SYED MANZOOR HUSSAIN GILANI, J.---These contempt proceedings have arisen under the following circumstances: In two counter-appeals, captioned "Muhammad Maarulf v. Ratasab Hussain and others" arid "Muhammad Sadique v. Ratasab Hussain and others", during the course of arguments, the learned counsel for the parties agreed with the suggestion of the Court that the dispute between the parties can be resolved by the actual measurement of the plots in dispute. The learned counsel for the parties agreed that the Town Planner and Overseer of the Mirpur Development Authority (M.D.A.) be directed to inspect the spot and furnish the report according to the measurement of the plot. Consequently on September 21; 1994, the Court ordered the Town Planner and Overseer of the M.D.A. To appear in the Court for seeking the directions of the Court in this behalf. The Overseer and Assistant Town Planner M.D.A. Appeared in the Court on September 22, 1994, who were directed that after spot inspection a measurement report shall be submitted with respect to the plots in dispute in the above-captioned appeals. They were directed to submit the report along with the site plan showing the encroachment if any in Plot No.428. The officials were directed to submit their report on November 10, 1994. On 21-12-1994 when the file was placed before my learned brother Mr. Justice Khawaja Muhammad Saeed (the learned Chief Justice now), the learned Judge passed the following order: "On September 21, 1994, during the course of arguments before my learned brother Mr. Justice Syed Manzoor Hussain Gilani, the learned counsel for the parties the matter in dispute be resolved through measurement. A notice was issued to Town Planner and Overseer of Mirpur Development Authority to appear before the Court on September 22, 1994. On this date, the following order was passed: 'The Overseer and Assistant Town Planner who were summoned yesterday are present in the Court.
They are directed that after spot inspection and measurement, they shall submit a. Report with respect to the actual measurement of the Plots Nos.425, 427 and 428 and they shall also state by preparing a site plan as to whether Plot No.428 is any way encroached by the allottees of the Plots Nos.426 and 427 and if so, which side of the plot is encroached. The learned Advocates, who are present in the Court stated that the site plan of the area is already on the file of the Court as Exh. PF.
The representatives of the Department state that the Master Plan of the area is with the Development Authority. Besides the actual spot inspection and measurement, the measurement shall be conducted on the basis of site plan Exh. PF and Master Plan. The authorities are directed to intimate the parties and their. Advocates well before the spot inspection. The Reader of the Court shall accompany the Commission alongwith the file of the Court. The report shall be furnished on November 10, 1994. In spite of the above-referred directions of the Court, the Overseer and Assistant Town Planner who were present before the Court failed to submit the report about the measurement of the plots, till today, even though they were directed to furnish the same on November 10, 1994. In my opinion, the above-referred facts constitute sufficient grounds for believing that the abovementioned two employees of Mirpur Development Authority have committed contempt of Court as visualized by section 45 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and section 3 of the Contempt of Court Act, 1993. Therefore, it appears necessary to proceed against them in the interest of effective administration of justice. Moreover, certain provisions contained in Contempt of Court Act, 1993, prima facie, are violative of the provisions contained in section 45 of the Interim Constitution Act, 1974. Therefore, besides learned counsel for the parties, a notice be issued to the learned Advocate-General to appear before the Court and assist in the matter.
The file shall, therefore, be placed before the learned thief Justice today, in view of section 7 of the Contempt of Court Act, 1993 for the constitution of a larger Bench. "
3. A Full Bench was constituted by the learned Retired Chief Justice on 21-12-1994 in view of above- referred order. The learned Retired Chief Justice was again pleased to order on 15-5-1995 as: "During the proceedings in this appeal contempt proceedings were initiated against Sarfraz Ahmed, Assistant -Town Planner, M.D.A., Mirpur and the Full Bench was constituted to hear the contempt case. Through inadvertence in the interim order in this appeal has also been recorded that it is to be heard by the Full Bench. This appeal is to be heard by the Bench consisting of my learned brother Mr. Justice Khawaja Muhammad Saeed. There appears no just and valid reason for constituting the larger Bench. This appeal shall, therefore, now be heard and decided by my learned brother Mr. Justice Khawaja Muhammad Saeed. The file relating to contempt proceedings be separately prepared. To come up for arguments before the learned Judge on 3-7-1995."
These contempt proceedings were, therefore, separately taken up against the contemner Sarfraz Alain, Assistant Town Planner only by the Full Bench. But the same could not assemble for one reason or the other till the retirement of the learned Chief Justice. On 11-4-1996 when this case was already fixed for hearing, the Full Bench was reconstituted consisting of the Judges available at Circuit Bench Mirpur. The Court in view of the proposition evolved by the learned Judge, now the learned Chief Justice, thought it proper to seek the assistance of senior Advocates on the point.
Consequently Messers Abdul Majid Mallick. Raja Muhammad Siddique Khan, Chaudhry M. Sharif Tariq, Chaudhry Muhammad Azam Khan and Masud Khalid, Advocate were requested to assist the Court. Arguments in the case were heard on April 13, 1996.
4. During the proceedings, pending before hearing the arguments, Mr. Sarfraz Alam, Assistant Town Planner filed an application on 18-1-1995 in the Court requesting for adjournment. On 12-3-1996, the Assistant Town Planner submitted an affidavit in the Court that the sister of his immediate officer had died on 9th of February, on account of which he could not appear in the Court on 10-2-1996, neither could he comply with the order of the Court on account of the said death and tendered unconditional apology. He again submitted unconditional apology for his default on 20-3-1996.
5. Mr. Liaquat Ali Khan, Advocate representing the contemner at the very outset of the arguments submitted unconditional apology and stated that though the fault committed by his client is not wilful, but he repents for the default and places himself at the mercy of the Court. No further argument in this behalf was tendered by the learned Advocate.
6. We have heard the learned Advocates Messers Abdul Majid Mallick, Chaudhry M. Sharif Tariq, Chaudhry Muhammad Azam Khan, Advocate--General as well as Additional Advocate-General on the point evolved by the order of the Court dated 21-12-1994 with respect to the constitutionality of the Contempt of Court Act, 1993 (hereinafter to be referred as Contempt Act).
7. Mr. Abdul Majid Mallick the learned Advocate appearing-as amicus curiae submitted that section 45 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Constitution) is comprehensive enough including in it all that can constitute or be termed as the Contempt of Court. According to the learned Advocate, the question of contempt is between the Court and the contemner and no third party can substitute its ifs and buts as to what constitutes the contempt or what does not amount to contempt, either by law or by rules, except prescribing the procedure for regulating the power vested under section 45 of the Constitution. The learned Advocate referring to following underlined lines of subsection (1) of section 7 of the Contempt Act: Procedure for Supreme Court and High Court.--(1) Whenever it appears to the Supreme Court or the High Court that there is sufficient ground for believing that a person has committed contempt of Court and that it is necessary in the interest of effective administration of justice to proceed against him, it shall make an order in writing to that effect setting forth the substance; of the charge against the accused, and, unless the Chief Justice is already on the Bench, the Judge or Judges take congnizance of the matter, shall forward the case to the Chief Justice for constitution of Bench. The Bench shall comprise of not less than two Judges, unless the Chief Justice for the reason to be recorded, otherwise directs." contended that the entire complexion of section 45 of the Constitution and the Contempt Act, in view of the above-referred lines is changed and the power vested in the Court under section 45 of the Constitution are taken away by the Contempt Act, which is a gross violation of the Constitution.
The learned Advocate further contended that the Legislature is empowered under subsection (3) of section 45 of the Constitution to regulate the powers vested in the Court under subsections (1) and
(2) of section 45 of the Constitution, not to take away the power vested by it. According to the learned Advocate, the above-referred lines of subsection (1) of section 7 and all the clauses of section 3, section 6 and section 8 of the Contempt Act are violative of the power vested in the Supreme Court and High Court by section 45, as Courts of record. The learned Advocate further submitted that the Contempt Act is a regulatory law in nature not the substantive law, hence the provisions of the Act which run counter to the substantive law are without lawful authority and are against the Constitution. The learned Advocate further submitted that the provisions of section 45 of the Constitution override all other provisions of the Constitution in view of the opening words of subsection (2) of section 45 i.e.: "A Court shall have power to punish any person...", thus the exceptions provided under Contempt Act are violative of the entire scheme of the Constitution. The learned Advocate further submitted that the purpose of giving overriding powers is to maintain the authority of law and save the public confidence in the judiciary from being impaired or jeopardized.
8. Chaudhry M. Sharif Tariq, Advocate submitted that the Contempt Act is menat to provide check and balance on the powers of the Court in initiating the contempt proceedings. According to the learned Advocate, the Legislature is competent under subsection (3) of section 45 of the Constitution to regulate the law relating to the contempt which includes in itself providing exceptions to what constitutes contempt. He further submitted that the contempt Act provides the procedure for initiating, conducting/proceedings of contempt. However, the provisions of the Act which go beyond the regulation i.e. Which take away the power of contempt or subject them to unwarranted procedure, are against the Constitution, such as last lines of section 7(l) and exceptions to section 3, section 6 and section 8. The learned Advocate, more or less agreed with Mr. Abdul Majid Mallick. Chaudhry Muhammad Azam Khan, -Advocate arguing the case submitted that the power of the Legislature to regulate the law of contempt is not the general power of the Legislature, but a specific and restricted power given under subsection (3) of section 45 of the Constitution. According to him, under this subsection law is .To regulate the power vested in the Court under subsections (1) and (2) of section 45 and subsection (3) of section 45 only empowers the Legislature to provide the procedure for exercise of the powers vested by section 45 of the Constitution, not to put .a check on the powers of the Court or take away the powers to initiate the contempt proceedings and to declare what amounts to contempt or what does .Not amount to it, when Constitution itself is self--, speaking.
9. The learned Advocate-General assisting the Court contended that the power is vested, in the Court under section 45 of the Constitution, that power is intact and is not taken away, neither can that be taken away by law or rules. The Court can proceed under the substantive power provided by section 45 of the Constitution irrespective of Contempt Act, however, the procedure of fair trial and sentence is provided by the Contempt Act and it is for regulating the power which has. To be adhered to. He referred 1995 SCR 176 in which the contemners were convicted under section 45 of the Constitution read with section 4 of the Contempt Act.
10. In the case in hand, two propositions are involved which require the determination of the Court: The first is with respect to the conduct of the respondent as to whether it amounts to contempt of Court or not and second as formulated by the learned Chief Justice when his lordship was a Judge, as to which provision or provisions of the Contempt Act are derogatory to section 45 of the Constitution. We shall first discuss the constitutionality of the Contempt Act.
11. Before examining the controversial provisions of Contempt Act, the powers of the contempt vested under section 45 of the Constitution in the superior Courts (hereinafter to be referred as Courts) may be set forth.
Section 45 of the Constitution is as follows: "45. Contempt of Court.--(1) In this section 'Court' means the (Supreme Court of Azad Jammu and Kashmir) or the 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 section may be regulated by law and subject to law by rules made by the Court."
The above-referred section is similar to section 204 of Constitution of Pakistan, 1973.
12. A perusal of the section reveals that the powers vested in the Courts are not subjected to the other provisions of the Constitution nor to any law, the powers thus are overriding and the superior Courts are all powerful' to punish any person found guilty of any omission or commission visualized by subsections (1) and (2) of section 45. The only exception which can be accepted in this behalf is with respect to the persons immuned from the legal process under section 52 of the Constitution and that too, shall be available till such persons are holding that Constitutional office. There remains no bar under the Constitution to proceed against them after they cease to hold the office by virtue of which that privilege or immunity is granted. The Supreme Court of Azad Jammu and Kashmir in the case "Chief Secretary/Referring Authority 'of Azad Jammu and Kashmir v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K 95) has held as follows: "On the basis of the above discussions we are of the view that immunity, and that too in temporary nature, is allowable to the representative office holders only during the period they are in saddle.
During this period the action for their illegal acts and omissions remains in suspended animation and no sooner they cease to hold the office the acts and omissions are available for an action."
13. The power vested under the Constitution is, however, to be regulated by the law and the rules of the Court. The law definitely denotes to the law made by he Legislature by an Act of the Assembly.
However, any such law is simply to regulate the powers vested in the Superior Courts by this section not to abridge or put any embargo or make any exception to the exercise of the power. The limit and extent of a person's omission or commission to be construed as contempt is the power of the Court to determine, not of the Legislature to prescribe. Law can only regulate the exercise of the powers already vested that means it can prescribe the procedure and sentence. The power of the Legislature to make the law stems from subsection.(3) of 8 section 45, not from any other provision of the Constitution authorizing the Legislature to make law to regulate the process. The general power of the Council or Assembly under Schedule Third or section 31 of the Constitution respectively are subject to this section. Any deviation, overriding, intermingling or substituting its own interpretation over the powers conferred by this section would amount to violating the provisions of the Constitution.
14. The word 'regulate' is not defined in the Constitution, hence its dictionary meanings have to be looked into the word 'regulate' is defined in the 76 Corpus Juris Secundum at page 610 as: Regulate". The word 'regulate' is derived from the Latin words 'rego' and 'regula'. It is a word of broad import, having a broad meaning, and is very comprehensive in scope. The word is difficult to define in other terms because it involves a conception for which it stands more accurately than any synonym and there is diversity of opinion as to its meaning and its application to a particular state of acts. Some Courts giving to the term a somewhat restricted and others giving to it a liberal construction.
Again at page 612 of the same treatise as: "Regulate' is further defined as meaning to put or keep in good order; to methodize; to arrange; to dispose; to produce uniformity of motion or action. The term is also employed as meaning to foster; to protect; to provide for.
"The word 'regulate' ordinarily indicates not so much the creation or establishment of a new thing as the arranging in proper order and controlling that which already exists and it has been held to contemplate or imply the continued existence of the subject-matter to be regulated."
The word "regulate" is defined in Volume 36-A of the Words and Phrases by West Publishing Co. As at pages 303 to 305 as:-- "A power to regulate implies a continued existence of the matter to be regulated. State v. Clarke 54 Mo. 17,33,14 Am.Rep. 471: State v. McCann, 72 Tenn. (4 Lea) 1,13. "
"To regulate" in the sense intended is to foster, protect and control the commerce with appropriate regard to the welfare of those who are immediately concerned as well as the public at large and to promote its growth and insure its safely: Great Northern Utilities Co. v. Public Service Commission 293 pp. 294, 301, 88 Mont.
180. "
While the word 'regulate' has been given a comprehensive meaning and construed to signify both Government and restriction thereby including in an act all subject germane to the object named it does not so much imply creating a new thing as arranging in proper order and controlling that which already exists:-Cote v. Village of Highland Park 139 N.W. 69, 74, 173, Mich. 201."
To regulate' is to fix or control the manner in which a thing is to be done to prescribe a rule or method for doing it. It is comprehensive enough to cover the exercise of authority over the whole subject to be regulated: Southern R.Co. v. Russell 112 S.E 700, 703, 133 Va. 292."
Similarly the word 'regulate' is defined in the Fifth Edition of Black Law Dictionary at page 1156 as: "Regulate. To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws. The power of Congress to regulate commerce is the power to enact all appropriate legislation for its protection ox advancement; to adopt measures to promote its growth and insure its safety; to foster protect, control and restrain: Virginian Ry. Co. v. System Federation No.40, Railway Employees Department of American Federation of Labor, C. C. A. Va 84 F. 2nd 641, 650."
17. A comprehensive reading of the above definition of the word' regulate', cannot making of the law prescribing the manner, method and procedure of the exercise of the power by the Court, not controlling its power, but arranging the same in a way that a fair trial is ensured. Even if the .Law and rules are not framed for regulating the power, the superior Courts are still at C liberty to exercise the power vested in them under this section to punish any person for contempt of Court; and even after framing the law and rule, if any of their provision restrict, curtail or abridge the powers of Courts, that shall be ignored as non-existent and the Courts can proceed in the matter.
We may refer here a few authorities from India and Pakistan dealing with the position of law to regulate the exercise of the power.
18. In "Ashfaque Ahmed Sheikh v. The State" (PLD 1972 Supreme Court 38), it is held at page 50 as: "The next contention of the learned counsel is that rules not having been framed under Article 123 of the Constitution, the power to punish under that Article is not available. I do not find any substance in this contention either. Clause (2) of Article 123 empowers a High Court and the Supreme Court to punish any person who is found guilty of any -of the offensive acts mentioned in sub-clauses (a) to (d) of that clause. The exercise of this power to punish for contempt is absolute and unqualified and is not dependent upon the rules which the Court concerned is authorized to make. Clause (3) of Article 123 which contains a reference to rules runs thus: '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."
This clause is an enabling provision and cannot be taken to have overridden the power to punish under clause (2). In the instant case, the punishment that can be imposed by the High Court is regulated by the Contempt of Courts Act, 1926 and the provisions of that Act were observed in imposing the sentence on the appellant. The mere fact that rules for regulating the exercise of the power to punish for contempt have not yet been made does not mean that the very power to punish has become nugatory."
18. In the case "The State v. Sheikh Shaukat Ali, Advocate and 3 others" (PLD 1976 Lahore 355), it is held at page 370 as: "B Another objection raised by Hakam Qureshi was that the power to punish for the contempt of a High Court is conferred on it by clause (2) of Article 204 of the Constitution. In clause (3) it is laid down that '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'. It was, therefore, argued before us that since after the promulgation of this Constitution, no law had been made to regulate the exercise of power conferred by this Article and as no rules have also been framed, therefore, Article 204 was a dead letter and lying dormant to confer any power on this Court to punish a contemner. The plea raised has no merit. Clause (3) simply talks of regulation of the exercise of the power conferred on this Court and does not make the power conferred by clause (2) dependent upon the existence of the aforesaid law or the rules. A similar of the aforesaid was raised in Ashfaque Ahmed Sheikh v. The State but was repelled by the Supreme Court. "
19. In Dr. A.N.M. Mahmood v. Dr. M.O. Ghani, Vice-Chancellor and others (PLD 1967 Dacca 67), it has held as: "The object of the discipline enforced by Court in case of 'contempt' is not to vindicate the dignity of the Judge in person, but to prevent undue interference with the administration of justice or the doing of an act the tendency of which is to deprive the Court of an unfettered course with a view to dispense even-handed and impartial justice in accordance with law. It is delinquent, if so found, to answer for the impediment which they have caused to the steady course of judicial administration.
The danger of such obstruction is greater in case of inferior Courts, for they have no such power as we propose to exercise in this case. It is not a new fangled jurisdiction, which is purely a creature of Article 123 of the Constitution. It is old as the system of law, which this Court has inherited The affidavits-in-opposition contain a number of frivolous defences which have been exploded more than hundred years ago. I have no desire to embarrass the lawyer who advised their drafting but I may remind him that 'prolix, frivolous and scandalous pleadings have been held to constitute, a contempt on the part of counsel' involved in drafting it. (See Oswad on 'Contempt', p.61).
Before parting with the case, I may add that we have sometimes heard, in this Court, an argument that Article 123 of the Constitution is a special kind of Constitutional provision which has been redeclared as a codified Constitutional jurisdiction by the present Constitution and that the said Article no longer authorises the Provincial Government under section 401 of the Code of Criminal Procedure to remit or suspend any punishment of sentence imposed by a Court. It has been pointed out that such power of remission and suspension of punishments are now exclusively vested in the President, in so far as punishment for contempt is concerned, under Article 18 of the Constitution. So far as committal for contempt for violation of an order of the High Court itself is concerned, this argument has the strongest possible substance, because the Constitution now provides for 'punishment' for contempt and the jurisdiction is directed specifically and expressly towards 'a power to impose punishment'. The jurisdiction has been described as a jurisdiction 'to punish' and 'punishment' is the essence and substance of that jurisdiction. No non-Constitutional and non-fundamental law can operate to moderate and mitigate the operation of the Constitution. The Code of Criminal Procedure cannot operate to derogate or to modify the Constitutional jurisdiction which is expressly directed towards 'punishment' which is specifically and, in express terms the gist of the Constitutional jurisdiction under Article 123. That is to say, the power of awarding 'punishment' is expressly given to the Supreme Court and High Court as a matter of Constitutional jurisdiction. In this context, such jurisdiction, namely, the power 'to punish cannot be whittled down or modified by any law which is not on the same footing as the.
Constitution itself. The Penal Code of Pakistan or any other Penal Law of the country is on the same footing as the Criminal Procedure Code, which must, if possible, be so construed as to allow it to co-exist with the former. The principle of co-existence as a canon of construction has arisen out of the necessity of reconciling laws of equal status so as to obviate a repugnancy. Nevertheless, the rule is artificial in its genesis and application but, the rule cannot be imported into a competition between a Constitutional provision and a law made by any other ordinary law making agency. The Constitution must prevail in its letter and spirit, against any other law which is not fundamental like the provisions of the Constitution.
20. The Supreme Court of Pakistan dealing with the contempt case in relation to General (Retd.)
Mirza Aslam Baig, in PLD 1993 Supreme Court 130 discussing the purpose of the contempt and expressing doubt about section 4 of the Contempt of Court Act, 1976 as enforce in Pakistan observed at pages 316 and 318 as follows: "Lastly, a distinction between sedition and contempt has to be brought out. In the former the penal provisions are meant to protect the structure of the executive while the law of contempt is meant to stop and punish any interference in the course of justice. Another aspect, however, is that while sedition is punished inter alia for purpose of deterence, the treatment in the case of contempt as held by this Court in a recent judgment, Shah Alam Khan v. Vice-Chancellor, Agricultural University, Peshawar (Constitution Petition No.2 of 1993 decided on 10th February, 1993), is pari materia with the parental jurisdiction of the Court combining and encompassing both firmness and compassion. There has been only a brief reference to the Islamic point of view on the question of contempt of Court, as well as some public interest therein. As proper arguments have not been heard at length to our satisfaction on this question and further the case is being deceded on other simple issues, it would not be proper to express any opinion leading to a final determination.
However, for further examination in a proper case the subject can be introduced thus: On the one hand there is a very emphatical command in the Holy Qur'an to the effect [in Urdu](Hum nay bani Adam KoWajab-ul-Takreem Banaya). There is an equally strong command in the Sunnah of our Prophet (s.a.w.s.) [in Urdu](Adliya Mumlikat Ki J.-- (Bunyad) Hai). A contemner is entitled as (Bani Adam) and 4then asa citizen to (Takreem) to the extent the circumstances of these case permit by keeping the other mandate in view that the juridiary represented by the Courts is that very foundation of an Islamic State. There is an other tradition in a decision of contempt case by Prophet Muhammad (s.a.w.s.) himself; when some one criticised his order, he was reprimanded the and then to the effect [in Urdu] (Tera Bura Howa)(Jab Main Adl Nahi Karon Ga To Kon Keray Ga) It is very difficult to fathom the implication of this precedent law in Islam; but some commentators and jurists have treated this admonition or reprimand as of the gravest type because the Prophet (s.a.w.s.) had not uttered any (Bura Kalma) for any (Momin). To elaborate this Sunnah command with reference to what is and was required in the peculiar circumstances of this case is not necessary any more. This very concept about the position of (Adl) with of course (Adliya) was also projected in a decision of the Shariat Appellate bench of this Court to the effect that after (Toheed) and (Rasalat), it is the next important foundational element in Islam and Islamic State. See Mujeeb- ur-Rehman v. Federal Government of Pakistan (1988 SCMR 897 para. 16). While closing the remarks on this subject it would be instructive to add to this judgment one view contained in (Abdul qazi) and the other an article (Toheen-e-Adalat ka Islami tasawar ) as Annexures D and E thereto.
There is another aspect of the matter. While rule 9 of the Order XXVII of the Supreme Court Rules shows that the contempt committed in face of the Court can be taken note of forthwith so as to determine not only guilt of a contemner but also to award punishment there and then; the principle underlying Rule 10 is that when at any time during the pendency of the proceedings the Court is satisfied with statement tendered in Court which relates to the purging of contempt, it is not always necessary to take any further action in that behalf. The concepts of parental jurisdiction then take over and play their part and 'any order that is considered firm by the Court, may be passed'. The principle of civil contempt that purge thereof is the forgiveness of the insult against the Court's dignity, which can be granted before the judgment or imposition of punishment or at any time before or after its finding, can be made applicable mutatis mutandis to the adjudication of criminal contempt also. That is, when the purge takes place the Court may clear or relieve the contemner from the charge. This very principle, it appears, was in the mind of the law-makers when the proviso to section 4 of the Contempt of Court Act was enacted (Thoueh it might be arguable whether it comes in conflict with the provisions contained in Article 204 of the Constitution or toes beyond the 'Regulation by law' permitted by the same Article). It provides that on being satisfied 'that the accused, whether after defending himself or without offering any defence, has purged himself of the contempt of Court, the Court may discharge the accused or remit his sentence'. With the earlier admonition and reprimand as already mentioned which was necessary and required in the circumstances and in the light of the foregoing discussion, we consider this case also fit for. Discharge. These proceedings are concluded with order accordingly."
21. The Supreme Court of India in the case of "K.L. Kapaur v. State of Tamil Nadu (AIR 1972 SC 858) dealing with the proposition held in paras.5 and 6 as follows: "5. The question is, does the power of the High Court of Madras to punish contempt of itself arise under the Contempt of Courts Act, 1952, so that under section 25 of the General Clauses Act, 1897, sections 63 to 70 of the Penal Code and the relevant provisions of the Code of Criminal Procedure would apply? The answer to such a question is furnished by Article 215 of the Constitution and the provisions of the Contempt of Courts Act, 1952 themselves. Article 215 declares that every High Court shall be a Court of record and shall have all powers of such a Court including the power to punish for contempt of itself. Whether Article 215 declares the power of the High Court already existing in it by reason of its being a Court of record, or whether the Article confers the power as inherent in a Court of record, the jurisdiction is a special one, not arising or derived from the Contempt of Courts Act, 1952, and therefore, not within the purview of either the Penal Code or the Code of Criminal Procedure. Such a position is also clear from the provisions of the Contempt of Courts Act, 1952. Section 3 of that Act provides that every High Court shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice in respect of contempt of Courts subordinate to it as it has and exercise in respect of contempts of itself. The only limitation to the power is, as provided by subsection (2), that it shall not take cognizance of a contempt committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Penal Code. As explained in Sukhdev Singh Sodhi v. The Chief .Justice and Judges of the Pepsu High Court, 1954 SCR 454 at p. 463 = (AIR 1954 SC 186) section 3 of the Act is similar to section 2 of the 1926 Act, and 'far from conferring a new jurisdiction, assumes, as did the Old Act, the existence of a right to punish for contempt in every High Court and further assumes the existence of a special practice and procedure, for it says that every High Court shall exercise the same jurisdiction, powers and authority ' in accordance with the same procedure and practice ....In any case, so far as contempt of the High Court itself is concerned, as distinguished from that of a Court subordinate to it, the Constitution vests these rights in every High Court, and so no Act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority. No doubt, section 5 of the Act states that a High Court shall have jurisdiction to inquire into and try a contempt of itself or of a Court subordinate to it whether the alleged contempt is committed within or outside the local limits of its jurisdiction and whether the contemner is within or outside such limits. The effect of section 5 is only to when the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction. It is true that under section 4 of the Act the maximum sentence and fine which can be imposed is respectively simple imprisonment for six months and a fine of Rs.2,000, or both but that again is a restriction in an existing jurisdiction and not conferment of a new jurisdiction. That being the position, section 25 in the General Clauses Act, 1897 cannot apply. The result is that section 70 of the Penal Code is no impediment by way of limitation in the way of the recovery of the fine.
6. It is true that the deposit was made for a particular purpose, that is, to secure the presence of the appellant at the time of the hearing of the said contempt proceedings. But the High Court, as a Court of record; being clothed with a special jurisdiction, has also all incidental and necessary powers to effectuate that jurisdiction. Consequently, it had the power to order satisfaction of fine imposed by it from out of an available fund deposited by or on behalf of or for the benefit of the appellant. "
22. A study of the above case-law will reveal that the power of the superior Courts to punish for their contempt stems from the Constitution not from the law, and any law abridging, curtailing, mutilating or in any other way creating any embargo upon or hindrance in its way shall have to - yield before the Constitution.
23. The corresponding provisions in the Indian Constitution find place in sections 129 and 215 which respectively relate to Supreme Court of India and the Provinc)al High Courts. The provisions are very brief as against the self-- speaking and exhaustive provisions enshrined in the Constitution of Azad Jammu and Kashmir and the Constitution of Pakistan. The relevant Articles from the Indian Constitution may be reproduced as: "129. Supreme Court to be a Court of record.--The Supreme Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself.
215.High Courts to be Courts of record.--Every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself."
24. The Entry 77 in Schedule VII, List I; dealing with the Union Legislative List of the Indian Constitution empowers the Parliament of India to frame the law relating to the superior Courts and their contempt in the following words: "77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court),- and the fees taken therein; persons entitled to practise before the Supreme Court."
Similarly Entry 14 of the Concurrent List III empowers both the Provincial and the Union Legislature to make the law relating to contempt except the contempt of Supreme Court. The entry reads as: "
14. Contempt of Court, but not including contempt of the Supreme Court. "
25. The renowned jurists of India commenting upon the powers of the Legislature regulating the law of contempt have expressed almost the similar opinion as discussed above. Durga Das Basu in his Shorter Constitution of India, Ninth Edition at page 275 has opined as follows: Power cannot be abridized by legislation.--The powers conferred upon the Supreme Court and High Court by Articles 129 and 215, respectively, cannot be abridged by legislation, nor are they controlled by anything in the C.P.C.
Similarly in the 6th Edition of his commentary on the Constitution of India, Durgas Das Basu in the Vol. H of his treatise has opined as follows: Article 215, how far subject to legislation.--As has been stated earlier the contempt jurisd-ction of the Supreme Court and the High Courts can be regulated by legislation by the appropriate Legislature, under Entries 77 of List I and 14 of List III, and that in exercise of this power, Parliament has already enacted the Contempt of Courts Act, 1971. On the other hand, the contempt jurisdiction of the Supreme Court and the High Courts has been given a Constitutional foundation, by declaring them to be 'Courts of record', under Articles 129 and 215. Hence, the question arises, how far this Constitutional and inherent jurisdiction of the Supreme Court and a High Court would be subject to the provisions.Of the Act of 1971.
Since the inherent power of the Supreme Court and the High Court, founded on history, has been embodied in the Constitution, as following from their being 'Courts of record' it is clear that this power has an independent Constitutional footing, which cannot be taken away by any legislation, short of Constitutional amendment.
A. On the one hand, it is to be noted that section 22 of the Act specifically lays down: 'The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of Courts.'
It follows that the Constitutional jurisdiction of the High Court under Article 215 cannot be curtailed by anything in the Act, but there is nothing to bar the Legislature from expanding that Jurisdiction by legislation B. On the other hand, there are specific provisions in the Contempt of Courts Act, 1971, which affect the powers of the Supreme Court and the High Court, e.g. As 10, 11, 14, 15, 18,
23. In section 23, it is explicitly laid down that the 'Rules made by the Supreme Court or the High Court, relating to the procedure for punishing for contempt of Court, must not be inconsistent with the provisions of this Act.
It follows from the foregoing discussion that though the substantive and inherent power of these Superior Courts to punish for contempt has not been affected by, this Act, in matters of procedure and limitation, the latter shall prevail.
Under the 2nd proviso to section 4 of the Contempt of Courts Act, 1952 (to which corresponds section 15(2) of the Act of 1971), it was held that even the High Court, proceeding in contempt for violation of a writ or order under Article 226, was bound by the statutory maximum of punishment.
But, as has been held in the later case of Mulgaokar, the Constitutional power under Articles 129 and 215 cannot be fettered by ordinary legislation. If that be so, the power under Articles 129 and 215 cannot be bound by the provision in section 1-(2), because the inherent power of a 'Court of record', which has bees embodied in these provisions of the Constitution, was to subject to any limit as to punishment that the Court was competent to award.
The position deserves further consideration. If it is intended to tie down the Supreme Court and the High Court to all provisions of the Act of 1971, an amendment of the Constitution would be necessary. "
H.M. Seervai in his Third Edition, Volume II of his treatise on the Constitution of India at page 2187 has opined as: "The legislative power of Parliament thus extends to providing for the contempt of the Supreme Court, but as the power to punish for contempt is conferred by Article 129, no ordinary law enacted under Entry 77 can take away that power. We have seen that contempt of Court is not defined in the General Clauses Act or in the Constitution. It is submitted that the words 'contempt of Court' are words of art, and their meaning is well-settled by judicial decisions in England and India. Again the other jurisdiction and powers conferred on the Supreme Court by the Constitution cannot be taken away or affected by a law enacted under Entry 77, List 1. "
26. In the Eighth Edition of his treatise on the Constitution, V. N. Shukla commenting upon section 215 of the Constitution of India writes as: "Every High Court is declared to be a Court of record. There are two characteristics of a Court of record: (i) the records of such a Court are admitted to be of evidentiary value and they cannot be questioned when produced in a Court, and (ii) it has the power to punish for contempt of itself. The power to punish for contempt of Court is a special power derived from Article 215 and not from any Contempt of Courts Act. No Act of Legislature could take away that power and confer it afresh on the High Court by virtue of its own authority. The High Court's jurisdiction to try and punish for contempt of Court includes all necessary and incidental powers to effectuate that jurisdiction. "
27. In the commentary on the Constitution of Islamic Republic of Pakistan, 1973, Vol. II, Emmanuel Zaffar, on the basis of case-law of India and Pakistan writes at page 1368 as: "The power of every superior Court of record to punish for contempt of its authority or process is inherent in the very nature of its organisation and essential to its existence and protection and to the due administration of justice. On the principle just stated, the High Courts in India before Independence had claimed and exercised the power to punish for contempt. The three Presidency High Courts claimed such power further on the ground that they possessed the powers of superior Courts of record in England, which had, as a part of the common law, the power summarily to punish for their contempt. When the Contempt of Courts Act was passed in 1926 such powers were assumed by the Legislature as vesting in the High Courts of judicature established by Letters Patent. The jurisdiction of the Courts of record or superior Courts to punish for contempt by the summary process of attachment or committal is a special jurisdiction, which is inherent in all such Courts as an essential concomitant of their power to preserve order in judicial proceedings and to maintain the authority of law. If the act complained of amounts to contempt under the Penal Code and as such is punishable under that Code, the superior Court's jurisdiction to proceed under the Article is ousted.
Irrespective of where the contempt was committed and where the contemner resides, the High Court of which contempt has been committed, has the jurisdiction to take cognizance of the offence, and such cognizance may be taken suo mutu or by way of judicial notice or on the application of a private party."
28. Justice Muhammad Munir, Former Chief Justice of Pakistan in his commentary on the Constitution of Pakistan at page 1199 writes: "The power of every superior Court of record to punish for contempt of its authority or process is inherent in the very nature of its organization and essential to its existence and protection and to the due administration of justice. On the principle just stated, the High Courts in India before Independence had claimed and exercised the powers to punish for contempt. The three Presidency High Courts claimed such power further on the ground that they possessed the powers of superior Courts of record in England, which had, as a part of the common law, the power summarily to punish for their contempt. When the Contempt of Courts Act was passed in 1926, such powers were assumed by the Legislature as vesting in the High Courts of judicature established by Letters Patent. The jurisdiction of the Courts of record or superior Courts to punish for contempt by the summary process of attachment or committal is a special jurisdiction, which is inherent in all such Courts as an essential concomitant of their power to preserve order in judicial proceedings and to maintain the authority of law. If the act complained of amounts to contempt under the Penal Code and as such is punishable under that Code, the superior Court's jurisdiction to proceed under the Article is ousted.
Irrespective of where the contempt was committed and where the contemner resides, the High Court of which contempt has been committed, has the jurisdiction to take cognizance of the offence, and such cognizance may be taken suo Motu or by way of judicial notice or on the application of a private party."
Again at page 1219, the learned author writes as: "Under clause (2) of the present Article Supreme Court and High Courts have been conferred to punish any person who commits contempt of Court. This power may be regulated by law and subject to such law by rules made by the Court. Since the power to punish has been conferred by the Constitution itself, this power- cannot be whittled down or modified by a statutory law. Under this Article it is open to Parliament to prescribe a higher or lesser punishment because the exercise of the power conferred by this Article may be regulated by law."
29. The above discussion brings us to judge the constitutionality of the Contempt of Court Act, 1993.
This Act is enacted as Act No.XXVII of 1993 by the Azad Jammu and Kashmir Assembly. Prior to this Act, the Contempt of Courts Act, 1926 was in force in Azad Kashmir and the Courts had also the power of contempt under section 17 of the Courts and Laws Code Act, 1949, which is revealed by section 12 of the Act, 1993.
30. Act 1993 (Contempt Act) is almost the verbatim copy of the Contempt of Court Act No.LXIV of 1976 as applicable in Pakistan, except to the extent of a few lines added at the tail of subsection (1) of section 7, which may again be reproduced here as underlined: "Procedure for Supreme Court and High Court.--(1) Whenever it appears to the Supreme Court or the High Court that there is sufficient ground for believing that a person has committed contempt of Court and that it is necessary in the interest of effective administration of justice to proceed against him, it shall make an order in writing to that effect setting forth the substance of the charge against the accused, and, unless the Chief Justice is already on the Bench the Judge or Judges take cognizance of the matter, shall forward the case to the Chief Justice for constitution of Bench.
The Bench shall comprise of not less than two Judges, unless the Chief Justice for the reason to be recorded otherwise directs
31. The learned Advocate appearing on the notice of the Court strenuously questioned the constitutionality of all the clauses of proviso attached to section 3; section 6 and the above-quoted lines of section 7(1), besides section 8 of the Contempt Act.
The relevant are reproduced here: "3. Contempt of Court Provided that the following shall not amount to commission of contempt of Court --- (i)fair comments about the general working of Court made in good faith in the public interest and in temperate language; (ii)fair comments on the merits of a decision of Court made, after the pendency of the proceedings in a case, in good faith and in temperae language without impugning the integrity or impartiality 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 pendently 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 or an evidence given in pursuance for initiation of action or in the course of disciplinary proceedings against a Judge, before the Chief Justice of High Court, the Chief Justice of Azad Jammu and Kashmir, the Supreme Judicial Council, the President, the Prime Minister, Azad Government of the State of Jammu and Kashmir or the Azad Jammu and Kashmir Council;
(vii) a plea of truth taken up as a defence in terms of clause (vi) in proceedings for contempt of Court arising from earlier averment unless it is mendaciously false;
(viii) relevant observations made in a judicial capacity, such as, those by a higher Court on an appeal or revision or application for transfer of a case, or by a Court in judicial proceedings against a Judge;
(ix) remarks made in an administrative capacity by any authority or officer in the course of official business, including those in connection with a disciplinary inquiry or in an inspection note or a character roll or confidential report;, and
(x) a true statement made in good faith respecting the conduct of a Judge in a matter not connected with the performance of his judicial functions.
Section 6: Bar to taking cognizance:--(1) No High Court shall take cognizance under this Act of a contempt alleged to have been committed in respect of a Court subordinate to it where the said contempt is an offence punishable under the Penal Code.
(2) No Court shall take cognizance, as of a contempt of Court, of any averment made before the Supreme Judicial Council in respect of which the Supreme Judicial Council has given a finding that the averment fulfilled the requirements of clause (vi) of the proviso to section 3.
(3) No Court shall take cognizance of a contempt of Court arising from an averment made in due course in appellate, revisional or review proceedings, till such proceedings have been finalized and no further appeal, revision or review lies.
(4) No Court shall take cognizance of a contempt of Court arising from an averment made before the Chief Justice of the High Court, the Chief Justice of the Supreme Court of Azad Jammu and Kashmir, the Supreme Judicial Council, the President, the Prime Minister, the Azad Government of the State of Jammu and Kashmir or the Azad Jammu and Kashmir Council, unless the authority before which the averment was made so directs.
Section 7: Procedure for Supreme Court and High Court.--(1) Whenever it appears to the Supreme Court or the High Court that there is sufficient ground for believing that a person has committed contempt of Court and that it is necessary in the interest of effective administration of justice to proceed against him, it shall make an order in writing to that effect setting forth the substance of the charge against the accused, and unless the Chief Justice is already on the Bench the Judge or Judges take cognizance of the matte:, shall forward the case to the Chief Justice for constitution of Bench. The Bench shall comprise of not less than two Judges, unless the Chief Justice for the reason to be recorded otherwise directs
32. The exceptions attached to the proviso under section 3 as stated above, which are argued by the learned Advocate as against the Constitution, are prima facie, exceptions to the definition of the Contempt of Court as provided under the Contempt of Court Act, 1993. A perusal of the section reveals that an extended and comprehensive definition of the contempt of the Court is provided under the section, thereby extending the scope of the Courts to exercise of their power of contempt. This, definition is in addition to and not in derogation of the provisions of section 45 of the Constitution. Thus, if the Courts take notice of a contempt under section 3 of he Contempt Act, the exceptions appended with the E provision may be kept in view while deciding the guilt of a contemner, but if the notice of contempt is taken under the provision of section 45 of the Constitution, the exception provided in section 3 of the Contempt Act shall not apply and the Courts shall proceed notwithstanding the exceptions as the law does not control the Constitution, but is subject to the Constitution. Notwithstanding above, the exceptions appended with the proviso of the section are qualified and it is for the Courts to determine as to whether the exception taken to an action under section 3 are bona fide in the circumstances of the case and the conduct of the contemner or not.
33. However, clauses (vi), (ix) and (xl do not qualify the test of the other provisions of the Constitution as well, besides section 45 and travel beyond the scope of section itself. In clause (vi), the provisions with reference to the initiation of action in the case of disciplinary proceedings against a Judge before the Chief Justice of High Court, the Chief Justice of Azad Kashmir, the Prime Minister of Azad Government of the Azad Jammu and Kashmir Council, run counter to section 42-E of the Constitution under which the disciplinary proceedings against a Judge can be initiated or action taken against him by the President of Azad Jimmu and Kashmir or the Chairman of the Azad Jammu and Kashmir Council before the Supreme Judicial Council of Azad Jammu and F Kashmir only. The Chairman of the Azad Jammu and Kashmir Council being the authority on whose advice a Judge is appointed by the President, and the President in his capacity of Appointing Authority, are no doubt, the genuine exceptions to taking an action under section 3 of the Contempt Act, if the action is bona fide and fair not when the action is based on ulterior mala fide motives and for blackmailing a Judge or Judges. Similarly the exception applies to the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court, when they take an action in their capacity of being members of the Supreme Judicial Council where a regular reference is filed against a Judge, but not otherwise in their individual administrative capacity, as a Judge is answerable to the Supreme Judicial Council only when a reference is filed against him by the Chairman of Azad Jammu and Kashmir Council or the President, not to anybody else. Thus, the words 'The Chief Justice of Azad Jammu and Kashmir, The Chief Justice of High Court, the Prime Minister and the Azad Jammu and Kashmir Council being violative to the provisions of section 42-E of the f Constitution are unconstitutional and null and void. Subject to what has been stated above, the clause shall remain valid to the extent of President, the Chairman of Azad Jammu and Kashmir Council and the Supreme Judicial Council only.
34. Similarly clause (ix) in view of above-stated Constitutional position is also violative of the Constitution as no other authority than the Supreme Judicial Council, under the Constitution, is authorized to hold the inquiry in respect to the conduct of a Judge on the reference made by the President or the Chairman of the Azad Jammu and Kashmir Council under section 42-E of the Constitution.
35: As for the clause (x) is concerned, the qualified exception could hold good if the conduct of the Judge could be severed from his judicial functions, but in the guise of true statement this judicial conduct is inevitably to be brought into controversy or disrespect, the exception shall, therefore, yield before the h section, as more often than not, the Judge and his persons are synonymous to each other, e.g. When the faith or belief of a Judge or his loyalty to the State or, his ideology is brought into controversy, howsoever, worded the statement may be that would tell upon the integrate of the Judge and his position would stand scandalized.
36. Subsections (1) to (3) of section 6 are more or less procedural in nature, except that the mode provided by clause (2) shall be deemed to be subject to what has been held with respect to clauses (vi) and (ix) of proviso to section 3 discussed above. However, subsection (4) of section 6 takes away what is provided by section 3 of the Contempt Act itself, not to speak of power and protection guaranteed by section 45 and section 42-E of the Constitution, hence this clause is ultra vires of he Constitution except to the extent of Supreme --Judicial Council, which, if directs not to take an action of contempt in case of J failure of a reference against a Judge, the same shall be binding for the Judge under section 42-E read with section 42-B of the Constitution, not due to the bar contained in the clause.
37. Last few lines stated underlined in reproducing subsection (1) of section 7 in para. 31 above, are not only derogatory to various provisions of the Constitution to be discussed below, but are an attempt to create a friction in the fraternity of Judges of the Court and in a clandestine manner an attempt to take away the power from every Judge of the superior Courts.
38. The words 'Court and the Judge' in subsection (2) of section 45 of the Constitution are used as substitute for one another and are thus synonymous and inseparable from each other. The function of a Judge of the Court is the function of the Court and vice versa. The word 'Judge' is defined in section 2 of the Constitution as: "'Judge' in relation to the Supreme Court of Azad Jammu and Kashmir or the High Court, includes the Chief Justice of the Supreme Court of Azad Jammu and Kashmir or as the case may be, High Court and also includes an Additional Judge of the High Court."
The words of the definition clearly state that the word 'Judge' of the Supreme Court or High Court is a substitute of the word 'Court', while functioning as a Judge of the respective Court. The inclusion of the 'Chief Justice' in the word 'Judge' connotes the authority of every member of the Court to be that of a Judge, and the Chief Justice being first amongst equals, as far as the function of the Judge is concerned, derives his judicial authority from the Judgship of the Court not for being the Chief Justice, which is the administrative function of the Judge of the Court appointed as Chief Justice for being No.1 from amongst the Judges of the Court. Thus, it is basically the function of a Judge of the Court in his judicial capacity which is bestowed with the power of the contempt; taking away that power from the Judge, amounts to withdrawing the power vested in the 'Judge' under clause (b) of subsection (2) of section 45 of the Constitution and as the word 'Chief Justice' includes the Judge, the power in our view is impliedly and in a camouflaged manner taken away from the Chief Justice as well, as he derives his power of Court for Chief Justice-ship from the words 'Judge of the Court'.
38-A. The judicial precedents have not accepted any exception to the word 'Judge' of the Court as not being the 'Court', except when the individual appointment of a Judge is challenged. As stated above, both are treated synonymous and interchangeable to each other as far as the judicial functions are concerned. Reference may be made to Abrar Hussain v. Government of Pakistan (PLD 1976 SC 315). This view, except with a juristic difference of right of holding the post of Judge when challenged, has been accepted in the case of Ghulam Mustafa Mughal v. Azad Government and others (1993 SCR 131). In this case the High Court had, holding the appointment of Additional Judges of the High Court as unconstitutional, refused to issue the writ of quo warranto on the basis of Abrar Shah's case referred above, where the Judge and Court were held interchangeable and the writ was refused on the ground that the word 'person' does not include High Court. The Supreme Court of Azad Jafnmu and Kashmir making reference to a subsequent judgment of the Supreme Court of Pakistan reported as Mr. Zulfiqar Ali Bhutto v. The State (1977 SCMR 514) held as follows:-- "Thus, judgment was not brought to the notice of the learned Judges in the High Court otherwise the learned Judges in all probability would have followed it. I say so with great respect that this judgment lays down the correct law. It contains a view which is totally different from expressed by Yaqub Ali Ch. In Abrar Hussain's case that instead ofhaving recourse to writ of quo warranto the proper course in such a situation is to challenge the judgment delivered by a Judge on the ground that it was not a judgment of a High Court or on the ground that the High Court is not properly constituted because a judgeship is vacant. In my considered opinion the view expressed by Muhammad Gul, J. And Salah-ud-Din, J. Was the correct view. If an order or judgment of a Judge of High Court is challenged there cad be no two views that what is being sought is a writ against the High court because the order or judgment has been pronounced in exercise of the jurisdiction vested in the High Court and it is a situation in Vhich Judge and the Court are inseparable.
However, if appointment of a Judge of the High Court is challenged by way of a writ of quo warranto what is in fact under challenge is the appointment of the Judge which is made not by the High Court 'or the Supreme Court but by the President. Therefore, what has to be examined by the High Court is in fact the action of an authority outside the Cours and no order of Court is under challenge."
39. The Constitution of Pakistan 1973 in Article 200 specifically incorporates that 'High Court includes a bench of a. Court; thus a 4udge sitting alone or with all other Judges or Chief Justice, means the high Court. Therefore, no line of distinction or discrimination can be drawn for his the Judge, Judges or Chief Justice is concerned, while construing the provisions of section 45 of the Constitution and section 7 of the Contempt Act, when they are performing the judicial functions of the Court.
40. As said somewhere above, that the Contempt Act is almost a verbatim copy of the Contempt Act, 1976 of Pakistan. The above-refet.Red lines of section 7(1) do not find place in the Contempt Act of 1976 in force in Pakistan. A deliberate attempt is made to ridicule a Judge of the Court when, confronted with a contemptuous position at a place or at a time when the Chiefjustice is not available due to his absence on leave or illness or when he is at headquarter and a Judge is confronted with situation at a Circuit Belqch and vice versa.
41. The above-referred lines of the subsection (1) of section 7 of the Contempt Act are therefore, not only against the express, provision of the Constitution, but conflict with the object and purpose of Contempt Act, besides being unreasonable and illogical.
42. The learned Advocates attacked upon the provisions of section 8 of the Contempt Act as well, for the reasons that the transfer of a case frog a Judge of the Court is alien to the notion of administration of justice in the superior Courts. It was also canvassed that in the Contempt law, the general rule of not being a Judge in one's own cause, is not applicable, thus the provision is against the Constitution and conventions.
43. We have given a deep thought to the proposition agitated at bar and have discussed all the pros and cons of the section. There, is no doubt that under the Constitutional provisions empowering the Contempt, there can be no bar in trying a case as visualized by section 8, but have come to the conclusion that let the Judges put a voluntarily restraint on themselves in hearing such-like cases if such a situation ever arises, except in the exceptional cases. It is desirable for removing the impression of being personal against a contemner, nor in view of the provisions of section 8 of Contempt Act, which it may again be reiterated that its provisions apply in case of contempt proceedings initiated under the Contempt Act, not when these are initiated under section 45 of the Constitution by the Courts.
44. The power of Contempt of Court is not for taking the revenge or I vindicating the position of a Judge, but to ensure the dignity, authority, austerity and supremacy of the Institution entrusted with the task of administering the justice. An Institution established under the authority of law in a civilized society, for resolution of disputes between the contesting parties, be they, the common citizens, executive authorities, legislature etc., are called the Courts of law. They may be of different grades and cadres and their functions may be vary, but the task assigned to them is the sacred task of administering the justice and ensuring the supremacy of law which is meant for the security and well being of the State and for its subjects. All those connected with this task, right from a Peon to an Advocate, are the officers of the Court and the witnesses who enable the Court to arrive at a correct conclusion, are all entitled to the protection as visualized by section 45 of the Constitution and the Contempt Act, if any omission or commission attributed through them attracts the provisions of section 45 of the Constitution so as to ensure the authority of law.
45. The objection of law of Contempt as held in the famous case of "The State v. Sir Edward Snelson K.B.E., Secretary to Government of Pakistan, Ministry of Law (PLD 1961 (W.P.) Lahore 78) is "Firstly to maintain absolute, undisturbed and implicit faith of the people in the integrity, efficacy, dignity, impartiality and uprightness of the Judges, so that the decree, order and judgment passed by them are looked upon with respect and are obeyed and. Complied with. And secondly to afford protection to Judges and Presiding Officers of the Courts from being threatened, intimidated and abused while administering justice so that they may perform their, judicial functions of adjudicating causes between parties according to law and dictates of the l conscience freely without fear or favour".
46. It may, however, be conceded that the faith of the people in the Court and Judges, depends much upon the character, conduct, knowledge, behaviour, outlook, nobility and understanding of the Judge or the Presiding Officer of the Court, than on the lawful awfully powers of Contempt of Court. The people may remain docile to the unbecoming conduct of a Judge or to his order due to his power of contempt, but the essential element of faith in and respect for the Court vanishes, which alone is the property of Courts and Judges.
47. Chief Justice (Retd.) Munir in his commentary upon the Constitution of Pakistan, 1973, edited by Mian Bashir Ahmed, published in 1996, writes at pages 1195 to 1196 of his Second Volume as: Law of Contempt to be sparinjzly invoked-- Relevant considerations.---There could hardly be two opinions the necessity and urgency of the law of contempt of Court. The jurisdiction of superior Courts in this behalf should be jealously guarded in order to keep and maintain the dignity of the Courts. But it is as well that this jurisdiction should sparingly be exercised. The respect and dignity in the minds and hearts of the people should rest on far more sure ground of trust, belief and confidence rather than on fear of punishment: Nobler the conduct of Judge in such matters more he would be respected and higher he would rise in the public esteem. It would be more conducive and helpful in maintaining the dignity of the Court if the Courts are less sensitive and. More forgiving, unless the conduct of alleged contemner is such that it could not be interpreted or explained away on any other hypothesis except that he deliberately attempted to bring the authority and administration of law into disrespect and consciously offended against the dignity of the Court. The benefit of doubt should ungrudgingly be given to alleged contemner. As in other criminal matters mens rea should also be a decisive factor. If the conduct of a person who has apparently defied the order of the Court leaves room for doubt with regard to his intention and it is possible to conclude that he had either acted under some misapprehension of fact or on mistaken but honest notion of his rights, he should be generously and unhesitatingly given benefit of doubt.
This course of judicial rectitude and noble and serene conduct of the Judge is expected to go far in maintaining and upholding the dignity of the Court."
48. I may, however add that, in spite of all restraints and forgiveness, if the going with the contemner still gets tough, then the tough must get going, as the Constitution .And the law mean it.
If the vital institution of judiciary cannot protect its own constitutionally guaranteed freedom and power then how can it protect the right of the citizens against the excesses often committed by the executive. The representatives elected for legislation, at least in the sub--continent, have converted themselves into the executive and pushed the Parliament and Judiciary to the dormancy by the law made in the executive style who defend themselves and offend others at all forums i.e. In the legislature and through the media; electronic being number one in its exclusive control; while the Judiciary composed of Judges are inhibited by their code of conduct and conventions from making the public statements pertaining to their work and performance and answering the wild allegations often attributed at public platforms by cross-sections of the political society against the Judiciary. The only way to express themselves is through their judgments and orders and this power has to be strenuously guarded and protected in the interest of the State, as it is only .a strong judiciary which makes the democratic process robust and strong and blocks and way of introducers and usurpers subjecting the State and the subjects to the reign of terror. The Supreme Court of Azad Jammu and Kashmir in disposing of four common contempt applications against a member of Assembly Sardar Attique Ahmed Khan, held in 1995 SCR 176, at pages 186-87 as: Judges cannot enter into uublic controversies and are unable to defend themselves. The Constituion has evolved a scheme m which Judges and their judgments must be given res ect and they are protected through of contempt. There is no doubt that the Courts have to show benevolence when apology is tendered but we must point out that it is always in the circumstances of each case that the question of accepting an apology has to be decided. It has always to be seen that the apology is being sincerely offered. Although we do not want to lay it as an inflexible rule yet in cases of gross contempt an apology cannot be accepted as a matter of routine because it may tend to encourage repetition of this offence. As long as section 45 of the Interim Constitution Act is on the statute book we cannot allow this."
49. The power of contempt has to remain and is to be protected in the similar way as the Assembly protects its privilege and Government its lawful authority. All these powers are essential and concomitant for the institutional existence. All the three organs of the State are equally important and indispensable for the existence of the State and must be equally powerful to exercise check and balance on one another to prevent one from committing an excess against the other.
50. The superior Courts are the Courts of record and by virtue of being the Courts of record, are under Constitutional obligation to go into the constitutionality of law or any provision thereof, if it comes into conflict with the substantive provisions of Constitution whether conflicting with the fundamental rights or coming into the way of any other provisions of the Constitution. It becomes duty of the superior judiciary to strike down the law when it conflicts with the Constitution, notwithstanding the fact as to whether that law is challenged by way of a regular petition or crops up in any proceedings conceded with the subject. Being the Courts of record, the superior Courts are at liberty, rather under obligation of the Constitution to determine the extent of their jurisdiction vested under the Constitution and law; and construe strictly the provisions ousting the jurisdiction.
When it is done, it is not a case of Court interfering with the power of any other institution it is rather a case of the Courts carrying out their Constitutional obligation and interference into executive or legislative power is just incidental. As against the power/jurisdiction vested in the Supreme Court and High Court under the relevant clauses of sections 42 and 44 of the Constitution respectively; which is subject to other provisions of the Constitution, the power of the Courts under section 45 of the Constitution is the unqualified Constitutional power vested in the Constitutional authority, and power to such authority comes from Constitution itself. No law-making body created by the constitution can, therefore, limit the powers, which are above the law. The superior Courts are the Courts of justice, while exercising the powers vested by the Constitution (as against the appellate powers vested by any subordinate legislation where .These Courts may be termed as Courts of law). The Courts of justice have to care more for justice and upholding the Constitutional mandate, than for law or any rule. When a law or rule becomes an impediment in dispensation of justice, the Supreme Court and High Court exercising the power under section 42, 44 or 45 of the Constitution, as the case may be, will ignore the law made by law making agency or strike it down, it need be.
51. The learned Judge framing the proposition, becoming cognizant of the ultra vires of the provisions of Contempt Act, while taking notice of the failure of the contemner to submit the report, which in -his view, constituted sufficient grounds for believing that the concerned officers have committed contempt of the Court, rightly noticed the ultra vires of the provisions of the Contempt Act. The determination of the constitutionality of the Act, therefore, became essential and relevant in the matter along with the determination of the culpability of the contemner.
52. The superior Courts in Azad Jammu and Kashmir have never shrunk their responsibility and power in declaring the laws as unconstitutional, which glaringly were found running against the Constitution, when the question arose before them in the connected matters pending before them; and the law is now almost settled, that unconstitutional law must be struck off by the superior Courts whenever and wherever noticed. The Supreme Court of Azad Jammu and Kashmir in the case of Chief Secretary/Referring Authority, Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan (PLD 1988 SC (AJ&K) 95) has held as follows: "Let us now see as to which is the authority responsible for the proper implementation and showing regard to the concept of such a law. It may be stated here that in every civilized society, constitutional guarantee of the due process of law and at the same time existence of judicial machinery to enforce the guarantees are regarded as the most cherished and effective safeguard for the enforcement of the rule of law; especially the law which covers the fundamental rights of the citizens. The superior judiciary is always and very rightly expected to be vigilant to see that the fundamental rights and in fact every right enshrined in the Constitution are not violated' and the Legislature functions within its defined legal bounds. When a question arises whether the prescribed limits have been exceeded, the Court must, as of necessity, determine the question and the only way in which it can properly do so is by looking to the terms of the Constitution by which affirmatively the legislative powers are restricted. If the impugned Act of the Legislature is within the Competence of the Assembly and it violates no express condition or restriction imposed by the Constitution, it will not be for the Court to inquire any Constitutional restriction or limits, it is invalid and the Court, being the custodian and protector of the Constitution, is under an obligation to strike it down. This is especially true, as said elsewhere, as regards the Fundamental Rights to which the superior Courts have been assigned. The role of a sentinel. We are supported in our view in "Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139). It has been observed in that case at page 41: There are no sovereign rights in the Legislature to impose their will, as to be superior to these rights.
The essence of a written Constitution is that it defines and regulates the powers of different organs of the State by imposing limitations on the exercise of the authority by their and if there be a conflict between the Constitution and a sub-Constitutional law or the ordinary law, the latter must yield to the former which must govern the decision in a particular case. "
53. After discussing several authorities of the sub-continent, it is held in paras. 23 and 24 of the above-referred case by the Supreme Court of Azad Jammu and Kashmir as: "23. The sum total of our above discussion is that it is the duty of the superior Courts to see that the Legislature works within its limits and if it fails to keep itself within its own Constitutional limits, the judiciary would step in to enforce compliance with the Constitution. This is no doubt a delicate task which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other State functionaries disregard the limitation imposed upon them or when they claim to exercise power which the Constitution has been careful to withhold from them. "
24. Our Legislature or the Government, which functions as law-making body in absence of the Assembly it admits of no doubt, has powers limited by the Constitution Act, 1974, which created it and it can do nothing beyond the limits which circumscribe these powers. If the Government or any law-making body, therefore, travels beyond its sphere and takes steps to legislate on a matter not within its power or legislates in contravention of the Constitution, such a legislation is void ab initio and is necessarily to be recalled."
54. In Giasul Haq v. Azad Government and others' (PLD 1980 SC (AJ&K) 5), it was held that a Tribunal or Court competent to decide a matter is competent to decide all matters incidental or ancillary thereto, if its jurisdiction is not otherwise barred. In ' Azad Government of Jammu acid Kashmir v. Muhammad Aslam (PLD 1981 SC (AJ&K) 71), it is held that superior Courts can go into the vires of a stature and strike down the law if against Constitution. Similar was held in the case reported as 'The State v. Manzar Masood (1981 PCr.LJ 661). In 'Jammu and Kashmir Tehrik Amal Party v. Azad Government of the State of Jammu and Kashmir (PLD 1985 Azad J&K 95), it is held that it is only domain of the superior judiciary to judicially review the score of ultra vires of subordinate legislation. There is no dearth of other authorities on this proposition from Azad Jammu and Kashmir jurisdiction and from Pakistan as well. From Pakistan jurisdiction PLD 1964 SC 673 and PLD 1973 SC 49 are the leading authorities on. The subject and PLD 1992 Federal Shariat Court 445 is Sharia view of the law, holding that jurisdiction conferred by the specific provision of the Constitution cannot be interfered with by means of any ordinary law.
55. The Supreme Court of Azad Jammu and Kashmir has in the following cases struck off the law as unconstitutional under its Constitutional powers, which in its wisdom was found against the Constitution, though the law was not challenged in a regular proceedings, but was noticed by the Court during the connected proceedings. 'Nasar Ahmed v. The State' and 'Muhammad Khurshid v.
The State' (1982 PCr.LJ 1287) 'Referring Authority/Chief Secretary, Azad Government of Jammu and Kashmir v. Sardar Muhammad Abdul Qayyum Khan' (PLD 1983 SC (AJ&K) 95); Referring Authority/Chief Secretary of Azad Government v. Sardar Sikandar Hayat Khan (PLD 1982 SC (AJ&K)
112).
56. In view of above, the following provisions of the Contempt of Courts Act, 1993 i.e.;-- -the provisions of clauses (vi), (ix) anti (x) of section 3; -subsections (2) to the extent discussed in para. 36 and subsection (4) of section 6 as a -whole; and -all the words and lines of subsection (1) of section 7 underlined in para. 31 above after the sentence "setting forth the substance of the charge against the accused, and." being against the provisions of the Constitution, are declared as without lawful authority and void ab inito. The other provisions of the Contempt Act discussed above, shall be construed in the light of the above dictum, except section 4 providing the sentence, which shall be adhered in letter and spirit.
57. As for the second proposition is concerned which in fact gave rise to the constitutionality of Contempt Act, in view of section 7(1), the contemner has, first through an affidavit, then by way of an application, and his counsel has at bar, tendered unconditional apology and placed himself at the mercy of the Court. He has also filed the report in the case in which he was ordered to do.
58. The apology, no doubt, does not entitle a contemner to acquittal, but it is a mitigating factor to be considered by the Court while determining the conduct of the contemner and his culpability in view of his total submission to the mercy of the Court and his written and spoken repentance coupled with his compliance with the order of the Court, the apology is accepted and proceedings of contempt are dropped.
59. Before parting with it, it may be placed on record that under general notion of law, the Legislature is presumed to be wiser than the Courts; the notion would hold good for all the times to come, if the authorities relevant i.e. Who ultimately are to be governed or regulate the law, are consulted and the relevant legislation is processed through them, so that the ultimate object of legislation which is the well being of the State and subjects is achieved and presumption of being wise is also carried further. It is required by the Rules of Business of the Government as well. In some cases, in fact it is Constitutionally advisable for the Legislature to consult the authority whose Constitutional power or jursidiction is being regulated under ordinary law, to ensure that under the ordinary law making authority of the Legislature, the Constitutional power of the other equally important organ of the State is not taken away, which ultimately compels the other organ of the State to ignore such a law or strike down the same if it is construed by the superior judiciary as in the instant case. The persons employed in connection with the service of the State are meant and expected to sincerely assist and advise the Government i.e. The President, the Prime Minister and Ministers who are components of Legislature and exercise the executive authority of the Government as well, but are not under Constitution and law required to be literate even, as against the formers, who have to undergo the educational and professional courses and trainings anti attain the wisdom and vision by knowledge, training, experience, different tests and then achieve the professional perfection for properly assisting anti advising the components of Legislature and executive for making the policies. Laws and rules for the generations to come and this alone is the guarantee for success, existence and survival of State to whom all owe their existence and allegiance.