ATHAR MINALLAH, C.J. The Registrar of this Court had placed before the then Acting Chief Justice a report, on 22.08.2022, regarding a speech made by Imran Ahmad Khan Niazi, Chairman Pakistan Tehreek-e-Insaf [hereinafter referred to as the "Respondent"]. The speech was made by him on 20.08.2022 at a park before a sizeable assembly consisting of charged protesting workers belonging to his political party. The relevant portion of the speech is reproduced as follows: In exercise of powers conferred under the Contempt of Court Ordinance, 2003 [hereinafter referred to as the "Ordinance of 2003], the Acting Chief Justice, vide order dated 22.08.2022, took suo motu notice and constituted a larger Bench consisting of three Hon'ble Judges of this Court for initiating proceedings under the Ordinance of 2003. The matter was heard by the learned Bench on 23.08.2022. After perusal of the record, the Bench was satisfied that, prima-facie, a case was made out to proceed against the Respondent. The speech of the Respondent was regarding a sub judice matter in relation to a criminal case i.e. FIR No. 691/2022, dated 09.08.2022, registered at Police Station Kohsar, Islamabad. At the same time it was also sub judice before this Court. The learned Bench ordered the issuance of notice to the Respondent and the latter was directed to appear on 3I.O8.2022. Consequently a show cause notice, dated 25.08.2022, was served upon the Respondent.
The learned Bench had also directed to enlarge the Bench and, pursuant thereto, a Bench consisting of five Judges was constituted. The Respondent filed a provisional reply explaining the context in which he had made the offending speech. He had also stated that in case the Court was not satisfied with his provisional reply then he may be allowed to supplement it. The Respondent tendered his appearance along with his counsel on 3I.O8.2022. The provisional reply was not found satisfactory and, therefore, as requested, an opportunity was extended to enable Respondent to file a supplementary reply. The Pakistan Bar Council and two senior counsels, Mr Munir A. Malik, senior ASC and Mr. Makhdoom Ali Khan, senior ASC were appointed as Amici Curiae. The proceedings were directed to be fixed on 08.09.2022. The supplementary reply was filed and the learned counsel for the Respondent and the learned Amici Curiae were heard at great length on 08.09.2022. The representative of the Pakistan Bar Council was of the opinion that although the Respondent had expressed his regrets that was not enough, because he should have tendered an unconditional apology besides placing himself at the mercy of the Court. On the other hand, the two senor counsels appointed as Amici Curiae were of the opinion that the supplementary reply was satisfactory and they suggested discharging the show cause notice.
However, we did not find the explanation satisfactory and, therefore, we directed fixation of the matter on 22.09.2022 for framing of the charge. On 22.09.2022, the Respondent tendered his appearance and sought leave of the Court to make a statement. His statement was recorded in our order, dated 22.09.2022. The remorse and realization of having crossed the line was obvious. He had explicitly stated that there was never any intent to threaten the Hon'ble Judge of the District Court and that the statement was regarding taking legal action. He had further stated that he was willing to clarify before the Hon'ble Judge of the District Court that neither he nor his political party had sought any action against her and that he would willingly apologize to her if she felt that he had crossed a line. He gave an assurance that he would never do anything in future that would undermine the dignity of the Court and the judiciary, particularly the District Court. We found the explanation and apology to be satisfactory and asked the Respondent to file his affidavit. The proceedings were adjourned till 03.10.2022. The Respondent filed his affidavit and the same is reproduced as follows: "AFFIDAVIT OF THE RESPONDENT I, Imran Ahmed Khan Niazi, son of late Ikram Ullah Khan Niazi, Chairman Pakistan Tehreek-e-Insaf, respondent herein, resident of Banigala, Islamabad, do hereby state on oath as under:
1. That the deponent as the Chairman of Pakistan Tehreek-e-Insaf during the last 26 years, has been struggling hard for the rule of law, respect and independence of the judiciary in Pakistan and that, unlike other political leaders, the deponent has always spoken for the rule of law in every public gathering.
2. That the deponent realized during these proceedings before the Honourable Court that the deponent might have crossed a red line while making public speech on 20 August 2022. The deponent never intended to threaten the Hon'ble Judge of the District Court and that there was no intention behind the statement to take any action other than a legal action.
3. That the deponent wants to assure this Honourable Court that the deponent is willing to explain and clarify before the Hon'ble Judge of the District Court that neither he nor his party seeks/sought any action against the Hon'ble Judge and the deponent is willing to apologize to the Hon'ble Judge if she got an impression that the deponent had crossed a line.
4. That the deponent wants to assure this Hon'ble Court that he would never do anything in future that would hurt the dignity of any Court and the judiciary, especially the lower judiciary.
5. That the deponent is willing to take any further steps that this Hon'ble Court deems necessary and appropriate for the satisfaction of this Hon'ble Court that he never intended to interfere with the process of the Court or impugn the dignity or independence of the judiciary.
6. That whatever is stated above is substantially the statement made by the deponent before this Hon'ble Court on the last date of hearing, 22 September 2022, and that he stands by and reiterates the said statement and once again assure this Hon'ble Court that he would always abide by the afore-referred statement, in letter and spirit.
Sd/- Deponent"
The Respondent again tendered his appearance on 03.10.2022. We were informed that the latter had visited the Court of the Hon'ble Judge of the District Court on 30.09.2022 with the intent to tender his apology but the latter was on leave. The appearance of the Respondent in the court of the District Judge was widely reported in print as well as electronic media. Copies of newt reports were also placed before us.
2. Mr Aamir Rehman, learned Additional Attorney General, has raised objections regarding the past conduct of the Respondent, his explanation and the affidavit submitted pursuant to our direction.
He has argued that the principles and law enunciated by the august Supreme Court in the cases titled "Contempt proceedings against Senator Nehal Hashmi" [2018 SCMR 556], "Suo motu contempt proceedings initiated against Daniyal Aziz" [PLD 2018 SC 738], "Suo mow contempt proceedings initiated against Talal Chaudhary" [PLD 2018 SC 773], "Talal Ahmed Chaudhary v.
The State" [2019 SCMR 542] were binding and, therefore, in the light thereof the present contempt proceedings could not be discharged unless the alleged contemnor tenders an unconditional apology and places himself at the mercy the Court. He has further argued that even if an unconditional apology was tendered this Court would not be bound to accept it.
3. The question raised by the learned Additional Attorney General and required to be answered by us is; whether an unconditional apology and placing oneself at the mercy of the Court was a condition precedent for being, discharged from contempt proceedings. In order to answer this question it would be beneficial to briefly survey the statutes relating to contempt that have remained enforced from time to time and the principles enunciated by the august Supreme Court.
4. The Contempt of Court Act 1926 [hereinafter referred to as the "Act of 1926") was promulgated and enforced on 8th March, 1926. Section 3 of the Act of 1926 provided that contempt of court may be punished with imprisonment for a term which may extend to six months or with a fine. However, the first proviso explicitly contemplated that the accused may be discharged or the punishment awarded be remitted on an apology being made to the satisfaction of the court. The Act of 1926 was repealed upon the promulgation of the Contempt of Court Act 1976 [hereinafter referred to as the "Act of 1976"). Section 4 of the latter statute provided that whoever commits contempt of court or abets the commission of contempt may be punished with simple imprisonment for a term which may extend to six months or with a fine. However, under the proviso the court was vested with a discretion, whether after putting up a defence or without offering any defence, to discharge an accused or remit the sentence if it was satisfied that the latter had purged himself/ herself of the contempt of Court. The Ordinance of 2003 had repealed the Act of 1976. Section 3 thereof described the acts amounting to contempt. Subsection (1) of section 5 prescribed the punishment for committing contempt. Subsection (2) of section 5 provides an opportunity to the person accused of having committed contempt to submit an apology at any stage and its acceptance has been made subject to the satisfaction of the court. The court, therefore, has to be satisfied that the apology submitted at any stage is bona fide. The explanation clarifies that the fact that an accused person genuinely believes that he has not committed the offence and enters a defence shall not detract from the bona fides of an apology. Subsection (3) of section 18 provides that 'truth' shall be a valid defence in cases of contempt of court. Sub-section (1) of section 18 provides that even if the culpability has been established yet the factum of guilt and conviction would be subject to the satisfaction of the court that the alleged Contempt was of the nature that was substantially detrimental to the administration of justice or scandalizes the court or otherwise tends to bring the court or judge into hatred or ridicule. Next we will discuss the precedent law.
5. The august Supreme Court, in the case titled "Ch. Zahur MN, M.N.A. v. Mr. Zulfikar Ali Bhutto and 2 others" [PLD 1975 SC 383], has observed and held that the power to convict for contempt is a power which has been vested in the superior Courts as an extraordinary power and, therefore, must be exercised with great circumspection only where it is absolutely necessary and in the public interest to do so. It has been further emphasized that comments in respect of pending proceedings are treated as contempt in order to keep the streams of justice pure and unsullied.
Only those comments or remarks should, therefore, be considered to be punishable which really have a tendency to substantially prejudice the hearing of a case or to interfere with the course of justice.
The question always is whether the Court before which the matter is pending would be so influenced by the article or speech that its impartiality might be consciously or even unconsciously affected. In essence, the Court has to be satisfied that there is a real possibility of the speech or the article being calculated to prejudice either party in the pending case. In relation to the nature of contempt of court proceedings, the august Supreme Court has held that proceedings for committal of contempt does not necessarily partake the nature of a criminal proceeding. The principle enunciated in the case titled as "Saadat Khialy, Staff Reporter ("Kohlstan" Daily) and others v. The State and another" [PLD 1962 SC, 457] that contempt proceedings were sui generis in nature, partaking both civil and criminal proceedings but really constituting neither was reaffirmed. It was further observed that there was no fixed formula for contempt proceedings and that technical accuracies were not required, nor was the Court bound by the provisions of the Code of Criminal Procedure [hereinafter referred to as the "Cr.P.C."] or by the technicalities of ordinary criminal proceedings. The apex Court emphasized that courts of justice would normally follow the fundamental rules for the ascertainment of the truth by giving the fullest opportunity to the person accused of defending himself/herself and of putting forward his/her case with as much, if not more fairness as is expected in an ordinary trial. These principles were later reaffirmed by the apex Court in the cases titled "Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others"
[PLD 1998 SC 823], "Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others"
[2000 SCMR 1969]. The august Supreme Court has explicitly observed that contempt proceedings would not be allowed to be used for settling private scores or vendetta and much less for granting political advantages. It is well settled that in contempt proceedings the matter of placing the onus is totally different from a case under criminal law which presumes the innocence of the accused and places the burden on the prosecution to establish the charge against the latter beyond a reasonable doubt. However, in a contempt case, the onus is entirely upon the person charged to prove his innocence. Reliance is placed on the cases "Syed Masroor Ahsan and others: v. Ardeshir Cowasjee and others" [PLD 1998 SC 823] and "Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others" [2000 SCMR 1969]. Moreover, in the case titled "The State v. Khalid Masood"
[PLD 1996 SC 42] and later affirmed in the case of "Shahid Orakzai" supra the august Supreme Court has held that the principle that if two views on the same evidence are plausibly possible, then the one favoring the person standing trial should be preferred over the one against him, cannot be pressed into service in contempt proceedings as the same are not criminal proceedings stricto senso but are sui generis in nature. The matter of contempt is essentially between the Court and the contemnor. It is, therefore, settled law that taking action against a contemnor or accepting an apology is entirely a matter between the alleged contemnor and the court and thus subject to the latter's satisfaction. A larger Bench of the august Supreme Court, in the case titled "Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others" [PLD 1998 SC 823], has observed and held that a mere apology cannot wipe off the gravity of contempt. However, jurisdiction in this behalf is required to be cautiously exercised because the ultimate object sought to be achieved is curative not punitive and, invariably, is to be used to uphold the majesty of law and the dignity of the institution. The august Supreme Court, in the case of "Syed Masroor Ahsan" supra has enumerated the fundamental principles for accepting an apology. In the case titled "Syed Ahmad Shah and Feroze Din v. The State and another" [PLD 1967 SC 42] the august Supreme Court has described the contempt of Court proceedings as a short handed method and has emphasized that the jurisdiction-should be exercised with circumspection and that too upon real proof. It has been emphasized in the case 'titled "Ch. Zahur Ilahi M.N.A. v. Mr Zulfikar Ali Bhutto and 2 others"
PLD 1975 SC 383] that the contempt would become punishable when there is a real likelihood that the alleged act would tend to 'substantially prejudice the proceedings or interfere with the course of justice. The contempt proceedings, therefore, must not be invoked unless there are grave and serious reasons or real and substantial grounds.
6. There is yet another crucial aspect relating to the contempt proceedings; whether the seminal principle of criminal law i.e. extending benefit of doubt to an accused would be attracted in contempt proceedings. As already noted above , the nature of contempt proceedings is sui generis. Nevertheless, the effect of the proceedings is penal because an alleged contemnor is exposed to conviction followed by a sentence which may extend to six months. Contempt is a paradoxical and extraordinary power which could lead to profound consequences for an alleged contemnor including being sentenced to imprisonment for up to months upon conviction. We, therefore, have no doubt that, keeping in view the nature, effect and consequences of contempt, a court has to strike a balance between the exercise of this extraordinary power' and observance of the cardinal principles relating to a fair trial. The need to go the extra mile in ensuring that the alleged contemnor exercises the constitutionally guaranteed right to due process in contempt proceedings becomes an obligation of the court. As a corollary, the principle of extending the benefit of doubt has to' be treated as embedded in proceedings relating to contempt. The benefit cannot be denied to the alleged contemnor. We are, therefore, of the view that the principle of extending the benefit of doubt forms an integral part' of contempt proceedings. In this regard we are fortified by the cases titled as "Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others" [PLD 1996 SC 77], "Dr. Mazhar Ali Hashmi v. Abdul Qadir and 2 others" [PLD 1971 Lahore 278], "Abdul Sattar v. Shamim Akhtar and others"
[1997 SCMR 457], "Abdul sattar v. Income-Tax Officer Circle XV, East Zone, Karachi and another"
[PLD 1989 Karachi 264], "Dr, Asaf Hussain Jafri v. K.B. Bhutto, Advocate" [PLD 1990 Karachi 173] and "Contempt Proceedings against Imran Khan. Chairman, Pakistan Tehreek-i-Insaf [PLD 2014 SC 367].
7. It is obvious from the above discussion that the power of contempt is an extraordinary and peculiar weapon available to a court and must only be exercised in extreme grave cases and that too, sparingly and with circumspection. Its nature is extraordinary and paradoxical because of the multiple roles that a court has to assume. A court in a contempt case exclusively regulates its own proceedings because the procedures prescribed under the general statutes are not attracted. In contempt matters the Court assumes the roles of a complainant, prosecutor, jury and then the sole arbiter. The onus to establish that no contempt has been committed is solely on the contemnor., Whether the charge has been established, what kind of apology should be tendered and whether or not it ought to be accepted are factors that are entirely dependent on and subject to the satisfaction of the court, which has already formed a prima facie opinion that contempt has been committed. Contempt proceedings by their very nature are contrary to the principles of a fair trial and evidence. The principles of safe administration of justice become extremely important for a court to follow in contempt. It also becomes an obligation of the Court dealing with contempt not to be seen as judging its own cause. As already noted above, the august Supreme Court has explicitly held that the object of contempt is curative and not to punish a contemnor. The question of tendering an apology would become relevant when the court, upon conclusion of the proceedings, is satisfied that the charge of contempt has been established and that no case is made out to extend the benefit of doubt. A plain reading of section 5 of the Ordinance of 2003 read with section 18 ibid, expressly provides that a contemnor cannot be held guilty unless the court is satisfied that the contempt is one which is substantially detrimental to the administration of justice or scandalizes the court or otherwise tends to bring the court or a judge into hatred or ridicule.
However, in case the court is satisfied that the contempt is of the nature which is substantially detrimental then, subject to the satisfaction of the court regarding the bona fides of an apology tendered by a contemnor, the contempt can be discharged. The question of tendering an unconditional apology and placing oneself at the mercy of the court would arise when the contemnor unequivocally admits and acknowledges the factum of guilt or when under the facts and circumstances of the case the benefit of doubt cannot be extended. Even in such an eventuality the Ordinance of 2003 clearly contemplates that the mode, form or nature of an apology is entirely depended upon and subject to the satisfaction of the court. The 'satisfaction of the court' is thus the foundational principle in this regard. The apology may not be expressly tendered but the court may be satisfied that its bona fides stand impliedly established by the conduct or written submissions of the contemnor. The 'satisfaction of the court', therefore, cannot be restricted to any particular mode, form or nature of an apology. The court has to be satisfied that the contemnor regretfully acknowledges having committed contempt and such acknowledgment must appear to be bona fide. A court may, therefore, be satisfied even if an unconditional apology has not been tendered. The right of due process and fair trial essentially requires that the contemnor must not be deterred from contesting the allegations nor from entering a defense. The contemnor must not be influenced in any manner to tender an apology in a particular mode or manner because the statute expressly provides that in case of contempt truth shall be a valid defense. The court has to exercise extreme care when the contempt stems from a speech because the exercise of the contempt power can conflict with the right of freedom of speech guaranteed under Articles 19 and 19 A of the Constitution. Even more circumspection and care would be required to be exercised by a court so as to avoid creating a chilling effect vis a vis free speech. The contempt power must only be invoked and exercised for grave and serious reasons and on real and substantial ground. The attributes of grace, magnanimity and forgiveness, inherent to the status of a court, are definitely a safeguard against conviction and sentencing for contempt when the curative effect of the proceedings becomes obvious. The emphasis of the learned Additional Attorney General on the cases of Danyal Aziz supra, Tallal Chaudhary supra and Senator Nehal Hashmi supra, is out of context and misplaced. In all three cases the apex Court was not satisfied that the regretful conduct of the contemnors nor the unconditional apologies tendered by them were bona fide. By no stretch of the imagination can the judgments be construed as binding precedent that in each case an unconditional apology must be tendered and yet the contemnor be held guilty. The satisfaction of the court would obviously be dependent on the facts and circumstances of each case. We, therefore, have no hesitation in holding that the tendering of an unconditional apology and placing oneself at the mercy of the court is not a condition precedent for discharging the contemnor from contempt. In each case the court, after taking into consideration the peculiar facts and circumstances involved therein, has to be satisfied that a case of contempt is made out and, if so, then subject to its satisfaction that the contemnor has bonafidely tendered an apology, discharge the latter.
8. In the case in hand, the contempt stems from a speech made by the Respondent before a charged protesting assembly consisting of his political workers and supporters. The relevant portion of the speech has been reproduced above. The language, tone and context was indeed inappropriate and definitely not expected from a political leader and who had recently served as the Prime Minister of the country. It was alarming that an Hon'ble judge of the District Courts was addressed by name. The speech was not followed by any other action. Later, the Respondent attempted to explain in public meetings the context, which had led him to make the undesirable utterances. He had tendered his appearance before us and had expressly stated that he held the judiciary in high esteem and that he had no intent to threaten nor to bring the Hon'ble judge of the District Court into hatred or ridicule. Though we were satisfied with his explanation and apology but he was asked to submit an affidavit. The Respondent filed his affidavit reiterating therein what he had stated before us. He had also appeared in the court of the Hon'ble District Judge with the intent to tender his apology but she was on leave. The appearance of the Respondent in the court of the Hon'ble Judge and his intent to tender his apology to her was widely reported in the print and electronic media. The conduct of the Respondent, his explanation and apology, particularly his appearance in the Court of the Hon'ble District Judge, manifest that the regretful acknowledgment regarding the utterances made by him was bona fide. We have also read the speech as a whole and the Respondent's explanation that the reference was regarding taking legal action has not been found to be without substance. The speech was not followed by any other action. The only actues reus is the aforementioned speech. There is no reason to refuse extending the benefit of doubt to the Respondent. Even otherwise, we are satisfied that the proceedings in hand and the conduct of the Respondent unambiguously manifest a curative effect. We have no reason to dispute the bona fide of the regretful acknowledgment on the part of the Respondent manifested through his conduct, tendering appearances before 'us, explaining his stance and reiterating it by executing the aforementioned affidavit. Despite extending the benefit of doubt, we are satisfied that the apology tendered by the Respon-dent is indeed bona fide and we have no reason to form a different opinion.
9. The above discussion gives us no reason to further proceed with the contempt and, therefore, we hereby discharge the Respondent and consequently the show-cause notice served upon him is withdrawn.
Sd/-'
(Chief Justice)
I agree with decision, but added my additional note.
Sd/- (Mohsin Akhtar Kayani)
Judge Sd/- (Miangul Hassan Aurangzeb)
Judge Sd/- (Tariq Mehmood Jahangiri)
Judge I agree with the decision, but for reasons stated in my separate note.
Sd/- (Babar Sattar)
Judge That the deponent realized during these proceedings before the Honourable Court that the deponent might have crossed a red line while making public speech on 20 August 2022. The deponent never intended to threaten the Hon'ble Judge of the District Court and that there was no intention behind the statement to take any action other than a legal action.
That the deponent wants to assure this Honourable Court that the deponent is willing to explain and clarify before the Hon'ble Judge of the District Judge that neither he nor his party seeks/ sought any action against the Hon'ble Judge and the deponent is willing to apologize to the Hon'ble Judge if she got an impression that the deponent hard crossed a line.
That the deponent wants to assure this Hon'ble Court that he would never do anything in future that would hurt the dignity of any Court and the judiciary, especially the lower judiciary.
That the deponent is willing to take any further steps that this Hon'ble Court deems necessary and appropriate for the satisfaction of this Hon'ble Court that he never intended to interfere with the process of the Court or impugn the dignity or independence of the judiciary.
BABAR SATTAR, J.---I have had the pleasure of reading the judgment authored by my learned brother Justice Athar Minallah, C.J. I agree with the conclusion drawn by him that the alleged contemnor, Mr. Imran Ahmed Khan Niazi ("Imran Khan"), is not liable to be convicted or punished for contempt of court and the show-cause notice issued to him ought to be discharged. But I feel the need to document the reasons that have prevailed with me for reaching such conclusion.
2. The relevant facts have been dealt with in detail by learned brother, Justice Athar Minallah, C.J., and need not be restated. I will only mention the facts essential to give this note context. These contempt proceedings were initiated in relation to a speech ("Offending Speech") made by Imran Khan, Chairman, Pakistan Tehreek-e-Insaf ("PTI") at a public rally on 20.08.2022. On the note initiated by the Registrar of this Court, the Hon'ble Acting Chief Justice constituted a three-member bench. This bench in order dated 23.08.2022 determined that the Offending Speech was prima facie contemptuous, being in relation to a matter that was sub-judice and an attempt to intimidate a Judge and thereby obstruct and interfere with the administration of justice.
Consequently, a notice was issued pursuant to section 17 of the Contempt of Court Ordinance, 2003 ("Ordinance"), to Imran Khan to show cause as to why proceedings for criminal and judicial contempt may not be initiated against him in terms of section 3 read together with section 6 of the Ordinance.
3. In its order dated 23.08.2022 the three-member bench recommended that an even larger bench be constituted for hearing the matter. Pursuant to section 19 of the Ordinance an appeal against an original order in a contempt matter passed by a Division Bench or larger bench of the High Court lies to the Supreme Court. Given that the bench constituted to hear the matter was already a three-member bench, no remedy of appeal lay before another bench of this Court. Once the bench had determined that the Offending Speech was prima facie contemptuous, the bench was cognizant of the fact that the alleged contemnor was the Chairman of one of the largest mainstream political parties and his conviction for contempt of court could also invite penal consequence under Article 63(1)(g) of the Constitution. The conviction of the Chairman of a mainstream political party and a former Prime Minister is naturally a question of public importance. And the Offending Speech was somewhat of a charge-sheet against the judiciary. It was therefore found to be in the interest of justice that the largest possible available bench that could hear the case be constituted so that the judgment rendered reflected the collective wisdom of the Court and inspired public confidence in the transparency of the proceedings.
4. The Hon'ble Chief Justice then constituted a five-member bench, which considered the response filed by Imran Khan on 3I.O8.2022 and found it wanting. The response filed by Imran Khan was a provisional response together with a prayer that permission be granted to file a more comprehensive response in the event that the Court was not minded to discharge the show-cause notice dated 25.08.2022. An opportunity was thus provided to file more comprehensive response within a period of seven days and the Court also appointed Mr. Munir A. Malik, Sr. ASC, Mr. Makhdoom Ali Khan, Sr. ASC and Pakistan Bar Council as amici curiae. The Court heard arguments by the learned counsel for Imran Khan, the learned Attorney General as well as the arguments furnished by the learned amici. The details of the arguments are summarized in the opinion of my learned brother, Justice Athar Minallah, C.J. After hearing the arguments, the Court did not find the supplementary response satisfactory either and adjourned the matter to 29.09.2022 for framing of the charge against Imran Khan. On 29.09.2022, at the very outset, Imran Khan sought permission to make a statement, which was granted. His submissions were recorded in the order passed on the said date as follows: He submitted that his 26-year struggle was for the rule of law, respect and independence of judiciary and no political leader other than him spoke of rule of law in every public gathering. He stated that he realized during the proceedings that he may have crossed a red line. He stated that he never intended to threaten the Hon'ble Judge of the District Court and that his intention behind his statement was to refer to legal action. But he wanted to assure the Hon'ble Judges of this Court that he was willing to clarify before the Hon'ble Judge of the District Court that neither he nor his party sought any action against the Hon'ble Judge of District Court and that he would willingly apologize to the Hon'ble Judge if she felt that the respondent had crossed a line. He wanted to assure this Court that he would never do anything in future that would hurt the dignity of the Court and the judiciary and especially the lower judiciary. He lastly submitted that he was willing to take any further steps that this Court deemed necessary to satisfy this Court that he had never intended to interfere with the process of the court or impugn the dignity or independence of the judiciary.
5. Prima facie satisfied with the apology rendered by Imran Khan in person, the Court directed him to file an affidavit in support of his submissions for the consideration of the Court. He then filed an affidavit the content of which is also reproduced in the judgment of my learned brother, Justice Athar Minallah, C.J.
6. The Offending Speech was made in a public gathering held in F-9 Park Islamabad in the backdrop of a vote of no confidence in the National Assembly resulting in replacement of the PTI- led government by a government of allied parties under the banner of Pakistan Democratic Movement ("PDM"). After his removal from the office of Prime Minister of Pakistan, Imran Khan alleged that the removal of his government was a consequence of a foreign conspiracy, executed by aiders and abettors in Pakistan. He initiated a movement backed by public protest to seek an end of the PDM government followed by early national elections. He also alleged as part of his public speeches that the leaders and supporters of his party were being subjected to illegal treatment to suppress their criticism of and protest against the sequence of events that led to the establishment of the PDM government. It was in this backdrop that he made the Offending Speech on 20.08.2022.
7. A large portion of the Offending Speech was focused on the manner in which illegal and unconstitutional means were being used to subject citizens of Pakistan to 'slavery'. It focused on what Imran Khan believed to be torturous treatment, meted out to Mr. Shahbaz Gill, former Special Assistant to Prime Minister Imran Khan, who had been arrested on criminal charges and was in State custody. It was in this backdrop that the order of the learned Additional Sessions Judge to grant further physical remand of Mr. Gill to police authorities that Imran Khan threatened the learned Additional Sessions Judge, declared that she ought to be ashamed of herself, and claimed that the bail application of Mr. Gill was rejected by the learned Additional Sessions Judge and request for physical remand allowed despite it being in the court's knowledge that Mr. Gill was being subjected to torture. The Offending Speech was made at a time when the issue of Mr. Gill's remand and alleged torture was sub-judice before this Court and Imran Khan had declared his intention to agitate the matter before higher judicial forums.
8. While taking cognizance of the matter, this Court formed a tentative opinion that in the narrative being cultivated by Imran Khan through his public speeches, including the Offending Speech, he had projected a member of the district judiciary as having refused the bail application of Mr. Gill and granted his physical remand w the police as the surreptitious act of a proxy to a id actors within the State seeking to exercise State's police powers in an unconstitutional and illegal manner in wanton disregard of the fundamental rights of those at the receiving end of such action (like Mr. Gill and other supports of PTI). In doing so Imran Khan alleged that the learned Additional Sessions Judge was aware of the torture being meted out to Mr. Gill and imputed dishonest motives to the learned judge for the manner in which she exercised her judicial authority. While imputing such malevolent motive to the learned Additional Sessions Judge, Imran Khan also threatened punitive action. In the larger narrative being framed by Imran Khan through such speeches, the Judiciary was projected not as an independent arbiter of the law and the Constitution, endowed with the responsibility to uphold the fundamental rights of citizens. But as a surrogate of malfeasant forces within the State pursuing an unconstitutional and nefarious agenda of imposing an illegitimate government upon the people of Pakistan through exercise of its judicial powers to further such agenda.
9. It was in this background that this Court formed the view that the words used in relation to the learned Additional Sessions Judge were an attempt to intimidate the Judge in particular and the judiciary in general, especially other District Court Judges who would be seized of cases involving PTI leaders and supporters. It was an attempt to secure a favorable verdict in legal proceedings involving Mr. Gill, whose case was sub judice before this Court, and in case involving other members and supporters of PTI against whom criminal charges had been framed by the State.
This was tantamount to obstructing the administration of justice within the meaning of section 2(b) of the Ordinance read together with sections 3 and 6 of the Ordinance, that dealt with criminal contempt. This Court also formed a tentative view that the Offending Speech amounted to an attempt to obstruct the process of the court within the meaning of Article 204(2)(a) and (c) of the Constitution. The Offending Speech and the larger narrative nurtured by Imran Khan, as manifest in the Offending Speech, was intended to bring the judicial authority and administration of law into disrepute, hatred and ridicule within the meaning of Article 204(2)(b) of the Constitution and section 3 read together with section 2(c) of the Ordinance, which amounted to judicial contempt.
10. While forming such tentative view this Court was cognizant of the checkered constitutional history of our country whereby usurpation of constitutional authority by military dictators had in the past been endorsed by the Judiciary in the name of necessity. Such history is often readily referenced by political parties, on the receiving end of an unfavorable judicial verdict, to impugn the integrity of present-day Judiciary and question its ability to protect and defend the Constitution as required by the oath sworn by judges of constitutional courts. The larger concern of the Court was therefore reliance on public memory of unjustifiable verdicts condoning martial- laws in an attempt to infer that the Judiciary was continuing to act as a proxy of those who sought to frustrate the constitutional order and rule of law in Pakistan. And that the decision in question rendered by the learned Additional Sessions Judge was a manifestation for such role being played by the Judiciary in the present day. Notwithstanding the inglorious constitutional history of Pakistan, under the Constitution, the Judiciary is an institution bestowed with the responsibility to preserve, protect and defend the Constitution and constitutes the mechanism for enforcement of fundamental rights of citizens. This is why the Judiciary has not been defined as part of the State by Article 7 of the Constitution in relation to fundamental rights and principles of [policy, as the Judiciary is the arbiter of last resort in any dispute between citizens and the State, or inter se state institutions. In the event that the public loses faith in the ability of the Judiciary to act as an independent arbiter of the law and as the ultimate grievance redressal mechanism within the State, the consequence would be a grave threat to the constitutional order because there would remain no institution capable of determining the legality and legitimacy of actions taken by the State or by contesting groups and parties within the polity.
11. Pakistan is in the throes of polarization with rival political parties finding it hard to employ discussion and debate within the executive branch and the legislative branch of the State to resolve their disputes in a year leading up to general elections. If the Judiciary were also denuded of its ability to resolve disputes between the State and citizens or between rival political parties, there would remain no institution capable of issuing declarations of legality within the four-corners of the Constitution. In this context, any attempt by a political actor to pressurize and intimidate the judiciary into producing favorable decisions, and bringing the administration of law into disrepute and the Judiciary into hatred or ridicule could not be shrugged aside as being of no consequence.
It was in these circumstances that the Court chose not to exercise restraint but employ its contempt powers under Article 204 of the Constitution read together with the Ordinance, which this Court does with extreme reluctance.
12. The basic questions that arise for our consideration in this matter are as follows:
(1) Is Imran Khan culpable for making the offending Speech?
(2) If the Offending Speech amounts to committing contempt of Court, is Imran Khan liable to be convicted and punished?
(3) Does the apology tendered by Imran Khan, together with a defence of his actions, qualify for acceptance under section 5(2) of the Ordinance?
13. This Court is vested with power to punish a contemnor under Article 204 of the Constitution and the statutory framework currently applicable to contempt proceedings is prescribed in the Ordinance. Categories of contempt reflected in Article 204 of the Constitution are included in section 3 of the Ordinance that defines contempt of Court. The definition of civil contempt, criminal contempt and judicial contempt are provided in sections 2(a), 2(b) and 2(c) of the Ordinance, respectively. Section 6 of the Ordinance further dwells on the concept of criminal contempt.
Likewise, sections 11 and 12 delineate the manner in which cognizance is to be taken of judicial contempt and civil contempt, respectively. Section 7 provides that cognizance of criminal contempt can, inter alia, be taken by the High Court suo motu. Likewise section 11 provides that a High Court can take cognizance of a case of judicial contempt on its own initiative.
14. In the instant matter the Court treated the Offending Speech as prima facie falling within the domain of criminal and judicial contempt. And in exercise of powers under sections 7 and 11 of the Ordinance the Hon'ble Acting Chief Justice at the time constituted a three-member bench to hear the matter, which was subsequently reconstituted as a five-member bench headed by the Hon'ble Chief Justice, as explained in the initial part of this opinion. The Offending Speech involved the personalized criticism by Imran Khan of a learned Additional Sessions Judge, Islamabad, and therefore section 9 of the Ordinance that deals with the personalized criticism of a judge is relevant. Section 9(1), in relevant part, provides the following:
9. Personalized criticism.---(1) subject to the provisions of this Ordinance, personalized criticism of a specific judge, or judges, may constitute judicial contempt save and except true averment if made in good faith and in temperate language in a complaint made,--
(a) to the administrative superior of a judge of a subordinate court;
(b) to a Provincial Government;
(c) to the Chief Justice of a High Court;
15. Section 10 likewise provides for fair comment and states the following:
10. Fair comments. The fair and healthy comments on a judgment involving question of public importance in a case which has finally been decided and is no longer pending shall not constitute contempt: Provided that it is phrased in temperate language and the integrity and impartiality of a Judge is not impugned.
16. Section 15 of the Ordinance provides that "no person shall be guilty of contempt of court for making any statement... pertaining to any matter which forms the subject of pending proceedings, if he was not aware of the pendency thereof." Likewise, section 16 protects certain statements including, "a true statement without intent to scandalize a judge regarding his conduct in a matter not connected with the performance of his judicial functions."
17. In the Offending Speech Imran Khan threatened punitive action against a judge in a well- attended political gathering. The language used was not temperate and it did not constitute a complaint to an administrative superior of the judge, to the Provincial Government or to the Chief Justice of the High Court. Such criticism was therefore not protected under Section 9 of the Ordinance. The Offending Speech did not constitute fair comment. It impugned the 'integrity and impartiality of the judge. The Offending Speech itself reflected knowledge of the fact that judicial proceedings in relation to the custody of Mr. Gill were pending adjudication and Imran Khan expressed his intention to raise the matter further before higher judicial forums. Consequently, section 15 of the Ordinance affords no defence to Imran Khan in view of the content of the Offending Speech. Likewise, in the response filed, nothing was placed on record to establish that there was a factual basis to the assertion that the learned judge while being aware of the fact that Mr. Gill had been tortured had granted his further physical custody to police authorities. It may have been Imran Khan's personal belief that Mr. Gill had not been treated well while in police custody. However, there was certainly no proof presented before the Court that the learned Judge being attacked by Imran Khan had knowledge that Mr. Gill had been tortured. The Offending Speech was therefore not protected as a true statement within the meaning of section 16(iii) of the Ordinance and it was certainly speech aimed at denouncing the judge and impugning her integrity in connection with the performance of judicial functions.
18. The Offending Speech was not denied in the preliminary or supplementary responses to the show-cause notice. The responses sought to explain the context of the Offending Speech to establish that the intention of Imran Khan was not to commit contempt of court or to bring the learned Judge in question or the Judiciary into hatred or disrepute. It is in this context that the apology tendered by Imran Khan in the court and subsequently supported by an affidavit was to be taken into consideration. The consideration. of an apology is dealt with under section 5(2) of the Ordinance, which states the following:
5. Punishment,
(2) A person accused of having committed contempt of court may, at any stage, submit an apology and the court, if satisfied that it is bona fide, may discharge him or remit his sentence.
Explanation. The fact that an accused person genuinely believes that he has not committed contempt and enters a defense shall not detract from the bona fides of an apology. (The underlining is ours]
19. The provision for consideration of an apology has been placed within section 5 of the Ordinance that deals with the punishment for contempt of court. Section 5(2) of the Ordinance provides that an accused/contemnor who can submit an apology. "at any stage" of the proceedings. It provides that the court may discharge an alleged contemnor or remit his sentence upon submission of an apology if the court is "satisfied that it is bona fide". And the explanation to section 5(2) explicitly provides that a right of an accused/contemnor to enter a defence "shall not detract from the bona fides of an apology".
20. The test for consideration and acceptance of an apology was laid down by the august Supreme Court in Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (1998 PLD SC 823). The fundamental requirements of an apology for contempt were described as follows:
(a) The apology must be offered at the earlier stage of the contempt proceedings and may not be postponed till fag-end of the proceedings;
(b) The apology must be unconditional, unreserved and unqualified;
(c) The apology should not only appear but must also satisfactorily represent sincere and genuine remorse and should not be half-hearted or mere formality;
(d) The contemnor should not attempt to justify his conduct.
The test laid down in Syed Masroor Ahsan has then been cited with the approval by the august Supreme Court in subsequent cases. And one of the questions that emerges in view of the test laid down in Syed Masroor Ahsan therefore is whether an apology laced with the defence falls foul of the requirement that the contemnor must not attempt to justify his conduct. And further that the apology must be unconditional, unqualified and unreserved.
21. To dwell on the matter, it is important to consider the statutory history of the law of contempt.
The earliest law relating to contempt proceedings in Pakistan was the Contempt of Court Act, 1926, section 3 of which provided that "the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court...". The application of section 3 of the Contempt of Court Act, 1926, came before the Federal Court in S. Israr Hussain v.
The Crown (PLD 1954 FC 313) in which Justice A. R. Cornelius in his opinion explained that section 3 granted certain latitude to the court with respect to the nature and timing of the apology. He used the term "unconditional apology" to describe the situation where "a contemnor surrenders himself unconditionally to the judgment of the court." He explained that an apology which may not be to the satisfaction of the court would be one that was rendered "after every conceivable defence has been taken, adjudicated upon and repelled." While the word 'unconditional apology' was not used in section 3 of the Contempt of Court Act, 1926, it was the use of the word 'unconditional' in the opinion of Justice A.R Cornelius that subsequently became part of the jurisprudence in relation to contempt law. The Contempt of Court Act, 1976, replaced the Contempt of Court Act, 1926. Section 4 of the Contempt of Court Act, 1976, without mentioning the word apology, provided that, "on being satisfied that the accused, whether after defending himself or without offering any defence, has purged himself of the contempt of Court, the Court may discharge the accused or remit his sentence." Section 4 of the Contempt of Court Act, 1976, thus included the concept of an accused purging himself after the alleged contempt had been committed. The subsequent jurisprudence reflects that the conduct of an alleged contemnor after the action attracting the application of contempt law has always been taken into account by constitutional courts to determine whether or not the alleged contemnor was liable -to be punishment or whether his subsequent conduct reflected remorse and was purgatory and thus curative. In Federation of Pakistan v. Yousuf Ali Khan (PLD 1977 SC 236) the august Supreme Court discharged a notice against the alleged contemnor not only because he tendered an unconditional apology, but also because he withdrew the offending remarks firmly. In Zahur Elahi v. Mr. Zulfiqar Ali Bhutto (PLD 1975 SC 383) the august court found that the then Prime Minister had not committed contempt of court in a speech that he had made. What prevailed with the august Supreme Court amongst other factors was that the alleged contemnor had himself stated publically in a subsequent speech that he did not intend to show any disrespect to the court. In Habibul Wahhab Alkheiri v. Abdul Wall Khan (PLD 1978 SC 85), Khan Abdul Wali Khan was alleged to have committed contempt in passing derogatory remarks against the Supreme Court in a speech delivered before members of Bar Associations of Karachi and Rawalpindi. In this case too, the august Supreme Court took into account the press statement issued by Khan Abdul Wali Khan explaining the circumstances in which the speeches were made and affirming his respect and regard for the superior judiciary. While the speeches were found to fall foul of contempt law, in view of subsequent conduct and the alleged contemnor's affirmation before the court that he had no intention of maligning the court or attributing motives to any judges, the notice issued to Khan Abdul Wali Khan was discharged.
22. In 1980 the august Supreme Court framed the Supreme Court Rules, 1980 ("Supreme Court Rules"), in exercise of its powers under Article 191 of the Constitution. Order XXVII of the Supreme Court Rules deals with proceedings in relation to contempt of court and rule 10 of Order XXVII states the following:
10. If at any time during the pendency of the proceedings under this Order or thereafter but before the execution of the sentence, the respondent tenders unqualified apology, the Court may consider such apology and make such order as it considers fit.
The Supreme Court Rules constitute the only legal instrument in force in Pakistan that uses the term "unqualified apology". The Rules have been framed to regulate the practice and procedure of the august Supreme Court. The High Courts are empowered pursuant to Article 202 of the Constitution to frame their own rules to regulate their practice and procedure. The scope and applicability of Order XXVII, Rule 10 of the Supreme Court Rules and the requirement of tendering an unqualified apology whet read together with the explanation under section 5(2) of the Ordinance that provides for a right to enter a defence while also rendering an apology is not a matter before this Court. It is up to the august Supreme Court to interpret how the requirement of Order XXVII, Rule 10 is to be read together with section 5(2) of the Ordinance, which provides that the right of an alleged contemnor to furnish a defence shall not create a presumption that the apology is not bona fide. The test for consideration and acceptance of an apology as specified in Syed Masroor Ahsan was prior to the promulgation of the Ordinance and such test makes sense in view of the language of Order XXVII, Rule 10 of the Supreme Court Rules requiring the tendering of an unqualified apology. The interpretation of section 5(2) and especially the explanation thereunder has not been undertaken by the august Supreme Court in any subsequently judgment. In the context of acceptance of an apology, the judgments in Talal Ahmed Chaudhry v. State (2019 SCMR 542), Contempt Proceedings against Nehal Hashmi (2018 SCMR 556) and Ch. Iftikhar Ahmed, I.G., Islamabad v. The State (2018 SCMR 1385) are also relevant. The view rendered by Justice A.R. Cornelius in S. Israr Hussain that an apology rendered as a last ditch effort after taking up every conceivable defence cannot be treated as bona fide apology has remained good law.
23. In the cases of Talal Ahmed Chaudhry, Nehal Hashmi and Chaudhiy Iftikhar Ahmed the apologies rendered at the fag-end of the proceedings were treated as an effort to avoid a conviction and not a bona fide expression of regret or remorse. In Contempt Proceedings against Nehal Hashmi, the august Supreme Court took into account the fact that the unconditional apology had been tendered seven months after the commencement of the proceedings and the timing of its submission was treated as a manifestation of it being an afterthought. Justice Asif Saeed Khan Khosa observed that the timing of the apology "impinges upon bona fide of his apology and, thus, the same has not been found to be meriting acceptance." Similarly, in the case of Chaudhry Iftikhar Ahmed the august Supreme Court observed that the alleged contemnors had "deferred the submission of unconditional apologies till the charge was framed against them" resulting in the court rejecting the apologies, which were not considered as an expression of "sincere and genuine remorse".
24. Given that the Ordinance is a legislation subsequent to the law laid down in Syed Masroor Ahsan, the test laid down in Syed Masroor Ahsan for considering and accepting an apology would therefore have to be applied in view of express statutory Language in section 5(2) of the Ordinance. The test laid Gown in Syed Masroor Ahsan is essentially a test for determining the bona fides of an apology. To the extent that section 5(2) of the Ordinance allows an alleged contemnor to (i) submit an apology at any stage, and (ii) to enter a defence while also making an apology, I am of the view that the mere fact that an alleged contemnor seeks to explain the context of actions that attract contempt proceedings will not be a basis to conclude that the apology accompanying such explanation and defence must be rejected for lacking bona fides. While section 5(2) provides that an apology may be rendered at any stage, in view of the law laid down in S. Israr Hussain and reiterated in Talal Ahmed Chaudhry, Nehal Hashmi and Chaudhry Iftikhar Ahmed, an apology tendered at the fag-end of judicial proceedings in a contempt matter, where the prospect of a conviction has crystalized, would be deemed to be an afterthought and not an expression of "sincere and genuine remorse". However, to impose a requirement of furnishing an unconditional apology or an apology without any explanation or justification would not sit well with the explicit text of section 5(2) of the Ordinance and the explanation provided therein. Such requirement would also militate against the right to fair trial and due process guaranteed by Article 10-A of the Constitution. Such requirement puts an alleged contemnor between the rock and a hard place. It requires the alleged contemnor to not furnish an explanation for his conduct and admit to having committed contempt. That in turn means that he has forsaken his right to demand a trial. And if the court rejects such apology, the contemnor can be convicted and punished forthwith. It was probably to address this conundrum that section 5(2) of the Ordinance explicitly provided that the entering of a defence and provision of an explanation by an alleged contemnor will not detract from the bona fides of his apology.
25. The discussion above answers the third question raised in para 12 above regarding apology.
The test for consideration and acceptance of an apology under section 5(2) of the Ordinance is the satisfaction of the court that the apology is bona fide in view of the fact and circumstances of the case. The apology rendered in the instant case was accompanied with an explanation of the circumstances in which the Offending Speech was made and the intent of Imran Khan in issuing a warning to the learned Additional Sessions Judge. The apology was not unconditional in a sense that the alleged contemnor did not accept his guilt and place himself at the mercy of the court. But in terms of timing the apology was rendered after the court by order dated 08.09.2022 found the supplementary response filed by Imran Khan unsatisfactory and prior to the framing of the charge.
In the apology made to the court, Mr. Imran Khan expressed his realization that he "might have crossed red-line while making public speech on 20.08.2022", and that "he never intended to threaten the Hon'ble judge of the District Court and that there was no intention behind the statement to take an action other than a legal action." He further stated that he wished to "explain and clarify to the Hon'ble Sessions Judge that neither he nor his party sought any action against the Hon'ble Judge", and that "the deponent is willing to apologize to the Hon'ble Judges..." He further assured this Court that "he would never do anything in future that would hurt the dignity of any court and the judiciary, especially the lower judiciary", and that he "is willing to take any further steps that this court deems necessary and appropriate for the satisfaction of this Hon'ble Court and that he never intended to interfere with the process of the Court or impugn the dignity or independence of judiciary". After making the statement before the court which was made part of the affidavit sworn by Imran Khan and filed before the Court, he also visited the court of the learned Additional Sessions Judge within the District Courts complex. She was not present in court at the time but Imran Khan conveyed to the Reader of the Court that he had appeared to make an apology to the learned Additional Sessions Judge. The appearance of Imran Khan before the Additional Sessions Court was widely reported in the media as well. It was in these facts and circumstances, including Imran Khan's recognition of his culpable speech, together with an apology, expression of remorse and a representation to ensure in future that his actions do not undermine the dignity of the court and especially lower Judiciary that the apology rendered was taken into account and was found satisfactory by this court. The primary concern of the court while initiating proceedings against Imran Khan was that it is a solemn duty of this court, which exercises supervisory jurisdiction over Islamabad District Courts, to ensure that judges of the district judiciary are able to discharge their judicial functions without considerations of fear and favour and without anyone attempting to intimidate them or interfering with the process of the court.
26. Let us now proceed to answer the first two questions framed in Para 12 i.e. whether the alleged contemnor's conduct was culpable, and whether he was liable to be convicted and punished.
Culpability of Mr. Imran Khan's conduct has already been discussed in Para 17 above. It has already been observed that the Offending Speech amounted to an attempt to intimidate a judge as it included a threat of punitive action made in a public gathering. The Constitution guarantees the right of Tree speech under Article 19 of the Constitution. But such freedom is subject to the limitation that the right to freedom of speech and expression cannot be exercised in a manner that amounts to contempt of court. The speech of a popular leader and the head of a mainstream. political party can become the trigger for action inciting his supporters and such threats can become self-executory. The right to free speech does not protect hurling abuse on judges discharging judicial functions of their offices. A party aggrieved by a judicial verdict cam-impugn the verdict before an appellate forum and also file a complaint made in good faith using temperate language before an administrative superior of the judge, should that be advisable in view of objectionable conduct of the judge, as provided in section 9 of the Ordinance.
27. The law of contempt backed by Article 204 of the Constitution and the provisions of the Ordinance reflect that the legislature has determined in its wisdom that speech, unless in temperate language and unless its content does not impute illegal motives to a judge and does not impugn the integrity and impartiality of the judge, would amount to contempt of court. The justification furnished by Mr. Imran Khan that the warning issued to the learned Additional Sessions Judge was in relation to initiation of legal action does not help his case. Section 9 of the Ordinance clearly provides that personal criticism of a judge must be made in good faith and in temperate language to the administrative superior of the judge or the Chief Justice of the High Court. No matter what the grievance, personal criticism of a judge cannot acquire the form of threats hurled from the bully pulpit at a political gathering. Similarly, lmran Khan imputed a malign motive to the judge when he insinuated that the remand of Mr. Shahbaz Gill had been granted despite knowledge that he had been tortured and thus impugned the integrity and impartiality of the learned judge. In the context in which Imran Khan made the Offending Speech he insinuated that the Judiciary was working hand-in-glove with those conspiring to upend constitutional order and rule of law in Pakistan. I, therefore, find that the Offending Speech qualifies as criminal contempt as well as judicial contempt within the meaning of sections 3 and 6 of the Ordinance read together with sections 2(b) and 2(c) of the Ordinance. The answer to the first question therefore is that the Offending Speech renders Imran Khan culpable for committing contempt of court.
28. Let us now turn to the second question as to whether Imran Khan is liable to be convicted and punished. For such purpose section 5 of the Ordinance needs to be read together with section 18 of the Ordinance. Section 5(1) states the following:
5. Punishment.-- (I) Subject to subsection (2), any person who commits contempt of court shall be punished with imprisonment which may extend to six months simple imprisonment, or with fine which may extend to one hundred thousand rupees, or with both.
Section 18 of the Ordinance states the following:
18. Substantial detriment.--(1) No person shall be found guilty of contempt of court, or punished accordingly, unless the court is satisfied that the contempt is one which is substantially detrimental to the administration of justice or scandalizes the court or otherwise tends to bring the court or Judge of the court into a hatred or ridicule.
(2) In the event of a person being found not guilty of contempt by reason of subsection (1) the Court may pass an order deprecating the conduct, or actions, of the person accused of having committed contempt.
(3) Subject to the provisions of this Ordinance, truth shall be a valid defence in cases of contempt of Court.
29. The interpretation of section 18 came before the august Supreme Court in Contempt proceeding's against Syed Yousaf Raza Gillani (PLD 2012 SC 553). Given that the key consideration before the Court is whether Imran Khan is liable to be convicted and punished for contempt, let us reproduce at some length the interpretation and opinion of the august Supreme Court in relation to the said provision in the case of Syed Yousaf Raza Gillani.
"These provisions of the Contempt of Court Ordinance clearly show that despite his culpability having been established, a Court seized of a matter of contempt is not to hold the offender guilty or punish him for every trivial contempt committed and it is only a grave contempt having the effects mentioned in Section 18(1) that may be visited with a finding of guilt or punishment. It is important to note in this context that the satisfaction of the Court mentioned in section 18(1) regarding gravity of the contempt is to be adverted to by it after commission of the contempt is duly established and such satisfaction of the Court is neither an ingredient of the offence nor a fact to be proved through evidence. In our considered opinion such satisfaction is purely that of the Court concerned keeping in view the nature of the contempt found to have been committed, its potential regarding detrimental effect upon administration of justice or scandalizing the Court and its tendency to bring the Court or the Judge into hatred or ridicule. At such stage the contempt of Court attributed to the offender already stands established and assessment of the tendency of the contempt to possibly create the above mentioned detrimental effects is thereafter to be undertaken by the Court for its own satisfaction in order to decide whether to convict or punish the offender or not and such satisfaction based upon judicially assessed possible effects is not to be based upon proofs or evidence to be produced during the trial.
However, if the Court is not satisfied about the above mentioned detrimental effects then despite the contempt having been established and proved, it may nor convict or punish the offender and fluty resort to merely deprecating the conduct or actions of the accused in terms of Section 18(2) of the Ordinance. We may also add that the satisfaction of the Court contemplated by Section 18(1) of the Ordinance is the minimum threshold to be crossed and there is no limit upon a Court regarding not recording satisfaction in respect of any graver detriment or tendency made possible by the conduct or actions of an offender."
30. In view of the interpretation of section 18 as provided in Syed Yousaf Raza Gillani as well as the text of sections 18(1) and 18(2) read together with section 5 of the Ordinance what emerges is that section 5(1) prescribes that the ingredients of the offence of contempt of court, include actus reus (i.e. the action constituting civil, criminal or judicial contempt as defined in the Ordinance) and mess rea in relation to criminal and judicial contempt (i.e. whether the action constituted an attempt or was accompanied by the intent to indulge in conduct that fell within the definition of criminal or judicial contempt). This is also evident from the definition of criminal contempt as provided under section 2(b) of the Ordinance which is defined to mean the doing of an act with intent to, or having the effect of, obstructing the administration of justice". Thus, even if there is no intent to indulge in criminal contempt, where the effect of the act is such that it places the act within the definition of contempt of court, intent becomes irrelevant. The question of civil contempt is not before the Court. (Civil contempt deals with wilful disregard of an order of the court. The use of the word 'wilful' envisages the idea that the alleged contemnor knowingly and willing disregarded a court's order and it is in this context that knowledge of the order becomes relevant in determining whether or not the alleged contemnor possessed the necessary intent constituting civil contempt. This view was adopted by the august Supreme Court in Ahmed Shah v. State (PLD 1967 SC 42)).
31. The determination of requisite intent in relation to criminal or judicial contempt is to be undertaken on an objective basis. The alleged contemnor may claim that his actions were not backed by mens rea or the intent to commit contempt or may even be willing to lead evidence in support of his actual intent at the relevant time. The test applicable for purposes of construing intent is however not subjective, but is objective. The manner in which the question of mens rea or intent is to be considered in a contempt matter was elucidated by Justice A.R Cornelius in Sir Edward Snelson, KBE Secretary to the Government of West Pakistan Ministry of Law v. The Judges of High Court of Pakistan, Lahore and others (PLD 1961 SC 237). The matter before the august Supreme Court was a speech made by Sir Edward Snelson, Secretary to the Government of Pakistan, to civil servants, which was fond to be contemptuous. Justice A.R Cornelius explained the concept of intent in a contempt matter as follows: "The meaning in which the words were intended by the author to be understood is immaterial.
Again, words may be on the surface innocent, but they may carry a secondary or special sense, regard being had to the occasion, to the quality of persons to whom they are addressed, and to the circumstances affecting their meaning. In such a special sense they may have a disparaging effect even though on a plain reading no defamation appears. Therefore, to avoid the imputation of disparagement, it is clear that not only must the words in their natural and ordinary meaning be innocent, but there should be no secondary sense imported by circumstances which would bring them within the mischief of defamation.
The case is thus somewhat different from that of an accused person under the criminal law which presumes his innocence, and places the entire burden upon the accuser to establish/ his accusation. Here, the words by themselves place the onus upon the person charged, provided that they are prima facie defamatory, or special circumstances are shown, which give them a disparaging character. It can be easily seen that where the disparagement is of a High Court, this principle would require to he applied with even greater strictness than in the case of a private individual. That is because of the paramount importance which must be given by every organ of a civilized Government, in which the administration of justice retained as an integral part of the machinery, to secure the Courts, and iii particular the superior Courts of Record from all attempts to interfere with them in the administration of justice. The power of committal for contempt is given to such superior Courts in order that they may swiftly and summarily perform one of their most important duties which is to protect themselves against wilful disregard or disobedience of their authority, by visiting with prompt punishment any conduct which tends to bring their authority and the administration of justice into scorn or to respect or disregard."
32. In view of laid down in Sir Edward Snelson, as has now been reflected in section 2(b) of the Ordinance within the definition of contempt, the intent of an alleged contemnor is not to be determined by application of a subjective test. The determination of intent is to be undertaken by the court by application of an objective test while considering the effect of the speech or action. It is intent determined in this fashion that constitutes an ingredient of the offence of contempt. Where the act itself is established, the question of grant of any benefit of doubt can therefore not arise.
Where an alleged contemnor denies the actions that have attracted contempt proceedings, he has the right to lead evidence in a fair trial as guaranteed under Article 10A of the Constitution to establish that he did not commit the very act in question. While making such factual determination, the benefit of doubt ought to be given to the alleged contemnor. In the event that the act that attracts contempt proceedings has not been committed by the alleged contemnor, there would arise no question of conviction or punishment. However, once the act itself is established or admitted, as in the present case where the Offending Speech is admitted to have been made by Imran Khan, there is no scope for grant of any benefit of doubt in determining whether or not the alleged contemnor possessed the required mens rea (as held by the august Supreme Court in Sir Edward Snelson). It is the effect of an action that forms an ingredient of the offence of contempt and not the subjective intent of the person at the relevant time. The definition of criminal contempt in section 2(b) augments this understanding of contempt law as it uses "effect" as an alternative to "intent" as an ingredient of criminal contempt. Once the effect places the action within the definition of criminal or judicial contempt, the ingredients of the offence of contempt are satisfied. Section 5(1) provides that a person who commits contempt "shall be punished with imprisonment which may extend to six months simple imprisonment, or with fine which may extend to one hundred thousand rupees, or with both". Section 5(2) provides that a court may accept an apology if it is satisfied that the apology is bona fide. Section 5 is then required to be read with section 18 of the Ordinance, which creates a power to conviction and punishment for contempt.
33. Section 18(1) as interpreted by the august Supreme Court in the case of Syed Yousaf Raza Gilani requires the court to determine whether "the contempt is one which is substantially detrimental to the administration of justice". In other words, a court can determine that the act attracting the provisions of contempt law satisfies the ingredients of the offence of contempt and find the act culpable. However, the court must then consider further whether the effect of the act is such that is substantially detrimental to the administration of justice. Once again, the question of substantial detriment is to be determined by the court itself on an objective basis. Unless after evaluating the effect of the offending act, the court concludes that the effect of the contempt is such that has caused or likely to cause substantial detriment to the administration of justice, the contemnor is not to be convicted or punished. It is thus that section 18(2) provides that where a person is not being convicted and punished on the basis of the determination that the act while being contemptuous was never substantially detrimental to the administration of justice, it may pass a stricture deprecating the conduct of the alleged contemnor. There can of course be no question of deprecating conduct without prior finding of wrongdoing or culpability, which is why the august Supreme Court in the case of Syed Yousaf Raza Gillani held that the requirement of substantial detriment to the administration of justice is not one of the ingredients of the offence of contempt. In other words, section 18(1) and the requirement that the effect of contempt must be such that is substantially detrimental to the administration of justice is a bar against conviction and punishment for contempt and not an ingredient of the offence of contempt.
34. In the present case, I am of the opinion that the Offending Speech satisfies the ingredients of judicial and criminal contempt. The act of making the Offending Speech is admitted. The explanation for the act is unsatisfactory in view of the provisions of sections 8, 9, 10, 15, 16 and 18(3) of the Ordinance. The effect of the act was to intimidate judicial officers, prejudice the process of law and the due course of proceedings in a sub-judice matter, imputation of illegal motives to a judge and impugning the integrity and independence of the judiciary. However, in view of subsequent conduct of the alleged contemnor, including his public speeches reiterating his respect for the Judiciary and his clarification that he never intended to bring the Judiciary into disrepute or to threaten a judge or otherwise affect the outcome of pending proceedings, together with his act of appearing in the court of the learned Additional Sessions to tender an apology and express remorse, I have come to the conclusion that the threat of substantial detriment to the administration of justice has been averted due to such subsequent conduct of the contemnor.
Imran Khan while being culpable is therefore not liable to be convicted or punished in view of section 18(1) of the Ordinance. In view of his subsequent conduct together with the content of his apology I have found that the apology is bona fide as it includes an acknowledgment of wrong doing together with expression of remorse and a representation and promise to not indulge in any act in the future that may tantamount to impugning the dignity and independence of the judiciary.
I would therefore accept the apology within the meaning of section 5(2) of the Ordinance. The tendering of the apology for purposes of section 5(2) of the Ordinance and its content is one of the paramount factors that has led me to conclude that Imran Khan's conduct in relation to which the show cause notice was issued does not remain such that is likely to cause substantial detriment to the administration of justice. The consequence of accepting such apology is that I do not find the need for passing an order deprecating the conduct within the meaning of section 18(2) of the Ordinance, given that the apology itself contains a representation and promise by him to uphold the majesty of laW and the integrity and the independence of the judiciary in future.
35. The raison d'etre of contempt law is not to punish but to deter conduct that interferes with or obstructs justice. Contempt of court is not a strict liability offense. But in determining mess rea on an objective basis, it is the effect that the law focusses on and not the subjective intent of the contemnor. And even where the objectional conduct is deleterious to the authority of the court, unless the effect is quantified and found capable of causing substantial detriment to the administration of justice, the offending act doesn't attract conviction and punishment. The conduct found capable of interfering with and becoming a substantial detriment to the administration of justice will also keep evolving with time. There was a time when the power of contempt used most frequently was to protect judges from being scandalized through personal criticism. Overtime the offense of scandalizing a court and use of contempt power to piotect the dignity of individual judges has attracted the disapproval of the bench, the bar, and the academy alike, even though the offense itself remains on statute books. Similarly, we might evolve to a point of constitutional maturity where allegations regarding the judiciary acting as a proxy for someone seeking to usurp constitutional authority might become inconceivable. Till such time however concocted allegations imputing malevolent motives to individual judges or falsely projecting the judiciary as a surrogate aiding and abetting usurpers in a broadside aimed at garnering partisan support would unfortunately remain capable of interfering with the dispensation of justice.
36. In view of the matter of contempt by Imran Khan being a matter of public importance requiring interpretation of provisions of the Ordinance read together with the law laid down by the august Supreme Court, I felt the need to dwell on the test applicable in relation to an apology as well as ingredients of the offence of contempt and the scope of section 18 of the Ordinance. My opinion with regard to the benefit of doubt due to an alleged contemnor therefore differs from that of my learned brother, Justice Athar Minallah, C.J. Such grant of benefit of doubt is limited to the actus reus and has no role when it comes to determination of intent or effect of actions of a contemnor. I would therefore discharge the notice issued to Imran Khan by giving him the benefit of Section 18(1) that has accrued in view of his conduct subsequent to the issuance of the notice, including the apology before this court and his effort to apologize to the learned Additional Sessions Judge.