P L D 1999 Lahore 156 (PLP)

KARAMAT NAZIR BHANDARI, J.‑‑On 13‑:10‑1998, a Division Bench of this Court made the following reference to the Honourable Chief Justice:‑‑ "We were framing charge in Ehtesab Reference No.26 of 1998 titled 'The State v. Ms. Benazir Bhutto' when Messrs Haji Ahmad Dildar and Hanif Tahir, Advocates, started shouting in the Court. They attributed mala fides and asserted that illegalities are being committed by this Bench. They were asked not to interfere in the proceedings but they shouted following words:‑‑ They were asked to vacate the Court‑room but they persisted to continue interference. Haji Ahmad Dildar, Advocate uttered the following words:‑‑ The above Advocates by their abusive language, words and gestures undermined and scandalized the Judiciary in open Court. This way they have prima facie committed contempt of this Court.

2. As these incidents are becoming common, therefore, we refer the matter to the Honourable Chief Justice for constitution of a larger Bench in public interest." The occurrence was also widely reported on front pages almost by all national newspapers. The Honourable Chief Justice constituted the present Bench to deal with the Reference. On 15‑10‑1998, the Bench assembled and after consideration of the Reference as well as the news items, decided to issue notices to the respondents to appear and show cause as to why they should not be punished for having committed the contempt of Court. They were directed to file their reply. Further notices under section 41 read with section 54 of the Legal Practitioners and Bar Councils Act, 1973, were also directed to issue. Both the respondents have filed their separate replies. The relevant portions of the replies shall be taken notice of and dealt with at appropriate places. However, in their replies, the sequence of facts as appearing in the Reference as well as in the news items have not been disputed. Even the words attributed to each of the respondents have remained unrefuted. The defence, however, as taken in the replies is that these respondents bonafidely believed that learned Senior Member of the Bench was conducting the proceedings in a biased manner and they being Advocates of reasonable standing, had the right to intervene and remind the learned Judge that he should proceed strictly in accordance with law. It is maintained that, in these circumstances, the respondents cannot be said to have committed any contempt.

2. Both Messrs S. M. Masud, Advocate, appearing for Hanif Tahir, respondent, and Sardar Muhammad Latif Khan Khosa, Advocate, appearing for Dildar Khan, respondent, initially contended that the Court should frame charge against each of the respondents and should decide the question of culpability, after recording the evidence for and in defence of the same. Reliance in this connection was placed on the recent judgment of the Supreme Court reported as Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC

823. While the Court noted the objection, it decided to proceed with the hearing of the main question, viz, whether a contempt has or has not been committed for the reason that in their respective replies, the respondents have not controverted the facts. In fact, their replies are in greater detail than the Reference itself and after what is contained therein, it was felt that there was absolutely no necessity to frame any formal charge and the only question required to be determined was whether in view of the undisputed facts, respondents can be said to have committed any contempt or not?

3. It is well‑settled that proceedings in contempt are sui generis and are a species of its own kind. These are neither civil nor criminal in nature. Some reported judgments describe them as quasi‑criminal proceedings. It is nowhere laid down that the allegation in the nature of contempt shall be dealt with like a criminal charge as laid down in Criminal Procedure Code, 1898. The relevant statutory provision is section 7 of the Contempt of Court Act (hereinafter referred to as the Act), which states that "whenever it appears to the Supreme Court or a High Court that there is sufficient ground for believing that a person has committed contempt of Court and that it is necessary in the interest of effective administration of justice to proceed against him, it shall make an order in writing to that effect setting forth the substance of the charge against the accused, and unless he is present in Court, shall require by means of an appropriate process that he appear or be brought before it to answer the charge". In this case, as noted above, on 15‑10‑1998, this Court tentatively came to the conclusion that respondents have committed contempt of Court and accordingly they were issued the notices. This part of law has, therefore, been fully complied with.

4. It is then laid down under subsection (2) that "the Court shall inform A the accused of the ground on which he is charged with contempt of Court and call upon him to show cause why he should not be punishes. This requirement has also been ‑met this case when the necessary notices were served upon the respondents, they received the copies of the Reference and at the time of initial hearing, were duly informed by the Court of the precise nature of allegations. Both of them have filed their respective replies which, as noted above, are in? greater detail and, as also noted, do not controvert the facts/the expressions attributed to each of them. Respondents are, therefore, fully aware as to what is the allegation against them. Subsection (3) of section 7, thereafter, lays down "The Court, after holding such inquiry and taking such evidence as it deems necessary or is produced by the accused in his own defence and after hearing the accused and such other person as it deems fit, shall give a decision in the case. Let it be said at the cost of repetition that in view of the replies, particularly, the non‑rebuttal of facts/expressions attributed to the respondents, no further enquiry or evidence is required to be taken for giving a decision. The exercise is. reduced to the application of law to uncontroverted facts. For all the above reasons, the demand of the learned counsel to frame formal charges was rightly disallowed by the Court and the Bench commenced hearing arguments of the patties with effect from 27‑10‑1998.

5. Reliance of Sardar Muhammad Latif Khan Khosa, Advocate, on Masroor Ahsan's case (supra) for the proposition that framing of a formal charge in all cases of contempt is mandatory, is incorrect While examining the contention of Mr. S.M.Zafar, Advocate, that under subsection (1) of section 7 of the Act read with Rule.4 of Order XXVII of the Rules (Supreme Court Rules), it was mandatory that the show‑cause notice should have contained the substance of the charge against the respondent which was not done in that case, the Court observed and held:‑‑ "It may be observed that the above first contention of Mr. S.M. Zafar seems to be correct as subsection (1) of section 7 of the Act lays down that 'whenever it appears to the Supreme Court or a High Court that there is sufficient ground for believing that a person has committed contempt of Court and that it is necessary in the interest of effective administration of justice to proceed against him, it shall make. an order in writing to that effect setting forth the substance of the charge against the accused, and unless he is present in Court, shall require by means of an appropriate process that he appears or be brought before it to answer the charge'. Similarly Rule 4 of Order XXVII of the Rules (Supreme Court Rules) lays down that 'Notice of the petition alongwith the statement of allegation and affidavit, if any, shall be served on the person complained against hereinafter called the respondent. The notice shall require the respondent to appear in person and unless the Court otherwise directs, he shall appear on each subsequent hearing and, if so required shall enter into recognizance with one or more sureties". In my view, the above provisions are to be read with subsection (1) of section 5 of the Act which provides that 'A High Court or the Supreme Court, on its own information or on information laid before it by any person, may take cognizance of an alleged commission of contempt of the Court'. Since the cognizance under above subsection (1) of section 5 of the Act can be taken by a High Court or the Supreme Court on its own information or on information laid before it by any person, the provision of above subsection (1) of section 7 will be attracted to in both the above modes of taking cognizance and, therefore, in view of its mandatory nature and the substance of the charge should have been served on the respondents and not merely a copy of the petition alongwith the Annexures. I am, therefore, inclined to hold that on 19‑11‑1997 when the copies of the substance of the charge were delivered to the counsel for the respondents in the Court, the compliance of the above subsection (1) of section 7 of the Act was made To put it differently, the same were in the nature of substance of the charge in terms of the aforesaid provision of the Act rather the framed charge. (Underlining is mine). The aforementioned copies of the substance of the charge cannot be treated as the framing of the charge. The charge is to be framed after service of the substance of the charge and receipt of a reply (if any) to the show‑cause notice. Secondly, the above charges were not put to the respondents which is the mandatory requirement for framing a charge as is evident from the above‑quoted portion of the charges hereinabove in para. 51, which indicate that the space for recording the answers to the two questions, namely, 'Do you plead guilty, and do you have anything else to say' is blank. In this view of the matter, in fact and in law the above substance of the charge cannot be treated as the framed charges but the same can be considered as the compliance with the mandatory requirement of section 7 of the Act." (Underlining is mine). As I read the above para. the Court nowhere laid down (I am saying so with respect) that in all cases of contempt, a charge must be framed, in the manner in which it is framed under Criminal Procedure Code, 1898, while trying an accused. I am fortified in my conclusion by the portions underlined in the above passage. Even under Criminal Procedure Code (section 232), the absence of charge or any error in it is not fatal unless an accused is shown to have been misled in his defence. In this case, the respondent was conveyed the substance of allegation, when they were served the notices. Even the copies of the reference were also served upon them.

6. On 27‑10‑1998, Contempt of Court Ordinance, 1998 (Ordinance X of 1998), hereinafter referred to as the Ordinance, was promulgated. Section 23 of the Ordinance repealed the Contempt of Court Act, 1976. Both the learned counsel for the respondents again brought up the question of framing of the charge as in their submission, the contempt proceedings will have now to be governed by the provisions of the Ordinance, since the Act stood repealed. It was stressed that the Ordinance requires the framing of charge as a matter of precondition to the proceedings in contempt. This submission was again rejected on the ground that in the absence of any contrary provision in the Ordinance, section 6 of the General Clauses Act, 1897 would apply. Under clause (e) of section 6 of the General Clauses Act, the legal proceedings already commenced and pending at the time of repeal are saved and are required to be continued C under the repealed law. The examination of the provisions of the Ordinance shows that it does not contain any provision contrary to the provisions of clause (e) of section 6 of the General Clauses Act. The proceedings, therefore, rightly continued under the Act.

7. Assuming, however, that it is the provisions of the Ordinance which would henceforth govern the proceedings, once again we do not find any requirement to frame a charge, as has been insisted. Section 13 of the Ordinance is specific and, therefore, relevant as it deals with the cases of contempt committed in the face of the Court. Section 19 is general and lays down the p overall procedure in all cases of contempt. Section 13 does not require that a formal charge will be framed. Even if section 19 was to be held as applicable again there is no requirement of framing a charge under this section, the contemner is required to appear and answer to the notice either in person or through an Advocate. If, after giving the alleged contemner an opportunity of preliminary hearing the Court is, prima facie satisfied that the interests of justice so require, it shall fix a date for framing a charge in open Court and proceed to decide the matter either on that date or on a subsequent date or dates, on the basis of evidence or after recording evidence. It is on the prima facie satisfaction of the Court that a charge has to be framed and thereafter the Court p will fix a date for such a purpose. Again reverting to the facts of this case and in particular the replies of the respondents, I find that there is absolutely no necessity to frame a charge. This is so and let it be repeated once again, because in their respective replies, the two respondents do not controvert the facts/expressions attributed to them. For the purpose of determining the question; whether respondents are guilty or not, one can confine to their replies, thus excluding the necessity to frame a formal charge or receiving any evidence to support it. In The State v. Muhammad Akbar Cheema PLD 1993 Lahore 658, a case of an Advocate, a five‑Member Bench of this Court held that "show‑cause notice in writing is not necessary when the contempt is committed in view of the court." It was further held "in cases of direct contempt, proceedings are not to take the form of trial. In case of direct contempt, it is not necessary that there be F a written charge, framing of issue, or to hold regular trial or examination and that no further proof is necessary when it is a case of direct contempt".

8. The reply of Haji Dildar Khan, respondent is in Urdu and as, by and large the fate of the case depends upon the reply, the same is reproduced in toto:‑‑

9. The reply of the other respondent, namely, Mian Muhammad Hanif Tahir, is in English and it incorporates four preliminary objections to the vagueness of the charge, prematurity of notice under section 41 read with section 54 of the Legal Practitioners and Bar Councils Act, 1973, the absence of the words used by the learned Judge in the Reference and non ?maintainability of the contempt proceedings in view of the press report attributed to the Honourable Senior Judge of the Referring Bench the words that he had left the matter to Allah. On merits, in para. 1, this respondent enumerates the reasons which according to his claim, led him to bonafidely believe that the Honourable Judge was not conducting the trial legally. In paras. 2 and 3, the sequences of events, subject‑matter of Reference are unfolded as follows:‑‑ "

2. That on 13‑10‑1998, the answering respondent was present in the Court Room as usual Mian Abdus Sattar Najam started arguments on behalf of Mohtarma but Mr. Justice Chaudhary started reciting the charge. On this Mr. Aitzaz Ahsan requested the Court to first hear the arguments on applications wherein jurisdiction of the Court has been challenged and decide it before framing the charge. The Judge rejected the objection. On this Mr. Aitzaz Ahsan said that F.I.R. is not on the record, statements under section 161, Cr.P.C. have not been supplied to the accused, and under section 265‑C, Cr.P.C. trial can be commenced after 7 days of supplies of the copies under section 161, Cr.P.C. and, thereafter, charge is to be framed under section 265‑D, Cr.P.C. but despite that the learned Presiding Judge started reading the charge‑sheet to the accused's counsel. On this Mr. Aitzaz said that trial is not to be conducted in this manner. On this, the learned Judge with gesture of hand said "AISA HI CHALAY GA " At this stage Dildar Khan, Advocate came to the Rostrum and addressing the Court said that 'You are committing murder of law'. Do not do it. 'An altercation took place between the Judge and Mr. Dildar Khan which is detailed in the reply submitted by him. Ultimately the learned Judge ordered the police to take Mr. Dildar Advocate out of the Court‑room. On this Mr. Dildar said 'Do not try to become Maulvi Mustaq whose dead body was eaten out by bees. On your death, your body would be eaten by the dogs. On this the learned Judge said 'AAP JAISAY'. At this stage I being shocked by the manner in which the trial was being conducted, and the language used by the learned Judge, was constrained to say that 'You have destroyed the judiciary'. My response was spontaneous, keeping in view the past conduct of the Judge in trial, accentuated by the use of abusive language by the learned Judge of the High Court which was unbecoming of a Judge of the High Court. My intention was not to undermine or scandalize the judiciary as an institution but to express my feeling about the consequences created on account of the conduct of a Judge of the High Court. The dictum of law that 'Justice should not only be done but seen to be done also' has to be followed by every judicial officer. I, being a member of the High Court Bar Association, am duty bound to protect the dignity and honour of the High Court. If the conduct of a Judge of the High Court during a trial affects, in any way, the dignity, impartiality, independence or honour of the High Court, the answering respondent has every right to interfere and ask the judge to amend his conduct in consonance with the principles of fair administration of justice. I expressed my view in good faith without any motive or malice to interfere in the administration of justice.

3. That I have the highest regard for the superior judiciary of Pakistan and cannot even think of committing contempt of Court. I had neither any intention to commit contempt of Court nor have ever done so. The members of the Bar, being custodian of law, have right to express their views about the role of a Judge in the conduct of a trial, which adversely affects the dignity of the Court. If any remarks of the respondent have given the impression of disrespect to any learned Judge of the Bench, I feel sorry for the same and regret."

10. A bare reading of the replies suffices to show that the words and expressions attributed to them in the Reference as well as in the press have not been disowned. It is also clear that ex facie, the language used by the respondents is scurrilous, disrespectful, highly derogatory and insulting to the Judge and clearly was meant to disturb the order and decorum of the Court. Moreover, respondents by approaching the Bench and using the language they did clearly obstruct and interrupted the proceedings of the Court, and, thus, their actions and words fell, prima facie, within the mischief of section 3 of the Act. It is also not in dispute that both the respondents were not duly appointed counsel in the case before the Referring Bench but acted as, what they‑claim, the "next friends" of the accused.

11. At the start of hearing, both the learned counsel appearing for the respondents were asked to show that the above words and expressions amounted to fair comment about the general working of Court and were made in good‑faith in the public interest and in temperate language. It was contended by the learned counsel that the law of contempt is a relic of colonial past and that it has undergone material change by the pronouncements of the Supreme Court in the Masroor Ahsan's case (supra); that this Bench should also oversee the manner in which the Referring Bench was proceeding with the cases and that respondents as Advocates of considerable standing, enjoy the right to intervene and say what they have stated, as in their perception the learned Bench was proceeding in a biased and partisan manner. In particular Mr. Khosa pleaded that such a right must be conceded to the members of the Bar because for due and proper administration of justice the Bar should be outspoken and courageous rather than servile. In support, the concepts from American and other foreign jurisdictions were cited and for this purpose Mr. Khosa read before us the extracts reproduced in Masroor Ahsan case (supra). Mr. S.M. Masud, Advocate, however, pointed out that his client did not malign the Judge by name or otherwise intervened in the proceedings but confined his protest to saying that the "judiciary has been destroyed". He also pointed out that in his reply this respondent has expressed a feeling of sorrow by stating "if any remarks of the respondent have given the expression of disrespect to any learned Judge of the Bench, I feel sorry for the same and regret".

12. Learned Advocate‑General, on the other hand, submitted that this was a gross contempt as the two respondents were unconnected with the proceedings and were mere onlookers in open Court; that as Advocates, they are subject to greater responsibility to maintain decorum of the Court and to refrain from scandalizing the Court and the Judge and that an unconcerned person whether he be a member of the Bar or an ordinary citizen or even a self‑styled next friend of a litigant cannot be given a right to say what has been stated by these two respondents even if their perception was correct, as claimed by them. He has cited number of judgments wherein in somewhat similar circumstances, the unconcerned lawyers intervened in the Court's proceedings and were duly punished. He has further read from the passages of Masroor Ahsan's case (supra) to show that the law of contempt remains the same and that this case is governed and is to be decided by the Contempt of Courts Act, 1976. He has further pointed out from the same judgment that reference to the cases from American, Australian or Canadian jurisdiction are instructive but are not relevant as the moral values and socio‑economic conditions of Pakistan are different from those countries.

13. We have no intention to burden this judgment with large number of references made by learned counsel for the respondents as well as the learned Advocate‑General. We feel that almost all aspects of contempt law are fairly certain and settled and the only limited question is the applicability of that law to the facts and circumstances of an individual case. We do not find any force in the submission of Mr. Khosa that the law of contempt in Pakistan has undergone a substantial change at the hands of the Supreme Court when it delivered the judgment in Masroor Ahsan's (supra). The law of contempt is contained in Article 204 of the Constitution and the Contempt of Court Act, 1976, applicable to this case and now repealed by the Contempt of Court Ordinance, 1998. It is true that in Masroor Ahsan's case, the Honourable Supreme Court has extensively noted and reproduced the contents of foreign judgments. All these were read before us by Mr.Khosa, Advocate, even though some of the references were totally inapplicable to the facts of the present case. Those references are instructive but are hardly relevant for the decision in this case. As noted, the decision of this case has to be given on the basis of Article 204 of the Constitution read with section 3 of the Act. It has also been noted and it has not been disputed, that the words and expressions admittedly used by respondents ex facie fall within the definition of contempt. Respondents could only get away H with them if they could show that these utterances or comments/expressions fell within proviso (i) to section 3. 1n other words, if it could be shown to be fair comments made in good faith in the public interest and in temperate language, we can hold that respondents have committed no contempt.

14. In order to meet the argument of Mr. S.M. Masud and Sardar Muhammad Latif Khan Khosa, Advocate, that Masroor Ahsan's case has made changes in the law of contempt, the. following passages from that very judgment are profitably reproduced. Mr. Khosa is not correct in his impression that all that is contained in Masroor Ahsan's case including extensive references to foreign judgments and law/treatises is a law declared by the Supreme Court. The mere reference to such judgments and treatises is not the ratio of the judgment nor mere incorporation of these would indicate that cases of contempt in Pakistan are henceforth to be decided not in accordance with Article 204 of the Constitution read with the provision of the Act/Ordinance. At page 1007 of the report, the Court has summarised the gist of various cases/books referred to by the parties. Paragraph 10 says "that the right to criticise does not mean that there is a licence to be scurrilously abusive. The factum as to whether a particular criticism falls within the category may vary from Court to Court and country to country". Page 1006, para 25 of the judgment reads:‑‑ "Since we have a written Constitution of 1973 containing Articles dealing with the rights of the Members of the Parliament and their obligations, we cannot derive any help from the legal position obtaining in England as to the absolute right of freedom of speech enjoyed by the Members of the British Parliament." At page 1017, the last 2/3 lines of the Judgment read:‑‑ "I have already highlighted hereinabove that neither the English case?-law nor the cases of Indian Jurisprudence can be pressed into service on account of different language of the relevant law/Constitution." At page 1190 in para. 76, the Court has held:‑‑ "

76. It may, however, be mentioned that the mere fact that there is written Constitution in Pakistan, America or India having identical provisions with regard to freedom of speech and press will not, by itself, make much difference because the principles of jurisprudence for invoking contempt jurisdiction have considerable variations. Besides, there exist various dimensions including cultural, social, political, national educational level, historical background coupled with variety of legislations, whereupon the approach for initiating contempt proceedings is certainly different. It is important to notice that contempt laws in Pakistan and India initially inherited the principles of British Common Law, British practice and precedents, and also the principles of interpretation on the basis of Contempt of Courts Act, 1926 till after partition. However, the Contempt of Court Act, 1976, was enacted whereby certain set of circumstances have been enumerated and described which if committed are calculated to constitute contempt and broad outline of the procedure is also provided, through said enactment. Therefore, the American practice which grew under different conditions and hardly enjoy powers to punish any person summarily had different approach for dealing with matters where disrespect was not on the face of the Court. Therefore, considering all the aspects apparently the. analogy to rely upon precedents from the American jurisdiction may not be very apt. It would be, therefore, appropriate to refer few important Judgments dealing with Contempt of Court in India and Pakistan." At page 1183, para. 62 is also instructive and may be reproduced with advantage:‑‑ "

62. It may be seen that freedom of speech predicates freedom to communicate intellect and knowledge and promote idea even in hostile atmosphere with freedom to dissent, without being confined to any specified field of human interest. It pre‑eminently seeks free exchange and fearless publication without infringing existing law for improving institutional performance and society in every field of life. In this context it may also be observed that lawyers are officers of the Court. Under the old clich? they are deemed to be wheels of the same chariot, therefore, for its smooth functioning trey are expected to conduct themselves in a dignified and respectful manner, both inside and outside the Court. Even when protesting on legal points they are bound to have modest and polite? attitude by using selective Ian . Worthy Advocates by virtue of their professional obligation are required to protect and safeguard the prestige and dignity of the Court and fit against unwarranted onslaughts? Clause (c) of Chapter XII relating to Canons of Professional Conduct and Etiquette of Advocates contains detail about professional ethics of an Advocate which should be invariably observed. Factually responsibility of Advocates with regard to honour and prestige of the courts is greater than an ordinary citizen. While claiming benefit of Article 19 of the constitution concerning freedom to speech . or publication. Obviously they must maintain established convention, professional ethics, settled norms of conduct, regulated by the laws, Bar Councils Act and Supreme Court Rules."

15. Sardar Latif Khan Khosa Advocate, strenuously tried to show that in the facts and circumstances stated in the reply of his client, his perception of the proceedings being conducted by the Referring Bench was legitimate and this Bench should also share the same perception and if that be so, then the respondent acted in good faith and in the public interest. As regards the language used, Mr. Khosa in spite of his best efforts, had to admit that the language was "little intemperate". He also in the same line, argued that because the Referring Bench had started reading the charge‑sheet without determining the jurisdictional questions, the proceedings before it were coram non judice and, as such, interference by respondents and their offending expressions are not culpable as these were not Court proceedings.

16. The argument is without substance on its very face. It is not for this Bench to oversee the working of another Bench or for that matter even to comment upon the same. Referring Bench was lawfully seized of the case and was conducting proceedings in the same. If any accused ultimately thought that the proceedings were being condcuted not in accordance with law, the remedy lay before the Appellate Court. However, even if the order or proceedings are to I be objected to, it has to be in a polite and respectful language. Once the Bench gives a ruling, that brings the matter to an end leaving the party to have recourse to the appellate/revisional forums. We, therefore, reject the contention of Mr. Khosa that the perception of the two respondents as regards the proceedings before the Referring Bench was correct or that this Bench should hold that the Referring Bench was not proceeding with the case in accordance with law. This is not our function. A fortiorari, this was not the function of the respondents who were not even the duly constituted counsel in the case. The law does not' give any right to friends of the accused, whether they be ordinary citizens or the Members of the Bar to start shouting in favour of the accused by approaching the Bench or/and by using highly scurrilous and indecent language. Such a right can only be conferred upon the citizen/litigant, members of the Bar or even Advocates engaged in the case, at the total risk of destruction of the existing judicial system.

17. We have no cudgel or there cannot be any cudgel with the proposition that the Bar must be independent, upright, outspoken and if I may add, competent. It is such a Bar which is an asset to the administration of justice. The argument that a member of 'courageous' Bar has the right to reprimand a Judge and interrupt the proceedings by using threatening and abusive language on account of his 'perception' of the integrity of the Judge, is senselessly naive and does not merit any. attention, muchless serious. No Judge has ever claimed that he is above criticism, but every Judge has a right to insist that in the performance of the duties of his office, he will not be abused and that his orders or judgments will be respected and got rid of in due course of law. The right to protest against a Judge and criticism of his judgment is itself circumscribed by the conditions of criticism having been made in good faith in public interest and above all in temperate language. Mr. Khosa himself admitted repeatedly during the course of his submissions that the language employed by his client was intemperate although he maintained that in view of the circumstances and perceptions indicated in his reply, the use of intemperate language was excusable. We may notice that way back in 1967, one Ishfaq Ahmad Sheikh, Advocate, also claimed a similar right when he interfered in the Court proceedings and criticised the interim order passed by the Judge in proceedings under section 491, Cr.P.C. The words he used were not that offensive. He was not the counsel in the case and this plea that being an Advocate ate had a r ht to criticise the interim order and to incite Ta p of to obey it, was repelled. The above Advocate was held guilty of gross contempt of Court and was sentenced to six months' simple imprisonment and a fine of Rs.1,

500. The case is reported as PLD 1967 Lah. 1231, and this judgment was upheld by the Supreme Court in PLD 1972 SC 39, with only some modification in the sentence. G.S. Gideon was another Advocate assisting the main counsel in a case being heard by a learned Bench of West Pakistan High Court at Peshawar. At one occasion he got up an aversely comment upon the observations made by the Judge. He was proceeded against and was held guilty of contempt even though he pleaded that he suffered from epileptic fits. The conviction was maintained vide judgment reported as PLD 1963 SC

1. Similarly, we have cases of Hakam Qureshi, Advocate PLD 1976 SC 713 and Sh. Shaukat Ali, Advocate, an ex‑Judge and ex‑President of the Bar, reported as PLD 1976 Lah. 355, wherein these Members of the Bar who criticised the working of the Court and, in fact, levelled allegation of corruption etc. were held guilty of contempt. Even an Advocate of the standing and stature of M. Anwar, Bar‑at‑Law, was taken to task by the Supreme Court of Pakistan when he adversely commented on the decisions of that Court while giving an interview. The judgment is reported as PLD 1976 SC

354. The Court held that imputing motives to Judges and alleging or even insinuating their judgments to be inspired by extraneous considerations, like fear or favour of executive, also amounts to contempt of Court. Such imputation, allegation, or insinuation cannot, in any event, be regarded as fair and legitimate comment made in good faith and in public interest on working of Court. Further, at page 377 the Court observed:‑‑ "Before parting with the case, we would like to observe that it has been a matter of considerable regret to us that these proceedings had to be drawn up against a Senior Advocate of the standing of Mr. M. Anwar. It seems to us that the members of the legal fraternity have a special duty to refrain from doing anything which has a tendency to weaken public confidence in the integrity and impartiality of the Courts of law; and, in any case, to act with restraint and dignity when offering comment and criticism on the working of the Courts."

18. In view of the above‑settled position, the argument of learned counsel for the respondents that their respective clients and Members of the Bar with considerable standing, had the right to intervene and use scurrilous language has to be rejected . It has also been argued that these respondents were motivated by good intention as they genuinely felt that the way the proceedings were being, conducted by the Referring Bench would be having adverse effects on the national cohesion/barmony. This argument has again to be rejected as the M intention of the contemner is immaterial as has been held in The State v. Mir Abdul Qayum, Advocate PLD 1964 (W.P.) Lahore 661 and The State v. Ashfaq Ahmad Sheikh PLD 1967 Lah. 1231.

19. It was also contended by Mr. Khosa, once again by referring to Masroor Ahsan's case that because in the cases covered by the said judgment, the Supreme Court deemed it expedient to drop contempt proceedings against Aslam Baig, Dr. A. Basit, Advocate, Muhammad Akram Sheikh, Advocate and Mr. Nawaz Sharif, the present Prime Minister, therefore, these two respondents be treated in the same manner and proceedings against them be also dropped. We have to reject this argument on the simple ground that the proceedings in some of the cases remained pending in the Supreme Court for considerable period and it was in these circumstances that the Court decided not to reactivate the same and to drop them. At pages 1091 / 1092 of the report, it is recorded:‑‑ "It is not discernible, as to why no action was taken pursuant to the above petitions containing such serious allegations which adversely reflected on the integrity and impartiality of this Court. The obvious reason seems to be that the Courts are slow to entertain and to prosecute contempt proceedings, as the cardinal rule in the branch of contempt power in respect of scurrilous attack against a Judge or the Court is a wise economy of use by the Court of this jurisdiction. Silence and steady devotion by the Judges to duty are the best answers to irresponsible criticism. Additionally, the committal for contempt of Court is, a weapon to be used sparingly and always with reference to the interest of the administration of justice. It should be used only from a sense of duty and under the pressure of the public necessity. The object of contempt proceedings is not to afford protection to the Judges personally from imputations to which they may be exposed as individuals, but it is intended to be a protection to the public whose interest would be very much affected if by the act or conduct of any party, the authority of the Court is lowered and the sense of confidence which the people may have in the administration of justice by it is weakened. I am inclined to hold that the prosecution of the above criminal petitions at this stage would not enhance the prestige of this Court, but it may tarnish the same, as Mohtarma Benazir Bhutto is no longer the Prime Minister and no action was taken in respect of the above alleged contemptuous statements/speeches/writings during her two tenures as the Prime Minister. Activating the above cases now when she is no longer in power and already facing a number of cases, may be construed by a layman as motivated. I would, therefore, order that no further action is required to be taken in the aforesaid cases. " In the case of Mr. Nawaz Sharif, the Court did not proceed further for the reasons recorded at page 1085:‑‑ "It appears that the cognizance of the above matter was taken as far back as February, 1995 but no further action seems to have been taken. It may be observed that Mian Muhammad Nawaz Sharif had used the aforesaid few words which may come within the compass of intemperate language, but the theme of the above alleged statement was that the Judges were appointed in the superior Courts not on merits but on political considerations. The above case also falls within the category of the contempt cases which have been initiated against Ardeshir Cowasjee, Muhammad Akram Shaikh, Habibul Wahhab Alkheri and Dr. Abdul Basit. Since in the aforesaid cases I have ordered that no further action is warranted, in the case in hand also I order that no further action is required to be taken." 20: None of the above reasons are available in the present case. It may also be never lost sight of that the question of contempt is always between the very Court and the contemner and each case has to be decided on the basis of its facts? and circumstances. The earlier non‑action of the Court in some different cases or dropping of proceedings can hardly be quoted as a good defence to an action in contempt. We, therefore, reject this contention of learned counsel for the respondents.? ..

21. The submission of Mr. S.M. Masud, Advocate, based on the press report, that since the learned maligned Judge has left the matter to God, the Court should drop the contempt proceedings, does not deserve serious attention. It has been repeatedly maintained that law of contempt is not meant to vindicate the individual Judges but to preserve and protect the honour of the 'Court. Even if an individual Judge leaves the matter to God, the Court itself can proceed to take action if it is considered that the dignity of the Court is to be protected. Even otherwise, the submission on factual plane does not seem to be correct as the learned Referring Bench passed the order of Reference on the same date, viz. 13‑10‑1998 and this suffices to belie the claim on factual ground that the learned maligned Judge is stated to have left the matter to God. In the same line there is no truth in the press reports that some of Judges of this Court prevailed upon the learned Judges of the Referring Bench to make the Reference. The press reports in this connection are highly speculative and are not worthy of credence. In any case, this has nothing to do with the question whether contempt is or is not made out.

22. As made out from their replies, the contempt is grave and grossest of the kind. The two respondents were not the counsel in the case. The claim that IP they were the next friends has to be rejected as the accused was himself present in Court and was also being represented by Messrs Aitzaz Ahsan, Mian Abdul Sattar,Najam and Sardar Muhamamd Latif Khan Khosa, Advocates. The concept of acting as next friends is relevant in law when the accused or a litigant is suffering from disability like minority or imbecility. No such situation has been pleaded. Respondents had, therefore, absolutely no business at all to intervene in the proceedings and to utter the words, they did. The language used by them is Q extremely offensive, disrespectful, threatening and scurrilous. It does not, at all, amount to fair comment. We, therefore, held the two respondents guilty of the contempt and convicted them under section 4 of the Contempt of Court Act, 1976/Article 204 of the Constitution, vide our short order dated 6‑11‑1998.

23. We also held by our short order dated 6‑11‑1998 that the contempt committed by Haji Dildar Khan, respondent, is of grave nature and the language employed by him is extremely offensive and intemperate. In his reply he has justified the comments made by him. This justification amounts to compounding of the offence. Even during the course of lengthy hearing and in spite of observations from the Bench on number of occasions, neither this respondent nor R his learned counsel expressed even a word of regret or remorse. Mr. Khosa, in fact, consistently maintained, that we should return a verdict of not guilty, in spite of the reply It was in these circumstances that we imposed a sentence of four months' simple imprisonment and a fine of Rs.4,000 or in default thereof to further undergo sentence of one month's simple imprisonment, on this respondent.

24. The case of Mian Muhammad Hanif Tahir, Advocate, as regards the quantum of punishment is slightly different. He has not used such an indecent and offensive language. Mr. S. M. Masud, Advocate, is in fact right that his comment although addressed to the Judge, was only general in nature i.e. "you have destroyed the judiciary". In the sequence of events this respondent intervened only when Dildar contemner was ordered to leave the Court. In his reply, even though at the end, this respondent has,, at least, expressed words of regret, although this expression of regret does not qualify to be accepted as apology. We, therefore, took a lenient view and imposed only a sentence of fifteen days' simple imprisonment and a fine of Rs.1,000 or? default, therefore, for further simple imprisonment for seven days, upon this respondent.

25. Both the respondents were also given a notice as to why a Reference under section 41 of the Legal Practitioners and Bar Councils Act, 1973, be not S made to the Bar Council and further as to why pending Reference, their licences to practise law be not suspended under section 54 of the aforesaid Act. Prima facie what the respondents uttered and did, attracts the provisions of section 41 of the aforesaid Act. We do not want to further comment on this aspect lest it prejudices the proceedings under section 41 of the Act. Sardar Muhammad Latif Khan Khosar Advocate, contended that action against respondents under the Contempt of Court Act, 1976, as well as under Legal Practitioners and Bar Councils Act, 1973 will amount to double punishment which is prohibited under Article 13 of the Constitution.

26. There is no force in the contention. Article 13 of the Constitution lays I down that "No person shall be prosecuted or punished for the same offence more than once. Respondents have not been tried on any charge of substantive offence. They have been punished under Contempt of Court Act, 197‑6/Article 204 of the Constitution. If the same acts/omission/warrants another T action under a different law like Legal Practitioners and Bar Councils Act, 1973, it cannot be contended that it amounts to punishing the offender twice. In our short order, therefore, while directing making of a reference under section 41 of the Act, we also suspended the licences of the respondents to practise law till the decision of reference under section 41 (ibid).

27. In the end, we would like to record the oft‑repeated cliche that Members of the Bench or the Bar are part of a system which concerns with the administration of justice. Both are indispensable to each other. We also welcome a strong independent, outspoken and competent Bar. Learned members of the Bar have a right to express themselves about the working of the Courts but the expression must be a fair comment made in public interest and in temperate language. Of late, we have seen that some of the members of the Bar ignore the element of brevity, precision and conciseness in their submissions which only tends to waste the public time. Repetition of submissions in no manner improves the case of a litigant, it only consumes time of the lawyer as well as of the Judge. Relevance and conciseness are the elements of advocacy which must be U seriously taken notice of and practised by the learned members of the Bar. We are sorry to state that in this case Sardar Muhammad Latif Khan Khosa, Advocate, insisted upon reading the copious references from Masroor Ahsan's case even though they were completely irrelevant to the facts and circumstances of the case. We also feel that of late there is a tendency . to politicize cases pending in Courts. Such tendency is in nobody's interest. Cases whether against political leaders or Government functionaries or ordinary citizen must remain legal cases and must be so attended to by members of the Bar and Bench and decided strictly in accordance with law. This will only enhance the prestige of both the members of the Bar as well as the Bench and, consequently, will lead to confidence of the public in the process of administration of justice.

28. The above are the reasons of the short order, dated 6th November, 1998, which shall be deemed to be part of this judgment. M.B.A./S‑283/L ???????????????????????????????????????????????????????????????????? Order accordingly.