P L D 1966 (W (PLP)

2. Briefly, the facts of the case for the disposal of this petition are that Qaisar Mawaz and another are facing trial under sections 366 and 376 of the Pakistan Penal Code in the Court of Mr. Rashid Ahmad, Magistrate, Ist Class, Lahore. On the 2nd of February 1966, Mr. M. Anwar, learned Advocate for Rozemary Daud Ilyas, the prosecutrix in the case, made an application under section 352, Criminal Procedure Code, wherein it was prayed that having regard to the nature of the offence and the respectability of the applicant, the trial might be held in camera. On that application, the learned trial Magistrate passed the following order: "No public will be allowed. The learned counsel for the complainant has agreed that the members of the bar, pressmen and relatives of the party may he allowed. The pressmen have been instructed that no photograph will be taken and they would only publish the material which the Court would allow." On the 25th of February 1966, another application was made under section 22, subsection (2), of West Pakistan Press and Publication Ordinance, 1963 (XXX of 1963) by Mr. G. M. Mirza, Advocate, on behalf of the prosecutrix, wherein it was prayed that in view of certain baseless and scandulous questions put in the cross‑examination, the publication of the proceedings be not released to the press. The learned Magistrate passed the following order :‑ "Mr. G. M. Mirza, Advocate, has presented me an application on behalf of the complainant, asking me to prohibit the material which is being recorded in the proceedings for publication, and Mian Muhammad Arif, P. P., representing the State, has also supported the contention. There had been a controversy on the subject, but as far as I understand that I had already passed an order, the material which is to be published, the Court will scrutinize it and the material which is unnecessary would be deleted keeping in view that nothing should be done which could prejudice any party or would unnecessarily bring any apprehension in the minds of the parties that the material released would in any way be a point of their prestige and every care thus would be taken in releasing the material to the press. My previous order is very clear on the point now I have perused dated 3‑2‑

66. The material released to the press is properly scrutinized and then given. The application is, therefore, disposed of with this order."

3. On the same day, another petition was presented to the trial Court by the petitioners who stated that they were the members of the District Bar Association and were desirous to hear the proceeding, being held in case State v. Qaisar Mawaz under section 376 of the Pakistan Penal Code and were interested to watch the proceedings as eminent lawyers had been engaged and important questions of law and fact were likely to come up for discussion. The learned Magistrate did not accede to their request and observed that there was every apprehension of something untoward happening during the trial of the case and that the petitioners were not a party to the proceedings.

4. Aggrieved with the aforesaid order of the learned Magistrate, the petitioners, as mentioned in the beginning, have come up in revision to this Court and have challenged it on the grounds :‑ (i) that the place in which any Criminal Court is held for the purpose of inquiring into, or trying, any offence, is an open Court; (ii) that there was no order under section 352, Cr. P. Code, debarring the public in general or any particular person from entering the Court‑room during the proceedings of the case at any stage prior to the time when the petitioners wanted their admission to the Court‑room and, as such, the prevention of the petitioners from entering the Court‑room of the Magistrate is illegal; (iii) that on an application being made, the trial Magistrate cured the illegality by passing the impugned order, which on the face of it is defamatory in nature and derogatory to the members of the Bar ; and (iv) that the petitioners, being the members of the Bar, do not fall in the category of public in general and are entitled as a matter of right to watch the proceedings in view of the provisions contained in section 22 (2) of the Legal Practitioners and Bar Councils Act, 1965, and section 8 of the Legal Practitioners Act, 1879.

5. In order to appreciate the contentions raised by the learned counsel for the petitioners, I sent for the record of the case. A perusal of the same reveals that the learned Magistrate had passed an order on the 3rd of February 1966 on the application of the prosecutrix made under section 352, Cr. P. Code, debarring the public in general but giving no indication as to whether or not he would hold the trial in camera, presumably on the ground that the counsel for the complainant conceded that the members of the Bar, pressmen and relatives of the parties to the proceedings might be allowed to witness the proceedings. Therefore, the contention of the learned counsel for the petitioners that there is no order under section 352, Criminal Procedure Code by the learned Magistrate is not well founded and is devoid of all force. The order of the learned Magistrate prohibiting the public in general from witnessing the proceedings before there being on the file, the Court was justified in refusing to allow any person to enter the Court‑room without its permission. It is true that the learned Magistrate, by his order dated the 3rd of February 1966, did not order the proceedings to be held in camera.

6. The next two questions that I am called upon to decide are (1) whether any Court, particularly a Criminal Court, trying a criminal case is an open Court or not, and (2) whether or not an advocate is entitled as a matter of right to witness proceedings of a case in such Court or any Court of law in view of the provisions of section 22 of the Legal Practitioners and Bar Councils Act, 1965, and section 8 of the Legal Practitioners Act, 1879 (XVIII of 1879). No doubt under section 22 of the Legal Practitioners and Bar Councils Act, 1965, an advocate has a right to appear, plead and act in any Court or tribunal in Pakistan provided he has been briefed in a case on behalf of a party to the proceedings in any Court of law, but he cannot, as a matter of right, make his appearance in a Court to watch a proceeding in which he has not been duly instructed or engaged by any of the parties to that proceeding. Therefore, an order passed under section 352, Cr. P. Code either to hold the proceedings in camera or debarring the public in general from witnessing a proceeding in a Court shall equally apply to the members of the legal profession. To me it appears that the members of the Bar do not have a different status so far as the matter in dispute is concerned. They are officers of the Court only when they are appearing, acting and pleading before a Court of law.

7. There is no doubt that generally the proceedings of Courts should, under the law of the land and under section 352, Cr. P. Code, be held in an open and public place to which the public, generally, may have access, so far as the place can conveniently contain them, provided of course that the Magistrate or presiding Judge may, if he thinks fit, order, at any stage of an enquiry or trial in a particular case, that the public generally, or any particular person shall not have access to, or be, or remain, in, the room used by the Court. Learned counsel for the petitioners cited at the bar Cora Lillian Mchperson v. Oran Leo Mchperson (161 1 C 260) wherein their Lordships of the Privy Council observed: "Except in the case of certain strictly defined exceptions, such as applications properly made in chambers and infant cases, every Court of Justice must be open to every subject of the King. Publicity is the authentic hall‑mark of judicial as distinct from administrative procedure. The actual presence of the public is not necessary but the Court must be open to any who may present themselves for admission." But this ruling will not strictly apply to Criminal Courts in Pakistan which, so far as the matter in dispute is concerned, are governed by section 352, Criminal Procedure Code, which empowers a Magistrate to exclude certain persons in certain circumstances for valid reasons appealing to the trial Magistrate. But it is an established rule of law that a criminal trial should be held in a public place and that the public in general should have access to it. This general rule is prevalent in almost all the civilized countries of the world. But, in view of the peculiar or extra ordinary circumstances of a case, there may be need to relax the rigidity of the aforesaid established rule of law. That is why section 352, Cr. P. Code makes a provision for certain contingencies. Lack of space in the Court room may justify a Magistrate in admitting only a limited members of the public. Further, when indecent and obscene matters have to be canvassed during the trial, the Magistrate may well have a discretion to exclude certain section of the community. In the same way, the Court may, for cogent reasons, exclude those unconnected to the proceedings of the case to avoid apprehensions of breach of the peace or for any other emergant reasons. A Magistrate or the Presiding Judge is the master of the situation and is the person responsible to maintain the decorum of the Court and to regulate the proceedings. He has the power even to hold the proceedings in a camera. In view of my above observations, I am of opinion that the Court has the inherent jurisdiction to exclude all those who are not connected with the proceedings of the case and can hold proceedings in camera for cogent reasons after passing an order under section 352, Criminal Procedure Code. I may also with advantage refer to the following decisions on the subject.

8. In The King v. Governor of Lewes Prison (1917 (2) K B 254), their Lordships held: "The words `open Court' mean a Court to which the public have a right to be admitted, but they do not include a Court where the public are excluded although the accused and his representatives are allowed to be present . . . . . . There is inherent jurisdiction in every Court, including a field general court‑martial, to exclude the public from a trial if it is necessary for the administration of justice." In Scott and another v. Scott (1913 AC 417) Earl Loreburn observed : "In cases where it is shown that the administration of justice would be rendered impractic able by the presence of the public, as for example where a party would be reasonably deterred by publicity from seeking relief at the hands of the Court, an order for hearing a matrimonial suit in camera may be lawfully made. Subject to the above limitation rules may be made under the Matrimonial Cases Act, 1857, to regulate the hearing of causes in camera." In Halsbury's Laws of England, Volume IX, 1909 Edition, page 9, at the end of paragraph I of Part I (Introductory), it has been reported that as a general principle, all Courts must be open to the public, though the Judge may for good and sufficient reason order that the public, or a certain section of the public, shall be temporarily excluded. In W. E. Gardner v. U. Kha (A I R 1936 Rang. 471), Dunkley J., observed: "Where a Magistrate conducts a trial in camera in the exercise of his own discretion and under proviso to section 352, Criminal P. C., and no objection is raised to such procedure, the proceeding of the Magistrate cannot be upset except on the ground that the complainant is prejudiced by the case being not tried in open Court." In the present case, there is, apparently, nothing on the record to indicate that any objection was raised by any of the parties to the proceedings to the procedure adopted by the learned trial Magistrate. On the other hand, Rozemary Daud Ilyas, the prosecutrix, had the intention from the very beginning, as it appears from the record, and was interested in the proceedings being held in camera. The learned Magistrate, in the circumstances of the case, was justified in acceding to her request, as the Courts of law are charged with the parental and administrative duties to protect, in proper cases, the litigants appearing before them from unnecessary embarrassment. The upshot of my above discussion is that every Court of law is open to every subject of the State but subject to certain limitations and exceptions to be determined by the Court hearing the case.

9. Before parting with this judgment I am constrained to say that the learned Magistrate did not apply his mind while disposing of the application made to him under section 352, Cr. P. Code. The circumstances of the case were such that he should have ordered the proceedings to be held in camera as prayed by the prosecutrix. But I would like to point out to the Magistrate that the members of the Bar are the officers of the Court and as such are bound to uphold and maintain the dignity and decorum of the Court. Therefore, if the learned Magistrate, who, of course, has excluded the public in general by his order, but is not holding the proceedings in camera if deems fit, may follow by permit a few members of the Bar who could be reasonably accommodated in a Court‑room, but this observation should not be understood to mean that this Court is issuing a directive that the members of the Bar will be permitted to witness the proceedings in the said case. This is up to the Magistrate to consider all the circumstances in which he is holding the trial and to permit or refuse anyone to witness the proceedings of the case or may, in the peculiar circumstances of the case, order the proceedings to be held in camera.

10. In view of the above, the order of the learned Magistrate does not appear to be open to any exception. Consequently, no interference is called for and the revision petition fails and is dismissed. K. B. A. Petition dismissed.