P L D 1957 (W (PLP)

INAMULLAH, J.

This Special Bench has been constituted under section 24 of the Press (Emergency Powers) Act, 1931, to deal with a petition under section 23 of the said Act by one Anwar Shaikh, whose pamphlet known as "Panorama of Sind-11" has been forfeited to the Government of Pakistan by the Chief Commissioner of Karachi by his order dated the 12th February 1954, purporting to have been passed under section 19 of the said Act on the ground that the pamphlet contained matter intended to bring the Government into hatred and contempt. It is clear from the order passed by the Chief Commis sioner, Karachi, under section 19 of the Press (Emergency Powers) Act, 1931, that the pamphlet was "intended to bring the Government into hatred and contempt", and therefore the relevant provision which the pamphlet con travened would be subsection (1) (d) of section 4 of the Press (Emergency Powers) Act, 1931 ; the relevant portion reads as under :- "Whenever it appears to the Provincial Government that any printing press is used for the purpose of printing or publishing any . . . . . book or other document con taining any words, signs or visible representations which tend, directly or indirectly,

(d) to bring into hatred or contempt His Majesty or the Government established by law in the Provinces and the Capital of the Federation or the administration of Justice in the Provinces and the Capital of the Federation or any class or section of His Majesty's subjects in the Provinces and the Capital of the Federation, or to excite disaffection towards His Majesty or the said Government . . . . ., the Provincial Government may . . . . declare all copies of such . . , . . . book or other document wherever found in the Provinces and the Capital of the Federation to be forfeited to His Majesty". In this connection Explanations 2 and 3 to section 4 may also be reproduced ; they are as under :- "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 main contention of Mr. Bhutto, the learned advocate for the petitioner was that the pamphlet in question did not contravene the provision of clause (d), subsection (1) of section 4 of the Press (Emergency Powers) Act, 1931. The pamphlet is printed in English, and the front page reads as under :- "PANORMA OF SIND-II "Karachi Separation And Afterwards" by Anwar Shaikh". It'is clear from the above that the author of the pamphlet deals with the same matter relating to Sind, and that this is the second series of the pamphlet which relates to "Karachi Separation and Afterwards". It is a small pamphlet extending over 32 pages. The theme of the pamphlet, as would appear from the title page is the separation of Karachi from Sind. The article is divided into two parts, the first part deals with a Resolution of the then Minister of Interior, Khwaja Shahabuddin before the Constituent Assembly relating to the separation of Karachi from Sind. Mr. Anwar Shaikh deals with this Resolution at great length which extends over 24 pages of his pamphlet. The rest of the article deals with what happened after Karachi had been separated from Sind. The object of the article in the words of the author himself which appears on the concluding page of the pamphlet is as under :- "It is the duty of the Provincial intelligentsia to sternly demand from the Sind Government a prompt legal action against the Centre for the restoration of Karachi. Either the Central Government must pay within a specified period the full monetary compensation to the Province, or it should be dragged to the Federal Court to answer for the 'Constitutional Usurpation' bf the City of Karachi from Sind. It is the duty of every educated person to see that the first popular demand put before our elected representatives after the termination of H. E. Shaikh Din Muhammad's non-representative Government, is either adequate compensation or the restoration of the City of Karachi through the Federal Court-the Custodian of Law and Constitution". The article starts how the Central Government, after the partition, temporarily took its residence at Karachi at the request of the Government of Sind. It then deals with the Resolution of Khwaja Shahabuddin and his arguments for the separation of Karachi from Sind. The author has attempted to criticise the arguments advanced by Khwaja Shahabuddin in favour of the separation of Karachi from Sind. Most of the pamphlet deals with the arguments of Khwaja Shahabuddin in favour of the separation of Karachi from Sind and the comments of the author on the points urged by Khwaja Shahabuddin in favour of the separation of Karachi from Sind. As regards what happened after Karachi had been separated, the author states that people like Mr. Hussain Imam have tried in their own interest to have Karachi declared a Governor's Province to suit their ends. The author lastly while concluding his pamphlet addresses the intelligentsia to demand from the Central Government compensation for having Karachi separated from Sind, or to initiate proceeding before the Federal Court against the separation of Karachi. It is now a well settled rule of interpretation of a particular piece of writing in order to find out whether the same falls within the mischief of the prohibitions enumerated under section 4 (1) of the Press (Emergency Powers) Act, 1931, that "the article should be read as a whole in a fair, free' and liberal spirit, not concentrating on isolated passages or words, but endeavouring to grasp the theme and intention of the writer from the words he has employed, attempting to estimate at the same time the effect of those words, and the manner of their employment, upon the mind of the average reader". This principle of interpretation was laid down by a Special Bench of the Lahore High Court in the matter of the Daily Ehsan (P L D 1949 Lab. 282) and was approved of in the matter of Malik Nasrullah Khan Aziz v. Crown (P L D 1950 Lab. 420). We have read the whole of the pamphlet, and keeping the above principle of interpretation in view we have come to the conclusion that though the author has at places used strong language, the article as a whole cannot be said to be intended to bring the Government into hatred or contempt within the meaning of clause (d) of subsection (1) of section 4 of the Press Act. Mr. Raymond the learned Public Prosecutor raised a two fold contention before us. In the first place he contended that it is the duty of the High Court to scrutinise the article in question in order to determine whether any part thereof is of a nature specified in any clause of subsection (1) of section 4 of the Press Act. It was urged that the duty of the High Court within the meaning of section 23 of the Press Act was to see whether the pamphlet contravened any of the provisions of subsection (1), clauses (a) to (i) of section 4 of the Press Act, 1931. In the second place it was contended by the Public Prosecutor on the basis of certain passages appearing in the pamphlet, which he had marked out for us, that they did in effect bring the Government into hatred or contempt. I shall deal with these contentions separately. There is no force in the contention of the learned Public Prosecutor that this Special Bench has to find out for itself after reading the pamphlet whether it contains any of the various circumstances under which a particular pamphlet may be forfeited as provided in clauses (a) to (i) of subsection (1) of section 4 of the Press Act. The learned Public Prosecutor relied in support of his contention on the wording of section 23 of the Press Act, the relevant portion of which reads as under :- "The keeper of a printing-press who has been ordered to deposit security . . . . . or any person having an interest in any property in respect of which an order of forfeiture has been made under section 4, section 6, section 8, section 10 or section 19 may, within two months from the date of such order, apply to the High Court for the local area in which such order was made, to set aside such order, and the High Court shall decide if the news paper, book or other document in respect of which the order was made did or did not contain any words, signs or visible representations of the nature described in section 4, subsection (1)." But this argument is devoid of all substance in view of subsection (1) of section 25 which sets out the circumstances in which the Special Bench is bound td set aside the order of the Provincial Government. Where "it appears to the Special Bench . . . . . that the words, signs or visible representations contained in the newspaper, book or other document in respect of which the order in question was made were not of the nature described in section 4, sub section (1), the Special Bench shall set aside the order". Therefore, subsection (1) of section 25 would mean that the Provincial Government's order shall be set aside if the Special Bench is of opinion that "the words, signs or visible representations" in respect of which the order in question was made, do not fall within the mischief of subsection (1) of section 4 of the Press Act. This point, which has been urged before us by the learned Public Prosecutor has been clearly overruled by Cornelius, J. as of no substance in the case of Sher Muhammad v. The Crown (P L D 1949 Lah. 510). So far as the second contention of the learned Public Prosecutor is concerned that the pamphlet in question contains "matter intended to bring the Government into hatred and contempt", he asked us to mark 17 passages in the pamphlet which according to him were such that on their proper interpretation this Court could come to the conclusion that they were "intended to bring the Government into hatred and contempt". It would not be necessary to deal with all the 17 passages pointed out by the learned Public Prosecutor, as most of them are just simple comments by the author, though strenuously worded. I would however, take some of those passages which the learned Public Prosecutor has relied upon very strongly in support of his contention. Before we deal with the passages referred to above, it would be useful to reproduce the principle laid down by Cornelius, J. in the matter of The Daily Ehsan which in our opinion would be applicable to the present case while determining the question whether the passages are such that this Court can hold that they were intended to bring the Government into hatred or contempt ; "The article will come within the mischief, if it tends to arouse feelings of enmity or hatred or contempt. Much of these feelings is in the nature of an emotion. If the article is expressed in emotional terms, there will prima facie be a tendency in it to arouse emotions in the minds of its readers, but on the other hand, if the appeal be to the head, rather than to the heart, if reason and not the emotions be exercised or invoked, the presumption will be to the contrary, namely that no emotions are likely to be aroused. If at the same time, the argument be of a careful nature and although persuasively yet inoffensively expressed it will be difficult to regard it as being either intended or calculated to give rise to such violent feelings as are meant by the expressions 'enmity', 'hatred' and contempt'. Any form of mere dislike is not enmity ; the feeling must be one of hostility, antagonism and ill-will. Similarly, hatred is much stronger than mere opposition ; it means aversion carried to the point at which there is a desire to injure or destroy the object of the emotion, and contempt means more than regarding the object as inferior ; it involves an opinion that the object is of a vile, despicable or worthless character . . . . . The language commonly is employed immoderate, touching, if it does not exceed the boundary between fair criticism and abuse, and the appeal is rarely is to the intellect by the processes of ratiocination, but almost always to ignorance and prejudice. Incitement to such violence of thought may, of course be prefaced by learned discourse on morals or theology, accompanied by reasoned analysis, but unless the incitement is perceptible in the writing, there can be no conclusion to that effect merely because the argument results in showing that in some respect the activity under discussion is ill-advised or misguided". While considering whether the passages in question are of the nature specified in clause (d) of subsection (1) of section (4) of the Press Act, I would also mention the observation of Rahman J. (as he then was) in the matter of Malik Nasrullah Khan Aziz v. The Crown. This observation was made by Rahman, J. while considering a certain article which was alleged to have contravened section 4 (1) (d) of the Press Act. The observation laid down by Rahman, J. in Malik Nasrullah Khan Aziz's case is :- "I agree with the principle laid down in some of them (authorities) 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 criticise must not be confused with licence to hold up the Government established by law, to hatred or con tempt." Keeping in view the above observations I would now proceed to consider some of the passages that have been strenously relied upon by the learned Public Prosecutor in support of his contention that they had the effect contemplated by subsection (1) (d) of section 4 of the Press Act. One of the passages relied upon by the learned Public Prosecutor runs as under :- "The 'Camel and the Arab' story has a corresponding proverb in Sindhi which means that "She came to borrow a few coals but finally took over the Kitchen." This explains literally the role of the Central Government in the 'Constitutional Usurpation' of the City of Karachi. As for the poor, crippled, unfortunate Sind, its case can be summed up in another folk saying which depicts the helplessness of a certain quadruped 'who had embarked on a search for horns but consequently lost also its ears". The word "usurpation" in the above passage may be a strong word, but the fact remains that the Central Government did separate Karachi from Sind and took over its administration. The mere use of the word "usurpation" cannot be said to arouse the feeling of hostility so as to destroy the object of emotion ; it cannot also involve an opinion that "the object is of a vile, despicable or wortheless character. The next passage that has been strenously relied upon by the learned Public Prosecutor, runs thus :- "On this fateful day (22nd May 1948), Democracy in this country died an unnatural death, at the hands of a brute majority of the Honourable Members of the Pakistan Parliament. In brazen violation of all Democratic, Legal and Moral principles Karachi was partitioned from Sind, notwithstanding the strong protests and fervent appeals for justice from literally every nook and corner of this Province". This also is an opinion of the author expressed in strong words about the established fact of the separation of Karachi from Sind. The pamphlet is in English and is addressed to the intelligentsia of Sind who are fully conversant with the circumstances leading to the separation of Karachi from Sind. The third passage that has been relied upon is :-- "But all that Sind received in return for this hospitality was a dagger in its very heart. Time has proved that Khwaja Sahib's claims about the so-called building programme was a mere sham. On the contrary the separation of Karachi deprived the City of being benefited by the Post-War Reconstruction Plans of Sind Government which were about to be implemented when the Province was partitioned". This passage no doubt is couched in a strong and unhappy language, but it cannot be said that it arouses a feeling of contempt or hatred in the minds of those to whom it is addressed. The other passages to which our attention had been drawn by the learned Public Prosecutor are also to the same effect as the passages I have dealt with above. They are strongly worded, but it cannot be said that they have effect of arousing "aversion carried to the point at which there is a desire to injure or destroy the object of the emotion" or that they involve "an opinion that the object is of a vile despicable or worthless character". No affidavit has been filed by the Crown to show that in fact what has been stated by the author in the pamphlet is a misrepresen tation of fact. In the absence of any misrepresentation of fact by the author, his opinion, though strongly expressed cannot be said to have the specified effect as contemplated by subsection (1) (d) of section 4 of the Press (Emergency Powers) Act, 1931. We have given our careful consideration to the pamphlet in question, and we do not find that it has the effect specified in clause (d) of subsection (1) of section 4 of the Press (Emergency Powers) Act, 1931. The petition is accepted with costs, and the order of forfeiture by the Chief Commissioner of Karachi is set aside. A. H. Petition accepted.