P L D 1971 Supreme Court 72 (PLP)

Be that as it may, the contemners have, under the directions of this Court, been brought here from the Jail, where they are already lodged in execution of the sentences imposed by the High Court, Lahore, for their conviction for contempt of that Court. They are also represented by learned counsel and have filed written statements. They all both by their written state ments and through their learned counsel, again tender unquali fied and unconditional apology to this Court without pleading any defence arid throw themselves at the mercy of the Court, but since an appeal is going to be filed or has already been filed, they have sought leave to point out that this is without prejudice to the respective stands that they took in the High Court and would endeavour to support in the appeal in this Court. So far as the staff reporter is concerned, he states in his written statement that his stand even in the High Court was that he could not say as to how the name of Mr. Justice Muhammad Yaqub Ali Khan found its way into the news-item; although he admitted that "every word of this news-item, except the name of Mr. Justice Muhammad Yaqub Ali Khan", was written by him. So far as the Editor, Printer and Publisher are concerned, they too, after tendering unqualified apology, state in their joint written statement, that it is not known to them as to how the name of Mr. Justice Muhammad Yaqub Ali Khan came to be included in the news-item. On the respective admissions of the contemners themselves, therefore, they had no information that any proceedings had either been taken or were being contemplated so far as Mr. Justice Muhammad Yaqub Ali Khan was concerned, but they could not explain as to how that name crept in. Apart from their own ipse dixit no other material has been placed before the Court to substantiate this assertion. Their learned counsel when asked if the original draft of the news-item admittedly written in the hand of the staff reporter or the proof copies, if any, that came from the press could be made available to this Court, replied that the original draft had been destroyed according to the practice of the newspaper and no proof copies are prepared. The Court has no means, therefore, now to verify the correctness of the statement of the staff reporter that he himself had not included the name of Mr. Justice Yaqub Ali Khan in the original draft of the news-item nor did he know as to how this particular name came to be included. In the absence of such proof, the Court has no 1 other alternative but to fix the responsibility for the news item as it has appeared in the printed version in the newspaper, upon the staff reporter. I cannot help observing that if what is now stated was the correct state of affairs, then one would have expected that an attempt would have been made at the earliest possible oppor tunity to correct such an unfortunate mistake by inserting a correction note in a subsequent issue of the newspaper con cerned. This was the minimum amend that journalistic ethics demanded. It is the duty of journalists to forthwith correct any false impression created by their own mistake rather than A to allow the mistake to stand. particularly, where it is likely to cause harm to the reputation of another. No shame attaches to the admission of a bona fide mistake but to allow a mistake to stand even after it has been discovered may well lead to the inference that the mistake was not a bona fide one. It is regrettable that the latter course was adopted in the present case and even when an apology was published on the 29th, no indication was given therein that the name of Mr. Justice Muhammad Yaqub Ali Khan had, in any event, crept in by mistake. This plea was raised for the first time in the High Court. If there is any truth in this story, then it discloses a sorry state of affairs in the Management and control of a respon sible newspaper. One would have expected a greater degree of care and caution in the publication of a news-item, the grave and serious consequences of which could not have been unknown to those responsible for its publication. If not for anything else then for this wanton carelessness alone the author must, in my view, accept responsibility for the publication. It was clearly his duty to see that the news-item that was actually publi shed was in accordance with what he had written. If he did not do so, he acted grossly negligently and he cannot now seek to take advantage of his own negligence. So far as the Editor, Printer and Publisher are concerned, the law is well settled that they are responsible for everything that is printed and published in the newspaper under their control. this Court has already laid down in the case of Saadat Khialy v. The State and another (P L D 1962 S C 457), that "in the case of newspapers he Editor, the Manager, the Printer, the Publi sher as also the Sttaff Reporter, who is the actual author, are e legally responsible in the fullest measure for the publications made therein. It is clearly the duty of the Editors and the Publishers to see that whatever is published in their newspaper is not likely to either scandalise the officer presiding over the Court or prejudice parties to litigations pending before it". This view was reiterated in the case of Advocate-General v. Shabhir Ahmad (P L D 1963 S C 610), where it was again pointed out that "it is also of no avail to the Editor to plead ignorance of the publication, for, in law he is responsible for everything that is printed in his newspaper". It is interesting to note that in the case of In re : Moti Lai Ghosh and another (I L R 45 Cal. 169), Woodroffe, J. observed :- "Liability is obvious because scienter is attributable to both printer and editor. Neither can escape liability by alleging that he did not know that the contemptuous words had been inserted in his newspaper." In this case the names of the author and the editor of the newspaper Amrita Bazar Patrika were withheld from the Court which proceeded against the printer and the directors of the company owning the newspaper. Woodroffe, J. lamented that there was no law compelling the registration of the names of editors, but he overlooked that such a law did exist, for, the Press and Registration of Books Act, 1867, provided by section 3 that every book or paper printed within British India shall have printed legibly on it the name of the printer and the place of printing and the name of the publisher and the place of publication. Similarly subsection (1) of section 5 of the said Act provided that every copy of every newspaper published in British India shall contain the name of the person. who is the editor thereof, printed clearly on such copy as the name of the editor of that newspaper. This remained the law in this sub-continent until the Act of 1867 was repealed by the Press and Publications Ordinance, 1960, on the 26th of April 1960. This Ordinance, however, re-enacted the provisions of section 3 of the Act of 1867 in section 3 of the Ordinance, but subsection (1) of section 5 of the Act of 1867 was re-enacted as section 6 of the Ordinance. It is not understood, therefore, as to why the name of the editor could not be ascertained in that case. Be that as it may, one of the contemners in that case who was the printer of the newspaper Amrita Bazar Patrika, was again hauled up along with the editor for contempt of Court in a subsequent case of In re : Tushar Kandi Ghosh and another (A I R 1935 Cal. 419). On behalf of the editor the plea was taken that the offending publication was written and inserted in his absence. On behalf of the printer the plea was that although he was the printer of the paper, he had no control over the publi cations in the newspaper and that he was imperfectly acquainted with the English language. Nevertheless, Derbyshire, C. J. held them both liable and observed that the printer "like the editor has a duty to see that a contempt of Court is not committed by the paper he prints and publishes" and in the order that was ultimately made by the Full Bench in the latter case it was said as follows :- "You have made a plea of lack of knowledge of English. That is no excuse. If you cannot perform the duties of your office you ought not to hold that office. As long as you hold that office you must, according to law, perform the duties of that office." Similarly in the case of Emperor v. P. C. Tarapore, Chief Editor, Printer and Publisher of the Daily Gazette, Karachi (A I R 1940 Sind 239) a Full Bench of the Sind Chief Court held the Editor and Printer responsible, even though he had taken up the plea that he had no responsibility for the publication of the offending article and dissociated himself from it. It is futile, therefore, for the Editor, Printer and Publisher to come forward and say that they had nothing to do with the news item or that they had advised against its publication. Once the publication has been made, they are in law liable for whatever is published and printed, but it is a circumstance which may well be taken into account in assessing the quantum of punishment to be imposed upon them. If the Court is satisfied that the publication was made without their knowledge and they had not been negligent the punishment, for their technical liability may indeed be slight, and even negligible. But before I come to this question of punishment I have first to consider whether the offending publication did at all constitute a contempt of Court. Scandalizing the Court or one of its Judges is a species of contempt which has, by no means, become obsolete as was pointed out by Lord Russell, C. J. in the case of Regina v. Gray ((1900) 2 Q B 36) for it not only has the tendency of lowering the authority of the Court but also of interfering with the administration of justice by shaking the confidence of the public in the Court or Judge scandalized. This kind of contempt may be committed by attacking the character of the Judge or the quality of his work or by imputing improper motives to him or by suggesting that action is being contemplated to remove him from his office. A Judge of a superior Court holds office guam diu se bene gesserit, i.e. while he conducts himself well. In other words he is removable only for misconduct. To suggest, therefore, that a Judge has been served with a notice either to resign or to face an enquiry for his removal necessarily carries with it the suggestion that he has been guilty of such misconduct as makes him liable to removal. This is a serious aspersion on his conduct in his capacity as a Judge and if such aspersion is totally baseless and false, a it admittedly was in the present case, then I have no manner of doubt that it amounts to gross contempt of Court. I have no hesitation therefore, in holding that the offending news-item in the present case did constitute a contempt of Court. I find that a similar view was taken by the Federal Court in the case of Ijaz Ahmad v. The Crown Cr. P. S. L. A. No. 93 of 1951 where the Court refused to grant leave to the Editor and the Printer and Publisher of the Evening Times, Karachi, who had been convicted for contempt by the Chief Court of Sind for publishing a news-item purport ing to convey the impression that "three of the five .Judges of the Sind Chief Court including the Chief Judge are in hot waters". This news also was represented to have been confirmed by official sources. The Federal Court observed in its order of 13th November 1951 that the publication "had a clear tendency to undermine the public confidence in the administ ration of justice by the Chief Court and was a disingenuous and premeditated attempt to scandalise the Judges and to interfere with the due course of justice". I have now to consider as to what is the effect of the unqualified apology tendered on behalf of the contemners. An apology does not provide the contemner with an absolute excuse for the offending publication nor does it entitle him to a discharge as of right, for, it cannot remedy the evil caused or the harm done to the administration of justice by shaking the confidence of the public in the Court or a particular Judge of the Court. It is only a mitigating circumstance and no more, but even in this respect an apology in order to dilute the gravity of the offence must evidence a real contriteness and an earnest desire to make amends or as has been said in some cases must be a "manful confession of conscious wrong doing". Let no one be under the impression that the pres enjoys any special privilege of traducing the Judges nor should there be any impression that after one has grievously slandered and scandalised a Judge of a Superior Court he can come to the Court and get away with it by merely tendering an apology. Such a tendency must be curbed in the public interest itself.. If Judges are exposed to such slanderous attacks, their independence is bound to be shaken and it might well result in destroying the independence which the Judges have hitherto so creditably maintained. It is the duty of the Court, therefore, to protect its Judges and to see that the confidence of the public in their administration of justice is not undermined. There can be no question, therefore, of treating the apology as a full amend for the grave harm that has been caused to the reputation, good name and honour of one of the Judges of this Court. None of the learned counsel appearing for the contemners has disputed this proposition but all that has been contended is that in view of the unqualified apology tendered without attempting to raise any kind of defence, at the earliest possible opportunity, the Court should take a lenient view and record only an admonition or impose a very light punishment. Mr. Mahmud Ali Kasuri appearing for the editor, printer and publisher has strongly relied on the judgment of the High Court of East Pakistan in the case of the State v. S. W. Lakitullah (P L D 1959 Dacca 84) to which l was a party, where the apology was accepted, the contemner was found guilty of contempt but no sentence was imposed. Other cases have also been relied upon but it is not necessary to cite them as there too after accepting the apology the Court only recorded a conviction and imposed no sentence or a very lenient or light sentence. There is no doubt that taking all the circumstances of the case into consideration there may well be cases where an apology may by itself be considered to be a sufficient amend and no further sentence may be considered necessary or only a warning may be deemed to be adequate but each case will depend upon its own facts. In the present case, the circumstances, even taking the most charitable view, are such that the inference is irresistible that there was lack of care and negligence on the part of the contemners. It is difficult to pass it over without some penalty. This Court has no desire to be vindictive but it considers it essential to vindicate the honour of one of its Judges and make it clear that publications such as these, which constitute a grave contempt of Court, should not be allowed to be published with immunity. I, therefore, propose that the contemners should be convicted for contempt of this Court but their unconditional apology should be accepted as a mitigating circumstance. The fact that they have thrown themselves at the mercy of the Court without attempting to raise any kind of defence whatsoever should also, in my opinion, be taken into account, as this indicates that they are genuinely repentent and realize the gravity of their mistake. I propose, therefore, that the editor and printer, taking into account their youth and inexperience, should be treated with leniency and fined Rs. 200 each but the staff reporter, who is the author of the offending publication, should even on this lenient basis be fined, at least, R3.

300. If the fine is not paid within two days from the date of announcement of this order, the contemners will be lodged in the civil prison until the said fines are paid or until further orders of this Court. SAJJAD AHMAD, J.-I agree. M. R. KHAN, J.-I agree. WAHEEDUDDIN AHMAD, J.-I agree. Arif Nizami, Shoaib Nizami and Aizaz Mahmood. This Court is unanimously of opinion that the publication of the news item in question constituted a gross contempt of Court, because it was not only untrue and baseless but also contained unjusti fiable imputations against the conduct of Judge of this Court in his capacity as such Judge. In the interest of the administration of justice it is not possible for us to let it pass unpunished, for, the authority of the Court and the honour of the Judge concerned has to be vindicated and it has to be made clear to all concerned that publications such as the one in question cannot be made with impunity. You Arif Nizami and Shoaib Nizami being the Editor and Printer and Publisher respectively of the newspaper which published the offending news-item cannot escape liability, for, in law you are responsible for whatever is printed and published in your newspaper. It is of no avail to you to plead ignorance of the publication. We, accordingly, convict you for having committed contempt of this Court but taking into account your youth and inexperience as also the fact that you tendered unqualified and unconditional apology at the earliest opportunity and threw yourselves at the mercy of the Court without attempting to raise any kind of defence we convict you and sentence you to pay a fine of Rs. 200 each. Aizaz Mahmood you were on your admission the author of the offending news-item. It was clearly your duty to see that the news-item actually published was in accordance with what you had written. In so far as you did not do so you acted grossly negligently and you cannot now take advantage of your own negligence. Your responsibility was, if anything, greater, for you vouchsafed the authenticity of the news-item knowing the grave and serious consequences of its publication. You cannot now escape liability merely by saying that the name of Judge of this Court crept in by an unfortunate mistake. In the absence of any proof in support of your assertion you must be held responsible for the publication, as it appeared in print. You are accordingly also convicted but again taking into consideration your unconditional apology and your appeal to the mercy of the Court we treat you too with leniency and impose a fine of Rs. 300 only. The fines must be paid within two days from today failing which you will be lodged in civil prison until the fines are paid or until the further orders of this Court. K. B. A.