P L D 1996 Supreme Court 42 (PLP)

SHAFIUR RAHMAN, J.‑‑‑ On Tuesday, the 14th of December, 1993 on the front page of Urdu Daily 'Musawat' appeared a news item with the following heading:‑‑ The detailed news which appeared underneath this heading purported to be a reproduction of the speech delivered in English the previous evening by Mr. Khalid Masopd, Regional Director, Pakistan Narcotics Control Board to the Rotarians of Lahore and their guests including a few foreigners. In this speech Mr. Khalid Masood reportedly covered the history and the global dimensions of the drug menace and as reported in the newspaper expressed the following? views:‑‑ 2-coming to the notice of this court a suo motu notice was ordered to issue, as is required under Article 204 of the Constitution, Order XXVII of the Supreme Court Rules, 1980 and section 7 of the Content of Court to the following:‑‑ (1) Mr. Khalid Masood, ?????? Regional Director, ?????? Pakistan Narcotics Control Board, Lahore. (2) Editor, Daily Musawat, Lahore. (3) The Printer and Publisher, ?????? Daily Musawat, Lahore. They were called Upon to appear in person to answer the charge and show cause why they should not be punished for contempt of Court.

3. Mr. Khalid Masood, on appearance, prefaced and concluded his written explanation with an apology as hereunder:‑‑ "That your humble respondent, Khalid Masud offers unconditional apology to your Lordships for having caused embarrassment to your Lordships with regard to the observations and remarks which had been attributed to the Answering respondent, having been made by him during the course of a talk at the Rotary Club meeting on 13‑12‑1993 ... ... ... ... ... .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... Without giving the details of the circumstances relating to the present case, the Answering respondent humbly places himself at the mercy of the Honourable Judges . ... ... ... ... ... ... ... ... ... ... .... ... .... ... ... ... ... ... .... ... ... ... ... ... ... ... ... .. ... ... ... ... .... The Answering respondent again tenders unconditional apology and places himself at the complete mercy of this august Court as submitted at the outset." He filed the variant reporting of the same speech in daily newspapers like 'Jang', 'Khabrain' and 'Pakistan'. He explained this variance in reporting this speech as hereunder:‑‑ "A casual reference made by the present respondent regarding influence of 'Drug Mafia' in countries like Italy was inadvertently attributed to the superior judiciary of our own country although the present respondent can never think of uttering contemptuous, derogatory or ‑scandalous remarks against our Superior Judiciary whom he has always held in high esteem." He also filed with his explanation a contradiction or clarification which he had issued forthwith on 14‑12‑1993 on reading the news‑items published by newspapers other than Musawat. He addressed this contradiction (Exh.R.1/B) to the Resident Editor, Daily 'Jang, Lahore, Editor‑in‑Chief Daily 'Pakistan', Lahore and the Editor‑in‑Chief, Daily 'Khabrain', Lahore. The portion relevant is reproduced hereunder:‑‑ "(iii) Reference to politicians, bureaucrats and industrialists in no way related to the situation in Pakistan. As a matter of fact I had touched briefly upon the trial of Col. Oliver North of U.S.A. and. had stated that his trial demonstrated that politicians, bureaucratic establishments encouraged drug trafficking operations when it suited their interests. Unfortunately this observation of mine was turned round and applied to our politicians and bureaucrats. (iv)?? With regard to the influence of drug traffickers, I had stated that the profit motive and margin was to staggeringly huge, that attempts are constantly made by them to gain political clout and thus subvert our social and legal processes and also buy the loyalties of staff in enforcement agencies. (v) It was in reply to a question that, I stated regarding the matter of at least one MPA who had received conviction in UK of drug related charges as pending before the Honourable High Court, Lahore. (vi)? No references were made during the course of my talk to the honourable members of our judicial set‑up. My remarks regarding judicial officers related to the international scene and I had stated that if the activities of the drug traffickers were not effectively checked Presiding Officers of our Courts could also be well at risk because in the drug trade scruples and regard for law did not have any place. I vehemently deny whatever has been attributed to me in this regard because I have nothing but the highest esteem for our Courts." Out of the newspapers addressed only daily 'Jang, Lahore published the contradiction/clarification on 15‑12‑1993.

4. As regards the material published in 'Musawat' on 14‑12‑1993, Mr. Khalid Masood in his reply stated as hereunder:‑‑ "That it was only after the receipt of show‑cause notice from this Honourable Court that the present respondent came to know that Daily Musawat, Lahore had also published the news in its newspaper. The present respondent never uttered the remarks attributed to him in the newspaper against the Honourable Judges of High Court and this Honourable Court. Its appears that the remarks/statement attributed to him in result of misunderstanding."

5. While making oral statement, without oath, in Court, he further explained his utterances as hereunder:‑‑ "Talking about the involvement of bureaucrats and publishers in illicit drug menace, I made, a particular reference to the trial of Col. Oliver North. I also said that drug menace had assumed great influence in various areas of human life and that attempts arc made by drug barons to influence political, social and judicial system. I mentioned that in certain foreign countries even the superior Courts were not free and were at risk from the drug mafia. I particularly referred to the situation in Italy where, I said were instances that when some judicial officers had either been bought and some had also been eliminated. I used the word 'superior Courts' in the context of foreign Courts. At the end of function a particular question was put to me about the Pakistani Courts. I categorically stated that I had referred to Courts of countries other than Pakistan and that our Courts are a very powerful institution and that no matter how high a person is, a serious view of law breaking is taken as was done by our Honourable Courts when Mr. Aslam Beg ex‑COAS was tried for contempt. Therefore, I said nothing should be printed or said about our Courts." In answer to Court questions he stated as follows‑ "So far as, I remember, I had not mentioned the Supreme Court and High Courts Judges at all but I had used the word superior judiciary and that too was in the context of other countries. I did refer in my speech to the bureaucrats, the industrialists, members of the assemblies, politicians but, I did not use the words 'pay‑roll'. I said that attempts were made to buy them. These categories and a reference to them was made both in the national context and in the international context. I did not group superior judiciary with the above category of persons and I had made a reference to the superior Courts with a reference to foreign countries keeping in view the trial of Col. Oliver North. I had in my mind the superior judiciary of Italy and Columbia when I referred to superior judiciary in my speech By superior judiciary, I meant in my talk comparable Courts of Italy and Columbia to our Courts like High Courts and Supreme Courts."

6. Mr. Ashiq Jaffari (respondent No. 2) the Editor Daily 'Musawat' and Mr. Sajid Zia (respondent No. 3) the Printer and Publisher of daily' Musawat' Lahore, filed a joint written reply to the notice. Both claimed to have relied on their experienced and qualified reporter Mr. Asad Munir Bhatti (respondent No. 4). The Editor (Mr. Ashiq Jaffari), however, hereunder:‑‑ "The Editor (who is one of the answering respondents) did note some reference to the superior Courts. The overall impression of the Editor was that in view of the context in which the speech was delivered, the same pertained to the superior Courts of some foreign countries. At no stage was the Editor under the impression that the observations and the remarks about the superior Courts related to the superior Courts of Pakistan." The Printer and Publisher (Mr. Zia Sajid) explained his role in the matter as hereunder:‑‑ "That the Answering co‑respondent Mr. Zia Sajid is the printer and publisher of the Newspaper (Daily 'Musawat', Lahore) and he printed and published the matter which was entrusted to him in the normal course of work. Mr. Zia? Sajid, regardless of the fact as to what extent he is responsible for any fault in the matter, he most humbly begs for mercy by tendering unqualified and unconditional apology to this august Court for, which both the Answering respondents have great respect and hold it in highest esteem." Their joint written explanation concluded as follows:‑‑-- "The Answering respondents with all humility place themselves at the mercy of this august Court and with sincerity and contriteness beg to be pardoned as they submit unqualified and unconditional apology to their Lordships. Needless to repeat that the answering respondents hold this Honourable Court and the judiciary of Pakistan in the highest regard."

7. When examined orally without oath, the Editor (Mr. Ashiq Jaffari? respondent No.3) gave the following explanation:‑‑ "We have responsible reporters. On receipt of the report about this event, I consulted my Sub‑Editors and cleared the press‑report in the form in which it was published. After entrusting it to the Sub‑Editor I did not see the final news that was going for print. I read it the next day in the paper. After receiving the notice I published clarification with regard to the news in daily 'Musawat' on 1‑1‑1994 (Exh. R.3/A)." In reply to Court question he stated as hereunder:‑‑ "In the report that has been published, the reference appears to be to Pakistan and not to the world, or other countries' Courts and society. I could not get hold of the original report which was submitted by the Reporter. I am also responsible for checking publications and to ensure that only proper material is published apart from the Chief Executive and others." On being cross‑examined by the learned counsel representing Mr. Khalid Masood, he (the Editor), stated as hereunder:‑‑ "I had called the reporter and asked him whether this reference to the Courts was meant for our Courts or foreign Courts and he had told me that it was meant for foreign Courts. If I had known that it has reference to Pakistani Courts I would have stopped publication of it. I did not read the news when it appeared and for that reason could not issue any correction with regard to it. Eight Sub‑Editors prepare the headlines. None of the Sub‑Editors owned responsibility for this headline." The clarification (Exh.R.3/A) dated 1‑1‑1994 to which Mr. Jaffari referred reads as hereunder:‑‑

8. Mr. Zia SaJid, the Printer and Publisher (respondent, No.4) made the following statement:‑‑ "My name appeared as Printer and Publisher though I have no duties concerning the printing and publication of the newspaper. The actual Printer and owner of the Press is Sajjad Bukhari who is Chief Executive of Daily 'Musawat'. He used to get it printed and published. For the last three months I have been on leave and constructing my house." In reply to a Court question he stated:‑ "I have filed a signed statement. I had signed it without reading."

9. On receipt of the written statements of Mr.Khalid Masood, the Editor (Mr. Ashiq Jaffari) and the Printer and Publisher (Mr.Zia Sajid), we bad ordered that a notice should also issue to Mr. Asad Munir Bhatti, the Staff Reporter. He too appeared as a respondent, filed his written explanation and was orally examined without oath. He also filed the notes of the speech delivered by Mr.Khalid Masood taken while he was making it.

10. In his written reply, after offering profused apologies, Mr. Asad Munir Bhatti stated:‑‑ "That whatever the speaker said on the subject, was delivered to the news room as per the practice. It may be pointed out that this speech of Khalid , Mas6od was covered by various reporters and was published in other newspapers." In his oral statement recorded without oath, he said; "I had correctly prepared my report on the basis of the speech delivered by Mr.Khalid Masood. Even in my notes I had mentioned the use of the words Supreme Court and High Courts Judges and it has been so noted at portion X in Exh.R‑2/A.", About his duties as reporter he said:‑‑ "As a Reporter I considered it my duty to report correctly and properly factually all the events that take place. It is for the editorial superiors to check it before publication and to trim it according to the policy and requirement of the law. For this reason I correctly prepared the report, the legal implications of it being not kept in view by me because at that stage it was meant for internal use." In reply to a question by the learned counsel for Mr.Khalid Masood, he said:‑‑ "I have appeared in MA (History) with International Affairs Examination. I had joined journalism after B.A. I have been reporting for the last two years about the narcotics activities. It is incorrect that the words mentioned in the report were not said by Mr. Khalid Masood."

11. Two witnesses, both reporters; one (Mr. Muhammad Azam) of Urdu Daily'Pakistan' and the other (Mr. Arshad Ansari) of Urdu Daily Jang, who were present in the discharge of their duties while speech was delivered were examined. Both happened to be qualified and experienced reporters. The statement of one, Mr.Muhammad Azam, Reporter Daily 'Pakistan' Lahore (P.W.1) has four distinct parts, one of what he heard Mr. Khalid Masood is peaking, second the exact clarification offered by speaker on a pointed question being put to him, third what he mentioned in the report of the speech prepared by him, and fourth what actually was published in the Daily 'Pakistan' the following day. These are reproduced separately, as hereunder:‑‑ "(i)??? In his speech which was delivered in English Mr. Khalid Masood had made a mention of the various institutions including the High Court and Supreme Court Judges as being on the pay‑roll of the drug traffickers. (ii)??? On a question being put to him Mr.Khalid Masood had said that he had mentioned the High Court and Supreme Court Judges in the context of world order and did not refer particularly to Pakistan's High Court and Supreme Court Judges and the former Chief of Army Staff Mr. Aslam Beg had already been proceeded against for contempt so that part should not be published. (iii)?? I in my detailed report, while reproducing the speech delivered by Mr. Khalid Masood, mentioned High Court and Supreme Court Judges. (iv)? After discussing ‑it with Mr. Tahir, Chief Reporter and Mr. Tariq Abdullah the Editor struck it off from my note and substituted the reference to High Court and Supreme Court Judges by The concluding portion of the news published in the Daily 'Pakistan (Exh.P.W.I/A) bears out the second part of the statement of this witness. On cross‑examination this witness stated:‑‑ "There was some confusion over whether Mr. Khalid Masood intended to include the High Court and Supreme Court Judges o Pakistan as well for which reason the question was put to him b3 somebody from the audience after the speech. He gave reply to it which I have already mentioned that it was intended and referred to the foreign judiciary and not that of Pakistan." In reply to Court question, he further clarified:‑‑ "The High Court and Supreme Court Judges was clearly mentioned by Mr. Khalid Masood in his speech and i heard it. It was substituted by for High Court and Supreme Court Judges in order to" uphold and not undermine the dignity of our Courts."

12. The other witness Mr. Arshad Ansari, Reporter of Daily 'Jang' (P.W. 2) stated as hereunder:‑ "Towards the best five minutes of his speech Mr. Khalid Masood had said that the politicians, the bureaucrats, the High Courts and the Supreme Court Judges are on the pay‑roll of drug maria. Mr. Khalid Masood had not specified at any stage that he had meant the Courts other than Pakistani Courts and the Judges other than of Pakistan's High Courts and Supreme Court Judges.,, As regards the news which appeared in the Daily 'Jang' of the same date this stated:‑‑ "in accordance with the Policy of our newspaper and in consultation with my Editor I had prepared the Report . .. ... ... ... .. ... ... ... .. That part of the speech was not reproduced in my note for publication as it is our policy not to undermine the dignity and the standing of the Courts and the Judges of the Superior Courts and for this reason I did not mention the Judges of the High Courts and the Supreme Court in my Report." This witness exhibited (Exh.P.W.2/C) a report of the same speech appearing in Urdu Weekly "Akhbar‑e‑Jehan, Karachi" (27th December, 1993) ‑ ‑ 2nd January, 1994, at page

12. The relevant portion of it is as hereunder:‑‑

13. With this state of record the question of fact for determination Js, whether Mr. Khalid Masood in his speech to the Rotarians used the words attributed to him by the press reporters, that is, that the High Court and Supreme Court Judges are on the pay‑roll of drug mafia. Not only the three reporters who covered the speech have said so, the record (Portion "X' on Exh‑R‑2/A) contemporaneously prepared shows this. Besides, it is such a statement which necessarily and immediately invited the question put to the Speaker, whether reference to Judges of High Courts and Supreme Court was a reference to the Courts of Pakistan. Further, a question of prohibition against its publication would also arise only if it referred to our Courts and not the Courts of other countries. This is quite consistent with the written clarification which the respondent addressed to the press‑ The respondent, Khalid Masood therefore, clearly and definitely uttered these words in addressing the Rotarians at a formal well‑attended meeting. His act of prohibiting the publication of it in print would not make him directly responsible for what appeared in the press. ‑

14. The reporter of Musawat made out an accurate written report of the utterance which is the subject‑matter of these proceedings.

15. We are somewhat shocked and surprised at the casual and irresponsible attitude of Mr. Ashiq Jaffari (respondent No.3) in receiving, in handling and in dealing with this report and exercising his control and authority as Editor over its publication. His clarification appearing in Musawat on 1‑1‑1994 (Exh.R.3‑A) is worse. Even his apology in this background of total unawareness of the wrong' done appears to be a mere formality.

16. The Printer and Publisher Mr. Zia Sajid has been equally irresponsible, if not more. He submitted his written statement in Court without reading it, without being aware of its contents.

17. In this factual background the following questions of law arise in these proceedings:‑‑ (1)??? Does the oral utterance in a select public gathering to the effect that High Court and Supreme Court Judges are on the pay‑roll of drug mafia to the offence in the nature of contempt of Court. (2) Does the printing, publication and circulation of the same words in the newspaper amount to an offence in the nature of contempt of Court? (3)?? If it is an offence: (i)??? Is it necessary for the Court in the interest of effective administration of justice to proceed against the offenders? (ii)?? What is the nature, decree and responsibility of the individual offenders? (iii)?? The sentence for the offence, if any?

18. The learned Deputy Attorney‑General argued that the case' of Sir Edward Snelson v. The Judges of the High Court of West Pakistan and another (PLD 1961 SC 237) covers most of the issues of law raised in this case. He has emphasised the fact that such utterances as were attributed to the respondent No. I and which were published in the daily 'Musawat' amounted to slander in respect of oral utterances and libel in respect of published material. It was immaterial that the individual Judge was‑ not identified. An attack directed at a small group of Judges was itself sufficient to bring the words attributed within the purview of law of contempt. The Editor and Printer have a heavy duty/responsibility in respect of materials published and even if they have been negligent, inattentive or absent they cannot absolve themselves merely on that account of the consequential culpability and responsibility in the matter. He referred in this context to the decision in Saadat Khialy, Staff Reporter ("Kohistan" Daily) and others v. The State and another (PLD 1062 SC 457) and pages 290 and 291 of the Miller's Contempt of Court to state that benefit in the matter can be extended to a reporter but not to the Editor and the Printer and Publisher thereof.

19. The learned Additional Advocate‑General contended that the charge levelled against the respondents was fully brought out and there was no mitigation in the case of respondent No. 1 the speaker, respondent No. 3 ? the Editor and respondent No. 4 ‑‑ the Publisher. There could be some mitigation in the case of the Reporter who was supposed to prepare a correct report of the events as they took place and leave it to the editorial staff to bring it in accord with the law and the policy of the newspaper.

20. The learned counsel for the respondent No. 1 brought out the fact that the respondent No. 1 had immediately on becoming aware of the misreporting of his speech had sent detailed clarification to the Editors‑in‑Chief of three newspapers which had come to his‑ notice. He had at the earliest opportunity 'tendered apology in the matter. With his standing and background in the Police Service he would never think of uttering words degrading the Courts and his Judges. His effort in making the speech was to counter‑maligaing of Pakistan in the involvement of drug menace and whatever reference to bureaucrats authorities and Presiding Officers of Courts was made, it was with reference to other countries particularly Italy and Columbia. No reference was made, intended to be made, in respect of the Courts of Pakistan. The learned counsel also pointed 'out that in the matter of contempt the Courts exercise parental jurisdiction and where the mistake has taken place in a confusion and misunderstanding, as has been stated by some‑of the reporters who had not fun across to the utterance of the speaker, the reliance could not be fully placed on their reporting. Finally the learned counsel stated that if two views on the same evidence are plausibly possible, the one favouring the person standing the trial should be preferred over the one against him. On that principle also the respondent No. 1 is entitled to be discharged of any responsibility in the matter and he is sincerely apologetic of the trouble to which this Court was put in the matter, of holding an inquiry.

21. The law of Contempt stands codified' in the Contempt of Court Act, 1976. By its section 3 the "contempt of Court" has been defined as hereunder:‑‑ "

3. Contempt of Court.‑‑‑Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a wilful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of Court or the administration of law into disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalise a Judge in relation to his office, or to disturb the order or decorum of a Court, is said to commit 'contempt of Court." (The underlining has been done to indicate the portion relevant to these proceedings). This provision is followed by a number of provisos, none of which is relevant, deserves attention or mention, except proviso (ix), as hereunder:‑‑ "Remarks made in an administrative capacity by any authority in the course of official business, including those in‑ connection with a disciplinary inquiry or in an inspection note or a character roll or confidential report." Even, in the absence of such a statutory law, Article 204 of the Constitution empowers this Court to deal with such contempt.

22. The utterance attributed to Mr. Khalid Masood and published in the Daily 'Musawat' falls within the express words of section 3 of the Contempt of Court Act. Outside the statute such utterance amounts to scandalization of 18 Court or a Judge. In R. v. Gray (1900) 3 All. ER 59) this sort of contempt has' been distinguished from others in the following words:‑‑ "Any act done for writing published, calculated to bring the Court or a Judge of the Court into contempt or to lessen his authority, is a contempt of Court. That is one class of contempt. Another class is any act done, or writing published, calculated to obstruct or interfere with the due course of justice, or‑the lawful process of the Court. That is another class of contempt. The former class belongs to that category which LORD HARDWICKS characterised as "scandalising the Court itself." Re Read and Hugonson (1), 2 Atk. at p.

471. The last case of this category which came to the attention of this Court was that of Sir Edward Snelson (PLD 1961 SC 237).

23. Unlike the popular belief and the first impression that this law protects the‑Courts and the Judges, the real purpose or the raison d'etre Of the D law is the protection of ‑the public. Borrie and Lowe's Law of Contempt contains the following observations relying on authority of R. v. Almon (1765) Wilm 243 at 255‑‑Re: The Evening News, Newspaper (1830) 1 NSWLR 211 at page 237):‑‑ "The necessity for this branch of contempt lies in the idea that without well‑regulated laws a civilized community cannot survive. It is E therefore thought important to maintain the respect and dignity of the Court and its officers, whose task is to uphold and enforce the law, because without such respect, public faith in the administration justice would be undermined and the law itself would fall into disrepute. Wilmot, J. expressed this basic premise in R. v. Almon." In re: The Evening News, Newspaper (1830) 1 NSWLR 211 at page 237 Sir James Martin, CJ said:‑‑ What are such Courts but the embodied force of the community? whose rights they are appointed to protect? They are not associations of a few individuals claiming on their personal account specific privileges and peculiar dignity by reason of their position. A Supreme Court like this, whatever may be thought of the separate members composing it, is the accepted and recognized ‑tribunal for the maintenance of the collective authority of the entire community it derives its force from the knowledge that it has the whole power of the community at its back. This is a power unseen but it is efficacious and irresistible and on its maintenance depends the security ‑of the public."

24. In a more recent New Zealand case, Soliciter‑General v. Radio Avan Limited (1978) 1 NZLR 225 at 230 (NZCA) the following observations were made.‑‑‑ 'The justification for this branch of law of contempt is that it is contrary to the public interest that public confidence in the administration of justice should be undermined." ????

25. The importance of this power was emphasized in Sir Edward Snelson's case (PLD 1961 SC 237) in the following words:‑‑ "... paramount importance which must be given by every organ of a civilized Government, in which the administration of justice is retained as an integral part of the machinery, to secure the Courts, and in particular the superior Courts of Record from all attempts to interfere with them in the administration of justice. The power of committal for contempt is given to such superior Courts in order that they may swiftly and summarily perform one of their most important duties which is to protect themselves against wilful disregard or disobedience of their authority, by visiting with prompt punishment any conduct which tends to bring their authority and the administration of justice into scorn or disregard. It is evident that a Court of justice which has no power to vindicate its dignity or which having the power fail to perform the duty of vindicating its dignity would swiftly lose all hold upon the public respect and in consequence the maintenance of law and order through the agency of the Courts of justice would be rendered impossible. The dignity and authority of the Courts has a link with the supremacy and majesty of the law. Any conduct which is calculated to diminish that dignity or authority is a criminal contempt a Court is under duty to punish. The Courts of justice are a creation of the sovereign authority, but their mainstay rests in the public confidence, and anything which is calculated to withdraw the public confidence from them has the character of a libel to be visited by action in contempt."

26. It is provided in the enacted law of Contempt of Court (section 7) that apart from the sufficiency of grounds for believing that a person has committed contempt of Court a further conclusion has to be drawn by the Court that "it is necessary in the interest bf effective administration of justice to proceed against him". Not every case of contempt demands immediate punitive proceedings. This Court has been for sometime past looking with indulgence and tolerance at equivocal, oblique remarks and innuendo directed at superior Courts and their proceedings/decisions. Remarks like the once made by respondent No. 1 (Mr. Khalid Masood) and published by respondents Nos. 2 and 3 (Mr. Ashiq Jaffari and Zia Sajid) which are unequivocal, directly scandalize the Court are abiding in nature and effect, tend to impair public confidence in the authority, and integrity and effectiveness of the administration of justice. Such contempts call for immediate punitive action. In punishing such contempts the Courts safeguard the public interest in ensuring that the administration of justice is duly protected.

27. The respondent No. I (Mr. Khalid Masood) did take care to contradict immediately what appeared in the press and also in prohibiting the reporters from printing offensive material. He, however, did not disclose correctly and forthrightly what exactly was his utterance. It was by collection of material in the form of evidence and notes prepared that this Court has come to a positive conclusion that he did use in his speech the offensive words. The mitigation which could appear otherwise is dislodged by such a plea and conduct.

28. The respondent No. 2 (Mr. Ashiq Jafferi) in this case was aware of the pernicious content of the report which was going for print. Even after its vicious nature was brought to his attention by notice of contempt from this Court the clarification which he issued on 1‑1‑1994 (Exh. R3/A) gives the impression that the realization did not dawn on him even then of the "great wrong done. He even then thought that there could be two opinions about its contents. Such attitude towards superior Courts is inexcusable.

29. As regards the responsibility of respondent No. 3 (Mr. Zia Sajid) ‑?Printer and Publisher, a Full. Bench of the Lahore High Court in Habib's case (AIR 1926 Lahore 1) held that an Editor, Printer and Publisher was liable even though he was absent when the matter was printed and published. The High Court dealt with the matter in the following words:‑‑ "In these circumstances the fact that he was absent when the article was published does not, to any material extent, relieve him from the serious responsibility that rested upon him as the editor, printer and publisher of the newspaper in question." In another Full Bench case The Crown v. Amin‑ud‑Din Sahrahi and another (AIR 1949 Lahore 266), the High Court held as hereunder:‑‑ "Respondent Sehrai alleges that he had no knowledge of the article which was sent to the press before mid‑day on 23rd February. He states that his mother had died on 20th February when he was in Karachi where he had gone to attend the Annual Session of the Pakistan Muslim League Council and that he returned to Lahore on 21st February to join her funeral. On 22nd February he stayed at home for Fatiha Khawani and on 23rd for the Qul ceremony. It may be that he was not aware of this article but he admittedly was at Lahore both on 22nd and 23rd February and if he left the publication of the paper in irresponsible hands with the result that a scandalous article of this kind appeared in his paper he is still liable. The case is very similar to the case in Crown v. Syed Habib (6 Lah. 528; AIR (13) 1926 Lah. 1; 26 Cr. LJ. 1409 SB) in which the editor of a paper was convicted of contempt though on the date of the publication he was absent from Lahore where the newspaper was published. In the present case we do not think that the presumption arising under section

7. Press and Registration of Books Act, that the first respondent is the editor of every portion of the issue of the Jadid Nizam of 24th February is rebutted by the affidavit of that respondent." The responsibility of the Editor and Printer and Publisher was dealt with in R. v. Odham's Press, Ltd. and others ((1956) 3 All England Reports 494) and the Editorial Note summarizes it as hereunder:‑‑ "The ratio decidendi of this decision may be summarised by saying that mens rea is not an essential element of the offence. Substantial fines were imposed on the proprietors, having regard to the fact that the matter must have been published with a view to increasing the' circulation of the newspaper, on the editor, having regard to the fact that in law he took responsibility for what was published in the newspaper."

30. As regards the responsibility of the Reporter ‑ respondent No. 4 (Mr Asad Munir Bhatti) Borrie and Lowe's Law of Contempt' classifies the Reporters as hereunder:‑‑ "There are basically three types of reporter: first there is the reporter whose sole responsibility is to gather and collect all the available information on a particular topic, but who will neither be expected to appreciate the significance of such information nor bear any responsibility for the final publication. Second is the type of reporter who, being experienced, will not only be expected to appreciate the significance' of the information, but whose reports will be published more or less as they stand. Third is the reporter who is not only responsible for collecting information, but who ,will also write the whole article himself. The first reporter cannot be considered to be guilty of a contempt since he will lack the necessary mens rea .‑‑ he cannot be said to intend to‑publish the information otherwise than to‑the Editor and neither will he have committed the actus reus, since he cannot be said to have published the information nor to have caused it to be published; for he bears no responsibility for the final publication.‑ On the other hand, both the second and third type of reporter may be held responsible for contempt. In both cases the reporters must be said to have the necessary mens rea (i.e. the intent to publish) because they know that what they have written may be published. It is also submitted that both reporters have committed the actus reus, because they have caused the information to be published to the general public." . We find from our assessment and the material on record that the Reporter ‑‑ respondent No. 4 (Mr. Asad Munir Bhatti) fell in the first category and he cannot be held responsible for the contempt of Court that resulted from the report which he submitted to the Editor (Mr. Ashiq Jafferi), about which the Editor questioned 'him. and which report was passed to the Editorial staff for scrutiny.

32. In view of the findings recorded by us the respondents Nos. 1 to 3 ‑?Mr. Khalid Masood, Mr. Ashiq Jafferi and'Mr. Zia Sajid are found guilty of contempt of Court. Each one of them is sentenced under section 4 of the Contempt of Court Act to imprisonment till the rising of the Court and a fine of Rupees five thousand each or in default to one and a half month's simple imprisonment. A period of fifteen days is allowed to them for paying the fine. Mr. Asad Munir Bhatti (respondent No. 4) is found not guilty and the notice of contempt ‑ of Court which issued against him is discharged. (Sd) Shaflur Rahman, J. ?(Ajmal Mian, J) AJMAL MIAN, J.‑‑I agree subject to my note.?????????????????????????????????????????????????????????????? MANZOOR HUSSAIN SIAL, J.‑‑I also agree with the note of Ajmal Mian, J. MUHAMMAD RAFIQ TARAR, J.‑‑‑I also agree with note of Ajmal Mian, J. SALEEM AKHTAR, J.‑‑I also agree with note of Ajmal Mian, J. AJMAL MIAN, J.‑‑‑I have had the advantage of reading the well? reasoned judgment proposed to be ‑delivered by my learned brother Shaflur Rahman, J. I agree with the same. However, I would like to add a few lines. The rationale for providing Law of Contempt has been succinctly dilated upon by this Court inter alia in the case of Sir Edward Snelson Y. The Judges of the High Court of West Pakistan and another (PLD 1961 SC 237). The above judgment was rendered‑ prior to the. enforcement of the .Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. Our Constitution is unique as it emphasises at more than one place the Independence of Judiciary. The Preamble which has become substantive part of the Constitution by virtue of incorporation of Article 2A provides that "wherein the Independence of Judiciary shall be fully secured". To reinforce and to implement the above objective ‑ of the Constitution, clause (3) of Article 175 lays down that the Judiciary shall be separated progressively from the Executive within three years, which period was finally substituted by President Order. No. 14 of 1985 as 14 years. In my view, the Independence of Judiciary cannot be ensured if people are allowed to utter or print scandalous matters which may scandalise the Court or tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt. This will not only undermine the authority of the Court but will also impair/shake the confidence of the people in it, without which no Court can function and I discharge its Constitutional mandate.

2. To eliminate the above possibility, in our Constitution Article 204 has been incorporated which confers the power on the Supreme Court and the High Court to punish any person for the contempt. It may be advantageous to reproduce the above Article 204, which reads as follows:‑‑ "204.‑‑(l) In this Article, 'Court' means the Supreme Court or a High court. (2) A Court shall have power to punish any person who‑‑ (a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the court; (b)??? scandalises the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; (c)?? does anything which tends to prejudice the determination of a matter pending before the Court; or (d) does any other thing which, by law, constitutes contempt of the Court. The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court." A plain reading of the above Article indicates that the word "Court" used in the above Article has been defined in clause (1) as means the Supreme Court or a High Court. It may further be noticed that a Court in terms of the above Article has been empowered to' punish any person who commits any of the acts mentioned in above‑quoted sub‑clauses (a), (b), (c) and (d) of clause (2). For the purpose of the present controversy, it may be pointed out that the above‑quoted sub‑clause (b) renders a person liable to be punished if he scandalises the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt. The incorporation of the above Article indicates that the framers of the Constitution did not wish to leave the matter of contempt of the Superior Courts to be subject‑matter of a statute and, therefore, the punishment and the definition of the term "contempt" have been provided, for in the above‑quoted clause (2) of the above Article. :the above Article is in line with Articles 176 and 123 of the late Constitutions of the Islamic Republic of Pakistan of 1956 and 1962, respectively.

3. Indeed in the above‑quoted clause (3), it has been provided that the exercise of the power conferred on a Court by this Article may be regulated by law and subject to law by rules made by the Court, but, in my view, it does not mean that a statute can control or curtail the power conferred on the superior Courts by this Article, nor it means that in the absence of a statute on the above subject, the above Article will be inoperative. The law referred to in clause (3) of the above Article relates to procedural matters or latters which have not been provided for therein.‑‑‑‑ Though the Preamble to the Contempt of Courts Act, 1976 (hereinafter referred to as the Act) purports that the Act has been enacted pursuant to above Article 204 of the Constitution, but factually, it is not confined to the Supreme Court and the High Courts and covers all Courts including subordinate Courts as is evident from the definitions of the terms "Judge" and "judicial proceedings" given in clauses (a) 10 and (b) of section 2 of the Act and of the definition of the expression "Contempt of Court" provided for in section thereof. In the case in hand, it is not necessary to examine the question, whether any provision of the Act is in conflict with the above Article. The above question may be examined in an appropriate case.

4. The other aspect which I would like to highlight is that the rule of criminal jurisprudence that if two views on the same evidence are plausibly possible, the one favouring the person standing trial should be preferred over the one against him, cannot be pressed into service in contempt proceedings as the same are not criminal proceedings in stricto senso, but are sui generis in nature partaking of some elements of both civil and criminal proceedings. In this regard reference may be made to the following observations of Hamoodur' Rehman, J. ‑(as his Lordship then was) in the case of Saadat Khialy, Staff Reporter ("Kohistan" Daily) and others v. The State and another (PLD 1962 SC 457 at pages 463 and 464):‑‑ "The suggestion, furthermore, that the contempt proceedings were in the nature of criminal proceedings and, therefore, the procedure adopted for criminal trials under the Code of Criminal Procedure must also be observed in such proceedings appears to us also to be misconceived. The offence of contempt of Court is by its nature purely sui generis. It is a power given to superior Courts to punish summarily any attempt to interfere with the administration of justice, upon the principle that persons who have duties to discharge in a Court of justice should be protected and shielded by the law in order that they may safely resort to Courts of justice. The nature of a contempt of Court proceeding was dealt with in the case of The State v. Moulana Abdul Rashid Tarkabagish (PLD 1959 Dacca 252) by the Dacca High Court and it was there pointed out that contempt of Court proceedings were sui generis in nature partaking of some of the elements of both civil and criminal proceedings but really constituting neither, that there was no fixed formula for contempt proceedings and that technical accuracies were not required, nor were we bound by the provisions of the Code of Criminal Procedure or by the technicalities of ordinary criminal proceedings; but, nevertheless being Courts of justice, we would normally follow the fundamental rules for the ascertainment of the truth by giving. the fullest opportunity to the person accused of defending himself and of putting forward his case with as much, if not, more fairness than we would in an ordinary trial before us". This view alto appears to be. supported by Mr. Oswald in his book on Contempt of Court, 3rd Edition, page 17, as also by some observations of Woodroffe, J. of the Calcutta High Court in the case of Tarit Kanti Biswas, Printer and Publisher of Amrita Bazar Patrika and others (21 CWN 1161)." (Sd.) Ajmal Mian, J (Sd.) Muhammad Rafiq Tarar, J (Sd.) Saleem. Akhtar, J (sd.) Manzoor Hussain Sial, J, M.BA./S‑1004/S ??????????????????????????????????????????????????????????????????????????????????? Order accordingly