public interest.

(2) That you have written a book known as "Jadid Siayasat Ja Nau Ratan" published in June, 1967 in which you have expressed the ideas, details of which are given below which are prejudicial to public safety, maintenance of public order and public interest: -

(a) You praised the Congress Leaders who fought ruthlessly against the creation of Pakistan; such as Mr. M.K.Ghandhi, Mr. Jawahar Lai Nehru. Mr.Valab Bhai Patel and Mr. Abual Kalam Azad, whereas you have criticised the great Muslim leaders like Allama Iqbal and Sir Syed Ahmad Khan.

(b) The comparative studies of the lives of the two leaders namely, late Quaid-e-Azam Muhammad Ali Jinnah (who has been listed by you as last number in that book) and Mr.M.K.Ghandhi is likely to result in tension among the persons residing in West Pakistan.

(c) You have compared Mr. M.K. Gandhi with Prophets of main Religions of the world which is likely to create tension in the West Pakistan which is inhabited mostly by the Muslims (page 26 of the book).

(d) You have praised the efforts of Mr. M.K. Gandhi for trying

to save Hindustan from partition (page 26 of the book).

(e) You have described Ali Garh University as Centre of English

worship and communal education (page 32 of the book).

(f)You have described the partition of Hindustan on the basis of

two Nations Theory (page 30 of the book).

(g)You have described the partition of the country "as a lo:5s"

(page 40 of the book).

(h) You have described Mr. Jawahar Lai Nehru's acceptance of partition of Hindustan on the basis of two-Nation theory as a mistake (page 63 of the book).

(i) You have tried to justify the policies of Mr. Jawahar Lai Nehru on Kashmir issue which is the most sensitive issue in Pakistan particularly in West Pakistan (pages 64 and 65 of the book).

(j) While writing about Maulana Abual Kalam Azad you have indirectly criticised the construction of Mausoleum over the resting place of late Quaid-e-Azam by spending crores of rupees on it and further have compared it to the grave of Maulana Abual Kalam Azad in the City of Delhi (page 72 of the book).

(k) You have severely criticised those Muslims who fought for the creation of Pakistan (page 83 of the book).

(1) You have made a serious attempt to create hatred against a particular sect of person living in West Pakistan (pages 98 and 99 of the book).

(m) You have indirectly expressed hope that Pakistan would again unite with Hindustan (page 102 of the book).

(3) That before your movements were restricted by the District Magistrate, Dadu by his order dated 23rd of June, 1967, you had been busy visiting various places, Teeting students and persons of other walks of life, with a 'view to prejudicing public safety, disturbing public order and injuring public interest.

(4) That you have established an institution which is known as Bazm-e-Soofian-e-Sind. This organisation is really a camouflage for your prejudicial activities. Your main purpose in establishing this organisation is to exploit the students community and to create turmoil and unrest in the country.

(5) That as a result of your writings and other activities you created feelings of disaffection between the Sindhi and non-Sindhi students which resulted in violent clashes between the two groups, the last of which took place on 19th June, 1967, late in the evening in the New Campus, Jamshoro in Dadu District.

(6) That during the peak hours of students disturbances you met the ring leaders of the students namely Muhammad Yusuf Leghari and Jam Saqi in the month of May, 1967. These leaders have been spearheads of the students agitation resulting in violences. There have been attacks and counter-attacks between the two groups of students in the New Campus of Sind University situated at Jamshoro, District Dadu.

(7) That on 4th March,1967, the students took out processions in defence of the order under section 144, Cr.P.C. in Hyderabad. This procession had started from the Sind University (new Campus) situated in Dadu District and after crossing Indus river entered in Hyderabad District. The situation so created by the students as a result of your aforesaid activities was alarming and compelled the police to resort lathi charge after the use of tear-gas failed to disperse rioting students. About 210 students were arrested under various provisions of law. On the same day another students procession was taken out in the City of Hyderabad. Public Transport buses were stoned, causing damages to the public properties.

(8) That the situation continued to worsen and the problem of maintaining law and order became acute in the District of Hederabad and Dadu. Consequently the. University of Shied, Colleges and Hostels at Jamshoro in the District of Dadu were closed down for an indefinite period.

(9) That you have been creating sectarian feelings by setting, group of people against the other citing imaginary injustice to them.

(10) That the aforesaid activities of yours have prejudiced and are likely to further prejudice the maintenance of law and order in the Province and excite feelings of hatred and enmity amongst the various sections of the population."

7. Ground No.2 relates to the views of the petitioner on different matters reflected in his book "Jadid Siaysat Ja Nau Ratan" which was published in June 1967. Grounds No.-1 & 4 relate to sponsoring and organising Bazm-e-Soofian-e-Sind. The allegation is that under the cover of this organisation prejudicial activities are indulged into and the student community is exploited to create turmoil and un rest in the country. Grounds Nos.5,6, 7 and 8 relate to the active association of the petitioner in the agitation launched by the students in the year 1967. The above said activities have been considered by the Governor of West Pakistan to be prejudicial such as would be covered by section 5(1) of the West Pakistan Maintenance of Public order Ordinance, 1960. They have also been considered sufficient to give rise to a likelihood of further disturbing the maintenance of public order and have been described to be against public safety and public interest.

It is admitted that the petitioner has written the book "Jadid Siaysat Ja Nau Ratan." It is also admitted that the petitioner is connected with the organisation of Bazm-e-Soofian-e-Sind. It is also admitted that the petitioner has attended several meetings of the Bazm and has delivered speeches. The students of some of the passages from the book "Jadid Siaysat Ja Nau Ratan" given in the impugned order has also not been controverted. The learned counsel for the petitioner has merely denied the allegation that the petitioner was associated with the student riots or that activities were likely to result in disturbance of public peace of class hatred. The learned counsel for the petitioner has also explained the passages from the book "Jadid Siaysat Ja Nau Ratan" mentioned in the impugned order by saying that they are an honest appraisal of the life and character of the personalities mentioned as "Nau Ratan" and that there could be no objection to such an appraisal by a writer of history, As against that, the learned Additional Advocate-General has through counter-affidavit of Mr. M.M. Usmani, Deputy Secretary, Home Department, Government of West Pakistan submitted that the Government have before them enough material for arriving at the conclusion that the activities of the petitioner reflected in the impugned order are likely to result into the consequence the avoidance of which had made it necessary for the Government to place restriction as contained in the order on the petitioner. For purposes of this order, we do not want to get into the controversy and discuss chapter and verse as to whether what is written in "Jadid Siaysat Ja Nau Ratan" is an honest appraisal of the life and character of the personalities mentioned in that book or whether it is an isolated opinion of the petitioner himself. What we are concerned with really for the purpose disposing of this petition is whether the book contains material which is likely to result into disaffection and class hatred or not. We have gone through most of the passages in the book. Some passages have also been read to us by the learned counsel for the petitioner. We are of the view that the book is replete with material which is definitely injurious to the feeling of the people living in this country. We shall only quote here a few passages in order to substantiate what we have said. The first passage appears at page 26 and is verbatim reproduced as under:

Rough translation of the above passage is that even the main prophets of the world during their lifetime had not as many followers who could give their life for them as this political leader, of weak constitution and qualities of a Sadhu had. This passage appears in the book in reference to the life of Mr. Gandhi. Here Mr. Gandhi is compared in so far as his number of followers were concerned with the main prophets of the world. Mr. A. K. Brohi, the counsel for the petitioner, explained this passage by saying that what is written in it is absolutely true because all the prophets of the world had no followings in their life as much as Mr. Gandhi had. Whatever the qualities of Mr. Gandhi as a political leader, everyone in this world will definitely consider the comparison of Mr. Gandhi with the prophets as a matter of great sacrilege. Mr. Gandhi being a political leader could only be compared with the political leaders even in respect of their following because the rudimentary principle on which comparisons are made is that the points of distinction are to be drawn between the persons of the same, class or the things of the same species. Mr. Gandhi by no means belonged to the class of prophets and as such to compare him with the main prophets of the world would amount to comparing him with persons of different class. Such a comparison obviously would result in class hatred and also dis-affection in peoples of different religions.

8.The second passage appears at page 32 and reads as under:

The passage also appears in the discussion of Mr. Gandhi's life. Roughly translated it means that on account of non-cooperation movement hundreds of people gave up their titles and their educational grants. Maulana Muhammad Ali under the patronage of Mahatmma Gandhi tried to convert Aligarh University which was a den of ( --- ) and (---) into ( --- ) institution by breaking or reorganizing it. The result of this was that (---) at Delhi came into existence. Aligarh University unmjstakeably is described by the petitioner as a University of (---) and (---). It is matter of common knowledge that half of the talent in Pakistan is due to education in Aligarh. To talk of Aligarh Muslim University as a place of (---) and (---) is sufficient to incite the feeling of people and create disaffection.

9.The third passage appears at page 40 and is reproduced as under:

Roughly translated it means that Mr. Gandhi as a leader knew that religion had a great impact on the life of people and as such instead of attracting them towards himself by logical reasons considered it worthwhile to attract them and put them on the path of by way of religious traditions and appeal to their emotions. The result of this method was gain as well as loss i.e. independence was given but with partition. The result of what happened on account of Mr. Gandhi's way of dealing with people has been described by the petitioner in this passage as both a gain and a loss Gain, according .to him, was in getting freedom and the loss was two cause of partition. There can therefore be no two opinions about the fact that in the book written by the petitioner in 1966 his own view about the independence of Pakistan was a loss. Nothing more obviously is needed to injure the feelings of the people living in this Lountry than saying that the independence of Pakistan was a loss. The petitioner has also at several places expressed a wish and hope that day a will come when this loss will be made up.

10.The fourth passage appears at passages 71 and 72. It isreproduced hereunder:

Roughly translated this passage means that by about 1947 there were two Muslim workers of unusual qualities and knowledge. One was Maulana Abual Kalam Azad who, keeping in mind that which was beneficial for united India, was separated from the majority of Muslims and the other was Quaid-e-Azam Muhammad Ali Jinnah who, keeping in view the prevailing needs of Muslims led them and established Pakistan. Both of them occupied unique place in the history. Maulana Abual Kalam Azad despite the fact that he was a religious leader, an embodiment of sacrifice and a person of,great thinking, could not keep the majority of Muslims with himself whereas. Quaid-e-Azam, in spite of being bereft of all knowledge of Islam and without making any scrifice and without being an idealist and a thinker of the high type became Quaid-e-Azam of Muslims and became successful in getting them a land without undergoing any hardship of going to jail. Both of them have died. Maulana Abual Kalam Azad is buried in Delhi near the grave of Sarmad Shaheed whereas on the grave of Quaid-e-Azam in Karachi, the place where he was born, a mausoleum on expenditure of crores of rupees is being built. The history in posterity will have to decide whether the policy of Maulana Abual Kalam Azad was correct and permanent qr-it was the policy of Quaid-e-Azam which was correct and permanent.'

11. The substance given above need no explanation. We can state here without fear of being contradicted that an overwhelming majority of the people of this country hold Quaid-e-Azam in highest esteem and consider him to be the Father of Nation and the architect of Pakistan. Whatever be the personal views of the petitioner about Quaid-e-Azam, the whole nation is indebted to him for what he has done for Muslims and for being responsible for creating a separate land for them. Even the worst enemies of Quaid--e-Azam do not attribute to him the qualities attributed by the petitioner to him in the above passage. It is not true that Quaid--e-Azam was bereft of all knowledge of Islam. It is also not true that he made no sacrifices. It is also not true that he was not a person of high thinking or was not an idealist of the high type. Even his worst enemies have acknowledged him to be a man of exceptional qualities. Assuming, as argued by Mr. Brohi, that what is written by the petitioner in the above passage is a reflection of his feelings and that he is entitled to express his feelings, freedom of expression having been guaranteed to the persons of this country, what we are concerned with here is whether expression of feelings which is conducive to injuring the feelings of the people of this country and creating disaffection is permitted by law. There can be no two opinions about the fact that feelings of an individual when they are reduced into writing and are calculated to injure the feelings of others are not permitted in law to be expressed despite the guarantee regarding freedom of expression given under the Constitution.

12. There are numerous other passages appearing in this book which show unmistakeably that the petitioner is not satisfied with the birth of Pakistan and has not till today reconciled himself with it. There are also passages appearing in Iris book where by comparison he had extolled Congress leaders to skies whereas the position he has given to the Muslim political leaders is much inferior. Even the respect and regard shown by him for a man like Sardar Patel is very high. We think that the best way is to say no more about it. Less said about it the better.

13. Mr. Brohi has also argued that the book from which the passages have been cited in the impugned order has not yet been proscribed and as such the passages relied upon should not be considered such as should form the subject-matter of the order. The book has been written admittedly in 1967. It is, therefore, a matter of the past activity of the petitioner. Passage from this book have only been brought in the impugned order to -indicate the past conduct of the petitioner for the purpose of justifying the necessity of imposition of restrictions mentioned in the order in order to prevent him from writing such things hereafter or from making public speeches of the same type. The fact that the book has not been proscribed, therefore, has very little to do with what the petitioner is likely to do hereafter and whether what he is likely to do should or should not be prevented by putting restrictions of the type mentioned in the order. Mr. Brohi has also argued that Bazm-e-Soofian-e-Sind is an organization which is in existence and that restrictions on the petitioner for dissociating himself with that organisations cannot be considered to be justifiable in face of the fact that the organization has not been banned. The only answer we can make is that there is nothing wrong with the organization. What is alleged against the petitioner is that he has been using this organisation as a cover for getting a. platform for making speeches of objectionable type.

14. The material available with the Government including that which has been reproduced above, in our opinion, is sufficient for reaching a conclusion for the purpose of passing the impugned order. Section 5(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 merely envisages satisfaction of Government or the District Magistrate with a view to preventing a person from acting in any manner prejudicial to public safety or public interest or the maintenance of public order. This satisfaction, in our view, has to be subjective and has not to be scrutinized by application of standards which are applied for judging evidence before its extension for three months with effect that the impugned order or its extension for three months with effect from 12th March, 1968 does not call for any interference.

15. Apart from that, section 5(5) of the West Pakistan Maintenance of Public Order Ordinance 1960 requires the authority making the order, to communicate to the person against whom the order is made, the grounds on which it has been made and also to inform him that he is at liberty to make a representation to the Government against the said order. The petitioner admittedly had been given grounds on F which the impugned order had been passed and had also been informed that he had the right to make a representation but the petitioner did not make any representation. The order dated the 12th March. 1968 under which the period of restrictions for another three months has been extended, has also been communicated to the petitioner with information that he has the right to make a representation. He may, if he so desires, make a representation to the Government against this order.

16. In view of what has been said above, we see no force in the petition made by the petitioner and as such we dismiss it with costs

S.Q./G-37/K Petition dismissed.

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