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Petitioner: ALTAF HASSAN QURESHI AND Another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Ghulam Mujaddid Mirza, Mazhar-ul-Haq Title: ALTAF HASSAN QURESHI AND Another vs THE STATE Case No.: Criminal Appeal No. 1076 of 1976 Date of Judgment:1977-03-20 Reported As: PLD 1982 Lahore 468 Result: Appeal allowed
JUDGMENT
JUDGMENT GHULAM MUJADDID MIRZA, J.-Altaf Hassan Qureshi and Dr. Ijaz Hassan Quresbi, were convicted under rule 49 of the Defence of Pakistan Rules, 1971 (hereinafter referred to as the Rules) by the Special Tribunal constituted under section 8 (1) of the Defence of Pakistan Ordinance, 1971. Both were sentenced to two 3 ears' R. 1. And a fine of Rs. 10,000 each ; in default of payment of fine to undergo further imprisonment for six months each. The convicts have filed a joint appeal against their conviction and sentences. 2. The appellants are real brothers. They are journalists by profession. Altaf Hassan Qureshi is the Printer and Publisher of Urdu Monthly Magazine known as Urdu Digest. Dr. Ijaz Hassan Qureshi is the President of the Editorial Board of the aforesaid Magazine. 3. In the March 1976 Issue of Urdu Digest, three articles appeared which were :-- Both the appellants were hauled under rule 49 of the Rules, for publishing the said articles, because according to the prosecution the aforesaid articles amounted to prejudicial "reports". 4. In all seven witnesses were examined by the prosecution to prove its case. According to the evidence of Abdur Rehman, Section Officer, Govern--ment of the Punjab, a complimentary copy of Urdu Digest (March 1976 Issue) (Exh. P. G.) was received by him from the Provincial Information Department ; Information Department receives such copies and those are forwarded to the Home Department. This is the usual practice. The Section Officer read the Digest, found the aforesaid three articles objec--tionable and brought it to the notice of Mr. Taqi-ud-Din Pal, Deputy Secretary, Home Department. According to the Deputy Secretary it was he who had passed on the copy of March Issue, which was received through the Information Department, to the Section Officer and the same was
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brought back to him along with the file pertaining to Urdu Digest and the Deputy Secretary was told that some of the portions were objectionable. The Deputy Secretary examined the Magazine, underlined the objec--tionable portions in the three articles and submitted the case to the Home Secretary who directed that a case should be registered against the appellants. The Deputy Secretary then sent letter (Exh. P. A.) duly signed by him to the District Magistrate together with the photostat copies of the three articles (Exhs. PA/1 to PA/10) on which F. I. R. (Exh. P. B.) was recorded by Wilayat Ali, A. S. I. Duty Officer, Police Station, Mozang. He forwarded the copy of the F. I. R. And its enclosures to Ch. Abdul Majid, Inspector through F. C. Muhammad Ali. Investigation was conducted by Ch. Abdul Majid Inspector, Police Station, Mozang. He recorded the statements of the prosecution witnesses, took into possession copy of March 1976 Issue of Urdu Digest, which was produced by Dr. Ijaz Hassan Qureshi and arrested both the appellants. Prosecution produced Hassan Muhammad, Press Clerk from the office of the Deputy Commissioner, Lahore who maintained the record pertaining to Printing Presses and Publications. He produced the record of Urdu Digest. The declaration of the Publisher (Exh. P. B. 1) was filed on 7- 12-1965, and was authenticated by the District Magistrate on 22-2-1966. He also produced the Printer's declaration lExh. P. C. 1) which was authenticated on 4-5-1966. According to the documents, Altaf Hassan Qureshi was the keeper of the Press known as "Urdu Digest Printers". On 20-12-1969, Ijaz Hassan Qureshi submitted application (Exh. P. E.) on which fresh declara--tion (Exh. P. F.) filed by Ijaz Hassan was authenticated by the District Magistrate on 25-5-1970. 5. Altaf Hassan Qureshi admitted before the Tribunal that he was' the Publisher of the magazine as well as the Printer. He also admitted that he was the writer of the three articles, but took up the plea that the articles and the editorial did not amount to prejudicial reports and as such he had not committed any offence. On being questioned as to why the case against him, his answer was :- "All that I have to say in answer to this question, I have reduced into my written statement Exhibit D. C. Which 1 tender before the Court for being placed on the record of the case. This written statement consists of 19 typed leaves and bears my signature. I also produce some books referred to in this written statement. They are (1) Maqabal Hai Aina Exh. D/l, (2) Nok-e-Zuban Exh. D/2; (3) Chhey Nukat Ki Saehi Taswir Exh. D/3, (4) Kooay Siasat Exh. D/4, (5) Kafay Sailab, Exh. D/5, (6) Andesha Hai Dooro Daraz, Exh. D/6, (7) Aeen-e-Baharan Kia Ho Ga, Exh. D/7, (8) Yeh Siasi Jang Hammey Kahan Le Jai Gi Exh. D/9, and (9) The various issues of Urdu Digest Exh. D/9 to Exh. D/99." While pleading not guilty he stated that he would like to produce defence. The other appellant Dr. Ijaz Qureshi denied to be the Printer of Urdu Digest. He also denied that the aforesaid three articles amounted to prejudicial reports and submitted that he had gone through the written statement filed by his brother, Exh. D. C. And that he adopted the same statement in his defence. When questioned "Does your name appear on page 3 of Exh. P. G. As the Printer of Urdu Digest ?." his answer was; "It does not appear as Printer." When further questioned why this case against you, he stated as under;-- "The circumstances under which the case has been brought against me are set out in detail in Exh. D.. C. Which I have already adopted. What I have to say in addition to this is that I am a real brother of Altaf Hassan Qureshi and was publisher of the Weekly Magazine Zindagi. I have been victimized several times as explained in Exh. D. C. While pleading not guilty, he produced five Issues of Urdu Digest (Exhs. D/20 to D/24) to show that those did not bear his name as Printer of Urdu Digest.
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6. Mr. Rafiq Ahmad Bajwa, learned counsel for the appellants, challenged the conviction of the appellant on number of legal as well as factual grounds. His first legal objection was with regard to the framing of the charge. Learned counsel submitted that the original charge was defective and that is why subsequently the words "without lawful authority or excuse" were added. This addition took place after a month and that too in a very casual manner. Learned counsel then drew our attention to the statement of Ijaz Hassan Qureshi under section 342, Cr. P. C. Recorded by the Tribunal, where it was not put to him as to whether he would like to produce evidence in defence. It was further submitted that both the appellants had been denied the right to produce defence evidence. 'The mere fact that the written statement prepared by Altaf Hassan Qureshi was allowed to be placed on the record was nor sufficient proof of the fact that the appellants had been given proper opportunity to lead evidence in defence as required by law. It was argued that the list of witnesses which the appellants submitted was rejected in toto on flimsy grounds. Learned counsel submitted that the Tribunal could curtail the number of witnesses and that too after giving cogent reasons but was not justified in rejecting the entire list. . 7. Learned counsel also challenged the constitution of the Tribunal and argued that it was not properly constituted. Therefore. Entire proceedings were coram non judice and the judgment of the Tribunal was nullity in the eye of law. Even the arrest of the appellants was challenged being in violation of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973. After having addressed us at full length on these legal objections, learned counsel for reasons best known to him gave up all the legal points and submitted that he would like to have a decision from us on merits. 8. In view of the aforesaid position we do not think it necessary to give any authoritative finding on the legal objections, but as certain important facts have come to our notice, therefore, those have to be dealt with. Admittedly the words "without lawful authority and excuse" were added subsequently and that too after the lapse of about one month. Similarly, it is also correct that in the statement under section 342, Cr. P. C. Of Altaf Hassan Qureshi it was never put to him whether he would like to produce any evidence in defence. We are also not satisfied with the manner in which the application of the appellants for summoning the defence witnesses was dealt with. No doubt, it is within the discretion of a Court/Tribunal to curtail the number of witnesses but that does not mean that an accused is to be completely deprived of his right of defence. The objection pertaining to the constitution of the Tribunal was duly noted by the Tribunal, but its decision was deferred and it remained deferred till the judgment was announced. The point pertaining to the arrest of the appellants is also of cons--titutional importance but as this point as well as other legal objections, was given up, we would not like to express any opinion regarding this particular point in this appeal at this stage, but must observe that an arbitrary and general arrest has always been looked down upon by the ordinary law of the land, but now in view of Article 10 of the Constitution, such an arrest stands strongly condemned. 9. The above facts, therefore, show that the manner in which the Tribunal handled the case showed lack of application of judicial mind and the impression one forms is that the Tribunal was in extrordinary haste to con--clude the trial at the cost of the appellants. Before examining the contention of Mr. Bajwa, on merits, we may observe that the case of the prosecution is that the three articles separately, each article in its entirety constituted "prejudicial report". 10. On merits learned counsel submitted that neither of the articles amounted to prejudicial reports. He read each one in extenso. So in order to determine as to whether the three articles or any one of
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them amounted to prejudicial report, it becomes necessary to paraphrase these articles separately and then examine them in the light of the statutory definition of `prejudicial report' as given in rule 42 of the Rules. 11. The first article "OUR ARMY HIGH COMMAND" deals with what had happened, is happening and is likely to happen in the near future with our Army. According to the author "as Pakistan Army play an important role in the security and solidarity of the country, therefore, every patriotic citizen is interested in its proper organization. The bitter events of past had made an ordinary citizen more sensitive. Since the Army started taking interest in the politics, Martial Law was imposed for the second time, as a result of which the country lost its one wing. Changes in the Army High Command lead to different speculations and it would take time to understand their implication. Pakistan is an underdeveloped country. After separation of East Pakistan its area and population had been reduced considerably. As such, there was no justification to expand the High Command. Colossal amount is being spent on its organization, especially for buying the modern equip--ment. Army High Command had been divided into three categories. General Tikka Khan would be the Defence Advisor to the Prime Minister. The scope of his operation had not been defined. In U. S.. A. And U.R this assignment is vulnerable and if General Tikka Khan had been given the same powers then there was no need to have the Chairman of the Joint Chiefs of Staff. The question arises as to how far the Armed Forces .Chief of Staff would be independent in his decisions. It is also worth considering as to whether Tikka Khan after having spent best years of his life as a soldier would be able to discharge his duties so far as his new assignment is concerned and if he was to be there without being effective then there was' no justification to give him the privileged position of a Cabinet Minister. The duties and powers of the Chairman of the Joint Chief of Staff, General Muhammad Sharif, have not been defined. In U. .S. A. This post goes by rotation and all the three Chiefs, turn by turn become the Chairman and the decisions made by the Chairman are binding on all the three forces. In our country the position seems to be different. The Chairman is not answerable to anyone. Similarly, it is not clear as. To what would be his link with the Deference Secretary and how far he will be able to influence the Defence Advisor to the Prime Minister and to what extent the Chief of the Army Staff would be bound by his decisions especially, when the Chief of the Army Staff has no representation in the present set up. All these matters call for explanation and unless they are promptly dealt with the possibility cannot be ruled out that the decisions made by the Army High Command instead of organizing the Army would result in chaos and such a condition during the days of hostility could prove disastrous. It is being rumoured that General Ziaul Haq who is junior Corps Commander is being appointed as Commander-in-Chief of the Army. This fact is of no importance, because President Ayub promoted Yahya Khan-- Lt.-General and on the same day he was appointed as Commader-in-Chief of the Army. There are other important considerations for the selection of Commander-in-Chief. Personalities do not matter. It is the set-up of the Army which counts and that must be raised on sound foundation and for that matter the entire nation is to be taken into confidence. In case the new set-up of the Army High Command is strong then that would meet the demands of the nation, and our army is bound to show its worth. The author then paid compliments to General Ziaul Haq in the following words; The second article Waqat-i-Zawal is very comprehensive. It starts with a new era which certain sections of people describe as `jaded jahaliat'. Country passed through different stages in political field. Islam was exploited simply to grab power. The first instance of which was General Ayub Khan, who after coming into power advocated the cause of unlimited freedom and went to the extent of atheism. When he noticed the approach of his political decline, he suddenly turned over towards
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Islam. In his last days Seerat-un---Nabi conference was held. Number of Muslim Rulers visited Pakistan but then it was too late. Then came the Elections of 1970 when Islam versus Socialism became the slogan of the day, but this position led to such a chaos that the nation lost sight of its goal. Those who were not in favour of Islam crossed all limits. Personalities like Shah Faisal came under criticism. Those who talked about Islam were dubbed as C. I. A. Agents. Righteous people were classified as smugglers and black-marketers. During the past four years, the Ruling Party went through a gradual change. Their first slogan was `Long Live Revolution'. This was replaced by "Allah-o-Akbar". Two years ago a Muslim Summit Conference was held in Pakistan, a very healthy sign of unity. In 1976 Ahmadis were declared minority and recently Prime Minister Bhutto offered himself as the humble servant of Islam. Prime Minister Bhutto is the son of a big landlord of Sind. He had his education in U. S. A. And Europe. As such he got little time to study Islam. His mental approach was towards secularism in which religion is a personal matter of an individual and has no say in the affairs of the people. Therefore, Prime Minister remained aloof from Islamic ideology and that is why when he entered politics his "comrades were like-minded". For them religion was an outdated thing. The party, Prime Minister organized after the exit of Ayub regime, was on the basis of communism and the persons who came in front were those who did not like Islam and wanted a free society. Those were the persons who on the tragedy of East Pakistan said "Thank God ; the ideology of Pakistan had finished." Mr. Bhutto, after coming into power on certain occasions said certain things which were not liked by those who in the movement of Pakistan rendered valuable sacrifices. From his words, one could spell out that he had not much liking for Islam and insisted on the enforcement of scientific socialism in Pakistan and for this purpose radio and television were used. In this background, it appears strange that Mr. Bhutto would have much to do with Islam. Nevertheless, it is for the Almighty to guide him to the right path. It does not take long to see the light from within. It is quite possible that all of a sudden the very mode of thinking of Prime Minister bad undergone a change and this could be on account of tragedy of East Pakistan and he in right earnest expressed his repentance before Almighty and took a firm decision to build Pakistan as an ideal Muslim State. But then the question is : has it so happened, and .The answer to that is to be found by verifying the existing circumstances. In order to ascertain this, .Let us first take the fundamental rights guaran--teed by Islam. This list is very lengthy and it is not possible to enforce all such rights all of a sudden:. For that a period of three to four years is required but let us confine to those rights which could be made operative forthwith. The first such right is the security provided to the society for life, property and honour. This could be ascertained through the media of news--papers. One is at pains to note that the human life was never so cheap as it is today. In broad daylight brutal murders are taking place ; there 2s no respect for human life, the Government itself are suspected to be a party to all this. Political murders are on the increase and had gone untraced. Police, who are the custodian of law and order, life and honour of the citizens, are themselves involved, some of its officials are found to be the culprits. They are on friendly terms with the bad characters, the result is that this organ of the Government bad proved ineffective for providing any kind of safeguard to the citizens ; a state of dreadful insecurity and chaos prevails all round. A God-fearing Government would under no circumstances adopt such an attitude because it is ultimately answerable to the Lord Almighty and would move its entire force to maintain law and order. This is the first and foremost mandate of the holy Qur'an for a Muslim Monarch.
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1t appears that the aforesaid mandate is being purposely ignored that is why murders and abductions is the order of the day ; the Government are the silent spectator. The second important principle of Islam is Administration of Justice and when this is examined in the light of surrounding circumstances, we find that false cases are being registered against citizens at the instance of the Govern--ment. Only two weeks ago, Governor of the Punjab issued directions to the Government officials that they should abstain from registering such cases ; this is a serious state of affairs. Who does not know that a case against Ch. Zahoor Elahi for the theft of a buffalo was registered; then he was involved in the murder case of Anwar Samman and recently a case was registered against him at Karachi Hotel ; all this is mockery of justice. The Government with unnecessary haste are bringing such laws which curtail the political, economic and social activities. It has become very difficult for a citizen to get near the Fountain of Justice. Islam wants even--handed justice ; whereas the Government is bent upon shattering whatever little is left of the administration of justice. For instance, a Government servant can be removed from service without complying with the basic principles of justice ; any magazine or newspaper can be closed down with a single stroke of pen. Campaign for realisation of arrear of taxes for the last two decades had started without first obtaining explanation from those Government officials who were responsible for this negligence. It is also worth-mentioning that Martial Law was imposed for the second time; assessee were required to file their statements at bayonet point, but yet the taxes are in arrears. The basic demand of Islam is that nobody can be convicted unless the offence against him is proved but now-a-days even those persons who do not see eye to eye with the Government are being victimised, even women and children are not spared. When the Courts come to the rescue of the citizens, the Executive adopts certain devices to make such measures ineffec--tive. The impression one gets is that the Government are always on the out--look for some prey. In Islamic Administration of Justice, the position of Qazi or Judge is exalted. He can even summon the Head of the State. In Islamic law there is no difference between the Rulers and the ruled ; whereas in Pakistan powers of the Judges are being curtailed. Some of the limitations amount to creating obstacle in the proper administration of justice. Those rulers. Who believe in the Day of Judgment and have the fear of the Lord do not act like that. Loyalty to Islam can be shown by providing a citizen with full opportunity of equal rights. This step would have removed number of dis--parities from our society and people would have felt secure. Mutual hatred and enmity would have been replaced by the true spirit of Islamic brother--hood. Unfortunately, this was never done ; on the other hand, the policy of the Government is to create two groups, the one is the favourites of the Government, the other detested by the Government. This division has become so rigid that one has to be in either category. Those, who are friends of the Government, are bestowed with favours whereas, those who are disliked could hardly earn their bread and butter. The analysis of the past events shows that the fundamental principles of Islam, peace, security, happiness and freedom are being trampled over by the Government. Need of the hour is to investigate as to how many problems of life had been solved according to the Principles of Islam and what benefits masses had derived so far. The enquiry in this respect reveals nothing. In Islamic States necessities of life are guaranteed to the citizens; problems are solved by means of a just administration, but Mr. Bhutto has not so far been able to finalise even one solid plan so as to provide the citizens with bare necessities. Shelter- less citizens and tenants are being promised plots of land; villagers are being given to understand that they would be provided with the facility of medical aid. No useful purpose would be served in ascertaining as to whether these are promises or a propaganda campaign. The basic question is whether the distribution of plots would be in accordance with the Principles of Islam or on some
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other basis, but so far the impression is that the plots and Kachi Abadis are exclusively within the hands of Dr. Mubashir Hassan, who is openly preaching socialism. The poor are under the impression that whatever they are getting is on account of socialism and not Islam. The labour is also being told that socialism has solved all their problems. Peasants without land are being taken towards communism. On this pretext the Government appear to have a hold on all the economic resources of the Nation but still the problems are being multiplied. In case the differences between the employers and employees would have been solved according to the Principles of Islam, then, as a matter of fact, most of the problems would have been settled amicably. The tenants would have due rights; deserving people would have got roof for their shelter. It so appears that the rules are scared to introduce Islam in practical life. Even in official matters Principles of Islam have no application. As usual everything is the same; liquor is in abundance in banquets, the same pump and show, and luxury is at peak. While making fresh plans moral aspect is completely ignored as it used to be during the British Regime. It was a coincidence that a mosque and a cinema had a common wall, this happened during the tenure of the present Government. The protests lodged by the masses were ineffective. The Government had made no arrangement for moral and religious teaching for its officials; on the other hand, those persons are being patronized who have been rejected by the society and behaved with citizens like a Ferro. Such persons are busy in exploiting the masses because of the support of top notchers. Corrupt, immoral and unscrupulous persons see their death in an Islamic order. They are, therefore, keen to get rid of religious idea. The information media instead of serving the cause of Islam is out to destroy it; Minister of Interior, Khan Abdul Qayyum Khan,…
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