P L D 1966 Supreme Court 140 (PLP)

CORNELIUS, C. J.-This judgment relates to six criminal appeals filed by Mr. M. Noman, who was a litigant before the High Court at Dacca, and his two counsel in this case, Mr. M. H. Khondkar and Mr. Shafiqur Rahman. Each of the appellants has been convicted in two separate cases for being in contempt of the High Court of East Pakistan by reason firstly, of certain statements made by Mr. Noman in two applications which he presented before a Bench of that High Court, which was hearing his cases which applications were supported by his two counsel, and secondly, for having repeated the same allegations in subsequent petitions for the leave to appeal which were filed in this Court. The Bench which heard the cases of Mr. Noman was composed of the then Chief Justice, Mr. Justice Imam Hossain Chowdhury and Mr. Justice M. R. Khan. Mr. Noman bad filed two writ petitions respecting action taken against him by the Dacca Improvement Trust by which he was employed as Chief Engineer. In the first instance, he was suspended from his appointment, and against this he moved a writ on the 14th October 1963, when the High Court was on vacation. On the 23rd October 1963, a learned Vacation Judge granted stay of the suspension till the re-opening of the Court after the summer vacation. When the Court re-opened on the 11th November 1963, the case came up before the above mentioned Bench. The application for stay of the order of suspension was heard on the 12th November and the Bench dictated an order of rejection which was, however, not signed. In the meantime, the Dacca Improvement Trust (D. I. T.) had started a departmental enquiry against Mr. Noman and on the 11th November' 1963, he had ready, for moving, a writ for quashment of the order for enquiry. This too was mentioned on the 12th November 1963, but was heard on the 13th, 14th and 15th November 1963, when a rule was issued. The ground for grant of the rule was that there was no departmental rule applicable to the case of Mr. Noman and this being thought valid in relation to the earlier writ as well, in that case also the Division Bench issued a rule, but in each case stay was refused. Thereupon, Mr. Noman prepared to move the Supreme Court for special leave to appeal against the orders of the Division Bench refusing stay, and at the same time applied to the Division Bench for a temporary order of stay to enable him to move the Supreme Court accordingly. This application was made on the 25th November 1963. It was finally rejected on the 19th December 1963. On the following day, the 20th December 1963, Mr. Noman moved an application in the High Court before the same Bench, for action to be taken against the D. I. T., its Chairman, Mr. Abul Ehsan, and its Secretary, Mr. F. Ahmad on the ground that these three persons were in contempt of the High Court inasmuch as while on the one hand they were proceeding with their action against him (Mr. Noman), on the other hand, the D. I. T. had been carrying on a form of dealing with the Chief Justice, i.e., (a) on the 8th November 1963, a plot of land in the Banani residential estate under the control of the D. I. T. had been allotted to him, which he rejected, whereupon it was replaced by another plot of land in a superior residential area known as "Gulshan", on the 15th November 1963, (b) that on the 26th November 1963, the Chairman of the D. I. T. had been seen by Mr. Noman accompanying the Chief Justice towards the Gulshan residential area, and enquiry showed that this was for the purpose of selecting a plot of land to the Chief Justice's satisfaction, (c) that the land allotted to the Chief Justice on the 15th November 1963, bad previously been allotted to another person, whose allotment was cancelled in order that the land should be given to the Chief Justice, and on the basis of these allegations, the following contentions were raised:- (1) The Chairman had with an ulterior motive "interfered with the administration of justice and has thereby put the highest judiciary into disrepute", and (2) Mr. Noman had "bona fide become apprehensive that he will not get fair justice, if his aforesaid cases are heard by their Lordships, the Chief Justice, Mr. Justice Imam Hosain Chowdhury and Mr. Justice M. R. Khan". At the same time as this application was moved on the 20th December 1963, Mr. Noman had ready an application seeking transfer of the case to another Bench, in which further allegations were made, namely: (1) that the D. I. T. had re-allotted to Mr. Justice M. R. Khan, some three or four months earlier a plot of land earlier allotted to him, which allotment had been cancelled for non-compliance with the terms of the allotment; and (2) that D. I. T. had acquired some land belonging to the Chief Justice in Dacca proper for which the Chief Justice had been awarded compensation at an "abnormally high rate". This application for transfer to some other Bench of the High Court for disposal was not moved until the 3rd of January 1964. Both applications were heard together and were rejected on the 10th January 1964, the order being read by Mr. Justice M. R. Khan, which the following explanations were given in regard to the dealings of the Chief Justice with the D. I. T. It was said that in respect of the allegation that Mr. Ehsan had allotted one plot of land at Banani and then another plot at Gulshan to the Chief Justice during the pendency of the two writ petitions, that these appeared to be "frivolous and vexatious outpourings of a disgruntled man", the fact being that Mr. Noman "has manifold grievances against the Chairman" concerning official matters. On the point of fact, it was said that the Chief Justice's. land in Dacca proper had been requisitioned in March 1963, for the use of the D. I. T. and sometime before the commencement of the long vacation of the High Court, the Chief Justice had asked the D. I. T. to allot him a residential plot in lieu of his land. In reply, on the 8th November 1963, the D. I. T. had offered the` Chief Justice a plot in the Banani estate, which he refused t to accept and then the D. I. T. offered him an alternative plot in the Gulshan estate on the 15th November 1963. (This was in fact not the final step in the process by which land was ultimately allotted to the Chief Justice). Further the learned Judge emphasised that the act of allotment was an act of the D. I. T. which was a corporate body of which the Chairman was the Chief Executive Officer. The allotments therefore were acts of the D. I. T. and in accompanying the Chief Justice to Gulshan estate for selection of a plot, the Chairman did no more than to show the Chief Justice a courtesy appropriate to his position. Although, the allotment letter was issued on the 15th November 1963, yet this was in pursuance of a claim made much earlier before commencement of the vacation of the Court What had been done by the D.

1. T. was done "in its normal course of business, and there is nothing to be fussy about it.". The petition for committing the D. I. T. and its officers for contempt and the transfer petition were therefore rejected, but at the same time the learned Judge observed that Mr. Noman had in his application included "matter scandalising this Court and two of its Judges by ascribing motives to the Judges and attacking their integrity and impartiality" for which they pro posed to take action in accordance with law. Notices were accordingly issued on the 10th January 1964, to Mr. Noman. Mr. M. H. Khondkar and Mr. Shafiqur Rahman to show cause why they should not be committed for contempt of Court and punished. The three persons concerned immediately moved the Supreme Court with petitions for special leave to appeal against the contempt rules in which they repeated much that was contained in their applications to the High Court and on the 11th February 1964, the Division Bench issued rules upon each of them to show cause why they should not be committed for contempt and duly punished for having "scandalized this Court and two of its Judges by ascribing motives to them and attacking their integrity and impartiality" in the petitions to this Court. Affidavits in opposition were filed by each of the three respondents and in these they adhered to the position which they had taken in the contempt application and the transfer application. Mr. Noman repeated that he had a bona fide apprehension that he would not get "fair justice" at the hands of the Division Bench and raised the contention that a person who expressed such an apprehension could not be regarded as committing contempt of Court. The apprehension was based on "admitted facts and acts which are apt to produce such apprehension in the mind of a man." Mr. Khondker denied that the contempt petition and the transfer petition were colourably used for the purpose of scandalising the Division Bench, or of ascribing Motives to them, or, by attacking their integrity and impartiality, to bring the Court and its authority into contempt, disrepute and disrespect. He asserted that Mr. Noman's apprehension was genuine, and further that he genuinely believed that the acts of the opposite-party (i.e., the D. I. T. and its officers) were calculated to bring the highest judiciary into disrepute and to shake public confidence in the processes of justice. Mr. Khondkar contended further by way of personal defence that the notice did not charge contempt of Court against him by giving advice and preparing and filing the applications. Therefore, the rule should be discharged. Similar replies were made by Mr. Shafiqur Rahman. These were replies in respect of the notices of the 10th January 1964. With respect to the notices of the 11th February 1964, it was denied that there had been any distortion of facts or making of false statements, in raising the allegation on which the notices were grounded, and a legal point was also raised that the High Court had no jurisdiction to issue these rules since the matter was within the exclusive jurisdiction of the Supreme Court to determine and deal with. It should be mentioned that on the 20th January 1964, five days after the aforesaid petitions for special leave against the issue of the contempt rules had been dismissed by the Supreme Court, the present appellants moved the Chief Justice to constitute a Special Bench of all the Judges of the High Court to hear the rules. Eventually, however, the Chief Justice constituted a Bench of five Judges including himself and Mr. Justice M. R. Khan to hear the rules. The five learned Judges in separate judgments held the three appellants to be guilty of contempt of the High Court by the contempt petition of the 20th December 1963, and the transfer petition of the 3rd January 1964, as well as by the statements made in of the grounds of their petitions to the Supreme Court for special leave to appeal against the issue of the aforesaid rules. Fines were imposed on each of them by way of punishment. The case is thus one in which a litigant and his lawyers have taken upon themselves the risks attendant on making a direct allegation to a Superior Court of lack of confidence in that Court's capacity to do justice in their case, by reason of personal interest and consequent bias in each of the Judges who constituted the Bench that was hearing the case. At no stage of the case have these persons withdrawn an inch from the positions which they took up in the contempt petition of the 20th December 1963, and the transfer application of the 3rd January 1964. As the Chairman of the Bench was the Chief Justice himself, it was not possible for the plea of bias in bar of the jurisdiction of the Bench to be raised before any other Judge. The seriousness of their position in the eye of law appears to have been re cognised by the appellants fairly clearly from the very start. They have acted throughout in the belief that, having a genuine apprehension that the Bench which was hearing their cases was not qualified to do justice, it was their duty immediately to raise the question, and although by alleging contempt on the part of the D. I. T. and its officers, a certain appearance of deviousness is given to their action, yet it is clear that both in the contempt petition as well as in the transfer petition, they boldly and frankly declared their loss of confidence in the Bench. Mr. Brohi appearing for them before us has contended that it was the duty of his clients to raise this question before the Court, which was seized of the case as soon as they became aware of facts which were sufficient to give rise to a reasonable apprehen sion in their minds. Mr. Noman became aware of certain facts on the 26th November 1963, and following up the discovery by enquiry, he became aware that the Chief Justice, a Member of the Bench, was engaged in negotiations with the opposite-party, namely, the D. I. T. for the acquisition of valuable property. If Mr. Noman had kept that knowledge to himself, and had allowed the case to proceed to a conclusion without raising the question of bias, he would have been estopped from raising the question later. In support of this proposition, reliance was placed upon a decision of the King's Bench Division in the case of The King v. Williams (1) (1914) 1 K B

608. That was a case in which certiorari was sought to quash the order of a Tribunal on the ground of bias. The following observations in the judgments of the three learned Judges who heard the case were particularly relied upon. Mr. Justice Channell said that "Certiorari will not be granted ex debito justitiae, i.e., to an aggrieved party, who fails to aver, before the writ Court, that at the time of the proceedings impugned, he was unaware of the facts on which he relies to impugn them. By failing to do so, a party grieved precludes himself from the right to have the writ ex debito justitiae, and reduces his position to that of one of the public having no particular interest in the matter. To such a one, the granting of the writ is discretionary." . Rowlatt, J., made the following observation:- "It is a very salutary rule that a party aggrieved must either show that he has taken his objection at the hearing below or state on his affidavits that lie had no knowledge of the facts which would enable him to do so." The third learned Judge Atkin, J., said:- "The applicant must show that he has not precluded himself by his conduct from claiming the special relief, he asks for." An allegation of bias is an attack on the impartiality and integrity in the very instrument of justice. By itself, it has all the injurious aspects which are set out with comprehensiveness in the following passage from the rules issued to the appellants in this case, excepting the aspect of direct intention to bring about the consequences detailed:- "made allegations therein scandalising this Court and two of its Judges by ascribing motives to the Judges and attacking their integrity and impartiality so as to create distrust and destroy the confidence of the public in the- Court and to bring the Court into disrepute and disrespect and also to lower and bring into contempt the authority of the Court and thereby to prevent or impede the due course of administration of justice." That is of course a very important fund very heavy conse quence of the making of an allegation of bias, but it must not be allowed to obscure the other aspects, namely, the requirement that in the eye of the litigant himself justice should not only be done, but should also be seen to be done. A litigant submits himself to the processes of justice in a Superior Court in the expectation, to which he is entitled, that he will be given a fair and impartial trial by persons of high knowledge, experience, intelligence and ability, who are totally devoid of any interest in the end-result of the proceedings, and equally of any interest in either of the 'parties and in particular of the opposing litigant. Mr. Noman's reply was on these lines, namely, that he had a genuine apprehension that he would not get fair justice at the hands of the Bench and that to say so was in itself no contempt of Court. Mr. Khondkar and Mr. Shafiqur Rahman as his lawyers both said that they were satisfied that Mr. Noman's apprehension was genuine, and they themselves only acted in furtherance of their primary function of advancing the interests of justice. What gave them cause for concern in the present cases was the discovery that the Chief Justice, who was the Chairman of the Bench was contemporaneously engaged in a course of dealings with the opposing litigant, namely, the D. I. T. of which the final result was the acquisition by himself of valuable landed property. They claimed the right to raise the question of bias on that ground before the Court itself, and the case of The King v. Williams, cited above, was sufficient to indicate to them that if they had not done so, and the cases had gone against Mr. Noman, the latter would probably have -been estopped from raising the point in any subsequent proceedings. There is a strikingly clear and totally honest statement of a litigant's position in these circumstances, to be found in the arguments of the Solicitor-General in the classic case of Dimes v. Junction Canal Company (1) (1852) 10 E R

301. That was a case where a charge of bias was made by Dimes against no less a person than the Lord Chancellor of England, namely, Lord Cottenham, by reason of his having interest of several thousand pounds in shares of the respondent-Company. There had been protracted and complicated litigation between Dimes as lord of a manor and a person described as a copy-holding tenant, who had parted with his right to the Grand Junction Canal Company. During the course of the litigation, a decree had been awarded by the Vice-Chancel lor which came up before the Lord Chancellor for affirmation. Before tie Lord Chancellor, the question was raised in two successive proceedings that he by reason of his interest was not competent to hear the case. In each instance, the Lord Chancellor referred the matter to the Judges of the King's Bench for their opinion, and each time the reply was returned that the Lord Chancellor was competent to hear the case because the Court of Chancery being constituted as it was, he was the single person who could hear and pronounce upon the matter, and therefore despite the point of interest, he and he alone must hear and decide the case. The judgment of the Vice Chancellor being affirmed, there followed further proceedings which involved imprisoment of Dimes for contempt, but eventually, he succeeded in raising the question of the Lord Chancellor's bias once again and on this occasion further advice having been obtained from the Judges of the King's Bench Division, the matter was heard in the House of Lords. In supporting the case of Dimes for annulment of the order of Lord Cottenham, the Solicitor General made the following statement:- "It is competent for any suitor in the Court, if he finds that the Judge who is at the head of the Court is himself largely interested in the question pending before it to call on him to abstain from acting. The principle is that no man shall be judge in his own cause, and it is for the interest not only of the people, but of the Judges themselves, that that principle should be strictly enforced." In the result, the decision of Lord Cottenham was set aside, but the House of Lords heard the appeal as from the judgment of the Vice-Chancellor, which they found it possible to affirm. It is noteworthy that although bias was directly alleged against the Lord Chancellor, to his face; no question that thereby contempt was committed was ever raised throughout the contentious course of that proceeding. The facts on which bias was alleged were in fact admitted. The course of the case and the observations made therein are such that it would be equally good authority to cover a case where a Judge hearing a case is not "himself largely interested in the question pending" before him, but was engaged in negotiating with the opposing litigant for the acquisition of advantage to himself, and actually succeeded in gaining that advantage before the case was brought to a conclusion. Thus, if the allegations were that, pending the hearing of Dimes' case, the Lord Chancellor had applied to the Company to be allotted shares, and had succeeded in obtaining them after a measure of negotiation, and as a special case, no one can doubt that the case on bias would have been immeasurably stronger than it was in the actual circumstances. Indeed, a case of the supposed kind would imply a far 'larger injury to the cause of justice and to the whole question of the exercise of judicial power, if it were not brought to light. A litigant finding that his opponent is thus treating the Judge in a matter where direct advantage is to accrue to the latter would naturally suffer a grave apprehension as to the fate of his own case. Eventually, the case may well be decided in his favour, if he does not raise the question of the Judge's bias, but there is the risk involved that if he does not immediately bring up the matter and eventually the case goes against him, he will be estopped from raising the question in any subsequent proceeding. Moreover there is the aspect of the Judge using a position of leverage while the case is pending to obtain a permanent advantage from one of the litigants, and thereafter feeling himself free to do justice according to the rights and wrongs of the case itself, and that would indeed be a grave thing which all authorities concerned should feel the highest responsibility to prevent and suppress. A contract so concluded would be, in the highest degree a contract vitiated by undue influence, and contrary to the interests of public policy. Cases in which the point of bias has been raised in the face of the Court hearing the case, appear to be infrequent, and that indeed is a matter for some gratification. Those cited before the Court in the present case were of two kinds, namely, cases where the allegation of bias was made to a Superior Court and those where the Court whose impartiality was impugned was of an inferior character. The earliest case of the first kind is that of an Advocate Sham Lal(1) A I R 1932 Lah. 502 Mr. Sham Lal was appearing for one Sukhdev Raj, a detenu, who had moved a revision petition, which had been referred to' a Full Bench. When the case was called, Mr. Sham Lal said that his client wished to withdraw his petition as he had got the relief that he wanted from the Jail authorities. The Full Bench considered that the question referred was of importance, and indicated a desire that it should be argued, but Mr. Sham Lal and his junior both declined to argue the matter and Mr. Sham Lal added that "further instruc tions are that his client did not wish the matter argued before the Bench as constituted. The Full Bench regarded this as a deliberate and intentional insult to the Court, and issued notice to Mr. Sham Lal to show cause why he should not be committed for contempt. Mr. Sham Lal in his reply did not resile from what he had said earlier, but repeated that his client wished to apply to the Chief Justice to constitute another Bench to hear this case, as he did not want his case to be heard by the present Bench and he had a right to do so. He added however, that he had meant no insult or disrespect to the Members of the Bench and was only doing his duty at the request of his client. He offered no apology for his action. In that case also, the Chief Justice was a member of the Bench. In the judgment, it was said that the notion that a litigant is entitled to a choice that his case should not be heard by a particular Bench was incorrect, for no litigant could have any say in the selection of the Judges who were to hear his case. Mr. Sham Lal's words were capable of being understood as a reflection on the\integrity of the Court, and it was emphasized that Counsel's privilege did not extend to becoming the mouth piece of instructions which involved an attack on the dignity of the Court. Therefore, Mr. Sham Lal was found in contempt, but it was thought sufficient in the circumstances of the case to record grave disapproval of his behaviour. The next case in point of time is that of Israr Hussain(2) P L D 1954 F C 313, but it will be convenient to examine it after considering a case from the Indian Supreme Court, that of M. Y. Shareef (3) AIR 1955 S C

18. The Member of a Bench of the Nagpur High Court, in the course of the hearing of a writ matter in which Mr. Shareef was engaged as counsel, made an enquiry "whether para. 6 (of the petition) was inserted for finding an argument before the Supreme Court," and this remark carried to the mind of the litigant and his counsel the implication that. The Judges intended to dismiss his writ petition. Thereupon, an application was made for transfer of the case to another Bench on the ground that the apprehension had been created, by the observation of the Judges, that they intended to dismiss the writ, and the petitioner could not therefore expect justice. The applica tion for transfer was dismissed, as well as the writ, and the Judges issued notice for contempt. An apology was presented, which the Judges refused to accept. The matter was taken before the Supreme Court, where the apology was accepted. The learned Judges emphasised the personal responsibility of the counsel for the contents of applications which they signed, and which contained matters scandalising the Court. But in mitigation of the action of the litigant and his counsel, it was further observed : - "It appears from the proceedings that counsel was genuinely under the belief that their professional duties demanded" that they should take the brief and sign the application, but it was added that if counsel "had studied the law more deeply, they would not have done so." These two cases arose out of direct allegations to Benches of High Court of lack of confidence in their ability to do justice in a pending case, and in each case, the action taken is distinguished by what might be called an excess of gentleness. A reason perhaps could be seen for the very mild treatment given to Mr. Sham Lal, in the fact that his client was a political detenu. But in the case of M. Y. Shareef, speaking with respect, the occasion did indeed arise for balancing, on the one side, the duty of a litigant to do his part, within the four corners of his own case and within his knowledge, to maintain the purity of the instrument of justice in whose hands the fate of his case is placed on the one side, and on the other, the parallel duty of doing nothing to prejudice the officacy of that instrument by anything in the nature of an aspersion upon its capacity to do justice. On the facts as they appear the balance may perhaps have turned upon whether the conclusion drawn from the observation of the learned Judges to which, exception was taken was one which was reasonably tenable, and in itself a sufficient cause for loss of confidence in 'the impartiality of the Tribunal. 1n the course of a hearing, a great deal falls from the Bench which is not of determinative character, and only has side implications which experienced counsel Would normally .not view with any sense of alarm, regarding the result of the case. The finding that Mr. M. Y. Shareef was in contempt by reason of his having expressly cast a doubt upon the impartiality of the High Court, which was hearing his case, could conceivably be founded on the proposition that the observation of the learned Judges indicating a possibility of an appeal to the Supreme Court by the petitioner was 4n itself not such as to give substantial justification for the entertainment of any such doubt in the mind of a responsible and experienced lawyer. The case of Israr Hussain is one of a person who was both a lawyer as well as a litigant. He was plaintiff' in the capacity of tenant in a suit against his landlord Qamar-ud-Din, and the latter was alleged to have made an announcement that the Judge seized of the case, namely, Mr. Justice Vellani, had been legal advisor to a number of his co-defendants, and he could get whatever result he wanted in the case. At a certain stage of the case Israr Hussain made application to the Chief Justice for transfer of his case away from the Sind Chief Court to some other High Court in Pakistan. In support, he mentioned the allegation of his opponent Qamar-ud-Din and made the following assertions as to the conduct of the case by Vellani, J. He said that on one occasion the Judge had refused to hear his explanations and had got angry and tried to browbeat him. During an inspection of the site, the Judge had brusquely refused to see certain things that 'Israr Hussain wanted to bring to his notice. In his inspection note, the Judge had made an incorrect entry, and when this was pointed out to him later, he admitted the error, but did not correct it in the note; this might have entailed having to call the Judge in evidence as a witness. The Judge had allowed Qamar-ud-Din to file an affidavit, but had refused Israr Hussain's request to file a rejoinder. On a particular date, which was specified, during the hearing in Court, the Judge had burst into anger towards Israr Hussain; bad spoken at the top of his voice and humiliated his Advocate. It was said in a general way that the Judge had on several occasions expressed himself in such a way, as to raise an apprehension in Israr Hussain's mind that he might not get justice. The affidavit was published in a newspaper at the instance of Israr Hussain, the next day. That was an action which clearly exhibited a desire not merely to obtain justice, but to injure the Judge and through the Judge the whole instrument of justice constituted by the High Court. Israr Hussain was convicted of contempt by the Sind Chief Court and was given special leave to appeal to the Federal Court of Pakistan. At the hearing, learned counsel appearing on his behalf admitted that Israr Hussain was in contempt, and that the truth or otherwise of the statement which he had made was consequently irrelevant. He had, however, acted bona fide to protect his interest in a matter of extreme importance, and pleading that the affidavit had not expressly alleged that the Judge was interested in the opposite-party, the prayer was advanced that the punishment awarded would seem too severe. At the same time, an unqualified apology to the Judges of the Sind Chief Court was submitted. In the judgment of the majority, which was delivered by Muhammad Munir, C. J., there is contained an examination of the-factual grounds stated in the affidavit, in point of foundation in truth. The allegation that Vellani, J., bad been legal advisor to some of the defendants was found upon admission to be false. The allegations against the learned Judge in respect of the inspection note and the affidavits were found to be based on no ground at all. As to the behaviour of the Judge in Court, it was said that he had been represented in the affidavit as "a mere blusterer whose only object was to brow-beat and humiliate one party." The conclusion reached in the judgment of the majority was that the case was "one of the worst contempts of a Superior Court ever committed by a party." In my separate judgment in the same case, I came to the conclusion that Israr Hussain's transfer application was competent and that it afforded him "a bona fide occasion to give expression to the existence of dissatisfaction with the Judge from whom transfer was sought." Such expressions must necessarily be in the nature of criticism of the Judge either as to his capacity to deal with the case by reason of interest or otherwise, or as to his conduct of the case, and I noted that the argument had proceeded on the basis that it is possible "by the use of improper expressions to exceed the legal privilege to a litigant who proceeds in this way." I pointed out that scandalous affidavits on Judges were to be punished on the principle that "they constitute an obstruction to public justice, as against the public and not as against a particular Judge, who is attacked" and the "punishment is inflicted for the purpose of protecting the public." In a case of that kind "in order to constitute a libel of a scandalous nature, the statement must impute want of some general or special quality requisite for that office." I found that on the facts, as they appeared in the case, there was falsely imputed to the Judge (1) inequality of treatment of the two parties, (2) exercise of pressure on one party to enter into a compromise, and (3) refusal to proceed with the case judicially. These expressions were calculated to leave the Courts "impaired in their utility, by loss of public confidence. No basis of fact had been furnished for their employment. It was not a matter of mere choice of words, but one of substance. Had the specific allegations been satisfactorily proved, I should have taken a different view. In the present case, a similar question arises and it is a matter of gratification to find that in the judgment of the learned Chief Justice and that of Mr. Justice M. R. Khan, who were directly made the subject of attack, there is no attempt to rely on the proposition that in the case before them, the truth or falsity of the allegations was wholly irrelevant, and that the contemner was liable to be punished, whether or not he was right in what he said. Each of these learned Judges has gone into the facts and has rendered explanations in respect of the allegations of fact which were made the subject of the rules they issued. Of the second class of cases, where the allegation of bias is made against a subordinate Court, I shall refer to only one, viz., the very recent case in the Privy Council of Vidyasagara (1) (1963) A C

589. The Tribunal concerned was an Industrial Court with a lay Chairman, hearing an industrial dispute in which one party was the workers' Union. The proceedings were protracted and during their pendency, the Union had proclaimed a boycott of the opposite party which was the cause of serious pecuniary loss to him. At one stage in the proceedings, an order was made by the Court, for proceedings to continue ex parte the Union, through their default in appearance. At a later date, when the Union applied to be allowed to defend the case, the Chairman made an order granting the prayer on condition that the boycott was raised. On a later date, counsel for the Union, Mr. Vidyasagara, a Barrister appeared before the Industrial Court, and withdrew from the proceedings after making a statement, that his client "felt that this Court by its order had indicated that an impartial enquiry could not be had before it." and therefore the Union felt itself "compelled to withdraw and will not consider itself bound by any order made ex parte." The Industrial Court was constituted under a statute which made the offence of contempt of Court subject to absence of sufficient reason. The Industrial Court having referred the matter to the Supreme Court, the Barrister Vidyasagara was held in contempt and a fine of Rs. 500 was imposed. He appealed to the Privy Council where it was urged that there was no mere gratuitous insult offered to the Industrial Court. At the same time the Union was raising the matter before the competent Minister to procure appointment of another Court. There had been at the most an act of discourtesy, as opposed to contempt. The professional duties of counsel were to be borne in mind. In this case, counsel had made a statement in good faith on a relevant fact, believing it to be his professional duty. The proposition was advanced that "one's duty to one's client, is not something which can constitute contempt of Court." The Judicial Committee dismissed the appeal on the ground that to say that an impartial enquiry could not be had before the Court, was clearly to suggest that the Court was prejudiced to such, an extent that it could not remain impartial. Counsel had assumed full responsibility for making that suggestion by reading a statement. In fact, there was no call for such a statement. The Judicial Committee went further and said that the allegation of prejudice was unjustified, deliberate and unnecessary. It was possible that the Barrister could have moved for certiorari on the ground of bias so as to get review of the lower Court's decision, but in the view of the Judicial Committee, no adequate justification existed for the statement of Mr. Vidyasagara in the circumstances under which it was made. There are clear features of distinction between the case of Vidyasagara and the present case. The Court there contemned was a subordinate Tribunal of a quasi judicial nature with a lay Chairman. The question whether the boycott was within the legal right of the Union may well have received greater attention than it did. If it was legal, then indeed a ground of complaint might appear from the order obliging abandonment of the boycott, and thus favouring the employer, as a condition of the Union being allowed to continue the defence. The plea of "adequate justification" might conceivably have bee n raised thereon. Moreover, on the view taken in The King v. Williams, certiorari to quash the decision of the Industrial Court may not have been available, had the objection not been taken at the hearing. But indeed, the considerations which arise in cases of contempts of subordinate Courts are of a wholly different order of importance from those which arise when a plea of bias is raised in the face of a Superior Court. There are valid considerations which favour the extension of protection by the Superior Courts to the subordinate Courts, when the latter require it to preserve their utility and dignity in the public eye, but these pale into insignificance against the obligation which the Superior Courts themselves carry for the preservation of their position at the apex of the Judiciary against all attempts to lower them in the public esteem and thereby -to render them less competent as instruments of public justice. In the latter category of cases, the present case is surely unique of its kind. In the case of Dimes, there was nothing derogatory to the character or conduct of Lord Chancellor Cottenham in the fact of his being a shareholder in the public company. which was one of the parties before him. What was made the foundation of a plea of bias in the case , of M. Y. Shareef was merely the dropping of a remark from the Bench which had nothing to do with the case itself, and conveyed no reflection of a personal character on the Judges. In the case of Sham Lal, nothing was said regarding the reasons why Sukhdev Raj did not wish his case to be heard by the Full Bench in question, but it being a case of a political nature in a period when the agitation for Home Rule in India was at its height, it may be safely presumed that the objection was indeed of a personal nature, namely, that each of the three Judges of the Bench was a member of the ruling race, i.e., British. But the imputation was nevertheless of a general character, conveying nothing of criticism in respect of personal conduct. In the case of Israr Hussain, the conduct alleged, upon which the application for transfer was based, was conduct in the course of the trial of the case, the criticism being of the Judge as a Judge, and the case failed because all the allegations were wild and baseless, and were admitted to be so. The present is a case where the attack on the Court was based on the conduct of a member of the Court, and not merely an ordinary member, but the Chief Justice of the Court. Mainly, it was conduct in a personal capacity, namely, the carry ing on of a negotiation with a party to the case before the Court, which was calculated to be of direct personal benefit to the Chief Justice. With this, however; the alleged contemner connected the conduct of the proceedings before the Court, by the allegation that the cases were delayed from date to date, in spite of efforts by counsel to have them heard a quickly as possible, the total period thus consumed covering fully the period of the negotiation. It will be convenient to state here the factual replies on this aspect of the case, which have been made by the Chief Justice in his judgment. He said that it was in March 1963, that certain lands belonging to him in Purana Paltan had been requisitioned by the D. I. T. and in June or July 1963, he had applied to the D. I. T. to allot him land in some building estate in lieu. The Chief Justice admits that at first, land in the inferior colony of Banani was offered to him on the 9th November 1963, which he at once refused and then on the 15th November 1963, some land in Gulshan, a superior colony was offered, which he went to see in the company of the Chairman on the 26th November 1963. He found that it was a small plot, near the commercial area, and among the plots allotted to business men, while he wanted a plot "like those of the plots allotted to some other Judges and distinguished persons." It was not true that this plot offered to him on the 15th November, had to be cancelled from another person's allotment. However, on the 2nd December 1963, in consequence of his objections made after the inspection on the 26th November 1963, the D. I. T. offered him another plot "of the required size in the block of distinguished persons," which he accepted. He observes in the judgment that this was no grace or favour on the part of the D.

1. T. but was an allotment like others made to members of the public against a premium of Rs. 15,000 per bigha. Moreover, the allotment was an act of a corporate body, made in pursuance of a claim advanced much earlier, and in the normal course of business, and about such a transaction "there could not be anything shady." The D. I. T. had allotted so many plots to so many officials that hardly a member of the Judiciary could, in the opinion of the learned Chief Justice escape similar "allegation by designing persons" in respect of such allotments. Similar justifications are to be found in some of the other judgments in the case. With respect to the learned Chief Justice and the Judges, it seems to me that a real and complete appreciation of this transaction cannot be based simply on its own concrete facts. It must also be guaged in relation to the timing of the request and its satisfaction, for a proper estimation of the fault, if any, of the litigant and his counsel, in resting their allegations of bias thereon. To say that the allotment was an act of a corporate body is scarcely a sufficient answer when it is appreciated that it was the corporate body itself which was opposing the litigation in the case. The D. I. T. was not taking the case lightly. Eminent counsel had been engaged. An important issue was at stake, viz., whether an employee whore it wished to get rid of, could be forced back upon it by a judicial order. A detached observer could not conclude otherwise than that to stand in good favour with the presiding Judge carried something, of an advantage, in the circumstances. To say that the allotment was no act of grace or favour only gives a partial impression of the negotiation as a whole. It is clear that something of effect was necessary to secure a piece of land for the Chief Justice to his own satisfaction, which was not secured until the first offer had been improved in his favour, not once, but twice, so that finally, he was given land "in the block of distinguished persons." In the detached view, it might be thought that if that had been easily possible, it would probably have been done in the first instance, without insistence on his part. Therefore to regard this whole proceeding only as one carried on in the "normal course of business" is to ignore these very aspects of the matter which were apt to create in the mind of the litigant opposing the D. I. T. a doubt whether he could obtain justice at the hands of the learned Chief Justice. Mr. Noman was no stranger to the D. I. T. He had been, until a few days, before one of its principal officers. He was therefore in a position to obtain the relevant information. But, in the largest number of cases, the litigant would be wholly unaware, that such a negotiation were in progress, and that makes it all the more necessary when, in a rare case, such matters come to knowledge, that they should also see the light of the day in public proceedings before the Court itself, and if necessary before a higher Court, so that all risk of pollution of the stream of justice at its source, should be avoided. Again to say that the D. I. T. had allotted a great many plots of land to Government officials including members of the Judiciary and that it was a party to many cases before the Courts, is not a sufficient reply, where the allegations were specifically of a particular negotiation during the pendency of a particular case. The simple action appropriate to the case, which would have avoided all possible suspicion in every mind would have been to avoid dealing with any D. I. T. cases, so long as the allotment question remained a live issue. It is important that I should emphasise that everything said in the foregoing paragraph has relevance only to estimation of the effect upon the mind of the litigant, of the facts coming to his knowledge concerning this negotiation. Those facts are admitted by the Chief Justice, and I must not be thought to be hesitant, in the slightest degree, in accepting his assertion that the whole dealing was completely straight-forward and above board. What falls for consideration in this case is, whether from the angle of vision of the litigant, allowing him no advantage of natural anxiety, but treating him as nearly as possible as a detached observer, under obligation to make a balanced judgment, the facts as a whole, that is, considered against the background of the pending litigation, did not suffice to make him, as he said "bona fide apprehensive that he will not get fair justice", if his cases were taken to a decision before the same Bench. A basis for bias is requisite. If the allegations made by Mr. Noman in his two petitions lad been confined to these few facts, the case might in my opinion have worn a totally different appearance, but he did not stop there. He made a point of the fact that Mr. Ehsan's name was deleted from Writ Petition No. 426 of 1963 (seeking stay of enquiry), suggesting that this was by way of a favour to Mr. Ehsan, in return for what he had done. To this the reply of the learned Chief Justice is that the enquiry being by order of tie D. I. T. itself, Mr. Ehsan was not personally responsible. Moreover, Mr. Khondkar, Senior counsel for Mr. Noman agreed to the deletion. Furthermore, the name of Mr. Ehsan was never deleted from the earlier Writ Petition No. 417 of 1963. These answers are sufficient to give the lie to this particular allegation. Next, it was suggested that there was some sinister reason for the Judges not signing the oral order, which they had made in Writ Petition No. 417 of 1963, in the first instance, actually, the oral order was one of dismissal, and the learned Chief Justice explained that during the hearing of the Writ Petition No. 426 of 1963, they became aware of a doubt as to which set of rules was applicable to Mr. Noman, and it was on this account that eventually an order was made issuing a rule in Writ Petition No. 417 of 1963, as well as in the second Writ Petition No.

426. Here again, the expressed suspicion of Mr. Noman was clearly groundless. He made a point of the successive adjournments of his cases, suggesting, though not in so many words, that they were prolonged until the other matter was satisfactorily concluded. But a strong and sufficient explanation is provided by -the Chief Justice, namely that there wan a heavy list of motions, to be taken in due turn, and adjournments were inevitable. Moreover, Mr. Noman's case, wan eventually taken up and decided out of turn. His inference of design on the part of the Court is clearly the product of an over-anxious and over-wrought mind. The innuendo is not to be excused on that ground, and is still less excusable in the case of his two counsel. A more serious allegation by Mr. Noman was that the latter stay application was heard on the 18th December 1963, by the Chief Justice sitting with Mr. Justice A. S. Chowdhury, and arguments having been completed in the morning, it was expected that judgment would be delivered in the afternoon, but the Judges returned to Court after an unusual delay and not only was no judgment pronounced, but the case was ordered not to be treated as a part-heard case with the result that on the following day, it was heard by the Chief Justice and Mr. Justice M. R. Khan, who had been dealing with it earlier. On that day, that is the 19th December 1963, judgment was delivered in o pen Court. It was averred that this was by Mr. Justice M. R. Khan who had come to Court with a prepared judgment already written. The suggestion was that the Chief Justice avoided disposal of the stay petition by the Division Bench of which Mr. Justice A. S. Chowdhury was a member, so that it could be heard the next day by himself sitting with Mr. Justice M. R. Khan. The explanation given by the learned Chief Justice is that the hearing was not concluded on the 18th December before himself and Mr. Justice A. S. Chowdhury, during the morning session. Owing to a visit by certain Judges of the West Pakistan High Court, he and Mr. Justice Chowdhury were late in returning to the Court, and soon after that Mr. Justice A. S. Chowdhury had to sit with another Judge at 3 p.m., to deliver judgments. When the case was taken up again on the next day, by the Chief Justice and Mr. Justice M. R. Khan, arguments were heard in full and forthwith the order dismissing the stay petition was dictated in open Court, not by Mr. Justice M. R. Khan, but by the Chief Justice himself. Here indeed the litigant, Mr. Noman has been led, no doubt by stress of partisanship, into making false disparaging statements in a totally irresponsible manner. There seems no doubt that it is also totally false to suggest that the decision of the case by the Bench which included Mr. Justice A. S. Chowdhury was deliberately avoided. Mr. Noman in his petitions also made a point that the Chief Justice at the hearing of Writ Petition No. 426 had suggested that it should be withdrawn, and had suggested that this was an indication of bias. The learned Chief Justice explained that this observation was made in good faith, on the consideration that the same grounds could be taken in the departmental enquiry, and if the case did not succeed there, Mr. Noman could later move the High Court on those grounds, but to get an adverse finding from the High Court in advance would prejudice his defence in the enquiry. That is clearly a bona fide explanation. It was a most damaging allegation that Mr. Noman made, and proves to be entirely without justification. The counsel in the case can have no excuse for supporting the allegation. , It thus appears that the insinuations contained in- the contempt and transfer petitions to the effect that the proceedings) before the Court were deliberately delayed, or were otherwise vitiated by partiality were totally groundless. A litigant might through anxiety for the success of his cause, be guided into then formation of such adverse conclusions, but he would be incurring grave peril if relying on no 'More than his one-sided suspicions, he should levy a charge of bias against the Court, particularly against a superior Court. It would-be necessary for him to be very sure of his ground, in respect of facts, before he could prefer such a charge, particularly a charge made in the face of the Court. In the present case, the litigant, Mr. Noman had been represented by counsel throughout, who were better placed than himself to guage the circumstances relating to each one of the actions of the Court on which the suspicion of bias had been grounded, and they should surely have been capable of estimating, by the aid of their long experience of the workings of the High Court, whether or not the matters which were disturbing the mind of their client were incapable of explanation otherwise than by partiality. It was clearly a duty which fell upon them, independently of their duty to their client, to ask themselves whether these matters were not susceptible of a completely innocent explanation, and if they had done so, in view of the case with which the learned Chief Justice has been able to give proper explanation in respect of each of these acts,, they would surely not have found it possible to make themselves generally responsible for presenting these facts as proof of bias. Mr. Noman went to an unconscionable length when he alleged in his transfer application that the Chief Justice hail been awarded compensation for lands acquired from him , by the D. I. T. at an abnormally high rate, and was therefore under some sort of obligation to the D. I. T. The learned Chief Justice has furnished a simple answer to this allegation. His land had not yet been acquired, but had only been requisitioned, and moreover the D. I. T. had no say in the estimation of com pensation, which was for the Deputy Commissioner to do. Moreover, the requisition was not by the D. I. T. but under the law, by the Provincial Government or by the Deputy Commissioner. In the case of his own lands, only a provincial assessment had so far been made, and since this included compensation for the structures on the lands as well, it was somewhat higher than if it had been for the land alone. Regardless of the quantum of the compensation, the fact that the assessment thereof was in the hands of an authority totally distinct from the D. I. T. clearly gives the lie to these allegations of Mr. Noman imputing lack of impartiality to the Chief Justice. A most injurious charge was made, in a totally irresponsible manner, and it is most regrettable that it was supported by Mr. Noman's counsel as well. Not content with this, Mr. Noman in his transfer application made a direct allegation against the other member of the Bench as well, that is, Mr. Justice M. R. Khan. The allegation was that some three or four months earlier, the D. I. T. had re-allotted to him a plot of which the allotment had been earlier cancelled for non-compliance with its terms. In his separate judgment, Mr. Justice M. R. Khan has explained that in respect of one instalment of the premium of land allotted to him, he was in arrears, and had received the warning that if the instalment was not paid up by the 11th March 1963, the allotment would stand cancelled. He accordingly paid the money, and consequently no question of cancellation of the allotment ever arose, so that it was entirely untrue to say that the plot had been re-allotted to him. This most damaging allegation of having received a favour from the D. I. T. also proves to have been totally groundless. By way of proof of complete impartiality the learned Chief Justice has referred in his judgment to the fact that the Division Bench actually issued rules nisi in both of Mr. Noman's petitions, that is Writ Petitions Nos. 417 and 426 of 1963. The other learned Judge, Mr. Justice M. R. Khan has noted in his judgment that these rules nisi were eventually made absolute by the same Division Bench on the ground that there were no disciplinary rules applicable to the case, this being a point which had been brought up in the course of the argument by the learned Judges themselves. Mr. Justice M. R. Khan has also pointed out that none of the points of law canvassed by Mr. M. H. Khondkar was found to be at all tenable, and has proceeded to emphasise that Mr. Khondkar had "repeatedly expressed his gratitude when we pointed out legal provisions regarding the making of the disciplinary rules." With respect to the learned Judges, the final decision in the cases does not operate with such conclusiveness, where the bias is drawn in relation to intermediate proceedings, and a contemporaneous negotiation by a member of the Court with one of the parties to these proceedings. Certain observations have been made earlier in this judgment indicating the mischiefs that may arise out of a circumstance of this kind, and it is unnecessary to repeat here what has been said already as to the proper course for such member of the Court to take, in such a situation. The liability of the appellants for contempt of the High Court by repetition, in the petitions for special leave to appeal to this Court against the rules issued to them by the High Court of the allegations which they had made in their contempt and transfer petitions, remains to be considered. From the judgments delivered in the High Court, it appears that some difficulty was felt in this respect on account of a decision of the Federal Court of Pakistan in the case of S. M. Haq(1)PLD 1953FC247 . That was, however, a case where disciplinary action had been taken against one of its Advocates by the Lahore High Court, on the ground of professional misconduct by reason of certain references to the High Court made in the grounds of a petition to the Federal Court for special leave to appeal against a decision of the said High Court. -It is correctly pointed out in the judgment of Sattar, J., that "the appeal of Mr. Huq in the Federal Court succeeded mainly on the ground that, as the Federal Court exercised a special jurisdiction in regard to criminal appeals, the question as to what should be proper grounds in petitions for leave to prefer such appeals falls within its exclusive jurisdiction to decide." , In the judgment of the Federal Court itself, the distinction was made clear in the following passage:- "But. Mr. S. M. Haq was not arraigned for contempt and there are passages in the judgment which clearly indicate that the learned Judges were conscious that Mr. S. M. Haq was entitled to raise the plea of privilege." Mr. S. M. Haq was also an Advocate of the Federal Court, and his conduct, appearing from the expressions he had used in the grounds of the petition for leave to appeal, could equally have been made matter for disciplinary action by the Federal Court, if it came to the conclusion that there was excess of a nature damaging to the capacity of the High Court to do justice. That in fact was found by the Federal Court, as appears from the concluding passages in the majority judgment of the Court but in regard to the question whether that excess invited disciplinary action, the learned Judges of the majority formed the opinion that the mistake was unintentional, that there were circumstances of mitigation, and that as Mr. Haq had already suffered part of the punishment imposed upon him by the High Court, there was no necessity for further disciplinary action by the Federal Court. That judgment, therefore, cannot be treated as a precedent on the point whether by expression in a motion seeking justice in a Superior Court, it is ever possible to commit contempt of the Court whose decision is sought to be reviewed or revised. But it is of some interest and it may be useful to point out that in that case as well, a point of conflict arose between the duty of the counsel to his client and the equivalent duty to the Court, namely, to maintain it in that position of dignity which is requisite for securing public confidence, without which the effective functioning of the Court would be placed in serious jeopardy. On the one side, it was contended that the "cardinal necessity was to provide conditions in which counsel can perform their difficult duties with the utmost fearlessness and yet be protected against the existence of means by which a lawyer might be overawed and reduced to a state of pusillanimity, by reason of something said or done by him in the course of performing these duties." The case being one of recourse to a higher Court from a decision of a lower Court, it was emphasised in the judgment of the majority that just as judicial comity lays upon the Superior Court the duty to exercise its power of criticism of Courts of inferior jurisdiction with restraint, so also counsel invoking the; superior jurisdiction should practice moderation in the expression of their attack upon the judgment under appeal, particularly because "of the necessarily tentative nature of the submissions advanced." The caution was added that "counsel should be careful not to add to the difficulties of his position by needless stringency of language," and the following general proposition was laid down :- "Provided the criticism is advanced with the single purpose of aiding in the due dispensation of justice, no words employed can be too strong, if in choosing them, it is also borne in hind that so far as possible, no words should be used which gratuitously bring disrepute to, or belittle, the Judges of the Court whose work is being criticised." Here also, there was a conflict between two duties falling on the litigant as well as his lawyers, namely, on the one hand a duty to bring to notice without delay facts within the litigant's knowledge which prima facie constituted a bar to the capacity of the Court to do justice in his case, and the other, the over present and dominant obligation to maintain the Court, specially if it be a Superior Court, in the high state of dignity appropriate to its status and necessary to its functions. In such a case the, importance immediately appears of the use of extreme caution i n making the averments of fact on which the ground of bias is placed, as well as in the choice of language in which those, averments are couched. No question arises whether it was necessary in the petition to the Supreme Court to repeat the matters which had been made, the subject of the Rules for contempt issued by the High Court. Those petitions were dismissed summarily, without any reference to the factual matters adduced. In the absence of any finding on the facts by the Supreme Court, there can be no doubt that the High Court had jurisdiction to find that by repetition of those allegations in another place, a further act of contempt had beer or committed. The requirements of justice in the case were fully safeguarded by the circumstance that an appeal to the Supreme Court lay as of right against every conviction for contempt by a High Court. It is unnecessary to examine the details of the charges against the appellants in respect of their petitions to thi.4 Court. If, there be contempt of the High Court by some or all of the allegations contained in the contempt and transfer petitions made by the appellant, Mr. Noman, it was equally a contempt repeat those allegations in the petitions to this Court. As a result of this somewhat lengthy examination of the facts and the law in this case, certain propositions may be laid down, which it will be of advantage to the furtherance of justice to formulate in precise terms. They may be stated as follows (1) It is open to a litigant to raise in the face of a Court an allegation of bias in that Court, and this is true whether it may be a Superior or a subordinate Court. If such a plea is not raised before the Court as soon as the facts on which it is based come to the knowledge of the litigant, he may find himself' barred against relief under the provisions of Article 98 of the Constitution, in respect of the ultimate decision. (2) The plea of bias involves criticism of a Superior Court in point of its capacity to do justice, confidence in which is (a) vital to the proper functioning and even to the continuous existence of the Judiciary as at present constituted, and (b) essential therefore to the public interest. Consequently, such an action brings the agent within the range of the contempt, jurisdiction, unless it can be totally justified on factual ground, the onus of establishing which lies exclusively on him. (3) Mere apprehension in the mind of a litigant that he may not get justice, such as is based on inferences drawn from circumstantial indications, will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follow necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a Superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found in. contempt. (These propositions are advanced in consciousness of the possibility that in certain respects, they may not be consistent with certain observations contained in the judgment of the majority of the Federal Court of Pakistan in the case of Anwar v. The Crown(1) P L D 1955 F C 185 . The facts on which the decision in that case proceeded were entirely different from those of the present case). In the light of these propositions, it becomes necessary to hold that the allegation made by Mr. Noman, which was supported by Mr. Khondkar and Mr. Shafiqur Rahman, that the Chief Justice while he was engaged in hearing the case of Mr. Noman against the D. I. T. was also concurrently engaged in a negotiation with the D. I. T. for personal advantage to himself, of which the facts have been admitted by the Chief Justice himself, was justly and properly raised in bar of the capacity of the Chief Justice to do justice in the case. It was the duty of Mr. Noman to raise this allegation while the proceedings were yet undetermined. By raising that allegation on the relevant facts, no contempt of the Court can be thought to have been committed. But every other allegation made in relation to the Chief Justice personally and in relation to Mr. Justice M. R. Khan, and in relation to the exercise of judicial power by the Division Bench in the conduct of Mr. Noman's cases was totally groundless and unjustifiable. In certain instances, the allegations were false to the knowledge of the appellants, e.g., as to the involvement of the D.

1. T. in the giving of compensation to the Chief Justice for the lands taken from him, and as regards the pronouncement of judgment on the 19th December 1963. In other cases, the conclusions drawn and the doubts as to impartiality expressed were based on self-induced apprehensions, for which the litigant's anxiety was the sole cause. These cannot therefore serve to save the litigant from action in contempt. Even less can they serve to excuse the conduct of experienced and competent lawyers, who by action and expression positively supported the litigant in these attacks upon the Court's impartiality. That-in one respect the plea of bias was justifiably raised does not excuse the general disparagement of the Judges and of the Court itself involved in the remainder of the allegations, although this circumstance may be of weight in determining the seriousness of the fault and the punishment itself. Therefore, in view of the ascertained facts of this case the conclusion of the Full Bench that each of the appellants was in contempt in respect both of the petitions made to the High Court as well as the petitions made to this Court, must be upheld. H The punishments imposed upon the appellants are substantial. In the rules issued in respect of the petitions to the High Court, Mr. Noman and Mr. Khondkar have been sentenced to pay a fine of Rs. 1,000 each, and Mr. Shafiqur Rahman to pay a fine of Rs.

200. But in respect of the petitions to this Court, much higher sentences have been. imposed, namely, a fine of Rs. 2,000 on each of the appellants. The reason for this distinction is not by any means clear. Perhaps it was thought that the offence assumed a greater seriousness when it was repeated 'before the Supreme Court, but if so, the learned Judges may well have left that to this Court to determine, since it could be presumed that there would be appeals. In truth, there was no aggravation by repetition of the contempt before this Court, and therefore equal punishment for each contempt may rightly be awarded. It remains to consider what that punishment should be. In view of the fact that in an aspect of substantial importance which may even be said to lie at the very root of the whole case, the action of the appellants, in advancing criticism in the face of the Division Bench was justified, it is appropriate that effect should be given to the consequent minimization of their offence in the punishment which they should be left to suffer. The proper order therefore to make in the case would be one of substantial reduction and equalisation of the fines imposed. In my opinion a fine of Rs. 200 in respect of each conviction will be appropriate and I would make a direction accordingly, while maintaining the convictions. S. A. RAHMAN, J.

I concur in the final order proposed to be passed by my Lord the Chief Justice in these appeals, but speaking with the utmost respect, my approach is somewhat different from that adopted by my Lord in his judgment. With regret, I feel constrained to differ from some of the general propositions formulated therein. In my humble opinion, the only species of bias in a Judge of a Superior Court that can be pleaded, with immunity from proceedings in contempt, is that by which the Judge is disquali fied from acting by reason of such identity of interest with a party as makes him a judge in his own cause. Even in such a case, the objection must be confined to a statement of facts on which the disqualification is based, without imputing motives to the Judge concerned. It appears to me, speaking with respect that the rule was correctly laid down by the majority judgment in Anwar v. The Crown(1) P L D 1955 F C 185 in this regard. Dimes v. Grand Junction Canal(2) (1852) 10, E R 758, Frome United Breweries Co. v. Bath Justices(3) L R 1926, A C 539 , Rex v. Sassex Juvtices(4) (1924) 1 K B 256, provide illustrations of the same principle from the English jurisdiction. I am not aware of any other case in which this principle might have been extended to cover any other kind of alleged bias, in respect of a judgment by a Judge of a Superior Court. As was pointed out by the Privy Council in Vidyasagara v. The Queen (5) L R 1963, A C 589 (P C) different considera tions may apply where an attack is made in a Court of review on the impartiality of a lower Court. It is significant that the law does not provide for a transfer application to be moved for transferring a case from one Judge or Bench of a High Court to another on such grounds, vide In re : Sham Lal Advocate (1) A I R 1932 L 502 and Israr Hussain v. Crown(2) P L D 1954 F C 313 . The reason for such protection to the superior judiciary against such allegations is understandable. It would bring the whole judicial system into disrepute and public confidence in the integrity of Courts at the judicial apex would be badly shaken if opportunity is provided to disgruntled but unscrupulous litigants to throw mud on High Court Judges in the hope that some of it will stick. If this class of litigant is given the latitude to arraign the justice of superior Courts on grounds of bias other than the one species referred to above, even innocent social incidents like the presence of a Judge at a dinner where a litigant unknown to the Judge happens to be present, may be twisted into sinister suggestions and the Judge may be put in the awkward position of defending himself against a baseless charge. Even false allegations of bribery may be conceivably put forward, to intimidate the Judge. Once such an allegation forms the subject of an inquiry, tongues begin to wag and the damage is done, irrespective of what the eventual result may be. Truth and justification are not valid defences to a charge of contempt of .a l Judge of a Superior Court, where the contempt consists m scandalizing the Judge or attacking his impartiality. Reference may be made in this connection, inter alia, to the case of Israr Hussain, the case of K. L. Gauba(3) A I R 1942 Lah. 105 and Sir Edward Snelson v. Judges of the High Court of West Pakistan(4) P L D 1961 S C 237 and these cases seem to rest on a sound principle. In the light of the legal position as I see it, therefore, I would not be inclined to hold that the learned Judges in the instant case were, in law, disqualified to adjudicate on the matter before them, merely by reason of the fact that one or both of them were continuing negotiations started earlier with the Improvement Trust, a public body, to acquire a plot or plots of land, on the usual rate of compensation. There was here no such identity of interest between them and the Trust as would make them judges in their own cause. Even the finalization of the purchase of the plot would not make them members or officers' of the Trust. But I confess, I am greatly surprised that they learned Chief Justice did not think it fit to assign the case to another Bench, as he very easily could have done, when circumstances were mentioned indicating that the litigant concerned may have some reason for entertaining an apprehension that his case may not receive that dispassionate considerations which is expected from the highest Tribunal in the Province. I have no doubt that the learned Judges concerned were capable o taking a detached view of the case, despite those circumstances. But justice must not only be done but must be manifestly seen to be done, so that no taint of suspicion is harboured in the mind of a party who has occasion to seek redress at such high judicial level. I would, therefore, say that it was highly improper for the learned Judges to continue hearing the case after the embarrassing circumstances had been brought to their notice. This is undoubtedly a strong mitigating factor to be taken into account when assessing the quantum of punishment in these cases. Even these relevant facts should have found mention by counsel and client, with requisite courtesy and decorum, without importing insinuations or expressions of partiality. B. Z. Kaikaus, J

I had always assumed it to be the law that the integrity of a Judge of a Superior Court was not liable to challenge. As a counsel it could never have crossed my mind that I could impute to a Judge incompetence to deal fairly with a case and while on the Bench I have never, previous to this case, come across counsel who made an effort to do so. In fact counsel are themselves jealous of the dignity of a Judge which is linked with their own prestige. If a situation arose wherein a counsel regarded it undesirable that a Judge should hear a case the counsel would approach the Judge, state the relevant facts and while adding that he himself had no objection to the learned Judge hearing the case would ask the Judge whether under the circumstances he would like to hear it. The Judge would say he did not want to hear it and the case would then go to another Judge. In the annals of decided cases in pre-Partition India it would be difficult to find any case where a claim was made that a litigant or counsel was entitled to impute to a Judge incompe tence to hold a fair trial. However, in the present case a plea has been taken that a litigant is entitled to allege partiality against a Judge of a Superior Court provided he has reasonable grounds for doing so. My Lord the Chief Justice appears to be accepting that proposition, the main reason for my Lord's decision- being that justice should "seem to be done". The law of contempt which makes the integrity of Judges of Superior Courts immune from attack is based on sound principles of public policy. Justice thrives in an atmosphere of dignity and even derives assistance from pageantry. It is essential for the administration of justice that Judges of superior Courts be absolutely protected from attack for otherwise it would be difficult for them to function at all. Also the consciousness that he is immune from attack creates in the Judge a sense of his own dignity which is an important factor in the development of a judgment attitude. Speaking with great respect to my Lord the Chief Justice I would say that perhaps my Lord has not envisaged all the consequences of permitting attacks on the integrity of Judges. To allow litigants to bring charges of partiality against Judges would lead to a position which it will be impossible to tolerate. Let me quote an example. A litigant may allege that the Judge was seen coming out of the house of the other party late in the night. le may file an affidavit and this may be supported by other affidavits. The allegation may in fact be untrue and may be denied by the Judge, but there is no law which makes the word of a Judge conclusive as to such matters and the Court that is deciding the question of bias will have to determine it on evidence. It may find against the Judge. In fact my Lord the Chief Justice requires the litigant to establish his allegations by evidence. What then the Judge would do in such circumstances? Assume he was at another place at the time at which he is said to be in the house of the other party and there were a number of persons who can depose to that fact. Should the Judge also secure the affidavits of these persons to avoid the danger of being dis believed? The Judge will become a party in that case and it would be a most undignified proceeding which will bring into contempt the whole administration of justice by the Superior Courts. So far the law has been that no plea of bias (except for technical pleas to which I will presently refer) can be taken against a Judge. A Judge of a Superior Court is capable of dealing fairly with all cases and under all circumstances. No attack can N be made on his competence to hold a fair trial and any plea of truth of such attack only aggravates the contempt. No application for transfer lies against him on the ground that the litigant apprehends an unfair trial. Any change in this law will have disastrous consequences. I have discussed the matter on general principles, but the question really is one of privilege. The law of contempt in so far as it relates to the High Courts and the Supreme Court is now p contained in Article 123 of the Constitution. It is not necessary to discuss what the law was before the Constitution though as a matter of fact Article 123 is only a reproduction of that law. Let me reproduce Article 123 for easy reference. It runs: "123. (1) In this Article, "Court" means the Supreme Court or a High Court. (2) A Court shall have power to punish any person who- a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; (b) scandalizes the Court, or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; (c) does anything which tends to prejudice the determination of a matter pending before the Court; or (d) does any other thing which, by law, constitutes contempt of the Court. (3) 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." It would be observed that in accordance with this article any person who scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt is guilty of contempt of Court. There is no exception here as regards the right of a litigant to make allegations against the Judge, if he believes that he will not have a fair trial. All that is needed for constituting contempt p is that words having the effect stated above be used. The article does not refer to any privileged occasion. The utmost that could be urged was that if a person was entitled under the law to make a certain allegation Article 123 would not apply to his case. But assuming the correctness of such an interpretation there will have to be some provision which authorises a person to make a particular allegation if the plea of privilege is to succeed. Is there any provisions of law which expressly or impliedly entitles a litigant to make allegations of partiality? There is no such provision. An allegation of partiality could have been made in an application for transfer, if an application for transfer was competent on the ground that a fair trial could not be held by the Judge. But an application for transfer does not lie at all against a Judge of the High Court. This fact by itself establishes the distinction that the law makes between superior and, inferior Courts. Against a Judge of an inferior Court an application for transfer can be filed on the ground that the litigant reasonably believes he cannot have a fair trial before him. But there is no such provision with respect to Judges of the High Court or the Supreme Court. There used to be a provision in the Civil Procedure Code, that is, section 25 fin accordance with which if a High Court was constituted by one Judge only a case could be transferred to another High Court by the Provincial Government on the report of the Judge himself. That section has now been repealed, but it is to be noted that it was only if the Judge himself reported that the case should be transferred from him, that the Provincial Government could pass an order of transfer. Q As pointed out by Munir, C. J. in Israr Hussain v. The Crown (1) P L D 1954 F C 313 this section was really intended for cases where the Judge himself felt embarrassed. To remove any misapprehension let me state that the Chief Justice of a High Court has no jurisdiction to transfer a case from one to another. He may have a power of distribution of business. As a matter of fact the Chief Justice of the High R Court of West Pakistan (I have consulted the rules and orders) does not even possess such power as it is only the Deputy Registrar who can mark the case to a particular Judge. Bu assuming that he has -the power of distribution that is an entirely different power from the power of transfer. The power of distribution is possessed even by Senior Civil Judges under the Punjab Courts Act, but they cannot transfer a case from one Civil Judge to another. In transfer applications there has to be a judicial determination as to whether the Judge who is hearings the case is a fit person to hear it and this decision has to be given after notice to the parties concerned. The Chief Justice has no jurisdiction to decide whether a particular Judge is a fit person to hear a case either because he is connected with a party or because there are other grounds which make it undesirable that he should hear the case. It is clear that there is no proceeding in which the litigant may make an allegation that the Judge is partial or, incapable of holding a fair trial. Of course what he can do is that if there be circumstances which cast no aspersions on the Judge, but on T account of which it is proper that the Judge should refrain from hearing the case he can bring those circumstances to the notice of the Judge. There are two kinds of cases where it may be said that there is a technical disqualification. The Judge may have already in some other proceedings expressed his opinion or dealt with the same case. For instance a Judge of the Supreme Court may have dealt with that case in the High Court or a Judge of the High Court may have dealt with the case when he was a Sessions Judge or he may have expressed an opinion with respect to the case as an Advocate-General or Law Secretary. The other category is where a Judge has a pecuniary or proprietary interest in the subject-matter of the proceedings. He may himself be a shareholder in a company which is a party to the proceedings. When these circumstances are brought to the notice of the Judge he may refuse to deal with the case: But all that the party can do is to bring the facts to his notice. Before ending this discussion I must state I have had two surprises in this case. I was surprised when a serious argument was put forward that a Judge could be maligned by a party if the party had reasonable grounds for doing so. I was also surprised at the insistence of the learned Judges of the High Court to hear the case after it had been brought to their notice that there were circumstances making it undesirable that the case should be heard by them. What has been happening in the past is that whenever facts were brought to the notice of a Judge which contained the slightest objection to his hearing a case he always declined to do so. It is possible that the learned Judges who heard the case U under reference were annoyed at the way the objection was taken. But even in that case I would have expected them to refrain from hearing the case themselves while on the other hand they may have taken proceedings for contempt against the party for the improper manner in which the objection was made. I am agreeing in the order that has been proposed for I do find circumstances on account of which it would be proper to reduce the sentence. HAMOODUR RAHMAN, J.-I concur with the order proposed to be made by my Lord the Chief Justice in this case as also with the reasons given by him, but regret my inability to subscribe fully to the general propositions laid down by him. In my humble opinion the propositions are too widely worded and need some further qualification. Even though a litigant oil his counsel has a right to raise a plea of bias in the face of the, Court, it must be remembered that there is an equally important duty cast upon all persons, whether parties or not, to refrain from saying or doing r anything which might have the effect of scandalizing the Court or imputing to it motives or judicial dishonesty or holding, up its conduct to ridicule. The omission to observe this salutary restraint would equally expose the person responsible for doing any act calculated to bring about any of the aforesaid harmful tendencies to the liability for committal for contempt of Court. If this qualification is 'not added, I apprehend that the administration of justice would be made extremely difficult, for Judges would then be exposed to all kinds of attacks and onslaughts by parties to causes pending in their Courts and the counsel engaged in them, and this can hardly be considered to be free from the danger of impairing the public's confidence in the administration of justice. Even a few instances of grave and scandalous charges or of imputations of prejudice or unfairness may be sufficient to bring the judiciary into public ridicule. In my opinion, therefore, even when a litigant or a counsel has an occasion to ask for a legal redress or relief of the nature contemplated by raising a plea of bias, it should not be allowed to be turned into an occasion for defaming or scandalizing a Judge. It is in the public interest that anything, which constitutes an obstruction to the administration of justice or has the tendency of undermining the confidence of the litigant public in it, must be scrupulously avoided. I would, therefore, like to add a further proposition to those adumbrated by my Lord the Chief Justice :- "When such a plea of bias is raised it should be remembered that nothing should be said or done which scandalizes the Judge or judge, as the case may be, or imputes motives or judicial dishonesty or is calculated to undermine the confidence of the public or lower the authority of the Court or obstruct, or interfere with the administration of justice. Normally it should be sufficient to state only the facts necessary to show the bias, Exceeding these limits will expose the lay litigant as well as his counsel, who repeats these statements in Court, to punishment for contempt," The qualification I have suggested above appears to me to be also in accord with the principle laid down by the Federal Court in the case of S. M. Haq v. The Hon'ble Judges of the High Court of Judicature at Lahore (1) P L D 1953 F C 247, where it was observed that when counsel are in the discharge of their duties towards their clients faced with the necessity of criticising the conduct of a lower Court in a superior Court "no words employed can be too strong" provided this is done "with the single purpose of aiding in the due dispensation of justice" and if "it is also borne in mind that so far as possible, no words should be used which gratuitously bring disrepute to, or belittle, the Judges or the Court whose work is being criticised". My Lord was himself a party to this decision and I too respectfully agree with the above principle which applies, in my view, with equal force to the case of a plea of bias. In raising this plea also I would say that "the limits of reasonable expression" must neither be transgressed nor the bounds of decorum exceeded. With the above qualification I would have no objection to the propositions propounded by my Lord the Chief Justice. A. H. Sentences reduced.