P L D 1959 (W (PLP)

MUHAMMAD SHAFI, J.‑" Laar " is a Pashto journal in respect of which a declaration was made by Mr. Muhammad Muzaffar " Zafar " son of Gul Baz Khan, under section 5 of the Press and Registration of Books Act, 1867, on the 27th of March, 1956, before the District Magistrate, Peshawar. On the 9th of May, 1958, the Governor of West Pakistan, purporting to act under subsection (3) of section 7 of the Press (Emergency Powers) Act, XXIII of 1931, ordered Mr. Muhammad Muzaffar Zafar to deposit with the District Magistrate, Peshawar, on or before the 21st of May, 1958, security to the amount of Rs. 3,000 or the equivalent thereof in securities of the Government of Pakistan as he might choose. Mr. Zafar has applied to this Court for setting aside the aforementioned order under section 23 of the said Act. It will be profitable to reproduce section 7, subsection (3) in verbatim :‑ " Whenever it appears to the Provincial Government that a newspaper published within its territories in respect of which security under the provisions of this Act has not been required, or having been required has been refunded under subsection (2), contains any words, signs, or visible representations of the nature described in section 4, subsection (1), the Provincial Government may, by notice in writing to the publisher of such newspaper, stating or describing such words, signs or visible representations, require the publisher to deposit with the Magistrate within whose jurisdiction the newspaper is published, security to such an amount, ‑not being less than five hundred or more than three thousand rupees, as the Provincial Govern ment may think fit to require, in money or the equivalent thereof in security of the Central Government as the person making the deposit may choose." It is clear from the provisions of the above subsection that the Provincial Government, before it requires any person to deposit the security, must objectively come to the conclusion that the newspaper or journal contained words, signs or visible representa tions which offend against the provisions of section 4 of the said Act. After it has arrived at this conclusion, it must describe them in the notice. What the Provincial Government has done in the present case is that it said in the notice that the newspaper had published certain articles and poems, the copies of which were enclosed with the notice which offend clauses (cc) and (d) of subsection (1) of section

4. These clauses are as under :‑ (cc) . . . to condemn the creation of Pakistan by virtue of the Partition of India which was effected on the fifteenth day of August, 1947, or to 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 amalgamation with neighbouring States or otherwise, or (d) . . . to bring into hatred or contempt His Majesty or the government established by law in the Provinces and the Capital of the Federation or the administration of justice in the Provinces and the Capital of the Federation or any class or section of His Majesty's subjects in the Provinces and the Capital of the Federation, or to excite disaffection towards His Majesty or the said Government. After the Constitution of the Islamic Republic of Pakistan came into force, these two clauses shall have to be read in con junction with, and as limited by Art. 8 of the Constitution, which enjoins that every citizen shall have the right of freedom of speech and expression subject to any reasonable restrictions imposed by law in the interest of the security of Pakistan, friendly relations with the foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence. The purpose of the Constitution is that there should be as few restrictions on the freedom of the Press as in the light of the conditions prevailing in a country are absolutely essential. In fact, no restriction should be placed on the freedom of the Press except in times of grave emergencies, such as, war, civil commotion on a large scale, and even then only in respect of matters involving the security of the State. Press is the mouthpiece of the public opinion. Its free functioning is more important now when the country has become free than it was before. It has to work as a link between the Parliament which frames legislation and the public which express their hope and aspirations through it. In the case in hand, it was not enough for the Governor to just write in the notice that the offence was taken by him against the articles and the poems contained in thirteen typed pages. Some of the articles and the poems or at least portions thereof were absolutely harmless. The Governor, therefore, should have intelligently considered the articles and the poems and detached from them the words which he thought violated the law. He should not have left it to the Courts to pick out such words from the articles and poems in question. It is possible for the Courts to hold that certain article or, poems is not offensive, although the Governor thought otherwise. We have, therefore, arrived at the conclusion that the notice, as it stands, is highly defective and cannot be enforced. The application is, thus, accepted, and' the order of the Governor set aside. The State will pay the costs of the petitioner. Counsel's fee Rs.

500. ABDUL HAMID, J.‑I am of the same view but my reasons are rather simple. Security can be demanded under section 7 of the Press Emergency Powers Act of 1931 where the newspaper contains any words of the nature described in subsection (1) of section 4 of the Act. In this case notice for depositing security was issued on the ground that the newspaper contained words which fell within the ambit of clauses (cc) and (d) of subsection (1) of section 4 of the Act. It was incumbent on the Government to quote, from the printed material, those passages which fell within the purview of clauses (cc) and (d) of subsection (1) of section 4 of the Act. Instead .of citing quotations from the printed material to show that they contain words of the nature described in those clauses, the notice simply said that the articles and poems published in seven issues of the paper contained words of the nature described in clauses (cc) and (d) of subsection (1) of section 4 of the Act. A charge of this description would set the Court on the search of offensive passages from documents of a large size and bulk. In such an event it will be the Court which will become the accuser and not the Provincial Government. A notice of such a tenor is contrary to the requirements of law and is incapable of giving rise to a valid order. The law demand: that there should be, in the notice itself, pointed references to the objectionable passages and that is wanting in this case. For this defect in the notice, the‑order should fail. This application should therefore be accepted. HABIBULLAH KHAN, J.‑The notice in question does not fulfil the requirement of law, and as such, it is not a legal and valid notice. The language of subsection (3) of section 7 is so clear that it leaves no room for doubt, that the notice must state or describe the objectionable passages in the printed material. The underlying object is to furnish information to the publisher of the newspaper, as to what portions of the printed material are objectionable, so that he may not render his security liable to forfeiture by publishing material to which exception has been taken. It is quite obvious, that if the notice makes no reference to the objectionable passages, it will not be possible for the publisher to know, as to what material he should or should not publish in future. Therefore, the notice being defective, the impugned order cannot be enforced. A. H. Application accepted.