P L D 1972 Supreme Court 39 (PLP)

The direct evidence of P. Ws. 2, 3, 4 and 6 clearly supports the charge levelled against the appellant. P. W. 3 Sh. Nasim Hasan stated; "I was present in the court-room of Mr. Justice Nazeer Ahmad Mahmood on 4-8-1967. 1 was present in this court room in connection with an urgent matter which was fixed before this Court for that day. The Court took up habeas corpus petition. I was present in the court-room when the Judge announced the order directing Mst. Mukhtaran Bibi, the alleged detenu in the case to accompany her husband and remain with him till the next date to which the case was adjourn ed . . . . . . . . Mst. Mukhtaran Bibi expressed her un willingness to accompany her husband when the Judge announc ed the order. The Judge told the girl that she should accom pany her husband and that no harm would be done to her. At that stage the respondent moved forward and addressing the Court said that Judge had no jurisdiction to make the order that he had announced and that there were limitations on his power. The respondent said that the order of the Judge was illegal and wrong. The respondent addressed in insolent tone and I was shocked to find that after the announcement of the order, the respondent should criticise the order of the Judge and in such tones." In cross-examination, this witness stated; "At the time that the respondent (appellant herein) was addressing the Court, his voice was the loudest and the loudest of voices in which a lawyer has ever addressed the Court." P. W. 2 Akbar Sultan deposed as follows; "I was present in the court-room on the 4th of August 1967 when the respondent interfered with the proceedings of this Court. The respondent addressed the Court in a very objection able manner. His tone was very much offensive. The respondent criticised the order of the Judge in an offensive manner and despite being told by the Judge to leave the court-room he did not, in the first instance, obey that order and eventually when he did leave the court-room he remained criticising the order of the Judge, and even after he had left the court-room the respondent advised the mother of the alleged detenu, the girl, that they should forcibly take away the girl and ignore the order of the Court as the order was wrong." P. W. 4 Ch. Muhammad Abdullah Cheema, a retired District Judge and Advocate said that on the 4th August 1967, he came to see the Registrar of the Court at about 1 o'clock and saw some people collected in the compound of the Court. He then saw the respondent standing near the banyan tree and exchanging hot words with an orderly of the Court. He heard the respondent saying to some people present there to take the girl away. He further stated; "The order of the Court is wrong and I shall be responsible for the consequences." Lastly, P. W. 6 Mardan Ali, the orderly stated. "As I also left the court-room and as I was going towards the water tap I heard respondent talking loudly. At that time the respondent was near the tap and was advising a per son wearing a dhoti to take away the girl forcibly as the order of the Judge was wrong, I told the person whom the respondent was telling to take away the girl that if he acted upon the advice of the respondent he would land himself in trouble." The direct evidence of these witnesses leads to the inevitable conclusion that the appellant, by his act and conduct in the open Court and outside the court-room, interfered with and obstructed the due course of administration of justice and undermined the dignity and authority of the Court in public. The learned Judge was, therefore, right in holding that these constituted gross con tempt of Court on the part of the appellant. Mr. Rashid Murtaza Qureshi submits that the evidence of P. W. 5 Mr. Anwar Shariq being in regard to the bad character of the appellant was inadmissible and that his evidence influenced the finding of the learned Judge. This witness deposed about the appellant's alleged misbehaviour to some of the local Magistrates in the past. He was not really deposing about the character of the appellant ; he mainly stated that in the past the appellant had filed criminal complaints against a number of Magistrates and that he himself received complaints in writing against the appellant for his alleged misbehaviour and rudeness, However, even if the evidence of P. W. 5 Mr. Anwar Shariq is excluded from consideration, there was the direct evidence of so many witnesses and the appellant's own admissions in support of the learned Judge's conclusion that he had interfered with and obstructed the course of justice and thereby committed contempt of Court. Even in his memorandum of appeal filed in this Court, the appellant admitted that he had told the Darned Judge that there are limitations on his powers under section 491 of the Code of Criminal Procedure and that his order directing the detenu to go with the husband was without jurisdiction. He further admitted that he bad told the mother of the girl outside the court-room that the girl was not bound to go with the husband and that she could not be forced to do so. Thus, there is no escape from the conclusion that the act and conduct of the appellant, as proved by the evidence on record, clearly fell within the mischief of Article 123 of the 1962-Constitution and therefore amounted to contempt of Court on his part. Referring to the evidence of P. W. 3 Sh. Nasim Hasan, the learned counsel submits that there was some murmuring in the court-room about the legality of the procedure adopted by the learned Judge and that the appellant in such a situation stood up to challenge the legality of the order of the learned Judge directing the girl to accompany her husband. It is true that, according to the state ment of P. W. Sh. Nasim Hasan, there was some murmuring in the court-room, but the appellant was hardly justified on that score to protest in the loudest voice and in insolent tone against the learn ed Judge's order and to call it illegal and without jurisdiction. The appellant was not entitled to practise in the High Court, nor was he engaged in the habeas corpus petition by either side. He was thus an absolute stranger to the habeas corpus petition. His intervention in the proceedings of the Court was, therefore, all the more unwarranted and offensive. Learned counsel then raised certain objections on the legal plane. The first of these objections is that under the Islamic Law every person has a right to criticise the judicial and other acts of the Qazi and there is no provision in that law for punishing the critic for contempt of the Qazi or his authority. It is submitted that no codified law of contempt can be inconsistent with the Principles of Policy concerning Islam as contained in Principle of Policy No. 1 in Chapter 2 of the 1962 Constitution. The Principle of Policy No. 1 in the said Chapter 2 runs thus; "No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah. " The law of contempt as contained in Article 123 of the 1962 Constitution, according to the learned counsel, is repugnant to the Islamic Law and has therefore no validity. This contention has no force whatever. Clause (2) of Article 8 of the Constitu tion, which finds place in the very Chapter 2 relating to the Principles of Policy, is a complete answer to this contention. The said clause (2) runs thus; "The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such a ground." Besides, Article 4 of the Constitution is also against the contention of the learned counsel. This Article runs thus; "Obedience to the law is the basic obligation of every citizen, wherever he may be, and of every other person for the time being within Pakistan." Now, Article 123 of the 1962-Constitution which lays down the law of contempt is bound to be obeyed by every citizen and every person residing within Pakistan. The contention of the learned counsel as to the alleged invalidity of the law of contempt as codified in Article 123 is therefore clearly fallacious. Even under the Islamic Law, one is to obey all persons in authority who necessarily include the Qazi. This is enjoined in the Holy Quran as is evident from the following Ayats; "(Goddoth command you to render back your trusts to those to whom they are due; and when ye judge between man and man, that ye judge with justice; verily how excellent is the teaching which He giveth you ; For God is He who heareth and seeth all things. O ye who believe ; Obey God, and obey the Apostle, and those charged with authority among you. If ye differ in anything among yourselves, refer it to God and His Apostle, if ye do believe in God and the Last Day ; that is best, and most suitable for final determina tion)." It is next contended that judicial acts are not above criticism and that the interim order of the learned Judge in the habeas corpus petition was manifestly without jurisdiction and, as such, it was the duty of every one present in the Court to point it out to the learned Judge. The appellant, it is submitted, merely performed his duty in pointing out that the order was illegal and without jurisdiction and, for that reason, he could not be said to have committed any contempt of Court. In support of this contention, he has cited the decisions of the Privy Council in the matter of a special reference from the Bahama Island ((1893) A C 138), and McLeod v. St. Aubyn ((1899) A C 549). He also cited a decision of this Court in Ikram Ullah v. State (1969 S C M R 369). The yet another case cited by him in support of his contention is The King v. Nicholis ((1911-12) 12 C R 280), decided by the High Court of Australia. None of these cited cases appears to be relevant here. The facts of the cited cases are quite different from the facts of the present case. At any rate, it has not been held in any of these cases that the statements concerning a Judge which are calculated to obstruct or interfere with the course of justice, as in the present case, do not constitute a contempt of Court. It is true that judicial acts of Judges are not above criticism. The members of the public may, in good faith, criticise judicial acts. This is their ordinary right of criticism. But this right must be genuinely exercised and not in pursuance of improper motive or malice or in an attempt to impair or impede the course of administration of justice. It is in the exercise of this ordinary right of criticism in good faith that the judgments of Courts are often commented upon in law journals and before higher Courts in appeal or revision. In this regard, the following observation of Lord Atkin in Andre Paul Terence Ambard v. The Attorney-General of .Trinidad and Tobago (AIR 1936 P C 141), is apt here; "But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises to the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path or criticism is a public way; the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune." In this case, the appellant not only challenged the validity of the Court's order in the loudest voice and in an insolent manner on the face of the learned Judge but also incited its disobedience. It is apparent that he did not genuinely exercise the ordinary right of criticism in good faith and is not, therefore, protected. The next point urged by the learned counsel is that the learned Judge himself should not have heard the contempt matter on the principle that the same person should not be both the Prosecutor and the Judge. It is well settled that the same person should not be the Prosecutor and the Judge in any action It is also well settled that a Judge should not hear any matter in which he has personal interest in the decision on it. A proceeding for contempt of Court is, however, an exception to this general rule. This was the view of a Full Bench of the Lahore High Court in K. L. Gauba's case (A I R 1942 Lah. 105). A number of decisions of some other Nigh Courts were cited in support of the view of the Full Bench. There is yet another decision of a Full Bench of the Lahore High Court in the case of Sham Lal (A I R 1932 Lah. 502), supporting the same view. In that ease, it was held that when a contempt is committed in the face of a Court, it is that Court which is the proper tribunal to decide the whole matter. The learned counsel cited the case of Sukhdev Singh v. Teja Singh (AIR 1954 S C 186), in support of his contention that the Judge who complains of a contempt should not hear the complaint. It was not held in the cited case that a Judge involved in the contempt must not as a rule hear the contempt matter and decide it. A desire was only expressed in that case that on general principles of justice, a Judge before whom the contempt has been committed should not, as far as possible, hear the contempt matter, but it was, at the same time, stated that there may be cases where it is more convenient and proper for the Judge to deal with the matter himself, as for example, in a contempt in 'facie curiae'. In the present case the contempt having been committed on the face of the learned Judge, he was both competent and appropriate authority to deal with the contempt matter. The same person being both the Prosecutor and the Judge is not wholly unknown in our legal system. For example, the offence committed under section 228 of the Pakistan Penal Code, in view of the provisions of section 480 of the Code of Criminal Procedure, may be tried and the offender punished by the Judge within whose view the offence was committed. The next contention of the learned counsel is that rules not having been framed under Article 123 of the Constitution, the power to punish under that Article is not available. I do not find any substance in this contention either. Clause (2) of Article 123 empowers a High Court and the Supreme Court too publish any person who is found guilty of any of the offensive acts mentioned in sub-clauses (a) to (d) of that clause. The exercise of this power to punish for contempt is absolute and unqualified and is not dependent upon the rules which the Court concerned is authorised to make. Clause (3) of Article 123 which contains a reference to rules runs thus; "The exercise of the power conferred on a Court by this Article may be regulated by law and subject to law, by rules made by the Court." This clause is an enabling provision and cannot be taken to have overridden the power to punish under clause (2). In the instant case, the punishment that can be imposed by the High Court is regulated by the Contempt of Courts Act, 1916 and the provisions of that Act were observed in imposing the sentence on the appellant. The mere fact that rules for regulating the exercise of the power to punish for contempt have not yet been made, does not mean that the very power to punish has become nugatory. The learned counsel lastly contends that the appellant is an inexperienced and immature young man and that having been mov ed by the protests and remonstration of the girl within the court room when her husband attempted to take her away, he called in question the legality of the order of the learned Judge in the belief that he was acting in aid of justice. It is further contended that he had no motive or self-interest in raising the voice of protest within the court-room. At any rate, the appellant, according to the learned counsel, acted mistakenly and misconceived the extent of his rights in law. It is also pointed out that the appellant had tendered apology in his written statement. Accordingly, the learned counsel submits that the sentence imposed on the appel lant by the High Court is excessive and that, if his conviction is maintained, his sentence should be limited to the imprisonment for 27 days which he has already undergone. The appellant obtained pleadership licence in 1962. He was a pleader of 5 years' standing at the time of the incident. No doubt, he tendered apology at the end of his written statement, but this was not accepted by the learned Judge for which he gave convincing reasons. The appellant tried to justify his action throughout and he claimed even a legal right in his defence, although his actions were calculated to obstruct and interfere with the course of justice. Having pleaded all sorts of justifications, he at last tendered an apology in his written statement which, on the face of it, is not an unqualified apology. It has been held by this Court in .the cases of G. S. Gideon v. State (PLD1963SC1) and Advocate-General v. Shabir Ahmad (PLD1963SC610) that if the Court does not accept an apology on the ground that it is not an unqualified and uncondi tional apology, it cannot be said that the refusal is unjustified. That the appellant's apology was not an unqualified one is also evident from the fact that he appeared to have taken pride in his performance in the Court. Even in the memorandum of appeal filed in this Court, the appellant stated: "The task which the appellant undertook could only be regarded as laudable and commended for its courage." No legitimate exception can, therefore, be taken to the learned Judge's refusal to accept the apology. Coming now to the question of sentence, this Court does not as a rule interfere with the legal sentence passed in the exercise of the ordinary criminal jurisdiction of the High Court, but in the case of contempt of Court lenient view with regard to sentence has been taken by this Court in some cases in the peculiar facts and circumstances of those cases. For instance, the sentences were considerably reduced in the eases of G. S. Gideon v. State, Rashid Murtaze Qureshi v. State (P L D 1966 S C 94) and M. H. Khondker v. State (P L D 1966 S C 140). At the time the contempt was committed, the appellant was indeed a junior pleader of only 5 years' standing. Moreover, it appears from his statement that he subsequently surrendered his pleadership licence and was appearing at times in court on a special power of attorney. Thus, it seems that he was not an experienced man in the legal profession. Besides, it appears that his statements in the Court in an abnormal situation created by the girl's protests and the husband's attempt to take her away, were the outbursts of his youthful exuberance. In consideration of these extenuating circumstances, I think it would be sufficient if the sentence of imprisonment for the period already undergone is maintained and so also the fine of Rs. 1,500 imposed on him. I would, therefore, order him to pay a fine of Rs. 1,500 and, in default, to suffer simple imprisonment for one month. HAMOODUR RAHMAN, C. J.-I agree. SAJJAD AHMAD, J.-I agree. SALAHUDDIN AHMED, J.-I agree, K. B. A. Appeal dismissed. Sentence modified.