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In the matter of the Kausar Bi‑weekly Urdu Newspaper published from Lahore.
Criminal Original No. 8 of 1950, decided on 19th June, 1950.
, S. 4 (1) (d)‑Offending article‑Must be read as a whole in a free, fair and liberal spirit, without stressing a strong word here or there.
, S. 4 (1) (d)‑Language of hyperbole‑‑Mere rhetorical clap‑trap--- Stock‑in‑trade of demagogue which had lost its sting by frequent use‑Article not within mischief of section.
The writer may not have expressed himself in temperate language and may have even exceeded the bounds of fair criticism by using the language of hyperbole, but mere rhetorical clap‑trap, or expressions which had become the stock‑in‑trade of the demagogue and which had, therefore, lost their sting by frequent use‑in such a case the offending passages may not be held to fall within the mischief of section 4 (1) (d).
, S. 4 (1) (d)‑Question whether allegation strictly correct‑Irrelevant.
It is irrelevant for the Court to consider whether the alle gations made by the writer were strictly correct or not.
, S. 4 (1) (d)‑Incitement to Public disorder, or, such an intention or tendency‑Not necessary for bringing article within Purview of section.
It is not necessary for bringing a writing within the purview of section 4 (1) (d) of the Act that the words complained of must either incite to public disorder or that they should embody such an intention or tendency.
If the conduct attributed to Government was of such a des picable and vile character as would inevitably lead people to regard Government with contempt or hatred, the writing would be covered by the section.
All that the section requires is that the impugned writing should have a tendency to excite contempt or hatred, and the alleged intention of the writer, inconsistent with the plain language employed by him, would be absolutely irrelevant. Even if he had acted from the best of motives, but the language employed brought the writing within the ambit of section 4 (1) of the Act, he could not be heard to say that his object was mere reform. After all, the intention of a person can be best judged from the intrinsic evidence of his writing.
74 1. A. 89; A. I. R. 1947 P. C. 82 rel.
P. L. D. 1949 Lah. 511 ref. A. I. R. 1942 F. C. 22; A. I. R. 1946 Lah. 22 dissent.
. S. 4 (1) (d)‑Sedition‑Latitude to Press in changed conditions.
Ideas of what constitutes sedition have changed with the passage of time and a good deal of latitude should be allowed to the Press so that healthy public opinion is fostered by frank and even forceful criticism of the Government in power in this age of democracy and liberty but liberty to criticize must not be confused with license to hold up the Government established by law, to hatred or contempt.
, S. 4 (1) (d)‑Only a portion of article within ambit of section‑Action of Government, whether should be upheld.
If a portion of the offending writing falls within the ambit of section 4, action taken by the Government must be up held.
A. I. R. 1931 Lah. 283; A. I R. 1948 Lah. 6 ref.
Mahmud Ali and Muhammad Siddiq, for Petitioner.
Ch. Muhammad Sharif, Assistant Advocate‑General, for Respondent.
In respect of an article published in its issue of the 25th January 1950 in the bi‑weekly "Kausar", an order was passed by the Punjab Government, directing Malik Nasrullah Khan Aziz, the editor, printer and publisher of the paper, to deposit with the District Magistrate, Lahore, security in the sum of Rs. 3,000 or its equivalent in Government securities, under subsection (3) of section of the Press (Emergency Powers) Act, XXIII of 1931. The article is headed :‑
"Daro us se jo waqt hai anewala
Ae arbab‑e‑hakumat kaya ap ko malum hai.
and the notice issued to the publisher stated that this article contained words of the nature de.4cribed in clause (d), sub section (1), section 4 of the Act. Malik Nasrullah Khan Aziz, has presented a petition under section 23 of the Act praying that the order of the Punjab Government be set aside. It is con tended that the impugned article does not offend against section 4 (1) (d) of the Act.
A translation of the offending article was sent along with the notice to the petitioner. The learned Assistant Advocate- General on behalf of the Crown has specifically marked portions in this article which he considered to be the most objectionable. The article, of course, has to be read as a whole in a free' fair and liberal spirit, without unduly stressing a strong word; here or there. The question is whether this article falls within the mischief of clause (d) of subsection (1) of section 4 of the Act, or not. To bring the article within this clause, it must contain words which tend, directly or indirectly, to bring into hatred or contempt His Majesty, or the Government estab lished by law in. Pakistan, or the administration of justice in Pakistan, or any class or section of His Majesty's subjects in Pakistan, or to excite disaffections towards His Majesty or the said Government. The case on behalf of the Government is that the article had a tendency to bring into hatred or con tempt or to excite disaffection towards the Government estab lished by law in Pakistan. There are four Explanations appended to subsection (1) or section 4, two of which have been relied upon by, leaned counsel for the petitioner. They may be reproduced as
Explanation 2.‑Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful) means without exciting or attempting to excite hatred, contempt or disaffection shall not be deemed to be of the nature described in clause (d) of this subsection.
Explanation 3.‑Comments expressing disapprobation) of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, shall not be deemed to be of the nature described in clause (d) of this subsection.
The heading of the article comprises of a hemistich taken from the well‑known Musaddas‑i‑Hali. In the context of the original poem it implies a warning against the day oft resurrec tion. As will be apparent from reading of the'‑article in the present case that idea has been combined with the idea of a day of retribution for the alleged sins committed by the Government. There are nine passages which have been specially objected to on behalf of Government, and they are set out below
(1) "When after the partition of the country you took over control of the affairs of the State without the approval of the people, you did not have in mind any better system of Government
(2) "When your morals had deteriorated to an alarming degree and you had lost all sense of responsibility."
(3) "But you utilised all the means at your disposal to suppress this voice of truth."
(4) "The very same nation asks you now, when will you release these well‑wishers of the nation and sufferers for the sake of
(5) "The world is keenly watching the spectacle of the enormity of your offence and. the patience of the masses."
(6) "The audacity with which your Government exacted bribes from the destitute persons and the narrow‑mindedness with which you kept their cases in abeyance and resorted to evasion in dealing with them have caused unhealable wounds in their hearts. Whenever they happen to see a Government servant, their wounds begin to smart, and sighs escape their lips, and they begin to lose control of their feelings. It appears, as if the time has come quite near when the price of the sigh of the op pressed shall be settled. Are you aware of this "
(7) "The masses ask if the Mujahids acquired this country for the nation or for themselves. If they acquired it for the nation; the nation alone was entitled to elect their true representatives to administer the State, and if they acquired it only for themselves, there is none more selfish or self‑seeking than you. When the representatives of a country have such morals, then God help that country."
(8) "This oppressed nation is determined to release itself from your clutches. The bugle for pious leadership has been sounded. Do you know this "
(9) "The nation also is in favour of pardoning shortcomings and failings and God also has promised to do so. But misdeeds and their repetition and persistence in them shall not be pardoned by the nation, nor has God made any decla ration to pardon the same. A day is coming when these misdeeds shall confront you in mountainous proportions. Then eyes shall remain staring. There shall be no way out. Do you know that even such an hour is coming Yes, say if you know ."
In order to appreciate the interconnection of these passages it is necessary to give the general drift of the article itself. The article is apparently a contribution from a subscriber to a paper, but, of course, the printer and publisher cannot absolve himself of responsibility for its publication, under the law. It starts with the charge that those responsible for running the Gov ernment, initially took charge of the affairs of the State, with out the sanction of a popular referendum or without ascertaining the will of the public. The writer goes on to state that those in power had no ideology in front of them, and they sometimes looked towards the capitalistic State of America and sometimes towards "the fraudulent net" of Russia, as they had no clear idea of how the Government should be run. In this connection he charges them with moral degeneration and lack of a sense of responsibility, whereas by way of contrast it is mentioned that the general public had "sold themselves into their hands in the name of God and the Prophet" and were exercising their minds as to how this tract of land which had come as a gift from the Almighty should be turned into the cradle of an Islamic State. The writer then alleges that at this critical juncture a wise man raised the cry that the only form of Government which could guarantee peace, would be that which the last Prophet (on him be peace and blessings of God) had vouchsafed to us. It was emphasised that it was imperative that Government should recite the Kalima in its own constitutional language" and then gradually reform itself. In the writer's opinion the whole country, with one voice, approved of this cry raised by one fearless and truthful person. The reference is obviously to Maulana Abul‑ala‑Maudoodi, who is Ameer of the Jamaat‑e -Islami under whose auspices the bi‑weekly "Kausar" was being published. The writer charges the Government with suppressing this voice of truth by all the means at its disposal. It is further declared that, through false propaganda in papers that dance to the tune of Government, it was proclaimed that Maudoudi and his companions were traitors to the country and subsequently they were consigned to prison. Later, however, the writer says, the nation drove the Government to that very point from which they had originally. deviated, and in the end, the Kalinza‑e‑Shahadat resounded in the form of the Objectives Resolution" (of the Constituent Assembly). The writer winds up this part of the article with the question as to when the Government would decide to release "these well‑wishers of the nation and martyrs in the cause of truth," namely, Maudoodi and his companions. It is added that the whole nation was watching patiently along with the world.
The writer then accuses the whole Government of wide spread corruption, specially in relation to refugees and tries to make out that Government had not been straightforward in dealing with them and, as a matter of fact, had extracted bribes and illegal gratification from these destitute people. The warning is uttered that the day of retribution was at hand.
In the next passage the writer grows ironical and poses the question whether the persons in power whom he sarcastically describes as "Mujahidin" had obtained the country for their personal‑selves or for the nation. If the latter was the case, according to him, the nation had the right to choose its repre sentatives to run the Government. If the former was the case, according to the writer, those in charge of the Government were just a band of self‑centred and self‑seeking individuals, and under such conditions no country could prosper. They were called upon to note that the oppressed nation had decided to replace them by what he described as "the leadership of the
In the passage, the writer expresses the theological dictum that persistence in error would be unforgivable either by God or the people till Nemises overtakes the erring ones on the. day of resurrection.
The first point raised by learned counsel for the petitioner is that, except for passage No. 6, it is not the Government established by law that was being attacked by the writer of the article but only "the party in power." According to him, "Arabab‑e‑Hakumat" could be equated with members of the Muslim League party who had assumed the reins of office after the petition, without having been formally elected by a popular vote. In my humble judgment the expression "Arbab‑e‑Hakumat" must be equated with persons who are responsible for the ad ministration and not merely a particular political party which happens to have assumed office. There is not a word in the article to suggest that the idea was to run down any such party. The whole purport of the article is a slashing attack on the persons in power, i.e., the Government established by law in the country.
There is, however, a good deal of force in the contention raised by the learned counsel for the petitioner to the effect that some of the passages to which exception has been taken on behalf of Government, amounted to no more than criticism of the constitutional position of those in power, or a particular measure adopted by them, namely, the confinement of Maudoodi and his companions in jail. The writer may not have expressed himself in temperate language and may have even exceeded the bounds of fair criticism by using the language of hyperbole, but mere rhetorical clap‑trap, or expressions which had become the stock‑' in‑trade of the demagogue and which had, therefore, lost their sting‑by frequent use, should not be held to be actionable. I am inclined to agree that passages 1, 2, 3, 4, 5, 6, 7, 8, and 9 really fall into this category and do not come within the mischief of section 4 (1) (d) of the Act. The main purport of these passages was that Maudoodi and his companions had been unjustly incarcerated and should be released and further that if those in power did‑not make amends, it was for the nation itself to assume the reins of office, through its own freely chosen representatives. It does not matter that the Government was constituted in accordance with the existing constitutional provisions in pursuance of the Indian Independence Act and elections must await the promulgation of the new Constitution by the Constituent Assembly of Pakistan. Some of the expressions used by the writer may not have been in good taste even. As has been said, however, hard words break no bones, and after giving my' careful considera tion to these passages, I am disposed to the view that it would not be justifiable to make these passages the basis of an order under subsection (3) of section 7 of the Act. I may add that in this connection it is irrelevant for the Court to consider whether the allegations made by the writer were strictly correct or not. On the questions of fact involved, there is no affidavit before us filed by either party to the case. These passages contain an admixture of political jargon and theology, which does not appear to fall clearly within the mischief of section 4 of the Act.
Passage No. 6, however, stands on an entirely different footing. It accuses Government of wholesale corruption from top to bottom and contains the extremely mischievous suggestion that Government had deliberately avoided rehabilitating refugees so that these distressed people had begun to harbour, feelings of hatred against the class of Government servants in general, and the day was not far off when the oppression to which they were subjected, would be avenged. Learned counsel for the petitioner conceded that the words as they stand in this passage are addressed to Government, but he tried to suggest that this was probably not what the writer intended. He also attempted to argue that the motive or object of the writer as to ensure reform of the policies ' of Government and not to excite contempt or hatred against it. For definition of these terms learned counsel referred us to Sher Muhammad v. The Crown (P. L. D. 1949 Lah. 511). The Special Bench in that case laid down that "contempt" in the active sense may be defined as "the act of viewing another as mean, vile or worthless", and hatred as .a sustained feeling of bitter aversion or dislike, generally combined with a desire to injure, destroy or get rid of its object". The definitions may be accepted as a working basis for determining the question whether the impugned passage in the present case had the tendency of exciting contempt or hatred against the Government established by law or not. To my mind there can be only one answer to this question. The conduct which has been attributed by the writer of this passage to Government, would be of such a despicable and vile character, as would inevitably lead people to regard Govern ment with contempt or hatred. It is not necessary for bringing a writing within the purview of section 4 (1) (d.) of the Act disorder or that it should embody such an intention or tendency. This was the old view based on a judgment of the Federal Court in Niharendu Dutt Majumdar v. Emperor (A. I. R. 1942 F. C. 22) and was followed by some of the High Courts in the Indo- Pakistan sub‑continent, e. g., in Harkishan Singh v. Emperor (A. I. R 1946 Lah. 22). This view must be now regarded as unsound in the face of the pronouncement of their Lordship of the Privy Council in Emperor v. Sadashiv Narayan Bhalerao (74 I. A. 89; A,. I. R. 1947 P. C. 82). All that the section requires is that the impugned writing should have a tendency to excite contempt or hatred, and the alleged intention of the writer inconsistent with the plain language employed by him, would be absolutely irrelevant. Even if he had acted from the best of motives, but the language employed brought the writing within the ambit of section 4 (1) of the Act, he could not be heard to say that his object was mere reform. After all the intention of a 1 person can be best judged from the intrinsic evidence of his writing.
Learned counsel for the petitioner drew our attention to an editorial published in the "Kausar" in its issue dated the 17th of April 1949, and another article published in the same issue under the caption 'Jamaat‑e‑Islami Ki Majlis‑e‑Shoora ke Aham Aur Inqalabi Faisle", as providing indication of the general policy of the ‑paper. In this connection he also relied on the article headed Qaul ho chuka ab amal kia jiye" published in the issue of the paper dated the 25th of December 1949. These articles appear to be couched in temperate language and declare that the policy of the paper was to offer free and frank criticism in the best interests of the nation with a view to reform and not to disgrade any one. These writings can undoubtedly be referred to under section 26 of the Act in order to show that the impugned article was not of a character such as could be hit by section 4 (1) (d) of the Act. It seems, however, that the declared policy of the paper was not adhered to while publishing the article under consideration. As I have observed above, no worse charge could be ‑brought against a Government than that it is wholly actuated by corrupt motives in its administration. In my opinion the passage in question certainly had the tendency of exciting contempt, hatred or disaffection against the Government established by law in this country and is not covered by any of the exceptions to section 4.
I do not feel it necessary to discuss all the authorities cited before us by learned counsel for the petitioner, as every case must be judged on its own facts and circumstances. I agree with the principle laid down in some of them that ideas of what constitutes sedition have changed with the passage of time and a good de21 of latitude should be allowed to the Press so that healthy public opinion is, fostered by frank and even forceful criticism of the Government in power, in this, age of democracy and liberty. I would only add that liberty to criticize must not be confused with license to hold up the Government established by law, to hatred
There is authority for the view that even if a portion of the offending writing falls within the ambit of section 4, action taken by the Government must be upheld. Reference in this connection may be made to Prithvi Dass Sharma v. Emperor (A. I. R.1 1931 Lah 283) and In re Jang‑i‑azadi (A. I. R. 1948 Lah. 6). I happened to be a member of the Special Bench which decided the last case. Passage No. 6.in the present case provides sufficient justification for the action taken by Government against the "Kausar" and its publisher. This Court cannot sit in judgment over the propriety of the action of Government even if some parts of the writing, which were considered offensive by them, do not actually fall within the mischief of the Act, provided that other parts of the same writing clearly come within its purview. I would, therefore, dismiss the petition, with costs
---‑I agree.
A bi‑weekly newspaper of Lahore called the "Kausar" published an article in its issue, dated the 25th January 1950 which started with the warning "Fear the time which is about to come". It was addressed to the Arbab‑i Hakumat, i.e., those responsible for the Government. The important passages, freely translated, are to the effect that after the Partition the Arbab‑i‑Hakumat had taken charge of the Government without any reference to the people. They had no idea at that time of any good system of Government and looked to Europe, America and Russia for guidance. When they had become deficient in morality to an alarming extent and had lost all sense of responsibility, a man of wisdom declared that no system of Government can bring us peace except the system introduced by the Holy Prophet. This fearless and truthful man was supported by the nation but those responsible for the Government used all their resources to suppress his voice. They called Maudoodi and his companions traitors and imprisoned them. The Arbab‑i‑Hakumat, were, however, driven by the nation to do what they wished to avoid and they had to pass the Objectives Resolution. The nation now wants to know when these well -wishers of the people and sufferers in the cause of truth w ill be released. The world is watching the enormity of the Government's crime and the patience of the people. God himself is not indifferent to this. The audacity ‑with which the Government has exacted bribes from people who had been rendered homeless, the narrow‑mindedness which they showed in keeping their cases in abeyance and the evasiveness with which they were dealt have caused wounds which can never be healed in the hearts of those people. Whenever they see a Government servant, their wounds become open, sighs escape their lips and their feelings begin to get out of control.
The people want to know whether Pakistan was established for the benefit of the people or the Government. The oppressed nation has decided to release itself from their clutches. Short comings and failures are pardonable but persistent misdeeds are not forgiven either by God or nation. The day is 'coming when those misdeeds will be brought to view in the form of mountains. The eyes will then stare and there will be no escape. Do the Arbab‑i‑Hakumat know that this time is coming Let them say if they do.
The Punjab Government issued a notice, dated 23rd March, 1950 under section 7 subsection (3) of the Indian Press Emergency Powers Act to Malik Nasrullah Khan Aziz, Editor, Publisher and Printer of the paper, stating that the article above‑mentioned con tained words of the nature described in clause (d) subsection (1) section 4 of the aforesaid Act and, in exercise of the powers confer red on him by subsection 3 of section 7 of the said Act, the Governor of the Punjab required the publisher of the newspaper to deposit with the District Magistrate of Lahore on or before the 3rd April 1950, security to the amount of Rs 3,000. Against this order Malik Nasrullah Khan Aziz has filed an application under section 23 Indian Press Emergency Powers Act, and the question is whether the article above‑mentioned contains words which bring into hatred or contempt the Government established by law or excite disaffection towards it.
It is contended on behalf of the petitioner that the words Arbab‑i‑Hakumat do not refer to the Government but to the Muslim League. I do not agree with this. The Muslim League did not imprison Maudoodi or his companions, nor can the Muslim League release them.
The passage particularly objected to by the learned Advocate‑General is that relating to the exacting or bribes by the Government from destitute people; but, it is urged that' the whole article is objectionable and calculated to bring the Government r into hatred and contempt.
The relevant portion of section 4 clause (d) lays that when ever it appears to the local Government that any printing press is used for the purpose of printing or publishing any newspaper containing words which tend directly or indirectly to bring into hatred or contempt the Government established by law of to excite disaffection towards it, the Government may demand, security.
The words hatred and contempt have been the subject of learned discussions in various authorities cited at the bar. A reference may usefully be made to A. J. R: 1942 F. C. 22, Niharendu Dutta Mujmdar v. Emperor: A. I. R. 1947 P. C. 82, Emperor v. Sadashiv Naravan Bhalerao: A. 1. R. 1946 Lah. 22, Harkishan Singh v. Emperor A. I. R. 1948 Lah. 6. In the matter of Jang‑i‑Azadi Lahore 1949 P. L. D. Lah. 212 Abdullah Malik v. Crown: 1949 P. L. D Lah. 282 In the matter of the "Daily Ehsan" and 1949 P. L D. Lah. 511 Sher Muhammad v. Crown.
The general principle which has been universally accepted is that all such writings would be considered as a whole; in a fair, free and liberal spirit. Too much emphasis should not be laid on one or two isolated passages; nor on any stray words here and there. The general effect of the whole composition on the public should be taken into consideration. Considered from this point of view, the article complained .of does tend to bring the Government into contempt if not hatred; and certainly excites disaffection towards it. I would, therefore, uphold the order of Government and dismiss this petition with costs.
Petition dismissed.
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