P L D 1969 Lahore 522 (PLP)

ANWARUL HAQ, J.‑--These proceedings under Article 123 .of the Constitution of the Islamic Republic of Pakistan have arisen out of a letter addressed by the respondent Mr. Yusuf Ali ,Khan, Bar‑at‑Law, to Mr. Justice M. Jamil Asghar of this Court on the 28th of June 1968. As the letter has to be considered as a whole in order to appreciate the context in which the several offending remarks have been made, the same may be reproduced "here:‑ "(1) I am sorry to have had to write to you again, but it will be appreciated that I wrote to you on the 17th May 1968, re: Cr. Misc. No. 1934 of 1968, and sought an interview with you in order to discuss the unhappy incident which took place on the 15th May. I had had no response from you to that letter but I found some pleasant change in your Lordship's attitude and, therefore, did not think that I should press the matter any 'further. (2) This morning again I have been insulted by you in the open Court and in the presence of the public and the lawyers sitting there. I, therefore, wish to recall the incident of the 15th May first, and then proceed to place on record the unhappy and unfortunate happening of today. (3) You will recollect that on 15th May you turned hostile and shouted on me and in the open Court announced the adjournment of the matter until the following morning. When you were leaving for the retiring room I sought your permis sion to inspect the file bur you said, `No, I will hear you to morrow' and murmured a threat `I shall deal with you tomorrow'. I thought you intended by the threat to serve me with a notice of contempt, and, therefore, I consulted two senior lawyers on the subject, and approached the Editor of a newspaper, and through him some other newspaper Editors, so that the Press would be present on the following morning, i.e. the morning of 16th May. But to my astonishment when 1 returned home, I received a supplementary list in which I found that you had to announce the order in Cr. Mist. No. 1394 of 1968 (Shah Muhammad v. Muhammad Ameer, etc.). The No. in the list is incorrect because the actual No. is 1934, but the parties' names are correct and the name of the counsel, i.e., my name given in brackets made me go to your Lordships Court on the morning of 16th May. I went there and waited until 10‑30 a.m., and when you went to the retiring room I made a query and the Reader told me that the order had been announced and the petition had been dismissed. Thereafter I could have taken steps to safeguard my interests and those of my client but out of reverence for your position as a Judge of the High Court and my own regards for your person I only thought it fit to write you a letter seeking interview and make my submissions personally in order to remove your Lordship's misunderstandings, if any, and thereby, remove your hostility towards me. But as stated above the interview was not grant ed and as a matter of fact I have not even had the courtesy of an acknowledgment of my letter. I went to see you this morning with a wish to talk to you politely but you refused to spare a moment for me. During the course between the letter and today I twice appeared before your Lordship in con nection with a case, `Sarfraz Ahmad v. State', cited as subject,. and I felt that Your Lordship's hostility has subsided. But this morning the moment I entered your Lordship's Court room, your Lordship gave me an angry look. I could make out then that the hostility had revived and when the case was called your Lordship not only refused to hear me, preferred to show me angry eyes and talked to me in a most insulting manner certainly take exception to this behaviour on your part and reserve my right to make a representation to the President of Pakistan for regular action by the Supreme Judicial Council. It may be pointed out that the Members of the Bar present there, including the opposing counsel in the case in which I appeared, felt that your Lordship had insulted me and that I should do something about it. Your Lordship will appreciate that I am an Advocate of this Court and am entitled to all the courtesies and regret very much that the behaviour of your Lord ship is neither consistent with your position as a Judge nor does it extend the courtesy which an Advocate of this Court is entitled to. It will not be out of the way to point out here that this attitude on your Lordship's part has developed since the month of April last, when I presented the first petition on behalf of Sarfraz Ahmad (Cr. Mist. No. 1861 of 1968) for the grant of bail when your Lordship refused to hear me and passed an order, `No ground for bail. Dismissed', and when I requested that I would be heard your Lordship observed. `Mr. Yusuf Ali Khan: there is no law in bail, it is just mehr bani. I came out and thereafter I filed, a petition for transfer of the case from the Court of Khan Muhammad Siddique Ahmad Khan, Sessions Judge, Sahiwal, and appeared before your Lord ship on 30‑4‑1965. On that date I was satisfied with your Lordship's attitude and had thought that the misunderstandings forming the basis of your Lordship's hostility had died. I appeared before your Lordship again on the 10th of May, found your Lordship courteous, decent and behaving in a proper manner as an honourable Judge should, but when I appeared again on the 15th May, I found the change complained above. (4) I am fully aware of the background of your hostility and am in no doubt that your behaviour is not because of any personal grievance of your own and that there is some other man behind it. Whatever the reasons. I am aggrieved by your behaviour and do hereby emphasis once again that it does not behove a Judge of the High Court. I shall go still further, and add that it does not behove even an ordinary gentleman. As a Judge of the High Court you must act as a Judge and your decisions must be judicial and not tainted with personal malice for one reason or the other. I have no hesitation in saying that your Lordship's decisions in both the Criminal Miscel laneous Petitions (1934 of 1968 and 2770 of 1968) and the two earlier petitions filed on behalf of Sarfraz Ahmad are not judicial, but rather founded on your personal hostility. In view of the above I feel I should request that you may advise the Deputy Registrar not to fix my cases before you. It is both in the interest of justice, as well as the interest of your person because I make it clear that I shall not pocket any more insult and it might result in a country‑wide, rather world‑wide scandal. Again, it is highly undesirable that wrongful orders should be wilfully passed by you to the detriment of others because of your hostility towards me. Yours faithfully, (Sd.) YOUSUF ALI KHAN, Advocate."

2. In reply to the show‑cause notice the respondent submit ted a written statement on the 20th of September 1968 in which he has admitted having sent the letter in question to the learned Judge but has denied that the contents of the letter were in any way couched in scandalous language. He has stated that the letter was not written with the intention of scandalising the Judge or the Court and "it has been addressed to the learned Judge by name and marked `confidential', with a view to expressing the injured feelings of the respondent. No publication has been intended or taken place, and, therefore, the vital ingredient of scandalisation has not obtained. In the letter the facts has been truly and sincerely stated. The letter has been deli vered to the learned Judge by name in a confidential cover, and does in no way offend against the dignity of the Court, nor does it tend to lower its authority and bring the administration of justice into disrespect".

3. The respondent has then raised certain legal arguments with reference to the dictum of the Supreme Court in certain decided cases and has asserted that `it is denied that the tone of the letter is insolent or that the language applied therein is dis respectful. The respondent has nothing personal against his Lordship Mr. Justice M. Jamil Asghar. The respondent only has a great reverence for his Lordship's position as a Judge of the High Court. He has then claimed that it will be appreciated that notwithstanding the insulting and highly provocative attitude of his Lordship in the presence of a number of fellow lawyers and others, the respondent remained respectful for his Lordship in the Court and as usual bowed to the learned Judge before leaving. He has concluded his written statement by saying that although he has not committed any offence, yet in difference to the observations of his Lordships the Chief Justice of Pakistan in Sir Edward Snelson's case which were reiterated in Mir Abdul Qaiyum's case, the respondent. In the circumstances feels obliged to offer an unconditional apology to the Court for anything done by him which the Court has though fit to take exception, to and does hereby offer one.'

4. When the case came up before us on the 20th of Septem ber 1968, Mr. Jamil Hussain Rizvi, who was representing the respondent, asked for time to consider the matter further with a view to making some amendments in the written statement filed by the respondent. More time was allowed for the same purpose on the 10th of October 1968. However, at the last hearing on the 5th of November 1968, the respondent and his counsel both. stated that the respondent did not wish to make any change in the written statement already submitted by him on the 20th of September 1968.

5. During the course of arguments it was suggested by Mr. Jamil Hussain Rizvi that as the offending letter mentioned certain facts and events that were said to have taken place in the Court between the respondent and the Judge, either evidence should be recorded by us to ascertain the true state of affairs or at least the comments of the Judge concerned should be obtained on the allegations made by the respondent in the letter in question.. After giving our anxious consideration to this suggestion of the learned counsel, we reached the conclusion that it was not neces sary to adopt either of these courses. The letter is self‑explana tory and it is possible to decide the case on the basis of the statements made in the letter itself without resorting to any extraneous evidence or amplification of the events narrated therein. We accordingly propose to examine the case on the basis of the contents of the letter and the written statement submitted by the respondent.

6. The first question which calls for determination in this case is whether the letter written by the respondent to the Judge contains matter which would fall within any of the categories of contempt mentioned in Article 123 of the Constitution. Clause (2), of this Article is in the following terms:‑ "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) scandalises the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; or (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." We have read the respondent's letter carefully and we consider that its contents fall within the ambit of sub‑clauses (a) and (b) as mentioned above. After reciting some facts about an alleged incident which took place between him and the Judge on the 15th of May 1968, when the respondent was arguing a case before the Judge, the respondent has stated in the middle of paragraph (3) of his letter that he consulted two senior lawyers on the subject and approached the Editor of a Newspaper, and through him some other Newspaper Editors, so that the Press would be present on the following morning, i.e. the morning of the 16th of May. It seems to us that by these remarks the respondent was clearly intending to intimidate the Judge so as to prevent the latter from acting in a free and independent manner while dealing with the respondent's cases in Court. Then again in the same paragraph the respondent has accused the Judge of personal hostility towards the respondent and has alleged that the Judge proceeded in an arbitrary manner and refused to hear the respondent in support of his case. To accuse a Judge of a superior Court acting in an arbitrary manner and with personal hostility is a serious allegation amounting to scandalising the Court such as tends to bring the Judge in to hatred, ridicule or contempt. It tarnishes the image of an independent and impartial judiciary presided over by balanced persons.

7. In the same paragraph the respondent has further extend ed a threat of reporting the matter to the President of Pakistan for regular action by the Supreme Judicial Council, and has then accused the Judge of saying that in his opinion there was no law in bail matters and it was just a meharbani. These accusations are again of a very serious nature and have the effect of scanda lising the Court by casting aspersions not only on the technical and legal knowledge of the Judge with regard to matters with which he is called upon to deal, but also with regard to his impar tial attitude as a Judge.

8. Paragraph (4) contains still more serious allegations to, the effect that the Judge was being influenced in his decisions by extraneous considerations and that "there was some other man behind" his behaviour. The paragraph then ends up by stating that the respondent had no hesitation in saying that his Lord ship's decisions in two particular matters, namely, Cr. Misc. Petitions bearing Nos. 1935 and 2770 of 1968, and the two earlier petitions filed on behalf of one Sarfraz Ahmad, were not judicial, but rather founded on his personal hostility. These are grave allegations indeed to make against a Judge of a superior Court and constitute contempt of the kind, described as scandalising the Court.

9. The concluding paragraph (5) of the respondent's letter is not only insolent and offensive but also contains a threat, virtually ordering the Judge to direct the Deputy Registrar of the High Court not to fix the respondent's case before him as "it is both in the interest of justice as well as the interest of your person". We are not clear whether the respondent was indeed hinting at physical violence, besides other injury when he spoke of the interest of the person of the Judge. This last paragraph again contains another threat to the effect that the respondent would not pocket any more insult and it might result in a country‑wide, rather world‑wide scandal. The letter concludes by saying that "it was highly undesirable that wrongful orders should be wilfully passed by you to the detriment of others because of your hostility towards me". The statements contained in this paragraph appear to us to be not only in the‑nature of scandalisation of the Court but also having the tendency of directly interfering with the free exercise of Judicial processes by the Judge concerned as he was being threatened with personal injury of many kinds.

10. Reading the letter critically and analytically as above, and also reading it as a whole it is clear to us that it is perhaps one of the most insolent, most offensive and most scurrilous com munications ever addressed by a practising member of the Bar to a Judge of the superior Court of which such member claims to have the honour of being an Advocate. The question is whether there are any circumstances which would take this letter out of the purview of actionable contempt.

11. It was submitted by Mr. Jamil Hussain Rizvi that an essential ingredient of contempt torned as scandalising the Court, is the element of publication which is completely missing in this case as the letter in question was sent directly to the Judge by name and was marked "Confidential". We consider that in this connection we cannot do better than refer to the case of State v. Abdul Latif (P L D 1961 Lah. 51). The question in that case was whether the respondent had committed contempt of Court by addressing a letter to a Judge of the High Court imputing injustice to him after he had decided a transfer application against the respon dent. Shabir Ahmad, J. thought that since it had not received publicity and did not affect a pending cause it did not constitute contempt. Kaikaus, J. was, however, of the view that publicity was not necessary and it was enough that the Judge had been charged with injustice in relation to his duties as a Judge. The case was then put before Kayani, C. J. and M. Yaqub Ali, J., who held that there was nothing in the definition of contempt to suggest publicity as an ingredient, as in the case of defamation. Send ing the letter in question to the Judge was contempt, and the fact that the case was not pending was immaterial, Kayani, C. J. observed:‑ "Contempt is a disrespectful attitude of the mind towards a Court of law and when it expresses itself in words it brings the authority of law into disrespect. It is the act of the person showing disrespect, not the response of the public, with which contempt concerns itself . . . . . . It would be strange indeed, if we thought that he was doing a legal injury if he wrote to the servant of the Judge but he was not doing an injury if he wrote to the Judge himself. Contempt, as Oswald said, ‑`Primarily signifies, disrespect to that which is entitled to legal regard', and quite obviously, you can show disrespect to a Judge without looking round for a witness. The `despising' of the authority justice or dignity of a Judge is another description of contempt (Miller v. Knox) and it cannot be reasonably said that such "authority is not despised if the address is to a third person . . . . . This will amount to introducing almost a legal fiction in the definition of contempt which is a thing of actual, visible perception not a sentimental, over‑sensitive ideology."

12. In the same case Kayani, C. J., further observed that "if a Judge had the misfortune of being thrown on a society or Government which was constantly critical of his conduct, how -soever, privately and confidentially it were done, he would indeed be a super‑human being if his judicial mind were not impaired. And if this be the result of letters addressed privately, I have no hesitation in saying that they are prejudicial to the adminis tration of justice". These conclusions were reached by the learn ed Judges after an examination of several cases, to which it is not necessary to refer for the reason that we are in respectful agreement with these views. It is clear that even though publicity may be an essential ingredient of liberal or defamation, yet it need not necessarily be so in the matter of contempt as so ably pointed out by Kayani, C. J. We have already observed that the letter written by the respondent was clearly calculated to show the utmost disrespect for the Judge concerned and for his judicial conduct. Such a communication cannot but have an extremely damaging effect on the mind of the Judge, so as to interfere with and obstruct the process of the Court in more ways than one. We have, therefore, no hesitation in saying that the letter written by the respondent constitutes contempt of the most serious kind, even though it was addressed directly to the Judge and marked "Confidential". The offensiveness of the communication is not lessened by the fact that the respondent was careful to use words like "your Lordship" etc.

13. It was then submitted by Mr. Rizvi that it is clear from the letter that some unpleasant incident did take place between the respondent and the Judge during the Court of which the respondent felt insulted and, therefore, it was merely to give vent to his feelings and to lodge a protest that the letter was written. We have already stated earlier that we did not think it necessary .to record any evidence in this case or even to call for the com ments of the learned Judge concerned with the matter, and accord ingly we have to proceed on the basis of the letter itself. Assum ing that some incident did not take place between the respondent and the Judge as a result of which the respondent rightly or wrongly entertained a feeling that he had been insulted in Court, yet this sense of injury and insult could not, by any stretch of imagination give him the right to accuse the Judge of arbitrariness, malice and amenability to extraneous influences while giving judi cial decisions. It goes without saying that it is the duty of the presiding officers of Courts to maintain the dignity and respect of the members of the Bar, who are undoubtedly engaged in difficult task, yet an outburst of temper or impatience on the part of the judge cannot justify a member of the Bar in resorting language which the respondent has thought fit to employ in the letter under consideration. It was observed by their Lordships of the Supreme Court in the case of G. S. Gidean, Advocate (P L D1963 S C 1) that "even assuming that Abdul Aziz Khan, J. made some obser vation as to the quality of the draftsmanship of the appellant or addressed some disparaging remarks about it in the Court Room, we have no manner of doubt in our minds that the appel lant as an Advocate of the Court would have no justification for retorting in the language which is admitted by all the witnesses to have been used by him. The words uttered by the appellant were not only disrespectful but also insolent and amounted to a personal insult to the Court in its face. There fore, they clearly constituted a contempt and unless uttered by an insane person can never be excused". After making these observations their Lordships went on to state that "whilst we are in entire agreement with the view expressed by Oswald, in his book on Contempt of Court, Third Edition, page 54 that `an over‑ subservient Bar would be one of the greatest misfortunes that could happen to the administration of justice' and are prepared to extend to the gentlemen of the Bar the fullest latitude to act fearlessly and with self‑respecting independence in the discharge of their duties we cannot imagine that such indulgence can ever justify the use of unbecoming or insulting languages in the face of the Court. A lawyer is expected at all times to maintain the dignity of the Court regardless of the shortcomings of the individual presiding over the Court, for, it is not his personal dignity but the dignity of his office which has in the public interest to be respected".

14. Although the remarks made by their Lordships of the Supreme Court have direct reference to a situation which arose in the Court Room itself between the presiding Judge and a member of the Bar, yet they seem to apply with equal or even greater force to a situation whereas member of the Bar deli berately addresses an offensive communication to the Judge after the incident, when passions have subsided. We consider, there fore, that while the respondent may be conceded the right to lodge a dignified protest with the Judge, assuming that some unpleasant incident had taken place between them, this right could not extend to using insolent and disrespectful language to utter ing threats of various kinds and to making malicious allegations reflecting upon the judicial indignity and rectitude of the Judge and having the tendency of deterring him from acting fearlessly and independently in discharging his judicial functions. We would, therefore hold the respondent guilty of contempt of the gravest kind and convict him accordingly.

15. We have already stated in an earlier part of this judg ment that the respondent had concluded his written statement by saying that in view of the dictum of his Lordship the Chief Justice of Pakistan in Sir Edward Snoloson's case he feels obliged to tender unconditional apology to the Court for anything done by him which the Court had thought fit to take exception to. When we examined this written statement we found that this was hardly the kind of apology which could be accepted in a case like the present. It will be seen that the respondent has tried to justify his action in writing the objectionable letter by asserting that the facts had been truly and sincerely stated therein. There cannot be both justification and apology, for the two are mutually incompatible. Further there is no evidence of contrition on the part of the respondent and the apology tendered by him, although termed unconditional, was merely in name, as he felt obliged to tender the same in view of certain observation made in a certain case by his Lordship the Chief Justice of Pakistan, and not because he was really repentant for the insult which he had offered to the dignity of the Court. When we pointed this C out to Mr. Jamil Hussain Rizvi, he took time from us to consider whether the respondent would like to amend his written statement, but we were informed that the respondent had decided not to make any alteration in the form of the apology tendered by him. In these circumstances, we are constrained to hold that there is indeed no apology from the respondent and that, on the contrary, his refusal to tender a proper apology during the course of these proceedings has aggravated his offence by showing misconceived obstinacy and bravado. In such cases it is not so much the question of the dignity of the individual Judge, who is the target of such insolence and affront as of the public wrong that a contempt of this nature involves. It is our duty to see that such attempts are suppressed in the interest of the fearless and: proper administration of justice, such as would continue to inspire public confidence. It is not our design or purpose to be vindictive but we consider that the punishment to be awarded has to be proportionate to the gravity of the offence committed by the respondent as well as of his subsequent attitude during the present proceedings. Bearing all these considerations in mind, we would sentence him to undergo simple imprisonment for one month and: to pay a fine of Rs. 2,

000. In default of payment of fine he shall undergo further simple imprisonment for two months.

16. The sentences are suspended until and including the 15th of January 1969 so as to enable the respondent to file an appeal in the Supreme Court, if he so desires, and to obtain necessary orders in this behalf. If no orders are obtained by the respon dent by that date, then the sentence shall be implemented. K. B. A. Conviction recorded.