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Petitioner: M, INAYAT KHAN VS Respondent: M. ANWAR AND 2 Other
Court Name: Supreme Court of Pakistan Judge(s):Salahuddin Ahmad, Muhammad Gul, Muhammad Yaqub Ali Khan, Anwar-
ul-Haq Title: M, INAYAT KHAN vs M. ANWAR AND 2 Other Case No.: Criminal Miscellaneous No. 16 of 1972 Date of Judgment:1976-03-01 Reported As: PLD 1976 Supreme Court 354 Result: order accordingly Judgment ORDER ANWARUL HAQ, J.-These proceedings, under Article 123 of the Con--stitution of the Islamic Republic of Pakistan, 1962, read with the Provisional Constitution Order, 1969, were drawn up against the respondents on the allegations :- (a) That in the weekly magazine 'Kahani', bearing the date 10th to 17 March 1972, an interview of respondent No. 1, Mr. M. Anwar, Bar-at---Law, an Advocate of Lahore, containing scandalous matter against the Judges of the Supreme Court of Pakistan, was printed and published by respondents Nos. 2 and 3 as editor, publisher and printer of the said weekly ; and (b) That at the time this interview was given and published, a case was pending before the Supreme Court in which the respondent No. 1 himself was the counsel and had raised precisely the same contentions .As he had publicly canvassed through this interview. The petition was presented by Mr. M. Inayat Khan, Advocate of Lahore,, and a show-cause notice was directed to be issued to the respondents on the 3rd of April 1972. At the hearing of the petition, a statement was made by the learned counsel for the petitioner that the latter did not wish to press this petition. As, however, the Court had already taken cognizance of the matter by issuing a notice to the respondents, we decided to proceed with the matter, and requested the learned Attorney- General to assist the Court. The interview was published in the magazine under the heading. (Supreme Court Judges are guilty and not Ayub and Yahya). This is followed by a sub-heading reading (Serious allegations of M. Anwar, Bar-at-Law in connection with the present crisis of Pakistan).th
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The text of Mr. M. Anwar's interview, as published in the `Kahani', is in, Urdu, but in the written statement filed by him he has himself given an English. Translation of the relevant portions thereof. It will, therefore, perhaps be best to reproduce the same in his own words. After stating that in addition to being a legal practitioner he also takes active part in politics, and in this latter capacity he was frequently interviewed by journalists on different aspects of national life and was invited to address public and private audiences on, matters of political significance, he has gone on to add that in February 1972'--some journalists on behalf of the weekly 'Kahan? Interviewed him and asked him certain questions and that interview was published under an introductory note and headlines given by the editorial staff of the magazine. Mr. Anwar has given the following translation of the introductory note :- "In this new series, we will be asking respected personalities from different strata of the nation the question 'what in your view are the-- causes of the present crisis.' On this first occasion we have put this question to the country's distinguished jurist Mr. M. Anwar, Bar-at---Law. His answer is reproduced accurately. He has expressed his views--on a very important problem. We hope that our readers will appre--ciate this series and will favour us by their own views." Mr. Anwar's own English rendering of the important and relevant. Portions of his interview reads as follows :- "In my view the misfortunes of Pakistan have been caused by two --persons. Mr. Ghulam Mohammad, the third Governor-General, and Mr. Mohammad Monir the second Chief Justice of the Federal Court of Pakistan. Within 24 hours of the announcement by the Prime Minister that. The --new Constitution would be enforced on the birth anniversary of the Qaid-e-Azam (the Governor-General) on October 24, 1954, brought to, an end the existence of the Constituent Assembly. The Sind Chief Court issued a writ against the Government that the Governor-General had no power to dissolve the Constituent Assembly . . . . . This. Matter in appeal came before the Federal Court . . . Mir Mohammad Monir not only said that (the Governor-General). Had the power to dissolve the Constituent Assembly, but holding that (all laws made by Constituent Assembly, required the assent of the Governor-- General), with one stroke of the pen, invalidated innumerable laws which till then were in accord with the Government's own point of view (thus invalidating the very jurisdiction of the Chief Court in exercise of which writs were issued). The honour of dissenting from this fell to the lot of a Christian Judge------the other Judges agreed with Mr. Mohammad Munir's opinion. The result was that the fabric of the law of Pakistan was undone. Mr. Mohammad Munir nullified the law of writ so as to render void the writs issued by the Chief Court. Since that fateful day, we have not been able to put our derailed train back on the rails. Three years later the same Mr. Mohammad Munir is seen putting the seal of verification on Martial Law. There is documentary proof of the fact that Mr. Mohammad Munir was present in Karachi several days before the (imposition of Martial Law) to advise (those that imposed it). And after the imposition of Martial Law he did some--thing, the far-reaching consequences of which ultimately have pushed us in the lap of disaster. He . . . . . Gave this good news to-- the nation that if a usurper forcibly captures power, then that usurper becomes a legitimate source of law. This was such a dangerous decision that it paved the way for new adventurers. The painful thing is this that those Judges who had taken an oath to defend the Constitution watched it being trampled under foot and departed declaring that a revolution, if successful, becomes a fountain of law and the Constitution comes to an end. This dangerous doctrine was a product of the poisonous brain of Mr. Mohammad Munir ; in the trampling of democratic values, the Judiciary that was adorning the Bench from 1954 to 1958, is responsible for declaring an adventurer to be legitimate, and a forbidden thing (HARAM) to be permissible (HALAL). Respected persons who at that time called themselves Judges of the Supreme Court, did not remember the
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sanctity of their pledge and their oath, until becoming oblivious of the fear of God, they placed their great country at the mercy of adventurers . . He has asserted in his written statement that far from constituting contempt of this Court, the views expressed by him during the course of this interview reflect "the high esteem and regard in which he holds the judicial office and all that it stands for. In speaking of certain individuals who, according to him, failed the highest judicial institution that existed in Pakistan in 1954 and in 1958, he did not in any way lower the prestige of the judicial office, or of any judicial institution, or of this Hon'ble Court or of any of its Judges." He has then gone on to state that he "did not get anything published". In those days the assumption of non-Constitutional power by one person, and the surrender of that power by another was a recent event and a subject of much comment. The debacle in East Pakistan and the ignominous defeat on the borders of West Pakistan were wounds that had not yet been touched by the soothing hand of time. The enormity of the tragedy was stunning. Every one was asking how such a thing could at all have become possible. Opinions were asked and given. Respondent No. 1 was asked by a journalist. He replied: "That was all." As regards the allegation that the respondent bad deliberately given public expression to the contentions which he had raised in a pending case before the Supreme Court, Mr. Anwar has stated that he did not make any comment on any case whatsoever, and he only repeated the opinion he had expressed many times before on a doctrine that had come to be propounded in Pakistan. In support of this last assertion he has appended, with his written statement, a copy of the weekly 'Chatan' of Lahore dated the 20th of September 1971, containing a report of an earlier interview given by him on this subject. Finally, Mr. M. Anwar has drawn the attention of the Court to the fact that the doctrine expounded in Dosso's case (PLD 1958 SC (Pak.) 533) has now been rejected by the Supreme Court itself, thus vindicating "the humble opinion in--adequately expressed by respondent No. 1". On the 22nd of November 1973, a concise statement was filed on behalf of respondent No. 1 to the effect that besides the points already submitted in the written statement dated the 28th of September 1972, it would also be urged before the Court that the petition was not maintainable as it did not relate to the functioning of the Court as constituted under Article 49 of the 1962 Constitution, but to its predecessors set up under the earlier consti--tutional instruments. Respondent No. 2, Zia Shahid (editor and publisher of 'Kahani') has tendered an unqualified apology, stating that "the article in question was only published by me on the express assurance of Mr. M. Anwar, Bar-at-Law that "the above did not constitute contempt of Court". Respondent No. 3, Saeed Ahmed Malik, printer of the weekly in question, does not appear to have filed any written statement, nor has he entered appearance. We have, however, not considered it advisable to adjourn the proceedings on that account. He is accordingly being proceeded against ex parse. The learned Attorney. General contends that the article or interview in question constitutes gross contempt of this Court and of its Judges, as were serving at the time Dosso's case was decided, as it not only attributes question--able motives to the then Chief Justice, who delivered the leading judgment in Dosso's case, but also maligns the other Judges in extremely strong and derogatory language. He contends that the timing of the publication of the interview was deliberate, and was intended to 'browbeat and blackmail" the Judges of the Supreme Court who were to hear the appeal filed by Mr. M. Anwar in Asma Jilani's case (PLD 1972 SC 139) against the judgment of the Lahore High Court. He points out that the petition for special leave to appeal in that case was made by Mr. M. Anwar on the 1st of January 1972, leave to appeal was granted by this Court on the 25th of January 1972, and the hearing of the appeal was to commence on the 16th of March 1972, whereas the interview was publisbed in the weekly 'Kahani' a day or two before the 10th of March 1972. It
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appears to the learned Attorney-General that, in these circumstances, the real purpose of Mr. M. Anwar in getting this interview published was to influence the judgment of this Court in the aforesaid appeal by giving public expression to the alleged disastrous consequences of the judgment of the Supreme Court in Dosso's case, which Mr. M. Anwar was seeking to have reversed in Asma Jilani's case. The learned Attorney-General, however, states :that, in spite of the objectionable language used in the article, he would not have pressed for action against the respondents, but for the fact that they gave publicity to this interview during the pendency of a case in this Court, and it is desirable that such tactics should be severely discouraged and dealt with. Finally, he contends that the present Supreme Court, at the successor of the Federal Court and the Supreme Court functioning under the previous constitutional instruments, is fully competent to take action against the res--pondents under Article 123 of the 1962 Constitution. On behalf of respondent No. 1, Mr. Sharifuddm Pirzada contends that the present proceedings are not maintainable for the reason that the alleged offend--6ng remarks were directed against a Court which is no longer in existence, and, therefore, there could be no question of committing any contempt of that Court; that criticism of a retired Judge, howsoever worded, does not constitute con--tempt of the Court of which he was once a member; and that in any case the ,views expressed by the respondent, during the course of the published interview, ,Were no more than a discussion of matters of public importance, and did not have any tendency to substantially prejudice the fate of the appeal then pending before the Supreme Court. Finally, the learned counsel submits that proceedings by way of contempt being quasi-criminal in nature the benefit of .Doubt should be given to the respondent, especially when the Supreme Court itself has, in Asma Jilani's case, strongly disapproved of the doctrine expounded by the learned Chief Justice in Dosso's case, thus truly vindicating the stand taken by the respondent in his interview published in the'Chatan' in 'September 1971 as well as in the publication now under consideration. We shall first take up the question whether the impugned publication .Does constitute contempt of Court or not. As already stated this petition vas filed under Article 123 of the 1962 Constitution, clause (2) of which reads as under :- "(2) A Court shall have power to punish any person who- (a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court ; (b) scandalises the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt ; (c) does anything which tends to prejudice the determination of a matter pending before the Court; or (d) does any other thing which, by law, constitutes contempt of the Court." The comparable Article in the 1973 Constitution is 204 and clause (2) thereof is practically identical with that of Article 123 quoted above. However, an explanation has been added to the effect that "fair comment made in good faith and in the public interest on the working of the Court or any of its final decisions after the expiry of the period of limitation for appeal, if any, shall not constitute contempt of the Court". For our present purpose, clauses (h) and (c) are relevant, as it is con--tended that the publication of the interview amounted to scandalisation of the Court, and also tended to prejudice the determination of a pending cause. As stated by Oswa ld in his well-known book on Contempt. "all publica--tions, which offend against the dignity of the Court or are calculated to prejudice the course of justice, will constitute contempt." According to Lord Russel, C. J. In Reg v. Gray ((1900) 2 Q B 36), "any act done, or writing published, which is, calculated to bring a Court or a Judge into contempt or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is contempt." While
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describing the species of contempt known as "scandalising the Court", Lord Akin observed in Andre Paul Terence Ambard v. The Attorney-General of Trinidad & Tobago (AIR 1936 P C 141) that the Judges should not mind genuine criticism "provided that members of the public abstain from imputing improper motive to those taking part in the administration of justice, and are genuinely exercising a right of crticism and not acting in malice or attempting to impair the administration of justice .... Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful? Even though outspoken comments of ordinary men." In In re : Tushar Kand Ghosh, Editor, Amrit Bazar Patrika (AIR 1935 Cal. 419) it was observed that "it is immaterial whether the attack on the Judge is with reference to a cause about to be tried, or actually under trial, or recently adjudged; in each instance, the tendency is to poison the fountain of justice,, to create distrust, and to destroy the confidence of the people in the Courts, which are of prime importance to the public in the protection of their rights, and liberties". Similar views were expressed by a Full Bench of the Lahore High Court in The Crown v. Aminuddin Sahrai (PLD 1949 Lah. 410), while considering the effect of an. Article published in a newspaper criticising the judgment delivered by a High Court Judge in a recently decided case. The article had alleged that the judgment was not only wrong but dishonest and sacrilegious. The article also incited the people to turn the Judge out of Pakistan for having delivered such a judgment. It was held that the publication in question tended to--- impair the confidence of the public in the impartiality and competence of the Judge and was calculated to give an impression to the public at large that cases before that Judge or in the Court of which he was a Judge were not decided on the merits but on extraneous considerations. That being the tendency of the article, it was difficult to conceive of a more serious attack on the reputation of the High Court or a more serious damage to the public confidence in the administration of Justice by Highest Court in the Province. The decision by a Full Bench of the Sind Chief Court in The Crown v. A. Rafique (PLD 1950 Sind 74) is also on the same lines. In The State v. Moulana Abdul Rashid Tarkabagish (PLD 1959 Dacca 252), a case which is again reported as PLD 1964 Dacca 241 it was stated that: "If the words have the tendency of impairing the authority and the dignity of the Courts of justice by scandalising them, then it is no excuse for the person who is responsible for the said publication or who uttered the said words to say that it was in respect of proceedings which had long since concluded in Courts. It is not necessary that the words used should actually obstruct or interfere with the course of justice and the due administration thereof, but it is sufficient that they should be calculated to have that effect. 'Calculated' means that the offend--ing words should be of a nature or character proper or likely to obstruct or interfere in that manner. Where the words in no uncertain terms make the imputation that during the regime of the Muslim League the Judiciary had been influenced by the Ministry, that is a direct attack upon the independence and integrity of the Courts of justice in this country." The question as to what constitutes contempt by scandalisation was exhaus--tively examined by this Court in the case of Sir Edward Snelson v. Judges of the High Court of the West Pakistan, Lahore (PLD 1961 SC 237). It was observed that "the dignity and authority of the Courts has a link with the supremacy and majesty of the law. Any conduct which is calculated to diminish that dignity or authority is a criminal contempt which a Court is under duty to punish. The Courts of justice are a creation of the sovereign authority but their mainstay rests in the public confidence and anything which is calculated to withdraw the public confidence from them has the character of a libel to be visited by action in contempt." It was further observed that "in construing the matter alleged to be defamatory, no mitigation of its natural meaning by construction is permissible. The words must ba given their full, natural and ordinary meaning as a reasonable man of ordinary prudence would be likely to understand them. They must be taken as a whole in their context, and it should be clearly
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borne in mind that the slander and the damage consists in the apprehension of the hearer or other person to whom the libel is com--municated. The meaning in which the words were intended by the author to be understood is immaterial . . . . The question in every case is n'3t whether the publication in fact interferes but whether it tends to interfere with the due course of justice . . . . Fair and legitimate comment on judgments of a Court would not be actionable, provided the limits of bona fide criticism are not exceeded." We do not think that we can improve upon the statement of the law as contained in Sir Edward Snelson's case, except to re-emphasize and reiterate that any conduct which is calculated to diminish the dignity and authority of the Courts, and to impair public confidence in their independence, impartiality and integrity, constitutes contempt of the gravest kind. Imputing motives to Judges, and alleging, or even insinuating, that their judgments are inspired by extraneous considerations, like fear or favour of the executive cannot, in any event, be regarded as fair and legitimate comment made in good faith and in the public interest on the working of the Courts. Judged in the light of these principles, it would readily appear that the statements made by Mr. Anwar constitute grave contempt of Court falling in the category of scandalisation. From a perusal of the relevant portions of his published interview, it becomes manifest that he was not only voicing his dissent from the doctrine of the legality of a successful revolution as expound--ed by the Supreme Court in Dosso's case in 1958, but was also imputing improper motives to the then Chief Justice for delivering this judgment. He even went to the extent of maligning the learned Chief Justice by asserting that the judgment in Dosso's case was in line with the previous judgment delivered by the same Chief Justice earlier in 1951 in Moulvi Tameezuddin's case, and that both these judgments were motivated by the ulterior purpose of giving support to the then Governor- General of Pakistan in the first case, and the Martial Law usurpers of power in the second case, both judgments caus-1 in& a death blow to democracy and the rule of law in Pakistan. The language employed by the respondent is also extremely harsh and derogatory, speaking as it does, of the "poisonous mind" of the Chief Justice and trial other associate Judges giving a go-by to the oath which they had taken tow defend the Constitution. Such statements cannot in any sense, amount to at, fair comment on the correctness or propriety of the judgment of the Supreme Court in Dosso's case. The publication, therefore, clearly amounts to con--tempt of Court as it scandalises the Supreme Court of Pakistan as constituted in 1958. The next question is whether it also amounts to contempt for the reason that it was published during .The pendency of Asma Jilani's case before the Supreme Court, in which Mr. M. Anwar himself was a counsel, and was seeking to obtain a reversal of the Supreme Court's decision in Dosso's case. In Saadat Khialy v. The State (PLD 1962 SC 457) while dealing with the publication of' newspaper comments in respect of pending litigation, this Court observed that "if the article read reasonably and as a whole was calculated or had the tendency to prejudice mankind against one or other of the parties involved in, the proceedings, it was enough to amount to an interference with the course of justice, for the question in the case is not as to whether the publication, has, in fact, interfered or not, or as to what was the intention of the author and/or publisher, but whether it has the tendency to produce such prejudicial effect. The principle upon which this type of contempt is punished is to, keep the streams of justice unsullied so that the parties against whom litiga--tions are pending in Courts of law should get a fair trial from the Courts and, not be subjected in advance to a trial by newspapers." It was added that "the Courts in exercising this extra ordinary jurisdiction will not be unduly, touchy or sensitive to punish even technical or trifling interference." The effect of newspaper publications in regard to pending cases was. Again considered by this Court in the case of The Attorney General of Pakistani v. Abdul Hamid and others (PLD 1963 SC 17
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D), and, after a review of judicial precedents, it was concluded that " it appears to us that the real test in such cases is whether the publication complained of tended or was calculated to interfere with the --course of justice in any substantial or real manner, either by prejudicing a fair trial or by prejudicing the minds of the public against persons concerned as party 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 we are concerned with is that we should not permit any one to "poison the fountain of justice before it begins to flow". These conclusions and observations were reiterated in Advocate-General,, West Pakistan v. Shabir Ahmad (PLD 1963SC610). The contention that the mere expression of an opinion on a question of law which is sub judice cannot amount to a contempt of Court was repelled. It was stated that "there is no difference in principle between a comment on a question of fact and expression of opinion on a question of law, for, a Court even when dealing with a question of fact is expected not to be influenced by facts which may have come to its. Knowledge otherwise than from the evidence…
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