P L D 1962 (W (PLP)

M. R. KAYANI, C. J.‑‑This Full Bench has been constituted to examine the application of Sheikh Muhammad Khalil, Proprietor of the Premier Book House, Kutchery Road, Lahore, made under section 99‑B, Cr. P. C., for the setting aside of an order of the West Pakistan Government, dated the 4th of October 1960, by which a book entitled "Development of Muslim Theology, Juris prudence and Constitutional Theory" by Duncan B. Macdonal, published by the applicant, was forfeited to Government:

2. The book was first published in Amrica in 1903 and again in 1926. In Pakistan it was first published by the applicant in 1960, and there is no doubt that it is a book of research. It has also been recommended by the Punjab University as a reading course in Political Science for the Master of Arts degree.

3. The reasons for forfeiture, as stated In the order of Government, are that the book in question (1) tends to promote feelings of enmity between different sects of Muslims of Pakistan ; and (2) it is written "with deliberate and malicious intention of outraging the religious feelings of different sects of Muslims of Pakistan and Muslims generally, attempts to insult the religious feelings of different sects of Muslims of Pakistan and Muslims In general and the publication of which is punishable under section 153‑A and section 295‑A of the Pakistan Penal Code".

4. Section 153‑A is to the following effect :‑ "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 imprison ment which may extend to two years, or with fine, or with both."

5. It will be noticed that while the section itself deals with different "classes" of people of Pakistan, the order of Government takes notice of the religious feelings of the different "sects" of Muslims. Now if this book contains any objectionable reading (and we shall presently advert to those passages), it injures the feelings of Muslims in general and quite obviously there is no intention to set one sect against another. Section 153‑A was intended to cover a case where a Shia, for instance, injures the religious feelings of a Sunni, or a Muslim injures the feelings of a Hindu, and was not intended to apply to the case of an American who, sitting in America, wrote a book of research in 1903, Inci dentally containing opinions which displeased Muslims in Pakistan.

6. Section 295‑A, P. P. C. is as follows:‑ "Whoever, with deliberate and malicious intention of out raging the religious feelings of any class of Her Majesty's subjects, by words, either spoken or written, or by visible repre sentations insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprison ment of either description for a term which may extend to two years, or with fine, or with both."

7. Here it will be noticed that there must be an intention to outrage the religious feelings of a class of people and that intention should not only be deliberate but also malicious. An intention itself contains the element of deliberation, but since a person may normally be assumed to intend the consequence of his acts, the word 'deliberate' was used to make it a very purposeful intention, and it was further strengthened by the use of a malicious adjective ; so that we should have to find, before we can uphold the order of Government, that the primary purpose of the book was to outrage the feelings of Muslims, and to do so maliciously. In the preface, however, we find a different purpose: "In English or German or French there is no book to which a teacher may send his pupils for brief guidance on the development of these institu tions ; on the development of law there are only scattered and fragmentary papers, and on the development of theology there Is practically nothing . . . . . . . The following pages therefore form a kind of forlorn attempt, a rushing in on the part of one who is sure he is not an angel and Is in grave doubt on the question of folly, but who also sees a gap and no great alacrity on the part of his betters towards filling it".

8. We are, therefore, of the opinion that this book does not fall within the mischief of sections 153‑A and 295‑A of the Penal Code. Since, however, it does contain some offending passages, the petitioner's counsel, Sheikh Muhammad Shafi, who incidentally is the father of the publisher, has offered to delete such of these as appear to us to be offensive. In doing so we are taking into consideration the fact that the research value of the book has to be preserved and that certain passages, even though somewhat offensive, should be left Intact in order to give an idea to the research students of the personal opinion which the author held about Muslim theology.

9. The first of the passages to which exception has been taken by the Additional Advocate‑General is at page 10 and is as follows: ‑ "For, in truth, in the development of no other State have little causes produced such great effects as here. For example, it may be said, broadly and yet truly, that the seclusion of Muslim women with all its disastrous effects at the present day for a population of two hundred millions, runs back to the fact that A'isha, the fourteen‑years‑old wife of Muhammad, once lost a necklace under what the gossips of the time thought were suspicious circumstances."

10. We do not find any objection to this passage and do not agree that it is the author's opinion that the circumstances in which the necklace was lost were suspicious. The story is stated in all good commentaries on the Qur'an and in worse terms.

11. The next passage is at page

21. This relates to the civil war in which All found himself after the murder of Uthman. "Men thought, and probably rightly, that he could have saved the aged Uthman if he had willed, and they even went to the length of accusing him of being art and part in the murder itself . . . . . Further, there were two other old Companions of the Prophet, Talha and al‑Zubayr, who thought that they had a still better claim to the Khalifate ; and they were joined by A'isha, the favourite wife of Muhammad, now, as finished intrigante, the evil genius of Islam. Ali had reaped all the advantage of the conspiracy and murder, and it was easy to raise against him the cry of revenge for Uthman."

12. We are of the opinion that the sentence beginning with "Further" should be put in the following shape:‑ "Further, there were two other old Companions of the Prophet, Talha and al‑Zubayr, who thought they had a still better claim to the Khalifate ; and they were joined by A'isha, the favourite wife of Muhammad, . . . . . ."

13. The dots will indicate that something has been omitted. The aspersion on Ali is mild and it is not based on the opinion of

14. Page 56.‑This is mentioned in the order of Government, but the learned Additional Advocate‑General told us that there was nothing objectionable in it.

15. Page 69.‑This passage deals with Muhammad as a legislator. "Till his death, ten years later, he ruled his community as an absolute monarch, as a prophet in his own right. He sat in the gate and judged the people. He had no need of a code, for his own will was enough. He followed the customary law of the town, as it has been described above, when it suited him, and when he judged that it was best. If not, he left it and there was a revelation. So the legislative part of the Qur'an grew out of such scraps sent down out of heaven to meet the needs of the squabbles and questions of the townsfolk of al‑Madina. The system was one of pure opportunism ; but of what body of legislation can that not be said. Of course, on the one hand, not all decisions were backed by a revelation, and Muhammad seems, on the other, to have made a few attempts to deal systematically with certain standing and constantly recurring problems‑such, for example, as the conflicting claims of heirs in an estate, and the whole complicated questions of divorce‑but in general, the position holds that Muhammad as a lawyer lived from hand to mouth."

16. We find nothing objectionable in the words "absolute monarch". The word "opportunism", however, although derived from of opportunity, is often used to imply a sacrifice of prin ciple and is, therefore, repugnant. There is no doubt that the reference to revelation is sarcastic. We, therefore, propose that the passage should be reshaped as follows: "Till his death, ten years later, he ruled his community as an absolute monarch, as a prophet in his own right. He sat in the gate and judged the people. He had no need of a code, for his own will was enough. He followed the customary law of the town, as it has been described above . . . . . when he judged that it was best. If not . . . . . there was a revelation. Of course, on the one hand, not all decisions were backed by a relevation, and Muhammad seems, on the other, to have made a few attempts to deal systematically with certain standing and con stantly recurring problems‑such, for example, as the conflicting claims of heirs in an estate, and the whole complicated question of divorce‑but in general, the position holds that Muhammad as a lawyer lived from hand to mouth."

17. Page 70.‑ "From time to time he got into difficulties. A revelation proved too wide or too narrow, or left out some important possibility. Then there came another to supplement or correct, or even to set the first quite aside‑Muhammad had no scruples about progressive relevation as applied to himself. Thus through these interpretive acts, he may call them, many flat contradictions have come into the Qur'an and have proved the delight of generations of Muslim Jurisconsults."

18. This may be reshaped in the following manner: ‑ " . . . . A revelation proved too wide or too narrow, or left out some important possibility. Then there came another to supplement or correct, or even to set the first quite aside . . . . . Thus, though these interpretive acts, as we may call them, many flat contradictions have come into the Qur'an and have proved the delight of generations of Muslim Jurisconsults."

19. Same Page.‑ "The Jews, it is true, were soon eliminated, but the influence of their law lasted in the customary law of the town long after they themselves had become insignificant. Still, with all this, the suitor before Muhammad had no certainty on what basis his claims would be judged : whether it would the old law of the town, or a rough equity based on Muhammad's own ideas, or a special revelation ad hoc. So far, then, we may be said to have the three elements‑common law, equity, legislation."

20. If the following sentence is omitted, it will make no difference to the context: ‑ "Still, with all this, the suitor before Muhammad had no certainty on what basis his claims would be judged ; whether it would be the old law of the town, or a rough equity based on Muhammad's own ideas, or a special revelation ad hoc."

21. Page 121‑122.‑ "Traditions, too, which have reached us, even show him setting his face against all discussions of dogma and repeating again and again, in answer to mataphysical and theological questions, the crude anthropomorphisms of the Quran. But these questions and answers are probably forgeries of the later traditional school, shadows of future warfare thrown back upon the screen of the patriarchal age."

22. Apart from the fact that the second sentence qualifies the author's opinion in so far as It finds expression in the word crude", there is no doubt that a section of the Muslim themselves is guilty of ascribing a human form to the deity, losing sight of the figurative meaning which is intended to be conveyed by the use of the terms "seeing" and "hearing" in relation to God. We, therefore, do not find any harm in the use of the word "crude", particularly when used by an outsider who will no doubt be taken by the plain meaning of the Qur'an.

23. Page 127‑128.‑ "The second sect, that of Qadarites, had its origin in a philosophical necessity of the human mind. A perception of contradiction between man's consciousness of freedom and responsibility, on the one hand, and the absolute rule and predestination of God, on the other, is the usual beginning of the thinking life, both in individuals and in races. It was so in Islam. In theology as in law, Muhammad had been an oppor unist pure and simple. On the one hand, his Allah is the absolute Semitic despot who guides aright and leads astray, who seals up the hearts of men and opens them again, who is mighty over all. On the other hand, men are exhorted to repentance, and punishment is threatened against them if they remain hardened in their unbelief. All these phases of a wandering and intensely subjective mind, which lived only in the perception of the moment, appear in the Qur'an. Muhammad was a poet rather than a theologian ; just as he was a prophet rather than a legislator."

24. We propose that the passage should be reshaped as follows: ‑ "The second sect that of Qadarites, had its origin in a philosophical necessity of the human mind. A perception of contradiction between man's consciousness of freedom and responsibility, on the one band, and the absolute rule and predestination of God, on the other, is the usual beginning of the thinking life, both in individuals and in races. It was so in Islam . . . . .. Allah is the absolute Simitic despot who guides aright and leads astray, who seals up the hearts of men and opens them again, who is mighty over all. On the other hand, men are exhorted to repentance, and punishment is threatened against them if they remain hardened in their unbelief. All these phases of a wandering and intensely subjective mind, which lived only in the perception of the moment, appear in the Qur'an. Muhammad was . . . . . a prophet rather than a legislator."

26. Page 145.‑ "The anthropomorphic God of Muhammad, who has face and bands, is seen in paradise by the believer and settles Himself firmly upon his throne, becomes a spirit, and a spirit, too, of the vaguest kind "

26. This statement has bees made in relation to the Mutazilites who have tried to reconcile Greek philosophy with Muslim theology, and there is no misstatement of fact here.

27. Page 150.‑ "But, among the Arabs, a jealous and vain people, if there was one thing on which each was more jealous and vain than another, It was skill in working with words. The superiority of Muhammad as a Prophet of God they might endure, though often with a bad grace ; but Muhammad as a rival and un approachable literary artist they could not do away with. So we find satire of the weaknesses of the Qur'an appearing here and there, and it came to be a sign of emancipation and freedom from prejudice to examine it in detail and balance it against other products of the Arab genius 28 We see nothing repugnant in this passage. It merely expresses the mind of literary Arabia,

29. Page 178‑179.‑Talking of Sufis, the author makes the following remarks: ‑ "These services were fiercely attacked by the orthodox theologians, but survived and are the darwish functions which tourists still go to see at Constantinople and Cairo. But the more private and personal dhikrs of individual Sufis each In his house repeating his Qur'anic litanies through the night, until to the passer‑by it sounded like a humming of bees or the unceasing drip of roof‑gutters, these seem, in the course of the third century, to have fallen before ridicule and accusations of heresy."

30. We do not think that the description is incorrect or Insulting.

31. No other passages were shown to us.

32. We set aside the order of forfeiture and direct that all forfeited copies be restored to the applicant so that he might delete the passage suggested by us. K. B. A. Application accepted.