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Petitioner: MAHMOOD AHMAD ABBASI VS Respondent: THE GOVERNOR OF WEST PAKISTANHonorable Justice WAHIDUDDIN AHMEDA. Aziz,Muhammad Halim A. A.-G.
1968 P Cr
1968 P Cr. L J 1139
[Karachi]
Before Inamullah Khan, Wahiduddin Ahmed and A. S. Faruqui, JJ
MAHMOOD AHMAD ABBASI‑Applicant
versus
THE GOVERNOR OF WEST PAKISTAN- Opponent
Criminal Miscellaneous Application No. 217 of 1963, decided on 22nd‑November 1965.
(a) Press and Publications Ordinance (XV of 1960), S. 23 -- Right of every citizen to express himself freely on controversial religious and historical questions‑Such right, however, must not exceed limit of fair criticism nor be expressed in immoderate and intemperate language‑Whether particular piece of writing falls within mischief of penal law‑Question to be appreciated by reading such writing as a whole in fair and liberal spirit.
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 intemperate 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 endeavoring 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.
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.
In re : The Daily 'Ehsan' P L D 1949 Lah. 282; Working Muslim Mission and Literary Trust Lahore v. Crown P L D 1954 Lah. 724 ; Starkie's Law of Libel and Slander 1897 Edn. p. 624; and Re v. Ramsay and Foote (1882‑86) 15 Cox's Cr. C. 231 ref.
(b) Press and Publications Ordinance (XV of 1960), S. 23 (1) (i), (j)‑Book entitled "Khilafat‑e‑Muavia wa Yazid bin Muavia" forfeited by Government on ground that "it is likely to create or excite feelings of enmity, etc. between two sects of citizens of Pakistan namely Shias and Sunnis"‑Author in impugned passages, while eulogising Amir Yazid and expressing opinion that Hazrat Imam Hussain was not justified in raising banner of revolt against him, indulging in exaggeration and misrepresentation both about dispute of Khilafat and actual tragedy of Karbala and throughout finding fault with Hazrat Imam Hussain on all questions‑Book appearing to be a propaganda literature and entire discussion one‑sided‑Author, who cannot be described as an impartial historian or research student alone, exceeding limits of fair criticism‑Book likely to hurt sensitive Shia community and create bitterness against author and persons of his way of thinking --Impugned passages, held, do fall within mischief of cl. (j) of S. 23 (1)‑Such offensive passages, however, likely to hurt even an average Sunni and views expressed cannot therefore be held to "create or excite feelings of enmity, ill‑will or hatred between Shias and Sunnis"‑Suchf eelings may arise against author or persons of his thinking (Yazidis)‑Book, held, not forfeited on valid ground and order liable to be quashed‑[By Majority‑Per Wahiduddin Ahmad, J., Inamullah, C. J. agreeing ; A. S. Faruqui, J. dissenting].
Working Muslim Mission and Literary Trust Lahore v. Crown P L D 1954 Lah. 724 ref.
A. Aziz for Applicant.
Muhammad Halim A. A.‑G. for Respondent.
Dates of hearing : 5th and 6th April 1965.
JUDGMENT
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‑Muavia wa Yazid", which has been forfeited under section 36 of the Press and Publication Ordinance, 1960. by order of the Governor of West Pakistan, dated 6th February 1963, published in the extraordinary issue of 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 `Khilafat‑e‑Muavia wa Yazid bin Muavia' by Mabmood 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 writing of the said book fall within the meaning of clauses (i) and (j) of subsection (1) of section 23 of the Press and Publication 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 Ahmad 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 sub mitted that portions of the book justify and praise the Khilafat of Hazrat Amir Muaviah 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 in 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 of Islam. Further at pages 3 and 7 of the book there are reference to the effect that the 'Sabais' (who were inimical towards Islam) were successful in making Hazrat Ali do whatever they wanted and further at page 31 there is a mention of the fact that Hazrat Ali had not performed any Haj and had not acted as the Amir of Haj as he had left Madina and made Koofa the seat of his Khilafat while both Hazrat Amir Muaviah and Yazid had performed Hai and the functions of Amir of 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 Muaviah'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 the Caliph by all Muslims, Hazrat Imam Hussain had no justification to rise against him and in doing so and laying 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 belittle 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 connec tion 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 herein 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 boo k that at number of places it unjustly praises and justify the Khilafat of Hazrat Amir Muaviah and his son Yazid. It has discussed the conduct of Hazrat Ali and Hazrat Imam Hussain on the dispute of Khilagat 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 Koofa 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 well‑known old Historians and Jurists and as many as 90 from original sources. He pleads that the main object of the book into bring out the salient features of the Omayyads periods 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 narrat ing 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 of 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 Publication 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 contained any words, signs or visible representations which .
(i) tend directly and indirectly to bring into hatred or contempt the Government established by law in Pakistan or 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 populations of any regions or parts of Pakistan, or between different communities, sects, classes or sections, of the citizens of Pakistan, or ..
Explaination.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 o: 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 contain any words, signs or visible representations 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 hook 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, section25, 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 sub section (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 lave 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 vas made did or did not contain any words, sins 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 sand 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 event 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 to the heart, attach writing cannot be considered to be offensive. The learned counsel farther contended that the duty of the courts or law ix 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 decision of the Lahore High Court In re: Daily Ehsan (P L D 1949 Lah. 282) and working Muslim Mission and Liberary Trust, Lahore v. Crown (PLD 1954 Lah 724) under section 4, Press (Emergency Powers) Act (1931). He also relied on certain passages in Starleie's Law of Libel and Slander ;at page 624 (1,897 Edition) and on the observation of Chief Justice Coleridge In Re v. Ramsay and Foote ((1882-86) 15 Cox s Cr.C 231), It is not necessary to reproduce these passages because the lair on the subject has been fully discussed by Cornelius, J., as he then was in the case of the Daily 'Ehsan' In that case the Court was considering the effect of 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 seas in the following terms,‑‑‑
4(1) Whenever it appears to the local Government that any printing‑press its 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 and, words, signs or visible representation 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 or enmity of hatred between different classes of His Majesty's subject ; 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 tai 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 he words of the nature describes 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 e articles the writer criticised 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 she 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 44 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 All 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 froth 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 savours of idolater 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, connec tion the learned judge discussed the principles applicable cases. Cornelius J., as he then was observed at page 295 of the report that-----
"The discussion ref 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 effects 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 ratiocination 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, accom panied 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 well‑advised or misguided."
7. Similarly Kayani; C. J. in the case of Working Muslim Mission and Literary Trust, Lahore v. Crown, recognised the right 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…
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