P L D 1976 Lahore 714 (PLP)

KARAM ELAHBS CHAUHAN. J. In a petition under Article 204 of the Constitution of the Islamic Republic of Pakistan entitled Habih‑ul‑Wahab Elkheiri, Advocate, Rawalpindi v. Sh. Shaukat Ali (Criminal Original No. 58 of 1975) notice was issued by the Senior Vacation Judge (Mr. Justice Zaki‑ud‑Din Pal) to the respondent on the 6th of August 1975, to show cause why he should not be committed for having made contemptuous utterances against the superior Courts of the country in his address to the Rawalpandi Bar Association on the 25th of July 1975. On reference by the learned Single Judge, the learned Chief Justice constituted a Bench of seven Judges of this Court. The case came up for hearing on the 22nd of September 1975 when the respondent appeared and raised no objection against the constitution of this Bench. He denied having said anything constituting contempt of the Court and filed a written statement controverting the averments of the petitioner. This necessitated recording of evidence. It was, therefore, decided that the evidence should be recorded by two members of the Bench (Mr. Justice Muhammad Akram and myself). The order was passed in the presence of the respondent and he had no objection to the same. The case consequently came up before us for recording of evidence on 29th of September 1975. On that "date the Chief Justice was out of the country in a delegation to participate in the Conference of the World Association of Judges held in Washington. At the very outset the respondent presented an "additional written statement" which he described as ."facts necessary to be placed on the record". In the written statement he made unwarranted imputation against the High Court and its Judges. He also took objection to the competence of the larger Bench constituted by the Chief Justice to deal with the matter and prayed that "under section 527 of the Criminal Procedure Code, this Bench may refer the matter to the Provincial Government for the transfer of the case to the Peshawar High Court".

2. As the averments in the additional written statement which was presented to us and oral utterances made in view of the Court had the object and tendency to malign the Court and prima facie amounted to contempt of Court, we issued a notice to the respondent to show cause why be should not be punished for having committed contempt in the face of the Court. This case stands registered against the respondent as Criminal Original NO. 78 of 1975 and this judgment will dispose of the same. In reply to the show‑cause notice the respondent stated that he had given expression to "his feelings and impressions" in his additional written statement. During arguments we had to repeatedly warn him that the allegations made by him were not relevant to the show‑cause notice issued to him by us and prima facie constituted contempt of this Court. In the midst of his arguments the respondent prayed for an adjournment till the next following day, so that he could study the law. In all fairness we, therefore, allowed an adjournment to the respondent at his request to the 30th of September 1975. But then he failed to appear on the adjourned hearing and instead filed an application before us through Dr. Khalid Ranjha, Advocate, seeking adjournment on the ground that against our order of 29th of September 1975 issuing show‑cause notice to him, he had filed a petition for Special Leave to Appeal in the Supreme Court of Pakistan and had gone to Rawalpindi for the purpose. It was a matter of regret that a contemner should have chosen to absent himself at the hearing in the midst of the arguments after having thus secured an adjournment from us on a pretext. Nontheless in deference to the Supreme Court. we adjourned the case to 1st of October 1975 when he again did not appear and sent a medical certificate issued by Dr. Muhammad Iqbal M. P. through his lawyer Dr. Khalid Ranjha, to the effect that the respondent was running high blood pressure (184/118) and was also running high temperature (103.6). Dr. Khalid Ranjha, Advocate, informed us that the respondent had returned from Rawalpindi and that the Supreme Court had declined to accede to the prayer of Sh. Shaukat Ali for stay of proceedings before us. We were not fully satisfied with the medical certificate issued by the private practitioner. But out of sheer good grace and as a matter of concession only, we allowed another adjournment in the case to the 10th of October 1975. But again the respondent did not appear before us on the date fixed and sent two medical certificates which did not specifically state that he was unable to move about or appear in Court. On this we called for a report from the concerned Medical Officer and adjourned the case to 20th of October 1975. The respondent again did not appear on the date fixed for the hearing and although the report of the Medical Officer did not fully justify his non appearance before us, yet we allowed another adjournment in the case to the 30th of October 1975. On this date he appeared with his learned counsel Mr. Rafiq Ahmad Khan Bangash, who made the following statement before us recorded in the main case (Cr. Orig. 58 of 1975) against him:‑ "I have instructions to withdraw the statements, written or oral, made or filed in this Court by the respondent. They should be consi dered as never to have come on record and may be returned to him in original. 1 have also instructions to further state that my client wishes to purge himself of the contempt and shall make a statement to that effect before the larger Bench constituted to hear Criminal Original No. 58 of 1975 against him. It is requested that this case may be adjourned so as to be heard along with that case." We, therefore, adjourned this case for hearing before us on the 5th of November 1975. On 6th of November 1975 Sh. Shaukat Ali filed the following written apology before the larger Bench of seven Judges in the main case against him:‑ "I do not want to contest the proceedings. I am extremely sorry for the things done and said by me. I withdraw my statements and give an assurance that I shall be more careful in future. I have profound respect for the learned High Court. I tender unqualified apology and place myself completely in the merciful hands of this learned Court." To supplement this, he also stated in Court as under: "(Q) You had said in your written apology: `I do not want to contest the proceedings. I am extremely sorry for the things done and said by me I withdraw my statements . . . . " What did you precisely mean by this? (A) By this I meant that the statements which I made before the Rawalpindi Bar, and are attributed to me, were false, incorrect and wholly without foundation." In these circumstances in Criminal Original No. 58 of 1975 the Court found him guilty of having committed contempt of the Court and convicted him accordingly, but kept the imposition of the sentence in abeyance for two years to watch his conduct.

3. In the instant case before us also, on 6th of November 1975 he tendered his unqualified apology in his written statement which is as follows: "(1) 1 do not want to contest the proceedings. I am extremely sorry for the things done and said by me. I have no hesitation in stating that inquiries have revealed that things said by me about the learned Chief Justice and this Court were wholly without foundation. I with draw my statements and give an assurance that I shall be more careful in future. I have profound respect for the learned High Court. I tender unqualified apology and place myself completely in the merci ful hands of this learned Court. (2) I offer apology to the learned Chief Justice personally also."

4. There is hardly any doubt in our mind that the additional written statement filed by the respondent in Court at the Bar and his oral utterances made before us on 29‑9‑1975 constituted contempt of this Court. The respondent in his contemptuous utterances and averments deliberately tried to undermine the dignity and prestige of this Court. He was already sunder notice in Criminal Original No. 58 of 1975 to show cause as to why he should not be punished for contempt of this Court. But strangely enough instead of defending himself and proving that his speech before the Rawalpindi Bar Association did not constitute any contempt, he persisted and chose to commit a further contempt in the view of this Court. He elected to tread on a dangerous path by undermining the dignity of the Court. In his apologies tendered in the proceedings held in Criminal Original No. 58 of 1975 and this case before us on 6th of November 1975 he eventually admitted that the things said by him about the High Court and the Chief Justice were wholly without foundation and that his disparaging statement made before the Rawalpindi Bar was false, incorrect, and wholly baseless. In the face of this state of affairs his conduct before us, on his own later admissions, was altogether unjustified and amounted to gross contempt of this Court. In these circumstances we bold the respondent guilty of having committed gross contempt of this Court and convict t him accordingly.

5. On 29‑9‑1975. the respondent in his additional written statement before us prayed that under section 527 of Code of Criminal Proce dure this Bench may refer the case to the Provincial Government for transfer to the Peshawar High Court. This was by no means a bona fide request and reference to the provisions contained in section 527 of the Code was made merely as an excuse for giving vent to his fulminations against this Court. The respondent is an Advocate of some standing and must be aware of the provisions of section 527 of Cr. P. C., which do not govern proceedings under Article 204 of the Constitution whereunder that High Court, whose contempt is committed is alone competent to try the case and not any other High Court. No case‑law or precedent has been shown to us that a High Court of one province can try a case of a contemner who has committed contempt of another High Court. On the other band, in G. S. .Gideon v. The State (P L D 1963 S C 1), Dr. A. N. M. Mahmood v. Dr. M. O. Ghani, Vice‑Chancellor and others (P L D 1967 Dacca 67), In re: K. L. Gauba, Barrister at‑law (A I R 1942 Lah. 105) In re: Banjamin Guy Horniman (A I R 1944 Bom. 127) it was held that Code of Criminal Procedure was not applicable to contempt proceedings. It may be pointed out that Article 204 of the Constitution gives the High Court power to punish a contempt of itself. If any order of transfer is made in a pending case of contempt of a High Court to some other High Court, then that would tantamount to depriving the High Court concerned of the power vested in it to punish for its contempt. This power of transfer neither vests in any ordinary Legislature . nor in any other executive Authority. It is settled law that the Judge or Court whose contempt is committed can well try the contemner. This is necessary not for the personal vindication of the Judge or the Court concerned, but in the larger interest of the public with a view to retain their confidence in the Courts of the country. It is stated in Halsbury's Laws of England (Third Edition), Volume 8, in Para. 9, at page 7 that proceedings for punishing contempt are taken not with a view to protect either the Court as a whole or the individual Judges of the Court from repetition of the attack but with a view to protect the public and specially those who either voluntarily or by compulsion are subjected to the jurisdiction of the Court, from the mischief they will incur if the authority of the Tribunal be undermined or impaired. The gravamen is an endeavour to shake the confidence of the public in the Court. To the same effect are the observations of Wills, J., in Rex v. Dales ((1906) 1 K B 32), Woodroofe, J., In re: Motilal Ghose (1 L R 45 Cal. 169), observed that "as regards jurisdictions a number of stale objections were taken. It is not neces sary to go into the history and nature of contempt. It is too late now to contend that we have no other jurisdiction than that conferred by the Indian Penal Code, or that in exercising this jurisdiction we are Judges in our own cause. The jurisdiction has been approved many years ago by; amongst other Judges, their Lordships of the Privy Council. The second observation applies to all cases of contempt, and if it were given effect to, the Court would be deprived of its jurisdiction in every case. In the present one the Court, as it is entitled to do, issued the rule of its own motion. The Court, however, in such case does not seek to vindicate any personal interests of Judges, but the general administration of justice, which is the public concern." In Re: K. L. Gauba, Barrister‑at‑law, Lahore it was observed:‑ ".If there was any force in this contention, the contemner with a view to oust the jurisdiction would have merely to scandalise not a particular Judge, but all the Judges of the Court as a whole in order to escape from punishment." And it was held: "While it is unpleasant for any Judge to have to sit in Judgment in a case in which he has been personally attacked, it is his duty to do so where he has been the subject of a malicious and impudent publication .containing imputations which are obviously false and of the falsity of which he himself has the best knowledge. In such cases he has no .alternative but to sit as it is impossible to vindicate the reputation of the Court which has been attacked by taking proceedings in any Court for libel or otherwise." The same was the view expressed in an earlier case Re: Shamlal (1). This proposition was rearmed in The Crown v. Amin‑ud‑Din Sahraht and another(2) and was approved in Sir Edward Sreelson v. The Judges of the High Court .of West Pakistan and another (3), Ashfaq 4hmad Sheikh v. The State,(4) and State v. Mujibur Rahman (5) where it wail held that proceedings for contempt of Court are an exception to the general rule that a Judge should not hear any matter in which he has personal interest in the decision on it. There are a large number of precedents where the same Judge(s) whose contempt was committed heard and decided those cases, and as the proposition is well‑settled we need not encumber this judgment by dilating any more on this subject.

6. In the aforementioned background, coming to the apology tendered by the respondent it is to be appreciated that the same was not tendered by the respondent at the earliest opportunity. It was only after he had partly argued his case before us that he sought an adjournment from us for further arguments. He then tried to justify his stand by filing the petition for Special Leave to Appeal in the Supreme Court against our ‑order. The respondent has bean a Judge of the High Court and President of the Lahore High Court Bar Association. The apology tendered by him although belated is nontheless unqualified and appears to have been made in all sincerity. He frankly conceded that the imputations made by him were incorrect and wholly without foundation. He has withdrawn his offending statements and promised to be careful in future. He has also tendered personal apology to the learned Chief Justice and thrown himself at the mercy of this Court. The respondent has also resigned as the President of that Bar Association from 18‑11‑1975. In the circumstances ‑we have taken a lenient view and admonished him. He is warned to be careful in future. We further direct that the respondent shall pay Rs. 2,000 (rupees two thousand) as costs. The amount shall be deposited in Court within a fortnight and paid to M. Anwar, Bar‑at‑Law who ably assisted us as amicus curiae and whose appointment could have been obviated bad the respondent tendered the apology at the earliest. :

6. A. H, Order accordingly. (1) A I R 1932 Lah. 502 (2) A I R 1949 Lah. 266 J3)PLD1961SC237 (4)PLD1972SC39 (5) P L D 1973 Lah. 1