1. ANWARUL HAQ, C. J.--In these proceedings under Article 123 of the Constitution in respect of the Publication of a news item in the local edition of the Urdu Daily Nawa-i-Waqt, Lahore, of the 27th of September 1970, we passed a short order on the 3rd of October 1970, convicting and punishing all the five respondents, for reasons to be recorded later in the judgment, as follows :- (1)Respondent No, 1 Ezaz Mahmood was directed to undergo simple imprisonment for six months and to pay a fine in the sum of Rs, 2,000 or in default to undergo further simple imprisonment for two months.
2. (2)Respondent No, 2 Arif Nizami to undergo simple imprisonment for two months and to pay a fine of Rs, 2,000 or in default to undergo further simple imprisonment for two months.
3. (3)Respondent No, 3 Shoab Nizami to undergo simple imprisonment for two months and to pay a fine of Rs, 2,000 or in default to undergo further simple imprisonment for two months.
4. (4)Respondent No, 4 Tahir Asadi to undergo simple imprisonment for one week.
5. (5)Respondent No, 5 Rana Talaat Mahmood to undergo simple imprisonment for one week.
2. We now proceed to state the facts and our reasons for the order which we have already made.
3. In its local (Lahore) edition of the 27th of September 1970, the Urdu Daily Nawa-i-Waqt published a news item relating to High Court Judges under a banner headline covering three columns on the first page. Translated into English, it reads as under :-- "Possibility of disciplinary action against six Judges of the High Courts under the instructions of the Law Minister.
6. Justice Junejo of the Karachi High Court resigns from his office.
7. Wave of indignation and resentment among the lawyers of Lahore.
8. Lahore, 26th September (Staff Reporter Ezaz Mahmood) :- It is learnt from reliable sources that six Judges of the High Courts of East and West Pakistan are being proceeded against on certain allegations. The six Judges to whom these notices have been written have been given the choice either to produce their defence before the Supreme Judicial Council or to resign from their office. It is learnt that Mr. Justice Muhammad Hayat Junejo of the Karachi High Court has resigned from his office.
9. There is a wave of resentment and indignation among the lawyers and they have demanded from the President of the country that he should dismiss the Law Minister, as due to him serious damage has been caused to the judiciary of Pakistan. It will be recalled that in December 1969 all the Judges of the High Courts had submitted declarations of their movable and immovable property to their respective Chief Justices. The Supreme Judicial Council, established under Article 128 of the Constitution, had sent its reports on the 22nd of September to the respective Chief Justices so that all the Judges could be apprised of the objections raised regarding their declarations. The head of the Law Ministry, Mr. A. R. Cornelius, whose wife and children are still residing in England, by presenting the Council's proceedings in an adverse light, had the declarations scrutinised again according to his own wishes and in violation of the clear directions given in this behalf by the Chief Justice of Pakistan Mr. Justice Hamoodur Rahman. And in this manner the Senior Judges of the Lahore High Court Mr. Justic Sardar Muhammad Iqbal, Mr. Justice Karam Elahee Chauhan, Mr. Justice Muhammad Yaqub Ali Khan, Mr. Justice Noorul Arfin, Mr. Justice Maqsoom-ul-Hakeem, Mr. Justice Shaukat Ali and Mr. Justice Muhammad Fazle Ghani Khan etc., were involved.
10. These steps by the Government against the Judges of the Superior Courts on account of various allegations have caused a wave of perturbation among the ranks of the politicians, lawyers and the common people, as these steps tantamount to striking a heavy blow, under a pre-planned scheme, at the prestige of the judiciary which is an important pillar of democracy. These steps will still further embolden the bureaucracy which is being held responsible, in all circles of the country, for all the present ills.
11. Today, the Lahore High Court Bar Association at an emergent meeting severely criticised the Central Law Minister and alleged that the Punjab High Court was deprived of its representation on the Supreme Judicial Council which had been established to investigate the allegations against the Judges. The speakers described the present steps against the Judges as being in the nature of a conspiracy to finish the prestige of the judiciary. They demanded that the steps taken against the Judges should be rescinded, and if this demand is not acceded to, then the lawyers would establish a defence committee in support of justice-loving Judges. And an effort shall be made that the proceedings against the Judges should be in open Court.
12. (Continued on back page)
13. The lawyers expressed great regret over the fact that although the President of Pakistan had once decided that the recommendations of the Chief Justice of Pakistan would not be disregarded in any case, yet Mr. A. R. Cornelius had managed to appoint the Chief Justice of Karachi Mr. Justice Qadeeruddin Ahmad as a member of the Supreme Judicial Council instead of appointing Chief Justice Anwarul Haq as such member. Reaction of the High Court Bar Association 75 percent. of the members of the High Court Bar Association were demanding to know as to what happened to the investigations against those Judges who had acquired, after their assumption of office, sixteen squares of land for only rupees one and a half lacs, although according to the Pakistan People's Party and a prominent lawyer of Lahore the present market value of this land was rupees sixty-four lacs. The conduct of different innocent and guilty Judges was brought under discussion by the High Court Bar Association and questions were asked from the Press Correspondents as to how could a Judge, whose salary after assumption of office was only Rs, 2,80) a month, build a house at a cost of rupees one lac, whereas its present market value was rupees five lacs. The High Court Bar Association also posed the question as to why did the Government not confiscate those bungalows which were constructed during Ayub Khan's regime.
14. The High Court Bar Association drafted a resolution saying that a deputation should wait upon the President of the country to apprise him of all the facts. Majority of the lawyers demanded that the inquiry against the Judges should be held in open Court, and in this connection a defence Committee is being set up."
4. The news was repeated in the two Dak editions of the Paper bearing the date-line 28th of September 1970. It was displayed under the same banner headlines, although not on the first page.
5. On the 28th of September 1970, show-cause notices were issued to Ezaz Mahmood, Staff Reporter, Arif Nizami, Editor, and Shoab Nizami, Printer and Publisher, of the Nawa-i-Waqt, directing them to appear before this Court on the 30th of September 1970. The notices were served on the Staff Reporter and the Editor the same day, i. e., the 28th of September 1970, although the Printer and Publisher, Shoab Nizami, could not be served that day as he was out of Lahore.
15. During the proceedings it came to light that some responsibility also rested on the Acting News Editor, Tahir Asadi, and the Chief Reporter, Rana Talaat Mahmood. Accordingly, they were also called upon to show cause why they should not be punished for contempt.
6. In the local edition of the 29th of September 1970, an apology was published by the management of the Nawa-i-Waqt to the effect that this news was baseless, and that inquiries had revealed that the cases of only two Judges Mr. Justice Shaukat Ali and Mr. Justice Muhammad Fazle Ghani Khan were under consideration with the Supreme Judicial Council. It was added that the management of the Paper wished to offer its unconditional apology to all the Judges of the Supreme Court of Pakistan and the High Court on the publication of this news. The apology was undoubtedly published on the first page, but it was not displayed under the same banner headlines as the original news. The apology was repeated in the two Dak editions bearing the date-line 30th of September 1970, but in these editions it was printed at the bottom of the back page.
7. All the five respondents submitted written statements in response to the notices issued to them, and also made oral statements before the Court. Apart from the Editor Arif Nizami and the Printer and Publisher Shoab Nizami, who are brothers inter se, the respondents appeared to be at cross- purposes with one another, and for this reason there was lengthy mutual cross-examination. We shall have occasion later to advert to this aspect of the matter.
8. Respondent No, 1, Staff Reporter Ezaz Mahmood, took up the position that the news item supplied by him to the Nawa-i-Waqt was factually correct and did not constitute contempt of the High Court. He stated that "the reliable source from which the answering respondent obtained the news item revealed to him that action was being taken against further six Judges of the East and West Pakistan High Courts. It was also revealed to the answering respondent by the same source that notice had been written down and prepared against the six Judges in which they have been asked either to defend themselves or to resign from their offices." He asserted that the various allegations mentioned by him in the report regarding the acquisition of property by a certain Judge were capable of verification from the record of the Supreme Judicial Council.
9. As regards that part of the news item which described the proceedings of an emergent meeting of the High Court Bar Association, Ezaz Mahmood stated that "the news item reporting resentment among the Advocates regarding the proposed action against Judges was collected by the answering respondent on the 26th of September 1970, from the High Court Bar Room. When the answering respondent went to the Bar Room, he found that a proposed resolution expressing resentment of the lawyers was being signed by the Advocates, and the answering respondent was told that 159 lawyers had signed the resolution by that time. Later, the answering respondent read on the Notice Board of the High Court Bar Association that a resolution in this respect would be presented before the House. But ultimately as difference of opinion arose between the Advocates it was decided by the movers of the resolution that the same ought to be amended and its presentation was accordingly adjourned sine die". He went on to add that the news item did not impute injustice, dishonesty, corruption or improper motives to any of the learned Judges of this Court and it did not constitute contempt as it only related to the conduct of Judges not connected with their judicial functions. He ended his written statement by praying that "the truth of the news item may kindly be ascertained fully and the answering respondent may kindly be given the fullest opportunity of defending himself to enable him to prove to this learned Court that he is not guilty of contempt".
16. 10.Along with the written statement Ezaz Mahmood made an application for summoning several witnesses, including Mr. A. R. Cornelius, the Central Law Minister, and Lt. Gen. S. G. M. Pirzada, Principal Staff Officer to the President, for "the full ascertainment of the truth of the matter and for providing fullest opportunity of defence to the applicant". This application was disallowed by us for the reason that he had nowhere attributed any part of the news item to witnesses other than Mr. A.
17. R. Cornelius, and the latter had, through the learned Advocate-General of the Province, submitted to this Court that the part attributed to him by the Staff Reporter was incorrect.
18. 11.On the 3rd of October 1970, at the time of the arguments in the case, Ezaz Mahmood made an application before us in Urdu requesting us once again to summon the witnesses already mentioned by him and certain unpublished records of a confidential nature from the Central Government and the Supreme Judicial Council. The last paragraph of this application is couched in language bordering on insolence, due no doubt to a defiant, but certainly mistaken, attitude. At the hearing we indicated to the learned counsel for Ezaz Mahmood that we would be prepared to reconsider our previous decision on his first application provided he was able to convince us that the so-called truth of this mischievous news item, as alleged by him, could be a valid defence for him in this action for contempt of Court.
19. 12.We were fully convinced that the evidence sought to be summoned by Ezaz Mahmood allegedly "for the ascertainment of the truth of the matter", was altogether inadmissible in this behalf. We are further of the considered opinion that his request in these two successive applications was altogether mala fide. It was made with the mischievous and sole intention to further scandalize and undermine the dignity of a superior Court. This could not possibly be permitted by us.
20. 13.Ezaz Mahmood submitted a supplementary written statement on the 3rd of October 1970, i,e, the last date of the hearing. In order to appreciate its contents it is necessary, at this stage, to refer to the positions taken up by the other respondents. The Editor Arif Nizami tendered an unqualified apology for the publication of this news item and added that he had "specifically directed that the news item should not be published, but despite his direction Mr. Ezaz Mahmood, respondent No, 1, got it published". He then explained that the newspaper published three editions at 6-00 p. m., 10- 00 p. m. and 3.00 a. m., respectively, and that the said item was published in the last edition of the day without his knowledge and directions.
21. 14.In support of this position Arif Nizami attached with his written statement an affidavit sworn by the Staff Reporter Ezaz Mahmood, which we have marked as Exh. P.
2. As this affidavit has a direct bearing on the conduct of the various respondents, its contents may be referred to. In this affidavit Ezaz Mahmood has stated that the Editor Arif Nizami had directed that the said news item should not be published, and in obedience to his direction it was not published in the first two editions of the date in question; that as the news was very important and the deponent wanted to get it published, therefore, in order to confirm the said news he rang up Mr. A. R. Cornelius, the Law Minister to the Government of Pakistan at Rawalpindi, and the Chief Justice of the Lahore High Court. The affidavit goes on to state that the Chief Justice declined to see him on the ground that it was too late at that time, but the deponent got the news published in the third edition in view of the talk which he had with the Central Law Minister. The affidavit further states that before the publication the deponent Ezaz Mahmood tried to contact the Editor Arif Nizami, but this could not be done, and that the deponent is fully responsible for the publication of the news item and the Editor and the Printer and Publisher, respectively, had nothing to do with its publication, which took place without their knowledge and against their directions.
22. 15.The position taken up by respondent No, 3 Shoab Nizami, the Printer and Publisher of the Nawa-i-Waqt, was the same as adopted by his brother Arif Nizami. He submitted that although as Printer and Publisher he could not disown the consequences of holding this position, he would sincerely submit that he was not aware of the publication of the news item in question at any time before its actual publication. He also submitted an unqualified apology.
23. 16.The third or the local edition, in which the news item first appeared, was stated to have been brought out at 2-30 a. m. on the 27th of September 1970. At that hour the Acting News Editor was respondent No, 4 Tahir Asadi, who is otherwise employed as a Senior Sub-Editor of the Paper. He submitted that he was on duty on the evening of Saturday, the 26th of September 1970, from 6-00 p. m. to 2-00 a. m , and that at about 8-00 p. m. the Staff Reporter Ezaz Mahmood came to the office with the news item in question. On reading the same Tahir Asadi thought that it was objectionable, and accordingly decided not to send it for calligraphing unless it was approved by the Chief Reporter who was, under specific instructions embodied in an office order, required to read and approve every news item sent by the reporting staff. Tahir Asadi added that at that time the Chief Reporter Rana Talaat Mahmood had gone to attend a meeting of the Council Muslim League which was being held at Hotel Ambassador, that the Editor Arif Nizami came to the office at about 9-30 p. m. and soon thereafter the Chief Reporter also arrived. On being apprised of the news report in question the Editor and the Chief Reporter went to the Staff Reporters Room where Ezaz Mahmood was also present. At about midnight the Chief Reporter came to Tahir Asadi and told him that the news item had been recast and its language had been altered after discussion with Ezaz Mahmood and Arif Nizami and it was ready to be published. Tahir Asadi thereafter prepared the headlines for the said news item and sent the same for calligraphing. According to him, the news item was repeated in the Dak editions bearing the date 28th of September 1970, in accordance with the normal procedure, namely, that important news published in the local edition of the day is automatically inserted in the Dak editions of the next day. Tahir Asadi ended his written statement by tendering unqualified apology.
24. 17.On the basis of the disclosure made in the written statement of Tahir Asadi, the Chief Reporter Rana Talaat Mahmood was also summoned as respondent No,
5. He denied the allegation made against him by the Acting News Editor Tahir Asadi, and asserted that he came to the office a little before midnight after covering the meeting of the Council Muslim League, and started preparing his own story regarding that meeting. He had no knowledge of the offending news item handed in by Ezaz Mahmood. According to him, the entire responsibility rested on Tahir Asadi.
25. 18.In the supplementary written statement submitted by Ezaz Mahmood it is asserted that his previous affidavit attached with the written statement of Arif Nizami had been procured by the latter by "holding out false promises without his free consent and is not binding on the answering respondent". The promises mentioned are detailed in paragraph 10 of the affidavit as including support for Ezaz Mahmood's family in case of his conviction and punishment with imprisonment, and keeping the job available for him during the period of his imprisonment. According to the assertions made in the supplementary statement, Ezaz Mahmood had brought the news item to the office of the Nawa-i-Waqt at about 8-00 p. m. and it was specifically cleared for publication by the Editor Arif Nizami in consultation with the Chief Reporter Rana Talaat Mahmood, after it had been withheld by the Acting News Editor Tahir Asadi. He has averred in this statement that the Central Law Minister was contacted for the specific purpose of verifying the correctness of the news so that the Editor Arif Nizami could be satisfied in this behalf.
26. 19.That the news item in question constitutes gross contempt of this Court is not contested by any of the respondents except its author, namely, the Staff Reporter Ezaz Mahmood. It is submitted on his behalf that the report does not impute any dishonesty or partiality to the Judges concerned in connection with the discharge of their judicial functions, and, therefore, it does not fall within the ambit of any of the clauses of Article 123 of the Constitution. It is next contended that, in any case, the news is correct, and the respondent would have been in a position to prove its truthfulness if the witnesses and the record cited by him had been summoned by the Court.
27. 20.Both the contentions are clearly untenable. A plain reading of the news item in question leaves no doubt, whatsoever, that the author was directly attributing improper conduct to the Judges concerned in the matter of acquisition of property during their tenure as Judges of this Court. The imputation is clearly related to their public and official functions as Judges, and it was precisely in this capacity that the declarations of their movable and immovable property were scrutinised by the. Supreme Judicial Council, and rescrutinised, as alleged in the report, at the instance of the Central Law Minister. It is, therefore, futile to urge that the report was concerned with any private capacity of the Judges.
28. 21.The news item in question was clearly calculated, in the words of clause (b) of Article 123 of the Constitution, to scandalise the Court or other wise to bring the Court or the Judges mentioned in the report into hatred, or contempt. There could be no worse scandalisation of the Court than to suggest that its Judges were acquiring or accumulating property by improper means, and at unconscionable far below the current market prices. The allegations were bound to shake the confidence of the public in the integrity and honesty of the Judges of the High Court, and to create an impression that the Judges were abusing their official position for private gain. The seriousness of these allegations was further aggravated by the false and mischievous statement made in the report that disciplinary notices had been issued to another six Judges of the various High Courts, including two Judges of this Court, and that they ha I been called upon either to face in inquiry before the Supreme Judicial Council or to resign from their offices. There is no doubt whatsoever in our mind that the entire report, when read as a whole, fairly and reasonably, amounts to the grossest form of scandalisation of the Court, irrespective of the fact that it does not impute any improper or corrupt motive in relation to any particular case coming before the Court.
29. 22.It has been held time and again that "in a proceeding for contempt by publishing a libel upon the Court the defence that the defamatory imputation is true is not admissible. Any attempt to justify the libel is, in law, a fresh contempt". (See In re : K. L. Gauba and Sir Edward Snelson v. Judges of the High Court of West Pakistan, Lahore. As observed by Munir, C. J. in S. Israr Hussain v. The Crown "the whole principle of the Law of Contempt is against any such defence, and if the law were as contended for, the whole administration of justice would be brought into disrepute because in that case the honour of the Judges would be at the mercy of disgrantled litigants who might with impunity attack the Judges and when proceedings in contempt were taken against them, bring them into further contempt by pleading truth and offering to prove it".
30. 23.Before we part with this aspect of the case, we might mention that the learned counsel for Ezaz Mahmood contended, with reference to G. S. Giddeon Advocate v. The State and The Editor, Daily, Nawa-i-Waqt, Lahore v. The State that it was a requirement of law that although there was no precise procedure prescribed to regulate proceedings in the High Court for contempt, yet it was necessary that the fundamental rules for the ascertainment of truth should be followed and the1 2 3 4 5 contemner should be given the fullest opportunity of defending himself. It appeared to the learned counsel that the phrase "the ascertainment of truth", as used in these authorities, referred to the truth of the allegations made by the contemner. With respect to the learned counsel, this is a complete misreading of the dictum of their Lordships in the two cases just mentioned. In both the cases the question raised was that the contemner had not been given a proper hearing, and it was in that context that their Lordships observed that the fundamental rules for the ascertainment of truth should be followed. The truth in this context was not the truth of the allegations made by the contemner in the offending writing, but the truth of the allegations against the contemner. In other words, it was laid down that it should be fully established that the contemner had indeed done the act or made the writing forming the basis of the accusation. In this state of the law it was not open to the Staff Reporter to assert that he could prove the truth of the statements and allegations made by him in this report against the Judges of the High Courts.
31. 24.Apart from the fact that justification is no defence in proceedings of this kind, it is worthy of note that on the material available on this record and on the basis of facts, of which we can take judicial notice, the report, as published in the newspapers, was false in material particulars.
32. 25.The main ingredients of the news item are ; (a) that notices have been written in the names of six Judges of the various High Courts, including two Judges of the Lahore High Court, and all these Judges are specifically named; (b) that the declarations relating to movable and immovable property of the Judges were submitted to the Chief Justices of the respective High Courts; (c) that the objections of the Supreme Judicial Council, regarding these declarations were sent to the respective Chief Justice so that all the Judges could be apprised of the same; (d) that the Central Law Minister had presented the finding of the Supreme Judicial Council in an adverse light and had, therefore, got the matter re-opened for further scrutiny (e) that the High Court Bar Association had held a meeting on the 26th of September 1970 at which speeches were made high-lighting the improper acquisition of property by certain Judges and demanding to know from the press correspondents what action had been taken against them; and ( f) that it was decided to set up a defence committee in support of justice-loving Judges.
33. 26.Under Article 3(1) of Judges (Declaration of Assets) Order IV of 1969, the declarations of assets filed by the Judges were required to be submitted directly to the Supreme Judicial Council and not to the Chief Justices of their respective Courts, Similarly the Supreme Judicial Council, after the necessary enquiry, had to submit its report directly to the President in accordance with Article 5 of this Order. It did not send its objections, if any, in respect of these declarations, to the respective Chief Justices, "so that all the Judges could be apprised of the objections" raised against them, as is alleged in the news item in question, thereby hinting mischievously and falsely that the declarations of all the Judges were found to be open to objection by the Supreme Judicial Council.
34. 27.The Staff Reporter admitted before us that he had no access to the confidential documents relating to the declarations in question, and that he had no personal knowledge as to what specific directions, if any, were given in this regard by the Chief Justice of Pakistan. It was, therefore, a reckless act on his part to state in the report that the Central Law Minister had got the whole matter re-opened against the specific directions given by the Chief Justice of Pakistan. The learned Advocate-General stated before us, on instructions from the Central Law Minister, that although the latter was contacted by the Staff Reporter of Nawa-i-Waqt late at night on the 26th of September 1970, yet he did not confirm the news mentioned to him by the Staff Reporter, nor did the Minister give any such information to the Reporter as is now attributed to him.
35. 28.Ezaz Mahmood admitted before us that the notices mentioned by him had not yet issued to the Judges named in the report, and all that he wanted to convey was that such notices had been drafted for the approval of the competent authority, namely, the President of Pakistan. It does not need any elaborate reasoning to see that publishing such a defamatory news involving the conduct of several Judges of the superior Courts was a deliberate attempt to scandalize the Court for ulterior motives.
36. 29.The second half of the news item in question relating to the proceedings of an emergent meeting of the High Court Bar Association, Lahore, said to have been held on the 26th of September 1970 contains by far the most mischievous and scandalous allegations calculated to undermine the dignity of the superior Courts. In this connection, on the 30th of September 1970, we called upon Ch. Khalilur Rehman, Advocate, Secretary of the High Court Bar Association, who was present in Court, to produce before us all the relevant records relating to the proceedings of any meeting that might have been held by the Bar on the 26th of September 1970. He was also examined by us, and deposed that although a requisition for convening such a meeting was received and he had tentatively called the meeting for 10-30 a. m. on the 26th of September 1970, yet the notice was cancelled under the instructions of the President of the Bar Association, as the latter felt that the notice was much too short. Mr. Khalilur Rehman categorically stated that no meeting of the High Court Bar Association was held in this connection on the 26th of September 1970. He mentioned another requisition for such a meeting which was received on the 28th of September 1970, but that is irrelevant for our present purpose. In any case, even that meeting was not actually held. In these circumstances, it is clear that the entire proceedings of this alleged meeting have been fabricated by the Staff Reporter with a view to maligning the Judges. The speeches attributed to 75 per cent. of the members of the Bar are highly scandalous, and are the creation of the Reporter's own imagination, although he claims to have picked up the information from several Advocates. The meeting not having been held at all, any report of its proceedings is clearly false.
37. 30.In this connection it is interesting to observe that in his own written statement Ezaz Mahmood admits that the meeting was in fact not held. We have already reproduced the contents of paragraph 3 of his written statement dated the 30th of September 1970 in which he has categorically stated that "but ultimately as difference of opinion arose between the Advocates, it was decided by the movers of the resolution that the same ought to be amended and its presentation was accordingly adjourned sine die." In his deposition before this Court he has further admitted that he had telephoned to the Bar Room at 4-00 p. m. on Saturday, the 26th of September 1970, and was informed that the meeting had not been held. In spite of this information having been given to him from the Bar Room of the High Court, Ezaz Mahmood still went ahead to describe the proceedings of an imaginary meeting. When questioned on this point he tried to explain that as he had himself seen the notice of the proposed meeting on the Notice Board of the Bar Room he presumed that the meeting must have been held as scheduled, and that the information given to him on the telephone was not correct or that it related to another meeting which had been adjourned. To say the least, the explanation is both foolish and unconvincing, and discloses the attitude of the Staff Reporter in fabricating baseless and false news with a view to acquiring cheap popularity for himself.
38. 31.One other matter needs to be mentioned in this connection. Although in his affidavit attached to the written statement of the Editor Arif Nizami, Ezaz Mahmood had assumed sole responsibility for the publication of the entire report and, in answer to a question put to him in this behalf by Mr. Mahmood All Qasuri, he had admitted that the affidavit had been signed by him and was correct in all particulars, yet at a subsequent stage he denied having included the name of Mr. Justice Muhammad Yaqub Ali Khan of the Supreme Court in the list of Judges named by him, He asserted that this name must have been included in the news item by some one else who handled his report after he had given it to the News Editor concerned. We do not think that we are called upon to decide this question, as the learned Judge belongs to another Court which has also issued a notice of contempt with regard to this very news item. It will be for the respondents to explain this matter in that Court.
39. 32.It follows from what we have said above that the news item in question constitutes the grossest form of contempt as it was calculated to scandalize certain Judges of this Court and to bring them, and the Court, into hatred and contempt. The report was clearly of such a nature as was likely to shake the confidence of the public in the integrity and honesty of the Judges named therein. The offensive nature of the report is further aggravated by the fact that it was demonstrably false in material particulars, and was a deliberate and mischievous fabrication, in utter disregard of all principles of careful, correct and respectful reporting commonly observed in relation to the superior Courts all over the world. It is accordingly necessary, in the public interest, that serious notice be taken of the mischief caused by such irresponsible reporting.
40. 33.As observed by their Lordships of the Federal Court in the case of S. Israr Hussain, already mentioned by us, it must be remembered that the principle underlying the punishment of scandalous attacks on Judges is that they constitute an obstruction to public justice, as against the pubic and not against the particular Judge who is attacked. It is beyond question that the punishment is inflicted for the purpose of protecting the public, and not for the protection, either of the Court or of the individual Judges, from repetition of the attack.
41. 34.Now, the question is regarding the liability of each of the respondents. The author of the report, namely Ezaz Mahmood, is obviously responsibly for the mischief. His name appears in the published news, and he has not denied its authorship before us; on the contrary, he has, under a false sense of bravado, tried to justify his malicious report. He has not even thought it fit to tender an apology to the Court. His attempt to show that the responsibility is shared by the Editor and the Chief Reporter does not, in any manner, benefit him. His contradiction of the earlier affidavit attached by him with the written statement of the Editor Arif Nizami simply shows that he is not averse to taking up conflicting positions during the same trial. His allegation of false promises having been extended to him by the Editor of the newspaper is irrelevant in the present context. In the circumstances, we consider that he is guilty of the grossest contempt of this Court. His entire conduct and attitude in the matter have left much to be desired. He, therefore, deserves to be awarded the maximum punishment permitted by law. We would accordingly sentence him to undergo simple imprisonment for six months and to pay a fine of Rs, 2,000. In default of payment of fine he shall undergo further simple imprisonment for two months.
42. 35.We next take up the case of the Editor Arif Nizami. As already stated, he has tried to show that he withheld this news item from the first two editions of the newspaper for the 27th of September, but the report found its way into the last edition which came out of the press at about 2-30 a. m. on the 27th of September. He has tried to place full responsibility on the Staff Reporter and on the Acting News Editor Tahir Asadi who was admittedly in charge of the last edition in question. It was strenuously contended on his behalf by Mr. Mahmood Ali Qasuri that Arif Nizami is an inexperienced young man who was called upon to shoulder the responsibility of editing this Paper on the resignation of the previous Editor, and this circumstance, as well as the unconditional apology tendered by him, should be taken into account in assessing the gravity of his guilt. It was submitted that after the death of Arif Nizami's father, the late Mr. Hamid Nizami, various forces were at work to destroy the Nawa-i-Waqt, and that the present situation was brought about due to the machinations of certain interested persons whose names were mentioned during cross- examination.
43. 36.It is clear that as Editor of the paper Arif Nizami is undoubtedly liable for contempt owing to the publication of this news item, and this legal liability was not disputed on his behalf. The submissions made by his learned counsel are aimed at bringing out mitigating circumstances in his favour. It is true that the news item in question did not appear in the first two editions of the Nawa-i-Waqt dated the 27th of September 1970, and for that Arif Nizami may take the credit. But his attempt to shift the responsibility to the shoulders of the Staff Reporter and the Acting News Editor Tahir Asadi cannot succeed, in view of certain facts which have been brought on the record.
44. 37.Arif Nizami asserts that the news item was brought to his notice between 4-00 and 5.00 p. m. on the 26th September 1970 when it had already been calligraphed for inclusion in the first edition of the Paper, but he pulled it out, scored it and withheld it from publication. Now, it is interesting that up to 4-00 p. m. the Staff Reporter Ezaz Mahmood had not received any information from the High Court Bar Association about the resolution which may have been passed by that Association at its meeting scheduled to be held that morning, and it was for this reason that he had felt the necessity of making inquiries from the Bar Room. If indeed the report had already been compiled and calligraphed between 4-00 and 5-00 p. m., then there was no point in the Reporter still making inquiries as to whether the meeting had been held or not.
45. 38.Secondly, Arif Nizami has admitted in his supple-mentary statement, made on the 3rd of October 1970, that it had been reported to him that there was delay in compiling the copy of the second edition, and for that reason he came to his office at about 9-30 p.m. that evening. He found that the News Editor Tahir Asadi and the Staff Reporter Ezaz Mahmood were discussing the question of the publication of this news item. Ezaz Mahmood insisting on its inclusion and Tahir Asadi pointing out that the Editor had prohibited its publication, and it was Asadi's refusal which had delayed the compilation of the second edition. The relevant register was produced before us and it showed that the "copy" of this edition had been sent down to the press at 10-10 p.m., then recalled and sent down again at 11-15 p.m., thus showing that certain changes were made in the original copy. It was at this juncture that Arif Nizami arrived at the office, and he remained there until about midnight. The Chief Reporter Rana Talaat Mahmood also admits that he came to the office shortly before midnight after covering the meeting of the Council Muslim League at Hotel Ambassador. It is, therefore, clear that besides the Acting News Editor Tahir Asadi, there were present in the office of the newspaper the Editor himself, namely, Arif Nizami, the Staff Reporter Ezaz Mahmood and the Chief Reporter Rana Talaat Mahmood. We have already seen that Tahir Asadi was resisting the publication of this news item, and yet it was included in the last edition. The only explanation for this inclusion appears to be that the Editor and the Chief Reporter agreed to the publication of this news item. It may be that they were influenced by the information conveyed to them by the Staff Reporter that he had confirmed this news with the Central Law Minister or for any other reason. The fact, however, remains that Tahir Asadi did not act on his own when he agreed to the inclusion of this never item in the last edition. It is impossible to accept the position that this particular item was not discussed by Arif Nizami with the Chief Reporter Rana Talaat Mahmood, when there was a clear difference of opinion between the Staff Reporter and the Acting News Editor, which had already delayed the compiling of the second edition.
46. 39.Another circumstance, which is of some relevance in this behalf, is that the news was repeated in the Dak editions which were prepared and printed on the evening of the 27th of September 1970.
47. If indeed Arif Nizami was opposed to the publication of this news item in the local edition of the 27th of September 1970, there is no reasonable explanation why he did not take steps to see that the news was not automatically repeated in the two Dak editions of the 28th of September. His explanation that he felt embarrassed and worried and did not know what to do, is hardly convincing.
48. 40.Still another incriminating circumstance is provided by the fact that on reading the offending news item in the local edition of the 27th of September Arif Nizami failed to call upon Tahir Asadi to explain why the news item had been published in contravention of his instructions. According to his own statement, the only action he took was to instruct the Chief Reporter and the News Editor Sultan Arif that in future no report submitted by Ezaz Mahmood should be included in the Paper.
49. This action lends support to the assertion made by Tahir Asadi that he had agreed to include the news item only on instructions conveyed to him by the Chief Reporter Rana Talaat Mahmood that the news had been recast and the Editor had agreed to its inclusion.
50. 41.For all these reasons, we consider that Arif Nizami must be held legally and factually responsible for the publication of this news item in his capacity as Editor of the Nawa-i-Waqt. In view of the gross nature of the contempt and Arif Nizami's failure to prevent its repetition in the Dak editions bearing the date line 28th of September 1970, we regret we are unable to accept the apology tendered by him as absolving him completely of the contempt proved against him.
51. However, this is certainly a mitigating circumstance and so is his inexperience at the job of Editor.
52. Taking all these considerations into account we punish him with simple imprisonment for two months and a fine of Rs, 2,000. In default of payment of the fine, he shall suffer further simple imprisonment for two months.
53. 42.The case of respondent No, 3 Shoab Nizami, who is the Printer and Publisher of the Paper, is not much different from that of his brother Arif Nizami. His legal liability has not been contested. It is, however, urged on his behalf that it is not the practice for a Printer and Publisher to read the contents of the newspaper before publication, and that, in any case, he left Lahore on the evening of the 27th of September 1970 for Rawalpindi and Peshawar and, therefore, he did not have time to take any preventive action in the matter. In his own statement he has mentioned that on reading this news item in the Nawa-i-Waqt of the 27th of September 1970 he inquired from his brother Arif Nizami as to why such news had been published and the latter told him that he did not know anything about it. Shoab Nizami was content with this explanation and left for Rawalpindi without doing anything further. It will be seen that even if the position is accepted that it is not possible for a Printer and Publisher to read every word of what is printed and published under his name, yet he remains responsible in law for the mischief that might result from his publications (See The Advocate-General, N.-W. F. P. v. Fazal-i-Elahi and two others). It is true that Shoab Nizami has also tendered an unqualified apology, but in his case also the question arises as to whether he showed the requisite sense of responsibility in this matter. Even when he came to know of the mischievous publication in the Nawa-i-Waqt of the 27th of September still he did not take any steps whatsoever to deal with those who were responsible for this mischief, nor did he take any measures to prevent the automatic repetition of this news in the two Dak editions of the next day. These are circumstances which militate against the acceptance of his apology so as to absolve him completely of the responsibility which undoubtedly rests upon him in this behalf. Accordingly, in his case also we consider that he must receive punishment for the mischief that has resulted from a publication brought out by him. As in the case of Arif Nizami, simple imprisonment for two months and a fine of Rs, 2,000 would meet the ends of justice. In default of payment of fine, he shall undergo further simple imprisonment for two months.
54. 43.We now take up the case of the Acting News Editor Tahir Asadi. We have already stated that he did not agree to the inclusion of this news item in the second edition of the Paper which came out at 10-30 p.m., but he did agree to its inclusion in the last edition. He has explained that instructions were conveyed to him by the Editor through the Chief Reporter Rana Talaat Mahmood to the effect that the news item had been recast and may now be included in the last edition. He is a journalist of some experience, having been in the profession for nearly fifteen years. It was no part of his duty to carry out the illegal orders of his superiors, and he cannot escape liability on that score.
55. However, in view of the unconditional apology tendered by him and the fact that he was ordered by his superior to include the news item in the last edition, we consider that a lenient view is called for in his case. Accordingly, we punish him with simple imprisonment for one week. We refrain from imposing any fine on him in view of his weak financial position.
44. Finally, we come to the case of the Chief Reporter Rana Talaat Mahmood. His case has also been indirectly discussed while dealing with the case of Arif Nizami. Although this respondent has6 asserted that on coming to the office a little before midnight on the 26th of September 1970 he got busy in preparing his own report about the Council Muslim League meeting which he had earlier attended, and that he was not consulted at all with regard to the offending news item, yet we find it difficult to accept this assertion. The news item in question being definitely of a very damaging nature, and a controversy having already arisen regarding its publication between the Staff Reporter and the Acting News Editor, the young and inexperienced Editor. Editor Arif Nizami was bound to consult the Chief Reporter as to the desirability of publishing this item. In the evidence mention has been made of an office order to the effect that all report sent in by the Staff Reporters should be checked by the Chief Reporter before publication. Rana Talaat Mahmood tried to explain that this office order related only to political news of national importance. A copy of this office order has not been placed on the record, but its existence is not disputed. From the tenor of the evidence on this point it is clear to us that the news item with which we are dealing was definitely of sufficient importance and controversy to require the attention of the Chief Reporter, especially when the Editor had himself come to the office late at night in this very connection. As a result, we think that Tahir Asadi is right in saying that Rana Talaat Mahmood was consulted in the matter and it was he who conveyed to him the Editor's clearance for its publication. However, the considerations which have Influenced us in the case of Tahir Asadi also apply in the case of the Chief Reporter and accordingly we take a lenient view and punish him with simple imprisonment for one week only. AIR 1942 Lab. 105 PLD 1961 SC 237 PLD 1954 FC 313 PLD 1963 SC 1 PLD 1966 SC 419 PLD 1953 Pesh. 26