P L D 1953 Peshawar 26 (PLP)

MUHAMMAD SHAFI, J.‑This order may be read in conti nuation of our order dated 16th April 1952. Fazal Illahi respondent mentioned on the last page of the offending pamphlet Manshoor is given out as the printer and publisher thereof. Fazal Illahi admits that he permitted Din Muhammadi Press Lahore, when the pamphlet was printed, to print and publish it in his name, because he was requested to lend his came for that purpose by one Faridullah Bacha. His case is that during October 1951, he had gone to Lahore along with his family in order to have himself treated for heart disease, He was staying in Delhi Muslim Hotel, Anarkali Lahore, when the said Faridullah Bacha met him, and asked him that he wanted to have an Election Manifesto of Azad Yusafzai Muslim League printed, and needed his help. At first Fazal Illahi refused to assist him, on the ground that he had nothing to do with politics. Two or three days later, however, the said Faridullah Bacha again met him, and told him that the Manifesto was ready, and that he could not find any Press to print it Fazal Illahi took Faridullah Bacha to Din Muhammadi Press the Proprietor of which he knew already, and requested the keeper of the Press to print the Manshoor. The Press people told him that they did not know Faridullah Bacha, and consequently the Manshoor could not be printed in his name. It was then that Fazal Illahi lent his name, and it was printed on this Manifesto. In support of his defence he put in his own affidavit, and appeared into the witness‑box. He has also produced the electro‑cardiogram of his heart, and other documents showing that he was in fact suffering from heart‑disease. He has, however, failed to put Faridullah Bacha, or anybody connected with Din Muhammadi Press into the witness‑box to prove that he had lent his name to be printed on the Manifesto as the Printer and Publisher thereof, without regarding its contents. At a very late stage of these proceedings he produced an affidavit which purports to be that of one Hamid Anwar, son of Jan Muhammad, Manager Din Muhammadi Press, Circular Road Lahore, attested by the Commissioner of Oaths of the High Court of Judicature at Lahore, to say that in the month of October 1951, Faridullah Bacha, whom he came to know later, went to him in the Press and gave out himself as the propaganda secretary of Azad Muslim League Yusaf Zai Hoti North‑West Frontier Province. Munshi Fazal Illahi was pre viously known to him, and he had accompanied him. Faridullah Bacha produced before him a Manuscript of Election Mani festo of the said League for printing it. He refused to print it until and unless he knew the printer and publisher, and it was then that at the request of Faridullah Bacha, Fazal Illahi lent his name. According to him the printing charges were paid by Faridullah Bacha. This affidavit we are unable to accept into evidence. It is true that in contempt proceedings which are summary in nature, the High Courts would ordi narily act on affidavit‑evidence, but delay in putting in such affidavits should always be regarded as fatal. We however find it extremely difficult to believe that Fazal Illahi did in fact permit his name to be published under the circumstances mentioned by him. Even if we believe Fazal Illahi for a moment that without regarding the contents of the Manifesto he permitted his name to be given out to the public at large as its Printer and Publisher, still he cannot escape the liability for all that is contained in that document. Normally, if the name of a certain person is printed on a certain pamphlet as its Printer and Publisher, he should be taken to have autho rized the printing and publishing of everything contained in it. M. We, therefore, hold that Fazal Illahi has hopelessly failed to prove that he lent his name to be published on the Manshoor without reading its contents. We further hold Fazal Illahi responsible for all that matter which is printed in this docu ment. It is not denied by the learned counsel appearing for Fazal Illahi respondent, or for the other respondent in the case, that this Manshoor generally and particularly at its pages 11, 13 and 25 prints and publishes matter which unques tionably imputes injustice, dishonesty, corruption, inefficiency and improper motive to the Judges of this Court in their judicial capacity. The Manshoor also makes allegations, accusing the entire judiciary and the Courts of the North West Frontier Province of corruption and inefficiency. It can not be denied, and in fact is not denied that all what is said about the Judges of this Court, and the judiciary in general of the North‑West Frontier Province, constitutes the grossest form of contempt, and calculates to lower them in the estimation of public, and thus obstruct the fair administration of justice. The Judges generally in a free State said particularly when it also claims to be an Islamic free State, derive their authority from God and His people. They are, thus, answerable to both, and as such they should not be considered as immune from cri ticism, but then the criticism of the people should be extremely scrupulous and made in good faith, and should be based very strictly on good reasons. The criticism should not attack the persons of Judges or impute improper motives to them, because if that is done an undue advantage is taken of their position. The Judges of a High Court as a matter of decency and prestige cannot enter into controversy with their critics in the columns of Press, nor can they seek ordinary remedy, for example proceedings for libel and slander in ordinary Courts, which are open to the other citizens for one amongst other reasons that those Courts are subordinate to them. A Court of law generally and the Highest Court of law in a certain Province particularly is an institution which should be respec ted by everyone including the Judges themselves, as the best guardian of civil liberty. Not in the interest of the persons of the Judges, but in that of the general administration of justice, the prestige of the Court, and above all the country in which we live, it is the duty of the Courts and the people of a free State to see that all attempts, from whatever quarter they initiate, and in whatever form they are cloacked, to over throw, undermine and impair the authority of a Court, should by every possible weapon be frustrated. Apart from that untill and unless the people hale a complete confidence in the judiciary no State worth the name can exist, and all these persons who do any act to shake this confidence commit the most serious wrong to God, country and their own people, which deserves to be punished most severely. The criticism in the Manshoor can by no stretch of imagination be either said to be reasonable or proper. The allegations made about the Judges of this Court in particular and the judiciary in the North‑West Frontier Province in general are false and mischievous, and they no doubt tend to undermine and impair the authority of this Court, and shake people's confidence in it. We consequently, finding Fazal Illahi guilty of the offence charged with, sentence him to one month's simple imprisonment. His learned counsel asked us to accept his apology, but considering the serious nature of the offence, which he has committed we are unable to accede to this request. Apart from that, in the affidavit which Fazal Illahi has placed on the file, while demanding apology, he wrote the following :‑ "That I have the greatest respect for the dignity and honour of this Hon'ble Court, and have never entertained the least intention of bringing it into contempt. I consider it my bounden duty to uphold the honour and dignity of the Hon'ble Court. If by the publication of the Azad Yusafzai Muslim League Manifesto this Hon'ble Court is in any wise brought into contempt, I express my heart‑felt regret and unreservedly tender my sincere apology." This certainly cannot be called to be an unconditional apology. Fazal Illahi like a man possessed of ordinary common sense should have understood that the Manshoor did contain matter which brought this Court into contempt, and if he wanted his apology to be taken into consideration, he should have tendered it unconditionally. An apology and the condi tions attached thereto are incompatible with each other, and cannot be accepted at all. The case against Muhammad Akbar Khan respondent, however, stands on a different footing. His name is not prin ted anywhere in the offending pamphlet, or on its front or back pages as either the printer, or publisher or the author thereof. The learned Advocate General in an affidavit placed on the record on 1st April 1952, alleged in its para. No. 2 that the real author of this document was Muhammad Akbar Khan respondent, who got it printed through Fazal Illahi respondent. It is not clear from the affidavit whether the learned Advocate General was making this statement of fact from his own personal knowledge, 'or from knowledge derived from other sources. The second sentence in para. No. 2 gives some indication that this accusation of Muhammad Akbar Khan respondent could not have emanated from the personal knowledge of the learned Advocate‑General, but was based on certain circumstances gathered by him from within the document itself. He said in para. No. 2 in continuation of the above accusation that the pamphlet in question contained the views of Muhammad Akbar Khan respondent as was apparent from para. No. 5 on page 7 of the pamphlet. Even if it be assumed for the sake of argument that the learned Advocate‑General was accusing Muhammad Akbar Khan respondent of being the author of this pamphlet from his own personal knowledge, still his affidavit having been contradic ted by a counter‑affidavit of Muhammad Akbar Khan, it was the duty of the learned Advocate‑General to either himself come into the witness‑box and substantiate the accusation by making a statement on solemn affirmation, or produce some evidence connecting Muhammad Akbar Khan with the pamphlet. He has done nothing of the sort. The affidavit of the learned Advocate‑General, therefore, cannot be attached any importance whatsoever. Para. No. 5 on page 7 of the Manshoor refers to a certain incident in which the author of the pamphlet says that during his stay in England he himself saw Mr. Ramsay Macdonlad the Prime Minister of Britain, travelling in a tube train, pay ing one anna ticket from his office to his house. In the same para, it is also mentioned that a Foreign Secretary of France; who did not own any house, had rented a small room from a certain barber, where he used to meet the visitors. This argument is that the person, who saw Mr. Ramsay Macdonald travelling in a tube train and the Foreign Secretary living in a room rented from a barber could not be anybody else, but Muhammad Akbar Khan himself. At any rate, it is suggested that it could not be Fazal Illahi respondent. Evidence has been led by the learned Advocate‑General to show that on 1st September 1936, Muhammad Akbar Khan res pondent had been granted a passport for proceeding to British Empire, Iraq, Palestine, Egypt and the whole of Europe. The purpose for which he was granted the passport was medical treatment. Muhammad Akbar Khan respondent has admitted that he did get a Passport in September 1936, but contended .,that he did not avail of it, and so did not go abroad at all. In support of his contention Muhammad Akbar Khan respondent produced Muhammad Abdullah, who is in service since 1925. This witness produced the official reports of the Council of State Debates showing that Muhammad Akbar Khan, who was a member of the Council of State in the pre paration days, had delivered speeches and exercised his right of vote in its assembles, which took place on different dates from 21st September 1936 to 17th October 1936, in Simla. Again he produced a Gazette (Exh. D. C.), showing that in 1936, Muhammad Akbar Khan respondent had contested elec tion from Kamalzai Constituency to the Provincial Legislature. This witness has also produced some correspondence of Muhammad Akbar Khan respondent with a certain Dr. Blendel, which took place in May 1937. All these documents about the genuineness of which there can be no doubt prove that Muhammad Akbar Khan respondent in spite of the fact that he was granted the Passport did not avail of it and so did not go to England at all. In any case, the Encyclopedia of the World History shows that Mr. Ramsay Macdonald was not the Prime Minister of Britain at the time when Muhammad Akbar Khan respondent is alleged to have gone abroad. Mr. Ramsay Macdonald was Prime Minister for the third and the last time from August 1931 to June 1935. Thousands of people from pre‑partitioned India, including the North‑West Frontier Province, used to go every year to England, and they had just as much opportunity to see Mr. Ramsay Macdonald travelling in a tube train and the Foreign Secretary of France living in a small room rented from a barber as anybody else. The learned Advocate‑General has failed to convince us that the above two incidents could have been watched only by Muhammad Akbar Khan respondent and none else. Fazal Illahi respondent has admitted in his evidence that he never went to England. This, therefore, is true that he could not have himself seen these two incidents, but the mere fact that Fazal Illahi did not see these two incidents does not lead one to the conclusion that it must have been Muhammad Akbar Khan respondent, who had personal knowledge of these two facts. The learned Advocate‑General then argued that there were certain other circumstances apparent on the face of the record, which proved conclusively or at any rate beyond a reasonable doubt that that the author of the offending Manshoor could not be anybody else but Muhammad Akbar Khan res pondent himself. The first reference is made to the Crest appearing on the title page of the Manshoor ; it represents an eagle and in the semi‑circle around it on, one side there is a Roman quotation, and on the other an Arabic one. At the feet of the eagle the words "Rayatul Uqab" are written. It is said that this Crest is exactly the same as the Crest of Muhammad Akbar Khan engraved on his hujra, Library, and other build ings. We have compared the two Crests very carefully, and we find that the two are absolutely different from each other. The eagle in the Crest of the Manshoor faces left, while the one ew:raved on the buildings of Muhammad Khan respondent faces right. In the former, as has already been observed, the words, "Rayatul Uqab" are written, while in the latter there is only one word written and that is "Uqab". Again, the Crest on the Manshoor has got only a semi‑circle, while the other beak of the eagle are also different in the two Crests. The only similarity is in the quotations, the Roman and the Arabic, in the two Crests. There is, however, a little difference even there i.e., in the Crest on the Manshoor the word "Hoti" is written under Yusafzais while in the Crest of Muhammad Akbar Khan respondent the words "Hoti" and "Yusafzai" are written on each side of the Arabic quotation. Even if the Crests be the same, still one cannot understand how can it be said that simply because of that fact the pamphlet could only be attributed to Muhammad Akbar Khan respondent, and to none else. It is the case of the learned Advocate‑General and Kazi Muhammad Shafi, that these Crests are engraved on buildings situated at public places, where anybody and every body can go and copy the Crests. The possibility of somebody else copying the Crest of Muhammad Akbar Khan, though not exactly, and printing it on the Manshoor cannot be excluded and has in fact not been excluded by any evidence adduced by the two applicants. The circumstances, therefore, cannot carry the applicants' case any further. It is then contended that this Manshoor purports to be the Manifesto of Azad Musilm League Yusafzai Party, and Muham mad Akbar Khan respondent is admittedly its founder, and is therefore, solely responsible for getting it printed and published. It appears that the Azad Muslim League Yusafzai Party sprang up during the last Elections to the Provincial Legislature, which took place in 1951. On 30th October, 1951 Muhammad Akbar Khan made an application to the Election Commissioner N.‑W. F. P., in which he admitted that this Party was formed by him, and that white colour be allotted to it. In his state ment before us too Muhammad Akbar Khan admitted in clear words that he was the leader of the Azad Muslim League Yusafzai Party, but he added that he had no special powers (to exercise) as such. The statement of Agha Muhammad Ali Shah (P. W. 1) Assistant Secretary Political Department, shows that the Azad Muslim League Yusafzai Party was allot ted blue and white colours in the last Elections, and that eight candidates on behalf of this Party contested the Elections. Muhammad Akbar Khan respondent does not seem to have contested the Elections at all either as a candidate for the Azad Muslim League Yusafzai Party or in any other capacity. The statement of Agha Muhammad Ali Shah (P. W. 1) `shows beyond any doubt that Muhammad Akbar Khan respondent who may be the leader or even the founder of the Azad Muslim League Yusafzai Party, is not its only member. If not more, at least eight persons, who fought the Elections as members of this party, are definitely its members. The subject matter of the Manshoor shows that it was more or less a propa ganda for winning the votes of the electorates. It is not only possible but is very highly probable that someone of the eight candidates, who were more interested in the result of the Elections than Muhammad Akbar Khan respondent, had this Manshoor printed and published through Fazal Illabi respon dent for the obvious reasons. In any case, once, it is admitted that the Azad Muslim League Yusafzai Party claims persons other than Muhammad Akbar Khan as its members, then the possibility of those persons getting the Manshoor printed and published without the knowledge of Muhammad Akbar Khan respondent cannot be excluded. It which Muhammad Akbar Khan respondent is a leader or the founder, it cannot be said that the liability of printing and publishing this document rests with Muhammad Akbar Khan respondent either solely or as a member of that Party. It is further argued that in the Manshoor a bitter attack has been made against the then Senior Sub‑Judge of Mardan, Abdullah Jan Mirza, who happens to be a Qadiani by faith. Muhammad Akbar Khan had several cases pending to that Court, and some of them had been decided against him. He had made certain applications for the transfer of his cases from the above Court, and the contents of those applications remarkably are the same as the contents of this Manshoor so far as the attack on Abdullah Jan Mirza is concerned. The facts alleged, even if they are true, cannot possibly lead us to the conclusion that because of them Muhammad Akbar Khan respondent alone can be said to be the author of this document. There may be several other persons holding the same view as Muhammad Akbar Khan does with regard to Abdullah Jan Mirza, and they might as well have contributed to printing and publishing the Manshoor in question. Again it is said that there are at several places references made in the Manshoor to the proceedings of certain Committees, of which Muhammad Akbar Khan was a member. The applicants wish us to infer from these references that the author of this pamphlet was Muhammad Akbar Khan. We, however find no justification for this inference, because any body could have made reference to the proceedings of those Committees which were public even if they were not the members. We have gone into all the circumstances alleged against Muhammad Akbar Khan very thoroughly. They might raise a reasonable suspicion in one's mind that Muhammad Akbar Khan bad a lot to do in the printing and publishing of the ignoble document, but, however grave the suspicions may be, they cannot be treated as evidence in a case. Contempt proceedings are quasi criminal, and so far as possible the same rules of evidence which apply to criminal cases would apply to them. The circumstances which have been enumerated above are capable of two interpretations, and one interpre tation certainly does go against Muhammad Akbar Khan. It is however an established principle of law, that if there are two inferences possible from one set of circumstances, the one which is favourable to the accused should be accepted in preference to the other unfavourable to him. Where the evidence is entirely circumstantial it is the duty of the Court to consider whether the only reasonable inference is the one which is inconsistent with the innocence of the accused, and it is only in that case that it should convict the accused for the offence charged with, otherwise the accused is entitled to acquittal. In the case before us, as exhaustively discussed above, all the circumstances are open to two interpretations, which in our view are equally reasonable, but under the principle enunciated above we must accept the one favourable to the accused, which we hereby do. So far than as Muhammad Akbar Khan is concerned the rule is discharged. Orders announced. A. H. Respondent (1) convicted