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Criminal Miscellaneous Petition No. 297 of 1964, decided on 10th May 1965.

, S. 2‑Offensive writing printed and published about one month before matter taken to Court‑Editor, printer and publisher cannot be held guilty of contempt of Court in respect of such writing.

Advocate‑General West Pakistan, Lahore v. Shabir Ahmad Advocate and others P L D 1963 S C 610 and R. v. Griffiths and others Ex parte Attorney‑General (1957) 2 A E R 379. distinguished.

Muhammad Haleem, A. A.‑G. for the State..

G. H. Abbasi for Respondents.

Date of hearing: 6th May 1965.

This is an application by the Additional Advocate‑General West Pakistan, Karachi, under section 2 of the Contempt of Courts Act of 1926 praying that the two respondents named, therein may be held guilty of Contempt of Court and suitably punished.

2. The material facts giving rise to this application may be summarised as under:‑‑The respondent No. 1 Maher‑ul‑Qadri is the Editor of a monthly journal entitled "Faran" and the respondent No. 2 Sarwar Hussain is its Printer and Publisher. On 21‑12‑1963 the respondent No. I wrote an editorial for publication in the issue of this journal for January 1964 entitled "Naqsh‑e‑Awwal". The January 1964 Issue was printed in the last week of December 1963 and on 30‑12‑1963 a copy of this issue was posted to the Secretary, Information Department, Government of West Pakistan. That same day, copies of this issue were also posted to its various subscribers throughout this country. On 2‑1‑64 the January 1964 Issue was distributed locally and on that same day a copy was posted to the District Magistrate, Karachi. On 6‑1‑64 the Government of West Pakistan promulgated its Notification No. S. O. Spl. .1 (2)/64 declaring the Jamaat‑e‑Islami to be an unlawful association under subsection P L D 1963 C 610 of section 16 of the Criminal Law Amendment Act, 1908 (XIV of 1908). On or about 26‑1‑64, Writ Petition No. 70/64 was filed in this High Court on behalf of Jamaat‑e‑Islami impugning the validity of this notification. It is the case of the petitioner that the editorial under the caption "Naqsh‑e‑Awwal" appearing in the January 1964 Issue of this journal contained material justifying the activities of the Jamaat‑e‑Islami and thereby attempting to prejudice the subscribers and readers of this journal against the decision taken by the Government of West Pakistan and published in its notification referred to above declaring the said Jamaat to be an unlawful association. It is further submitted in the application that the publication and circulation of this journal containing the offensive editorial during the pendency of Writ Petition No. 70/64 amounted to Contempt of Court in that it was calculated to interfere with the due course of justice and was likely to prejudice the public against the Government.

3. I have heard Mr. Haleem, Assistant Advocate‑General in support of this application and Mr. Ghulam Hussain Abbasi the learned advocate appearing on behalf of the two respondents. I have also carefully perused the English translation of the alleged offensive passages in this editorial as marked out by the learned Assistant Advocate‑General.

4. Before expressing any opinion on the editorial in question and on the allegedly offensive passages to which my attention has particularly been invited, it seems to me some doubtful whether a person can be punished for Contempt of Court for writing an article concerning a judicial proceeding and printing and publishing it about a month before the matter is taken to Court. From the dates mentioned above it is admitted that the editorial entitled "Naqsh‑e‑Awwal" was written on 21‑12‑63 and appeared in the issue of the Magazine "Faran" which was published on 30‑12‑63. At this time, the Jamaat‑e‑Islami bad not been banned by Government and so there was no question of any Court proceedings coming into being as a result of the banning of this association. The notification of the Government of West Pakistan declaring the Jamaat‑e‑Islami to be an unlawful associa tion was published on 6‑1‑64 and Writ Petition No. 70/64 challenging the validity of this notification was filed on or about 26‑1‑64. It is, therefore, of the utmost importance for the purpose of disposing of the present application under section 2 of the Contempt of Courts Act, that the petitioner should establish some connection or nexus between the publication of this editorial and the subsequent legal proceedings challenging the validity of the notification of the Government of West Pakistan dated 6‑1‑64.

5. I put this point to the learned Assistant Advocate -General at the very commencement of his arguments in support of this application and he replied that it was not a necessary ingredient of the offence of Contempt of Court that the contempt should be committed while the legal proceeding is in progress. Mr. Halim contended that it is sufficient that a legal proceeding was imminent and in support of this contention of his he relied upon the Judgment of our Supreme Court in the case of the Advocate‑General West Pakistan, Lahore v. Mr. Shabir Ahmad Advocate and others P L D 1963 C 610. He particularly invited my attention to a passage in this judgment appearing at page 620 which is in these words: ‑

"Apart from this, I am unable to accept the contention that in low knowledge of the pendency of the proceedings is a necessary ingredient of the offence of Contempt of Court. All that is necessary to show is that a proceeding was actually pending at the time or was imminent. It is not necessary to establish that the contemner had actual knowledge of the pendency of the proceedings".

6. On the other hand, Mr. G. H. Abbasi appearing on behalf of the respondents has contended that his clients are not officers or even members of the Jamaat‑e‑Islami and that, therefore, it was impossible for them when writing and printing and publishing the alleged offensive editorial to foresee two future events, namely (i) the banning of the Jamaat‑e‑Islami by a Government Notification and (if) the filing of a writ petition assailing the validity of the said Government Notification. Mr. Abbasi has pointed out that in the last week of December 1963 and even in the first few days of the New Year 1964, there was no legal proceeding concerning the Jamaat‑e‑Islami pending in any Court. Nor was there at that time any Government Notification banning the said Jamaat. Mr. Abbasi finally argued that the facts of the case of Shabir Ahmad Advocate are clearly distinguishable from the facts of the instant case because Mr. Shabir Ahmad was the advocate of the party concerned) as such he was closely connected with his clients and, therefore, he must have known when the decision of the High Court went against his clients that they would go in appeal to the Supreme Court. He invited my attention to a passage in the judgment of the Supreme Court in this very case of Mr. Shabir Ahmad, namely: ‑‑

"As I have shown earlier, in the present case there is sufficient material on the record to come to the finding that the said respondent must have known that his clients were going to move this Court if the decision in the High Court went against them. I am not, therefore, convinced that the respondent had no knowledge of the imminence of proceedings in this Court."

7. I find myself in agreement with these submissions of Mr. G. H. Abbasi. I feel that the facts of the instant ease are clearly distinguishable from the facts of the case of Mr. Shabir Ahmad Advocate. I am impressed by the fact that both the writing and publication of the alleged offensive editorial occurred almost a whole month before Writ Petition No. 70/64 was filed in Court. I am, therefore, not satisfied that the present respondents could be held guilty of contempt of Court in respect of the editorial appearing An the January 1964 Issue of the Magazine "Faran".

8. But, this is not all. Mr. Halim, the learned Assistant Advocate‑General further contended that even if it be held as above that the respondents wrote, printed and published the offensive editorial before the matter was put into Court, yet they would still be guilty of contempt for doing nothing towards withdrawing the said issue of this Magazine from publication after they had come to know that the case had gone to Court. He placed before me an English Case of R. v. Griffiths and others, Ex parte Attorney‑General ((1957) 2 A E R 379) and invited my attention to the conduct of the respondents in that case. As soon as they became aware that a magazine which they were distributing contained an offensive article concerning a pending Murder Trial, they took every step in their power to stop its circulation and to withdraw it from publication. I have perused this English Case and I find that the facts there were that while a trial for alleged murder was in progress at the Central Criminal Court, a magazine was put on sale in England containing an article in which there was matter prejudicial to the accused and that was not given in evidence a his trial. I am of opinion that this circumstance is sufficient for distinguishing this English case from the facts of the present Case. In the English case the magazine was distributed in England during the pendency of the murder trial whereas in the present case this journal was published and distributed almost a month before there was a proceeding in any Court.

9. In the result, therefore, I find no force in the present Criminal Miscellaneous Application which is hereby dismissed and the notice discharged.

application dismissed,

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