P L D 1961 (W (PLP)

2. The Amalgamated Press, Sialkot, has been working for some years and it appears that on the 17th of January 1956, an order was passed by the Provincial Government that as an article, which appeared in the Urdu bi‑Weekly Durr‑e‑Najaf dated the 1st of June 1955, which was printed by the Amalgamated Press, Sialkot, contained matter which was objectionable, the press should put in security in the sum of Rs. 500 under section 3 (3) of the Act. It is this security of Rs. 500 about which the order of confiscation which is under consideration has been passed.

3. I have already indicated that it is on the basis of some parts of the editorial which appeared in Sahira, a paper of Sialkot, dated the 28th of October 1959, that the impugned order was passed. The part to which objection has been taken by the Government was contained in the notice served on the petitioner, The translation in English of this part of the editorial is as follows : "My friends, you are Yazids. Yes, you are Yazids. It is you who ,kept away water from the greatest personality of the world. You have made life impossible for me. You are the wolves who staged Karbala and now mourn Imam Husain (Peace be on him). My friends, you need a Halaku Khan, a brutal Halaku Khan, who might be able to create bubbling oceans of blood in a minute ; just a sign from whose eye‑brows should result in the spectacle of beheaded heads creeping on roads, and then guffaws of my laughter should dive into the ocean of blood and emerge. Then I would tell you that it was the result of your own planning." The cartoon which appeared at page 12 shows a middle‑aged hearded man ‑ busy in watwani near a thoroughfare over which a number of women are passing. Under the cartoon is a writing the translation of which to English is as follows : "How much better it will be if Maulvis (learned men of religion) were to instruct that this habit should be restricted to the bathrooms only. Although I am aware of the results of uttering slogans of truth, yet I have to speak out the truth even today."

4. In order to follow the arguments addressed during the hearing it is necessary to know the relevant provisions of the Act, which I might mention has been recently repealed by the Press Publications Ordinance, 1960 (No. XV of 1960) which was promulgated by the President of Pakistan on the 26th of April 1960. Notwithstanding the repeal of the Act, the law applicable to this case would be the provisions of the Act and ‑ not those of the newly‑promulgated Ordinance. Section 3 of the Act is in the following terms : "(1) Any person keeping a printing‑press who is required to make a declaration under section 4 of the Press and Registration of Books Act, 1867, may be required by the Magistrate before whom the declaration is made, for reasons to be recorded in writing, to deposit ‑ with the Magistrate within ten days from the day on which the declaration is made, security to such an amount, not being more than one thousand rupees, as the Magistrate may in each case think fit to require, in money or the equivalent thereof in securities of the Central Government as the person making the deposit may choose : Provided that if a deposit has been required under sub-section (3) from any previous keeper of the printing‑press, the security which may be required under this subsection may amount to three thousand rupees. (2) Where security required under subsection (1) has been deposited in respect of any printing‑press, and for a period of three months from the date of the declaration mentioned in sub section (1) no order is made by the Provincial Government under section 4 in respect of such press, the security shall, on application by the keeper of the press, be refunded. (3) Whenever it appears to the Provincial Government that any printing press kept in any place in the territories under its administration, in respect of which security under the provisions of this Act has not been ,required, or having been required has been refunded under subsection (2), is used for the purpose of printing ,or publishing any newspaper, book or other document containing any words, signs or visible representations of the nature described in section 4, subsection (1), the Provincial Government may, by notice in writing to the keeper of the press stating or describing such words, signs or visible representations, order the keeper to deposit with the Magistrate within whose jurisdiction the press is situated security to such an amount, not being less than five hundred or more than three thousand rupees as the Provincial Government may think fit to require, in money or the equivalent thereof in securities of the Central Government as the person making the deposit may choose. (4) Such notice shall appoint a date, not being sooner than the tenth day after the date of the issue of the notice, on or before which the deposit shall be made." The order of the Provincial Government dated the 17th of January 1956, by reason of which the petitioner had deposited security for Rs. 50, was clearly passed under subsection (3) of section 3 of the Act. An order of confiscation of security is contemplated by section 4 of the Act which, inter alia, gives, the grounds on which the security deposited by a printing press may be forfeited. Mr. M. Anwar, Advocate‑General, West Pakistan, who appeared for the Provincial Government to oppose the petition, said that if any part of the editorial in question fell within section 4 of the Act and not necessarily under clauses (a) and (d) of the section which were invoked in the impugned order, the petition should be dismissed.

5. Mr. Ansari, learned counsel for the petitioner, urged that as the order for the deposit of security of Rs. 500 had been passed with regard to the paper Durr‑e‑Najaf, the security could not be forfeited for anything which appeared in any other paper and, therefore, the impugned order of the Provincial-Government should be vacated on that short ground, and it was not necessary to consider whether the order was justified. This contention is entirely without force. Section 3 of the Act deals with security, etc., to be put in by printing presses. There is no law in force which says that a press can print only one paper and it is manifest that if security had been put in by a press, it can be forfeited if the press print any matter hit by section 4 of the Act notwith standing the fact that the matter was printed in a document g entirely different from the one on the basis of which the original order of deposit of security was passed. The provisions which would govern the matter if the case related to a newspaper were contained in sections 7 to 10 of the Act, while the provisions relating to printing presses were contained in sections 3 to 6, of the Act.

6. The main question that falls for determination is whether the impugned order of the Provincial Government was justified. The learned Advocate‑General urged that the editorial in question should be read as a whole to determine this question and added that some portions of the editorial would attract the provisions of section 4 of the Act. I have mentioned already that the impugned order of the Provincial Government was to the effect that part of the editorial mentioned in that order, which have been reproduced in paragraph 3 of this judgement, were hit by clauses (a) and (b) of section 4 of the Act, This being the position taken up in the order, the Court has to determine whether the portion, of the editorial to which exception has been taken, was open to exception. If it becomes necessary to advert to any other part of the editorial to resolve an ambiguity in the part that has been made the basis of the impugned order, this use of the other part of the editorial would be permissible but if the part on which the action was taken is not ambiguous in any respect, the Court cannot refer to any other part of the editorial to see whether: the impugned order could not have been justified if that other part had been made the basis of the order. Whether or not the action mentioned in section 4 of the Act should be taken on the basis of a writing is for the Government to decide and as it is for the Government to take action or not to do so, it is not open to the Court to say that because the order would have been justified if the Government had used any other part of the writing in question to base its order on, : rw ,,:fore. the order suffered from no defect in spite of the .fact drat the part of the writing on which action by the Government was based did not fall within the mischief of. the law. The position might. however, have been different if the Provincial Government had based its impugned order on the entire writing in question because in that case, as held by a Full Bench of this Court in the Punjab Religious Book Society,, Lahore v. The State (P L D 1960.Lah. 629). any part of the writing could have been relied upon to support the impugned order. Consequently, I cannot accept the contention of the learned Advocate‑General that the entire editorial of the Sahira dated the 28th of October 1959 should be seen for determining whether the impugned order was justified. .

7. Nor can I accept the contention of the learned Advocat e General that though the port of the writing in question, specified in the impugned order of the Provincial Government, may not attract clauses (a) and (b) of section 4 of ,the. Act, which according to the impugned order were attracted, the order could not be set aside if any other part of section 4 of the Act could be shown to be applicable. The Provincial Government having taken the position that clauses (a) and (b) were applicable, it is nor open to the Court to hold that as the order of the provincial Govern ment could have been passed under some other clause of section 4 of the Act it must be upheld though it did not fall within the clause or clauses of the section mentioned in the othe under consideration. This interpretation of the law has to be given in view of the decision of their Lordships of the Federal Court of Pakistan in The Working Muslim Mission and Literary Trust Lahore and the C & M G Ltd. Lahore v. The Crown(P L D 1956 F C 209) wherein they held that if the Provincial Government had invoked one part of section 99‑A of the Code of Criminal Procedure for passing an order about a book the Court could not uphold the order if the part of the section relied upon by the Provincial Government was not applicable though some other part of the section was. The case before their Lordships was, no doubt under a different provision of law, but in principle the present case is in no way different from the case decided by them.

8. The learned Advocate‑General contended that the part of the editorial in question which had been made the basis of the impugned order was within the mischief of clause (a) of section 4 of the Act, but the contention cannot be accepted. Clause (a) of section 4 of the Act can be invoked by the Provincial Government if the printing press had been used for printing a document which contains matter which incites, encourages or tends to incite to or to encourage the commission of any offence of murder or any cognizable offence involving violence. There is not a single word in the passage in question which even remotely incites or encourages or .tends to incite or encourage the commission of any of the offences mentioned in clause (a) of subsection (1) of section 4 of the Act because the writer has not hinted even obliquely that the persons at whom his tirade is directed should be assaulted. No doubt the passage says that the persons addressed therein deserve to have a Halaku Khan to set them right but as the writer is praying for a perpetrator of massacres on a collosal scale for the reason that persons he has addressed have treated him shabbily, his writing could be held to be an incitement to commit assaults if there were proof that the writer had a large following, members of which would be prepared to practise what he preaches, of which proof there is a complete absence. The passage following the one under consideration does contain objectionable matter but as that passage deals with a subject in no way connected with the one under consideration, it cannot be availed of by the learned Advocate‑General in the present proceedings.

9. The learned Advocate‑General next urged that, as it was likely to create hatred against the Government in Pakistan, the passage under consideration fell within the mischief of clause (d) of subsection (1) of section 4 of the Act. I cannot accept this contention because the Government has not been brought into the discussion' even once, and indeed if the editorial is read as a whole, which it would be permissible to do for finding out the intention of the writer, it is apparent that the writer was addressing in some individuals who he thought had been treating him shabbily and whose wives, according to the passage following the one under consideration, accept him with open arms as a lover. It is clear from the other parts of the issue of the paper in which the editorial appeared that the paper had a pro‑Government policy, and as the passage under consideration has not said or even insinuated anything against the Government in Pakistan it cannot be held that the writer was addressing the Central or a Provincial Government in Pakistan in the passage under con sideration. I would, therefore, hold that the order of the Provincial Government in so far as it related to a part of the editorial that appeared in the issue of the bi‑Weekly Shira of Sialkot dated the 28th of October 1959, was not justified.

10. I will now take up the consideration of the cartoon of which I have given a description in paragraph 3 of this judgment. The learned Advocate‑General frankly conceded 'that clause (d) of subsection (() of section 4 of the Act could not be invoked with regard to the cartoon and the writing underneath it but contended that clause (a) of the subsection could not be said to be entirely inapplicable. The method adopted by the learned Advocate‑General for bringing the cartoon and the writing underneath within the four corners of clause (a) of subsection (1) of section 4 of the Act was somewhat tortuous. He had to admit that many a right‑thinking person has described the practice depicted in the cartoon as highly objectionable on the ground that decency requires that the act of watwani should be carried out in privacy and not in public and certainly not in the view of women, but contended that the maulvis were likely to get inflamed against the writer to the extent of resorting to assaults on him because the writer would appear to be holding them responsible for the practice of watwani on public streets. This approach to the question is much to uncommon to be acceptable. The practice of watwani in public which is no doub practised by some persons is clearly objectionable and if the writer calls the attention of the maulvis to it so that they may exert their influence to discourage it no reasonable maulvi can start an assaulting campaign against the writer. It may be that some oversensitive maulvi or one having an unhinged mind may resort to violence against the person responsible for the 4 publication of the cartoon in question and the caption under neath it holding it to be an attack on the maulvis, but as I am of the view that it is not permissible to take the reactions of a highly sensitive or a sub‑normal person into consideration when the Court has to determine whether a thing is likely to have a certain result, the question cannot be considered in the way that the learned Advocate‑General would have it considered.

11. In view of what I have said above, I hold that neither of the two things mentioned in the impugned order of the Provincial Government justified the order passed regarding forfeiture of the security put in by the petitioner and would set aside the order of forfeiture. The order of forfeiture of the security of Rs. 500 having been vacated, the order calling upon the petitioner to deposit a security of Rs, 3,000 would automa tically fall because it was incidental to the first order. I would further direct that the petitioner will have his costs of the petition from the Provincial Government. KAYANI, C. J. ‑I agree. ABDUL AZIZ KHAN, J.‑I also agree. A.H. Order set aside.