1969L39 (PLP)

MUHAMMAD GUL, J.‑This writ petition under Article 98 of the Constitution by (1) Agha Abdul Karim Shorish alias Shorash Kashmiri, Editor "Weekly Chattan", Lahore, (2) Khawaja Sadiq Kashmiri, Publisher of the Weekly and (3) Chattan Publishers Ltd. (a private company incorporated under the Companies Act, 1913) calls in question four orders made by the Province of West Pakistan in the Home Department under rule 52 (1) and (2) of the Defence of Pakistan Rules (hereinafter called the Rules) in relation to the "Chattan" Weekly and the Chattan Printing Press where the said weekly was published.

2. The first order in the Series No. S. O. (Pub.)‑I‑23/67, dated the 1st April 1968 (Annexure R/1) addressed to petitioner No. 1, is the foundation for the alleged contravention of which the subsequent three impugned orders were passed. It reads:‑ "Whereas the Governor of West Pakistan is satisfied that the publication of news, views, comments, statements, reports or photographs promoting religious and sectarian controversy tend to seriously affect amity and harmony among various sects of the Muslim community and is, therefore, prejudicial to the maintenance of public order; And whereas for the purpose of securing the maintenance of public order, it is considered necessary to prevent the printing of such matter at the Chattan Printing Press and to subject to scrutiny the printing of any matter at the said Press which is likely to promote religious or sectarian contro versy and to tend to affect amity and harmony among the various sects of the Muslim community; Now, therefore, in exercise of the powers conferred on the Provincial Government by sub‑rule (1) of rule 52 of the Defence of Pakistan Rules, read with Government of Pakistan, Cabinet Secretariat (Cabinet Division) Order No. S.R.0.111 (R)/65, dated the 6th September 1965, the Governor of West Pakistan is pleased:‑41 (a) to prohibit you, Mr. Shorlsh Kashmiri, keeper of the Printing Press `Chattan Ptg.' from printing any matter casting reflection on the origin, prophecies, revelations or beliefs of any sect of Islam or which may create or excite feelings of enmity, ill‑will or hatred between different sects; and (b) to require you, the keeper of `Chattan Printing Press' to submit to the Director Press, Cell, Government of West Pakistan, Lahore/Director of Information (West Pakistan Government) of your Region for his scrutiny, any matter intended to be printed in the said `Chattan Printing Press' touching on the origin, prophecies, revelation or beliefs of any sect of Islam or on their comparative merits of status, by way of news, views, comments ,or in any other form whatsoever, before the sail matter is printed at `Chattan Printing Press'. This order shall remain in force for a period of three months from the date of its service on the said keeper of the `Chattan Printing Press." Thus the order firstly prohibited petitioner No. 1 for a period of three months from printing any matter of the specified kind and secondly required him to submit for the scrutiny of the specified officer, any matter of that kind intended to be printed by the Chattan Printing Press of which petitioner No. 1 was the keeper. Apparently, this order did not evoke immediate objection or protest by petitioner No.

1. However, the issue of Chattan published on 22nd April 1968 contained the following comment in column No. 3 at page 4, under the caption‑ The opening sentence obviously refers to a letter published in the daily, `Nawa‑i‑Waqat' of 17th April 1968, by one Iqbal Sohail. On the premises that the above comment constituted a violation of the prohibitory order dated 1st April 1968, the respondent issued Order No. 3/44‑H‑SPL.III/67(1) dated the 25th of April 1968 (Annexure R/2) purporting to be under sub‑rule (2) of rule 52 of the Rules "declaring to be forfeited to the Government of West Pakistan every copy of the issue of the Weekly . . . (Chattan), dated the 22nd of April 1968,". containing the aforesaid article. By another order of the same date and No. 3/44‑H‑SPL. III/67(2) (Annexure R/4) also purporting to be under rule 52(2), the respondent declared "to be forfeited to the Government the Chattan Printing Press, Lahore," where the said issue of the Weekly . . . . "Chattan" dated 22nd April 1968, containing the offending comment was printed and published. By yet another order of the same date and bearing No. 3/44‑H‑SPL.I1I/67(3) (Annexure R/4) also made under rule 52 (2), the respondent cancelled the declaration made and subscribed in respect of Weekly . . . . "Chattan" under section 7 of the Press and Publications Ordinance, 1960, hereinafter called the 1960‑Ordinance. By a separate order of the same date and No. 3/46‑H SPL.111/67(4) the respondent constituted under sub‑rule (4) of rule 52 of the Rules one‑man Tribunal to be presided over by Mr. Muhammad Ayub Khan, Special Judge (Anti‑Corruption), Lahore, who had been a Sessions Judge "for the adjudication of the forfeiture" of the aforesaid property, namely, the issue of Weekly "Chattan" dated 22nd April 1968 and Chattan Printing Press where it was published. It is conceded that the order Annexure R/4, by which the declaration made and subscribed in respect of the newspaper was cancelled, was not and indeed could not be made subject‑matter of reference for adjudication by the tribunal under rule 52 (4) of the Rules.

3. Hence this writ petition. The reliefs claimed are that the aforesaid four orders be declared to be "without lawful authority" and issue of "Chattan" dated 22‑4‑1958 and the Chattan Printing Press and the declaration made and subscribed by petitioner No. 1 in respect of Weekly "Chattan" be restored.

4. Mr. Saeed Akhtar, learned counsel for the petitioners, questioned the vires of the four impugned orders, on a number of grounds which broadly fall under two distinct categories: first, he attacked the vices of rule 52 itself as distinct from the four impugned orders and second, he attacked the four impugned orders even if rule 52 were found to be intra vices. Learned counsel, however, made it clear at the commencement of his argument that the petitioners do not question the constitutionality of the proclamation of Emergency by the President on the 6th of September 1965, under Article 30 of the Constitution, nor that of the Defence of Pakistan Ordinance, 1965 (hereinafter called the 1965‑Ordinance) under which the Rules are framed. The vires of sub‑rules (1) and (2) of rule 52 was questioned by the petitioners' learned counsel on a number of grounds and therefore we thought it fit to issue notice to the learned Attorney‑General to address us on the vices of the rule it having been framed by the Central Government.

5. Mr. Saeed Akhtar's attack on the vires of rule 52 was threefold. He argued in the first instance that the Proclamation of Emergency by the President on the 6th of September 1965, was issued because Pakistan was "in imminent danger of being threatened by war" a condition contemplated by paragraph (a) of clause (1) of Article 30 of the Constitution and made no reference to the condition set out in paragraph (b) ibid. Therefore, it was urged that any emergency legislation under clause (4) during the period the proclamation remained in force must be co- related with the purpose for which the emergency was declared. For the material purpose, Article 30 reads as follows :‑ "(1) If the President is satisfied that a grave emergency exists:‑ (a) in which Pakistan or any part of Pakistan, is (or is in imminent danger of being) threatened by war or external aggression; or (b) in which the security or economic life of Pakistan is threatened by internal disturbances beyond the power of a Provincial Government to control, the President may issue a Proclamation of Emergency. (4) If at any time when a Proclamation of Emergency is in force (whether or not the National Assembly stands dissolved or is in session at that time) the President is satisfied that immediate legislation is necessary to assist in meeting the emergency that gave rise to the issue of Proclamation, he may subject to this Article, make and promulgate such Ordinances as appear to him to be necessary to meet the emergency .." The argument was that the Proclamation of 6th September 1965, on its wording was exclusively relatable to sub‑clause (a) and did not concern itself with the maintenance of public order or internal security or the economic life of any part of Pakistan a matter falling under sub‑clause (b) above. Consequently, it. was urged, that the President having chosen to confine himself to sub‑clause (a) of Article 30(1) as the basis for the Proclamation of Emergency must be presumed to have confined the emergency only to meeting the imminent threat of war and, therefore, no legislation could be undertaken in pursuance of the Proclamation on any matter other than connected with the defence of Pakistan. A fortiori, any statute or for the matter of that, a rule framed thereunder, which is designed to preserve public security or public order or economic life of Pakistan as distinct from aiding the defence of country will be outside the scope of Proclamation of the 6th September 1968. To support this argument, reliance was placed upon a case from Australian jurisdiction reported as The King v. University of Sydney Ex parse Drummond ((1943) 67 C L R 95) wherein Regulation 16 of the National Security (Universities Commission) Regulations a war‑time measure‑purporting to make provision for the control of admission to universities was :truck down as ultra vices as not falling within the defence power of the Commonwealth. We will presently consider the distinguishing feature of this case.

7. Learned Advocate‑General, on the other hand, relied upon the recent judgment of the Supreme Court in Mir Abdul Baqi Baluch v. Government of Pakistan, etc. (Civil Appeal No. 49 of 1967) in which a similar argument as canvassed in this case was repelled by their Lordships. That was a case of preventive detention under rule 32 (1) (b) of the Rules framed under section 3 (2) (x) of the 1965‑Ordinance. The attack in the precedent case was on a wider basis and went to the root in that the vires of the section itself in so far as it provided for the frame of Rules for the detention as a preventive measure for the maintenance of public security or public safety or public order fell for scrutiny. As in this case the argument before their Lordships of the Supreme Court was that in so far as the Ordinance provided for measures to secure the main tenance of public security or public order, the matter fell within the provincial legislative field. Support was also sought from the wording of the preamble of the Proclamation which referred to Pakistan (being) in imminent danger of being threatened by war" as the raison d'etat for the Proclamation without any reference to "internal disturbance beyond the power of the Provincial Government". The argument was that the President having limited the scope of the emergency to meet the threat of war cannot provide by means of legislation for a different kind of emergency, namely, public peace and security. Their Lordships repelled the argument and observed that the language used in the Proclamation cannot have "the effect of curtailing the power granted to the President by the Con3titution", vide Article 30 (1). It was also observed that clause (4) of Article 30 was in the nature of an enabling provision and once the emergency bad been validly proclaimed for any one or more of the grounds given in sub‑clauses (a) and (b) it is emergency that has to be met in the manner provided in that clause. While it is true that the Proclamation stated that "a grave emergency exists in which Pakistan is in imminent danger of being threatened by war", yet it did not say that the Proclamation was issued only in exercise of powers conferred by sub‑clause (a) of clause (1) of Article

30. Therefore, the emergency was not confined only to meeting the imminent danger or being threatened by war, but it was of a wider connotation which comprised the grounds mentioned both in sub‑clauses (a) and (b) of clause (1) of Article

30. It was pointed out that the power of legislation derived under clause (4) set out above was not hedged by any condition as to the nature of legislation to be undertaken to meet the emergency. On this view of the matter, therefore, their Lordships held that the "power to legislate the Ordinance which accrued to the President thereby cannot be restricted to any particular portion of clause (1) of Article 30." Their Lordships went on to observe that in the very nature of things, no clear demarcation is possible of what is not necessary for meeting the emergency. Internal disorder or sabotage or any other prejudicial act threatening or disturbing the law and order situation within the country may well have a far‑teaching effect on the measures necessary for effectively meeting the external danger of war. Indeed, during an emergency because of the imminent threat of war, maintenance of public peace within the country is equally important for keeping up the morale of the people so necessary for the efficient prosecution of war.

8. Independent of the Proclamation of Emergency the question can be viewed in another prospective, that is to say on a comparative examination of Articles 131 to 134 of the Constitution which bear in the law‑making powers of the Centre and Provinces. In a recent case before the Supreme Court, The Province of East Pakistan v. Sirajul Huq Patwari (P L D 1966 S C 854) Mr. Justice Hamoodur Rahman observed at page 978 that the scheme underlying Articles 131 to 134, the Central Legislature has "exclusive power" with respect to the matters enumerated in the Third Schedule of the Constitution. In addition to this, the Central Legislature has power in the national interests to legislate even with respect to matters not enumerated in the Third Schedule if the security of Pakistan, including the economic and financial stability thereof, etc. so require. Again, the Central Legislature has power to legislate with respect to any matter not included in the `third Schedule if the Provincial Legislative Assembly passes a resolution to the effect that such a matter should be regulated in the province by an Act of the Central Legislature. As against this under Article 132 the Provincial Legislature has merely been given power to make laws for the Province or any part of it with respect any matter other than a matter enumerated in the Third Schedule, but what is important to bear in mind is that this power is not an "exclusive power", and it could not possibly be so by reason of the earlier provisions of clauses (2) and (3) of Article

131. And yet again, under Article 134, in the event of airy conflict between a provincial law and the central law, it is the latter which prevails and the former is to the extent of inconsistency rendered invalid. From the above examination of Articles 131 to 134, therefore it becomes clear that the provincial Legislature cannot lay any claim to "exclusive power" to legislate with regard to any matter which is not included in Third Schedule of the Constitution. His Lordship recorded his conclusion in the following words :‑ "It would perhaps be more correct to say that although the Provincial Legislature cannot; legislate with respect to any matter which is enumerated 'in the Third Schedule and, therefore, within the exclusive competence of the Central Legislature, the rest is in the nature of a concurrent field subject to the limitations specified in clauses (2) and (3) of Article 131 of the Constitution." This observation was made with reference to section 57 of the Electoral College Act, 1964‑a central statute‑and one of the questions canvassed before their Lordships was that the subject- matter of section 57 not being covered by any item in the Third Schedule to the Constitution fell within the provincial legislative field and therefore was beyond the competence of the Central Legislature. But on a comparative examination of Articles 131 to 134 of the Constitution section 57 of the Act was held to be valid piece of legislation.

9. For the foregoing reasons, the 1965‑Ordinance in so far as it contains provisions for the maintenance of public order, or public safety, or provides for the frame of Rules for attaining that objective is perfectly intra vires: So also the Rules relating to the same subject.

10. The second attack on the vires of rule 52 (1) and (2) of the Rules is founded on provisions of section 15 of the 1965 Ordinance which reads "Any authority or person acting in pursuance of this Ordinance shall interfere with the ordinary avocations of life and enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of Pakistan." The argument was that rule 52 (2), as worded, provides for maximum penalty only namely, the forfeiture of the property in respect of which there has been contravention of order made under sub‑rule (1) ibid. Rule 52 (1) and (2) is in the following terms: "(1) The Central Government may, for the purpose of ensuring the security, the public safety or the defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, by order addressed to a printer, publisher or editor, or to printers, publishers and editors generally:‑ (a) require that all matter, or any matter relating to 1 particular subject or class of subjects, shall, before being published in any document or class of documents, be submitted for scrutiny to an authority specified in the order; (b) prohibit or regulate the making or publishing of any document or class of documents, or of any matter relating to a particular subject or class of subjects, or the use of any press, as defined in the Press and Publications Ordinance, 1960. (2) If any person contravenes any order made under subrule (1) then, without prejudice to any other proceedings which may be taken against such persons, the Central Government may declare to be forfeited to it every copy of any document published or made in contravention of such order and any press, as defined in the Press and Publications Ordinance, 1960 used in the making of such document; and if the document so forfeited is a Newspaper the Central Government may also cancel the declaration made and subscribed in respect of such Newspaper under section 7 of the Ordinance. It was stressed that the requirement of section 15 was mandatory and, therefore, even if it were assumed that the offending com ment in the issue of "Chattan" on 22nd April 1968, contravened the order of the Provincial Government dated 1st April 1968, any lesser penalty in the nature of demanding security as provided under the West Pakistan Press and Publication Ordinance, 1963 should have had the necessary deterrent effect. According to the learned counsel, outright confiscation of the press and the cancellation of the declaration, to say the least, were oppressive, and derogatory to the spirit of section 15.

11. The learned Attorney‑General, who addressed us on the points on the other hand, argued that on its true construction, section 15 of the 1965‑Ordinance refers to executive orders when they tend to interfere with enjoyment or property or ordinary avocations of life and does not impose any limitation on the legislative or the rule‑making power. In the recent case Rezaul Malik v. Government of East Pakistan (P L D 1968 Dacca 382) one of the arguments pressed on behalf of the writ petitioner‑a detenu under rule 32 (1) (b) of the Rules‑was that he was detained for reasons connected with public safety and public order and, therefore, could have more appropriately been detained under East Pakistan Public Safety Ordinance, 1958, under which the period of detention was limited but was unlimited under rule 32 (1) (b) of the Rules. As in this case, in the precedent case also section 15 of the 1965‑Ordinance was pressed in service for the avoidance of the impugned order. It was held by majority that section 15 imposes restriction on the executive only in the matter of interference with ordinary avocation of life. It was also held in that case that the question of choice for the relevant purpose is within the 1955 Ordinance itself and not outside it. A similar argument based upon the provisions of section 15 was also rejected by their Lordships of the Supreme Court, in Malik Ghulam Jilani v. Government of West Pakistan (P L D 1967 S C 373). Even the heading of the section; "Ordinary avocations of life to be interfered with as little as possible" manifestly makes it directory is its requirement and it would be wrong to import mandatory intent.

12. The third and the last challenge posed by the learned counsel for the petitioners was that whatever be the state of affairs obtaining is September 1965 when rule 52 was actually framed, since that time and particularly after the Tashkent Declaration, complete normalcy has been restored in the country and, therefore, the rule has lapsed by efflux of time. In other words, the defence power of a state varies according to the exigencies of the defence at a given time, and it diminishes to vanishing point after the cessation of hostilities. In support of his argument, learned counsel relied upon the following observation in the recent publication "Emergency and Law" by Chatterjee and Parameswara Rao, 1966 Edition at page 58: "The defence power lies mostly dormant in times of peace, begins to expand rapidly as the country apprehends aggression or enters war, reaches its zenith at the height of hostilities and begins to diminish as active fighting recedes." For the above observation, the learned authors relied upon the dictum in the Australian case in Andrew v. Howell ((1941) 65 C L R 255) in which it was held inter alia that in Australia, as in the United States, the doctrine has been recognized that emergency does not increase granted powers or remove or diminish the restrictions imposed upon powers granted or reserved, but while does not create power, emergency may furnish the reasons for the exercise of the power". Learned counsel also relied upon somewhat similar observation by Latham, C. J. in Australian Textiles Proprietary Ltd. v. The Commonwealth ((1945) 71 C L R 161 at page 170). In that case, the vires of Regulation 4‑A of the National Security (Female Minimum Rates) Resultations‑‑an emergency legislation‑fell for‑determi nation, It provided in substance that the rate of the remune ration of females employed in occupations to be specified should be not less than 75 % of the corresponding minimum male rate: The Regulations were made on 30th August 1945, that is to say, after Japan had agreed to surrender, but before the actual surrender. After the surrender by the Japanese forces, the Regulations were challenged on the grounds that they were invalid ab initio and alternatively they had "no present or future validity or effect or operation" because of cessation of hostilities. The object of the Regulations according to the preamble was that pending the re‑establishment in civil life of members of the Defence Force and for the purpose of assisting that re‑establishment, that the carrying on of certain industries in which females are employed should be facilitated and that disparities in the minimum rates of remuneration for females in respect of various classes of employment should be reduced. The principal argument against the vires of the Regulations was that it was in reality a piece of social legislation relating to the employment of women and has no relation to any war purpose. It was further contended that in any event there is no basis for its continuance since hostilities had ceased. In repelling the above argument, the High Court by majority of 5 to 1 held that the Regulations were valid and effectual as an exercise of the power conferred by section 5 of the National Security Act, notwithstanding the cessation of hostilities. Latham, C. J., who wrote the leading judgment observed that if legislation falls within a power conferred upon the Commonwealth Parliament the motives of the legislators in exercising the power are not a matter for consideration by the Court as affecting the validity of the legislation. Then followed the following observation upon which the petitioner's learned counsel particularly relied:‑ "I add, however, that a stage might be reached when it would be beyond reasons to allege that the continuance of a particular war control, not within Commonwealth powers in time of peace was necessary for defence purposes. It would then be the duty of the Court to bold that the legislation was invalid or had ceased to be operative." However, the observations are wholly obiter dicta. At page 51 of the treatise Emergency and Law from which the above observation was cited, the peculiar features of the Australian Constitution are noticed. The most significant difference between the Australian Constitution and our Constitution, which is material for the purposes of this case is, that the Constitution of that country does not contain any express emergency provision. That country was able to face war emergency during World War II by virtue of normal legislative powers of the Federal Government which include the powers to enact laws with respect to naval and military defence. Since the Constitution of that country is free from the "fetters" of fundamental rights, it placed the Common wealth Parliament on a par with the British Parliament at least in the federal legislative field in which it enjoys supreme law making powers. Since Australia is a federal functioning under a written Constitution, the limitations on the powers of the Commonwealth Parliament are inherent. It was precisely for this reason that in the case of University of Sydney noticed earlier the Regulation was struck off because it was in conflict with the University and University Colleges Act, 1900 1937 (N. S. W.) (No. 52 of 1900‑No. 35 of 1937), which inter alia creat ed a right in favour of a student to enter the university subject to his satisfying certain conditions. The vires of Regulation 16 of the National Security (Universities Commission) Regulations was also questioned, in that it trascended the power conferred by the National Security Act. In the instant case, however, the ultimate source to rule 52 is the Proclamation of Emergency which, as pointed out earlier, was not questioned and which indeed could not possibly be questioned in view of the constitutional provision of Article

30. Again, there are marked differences between the Constitution of Commonwealth of Australia and our Constitution and, therefore, the decisions from the Australian jurisdiction can hardly be even of persuasive value, unless the provision of law upon which they proceeded are pari materia without laws. Again, there are no provision in the Constitution of that country parallel to Articles 131 to 134 of our Constitution which give overriding effect to a central statute in the event of any inconsistency with a provincial statute.

13. The matter, however, as rightly pointed out by the learned Advocate‑General, is clinched by the dictum of their Lordships of the Supreme Court in the case of Mir Abdul Baqi Baluch to which a reference has already been made. In that case also, one of the arguments canvassed to question the constitutionality of the 1965 Ordinance was that with the cessation of hostilities followed by the Tashkent Declaration, the President was bound to, revoke the Proclamation, and he has not done so, the High Court should have declared the Proclamation as revoked. In repelling this contention, their Lordships observed:‑‑ "This argument is wholly misconceived for it is the President who has to be satisfied that the grounds on which the issue of the Proclamation have ceased to exist. It is not for the Courts to substitute their satisfaction for the satisfaction of the President. In any event, it cannot be said that merely because the hostilities have ceased, the emergency is also at an end. This is purely a political question outside the competence of the Courts to decide . . . In such matters, the Courts speak in the same voice as the Chief Executive of the State, for, these are not questions which are amenable to judicial determination. No Court can give A declaration that a state of war has ceased to exist when the Chief Executive does not satisfy."

14. Learned Attorney‑General who also addressed us on the point mainly rested his argument on the provision of clause (7) of Article 30 of the Constitution, which expressly makes the life of an Ordinance made and promulgated under clause (4) ibid co‑terminus of Proclamation of Emergency. This view was affirmed by the Supreme Court also in the case oil Malik Ghulam Jilani.

15. In view of the above precedents of high authority for Courts in this country, it is otiose to contend that rule 52 has automatically lapsed with the Tashkent Declaration and the normal conditions obtaining in the country thereafter.

16. At one stage of his argument, learned counsel for the petitioners also urged that rule 52 (1) and (2) being punitive in character is in excess of rule‑making power of the Central Government. Under section 3 of the 1965 Ordinance. But when referred to the provision of clause (iii) of subsection (3) of section 3 of the 1965 Ordinance, which specifically provide for the frame of rules regarding forfeiture, etc. of any property in respect of any contravention, attempt or abetment of any rule or an order made thereunder has been committed, learned counsel did not press his argument. This exhausts the arguments on the vices of rule 52 (1) and (2).

17. Mr. Saeed Akhtar's attack against the vires of the four impugned orders Annexs R/1 to R/4, (as distinct from vires of rule 51(1) and (2), under which the impugned orders were made) was based on the following contentions: (i) That the order dated 1‑4‑1968, Annex R/1 was issued in the wake of month of Muharram with a view to preserve amity between Shias and Sunnis only and did not concern the relationship of Ahmadis and non‑Ahmadis. (ii) That there are‑fundamental doctrinal differences between the Ahmadis and the rest of Muslim community and as such the former cannot be accepted as sect of Islam and, therefore, comment in the Weekly "Chattan" of 22nd April 1968, did not contravene the order Annex R/1. (iii) That the impugned order with the possible exception of the order dated 1st April 1968, Annex R/l, are punitive and having been made without any prior notice to the petitioners are vitiated on the principle of audi alteram partem. (iv) That the order dated 15‑4‑68, Annex R/4, declaring the Chattan Printing Press forfeited to the Provincial Government was without any notice to the petitioner No. 3, which is a body corporate under the Companies Act, and owner of the press, and which is not a party before the tribunal appointed under sub‑rule (4) of rule 52 either. (v) That the impugned orders are violative of Fundamental Right No. 10 in Chapter I of Part II of the Constitution which guarantees to every citizen the liberty to profess and propagate his religion, this right continues in operation, Proclamation of Emergency, notwithstanding. (vi) That at any rate, the news‑item and the comment, on the basis of which the three impugned orders were made was innocuous and did not warrant the penalty imposed by means of orders Annexs. R/3, R/8 and R/4. (vii) that the impugned orders were mala fide.

18. Before entering upon an examination of the above grounds, in so far as they fall for our examination it would be appropriate at this stage to dispose of, what may be described as preliminary objection, raised by the learned Advocate‑General. He strenuously urged that the constitutional jurisdiction vesting in a High Court under Article 98 of the Constitution can be invoked only "if it is satisfied that no other adequate remedy is provided by law". This is an overriding condition laid down in the beginning of clause (2) of Article 98 for the exercise of the extraordinary jurisdiction by the High Court and is not a mere rule of practice. It was argued that in the instant case a special tribunal under rule 52 (4) has already been set up by means of order !Annex R/6, which has already taken cognizance of the matter to adjudicate upon all matters including the propriety of the orders declaring confiscation of the "Chattan" dated 22‑4‑68 and the press. Accordingly, it was urged that the writ petition does not lie and, therefore, be dismissed as a whole and the petitioners be left to pursue their remedy before the special tribunal.

19. It is not disputed that Article 98 provides for and exceptional and extraordinary relief to be invoked only where ordinary legal process cannot afford adequate and prompt relief Therefore, it would be wrong in principle to entertain petitions for writ, save in very exceptional circumstances, when law provides for remedy by another tribunal. It was held by the Supreme Court in the case of Tariq Transport Co., Lahore v. Sargopha Bhera Bus Service, Sargodha and others (P L D 1958 S C (Pak.) 437) that any indulgence to the contrary by the High Court is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an underserved reflection on their competency and honesty and thus defeat the legislative intent. These principles are unexceptional and, therefore, with the setting up of the special tribunal for the adjudication of forfeiture, the learned Advocate General canvassed for total rejection of the petition leaving the petitioners to pursue their remedy before the tribunal.

20. Learned counsel for the petitioners, on the other hand, argued that the tribunal constituted under rule 52 (4) vide Annex R/6 has only limited jurisdiction confined to adjudication of confiscation only. It was also urged by the petitioner's learned counsel that question concerning the cancellation of declaration subscribed by petitioner No. 1 under section 7 of the 1960 Ordinance has not been referred to the tribunal for adjudication and, therefore, proceedings before the tribunal do not afford "adequate remedy" within the meaning of Article 98(2) of the Constitution.

21. To get over this obvious difficulty, the learned Advocate‑General argued that the order Annex R/4 cancelling the declaration is subsidiary or incidental to the forfeiture of "Chattan" dated 22‑4‑1968 and Chattan Printing Press so that if the orders concerning forfeiture of the press and the issue of "Chattan" dated 22‑4‑1968 are set aside, the declaration made and subscribed by petitioner No. 1 shall stand automatically restored. This is rather a bold proposition for which we find no basis. If it were true that order Annex R/4, cancelling the declaration is subsidiary or incidental to orders of forfeiture, then there was hardly any necessity to make a separate order with regard thereto. It is also important to note in this behalf, that sub rule (2) of rule 52, as originally worded, only provided for confiscation of the document published in contravention of the order made under sub‑rule (1) ibid and the press used in making such document. It was by means of a subsequent amendment by Notification No. S.R.O. 58(R)/66, dated the 9th of May 1966, that the following provision as inserted to confer additional power for the cancellation of tire declaration, namely,‑‑‑‑ "and if the document so forfeited is a Newspaper the, Central Government may also cancel the declaration made and subs cribed in respect of such Newspaper under section ? of that Ordinance." Needless to say, that if the matter relating to the cancella tion of the declaration made in respect of newspaper was subsidiary or auxiliary to the forfeiture of the newspaper and the press where it was printed, then there was no need to insert the above amendment in sub-rule (2). The amendment was made to supply what was an obvious omission in the sub‑rule as originally framed. However, no corresponding provision was made in rule 52 (4) ,which eves inserted later, to enable the tribunal to adjudicate before the cancellation of the declaration.

22. Having given our anxious consideration to what appears to be a poignant situation arising in the case, we are of the view that the special tribunal appointed, vide order date. 25th April 1968, Annex R/6, has validly seizen of the matter as respects the adjudication of "" issue of "Chattan" dated 22‑4‑1368 (Annex R/2) and the Chattan Printing Press (Annex R/3). We have already held rule 52 to be infra vines and this meets the petitioner's objection that the tribunal being creature of the rule cannot determined its vires. This incidentally also establishes the validity of the appointment of the tribunal for the purpose envisaged under rule 52 (4), (5) and (6). To encroach upon the jurisdiction of that statutory tribunal so far as the adjudication of forfeiture is concerned, would amourrt'1 to usurpation of the jurisdiction of tire tribunal by this Court while it is already validity seized of the matter, and can grant appropriate redress.

23. Learned counsel for the petitioners raised yet another objection against the continuance of proceedings before; the tribunal. It was urged that the petitioners have asserted breach of Fundamental Right No. 10 and further the impugned orders having been made without prior notice, are void ab initio and, therefore, writ in the nature of certiorari cannot be refused on the ground that an alternative remedy is available. Tariq Transport Co.'s case referred to earlier and Himmat Lal v. State of M. P. (A I R 1964 S C 403) are cited in support of the above proposition.

24. So far Fundamental Rights 8 and 9 regarding freedom of trade, business or profession and freedom of speech are concerned, they are under suspension as from the Proclamation of Emergency. Freedom to practice and profess religion (F. R. 10) is in force, but its exercise is expressly made, "subject to law public order and morality". Therefore, it is not absolute the expression subject to law, implies a recognition of similar freedom of every other citizen of Pakistan and also subject to the requirements of maintenance of law and order anal morality. The whole burden of argument of petitioners' learned counsel was that Ahmadis are not a sect of Islam and the petitioners' right to say so is guaranteed by the Constitution. But learned counsel overlooks the fact that Ahmadis as citizens of Pakistan are also guaranteed by the Constitution the same freedom to profess and proclaim that they are within the fold of Islam. How can the petitioners deny to others what they claim for themselves is beyond our comprehension? Certainly not by terrorising them. The question at the root is how far the petitioners and others like‑minded can in law prevent the Ahmadis from professing that notwithstanding any doctrinal differences with the other sects of Islam they are as good followers of Islam as anybody else who calls himself a Muslim. To a question, whether any suit for a declaration that Ahmadis are not Muslims or of permanent injunction against Ahmadis tie restrain them from calling themselves Muslims would be competent, the petitioners' learned counsel frankly replied in the negative. This brings in bold relief, the absence of any legal right in the petitioners to have this abstract question determined by any right legal process, unless it is somehow linked with any right to property or right to an office, in which case a civil suit may be competent. Well‑known instances of the latter kind relate to the offices of sajjada nashin or mutwalli of a Khanqah and such other institutions where religious beliefs are sometime prerequisite for holding such offices. The most apt instance for our purpose, however, is Article 10 of the Constitution according to which, among other qualifications a candidate for Presidential election must be a "Muslim,". Under section 8 of the Presidential Election Act, 1964, the Returning Officer is empowered to hold a summary enquiry to satisfy himself that a candidate for election is qualified under the Constitution to be elected as the President. This includes an enquiry to his being a Muslim. If the nomination paper of a candidate has been rejected which may be, inter alia on the ground that he is not a Muslim then appeal lies to the Election Commission "and any order passed by the Commission on such appeal shall be final" vide subsection (5) ibid. Article 171 of the Constitution further provides that disputes relating to election shall be decided only in the manner provided therein or by a tribunal established for that purpose and not otherwise. Clause (2) of the Article provides: "When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner before or by any Court or authority whatsoever." Thus it will be seen, that for the purpose of Presidential election also a special jurisdiction teas been created to determine finally whether a candidate for election is a Muslim or not and the jurisdiction of Civil Courts is thus barred.

25. We are obliged to consider this aspect of the matter, because the petitioners' learned counsel in the course of his argument referred to certain parts of Munir's Enquiry Report on Punjab Disturbances of 1953 high‑lighting the doctrinal differences between the Ahmadis and other sects among Muslims and to certain incidents where certain persons professing to be Ahmadis were dubbed as "Murtads" and in some cases killed. Two judgments, one of a subordinate Court in the former Punjab and the other from a District Court in what was once Bahawalpur State, wherein it was held that Ahmadis are not a sect of Islam were also placed within record. We wonder how these instances are relevant. The judgments are of subordinate Courts and they are not relevant even under section 13 of the Evidence Act, 1872. As to instances of Ahmadis being dubbed as "Murtads", and done to death, all that we need to say is that these are sad instances of religious persecution against which human conscience must revolt, if any decency is left in human affairs. How far these instances are opposed to the true Islamic precepts and injunctions would be manifest from Chapter 2:256 of the Holy Quran which guarantees freedom of conscience in clear ‑mandatory terms which are translated thus:‑ "Let there be no compulsion In religion: . . . . ." (A. Yusuf Ali) Similarly freedom to all religions is guaranteed in verse 62 ibid thus:‑ "Those who believe (in the Qur'an), And those who follow the Jewish (scriptures), And the Christians and the Sabians, And who believe in God And the Last Day, And work righteousness, Shall have their reward With their Lord: on them Shall be no fear, nor shall they grieve. (A. Yusuf Ali) There is also a positive injunction in Chapter 3:79 prohibiting man‑even though a prophet‑from imposing his will upon others in these terms :‑‑ "It is not possible That a man, to whom is given the Book, And wisdom, And the prophetic office, Should say to people: Be ye worshippers Rather than God's': On the contrary (He would say); `Be ye worshippers Of Him Who is truly The Cherisher of all: For ye have taught The Book and ye Have studied it earnestly.' " (A. Yusuf Ali) Freedom of thought and conscience could not have been guaranteed in clearer terms. These references from the Holy Qura'an, demonstrate the untenable stand taken by the petitioners to invoke Fundamental Right No. 10 as the basis of their writ petition.

26. The petitioners' learned counsel next contended that the four impugned orders are punitive having been made without prior notice to the petitioners and are therefore, void ab initio. In our opinion, the matter stands concluded by the Supreme Court judgment in the case of Abul A'la Maudoodi v. Government of West Pakistan (P L D 1964 S C 673). In that case, the Provincial Government without any previous notice declared the Jamaat‑i. Islami to be unlawful association under the Criminal Law Amendment Act, 1908 and also ordered seizure of all assets and property belonging to that association. One of the points canvassed forcefully before their Lordships was that the orders made by Provincial Government in the absence of previous notice were void ab initio being in breach of the rule audi alteram partem which is deeply embedded in judicial system of every civilized country. This proposition was not accepted by their Lordships in toto and it was held in that case that in an emergency it might be necessary for the authorities to take immediate action and in such cases prior hearing may not be feasible. It was also observed that in such situation it would be sufficient if opportunity is afforded therefor subsequently. In reaching that conclusion, reference was made to the provisions of section 144, Cr. P. C. as affording an excellent example where the executive authority owing to the exigencies of the situation have to act immediately to take certain preventive measures ex parte. Similarly provisions of sections 127, 128, 130 and 131 of the Code, relating to the dispersal, etc. of the unlawful assemblies were also referred to. Section 99‑A is also another example whereby the Provincial Government can declare certain publications of the nature specified therein to be forfeited without any previous notice, subject to the result of an application to be made to the High Court subsequently by a person aggrieved under section 99‑B. Accordingly, it was held that the rule enshrined in the maximum audi alteram partem is not inflexible,, with fixed content unrelated to time, place and circumstances," but that it was essentially a matter of procedure and its application must, therefore, depend on the particular facts and circumstances of the case. In the precedent case, Kaikaus, J. held that in such cases ex parte order may be regarded only "as an interim or a provisional order which will remain in force till a final order is passed after hearing the party concerned."

27. In the instant case, the four impugned orders broadly fall under two categories. The first order dated 1st April 1968, is wholly preventive and, therefore, is distinguishable from the other three. It merely prohibited petitioner No. 1 from printing and publishing comments of the specified kind and to submit any such matter for the scrutiny of a named officer if petitioner intended to print or publish any such matter in "Chattan". This order was never objected to by the petitioner until he had printed the offending comment in the issue of "Chattan" dated 22nd April 1968. The subsequent three orders dated 25th April 1968, namely Annexs. R/2 to R/4, on the other hand, were made because of the publication of the offending matter in purported violation of the first order and, therefore, they can appropriately be described as punitive and not merely preventive. However, what is important to bear in mind is that the Provincial Government having declared the issue of "Chattan" dated 22nd April 1968, and the Chattan Printing Press forfeited simul taneously proceeded to constitute the special tribunal under sub‑rule (4) of rule

52. The sub‑rule i.e. mandatory and leaves no choice to the Provincial Government. Thus in the words of Kaikaus, J. in the case of Jama'at‑i‑Islami, referred to above, the declarations as to confiscation, though ex parte, are in the nature of interim or provisional orders which will remain in force till a final adjudication is made by the tribunal. This, in our opinion, amply satisfies the requirement of the rule audi M alteram partem in this case. The same view was taken in a recent case before the Dacca High Court in Tafazzal Hussain v. Province of East Pakistan (1968 P Cr. L J 734). In that case, it was held that ex post facto hearing by the tribunal set up under rule 52 (4) constitutes sufficient compliance with the rule of natural justice.

28. However, the order in Annex. R/4, whereby the decla ration made and subscribed by petitioner No. 1 under section 7 of 1960‑Ordinance was cancelled not being a subject‑matter of reference to the tribunal will not be on a par with the two orders of confiscation in Annexs. R/2 and R/3 and, therefore, will be hit by the rule laid down by their Lordships of the Supreme Court in Faridsons Ltd. v. Government of Pakistan (P L D 1961 S C 537), Manzur‑ul‑Haq v. Controlling Authority (P L D 1963 S C 652) and Province of East N Pakistan v. Nur Ahmad (P L D 1961 S C 451). On this view of the matter, therefore, we hold that the order in Annex R/4, purporting to cancel the declaration made and subscribed by petitioner No. 1 under section 7 of the 1960 Ordinance, being in violation of the rule in audi alteram partem, is void ab initio and is, therefore, set aside as being without lawful authority and of no legal effect.

29. There yet remains another point to be disposed of. It is common ground between the parties that the Chattan Printing Press is owned by a private company, the Chattan Printing Press Ltd., of which petitioner No. 1 is the Chairman, besides being the Editor and Technical Advisor of the weekly. It appears that company as such is not a party to the proceedings before the tribunal and no notice has otherwise been issued to the company as such, apart from the notice to the petitioner No. 1 as the keeper of the press who also made and subscribed to the declaration of the Weekly "Chattan". Learned counsel for the petitioners contended that since the press has been declared to be forfeited without any notice to the company and the company is also not a party to the proceedings before the tribunal, the order of confiscation of the press is wholly bad fn law. We consider that the question is not viewed by the learned counsel in proper perspective. From the order Annex R/1, set out in the beginning of this judgment, it is clear that that prohibition was not confined to publishing a matter of the specified kind but also extended to printing it at the Chattan Printing Press. It is not disputed that the Chattan Printing Press was used in printing the offending matter and, therefore, likewise became liable to confiscation regardless of its ownership. Under section 3 (3) (iii), the incidence of confiscation falls on the property in specie which has been used in contravening the prohibitory order, regardless of its ownership. A parallel example is to be found in section 168 of the Sea Customs Act, 1878, which provides for the confiscation of means of transport used in conveying contraband goods. Therefore on a reference being made to the tribunal under rule 52 (4), it is required to give opportunity to every "person affected . . . . of being heard" (sub‑rule 5 ibid). The company is certainly such person and will have a right of hearing. If the company chooses to stay away, it cannot make a grievance of it in this Court. Therefore, respondent No. 3 has not been prejudiced if initially it has not been cited as a party before the tribunal.

30. For the foregoing reasons, the Provincial Government's order dated 25‑4‑1968 (Annex R/4) purporting to cancel the dec laration made and subscribed by petition No. I concerning the Weekly "Chattan" under section 7 of the 1960‑Ordinance is hereby set aside as being without lawful authority and of no legal effect and to that extent the writ petition succeeds. The writ petition, however, fails as respect the other three impugned orders, namely, R/l, R/2 and R/3, regarding which the petitioners including petitioner No. 3 are left to seek redress from the tribunal set up under rule 52 (4), vide R/6. It would be entirely for the tribunal to determine whether the comment appearing in the Weekly Chattan of 22nd April 1968, has in any manner contravened the prohibitory order dated 1st April 1968, (Annex R/1) and in so doing the tribunal will be at liberty to consider any plea in defence or circumstance in mitigation urged by the petitioners including petitioner No. 3 except as regards matters specifically decided herein, namely:‑ (i) the vires of rule 52, (ii) the petitioners' plea based on Fundamental Right in paragraph 10 in Part I of Chapter II of the Constitution. In the circumstances of the case, the parties are left to bear their own costs. K. B. A. Petition partly accepted.