h1

P L D 1998 SC 823

SYED MASROOR AHSAN AND OTHERS

V/S

ARDESHIR COWASJEE AND OTHERS

Frame (2)

(a) Constitution of Pakistan (1973) Art. 204
At this juncture, it will not be out of context to observe that in the case of the State v. Khalid Masood, Regional Director, Pakistan Narcotics Control Board, Lahore and 3 others (PLD 1966 SC 42), in which I had the occasion to dilate upon the scope of Article 204 of the Constitution in juxtaposition with the provisions of the ACt and made the following observations :-

“A plain reading of the above Article indicates that 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 brings 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 subeject-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 Article 176 and 123 of the late Constitutions of the Islamic Republic of Pakistan of 1956 and 1962, respectively.

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 Articlerealtes to procedural matters or matters which have not been provided for therein. Though the Preamble to the Contempt of Court 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) and (b) of section 2 of the Act and of the definition of the expression ‘Contempt of Court’ provided for in section 3 thereof. In the case in had, 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.”[p. 878, 879]B

(b) Constitution of Pakistan(1973), Article 66, 127.

The above case does not touch upon the question involved. There cannot be any doubt that a speech made by a Member of the Parliament on the floor cannot be subject-matter of a suit for the recovery of damages on account of alleged defamation nor it can furnish the basis for initiating a criminal prosecution for defamation.

In India, Article 105 and Article 194 will be a complete answer and in Pakistan, Article 66 and Article 127 of the Constitution will be complete defence to such an action.[p. 1011, 1012]V.
(c) Constitution of Pakistan (1973) Arts. 66 & 127

If above Article 204 of the Constitution would not have been incorporated, no contempt proceedings could have been initiated on the basis of a speech made by a Member on the floor of the House under the Contempt of Courts Act as Article 66 of the Constitution would have been a complete answer to such a proceedings. I have already pointed out hereinabove that a member of the public cannot bring any action for recovery of damages for defamatory statement against a member of the Parliament in respect of his speech made by him on the floor of the House nor he can initiate criminal proceeding under section 500, Penal Code for defamation because of Article 66 of the Constitution which is subject to Constitution but not subject to the law provided under the statutes.[p. 1018] AA
(d) Constitution of Pakistan (1973) Art. 68

It may also be pointed out that Article 68 of the Constitution provides that no discussion shall take place in Majlis-e-Shoora (Parliament) with respect tot he conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.[p. 881] G
(d) Constitution of Pakistan (1973) Arts. 66, 127 & 204

If Article 204 in the Constitution would not have been provided and the action would have been initiated under a general law, one can urge that Article 66 and Article 127 of the Constitution immune the Members of the Parliament and the Provincial Assemblies, respectively, from being sued in respect of anything said by them on the floor of the House. The above plea is not available as Article 66 itself provides that it is subject to the Constitution, which includes Article 204.[p. 1012]W
(e) Constitution of Pakistan (1973) Art. 204
This Article does not provide what is contempt and, therefore, in India reliance would have to be placed on the Contempt of Courts Act, 1971; and whereas in Pakistan, Article 204 of the Constitution itself provides that the Courts which include the Supreme Court and the High Courts shall have the power to punish any person who commits any of the acts specified in sub-clauses (a), (b),(c) and (d). Sub-clause (b) empowers the Court to punish a person who scandalises the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt. In my opinion, in view of the above different language employed in the aforesaid two corresponding Articles in Indian and Pakistani Constitutions, the judgments of the Indian jurisdiction cannot be invoked in aid for interpreting Articles 66 and 204 of the Constitution.[p. 1013, 1014]X

(f) Constitution of Pakistan (1973) Arts. 68, 66, 2A, & 204
However, I may again emphasise that for proper functioning of the Parliament, its Members should have freedom of speech uninterfered with by an outside institution but, at the same time, it cannot be overlooked that the Judges of the superior Courts cannot discharge their Constitutional onerous duties unless they are free from all sorts of outside pressure. This was the reason that the Constitution-makers thought it fit to emphasise as to the independence of Judiciary in the Preamble of the Constitution which has now become part of the Constitution by virtue of Article 2A thereof. In Article 66 they provided the right of freedom of speech and immunity of being sued in respect of anything said on the floor of the Parliament subject to the Constitution instead of providing non obstinate clause by suing the words “notwithstanding anything contained in the Constitution” or by omitting the words “Subject to this Constitution”. They also incorporated Article 68 for prohibiting any discussion in the Majlis-e-Shoora with respect to the conduct of Judge of the Supreme Court or a High Court in the discharge of his duties. They further provided Article 204 empowering the Supreme Court and the High Courts to initiate contempt proceedings. Clause (c) of sub-rule (2) of Rules 248 of the National Assembly Rules also prohibits any discussion about the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. In my humble view, the Members of the Parliament under Article 68 have the right to discuss a matter relating to Judiciary which does not fall within the ambit of contempt of Court as defined by Article 204 of the Constitution and does not violate any of the Constitutional provision or the rules framed thereunder. If above Article 204 of the Constitution would not have been incorporated, no contempt proceedings could have been initiated on the basis of a speech made by a Member on the floor of the House under the Contempt of Courts Act as Article 66 of the Constitution would have been a complete answer to such a proceeding.[p. 1018]Z

All the three organs have to act within the bounds specified in the Constitution, any transgression or encroachment by one organ over the sphere of the other will result into chaos and uncertainty. It is, therefore, paramount that an equilibrium is to be maintained inter se between the three organs of the State within the limits delineated by the Constitution.
[p. 1018] BB
It may be observed that one of the settled principles of construction of provisions of a Constitution/statute is that they are to be construed in a manner which may give effect to each and every word of the same and which may harmonize the working of the same and which may achieve the object under-lined in the relevant provisions. If I were to accept the contentions of Messrs Ch. Muhammad Farooq, S. Sharifudding Pirzada and S.M. Zafar, the words “Subject to the Constitution” appearing in clause (1) o f Article 66 of the Constitution will be rendered redundant/surplusage which will run counter to the well-settled principle of interpretation of a Constitutional provision and also against the intention of the Framers of the Constitution as the above words were not used in the corresponding provisions of late Constitution of 1962, namely, Article 111. The above words were deliberately used by the Framers of the Constitution. This will also run counter to the independence of Judiciary which is one of the main feature/hallmark of our Constitution.[p. 1018, 1019] CC

(g) Constitution of Pakistan (1973) Art. 66 & 204

Mr.Muhammad Ikram Chaudhry has also produced pages 150 and 151 with the caption “Mechanisms of Parliamentary Democracy” quoted hereinabove in para. 19(ii), in which the remarks of the Canadian Judge O’Conner in Rex v. Bunting, 7 Ontario Reports (1884-5), p.563 has been referred to the following effect:-

“I desire it to be understood, however’, says the learned Judge, ‘that I do not hold that a member of Parliament is not amenable to the ordinary Courts for anything he my say or do in Parliament. I merely say he is not so amenable for anything he may say or do within the scope of his duties in the course of Parliamentary business, for in such matters he is privileged and protected by lex et consuetudo parliament.”

The above USA and Canadian casses seem to be in the line with what I am inclined to hold.[p. 1020] EE
(h) Constitution of Pakistan (1973) Art. 68
The parties were at issue as to the time of the above expunction order passed by the Deputy Speaker. According to the learned Attoney-General as well as the learned counsel for respondents Nos.3, 4 and 5, the Deputy Speaker passed the above order then and there.
The wording of the afore-quoted portion of the minutes of the proceedings and also the video-recording indicate that the expunction order was made on 29-10-1997 before the House was adjourned to meet held at 8-25 p.m. and, therefore, by the time all the speakers finished their speeches, it must have been quite late. Additionally the above order does not specially or pinpoint which portions of the speeches have to be expunged and, thus the above order was not in terms of Rules 281 and 282 of the National Assembly Rules. Mr. Muhammad Ikram Chaudhry has pointed out that in some of the newspapers of 30-10-1997, copies of which are annexed with the petition, the unexpunged speeches of aforementioned respondents Nos.3, 4 and 5 were published. He, therefore, contended that the Deputy Speaker had not directed the news reporters not to publish the expunged remarks. I have gone through the National Assembly Rules and I find that there is no rule providing for prohibition of publication of the expunged remarks. Rule 281 of the National Assembly Rules empowers the Speaker to expunge the words used in debate “which in his opinion” are defamatory, indecent, uparimentary or undignified in his discretion either during the debate or subsequently. Whereas Rule 282 provides that the portion of the proceedings of the Assembly expunged under Rule 281 shall be marked by asterisks and explanatory footnote shall be inserted into the proceedings are follows:-

“Expunged as ordered by the Speaker.”

Mr. Shahid Orakzai, who is respondent No.10 in Criminal Original Petition No.29 of 1997, has highlighted that the words “defamatory”, “indecent”, “undignified” have their roots in the various Articles of the Constitution. In support of his above submission he has referred to Articles 19, 14 and 63, in which the words “indecent”, “undignified” and “defamatory” respectively have been used. He further pointed out that object of Rule 282 of the National Assembly Rules is to maintain the record of the minutes of the proceedings of the Assembly and not to destroy the same keeping in view that the expunged portions of the debate are not to be erased but they are to be kept intact with the mark by asterisks that the remarks “Expunged as ordered by the Speaker”.
Whereas Mr.Muhammad Ikram Chaudhry, the petitioner in above Criminal Original Petition No.29 of 1997, urged that as this Court is competent event to took into confidential or secret documents, it can look into the expunged portions in the minutes of the meeting as well as in the video-cassette for deciding, whether contempt of Court was committed or not.[p. 1020]FF
(i) Constitution of Pakistan (1973) Art. 68

The effect of the expunction order of the Deputy Speaker is that the expunged portions in law stand erased/deleted provided the same is in terms of Rules 281 and 282 and of the National Assembly Rules highlighted hereinabove in para. 42. It is unfortunate that the press reported unexpunged speeches and the same were also reflected in the video-cassette of the Mational Assembly probably for the reason that the expunged portions were not identified.[p. 1023] II
(j) Constitution of Pakistan (1973) Art. 68

In the present case, from the minutes of the proceedings, it seems that the Deputy Speaker who was presiding the session of the Assembly did not adopt the procedure provided in the National Assembly Rules nor prevented the Members concerned from making speeches containing derogatory remarks against the then Chief Justice of this Court, which was in contravention of Article 68 of the Constitution.[p. 1023] JJ

Rules of Procedure and Conduct of Business in the National Assembly, 1992—

It may be observed that Rule 266 of the National Assembly Rules empowers the Speaker to preserve order and it has also empowered him to enforce his decision. It has also been provided that for the purpose of enforcing the order of the Speaker, there shall be a Sergeant-at-Arms. Whereas Rule 267 thereof provides that the Speaker may direct any Member whose conduct is, in his opinion, grossly disorderly to withdraw immediately from the Assembly and any Member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s sitting. It may further be observed that sub-rule(1) of Rule 268 lays down that the Speaker may, if he deems necessary, name a Member who disregards the authority of the Speaker or abuses these rules by consistently and wilfully obstructing the business of the Assembly; whereas sub-rule (2) thereof provides that if a Member is to named is to named by the Speaker, he shall forthwith put the question that the Member (naming him) be suspended from the service of the Assembly for a period not exceeding the remainder of the session. It may be pointed out that proviso to the above sub-rule lays down that the Assembly may, at any time, on motion made resolve that such suspension be terminated. It may further be stated that sub-rule(3) of the above rule provides that a Member suspended under this rule shall forthwith withdraw from the precincts of the Assembly.

It may also be pointed out that Rule 269 empowers the Speaker that in the case of a grave disorder arising in the Assembly, the Speaker may, if he thinks it necessary to do so, suspend any sitting for a time to be specified by him or adjourn the Assembly.[p. 1023, 1024]KK
(k) Constitution of Pakistan (1973) Arts. 204, 66 & 68
This was not done; consequently, aforesaid respondents Nos.3, 4 and 5 were able to speak in the manner which was not expected of them. The question therefore arises, as to whether the alleged contempt of Court, if it was committed by aforementioned respondents by uttering derogatory remarks, stood erased because of the above expunction order passed by the Deputy Speaker at the time of adjourning the session for the following day, if we were to overlook the factum that the expunged portions were not identified. One view can be that since that alleged contempt, if any, was already committed on the floor of the House which was not protected under Article 66 of the Constitution, the expunction order would not undo the same but it would disentitle the press and the electronic media from reporting the expunged portions of the speeches. If they had done so, they might be liable the breach of the privilege of the Assembly. The other view can be that since the effect of the expunction is that the expugned portions stood erased/deleted, the same cannot form the basis for cotnempt proceedings. If I were to take the latter view, it would not be in consonance with Article 68 of the Constitution for the reason that some Members of the Assembly may abuse the Courts and the Judges through their uninterrupted/unstopped speeches which will be heard by the remaining Members of the Assembly and also other persons present in the galleries which include Press, electronic media, Pakistani and foreign nationals and then at the end of the session to order the expunction of the objected portions.[p. 1024, 1025] LL

(l) Constitution of Pakistan (1973) Arts. 204, 66 & 68

I would, therefore, opt to prefer the above first view. However, I may observe that while considering the question, whether the contempt has been committed or not, and if is committed, what should be the proper order, the Court will have to take into consideration that the above interlocutory order of this Court to some extent suspending the 14the Amendment of the Constitution which was passed by the Parliament and which was for the benefit of the public at large with the object to eliminate horse-trading in the Assemblies, was unprecedented in the judicial history of the world. Mr.Muhammad Ikram Chaudhry, the petitioner in Criminal Original Petition No.29 of 1997, had candidly conceded that he was unable to lay his hands on any authority of any Court of the world indicating that such order could have been passed. The above order was also unusual in the sense that the petition was filed by a non-member of the Assembly and the order was passed without hearing the learned Attorney-General and the learned counsel for the Federation, Mr.S. Sharifudding Pirzada, which is evident form the Court diary dated 29-10-1997.[p. 1025] MM

(m) Constitution of Pakistan (1973) Art. 204

I have gone through the impugned statements. In my opinion keeping in view the situation obtaining at the relevant time and the factum that Muhammad Akram Shaikh was the Chairman of the Privilege Committee of the Pakistan Bar Council besides being a Senior Advocate of this Court, his impugned statements cannot be said to have been made in account of mala fides or with malice, apparently they were made in good faith with the object to bring about improvement in the working of the superior Courts. In this view of the matter, the substance of charge served upon Muhammad Akram Shaikh is not sustainable. The above substance of charge and show-cause notice are recalled.[p. 1082] QQ

(n) Constitution of Pakistan (1973) Art. 204

In Criminal Original Petition No. 16 of 1995 Mr.Habibul Wahhab Alkeriri, who is the Editor and Publisher of Urdu newspaper “Nida-e-Haq” Rawalpindi, was first served with a show-cause notice and them he was conveyed the substance of the charge pursuant to an order dated 3-7-1995 quoted hereinabove in para. 499(iv), in respect of his editorial of 7-5-1995 under the caption wherein he criticised the appointment of Mr.Justice Sajjad Ali Shah as the Chief Justice of Pakistan on the ground that he was not the senior most Judge. In the issue of 13-3-1995, he published the Code of Conduct for the Judges of the Supreme Court and the High Courts and also wrote an editorial under the caption the relevant portion of which has already been reproduced hereinabove in para. 49(iv). He also published a news item on 9-4-1995 stating therein, that on account of the lack of confidence in the Judiciary, the integrity/safety of the country was in danger. It was suggested by him that the then Chief Justice of Pakistan, Mr. Justice Sajjad Ali Shah, for the sake of respect of the Judiciary, should resign voluntarily. In referred to earlier in the above para. 49(iv) and, therefore, need not be repeated. He has denied the factum of having committed any contempt. His plea is that as an Advocate he was under obligation in view of above Rule 165 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, and also as a journalist to agitate the questions referred to in the above editorials in public interest, which he did in good faith without any malice.

Ch. Muhammad Farooq, learned Attorney-General after reading the impunged editorials, submitted that the items covered are the same which were agitating in the mind of the public at large but the language used in not temperate. Mr. Habibul Wahhab Alkeiri who appeared in person urged that he could not have been an on-looker of the destruction of the institution of Judiciary and that what he had written in the above editorials was the reflection what the felt honestly.

I may observe that there cannot be any doubt as to the bona fides or Mr.Habibul Wahhab Alkheiri. He is an old guard who has been fighting for the supremacy of law, inasmuch as, he initiated proceedings in 1975 in the Lahore High Court against Sheikh Shaukat Ali, a former Judge of the erstwhile High Court of West Pakistan for contempt of the Court, the judgment of which is reported in PLD 1975 Lahore 373 (supra). Again in 1978 he filed another contempt proceedings against Mr. Wali Khan, the judgment of which is reported in PLD 1978 SC (supra). Recently, he was the petitioner in a Constitutional petition which culminated in the judgment known as the Judges’ case (supra) already discussed and referred to hereinabove.

In defence Mr. Habibul Wahhab Alkheiri appeared in person. He highlighted the Islamic concept of Justice and Toba. He also referred to a number of judgments of Pakistani jurisdiction including the cases of Begum Zaibun Nisa Hamidullah v. Pakistan through the Secretary, Ministry of Interior (PLD 1958 SC 426), Ms.Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416, Suleman Habibullah v. The Editor, Printer, Publisher, Reporter (Staff) dialy Jang, Karachi. (PLD 1995 Karachi 1), Ch. Akbar Ali v. Secretary, Ministry of Defence (1991 SCMR 2114), Government of N.W.F.P. v. I.A. Sharwani (PLD 1997 SC 426). He has also referred to a number of Suras from the Holy Qur’an referred to in para.22 hereinabove. His submission was that the language which he has used in the above editorials was not on account of any malice or bad faith, but it was his sincere cries on seeing the deplorable condition of the Judiciary then obtaining. Though intemperate language is not covered by Exceptions (i) and (ii) to section 3 of Act, but the latest trend obtaining in the Western countries including England is that no criticism of a Judment however vigorous can amount to contempt of Court, provided it keeps within the limits of reasonable courtesy and good faith. Whereas in the U.S.A. the view obtaining is that the vehenence ?????? of the language used in no longer alone the measure of power to punish for contempt, but the deciding factor is whether it constitutes imminent, not merely likely, threat to the administration of justice and that the danger must not be remote or even probable, it must immediately imperil.

Keeping in view the well-settled principle that the Court jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as substantial interference with the due course of justice and keeping in view the factum that Mr. Habibul Wahhab Alkeiri’s bona fide cannot be doubted, in may view it is not a fit case where this Court should press into service the contempt jurisdiction. It must follow that the substance of the charge and the show cause notice are to be recalled. I order accordingly.[p. 1082] RR
(o) Constitution of Pakistan (1973) Art. 204
Mr. K.M.A. Samdani, learned Senior Advocate, appearing for the respondent has vehemently contended that the editorial in question is a fair comment made in good faith as to the working of the Court and its decision and, therefore, is covered by Exceptions ( I ) and ( ii) to section 3 of the Act. As regards the criticism directed against me, his submission was that I had already decided not to take action, as the same was brought to my notice but no action was initiated by supplying a copy of the above issue. It will suffice to observe that as regards the criticism directed against my person I have no grievance. I am fully satisfied that I rendered the above judgment according to my conscience. However, it was not proper on the part of a counsel of his standing to use intemperate language about this Court. We were appalled when Mr.Samdani instead of expressing remorse or repentance submitted that in case this Court was of the view that his client had committed contempt, he should be punished. We would not be carried away with the above unusual and provocative stand. We take lenient view in the matter. However, we would observe that in case Dr. Abdul Basit would repeat the above intemperate language in future, appropriate action would be taken against him in accordance with law. With the above warning the show-cause notice is discharged.[p. 1084]SS

Criminal Original Petition No. 36 of 1995 has also been initiated against Dr.Abdul Basit by this Court in exercise of suo motu power in respect of his editorials published in the legal journal under the title “Legal Opinion” of June, 1994 and September, 1994, Vols. II and III respectively, of which respondent No.1 Dr. Abdul Basit was the Editor and respondent No.2 Abdul Majid Rifaee was the Printer. The portion objected to has been reproduced by me in para 49(xi). In the above editorials he had criticised the appointment of Mr.Justice Sajjad Ali Shah as the Chief Justice of Pakistan, his working style in the Court including the order which he passed directing that every case should be placed before him before it was assigned to a learned Judge and the contempt proceedings initiated by him against Mr.Lakani, Advocate, the then sitting President of the Karachi Bar Association. He also criticised the judgment rendered in Sabir Shah’s case relating to defection by two M.P.As. of the N.W.F.P. Assembly. He also suggested that Mr.Justice Sajjad Ali Shah should step down in order to enable Mr.Justice Saad Saood Jan, the senior most Judge, to take over as the Chief Justice.

In the response to the show-cause notice he has filed written reply, which has been referred to hereinabove in para. 49(xi), wherein he raised certain legal pleas and denied the factum of having committed any contempt. It has been stated that he has not done anything wrong.

Ch.Muhammad Farooq, learned Attorney-General who appeared on Court notice, after going through the objected editorials submitted that the subject-matters of the same are similar to that of the aforesaid other contempt proceedings against Mr. Ardeshir Cowasjee, Mr.Muhammad Akram Shaikh, Advocate, and Mr. Habibul Wahhab Alkheiri, Advocate, but at some places the language used by Dr.Basit is not temperate.
Mr.Muhammad Akram Shaikh, Advocate, who as appeared for Dr.Abdu Basit has pointed out that the new trend in the world is to promote openness and transparency inter alia in working of the Judiciary. His further submission was that the above Article/editorials are to be read as whole in order form an opinion, as to whether any contempt has been committed. He highlighted that one thing is common throughout the word in respect of contempt of Court jurisdiction irrespective of its source, whether under the common law, or the statutory law, or under Shariah, that the words spoken or written should not be founded on malice or bad faith. His further submission was that the editorials of the above publications do not smack of malice or bad faith. According to him, in the above editorials the method of appointment of the them Chief Justice of Pakistan and of some Judges and also the then working of the Court have been criticised without attributing bad faith or malice to the then leaned Chief Justice of Pakistan and of some Judges and also the then working of the Court have been criticised without attributing bad faith or malice to the then leaned Chief Justice or to the Court.

I have gone through the impugned editorials. Though I am of the view that at some places Dr. Abdul Basit has used intemperate language, which was not expected from a lawyer of his standing, but after reading the editorials as a whole, I am inclined to hold that it is not a fit case where the Court should invoke its above extraordinary jurisdiction which is to be exercised rarely in compelling circumstances. I would, therefore, order the discharge of the notice.[p. 1085]TT
(p) Constitution of Pakistan (1973) Art. 204

Criminal Original Petition No. 15 of 1995 has been initiated suo motu against Mian Muhammad Nawaz Sharif in respect of his alleged statement as the then Opposition Leader, which appeared in Urdu Daily newspaper ‘Pakistan”, Lahoree dated 9-10-1994, relevant portion of which has been quoted hereinabove in para.49(iii), where in the criticised the working of the then Government headed by Mohtarma Benazir Bhutto. He also criticised the appointments of certain Judges not on merits but on political considerations. He termed them is “Jialey Judges”. He also allegedly stated that the nation would not accept the decisions of such Judges. He also allegedly stated that:

It appears that the cognizance of the above matter was taken as far back as February, 1995 but no further action seems to have taken. It may be observed that Mian Muhammad Nawaz Sharif had used the aforesaid few words which may come within the compass of intemperate language, but the theme of the above alleged statement was that the Judges were appointed in the superior Courts not on merits but on political considerations. The above case also falls within the category of the contempt cases which have been initiated against Ardeshir Cowasjee, Muhammad Akram Sahikh, Habibul Wahhab Alkeiri and Dr.Abdul Basit. Since in the aforesaid cases I have ordered that no further action is warranted, in the case in hand also I order that no further action is required to be taken.[p. 1085] UU
(q) Constitution of Pakistan (1973) Art. 204

Constitutional Petition No. 27 of 1997 has been filed by Syed Iqbal Haider under Article 204 of the Cosntitution read with section 3 of the Act against Federation of Pakistan and Mian Muhammad Nawaz Sharif, Prime Minister as respondents Nos.1 and 2 respectively, with the prayer that respondent No.2 be punished for commintting contempt of Court under the above Constitutional and lega provisions, in respect of his contemptuous act of not accepting the recommendations of the then Hon’ble Chief Justice of this Court for the elevation of five Judges to this Court. The above case has been referred to in detail hereinabove in para. 49(xvii). Nobody has appeared on behalf of the petitioner in the above petition.

In my view, since the five Judges were elevated to this Court on 31-10-1997 as per recommendations of the then Hon’ble Chief Justice by the then President on the advice of respondent No.2 this petition has become infructuous, particularly keeping in view that it is doubtful, whether a contempt petition would lie on the ground that the Prime Minister of Pakistan had not advised the President for the appointment of certain Judges on the recommendations of the Chief Justice of Pakistan within certain period. In this view of the matter, the above petition is dismissed as having become infructuous.[p.1086]VV
(r) Constitution of Pakistan (1973) Art. 204

Since the respondent has denied the correctness of the statements allegedly made by him and has averred in his written statement that he has even asked his Advocate to take action against the concerned newspapers, and as he has submitted an unconditional apology at the earliest opportunity, the same is accepted and the show-cause notice is discharged.[p. 1087] WW

(s) Constitution of Pakistan (1973) Art. 204
58(I) Criminal Original Petition No.21 of 1996:

This is a petition under Rule 1 of Order XXVII of the Rules read with sections 3 and 4 of the Act filed by Ch. Muhammad Farooq in the capacity of a Senior Advocate against Raja Zulqarnain, an Advocate of Lahore, in respect of news item appeared in the English Daily newspaper “The News”, Lahore on 10-7-1996 under the caption:

“Supreme Court judgment an outcome of conspiracy
Chief Justice can be subjected to treason case, says Zulqarnain.”

The alleged statement was issued by the respondent as the President of Peoples Lawyers Forum, which was published as a news item. The above statement has been reproduced hereinabove in para. 49(xiv). It need not be reproduced here. In the above statement he allegedly stated that the Chief Justice Sajjad Ali Shah could be tried for treason under the Constitution for subverting the Constitution. Talking to newsmen he alleged that the Supreme Court Judgment on non restoration of the Benazir Government had come as a result of the conspiracy to topple the Government and that the Chief Justice was behaving a B team of Opposition. In the above case notice was ordered to be issued on 30-7-1996. However, it seems that no further action was taken in the matter till I ordered the fixation of all the contempt cases.

There is yet another case, namely, Criminal Original Petition No. 35 of 1996 against the above respondent Raja Zulqarnain, Advocate, also filed by Ch.Muhammad Farooq in his capacity as a Senior Advocate in respect of the alleged statement of the respondent published in Urdu Daily Newspaper “Khabrain” Lahore of 15-7-1996 reproduced hereinabove in para. 49(xv). In the above statement, the respondent allegedly stated that he does not case for the contempt of Court and that in the present system of appointment of Judges even illiterate persons are appointed as Judges. He allegedly further stated that the present system of appointment of Judges has failed and that illiterate Judges judgments are written by their clerks. He further allegedly stated that it is not necessary to accept all the decisions of the Judges and in respect of some of the judgments there was talk of. He also allegedly stated that the then Prime Minister committed blunder in appointing Mr.Justice Sajjad Ali Shah without merit as the Chief Justice. In the above case no notice has been issued though the case was filed more than one and a half years back.

It may be observed that there seems to be no doubt that the respondent had used intemperate language and his alleged statements prima facie fall within the ambit of Article 204 of the Constitution read with section 3 of the Act. The question, therefore, arises, as to whether should we activate the above two Criminal Original Petitions? The above cases fall within the category of the petitions against Mohtarma Benazir Bhutto and Mir Shakilur Rehman and others. If we were not to take any further action in the latter cases, the above cases are also to be given the same treatment.
[p. 1087, 1088]XX
Contempt of Court—

—Acting the case by Court—Principles—Weapon of committal for contempt of Court to be used sparingly and always with reference to the interest of the administration of justice and only from a sense of duty and under the pressure of the public necessity—Object of contempt proceedings is not to afford protection to the Judges personally from imputations to which the may be exposed as individuals, but is intended to be a protection to the public whose interest would be very much affected if by the act or conduct of any party, the authority of the Court is lowered and the sense of confidence which the people may have in the administration of justice by it is weakened.

The Courts are slow to entertain and to prosecute contempt proceedings, as the cardinal rule in the branch of contempt power in respect of scurrilous attack against a Judge or the Court is a wise economy of use by the Court of this jurisdiction. Silence and steady devotion by the Judges to duty are the best answers to irresponsible criticism. Additionally, the committal for the contempt of Court is a weapon to be used sparingly and always with reference to the interest of the administration of justice. It would be used only from a sense of duty and under the pressure of the public necessity. The object of contempt proceedings is not to afford protection to the Judges personally from imputations to which they may be exposed as individuals, but it is intended to be a protection to the public whose interest would be very much affected if by the act or conduct which the people may have in the administration of justice by it is weakened. [p. 1091] ZZ

Contempt of Court—

It is not discernible, as to why no action was taken pursuant to the above petitions containing such serious allegations which adversely reflected on the integrity and impartiality of this Court.[p. 1091]YY

I am inclined to hold that the prosecution of the above criminal petitions at this stage would not enhance the prestige of this Court, but it may tarnish the same, as Mohtarma Benazir Bhutto is no longer the Prime Minister and no action was taken in respect of the above alleged contemptuous statements/speeches/writings during her two tenures as the Prime Minister. Activating the above cases now when she is no longer in power and already facing a number of cases, may be construed by a layman as motivated. I would, therefore, order that no further action is requied to be taken in the aforesaid cases.[p. 1092]AAA
(t) Constitution of Pakistan (1973) Art. 204 & 66

I would not like to express my view on the question, as to whether the above interlocutory order was per incuriam as it will suffice to observe that the same was unprecedented particularly keeping in view tha fact that even the learned Attonery-General and the counsel for the Federation were not heard fully before passing the above order, and the same was contrary to the law declared by this Court inter alia in the above two earier cases referred to hereinabove in para. 62. The respondents’ statements are to be viewed keeping in view the aforesaid factual background and legal position.[p. 1098] BBB
(u) Constitution of Pakistan (1973) Arts. 204 & 66

Since the above press report is based on the alleged statement of the Press Secretary to the Prime Minister and not on the basis of the report of the reporters present in the meeting as to what was allegedly stated by Khalid Anwar, its correctness cannot be vouched as it is founded on hearsay, in presence of his denial to certain portions thereof. He has admitted what he had factually stated. If we were to examine the substance of the charge quoted in para. 51(2) it becomes evident that the same cannot be sustained against him.[p. 1114] VVV
(v) Constitution of Pakistan (1973) Art. 204

It may be observed that in the first substance of the charge the statement attributed to Khaild Anwar “that never in the history of U.S.A, Commonwealth and India the Supreme Court has suspended the Constitutional Amendment in the mannerf after just one and half day’s hearing and without hearing the counsel of Government or the Parliamentarian as the Chief Justice has given his decision”, does not in any way come with the ambit of contempt. It reflects the correct factual position that in the aforesaid countries a Constitutional Amendment has never been suspended through an interlocutory order within one half days of hearing and without hearing counsel for the Government or Parliamentarian. Even Mr. Muhammad Ikram Chaudhry, the petitioner in Criminal Original Petition No. 29 of 1997, has candidly conceded that he was unable to lay his hands on any order/judgment of any Court in the world, whereby a Constitutional provision had been suspended by an interlocutory order.[pp. 1114, 1115]WWW

Keeping in view the case-law and teh treatises referred to and dicussed hereinabove, I am inclined to hold that the above substance of charge and the show-cause notice against Khalid Anwar are liable to be recalled. I order accordingly.[p. 1115]ZZZ
(w) Constitution of Pakistan (1973) Art. 204

Referring to the third substance of the charge, namely, “that the Chief Justice had been making political speeches and inviting Opposition Members in his Chambers”, it may be stated that Khalid Anwar has denied of having made this statement. He has clarified that what was stated was that it was reported in the press that the opposition leaders were visiting him in Chambers. This cannot be said to be contemptuous statement.[p. 1115]XXX
Keeping in view the case-law and the treatises referred to and dicussed hereinabove, I am inclined to hold that the above substance of charge and the show-cause notice against Khalid Anwar are liable to be recalled. I order accordingly.[p. 1115]ZZZ
(x) Constitution of Pakistan (1973) Art. 204

Similarly referring to the fourth substance of the charge that Chief Justice has initiated suo motu cases regarding failure of Government of Sindh which is against the Constitution, it may be stated Khalid Anwar has denied the last part of the charge, namely, having said “which is against the Constitution”, but admitted of having said the earlier part of hte said charge. It may be stated the above admitted portion is factually corret. The same does not fall within the ambit of contempt of Court. I may again observe that any speech, writing or act which does not have the effect of interfering with the exercise of judicial functions by the Court cannot be the subject-matter of contempt proceedings. It may further be observed that only those comments or remarks should, therefore, be considered to be punishable which really have the remarks to substantially prejudice the hearing of a case or to interfere with the course of justice as has been held by this Court in the case of Ch. Zahur Ilahi, M.N.A.v. Mr.Zulfikar Ali Bhutto(PLD 1975 SC 383) (supra).[p. 1115]YYY

Keeping in view the case-law and the treatises referred to and dicussed hereinabove, I am inclined to hold that the above substance of charge and the show-cause notice against Khalid Anwar are liable to be recalled. I order accordingly.[p. 1115]ZZZ
(y) Constitution of Pakistan (1973) Art. 204

It may be pointed out that there is no reliable evidence to conclude that factually Ajmal Khattak and Professor Sajid Mir had stated what was reported in the press as the press reports are founded on hearsay evidence.

Keeping in view the background and the tense atmosphere because of the aforesaid interiocutory order of this Court suspending 14th Amendment already referred to hereinabove more than once, in my view, even I were to assume the correctness of the press reporting, it would indicate that Ajmal Khattak has not used intemperate languae. What he satated was his understanding as to the Constitutional position about the Constitutional provisin incroporated through the amendment. He has denied of having referred to the then Hon’ble Chief Justice. However, the alleged statement attributed to Professor Sajid Mir contains some intemperate languae, but according to him the press report does not reflect the correct position. I have already pointed out hereinabove that more stronger/more intemperate language has been used by some of teh aforementioned contemners in their alleged statements/speeches, but for the reasons already discussed hereinaabove, I have held that no further action in respect of the alleged contempt is warranted. I am of the view that int he case of above two alleged contemners Ajmal Khattak and Professor Sajid Mir no further action is warranted, particularly as they have expressed but they have great respect for the Court and that they never intended to commit the contempt.

I would, therefore, order that the substance of the charge and the show cause notice against both of them be dropped. [p. 1117] AAAA
(z) Constitution of Pakistan (1973) Arts. 204 & 66

I may now deal with the cases of Asfand Year Wali, Khawaja Muhammad Asif and M.A. Hamza. The substances of the charge in respect of them have been reproduced by me hereinabove in para. 51(2). They had made their speeches on the floor of the National Assembly. I have already held hereinabove that the freedom of speeches granted to the Members of the Parliament under Article 66 of the Constitution is subject to Article 204 thereof relating to contempt of Court and, therefore, their speeches are not protected if they fall within the ambit of the above Article. Furthermore, I have also held the the expunction order of the Deputy Speaker passed at the fag-end of the session on the night of 29-10-1997 would not provide a defence to them as the alleged contempt, if any, was already committed when they made their speeches where heard only by the fellow M.N.As., but also by a large number of people of Pakistai and foreign origin who were sitting in the galleries including persons belonging to the press and the electronic media.
[p. 1117, 1118] BBBB
(aa) Constitution of Pakistan (1973) Arts. 204 & 66

I have also seen the video recording of their above speeches. The tenor of the speeches was aggressive and fully charged with emotions. There is no doubt that they had used intemperate language against the then Chief Justice. Court would have indicted them if the following special circumstances would not have been present in the case, namely:

(i) That the alleged contemners were under the mistaken belief that their address on the floor of the House was protected under Article 66 of the Constitution as there was no judgment of supreme Court on the construction of the said Article of the Constitution.

(ii) That the act on the part of the Supreme Court to suspend the 14th Amendment, which was passed unanimously with the object to eliminate the vice of horse-trading as was suggested by Supreme Court in more than one judgments, through an interlocutory order on an application filed by a non-member of the Parliament and that too, without hearing the learned Attorney-General or the learned counsel for the Federation, was an unprecedented order, and the same could have provoked even the reasonable persons belonging to the political parties in power.

(iii) That there was tension obtaining between the then Chief Justice and the Executive for over two months preceding the order of Supreme Court suspending the 14th Amendment. The atmosphere was very tense and charged.

(iv) That the perception of the people belonging to political parties in power about the order of suspension of 14th Amendment was that it was prompted with the object to facilitate some of the MNAs belonging to the political parties in power to indulge in floor-crossing and to dislodge the
Government.

(v) That more intemperate language has allegedly been used by some of the other alleged contemnors already referred to hereinabove and against whom also ‘no further action is intended to be taken for the reasons already recorded.

(vi) That modern trend as reflected in the various judgments of the foreign and Pakistani jurisdictions particularly the judgments mentioned while discussing the case against the Prime Minister is that the Court should lean to promote the freedom of speech and expression which may include criticism within reasonable limits towards the working of the Court or the manner in which a particular case id decided or dealt with.

In this view of the matter, the substances of the charge and the show-cause notices against them were also liable to be discharged. I accordingly recall the same.[p. 1121]CCCC

Contempt of Court—

As regards respondents Nos. 8 to 12, it may be stated that the substances of the charge and their replies have already been reproduced/dismissed by me hereinabove Nos. 1 to 7, it would not be just and porper to take any action in the present proceedings against the above respondents. However, it may be observed that it was not proper on their part to have published or telecast the expunged portion of the speeches of respondents Nos 3. 4 6. Besides redering them liable under the contempt law, they also exposed themselves to an action for the breach of the privilege of the Assembly and its Members.[p.1122] DDDD

(bb) Constitution of Pakistan Arts. 66 & 204

That since the freedom of speech under Article 66 of the Constitution is subject to the Constitution, as a corollary, it must follow that the freedom of speech of a Member of the Parliament is subject to the contempt law under Article 204 of the Constitution and, therefore, the above provilege is not absolute.[p. 1123]GGGG
(cc) Constitution of Pakistan (1973) Art. 68
That in view of Article 68 of the Constitution read with clause(c) of sub-rule (2) of Rule 248 of the National Assembly Rules, the Speaker is obliged not to allow a Member to discuss the conduct of any Judge of the Supreme Court or a High Court in the discharge of his duties and if a Member does it in violation if the above provisions, the Speaker is expected to take any of the encisaged under Rules 267, 268 and 269 of the aforesaid Rules discussed hereinabove.[p. 1123] HHHH
(dd) Constitution of Pakistan (1973) Arts. 204, 66 & 68

That an expunction order in respect of the offending portion of a speech at the fag-end of the session would not be a defence to an action under Article 204 of the Constitution for the reaons discussed in the body of the above judgment.[p. 1124] IIII

Frame (1)

Present: Ajmal Mian, C.J., Muhammad Bashir Jehangiri, Munawar Ahmad Mirza, Sh. Ijaz Nisar, Abdur Rehman Khan, Sh. Riaz Ahmad and Ch. Muhammad Arif, JJ.

(a) Constitution of Pakistan (1973) Preamble—Interpretation of
Constitution of Pakistan—Principles.

We have a written Constitution, which is an organic document designed and intended to cater to the needs for all times to come. It is like a living tree; it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus the approach while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen effectively. The interpretation cannot be narrow and pendantic but the Courts’ efforts should be to construe the same broadly, so that it may be able to meet the requirements of an ever-changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived form the context.[p. 1005]S

(b) Interpretation of Constitution

It may be observed that one of the settled principles of construction of provisions of a Constitution/statute is that they are to be construed in a manner which may give effect to each and every word of the same and which may harmonize the working of the same and which may achieve the object under-lined in the relevant provisions. If I were to accept the contentions of Messrs Ch. Muhammad Farooq, S. Sharifudding Pirzada and S.M. Zafar, the words “Subject to the Constitution” appearing in clause (1) o f Article 66 of the Constitution will be rendered redundant/surplusage which will run counter to the well-settled principle of interpretation of a Constitutional provision and also against the intention of the Framers of the Constitution as the above words were not used in the corresponding provisions of late Constitution of 1962, namely, Article 111. The above words were deliberately used by the Framers of the Constitution. This will also run counter to the independence of Judiciary which is one of the main feature/hallmark of our Constitution. [p. 1018, 1019] CC

(c) Constitution of Pakistan (1973) Arts. 2A, IJ

I may also observe that we as the Pakistani nation should learn tolerance and inculcate the habit of appreciating the opposite point of view. Furthermore, our approach should not be short-sighted or prompted by expediency, but should be oriented with the object to promote Islamic, social and political justice and to achieve the goal of establishment of an egalitarian society, which cannot be attained unless we strive to strengthen the institutions including the Judiciary. I may state that without an independent Judiciary neither there can be stability in the country nor the rule of law, which are sine qua non for a progressive State.[p. 1124] NNNN

(d) Constitution of Pakistan (1973), Preamble

It may be seen that Constitution envisages trichotomy of powers whereby rights and responsibility of three organs of the State namely (i) Legislature, (ii) Executive and (iii) Judiciary; have been expressly specified. These organs are exclusive in themselves with regard to respective domain or jurisdiction, and cannot make inroad or transgress spheres of each other. However, each of these organs may be fashioned and function in variety of different shapes and forums.[p. 1245] II

(e) Interpretation of Constitution

It may be seen that comprehensive interpretation of Constitution is not only inherent prerogative of Superior Courts but also their obligation under the Constitution. Principle of law in this behalf by examining precedent case-law was elaborately interpreted in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84.[p. 1252] KK

Per Raja Afrasiab Khan, J.

(a) Constitution of Pakistan (1973), Article. 67, 69 &199—

A personal of Article 69 ibid shows that validity of any proceedings in the Parliament cannot be called in question on the ground of any irregularity of procedure while Article 67 shows that any proceeding in the House shall not be rendered invalid on the ground that some persons, who were not entitled to do so sat, voted or otherwise took in the proceedings. The proceedings of the House are being challenged before us on the premises of the participation of respondents Nos. 4 to 110, who allegedly were not competent to sit in the House. Apart form the position that the allegations are not well founded the proceedings would not be open to question legally in view of the cumulative effect of Articles 67 and 69 of the constitution. We are fortified in our view by the judgment of Hon’ble Supreme Court in the case of Lt.-Col. Farzand Ali as well as full Bench Judgment of this Court in the case of A.M. Khan Laghari v. Government of Pakistan (P L D 1967 Lahore 227) and Lt.- Col. Farzand Ali v. Province of West Pakistan 1980 S C M R 909. The relevant portion of the judgment in case of Lt.- Col. Farzand Ali and others. [p.492] A, B & C.

This brings us to the third proposition as to whether it is a fit case for issuance of writ of quo warranto. Suffice it is to observe that Assembly having been dissolved over two years back, it is not a for case for issuance of a writ of quo warranto and not a case covered by Article 199(1)(b)(ii). The following passage of the judgment of Hon’ble Supreme Court in the case of Lt.-Col. Farzand Ali may be reproduced hereunder as the same squarely answers this proposition as well: — [p.497] D

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