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Petitioner: Mirzajawad BEG VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Fakhruddin G. Ibrahim, Sheikh Anwarul Haq, Shafi-ur-Rehman Title: Mirzajawad BEG vs THE STATE Case No.:Criminal Appeals Nos.- K-9 and K-IO of 1979 Criminal Appeals Nos. 37 and
JUDGMENT
Reported As: 1981 SCMR 341 Result: Appeal accepted Judgment JUDGMENT SHAFI-UR-REHMAN, J.-The Government of Sind by two separate orders, both dated 10-12-1974, sanctioned the prosecution of the appellant Mirza Jawad Beg, aged 52 years, under section 16 of the Prevention of Anti-National Activities Act of 1974, and under section 123-A, P. P. C. The trial of the appellant was held by the Special Court constituted under the Supression of Terrorist Activities (Special Courts) Ordinance, 1974 (XVIII of 1974). The two cases were consolidated and the trial of the two charges was joint. The Special Court found the appellant guilty on both the charges, convicted and sentenced him to undergo seven years rigorous imprisonment and to pay a fine of Rs. 5,000, or in default to suffer one year's rigorous imprisonment for the offence under section 123- A, P. P. C. And to five years' rigorous imprisonment for the offence under section 13 read with section 2 of the Prevention of Anti-National Activities Act, 1974. 2. The appellant filed an appeal in the High Court of Sind & Baluchistan, as it then was, under section 7 of Ordinance XVIII of 1974,and the High Court by its order dated 23-4-1976 upheld the convictions and sentences. This Court by its order dated 8-9-1976 granted the appellant leave to appeal to examine the following submission made by his counsel:-- (i) The petitioner's conviction rests on no evidence; in no pamphlet produced in the casenor in any statement attributed to him, he had canvassed the secession of Karachi from Pakistan or, for that matter from the Province of Sind. According to the learned counsel all that he canvassed was a more "glorified" status for the administration in Karachi which he considered to be the proper solution of the various ills from which the administration suffers.
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(ii) The conclusion of the High Court suffers from misreading of the evidence and attaches significance to the expression "right of self-determination out of the context in which it was used in some of the pamphlets. (iii) There is complete want of evidence to support the petitioner's conviction under section 13 of the 1974, Act in that he is not being accused of any terrorist activity. (iv) No competent sanction was obtained from the Provincial Govern--ment which was a condition precedent for the petitioner's trial for both the offences. 3. The criminal cases against the appellant started on the evening of 30-11-1974 when Ghulam Rabbani (P. W. 8) S. H. O. Police Station Soldier Bazar, came across certain evening newspapers, whose identity to date remains undisclosed carrying an article on Metropolitan Government in Karachi. He directed his subordinate Mushtaq Ahmad (P. W. 2) Moharrir Head Constable to get hold of other similar publications. The Moharrir Head Constable produced at 5-30 p. m. The Daily Hurriat of 30-10-1974 (Exh. D) which carried an article on the same subject. It was seized Another Constable Muhammad Hussain (P. W. 3) produced certain pamphlets relating to "Karachi Shebri Hakoornat". These pamphlets were exhibited as Exhs.4/D to 4/J An envelope containing the map of Greater Karachi was also produced by the same Constable. A case was forthwith registered at 7-45 p. m., the date of occurrence being shown as "before" 30-11-1974. A raid was conducted at the office of the "Tehrik" and pamphlets in Urdu and English and Gujrati were recovered in bundles, in all, 35, along with rubber-stamps, paper badges etc. It was also reported that the appellant had been distributing these pamphlets at the Mausoleum of Quaid-i-Azam. The investigation was conducted by Ghulam Rabbani (P.W.8) S.H.O. Supervised and finalized by Sardar Abdul Aziz D.S.P.,(P.W.1) who placed the record of investigation before the Home Secretary to the Government of Sind and obtained the sanction for the prosecution of the appellant. 4. At the trial the prosecution examined eight witnesses. Sardar Abdul Aziz (P.W.1) D.S.P Jamshed Quarters, claimed to be an undergraduate Department in various capacities. On reading the pamphlets Exhs.4/D he said that effect was created on my mind that the publisher of these documents wanted to propagate and advocate the ideas of secession of Karachi from Pakistan. I also concluded that the accused tried to influence the public to act in a prejudicial manner and abolition of the sovereignty of Pakistan in relation to District of Karachi. He did not verity the family background or antecedents of the appellant. He did not attempt to find out who were associated with the appellant in the movement ---Tehrik Shehri Hakoomat--- and he supervised the investigation and at the end of it submitted the record to the Home Secretary for obtaining the sanction for prosecuting the appellant in court. 5. Mushtaq Ahmad Moharrir Head Constable (P.W.2) on the direction of the S.H.O Ghulam Rabbani (P.W.8) procured Hurriat dated 30-10-1974, containing the article Exh.D. Muhammad Hussain (P.W.3) another constable had seen the appellant distributing the posters. He obtained these and submitted them to the S.H.O Nazar Hussain (P.W.4), a welder by profession and formerly Chairman of the union committee was invited by the appellant to join ---Tehrik Shehri Hakoomat--- but he did not in fact join it. He was a recovery witness to the pamphlets and the bundles of posters etc. On search form the office of the Tehrik. Sadaruddin (P.W.5) an owner Taxi driver with ability to read Urdu and English but having ability to write only Urdu stated about the appellant distributing these pamphlets near the Mausoleum of Quaid-i-Azam on 30-11-1974. He claimed that after reading the pamphlets he got the impression that the pamphlets advocated secession of Karachi and as he did not like it he tore and threw them away. Kalimul Hassan (P.W.6) stated about having printed at his press the various posters and pamphlets etc. Recovered form the office of the Tehrik and this he said he had been dong since July 1972. He claimed that he did not consider the publication as breach of any law and for that reason printed them. Azhar Siddiqui (P.W.7) witnessed the recoveries
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from the press on 2-12-1974. The last prosecution witness in the case was Ghulam Rabbani S.H.O. (P.W.8) who recorded the F.I.R and conducted the investigation. 6. The plea of the appellant at the trial was that belongs to a respectable family had been associate with the Pakistan Movement and had been close to the politicians then in the forefront spearheading the movement for Pakistan. He was elected a Basic Democrat and then a member of the Karachi Divisional Council and according to him at that stage he came directly in contact with the local problems of Karachi city. In an effort to study the functioning of the local Government else where he claims to have visited Japan and almost all the European countries Canada and United State of Amercia an made for months a thorough study of similar institution there. His efforts according to him received an impetus when the Canada Government showed interest and assured financial support to Pakistan Government at the international conference of metropolitan cities held in Toronto. The official delegation from Pakistan attending his conference included Mr.Hatem A. Alvi (D.W.1). At another levels also according to him this particular aspect of the problem in relation to Karachi was examined once by Inayatullah Committee then by Zaiuddin Committee and by Akhtar Hussain Committee. On the basis for big cities like Karachi and Lahore and prepared a paper (copy Exh G) and read it in the symposium organized by the Master Plan Department of the K.D.A. The draft proposals for the proposed autonomous Karachi Metropolitan Government as mentioned in pamphlets Exh 4/D and 4/E were formally placed before the citizen of Karachi and the Government at a press Conference held on 9-12-1972. He admitted to have then launched the movement ---Karachi Muthidda Mahaz--- later redesignated as ---Tehrik Shehri Hakoomat--- incorporation his version of the Metropolitan Government. All the concerned Department of the Government were supplied with the literature which was later considered offensives. He admitted having held public meetings at various places after obtaining permission giving of press statements and in the process always abiding by the law. He claimed to have enlisted the support of responsible people for this movement some of whom were produced by him in his defence. 7. The appellant categorically denied having ever sought the secession of Karachi. On the contrary he said that he had always been advocating the continuance of Metropolitan Administration of Karachi as a part of Sind Province. He explained the accusations against him by filing a written statement and then additional written statement to supplement his oral statement in court. He produced in defence ten witnesses, six of them are journalist who stated about the various news items appearing in Dawn Jang Mornings News and Hurtiat with regard to the Tehrik and the statement made by the appellant from time to time and reported in these dailies. Four others were persons learned and experience in the affairs of the country particularly in law and administration.; Hatim Alvi (D. W. 1), had a long association with the local Government at various stages. He had published an article "Local Metropolitan Government for Karachi" which appeared in the Morning News (Exh. 13/I) on 26-5-1973. He had also subscribed to a joint statement calling for the establishment of Metropolitan Government for Karachi or, the lines and pattern of big city local Govern--ments elsewhere in the world with the citizens controlling their affairs including finance "as carmarked and adopted universally". It was thought by him that with a democratic system of teal local self-Government alone, conditions conducive to establishment of progressive, prosperous and ideal society could be provided and "after the establishment of the proposed city Government here the present sense of insecurity and neglect among the citizens would be washed away and they would begin to solve all their economic and social problems with interest and diligence through their chosen representatives". He also claims to have shared and sympathised with the efforts made by the appellant and his movement particularly through the pamphlets Exhs. 4/D to 4/J. According to this witness "the object of the pamphlets which are the subject-matter of this case, is only to educate the people of Karachi. I have never suspected accused to be disloyal
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to Pakistan. I state that in thought, word and deed he is a loyal citizen of Pakistan". He also stated "I subscribe to the view that the citizens of Karachi have a fundamental right of self-determination but only to the extent of governing local affairs". 8. Mr. Akhtar Hussain (D. W. 2), a retired civil servant, and an Ex. Governor of the Province of West Pakistan, was also a signatory to the joint statement (Exh. 13/D) and he stated that he had submitted "various reports to the Sind Government in regard to the working of Karachi Administration which also included self-Government in relation to this city" He "subscribed to the concept of Metropolitan Government". His concept of Metropolitan Government was not of a Government independent of the Federal or Provincial Government. 9. Mr. Qadeeruddin (D. W. 4), a retired Chief Justice of the West Pakistan High Court, claimed-to be closely associated with the "Tehrik Shehri Hakoomat" and he was also a signatory to the joint statement referred to. He said that "in my conversation with the accused I have never found that the accused wanted or intended to establish a separate Government for Karachi independent of Pakistan. During my conversations I have on the contrary found that the accused had wanted a status of dignity for Karachi, as a part of Sind Province and under the Government of Sind. As regards the expression "self-determination" the witness said that I state that all local self- Governments are founded on right of self-determination. I do not agree that right of self- determination connotes no other concept except the agitation of colonial people to obtain freedom from the subjugator". He claimed some sort of a relationship with the appellant but said that he had visited the house of the appellant only once in his life but the appellant used to visit him more often. 10. Another defence witness was Mr. M. B. Ahmad (D. W. 5) a retired Judge of. The High Court. He considered the objectionable pamphlets "constitutionally proper". The appellant had requested this witness to prepare a draft bill for introducing it in the Legislature of the Province of Sind. The appellant had said to this witness that "he had arranged for piloting the bill in the Legislature through some member of the Assembly". He was also a signatory to the joint statement. He said that "by mere demand of right of self-determination the accused is not advocating for separation of Karachi from Pakistan or Sind. I am aware that Kashmiris are demanding a right of self- determination but I must state that their demand is in a different context". 11. As regards the objectionable printed material on which the prosecution of the appellant is primarily based, it falls into four categories The first category which has been kept back by the prosecution, was of the evening newspapers of 30-10-1974 which attracted the attention of Ghulam Rabbani (P. W. 8). Not even the identity of these newspapers has been disclosed except that the S. H. O. Was able to obtain a copy of the Daily Huarriat dated 3010-1974 which according to him, contained some material with regard to the activities of this "Tehrik". The second category comprises the printed literature in English, formally setting out the genesis, the concept, the philosophy, the structure and functioning of the Metropolitan Government as envisaged by the appellant and towards which the thrust of the movement started by him was directed. These are the pamphlets (Exhs. 4/D and 4/E). The third category comprises similar documents in Urdu and Gujrati (Exh. 4/G and 4/F). These retain the main features of their counterparts in English but had certain embellishments like use of verses here and there, at times warning and caution directed to arouse and sustain interest and an appeal to the masses to feel their responsibility in the matter. The fourth and the last category comprises the supplemental document, like maps, flags and envelopes etc. Illustrating the plan. 12. The Hurriat dated 30-101974 (Exh. D) reported the proceedings of the annual meeting of the regional convenors of the Tehrik and contained a summary of the address of the appellant to the workers. He had emphasized the need for hard work against odds, eschewing of political differences, spread of message of fellow-feeling and brotherhood and advocated for Karachi a
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democratic form of Government adopted all the world over for all such big cities, as according to him, only such a representative institution could attend to and solve the manifold problems of the city. This report has not received much attention in the two judgments now under considera--tion. 13. The next document (Exh. 4/D) bears the heading "The Autonomous Karachi Metropolitan Government, its concepts and advantages". It starts by highlighting the unique position that Karachi enjoys in the matter of being the largest city, most commercial and industrial with highest percentage of literacy, greatest contribution to the big business, industry and being the "only sea port and the only international airport of our country". The attention was next drawn in this pamphlet to the neglect and in attention from which this city has suffered by pointing out that "overwhelming majority of the citizens of Karachi are living in a miserable condition and most of them are even deprived of the barest necessities of life. The cases of such a state of affairs have been summarized under the heading "causes" as "the denial of the right of self-determination indifference to the city's problems by the Governments and undue control of the present Government over local monetry resources". Under the heading "the only solution" is contained the plan which was placed before the citizens of Karachi at a press conference held on 9-2-1972 envisaging " the establishment of an autonomous Metropolitan Government "Shehri Hakoomat" for the greater Karachi area on the basis of the right of self-determination and according for the basic pattern of the present Metropolitan (big city) Governments in other parts of the world". It was made clear that "the original concept is, however, derived from the big city Governments in ancient Rome and Greece which were in fact the first ancestors of modern democracy". In explaining the concept of such a Government the pamphlet recounted "history has proved undisputedly that under undue outside domination and control whether it be by an alien ruler, by a Central Government over the Province or by a Provincial Govern--ment over a Metropoliton (big city) local problems get more and more entangled and complicated". The magnitude of the problem increased with the increase in the population of the city and "the control of the Provincial Government concerned is rendered ineffective and further decentralization becomes indispensable". It was explained in the pamphlet that "as different provinces are autonomous on the basis of self-determination but remain a part of the country and in all national and international matters are always under the control of the Central Government, in the same way a big city having a metropolitan Government, autonomous in the city's administration, finances and development, police and other local affairs, remains an inseparable part of its province". "Not only does the provincial Government keep over all control over the metropolitan administration but the Legislature and, the judiciary remain common among them. Besides, as financial and administrative controls are prescribed between provincial and the Central Governments, similarly, financial limits and the administrative powers are defined and fixed for the metropolitan Government". Under the heading "Concept" the appellant made it clear that "the concept of an, autonomous Metropolitan Government is therefore neither a demand for a separate Province nor of a parallel Government or Government within Government. This form is in fact a middle stage between a Municipal Corporation and a Provincial Administration and has specially been devised for big cities due to their multifarious problems and needs. The elegance of this form of Government is that the citizens gain the fundamental rights to manage their own affairs without being separated from their Province". While recounting the advantages of such a system it was mentioned "as in such form of Government, the city remains an integral part of its province, the citizens enjoy all rights and privileges in the Province as a whole" and after the establishment of an autonomous Metropolitan Government "the Provincial Government is able to get rid of the most complicated and much heavier administrative responsibilities of the big cities and is in a better position to pay its full attention towards development and prosperity ,of more backwards areas of the Province". It was also considered an' advantage by the appellant that by the establishment of such a Government in Karachi the separatist tendencies (in the form of
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separate Karachi Province) developed in a section of the citizens after the linguistic disturbances and labour unrest, shall be curbed successfully because all roads to injustice and exploi--tation of the citizens would be closed for ever". It was said to be a non--political party movement and the basic demands were summarized in the concluding portions of the pamphlets as follows:- "In spite of so many favorable conditions, an overwhelming majority of the citizens of Karachi are living in a miserable condition and most of them are even deprived of the barest necessities of life. No proper attention is paid to town planning, educational facilities; public health, general sanitation, environmental health or control of infectious diseases. Transport problem has become so acute and unbearable that the citizens have to wait for hours together to get a miserable transport and scarcely a day passes without an accidental death in the city. Even after 25 years of the establishment of Pakistan, rehabilitation is still an unsolved problem. Poor citizens are thrown away from the city to outlying places and are forced to live in sub--human conditions without any amenities or basic necessities of life; while rich and wealthy persons are given large plots of land to build palatial houses in the very heart of the city. According to an authentic estimate, about 3 lacs citizens sleep on pavements and footpaths in Karachi, and another over 18 lacs live in improvised hutments without any water connection, drainage or electricity." 14. The other English pamphlet (Publication No. 11) Exh. 4/E provides the "Structure of Working of the Autonomous Karachi Metropolitan Government". The administrative structure projected is that of an autonomous Karachi Metropolitan Government called the Metro-Govern--ment with two subordinate tiers of "District Municipalities" and "Boroughs". The various Departments of the Metro- Government have been set out in para 2 with the governing condition that the Greater Karachi shall remain a part of the Province of Sind and the Provincial Government shall keep overall control over the Metro-Government. The Metro-Government shall however be autonomous in character and shall exercise full administrative powers of the Provincial Government in local matters". The functional distribution has been set out in para. 4 and mentions "Metro-Government shall have absolute powers for appointment/ transfer/punishment /dismissal etc. In respect of all Government servants under its administrative control With regard to Class I Government Servants taken on deputation, powers of their transfer within the local jurisdiction their suspension and grant of leave shall remain with the Metro---Government" .In para. 5 it was made clear that the Metro- Government was to act as the agent to the Central Government in certain Departments and was to be effectively represented on various other authorities within the district of Karachi, like the University of Karachi, Karachi Electric Supply Corporation, P. W. R., Karachi Port Trust etc. As regards the finances and revenues it was provided that "apart from their levy of tax and its collection 35 % will be shared from the principal taxes and another 35 % from the Central Government with regard to certain categories of taxes". There was to be an. Elected assembly called Local Parliament which was the supreme body of the Metro-Government. 15. The two pamphlets in Urdu (Exh. D M and Exh. D I) are vernacular reproductions of the English documents (Exh. 4-D and Exh. 4-E). There are two small posters in Urdu (Exh. 4-G) and (Exh. 4-M) which contain an appeal to them assess in the rhetorical fashion, embellished with verses calling upon them to unite and rise to the occasion before it is too late. 16. The Special Court confined the trial of the appellant to the printed pamphlets exhibited on record, excluding all other evidence concerning the formation of the Muthadda Muhaz, its objectives and methods as ascertain--able from documents other than these. This is clear from the following observations of the Court :- "In regard to such previous statements or press statements I must say that the same will have no relevance in the context of the pamphlets. Those are statements of the accused made at a different time and under different circumstances. The seven pamphlets to me are the basis of the trial."
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The Special Court formulated the question required to be proved thus: "The prosecution has to prove that the accused was either advocating secession of Karachi from Pakistan or advocating to disrupt the sovereignty and territorial integrity of Pakistan or was advocating curtailment or abolition of the sovereignty of Pakistan in respect of Karachi." On a reading of the pamphlets and after ascertaining the intention of the appellant there from the Special Court came to the conclusion that "the seven publications in this case are indeed explosive". Further conclusion drawn was that "in case he means local self-Government by use of such terms, such local self-Government shall be all powerful and as a consequence the Provincial…
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