1 IN THE ISLMABAD HIGH COURT, ISLAMABAD Cri. Org. No.150 / 2022 The STATE through Advocate General Islamabad wv Imran Ahmed Khan Niazi A PROVISIONAL REPLY ON BEHALF OF THE RESPONDENT (ALLEGED CONTEMNOR) TO THE SHOW CAUSE NOTICE. Respectfully Sheweth: Preliminary Submissions: 1. That the above-titled proceedings are pending before this Hon’ble Court wherein a show-Cause notice has been issued to the Respondent, Imran Ahmed Khan Niazi, Chairman Pakistan Tehreek-e-Insaf on 25.8.2022, pursuant to an order of the Full Bench of this Hon’ble Court dated 23.08.2022. The said order of this Hon'ble Court directed the Respondent, termed as alleged contemnor, to tender appearance before this Hon'ble Court on 31.08.2022.2 2. That the facts incorporated in the office note of the worthy Deputy Registrar that found mention in the afore-said order dated 23.08.2022 and the observations made therein, though no reply was sought at this stage, it became necessary to bring on the record, in the interest of justice, certain constitutional, legal and factual aspects of the matter to assist this Hon’ble Court to arrive at just and proper conclusions. Hence this reply. 3. That the present Reply may kindly be treated as only provisional reply inasmuch as the Respondent was unable to have an access to all the judicial record of the lower courts and the orders passed therein to supplement his Reply. The instant replay is therefore based upon the available limited information and judicial and other record available for the time being. The Respondent may therefore seek indulgence of this Hon’ble Court, if the need be, to supplement his Reply. MAITAINIBLITY OF THE PROCEEDINGS: 4, Before proceeding further, it is pertinent to draw the kind attention of this Hon’ble Court to some critical legal, substantive and procedural aspects of the matter to ensure due process of law: a. That it appears that the present contempt proceeding were initiated in connection with the speech made by the3 Respondent at a public rally wherein a reference was made to the conduct of an Additional Sessions judge, Islamabad whom he misunderstood as Magistrate, along with some police officials whose conduct was also in question in the backdrop of events of the past few weeks. . It is apparent from record that the present proceedings were initiated on the basis of an office note dated 22,8,2022 of a Deputy Registrar Judicial. Paragraphs of the said report are reproduced as under: (4) That the afore-mentioned act, prima facie, amounts to committing criminal as well as judicial contempt punishable under section 5 of the Contempt Court Act, 2003 read with Article 204 of the Constitution It is submitted with utmost respect that the worthy Deputy Registrar completely misconceived the law and his own powers. Deputy Registrar had no such powers or authority under the Islamabad High Court Act, 2010 ( the Act of 2010) or the Ordinance of 2003 or the Rules applicable to the Court under section 8 of the said Act of 2010 to make such a sweeping statement. On the contrary it has been held by the Hon*ble Supreme Court that: “A question whether there is a contempt or not is a serious one. The Court is both accuser as well as the judge of the accusation. It behoves the Court to act with great circumspection as possible making allowances for error of judgement and difficulties arising from inveterate practices in courts and tribunals. It is only when there is a clear case of4 contumacious conduct not explainable, arises, that the contemnor must be punished”. Debabtra Bandopadhaway v.The State of Bengal AIR 1969 SC 189 It is further stated that the word reproduced in the said note of the worthy Deputy Registrar, by no such stretch of imagination, as further explained below, could amount to a criminal and judicial contempt as noted by the worthy Deputy Registrar. It therefore submitted that the present proceedings are misconceived in fact and law. . The said note was then put up before the Hon’ble Acting Chief Justice. His lordship was passed to pass an order in the following terms: “This note has been put up before me by office, upon which the matter was discussed in the tea room, and all my colleagues unanimously agreed with proceeding forward in the matter. Let the matter be placed before larger bench of this Court by office”. It is submitted that in the first instance, this Hon’ble Court assumed the jurisdiction in this matter, pursuant to section 4(2) of the Contempt of Court Ordinance, 2003 (hereafter called the Ordinance) which is reproduced hereunder: “Subject to sub-section (3), every High Court shall have the power to punish a contempt committed in relation to any Court subordinate to it”,5 It is pertinent to mention here that the said provision was also present in the earlier contempt laws, the Contempt of Court Act, 1926 [section 2 (3)], the Contempt of Court Act, 1976 [section 5 (3)] and also in the Indian Contempt of Court Act, 1981 (section 10). It is submitted that the said provision however does not provide for the manner and procedure for exercise of the said jurisdiction. It is submitted that when the Deputy Registrar put up the note before Hon'ble Acting Chief Justice he did not draw the attention of the his lordship to the practice and procedure in such matters. It is submitted that this Hon’ble Court, vide notification dated 28.08.2019 has adopted the Rules and Orders of the Lahore High Court Lahore which provide for the procedure in such matters. It is submitted that Rule 4, Chapter 8, Part B provides for the procedure in such matters. It is also submitted that since it was not an alleged contempt of the High Court, therefore, the matter could not be initiated either on its own or upon a note by the worthy Deputy Registrar. Moreover, in order to protect the rights of parties and to assure due process of law, the law provides a proper course and due process in such matters. Under the said Rule, the power to punish for contempt of the subordinate courts, vested in the High Court but can only be exercised upon a reference from the subordinate Court. The said Rule is reproduced as under:4. When High Court may punish for the contempt of subordinate Court.-- Besides the power to punish its own contempt under Article 204 of the Constitution and under the Contempt of Courts Act, 1976, the High Court has and may exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice, in respect of complaints of contempt of the Courts subordinate to it as it has in respect of a contempt of itself, but it cannot take cognizance of a contempt in respect of a Court subordinate to it when such contempt is an offence punishable under the Pakistan Penal Code (see section 3 of the Contempt of Courts Act, 1976). The subordinate courts must, therefore, ensure before referring a contempt matter to the High Court that the alleged contempt is not an offence punishable under the Pakistan Penal Code. It is submitted that said Rule, though not strictly binding upon this Hon’ble Court, provides for due process of law and it has judicial wisdom behind it meant to protect Rule of Law and due process. Moreover, as it is becoming more frequent, Courts have started taking cognizance on the basis of the newspaper clippings which may seriously prejudice the rule of law, due process and fair trial. It is for this reason that the Hon'ble Lahore High Court while framing the Rules ensured that the cognizance of such critical matter was taken upon a reference by the subordinate court ensuring that the matter was not cognizable under the Penal Code or any other law.7 d. That the procedure for cognizance, a step towards assumption of jurisdiction, is a matter of utmost importance for the rule of law and due process and particularly in contempt and criminal matters. It is well settled that if a law requires a thing to be done in a particular manner it should only done in that manner or not done at all. It is equally important to point out that the worthy Deputy Registrar, Islamabad High Court has No powers to initiate such a note on news-paper clipping. It is therefore submitted with great respect that the present proceedings have been initiated without jurisdiction and the same are liable to be withdrawn. Thus the show cause notice may kindly be withdrawn in the interest of justice. e. That the afore-mentioned submission is further supported by the provisions of section 7 of the Ordinance of 2003 wherein the legislature has laid down the procedure for the cognizance of criminal contempt of ‘superior Court” which inter alia provides for a suo motu action. Section 2 (g) of the Ordinance defines ‘Superior Court’ which means the Supreme Court and the High Courts and so is the case under Article 204 which is applicable to the Supreme Court and the High Courts. It is therefore clear that no suo motu action can be taken by the High Court under section 4(2) of the Ordinance as the maxim provides “expressio unius exclusio alterius”) PLD 19878 SC 213. Moreover, keeping in view the provisions of Article 175(2) of the Constitution it is most respectfully submitted that in the absence of an express jurisdiction having been conferred by the law on this Hon’ble Court an exercise of suo motu jurisdiction in relation to the alleged contempt of court of a subordinate court by this Hon’ble Court may have the potential of undermining the rule of law and due process. It is also submitted although the law of contempt is law of its own kind and is treated as specie of criminal law therefore its provisions are to be interpreted strictly. , There is another critical aspect of the matter. According to the order passed on the said note of the worthy Registrar, the Hon’ble Acting Chief Justice observed that “the matter was discussed in the tea room and all my colleagues unanimously agreed with _ proceeding forward”. It is submitted again with respect, and without prejudice to the submissions on the merits of the alleged contempt, that once again there is serious procedural lapse in the instant matter which will have a great bearing upon the matter. It is submitted with utmost respect that all those Hon’ble Judges who agreed to the initiation of the instant proceeding, having pre-judged the matter, might have to9 consider recusal from the matter, in the interest of justice, due process and rule of law. |. That the proceedings were initiated pursuant to a note of the worthy Deputy Registrar of this Hon*ble Court but the title finds reference to “State through Advocate General”. Now under the law the learned Advocate General represents Islamabad Capital Territory and the executive authority of ICT vests in the Federal Government. Since the matter has been initiated on behalf of the Hon’ble Court as suo motu (as stated earlier the worthy Deputy Registrar has no powers under the law) and being a prosecutor in this matter it cannot be initiated by and continued in the name of Advocate General, who is going to be prosecutor in this matter, without the prior approval of the Federal Government. Under Article 7 of the Constitution, the judiciary was excluded from the definition of “state” to maintain its impartiality. Thus, no contempt proceedings could be initiated suo motu except in the manner provided under the Ordinance of 2003 without due regard to the separation and trichotomy of powers under the Constitution.10 h. It is submitted that this Hon’ble Court while passing the order dated 23.8.2022 made the following observations in paragraph 2: “We have been informed that the order of the learned Additional Sessions Judge has further been assailed before this Court. We are of the prima facie view that the respondent's above-mentioned statements have been made by the respondent to obstruct the course of justice and due process and erode public confidence in the Courts of law and therefore, come within the contempt of Court. These remarks have also been made with the motive of undermining the integrity and credibility of the judicial system in the eyes of public at large.” It is submitted with utmost respect that these observations, though only tentative and prima facie, denied the Respondent the right to explain his remarks during the course of a public speech. It submitted that the Respondent had no motive (ill will or mens rea) behind the said speech or remarks nor were those remarks directed specifically towards the judicial officer. On the contrary, the Respondent having seen visuals of physical torture and heard the sexual abuse in custody was highly disturbed over the violation of the fundamental rights of the said Mr. Gill. It was neither intended to obstruct the course of justice as the order for remand had already been passed. It is further submitted that the said remarks were also not intended to interfere with the course of justice as the matter (criminal revision) had already been disposed of 17.8.2022 nor was those remarks meant to undermine the integrity and credibility of the judicial11 system. The said order dated 17.8.2022 had already been challenged in writ petition No. 3184 of 2022. The day when the speech was made the criminal revision petition stood disposed of and the write petition was filed before the Hon’ble Court. It is therefore submitted that the reference to actin meant an action as per law. It is now well settled that a fair comment and criticism with temperate language is desirable for the administration of justice. Justice is not a cloistered virtue. It should be allowed to suffer criticism by the ordinary men as held by Lord Atkin in Andre Paul Terence v. the Attorney General (AIR 1936 PC 141): “no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not acloistered virtue: she must be allowed to suffer the scrutiny and12 respectful even though outspoken comments of ordinary men". The afore-mentioned opinion of the Privy Council was cited with approval by the Hon'ble Supreme Court in Syed Masoor Ahsan v. Ardesher Cowasjee PLD 1998 SC 823 @ 884 -885 and 990. It is therefore submitted that keeping in view the afore-referred submissions this Hon’ble Court may be pleased to discharge the show-cause notice to the Respondent in the interest of justice. THE MAIN CASE: Introductory: 1. That before proceeding further it is pertinent to submit that no contempt of court has been committed by the Respondent and the worthy Deputy Registrar took the words selectively from the speech made by the Respondent at a public rally at F-9 Park Islamabad on 20 August 2022. Furthermore, these words were taken totally out of their context and flown all over the print and electronic media to give an impression as if the Respondent intendedto take law in his own hands. On the contrary, it was the legal right of every citizen to complain about the conduct / misconduct of a judge or any other public functionary in13 accordance with law. The reference to any action by the Respondent only meant an actionto be taken strictly in accordance with law and the Constitution. The gender debate was unfortunately initiated against the Respondent by certain journalists and politicians who were more vocal in their criticism and followed a particular line with a particular intent. The instant proceedings were initiated on the basis of newspaper clippings from the newspapers which were incidentally very vocal in their criticism of the Respondent. It is submitted that the law in relation to the newspaper clippings has been very clearly laid down in the case of Mian Shebaz Sharif v. Federation of Pakistan (PLD 2004 SC 583 @ 598). It is submitted with utmost respect that the note put by the worthy Deputy Registrar was wholly based upon unverified news clippings that prejudiced the rights of the Respondent. On the other hand daily Nawa-e-Waqt of 21 August 2022 and other papers had the headlines as under:nN 14 A copy of the news clippings of daily Jang dated 21.8.2022, daily Nawa-e-Wagt of 21 8.2022 and daily Express of 21 August 2022 are attached. . That the Respondent, it is respectfully submitted, used the words “app sab sharamkarain’ in a totally different sense and context, which was regrettably viewed as contemptuous, by the worthy Registrar and the Hon’ble Court. It is submitted with respect that the said words were uttered spontaneously without any previous motive and malice only to emphasize that the rule of law should be strictly followed in the matter of Shebaz Gill by the authorities. It is pertinent to mention that the Respondent used the word “ aap sab sharam Karin” in flow of his speech by the Respondent, without there being any ill will and was never meant to be used specifically or exclusively for the learned sub-ordinate judge. Without going into semantics the word “sab” being a collective noun including all government functionaries. On the one hand, in so far the learned subordinate judge is concerned, it was only limited to taking action, in accordance with law. It is submitted that since matter arose out of political confrontation that was going on between the Federal Government and the Respondent and his political party, particularly the way Mr. Gill was arrested, tortured and after he was sent on judicial remand by the court of competent jurisdiction, the unusual and extra-ordinary steps to give back physical custody of Mr. Gill to the Federal Government coupled with the disturbing news of his physical abuse and» 15 torture would move every person to be out-spoken. It is indeed surprising, submitted with respect that instead of appreciating and overlooking some words uttered in the heat of the moment for the protection of fundamental rights of an individual, as guaranteed under Article 9 and 14 of the Constitution, the matter has prima facie being termed as contemptuous. It is a matter of public and judicial record that the Respondent has struggled for rule of law and has always held all courts and the judiciary in Pakistan in great esteem. It is equally important to point out that the Respondent has always been in the forefront of the long struggle against injustice. The said rally was also in connection with the reported torture of Mr. Shebaz Gill, Chief of Staff of the Respondent where thousands of people gathered toexpress solidarity with him against the highhandedness of police and law enforcing officials and blatant violation of his fundamental rights. It is a matter of record that while the accused was in custody, the Islamabad Police, the Federal Interior Minister, the Federal Information Minister, continued to leak video clips to a selected group of journalists. It is submitted with respect that the overall circumstances need a proper judicial inquiry into the entire matter for the protection of fundamental rights of the citizens. . That it is heartening to note that the Hon’ble Court has referred to the balancing of freedom of speech vis-a-vis public interest and to guarantee untrammeled course of justice secured by an16 independent and impartial judiciary. It is by now well settled that the contempt powers of the superior courts should be exercised very sparingly. Lord Denning’s most pertinent observations, as quoted with approval by the Hon’ble Supreme Court “in the matter of Contempt Proceedings Against Imran Khan, Chairman, Pakistan Tehreek-i-Insaf’( PLD 2014 SC 367), may be cited once more “Let me say at once that we will never use this jurisdiction (contempt) as a means to uphold our own dignity. That must rest on surer foundation. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than the freedom of speech itself” (R. Metropolitan Police Commissioner Ex parte Blackburn (No.2) (1968) 2 QB 150 . That from the tenor of the order of this Hon’ble Court, it is obvious that the observations made therein were meant to protect the independence of the judiciary and impartiality of the tribunals. It is indeed of a great constitutional value that the freedom of speech of citizens be protected at every cost particularly in a society where this right is under greater threat from different institutions. The Superior Courts have always recognized the importance of this right. In the case of Syed Masoor Ahsan v. Ardesher Cowsjee (PLD 1998 SC 823), after considering all the case law, the Hon’ble Supreme Court made several critical observations including the following:2 ~ 17 “That the power of contempt should be used sparingly and only in serious cases, and that the Court should not be either unduly touchy or over-astute in discovering new varieties of contempt ‘for its usefulness depends on the wisdom and restraint with which it is to be exercised”. A similar view was taken by the Privy Council in Debi Parashad Sharma v. King Emperor (AIR 1943 PC 202). . That it is pertinent to point out that this Hon’ble Court may have initiated these proceeding to genuinely allay its concern about the protection of the sub-ordinate judiciary but it is now a matter of record that even these proceedings are being used for political point scoring and advantage by the Federal Government. Looked at from another angle, the utterances of the Respondent and the observations of this Hon’ble Court in its order dated 23,8.2022 address the same concern, that is, fair and impartial dispensation of justice. It is trite that justice should not only be done but should alsoseen to be done. In the judicial history of criminal justice it has rarely happened that the executive branch of the government so vehemently pursues the matter of remand of an accused. This Hon’ble Court is assured that the said statement was only meant to assure that justice was done to Mr. Gill and for that matter to every citizen of Pakistan. It was neither meant to be contumacious nor contemptuous. . That it goes without saying that the Respondent sincerely believes in the rule of law and independence of the judiciary9 © 18 which is the protector of people’s rights. The Respondent regrets that a mistaken impression was gathered from his speech that was basically meant to protect the rule of law and constitutional rights of a citizen. Moreover, the Honourable Court has always shown restraint in such matters and allowed free speech. . It is humbly submitted that the Respondent was under serious misunderstanding and misconception that Ms. Zeba Chaudhry was not a judicial officer but an executive magistrate performing executive / administrative functions on the direction of the Federal Government who was bent upon torturing Mr. Gill and violating his fundamental rights. It was in this misconception that she was referred to as a magistrate. Therefore the Respondent did not mean to utter anything against a judicial officer. |. That since the Respondent was not even aware that he was referring to a judicial officer, it is respectfully submitted that there was no question of the Respondent being in knowledge of the pendency of the matter before a judicial officer or being sub judice before this Honourable Court. The Respondent could not even conceive of attempting to secure favourable verdict in any pending legal proceedings whatsoever. The Respondent fully believes that there should be no interference whatsoever with the proceedings before any judicial officer or any sub judice matters before any of the superior courts.19 10.That it is submitted with humility and deep respect that the Respondent cannot even conceive of doing or saying anything that could be intended to obstruct the course of justice and due process. It is also submitted with humility and great respect that the Respondent cannot even conceive of undermining public confidence in the courts of law or for acting in any manner whatsoever that might fall within the ambit of contempt of court. The Respondent has always upheld and struggled for independence of judiciary and upholding of due process, The Respondent has always said or done everything within his power or discretion to enhance public conference in the course of law and due process. 11.That the Respondent submits with humility and deep respect that he cannot even conceive of doing or saying anything which brings Administration of law into disrepute or results in eroding the integrity and credibility of the judicial system. The respondent has always believed in strong, independent and credible judicial system that ensures and upholds constitutional dispensation in Pakistan as envisaged under the Constitution for an organ of the State. 12.That the Respondent and his counsel shall make further submissions at the time of the hearing of this matter.20 13. That the Respondent, throughout his life, has strictly followed the law. Ever since he entered politics, he has struggled and stood for the rule of law and the constitution of Pakistan. The Constitution has given right to every citizen not only to raise his voice against injustice but also to use, within the ambit of law, all means to stop injustice. With this right in view, the Respondent announced that he would use legal means to seek justice for Shahbaz The Respondent had been informed that Shahbaz Gill was subjected to inhuman custodial torture and was sexually abused and dehumanized. The Respondent was also informed that the learned judicial officer was also aware of the abuse which mentally broke Gill down. Despite knowing that, the learned judicial officer handed him over to the same agency who had subjected him to such torture and was responsible for the inhuman treatment to him. The Respondent raised his voice to express that he intended to take legal action and seek justice for Shahbaz Gill. If, in a public rally and in the flow of speech (Josh e Khitabat), the Respondent uttered words which could annoy this Honourable Court, the Respondent wants to categorically state that it was certainly not his intent. As someone who believes in rule of law and strong independent justice system, the Respondent does not believe in hurting the feelings of Hon’ble Judges. The Respondent submits with humility that if words he uttered is regarded as inappropriate, he is willing to take them back. It is humbly submitted that the court may kindly examine the content of his speech in the context of his intention which was bona fide.21 IT IS WHEREFOFRE IT IS MOST RESPECTFULLY PRAYED THAT this Honourable Court may graciously be pleased to discharge show cause notice dated 25.08.2022 issued to the Respondent and the present contempt proceedings may kindly be disposed of. Any other relief to which the Respondent may be entitled to in the facts and circumstances of the case. Dated: 30.08.2022. RESPONDENT ‘through Hamid Khan, Sr. ASC Barrister Salman Safdar, ASC © Muhammad Wagar Rana, ASC Niaz Ullah Khan Niazi, ASC Shoaib Shaheen, ASC Advocate Ajmal Ghaffar Toor