Historic Judgment

Here are the concluding paragraphs or the Historic Judgment in contempt of court case against Prime Minister of Pakistan, Syed Yusuf Raza Gilani. It is historic because Syed Yusuf Raza Gilani is the first ever chief executive of any country who has been punished for contempt of the court. Complete judgment can be seen here.

68. After finding the factual allegations against the accused to have been established beyond reasonable doubt, we now advert to some legal aspects regarding his guilt and punishment. We note in this context that key words used in the Charge were “willfully flouted”, “disregarded” and “disobeyed” which find a specific mention not only in Section 2(a) of the Contempt of Court Ordinance (V of 2003) defining “civil contempt” but also in Section 3 of the said Ordinance defining “Contempt of Court”. The said Ordinance V of 2003 derives its authority from Article 204(3) of the Constitution, Article 204(2) of the Constitution itself empowers this Court to punish a person for committing “Contempt of Court” and the above mentioned words used in the Charge framed against the accused also stand sufficiently covered by the provisions of Article 204(2) of the Constitution. It is pertinent to mention here that Section 221, Cr.P.C. dealing with Charge and its forms clarifies that a Charge is to state the offence and if the offence with which an accused is charged is given a specific name by the relevant law then the offence may be described in the Charge “by that name only”. According to Section 221, Cr.P.C. “If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged”. It is further provided in Section 221, Cr.P.C. that “The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge”. In the case in hand not only the name of the offence, i.e. contempt of court had been specified in the Charge framed against the accused but even the relevant Constitutional and legal provisions defining contempt of court had been mentioned in the Charge framed. According to Section 221(5), Cr.P.C. the fact that the Charge is made in the terms noted above “is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case”.

69. We further note that even if a Charge framed against an accused for committing contempt of court is established before a court still for finding him guilty or for punishing him, even after establishing of his culpability, the provisions of Section 18 of the Contempt of Court Ordinance (V of 2003) require the following satisfactions to be recorded by the Court:
“18. Substantial detriment.- (1) No person shall be found guilty of contempt of court, or punished accordingly, unless the court is satisfied that the contempt is one which is substantially detrimental to the administration of justice or scandalizes the court or otherwise tends to bring the court or Judge of the court into hatred or ridicule.
(2) In the event of a person being found not guilty of contempt by reason of sub-section (1) the court may pass an order deprecating the conduct, or actions, of the person accused of having committed contempt.”

70. These provisions of the Contempt of Court Ordinance clearly show that despite his culpability having been established, a Court seized of a matter of contempt is not to hold the offender guilty or punish him for every trivial contempt committed and it is only a grave contempt having the effects mentioned in Section 18(1) that may be visited with a finding of guilt or punishment. It is important to note in this context that the satisfaction of the Court mentioned in section 18(1) regarding gravity of the contempt is to be adverted to by it after commission of the contempt is duly established and such satisfaction of the Court is neither an ingredient of the offence nor a fact to be proved through evidence. In our considered opinion such satisfaction is purely that of the Court concerned keeping in view the nature of the contempt found to have been committed, its potential regarding detrimental effect upon administration of justice or scandalizing the Court and its tendency to bring the Court or the Judge into hatred or ridicule. At such stage the contempt of Court attributed to the offender already stands established and assessment of the tendency of the contempt to possibly create the above mentioned detrimental effects is thereafter to be undertaken by the Court for its own satisfaction in order to decide whether to convict or punish the offender or not and such satisfaction based upon judicially assessed possible effects is not to be based upon proofs or evidence to be produced during the trial. However, if the Court is not satisfied about the above mentioned detrimental effects then despite the contempt having been established and proved, it may not convict or punish the offender and may resort to merely deprecating the conduct or actions of the accused in terms of Section 18(2) of the Ordinance. We may also add that the satisfactions of the Court contemplated by Section 18(1) of the Ordinance are the minimum thresholds to be crossed and there is no limit upon a Court regarding not recording satisfaction in respect of any graver detriment or tendency made possible by the conduct or actions of an offender. In the case in hand the accused is the highest Executive functionary of the State of Pakistan and he has willfully, deliberately and persistently defied a clear direction of the highest Court of the country. We are, therefore, fully satisfied that such clear and persistent defiance at such a high level constitutes contempt which is substantially detrimental to the administration of justice and tends not only to bring this Court but also brings the judiciary of this country into ridicule. After all, if orders or directions of the highest court of the country are defied by the highest Executive of the country then others in the country may also feel tempted to follow the example leading to a collapse or paralysis of administration of justice besides creating an atmosphere wherein judicial authority and verdicts are laughed at and ridiculed.

71. It may be mentioned that the learned counsel for the Respondent in his written submissions brought on the record at the end of his oral arguments had specifically adverted to the provisions of section 18 of the Contempt of Court Ordinance and, thus, he was fully aware of the applicability and implications of the said legal provision vis-à-vis the case against him. It is, however, another thing that throughout his oral arguments and submissions the learned counsel for the accused had failed to utter even a single word on the subject. The Respondent was put on notice through Option No.2 in the order dated 10.01.2012 (Ex.P22) of the possible consequences of non-compliance of this Court‟s direction and the relevant portion of that order reads:
“5. This brings us to the actions we may take against willful disobedience to and non-compliance of some parts of the judgment rendered and some of the directions issued by this Court in the case of Dr. Mobashir Hassan (supra). This Court has inter alia the following options available with it in this regard:
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………It may not be lost sight of that, apart from the other consequences, by virtue of the provisions of clauses (g) and (h) of Article 63(1) read with Article 113 of the Constitution a possible conviction on such a charge may entail a disqualification from being elected or chosen as, and from being, a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly for at least a period of five years.”

72. For the above reasons we convicted and sentenced the Respondent by short order on 26.04.2012, as follows:
“For reasons to be recorded later, the accused Syed Yousaf Raza Gillani, Prime Minister of Pakistan/Chief Executive of the Federation, is found guilty of and convicted for contempt of court under Article 204(2) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance (Ordinance V of 2003) for willful flouting, disregard and disobedience of this Court‟s direction contained in paragraph No. 178 of the judgment delivered in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) after our satisfaction that the contempt committed by him is substantially detrimental to the administration of justice and tends to bring this Court and the judiciary of this country into ridicule.

2. As regards the sentence to be passed against the convict we note that the findings and the conviction for contempt of court recorded above are likely to entail some serious consequences in terms of Article 63(1)(g) of the Constitution which may be treated as mitigating factors towards the sentence to be passed against him. He is, therefore, punished under section 5 of the Contempt of Court Ordinance (Ordinance V of 2003) with imprisonment till the rising of the Court today.”

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