P L D 1972 Supreme Court 109 (PLP)

Thereafter the respondent made a further statement in writing by way of explanation of his earlier statement. His second state ment reads thus :- "I wish to clarify the statement made this morning before the Supreme Court. In that statement, I have said that I withdraw the offensive language contained in the letter. This clearly includes the withdrawal of all allegations made therein against the Chief Justice and the Supreme Court." The letter of the respondent to the President of Pakistan dated the 2nd June 1971, which forms the foundation of these proceed ings is reproduced below in order to see if the contents thereof constitute contempt of Court or not

"I write this with reference to my letter of 2nd February 1970 wherein I had submitted that Mr. Justice Muhammad Iqbal had won over Mr. Justice Hamoodur Rahman, the Chief Justice of Pakistan, and that the Supreme Judicial Council, for that reason, could not be the proper body to report upon the corruption of Mr. Justice Muhammad Iqbal, and to enclose herewith a copy of the judgment written by Mr. Justice Hamoodur Rahman in Cr. Review Nos. 8 and 9 of 1970, decided on the 27th April 1971. It will be recalled that I wrote to you on the 13th May 1970 saying that I was aggrieved by the judgment of the Supreme Court of Pakistan dated the 7th May 1970 whereby they had dismissed my appeals and that I had to spend a month in jail and to pay a fine of Rs.3,

000. Further to that ft has to be stated with great regret that the main points which went in my favour were omitted from the judgment; and in order to prevent me from filing petition for review, Mr. Justice Muhammad Iqbal had deputed Mr. G. M. Mirza, Senior Advocate, who kept the relevant papers with him until the moment he thought that it would not be possible for me to do the job at all as I would be taken to jail. However, they were not successful and because of the loyalty of my staff I was able to tile a review petition before I left for the jail. On that the Chief Justice raised an objection that I should have filed two review petitions and not one, although there was only one judgment and the Registrar had certified that one review was competent. After that Mr. Justice Hamoodur Aahman left for Dacca and when two review petitions were filed they went before the Senior Judge, Mr. Justice Muhammad Yaqub Ali Khan, and he did not deal with the stay application himself but referred that to Mr. Justice Sajjad Ahmad Jan who rejected it. It may be mentioned here that the apology in Cr. Original No. 204 had been accepted by the High Court because in that case notice had been issued by Mr. Justice Sajjad Ahmad Jan himself and the matter was dropped in order to prevent him getting any publicity in the country and in order to take revenge conviction was entered against me in the two cases initiated by Mr. Jamil Asghar, Judge. The review petitions were heard after about a year and when they have been heard, Mr. Justice Hamoodur Rahman in his judgment has evaded all the four points which got in my favour. I have for that reason filed a Miscellaneous application in the Supreme Court requesting their Lordships to correct the factual position before the judgment is sent out for reporting. Needless to add that Mr. Justice Hamoodur Rahman has wilfully stated facts falsely in the judgment because he has no proper answer to my questions. The original judgment was announced on the 7th May 1970 after Mr. Justice Hamoodur Rahman had knowledge of my letter of 2nd February to your address referred to above. It was incumbent on Mr. Justice Hamoodur Rahman to decline to deal with the matter, after a complaint had been lodged by me against him, in the interest of justice and fairplay. But instead he used offensive and harsh language in the judgment in order to take revenge. It is now well known that he is a puppet in the hands of Mr. Justice Muhammad Iqbal. The fate of this country is not known if he succeeds in saving Mr. Justice Muhammad Iqbal from disciplinary action even now. I make it clear that once Justice Iqbal is made the Chief Justice of the High Court, the entire judiciary will go to dogs. I therefore, request you to depute an independent Commission to look into the matter. A copy of the Miscellaneous application filed by me on the 15th May 1971 is enclosed. All the facts including the perfidious part played by Mr. G. M. Mirza, Senior Advocate, have been stated therein." In order to appreciate this letter, it is necessary to state some facts which are matter of record. The respondent was earlier prosecuted by the former High Court of West Pakistan, Lahore for contempt of Court. Two separate cases of contempt of Court, namely, Criminal Original No. 150 of 1968 and Criminal Original No. 205 of 1968 were started against him. In both these cases, he was convicted and sentenced by the High Court. He preferred Criminal Appeals Nos. 2 and 3 of 1969 in this Court against his convictions and sentences in the said two cases. A Bench of this Court consisting of the learned Chief Justice and my learned brothers Muhammad Yaqub Ali and Sajjad Ahmad, JJ., by their judgment, dated the 7th May 1970, dismissed both the appeals and upheld the convictions and sentences of the appellant, and this judgment was reported in P L D 1970 S C

350. Thereafter, the appellant filed Criminal Review Petitions Nos. 8 and 9 of 1970 for reviewing this Court's judgment dismissing his Criminal Appeals Nos. 2 and 3 of 1969. The review petitions of the respondent were also dismissed on the 27th April 1971 by the same Bench by which his criminal appeals had been dismissed, vide the judgment reported in P L D 1971 S C

508. The judgments in the criminal appeals and the criminal review petitions, it may be pointed out, had been written by the learned Chief Justice. The respondent's letter to the President should be considered in the background of the above facts. The letter reproduced above, on the face of it contains offensive allegations and reflections which, in their very nature, are wanton, reckless and wild and were deliberately made to scandalize some of the Judges of this Court and the learned Chief Justice in particular. In this letter, the integrity and impartiality of the learned Chief Justice and those of the other learned Judges who dismissed the respondent's criminal appeals and review petitions were directly attacked. The letter, read as a whole, shows that the respondent's convictions in the two contempt cases having been maintained by the judgment of this Court and his two criminal review petitions having been dismissed, he was out to wreck vengeance by directly attacking the integrity and impartiality of the learned Judges concerned. The attack on the integrity and impartiality of the learned Chief Justice was more pointed and direct. The reason for this is not far to seek. Having lost all his cases, his passion to bring the learned Chief Justice in particular to disrepute, disrespect, hatred and contempt was all the more aroused apparently for the reason that the judgments of dismissal were all written by the learned Chief Justice himself. All the allegations made in the respon dent's letter to the President concerning the Judges are patently untrue. Having regard to the background of the respondent's letter, it is manifest that the allegations made therein are maliciously false and were deliberately made with no purpose other than to scandalize the learned Chief Justice and the other learned Judges of this Court and thereby to bring them to disrepute, disrespect, hatred and contempt. The respondent has at last withdrawn all the allegations, admitting them to be false. This shows that he made the allegations deliberately with full knowledge of their falsity this reinforces the conclusion that the obvious purpose of making the allegations attacking the integrity and impartiality of the learned Chief Justice and the other learned Judges was to scandalize them. These maliciously false allegations, besides scandalizing the learned Judges, clearly tended to undermine the public confidence in this Court and bring the Court into disrespect and disrepute and further tended to lower and bring into contempt the dignity and authority of this Court and thereby interfered with the due course of administration of justice. Accordingly, the contents of the respondent's letter clearly constitute gross contempt of Court and falls within the mischief of Article 123 of the 1962-Constitu tion. In the course of his verbal submissions, the respondent also raised some points regarding the legality of the contempt proceed ings against him. His first contention is that the information, which was the basis of the issue of the contempt notice on him, was not laid in this Court by or under the authority of the President. In other words, the information laid in the Court not having been signed by the President himself, could not, in the opinion of the respondent, be the basis for drawing up the contempt proceedings against him. Article 31 of the 1962 Constitution, read with rule 6 of the Rules of Business including its Schedule, as pointed out by the learned Attorney-General, is a complete answer to the respondent's contention. Article 31 lays down that the executive authority of the Republic shall vest in the President and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution and the law. Under rule 6 of the Rules of Business and its Schedule, certain officers named in the Schedule are empowered to execute and authenticate orders and other instruments for and on behalf of the President. The Secretary of a Department of the Central Government is one of the officers so empowered. In this case, the Central Law Secretary, in his letter to the Attorney-General for Pakistan, conveyed the President's approval for lodging the information in this Court and in the Supreme Judicial Council against the respondent. In the face of this letter by the Central Law Secretary, it can hardly be argued that the information was not validly laid in this Court. The next contention of the respondent is that his letter to the President did not receive any publication and, for that reason, the contents thereof cannot constitute contempt of Court. He cited the case of State v. Abdul Latif (P L D 1961 Lab. 51). The plea as to publication was examined by this Court in the respondent's own earlier Criminal Appeals Nos. 2 and 3 of 1969, and the case of State v. Abdul Latif was considered there. In those appeals, it was held by this Court that in order to constitute contempt the publication of the offending material is not necessary. However, the offending letter of the respondent received publication when it was seen not only by the President but also by the Central Law Secretary and perhaps by other officers of the Law Department in the due course of official business. The respondent's last contention is that the information sent by him to the President about the Judges through his letter, dated the 2nd June 1971 is permitted under clause (5) of Article 128 of the 1962-Constitution and is therefore unexception able. This requires an interpretation of clause (5) of Article 128, which reads thus:

"(5) If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court

(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity ; or (b) may have been guilty of gross misconduct, the President shall direct the Council to inquire into the matter." Under this clause, the President may receive information about a Judge of a High Court or the Supreme Court from any source, besides the Supreme Judicial Council. This, no doubt, implies that any one in the know of things may give information to the President about a Judge. But the information to be given under this clause by any individual, as rightly submitted by the learned Attorney-General, must be in good faith. In support off his contention, the learned Attorney-General read out the following passage from the Report on `Contempt of Court' by the British section of the International Commission of Jurists, published in England in 1959: "Our view is that, while the press should not be free to allege partiality or corruption on the part of a Judge, it should not be prevented by the law of contempt from criticising his competence. Clearly if someone wishes, in good faith, to make a charge of partiality or corruption against a Judge he ought to have the opportunity of making it ; but we do not consider the press to be the appropriate organ for this purpose. We consider that he should be able to do so by letter to the Lord Chancellor or to his Member of Parliament without fear of punishment, and would deplore the use of the law of contempt to prevent him from doing so. The charges could then be considered either administratively or in the House of Commons or the House of Lords." The soundness of the contention of the learned Attorney General is obvious. If it were not so, then, any one may make any reckless, vile or false allegation against any Judge at any time with impunity and thereby may succeed in rendering the administration of justice a farce. This, however, could not be the intention of the framers of the Constitution. The respondent, as stated earlier, has withdrawn all the allegations in his letter to the President, admitting them to be false. When these allegations are false to his own knowledge, clause (5) of Article 128 is wholly inapplicable to this case and, as such, he cannot take shelter under that clause. It has been already found that the respondent's allegations about the learned Judges are maliciously false and these were intended to scandalize them. This being so, the question of the respondent's letter being protected under clause (5) of Article 128, does not arise at all. The respondent submits that he sent the letter to the President under clause (5) of Article 128 with a view to securing amendment of the Constitution providing for second and third reviews against the Court's decisions. This is a baseless conten tion. No one can seek any amendment of the Constitution by having recourse to Article 128 thereof. In the offending letter, the respondent did not, in fact, ask for any amendment of the Constitution; rather he made a prayer 'to depute an independent Commission to look into the matter'. Thus he wanted to by-pass the Supreme Judicial Council to which body alone Article 128 relates and prayed for deputing another Commission to enquire into the matter. This clearly means that the respon dent never intended his letter to be one under clause (5) of Article

128. It then remains to be considered as to what is the effect of the respondent's withdrawing all the allegations made in the offending letter and the unqualified apology tendered by him. An apology does not render the contempt committed excusable, nor does it entitle the contemner to a discharge, as of right. An apology is only an extenuating circumstance in mitigation of the sentence, provided it is unqualified and is tendered with an earnest F desire to make amends for the wrong done. There may, however, be cases where, having regard to the circumstances thereof, an unqualified apology of a sincerely repentant contemner may by itself be taken to be a sufficient amend for which no punishment might be considered necessary or lesser punishment might be considered adequate. In the present case, the respondent deliberately committed a gross contempt for which his apology in writing cannot be considered to be a sufficient amend for excusing him altogether, although he tendered the apology unconditionally and withdrew all the allegations without any reservation. Having heard the respondent personally, there is, however, reason to believe that he was ill-advised to send so offensive a letter to the President. In the circumstance and having regard to his unqualified apology, I am prepared to deal with the question of sentence leniently. I would, therefore, sentence him to simple imprison ment for two months and to pay a fine of Rs. 1,000 or, in default, to suffer simple imprisonment for 15 days. I would also severely warn him not to indulge in future in any contemptuous acts which might scandalize Judges of the superior or subordinate Courts or undermine the judiciary. HAMOODUR RAHMAN, C. J.-I agree. SAJJAD AHMAD, J.-I agree. WAHEEDUDDIN AHMAD, J.-I agree. SALAHUDDIN AHMED, J.-I agree. K.B.A. Order accordingly.