1999SCMR2690 (PLP)

MAULANA MUHAMMAD TAQI USMANI, J.

This appeal is directed against the judgment of the Federal Shariat Court, dated 2-11-1992 whereby the Shariat petition of the appellant was dismissed. The appellant had tiled a petition under Article 203(d), of the Constitution before the Federal Shariat Court to challenge the sections 5, 6, 7 and 8 of the Law Reports Act 1875 read with Law Report (Amendments) Act, 1989 and Act 2 of 1990, (hereinafter referred to in this judgment as "the Act"), praying that these sections should be declared repugnant to the injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (SAW). The learned Federal Shariat Court dismissed this petition vide its judgment, dated 2-11-1992, hence this appeal under Article 203-F. The sections challenged by the Appellant are reproduced hereunder:

"(5) Certification by the Courts, etc.

A Court or Tribunal deciding a matter shall at the end of the judgment or order, as the case may be certify in the form specified in the Schedule that it is based upon or enunciates a principle of law or decides a question of law which is of first impression or distinguishes, over rules, reverses or explains a previous decision. Explanation.

For the purpose of this Act, the expression "Court or Tribunal" includes the Federal Shariat Court, a Service Tribunal, the ; Income Tax Appellate Tribunal and the National Industrial Relations Commission. (6) Restriction on the publication of judgments and orders.

No judgment or order of a Court or tribunal shall be published or printed by any publisher, printer or any other person, unless it is approved for reporting by a Court or Tribunal or is certified under section 5. (7) Penalty.

(1) Whosoever contravenes the provisions of section 6 shall be punished with fine which may extend to one lac rupees or in default of payment of fine with simple imprisonment for a term which may extend to six months. (2) All copies of a publication in respect of which a person is convicted under subsection (1) shall stand fortified to the Provincial Government. (8) Jurisdiction to try offences.

No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by the Presiding Officer of the Court or Tribunal by which the judgment or order in respect of which the offence was committed was given or made, or by an officer generally or specially empowered by him in this behalf and no Court other than a Court of Sessions shall try any such offence." Unfortunately when the appeal fixed for hearing in this Court we were told that the appellant has expired. The learned Deputy Attorney-General appearing on behalf of the Federation of Pakistan supported the judgment of the Federal Shariat Court. Since no person wits available to argue for the Appellant we ourselves examined this appeal in the light of the points raised by the Appellant in his memo. The main grievance of the appellant was that the impugned sections of the Act restrict publication of the judgments of the Courts, while all the judgments, having the status of law, should be a public property and no restriction should be imposed on making them public because every citizen of an Islamic State has a right to know the contents and implications of a judgment delivered by a Court of law. In order to substantiate his stand point the appellant relied upon the following verses of the Holy Qur'an:

The learned Federal Shariat Court held that these verses are not relevant to the propositions advanced by the appellant. The appellant in his memo of appeal has complained against the judgment of the Federal Shariat Court that they did not give any reason for the irrelevancy of the aforesaid verses with the question in issue. The complaint seems to be misconceived because while citing these verses the appellant should have given his reasons for relying on these verses and he had to explain how they are relevant to the principle he wanted to establish. We have paid due consideration to these holy verse. All of them mention that Allah does not destroy any people unless they are warned in advance, meaning thereby that nobody is punished by Allah unless he has been informed in unambiguous terms what he is required to do in this world. What can reasonably be inferred from these verses is that nobody should be punished for an act unless he has been informed that such an act is prohibited for him In the light of these verses the State is duty-bound while promulgating a law to make it public so that every body knows its implications. The impugned sections of the Act do not negate this right of the people. Instead they allow publication of any judgment of the Court which enunciates a principle of law or decides a question of law which is of first impression or distinguishes, overrules, reverses or explains a previous decision. The judgments, of the Courts which have public importance for the purpose of correct appreciation of law are fully covered j, under section 5 of the Act. What remains outside the domain of section 5 is a judgment which neither enunciates a principles of law nor decides a question of law which is of first impression or establishes a new principle by explaining or reversing a previous decision. If the judgments of this kind are not published no principle of law enunciated by the Courts would remain unknown to the public. It is obvious that the Courts decide hundreds of cases on the basis of facts alone whereby no fresh finding about a law is given. The publication of all these judgments add to nothing but increasing the number of reported judgments' without any meaningful purpose which not only involves unnecessary expenses but also makes it difficult to benefit from the material judgments which establish a principle of law. Moreover, law does not prohibit a person to know about any judgment delivered by the Court because everybody can acquire copies of every judgment from the Court without any restriction. What is restricted through impugned law is to publish such judgments which have no bearing on the correct understanding, of the law enforced. Therefore, the impugned law cannot be held violative of the, verses cited in the Appeal. The appellant has referred to the case of B.Z. Kaikaus v. President of Pakistan reported in PLD 1980 SC at pp. 160-174 where this Court has observed as under: -- "It cannot be denied as the above precedents show that enforcement of laws--(and we may say so even under Islamic)--is the function of the State which firstly makes known the relevant law to the people by publishing or publicizing it so that they may regulate their lives, dealings and conduct accordingly, and then takes legal steps or actions for its violations." The argument of the appellant is that all the judgments delivered by the Courts, specially by the Superior Courts, are binding on all subordinate Courts and have the status of law. Therefore, according to the authority cited above the State is duty-bound to publicize them and no law can restrict this power of the State. We have observed earlier that no restriction can be imposed on the publication of those judgments which lay down a law or give a new interpretation to a particular law or decide any legal question, and the sections of the Act challenged by the Appellant do not restrict the publication of such judgments. Therefore, these provisions are in no way conflicting with the observation given by this Court in the case of B-2. Kaikaus v. President of Pakistan. There is another aspect of the publication of judgments which the appellant has failed to appreciate. Certain cases involve the private lives of the litigants. The matters relating thereto are brought before the Court only for administration of justice and it is neither necessary nor desirable that these matters are publicised without a genuine need. If the judgments given in such cases do not give a fresh finding about a legal question of public importance, it is in the interest of nobody to publish them, rather they amount to publicising matters of private lives of individuals without a valid cause. The appellant has also referred to a Hadith reported by Imam Bukhari in his Sahih, Ch. 67 No. 87 wherein it is reported that a delegation of tribe of Rabia came to the Holy Prophet (SAW) and asked him about the basic teachings of Islam that may lead them to Jannah. The Holy Prophet (SAW) told them about the four obligations of Islam and explained to them four prohibitions, then at the end the Holy Prophet (SAW) said:- ("Remember them and inform about them the people who are behind you"). The appellant has also referred to the well-known Hadith whereby the sermon of the Holy Prophet (SAW) delivered during his last Hajj is reported. The relevant sentence is the following:- ("Those who are present should convey (what I said) to those absent").(Sahih Al Bukhari, Vol.5, Pp-131-132, Ch.79, Hadith No.104-105). The purpose of the appellant, perhaps, is that the Holy Prophet (SAW) himself ordered his followers to make public whatever he says or orders. But one cannot overlook the fact that almost all the sayings of Holy Prophet (SAW) were in the form of a divine law prescribed for the whole Ummah. These must have to be publicised. The same principle may be applied to the statutes, enacted laws or judge-made laws but the principle cannot be extended to those judgments which are based on mere appreciation of facts and do not provide a fresh legal dictum. The Holy Prophet (SAW) himself decided a large number of cases but one cannot say that the details of all his judgments were reported. The companions of the Holy Prophet (SAW) have reported his those judgments only which enunciate a law or any principle of law. For the reasons given above this appeal is misconceived and is hereby dismissed. WAJIHUDDIN AHMED, J.

While respectfully agreeing with the proposed judgment of my learned brother, Mr. Justice Maulana Muhammad Taqi Usmani, I would like to add a few words on the negative side of the appellant's case. It seems to me that the error, if any, lies not in lack of publication of judgments of the superior Courts and Tribunals but rather in over publication thereof. The situation, therefore, calls for attention at the level of Judges themselves, who should be careful enough to approve only such judgments for reporting as qualify for the purpose under the law. Unnecessary publication of judgments brings, no laurels to the author Judges but, often enough, become counter-productive and exposes negative rather than positive aspects of a report. Care and caution in this behalf, accordingly, is the need and the requirement. Another aspect, which warrants to be touched upon, consists of, at times, irrelevant annotations of the ratio decidendi by the editors of a report. This correspondingly involves the report carrying headnotes or placita, displaying observations, which are nothing more than repetition of a beaten track. No doubt unnecessary and over publication of judgments has multiplied the task of editorial staff connected with the law reports but that should not be an excuse for an otherwise faulty or even negligent treatment of a very sensitive job. Hopefully the foregoing aspects would also be kept in mind while implementing the law, which we have found to be in consonance with the injunctions of Islam. M.B.A/A-153/S Order accordingly.