P L D 1961 Supreme Court 237 (PLP)

CORNELIUS, C. J.‑This is the appeal of Sir Edward Snelson, Secretary in the Central Pakistan Ministry of Law, against his con viction by the High Court of West Pakistan at Lahore for a crimi nal contempt. The jurisdiction of superior Courts of Record in contempt derives from the Common Law of England, where no appeal is provided, but in Pakistan, by Article 159 of the late Constitution, which may be thought to be continued in force by Article 2 (1) of the Laws (Continuance in Force) Order, 1958, a statutory appeal is provided to this Court from any judgment of a High Court by which a punishment has been imposed on any person for contempt of that High Court. In this case, the appellant has been subjected to a fine of Rs. 2,000, in consequence of the convic tion. The case has been argued before us at length by learned counsel firstly, on behalf of Sir Edward Snelson, secondly, on behalf of the Central Government of Pakistan, which was joined as a party to the proceeding in the High Court at its own request, and thirdly, by Mr. Mahmud Ali, a senior Barrister of Lahore, who was invited to assist the Court in the same manner as he had assisted in the High Court. These learned counsel have endea voured to clarify to the best of their ability the facts pertinent to the alleged libel upon the High Court, and the principles of law as they appear from the relevant precedents. The case presented appears to be unique in the annals of even so well‑documented a branch of law as that dealing with contempt of Courts. It possesses unique features of difficulty, owing to the patent fact that it arises out of a conflict of views regarding certain constitutional powers of the Government in relation to its own servants, between two high legal authorities which are not subordi nate the one to the other. It may fairly be assumed that the appellant in his position as the head of the Ministry of law under the Minister and through his long association with that Ministry over a decade marked by successive constitutional crises and pro longed effort for the hammering out of a Constitution which since the events of October 1958, remains in a state which may be best described as "controlled animation", is entitled to speak with knowledge of the intentions and initiatives taken by the Govern ment in relation to these matters. The conflict has found expression in a series of cases fought out in the High Court and in particular in the High Court of West Pakistan at Lahore ever since the Con stitution of 1956 came into force. Very nearly all of these cases lay within the writ jurisdiction of the High Court, and many of them were continued in appeal up to the Supreme Court. They involved questions of no small difficulty. That which' is relevant here is the amenability of the Central Government to the writ jurisdiction, in its control over its own servants. At a later stage in this judgment I shall attempt to examine certain aspects of this conflict. But it is essential to a proper appreciation of the present proceedings that it should be understood that they do not involve any examination of the merits, much less any determination, of those rival contentions. The case falls very precisely within the confines of the law of contempt of Court, in that aspect of it which is defined as scandalization of the Courts. The offence is in essential respects cognate to the legal wrongs described as libel and slander. The narrative of the events which led up to the issue of the writ to the Law Secretary may be stated in relation to the procedure appropriate in a case of libel, in the following manner. On the 10th October 1960, the Secretariat of the Provincial Government of West Pakistan forwarded to the "Registrar, High Court of West Pakistan, Lahore, for information" a copy of a letter which had been received from the Director of Training in the President's Secretariat in the Central Government of Pakistan together with a copy of a pamphlet entitled "The Transitional Constitution of 1958". The letter from the Director of Training merely forwarded to the West Pakistan Government, 25 copies of the pamphlet, adding that it comprised "the text of a talk given, under the aus pices of this Institute, by Sir Edward, Snelson, K.B. E., Secretary, Ministry of Law, to Section Officers at Rawalpindi in February, 1960, on the Laws (Continuance in force) Order, and certain other Orders of a Constitutional nature". This pamphlet contained reprints of the following, viz. (1) Operative part of the proclamation of the 7th October 1958 (2) The Laws (Continuance in Force) Order, 1958 ; (3) The Government (Presidential Cabinet) Order, 1958 ; (4) The State Arrangements Order, 1959 ; (5) The Presidential (Election and Constitution) Order, 1960, and ' (6) the Oath taken by the President on assumption of the office on 17th February 1960, as duly elected President. It was prefaced by the text of the appellant's talk covering 4j printed pages. The talk commenced with mention, of the abrogation of the Constitution of 1956 on the 7th October 1958, and the opinion was expressed that all institutions under the Constitution suffered an immediate dissolution. Martial Law was simultaneously declared and although Martial Law Regulations were immediately issued, they could not operate to save the country's institutions including the Armed Forces from the general dissolution. Only the Presi dency remained as an entity, and the Law Secretary took the opportunity of mentioning, without citing the decision of the Federal Court in the well‑known case of Tamizuddin Khan ((1955) 1 F C R 155=P L D 1955 F C 240), whereby the view of the Law Ministry that sovereignty resided, not in the then Constituent Assembly, which bad been the prevailing view up to then,, but in the then Governor‑General, was vindicated. The duty of the Governor‑General under the then Constitution to carry the ultimate responsibility of acting to save the country later fell upon the President elected under the 1.956 Constitution and it was that duty which he performed in abrogating the Constitution on the 7th October 1958. Unlike the situation in 1954 when the Governor‑General dissolved the Constituent Assembly, on this occasion there was no challenge to the action of the President. To fill the constitutional void, the President made an order of a constitutional nature, namely, the Laws (Continuance in Force) Order, 1958, (hereinafter referred to as `the Laws Order') which had successfully provided "the legal means of governing the country from that day to this". It was then mentioned that with the excep tion of the Legislatures, which remained dissolved, all other consti tutional institutions were restored including the Central Government and the Provincial Governments. Legislative barriers between the Centre and the Provinces were over‑passed by bringing all matters that had been in the Provincial List into the Concurrent List, thus giving the Centre authority to legislate over the entire field, and applying a Central Control over the alteration by Provinces of laws within their sphere. Next, mention was made of article 4 by which existing laws were retained in force, and power was given to the President to adapt them, it being explained that this was neces sary in order to translate them "as it were into present day terms" In due time they would require further adaptation when a new Constitution was brought into force. Immediately thereafter, the speaker took up discussion of the writs, which are dealt with in Article 2 of the Laws Order. The discussion is contained in a paragraph of about 400 words which will be reproduced in full later. It is followed by a somewhat shorter paragraph in which Article 6 of the Laws Order is discussed, and special reference is made to the power of the President, which was made clear by an amendment, to grant extensions of service to public servants. It is in these two paragraphs that the offensive matter which forms the foundation of the conviction is contained. The talk continues thereafter with mention of the Government (Presidential Cabinet) Order, 1959 and the other Orders mentioned above, each being discussed clearly and succinctly. Advantage was again taken of the opportunity to stress another instance in which the Law Ministry's view had ultimately prevailed, viz., as to the arrangements in law rendered necessary when the President might happen to be out of the country. It was mentioned that the Law Ministry had always taken the view that under the Government of India Act, 1935 when the Governor‑General left the country, there must be someone acting for him from "the moment he crossed the border", but this had not been accepted and certain consequences of violation had had to be corrected by legislation. Provisions had therefore been made in the 1956 Constitution to meet such a contingency and in the State Arrangements Order, 1959 also there was such provision, authorising the senior Minister to exercise the functions of the President when the President goes abroad. Brief references were made to the provisions for securing the succession to the Presidency in case of a vacancy, and to the Elective Bodies (Disqualification) Order, 1959. Then in two paragraphs the speaker dealt at some ‑ what greater length with the Presidential (Election and Constitution Order, 1960; he mentioned that the election of the President which had taken place shortly before had been on the basis of leaving it to the electorate to state freely whether they wished to vote for the President or against him, and to this the speaker attached signifi cance. Referring to the ceremony of the 17th February 1960 at which the President having been duly elected under the order took the path of office, the speaker said that this would make the President "a different kind of President . . . . because his tenure then will have its basis in the vote of confidence". He mentioned that the Order in question gave the President authority to take all steps necessary for the making of a Constitution, and had the effect of making him President until "the new Constitution, and, in continuation, for the first term of the Presidency under that Constitution". Finally, he asked the hearers to be guided in their views by "what the President says on any question about the new Constitution" giving as the reason that a good deal would be said, but the key was to be found "where the authority and the responsibility have been fixed". The entire talk is expressed in language such as one would expect from an experienced and capable Secretary in a law Ministry. The diction is uniformly maintained on a high level, and the treatment of every subject is succinct and precise. It cannot be urged, and no attempt has been made to urge, that any single word was used in this talk except with full understanding of its meaning and implications. The talk, as a whole, conveys the impression of farm adherence to strict legality in high constitu tional matters, and if a search be made for an underlying philoso phy, that might be found in the insistence upon a single, undivided sovereign standing at the apex of the structure of Government. When asked in the High Court if he could not have expressed his views about the High Court in terms which did not amount to ridicule, Sir Edward Snelson (to whom I shall hereafter refer as the Law Secretary) replied :‑ "I had to write the talk in the midst of pressing official pre occupations. Had I had more time I might have used different language, but nothing in the language I have used was meant in any way to ridicule or to be derogatory to the High Court." It is of the essence of a libel that it tends to lower a person in the estimation of right‑thinking men. Something in the nature of disparagement is necessary to constitute a libel. Generally, a libel carries something of the flavour of abuse, but that cannot be said in the present case. The entire talk including the passages to which exception has been taken is couched in language appropriate to the occasion and to the subject. Yet, it is possible that the mischief of disparagement may be effected without resort to any abuse or other display of malice by distortion of language. In relation to a person's office, it is a libel to impute any unfitness or want of ability to discharge his duties. Thus, it is libellous to impute total igno rance of law to a barrister. In cases of this kind, no proof of special damage is necessary, "special damage" meaning, in the context, some actual temporal loss. In the present case, the Judgments of the High Court find that the observations contained in the offending passages are libellous in relation to their office, or rather to the High Court as a whole. Thus, in the leading judgment of Mr. Justice Shabir Ahmad, the learned Judge has drawn the follow ing conclusions :‑ (a) "the respondent wanted to tell his audience that the High Court in Pakistan were manned by incompetent people who did not understand a branch of law which they had been administer ing for about five years," (b) "Any one reading the pamphlet would think that the mean ing of the Talk, patent at some places and latent at some, was that the Judges of the High Courts were either half‑witted persons who did not understand the law or persons who deliberately misinterpreted it." (c) "I am clearly of the view that the tone of both the para graphs of the Talk which are under consideration was offensive." Mr. Justice Ortcheson gave the following estimate of the effect of the libel upon "hearers and readers", viz. :‑ "that the High Courts were either so incompetent as to be incapable of appreciating so obvious a fact as that a writ is a writ, or so contumacious that in spite of the steps taken by the Government of Pakistan to put matters right and very severe observations by the Supreme Court, they refused to confine themselves to the limits of their legitimate jurisdiction. It fur ther cannot be denied that the result of such an impression must be to bring the High Courts into contempt and to lower their authority, it being obviously impossible for any right thinking person to respect a Court which is either inefficient or actuated by improper motives." The conclusion of Mr. Justice M. Yaqub Ali is in the follow ing words :‑ "The above analysis of paragraphs 9 and 10 shows what deep -rooted contempt the respondent has for High Courts of his country, and in giving the talk he certainly wanted to impart it to his audience, for what respect could one have for a Court which knowingly exceeds its jurisdiction to `interfere with the Government resulting in uncertainty with all the public con fusion and private misery'; a Court which is neither amenable to civility nor to `severe observations by the Supreme Court'; a Court which has caused extensive loss to public exchequer by giving numerous incorrect decisions against which the Government had to appeal a large number of times; a Court presided over by Judges who were unable to understand even the simple truth that `a writ is a writ'. Could there be a more severe indictment of this Court at the hands of a person no less than the Secretary, Ministry of Law, Government of Pakis tan? In his statement before us the respondent laid claim, to hold his own opinion about the judgments of this Court. Assuming that he had such a right, why share it with half a million civil servants? In doing so, was he not weakening their will to carry out the decrees, orders, injunctions and writs issued by the High Courts?" In the order by which the Court directed notice to issue to the Law Secretary, the mischief of the talk he had given was described in the following words, viz., that it contained matter‑ "which is calculated to lower this Court in the eyes of all those who heard the Talk as well as of those who read the pamphlet and to undermine the authority of this Court." It is clear that although the language used by the learned Judges in stating their conclusions does not follow precisely the pattern laid in the notice, yet their conclusions were in accordance with the charges, and bearing in mind the established principle that any person who engages in the publication of a libel is Prima facie liable in law whether or not he himself be the fabricator of the libel, it is to my mind surprising that the High Court did not feel it necessary to call upon the Provincial Government to explain why it had thought fit to forward a copy of this libel to the High Court. To send it to the Registrar, the principal administrative officer of the High Court, is in substance equivalent to sending it to the Judges themselves. The pamphlet contained reproduction of a number of statutory instruments of which copies were already available to the High Court. From the viewpoint of the 'intended recipient, the only new matter contained in the pamphlet was the prefatory talk by the Law Secretary, and it being the view of the High Court that this talk contained matter by which the Court was disparaged and its authority undermined, there was good reason for considering the action of the Provincial Government 'as a cold and gratuitous insult. A publisher of a libel who is not himself a fabricator can seek refuge from the consequences, in pleas of ignorance as to the contents of the matter he published, (but not if this were due to negligence) or he may plead that the article was of a character which was not likely to contain a libel. Whether or not these defences were available to the Provincial Government is mere speculation in the circumstances, but it may be mentioned here that at the commencement of the hearing, the Advocate‑General of West Pakistan made a request to the Court for a week's adjournment "to enable the Provincial Government to decide whether or not to appear in this case." The Court rejected the request thinking that the Advocate‑General had had enough notice of the hearing. Such notice was, as appear from the leading judgment of Mr. Justice Shabir Ahmad, issued in compliance with a previously communicated decision of the Provincial Government that in contempt cases their Advocate General and other leading Law Officers would appear in the High Court on behalf of the Court. It appears that this has been the cause of some misunderstanding. In the leading judgment, it is said that the adjournment was requested so that the Provincial Government could decide whether or not the Advocate‑General should appear in the case, while in that of Mr. Justice M. Yaqub Ali, it is stated that the Court "allowed the Advocate‑General to withdraw from the proceedings." But in all the circumstances, it would have been far more plainly consistent with the procedure and principles applicable to the investigation of matters in libel if the Provincial Government had been allowed to be joined in the case as a party. Much more severe observations were made in the leading judgment regarding the action of the Central Government which made application to be joined as a party in advance of the first hearing. Now, under the principle already mentioned, the Government of Pakistan had clearly participated in the publication of the allegedly libellous statement. Though it might not have been instrumental in determining the content of the talk given by the Law Secretary, yet it had certainly procured that talk by him which was given to an audience of 80 persons, and it had by direct action given greatly increased publicity to that talk, for it is admitted that 2,000 copies of the pamphlet were printed and circulated, at the instance of the Central Government. When the Attorney‑General made his application for the Central Government to be joined as a party, the following order was made by Mr. Justice Shabir Ahmad :‑ "This is very good because the Court would like to have the views by the Central Government also. I would have issued the notice to the Attorney‑General in the first instance, but as‑` he is not a Law Officer of the Provincial Government I refrained from doing so." The order indicates that as in the case of the Provincial Advocate‑General, the Court was thinking in terms of the Attorney General being of assistance in clarifying the case. It was however patent that each of these Law Officers was contemplating that his Government should be joined as a party in the case. If the nature of the case and of the principles governing procedure and liability in cases of libel had been borne in mind, there would have been no difficulty in joining both Governments in the array of parties defending the notice issued by the High Court, for prima facie, their responsibility was clear, subject to any defence that they may have been able to raise. In the event, there was no explanation of the conduct of the Provincial Government so long as the case was in the High Court. In response to a suggestion by this Court, on the third day of the hearing of the appeal, the Central Government through the Law Secretary submitted an apology for the action of sending the pamphlet to the High Court, in which it was stated that the West Pakistan Government "apparently without adverting to 'the para graphs in question distributed a copy to the High Court, as a matter of routine." As a statement of fact that cannot be accepted from the Law Secretary, who cannot speak with knowledge of affairs belonging strictly to the Government of West Pakistan. Therefore, whether the forwarding of the pamphlet to the High Court by the West Pakistan Government was an act of inadvertence or otherwise still remains a moot point. It may have assisted in a more smooth progress of the proceeding in the High Court if this matter had received attention at the earliest stage, and it had been made the subject of a similar apology on behalf of the Provincial Government as well as the other parties to the case, but as the matter stands, it is clear that the explanation furnished is inadequate, and the matter therefore falls to be dealt with as ii no such explanation had been furnished. The apology made by the Central Government is in relation to a breach of courtesy" for which it is itself not responsible. In the premises, the apology itself is without effect. Having been permitted to be joined as a party, the Central Government through the Attorney‑General submitted a written statement at the commencement of the hearing which is in two short paragraphs containing the following submissions viz. (1) that the talk was given by Sir Edward Snelson in his official capacity ; (2) that it was exclusively meant for officers and no part of it could be disclosed to the public in view of the provisions of the Official Secrets Act, 1923 ; (3) that when the speech was printed later, copies were supplied only to certain offices of the Government ; (4) that no official to whom this speech was addressed or to whom copies were sent could under the law communicate it to the public ; and (5) so far as the Central Government was aware, the public at large did not learn of the speech "till it appeared in the press as an enclosure to the notice for contempt issued to Sir Edward Snelson." In the leading judgment of Mr. Justice Shabir Ahmad, this statement has been interpreted to mean an imputation that the Judges had cotravened the provisions of the Official Secrets Act of 1923, that the threat of prosecution under the Official Secrets Act was being held over the heads of the Judges as a sword of Damocles, that the person who put in the written statement on behalf of the Central Government "was either entirely ignorant of the law relating to contempt of Court or else had scant regard for it", that it was "of no small regret" that such a statement should have been presented in a case relating to a Ministry presided over as Minister of Law by an ex‑Judge of a High Court in Pakistan, and the following conclusion regarding the action of the Pakistan Government was expressed, viz. :‑ "If any one were to describe the written statement put in on behalf of the Pakistan Government as the least law respecting document ever presented by a reasonable party before a Court of Law of any civilised country, he would not be held by an impartial critic to have indulged in mis-description." It appears that the Court insistently required the Attorney -General to disclose the name of the person who had directed him to put in the written statement on behalf of the Central Govern ment, and that eventually the Attorney‑General did not disclose this name, but simply replied that he acted under the orders of the Central Government. The learned senior Judge, reproducing a quotation, whose authenticity has never been free of doubt, purpor ting to report the treatment by Chief Justice Gascoigne of the Prince who later became Henry the Fifth of England, viz., that he committed him to the prison of the King's Bench Division on account of his insulting behaviour in Court, went on to say that if the name of the person who had inspired the Central Govern ment's written statement had been mentioned to him:- "I would have unhesitatingly dealt with the person in the same manner in which Lord Chief Justice Gascoigne had dealt with the Prince of Wales." The learned Judge added the belief that even if the offender had been a Cabinet Minister, his action against him would have received from the Head of the State of Pakistan the same com mendation as that of Chief Justice Gascoigne is said to have received from the King whose heir had been committed for contempt. There follow in the judgment of the learned Judge three further paragraphs conveying his sense of displeasure at the attitude which he thought had been taken by the Attorney‑General and the Pakistan. Government. The judgment of Mr. Justice Ortcheson contains no reference to these matters, but Mr. Justice M. Yaqub Ali commented upon the action of the State, in 'whose name the notice was issued to the respondent, wanting to make a "common cause" with him. In a later paragraph, the learned Judge referred to the mention of the Official Secrets Act in the Central Government written statement and asked whether it was "dragged in as a veiled threat to this Court for publication of the contents of . . . . . the talk" and answered the question by saying that "if this was then the intention and in vain did we ask the Attorney‑General more than once to name the person under whose instructions the written statement was drafted", this action "in itself constituted a worst form of contempt of Court calculated to undermine the Rule of Law, not the Rule of Courts, in this country, and on which the entire fabric of a civilised society rests." The record does not enable one to visualize the actual situation in the High Court so as to be able to appreciate more fully how it has come about that a written statement by the Central Government, which seems to have been very cautiously worded, and naturally so, since notice had not been sent to that Government, should have been almost without qualification construed as containing a threat of prosecution to the Judges. It was true that the offending passages had been placed before the public at large through the action of the High Court, but that did not prevent the Central Government, whose liability in the case would necessarily rest upon the part which it had taken in the publication of the offending matter, from pointing out, with care, that the publicity for which it was responsible was of a very limited type, being confined to officials only, who themselves were through the sanctions of the Official Secrets Act, under a duty to keep what they had heard and read to themselves. On a plain reading of the written statement, it seems to me that that was the purport and intention of the Central Government, in other words to plead that its liability must be judged on the basis inter alia that the publication for which it could be held responsible was such as safeguarded against the possibility of the matter derogatory to the nigh Court going before the public at large. The expres sions used in two of the judgments from which I have quoted short extracts exhibit clearly the extent to which the minds of the learned Judges were affected by the interpretation which they had placed upon the Central Government's written statements. As I have said, things may have happened at the hearing before the High Court, which do not appear from the record of this appeal, and which may justify acceptance of the interpretation of the document most injurious to the Attorney‑General, to the Minister and to the Central Government. But I think I should say that it is a matter of regret that the proceedings in the case should have been prefaced by an incident of this kind, in which one of the Judges has found! "the worst form of contempt calculated to undermine the Rule of Law", and another in an oblique statement which would have` been much better stated in a direct form, has found the written statement to be "the least Law respecting document ever presented by a responsible party before a Court of Law of any civilised country." With respect to the learned Judges, upon the record before me, I find it impossible to subscribe to these views. In matters of contempt where the High Court sits as prosecutor and Judge and jury in relation to a libel of itself, it is of the utmost import ance that this special position should be exactly and delicately appreciated and that nothing should be allowed to interfere with the capacity of the Court to do true justice in the case. The incident affecting the Attorney‑General in the case before the High Court was in my view one which, as it developed, was calculated to create prejudice in the mind of the Court. The absence of such prejudice would have appeared clearly if in the judgments there had been any treatment of the possible interpreta tion of the Central Government's written statement which I have indicated above. I find no reference in the two judgments in question with regard to the written statement in any other light than as a threat of action under the Official Secrets Act against the Judges of the High Court. I find it difficult to conceive of any such proceedings ever being commenced, and it seems patent, bearing in mind the nature and quality of the document in question, that it was not of a nature which could justify so startling a pro ceeding, quite apart from the question whether such a proceeding could at all be framed. Therefore, I regard it as a matter of acute regret, that so much attention should have been devoted to this matter in the High Court, and that it should have received expanded treatment in two of the judgments under consideration, part of it couched in language which does not suffer from excess of restraint. In all the circumstances both with respect to the Provincial Government as well as the Central Government, the whole matter would have been susceptible of much clearer and more exact treat ment, if following the ordinary rules of liability with regard to the publication of the libels, both the Governments had been joined along with the Law Secretary as respondents. They then would have been in a position to state their standpoints with fullness and accuracy and the occasion for adverse criticism of their respective Law Officers might not have arisen, and at the same time the possibility of the Court approaching the true question for decision in the case with minds free of all extraneous prejudice could have been more safely assured. I now proceed to examine those questions and for that purpose it is necessary to reproduce the offending passages from the speech. They are as follows :‑ "I think everybody has heard about the writs or, as the Law Ministry prefers to call them‑to indicate the source of the power‑the prerogative writs. Between 1956 and 1958 the High Courts had used the language of the 1956 Constitution with its reference to orders and directions in the nature of writs to claim a jurisdiction to interfere with the Government itself without reference to the strictly defined frontiers of the preroga tive writs. A Court can issue a writ only because the sovereign function is to that extent delegated to it by the Sovereign, that is to say, by the State. Clearly the delegate cannot exercise the power against the sovereign itself, and that has been made clear over centuries of decisions by the Courts in England where the writs first originated by delegation from the King, and this has beep followed in the United States, where the sovereign power descended to the people and is exercised in their name by the President. As an American Judge recently said : "There cannot be two sovereigns, and the sovereign will not issue a. prerogative writ against itself." The Law Ministry has to appeal a large number of times to the Supreme Court to have the position properly 'established, and has succeeded in every appeal but one. All this has cost a very great deal of money. and to try and put the situation right without having to spend more money on more appeals a clause was inserted in the Order we are discussing giving the High Courts the power to issue the named `writs' (not `orders or directions' and so on, but writs) of mandamus and the rest. This was to indicate, as politely as possible, that a writ was a writ, confined to known limits; and the limits could not be exceeded. I have to confess that even with this civility, we have not entirely succeeded even yet but this clause on the one side, and some very severe observa tions by the Supreme Court on the other, have at least had the effect of indicating that after all there are limits and that the limits must be observed. The great thing, in any orderly system of Government (and without orderliness there is chaos) is that every organ of the Government should be best adapted to the work it has to do and should know what that work is and what its own frontiers are. This avoids duplications. It avoids frictions. It prevents usurpation of function and consequent uncertainty, with all the public confusion and, private misery that it can lead to." "I apologize for taking up so much time over this Order, but on it the whole fabric, of the constitutional government of the country rests until we have the new Constitution. Perhaps you would have wished me to say something about the services; seeing that what was originally a single paragraph, Article 6; has now been increased to a further six paragraphs, some modifying the terms and conditions of service already guaran teed‑but not all : one of the additions establishes the power to grant extensions of service, a power which was denied by the High Court. We have never been able to understand the judgment : we would, of course, have appealed against it, and I have no doubt we should have succeeded, but there was no time‑a certain loan from abroad was made conditional up the continued retention of certain people, and since the High Court had denied the power to retain, and we could not wais for the months an appeal would take, the existence of the power was formally asserted in an Explanation. We chose this particular way of doing things, if you are interested to know, so as not to concede that the power had to be created : we took it for granted that, notwithstanding the judgment, and in order not to prejudice our appeal if we ultimately did appeal in any other case, the power does exist." As has been mentioned the High Court on a first reading considered that these passages contained matter calculated to lower the Court in the eyes of all those who heard or read the talk gad to undermine the authority of the Court. In a written statement presented before the commencement of the hearing, the Law Secretary put forward the following explanation, viz:- "(1) he was invited by the President's Secretariat as the Principal Law Officer of the Central Government to give a talk to the Section Officers attached to the Central Government upon the purpose and effect of the abrogation of the 1956 Constitution and the various Presidential Orders of a constitutional nature which have since then been passed. Later, his permission was sought for the printing and publication of this talk by the Establishment Division of the President's Secretariat, on the ground that Section Officers at places other than Rawalpindi "who had to take a Departmental examination" wished to have the benefit of the talk as an‑exposition presumably of the con stitutional position. The respondent agreed to the talk being published on the express understanding that "printed copies shall not go outside Government circles", and accordingly, the pamphlet was described "for official use only" ; (2) the paragraphs which had given offence "were explanatory of the change in the wording of clause (4) of Article 2 of the Laws (Continuance in Force) Order 1958, in juxta‑position to the corresponding provisions .of the late Constitution, and to the latest amendment in Article 6, and the reasons which necessitated these changes" ; (3) he had referred to the difficulty created when "different organs of the Government over‑stepped their legitimate juris dictions", and in that context he mentioned the first Constituent Assembly and also the High Courts without special reference to the Lahore High Court. He had done this in order to impress upon his hearers "the importance of keeping within their respective spheres " (4) the subject‑matter of the paragraphs did not exceed, the limits of "legitimate criticism of official acts including judgments of Courts of justice" as applicable to progressive societies, where such criticism is always treated with consideration and favour. Support was sought from the dictum of Lord Atkin in the Privy Council, in the case of Ambard A I R 1936 P C

141. It was submitted that the respondent's observations were made entirely in good faith, in the public interest, in discharge of official duty, and he had "no intention whatsoever to scandalize or bring into contempt the authority of this or any other High Court in the country." In the course of his viva voce examination, the respondent elaborated somewhat upon the submissions in, his written statement. A few days after the hearing before the High Court he swore an affidavit in which he clarified that the reference in paragraph 9 to appeals filed by the Law Ministry "to have the position properly established" was "to appeals concerning service matters as will appear from my statement before the Court in which I spoke of disarray caused by writs sought by Government servants". In a statement in Court, when asked what was the central idea expressed in the two offending paragraphs, the respondent replied. "Put briefly, I would say that the writs as they have been issued have caused a great deal of disarray in the Government discipline of its subordinate services and I 'wished to point out ' how serious all this matter was and what steps the Government had tried to take to put an end to that disarray." When asked whether the offending matter was not calculated to create a feeling of revulsion and contempt towards the High Court, he replied :‑ "I would not have said so. My object was to inform the Section Officers of the divergent views between the Government and the High Court and the steps taken by the Government to bring these divergencies to an end." In Court, on behalf of the respondent the defences taken were those of fair comment on a matter of public importance, and that the speech was made on a privileged occasion in discharge of official duties. It will be convenient here to consider the nature of the legal wrongs described as slander and libel. Slander is, defamation by words or in some transitory or fugitive form. It is actionable where the matter is calculated to disparage the plaintiff in ‑regard to his office, profession, etc., without proof of special damage. Libel is disparagement in some permanent form such as in writing, and has been most comprehensively defined as action which has the effect of lowering a person in the estimation of right‑thinking men. It is necessary for the purposes of an accusation of slander and libel that the person defamed should be identified. At one stage in the present case, the submission was tentatively made that the High Court of West Pakistan which had issued the notice was not specifically identified as the object of the alleged libel. The law on the subject is that where the collectivity is limited or restricted, there the necessity for identifying the object of disparagement is not absolute. In Pakistan there are only two High Courts, and moreover, there is sufficient material on the record which can bear the conclusion that the main reference in the offending paragraphs is to the High Court/ of West Pakistan. Paragraph 10 refers specifically to a case which has been identified as the case of one A. R. Azar reported in (P L D 1958 Lah. 185). From the pleadings it clearly appears that there is no case to which paragraph 9 has relevancy which has not been decided by the High Court of West Pakistan. There fore, the question of contusion or mistake of identity of the party defamed cannot be raised in this case. In considering libellous matter, certain principles are followed by the Court. One is that matter which is in its nature defamatory is presumed to be false until the contrary is shown to be the truth. Another principle is that in construing the matter alleged to be defamatory, no mitigation of its natural meaning by construction is permissible. The words must be given their full, natural and ordinary meaning as a reasonable man of ordinary prudence would be likely to understand them. They must be taken as a whole in their context anal it should be clearly borne in mind that the slander and the damage consists in the apprehension of the hearer or other person to whom the libel is communicated. The meaning in which the words were intended by the author to be understood is immaterial. Again, words may be on the surface innocent, but e they may carry a secondary or special sense regard being had to the occasion, to the quality of persons to whom they are addressed, and to the circumstances affecting their meaning. e In such a special sense they may have a disparaging effect even though on a plain reading no defamation appears. Therefore, to avoid the imputation of disparagement, it is clear that not only must the words in their natural and ordinary meaning be innocent, but there should be no secondary sense imported by circumstances which would bring them within the mischief of defamation. The case is thus somewhat different from that of an accused person under the criminal law which presumes his innocence, and places the entire burden upon the accuser to establish his accusa tion. Here, the words by themselves place the onus upon the person charged, provided that they are prima facie defamatory, or special circumstances are shown, which give them a disparaging character. It can be easily seen that where the disparagement is of a High Court, this principle would require to be applied with even greater strictness than in the case of a private individual. That is because of the paramount importance which must be given by every organ of a civilized Government, in which the administration of justice is retained as an integral part of the machinery, to secure the Courts, and in particular the superior Courts of Record from all attempts to interfere with them in the administration of justice. The power of committal for contempt is given to such superior Courts in order that they may swiftly and summarily perform one of their most important duties which is to protect themselves against wilful disregard or disobedience of their authority, by visiting with prompt punishment any conduct which tends to bring their authority and the administration of justice into scorn or disregard. It is evident that a Court of justice which has no power to vindicate its dignity or which having the power fails to perform the duty of vindicating its dignity would swiftly lose all hold upon the public respect and in consequence the maintenance of law and order through the agency of the Courts of justice would be rendered impossible. The dignity and authority of the Courts has a link with the supremacy and majesty of the law. Any conduct which is calculated to diminish that dignity or authority is a criminal contempt which a Court is under duty to punish. The Courts of justice are a creation of the sovereign authority, but their mainstay rests in the public confidence, and anything which is calculated to withdraw the public confidence from them has the character of a libel to be. visited by action in contempt. It is thus that, while in the ordinary functioning of the Courts it is a principle of absolute application that no person shall be a Judge in his own case, yet when the attack is laid at the very foundation upon which the structure of justice rests, there the superior Courts have in certain cases been allowed, not by statute, but by assumption of jurisdiction which has been acquiesced in by all individuals and institutions in the civilized countries of the world, the right to be themselves the injured party, themselves the prosecutors and themselves the Judges. That extraordinary development is explained, and can only be explained by the necessity of arming the Courts with powers to defend themselves against every attack upon the position which they occupy in the administration of justice. Confidence in their capacity as such can be allowed to be affected only at the risk of dissolution of the entire system of Courts, and it is therefore that the Common Law has provided not only that the Courts shall be Judges in their own cause, but that they shall also act in a peremptory and summary manner to check at once all attempts to interfere with the administration of justice by themselves. Here it may be added by way of corollary arising out of the special nature of contempt by scandalization, that while in the case of a libel, it is for the Judge to find whether the words are capable of a defamatory meaning, but it is left to the jury to decide whether the defamatory meaning was intended or produced, in the case of a libel upon a Court, both these functions are to be performed by the Judge himself. That is at the conclusion of the proceedings, but the power of initiating a prosecution confers upon the Court the power of finding, in limine, that the words constitute prima facie a libel upon the Court. In other words, whereas in a case of libel upon an individual, the individual has himself to satisfy the Judge in the course of the proceedings that the words that he complains to have adefamatory sense, in a motion for contempt that stage has already been over passed, and the respondent coming before the Court upon a writ is thus placed in peril to an extent which bears no comparison with that of a respondent to a libel action. Moreover, it is ordinarily a complete defence in an action for libel that the defamatory imputation is true. In a proceeding for contempt, by publishing a libel upon the Court, such a defence is not admissible. Any attempt to justify the libel is, in law, a fresh contempt. Case of K. L Gauba (A I R 1942 Lah. 411). These are the basic reasons why, in the vast majority of cases respondents to a writ of contempt for a libel on the Court preface their submissions with an apology. That does not necessarily mean that the assumption must in all such cases be that the Court issuing the writ is in the right in regard to the substance of the complaint. It merely concedes that the Court had the power to commence the proceeding upon its own interpretation of the offending words of action, and the position of the superior Courts in any civilized country is so high that a mere expression by the Court in this manner of its having taken offence at something said concerning itself is or ought to be sufficient to induce in the alleged offender a feeling of regret that, whether wittingly or otherwise, he should have given cause for such offence. It has long been accepted that the extraordinary power of punishment for contempt has been given to the Courts in order "to keep a blaze of glory around them and to deter people from attempting to reader them contemptible in the eyes of the public". Any individual or institution who or which is conscious of this principle, and adheres to it would necessarily feel that to give offence to a Court at all, in a manner such that the Court feels it has been lowered in the eyes of people, is a matter for regret, and no person or institution in a State should feel himself or itself so great as to regard the offer of an apology as being beneath his or its dignity. It is from this point of view that in the course of the hearing of this appeal, the Bench observed with disapproval that none of the parties who were concerned in, the action which had given offence to the High Court, had come forward to offer any apology. I have mentioned above the belated action on behalf of the. Central Government, saying that it was sorry for a breach of courtesy committed by an inadvertent action on the part of .the Provincial Government, for whom neither the Law Secretary nor the Central Government can be regarded as qualified to speak. At the earliest stage pf the case in the High Court, it should have been realised that it was no part of the duty of the Provincial Government to bring to the notice of its own High Court the view held concern ing a number of its decisions by the. Law Secretary of the Central Government. Therefore, for this action of sending the pamphlet to the High Court, containing matter to which that Court had taken strong exception, at least an apology from that Government was natural and necessary. As to the substance of the offending paragraphs, the respondent and the Central Government have been at pains to claim as a ground of immunity that these represented communications by an official to other officials, under the safeguards of official secrecy. But it does not seem to have been appreciated that these circumstances by themselves should have obliged the parties at fault to consider whether it was not possible that, on account of the communications having been made in official secrecy, their contents and the language employed might not have possessed a character which displayed less than the expected degree of respect for the High Court. When it became apparent that through the action of the Executive itself, the things which had been said had reached the High Court, and the High Court had reacted by issuing a notice of contempt in relation to the things said, three considerations immediately arose which should have obliged the persons responsible for the communication to examine whether they were not under a duty to make an expression of regret. Firstly, there was .the consideration that when a High Court issues such a notice, it has decided that the words used have prima facie a disparaging and defamatory mean ing. Secondly, the circumstances indicated that the possibility of expressions having been used in confidence which were derogatory to the dignity and authority of‑the High Court was a lively one. Thirdly, like all other individuals and institutions in the State, they were in duty bound to maintain that dignity and authority, in the interest of the State itself. The only advantage which I can see to have accrued from the attitude actually taken was that it has enabled this Court to examine with thoroughness, the rights and wrongs in the rare case where a high Executive authority has offered a candid criticism of the functioning of a High Court in an important respect, and has done so in full view of the High Court, so to speak. I may mention here that a further statement was filed on behalf of the Central‑Government in the course of the hearing on the effect that it had been ordered that the pamphlet in question should be withdrawn from circulation. Orders to this effect were obtained during the course of the hearing of the appeal, as a result of observations made from the Bench. The result of the action is that the mischief of which the High Court complained has been prevented from spreading further. It does not operate in reduction of the mischief already done. But, on the strength of this action, a fresh pleading was submitted, namely, that the case of the Law Secretary should be considered afresh on the basis that he was responsible neither for the delivery of the pamphlet to the High Court nor for its circulation. It was submitted that since he was not in any way responsible for the two actions of delivery and circulation, his case should be examined solely on the basis that he delivered the speech to a group of Government officers in official conclave and he should be held free from liability on the following grounds, viz.:‑ (1) that he was speaking to officials in discharge of an official duty and in official conclave; (2) that he spoke in confidence since the hearers stood in confidential relationship with him on account of their official position and his ; (3) that the occasion was privileged and the utterance was relevant to the occasion being devoid of malice, and in substance merely an explanation for certain amendments in the constitu tional provisions ; and (4) that by necessary implication, there was an intention that the general public should be kept out of all knowledge of the talk, and therefore the essential element of contempt, via., obstruction of justice by lowering the Court in the estimation of the general public, was lacking. These are indeed the principal defences set up on behalf of the Law Secretary which now fall to be examined. Before proceeding to this, however, I should like to repeat that whatever be the result of the examination, if the situation which faced him when he received the notice from the High Court, had been properly appreciated, hips immediate reaction should have been one of regret, and he should have left his justifications until later. What he actually did was in effect to say that he was explaining certain amendments in the Constitution, and had had occasion to comment upon certain actions of the High Court, which he thought was in excess of the limits of its jurisdiction. To this, he added a paragraph suggesting that the High Court should exercise restraint in assessing criticism offered upon its decisions. That was not indeed a very wise line to take. The examination of the 9th paragraph ought to commence with a statement of the constitutional provisions by which the power of issuing writs was conferred upon the High Courts, prior to the 1956 Constitution, again by that Constitution, and finally under the Laws Order. In 1954, there was added to the Govern ment of India Act, 1935 by amendment a section numbered 223‑AM in the following terms :‑‑ "223‑A. Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo, warranto and certiorari or any of them." This section has a somewhat chequered history and, for a time, it remained in abeyance, but from October 1955 onwards until the date of the Republic, namely, the 23rd March 1956, it was in force in this farm. The Constitution of 1956 included a similar power in Article 170 which reads as follows :‑ "

170. Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part II and for any other purpose." The reference to Article 22 needs some explanation. Article 22 was included at the end of Part II of the Constitution, in which the Fundamental Rights were specified, and was intended to provide an additional Fundamental Rights, namely, the right to move the Supreme Court for the enforcement of any of the other enumerated Fundamental Rights. It gave the Supreme Court power to issue writs of the kinds mentioned in the other section to any person or authority "including in appropriate cases any Government", which power was to be exercised for the enforce ment of a Fundamental Right. The words of Article 170 reserved an equal power to the High Courts. The writs were a matter of late introduction into the scheme of law in the sub‑continent. Prior to the amendment of 1954, the only provision in the law for the issue of a writ was that in section 45 of the specific Relief Act, which by expression was confined to the Presidency towns where, by a fiction, the High Courts occupied in most respects similar position to that of the superior Courts of Record in London. But over the rest of the country and in matters not covered by section 45 in the Presidency towns as well, the position was that no Court could issue a writ to the Government or to any public body, for enforcement of public duties. The reason may be found in the fact that the sub continent lay under foreign rule. By the Laws Order of 1958, the Constitution was abrogated, and a specific provision was made with reference to the issue of writs by the superior Courts which is contained in three subsections of Article

2. These are reproduced below :‑ "(4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and cetriorari. (5) No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy Chief Administrator of Martial Law, or any person exercising powers or jurisdiction under the authority of either. (6) Where a writ has been sought against an authority which has been succeeded by an authority mentioned in the preceding clause, and the writ sought is a writ provided for in clause (4) of this article, the Court notwithstanding that no writ may be issued against an authority so mentioned may send to that authority its opinion on a question of law raised." There are no words indicating to whom the writs may issue, which means the words "including in appropriate cases any Government" have been excised and the words "for any other purpose" which were capable of being interpreted in an extensive sense have also been removed. The writs are not defined in any Pakistan Law, and their scope, the particular authorities against whom they might issue, and the other limitations, are therefore to be derived from the laws and precedents of other countries, in particular the United Kingdom. The period between 1954 and 1958 was altogether too short to enable the superior Courts in Pakistan to determine in more than a comparatively small number of cases, what was the scope and extent of the power under which all or any writs could issue. It is 6f interest to note that an early and enormously significant instance of the exercise of the power was the issue of a writ by Bench of five Judges of the Sind Chief Court to invalidate the appointments of a number of Ministers who had been appointed to his Cabinet by the late Governor‑General Mr. Ghulam Muhammad, after he had dissolved the Constituent Assembly in 1954. That was indeed an interference with the Government at the highest level, and the Law Secretary was not slow to point out in an early paragraph of his talk that his Ministry had been successful in having that writ set aside upon appeal to the Federal Court. In paragraph 9, the underlying theme was clearly that the power to issue writs had enabled the Courts to interfere with the operations of Government, and that the interest of Government was to restrict that power to the greatest possible extent. As he explained in his written statement, he made a point of the necessity of the Constituent Assembly being kept within its limits by the Chief Executive of the State, and in the same context referred also to the exercise by the High Courts‑of their writ jurisdiction. The manner in which he developed the theme, as against the High Courts was firstly to assert the description "prerogative writs" so as to convey the impression that the power was exercised within the prerogative of the sovereign, and then to express his view that in the two years preceding the abrogation of the Constitution, there had been interference "with the Government itself" on the part of the High Courts. This he thought had been done by interpreting the language of the constitutional provisions so as to extend the power beyond the "strictly defined frontiers of the prerogative writs". There follows a general statement that a delegated power cannot be used by the delegatee against the authority by whom it was delegated, supported by the statement that this had been made "clear over centuries of decisions by the Courts in England" and had recently been supported by a Judge in the United States. Now, it is difficult to avoid the conclusion that in charging the High Courts with the fault, if fault it be, of interfering with the "Government itself", the Law Secretary was less than fair, for the words of Article 170 of the late Constitution expressly gave the High Courts' power to issue it: appropriate cases, a writ to any Government, and what is more the writs specified were not the principal instrument provided by the Article, being third in order, of mention of the kind of instrument which the High Courts were empowered to issue. By Article 170 the High Courts were empowered to issue in appropriate cases to any Government, directions, orders or writs", including writs of the specified type. The words are so wide as to leave it open to the High Courts even to invent a new type of writ other than those specified since the mention of the latter writs was expressly not exhaustive. Therefore, the institution to be blamed for what is regarded as interference "with the Government itself" was the late Constituent Assembly, and not the High Courts. Again, the words "strictly defined frontiers of the prerogative writs" clearly convey the impression that the scope of those writs has somewhere been specified with exactness, and that the High Courts have been using the language of the law to go beyond those limits. Speaking with respect to the undoubted knowledge and experience of the Law Secretary, one would have been inclined to say that the body of cases built up in the United Kingdom around each of the prerogative writs represents, upon analysis, as uncertain a picture of the limits within which the power has been exercised as it is possible to conceive. Moreover, the law on the subject not having been reduced to statute in the United Kingdom or in any other country, so far as I am aware, the limits within which the power may be exercised are founded upon precedent alone, and much as that may be to the dislike of Governments, the writs being instruments in aid of the freedom of the people against tyrannical' exercise of powers, it is true to say that throughout the centuries they have been used by the Courts for the purpose of broadening freedom, from precedent to precedent. Therefore, to speak of the "strictly defined frontiers of the prerogative writs" in a judicial atmosphere would be calculated to raise eye‑brows. But coming from the Law Secretary, to an audience of Secretariat officers, many of them of the clerical establishment, and very few with any training in law, such an expression would naturally convey the idea that the prerogative writs are as closely defined as, say, the definition of murder in the Penal Code. Nothing can be farther from the truth, but the Section Officers were not to know, and it is in that light that it is necessary to appreciate, for the purposes of this case, the charge that the High Court had been contravening legal limits, to which was added the wholly in accurate statement that they had used the language of the 1956 Constitution" to enable them to do so, whereas in fact the language in question laid out the broadest possible invitation to such extended application. The argument that in the country of their origin, where the prerogative of the Sovereign still has meaning, the prerogative writs could not be employed against the Sovereign was not a tenable argument in a country where by the Constitution itself the issue of writs to a Government was authorised. But again, how were the Section Officers to know, when it was put to them in plain terms that there was an obvious error of logic in the delegate attacking the very authority from whom it had received its power? One has to bear in mind "the apprehension of the hearers" in judging such a case. .This aspect was emphasised to the hearers again by saying that the Law Ministry had been obliged to appeal to the . Supreme Court in a large number of cases, against interfering writs issued by the High Courts, and had succeeded "in every case except one", at the cost of a great deal of money. Again, the statement may or may not be true, but it is certainly less than fair, for this reason that no mention is made of the fact, to which I, being a party to practically every case of the kind mentioned, as a Judge in the Federal Court and thereafter, in the Supreme Court, can testify, namely; that in every case of the kind mentioned, the High Courts had attempted to do justice to the individual in the light of the legal instruments. The impression which the hearers would have gained by the bare statement regarding the appeals and the success which the encountered is of a kind of judicial perversity by the High Court at the expense of the State. Then, the speaker stated what had been done by the new Government to stop this process, viz., that to put the situation right without further waste of money on appeals, the power was placed within limits by the new form of words adopted in the Laws Order, and he succinctly described the purpose of this move in the following words :‑ "This was to indicate, as politely as possible, that a writ was a writ confined to known limits, and the limits could not be exceeded." The impression that thereby the High Courts were placed in, a judicial straight jacket, which is clearly conveyed by these words, could, not possibly have been lost upon the hearers. The effect would certainly be emphasised and in a very unfortunate manner, by the addition of the reference to politeness. No one can deny that the words "as politely as possible" are used ironically, and that they carry the implication of the use of courtesy where none was justified. In fact, in altering a law so as to avoid the effect of a judicial decision, the Government or the Legislature performs no act of courtesy, and indeed, courtesy is probably the last consideration which the body altering the law has in mind, since it is wholly irrelevant to the exercise. But here there is a reference to courtesy, and it is uncalled for, and certainly carries unpleasant under‑tones. These were further emphasised in the sentence which follows, which again refers to "civility" towards the High Court, and conveys a confession of partial failure in bringing about the desired improvement. At the same time, a hope of greater success is expressed which is based upon the wording of the amended clause, and "some very severe observations by the Supreme Court" which it is said have had "the effect of indicating that after all there are limits and that the limits must be observed". The existence of limits is very often anathema to a judicial body charged with the function of inter preting written words conveying powers to itself. The remainder of actual corrections by a superior appellate authority adds a sting, which could not have been lost upon the audience of Section Officers. In reality, as I have said already, the Law Secretary may be entirely mistaken in supposing that in the hands of the Judges of this or any other country, the writs of mandamus, etc., which they are empowered to issue will ever 'be exercised within the strict bounds of any precedent case. Even on, precedent, there would today be very little difficulty in issuing a writ of any of the defined categories, to produce some surprising results, and there fore the words in the Law Secretary's pronouncement as to limits having successfully been imposed upon the power by the new law might, in one aspect, have no meaning at all. But to the hearers, unskilled in law and ignorant of the nature of this very special judicial function, the impression conveyed would clearly be that the High Courts had been flying in the face of statutory of other legal provisions limiting their power, that words had now been adopted which would cure this tendency, and that the High Courts had already been castigated by the Supreme Court for their errors. The mention of 'civility' imported the necessary touch of irony to make the implications additionally clear. The tenth paragraph has a personal interest for public Servants, as it mentions in particular the power of granting extensions of service to them beyond the age of superannuation. It mentions a case decided by 'the High Court', which it is agreed is the case of A. R. Azar, where this power had been denied to the Government, at the instance of certain public servants whose prospects of promotion were prejudiced by the grant of extension to one of their number. The learned Judges of the High Court have been at pains to show that the judgment in that case is founded upon interpretation of the Fundamental Rules relating to public servants which are of statutory effect. Nothing of this appears in the Law Secretary's address, and this may be thought to be less than fair, for to his hearers he said that "we (meaning no doubt the Law Ministry) have never been able to understand the judgment". In the viva voce examination the Law Secretary said that what he meant. by these words was that the case was wrongly decided, and the learned Judges have said that if he had said this to his hearers, they would have had no objection but in the way he put it, the hearers would be inclined to think that the reasoning of that judgment was incomprehensible. The Law Secretary went on to say, and here he fell into error which was discovered without difficulty, that the Ministry would have appealed against that judgment and added that he had no doubt "we should have succeeded", but they refrained from doing so for a stated reason. In actual fact a petition for leave to appeal against the judgment in the case of Mr. Azar was dismissed by the Supreme Court on the 7th March 1958. Therefore to save that no appeal was attempted was a misrepresentation of facts, and the learned Judges in the High Court have also not been slow to seize upon the confident prediction of success with which this misrepresentation was supported by the speaker. The judgments refer to the Law Secretary's expressed reason for amending by way of an "explanation", i.e., purporting to clarify a doubt, namely, so as not to concede that it was a new power, but to take it "for granted that, notwithstanding the judgment, and in order not to prejudice our appeal if we ultimately did appeal in any other case, the power does exist". As to this declaration by the Law Secretary, Mr. Justice Ortcheson has made the following observation :‑ "It is difficult to imagine any procedure showing greater con tempt for the High Court than this." With due respect to the learned Judge, the words of the Law Secretary plainly import an intention to have the matter con sidered afresh by the ultimate Court, in appeal, in a suitable case, and the desire to avoid prejudicing such an appeal by taking the power expressly, seems to me to be natural, and to convey no sense of derogation in relation to the High Court. At another place in his judgment, this learned Judge speaking of an intention expressed in certain noting in the Law Ministry of requesting .the Supreme Court in a proper case to reconsider certain views which it had expressed in an earlier decision, observed as follows :‑ "It is difficult to say whether the possessors of such sublime intellectual self‑confidence are to be envied or pitied, though in the circumstances pity would probably be the more appro priate emotion." With respect, the occasion required no display of emotion of any kind. By the Constitution of 1956, which in this respect still remains in force, the Supreme Court has been given power "subject to the provisions of any Act and of any rules made by the Supreme Court, to review any judgment pronounced, or order made, by it". It requires no "intellectual self‑confidence", much less anything in the category of the sublime, to bring a matter before a Court for the exercise of its proper jurisdiction. A little later in this judgment I shall attempt to indicate how in my view, the two offending paragraphs might possibly be understood by a judicially informed mind. At present, I am concerned with "the apprehension of the hearers", and on the analysis I have made above, I have come to the conclusion that the resentment felt by the High Court at the characterization of its functioning in the writ jurisdiction, contained in the two offending paragraphs, is well‑founded. I consider that the learned Judges are right in saying that in the estimation of those who heard the speech and later read the talk, the High Court was lowered and brought into disesteem. As I have observed earlier, in an ordinary case of libel., it is 0i complete defence that the defamatory imputation is true, but it is otherwise in a case of contempt by scandalizing a Judge or a Court. Any attempt to justify the libel upon a Judge or a Court is in itself a fresh contempt. It will be evident from the above discussion of the two offending paragraphs that, competency apart the defence of justification by truth could not have been raised on the facts in the present case with any hope of success. Equally, the defence of fair comment is not available. For fair comment it is necessary that facts should be truly stated; it is not enough that there should be absence of malice, of that the expression of opinion should be honest. Bearing in mind the nature of and occasion where a highly responsible officer was speaking to others who also were responsible officers, and likely in due time to achieve posts of responsibility not dissimilar to that of the speaker himself, one would expect that the facts would be stated with the utmost accuracy, particularly as criticism was being levelled at an institution of such great importance as the High Courts of the country. In the two offending paragraphs, there is practically no mention of facts, in the ordinary sense, but there is criticism which is founded upon assumed facts, and the assumptions are found upon examination to be wrong. That makes the criticism much less easy to defend, and as has been seen, it was expressed in terms which, to the hearers, were both caustic and derogatory. I think it is fair to say in the present case that there was absence of the necessary degree of care in ascertaining the correctness of the underlying facts, which the occasion required, and therefore the plea of fair comment must be rejected. Learned counsel on behalf of the Law Secretary as well as o: the Central Government attempted with some assiduity to develop the argument of privilege. In a case where through the action of the Government itself, the offending document has been brought directly to the notice of the High Court, and the High Court thereupon seizes upon the document as in itself furnishing proof of contempt of its authority, there are visible difficulties in the way of preferring a claim of privilege. It was sought to be raised on behalf of the Law Secretary on the basis that he was not responsible for the publication of the document, at any rate to the High Court. That is a defence which is only possible on account of the failure of the High Court say so with all respect‑to bring about a proper array of all the defending parties before itself. If the Central Government and the Govern ment of West Pakistan had been brought into the array of the defendants, and I have given reasons in the earlier part of this judgment why this was both natural as well as proper, the entire chain of action by which the document was eventually published directly in the face of the Judges of the High Court would have) been brought into clear prominence. The Law Secretary ad mittedly authorised the issue in printed form of his talk at the request of the Government under which he serves. He says that he thought it was only intended for the use of certain Section Officers in Karachi, but he says that they wanted it for use for a departmental examination, and a great mischief at once becomes apparent, namely, that perhaps not one group only of the Section Officers, but all Section Officers from year to year who take the departmental examination upon the constitutional structure of the country would be absorbing the doctrines contained in the Law Secretary's talk, concerning the functioning of the High Courts. Those doctrines are, I say so with respect, erroneous and they are based on erroneous premises. The learned Judges are in my opinion right when they say that the publication to which the Law Secretary agreed was of an extensive nature. I would go further and say that it was clearly capable of spreading mischief. To avoid the liability, it was urged on his behalf that his action was covered by a special privilege. Mr. Mahmud Ali appearing as amicus curiae urged before us that contempt of Court falls within the category of sedition, being defiance of the lawful authority of a Sovereign as represented by the superior Courts of a country, and that in early ages it was so regarded. In that view of the matter, he contended that the plea of privilege is one which cannot be admitted in a proceeding for contempt of the nature here in question. When full weight is given to the considerations marshalled with oc casional exuberance of language in the long series of precedent cases, which go in favour of the maintenance of the contempt jurisdiction at its, present level, the argument of Mr. Mahmud Ali certainly gains the appearance of soundness in reason, al though he had to admit that he could supply no authority in support. He stressed however that the plea of privilege had never in any precedent case been either raised or conceded, in a proceeding in contempt. It must, however, be admitted that the precedents do not furnish any example of a case bearing resem blance in material respects to that which is before us. Therefore regretable though it may seem, that so attractive an argument as that presented by Mr. Mahmud Ali should, have to be post poned for proper consideration in a future case which may never arise. I do not think the present occasion needs to be utilized to add further strength to, the powers of superior Courts to vindicate their authority against all contemners. For the kind of privilege which alone can avail to the Law Secretary is not avail able even under the more liberal provisions of the law of libel. Under that law, no action lies against any officer of the State for any defamatory statement contained in an official report made by him to the head of his department even though such statement be published maliciously and without reasonable or probable cause. This is regarded as necessary for the preservation of the public interest, for which it is thought essential that officers of State should enjoy freedom of action within the official sphere and be under no peril of being subjected to open trial. Ordinarily, documents of the kind covered by this absolute privilege are documents of State which cannot even be produced in evidence nor can any secondary evidence of their contents be given, at the option of the party affected thereby, since the law leaves the decision in 'the matter exclusively to the head of the depart ment to which the document relates. In the present case, through the action of the Government itself, the document has been published to the High Court. It is as if a tape‑record of the Law Secretary's speech had been played back to an audience composed exclusively of the Judges of the High Court, for their information. The plea of privilege in relation to the production of evidence is in any case lost. And though on behalf of the Law Secretary the plea of official communication made in official conclave under conditions of official confidence has been raised it is clear from .the facts which have been candidly admitted that several of the necessary conditions relating to such com munications, if they are to be allowed absolute protection, are not present. Firstly, although the Law Secretary made his speech at the request of his superiors, what he said can by no means possess the character of an official report made to the head of his department. The two communications would fall within entirely different categories. Whereas if the Law Secretary had been making a report regarding the working of the High Court to his official superiors, he would be allowed full freedom of expression of opinion, and could claim protection against action for anything said by him, it is a wholly different matter when, outside his own office and department, he is speaking to a group of persons who, though they be officials, have no duty in respect of the High Courts which would justify their receiving a report, whether favourable or adverse upon the functioning of the High Courts. As was said by Lord Atkinson in the case of Adam v. Words (1917 A C P 334) :‑ "A privileged occasion is . . . . an occasion where the person who makes the communication has an interest or a duty, legal,, social or moral, to make it to the person to whom it is made and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential." Where the subject‑matter of the communication is criticism of the functioning of so highly placed an institution as the High Courts of a country, there it is proper that privilege should not be extended beyond the narrow confines of the existence of a mutuality of duty in respect of the High Court affecting those between whom, the communication is passed. The necessity of retaining the superior Courts of Record in a state of immunity from attack of an insulting or scandalizing nature, is of a very fundamental nature. If this protection is to be denied at any point, it can only be for overwhelmingly strong reasons of public policy, so strong indeed that I find it difficult to conceive of any reasons which might be effectively urged in bar of the liability arising out of the publication of the libel in the circumstances of the present case. It was sought to be argued on behalf of the Law Secretary that he was trying to help the Section Officers to develop a proper attitude of resistance towards any interference by the High Court in the workings of Government, and was also concerned to discourage them from pursuing each other, in service controversies, by proceedings in the High Court. No indication to either of these effects appears in the offending paragraphs, and in any case, where disparagement has been justly found, pleas of this nature are of no avail, since these meanings were easily capable of being rendered in terms devoid of derogation. Therefore, I find no force in the plea of privilege, and on the result of the analysis which I have made above, it would seem that the paragraphs complained of do indeed constitute a punishable libel upon the High Court. As I said at the com mencement of this judgment, however, the case is one in which high legal authority is in direct conflict with a superior Court, and the assumption is not easily to be made that the Law Secretary, has deliberately offered an outrageous insult to the High Court. Although my interpretation of the offending passages differs some what from that of the learned Judges in the High Court, I am yet willing to concede that their interpretation may possibly be closer to the sense in which the Law Secretary's audience understood his words. It is a fundamental rule in relation to libel that no forced construction in aid of the libeller shall be adopted, but the words shall be understood in their ordinary meaning, as if by men of ordinary reason. Yet, I feel it my duty to attempt an interpretation of what the speaker was trying in those two paragraphs to say. It. will be necessary, perhaps, to read between the lines to get at the purport, and I feel qualified to do so, for I have myself worked with him in harmony and full agreement for a year in the Law Ministry of the Pakistan Government. In that time, I gained a high respect for his legal acumen and his sincerity of purpose, as well as an insight into his particular style of legal expression. To some extent, he has laid himself open to misconstruction by adopting for his speech the same terseness of expression which distinguishes his noting on legal files. He made it clear in an application to the High Court that in the ninth paragraph, he was referring to interference by the High Court with the services. I conceive that when he spoke of w the writs being directed "against the Government itself," he meant that by disturbing the structure of departments in the shape of its graded personnel occupying positions for which they had been duly selected for suitability by their superiors, which was what had resulted from the issue of a number of writs in service matters by the High Court, there had been interference with the very structure of the Government, as a composite entity and this the Government could not tolerate, if its integrity as a single efficient unit were to be preserved. The instance of the choice by a Prime Minister of his Cabinet might not be altogether a close parallel, but it is cleat that the system of collective Cabinet responsibility, and of the operation of a Cabinet as a single unit, would be destroyed, if it were open to a Court to examine whether or not a person should be a Minister or whether one Minister should be held senior to another. They mischief might appear more clearly, if the Courts were enabled so to interfere upon motion by one of the Ministers themselves. The apparent equation by the Law Secretary of the Government as constituted by the public servants with the State itself or with the Sovereign, may T not be readily accepted, and it is probably also an incorrect statement on his part that the Supreme Court has ever acted to establish this as a proposition, or any other consequential pro position, but I understand his reference to "authorities remaining within their own spheres" as inspired by a feeling that in disturbing the orderly arrangement of public servants in their graded position inside the Government, which result had in fact been achieved by a number of the writs issued, there bad been disarray in the services, affecting the integral working of the affected departments as well as the efficiency, contentment and general happiness of the officials themselves. If the Law Secretary had indeed intended to say so, he may well have‑done it without giving offence in the manner found, but he would certainly had to use a much longer form of words and a much more explicit manner of expression. It would have been better if he had mentioned a few relevant cases in detail, as that would have assisted in confining the comment within the bounds of exactness as well as propriety. The burden of this theme in the tenth paragraph may, in my opinion, be similarly found. I conceive that when he said that the judgment of the High Court denying the power to Government of granting an extension of service to a particular public servant was wrong, he may have meant that to avoid the extension on the basis of an assertion of rights by other Government servants, who expected to occupy the position in which the superannuated officer was being continued, might be equivalent to creating vested rights in Government servants in relation to particular posts. Certain noting from files in the Law Ministry which was admitted in evidence at the hearing indicates the possibility that the view held by the Law Ministry is that the composition of any branch of a public service is not a matter of balance or equation of rights as among the officers composing it, but is entirely within the discretion of the head of the Government, and therefore, no member of the service can claim that he shall occupy a particular post or that another member shall not occupy that post. If by the fact of such member not being awarded the post, he suffers a loss in relation to his prospects of promotion, it is within the competence and may also be regarded as the duty of the head of the Government to compensate him in some other way. But it is not open to any outside authority to operate those processes by which selection to fill the post in ‑question is determined. To do so by means of writs presupposes the existence of vested rights in the claimants, which the relevant Executive department can only concede at the risk of diminution and eventual dissolution of its own authority. It becomes a house divided against itself. In that view of the matter the Law Secretary's statement that his Ministry had never been able "to understand the judgment" may perhaps be understood in a sense which is not derogatory to the High Court which delivered that judgment, but at the same time it must be said that the Law Secretary certainly did not use such language to convey the meaning as would make it plain to his hearers. He clearly left open to his hearers to conclude that he was merely saying that High Court judgment on the point was impossible to understand. Upon a careful examination of the whole case, I am in agreement with the view expressed in the High Court that the words of which they complained do constitute libel upon the Court, such as is calculated to interfere with the proper adminis tration of justice by the High Courts. As to the question of the punishment merited, the law places it in this special instance, within the competence of the offended party to assess in terms of imprisonment or of fine the gravity of the offence, for purposes of punishment. I repeal that it is a matter of regret that the case was allowed to reach that stage, for I am prepared to accept the confident assurance given to us by Mr. Mahmud Ali that had the natural step been taken at the earliest stage of offering an apology to the High Court, for the offence which it could reasonably be apprehended had in fact been given, the Judges would in all probability have been favourably inclined to end the matter at that stage. But since the opportunity was not availed of either in the High Court or in this Court, I consider that the case should be left in its present stage, namely, that this appeal should be dismissed. I would allow to Mr. Mahmud Ali who appeared as amicus curiae his fee at the rate of Rs. 1,000 per day for each day that he stayed in Dacca for the purpose of the hearing, and also for one day to cover the journey between Lahore and Dacca: as well as his expenses at the rate of Rs. 60 per day for his stay; in Dacca. The Law Secretary, by application, and the Central Govern ment, in their separate appeal, have both asked for expungement of certain passages from the judgments delivered in the High Court. It is not possible to urge that anything therein said is extraneous to the proper consideration of the matter before the High Court, and in the main, the complaint is of the severity of certain observations, in particular as to the attitude of the Central Government. The case was of a nature such that to offer a total defence, however respectfully, but Without any coating of regret was to invite stringency of language in its treatment, and though it may be said that some of the inferences drawn, and certain of the comments made, could have beers expressed equally effectively with greater restraint, yet I do not see any occasion here for the exercise of the very extraordinary power of expunging passages from a judgment of a superior Court of Record, and I would therefore refuse these prayers. S. A. RAHMAN, J.‑Sir Edward Snelson, Secretary to the Government of Pakistan, Ministry of Law (hereinafter referred to as the appellant) has been found guilty of criminal contempt by the High Court of West Pakistan and has been awarded a sentence of Rs, 2,000 fine, or, in default of payment, simple im prisonment for one month. The contemner was also directed to pay Rs. 2,000 as costs of the proceedings. The case in the High Court was heard by a Full Bench of three Judges, who wrote separate but concurrent judgments. The proceedings were based on a talk given by the appellant on the 15th of February 1960 at Rawalpindi to a group of Section Officers of the Government of Pakistan on the invitation of the Establishment Division of the President's Secretariat. This talk was intended to be an exposition of the transitional Constitution of 1958. Subsequently, with the appellant's consent, 2,000 copies of this talk were printed by the Government of Pakistan in the shape of a pamphlet which also included some constitutional orders and it was disseminated to various Govern ment offices, some of the copies being sent to Pakistan Missions abroad. A copy of the Pamphlet was also forwarded by a Section Officer of the West Pakistan Government on behalf of the Additional Chief Secretary to that Government, to the Registrar of the High Court, for information. The pamphlet thus came to the notice of the Judges who decided, after a consultation, that a notice be issued to the appellant to show cause why he should not be punished under the Contempt of Courts Act, 1926. The appellant appeared personally before the Court and was put further questions by the Judges to elucidate his position. He also put in a written statement, contesting the validity of the notice issued to him. The Central Government of Pakistan at its own request was impleaded as a party to the proceedings, although no notice had been issued to that Government for its part in publishing the offending pamphlet. No order was passed against the Government even at the end of the proceedings. The appellant and the Government of Pakistan have filed separate appeals to this Court, challenging the order of the High Court. Two separate petitions have also been presented on their behalf for expunction of certain observations made by the Judges in the course of their judgments. It seems to me that the Government of Pakistan was extremely ill‑advised in becoming a party to the proceedings in the High Court and identifying itself with the appellant. Proceedings of this kind are supposed to be initiated by a superior Court such as the High Court in the public interest, in order to keep the fountain of justice pure and unadulterated and to maintain the dignity and authority of the Court in the exercise of its judicial functions on behalf of the State. To say the least, therefore, the conduct of the Central Government of Pakistan created an anomalous situation in so far as it became the protagonist of a person who was eventually found to be in contempt of the High Court. Further, no order having been passed by the learned Judges against the Central Government, its competency to appeal to this Court, in the absence of facts bringing the case within the purview of Art. 157 of the late Constitution, was open to grave question. When this position was brought to the notice of Mr. Ghias Muhammad, who appeared for the Central Government before us, he decided to make his submissions to this Court on behalf of the Central Government as a respondent to the appeal filed by Sir Edward Snelson and not as an appellant in its own right This, he was permitted to do. Exception was specifically taken by the High Court to Paragraphs 9 and 10 of the offending pamphlet. These paragraphs are reproduced below :‑ "(9) I think everybody has heard about the writs or, as the Law Ministry prefers to call them‑to indicate the source of the power‑the prerogative writs. Between 1956 and 1958 the High Courts had used the language of the 1956 Constitution with its reference to orders and directions in the nature of writs‑to claim a jurisdiction to interfere with the Government itself without reference to the strictly defined frontiers of the prerogative writs. A Court can issue a writ only because the sovereign function is to that extent delegated to it by the Sovereign, that is to say, by the State. Clearly the delegate cannot exercise the power against the sovereign itself, and that has been made clear over centuries of decisions by the Courts in England where the writs first originated by delegation from the King, and this has been followed in the United States where the sovereign power descended to the people and is exercised in their name by the President. As an American Judge recently said: There cannot be two sovereigns, and the sovereign will not issue a prerogative writ against itself.' The Law Ministry has had to appeal a large number of times to the Supreme Court to have the position properly established, and has succeeded in every appeal but one. All this has cost a very great deal of money, and to try and put the situation right without having to spend more money on more appeals, a clause was inserted in the Order we are discussing giving the High Courts the power to issue the named `Writs' (not `orders or directions' and so on, but writs) of mandamus and the rest. This was to indicate, as politely as possible, that a writ was writ, confined to known limits and the limits could not be exceeded. I have to confess that even, with this civility, we have not entirely succeeded even yet, but this clause on the one side, and some very severe observations by the Supreme Court on the other, have at least had the effect of indicating that after all there are limits and that the limits must be observed. The great thing, in any orderly system of government (and without orderliness there is chaos) is that every organ of the Govern ment should be best adapted to the work it has to do and should know what that work is and what its own frontiers are. This avoids duplication. It avoids friction. It prevents usurpation of function and consequent uncertainty, with all the public confusion and private misery that it can lead to. (10) I apologize for taking up so much time over this Order, but on it the whole fabric of the constitutional Govern ment of the country rests until we have the new constitution. Perhaps you would have wished me to say something about the services, seeing that what was originally a single paragraph, Article 6, has now been increased to a further six paragraphs, some modifying terms and conditions of service already guaranteed‑but not all: one of the additions establishes the power to grant extensions of service, a power which was denied by the High Court. We have never been able to understand the judgment: we would, of course, have appealed against it, and I have no doubt we should have succeeded, but there was no time‑a certain loan from abroad was made conditional upon the continued retention of certain people, and since the High Court had denied the power to retain, and we could not wait for the months an appeal would take, the existence of the power was formally asserted in an Explanation. We chose this particular way of doing things, if you are interested to know, so as not to concede that the power had to be created; we took it for granted that, notwithstanding the judgment, and in 'order not to prejudice our appeal if we ultimately did appeal in any other case, the power does exist." The written statement, presented on behalf of the Central Govern ment in the High Court, consisted of only two paragraphs. In the first paragraph, it was stated that the appellant had been invited in his official capacity to give the talk in question to the Section Officers of the Central Government stationed at Rawalpindi, that it was exclusively meant for officials and that no part of it could, in view of the provisions of the Official Secrets Act, 1923, be disclosed to the public. It was added that the speech was later on printed and copies thereof supplied, in the normal routine, to certain officers of the Government. The second paragraph was couched in the following terms:- "(2) No official to whom the speech or copies thereof were addressed could under the law communicate the same to the public. So far as is known to the Central Government, the public at large did not come to know of this speech till it appeared in the press as an enclosure to the notice for contempt issued to Sir Edward Snelson." It appears that this paragraph was construed by the learned Judges to contain a veiled threat to them of prosecution under the Official Secrets Act, for having given publicity to the speech in question, through the medium of the press. This unfortunate impression was allowed to persist in the minds of the learned Judges who pointedly gave vent to their suspicion in Court and questioned the learned Attorney‑General who had signed this statement on behalf of the Government on this point. I understand that the learned Attorney‑General merely imparted the information to them that he had put in the written statement on instructions of the Central Government and offered no contradiction of the presumption made by the Judges. However, Mr. Abdul Haque, who was appearing for Sir Edward Snelson, seems to have repudiated the suggestion that the second paragraph of the written statement was intended to convey a threat to the learned Judges of possible action under the law. But it is significant that the learned Attorney‑General, who was the signatory to the written statement, did not choose to disabuse the minds of the learned Judges of the suspicion they had entertained. His not, therefore, surprising to note that the learned Judges ignored the explanation offered by Mr. Abdul Haque and drew their own conclusions. This would have some relevancy to certain remarks in the judg ment of the High Court which the Central Government now seeks to have expunged. That. the assumption made by the learned Judges was not altogether unwarranted, is to a certain extent supported by the fact (of which this Court can take judicial notice) that in a petition fox special leave to appeal (No. P‑I of 1960), filed through Mr. Abdul Haque, on behalf of Sir Edward Snelson, to contest the issue of the notice in contempt to him, at an earlier stage in these proceedings, a distinct assertion was made that the High Court Judges might be guilty of contravening the provisions of the Official Secrets Act. On the occasion when this petition was heard, the Attorney‑General also appeared before us and gave us the impression that he would support that ground. The lack of relevancy of a reference to official Secrets Act, to a case in which the High Court notice charged the appellant with publication to officials only is also a pointer in the same direction. The gist of the written statement presented to the High Court on behalf of the appellant was that he had given the talk in question to the Section officers of the Central Government in his capacity as "the principal Law Officer of the Government," on the invitation of the Establishment Division of the President's Secretariat, with a view to acquainting his hearers with the new constitutional position as envisaged by the President's Orders. Later on, the Section Officers stationed at Karachi, who had to take a departmental examination, and who had not had the benefit of hearing the talk, represented to the Establishment Division that they should be supplied with its copies. The Establishment Division then sought the permission of the appellant for the publication of the talk, to which he agreed on the express understanding that printed copies shall not go outside Govern ment circles. The talk was thus printed by the appropriate department and was labelled as "For Official Use only." The two impugned paragraphs in the talk were said to be "explanatory of the change in the wording of cl. (4) of Article 2 of the Laws (Continuance in Force) Order, 1958, in juxta position of the corresponding provisions of the late Constitution, and to the latest amendment in Art. 6 and the reasons which necessitated this change." In the course of the talk, it was explained, the appellant had occasion to refer to the difficulty that Government had faced from time to time ‑when different organs of the Government over‑stepped their legitimate jurisdiction and in that behalf the first Constituent Assembly came in for special mention. Reference was also made to the High Courts (not particularly to the High Court of West Pakistan at Lahore) in the same context. This was done, according to the appellant, "with a view to impressing upon the audience the importance of keeping within their respective spheres." It was further submitted that the paragraphs objected to did not, in any manner, 'exceed the limits of legitimate criticism of official acts, including judgments of Courts of justice, as laid down by Lord Atkin in Andre Paul Terence Ambard v. A. G. Trinidad and Tobago (A I R 1936 P C 145). Finally, the appellant pleaded that he had no intention whatsoever to scandalise or bring into contempt the authority of the West Pakistan High Court or any other High Court in the country. The observations contained in the aforementioned paragraphs were made, according to him, entirely in good faith and in the public interest in discharge of the appellant's official duty. This written statement .was supported by an affidavit. In answer to questions put to him by the High Court, to elucidate the matter, the appellant persisted in maintaining his view as expressed in paragraph 9 that under Art. 170 of the late Constitution, no writ could be issued to Government. He could not however, refer to any case decided by this Court in which it might have been held that this was the correct legal position. He acknowledged that, on the contrary, this point was considered by this Court in Writ Petition No. 443 of 1957 and was repelled. The appellant contended that the power given by Article 170 of the late Constitution "to issue to any, person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, etc.," was restricted to writs that could issue under the English Laws to a functionary of the Government, as distinguished from the Government itself. When asked to explain the central idea he had endeavourd to convey by paragraphs (9) and (10) of 'his speech, the appellant stated as follows:‑ "Put briefly, I would say that the writs as they have been issued have caused a great deal of disarray in the Government discipline of its subordinate services and I wished to point out how serious ail this matter was and what steps the Government had tried to take to put an end to that disarray." In answer to a further question, he averred that he had meant to say that the writ jurisdiction had been exercised "mistakenly" by the High Courts. He had no intention of saying that the jurisdiction was asserted or claimed in bad faith. He did, however, assert that the High Court had "deliberately usurped jurisdiction" in the sense that they had mistakenly exercised it, after due deliberation. He repelled the suggestion that the two passages in question were calculated to create a feeling of revulsion and contempt towards the High Court. His object was to inform the Section Officers of the divergent views between the Government and the High Court and the steps taken by the Government to bring these divergences to an end. When asked whether he could not use more polite language to carry out his object, he said he had to write the talk in the midst of pressing official pre‑occupations and had he had more time he might have used different language. This was a surprising answer on the part of the appellant who is Law‑Secretary to the Government and as such presumably quite familiar with the usual forms of expression which judicial authorities habitually adopt while differing from one another in legal expositions. In paragraph (10), by using the words "we have not seen able to understand the judgment" (in Azar's case) he explained that he merely meant to imply that in the opinion of the Law Ministry the judgment did not lay down correct law. It may be noted that there was not one word of regret in the written statement filed by the appellant or in his further explana tions to the High Court on interrogation concerning the use of unnecessarily pugnacious language or about the pamphlet having been sent to the High Court involving a direct affront to the Judges' dignity. It was only in consequence of certain observa tions made by this Court to the Course of arguments that a statement has now been put in, on behalf of the Central Government, with which Sir Edward Snelson has associated himself as Secretary to the Government and also in his personal capacity, regretting that by inadvertance, the pamphlet had found its way to the High Court, as a matter of routine. This was described as a breach of courtesy which was never intended. The Central Government, according to this statement, felt sorry that it inadvertently gave offence to the High Court for which it had the highest respect. It was added that this was "without prejudice to the claim of the Central Government to immunity in regard to communication made in official confidence within official circles." It is a matter for regret that this act of contrition was not thought of voluntarily while the proceedings were pending in the High Court and that even at this belated stage, the reservation of the defence of privilege should have been allowed to detract from whatever grace it might have possessed. The learned Judges of the High Court have been at pains to point out that the passages in question contained in accuracies on points of law as well as of fact. In the first place, the language of Art. 170 of the late Constitution is so clearly against the main idea that found expression in paragraph (9) of the speech, in respect of the competency of the High Courts to issue writs to Government, that it is difficult to disagree with the learned Judges that the view held by the appellant was untenable. That however may be regarded as a mere matter of opinion, not per se reflecting on appellant's bona fides. But it was certainly incorrect to say that in appeals taken to this Court against High Court judgments to establish this position, the Central Government had succeeded in all cases but one. On the contrary, in the only case in which this point had been specifically pressed, the decision of this Court had clearly gone against the Government. At a subsequent stage of the proceedings, it seems, the position was sought to be taken up that the appellant meant to refer only to appeals in service matters. Even this restricted statement would invite identical criticism. In the 10th paragraph of the speech too, the appellant was guilty of a factual lapse in stating that the High Court judgment had not been appealed against for lack of time and that the urgency of the matter necessitated the amendment of the relevant law. The High Court judgment was rendered in Azar's case on the 27th November 1957 and a petition for special leave to appeal No. 7 of 1957 was presented to this Court in that case and dismissed in limine on the 7th March 1958, as the question raised had merely become academic in character. The relevant law was not amended in the sense indicated till the 25th May 1959. The findings of the High Court as regards the inaccurate basis on which the appellant proceeded have not been controverted before us by learned counsel for the appellant and the Government. This would have a bearing on the defence of legitimate criticism taken by the appellant. In the opinion of all the three learned Judges who dealt with the case in the High Court, by the offending paragraphs, the appellant had attacked the competence of Judges of the High Courts in Pakistan, in so far as they did not even understand that "a writ is a writ" and had also ascribed to them persistently contumacious conduct in issuing writs against Government in order to interfere with its functions, despite the fact that the Law Ministry had succeeded in obtaining clarification of the position from this Court and the change in the law made by the Laws (Continuance in Force) Order. Paragraph (10) was interpreted to mean that the appellant considered the judgment of the High Court in the case of A. R. Azar (P L D 1958 Lah. 185) to be unintelligible. These statements, it was found, held up High Courts in Pakistan to ridicule and contempt and lowered their dignity in the eyes of the hearers of the speech and the readers of the pamphlet. The appellant was, therefore, found guilty of that form of contempt which is known as "scandalising the Court." It has been urged on behalf of the appellant that the words complained of did not constitute contempt of Court as they were not calculated to interfere with the administration of justice, that the comments amounted to no more than fair and legitimate criticism of judicial acts, and that in any event, the occasion on which the impugned talk was given was a privileged one and, therefore, even if the words could be said to be contemptuous of the High Court, the appellant was protected by absolute privilege, of at least by a qualified privilege, the restriction of publicity to official circles being a relevant consideration in this respect. Beside covering this ground, Mr. Ghias Muhammad, on behalf of the Central Government, in addition suggested that the pamphlet in question could not have been put in evidence at all, being a privileged document. I proceed to examine these points. The last point put forward by Mr. Ghias Muhammad may be considered first. To my mind, the argument raised has an air of unreality about it, considering that the pamphlet was sent by the Government agency itself to the High Court, enabling that institution to issue a notice for contempt to the appellant. The question then of taking into evidence a privileged document does not arise. It appears that the Central Government have now decided to withdraw this pamphlet from publication and it is contended that the case should now be deemed to be one in which the pamphlet still remains within the executive circles of the Government. I am unable to accede to this contention as correct. The action now taken by Government might ensure that the contempt is not repeated in the future, assuming that the speech in question did fall within the mischief of the relevant law. It, by no means, destroys the effect of what happened in the past, namely, the transmission of the pamphlet to the High Court. The Government itself having enabled the High Court to take action on the basis of the pamphlet cannot be heard to say that the document being a privileged one should not have been allowed to form the basis of these proceedings. Learned counsel apparently had in mind the provisions of section 123 of the Evidence Act in advancing this argument. That section, however, refers to "unpublished official records, relating to any affairs of State." I find it difficult to assent to the proposition that this particular speech which was published to 2000 Government officers, concerned any "affairs of State." This aspect of the case will receive further consideration in this judgment in connection with the plea of privilege raised on appellant's behalf. Before I address myself to the question whether the offending paragraphs. (9) and (10) fall within the purview of contempt of Court the principles governing such cases may be briefly stated. "All publications," says Oswald in. his well‑known book on Contempt, "which offend against the dignity of the Court or are calculated to prejudice the course of justice, will constitute contempt." "Any act done, or writing, published, which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court," is a contempt of Court, per Lord Russell, C. J. in Reg v. Gray ((1900) 2 Q B 36 at p. 40.). Similar words were used by Lord Atkin in describing the species of contempt, known as "scandalising the Court in Andre Paul Terence Ambard v. The Attorney General of Trinidad and Tobago (A I R 1936 P C 141 at p. 145). In the celebrated words of Wilmot J. m Reg v. Almon (1765 Wilm. 243), "the arraignment of the justice of the judges is arraigning the King's justice, it is an impeachment of his wisdom and goodness, in the choice of his Judges and excites in the minds of the people a general dissatisfaction with all judicial determinations and indisposes their minds to obey them." Scandalous attacks upon Judges are punished by attachment or committal upon the principle that they are as against the public, not the Judge, an obstruction to public justice Halsbury's Laws of England p. 7, para. 9, Volume 8 (III Edition). The question in every case is not whether the publication in fact interferes but whether it tends to interfere with the due course of justice‑Oswald on Contempt p.

93. Fair and legitimate comment on judgments of a Court would not be actionable, provided the limits of bona fide criticism are not exceeded. In the words of Lord Acton, "Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men. The power to commit should be sparingly used and any technical or formal contempt should be ignored, as hypersensitiveness on the part of Judges would stifle that spirit of free discussion on matters of public interest, which is the 'hall‑mark of democratic societies Judges too share the common fillings of humanity and a claim of infallibility has never been set up on their behalf. On a fair and liberal examination of the impugned passages in the light of these principles, it is, to my mind, impossible to resist the conclusion that the author of these paragraphs was guilty of scandalising the High Courts of Pakistan. Not only did he ascribe to Judges of these Courts, rank ignorance of the law of writs, but he also asserted in no uncertain fashion, in effect, that all efforts to educate the Judges in this regard had failed and that they were persisting in their illegal attitude in issuing prerogative writs against the Government, with the result that their action had led to "public confusion and private misery". That the author holds a very poor opinion about the capacity of High Court Judges in this country is further emphasized by reference to paragraph (10) of his speech, wherein he has animadverted on a particular judgment of the High Court of West Pakistan, in A. R. Azar's case (P L D 1958 Lah, 185) in terms which holds up that Court to ridicule or contempt. As has been observed above, his main thesis that under Art. 170 of the late Constitution, it was not possible in law to issue a writ to Government, is clearly erroneous and there were also factual inaccuracies in his statement which destroy the very foundation of his pungent criticism. The language used was intemperate and offensive and moreover had a heavy facade of supercilious sarcasm. Any unprejudiced hearer among his audience or the readers of the pamphlet, would draw the conclusion that the administration of justice was not in safe hands. The words used have a clear tendency to lower the dignity of the High Courts in public estimation, and to shake the con fidence of the officials concerned, in the administration of justice by the High Courts. If one of the objects of the appellant was to warn the Section Officers against approaching the High Courts for redress in writ jurisdiction to matters relating to their service con ditions (as was suggested at one stage in the course of arguments) that would be another form of contempt in so far as future judicial action was sought to be prejudiced. A statement scandali sing the Judges carries with it a presumption that it has a tendency to interfere with the administration of justice. It suggests that the fountain of justice itself has become tainted. This kind of contempt has always been held to be a gross form of contempt. The communication of the pamphlet itself to the High Court amounted to the offer of a gratuitous insult to the Judges. Mr. Abdul Haque for the appellant attempted to argue that, if there was defamation of a large number of persons taken collectively but no individual member was named or in any way referred to, the publication could not form the basis of an action for libel, and, as a contempt had first to be a libel, the same principle would apply to proceedings in contempt. In support of this position, learned counsel cited Knupffer v. London Express Newspaper Limited (1944 A C 116 at p. 119). That case proceeded on its own peculiar facts but there is an observation in that judgment which goes against the contention raised by Mr. Abdul Haque. It is to the effect that a reference to a limited class may be reasonably under stood as reference to every member of the class and in such a case every such member would have a cause of action. The same principle is embodied in Explanation 2 to section 499, Pakistan Penal Code, which defines "defamation". The High Court Judges in this country constitute a limited class and the authority cited, therefore, affords no assistance to the contention raised. The passages complained of, can in no sense be regarded as fair comment on judgments of the Pakistan High Courts. As ha, been pointed out above, the statements contained therein suffer from legal and factual infirmities and the appellant could not be said to have acted bona fide and in good faith, that is, with due care and attention in delivering such a speech. It would have been the easiest thing for the appellant, in his capacity as the Law Secretary to the Central Government, to inform himself of the correct position in respect of appeals taken in writ matters from judgments of the High Courts to this Court. It is a matter ford regret that the appellant apparently relied merely on his own mistaken recollections and made statements almost recklessly to justify his militantly antagonistic assertions. In these circum stances, it would be impossible to sustain the plea of fair criticism of the acts of Judges as public functionaries. The conditions necessary for the application of the First, Second or Fifth Exception to section 499, Pakistan Penal Code, could not be said to be satisfied in these circumstances. It is an essential part of such a defence that the facts forming the basis of the criticism must be accurately stated‑The King v. Fletcher ex parte Kisch (52 C L R 248). The next question that calls for consideration is that of pri vilege. In actions and prosecutions for slander and libel, absolute privilege attaches only to statements made in Parliament or in the course of judicial, naval, military, or State proceedings, under English Law (Fraser on Libel and Slander, pp. 160, 220 and 224 Seventh Edition). Halsbury at p. 53 of his Laws of England Vol. 24, mentions this kind of privilege under the heading "Affairs of State". The ground for immunity in such cases is public policy. I confess I am unable to see how the impugned speech has any relation to "Sate proceedings" or "Affairs of State". It is true that the appellant occupies a high office under the State and he was talking to other persons who were also employees of the State. He was not, however, making any confidential report to a superior authority which had powers of superintendence or control over High Courts. If that had been the case, the report could have been treated as a privileged document relating to "affairs of State". It was not even an opinion recorded on an official file by way of advice on a legal matter to another Department. It would be too much to invest a speech intended to explain certain legal provisions of a constitutional character to officers, as a "State proceeding". If such a speech could enjoy absolute immunity, it would be impossible to withhold similar immunity from a Lecturer in law in a Government College, making a libellous statement in respect of Judges of the High Court while purporting to deliver a lecture on the Constitution. Learned counsel for the appellant and the Central Government were unable to contend that this would be the case. I am, therefore, clearly of the opinion that the occasion on which the speech was delivered was not one of absolute privilege even if the position of contempt proceedings, could be assimilated to that of libel. In Adam v. Ward (1917 A C 309 at p. 334) it was ruled per Lord Atkinson "that al privileged occasion is, in reference to qualified privilege, an occasion where the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made, has a correspon ding interest or duty to receive it. This reciprocity is essential". To be able to invoke successfully the defence of qualified privilege, it is necessary moreover that the person concerned should be acting in good faith and without any indirect or improper motive. (Halsbury's Laws of England Vol. 24, Third Edition). The ninth Exception to section 499 P. P. C. which is a cognate provision in our statute law is hedged round with similar conditions. I have given reasons above for holding that the appellant could not be said to have acted in good faith in the present case. He made aspersions on High Court Judges which were not strictly germane to the subject of the talk he was delivering and which in fact had no accurate objective basis. The Section Officers, to whom the talk was given, might be interested in knowing what the present constitutional position was as compared with that obtaining previously: But they had certainly no interest or duty to learn that the High Court had been con tumaciously usurping jurisdiction which did not vest in it, according to the appellant, and had remained incorrigible in spite of all "civil" and other methods adopted, to bring the truth home to them. It was no part of the appellant's duty either, to dilate on this particular theme. If he had merely said that a certain view had been taken by the High Courts about the scope of writ jurisdiction and that in the speaker's opinion that was erroneous, no one would have taken any exception to that statement. He clearly overstepped the bounds of fair and bona fide criticism, in using words which held up the Judges to contempt, on an erroneous assumption of facts. Our attention was invited to certain cases by learned counsel in support of the proposition that anything said on occasions of privilege did not call for action in contempt. The cases cited are in the matter of Special Reference from the Bahama Islands (1893 A C 138), Chatterton v. Secretary of State for India‑in-Council ((1895) 2 Q B 189) and Perera v. King (1951 A C 482). The facts of these cases were entirely distinguishable from those of the present case and the authorities are not in point. In the first case, a letter had been written by the Chief Justice of the Bahama Islands to the Press in his private and not in his judicial capacity, and he was criticised by another correspondent in more or less libellous terms. It was held that the libel did not fall within the purview of contempt. No question of privilege arose‑ in that case. In the second case, the libel action was founded by an Army Officer on a certain communication made by the Secretary of State to the Under Secretary of State in order to enable the latter to answer a question in Parliament. This com munication was made in the course of official business and Parliamentary privilege attached to the answer. In the third case, Perera, an officially appointed Jail Visitor had recorded a legiti mate comment on a certain alleged procedure being followed in respect of under‑trial prisoners, on the basis of certain information supplied to him by the Jail Officials. None of these cases provides any parallel to the present proceedings. I am afraid, therefore, that the defence of absolute or qualified privilege is not available to the appellant on the facts of this case. Mr. Mahmood Ali who addressed us as amicus curiae indeed suggested that the defence of privilege could not be allowed to prevail at all in a contempt proceeding. He pointed out that the law of contempt was originally a part of the law of sedition and not of libel and that the only case of privilege which finds mention in the text books in the context of contempt of Court is that relating to the Parliamentary privilege of immunity from arrest and no other species of privilege has been commented upon in any such authority: Even that parliamentary privilege has been negatived in contempt cases. He also quoted the maxim; privilegium non valet contra rem publicam‑a privilege avails not against public interest. He argued that the public interest, in the highest sense, lies in upholding the dignity of the Courts and, con sequently no defence of privilege should be entertainable in contempt matters. There seems to be a good deal of force in these submissions. Neither Halsbury nor Oswald have anything to say concerning the defence of privilege such as has been raised here, while dealing with the subject of contempt of Court. All that can be said perhaps is that the occasion, the surrounding circumstances and the parties between whom the communication passes, may be relevant factors for determining whether the communication should be regarded as calculated' to interfere with the administration of justice and consequently whether the disparaging remarks are reduced to a mere libel as distinguished from contempt, or not. Restricted publicity by itself would not be conclusive in conferring immunity on a libellous statement that tends to lower the dignity of a Court. Reliance was placed in this connection on behalf of the appellant on a decision of the Supreme Court of India, reported as Brahma Prakash v. The State of U. P. (A I R1954SC10). In that case a Bar association had sent complaints against two Judicial Officers to their superior authorities; for the purpose of removing the legiti mate grievances of litigants and counsel and it was held that the contempt, if any, was of a technical character, even if the accusa tions did not amount to a mere libel. The decision is of little assistance in the circumstances of the instant proceedings but even in that case, the learned Judges made the following pertinent observations :‑ "It may be that pleas of justification or privilege are not strictly speaking, available to the defendant in contempt pro ceedings. The question of publication also in the technical sense in which it is relevant in a libel action, may be, inappropriate to the law of contempt." There is authority for the view that a libellous statement which amounts to interference with the course of justice amounts to contempt even though the defendant is prepared to, justify the libel‑Cooles v. Chadwick ((1894) 1 Ch. 347). Tek Chand in his book on the Law of Contempt of Court (1949 Edition) has referred at pp. 163‑164 to cases in which it has been held that any attempt to justify libel is a fresh contempt. The contempt was published here to two thousand officers including those serving in Pakistan Missions in Foreign countries, with the 'consent or at least acquiescence of the appellant and the plea of restricted publicity wears rather thin in these circumstances. No precaution was taken by the appellant to prevent publication to the High Court itself. The plea of inadvertence as a matter of routine, in this connection is of little avail, to wash away the effect of transmission of the pamphlet to the High Court. The officers reached by the pamphlet constitute an important section of the public, who may not only have to deal with cases departmentally relating to writ petitions filed against Government but may also be potential litigants in that field themselves. The plea of qualified privilege, resting as it does on a very slender foundation, in my opinion fails even on this ground. In respect of the petitions for expunction of‑remarks, made on behalf of the appellant and the Central Government, it would be sufficient to say that the remarks in question are pertinent to the facts of the case and could not be said to travel beyond the pur view of the contempt proceedings and the conduct of the parties thereto. The Government had laid itself open to criticism by requesting to be impleaded as a, party and it cannot now be heard to complain that the learned Judges made observations concerning their own contribution to the unfortunate affair. The passages complained of, viz. extracts from paragraphs 4, 6 and 7 to 10 in the judgment of Shabir Ahmad, J., and paragraphs 3 and 6 in the g judgment of M. Yaqub Ali, J. are of that character. In the g application put in on behalf of the appellant, objection was taken to paragraphs 8, 28 and 29 of the judgment of Shabir Ahmad J. Paragraphs 8 and 29, however, do not contain any statement to which any legitimate objection could be taken in the circumstances of this case. They contain observations on matters that fell for comment in the proceedings. In paragraph 28, however, the learned Judge appears to have roundly suggested that had it not been for the fact that the appellant was an employee of the Pakistan State, he would have believed any one who might have told him (the Judge) that the appellant wanted to weaken Pakistan by making the Executive and the Judiciary have scant regard for each other, It may be conceded that the petitioner may have acted thoughtlessly rather than by design in this matter. To that extent the remarks may perhaps be described as uncharitable. What the learned Judge was, however, stressing was that the talk delivered by the appellant tended to create feelings of antagonism between the Judiciary and the Executive. This in my opinion, was not unjustifiable criticism. On the whole, therefore, none of the passages objected to, calls for expunction. In view of the above discussion I would dismiss both the appeals as well as the two applications. I concur in the order proposed by my Lord the Chief Justice regarding payment to the amicus curiae. FAZLE‑AKBAR, J.‑I am also of opinion that these appeals fail. The facts of the case. have already been fully stated and I proceed to consider the question whether the offending passages constitute a contempt of Court. The talk which the appellant Sir Edward Snelson, the Secretary of Law Department to the Government of Pakistan, gave on the "Transitional Constitution of 1958" was printed with his consent for the use of other officers. In the first few paragraphs he deals with the consequences of abrogation of the Constitution. He then points out that the Laws (Continuance in Force) Order, 1938, was promulgated by the President to provide legal means of governing the country. After dealing with some of the provisions of the President's Order he decides to dwell or the subject of prerogative writs. The first part of the paragraph (paragraph 9) is in these terms:‑ "I think everybody has heard about the writs or, as the Law Ministry prefers to call them‑to indicate the source of the power‑the prerogative writs. Between 1956 and 1958 the High Courts had used the language of the 1956 Constitution‑with its reference to orders and directions in the nature of writs‑to claim a jurisdiction to interfere with the Government itself without reference to the strictly defined frontiers of the pre rogative writs. A Court can issue a writ only because the sovereign function is to that extent delegated to it by the Sover eign, that is to say, by the State. Clearly the delegate cannot exercise the power against the sovereign itself, and that has been made clear over centuries of decisions by the Courts in England where the writs first originated by delegation from the King, and this has been followed in the United States where the sovereign power descended to the people and is exercised in their name by the President. As an American Judge recently said: There cannot be two sovereigns, and tile sovereign will not issue a prerogative writ against itself." I think no objection can be taken to the above passage. He then goes on to say‑ "The Law Ministry has had to appeal a large number of times to the Supreme Court to have the position properly estab lished, and has succeeded in every appeal but one. All this has cost a very great deal of money, and to try and put the situation right without having to spend more money or more appeals a clause was inserted in the Order we are discussing giving the High Courts the power to issue the named `Writs' (not `orders or directions' and so on, but writs) of mandamus pad the rest." He then gives reasons for amendment of the relevant Article of President's Order thus :‑ "This was done to indicate as politely as possible, that a writ was a writ, confined to known limits, and the limits could not be exceeded." He then points out‑ "Even with this civility, we have not entirely succeeded even yet, but this clause on the one side, and some very severe observations by the Supreme Court on the other, have at least had the effect of indicating that after all there are limits and that the limits must be observed." He concludes this paragraph with the following observations :‑ "The great thing, in any orderly system of Government (and without orderliness there is chaos) is that every organ of the Government should be best adapted to the work it has to do and should know what that work is and what its own frontiers are. This avoids duplication. It avoids friction. It prevents usurpation of function and consequent uncertainty, with all the public confusion and private misery that it can lead to." In the next paragraph (paragraph 10) while dealing with the terms and conditions of services he refers to A. R. Azar's case (P L D 1958 Lah. 185) in the following terms :‑ "We have never been able to understand the judgment: we would, of course, have appealed against it, and I have no doubt we should have succeeded, but there was no time * * * *" The above passages upon analysis present the following features "(1) They impeach the competency of Courts to deal with writ matters. (2) There are misrepresentations and misstatements of facts, namely, that the Government had succeeded in all appeals but one, and that they had no time to file an appeal in A. R. Azar's case. As a matter of fact, a petition for special leave to appeal was filed and dismissed. (3) There is a deliberate insinuation that in spite of the amendment of the relevant clause of the President's Order, the Court persisted deliberately in giving wrong decisions. (4) They suggest a want of understanding by the High Court of its proper functions in the matter of issuance of writs. (5) They suggest that the exercise of legal ingenuity or usurpation of functions will lead to "public confusion and private misery." These allegations against the High Court, I think, come within the category of contempt which is committed by "scandalising the Court". Sir Edward educated as he is, and filling the situation in which he is placed, could not have been possibly ignorant of the meaning of the expressions that he used in these passages. If his object in giving the talk was entirely his mere anxiety to explain the constitutional points to the officers‑and he had no intention to commit a contempt of Court‑I would have expected a more ample submission from him than that which is found in his written statement. In his written statement he entirely omits any expression of regret for that which is the principal feature of the offence, namely, charging the High Courts of Pakistan with imcompetency and wanton disregard of Law. He also did not hesitate to misrepresent facts in connection with the cases disposed of especially by the West Pakistan High Court. It is evident that anyone reading the offending passages would deduce from them that the High Courts by the exercise of excessive legal ingenuity were deliberately giving wrong decisions in writ matters, that the reprimand of the Supreme Court had not effect on them and that their improper conduct might be disas trous for the country. These passages in my opinion contain a gross and aggravated contempt of Court, a gross contempt in the first instance and very much aggravated by the attitude adopt ed by him in the Court. It shows that after his attention was drawn to it and after he had time for reflection even then he stuck to the terms of his talk. A case of this nature never occurred within my knowledge. It had often occurred that letters had been improperly addressed to Judges sometimes in ignorance and sometimes with improper motive with reference to matters pending before a Court‑but never the highest Law Officer, who was closely connected with the administration of Justice, tried to lower a Court in the estimation of the public. I have not the least doubt that the above passages have the tendency to interfere with the administration of justice by shaking confidence of the officers and others in the Judges of the High Court. The position of the Court has been thus described in King v. Almon (L R 1907 K B 94 at page 100) : "The arraignment of the justice of the Judges, is arraigning the King's Justice; it is an impeachment of his wisdom and goodness in the choice of his Judges, and excites in the minds of the people a general dissatisfaction with all judicial deter mination, and indisposes their minds to obey them; and when ever men's allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, he and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever ; not for the sake of the Judges, as private individuals, but because they are the channels by which the King's Justice is conveyed to the people." All the authorities, therefore, tend to show that to taint the source of justice is a contempt of the highest order. Mr. Abdul Haque, the learned counsel for Sir Edward, has relied on the decision in McLeod v. St. Aubyn ((1899) A C 549) to show that committal for contempt of Court by scandalising the Court itself has become obsolete. This is not correct. Their Lord ships of the Judicial Committee even in that case pointed out that this class of contempt, though obsolete in England, yet survived in other parts of the empire. Modern examples of this may still be found in Rex v. Gray ((1900) 2 Q B 36) and The King v. Dumbabib Ex pane William (52 C L R. 434). In the former case the Judicial Committee themselves did not stick to their opinion that such classes of con‑, tempt were obsolete in England. Mr. Abdul Haque has not contended that in making these allegations Sir Edward did not exceed the limits of fair and legitimate criticism. He has filed extracts from the journal portion of the Calcutta Weekly Notes to show that there is a common practice of even criticising judgments of the highest Court of the country. He has also drawn our attention to the following passage in Andre Paul Terency Ambard v. The Attorney General of Trinidad and Tabago (A I R 1936 P C 141 at page 145.) "But whether the authority and position of an individual Judge or the due administration of justice in concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way : the wrong‑headed are permitted to err therein : provided that members of the public abstain from imputing improper motive to those taking part in the adminis tration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men." The High Court of West Pakistan is alive to its duty in such cases as would appear from the following observations of the Full Bench in the case of Crown v. Amin‑ud‑Din Sahrai (P L D 1949 Lah. 410) :‑ "Judges loath to take proceedings for their own contempt and do not mind any honest criticism of their judgments. They do not claim to be infallible and realise more than anyone else that like other human beings they are liable to err. If, there fore, those who are competent to express an opinion on their deci sions assert that a Judge has gone wrong on a particular question and the opinion is expressed on an appropriate occa sion, no Judge would ever object to the criticism even though he may consider it to be erroneous or unjustified. But if motives are attributed to a Judge and it is alleged that he gave a wrong decision intending to favour a particular party or to oblige or please or in fear of a particular person or authority, the position is different, because the suggestion then is that the very fountain of justice is tainted and consequently that the judgments that stream out of that fountain are impure and contaminated. In such cases it is the bounden duty of a Court to step in to remove a potential menace to the confidence of the public in their judges." In the case of Andre Paul Terence Ambard referred to above, their Lordships of the Judicial Committee also pointed out that the Judges should not mind the genuine criticism "provided that members of the public abstain from imputing improper motive to those who are taking part in the administration of justice". In this case, Sir Edward not only grossly misrepresented the Court's proceedings; but also pointed out that in spite of the amendment of the relevant clause in the President's Order and the reprimand of the Supreme Court the High Court continued to disregard deliberately the provisions of law. Sir Edward was thus really not criticising the judgments, but in the words of the Chief Justice in King v. Almon was trying "to excite in the minds of the people a general dissatisfaction with all judicial determination" with regard to the decisions in writ matters. I entirely agree that proceedings should not be taken for contempt for mere criticism of the Judge or the judicial act, but where such criticism interferes with the administration of justice, either by shaking the public confidence in Courts or by scandalising the Court, proceedings for contempt must be taken. The High Court was, therefore, unable to treat these allegations as unworthy of either answer or even notice. It is also true that judicial person ages can afford not to be too sensitive but that does not mean that any one is entitled to obstruct or interfere with the due course of justice. Mr. Abdul Haque has then contended that the language might not be proper, but there was really no intention to scandalise the Court. This Court while dealing with a similar contention in the case of S. Asrar Hussain v. Crown ((1954) 2 FCR 7: PLD 1954 FC 315) observed :‑ "If a person scandalises a Judge of a Superior Court in such a manner as to bring him within the definition of contempt, it cannot be good defence to the proceedings for contempt that his intention was not to scandalise, because the essential question in such cases is the tendency of writing to lower the authority of the Judge by bringing him into disgrace and not the intention underlying the writing. No one can be allowed to defame, ridicule or abuse a Judge in his public capacity even with the best of motives because if that sort of thing were once held to, be permissible the whole judicial system would readily be brought into utter ‑contempt." Mr. Abdul Haque has next argued that Sir Edward was not responsible for printing of the speech in a pamphlet and for its circulation among the officers including the West Pakistan High Court. In short, his contention was that as Sir Edward was not responsible for its publication he could not be held guilty of contempt. The following facts are not disputed. This talk was given by him to about 80 Section Officers. With his consent the talk was printed into a pamphlet and was distributed not only to other Section Officers, but even to foreign embassies of Pakistan and a copy was also sent to the High Court of West Pakistan. It is, therefore, futile to suggest that Sir Edward had no hand in the publication of this pamphlet or in its circulation. While giving permission for its printing he must have known that it was going to be circulated among a large number of officers. Thus, in my opinion, there was also sufficient publication of the contempt. Now comes the question of privilege. Mr. Abdul Haque has contended that the Government official enjoy some privilege while acting in their officials capacity and their actions cannot be enquired into by a Court of law. He has argued that the talk, having been given by a law Secretary on official duty to the Section Officers with a particular purpose and without intending it for public consumption, did not constitute contempt. The first question is whether Sir Edward was protected against an action founded on the offending passages on the ground that they formed part of a confidential communication between him and his officers. It is true that confidential communications passing between Government officials are doubly guarded, firstly, they are protected from disclosure whether by production of documents or in oral evidence. This protection is given under Official Secrets Act as well as under the Rules of Business of Pakistan, Cabinet Secretariat. It has, however, no direct relation to the question whether the communication itself can form a cause of action. The object no doubt is to enable the persons concerned to communicate freely without fear of exposing themselves and others to action. But the right to have such communication so protected is the right of the Govern ment only. In this sense it is the privilege of the Government. If the Government chooses to withdraw the veil, the law interposes no further difficulty. The communications are then avail able a3 evidence. In this case, the Government by sending a copy of the pamphlet to the High Court withdrew the veil of secrecy which surrounded the communication. As soon as this communication was published, the second protection came into force, namely, how far this communication can form part of a cause of action. In other words, if they have become evidential, are they actionable? Sir Edward claims both absolute and qualifi ed privilege. It is true a communication relating to State matters made by one officer of the State to the other in the course of his official duty is absolutely privileged and cannot be made the subject of an action for libel. (See Chatterton v. Secretary of State for India in Council ((1895) 2 Q 8 189). In the above case, Lord Esher M. R. quoted with approval the following passage from Fraser on the Law of Libel and Slander : "For reasons of public policy the same protection would, no doubt, be given to anything in the nature of an act of state, e.g., to every communication relating to state matters made by one minister to another, or to the Crown." Mr. Mahmud Ali's contention, who has addressed us as amicus curiae, that while privilege protects civil processes, it does not protect processes involving criminal action, seems to have some force in it. (See Wallesly v. Duke of Beaufort (39 E R 538‑2 Russ & Myline 639) and Brahma Parkash v. The State of U. P. (A I R 1954 SC 10). In the case of Brahma Parkas Mukerjea, J., has doubted if the pleas of justifications or privilege are strictly speaking available to a defendant in contempt proceedings. But assuming that such absolute privilege is also available in contempt proceedings the question then arises whether the offending statement was absolutely privileged and therefore no action could be founded on it. In this case Sir Edward was asked to give a talk on the Transi tional Constitution of 1958. I fail to see how the competency of the High Court or misstatement and misrepresentation as regards its judgment would come within the scope of the subject on which he was addressing the officers. In my opinion the impugned statements are not referable or appropriate to the privileged occasion and as such the appellant is not entitled to claim either absolute or qualified privilege. In this connection I may refer to the following observations of Lord Shaw of Dunfermline in Adam v. Ward ((1917) A C 309 at p.348) :‑ "Privileged, however, as the occasion might be, it was con tended that the communication went beyond the occasion and so was not protected by the privilege I humbly think that this is a more correct way of stating the proposition than that usually adopted. Privilege is, a term which is applied in two senses. There is a privilege occasion, and there is also said to be a privileged communication. The former expression is correct; the latter, strictly viewed, tends to error. What is meant with‑ regard to a privileged communication is that it was protected as being within the scope of the privilege attaching to the occasion. The occasion is privileged, the communication is protected. If, accordingly, and in so far as the communication deals with matter not in any reasonable sense germane to the subject -matter of the occasion, the protection is gone the occasion with its privilege does not reach a communication upon this foreign and totally unconnected matter." As the contumacious matter in his statement was not relevant or pertinent to the discharge of his duty, Sir Edward cannot, therefore, claim protection of the privileged occasion. I may also point out that in Chatterton's case (supra) the Court upheld the argument that official communication was absolutely privileged on the ground that the public interest rendered it necessary that it should not be disclosed. The Government themselves have disclosed it not only by sending the printed copies of the impugned statement to their officers in Pakistan and abroad, but also by forwarding a copy to the High Court of West Pakistan. A petition has been filed before us stating that the Government has already issued orders for with drawal of the copies already dispatched. This will, however, not alter the situation. Once it is published the contest as to protection for disclosure is over. The seal is broken. The state ment cannot be resealed. Lastly, it may be mentioned that to constitute a privileged occasion, there must be an interest or duty in the person to whom the communication is made as well as in the person making it. Reference in this connection may also be made to the following observations of Davey, L. J., in the case of Hebdich v. Mac Ilwaine and others ((1894) 2 Q B 54). "The question, whether the occasion on which such publica tion takes place is privileged, depends, in my opinion, on the question whether there is in fact an interest or duty in the person to whom the libel is published : I cannot think that the mistake of the defendant in addressing the communication to the wrong person, or his belief, however honest, that the person to whom it is published has a duty or interest in the matter, can make any difference with regard to the question whether the occasion is privileged." Whatever interests Sir Edward might have, the Section Officers to whom the contempt was published had no interest or duty or power in the matter. Therefore, it may be said that the accasion was not privileged. For these reasons I hold that the appeal filed by Sir Edward must be dismissed. Now comes the question of sentence. When notice was issued by the High Court to Sir Edward he appeared and in his written statement took the plea of legitimate criticism of the judgments of the High Court. He also submitted that he had no intention whatsoever to scandalise the High Court or to bring into contempt the authority of the High Court and that he had made those offending statements in good faith in the discharge of his official duties. It will thus appear that no attempt was made to offer an apology. He also showed no remorse for his conduct and did not utter a single word of regret. At the conclusion of the arguments a petition was filed before us on behalf of the 'Central Government stating "the pamphlet has, as is clear, given offence to the High Court, and since its apparently inadvertent distribution to the High Court, amounted to breach of courtesy which was never intended, the Central Government is sorry that it inadvertently gave offence to the High Court for which it has the highest respect." They, how ever, qualified the above by saying :‑ "This is without prejudice to the claim of the Central Govern ment to immunity in regard to communication made in official confidence within official circle." Sir Edward has also associated himself with the above statement. This certainly cannot be treated as an apology showing conscious ness of a wrong done. It merely expresses regret for sending inadvertently the pamphlet containing the offending passages to the High Court. If he had come before the High Court with and expression of repentance and that sort of statement which would induce the Court to hope that such offence would not be repeated by him‑the High Court, I am sure, would have taken a lenient view of the matter. For the reasons stated above, I would dismiss iris appeal and I hope what has taken place will convince all persons that no station and no rank in life will justify any person to commit a similar offence with impunity. Now I take up the appeal of the Central Government. The High Court has prosecuted not the Government but one of its officers and hence the locus standi of the Government to file an appeal may be questioned in this case. Mr. Ghias Muhammad, the learned counsel for the Government, has submitted that as Sir Edward gave the talk in his official capacity in the official, circle, the Government was interested in preserving the right and privilege of the officers to have free official communication between themselves and to prevent the Courts from breaking in upon this official communication. To my knowledge the Courts so far have not tried to probe into official secrets. Nor are they interested in official communications unless they are subject‑matter of a dispute. The law is conscious of this requirement and enforces it by means of several statutes. (See section 124 of the Evidence Act and official Secrets Act). I have already stated that if, however, they choose to remove the veil of secrecy which surrounds their secret communications they cannot blame anyone else for its disclosure. At the close of the hearing the Government brought to our notice that the offending pamphlet has been withdrawn from circulation. This is, however, not sufficient to purge the contempt. In such cases if the seal is once broken it cannot be resealed. By with drawal of the pamphlet they have merely stopped repetition of the contempt. While dealing with Sir Edward's appeal I have fully discussed the question of privilege. I have already held that the plea of privilege is not available in this case. I would like to point out that in Mr. Long Wellesley's case the Committee of Privilege also resolved that "for contempt of Court the House of Commons most properly do not consider a member of this house privileged". I am, therefore, of opinion that the appeal of the Government should also be dismissed. In conclusion I would like to observe that the Government should remember that the Judges have to discharge responsible and sometimes disagreeable duties, and it is essential that they should be afforded the utmost protection if the administration of justice is to remain independent, clean, fearless, unbiased and impartial. I now take up the applications of Sir Edward and the Government for expunction of certain passages from the judgments of Shabir Ahmad and Yaqub Ali, JJ. I do not consider it necessary to reproduce them in extenso. The trend and purport of the offending passages to which exception has been taken by the Government are as follows. In paragraph 4 of the judgement, Shabir Ahmad, J., describes the Government's application for being added as a party in the contempt proceedings as an "unexpected event". He concludes this paragraph describing it as an "entirely unique" event. In paragraph 6, after quoting the written statement filed by the Government, he observes:‑ "It could be nothing but a hint that the sword of Damocles in the shape of appropriate action for contravention of the Official Secrets Act, 1923 hung over the heads of the Judges of this Court and, therefore, the Judges hearing the case should watch their steps lest they themselves and their colleagues come to grief." He then describes the written statement "as the least law‑respecting document ever presented by a responsible party before a Court of Law of any civilised country". The rest of the paragraph deals with the objectionable nature of the written statement. In paragraph 7, he points out that when the Government appears as a party in a proceeding it cannot claim any higher right than any other party in the said proceedings. He then illustrates this by citing a passage from Sir Thomas Elyot's Book which had been reproduced in Oswald's Book on Contempt. He con cludes the paragraph by saying that if he had known the name of the person " ho had directed the Attorney‑General to put in the written statement on behalf of the Central Government he "would have unhesitatingly dealt with the person in the same manner in which Lord Chief Justice Gascoigne bad dealt with the Prince of Wales:" In paragraph 8, he further dilates on the objectionable nature of the written statement. In paragraph 9, he comments on the conduct of the Attorney General and the Standing Counsel who represented the Central Government before him. In paragraph 10, he points out that the lawyer appearing for the Government has no better right than a lawyer appearing for a private party. He further points out that "if some counsel blindly act just as their clients want them' to act, they do so at some risk because the fact that they do nothing but what their clients wanted them to do cannot avail them" As the Attorney General did not give the information s wanted by the Court he made some pungent remarks against him. The Government has prayed for expunction of the above paragraph as well as paragraphs 3 and 6 from the judgment of Yaqub Ali, J., which also relate to the Government being added as a party anal to their filing a separate written statement. Sir Edward has taken exception to certain passages in para graphs 8, 28 and 29 of the judgment of Shabir Ahmad, J. In paragraph 8, the learned Judge while dealing with the objectionable nature of the written statement filed by the Govern ment, considers the possibility of Sir Edward's giving instructions for its drafting. In paragraph 28, the learned Judge makes some pungent remarks against Sir Edward. In paragraph 29, he again reverts to the written state ment of the Government and made certain observations in that connection. Most of the remarks are in connection with the written state ment filed by the Government. The Attorney‑General's own conduct appeared to have come under comments in the judgment. Shabir Ahmad, J., also made some uncharitable remarks against Sir Edward. Much as I regret some of the remarks, I cannot say that the Judges have gone beyond their functions in making those remarks. No doubt some criticism may be made against some of the language used by the learned Judges, but as they were made in connection with the matter' relevant to the case and in respect of the persons who were before , them, it cannot be said that the learned Judges have travelled beyond their functions and erred in law. Though I do not agree with some of the observations, still I think that no case has been made out for their expunction. I would, therefore, dismiss these petitions. Before concluding I would like to observe that contempt proceedings are meant for safeguarding the honour of the seat of justice which must never be allowed to be rediculed or interfered with. A common man always looks upon a Judge as an impartial, unruffled emblem of justice. If a Judge loses his temper, indulges in improper language, or becomes excitable, then the impersonal concept of the seat of justice gets a rude shock. I have already quoted Justice Wilmot's observations in King v. Almon "that they (Judges) are the channels by which the King's justice is conveyed to the people * * * *". Hence a Judge who adorns the seat of justice should always be careful to maintain the dignity of his office. If a Judge becomes excitable and insultive to a party or a counsel then the confidence of the public is liable to be shaken in the administra tion of justice. B. Z. KAIKAUS, J.‑This is an unfortunate case. I wish it had never occurred. But the responsibility for its occurrence does not lie on the High Court. Had the learned Judges of the High Court not taken proceedings in contempt they would have exposed themselves to the just criticism that they had failed in their duty to maintain the prestige and dignity of the High Court. I will not state the facts which led to the initiation of the proceedings as they are sufficiently stated in the judgment of my lord the Chief Justice, nor is there any need to reproduce in my own judgment the two offending paragraphs. I will proceed to state in the first place the nature and scope of the jurisdiction of the High Courts to commit for con tempt. This is a jurisdiction which by the Common Law of England belongs to the superior Courts. It is an inherent jurisdiction. As stated by Wilmot, J. in his celebrated but undelivered judg ment, the power of the Courts to vindicate their own authority is "coeval with their first foundation and institution". It authorizes the Courts to deal effectively with all that has a tendency to hinder the normal course of justice. The reason for the existence of this jurisdiction is that unless armed with such a jurisdiction the Courts cannot properly function. It arises in three kinds of cases: (1) a disobedience to an order of the Court ; (2) a publication relating to the merits of a dispute pending before a Court ; and (3) an act which scandalizes a Court. In the present case we are concerned with the third kind of contempt. It is committed if there is imputed to the Judges any unfitness, whether on account of incompetence, lack of integrity or otherwise. The essence of this kind of contempt is that it lowers the dignity of the Court. That which lowers the, dignity of Court is an obstruction to the normal course, of justice. The Judges cannot perform their duty properly if they are exposed to libellous attacks. It is necessary as stated by Wilmot, J. " to keep a blaze of glory around them and to deter people from attempting to render them contemptible in the eyes of the public." At the same time, it is essential that the confidence of the public in the Courts be maintained. In order that the words may constitute contempt it is not necessary that they should in fact interfere with the course of justice. All that is needed is that they should have a tendency to do so. It will be impossible to show in any particular case that the contempt did have the effect of obstructing the course of justice. On the other hand, the presumption would be to the contrary, for Judges are presumed not to be affected by any publications constituting contempt. But if this argument were allowed to hold there may never ‑be any, committal for con tempt. In a case where a Judge or Court was scandalized, because of the mere existence of a tendency to obstruct the course of justice the jurisdiction to commit in contempt would be invoked. Contempt partakes too of the nature of sedition and Mr. Mahmud Ali who appeared as amicus curiae cited a passage from Stephen's Commentaries on the Law of England to the effect that this was the original concept of contempt. It may well be so, for the High Court is a part of the Govern ment and anything that brings into hatred or contempt the High Court should also be regarded as sedition. But by a special definition of the word ` Government introduced in section 17 of the Pakistan Penal Code, the word `Government' in section 124‑A has been defined as referring only to the executive government. There does not appear to be any good ground for believing that the intention was to remove words tending to bring into hatred or contempt the Courts of the country from the category of offences and the reason for this amendment probably was that so far as the Courts are concerned they are sufficiently protected by their power to deal with contempt and, at the same time, the jurisdiction to punish any contempt provides a much more speedy and effective remedy, for the High Court can pass orders itself without having to file a regular complaint before a criminal Court. With these observations relating to the nature of this juris diction I proceed to examine the two offending paragraphs. I will in the first place explain the full implication of the two paragraphs; that is, the whole impression that would be created on the mind of the hearer or the reader without referring at all to the correctness of the statements contained therein. In para. 9 the ‑appellant begins by stating that the High Court has made use of words that occur in Article 170 of the Constitution for claiming a power of interference with the working of the Government. The words employed by the appellant are not incapable of suggesting lack of bona fides in the High Court but by themselves and without reference to what follows‑they would not attract much attention and may well have been overlooked. The appellant then explains how obviously unfounded the claim of the High Court to issue writs to the Government was and in proof of the proposition that he has put forward he refers to what looks like a maxim that the sovereign cannot issue a mandate to the sovereign himself. This proposition the appellant says, is established by centuries of decisions in England and has even been accepted in America. The impression created up to this point on the mind of the reader is that the High Court is assuming juris diction in the face of a proposition which is logically quite clear and is established by a consistent course of authority extending over centuries so that there cannot be the slightest doubt about it. The appellant continues to say that for estab lishing the proposition that a writ did not lie against the Government a number of appeals were filed against the orders of the High Court before the Supreme Court and that in all these cases except one it was held that the High Court could not issue writs against the Government. However, in spite of all these decisions the High Court did not stop issuing writs to the Government. Here the reader of this pamphlet would understand that although the Supreme Court has the power to lay down law for all the Courts of Pakistan, the High Courts were deliberately acting contrary to law as laid down by the Supreme Court, and any further assumption of such jurisdiction was neces sarily mala fide, obstinate and contumacious. The appellant then explains that as the Government did not want to spend more money on filing appeals against the orders which the High Courts continued to pass in spite of the declaration of law by the Supreme Court the Government thought it proper to make an amendment of the law by deleting the words `order and direction' so as to indicate to the High Courts that they had been acting illegally and here the appellant indulges in language which is clearly intended to give offence. Sarcastically the appellant calls it a polite act, but what he means is that by this amendment a rebuke was being administered to the High Courts who could not without such ‑ rebuke realize that "writs are writs and that the limits could not be exceeded". This rebuke too had not the desired effect. However, the amendment as well as some severe observations made by the Supreme Court as to this illegal exercise of jurisdiction did at least indicate to the High Courts that "after all there are limits and that the limits must be observed." The High Courts are in accordance with these statements institutions which need .a number of processes before they can realize that limits are limits. The appellant ends by drawing a. moral from this attitude of the High Courts. He points out that if an organ of the Government evceeds its jurisdiction the result is friction between the organs, public con fusion and private misery. As the appellant has himself accepted in his viva voce examination he was by this example demonstrating to the Section Officers the evil effects of excess of jurisdiction by an organ of the Government. This is a file picture of the High Courts in Pakistan. They first assume a jurisdiction which they obviously do not have. The Government by its amendment tells them that they have no such jurisdiction. They remain unaffected. The Supreme Court declares that they have no such jurisdiction. They still continue to exercise that jurisdiction. Their acts result in friction between the Government and the High Court, public confusion and private misery. In paragraph 10 the attack is more on the competency of the Courts than on their contumaciousness. The appellant speaks of the case of A. R. Azar v. Pakistan (P L D 1958 Lah. 185). Wherein the High Court held that under r. 56 of the Fundamental Rules the Government was not entitled to grant extensions to certain officers. This decision had been given on the petition of an officer who was affected by this extension of service. The severe and prolonged attack on this judgment appears to be out of place because according to what is stated in this pamphlet the appellant was explaining to the Section Officers only those constitutional provisions "Without which the Constitution would fall to pieces" and if this was the object of his speech, the appellant was going far beyond its scope. However, to proceed with an examination of the implications of the paragraph, the appellant says: "We have never been able to understand this judgment". These are not words which would be used by a person who does not intend to show disrespect to the person to whose judgment he is referring. It is, urged before us that these words may imply only an admission of one's own intellectual limitations, but apart from the fact that while expressing one's own limitations one does not use such offensive language, the argument wholly falls to the ground when we refer to the next sentence. The appellant is in the next sentence quite sure that if he filed an appeal he would have been successful. So, there is no acceptance of his own limitations, but a plain statement that the judgment is wholly unintelligible and that he is so sure of its being wrong that he has simply to file an appeal to have it set aside. The appellant then gives the reasons for not filing the appeal to which further reference will presently be made. One can very well imagine the impression that would be created on the minds of the audience by what is contained in the two paragraphs. The High Courts are painted as incompetent, contumacious and flagrant examples of the evil effects of the excess of jurisdiction. And these words it may be borne in mind are coming to the Section Officers and other civil servants from a person of the status of the Law Secretary who they would all presume is well versed in law and very careful and precise as to his facts and whose words are not to be doubted. That this was the effect of what he stated is bad enough for the appellant, but the true enormity of his action appears only when we examine the foundations of the charges he brought against the High Court. I wonder what the Section Officers would think if they came to know that the legal proposition put forward in para. 9 which is the sole basis of the condemnation of the High Court as contained in that paragraph was one which even the counsel of the appellant could not defend and the facts stated therein were wholly without any foundation. If we are to look at this paragraph as a criticism of the High Court, the degree of lack of fairness, and the inaccuracy of statements is such that even if the criticism had emanated from a layman it would be surprising. Coming as it is from a person of the position and status of the appellant it is shocking. It will be observed that the whole basis of the attack on the High Court is that according to the High Courts a writ could be issued to the Government under Article 170 of the late Constitution. According to the appellant the High Courts had taken up an impossible position because of the clear principle that a sovereign cannot issue a mandate to the sovereign and because of decisions extending over centuries. But when we look at Article 170 we find that it expressly authorizes the High Courts to issue writ to the Government. I asked learned counsel for the appellant three times as to whether he could advance a single argument in favour of the proposition that under Article 170 a writ could not issue to the Government and he was forced to reply in the negative each time. This means that the appellant himself is unable to put forward any argument, in support of the proposition that writ could not be issued to the Government under Article 170 or at least that if the appellant has any argument it is such that his counsel does not think it proper to place it before us and in fact what possible argument could there be in the face of the wording of Article

170. Is it not surprising then that the High Courts should stand condemned for the simple reason that according to them writs could be issued to the Government under Article 170? What else could they hold? If the High Courts came in for such criticism at the hands of the appellant, because they held that under Article 170 writ could issue to the Government I wonder what the appellant would have said about them had they held that a writ could not be issued to the Government under Article 170 in the face of the express words of Article

170. The appellant has stated that "a number of appeals were filed to the Supreme Court to have the position properly estab lished" and the Supreme Court had held in all cases but one that a writ could not be issued to the Government. The statement is wholly without foundation. The appellant was asked while under viva voce examination whether the Supreme Court had ever held that under Article 170 writs could not be issued against the Government and he replied that he did not know of any such case. On further questioning he was forced to admit that in one case this question had been raised before the Supreme Court but the decision went against the Government. He admitted that he was aware of this judgment and had given instructions that the point be raised in another case. As regards the statement in para. 10, while the appellant said, "We have never been able to understand this judgment." a reference to the judgment in that case shows that the interpretation of Fundamental Rule 56 by the High Court was in accord with the position taken up by the Additional Advocate‑General who appeared on behalf of the Government and the case had been fought on other grounds. Following is an extract from that judgment "The above interpretation of Fundamental Rule 56 was not disputed by the learned Additional Advocate‑General who has appeared on behalf of the respondents. He, however, contended firstly that under Article 180 of the Constitution as every civil servant holds office during the pleasure of the President, the President in spite of what Fundamental Rule 56 lays down had the option of retaining in service respondent No. 2 even after he had attained the age of 55 years; secondly, that the provi sions of this rule have been modified by the Cabinet Secretariat's letter dated the 10th of October 1955 ; thirdly, that the rule itself should be deemed to have been waived when the President agreed to grant extension of service to respondent No. 2 ; and fourthly, that in the circumstances of this particular case the writ asked for cannot be issued." I have reproduced this extract to show that the judgment was not so unintelligible as the appellant told the Section Officers it was. The appellant then went on to state that the reason for not filing an appeal was the urgent need of taking action because certain loan from abroad was made conditional on the continued retention of certain officers. The whole of this statement has been found to be incorrect. As a matter of fact, an appeal had been filed though it was dismissed as infructuous. The statement that there was urgent need of taking action and therefore an appeal could not be filed is incorrect because the case was decided in the High Court on the 22nd of November 1957, the appeal had been dismissed on the 7th of March 1958, and the amendment by which the power to grant extension was introduced was not effected till the 25th of May 1959. In the presence of all that has been stated above what was the attitude of the appellant towards the case? He knew when a notice was issued to him for contempt and he went to defend himself, that he had made a violent attack upon the High Courts on the basis of an indefensible proposition of law and on the basis of facts which did not exist. He knew that he had created in the minds of the Section Officers and other civil servants who read the pamphlet a wholly wrong impression in respect of law as well as facts. He must have been fully conscious of all this when he went to Court, yet he did not feel called upon even with the unfounded statements of fact to express the slightest regret. This case is remarkable for the fact that from beginning to end, i.e., even up to this date, there is no explanation whatsoever on the part of the appellant as to how he made such incorrect statements or how he could misapprehend the legal position under Article

170. It has not‑up to this day occurred to the appellant that he owed in respect of this utterance any apology to any person and his position appears to be that he was perfectly within his rights in using such language about the High Courts and that he wants now a declaration from the Supreme Court that in future too, he would be entitled to use such language, for it has been strenuously argued on his behalf that the words used do not amount to contempt at all. Is it possible that the appellant, a person presumed to be fully acquainted with law, and with the limits of his own right to make libellous attacks, does not at all realize the impropriety of his action? If he was, for instance, a law Secretary in the United Kingdom, could he have made such attacks on the Superior Courts of that country and could he have put forward in that country a claim that he was entitled to continue such attacks? It is hard for me to believe that such would have been his attitude and it is far easier for me to accept that while speaking of the Courts of that country he would have been inspired with sentiments which would have prevented any expression of disrespect to them. The appellant cannot be asked to create such sentiments about Courts of this country for sentiments are involuntary and cannot be created at will, but what he might have done in the United Kingdom on account of sentiment he could very well have done here on account of his duty. I have stated that in the circumstances the ordinary reaction of any person of the position and status of the appellant, who had wronged the High Courts of this country in a flagrant manner might well be expected to have been one of regret. Yet when called upon to answer the charge of contempt the line of defence the appellant adopted was that he went to the Supreme Court for special leave to appeal against the notice issued to him and there urged that in issuing a notice to him the High Court had committed an offence under the Official Secrets Act and the learned Attorney‑General of Pakistan who also attended these proceedings said that he fully supported the contentions of the appellant. That petition was dismissed and the appellant had to appear before the High Court, but one cannot help noting that when the proceedings began there was placed before the learned Judges a document which has been interpreted by them as a threat of prosecution and as will appear from what follows they could not be blamed if they reached such a conclusion. The Attorney‑General filed a written statement on behalf of the Central Government which it will be proper to reproduce in full. It runs: "(1) The speech including the two paragraphs in question was delivered by Sir Edward Snelson, K. B. E., Secretary to the Government of Pakistan, Ministry of Law, Karachi (respondent) in his official capacity to the Section Officers of the Central Government stationed at Rawalpindi. It was exclusively meant for officials and no part of it could in view of the provisions of the Official Secrets Act, 1923, be disclosed to the public. The speech, was later on printed and copies thereof were supplied in normal routine to certain offices of the Government. (2) No official to whom the speech or copies thereof were addressed could under the law communicate the same to the public. So far as is known to the Central Government, the public at large did not come to know of this speech till it appeared in press as an enclosure to the notice for contempt issued to Sir Edward Snelson." This written statement does not expressly refer to the com mission of an offence under the Official Secrets Act as was done by the appellant in his appeal to the Supreme Court against the notice, but it refers to the fact that the responsibility for publication of the pamphlet to the public lies on the High Court and it was filed by the same Attorney‑General who had fully supported the appeal against the notice; and if this written statement was not intended as a threat then its contents were the appellant of publication to the public in general. In any case what happened in Court and which I proceed to state supports the view taken by the learned Judges. When the case was being argued in the High Court the learned Judges who constituted the Full Bench questioned the Attorney- General as to whether by this written statement a threat was being held out to the Judges. Although pressed for an answer he did not say `no' to the question put and the only reply he gave was that he had filed the statement on the instructions of the Central Government. The learned Judges said that they were prepared to face the prosecution, but that they were bound to do their duty towards the High Court for maintaining its dignity. The Attorney General still kept silent. The conduct of the Attorney‑General particularly when viewed in relation to the Petition for Special Leave to Appeal filed in the Supreme Court against the notice to the grounds of which he had lent full support, is a circumstance in favour of the conclusion that a threat was being held out to the learned Judges that they were liable to prosecution. The learned Attorney‑General did not appear before us to contradict the statements in the judgment as to his attitude in Court or to deny that this was the intention of the written statement. Mr. Abdul Haque who appears for the appellant did deny before us as he had done before the High Court that this was the intention of the written statement of the Central Government, but his denial is without any meaning for it is not he who represents the Central Government, and this denial is strange from the mouth of the counsel who himself argued before the Supreme Court that the learned Judges were guilty of violation of the Official Secrets Act in issuing a notice. It has been argued before us that the appellant was acting in the discharge of his duty. I will overlook for the present that it is no part of the duty of a Law Secretary to act as a Law Lecturer, and so far as the question of privilege is concerned, I will deal. with it separately when I come to the questions of law raised but I ask : Was it the official duty of the appellant to poison the 'minds of a large number of very important civil servants of this State, to make them adversaries to the High Courts for life so that they may go on obstructing the High Court at every step and. to undermine their confidence in the High Courts of this country? The appellant knew well that this would be the effect of his words, and every person is presumed to intend the natural consequences of his act. The duty of the Law Secretary is to try to maintain and not to sabotage the dignity and prestige of the Judiciary. When he addresses the civil servants on questions of law and speaks to them of judgments of the High Courts with which he differs he should tell them that the judgment of the High Court is entitled to respect but that his own opinion is different. He should take care against creating in their minds an attitude of disrespect or disregard for the High Courts, for any such impression as he should be well aware has far‑reaching effects. He should add when expressing his own difference of opinion that till the decision of the High Court is set aside by the Supreme Court it is good law and that they will approach the Supreme Court for reversal of the judgment. His talk to them should make plain that even when they differ with the High Court it is their duty to continue to show respect to the High Court in the interests of the country. He should speak not as an antagonist of the High Court but as the defender of its prestige. And when he offers criticism of a judgment let his language be polite, his observations fair, placing both sides of a proposition before his audience, and his fact correct. In order to remove the wrong impression which the offending paragraphs have a tendency to create, it is necessary to state that it is the duty of every faithful servant of Pakistan to maintain the dignity and prestige of the Courts in Pakistan ; this is a duty which he owes not to the High Court but to the country ; he should never presume that the executive government would condone his act if the High Court is attacked ; the executive government may not be satisfied with some judgments of the High Court ; it may have even good reason for doing so, for Judges are but human and take no responsibility for infallibility; in spite of the fact that the executive government is not satisfied with the judgments of the High Court, it will not permit any aspersion on the High Court and will readily take to task any person who brings into disregard the authority of the High Court for the High Court is only a part of the Government ; the responsibility for the stability of a State is primarily that of the executive government and the faith of the people in the Courts is not an insignificant element in the making up of that stability. The appellant had accused the High Courts that by overstep ping their jurisdiction they had caused friction. It is his speech that has caused friction and it was he who was overstepping his jurisdiction, when he made the speech, for he was interpreting the law and interpretation of the law is the function of the judici ary not of the executive. It does not appear to have been realized by the appellant that the law of the country is what the Judiciary says it is, and it is not his opinion that constitutes the law. He is only a legal adviser to the Government. He can advise them to appeal or not to appeal but he cannot assume to himself the jurisdiction of pronouncing what the law is. The attitude of the appellant in connection with these pro ceedings, I regret to have to say, has consistently been one of con tempt. He first uttered words which were obviously open to serious objection. Then, when he was called upon to answer the charge of contempt although he was fully cognizant that his whole attack was based on an indefensible proposi tion and facts which had no foundation he not only disdained to offer any regret but raised an objection that in issuing notice to him the High Court had committed an offence. Then with the full knowledge that he had attri buted to the High Court contumaciousness, that he had cited the High Court as a flagrant example of the evil effects of excess of power he took the plea that it was no contempt of the High Courts of Pakistan to utter such words with respect to them. He argued not only before the High Court but before us that any newspaper editor could any day write all that was contained in the offending paragraphs with respect to the High Court and that he could say the same thing about the Supreme Court. He was forced to take this stand with respect to the Supreme Court also, for if the words constituted contempt of the Supreme Court they would constitute contempt of the High Court also. It has been argued that the occasion was a privileged one because the appellant was acting in the performance of official duty. It would not be easy to support the contention that it is one of the duties of the Law Secretary to lecture Section Officers or other civil servants with respect to the interpretation of consti tutional provisions, but I prefer overlooking this objection and will assume that there was a duty cast on the appellant as there may be on any Law Lecturer appointed by the Government to explain the constitutional provisions to his audience. But the duty could only consist in an exposition of the law or stating such facts as were rele vant to that exposition. It could not include the duty of attributing to the Judges incompetence or contumaciousness. If today a statute was enacted which made it incumbent on the Law Secretary to report whether Judges of High Courts were incompetent or were guilty of misbehaviour and acting in the discharge of that duty he made a report he would certainly be protected. But for a defence of privilege to succeed it would be essential to show that the duty was to state whether the Judges were unfit to hold the job and not that there was a duty to state what the law is. The incompetence or contumaciousness of the Judges is wholly irrelevant to an explanation of constitutional provisions. The interpretation of constitutional provisions is not in any way affected by the fact that the Judges are unfit to perform their duty. At the same time, even if the unfitness of the Judges was a relevant factor (there is not the slightest reason for supposing that it may be so) still the impugned paragraphs would constitute contempt because the personal opinion of the lecturer would be irrelevant as to the actual existence of unfitness. All that the appellant was given expression to was his own opinion. If, on the other band, he was not giving merely an opinion but stating the unfitness of the Judges as a fact he had no authority to do so. He could not give any finding as to such unfitness. It is only the Supreme Court which in a properly constituted proceeding can give a finding as to the unfitness of a Judge and it is the President who can accept or reject that finding. If the contention of learned counsel for the appellant were accepted the logical conclusion would be that any lecturer in law would have authority to make observations disparaging to the Judges or to the High Court. The proposition is on the face of it untenable. No case has been cited before us in which the defence of privilege was set up in proceedings for contempt and Mr. Mahmud Ali who appeared as amicus curiae argued that in contempt matters no question of privilege arises. After giving the matter anxious consideration I have reached the conclusion that the only occasion when words which are disparaging to a Judge or to a Court would not constitute contempt would be when they are authorized expressly or impliedy by statute. The essence of jurisdiction to punish contempt is that an obstruction to the normal course of justice has to be removed. The fact that an act is authorized by statute will show that either it is not an obstruction to the normal course of justice or there exist grounds of public policy even superior to the administration of justice for permitting it. As the law stands at present I can think of only three kinds of proceedings in which the law authorizes the use of words which would lower the dignity of a Judge or the Court They are civil proceedings, criminal proceedings and disciplinary proceedings. This may be illustrated by an example. If a Judge while hearing a case indulges in the use of strong language against a litigant the litigant would be entitled (assuming that no law existed to protect the Judges) to move the civil Court, or the criminal Court and at the same time disciplinary proceedings could be taken against the Judge. In all these cases a reference could be made to the behaviour of the Judge which if made other wise would constitute contempt. Unless an act be authorized expressly or by necessary implication by a statute it would be contempt if it lowers the dignity of a Judge or a Court. Another argument put forward was that the pamphlet itself was a privileged document which could not have been legally produced in evidence and therefore could not be made the basis of any proceedings in contempt. In the first place, it is difficult to call a document which contains no more than a lecture on the present constitutional position, which has been distributed in thousands and had even been made a text‑book for future depart mental examinations a privileged document. The fact that it was sent to the High Court is sufficient in itself to bar any argu ment as to privilege. Learned counsel for the appellant was unable to refer to any provision of law which would prevent this argument from being tendered in evidence. He could only refer to section 123 of the Evidence Act which prevents unpublished documents relating to affairs of State from being produced in Court but the pamphlet can hardly be said to relate to any affairs of State and it is impossible to call it unpublished. Reliance was placed on Knupffer v. London Express Newspaper ((1944) A C 116) for the proposition that where a libel refers gene rally to the members of a class an individual member of that class is not entitled to file a suit for damages. It was argued on the basis of this proposition that as reference was made in the speech to the High Courts generally and not to any particular High Court, no High Court could take proceedings for contempt. In the judgment there are observations which show that even when a limited class is referred to an individual member of that class would have a right of action, but it is not necessary to refer c to those observations for showing that the present proceedings for contempt were justified. While every contempt (of the kind with which we are dealing called scandalizing the Court) is a libel on a Judge or the Court, all the principles which govern the law relating to libel are not applicable to a case of contempt. In the case of a libel the foundation of an action is the right of an individual to his reputation ; in the case of a contempt of Court the basis of the proceedings is the obstruction to the course of justice and it is hardly arguable if one High Court is maligned justice will be obstructed, but if both or all the High Courts in a country are maligned the normal course of justice remains wholly un‑interfered with. In this connection, another case was cited i.e. Government Pleader, Bombay v. Tulsidas Subhanrao Jadhav (A I R 1938 Bom. 197), a case in which a speech had been made expressing contempt for all Courts of justice in the Presidency of Bombay. If Sir John Beaumont who was one of the Judges who decided that case really meant to say that the speech did not amount to contempt I cannot with all respect agree, for surely the words used in that speech are calculated to undermine the confidence of the people in the Courts and to bring into disregard the authority of the law. But it does appear to me that the learned Judge was not quite sure that this was not contempt as will appear from the last para graph of the judgment where it is said: "In my opinion the speech does not amount to such a con tempt of Court as should be dealt with by the process of contempt. I would add that the respondent has offered an unconditional apology for any expressions in his speech which do show contempt for the Courts, and, in my judgment, therefore, the rule should be discharged." The learned Judge regards this as a case where proceedings should not be taken for contempt and relies upon the apology that has been offered which would be wholly irrelevant if no contempt had been committed. Reference was made to the observations of their Lordships of the Privy Council in the case, namely, Andre Paul Terence Ambard v. The Attorney‑General of Trinidad and Tobago (A I R 1936 P C 141) where their Lordships said :‑ "Judges and Courts are alike open to criticism, and if reason able argument or exposition is offered against any judicial act as contrary to law or the public good, no Court could or would treat it as contempt of Court." There cannot be the slightest quarrel with the proposition' enunciated in the judgment. Any reasonable criticism of al judgment is to be welcomed. But the criticism of a judgment is to be distinguished however from imputation of incompetence or mala fides to a Judge. While it is legitimate to criticise a judg ment it, is contempt to impute to the Judge anything that lowers him in the public estimation. The mere fact that a judgment is' criticised as incorrect is no imputation against the Judge for the most competent of Judges may deliver a wrong judgment. Also as is stated in the very case which is being relied upon the criticism of a judgment ought to be fair, and the facts should be correctly stated. The principle of fair comment has hardly any relevancy to the circumstances of this case. It has not been urged before us, nor could it be urged on the facts that if we hold the appellant guilty of contempt there should be any reduction in the sentence imposed. Considering the far reaching effects of the offending paragraphs and the attitude of the appellant towards the Court the sentence does not err on the side of severity. Applications have been submitted by the Central Govern ment as well as by the appellant for the 'expunction of certain remarks. While these remarks may not in all cases coincide with the views which Judges of this Court may take the remarks are all relevant to the matters with which the 'learned Judges were dealing and no case has been made out for expunction. I would dismiss these appeals. HAMOODUR RAHMAN, J.‑These two appeals have come before this Court under clause (d) of Article 159 of the late Con stitution. The first has been filed by Sir Edward Snelson, K. B. E.' Secretary to the Government of Pakistan in the Ministry of Law, and the second is by the Government of Pakistan itself. Both are directed against the conviction and punishment . of the appel lant, Sir Edward Snelson, for contempt of Court, by the High Court of West Pakistan. The circumstances, in which the said proceedings for contempt of Court came to be taken, may be briefly stated as follows : Sir Edward Snelson delivered a Talk at Rawalpindi on the 15th of February 1960 to a group of Section Officers of the Government of Pakistan which was later on the 17th of September 1960 printed in the form of a pamphlet by the Manager of the Government of Pakistan Press at Karachi. Twenty‑five copies of these pamphlets were, it appears, later sent to the Government of West Pakistan by the Director of Training and Ex‑Officio Deputy Secretary to the Government of Pakistan, President's Secretariat, Secretariat Training Institute, Rawalpindi. A Section Officer of the later Government acting for its Additional Chief Secretary on the 10th of October 1960 sent a copy of the said pamphlet to the Registrar of the High Court of West Pakistan. This was, in accordance with the usual practice of that Court, circulated amongst the Judges stationed at Lahore. Some of the learned Judges, who read this pamphlet, took exception to certain passages contained therein. The matter was then .brought to the notice of the other Judges of the said Court at Lahore and they took the view that parts of the Talk of Sir Edward Snelson printed in the pamphlet and, in particular, paragraphs 9 and 10 thereof, contained matters which were "calculated to lower this Court in the eyes of those who heard 'the Talk as well of those who read the pamphlet and to undermine the authority of this Court". It was, therefore, decided to issue a formal notice to Sir Edward Snelson to show cause as to why he should not be dealt with under the Contempt of Courts Act, 1926. This notice also required the personal attendance of Sir Edward Snelson at the time of the hearing of the matter. A copy of the said show cause notice was, in accordance with the practice of the Court in such matters, also served on the Advocate. General of West Pakistan. In obedience to the notice Sir Edward Snelson appeared is the matter and showed cause by filing a written statement. The case came up for hearing before a Bench consisting of three of the learned Judges of the said Court ; but curiously enough the learned Advocate‑General, Government of West Pakistan, whole according to the said Governments decision, communicated to the High Court on the 21st of March 1958, should have appeared in such matters on behalf of the Court, applied for time to enable the Provincial Government to decide whether or not he should appear in the case. This request was refused by the Court, as it was of the view that the notice having been served on the 25th of October 1960 the said Government had had sufficient time to enable it to come to a decision on this matter. It appears that thereafter neither the Advocate‑General nor the Additional Advocate‑General nor the Assistant Advocate‑General to the Government of West Pakistan appeared in the matter. But what is still more curious is that on this date of hearing the learned Attorney‑General to the Government of Pakistan appeared and prayed that the Government of Pakistan may be made a party to the, proceedings, although no notice bad been ‑served either on the Attorney‑General or the Government of Pakistan. This prayer was granted and the Government of Pakistan filed a brief written statement consisting of two paragraphs. The first paragraph purported to say that the Talk delivered by Sir Edward Snelson to Section Officers was delivered in his official capacity and was meant exclusively for officials and that no part of it could, in view of the provisions of the Official Secrets Act, 1923, be disclosed to the public. In this paragraph it was also admitted that the Talk was later printed and copies thereof supplied in the normal routine to certain offices of the Government. In the second paragraph it was asserted that to far as is known to the Central Government, the public at large did not come to know of this speech until it appeared in the press as an enclosure to the show cause notice issued to Sir Edward Snelson. This assertion in the last paragraph of the written statement of the Government of Pakistan appears to have been interpreted by the learned Judges constituting the Bench as a veiled threat of prosecution for having contravened the provisions of the Official Secrets Act. Having formed such an impression of the written statement of the Government, it appears that they called upon the learned Attorney‑General to explain how such an objectionable statement came to be incorporated in a document filed in Court. They reply that they received from the learned Attorney‑General did not improve matters, for, the learned Attorney‑General merely contended himself by saying that he had filed the same under the instructions of the Central Government. I mention this matter for two reasons. Firstly, because, I find that the attitude adopted by those representing the Central Government in the High Court had the unfortunate result of surcharging the, atmosphere during the. hearing of the matter in the High Court with a certain amount of tenseness and the learned Judges of the High Court were even inclined to suspect that the hidden hand of the appellant, Sir Edward Snelson, was at the root of this assertion by reason of the fact that a similar statement came to be incorporated also in the petition which was moved without success on his behalf in this Court for special leave to appeal against the issuance of the notice to show cause. Secondly, because, I wish to avoid the possibility of allowing my vision to be coloured by any kind of emotion whatsover, parti cularly in view of the developments that have taken place in this matter during the course of the hearing in this Court. The developments to which I allude are, firstly, that the learned counsel for the Central Government has ultimately decided not to press the appeal. on behalf of the Government but to content himself by merely supporting the appeal of Sir Edward Snelson as he is entitled to do in his capacity as a respondent in that appeal ; secondly, that both the Central. Government and Sir Edward Snelson have expressed regret for the unintentional "breach of courtesy" exhibited by the unwitting distribution of the offending pamphlet to the High Court itself and any offence thereby caused and thirdly, that the Central Government have since withdrawn the pamphlet from circulation. The first has 6f course obviated the necessity of pronouncing upon the competency of the Government's appeal, which was by no means free from doubt in view of the fact that no order adverse to the Central Government had been made in these proceedings. The second and the third developments: deserve to be com mended but I regret that they were postponed till such a late stage when the mischief had already been caused. Notwithstanding that such subsequent endeavour to prevent the further publication of the offending matter cannot, strictly speaking, exculpate the contemner or excuse the earlier publication, I propose to take a more charitable view and deal with the culpability of the offending Talk, as requested in the petition paled in this Court on behalf of Sir Edward Snelson, as if it had riot been printed or circulated. But before I proceed to deal with the offending words I ought to mention that both Sir Edward nelson and the Central Government contended before the High Court that the words uttered by Sir Edward Snelson during the Talk were neither intended to be, nor did in fact have the effect of scandalising the High Courts. They were, according to them, bona fide and fair criticisms of the decisions of the High Courts in cases already decided and were, in any event, privileged by reason of the fact that they were spoken to an audience, which was a strictly official conclave and in the discharge of the official duties of Sir Edward Snelson. So far as `the printing and circulation is concerned, though it is admitted, that Sir Edward Snelson gave his consent to the printing of the Talk, it is said that he did so strictly subject to the reservation that the printed matter would be circulated only to officials of the Government. The defence thus in substance was that neither did the words, read in a fair sense as a whole, amount to contempt nor could any action for contempt of Court be taken against Sir Edward Snelson, for, the words were uttered on a privileged occasion and even otherwise the appellant Sir Edward Snelson could not be held liable for having committed contempt of Court, as the utterance was absolutely privileged. The learned Judges of the High Court of West Pakistan, however, took the view that the only meaning that could reason ably be ascribed to the words used by Sir Edward Snelson in his Talk is that the Judges of the High Courts were either incompetent or, what is worse, deliberately stubborn in usurping a jurisdiction which they did not possess, regardless of the chaos, disarray, confusion and misery that their action had caused. No reasonable person, according to the High Court of West Pakistan, could have read the words used in the Talk in any different sense. This amounted to the form of contempt described as scandalising the Courts of justice. Furthermore, that even though the Talk was not broadcast to the public at large, the publicity given to it was sufficient to take it out of the protection of qualified privilege, which it might otherwise have had, if the audience had been restricted to officials who had any interest or duty in the subject or in knowing what the said appellant thought of the High Courts. Apart from this, it was also held, that the Talk clearly transgressed the limits of fair criticism, for, the language. employed was highly offensive, discourteous, imputed improper motives to the Judges of the High Courts and contained factual inaccuracies. The appellant Sir Edward Snelson was accordingly held guilty of having committed contempt of Court and fined Rs. 2,000, or in default simple imprisonment for one month, and ordered to pay a sum of Rs. 2,000 by way of costs. No order was, however passed against the Central Government. It is unnecessary for me to set out in extenso the offending passages in the Talk delivered by Sir Edward Snelson, or to deal elaborately with the arguments advanced in support of the appeal, as they have been dealt with exhaustively in the judgment of my Lord the Chief Justice, which I have had the advantage of reading. Although I am in respectful. agreement with the conclusion arrived at by him, I propose to indicate, as briefly as possible, my own approach in this matter and the views that I have formed both as to the law governing this case and the result of the applica tion thereof to the text of the Talk under examination. I think, I can do so best by setting out first the principles upon which is propose to test the offending passages. I, for my part, have always taken the view that the power to commit for contempt given to the Courts of record is a power which should be used sparingly and only in extreme cases, not so much for upholding the dignity of the Judges who preside over such Courts of justice but rather to preserve the dignity and respect due to the Court itself. But this does not, in my view, mean that the species of contempt known as scandalising the Courts is now obsolete or that unless there is some kind of actual obstruction to, or interference with, the course of justice or the due adminis tration thereof, there cannot be any contempt. Any doubt that there may have been cast on this question has been set at rest by the decision of the Queens Bench Division of England in the case of The Queen v. Gray ((1900) 2 Q B D 36) which was cited with approval by the Privy Council in Ambard v. Attorney‑General for Trinidad and Tobago ((1936) A C 322). Thus utterances made or writings published, which have the tendency of bringing the Court or a Judge of the Court into contempt or to lower its authority, is a contempt of Court and should not be tolerated, for, it is essential to the proper administration of justice itself that unwarranted attacks should not be made with impunity upon persons presiding over such Courts in respect of their public or official acts. I would not claim to cloak Judges in any "blaze of glory" nor would I maintain that justice is a "cloistered virtue", but would willingly agree with the observations of Lord Hardwicke, of L. C. in the case of In re. Read and Huggonson ((1742) 2 Atk. 469=26 E R 683), that‑:‑ "Judges and Courts are alike open to criticism, and if reason able argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court." I would also be willing to accept the dictum laid down by Lord. Atkin in the case of Ambard v. Attorney‑General for Trinidad and Tobago that :‑ "no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path, of criticism is a public way: the wrong‑headed are permitted abstain to err therein : provided that members of the public from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and riot acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue : she must be allowed to, suffer the scrutiny and respectful, even though outspoken, comments of ordinary men." So far as this form of contempt of scandalising the Court is concerned, I do not think that it is very material whether it is with reference to a case about to be tried, actually under trial or recently adjudged, but I would like to add the qualification that the Courts on their part should not be too astute in such cases to discover hidden meanings in the words used in making such criticism nor be unduly touchy or sensitive nor should they take notice of any and every derogatory comment where there is no real likelihood of any substantial interference with the due course of justice. From, what I have said above it will be observed that I am inclined to accede to the proposition that criticisms of conducts of Judges, which cannot possibly have the tendency to obstruct or interfere with the administration of justice, are not contempts of Courts, even though they may be libellous attacks on Judges. Thus an attack on a Judge for conduct not connected with his judicial functions will not come within the mischief of a contempt of Court [vide In the matter of Special Reference from the Bahama Islands (1893, A C 138)]. But I cannot stretch this to attacks on Judges in their public capacity, for, to my mind, such an attack would inevitably also be calculated to lower the authority of the Courts over which the judges so maligned happen to be presiding and thus tend to interfere with the due course of justice and the proper administration thereof. I would also take this opportunity of pointing out that in dealing with such offensive words or writings we are not concerned with the actual effect produced by them but we are only concerned with seeing as to whether the words are "calculated" to produce the deleterious effects to which I have adverted earlier. As to what the word "calculated" means C would refer to the decision of this Court in the case of Abdus Salam, Editor, Pakistan Observer and another v. The State (10 D L R (S C) 176 : P L D 1958 S C (Pak.) 528), which laid down that "calculated" in this context means that the offending words should be of a nature or character proper or likely to obstruct or interfere in that manner. If that is what we are concerned with, then it seems to me unnecessary to launch into any elaborate examination of the patent or latent meaning of the offending words. If we are con cerned with the nature and character of the words used, then to my mind they should not be torn out of the context but should be read as a whole fairly and reasonably in order to discover whether in their plain are ordinary sense they are capable of producing such a harmful tendency as would bring then within this category of contempt. I would, for my part, be also prepared to concede in this behalf that if the words are reasonably capable of bearing two meanings, one favourable to the contemner and the other unfavourable, then I would prefer the former rather than the latter. It remains for me to say a few words with regard to the plea of privilege raised on behalf of the appellant. An attempt has been made at the Bar to divide it into two categories, namely absolute privilege and qualified privilege. The former, it was said, attaches to the communication itself and when it so attaches is absolute and the communication cannot even be received in evidence. On the other hand, the latter only attaches to the occasion. This, however, as pointed out by Lord Shaw of Dunfermline in Adam v. Ward (L R (1917) A C 309 at p. 348) is not strictly correct, for as he put it "what is meant with regard to a privileged document is that it was protected as being within the scope of the privilege attaching to the occasion. The occasion is privileged the communication is protected". In both the categories, however, the test for determining as to whether such a claim to privilege is well founded or not is that person uttering or writing the words must have a duty cast upon him by some rule of law or morality or by reason of the position he holds in society to express himself in such a manner and that he had acted under such compulsion of duty. Further more, that the person or persons to whom he communicates his utterances or writings must have an equal duty or interest in receiv ing that communication. The case of Chatterton v. Secretary of State for India in Council ((1895) 2, Q B 189) cited as an instance of the plea of absolute privilege being upheld related to a communication made by one officer of state to another in the course of his official duty. It was a document which was communicated to a representative of the department of Government in the House of Commons in order to enable him to answer questions raised in the House. It was held to be absolutely privileged, as communications in Parlia ment enjoyed such privilege by law. As the learned counsel for the Central Government maintained with some amount of assiduity that the pamphlet in this case enjoyed such privilege and could not, therefore, even be produced in any Court of law, I would only like to add that so far as I ' have been able to discover the documents to which such an abso lute privilege has been granted were all documents of state. The plea of privilege, moreover, is not, to my mind, dependent on the admissibility in evidence of the document concerned, for, even if such a document is produced in Court and it is of a kind to which such a privilege is attachable, then the plea will be available not withstanding the production of the document. The extent of the publication is, from this point of view, not also relevant for ascertaining whether the plea of privilege is avail able or not. To say that a contemptuous statement, if made before a small group of persons is merely by reason of the small ness of the group not a contempt is a fallacy. The smallness or largeness of the group of persons to whom the communication is made would be of no consequence, if they were persons who had no duty or interest in receiving the communication. The only relevancy; which the smallness or largeness of the group of persons to whom a communication is made would have, would be on the question of the measure of the punishment‑to be imposed. In this connection I may point out that this Court has held in a case where an Official Receiver wrote to the Judicial Secretary to the Provincial Government to influence the High Court to exercise its powers in the manner suggested in the letter and the letter was communicated to the High Court that a contempt had been committed by the Official Receiver in as much as his letter was an attempt calculated to interfere with the working of the High Court' Privilege was, of course, not claimed in this case but it is worth noting that although in this case too the letter came to be pub lished to the High Court by the Provincial Government, it was the author of the letter who was committed for contempt, vide S. A. Maquith Chowdhury v. The State (11 D L R S C 105 : P L D 1958 S C (Pak.) 425). Keeping these principles in view I now proceed to examine the Talk delivered by Sir Edward Snelson as a whole, and in particular, the offending paragraphs thereof. The Talk appears to have been delivered to acquaint the Section Officers of the changes in the constitutional provisions introduced as a result of political changes. The appellant com mences by telling his listeners that the late Constitution having been abrogated on the 7th of October 1958, all institutions, offices, appointments and laws fell to the ground. He briefly touches upon the results that followed upon such abrogation and then goes on to deal with the position of the Presidency both under the late Constitution and thereafter. Emphasises the fact that the Presidency did not fall with the Constitution and claims that this could only happen because, as always maintained by his department, responsibility for good' government and welfare of the country vested in the Head of the State and not the Legislature. He refers in this connection to a conflict of views between the Sind Chief Court and his Ministry, presumably in the case of Tamizuddin Khan ((1955)1 FCR 155: PLD 1955 FC 240), which was ultimately resolved in favour of the Ministry by the Federal Court in 1955. This furnished, according to the speaker, the foundation for the issue of Presidential Orders, which were resorted to them and again in 1958, to promulgate the Laws (Continuance in Force) Order as a `legal means of governing the country'. From this stage he proceeds to describe the provisions of the last Order and calls Article 2 of the said Order as the essential part of it. He deals in a short paragraph with the effect of its provisions for the government of the country "as nearly as may be in accordance with the late Constitution." Then he skips over the rest of the sub‑paragraphs of the said Article and Article 3 and comes straight to Article 4 and tells his audience as to why it had been devised as an ancillary to Article 2, namely, in order to restore previous laws with necessary adaptations bringing them up to date and clothing them in a `modern dress'. Then abruptly without any prefacing remarks reverts to sub‑Article (4) of Article 2 where the writ jurisdiction of the Supreme Court and the High Courts is dealt with and here follows what the learned Judges in the High Court have characterised as an wholly un provoked and unnecessary attack on the High Court. These are in paragraphs 9 and 10 of the Talk. Here he first of all tells his audience that between 1956 and 1958 the High Courts claimed the jurisdiction to interfere with the Government itself without reference to the strictly defined frontiers of the prerogative writs. He dilates on the scope of writs in England from where he claims the jurisdiction was copied, and seeks to convey to his listeners that, since in England the Courts never claimed to issue any writ to the King, the Ministry of Law was of the opinion that notwith standing the clear provisions to the contrary in the late Constitu tion the Courts in this country also had no jurisdiction to issue such writs to Governments. He then says that the Ministry of Law had to appeal in a large number of cases to the Supreme Court to have the position properly established and succeeded in all but one of such appeals. All this cost a great deal of money, hence, to put the situation right without having to spend more money they had taken the opportunity to modify those provisions in the Laws (Continuance in Force) Order by specifying certain writs by the names they had come to be known in England to empbasise presumably that their scope was also to be limited to the same extent as in England. If the speaker had stopped there possibly no objection could have been taken but he proceeded to dilate on the point thus :‑ "This was to indicate, as politely as possible, that writ was a writ, confined to known limits, and the limits could not be ex ceeded. I have to confess that, even with this civility, we have not entirely succeeded even yet, but this clause on the one side, and some very severe observations by the Supreme Court on the other, have at least had the effect of indicating that after all there are limits and that the limits must be observed. The great thing, in any orderly system of government (and without orderliness there is chaos) is that every organ. of the government should be best adapted to the work it has to do and should know what that work is and what its own frontiers are. This avoids duplication. It avoids friction. It prevents usurpation of functions and consequent uncertainty, with all the public confusion and private misery that it can lead to." In the next paragraph he appears to have realized that he was perhaps overstressing this point and therefore apologises to his audience but maintains that he felt justified in doing so as upon it depends " the whole fabric of the Constitutional Govern ment." Then he proceeds to tell them something about the services, but except for a passing reference to Article 6 of the said Order of 1958, the only point he appears to stress is that power had been expressly taken in this by amendment to provide for extensions of service, as the existence of this was denied by the High Courts. Here again had he left it at that I would have said nothing more, but he went on to say that this judgment of the High Court, presumably in the case of A. R. Azar (P L D 1958 Lah. 185.), could not be understood by this Ministry and they would have appealed against it but unfortunately due to lack of time this could not be done, although he had no doubt that, had the appeal been preferred, it would have succeeded. Then he concludes by pointing it out that, since the High Court had denied this power to the Government, they had instead of waiting for months for an appeal to be disposed of taken the step to amend the law and thus made it clear that the Government were not conceding that the power had to be created. Although this part of the Talk is a little disjointed, I would not go to the extent of saying that it is incongruous with the other parts, as was held by the High Court of West Pakistan, because it was not wholly unconnected with the subject of the Talk, namely, the changes in the constitutional provisions, their purport and effect. The rest of the speech is not material for our present pur poses. It goes on to deal with some of the other Orders passed by the President in 1958 and 1959, and the constitutional provi sions made for determining the succession to the Presidency and for the election of the President under the Presidential (Election and Constitution) Order, 1960. The Talk concludes with an exposition on the position of the President after such election. Reading this Talk as a whole and in as charitable a manner as possible and assuming that the speaker was not actuated by any malice towards the High Courts, I, find it difficult to accept the contention that this Talk did not exceed the bounds of fair criticism. From what has been said above it is clear that the speaker did impute an improper motive to the High Court and that the language used in places was highly sarcastic. It is difficult upon such reading of the Talk to resist the conclusion that the words used by the speaker, may be wholly uninten tionally and without any idea of giving offence to the High Courts ; were calculated to lower the High Courts in the estimation of the persons to whom the Talk was delivered. It must be remembered that the audience consisted of only Section Officers who were neither trained in law nor so vastly experienced yet as to appreci ate the true legal position of the High Court in the constitutional structure on which the speaker was holding forth before them. In this sense, I' am in agreement with the High Court that the words contained in paragraphs 9 and 10 were calculated to create the impression upon the listeners that the Judges of the High Court in this country were either wholly incompetent or, what is worse, so deliberately obdurate as to continue to persist in their erroneous view, notwithstanding that their decisions on this point had been repeatedly reversed by the Supreme Court and the Government had, as politely as possible, tried to point out to them the error of their ways by amending the law. The reference to the incomprehensibility of the High Court's Judgment was also, in my view, an imputation of efficiency. During the course of arguments it was contended on behalf of Sir Edward Snelson that his remarks had reference to decisions concerning service ‑matters and his object in pointing out the difference in opinion between his Ministry and the High Court was to impress upon the Section Officers concerned that they would not always get redress under the writ procedure for their grievances from the High Courts. If this be so, then I can only say that in that event it was a clear invitation to the listeners not to resort to the High Court for the redress of their grievances and to that extent amounted to a direct interference with the adminis tration of justice by the High Court. In assessing the tendency of the words used I have not said anything with regard to the accuracy of the statements made by the speaker in his speech but it must be remembered that it is of the essence of fair criticism that the criticism must be based or accurate facts. As the High Court has pointed out, several of the assertions contained in paragraphs 9 and 10 were not borne out by facts. It is unnecessary to repeat these inaccuracies here again, for; it would suffice to say that at least one of them was a clear mis‑statement which could not but have had the effect of creating a misleading impression. I refer to the assertion that no appeal had been preferred against the decision of the High Court in the case of A. R. Azar, as there was not sufficient time. This assertion is entirely false, for, as is now admitted at the Bar an application for special leave to appeal was in fact moved in the Supreme Court but was dismissed in limine. This was Civil Petition for Special Leave to Appeal No. 7 of 1957. It was also wholly incorrect and misleading to assert that the point of view of the speaker that no writs could have been issued under the late Constitution against the Government had been upheld by this Court. In fact, it appears, that the only case in which the argument was put forward at the Bar of this Court, it was rejected. In the face of these clear inaccuracies ‑the Talk could, by no stretch of imagination, be held not to have transgressed the limit of fair criticism. As for the plea of privilege I need only mention that I am not prepared to accept that Sir Edward Snelson was delivering the lecture in the discharge of his duties as Secretary to. the Ministry of law, Government of Pakistan. It was no part of his normal duties as such Secretary to deliver lectures to Section Officers and there is no material whatsoever upon which it can be said that any one of the 80 or 100 Section Officers to whom the Talk was delivered at Rawalpindi had any duty with regard to the High Court or any interest to know how the High Court was behaving. If what Sir Edward Snelson has said in his Talk had been incorporated in a report to the Law Minister or to the President himself or to the Presidential Cabinet, no one could perhaps have taken any objection, for then the document would have been fully privileged. For these reasons I am in entire agreement with the Order proposed to be made by my Lord the Chief justice. But before I part with this case I would like to make one more observation. I cannot but regard with dismay the attitude of the Chief Administrative Head of the Department of Government which is most concerned with the administration of justice in this country. I would have thought that he of all persons would know that the law of the land has always been regarded to be that which is declared by the Superior Courts in the country to be the law, and it is of the essence of that orderliness to which he himself referred in his Talk that until the law so declared is reversed by another higher Court or is altered by a competent Legislature it is the duty of every one to respect that law and to give effect to it. I am surprised that the Law Secretary in his Talk to the Section Officers never thought fit to impress upon them this aspect of their constitutional duty. The judiciary after all is as much a limb of a Government as the executive itself and the harmonious working of. each demands that each should treat the other with the respect and dignity due to it. So far as the two applications for expunction of remarks are concerned I would also dismiss those applications, for, although some of‑those observations could have been avoided by the High Court of West Pakistan, I am not in a position to say that they were in the present case either wholly extraneous or not pertinent to the consideration of the matter before the High Court. A. H. Appeals dismissed.