P L D 1963 Supreme Court 20 (PLP)

CORNELIUS, C. J.‑This is an unusual petition, in that it is by an Advocate of the High Court of West Pakistan, Mr. R. M. Ashfaq Khan, and seeks expungement from a judgment of that Court, of a passage in which certain words used by him in the presentation of an argument, in an appeal were described as discourteous " by any standard ", so that coupled with " the tone in which they were uttered ", they might have constituted contempt of Court. The Court however expressly refrained from taking action in contempt, but recorded a reproof in mild terms viz., that what the Advocate did " was perhaps not the proper thing to do ". The Advocate protests that he is habitually careful to pre serve by his conduct, the dignity of the Court, and that on this occasion he acted, " in a most respectful manner". He des cribed his conduct in the following words :‑ " When their Lordships dismissed my Letters Patent Appeal, I requested their Lordships to certify the case to be a fit one for appeal to the Supreme Court, and also with an additional request for incorporating tree citation in their judgment ". By " the citation " is meant, the citation of two recent pro nouncements on the law by this Court, viz., the cases of Yousuf Ali v. Muhammad Aslam Zia (P L D 1958 S C (Pak.) 104) and Farid sons Ltd. v. Government of Pakistan ((1962) 1 P S C R 1=P L D 1961 S C 537). It is explained that the Advocate made the request as he was anxious that the fact of the citation should be noted, so that the argument might not be excluded at a further stage e.g., in taking the matter before the Supreme Court, on the ground of non‑presentation in the earlier appeal. The judgment of the High Court shows that this attitude was regarded by the Division Bench as implying that he dared the Court to dismiss his appeal." The conclusions of law in the two reported authorities were summarised in the judgment and it was said that they were of 46 no avail to the appellants because they dealt with entirely different matters ". Mr. R. M. Ashfaq Khan complains that he was threatened by one of the learned Judges (Mr. Justice Shabir Ahmad) with contempt of Court proceedings, and that he had done nothing to justify such a threat, or the disparaging remarks against him made in the judgment. He thought he had " every right to make a submission fearlessly and enthusiastically ", and urged that " if an Advocate is subjected to such threats and humiliation, then he will not be able to perform his duties fearlessly and independently as the traditions of the Bar require him to do ". If the merits of the decision in the, appeal by the Division Bench had been under examination, we should have been in a better position to judge the basis upon which the Division Bench got the impression that Mr. R. M. Ashfaq Khan was " daring the Court to dismiss the appeal ". The treatment in the judgment of the two Supreme Court decisions he had cited is of a summary character, and does not enable any inference as to the extent to which he had pressed that the view which the Division Bench was favouring was in conflict with binding authorities of a Superior Court. But it is necessary to observe that his challenge ", supposing it was held out, could not have been founded on any personal power or authority vested in himself. It is inconceivable that he should have based his opposition to the view which the Division Bench was taking on any foundation except that of law, in this case the law propounded by the Supreme Court. Therefore, it may be a question whether, in substance, his contention was, or was intended to be, a challenge, but the impression that it was, is based on the whole of his conduct, including the tone of voice used by him, which is mentioned in the judgment. Mr. R. M. Ashfaq Khan complains that by refraining from proceeding against him in contempt, the Division Bench did him no favour, for he has been denied an opportunity of meeting the totality of the charge, including such imponder ables as tone of voice. He might have shown that in rejecting the two binding authorities of the Supreme Court for irrelevancy, the Division Bench had done less than justice to his case, and to his submissions. But as the matter stands, the stricture‑for such it undoubtedly is‑rests upon the personal observation and impression of the Division Bench, and in particular of Mr. Justice Shabir' Ahmad who wrote the judgment, with which the other learned Judge agreed. The possibility of judicial review is excluded. The observations are not outside the scope of the proceeding before the Division Bench. No final proceeding was commenced, and at the end, only a mild admonition was administered, which did not in law require a notice to show cause, by way of due process. We cannot see that there is any scope for inter ference by this Court. At the same time, we cannot avoid the observation that an Advocate, as an important member of the human machinery by which justice is dispensed, has a right as well as a duty to place his client's case before the Court, with the maximum of emphasis. He is fully within his rights in pressing before a subordinate Court, the pronouncements on similar questions by superior Courts, using the appropriate degree of emphasis, the highest being reserved for the Court at the apex of the judicial machinery, whose pronouncements on law are declared by the Constitution, to be binding on all other Courts in the country. It is regrettable that, on this occasion, an Advocate's reliance on two such pronouncements should have been expressed, before the High Court, in a manner which gave rise to the impression we have mentioned. In evaluating his conduct, however, greater weight might appropriately have been given to the consideration that he was pressing a cause which was not his own, and that he could be excused for overdoing his part, in that he adopted a certain tone of voice. A judgment of a superior Court is a permanent arid public, document, and in this case, the Division Bench has approved the judgment for publication. Mr. R.M. Ashfaq Khan com plains of the injury, and we can well understand that it might have been avoided, if before recording these remarks, the learned Judges of the Division Bench had given him an opportunity, in Court or in Chamber, to explain what he meant by the words or the tone he had employed. But, as we have already said, we cannot see that we have power to give Mr. R.M. Ashfaq Khan the relief he seeks, that is, expungement of the observations made concerning him, in the circumstances of this case. A. H. Petition dismissed.