1. ANWARUL HAQ, J.-These proceedings, under Article 123 of the Con--stitution of the Islamic Republic of Pakistan, 1962, read with the Provisional Constitution Order, 1969, were drawn up against the respondents on the allegations :-
(a) That in the weekly magazine 'Kahani', bearing the date 10th to 17 March 1972, an interview of respondent No. 1, Mr. M. Anwar, Bar-at---Law, an Advocate of Lahore, containing scandalous matter against the Judges of the Supreme Court of Pakistan, was printed and published by respondents Nos. 2 and 3 as editor, publisher and printer of the said weekly ; and
(b) That at the time this interview was given and published, a case was pending before the Supreme Court in which the respondent No. 1 himself was the counsel and had raised precisely the same contentions .As he had publicly canvassed through this interview.
2. The petition was presented by Mr. M. Inayat Khan, Advocate of Lahore,, and a show-cause notice was directed to be issued to the respondents on the 3rd of April 1972. At the hearing of the petition, a statement was made by the learned counsel for the petitioner that the latter did not wish to press this petition. As, however, the Court had already taken cognizance of the matter by issuing a notice to the respondents, we decided to proceed with the matter, and requested the learned Attorney- General to assist the Court.
3. The interview was published in the magazine under the heading.
4. (Supreme Court Judges are guilty and not Ayub and Yahya).
5. This is followed by a sub-heading reading (Serious allegations of M. Anwar, Bar-at-Law in connection with the present crisis of Pakistan).th The text of Mr. M. Anwar's interview, as published in the `Kahani', is in, Urdu, but in the written statement filed by him he has himself given an English. Translation of the relevant portions thereof.
6. It will, therefore, perhaps be best to reproduce the same in his own words. After stating that in addition to being a legal practitioner he also takes active part in politics, and in this latter capacity he was frequently interviewed by journalists on different aspects of national life and was invited to address public and private audiences on, matters of political significance, he has gone on to add that in February 1972'--some journalists on behalf of the weekly 'Kahan? Interviewed him and asked him certain questions and that interview was published under an introductory note and headlines given by the editorial staff of the magazine.
7. Mr. Anwar has given the following translation of the introductory note :- "In this new series, we will be asking respected personalities from different strata of the nation the question 'what in your view are the-- causes of the present crisis.' On this first occasion we have put this question to the country's distinguished jurist Mr. M. Anwar, Bar-at---Law. His answer is reproduced accurately. He has expressed his views--on a very important problem. We hope that our readers will appre--ciate this series and will favour us by their own views."
8. Mr. Anwar's own English rendering of the important and relevant. Portions of his interview reads as follows :- "In my view the misfortunes of Pakistan have been caused by two --persons. Mr. Ghulam Mohammad, the third Governor-General, and Mr. Mohammad Monir the second Chief Justice of the Federal Court of Pakistan.
9. Within 24 hours of the announcement by the Prime Minister that. The --new Constitution would be enforced on the birth anniversary of the Qaid-e-Azam (the Governor-General) on October 24, 1954, brought to, an end the existence of the Constituent Assembly. The Sind Chief Court issued a writ against the Government that the Governor-General had no power to dissolve the Constituent Assembly . . . . . This. Matter in appeal came before the Federal Court . . . Mir Mohammad Monir not only said that (the Governor-General). Had the power to dissolve the Constituent Assembly, but holding that (all laws made by Constituent Assembly, required the assent of the Governor-- General), with one stroke of the pen, invalidated innumerable laws which till then were in accord with the Government's own point of view (thus invalidating the very jurisdiction of the Chief Court in exercise of which writs were issued). The honour of dissenting from this fell to the lot of a Christian Judge------the other Judges agreed with Mr. Mohammad Munir's opinion. The result was that the fabric of the law of Pakistan was undone. Mr. Mohammad Munir nullified the law of writ so as to render void the writs issued by the Chief Court. Since that fateful day, we have not been able to put our derailed train back on the rails.
10. Three years later the same Mr. Mohammad Munir is seen putting the seal of verification on Martial Law. There is documentary proof of the fact that Mr. Mohammad Munir was present in Karachi several days before the (imposition of Martial Law) to advise (those that imposed it). And after the imposition of Martial Law he did some--thing, the far-reaching consequences of which ultimately have pushed us in the lap of disaster. He . . . . . Gave this good news to-- the nation that if a usurper forcibly captures power, then that usurper becomes a legitimate source of law. This was such a dangerous decision that it paved the way for new adventurers.
11. The painful thing is this that those Judges who had taken an oath to defend the Constitution watched it being trampled under foot and departed declaring that a revolution, if successful, becomes a fountain of law and the Constitution comes to an end. This dangerous doctrine was a product of the poisonous brain of Mr. Mohammad Munir ; in the trampling of democratic values, the Judiciary that was adorning the Bench from 1954 to 1958, is responsible for declaring an adventurer to be legitimate, and a forbidden thing (HARAM) to be permissible (HALAL). Respected persons who at that time called themselves Judges of the Supreme Court, did not remember the sanctity of their pledge and their oath, until becoming oblivious of the fear of God, they placed their great country at the mercy of adventurers . .
12. He has asserted in his written statement that far from constituting contempt of this Court, the views expressed by him during the course of this interview reflect "the high esteem and regard in which he holds the judicial office and all that it stands for. In speaking of certain individuals who, according to him, failed the highest judicial institution that existed in Pakistan in 1954 and in 1958, he did not in any way lower the prestige of the judicial office, or of any judicial institution, or of this Hon'ble Court or of any of its Judges."
13. He has then gone on to state that he "did not get anything published". In those days the assumption of non-Constitutional power by one person, and the surrender of that power by another was a recent event and a subject of much comment. The debacle in East Pakistan and the ignominous defeat on the borders of West Pakistan were wounds that had not yet been touched by the soothing hand of time. The enormity of the tragedy was stunning. Every one was asking how such a thing could at all have become possible. Opinions were asked and given. Respondent No. 1 was asked by a journalist. He replied: "That was all."
14. As regards the allegation that the respondent bad deliberately given public expression to the contentions which he had raised in a pending case before the Supreme Court, Mr. Anwar has stated that he did not make any comment on any case whatsoever, and he only repeated the opinion he had expressed many times before on a doctrine that had come to be propounded in Pakistan. In support of this last assertion he has appended, with his written statement, a copy of the weekly 'Chatan' of Lahore dated the 20th of September 1971, containing a report of an earlier interview given by him on this subject.
15. Finally, Mr. M. Anwar has drawn the attention of the Court to the fact that the doctrine expounded in Dosso's case (PLD 1958 SC (Pak.) 533) has now been rejected by the Supreme Court itself, thus vindicating "the humble opinion in--adequately expressed by respondent No. 1".
16. On the 22nd of November 1973, a concise statement was filed on behalf of respondent No. 1 to the effect that besides the points already submitted in the written statement dated the 28th of September 1972, it would also be urged before the Court that the petition was not maintainable as it did not relate to the functioning of the Court as constituted under Article 49 of the 1962 Constitution, but to its predecessors set up under the earlier consti--tutional instruments.
17. Respondent No. 2, Zia Shahid (editor and publisher of 'Kahani') has tendered an unqualified apology, stating that "the article in question was only published by me on the express assurance of Mr. M. Anwar, Bar-at-Law that "the above did not constitute contempt of Court".
18. Respondent No. 3, Saeed Ahmed Malik, printer of the weekly in question, does not appear to have filed any written statement, nor has he entered appearance. We have, however, not considered it advisable to adjourn the proceedings on that account. He is accordingly being proceeded against ex parse.
19. The learned Attorney. General contends that the article or interview in question constitutes gross contempt of this Court and of its Judges, as were serving at the time Dosso's case was decided, as it not only attributes question--able motives to the then Chief Justice, who delivered the leading judgment in Dosso's case, but also maligns the other Judges in extremely strong and derogatory language. He contends that the timing of the publication of the interview was deliberate, and was intended to 'browbeat and blackmail" the Judges of the Supreme Court who were to hear the appeal filed by Mr. M. Anwar in Asma Jilani's case (PLD 1972 SC 139) against the judgment of the Lahore High Court. He points out that the petition for special leave to appeal in that case was made by Mr. M. Anwar on the 1st of January 1972, leave to appeal was granted by this Court on the 25th of January 1972, and the hearing of the appeal was to commence on the 16th of March 1972, whereas the interview was publisbed in the weekly 'Kahani' a day or two before the 10th of March 1972. It appears to the learned Attorney-General that, in these circumstances, the real purpose of Mr. M.
20. Anwar in getting this interview published was to influence the judgment of this Court in the aforesaid appeal by giving public expression to the alleged disastrous consequences of the judgment of the Supreme Court in Dosso's case, which Mr. M. Anwar was seeking to have reversed in Asma Jilani's case. The learned Attorney-General, however, states :that, in spite of the objectionable language used in the article, he would not have pressed for action against the respondents, but for the fact that they gave publicity to this interview during the pendency of a case in this Court, and it is desirable that such tactics should be severely discouraged and dealt with. Finally, he contends that the present Supreme Court, at the successor of the Federal Court and the Supreme Court functioning under the previous constitutional instruments, is fully competent to take action against the res--pondents under Article 123 of the 1962 Constitution.
21. On behalf of respondent No. 1, Mr. Sharifuddm Pirzada contends that the present proceedings are not maintainable for the reason that the alleged offend--6ng remarks were directed against a Court which is no longer in existence, and, therefore, there could be no question of committing any contempt of that Court; that criticism of a retired Judge, howsoever worded, does not constitute con--tempt of the Court of which he was once a member; and that in any case the ,views expressed by the respondent, during the course of the published interview, ,Were no more than a discussion of matters of public importance, and did not have any tendency to substantially prejudice the fate of the appeal then pending before the Supreme Court. Finally, the learned counsel submits that proceedings by way of contempt being quasi-criminal in nature the benefit of .Doubt should be given to the respondent, especially when the Supreme Court itself has, in Asma Jilani's case, strongly disapproved of the doctrine expounded by the learned Chief Justice in Dosso's case, thus truly vindicating the stand taken by the respondent in his interview published in the'Chatan' in 'September 1971 as well as in the publication now under consideration.
22. We shall first take up the question whether the impugned publication .Does constitute contempt of Court or not. As already stated this petition vas filed under Article 123 of the 1962 Constitution, clause (2) of which reads as under :- "(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) scandalises 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."
23. The comparable Article in the 1973 Constitution is 204 and clause (2) thereof is practically identical with that of Article 123 quoted above. However, an explanation has been added to the effect that "fair comment made in good faith and in the public interest on the working of the Court or any of its final decisions after the expiry of the period of limitation for appeal, if any, shall not constitute contempt of the Court".
24. For our present purpose, clauses (h) and (c) are relevant, as it is con--tended that the publication of the interview amounted to scandalisation of the Court, and also tended to prejudice the determination of a pending cause.
25. As stated by Oswa ld in his well-known book on Contempt. "all publica--tions, which offend against the dignity of the Court or are calculated to prejudice the course of justice, will constitute contempt." According to Lord Russel, C. J. In Reg v. Gray ((1900) 2 Q B 36), "any act done, or writing published, which is, calculated to bring a Court or a Judge into contempt or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is contempt." While describing the species of contempt known as "scandalising the Court", Lord Akin observed in Andre Paul Terence Ambard v. The Attorney-General of Trinidad & Tobago (AIR 1936 P C 141) that the Judges should not mind genuine criticism "provided that members of the public abstain from imputing improper motive to those taking part in the administration of justice, and are genuinely exercising a right of crticism and not acting in malice or attempting to impair the administration of justice .... Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful? Even though outspoken comments of ordinary men."
26. In In re : Tushar Kand Ghosh, Editor, Amrit Bazar Patrika (AIR 1935 Cal. 419) it was observed that "it is immaterial whether the attack on the Judge is with reference to a cause about to be tried, or actually under trial, or recently adjudged; in each instance, the tendency is to poison the fountain of justice,, to create distrust, and to destroy the confidence of the people in the Courts, which are of prime importance to the public in the protection of their rights, and liberties".
27. Similar views were expressed by a Full Bench of the Lahore High Court in The Crown v. Aminuddin Sahrai (PLD 1949 Lah. 410), while considering the effect of an. Article published in a newspaper criticising the judgment delivered by a High Court Judge in a recently decided case. The article had alleged that the judgment was not only wrong but dishonest and sacrilegious. The article also incited the people to turn the Judge out of Pakistan for having delivered such a judgment. It was held that the publication in question tended to--- impair the confidence of the public in the impartiality and competence of the Judge and was calculated to give an impression to the public at large that cases before that Judge or in the Court of which he was a Judge were not decided on the merits but on extraneous considerations. That being the tendency of the article, it was difficult to conceive of a more serious attack on the reputation of the High Court or a more serious damage to the public confidence in the administration of Justice by Highest Court in the Province. The decision by a Full Bench of the Sind Chief Court in The Crown v. A. Rafique (PLD 1950 Sind 74) is also on the same lines.
28. In The State v. Moulana Abdul Rashid Tarkabagish (PLD 1959 Dacca 252), a case which is again reported as PLD 1964 Dacca 241 it was stated that: "If the words have the tendency of impairing the authority and the dignity of the Courts of justice by scandalising them, then it is no excuse for the person who is responsible for the said publication or who uttered the said words to say that it was in respect of proceedings which had long since concluded in Courts. It is not necessary that the words used should actually obstruct or interfere with the course of justice and the due administration thereof, but it is sufficient that they should be calculated to have that effect. 'Calculated' means that the offend--ing words should be of a nature or character proper or likely to obstruct or interfere in that manner. Where the words in no uncertain terms make the imputation that during the regime of the Muslim League the Judiciary had been influenced by the Ministry, that is a direct attack upon the independence and integrity of the Courts of justice in this country."
29. The question as to what constitutes contempt by scandalisation was exhaus--tively examined by this Court in the case of Sir Edward Snelson v. Judges of the High Court of the West Pakistan, Lahore (PLD 1961 SC 237). It was observed that "the dignity and authority of the Courts has a link with the supremacy and majesty of the law. Any conduct which is calculated to diminish that dignity or authority is a criminal contempt which a Court is under duty to punish. The Courts of justice are a creation of the sovereign authority but their mainstay rests in the public confidence and anything which is calculated to withdraw the public confidence from them has the character of a libel to be visited by action in contempt." It was further observed that "in construing the matter alleged to be defamatory, no mitigation of its natural meaning by construction is permissible. The words must ba given their full, natural and ordinary meaning as a reasonable man of ordinary prudence would be likely to understand them. They must be taken as a whole in their context, and it should be clearly borne in mind that the slander and the damage consists in the apprehension of the hearer or other person to whom the libel is com--municated. The meaning in which the words were intended by the author to be understood is immaterial . . . . The question in every case is n'3t whether the publication in fact interferes but whether it tends to interfere with the due course of justice . . . . Fair and legitimate comment on judgments of a Court would not be actionable, provided the limits of bona fide criticism are not exceeded."
30. We do not think that we can improve upon the statement of the law as contained in Sir Edward Snelson's case, except to re-emphasize and reiterate that any conduct which is calculated to diminish the dignity and authority of the Courts, and to impair public confidence in their independence, impartiality and integrity, constitutes contempt of the gravest kind. Imputing motives to Judges, and alleging, or even insinuating, that their judgments are inspired by extraneous considerations, like fear or favour of the executive cannot, in any event, be regarded as fair and legitimate comment made in good faith and in the public interest on the working of the Courts.
31. Judged in the light of these principles, it would readily appear that the statements made by Mr. Anwar constitute grave contempt of Court falling in the category of scandalisation. From a perusal of the relevant portions of his published interview, it becomes manifest that he was not only voicing his dissent from the doctrine of the legality of a successful revolution as expound--ed by the Supreme Court in Dosso's case in 1958, but was also imputing improper motives to the then Chief Justice for delivering this judgment. He even went to the extent of maligning the learned Chief Justice by asserting that the judgment in Dosso's case was in line with the previous judgment delivered by the same Chief Justice earlier in 1951 in Moulvi Tameezuddin's case, and that both these judgments were motivated by the ulterior purpose of giving support to the then Governor- General of Pakistan in the first case, and the Martial Law usurpers of power in the second case, both judgments caus-1 in& a death blow to democracy and the rule of law in Pakistan. The language employed by the respondent is also extremely harsh and derogatory, speaking as it does, of the "poisonous mind" of the Chief Justice and trial other associate Judges giving a go-by to the oath which they had taken tow defend the Constitution. Such statements cannot in any sense, amount to at, fair comment on the correctness or propriety of the judgment of the Supreme Court in Dosso's case. The publication, therefore, clearly amounts to con--tempt of Court as it scandalises the Supreme Court of Pakistan as constituted in 1958.
32. The next question is whether it also amounts to contempt for the reason that it was published during .The pendency of Asma Jilani's case before the Supreme Court, in which Mr. M. Anwar himself was a counsel, and was seeking to obtain a reversal of the Supreme Court's decision in Dosso's case.
33. In Saadat Khialy v. The State (PLD 1962 SC 457) while dealing with the publication of' newspaper comments in respect of pending litigation, this Court observed that "if the article read reasonably and as a whole was calculated or had the tendency to prejudice mankind against one or other of the parties involved in, the proceedings, it was enough to amount to an interference with the course of justice, for the question in the case is not as to whether the publication, has, in fact, interfered or not, or as to what was the intention of the author and/or publisher, but whether it has the tendency to produce such prejudicial effect. The principle upon which this type of contempt is punished is to, keep the streams of justice unsullied so that the parties against whom litiga--tions are pending in Courts of law should get a fair trial from the Courts and, not be subjected in advance to a trial by newspapers." It was added that "the Courts in exercising this extra ordinary jurisdiction will not be unduly, touchy or sensitive to punish even technical or trifling interference."
34. The effect of newspaper publications in regard to pending cases was. Again considered by this Court in the case of The Attorney General of Pakistani v. Abdul Hamid and others (PLD 1963 SC 17 D), and, after a review of judicial precedents, it was concluded that " it appears to us that the real test in such cases is whether the publication complained of tended or was calculated to interfere with the --course of justice in any substantial or real manner, either by prejudicing a fair trial or by prejudicing the minds of the public against persons concerned as party in causes before the cause is finally heard. In determining this effect neither the intention of the printers or authors nor the truth or falsity of the allegations contained in the publication complained of is of any consequence for, what we are concerned with is that we should not permit any one to "poison the fountain of justice before it begins to flow".
35. These conclusions and observations were reiterated in Advocate-General,, West Pakistan v. Shabir Ahmad (PLD 1963SC610). The contention that the mere expression of an opinion on a question of law which is sub judice cannot amount to a contempt of Court was repelled. It was stated that "there is no difference in principle between a comment on a question of fact and expression of opinion on a question of law, for, a Court even when dealing with a question of fact is expected not to be influenced by facts which may have come to its. Knowledge otherwise than from the evidence adduced in the case . . . . . A Court dealing with the question of law would not normally allow itself to be influenced by expressions of opinion on questions of law by any outside agency, no matter however high or eminent that agency might be, but the reason why such publications containing even expressions of opinion on questions of law pending decision in a Court may amount to a contempt is because of their tendency and not because of the actual effect they produce."
36. It was also laid down that "in law knowledge of the pendency of the proceed--ings is not a necessary ingredient of the offence of contempt of Court. All that is necessary to show is that a proceeding was actually pending at the time or was imminent. It is not necessary to establish that the contemner had actual knowledge of the pendency of the proceedings".
37. In Attorney-General v. Times Newspapers Ltd. ((1973) 3 All E R 54) it was held that "it was a contempt of Court to publish an article expressing an opinion on the merits of specific issue which was before the Court for determination in circumstances such that the article gave rise to a real risk that the fair trial of the action. Would be prejudiced. It was the purpose of the law of contempt to protect the public interest in the proper administration of justice and in those cir--cumstances that interest outweighed the public interest in discussion of the issues raised by the litigation". Their Lordships observed that "conduct amounts to contempt where it presents a real risk, as opposed to the mere possibility of interference with the due administration of justice. The seriousness of that risk is relevant only to the question whether the contempt is one for which the Court, in its discretion ought to inflict any punishment and, if so, what punishment it should inflict." Two of the learned Judges, however, declared that "discussion however strongly expressed, on matters of general public interest, is not to be stifled merely because there is litigation pending arising out of particular facts to which the general principles discussed would be applicable, even if that has the indirect effect of bringing pressure to bear on a particular litigation to abandon or settle a pending action." Nevertheless, they went on to add that "it is contempt of Court to hold a suitor up to public obloquy for availing himself of his right to-- have legal rights and obligations ascertained and enforced in Courts of law; the published mischief of such conduct lies in the inhibiting effect which it might have on all potential suitors if it were to become the common belief that to have recourse to the Courts for the ascertainment and enforcement of their legal rights and obligations would make them a legitimate target of public abuse". Finally, Lord Reid, Lord Simon and Lord Cross observed in the same case that "proper criticism of a judgment already given but under appeal would not amount to contempt."
38. In Ch. Zahoor Ilahi v. Mr. Z. A. Bhutto (PLD 1975 SC 383), decided by this Court as recently as the 16th of May 1975, the position was summed up as under:- "The power to commit for contempt is a power which has been vested in the superior Courts as an extraordinary power and has, therefore, to be exercised with great circumspection only where it is absolutely necessary in the public interest to do so. Comments in respect of pending proceedings are treated as contempt in order to keep the stream of justice pure and undullied. Only those comments and 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.
39. 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 other words, is there any real possibility of the speech or the article being calculated to prejudice either party in the pending cause."
40. It will be seen that the Courts have consistently taken the view that if a publication has the tendency to cause real and substantial prejudice to a party to a pending cause then it would amount to contempt. Prejudice may be caused either by criticism of a party and the nature of the claim brought by it for enforcement by the Court, or by utterances calculated to influence the mind of the Judges constituting the Court for the purpose of pre-disposing them to decide the matter in a particular manner. It has been rightly said that the important question in such a case is not whether the Judges would in fact, be influenced by such utterences, but whether the publication has the tendency to produce that affect.
41. While, in a civilised and democratic society, the need and value of a free and informed discussion of issues of public importance cannot be denied, it is also in the public interest that the administration of justice must be kept free from all extraneous influences so that public confidence in the indepen--dence and impartiality of the Courts is not impaired, and litigants are not deterred in any manner from seeking the enforcement of their legal rights through the Courts of justice, nor is the determination of their causes pre--judged or prejudiced by public utterances and newspaper publications. It is, therefore, imperative that a balance should be struck between the .Competing demands of public interest and public policy. It seems to us that this balance is adequately ensured by allowing fair comment made in good faith and in the public interest on the working of the Courts or any o their final decisions after the expiry of the period of limitation for appeal, .Any. This provision has now been very appropriately embodied in the, .Explanation to Article 204 of the 1973 Constitution.
42. It is true that in the case against the Times Newspapers Limited three of the noble Lords have gone to the extent of saying that proper criticism of a judgment already given but under appeal would not amount to contempt, but this statement is not altogether unqualified. It is based on the assumption that the Judges in the Court of Appeal or the noble and learned Lords in the House of Lords are scarcely likely to be influenced by public comment where a case is under appeal before them; and "it would be wrong and contrary to existing practice to limit proper criticism of judgments already given but under appeal. Lord Simon elaborated the point by saying that "it would for example undoubtedly be contempt to assault an appellate Judge in protest against his judgment, or to attempt to bribe him. But any contempt by way of public comment is the more likely to be technical with the absence of jury or witnesses; and indeed any comment on pending appellate proceedings could only rarely be intrinsically an interference with the due course of law.
43. For example, scholarly discussion in the legal journals of decisions which may be the subject of appeal could not appropriately be ,described as interference with the due course of law."
44. We think that this statement of the law is not wholly applicable or relevant to conditions obtaining in Pakistan. For instance, in a first appeal from the judgment or order of the trial Court all the issues of law and fact are open for examination, and there is a real and substantial risk of prejudice being caused to one party or the other if a public debate on those issues permitted during the pendency of such an appeal. It is also possible that the public comment or expression of views on the questions involved may no always be confined to a scholarly discussion thereof, as contemplated by Lord Simon nor limited only to fair comment on the correctness or propriety of the judgment under appeal. In making these observations, we are guided by our general experience in the past of such publications. We consider, therefore, that the proper rule to be observed in this country with regard to pending proceedings is the one embodied in the explanation to Article 204 of the Constitution, namely, that fair comment on the final decisions of the Courts should be permitted only after the expiry of the period of limitation for appeal, if any, and not during the pendency of the appeal.
45. Now, in the present case, Mr. M. Anwar had himself filed an appeal in the Supreme Court in Asma Jilani's case against the original judgment o the Lahore High Court. The hearing of the appeal was scheduled to com--mence on the 16th of March 1972, whereas Mr. Anwar's interview was published in the weekly 'Kahani' bearing the date 10th March 1972. In this interview he had expressed himself strongly against the decision of the Supreme Court in Dosso's case, and this was also his main stand in the appeal filed by him. We have already seen that in his interview Mr. Anwar had not only questioned the correctness of the judgment in that case but had also attributed motives to the learned Chief Justice who delivered the leading judgment, and bad also indicted, in no mild terms, the other Judges of the Supreme Court who had concurred with the learned Chief Justice. Even if we may not go along all the way with the learned Attorney-General in think--ing that the publication of the interview, a few days before the commencement of the bearing of the appeal in Asma Jillani's case, was intended to "brew-beat and blackmail" the Judges of this Court, it is clear that the publication was indeed calculated to influencing the mind of the Judges against endorsing the view taken in Dosso's case. It is irrelevant whether this was the intention of the respondents in publishing the interview or whether it did, in fact, influence the mind of the Judges in the desired direction; all that has to be seen is whether the publication had the tendency to prejudice their minds in the matter. We consider, therefore, that the publication in question also amounts to contempt of Court as it had the tendency to prejudice the determination of a matter pending before this Court.
46. The fact that, while deciding Alma Jilani's case, the Supreme Court did ultimately accept the position canvassed by Mr. Anwar against the doctrine expounded in Dosso's case, and expressed itself rather strongly in this behalf, has, however, no bearing on the nature of the publication we are considering here. It is axiomatic that the Court is bound to decide a pending cause in favour of one party or the other, and such subsequent decision, if it endorses the view expressed in the offending publication, cannot in any manner detract from its pernicious tendency to prejudice the determination of the cause when it was still pending. At best such judicial endorsement might be urged as a mitigating circumstance in the matter of punishment for the contemner.
47. Having found that the impugned publication does indeed amount to contempt of Court, in the nature of scandalisation of the Court as well as being prejudicial to the determination of a pending cause, we now proceed to examine the contention that this contempt is not punishable by the present Supreme Court as it is an entirely different Court from the one which decided Dosso's case.
48. It will be seen that this argument has reference only to one aspect of the contempt committed by the respondents, namely, scandalisation of the Court as it existed in 1958. The second aspect of this contempt is clearly punishable by the present Court, as it relates to a matter which was pending before it.
49. The Supreme Court which decided Dosso's case in 1958 was established under Article 148 of the 1956 Constitution. It replaced the then existing Federal Court of Pakistan. Clause (1) of Article 227 of that Constitution provided for the continuance in office of the Chief Justice and other Judges of the Federal Court as the Chief Justice and other Judges of the Supreme Court of Pakistan. Clause (3) of the same Article contemplated that all legal proceedings pending in the Federal Court immediately before the Constitution day, would stand transferred to and be deemed to be pending before the Supreme Court for determination; and any judgment or order of the Federal Court delivered or made before the Constitution day would have the same force and effect as if it had been delivered or made by the Supreme Court. Clause (4) of this Article further provided that without prejudice to the other provisions of the Constitution, the Supreme Court would have the same jurisdiction and powers as were exercisable by the Federal Court immediately before the Constitution day. As a result of these provisions the Supreme Court of Pakistan, as established under the 1956 Constitution, was undoub--tedly a continuation of the Federal Court as existing immediately before the Constitution day.
50. When the 1956 Constitution was abrogated on the imposition of Martial Law on the 7th of October 1958, the Supreme Court and all other Courts in existence immediately before the proclamation of Martial Law were continued in being and in their powers and jurisdiction, under clause (2) of paragraph 2 of the Laws (Continuance in Force) Order, 1958, subject to the provisions of this Order.
51. The 1962 Constitution was enacted on the Ist of March 1962 and enforced from the 8th of June 1962.
52. Article 49 thereof provided for the setting up of the Supreme Court of Pakistan. Under clauses (1) and (2) of Article 234 the Chief Justice of Pakistan and other Judges of the Supreme Court of Pakistan holding office immediately before the commencing day were continued in service on the same terms and conditions as were applicable to them immediately before that day. Under clause
(4) of the same Article it was provided that they shall take oath under the new Constitution as soon as practicable after the commencing day. As a result of these provisions, the Supreme Court of Pakistan, as set up under Article 49, automatically came into existence on the commencing day. Of course, the Chief Justice and the Judges had to take a new oath of office under clause (4) of Article 234 of the Constitution.
53. The learned Attorney-General placed reliance on Article 227 and Clause (5) of Article 234 of the 1962 Constitution for the purpose of showing that the Supreme Court of Pakistan, established under Article 148 of the 1956 Constitution, and continued in being under Paragraph 2 (2) of the Laws (Continuance in Force) Order, 1958, continued to exist and function under the new Constitution.
54. Article 227 of the 1962 Constitution was in the following terms : "227.-(1) Any reference in this Constitution to the President shall, for the purposes of this Constitution at any time before the commenc--ing day, be read as a reference to the person who at that time is President of Pakistan, and any reference in this Constitution to the Governor of a Province shall, for the purposes of this Constitution at any time before the commencing day, be read as a reference to the person who at that time is Governor of the Province.
(2) Any reference in this Constitution to the Chief Justice or a Judge of the Supreme Court, or to the Chief Justice or a Judge of a High Court, shall, for the purposes of this Constitution at any time before the commencing day, be read as a reference to the Chief Justice of Pakistan, to a Judge of the Supreme Court of Pakistan as consti--tuted at that time or to the Chief Justice or other Judge of the High Court of a Province as constituted at that time, as the case requires."
55. Mr. Sharifuddin Pirzada contended that this Article appeared to have been included in the Constitution for a limited purpose, namely, the performance of certain interim or transitional functions during the period intervening between the enactment of the Constitution on 1-3-62 and its enforcement on 8-6-62. He submitted that this Article could not be cons--trued as meaning that the old Supreme Court or the High Courts had continued in existence under the new Constitution.
56. A reference to the terms of this Article does indeed show that it is not in the nature of a provision for the continued existence and functioning of the President or the Chief Justices, and Judges holding office under the previous Constitutional Order ; but it does, nevertheless, indicate a sense of continuity t by providing that, for the purposes of this Constitution, in relation to a period prior to the commencing day, any reference to the holders of these offices shall be construed as a reference to the incumbents in office immediately before the commencing day.
57. Turning now to clause (5) of Article 234, we find that it contemplated that : "Subject to this Constitution and the law-
(a) all civil, criminal and revenue Courts exercising jurisdiction and functions immediately before the commencing day shall, as from that day, continue to exercise their respective jurisdictions and functions ; and
(b) all authorities and all officers (whether judicial, executive, revenue or ministerial) throughout Pakistan exercising functions immediately before that day shall, as from that day, continue to exercise their respective functions."
58. In the index as appearing at the end of the 1962 Constitution this clause is referred to as a provision for the continuance of the jurisdiction and functions of the Supreme Court. However, it is difficult to place this meaning on this clause for the reason that the Supreme Court has generally not been regarded as falling in the category of a civil criminal or revenue Court, nor have the Chief Justice and Judges been described as judicial officers. The Court as well as the Chief Justice and the Judges fall in a distinct category created by the Constitution, and different from civil, criminal and revenue Courts and tire presiding officers thereof. We consider, therefore, that. Irrespective of the entry appearing in the index to the 1962 Constitution, clause (5) of Article 234 has no application to the Supreme Court and the Chief Justice and Judges thereof.
59. There does not appear to be any provision in the 1962 Constitution analogous to clause (3) of Article 227 of the 1956 Constitution which, as already seen, specifically laid down that all legal proceedings pending in the Federal Court immediately before the Constitution day, stood transferred to, and be deemed to be pending before, the Supreme Court for deter--mination. It appears that it was not considered necessary to include any such provision for the reason that there was no change in the nomenclature of the Supreme Court, as was the case in 1956 when the Federal Court was transformed into the Supreme Court. However, two Articles of the 1962 Constitution appear to have relevance in this connection. Namely, Articles 225 and 250. Clause (1) of Article 225 laid down that all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. Clause (2) of the same Article, inter alia, repealed the Laws (Continuance in Force) Order, 1958, with effect from the commenc--ing day. Under Article 250, it was provided that where a law is repealed or is deemed to have been repealed by, under, or by virtue of this Constitution, the repeal shall not, among other things, affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation. Liability, penalty, forfeiture or punishment, and such investigation, legal proceeding or remedy etc. May be instituted, continued or enforced, as if the law had not been repealed.
60. The combined effect of these provisions was that all pending pro--ceedings in the Supreme Court as well as the other Courts in the country were to continue in accordance with the law under which they were com--menced or instituted. It also followed that such proceedings would be continued in the same forum in which they were commenced, unless the Constitution expressly provided to the contrary. As a result, the Supreme Court established under the 1962 Constitution automatically assumed jurisdiction in all matter which were pending before the Supreme Court immediately before the commencing day. This position was not altered in any manner by the fact that the 1962 Constitution may have varied the jurisdiction of the Supreme Court as compared to the one available under the 1956 Constitution.
61. Mr. Sharifuddin Pirzada referred us to certain observations made by Cornelius, C. J. In Jamal Shah v.
62. Election Commission (PLD 1966 SC 1) in support of the submission that an entirely new Supreme Court, having no connection with its predecessor came into existence under the 1962 Constitution.
63. While discussing the scope of Article 171 of the 1962 Constitution, creating a bar in the way of the Courts taking cognizance of election -disputes, his Lordship observed (on page 25 of the Report) that "the question is clearly not one of the existing jurisdiction of the Superior Courts being taken away. Article 98 is a wholly new provision and confers a new jurisdiction. To regard it as a continuation of the power conferred upon the Supreme Court and the High Courts by Article 2 (4) of the Laws (Continuance in Force) Order, 1958, to issue writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, is in my view an error. The Constitution of 1956 gave similar power to the Supreme Court and the High Courts by expression in more than one Article, but it is well recognised that by the abrogation of the Constitution, and the introduction of Martial Law, a wholly new source of a plenary authority came into existence and it was from this new source that the new power in Article 2 (4) of the Order of 1958 was derived. Again, when the Martial Law was brought to an end, the Laws (Continuance in Force) Order was revoked with effect from the date of the commencement of the Constitution of 1962, which itself was given to the country by the President, "in exercise of the mandate given to be on the Fourteenth day of February one thousand nine hundred and sixty, by the people of Pakistan." This again was a wholly new source of plenary authority, and it was from this source that simultaneously the High Courts were given jurisdiction under Article 98, and on the other hand, the final determination of election disputes was placed within the exclusive jurisdiction of specified authorities by Article 171 . . . . It must be observed that any assumption that the power under Article 98 is something inherent in the High Court, something of earlier origin than the Constitution of 1962, is one that cannot be supported. The power given by Article 98 comes as a matter of first conferment by the Constitution and it cannot be placed on any higher footing than the authority which can be claimed for Article 171 in the same Constitution.
64. It is to be noted with care that Article 171 subsection (1) is not made expressly subject to this Constitution, and that Article 98 confers power on the High Court "subject to the Constitution."
65. Consequently the terms of Article 171 (L) are to be construed and given their fullest meaning irrespective of anything contained in any Article of the Constitution".
66. It seems to us that these observations are hardly susceptible of the interpretation placed upon them by the learned counsel for the respondent. The question before the learned Chief Justice in Jamal Shah's case was not whether the High Courts established under the 1962 Constitution were entirely new institutions, having no connection with their predecessors functioning under the previous Constitution ; and accordingly any obser--vations made as to the nature and scope of the jurisdiction enjoyed by the High Courts under Article 98 of the 1962 Constitution, as compared to the corresponding provision of the 1956 Constitution, could hardly lead to the inference that the High Courts functioning under the 1962 Consti--tution were not in continuation of those functioning under the earlier Constitution. The change in the nature of the jurisdiction enjoyed by the High Courts under the two Constitutions was not of such a radical character as to lead to the inference that there was a break in their continuity, or that the pending proceedings could not be continued in the High Courts' after the promulgation and enforcement of the new Constitution. Any such inference would in fact be directly contrary to the provisions as contained in Articles 225 and 250 of the 1962 Constitution, which were` clearly intended to ensure continuity of the legal order obtaining in Pakistan immediately before the commencing day, subject always, of course, to the provisions of the said Constitution.
67. The question whether proceedings pending in the Supreme Court before the commencement of the 1956 Constitution could be continued under the old law after the commencement of the 1962 Constitution, fell for consideration in Zafarullah Khan v. Custodian of Evacuee Property (PLD 1964 SC 865), and it was held that "in the absence of an express provision in the new Constitution of 1962 to that effect, an appeal admitted under the 1956 Constitution did not abate. The appellants were entitled under the Constitu--tion of 1956 to seek special leave to appeal from the Supreme Court, and when such leave was granted, the right became a vested right to have the decision of the tribunal appealed from examined by the Court. There was nothing in the new Constitution which could operate to take away a right so vested. Again, by virtue of Article 250 of the new Constitution, the repeal of a law effected by that Constitution was not to affect anything already done or suffered under that law. One of the laws so repealed was the Laws (Continuance in Force) Order, which had the effect of keeping the previous Constitution of 1956 in operation in the relevant respect, but at sub-Constitutional level. Consequently, an appeal having been com--petently admitted by the Court under power derived from the previous Constitution, in the absence of a provision for abatement, the Supreme Court had jurisdiction to proceed with and to decide such an appeal."
68. This view was reiterated in Sutlej Cotton Mills Ltd. v. Industrial Court (PLD 1966 SC 472) and S. A.
69. Haroon v. Collector of Customs (PLD 1967 SC 458). In all these cases it was assumed that the Supreme Court, as established under the 1962 Constitu--tion, was indeed a continuation of the old Court functioning under the 1956 Constitution and the only question was whether the pending proceedings were to be continued under the old provisions, or were to be affected by changes in the jurisdiction of the Supreme Court as introduced by the 1962 Constitution. The Court answered this question in the negative in view of the clear provisions contained in Article 250 of the Constitution in regard to the continuance of pending proceedings.
70. For all these reasons, we have no doubt in our mind that the Supreme Court as establishing under the 1956 Constitution continued in existence, without a break, even though the 1956 Constitution itself was abrogated in 1958 on the proclamation of Martial Law, and the Laws (Continuance in Force) Order, 1958, was in turn repealed by Article 225 of the 1962 Constitution, which provided for the establishment of a Supreme Court, M and at the same time contemplated that the Chief Justice and the Judges in office immediately before the commencing day shall continue to hold their respective offices, but take a new oath of office and allegiance to the new Constitution as soon as practicable after the commencing day. Such being the case, the Supreme Court functioning under the 1962 Constitution would be fully competent to punish any contempt relating to the Supreme Court of Pakistan or any of its Judges as constituted in 1958.
71. The present proceedings before us were instituted on 17-3-1972 under Article 123 of the 1962 Constitution. As is well known, the 1962 Constitution was abrogated on the 25th of March 1969 on the proclamation o the second Martial Law, but under paragraph 6 (2) of the Provisional Constitution Order, 1969, the Supreme Court, the High Courts and all other Courts and tribunals were enabled to exercise the same power and jurisdiction as they had immediately before the issuance of the procla--mation. Accordingly, the Supreme Court had the jurisdiction to deal with this matter under Article 123 of the 1962 Constitution at the time was initiated. The Interim Constitution was enforced with effect from the 21st of April 1972. Article 177 thereof provided for the setting up of the Supreme Court of Pakistan. Under Article 285, the Chief Justice and the Judges of the Supreme Court as well as of the High Courts were continued in office, and it was further provided that, as soon as practicable after the commencing day, they shall make before the appropriate person an oath in the prescribed form. All existing laws were continued in operation, subject to this Constitution, under Article 280, whereas the proclamation of Martial Law of the 25th of March 1969 was revoked, and the various orders issued thereunder were repealed as specified in the sixth Schedule to the Constitution. However, under Article 295 all pending proceedings etc. Were saved, so as to be continued under the old laws.
72. The Interim Constitution of 1972 was later replaced by the 1973 Constitution with effect from the 14th of August 1973. Here again, Article 175 provided for the establishment of the Supreme Court of Pakistan as well as the Provincial High Courts. The Chief Justice and Judges of the Supreme Court and the High Courts, holding office immediately before the commencing day of this Constitution, were also continued in office under clause (2) of Article 275, and a provision was once again made in clause (4) of this Article for them to take a fresh oath under the permanent Constitution. The existing laws were continued in operation under clause (1) of Article 268, and under Article 264 it was provided that pending proceedings etc. Would continue under the old laws in spite of their repeal by, under or by virtue of the Constitution.
73. The provisions contained in the Interim Constitution of 1972 as well; as in the permanent Constitution of 1973 follow the same pattern as was adopted in the 1962 Constitution to ensure the continuity of the legal order. The functioning of institutions like the Supreme Court, the High Courts and other civil, revenue and criminal Courts, and the continuance in office of the Chief Justice and Judges of the Supreme Court and the High Courts. As well as of all other persons in the service of Pakistan. It follows, there fore, that it is a misconception to think that the present Supreme Court, or the Supreme Court constituted under the 1962 Constitution, was, in any manner, a new or a different institution. The correct position appears to be that the Supreme Court and the High Courts established under the 195 Constitution have been assiduously maintained intact in spite of successive constitutional changes ; and their continuity is reflected not only by the fact that their Chief Justices and the Judges have been continued in office, but also by the fact that all pending proceedings have been continued b the respective Courts under the laws under which they were initiated o commenced. As a logical corrollary, it also follows that these Court continue to be competent to punish any acts amounting to contempt even, though they relate to the functioning of these Courts or these Judges as constituted under earlier constitutional instruments.
74. It now remains for us to examine the contention raised on behalf of the respondents that criticism of a retired Judge, howsoever worded, would not amount to contempt of Court, for the reason that he ceases to perform any judicial functions and is not a constituent of any Court.
75. It seems to us that the answer lies in what constitutes the essence of the offence of contempt of Court. It will be seen from the authorities, to which we have already referred in an earlier part of this judgment, while considering the question whether the offending Article constitutes contempt or not, as well as from the terms of clause (2) of Article 123 of the 1962 Constitution, that the offence of contempt of Court is committed if there is interference with or obstruction of the process of the Court ; or scandalisation of the Court or any Judge of the Court such as is calculated to diminish the dignity or authority of the Court and to impair public confidence in its independence, impartiality and integrity. As observed in the case of Fakhre Alam v. State (PLD 1971 SC 525), the object of contempt proceedings p is not the vindication of the character or conduct of an individual Judge, but to protect the Court from attack and calumny, so as to keep the fount of justice pure and unsullied and to maintain public confidence in the ability and power of the Courts to administer justice.
76. Now, if a Judge has retired and has ceased to perform judicial functions, and be a constituent of any Court, it is difficult to hold that any criticism of his past judicial conduct would have the tendency to interfere with or obstruct the process of the Court to which he once belonged, or would in any manner lower the dignity and authority of that Court --provided of course that the criticism is directed only against the acts of the individual Judge concerned and does not cast any reflection on the Court as a continuing institution. While the terms "Court' and 'Judge' are very often used as interchangeable, this is obviously so only in the case of serving Judges and not in respect of those who have retired and, therefore, do not constitute the Court. It follows, therefore, that an attack on the conduct and character of a retired Judge, without reflecting on the Court as such, cannot appropriately be made the subject-matter of contempt proceedings.
77. It may be said that such a view would leave a retired Judge without any redress, in case he is maligned in respect of his past judicial functions and conduct. This does not appear to be correct for he can always seek the remedy available to him in a Court of law as a private citizen. There is nothing unnatural or incongruous in this situation as the protection afforded to him as a serving Judge was obviously intended for a specific purpose, namely, the protection of the fountain of justice, a purpose; which could not be invoked after his retirement.
78. This conclusion, however, does not in any manner help the respondents before us. The offending Article not only criticised the former Chie Justice by attributing motives for his conduct in delivering certain judgments, but also condemned all the other Judges of the Supreme Court for having discarded the oath which they had taken to defend the Constitution. Tile R article thus amounted to a denunciation of the Supreme Court as such and not merely the Chief Justice or any other Judge in his individual capacity. The fact, therefore, that the Chief Justice concerned or any of the other Judge serving on the Supreme Court in 1958 have since retired, makes no difference to the nature of the offence committed by the respondents.
79. For the foregoing reasons, we have come to the conclusion that the interview or article authored by Mr. M. Anwar, and published in the weekly magazine 'Kahan? By the other two respondents, clearly amounts to contempt of the Supreme Court for the reason that it not only scanda--lised the Supreme Court, but was also calculated to influencing the mind of the Judges against endorsing the view taken in Dosso's case while hearing the appeal in Asma Jillani's case, which was scheduled to come up before them only a few days after the publication of this interview. We and also of the view that the Supreme Court, as at present constituted, is fully competent to punish this contempt. We would accordingly convict all the three respondents of committing contempt of this Court.
80. In the matter of sentence, however, we are inclined to agree with Mr. Sharifuddin Pirzada that there are certain important mitigating circum--stances, namely, that the decisions in the cases of Tamizuddin and Dosso had indeed caused misgivings in the public mind, and had been criticised at least in private ; that the decision in Dosso's case was reversed by the Supreme Court in Asma Jilani's case, and the doctrine previously expounded as to the legal justification of a successful revolution was strongly dis. S approved ; that Mr. M. Anwar had, even on a previous occasion, given expression to his dissent from this doctrine in a publication in the weekly 'Chatan', at a time when his views were not likely to affect the fat of any pending case ; and that the offending article was published nearly for year ago. In view of 411 these circumstances, we consider that the ends of justice would be met if the three respondents are severely reprimanded. We order accordingly.
81. Before parting with the case, we would like to observe that it ha been a matter of considerable regret to us that these proceedings had to be drawn up against a senior advocate of the standing of Mr. M. Anwar It seems to us that the members of the legal fraternity have a special duty to refrain from doing anything which has a tendency to weaken public confidence in the integrity and impartiality of the Courts of law ;and, in any case, to act with restraint and dignity when offering comment and criticism on the working of the Courts. We would have been inclined to deal much more strictly with the other two respondents, responsible for publishing --$he contemptuous matter in question, but for the fact that they clearly acted on the assumption that anything coming from a senior Advocate could not be, against the law.
82. S. A. H.Offenders severely reprimanded.