P L D 1961 (W (PLP)

"Some of these contempt may arise in the face of the Court, as by rude and contumelious behaviour, by obstinacy; perverse ness or prevarication, by breach of the peace or any wilful disturbance whatever; others in the absence of the party, as by disobeying or treating with disrespect the King's writ or the rules or process of the Court, by perverting such writ or process to the purpose of private malice, extortion or injustice, by speaking or writing contemptuously of the Court, or Judges acting in their judicial capacity, by printing false accounts or even true ones, without proper permission, of causes then pending in judgment and by anything in short that demonstrates a gross want of that regard and respect which when once Courts of Justice are deprived of their authority, so necessary for the good order of Kingdom, is entirely lost among the people." According to Lord Hardwick contempt is of three kinds (1) Scandalizing the Court itself. (2) Abusing parties who are concerned in the causes in presence of Court. (3) Prejudicing the public against persons before the cause is heard." . Another definition of contempt of Court may be found in the undelivered dictum of Justice Wilmot in the well‑known Alvin case who said as under : "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 minations and indisposes their minds to obey them and whenever men's allegiance to the Law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of Justice 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."

22. Before proceeding further I will deal with some judicial decisions which were cited by the learned counsel who appeared in the case. Though the written statement presented on behalf of the Central Government did not even hint that it was being pleaded that contempt of Court had not been committed by the respondent, the learned Attorney‑General was allowed to address arguments on the point. His main reliance was on a case from America which is reported as Case No. 11 at page 695 of United States Supreme Court Digest, Volume

5. The decision was to the effect that if the proceedings of a Court are not interfered with by the act under consideration, no contempt of Court was committed. In paragraph 6 of this judgment I have indicated that in the United States of America the law of contempt is not gs stringent as in England and the Commonwealth Countries. I cannot, of course, speak with any confidence on the point, but it appears to me that the reason for the law of contempt being not very stringent in the United States of America is that the freedom of speech guaranteed by the Constitution of that country is almost unlimited, and that at least in some of the states of the United States of America Judges are not appointed but elected for which reason perhaps, their conduct is more open to the scrutiny of the public than in any other country. It will perhaps, be pertinent to ‑point out that though the Constitution of the Islamic Republic of Pakistan which was abrogated on the 7th of October 1958, by its 8th Article guaranteed freedom of speech to the citizens of Pakistan, it made it clear that the freedom was subject to the law relating to contempt of Court and some other offences. Consequently, even if the abrogated Constitution had been ‑in force, the law of contempt of Court would have remained intact in spite of the fact that freedom of speech was guaranteed. In the last paragraph I have mentioned that the contempt of Court Act, 1926, preserved the powers of the High Courts to punish for their own contempt. The power that was preserved came to the High Courts from the Common Law of England and not from the Law in force in the United States. The authority relied N upon by the learned Attorney‑General has, therefore, no applica tion. And though the learned Attorney‑General was not prepared to go to length of supporting every contention of Mr. A. Haque, the learned counsel for the respondent, he did argue that the respondent had not committed contempt of Court and added that was the opinion of the Central Government also. I need hardly emphasise that, under the law of the land, which extremely few in Pakistan, if any at all, would like to see amended in that regard, for the purposes of the decision of a case by a Court of 0 law, irrespective of whether it is a party in the case or not, the opinion of the Government of Pakistan is fully as irrelevant as that of the humblest resident of Pakistan.

23. A number of decisions were cited by the learned counsel for the respondent. It appears to me that while citing the decisions the learned counsel overlooked the rule that a decision given in a case is meant primarily to apply to the facts of that P case and can have but little weight in a case of which the facts are different. The authorities cited by the learned counsel for the respondent were these: (1) In re: Clement, 1877 (46) L J R Ch. Div. 375, which dealt with the case of a solicitor insulting another during the pendency of a case ; (2) Arthur Reginald Prenn v. The King 1951 A C 482, which dealt with a case of a member of Legislature of a country who had recorded a note in a register kept in a jail to the effect that prisoners who were undefended were not heard by the High Court before their appeals were disposed of ; (3) McLeod v. Saint 1899 A C 549 which concerned a person living in a country who had sold a journal printed in another country which contained some disparaging remarks about some Judges of the former country ; (4) Government Pleader v. Tulsidas Subhanrao A I R 1933 Born. 197. wherein some remarks are made as to when Judges should take notice of a contempt of Court ; (5) The Crown v. Amin‑ud‑din Sabrai P L D 1949 Lah. 410, which dealt with ari article in a newspaper criticising the judgment of a Judge of the Lahore High Court and resulted in conviction; (6) Aswam Kumar Ghosh and another v. Arbinda Bose and another A I R 1953 S C (Ind.) 75, wherein it was held that if an impression was created in the minds of the public that Judges of a Court Act on extraneous considerations contempt of Court was committed but apology was accepted; (7) The State v. Editor, Printer and publisher of the Nagpur Matribhumi A I R 1954 Orissa 149 wherein an article about a pending case had been published in a paper and was held to amount to contempt of Court ; and (8) Andre Paul v. Attorney‑General A I R 1936 P C

141. He also read out from an article published in All India Reporter in its September 1960 part wherein a professor in England had criticised a judgment of the Supreme Court of India and also an editorial in the Times, an English newspaper, dated the 6th of January 1960, wherein there was a discussion about the law relating to contempt of Courts and in what respect it called for amendment. I am of the view that reference to the editorial in 'The Times' and to the article which appeared in the September 1960 Part of the All India Reporter was entirely redundant. As, regards the judicial decisions relied upon by the learned counsel for the respondent, I am clear in my mind that while some of them may be said to go against the contentions raised by the learned counsel for the respondent, others were not applicable except possibly some remarks of a general character which occurred in the decision of their Lordships of the Privy Council in Andre Paul v. Attorney‑general (A I R 1936 P C 141). The facts of the case decided by their Lordships of the Privy Council in A I R 1936 P C 141 were that a paper had pointed out the disparity between sentences passed by different Judges in cases the facts of which bore quite some resemblance to each other. There was a con viction for contempt of Court, whereupon an appeal was taken to the Judicial Committee of the Privy Council. From the decision of their Lordships the learned counsel for the respondent relied upon the oft‑cited remarks which occur at page 145 of the report and are these :‑ "But whether the authority or position of an individual Judge or the due administration of justice is 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 motives to those taking part in the administration 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." Nobody can doubt the correctness of this dictum, but if anybody thinks that by saying that justice is not a cloistered virtue, their Lordships of the Privy Council meant that justice was a woman on the streets at the mercy of anyone who wants to take liberties with her, he is thoroughly mistaken.

24. Mr. Mahmud Ali, Advocate, who appeared as amicus curiae, referred to the following cases : S. M. Haq v. The Hon'ble Judges of the High Court of Judicature at Lahore 1953 F C R 206=P L D 1953 F C 247, wherein it was held by their Lordships of the Federal Court of Pakistan that even a counsel who files an appeal against a judgment of the High Court does not have unqualified privilege to say anything that he likes about the judgment under appeal. He also relied on two Australian cases, one The King v. Dumbabin and another (1935 Comm. L R 434) and the other in The King v. Fletcher and another (1935 (Vol. 53) Comm. L R 248) and contended that for the purposes of determining whether it offended against the law the speech or the writing R which was the subject of the proceedings under the contempt of Courts Act should be read as a whole. It is clear that this con tention of Mr. Mahmud Ali is sound in law.

25. Mr. Ghias Muhammad, the learned Standing Counsel for the Government of Pakistan, cited Rex v. B. S. Nayyar (A I R 1950 All. 549) wherein it was laid down that where in a complaint to an authority competent to redress a grievance words which do not tend to interfere with the course of justice are used no proceed ings for contempt should be taken. He also cited State v. Brahama Parkash and others (A I R 1950 All. 556 (F. B.)) which held that criticising the Magistrates and Revenue Officers in a resolution of members of the Bar which was sent to the District Magistrate amounted to contempt of court. He further referred to Halsbury's Laws of England, Vol. 24, paragraphs 22 and 96 to 101.

26. The principles deducible from those of the judicial authorities cited by the four learned counsel which are apt are these. A speech or a writing which is under consideration for determining the question whether contempt of Court was com mitted must be read as a whole because though it may here and there contain objectionable words, its purport may be entirely innocuous. Cases may arise that a speech or writing though innocuous for the major parts may contain very objectionable passages here and there and be clearly culpable. In order that criticism of the judicial acts of Judges should be immune from punishment under the Contempt of Courts Art, 1926, the criticism should be fair and not made with the object of lowering the authority of Court and should not impute motives to Judges nor should it be intended to depict Judges as incompetent people unfit to hold their onerous offices. It is keeping these principles in view that 1 will deal with the question whether paragraphs 9 and 10 of the pamphlet con taining the Talk of the respondent offend against the Contempt of Courts Act, 1926.

27. What I have said in paragraphs 16 to 20 about the Talk and its meaning will have made it clear that the respondent had indulged in what is called scandalizing the High Courts in Pakistan, and there will be no escape from the finding that he had been guilty of contempt of Court unless it be proved that he was protected. The learned counsel for the respondent argued that the respondent having given the Talk in question at the instance of the Government and the Talk having been given to the Section Officers of the Pakistan Government only, he was protected. I cannot accept either of these contentions. Assuming that the person at whose request the respondent gave the Talk in question was above the law, I do not see how the respondent can escape liability if he has contravened the law. There is no evidence on the record that the person who asked the respondent to give the Talk had told him to give the Talk that he actually gave. But assuming that he had and that he U as superior is rank to the respondent, the law is clear on the point that the orders of a superior can be of no avail if the person who obeys those orders contravenes the law of the land. This proposition of law can be aptly brought out by taking the example of a soldier who has been ordered by his officer to kill a man without any legal justification. If the soldier does not obey the officer he thereby makes himself liable under the military law for disobedience of the order s of an officer, but if he obeys them, he is guilty under the law of the land and may suffer the extreme penalty for the murder that he has committed under order of. his officer. The fact, therefore, that the respondent had no intention of giving the Talk and gave it only because he had been requested to do so would not make any difference to his; liability if the Talk has contravened the law of the land. Nor does the second part of the argument of the learned counsel for the respondent have any force. The mere fact that the res pondent was addressing only a gathering of eighty or a hundred Section Officers of the Pakistan Government and not a large gathering would not make any difference to his culpability, though,, the fact that the Judges were scandalized before a small number of people may be taken into consideration when considering the question of the sentence.

28. Here I might deal with the contention of learned counsel for the respondent to the effect that the respondent was not responsible for the publishing of the Talk in the form of a pamphlet and could not, therefore, be held liable for the consequences of the publication. His written statement as well as the statement he made before the Court on the 14th of November 1960 made it clear that it was with the permission of the respondent that the Talk given by him was printed. The fact that the respondent, as he say, did not want the pamphlet to go outside Government circles would indicate that at least at the time when the question of printing his Talk arose he was not unconscious of the fact that parts of his Talk were open to exception. If he was not of the view that the Talk was, at least in parts, open to exception, I do not see what objection he could have had to the public at large knowing the Transitional Constitution by which they were to be governed till a new Constitution comes into being. I will assume for the purposes of the argument of the learned counsel for the respondent that the respondent did not intend the Talk to go out of Government circles, but I do not see how that alters the position in favour of the respondent. If the High Courts have been scandalized before the persons to whom the Talk was given and those who have read the pamphlet, the provisions of the Contempt of Courts Act, 1926, are attracted and the fact that the respondent wanted to keep his views on the Transitional Constitution of Pakistan a guarded secret of which the public at large should not have even an inkling his offence is not washed off. I might here mention that the Talk of the respondent was addressed to and afterwards sent to persons who wield quite some influence by reason of the fact that they hold appointments under Government. Scandalizing the Courts of justice before such persons can have very grave consequences and had it not been for the fact that the respondent is in the service of Pakistan I would have believed anyone who told me that the respondent wanted to weaken Pakistan by making the executive and the judiciary have scant regard for each other.

29. While on this subject I might deal with an argument of learned counsel for the respondent for which the Official Secrets Act, 1923, was pressed into service. Before dealing with the argument I might mention that the learned Attorney‑General was not allowed to address arguments in support of the written statement of the Pakistan Government which has been reproduced in paragraph No. 6 of this order. The reason for this was that the written statement put in on behalf of the Pakistan Govern ment said that the Judges of this Court had contravened the Official Secrets Act, 1923. and no one could, therefore, ask three of those Judges to give a finding on the point one way or the other. It was for this very reason that Mr. Mahmud Ali, Advocate, who, by producing a book which contained the Displaced Persons Act but was marked "for official use only" and by mentioning some other books published by Government containing enact ments or statutory rules, which books too were marked "for official use only", wanted to show that the use of these words merely meant that the books were not for sale and not that they contained official secrets which could not be disclosed without incurring a penalty, was not allowed to address any argu ments who show that the Official Secrets Act had not been contra vened. But irrespective of whether or not the Judges of this Court to decided to issue notice to the respondent had contravened the Official Secrets Act, 1923, by publishing paragraphs 91 and 10 of the pamphlet which had become a part of the record A of the Court when they were made the basis of the notice which A was issued to the respondent, no one can seriously urge that this use of the pamphlet, unforeseen by the respondent though it might be, was not for an official purpose. Mr. A. Hoque, learned counsel for the respondent, argued that as the officials to whom the pamphlet was sent would be making themselves liable to be dealt with under the Official Secrets Act, 1923, if they divulged the contents of the pamphlet to anyone it should be presumed that the pamphlet was not given wide publicity and the respondent should not be held guilty of committing contempt of Court. It is somewhat interesting to note that in the grounds of petition for leave to appeal to, the Supreme Court, presented through Mr. A. Haque, Advocate, of which a copy was delivered to the Deputy Registrar of this Court because the Judges of this Court being parties to the petition, serving a copy of the petition on them was incumbent under the Supreme Court Rules, the respondent had taken precisely the same position regarding the Official Secrets Act, 1923, which the Pakistan Government has taken in the written statement in this Court. This would naturally raise the question whether the respondent had not prevailed upon the person who issued the instructions to the learned Attorney General‑in case those instructions were not issued by the respondent‑to present the written statement and take that plea therein. However, as that question does not require determination in this case, I will say nothing about it except this that, in case he had prevailed upon someone higher in position than himself to instructions for presenting in this Court the written statement containing the plea the objectionable nature of which has been commented upon by me in paragraph 6, which plea he himself had been cautious enough not to raise in this Court either in his written statement or through the con tentions of his counsel, I envy the respondent his powers of persuasions. Mr. A. Haque could not have believed that con veying to anyone, other than an official to whom the pamphlet may be sent, the contents of the pamphlet attracted the Official Secrets Act, 1923, because if he had entertained that belief he would not have read out every word of the Talk of the respondent in open Court where many persons not in the employment of Government were present, in spite of its being pointed out to him by me that if the Official Secrets Act, 1923, applied, his reading out the pamphlet in open Court would amount to its contravention. Or it may be that as he was appearing to defend the respondent, who had the fullest support of the Pakistan Government in this case, Mr. Haque felt confident that even if the Official Secrets Act, 1923, had application, it will not be invoked to his prejudice. But he that as it may, I am clear in my mind that the arguments of the learned counsel for the respondent are without force. The fact that the pamphlet in question was marked "for official use only" would not prevent the officials who read the pamphlet from disclosing its contents to others if they were so minded even if the Official Secrets Act would be contravened by the disclosure. And at any rate it is not necessary to prove in proceedings of this type that the public at large had learnt about the offending passages. In his g statement in Court the respondent said that he had agreed to the e printing of the Talk in the form of a pamphlet on the condition that it did not go outside the official circles and I will assume that this was the stipulation made by the respondent. There are thousands of officials in the employ of the Government of Pakistan and it follows that the respondent had no objection to any of the vast number of the officials knowing what he had said. The statement which Mr. Ghias Muhammad, the learned Standing Counsel for the Pakistan Government, made after consulting some Government officials, in answer to an inquiry by a member of the Bench hearing the case, was to the effect that some copies of the pamphlet had been sent to the Pakistan mission in foreign countries. Even if it be assumed that every official who heard the Talk or read the pamphlet believed that the exposition by the respondent of the Transitional Constitution of Pakistan was such a secret matter that it should remain locked in the secret recesses of the heart of the reader or the listener, as the case may be, and must not be divulged to anyone who was in the employ of the Pakistan Government, there can be no doubt that what the respondent had said about the High Court of Pakistan received vast publicity amongst the officials of the Pakistan Government and this publicity had not been objected to by the respondent. It follows that in case the Talk in question amounted to contempt of Court, the respondent became liable as soon as he gave the Talk to the eighty or a hundred Section Officers of the Pakistan Government at Rawalpindi and he incurred further liability as soon as the pamphlet which contained the Talk was distributed to officials by the person who had the Talk printed with the permission of the respondent. I might once again point out that the notice that issued to the respondent said that the Judges of this Court had been maligned and the authority of this Court had been undermined amongst those persons who had heard the Talk and those who read the pamphlet and not even one single word had been said to the effect that the Court had been maligned or its authority undermined amongst the public at large. I am clear in my mind that there had been more than enough publication of paragraphs 9 and 10 of the pamphlet by the respondent and it cannot be held that because the respondent had not published the Talk to the public at large he had not published it at all.

30. It was next contended by learned counsel for the respondent that as the respondent in his capacity of Secretary of the Law Ministry of Pakistan Government bad to deal with legislation and the appeal work of the Government and in the performance of that duty had to comment upon judgments of the High Courts in Pakistan, the Talk could not be held to have been made with the object of scandalizing this Court or the other High Court in Pakistan. It is undeniable that in his capacity of Secretary of the Ministry of law, the respondent has the right to express his own views about judgments of the High Courts but those views can be expressed by him on confi dential officials files, the contents of which are not broadcast to the world at large or to public servants other than those having C official concern in the matter. If the intention of the respondent was that because of what the considered to be the incompetence of their Judges the High Courts in Pakistan should be deprived of the power to issue writs, it was open to him to address a secret and confidential communication through the Law Minister to the President of Pakistan, but as he was not discussing the matter with an authority competent to take away the powers of the High Courts to issue writs but was addressing people who would scarcely know the difference between a writ and any other process issued by a Court, he cannot claim the protection which would attach to his secret communications in the discharge of his official duties. No one should have the mistaken impression that the fact that he can in certain circumstances do a thing gives him the right to do that under all circumstances. This may be explained by giving an example. A Judge can punish a man after trial and can send him to prison, but the same Judge cannot, sitting at home without holding a trial, send anyone to prison and if he were to do that he would certainly be guilty of the offence of wrongful confinement. A case similar to that of the respondent arose when a litigant wrote disparaging things about a Judge of this Court in an application presented to a Court subordinate to this Court. His case, which is The State v. Abdur Rahman (P L R 1957 Lah. 623 = P L D 1957 B J 6), was dealt with by me and he was sentenced. I held in that case that though it may be permissible .to say certain things about a Judge in the Court which is hearing an appeal against the judgment of that Judge, the same thing, if it is derogatory in nature, cannot be said in a Court from whose judgments the Judge hears appeals. While, therefore, it may have been open D to him to scathingly criticise the Judges of the High Courts before the President of Pakistan, the respondent could not do that before anyone else except the Supreme Court of Pakistan when that Court was engaged in hearing an appeal against a judgment of the Judges in question and even then, as is clear from the decision of the Federal Court of Pakistan in S. M. Haq v. The Honourable Judges of the High Court of Judicature at Lahore (P L D 1953 F C 247), the privilege would not be unlimited.

31. Learned counsel for the respondent also urged that what was contained in paragraphs 9 and 10 of the pamphlet was to a great extent correct and, therefore, contempt of Court could not be said to have been committed. He contended that the respondent believed that even under the abrogated Constitution no writ could be issued to Government, but as the words of Article 170 of that Constitution were clear. I am not prepared to accept the contention that the respondent believed what his counsel said he did. And if the respondent did have that belief, he should hot have had it. His learned counsel added that this at least correct that no writ could be issued to Government even under Article 170 of the abrogated Constitution in service matters. This contention too is devoid of force because when it was raised on behalf of the Government before the supreme Court in Civil Appeals Nos. 95, 96 and 97 of 1956, decided on the 10th of November 1958, which were appeals against a decision of this Court in Mahmood Ali Khan etc, v. The Islamic Republic of Pakistan (P L R 1958 Lah. 619=P L D 1958 Lah. 1) the contention was repelled by their Lordships of the Supreme Court. Mr. A. Haque learned counsel for the respondent, further contended that the respondent had not been far wrong when he said in his Talk that some severe remarks were made by the Supreme Court with regard to the mode of exercise of writ jurisdiction by the High Courts, and in this connection referred to Tariq Transport Company, Lahore v. The Sargodha‑Bhera Bus Service etc., (P L D 1958 S C (Pak.) 437), The State of Pakistan v. Mehraj‑ud‑Din (P L D 1959 S C (Pak.) 147) and Pakistan through The Secretary, National Assembly v. Khandker Ali (P L D 1960 S C (Pak.) 1). It may be that some remarks in these judgments of the Supreme Court are severe, but I do not see why it should have been necessary to mention to the Section Officers of the Pakistan Government that severe remarks were made by the Supreme Court against the High Courts in Pakistan, if the only object of the respondent was to apprise them of the purport of the Transitional Constitution of Pakistan.

32. I will now take up the contention of the learned Attorney‑General that no action should be taken as the alleged contempt was not apparent. The rule on which the learned Attorney‑General relied is salutary, but when applied to the facts of the present case, it cannot be of avail to the respondent. Paragraphs 9 and 10 of the pamphlet containing the Talk given by the respondent are clearly to the following effect :‑ (1) That though no writ could issue to Government, the High Courts in Pakistan had been issuing such writs between 1956 and 1958 and had for that purpose pressed into service the words "order or direction" which occurred in Article 170 of the Constitution of the Islamic Republic of Pakistan ; (2) that in spite of the fact that all appeals in cases in which writs had been issued by the High Courts to Government had been accepted, the High Courts had not been able to understand the true import of writs (3) that though the Law Ministry had, in order that the High Courts should understand that a writ was a writ and nothing but a writ, made a change in the law, neither that change not some severe remarks by the Supreme Court bad succeeded in making the High Courts understand the limits of their jurisdiction with regard to issue of writs ; (4) that the disregard by the High Courts of the limits of their jurisdiction and usurpation of powers by them had led to uncertainty, public confusion and private misery ; and (5) that the decision of a High Court which he asserted had not been the subject of appeal to the Supreme Court had laid down that no extension of service could be granted and this judgment was entirely incomprehensible. The above assertions of the respondent depict the High Courts in a very poor light and nothing could be more apparently contemptuous than what the respondent had said. It cannot be overlooked that, as shown by me paragraphs 18 to 20 of this order, asser tions made in points marked as (1), (2) and (5) were palpably wrong, and the respondent has not shown that his assertions in points (3) and (4) had any material to support them.

33. In his written statement the respondent said that he had no intention of committing contempt of Court. Whether or not the respondent intentionally scandalized the High Court G in Pakistan is to be deduced from his acts. The respondent gave the Talk in his own language and on his special subject. If the language used by the him is open to exception, he has to be presumed to have intended that it should be open to exception. And if his premises were wrong, it has to be presumed that he intended them to be wrong, or at least did not care whether they were right or wrong. The detailed discussion by me of the Talk of the respondent will have showed that the language of the Talk in so far as it dealt with the High Courts in Pakistan was highly objectionable and that the assertions against the High Courts were unfounded. In this view of the matter the Talk of the respondent would clearly amount to contempt of Court under the law in force in Pakistan. During arguments it was said that even if the provisions of the contempt of Courts Act, 1926, were attracted, punishment could not be visited on the respondent by this Bench for two reasons, one being that if the Talk had scandalized the Judges of the High Courts in Pakistan, it had scandalized the Judges of both the High Courts and not those of the High Courts of West Pakistan alone, and the second that the Judges of the High Court of West Pakistan working at Lahore constituted only one of the three parts of the High Court of West Pakistan, one part being at Karachi and the other at Peshawar. I confess that I did not understand the contention when it was addressed and have not been able to understand it till now. If both the High Courts in Pakistan were maligned, I do not see why one of those two Courts is incompetent to take action. And if one High Court is competent to take action, any of its Judges is competent to take it. Consequently, I would hold that the respondent had been guilty of contempt of Court when he delivered his Talk at Rawalpindi to the Section Officers of the Pakistan Government and repeated that offence when he allowed the printing of his Talk in the form of a pamphlet which was tp‑ be distributed ‑‑to the official in the employ of the Pakistan Government. The finding that the respondent has committed contempt of Court on two occasions r is open to no objection, because the notice that was sent to him l mentioned both of them and the two acts having been done within one year of each other, section 234 of the Code of Criminal Pro cedure permits their consideration together.

34. I will now take up the most difficult of the questions that arose in the case, namely, what punishment should be awarded. In this connection Mr. Mahmood Ali said that the Court should pass no sentence and should content itself with recording a conviction. Though he did not say so, one could see that Mr. Mahmood Ali had adopted that attitude because the fact that the Government of Pakistan having supported the respondent so completely would make it appear that if a sentence is passed it would be commuted by Government. That, however, is a matter which cannot weigh with the Court. The circum stances that are to be kept in view by the Court are :‑ (1) That an institution in which all and sundry should have implicit confidence so that there should not be chaos has been maligned and its authority has been attempted to be under mined by an individual, and an institution cannot be sacrificed for an individual ; (2) that the person who has indulged in the reprehensible act is a high official and as he is the Secretary to the Law Ministry of the Government of Pakistan, what he said about legal matters must have been considered to be true by all those who did not know the correct position ; (3) that the respondent is a foreigner in Pakistan ; and (4) that the respondent has been in the service of Pakistan for about twelve years, The first two of these four circumstances call for the imposition of the maximum sentence prescribed by law for the offence, namely, simple imprisonment for six months and a fine of Rs. 2,000, while the last two call for exercise of leniency. Weighing all the circumstances together, I would sentence the respondent to pay a fine Rs. 2,000, default of payment of which will entail simple imprisonment for one month. I would further direct that the respondent pay as costs of these proceedings the sum of Rs. 2,000 which is to be paid by the provincial Government as fee to Mr. Mahmood Ali, Advocate, out of public money. The respondent is granted time till the 9th of February 1961 to pay the amounts mentioned above. ORTCHESON, J.‑The judgment of my learned brother Shabir Ahmad is so exhaustive that at first sight it seemed that any further comment on my part would be entirely superfluous. On reflection, however, it appeared to me that some useful purpose might be served by bringing the central features of the case into sharper focus than is possible when the field to be illuminated is very wide. I accordingly venture . to make the following observations

2. In the first place, I fully agree with Mr. Mahmood Ali that in considering the question of whether the remarks to which j this Court has taken serious .exception constitute contempt, the address in which they are contained must be read as a whole. Clearly, if the remarks in question form an integral part of the respondent's Talk, so that their excision would destroy the chain of thought, they will be easier to justify than if they are extraneous and irrelevant.

3. In my opinion the result of the application of the salutary principle above referred to is far from favourable to the respon dent. In paragraph 14 of the pamphlet he remarks‑ "I am going, with your permission, to skip EBLO as it is called : the Elective Bodies (Disqualification) Order, 1959, and the Basic Democracies Order, 1959 : both are constitutional in operation, and that is why we put them out as Orders and not Ordinances, but their provisions or at least their general import must be very well known to all of you and I am devoting this afternoon to putting before you the essential structure of the State, that structure without which it would fall to pieces." The point that clearly emerges from the above passage is that in general the respondent only intended to deal with orders of the greatest constitutional importance. Not only does he omit any discussion of the Orders mentioned, EBDO and the Basic Democracies Order, 1959, but in paragraph 12 he further remarks‑ "We need not detain ourselves over the other Orders made in the earlier part of 1959, important though they are each in its particular sphere." The question, therefore, immediately arises of why the writ jurisdiction of the High Courts and the view taken by this Court as to whether Government has the power to grant extensions of service to its officers have been singled out, not only for mention, but even for fairly detailed discussion. However flattering such a thought might be to the ego of the High Courts, there is no reason to suppose that in the opinion of the respondent the curtailment or even the total abolition of their power to issue writs would cause the structure of the State to fall to pieces. On the contrary, there are grounds for suspecting that the respondent could face such a prospect with complete equanimity. Similarly, it is hard to believe that this Court's view of the power to grant extensions of service is a matter of grave constitutional importance.

4. The answer to the question raised in the previous paragraph is not far to seek. The respondent makes no secret of the fact that his object in including paragraphs 9 and 10 in his address was to illustrate the results that inevitably follow when any "organ of the Government" oversteps the boundaries of its legitimate jurisdiction. . What those results are may again best be stated in the respondent's own words. He says :‑ "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." The High Courts have thus been held up to the respondent's Ordinance and readers as a glaring example of the evils to which he refers. He does not, however, leave the matter on a general basis, and in the earlier portion of paragraph 9 of the pamphlet he narrows his accusation down to one particular point. He first states that between 1956 and 1958 the High Courts used the language of the 1956 Constitution to claim jurisdiction to issue writs against the Government itself. If this phrase had stood alone, I would have been inclined to take it as being merely a somewhat unfortunate manner of expressing the thought that the High Courts placed a particular interpretation on the Constitution, but read in conjunction with what follows, it is difficult to avoid the inference that the respondent is accusing the High Courts of deliberately twisting the language of Article 170 of the abrogated Constitution to suit their own ends.

5. The respondent goes on to assert that the view taken by the High Courts that writs can issue against Government is contrary to centuries of decisions by the Courts in England, which decisions (or at least the principles laid down therein) have been followed in the United States. Next, he claims that the Law Ministry, at considerable public expense, filed a large number of appeals to the Supreme Court to have the position properly established, and was successful in all except one.

6. The next piece of information imparted by the respondent to his audience and readers is that in order to put the situation right without having to spend more money on more appeals a clause was inserted in the Laws (Continuance in Force) Order, 1958, taking away the power of the High Courts to issue orders and directions and confining their jurisdiction to the issue of the so‑called prerogative writs. The object of the introduction of the above clause is described by the respondent as being "to indicate, as politely as possible, that writ was a writ, confined to known limits, and the limits could not be exceeded". His next remark is even less complimentary namely, "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 bad the effect of indicating that after all there are limits and that the limits must be observed".

7. The above analysis of paragraph 9 of the respondent's address makes it abundantly clear that he was treading on very dangerous ground. The impression that must have been created in the minds of his bearers and readers is 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 further 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.

8. Since the respondent has placed himself in such a posi tion, it appears to me that the only possible defence he can put forward is that the remarks in dispute amounted to no more than legitimate criticise, but this defence is in the circumstances. Not available to him. In the first place, as pointed out by their Lordships of the Privy Council in Andre Paul v. Attorney General (AIR 1936P C 141), one essential condition of such a defence is that the person concerned must abstain from imputing improper motives to those taking part in the administration of justice, but in the present case the respondent has clearly implied that the High Courts acted contumaciously and usurped jurisdiction. Secondly, as laid down in the Australian case, The King v. Fletcher and another (52 Comm L R 1934-35 p.248) if a person charged with contempt seeks to take shelter behind the defence of legitimate criticism, the facts forming the basis of the criticism must be accurately stated, and the criticism must be fair. In the case now before us this condition has also not been fulfilled, the respondent's remarks containing at least one serious inaccuracy, namely, the statement that out of a large number of appeals filed in the Supreme Court to establish the position that no writ could issue against Government under the 1956 Constitution, all but one were successful. When questioned in this Court on the 14th of November 1960 as to whether the Supreme Court has in any case laid down that a writ, direction or order could not issue to a Government, Provincial or Central, under the abrogated Constitution, the respondent was obliged to admit that he could not name any such case, nor was he aware of any. This in itself would be bad enough from the respondent's point of view, but the matter does not end there. He was further compelled to concede that in the case known as the Police officers' case (W. P. 443 of 1957) the contention that no writ could issue against Government was repelled by the Supreme Court. It is interesting to note that the case in question is also referred to in an affidavit filed by Mr. Muhammad Gul, Solicitor to the Government of Pakistan. To that affidavit are appended a number of annexures intended to prove that the Law Ministry has been uniformly expressing the view that no writ can be issued against Government, particularly, in service matters. The police officers' case is dealt with in annexure 3' and the following note, which forms a part of suggested grounds of appeal in Writ Petition No. 346 of 1958, Ali Hyder v. Pakistan, is illuminating :‑ "It is true that the High Court of West Pakistan has, in exercise of its jurisdiction, determined the seniorities of Govern ment servants in a number of cases, but this Ministry has consistently maintained the view that seniorities cases are excluded from writ jurisdiction. The point was raised before the Supreme Court in Bashir Ahmad Khan v. Mahmood Ali Khan Chowdhury C. A. No. 95‑97/1958 which related to the seniority of certain P. S. P. officers. In that appeal the Supreme Court armed the view of the High Court and repelled the plea of want of jurisdiction urged on behalf of the Government. "The question of jurisdiction has further been considered in this Ministry, and if I may say so with respect, the arguments in favour of exclusion of seniorities of Government servants, from the writ jurisdiction of the High Courts are formidable. Therefore, in my opinion the present appeal would be a fit case in which the Supreme Court should be invited to reconsider its views on the question of jurisdiction particularly in view of its own judgment in Tarag Transport case (P L D 1958 S C (Pak.) 437) and also the observations of the learned Chief Justice in Nurul Hasan's case (P L D 1956 S C (Pak) 331)." The above note clearly admits that the view taken by the High Courts on the question of whether, under the 1956 Constitution, writs, could issue to Government even in service matters is shared by the Supreme Court of Pakistan. If, therefore, this Court has erred, it is erring in good company, and the fact that the Law Ministry seriously contemplated asking the Supreme Court of Pakistan to reverse its own decision throws a flood of light on its attitude in the matter. 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 appropriate emotion. Be that as it may, the above discussion clearly establishes that the respondent had no justifica tion for accusing the High Courts of inefficiency or contumacy in taking the view that writs can issue against Government.

9. The respondent was further highly unfair to the High Courts in equating the position under Article 170 of the abrogated Constitution with that of the law of England. As pointed out by Mr. Mahood Ali, whereas writs in England first originated by delegation from the sovereign, in Pakistan the right to issue them was conferred by statute, and there is a world of difference between these two sources. Article 170 of the abrogated Constitu tion states in the most unambiguous terms that notwithstanding anything in Article 22 the High Court shall have power, through out 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. In face of the words underlined, I confess I find it incomprehensible how it can be argued that no writ could issue to Government under the 1956 Constitution.

10. There remains the respondent's allegation that the Supreme Court passed some very severe observations against the High Courts. The clear implication is that the observations in question related to the view taken by the High Courts that writs could issue against Government, but neither Mr. A. Haque nor Mr. Ghias Muhammad was able to give any example. Whatever severe observations may have been made relate to other matters, and are consequently irrelevant to the point under discussion.

11. To sum up in respect of paragraph 9 of the pamphlet, the respondent's references to the High Courts were, in addition to being couched in offensive language, highly inaccurate and clearly amount to contempt of Court.

12. In respect of paragraph 10 of the pamphlet, the respondents position is not happier. After informing his hearers and readers that on of the additions to Article 6 of the law judgments, as the case was heard by a Division Bench and each of the Judges made his own remarks) is reported as Mr. A. R. Azar v. Federation of Pakistan (PLD 1958 Lah 185). The point at issue was whether an extension of service could be granted to a Class I officer of the Pakistan Railway Services, who was due to retire on the 30th of November 1956, but was granted an exten sion of service for a period of one year with effect from the date of his compulsory retirement. The extension was challenged by four other officers, whose own position was jeopardised thereby, on the ground that in accordance with Rule 56 of the Fundamental Rules Class I Officers must retire compulsorily on reaching the age of fifty‑five and, except in the case of those holding the post of Chief Engineer, who can be granted extension of service for a period not exceeding three months, no such officer can be retained in service after he has attained the age of fifty‑five years. After holding that the language of Rule 56 was unambiguous, Masud Ahmad, J. went on to remark :‑ "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 fifty‑five years; secondly, that the provisions of this rule have been modified by the Cabinet Secretariat's letter dated the 10th 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." The above contentions of the learned Additional Advocate‑General were rejected, it being held that the "pleasure" of the President or the Governor had never previously been invoked for granting extension of service to any person in violation of the relevant rules, though it had sometimes been utilised to terminate the services of civil servants prematurely. It was further held that the mandatory provisions of Rule 56 of the Fundamental Rules could not be modified by instructions contained in a Cabinet Secretariat letter. 'I he contention that as the President agreed to grant an extension of service to the officer in question, Rule 56 should be deemed to have been waived was also considered to be unsound.

13. My reason for giving the above details in connection with the judgment under discussion is to show that although the grounds advanced for accepting the writ petition may be held to be wrong, they cannot fairly be described as incomprehensible. Being no doubt conscious of this, the respondent stated before us :‑ "My use of the words 'we have not been able to understand the judgment' meant that in the opinion of the Law Ministry the judgment did not lay down, correct law." The only comment I can make is that if this was the respondent's meaning, the language used falls so far short of the standard of clarity and precision usually associated with an expert draftsman, that I would have expected the respondent to feel a certain sympathy for the unfortunate Judges who had, in his opinion, so lamentably failed to make their meaning clear in the case in dispute.

14. There is, however, another aspect of this matter. It must be almost, if not entirely, without precedent for a Law Ministry to be so contemptuous of a judgment of the High Court as to take it for granted that in spite of the said judgment the power denied by the Judges nevertheless existed and, when framing fresh legislation, formally to assert its existence in an "Explanation." It is difficult to imagine any procedure showing greater contempt for the High Court than this.

15. It is also most unfortunate for the respondent that his assertion that no appeal was filed in the Supreme Court against the decision in question should be again incorrect. As my learned brother points out, Civil Petition for Leave to Appeal No. 7 of 1957 was presented to the Supreme Court and dismissed on the 7th of March 1958. This unpalatable fact renders the tone of the respondent's reference to the judgment under consideration even more impossible to justify. In short, paragraph 10 of the pamphlet also constitutes contempt of Court, and contempt of a serious kind.

16. The other questions arising in this case have been fully dealt with by my learned brother, and I have nothing to add to his remarks. The only other comment I wish to make is that the sentiment uppermost in my mind is one of profound regret that these proceedings should have proved necessary. Unless feelings of mutual respect prevail between the executive and judicial authorities, the result cannot but be prejudicial to the best interest of the State, and that a High Court should be compelled to take action for contempt against the Law Secretary to the Government of Pakistan cannot from any point of view be regarded as other than highly unfortunate. As explained by my learned brother, however, the Judges of this Court felt that they had no option but to take that course.

17. On the question of the quantum of punishment and the payment of costs I agree with the proposal of my learned brother. YAQUB ALI, J.‑On the 10th of October 1960, the Services and General Administration Department of West Pakistan sent to the Registrar of this Court a copy of the pamphlet entitled "The Transitional Constitution of 1958", comprising the text of a talk given by Sir Edward Snelson, Secretary, Ministry of law, Government of Pakistan (respondent), to Section Officers on the 15th of February 1960 at Rawalpindi. There was no indication in the letter of the Services and General Administration Department or of the Director of Training, President's Secretariat, Secretariat Training Institute, who had sent twenty‑five copies of pamphlet to the West Pakistan Government for circulation, that, its subject‑matter was secret or confidential. The copy exhibited its these proceedings is marked "for official use only". It meant that the pamphlet was for use of Government officials only and not to be marketed. A copy of Displaced Persons (Compensation and Rehabilitation) Act, 1958, was brought to our notice which bears a similar inscription. Indeed, there are many other Government publications which, without being secret or con fidential, are marked "for official use only".

2. In the third week of October the pamphlet was put in circulation to the Judges and on reading it many of us came to the conclusion that paragraphs 9 and 10 ex facie amounted to contempt of this Court. Since the author of the talk was none other than the Secretary, Ministry of Law, Government of Pakistan, which aggravated the situation, the matter was discussed in an informal meeting of the Judges and it was unanimously decided that the matter called for an inquiry and appropriate action if the respondent was found guilty. Under these cir cumstances, Shabir Ahmad, J., on the 25th of October 1960, issued a notice to the respondent to show cause why he should not be punished for contempt inasmuch as paragraphs 9 and 10 of his talk to the section Officers and its publication was calculated to lower this Court in the eyes of all those when heard the talk or read the pamphlet and to undermine the authority of this Court. He was also required to appear in person as it was likely that he may be questioned about certain matters.

3. On a subsequent date the Government of Pakistan, through its Attorney‑General, Chaudhri Nazir Ahmad Khan, applied to be impleaded as a party to the proceedings and though it looked odd that the "State" in whose name the notice was issued to the respondent wanted to make a common cause with him, the prayer was granted. The anomaly was obvious that ever N if the respondent was found guilty of defaming this Court, lowering its prestige, undermining its authority, holding it out in contempt and scandalizing it in and outside the country, the Government which by Article 2 (2) of the Laws (Continuance in Force) Order (I of 1958) had provided for continuing in being of this Court in its powers and jurisdiction, including the jurisdiction to punish anyone found guilty of its contempt was desirous of' defending the respondent.

4. In consequence of this the Provincial Government found itself in a quandary and its Advocate‑General expressed his inability to assist this Court though by long‑established practice . and as an Advocate of this Court it was clearly his duty to do so. Notice of these proceedings was issued to him simultaneously with the respondent on the 25th of October 1960. On the 14th of November 1960, when the Advocate‑General appeared before us he asked for an adjournment to enable the Provincial Govern ment to decide on which side to throw its weight. We could see that the Provincial Government had been put in an embarrassing situation and in order not to aggravate it, we allowed its Advocate‑General to withdraw from these proceedings. The respondent was represented by Sheikh Abdul Haque and the Central Government by its Attorney‑General and Sheikh Ghias Muhammad, who claimed the right to address us separately in a capacity which we could not understand. Though we failed to see how the Ministry of Law thought it proper to engage more than one lawyer to address us on behalf of the same party, nevertheless we allowed all the three counsel to address us on behalf of the respondent and nominated Mr. Mahmood Ali Qasuri as amicus curiae to assist us in the matter before us.

5. On the 14th of November 1960, the respondent appeared in person and filed a written statement denying that he had committed contempt of this Court. In sub‑para. (i) of para. l of the written statement the circumstances in which the talk was given are set out so that "the matter may be viewed in its proper perspective." This is followed by a description of the manner in which the talk happened to be published by the Establishment Division subject to the restriction imposed by the respondent that printed copies shall not go outside the Government circles. Sub‑para. (ii) describes the paragraphs 9 and 10 of the talk as "explanatory of the change in the wording of clause (4) of Article 2 of the Laws (Continuance in force) Order, 1958, in juxtaposition .to the corresponding provisions of the late Constitution and to the latest amendment in Article 6 and the reasons which necessitated these changes." The object with which the talk was given is summed up in sub‑para. (iii) as to the "impressing upon the audience the importance of keeping within their respective spheres." Sub‑para. (iv) embodies the observation of the judiciary in Andre Paul Terenee Ambard v. The Attorney General of Trinidad and Tobago (A I R 1936 P C 141) that in a progressive society legitimate criticism of official Acts, including judgments of Courts of Justice always treated with consideration and favour and that Justice is not a cloistered virtue. The written statement concludes with the observation that the remarks in the paragraphs to which exception was taken "were made entirely in good faith and in public interest in discharge of the respondent's official duty." Properly analysed, the defence taken up, the respondent was thus one of justification and qualified privilege.

6. The Attorney‑General filed a separate written statement consisting of only two paragraphs in which no definite position is adopted as to whether the respondent was guilty of contempt or not. The, gist of the written statement is that the talk given p by the respondent was 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. It could not be maintained seriously that Government Officials to whom two thousand copies of the pamphlet were to be circulated throughout the length and breadth of the country and in Embassies and High Commissioners abroad did not constitute in themselves a very important sector of public whose duty it is to aid, assist and carry out the decrees, orders, injunction and writs issued by this Court. Assuming, therefore, that paragraphs 9 and 10‑ of the respondent's talk were calculated to lower and undermine the authority of this Court, could it be maintained that because the Government Officials, to whom the talk was given or who read the pamphlet, could not communicate its contents to others, no contempt of this Court was committed. Surely, must credit the Attorney‑General of Pakistan with knowledge of the correct legal proposition in the matter. What then was the relevance of the Official Secrets Act to the defence set up by the Attorney‑General? Was it dragged in as a veiled threat to this Court for publication of the contents of para graphs 9 and 10 of the talk as an annexure of the notice of contempt? We understand that a similar position was taken up in the application for special leave to appeal moved in Supreme Court before the respondent filed his written statements in this Court. If this was the intention, .in all humility we were left undeterred and in vain did we ask the Attorney‑General more than once to name the person under whose instructions the written statement was drafted for this 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 civilised society rests. He took us into confidence to this extent only that in ordinary circumstances the Attorney General is briefed by the Solicitor to the Government of Pakistan and that this course was not followed in the present instance. He promised to obtain instructions from the Ministry of Law as to whether he could disclose the particulars of the person who had instructed him in the case, but apparently the permission was refused and he did not answer our query. Under these circum stances, it is unnecessary to dwell any more on this unfortunate aspect of the case.

7. A stage has been reached where we should proceed to examine the contents of paragraphs 9 and 10 of the respondent's talk to determine whether he has been guilty of contempt. The paragraphs read‑ "

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 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 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 Court 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, 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 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 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 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 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."

8. Before analysing the two paragraphs, let us recall the object of the talk given by the respondent to the Section Officers working in the various Ministries of the Government of Pakistan at Rawalpindi. Although to strengthen his defence, the res pondent described his audience as key‑officers, the fact remains that in the hierarchy of officers they have replaced the former Superintendents and Assistant Secretaries and do not deal with constitutional matters or with the scope of writ jurisdiction of this Court. But whatever be their position and the propriety of the occasion to have addressed them on this subject we have further to take into consideration. the publication the talk in the form of a pamphlet and distribution of its copies among all rank of Government Officials. The position taken up by the res pondent in the written statement is that he wanted to explain and impress on the minds of the Section Officers the necessity for each department of the Government to act within the sphere of its own authority. 1n this context a reference to the exercise of writ jurisdiction by the High Courts was, therefore, no more than an illustration of one of the departments of the Government exceeding the limits of its power and authority. Later on the respondent tried to shift his position and Sheikh Abdul Haque pleaded that the purpose and purport of paragraphs 9 and 10 was to educate the listeners not to invoke the jurisdiction of the High Courts in service matters as under law no writ could issue to the Government to remedy their grievances. An affidavit Was also filed by the respondent in support of the plea that the sentence in the 9th paragraph of the talk, which reads: "The Law Ministry has had to appeal a large number of times to the Supreme Court and has succeeded in every appeal but one," refers to appeals concerning service matters. It comes to saying that all appeals except one, taken by the Central Government to the Supreme Court from the judgments of the High Courts were allowed on the ground that we had no jurisdiction to issue writs in service matters. It further complicated the . matter for the respondent, because the plea amounted to a direct interference and obstruction in the exercise of jurisdiction of this Court by the Ministry of Law. I am however, inclined to accept the position taken by the respondent in his written statement and to ignore the improvements made during the hearing of this matter.

9. Keeping in view the text of the respondent's talk as a whole and the purpose with which it was given, let us now analyse the contents of paragraphs 9 and

10. In paragraph 8 the res pondent explained to his audience the effect of abrogation of the x 1956 Constitution on the existing laws and the promulgation of x the Laws (Continuance in Force) Order, 1958, and to keep the existing laws in force as well as of the power conferred on the President to adapt it. In continuation, he takes up the subject of writs in paragraph 9 and the whole theme which runs through it and the succeeding paragraph is descriptive of the abuse of power by the High Courts interfering with the Government in exercise of their writ jurisdiction. The first sentence of para graph 9 is introductory and followed by the statement that between 1956 and 1958 the High Court used the language of 1956 Constitution‑‑with its reference to its 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. The words "to claim" and "to interfere with" are susceptible of no other meaning than that the High Courts not by error of judgment but designedly abused the language of Article 170 of the 1956 Constitution to arrogate to themselves the power of interfering with the Govern ment. Then follows the statement which on the face of it is erroneous and calculated to mislead the audience, namely, that under Article 170 no writ could issue to the Govern ment. The theory of delegation of powers propounded by the respondent in the talk, if correct, would mean that since the Government had by promulgating Laws (Continuance in Force) Order provided continued existence of all laws, none of them can be applied to or against it. If the reasoning be correct, then the Government could not be sued on the basis of a contract or for its liability in tort. The jurisdiction to issue writs was conferred on the High Courts by the Constituent Assembly and not by a sovereign for there was none in the State. The sovereignty, if any, vested in people in whose name the Constitu ent Assembly held office one can understand the argument that since the law of writs was borrowed by the Constituent Assembly from England, it had the intention to impose same limitation on the jurisdiction of the High Courts under Article 170 as obtained in England, but the words "orders", "directions" "in the nature of" and "to any person or authority including inappropriate cases any Government" had to be given their due meaning, and the respondent could not deny that the Supreme Court of Pakistan as well as of India have construed them as conferring much wider jurisdiction on the High Courts of Pakistan and India than the jurisdiction exercised by superior Courts of England. The statement that no writ could at all issue to the Government was, therefore, erroneous on the face of it.

10. As mentioned above, an attempt was made during the hearing of this matter to improve the written statement by adding that no writ lay to the Government in service matters and an affidavit was also filed to that effect, but the following sentences in paragraph 9 do not permit this departure:‑ "A Court can issue a writ only because the sovereign function .is to the 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." The words "the position" mean the statement that no writ could issue to the Government without any qualifications. Learned counsel for the respondent, Sheikh Abdul Haque, admitted that this was an inaccurate statement, for in no case has the Supreme Court reversed the decisions of the High Courts on the ground that no writ at all could be issued against the Government.

11. After making the above incorrect statement, the respondent proceeds to point out the evil effects of the abuse of the writ jurisdiction by the High Courts, namely loss to the public exchequer and the remedy which the Government had to adopt to meet the situation by making a provision for issuance of named writs only. This is followed by these two sentences‑ (i) "This was to indicate, as politely as possible, that the writ was a writ confined to known limits and the limits could not be exceeded." (ii), "I have to confess that even with this civility we have not entirely succeeded even yet, but this clause on 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." These sentences contain more than one statement. Firstly, the civil method (as apposed to possible savage operation) adopted by the Ministry of Law to teach the Judges the simple lesson that writs could be issued within their limits failed to achieve its object; secondly, that Judges of the High Courts instead of Appreciating the kindness shown to them did not refrain from exceeding the limits of their jurisdiction; thirdly, that for this abuse of jurisdiction the Supreme Court made severe observations against the High Courts; and forthly, that in spite of the use of both civil and harsh methods, the High Courts had not altogether refrained from abusing their writ jurisdiction. The word "politeness" means two things: One dropping of the words orders, directions, in the nature of, and to any person or authority including in appropriate cases any Government from Article 4 of the Laws (Continuance in Force) Order which replaced Article 170 of the 1956 Constitution so that the Judges may learn that "a writ is a writ". Perhaps the respondent would have shown more poetic sense by quoting Byron from "what is writ is a writ" than by attributing to the Judges of the High Courts in the two wings of Pakistan such scanty knowledge of English language. The second act of politeness indicated is the addition made to Article 6 of the Laws (Continuance in Force) Order to overcome the effect of a judgment of this Court to be mentioned presently. The primary object of the respondent, therefore was not to explain merely the change made in writ jurisdiction of the High Courts under ;the Transitional Constitu tion, but to point out and emphasise the abuse of this jurisdiction in the past which, he confesses, was to some extent, still in vogue.

12. The conclusion which the respondent draws from the above statement is contained in the following sentences:‑ "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." For the first time, the respondent has made use of innuendoes and oblique references in his talk. In plain' language, what he meant was that the High Courts by interfering with the Government caused disarray and chaos resulting in public confusion and private misery.

13. The next paragraph, for the first ..time, refers to the interest of services as affected by the Laws (Continuance in Force) Order. A point is made that whereas this Court decided against the officers laying down that Government could not grant them extensions, the addition to Article 6 was made to overcome the effect of that judgment which the respondent was never able to understand, meaning thereby that it was not only mistaken but unintelligible. The statement is concluded by the assertion that notwithstanding the judgment of this court the respondent took it for granted that the Government could give extensions to its employees. The judgment in reference was, therefore of no consequence to the respondent, because he considered himself entitled to sit in judgment on it. This attitude of mind of the respondent fits in with the whole tenor of paragraphs 9 and 10 of the talk, viz., of a person in authority speaking about tale misconduct of his subordinates and inferiors.

14. The above analysis of paragraphs 9 and 10 shows what deep‑rooted contempt the respondent has for High Courts of this 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 confusion 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 Pakistan? 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. It is one thing to comment upon the efficiency and conduct of a Judge if called upon by the Minister or the President, and another to come out with gratuitous libel by making use of the occasion to explain the constitutional changes of 1958.

15. As mentioned earlier, the respondent while denying that he was guilty of contempt raised twofold pleas: (1) that paragraphs 9 and 10 of the speech amounted to legitimate criticism of the exercise of writ jurisdiction by the High Courts; and (2) that in giving the talk he performed an official duty and as such was immune from being tried for contempt assuming that he was guilty of it. The Attorney‑General added that in trying contempt matters Judges should not be sensitive, and Mr. Ghias Muhammad wished to refer to certain speeches published in the press to bring home to us that besides the respondent there were others who had exercised the privilege of vilifying the Courts. A large number of authorities were also cited from the Bar, including some of American Judges, in support of the pleas enumerated above, but as they have been dealt with at length by my learned brothers, Shabir Ahmed and Ortcheson, JJ. I would refrain from burdening this order with a repetition of their exposition.

16. The first plea raised by the respondent is based on the' principle of fair comment and its application depends on the facts of each case. Needless to emphasise, fair comments must be' based on accurate facts. But in the present case the very premises on which the indictment of the High Courts proceeds is per se erroneous. According to the respondent, no writ could at all Q issue against Government and the proposition was said to have been approved by the Supreme Court in all cases except one in which the Government filed appeals. Inquiries made by us, from the respondent revealed that so for as this Court is concerned, the objection that no writ could lie against the Government was raised in only one appeal and rejected by the Supreme Court. Mr. Mahmood Ali Qasuri drew our attention to two cases in which this Court had declined to issue writs, but on appeal the Supreme Court had reversed the judgments and directed the issuance of appropriate writs against the Government. When confronted with this position the respondent attempted to make out that in all appeals instituted by the Ministry of Law in the Supreme Court, instructions were given to the lawyers to raise this objection, but he did not know why the counsel had failed to carry out this mandate. We were not impressed by the statement and nothing more need be said about it. As to the qualification introduced during the course of the hearing that no writ lay in service matters, the position taken up by the respondent was again erroneous in fact and law. The theory of fair comment and legitimate criticism of all official Acts, including judgments of Courts, laid down by their Lordships of the Judicial Committee in Andre Paul Terenee Ambard v. The Attorney‑General of Trinidad and Tobago is, therefore, wholly inapplicable to the talk given by the respondent. Before proceeding to examine the next plea, it may be mentioned that counsel for the respondent brought to our notice some judgments of the Supreme Court to substantiate the statement of the respondent that severe observations were made by that Court against this Court for exceeding its limits in R writ jurisdiction, but it is unnecessary to quote those observations, R for it is wrong to maintain that what can be said by a superior Court while dealing with a judgment brought before it in appeal can be reiterated or utilised by any person for vilifying the Court from whose judgment the appeal was preferred.

17. The second plea viz., of qualified privilege has also no basis. The talk delivered by the respondent was not in perfor mance of his official duties for it is no part of the job of the Secretary, Ministry of haw, to impart legal knowledge to Section Officers in the various Ministries of the Government of Pakistan. No doubt, he was invited to give the talk as Secretary, Ministry of Law, but if he declined to oblige his audience, no one could have accused him of failure to perform an official duty. We, as Judges, are sometimes invited to address legal seminars and our suitability is determined by the office which we hold, but it does not mean that in delivering a speech on a legal subject we are performing an official duty. It is also to be borne in mind that the respondent agreed to the publication of the talk and two thousand copies of it were published for circulation to all the departments of Central and Provincial Governments as well as to be sent abroad. Moreover, the text of the two paragraphs reproduced and analysed above clearly makes out that the respondent simply took advantage of the occasion to reflect on the judgments of this Court and to bring it into contempt before the audience. In view of this without expressing any considered opinion as to the soundness of the principle on which reliance is placed in support of this plea the respondent cannot legiti mately invoke it in his defence.

18. The plea raised by the Attorney‑General that we should not be sensitive in trying the respondent is based on the assump tion that we are acting as Judges in our own cause. There are a number of authorities in which this rule has been referred to, but speaking for myself it did not, in the least degree, hurt my personal vanity that the respondent said something derogatory about the Court of which I am a member. But the law of contempt has, to my mind, two broad aspects: (i) The necessity of maintaining implicit faith of the citizens in the dignity, efficiency and uprightness of the presiding officers of Courts so that the decrees, orders and injunctions passed by them are looked upon with respect and command willingness to carry them out. (ii) To protect the person of the presiding officers from U being intimidated, vilified and abused while determining causes so that fear may not enter their minds and undermine their will to administer justice without fear and favour. It is for these reasons that many eminent Judges of the High Court of England and members of the House of Lords have expressed a grave concern in this matter and observed that they will be failing in their duty to the Court presided over by them T if they omit to take suitable action against one who committed r any form of contempt towards it. Such an action is taken as a public duty as observed by Lord Chancellor CoHenham in Lechmere Charlton's case (Mylne & Craig's Reports, Vol. II, p. 316). "When I felt it my duty to issue the order for the commit ment of Mr. Charlton, in November last, I said, what I am sure those who know me will give me credit for, that nothing but a sense of public duty induced me to issue that order. Nothing which had taken place before that time, or which has passed since, could possibly influence my feelings with regard to the most important duty which I had to perform."

19. Another way of looking at this proposition is that the prestige and authority of a Court are not the personal attributes of its Presiding Officers. They are necessary elements of its constitution, the underlying principle being that there should be complete willingness in the minds of the litigants to abide by and carry out its decrees and orders. If anything is done or said which is likely to weaken that will, it amounts to obstruction in the exercise of its jurisdiction and constitutes contempt of Court. If paragraphs 9 and 10 of the respondent's talk are calculated to achieve such a result, it would have amounted to an unforgiv able omission in the performance of our duty to this Court if the respondent was not brought before us and punished for committing its contempt. The question of our being sensitive, in judging our own cause, therefore, does not properly arise in the case.

20. Some American authorities were cited by the learned Attorney‑General and Mr. Abdul Haque to illustrate that although Presiding Officers of some Courts in the U. S. A were severely vilified no action was taken for contempt against the accused because the causes in relation to which these remarks were made had already been decided and the comments were not y calculated to obstruct the administration of justice. That, of course, is the law of the United States of America, but not of Pakistan or of England from which we have borrowed it. These authorities, therefore, had no bearing on the matter before us.

21. In the result I find that the words used by the respondent in paragraphs 9 and 10 of the talk delivered by him to Section Officers on the 15th of February 1960, at Rawalpindi were calculated to lower this Court in the eyes of all those who heard the talk and read the pamphlet and undermine its authority. As such he has been guilty of contempt of this Court and I agree with the sentence proposed to be awarded to him for it by my learned brother, Shabir Ahmad, J. and the order of payment of costs. A. H. Respondent sentenced.