P L D 1966 (W (PLP)

WAHIDUDDIN AHMED, J.‑

This is a petition under section 45 of the Press and Publications Ordinance, 1960. The facts leading to it may be briefly stated.

2. The petitioner is the author of the book by the name of "Khilafat‑e‑Mauvia wa Yazid", which has been forfeited under section 36 of the Press and Publications Ordinance, 1960, by order of the Governor of West Pakistan, dated 6th February 1963, published in the extraordinary issue of the Gazette of West Pakistan Lahore, dated 20th February 1963. The Notification is to the following effect:‑- "Whereas, the Governor of West Pakistan is satisfied that the book entitled `Khiiafat‑e‑Mauvia wa Yazid bin Mauvia' by Mahmood Ahmad Abbasi, published by him from Kashana‑e -Mahmood 1/26‑B Area Lalukhet, Karachi‑19 and printed in Mashoor Offset Press, Karachi contains matter at pages 3, 4, 7, 8, 19‑21, 31, 53, 60‑81, 89, 97‑105, 111, 179‑180, which is likely to create or excite feelings of enmity, ill‑will and hatred between two sects of the citizens of Pakistan, namely Shias and Sunnis; And, whereas the above writings of the said book fall within the meaning of clauses (i) and (j) of subsection (1) of section 23 of the Press and Publications Ordinance, 1960. Now, therefore, in exercise of the powers conferred on him by section 36 of the said Ordinance, the Governor of West Pakistan is pleased to declare all copies and all other editions or re‑prints of the said book to be forfeited to the Government." It will be noticed that the respondent Government has taken objection to certain passages in the said book on the ground that they are likely to create or excite feelings of enmity, ill‑will and hatred between two sects of the citizens of Pakistan, namely Shias and Sunnis.

3. The respondent Government has opposed the petition. Their case is that the subject discussed is highly controversial and the entire theme of the book is objectionable and likely to spread sectarian hatred, The reasons which led the Government to forfeit the book in question are contained and discussed at length in the affidavit of Mr. Mahmood Ahmed Rajput, dated 23rd November 1963. For proper appreciation of the Government case it will be useful to reproduce the relevant portions of his affidavit which are as under:‑-- "Para. 7.‑That para. 4 of the petition is denied. It is submitted that portions of the book justify and praise the Khilafat of Hazrat Amir Mauviah and his son Yazid and also give a version of the tragedy of martyrdom of Hazrat Imam Hussain different from or even diametrically opposed to that of Shias and while doing so the petitioner has resorted to comparisons and has expressed views which have the effect of running down the personages held in high esteem by the Shias such as Hazrat Ali and Hazrat Imam Hussain. It is denied that the book is not likely to create feelings of hatred, ill‑will or enmity between the Shias and Sunnis. That the contents of para. 5 of the petition are denied as alleged. It is further submitted that the justification .for editing the book is irrelevant for the purposes of determining the matter in issue, and the order of forfeiture is a perfectly valid order and cannot be challenged on the grounds mentioned in the petition. (8) That pages 3, 4, 7, 8 and 31 of the book contain matter which has the effect of running down Hazrat Ali while drawing comparisons with the three preceding Caliphs. Reference has been made to Hazrat Ali at pages 3 and 4 of the book m disparaging terms by giving prominence to the fact that while during the period of the first three Caliphs, the `Ummat' was behind them and big countries were conquered, there was neither any 'Jehad' nor any conquest during Hazrat Ali's Khilafat and instead there were wars amongst the followers Islam further at pages 3 and 7 of the book there are references to the effect that the 'Sabis' (who were inimical towards Islam) were successful in making Hazrat Ali do whatever they wanted and further at pages 31 there is a mention of the fact that Hazrat Ali had not performed any Haj and had not acted as the Amir of Haji as he had left Madina and made Koofa the seat of his Khilafat while both Hazrat Amir Mauviah and Yazid had performed Haj and the functions of Amir Haj during the periods they had remained Caliphs. These references at pages 3, 4, 7, 8 and 31 run down the personality of Hazrat Ali who is regarded in high esteem by the Shias. Any remark irrespective of any historical background is likely to offend the feelings of Shias and would be a ground covered by the Notification for forfeiting the book. (9) That at pages 19 and 21 of the book the personality of Hazrat Imam Hussain has been run down by mentioning that he had accepted Hazrat Mauviah's Khilafat under coercion and duress but looked forward to an appropriate time for becoming a Caliph and assuming the reins of Government. Again at pages 60 to 81 due prominence has been given in the book to the fact that in consequence of the acceptance of Yazid as Caliph by all Muslims, flazrat Imam Hussain had no justification to rise against hum and in doing so and laying a claim to his own Khilafat had rather acted against the dictates of the Holy Prophet, his companions and his own near relatives. This reference is against the religious belief of the Shias and has the effect of injuring their feelings. The reference at pages 97 to 105 dealing with Hazrat Imam Hussain's Kharooj (revolt of Hazrat Imam Hussain against the Khilafat of Yazid) also be‑little and injure the religious feelings of Shias and have the same effect as mentioned aforesaid. (10) References at pages 111, 179 to 180 of the said book again refer to the conduct of Hazrat Imam Hussain in connection with his march to Koofa culminating in his martyrdom. The said references are disparaging to the personality of Hazrat Imam Hussain and also suffer from the same infirmities as mentioned therein above. (11) Reference at page 53 has the effect of arousing ill‑will amongst the Shias who hold Yazid responsible for Hazrat Imam Hussain's martyrdom. This has been referred to as 'Katal' instead of 'Shahadat'. The Shias who hold it as 'Shahadat' have been dubbed as the greatest fools". It will thus be noticed that the main reason for forfeiting the book is that at number of places it unjustly praises and justify the Khilafat of Hazrat Amir Mauviah and his son Yazid. It has discussed the conduct of Hazrat Ali and Hazrat Imam Hussain on the dispute of Khilafat in such a manner that it has the effect of running down the personages held in high esteem by the Shia sect. Besides, it gives the version of the conduct of Hazrat Imam Hussain in connection of his march to Kufa in disparaging manner. It would further appear that the effect of the impugned passages has been separately discussed in the above‑mentioned paras.

4. The petitioner's case is that the forfeited book is a work of historical research and is an attempt to present facts and events of an important period of Islamic history impartially. He contends that it is not a book of religious teaching or sectarian propaganda and its primary object is to give an analytical narration of the happenings as tapped from the original sources and old works of repute and note. It is alleged that out of 368 pages as many as 300 pages cover quotation and citation from the welt known old Historians and Jurists and as many as 90 from original sources. He pleads that the main object of the book is to bring out the salient features of the Omayyads period and to remove the prejudices and imaginable vices attributed to its founder and others. According to him the official history of the Omayyads is coloured by Abbasids feeling to such an extent that one can scarcely distinguish the true from the false. He further submitted that Hazrat Ali and Hazrat Imam Hussain are held in high esteem by him but in narrating historical events one has to give factual analysis and he has presented the historical facts in its true and correct perspective in moderate language. His plea is that the forfeited book is not such a piece or work which is likely to create or excite feelings of enmity, ill‑will or hatred between the Shias and Sunnis or have the effect of running down or disparaging any person held in esteem by any Sect of Islam.

5. Before considering the case on merits it would be helpful to consider the scope of the various provisions of law under which the respondent Government has taken action against the petitioner. The relevant provisions are contained in sections 23, 36 and 45 of the Press and Publications Ordinance, 1960. Section 23 deals with the power of the Government to close down press and forfeit its security and reads as under:‑ "23(1) Whenever it appears to the Government that any printing‑press in respect of which any security has been ordered to be deposited under section 22 is used for the purpose of printing or publishing any book or paper containing any words, signs or visible representations which, (i) tend directly or indirectly to bring into hatred or contempt the Government established by law in Pakistan of the administration of justice in Pakistan or any class or section of the citizens of Pakistan or to excite disaffection towards the said Government, or (j) are likely to create or excite feelings of enmity, ill‑will or hatred between the population of any regions or parts of Pakistan, or between different communities, sects, classes or sections of the citizens of Pakistan, or Explanation 2.‑Comments expressing disapprobation of any measures of the Government with a view to obtaining their alteration by lawful means, or of any action of the Government, administrative or otherwise, without exciting or attempting to excite hatred, contempt or disaffection shall not be deemed to be of the nature described in clause (i). Explanation 3.‑Statements and comments made without malicious intention, for the purpose of helping or advocating the progress of any Province or any region or part of Pakistan, or the furtherance of its legitimate interests, or for securing removal of any factors tending to create or excite enmity, ill will or hatred shall not be deemed to be of the nature described in clause (j )." Section 36 deals with power to declare certain publication as forfeited and is in the following terms:‑ "Where any book or paper wherever made appears to the Government to contain any words, signs or visible representa tions of the nature described in subsection (1) of section 23, the Government may, by notification in the official Gazette, stating the grounds of its opinion, declare all copies of such book or paper to be forfeited to the Government and thereupon any police officer may seize the same wherever found in Pakistan and the District Magistrate may by warrant authorize any police‑officer not below the rank of Sub‑Inspector to enter upon and search for the same in any premises where any copy of such book or paper may be or may be reasonably suspected to be." Section 45 deals with the power of the High Court to set aside an order of forfeiture and reads as under:‑-- "The keeper of a printing press who has been ordered to deposit security under subsection (1) of section 22, or the publisher of a newspaper who has been ordered to deposit security under subsection (1) of section 26, or any person having an interest in any property in respect of which an order of forfeiture has been made under section 23, section 25, section 27, section 29 or section 36 may, within two months from the date of such order, apply to the High Court to set aside such order and the High Court shall decide if the book or paper in respect of which the order was made did or did not contain any words, signs or visible representations of the nature described in subsection (1) of section 23." From a perusal of the above provisions of law it would appear that under section 36 of the Press Ordinance, wherever any book appears to the Government to contain any words, signs or visible representations of the nature described in subsection (1) of section 23, the Government may by notification stating the grounds of its opinion, declare all copies of such book to be forfeited to the Government. It is under this provision of law that the petitioner's book has been forfeited. Under section 45 of the above Ordinance, any person having an interest in any property in respect of which an order of forfeiture has been made under section 36 is entitled to move the High Court to set aside such order. In such cases the High Court has to decide whether the book in respect of which order was made did or did not contain any words, signs or visible representations of the nature described in subsection (1) of section

23. It is under this provision of law that the petitioner being the author and publisher of the forfeited book has approached this Court and challenged the impugned order.

6. The main contention of the counsel appearing for the petitioner is that every citizen has a right and liberty to form his opinion on controversial religious and historical subjects and to publish it for the benefit of others. The learned counsel conceded that mischievous abuse of this intellectual liberty would be amenable to penal censure. But he strongly contended that if the decencies of controversy are observed even the fundamentals of religion may be attacked without the writer being guilty of blasphemy. He contended that‑if the discussion of controversial question is couched in temperate language and appeal is to the head rather than to the heart, such writing cannot be considered to be offensive. The learned counsel further contended that the duty of the Courts of law is to consider the effect of the objectionable passages on a normal average reader and not on the minds of the abnormally constituted persons such as religious fanatics. In this connection the learned counsel relied on two Full Bench decisions of the Lahore High Court in the matter of Daily Ehsan (P L D 1949 Lah. 282) and Woking Muslim Mission and Literary Trust Lahore v. Crown (P L D 1954 Lah. 724) under section 4, Press (Emergency Powers) Act (XXIII of 1931). He also relied on certain passages in Starkie's Law of Libel and Slander at page 624 (1897) Edition and on the observation of Chief Justice Coleridge in Re. v. Ramsay & Foote (Cox's Cr. C Vol, XV 1882‑86 P. 231). It is not necessary to reproduce these passages because the law on the subject has been fully discussed by Cornelius, J., as he then was, in the case of the Daily Ehsan. 1n that case the Court was considering the effect o f section 4 of the Press (Emergency Powers) Act (XXIII of 1931) in respect of certain objectionable articles that were published in that paper. The provision of law under consideration in that case was in the following terms:‑ "4(1) Whenever it appears to the local Government that any printing‑press in respect of which any security has been ordered to be deposited under section 3 is used for the purpose of printing or publishing any newspaper, book or other document containing any words, signs or visible representations which tend directly or indirectly, (d) to bring into hatred or contempt His Majesty or the Government established by law in British India or the administration of Justice in British India or any class or section of His Majesty's subjects in British India, or to excite disaffection towards His Majesty or the said Government, or, (h) to promote feelings of enmity or hatred between different classes of His Majesty's subjects; the Local Government may, by notice in writing to the keeper of such printing‑press, stating or describing the words, signs or visible representations which in its opinion are of the nature described above, ‑ (i) where security has been deposited, declare such security, or any portion thereof to be forfeited to His Majesty, or (ii) where security has not been deposited declare the press to be forfeited to His Majesty, and may also declare all copies of such newspaper, book or other document wherever found in British India to be forfeited to His Majesty. 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 shall not be deemed to be of the nature described in clause (d) of this subsection. Explanation 4.‑Words pointing out, without malicious intention and with an honest view to their removal, matters which are producing or have a tendency to produce feelings of enmity or hatred between different classes of His Majesty's subjects shall not be deemed to be words of the nature described in clause (h) of this subsection". In that case the former West Punjab Government took action against the Publisher of Daily Ehsan, a Lahore daily for printing and publishing three objectionable articles and a poem. In one of the articles the writer criticized the theory known as Divine Khilafat or Imamat. He observed that in the light of modern reason and democratic conceptions the theory of Divine right as the justification of religious Hegemony is unsound and leads to pernicious results. The writer's object was to demonstrate that the belief that there is an inherent right of leadership in Islam vesting in the descendants of the Holy Prophet is unsustainable. The High Court found it on facts that the intention of the writer of that article was to contend and maintain by argument that the doctrine of Divine Khilafat vesting in the descendants of the Holy Prophet through Hazrat Ali conflicts with rationalistic and democratic views and is likely to lead to deleterious results. It further found that the instances cited for showing the bad result of this theory were couched in language from which an average reader would draw the conclusion that the followers of Agha Khan and Syedena Pir Saifuddin Tahir were misguided and that their practice favours of idolatory and superstition. In this context it was urged on behalf of the Government that the followers of the Agha Khan form a class or section and they were brought into hatred and contempt. The Court repelled that contention and held that the objectionable writing was an appeal to reason and not to passion and the language employed could not be termed as intemperate or deficient in sobriety. In that connection the learned Judges discussed the principle applicable to such cases. Cornelius, J., as he then was observed at page 295 of the report that‑ "The discussion of disputed matters of religious doctrine in the newspapers is not regulated by law, except to the extent that such discussion may give rise to one or other of the affects specified in section 4(1) of the Press Act. The article will come within the mischief if it tends to arouse feelings of enmity or hatred or contempt. Each 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 then the presumption will be to the contrary, namely, that no emotions are likely to be aroused. If at the same time the argument be of a careful nature and although persuasively yet inoffensively expressed it will be difficult to regard it as being either intended or calculated to give rise to such violent feelings as are meant by the expression `enmity', hatred and `contempt'. Any form of mere dislike is not enmity; the feeling must be one of hostility, and antagonism and ill‑will. Similarly, hatred is much stronger than mere opposition; it means aversion carried to the point at which there is a desire to injure or destroy the object of the emotion and contempt means more than regarding the object as inferior; it involves an opinion that the object is of a vile, despicable or worthless character. To arouse feelings of this kind by a writing it is necessary to write provocatively employing the arts of emphasis, exaggeration and misrepresentation so as to exclude all possibility of the action criticised being excused on any such innocent ground as mistake or misconception. The language commonly employed is immoderate, touching if it does not exceed the boundary between fair criticism and abuse and the appeal is rarely to the intellect by the processes of ratio‑cination but almost always to ignorance and prejudice. Incitement to such violents of thought may of course be prefaced by learned discourse on morals or theology, accompanied by reasonable analysis, but unless the incitement is perceptible in the writing, there can be no conclusion to that effect merely because the argument results in showing that in some respect, the activity under discussion is ill‑advised or misguided."

7. Similarly, Kayani, C. J., in the case of Woking Muslim Mission and Literary Trust Lahore v. Crown (P L D 1954 Lah. 724), recognised the right of legitimate criticism in controversial religious matters. In this connection he observed that:‑-- "Both these efforts, whether on the part of the Christian or the Muslim Missionary, however, honest are bound to hurt the feelings, of Muslims in the one case, of Christians in the other. That can be avoided. The honest preaching of a creed, however, which a man sincerely believes will lead to the salvation of humanity, being an effort worthy of emulation, the injury attendant thereon may be ignored. But a limit must be drawn somewhere and even a laudable effort knows no limits. It is the limit where controversy ends and malice begins, that is to say, where the speech or writing does not further the ends of the controversy and says a thing which could be left unsaid without injuring the controversy, or saying it, not exactly `with sweets' but with a little bitterness as can be brought to the occasion."

8. The principles that emerge from the above discussion leave no doubt in my mind that every citizen in this country has a right to express himself freely on controversial religious and historical questions. But this right must not exceed the limit of fair criticism and should not be expressed in immoderate and intemprate language. Besides, for the purpose of appreciating whether or not a particular piece of writing falls within the mischief of any penal law, it is necessary that the writing should be read as a whole in fair and liberal spirit not concentrating on isolated passages or words but endeavouring to grasp the theme and intention of the writer from the words he has employed and attempting to estimate at the same time the effect of those words and the manner of their employment upon the mind of an average reader.

9. Mr. Haleem, the learned Assistant Advocate‑General contended that the scope of section 23 of the Ordinance under consideration is much wider and has even taken away the right of fair criticism. He argued that any writing that hurts the feelings of any sect or community will fall within the mischief of section 23(i) and (j). In support of his contention the learned counsel referred to certain decisions of section 4, subsection (1) of the Indian Press Act, 1910, a comparable statute. The material portion of which is in the following terms:‑ "(1) Wherever it appears to the Local Government that any printing press in respect of which any security has been deposited as required by section 3 is used for the purpose of printing or publishing any newspaper, book or other document containing any words, signs or visible representations which are likely or may have a tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor, implication or otherwise. (c) to bring into hatred or contempt His Majesty or the Government established by law in British India or the administration of justice in British India, or any Native Prince or Chief under the suzerainty of His Majesty, or any class or section of His Majesty's subjects in British India, or to excite disaffection towards His Majesty or the said Government or any such Prince or Chief; or, (e) to encourage or incite a person to interfere with administration of the law or with the maintenance of law and order . . . the Local Government may, by notice in writing to the keeper of such printing press stating or describing the words, signs, or visible representations which in its opinion are of the nature described above, declare the security deposited in respect of such press and all copies of such newspaper, book, or other document, wherever found, to be forfeited to His Majesty. Explanation 1.‑In clause (c) of the expression `disaffection' includes disloyalty and all feelings of enmity. Explanation 2.‑Comments expressing disapproval of the measures of the Government or of any such Native Prince or Chief as aforesaid with a view to obtain their alteration by lawful means, or of the administrative or other action of the Government or of any such Native Prince or Chief or of the administration of justice in British India without exciting or attempting to excite hatred, contempt, or disaffection do not come within the scope of clause (c)." The learned counsel contended that the language of the above section is almost in identical terms as one under consideration and that in cases arising under it, the view was taken that its language is very comprehensive and is wider than the words "brings or attempts to bring into hatred, etc." in section 124 .A, Pakistan Penal Code or other comparable statutes. On these premises the learned counsel contended that any article which tends to hurt the religious feelings of any community would be objectionable and come within the mischief of the provision under consideration. In this connection reliance was placed on the decision of the Privy Council in Annie Besant v. Advocate‑General of Madras (AIR 1919 PC 31). The contention of the learned counsel cannot be accepted even on this decision because the interpretation which their Lordships put to it is not of much help to him. This is quite clear from the observation of their Lordships. They observed that:‑-- "In substance the question under clause (c) of section 4, sub section (1) comes to this; are the passages such as in fact do excite, or do they disclose an attempt (which implies intention) to excite, hatred, contempt or disaffection towards the Government or of any class or section of His Majesty's subjects in India; and in judging the question of intent the publisher must be deemed to intend that which is the natural result of the words used having regard, amongst other things, to the character and description of that part of the public who are to be expected to read the articles." Though the case was not cited at the bar but I have noticed that in the famous case of late Mr. Mahomed Ali (The Comrade) ((1914) I L R 41 Cal. 466), Jenkins, C. J., did make certain observations which do support the contention of the learned Assistant Advocate‑General. In interpreting the above provision Jenkins, C. J., observed as under:‑-- "The provisions of section 4 are very comprehensive, and its language is as wide as human ingenuity could make it. Indeed, it appears to me to embrace the whole range of varying degrees of assurance from certainty on the one side to the very limits of impossibility on the other. It is difficult to see what lengths the operation of this section might not plausibly be extended by an ingenious mind. They could certainly extend to writings that may even command approval. An attack on that degraded section of the public which lives on the misery and shame of others would come within this wide spread net: the praise of a class might not be free from risk. Much that is regarded as standard literature might undoubtedly be caught." But this view was not accepted as sound by a Full Bench of the Madras High Court in Mrs. Annie Besant v. The Government of Madras ((1917) 37 I C 525). Three eminent Judges including Abdur Rahim, Officiating, C. J., expressed the following view on this provision of law: "The language of the sub‑clause to section 4 of the Press Act is not so wide as to embrace within scope writings that may even command approval, or writing attacking a degraded section of the public which lives on the misery and shame of others as unduly praising a class." Abdur Rahim, Officiating C. J., further observed that:‑‑ "The words `whether by inference, suggestion, etc.,' in section 4 are used merely by way of explanation and do not in any way enlarge the meaning of the words 'which are likely or may have a tendency directly or indirectly'. By 'tendency' is meant the natural effect of the words used on the readers of the Newspaper in question, and not the effect which they may produce on the minds of abnormally constituted persons, or persons whose acquaintance with the language is inadequate or those who might content themselves with reading certain passages or expressions apart from the context. All that has to be taken into account is the effect which the words are, by their nature, likely to produce on a normal average reader understanding them in their plain, natural meaning." It may be noticed here that in the present case the provision under consideration is not in such a wide lauguage as in section 4 of the Indian Press Act, 1910. In the provision under consideration, the words "whether by inference, suggestion, allusion, metaphor, or otherwise" are missing. Nevertheless, their Lordships of the Madras High Court took a rational view and interpreted the provision of law in a liberal manner because it affected the liberty of the subject. Thus, it will be noticed that the contention of Mr. Haleem that the language of the provision under E consideration is wide enough to cover a writing that hurts the feelings of any community cannot be accepted as sound.

10. In my opinion, the principles enunciated by Cornelius, J., in the case of the Daily Ehsan are fully applicable to the facts of the present case. In that case the provision under consideration was section 4 of the Press (Emergency Powers) Act XXIII of 1931) under which a writing would be within its mischief, if it tends directly or indirectly to arouse feelings of enmity or hatred between different classes of His Majesty's subjects. The learned counsel had to concede that the language of clause (i) under consideration is almost similar to the one in 1931 enactment. The contention of the respondent's counsel is not tenable for obvious reasons. In the first place, it will be noticed that in section 23 of the Press and Publications Ordinance, 1960 the words "tend directly or indirectly" or "are likely to create orb excite" have been used in separate sub‑clauses only for the convenience of drafting, otherwise the use of the word "or" in between signifies the same intention as in other comparable statutes. Secondly, if sub‑clause (j) is read with Explanation 3, it would be abundantly clear that the Legislature by using these words in two different sub‑clauses had the same intention as by using the words in continuation namely "tending to create or excite feelings of enmity, ill‑will or hatred". Moreover, it is quite clear from Explanation 3 of the provision under consideration that any comments made without malicious intention for securing removal of any factors tending to create or excite enmity, ill‑will or hatred shall not be deemed to be of the nature described in clause (j) and would not fall within its mischief. In view of this it is not possible for me to hold that by using these words in different sub‑clauses the Legislature intended or departed from what it meant in earlier statutes. It seems to me that the Legislature in the present statute had used them in the same sense as in other earlier comparable statutes. In the present case also the most important question for consideration is whether the objectionable writings have exceeded the limits of fair criticism or would arouse feeling of enmity, ill‑will or hatred on) a normal average reader understanding them in their plain natural meaning. I am of the view that the observation of Cornelius, J., in the above‑mentioned Lahore case that‑ "the coercive processes of the Press Act are not intended to check far less to prohibit the expression of the view of this kind, notwithstanding that they may be contrary to the cherished' beliefs of a section of the population, provided that they area written with full consciousness of the delicate nature of the subject which is being treated", is still the law of the land. The decision of the Allahabad Court in Khalil Ahmed v. State (AIR1910All.715), cited by Mr. Haleem has no application on the facts of this case. That was a reverse case in which the central theme in the objectionable writing was the alleged bad character of Amir Muavia. The author used abusive language and accused him of being "Kafir" and atheist.

11. It is in the light of the above discussion that I propose to consider the number of objections raised on behalf of the respondent Government in respect of the contents of the book in dispute which led to its forfeiture. In this respect the objections can be divided into two parts. There are some objections which on consideration, I have found to be inoffensive and these do not fall within the mischief of clauses (i) and (j) of subsection (1) of section 23 of the Press and Publications Ordinance, 1960. As stated earlier the details of these passages do not appear in the impugned order. Reference has only been made to the pages of the book in which the objectionable passages appear. For this purpose, therefore, reference shall have to be made to the affidavit of Mr. Mahmood Ahmed Rajput reproduced in the earlier part of the judgment. It may be mentioned that in the early stages of the book the author has discussed the various achievements made during the reign of Amir Muavia. In this connection the author has laid emphasis on the fact that one of the causes of trouble after the election of Hazrat Ali amongst the followers of Islam was the evil intentions of a group known as Sabais. He has blamed the intrigues and conspiracies of this group led by Abdullah bin Saba and Malik Ushtar in preventing the Khalifa from taking suitable steps to recover the "Qisas" (compensation) of the murder of Hazrat Usman and bringing the culprits to book. He has then proceeded to trace the causes of the Civil War amongst the followers of Islam at that time and depreciated it very much. It is in this context that he had observed that during this period the faithful of Islam did not conquer any new territory in contrast to the achievements made during the time of the three Caliphs who preceded Hazrat Ali. At pages 3 and 7 of the book he has made reference to the fact that there was neither any Jehad nor any conquest during Hazrat Ali's Khilafat the reason being the internecine warfare going on amongst the followers of Islam. The writer has further lamented at page 31 that Hazrat Ali was unable to perform any Haj nor acted as an Amir during his Khilafat as he had made Koofa the principal seat of his Government. He has then shown that Amir Muavia and Amir Yazid had performed Haj during their Khilafat and acted as Amirs during the performance of Hai. In my view simply because the writer has brought out such contrasting facts, it cannot be said that by doing so he intended to show any disrespect to Hazrat Ali. The learned Assistant Advocate‑General was unable to point out that the facts stated by the author in this respect are not historically true. I have noticed that the author while discussing these historical events has at a number of places eulogised the part played by Hazrat Ali to overcome these difficulties. Reference in this connection may be made to pages 7, 10 and 13 of the book.

12. The respondent has also objected to certain passages appearing at pages 19 and 21 on the ground that the author has run down the personality of Hazrat Imam Hussain by mentioning that he had accepted Amir Muavia's Khilafat under coercion and duress and was waiting for an appropriate time for becoming the Caliph and assuming the reins of the Government. A reference to this passage would show that the author in this part of the book is discussing events that led to the acceptance of the Khilafat of Amir Muavia by Hazrat Imam Hassan. He has praised Hazrat Imam Hassan for giving up his claim to the Khilafat. In this context the author has further commented that this attitude did not please the Sabai group and they were making unceasing efforts to instigate both Hazrat Imam Hassan and Hazrat Imam Hussain to raise the banner of revolt against Amir Muavia. In this connection the author has further referred to the visit of one Suleman Bin Sar to the two Imams and the talk that took place between them. He has quoted the answer of Hazrat Imam Hussain on this question recorded 'by the author "AI‑Imamat val Stasat", a Shia author. He has commented that according to this author Hazrat Imam Hussain had accepted the Khilafat of Amir Muavia by force of circumstances and against his wishes, and was waiting for an opportune time to advance his claim to this august office. It may be mentioned that even Mr. Amir Ali in his "History of Saracens" has remarked at page 84 that‑ "Hussain had never deigned to acknowledge the title of the tyrant of Damascus, whose vices he despised, and whose character he regarded with abhorrence and when the Muslims of Kufa besought his help to release them from the curse of the Ommeyade rule, he felt it his duty to respond to the appeal for deliverance." If the discussion is considered in this context the allegation that it was written to run down Hazrat Imam Hussain appears to be far fetched. The discussion in this part of the book appears to be quite inoffensive.

13. I would here like to dispose of another objection raised in para. 11 of the affidavit of Mr. Mahmood Ahmed Rajput. This appears at page 53 of the book. The objection about this writing is that it has the effect of arousing ill‑will amongst the Shias who hold Yazid to be responsible for the martyrdom of Hazrat Imam Hussain. It is alleged that the death of Hazrat Imam Hussain has been referred to as "Katal" instead of "Shahadat", and the Shias who hold it as "Shahadat" have been dubbed as the greatest fools. Reference to page 53 of the book would, however, show that no such expression of opinion has been made by the author. He can only be said to be guilty of reproducing the Fatwa of Imam Ghazali in reply to a question put to him to comment on the conduct of Yazid on this unfortunate event of the history. In answer to the question put to him whether Yazid was a true Muslim and whether it was proper to address his name with the word "Rehmatullah Alaih" the learned Imam opined that there was no proof that Yazid got Hazrat Imam Hussain slain or issued any such order or was happy over his slaughter, and in the absence of any such proof declared him as true Muslim; and furthermore said that the persons who hold this opinion are the greatest fools. The quotation is in Arabic and the word "Katal" has been used in it. The learned Assistant Advocate‑General was not in a position to deny that the quotation is not a correct version of the Fatwa. In any case the word "Katal" used in this portion of the book is nothing more than the translation of the Arabic text and in translating it correctly the petitioner cannot be said to have acted improperly. The use of the word "Katal" in Arabic text has not much significance on the events discussed therein. Besides, there is nothing in the book to show that the author of the book holds the view that the death of Hazrat Imam Hussain was not "Shahadat" or "martyrdom". I am, therefore, of the view that this objection also is without any merit.

14. This brings me to the discussion of the effect of those passages about which the learned Assistant Advocate‑General contended that they have the tendency of creating or exciting enmity, ill‑will or hatred between the two Sects of the Muslims, namely Sunnis and Shias. These passages relate to the writing at pages 60 to 80, 97 to 105 and 111, 179 and 180 of the book in question. In short the objection is that in some of them due prominence has been given "to the fact that in consequence of the acceptance of Yazid as Caliph by all Muslims Hazrat Imam Hussain had no justification to rise against him and in doing so and laying a claim to his own Khilafat had rather acted against the dictates of Holy Prophet, his companions and his near relatives". It is further alleged that the discussion about the revolt of Hazrat Imam Hussain against the Khilafat of Yazid amounts to be‑little and injure the religious feelings of the Shias and is disparaging to the personality of Hazrat Imam Hussain. The close examination of these pages would show that the author in these pages has discussed the duty of the Muslims to maintain unity in their rank. He has further stated that the majority of Muslims had accepted Amir Yazid as Caliph so much so that the close relatives of Hazrat Imam Hussain had persuaded him not to revolt against Yazid, that most of his relatives did not join him and that even the Companions of the Holy Prophet, who were alive at that time, did not support his claim for Khilafat. In this connection he has stated that Hazrat Muhammad Bin Ali, brother of Hazrat Imam Hussain had accepted the Khilafat of Caliph and did not join hands with his brother. Then he has made reference to the conduct of the second brother of Hazrat Imam Hussain, Amar‑al‑Atraf Bin Abu Talib who is also stated to be opposed to the insurrection led by Hazrat Imam Hussain against Amir Yazid. He has particularly discussed the attitude of Hazrat Abdullah Bin Abbas, an uncle of Hazrat Imam Hussain and Abdullah Bin Jaffer, a brother‑in‑law of Hazrat Imam Hussain. From this the writer has concluded that in such circumstances it was not proper and advisable on the part of Hazrat Imam Hussain to proceed to Kufa and be the cause of disunity amongst the Muslims. In the discussion he has observed that conduct of Amir Yazid was not so objectionable as to justify open revolt against him. Here he has quoted the opinion of certain other historians of that period, He has justified the step taken to suppress the revolt on the ground that if Hazrat Ali could raise his sword and banner against Hazrat Aisha, a widow of the Holy Prophet, how could Amir Yazid be blamed for opposing Hazrat Imam Hussain who had revolted against him and claimed the Khilafat only on the ground that he was the maternal grandson of the Holy Prophet and son of Hazrat Ali and Hazrat Fatima, He has made an attempt to exonerate Yazid from the responsibility of the tragic happening of Karbala on the ground that it happened without his knowledge. According to him Amir Yazid was also shocked and grieved on hearing the tragedy that befell on Hazrat Imam Hussain and his companions. He has further stated that the whole incident took place on account of hasty action on the part of the companions of Hazrat Imam Hussain. In support of his conclusion the author has cited number of other authors at different places.

15. After going through the objectionable passages referred to in the impugned order, it is quite clear that the author of the book in question is a staunch supporter of the Khilafat of Amirs Muavia and Yazid. His main object in writing this book appears to be to convince the Muslim public that both of them have played a noble part in Islamic History and have rendered yeomen service to the Muslim cause. According to him, during their period Islam had conquered vast territory and made considerable progress in all directions. His grievance is that the Muslim Historians have failed in presenting the truthful history of the glorious rule of Ommeddya. In order to bring out this aspect the author claims to have made research on this subject and written this voluminous book. While dealing with this subject he has discussed various aspects of the disputes of Amir Muavia's family with Hazrat Ali and Hazrat Imam Hussain. Throughout the theme of the discussion is that both Hazrat Ali and Hazrat Imam Hussain were the victims of intrigue and conspiracies of the Sabai's group, who were inimical to Islam. In this connection he has further discussed the wisdom and propriety of Hazrat Imam Hussain's conduct in raising the banner of revolt against Yazid. The author considered this conduct both against the principle of "Ulul‑Amar Minkum" (Direction to obey the ruler in power) recognised in Islam and the advise of the close relatives of Hazrat Imam Hussain, elders of the community and the Companions of Holy Prophet. He has made an attempt to show that in the circumstances prevalent at that time discussed in detail in the book Hazrat Imam Hussain should not have revolted against the established Government of Amir Yazid. He has further supported the action of Yazid in taking steps to suppress the insurrections. About the actual incident his view is that Hazrat Imam Hussain and his Companions were slaughtered without his knowledge.

16. It is true that the author has praised Hazrat Imam Hussain at several places but at the same time he has adopted every conceivable argument to minimize the tragedy of Karbala. He has not only exonerated Yazid from all responsibility in this respect but has gone a, step further and exonerated even Umal Ibn Saad and Ubaidullah bin Ziad, the two chief figures in this tragic episode from all the responsibility. After reading the book one gets an impression that if it lay within the power of the author he would not have hesitated in advancing the argument that the tragedy of Karbala never happened. Although, this aspect of the book is not referred in the impugned order, but for appreciating the effect of the alleged offensive passages, it is open to this Court to refer to the book as a whole.

17. Had the author eulogised only Amir Yazid or confined himself to the opinion that Hazrat Imam Hussain was not justified in raising the banner of revolt against him in guarded language it would have been difficult to hold the book as offensive. But the book appears to me to be a propaganda literature. The author cannot be said to be an impartial historian or research student alone. The entire discussion is one sided and at some places he has indulged in exaggeration and misrepresentation both about the dispute of Khilafat and actual tragedy of Karbala. On all the questions he has throughout found fault with Hazrat Imam Hussain. I quite agree with the learned Assistant Advocate‑General that by writing this book the petitioner has kept this unfortunate controversy alive and has exceeded the limits of fair criticism.

18. As discussed earlier, the law of Pakistan does not prohibit its citizens to comment on the religious and political controversies in guarded language. But where it exceeds the limits and where the writing does not further the ends of controversy but discusses things which could be left unsaid without injuring the controversy the writer cannot expect to have protection of the law. Judging from this angle I am satisfied that the above‑mentioned passages, if read in the context of the entire book, have the tendency to arouse feelings of enmity, ill‑will and hatred of the Shia Sect. Knowing as we do that the Shia community is very sensitive on this matter, the book written by the author would not only hurt their feelings but it is likely to create bitterness against him and persons of his way of thinking. I am, therefore, constrained to hold that some of the impugned passages do fall within the mischief of section 23(1) clause (j) of the Press and Publications Ordinance, 1960.

19. But there is further impediment in the way of the respondent Government. It will be noticed that in the notification the authority concerned has forfeited the book in question on the ground that it is likely to create or excite feelings of enmity, etc., between two sects of the citizens of Pakistan namely Shias and Sunnis. The petitioner's counsel contended that the views pro founded by the petitioner cannot be said to be of the Sunni Sect and for this reason it cannot be said that it would create any enmity or ill‑will between the Shia and Sunni Sects. At this stage it may be stated that it was not urged on behalf of the respondent that the views expressed in the book are those held by the Sunnis. At the hearing no such contention was urged by the learned Assistant Advocate‑General.

20. Even otherwise according to the Sunnis the struggle between Hazrat Imam Hussain and Amir Yazid was between good and evil forces. They further hold the view that Hazrat Imam Hussain was justified in this stand that the succession to the office of Khilafat should have been decided by full consensus of opinion or elective methods and not by tyrannical means and he had a better claim. It was on this account that he declined to accept Yazid's claim to sovereignty. In case he had accepted it, it would have meant the acceptance of the claim of heredity clannish superiority and oppressive monarchy as valid. In spite of the treachery and disloyalty of Kufis he resisted every pressure, coercion and intimidation and refused to owe allegiance to Yazid. For Muslims there is a moral in his sacrifice namely that "where the faith or the basic principles in which the faithful believe are in jeopardy no sacrifice is too great". Maulana Muhammad Alt Jauhar has very rightly said in one of his couplets that "the slaughter of Hussain is really the death of Yazid. Islam receives a fresh lease of life after every tragedy like that of Karbala".

21. So far as I know Sunnis only object to the manner in which the tragedy of Karbala is commemorated. They consider that the various ceremonies and rituals practised on this occasion have no Islamic basis. They refrain from abusing Yazid. They also do not call him as Fasiq, Fajir or Kafir and taken no objection in calling after his name "Rahmatullah Alaih". The Sunnis, however, mourn the tragedy of Karbala, observe fast on 10th of Moharram and distribute alms and food on this occasion. Moreover, neither it is the case of the respondent nor is there any material on the record which can lead to the inference that the petitioner is backed by any section of Sunnis or is an active supporter of any Sunni organisation. In my view that part of the book which I have held as offensive will even hurt an average Sunni Muslim. In these circumstances, it is difficult for me to hold that the views expressed by the petitioner are likely to create or excite feelings of enmity, ill‑will or hatred between the two sects of the Muslims namely Shias and Sunnis. Such feeling may arise against the petitioner or the persons of his way of thinking (Yazidis). But the book has not been forfeited on this ground.

22. It is unfortunate that this technical defect is helpful to the petitioner. But as the book has not been forfeited on valid ground, the impugned order is liable to be quashed. In this connection reference may be made to the view expressed by the Federal Court of Pakistan in the case of Woking Muslim Mission v. Crown (PLD 1955FC209). In that case their Lordships held that it is not open to the High Court to uphold an order of forfeiture on the ground not stated by the Provincial Government in the impugned order. In that case the High Court held that the matter forfeited was not punishable under section 295, P. P. C., which was the ground on which the Provincial Government's forfeiture was based, but was punishable under section 153‑A, P. P. C. The High Court sustained the order of forfeiture on the latter ground. This view did not find favour with the Federal Court. Their Lordships held that the High Court was not competent to change the grounds because the reason for forfeiture was exclusive with the Provincial Government and not with the High Court. In view of this decision even if it be held that the book in question tends to arouse feelings of enmity, ill‑will or hatred between Shias and the petitioner or any sect upholding this view g the impugned order of forfeiture is defective and is liable to be quashed because the authority concerned has not forfeited the book in question on that ground.

23. In the result, I would very reluctantly accept the petition and quash the order of forfeiture passed under section 23‑ of the Press and Publications Ordinance, 1960. In the circumstances of the present case, I would however, direct the parties to bear their own costs. FARUQUI, J.‑

I have had the benefit of reading the judgment of my learned brother Waheeduddin Ahmed, J., with whom the learned Chief Justice has agreed. With very great respect to my learned brothers I have not been able to reach the same conclusion upon which it has been proposed to allow the application.

2. In the elaborate judgment of my learned brother he has dealt with the various passages contained in the pages which have been referred to in the notification by which the forfeiture of this book has been declared by the Governor and I do not propose to go over them again in extenso, particularly as I am in general agreement with the assessment of my learned brother which he has given in respect of the several passages with reference to their pages. What I propose to do is to look at the book as a whole in order to examine the question whether the impugned passages come within the mischief of clauses (i) and (j) of subsection (1) of section 23 of the Press and Publications Ordinance, 1960. Before I do so, I would like to mention that this book had come before the same Bench once before when an order for its forfeiture had been passed by the Administrator of Karachi under section 99‑A, Cr. P. C. whereupon the present petitioner had moved this Court under section, 99‑B, Cr. P. C. for the setting aside of that order. In that case, the Administrator of Karachi had declared the forfeiture of this book upon the ground that it "contains matter which is likely to create hatred between different people of Pakistan". We had in that case and in which the judgment was written by me, set aside the order of forfeiture by holding 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 the material portion of which has been reproduced in section 99‑A Criminal Procedure Code." The judgment of the Court is reported in Mahmud Ahmed Abbasi v. The Administrator of Karachi (P L D 1961 Kar. 129). As has been noticed the present order of forfeiture as contained in the impugned notification dated 20th February 1963 has been made under the Press and Publications Ordinance, 1960.

3. In the present petition under section 45 of the said Ordinance the petitioner has stated that he is nor a professional preacher or Moulvi; that urged by his patriotic impulses which were aroused by the events of 1907‑8 he decided to devote his life in the service of national causes and so in 1908 he joined the All‑India Muslim Educational Conference, Aligarh which he served until he was drawn in the Khilafat Movement upon the pursuation of Ali Brothers. He has then gone on to enumerate the various books and articles that he has written mostly as a result of historical research and that these had found deep appreciation from distinguished and learned leaders of thought. it is then stated that in the year 1950 the inspiring speeches and writings of His Highness, the late Agha Khan, prompted the petitioner to make a research on the Omayyad Period in the Muslim History and for this purpose he plunged himself deep into research and studied over 500 books in Urdu, Persian, Arabic and English and after about 5 years of continuous labour he began to publish articles on the subject which were greatly appreciated. He also wrote a review of the books named `Al‑Husain' which review was published in a series of periodicals and was concluded in October 1958. These with some adjustments have now been incorporated in the shape of the present book.

4. In the preface to this book the petitioner has quoted from the foreword written by the late Agha Khan to the book "The Great Omayyad" which may be reproduced:‑ "After centuries of destruction and ruin, Pakistan as the first and greatest Islamic State has come into being. This, therefore, is the most suitable time in which the history of a great period of Islamic History, that is of the Bani Umayya which lasted a century and constitutes a bright period, should be truly recorded so that it may be presented to the Pakistan public who badly need a true and impartial review of their past." This is the purpose which the petitioner claims to have achieved by writing and publishing the book in question, the title of which is "Khilafat‑e‑Moaviya wa Yazid".

5. Let us then examine the scheme arrangement and the contents of this book as briefly as possible to appreciate its true purpose and to judge in the light of this examination the effect of the impugned passages. If this examination can be fairly assessed to be an attempt to bring out the true facts of the Umayya period and the achievements of Hazrat Moaviya and Yazid there can be little doubt that the writing would not properly come within the mischief of sub‑clauses (i) and (j) of section 23(1) as has also been found by my learned brother. Indeed, Explanation‑1 of section 23 itself would completely in that case exonerate the petitioner if such was the case. This explanation reads:‑- "No expression of approval or admiration made in a historical or literary work shall be deemed to be of the nature described in this subsection unless it has the tendency described in clause (a)." This clause (a) relates to incitement or encouragement to the commission of any offence of murder or any cognizable offence involving violence. It is not the case of the Government that this clause is attracted with regard to this book.

6. The book begins with an attempt to give the background of Umvi Khilafat and immediately embarks upon a criticism of the Khilafat of Hazrat Ali. The author starts by relating the controversy which attended the assumption of Khilafat by Hazrat Ali. It is said that on the assassination of Hazrat Usman when the Sabai leaders wanted to do Bait (vow of submission) at the hands of Hazrat Ali, he was warned that if he kept any truck with the Sabais, people will even blame him for the blood of Hazrat Usman. But Hazrat Ali did not take this advice and accepted the Bait from the Sabais. His Khilafat was thus established by the influence of Sabais who were murderers and rebels and Hazrat Ali did not insist upon taking compensation for the said murder. The Sabais dominated the politics of this period so that the great Sahabas (associates of the Prophet) declined or avoided to accept Bait at the hands of Hazrat Ali. The result was that his Bait of Khilafat remained incomplete. It is said that Sabais were in reality the enemies of Islam and their mischievous role was calculated to create dissension amongst the Ummat but Hazrat Ali did not clearly see this and did not insist on compensation from them and this was wrong. The result was that unlike the period of the previous three Caliphs during which there was unity and conquest against Kafirs there was no Jehad during the Khilafat of Hazrat Ali and during his time the state shrunk so much that all that was left was Koofa. Then at page 12 it is stated that the arbitrators unanimously declared the deposing of Hazrat Ali from the post of Khalifa and left the question of election of the new Khalifa to be decided later. On page 13 is stated the circumstances in which Hazrat Ali was assassinated by a person of his own group. It is stated on the same page that Hazrat Ali, before he breathed his last, had a long talk with his son Hazrat Hasan and advised him to make peace with Moaviya after his death and warned him against dissension and disruption of the Ummat. At page 16 is referred the compromise by Hazrat Hasan with Amir Moaviya and acceptance of the latter's Khilafat. It is later on stated that Hazrat Husain had not agreed with his brother but in any case it is said that it cannot be denied that he also had accepted the Bait. At page 19 is stated the treatment by Hazrat Moaviya of the two brothers Hazrat Hasan and Hazrat Husain and it is said that whenever they visited Damascus they were honoured and gifts of considerable value were given to them. It is further stated that after the death of Hazrat Hasan Hazrat Husain went to Hazrat Moaviya every year and the latter made him similar gifts. From page 21 commences the role of Amir Yazid beginning with his participation in the Jehad in Constantinople and of his courage and ability, and it is stated that Hazrat Husain had also taken part in the Jehad n Constantinople and of this army the leader was Amir Yazid. It may be stated here that in these passages and indeed throughout the book the author has extensively quoted from various writers in his narration of events and of their assessment. At page 30 is stated the fact that Amir Yazid performed Hajj thrice. From page 32 onwards is considered the question of succession to Hazrat Moaviya and the appointment of Amir Yazid as the Wali‑Ahad (successor). It is stated that Hazrat Moaviya was very circumspect in this process because he was mindful of the undesirability of the development of a custom whereby Khilafat would devolve to the son. He, therefore, called representatives from various places including the Iraqis and in fact it were they who proposed the name of Yazid for Wali‑Ahad (successor). Hazrat Moaviya was still not satisfied because some people of Quresh were not agreeable to this decision. Hazrat Moaviya; therefore, performed a Hajj and it was on that occasion that he again brought up the question and every one welcomed the decision of Yazid succeeding Moaviya. At page 40 it is concluded that the appointment of Amir Yazid as the Wali‑Ahad so as to succeed the Khilafat had been done with the consent of the Ummat and that this measure was designed for the good of the Millat. Then follows a long and elequent narration with regard to the character and ability of Amir Yazid and the vast unanimity on the question of his appointment as the successor. At page 53 is given a quotation from Imam Ghizali that Yazid was a true Muslim and it is not true that be had got Hazrat Hussain assassinated and as this fact had not been proved it was not right to have hostility with him. At page 60 begins the discussion on the question of obedience to the Amir and prohibition of his expulsion. There are extensive quotations containing disapproval of any step against Khorooj (expulsion) and revolt against the Khalifa. A Rewayat (saying) is quoted from the Prophet that he said that if there be Bait for two Khalifas then the latter should be killed. It is said that unless the Khalifa became guilty of Kufr, his expulsion was not permissible. At page 66 is given the list of 5 persons who could be described as the aspirants to Khilafat after Moaviya. The name of Hazrat Husain is shown fourth in this list. Then follows the narration of events and a discourse in which it is shown that the step which Hazrat Husain took in challenging the ascension to Khilafat of Yazid was ill‑advised and many of his own relations and the distinguished members amongst the Sahabas had advised him against that course. From page 73 onwards is given the mild attitude of the Government represented by Amir Yazid and the attitude of Amir Yazid in this respect. At page 84 it is shown that the theory that the Bani Hashim were opposed to Umvi Khilafat was not true and that the whole mischief was that of the Sabai group. It is then stated that Hazrat Hasan had always advised his younger brother Hazrat Husain to avoid war and strife and work for peace amongst the Ummat. At page 95 and onwards is given the insidious machinations of the Sabais of Koofa who after the death of Amir Moaviva induced Hazrat Husain to come to Koofa when the vast majority of people will accept Bait at his hands. Again from page 97 onwards upto page 108 follows a discourse full of quotations emphasizing the mistake of Hazrat Husain in challenging the Khilafat of Ami: Yazid. At page l09 and onwards is narrated the episode consisting of the attack by Muslim and the complete rout of his of army and the punishment of death meted out to him by the Government. Then follows the events relating to the journey of Hazrat Husain to Koofa in spite of many protestations from various quarters. At page 163 it is stated that when Hazrat Husain learnt of Muslim having been killed he intended to abandon the march and go back but the brothers of Muslim were determined to avenge the death of Muslim and urged him on. At page 174 and subsequent pages it is stated that when Hazrat Husain reached near Koofa and learnt of the true state of affairs he had decided to abandone his march to Koofa and go to Demascus to meet Yazid and that he had realised his mistake. It is added that having realised the mistake of his objectives Hazrat Husain put three alternative requests before the officers of the Governor of Iraq. Firstly, that he should be allowed to return to Madina and if riot he should be allowed to go to the frontiers of the State to take part in Jehad (war against non Muslims) and even if this was not acceptable he should be sent to his cousin Yazid in Demascus so that he could give his hand into his. In the alternative it is argued that even if the fact that Hazrat Husain had given up his mission is not accepted the Caliph that is Amir Yazid cannot be blamed for the events that happened because if somebody challenged an established Khilafat the Government would be justified in raising its sword against its opponents. It is pointed out that if the sword of Hazrat Ali could be unsheathed against Ummul-Momeneen Aisha Siddi Ali who was the mother of the whole Ummat, how could objection be taken to the same act if it was directed against Hazrat Husain, whose only claim to Khilafat was on the ground that he was the grandson of the Prophet.

7. From page 182 begins the narration and discussion with the events of Karbala and it is elaborately argued and attempted to be demonstrated that the unfortunate incident has been made to appear in a manner which is full of untruth exaggeration, myth and fiction. Reference is made to many things and events which, it is shown to be worst example of falsehood and mischief. At page 265 it is stated that there was neither any regular battle nor the heads of the killed persons were separated from the body nor was this fact given publicity and demonstration; it was in fact an unfortunate happening which took place suddenly and was finished between half an hour and an hour after which the bodies of those who had fallen were burried after Namaz-e-Janaza. Between pages 225 and 237 there is reference to the attitude of Ali-bin-Husain who had kept out of all this trouble and had even praised Yazid. Reference is also made to a large number of quotations upon the basis of which it is argued that a series of false accusations and imaginary charges had been made against the Bani Ummayyas. This was due to a systematic attempt on the part of the Abbassiedes and their agents and the falsehood of these accusations was of kind, the like of which could not be found anywhere in history. Here a passage fpm Encyclopaedia Britainica has also beep quoted. Lastly, there is a long narration with regard to marriages and new relationship which took place between the Ummayyas and the children of Hazrat Husain and it is pointed out that if all the bitter things which are said against Bani Ummayyas had really happened it was not possible to reconcile this with the subsequent marriages and the good relationship which existed between these two dynasties of Bani Ummayya and Bani Hashim.

8. The last part of the hook which commences page 273 contain reference to various aspects of the private and domestic life of Amir Yazid to show his goodness and greatness. An attempt has been made to disprove the various charges and accusation made against his personal character and his conduct as a man.

9. I have dealt at this length with the topics contained in the books so that its true import and objective may be clearly appreciated, It is in this light that the impugned passages may be examined. I do not intend to deal with those passages once again because this has been admirably done by my learned brother and I have already said in the opening part of this judgment that I am in general agreement with his assessment thereof. What I now propose to do is to consider whether the book, read as a whole and particularly with reference to the passages pointed out, can be held to come within the mischief of clauses (i) and (j) of section 23(1). My impression by going over the book is that it does not concern itself very much with the achievements of the Bani Ummayyas. The whole purpose of the author is to justify the assumption of office of Khilafat by Amir Yazid with a brief reference to Amir Moaviya. In doing so, the author has perhaps of necessity dealt with what he describes as the mistake of Hazrat Ali and the completely unjustified attempt of Hazrat Husain in challenging the Khalifat of Yazid and his position as the Khalifa. It would be seen from what has been brought out above that he has dealt with the subject almost throughout the book in an attempt to extol Amir Yazid and his virtues and disprove the accusations against him and minimize and even discredit the role of Hazrat Husain in the challenge which he offered and in which he lost his life. Having said this it must be added that the author has throughout expressed himself respectfully towards Hazrat Husain and Hazrat Ali and has nowhere used any intemperate language nor has, even on a single occasion, indulge in abuse or vituperations. The language is throughout temperate and every conclusion has been recorded without using any strong expression. Most of what has been said has been supported by vast quotations. At no place is there any appeal to emotion. The whole book has been written in a cold and reasoned manner. It is for these reasons that I have experienced considerable difficulty in reaching the conclusion having regard to the law laid down in the Full Bench judgment of the Lahore High Court in the case of the Daily Ehsan, from which my learned brother has reproduced the important observations of Cornelius, J., as he then was. It is true that pronouncement was under the Press (Emergency Powers) Act of 1931, but those parts of the provisions of the Ordinance of 1960 with which we were defiling are not different in substance with similar provisions in the Act of 1931, and I agree that the observations in that case fully apply to the present case. Having given my most careful consideration to the question I have reached the conclusion that this book does come within the mischief of clause (j) of section 23(1). Clause (i) in my opinion however, is not attracted. I shall now give my reasons for reaching this conclusion.

10. The beliefs of the Shia Sect on questions which are the subject‑matter of this book are well known. It is also a matter of common knowledge that because of these beliefs and in the manner in which they are practised there has not only been disagreement of view point between the Shias and the Sunnis, there have also been, most unfortunately, cases of violence and even loss of lives between certain sections of these two sects. That such incidents are regretted by many and the doing of things which may accelerate the controversy is deprecated b. reasonable people, is true. But that is not the point. The fact remains that the members of the Shia sect generally feel strongly and are extremely sensitive about the matters which have been dealt with in this book, the thesis of which is a wholesale repudiation of most of the things which the members of the Shia sect generally believe and hold to be sacred. It is true as my brother Waheeduddin, J., has said that the Sunnis also believe in the Shahadat of Hazrat Husain and look upon him and Hazrat Ali with all possible respects and reverence but that there is a field of controversy between the two sects cannot be denied. That many enlightened people of both sects and particularly those who are sophisticated do not consider it worth their while to enter into these controversies and consider it to be futile, does not destroy the fact of the existence of that controversy. That this sometimes finds expression in unpleasant and unfortunate happenings in connection with the demonstration on the occasion of Moharram, is merely a symptom indicating the existence of the controversy. Now it is true that if the decencies of controversy maintained a discussion on controversial religious subject may normally be permissible. That is a matter which relates to the right of expression of citizens. But here is a book which, as far as I can see, presents a completely one‑sided picture of events and trends in respect of what happened a long time ago, but on many aspects of which the members of the Shia sect not only hold diametrically opposite views but consider those views as sacrosanct and treat it as an integral part of their faith. I entertain no doubt that a vast majority of the Shias would resent this book and would feel deeply hurt by its contents. As I have said it entirely repudiates almost every thing that the Shias believe in and stand for in this respect. It contains a complete negation of such beliefs to which they adhere strongly. The question is that. having regard to the law on the subject which respects the right of free expression, subject of course to recognised limitations. can it be reasonably held that the book comes within the mischief of clause (j) of section 23(1) of the Ordinance. This clause reads:‑ "

23. Power to close down press and forfeit security.‑(1) Whenever it appears to the Government that any printing press in respect of which any security has been ordered to be deposited under section 22 is used for the purpose of printing or publishing any book or paper containing any words, signs or visible representations which‑-- (j) are likely to create or excite feelings of enmity, ill‑will or hatred between the populations of the two Provinces, or the populations of any regions or parts of Pakistan, or between different communities, sects, classes or sections of the citizens of Pakistan;" Having regard to the portion of this clause which, in my opinion, is attracted in the present case, the question which I have attempted to answer is this. Is this book likely to create feelings of ill‑will between two different sects that is the Shias and the Sunnis? The words in this question "likely to create ill‑will" must be read in the background of case law which has been amply brought out in the judgment of my learned brother Waheeduddin, J. The question is not free from difficulty, but after very careful consideration I have reached the conclusion that the answer to it must be in the affirmative. As was observed by Cornelius, J., in the case of daily Ehsan we are not Judges of doctrines but only of human susceptibilities. That the susceptibilities of the members of the Shia sect generally would revolt at the thesis contained in the boik presented in a completely one‑sided manner and which is based on innumerable controversial Rewayats (sayings), the correctness of which is bound to be repudiated, appears to be almost certain. It was urged by, Mr. Aziz that the appeal in this book was to reason and not to passion, to head not to heart, but one may ask as to whom the appeal is addressed to. The above expressions appear in the judgment of Cornelius, J., in the case of daily Ehsan, but the articles which were the subject‑matter of that case are entirely of a different nature. There were three of them. The first article was under the heading "Moharram and Musalman". It criticised the mode in which the martyrdom of Hazrat Imam Husain was celebrated every year. The deed itself, namely the sacrifice offered by Hazrat Husain which was sought to be commemorated on the occasion of Moharram was described by the author as `great'. What was criticised by the writer was the method of observing it which he considered to be idolatrous. The appeal for reform in that case was addressed to all Muslims, Shias and Sunnis alike. The second article was entitled "Story of Infidelity of Koofis at Karbala". The third article was entitled "Moharram: What does this month remind us of." The title of these articles themselves indicate the purpose of the writer. He was trying to preach reform to Shias and Sunnis alike in the matter of observance of Moharram. It was in this context that the above expressions had been used. I do not think that the argument of appeal to reason‑ and not to heart applies in the consideration of the present book. It was not reform that the author of this book was contemplating. Surely he could not have even remotely hoped to convince the Shias of the version of Karbala which he was propagating in this book. I do not think he has even attempted it. Therefore, I do not think the consideration of appeal to reason arises in this case. Truth has to be told but it has to be towards a constructive purpose. If that purpose is not there and in telling in a highly coloured manner what the author considers as the truth, his writing injures and embitters the sensibility of a certain sect of the community, that is the Shias and he happens to be a member of the other sect, that is the Sunnis it would be reasonable to hold that the book is likely to create feeling of ill‑will or hatred between the two sects. My learned brothers have taken the view that having regard to the beliefs of the Sunnis in respect of the Shahadat of Hazrat Imam Husain it would be difficult to hold that the views expressed by the petitioner are likely to create or excite feelings of enmity, ill‑will or hatred between Shias and Sunnis and that such feeling may arise against the petitioner or the persons of his way of thinking (Yazidi) but the book has not been forfeited on that ground. With profound respect I am unable to agree. In the first place there is not enough material upon which such a conclusion might be based and I would be slow to introduce my own feelings and knowledge on the subject. Secondly, and this is. more important, it is not what the Sunnis believe that would matter in the present case. It is what the Shias would feel about this book, and of this I have said enough, which must be taken into consideration. The writer of this book is a Sunni and where the contents of it anger, embitter and revolt the feelings of the Shias the mischief contemplated in clause (j) of section 23 (1) is likely to occur. My conclusion, therefore, is that this book is likely to create ill‑will between the Shias and the Sunnis. In this view of the matter I would dismiss the petition. K.B.A. Petition accepted.