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Petitioner: ROBKAR-E-ADALAT through DEPUTY REGISTRAR VS Respondent: Raja KHAWAR NAWAZ and another
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Khawaja Muhammad Saeed, Syed Manzoor Hussain Gillani Title:ROBKAR-E-ADALAT through DEPUTY REGISTRAR vs Raja KHAWAR NAWAZ and
another Case No.: Criminal Original Nos. 5 and 6 of 2004 Date of Judgment:2005-04-21 Reported As: PLD 2005 Supreme Court (AJ&K) 7 Result: N/A Judgment ORDER SYED MANZOOR HUSSAIN GILANI, J.---On an information laid before the late Chief Justice. Mr. Justice Muhammad Yunus Surakhvi, by the Deputy Registrar of the Supreme Court that in weekly "Nawa-e-Hurriat" scandalous material is continuously being published against the superior judiciary and its Judges, two separate notices were issued on 6-8-2004, which constituted two separate contempt's, to different persons associated with the publication and printing of the newspaper and authority controlling its declaration, to show cause as to why the contempt proceedings should not be initiated against them under section 3 of the Contempt of Courts Act, 1993 read with section 45 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Both these matters are decided through this order. Secretary Information, Director-General Information and Deputy Commissioner Muzaffarabad were also issued notices to explain as to what steps had they taken for the cancellation of declaration of the publication i,e, weekly "Nawa-eHurriat" which has published contemptuous material. Notices were also issued to Malik Abdul Aziz, owner of T.S. Printers Rawalpindi from where the newspapers were published and Raja Khawar Nawaz, who is the Chief Editor of Weekly "Nawa-e-Hurriat": Mr. Saleem Ahmed Bismal, the then Secretary Information informed the Court on 13-8-2004, that a summary has been put up for removing the name of weekly "Nawa-e-Hurriat" from the media list of Azad Jammu and Kashmir. Later on in the light of order issued by the Azad Jammu and Kashmir Council Secretariat Islamabad, dated 27th of August, 2004, Deputy Commissioner Muzaffarabad vide his Order No, 1423-42 dated 31-8-2004, cancelled the Declaration Certificate of Weekly "Nawa-eHurriat" issued in favour of Raja Khawar Nawaz.
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2. Statements of Raja Khawar Nawaz and Malik Abdul Aziz were recorded by the late Chief Justice on 13-8-2004 in the open Court. On the statement of Raja Khawar Nawaz that he did not get published the contemptuous material from T.S. Printers Rawalpindi, Malik Abdul Aziz, owner of T.S. Printers was discharged. Raja Khawar Nawaz, however, admitted that news items published in weekly "Nawa-eHurriat" dated 26th July, 2004 to 1st August, 2004, were given to him for publication by some person whose name is Pervaiz who pretended to belong to an Intelligence Agency and the news items were published by him at his behest. He also admitted that he got all these news items published without caring as to whether these were correct or incorrect. Regarding the publication' he stated that these were published from the press of daily "Wafaq". 3. After recording his statement, Raja Khawar Nawaz requested the late Chief Justice, Mr. Justice Muhammad Yunus Surakhvi, meeting alone in his Chambers. During his meeting with the late Chief Justice in Chambers, he told the late Chief Justice that Raja Muhammad Shafique (contemnor), Reporter of daily "Ausaf" Islamabad, had provided him the file of contemptuous material along with one Pervaiz, on which the late Chief Justice ordered the police to apprehend and interrogate Raja Muhammad Shafique. In the meantime, it was ordered by the late Chief Justice that as the offences under sections 501, 502, 117, 467, 468, 409, A.P.C. Read with sections 40, 41 and 42 of the Press and Publication Ordinance, 1990 are also made out against the persons who published the contemptuous material, the- case may be registered and investigated against them. Thereafter a case was accordingly registered against them. Raja Muhammad Shafique, (contemnor) was produced before the Court in view of the statement of Raja Khawar Nawaz before the learned Chief Justice in his Chambers. His statement was also recorded by the learned Chief Justice on 16-8- 2004. He stated that the contemptuous news items were given to him by one Col. Ayub, resident of Churhoi, Kala Dahab, District Kotli for publication in daily "Ausaf" but he was told that these relate to the judiciary, hence cannot be published in daily "Ausaf", however he left the matter with him (Raja Muhammad Shafique), According to Raja Muhammad Shafique, these contemptuous news items were given to Raja Khawar Nawaz to be published in weekly `Nawa-eHurriat' and Col. Ayub settled Rs,20,000 as payment for the publication of these contemptuous items in the newspaper. Rupees 5,000 were immediately paid by Col. Ayub and Rs,12,000 were paid after the publication of news items but the remaining 3,000 rupees were not paid by him as some other news items given by him were not published. He stated that he read the news items himself and then got these published in the newspaper. 4. Both these contemnors also stated that they were told by the Press Secretary of the Prime, Minister of Azad Jammu and Kashmir that appointments of the Supreme Court and High Court Judges are made by the President of Azad Kashmir through Prime Minister of Pakistan and In charge Minister of Kashmir Council and Kashmir Affairs; and that advice of the Prime Minister of Azad Jammu and Kashmir is also necessary in it, which had not been obtained before sending the summary to the Prime Minister of Pakistan by the President of Azad Jammu and Kashmir. Abdul Aziz borne out by Raja Khawar Nawaz that the Contemptuous material was published from his press, who denied having published the material and instead stated that it is the T.S. Printers who are habitually press. He also stated that Raja Khawar Nawaz had once approached him for publication of some contemptuous material about three months before was also summoned by the Court in view of the statement of Malik publishing the scandalous and blackmailing news items not `Wafaq but he refused, to publish it from his press. 5. One Muhammad Ather Beig, Resident Editor of daily `Wafaq' 6. In view of the statements of Raja Muhammad Shafique, Raja Khawar Nawaz and Muhammad Ather Baig, it became crystal clear that besides the present contemnors one Col. Ayub and Pervaiz are also involved in publishing the contemptuous material against the superior judiciary and its Judges. God best knows who was the exact character behind this mischief, but it would definitely
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be a person who was either interested in becoming or helping in appointing the Judge of the superior judiciary by blackmailing and scandalizing the Judges against whom the scandalous material is published and creating conditions so as to frustrate the appointment. 7. However, the fact goes unrequited in view of the statements of contemnors that they have practically played the actual part in publishing and getting published the contemptuous material, thereby lowering down the prestige of judiciary, scandalizing the Judges, undermining the authority of the Courts and making the selection process of judiciary muddy. 8. After the sad demise of late Chief Justice, Mr. Justice Muhammad Yunus Surakhvi, the case was placed before this Bench. Notices were ordered to be issued against Col. Ayub and Pervaiz who are stated by the contemnors to be the persons who supplied the material for publication to the contemnors and to Malik Abdul Aziz, owner of T.S. Printers, who was earlier discharged. It was reported back that Col. Ayub is out of country along with his family. Malik Abdul Aziz is in Adyala Jail in connection with some other case and Pervaiz is not traceable, on account of which a non- bailable warrant was ordered to be issued against Col. Ayub and Pervaiz who appears to be deliberately avoiding the service and trying to be fugitive from law which remains in force and shall continue in force, till they are apprehended and produced before this Court. Malik Abdul Aziz will be produced in the Court when out of jail. 9. A show-cause notice charging the contemnors for commission of the contempt of Court was served upon them under the orders of the Court dated 27-10-2004, calling upon them to show cause as to why they should not be punished under section 4 of the Contempt of Court Act, 1993 and all other enabling provisions in this behalf. 10. The accused contemnors submitted their unconditional apology in writing supported by their affidavits placing themselves at the mercy of the Court and seeking the apology on humanitarian grounds with an undertaking that they will remain conscious and refrain from the like in future. 11. As stated above, both the contemnors have in their unequivocal statements admitted the commission of offence. Raja Khawar Nawaz has admitted in his statement dated 13-8-2004 that he has published the contemptuous matter read over to him as Annexures 'A to A, B to B and C to C', which are published in weekly "Nawa-e-Hurriat" dated 26th of July to 1st of August, 2004 and he is the Chief Editor of the Newspaper. A gist of English version of the matter is reproduced in paras to follow. 12. Raja Muhammad Shafique, the other contemnor has admitted in his statement recorded on 16- 8-2004, that the contemptuous material was supplied to him by one Col. Ayub. Raja Muhammad Shafique also admitted that he settled Rs,20,000 with Col. Ayub, to be paid to Raja Khawar Nawaz for the publication of contemptuous material after which Rs,17,000 were paid to him in two installments. 13. Both have expressed their regrets and feeling ashamed of what (hey had done, have offered unconditional apology in their statements before the Court as well as written apology along with their affidavits submitted after the show-cause notice charging them with the commission of offence. Thus there remains nothing to be discussed and dilated upon in the matter except to accept or reject their plea of unconditional apology. 14. Before expressing anything on it, it is deemed proper to place on record the background of this nasty act. The first in the series of this nasty publication was "Nawa-e-Hurriat" Schedule III, Edition 26th for 19th to 25th July, 2004. A banner headline of the newspaper reported that "sensitive institutions have started investigation on the corruption and political appointments of Judges of superior Courts of Azad Jammu and Kashmir and the Federal Government has stopped these appointments." It is further stated that "President of Azad Jammu and Kashmir wanted to appoint against the rules and procedure, Justice Syed Manzoor Hussain Gilani, as Judge of the Supreme Court and Justice Reaz Akhtar Chaudhry, as Chief Justice of the High Court without the advice of
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the Prime Minister of Azad Jammu and Kashmir, so as to get Sardar Sikandar Hayat Khan disqualified through judiciary." 15. Serous allegations of corruption were levelled against Mr. Justice Reaz Akhtar Chaudhry (now the Chief Justice of the High Court) for "having constructed a house costing millions of rupees while his income tax returns do not reflect such an income" and that "he has caused loss of millions of rupees to the Government while deciding flour Mill's case in favour of Chaudhry Muhammad Yasin". 16. It was alleged _against the late Chief Justice, Mr. Justice Muhammad Yunus Surakhvi that "he is suffering from disease which renders him incapable of performing the judicial functions". Further "President wants to appoint Justice Syed Manzoor Hussain Gilani, as the Chief Justice of the Supreme Court in connivance with the opposition leader Barrister Sultan Mehmood Chaudhry for accomplishment of their objective by obtaining favorable decisions." 17. A distorted version of a reference filed by the then President of Azad Jammu and Kashmir against the scribe of this order, Justice Manzoor Hussain Gilani, was also published in that newspaper. A copy of this newspaper is placed on the file. 18. It is followed by contemptuous publication in its edition of 26th July to 1st August, 2004 under different banner headlines that "Nawa-eHurriat" has launched a crusade against the corrupt Judges and their illegal appointments and imitated the charges of corruption, loot and favouritism against the Judges." The then Prime Minister of Pakistan, Chaudhry Sujahat Hussain and In charge Minister for Kashmir Affairs and Kashmir Council, Dr. Syed Chazi Gulab are also called upon to explain, "as to how illegal appointments are proposed in the superior judiciary by the President of Azad Jammu and Kashmir in connivance with 'the opposition leader and without the advice of the Prime Minister for Azad Jammu Jammu and Kashmir thereby depriving the senior Judges of the judiciary of their right." An appeal is also made calling upon the general public that "they should read an investigative report based on facts against Justice Muhammad Yunus Surakhvi and Chief Justice of Azad Jammu and Kashmir High Court, Justice Syed Manzoor Hussain Gilani." General public was also instigated that, "it may furnish the information regarding their corruption to the newspaper on the address given in the paper." 19. This obnoxious and mischievous activity was definitely maneuvered and sponsored by someone seeking appointment in the superior judiciary by blackmailing and threatening the quarters competent to make the appointment and those being appointed. The contemnors have taken upon themselves the entire responsibility thereby trying to conceal the real culprit and character behind it, except disclosing the name of an Army Colonel, (Col. Ayub) for having supplied the material to them against a consideration of Rs, 20,000. A non-bailable warrant already issued against him shall remain in force till he is arrested and produced before Court. 20. The publication by the contemnors and their some invisible and absconding partner is based on a deep-rooted mischief trying to create an atmosphere of infighting, mistrust and crises amongst the Members of the superior judiciary and in the State apparatus by publishing false, frivolous, baseless and distorted facts so as to pave the way for appointment of someone behind the scene, by lowering down the prestige of existing Members of the superior judiciary, authority of law and scandalizing the persons of Judges against whom the contemptuous matter is published. 21. What appears from the perusal of above, reproduced gist of the contemptuous matter is that a hatred, animosity, mistrust and serious disputes be created amongst the President and the Prime Minister and to induce the Prime Minister to jump into the field in the aid of hiding partner of the contemnors and between the then Chief Justice (late) Mr. Justice Muhammad Yunus Surakhvi, and the next senior most Judge of the Supreme Court (now Chief Justice of the Supreme Court) and author of this order, (Justice Syed Manzoor Hussain Gilani) so that each one gets lined up against the other and thereby create the crises parting way for his appointment ignoring that the institution of judiciary is made a mockery for petty gain of getting someone inducted in sacred
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institution of judiciary. The character behind it appears a hypocrite of the highest criterion and deep-rooted into the affairs of the judiciary of which one can definitely guess but not exactly point out. 22. It may be placed on record to the credit of judiciary in Azad Jammu and Kashmir that the appointments in the judiciary have so far been made in accordance with the strict principles of the Constitution and of the persons most deserving and of the caliber becoming of a Judge of the superior judiciary in Azad Jammu and Kashmir has also the honour of having unflinching faith of people of Azad Jammu and Kashmir in it. 23. Mr. Justice Muhammad Yunus Surakhvi, late Chief Justice of Azad Jammu and Kashmir, was appointed directly to the Supreme Court on account of his being an eminent Advocate. Mr. Justice Khawaja Muhammad Saeed, Hon'ble Chief Justice of the Supreme Court, was an Advocate of outstanding calibre, knowledge and eminence when appointed as Judge of the High Court. He remained Chief Justice of the High Court for more than 4 years and now holding the exalted office of Chief Justice of Supreme Court, after sad demise of late Chief Justice, Mr, Justice Muhammad Yunus Surakhvi. Mr. Justice Reaz Akhtar Chaudhry was an outstanding Advocate of Azad Jammu and Kashmir when appointed as Additional Judge in the High Court, then as Judge of the Shariat Court and ultimately picked up to be appointed as Chief Justice of the High Court out of remaining four Judges on my elevation to the. Supreme Court and because of my being the senior most of the other Judges in the High Court and having consented to be appointed as Judge of the Supreme Court. I had the honour of being the Advocate-General of Azad Jammu and Kashmir, acting as the Vice-Chancellor of Azad Jammu and Kashmir University and the Chief Election Commissioner. All these appointments have been made perfectly in accordance with the provisions and spirit of the Constitution. I think that it was due to this background of the calibre and strength of character of the Judges that the mischief was handled firmly but with dignity and magnanimity. 24. The people raising to the exalted offices of the superior Courts are not born overnight. It takes them decades to achieve the excellence, knowledge, calibre and depth to be picked up for the office. It is a life time effort to build a reputation to become a Judge of the superior Judiciary, destroying of which is accomplished by the flick of a pen, as the contemnors in this case have tried to do. It is unfortunate that without being mindful of what they are doing, the contemnors endeavored to damage life time achievement of the Judges by using vinegar in their pen rather than ink thereby leaving a sour taste in mouth for life time. 25. A distorted version of an abortive reference based on inaccurate and one-sided exaggerated facts filed against me in the Supreme Judicial Council of Azad Jammu and Kashmir in 1993, with a view to pressurizing me to yield to the, demands of then Government, is also published in the paper for character assassination and damaging my image, hence I avail the opportunity to express myself briefly on it. Though I was out of country when this drama was staged through the present contemnors by their hidden partner, however, its notice was taken by the late Chief Justice and I was associated in the Bench later on my return from Europe and Indian tour. 26. The material on which reference was filed against me was based on distorted, exaggerated and one sided misleading record which by any stretch of imagination could not be said to be any allegation amounting to misconduct. A photocopy of the same, is attached as Annexure 'A'. Most of it related to judicial actions and orders regarding which no Judge can be questioned in view of the Judicial Officers Protection Act, 1850, and section 77 of the Penal Code. Some of the distorted and baseless allegations related to the period before I was a Judge, and were, therefore, irrelevant to the reference. Issues were also raised about the legality of privileges availed by me and others although in fact they were completely legal and are being enjoyed by all of the Judges in Pakistan and Azad Jammu and Kashmir.
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27. It goes to the credit of the bar and judiciary that all such allegations were completely negated by spontaneous and outright protests against this mischief, because both the bar and the judiciary were fully aware of my conduct as a Judge and my legal acumen. Not even a single allegation of corruption or malfeasance could be brought against me, even in this mala fide and distorted version of reference, (Thank God). 28. I had also been subjected to victimization by maneuvering writ petitions against me on grounds, which were merely repetition of the false allegations in the reference. In fact these were attempts to pressurize the judiciary as whole and not me alone, though I was made a scapegoat. 29. I think there was close nexus between different forces against me and my straight forwardness. Thank God, that all those grounds were decided by the High Court and then by the Supreme Court and held as baseless. Reference may be made to the case reported as Syed Manzoor Hussain Gilani v. SaM Mullah, Advocate and 2 others (PLD 1993 SC (AJ&K) 12), and Civil Appeal No,40 of 1997 titled Raja Bashir Ahmed Khan v. Azad Jammu and Kashmir Government and others, decided on 20-1-1998 by the Supreme Court of AJ&K. 30. The fact of the matter as far as reference is concerned is, that it was filed on 19-9-1993 and remained pending till 12-6-1994, when a notice was issued by the Supreme Judicial Council to the Advocate representing the referring authority to argue about the maintainability of reference. A request was immediately made by the referring authority to the Supreme Judicial Council for the withdrawal of reference through letter dated 14-7-1994. (copy attached as annexure 13'). Proceedings were, therefore, dropped under the order of Supreme judicial Council dated 14-7-1994, implying thereby that charges against me were false and apprehending an unfavorable answer, the reference was withdrawn and proceedings dropped on the then Prime Minister's request as stated in the letter of President dated 10-7-1994, (copy attached as annexure `C'). The contemnors and their hidden partner concealed these facts knowing them fully well. 31. Thus viewed from any angle the contemnors have committed a heinous contempt not warranting any leniency in their favour, given the conduct, nature and manner of the accusations. However, I take pity on the contemnors for the reason that they expressed their repentance, admitted their guilt and disclosed the names of persons who supplied the material to them in very beginning of the proceedings and then placed themselves at the mercy of the Court having given an unconditional apology. 32. Keeping in view the overall circumstances of the case and the reason quoted hereinbefore, I take the view that by striking a balance between maintaining the dignity of the Court, harm caused to it by the contemnors and their repentance and apology, normal sentence of six months for which the contemnors could be sentenced, is cut to half, and they are sentenced to three months imprisonment in each of the contempt matter. Sentences shall run currently. 33. It is brought to the notice of the Court that in view of other criminal charges against them which were investigated by the Police in connection with the publication of contemptuous matter, which also involved the other offences under Penal and Press Laws, the contemnors remained in the Jail for considerable time. The period undergone by them in the custody in connection with the above investigation, shall be counted towards this period. 34. The amount of Rs,17,000 received by them from Col. Ayub for the publication of contemptuous material in the newspaper shall be deposited by them in the judicial account failing which they shall undergo further three months imprisonment in each case. (Sd.) Syed Manzoor Hussain Gilani, JUDGE KHAWAJA MUHAMMAD SAEED, C J.---My learned brother Mr. Justice Syed Manzoor Hussain Gilani has written an exhaustive order, however, due to importance of the matter it appeared to me that
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some useful purpose might be served by adding the following paragraphs. 2. For the purpose of brevity the facts which gave rise to this unpleasant controversy are not reproduced here. Before dealing with the controversy it appears appropriate to reproduce the provisions which empower the Court to proceed against any person who is guilty of contempt of Court. Section 45 of the AJ&K Interim Constitution Act, 1974, which deals with contempt matter reads as follows:-- "Contempt of Court. -(1) In this section 'Court' means the Supreme Court of Azad Jammu and Kashmir or the High Court. (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) scandalizes 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." Section 3 of the Contempt of Court Act, 1993, applicable in AJ&K is as follows:-- "Contempt of Court.--Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a willful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or to…
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