P L D 1953 Lahore 137 (PLP)

3. Criminal Original No. 20 oft

952. The Crown versus Abdus Sattar Khan Niazi. M. L. A., Punjab.

4. Criminal Original No. 23 of 1952. The Crown versus Malik Nasrullah Khan Aziz, Editor, Printer and Publisher of Daily `Tasneem'.

5. Criminal Original No. 24 of 1952. The Crown versus Aziz Beg, Editor, Printer and Publisher of Weekly `Star'. As the facts in the above mentioned five petitions are to some extent connected all of them will be disposed of by this order. The expression `contempt of Court' has not been defined in any statute but it appears to me that the definition by Lord Russell in The Queen v. Gray (1900 2 Q B 36) is the most apt. The learned Lord said:‑‑ Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court." This definition was acted upon by the Privy Council in Andre Paul Terence Ambard v. The Attorney‑General of Trinidad and Tobago (A I R 1936 P C 141). An apt definition is given by Oswald also when he says, "To speak generally, contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation. If, therefore, anything is done to prejudice a party to a case contempt of Court will be committed. The offence will also be committed even if a case is not pending but it is known that proceedings in Court were imminent at the time when the act which was likely to prejudice a party was done. The question to consider is whether or not the cases before me come within tare four corners of the above‑mentioned limits. I will deal first with Criminal Original Nos. 18 of 1952; 23 of 1952 and 24 of 1952, which relate to matters published in newspapers. In Criminal Original No. 18 of 19x2, the Punjab Government has objected to two articles published in the Nawa‑i‑Waqat, one in its issue dated the 18th July 1952, and the other in its issue dated the 21st July 1952. In the issue of the 18th July 1952, it was said that the habeas corpus petition put in by Makhan in this Court (Criminal Miscellaneous No. 512 of 1952) alleged inter alia that Mst. Khanam wife of Sultan and her son Ahmad were stripped naked and the latter was on the, point of bayonet forced to put his sexual organ in the mouth of his mother. This allegation was not mace in Criminal Miscellaneous No. 512 of 1952, and the contention of the learned Assistant Advocate‑General is that as contents or the record of this Court were misrepresented, the respondents in Criminal Original No. 18 of 1952, had been guilty of con tempt of Court. There is no doubt that misrepresentation of proceedings in Court amounts to contempt of Court nor is there any doubt that the proceedings were misrepresented in the issue of Daily Nawa‑i‑Waqat dated the 18th July 1952 It is, however, contended by Khawaja Nazir Ahmad for the respondents that they acted in good faith on information received, which information they believed to the true, and had; therefore, not intentionally misrepresented the habeas corpus petition which had been put in. Amongst the documents put in by the respondents to prove their innocence are an application sent by Makhan Naul on behalf of the residents of Chak No. 232 in .which the allegation objected to by the Crown is mentioned. The Minister for Food, Punjab, dealt with the application on the 16th July 1952, and ordered an enquiry into the matter on the spot by the Commissioner, Multan Division. The learned Assistant Advocate‑General after enquiries admitted before me that the order sending the application to the Commissioner is in the handwriting of Hon'ble Sufi Abdul Hamid Khan, h6 mister for Food, Punjab. The other document is a letter by Nawab Khan to the Editor, Nawa‑i‑Waqat, at the bottom of a document which purports to be a copy of an affidavit put to by Makhan in this Court in support of his habeas 'corpus application. In this document also the allegation objected to be the Crown finds place in paragraph

6. In the affidavit sworn before the Commissioner for Oaths of this Court on the 20th October 1952, Nawab Khan has stated that he and Makhan went to the office of the Nawa‑i‑Waqat on the 16th July 1952, and gave to the Editor the document which purports to be a copy of the affidavit put in by Makhan in support of his habeas corpus petition in this Court. The evidence produced by the respondents establishes that the objectionable matter in the issue of the Nawa-i-Waqat dated the 18th July 1952 was published in the paper under a mistake which cannot be said to be anything but boreal fide. It was contended by the learned Assistant Advocate- General that even if it be held that the respondents in Criminal Original No. 18 of 1952, were acting in good faith and under a bona fide mistake when they published the objected item in the issue of Nawa‑i‑Waqat dated the 18th July 1952, they were still liable for contempt of Court, because publishing pleadings of a party was by itself contempt of Court. In this connection my attention was drawn to Bennet Coleman & Co. Ltd. v. G. C. Monga and S. Bakhshish Singh, Editor `Khaisa' (I L R 1937 18 Lah. 34), in which case a Division Bench of this Court punished a plaintiff in a case and an editor of a newspaper for publishing the plaint. I do not think the authority relied upon has any application to the facts of the present case. The learned Judges in the reported case held the publication to be contempt of Court because they came to the conclusion that the publication was intended to scandalize and defame the defendant in the case as is evident from the following passage in the judgment which appears at page 410 of the report;‑ "There can be no doubt that the plaint, which was pub lishes in the present case, reflects seriously on the conduct of the applicants. We have no doubt that a serious contempt has been committed, a contempt which has been described as of a scandalous nature, and a form of contempt which, if allowed to flourish, might become a serious danger " * *." It is no doubt incumbent upon Courts of Justice to preserves their proceedings from being misrepresented and not to allow a party to prejudice the minds of the public against persons concerned as parties in a cause before the cause is finally beard. But in the present cause the police, against whom the public may be said to have been prejudiced by the publication of the article, was not a party before the Court and on that ground also I do not think that the mere publication would amount to contempt of Court. In these circumstances I do not think any action is called for with regard to the article which appeared in the issue of the Nawa‑i‑Waqat dated the 18th July 1952. The article which was published in the issue of the Nawa i‑Waqat dated the 21st July 1952, was headed. "The deserted graveyard like appearance of Chak No. 232 of District Jhang is a shameful blot on the Punjab. An appal to the Chief Minister of the Punjab in the name of humanity". In the article it is mentioned that the editor himself went to Chak No. 232 and there saw that the village was almost entirely deserted. It was added that a number of persons told the editor that the police had committed atrocities detailed in the article. In the end the editor appealed to the Chief Minister of the Punjab, Mian Mumtaz Muhammad Khan Daultana, to look into the matter and see that the residents of the Chak, who had run away out of fear of the police, return to their homes at an early date. When asked by me to explain how the article in the issue of the Nawa‑i‑Waqat dated the 21st July 1952 amounted to contempt of Court, the learned Assistant Advocate‑General urged that it was likely to interfere with the trial of the persons arrested for killing Nur Muhammad A. S. I. When I pointed out to him that no opinion had been expressed about the assault on Nur Muhammad A. S. I., the learned Assistant Advocate‑General said that the intention of writing this article was to mobilize public opinion in favour of the accused. He elaborated his argument by saying that if the witnesses, who have to appear in the case relating to the death of the A. S. I., feel that after the killing of the A. S. I., the police had resorted to at rocities on the villagers they would not like to support the prosecution case relating to the death of the A. S. I. I confess that I am not able to follow this argument. If this argument were accepted any one who said anything about any matter which may have anything to do with a pending case would be guilty of contempt of Court, though what was said could have and was intended to have any effect on the matter pending in Court. While, therefore, I agree with the learned counsel for the Crown that if the writing was intended to interfere with the course of justice or had that result, it would amount to contempt of Court. I do not agree with him that the article in the Nawa‑i‑Waqat dated the 21st July 1952, could have any effect on the case relating to the death of Nur Muhammad A. S. I. It was not alleged, much less proved, that any case brought by any of the residents of Chak No. 232 with regard to the alleged atrocities was pending or imminent at the time of the publication of the article in the Nawa‑i‑Waqat and 1 would not, therefore, consider if the article had a tendency to prejudice any of the parties to a pending or impending litigation. The result, therefore, is that I dismiss Criminal Original No. 18 of 1952. I will now deal with Criminal Original No. 23 of 1952. 'The writing objected to in this case appeared in the Daily Tasneem on the Ist August 1952. It is said in this article that it was being wrongly mentioned that the articles which had the police in Chak No. 232 amounted to contempt of Court. The contention of the learned "assistant Advocate‑General was that as the case against the editor and the printer of the Daily Nawa‑i‑Waqat (Criminal Original No. of 19521 was pending in this Court on the Ist August 1952, the expression of the opinion, that articles in newspapers about the alleged atrocities by the police in Chak No. 232 did not amount to contempt of Court, was itself contempt of Court. The defence of the editor is that at the time of writing the editorial he did not know that any action had been taken against the Nawa‑i -Waqat. This absence of knowledge is sworn to in an affidavit dated the 13th December 1952, put in by Malik Nasrullah Khan Aziz, editor of the Daily Tasneem. There is no evidence on behalf of the petitioner that the respondent knew anything about the case against Nawa‑i-Waqat. In this connection may refer to the last few lines of the editorial itself which say that if Government is desirous of bringing some papers before the Court the action will be welcomed because by that means matters which were being described by Government as unfounded will come before the Court. It appears to me from the above that the editor did not know that a petition against the Nawa‑i‑Waqat had already been presented by the Government in this Court. In these circum stances I do not think that the intention of the editor was to say anything about a matter which was already pending in a Court and I, therefore, dismiss Cri. Original No. 23 of 1952. In Criminal Original No. 24 of 1952 it is prayed by Government that action be taken against the editor of the `Star' for an article published on the first page of its issue dated the 26th July 1952 and headed: "A matter of common shame. A tale of terror told." In this editorial it is said that the police had meted out atrocious treatment to the residents of Chak No.

232. The tales told to the editor were described as too horrible to hear and what he saw as too terrible a sight to see. It was added that what really happened in Chak No. 232 was too heinous an event to relate and the Chak was lying almost entirely deserted. In this article Mian Mumtaz Muhammad Khan Daultana, Chief Minister of the Punjab, was requested to proceed to Chak No. 232 to see things for himself and Khan Qurban Ali Khan, Inspector‑General of Police Punjab, was asked to ponder if his subordinates were carrying out his wishes or their own. At the end of the article it was stated that the petty minded puny police officers should not try to become Molochs. Going through the article I find that at some places there are attacks on the police but there was no reference to any Court or any case pending in Court, and I asked the learned Assistant Advocate‑General to explain how the article amounted to contempt of Court. His reply was that as the writing was likely to affect the prosecution witnesses intended to be produced in the case relating to the death of Nur Muhammad A. S. I., the article should be held to be intended to interfere with the course of justice and, there fore, to amount to contempt of Court. This argument is the same which was addressed in Criminal Original No. 18 of 1952, dealt with above, and as it has in my opinion for the reasons already given, no force, Criminal Original No. 24 of 1952 is hereby dismissed. In Criminal Original No. 17 of 1952, Mehr Falak Sher, Pleader, Jhang, alleges that while acting as a defence counsel for the persons arrested in connection with the death of Nur Muhammad A. S. I., he was threatened by the respondent, Abdur Rashid, A. S. I., with dire consequences if he (petitioner) persisted in defending the accused persons in the case. It was said that the respondent brought some persons in custody to the Court of Capt. Muhabbat Khan, Magistrate 1st Class, Jhang and when the petitioner appeared m the Court for those persons the respondent asked the petitioner to talk to him outside the Court room. The petitioner said that whatever the respondent wanted to say he could say in the Court room, but the respondent said that he will talk to him outside and when they went outside the respondent said to the petitioner brat he should not defend the accused persons as by doing so he was opposing the entire police force and if he persisted he will meet with dire consequences. The respondent in the written reply that he put in denied having held out the threat. His case was that the petitioner was not engaged for the persons arrested for killing Nur Muhammad, A. S. I. and that all that had happened was that the (respondent) had refused to allow the petitioner to talk to the persons who were in police custody. As the facts were in dispute the parties were given opportunity to produce evidence. In support of the petition appeared Nur Muhammad, retired Extra Assistant Recruiting Officer, Jhang (P. W. 1), Muhammad Khan Lambardar, Chak No. 265 (P. W. 2), Mr. Safdar Hussain, Pleader "Jhang (P. W. 3), Mr. Akhlaq Hassan, Advocate, Jhang (P. W. 4), Muhammad Bakhsh, Secretary, District Soldiers Board, Jhang (P. W. 5), and Mehr Falak Sher petitioner himself (P. W. 6). Nur Muhammad (P. W. = J stated that on the 17th July 1952, he in company of Muhammad Khan (P. W. 2) had gone to the office of the District Soldiers Board, when they saw that the petitioner and the respondent were talking to each other angrily in the verandah of the Court room of Capt. Muhabbat Khan. The respondent was telling the petitioner that the consequences of the petitioner's accept ing a brief on behalf of the persons charged with the murder of Nur Muhammad A. S. I. would not be good for him and that he will come to the same end as Shammi of Lyallpur had come. Muhammad Khan (P. W. 2) corroborated Nur Muhammad (P. W. 1) but the statements of these two witnesses differed in one respect, namely, that while P. W. 1 stated that the respondent threatened the petitioner with the fate which had befallen Shammi of Layallpur. P. W.2 stated that the respondent had said that making of money should not be the only consideration for the petitioner who was a Pleader as even prostitutes exercised some discrimination in the choice of their customers. Mr. Safdar Hussain, (P. W. 3) who is the Joint Secretary of the Jhang Bar Association, stated that on the 17th July 1952, at about 11 a. m., he had heard the petitioner telling Mr. Akhlaq Hassan that the respondent told him that he had done wrong in appearing for the accused in the Chak No. 232 case and that he would be dealt with for this Mr. Akhlaq Hassan (P. W. 4) stated that on the 17th July 1952, the petitioner came to the Bar Association and told him that the respondent had fallen out with him and had threatened him with dire consequences if he continued to appear in the Chak No. 232 case. Muhammad Bakhsh (P. W. 5) stated that on the 17th July 1952 in the District Courts compound, he had heard an altercation between the petitioner and the respondent in the course of which the respondent told the petitioner that the petitioner had accepted a case against the police while other lawyers in the district had refused it, adding that even a prostitute picked and chose her clients and that the petitioner will suffer the same fate as Shammi of Lyallpur did. The witness explained that by Shammi was meant one Shamas‑ul‑Haq, a leader of Lyallpur, who disappeared and was believed to have been murdered. Mehr Falak Sher (P. W. 6) gave details of the incident and of the conversation between himself and the respondent. He was cross‑examined at great length for the purpose of showing that he was riot of good character and that he had made a mis‑statement, in the application he made to this Court to obtain a license to practise as a pleader. In that application the petitioner had stated that he had never been engaged in or dismissed from Government service while in fact he had been an Assistant Sub‑Inspector in the Police. The respondent produced Allah Bakhsh, Reader to the Court of the A. D. M., Jhang (l). W. 1) (Capt. Muhabbat Khan, Magistrate 1st Class, Jhang (D. W. 2), Ghulam Haider, M. L. A., (D. W. 3), Mahmood Shah (D. W. 4) and himself appeared as (D. W. 5). Mahmood Shah (D. W. 4) is a drawing master in tree M. B. High School, .4 yang and was produced mainly to prove a plan which is Exh: D. E. on the record. Allah Bakhsh (D. W, 1) produced Exh. D. A., the remand form in the case Crown v. Raja, the case 9n which the petitioner said that he was acting as a counsel on the 17th July 1952, when the incident occurred. The remand form does not show that the petitioner or any other counsel appeared for the accused persons when the Police produced them for obtaining a remand. D. N. 1, however, stated that generally when accused persons are produced for remand, even if they are accompanied by a lawyer the name of the lawyer is not entered in the remand order. Capt. Muhabbat Khan (D. W. 2) stated that on the 177th July 1952, when he passed the remand order in Exh. D. A., .no counsel appeared for the accused persons and that neither on the 17th July, nor on any subsequent date did Mehr Falak Sher complain to him that the respondent had threatened him. This witness was cross‑examined at great length to show that he had been a party to some dubious transaction. Ghulam Haider, M. L. A. (D. W. 3) deposed that he was sitting at a shop in the District Courts' compound when Abdur Rashid A. S. I. passed that way. Just then the petitioner came there and wanted ;o talk to the persons in custody of the respondent, who refused to allow the petitioner to speak to them unless he had a written permission at which the petitioner went away saying that he will teach the respondent a lesson for the refusal. The respondent as D. W. 5 denied that he had held out the threat mentioned by the petitioner. He explained that because he had refused to allow the petitioner to interview the persons in custody, the petitioner had brought a false case against him. A copy of an entry dated the 17th July 1952, in was made on the date on which it purports to have been made and I cannot, therefore, accept the entry in the diary as correct. It is admitted by the respondent and his counsel that the petitioner has no apparent motive to falsely accuse the respondent. It is, however, urged that because the respondent had refused to allow the petitioner to interview persons in custody the petitioner had made the false allegations on which the petition is based. Attention was invited to Exh. D. A. and the statement of Capt. Muhabbat Khan to show that the petitioner was never engaged as a counsel in the case relating to the death of Nur Muhammad A. S. I. The positive evidence produced by the petitioner to the effect that he was engaged as a counsel for persons accused of killing Nur Muhammad A. S. I. and had been threatened by the respondent is, in my opinion, more weighty than the evidence of the witnesses produced by the respondent. It is true that Exh. D. A. does not show that the petitioner appeared in Court of Capt. Muhabbat Khan on the 17th July 1952, but that may be due to the practice mentioned by Allah Bakhsh (D. W. 1). It is admitted by the respondent that he and the petitioner had a talk with each other on the 17th July 1952 in the District Court's compound but he says that the petitioner had twisted the incident. It is improbable that simply because the respondent had refused the petitioner to talk to the persons in custody, the petitioner would falsely allege that he had been threatened with dire consequences. If the incident mentioned by the petitioner had not happened it is difficult to believe that he would go to the Bar Association Room and complain to Mr. Akhlaq Hassan as he is proved to have done not only from the statement of Mr. Akhlaq Hassan (P. W. 4) but also from that of Mr. Safdar Hussain (P.W.3). I would, therefore, hold that the respondent had threat ened the petitioner with dire consequences if he persisted in defending the persons accused of killing Nur Muhammad A. S. I. The question that arises is if by holding out the threat to the petitioner the respondent had been guilty of contempt of Court. The definition of contempt of Court which I have attempted in the beginning of this judgment would, in my opinion cover the case of the petitioner as by holding out the threat to the petitioner the respondent did a thing which was calculatedly to obstruct and interfere with the due course of justice. In the view I take I am supported by a number of authorities of which I need only quote Anantalal Singah v. Alfred Henry Watson (I L R 58 Cal. 884), Superintendent and Remembrancer of Legal Afairs Bihar v. Murali Manohar Prasad (A I R 1941 Pat. 184) and Nand Lall hhalla. v. Malik Kishori Lal (48 Cr. L J 757). In the Calcutta case all that was said about a legal practitioner was. "He threw up his practice at the bar to devote himself wholly to Congress activities and he is now defending prisoners charged with complicity in a terrorist outrage. Is that Congress work or is it not?" It was held that there was distinctly discernible in the article a tendency to interfere with the due course of Justice and the comment amounted to contempt of Court. In A I R 1941 Pat. 185, it was held that a person publish ing an article demanding that a counsel should not undertake the defence of an accused person committed contempt of Court In the Lahore case it was held by a Division Bench that holding out threat to a counsel in the performance of his professional duty amounted to contempt of Court, though on merits it was held that the complaint was not proved. A full bench of this Court has held in Muhammad Shafi v. Qadir Bakhsh (1949 P L R 437) that intimidating counsel so as to deter him from doing his professional duties amounts to contempt of Court. I would, therefore, hold that the respondent was guilty of contempt of Court. The question of sentence presents some difficulty. I consider it to be a contempt of a very serious nature and would not have considered a sentence of a term of imprisonment to be by any means severe but I cannot overlook that the incident took place as long ago as the 17th July 1952 and the decision of the case has been delayed due to no fault of the respondent. In these circumstances I have come to the conclusion that a sentence of simple imprisonment till the rising of the Court and a fine of Rs. 200, in default of payment of which the respondent should undergo simple imprisonment for one month, will meet the ends of justice and I order accordingly. The respondent is granted two months' time to pay the fine imposed on him. I will now pass on to Criminal Original No. 20 of 1952. According to the Punjab Government, the respondent made a speech in the Nila Gumbad Mosque on the 18th July 1952 in which he said inter alia:‑ "In Chak No. 235, in the jurisdiction of Mochiwala Police Station, the police and the Tehsil staff have exhibited grew; barbarity. In order to have possession from one Muhammad, women were made to dance naked and there was a good deal of beating. Houses were looted and the residents of those houses were rendered homeless. In this connection reports have been received against the Magistrate who was present there. This is the police of Qurban Ali Khan and the Magistrate of Daultana ......" The respondent denied that he had said the things attributed to him at which the learned Assistant Advocate‑General produced Manzoor Hussain, Head Constable, City Intelligence Staff, C. I. D. who had taken down in long hand the speech made by the respondent in the Nila Gumbad Mosque on the 18th July 1952. The witness deposed that the respondent had uttered the above quoted words and I see no reason not to accept that statement. The question that arises, however, is if what the respondent said amounted to contempt of Court. There is no doubt an attack on the police and on a Magistrate but as the conduct of the Magistrate as a judicial officer was not attacked, I do not' think the speech amounted to contempt of Court. The argument of the learned Assistant Advocate‑General in this case also was that the speech was likely to affect the case relating to the death of Nur Muhammad, A. S. I. I gave an opportunity to the learned Assistant Advocate‑General to prove that at the time when the respondent made the speech he knew that a case with respect to the death of Nur Muhammad A. S. I. was pending or imminent but he made a statement before me on the 11th January 1953 that he could produce no evidence to that effect. The fact that it is not established that the respondent knew that any case was pending or was contemplated would militate against the speech being considered contempt of Court. Moreover, as held by me already while dealing with Criminal Originals Nos. 18 and 24 of 1952, tire speech could not have any effect on the case relating to the death of Nur Muhammad A. S. I. I, therefore, dismiss Criminal Original No. 20 of 1952. The result, therefore, is that while Criminal Originals Nos. 18, 20, 23, and 24 of 1952 are dismissed, Criminal Original No. 17 of 1952, is accepted and the respondent in that petition is sentenced to imprisonment till the rising of the Court and a hue of Rs. 200 for payment of which he is granted two months' time, non‑payment within which he is shall entail further simple imprisonment for one month. A. H. Order accordingly.