P L D 1995 Lahore 147 (PLP)

Vide order, dated 17-4-1994, notice was issued to the Editor, Printer, Publisher and Proprietor of `The Muslim', Islamabad, the respondents herein, asking them to appear and show cause as to why they should not be punished under section 4 read with section 3 of the Contempt of Court Act, 1976, for committing the contempt of this Court by writing an objectionable editorial in its issue of 15th April, 1994 captioned `Farewell to Dr. Nasim Hasan Shah', and while doing so, criticising the separation of Judiciary from the Executive and throwing serious aspersion on the entire Judiciary and the judicial system.

2. In response to the notice so issued, the respondents put in appearance. One of the preliminary objections, which was raised during the initial hearing, was that Agha Murtaza Poya, who was one of the proprietors of the newspaper and was its founder Chairman, was not liable for any contempt committed by the other respondents, because ordinarily he could not be aware of what was being written, printed and published in the newspaper by its Editor, Printer and Publisher. When this point was still being mooted, this Court, vide its order, dated 6-6-1994, thought proper to refer this matter to the Hon'ble Chief Justice for its entrustment to a larger Bench as the newspaper had apparently tried to malign the entire judiciary and the judicial system in Pakistan and not this Bench'alone. However, the Hon'ble Acting Chief Justice, as it appears from his Lordship's order, dated 8-9-1994, did not accede to the request of this Bench and sent the case back with the observation that it may be dealt with as is deemed fit.

3. I have heard the learned counsel representing the parties and perused the record with their assistance. The learned counsel for the respondents refers to the joint written apology of the Editor, Printer and Publisher of the newspaper, dated 7-5-1994, already available on the file, and submit that, besides these regrets, the newspaper, in a subsequent editorial, has duly supported the process of separation of the Judiciary from the Executive, which is a Constitutional requirement, and has made sufficient amends for what was unintentionally written in its editorial comments, dated 15-4-1994. With these submissions, he requests that the apology of the respondents, namely, the Editor, Printer and Publisher, may be accepted and notice issued to them alongwith the Proprietor be discharged.

4. The learned Law Officer appearing on behalf of the State does not oppose the request of the respondents' counsel.

5. The separation of the Judiciary from the Executive is a Constitutional requirement based on the basic concept of separation of power in a Federal set-up like ours and it figures prominently in every Constitution so far framed for the country. But unfortunately its implementation continues to hang fire mainly on account of the reluctance of the bureaucracy to denude itself of the judicial powers which it happened to acquire during the British Rule to strengthen the grip of its rulers over the masses at the cost of their life and liberty. It was during the regime of late Mr. Zulfiqar Ali Bhutto, who was an enlightened politician having strong legal background, that a serious effort was made for the first time in this country to separate Judiciary from the Executive. To give effect to his policy decision in this regard, he got enacted the Law Reforms, Ordinance, 1972, but its implementation was deferred for some time. Some parts of this legislation were later enforced intermittantly but its main . core embodying the provisions for the bifurcation of magistracy into the Executive Magistratial and Judicial Magistrate is yet to be implemented.

6. The time limit originally fixed in Article 175(3) of the 1973 Constitution for the completion of this process continued to be extended by the Martial Law-regime by amending the Constitution at will, the last being till 14th August, 1987. After the restoration of democracy, the political regimes did not further amend the Constitution for the extension of time limit but at the same time they could not effect the requisite separation either. Eventually the matter came up before the Supreme Court of Pakistan arising out of a writ petition decided by the Sindh High Court. The Supreme Court in its I celeberated judgment reported as Government of Sindh and others v. Sharaf Afridi and others PLD-1994 SC 105 directed the Government to take out from its clutches the subordinate judiciary on the Magistrate side till 23rd March, 1994, by issuing necessary notification, but it continues to stall the implementation of this decision. Perhaps one of the, devices adopted by the Government was to prompt the press media to criticise and oppose the process of separation and succeeded in using `The Muslim', Islamabad, as a cat's paw. The newspaper, without appreciating the beneficial consequence of this decision, launched a scathing criticism against the separation of the Judiciary from the Executive though it had no apparent nexus with the retirement of Dr. Nasim Hasan Shah as Chief Justice of Pakistan except that he was the author Judge of the aforesaid judgment which is one of the landmarks in the judicial history and, if implemented in its true perspective, would go a long way in strengthening the democratic institutions in the country, and substantially improving the quality of justice allover.

7. It may be mentioned here that the aforesaid judgment of the Supreme Court is the final judgment of the highest judicial forum in Pakistan and under Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973, it is not only binding on all the executive and judicial authorities in the country, but in the discharge of their Constitutional obligations of acting in aid of the Supreme Court, they are also bound to implement it in letter and spirit. Since the judgment specifies 23rd of March, 1994 as the date on which the Judiciary stood separated from the Executive in all respects, even in the financial matters, all proceedings taken or being taken in judicial matters by the Magistrates working under the control of the District Magistrates in the country, are illegal and without lawful authority,. As a result, all findings of acquittal or conviction or any order passed in bail applications and other miscellaneous applications by such Magistrates, after the said date, stand annulled. It may also be noticed here that for the implementation of this judgment the Federal Government is said to have appointed some Committee, which also includes some Judges of the High Courts, I wonder how this Committee can tinker with this judgment to extend the date of its implementation specified therein. I am afraid, this Committee alongwith the Federal and Provincial Governments is not only guilty of violating the Constitutional mandate contained in Article 190 of the 1973 Constitution but also runs the risk of committing contempt of the Supreme Court. But nowadays who bothers about the Constitution and the Supreme Court when both Houses of the Legislature (Parliament) are crying hoarse for the implementation of the ruling of the Speaker of the National Assembly and that of the Chairman of Senate and the Government is caring a fig for them. One feels astonished: whether there is anything like Constitution and law, justice and fairplay in this part of the earth called Pakistan though its rulers claim it to be the best Islamic democracy in the world?

8. Anyhow, since the newspaper has realized its fault and, besides the respondents having submitted apology, it has, in the subsequent editorial comments, made sufficient amends by earnestly supporting the Constitutional mandate of separating the Judiciary from the Executive, I discharge the notice C of contempt issued to them with the hope that it shall play its role independently as a strong component in the fourth pillar of the State. AA./G-253/L Order accordingly.