P L D 1953 Peshawar 17 (PLP)

MUHAMMAD SHAFI, J.‑On being moved by two separate applications, one put in by the Advocate‑General, North‑West Frontier Province, who is also a Secretary to the Government, North‑West Frontier Province Legislative Department, and the other by an Advocate of Mardan, namely Qazi Muhammad Shafiq. this Court called upon (1) Fazal Illahi, (2) Lt. Col. Muhammad Akbar Khan of Hoti, and (3) Malik Din Muhammad, owner of Din Muhammadi Press Lahore, to show cause why they should not be convicted and punished for contempt of Court, or otherwise dealt with in accordance with law for publishing a pamphlet entitled as "Manshoor Azad Muslim League Yusafzai Subs‑i‑Sarhad 1951." This pamphlet has been printed in the press of respondent No. 3, who it appears after the initiation of these proceedings has died, and is, therefore, automatically dropped. Fazal Illahi who calls himself the munshi of Muhammad Akbar Khan, who in the pre‑partition days held the titles of Nawab and Sir, gave himself out to be the publisher thereof. The author was noted on the pamphlet as Manshoor Committee, and it was mentioned that it had been accepted by the Election Board of the Azad Muslim League Hoti Yusafzai, N: W. F. Province. The two applicants have alleged that this pamphlet though on the face of it published by Fazal Illahi, did in fact originate from Lt.‑Col. Muhammad Akbar Khan. The rule calling upon Fazal Illahi and Muhammad Akbar Khan to show cause why they should not be convicted for con tempt of Court was issued, because it was alleged in the applica tions that the above pamphlet contained matter which brought this Court as well as the Judges thereof into contempt, and meant to undermine the confidence of the public in all its judicial pronouncements and determinations. The learned counsel appearing for the respondents raised a preliminary objection that the proceedings should be quashed, because the two applications on which they have been initiated are not supported by affidavits, and are, therefore, bad in law, The learned counsel, however, subsequently discovered that at least one of the applications viz., that of the learned Advocate- General was in fact supported by an affidavit. He then argued that as the application originally instituted was not accompanied by an affidavit, nor was it thus accompanied at the time when the rule was issued by one of us sitting alone, it would be taken as not having been accompanied by an affidavit, and should, there fore, meet the same fate as suggested by him earlier. The learned counsel conceded that there was no statutory law providing that the applications moving a High Court for taking the contempt proceedings should invariably be supported by affidavits. He contended that it was contrary to the principles of natural justice to call upon any person to meet a charge of the contempt of Court without asking the applicant to substantiate his allegations by an affidavit. In support of his argument he produced two authorities, Amulya Chandra Bhadurt v. Satis Chandra Girl and others, reported in (A I R 1932 Cal. 255) and Shri Wasudeoraoji Sheorey v. Shri A. D. Mani Managing Editor Hitavada, reported in (A I R 1951 Nag. 26). He also quoted paragraph 58, Volume VII, 2nd Edition of the Halsbury's Laws of England. In the first two authorities we must confess that we have been unable to find anything, which would support the contention advanced. In the first case their Lordships held the following, with which we are in respectful agreement:‑‑ "In case of a charge of contempt of Court, the party charged cannot be called upon to answer anything that is not set out specifically in the grounds used before the Court a: the time the Rule is issued. The party concerned must know what are the points it has to answer. The Court has to proceed very carefully and cautiously and it is not enough that because a Rule has been issued it has to be determined in one particular manner, without the Court examining the grounds upon which it is issued." In the second case all that their Lordships of the Nagpur High Court held was that though the proceedings for contempt of Court were in the nature of criminal proceedings there was nothing to preclude an alleged contemner from making an affidavit. Para. 58, Volume VIT, 2nd Edition of the Halsbury's Laws of England only lays down that to found an application for commit tal or attachment in the case of criminal contempt, the facts constituting the alleged contempt must be proved by affidavit, There can be no quarrel with this proposition of law, because before a person is actually convicted for contempt of Court, the allegations made against him must be proved beyond a reasonable doubt and to the satisfaction of the Court. We are inclined to take the view that in certain cases where the question of fact involved appears to be somewhat doubtful the Court before issuing a rule might consider it proper as a matter of prudence to ask the applicant to substantiate his allegations by affidavit, but there is no justification for laying down a hard an fast rule that all applications for initiating the contempt proceed ings should invariably by supported by affidavits, and if they are not, they should be dismissed in limine. The contempt of Court proceedings may not necessarily be initiated by any private person. The High Courts can initiate them of their own accord too, because they are taken not in the interest of any individual Judge, but in the interest of the administration of justice generally. If a Court is satisfied by an application of a certain person, be it supported by affidavit or not, that a Court or a Judge has been scandalized, it will be perfectly justified in issuing a rule calling upon the persons prima facie guilty to show cause why they should not be punished for it. We consequently hold that the two applications are in order, and the proceedings taken against the respondents cannot he quashed for the mere reason that the applications when put in were not supported by affidavits. The preliminary objection is overruled. The petitioners will produce their evidence en 3rd May, 1952. Qazi Muhammad Shafiq petitioner's counsel submitted that he would require the assistance of the Court to send for the witnesses, and for that purpose he would file a list of those witnesses. He should do so within three days of this order. On the list so submitted, the processes would be issued by the office according to law. Orders announced. A.H. Preliminary objection overruled.