P L D 1964 (W (PLP)

This Revision Petition is against the order of the learned Special Magistrate, West Pakistan, (Mian Muzaffaruddin), disallowing certain questions put by the defence counsel to a defence witness in the course of a prosecution for sedition now pending against the applicant/accused before this Magistrate.

2. Briefly, the facts giving rise to this matter are that a prosecution under section 124‑A, P. P. C. was filed by the District Magistrate, Karachi, against the applicant/accused in the Court of the Special Magistrate, West Pakistan. A charge was framed against the applicant/accused and the case is now at the stage of defence. The case for the prosecution, as reflected in this charge, is that the applicant in the course of his speech delivered by him on the 22nd August 1962, before a public audi ence in Karachi, attacked the Government established by law and the President of Pakistan attributing motives to them for ordering the re‑arrest of Akbar Khan Bugti, and describing the Govern ment as wolves in the garb of sheep. In the course of this speech the applicant/accused addressing the President of Pakistan said that in Baluchistan he moved about under the shadow of bayonets because of his actions and deeds and the atrocities committed by him during the Martial Law Regime in Baluchistan. A reference was also made in this speech to the concentration camps opened in Baluchistan by the President in which the internees were treated in an inhuman way by being hanged up with their heads downwards and their faces drawned in buckets full of water till they became senseless. The learned counsel for the applicant/accused when examining his defence witnesses put in the box as D. W. 9 one Mir Gul Khan Nasir son of Mir Habib Khan who stated that he had been sent to the Coolie Camp at Quetta by order of the Political Agent, Chagai. The witness in the course of his evidence described this camp as "a slaughter house" but before he could enlarge upon the alleged atrocities committed in this camp and referred to in the speech of the accused the learned Additional Advocate‑General appearing on behalf of the prosecution objected to the introduction of this subject on the ground that‑ "Truth and justification is no defence in a case under section 124‑A, P. P. C." An issue was thus raised upon the admissibility of such questions intended to be put by the defence counsel to the witness so as to enable the witness to dwell on the alleged atrocities committed in the said camp and the learned Special Magistrate after having heard elaborate arguments on this issue held that such evidence is inadmissible. The learned Magistrate concluded his order with these words "If persons accused of sedition were to be allowed to produce evidence to prove the truth of their speeches or writings and to justify their actions, it would afford them an opportunity of bringing on record far more seditious matters than the impugned speech or writing itself and would create extremely bad feelings against Government, which could not have been contemplated by the framers of the Penal Code."

3. Appearing on behalf of the applicant/accused Mr. Azizullah Shaikh Barrister‑at‑law, raised three main contentions. He argued, in the first place, that although truth is no answer to a charge for sedition, yet in as much as the punishment provided in the section ranges from a mere fine to transporta tion for life, an accused is entitled in order to claim a lesser sentence to enter into the facts of the case and to prove the truth of the allegations made by him. Secondly, Mr. Azizullah pointed out that an accused facing a charge under section 124‑A, P. P. C. cannot claim the benefit of Explanation 3 to this section unless he establishes the facts as stated by him in his speech. Thirdly, the learned counsel submitted that under section 105 of the Evidence Act, the burden is upon an accused person to prove the special circumstances entitling him to the benefit of Explana tion 3 to section 124‑A, P. P. C. The learned defence Advocate in support of these submissions of his relied upon a passage appearing in para. 20 of Vol. I of Gour's Penal Code at page 626 and upon two reported cases namely The State v. Abdul Crhaffar Khan (P L D 1957 Lab. 142) and decision of the Privy Council in the case of Emperor v. Sadashiv Narayan Bhalero (P L D 1947 P C 32).

4. Mr. Haleem the learned Assistant Advocate‑General appearing on behalf of the State submitted that under no circum stances can the truth of an allegation be considered as a defence to a charge of sedition. Referring to Halsbury's Laws of England (Third Edn.) Vol. 10 at page 572 he relied upon a passage in para. 1060 in these words "If words spoken or published are seditious, it is no defence that they are true, and evidence to prove their truth is inadmissible." The learned State counsel then referred me to the case of Ram Chandra v. Emperor (A I R 1930 Lah. 371) in which it was held that truth does not excuse seditious commentary. He also relied upon the Full Bench Ruling of the Allahabad High Court in the case of Queen‑Empress v. Amba Prasad (I L R 20 All. 55) for his submis sion that the question as to the quantum of sentence to be imposed in the case of an offence for sedition is dependent upon the consequences of the speech and not upon the truth or otherwise of the seditious commentary. Finally, he referred to the judgment of Wahiduddin Ahmed, J. when considering the bail application filed in this Court on behalf of the present applicant and reported in Ata Ullah Khan v. State (P L D 1963 Kar, 136). In para. 10 of this judgment that learned Judge has said "In the eye of law the charge of sedition is always a serious charge. But circumstances may either aggravate or minimize that offence. In certain circumstances the consequences may be negligible and the offence may prove to be of a trivial nature. It is for this reason that the Legislature has prescribed as an alternative to punishment of transportation for life a shorter period of sentence including imprisonment for three years."

5. In order to appreciate in its proper perspective the point or points that arise for consideration in this matter, it is eminently desirable that one should at first, be clear in one's own mind as to the precise nature of an offence under section 124‑A, P. P. C. It is necessary that the essential ingredients of the offence of sedition should first be clearly understood. Now, section 124‑A, P. P. C. is in these words "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 the Central or Provincial Government established by law 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." Examining the language of this section, it is plain that the gist of an offence under this section lies in using words or signs calcula ted to bring or attempting to bring into hatred or contempt or to excite or attempt to excite disaffection towards the Central or Provincial Government established by law. Therefore, it is the use of such words or signs that really constitutes the offence described in section 124‑A, P. P. C. Now, this being so, it, naturally follows that the question as to the truth or otherwise) of the words so used is a question wholly irrelevant to a considera tion as to whether an offence under this section has been made out or not. The truth of the allegation alleged to be seditious can never operate as a defence to such an allegation, and this proposition is accepted by Halsbury in his Laws of England (Third Edition) Volume 10, para. 1060 at page 572 set out above. This same view was also held by Shabir Ahmad, J. in the case of The State v. Abdul Ghaffar Khan. At page 186 of this lengthy judgment, the learned Judge states "I may 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 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."

6. There remains, however, for consideration the further question as to whether the truth of a seditious allegation can serve to operate as a mitigating circumstance in the matter of sentence. This is really the main point urged in this Revision Petition by Mr. Azizullah Shaikh, the learned counsel appearing on behalf of the petitioner. His main contention was that if he is able to prove on behalf of his client that the allegations made by him in his speech as to the atrocities committed in the Coolie Camp at Quetta were true, then his client may be entitled to a lighter sentence. Mr. Azizullah placed reliance for this submission upon the following passage in the aforesaid judgment of Shabir Ahmed, J.‑ "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."

7. A perusal of section 124‑A, P. P. C. makes it plaint that the punishment prescribed for an offence under this section ranges from a mere fine to the maximum punishment of transportation for life. In order to determine the precise punishment that may be inflicted from this wide range offered by the section itself, some useful yardstick or measure of punishment must be deter mined upon. In doing so, attention should naturally first be concentrated upon the language of the section itself. Now, one of the very first ingredients of the offence of sedition, as indeed of all offences, is the intention of the accused. In defending himself against a charge of sedition, the speaker or writer may well desire to explain his intention in order to show that he was not actuated by any evil intention or malicious motive. Indeed, explanations 2 and 3 which were added to section 124‑A, P. P. C. by section 4 of the Indian Penal Code Amendment Act, 1898 (IV of 1898), specifically provide for comments expressing dis approbation either of the measures of the Government or of its administrative or other action with a view to obtaining their alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection. Therefore, a person charged with sedition, may well desire to explain his intention and to show that he was only, acting upon a genuine desire or motive directed towards obtaining an alteration either in the measures of the Government, or its administrative or other action. To achieve this end, such an accused may well desire to place material on the record indicating the truth of the allega tions made by him. His stand in Court may be that it is necessary to establish the truth of the allegations made by him so as to obtain the alteration or change sought for by him in the Government measures or orders or action. Further, a person charged with sedition may also desire to lead evidence to show that what he said or wrote was in fact true in order to be able to reduce the seriousness of the offence with which he is charged, and thus obtain a lighter sentence. It is a well‑established principle of the Criminal Law that punishments must fit the crime and, therefore, the quantum of punishment is dependent upon the seriousness of the offence committed. Thus the truth of the seditious commentary becomes relevant to the proceedings in order that the accused may succeed in securing a lighter sentence from the Court. Moreover, this point, that the truth or other wise of a seditious commentary can operate as a mitigating circumstance in the matter of sentence, has already once before been considered by a Judge of this High Court in the case of State v. Abdul Ghafar Khan, wherein the view was expressed that the truth of an allegation may be a mitigation of the offence. Of course, it should be remembered here that the question whether the material sought to be placed on record by an accused in a sedition case in order to establish the truth of the allegation whether it be for the purpose of explaining his intention, or for the purpose of serving as a mitigating circumstance in the matter of sentence, will ultimately prevail or not, is a question that must solely be decided by the trial Judge or Magistrate, but surely such an accused person while examining his defence witnesses should not be prevented or shut out from an opportunity of placing such material on the record of the case.

8. Mr. Haleem, the learned Assistant Advocate‑General, contended in the course of his arguments that the quantum of sentence to be imposed in the case of an offence for sedition, is dependent upon the consequences of the speech, and in support of this contention he relied upon a judgment of the Allahabad High Court in the case of Queen‑Empress v. Amba Prasad. But although this case was decided by a Full Bench of the Allahabad High Court, it is a case of the year 1897, and it was decided upon section 124‑A, as it stood before the amendment brought about by Act IV of 1898. I have already mentioned above in this judgment that Explanations 2 and 3 to section 124‑A, as they now stand, did not exist prior to 1898, and, therefore, I am not disposed towards placing reliance upon this ancient Full Bench decision of the Allahabad High Court. Mr. Haleem also relied upon the judgment of Wahiduddin Ahmed, J. when deciding a bail application presented to him on behalf of the present applicant/accused, and reported In P I. D 1963 Kar.

136. In particular, reliance was placed upon paragraph 10 of this judgment which has already been reproduced above in paragraph

4. But reading this judgment as a whole, it seems to me that these remarks in para. 10 upon which reliance is placed by the learned State Advocate are more in the nature of obiter dicta than a considered and weighty statement as to the law on this subject. In this reported judgment, the learned Judge was obviously considering only the question whether the applicant, who was facing a sedition charge, should be released on bail. In considering this question, Wahiduddin Ahmed, J. was thinking of the various punishments that can be inflicted upon an accused in such a case in order to reach a conclusion upon the sole question before him at the time, namely, whether the applicant/ accused should or should not be enlarged on bail. This judgment then cannot be considered as an authoritative pronouncement in support of the proposition urged by the learned State counsel that the quantum of punishment to be imposed in a sedition case is dependent upon the consequences of the seditious commentary.

9. However, in any event, whether the consequences of a seditious speech may or may not be regarded as the yardstick or measure for determining punishment, it cannot be postulated that the truth of the seditious commentary is wholly irrelevant for this purpose and that, therefore, the defence counsel must be precluded from placing material on the record of the case intended to establish the truth of the seditious allegation. I, therefore, allow this revision application and set aside the order of the Special Magistrate, West Pakistan, dated 25th July 1963, the impugned order in this case. K. B. A. Petition accepted.