1. ' SYED HASAN ALI RIZVI, J.--1. By this order I intend to decide C.M.A. No,1090 of 2009 a petition for contempt under Article 204 of the Constitution of the Islamic Republic of Pakistan read with Contempt of Court Act, 1976 filed by the petitioner on 22-10-2009 against the respondents. Brief facts of the case are as under:-- ' That this Court passed an order dated 2nd October, 2009 on C.M.A. No,990 of 2009 directing in relation to the Board Meeting of the Directors of respondent No,5 Company to be held on 5th October, 2009 that:-- "Till the next date although the respondents may hold the meeting but any resolution passed in the meeting will not be implemented till the next date."
2. ' On 7th October, 2039 this Court passed another order on C.M.A. No,990 of 2009 in presence of the parties that: "Interim Orders passed earlier is modified only to the extent that the respondents Nos.1 to 8, if they want, can issue notice for holding General Body Meeting before 31-10-2009 but this General Body Meeting will be held only after a clear order has been given for holding such General Body Meeting by this Court. Order passed by this Court dated 2-10-2009 shall continue to remain in force till next date, in the meantime at least all petitioners, respondents and their counsel are restrained from publicizing any of the proceedings before this Court in the interest of the company, This case is adjourned to 12-10-2009."
3. ' On 12th October, 2009 this Court passed another order on C.M.A. No,990 of 2009 in presence of parties that; "Ad interim order passed earlier to continue till next date of hearing."
4. ' It is stated in the petition for contempt that the respondents, being fully aware and notified of the orders of this Court dated 2nd October, 7th October and 12th October, 2009, published the Annual Report for the year, 2009 of respondent No,5 Company, which bears the signatures of;
(a) Respondent No,1 Mr. Bashir Ali Muhammad as Chairman and Chief Executive on page 40, and
(b) The said respondent No,1, as well as respondent No,2, Mr. Zain Bashir, as Director on pages 48, 52, 53, 55, 83. 90, 91, 93, 94, 122,
(c) Respondent No,6, Mr. Mohammad Salim Ghaffar, as Company Secretary on page 37, and
(d) Respondent No,9, Chartered Accountant, put his signatures to the Annual Report on 5th October, 2009 on pages 50 and 88.
5. ' At Item No,11.4 of the Annual Report, 2009, respondents Nos. 1 to 8 have commented upon the pending proceedings before this Court and commented upon the conduct of respondent No,11 SECP, by stating as under:-- "Three directors/shareholders of the Company. Thereafter these directors/shareholders filed a petition against the Company and the others including SECP under section 290 read with section 305 of the Companies Ordinance, 1984 for appointment of an investigative auditor or alternatively pass order for winding up the Company, in the Sindh High Court at Karachi. The Company has strongly defended the suit and provided all replies with evidences to the honourable High Court.
6. The company has also sought opinion/ advice of its legal counsel and has been advised that the company has a strong case and that there is every likelihood that the petitioners will be found not entitled to the relief that they are seeking. Hence these accounts have been prepared on a going concern basis. The case is pending for hearing."
7. ' It is submitted in the petition for contempt that from the above remarks the respondents have prejudged the adjudication, which amounts to interference with the course of justice and assumes the result on pending proceedings, which are prejudice before this Court, and are liable to be struck out from the Annual Report for the year, 2009 printed in the name of respondent No,5 Company in 122 pages on glazed paper was widely and freely circulated by the respondents Nos.1 to 9 along with the form of proxy in the Karachi Stock Exchange, and to the shareholders during the subsistence of the injunctive Orders dated 2nd October, 2009, 7th October, 2000 and 12th October, 2009 which were duly communicated to all the respondents. According to the orders dated 2nd October, 2009, 7th October, 2009 and 12th October, 2009 passed by this Court; any Resolution passed was not to be implemented by the parties, including the respondents, during their subsistence. The earlier order dated 2nd October, 2600 was modified on 7th October, 2009, so as to contain the restraint on the parties from publicizing any of the proceedings of this Court. It is stated in the petition for contempt that the deliberate acts of defiance of the orders of this Court dated 2nd October, 2009, 7th October, 2009 and 12th October, 2009 clearly amount to contempt of this Court, undermine its authority, obstruct and interfere with the course of justice, and are likely to lower the esteem of this Court in public. Accordingly, the respondents Nos.1 to 9 are liable to be dealt with under law for having committed Contempt of Court and disobedience of the above mentioned orders of this Court.
8. ' That vide short order this Court dismissed C.M.A. No,990 of 2009 for reasons to be recorded later on and the detailed order has been passed by this Court on 4-1-2010 whereby connected C.M.A.
9. No,538 of 2009 was also dismissed by this Court.
10. ' Counter Affidavit on behalf of respondents Nos.1 to 8 to the petition for contempt was filed on 20- 1-2010 by Abdul Aziz Yousuf son of Yousuf Muhammad Hussain the respondent No,6 and one of the Directors of the respondent No,5 Company. The respondents in their Counter Affidavit preliminarily objected that the petition for contempt has been filed in part under Contempt of Court Act, 1976.
11. According to the respondent as per the reasoning of the Hon'ble Supreme Court of Pakistan in Ref.
12. Suo Motu Case No,1 of 2007 (PLD 2007 SC 688), the law on contempt currently in force is the Contempt of Court Ordinance, 2003. While replying the contents of the affidavit in support of the petition for Contempt, the respondent No,6 stated in his Counter Affidavit that the Annual Report for respondent No,5 i,e, Gul Ahmed Textile Mills Ltd., for the year, 2009, was a part of the notice of the Annual General Meeting. As per section 233(4) of the Companies Ordinance, 1984, audited balance sheets, profit and loss accounts together. An auditor's report, and the director's report have to be sent to every member of the Company at least 21 days before the Annual General Meeting. Thus, a failure to issue the Annual Report would have constituted a violation of the provision of Company law. It is further stated in the Counter Affidavit by the respondent No,6 that first item on the Agenda of the AGM reads as follows: "To receive, consider and adopt the Directors' Report and Audited accounts for the year ended June 30, 2009 and Auditors' Report thereon."
13. ' As such it is necessary that each member of the Company has to have a copy of such documents to enable them to consider and adopt the same. Thus, the Annual Report constituted an integral part of the Notice for the AGM. It is also stated in the Counter Affidavit that the Company/respondent No,5 had been granted sanction for issuing such notice as per order dated 7th October, 2009. It is also mentioned in the Counter Affidavit that the contents of the Annual Report were signed by the Chief Executive, a Director of the Company, and the auditors of the Company, as per the requirements of Company law. The notice of the AGM was signed by the Company Secretary in accordance with the Court order authorizing the issuance of notice. It is further stated in the Counter Affidavit of the respondent No, 6 that as per section 234(3) of the Companies Ordinance, 1934, the management of the company has to ensure compliance with the International Accounting Standards by the International Accounting Standards Board. Paras. 10, 28 and 86 of the International Accounting Standards 37 ( Provis ions , Contingent Liabilities and Contingent Assets') stipulate that contingent liabilities must be reported to all members of the Company unless they are remote. It was a necessary requirement of law for the Company to disclose the nature of the pending proceedings in its accounts documents. It is also mentioned in the Counter Affidavit of respondent No,6 that nothing other than the nature of the claim and comments of the Directors (in consultation with, and with the advice of, their legal counsel) were mentioned in the Annual Report. It is further stated in the Counter Affidavit that the contents of item No,11.4 of the Annual Report 2009 of the Company/Respondent No, 5 constitutes interference in the proceedings before this Court is patently absurd. It is also stated in the Counter Affidavit by the respondent No,6 that Circular of the Notice of the AGM (along with the Annual Report) was in accordance with, and in difference to, the relevant provisions of law. All the Members of the Company were supplied with the Notice of the AGM as expressly allowed by this Court vide order dated 7th October, 2009. The Karachi Stock Exchange was also supplied copies of the Notice as per section 233(5) of the Companies Ordinance, 1984 and the Listing Regulation No,18(1) of the Karachi and Lahore Stock Exchanges. The respondent No,6 in his Counter Affidavit denied that any resolution passed by the Board of Directors of the Company was implemented by them during the pendencey of the ad interim orders. The respondent No,6 in his Counter Affidavit referred to page-1 of the Minutes of the Meeting of the Board of Directors of Gul Ahmed Textile Mills Ltd., dated 5th October, 2009 which states : "The Chairman informed the meeting that the honourable Sindh High Court was pleased to pass the following orders in relation to the Board Meeting made by Mr. Abdul Razzak Teli: "Till the next date, although the Respondents may hold the meeting but any resolution passed in the meeting will not be implemented till the next date: "Therefore the Chairman proposed that all Resolution passed at the present meeting would only be implement if so permitted by the honourable High Court. "This was unanimously agreed to and the following Resolution was passed:-- "Resolved that all the Resolutions passed at the present Board meeting will be subject to the orders of the honourable High Court of Sindh in No, 25 of 2009 and will only be implemented if so permitted by the honourable High Court."
14. ' It is also mentioned in the Counter Affidavit to petitioner for contempt by the respondent No,6 that the contention that distribution of Annual Report constitutes an act of 'publicizing', is denied and further stated that the Annual Report was a necessary and integral part of the notice and hence it was distributed in compliance of the provisions of Company law and the Orders of this Court. The respondent No,6 who is one of the Directors of the respondent No,5 stated in his Counter Affidavit that the respondents have utmost respect of this Court and would never violate its orders and the present petition has only been filed by the petitioners with the intention of harassing the respondents and the same is liable to be dismissed with costs. The respondent No,6 further stated that the law itself lays down what must be included in the notice and all the respondents did was to comply with the relevant prevision of law. The respondent No,6 in his Counter Affidavit vehemently denied that there have been any breach of any order passed by this Court and further asserted that the respondents have at all times fully complied with all the orders passed by this Court. The respondent No,6 also stated that the grant of petition for contempt will seriously prejudice the respondents and further submitted that the petitioners have failed to make out any case of contempt and prayed that the instant petition for contempt should be dismissed with costs.
15. ' The petitioner No,1 for self and as the duly constituted attorney of the other petitioners has filedAffidavit-in- Rejoinder on 17-4-2010 in reply to the Counter Affidavit of respondent No,6 dated 20-1-2010 The petitioner raised the preliminary objection in his Affidavit-inRejoinder that the respondent No,6 is a paid employee of respondent No,5 Company and is not personally conversant with the facts of the case as claimed by him and respondent No,6 cannot claim personal knowledge of the family affairs and relationships of the petitioners and respondents Nos.1 to 4. The petitioner No,1 in his preliminary objections in his Affidavit-in-Rejoinder submitted that the Constitutional jurisdiction under Article 201 of the Constitution and inherent jurisdiction of the Hon'ble Court confer the power to punish for Contempt of Court and has referred to PLD 2006 SC page 320, 1992 SCMR page 494. It is submitted by the petitioner in his Affidavit-in-Rejoinder that the entire contents of Counter Affidavit submitted by the respondent No,6 are not correct version of facts, are mala fide, and his falsely sworn to please his master the respondent No,1 who pays him salary.
16. ' Messrs Aziz A. Munshi and Abdullah Munshi, learned Advocates for the petitioner submits that the clause (3) of the Article 204 of the Constitution of the Islamic Republic of Pakistan provides that the exercise of the power conferred on Courts to punish for contempt may be regulated by law. He further contended that under section 4 of the Contempt of Court Ordinance every superior Court shall have the power to punish a contempt committed in relation to it. He further referred section 6(c) of the said Ordinance whereby a criminal contempt shall be deemed to have been committed if a person commits any other act with intent to divert the course of justice. He has also referred section 12 of the said Ordinance whereby proceedings for civil contempt may be initiated suo Motu or at the instance of an aggrieved party. Learned Counsel for the petitioner have also referred section-13 17 of the Contempt of Court Ordinance, 2004 whereby procedures in cases of contempt have been enumerated. Learned counsel for the petitioner has referred Item No,11.4 annexure-D at page No,67 Annual Report with the memo of petition, according to him on plain reading of the aforesaid item the contemnors have been obstructing and scandalizing the Court and misleading the public when the matter is sub judice before this Court while the Contemnors prejudging the matter and mentioned in the aforesaid item that there is every likelihood that the petitioners will be found not entitled to the relief that they are seeking. According to the learned counsel for the petitioners the respondents and their counsel have done pre-judging. Persons signatory to the report are liable to be called through show-cause notice. Learned counsel for the petitioner has placed reliance upon the case of Attorney-General v. Times Newspapers Ltd., (1974)
17. AC 273, according to the House of Lords any prejudging of the merits of a case is contempt at common law because of its effect on the administration of justice generally. In the opinion of Lord Reid, anything in the nature of prejudging of a case of specific issues in it is objectionable, not only because of its possible effect on that particular case but also because of its side effect which may be far reaching and his Lordship further held at page 301 that comment on a case which is imminent may be as objectionable as comment after it has begun. Similarly, Lord Diplock was of the view at page 308 that: "To constitute a contempt of Court that attracts the summary remedy, the conduct complained of must relates to some specific case in which litigation in a Court of law is actually proceeding or is known to be imminent."
18. ' Learned counsel for the petitioner has also relief upon PLD 1992 Lahore page 200 Malik Nazar Muhammad v. The District Council and others, wherein it is held that:- "High Court has adequate powers to enforce and ensure implementation of its Order/ injunction by taking recourse to provisions of Orders XXXIX, rule 2(3) of the C.P.C." He has also relied upon 1992 CLC page 1206 Saeed Ahmed v. Mammi, wherein it is held that, "Breach of injunction order ought not to be lightly taken and upon proof of its violation must be dealt with sternly to observe respect and legal discipline in Courts."
19. ' Learned counsel for the petitioner has also referred 1989 CLC 440 Malik Shah Abdul Waheed v.
20. Karachi Metropolitan Corporation and others, wherein it is held that, "Contempt of Court once an order has been passed with jurisdiction, it was duty of all persons to obey same so long as it existed----Order XXXIX, Rule 2(3) is of a penal character as the person found guilty of breach of order is liable to imprisonment. As Such it was necessary to record that the breach of order was made with the intention to defy the authority of the Court issuing the injunction or status quo order."
21. ' Learned counsel for the petitioner has also cited 1990 MLD page 773 Dr. Abdul Ghani Siddiqui v.
22. Government of Sindh through the Secretary, Local Bodies Housing and Town Planning and others, wherein it is held that, "Where there is violation of an order of injunction, passed during the pendency of appellate proceedings etc. And the provisions of O.XXXIX, R.2(3). C.P.C. Are invoked, it is only that Court in which the proceedings were pending, in relation to which the interlocutory order came to be passed that would have jurisdiction to entertain complaints of breach of such orders."
23. Learned counsel for the petitioners contended that the respondents were fully aware of the restraining orders of this Court dated 2-10-2009, 7-10-2009 and 12-10-2009 and despite the operation of these restraining Orders, the respondents published GuI Ahmed's Annual Report 2009 on 8-10-2000 in clear violation of this Court. Learned counsel for the petitioners urged that the respondents were fully aware of the restriction on publication of the proceedings vide order dated 7-10-2000 in the present case, which was continued vide order dated 12-10-2009 till next date of hearing. The learned counsel for the petitioners also argued that under the provisions of section 158 of the Companies Ordinance 1984, Gul Ahmed would attract no penalties under law for postponing the Annual General Meeting (AGM) for a period of 90 days. Despite this legal protection, the respondent published and circulated the Annual Report, 2009 on 8-10-2009, which tangible implementation of the Resolution that were restrained and thus according to the learned counsel for the petitions Nos.1 to 8 are guilty of committing of Contempt of Court and should be dealt with sternly under the law.
24. ' Mr. Arshad Tayyab Ali, learned counsel for the petitioner No,2 adopted the arguments of Mr. Aziz A.
25. Munshi, Advocate and further submits that pages 47 and 48 of the Annexure-D (Annual Report) and has referred Agenda Item No,2 at page 48 whereby the related party transactions have been placed before the Audit Committee and approved by the Board of Directors to comply with the requirement of listing regulation of Karachi and Lahore Stock Exchanges.
26. ' I have heard Mr. Khalid Anwar, learned counsel for respondents Nos.1 to 4 and 6 to 8 who contended that vide order dated 2-10-2009 permission was allowed to hold meeting. Vide order dated 7-10-2009 this Court permitted the respondents to hold General Body Meeting before 31-10- 2009. Mr. Khalid Anwar learned counsel for respondents Nos. 1 to 4 has referred section 233 of the Companies Ordinance, 1984, which reads as under:-- "233. Annual accounts and balance-sheet.---(1) The directors of every company shall at some date not later than eighteen months after the incorporation of the company and subsequently once at least in every calendar year lay before the company in annual general meeting a balance-sheet and profit and loss account or in the case of a company not trading for profit an income and expenditure account for the period, in the case of the first account for the period since the incorporation of the company and in any other case since the proceeding account, made up to a date not earlier than the date of the meeting by more than [three] months: ' Provided that, in the case of a listed company the [Commissioner] and in any other case the registrar, may, for any special reason, extend the period for a term not exceeding [one] month.
(2) The period to which the accounts aforesaid relate shall not exceed twelve months except where special permission has been granted in that behalf by the registrar.
(3) The balance-sheet and the profit and loss account or income and expenditure account shall be audited by the auditor of the company, in the manner hereinafter provided, and the auditor's report shall be attached thereto.
(4) Every company shall send a copy of such balance-sheet and profit and loss account or income and expenditure account so audited together with a copy of the auditor's report and the director's report to the registered address of every member of the company at least twenty-one days before the meeting at which it is to be laid before the members of the company, and shall keep a copy at the registered office of the company for the inspection of the members of the company during a period of at least twenty-one days before that meeting.
(5) A listed company shall, simultaneously with the dispatch of the balance-sheet and profit and loss account together with the reports referred to in subsection (4), send five copies each of such balance-sheet and profit and loss account and other documents to the [Commission] the stock exchange and the registrar.
(6) The provisions of subsection (7) of section 230 shall apply to any person who is a party to the default in companying with any of the provisions of this section."
27. ' Learned counsel emphasized that there is a significance of an auditor for company the power of appointing of Company's Auditor lies that share-holders and the directors have no power to appoint, an auditor. Mr. Khalid Anwar, Advocate for the respondents Nos.1 to 4 further contended that the in corporate democracy law is made for benefit of share-holders and that for the statutory notices for holding 57th Annual General Body Meeting before 30-10-2009 were issued after modification of the orders passed by this Court on 7-10-2009, the learned counsel for the respondents Nos.1 to 4 further pointed out that vide order dated 29-10-2009 application C.M.A.
28. No,990 of 2009 wherein the restraining order passed was dismissed on 29-10-2009 by this Court.
29. The learned counsel for the respondent submits that on 30-10-2009 the 57th Annual General Body Meeting had already been convened after the injunction application C.M.A. No,990 of 2009 was dismissed on 29-10-2009 and the petitioner has filed baseless and malicious Contempt Application against the respondents which is liable to be dismissed.
30. ' Mr. Makhdoom Ali Khan, Advocate for the respondent No,5 has drawn the attention of this Court to the fact that the present petition for contempt has not been filed under Order 39(2)(3), C.P.C. Or provision of Contempt of Court Act, 2003. Learned counsel for the 'respondent No,5 has referred to 2010 SCMR page 354, whereby the petitions filed under the repealed Contempt of Court Act, 1976 were dismissed on the point of entertainability, learned counsel for the respondents No, 5 contended that since the present petition has not been filed under the Contempt of Court Ordinance, 2003, therefore, the same is not maintainable and is liable to be dismissed. Learned counsel for the respondent No,5 has also referred section 233 of the Companies Ordinance, 1984, which has already been reproduced hereinabove. Learned counsel for the respondent No 1 urged that the present petition for contempt is a pressure tactics on the part of the petitioners which has no leg to stand. Since the petitioners have failed to make out a prima facie case, therefore, on 29- 10-2010 the application C.M.A. No,990 of 2009 the injunction application was dismissed by this Court and detailed reasons were recorded in the order announced by this Court on 4-1-2010 whereby the application filed by the petitioner for seeking the order for restraining the defendants Nos.1 to 8 from convening a meeting of the Board of Directors as per the notice dated 28th September, 2009 issued by respondent No,5 company was dismissed by this Court. The learned counsel for the respondent No,5 has referred paragraph No,3 sub-paras. (6, 7, 8, and 10) from the parawise reply of the Counter Affidavit filed on behalf of the respondent No,5 in the present case. It is urged by the learned counsel for the respondent No,5 that no case of contempt has been made out and therefore, no personal appearance of respondents is required. He further contended that the present petition for Contempt has been filed by petitioners for harassment and for personal vendetta.
31. ' Learned counsel for the respondent No,5 referred to an order of Division Bench of this Court that C.P. No,D-42 of 1999 passed by Mr. Justice Sabihuddin Ahmed as the lordship then was and Mr. Justice Ali Aslam Jafri, whereby while dismissing the contempt application it is held that; " contempt jurisdiction ought to be sparingly exercised and should not A be allowed to be used for settling private scores".
32. It is further observed in the aforesaid judgment/Order that "It is of the utmost importance that a committal for contempt should not be made unless the A disobedience shown is of such a serious nature as to indicate that the alleged contemner is deliberately out of flout" ..
33. ' Mr. Makhdoom Ali Khan learned counsel for the respondent No,5 has also referred to a judgment of House of Lords Attorney General v. British Broadcasting Corporation 1978 A. No, 501 wherein it is observed at page 342 that, "freedom of speech and freedom of the Press, these two freedoms are two of the pillars of liberty.
34. They should never be diminished unless justice so requires, e.g., if a man is charged with a criminal offence it would be a gross contempt of Court for the press to publish any of his past wrongdoings indeed to write prejudicial articles about him There would be a grave danger that such conduct might prevent him from having a fair trial; juries are sometimes seriously prejudiced by what they hear or read. The media however are very careful to avoid these pitfalls whether in criminal trials or civil trials by jury. Practically every civil action is however tried by Judge alone. Some of these cases are of great public importance. Contempt of Court in relation to such cases was carefully considered by the Phillimore Committee and its report was published about six years ago, Nothing has happened since, although the report contains excellent recommendations and suggestions for much needed reforms. I am and have always been satisfied that no Judge would be influenced in his judgment by what may be said by the media. If he were, he would not be to be a Judge."
35. Learned counsel for the respondent No,5 has also referred to the judgment of Sunday Time v.
36. United Kingdom, wherein the Divisional Court of the Queen's Bench Division granted the Attorney General's application for an injunction restraining publication of this future article on the ground that it would constitute contempt of Court, he was deliberately attempting to persuade Distillers to pay more. Unpublished article which was the subject of the injunction opened with a suggestion that the manner of marketing thalidomide in Britain left a lot to be desired. On 18 July, 1973, the House gave judgment unanimously allowing the appeal and subsequently directed the Divisional Court to grant an injunction in the terms set out in paragraph. The applicants claim to be victims of a violation of Article 10 of the Convention which provides; "Every one has the right to freedom of expression. Having regard to all the circumstances of the cases and on the basis of the approach the Court concludes that the interference complained of did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the Convention. The Court, therefore, finds the reasons for the restraint imposed on the applicants not to be sufficient under Article 10(2). That restraint proves not to be proportionate to the legitimate aim pursued it was not necessary in a democratic society for maintaining the authority of the judiciary. The Court holds by eleven to nine that there has be a breach of Article of the Convention."
37. ' Mr. Ejaz Ahmed, Advocate for respondent No,9 the Auditor of the Company referred to page 50 of annexureD/Annual Report dated 5th October, 1999. Mr. Ejaz. Ahmed, Advocate contended that in the petition for contempt the allegations against the respondent No,9/Auditor has been mentioned in para-5(d) of the petition that he put his signatures to the Annual Report on pages 50 and 53 of Annexure-D. Mr. Ejaz Ahmed, Learned Advocate for respondent No,9 urged that Agenda was allowed in AGM and the AGM was a statutory requirement under the Companies Ordinance, 1984 as such no contempt has been committed by the respondent No,9/Auditor, while he has performed his statutory duty by putting signatures on the Auditor's report to the members and auditors on consolidated financial statement of respondent No,5.
38. ' Learned counsel for the respondent No,9 argued that the petition for contempt has not been filed under the Contempt of Court Ordinance, 2003 and the Supreme Court of Pakistan in PLD 2007 SC 688 has observed that the law on contempt currently in force is that Contempt of Court Ordinance, 2003, therefore, present petition is liable to be dismissed. He further contended that the petition for contempt has been filed with mala fide intention by the petitioner against the answering respondent who has performed its statutory obligations as auditors of the respondent No,5 has acted strictly in accordance with law and the petitioner has failed to point out any action undertaken by the respondent No,9 in the petition for contempt which in any manner causes any breach of any order passed by this Court. He further argued that admittedly this Court allowed the holding of Board of Directors meeting and had also allowed the issuance of notice of Annual General Meeting of respondent No,5 Company. Section 233(3) of the Companies Ordinance, 1984, requires that the balance sheet and profit and loss account of a company shall be audited by an auditor. Section 233(4) of the Companies Ordinance, 1984 requires that a copy of the balance sheet and profit and loss account of a company audited in the manner required by section 233(3) shall be sent to each shareholder together with the report of the auditors at least 21 days before the annual general meeting. This is also envisaged in sections 158 and 160 of the Companies Ordinance, 1984. The respondent No,5 being a listed company is obliged to provide copies of the annual accounts to the stock exchanges, where it is listed, as required by section 233(5) of the Companies Ordinance, 1934 and Listing Regulations of such stock exchanges. The respondent No,9 issued its report as auditors of respondent No,5 in discharge of the aforesaid statutory obligations.
39. Learned counsel for respondent No,9 urged that the respondent No,9 has the utmost respect of this Court and holds its orders in high esteem, has acted in good faith to discharge its statutory obligations.
40. ' While rebutting the arguments of the respondents Mr. Arshad Tayyab Ali, learned counsel for the petitioner has referred term/business Nos.4 and No,6 the Agenda for the meeting of the respondent No,5 to be held on Monday 5th October, 2009 as mentioned to the annexure-A with C.M.A. No,990 of 2009, the said application has already been dismissed on 20-10-2009, to approve Director's Report and statement of compliance with the Code of Corporate Governance and to release the approved transaction with related parties. He contended that now they approved/ implemented the Resolution, however the Resolution was not filed by the respondents.
41. ' Mr. Aziz A. Munshi, Advocate for the petitioner while rebutting the arguments of the respondents referred to section 158 of the Companies Ordinance, 1984 regarding Annual General Body Meeting of Company and contended that the SECP/Registrar may for any special reason extend the time within which any annual meeting, not being the first such meeting, shall be held by a period not exceeding 90 days and the notice of an annual general meeting shall be sent to the shareholder at least 21 days before the date fixed for the meeting and, in the case of a listed company, such notice, in addition to its being dispatched in the normal course, shall also be published at least in one issue each of a daily newspaper in English language and a daily newspaper in Urdu language having circulation in the Province in which the stock exchange on which the company is listed is situated. And referred of Affidavit-in-Rejoinder of the petitioner wherein it is submitted that respondent No,5 company would incur no penalty under law postponing their Annual General Meeting for a period of ninety days. Despite these legal provisions, the management of respondent No,5 Company was not entitled to publish and circulate the Annual Report for the year, 2009 in the face of an operative injunctive Order, but they still voluntarily chose to do so, and accordingly, committed Contempt of Court in the process. Mr. Aziz A. Munshi, Advocate has referred House of Lords Judgment Attorney General and Times Newspapers Ltd. A.C. 1974 page 272 wherein it is held that, "it was contempt of Court to publish material which prejudge the issue of pending litigation or was likely to cause public prejudgment of that issue, and accordingly the publication of this article, which in effect charged the company with negligence, would constitute a contempt, since negligence was one of the issue in the litigation".
42. ' It is further observed in that judgment that "anything in the nature of prejudgment of a case or of Specific issues in it is objectionable, not only because of its possible effect on that particular case, but also because of its side effects which may be far-reaching-- Comment on a case which is imminent may be as objectionable as comment after it begun---To constitute a contempt of Court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a Court of law is actually proceeding or is known to be imminent."
43. ' Mr. Aziz A. Munshi Advocate referred to pages 47 and 48 of annexureD/Annual Report, 2009 of respondent No,5 dated 5th October, 2009 the clause 20 of that report states that "related party transactions have been placed before the audit committee and approved by the Board of Directors to comply with the requirements of listing regulations of the Karachi and Lahore Stock Exchanges."
44. ' Mr. Aziz A. Munshi, Advocate has argued that also the notice of meeting published in daily Business Recorder, Friday 9th October, 2006 by the respondents for its 57th Annual General Meeting to be held on 30th October, 2009 and the same is enclosed as Annexure-A with the Affidavit-in-Rejoinder of the petitioner. Mr. Aziz A. Munshi argued that C.M.A. No,990 of 2009 no doubt was dismissed on 29-10-2009 by this Court and reasons was pronounced on 4-1-2010, but the respondents have violated the orders of this Court dated 2-10-2009, 7-10-2009 and 12-10-2009.
45. ' I have heard Messrs Aziz A. Munshi, Abdullah Munshi and Arshad Tayyab Ali, learned counsel for the petitioners, Mr. Khalid Anwar, Advocate for defendants Nos. I to 4, Mr. Makhdoom Ali Khan, Advocate for respondent No,5 Mr. Ejaz Ahmed, Advocate for respondent No,9 and perused the relevant record and the case-law cited by the learned counsel for the respective parties. The main emphasis of the petitioners' counsel that the respondents have committed contempt of Court by printing and circulating Annual Report of the respondent No,5 Company B and on page 67 as item No,11.4 published the remarks which are establishing that respondents have prejudged adjudication, which amounts to interference with the course of justice and thus have flouted the orders passed by this Court in the present petition on 2nd October, 2009, 7th October, 2009 and 12th October, 2008. Whereas, the contentions of the respondent's counsel are that the Annual)
46. Report of respondent No,5 for the year, 2009 was a part of notice of the Annual General Meeting issued in compliance of the sections 233(4), 234(3), 233(5), of Companies Ordinance, 1984 and the Listing Regulation No,18(1) of the Karachi and Lahore Stock Exchanges. The respondents' counsel argued that by orders dated 2-10-2009, there was no restraining order for convening meeting of the Board of Directors' Company as per notice dated 28th September, 2009 issued by the respondent No,5, but any Resolution passed in the meeting will not be implemented till the next date. The stay order was modified on 7-10-2009 to the extent that respondents Nos.1 to 3, if they want can issue notice for holding Annual General Meeting before 31-10-2009, but that General Body Meeting will be held only after clear order has been given for holding such General Body Meeting made by this Court. However all petitioners, respondents and their counsel were restrained from publicizing any of the proceedings before this Court. It is contended that even in the minutes of meeting of the Board of Directors of respondent No,5 October 5, 2009, the Chairman informed in that meeting about the orders of this Court passed in the present petition and proposed that all Resolutions passed at the meeting would only be implemented if so permitted by this Court and it was unanimously passed in that Resolution that Board Meeting will be subject to the orders of this Court in J.M. No,25 of 2009 and will only be implemented so permitted by this Court.
47. ' I have carefully perused Item No,11.4 of the Annual Report 2009 annexure-D which is being reproduced hereinbelow for ready reference:-- "11.4 Three director/shareholders of the Company had filed a complaint against the Company and its Chief Executive to the Securities and Exchange Commission of Pakistan (SECP) for gross misconduct, misdeed, breach of fiduciary obligations, embezzlement and misappropriation, non- compliance of corporate governance. The SECP after affording an opportunity to all concerned and after duly scrutinizing the contents of the complaint, have found the reply of the Company in order and disposed of the complaint with no action against the Company. Thereafter these directors/shareholders filed a petition against the Company and the others including SECP under section 290 read with section 305 of the Companies Ordinance, 1984 for appointment of an investigative auditor or alternatively pass order for winding up the Company, in the Sindh High Court at Karachi. The Company has strongly defended the suit and provided all replies with evidences to the honourable High Court. The Company has also sought opinion/ advice of its legal counsel and has been advised that the Company has a strong case and that there is every likelihood that the petitioners will be found not entitled to the relief that they are seeking. Hence these accounts have been prepared on a going concern basis. The case is pending for hearing."
48. ' On bare reading of the Item No,11.4 in my humble opinion there seems no commission of contempt of Court or violation of any order of this Court wilfully flouting or disregard. The alleged contenmors neither have done any act with intention to obstruct the administration of justice nor the responding scandalizing a Judge of this Court. After reading Item No,11.4 of the annexure-D, I am of the view that the respondents have not disobeyed or disregarded, or committed a wilful breach of a valid undertaking given to this Court when the order dated 7-10-2009 was passed in the petition whereby all the petitioners, respondents and their counsel were restrained from publicizing any of the proceedings before this Court in the interest of Company. It is very clear from wording of the Item No,11.4 of page No,67 of annexure-D that no proceedings before this Court in the present petition have been published. Only pendency of the present petition without even giving the number of the petition has been mentioned and only an information/advice of the counsel of respondent No,5 that the Company has strong case and there is every likelihood that petitioners will not be found not entitled to the relief that they are seeking has been mentioned. These wordings/ opinion/advice of a counsel to its client cannot be said a prejudgment. The Advice/ opinion of the counsel of the respondents as referred to is not certain and definite, but it is mentioned that there is every likelihood that the petitioner will be found not entitled to the relief that they are seeking. The Directors of respondent No,5 and respondent No,5 themselves had obtained the services of very senior counsel of the country in the present petition and one can expect from such senior counsel to give an opinion/advice regarding a strong case or likelihood of success or defeat in any case. It is a matter of record that C.M.A. No,990 of 2009 in the present petition wherein the orders dated 2-10-2009, 7-10-2009 and 12-10-2009 referred to in petition for contempt has already been dismissed by this Court on 29-10-2009 by a short order and reasons therein were recorded by a detailed order of this Court and announced on 4-1-2010. The application being C.M.A. No,538 of 2009 for appointment of Provisional Manager with power to undertake investigative audit has also been dismissed with the same order referred to above. The issuance of Annual Report, 2009 annexure-D to its share-holders and Stock Exchanges of Karachi and Lahore was the requirement under section 233 of the Companies Ordinance, 1984 and Listing Regulations of the Stock Exchanges.
49. ' I am of the firm view that the respondents have not done any action of contempt in violation of the orders passed by this Court. For the reasons stated above the petition for contempt of Court is legally not maintainable no contempt as alleged in the petition has been made out and I, therefore, dismiss the petition for contempt bearing C.M.A. No,1090 of 2009.