Syed FEROZ SHAH GILLANI Versus F.O.P.
ORDER
UMAR ATA BANDIAL, C.J.--- The order of the Court dated 13-1-2014 is reproduced below:--
"Learned counsel has referred to a number of press statements made by different persons regarding the commencement of trial of Gen. (R) Pervaiz Musharraf under Article 6 of the Constitution which is pending before learned Special Court. Submits that Article 204(2)(c) of the Constitution treats the following actions to be punishable as contempt of Court: "does anything which tends to prejudice the determination of a matter pending before the Court"
The press statements attached to this petition allegedly bear upon the merits of the case under determination and also include reactions by important stakeholders in society to the commencement of the trial. In answer to the Court's query that best Judge on whether any of the statements being made about the trial would affect the determination thereof is the learned Special Court itself and not another Court, learned counsel for the petitioner submits that the wrong claimed by him to be committed by persons making the statements in issue is a constitutional violation under Article 204(2)(c) thereof. The appropriate Court to test the nature and effect of the alleged wrong in the context of Article 204 is a Constitutional Court.
Whether this Court should assume jurisdiction on the point raised by the learned counsel for the petitioner turns on the jurisdiction conferred on the Special Court by Criminal Law Amendment (Special Courts) Act, 1976 under which the aforementioned trial is presently being conducted.
Learned D.A.G. shall assist the Court on the said question on 16-1-2014."
2. Learned Deputy Attorney General submits that the learned Special Court has jurisdiction under section 6(2) of the Criminal Law Amendment (Special Court) Act, 1976 to punish any person who does anything which tends to prejudice the case of a party before it. Being vested with such remedy the appropriate forum for considering the plea raised by the petitioner is the learned Special Court itself.
3. Learned counsel for the petitioner submits that he is in fact relying on the observations made by the Hon'ble Supreme Court in Ch.Zahur Ilahi, M.N.A v. Mr.Zulfiqar Ali Bhutto and others (PLD 1975 SC 383 at page 397) wherein it is observed as follows:--
"In doing so, we would like to make it clear that we do not wish to give the impression that this Court approves of the making of comments with regard to pending proceedings. It is a well-established rule that when a matter is subjudice, all concerned should exercise restraint and avoid making any reference to such matters one way or the other and, therefore, as we have already observed in our first order in the Reference itself that this well established rule of not making comments regarding pending proceedings will, we hope, also be observed in by all concerned during the pendency of the Reference in this Court."
4. Learned counsel adds that the said observations of the Hon'ble Supreme Court are adopted by the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 in Section 20(n) thereof which provides as under:--
"A person who is issued a licence under this Ordinance shall:
(n) not broadcast any programme or discussion on a matter which is sub judice."
5. He submits that the statute prohibits any discussion on a matter which is sub judice. However, he accepts that not every discussion about a sub judice matter would amount to commission of contempt of Court. Yet needless discussion and speculation about such a matter can include anticipatory speculation that may affect the perception about the proceedings in a Court.
6. The formulation made by the learned counsel for the petitioner has an element of force. However, the said proposition should be examined only after the same has been confronted to the concerned authority, respondent No.2 PEMRA. It may also be mentioned that the petitioner's apprehensions need not constitute a crystalized case for contempt of Court in order for the remedy before the learned Special Court to be invoked. Even the present grievance may be expressed by the petitioner before the said learned Court.
7. However, in so far as this Court is concerned, the petitioner ought to avail his remedy before the concerned regulatory authority, PEMRA and thereafter to challenge any act of commission or omission by PEMRA within the parameters of Article 199 of the Constitution.
8. Petition disposed of.
KMZ/F-9/L Order accordingly.