P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

Khan Abdul Ghaffar Khan, called "Bacha Khan" and "Fakhr‑i‑Afghan" by his followers and to be referred to in the sequel as the accused, the 67‑year old younger bother of Dr. Khan Sahib, the first and the present Chief Minister of the newly‑created Province of West Pakistan, was arrested in the third week of June 1956, under the orders of Mr. Sher Afzal Khan, Additional Commis sioner, Peshawar, who had been appointed a Special Magistrate by the Governor of West Pakistan to try cases of sedition and allied offences against the accused. Fourteen complaints were instituted against the accused, one by the Public Pro secutor, Mardan, and the rest by Mr, Gh4,zanfar. Ali, who was Public Prosecutor, Peshawar, but has been appointed a Special Public Prosecutor for the Province, of, West Pakistan for the purposes of the cases against the accused and it was as a result of complaints presented in his Court that Mr. Sher Afzal had the accused arrested. The case against the accused were pending in the Court of the Special Magistrate when an application was made to this Court on behalf of the State that because difficult and important questions relating to the interpretation of the newly‑enacted Constitution of the Islamic Republic of Pakistan and of law were likely to arise in the trial of the cases, they should be heard by this Court in the exercise of its extraordinary original criminal jurisdiction. The appli cation for transfer (Cr. Miscellaneous No. 731 of 1956) was heard by my Lord the Chief justice, who directed that the cases be heard by this Court, whereupon the records were sent for and the cases registered in this Court as Criminal Originals Nos. 10 to 23 of 1956 and His Lordship the Chief Justice nominated me to try them. Proceedings started before me on 3rd September 1956, and three Advocates, namely, Mr. Mahmud Ali of Lahore and Arbab Sikander Khan and Mr. Abu Talib of Peshawar, appeared for the accused, while Qazi Muhammad Aslam and Mr. Ghazanfar Ali appeared for the State. Mr, Abu Talib attended at only a few hearings of the cases, but Mr. Mahmud Ali, assisted by Arbab Sikander Khan continued to defend the accused till the prosecution evidence finished when Arbab Sikander Khan also dropped out and Mr. Amir zada, Advocate from Peshawar, joined Mr. Mahmud Ali and was left in almost complete charge of the defence from 27th November 1956, to 4th December 1956. On the day that the proceedings against the accused started before me, Qazi Muhammad Aslam Advocate, senior counsel for the State, stated, that in the first instance, he intended to lead evidence with regard to the speeches made by the accused at village Urmur Payan in the District of Peshawar on 5th June 1956. (Cr. O. 10 of 1956), village Nawan Killi in the District of Mardan on 24th March 1956, (Cr. O. 16 of 1956) and in village Gumbat in the District of Mardan. on 20th March 1956, (Cr. O. 18 of 1956). On 18th October 1956 however, Qazi Muhammad Aslam stated that he wanted to lead evidence with regard to the speech made by the accused on 14th February 1956, in village Mian Khan (Cr. O. 11 of 1956) and as there was nothing in law to prevent the trial of that case, I allowed the prosecution to lead evidence therein, at which the accused said that he did not intend to defend himself in that case. I recorded the statements of the prosecution witnesses in Criminal Original No. 11 of 1956, but took no further proceedings in it because it appeared to me that whatever the judgment in the three cases in which evidence had been recorded already (Cr. Originals Nos. 10, 16 and 18 of 1956) might be, the State would not want to proceed against the accused in the other cases. The accused continued to take part in the proceedings in the other three cases till 4th December 1956, when on my refusing to allow Mr. Amirzada to ask questions from a defence witness, the answers to which were, in my opinion, entirely irrelevant for the purpose of the cases against the accused, the accused stated that he did not intend to take any further part in the proceedings, but with that aspect of the matter I will deal at a subsequent stage. By this order I will dispose of Criminal Originals Nos. 10, 16 and 18 of 1956, because the parties in these three cases area the same and many of the questions that arise for determination in them are common. The evidence on the record in each of the three cases shows that the accused, who is a well‑known figure, was ordered to be detained in prison for three years on 15th June 1948, under the orders of Major Allahdad Khan, who was then the Deputy Commissioner of Kohat, on refusal to furnish security demanded under section 40 of the Frontier Crimes Regulation. A few months after the order of the Deputy Commissioner, Kohat, the Central Government passed an order under the Bengal State Prisoners Regula tion III of 1818, against the accused and it was in January, 1954, that the accused came out of his incarceration. On his release in January 1954, restrictions on the movements of the accused were placed by the Central Government and he was not permitted to enter the area which comprised the North‑West Frontier Province, but that restriction .was removed in the month of July 1955, and on the 17th of that month the accused entered the now defunct North‑West Frontier Province. The Province of West Pakistan, which was created by the Establishment of West Pakistan Act, 1955, which received the assent of the Governor‑General on October 5, 1955, came into being on 14th October 1955. It is in evidence that after the Province of West Pakistan, popularly known as One Unit, came into being, the accused undertook a tour of the areas which had previously formed the North‑West Frontier Province with the avowed object of mobilising public opinion against the One Unit and formed a party known as the Anti‑One‑Unit Front It is in. evidence in all the three cases (see Exh. P, Q. in Cr. O. 10 of 1956, Exh. P. O. in Cr. C. 16 of 1956 and Exh. P. C. in Cr. O. 18 of 1956) that from 14th February 1956 to 6th June 1956, the accused made no less than 84 speeches almost ail of which were made in villages. Sub‑Inspector Ghulam Jilani of the C. I. D. had been deputed to cover the tourage of the accused and it is the prosecution case that he took down, in Urdu shorthand, notes of the speeches made by the accused in Pushto. In early stages of the trials, the question arose as to what other speeches and writings of the accused were admissible in evidence and relevant for the purpose of proving his intention and state of mind when making the speeches which were the subject of the trials, and after hearing arguments I passed a short order on 10th September 1956, detailing what speeches and writings of the accused could be brought on the record to prove his intention, etc. I said in that order that I will give my reasons, therefore, at a later stage and I would do so before dealing with the other questions that arise. In the complaints it was stated that the accused had opposed the creation of Pakistan and intended that an independent territory, known as `Pakhtoonistan should be carved out of the territories of Pakistan and that not only had he in the speeches, which are the subject of the complaints, made attacks not allowed by law against the Government estab lished by law in Pakistan, but had also attempted to create enmity and hatred in the minds of the Pathans against the Punjabis. It was said in the complaints that because of his above‑mentioned acts, the accused had been guilty of offences under sections 123‑A, 124‑A and 153‑A of the Pakistan Penal Code. The learned counsel for the State wanted to lead‑1 evidence with regard to the speeches and writings of the accused prior to the speeches which were the subject of the trials with the object of showing that before 14th August 1947, the accused was opposed to the creation of Pakistani, so that Partition of India may not take place, and after he was convinced that Pakistan will materialise, advocated the creation of an independent State for the Pathans, which was, to be carved out of the territories now comprising Pakistan and was to be known as 'Pakhtoonistan.' The learned counsel said that the writings in which the accused indulged in 1946 and 1947 and some speeches made by him in 1948 and 1956 would show what he meant by the word Pakhtoonistan used by him in his speeches which were the subject of the trials. It was contended on behalf of the State that the speeches and writings which were sought to be brought on the record were relevant under sections 14 and 15 of the Evidence Act and some judicial decisions were cited in support of the contention that the evidence mentioned by the learned counsel for the State could be brought on the record. Mr. Mahmud Ali, learned counsel for the accused, con tended that the speeches and writings of the accused prior or subsequent to the date on which the speeches which were the subject of the trials, were made would not be relevant unless they are used to clear up an ambiguilty in a speech which is the subject of a trial. He argued that section 196 of the Code of Criminal Procedure and Article 6 of the Constitution of the Islamic Republic of Pakistan would be circumvented if the speeches and writings of the accused other than that about which the accused was being tried in a particular case were to be brought on the record and, therefore, even if any speech or writing of the accused be relevant under sections 14 and 15 of the Evidence Act, evidence with regard to it could not be brought on the record. I will deal first with the contentions of the learned counsel for the accused based on section 196 of the Code of Criminal Procedure and Article 6 of the Constitution. The effect of section 196 is that offences under sections 123‑A, 124‑A and 153‑A of the P. P. C. cannot be taken cognisance of by a Court unless upon complaint made by order of, or under authority from the Provincial Government or some officer empowered by the Provincial Government in that behalf and the argument of Mr. Mahmud Ali was that as there was no order contemplated by section 196 of the Code of Criminal Procedure with regard to the speeches and writings of the accused which the prosecution wanted to be treated as evidence under sections 14 and 15 of the Evidence Act, section 196' precluded the Court from taking them into consideration This contention is untenable because, if the speeches and writings, to the bringing of which on the record Mr. Mahmud Ali objects, are allowed to be brought on the record, they will' be used only as evidence with regard to some of the matters mentioned in sections 14 and 15 of the Evidence Act and no offence committed by reason of those speeches or writings will be taken cognisance of. The fact that a previous o: subsequent speech or writing of a person, who is being triec for any of the offences for which the accused is being triec in the present cases is brought on the record as a piece of evidence relevant under sections 14 and 15 of the Evidence Act, does not mean that cognisance is being taken of the offences committed by reason of those speeches or writings, because, for the purposes of the Code of Criminal Procedure cognisance of an offence is taken by a Court only if proceedings are taken by the Court with regard to that offence. I would hold, therefore, that the argument of the learned counsel for the accused that when section 196 of the Code of Criminal Procedure, 1898, was enacted sections 14 and 15 of the Evidence Act, 1872, were to some extent impliedly repealed, is without force. Article 6 of the Constitution of the Islamic Republic of Pakistan was invoked by Mr. Mahmud Ali in the following manner. He said that an act which constitutes an offence which cannot be taken cognisance of by a Court unless sanction for prosecution which the law enjoins is accorded, cannot be deemed to be an offence till sanction is granted, and, therefore, if a speech or writing of the accused prior to 23rd March 1956, on which date the new Constitution came into force, which could have been made the subject of a prosecution was not so made, it will be presumed that it was not an offence, and if evidence with regard to it is led in the present trials, the spirit, if not the letter of Article 6 of the Constitution would be violated. This contention cannot be accepted for more reasons than one. The mere fact that an act which is an offence did not become the subject of a trial for some reason or the other does not divest it of its criminal character and it was is and will remain an offence though it may have gone untried and unpunished. Moreover, what Article 6 of the Constitution prohibits, inter alia, is the punishment of a person for an act which was not an offence at the time it was done and it can hardly be doubted that if some speeches and writings of the accused are brought on the record as pieces of evidence for the purposes mentioned in sections 14 and 15 of the Evidence E Act, it will not amount to punishing him for making those speeches in the sense mentioned in Article 6 of the Consti tution, I would hold, therefore, that neither of the two con tentions of the learned counsel for the accused has any force. ; I have said already that besides sections 14 and 15 of the Evidence Act, the learned counsel for the State relied on certain judicial decisions. All these judicial decisions and a good many more are mentioned in the commentary at pages 134‑135 of Munir's Law of Evidence (3rd Edition) under the heading "Treason, sedition defamation, etc." and the decisions on which the commentary is based are detailed in the footnotes. The commentary runs as follows:-- " Cases of treason, sedition and defamation are governed by a common principle. On the particular act or utterance being proved or conceded, intent is the only ingredient to be proved to constitute the offence. Thus, on a charge of sedition prior or subsequent writings not included in the charge are relevant to determine intention. In prosecutions for political offences, political views of the accused are relevant on the question of his intention. Seditious intent of the accused may be inferred from the speech, article or letter charged or from that speech, article or letter considered in conjunction with what the accused has said, written or published on other occasions." I am in respectful agreement with the judicial decisions on which the passage reproduced above is based; but it appears to me that the present cases do not attract them as fully as the learned counsel for the State contended that they did. The reason why previous or subsequent acts are made relevant if they fall within the four corners of sections 14 and 15 of the Evidence Act is obviously this that those acts resemble in all material respects the Act which is the subject of the trial. I cannot bring myself to believe that the framers of the Evidence Act intended that even acts which were not criminal at the time they were done may be used as evidence against a person who does those acts at a time when they happen to have been made criminal offences. If a person has been poisoned by drinking medicine given to him by a doctor and the question arises whether the poison was given accidentally or intentionally, the fact that on a previous occasion when that patient was suffering from a disease for which a poisonous drug was the only cure, a poisonous drug was administered to him by the doctor would be entirely irrelevant to determine the question that arose, because the administration of the poisonous drug on the previous occasion was not culpable. I am of the view that before the acts of person, who is facing a criminal trial, be those acts previous or subsequent to the one which is the subject of the trial, can be used against him for any of the purposes mentioned in sections 14 and 15 of the Evidence Act, the previous or c subsequent acts should resemble the main act not only in fact but also in the eye of law, because it could not be the intention of the law that what was innocent at the time it was done may be used as a sinister act at a subsequent time in a Court of law. It is well known that before Pakistan came into being, some Muslims were opposed to its creation and though such Muslims may have been guilty of a politically unpardonable disregard of the best interests of the Muslims of the sub continent that was British India, they were committing no offence under any law by expressing their views on a measure which was of unprecedented importance and consequence. It would be un-judicial to assume that all those Muslims who opposed the creation of Pakistan were actuated by anti -Muslim motives of a permanent character, and as opposing the creation of Pakistan is not the same thing as trying to harm it after it has been placed on the map, the views that the accused ventilated in his speeches and writings before the creation of Pakistan can have no relevancy in the present cases against him. The un-enacted and unwritten Law of Evidence acted upon by the layman may be that those who opposed the creation of Pakistan were, are, and will continue to be its enemies, even though residing therein and taking all possible benefits from it: and I do not doubt that in some cases the layman's deduction based on his own principles of evidence may be right, but what is relevant evidence against the accused for the purposes of the present cases is to be deter mined in the light of the provisions of the Evidence Act, 1872, and no other consideration can be pressed into service for using against him the writings and speeches which at the time when they were indulged in were entirely blameless in the eye of law as it then stood. I am further of the opinion that the political views which the accused held before the partition of British India are just as irrelevant for the purpose of the present cases as his pre‑partition speeches and writings because those views were held at a time when Pakistan had not materialised. The learned counsel for the State urged that as on 3rd June 1947, the British Government had in a statement released though Lord Mountbatten, the then Governor‑General of British India, conceded the demand of the British‑Indian Muslims for a separate home, the political views, speeches and writings of the accused after 3rd of June 1947, would, in any case, be relevant, but I cannot agree with this contention. It is true that the statement of the British Government released on the 3rd of June 1947, made it clear that a separate territory could not be denied to the Muslims who were not prepared to be left in the bondage of the non -Muslim majority, but the position with regard to the North West Frontier Province was not clear. The above‑mentioned statement of the British Government would show that two of the three members of the Constituent Assembly elected from the N.‑W.F.P Province in accordance with the British Cabinet Plan dated 16th of May 1946, were attending the Constituent Assembly evidently because of the influence of the Indian National Congress on the persons who held the reins of Government in the N.‑W.F. Province, but as the majority of the residents of that Province were Muslims, even the British Government considered that it would be unjust if the fate of millions of Muslims residing in the N.‑W.F. Province were left in the hands of members of the Legislative Assembly of the Province and, therefore, a referendum was chosen as the method by which the position of that Province was to be determined in the event of the Partition of the Punjab being decided upon by the members of the Legislative Assembly of the Punjab. It is true that even before the result of the referendum was announced, no one had any serious doubts that the vote of an overwhelming majority of the Muslims of the N.‑W.F.P. Province would be in favour of Pakistan, but till the result of the referendum was declared no one could be certain what it would be. I am of the opinion, therefore, that neither the political views nor the speeches and writings of the accused prior to 14th of August 1947, on which date Pakistan came into being, would be relevant evidence against him under sections 14 and 15 of the Evidence Act. Now sections 123‑A, P. P. C., the material part of which is in following terms: "(1) Whoever, within or without Pakistan, with intent to influence, or knowing it to be likely that he will influence, any person or the whole or any section of the public, in a manner likely to be prejudicial to the safety of Pakistan, or to endanger the sovereignty of Pakistan in respect of all or ‑any of the territories lying within its borders, shall by words, spoken or written, or by signs or visible representation, condemn the creation of Pakistan by virtue of the Partition of India which was effected on the 15th day of August 1947, or advocate the curtailment or abolition of the sovereignty of Pakistan in respect of all or any of the territories lying within its borders whether by amalgama tion with the territories of neighbouring States or otherwise, shall be punished with rigorous imprisonment which may extend to 10 years and shall also be liable to fine," was not brought on the Statute Book till the end of October 1950, and it follows, therefore, that the acts made punishable by that section were not an offence before that date. I have already given my reasons for not using against the accused his political views, speeches and writings of the time when they were blameless in the eye of law and it appears to me that whatever the intention of the accused might have been when he used the expression ' Pakhtoonistan ' before section 123‑A of the P. P. C., was inserted the meaning of that expression that can be used against him is that which it had when he used it after section 123‑A of the P. P. C., came on the Statute Book." It is for the reasons given above that I passed the short, order mentioned above on 10th of September 1956, in the following terms:‑ For reasons to be recorded later, I hold tat in order to determine the intention or knowledge of the accused, the following facts will be relevant :‑-- (1) For the purposes of section 123‑A of the P. P. C., to determine the intention of the accused when using the word 'Pakhtoonistan' in the speech which is the subject of the trial, speeches and writings of the accused after coming into force of Act LXXI of 1950, by which section 123‑A was inserted. (2) For the purposes of section 124‑A of the P. P. C. the writings and speeches of the accused after 14th of August 1947. (3) For the purposes of section 15 3‑A of the P. P. C. to determine the intention of the accused when using the F word 'Punjabis' in the speech which is the subject of the trial, speeches and writings of the accused concerning the of creation of the Province of West Pakistan. (4) For the purposes of all or any of the above‑mentioned offences, speeches or writings of the accused before or after the speech which is the subject of the trial, if such writings or speeches relate to' matters similar to those to which the speech relates, but subject to what has been said in paragraphs (7) to (3) above." Before dealing with the facts of each case separately. I would deal with certain points which are common to all the three cases being disposed of by this judgment. All the three complaints were presented in Court by Mr. Ghazanfar Ali, Special Public Prosecutor, who at the time he presented them was, as already mentioned, the Public Prosecutor. Peshawar. All the three complaints were presented in Court after Mr. Ghazanfar Ali had received authorisation to lodge them from Mr. M. H. Soofi, Home Secretary to the Govern ment of West Pakistan. Mr. Soofi was not produced as a witness and his signatures on the documents which authorised Mr. Ghazanfar Ali to institute the complaints, were proved by Mr. Ghazanfar Ali who, appearing as the first witness for the prosecution in all the three cases, stated, inter alia, that he was acquainted with the handwriting of Mr. Soofi, from whom he had received official communications and whom he had seen writing on some occasions. The statement of Ghazanfar Ali with regard to the documents which authorised the institution of the complaints bearing the signatures of Mr. Soofi, is unambiguous, and there is the fact that when I questioned Mr. Mahmud Ali, when he made a request that Mr. Soofi, be summoned as a Court witness, whether the defence dispute that the documents which authorise the institution of the complaints bore the signatures of Mr. Soofi, he stated, as would be apparent from my order dated 18th of October 1956, in Cr. O. 18, of 1956, that the defence did not challenge the assertion of the prosecution that the documents bore the signatures of Mr. Soofi. The state ment of Mr. Ghazanfar Ali that the documents which had authorised him to file the complaints bore the signatures of Mr. Soofi is convincing and in view of the fact that if that were not so, the statement would not have gone unchallenged, I hold that the documents authorising the institution of the complaints bore the signatures of Mr. Soofi. However, in his statement referred to above, Mr. Mahmud Ali indicated that if Mr. Soofi appeared as a witness, the defence would be able to prove that there were legal flaws in the documents which authorised the institution of the complaints, but he did not detail what flaws he hoped to be able to prove. As the defence chose to boycott the proceedings on 4th of Decem ber 1956, it has been left to me to consider the question without any assistance from the side of the defence. I have carefully considered the documents which authorised the institution of the complaints and can find no error or omission therein which might make the trial of the cases illegal. The docu ments indicate that they were issued under the authority of the Governor of West Pakistan, and as, under the rules of business, Secretary to the Government of West Pakistan in the relevant department can authenticate orders for the purposes of Article 74 of the Constitution of the Islamic Republic of Pakistan, it has to be presumed, because of that Article, that the documents were issued after what has been stated therein to have been done was done. Under section 196 of the Code of Criminal Procedure, the Provincial Government has been given the power to lodge or authorise the lodging of a complaint for offences for which the accused is being tried. The expression, 'Provincial Government', is not defined in the Code of Criminal Procedure or the P. P. C., but Clause 43 (a) of section 3 of the General Clauses Act (X of 1897) defines it. The relevant part of the definition is in the following terms: "Provincial Government‑

(a) as respects anything done or to be done after the establishment of the Federation of Pakistan, shall mean, in a Governor's Province, the Governor, and in a Chief Com missioner's Province, the Central Government." It appears to me that sub‑clause (a) of Clause 43 (a) of section. of the General Clauses Act is relevant for the present purposes and the fact that the Federation mentioned in that clause meant the Federation created on 14th of August 1947, cannot affect the application of the sub‑clause to the present cases, because the orders under consideration were passed after that Federation had cone into being and for the question under consideration it is immaterial that the Govern ment of India Act and the Indian Independence Act, which brought that Federation into being have been repealed by Article 221 of our new Constitution When Mushtaq Ali, D. S. P., C. I. D. (P. W. 8) in Cr. O. 18, of 1956, was cross‑examined after the charge, the last question asked from him by Mr. Mahmood Ali, the Senior Counsel for the defence on 18th of October 1956, was if it was not a fact that Dr. Khan Sahib, the Chief Minister of West Pakistan, had in. a speech made by him at Peshawar, said that no Minister of the West Pakistan Government had sanctioned the prosecu tion of the accused, to which the answer was in the negative If the object of the accused was to show that the prosecution was instituted without consultation With the Ministry, it was open to them to summon Dr Khan Sahib, to whom the above utterance was attributed, but they did not care to do so. There is not an iota of evidence that the Cabinet was against the prosecution of the accused and even if it were proved that Dr. Khan Sahib disowned the connection of the Provincial Cabinet with the prosecution of the accused, section 71 (2) of the Constitution of the Islamic Republic of Pakistan, which lays down that the question whether any, and if so, what advice was tendered by the Cabinet or a Minister to the Governor shall not be inquired into in any Court would have precluded me from going into the question. The authenticity of the documents authorising the prosecution of the accused has, as already mentioned,, to be presumed, and I hold, therefore, that the prosecutions do not suffer from 'any defect of the kind hinted at; but not substantiated, by the 'defence. When I framed charges against the accused, I did not specify what portions of the speech, which was the subject of the trial, were considered to offend against the sections of the Penal Code under which the charges were being framed against the accused. It is, no doubt, desirable that portions of a speech which are considered objectionable should be specified in the charge, but the law contained in Chapter XIX of the Code of Criminal Procedure, 1898, wherein matters relating to charge are dealt with, does not make this obliga tory. Moreover, as the rule is that in judging the criminality of a speech, which is stated to amount to sedition or allied offences, the speech is to be considered as a whole, the specification of portions of speech in the charge would upward to be unnecessary. The rule that the speech is to be con sidered as a whole is very wholesome, because a portion of the speech, if taken out of the context, may look highly seditious which it may never have been intended to be while a portion which talon oat of the context, may appear wholly innocent, may in the context be very objectionable. In addition, there was the fact that each of the complaints had attached to it an appendix wherein the objectionable portions were detailed. The non‑mention of the passages considered objectionable in the charge sheets cannot have misled the accused in his defence, specially because elaborate arguments were addressed at the time of the framing of the charges against the accused and the learned counsel for the State had been directed by me to mention in detail all portions of the speeches which brought the case within the purview of any of the sections for which he wanted the accused to be charged. While on the subject of the charge‑sheets, I might as well mention a matter which relates to only two of the three cases. In all the three cases, charges were framed against the accused on 27th of September 1956, and while I framed charges for all the three offences, namely, sections 123A, 124A and 153A of the P. P. C. in Cr. O. 18 of 1956, which arose out of a speech made on 20th of March 1956, I framed charges under sections 123A and 124A but not under section 153A of the P. P. C. with respect to the speech made on 24th of March 1956, which is the subject of Cr. O. 16 of 1956 and the speech made on 5th of June 1956, which is the subject of Cr. O. 10 of 1956. The reason why on 27th September 1956, I did not frame a charge under section 153A of the P. P. C. in Cr. O. 10 of 1956 and Cr. O. 16 of 1956 may be briefly stated. The material part of the section 153A, as it stands on the Statute Book, is in the following terms: "Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of Her Majesty's subjects, shall be punished with imprisonment, which may extend to two years, or with fine, or with both." In my order dated 27th September 1956, in Cr. O. 10 of 1956 and Cr. O. 16 of 1956, I expressed the view though the point had not been raised by the defence, that because the section as it stood made punishable the pro motion of hatred and ill‑will between different classes of subjects of Her Majesty and the citizens of Pakistan were no longer such subjects since 23rd March 1956, when the new Constitution came into force, though some residents of. Pakistan might be, the section could not be invoked by the prosecution unless there had been adaptations and additions under section 224 of the Constitution or amendments of the section either by an Ordinance promulgated by the President or by an Act passed by the Parliament. I stated in that order that if the learned counsel for the State could show me law which would make me change the tentative opinion expressed by me in that order, I would be prepared to reconsider the order and frame charges under section. 153. of the P, P. C also against the accused, On 12th of November 1956, the President issued his Order XV of 19.56, which reads as follows:-- "1. (1) This Order may be called the Removal of Difficulties (Adaptation) Order, 1956. (2) It shall come into force at once, and shall be deemed to have taken effect on the twenty‑third day of March, 1956.

2. During a period of two years from the commencement of the Constitution, Article 224 of the Constitution, shall have effect subject to the following amendment, namely :‑ After Clause (4) of Article 224, the following new clause shall be added, namely :‑ (5) Any Court, tribunal or authority required or empowered to enforce a law continued in force under clause (1) shall, notwithstanding that no actual adaptations have been made in such law by an Order of the President under clause (2) for the purpose of rendering it consistent with the provisions of the Constitution, construe the law with all such adaptations as are necessary for the said pur pose: Provided that if any question arises regarding the adaptations with which such law should be construed for the said purpose, the question shall be referred to the Federal Government if the law relates to a matter enumerated in the Federal List or the Concurrent List in the Fifth Schedule and to the Provincial Government in any other case, and the decision of that Government on any such reference shall be final." A few days after the issue of the above Order by the President, applications were put in by Qazi Muhammad Aslam, the senior counsel for the State that the charges framed against the accused in Cr. O. No. .10 of 1956 and Cr. O. No. 16 of 1956, in which section 153A had not been mentioned, be amended by the addition of charges under that section. This prayer was opposed by Mr. Mahmud Ali, senior counsel for the defence, but acting under section 227 of the Code of Criminal Procedure I added the charge under section 153‑A of the P. P. C. to the charges already framed in the two cases but left the consideration of the necessity and the effect of the President's Order XV of 1956 to the time of the final disposal of the cases. Mr. Mahmud Ali prayed that the trial of the cases be stayed, but because I did not consider it necessary to examine any further evidence and was of the view that proceeding immediately with the case was not at all likely to prejudice the accused in his defence, I did not accede to the request, and acting under section 228 of the Code of Criminal Procedure proceeded with the trial of the cases. However, I made it clear to the defence that if they considered that the recall of any or all of the witnesses for the prosecution was necessary for the purpose of cross‑examination, I would be perfectly willing to recall them to afford the defence that opportunity. No request was at any stage after the addition to the charges made that any of the witnesses for the prosecution should be recalled for crows‑examination, but in view of the fact that a thorough cross‑examination had been resorted to when the witnesses for the prosecution made their statements before the framing of the charges, the omission of the defence to have any of the prosecution witnesses recalled for cross‑ex amination after the addition of the charge under section 153‑A of the P. P. C. has no indication of a desire of non- participation in the trials, When the accused was called upon to produce defence, he, in the first instance, put in a list of 658 witnesses in each of the three cases though all those witnesses were common to .all the cases. This number was so large that I considered it necessary to examine the accused to find out why he wanted to produce such an unprecedently large number of witnesses. When I took down the statement of the accused about this matter on 25th of October 1956, he could not throw adequate light on the reasons for summoning such a large number of witnesses and said that his counsel, Mr. Mahmud Ali, would be able to explain why all those witnesses were necessary. I took down the statement of Mr. Mahmud Ali and as I was satisfied that the large number of witnesses for the defence was being sum moned in order to delay the disposal of the cases and for defeating the ends of justice, I passed an order on 26th of Octo ber 1956, that the defence could not be allowed v summon such an inordinately large number of witnesses. Arbab Sikandar Khan, Advocate, who was present in Court on 26th of October 1956, put in a document which I marked 'X' and which is on the record of Cr. O. No. 10 of 1956, in which he mentioned the matters about which defence witnesses men tioned in the list will give evidence and I ordered that 14 witnesses mentioned in category I of the document 'X' will be summoned, as well as all those mentioned in category 2 of that list. Witness No. 20 out of the witnesses in category 3 was also to be summoned, but with regard to the witnesses men tioned in categories 4 and 5, I directed that the defence will be allowed to produce 10 witnesses mentioned in those categories in each of the cases, the names of which 30 witnesses were to be given to the Deputy Registrar of this Court by the next morning. The defence did not give the names of these 30 witnesses within the time allowed by me, but many days later put in a list of about 30 defence witnesses in each case. All those witnesses were summoned and the defence evi dence started on 27th of November 1956. The defence had examined five witnesses in Cr. O. No. 10 of 1956, of whom only one was examined by Mr. Mahmud Ali and had examined 16 witnesses in Cr. O. No. 16 of 1956, all of whom were examined by Mr. Amirzada, Advocate, and it was when the statement of the 17th witness for the defence was being recorded on 4th of December 1956, that the accused took up the attitude that he will no longer participate in the trial of the cases and would not produce any more defence witnesses. He made this statement soon after I had refused to allow Mr. Amirzada to ask Fakira Khan, who was D. W. 17 in Cr. O. No. 16 of 1956, why he joined the Awami League and gave up the Muslim League. Before this question was asked, Mr. Amirzada had asked that witness if he was aware of any intrigues in connection with the formation of the Ministry in the N.‑W. F. P. during the time that Mr. Abdul Qaiyum Khan was the Chief Minister of that Province. I asked Mr. Amirzada what relevancy the intrigues, if any, would have in the present cases and as he could not give any reply to that question, I declined permission for the asking of that question. When the accused took up his attitude of non cooperation and boycott, I told him that if he thought that there was any justification for the view expressed by him in Court that I had given more attitude to the counsel for the State than I was prepared to give to the counsel for the defence, two courses were open to him, one being that he could apply to the Chief Justice for taking the cases off my list and sending them to some other judge of this Court, and the second being that he could petition to the Provincial Government under section 527 of the Code of Criminal Proce dure for having the cases transferred to the other High Court, i. e., the one at Dacca. The accused replied that he had no intention of applying for the transfer of the cases from me either by petitioning to the Chief Justice or to the Provincial Government. A few days later he put in a document in which he said that he expected no justice from the Govern ment, because before these cases were started against him, Maj.‑Gen. Iskander Mirza, the President of the State, had sent a message to him that if he did riot desist from making speeches; drastic action will be taken against him, but said noth ing with regard to his not wishing to apply to the Chief Justice. One reason for the attitude of the accused in boycotting the proceedings in the cases probably was that it must have become clear to him that the defence witnesses he was pro during were to some extent damaging the cause of his party by blurting out certain acts which would show that the Khudai Khidmatgars were not as peace‑loving or God‑fearing organisation as their name would suggest. The accused also made a grievance of the fact that I had been asking a number of questions from the witnesses produced by the parties and was summoning persons as Court witnesses. I concede that 1 did ask a number of questions from the witnesses, but as the law permits a Court to ask questions from witnesses, there was no valid ground for the accused to feel aggrieved on that score. If the accused had been aware of section 165 of the Evidence Act, which permits a judge to ask any witness any question at any time, in any form, he would not perhaps have attached the significance he did to my asking questions from the witnesses. I asked a number of questions about the activities of the Khudai Khidmatgars and the Surkhposhes, because I wanted to see whether or not the treatment meted out to them after the creation of Pakistan, of which treatment the accused appeared to be making a grievance, was justified. I did summon some Court witnesses and the reason for this was that the accused took up the position in his statement dated 6th of September 1956, that some of the matters which he had mentioned in the speeches for making which he was being tried had actually occurred and impliedly pleaded that he was justified in proclaiming them to the world. The prosecution could not have been aware that the accused would take up this position and could not, therefore, lead evidence on those matters, and as I felt that if I allowed the evidence of the defence witnesses to be the only material on the record on matters which had assumed importance, I would be acting merely as a recording machine and not as a Judge, I summoned some Court witnesses. When I passed an order on 28th of November 1956, that Mr. Abdul Qaiyum Khan, the first Chief Minister of the North‑West Frontier Province after the creation of Pakistan, be summoned as a Court witness, the counsel for the accused expressed great elation and requested that Dr. Khan Sahib, the Chief Minister of West Pakistan, who had been replaced by Mr. Abdul Qaiyum Khan as the Chief Minister of the North‑West Frontier Province in the end of August 1947, and Sardar Abdur Rashid, the Finance Minister of West Pakistan, who had replaced Mr. Abdul Qaiyum Khan as the Chief Minister of North‑West Frontier Province, be also summoned to appear as Court witnesses but as I did not consider it necessary to call those gentlemen as Court wit nesses, I declined to do so. I had felt the necessity of calling Mr. Abdul Qaiyum as a Court witness because not only did the accused in his statement dated 6th of September 1956, plead that his object while making the speeches for which he was being tried was to show that atrocities had been committed when Mr. Abdul Qaiyum Khan was the Chief Minister of the North‑West Frontier Province, but some witnesses who were produced by the defence had made reference to some orders passed by Mr. Abdul Qaiyum Khan. The order summoning Mr. Abdul Qaiyutn Khan was recorded on 28th of November 1956, on the record of Cr. O. No. 10 of 1956. The accused had summoned some officials as defence witnesses and they had to produce certain documents in Court. In all the the three cases these witnesses had to appear in Court on dates subsequent to 4th of December 1956, on which date the accused announced his decision to terminate his participation in the proceedings of the cases and I examined those witnesses as Court witnesses, so that in spite of the attitude of the accused to non‑co‑operate, no documentary evidence which he believed was in his favour should be excluded from consideration. On 19th of December 1956, when Mr. Abdul Qaiyum Khan came in the witness box, the accused requested me that Mr. Abdul Qaiyum Khan should not be examined about the firing at Babra in the District of Peshawar about which some witnesses for the defence had given evidence, because, according to him, he wanted to petition to the Central Government for an inquiry about that incident. I declined to accede to this request becaus2, the question had become relevant in the present trials and having introduced the Babra incident himself, the accused did not appear justified after having produced witnesses to depose that the firing was unjustified, to shut out other evidence about it on the ground that an inquiry may possibly be ordered by the Central Government with regard to that incident. When the accused took up the attitude that he would no longer participate in the trial of the cases, Mr. Amirzada, and later on Mr. Mahmud Ali, asked for permission to withdraw from the cases and as the accused did not want then: as his defence counsel, I granted them that permission However, as some difficult questions of law arose in the cases, I requested Mr. Manzur Qadir and Mr. Mahmud All to address me amicus curiae on those questions. Mr. Manzui Qadir lent willing co‑operation, but Mr. Mahmud Ali had to be persuaded to lend co‑operation. His attitude in the, beginning was that as the accused did not want him to address' arguments he would rather not do so, and it was only when I pointed out to Mr. Mahmud Ali that his duty told the accused had terminated while his duty to this Court continued as long as he was an Advocate of this Court, he agreed to comply with my request. Mr. Manzurl Qadir addressed very learned and elaborate arguments on the difficult questions of law that arise in these cases, for which I expressed and again express my great gratitude to him. Mr. Mahmud Ali addressed arguments only on one point, and added that with regard to the others he adopted the arguments addressed by Mr. Manzur Qadir. No arguments were addressed to me from the side of the defence at the conclusion of the trial, but I am of the view that no important question of law that could arise has remained un-discussed by the learned counsel, because even at the stage of the framing of the charges lengthy arguments had been addressed to me by Qazi Muhammad Aslam, senior counsel for the State and Mr. Mahmud Ali, senior counsel for the defence. I am grateful to Mr. Mahmud Ali for the assistance given by him at my request but would add that my gratitude to him would have been many times more if he had accorded me without persuasion from me the willing co operation, which in my capacity as a judge of this Court I was entitled to get from him in his capacity of an Advocate of this Court. I now proceed to deal with the evidence in the three cases which are being disposed of by this judgment. I will take up first Criminal Original No. 18 of 1956, because the speech which is the subject of trial in that case was delivered on 20th of March 1956, and is the first in time out of the three speeches for making which the accused has been tried. This speech was delivered in Masjid Qazian in village Gumbat in the District of Mardan before an audience numbering about

120. The Home Secretary to the Govern ment of West Pakistan authorised Mr. Ghazanfar Ali to file a complaint about this speech by his writing dated 3rd of July 1956, which is Exh. P. A. on the record and the complaint Exh. P. B. was filed by Mr. Ghazanfar Ali on 6th of July 1956. The speech was made in Pushto and Ghulam Jilani, Sub- Inspector, C. I. D. (P. W. 2), who had been assigned that duty, took down notes of this speech in Urdu shorthand. These shorthand notes were attested by Muhammad Anwar (P. W. 3) and Sher Afzal (P. W. 4). The shorthand notes were rendered into longhand and the shorthand notes along with the longhand rendering, were sent to the C. I. D. Office at Peshawar, where they were received by Mushtaq Ali Shah D. S. P., who appeared as the eighth witness for the prosecu tion in this case. In order to prove the criminal intention of the accused, the prosecution led oral evidence that in 1948 he had described Pakistan as a "bridge of sand which could be demolished with one kick". This evidence was given by Fazal Azeem (P. W. 6) who was posted at Sawabi as a constable in the C. I. D. in 1948 and had in that capacity to take down notes of speeches made at places within his jurisdiction. The statement of Fazal Azeem (P. W. 6), was supported by Muhammad Yusuf (P. W. 5), who said that he had in 1948 in his capacity as an Area Officer received the record of the speeches made by the accused, which had been sent to him by Fazal Azeem (P. W. 6). and that he remembered that in some of those speeches the accused was recorded to have described Pakistan as a bridge of sand which could be demolished with one kick. P. W. 5 added that the record of the speeches the accused made in 1948 had been destroyed in 1950, about two years after the speeches had been made. The prosecution led evidence regarding the speeches of the accused made at village Qasmi on 16th February 1956, and village Topi on 6th April 1956, as well as with regard to a pamphlet known as "Paigham" issued by the accused. The record of the speech at Qasmi in shorthand is Exh. P. F. and in longhand Exh. P. H., while the shorthand notes of the speech at Topi are Exh. P.SG., and the longhand notes Exh. P. J. The "Paigham", about the printing of which evidence was given by Muhammad Husain (P. W. 7), proprietor of 'Manzoor‑e‑Am' Press, Peshawar, and the authorship of which was admitted by the accused in his statement, is Exh. P. K. on the record. The "Paigham" had been printed on 22nd of May 1956, and Ghulam Jilani (P. W. 2), said that in all the meetings addressed by the accused after that day he sold the "Paihham" to members of the audience for four annas each. When questioned about the speech, the accused admitted that he had made a speech at village Gumbat but added that the record kept by Ghulam Jilani was not faithful. He denied that he had any intention of creating hatred, disaffec tion or contempt against the Government established by law in Pakistan or against the Punjabis, and asserted that what he meant by the word "Pakhtoonistan" when using it in his speech was an autonomous Province within Pakistan and not a free State independent of Pakistan, adding that he had no intention of advocating the abolition of the sovereignty of Pakistan on any to the territories which lie within its boun daries. The accused made quite lengthy statements in each v the three cases and at times said that the statement made by him icy one case he treated as his statement in all. The mail points i the statements of the accused regarding the prosecution allegations are that the records of his speeches prepared be Ghulam Jilani, Sub‑Inspector, C.I.D., were not correct anal where he said, in his speeches that the Pathans had beer cruelly treated ever since the creation of Pakistan he had referred to the atrocities committed during the regime of Mr. Abdul Qaiyum Khan, the first Chief Minister of the North‑West Frontier Province after the coming into being of Pakistan. He also put in a written statement, which runs into 21 typed pages, on 6th of September 19 6, and requested that it may be treated as his written statement in all the cases. This written statement is on the record of Cr. O No. 16 of 1956 and I will make a reference to it at a later stage. Some other oral statements made by the accused are on the record of these cases, but they need not be detailed because some of them have little or no connection with the cases while some others, which made insinuations against some past and present important personages of Pakistan, I am not prepared to accept without reliable evidence to support them and of evidence on those points there is complete absence on the present records. The accused did not produce any defence witnesses it this case, but I examined 10 persons as Court witnesses in this case, C. W. 1. is Mustahshanbillah, A. S. I., who had in Urdu longhand taken notes of the speech of the accused made in Masjid Qazian of village Gumbat on 20th of March 1956. This police officer was examined by me as a Court witness at the suggestion of the defence, because they wanted to show that the record of the speech kept by Ghulam Jilani (P. W. 2) was incorrect. C. W. 2 was Muhammad Yusuf, Stenographer of the High Court of West Pakistan, Peshawar Bench, who had been directed by me to translate in Urdu pages 9 and 10 of the Pashtoon, dated 9th of July 1947. It was from this issue of the, Pashtoon that the accused had read out when a test was held at the request of the learned counsel for the accused to see if Ghulam. Jilani (P. W. 2) could take down in Urdu shorthand the notes of what was said in Pashto. I will discuss the test undergone' by Ghulam Tilani and its result at a later stage. C. W. 3 a Zardul; Moharrir Head Constable, Police Station Parang, who produced a copy of a first infor mation report made by Qazi Aziz‑ur‑Rahman, who was then the Deputy Superintendent of Police at Charsadda on 12th of August 1948, at Police Station Parang, within the jurisdiction of which is situated village Babra, where there was firing at‑ the Red Shirts on 12th of August 1948. C. W. 4 Sarfraz, Head Constable, who was a Record Keeper in the office of the Senior Superintendent of Police, Peshawar, stated that according to the records in his possession the case against the 47 persons sent up for trial under section 307/148, P. P. C., as a result of the first information report made 1,5, Qazi Aziz‑ur‑Rahinan yeas cancelled on 1st of August 1949, by the Assistant Commissioner, Charsadda, C. W. 5 Mohibullah, Fine Moharrir of Deputy Commissioner's Office, Peshawar, deposed that no fine was imposed by any Court on any person in connection with the firing at Babra but a punitive tax of Rs. 50,000 was imposed on the Red Shirts of Charsadda Sub‑Division in connection with the punitive police post which was set up in the Sub‑Division, Charsadda, under the orders of the North‑West Frontier Province Government contained in notification No. 40921JHP/12/29, dated 26th of October 1948 but that of this fine Rs. 200 was written off and Rs. 3,250 was refunded to persons who had paid it. C. W, 6 Dilawar Khan Jurmana Nawees of the D. C's Office, Mardan, stated that he could not produce any of the documents which he had been directed to produce as a defence witness because no one in the Mardan District was fined in connection with the firing at Babra. C. W. 7 Muhammad Yaqub Khan, Sadar Qanungo in the office of the Deputy Commissioner, Peshawar, produced a document (Exh. C. W, 6/1 in Cc. O. No. 10 of 1956) which showed that. property of six persons was confiscated in 1948 and 1949 in connection with the Red Shirt Movement and that the property known as Ashram along with the land attached to it was confiscated in 1948 by notification No. 37045, dated 15th of September 1948, which was issued under the N. W. F. Province Public Safety Ordi nance VII of 1948. He added that the Red Shirt Organisa tion and the Zalm‑e‑Pakhtoon was declared an unlawful association by an order passed by the North‑West Frontier Government in notification No. 37044, dated 15th September 1948, under section 5 of the N. W. F. Province Public Safety Ordinance VII of 1948 on the ground that its activities were of a subversive character. The document produced by the witness, showed that some properties of six persons were confiscated in connection with the Red Shirt Movement and that of those six, two were the sons of the accused, namely, Abdul Ghani Khan and Abdul Wali Khan. He also deposed that after some time the properties were ‑restored to their owners along with the income that had accrued from it subject to deduction for management. C. W. 8 Abdul Majid deposed that property of ten persons was confiscated in connection with the Red Shirt Movement in District Mardan, but that property was returned to their owners along with the income there from at a later date, C. Ws. 3 to 8 had been summoned by the accused as some of his defence witnesses but, as mentioned already, he took up the attitude on 4th of December 1956, that he would no longer participate in the proceedings of the cases against him. I had examined these witnesses so that if there was anything in favour of the accused in the documents which he had himself summoned, he should not be deprived of its benefit by reason of the fact that he had resorted to non ‑co‑operation with the Court. C. W. 9 Abdul Qaiyum Khan, who was the Chief Minister of the N. W. F. Province from 23rd August 1947, to 17th April 1953, deposed that in June 1948, the accused was arrested under section 40 of the Frontier Crimes Regulation in the Kohat District and when he refused to furnish security demanded from him by Major Allahdad Khan, who was then the Deputy Commissioner of District Kohat, he was sent to jail under the orders of the Deputy Commissioner for three years, but a few months later the Central Government passed an order detaining the accused under the Bengal Regulation III of 1818, in which detention the accused remained till the time of his release in 1954. Mr. Abdul Qaiyum Khan said that a few days before the firing at Babra the Provincial Government had received reports that the Red Shirts were out to commit breaches of the peace at which the Central Government was contacted and on 7th of August 1948, the Sub‑Divisional Magistrate, Charsadda, promulgated an order under section 144 of the Code of Criminal Procedure banning public meetings and the carrying of arms for seven days. In addition, some troops carried out a Flag March in the Peshawar District on 9th of August and in the Mardan District on 11th of August 1948, under ‑the orders of the Central Government. The resort to Flag March by the Army was considered neces sary because it was believed that unless it were made clear that the Government were determined to crush lawlessness, the Red Shirts would not refrain from their illegal designs. He received a communication from Mr. Gul Muhammad, who was at the time of the Babra firing the Sub‑Divisional Magistrate at Charsadda in which the incidents which led to the firing were detailed. This document was produced by Mr. Abdul Qayyum Khan as Exh. C. W. 8/1 in Cr. O. No. 10 of 1956 and he identified the signatures on the document of Mr. Gul Muhammad who is no longer alive. He said that the version of the Government given in the document Exh. C. W. 8/1 which was to the effect that Red Shirts, some of whom carried firearms, had fired at the Magistrate and the police party after which the Magistrate had given an order to fire at the unlawful assembly, the number of which exceeded 10,000, appeared in the Press but at no time did any one contradict it. About the number of casualties. Mr. Abdul Qaiyum Khan said that according to the official reports received by him as the Chief Minister of the North‑West Frontier Province the number of persons killed was 24 and of the wounded

35. I questioned him what the general state of law and order in the Province was when the Babra 'firing took place and he replied that the situation was very bad; people could no' travel on the road except during the day and highway robberies were frequent, there were many dacoities in the villages and crime was on the increase, the popula tion was armed to the teeth and it was difficult for the police to maintain law and order Moreover, Govern ment had information that foreign agents were" at work from both sides trying to stir up trouble in parts of Pakistan while in Kashmir the Indian troops were marching forward and the Mujahidin were on the retreat, He added that if the Red Shirts had on 12th August 1948, Succeeded in their designs to disrupt law and order, there would have been lawlessness all over the Province and in the neighbouring tribal belt, which belt he said, reacted at lightening speed to any lawlessness in the adjoining Pakistan territory. He was asked if he had at any time received any report to the effect that in his speeches made in 1948 the accused had described Pakistan as a bridge of sand which could be demolished with one kick and he replied that he had, adding that the official record must even then be with the police. C. W.10 Qazi Azizur Rahman, who is at present working as D. S. P. (Intelligence) at Peshawar, deposed that he had made the first information report with regard to the Babra incident at the neighbouring Police Station, Parang. He identified the signatures of Mr. Gul Muhammad, who was the Sub‑Divisional Magistrate, Charsadda, in August 1948, on the document Exh. C. W. 8/2 which is an order under section 144 of the Code of Criminal Procedure prohibiting the holding of meetings and picketing of Courts, etc., and on Exh. C. W.8/1, the report which Mr. Gul Muhammad sent to higher authorities including the Chief Minister of the Province. He said that Red Shirts, numbering about 10,000, were marching towards the police and would not desist in spite of orders of the Magistrate at whom and the police they fired after which the Magistrate ordered the police to fire. In the beginning the police were directed to fire in the air but when the situation appeared to be getting entirely out of control members of the huge body of men marching in a procession were fired at with the result that 24 were killed and 35 were wounded. I will now deal with the evidence in connection with the speech made by the accused on 24th March 1956, at village Nawan Killi which is the subject of Cr.O.No. 16 of 1956. This speech was made in a mosque known as Speen Masjid in village Nawan Killi and the audience numbered about

200. The order of the Provincial Government with regard to the filing of the complaint against the accused for this speech which is Exh. P. A. on the record, is dated 3rd July 1956, and the complaint, which is Exh. P. B. was made on 6th July 1956, in the Court of Mr. Sher Afzal Khan, Special Magistrate, Doongali. In support of their allegations in Criminal Original No. 16 of 1956, the prosecution produced ten witnesses. P. W. 1 is Mr. Ghazanfar Ali, who proved the signatures of Mr. M. H. Soofi, Home Secretary to the Government of West Pakistan, on the order Exh. P. A. which authorised the witness to lodge a complaint against the accused, and proved his own complaint. He said that he was acquainted with the hand writing of Mr. Soofi from whom he had received official communications and whom he had on some occasions seen write. Ghulam Jilani (P. W. 2) deposed that he had taken down shorthand notes Exh. P. C. in Urdu of the speech made by the accused which he had rendered into longhand Exh. P. D. Faqir Muhammad (P. W. 3) and Sher Zaman (P. W. 4) are the two attesting witnesses of the shorthand notes prepared by Ghulam Jilani (P. W. 2) both of whom signed those notes. P. W. 5 is Muhammad Hussain who printed the document "Paigham" which has been described already while dealing with the evidence in Cr. O. No. 18 of 1956. P. W. 6 is Abdul Khaliq Khaleeq who deposed that a paper in Pushto known as "Pakhtoon" used to be published in the N‑W. F. Province in the time of the Congress Ministry in 1939‑40 and 1945 to 1947. He said that when the word "Pakhtoonistan" was used by the accused, he meant by it an autonomous Province within Pakistan and not an independent territory. P. W. 7 Mushtaq Ali Shah D. S. P., C. I. D., stated that he had received from Ghulam Jilani (P. W. 2) the shorthand and longhand notes Exhs. P. C. and P. D., respectively of the speech made by the accused in village Nawan Killi which had in due course been transmitted to the higher officials at Lahore. P. W. 8 Ataur Rahman, A. S. I., stated that he was present at the time when the accused made his speech in Speen Masjid at Nawan Killi his notes of which Exh. P. M. he produced. Muhammad Yusuf, Inspector of Police (P. W. 9) stated that when he was Area Officer in the C. I. D. at Mardan in 1948, he had received records prepared by Fazl‑e‑Azeem, of the speeches made by the accused in Tehsil Sawabi in some of which he had described Pakistan as a bridge of sand which could be demolished with one kick. He added that those records were destroyed either in 1950 or 1951 as under the rules they had to be kept for two years. P. W. 10 Fazl‑e‑Azeem, Head Constable, C. I. D., stated that in 1948, when he was posted at Sawabi as a constable in the C. I. D., it was his duty to keep notes of political speeches and that in May that year he had taken notes of some of the speeches of the accused in which he had described Pakistan as a bridge of sand which could be demo lished with one kick. The witness added that he had sent his notes to Muhammad Yusuf (P. W. 9). In addition to the above evidence, the prosecution produc ed records of the speeches made by the accused at village Pipal on 24th February 1956 the notes of which are Exh. P. R. on the record, and of the speech made at village Sheikh Dheri on 3rd April 1956, the notes of which are Exh. P. S. on the record. The speeches at Pipal and Sheikh Dheri villages were proved by Ghulam Jilani (P. W.2) who also proved the record Exh. D. A. of the speech made by the accused on 17th July 1955 in Peshawar. When questioned to explain the evidence against him, the accused made a statement to the same general effect as in Cr.0. No. 18 of 1956 which having already been detailed need not be repeated here. Seventeen witnesses were produced by the accused in his defence in this case. D. W. 1 Sayyed Shamas Tabrez deposed that in 1948 near about the time of the Babra firing he had been maltreated by the police. He said that he had been a Surkhposh for 30 years and that there was no difference between a Surkhposh and a Khudai Khidmatgar. He added that those members of the Red Shirt Organization, who apolo gised, were not maltreated by the police. D. W. 2 Abbas Khan also deposed that he was maltreated by the police. He too admitted that he had been a member of the Surkhposh organisation for 30 years and had to admit that he had made no complaint to anyone concerning the maltreatment about which he was deposing in Court more than eight years after it was alleged to have been resorted to. D. W. 3 Amir Nawab said that he had been maltreated by the police on 5th August 1948. He admitted that he had been a follower of the accused all his life and that he had been imprisoned thrice. He also said that he had made no com plaint to anyone concerning the maltreatment he was deposing about. When I questioned him if there was any difference between a Khudai Khidmatgar and a Surkhposh, he replied that Khudai Khidmatgars was the civil side of the organisation while the Surkhposhs were its military side. D. W. 4 Saghir said that rear about the firing at Babra in 1948 his house was looted by the police after which he gave up the Khudai Khidmatgar organisation. D. W. 5 Hafizullah deposed that he had been maltreated by the police in August 1948 near about the time of the Babra Firing and that he had‑been a Khudai Khidmat gar all his life. He added that when the Red Shirt Movement, was banned in the time of Mr. Abdul Qaiyum Khan, all Red Shirts became Khudai Khidmatgars. He admitted that he had been sent to jail three times for political offences, twice before 14th August 1947, and once after that date. D. W. 6 Amir Khan deposed about some maltreatment meted out to him and some other persons. He said that he had gone to attend the meeting at Babra which had been called by Dr. Khan Sahib to pray for the release of his brother, the accused. In reply to a Court question, this witness said that the Khudai Khidmatgars were the brain and Red Shirts the arm of the Organisation of which he was a member. D. W. 7 Dost Muhammad talked about some maltreat ment by the police and said that the meeting at Babra on 12th August 1948 had been called by Dr. Khan Sahib and added that after the organisation of the Red Shirts was banned, all of them became Khudai Khidmatgars. D. W. 8 Amir Nawaz said that on 11th August 1948 he was going to attend the meeting at Babra called by Dr. Khan Sahib when he was detained by the police and maltreated. He admitted that he was detained under the N.‑W. F. P Safety Act. D. W. 9 Ghulam Nabi deposed that during the time when Mr. Abdul Qaiyum Khan was the Chief Minister of the N.‑W. F. Province some persons of his village had been directed by the police to attend a meeting which was to be addressed by a Minister. He admitted that he was a member of the Anti‑One Unit Front. D. W. 10 Warid Khan deposed that he had been maltreated by the police near about the firing at Babra. He said that the meeting at Babra had been called by Dr. Khan Sahib. In answer to a question, he had to admit that before the firing at Babra the Government did not treat the Red Shirts unkindly. D. W. 11 Haji Gul Badshah deposed that he was on his way to attend the meeting at Babra when he was stopped by the police and maltreated. He admitted that he was impri soned under the orders of a Court in connection with his unlawful activities and that there was no maltreatment of the Khudai Khidmatgars as such during the time that Mr. Abdul Qaiyum Khan was the Chief Minister. D. W. 12 Ali Jan, who has been a member of various political parties, said that during the time Mr. Abdul Qaiyum Khan was the Chief Minister, he had been called upon by a Magistrate to furnish security for Rs. 20,000 for the reason that some members of his family had in his absence, entertained to a dinner the Pir of Manki Sharif whom Mr. Abdul Qaiyum Khan did not like. D. W. 13 Mahmud Khan deposed about maltreat ment meted out to him. He said that he had been a Khudai Khidmatgar for thirty years and besides him no other Red Shirt of his village was maltreated by the police. In answer to a question, he replied that before the firing at Babra, no action of any kind had been taken by the Government against the Khudai Khidmatgars. D. W. 14 Fazal Khan deposed about some maltreatment meted out to him by the police. D. W. 15 Sher Bahadur deposed that on 12th August 1948, some police constables and soldiers entered his village where they maltreated some residents and that one Umar Khan died of that maltreatment. D. W. 16 Roza Khan deposed that he was present at Babra when the police opened fire, that the meeting at Babra had been called by Dr. Khan Sahib and that about 600 to 800 persons were killed at Babra by the firing of the police and that the number of persons present at Babra at the time when the police opened fire was between 20,000 and 25,

000. D. W. 17 Haji Faqira Khan deposed that he was a member of the Muslim League which body he gave up when it ceased to be democratic in the time of Mr. Abdul Qaiyum Khan, the first Chief Minister of the N. W. F. Province, after Pakistan came into being. It was from this witness that Mr. Amirzada wanted to ask irrelevant questions already detailed on 4th December 1956, and after my refusal to allow those questions to be asked the accused decided to give up his participation in the trials. In Cr. O. No. 16 of 1956, eight persons were examined as Court witnesses of whom Zardul C. W. 2, Sarfraz C. W. 3, Mohibullah C. W; 4, Dilawar Shah C. W. 5, Yaqub Khan C. W. 6 Mr. Abdul Qaiyum Khan C. W. 7 and Qazi Azizur Rahman C. W. 8 appeared as C. W. 3, C. W. 4, C. W.

5. C. W. 6, C. W.7, C. W. 9, and C. W. 10, respectively. In Cr. O. No. 18 of 1956, and as those seven Court witnesses made statements to the same general effect as in Cr. O. No. 18 of 1956, which have been detailed already in the narration of facts in Cr. O. No. 18 of 1956, I need not repeat them here, C. W. 1 in this case was Namdar who stated that at the time when firing by the police opened at Babra, where he had gone to attend the meeting of the Red Shirts, he had seen a large procession of Red Shirts coming towards the direction of the place where the firing was resorted to by the police. This witness had some days before appeared as a witness for the defence in a case against Abdus Samad Khan Achakzai which I was trying and as he had made a statement about the Babra firing in that case and happened to be present in Court. I examined him as a Court witness after recording my reasons for following that course. The evidence in the third case, namely, Cr. O. No. 10 of 1956, which relates to the speech alleged to have been made by the accused in village Urmur Payan on 5th June 1956. before an audience numbering 300 may now be briefly stated With regard to this speech, the document authorising the filing of the complaint against the accused is dated 14th June 1956, and is on the record as Exh. P. A. Mr. Ghazanfar Ali (P. W 1) proved the signatures of Mr. Soofi on Exh. P. A. and stated that after receipt of Exh. P. A. he had put in a complaint marked Exh. P. B. on 26th June 1956, Ghulam Jilani (P. W. 2) deposed that he had taken down the speech of the accused made in Pushto in Urdu shorthand and, produced Exh. P. C. as the record be had kept. After that he rendered the shorthand notes into longhand the record of which is Exh. P. D. Mufti Faqir Muhammad (P. W. 3) and Abdul Ghafoor (P. W. 4) are the two witnesses who had attested the notes kept by Ghulam Jilani and of them Abdul Ghafoor (P. W. 4), when questioned on the point, mentioned some of the objectionable portions of the speech of the accused made at Urmur Payan. Muhammad Husain (P. W. 5), who is the proprietor of the Manzoor‑Am Press, Peshawar, deposed that the 'Paigham' Exh. P. E. and some other documents were printed at his Press at the instance of a man politically connected with the accused. Ghulam Rasul (P. W. 6), who is a clerk of Muhammad Hussain (P. W. 5) made a statement which to some extent corroborated that of (P. W. 5). Nizam Din (P. W. 7) deposed that he had made payment to the Manzoor‑i‑Am Press with regard to the printing of the 'Paigham' Exh. P. E. and that he had done so at the instance of Husain Bakhsh Kausar, who, according to the evidence on the record, was connected with the accused. Abdul Khaliq Khaleeq (P. W. 8) deposed that a paper in Pushto "Pakhtoon" by name, used to be published at Peshawar in the time of the Congress Ministry in 1939‑40 and from 1945 to 1947. He further deposed that by "Pakhtoo nistan" the accused meant a fully autonomous Province in Pakistan and not a State independent of Pakistan, Khan Mir Hilali (P. W. 9), who used to be a member of the Indian National Congress, produced a photograph wherein the accused is shown to be sitting with Mr. Gandhi. Fazal Azeem Head Constable (P. W. 10) deposed that in 1948 when he was posted as a constable in the C.I.D. at Sawabi, he had taken down notes of some of the speeches made by the accused wherein the accused had described Pakistan as a bridge of sand which could be demolished with one kick. Mushtaq Ali Shah, D. S. P., C. I. D. (P. W. 11), deposed that he had received the notes of the speech of the accused from Ghulam Jilani (P. W. 2) and said that after the records of the speech were received, they were sent to the Inspector who prepared a diary which was sent to the Superintendent of Police, C. I. D, by whom a gist of the diaries was sent to the higher officials at Lahore. Muhammad Yusuf, Inspector of Police (P. W. 12), who used to be the Area Officer at Mardan in 1948, deposed that he had in 1948 received some notes from Fazal Azeem with regard to the speeches of the accused and that he remembered that in some of those speeches the accused had described Pakistan as a bridge of sand which could be demolished with one kick. The prosecution also led evidence with regard to the speech made at village Takkar by the accused on 31st May 1956, of which the record is Exh. P. R. and of the speech made by the accused at Akora on 6th June 1956, of which the record is Exh. P. S., both of which records were proved by Ghulam Jilani who had prepared them. When questioned to explain the evidence against him, the accused made a statement to the same general effect as the one that he had made in Cr. O. No. 16 of 1956 which having been detailed already, need not be mentioned here. Five witnesses for the defence had been examined in this case on 27th and 28th November 1956, but as the accused gave up participating in the trial on 4th December 1956 no other witnesses were examined, Mst. Maryam (D. W. 1) stated that she had gone to Babra on 12th August 1948, and had received an injury, adding that when she went to the hospital for treatment, she was refused admittance therein and consequently resorted to treatment at home. She admitted that at the time when the police opened fire, a large procession of Red Shirts was advancing towards the place where the police were. Asmatullah (D. W. 2), stated that he was maltreated by the police and that he was sentenced to imprisonment for two years without being produced before a Magistrate. He admitted that he had been a Red Shirt for a long time and was a member of the Anti‑One Unit Front. Roghan Shah (D. W. 3) deposed about some maltreatment of which he was a victim at the hands of the police. He ad mitted that he had been a Khudai Khidmatgar for 30 years and that he had been sent to prison under the Safety Act or for some offence. Waris Shah (D. W. 4) stated that he had been maltreated by the police who had destroyed his orchard and had maltreated his wife and mother‑in‑law. He admitted that he did not make any complaint about the maltreatment he was deposing to after about eight years either to the successors of Mr. Abdul Qaiyum Khan, to Dr. Khan Sahib or to anyone else. Abdullah Shah (D. W. 5), who is the editor of the paper, "Al‑Falah" stated that when Mr. Abdul Qaiyum Khan was Chief Minister of the N ‑W. F. Province, he had instructed trim to vilify the Red Shirts so that the action which the Chief Minister intended to take against the Red Shirts on some future date should not appear unjustified. He said that during the time when Mr. Abdul Qaiyum Khan was the Chief Minister; his instructions were that only those news were to be printed which he gave to the news agencies. He admitted that he had been a member of the Ahrar Party and the Muslim League Party and was now a member of the Republican Party which is in power in West Pakistan. He made a candid statement to the effect that his principle was to remain on the, right side of the person in power and also said that it was for the first time on 3rd June 1947, that he had heard the name "Pakhtoonistan" mentioned. In Cr. O. No. 10 of 1956 nine persons were examined as Court witnesses. Tasdeeq Husain (C. W. 1), Station House Officer, Police Station Paddi, produced Urdu longhand notes of the speech of the accused made at Urmur Payan on 5th June 1956. This witness was summoned by me at the instance of the defence so that if there were any material discrepancies between the record of the speech kept by Ghulam Jilani (P. W. 2) and that kept by this witness, the accused should get the benefit. Zardul (C. W. 2). Sarfraz (C. W. 3). Mohibullah (C. W. 4). Dilawar Shah (C. W. 5), Muhammad Yaqub (C. W. 6), Abdullah Majid (C. W. 7), Mr. Abdul Qaiyurr Khan (C. W. 8) and Qazi Azizur Rahman (C. W.9) in this case are the same persons who appeared as C. W. 3, C. W. 4, C. W.

5. C. W. 6, C, W. 7, C. W. 8 C. W. 9 and C. W. 10, respectively, in Cr. O. No. 18 of 1956 and as in this case they made statements similar to those made in Cr. O, No. 18 of 1956, it is unnecessary to mention those statements here. I might here deal with the lengthy written statement put in by the accused on 6th September 1956, to which a pass ing reference has already been made. After mentioning some incidents of the early life of the accused, the statement details the reasons why the Khudai Khidmatgars aligned themselves with the Indian National Congress and did not join the Muslim League in their difficult struggle for obtaining a separate homeland for the Muslims residing in British India. This statement which, runs into 21 typed pages is irrelevant in most parts and irreverent in some. I cannot help remarking that if the unenacted unwritten law of evidence, on which the layman acts and which I have held in an earlier part of this judgment is not to be paid any heed to in a Court of law, were applicable the written statement instead of benefiting the accused could have harmed him in these cases. If the lengthy written statement has benefited the accused in the political field that is the only benefit he has derived from this docu ment which must have taken days to prepare because for the purposes of these trials it has but very little relevancy. The first question to consider now is whether or not the prosecution has succeeded in proving that the speeches alleged by them to have been made by the accused on 20th March 1956, 24th March 1956, and 5th June 1956, which are the subject of the three trials, were made by him Mr. Mahmud Ali had contended in the early stages that the records kept by Ghulam Jilani (P. W, 2) could not be accurate because he could not have taken down in Urdu shorthand the speeches made in Pushto without missing a substantial part of what was paid. Mr. Mahmud Ali said that if Ghulam Jilani under went a test with regard to his capacity to take down notes, it could be demonstrated that his claim that he had taken down in Urdu shorthand a speech made in Pushto was baseless. On 18th September 1956. I held a test with regard to the ability of Ghulam Jilani to take down in eht Urdu shorthand a speech made in Pushto at which the accused read from pages 9 and 10 of the "Pushtoon" dated 9th July 1947, and Ghulam Jilani (P. W. 2) took down in Urdu shorthand what was read out. K As mentioned already, I had the relevant parts of pages 9 and 10 of the Pashtoon dated 9th July 1947, translated into Urdu by Muhammad Yusuf (C. W. 2 in Cr. O. No. 18 of 1956) and on comparing that translation with the Urdu longhand rendering of the shorthand notes prepared by Ghulam Jilani. I find that the difference between the two notes is by no means significant. It must not be forgotten that what the accused spoke at the time of the test of Ghulam Jilani was read out and the speed must, therefore, have been faster than it would be if he were making a speech without any writing before him as was the case at the time when the speeches which are the subject of the trials were made. Ghulam Jilani (P.W. 2) had been taking down notes in Urdu shorthand of speeches made in the now defunct Legislative Assembly of the N.‑W. F. P., and it is in his statement that even after the Assembly employed their own reporters, he was retained for about a year in order to train them. The witness who belongs to a part which was formerly in the N.‑W. F. Province, deposed that his Pushto was the same as that of the accused whose home was at a distance of only a few miles from his own and that he was fully able to follow and take down all that the accused was saying while making the speeches which he had been deputed to keep notes of. He admitted, however, that it was possible that he may have omitted to record some unimportant portions of the speech but asserted that he omitted nothing from his record which was of any importance. I have fully considered the matter and have arrived at the conclusion that the record kept by Ghulam Jilani cannot be rejected on the score of inability to take down notes because I am of the view that he is fully as competent as he claims to be. One important fact in this connection is that at the time when the speeches, which are the subject of the trials, were made by the accused, his elder brother, Dr. Khan Sahib, was, as he is even now, the Chief Minister of West Pakistan in that capacity was in charge of the portfolio of Law and Order with the Police Department under him, Ghulam Jilani (P. W. 2), who is employed in the Police, knew not only that Dr. Khan Sahib could make or mar his career, but also that he was the brother of the accused. He deposed that the relations between the two brothers were good and it is, therefore, obvious that Ghulam Jilani could not have kept a wrong record of the speeches of the accused or tried to introduce anything objectionable therein without its having been uttered by the accused, The accused admitted having made the speeches but said that the records kept by Ghulam Jilani were not faithful. It was open to the accused to produce witnesses in defence to show that the records of speeches kept by Ghulam Jilani were inaccurate but he has not cared to do so. It is true that on the one hand I have the statement of as important a personage as the accused to the effect that all that is attributed to him was not said by him and some things that he had said had not been taken down by Ghulam Jilani, and on the other, I have the statement of Ghulam Jilani, a police official of no great status, but as I am satisfied that Ghulam Jilani had no motive to pre para a false record with the object of damaging the accused, I prefer the statement of the police official, who in my opinion performed his duty fearlessly, to that of the accused. The statement of Ghulam Jilani with regard to each speech is corroborated by that of two witnesses whose names I have mentioned when detailing the evidence with regard to each case, and though those witnesses said that they could not read Urdu shorthand, most of them admitted that what Ghulam Jilani read out to them soon after the speeches finish ed, tallied with what the accused had said in his speeches. I have no ground for not accepting the statements of the attesting witnesses but I might add that even if the prosecution had produced no witness to corroborate Ghulam Jilani, Sub Inspector, C. I. D., I would have had no hesitation in accept ing his statement and in holding that the records of speeches kept by him were as faithful as it was in the circumstances humanly possible to keep. It is not without significance that the record of the speech made at Urmur Payan, which is the subject of the trial in Cr. O. No. 10 of 1956, tallies in all important details with the 'Paigham' the authorship of which document the accused admitted in his statement. I hold, therefore, that the records of the speeches of the accused kept by Ghulam Jilani are reliable and can be safely acted upon. I now proceed to consider whether or not the accused is proved guilty of any offence by reason of the speeches which are the subject of the trials. In this connection the question arises whether the acts with which the accused is charged have not become non‑criminal after the coming into force of our new Constitution on 23rd March 1956, wherein liberty of speech and expression has been guaranteed to the citizens of Pakistan even if those acts were criminal before that date, and it appears to me necessary to deal with this question before coming to the others that fall for determination, Liberty of speech and expression is guaranteed in our new Consti tution by Article 8 which is in the following terms: "Every citizen shall have the right to freedom of speech and expression, subject to any reasonable restrictions im posed by law in the interest of the security of Pakistan, friendly relation with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence". It was contended that as after 23rd March 1956, Pakistan was, as mentioned in the Preamble to the new Constitution, a democratic country, where citizens had the right to choose their own representatives and through those representatives. to make laws, nothing that was an offence before 23rd March 1956, by reason of giving expression to ideas by words spoken or written or by any other means remained an offence after 23rd March 1956, unless it was hit by Article 8 of the new Constitution. Invoking the principles of democracy, it was contended that as‑the people were in substance the rulers of the country as they ruled through representatives elected by them and these representatives could pass any statute, it was open to any member of the public by speaking, writing or by any other means of communication to impress upon the representatives what he considered to be in the best interests of the country in order that those representatives may be persuaded to think on the same lines. It was urged, therefore, that the speech etc, cannot be penal unless it was likely to lead to disturbance or to "any of the results the avoidance of which was envisaged in Article 8 of the Constitution. The argument went to the length that even if any resident of Pakistan advocated the abolition of the sovereignty of Pakistan on any of its territories, the speech would be protected under Article 8 of the new Con stitution unless the abolition of sovereignty was sought to be brought about by violence, because the speech etc can be construed to be an appeal to the members of Parliament to pass a law on the lines suggested. Before dealing with the effect of Article 8 on sections 124‑A and 153‑A of the P. P. C. I will consider its effect on section 123‑A of the P. P. C. which was brought on the Statute Book in the end of 1950, to punish, inter alia those persons who advocate the abolition of the sovereignty of Pakistan on any of its territories. I have no doubt in my mind that no citizen of Pakistan would be willing to concede to members of Parliament the power to give away even an inch of the territory the getting of which had cost them thousands of lives of persons of all ages and of both sexes as well as the honour of hundreds of families. I am equally certain that no member of Parliament will have the courage to propose to the House that it should pass a law giving up the sovereignty of Pakistan on any part of its territories but as this might appear to be merely a sentimental way of dealing with the question I would examine it from the legal angle. It was contended that as the Parliament of Pakistan could make amendments in the Constitution and Art. l of the Constitution which defined the territories of Pakistan was a part of the Constitution, amendments therein could be made though such amendments stood on a different footing from other amendments as section 216 of the Constitution requires that if the intention is to make an amendment in some specified Articles of which Article 1 is one, vote of a specified number of members was necessary in favour of the measure. and some other formalities had to be satisfied. It was said, therefore, that Parliament could ‑by a piece of legislation curtail the territories of Pakistan and if any person made speeches in order to convince the Parliament that that course was in the best interest of Pakistan, it would be unjust to convict him of a criminal offence. It appears to me that this argument was addressed without fully considering all the relevant matters. The Parliament of Pakistan has only those powers which have been given to it by the Constitution and not being supreme like the Parliament of England, can pass c only those laws which the Constitution creating it has given it the power to pass. Article 1 of the new Constitution reads as follows:‑-- "1. (1) Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, and is hereinafter referred to as Pakistan. (2) The territories of Pakistan shall comprise:‑ (a) the territories of the Provinces of . East Pakistan and West Pakistan (b) the territories of States which are in accession with or may accede to Pakistan ; (c) the territories which are under the administration of the Federation but are not included in either Province ; and (d) such other territories as may be included in Pakistan". Reading this Article with Article 216 of the Constitution, it appears to me that when Article 216 talks about the amendment of Article 1, what is meant is not the abolition of the sovereignty of Pakistan on any parts of the territories N mentioned in Article 1 but only the readjustment of the Provinces or breaking up of any of the Provinces into parts. I am strengthened in this view by the language of the Preamble to the Constitution, that part of which to my mind supports my view, reads as follows: "Whereas sovereignty over the entire Universe belongs to Allah Almighty alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust :‑ `Whereas the Founder of Pakistan, Quaid‑i‑Azam Muhammad Ali Jinnah, declared that Pakistan would be a democratic State based on Islamic principles of social justice. "And whereas the Constituent Assembly, representing the people of Pakistan, have resolved to frame for the sovereign independent State of Pakistan a Constitution * * * * * * * * * * " Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan should form a Federa tion, wherein the Provinces would be autonomous with such limitations on their powers and authority as might be prescribed * * * * * * * * * * * "Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights over land, sea and air should be safe guarded. * * * * * * * * * * * "Now, therefore, we the people of Pakistan in our Constituent Assembly this 29th day of February 1956, and the 17th day of Rajab, 1375, do hereby adopt, enact and give to ourselves this Constitution ." When the Constituent Assembly passed the Constitution, they made it clear in the Preamble that the people of Pakistan whom they represented in framing the Consti tution did not want to see even an inch of the territories of Pakistan go out of its sovereignty and even if Article 216 of the Constitution could by stretching its language to breaking point be construed as allowing the Parliament of Pakistan to pass a law with regard to the abolition of the sovereignty of Pakistan on any part of its territories, it is clear that the Constituent Assembly had no intention of conferring power on the Parliament to give away in a manner which could only euphemistically be termed "peaceful" part of what had been won after a hard struggle which entailed losses of by no means negligible character. If the argument were correct, there would be nothing to prevent the Parliament, by vote of the requisite majority, to pass a law by which Article 1 was to be so amended as to read that the territories of Pakistan shall be nil. No one can contend that the Constitution gave the Parliament that power, and I have no doubts in my mind that if the abolition of the sovereignty of Pakistan on any part of its territories is advocated, an offence under section 123‑A of the P. P. C. will be committed whatever the circumstances in which and the time at which such abolition is advocated by words spoken or written or by visible representation unless the person advocating it was protected by reason of any provision of law such as one of the general exceptions to the Penal Code or on account of enjoying immunity because of some other provision of law. Every inch of the territory of the State being more valuable than the liberty of speech and expression enjoyed by any of its citizens, such liberty cannot on any social, N moral, legal or political ground be used as the "democratic" means of liquidating the democratic State that has bestowed that liberty. I have not the slightest hesitation in holding M that the restrictions imposed by Section 123‑A of the P. P. C. are in the interests of the security of the State and are more than reasonable. With regard to the effect of Article 8 of the Consti tution on section 124‑A of the P. P. C. it was urged that be cause the new order of things allowed the people to change their Rulers by elections, nothing said against the Govern ment established by law in Pakistan could be an offence because to put a curb on the liberty of the people to express their views of Government they could at their sweet will change would be hitting at the roots of democracy. It was contended, therefore, that section 124‑A of the P. P. C. ceased to be good law after 23rd March 1956, because it imposes restrictions on the liberty of speech and those restrictions being in the circumstances now obtaining un reasonable, would be hit by Article 8 of the Constitution. The Constitution does not define what restrictions are to be considered reasonable with regard to matters mentioned in Article 8 and it is, therefore, for the Courts to decide whether or not a restriction which is impugned is reason able or not. Section 124‑A of the P. P. C. reads as follows :‑ "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 or the Government established by law in the Provinces and the Capital of the Federation, shall be punished with transportation 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". Explanation 1 : The expression 'disaffection' includes disloyalty and all feelings of enmity. Explanation 2 : Comments expressing disapprobation of the measures of the Government with a view to obtain their alternation by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3 : 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. It will be noticed that the section making punishable the creation and attempts at creation of hatred and con tempt or disaffection against the Government does not stifle all criticism. The second and the third explanations appended to the section give the people the liberty to say things against the measures and actions of the Government and by such criticism the people can bring about changes in the personnel of the elected Rulers who are not taking adequate care of their interests, but if the object is to create hatred or contempt of the Government established by law, I do not see how restrictions on such an act could be considered to be unreasonable. Relying on section 17 of the P. P. C. which defines the word " Government " as person or persons authorised to administer executive Government in the Provinces or in any Province or part thereof, it was contended that as the creation of hatred, contempt or disaffection or attempts at creation of those feelings against the persons mentioned in section 17 of the N. P. C. could not affect the security of Pakistan, Article 8 of the new Constitution made the section void because Article 4 of the new Constitution which like Article 8 occurs in Part II enjoined inter alia all that existing laws, etc., which are inconsistent with any of the provisions of Part II shall to the extent of the inconsistency be void. The expression used in section 124‑A of the P. P. C. is "Government established by law in the Provinces and the Capital of the Federation" and if the definition in section 17 were substituted for the word 'Government' the result will be a meaningless jumble of words. I am of the view that the expression occurring in section 124‑A can be substituted by the expression "Government established by law in Pakistan" and means the existing political system and not merely any set of persons who may be exercising executive authority at a particular time. I am supported in this view by a number of decided cases of which I would mention only a few.. In Queen‑Empress v. Bat Gangadhar Tilak (I L R 22 Bom. 112), Strachey J. who had to interpret the expression "Government established by law in British India" which occurred in the section as it then stood defined this expression at page 135 as‑Government rule and its representatives as such‑the existing political system as distinguished from any particular set of administrators. The decision of Strachey J. was sought to be questioned in the Privy Council by appeal, but the application for leave to appeal was rejected by a brief order reported as Bat Gangadhar Tilak v. Queen‑Empress (I L R 22 Bom. 528 (P C)), as their Lordships were of the view that the charge of Strachey, J. to the jury erred in no respect. In Mrs. Besant v. Emperor (ILR39Mad.1085), the Madras High Court approved of the definition of "Government established by law in British India" given by Strachey, J. in I L R 22 Bom. 112 and the decision in I L R 39 Mad. 1085 was not reversed by the Privy Council in Annie Besant v. Advocate‑General of Madras (AIR1919PC31). I am clear in my mind that if hatred, contempt or disaffection is created against the present political system or attempts are made for that purpose, the result cannot but be to affect prejudicially the o security of Pakistan and it follows that section 124‑A of the P. P. C. is not hit by Article

8. But even if the definition of the word "Government" contained in section 17 of the P. P. C. is to be applied for interpreting the expression "Government established by law in the Provinces and the Capital of the Federation", the position of section 124‑A will not alter, because it is manifest that if hatred, contempt or disaffection is created against the p persons who exercise executive Government or attempts to that effect are made the probable result would be a breach of public order and on that ground section 124‑A of the P. P. C. will not become void by reason of Article 8 read with Article 41 of the new Constitution. Some decisions of the High Courts in India were cited before me with regard to the effect of Article 8 of our Constitution because Article 19 of the Constitution of India is, to some extent, similar to that Article. The relevant part of Article 19 of the Constitution of India reads as follows :‑ "19. (1) All citizens shall have the right‑ (a) to freedom of speech and expression ; (b) . . . . . . . . . . . (c) . . . . . . . . . . . (d) . . . . . . . . . . . (e) . . . . . . . . . . . (f) . . . . . . . . . . . (g) . . . . . . . . . . . (2) Nothing in sub‑clause (a) of clause (1) shall, affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub‑clause in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence." Clause (2) as it now exists, was substituted by the Constitution (First Amendment) Act of 1951, section 3 (1) (a) for the originally enacted clause (2) which was in the follow ing terms :‑ (2) "Nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State." When the now repealed sub‑clause (2) of Article 19 of the Constitution of India was in force, it was held by a Division Bench of the Punjab High Court in Tara Singh Gotri Chand v. State (A I R 1951 Pb. 27), that section 124‑A of the I. P. C. (which in all material respects is in the same terms as section 124‑A in force in this country) had been repealed on the day that the Constitution of India came into force. The main reason for this decision was that because a speech could fall within section 124‑A of the Penal Code notwithstanding that it did not have the tendency to affect the security of the State the section was repugnant to the provisions contained in clause 2 of Article

19. Later, however, the Courts in India have taken a different view with regard to the position of section 124‑A of the I. P. C. qua the provisions of Article 19 of their Constitution. In Debi Soren v. The State (A I R 1954 Pat, 254), the question arose whether or not the offence envisaged by section 124‑A of the I. P. C. could be deemed to be an offence after the coming into force of the Constitution of India and ix was held by a Division Bench that the section had not been affected by Article 19 of the Indian Constitution. I am in agreement with the decision but I may say with all respect that I do not agree with all the reasons for arriving at it. An almost similar view was taken in Indramani Singh v. Manipur State (A I R, 1955 Manipur 9), though it was said therein that the Courts should treat the relevant provision of the Indian Constitution as a proviso to section 124‑A of the Penal Code and decide in each case whether or not the restriction that the section of the Penal Code would impose in that case was reasonable. 11 am in agreement with the ultimate decision in the case, though I might say with all respect that the method of treating the constitutional provision as a proviso to a piece of other legislation was not perhaps the correct approach to the question. It will now address myself to the position of section 153‑A of the P, P. C. qua Article 8 of the new Constitution. This section makes penal the promotion of enmity and hatred between the persons mentioned therein and what I have said above while dealing with section 124‑A of the P. P. C. with regard to the result of creation of feelings of hatred, contempt or disaffection against Government established by law has application with regard to this section. It will be noted that this section makes punishable the promotion of hatred and enmity and there can be no manner of doubt that if acts mentioned in section 153‑A were not offences public order will be prejudicially affected. The explanation attached to the section does not bar the pointing out of objectionable matters which are promoting feelings of hatred or enmity and the restriction on the liberty of speech and expression imposed by section 153‑A is, therefore, reasonable. I would hold, therefore, that neither of the three sections for committing offences under which the accused was charged has been scored off from the P. P. C. by the enforcement of Article 8 read with Article 4 of our Constitution. I will now examine the speeches with a view to deter mining, whether or not they proved against the accused all or any of the offences with which he has been charged. All the three speeches are so alike as regards their objectionable portions that I can take only one of them and deal with it without running any risk of being accused of not having looked at the other two. After telling his audience that he had not visited them for a long time, he told them that the world was changing and as a change was like a flood, they should be careful because people who were not wary were washed away by floods. He then told his audience that it was the Pathans who were the creators of Pakistan because it was they who turned the British out of the country and if the British had not left, Pakistan could not have come into being. The persons in power in Pakistan were the stooges of the British Government and that the Government had, before they handed over the reins of office to them, instructed them to maltreat the Pathans who had turned them out of the country. He deplored that most of the Pathans did not care for their kith and kin if they got some benefit from the Pakistan Government. He asked the Government to tell him for what reason he and hundreds of other Pathans had been confined in jails for seven years without being informed what their sin was. He said that in the eight years ever since the creation of Pakistan, the Pathans had been subjected to treatment which was much worse than the bad treatment meted out to the Pathans by the British in spite of the fact that the Pakistan Government claimed to be an Islamic and a democratic Government while the Government of the British was of the infidels and not at all democratic. He also said that bullets had been showered at the Pathans, their children, young men and old men had been killed and their women had been disgraced and dishonoured. In the jails the Pathans were meted out maltreatment that was not meted out to them even during the time of the British. The Pakistan Government treated the Pathans as if it were their step mother and he, told the audience that though they were prepared to fight their real brothers over minor matters, they had done nothing when the whole of their country had been taken away by the Punjabis who were in control of the Central Government. The Punjabis had deprived them of their country but they would not be allowed to do so because God had given the country of the Pathans to the Pathans and their children and no one could deprive them of that tract as even the mighty British had not been able to do. About the Punjabis he stated that they had bigger territory than the Pathans had and yet had grabbed the country of the Pathans and merged it with their own. In a part of the speech he said that the Punjabis, the Pathans, the Sindhis, the Balochs and the Bengalis were brothers, but if the Pathans were deprived of their rights, they would not rest content because even if a brother misappropriates the property of another brother, the result is ill‑will and quarrels. He exhorted the Punjabis to give up the country of the Pathans so that the Punjabis may live peacefully in their own tract and the Pathans in their own and continue good relations. He added that the area he wanted was Pakhtoonistan and no one could deprive him and his Pathan brethren of it. He told his audience that in foreign countries Pakistan claimed less regard than the carcase of a dead dog. The rule is that when considering a speech to determine if it offends against section 124‑A or allied sections, the speech has to be read as a whole so that the intention of the speaker may become clear and only portions of the speech may not be used against him and he should not be held to be innocent simply because some parts of the speech are not open to objection. In addition all the surrounding circumstances such as the time and place when and where the speech was made, and the audience to which it was addressed have to be kept in view. I have considered all the three speeches in that light and it appears to me that there is no escape from the conclusion that they advocated abolition of the sovereignty of Pakistan on a part of it's territory. Each of the three speeches is a mixture of what is an offence with what is not an offence the advocating of the abolition of the sovereignty of Pakistan over the tracts which are inhabited by the Pathans with the reasons why these tracts should not have been merged with other provinces to form the Province of West Pakistan‑ but the intention of the accused clearly was to im press or his Pathan listeners that their remaining within Pakistan was to their detriment. In his statements before me the accused said that his intention was that the Pathans should have an autonomous province in Pakistan, but this could not have been his intention because before the N.‑W. Frontier Province became merged with the other Provinces to form the West Pakistan Province, the Pathans had a separate North West Frontier Province as autonomous as any other province and yet the accused made it clear in his present speeches that the state of things even was not satisfactory. By saying that the Punjabis should give up hold of the tract which is a part of the country he claimed the Pathans had wrenched from the British and which tract God had given to the Pathans and their children, the accused clearly meant that the Pathans and their children were to be an independent nation with nothing to do either with the Punjabis or the Government of Pakistan with whom he promised cordial relations if what he was advocating was conceded to him. That the demand of the accused was for a separate independent State is also clear from the fact that the Pathans were being told that the Pakistan Government had in the last eight years subjected them to atrocities to which even the infidel British Government had not subjected them. I fail to understand how the accused can claim that his intention was only to get an autonomous province within Pakistan for the Pathans, if the Pakistan Government has been as cruel to and as unmind ful of the interests of the Pathans as the accused represented it to be. It is true that the accused said that the Pathans were brothers of Punjabis, etc., but it is clear that what he intended was that there should be a partition between these brothers just as there is partition between brothers who are children of the same parents so that each one should have his own property with which the other has no concern. Now section 123‑A of the P. P. C., the material part of which has been reproduced earlier, has two parts, the first one making it penal the intentional influencing of any person or the whole or any section of the public, in a manner likely to be prejudicial to the safety of Pakistan, or to endanger the sovereignty of Pakistan in respect of all or any of the territories lying within its borders by condemning the creation of Pakistan by virtue of the partition of British India, and the second making punishable advocating the curtailment or abolition of the sovereignty of Pakistan in respect of all or any of the territories lying within 'its borders, whether by amalgamation with the territories of neighbouring States or otherwise. It appears to me that the speeches of the accused are hit by both the above parts of section 123‑A of the P. P. C. but in any case there is no doubt about the appli cation of the second part of the section. I am prepared to concede that the speeches of the accused do not disclose that he wanted the people of the area which formerly formed the North‑West Frontier Province, to join any neighbouring foreign country, but his words make it clear that he wanted that tract, and in fact all tracts inhabited by the Pathans, to be entirely independent of Pakistan. I am further clear in my mind that by making the speeches the accused brought the Government established by law in Pakistan into hatred and contempt and excited feelings of disaffection towards that Government. That the creation of hatred and contempt was his intention is clear from the fact that he blamed the Government of Pakistan of all kinds of atrocities. It needs no great imagination to know that if "A" tells "B" that "C" has disgraced and dishonoured his womenfolk, has killed his relatives and showered bullets on his children and brothers, "B" can have no love for "C" who is stated to have done all these things. Nor can anything but contempt of the Government in Pakistan result if it is asserted that in the eye of the foreigners Pakistan has less value than the carcase of a dead dog. No doubt, the second and third Explanations appended to section 124‑A allow comments which express disapprobation of the measures and actions of the Government with a view to obtaining their alteration by lawful means, but if those comments are made with the intention of exciting or attempting to excite hatred, contempt or disaffection against the Government, the comments are not saved by reason of those Explanations and amount to the offence envisaged in the operative part of the section. A reading of the speeches makes it clear that the accused wanted to tell the Pathans that the Punjabis were their enemies who had deprived them of the territory that God had given them and were usurping everything that belonged to the Pathans. This could have no other effect than making the Pathans entertain feelings of enmity and hatred against the Punjabis. Section 153‑A of the P. P. C., the operative part of which has been reproduced in an' earlier part, has an explanation appended to it which is to the effect that pointing 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, does not amount to the offence. The passages relating to the Punjabis contain so many mis‑statements that I am clear in my mind that the accused. was not pointing out any misdeeds of the Punjabis with a view to having those misdeeds put an end to with the object of removing any bad feelings that existed between the Punjabis and the Pathans, and, therefore, the explanation to the section does not make the accused's act innocent. The plea of the accused that by the word `Punjabis' used in his speeches he meant those Punjabis who were in power and not the Punjabis in general cannot be accepted as there was no such indication in the speeches themselves. It is true that the word `Punjabis is inept after the merger of what was Punjab with some other Provinces to form the Province of West Pakistan, but it is manifest that the accused was making references to the residents of those districts of West Pakistan which before the merger comprised the Punjab and that the Punjabis and the Pathans as contemplated by the accused in his speeches constitute different classes. For the purposes of section 153‑A of the P. P. C. Other speeches and writings of the accused which fell within my order dated the 10th of September 1956, with regard to admissibility of the other utterances of the accused in the present cases were placed on the record and relied upon by the prosecution, but as the speeches with which the accused is charged are entirely clear and unambiguous. I need not take the others into consideration. In his statement before me, the accused pleaded that this object in making the speeches was to point out the atrocities that were committed in the time when Mr. Abdul Qaiyum Khan was the Chief Minister of the North West Frontier Province, and that he had no intention of laying any blame at the doors of the Government in Pakistan. In none of the three speeches which are the subject of the trials has the accused mentioned the name of Mr. Abdul Qaiyum Khan as the person at whom his virulent attacks are directed but even if his statement be accepted, it is clear that his assertions have to be fully examined before they can be used in his favour. 1 might make it clear that I am of the view that if the speeches have created or have attempted to create the hatred, contempt and disaffection contemplated by U section 124‑A of the P. P. C., the fact that what the accused said to attain his object was true would not be material on the question of his guilt and his act will still remain an offence. If, however, what has been said is true, the fact may be a mitigation of the offence. I would, therefore, proceed to examine the evidence to see if the accused has established that the atrocities which he was proclaiming to the people from village to village and was advising his listeners to inform others about, had been perpetrated. I have already mentioned that the accused produced a number of defence witnesses to depose that they or some other persons had been subjected to maltreatment by the police. All such persons are connected with the accused and most of them or his old and faithful followers. The complaints of maltreatment which they were making before me were so delayed that I find it difficult to believe that they were based on truth. Almost all the witnesses who deposed to having been the victims of the maltreatment at the hands of the police, admitted that it was for the first time in this Court that they had told anyone that eight years earlier the police had treated them in a manner in which they should not have done. Assuming that I accept the reason given by some of the defence witnesses for their reticence, namely, that they were afraid of Mr. Abdul Qaiyum Khan, their silence after he ceased to be the Chief Minister in April 1953, remains inexplicable. It is in evidence that Mr. Abdul Qaiyum Khan was succeeded by Mr. Abdur Rashid as a Chief Minister who in his turn was succeeded by Sardar Sahadur Khan, and yet no complaints were made to these, gentlemen. The explanation given by some defence witnesses that Sardar Abdur Rashid had been a police officer before he became the Chief Minister, and, therefore, they expected no justice from him and they expected none from Sardar Bahadur Khan because he belonged to the Muslim League, the party to which Mr. Abdul Qaiyum Khan belonged, does not appeal to me especially because even after the setting up of One Unit from the first day of which Dr. Khan Sahib has been the Chief Minister, no complaints are claimed to have been made to him except by one or two witnesses. I am of the view that the maltreatments deposed about by the defence witnesses are not established. But even if the statements of the defence witnesses be believed I do not see how the misconduct of one or two police officers could have been used by the accused for maligning the Government in Pakistan to such an extent as to make the Pathans hate the Government as their enemies. I pass on to the Babra incident. It is proved on the record that on 12th August 1948, the police opened fire on Red Shirts. The number of casualties mentioned by Zawar Khan (D. W. 16 in Cr. O. 16 of 1956) was six to eight hundred killed, while the official estimate of the casualties was 24 killed and 35 wounded. The number of deaths mentioned by Zawar Khan appears to be highly exaggerated with the object of showing that the Red Shirts were butchered mercilessly, and with regard to that number there is on the record only the statement of a solitary witness who admits that he was sentenced in 1950 to imprison ment for three years and his property was confiscated. When giving his evidence, the witness produced certain docu ments which I placed on the record. One of these documents (Ex. ‑D. W. 16/3) is a certified copy of a judgment which shows that this man was sent to jail because he was proved to be participating in subversive activi ties against the State. On account of the bias of this witness exhibited in the witness‑box against the man who was at the helm of affairs in the N.‑W. F. Province at the time when he was sent to jail, I cannot place any reliance on his state ment to the effect that six to eight hundred persons were killed. It is, however, undeniable that there was firing by the police at the Red Shirts and if it is established that the firing was unjustified, the accused will, no doubt, be entitled to say that his offence was not as heinous as it would at first sight appear to be. It is proved on the record of each of the three cases that on 5th August 1948, if a week before the date of the firing of which the accused wanted to make capital against the Government, the Sub -Divisional Magistrate, at Charsadda had passed an order under section 144 of the Code of Criminal Procedure that no public meetings etc., were to be held. This order was passed by Mr. Gul Muhammad, who has since died, but the order is proved on all the three records by the deposition of Mr. Abdul Qaiyum Khan, C W. and of Qazi Aziz‑ur‑Rahman C. W. who in 1948 was the Deputy Superin tendent of Police at Charsadda. On 12th August 1948, a large number of Red Shirts are proved to have marched in a procession in defiance of the order under section 144 of the Code of Criminal Procedure, towards the place where the police, which were in a very small number, had been posted in order to keep the situation under control. The number of the Red Shirts in this procession was given by Mr. Aziz ur‑Rahman C. W. as ten thousand, some of whom were stated by him to be carrying fire‑arms which they had not refrained from using at the Sub‑Divisional Magistrate and the members of the police party. That the number of these persons who were openly defying the law was very large is proved not only from the statement of Mr. Aziz‑ur- Rahman who was examined by me as a Court witness in all the three cases, but also from other evidence. In Cr. O. No. 10 of 1956, the first witness for the defence, namely, Mst. Mariam, admitted that innumerable Red Shirts were coming in a body towards the place where the Magistrate and the police were. In Cr. O. No. 16 of 1956, Zawar Khan (D. W. 16) admitted that two or three thousand Red Shirts were there and added that the number of persons present was between twenty and twenty‑five thousand. It is further in evi dence that the Red Shirts had opposed the creation of Pakistan and if the authorities whose duty it was to keep law and order inferred that this large body of Red Shirts, some of whom carried firearms, and who had no scruples against using those firearms, wanted to create disorders on a large scale, their inference could not be said to be unjustified or rash. Moreover, there is evidence on the record of all the three cases in the statement of Mr. Abdul Qaiyum Khan, whom I have not the least reason to doubt, that in August 1948, when the Red Shirts considered it necessary to take out a procession of thousands some of whom carried arms, in defiance of a valid order passed by the Sub‑Divisional Magistrate at Charsadda, the law and order position in the Province was very bad and the police had been finding it difficult to keep people in control because many of the residents of the Province had unlicensed arms, and that the situation in Kashmir was that while the Indian troops were advancing the, Mujahiddin were on the retreat. All these facts taken together and even some, of them could have easily, and not at all without reason, been taken by any one as an indication that the Red Shirts resorted to creation of disturbance in the N.‑W. F. Province so that the situation in the Province may become uncontrollable. That the position of the law and order in the N.‑W, F. Province was far from satisfactory in August 1948, is also clear from the fact that, as stated by Mr. Abdul Qaiyum Khan C. W., flag‑march of the troops had to be resorted to in 1948 in the Mardan and the Peshawar Districts where the Red Shirts had substantial following. Because of the circumstantial evidence on the record, I can see no reason for doubting the statement of Mr. Abdul Qaiyum Khan as a Court witness that a few days before the firing at Babra, the Provincial Government had received information that the Red Shirts, who had opposed the creation of Pakistan, were about to create, disturbances which if successful could have had dire consequences. The incident at Babra naturally led to the taking of effective measures against the Red Shirts who, I might mention were declared an unlawful organisation which they are even now, under a notification issued by the West Pakistan Government. Punitive police force had to be posted at Charsadda and as under the law it is the persons whose conduct has led to that step being taken by Government under the Police Act who are liable to pay the expenses incurred thereon, the Red Shirts of Charsadda were made to pay about 50,000 Rupees. Properties of some prominent Red Shirts‑six in the Peshawar District of whom two were the sons of the accused; and ten in the Mardan District‑were ordered to be confiscated under the N.‑W. F. Province Public Safety Act, 1948, which was in force, but those properties were subsequently returned to their owners along with the income. If the persons who were temporarily deprived.; of their properties have any grievance because of that action, I have no doubt that the grievance is entirely uncalled for. Unfortunately there was loss of human life but in the cir cumstances that obtained then it was entirely unavoidable. The stitch in time mentioned in the proverb saves nine, but the stitch in time in the case of the incident at Babra saved many a nine. If the Government's hold in the N.‑W. F, Province had weakened, as the Red Shirts, from their conduct in August 1948, would appear to be wanting to see it do, the consequences could have been disastrous. The Red Shirts were shouting. that there should be Islamic Law in Pakistan though it would appear that they wanted to destroy or at least seriously damage an Islamic country, which had come into being just a year earlier in spite of their opposi tion. What was done by the Government was an administrative necessity and those who call it atrocities indulge in mis description. Some defence witnesses stated that the meeting of the Red Shirts on 12th August 1943, had been called by Dr. Khan Sahib to pray for the release of the accused who had been sent to prison about two months earlier. If the meeting was called by Dr. Khan Sahib, that may only indicate that he did not want it to assume the unlawful and violent character it did, but some days before 12th August 1948, Dr. Khan Sahib himself had been put under detention and he was not there to tell the Red Shirts that violence if indulged in by them will recoil upon themselves. While giving the narration of the evidence, I have said that Warid Khan and Muhammad Khan, D. Ws. 10 and 13, respectively in Cr. O. 16 of 1956, stated that the Government took no action against the Red Shirts before the Babra incident and it is, therefore, obvious that the police firing at Babra and the stern but entirely lawful action against the Red Shirts that followed it were not the capricious and atrocious acts of a Chief Minister who attempted by those means to remain in power but was necessitated by the course of events. On the evidence on the record, I cannot but hold that the action taken by the Government on 12th August 1948, at Babra deserves commendation rather than condem nation. In his address when the question of framing charges against the accused was considered, Mr. Mahmud Ali had argued that as there was no evidence that the speeches of the accused led to any repercussions as are mentioned in sections 123‑A, 124‑A or 153‑A of the P. P. C., the accused could not be convicted under those sections. It is proved on the record that at some of the meetings addressed by the accused, some members of the audience shouted "Pakistan Zindabad" but that cannot affect the liability of the accused if otherwise offences under sections 123‑A or 124‑A of the P. P. C. are disclosed against him. The fact that some members of the audience raised slogans in favour of Pakistan does not prove that the accused was not doing his best to achieve his object of advocating the abolition of the sovereignty of Pakistan on a part of its territories and bringing the Government in Pakistan into hatred and contempt. It is the act of the person who is tried under sections 123‑A and y 124‑A of the P. P. C. that is relevant and not the immediate re‑actions of the members of the audience. The poison the administration of which sections 123‑A and 124‑A of the P. P. C. make punishable might not take effect, but the one who administers it is guilty all the same. Poison of this sort does not generally take immediate effect, but spreads by stages till it has complete hold of the person to whom its doses have been administered. Moreover, the fact that some members of the audience expressed disagreement with the view the accused was ventilating cannot prove that the expression of disagreement was genuine because the slogans may have been raised by some persons to make the authorities believe that they were with them though in fact they may not have been. It is proved on the record that no Punjabi was assaulted after the speeches of the accused but that circumstance is as immaterial as the similar circumstance in case of the offences under sections 123‑A and 124‑A of the P. P. C. and the accused cannot take any benefit from it. Nor can the accused be benefited by the fact that while he was in confinement under due process of law, his followers, who had attempted to seriously prejudice the security and safety of the new‑born country had been dealt with with the severity they had themselves compelled the Government to adopt. The allegations of the prosecution in all the three cases are proved against the accused and I convict him under sections 123‑A and 124‑A of the P. P. C. in all the three cases as well as under section 153‑A of that Code in Cr. O. No. 18 of 1956 which relates to the speech made by the accused before the coming into force of the new Con stitution. With regard to the application of section 153‑A of the P. P. C. to the speeches in Cr. O. Nos. 10 and 16 of 1956 which were made after the coming into force of the new Constitution, Qazi Muhammad Aslam, the learned counsel for the State, whose arguments on facts and the provisions of the Penal Code were mere elaborate than his arguments on the questions relating to the Constitution, adopted the arguments of Mr. Manzur Qadir, who in his extremely learned and exhaustive address as amicus curiae had contended that necessary adaptations in the existing laws in Pakistan were automatically effected on 23rd March 1956, because Article 224 of the Constitution envisaged that adaptations which were necessary would be effected notwithstanding the fact that there was no Order by the President making such adaptations. The provisions of Article 224 of the Constitution which are relevant for our present purposes are contained in the first two clauses which read as follows: "224.‑(1) Notwithstanding the repeal of the enactments mentioned in Article 221, and save as is otherwise expressly provided in the Constitution, all laws (other than those en actments), including Ordinances, Orders‑in‑Council, Orders, rules, bye‑laws, regulations, notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Constitution Day, shall so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate legislature or other competent authority. Explanation 1: The expression 'laws' in this Article shall include Letters Patent constituting a High Court. Explanation 2 : In this Article 'in force' in relation to any law, means having effect as law whether or not the law has been brought into operation. (2) For the purpose of bringing the provisions of any law in force in Pakistan or any part thereof into accord with the provisions of the Constitution, the President may, within a period of two years from the Constitution Day, by Order, make such adaptations and modifications in such law, whether by way of amendment or repeal, as he may deem necessary or expedient, and any Order so made shall have effect from such date, whether before or after the date of the making of the Order, but not being prior to the Constitution Day, as may be specified in the Order. The contention of Mr. Manzur Qadir was that Clause 1 of Article 224 which says inter alia that all laws in force on the day on which the new Constitution comes into force shall, so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate legislature or other competent authority, means that the adaptations that are necessary to bring the law in conformity with the altered state of things must be deemed to have been effected as soon as the new Constitution came into force. It was on this branch of the case that Mr. Mahmud Ali did not, when addressing me as amicus curiae, adopt the arguments of Mr. Manzur Qadir. He said that an existing law could be adapted only by the President or in some cases by the Governor of a Province and if the President or a Governor did not make an adaptation, the law would continue to be as it existed on the Statute Book and if it does not apply to the circumstances of a particular case; the Courts are not to act as legislators and amend the law in order that it may apply to the facts of the case before them. Both arguments are plausible but it appears to me that Mr. Mahmud Ali was on firmer ground than Mr. Mauzur Qadir. The word 'adaptations' is used in both the first and the second Clauses of Article 224, and, therefore, it may be safely presumed that it has identical meaning for the purposes of both Clauses, with the result that Clauses 1 and 2 can be reconciled with each other only if the adaptations mentioned in Clause 1 are only those which can be made by the President under the second Clause in the laws in force in Pakistan or any parts thereof. It is true that Clause 1 of Article 224 talks of necessary adaptations while Clause 2 talks of adaptations for the purposes of bringing the provisions of any law in force in Pakistan into accord with the provisions of the Constitution, but as the adaptations mentioned in Clause 1 have also become necessary because of the enforcement of the Constitution, it is obvious that precisely the same adaptations are dealt with in both the Clauses. Moreover, if all necessary adaptations had to become automatically effected by reason V of the first Clause of Article 224 as soon as the new V Constitution comes into force, it would not have been necessary to give power to anyone to make adaptations, and yet one finds that the President has been given the power by Clause 2 of Article 224 to make adaptations within a period of two years from the Constitution Day, and has been empowered by the Clause 3 of Article 224 to authorise the Governor of a Province to exercise in relation to that Province the powers conferred upon him by Clause 2 in respect of laws relating to matters enumerated in the Provincial List of Legislative Powers under the new Consti tution. If necessary adaptations are not specified by the authority authorised by the Constitution to specify them, confusion must in certain cases arise because one person may think that a particular adaptation was necessary while another may think that one entirely different was, and I am certain that the Constituent Assembly never intended that by passing the Constitution they should make some laws so uncertain that their application may become a difficult task. I, therefore, hold that under Article 224 of the new Constitution as it stood before the President issued his Order XV of 1956 on 12th November 1956, it was not open w to anyone but the President or a Governor of a Province if authorised by the President with respect to the matters mentioned in the Provincial List, to make any adaptation in any of the laws in force at the time of the enforcement of the Constitution. The specification of adaptations) in section 153‑A of the P. P. C. is more necessary than it may be in regard to the majority of the other provisions of law because even if not a single word of this section as it stood on 23rd March 1956, is changed, the section will not become a dead letter because though it may not be applicable to the promotion of enmity and hatred between different classes of the citizens of Pakistan who ceased to be subjects of Her Majesty on 23rd March 1956, it will still apply if feelings of enmity and hatred are promoted between different classes of the subjects of Her Majesty who may be residing in Pakistan. This brings me to the President's Order XV of 1956 which has been reproduced 'in extenso in an earlier part of this judgment. It was contended by Mr. Mahmud Ali that the power given by this Order to Courts and Tribunals to make necessary adaptations in laws was very unusual and was opposed to all principles because those who had to Y administer law should not have the power to make it. If the Order is considered only from the point of view of policy, this argument has weight but considered purely from a legal point of view‑which is the only one allowed to be considered in a Court of law the Order is not defective. It appears to me however, that the President's Order XV of 1956 cannot help the prosecution in the present case in spite of the fact that the President can make adaptations within two years of the Constitution Day and can make an adaptation applicable retrospectively and that power has now been given to Courts by Clause 1 of the Order. Article 6 of the Constitution provides, 'inter alia', that no person shall be punished for an act which was not punishable by law when the act was done, which means that one act cannot be made a criminal offence retrospectively, If I now make adaptations in section 153‑A of the P. P. C. and assume that on the dates on which the speeches which are the subject of Cr. O. Nos. 10 and 16 of 1956, both of which speeches were made after the coming into force of the new Constitution, section 153‑A was applicable to promotion of feelings of enmity and hatred between different classes of citizens of Pakistan, I would be making punishable an act which was not an offence when it was done. Consequently I acquit the accused of the offences under section 153‑A of the P. P. C. with regard to the speeches made on 24th March 1956, and 5th June 1956, though they were intended and had a tendency to create feelings of enmity and hatred between the Punjabis and the Pathans. The result is that while the accused is convicted under sections 123‑A, 124‑A and 1.53‑A of the P. P. C. in Cr. O. No. 18 of 1956. he is convicted only under sections 123‑A and 124A in Cr. O. No. 10 of 1956 and Cr. O. No. 16 of 1956. This leaves only the question of the sentence to be dealt with. After anxious deliberation I have decided to pass a sentence of fine only. For each of the three offences under section 123‑A of the P. P. C., the accused is sentenced to a fine of Rs. 2,500; for each of the three offences under section 124‑A of the P. P. C., the accused is sentenced to a fine of Rs. 2,000 while for the offence under section 153‑A of the P. P. C., he is sentenced to pay a fine of Rs.

500. The result is that the accused will pay as fine Rs. 4,500, Rs. 4,500 and Rs. 5,000 in Cr. O. No. 10 of 1956, Cr. O. No. 16 of 1956 and Cr. O. No. 18 of 1956, respectively. As a sentence of imprison ment is imperative on conviction for an offence under section 123‑A of the P. P. C., the accused is sentenced to imprisonment till the rising of the Court for the offence under section 123‑A proved against him in each of the three cases, but these sentences shall run concurrently. There will be no sentence of imprisonment in default of payment of fine; but if it has not been paid by 23rd March 1957, the papers will be laid Z before me on the next but one working day after that date so that warrants be issued for realisation of the fine by attachment and sale of the movable and immovable property of the accused. Lest it should be thought that I consider the offences proved against the accused to be not of a very serious character, I will give my reasons for refraining from passing a sentence of imprisonment. The audience at none of the meetings for making speeches at which the accused has been convicted A was large. The trial has been protracted with the result that the accused has remained in jail as an under‑trial prisoner for about seven months. The accused is an old man of 67 and though he is proved to have made eighty four speeches in a period of less than four months from 14th February 1956, to 6th June 1956, his health during the trial was not good and he had at times to remain in the hospital. Keeping a person like the accused in prison costs the Government, and eventually the taxpayer, quite a substantial amount because all amenities are provided to the prisoner and the only effect of imprisonment that he feels is that his movements are restricted. And last but not the least there is the fact that though I have not accepted his statements made before me during the trial, that he had no intention either to promote feelings of hatred, disaffection or contempt against the Government established by law in Pakistan or to demand an independent State for the Pathans; when he made the speeches for which he was tried, I am hoping that he will henceforth desist from indulging in activities which have a tendency to malign the country of which he is a citizen and which, though it may appear to him to have treated him and some of his followers harshly, has, by all canons, as many claims on him‑at least in so far as its security is con cerned‑as on its other citizens. I cannot close without touching on a point which is of some importance, I have mentioned in the body of this order that during the trial Mr. Mahmud Ali made an attempt to prove : that neither the Provincial Cabinet nor any of its Members had been in favour of the prosecution of the accused and that Dr. Khan Sahib had made that declaration in a public speech at Peshawar. To my great relief, the attempt of Mr. Mahmud Ali did not bear fruit, but if .it had, I confess that I would have wished that the Chief Minister was indulging in a harmless mis‑statement when he told his audience that he and his colleagues had not moved in the matter. If prompt action is not taken by the Provincial Cabinet because of red tape, tolerance, indulgence or indifference against persons who by words, spoken or written, or by other means of communication, advocate the abolition of the sovereignty of Pakistan on a part of its territories, or indulge in utterances which depict Pakistan as a country having ill‑will against a section of its population, Pakistan runs a risk of 'finding at no distant date that it is more Pathanless than it would have been if, instead of being in its favour, the referendum held in the now defunct North‑West Frontier Province under the British Government's Plan dated the 3rd June 1947, had gone against it. A. R. Order accordingly.