P L D 1958 (W (PLP)

It thus endangers the security of Pakistan. Qaim Shah for Appellant. , Ghazanfar Ali Shah, P. P. for Respondent. Date of hearing : 19th October 1957. MUHAMMAD SHAFI, J.‑ Hussain Bakhsh Kausar, aged about 35 years, son of Karim Bakhsh, of Peshawar City, has been convicted by the learned District Magistrate, Peshawar, under section 124‑A of the P. P. C., and sentenced to imprisonment till the rising of the Court and a fine of Rs.

300. He appealed against his conviction to the Court of the Sessions Judge, but later on withdrew the appeal from there, and has now presented it to this Court. Mr. Massarat Hussain Zuberi, Commissioner, Peshawar Division, by a letter addressed to me, has invited my attention to the fact that the sentence awarded to the accused was very light and wholly inadequate, and should, therefore, be enhanced in the exercise of my revisional powers. I have heard both these cases together. The case arose as a result of the speech which was delivered by the accused on the 5th of October 1956, at Hasting's Memorial, which incidentally is situated in the heart of Peshawar City, in a meeting arranged by the Anti‑One- unit Front. The accused in the beginning of his speech praised Samin Jan Khan whose death anniversary was being celebrated on that day. A resolution, condemning the action of the Government of West Pakistan, was then moved by him, and he described the action of the Government as undemocratic, un‑Islamic, and against law in meting out a barbarous treatment to Abdul Ghaffar Khan by keeping him in solitary confinement and putting him to all sorts of tortures, and in not issuing a bulletin about his health as was done in the cases of the Ministers. Speaking on the resolu tion, he said that Abdul Ghaffar Khan had lost considerably in weight and then put a question to the audience:‑ "Are you going to tolerate all this," to which the audience replied in negative. He called the Government in power as the Government of thieves and the Ministers were men of straw, and of no consequence whatsoever in the eyes of the public. It seems necessary to be mentioned here that Abdul Ghaffar Khan at the time when this speech was made was an under trial prisoner and was being prosecuted before Mr. Justice Shabir Ahmad of the West Pakistan High Court at Lahore for offences under sections 123‑A, 124‑A, and 153‑A, of the P. P. C. He was finally convicted under sections 123‑A and 124‑A of the P. P. C., and sentenced to imprisonment till the rising of the Court as well as to certain fine [The State v. Abdul Ghaffar Khan (P L D 1957 Lah. 142)]. The broad question which requires determination in this case is, whether this speech offends against section 124‑A which runs as under :‑ "Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, Her Majesty of the Government established by law in the Provinces and the Capital of the Federation, shall be punished with transporta tion for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine." The word "disaffection" is explained as including disloyalty' and all feelings of enmity. Comments expressing disapproba tion of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempt ing to excite hatred, contempt or disaffection, do not constitute an offence under this section. Similarly, comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. This section, whatever its significance and the scope of its application was before the Constitution, will have to be read in the light of the changed circumstances, and subject to Article 8 of the Constitution of the Islamic Republic of Pakistan, which lays down that every citizen shall have the right to freedom of speech or expression subject to any reasonable restrictions imposed by law in the interest and security of Pakistan, friendly relations with foreign States, public order, decency, or morality, or in relation to contempt of Court, defamation or incitement to an offence. Freedom of speech, subject to the restrictions mentioned above is essential, because without it the society based on the ideas of peace, order, or justice, cannot take shape, nor can the people who wish to live in freedom can be assured of greater security guaranteed to them under the Constitution. Constitution, as is clear from the wording of Article 8, has been very careful to secure to even most repellent of the citizens the common right of free expression so long as it does not transgress the limitations placed by law. The police and the people in authority must change their outlook now and stop the unnecessary harassment of the people by censoring the letters of the citizens of Pakistan, tapping their telephones, and keeping a watch on their activities except in the case of the known traitors and treason‑mongers because that amounts to the negation of the fundamental right guaranteed to the people by the Constitution. Freedom of expression of one's views is a gift of the Constitution, and it cannot be abridged by the people in authority so long as it is not intended to create a chaos in the country or disrupt or destroy it. In my view, it is permissible for a citizen to hold up the men who are charged or have been charged with the executive Government of our country and the care of her destinies to ridicule and contempt if they are guilty of mal‑administration. It will be absurd to suggest that a citizen has no right to advocate the change of the Government of one political party, even if it commits blunders and betrays the trust reposed in it. It is high time that the people in power realised that they have no absolute power over the lives and conduct of the persons who reside within their jurisdiction. A man is entitled to his opinion and is within his right to express it. The citizens of Pakistan are free and they must be allowed to live in freedom and the law of the land should conform to this freedom. Reading the speech of the accused as a whole as it should be done, and without paying undue regard to any particular sentence or phrase which occurred in the speech, I am driven to the conclusion that all that the accused did was to give an exaggerated emphasis on the treatment meted out to Abdul Ghaffar Khan while he was in custody. He did not say anything from which one can draw a logical inference that he wanted to cause any harm to the country or the nation, or endanger the security of Pakistan. It is not the criticism of the Government, in whatever venomous and enraging words it is cloaked which constitutes an offence under section 124‑A of the P. P. C., but the adoption of the methods for the attainment of a certain purpose and that too only when they encourage force and violence which may lead to conflict with the authorities with the certainty that there will be grievous loss of life. Short of that, every criticism of the Government is permissible, and it will ill become the authorities to countenance without good cause the diminution of these rights and so to encourage the growth of opinions which are hostile to the existing institutions. Although it is difficult to believe that a Government headed by Dr. Khan Sahib, the brother of Abdul Ghaffar Khan, would keep the latter in solitary confinement or torture him, yet even if it was a fact the appellant should have left the brothers to settle the question between themselves. But even if he took up cudgels for Abdul Ghaffar he did so without transgressing the law. He was only expressing disapprobation of the administrative action of the Government. There is nothing in this speech which will lead me to the conclusion that he wanted to excite or he attempted to excite hatred, contempt, or disaffection. Hatred, contempt or disaffection towards the Government is usually created towards the Government by words imputing to the Government base, dishonourable, corrupt or, malicious motive in the discharge of its duties, which was not done in this case. To criticise a Minister is no offence. If the Ministers are held above criticism then it would amount to this that if a person by fair or foul means attains to that height then the people cannot make any effort to remove him nor can his own errors even if he repeats them twenty times or his corruption, undemocratic action or mal‑administration dislodge him from that position. Public platform is the only place from where the misdeeds of those‑ mho hold the reins of the Government can be exposed. If that is shut out, the democracy will see its end in no time. If we wish to retain the fundamental liberties and remain a free and independent people walking in the democratic way of life, we must be swift to scotch at the outset tendencies which may easily encroach upon liberties. Ministers may form the Govern ment but they are certainly not the Government within the meaning of the word used in section 124‑A of the P. P. C. Freedom of speech is only curtailed when it affects the security of Pakistan, friendly relations with foreign States, public order, decency and morality etc. I note with profound dismay that the meeting in which the accused made the speech started with the obnoxious and hateful cry of Pukhtucaistan‑zinda‑bad, the term coined by Gandhis and Patels and introduced with the sole object of destroying Pakistan. I am firmly of the opinion that the demand that certain tract of Pakistan should be named as Pukhtunistan or Pathanistan, even if it is within Pakistan, is calculated to ultimately harm Pakistan irreparably. This demand is most certainly illogical, because the people who advocate it flow before India was partitioned fought most forcefully and bitterly for Akhand Hindustan without demand ing a separate Province of their own. They started putting emphasis on it only after Pakistan came into being. This demand is un‑Islamic, because Islam enjoins the people following this great religion to call themselves Muslims and Muslims alone. With regard to Pakistan, if the demand is accepted, it will cut the very roots of the country born in spite of it. It thus endangers the security of Pakistan. that as it may, the accused‑appellant fortunately for him, did not raise this cry or make this demand in this meeting. Considering the speech as a whole, I am afraid I have arrived at the conclusion that it is not hit by section 124‑A of the P. P. C., and the accused, therefore, cannot be convicted under it. The appeal is accepted and Hussain Bakhsh Kausar is acquitted of the charge. The fine, if realized, shall be refund ed to him. In view of the above finding, the exercise of the power of this Court to enhance the sentence cannot be attracted, although I must make this observation that if a person is convicted under, section 124‑A of the P. P. C., then no conscientious scruples should be allowed by the Magistrate to come in the way and treat the offence so lightly as the District Magistrate has done in this case. The people who attempt to disrupt or disintegrate the country are liable to be very severely punished. A. H. Appeal accepted.