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Petitioner: THE STATE VS Respondent: EJAZ MAHMOOD AND 4 OTHERS
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain, Sheikh Anwarul Haq, Muhammad Akram Title: THE STATE vs EJAZ MAHMOOD AND 4 OTHERS Case No.: Criminal Original No, 301 of 1970 Date of Judgment:1970-10-30 Reported As: PLD 1971 Lahore 445 Result: Orders accordingly
JUDGMENT
JUDGMENT ANWARUL HAQ, C. J.--In these proceedings under Article 123 of the Constitution in respect of the Publication of a news item in the local edition of the Urdu Daily Nawa-i-Waqt, Lahore, of the 27th of September 1970, we passed a short order on the 3rd of October 1970, convicting and punishing all the five respondents, for reasons to be recorded later in the judgment, as follows :- (1)Respondent No, 1 Ezaz Mahmood was directed to undergo simple imprisonment for six months and to pay a fine in the sum of Rs, 2,000 or in default to undergo further simple imprisonment for two months. (2)Respondent No, 2 Arif Nizami to undergo simple imprisonment for two months and to pay a fine of Rs, 2,000 or in default to undergo further simple imprisonment for two months. (3)Respondent No, 3 Shoab Nizami to undergo simple imprisonment for two months and to pay a fine of Rs, 2,000 or in default to undergo further simple imprisonment for two months. (4)Respondent No, 4 Tahir Asadi to undergo simple imprisonment for one week. (5)Respondent No, 5 Rana Talaat Mahmood to undergo simple imprisonment for one week. 2. We now proceed to state the facts and our reasons for the order which we have already made. 3. In its local (Lahore) edition of the 27th of September 1970, the Urdu Daily Nawa-i-Waqt published a news item relating to High Court Judges under a banner headline covering three columns on the first page. Translated into English, it reads as under :-- "Possibility of disciplinary action against six Judges of the High Courts under the instructions of the Law Minister. Justice Junejo of the Karachi High Court resigns from his office. Wave of indignation and resentment among the lawyers of Lahore.
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Lahore, 26th September (Staff Reporter Ezaz Mahmood) :- It is learnt from reliable sources that six Judges of the High Courts of East and West Pakistan are being proceeded against on certain allegations. The six Judges to whom these notices have been written have been given the choice either to produce their defence before the Supreme Judicial Council or to resign from their office. It is learnt that Mr. Justice Muhammad Hayat Junejo of the Karachi High Court has resigned from his office. There is a wave of resentment and indignation among the lawyers and they have demanded from the President of the country that he should dismiss the Law Minister, as due to him serious damage has been caused to the judiciary of Pakistan. It will be recalled that in December 1969 all the Judges of the High Courts had submitted declarations of their movable and immovable property to their respective Chief Justices. The Supreme Judicial Council, established under Article 128 of the Constitution, had sent its reports on the 22nd of September to the respective Chief Justices so that all the Judges could be apprised of the objections raised regarding their declarations. The head of the Law Ministry, Mr. A. R. Cornelius, whose wife and children are still residing in England, by presenting the Council's proceedings in an adverse light, had the declarations scrutinised again according to his own wishes and in violation of the clear directions given in this behalf by the Chief Justice of Pakistan Mr. Justice Hamoodur Rahman. And in this manner the Senior Judges of the Lahore High Court Mr. Justic Sardar Muhammad Iqbal, Mr. Justice Karam Elahee Chauhan, Mr. Justice Muhammad Yaqub Ali Khan, Mr. Justice Noorul Arfin, Mr. Justice Maqsoom-ul-Hakeem, Mr. Justice Shaukat Ali and Mr. Justice Muhammad Fazle Ghani Khan etc., were involved. These steps by the Government against the Judges of the Superior Courts on account of various allegations have caused a wave of perturbation among the ranks of the politicians, lawyers and the common people, as these steps tantamount to striking a heavy blow, under a pre-planned scheme, at the prestige of the judiciary which is an important pillar of democracy. These steps will still further embolden the bureaucracy which is being held responsible, in all circles of the country, for all the present ills. Today, the Lahore High Court Bar Association at an emergent meeting severely criticised the Central Law Minister and alleged that the Punjab High Court was deprived of its representation on the Supreme Judicial Council which had been established to investigate the allegations against the Judges. The speakers described the present steps against the Judges as being in the nature of a conspiracy to finish the prestige of the judiciary. They demanded that the steps taken against the Judges should be rescinded, and if this demand is not acceded to, then the lawyers would establish a defence committee in support of justice-loving Judges. And an effort shall be made that the proceedings against the Judges should be in open Court.
(Continued on back page) The lawyers expressed great regret over the fact that although the President of Pakistan had once decided that the recommendations of the Chief Justice of Pakistan would not be disregarded in any case, yet Mr. A. R. Cornelius had managed to appoint the Chief Justice of Karachi Mr. Justice Qadeeruddin Ahmad as a member of the Supreme Judicial Council instead of appointing Chief Justice Anwarul Haq as such member. Reaction of the High Court Bar Association 75 percent. of the members of the High Court Bar Association were demanding to know as to what happened to the investigations against those Judges who had acquired, after their assumption of office, sixteen squares of land for only rupees one and a half lacs, although according to the Pakistan People's Party and a prominent lawyer of Lahore the present market value of this land was rupees sixty-four lacs. The conduct of different innocent and guilty Judges was brought under
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discussion by the High Court Bar Association and questions were asked from the Press Correspondents as to how could a Judge, whose salary after assumption of office was only Rs, 2,80) a month, build a house at a cost of rupees one lac, whereas its present market value was rupees five lacs. The High Court Bar Association also posed the question as to why did the Government not confiscate those bungalows which were constructed during Ayub Khan's regime. The High Court Bar Association drafted a resolution saying that a deputation should wait upon the President of the country to apprise him of all the facts. Majority of the lawyers demanded that the inquiry against the Judges should be held in open Court, and in this connection a defence Committee is being set up." 4. The news was repeated in the two Dak editions of the Paper bearing the date-line 28th of September 1970. It was displayed under the same banner headlines, although not on the first page. 5. On the 28th of September 1970, show-cause notices were issued to Ezaz Mahmood, Staff Reporter, Arif Nizami, Editor, and Shoab Nizami, Printer and Publisher, of the Nawa-i-Waqt, directing them to appear before this Court on the 30th of September 1970. The notices were served on the Staff Reporter and the Editor the same day, i. e., the 28th of September 1970, although the Printer and Publisher, Shoab Nizami, could not be served that day as he was out of Lahore. During the proceedings it came to light that some responsibility also rested on the Acting News Editor, Tahir Asadi, and the Chief Reporter, Rana Talaat Mahmood. Accordingly, they were also called upon to show cause why they should not be punished for contempt. 6. In the local edition of the 29th of September 1970, an apology was published by the management of the Nawa-i-Waqt to the effect that this news was baseless, and that inquiries had revealed that the cases of only two Judges Mr. Justice Shaukat Ali and Mr. Justice Muhammad Fazle Ghani Khan were under consideration with the Supreme Judicial Council. It was added that the management of the Paper wished to offer its unconditional apology to all the Judges of the Supreme Court of Pakistan and the High Court on the publication of this news. The apology was undoubtedly published on the first page, but it was not displayed under the same banner headlines as the original news. The apology was repeated in the two Dak editions bearing the date-line 30th of September 1970, but in these editions it was printed at the bottom of the back page. 7. All the five respondents submitted written statements in response to the notices issued to them, and also made oral statements before the Court. Apart from the Editor Arif Nizami and the Printer and Publisher Shoab Nizami, who are brothers inter se, the respondents appeared to be at cross- purposes with one another, and for this reason there was lengthy mutual cross-examination. We shall have occasion later to advert to this aspect of the matter. 8. Respondent No, 1, Staff Reporter Ezaz Mahmood, took up the position that the news item supplied by him to the Nawa-i-Waqt was factually correct and did not constitute contempt of the High Court. He stated that "the reliable source from which the answering respondent obtained the news item revealed to him that action was being taken against further six Judges of the East and West Pakistan High Courts. It was also revealed to the answering respondent by the same source that notice had been written down and prepared against the six Judges in which they have been asked either to defend themselves or to resign from their offices." He asserted that the various allegations mentioned by him in the report regarding the acquisition of property by a certain Judge were capable of verification from the record of the Supreme Judicial Council. 9. As regards that part of the news item which described the proceedings of an emergent meeting of the High Court Bar Association, Ezaz Mahmood stated that "the news item reporting resentment among the Advocates regarding the proposed action against Judges was collected by the answering respondent on the 26th of September 1970, from the High Court Bar Room. When the answering respondent went to the Bar Room, he found that a proposed resolution expressing
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resentment of the lawyers was being signed by the Advocates, and the answering respondent was told that 159 lawyers had signed the resolution by that time. Later, the answering respondent read on the Notice Board of the High Court Bar Association that a resolution in this respect would be presented before the House. But ultimately as difference of opinion arose between the Advocates it was decided by the movers of the resolution that the same ought to be amended and its presentation was accordingly adjourned sine die". He went on to add that the news item did not impute injustice, dishonesty, corruption or improper motives to any of the learned Judges of this Court and it did not constitute contempt as it only related to the conduct of Judges not connected with their judicial functions. He ended his written statement by praying that "the truth of the news item may kindly be ascertained fully and the answering respondent may kindly be given the fullest opportunity of defending himself to enable him to prove to this learned Court that he is not guilty of contempt". 10.Along with the written statement Ezaz Mahmood made an application for summoning several witnesses, including Mr. A. R. Cornelius, the Central Law Minister, and Lt. Gen. S. G. M. Pirzada, Principal Staff Officer to the President, for "the full ascertainment of the truth of the matter and for providing fullest opportunity of defence to the applicant". This application was disallowed by us for the reason that he had nowhere attributed any part of the news item to witnesses other than Mr. A. R. Cornelius, and the latter had, through the learned Advocate-General of the Province, submitted to this Court that the part attributed to him by the Staff Reporter was incorrect. 11.On the 3rd of October 1970, at the time of the arguments in the case, Ezaz Mahmood made an application before us in Urdu requesting us once again to summon the witnesses already mentioned by him and certain unpublished records of a confidential nature from the Central Government and the Supreme Judicial Council. The last paragraph of this application is couched in language bordering on insolence, due no doubt to a defiant, but certainly mistaken, attitude. At the hearing we indicated to the learned counsel for Ezaz Mahmood that we would be prepared to reconsider our previous decision on his first application provided he was able to convince us that the so-called truth of this mischievous news item, as alleged by him, could be a valid defence for him in this action for contempt of Court. 12.We were fully convinced that the evidence sought to be summoned by Ezaz Mahmood allegedly "for the ascertainment of the truth of the matter", was altogether inadmissible in this behalf. We are further of the considered opinion that his request in these two successive applications was altogether mala fide. It was made with the mischievous and sole intention to further scandalize and undermine the dignity of a superior Court. This could not possibly be permitted by us. 13.Ezaz Mahmood submitted a supplementary written statement on the 3rd of October 1970, i,e, the last date of the hearing. In order to appreciate its contents it is necessary, at this stage, to refer to the positions taken up by the other respondents. The Editor Arif Nizami tendered an unqualified apology for the publication of this news item and added that he had "specifically directed that the news item should not be published, but despite his direction Mr. Ezaz Mahmood, respondent No, 1, got it published". He then explained that the newspaper published three editions at 6-00 p. m., 10- 00 p. m. and 3.00 a. m., respectively, and that the said item was published in the last edition of the day without his knowledge and directions. 14.In support of this position Arif Nizami attached with his written statement an affidavit sworn by the Staff Reporter Ezaz Mahmood, which we have marked as Exh. P. 2. As this affidavit has a direct bearing on the conduct of the various respondents, its contents may be referred to. In this affidavit Ezaz Mahmood has stated that the Editor Arif Nizami had directed that the said news item should not be published, and in obedience to his direction it was not published in the first two editions of the date in question; that as the news was very important and the deponent wanted to get it
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published, therefore, in order to confirm the said news he rang up Mr. A. R. Cornelius, the Law Minister to the Government of Pakistan at Rawalpindi, and the Chief Justice of the Lahore High Court. The affidavit goes on to state that the Chief Justice declined to see him on the ground that it was too late at that time, but the deponent got the news published in the third edition in view of the talk which he had with the Central Law Minister. The affidavit further states that before the publication the deponent Ezaz Mahmood tried to contact the Editor Arif Nizami, but this could not be done, and that the deponent is fully responsible for the publication of the news item and the Editor and the Printer and Publisher, respectively, had nothing to do with its publication, which took place without their knowledge and against their directions. 15.The position taken up by respondent No, 3 Shoab Nizami, the Printer and Publisher of the Nawa-i-Waqt, was the same as adopted by his brother Arif Nizami. He submitted that although as Printer and Publisher he could not disown the consequences of holding this position, he would sincerely submit that he was not aware of the publication of the news item in question at any time before its actual publication. He also submitted an unqualified apology. 16.The third or the local edition, in which the news item first appeared, was stated to have been brought out at 2-30 a. m. on the 27th of September 1970. At that hour the Acting News Editor was respondent No, 4 Tahir Asadi, who is otherwise employed as a Senior Sub-Editor of the Paper. He submitted that he was on duty on the evening of Saturday, the 26th of September 1970, from 6-00 p. m. to 2-00 a. m , and that at about 8-00 p. m. the Staff Reporter Ezaz Mahmood came to the office with the news item in question. On reading the same Tahir Asadi thought that it was objectionable, and accordingly decided not to send it for calligraphing unless it was approved by the Chief Reporter who was, under specific instructions embodied in an office order, required to read and approve every news item sent by the reporting staff. Tahir Asadi added that at that time the Chief Reporter Rana Talaat Mahmood had gone to attend a meeting of the Council Muslim League which was being held at Hotel Ambassador, that the Editor Arif Nizami came to the office at about 9-30 p. m. and soon thereafter the Chief Reporter also arrived. On being apprised of the news report in question the Editor and the Chief Reporter went to the Staff Reporters Room where Ezaz Mahmood was also present. At about midnight the Chief Reporter came to Tahir Asadi and told him that the news item had been recast and its language had been altered after discussion with Ezaz Mahmood and Arif Nizami and it was ready to be published. Tahir Asadi thereafter prepared the headlines for the said news item and sent the same for calligraphing. According to him, the news item was repeated in the Dak editions bearing the date 28th of September 1970, in accordance with the normal procedure, namely, that important news published in the local edition of the day is automatically inserted in the Dak editions of the next day. Tahir Asadi ended his written statement by tendering unqualified apology. 17.On the basis of the disclosure made in the written statement of Tahir Asadi, the Chief Reporter Rana Talaat Mahmood was also summoned as respondent No, 5. He denied the allegation made against him by the Acting News Editor Tahir Asadi, and asserted that he came to the office a little before midnight after covering the meeting of the Council Muslim League, and started preparing his own story regarding that meeting. He had no knowledge of the offending news item handed in by Ezaz Mahmood. According to him, the entire responsibility rested on Tahir Asadi. 18.In the supplementary written statement submitted by Ezaz Mahmood it is asserted that his previous affidavit attached with the written statement of Arif Nizami had been procured by the latter by "holding out false promises without his free consent and is not binding on the answering respondent". The promises mentioned are detailed in paragraph 10 of the affidavit as including support for Ezaz Mahmood's family in case of his conviction and punishment with imprisonment, and keeping the job available for him during the period of his imprisonment. According to the assertions made in the supplementary statement, Ezaz Mahmood had brought the news item to
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the office of the Nawa-i-Waqt at about 8-00 p. m. and it was specifically cleared for publication by the Editor Arif Nizami in consultation with the Chief Reporter Rana Talaat Mahmood, after it had been withheld by the Acting News Editor Tahir Asadi. He has averred in this statement that the Central Law Minister was contacted for the specific purpose of verifying the correctness of the news so that the Editor Arif Nizami could be satisfied in this behalf. 19.That the news item in question constitutes gross contempt of this Court is not contested by any of the respondents except its author, namely, the Staff Reporter Ezaz Mahmood. It is submitted on his behalf that the report does not impute any dishonesty or partiality to the Judges concerned in connection with the discharge of their judicial functions, and, therefore, it does not fall within the ambit of any of the clauses of Article 123 of the Constitution. It is next contended that, in any case, the news is correct, and the respondent would have been in a position to prove its truthfulness if the witnesses and the record cited by him had been summoned by the Court. 20.Both the contentions are clearly untenable. A plain reading of the news item in question leaves no doubt, whatsoever, that the author was directly attributing improper conduct to the Judges concerned in the matter of acquisition of property during their tenure as Judges of this Court. The imputation is clearly related to their public and official functions as Judges, and it was precisely in this capacity that the declarations of their movable and immovable property were scrutinised by the. Supreme Judicial Council, and rescrutinised, as alleged in the report, at the instance of the Central Law Minister. It is, therefore, futile to urge that the report was concerned with any private capacity of the Judges. 21.The news item in question was clearly calculated, in the words of clause (b) of Article 123 of the Constitution, to scandalise the Court or other wise to bring the Court or the Judges mentioned in the report into hatred, or contempt. There could be no worse scandalisation of the Court than to suggest that its Judges were acquiring or accumulating property by improper means, and at unconscionable far below the current market prices. The allegations were bound to shake the confidence of the public in the integrity and honesty of the Judges of the High Court, and to create an impression that the Judges were abusing their official position for private gain. The seriousness of these allegations was further aggravated by the false and mischievous statement made in the report that disciplinary notices had been issued to another six Judges of the various High Courts, including two Judges of this Court, and that they ha I been called upon either to face in inquiry before the Supreme Judicial Council or to resign from their offices. There is no doubt whatsoever in our mind that the entire report, when read as a whole, fairly and reasonably, amounts to the grossest form of scandalisation of the Court, irrespective of the fact that it does not impute any improper or corrupt motive in relation to any particular case coming before the Court. 22.It has been held time and again that "in a proceeding for contempt by publishing a libel upon the Court the defence that the defamatory imputation is true is not admissible. Any attempt to justify the libel is, in law, a fresh contempt". (See In re : K. L. Gauba and Sir Edward Snelson v. Judges of the High Court of West Pakistan, Lahore. As observed by Munir, C. J. in S. Israr Hussain v. The Crown "the whole principle of the Law of Contempt is against any such defence, and if the law were as contended for, the whole administration of justice would be brought into disrepute because in that case the honour of the Judges would be at the mercy of disgrantled litigants who might with impunity attack the Judges and when proceedings in contempt were taken against them, bring them into further contempt by pleading truth and offering to prove it". 23.Before we part with this aspect of the case, we might mention that the learned counsel for Ezaz Mahmood contended, with reference to G. S. Giddeon Advocate v. The State and The Editor, Daily, Nawa-i-Waqt, Lahore v. The State that it was a requirement of law that although there was no precise procedure prescribed to regulate proceedings in the High Court for contempt, yet it was necessary that the fundamental rules for the ascertainment of truth should be followed and the1 2 3 4 5
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contemner should be given the fullest opportunity of defending himself. It appeared to the learned counsel that the phrase "the ascertainment of truth", as used in these authorities, referred to the truth of the allegations made by the contemner. With respect to the learned counsel, this is a complete misreading of the dictum of their Lordships in the two cases just mentioned. In both the cases the question raised was that the contemner had not been given a proper hearing, and it was in that context that their Lordships observed that the fundamental rules for the ascertainment of truth should be followed. The truth in this context was not the truth of the allegations made by the contemner in the offending writing, but the truth of the allegations against the contemner. In other words, it was laid down that it should be fully established that the contemner had indeed done the act or made the writing forming the basis of the accusation. In this state of the law it was not open to the Staff Reporter to assert that he could prove the truth of the statements and allegations made by him in this report against the Judges of the High Courts. 24.Apart…
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