P L D 1964 (W (PLP)

3. Now, four of these applications to Writ Nos. 325, 327, 328 and 329 relate to the publication of a news item in the issue of these papers on Saturday 18th May 1963, concerning the dramatic arrest of the applicant Mushtaq Husain and his com panion one Muhammad Zaman in what is described as the biggest case of International Gold Smuggling ever detected in which gold weighing half a maund and valued at about Rs. 2 lakhs was seized at the Karachi Airport. The article goes on to explain how and as a result of the coordinated efforts of the Pakistan Customs Intelligence, Her Majesty's Customs and the B. O, A. C., of this case was detected at the Karachi Airport. Quite early In this article there appears the name of the respondent No. 6 in Criminal Miscellaneous Application No. 325/1963 Mr. S. M. Hasnain indicating that he was the purveyor of this news item and the passage reads thus :‑ "The Director of Customs Intelligence Mr. S. M. Hasnain said it was the only case of Gold Smuggling detected with the coordinated efforts of the Airlines and the Customs. The Chief of the B. O. A. C. Security Organization Mr. Buchanan was scheduled to arrive last night in Karachi with some docu ments seized from the house of accused Muhammad Zaman in London. The papers were seized on the instructions of the Director of Customs Intelligence after the arrest was made." The article then goes on to describe the activities of Muhammad Zaman in the U. K. and how Mr. Buchanan the Chief of the Security, B. O. A. C. Eastern Routes selected one of his men to act as a carrier of gold assuming his position as a B. O. A. C. Steward. This was done in consultation with Mr. Hasnain who gave his "blessing" to the operation and cabled back to Mr. Buchanan saying that he fully approved of the plan and would assist the Airlines in smashing the gang. The article concluded thus :‑ "According to the Customs Intelligence, Zaman and Mushtaq were on the surveillance of the Customs men in 1961, during the investigation of a gold smuggling case which was headed by an American Allan Cooper. In that case Zaman and Mushtaq were not arrested as there was not much evidence for the prosecution. After that case Zaman had left Pakistan for London to return with the precious metal. More arrests are likely after going through the documents brought by Mr. Buchanan of the B. O. A. C." The fifth application being Criminal Original Miscellaneous Application No. 326 of 1963 was filed against the Editor, Printer and Publisher of the "Morning News" Karachi in respect of a news item appearing in the issue of that paper of Tuesday, May 21st in which its London Correspondent Mr. Yehia Syed had cabled a message stating that‑ "The Gold Smuggling Racket smashed on Friday by the Customs at the Karachi has received front‑page Press in the London Dailies. "The Times", "Telegraph" and "The Guardian" made the story their second lead while the "Daily Herald" made It the first news on Saturday . . . . . The news eclipsed American astronaut Cooper's orbital flight in T V and radio bulletins".

4. Appearing on behalf of the applicant Mr. Riaz Hashmi submitted that the publication of these items of news in regard to a case against ~is client the applicant which is sub judice clearly amounts to contempt of Court and calls for strong action. He added that in the case of the "DAWN" Newspaper which had gone so far as to publish a photo of the applicant and his com panion Muhammad Zaman at the head of the columns containing the impugned article he had on the very day of the publication namely 18th May 1963 addressed a notice to the Editor of the "DAILY DAWN" reproducing this objectionable article and calling upon him to tender forthwith an unqualified apology and to publish the same in his paper in bold letters on the front page. The Editor was also called upon in this notice to supply the name and particulars of his correspondent, the name of the particular person who had given him the said information and the name and particulars of the person who had obtained the said photographs, together with his statement in writing showing the place where the photo was taken and who had granted him permission to take such a photo. The notice concluded by saying that if its demands were not complied with an application for contempt of Court would be filed against the Editor, at his risk and costs. On 21‑5‑1963 Mr. Abdul Aziz the learned Advocate appearing on behalf of the "DAWN" Newspaper replied to the said notice stating that the report was based on facts which were supplied to their staff correspondent by authentic sources, and denying that in doing so the Editor, Printer and Publisher have committed any contempt of Court. Mr. Hashmi relied upon the two recent decisions of our Supreme Court reported in Attorney‑General of Pakistan v. Abdul Hamid (P L D 1963 S C 170) and Advocate‑General v. Shabir Ahmad (P L D 1963 S C 610) in support of his submission that strong action should be taken against the respondents who, he said, are impervious to warnings and should, therefore, now be taught a lesson.

5. The learned Advocates appearing on behalf of the respon dent newspapers submitted that their clients had done nothing more than publish a story which had been supplied to their reporters by Mr. S. M. Hasnain, Director of Customs Intelligence, Karachi. This conduct on their part had been entirely without malice and as soon as each of these newspapers bad been served with the notice for contempt issued against them by this High Court, they immediately published in the next issues of their paper an unconditional and unqualified apology to this Honour able High Court. Further, on the day fixed for the return of the notice, namely, 17‑2‑1964 the Editor, Printer and Publisher of each of these newspapers filed either affidavits or written state ments in this Court expressing sincere regret for the publication in question and tendering their unconditional and unqualified apologies to this Court. They invited my attention to W. P. No. 125/1963 Captain Qamar Shahzada v. The Oil & Gas Develop ment Corporation and to the order in Miscellaneous Applica tion No. 187 of 1963 dated 1‑10‑1963 wherein with regard to respondents Nos. 1‑4 namely the Editors, Printers and Publishers of the "MORNING NEWS", "DAWN", English, "DAWN" Gujrati, and "JANG" the D. B. of which I was a member had expressed themselves as under :‑ "With regard to respondents 1 to 4 we hold that they are also guilty of contempt of this Court ; but, in view of their prompt apology to this Court an apology wholly unqualified and with no strings attached and also in view of the fact that they lost no time in publishing this apology in their respective newspapers, we are inclined to take a lenient view in regard to them. We, therefore accept their apologies and direct that the notices issued to them be discharged."

6. Mr. Sharifuddin Pirzada appearing on behalf of the respondents in Applications Nos. 325 and 327 further invited my attention to certain mitigating circumstances that exist in this case. The first of these, he argued, was the fact that this parti cular news item had been released and conveyed to the news papers by a High Government Official who though joined as respondent No. 6 in Application No. 325/1963 was mysteriously dropped by the learned Advocate appearing on behalf of the applicant Mr. Riaz Hashmi at the summary hearing of these applications. Mr. Pirzada contended that inasmuch as his client had been invited to print and publish this news item it could not be alleged against them that the contempt, if any, com mitted by them was deliberate. He relied upon the well known case of P. S. Tuljaram Rao v. Sir James Taylor, Governor of Reserve Bank of India and others (A I R 1939 Mad. 257) decided by a Special Bench of three Judges of the Madras High Court. In their judgment this Full Bench remarked as under :‑ "The power to commit for contempt of Court is not to be' lightly used and should be reserved for cases where the con tempt is deliberate and of such a nature that committal is called for. In the present case all that can be said is that the respondents acted without due consideration. They have all expressed their regret to the Court and we think that the matter may be left there. Sufficient has probably been said to prevent a similar situation arising in future." In this reported case the petitioner had proceeded against only one of the several newspapers that had published the offending letter of respondent No. 1 and this discrimination was frowned upon by their Lordships who stated that‑ "We consider that the petitioner who was obviously in posses sion of the full facts was not justified in proceeding against one newspaper alone. What his motives were it is unnecessary to enquire but he was obviously not impartial in his action. In these circumstances, there will be no order for costs." It was pointed out by Mr. Pirzada that this concluding passage in the judgment of the Full Bench has peculiar Application in the present case to the conduct of the applicant and his Advocate in selecting only the "DAWN" Newspaper for serving them with a notice. The learned Advocate further pointed out that an apology in such matters is to be given to the Court and not to the person contemned as is pointed out by Mr. Tek Chand in his Law of Contempt at page 319 and was held by the Vice Chancellor's Court; in the case of Felkin v. Herbert (9 L T R 635). Finally, Mr. Pirzada submitted that the lack of promptness on the part of the applicant in filing these applications in Court in May 1963 and doing nothing thereafter till called upon by this Court in January 1964 to supply copies to the Registry for service upon the respon dents is fatal to the success of these applications.

7. Mr. A. A. Zari appearing on behalf of the Editor, Printer and Publisher of the daily "ANJAM" in Cr. Misc. Application No. 328 of 1963 pointed out that this newspaper had changed hands on 1‑7‑1963 so that when the offending news item appeared in its issue of 18/19‑5‑1963 the present Editor, Printer and Publisher were not on the staff of this paper and the proprietors of this paper, too, were some persons other than the present proprietors. Nevertheless, on receipt of the Contempt Notice from this High Court on 12‑2‑1964 this paper in its issue of 19‑2‑1964 published an unconditional and unqualified apology. Mr. Riaz Hashmi interrupted to say he does not press Cr. Misc. Application No. 328 of 1963.

8. The learned Assistant Advocate‑General appearing on behalf of the State submitted that although the respondent No. 6 in Cr. M. A. No. 325 of 1963 had supplied this news item to the respondent newspapers, yet this was not sufficient to divest them of their responsibility for publishing such an item of news in their papers. He submitted that in the two recent cases before the Supreme Court reported in P L D 1963 S C 170 and P L D 1963 S C 610 Mr. Gardezi in the first case and Mr. Shabir Ahmad in the second case had admitted supplying the published material to the press. Nevertheless, the Editors, Printers and Publishers of the con cerned papers were held guilty of contempt of Court. He, there fore, submitted that severe action should be taken against these newspapers in this matter for persisting in their offences against the Contempt of Courts Act. He concluded by saying that where there is a repetition of such an offence of contempt of Court, mere apologies are not enough and referred me to the remarks of Macleod, C. J. and Crump, J. in the case of the Emperor v. Marmaduke Pickthall, Editor Bombay Chronicle (A I R 1923 Bout. 242) :‑ "Where the publication is due to a repetition of negligence which has been condoned in the past an apology becomes little ~B more than an idle form."

9. I am, in truth, captivated by the interesting arguments urged before me at the Bar in these matters and hence I have set them out in some detail in this judgment. Now, taking first things first, I observe that although the accused in this smuggling case are two in number, yet only one of them namely Mushtaq Husain has come forward with these applications. In the first application for remand submitted by Mr. Kamaluddin the Investi gating Officer of the Directorate of Customs Intelligence and Investigation on 17‑5‑1963 it was mentioned that 18 kilos of gold were seized on the 16th May 1963 at 6 p.m. near the Karachi Civil Airport from the possession of Muhammad Zaman son of Ghulam Husain and that he and his accomplice Mushtaq Husain son of Amir Bux who came with Zaman to take over the smuggled gold were both arrested. In a notice addressed by the Advocate of these two accused to the Editor, "DAILY DAWN" (English) Karachi on 18‑5‑1963 Mr. Riaz Hashmi stated that the publication referred to therein "constituted contempt of Court as it prejudiced the case of Muhammad Zaman which was considered to be pen ding". Yet, the said Muhammad Zaman is not an applicant in these five Criminal Misc. Applications now under consideration. Then, again, I notice that these five applications were presented in this Court on 24‑5‑1963 and that they were admitted to a regular hearing by a Judge of this Court on 27‑5‑1963. For eight months thereafter nothing further appears to have been done in these matters either by the applicant or by his Advocate and the order sheet in these five matters discloses that it was on 20‑1‑1964 that the office of this High Court placed these matters before another Single Bench of this High Court for orders as copies of these Misc. Applications had not been supplied for service on the opponents by the applicant or his Advocate. The order of Faruqui, J. dated 20‑1‑1964 states :‑ "I have heard Mr. Ali Muhammad (Superintendent Criminal Branch). The practice is that copy is supplied. Let it be supplied within ten days." Of course, Mr. Riaz Hashmi, in this connection, has pleaded before me that this delay was due to the Translation Branch of this Court which Branch supplied true translations of the articles in "JANG" and "ANJAM" on 30‑11‑1963. But, even so, II cannot excuse either the applicant or his Advocate for this inordi nate delay of eight months in prosecuting these applications. Such delay would indicate lack of interest or seriousness on their part in persuing these applications.

10. The next feature of these applications that has struck me is that the purveyor or supplier of this Item of news to these news papers namely, Mr. S. M. Hasnain, Director of Customs Intelli gence, Karachi, who, according to the statement made in Court before me by the learned Assistant Advocate‑General, Mr. Haleem, had, in fact, supplied this news item to these newspapers and who was cited as respondent No. 6 in the very first of these Misc. Applications has been dropped by the learned Advocate appearing on behalf of the applicant. This Advocate has at the summary hearing of these matters dropped three respondents from Misc. Application No. 325/1963, two from Misc. Application No. 326/ 1963 and one from each of the remaining applications. Now, Mr. S. M. Hasnain was obviously considered originally by the learned Advocate appearing on behalf of the applicant as primarily responsible for the publication of this news item and, therefore, he was joined as a party in the very first of these five Misc. Applications. The conduct of this learned Advocate in dropping this respondent smacks of discrimination just as does his conduct in selecting the "DAWN" Newspaper alone from the others for serving them with a legal notice. Such discrimination In contempt) matters has been frowned upon by Courts as is apparent from a perusal of the concluding paragraph in the judgment of the Full Bench of the Madras High Court in A I R 1939 Madras 257) reproduced in para. 6 above. In this reported case, their Lordships of the Full Bench of the Madras High Court refused to award costs to the petitioner in that matter as, "he was obviously note impartial in his action".

11. The next circumstance for consideration in these matters is the apparent promptitude with which these newspapers published apologies in the issues of their papers after receiving notice for contempt served upon them by this Court. Besides, on the day fixed for the return of these notices to this Court namely, 17‑2‑1964 the respondent newspapers through their Editors, Printers and Publishers filed either affidavits or written statements in this Court expressing their sincere regret for the publication in question and tendering their unconditional and unqualified apologies to this Court. That such apologies in matters such as these are due to the Court and not to the person who is the victim of the article in question is well settled. If authority were needed for this proposition the same is to be found in the Law of Contempt of Court and of Legislature by Tek Chand and H. L. Sarin at page 319 of their Second Edition and also in the judgment of the Court of V. C. Kindersley in the case of Felkin v. Herbert. It is no doubt true that such apologies cannot serve to completely wash out the guilt of the respondent newspapers. But, they certainly can be considered as a mitigating circumstance. I should also emphasis here in this judgment that the fact that this news item was supplied to the respondent newspapers by a responsible Government Official cannot also serve as a ground of excuse exempting them from liability for such publication. Nevertheless, such a circumstance coupled with complete absence of any malice on the part of these respondents can also be considered in mitigation of punishment.

12. In conclusion, then, I hold that the respondents in Criminal Misc. Applications Nos. 325, 326, 327 and 329 of 1963 are guilty of contempt of Court. But, for the reasons mentioned above, I accept their apologies and am not inclined to impose any punishment upon them. In Criminal Misc. Application No. 328 of 1963 it is admitted that the present respondents were no h associated with this newspaper in May 1963 and, therefore, the notices issued to them are hereby discharged. Nevertheless, I deem it necessary to add here that the three newspapers, namely, "DAWN" (English), "MORNING NEWS" and "JANG" will each deposit a sum of Rs. 100 in this High Court within a week from the announcement of this judgment towards the costs of the learned Advocate of the applicant. On doing so, the notices against them will stand discharged. The Assistant Advocate. General does not claim his costs. K. B. A. Order accordingly.