P (PLP)

MOHAMMED SHAFI J.:--‑This is an application under section 23 of the Pakistan Press (Emergency Powers) Act of 1931, as ;mended by the Criminal Law Amendment Act 1935, for setting ,side an order of the Government North‑Western Frontier Province, dated 31st August; 1950, passed,' under section 3 subsection (3) if the above Act, directing. Sayed Mohammed Hamid, son of Sayed Hamid Ali, keeper of the Hamidiya Electric Press Peshawar, ;o deposit before the 20th of September, 1950, with the District Magistrate Peshawar, security of the amount of Rs. 2,000 in money or the equivalent thereof in securities of the Central Government as he chose. The ground on which the order was passed is mentioned in its preamble, which runs as under :‑‑‑ "Whereas it appears to the Governor, North‑West Frontier Province, that the Article entitled 'Companies have been nationa lized' published in the issue of Aljamiat Sarhad (Peshawar) dated the 19th of July, 1950, contains words of the nature des cribed in section 3 subsection (3) of the above mentioned Act..." Section 3 subsection (3) of the Act mentioned in the preamble is to the following effect:‑ "Whenever it to appears to the Provincial Government that any printing press kept in any place in the territories under its administration, in respect of which security under the provisions of this Act has not been required, or having been required has been refunded under subsection (2) is used for the purpose of printing or publishing any newspaper, book, or other document containing any words, signs or visible representations, of the nature described in section 4, subsection (1), the Provincial Government may, by notice in writing to the keeper of the press stating or describing such words, signs or visible representations, order to keel to deposit with the Magistrate within whose jurisdiction the press is situated security to such an amount, not being less than five hundred or more than three thousand rupees, as the Provincial Government may think fit to require, in money or the equivalent thereof in securities of the Central Government as the person making the deposit may choose". From the above it will be clear that section 3 subsection (3), of the Pakistan Press (Emergency Powers) Act of 1931, does not prescribe the nature of the words, which offend against the law, but only gives power to the Provincial Government to call upon the ‑keeper of any press to deposit with the Magistrate a security if the press is used for the purpose of printing or publishing any newspaper, book, or the document containing any words of the nature described in section 4, subsection (1) of the Act. The learned' Advocate‑General also conceded that it was on account of the carelessness of the drafting authority that section 3 sub section: '(3) instead, of section 4 (1) was mentioned in the preamble of the order in question. Under section 3 subsection (3) the Provincial Government has to state or describe the words; signs or visible representations, in the. notice itself, which it considers offend against the law, , and those should be of the nature described in section 4 subsection (1) of the Act. The only indication as to what did offend against the law given in the notice was that in the Aljamiat Sarhad (Peshawar) dated the 19th of July, 1950, an Article "Companies have been nationalized" was published, which con tained words of the nature described in section 3 subsection (3) of the Act. Section 3 subsection (3) of course shall have to be read as if it was section 4 subsection (1). In response to a notice issued by this Court on the 16th of October, 1950, the Advocate. General N ‑W. F. P. sent a copy of Aljamiat Sarhad (Peshawar) dated the 19th of July, 1950, which according to him contained the words on which the order of the Provincial Government requir ing the press to deposit the security of Rs. 2,000 was passed. We have very carefully gone through the above issue of the Aljamiat Sarhad, but have not been able to find in that any Article under the title "Companies have been nationalized". There is, however, an editorial in this issue of the Aljamiat Sarhad, which has got two heads; one is the principal and the other a sub head. The principal head is "Wazarat‑i‑Sarhad ki qaumi milltiat ka hairat angez amal", which as translated into English would read as follows :‑ "The astounding act of nationalization of the Frontier Ministry". The sub‑heads reads as under :‑

"Kampanion ko qaumi milkiat to banaya giya magar jamhoori ko shakhsi hukumat main diya gia". The phrase as it is carries very little sense, but whatever little sense it conveys it would mean something to the following effect :‑

"Although Companies have been nationalized, yet democracy has been substituted by autocracy". None of these two heads can be read as "Companies have been nationalized". The learned Advocate‑General has told us that it is this Article and no other, on the basis of which the Government has demanded a security from the Hamidiya Press. Now if this is the offending Article then there is no indication as to which are those particular words, signs or visible representa tions to which the Government has taken such a serious exception. Apart from the fact that section 3 subsection (3) itself makes it obligatory on the Provincial Government to state of describe the offending words, signs or visible representations in the notice, equity and justice require that the Provincial Government should state or describe such words in the notice so that the High Court and the public at large should know as to why has a certain restriction been placed on the press, which otherwise has in every free and civilized county a right to be absolutely free and unfettered. It will be ridiculous to say that the Provincial Government took exception to every word and every sentence, however innocent they may be, appearing in this Article. The learned Advocate‑General pointed out that it were only the concluded three lines of the first paragraph which were offensive in their language and on which the security was demanded from the press. This paragraph is as under, and its three lines which are supposed to be offensive are underlined by us:‑

"A few days ago we saw a statement given by Mian Jaffar Shah the Revenue Minister with regard to the Nasarpur Factory, the Nasarpur Canning Factory had been taken from the Company and handed over to the fruit‑growers and accor dingly this Factory has been taken away from the Company and nationalized. In this statement the Revenue Minister stated that there were previously five Directors and even now there will be three Directors from the Government and two from the fruit‑growers i.e. five Directors in all. So far as the manage ment, supervision and the Directors were concerned, no change has been made. Then remains the question of the shares. From the statement it appears that their sphere would be widened. What has to be seen now in as to how far would this be acted upon. If the Frontier Ministry were to take these steps for the benefit of the public and not on account of any personal motives then we would not only be happy but would be proud of the actions of the Frontier Ministry, but when we look at the past conduct of the Frontier Ministry we do not seem to agree with its statement and we are 6ompelled to say that this statement of the Ministry regarding nationalization is only "Faraib our dhoka" (treachery and beguilement) and is based on personal motives." The next difficulty which the learned Advocate‑General had to face was as to against which particular clause in subsection (1) of section 4 of the Act did the Article in question offend. He has, however stated that the Article offends against clause (d) of sub section (1) of section 4, which is to the following effect :‑ "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". As the facts have been narrated above, it will be clear that the authority which issued the notice in question has been exceedingly careless and negligent. The notice as it stands is bad in law, because it not only not gives the correct heading of the Article, but fails to give any indication as to what are those particular Massages which have attracted the drastic action of the Provincial We would have accepted the application on this ground alone and set aside the order as vague and bad in law, if we were not compelled by section 23 of the Act to decide if the document in respect of which the order was made did or did not contain any words, signs or visible representations of the nature described in section 4 subsection (1) of the Act. It has, therefore, to be decided in this case if the Article reproduced above does bring into hatred or contempt the Government, established by law in Pakistan, or the administration of Justice therein, or excite disaffection towards the said Government. Since the Article in question refers to the cabinet of Ministers in the North‑West Frontier Province, the first question is whether it is a Government within the meaning of clause (d) of section 4, subsection (1) of the Act, because if it is not then to bring it into hatred or contempt or to excite disaffection towards it would not entitle the Provincial Government to take any action against the offender under the Act. The word "Government" means both the Central and the Provincial Government vide clause (21) of section 3 of the General Clauses Act of 1897. The expression "Provincial Government" is nowhere defined but it is the same thing as the Local Government, which has been defined in section 311 of the Government of India Act as under :‑‑ "Local Government means any such Governor‑in‑Council. Governor acting with Ministers, Lieutenant‑Governor‑in‑Council, Lieutenant‑Governor or Chief Commissioner as was at the relevant time a Local Government for the purposes of the Government of India Act or any Act repealed by that Act, but does not, save where the context otherwise requires, include any other Local Government, in Burma or Aden." Under section 49 of the Government of India Act, 1935, as adapted by the Pakistan (Provincial Constitutional) Order 1947, the executive authority of the Province has to be exercised by the Governor, either directly or through officers subordinate to him. Under section 50 of the same Act the Governor in the exercise of his functions which would include his functions under section 49 above, has to be aided and advised by a Council of Ministers, which under section 51 shall be chosen and summoned by him and sworn as members of the Council. Previously under section 50, the Governor was to be aided and advised by a Council of Ministers in the exercise of his functions, except in so far as he was by or under that Act required to exercise his functions or anyone of them in his discretion. After the passing of the Indian Independence Act, and coming into existence of Pakistan by the Pakistan (Adaptation of existing Pakistan Laws) Order, 1947, the words "except in so far as he is by or under this Act required to exercise his functions or anyone of them in his discretion" in section 50 are deleted. The result is that the executive authority of a Province now without any exception has got to be exercised by the Governor as aided and advised by his Council of Ministers. The use of the word "said" in section 50 of the Government of India Act, in our view, clearly vests the Ministers with power to exercise the executive authority in a Province just as much as it vests the Governor with such. power. The Local Government or the Pro vincial Government, therefore would be the Governor as aided by his Ministers. The Cabinet of the Ministers would thus be an integral part of the Government machinery in a Province, and would, therefore, be the Government. This was the view taken by a Special Bench consisting of three judges in Hatragadda Rajagopala Rao v. The Province of Madras, reported as A. I. h. 1948 Mad. p.

326. It based its decision an another ruling of a Special Bench of the same High Court, the details of which are, however not given in the judgment. A con trary view was taken in Emperor v. Hamendra Prasad Ghosh a case reported in A I. R. 1939, Cal. p. 529, by a Special Bench. That was, however, a' case under section 124‑A Indian Penal Code, and their Lordships were considering the position of the Cabinet of Ministers keeping in view the definition of "Govern ment" given in section 17 of the Indian Penal Code. Obviously the definition of "Government" as given in the above section cannot be taken into consideration, while deciding a case under the Indian Press (Emergency Powers) Act. In any case, it appears that their Lordships in that case completely lost sight of the definition of the "Local Government" given in section 311 of the Government of India Act, under which the‑Cabinet of the Ministers clearly is the Government. As has already been observed the Provincial Government has taken exception to the following passage as has been disclosed to us by the learned Advocate‑General in the Article in question:‑ "But when we look at the past conduct of the Frontier Minis try we do not seem to agree with its statement, and we are compelled to say that this statement of the Ministry regarding nationalization is only. "Faraib our dhoka (treachery and beguilement) and is based on personal motives". We are, however, very doubtful if tic Provincial Government and for the matter of that the issuing authority had in fact taken exception to this or any other portion of the article, because the mentioning of the wrong title of the Article in the notice and the quotation of wrong section therein connote absence of consideration by it: Be that as it may, the question for decision is, whether the passage quoted above brings into hatred or contempt the Cabinet of Ministers or excites disaffection towards it If we find that it does, the notice would perfectly be valid and in order. In every free, civilized and progressive country the press should have the utmost freedom in every respect, but it should under no circumstance be permitted to induce people to cease to obey the law and to cease to uphold lawful authority. Nowadays when the Governments in the Provinces are formed by one Political party or the other, the press can by all constitutional and lawful methods seek to overthrow one Government for another, but it cannot be permitted to disturb the tranquility of the Stag; or jeopardize its independence in any way. While it is the duty of every individual living in a free State to see, be he the Minister or not, that the liberty of the press is very jealously guarded, it is the duty of the press to see that that liberty is not abused. In order to raise a country in the esteem of another country it is the bounden duty of the press of that country to be honourable, respectable and responsible in its tone, discussions and criticism. No press in any respectable and honourable country should be vulgar, irresponsible and foolish. In the case under consideration the Article complained of does disapprove the method of the Frontier Ministry in nationalizing the Factories and in expressing this disapproval it has certainly used the language which is loose irresponsible and may be it is very strong and bitter, but giving it a free and liberal interpretation and taking it as a whole we do not think that it gives the impression to a man of ordinary common‑sense that it brings into hatred` or contempt the Government established b‑ law in Pakistan or excites disaffection towards it. The Provincial Government would have been well advised if they had treated this article with the contempt that it deserved. We consequently hold that the Aljamiat Sarhad of the 19th of July, 1950, did not contain or visible representations of the nature described in section 4, sub‑section (1), and we, therefore, set aside the order of the Provincial Government dated 31st August, 1950, demanding from the petitioner security of Rs. 2,

000. In view of some very difficult questions involved in the case, ewe leave the parties to. bear their own costs. K. M. A. Petition Accepted.