MUJIB-UR-RAHMAN SHAMI Versus THE STATE

1. HAMOODUR RAHMAN, C. J.‑ This appeal has been filed under Article 185 (2)(c) of the Interim Constitution of the Islamic Republic of Pakistan as an appeal as of right against the judgment and order of a Full Bench of the Lahore High Court delivered on the 21st December 1972, finding the appel lants guilty of contempt of the said High Court by writing and publishing an article entitled "Tauheen‑a‑Adalat" in the issue of a weekly journal, called `Azan‑e‑Haq', published on the 13th September 1972.

2. The first appellant is the Editor of the said weekly newspaper and the second appellant is its printer.

3. In this Article, the suitability of one of the learned Judges of the said High Court, who, it was then rumoured, was being appointed its Chief Justice, was questioned on the ground of want of character, piety, honesty and integrity. The offending article also suggested the said learned Judge in office, even as a puisne Judge was inconsistent with the dignity of the High Court" and called upon the learned judge con cerned to resign his office.

4. The learned Judge was appointed the Chief Justice of the said High Court a month after the publication of the offending article.

5. The charges levelled against the learned Judge in the said article, as we shall presently show from the admissions of appellants themselves, were not only baseless but also mischievous and had been made at the instance of some one, who was interested in harming the learned Judge concerned at this critical juncture of his career. The appellants were, therefore, after an elaborate hearing, committed for gross contempt of Court and appellant No. 1 was sentenced to six months' simple imprisonment and a fine of Rs. 2000. The appellant No. 2 was sentenced to four months' simple imprisonment and a fine of Rs. 1,500 only.

6. It appears that neither of the appellants had before the High Court showed any remorse or expressed any regret. In fact they had set up the plea of truth and justification and even objected to the constitution of the Bench because it included the learned Judge maligned.

7. Each of the learned 'Judges constituting the Bench delivered separate judgment but agreed in the conclusion that the appellants were guilty.

8. This appeal, which was filed on the 22nd December 1972, first came u for hearing on the 12th June 1975, when the appellants personally appeared in Court and prayed for an adjournment in order to engage a new Advocate -on‑Record and a new counsel as those who had filed the appeal on the' behalf were not available. The matter was, accordingly, adjourned for a fortnight to enable them to do so.

9. During this period, however, fresh developments have taken place. It now appears that the appellants had, in the meantime approached the learned Chief Justice of the Lahore High Court through a former Chief Justice and a former Judge of this Court for accepting their written apologies and their assurances of deep sense of remorse for the publication of tic offending article. Their written apologies were forwarded to the High Court which has since considered them and, in a full Court meeting, decided to accept the apologies.

10. The apology has also been published, as indicated .in the letters of apology in the weekly 'Adakar', published for the week 22‑27 June 1975, and in the Urdu Digest for the month of July 1975, in identical form. It reads as follows:‑

11. They have also now filed an application under Order XLIX, rule 6 of the Rules of this Court admitting that "as a result of further enquiries and facts thus revealed, it has been established beyond any doubt that the information, on which the said Editorial dated the 13th September 1972, was based, was incorrect and that the insinuations and accusations contained therein constituted a traversity of truth. It further transpired that the persons responsible for supply of that information were actuated by motives of personal malice and wanted to wreak personal vengeance. In the context of this situation, the appellants felt impelled by their conscience to tender unqualified apology to the Lahore High Court and to express their sincere repentance".

12. To this application are also annexed the letters sent by the appellants to the High Court and it may be of interest to quote portions from these letters not only to show the sincerity of the repentance of the appellants but also to highlight the dangers into which unwary journalists are likely to be misled by hasty action. These portions read as follows:‑

13. From letter of appellant No. 1.

14. From letter of appellant No. 2.

15. In the letter of appellant No. 1 it is clearly stated that the writer of the Editorial felt ashamed of himself and was not in a position to adequately express my feelings of shame in words". This letter ends by requesting the learned Chief Justice to accept his "Tauba" which was "the confession of past mistakes and firm resolve to avoid the same in future".

16. The learned Advocate appearing on behalf of the appellant has orally also assured us that he is fully satisfied that his clients are truly repentant of what has happened but has asked us to accept their apology as was done in the case of Fakhare Alam v. State (P L D 1973 S C 525). He has also, in this connection, referred to the provisions of the Contempt of Courts Act, 1926, arid the relevant provisions of the various Constitutions from time to time enforced in this country to support his contention that an apology can, in a suitable case, be accepted even by this Court at the appellate stage, because, the appeal is of right And the appeal being a continuation of the cause or matter the appellate Court has all the powers of the original Court. Hence if that Court could accept apology so can this Court.

17. The case of Fakhre Alam stands on an entirely different footing. Tri that case the Court did find that the apology was unconditional and that it had been tendered at the earliest opportunity available, but it was not accepted by the High Court on account of some technical non‑com pliance with the requirements specified by this Court in some other case. In the present case the contemners themselves admit that they were in contempt and that they had not tendered any apology before the High Court at the hearing of the matter. Hence, we are unable to accept that in the case of a contempt of another Court, this Court can accept the apology tendered at the stage of the appeal. This has been very clearly pointed out in the case of Sir Edward Snelson v. Judges of the High Court of West Pakistan (P L D1961 S C 237), as also in the case of Yousuf All Khan v. The State (P L D 1970 S C 350).

18. A contempt of Court proceeding, as has been pointed out in the case of Saadat Khlaiy v. The State (P L D 1962 S C 457), is a matter sui generic in nature. The anology of an appeal is not, therefore, apt. There is neither precedent nor principle to support it. It is difficult to appreciate how, when one Court has been scandalized, another superior Court can say that it will pardon it. This would be defeating the very object of a proceeding for committal for contempt. .

19. The learned counsel further informs us that after the High Court's judgment, the appellants were arrested on the 21st December 1972, but were released, when this Court on the 22nd December 1972, suspended their sentences. In the circumstances following the procedure indicated in the case of Mohammad Warts v. The State (1975 S C M R 106), we might while maintaining the conviction, allow the appeal to the extent of reducing the sentence to the period already suffered.

20. The learned Assistant Advocate‑General, appearing for the State has now placed before us a copy of a note of the Registrar of the High Court indicating that the apologies had been accepted by the learned Judges of the High Court at an informal meeting as they were satisfied that the apologies had "been inspired by their (appellants') feelings of contrition and the anxiety to make amends for their past conduct". Alongwith the covering letter of the Registrar of the High Court are also annexed copies of the letters of the appellants and the letters of the former Judges of this Court who intervened on their behalf. Let these be also kept with the record.

21. The learned counsel for the State does not agree that we can accept the apology and dismiss the appeal after the admissions now made by the appellants but be is of the view that we can only reduce the sentence as laid down in the case of Warts v. The State.

22. We are in agreement with him and accordingly dismiss this appeal but reduce the sentence to the period already suffered.

23. Before parting with this case, however, we must mention that it is a matter of immense gratification to us to note that in this case too, the honour of the High Court has been, fully vindicated upon the admissions of the appellants themselves, who are both educated and responsible persons having considerable reputation as journalists of some standing in this country. We hope that other journalists will take a lesson from their experience and not rush to print any and every kind of information regarding Judges that perculates to them, no matter from what source, without checking the authenticity of the source and the correctness of the information with care and caution.

24. We are also happy to note that this is one of those unusual case in which the contemners have themselves realised their own error had the courage admit their error and made sincere attempts to make amends by publicly 'declaring that they had been grievously misled into making such baseless accusations against one of the Judges of the Lahore High Court at a critical juncture of his career, which could have caused incalculable harm not only to him but also to the judiciary. If we ha not been satisfied that the appellants were genuinely sincere in the expression of their remorse, we would not, even though the High Court had admitted their apology, 4ave reduced their) sentences. We feel, however. satisfied that the appellants, who were present in Court, are sincere in expressing their remorse. They have, before us also offered to assist the High Court in every way in bringing the real culprit or culprits, as the case may be, to book. We direct therefore, that's a copy of this Court's judgment be also sent to the High Court for such action as it may deem necessary.

25. S. A. H. Sentence reduced to period already undergone.