P L D 1967 Supreme Court 78 (PLP)

CORNELIUS, C. J.,‑I have had the‑ advantage of reading a draft of the judgment proposed to be delivered by my learned brother Hamoodur Rahman, J. and I am entirely in agreement with his view that in a case falling under section 124‑A, P. P. C., where the charge is based upon a statement concerning measures taken or alleged to be taken by the Government, it is irrelevant for the purpose of establishing the charge whether the allegations of fact made in such statement are true or otherwise. I also agree that it is not relevant even for determination of sentence, whether the allegations of fact are true or untrue, in a case where the prosecution does not make it a part of its case that the statements were untrue. My learned brother has referred to the leading cases on the subject in the Pakistan jurisdiction as well as from the English and other jurisdictions and has shown that with the exception of a 'single case from among the English cases, which may not have been correctly appreciated, the view that has been consistently held is that evidence as to the truth of the measures which formed the basis of criticism offered in the offending statement cannot be admitted in cases where the libels are alleged to be, as in this case, seditious. The principle upon which this rule is based is simple and salutary. It is that it can never be in the public interest that enquiry into the truth of such statements should be allowed in cases where the essential and indeed the only question for the Court to decide is whether the effect of the language used is such that it is calculated to create in the minds of those who see or hear it a feeling of revulsion towards the Government by law established, so strong as to amount to hatred or contempt, 'or in a still worse case,. where the hatred or contempt is so strong as to have the effect of seriously taking away from the Government the allegiance of the public or a section thereof, in other words, producing "disaffection." It is of course not necessary that such feelings should have actually been caused: it is enough that the language used was calculated to produce this result or in the alternative that an attempt should have been to produce such a result. Passages have been cited in the judgment of my learned brother from three judgments in cases under the Press (Emergency Powers) Act XXIII of 1931 delivered by myself ip the High Court of Lahore in the year 1949. As has rightly been observed by my learned brother the burden of each of the passages which he has cited is related not at all to the question for consideration in the present case, but to examination of the effect of the words used in the offending publications upon the minds of those who read them. The question whether the statements were factually correct did not arise for determination in any of those cases and I may point here to what I said in the case of Sher Muhammad (P L D 1949 Lah. 510) viz., that the statements which were the subject of the charge in that case had not been controverted by the Government and therefore the Court was entitled to proceed on the basis that those statements were true. In the same case, after observing that it was not necessary in order to bring a statement within the mischief of certain sections of they Press (Emergency Powers) Act, 1931 which are in almost the same terms as section 124‑A, P. P. C., that the statements in question should be untrue in fact, I said that since dissemination of correct information is one of the functions of the public press "and equally of political prepagandists" the gravity of the offence would fall to be measured on an entirely different basis, if an offending statement was not only calculated to produce the mischief in question, but was . also based on untruth. The responsibility of the public Press was a factor relevant to the discussion, it being a recognised organ of dissemination of public information. Where it is operating under normal conditions, the presumption in respect of a statement of fact appearing in the Press, particularly in relation to measures taken by the Government which are by their nature not secret, would be that such statement is true. By a rule made by the High Court under that Act; the State was enabled to controvert by affidavit the truth of factual statements made in articles deemed to be within the mischief and where that liberty was availed of, the opposite party would necessarily have the corresponding liberty of establishing the truth of those statements in the same mode. The right there given was of a statutory nature, resting on a precedent condition, which might or might not be satisfied. In what circumstances would the condition be likely to be satisfied? The State is often obliged to resort to severe measures to cope with existing situations in' the field of law and order and must be presumed to be sensitive to the circumstances that it is not to the advantage either of the Government or of the general public interest that such measures should be publicly criticised. The further presumption must be that the State would not, by affidavit, raise the question of the truth of the facts stated in the offending publication unless it was wholly satisfied, not only of their falsity, but also of its own ability to establish such falsity in Court proceedings. Further, it would only do so if it had taken action appropriate to a publication which not only was, in its opinion, seditious within the meaning of one or more of the clauses in section 4(1) of the Act of 1931, but was also based wholly on untruth. Under that Act, , in the case of Sher Muhammad, two courses were open to the State. The Capital Press, to which the case related, had been declared to the Government under section 4 of the Press and Registration of Books Act, 1867, but no security had then been demanded from it. In respect of the offending publication, security in the sum of Rs.1,000 had been demanded from it by the Provincial Government under section 3(3) of the Act of 1931. A much more severe actions was possible under section 4(i) of that Act, viz., an order of forfeiture of the Press. When in the judgment in Sher Muhammad's case I said that "where a statement of the relevant 1 kind is found to be true, its effect must be measured on an entirely different basis from that of a statement which is untrue." I was referring not only to the effect on the mind of the readers thereof, but to two other effects as well, viz., (1) the effect in relation to the action taken by the Government, which in that case was the mildest action permitted by the law and (2) the effect produced in respect of the question what action the High Court should take under section 25 of the Act of 1931. The judgment to be exercised would obviously cover a much wider range of considerations than in a criminal prosecution, where the matter is reduced to a defined and limited charge. But again, the examination of the truth or falsity of the statement would be conditional upon the State taking upon itself the burden of proving its falsity, which it would presumably not undertake, unless it were attempting to justify the taking of the severest form of action, namely, forfeiture. Moreover, its right to raise the question is based, under the Act of 1931 on a statutory rule. It will be evident that the concept of "entirely different basis" arising out of my observation quoted above, in Sher, Muhammad's case does not, in any sense, cover a claim such as that made here, by an accused person in a prosecution under c section 124‑A, P. P. C., of a right to prove that his statement, even if it be held to offend against the provisions of that section, saves him to any extent from its mischief by being partly of wholly based on truth. The argument which. has appealed to the learned Judge in the High Court is that the truth or falsehood of the allegedly offending statement might be taken into account for determination of what might be the appropriate sentence in the case. As my learned brother has pointed out, the gravity of an offence under section 124‑A, P. P. C., is to be determined by the effect which the offending statement is calculated to product/ in the public mind and when it is borne in mind that the mischiefs of that statement are capable of being multiplied, manifold, if it is allowed to be canvassed as to truth or false in whole or in part, in a public trial, it must appear with clarity that it cannot be a part of the intention of section 124‑A that such an enquiry should as a matter of course be permitted in the course of the trial for any purpose whatsoever. I do not understand explanations (2) and (3) appended to section 124‑A as providing directly or indirectly an opportunity of enquiring into the truth or falsehood of what has been said concerning measures, that is to say overt actions, taken by the Government. The emphasis in both explanations (2) and (3) is upon the quality of comment contained in the statement, .that is to say that while such comment is critical or disapproving, it yet is couched in terms which do not have the effect of exciting or attempting to excite violent feelings of aversion towards the Government. Comment which has overtly a purpose of obtaining alteration .of governmental measures by lawful means is also saved from the application of the section. Therefore, the full benefit of explanations (2) and (3) of section 124‑A can be obtained without entering into the facts underlying or constituting the administrative measures or actions in question. The case would be otherwise if as a part of its case, in a prosecution under section 124‑A, the State should charge that the allegations regarding measures or actions taken by the Government were entirely untrue and this could only be in an attempt to establish a high degree of gravity of the offence for the purpose of securing an appropriate punishment. As I have said already, the State would only undertake the risk of public enquiry into its measures after giving proper consideration to the questions whether it is to the advantage of the Government or of the general public interest. In such a case, I would find it difficult to hold otherwise than that by the action of the State itself, the accused person would necessarily have to be provided x with an opportunity to controvert this part of the charge against him, that is to say, by attempting to establish the truth of what he has said regarding the governmental measures in question. The offence, if found, would of course be only in relation to the nature of the offending statement, in itself, which may conceivably be capable of the most serious mischief, in the way of sedition, even though it might be based on truth and therefore would qualify for a high measure of punishment. But where the attribution of actions to the Government be also found to be false, wholly or substantially, there would lie visible malice, of a nature akin to treason, which the Court trying the offence would be entitled to take into consideration in assessing the appropriate punishment within the widely separated limits allowed by the law, viz., a maximum sentence of transportation for life arid a minimum of a fine only. HAMOODUR RAHMAN, J.‑This appeal, by special leave; has been filed by the State and it is directed against an order of a learned Single Judge of the High Court of West Pakistan, Karachi Bench, setting aside in revision an order of a Special Magistrate, disallowing certain questions put by the defence, in a prosecution for sedition, to establish that certain facts referred to in an alleged seditious speech were true. The respondent herein has been charged under section 124‑A of the Pakistan Penal Code in respect of a speech delivered by him on the 22nd of August 1962, in. Karachi. His prosecution was started on 'the basis of a complaint filed by the District Magistrate after obtaining the sanction of the Provincial Government under section 196 of the Criminal Procedure Code. The relevant allegations in the petition of complaint were to the following effect:‑ "That the speech of the accused is couched in inflammatory, insulting and derogatory language. It will appear from the speech itself that the accused in making the speech is actuated with feelings of disloyalty and rebellion against the Government and has exhibited utter disregard of the existing law and order. That the accused in his speech has also urged the people to uprise against the present Government and to overthrow the Constitution which neither belongs to them, nor is acceptable in the public interest. He has also exhorted them to resort the violence and unconstitutional methods for the achievement of their objects. That it is apparent from the speech itself that it is intentionally made by the accused to bring into hatred or contempt and to excite disaffection towards the Government established by law. This speech is calculated to disturb the tranquillity of the State and to lead the ignorant public to do subversive acts against the Government, the Constitution and the laws of the country. The accused has thus committed an offence punishable under section 124‑A of the Pakistan Penal Code." ' In this petition of complaint no question was raised as to the truth or falsity of the statements made by the respondent. In the charge framed by the Magistrate also no such accusation was made, but at the trial when defence witnesses were being examined the defence attempted to elicit from the mouths of the defence witnesses that some of the statements of fact made by the respondent in the course of his speech were factually correct and true. The Special Magistrate disallowed the questions holding that such evidence was inadmissible, as truth could not be pleaded as a defence in such a prosecution. The learned Judge of the High Court agreed with him that the truth of facts mentioned in a seditious speech or writing could not be pleaded as a defence in a prosecution for sedition, for, the, truth thereof could not be a justification for making the seditious statement, but held that, nevertheless, the truth of the statements of fact was not . wholly irrelevant. In his view for determining the quantum of the punishment to be imposed ,the truth of such statements might be a relevant consideration. The correctness of this view is now sought to be assailed by the State mainly upon three grounds, namely, (i) that since the truth of the facts cannot be set up as a plea in defence so far as the culpability in respect of the offence is concerned, it is wholly irrelevant; (ii) that the admission of such evidence would be contrary to the provisions of sections 5 and 136 of the Evidence Act and (iii) that the language used by the Legislature in section 124‑A of the Penal Code does not also support the view taken by the learned Judge in the High Court. It does not appear that either before the Special Magistrate or before the learned Judge in the High Court the defence ever contended that the truth of the statements could in ‑law be pleaded as a defence but the learned Judge of the High Court after considering the language of section 124‑A and after coming o the conclusion that "the question as to the truth or otherwise of the words so used is a question wholly irrelevant to the consideration as to whether an offence under this section has made out or not" yet felt that since the explanation is appended to. the section. brought in the question of the intention of the make of the seditious statement the truth, or falsity of the statement itself became impliedly a relevant circumstances, at any rate, for the purpose of determining the quantum of punishment to imposed. The accused, it was, therefore, held "should not be prevented or shut out from an opportunity of placing such material on the record of the case". The learned Advocate‑General appearing in support of this appeal, however, urges that apart from two "passing' observations" in two decisions‑one of a learned Single Judge u(' the High Court at Lahore and the other of a Court in England, there is no other authority to support such a view. Mr. Mahmud Ali, learned counsel for the respondent, on the other hand, is not prepared even to concede that the truth of the seditious statement cannot be raised as a plea in defence in a trial ‑ for sedition. He has relied for this purpose on certain observations contained in the judgments in ‑the cases of Naya Zamana v. The Crown (P L D 1949 Lah. 212), In the matter of the Daily Ehsan (P L D 1949 Lah. 282) .1 Sher Muhammad v. The Crown. These were all cases under the Press Emergency Powers Act, but since the language of some of the clauses of subsection (1) of section 4 of the said Act is not dissimilar to the provisions of section 124‑A, it is urged that the same principles should be applicable. I have read these judgments with great care since in each of these cases the judgments relied upon are those of Cornelius, J., (as he then was). I find, however, that the main question posed in each of these cases was as to what was the effect of the words used upon the minds of the listeners or readers and not as to whether the statements were factually correct. Thus in the first case at page 216 it was said:‑ "Assuming without holding to that effect that `the police' and `the officers' constitute a clause or section of His Majesty's subjects for the purposes of section 4(1)(d), does this statement, appearing in the context of the article in question, tend directly or indirectly to bring the police or the officers into hatred or contempt? Mere dislike or disapproval is not sufficient to constitute hatred or contempt. Contempt is the act of ‑despising or . viewing something as mean, vile or worthless. Hatred is a sustained feeling of bitter aversion, generally combined with a desire to injure, destroy or get rid of its object. These are strong feelings,, and strong words are required in order to arouse them. The words used with reference to `the police' and `the officers' in this article do not in our opinion possess anything approaching the requisite character for producing such violent emotional 'reactions." Similarly in the next case at page 295 it was observed:‑ . "We are required to estimate in this case the effect upon the minds of devotees of a particular faith of a writing which characterizes practices of long standing which are dear to them, 196 and which they hold in veneration, as idolatry and superstition Our task is made the easier by the consideration and it is of the effect upon such sensibilities as possessed by the sect whose practices are discussed in the article and as displayed by the opposite sect, that we have to Judge . . . . . The article will come within the mischief if it tends to arouse feelings of enmity or hatred or contempt. Much of these feelings is in the nature of an emotion. If the article is expressed in emotional terms, there will prima facie be a tendency in it to arouse emotions in the minds of its readers, but on the other hand, if the appeal be to the head, rather than to the heart, if reason and not the emotions be exercised or invoked, the presumption will be to the contrary, namely, that no emotions are likely to be aroused." Again, in the last case the question actually formulated for decision at page 527 was:‑ "Are these expressions calculated, in the existing circumstances, to bring the Army of Pakistan into hatred or contempt? Now, in answering that question it is important to notice, first of all, that these statements made in respect of the Pakistan Army have not been controverted on the side of the Government by any affidavit. In view of this, the Court is entitled to regard the statements made as true. Under rule 10 of the rules framed by this Court under the Press Act, the Crown is entitled to controvert statements of fact in the articles complained of by means of affidavit and as has been held by Munir, J., in the case In re: Nawa‑i‑Waqt Daily A I R 1948 Lah. 161 (S B) where there is no such affidavit by the Crown, the facts stated in the newspaper's report must be accepted as correct. It is of course not necessary in order to bring a statement within the mischief of section 4(1)(d), as bringing a class of subjects into hatred or contempt, that such statements should be untrue in fact .(the underlining is mine). At the same time, the dissemination of correct information being one of the functions of the public press and equally, of political propagandists, where the statement of the relevant kind is found to be true, its effect must be measured on an entirely different basis from that of a statement which is untrue." Even in this last passage, it will be observed, it has been abundantly made clear that in order to bring a statement within the mischief of an offence of this kind it‑is not necessary that such statement should be untrue. It would appear to follow from this that the truth of the statement does not take it out of the mischief of this offence. The subsequent sentence which seeks to draw a distinction between the effects of true and untrue statements upon the minds of the audiance does not, in my view, support the proposition sought to be established by the learned counsel. In my humble opinion, this does not mean that if the statements made are factually true they cannot amount to sedition. All that this sentence, in my view, means is this that if a statement is factually incorrect, then that would prima facie be evidence of a malicious intention. Thus if it is falsely Hero in italics alleged that a certain section or class of the people had committed atrocious brutalities on another section or class the prima facie intention of the person making these allegations would be to arouse feelings or hatred or contempt. On the other hand, suppose that in quelling a riot the governmental agencies responsible for the maintenance of law and order had in fact used such force that it had resulted in the death of a large number of persons, including women and children, can it be said that a political propagandist can make this an excuse for inciting the people at large to insurrection or rebellion in open terms? Would such a speech not come within the mischief of section 124‑A of the Pakistan Penal Code even though the fact that a large number have been killed by the use of force was true? In my opinion, therefore, in ascertaining the effect of the words uttered or written one has, as has been pointed out in the above‑mentioned cases, to look at the whole of the statement or the writing in a reasonable and fair manner and then try to Judge its effect upon the minds of the listeners or readers. If, after so reading them, the words used are such as to be capable of producing any of the harmful effects mentioned in section 124‑A of the Penal Code or to amount to an invitation to insurrection or violence for bringing about the down‑fall of the Government established by law, the truth of the statement may indeed be an aggravating factor. The observations quoted above cannot be read divorced from the facts and circumstances of the cases under consideration. In the last case the allegation that was being enquired into was as to whether the offending article was calculated to bring the Pakistan Army into hatred or contempt because of the allegations of oppression committed by them. It was in that connection that the Court came to the view that even if those allegations were true they could not have had the effect suggested by the prosecution, for, there was nothing in them which "could lead any one to regard the Army of Pakistan as `mean, vile or worthless' or to create such a degree of hostility towards it as would render the subject likely to attempt to injure the Army." The next contention 'of the learned counsel for the respondent, namely, that the words of the explanations appended to section 124‑A are such as to give the accused a right to adduce evidence of the truth of these statements, now needs to be examined. Section 124‑A is in those terms:‑ "124‑A. Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, Her Majesty or the Government established by law in the Provinces and the Capital of the Federation, shall be punished with transportation for life or any shorter term, to which fine may be added. or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation l.‑The expression `disaffection' includes disloyalty and all feelings of enmity. Explanation 2.‑Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.‑Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section." It will appear from the above that explanations 2 and 3 are designed to give a person the freedom to make "comments J expressing disapprobation" of the measures of Government or of the administrative or other actions of Government, provided these comments are made with a view to bring about an alteration by lawful means "without exciting or attempting to excite hatred, contempt or disaffection." The gist of the offence, therefore, in my view, lies in' the exciting or attempting to excite hatred, contempt or disaffection towards the Government established by law. It is, however, said that this necessarity brings in the question of motive and the intent with which the words were uttered or written and therefore, together this intention of the speaker or the writer the truth or falsity of the facts forming the subject‑matter of the comments becomes very relevant. If the statements are factually incorrect then prima facie the intention cannot be a bona. fide one. But does it follow from this that if the statements are factually true then the intention must necessarily be bona fide or harmless? A person may no doubt lawfully express his opinion even in strong terms on any public matter however distasteful it might be to others, he may assail his rival politicians, he may even criticise the Government of the day and may warn the executive of the day against taking a particular action, but does this entitle him to do so m a language which is calculated to engender feelings of hatred or contempt or to rouse passions to such an extent as to incite listeners to rebellion or insurrection or to the use of violence to get rid of the object of hatred or contempt? In my view, if he uses such language, then whatever his motive and whatever his intention, it will be difficult for him to escape from the mischief of this section. Intention, ag has often been said, is a state of mind and it can only be gathered from the evidence of his overt acts and expressions. The Court cannot look into the minds of the persons accused and has, therefore, perforce to gather their intention from their words and deeds. In each case they must be deemed to have intended the natural and inevitable consequences of their actions and utterances. Where there are no deeds but only words the speaker's intention must be gathered from a plain reading of his words. He must be deemed to have meant what he said unless the words are ambiguous and capable of bearing more than one meaning. "The test", as observed by Coleridge, J., in Rex v. Aldred ((1909) 22 Cox's Cr. L C 1 at 3), a case of seditious libel is not either the truth of the language or the innocence of the motive with which he published it but the 1 test is this t was the language used calculated, or was it not, to promote public disorder or physical force, or violence in a matter of State?" I would here add, having regard to t he wording of section 124‑A: was the language used calculated, o, was it not, to bring or attempt to bring into hatred or contempt, or excite or contempt to excite disaffection towards the Government established by law. This test, so far as I am aware, has also been adopted by the Courts in this sub‑continent in determining the guilt or innocence of a person accused of an offence under section 124‑A of the Penal Code and learned counsel appearing on behalf of the respondent has not brought to my notice any case in which a contrary view has been taken. I am not unmindful of the caution sounded by the Privy Council in the case of Emperor v. Sadashiv Narayan Bhalerao (AIR 1947 P C 82), that English decisions bearing on this subject may not always be relevant, for, in England there is no statutory definition of `sedition' and the law of sedition is regarded as a branch of the law of defamation. But even so, I find that in the case of seditious libel there is no material difference, for, even in England the Courts have consistently held that the provisions of Lord Campbell's Act enabling a defendant in a suit for libel to aver the truth of the libel does not apply. Thus in the case of Queen v. Charles Gavan Duffy ((1882) 2 Cox's Cr. L C 45), Blackburne, C. J., observed "that the privilege to plead the truth of the facts charged is given, where it is for the public benefit that the facts should be published; i.e., it makes the individual liable to have the truth stated where it was for the public benefit; but the public benefit is the only object the statute (Lord Campbell's Act) has in view any such case; and no one can contend that libels of a blasphemous or treasonable or seditious nature can come within this statute, for such never can be of any public benefit." This view was re‑affirmed in 1883 in the case of. Ex parte v. O'Brien (15 Cr. L C 180), where May, L. C. J., pointed out that "in the case of criminal proceedings for libel the law was otherwise; upon a trial in a criminal Court proof of the truth of the libel formed no defence; on the contrary it was said the greater the truth the greater the libel." In the case of the Sangbad Newspaper and Nasiruddin v. The Province of East Pakistan (P L D 1958 Dacca 324), to which learned counsel for the respondent has also referred, I find that there too I expressed the view that "so far as the truth or falsity of the news item is concerned, we must observe that it is quite immaterial whether what was stated is true or untrue. We are concerned merely with the tendency of the words used and thus even if a true item of news can have the tendency mentioned in clause (d) of sub section (1) of section 4 of the said Act (Press Emergency Power. Act), it would be as much actionable as an incorrect item news." I see no reason even now to depart from this view. I am unable, therefore, to agree that there is anything in the wording of section 124‑A of the Penal Code or the explanations appended thereto which alters the situation and opens the door M for adducing evidence of the truth of the facts stated in the offending articles or speech. The question that has still to be considered is as to whether, even if the truth cannot be raised as a plea in defence in a prosecution under this section, can it be taken into consideration as a circumstance in determining the quantum of the punishment to be imposed? Learned counsel appearing for the respondent has sought to support the conclusion of the High Court that this can be done on the basis of the opinion of Dr. Sir Hari Singh Gour at page 626 of Volume I of his book on the Penal Law of India where it is stated that "truth, though not a vindication, may always be proved in mitigation of the offence." The authority cited for this view is a decision of Lord Mansfield in the case of Horne v. R. ((1778) 2 Cowp. 672). Learned counsel has also relied upon a passage from Russell on Crime, Volume I, 12th Edition at page 218, which is to the effect that "bona fide belief in the truth of the matters stated may mitigate punishment but is no defence." The authority cited by the learned Editor of this edition for this proposition is the case of R. v. Burdett ((1820) 1 St. Tr. (N S) 1), which is also reported in 22 Revised Reports, page 538 sub. nom. The King v. Sir Francis Burdett. This view, however, does not appear to find any support from any other learned author. In Halsbury's Laws of England, 3rd Edition, Volume 10, page 572, it is clearly stated that "if words spoken or published are seditious, it is no defence that they are true and evidence to prove their truth is inadmissible." Similarly in Harris's Criminal Law, 20th Edition, page 84, it is said that "if language is seditious it is no defence that it was in fact true." In Archbold's Criminal Pleading, 24th Edition, page 1226, para. 3165, it is stated as follows:‑ "The prisoner is in no case allowed to prove the truth of a seditious libel, in justification of his having published it. The Libel Act, 1843, section 6 (Post Article 3622) permitting a plea that a libel is true and its publication in the public interest, applies only to defamatory libels and not to seditious or blasphemous libels: R. v. Duffy 6 St. Tr. (N S) 303; R. v. Aldred 74 J P 55(a). In R. v. Burdett 1 St. Tr. (N S), it was held that on an indictment for a seditious libel containing statements involving criminal charges, the prisoner could not at the trial or in mitigation prove their truth; but that he could after verdict in mitigation prove that he had read them in newspapers." In Ratanlal on the Law of Crimes, 20th Edition, all that is aid at page 308 is that "if certain alleged facts are used as a peg on which to hang seditious comments the truth of the facts does not excuse the seditious commentary." The High Court has also relied upon an observation of Shabir Ahmad, J.; of the Lahore High Court in the case of State v. Abdul Ghaffar Khan (P L D 1957 Lab. 142), wherein it was observed that "if, however, what is stated is true, the fact may be a mitigation of the offence." But no authority was cited for this view nor was any reason given. I have carefully read the judgments in the case of King v. Sir Francis Burdett but I can find nothing therein to support the proposition laid down in Russell on Crime. In that case a new trial was sought upon, inter alia, the ground that at the trial the Court had disallowed evidence of the truth of the facts alleged but apart from a passing observation in the judgment of Holroyd, J., at page 565 of the Revised Reports there is nothing in these judgments which even remotely supports this view. What was said by Holroyd, J., was to the following effect: "With respect to the objection of the learned Judge's refusing to receive evidence of the truth of the facts alleged, or rather assumed in the libel, there is, I think, not the least doubt upon the point. Although the objection was made, it was not even attempted to be supported by argument at the trial. Whatever might be the result of a due enquiry into those facts elsewhere, it is clear that that was not the proper place or occasion for enquiring into them, nor would the writing be otherwise than, in law, a libel. It assumes, as true, a statement most highly calumnious on individuals and on the Government, merely from a statement in a public newspaper and without the knowledge, whether it were true or not, to any or to what extent and indulges in the highest strain of invective, for the purpose of inflaming the public and raising in their minds the greatest discontent, disaffection and alarm. That is, in itself, a seditious libel and the question for the duty was, whether what the defendant had written and published, with the intent stated in the information, was a libel or not and not to what extent it was so; even supposing that the result of that enquiry would have been any palliation of the libel." (The underlining* is mine). This was not an ennunciation of any legal principle but merely an hypothetical assumption. The decision was actually to the contrary as pointed out in Archbold's Criminal Pleading. In this case too Horne v. Rex was cited as an authority to show that such evidence had, in fact, been admitted by Lord Mansfield but Abbott, C. J., pointed out at page 592 of the same Reports that: "Upon looking into that case it appears that Mr. Horne who conducted his own defence did not open his evidence‑to the jury, as usual, but sat down without proposing to call any witnesses; and when he afterwards proposed to call some and the Attorney‑General objected, Lord Mansfield said, `you had better not object; you had better hear his witnesses.' And they were accordingly examined. Such an instance can, in my opinion, be of no avail against the current of prior and subsequent practice; it certainly can be of no avail against the opinion of the Judges, delivered in 'the House of Lords, in answer to a question on this particular point, propounded to them by the House on the occasion of the passing of the Statute 32 Geo. III, c. 60, commonly called the Libel Bill; and the still more important fact that the Legislature having its attention directed to this subject at that time, left the law in this respect in the situation wherein the Judges reported it to stand." In the case of Horne I further find that the evidence that was sought to be adduced was that those whom he was indicted to have libelled were not the King's troops. This evidence was thus admitted only to remove an ambiguity, namely, as to whether the persons said to have been libelled were in fact the King's troops. In any event, since the accused in that case was conducting his own defence it may well be that Lord Mansfield did not like to refuse him permission to call his evidence. Indeed, it would appear from the observations of the learned Judges who decided the case of the King v. Sir Francis Burdett that Horne himself did not in fact insist on‑Proving the truth of the libel. It would appear, therefore, that there is no authority to support the proposition that evidence of truth can be adduced N even in mitigation or palliation of the offence. In Sir Prancis Burdett's case it was held to the contrary. The fact that he was, according to the paragraph quoted above' from Archbold's Criminal Pleadings, permitted after verdict to lead evidence to prove that the incidents assumed in the libel to have taken place at Manchester were gathered by him .from newspaper reports is not the same thing as being permitted to prove the truth of the libel in mitigation. I regret, therefore, that I am unable to accept the proposition that even under the English Law the truth of the matter referred to in the offending article or speech can be adduced in evidence in mitigation of the offence after the verdict. Under the procedure followed in the Courts in this country there is no scope for adducing evidence after verdict accept in a case where by reason of a previous conviction the accused is liable to enhanced punishment or to punishment of a different kind for the subsequent offence. In these circumstances, to permit evidence of the truth to be adduced at the trial, even in mitigation of the offence, would really amount to leading in evidence of truth at the trial even though it is irrelevant for the a purposes of deciding. whether the offence has been committed or not. Apart from this if the gravamen of the offence lies in the effect that the words uttered or written are calculated to produce on the minds of the listeners or readers then I fail to appreciate how the truth or falsity of the facts referred to in the speech or article can be relevant for determining the quantum of the punishment. Will not the gravity of the offence depend upon the gravity of the harmful effect the speech or article is calculated to produce and will not this in its turn depend upon the nature of the language used, the time or occasion or place at which it is used, the type or class of persons to whom it is addressed or among whom it is circulated, the status and position of the person using such language, the extent of the publicity given to it, the gravity of tale consequences that are likely to ensue or have actually ensued and the circumstances in which the offending speech came to be made or the article published? If so, then how is the truth or falsity of the facts referred to in the speech relevant? I am, therefore, unable to agree that such evidence of truth is admissible at all either upon general principles or by reason of anything contained in section 124‑A of the Penal Code. Whether a comment is fair or not, or whether it was P made with the intention of bringing about a change in governmental policy or action by lawful means, would depend upon the language used in the offending article or speech and not upon the truth or falsity of the facts commented upon. Finally I am of the opinion that in the present case there was yet another good reason why the evidence of truth should not have been admitted. . The prosecution, as I have already pointed out, had not alleged either in the petition of complaint or in the charge that the facts stated by the respondent were untrue. The truth of those facts was, therefore not put in issue Q at all. The question of its proof did not in the circumstances arise. Even learned counsel appearing for the respondent was forced to concede that if it is not alleged by the prosecution that . the facts are incorrect, then the defence may not be called upon to establish the contrary. That this is the position even in cases under the Press Act was made clear by Munir, J., (as he then was) in the case of In re: Nawa‑i‑Waqat Daily. This decision was also approved in the case of Sher Muhammad v. The Crown and it was held that since the facts were not controverted they must be accepted as correct. I do not see why the position should be any different in the case of a trial under section 124‑A. If the prosecution does not allege that the facts are incorrect they must be accepted as correct and the Court should proceed to decide, assuming that the facts referred to in the speech a re correct, whether the speech is capable of having the harmful effects which come within the mischief of this section. For these reasons I would allow this appeal, set aside the order of the High Court and restore that of the Special Magistrate. MUHAMMAD ‑YAQUB ALI, J.‑For the reasons given in the penultimate paragraph of the judgment proposed to be delivered by my learned brother Hamoodur Rahman, J., I agree that the appeal be allowed. It was not part of the accusation against the respondent that the facts stated by him were untrue. There was thus no occasion for him to prove those facts. In this view I would reserve my opinion on the larger question whether the S truth of facts stated in a seditious speech can at all be pleaded as a defence in a trial under section 124‑A of the Pakistan Penal Code. K. B. A. Appeal accepted.