P L D 1960 (W (PLP)

" From " To The District Jamait‑i‑Islami ". Magistrate ". "Application for declaration is rejected. D. M." Below it is written " Declaration Se Inkar ". Picture No. 6.‑This picture shows a number of the copies of Tasneem, Lahore, and Kausar being cut by a pair of ‑scissors indicating the action of Government against these newspapers. Below it is written :‑ " Akhbarat Par Pabandi " Picture No. 7.‑In this picture fire is raging and somebody is pouring oil on it while another is blowing up the fire and below it is written " Nae Fitnon ko Hawa ". Picture No. 8.‑This picture shows the hand of the Jamait‑i --Islami in the act of writing something. Another hand is holding the pen with a view to prevent the hand of Jamait‑i‑Islami from writing anything. Below this picture is written " Tehrir Par Pabandi ". Picture No. 9.‑This picture shows a cash box which is lying open and a hand is shown taking away a bag of money out of it. On this picture it is written " Raqum Ki Zabtagi ". Picture No. 10.‑This picture shows an office room with its door closed and two sign‑boards on the door with the words " In " on one side and " Mashghul " on the other side. Below it is written " Mulaqat Se Inkar ". Picture No. 11--This picture is of a Court‑room in which a Judge is sitting with a wig on, and some books are lying on the table. Below it is written " Muqadimat ".

6. The learned counsel for the appellants has urged that there is nothing in these photographs that can be construed to be against the Government and that these pictures only depict the hardships suffered by the Jamait‑i‑Islami at the hands of the executive. At this stage it may be noticed that the issue of The Daily Tasneem dated the 16th of December 1955 was the " Ijtimah Number." At the head of the back page it is written that the facsimiles which were being published were of the charts and the maps which had been displayed at the exhibition on the occasion of the conference of the All‑Pakistan Jamait‑i‑Islami held at Karachi from the 19th to 22nd of November 1955. Learned counsel for the appellants has argued that section 124‑A, P .P. C. was not attracted to the publication of these facsimiles because they had already been displayed at the exhibition held at Karachi and that the publishers of The Daily Tasneem were privileged to reproduced the same in their paper as a news item. In my opinion the law does not excuse the publication in newspapers of writings or facsimiles of photographs which are seditious. The mere fact that these charts and photographs had been displayed at the exhibition held at Karachi does not absolve the accused from their liability under section 124‑A P. P. C. pro vided their action comes within the mischief of this section. The main question, therefore, which requires to bed determined is whether these pictures were published with the intention of creating feel ings of contempt and hatred or disaffection in the minds of the public against the Government established by law in Pakistan.

7. At the very outset the learned counsel for the appellants invited my attention to a judgment of the Federal Court of India reported as Niharendu Dutt Majumdar v. Emperor (AIR 1942 F C 22) where the learned Judges, while dealing with the question as to what constituted sedition, adopted the words of Fitzgerald, J. in R. Y. Sallivan ((1868) 11 Cox. C C 54). The observations of Fitzgerald, J. are reproduced below :‑ " Sedition * * * embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government. The objects of sedition generally are to induce discontent and insurrection, to stir up opposition to the Government and to bring the administration of justice into contempt and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices v‑hick have for their object to excite discontent or disaffection, to create public disturbance or to lead to civil war, to bring into hatred or contempt the sovereign or Government, the laws or the Constitution of the realm anti generally all endeavcurs to promote public disorder." According to this ruling, public disorder or the reasonable anticipation or likelihood of the public disorder, was the gist of the offence under section 124‑A, I. P. C. Learned counsel maintained that there is nothing to show that the accused intended to promote. public disorder. This decision of the Federal Court to India was reluctantly followed by the Allahbad and the Bombay High Courts as it was a Court of superior authority, although they did not agree with the principle laid down by it. But on an appeal by the Government from the decision of the Bombay High Court, their Lordships of the Privy Council overruled the decision of the Federal Court of India referred to above in the case of Emperor v. Sadashiv Narayan Bhalerao (AIR 1947 PC 82= PLD 1947 PC 32). While interpreting section 124‑A of the Penal Code their Lordships observed as follows :‑-- " The word `sedition' does not occur either in section 124‑A or in the Rule; it is only found as a marginal note to section 124‑A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. There can be no justification for restrict ing the contents of the section by the marginal note. In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are not relevant when you have a statutory definition of that which is termed sedition, as we have in the present case. " Their Lordships are unable to find anything in the language of either section 124‑A or the Rule which could suggest that ` the acts or words complained of must either incite to disorder C or must be such as to satisfy reasonable men that that is their intention or tendency '. Explanation 1 to section 124‑Al provides, ` The expression ` disaffection ' includes disloyalty and all feelings of enmity. ' This is quite inconsistent with any suggestion that ` excites or attempts to excite disaffection ' involves not only excitation of feelings or disaffection, but also exciting disorder. Their Lordships are therefore of opinion that the decision of the Federal Court in A I R 1942 F C 22 proceeded on a wrong construction of section 1'24‑A, Penal Code, and of sub‑para. (e) of R. 34 (6), Defence of India Rules ". As regards the scope and meaning of section 124‑A, their Lord ships approved the observations of Strachey, J. in the case of Queen Empress v. Bal Gangadher Tilak (22 Bom. 112), section 124‑A as it then stood, was confined to disaffection against the Government without any reference to hatred or contempt. Strachey, J. in his charge to the jury had observed as follows :‑ " The offence consists in exciting or attempting to excite in other certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within section 124‑A, and would probably fall within other sections of the Penal Code. . But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resis tance, to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion, that view is absolutely opposed to the express words of the section itself which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt. I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section and to a misapplication of the explanation beyond its true scope ". After this ruling had been given by Strachey, J., section 124‑A was amended in 1898 by the inclusion of the words "hatred" or "contempt" and the addition of Explanations 2 and

3. Their Lordships of the Privy Council referred to these amendments and observed that they did not affect or alter the construction of the section laid down in Tilak's case. After the judgment of the Federal Court of India almost all the High Courts in India followed the view expressed by the Federal Court. But it appears that although that judgment had been over rulled by the Privy Council, yet the High Courts of India and Pakistan, somehow overlooked the decision of the Privy Council. The decision had been given by the Privy Council in February 1947. It has been held by the Supreme Court of Pakistan in The State v. Mehrajuddin (P L D 1959 S C (Pak.) 147) that the law laid down by the Privy Council or the Federal Court of India before Partition is binding in Pakistan. A Full Bench of the Lahore High Court, however, followed the view of the Federal Court in the case of Abdur Rahman Malik v. Crown (P L D 1950 Lah. 234), and the Privy Council decision was not referred to at all. It appears that the decision of the Privy Council was not brought to the notice of the learned Judges who decided that case. However, another Full Bench of the same Court took note of the decision of the Privy Council in .the case of Malik Nasrullah Khan Aziz v. Crown (P L D 1950 Lah. 420), and while dealing with the view expressed by the Federal Court, Rahman, J., (now Judge of the Supreme Court) who delivered the judgment of the Court observed as follows :‑ "This view must be now regarded as unsound in the face of the pronouncement of their Lordships of the Privy Council in Emperor v. Sadashiv Narayan Bhalerao (74 I A 89 ; A I R 1947 P C 82=P L D 1947 P C 32).. 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." At another place in the same judgment the learned Judge observed :‑- "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 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. I would only add that liberty to criticize must not be confused with license to hold up the Government established by law, to hatred or contempt." The learned counsel for the appellants referred to some other authorities which lay down that the mere cawing of a bad feeling against the Government was not sufficient to attract the provisions of section 124‑A and that it should arose acute and active feelings of disaffection, hatred or contempt against existing authority. For the definition of the terms "hatred" or "contempt" he drew my attention to the case of In the matter of the Daily Ehsan (P L D 1949 Lah. 282) where a Full Bench of the Lahore High Court held as follows :‑ "Any form of mere dislike is not enmity; the feeling must be one of hostility, antagonism and ill‑will. Similarly hatred is much stronger than mere opposition ; it means aversion carried to the point at which there is a desire to injure or destroy the object of the emotion, and contempt means more than regarding the object as inferior ; it involves an opinion that the object is of a vile, dispisable or worthless character." I do not feel the necessity of discussing these authorities, because the controversy has been set at rest by the authoritative pronounce ment of their Lordships of the Privy Council. If I may say so with respect, the term "sedition" written in the margin of section 124‑A has been interpreted in these authorities to mean what is generally understood by it in common parlance. But it was pointed out by their Lordships of the Privy Council that a statutory definition of "sedition" is given in section 124‑A and the meaning given to the term "sedition" in some English decisions was not relevant. Their Lordships further agreed with Strachey, J. in his interpretation of section 124‑A. In fact they adopted the language of Strachey, J., as exactly expressing their own view in the matter. It is, therefore, clear to me that the offence consists in exciting or attempting to excite in others bad feelings against the Government. .In terms of the section the intensity of the bad feelings is irrelevant, though it may have a bearing on the question of sentence.

8. In the light of what has been stated above I now proceed p to examine the photographs which provide the main evidence in the case. The photograph Exh. P.B. depicts that if a Muslim were to follow the ideology of Islam, then he shall have to face the gallows or the prison‑house. The learned counsel for the appellants contended that it only depicted the sacrifices of the Muslims in the past. If this photo had been published alone, then that interpretation might have been possible, but having regard to the fact that this was published along with the other photograph it cannot be considered in isolation and the combined effect of the photographs Exhs. P. B. and P. C., on the mind of a reader of average intelligence shall have to be considered. There can be no manner of doubt that by looking at these two photographs a reader of average intelligence, would feel horrified at the actions of the Government. The heading of the photograph Exh. P. C., is "Tehrik‑i‑Islami Ko Rokne Ke Harbe". Whether the words Tehrik‑i‑Islami refer to the Tehrik‑i‑Islami of Jama'at‑i‑Islami or to the Islami Tehrik, a reader of average intelligence would not be able to make such a distinction and would unhesitatingly arrive at the conclusion, that the Government was taking drastic measures to stem the progress of Tehrik‑i‑Islami. There can be no two opinions about it that Pakistan has been built on Islamic ideology, wherein the Muslims of Pakistan are expected to order their lives in accordance with the teachings and requirements of Islam, as set out in the Holy Quran and Sunnah. The Muslims of Pakistan, therefore, have a genuine expectation from the Government that in all its activities the Government would champion the cause of Islam. The people being religious minded, an appeal to their religious sentiments would influence them more than anything else. By presenting to such people the spectacle, that a person leading the path of a true Muslim shall have to face the gallows or prison house, the accused in my opinion attempted to shock the religious conscience of the people and to excite feelings of hatred and contempt in their minds within the meaning of section 124‑A against the Government established by law. The Jama'at‑i‑Islami itself is wedded to the ideology of Islam, and even if it be assumed that the expression "Tehrik‑i‑Islami" in the photograph Exh. P. C., refers only to the Tehrik‑i‑Islami of Jama'at‑i‑Islami, then also I think these pictures were likely to arouse feelings of contempt and hatred in the minds of the people against the Government established by law in Pakistan, because, the word "Islami" is associated with it. And so far as the members ' of the Jama'at‑I- Islami are concerned, these photographs must have excited acute feelings of hatred and contempt against the Government.

9. The contention that these pictures merely describe the action taken by the Executive, has no force in it. I am of the considered view that these pictures represent the various actions taken by the Government in respect of the activities of Jama'at‑I- Islami, and in view of the definition of the Government as provided in section 17 of the Penal Code it is impossible to hold that these pictures merely depict the hardship suffered by the Jama'at at the hands of the Executive. They clearly depict the actions of the Government. It may be pointed out that even the Judiciary has not been spared.

10. These argument that these pictures are covered by Explanations 2 and 3 appended to section 124‑A is also .without any substance. It is true that in modern civilized countries, liberty of the press is fully guaranteed, but this does not mean that under the pretence of freedom, one is at liberty to bring into hatred or contempt the Government established by law. The publication of facsimiles of the gallows and the prison‑house under the caption "Tehrik‑i‑Islami Ko Rokne Ke Harbe"., "certainly exceeds the limits of disapprobation which is permissible under Explana tions 2 and 3 appended to section 124‑A.

11. Lastly it was contended that Maulana Abul Ala Maudoodi, the founder of the Jama'at‑i‑Islami, had been sentenced to death and a number of Jama'at‑i‑Islami workers had been sentenced to undergo imprisonment, and, therefore, the pictures of the gallows and the prison house represented true facts. This argument is equally devoid of force. Firstly, there is no reference in these photos to Maulana Abul Ala Maudoodi or his co‑workers and secondly, even if these pictures depicted the sentence passed on Maulana Abul Ala Maudoodi and his co‑workers, yet if they created or attempted to create hatred or contempt in the minds of the people against the Government, the fact that they represented true or historical facts would not be material on the question of the guilt of the accused. It was so held by Shabir Ahmad, J., in the case of The State v. Abdul Ghaffar Khan (P L D 1957 Lah.142). Besides, the Maulana had been sentenced to death by the Martial Law Authorities in the year 1953, but these pictures were published in December 1955. The intention of the accused could not have been anything else than to bring into hatred or contempt the Government which was then running the administration. In Ram Chandra v. Emperor (A I R 1930 Lah.371) it was held that "if certain alleged facts are used as a peg on which to hang seditious comments the truth of the facts does not excuse the seditious commentary".

12. Having regard to all the circumstances of the case, I am of the opinion that in publishing these photographs, the accused had the intention of bringing into hatred or contempt the Govern ment established by law in Pakistan. In this view of the matter the three accused have been rightly convicted of offence with which they were charged. They have already been leniently dealt with in the matter of sentence. I accordingly dismiss both the appeals. A.H. Appeals dismissed.