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Petitioner: THE STATE VS Respondent: TAJ DIN AND Other
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain, Muhammad Akram, A. R. Sheikh Title: THE STATE vs TAJ DIN AND Other Case No.: Criminal Original Nos. 9 and 10 of 1972 r. O. No. 9/72 r. O. No. 10/72 Date of Judgment:1972-05-09 Reported As: PLD 1972 Lahore 434 Result: Order accordingly
JUDGMENT
JUDGMENT MUSHTAQ HUSSAIN, J.-The Chief Justice was away at Rawal--pindi in connection with the meetings of the War Inquiry Commis--sion when, on 9-3-1972, Sardar Muhammad lqbal, J. Handed over a note running into four Pages to one of us (Mushtaq Hussain, J.). The note forms part of the record. His Lordship complained that he had been informed on the 7th of March 1972 at about 8-30 a.m. By Mr. Hakem Qureshi, Advocate that about 15 persons were seen carrying placards in their hands on the Mall Road near YMCA which bore the following inscriptions:- It went on to say that Mr. Muhammad Nasim, Advocate saw him immediately thereafter and confirmed the news and added that these persons had proceeded to the Governor's House. 2. The note continued that, on the succeeding day, these people went again in a procession from the Turner Road and proceeded to the Governor's House. His Lordship suggested that the slogans shouted by them were a misrepresentation and maintained that Taj Din, Ghulam Rasul, Khair Din, Khushi Muhammad and Qadir Bakhsh were in the procession, as were Allah Rakha and Abdul Majid sons of Jhanda. His Lordship pointed out that the miscreants mentioned above, who, so his Lordship said, were identifiable in a photograph of the procession sent by his Lordship, which also forms part of this record, were ejected tenants having been so ejected somewhere In the year 1965 in due process of law. It was further stated that these persons bad been agitating from time to time before various Courts and some of them had already been served with notices of Contempt. His Lordship stated that:- "(4) I have all along been quiet and reticent, and did not react in any manner whatsoever, but it appears things have gone too far and they have now resorted to something which is highly detrimental to my position as a Judge because I cannot defend myself in the public.
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(5) I have brought the above facts to your notice so that my colleagues are apprised of the true position vis-a-vis the prosecution, the placards and the slogans." 3. It was decided that notices be issued to the alleged contemners to show cause. These notices were issued under the order of Mushtaq Hussain, J. On 9-3-1972. He also ordered that the papers shall be placed before Hon'ble the Chief Justice on the 13th instant for the nomination of a Bench. 4. A notice was issued also to Mr. Majid Nizami Editor of the daily Nawa-i-Waqt, as the issue of this paper for the 9th of March 1972 carried a photograph of some processionists carrying placards over the following caption:- 5. These two cases were registered as Cr. Os. 9 and 10 of 1972 and by order of Honourable the Chief Justice were placed before the present Full Bench. Criminal Original No. 9 of 1972 6. The respondents in Cr. O. 9 of 1972 appeared on the 17th of March 1972 and their statements were recorded. 7. Khair Din respondent took up the position that he neither saw the procession nor did he participate in it. 8. Taj Muhammad admitted that he had participated in a procession on the 7th of March 1972; that he was carrying a placard; that he is illiterate; that he did not know what was written on it; that he did sometime shout slogans; that the procession was taken out against Mr. Justice Sardar Muhammad Iqbal; that he shouted only the following slogans; (1) Long live the President. (2) Long live the Government of the People. (3) Long live the Governor of the Punjab. (4) Down with Mr. Justice Muhammad Iqbal. He denied having shouted any other slogans or having taken part in the procession on more than one day. He admitted that the procession went to the Governor's House from the bus-stand; that the procession had been taken out because their land had been taken over by Mr. Justice Muhammad Iqbal and they were without the necessities of life and employment; that they were being persecuted by him so much so that they were not being allowed to go out even to answer the call of nature. He stated in reply to a question put by the Advocate-General that they had been ejected with the help of the police five or six years ago and their standing crops were taken away from them. 9. Ghulam Rasul admitted having participated in the procession on two days, having carried a placard, having shouted some slogans which he did not remember; the procession having culminated at the Governor's House; that the procession was taken out against Mr. Justice Sardar Muhammad Iqbal by whom they were persecuted and turned out of their lands and their standing crops were taken away and they were sent to jail. He said that they were fighting for their food and necessities of life and that they had been ejected from their lands about five or six years ago. He was not aware of what was written on the placards which they had got inscribed by someone in the bazar. 10. Khushi Muhammad denied having participated in the procession and suggested instead that he was in Chak No. 71 in the Layallpur District when the procession was taken out. 11. Allah Rakha similarly denied having taken part in any of the processions. 12. Qadir Bakhsh gave a statement on the same lines as Taj Muhammad. He, however, added that the Governor's Secretary had met them outside the Governor's House and they had told him that they should either be transported across the Border or they should be shot dead or that justice should be done to them because they bad been deprived of all their belongings and that cases under section 307, P. P. C. Had been falsely registered against them. He said that they had also
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informed the Secretary that one Mehdi, who is a Munshi of Mr. Justice Sardar Muhammad Iqbal had got false cases of dacoity lodged against them. The Secretary conveyed it to the Governor and then inform--ed them what the Governor had ordered that if they felt that they were persecuted, they could go and take possession of the land which they had been tilling and from which they had been ejected. He further said that he had told the Secretary that they were being tormented by the local police and the Secretary told them that the Governor would ring up the Deputy Commissioner and ensure that they were not persecuted. 13. Next came Abdul Majid who also admitted participation in the procession and gave a statement on the same lines as Qadir Bakhsh. 14. Having examined these respondents, we took down the statement of Sultan Ahmad, Munshi of Mr. Justice Sardar Muhammad lqbal, who happened to be present in Court, with a view to having the respondents identified particularly because three of them had denied having taken part in the procession at all. He identified Khushi Muhammad initially, but then he admitted that he had no similarity to the person whom the witness had marked as Khushi Muhammad on the photograph supplied by the Hon'ble Judge. He, however, insisted that although Khair Din had denied having taken the part in the procession, but he was the same person whom he had marked in the photograph. Similarly, he identified Allah Rakha in the photograph Exh. 'A'. In answer to a question asked by the learned Advocate-General, he submit--ted that no tenant cultivating the lands of Mr. Justice Sardar Muhammad lqbal had been ejected after the year 1965. The ejectment which took place in 1965, he said, were through due process of law. 15. The case then adjourned to the 20th of 1972, with a view to taking down the statements of Messrs Hakam Qureshi and Nasim Ahmad, Advocates who had initially informed the learned Judge about the processions. By the same order, the rule wa3 discharged in the case of Khushi Muhammad, as he had not been identified as one of the persons who appeared in the procession. 16. When the case came up on the 20th of March 1972, we felt that the alleged contemners being illiterate persons could hardly appreciate the intricacies of the Law of Contempt and it was, therefore, in the interest of justice that they should be represented by counsel. We asked them to give us names of learned counsel by whom they would like to be represented. They gave the name of four learned counsel, including the learned Advocate---General. On inquiry, it was found that the first three were busy before the Supreme Court and would not be available for quite sometime. The Advocate-General was appearing for the rule and had already cross-examined some of them and could, therefore, not represent them. 17. We, then, asked the alleged contemners if they would accept a counsel nominated by the Bench. They expressed their willingness and we, therefore, requested Mr. R. S. Sidhwa, Advocate to appear for them. He asked for time to study the case. We directed that he should be given a copy of the record and the case was adjourned to the following day. 18 When the case came up for hearing on the 21st of March 1972, Mr. R. S. Sidhwa, Advocate for the respondents in Cr. O. 9 of 1972 presented a reply in writing in which unconditional apology had been tendered on behalf of respondents Nos. 1, 3, 4, 6 and 7. These respondents also filed affidavits in which they sincerely regretted the incident and submitted that they were repentant and asked for mercy. 19. We proceeded to ask the respondents individually in open Court and except for respondent No. 5, who did not admit his presence in the procession, the others owned the affidavits. In view of this development Messrs Hakam Qureshi and Nasim Ahmad, Advocates were allowed to depart as the recording of their statements was no longer necessary. 20. On the 5th of May 1972, Mr. Yousuf Ali Khan, Advocate filed a power of attorney on behalf of the respondents in Cr. O. No. 9 of 1972 and submitted that his clients did not stick to the apology that they had tendered earlier in Court and would like to contest the case on merits. Mr. R. S. Sidhwa,
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Advocate, thereupon, prayed that he may be absolved of his responsibilities in the case since his clients had chosen to be represented by an alternative counsel. We informed him that if he wanted to be allowed to retire from the case, he should put in a written application which will receive due consideration. He did so and we permitted him to retire. Criminal Original No. 10 of 1972 21. When the case first came up for hearing on the 14th of March 1972, Kh. Abdur Rahim, Advocate who appeared for Mr. Majid Nizami was asked if he had the written statement of the respondent ready and if he intended to file one. He informed the Court that he did not have the statement ready but the stand of his client was that he had the highest respect for the judiciary and that the photograph was published just as a news-item since a procession had, in fact, been taken out. It had not been commented upon in the paper and that in any case, it did not concern any of the judicial or administrative activities of the Honourable Judge named in it. He also said that the publication was, however, sincerely regretted. We asked Kh. Abdur Rahim, Advocate to have a written statement of his client put in. He promised to do so the same day and the Full Bench, therefore, broke .Up to re-assemble later. 22. When we assembled later, Mr. Majid Nizami produced Exh. 'B' a print of the photograph published in the Nawa-i-Waqt. Kh. Abdur Rahim put in the written statement which now forms part of the record and which was on the lines indicated orally by Khawaja Sahib. 23. We informed the learned counsel and Mr. Majid Nizami that we did not consider the written statement to be an apology and that if he wanted to submit an apology, or if that was his intention, then, it would have to be unconditional if it had to be taken into consideration at all. He was told, however, that he was at liberty not to do so, if he was so advised. 24. On this, Mr. Majid Nizami conferred with Kh. Abdur Rahim and Mr. Aftab Farrukh, Advocates who were representing him and said that he wanted to make a statement an the nature of an unqualified apology. The statement was, therefore, 4en down which is reproduced as under:- Q.-We understand that you want to tender an unqualified apology. Is that correct? Ans.-Yes Sir. Q.-Are you aware that it Is not incumbent upon us to accept such an apology? A -Yes Sir. Q.-Do you still want to tender an unqualified apology? Ans.-Yes Sir. I tender an unqualified apology for the publication of the offending photograph." The case was then adjourned to come up along with Cr. O. No. 9 of 1972 since we wanted to hear arguments in both the cases together. 25. When the case came up on the 29th of March 1972, Mr. M. B. Zaman, the learned Advocate- General got up and made the following statement before us- "His Lordship Mr. Justice Muhammad lqbal has instructed me to state before your Lordships that he is satisfied with (and accepts) the apology of Mr. Majid Nizami and requests that the rule be discharged against him. As for the others, I will make my submissions." He then submitted that the words "and accepts" which now appear in brackets in the quotation above, be deleted as it was for us to accept the apology. We deemed it fit, at this stage, to adjourn this case. 26. When the case came up for hearing on 5-5-1972, Mr. Majid Nizami expressed a desire to make a statement and he submitted that he may be allowed to do so in the absence of all concerned. In pursuance of his request, we asked person unconnected with the case to leave the Court-room, but we allowed the learned Advocate-General, his Assistant, Mr. Aftab Farrukh and Mr. Tariq Rahim to remain present, as they were appearing in that case. Mr. Majid Nizami then made a statement on Solemn Affirmation.
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27. The Statement is reproduced in extenso as follows:- "At 9-00 p.m. On 13-3-1972, i.e., the date preceding the first hearing of the case, Mr. Humid-al-Makki phoned me at my house at about 8 or 8-30 p.m. Mr. Humid-al-Makki is the Proprietor of Sindbad Travels and is a personal friend of mine. He enquired from me if I was prepared to talk to Mr. S. M. Zafar, Advocate, the former Law Minister, in connection with the Contempt, case regarding Mr. Justice Muhammad Iqba1. I replied that Mr. S. M. Zafar and I were known to each other very well and if he wanted to talk to me, it would be appropriate that he should contact me personally and not through Mr. Hamid-al-Makki. (2) Immediately after this, Mr. S. M. Zafar rang me up. He talked about the case and assured me that the whole matter could end if I just gave one line in writing. I told him that I had the greatest regard for Mr. Justice Muhammad Iqbal personally as well as for the High Court and I came to know about the publication of the photograph in the afternoon on the r day that' it was published. I came to know about it when someone informed me about it on the telephone. I told Mr. S. M. Zafar that the publication of the photograph was a routine matter, but I would certainly like to know what I was supposed to give in writing and in what form. I also enquired from him how was he in a position to assure me that the matter would end if I were to give that line in writing. He said that since Mr. Justice Muhammad Iqbal was the com--plainant in the case, he could withdraw the complaint and the matter could be ended outside the Court and that Mr. Justice Muhammad Iqbal could speak to his colleagues on the Full Bench to treat the matter as closed. I, then, told him that since the case was to come up the following morning, I would like to know how he intended to proceed. He informed me that he was sending Mr. Saeed Akhtar, Advocate to me. I proposed that Mr. Saeed Akhtar may first speak to Khawaja Abdur Rahim who was to represent me in the case and then I would take Mr. Saeed Akhtar to Kh. Abdur Rahim personally. I further asked him to let me know what he wanted me to write and also to show that to Kh. Abdur Rahim. The line on which we agreed is Exh. A. It is in the hand of Mr. Saeed Akhtar, Advocate. It runs as follows:- "The publication of the photograph in question, if it has caused annoyance to this Court or any Judge is regretted. Respondent Through Advocate." This was written by Mr. Saeed Akhtar, Advocate in my presence. (3) I rang up Kh. Abdur Rahim thereafter and informed him of the conversation that had taken place between Mr. S. M. Zafar and myself and between Mr. Saeed Akhtar and myself. Kh. Abdur Rahim confirmed that he had also received a telephone call from Mr. Saeed Akhtar, Advocate who had apprised him of the line that I was supposed to write. He said to me that the line that we had decided to adopt in the case is different from this proposal. We agreed, however, that I should accompany Mr. Saeed Akhtar to Kh. Abdur Rahim's house where the matter could be sorted out. (4) Mr. Saeed Akhtar reached my house at about 9-30 p.m. End from there I accompanied him to Kh. Abdur Rahim's house. Kh. Abdur Rahim enquired from Mr. Saeed Akhtar as to the mechanics of - the whole proposal and as to how could it be ensured that the case would come to a favourable end, and how could the details be worked out. He also, enquir--ed whether it was correct that Mr. Nizami would not be required to appear as had been suggested by Mr. Saeed Akhtar. (5) Mr. Saeed Akhtar, Advocate then rang up Mr. S. M. To Zafar and apprised him of the; situation and asked him for instructions about the manner in which the whole thing was to proceed. He was informed that Mr. S. M. Zafar had already left for a picture-house. It had also been suggested at that time that Mr. Saeed Akhtar should himself appear on behalf of me. The impression given by Mr. Saeed Akhtar was that this suggestion had emanated from Mr. S. M. Zafar. Since it was already 10 o'clock, we told Mr. Saeed Akhtar that it was not possible for us any longer to wait for Mr. S. M. Zafar.
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(6) Mr. Saeed Akhtar then decided to establish direct contact with Mr. Justice Muhammad Iqbal on the telephone and take instructions from him as to the steps that were to be taken in the matter. Some discussion ensued on the telephone. Exhibit B, which is inscribed on the back of Exh. A was then dictated on the telephone by Mr. Justice Muhammad Iqbal to Mr. Saeed Akhtar, Advocate as something which could serve the purpose. The writing marked as Exh. B is as follows and this is in the hand of Mr. Saeed Akhtar. He took it down in my presence. "Reference Notice Date On verification, the respondent has found that the photograph in question appeared in the late edition of Nawa-i-- Waqt of 1972 and further that processionists who claim to be the tenants were in fact ex-tenants. The publication of the photograph and the caption below it sincerely regretted." As I did not want any dispute, nor had I ever the intention of committing any contempt, I agreed to the proposal. (7) Mr. Justice Muhammad Iqbal advised Mr. Saeed Akhtar on the phone not to appear for me as it would not be proper to do so, nor to present any application to the Court on my behalf. Mr. Saeed Akhtar told this to us there and then. I then said to Mr. Saeed Akhtar that the case was scheduled to come up at 8 o'clock next morning and I had not been inform--ed as to who was to appear for me, how the draft was to be prepared who was to present it if, at all, it was to be presented and whether Mr. Justice Muhammad Iqbal will be able to speak to his esteemed colleagues on the Full Bench before the case comes up. Mr. Saved Akhtar then proposed that he will consult Mr. S. M. Zafar when he comes back from cinea at midnight and that he would then let me know at the earliest in the morning. (8) Mr. Saved Akhtar then rang me up at about 7 or 7-30 in the morning and he assured me that everything will be all right and that I should not worry. (9) When I came to appear before the Court in the morning, I met Mr. S. M. Zafar outside the Court Room where the Full Bench was holding its session. I again enquired of him and he again assured me that everything would be all right and that I need not worry any further. (10) Mr. Saeed Akhtar was present in Court. He smiled and beckoned towards me indicating that I was not to worry. It will be recalled that when Kh. Abdur Rahim appeared in the morning in Court; he was asked to produce a written statement by the Court and when he said that he had none ready, the Court- asked him to file one, if he wanted to do so. Kh. Abdur Rahim asked for time to draft it and the Court agreed to take up the case after sometime. Whatever transpired after that is known to the Court. (11) Mr. S. M. Zafar asked me when I came out of the Court room for drafting my statement if everything had gone all right and I reported to him that it had not because we had been asked by the Court to file a written statement and that we were proceeding to the Chamber of` Mr. Aftab Farrukh to prepare the written statement. (12) While we were preparing the written statement in Mr. Aftab Farrukh's Chamber, Mr. S. M. Zafar rang up two or three times and he again assured me on the telephone that I was not to worry and that everything would be all right and would be settled as he had already promised me earlier. This tele--phone call was attended to either by Mr. Aftab Farrukh or Kh. Abdur Rahim, Advocate and the message was communi--cated to me by either of them. He also said that the Advocate---General would not oppose us in whatever I had to say. The statement that I made in Court was made under the Influence of these circumstances. . (13) I, therefore, respectfully submit that the apology was tendered out of respect and esteem for this Court which I always had, but I think that the publication of the photograph does not constitute contempt because the photograph did not relate to the judicial functions or capacity of the learned Judge. I need not reiterate that I have the highest esteem for this Court which I always had
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and I have always been of the view that even if such a case is contested, an apology should, never--theless, be filed out of respect for the Court." 28. The position in Criminal Original No. 9 of 1972, there--fore, is that Allah Rakha and Khair Din do not admit their presence in the procession. Khair Din has consistently taken the stand while Allah Rakha had, at one stage, when he was repre--sented by Mr. R. S. Sidhwa, admitted that he had taken part in the procession. He has now gone back upon this position through a statement made by his learned counsel Mr. Yousuf All Khan before us. Of course, Allah Rakha is present in Court himself and is an educated person, being an under-Graduate student in a College. The others admit that they took part in the procession: that they raised slogans, one of which was "Down with Mr. Justice Sardar Muhammad Iqbal." 29. Mr. Yousuf Ali Khan has gone a step further and has admitted before us that one of the placards carried by the alleged contemners did carry the inscription:- He has further stated that this was meant not for the judiciary in general but referred only to Mr. Justice Sardar Muhammad Iqbal. 30. We have also got before us the statements of the alleged contemnors which were made at the initial stage in which they have admitted that in the procession they did not concern them--selves with any person other than Mr. Justice Muhammad Iqbal. The only inference that can be drawn from this categorical statement is that the placards and the slogans were in respect of his Lordship Mr. Justice Muhammad Iqbal. 31. The questions that we are in the circumstances called upon to adjudicate are:- (1) Did the respondents in Criminal Original No. 9 take part in a procession on the 7th and 8th of March 1972 which parad--ed on the Mall shouting slogans and went to the Governor's Rouse? (2) What slogans were shouted by the respondents or other participants? (3) What were the inscriptions on the placards that they carried? (4) Whether by shouting the aforesaid slogans and carrying placards they had committed Contempt of this Court? (5) Whether the publication of the photograph of the procession with the caption underneath in the Nawa-i-Waqt constitutes Contempt of Court by Mr. Majid Nizami ? (6) If the answer to question No. 5 be in the affirmative, what is the effect of the 'apology' tendered by him in the light of his statement dated 5-5-1972? Question No. 1. 32. Khair Din, Khushl Muhammad and Allah Rakha denied in their statements dated 17th of March 1972 that they had taken any part in the procession. So far as Khushi Muhammad is concerned, we have already discharged the rule against him because of the statement made by Sultan Ahmad, Munshi of Mr. Justice Muhammad Iqbal on the 17th of March 1972 in which he admitted that Khushl Muhammad was not the person marked by…
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