P L D 1954 Lahore 14 (PLP)

RAHMAN J. (MUHAMMAD JAN J. concurring).‑On the 29th May 1952, the Punjab Government, under the signatures of the Chief Secretary, issued two notices, one to the printer and publisher of the Daily Imroze, Lahore, and the other to the keeper of the Pakistan Times Press, Lahore, declaring that in exercise of powers conferred by sections 4 and 8 of the Press (Emergency Powers) Act (XXIII of 1931) hereinafter referred to as the Act), the Punjab Government had forfeited the security of Rs. 3,000 each deposited by the recipients of the notices. Two petitions, Criminal Original No. 14 and Criminal Original No. 15 of 1952, have been presented under section 23 of the Act, in this Court on behalf of the printer and publisher of the Daily Imroze and the keeper of the Pakistan Times Press respectively, to challenge the orders of confiscation and this Special Bench has been constituted to deal with them. Action was taken by the Punjab Government on the basis of an article published in the issue of the Daily Imroze, dated the 2nd May 1952, and headed 'Gar to bura na mane (if you would not take it ill). This article was claimed to fall within the mischief of subsection (1) of section 4 of the Act. In particular, according to the learned Advocate‑General who appeared for the 'Provincial Government, it was hit by clause (d) of subsection (1) of section 4 of the Act as it had the tendency to bring the Government into hatred or contempt or at least to cause disaffection against it. On the other hand, the petitioners have contended that at best the article contained comments expressing disapprobation of the measures and policies of Government, without attempting to excite hatred, contempt or disaffection against it and, therefore, the orders of forfeiture were not justifiable in law. The question for decision is whether the article has the tendency imputed to it in the Government orders. Before discussing the article in question it would not be out of place to make some general observations. It is well -settled that in such cases under the Press (Emergency Powers) Act the impugned articles has to be read as a whole, in a fair, free and liberal spirit. Too much stress must not be laid on isolated sentences even if they are couched in intemperate or objectionable language. The trend of the entire writing must be judicially weighed in the circumstances of the case. It must also be remembered that the provisions of the Act are penal ii) character and, therefore, they ought to be construed liberally) so as to lean towards the liberty of the subject, especially in view of the new democratic set‑up in the country. Party Government is the rule in a democratic regime and there should be ample latitude allowed to rival parties to criticise those in authority. This right should not be unreasonably or unduly curtailed by judicial fiat, especially during peace time. Healthy public opinion can only be fostered by a frank and, vigorous criticism of the party in power. At the same time it must be conceded that though the con notation of the word 'sedition' (whose definition embraces clause (d) of subsection (1) of section 4 of the Act) , has undergone considerable charges with the passage of time, the law as it stands at .present, has to be applied in each particular case and the Courts cannot refuse to administer a certain law even if it operates somewhat harshly. A writing evincing an unmistakable tendency such as is envisaged in clause (d) of subsection (1) of section 4 of the Act, would be actionable even if the writer had acted from the best of motives. I next address myself to the contents of the offending article. It purports to be a humorous piece of writing contri buted by the writer under the pen‑name of But Shikan (idol breaker). Under the main heading there are three subhead ings given as follows :‑ 'The poor Editor has been imprisoned.' 'Who got Mubarik Ali arrested ?' 'Relationship between the Security Act and the Security Council.' The writer starts by referring to a fictitious incident con cerning the editor of a paper, who was found lamenting in his circle of friends that he had been virtually imprisoned in Pakistan. His friends pointed out to him that the Security Act had been devised as an antidote for those mental patients who suffered from the ailment of thinking, whereas the Editor owing to the grace and bounty of the Education Department was wholly unlettered and, therefore, that Act could have nothing to do with him. The Editor came out with the explanation after indulging in further lamentations that he apprehended that he could not leave Pakistan to go to a foreign country. His friends on this expressed astonishment and asked him whether his relations with Great Britain and America had deteriorated. He then retorted that the trouble was that those relations, instead of suffering deterioration, had improved. He amplified this declaration by saying that the incident of Mubarik Ali Ahmad had created apprehension in his mind that if he left Pakistan, the Bharat Government, with which his own relations were somewhat strained, would get him arrested and take him to Bombay. This was obviously a reference to the well‑known incident of the extradition of Mubarik Ali Ahmad, a Pakistani national, who had been arrested in London at the instance of the Government of India, and extradited to India by order of a British Court for being tried for an alleged criminal offence. In the second paragraph, the writer says that when this news reached him, he first laughed and then cried. He laughed because the matter reminded him of the story of the mosquito who asked for permission to enjoy a siesta on the horns of an ox. He cried because the Editor was worrying for his own person without considering that the entire personnel of the Pakistan Embassies along with the Foreign Minister, were in serious danger of being arrested, since, according to the writer, John Bull's Law was that the offenders belonging to the Com monwealth could be arrested in Britain and sent out to foreign countries but the usurped territory of a member country of the Commonwealth could not be restored to it. (The last part of this sentence obviously contains a dig at the United Kingdom for its failure to solve the Kashmir tangle). Accord ing to the writer, it followed that Mr. Ispahani (Pakistan Ambassador) and Chaudhri Muhammad. Zafar Ullah Khan (Foreign Minister) could not hope to remain immune from arrest for long. On the contrary, so the writer says, a day might dawn the Indian High Commissioner, having obtained a decree from a British Court, might get the entire population of Pakistan including Maulvi But Shikan, attached and when the whole of Pakistan is thus vacated, he would have it allotted to Pandit Nehru under the law relating to evacuee property ! These two passages it is clear, provide a somewhat acid comment on the relations between Great Britain and this country and the incident of extradition of Mubarik Ali Ahmad at the instance of the Indian Government, which had caused a strong wave of resentment in this country. It is conceded by the learned Advocate‑General that these two passages are not actionable under section 4 of the Act. The next four passages contain some matter to which exception is taken on behalf of the Provincial Government. In the third paragraph, the writer says that had the Editor considered the matter properly, he should have concluded that the responsibility for the incident relating to Mubarik Ali Ahmad lay on his journalistic shoulders as well. Although the connection of the Editor with the incident was rather remote, yet in the writer's opinion it was a legitimate method of criticism. He declares that the major share of the responsi bility for the arrest of Mubarik Ali Ahmad and for the consequent disgrace heaped on the head of Pakistan, could be laid at the door of those journalists who were supporting a Government whose wrong policy, not only on this occasion but on previous occasions also, had led Pakistan to disgrace and dishonour. He then gives expression to the view that if the Government had been constituted by men with lofty objectives and high ideals, some of whom were being incar cerated in jails, we would not have had to see this evil day. If the Editors of papers had not confined themselves to the objects of securing Government advertisements and trips to Europe and America and had not acted as deaf and dumb persons in respect of the Security Act merely to please Government, the reins of power would have been to day in the hands of those self‑respecting and bold youngmen, who had dreamt dreams of making Pakistan the most powerful and civilised State of the world and who were suffering tortures in jails for the crime of indulging in those dreams or whose lips were sealed on account of the terror of the Security Act. The language used in this paragraph is undoubtedly strong. One may even describe it as intemperate and somewhat in bad taste. But the drift of the passage is clear. It amounts to a criticism of the Security Act for which the writer holds the Government responsible, with the result that, according to him, an atmosphere had been created, in which spirited youngmen could not come to the fore and liberty of speech lead been sup pressed. It may be noted that only a few days earlier, the Pakistan Legislature had passed the Security Act. It seems to me that though couched in somewhat questionable language, the passage amounts to no more than criticism of a legislative measure for which the party in power would naturally be held responsible and on the merits of which two opinions are possible. As such it does not appear to fall within the foul corners of clause (al) of subsection (1) of section 4 of the Act. In the fourth paragraph, the writer sarcastically wishing a larger circulation to the Editor, reiterates that the responsi bility for the arrest of Mubarik Ali Ahmad and the consequent insult offered to Pakistan (which the writer figuratively describes as the cutting of Pakistan's nose) must also be assigned to his eulogizing pen. He proceeds to observe that by their deeds, the Editors had created conditions under which falcons (symbolising courageous spirits) would not prosper and only creatures of the genre of crows and kites could flourish He says that statesmen and politicians, who could give up their lives for their country, could not be born from the wombs of laws like the Security Act. In the end he con tends that the Editors had, not stopped to consider for a moment that though the Act might make the seats of those in power secure for, sometime, yet it may permanently deprive Pakistan of the high station for which it was destined and that this country might always remain a supplicant at the door of big powers. This passage too is a diatribe against the Security Act and those 'journalists who failed to raise their voices of protest against such penal laws, ostensibly leading in the writer's view, to suppression of free and frank opinions. Except for the incidental gibe at the people in power trying to retain their seats for sometime, the rest of the passage does not appear to fall within the mischief of clause (d) of subsection (1) of section 4 of the Act. Paragraph 5 is in two parts. In the first part the writer expatiates on the results that would flow from the enforce ment of a measure like the Security Act. He considers that our future generations would be cowardly, chicken‑hearted and dull‑minded fellows. They would be like children frightened by stories of hobgoblins. In the writer's view, the progeny of the Security Act would always look up to the Security Council for solution of their difficulties and there would be none among them who could entertain the thought of "colliding ‑with floods and moving mountains". They would be mean‑spirited people open to sale for the benefit of the highest bidder. They would be kicked by the English and their own landlords and jagirdars. and would only be fit for reciting mystic or erotic poetry in mushairas. They would be incapable of producing movements which could lead to a bright future for Pakistan. On the contrary, some of the children terrified by the Security Act might turn into thieves, black marketers and thugs as the nefarious activities involved would be easy for paltroons. He adds that the Government would also have no objection 'to these activities as the bigger the person, the more would he be terrified of the Government and every year he would become a member of the Muslim League on payment of annas two. In the second part of the passage, the writer continues the argument by saying that the Security Act, on whose birth the Editor was dancing, had been brought into existence to put an end to our national traditions and magnificent future. This was a veritable sword (of Damocles) hung over our heads so that the Editor might not question the Government as to why they would not recede from the Commonwealth on account of the arrest of Mubarik Ali Ahmad and why they could not boycott British goods. He then in a vein of exaggeration says that this atom bomb was being, dropped on the Hiroshima and Nagasaki of Pakistani minds so that in these two habitations, questions may not be born for which answers have not yet been suggested to our rulers by the British High Commissioner. The rest of the passage seems to be a typical piece of communistic jargon using the by now well‑known symbol of opinion being administered to the people in order to make them reactionaries and to suppress the plaintive cries of the future of the country which was being butchered. The gravamen of this passage appears to me to be an attack on the Security Act and the consequences that in the writer's opinion, would necessarily flow from it. There is no doubt also an attack on the Govern ment, which is, according to the writer, tried to the apron strings of the British and would tolerate black‑marketeers etc, as they would be more or less yes‑men of the Government. In figurative language, it is further stated that the Security Act had been brought into being in order to have a soporific influence on our national traditions and future greatness. The writer in his zeal may have to a certain extent exceeded the limits of fair criticism and may have resorted to hyperbole to add pungency and point to his argument but all that its amounts to is a condemnation of the internal and external policies of the party in power and as such does not appear to attract the provisions of section 4 of the Act. The last and the sixth paragraph calls upon the renowned Editor, if he has taken to heart the arrest of Mubarik Ali Ahmad and the disgrace and dishonour of Pakistan, to open his mouth and ask the Government why they consider the public to be fools, and why they imagine that if they tell Great Britain that they should behave or Pakistan would be cross with them, the public would feel satisfied. He enjoins the Editor to inform the Government that he was not prepared to tolerate this insult to the country or the Government which was responsible for it. He says that the Editor has every right to demand an answer from those who are bent upon burying alive, like the legendary Anarkali, the national aspira tions and dreams of greatness of Pakistanis, who are forcing the literate thinking and freedom‑loving people to decide on migration from the country, who are determined to turn loyal Pakistanis into ill‑wishers of Pakistan and who want their children to wear bangles (like‑women) and remain at home. He winds up by saying to the Editor that if he has the courage to ask these questions, he may rest assured that,‑ despite strained relations with the Bharat Government, he would be able to go to any place out of Pakistan without any apprehen sions about his personal safety. Here again the object of the writer seems to be to point out that the Government had not taken up the question of redress for the insult offered to Pakistan in the right way and had not broken off relations with the Commonwealth in protest. The language used is flowery and highly coloured, but read as a whole, in a liberal spirit, it aims at a vigorous denunciation of Government policy and does not exhibit primarily a tendency to bring the Government estab lished by law into hatred or contempt or even to cause dis affection against it. It would be too much to say that all adverse critisism of Government policies should be taboo as it is bound to engender a feeling of disaffection against Govern ment. A democratic administration cannot afford to be too sensitive in this respect. It has to be borne in mind that on the face of it, the article is meant to be a humorous piece of writing and the average reader would, therefore, be quite conscious that the writer was' offering him a caricature of facts rather than a strictly accurate picture, in order to lend piquancy to his comments. He would therefore, make a large allowance for this factor and would understand that the picture had been deliberately distorted as in a cartoon with a view to entertain and amuse The more intelligent reader would chuckle at certain acute or sly digs at the powers that be and pass over the purple passages indicating lack of good taste, with an amused contempt. The contents of the article no doubt could have been expressed in more tasteful and temperate language. Much may, however, be forgiven to a writer who deliberately plays the clown in public but in the course of his buffoonery, lays an accusing finger on the weak spots of the administration. After a careful perusal of the whole article I have been unable to persuade myself that it falls within the mischief of clause (d) of subsection (1) of section 4 of the Act, though perhaps it goes perilously near the border line between legitimate criticism and actionable writing at certain places, It may be pertinent to mention that this very article was first published in the Imroze of Karachi, in its issue dated the 28th April 1952, but the Central Government appears to have considered it undesirable to take any action on its basis. I am, consequently, of the opinion that the two orders confiscating the securities furnished by the petitioners in the present case were not justified in law. I would, therefore, allow the petitions and set aside the orders of confiscation of the two securities. In the circumstances I would make no order as to costs. I would like to add a note of warning to the petitioners that I should not be understood to say that a professedly humorous article can never fall within the mischief of the Act. This Court might take serious view of the matter in a suitable case if honour is made a mere stalking horse for bringing the Government established by law into hatred or contempt or for causing disaffection against it. KAYANI, J.‑In matters relating to the press, our responsi bility is perhaps the heaviest, as on our judgment must depend the growth of a healthy tradition‑for the press on the one hand to lead public opinion to constructive ends, for the Government on the other to be guided by that opinion. If, therefore, the ends at which the press is aiming are not constructive, our judgment, where it supports the press, will have the effect of forcing the Government either to harbour a disease which may infect the body‑politic or, in self‑preserva tion, resort to measures which have the appearance, of being represive. Enactments which such concomitants as "If the Government is of the opinion" or "to the satisfaction of the Government", excluding as they do the opinion of Courts of law as to whether the satisfaction of the Government was reasonable, are the result of excessive liberality by such Courts and when resorted to in normal times and applied to normal situations, suggest such lack of confidence in the administra tion of justice. Where there is a law that whatever tends to bring the Government into hatred or contempt or to excite disaffection against it should not be tolerated, the Courts of law should decide, guiding themselves by reason, by world opinion and, above all, by the peculiar equipment of our own people, in tellectual, religious and moral, whether any particular writing has that tendency. While still wearing our robes, we should transport ourselves mentally to shops and streets and villages, where people, unlike ourselves, do not philosophise over an unpleasant situation but decide with fists and daggers, where they do not probe into the motives of the particular new sheet editor but accept most things in print as facts. At the same time we have to realize that people are not so ignorant politically as they used to be and that a whole gene ration of elections to legislatures, attended as they generally are by speeches as of false lovers, has in some measure render ed them insensitive to falsehood, false promises and false accusations. In short, the tendency to be afflicted with con tempt, hatred or disaffection has appreciably diminished. Our duty is, therefore, to draw a line and a line can surely be drawn somewhere. It is because our judgments are likely to mislead the journalist into further excesses and‑worse than that ‑because they are cited to ourselves as precedents, that I am anxious to point out where I should draw the line. This is, in my opinion, one of those cases where I should say, in other contexts, that the accused should be sentenced to im prisonment till the rising of the Court. I have not tried to persuade my brothers to my way of thinking‑and I am not sure from the discussion we had that I could not persuade them‑because it was also my feeling that the security of the press and of the paper should not have been forfeited, at least entirely. Nevertheless, it is necessary to make the position clear. The article to which the Government has taken exception appears sufficiently in the judgment of my brother Rahman, and as regards the first two paragraphs I agree that they con tain nothing injurious, In fact, I cannot but admire the "Iconoclast" for the height of humour which he has attained in these paragraphs, a circumstance which at the very outest is likely to create warm feelings for him. In the third para graph he states that the responsibility for Mubarak Ali's arrest (by way of extradition in England) and for the conse quent disgrace to Pakistan rests principally on those journa lists‑it is understood that he is addressing the editor of the Dawn‑who supports a government whose misdirection in policy has led Pakistan to disgrace not only on this occasion but in the past also. But "if our Government had consisted of those persons of noble motives and lofty ideals some of whom are to‑day rotting their youth in jails, we should not have seen this evil day".' It is fair criticism, I think, to say that it was the misguided policy of the Government which led to this ignominy guided as it was by persons without lofty ideals. In a party government it is even permissible to ascribe ineffi ciency to Government. But what has been said here goes beyond this limit. It says indirectly but clearly that those noble‑minded persons in jails are there just because they would be in the government if you had not incarcerated them. If I were to believe this. I should certainly think contemtuously of the Government. My feelings would be the very opposite of affection towards those who are responsible for sending this flower of national youth to jail, to fade unseen. Consequently, although the "Iconoclast" might have merely permitted himself to be carried off his balance by a powerful tide of humour if he hits a hidden rock, he should expect injury. At the end of the same passage he states that if loaves and fishes of some kind had not tempted our journalists to reserve, the reins of power would have been to‑day with those brave and honour able young men who have dreamt of making Pakistan the most powerful, prosperous and civilised State in the world and who are now either being roasted on the jail bars or have been intimidated into silence for the offence of thus dreaming. Here too, although the author may be honestly pleading for those in jail, his pleading may have the effect of breeding disaffection. Who can think well of a government which puts people in jail with such sordid motives ? Then, passing over the fourth paragraph as containing intelligent criticism of the Security Act, we come to the fifth which, after stating that the Act in question cannot but pro duce cowards, finishes thus: "The children terrified by the ghost of the Security Act will certainly produce among them thieves, black‑marketers and thugs, because all these acts" (namely, those of thieving, black‑marketing and cheating)" are in the line of cowards, and. even the Government has no objection to these acts, for the bigger the person, the more terrified he would be of Government, and every year he would become a member of the Muslim League on payment of twin annas." It is, I think, quite proper to point out that the Security Act would foster cowardice, whether this is true or not, but to say that the Government has no objection to acts of cheating and thieving amounts to saying that the Govern ment fosters cheats and thieves, and the reason for such fos terage is also given‑that such people by the very precarious position which they enjoy by reason of black‑marketing etc, are terrified of the Government. If the people thought the Government fostered these evils or even connived at them, their feelings are likely to by of hatred or contempt towards it., I have the same feelings about the following passage in the second part of this paragraph : "You are dancing at the birth of this Security Act which has been brought into being 'in order to full your national traditions and magnificent future to the stupor of death", and, in the last paragraph the following observation : "You have a perfect right to question those who are bent upon burying alive‑like Anarkali of yore‑your national aspirations and dreams of nationhood." The Govern ment is undoubtedly accused of killing and even burying alive that something‑too often profaned in journalistic jargon‑on which depends the very life of a nation, and if this accusation does not tend to bring the Government into hatred or con tempt, I cannot reasonably think of anything that falls within the Act. But, after having said this, I am not convinced that, know ing the "Iconoclast" and his political associations, the Govern ment could not have relied on the good taste of its people and ignored these humorous efforts ; and therefore, while holding that the article is within the mischief of the Press Act, I am not unhappy that my brothers have come to the opposite conclusion. K. M. A. Petition allowed.