P L D 1973 Lahore 747 (PLP)

Explanation 3.‑‑-Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or dis affection, do not constitute an offence under this section." "

153. Promoting enmity between classes.‑--Whoever by words, either spoken or written, or by signs, or by visible representa tions, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of the citizens of Pakistan, shall be punished with imprisonment which may extend to two years, or with fine, or with both. Explanation.‑It does not amount to an offence within the meaning of this section to point out, without malicious intention and with an honest view to their removal, matters which are producing or have a tendency to produce, feelings of enmity or hatred between different classes of the citizens of Pakistan." "Section 16 (a). Dissemination of rumours, etc.‑Whoever makes any speech, shall be punished with imprisonment which may extend to three years. or with fine, or with both if such speech, statement, rumour, or report‑ (f) causes or is likely to cause fear or alarm to the public or to any section of the public; (ii) further or is likely to further any activity prejudicial to public safety or the maintenance of the public order." "Rule

49. Prohibition of prejudicial acts, publications and communication.‑(1) No person shall without lawful authority or excuse‑ (a) do any prejudicial act; or In rule 42, "prejudicial act" is defined by sub‑rule (6), which states that "prejudicial act" means any act which is intended or is likely‑ (a) to prejudice Pakistan's relations with any other power or the maintenance of peaceful conditions in any area included in Pakistan; (b) to cause disaffection among, or to prejudice, prevent or interfere with the discipline, health or training on the performance of their duties by, members of the Armed Forces or public servants; (c) to render any member of the Armed Forces or any public servant incapable of efficiently performing his duties as such, or to induce any member of such Forces or any public servant to fail in the performance of his duties as such; (d) to prejudice the recruiting of, or the attendance of persons for service in, any of the Armed Forces, or any police force or fire brigade or any other body of persons entered, enrolled or engaged as public servants; (e) to bring into hatred or contempt, or to excite disaffection towards the Government established by law in Pakistan 1 (f) to bring into hatred or contempt, or to excite disaffection towards the Armed Forces or any section thereof; (g) to promote feelings of enmity and hatred between different Masses of citizens; (h) to cause fear or alarm to the public or to any section of the public." (At this place I have reproduced only such of the portions of the rule which were relied upon before me by the learned Advocate‑General and the whole of the rule has not been quoted in extenso). Pleas of the parties and the law applicable

6. Stage is now ripe to attend to the contents of the speech allegedly delivered by the petitioner on 18‑2‑1973. A tape of that speech was displayed in Court with the consent of all concerned, subject to all just exceptions which may be available to the petitioner during the course of the trial as to the correctness or otherwise of that tape. Annex. "Y" is reproduction of the speech as made out from the tape and Annex. "Z" is a fair copy of the F. I. R. Learned Advocate‑General argued that the speech delivered by the petitioner was highly provocative which exceeded all limits of moderation. The present Govern ment of the day was a Government established by law as held by the Supreme Court in Miss Asma Jilani v. The Government of the Punjab (P L D 1972 S C 139) and State v. Zia‑ur -Rehman and others (P L D 1973 S C 49). The speech of the petitioner brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards it. It makes the present Government responsible for all evils which have he fallen this Country. It accused that radio, television, newspapers' propaganda was being carried out to give an impression to outside would that Pakistan's rulers were enemies of Islam, enemy of religious ", (i.e, religion). It attempts to promote feelings of enmity and hatred between different classes of the citizens of Pakistan. The speech is such which is intended or is likely to prejudice Pakistan relations with a foreign power, namely, Russia. It is intended or likely to cause disaffection among or prejudice or prevent or interfere with the discipline of the performance of their duties by members of the Armed Forces and brings the same into hatred and contempt. It causes an alaram to the public and, therefore is such which is punishable under section 124‑A of the P. P. C. As against this, learned counsel for the petitioner argued that the impugned speech does not even prima facie constitute any offence inas much as, (a) it simply makes a historical survey of the events which have befallen his country, (b) it purports to analyse the policy and manifesto of Jamaat‑e‑Islami, which Mian Tufail Muhammad was projecting; (c) it points out the evils which are prevalent In the Country these days and that (d) it is nothing but a constructive criticism of the actions, orders and policies of the Government with regard to the day‑to‑day problems and events and is protected by Explanations 2 and 3 of section 124‑A, P. P: C. In order to examine these submissions, it is necessary to refer to the relevant law which is to be kept in view when such pleas are raised in a case. (a) As regards the plea at (a), is concerned, it is true that no exception can be taken to an article or a speech so far as It sets forth In chronological sequence the various landmarks in n country's political struggle. But if the writer or speaker does not content himself with a mere recapitulation of events and makes comments which indicate that his purpose was not merely to appeal to the interest of his readers in a historical retrospect but evinces the further object of inflaming opinion against the Government o as to create hatred and contempt or to excite disaffection towards it, his speech will fall within the mischief of law. See Satyendra Nath Mazumdar v. Emperor A I R 1931 Cal. 337 (2). (b) As regards the point at (b) above. it was laid down in In re: S. S. Batliwala A I R 1938 Mad. 758 that a Court cannot take account of the principles or policies of a political party and declare that an offence which is punishable under the Penal Code is not an offence because it does not contravene the principles or policies of that party. Moreover, it 1s not the advocacy of certain principles‑however, extreme they may be‑that the law punishes, but the adoption of method of address intended to cause disaffection towards the Government established by law or to bring that Government into hatred or contempt. It is quite possible to express disaffection and a speech will have to be adjudged not by the political views of the accused expressing those opinions in the way he did. Fair criticism of the Government is no offence but the question the Court has to decide is, whether the speech of the accused had an intention to promote hostility and ill‑will towards the Government. If a person attempts to bring the Government into hatred or contempt or to excite disaffection towards it he will be within the mischief of law. Section 124‑A of the P. P. C. is Intended as much to protecting the people against agitators as it is to maintain the stability of the Government. (c) and (d).‑As regards the points at (c) and (d), reference may he made to Emperor v. Bhaskar Balwant Bhopatkar I L R 30 Bom. 421, Arjan Singh v. Emperor A I R 1930 Lah. 186, Murshi Singh v. Emperor A I R 1936 Oudh 347 and Manomohan Ghose v. Emperor I L R 38 Cal.

253. Wherein It was laid down that changes in policies and changes in measures are liable to criticism and to criticise and urge objections to them is a free right of a person but any effort which aims at impairing the confidence with which the public is entitled to look to Government is within the mischief contemplated by section 124‑4 of the P. P. C It is open for example to a writer to criticise any policy of the Government as permitted by Explanations to section 124‑A, P. P. C., but if he proceeds to attribute base motives to Government of having deliberately ruined the subjects etc., he will be liable to be punished. Similarly, it is not fair to attribute every calamity that falls to the country and peoples' suffering to the Government. A man may comment upon any measure of Government legislative or executive and freely express his opinion upon it. But if he in the course of comments holds up the Government itself to the hatred of his listeners‑as for instance by attributing to it every sort of evil and misfortune suffered by the people, accusing it of hostility and endurance to the people, then he is guilty under section 124‑A, P. P. C. and the Explanations will not save him. It is further to be remembered that the gist of the offence under section 124‑A, of P. P. C. lies in the intention of the speaker or the writer. Where a person says in his speech that he himself is the follower of the precept of non‑violence but at the sumo time covertly praises disaffection towards State and where throughout his speech he insinuates various disabilities as for example of everyday life to be duo to the present Government, there is an intention on his part to bring the Government into hatred and he commits an offence. It may further be pointed out, whether the words are seditious or not, 9s to be determined by the Judge and is not to be left to the judgment of witnesses. See Sree Krishna Doss v. Chandook Chand (I L R 22 Mad. 334). For other cases on the subject in hand reference may be made to The State v. Sardar Ataullah Khan Mangal (P L D 1967 S C 78). State v. Abdul Ghafar Khan (P L D 1957 Lah. 142), Toffazzal Hussain v. Province of East Pakistan and others (P L D 1965 Dacca 478) and Ali Muhammad Khadim v. The Crown (I L R 1950 Lah. 406) (allegations that Government was enemy of Islam.) The Speech:

7. Proceeding to examine the speech‑--(for the limited purpose of bail)‑‑from the material placed on the record to which both parties freely referred, my view in the light of the above‑mentioned principles, after construing it very liberally and even extending the benefit of doubt to the accused‑(which as laid down in Amir v. The State (P L D 1972 S C 277) should be extended in bails, that prima facie it does fall within the mischief of the law and is such which brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government. It in so many words calls the present Government as a " " and provoked the people by asking. It purports to involve the Government in the alleged murder of Abdul Waheed and stated that when no concern was shown for his medical treatment (by the authorities) it was said, "let him die,: About Shorish Kashmid, it was attributed to Government that it said, "we want his dead body". About murder of Dr. Nazir Ahmad of D. G. Khan, it was alleged that the Government had said, "he has become intolerable, he must be silenced" and "", that is he was killed. It was further said: that according to people, the killer was also a men of the Police. The speaker said that God knows how many promotions he‑

(that is the man of the Police, who had killed Dr. Nazir Ahmad) had been given. Regarding contemplated enquiry into Kh. Rafiq's murder, by a High Court Judge, it was stated that now no evidence was available And that: After making narration of these matters, it was stated:‑ He then posed a question and asked, is he who harbours an offender not involved in the same offence? The speaker openly attributed collusion of President Bhutto with Sh. Mujib‑ur‑Rehman and accused him of being responsible for the separation of East Pakistan. The speaker then posed a question and said: He stated that similarly the nation could rightly suspect that the Iraqi smuggled arms were meant for Peoples Guard. He stated that recent propaganda on Radio and Television was a part of Russain. Conspiracy and that the Government was in collusion with Russia. He addressed Mr. Bhutto about his relations with Russia and said, "". The speaker accused: President Bhutto of having collected Qadianis on his right and left and said " ". The campaign on Radio and Television by the Government, according to the speaker, was in fact a campaign to cut Pakistan. He stated that the real Governor of Punjab was not Mr. Khar but Mr. Javaid‑ur‑Rahman: He said that' Mr. Bhutto had been "Foreign Minister" of Yahya Khan. The speaker stated that Mr. Bhutto had wrecked the Pakistan Army, half of which had been imprisoned by India and the remaining half was being made eunich and the programme which had been made in this respect was that a Qadiani command should be Imposed on the Army. Air Force was already in the command of Qadianis. Tikka Khan was just like a piece of paper. According to the speaker, the situation which had been created in Baluchistan and N. W. F. P, was intended to blacken the face of Tikka Khan. After this, the speaker forestalled that the land forces would also be given under the charge of a Qadiani. The speaker then in. detail made venomous attack on Qadianis. The speaker then administered a threat and said that The speaker then addressing the President said: At another place he said: After referring to the judgment of the Karachi High Court, in Altaf Gauhar's case, the speaker said:‑ The speaker then referred to the recent contemplated recruitment of Magistrates and said: (The factual position, however, is that the recruitment of Lawyer Magistrate is being carried out through Public Service Commission in the proceedings of which these days, two learned Judges of this Court are also participating). The speaker then accused that the Government had prepared Federal Police for doing unmoral acts with young boys. The speaker further said Actually, this cinema was transferred to Mr. N. Z. Ahmad as decided by the Supreme Court in Mian Rafi‑ud‑Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (P L D 1971 S C 252). The speech suggested that Mr. Bhutto had not run the Government. He then said:

8. These are some of the salient features and aspects of the speech which otherwise is quite lengthy but as I am to examine it only within a limited scope of bail, therefore, I need not go further deep into it. Suffice it to say that an overall effect of the whole of the speech is that it makes the Government responsible for all evils which are prevalent in the Country. It purports to create hatred, contempt and disaffection against the Government of the day in various manners and, as such, prima facie there do exist reasonable grounds for believing that the petitioner has been guilty of an offence under section 124‑A, P. P. C. which is punishable with transportation for life as contemplated in section 497 of the Code of Criminal Procedure. He is, therefore, not entitled to be released on bail as laid down in the said section.

9. It is to be pointed out that usually a petition for bail of an arrested accused is not entertained directly by this Court and we generally insist that before coming to this Court the accused must approach the subordinate Courts in the first instance. This procedure, however, is subject to certain excep tions all of which need not be enumerated here and only one which is attracted in this present case may be alluded to, and that is, that where an accused was arrested as a measure of preventive‑detention but the relevant detention order was later on rescinded, of which rescission, the disclosure was made only to this Court when the habeas corpus matter came up for consideration, there if the accused who is surprised in this manner by the prosecution itself, files an application for being, released on ball, the rule of directing the accused to approach the Courts below may not be insisted upon. The present case being of this category was thus entertained by this Court direct. It is to be pointed out that rightly no objection on this score throughout the hearing of this petition was raised by the respondent, but I have added this note, lest it may become a precedent for approaching this Court directly irrespective of any special features of the present or other kind.

10. Whatever has been written above, as repeatedly men tioned hereinbefore, is meant only for the purpose of the adjudication of the matter of bail. This order, therefore, shall not stand in the way of the learned trial Court in taking any view it likes on factual and legal plans in the light of the evidence which may be produced before it by the parties or with regard to the pleas which might be raised before it.

11. The result is that this petition has no merit and is dismissed. K. B. A. Petition dismissed.