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Criminal Original No. 9 of 1952, decided on 1st July 1952.
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Technical contempt‑Court should not take cognizance at instance of private party unless party satisfies Court that matter published tended substantially to interfere with due course of justice.
The Court should not take cognizance of any technical con tempt at the instance of a private party and to enable the Court to interfere the party moving the Court must satisfy it that the matter published tended substantially to interfere with the due course of justice or was calculated substantially to create prejudice in the public mind.
S. 3‑--Case under S. 500, Penal Code and suit for damages for defamation pending against Editor of Magazine‑--One‑sided version of litigation pub lished in Magazine by Editor‑Publications revealing definite attempt on part of Editor to create atmosphere favourable to him self and prejudicial to complainant‑Contempt of Court.
Coleman v. West Hartlepool Harbour and Railway Company 1862 Law Times Report 766 ref.
S. 3‑Contempt serious but highly technical‑Apology by respondent‑Lenient view.
Manzoor Qadir and S. K. Ahmad for Petitioner.
S. A. Mahmood, Assistant to Advocate‑General for the Crown.
Muhammad Yaqub Ali Khan, Nasim Hussain and Badiuz Zaman for Respondent.
This order will govern Criminal Original Nos. 9 and 10 of 1952, which are petitions by the Lahore Improvement Trust, praying that action under section 3 of the Contempt of Courts Act be taken against the respondent Mr. Aziz Beg, Editor, Printer and Publisher of the Star, an English Weekly of Lahore. The petitions have been instituted in the following circumstances.
In its issue of 19th January 1952, the Star published an article under a banner headline "Improvement Trust Scandal". After an introductory dissertation on the evils of corruption and a reference to the anti‑corruption campaigns that the paper had conducted in the past, the article referred to a transaction of sale of iron scrap by the Improvement Trust to a particular party. It said:‑
"It is a steel scrap story whose actors have still to be intro duced to the public. It is the story of the disposal of the huge dumps and stores of iron and steel and scrap salvaged from the demolished buildings during the months that followed the fateful month of August 1947. Most of these dumps lay in the Shahalmi Gate, Poonch Road, Baghichi Nehal Chand, Crown Cinema and Mohalla Sareen. The Government directed the Chairman of the Trust to encourage building and construction work in Lahore by equitably distributing the useful salvaged material, both among private individuals and iron and steel workshops. With dramatic suddenness however the sale of building material was stopped on the plea that they were anxious to conserve the stocks for Trust construction work. What is more the Trust is alleged to have handed over the entire walled city stocks to one man at the dirt cheap rate of Rs. 150 per ton, in spite of the fact that there were public offers of Rs. 350 per ton. What is still worse, all this happened without informing the public and notifying the sale dates or rates to the potential buyers. It is alleged that even the Poonch Road stores were given to this man, though some of the applicants offered more than Rs, 250 per ton for scrap iron. It is also alleged that a party offered to pay Rs. 200 per ton for scrap iron, the offer was accepted and yet the whole lot was given to the same man, though the material contained many useful girders and rails. Again, the same man is alleged to have secured a huge store of marble products for a paltry sum of Rs. 400 though some of the offers exceeded Rs. 15,000. Even gas plants were included in the general iron and steel category though one gas plant is worth at least Rs. 800."
The article proceeded to enquire who the man who had thus been made the object of special consideration was and how all this could happen under the chairmanship of a man (Mr. Zafarul Ahsan, C. S. P.) about whom it was said that he was the last man to be glued to the chair, and ended by suggesting that the stocks of steel in the possession of the Trust should not be disposed of till iron and steel experts had examined the quality and ascer tained the price of the material, that the Trust records should be immediately sealed by the Government in order to ensure a thorough and impartial enquiry into the whole matter that the Government should not hesitate to eliminate, transfer or even suspend the highest official and that the Chief Minister should personally see to it that these conditions were fulfilled and that the Lahore Improvement Trust again became a trusted department of the Provincial Government.
The imputations in this publication could not be expected to go unchallenged. Accordingly on 21st February the Trust and Mr. Qaiser‑ud‑din, Assistant Engineer of the Trust, instituted a complaint under section 500 of the P. P. C. in the Court of the District Magistrate, Lahore, against Mr. Aziz Beg, the Editor ' of the Star and one Mr. Akmal Mahmood of 22, Circular Road, Lahore. After describing the activities, the objects and the reputation of the Trust the complaint referred to the article that was published in the issue of the Star for 19th January, 1952, and alleged that the article had been published on the instigation of Mr. Akmal Mahmood whose application for purchase of the material had been rejected by the Trust and who, one day before the publication of the article, had been seen closeted with Mr. Aziz Beg, that the article had damaged the business and reputation of the Trust and that the publication amounted to an offence under section 500 of the Penal Code for which both the accused persons were liable to be punished. It seems this com plaint was transferred by the District Magistrate to Mr. Abdul Hayee, a Magistrate 1st Class, who issued process against Mr. Aziz Beg alone and fixed the complaint for hearing on 19th April. On that day a telegram was received from Mr. Aziz Beg from Karachi that he was unable to attend the hearing and, therefore, the hearing was adjourned to 26th April. After the case was adjourned an application was put in on behalf of Mr. Aziz Bog, accused under section 94 of the Code of Criminal Procedure requesting the Court to order the production of certain records and files. The reasons for the production of the records were stated in paras. (1) and (2) of the application to be:‑
"(1) That in this case the Lahore Improvement Trust has alleged that the so‑called insinuations in the printed article in dispute are false and malicious, whereas the respondent intends to bring on record facts which will go to show that responsible officials of the Trust (apart from complainant No. 1) conducted themselves in a manner, which wholly justified the objected article.
(2) That accused will be able to do so if in the interests of justice files and records are summoned before the evidence is commenced in this case."
The applications specified the following five records which were to be summoned:‑
"From the office of the Lahore Improvement Trust.
1. Complete file relating to all sales of old iron in the name of Ghulam Moby‑ud‑Din of Faiz Bagh, along with purchaser's applications, complete noting and orders of Overseers, S. D. Os., T. E. and Chairman, Improvement Trust.
2. File relating to the sale of Bungalow 88, Jail Road, Lahore, which is alleged to have been sold in the name of Begum Zafarul Ahsan or Mr. Zafarul Ahsan, Chairman, Improvement Trust.
3. File relating to the sale of plots Nos. 10, 11, 12 and 13 of land in Gulburg Colony officially called Jail Road Develop ment Scheme'.
4. File relating to the filing up of these plots with debris at the costs of improvement Trust or by any department along with paid up or pending bills of contractors for the filling up of these plots.
From the Police Station Misri Shah, Lahore, through the Senior Superintendent of Police, Lahore.
5. File in the case F. I. R. 303, P. S. Misri Shah along with all documents, receipts and memos of recoveries etc."
The application was presented in the absence of the com plainant and it appears that the records mentioned were ordered to be produced. No order directing their production had, how ever, been served on the complainant by the 26th April when the complaint was called on for bearing.
In its issue of April 26, the Star published what is alleged to be a report of the proceedings held before the Magistrate. The report has the heading "Improvement Trust Sue Star: Defamation and Damages" in the form of a red banner headline and appears on the front and the back pages of the paper. As this publication is the foundation of Criminal Original No. 9 of 1952, it is repro duced in its entirety. It runs thus:‑
"A defamation case against Aziz Beg, Editor, Printer and Publisher of "Star", filed by the Lahore Improvement Trust in the Court of Col. Abdul Hayee, 1st Class Magistrate came up for bearing the other day and was adjourned to April 26. The complainants, under section 500, Pakistan Penal Code, are the Lahore Improvement Trust and Qaiser‑ud‑Din, Assistant Engineer and Attorney of the Trust.
"The allegations of the complainants are: by this article the accused meant that the business and affairs of the Trust were seriously mismanaged and were conducted in a manner which was corrupt, inefficient and improper; that the person in charge of the Trust and those conducting its business and affairs were corrupt; that Government directions were being disregarded and the public bad become infuriated by the manner in which the affairs of Trust were being handled. The article was intended to create and thus in fact created the impression that the Trust was an institution thoroughly corrupt and inefficient.'
It is also alleged that the publication of the said article has seriously injured the business, credit and reputation of complainant, its business has been adversely affected; its credit has fallen and it has been seriously lowered in the estimation of others. Its reputation in the way of business and as an institution has greatly suffered.'
Malik Abdul Aziz, one of Lahore leading lawyers, a prominent Parliamentary Secretary, and a pillar of the Provincial Muslim League Party, known for his honesty, integrity and ability, has taken up the case on behalf of 'Star'.
An application on behalf of the defence has been put in for summoning records from the office of the Lahore Improvement Trust as the accused intends to bring on record facts which will come to show that the responsible officials of Trust con ducted themselves in a manner which wholly justified the object ed article.'
1. The records summoned relate to a complete file about all sales of old iron in the name of Ghulam Mohy‑ud‑Din of Faiz Bagh, alongwith purchaser's applications, complete notings and orders of Overseers, S. D. Os., Trust Engineers and Chairman of the Lahore Improvement Trust.
2. Files relating to the sale of Bungalow No. 88, Jail Road, Lahore, which is alleged to have been sold in the name of Mst. Zafarul Ahsan, Chairman, Lahore Improvement Trust or some of his relatives.
3. File relating to the sale of plots Nos. 10, 11, 12, 13 of land in Gul Burg, officially called Jail Road Development Scheme (some of these plots are believed to have been sold to Mr. I. U. Khan, Commissioner, Multan Division, and Mr. Akhtar Hussain, Financial Commissioner, Punjab).
4. File relating to the filing up of these plots with debris at the costs of Lahore Improvement Trust or by any department with paid‑up or pending bills of contractors for filling up these plots.
5. A police file is also summoned from Misri Shah Police Station which relates to an enquiry made by the police into the allegations that a large quantity of material was sold to one Ghulam Mohy‑ud‑Din by officials of the Lahore Improvement Trust."
The allegation of the petitioner is that this publication has the tendency to prejudice the public against the complainant, that as such it amounts to contempt of the Coutt in which the com plaint is pending and that it is punishable by this Court under section 3 of the Contempt of Courts Act.
The Trust did not rest content with the prosecution of Mr. Aziz Beg, and on 23rd February 1952, it instituted a suit for damages for defamation against him, the New Era Printers Ltd., the Modern Papers Ltd., and Mr. Akmal Mahmood in the Court of the Senior Civil Judge at Lahore. The plaint in the suit con tained substantially the same allegation as had been made in the complaint under section 500 of the Penal Code. This suit came up for hearing on 30th April, but was adjourned as Mr. Akmal Mahmood, the fourth defendant, had not been served, When it again came up for hearing on 24th May, Mr. Aziz Beg complain ed that a copy of the plaint had not been supplied to him with the summons and thereupon the Court ordered two copies of the plaint to be supplied to him and again adjourned the case. In its issue of May 3, 1952, the Star again published on its front and back pages an article which purports to be a report of the pro ceedings in the suit held on 30th April, 1952. This publication is the subject of Criminal Original No. 10 of 1952.
The petitioner's case is that for the reasons stated in the petition which will be presently dealt with the publication consti tutes a contempt of the Senior Civil Judge at Lahore and of the Court of Mr. Abdul Hayee, Magistrate, 1st Class, Lahore, for which the respondent is liable to be deals with under section 3 of the Contempt of Courts Act.
In reply to the notice issued Mr. Aziz Beg, respondent has expressed his regrets and apologies for both the publications in the following terms:‑
"That as shown below the answering respondent, in publishing the reports in question in the weekly magazine 'Star' did not in tend to prejudice the public against the petitioner‑complainant to interfere with a fair trial of the case arising opt of the com plaint under section 500, P. P. C., or the trial of the civil suit for damages brought by the petitioner against the answering respondent. The alleged article in fact purported to report the proceedings of the trial of the respondent in the above noted cases. It is, however, possible that owing to his ignorance of the principles and technical rules of the law of contempt he might have transgressed the limits of the freedom of the press in reporting the proceedings of the said cases in a manner which might technically constitute contempt of Court. Accordingly in spite of his explanation which is set forth hereafter to show that it was neither intended nor calculated to commit contempt of Court, the answering respondent begs to offer his sincerest regrets and apologies to this Hon'ble Court for the publication of the reports in question without joining any issue on this matter."
The accompanying explanation is entirely argumentative and embodies substantially the same arguments as have been addressed by Mr. Yaqub Ali, learned counsel for the respondent.
The point which has been most vehemently repeated before us by the learned counsel for the respondent by reference to a large number of authorities is that the Court should not take cognizance of any technical contempt at the instance of a private party and that to enable the Court to interfere the party moving the Court must satisfy it that the matter published tended sub stantially to interfere with the due course of justice or was calcu lated substantially to create prejudice in the public mind. We agree with Mr. Yaqub Ali that this is the correct position in law and, therefore, the short question we have to determine is whether there has been in this case such interference with due course of justice as would influence this Court to take action, and the deter mination of this question would depend upon whether the publi cations taken collectively or individually are substantially tendentious in the sense that they tend to create an impression in the public in favour of the respondent and against the Trust on the merits of the cases which are sub-judice. It must not be over looked that the respondent who is charged with having committed contempt is himself a party to the proceedings and not merely Editor of a newspaper purporting to report the proceedings of a pending case. Halsbury in the second edition of Laws of England, Volume, 7, citing a large number of authorities at page 8 observes that comments on pending proceedings, if emanating from the parties or their solicitors, are generally a more serious contempt than those corning from independent sources. In Coleman v. West Hartlepool Harbour and Railway Company (1862 Law Times Report, 766), Vice Chancellor Wood referring to the publication of proceedings of a pending case by a party observed:
"I make this observation, that whenever one of the litigants is the party making the statement, that is a very strong prima facie presumption against its being at all fair and that in any case in which a litigant makes a publication, it is exceedingly different from that which a newspaper reporter would publish simply in the discharge of what was his duty. Such a case is quite different; I am not aware that any case precisely like this has occurred before, but I had no hesitation in granting the interim order for the injunction in the first instance. because I was aware of what the course of all the Courts at all times has been with reference to keeping its proceedings pure from this false description of excitement."
Now the article of 26th April, does not mention the date the proceedings of which it is reporting. The report merely takes two incomplete paragraphs of the complaint in which the effect of the publication on the business, reputation and affairs of the Trust was mentioned and makes no reference to the all important allegation, which in cases of prosecution for defamation is the gravamen of the offence, that the imputations in the article were false and had been published maliciously at the instigation of a person whose application for purchase of the stores had been rejected by the Trust and who only a day before the publication had been seen closeted with the respondent.
Referring to the counsel who was to defend him, the respon dent described Malik Abdul Aziz in a special paragraph in thick antique type as one of the leading lawyers of Lahore, a prominent Parliamentary Secretary and a pillar of the Provincial Muslim League Party, who was known for his honesty, integrity and ability and who had "taken up" the case on behalf of the Star. It is not improper for a party to refer appreciatively to the counsel whom he has briefed in the case but to say in a case of this kind that an Advocate who is not only a leading lawyer known for his honesty, integrity and ability, but a prominent Parlia mentary Secretary and a pillar of the Provincial Muslim League Party, has "taken up" the case on behalf of the accused is to give an impression to the public that the engagement of counsel B is not an ordinary professional engagement but that the counsel has decided to defend the accused because he believes him to be the victim of an unfounded prosecution.
Another reason which clearly makes this article tendentious is the reproduction with material omissions and alterations of the application which was made for summoning certain records and files under section 94 of the Criminal Procedure Code. That application realised that correct position when it stated that the real issue between the parties was whether the insinuations in the printed article in dispute were false and malicious as alleged by the Trust or whether they were true and justified. In the article however, this issue is not stated at all and only the words "the accused intends to bring en record facts which will go to show that the responsible officials of Trust conducted themselves in a C manner which wholly justified the objected article" occur. There can be no doubt that the object in reproducing these words of the application was to create a belief in the public mind that these records contained material which would show that the responsible officials of the Trust had conducted themselves in such a manner as wholly justified the article complained of. File No. 2 from the office of the Lahore Improvement Trust was stated in the application to relate to the sale of Bungalow No. 88. Jail Road, Lahore. which was alleged to have been sold in the name of Begum Zafarul Ahsan or Mr. Zafarul Ahsan, Chairman, Improvement Trust, but in the publication, reference to Begum Zafarul Ahsan is omitted and reference to "some of his relatives" is substituted to show that the bungalow had either been sold to Mr. Zafarul Ahsan himself or to some of his relatives. Similarly file No. 3 was mentioned in the application as relating to the sale of plots Nos. 10, 11, 12 and 13, but in the article it was further alleged that some of these plots were believed to have been sold to Mr. I. U. Khan, Commissioner, Multan Division and Mr. Akhtar Hussain, Financial Commissioner, Punjab. In the same way the file summoned through the Senior Superintendent of Police Lahore, was described in the application as the file of the first information report No. 303, P. S. Misri Shah, but in the article it was stated that the file related to an enquiry made by the police into the allegations that a large quantity of material was sold to one Ghulam Mohy‑ud‑Din by the officials of the Lahore Improvement Trust. The application under section 94 of the Code of Criminal Procedure had been granted ex pane and could not be considered to be an important part of the proceedings taken on the 19th and, therefore, the manner in which its contents were amplified and displayed could only be attributable to a desire on the part of the respondent to show to the public that these files contained evidence which would support the defence of justifica tion in a prosecution for defamation. From the contents of the articles on which the prosecution for defamation was based it would be clear that the only specific charge in that publication against the Trust related to the sale of some iron stores and to nothing else. But some of the files mentioned in the application under section 94 which had been ordered by the learned Magistrate ex prate to be summoned bad apparently no relevancy whatsoever to that sale. Thus files 2, 3 and 4 were not mentioned in the application as having anything to do with the sale of iron material and the object of broadcasting this irrelevant material could only be to create a prejudice against Mr. Zafarul Ahsan for his purchasing for himself or his relatives or his friends several plots in the Gul Burg Colony and having them filled up with debris at the cost of the Improvement Trust. The description of the file of the first information report No. 303 was calculated to create among the public the impression that the sale of iron material was so scandalous that a case on the basis of that transaction bad been registered and investigated against the officials of the Trust. Thus the reproduction of the contents of the application under section 94 did not only amount to gross misreporting of the proceedings but also to publication of appa rently damaging material to the public before the question of its liability to production and its admissibility had been deter mined.
The position in Criminal Original No. 10 of 1952 is mole or less similar. The publication in the issue of May 3, of the proceedings alleged to have been held on 30th April in the Court of the Senior Civil Judge, Lahore, proceeds on the same principle; it reproduces two paragraphs of the plant, but makes no reference to the allegation that the imputations in the publica tion were false and malicious and had been made at the instance of 4 person whose application for purpose of the stores had been rejected by the Trust. And so far as that article relates to the proceedings of 26th April, held before Mr. Abdul Hayee, Magistrate, 1st Class, the actual position was that the order requiring the Trust to produce certain files had not been served on the Trust on or before that day. The article, however, reports the proceedings in such a way as to suggest that adjournment of the case hid become necessary because the files required by the defence had not been made available by the Trust. This again was a case of deliberate misreporting because it was not true to state that the files had not been made available by the Trust when no order for their production had been served on it. The terms in which the report referred to the non‑production of the records intended to show that the non‑production was due to a desire on the part of the Trust not to produce them, because their contents would go against the Trust. This article also has a three‑line banner in red reporting that "Punjab's Two Leading Parliamentary Secretaries" were to defend Star's Editor and the reference to the second counsel, Malik Qadir Bakhsh, is on the same lines as to Malik Abdul Aziz in the issue of the 26th April. The article informs the public that "besides Malik Abdul Aziz, Parliamentary Secretary and Secretary of Punjab Assembly Muslim League Party, who has twice appeared as counsel for Star in the defamation case filed on behalf of the Lahore Improve ment Trust, Malik Qadir Bakhsh, a leading Advocate of Punjab, a Parliamentary Secretary, and author of the "Report on Punjab Administration has also decided to defend Star and its Editor". Here again apart from the irrelevant description of counsel, the words "has also decided to defend" imply not that Malik Qadir Bakhsh had accepted brief for the defendant in the ordinary course but that he offered his services in defence of a person who appeared to him to have done some public duty for which he was being unjustifiably prosecuted. Malik Abdul Aziz, the other counsel, is shown in a photograph published in this article as engaged in conversation with the respondent outside the Court room. While it is not for us in these proceedings to consider bow far it is proper or improper for counsel to pose for photograph for publication when be is engaged in a sensational case, the publica tion of such photograph by a party undoubtedly disturbs the calmness of the atmosphere in which all litigation ought to be conducted. There is still a third article published in the issue of May 10, 1952, in which photographs of both counsel are displayed on the front page of the paper and the Advocates concerned are again described as leading Parliamentary Secretaries who were to defend the Editor of the paper.
To sum up. Taken together the three publications are a one‑sided version of the litigation in which the respondent was involved and reveal a definite attempt on the part of the respondents who was a party to the litigation to create an atmosphere, favourable to himself and prejudicial to the Trust, the other party. Nowhere in these three publications is to be found, the slightest indication of what the Trust's case against the respondent was. The two paragraphs taken from the complaint and another two chosen from the plaint are as defamatory as the original article and were published with a view to bring into relief the disastrous effect that that article had produced on the affairs of the Trust, the essential allegation both in the complaint and the plaint that the imputations in the article were false and malici ous having been deliberately suppressed. The publication of the contents of the application under section 94 of the Code of Crimi nal Procedure also discloses a conscious effort by the respondent to show that the allegations of corruption and, favouritism against the Trust were well founded. Not only was the application doctored for publication but the contents of the several files mentioned in it were published before the files had been produced or the question of their relevancy, admissibility and liability to production had been determined. In one of the articles it was even hinted that the Trust was hesitating to produce some of the files. And eulogising of the two counsel, the publication of their photographs and the manner in which their engagement was advertised was calculated not only to cause excitement but to create the impres sion that they had decided to defend the respondent because he was being victimised for having performed a duty by exposing a public, scandal. And all this was done by a person who was himself a party to the proceedings. We are clearly of the view' that this amounted to a serious contempt of the Court in which the proceedings were pending and accordingly find the respondent guilty. Though we take a grave view of the respondent's conduct we cannot overlook the fact that the law of contempt, particularly the kind of contempt with which we are dealing, is highly technical and that the respondent has unreservedly apologised for his conduct. We feel that the ends of justice will be met if the respondent is ordered to pay a sum of Rs. 600, estimated costs of three hearings, or to undergo a week's simple imprisonment in default. Order accordingly.
This order will be deemed to have been passed in Criminal Original 9 of 1952, the material in the other petition having been treated as evidence in the case.
K. M. A. Respondent convicted.
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