1. The Constitution of the Islamic Republic of Pakistan ('the Constitution') has a few distinguishable features. One is that it commences 'In the name of Allah, the most Beneficent, the most Merciful' and its Preamble, a substantive part of the Constitution, stipulates that, 'sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust'.[1] Therefore, at the outset, the Constitution negates autocracy, superiority and exceptionalism while affirming accountability.
2. This matter attends to a cherished fundamental right, freedom of speech and expression and the freedom of the press. Another fundamental right, which may be relevant, is the right to have access to information. Articles 19 and 19A of the Constitution which attend to these rights are reproduced hereunder: '19. Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.'
'19A. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.'
3. The freedom of speech and expression and the freedom of the press, however, are not absolute and unfettered, as Article 19 mentions a few exceptions, including committing contempt of court.
Article 204 of the Constitution describes what constitutes contempt of court, relevant provisions whereof are reproduced hereunder: 204.
'(2) A Court shall have power to punish any person who'
'(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.'
'In this Article, "Court" is meant the Supreme Court or a High Court' (Article 204(1) of the Constitution).
4. The law mentioned in Articles 19 and 204 is the Contempt of Court Ordinance, 2003 ('the Ordinance').[2] The Ordinance governs the powers of the Court with regard to contempt of court and Order XXVII of the Supreme Court Rules, 1980 attends to proceedings in relation to the Contempt of Court.
5. Pakistan was amongst the first countries to have signed the Universal Declaration of Human Rights.[3] Its article 19 states that 'everyone has the right to freedom of opinion and expression' but it too does not permit abusing or insulting anyone. The International Covenant on Civil and Political Rights 1966,[4] while guaranteeing the right to freedom of expression, permits restrictions provided by law including for respect of the rights or reputations of others.[5]
6. On 15 May 2024 Mr. Fesal Vawda, who is a Senator, held a press conference at the National Press Club, Islamabad which was broadcast on a number of television channels. In the press conference he leveled several serious and malicious allegations against the Judiciary, commented on the Judges of the superior courts and spoke about sub judice cases, including those before this Court.
This Court took notice and the matter was numbered as Criminal Original Petition No. 6 of 2024. A similar press conference was held by Mr. Mustafa Kamal, a Member of the National Assembly ('MNA'), the following day on 16 May 2024, at the National Press Club, Islamabad, which was also broadcast live on a number of television channels.
7. Mr. Fesal Vawda and Mr. Mustafa Kamal were issued show cause notices and provided time to submit their explanations/replies. They were also directed to be in attendance before this Court.
Notice was also issued to the Attorney-General for Pakistan, under rule 7(2) of Order XXVII of the Supreme Court Rules, 1980.
8. The Pakistan Electronic Media Regulatory Authority ('PEMRA') was directed to submit recordings of the two press conferences together with their complete transcripts, including of the question and answer session that followed, which PEMRA submitted (Cr.M.A. No. 683/2024).
9. Mr. Mustafa Kamal had at the outset tendered an unconditional written apology (Cr.M.A. No. 682/2024). However, Mr. Fesal Vawda in his reply (Cr.M.A. No. 689/2024) pointed out that obnoxious far more serious contemptuous statements were made about the Chief Justice of Pakistan but he (Qazi Faez Isa, CJ) has ignored them. He also referred to what an Hon'ble Judge had said about him and attributed that his press conference was held at someone's behest. On 5 June 2024 Mr. Fesal Vawda was given an opportunity to reflect and reconsider in the light of Islamic injunctions. A learned Advocate of this Court, Hafiz Arfat Ahmed, who was present in Court volunteered to provide a list of verses of the Holy Qur'an and sayings of Prophet Muhammad (peace and blessings be upon him) with regard to backbiting, hurtful and/or slanderous speech.
10. Mr. Fesal Vawda's subsequent reply (Cr.M.A. No. 895/2024) states that having consulted religious scholars and considered the injunctions of Islam he realizes that he should not have said what he had said and tenders an unqualified apology for having done so.
11. Learned Hafiz Arfat Ahmed has filed a 74 page document (CMA No. 927/2024) which he states is a collection of verses from the Holy Qur'an, hadith and extracts from a book titled Backbiting and its Adverse Effects by Husayn al-Awayishah.[6]
12. The Holy Qur'an forbids scandalizing and slandering - 'Woe to every scandalmonger and slanderer'.[7] Islam advocates peace, harmony and cooperation, and is against all those who feed discord and strife. 'Heed not a slanderer going about with malicious gossip'.[8] The Creator tells us that our words are recorded and we will be held accountable for each and every one of them - 'not a word does he utter which is not recorded by the sentinel attached with him'.[9] And, if another says something scandalous/derogatory which is not true and one repeats it the one repeating is also accountable for it. Allah Almighty says, 'ascertain the truth lest you harm a people unwittingly'.[10] Unfortunately, there are those who either knowingly, negligently or carelessly spread slander.
13. This Court has to ensure to all that the constitutionally prescribed fundamental rights are not denied to them. However, the right to freedom of speech and expression and the freedom of the press in Article 19 does not take precedence over the inviolability of the dignity of persons and of the privacy of the home in Article 14, which incidentally is numerically a prior fundamental right. The exhilarating elixir of free speech and media freedom does not permit slandering anyone, including judges and courts.
14. Disagreement and discord has become all too pervasive and it has permeated into peoples' behavior, ideas and beliefs with the quick, easy and widespread dissemination of falsehoods and slander. The legal tool which is used for recompensing the wronged and imposing heavy financial penalties remains under-developed and it is effectively stymied in Pakistan. Resultantly defamation and spreading lies is not visited upon with consequences which may curtail them.
15. False accusation is a manifest sin[11] and its significance is brought to bear by drawing a powerful similitude, 'Would you like to eat the flesh of your dead brother'.[12] To the question whether, 'We will be brought to account for what we say' the response of Prophet Muhammad (peace and blessings be upon him) was rhetorical, 'Are people thrown onto their faces in Hell for anything other than the harvest of their tongues?'[13] On another occasion he said that no one shall enter Paradise whose neighbor is not safe from the harm of his tongue.[14] Imam Ghazali[15] wrote that, 'To believe in defamation is worse than defamation, as defamation shows the way but belief in defamation gives permission. He who shows the path to a thing is not equal to one who admits it and gives permission. So beware of slanderers and defamers.'[16] The broadcaster of slander, therefore, cannot take refuge in saying that he is not the originator of the slander; the broadcaster must verify the truth or falsehood of the matter. Those who broadcast slander and defamatory material also corrupt those who hear it. Imam Ghazali wrote, 'The Prophet (peace and blessings be upon him) said: The hearer of back-biting is included within the back-biters.'
However, he can be saved 'if the hearer protests by his tongue, he will be exempted from its sin. If he cannot do it, he will think it bad in his mind. If he can shift from that place or change the topic, he will be exempted.'[17]
16. In this age when lies can be globally spread with ease, and cannot be erased, extra care has to be exercised. If this is not done the public sphere is polluted and polarised. Deception and disinformation elbows out decency and truth. Those having the expertise in making lies prevail manage to instil hatred and destroy friendships and families. Lies also undermine the credibility of institutions, and have been known to set the world at war. The potential of harm that is in lies and slander can be undone and conviviality restored by expiation.
17. 'There are two modes of expiation of the sin of back-biting. The back-biter will repent sincerely in mind and be sorry for that. Then he will seek pardon of the back-bited person being very humble.'[18] Imam Ghazali follows this up with a discussion on whether the sin will be expiated if forgiveness is sought or whether for the sin to be expiated a pardon too has to be secured.
However, we need not concern ourselves of this here because both the gentlemen before us realized their mistake and have in humility sought forgiveness and pardon.
18. Mr. Fesal Vawda and Mr. Mustafa Kamal tendered unconditional apologies to this Court in writing. They have also verbally expressed remorse and reiterated their apologies in Court. There is no reason to doubt their sincere retraction and unconditional apologies. Therefore, the show cause notices issued to them are hereby withdrawn. However, if there is any subsequent transgression by them it may be visited upon with consequences.
19. Pursuant to the order dated 5 June 2024 we had issued notices to 34 channels which had broadcast the press conference of Mr. Fesal Vawda and to 28 channels which had broadcast the press conference of Mr. Mustafa Kamal, and had called upon them to submit their explanation/replies within two weeks as to why they should not be proceeded against for contempt of court. In response to the notices learned Mr. Faisal Siddiqui states that he represents 26 channels, as under: Television Channel operated by Cr. M. A. No.
1. Awaz Television Networking (Pvt.) Ltd. 901/2024 2.Big Tree Media (Pvt.) Ltd. 902/2024 3.Sports Star International (Pvt.) Ltd. 903/2024 4.Central Media Network (Pvt.) Ltd. 904/2024 5.Ali Kazi (Pvt.) Ltd. 905/2024 6.ARY Communications (Pvt.) Ltd. 906/2024 7.Jaag Broadcasting Systems (Pvt.) Ltd. 907/2024 8.Muntah-e-Noor Sachal T.V. (Pvt.) Ltd. 908/2024 9.Aurora Broadcasting Services (Pvt.) Ltd. 909/2024 10.M/s Vision Network Television 910/2024 11.Television Media Network (Pvt.) Ltd. 911/2024 12.Recorder T.V. Network (Pvt.) Ltd. 912/2024 13.M/s Iris Communications (Pvt.) Ltd. 913/2024 14.Royal Media Network (Pvt.) Ltd. 914/2024 15.East Films (Pvt.) Ltd. 915/2024 16.Roze (Pvt.) Ltd. 916/2024 17.H.B. Media (Pvt.) Ltd. 917/2024 18.M/s Galaxy Broadcasting Network 918/2024 19.Hum Network Limited 919/2024 20.Airwaves Media (Pvt.) Ltd. 920/2024 21.Interact (Pvt.) Ltd. 921/2024 22.Fun Infotainment SMC (Pvt.) Ltd. 922/2024 23.M/s National Communication Services 923/2024 24.Airwaves Media (Pvt.) Ltd. 924/2024 25.Apna T.V. Channel (Pvt.) Ltd. 925/2025 26.Independent Media Corp. (Pvt.) Ltd. 926/2026
20. Learned Mr. Faisal Siddiqui states that he has filed 'Preliminary Reply' on behalf of the abovementioned channels. However, significantly, not a single one of the documents, categorized as preliminary reply, are signed by a representative of the said television channels. Instead they are signed by Mr. Faisal Siddiqui, Advocate Supreme Court, and Mr. Muhammad Usman Mirza, Advocate-on-Record. Therefore, the same cannot be categorized as replies submitted by the said channels. Nonetheless, and in deference to the learned counsel, we have considered the said preliminary replies. All of them are identical or nearly so, and state that contempt proceedings can only be initiated if 'mal-intent is shown', that it is a 'settled principle of the law of Contempt' to establish 'mal-intent' and to broadcast press conferences is 'in the public interest as it is their right and duty under Articles 19 and 19-A, Constitution, 1973'. In our considered view this explanation prima facie is not justified, and all the more so, when the two gentlemen who had held the press conferences acknowledge that the same constituted contempt of court.
21. If we accept that the said preliminary replies to be a response to the notices it means that the television channels justify the live broadcast of the said press conferences and assume no responsibility for their content, despite the learned Mr. Faisal Siddiqui stating that the contents of one of them did prima facie constitute contempt. Their justification in doing so is that: (a) television channels are not responsible for the content when they broadcast what is said by another, (b) to constitute contempt there must be mal-intent and (c) it is the right and duty of television channels to live broadcast all press conferences.
22. Those operating the said television channels were only issued a notice (and not a show cause notice). However, they have elected not to avail of the opportunity provided to them to reflect, relent and, if they so consider, to apologize. During the hearing it also transpired that even after the making of the contemptuous comments they continued broadcasting and (later) re-broadcast the press conference(s) and/or extracts therefrom. We inquired whether any retraction or apology was broadcast by any of the channels, and it transpired that this was not done. We are not unmindful that being commercial enterprises television channels make money by broadcasting and advertisements.
23. Therefore, we are constrained to issue show cause notices to all 34 channels to show cause as to why they should not be proceeded against for committing contempt of court. The show cause notice to be served through PEMRA. The replies to the show cause notices should be submitted within two weeks. The replies to the show cause notices should state (1) whether the press conferences were preceded with advertisements, (2) whether there were any advertisements during the press conferences, (3) whether upon the conclusion of the press conferences there were advertisements, (4) whether they were re-broadcast and (5) whether extracts therefrom were broadcast and (6) the amounts received in payment for such advertisements. The replies to the show cause notices to be signed by the owner (if there is one) or the largest share/interest holder (by whatever name called) and by the operational head of the television channel.
1. Constitution of the Islamic Republic of Pakistan, Article 2A.
2. Ibid., Article 270AA.
3. United Nations General Assembly resolution 217A proclaimed on 10 December 1948.
4. International Covenant on Civil and Political Rights, 1966, article 19(2), ratified by Pakistan on 23 June 2010.
5. Ibid., article 19(3).
6. Translated by Huda Khattab, published by the International Islamic Publishing House.
7. Al-Qur'an, surah al-Humazah (104) verse 1.
8. Ibid., surah al-Qalam (68) verses 10-11.
9. Ibid., surah Qaf (50) verse 18.
10. Ibid., surah al-Hujurat (49) verse 6.
11. Ibid., surah al-Ahzab (33) verse 58.
12. Ibid., surah al-Hujurat (49) verse 12.
13. Sunan al-Tirmidhi, Abwab al-Iman, Bab Ma Ja' fi Hurmat al-Salah, Hadith No. 2616, transmitted by Mu'adh bin Jabal.
14. Musnad Ahmad, Musnad al-Mukthirin, Hadith No. 6476, transmitted by Anas bin Malik.
15. Abu Hamid al-Ghazali (1058-1111 CE, 450-504 Hijri) who is considered to be the century's mujaddid, a renewer of the faith.
16. Ihya Ulum-id-Din, Chapter on Harms of the Tongue,' quoting Musab bin Jubair.
17. Ibid.
18. Ibid.