P L D 1963 Supreme Court 1 (PLP)

HAMOODUR RAHMAN, J.‑These three appeals arise out of the same judgment of a Division Bench of the High Court of West Pakistan. The first is directed against the conviction of the appellant therein for gross contempt of Court for which he was sentenced to three months' simple imprisonment. The second is for the expunction of certain remarks made against the Assistant‑Advocate‑General, Peshawar, imputing "lack of ability expected of a responsible law officer of the State". The third is against an order directing the issue of a notice calling upon the appellant Malik Abdul Latif to show cause as to why he should not be prosecuted for perjury for having deliberately made a false statement whilst giving evidence in the contempt proceeding. The contempt was alleged to have been committed on the 18th of May 1961, in the course of the hearing of a civil revision petition before Abdul Aziz Khan, J. sitting singly at Peshawar. The appellant Gideon, who is an Advocate practising at Peshawar, had drafted the grounds of revision and was assisting Mr. Thakur Das at the hearing Malik Abdul Latif, the appellant in Criminal Appeal No. 104 of 1962, who was representing the respondent in the said matter, raised a preliminary objection to the effect that if, as contended in one of the grounds in the revision petition, the Civil Court had no jurisdiction, then the petitioner had no case. He also contended that since the petition had been drafted in the form of a memorandum of appeal, the petitioner's Advocate should be asked to clarify as to whether he was arguing an appeal or a revision. Mr. Thakurdas appear ing on behalf of the petitioner did not give any direct reply when the Court asked him to meet the objections but continued to press his point. Thereupon the learned Judge observed that in view, Pf the ground taken in the petition the petitioner had no case. At this stage the appellant Gideon stood up and said "what nonsense is he talking" more than once in a loud tone. This attracted the attention of .the learned Judge who enquired who the appellant was and warned, him to realise what he was saying. The appellant, who was by that time trembling, moved towards the ‑dais but another learned Advocate (Mr. Dost Muhammad Kamil), who was also present in Court, caught hold of him and with the assistance of others took him to the Bar Room. The learned Advocates then returned to the Court Room, apologized to the Court for the conduct of one of the members of the Bar and informed the Court that the appellant was an insane person. The learned Judge then recorded the following order :‑ "While I was hearing Mr. E. A. Thakur Das, Advocate, who was arguing Civil Revision‑No. 187 of 1957, a gentleman sitting in the Court wearing black coat got up and shouted that I had no right to talk nonsense. I asked him to hold his tongue and realize what he was saying. On this the gentleman tried to rush towards the dais in an aggressive mood. Messrs Dost Muhammad, Abdul Latif Malik and Abdul Bari Khan, Advo cates, who were present in the Court, caught hold of him and took him to the bar Room. I learnt from these advocates that the name of the gentleman is G. S. Gideon, Advocate, and that he is an insane person. 7 he Additional Registrar should ask the Superintendent of Police, Peshawar, to ‑look into the matter, and if the person is really of insane mind, he should be kept in an asylum for legal formalities." This order contemplated some action under the Lunacy Act hence the Police obtained statements of some of the learned Advocates who were present in Court at the time of the incident and pro duced the appellant before a Magistrate. The appellant was sent to the Government Mental Hospital, Peshawar, for observation and the Medical Superintendent of the said Hospital submitted the following report on the 13th of June 1961 :‑ "During his observation to‑date he has had two epileptic fits. His behaviour has been normal. In my opinion he is a case of psychomotor epilepsy for which proper investigation by electro‑encepholography and treatment is recommended." Thereafter, on the 27th of September 1961, the learned Judge before whom the incident took place, passed the following order :‑ "While I was hearing arguments addressed by E. A. Thakur Das, Advocate, for the petitioner in Civil Revision No. 187 of 1957 `Fazal son of Saleh Muhammad v. Mangal etc. at Peshawar on the 18th of May 1961, Mr. G. S. Gideon shouted that I had no right to talk nonsense. Thereupon, I asked him to hold his tongue and realise what he was saying. On this Mr. Gideon tried to rush towards the dais in an aggressive mood to attack me. Messrs Dost Muhammad Kamil, Abdul Latif Malik and Abdul Bari Khan, Advocates, who were present in Court, caught hold of him and took him away towards the Bar Room. I was told by the members of the Bar that Mr. Gideon is insane. Thereupon, I directed the Additional Registrar to move the Superintendent of Police to take action against Mr. Gideon under the Pakistan Lunacy Act. He was kept in the Mental Hospital under observation and according to the report of the doctor he is not insane. (2) The above conduct of Mr. Gideon, Advocate, was not in keeping with the dignity of the Court and tends to lower and undermine the authority of the Court, and constitutes gross contempt of Court. It is suggested that notice should be issued to him, requiring him to show cause why he should not be committed for contempt and his name removed from the ,tolls of this Court. (Sd.). ABDUL AZIZ KHAN, Judge. (1) Order dated the 18th May 1961, asking the Additional Registrar to move the Superintendent of Police for action under the Lunacy Act. (2) Statements of Messrs Abdul Bari Khan and Dost Muhammad Kamil, Advocates, Peshawar; made to the Police Officer conducting inquiry under the Pakistan Lunacy Act. (3) Superintendent of Police letter, informing the Additional Registrar of the result of observations by the officer in charge of the Mental Hospital, Peshawar." This order was placed before the then Acting Chief Justice Shabir Ahmad, J., who on the 9th of October 1961, called upon the appellant to appear before him personally and show cause as to why he should not be committed for contempt of Court. The appellant appeared before the Court on the 24th of October 1961, and applied for the transfer of the case to Peshawar. He was told by the Chief Justice to appear before Shabir Ahmad, J. on the next day to have his statement recorded and if it was then found necessary the evidence would be taken by the learned Judge; when he went to Peshawar in December. The appellant present ed himself' before the learned Judge and stated that he wanted to produce some witnesses. Upon this the case was fixed for recording of evidence at Peshawar on then 24th of December 1961. As Shabir Ahmad, J. was unable to go to Peshawar in Decem ber, the case was placed before Anwarul Haq, J. who fixed the 20th December 1961, for the recording of evidence. On this day the appellant was represented before him by Dr. Abdur Rahim and the State was represented by Mr. Ghazanfar Ali Shah, Assis tant Advocate‑General. Messrs Dost Muhammad Kamil and Abdul Bari Khan were examined in support of the contempt notice, whilst Malik Abdul Latif, Dr. M. A. Aziz and. Sh. Abdul Majid were examined on behalf of the defence. The appellant in his oral statement, which purported to have been recorded under section X64 of the Criminal Procedure Code, stated: "I felt the fit coming when I was sitting inside the Court Room and discussion was going on between the Judge and Mr. Thakur Das about the drafting of grounds of revision." But beyond this he was unable to remember anything else. Malik Abdul Latif, however, stated that when Mr. Thakur Das did not give any direct reply to the objections raised by him, the learned Judge hearing the revision matter enquired from Mr. Thakur Das as to whether he had drafted the grounds of revision? The latter replied in the negative and pointed to the appellant who was sitting next to him as the author of the grounds of revision. The learned Judge then put the following question: "Mr. Gideon did you draft these grounds in your lucid intervals? " In reply the appellant first said in a. low voice "Your Lordship has no right to insult a gentleman" and then he began to tremble and said in a loud voice: "It is nonsense". This he repeated twice. On hearing this the learned Judge asked him to hold his tongue and to realise what he was saying. At this stage Mr. Dost Muhammad Kamil stood up and said: "Your Lordship our heads hang in shame", but the witness claims that he informed the learned Judge that Mr. Gideon was under a fit of insanity. The appellant was then removed from the Court Room with the assistance of the orderlies and Mr. Dost Muhammad Kamil, as the appellant appeared to be in a violent condition and was trembling. He, however, admitted in cross‑examination that the appellant resisted the attempt to remove him from the Court Room and had at that time also tried to proceed in the opposite direction towards the wall of the Court Room. In view of this evidence of Malik Abdul Latif, the learned Judge had both Mr. Dost Muhammad Kamil and Mr. Abdul Bari Khan recalled for further examination. Mr. Dost Muhammad Kamil was positive that the learned Judge had not put the ques tion mentioned by Malik Abdul Latif nor did he recollect the appellant saying "Your Lordship had no right to insult a gentle man." Mr. Abdul Bari Khan also stated that no such question was addressed by the Judge to Mr. Gideon during his presence in the Court Room, but he did remember Mr. Gideon saying that the Judge should not insult him. In his previous examination also this witness had stated that although the Judge did not address any inquiry to Mr. Gideon directly, Mr. Gideon did say to the Judge "You should not insult me". After hearing this evidence and the arguments Anwarul Haq, J. took the view that although normally "the conduct alleged" against the appellant would constitute gross contempt of Court, but "in the peculiar circumstances of this case" certain questions "of considerable importance and difficulty" arose for consideration, namely :‑ (1) As to whether having regard to the medical evidence as to the mental condition of the appellant he could claim the benefit of section 84 of the Pakistan Penal Code, (2) Whether in view of the evidence of Malik Abdul Latif, which had found some indirect support also from the evidence of Mr. Abdul Bari Khan, the appellant, "who is perhaps of an excitable temperament due to being a victim of psychomotor epilepsy", could be found guilty of having committed contempt of Court, and" (3) Whether the qualified apology given by him in his open ing statement could be accepted in view of the fact that he could not remember as to what he had said or done during the fit of epilepsy from which lie claims to have been suffering at that time. He, therefore, without recording any finding of his own, submitted the case to the Chief Justice for being placed before a larger Bench: The matter then came up before a Division Bench which directed the appellant to appear before it on the 5th of February 1962. The notice was duly served but the appellant did not appear on that date. Hence a fresh notice was issued for his appearance on the 19th of February 1962, but before this notice was served he submitted a petition to the Court expressing his inability to appear at Lahore on the ground that he was a patient of epilepsy and could not travel alone. The notice was, however, served on him on the 14th of February 1962, but he again failed to appear. Hence another notice was issued calling upon him to show cause as to why he should not be committed for contempt for disobeying the processes of the Court and this notice was made returnable on the 5th of March 1962. The appellant again did not appear but submitted two further petitions praying for fixing the case at Peshawar for the same reasons. The last of the said petitions was supported by a certificate from the Medical Superintendent, Mental Hospital, Peshawar, which merely stated that the appellant was not in a condition to travel alone. On the 5th of March 1962, one Safdar, a servant of the appellant, however, appeared in Court and it is said that the Court ascer tained from him that the appellant was "otherwise well and attended to his cases at Court". In the circumstances the Court took the view that his failure to appear "was not due to any incapacity but due to stubbornness and intended to flout the authority of this Court" and decided to proceed with the hearing of the case ex parte. The State was represented before the Division Bench by the Additional Advocate‑General; Lahore, but neither the A. A.‑G., Peshawar, who appeared before Anwarul Haq, J. was before the Court nor were any of the witnesses examined by the latter recalled for fresh: examination, The evidence recorded by Anwarul Huq, J. was perused and it appears that the Additional Advocate 3eneral, Lahore, after consulting the learned Judge, before whom the incident took place, made a statement at the Bar to the effect that the learned Judge had denied having said anything to the appellant Gideon or to have used the words attributed to him by Malik Abdul Latif in his evidence. Upon this material the learned Judges of the Division Bench came to the conclusion that Malik Abdul Latif had deliberately made a false statement, that the Assistant Advocate‑General, Peshawar, had acted wrongly in conceding that the evidence of Malik Abdul Latif found indirect support from the evidence of Mr. Abdul Bari Khan and that the appellant Gideon was clearly guilty of the gravest contempt of Court. So far as the case of the appellant Gideon is concerned we have no hesitation in agreeing with the view taken by the learned Judges of the Division Bench of the High Court that he has been guilty of gross contempt of Court. It is admitted even by Malik Abdul Latif that the appellant did utter twice in a loud voice the words "It is nonsense" and that even after the learned Judge had asked him to hold his tongue and to realize as to what he was saying he was trembling and resisting removal from the Court Room. Even assuming that Abdul Aziz Khan, J. made some observation as to the quality of the draftsmanship of the appel lant or addressed some disparaging remarks about it in the Court Room, we have no manner of doubt in our minds that the appellant 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. Therefore, they clearly constituted a contempt and unless uttered by an insane; person can never be excused. Whilst we are in entire agreement with the view expressed by Mr. 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 language 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 ire the public interest to be respected. There is no evidence in this case that the appellant was insane. All that has been established is that he was a patient of psychomotor epilepsy. The Medical Superintendent of the Mental Hospital, Peshawar, examined on behalf of the defence admitted that the appellant could not be certified as insane, though he opined that during the attack "he cannot be regarded as responsible for his actions, as he is not aware of what he is doing". It is not clear, however, upon the evidence as to whether such a fit actually came upon him, for, in his own statement the appellant merely states that he felt the fit coming when discussion was going on between the learned Judge and Mr. Thakurdas about the grounds of revision. Again, it appears from the evidence even of Malik Abdul Latif that when an attempt was made to remove him from the Court Room he resisted the same and attempted to move in the opposite direction. If the doctor's opinion that a patient suffering from such an epileptic fit "would continue doing whatever he was doing when the attack came on", be correct, then the appellant should have continued to address the Court, but there is no evidence to that effect. Indeed, there is nothing on the record to show that he said anything more after repeating the objectionable words. His resistance to removal from the Court Room seems also to indicate that he was conscious of the fact that he was being removed and, therefore, attempted to resist and to move in a different direction. The finding of the learned Judges of the Division Bench, therefore, that the appellant did not appear to be unaware of what he was doing is not altogether unjustified. In this view of the matter section 84 of the Penal Code could have no manner of application to the case of this appellant. Learned counsel appearing in support of this appeal has also very frankly conceded that if the appellant is not found to be so unsound of mind as to be incapable of knowing what he was doing, then his conduct cannot be defended and has accordingly sought to assail the validity of the proceedings before the Division Bench. He has contended that since the species of contempt alleged in the present ease was a criminal contempt, which had been specifically provided for under section 228 of the Penal Code. it could only be tried in the manner prescribed by the Criminal Procedure Code, under which there was no warrant for a trial in absentia or a conviction in absentia his further complained that the Division Bench had no jurisdiction whatsoever to come to any finding upon the basis of evidence, which was recorded by another Court. The above contentions are based upon the assumption that a criminal contempt is an offence either under the Penal Code or at least under any other "law for the time being in force" in this country and was, therefore, in accordance with the provisions of section 5 of the Code of Criminal Procedure triable in the manner therein provided. This assumption is, in our view unwarranted, for, the jurisdiction of Courts of Record or superior Courts to punish for contempt by the summary process of attachment or committal is a special jurisdiction, which is inherent in all such Courts as an essential concomitant of their power to preserve order in judicial proceedings and to maintain the authority of law. It is unnecessary at this stage to trace the history of this jurisdiction, for, this proposition has now been settled beyond any doubt by a number of decisions of the Privy Council commencing from 1883 in the case of Surendra Nath Bannerji v. The Chief Justice and Judges of the High Court at Fort William in Bengal (101 A171), upto 1945 in Parashuram Detaram v. Emperor (AIR1945PC134). The same view has been maintained by the Supreme Court of India as well in the cases of Bathina Ramkrishna Reddy v. State of Madras (AIR 1952 S C 109) and Sukhdev Singh v. Hon. C. J., S. Teja Singh and Hon. Judges of the Pepsu High Court at Patiala (A I R 1954 S C 186). This jurisdiction was further accepted and confirmed by Article 176 of the late Constitution which gave to the Supreme Court and the High Courts all the powers of a Court of Record including the power to punish for contempt. A similar provision has also been incorporated in Article 123 of our present Con stitution. It is clear, therefore, that this is not a power which is exercised by virtue of any provision of the Penal Code or the Code of Criminal Procedure or `any other law for the time being in force' within the meaning of the term `law' in the Code of Criminal Procedure. The General Clauses Act, 1897, which applies for the interpretation of the said Code gives a meaning to this word `law' which necessarily connotes a written law or a written instrument having the force of law. The power is, therefore, exercised under a special jurisdiction which is by sub section (2) of section 1 of the Code of Criminal Procedure clearly excluded from its purview. So far as the offence under section 228 of the Penal Code is concerned it can hardly be contended that its scope also extends to those contempts which are punishable in the exercise in summary jurisdiction by Courts of Record. This section was, of our view, designed to give to the subordinate Courts also some power to punish intentional insults or interruptions and was not intended for curtailing the power of the superior Courts, for, it is difficult to imagine that the Legislature intended by enacting the said section to restrict the power of the superior Courts to the limits indicated in section 480 of the Code of Criminal Procedure. It is, in this connection, significant that when some difference of opinion arose in he High Courts in British India as to their power to punish for contempts of subordinate Courts in view oft the provisions of sections 175, 178, 179, 180 and 228 of the Penal Code, the Legislature intervened to clarify the position by the enactment of the Contempt of Courts Act, 1926. This Act neither defined a contempt nor created any offence nor conferred any jurisdiction but assuming the existence of the jurisdiction of the High Courts even to punish for contempts of subordinate Courts merely limited the punishment which could be given in respect of such contempts when punished by the High Court itself. This assumption by the Legislature, if anything, confirmed that the High Courts undoubtedly possessed the power not only to punish for contempts of their own Courts but also for contempts of Courts subordinate to them. In this view of the matter the question that next arises is as to what is the procedure that should be followed by a superior Court in the exercise of this special jurisdiction. There is no doubt some observation in Halsbury's Laws of England, Third Edition, Volume 8, page 3, to the effect that "criminal contempt is a misdemeanour punishable on indictment by fine or imprison ment or by order to give security for good behaviour". But it appears that even in England the procedure by indictment fell into disuse long ago and was replaced by the modern practice of applying by notice of motion but in the cases of contempts in faciam curiae, the offender, it appears, may be committed instanter and no notice even is necessary. All that is required is that the con tempt must be distinctly stated and adequate opportunity to answer given. So far as this country is concerned, it has been held by the Federal Court in Abdur Rashid v. The Crown and another ((1954) 2 F C R 277), that for "a proceeding relating to contempt of Court no parti cular procedure is prescribed anywhere under the Procedure Codes. The proceeding is a summary procedure and may be disposed of according to the discretion of the Court in any manner which does not cause prejudice to the defence". In the above‑mentioned case also the evidence was taken at two different stages by two different learned Judges of the Lahore High Court, and &was contended that on this account the committal for contempt had been rendered illegal, but this contention was held to be devoid of any force. In another recent decision of this Court in the case of Saadat Mali v. The State (P L D 1962 S C 457), it was again pointed out that "there was no fixed formula for contempt proceedings and that technical accuracies were not required" nor were the Superior Courts "bound by the provisions of the Code of Criminal Procedure or by the technicalities of ordinary criminal proceedings" but all that was necessary was that the fundamental rules for the ascertainment of truth should be followed and the contemner should be given the fullest oppor tunity of defending himself. This opportunity, was not denied to the appellant Gideon in the present case, for, tie was repeatedly called upon to appear and it was only when lie continued to disregard the notices issued by the Court that it was ultimately decided to hear the matter ex parte. Opportunity, in the fullest measure, was, therefore, afforded to the appellant and it is his own fault that he did not choose to avail of the same. He cannot now be heard to complain on that account. It may also be pointed out here that even under the Criminal Procedure Code there is no specific bar to a Criminal Court acting on the evidence recorded or partly recorded by a predecessor Court. Section 350 of the Criminal Procedure Code permits such a course being adopted. If the accused does not expressly demand the re‑summoning of a witness or a de novo hearing of the matter. If the appellant had appeared before the Division Bench and made such a demand, we have no doubt that he too would have been granted a similar facility. There was nothing illegal, therefore, in the Division Bench proceeding upon the evidence already on the record. We are thus unable to agree that the proceedings before the Division Bench were invalid or that the committal of the appellant has been vitiated by any illegality. The apology tendered by the appellant in his oral statement was, by no means, an unconditional apology and if the Court, which punished him, did not accept it as sufficient, it cannot be said that it acted either unreasonably or perversely. For these reasons the appeal of the appellant Gideon must fail. The learned counsel for the appellant has lastly urged that the punishment imposed is unduly severe. This Court does note as a rule interfere with a legal sentence but since this is not an appeal from a judgment passed in the exercise of the ordinary criminal jurisdiction of the High Court, we think that an exception might legitimately be made in the peculiar circumstances of this case. There is credible evidence to show that the appellant does] suffer from psychomotor epilepsy and, as such, the possibility of the ailment being aggravated or his mental faculties being seriously impaired by detention in prison cannot be altogether overlooked. In these special circumstances we consider that a fine of Rs. 200 or in default a month's simple imprisonment will be sufficient to meet the ends of justice. With this modification of the punishment therefore, Criminal Appeal No. 45 of 1962 is dismissed. We propose next to take up the case of Malik Abdul Latif (Criminal Appeal No. 104 of 1962). This learned Advocate, as already stated, represented the respondent in the revision petition before Abdul Aziz Khan, J. It was upon his objections that the learned Judge had asked Mr. Thakurdas to clarify his case, and according to both the other learned Advocates examined in the contempt proceedings, namely, Mr. Dost Muhammad Kamil and Mr. Abdul Bari Khan, the obser vations that fell from the learned Judge were in support of the objections raised by Malik Abdul Latif. He was thus a person who was directly interested in the proceedings before Abdul Aziz‑Khan J., but unfortunately his statement, was not recorded by the Police in the lunacy proceedings, although in the first order recorded by the learned Judge his name was mentioned as one of the persons who had caught hold of Mr. Gideon and taken him to the Bar Room. He was also not examined as a witness in support of the contempt notice, but he was called as a defence witness and his version was somewhat different from the version given by Messrs Dost Muhammad Kamil and Abdul Bari Khan. According to trim after he had raised his preliminary objec tions the learned Judge enquired from Mr. Thakurdas as to what he had to say in respect thereof, but since Mr. Thakurdas did not give any direct reply, he was asked as to whether he had drafted the grounds of revision. The latter denied having done so and pointed to Mr. Gideon who was sitting next to him. The Judge then, according to Malik Abdul Latif, put the following question "Mr. Gideon did you draft these grounds .in your lucid intervals?" It was in reply to this question that Mr. Gideon first said in a low voice "Your Lordship has no right to insult a gentleman", then began to tremble and said in a loud voice twice "It is nonsense". After this evidence was given Messrs Dost Muhammad Kamil and Abdul Bari Khan were both recalled for further examination Mr. Dost Muhammad Kamil was positive that such a question was never put by the learned Judge and as far as he could recollect Mr. Gideon also never said that the learned Judge had no right to insult a gentleman. Mr. Abdul Bari Khan also corroborated that the learned Judge had not put any question of the kind mentioned by Malik Abdul Latif but he confirmed his earlier evidence that Mr. Gideon on hearing the remarks addressed by the learned Judge to Mr. Thakurdas did say that the learned Judge should not insult him in that way and then added in a loud voice that the learned Judge should not speak nonsense. In this state of the evidence Mr. Ghazanfar Ali Bokhary, Assistant Advocate‑General, who was appearing in support of the contempt notice before Anwarul Haq, J., did not find himself in a position to contend that Malik Abdul Latif should be disbelieved but maintained that even if that evidence be accepted the words uttered by Mr. Gideon constituted a contempt of Court. Anwarul Haq J., of course, did not express any opinion as to the credibility of these witnesses but the learned Judges of the Division Bench not only had "no hesitation in accepting the testimony of Mr. Dost Muhammad Kamil and Mr. Abdul Bari Khan" but also came to the conclusion that "Malik Abdul Latif, Advocate, has deliberately perjured himself." In coming to this conclusion the learned Judges appear to have been influenced also by the fact that in the statements of Mr. Dost Muhammad Kamil and Mr. Abdul Bari Khan recorded by the Police on the very day on which the incident occurred there is no mention of any question being put by Abdul Aziz Khan J. to Mr. Gideon and that in the order recorded on that day the learned Judge himself bad mentioned that he came to know the name of Mr. Gideon only after the incident from the learned Advocates who had taken him to the Bar Room. Having arrived at this conclusion the learned Judges recorded the following order :‑ "In view of our finding that Malik Abdul Latif, Advocate, has deliberately made a false statement, a notice shall issue to him to show cause why he should not be prosecuted for perjury." On behalf of Malik Abdul Latif, however, it is complained that the above order is firstly without jurisdiction, secondly, that it is not in accordance with the provisions of section 476 of the Criminal Procedure Code and, thirdly, that in any event the finding of the learned Judges is not warranted upon the facts of this case. So far as the first ground is concerned, the contention appears to be that section 476 only empowers that Court to hold the enquiry and lodge the complaint before which the offence of perjury is alleged to have been committed. Hence since the evidence in this case was recorded before Anwarul Haq J., the enquiry could only have been made by him Subsection (1) of section 476 no doubt provides that :‑ "476.‑(1) When any Civil, Revenue or Criminal Court is, whether on application made to it in that behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, subsection (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceed ing in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to the Magistrate of the first class having jurisdiction . . . . . . . ." In our view, however, this contention is without any substance, for the proceeding for contempt was in fact heard and determined by the Division Bench, although the evidence had been recorded by Anwarul Haq J. We have already held that the trial before the Division Bench was not on that account vitiated by any illegality. Hence it follows that the trial in part was conducted by the Division Bench and therefore, it was fully competent to make the enquiry contemplated under section 476 of the Criminal Procedure Code. The second contention appears to be that since section 476 contemplates first a preliminary enquiry, then a complaint and a trial on the basis thereof, the learned Judges of the Division Bench should not have recorded a positive finding in the order directing the issue of a notice to show cause as to why the preliminary enquiry should not be held. Such a positive finding had rendered the enquiry really illusory. The finding that is required under section 476 of the Criminal Procedure Code, it is said, should only be to the effect that an offence of this nature "appears to have been committed" and not that it has been committed. It is argued that by coming to such a finding the learned Judges of the Division Bench had really pre judged the guilt of Malik Abdul Latif and condemned him unheard, for, he could, under no circumstances, expect to succeed in getting that finding reversed or modified at the trial before a Magistrate. It is true that section 476 of the Criminal Procedure Code appears to contemplate that a finding is to be recorded only after the preliminary enquiry has been held but for the purpose of deciding as to whether a preliminary enquiry should be made or not all that the Court is required to consider is as to whether any offence of the kind mentioned in clauses (b) and (c) of sub section (1) of section 195 of the Code "appears to have been committed." It was not, therefore, necessary at this stage to use such positive language but we do not think that this defect is sufficient to vitiate the notice altogether, for, the very fact that merely a notice to show cause was issued indicated that it was proposed to hold the preliminary enquiry for the purpose of determining whether any complaint was to be forwarded to a Magistrate or not. The purpose of recording the finding mentioned in section 476 is merely to show that the Court making the complaint has duly applied its mind to the expediency of making such a complaint and, as such, the recording of a positive finding followed by a complaint is merely evidence of the application of the mind of the complaining Court and nothing more. It was not, in our view, a finding determining the guilt of the person sought to be complained against. Coming now to the last contention it is argued that this is not a fit case to which any such enquiry is called for, this was a case of oath against oath. The learned Judges of the Division Bench had, it is further said, omitted to take into consideration that Malik Abdul Latif had no particular reason to give false evidence in this case. He was neither beholden to Mr. Gideon nor had any particular reason to be annoyed with Abdul Aziz Khan J., for, his objections were being upheld by the learned Judge. Malik Abdul Latif, who was actually appearing in the revision matter being heard at the time was, furthermore, more likely to have had a better recollection of what actually transpired than the two other learned Advocates who were not concerned with the said proceedings and were merely present in Court awaiting the turn of their case. In any event, Mr. Abdul Bari Khan had lent some indirect support to the evidence of Malik Abdul Latif, for, if his version is to be believed, some observation might have fallen from the learned Judge which Mr. Gideon misunderstood and thought to be in disparagement of the grounds of revision drawn by him. There is no evidence that Malik Abdul Latif was an irresponsible person or that he was a person who would deliberately perjure himself without any rhyme or reason. Apart from this, the learned Judges of the Division Bench have also omitted to notice that the other two learned Advocates, who gave evidence in this case, are not agreed as to the exact words uttered by Mr. Gideon. According to Mr. Dost Muhammad Kamil he got up and said "what nonsense is he talking", but according to Mr. Abdul Bari Khan the words uttered were "you should not insult me in this way and you should not speak nonsense." In view of these different versions given by Mr. Dost Mohammad Kamil and Mr. Abdul Bari Khan, a legitimate inference could perhaps be made that as they were not directly interested in the matter being argued, they were not paying very close attention and it is quite possible that they may have missed something which was said by the learned Judge himself. The learned Judges of the Division Bench resolved this question by referring to the order dictated by the learned Judge on that very day, to the statements of the other two learned Advocates recorded by the Police in the lunacy proceedings and a statement made from the Bar by the learned Additional Advocate‑General, although none of these was strictly admissible. Neither Mr. Dost Muhammad Kamil nor Mr. Abdul Bari Khan had been shown their earlier statements nor had any Police Officer been called to prove that he recorded those statements. These statements had not, therefore, been brought on the record of the contempt proceedings. Again, so far as the order of the learned Judge was concerned, although the order itself could have been referred to as a public document but that could not prove the correctness of its contents in a prosecution for perjury. The statement from the Bar was no evidence at all. If these are excluded from consideration, we are left only with the oral state ments of the two other learned Advocates. In a case of this nature where one man's oath is pitted against the oath of another we are of the view that, before a prosecution for perjury is launch ed, the Court must be fully satisfied that the person whose oath is sought to be preferred is of such an outstanding character that it is impossible to conceive of him giving an incorrect version of that his word is so strongly corroborated that no reasonable person could possibly doubt its correctness. In the present case, as we have endeavoured to show, it is not possible to state with that degree of certainty as to which version is correct, for, indeed there are three different versions. In these circumstances, we are unable to agree with the learned Judges of the Division Bench that Malik Abdul Latif intentionally gave false evidence. We would, therefore, accept this appeal and set aside the order of the High Court. It now remains to consider the appeal of Syed Ghazanfar Ali Bokhary (Criminal Appeal No. 103 of 1962). As already stated he appeared in support of the rule for commitment of Mr Gideon and at the stage of arguments before Anwarul Haq J. he found some difficulty in contending that the evidence of Malik Abdul Latif was false. The learned Judges of the Division Bench before whom he neither appeared nor was called upon to explain the cire umstances in which he came to have made such a con cession in his argument before Anwarul Haq J., nevertheless found him to have been guilty of conduct "unworthy of an A. A.‑G." and to have displayed "lack of ability expected of a responsible law officer of the State." It is now contended on behalf of Mr. Ghazanfar Ali Bokhary that these remarks were wholly unjustified and had caused him great harm. It is unnecessary to discuss in detail the grounds urged in support of the appeal for the expunction of these con demnatory observations in the judgment, for, we have come to the conclusion that these remarks should not have been made without giving the person concerned an opportunity of explaining his con duct. It has already been held by this Court in tile case of Malik Feroz Khan Noon v. The State ((1958) 2 P S C R 1=P L D 1958 S C (Pak.) 333) that offending remarks which are not necessary for the disposal of the case, should not be made in a judgment against persons who are neither parties nor witnesses and certainly not without giving such a person an opportunity of being heard. Syed Ghazanfar Ali Bokhary was a responsible law officer of the Government and very serious reflec tions have been made as to his competence in the judgment in question in total disregard of these principles. He was placed in a difficult position for the main witnesses in this case were all members of his Bar. His hesitancy in calling any of them a liar, was, therefore, understandable, particularly, since it was open to him to legitimately argue that even assuming Abdul Aziz Khan J. used the words attributed to him by Malik Abdul Latif, the conduct of Mr. Gideon clearly amounted to a contempt of Court and the plea of provocation was not available to him. We are unable to appreciate what prevented the learned Judges of the Division bench from sending for him and asking him to explain his position before making these very damaging observa tions. We feel certain that had they done so, the position would have been clarified to the satisfaction of the learned Judges, for, as he has explained before us all that he conceded was that the evidence of Mr. Abdul Bari Khan did not rule out the possibility of the learned Judge having said something which Mr. Gideon in his abnormal state of mind might have mistakenly thought to be insulting. Such an inference was by no means improbable and, as such, we can find nothing in the position taken up by him which called for such strong condemnation. We do not, however, propose to say anything further, for, the ground above‑mentioned is, in our view, sufficient to entitle the appellant to ask for the expunction of these observations. We accordingly allow his appeal and direct that the last paragraph of the judgment of the High Court commencing from the words "We have been sur prised" and ending with the words "responsible law officer of the State", which is by no means an integral part of the judgment itself, should be expunged from the record. The result, therefore, is that Criminal Appeal No. 45 of 1962 is dismissed with the modification of the sentence mentioned earlier, but Criminal Appeals Nos. 103 and 104 of 1962 are allowed. The order directing the issue of a show‑cause notice to Malik Abdul Latif is hereby set aside and the last paragraph of the judgment of the High Court is expunged. A. H. Order accordingly.