1. ' This abashment application is directed against the judgment dated 28-12-1989, passed by the learned Civil Judge and F.C.M. Mirpur Bathero convicting the applicant under sections 90 and 91 of Contempt of Courts Act, and sentenced him to pay fine of Rs,100 or in default to suffer simple imprisonment for fifteen days.
2. 'The brief facts giving rise to the present application are that applicant Yar Muhammad is Taluka Reporter of Sindhi daily `Awami Awaz' Karachi. That on 29-9-1989, he got the news item published in daily `Awami Awaz' which reads as under:-- "One Chutoo Zauran of Mirpur Bhathero has made an application to the High Court that Manzoor Memon, Civil Judge, Mirpur Bhathero had by abusing his authority detained him. High Court has asked the Sessions Judge, Thatta to inquire in the matter. In this connection, the statement of the applicant has been recorded and the matter has not yet been decided."
3. ' That on 23-12-1989, the applicant was served with a notice under sections 90 and 91 of the Contempt of Courts Act, issued by learned Civil Judge, Mirpur Bathero calling upon the applicant to appear before him on 28-12-1989 and to show cause as to why he should not be convicted for committing contempt of Court for publishing news and punished under sections 90 and 91 of the Contempt of Court Act. The applicant appeared before the Court and submitted his written explanation to the effect that he had not committed any contempt of Court and that he had simply published a news item to the effect that Ghullo Zauran of Mirpur Bather had complained to the High Court against the Civil Judge, Mirpur Bathero for detaining him by abusing his authority; and that the Sessions Judge, Thatta was asked to hold an inquiry in the matter.
4. ' The learned Civil Judge was not satisfied with the explanation and, therefore, he convicted and sentenced the applicant as described above. The present abashment application is filed against the above conviction.
5. ' I have heard Mr. Nooruddin Sarki, learned counsel appearing for the applicant, Mr. Hayat Qureshi, learned counsel appearing for the State and have gone through the documents produced along with the abashment application.
6. ' It has been contended by Mr. Nooruddin Sarki, learned counsel appearing for the applicant that the alleged news item was published in the newspaper on the information received from Chutto son of Abdullah Zaunr and he had also supplied photostat copy of the said application to the applicant and the news were published on the basis of the said application. That no contempt was committed by the applicant while getting the said news published in the newspaper and the learned Judge has erred in convicting the applicant. That the learned Judge could convict the applicant only under section 228, P.P.C. If the contempt was committed in his presence. That the judgment passed by the learned Civil Judge was without jurisdiction.
7. ' Mr. Hayat Qureshi, learned counsel appearing for the State has contended that there was no contempt and the action taken by the learned Civil Judge was without jurisdiction and, therefore, the order passed by the learned Judge convicting the applicant was liable to be quashed.
8. ' I have considered the contentions of the learned counsel. In order to appreciate the legal point raised by Mr. Nooruddin Sarki, the learned counsel appearing for the applicant, it is necessary to refer to section 228, P.P.C. As well as to the provisions of Contempt of Court Act, 1976. Section 228, P.P.C. Reads as under:- "228. Intentional insult or interru_ption to public servant sitting in judicial proceeding.---Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
9. Contempt of Court Act, 1976 came into operation on 30th November, 1976 and by virtue of section 12, the Contempt of Court Act, 1926 was repealed. The Contempt of Court Act, 1976 contains only twelve sections and section 5 of the above Act deals with question of jurisdiction. Section 5 reads as under:-- "5. Jurisdiction.---(1) A High Court or the Supreme Court on its own information or on information laid before it by any person, may take cognizance of an alleged commission of contempt of the Court.
(2) The Supreme Court shall have the power to take cognizance of any contempt of itself or of any judge of the Supreme Court alleged to have been committed anywhere and a High Court shall have the power to take cognizance of any contempt of itself or of any Judge thereof or of any other High Court or of any Judge thereof alleged to have been committed within the territorial limits of its jurisdiction.
(3) A High Court shall exercise the same jurisdiction in respect of contempts of Courts subordinate to it or to any other High Court as it exercises in respect of contempt's of itself.
(4) Nothing contained herein shall affect the power of any Court to punish any offence of contempt under the Pakistan Penal Code. (Act XLV of 1860)."
10. The bare reading of section 228, P.P.C. And subsection (4) of section 5 of the Contempt of Court Act, 1976, makes it clear that the subordinate Courts have jurisdiction to convict any person for committing contempt of Court only in the circumstances mentioned in section 228, P.P.C. Section 3 defines the word `Contempt of Court' and reads as under:-- "3.-- Contempt of Court.--- Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a wilful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office or to disturb the order or decorum of a Court, is said to commit 'Contempt of Court'.
11. ' Provided that the following shall not amount to commission of contempt of Court:--
(i) fair comments about the general working of Courts made in good faith in the public interest and in temperate language;
(ii) fair comments on the merits of a decision of a Court made, after the pendency of the proceeding in a case, in good faith and in temperate language without impugning the integrity or impartially of the Judge;
(iii) subject to a prohibition of publication under section 9 or under any other law for the time being in force, the publication of a fair and substantially accurate report of any judicial proceedings;
(iv) the publication of any matter, amounting to a contempt of Court by reason of its being published during the pendency of some judicial proceedings, by a person who had no reasonable ground for believing that such judicial proceedings were pending at the time of the publication of the matter;
(v) the distribution of a publication, containing matter amounting to contempt of Court, by a person who had no reasonable ground for believing that the publication contained or was likely to contain, any such matter.
(vi) a true averment made in good faith and in temperate language for initiation of action or in the course of disciplinary proceedings against a Judge, before the Chief Justice of a High Court, the Chief Justice of Pakistan, the Supreme Judicial Council, the Federal Government or Provincial Government;
(vii) a plea of truth taken up as a defence in terms of clause (vi) in proceedings for contempt of Court arising from an early averment unless it is mendaciously false.
12. (viii)......................................
13. (ix)
14. ' The bare reading of para. (vi) of section 3 will show that news item got published by the applicant was not contemptuous one, and no contempt was committed by the applicant by getting the same published. Section 3 and subsection (4) of section 5 of the Contempt of Court Act and section 228, P.P.C. Clearly show that the subordinate Courts could punish for contempt of Court only where the contempt was committed in the face of the Cowl or its orders were disobeyed or disrespected as envisaged by section 3 of the Contempt of Court Act.
15. ' In the present case, as observed above, firstly the alleged news item published in the newspaper cannot be said to have been intended to undermine dignity of the Court or to bring authority of law into disrespect and disregard or to interfere with or prejudice the parties. Secondly, the learned Civil Judge had no jurisdiction to convict the applicant for contempt on the basis of news item got published by the applicant, in the newspaper. Thirdly, the sections 90 and 91 did not exist on the statute book of Contempt of Court Act, 1976, and the judgment of conviction passed by the learned Civil Judge was illegal and without jurisdiction.
16. ' I therefore, allow this application and set aside the judgment dated 28-12-1989 passed by Civil Judge and F.C.M. Mirpur Bathero District Thatta and acquit the applicant. The fine if paid shall be refunded to the applicant.