P L D 1973 Lahore 778 (PLP)

SHAMEEM HUSSAIN KADRI, J.

‑I have gone through the judgment of my learned brother K. E. Chauhan, J. While concurring I am of the view that the fundamental question for our anxious consideration is as to whether this petition is maintainable. To put it briefly it shall have to be determined whether this Court can take notice of its contempt by a serving Judge of this Court. It would be necessary here to give the background of the law of contempt and its history. Para. 1 of section 1 of the Halsbury's Laws of England, Third Edition, Volume 8 deals with the kinds of contempt in the following words:‑ "The contempts to be discussed herein are mainly those of superior Courts of record, represented for this purpose by the High Court of Justice. Contempt of Court is either criminal contempt, consisting of words or acts obstructing or tending to obstruct, the administration of justice, or contempt fn procedure, consisting of disobedience to the judgments, orders, or other process of the Court, and involving a private injury." The superior Courts have an inherent jurisdiction to punish criminal contempt. Para. 3 deals with jurisdiction to punish criminal contempt and is reproduced as under :‑ "Criminal Contempt is a misdemeanour punishable on Indict ment by fine or imprisonment, or by order to give security for good behavior. The superior Court's have an inherent jurisdiction to punish criminal contempt by the summary process of attachment or committal in cases where an indictment, or an information in the Queen's Bench Division, is not calculated to serve the ends of justice. The power to attach and commit, being arbitrary and unlimited, is to be exercised with the greatest caution, and as the application of this remedy involves the withdrawal of the offence from the cognisance of a jury, it Is only to be resorted to where the administration of justice would be hampered by the delay involved in pursuing the ordinary criminal process." Walker in his book "The English Legal System", Part III, Chapter II has dealt with the subject in the following words :‑ "Her Majesty's Judges control the due administration of justice and have an Inherent jurisdiction to punish conduct which is calculated to prejudice or interfere with the process of the law. Such conduct is termed a contempt of Court. Contempt may be of a criminal nature or of a procedural nature, the later generally termed civil contempt. Criminal contempt is a common law misdemeanour punish able by fine and imprisonment. It consists of conduct, in or out of Court, which amounts to a contemptuous interference with the administration of justice. * * * * * There are many more subtle forms of criminal contempt such as: interfering with jurors or witnesses, the publication of matter during a pending case which is calculated to prejudice a fair trial * * * * * Macmillan on Encyclopaedia of the Social Sciences, Vols. III‑IV, has dealt with the subject on page 302 in the following words:‑ "Contempt of Court in Anglo‑American Law is generally such conduct as impedes the proper administration of justice or tends to bring it into contempt. Acts of contempt may be roughly classified as to their range as follows : contempt, in facie curiae or "in the immediate view and presence, "as they are called in the books, which consist of ouch misbehaviour in the presence of a Court as interferes with its proceedings; con tempt, not in the immediate presence of a Court but which are nevertheless explicit interferences with judicial authority, such as assaults upon witnesses or tampering with persons or property under the jurisdiction of a Court : contempts of process or orders in the course of an action or proceeding) contempt, by publication, consisting of objectionable extra‑forensic criticism of the conduct of a Court with reference to pending cause. * * * * * * * * * * * * * * * * * * * * All legal systems which have reached the stage of maturity have developed closely analogous forms for securing and protecting the administration of justice. But, as must be apparent from its great complexity of classification and its exceptional pro cedure, the Anglo‑American law of contempts is peculiar. The law of contempts has become an exceptionally prominent problem to the common law system, and great abuses have grown up particularly in the United States. While the power to punish for contempt in some form has generally been admitted, the manner and extent of its exercise have precipitated the most bitter contoversies. Each class of contempt has, however, involved different considerations. There has been little or no objection to summary punishment for direct contempts In the Immediate view and presence. Among indirect or constructive contempts the most vehement objections have been raised against punishments for contempt for violation of labour Injunc tions and against the suppression of free criticism of the work of the Courts by the invocation of the doctrine of "contempt by publication", based upon the fiction that an extra‑forensic attack is In effect in Immediate view and presence. The summary power to punish for contempt without the intervention of a jury has been considered particularly aggravating in these classes of cases." On page 304 it has been observed : "It is apparent, however, that not all of these contempts need necessarily be punished to make It possible to vindicate private rights". Decisions in matters of contempt involve not merely private rights but the public wel fare, dignity and supremacy and power of Implementation of orders made by the Justices. Paul P. Ashley in his book "Say It Safely", Fourth Edition 1970, at page 95 has given his view about the law of contempt, In the following words :‑ Any act which significantly derogates the dignity and authori ty of the Court or which tends to Impede or frustrate the administration of justice may be a contempt of Court. The power to punish for contempt is inherent in the Courts. This is deemed essential to the preservation of an independent judiciary and the protection of litigants. judicial decisions, say that "the first requisite of the Court of Justice is that Its machinery be left undisturbed. Hence anyone who introduces himself into the due and ordinary administration of justice is guilty of contempt of Court and subject to punish ment". With this background I now come to Article 206 of the Interim Constitution of Pakistan which bestows powers on the superior Courts In Pakistan to punish any person who abuses, interferes with or obstructs the process of the Court I or scanda lizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or con tempt or does anything which tends to prejudice the determination of a matter pending before the Court; or does any other thing which, by law, constitutes contempt of the Court. The exercise of the power conferred on a Court by this Article in‑ay hoe regulated by law and, subject to law, by rules made by the Court. Much stress was laid by Mr. M. Anwar on the interpretation of words `any person' used in this Article which according so him includes the Judges of the superior Courts. Article 201 of the Constitu tion, which confers powers on superior Courts for the grant of higher prerogative writs defines the word 'person' as under :‑ "'Person' includes any body politic or corporate, any authori ty of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal other than the Supreme Court, a High Court or a Court or tribunal establi shed under a law relating to the Defence Services of Pakistan." A superior Court, therefore, cannot issue a writ to itself or to another superior Court. The interpretation which Mr. M. Anwar wants us to enforce is the right of punishing the members of the Superior Judiciary by one another. If this interpretation is accepted the superior Courts perhaps will have no other task but to array before them the members of the other Superior Courts on one cause or the other, on the application of disgruntled litigant. Obviously one of the litigating party is annoyed with the Judge In his decision, for, he has not the capacity to please both the plaintiff and the defendant. The Legislature never intended this objective which Mr. M. Anwar desires to be practiced, for, in this manner the litigant public will be deprived for good in the determination of their disputes. In the interpretation of words "any person" in clause (2) of Article 206 the members of the superior Judiciary have to be excluded for another reason because if the Court cannot punish for its contempt the President, Vice‑President or the Governor, who are protected under Article 263 there is no reason why Judges should not be granted this privilege. Mr. M. Anwar vehemently argued that by so doing we will be reading something in the Constitution which is not there. This argument is fallacious, for, if a superior Court cannot issue a writ to another member of the superior Court, there will be certainly no power vested in this Court to array a serving Judge before itself for the contempt of one or other members of the Court. Article 206 confers powers on the Superior Judiciary for preservation of their dignity, interference, obstruction and canalization of its members etc. This objective is likely to be negativated if the action proposed by Mr. M. Anwar is resorted to, for certainly the respect of the institution will be lost in the public and the Courts will not be in a position to implement their orders which would likely result in chaos which surely is derogatory to the administration of good Government in a country. Learned Advocate‑General objected to the maintainability of this petition on several grounds including the one that the remedy for the petitioner lay in an application to the President under Article 211 of the Constitution and if the President was satisfied and has refused to take any action in the matter, the disgruntled petitioner cannot be permitted to wreak his vengeance by this malicious petition. If he could not obtain his objective legally he cannot be permitted to do so by any indirect method in having a recourse to this Court under Article 2056 of the Constitution. There is considerable force in the submission of the learned Advocate‑General. For the foregoing reasons this petition cannot succeed and is dismissed. f do not think when a petition Is dismissed in limine it deserves the certificate asked for which is also refused. NASIM HASAN SHAH, J.‑

By a short order passed by us on 31‑1072, this petition was dismissed to limine for reasons to be recorded later. I have had the advantage of perusing the reasons given in support of this order recorded by my Lords Mr. Justice K. E. Chauhan and Mr. Justice S. H. Kadri with which I agree generally, but in view of the extraordinary nature of the petition moved before us, I would like to add another reason, which to my mind, is by itself sufficient to entail the dismissal of this petition in limine.

2. This petition has been moved by two journalists against a Judge 1f dais Court, who had dismissed an earlier petition moved by then against the order of the District Magistrate, Lahore, holding that the declarations of their journal had lapsed on account of their failure to publish it for a certain period. In this petition, they pray that the said learned Judge should be com mitted for contempt of this Court because he attempted to Inter fere with the process of the Court by allegedly trying to influence the members of a Full Bench dealing with another contempt peti tion wherein he was interested. It is submitted that the Judge "is guilty of the grossest contempt of Court as he has attempted to divert the stream of justice and tee influence the Hon'ble Judges hearing the cause". The allegations levelled by the petitioners against tee Judge tend to bring him into hatred and disrepute, and are manifestly scandalous and, therefore, prima facie amount to contempt of Court. In regard to species of contempt, which consists in scandalizing a Judge, truth is not a valid answer, as has been clearly explained in the following observations occur ring in Israr Hussain v. Crown (P L D 1954 F C 313) at page 3251 "But neither before the Chief Court nor before us was cited any authority or opinion that where proceedings inn contempt are initiated against a person who has scandalized a Judge of a superior Court, truth can be successfully set up as a defence. The whole principle of the Law of Contempt is against any such defence and if the law were as contended for, the whole administration of justice would be brought into disrepute because in that case the honour of the Judges would be at the mercy of disgruntled litigants who might with impunity attack the Judges and when proceedings in contempt were taken against them, bring them into further contempt by pleading truth and offering to prove it. Judges would thus be constantly engaged in defend ing their own personal honour against the onslaughts of persons who are parties to causes pending in their own Courts. And where a Judge has thus been dragged into a forensic arena, public confidence in the administration of justice by him would be completely gone and a few such instances would be sufficient to expose the whole system to public ridicule." The same view was expressed in the cases of K L. Gauba(A I R 1942 Lah. 105) and Sir Edward Snelson v. Judges of the High Court of West Pakistan (P L D 1961 S C 237). The same idea was described, in the following picturesque words, by Mr. Justice B. Z. Kaikaus, In the course of his judgment, in the case of Khohdkar v. State (P L D 1966 S C 140) at page 173 : "The law of contempt which makes the integrity of Judges of superior Courts immune from attack is based on sound princi ples of public policy. Justice thrives in an atmosphere of dignity and even derives assistance from pageantry. It is essential for the administration of justice that Judges of superior Courts be absolutely protected from attack for otherwise it would be difficult for them to function at all. Also the con sciousness that he is immune from attack creates in the Judges a sense of his own dignity which is an important factor in the development of a judicious attitude." It is manifest, therefore, that if any action is called for on the basis of the petition moved before us by the petitioners the same would conceivably be called for against them rather than against the respondent. This petition is accordingly liable to rejection on this short ground.

3. On the question whether a petition seeking action against a Judge for committing contempt of Court is at all maintainable, learned counsel for the petitioners, Mr. M. Anwar, referred to the language of sub‑Art. (2) of Art. 206 namely that "A Court shall have power to punish any person who" and rely ing upon the words "any person" occurring therein, submitted that even Judges of the superior Courts were included therein. Both Mr. Justice K. E. Chauhan and Mr. Justice S. H. Kadri have given weighty reasons for holding that the Law‑Maker could not have intended to include the Judges of the High Court and superior Courts within the scope of the words "any person" in the aforesaid Article and have highlighted some of the injurious consequences which would ensue by the acceptance of the inter pretation sought to be put on them by counsel for the petitioners. I may add that the question raised by the learned counsel is more academic than real. I have already pointed out that in the case where a litigant chooses to move a formal petition before the Court in which scandalous allegations are made against a Judge, the mover of such a petition would be liable to be proceeded against for contempt of Court. So far as the other possibility is concerned, namely of one Judge on being apprised of something done by another Judge which may amount to contempt considering taking action suo motu against him, such a thought would militate against the "necessity of maintaining a high degree of comity among Judges of the superior Court", which was emphasized in the judgment of the Supreme Court in the case of Jamal Shah. The necessity for maintaining an "esprit de corps" between a body of officials working in one Department Is of such great importance for the public good, that the Supreme Court of this country has repeatedly drawn attention to it. Much before Its pronouncement in Jamal Shah's case (P L D 1966 S C) the Supreme Court had observed a "It is a paramount necessity that officials of a Government should always act, within the scope of their duties, for the public Interest, and it is very greatly in the public interest that bodies of officials who are concerned in any particular aspect of governmental activity, should act as a single unit, bound to each other by a certain loyalty, always of course within the scope of public interest. Where such a feeling, which may rightly be described as esprit de corps does not exist, it is clear that the processes of government must be gravely prejudiced." (Malik Firoz Khan Noon v. State P L D 1958 S C (Pak.) 333). The maintenance of the closest relations amongst the members of the Superior Judiciary and the maintenance of an "esprit de corps" between the Judges is even more necessary. By tradition, they are brothers to each other and any attempt to set one against the other would lead to disastrous results. Mr. M. Anwar con fessed before us that despite his research Into the matter, he was unable to discover a single instance in judicial history of a Judge of a superior Court taking action for contempt of Court against another Judge of the same Court. This admission amply reveals the completely unreal and the critical nature of the controversy raised before us. The mischief that can be caused by creating It at this stage can, however, be easily imagined.

4. A remedy against "misconduct" committed by a Judge Is, however, available under the provisions of Art. 211 of the Interim Constitution of 1972. In this connection, it would be of relevance to draw attention to paragraph 34 occurring in Halsbury's Laws of England, 3rd Edition, Volume 8, on the subject of Contempt of Court : "

34. Judges of inferior Courts.‑Judges of inferior Courts are punishable by attachment for acting unjustly, oppressively, or irregularly, in the execution of their duty, or for disobeying writs Issued by the High Court requiring them to proceed or not to proceed in matters before them, but a great part of this jurisdiction is virtually superseded by statutes giving the Lord Chancellor power to remove a Judge of an inferior Court for inability or misbehaviour." In so far as a contempt of Court is a species of misconduct and action can be taken against a Judge, who is guilty of misconduct, under Art. 211 of the Constitution, and bearing in mind the mischief that can result from arraying one Judge before another Judge on the plea of alleged contempt committed by one or the other, of his own Court, I am of opinion that the action visnallsed against a Judge under Art. 211 is quite sufficient to enable restoration of proper state of affairs without recourse to the process of contempt.

5. I also concur with the order that there is absolutely no ground for issuance of a certificate of fitness under Art, 186(2) of the Interim Constitution. SHAFI‑UR‑RAHMAN, J.‑

The facts of the case and the law applicable to it are mentioned in the judgments written by my learned brothers K.E. Chauhan, Shameem Hussain Kadri and Nasim Hassan Shah, JJ. which I had the benefit of reading. My reasons for dismissing the petition in limine are as follows: Article 206 of the Interim Constitution, invoked by the petitioners, recognizes the power of superior Courts of Record to punish their own contempt and of Courts subordinate to them. It makes provision that the "exercise of this power may be regulated by law and subject to law by rules made by the Court. The exercise of its punitive jurisdiction is discretionary with the Court. Therefore, on a petition like this the bona fide of the petitioners, the adequacy of the alternative remedy. the substance of the cause, the stage at which and the manner it is brought before the Court are matters to be taken into consideration. Above all, is the consideration of advancement, and only the advancement, of the purposes for which this punitive power is possessed. Applying those standards to the facts of the case I find that the petitioners do not at all satisfy the requirements. I am in complete agreement with my learned brothers that this is not a fit case for a certificate. S.A.H. Petition dismissed.