P L D 1956 Lahore 181 (PLP)

MUHAMMAD YAQUB ALI, J:‑ Irshad Ahmad, in charge publicity Department of the Jama'at‑i‑Islami (Nazim Sho'ba ‑I-Nashr‑o‑Isha'at), has been convicted and sentenced to undergo six months' rigorous imprisonment under section 18 of the Press (Emergency Powers) Act, for publishing a news‑sheet without obtaining sanction of the District Magis trate under section 15 of that Act. An Appeal taken to the Sessions Judge, Lahore, against the conviction and sentence having remained unsuccessful, the petitioner has come up in revision before this Court. The impugned publication in this case consists of Urdu and English version of a statement issued by the executive committee (Majlis‑i‑Shoora) of the Central jama'at‑i‑Islami on 13th of June 1954 on the detention of its head Maulana Abul A'la Maudoodi and the policy of the Central Govern ment in this matter. The English version is entitled "Rule of Law or Political Revenge? Some facts about Maulana Maudoodi's conviction and other martial law prisoners and governmental action against jama'at‑i‑Islami." The Urdu version is entitled "The death sentence passed on Maulana Maudoodi. Statement of the executive committee of Jama'at‑i‑Islami on the detention of martial law prisoners and the Govern mental action against Jama'at‑i‑Islami". The objection taken to this publication was two‑fold, (i) that it contained public news and comment on public news, and (ii) some of the statements contained in it attracted the provisions of clauses (b) and (d) of subsection (1) of section 4 of the Press (Emergency Powers) Act. Before I deal with the questions which fall for decision in this case it will be advantageous to mention at this stage some facts which are matters of common knowledge pertaining to the arrest, trial and conviction of Maulana Abul A'la Maudoodi by a military tribunal during the martial law days and the action taken by the military authorities against Jama'at‑i‑Islami in early 1953. As a result of serious disturbances and acts of violence which resulted from the anti‑Ahmadiyya agitation, martial law was imposed in the city of Lahore on 6th of March 1953. A day or two earlier, Maulana Abul A'la Maudoodi had issued a pamplet under the caption " Masla‑i‑Qadiani " and on the basis of it the military authorities put him (Maulana Abul A'la Maudoodi) under arrest towards the end of March 1953. A daily (Tasneem) and a weekly (Kausar) newspapers pub lished by the Jama'at were banned, a part of their records was removed from their central office situated in Ichhra, a suburb of Lahore, and a part of its funds was confiscated. On the basis of the publication of Masla‑i‑Qadiani, Maulana Abul A'la Maudoodi was tried under sections 124‑A and 153‑A P. P. C. and sentenced to death by a military tribunal on 11th of May 1953. Later on this death sentence was commuted by the higher military authorities to a life sentence. A large number of other persons including some members of the Jama'at‑i‑Islami and some members of the Ahmadi sect were also arrested and convicted by the military tribunals either in connection with the disturbances or for defiance of certain regulations issued by the martial law authorities. Martial law was lifted some time in June 1953 and it was followed by the passing of an Ordinance and later on an Act validating the sentences passed by the military tribunals during the martial law days. After law and order was restored and the martial law regime had receded in the background, an intense agitation was organized all over the. country both in the press and from platform for the release of martial law convicts, including Maulana Abul A'la Maudoodi. Not only jama'at‑i‑Islami but various other political parties, including the ruling party of the country (All Pakistan Muslim League), lent their support to this agitation so much so that at a meeting of the working committee of the All Pakistan Muslim League held under the president ship of the then Prime Minister Mr. Muhammad Ali, a resolution was passed canvassing the Central Govern ment to release all the martial law convicts. Malik Feroz Khan Noon, who held the office of the Chief Minister of the Punjab at that time, also participated in this meeting as a member of the executive committee. It is interesting to notice in this context that it was on account of the aforementioned disturbances that Mr. Muhammad Ali was made the head of the Central Government after the depo sition of Khawaja Nazim‑ud‑Din's Ministry, and Malik Feroz Khan Noon became the Chief Minister of the Punjab on the resignation of Mian Mumtaz Muhammad Khan Daultana. It was probably in response to this widespread agitation that the Government from time to time released a number of martial law convicts who were not charged with acts of violence, while Maulana Abul A'la Maudoodi and some others continued to remain in imprisonment. So far as the Ahmadi convicts were concerned, they were released soon after their conviction on the orders of the Central Government for reasons with which it is not necessary to deal in this case. In April, 1954, the Central Government issued a statement that the martial law con victs numbering 115, who were not charged with acts of violence, will be released forthwith, while the cases of 22 convicts will be submitted to a Judge of the Federal Court for review. The convicts were required to submit their petitions of appeal to the Central Government for being forwarded along with the relevant records to the Judge of the Federal Court. This was followed by release of a large number of the remaining martial law convicts also, with the exception of a few, such as Maulana Abul A'la Maudoodi, Sayyad Ali Naqi and Abdus Sattar Khan Niazi. This strengthened the hands of Jama'at‑i‑Islami to demand the release of Maulana Abul A'la Maudoodi and led to the issue of the statement by its executive committee, dated 13th of June 1954, which is the subject‑matter of the impugned publication in this case. This statement was published verbatim in the Daily Tasneem (party organ of Jama'at‑i‑Islami) on the following date of its release, and later on editorially commented upon in the same paper dated 16th June, 1954. A copy of Tasneem, dated 8th of July 1954 is on the file of this case which also bears reference to this statement. Most of the facts stated above are contained in the publication in question, while a few others were stated from the bar by Chaudhri Nazir Ahmad Khan, learned counsel for the petitioner. A news‑sheet is defined in subsection (6), section 2 of the Press (Emergency Powers) Act as a publication other than a newspaper containing public news or comments on public news or any matter described in subsection (1) of section 4, of that Act. Clauses (a), (b) and, (d), sub section (1), of section 4, on which the learned Assistant Advocate‑General who appeared for the Crown before me relied, read as follows :‑ (a) incite to or encourage, or tend to incite to or to encourage, the commission of any offence of murder or any cognizable offence involving violence, or (b) directly or indirectly express approval or admiration of any such offence, or of any person, real or fictitious, who has committed or is alleged or represented to have committed any such offence or which tend, directly or indirectly, .. ...... (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 Federa tion 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 the said Government, or ". Keeping in view the above provisions of law, I will now turn to the impugned publication to determine whether it contains public news, or a comment on public news, or such matter as is made culpable under subsection (1) of sec tion 4 of the Act. It may be noticed that the English version of the publication in question is a liberal translation of the Urdu version and it will not, therefore, be necessary to refer separately to the text of both of them. As noticed above, the publications in question consist of the statement issued by the executive committee of the Jama'at‑i‑Islami on 13th of June 1954. In the words of its preamble this statement was issued to present in a con solidated form facts and particulars relating to the arrest, detention, trial and conviction of Maulana Abul A'la Maudoodi as well as other martial law convicts and there policy of the Central Government in this matter, in order to create a country‑wide agitation for the release of these convicts. Apart from the facts mentioned above, the state ment contains criticism of certain measures adopted by the Central Government towards martial law convicts and Jama'at‑i‑Islami, such as validation of convictions made by the military tribunals, deprivation of the convicts of their right of appeal to the highest Court of law, invidious dis tinction in the case of Ahmadi and non‑Ahmadi convicts and the undesirability of using the high office of a judge of the Federal Court to tender advice to the executive pertaining to judicial matters. The main inference drawn from the facts and reasons contained in this statement is that the ruling party is acting 'out of political motives in keeping Maulana Abul A'la Maudoodi in detention with a view to crush the Jama'at‑i‑Islami, while a large number of other‑ similar convicts had already been released. As noticed above, Maulana Abul A'la Maudoodi was convicted by a military tribunal as far back as in May, 1953, and there is no denying the fact that as soon as he and others were condemned to death or other forms of sentences, the news about these convictions were immediately splashed in almost all the daily newspapers of the country. There fore most of the facts mentioned in this statement had already become public property. The latest incident mentioned in it, namely, the resolution passed by the executive com mittee of the All Pakistan Muslim League and a statement issued by the spokesman of the Central Government re lating to the release of martial law convicts, had taken place in April, 1954 whereas the publication in question was alleged to have been published on or about 15th of July 1954. I may also mention here that none of the facts mentioned in it was controverted either at the trial or before me as incorrect on behalf of the Crown, except the statement that on the arrest of Maulana Abul A'la Maudoodi a storm of protest was raised throughout the Islamic world and it compelled the Government to commute his death sentence to a life sentence. That appears to be an exaggera tion, although it is possible that some comments were made here and there in some of the Islamic countries relating to Maulana Abul A'la Maudoodi's conviction. But this may be overlooked a$ a poetic licence, for most of, the people in this country know that public statements whether issued from the press or platform often contain such exaggerations. The question, therefore, arises whether the reproduction and of these facts, which were already widely known to the general public, in the form of a pamphlet fell within the definition of a public news or not. The words "public news" is not defined in the Act, but according to its dictionary meaning the necessary ingredient of a news is the newness or freshness of it, and there can be no comment on a public news unless the subject‑matter of comment falls within the definition of a news. The word "newspaper" is defined in Wharton's Law Lexicon (Fourteenth Edition, page 688) as "containing intelligence of passing events". The word "news" is defined in Webster as "something strange or newly happened; a report of a recent event; information about something before unknown ; and fresh tidings". Similarly, in Oxford (Volume VII, page 109, 1933 Edition) the word "news" is defined as "new thing, novelty, tidings, report of recent happening or occurrence, brought or coming to one as a new information". Keeping in view the dictionary meaning of the word "news", I fail to see how the first part of the definition of a news‑sheet contained in subsection (6) of section 2 of the Press (Emergency Powers) Act applies to the facts of this case. The learned Assistant Advocate‑General, however, contended that if the matter contained in an impugned publication was of a topical interest, it fell within the purview of a news‑sheet, although the incident or event, the subject matter of the news, may have happened at some distance of time. In support of this contention he relied upon two Division Bench authorities of the Calcutta High Court, Jitendra Lai v. Emperor (A I 12 1933 Cal, 458) and Shamsul Huda v. Emperor (A I R 1938 Cal. 222). In Jitendra Lai's case Panckridge J., after finding that the photographs found from the custody of the accused person in that case fell within the definition of news, observed that it did not dispose of the matter since he was not disposed to hold that all information is public news. The learned judge then referred to the dictionary meaning of the word "news" as given in Oxford Dictionary and came to the conclusion that having regard to the purpose and general scheme of the Act that information is public news which concerns a matter of public and topical interest as contrasted with purely historical interest, and held the photographs in question to be public news on the ground that although the information conveyed by them was discovered more than two years after the incident relating to it the Chittagong armoury raid) had taken place the legal proceedings out of it had not terminated and the emergency measures rendered necessary in the district of Chittagong were still in operation. There is no further discussion in the judgment as to what are matters of historical interest and what would be a matter of public and topical interest as contrasted with, purely historical interest. In any case, the meaning of the word "news" as defined in Oxford Dictionary and reproduced by the learned Judge in the earlier part of the judgment was not adhered to in coming to the conclusion that if some event had happened many years ago but it continues to engage public interest or attention, the repro duction of it would amount to a news. In Shamsul Huda's case, Justice Biswas observed that the pamphlet in question contained matters which certainly may be described as news in the sense of information on definite events of topical interest. The learned judge proceeded to observe that there were, no doubt, references to matters of historical interest (in the pamphlet in question) but that was not all. In one passage, for instance, it was stated that an agrarian revolution was imminent. This was considered by the learned Judge as imparting news. A reference was then made to the following paragraph and, without any discussion or giving any reasons, it was observed that this came within the definition of news:‑ "The invincible desire of the nation for the attaining of independence did not weaken . . . The people, disabled and dying through famine, flood and starvation are again waking up. The invincible desire for the attainment of independence is making the whole country restive, even today thousands of young men and women without trial are passing the moments that and not in their control behind the Prison walls." With greatest respect to the learned judges who decided this case, I venture to observe that there was nothing new about the facts mentioned in the paragraph reproduced above, which was not already known to the general public of the undivided sub‑continent of India at that time and it could hardly be said to be a news in the sense of a fresh tidings unless the provisions of subsection (P L D 1952 Lah. 222) of section 4 of the Press (Emergency Powers) Act were attracted by the matter contained in this paragraph. In the case Crown v. Faiz Ahmad Faiz (P L D 1952 Lah. 222), a Division Bench of this Court noticed the passage from Shamsul Huda's case reproduced above. But this was in connection with the form of the document in question. Dealing with this point, the learned Chief Justice was pleased to observe :‑ "Thus, the essential elements of the definition of `news' is novelty or newness of something reported. The matter reported may be a happening, an event or an act and the news will be public news within the meaning of the Act if the public are interested in the matter reported. Thus any document which purports to give information of a recent happening would be a news‑sheet if the event reported is such that the public are interested in knowing it. It is wholly immaterial what form the document takes. It may be a newspaper, a placard or a handbill. Provided it contains fresh information of general interest, it would be a news sheet, though a poster if it merely amounts to an announce ment or an advertisement, may not come within that definition." (1) A little later his Lordship was pleased to make the following observant. "As we have said above, the essential test in such cases is the contents of the printed document and not the manner in which it is displayed or distributed. If the document contains information of recent events in which the public are interested, it does not matter whether it takes the form of a handbill or placard or is posted or displayed in a public place." The dictum of their Lordships on the point which falls for decision in this case is that the document contains infor mation of recent events in order to attract the definition of a news‑sheet contained in subsection (6) of section 2 of the Press (Emergency Powers) Act. In my view, therefore, in noticing the paragraph from Shamsul Huda's case reproduced above, the learned Judges of this Court did not specifically approve the decision in that case if it was intended to lay down that although the information contained in a document may relate to some event which had happened long ago it shall fall within the definition of news‑sheet provided it concerns a matter of public and topical interest. I, therefore, respectfully beg to differ with both these authorities and find that the impugned publication in this case did not fall within the definition of a news‑sheet on the ground that it contained any public news or a comment on a public news. As regards the application of clauses (b) and (d) of sub section (P L D 1952 Lah. 568) of section 4, I feel no hesitation in observing that except for an intemperate word used here and there, the entire publication consists of a reasoned statement and criticism of certain measures adopted by the Government vis‑a‑vis the martial law convicts, particularly towards Maulana Abul A'la Maudoodi and Jama'at‑i‑Islami. The reasons and inferences drawn from the facts mentioned in it may be erroneous, but, as noticed above, it is significant that the correctness of none of the facts mentioned in it was con troverted. It is too late in the day to contend seriously that an adverse criticism of the measures of the Government is culpable either under the provisions of subsection (P L D 1952 Lah. 568) of section 4 of the Press (Emergency Powers) Act or the relevant provisions of the Pakistan P. C. A large number of authorities were cited by the learned counsel for the petitioner and the Crown before me on this aspect of the case, but on account of the view expressed by me earlier that the impugned publica tion contains a reasoned criticism of certain measures taken by the Government and has an appeal to the head rather than the heart, I consider it unnecessary to refer to them. In the matter of Jarida‑al‑Islah' (Urdu Weekly), Lahore, and Petition of Abdul Rahman Malik, Publisher Jarida‑al‑Islah' Lahore v. The Crown (P L D 1952 Lah. 568) a Full Bench of this Court held that a balanced and reasoned criticism of persons charged with running the Government should not only be tolerated but even encouraged although no attack against the State is to be tolerated. The learned Assistant Advocate‑General in this connection referred to certain sentences and words used in the publica tion and maintained that these were calculated to create disaffection against the Government established by law. But in canvassing this argument he had to borrow the meaning of the word "disaffection" from a Single Bench case of the Bombay High Court, Queen‑Empress v. Bal Gandhar Tilak (1 L R 22 Bom. 112) in which Strachey J., defined it as "want of affection". The meaning of the word "disaffection" towards a Government C has not only undergone a great change since 1898, particular in countries which profess to be free democracies, but the learned counsel for the petitioner has drawn my attention to a Full Bench decision of the same Court reported in the same volume at page 152, Queen‑Empress v. Ramchandra Naranyan, in which dealing with a charge under section 124‑A Pakistan P. C. the learned judges defined " disaffection " as follows " Per Parsons, J.‑The word "disaffection" used in section 124‑A of the Indian Penal Code cannot be construed as meaning an absence of or the contrary of affection or love, that is to say, dislike or hatred, but is used in the special sense as signifying political alienation or discontent, that is to say, a feeling of disloyalty to the existing Govern ment, which tends to a disposition not to obey, but to resist and subvert the Government. Per Ranade, J.‑" Disaffection" is not a mere, absence or negation of love or good‑will, but a positive feeling of aversion which is akin to disloyalty, a defiant insubordination of authority, or when it is not defiant, it secretly seeks to alienate the people and weaken the bond of allegiance and pre‑possess the minds of the people with avowed or secret animosity to Government,‑a feeling which tends to bring the Government into hatred or contempt by imputing base and corrupt motives to it, and makes them indisposed to obey or support the laws of the realm, and which promotes discontent and public disorder." Lastly, the words "Arbab‑i‑Iqtidar" (persons in authority) and "Hukamran" (rulers) used in the impugned publication, unmistakably show that the subject‑matter of criticism was not the Government established by law but some of its personnel and that also in relation to certain measures and policies which they were alleged to be pursuing towards a rival political party and its head. In the case Queen‑Empress v. Bal Gandhar Tilak, Strachey J., while defining the words "Government established by law", at page 135 of the report, observed as follows " Lastly, the authority or institution against which it is an offence to excite or attempt to excite feelings of disaffection is the Government established by law in British India'. What is the meaning of that expression? It means, in my opinion, British rule and its representatives as such,‑the existing political system as distinguished from any particular set of administrators." Taking a liberal, view of the whole of the publication in question and the meaning of the words "disaffection" and Government established by law" reproduced above, I cannot but come to the conclusion that no part of it attracts the provisions of subsection (1) of section 4 of the Press (Emergency Powers) Act. For the reasons mentioned above I allow this revision and set aside the conviction and sentence passed on the petitioner by the learned trial Court. A. H. Petition allowed.