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Criminal Miscellaneous Petitions Nos. 72 to 80,,86 and 104 of 1962, decided on 29th November 1962.

(In the matter of petitions under Article 123 of the Constitution of the Republic of Pakistan).

Pleadings‑Contents of petition instituted in Supreme Court, published by newspapers‑Scandalous nature of plead ings scandalising Judges of High Court‑Contempt‑Matter for High Court to consider‑Publication, however, also interference with administration of justice by Supreme Court‑Scandalising portions of petition later on deleted from petition at petitioner's request‑Petition itself subsequently withdrawn‑Publication leading to one‑sided impression in mind of public‑Contempt‑Neither intention of printers or authors, nor truth or falsity of allegations of any consequence‑Responsibility of newspapers to, safeguard due administration of justice‑Publication of pleadings in advance‑Serious interference with decision of case‑Party to case (respondent), supplying copies of petition to newspapers‑Guilt of party greater‑Constitution of Pakistan (1962), Art. 123 (2)‑[The St. James' "Evening Post": Roach v. Garvan (Hall) (1742) 2 Atk. 469; Tichborne v. Mostyn 1868 L R 7 Eq. 55; In re: Cheltenham and Swansea Railway Carriage and Wagon Company (1869) L R 8 Eq. 580; Cheshire v. Strauss In re: Thomas Power O'Connor (1896) 12 T L R 291; Regina v. Odhams Press Ltd. and others Ex parte Attorney General L R 1957 1 Q B 73; In re: Mohandas Karamchand Gandhi and Mahadeo Haribai Desai AIR 1920 Bom. 175 ; Bannett Coleman & Co. Ltd. v. G. S. Monga A I R 1936 Lah. 917 and Saadat Khialy v. The State and another P L D 1962 S C 457 ref.]

Criminal Miscellaneous Petition No. 72 of 1962

Mazharul Haq Advocate Supreme Court instructed by M. Saleem Chowdhury Attorney for Respondent No. 1.

Respondent No.2 in person.

Criminal Miscellaneous Petition No. 73 of 1962 M. Ismail Bhatti Advocate Supreme Court instructed by Siddiq & Company Attorneys for Respondent.

Criminal Miscellaneous Petition No. 74 of 1962

Sharafuddin Faridi Advocate Supreme Court instructed by Bashir Ahmad Attorney for Respondents.

Criminal Miscellaneous Petition No. 75 of 1962

M. Ismail Bhatti Advocate Supreme Court instructed by Siddiq & Company Attorneys for Respondents.

Criminal Miscellaneous Petition No. 76 of 1962

Respondents Nos. 1 and 2 in person.

Criminal Miscellaneous Petition No. 77 of 1962

M. Ismail Bhatti Advocate Supreme Court instructed by Siddiq & Co. Attorneys for Respondents.

Criminal Miscellaneous Petition No. 78 of 1962

M. Ismail Bhatti Advocate Supreme Court instructed by Siddiq & Co. Attorneys for Respondent.

Criminal Miscellaneous Petition No. 79 of 1962

Muhammad Jafar Advocate Supreme Court instructed by Bashir Ahmad Attorney for Respondents.

Criminal Miscellaneous Petition No. 80 of 1962

Nasim Hasan Shah Advocate Supreme Court instructed by Khalilur Rahman Attorney for Respondents Nos. 1 & 2.

Respondent No. 3 in person.

Criminal Miscellaneous Petition No. 86 of 1962 Respondents in person.

Criminal Miscellaneous Petition No. 104 of 1962 Respondent in person.

Criminal Miscellaneous Petitions Nos. 72 to 80, 86 and 104 of 1962.

Tufail Ali A. Rahman Attorney‑General for Pakistan (Fakharuddin G. Ebrahim Advocate Supreme. Court with him) instructed by Iftikharuddin Ahmad Attorney for Petitioner.

Dates of hearing: 11^th, 12th and 19th October 1962.

.‑These 11 petitions have been filed by the learned Attorney‑General of Pakistan in the nature of information s against the Editors and Printers and Publishers respectively of eight newspapers, the Manager of the Associated Press of Pakistan, Lahore and one Syed Ali Nawaz Gardezi, complaining that they had printed and/or caused to be printed on the 31st of July 1962 and/or circulated for printing the contents of a petition and a supplementary petition filed in this Court by Shabir Ahmad, J. of the West Pakistan High Court for the expunction of certain observations made by the learned Judges constituting a Special Bench of the same High Court, who heard the appeal in the case of Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf Khan (P L D 1962 Lah. 558), which was tried by Shabir Ahmad, J. in the exercise of the extraordinary original criminal jurisdiction of the West Pakistan High Court.

The learned Attorney‑General charges that the above named persons had knowledge of the fact that both Syed Ali Nawaz Gardezi and Shabir Ahmad, J., had filed petitions for special leave in this Court on the 30th of July 1962 and as such, had by reason of the publications complained of rendered themselves liable to committal for contempt of this Court under Article 123 (2) of the Constitution, as the publications com plained of were clearly calculated not only to prejudice the determination of the petitions for special leave to appeal filed by Gardezi and Shabir Ahmad, J., but also to scandalize the Judges of the West Pakistan High Court.

It may be mentioned here that some of the newspapers, such as the Pakistan Times, Lahore, the Civil & Military Gazette, Lahore, Daily Kohistan, Rawalpindi and the Pakistan Observer, Dacca, obtained copies of these petitions through their own correspondents, but the others obtained them through the Associated Press of Pakistan, whose representative obtained a copy on the 30th of July 1962, and on the same day circulated verbatim reproductions thereof to their subscribers in Pakistan.

Again, whilst some newspapers printed only substantial portions of these petitions, some abstracts or precis thereof, others either on the 31st of July or the 1st of August 1962, printed in extenso both the original as well as the supplementary petition. A few also added introductory paragraphs to their publications.

Now the case of Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf Khan had already acquired considerable public notoriety not only because of the scandalous nature of the allegations made against Lt.‑Col. Muhammad Yusuf Khan and Mrs. Ali Nawaz Gardezi but also because of the fact that the accused in that case was in addition to being a high Government official of the rank of a Commissioner of a Division, also a Senior Military Officer. There was also some misapprehension from the very beginning that the accused being a friend of the Martial Law Administrator, Zone B might be counting on his protection, as at that time the country was being governed under the Martial Law. The case had, therefore, acquired considerable sensational news value both during the trial before Shabir Ahmad, J. and when it ended in the conviction of Lt.‑Col. Muhammad Yusuf Khan. His acquittal, on appeal, by the Special Bench consisting of three learned Judges of the West Pakistan High Court did not, in any way, diminish its sensational value and it was in this background that, when it came to be known that Shabir Ahmad, J., had also filed a petition for the expunction of certain observations made by the Special Bench as to the mode of trial adopted by him, the newspapers in their anxiety to cater to the public appetite for sensational news matters rushed to print as much of it as they could, particularly, since the allegations contained in these petitions were themselves much more scandalous than the case against Lt.‑Col. Muhammad Yusuf Khan itself.

In order to appreciate the effect that these publications were likely to have created upon the minds of the public with regard to the petitions of Gardezi and Shabir Ahmad, J., then pending in this Court we feel it necessary to indicate that the allegations contained in these petitions of Shabir Ahmad, J., not only suggested that the learned Judges of the Special Bench had, in making the observations against him, omitted to notice the elaborate reasons which he had himself given in his own judgment for each step that he had taken during the trial but had also made statements which were factually inaccurate. They imputed a bias to the learned Judges of the Special Bench and accused them of having acted with the motive of lowering him in the eyes of the world and the authorities with a view to injure his chances of becoming the Chief Justice after the retirement of Mr. Justice M. R. Kayani. In the supplementary petition still graver charges were made against one of the learned Judges constituting the Special Bench and involved even the Central Law Ministry and the Law Minister (who had, it was said, atone stage been advising Lt.‑Col. Muhammad Yusuf Khan in connection with this case) in a conspiracy to lower him in the estimation of the authorities and to ruin his chances of becoming Chief Justice.

After such wide dissemination of these most injurious allegations in the newspapers in both the wings of this country, however, when the petitions actually came up for hearing in this Court on the 15th of August 1962. Shabir Ahmad, J., who appeared in person, readily agreed that there were many matters in his petition, which scandalized the learned Judges of the High Court constituting the Special Bench and that they were not strictly necessary for the purposes of his application for expunction. In this view of the matter those offending portions were, at his request, deleted from his petition and ultimately or the 19th of October 1962, the petition itself was actually withdrawn by Shabir' Ahmad, J. These two events bring into bold belief the vast mischief, which such an irresponsible publication is capable of producing. The publications complained of have left the public with a one‑sided impression, for, in the result neither did this Court have any occasion to examine the correctness or incorrect ness of those allegations nor were the parties affected afforded any opportunity of answering them.

It is in this context that we are now asked by the learned Attorney‑General to hold that these publications had caused incalculable harm and had seriously interfered with the administration of justice by this Court. There can be no manner of doubt that any one reading only the one‑sided view contained in these petitions, coming as they were from the senior most puisne Judge of the same Court, could not but have been left with the impression that even the Judges of the highest Courts in the land were not free from petty personal jealousies and, what is worse, that they were not above allowing such personal considerations to influence their judgments to the detriment of the litigants before them. Furthermore, that if such were the complexes with which the learned Judges approached the task of deciding the appeal filed by Lt.‑Col. Muhammad Yusuf Khan against the judgment of Shabir Ahmad, J., then their decision could not have been a fair and impartial one.

We are, of course, not directly concerned in these proceedings with the species of contempt, which is committed by scandalizing Judges of the High. Court. That may be a matter for the High Court itself to consider but the question which we are now called upon to decide is whether such publications also interfered with the administration of justice by this Court and thereby constituted a contempt of this Court. The law on this subject was propounded in England as long ago as 1742 in the case of The St. James' Evening Post: Roach v. Garvan (Hall) ((1742) 2 Atk, 469) by Lord Hardwicke, L. C. The Lord Chancellor observed, "there are three sorts of contempt. One kind of contempt is scandalizing the Court itself. There may be likewise a contempt of the Court in abusing parties who are concerned in causes here. There may be also a contempt of this Court in prejudicing man kind against persons before the cause is heard. There cannot be anything of greater consequence, then to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters." Again he said that "nothing is more incumbent upon Courts of Justice, than to preserve their proceedings from being misrepresented, nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard." This enunciation of the law, so far as we are aware, has not hitherto fore been departed from. Indeed it has become the locus classicus on the subject both in England and this Sub‑continent.

It was upon this principle that in the case of Tichborne v. Mostyn ((1868) L R 7 Eq. 55). Vice‑Chancellor Wood held that the publication of abstracts of affidavits filed on behalf of a party, before the affidavits had been placed before the Court, with comments thereon amounted to a contempt of Court, if the effect of the publication was to prejudice the hearing of the cause and thus to interfere with the administration of justice.

Similarly in the case of In re. Cheltenham and Swansea Railway Carriaze and Wagon Company ((1869) L R 8 Eq .580), Vice‑Chancellor Malins, after quoting the observations of Lord Hardwicke, given above, held as follows:‑

"That whenever a newspaper either on its own motion or at the instigation of others Publishes the proceedings in a cause before the hearing it tends to prejudice the minds of the public."

In that case a petition for winding up of a company containing charges of fraud against the Directors had been published in extenso in a newspaper before the hearing of the petition.

Again in Cheshire v. Strauss‑In re: Thomas Power O'Connor ((1896) 12 T L R 291), it was accepted that a publication of an ex parte statement such as a statement of claim, not supported by any evidence and before the trial came on, was a contempt of Court. Day, J., observed in this case: ‑

"It was shocking that newspapers should publish such matters as this which had not been before any Court of Justice. There was no excuse for that. It was interfering with the course of justice to make public the statement of claim in this way, which was the ex parte statement of one side."

Coming to more recent decisions we find that even in 1956 Lord Goddard, C. J., relied upon the principles enunciated by Lord Hardwicke for holding that the publication of a newspaper article calling upon the authorities to take action against a particular person who, according to the newspaper, was "engaged in the business of purveying vice and managing street women" amounted to contempt, because on the day the article was published he was actually awaiting trial. The protestations of the Editor and Reporter that they were unaware of the pending trial were held to be of no avail for, the "lack of intention or knowledge was only material in relation to the penalty which the Court would inflict." [Vide Regina v. Odhams Press Ltd. and others Ex parte Attorney‑General (L R (1957) 1 Q B 73)].

This principle has been followed consistently by the Courts in this Sub‑continent also, [vide In re. Mohandas Karamchand Gandhi and Mahadeo Haribai Desai (A I R 1920 Bom. 175), Bannett Coleman & Co. Ltd. v. G. S. Monga (A I R 1936 Lah. 917) and most recently by this Court in Saadat Khialy v. The State and another (P L D 1962 S G 457).

From a review of these decisions it appears to us that the real test in such cases is whether the publication complained o tended or was calculated to interfere with the course of justice any substantial or real manner, either by prejudicing a fair trial or "by prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard." In determining this effect neither the intention of the printers or authors nor the truth or falsity of the allegations contained in the publication complained of is of any consequence, for, what w are concerned with is that we should not permit anyone "to poison the fountain of justice before it begins to flow."

Applying this test to the present case we have no difficulty in coming to the conclusion that the effect of the publications complained of was to cause a grave and serious interference with the administration of justice, for, the allegations made in the petitions of Shabir Ahmad, J., as published in the newspapers, were clearly calculated to lead to the inference that the learned Judges constituting the Special Bench hearing the appeal had not decided the case of Syed Ali Nawaz Gardezi with fairness and impartiality and, therefore, the acquittal of Lt.‑Col: Muhammad Yusuf Khan, against which Gardezi was seeking to move this Court, was neither based on sound legal principles nor had been decided judicially.

Having come to this conclusion we are also driven to the finding that they were thereby calculated to interfere with the fair hearing of the case of Gardezi pending in this Court by L prejudicing the minds of the public in his favour in advance and thus clearly amounted to a contempt of this Court of a most substantial nature.

In this view of the matter it has now to be determined as to what should be the extent of the punishment that should be meted out to the respondents in these petitions. It may be mentioned here that after the notice to show cause had been issued, all the newspapers concerned published unqualified apologies in their respective newspapers and the respondents have since, realizing the gravity of their offence, individually, filed affidavits in this Court tendering unqualified apologies and & throwing themselves at the mercy of this Court. In view, however, of the serious consequences that have unfortunately resulted from these publications we have taken evidence to ascertain as to how the respondents got hold of the petitions filed by Shabir Ahmad, J., in the Registry of this Court. It is the consistent evidence of every one that these copies were supplied by Syed Ali Nawaz Gardezi who had himself received a copy thereof from Shabir Ahmad, J. This copy was supplied to Gardezi, as he was made a party to the petition filed on behalf of the learned Judge and the Rules of this Court require that copies shall be supplied to all parties before a petition ‑is moved in this Court. Gardezi himself has, in his affidavit, also admitted that he had supplied these copies at the request of the press but stated that he did so being wholly oblivious of either the import or the consequences of the allegations made therein and being in an abnormal state of mind after the announcement of the judgment of the Special Bench in the appeal. He too has tendered an unqualified apology and prayed for mercy. But in spite of all these protestations of ignorance off the consequences of the publications by him we cannot help observing that the readiness with which he had copies duplicated in his office for supplying to the gentlemen of the press suggests that having read the petition he could .not have failed to realize the tremendous support that the Judge's petitions gave to his own allegations of the unfair treatment meted out to him by the learned Judges of the Special Bench and, therefore, seized upon this opportunity to show to the public at large what one of their own colleagues thought of them.. In the circum stances, we feel that by freely distributing copies of these petitions to the newspapers and thereby procuring their publication before they were placed before this Court he did clearly intend to prejudice the minds of the public against Lt.‑Col. Yusuf and to interfere with the fair hearing of his case in this Court., We take a serious view of the fact that a person of his education and status should have been so regardless of the serious consequences of his action knowing as he did that the petitions were pending hearing in this Court. His guilt, in. our opinion, is certainly greater than that of the other respondents and we are of the view that he deserves to be more severely punished than the others. The publication, as already stated, has done incalculable harm but, only because, he has suffered considerable mental agony as a result of his matrimonial mis fortune which gave rise to the whole litigation we do not commit him to prison but content ourselves by merely fining him Rs.1,000 or six months' simple imprisonment in default.

So far as the other respondents are concerned, we Navel again in view of their unqualified apologies taken a lenient view and do not propose to commit them to prison but instead impose upon each of them, except the respondent No. 3 Maqbul Sharif in Case No. 80 of 1962, a fine of Rs.250 or in default one month's simple imprisonment. The latter is merely warned, as he is only a reporter and not directly responsible 'for the publication.

Before concluding, however, we would like once again to impress upon those concerned with the publication of newspapers that whilst we have no desire to curb in any way the legitimate freedom of the Press or to restrict the dissemination of news, they must remember that when they undertake the publication either oil pleadings in a cause or of comments upon them whilst that cause has not yet been heard in a Court of law, they undertake a perilous venture at their own risk and they would be well advised to take due note of what has already been said by this Court in the case of Saadat Khialy v. The State and another as to what reports of proceedings in Courts can be, published and at what stage. They must not be unmindful of the fact that they are equally responsible for safeguarding the due administration Oil justice in the wider interests of the public. It is a matter off common concern to all that both parties to a cause or matter pending in a Court of law should be heard at the same time and in the presence of each other by an unprejudiced tribunal. This object will be entirely frustrated if newspapers are permitted to print extracts of pleadings in advance, for, it would constitute a serious interference with what is the Court's duty, namely, the decision of the pending case.

Since this is the first occasion on which information s of this nature have been filed by the learned Attorney‑General in this Court we also wish to place on record our appreciation of the assistance he has rendered in maintaining the streams of justice free from extraneous influences in keeping with the best traditions of his high office.

A.H. Order accordingly.

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