P L D 1966 Supreme Court 419 (PLP)

Date of hearing: 1st February 1966. CORNELIUS, C. J.-This appeal is brought by the Editor, daily Nawa-i-Waqt of Lahore to call in question a conviction recorded against him by the High Court for contempt of the Court of a Magistrate, in which a fine of Rs. 500 was imposed. This was on the 28th October 1964, in the absence of the appellant, who applied some 8 days later to the High Court to remit the sentence under the first proviso to section 3 of the Contempt of Courts Act, 1926. The grounds stated in the application were briefly to the following effect. The appellant had notice of the first hearing in the High. Court of his case, which was fixed for the 19th May .1964, on which day the case was not reached in the list. He had prepared a written statement containing an unconditional apology to be tendered personally at the hearing. Under the impression that the case would be heard on a later date, he left the Court premises, and did not attend again because he received no further notice. In October 1964, he learnt that he had been convicted and sentenced and on examining the record found that the case had been taken up for hearing on the 20th May 1964 for which date he had received no notice, and his absence on that date was therefore neither intentional nor deliberate. He once again tendered an uncondi tional apology; and assured the Court that he had no intention of showing any disrespect to the Magistrate's Court in question By way of justification of publication of the news-items, it was said that he was under the impression that it being a Bar Association's resolution to which he was giving publicity, it was not likely to be in violation of any law. This appeal was admitted in the first instance as if it lay under Article 58(2) (c) of the Constitution, i.e., as of right. It was pointed out by Mr. Muhammad Jaffar appearing for the State that this clause in Article 58 is confined to punishments imposed by the High Court in exercise of the power given by Article 123 of the Constitution, which extends only to contempts of a Superior Court. The objection is sound, and we accordingly grant the necessary leave hereby to the Editor of the Nawa-i-Waqt to pursue this appeal. The order of conviction of the appellant is contained in the last paragraph of an order which deals for the most part with a similar notice that had been issued to another daily newspaper of Lahore, namely, the Pakistan Times. The two notices were, issued by the High Court suo motu. They resulted in a single case in which the two Editors were cited as respondents. It seems however that the news-items were printed in the two papers on two different dates, in two different languages, that is in Urdu, in the Nawa-i-Waqt and in English in the Pakistan B Times, and moreover, the purport of the two news-items is not precisely the same. Therefore, it would have been more appropriate, since each publication constituted a separate contempt in itself, if two separate cases had been drawn up against the two Editors. If that had been done it is entirely, possible that the present proceedings would have been unnecessary. How it came about that the case was adjourned from the 19th to the 20th May is described in the second order of the High Court in the following terms :- "This case came up for hearing before this Bench on the 19th of May 1964. Since there was no chance of this case being heard on that day, it was ordered to be fixed for hearing for the next day, i.e. the 20th of May 1964, at the request of the learned counsel for the Editor of the Pakistan Times. On the 20th of May 1964, however, nobody appeared on behalf of the Editor of the daily Nawa-i-Waqt." Further, if the judgment in -the case had been written and announced on the 20th May 1964, the point that there was no appearance on behalf of the Editor, Nawa-i-Waqt might possibly have received more direct, and perhaps, more correct, treatment. It was actually announced on the 28th October 1964, more than 5 months later. In their order, the learned Judges held that the news-item did .in fact constitute contempt of the Magistrate's Court, but they accepted the contention of the Editor of the Pakistan. Times that the news had been received from the Bar Association and had been printed in the belief that any action of the, Association was unlikely to offend against any law. An apology was also presented, and this was accepted by the learned Judges who expressed the view that the Editor of the Pakistan Times might have been "misled into believing that the resolution (of the Bar Association) did not offend against the law" since the Bar Association was a responsible body. But as to the Editor of the Nawa-i-Waqt, the learned Judges observing that he "has not only tendered no apology, but failed to appear in answer to the notice" convicted and sentenced him as already stated. In disposing of the petition seeking remission of the sentence, the learned Judges proceeded on the following grounds. First, they considered the plea that the petitioner had no notice that the case would be heard on the 20th May 1964, and they disposed of it in the following words :- "On the 19th May 1964 the counsel for the Editor of the newspaper Pakistan Times came to the Court and made a request that his case be taken up out of turn as his client was to go abroad. He was told that it was not possible to take up the case out of turn and that there were chances that the case might not even be reached. At this request it was ordered that the case be fixed for hearing on the following day, i.e. the 20th of May 1964. The learned counsel for the petitioner stated before us that on the 29th of May 1964 when the case was not reached, he enquired from the Reader, who told him that an actual date, in the case, would be fixed, and that a fresh notice would be sent to his client. The Reader denied having said so to the learned counsel. This statement of the learned counsel for the petitioner, however, does not appear to be correct because our Reader could not possibly have so informed him because he knew fully well that the case had been fixed for the next day at the request of the learned counsel for the Editor of the newspaper Pakistan Times. It would appear from the expressions used that the learned Judges did not doubt that an enquiry was actually made on the 29th May from the Reader of that Court by "learned counsel for the petitioner". This person was Mr. Maqbul Ahmad, and from what has been stated by the appellant, in his appeal and his concise statement, it appears to be his case that although Mr. Maqbul Ahmad was not at that time acting in the capacity of counsel for the appellant, he had in fact appeared with him, and made the alleged enquiry from the Reader. The learned Judges declined to accept the statement of this gentleman made at the hearing of the remission petition, when he appeared formally as Advocate for the petitioner, that he was told another date would be given. However, if the fact of the enquiry be accepted, it would appear to detract from the correctness of the statement in the order of conviction that the present appellant had failed to appear in answer to the notice from the High Court. One ground of the conviction would thus be out of the way. No written order of adjournment for hearing on the 20th May 1964 was made, and the position that emerges is that, while the Editor of the Pakistan Times had been clearly told that his case would be heard on that date, there is absence of evidence to show that similar information was conveyed to the other Editor. If the two cases had been separated, there would have been no occasion for such a doubt. It is important also to note that in the cause list, the case appeared under the description "State v. Pakistan Times, Lahore, etc.," with the consequence that no notice was sent after the first notice to the Editor of the Nawa-i-Waqt. Mr. Maqbul Ahmad in support of the remis sion petition had put forward this plea, which was rejected on the ground that because the same title was repeated in this list for the 20th May it should have been by itself as good notice for appearance, as was the inclusion of the case in the same name in the cause list for the 19th May 1964. It must be observed, however, that the adjournment of a single day was made at the special request of one of the two respondents, in the absence of the other respondent, and it was by oral order. We are informed that in the ordinary course, the case would have been set down for hearing on the same day of the following week. For an earlier date, specially fixed, the absent party could expect intimation. As the two distinct cases had been joined in a single case, and in the cause lists, that case appeared under the name of the Editor of The Pakistan Times only, there was clearly a possibility of confusion. Moreover, the long delay between the hearing of the case and the announcement of the judgment thereon may well have given rise to the belief, professed by the appellant that the case would be fixed for a further date. The third ground given for refusing to remit the punishment is that the petitioner had delayed making his application until a warrant had issued from the Deputy Commissioner's office for the recovery of the fine. As to this, it is said that the intervening period of 8 days was required for the purpose of making enquiries, consulting the record, etc., and it was not mainly or only because of the Deputy Commissioner's warrant that the petition was not filed until the 6th November 1964. The learned Judges appear to have gained the impression that the plea that the petitioner was ready with an unconditional apology to be presented as soon as he was called upon to answer, was an afterthought prompted by the recovery warrant. In all the circumstances, we do not consider that that is the only conclusion to be drawn from that single circumstance. Eight days is not an excessive period for making the necessary enquiries, obtaining a copy of the order of the High Court and considering what action would in the circumstances be appropriate. There was another remedy available, viz., by appeal to this Court. Moreover, if the absence on the 20th May be held not to be deliberate, no ground for drawing that inference would appear to remain. This is a case in which a conviction for contempt has been recorded in the absence of the alleged contemner. In this connection, a reference was made in arguments to the decision of this Court in the case of G. S. Gideon v. The State(1)PLD1963SC1 , where the appellant had been convicted for contempt in his absence. It was observed by this Court in that case that although there is no precise procedure prescribed to regulate proceedings in the High Court for contempt, yet it was necessary "that the e fundamental rules for the ascertainment of truth should be followed and the contemner should be, given the fullest opportunity of defending himself". Such an opportunity, it was held, had been afforded to the appellant Gideon, who had been repeatedly called upon to appear but he continued to disregard these notices, after which it was decided to hear the matter ex parte. The conviction of a person in his absence on a criminal charge can only be justified in an exceptional case, and con sequently, the law laid down by this Court in the precedent case requires to be strictly applied. It is not to be interpreted as enabling convictions to be recorded in contempt cases in absentia as a matter of course. In the present case, it is quite clear that the possibility has not been excluded that the absence of the appellant on the 20th May 1964 was due, to absence of notice, or at the least to a misunderstanding, which was partly due to his case having been joined with a distinct case against another respondent. It cannot be said that he was afforded a proper opportunity of being heard, within the meaning of the expression "fullest opportunity". Accordingly, we consider that the conviction recorded against the appellant was liable to be reconsidered on application by him, accompanied by an apology, in exercise of the power given by the first proviso to section 3 of the Contempt of. Courts Act. We consider that his apology should have been considered and treated on the same basis as that of the other respondent, in substantially the same terms, and the circumstances of the two cases being parallel. Accordingly, we allow this appeal and reversing the order of the High Court, direct that the sentence imposed on the appellant should be remitted. K.B.A. Appeal accepted.