P L D 1973 Supreme Court 525 (PLP)

ANWARUL HAQ, J. ‑This judgment will dispose of Criminal Appeals Nos. 18 and 19 of 1973, as well as Criminal Petitions for Special Leave to Appeal bearing Nos. 18‑P and 19‑P of 1973, which have all arisen out of contempt proceedings taken by the Peshawar High Court in respect of an article captioned "Imagine", which appeared in the weekly newspaper 'Frontier Guardian' of the 14th of October 1972, published at Peshawar. By its judgment dated the 9th of March 1973, a Full Bench of the High Court, presided over by the learned Chief Justice, convicted Yousaf Lodhi (appellant in Criminal Appeal No. 19/73), as the ostensible author of the offending article, and also being the Editor, Printer and Publisher of the 'Frontier Guardian' and sentenced him 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 a period of one month. The Bench also directed that a copy of the judgment be sent to the Provincial Government for instituting proceedings against. Yousaf Lodhi for contravention of the provisions of sections 33 and 57 of the West Pakistan Press and Publications Ordinance, 1963, and for obtaining the declaration for his paper 'Frontier Guardian' on the basis of a false report as regards his academic qualifications as required by section 12 of the Ordinance. By the same judgment, the High Court adversely commented upon the conduct of the then Advocate‑General of the N. W. F. P., namely, Sardar Fakhre Alam, observing that he "felt distinctly embarrassed and his entire conduct exuded hesitancy and unwillingness" when he was called upon to examine in Court the Chief Secretary of the Province, namely, Mr. Ejaz Ahmad Naik. The judgment adds that: "It is indeed painful that in the performance of his duties, as the senior law officer of the Provincial Government, the learned and Advocate. General should have allowed his personal feelings to take the better of him and thereby add to the embarrass ment of vie Court." Criminal Appeal No. 18 of 1973 has been preferred by Mr. Fakhre Alam, who has since ceased to hold the office of Advocate‑General, for the expunction of these and other observations appearing against him in the judgment. In the body of the judgment the High Court also expressed the view that although Yousaf Lodhi was shown as the ostensible author of the article in question, yet in fact the article had been written "by a hidden hand and that Mr. Lodhi besides being wholly incapable to write any such thing had willingly offered his services in aid of a conspiracy" to scandalize the Chief Justice of the High Court. It was further observed that the impugned article was published in the 'Frontier Guardian' as a result of a conspiracy batched by the Chief Secretary, Mr. Ejaz Ahmad Naik, and the Director of Information, Government of N: W. F. P., namely, Mr. S. Iqtidar Ali Mazhar. Accordingly, notices were issued to them by the learned Chief Justice on the same date to show cause why they should not be proceeded against for contempt of Court. The two petitions for special leave to appeal have been filed by these gentlemen, praying that the notices issued to them by the High Court be quashed, and the adverse observations made against them be expunged from the judgment. In view of the fact that the whole case is under examination in connection with Criminal Appeal No. 18 and 19 of 1973, we grant leave to appeal in these two petitions as well, which shall now be treated as appeals and disposed of by this order. The article, giving rise to the contempt proceedings, was worded thus: - "It was midnight and I in my office was going through the 'Fables of Aesop' by Roger L' Estrange. I was in my office at that late hour because they had deprived me of my house last winter. If Sir Roger's rule, 'Live and let live is the rule of common justice' bad been in force I would not be reading in the office and a green‑eyed monster would not have come to me to give, according to him, a very interesting story about the Chief Secretary's house being taken over by the Chief Justice of the Peshawar High Court leaving the Chief Secretary high and dry and cold and shivering in the fast approaching winter. Who is not jealous of bachelors? When last week I received an invitation from the Peshawar University Women's Association, for a lecture on 'Education', by the bachelor Chief Secretary, I said to myself 'O Val E11 I wish you were single again: (To be honest these were borrowed words from the 19th Century masterpiece, 'I married a wife'). This much expression of jealousy should be healthy for those who have been married, but to engage the Speaker of a Provincial Assembly and to persuade him to go to the Chamber of the Chief Minister to brow beat the poor follow to get the house of a person vacated is something even a very jealous man like ma would hate to do. Mr. Aslam Khattak is a very influential person and an ace conversationalist too but in the meantime Mufti Mahmood has also established himself to be a statesman to the great grief of his adversaries and this is the only ray of hope which can, to some extent, accommodate Sir Roger's rule in this province. The intention of discussing this incident is not to please one or to annoy the other, but it is in persuasion to establish some traditions of accommodation, brotherhood and love and affection and concern for other. Unfortunately it is happening at the highest level which is supposed to be guiding the much condemned younger generation." This article was placed before a meeting of the Full Court, and it was decided that a notice should issue to the appellant Yousaf Lodhi to show cause why he should not be punished for contempt Accordingly, the notice was issued on the 23rd of October 1.972 and he was directed to appear before the Court on the 27th of October 1972. On that date Yousaf Lodhi submitted a written apology, which reads as under: "(1) That the humble author of the article, "Imagine" and Editor, Frontier Guardian, Peshawar has been served with a notice of Contempt of Court, calling upon him to show cause why action should not be taken against him for printing an article in its issue of the 14th October 1972 under the caption, "Imagine." (2) That the humble petitioner is grieved that the article has given cause of giving an impression which he never intended to convey, he in fact has the greatest regard and profoundest respect for the high office of the Chief Justice and the Judiciary. The humble petitioner considers his duty to offer his sincere, unreserved and unqualified apology for the article in question and prays that your Lordships will be graciously pleased to accept the same and would withdraw the notice of contempt issued to him In this behalf for which the petitioner, shall remain grateful On perusing the apology, the Full Bench recorded the following order :‑‑ "The learned counsel for Mr. Yousaf Lodhi has filed before us an unconditional written apology of his client in which he has expressed profound and sincere regrets and prays that he should be forgiven. While we appreciate this gesture, we feel that in view of the serious allegations made against the Chief Justice of this Court in the impugned Article, it would be in the public interest to proceed to record evidence in this case, for if any one of these allegations is proved against the Chief Justice he would perhaps be not entitled to hold this high office any longer. We would therefore keep the written apology of the respondent on record, to be considered at the appropriate stage of the proceedings, and direct that the statement of the respondent should be recorded and then farther evidence be called, if necessary." This order, as shown by subsequent events, proved to be the starting point of a protracted and acrimonious enquiry for the purpose of discovering the identity of the conspirators who had Instigated or persuaded Yousaf Lodhi to write or publish the impugned article for maligning the Chief Justice in the matter of the allotment of an official residence for his use. The appellant Yousaf Lodhi was examined and cross‑examined at great length, and his statement was followed by similarly lengthy examination of the Provincial Chief Secretary and the Provincial Director of Information. This enquiry continued late into December 1972, and resulted in the findings already mentioned in the preceding paragraphs. Besides, the High Court expressed the view that the allegations contained in the article were absolutely false, and that the article amounted to gross contempt. It refused to accept the unconditional apology, which Yousaf Lodhi had tendered at the very first hearing of the case, when he appeared before the Court on the 27th of October 1972. On behalf of Yousaf Lodhi, Mr. S. M. Zafar has contended that the impugned article did not constitute contempt of the learned Chief Justice or of the High Court over which he presides, as it did not tend to interfere with the administration of justice in any manner, nor did it amount to scandalisation of the Court within the meaning of Clause 2(b) of Article 206 of the Interim Constitution; that in any case, the unconditional apology tendered by the appellant at the earliest opportunity ought to have been accepted, and the High Court was in error in embarking upon an inquisition to discover the supposed conspirators behind the article; that the procedure adopted by the Court was one not permissible in summary proceedings for contempt, as the appellant was seriously prejudiced owing to want of notice regarding the wide‑ranging sweep of the enquiry opened by the High Court; that the conclusions reached by the High Court regarding the falsity of the allegations contained in the article are not sustainable on the basis of the evidence summoned by the Court itself; and, finally, that the result of the proceed ings appears to have been visibly affected by the bias generated in the mind of the learned Chief Justice on account of his personal involvement in the matter of the allotment of his official residence, and his view of the supposed part played therein by the Provincial Chief Secretary. Messrs Manzur Qadir and Saeed Akhter, appearing for the appellants, Ejaz Ahmad Naik, Fakhre Alam and S. Iqtidar Ali Mazhar, have supported Mr. S. M. Zafar on the question of the impropriety of the probe undertaken by the High Court for the purpose of discovering the identity of the supposed con spirators behind the offending article. According to them, once the ostensible author had appeared before the Court, had confessed his authorship and had tendered an unconditional apology, there should have been no question of not accepting the apology and undertaking a fishing enquiry to ropy in certain officials of the Provincial Government, and to castigate the then Advocate‑General who was obviously in a difficult position, and deserved sympathy and not censure of the Court. Messrs Sharifuddin Pirzada and Ghazanfar Ali Bokhari appearing for the High Court, as well as Mr. Burhanuddin, the new Advocate‑General of the N. W. F. P., appearing for the State, submit that the article in question clearly amounted to contempt, and that it was permissible for the High Court even in brevi manu proceedings to undertake an enquiry to discover the identity of the persons who might have engineered the publication of the same. However, Messrs Sharifudain Pirzada and Ghazanfar Ali Bokhari concede that if the apology submitted by Yousaf Lodhi is regarded as adequate and uncondi tional by this Court, then it can be accepted, in these appeal proceedings, as was cone In the case of A. K. M. Awal v. The State (P L D 1964 S C 564). In that event, they submit, the subsequent enquiry undertaken by the High Court after the 27th of October 1972, could be regarded as unnecessary. This view is not shared by Mr. Burhanuddin, who submits that the High Court has given good reasons for not regarding the apology as satisfactory and adequate and consequently for not accepting the same. After hearing the learned counsel for all the Interested parties at some length, we have come to the conclusion that this was indeed a case In which the apology submitted by the appellant Yousaf Lodhi at the very first hearing of the case, on the 27th of October 1972, should have been accepted, and the proceedings terminated by the discharge of the rule issued against him. We have already reproduced, in an earlier part of this judgment, the apology tendered by Yousaf Lodhi at the first hearing of the case. We have also referred to the order made on that date by the Full Bench of the High Court in which the apology was described as "an unconditional written apology expressing profound and sincere regrets", and praying that the contemners "should be forgiven". The learned Judges appreciated this gesture, but unfortunately, however, they took the view that the allegations made against the Chief Justice of the Court being serious, it would be in the public interest to proceed to record evidence in the case, for if the allegations were true the Chief Justice would not be entitled to hold his high office any longer. It seems to us that this was a wholly erroneous approach to the contents of the offending article. We notice that in the first place, the author of the article was making an attempt at being humorous and facetious, and therefore, some allowance bad to be made for literary licence. In the second place, the allegations, even taken at their face value, were not such as could be said to reflect on the suitability of the learned Chief Justice to hold his high office. After all, the article only sough to describe a dispute which bad arisen between the Chief Justice and the Chief Secretary of the Province regarding the allotment of a house‑a dispute which could hardly disqualify either of the contestants from occupying their respective offices. It is a matter of common knowledge that disputes of this nature do arise with regard to the allocation of official residences, especially where there is a shortage of such accommodation. The second statement in the article, to which objection has been taken by the High Court, is to the effect that, at the instance of the Chief Justice, the Speaker of the Provincial Assembly attempted to pressurise the thief Minister of the Province so as to get the house vacated from the Chief Secretary. We consider that the High Court obviously read much more into this statement than is conveyed by the words used by the author. Assuming that a dispute had arisen between the learned Chief Justice and the Chief Secretary of the Province over the allotment of a particular house, there would be nothing immoral, irregular or illegal in the Speaker of the Provincial Assembly trying to sort out matters with the Provincial Chief Minister, even though he may be doing so at the instance of the Chief Justice. We are accordingly firmly of the view that the High Court misdirected itself in taking these allegations in such a bad light as to consider that, if true, they would disentitle the Chief Justice from holding his office. In the circumstances, we consider that it was altogether unnecessary for the High Court to undertake the extensive enquiry, which followed the order of the 27th of October 1972. Yousaf Lodhi having admitted the authorship of the article and having tendered an unconditional apology which was appreciated by the High Court all that was necessary was to accept the apology and discharge the rule. While rejecting the apology, the High Court appears to have been influenced by the following factors: ‑ (a) That the apology slid not fulfil the criteria laid down by this Court in Yousaf Ali Khan v. State P L D 1970 S C 350; (b) That Yousaf Lodhi had subsequently withdrawn his apology during the course of the enquiry; and (c) That he or his paper indulged in further contemptuous acts by publishing certain articles casting reflections on the functioning of the High Court. We find that these reasons are not tenable in the facts and circumstances of the case. It is correct that not only fn the case of Yousaf All Khan but also in the earlier case of A. K M. Awal this Court had laid down certain criteria for determining whether an apology tendered by a contemners was worthy of acceptance or not. These factors were: (i) Whether the appellant appreciated that his act was within the mischief of contempt by interference with the administra tion of justice; (ii) Whether he regretted it; (iii) Whether his regret was sincere; (iv) Whether it was accompanied by expression of a resolution never to repeat the offence and (v) Whether he made humble submission to the authority of the Court. It is to be noted, however, that these factors or criteria are intended directly for the purpose of ascertaining whether the apology in question is unconditional and sincere, and shows a state of repentance on the part of the contemners. If the total effect of an apology on the mind of the Court is that it is unconditional and sincere, then it can hardly be rejected on the technical ground that it does not specifically and separately refer to the various factors mentioned by this Court in certain judgments. In Yousaf Ali Khan's case this Court expressed the view that an apology after every conceivable defence had been taken, adjudicated upon and repelled could hardly be considered to be genuine or received with sympathy. Such is not the case here. The High Court also seems to us to be in error in thinking that the apology was withdrawn by Yousaf Lodhi at any time. After tendering the apology on the 27th of October 1972, Yousaf Lodhi filed an application for adjournment of the case and also for permission to summon evidence with a view to establishing the truth of the allegations contained in the impugned article. The last request was clearly necessitated by the fact that the High Court itself had undertaken an enquiry into the truth or otherwise of these allegations. Whatever might be said about the reasons given by the appellant for seeking an adjourn ment, we do not see any indication in this application of with drawing the apology. Another application was then made by Yousaf Lodhi on 6‑12‑1972, which was, however, returned to him by the Registrar owing to certain technical defects in its presentation. The application was never resubmitted to the Court, but it appears that the learned Chief Justice was made aware of its contents, and, in paragraph 46 of his judgment, has described it as an application seeking to withdraw the apology. In the first place, this application does not form part of the record, and the High Court was, therefore, not justified in acting upon it in any manner. In the second place, from a copy placed before us by Mr. S. M. Zafar (which copy now forms part of the record as Exh. Supreme Court/1) we find that it was not intended to withdraw the apology earlier tendered by Yousaf Lodhi, but to bring out certain legal submissions which the appellant felt constrained to make in the light of the lengthy enquiry which had been held by the High Court after Yousaf Lodhi bad submitted his apology at the first hearing of f the case. We cannot lose sight of the fact that in spite of appreciating the apology the High Court had nevertheless proceeded with the enquiry, subjecting the appellant to lengthy and uncomfortable cross‑examination, and held an on the spot test of his literary ability in English journalism. He was, therefore, compelled to make certain legal submissions in his defence, but the application itself was withdrawn. It did not, therefore, amount to a withdrawal of the apology. Lastly, in refusing to accept the apology, the High Court has referred to certain articles which appeared in the 'Frontier Guardian subsequently, and in regard to which separate action was initiated. We were told at the Bar that one of these cases had already been disposed of on the basis of an apology submitted by the writer of the offending article, whereas the second case was still pending. These subsequent articles, having formed the subject‑matter of separate proceedings, can hardly be used for rejecting an apology tendered several months earlier. For the foregoing reasons we must hold that the apology tendered by Yousaf Lodhi at the earliest opportunity was, erroneously rejected by the High Court. We have already seen that at the time the apology was tendered, all the three learned Judges comprising the Full Bench were appreciative of the, gesture made by the appellant, and regarded the apology as being unconditional and embodying sincere and profound regrets. On our own examination of the contents of the apology, we entirely agree with this opinion. The contemners having thrown himself unconditionally at the mercy of the Court, the contempt stood purged. If technical compliance with the requirements specified by this Court in the two cases mentioned above was considered necessary by the High Court, the deficiency could easily have been pointed out to the contemners. Considering the attitude and the behaviour of the contemners on his first appearance before the Court, we have no doubt that he would have only been too willing to comply with any direction which the Court might have thought necessary to make in this behalf. However on the relevant date the High Court did not notice any deficiency whatsoever in the apology. It should, therefore, have been accepted and the rule discharged on the 27th of October 1972. It must be remembered that the object of contempt pro ceedings is not the vindication of the character or conduct of an individual Judge, but to protect the Court from attack and calumny, so as to keep the fount of justice pure and unsullied, and to maintain public confidence in the ability and power of the Courts to administer justice. This object clearly stood achieved once Yousaf Lodhi had submitted a sincere anal unconditional apology. On this view of the matter we would set aside the conviction and sentence recorded against the appellant Yousaf Lodhi and discharge the rule by accepting his apology, which is already on the record and amply meets the requirements of the case. In doing so, we consider it unnecessary to adjudicate whether the article amounts to contempt or not, for opinions may differ on this point. We must, however, place on record that no attempt was made by Mr. Zafar to justify the contents of the article. The enquiry undertaken by the High Court subsequent to the tendering of Yousaf Lodhi's apology on the 27th of October 1972 having been found to be unnecessary and uncalled for, we have no altercative but to sot aside all the proceedings taken by the High Court after that date as non eat. As a necessary corollary the various observations made by the High Court regarding the conduct of the then Advocate‑General (Ar. Fakhre Alam), the then Provincial Chief Secretary (Mr. Ejaz Ahmad Naik), and the Provincial Director of Information (Mr. S. Iqtidar Ali Mazhar), would automatically become inoperative and irrelevant. On this view of the matter, it is no longer necessary for us to examine the question of the expunction of these remarks from the body of the judgment. As a further consequence, we would recall the directions/re commendations made by the High Court regarding the prosecution of Yousaf Lodhi under sections 33 and 57 of the West Pakistan Press and Publications Ordinance, 1963 read with section 12 thereof in the matter of obtaining declaration for the `Frontier Guardian' etc. Regarding the notices issued to Mr. Ejaz Ahmad Naik and Mr. S lqtidar Ali Mazhar, the position is that ordinarily, as held in Sir Edward Snelson v. Judges of the High Court of West Pakistan, Lahore, C. M. P. No. P‑1/60, decided one 10‑11‑60, Rashid Ahmad v. Abdul Majid (1969 S C M R 512) and M. H. Khondkar v. State (1971 S C M R 743), this Court does not interfere, appeal, where only a contempt notice has been Issued by High Court. However, in the peculiar circumstances of Ix the present case, we find that, as a result of the proceedings taken by the High Court after the 27th October 1972, these two appellants virtually stand convicted, and the issuance s of notices is merely in the nature of a formality. Accordingly, we would. for the detailed reasons given above, set aside the notices issued to these two gentlemen. As the appeals are being disposed of on the basis of the apology tendered by the contemners, and the consequences flowing therefrom, it is not necessary for us to examine the other conten tions raised on behalf of the appellants. Mr. S. M. Zafar, the learned counsel for Yousaf Lodhi, also complained about certain remarks made by the High Court regarding his conduct of the case. For the reasons just stated these observations also lose their efficacy and it is not necessary to say anything more on this account. The result is that all the four appeals are accepted in the manner indicated in the preceding paragraphs. On the conclusion of the hearing of these appeals, a request was made by all the learned counsel for the appellants that it would be in the public interest if the detailed judgment of the High Court, containing, as it does, a narration of certain unpleasant facts which marred the relations between the Judiciary and the Executive in the North‑West Frontier Province, is not Included in the bound volume of the P L D for the year 1973, especially in view of the fact that In the present proceed ings before us no attempt has been made to justify the contents of the impugned article. We consider the request to be reasonable and calculated to promote harmonious relations, between the Judiciary and the Executive in the North‑West Frontier Province. We accordingly direct that the High Court judgment under appeal shall not be included in the bound volume of any other law journal. S.A.H. Appeals accepted.