P L D 1975 Supreme Court 383 (PLP)

HAMOOOUR RAHMAN, C. J.‑These two petitions are for initiating proceedings for committal for contempt against the Prime Minister of Pakistan, the Minister for Interior, States and Frontier Regions, Government of Pakistan, the Pakistan Broadcasting Corporation and the Pakistan Television Corporation for a speech made by the Prime Minister at Lyallpur can the Ist March 1975, and another speech made by the Interior Minister on the 30th March 1975, concerning the Reference made by the Government to this Court on the 24th February 1975, under section 6(2) of the Political Parties Act, 1962. The first application has been filed by Ch. Zahur Ilahi, M. N. A., on the 25th March 1975. He claims that he is a member of the Central Action Committee of the United Democratic' Front, and the National Awami Party in respect of the banning of which the above‑mentioned Reference has been made to this Court, is a component of the said Front. His grievance is that the speech of the Prime Minister complained of "calculated to prejudice mankind in a pending cause as also to intimidate and overawe this Hon'ble Court". Hence he considers it his duty to lay this `information' before this Court in respect of a matter which "deserves to be taken serious notice of". As the maintainability of such an application and the locus standi of the petitioner, Ch. Zahur Ilahi, to lay such an information appeared to be not free from doubt, it was directed on the 31st March 1975, that notices should issue to the said petitioner and also to the Attorney‑General of Pakistan under Order XLV of the Rules of this Court to appear and assist the Court in deciding these two preliminary questions before any rule for contempt could issue against any of the respondents named in the petition. It may be pointed out here that the Minister for Interior and States was not a respondent in this petition. It was only after this notice had been issued that the second petition was filed by Mr. Mushtaq Raj, an Advocate of this Court, who claims that he is a member of the Central Committee and the 'Treasurer of the NAP, which had been banned by the Government on tae 10th February 1975. In this petition, the Minister for Interior States and Frontier Regions was also joined as a respondent. The translation of the portion of the speech of the Prime Minister, to which exception has been taken in the petition of Ch. Zahur Ilahi, is repro duced below from paragraph 8 of the petition:‑ "He would not himself lift the ban on the National Awami Party about whose future only the Supreme Court can take a decision. The Opposition Parties are dancing to the tune of Afghanistan and have joined the Afghan Government's demand for the release of the NAP Leadership. In our country we have tolerated Afgan and Congress agents for several years but all our efforts have failed. We have now banned them and this ban can under no circumstances be withdrawn. If the Supreme Court gives a decision to the contrary it is a different matter but even then it will not be my decision ; it will not be the decision of the people, and if in consequence of that decision, anything happened, the responsibility will be the responsibility of the Supreme Court. If the Supreme Court in its wisdom or according to its own understanding gives a decision against us then it will not be my decision, or that of the people but will be the decision of the Supreme Court. We will accept this decision but the responsibility for the consequence will be that of the Supreme Court. In spite of this if need be to save Pakistan we will fight in the hills, in the jungles and in the plains . . . . . . . ." The above is a translation of the report of the Speech carried by the Daily `Nawa‑i‑Waqt', Lahore, in its issue of 22‑3‑1975. This speech of respondent No. 1 was also broadcast over the Radio and telecast on the Television net work. The petitioner confirmed that the newspaper report was in conformity with what was broadcast over the Radio and the Television and joined the corporations controlling these news‑media as parties. The petitioner, Mushtaq Raj, in Cr. Misc. No. 16 of 1975, has not given any translation of the speeches complained of in his petition but the report of the speech of the Prime Minister is taken from the same newspaper which has been referred to in the petition of Ch. Zahur Ilahi. The relevant portion of the speech of the Minister for Interior States regarding the Reference has been culled from the Daily Mashriq of the 31st March 1975, but no translation has been filed. It may be translated as follows:‑ "While discussing the banning of the National Awami Party, the Minister stated that the Government has already placed the matter before the Supreme Court and the Government will abide by whatever the Supreme Court decides." He had, of course, in the earlier portion of this speech, criticised Mr. Abdul Wali Khan, President of the National Awami Party for his alleged subversive activities and stated that the "People's Party and the Muslim League would not allow the leaders of the National Awami Party to succeed in their designs". The learned Attorney‑General has contended with regard to the preliminary points that whether action should be taken in contempt or not is a matter entirely for the Court and not for any individual, particularly, where that individual is neither a party to nor a witness in the proceeding pending in the Court nor is likely to be affected by the decision in the proceeding. Ch. Zahur Ilahi, it is said, as neither a member of the NAP nor a party nor a witness to the Reference nor is he likely to be affected in any way by the decision of the Reference. Therefore, a petition of this kind should not be entertained at the instance of a complete stranger. Otherwise any man in the street would be entitled to launch such proceedings. In this connection, he has pointed out that since the jurisdiction of this Court to commit for contempt is now derived from Article 204 of the Constitution and the exercise of that power can be regulated by law and subject to, law by rules of the Court, it is desirable that rules should be made in line with the practice prevailing in the United Kingdom The practice in that country, in respect of contempts out of Court, is that notice is only taken on the information of the Attorney‑General and it is only where the Attorney-- General refuses to take action, that the private applicant is permitted ice approach the Court direct. Our attention has, in this connection, been drawn to the speech of Sir Reginald Manningham‑Buller Q. C., which he made while appearing as amicus curiae in the case of Regina v. Duffy and others : Ex parts Nash ((1960) 2 Q B 188 (192)). It is to the following effect:‑ "The usual practice in recent years has been for persons complaining of a publication to make an informal approach to the Attorney-- General and, if it appears desirable in the public interest that a case should be brought before this Court, an application is made by the Attorney‑General for leave to move. Proceedings have never been taken over by the Attorney‑General after leave to move has already been given to the applicant himself." In a treatise on `The Law of Contempt', published by Gordon Borrie and Nigel Lowe in 1973, the learned authors have also referred to the above statement of Sir Reginald Manningham‑Buller, Q. C., and also referred to the observations of Lord Goddard, C. J., in the case of Rex v. Hargreaves, Ex parte Dill reported in the London Times of 4th November 1953 at p. 11, to the effect that‑ "In this class of cases I have always taken the view that it would be a good change if these actions were moved only by a Law Officer or on the instructions of the Attorney‑General, because the object is to punish an editor who has committed contempt, not to assist the defence." The same practice has been recommended by the Justice Committee, presided over by the Right Hon. Lord Shawcross, P. C., Q. C., in its report on "Contempt of Court", published in 1959. The recommendation of the Committee is that "No prosecution for criminal contempt outside the Court should be initiated except by or with the consent of the Attorney‑General." The learned authors, Gordon Borrie & Nigel Lowe, have, however, also pointed out that as no rules have been prescribed by the Supreme Court in England on these lines as yet "in practice, contempt cases involving civil proceedings are nearly always brought by private individuals, usually the aggrieved parties." This would seem to imply that in contempt cases involving criminal proceeding the practice is different. So far as this Court is concerned, precedents are not wanting of proceedings being instituted for contempt on informations laid by the Attorney‑General, or the Advocate General of a Province. In the case of Attorney‑General of Pakistan v. Abdul Hamid and others (P L D 1963 S C 170), eleven petitions were filed by the Attorney‑General of Pakistan in the nature of information against the editors, printers and publishers of eight newspapers and three other persons. Again in the case of the Advocate‑General, West Pakistan v. Mr. Shabir Ahmad (P L D 1963 S C 610), proceedings for committal for contempt were initiated by the Advocate‑General of the Province. We are the agreement with the learned Attorney‑General that whether a proceeding should be drawn up for contempt or not against any person is a matter purely for the Court itself to decide but in the absence of any law or rule of the Court prescribing any specific procedure for regulating such proceedings, it is difficult to lay down that no person is entitled even to come before this Court to lay such an information, as Ch. Zahur Ilahi says he is doing, regarding a matter which might amount to contempt of Court. We have, therefore, decided that although in such matters it would be more appropriate to move the Court through the Attorney‑General yet the applica tion cannot be refused to be entertained on the ground that the petitioner is a total stranger to the proceeding pending in this Court. It can certainly be treated, in the absence of any rules or any law debarring such a stranger from making such an application as at least an information laid before the Court for its consideration. Whether the Court will act upon it or not is an entirely different matter. It will depend upon a variety of circumstances, such as, the seriousness of the matter, the nature of the offending speech or publication, the occasion on which it is made, the intention of the maker and above all the bona fides of the applicant or informant. The Court must not allow itself to be used for settling private scores or vendettas and much less for gaining political advantages. So far as the second petition is concerned, it has evidently been filed to overcome any such objection after notice for the preliminary hearing was issued by this Court. It is clearly a belated application and has been filed as an afterthought lest it be said that the NAP itself is not aggrieved. The next objection to the maintainability of the petition, which has been raised by the learned Attorney‑General, is on the basis of Article 248 of the present Constitution. The Article is in these terms : "248.‑(1) The President a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province. (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office. (3) No process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his terra of office. (4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to trim in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims." The learned Attorney‑General contends that under clause (1) of this Article the Prime Minister is not answerable to any Court including this Court for the exercise of his powers and the performance of the functions of his office or for anything done or purported to be done in the exercise of those powers and performance of those functions. According to the learned Attorney‑General, the making of a public speech by a Prime Minister, who is also the leader of a political party, comes within the scope of his official functions and official acts as, under a system of parliamentary democracy, he has a duty to go before the people and to tell them as to what steps he has taken to meet the situation or as to what he proposes to do in that behalf: The learned Attorney‑General has maintained that the words of this Article should not be read in any narrow or restricted sense but should be given a reasonably wide connotation so as not to fetter the scope of the functions and duties of the Chief Executive in a developing democracy. He concedes, however, that if even the Prime Minister deliberately chose to vilify any Court or went out of his way to make an attack on the integrity of the Judges, he would not be entitled to this immunity. In the present case, of course, it is maintained that the Prime Minister did no such thing but was merely explaining to the people a very serious and unprecedented step taken by his Government of banning a political party. He was in duty bound, therefore, to explain to the people the reasons for doing so. 1f he has, in the course of such a speech incidentally made any reference to the proceedings pending in this Court, it was neither with any intention of either prejudicing the proceedings in this Court or holding out any kind of threat to this Court. He has drawn our attention to the fact that in the speech complained of itself, it had been stated that "if the Supreme Court, in its wisdom or according to its own understanding gives a decision against us then it will not be my decision, or that of the people but will be he decision of the Supreme Court. We will accept this decision but the responsibility for the consequences will be that of the Supreme Court." The Learned Attorney‑General contends that he has nowhere stated that he will not accept the decision of this Court or he does not have any respect or regard for the judiciary in this country or that the judiciary must decide according to his wishes. He had no deliberate intention of either threatening the Court or flouting its decision as he has himself since made clear in another speech delivered on the 5th April 1975, at Shiekhupura, as reported in the `Pakistan Tines' of Sunday, the 6th April 1975 He stated that:‑ "He never intended to show any disrespect to the Supreme Court and that it would continue to receive due respect from .him in future also." In the same speech, he has also emphasised that:‑ "The Supreme Court was not only a Court but also the highest Court of Pakistan. He could never think of undermining its respect or authority in any manner . . . . . . . . . . lie had studied law and has practised it in Courts. Nobody should ever expect any disrespect from him for the Courts." Explaining his previous speech, he has also said that:‑ "Being the Head of Government, it was his duty to come before the people and tell them about the state of affairs prevailing in the country." It is, therefore, maintained that he had no intention what so ever of either prejudicing the proceedings pending in this Court or to influence the decision of the Court in any way or to show any disrespect to the Court. The immunity as such was available. Learned counsel for the first petitioner has, on the other hand, contended, firstly, by referring to clause (2) of Article 248 itself, that since contempt is in the nature of a criminal proceeding, as held by the Privy Council in the case of In re: Pollard ((1868) L R 2 P C 106) and by the Bombay High Court in the case of In re: Vallabhdas Jalram and 2 others (I L R 27 Born. 394), the immunity claimed by the Prime Minister or the Minister for the Interior was not available since immunity from criminal proceedings had been conferred under the said clause (2) only on the President and the Governor. Learned counsel has secondly, taken pains to compare the provisions of Article 248 with corresponding provisions of section 306 of the Government of India Act, 1935, Article 213 of the 1956 Constitution of Pakistan and Articles 116 and 117 of the 1962 Constitution to show that the tendency in the country has consistently been moving towards curtailment of such immunity. Indeed there was no immunity given to a Prime Minister or other Ministers either in the Government of India Act of 1935 or under the 1956 Constitution. Then again the immunity under the 1962 Constitution did not extend to anything done or not done by a Minister in contravention of law. There was, of course. no Prime Minister either under the Act .of 1935 or the 1962 Constitution. In the Interim Constitution of 1972, also no immunity was granted to the Prime Minister or a Minister. Be that as it may since the Constitution‑makers have now chosen to extend the immunity to the Prime Minister and other Ministers we have to give effect to their will and determine the extent of the immunity from the words used in the immunity provisions of the Constitution. Learned counsel next contends that even so these provisions should be construed strictly because under the Islamic system, which the Constitution professes to adopt, no one is above the law and no immunity is granted even to a `Khalifa'. Since we are bound by the Constitution and have to give effect to its provisions, it is necessary that we should express our view with regard to the scope of Article

248. Learned counsel for the petitioner has conceded that under a system of parliamentary democracy, where a leader of a political party becomes also the Prime Minister, it is not easy to define the exact scope of his powers and functions, but this much is certain that his powers and functions are derived from the Constitution and must, therefore, be referable to the Constitution. Hence, since neither the Constitution nor any law can possibly authorise him to commit a criminal act or do anything which is contrary to law, the immunity cannot extend to illegal or unconstitutional acts. Even a Prime Minister is under clause (2) of Article 5 of the Constitution, bound to obey the Constitution and law as that is the basic obligation of every citizen. The scope of the pow6rs and functions of a Prime Minister cannot possibly extend to the committing of contempt of Court, which is punishable under the Constitution itself and, therefore, by necessary implication prohibited. If hi speech did prejudice the pending proceedings against the NAP and also con tained a veiled threat to this Court then it amounted to contempt and was not protected by Article

248. The Constitution itself declares by Article 190 the all executive and judicial authorities throughout Pakistan shall act in hid of the Supreme Court. The Prime Minister is, therefore, duty‑bound to give effect to the decisions of this Court. He had, therefore, no right to say that he would not accept responsibility for the decision of the Court if it goes against his decision. This amounted to deliberately flouting the Court's, authority or, at least, attempting to influence its decision. Our attention has, in this connection, also been drawn to a decision of the High Court of Australia in the case of The King v. Dunbabin: Ex parte Williams (53 C L R 434), to support the contention that what the Prime Minister has done, does amount to interference with the Courts of Justice and, therefore should be taken serious notice of as was done by the Australian High Court. In that case the Court interpreted the newspaper article complained of as being likely to give the impression:‑ "That the Court exercises its ingenuity in order to defeat legislation to which great public importance attaches and that the Federal Govern ment encounters in the Court an obstacle it might well seek to remove." The Australian High Court took the view that such imputations, how ever, well disguised, were likely to shake the confidence of litigants and the public in the decisions of the Court and weaken the spirit of obedience to the law. Therefor, the Court was bound to regard the publication as a serious contempt, which it must repress. We have given our anxious consideration to the arguments advanced by the learned counsel. We cannot, in the first place, agree with him that the nature of a proceeding for committal for contempt of Court partakes neces sarily of the nature of a criminal proceeding as this Court has already had occasion to consider this aspect of the matter and to take a contrary view in the case of Saadat Khialy v. State (P L D 1962 S C 457). It will be enough to point out that this Court has held that contempt of Court proceedings "were sui generis in nature partaking of some of the elements of both civil and criminal proceedings but really constituting neither, that there was no fixed formula for contempt proceedings and that technical accuracies were not required, nor were we bound by the provisions of the Code of Criminal Procedure or by the techni calities of ordinary criminal proceedings; but, nevertheless, being Courts of Justice, we would normally follow the fundamental rules for the ascertainment of the truth by giving the fullest opportunity to the person accused of defend ing himself and of putting forward his case with as much, if not, more fair ness than we would in an ordinary trial before us." As to the scope of Article 248, we are in agreement with the learned counsel for the petitioners that each and every act done or action taken by the Prime Minister is not necessarily covered by this Article. The Article necessarily refers to his official acts and not to acts done by him in his pri vate capacity. Only those acts are covered which he does in exercise of his powers as Prime Minister and in the performance of his functions as Prime g Minister. If he has any other capacity, then he cannot claim immunity for act done in that capacity if it has no relation whatsoever to the office of the Prime Minister. It is true that the immunity cannot possibly extend to any, thing done illegally, nor does the immunity protect the Prime Minister in res pect of any criminal proceeding. In order to avail of this immunity, it must be shown that whatever was done had some co‑relation to the official functions or duties or powers of the Prime Minister. We are also in agreement with the learned counsel for the petitioners that the immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law. It is, nevertheless, not possi ble to lay down any hard and fast rule as to what is or what is not within the powers and functions of a Minister or a Prime Minister but each case will have to be judged on its own facts and circumstances. Applying this principle in the present case, we are not in a position to say that any clear‑cut demarcation can be made between the various capaci ties of the Prime Minister when making the speech complained of. It cannot be said that this much was within the scope of the functions and powers of the Prime Minister and this was not, because, even the learned counsel for the petitioners found it difficult to say that the Prime Minister was not acting as Prime Minister when he was making a speech before the public explaining his policies or the conditions prevailing in the country. It is not uncommon these days for leaders of political parties, heading a Government as Prime Minister, to address public meetings for explaining or justifying the policies of his Government with regard to the state of affairs prevailing in the country, particularly, when public opinion is perturbed by drastic actions of the Government in power, as in the present case. For these reasons, we are of the opi nion that in the facts and circumstances of this case, the Prime Minister and the Minister for Interior and States were entitled to the immunity given by Article 248 of the Constitution. It must be made clear, however, that if the Prime Minister or the Minis ter was addressing a party meeting or a Convention of his party workers, it night well have been difficult to say that he was doing so in his capacity of (rime Minister or Minister or in the exercise of his powers or in the performance of his functions as such Prime Minister or Minister. There is yet another reason in this case for which we think that no action is called for. We have to remember that this power to commit for contempt is a power which has been vested in the superior Courts as an extraordinary power and has, therefore, to be exercised with great circumspection only where it is absolutely necessary in the public interest to do so. Comments in respect of pending proceedings are treated as contempts in order to keep the streams of justice pure and unsullied. Only those comments or remarks should, therefore, be considered to be punishable which really have a tendency to substantially prejudice the hearing of a case or to interfere with the course of justice. The question always is whether the Court before which the matter is pending, would be so influenced by the article or speech that its impartiality might be consciously or even unconsciously affected. In other words, is there any possibility of the speech or the article being calculated to prejudice either party in the pending cause? In the present case, having regard to its special feature that the decision to ban the party has already been taken by the Government and the Reference that is before this Court is only to confirm or not to confirm that decision, we do not think that a reiteration of the reasons for or the justification of the banning of the party in public can possibly give rise to any real or serious apprehension of prejudice, particularly, if it is remembered that:‑ "Judges", as observed by Rich, J., in the 7 Australian case of The King v. Dunbabin are not at all likely to be deterred from administering justice according to law by expressions which appear in the public press or elsewhere of displeasure at the consequences. Probably no one J doubts or questions that fact." Again as pointed out by Lord Russell, C. J., in the case of Regina v. Payne and another ((1896) 1 Q B 577) :‑ "No doubt the power which the Court possesses in such cases is a salu tary power, and it ought to be exercised in cases where there is a real contempt, but only where there are serious grounds for its exercise. Every libel on a person about to be tried is not necessarily a contempt of Court ; but the applicant must show that something has beer published which either is clearly intended, or at least is calculated, to prejudice a trial which is pending." In the same case, Wright, J. said that "in order to justify an application to the Court the publication complained of must be calculated really to inter fere with a fair trial, and, if this is not the case, the question does not arise whether the publication is so objectionable in its terms as to call for interfer ence of the Court." In the case of Gaskell v. Chambers ((1936) L R 2 K B 595), Goddard, J. observed:

"It is therefore a jurisdiction to be used with circumspection, and only to be invoked for grave and serious reasons and on real and substantial grounds. It certainly ought not to be invoked merely for the purpose of getting costs, which I do not suggest is the purpose in this case. It ought not to be invoked merely for the purpose of satisfying a feeling of vengeance against a person who may have done something which the opposite side in the litigation does not like. In this class of cases, where complaint is made of the circulation of a pleading or a comment on a pleading in a civil matter, I agree with my Lord (Hawart, C. J.) and du Parcq, J., that it is undesirable to lay down any general rules, because by doing so the Court might unduly fetter itself in exercising the jurisdiction in cases of this sort." We entirely agree with these observations and in the light thereof, we are of the view that the complaint made in this case is neither of such a serious nature nor is it likely to prejudice the proceedings in this case. The Govern ment has already banned the party and declared that the NAP is acting against the sovereignty and integrity of the country. The Prime Minister was merely justifying his action in the speech complained of in which incidentally he has said that if the Court decides otherwise it will not be his decision or of the public and the responsibility for the decision will be of the Court. He has said nothing new. Nor is this a threat to the Court. The responsibility for a decision made by the Court is always of the Court and the Court does not shirk this responsibility. It is its duty to decide in accordance with law and it does so, no matter who the party or what the cause. This Court is, in no way, deterred by the observations made in the speech complained of and, therefore, and having read the speech as a whole, this Court is of the view that it doe not have any serious tendencies of the kind complained of by the petitioners. The portions of the speeches complained of do not, in our view, raise any serious apprehension of either interference with the proceedings of the Court or of holding out any threat to this Court, we do not, therefore, think that this is a fit case in which any serious notice should be taken of a chance indiscrete expression in the speech. The Prime Minister did not intend to show any disrespect to this Court or to influence its decision in any way as he has himself stated publicly in a subsequent speech. We have no reason to doubt his statement. Indeed in the speech complained of itself he had clearly stated that he and his Government will respect the decision of the Court. The Minister for Interior and States has also said the same thing after justifying the Government's action. The other respondents merely reproduced, in the course of performance of their duties, the speech of the Prime Minister over the radio and the television. There is thus no need to issue any show‑cause notices to any of the respondents to plead to the allegations. These petitions are, accordingly, dis missed in limine. In doing so, we would like to make it clear that we do not wish to give the impression that this Court approves of the making of comments with regard to pending proceedings. It is a well‑established rule that when a matter is subjudice, all concerned should exercise restraint and avoid making any reference to such matters one way or the other and, therefore, as we have already observed in our first order in the Reference itself that this well established rule of not making comments regarding pending proceedings will, we hope, also be observed in by all concerned during the pendency of the Reference in this Court. K. A. H. Petition dismissed.