P L D 1961 (W (PLP)

2. The petitioner is an old man of 78 years and claims that since 1908 he has devoted his life to the service of national cause and was the paid assistant secretary of the All India Muslim Educational Conference from 1908 to 1921 when he was drawn into the Khilafat Movement by the Ali Brothers with whom he remained associated till 1928 and edited the Urdu daily "Hamdard" of Moulana Muhammad Ali. and thereafter he exclusively devoted himself to study and research. He compiled the History of Amroha in four volumes and was responsible for writing another book "Haqiqat‑i‑Qaum Kamboh" and a comment upon the well known book "Nihaj‑ul‑Balagh". He further claims that the book in question is essentially a work of research dealing with history and an analytical narration of happenings in the light of the original sources and the old works of repute ; that the book, which covers 368 pages, contains as many as 300 pages of quotations and citations from the well known old historians and jurists and from the original sources. He asserts that he has as much respect and reverence for the personages of Muslim History as any Muslim should have and that nothing would be farther from truth than to allege any wrongful or ill intention against the author for compiling the work in question. The order is further challenged for the reason that it does not give the ground for forfeiture, nor does it specify the class or classes that might be brought into hatred or between whom the publication is likely to promote the feeling of hatred. It is asserted that the order is unwarranted both on facts and law.

3. A counter‑affidavit has been filed on behalf of the Administrator of Karachi by the Assistant Public Relations Officer, Administrator's Secretariat, opposing the petition. I would like to reproduce certain portion of this affidavit which is relevant to the discussion which follows:‑ "That the order of forfeiture is just and bona fide and in terms of section 99‑A, Cr. P. C. as the text of the book in question clearly comes within the purview of section 153‑A, P. P. C. It seems that the book in question was deliberately written and published to create hatred between Shias and Sunnies sections of Muslim community in Pakistan and Federal Capital, Karachi . . . . . . The order in question does state the ground of forfeiture and is in accordance with the provisions of section 99‑A, Cr. P. C. . . . . . this book hurt the feelings of the faith of Shia Sect and they protested against the continuance of the circulation of this book and in fact even Sunni Ulemas did so." With regard to the various claims made in the petition it was said that they were not in the knowledge of the opponent but even if it was assumed that the work in question contained certain research on the basis of some historical facts the publication could lead to unending controversy and in fact as a result of this work controversy arose which led to the forfeiture. This counter affidavit was filed on 16th January 1960 and on the 29th the petitioner filed an affidavit in rejoinder, complaining that the counter‑affidavit filed on behalf of the Opponent was vague and that it did not set out any portion or portions of the book in question which were alleged to offend against law. The illegality of the order was reiterated. No further affidavit was filed on behalf of the Administrator and no attempt was made to quote the offensive passages.

4. This case came up for hearing before the Special Bench on 7‑11‑60 when Mr. A. Aziz appeared for the petitioner in support of the petition and Mr. Haleem appeared for the Adminis trator having received the brief from the office of the Additional Advocate General.

5. Mr. Aziz contended that the order of forfeiture was liable to be set aside on the ground that it was not in accordance with law and was bad on the face of it. With regard to the merits he stated that he did not know as to what passages in the book were found objectionable by the opponent and, therefore, he was not in a position to satisfy the Court that the book did not contain any such matter as is referred to in subsection (1) of section 99‑A. Mr. Haleem for the opponent frankly stated that the file of the case from the Administrator's office did not contain reference to any particular passage. His discomfiture was obvious and was one with which one could not but sympathise, because if he cited passages from the book which he considered to be offensive that would have been his opinion and not the opinion of the Provincial Government, which was the Administrator in this case. He also therefore preferred to have the case decided on the technical round urged on behalf of the petitioner without going into the merits of the book.

6. I will now proceed to examine the question whether the order of forfeiture is not according to law and is bad on the face of it and the further question whether on that ground it is liable to be set aside in these proceedings. The relevant portion of the order upon which the ground of illegality is based is:‑‑ "The book . . . . . . entitled Khilafat‑e‑Maaviah wa Yazid bin Maaviah . . . . . . . contains matter which is likely to create hatred between different people of Pakistan". Now section 99‑A, Cr. P. C. provides that where any book appears to the Provincial Government to contain any treasonable or seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of His Majesty's `subjects (Citizens of Pakistan) or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter, the publication of which is punishable under section 123‑A or section 124‑A or section 153‑A or section 295‑A of the Pakistan Penal Code, the Provincial Government may, by notification in the official Gazette, stating the grounds of its opinion, declare every copy of such book to be forfeited. It follows that in order that the provision ‑ of section 99‑A be attracted the book or the document in question must come within any of the categories stated in that section. In the present case it purported to come within the mischief of section 153‑A, namely, that it promoted or was intended to promote feelings of enmity or hatred between different classes of citizens of Pakistan. But the order does not say so. It speaks of hatred between different people of Pakistan. "Different people" does not mean different classes within the meaning of section 153‑A A the material portion of which has been reproduced in section 99‑A Criminal Procedure Code. For instance, if a book promotes feelings of enmity or hatred between different people of the same class that would not come within the mischief of section 153‑A, Pakistan Penal Code. The expression "classes of His Majesty's subjects" as used in section 153‑A of the Code was examined by a Bench of the Bombay High Court in the case of N. V. Phadke v. Emperor (A I R 1940 Bom. 379). In that case the accused had been convicted under section 124‑A and section 153‑A of the Penal Code. He had delivered a speech which, it was contended by the Crown, was intended to promote hatred between the peasants on the one hand and the Sawkars and landlords on the other. It was held in that case that:‑ "The expression "classes of His Majesty's subjects" in, section 153‑A of the Code is used in a restrictive sense as denot ing a collection of individuals or groups bearing a common and exclusive designation and also possessing common and exclusive characteristics which may be associated with their origin, race' or religion, that the term `class' within that section carried with it the idea of numerical strength so large as could be grouped in a single homogeneous community." The accused in that case was held not guilty under section 153 A as Sawkars or landlords could not be said to constitute a class within the meaning of section 153‑A. Beaumont, C. J. at page 381 observed as follows:‑ "There are difficulties in saying that landlords who let out their land at a rent constitute one class, and the persons to whom the land is let out another, because obviously people might come into both classes in respect of the same land. If A lets land to B, and B sub‑lets to C, B is a tenant taking the land on rent and landlord letting it on rent, and it is difficult to think that the classes referred to in section 153‑A are not mutually exclusive." I am in respectful agreement with the view taken in the above case.

7. And in the present case when the Administrator acting as a Provincial Government said that he was satisfied that the book contained matter which was likely to create hatred between different people of Pakistan, I do not find it possible to hold that "different people" in the order means the different classes which had to be the case in order to be punishable under section 153‑A, P. P. C. That the expression "different people" was deliberately used by the Administrator find support from a statement in the counter‑affidavit that even the Sunni Ulemas protested against the continuance of the circulation of this book. It is true that in the counter‑affidavit Mr. Qadri has stated: "it seems that the book in question was deliberately written and published to create hatred between Shias and Sunnies sections of Muslim community in Pakistan" but in the first place it is the order itself which must contain the ground of forfeiture and not the affidavit filed in support of that order, and even in the affidavit all that is said is that the purpose of the writing of the book seemed to be to create hatred. We also do not know whether this is the opinion of the Administrator or of Mr. Qadri who swore the affidavit, or of the person who drafted the counter‑affidavit. In fact, this counter affidavit is most vaguely worded on material points. For instance, in answer to definite allegation in para. 3 of the petitioner's affidavit that the publication in question had neither been seen nor read by the local Government, nor was any opinion on merits formed before the issue of the order of forfeiture, all that the counter‑affidavit says in para. 3 is as follows:‑ "The book in question was not only seen and read properly by the authorities of Karachi Administration but was a subject- matter of disturbance to the Government of Pakistan." One finds it difficult to clearly see whether the opinion in the present case was of the `authorities' of Karachi Administration, and we do not know what precisely is intended by the expression `authorities', or that of the Central Government. I do not propose to pursue this any further because of the view that I have taken that the ground of the order, on the face of it, is not covered by the provisions of section 153‑A, P. P. C. and I am further of the o view clearly that defect cannot be cured by what is said in the counter‑affidavit.

8. The next point which though it was not pressed at the hearing by the learned Government advocate who agreed with the view that the order was bad in so far as it did not speak of classes, must still be considered as it relates to the question of jurisdiction. The ‑point arises from the wording of section 99‑B according to which an application lies to the High Court to set aside the order of forfeiture on the ground that the book etc. did not contain any treasonable or seditious or other matter of such a nature as is referred to in subsection (1) of section 99‑A, Cr. P. C. And section 99‑D provides that the Special Bench shall, if it is not satisfied that the issue of the book etc. In respect of which the application had been made, contained treasonable or seditious or other matter of such a nature as is referred .to in subsection (1) of section 99‑A, set aside the order of forfeiture. The question that arises is whether an order can be set aside without a finding on merits that the book in fact did not contain any matter of such a nature as is referred to in subsection (1) of section 99‑A.

9. In the case of the Woking Muslim Mission, etc. v. Crown (P L D 1956 F C 209), a book entitled "Jesus in Heaven on Earth" written by Khawaja Nazir Ahmad was forfeited under section 99‑A and the ground of the forfeiture given by the Provincial Government was that the publication of the book was punishable under section 295‑A A) P. P. C. and thus came within the mischief of section 99‑A of the Criminal Procedure Code for the purpose of forfeiture. The roe Special Bench of the High Court which heard the matter came to the conclusion that the petitioner's contention, that the publication was not punishable under section 295‑A, was well founded, but they thought that this was not sufficient to enable him to obtain an order to set aside the forfeiture unless he further showed that the publication was also not punishable under any of the other three sections, namely, 123‑A, and 124‑A and 153‑A of the P. P C. Upon the examination of the offending passages they took the view that the publication was punishable under section 153‑A and, therefore, the order of forfeiture could not be set aside: Against this the petitioner went in appeal to the Federal Court, and urged that the forfeiture was liable to be set aside as the ground given in the notification did not warrant the order complained of. The Federal Court accepted this contention and allowed the appeal and set aside the order of forfeiture. I cannot resist the tempta tion of quoting certain passages from the judgment of Monir, C. J. with whom the other Judges agreed. After quoting the provisions contained in section 99 A, B, D and G of the Criminal Procedure Code the learned Chief Justice observed:‑ "It will be noticed that under section 99‑A it is the opinion of the Provincial Government on the basis of which an order of forfeiture can be passed and that when the Provincial Govern ment decides to forfeit a publication it has to state the grounds of its opinion. Section 99‑B which gives to the aggrieved person a right to apply to the High Court must be read as referring back, as it expressly does, to the proceedings taken under section 99‑A . . . . . . Now since the opinion of the Provincial Government is the determining factor in section 99‑A, and that opinion is made by that section to rest on certain grounds, the aggrieved party is only concerned to show that the opinion of the Provincial Government together with the ground on which it is based is incorrect and on general principles there should be no onus on the applicant to prove the further negative that the book does not contain any matter punishable under any other section not relied upon by the Provincial Government while ordering the forfeiture. A contrary construc tion of section 99‑B will not only be unreasonable but may lead to absurd results . . . . . . An order under section 99‑A being an administrative or executive order, if section 99‑B were interpreted to mean that the applicant is to show not only that the grounds on which such order was made were wrong but also that the work did not contain any matter in respect of which the Provincial Government did not consider it expedient to take action, the interpretation will not only be inconsistent with general principle but will also give to the High Court executive powers which are expressly vested in the Provincial Government under section 99‑A." The conclusion was summed up as follows:‑ `‑`Thus the more reasonable interpretation of section 99‑B E and 99D is that the aggrieved party can move the High Court only on the ground that the reasons for which the Provincial Government made the order were bad and that if the High Court finds that the ground stated for the forfeiture was erroneous, the order must be set aside and it would be unreason able to ask the applicant to show that the order could not be sustained on other grounds which were either not present toe the mind of the Provincial Government or which it did not consider to be expedient to act upon."

10. Let me now consider the order of the Administrator in the light of the above observations. The ground upon which the Administrator took action and ordered forfeiture in this case was that the book "contained matter which is likely to create hatred between different people of Pakistan". I have already come to the conclusion which has been set out earlier that this ground is not covered by the provisions of section 153‑A, P. P. C. and it must therefore follow that an order of forfeiture under section 99‑A could not be based upon it: In the present case, since the ground of forfeiture given by the Administrator himself does not fall within the ambit of section 99‑A, the order cannot be sustained, and as was held by the Federal Court it cannot then be asked of the High Court to discover in the book some material which might offend against any one of the sections of P. P. C. mentioned in section 99‑A for the purpose of justifying the order of forfeiture. If we‑did so it will be our opinion and not of the Administrator on whose opinion and the ground thereof the order of forfeiture must be based. If we were to hold otherwise, we would be driven to most absurd and impossible positions. For instance, if the Administrator was to order the forfeiture of a book on the ground that its publication was likely to cause breach of peace amongst the people of Karachi and Pakistan, a matter which did not come within the purview of section 99‑A, we would still have to go through the book for the purpose of finding out negatively that the book did not contain any matter of such a nature as is referred to in subsection (1) of section 99‑A. It is obvious that this could not have been the intention of the Legislature.

11. For the reasons given above, I hold that the ground stated by the Administrator for the forfeiture of the book entitled "Khilafat‑e‑Maaviah Wa Yazid" is bad and must, therefore, be set aside. I would order accordingly. I would also order the opponent to pay to the petitioner the costs of the petition. WAHIDUDDIN, J.‑

I concur with Farooqi, J. INAMULLAH, J.‑

I agree. K. B. A. Order set aside