ORDER MAMOON KAZI, J.- This application, under Article 204 of the Constitution, has been filed by Mr. Suleman Habibullah, an Advocate of this Court against Mr. Ansar Burney another Advocate and others. The latter is said to have criticized the Government over appointment of new judges to the superior Courts. It is said that the said respondent had addressed press reporters a few days back and it was stated by him that the present Government had appointed persons of their on choice as judges who were inefficient and thus incapable of imparting justice. Thus they would fail to inspire confidence in the public who would soon lose confidence in the entire judiciary. The respondent is also said to have demanded resignations of such judges threatening to launch a campaign against them at an international level in case they failed to. Tender their resignations. The said respondent is also stated to have criticized the recent appointments of the Chief Justices for the Lahore and Sindh High Courts. The other respondents who are connected with certain newspapers are said to have published their respective reports in respect of the said statement. The allegations are fully supported by the newspaper clippings copies of which have been filed as Annexures A to E to the. Application.
2. Pre-admission notice was ordered to be issued to the Advocate- General vide order passed by me on 15.8.1994 but today when the case has been called none has appeared on his behalf. I, therefore, did not have the advantage of hearing the learned Advocate-General.
3. Article 204 of the Constitution, reference to which has been made by the applicant in the said application, provides as under:- "204.(1) In this Article, "Court" means the Supreme Court or a High Court.
(2) A Court shall have power to punish any person who-
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court,
(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.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.
4. The language employed by the Constitution maker in Sub-Article (2) clause (b) of article 204 is plain enough to suggest that commission of contempt may not be intended by the offender by any action or gesture or words written or spoken by him, nevertheless if they tend to scandalize the Court or bring the Court or a Judge into hatred, ridicule or contempt, such person would be guilty of the said offence. However, in the present case, Article 204 of the Constitution cannot be interpreted in isolation without taking into consideration Article 19 of the Constitution which guarantees freedom of speech and expression. No doubt, such freedom has been subjected by the same Article reasonable restrictions that may be imposed by law and one of the exception referred to by the said Article is the law of contempt of Court. Therefore, care is always taken by the Courts to see whether the citizen under such circumstances has remained within his freedom of right of expression or he has overstepped the same. It may be pointed out in this regard that Courts in many countries where democracy is the rale have generally while following the .Same rule, opted for a liberal approach. However, Courts in Pakistan have shown little leniency to the offenders in order to safeguard independence of Judiciary which is so essential for dispensing justice without favour or fear and have always opted for a balanced approach in such matters.
5. So far as the circumstances under which the present application has been filed are concerned, no doubt, the object behind the application, to say the least, is laudable because Courts must not be made target of nay controversy. However, from the material placed before this Court by the applicant, although an impression has prima facie been created that now the superior Courts consist of Judges who are incompetent and in their appointments considerations other than merit were the dominant factor, nevertheless question still arises whether the said criticism was motivated by malice or the same was in good faith in public interest. The opinion expressed by respondent Ansar Burney regarding the recent appointment of judges is his on opinion, and the question whether the opinion is ill conceived or the same was expressed by him after ascertaining the true facts, is not germane to the real issue that requires determination in the present case. The main question is whether the said respondent honestly believed in what he said or the criticism was tainted with malice. It would be erroneous to assume that if in the future, Judges to the Superior courts are actually appointed by the Government then in power on considerations other than merit, any person criticising such appointments in public interest would invite the penal provisions of article 204. Such interpretation of the law, I have no doubt, would be in clear derogation of article 19 of the Constitution which, as just pointed out guarantees freedom of expression. Consequently, unless malice is clearly spelt out from the said utterances, the same cannot fall within the mischief of Article 204 of the Constitution. It was observed by M.R. Khan in Ashfaque Ahmed Sheikh v. The State (PLD 1972 SC 39) that even judicial acts of Judges are not above criticism provided that the criticism provided that the criticism is in good faith. This was held to be the ordinary right of the members of public, only when such right was exercised in pursuance of improper motive or malice or in an attempt to impede the course of administration of Justice, the same would attract the penal provisions of the law of contempt of Court. While Judged in the light of the above discussion, the statements made by respondent -Ansar Burney fail to make out a prima facie case against him for which action may be taken against him under Article 204 of the constitution, because malice is not clearly spelt out therefrom, the target of Criticism alone being the Government in power.
6. Another important aspects of the matter which requires to be considered is that if action against respondent Ansar Burney, in any case, is taken for contempt of Court it is bound to receive were publicity in the press and the same can cause considerable embarrassment to the learned Judges. In case the object behind the said statement was to stir a controversy regarding such appointments, then the object would be achieved if any such action is taken against the respondent. I have no doubt in my mind that even the learned Judges whose appointment has been criticized would themselves prefer to avoid such an embarrassment. For the aforesaid reasons, I am clearly of the view that even for such reasons, no further action in the matter would be called for.
7. So far as the other respondents are concerned, they are said to have reported only what was stated by respondent Ansar Burney. If no action is called for against respondent Ansar Burney, the question of taking action against the other respondents can hardly arise.
8. In the result, the application is dismissed.