P L D 1953 Federal Court 247 (PLP)

ABDUL RASHID, C. I., SHAHABUDDIN AND CORNELIUS, JJ: This is an appeal by special leave brought by Mr. S. M. Haq, and advocate, enrolled as such in this Court as well as in the High Court of Judicature at Lahore, against an order made by the Lahore High Court, suspending him from practice as an advocate of that Court for a period of three months, in exercise of the powers vesting in that Court under clause 8 of its Letters Patent, which empowers it "to remove or to suspend from practice, on reasonable cause" its own advocates. This section has been taken against Mr. S. M. Haq on the basis that acting as senior counsel for the appellants in an appeal before this Court against a judgment of the Lahore High Court, he included in the written grounds of appeal to this Court, two grounds which in the opinion of the learned Judges of the Lahore High Court consti tuted contempt of that Court. The order was made after Mr. S. M. Haq had expressed to the Judges of the Lahore High Court his deep regret for the use of any disrespectful language and had tendered an unqualified apology, declaring that it was not his intention either to use or to permit the use of any disrespectful language. The appeal raises intricate questions of grave general importance, affecting the capacity of the advocates of this Court to render assistance to it, for the due administration of the law and, by a necessary consequence the powers of this Court, under section 209 of the Constitution Act "for doing complete justice" in cases coming before it. It involves consideration also of the duty owed to a High Court by its own advocates. The principal grounds advanced in the petition for special leave to appeal ace those of privilege, justification, absence of jurisdiction in the High Court, and absence of "reasonable cause", sufficient to justify the penal action taken by the high Court. The reply to these contentions has come from counsel instructed by the Punjab Government, and has added but little to the grounds on which the order of the Lahore High Court pro ceeds. Stress is laid on the existence of jurisdiction unimpaired by any statutory provision, expressed or necessarily implied, and that the jurisdiction conveys power to decide all‑questions arising in a matter calling for its exercise. The jurisdiction of the Federal Court in respect of an advocate conducting a proceeding in this Court, who is also an advocate of the Lahore High Court, is said to be concurrent and co‑extensive with that of the Lahore High Court. It was described as a matter of practical conveni ence for the High Court to exercise the jurisdiction, even if the fault be in relation to a proceeding in the Federal Court by reason of the existence of an appeal to this Court. As regards the claim of privilege, it was said that only qualified privilege, limited within the terms of section 499, P. P. C. could be claimed, and where the fault alleged was that of contempt of a High Court even such a modified claim was untenable, as the lawyer could not be regarded as having acted in that capacity in relation to the contempt. (On this view, the provisions of the Letters Patent have been misapplied, and the correct course was to attach for contempt). An elaborate reply was advanced to these arguments, founded on firstly, the exclusive jurisdiction of the Federal Court to decide all claims of privilege by a counsel, in respect of his acts perform ed in the course of a legal proceeding in this Court, and secondly the impossibility of any such act constituting a contempt of any Court except the Court in which it is performed, so that the grounds in question could, at the worst, amount to defamation of the High Court, to which also, the plea of privilege could be raised as a defence. In the remarkable circumstances of the present case, these arguments carry with them a sense of unreality, which is probably most acutely felt by Mr. S. M. Haq himself. In the light of his present predicament, the facts indeed wear an appearance of strangeness. For it is undeniable that his efforts on behalf of the convicts, Fazal Elahi and others (P L D 1953 F C 35), in the Federal Court met with a large measure of success, resting to an appreciable extent on acceptance of the substance of the very grounds of appeal in respect of which he has now been found guilty of contempt by the Court whose judgment was varied. There is no suggestion of malice, but on the contrary every indication exists that he acted bona fide and exclusively in the interests of his clients. He can indeed claim that he has performed the duty of a counsel as stated by Brett, M. R. in the celebrated case of Munster v. Lamb ((1883) 11 Q B D 588 at 604) in the following words :‑ "What he has to do, is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client." For the purposes of an appeal such as that of Fazal Elahi and others (supra) before this Court, an appropriate definition of a proper ground of appeal may be the following :‑ "a short and precise statement, expressed so as to convey the fundamental flaw in a course of reasoning adopted in the judgment under appeal." The objective being to destroy the substratum upon which a particular finding is based, it is natural to find a properly expressed ground to be composed mainly of criticism of the view taken by the High Court. The demands of brevity, and the inevitable an xiety of a conscientious counsel, tend towards a high degree of concentration and tendentiousness in the expression of such criticism. These results are entirely natural. They are to be related exclusively to the duty owed by the counsel to his clients as well as his primary function of advancing the interests of justice. It is always a matter of some difficulty, and in a complicated case like that the Fazal Elahi and others (supra) it may well have been a matter of extreme difficulty, to choose the appropriate words and the appropriate mode of their employment for convey ing the criticism which the counsel thought to be necessary as a part of his duty. A true appreciation of Mr. S. M. Haq's effort cannot be gained without examination of the salient facts of the case of Fazal Elahi and others (supra), the passages In the High Court judgment which it became necessary for Mr. S. M. Haq to criticise, and the mode of criticism which he adopted. Such a procedure will be in accordance with the rule that justice must not only be done, but must also be seen to be done, which applies with as much force to such investigations as it does to ordinary judicial trials. Har Parshad Singh V. Judges, Allahabad High Court (58 I A 152). We are satisfied that Mr. S. M. Haq's professional conduct cannot be judged out of its context, so to speak, without infringing the salutary precept issued by the Judicial Committee in case of "A, a Pleader v. Judges, Madras High Court" (A I R 1930 P C 144) in the following words :‑ "in their Lordships' opinion, charges of professional miscon duct must be clearly proved and should not be inferred from mere ground for suspicion, however, reasonable, or what may be mere error of judgment or indiscretion." The crime charged against Fazal Elahi and his five co‑accused was that of causing the death of one Abdul Aziz and of causing hurt to two persons Fazal Dad and Muhammad Khan in further ance of the common object of an unlawful assembly. The High Court held that the common object of the assembly was not to cause death but to cause grievous hurt. The trial Court's judg ment was accordingly reversed in relation to four of the accused persons, whose convictions were altered to section 325/149, P. P. C. As regards the other two accused persons, Fazal Elahi and Fateh Haider, the High Court confirmed the conviction under section 302 by the application of section 34, P. P. C. but only after recording additional evidence viz. the statement of the doctor who had performed the post‑mortem examination of the body of the deceas ed Abdul Aziz. At the trial, this doctor's evidence had been to the effect that the death was due to shock and haemorrhage caused by fracture of the skull and of the left humerus. As the latter injury is only rarely a direct cause of death and as the fracture of the skull was clearly the result of a single blow, the contention was raised that, in view of the finding regarding the common object of the assembly, and the absence of evidence to fix responsibility for the fatal blow, Fazal Elahi and Fateh Haider, who with a third person were found to have attacked Abdul Aziz could not be convicted of murder. When recalled, the doctor was pointedly questioned regarding the possibility of Abdul Aziz's other injuries. which included internally a tear in the liver and congestion of the lungs, having contributed to his death. He declared that the liver injury would in all probability have caused death, even in the absence of the fractures, and that the death was accelerated by the other injuries. The view taken by the learned Judges concerning the effect of the reception of this additional evidence appears clearly from the following extract taken from their judgment :‑ "If the omission had been allowed to stand, the consequence might have been that neither of the appellants could have been convicted of murder of which we are finding them guilty and the result must have been a miscarriage of justice". They accordingly held that Fazal Eahi and Fateh Haider were guilty under section 302/34, P. P. C. A claim for a retrial, on the basis that the case had proceeded throughout on a different footing, viz., that the cause of death was a blow on the head which fractured the skull, was rejected. The appellant's counsel declined the offer of an opportunity to rebut the doctor's additional evidence. The result of the appeal in the Federal Court was that the convictions of Fazal Elahi and Fateh Haider for murder were set aside. As regards the additional evidence recorded by the High Court, the considered opinion of the Federal Court was expressed in the following passage :‑ "We find that, for a just and proper decision of the case, no additional evidence need have been recorded, and that the additional evidence actually recorded did not have the effect which the learned Judges thought it had." This Court was also obliged to bring under close and critical examination, a discussion of its judgment in the case of Ali and Bashir (P L D 1952 F C 71) which occupied approximately one‑half of the judgment of the High Court in the case of Fazal Elahi and others (supra). The question of the propriety of recording certain additional evidence in the High Court had been adjudicated upon also in All and Bashir's case (supra), but no reliance had been placed on that case as a precedent by either party at the High Court hearing of the later case. The discussion did not, in fact, enable the learned Judges to extract any principle from this Court's decision in Ali and Bashir case (supra) which they could regard as binding upon themselves. We do not propose to reproduce any part of the discussion in this judgment. For the purposes of the present case, it will suffice to state that after exhaustive examination this Court was obliged to record the following conclusions, viz: (1) that "the learned Judges of the High Court had taken it upon themselves to criticise, in vigorous terms, the law laid down by this Court (on the point), after having attempted to destroy the substratum of fact upon which that law was based;" (2) that the law laid down by this Court, as well as the hypothesis of fact on which it is founded, are sacrosanct in relation to all Courts on which the law is binding, and Courts, whose findings have been reversed by this Court, face, insuper able difficulties, and act in a manner contrary to judicial tradition and decorum, if they attempt to justify their previous decision in order to assert their own view of the law or the facts." Certain passages from the judgments of the High Court in the case of Fazal Elahi and others (supra) must of necessity, be reproduced, as they are directly relevant to the substance of the offending grounds, viz. (i) that the additional evidence was recorded "to fill a gap in the prosecution case", and (ii) that "the remarks of the Hon'ble Judges betray a lack of the knowledge of elementary principles bearing on the administration of criminal justice". The following extracts relate to the first point : ‑ ". . . . . there is a fundamental distinction between filling up gaps in the prosecution evidence and removing discrepancies in such evidence. The former implies that evidence was lacking as to a fact which was a necessary constituent of the offence charged and the Appellate Court filled up the gap by taking additional evidence whereas the latter means that the Appellate Court resolved an apparent conflict in the evidence not in the interests of justice, but merely to be able to maintain the conviction." The powers to be exercised by an appellate Court under section 428 are subject to two over‑riding considerations: ‑ "(1) that the additional evidence is considered to be necessary by the Appellate Court in the interests of justice ; and (2) that the accused is not denied his right to a fair trial." (1) (per Muhammad Munir, C. J.) "For the interests of justice are not always identical with the interests of the accused, and if in the present case we were told that we filled gaps for the prosecution, we should accept the accusation only if we thought that our function was not to do justice to the accused and to the person whom he is alleged to have killed, but to find a pretext for acquitting the accused." (per Kayani, J.) The second point is directly related to the following ex tracts: "Similarly, it often happens that owing to the negligence of the prosecution counsel a witness is not questioned in the trial Court on a material point. In such a case the Appellate Court will be within its rights to recall such witness to avoid a possible miscarriage of justice ...... While exercising these powers Courts of criminal appeal in this country should never overlook the basic position that the duty of a criminal Court is fundamentally different from that of a Court of civil appeal. While the later is a tribunal inter parses, (1) P L R (1952) Lah. 389 at p. 410=P L D 1952 Lah. 388 at pp. 400, 401 (2) P L R (1952) Lah, 389 at p. 414= P L D 1952 Lah, 388 at; p. 403 the Court of criminal appeal always has a third party before it, namely, society, and its discretionary powers are not controlled by rules ; of estoppel, waiver, etc. therefore negligence, laches, even admission by counsel are not a bar to the Court's exer cising the power to take further evidence, provided the power is intended o be exercised in the interest of justice and the accused is not prejudiced in his defence on the merits.'(1). (per Muhammad Munir, C. J.) "(In that case) we would be doing injustice to the deceased person and the society for the reason that the society was inefficiently represented at the time of the trial."(2) (per,Kayani, J.) It is of advantage to reproduce the first four of the seven grounds of appeal, which all relate to the same subject. The second and fourth grounds have been held to constitute contempt of the High Court. "(i) That the Honourable Judges of the High Court, having declined to accept the prosecution story of a premeditated and concerted attack to murder the members of the complainant party, they could not make Fazal Elahi and Fateh Raider liable for the murder of Abdul Aziz by the application of section 34, P. P. C., especially when they had exonerated the remaining petitioners (including Painda Khan) of the charge. (ii) The Honourable Judges were not legally justified in accepting the suggestion of the Crown for the re‑examination of Dr. Moonis in appeal. The step was taken to fill a gap in the prosecution case as well as to justify another judgment of the High Court which was reversed by the Federal Court in P L D 1952 F C 71 (All and Bashir v. Crown). (iii) If the Honourable Judges were of the view that it was really a fit case for the application of section 34, P. P. C. and that they were competent to procure fresh material for building up a case of joint liability, they should have ordered a fresh trial so that both parties could have an equal chance. (iv) That the remarks of the Honourable Judges betray a lack of the knowledge of elementary principles bearing on the administration of criminal justice. They seem to ignore tae basic fact that an accused person is presumed to be innocent unless he is proved to be guilty and that the interests of what they call society can be safeguarded best by protecting the honour and liberty of a subject in accordance with the cardinal principles of criminal jurisprudence." It is clear that these four grounds together relate to the special liability imposed upon Fazal Elahi and Fateh Haider, by the application of section 34, P. P. C., with the aid of the additional evidence of the doctor. With reference to the second ground, it was urged that it is factually correct and conveys no innuendo. The reference to filling a gap in the prosecution merely repeats what both the learned Judges themselves had said. An (1) P L R (1952) Lah. 389 at p. 410, 411=P L D 1952 Lah 388 at p. 400, 401 (2) P L R (1952) Lah. 389 at p. 414 =P L D 1952 Lah. 388 at p. 403 attempt to justify their earlier judgment which had been reversed by this Court was clearly visible on the face of the judgment under appeal, and the sole purpose in making mention of this matter was to indicate that the learned Judges were so greatly pre‑occupied with the task they had assumed of justifying their decision which h .d been reversed, that it had affected their approach to the case before them, as well as the degree of attention which they could devote to its facts and circumstances. The fourth ground is clearly addressed to those expressions in the judgments of both the learned Judges which convey their anxiety on behalf of what the learned Chief Justice described as "a third party, namely, society". With reference to these observations, an argument was raised in the Federal Court, and it was found necessary to deal with it at some length. To reproduce the whole of the relevant passage from the Court's judgment would lengthen this judgment inordinately, but the substance may be reproduced fairly briefly. Declaring that these observations had caused the Judges of this Court some concern, this Court remarked as under :‑ "The introduction of a third party into a matter which we have always understood to lie between the State and the criminal is apt, in our view, to give rise to dangers in the administration of the criminal law. The matter is of the utmost importance both to the safety and well being of the State and its subjects, as well as to the liberty of the individual subject to whom the processes of criminal justice may be sought to be applied. This is not, however, a suitable occasion for an exhaustive discussion of the subject which is dealt with in numerous admirable text‑books well‑known to students of criminal law." Definitions of the expressions "crime" and "legal punishment" were quoted from Halsbury's Laws of England, to show that the Crown acting as prosecutor of an accused person, does so on behalf of the State as constituted by the people, and a caution against the introduction of third party interests was expressed in the following words :‑ "If the expression `society' was employed to denote an entity other than the State .. ... We would consider it our duty to express a strong caution against the introduction into a solemn proceeding lying exclusively between the State and the alleged criminal, whose consequences might be of the gravest character, of consideration relevant to any other person or body of persons whatsoever." With reference to the sense of duty under which the learned Judges of the High Court appeared to have acted, for the purpose of remedying the shortcomings of the public prosecutor at the trial, the case of Adan Haji Jama (1948 A C 225) was cited, where the Privy Council set aside a conviction obtained at a trial in Africa for the single reason that, in the absence of a public prosecutor, the examination‑in‑chief of prosecution witnesses had been conducted by the Judge himself. Stress was laid on "the paramount importance of keeping the functions of Judge and prosecutor distinct, to the greatest possible extent, both in the mind as well as in practice", and it was added that if the judgment of the High Court were read subject to this cardinal principle, all danger of misconstruction would be avoided. There can be no manner of doubt that to an appreciable extent, the criticism conveyed in the fourth ground of appeal‑as distinct from the words employed was accepted by this Court. Before proceeding to state and consider the grounds on which the High Court order under appeal is based, it will be useful to examine the nature of the duty devolving upon a counsel who invokes the special jurisdiction of this Court in criminal matters on behalf of convicted persons. The Federal Court as the successor to the jurisdiction previously exercised in respect of Pakistan appeals and petitions relating to criminal matters by His Majesty‑in‑Council, is not a Court of Appeal in the ordinary sense of the terms. A fairly comprehensive statement of what the Judicial Committee would not ordinarily do is contained in the judgment of Viscount Simon, L. C. in the case of Muhammad Nawaz (I L R 23 Lah.36), but it is more useful for the present discussion to reproduce certain weighty pronouncements regarding the circum stances which must exist before the Judicial Committee would interfere in a criminal matter. The following are selected from a large number to be found in the published cases. (1) "Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done." In re. Dillet (L R 12 A C 459 at p. 467). (2) ". ....unless you can prove that there was no proper trial at all, that the forms of all judicial procedure were disregarded not merely according to local ordinances, but according to what I may call the unvarying character, which is common to all, we cannot interfere. If there was anything very gross, it might come under the same category " Hunmantrao v. K. E. (I L R 49 Bom. 455 P C). (3) "Their Lordships have frequently stated that they do not sit as a Court of Criminal Appeal. For them to interfere with a criminal sentence there must be something so irregular or so outrageous as to shock the very basis of justice." Mohinder Singh v. K. E. (59 I A 233 at p. 235). (4) "it will not interfere with the course of criminal law unless there has been such an interference with the elementary rights of an accused as has placed him outside of the pale of regular law, or, unless within that pale, there has been a violation of the natural principles of justice so demonstratively manifest as to convince their Lordships, first, that the result arrived at was opposite to the result which their Lordships would themselves have reached, and, secondly, that the same opposite result would have been reached by the local tribunal also if the alleged defect or misdirection had been avoided." Arnold v. K. E. (41 I A 149 at. 173) When it is borne in mind that nearly all the cases which can be brought before the Federal Court on the criminal side are matters which have been dealt with either in appeal (as the second Court) or in revision (generally as the third Court) by a High Court, and that in every case where this Court decides to interfere, a gross error "so outrageous as to shock the very basis of justice" or such as constitutes "violation of the principles of natural justice", must be found, which must be "demonstratively manifest", some understanding of the difficult position of a Counsel presenting a petition for special leave to appeal before K this Court may be gained. Yet, in undertaking the duty, Counsel rely on the readiness of those experienced in the administration of the law to appreciate their difficulties, and where there is an appearance of transgression, to regard it with sympathy and toleration. Without such a reassurance, the apprehension that the criticism which they are obliged to offer may be viewed in a personal or over sensitive light must act to deter Counsel in the performance of their duties, to such an extent as would necessarily affect this Court's capacity to do complete justice" in cases coming before it. However, in attempting to establish that a state of affairs exists which it is competent for the Court to find; for the purpose of exercising its jurisdiction, it is not universally true to say that Counsel enjoy the same degree of liberty of expression as is possessed by the Court. The demands of judicial comity and courtesy lay upon Courts a duty to exercise the power of criticism of Courts of inferior jurisdiction with restraint, and, in its application to Counsel invoking the superior jurisdiction, this obligation is reinforced by considerations arising out of the necessarily tentative nature of the submissions advanced by Counsel. In other words, without minimising in any way the function of stating in substance what he wishes the Court to hold, provided the Court is competent to hold it, Counsel should be careful not to add to the difficulties of his position by needless stringency of language. Provided' the criticism is advanced with the single purpose of aiding in the due dispensation of justice, no words employed can be too strong, if in choosing them, it is also borne in mind that so far as possible, no words should be used which gratuitously bring disrepute to, or belittle the Judges or the Court whose work is being criticised. Although several factors conducing to strength of expression are present, such as the need to establish an error "so outrageous as to shock the very basis of justice", the requirement of brevity in expression, and the anxiety of Counsel to place his client's case to the best advantage before the ultimate Court of appeal, it should never theless not be beyond the capacity of Counsel practising in this Court to gain their and without transgressing the limits of reasonable expression. The ample range and scope of legal language and terminology provide the medium, and if a guiding principle must be laid down, it may be found in the dictum‑‑"If there must be excess, let it be an excess of gentleness." Considerations of these difficulties of Counsel leads naturally f to the questions whether any qualification can safely, with due a regard to the interests of justice, be laid on the privilege to be a allowed to Counsel in a Court of ultimate jurisdiction such as ‑the Federal Court. To succeed at all, he must level criticism of a drastic and radical kind against the judgment under appeal. But cases have occurred in which the Judicial Committee has c recorded findings affecting the impartiality and even the integrity t of the Judge whose decision was appealed from, and it is safe to presume that the matters were raised before their Lordships by way of pleadings. A typical case of this kind is Lanier v. Rex (L R 1914 A C 221). If alike situation were to arise before this Court, it seems difficult to avoid the conclusion that the pleadings would per se, and on the reasoning adopted by the learned Judges in the judgment under appeal, invite attachment for contempt of the Counsel who prepared or presented them, and a clear denial of justice would be likely to follow. Indeed, in the present case, notice was issued to Mr. S. M. Haq and two other lawyers engaged in the appeal of Fazal Elahi and others (supra) to show cause, on a date in advance of that fixed for hearing of the appeal before the Federal Court, why their names should not be removed from the roll of advocates of the High Court, for having put forward the two pleadings in question. These proceedings were stayed by an order of this Court, in order to avoid prejudice to the appal pending before this Court, but despite this, it was obvious at the hearing of the appeal that Mr. S. M. Haq acted and argued under the shadow of the notice. He openly expressed his fear that he might render himself liable to further action of the same kind by the High Court, by repeating the substance or the language of the grounds in question. The pressure on his mind was relieved only partially by an assurance of full protection held out by this Court. In a future case, it may be a matter for serious consideration whether the need to ensure that the Counsel who assist this Court in dispensing justice should enjoy the degree of liberty of expres sion appropriate to the courage they must display in preparing, and pressing their grounds, does not outweigh the need for ensuring against the danger of such liberty being abused, and whether the full and undoubted power of control vested in the Court is not, in the circumstances, a sufficient safeguard. Counsel appearing before the Judicial Committee enjoyed the protection of absolute privilege. We cannot accept the views of the Indian High Courts on the subject of the privilege of Counsel as having any deter mining influence in relation to the quality of the privilege necessary for the due exercise of this Court's special jurisdiction. In so saying, we wish to make it clear that we are not expressing any preference, on the basis of merit or otherwise, between the two schools of thought represented by the published decision of the Indian High Courts, which have been clearly set out in the judgment under appeal. In this case, however, the arguments in the High Court clearly proceeded throughout on the basis that only a qualified privilege could be claimed, and it would not be fair to the learned Judges whose judgment we are examining in this appal, nor is it necessary for resolution of the matter, that the plea should be placed on any higher footing Mr. Justice Rahman, who delivered the judgment of the Full Bench, in recording his con clusion that a Counsel's privilege in the Courts of Pakistan is a qualified one, has used expressions indicating that, in his opinion, the limitations applicable are those enumerated in section 499, P. P. C. The argument based on considerations of public policy has been mentioned without comment by the learned Judge and it may be of advantage to state here that the contention of Mr. Manzur Qadir for the appellant seemed to be that the cardinal necessity was to provide conditions in which Counsel can perform their difficult duties with the utmost fearlessness and yet be protected against the existence of means by which a lawyer might be overawed and reduced to a state of pusillanimity, by reason of something said or done by him in the course of per forming these duties. He did not ask for protection against the consequences of deliberate and malicious libel or slander. In view of what has already been said on this subject, we do not consider it either necessary or desirable to record any more definite views on this topic. The point which has received the moss elaborate treatment in the judgment of the Special Bench is that of jurisdiction. The proposition advanced for Mr. S. M. Haq was that if he exceeded his privilege in furtherance of the cause presented by him, and with reference to matters arising therein for adjudication, only the Federal Court could decide as to such excess, and there was consequently ouster of the High Court's jurisdiction. Reliance appears to have been placed on Order IV, rule 29 of the Federal Court Rules, 1950, which reads as under:‑ "Where on the complaint of any person or otherwise, the Court is of opinion that an Advocate has been guilty of mis conduct or of conduct unbecoming an Advocate, the Court may take such disciplinary action against him as it may deem fit, and may report him to his own High Court." It appears that by reading this rule with clause 8 of the Letters Patent of the High Court, it was sought to make out that, in circumstances of the present kind, there is an implied repeal of the relevant terms of the clause, so as to deprive the High Court of jurisdiction. The High Court rejected the argument, as appears from the following passage:‑ "If the Federal Court has also to remit to this Court a question of suitable action against an advocate of this Court it is idle to argue that, on a supposed doctrine of implied repeal, resting on no statutory provision, this Court is divested of its jurisdiction in any such contingency as is envisaged by Counsel." In the view we take of the matter, no question of implied repeal arises, but we think it desirable to point out firstly that the Rules of this Court are necessary rules, and secondly that the rule 1 referred to does not, in our opinion, impose any obligation upon the Federal Court to remit a case of the relevant kind to the High Court, as the learned Judge seem to imply. To another observation, in the judgment viz., that it is inconceivable that the undoubted jurisdiction of the High Court would be taken away in a case of misconduct by Counsel in this Court were overlooked by the Court through inadvertence, the rule itself furnishes an obvious reply, i.e., that there is provision enabling this Court to act on a complaint by, say, the High Court, and therefore no index to the existence or otherwise of jurisdiction in the High Court is furnished by the instance. As there are references in the judgment under appeal to certain observations on the point contained in this Court's judgment in the case of Fazal Elahi and others (supra) and as some reliance was also placed on those observations by Counsel for the Punjab Province, it is desirable that the position should be clarified in this respect. What this Court said on the point, when pressed by Counsel to declare whether the two grounds of appeal to which exception had been taken by the High Court were within the privilege of Counsel, was this:‑ (1)"Having given our most careful consideration to the question, we have decided to express no opinion upon the question at this stage when the proceeding has already been commenced and is pending in the High Court." The words were not intended, and cannot be construed, to mean that this Court was waiving jurisdiction or conceding absence of jurisdiction. The paramount consideration was to avoid further inference with the due course of a proceeding commenced in the High Court, and this Court was also conscious that the affected party was free to raise before the High Court the same contentions as had been pressed before this Court. There was no reason to suppose that the contentions would not receive the fullest consideration in the High Court. Proceeding on the basis that the jurisdiction under the Letters Patent was unimpaired by anything contained in the Federal Court Rules, the judgment under appeal declares as under:‑ "The jurisdiction being there, any questions that arise in the exercise of that jurisdiction would also fall to be deter mined by this Court, and consequently the question, whether the grounds objected to were couched in proper language, must be decided by this Court . . . there is no warrant for the view either in authority or in well‑recognised principles that this Court cannot take action against an advocate in respect of some thing done or intended to be done before the Federal Court, which bring this Court into contempt." In fairness to the learned Judges it should be mentioned that before proceeding to find that the two grounds in question had the effect of bringing the High Court into contempt, reference is made in their judgment to the special nature of this Court's jurisdiction in criminal matters, and it is observed that "no one would think of taking exception to any legitimate grounds of appeal" in the Federal Court, and that the High Court would certainly have no desire to shut out any such grounds, but it could not "view with equanimity any attempt to lower its dignity or to bring it into contempt." The explanation was added that action by the High Court would not be motivated by considera tions of "personal prestige" but in order to prevent "unjustifiable conduct" tending to shake public confidence in the capacity of the High Court to administer justice. As regards the grounds themselves, it was held that the first grounds "makes an insinuation that the Judges were partial towards the prosecution and had an ulterior motive not connected with the decision of Fazal Elahi's case (supra), and seemed to impute "judicial dishonesty to the Judges of the highest tribunal in this Province". The learned Judges thought that in this ground, it would have been legitimate to say that it was unnecessary for this Court to discuss the case of Ali and Bashir v. Crown supra while disposing of Fazal Elahi's case (supra)". With reference to the second ground it was observed that it was "still more indefensible on the language used" and that no necessity had been shown which would justify the attempt to make out that the Judges who decided Fazal Elahi's case (supra) in the High Court were ignorant of the elementary principles of criminal law; two further inferences were drawn from the words used, namely, that they attributed rank inefficiency and utter incompetency to the Judges of the Court. The finding that by these grounds, submitted in the course of a proper legal proceeding in the Federal Court, contempt of the High Court was committed seems to be plainly incorrect. In this connection we desire to refer to certain observations of the Privy Council in a comparatively recent case, that of P. D. Sham dasani (72 I A 189): "But apart from the question whether the motion was wise or expedient, it has to be decided whether these words could be properly regarded as a contempt of Court. The principle to be applied is clear enough. For words or acting used in face of the Court, or in the course of proceedings, for they may be used outside the Court, to be a contempt, they must such be as would interfere, or tend to interfere with the course of justice. No further definition can be attempted. It must be rare indeed for words used in the course of argument, however irrelevant, to amount to a contempt when they relate to an opponent, whether counsel or litigant." To a considerable extent, this dictum goes to support the contention of counsel for the appellant that by action taken in the course of a legal proceeding, it is not possible to commit contempt of any Court except that which is seized of those proceedings, and that if such action involves the use of any expressions concerning any other Court, that may amount to libel or defamation of such other Court, but not in any case to contempt of that Court. Here the words A ere used in the course of pleadings which stand in relevant respects, on the same footing as arguments. It will be clear from what has been said already that they were by no means irrelevant to the case. It is true that they were not used concerning the Crown which was the opposite party, but as has already been remarked, it is natural, because it is necessary, that grounds of appeal presented in the Federal Court should be largely composed of criticism of the treatment of the case by the High Court. Such criticism can hardly be conceived to interfere with the course of justice in the Federal Court, for on the contrary it is advanced in the interests of justice as a general rule, and in Fazal Elahi's case (supra) that purpose can be said to have been achieved in great measure. It is possible for a proceeding in one Court to be at the same time a contempt of that Court by reason of interference with the course of justice therein, as well as contempt of some other Court to which reference is made in such proceeding? No case directly furnishing an answer has been brought to our notice, although the negative was maintained with some force by counsel for Mr. S. M. Haq in his concluding arguments. There is indeed a South African case, to which reference is made at page 21.9 of Tek Chand's Law of Contempt of Court and of Legislature (2nd Edition), of a Magistrate being attacked by a litigant and charged with malice, partiality, etc. in an affidavit presented to the Court of Appeal of which a copy was sent also to the magistrate. It was held in that case that there was contempt of both Courts which could be punished summarily by the Supreme Court. The facts obviously bear no parallel to those of the present case, where what is said is directly relevant to the High Court decision and the substance of the criticism has in the event, been found by the Federal Court to be justified in great measure. Moreover, Mr. S. M. Haq has not acted in more than one Court. Therefore, the case from South Africa is of no assistance, nor do we propose to examine the question any further, in view of the slight attention paid in the course of arguments to this point, when compared with the great scope and intricacy of the matters involved. We feel no hesitation, however, in holding that by his action, Mr. S. M. Haq cannot be supposed to have been capable of commit ting contempt of any Court except the Federal Court. It is noticeable that in determining whether or not Mr. S. M. Haq's action constituted a contempt of the High Court, the judgment under appeal makes no reference either to the matter in the High Court judgment in AU and Bashir's case (supra) to which the offending grounds were directly addressed, or to the observa tions made concerning that matter, in the light of the criticism advanced in the grounds in question, in the judgment of the Federal Court in appeal. The words of the two grounds have been taken as they stand, and the learned Judges have been content to form an estimate of the effect of those words; standing by themselves, upon the mind of the reader. It may be that their view was that such examination was not necessary, if the words were regarded as a contempt, and the view is tenable in so far as contempt cannot be met with the plea of justification. But Mr. S. M. Haq was not arraigned for contempt and there are passages in the judgment which clearly indicate that the learned Judges were conscious that Mr. S. M. Haq was entitled to raise the plea of privilege. They have observed that the High Court should "vigilantly and zealously safeguard the privileges of the bar in this behalf" but have added a caution that "where there are privileges, there are also corresponding obligations", and the observation regarding the limit to which the counsel might have gone in criticising the High Court judgment in his second ground of appeal can only be understood as recognising the existence of a valid plea of privilege. We appreciate that it would be embarrassing for any Judge or Judges of the High Court to examine, in the manner which we are adopting in the present case, the High Court judgment which was criticised and the Federal Court judgment in so far as it deals with the criticism. Critical analysis of the previous decision of the High Court, in relation to the statements in the offending grounds could hardly have been attempted, without either resiling from the view there taken which would be out of the question, or embarking on a process of justification such as this Court found it necessary to condemn in clear terms in its judgment in the case of Fazal Elahi' and others (supra). It is clear that a correct appreciation of the claim of Mr. S.M. Haq on privilege could only have been attempted by the High Court at the cost of acute embarrassment in the examination of the only matters which were relevant to the decision of the claim. Nothing can bring out more plainly the fact that, in the present case, the function of deciding on the point of the privilege belonged exclusively to this Court and could not be exercised by any other Court in Pakistan. This Court was alone competent to examine all the relevant matters with the fullest freedom, andl`1 without embarrassment of any kind. Its findings by virtue of its super‑eminent position would be binding on the High Court, as on all other Courts in Pakistan. We do not propose to consider in this judgment whether or not circumstances may exist in which an action of a lawyer or a litigant performed in this Court, may be within the purview of the High Court, for determination of all relevant matters arising therefrom, in. relation to its jurisdiction in contempt, or under any instrument applicable to lawyers. The range of possibility is infinite and no purpose useful for the present discussion will be served by examining any of these possibilities. But as regards a situation such as that which arose in the present case, we feel not the slightest hesitation in holding that in respect of any allegation of misconduct, by way of defamation of the High Court or contempt, which could have been brought against Mr. S. M. Haq, the function of adjudication was, by the very necessities of the case, exclusively vested in this Court. For the sake of clarifying the point we repeat that the reasons are two‑fold. Firstly, the plea of privilege is a competent one in either case, and the matters relevant to its determination are such as this Court, and this Court alone is capable of examining and adjudicating upon. Secondly, the interests of justice imperatively require that this Court should not tolerate usurpation of its jurisdiction by any inferior Court, in other words, the mere facts of an appeal to this Court being competent is not a justification for allowing its exclusive power to be exercised by any other Court, however competent that Court might be thought to be for the purpose of dealing with justiciable issues of an ordinary kind. The fact that such Court may be the only Court which is competent to impose a particular punishment upon the offender to which he is liable under some statutory instrument makes no difference to the question of this Court's exclusive competence in the matter. The statute‑book contains numerous instances of provisions whereby particular matters are placed within the exclusive jurisdiction of certain specified judicial or executive authorities ; this is enforced by the method of requiring that when such an issue arises, the Court of general jurisdiction must refer it for a final decision to the authority having exclusive jurisdiction. Clause 8 of the Letters Patent prescribes no special procedure. The empowering words, viz., "to remove or suspend from practice on reasonable cause" leave ample scope for reference of a particular issue such as arose in the present case. Nor does the validity of the principle depend upon the making of a reference. A case very closely in point is that published as In re: Emperor v. M. and others, Advocates and Pleaders (A I R 1944 Lah. 159 at 160 and 161), where the Lahore High Court was required to take action against a number of advocates and pleaders, on a reference by the Privy Council which was made in the following terms :‑ "Twenty of (these applications for leave to appeal), I think, have been applications in forma pauperis in which there was a certificate by counsel that they were fit cases to be heard before the Privy Council. In only one of them has counsel been able so suggest any valid reason at all; and that was not a good reason. But in the other cases, there was absolutely no foundation at all for a certificate being given that this was a fit case to be heard before the Privy Council, once it is understood upon what grounds the Privy Council entertains appeals in criminal matters . . . . . In our opinion, it is quite a serious dereliction of duty on the part of these persons who give' ill- considered certificates of this kind; and their conduct will be brought to the attention of those who are responsible for the discipline and professional behaviour of the Bar in Lahore." The action taken by the High Court will appear from the following extracts from the judgment of the Special Bench, which clearly indicate that the learned Judges felt themselves to be bound by the finding of the Privy Council regarding the nature of the conduct of the lawyers in question :‑ (1) "The Privy Council brought the conduct of these respondents to the notice of this Court and this Court had no alternative but to call upon the respondents to show cause why they should not be dealt with under clause 8 of the Lahore High Court Letters Patent or section 13, Legal Practitioners' Act. Having regard to the views expressed by Lord Atkin, we are bound to hold that the respondents by granting these certificates, were guilty of what was described by Lord Simon, L. C. in I L R (1942) Lah. 36 as an abuse of the process of the Court and what has been described by Lord Atkin as a serious dereliction of duty. Having regard to the observations of Lord Atkin, none of these respondents has any defence whatsoever to this charge." In an earlier case reported as "In re : ,L. and another, Advocates, High Court, Lahore, (A I R 1943 Lah. 210), the same High Court took action, on similar grounds, against two advocates. One of them had issued 10 certificates in a period of four years, and the other 4 certificates in the course of a single year. All the petitions for special leave, in relation to which these certificates had been issued, had been dismissed by the Privy Council in the circumstances, there might be thought to be no impropriety or excess of jurisdiction by the High Court in deciding, as it did, that gross professional misconduct had been committed, by the granting of certificates in cases where, in the opinion of the Special Bench of the Lahore High Court "no reasonable grounds of appeal to His Majesty‑in‑Council existed" Yet, it falls to be observed that the sovereign's prerogative jurisdiction to entertain appeals of all kind from the Indian High Courts was unfettered, and there is no doubt that, through the years, the strictness in regard to interference in criminal matters which the Judicial Committee had initially observed was progressively relaxed and new categories of cases were from time to time brought within the scope of inter ference by His Majesty. This peculiar feature of the jurisdiction of the Judicial Committee obviously militates against determination by any other Court or institution of what might be "reasonable grounds of appeal" in any given case, even ex post facto, but much more clearly, in advance of such determination by the Judicial Com mittee in a pending matter. The position is in all essential respects the same where the question is not of a certificate that a particular case is a proper case for appeal to the Privy Council, but of a pleading that a particular error committed by a High Court is a proper matter attracting the jurisdiction of the Federal Courts. Only the Federal Court can decide whether the pleading is al proper pleading. It is thus clear that the declaration of the High Court, with reference to the High Court's power of taking action against its advocates under clause 8 of the Letters Patent, that "the jurisdic tion being there, any questions that arise in the exercise of that jurisdiction would also fall to be determined by this Court" cannot be accepted without qualification. The present case provides a second clear example, the first being that appearing from the Special Bench decision of the Lahore High Court in Emperor v. M and others, Advocates and Pleaders (A I R 1944 Lah. 149) cited above, of such action having to be based upon a finding of misconduct reached by a superior Court. The question does not go to ouster of the High Court's jurisdiction under its Letters Patent, by "implied repeal" or otherwise nor is the effect produced of rendering that jurisdiction conditional in any sense, as the learned Judges appear to have thought. The simple fact is that while the exclusive power of the High Court to punish one of its advocates under the Letters Patent remains unimpaired, in a case such as the present, determination of the question of fact which is to constitute a "reasonable cause" is exclusively reserved to another Court, namely the Federal Court, whose findings must of necessity be accepted by the High Court which must govern itself accordingly. Certain practical considerations have also been taken into account by the learned Judges in examining the question. It seems to us that, correctly understood, Order IV, rule 29 of the Federal Court Rules provides an apt mode in which an issue of the kind here under consideration, being within the exclusive power of determination of this Court, may be referred to this Court for decision by the High Court. In the present case, if the question had been raised in this manner, whether as one of defamation or in contempt, this Court would have been competent to examine the matter and to deliver a finding which would not only enable it to decide whether anything had been done attracting its own powers of punishment, but also to inform the High Court whether there was occasion for the exercise by it of its undoubted jurisdiction under its Letters Patent. On the view that the issue of fact upon which the action of the High Court under the Letters Patent depended was an issue which lay within the exclusive jurisdiction of this Court, it becomes clear that the order the High Court cannot be upheld. It is, however, our duty to consider whether, on the facts which have been canvassed before us in great detail, and on the correct view of the law relating both to defamation as well as the privilege of Counsel, there was any ground for thinking that the words used by Mr. S. M. Haq constituted anything in the nature of a libel on the Judges of the Lahore High Court. In estimating the effect of those words, we have followed what we consider to be the correct principles in cases of defamation. We have examined the words, not as they stand, by themselves, but in their context i.e. in relation to the matter which Mr. S. M. Haq purported to criticise by means of these words. It is also a canon of construc tion of words alleged to be defamatory that the intention of the user is immaterial, and finally, where nothing is alleged to give such words an extended meaning, they must be construed in their natural and ordinary meaning, i.e., that meaning in which a 1 reasonable man of ordinary intelligence would be likely to under‑stand them. In the light of these principles, can the words in either or the two grounds to which exception has been taken be regarded as defamatory ? As to the first of these two grounds, we observe that both in language and content, it seems to be fitted with a high degree of precision to the matter which the words were de signed to criticise. The reference by Mr. S. M. Haq was to certain actions of the learned Judges which appeared on the very face of their judgments. There was avowedly a filling up of a gap in the prosecution evidence and the attempt to justify a reversed decision was more than plain. The explanation offered for mention of the latter attempt is reasonable, and in the context, probable. Therefore, in the absence of any allegation that the words were used in a particular meaning not apparent on their face, we are unable to sustain the conclusion that an imputation of judicial dishonesty was conveyed by these words. As regards the second ground, the position is somewhat different. That the substance of the criticism contained in this ground was, for the most part, accepted as correct by this Court, can only avail to justify the language employed to a limited extent. It was open to Mr. S. M. Haq to declare for the con sideration of this Court, that the learned Judges had erred in introducing a third party into a question which on principle was essentially bi‑partite He may have made this suggestion in a number of different ways. This Court has to a large extent agreed with him in his contention that the approach of the learned Judges, to the question, as evinced by their observations, violated a fundamental principle applicable to the administration of criminal law. But M. S. M. Haq seems to us to have fallen into error in choosing to employ a form of words which stresses, not the nature of the error, but a deficiency of knowledge which was inferred by himself from the observations made by the learned Judges. Absence of intention to scandalise or show disrespect to the Court does not efface the error. One of Bacon's Maxims, which is quoted in the judgment under appeal, reads as follows :‑ "De fide et efcio judicis non recipitur quaestion sed de scientia sive sit error juris sive facti". Wharton translates the maxim thus :‑ "The good faith (or, integrity) and honesty of purposes of a judge cannot be questioned, but his knowledge whether of law or fact, can." Mr. S. M. Haq could perhaps seek to justify his reference to the Hon'ble Judges' "lack of the knowledge etc." by reference to this maxim, which is of undoubted authenticity. It may be a valid defence to a charge of libel. But having regard to Mr. S. M. Haq's special position as an advocate of the Lahore High Court, we do not think that this excuse could serve wholly to exonerate him from blame for the use of language calculated in itself, to lower the reputation of those in respect of whom it was employed, and whose dignity and respect among people in general, it was his duty as an officer of the Court to maintain. It is, one thing to point out an error in a judgment of a Court while invoking the jurisdiction of a superior Court to correct that error. It is quite another thing to apply a damaging label to the Judge or Judges whose error is the sole matter requiring attention. The error is indeed brought out in the same ground by saying that the learned Judges seem to ignore certain basic facts pertinent to the administration of criminal law. This, coupled with the undoubted approval which this part of the ground has received in the appellate judgment of the Federal Court, may be thought to mitigate the offence to a certain extent. The adoption of a subjective, instead of the appropriate objective, form of criticism may perhaps also be attributable to they difficult nature of the problem confronting the counsel, viz., to emphasise the error, with force and precision, in the shortest possible form of words, and so as to produce .the desired effect in the highest degree. We have given thought to the question whether the fault which we discern in the second of the offending grounds is one which requires to be visited with any kind of disciplinary action by this Court. Our considered opinion is that the mistake being unintentional, the other circumstances of mitigation indicated above would have justified an expression of disapproval on our part, or at the most, an appropriate word of warning. Even at this stage, it would be open to this Court to issue a notice to Mr. S. M. Haq in respect of this matter, but it seems to us that, as he has already undergone more than a month's suspension from practice as an advocate of the Lahore High Court, as a result of that Court's order under appeal, there is no necessity for us to take such action now. In the result, this appeal must be allowed, but before parting with the case we think it necessary to record our regret that it should have been necessary for us to interfere with an order made by a High Court in relation to one of its own advocates. We realize that the relationship between a High Court and its advocates duly enrolled by it under its power derived from the Letters Patent is a special one, and that it is a matter of high importance for the due and proper administration of justice that interference in this relationship by any other authority, however exaulted, should be reduced to the very minimum. The special facts of this case, however, compel us to act so as to avoid the order made by the High Court, and in so acting we are fortified by the realization that this action is in every respect essential for main tenance of the due administration of justice in this Court, and for the preservation of its exclusive jurisdiction over conduct of this kind, in proceedings which are pending in this Court. We are satisfied also that by thus delimiting the jurisdictions, and insisting upon those matters being left to the determination of this Court which belong to its exclusive jurisdiction, we are doing nothing to the prejudice of justice, whether administered in this Court, or in any other Court. We wish also to add at this place, an expression of our appreciation of the assistance afforded to us by learned Counsel, and in particular by Mr. Manzur Qadir. We would allow this appeal and direct that the orders of suspension from practice passed on the appellant by the Lahore High Court be set aside. AKRAM, J.‑Mr. S. M. Haq, who is an Advocate of the High Court of Judicature at Lahore, and is also enrolled as an Advocate of the Federal Court of Pakistan, filed a petition (No. &0 of 1952) before the Federal Court, for leave to appeal against the judg ment of the Lahore High Court, in the case of Fazal Elahi and five others v. The Crown (supra). Leave was granted and upon final hearing the order passed by the Federal Court was: "In the result we allow the appeal to this extent, namely, that we alter the conviction of Fazal Elahi and Fateh Haider under section 302 of the P. P. C., to one under section 325/ 149 of the P. P. C., and replace the sentence of transportation for life by a sentence of seven years' rigorous imprisonment. In all other respects the appeal is dismissed . . . . ." In the petition for leave to appeal, were mentioned, amongst others, the following two grounds, (1) The Hon'ble Judges were not legally justified in accept ing the suggestion of the Crown for the re‑examination of the doctor in appeal. This step was taken to fill a gap in the pro secution case as well as to justify another judgment of the High Court which was reversed by the Federal Court in 195 2 P L D F C 71 (All and Bashir v. Crown)." (2) "The remarks of Honourable Judges betray a lack of the knowledge of elementary principles bearing on the administration of criminal justice. They seem to ignore the basic fact that an accused person is presumed to be innocent unless he is proved to be guilty and that the interests of what they call society can be safeguarded best by protecting the honour and liberty of a subject in accordance with the cardinal principles of criminal jurisprudence." Exception to these grounds was taken by the Lahore High Court, as in its opinion, they comprised false imputations and disparaging remarks against the learned Judges, who had decided the case of Fazal Rahi and others aforesaid (1953) P L D 35 F C. Notice was accordingly issued to Mr. Hag to show cause why disciplinary action should not be taken against him under clause 8 of the Letters Patent. Objections were then heard by a Bench of three Judges and thereafter by order dated the 16th March 1953, Mr. Hag, was suspended from practice for a period of three months. It is from this order that the present appeal arises. Counsel for Mr. Hag contended, that the High Court had no jurisdiction to take action under clause 8 of the Letters Patent, as the petition for leave to appeal, said to contain false imputations and offensive epithets, was presented to the Federal Court, which is a Court of higher jurisdiction, and not to the High Court, that the Federal Court, alone, was competent to decide whether or not any disciplinary action was necessary : that as the grounds objected to, were taken by the appellant in the discharge of his professional duties and with a view to obtaining redress, they were privileged, and the appellant was not liable to any kind of action, disciplinary or otherwise : Munster v. Lamb (supra), Sullivan v. Norton (I L R 10 Mad. 28), that in any event there was no reasonable cause within the meaning of clause 8 of the Letters Patent to justify disciplinary action, as at times even Courts of appeal use strong words and expressions against the Judges of Courts whose judg ments come up before them upon appeal : In re: Dillet (12 A C 459) ; King Emperor v. Dahu Raut (62 I A 129), that the words used are only a crude and coarse made of expression and are not meant to give offence or to insult ; K. L. Gauba v. The Hon'ble the Chief Justice and the Judges of the High Court of Judicature at Lahore (1941 F C R 54=I L R 23 Lah. 712 (F C)). No one appeared for the respondents. The Advocate‑General of the Punjab, however, appeared for the Local Government and contended that both the High Court as well as the Federal Court were entitled to exercise control in their own respective sphere ; that the enrolment in the Federal Court does not cause the powers of the High Court under clause 8 of the Letters Patent to merge into those of the Federal Court : that no doubt, if the Federal Court has already expressed its opinion regarding any matter, the High Court cannot act contrary to that opinion, but this is entirely due to the binding force which a decision of the higher Court always possesses : that false imputations of motive and offensive language towards a Judge constitute reasonable cause within clause 8 of the Letters Patent ; that the case is not a fit one for interference in the exercise of the prerogative powers of the Crown Arnold v. King Emperor ((1914) A C 644), Muhammad Nawaz‑ v. The Ring‑Emperor (supra). On the point of jurisdiction, which was argued before us at some length, it may be observed that clause 8 of the Letters Patent does not vest any new kind of jurisdiction in the High Court, it merely confers upon it a controlling power over its own officers, in order to maintain discipline amongst them in the several jurisdictions which the High Court possesses under its Letters Patent, namely, Civil, Criminal, Original, Appellate, Revisional, Testamentary, Matrimonial and Admiratly jurisdic tions. Mere enrolment in the Federal Court, therefore, cannot affect the power of control by the High Court, in these respects. The provisions of a legislative enactment can be altered or suspended only by another legislative enactment. As long, there fore, as there is no change in clause 8 aforesaid and a lawyer continues on the rolls of the High Court and of the Federal Court, he must be considered to be amenable to control by both by the High Court under clause 8 of the Letters Patent and by the Federal Court under Order IV, rule 29 of the Federal Court Rules. If the Federal Court has already given its opinion upon any matter, the High Court will doubtless refrain from acting contrary to that opinion, but this is due not to a seepage of powers of the High Court, but to principles similar to those contained in section 11 of the C. P. C., namely, to avoid a conflict of judicial orders. As in the present case no opinion on the con duct of Mr. Haq was recorded by the Federal Court, the High Court was at liberty to proceed against Mr. Haq, who continued to be an officer of that Court and as such responsible to it for his conduct both Inside its precincts as well as outside it. There could be no impediment to the exercise of the powers of the High Court on the ground that the libellous statement was made before another Court I.e., the Federal Court, and not before the High Court itself. The High Court has the inherent power to commit for the publication of libel, on the Court on its Judges, although the Court may not have been sitting or its Judges may not have been present at the time of the publication, further it is immaterial whether the contempt is committed with reference to a cause about to be tried or under trial or already disposed of In the matter of K. L. Gauba (I L R 23 Lah 411) ; In the matter of Tarit Kanti Biswas, (Printer and Publisher of "The Amirta Bazar Patrika") and others (26 C L J 459) ; In the matter of William Tayler (26 C L J 345.). If such are the powers of the High Court in reference to contempt matters, than there is no reason to suppose that those powers get cut down for the purpose of taking disciplinary action for libel, under clause 8 of the Letters Patent. In fact, it seems to me that the scope in respect of disciplinary action under clause 8 is much greater and wider, as it is not confined to what must E necessarily amount to a contempt in the strict legal sense of that word. It may be noted here that the power under clause 8 is very different in its origin, nature, and scope, to the inherent juris diction in contempt matters vested in the High Court as a Superior Court of Record. A proceeding initiated under such jurisdiction is regarded as a criminal proceeding and is regulated by practice and procedure under the English Common Law, with all its intricacies relating to counsel's privilege contempt in facie curiae, constructive contempt etc., considerations which, in my opinion, have very little bearing in a mere disciplinary action, regarding persons, who are treated as the officers of the Court. Suppose, instead of contempt proceeding, a criminal prosecution was started by any party against a counsel for defamation it could not have been successfully pleaded in defence that a question of counsel's privilege being involved, the trial could not be proceeded with as the question of privilege was not determined by the Court before which the incident had taken place. (See Penal Code, section 499, exceptions 5 and 9). Overruling then the objection of want of jurisdiction in the High Court, the only question which seems to me to require determination is, whether there exists `reasonable cause' within the meaning of clause 8 for taking action against Mr. Haq. No objective standard for testing reasonableness has been laid down, or perhaps can be laid down, and all that is left to any one as a measuring yardstick for the purpose of ascertaining reasonableness, is only his own discretion. A question, has, Q however, been raised as to counsel's privilege and it is mooted whether statements by counsel, in reference to the High Court, in an appeal before the Federal Court, could properly become the subject‑matter of disciplinary action by the High Court under clause

8. In my opinion, the answer to this would depend upon the nature of the appeal. If the statements are fair criticism, which relate to the foundation of the appeal n itself, or are relevant thereto, no action of any kind can be sustained against counsel for making those statements, even though, they be offensive or scandalous. In such circumstances the statements will be regarded privileged and counsel will be protected, but if in the guise of an appeal, counsel goes out of the way to indulges, in his private pique or to slander any Court or its Judges, counsel will not be protected, as aspersion is not argument and assertion is not criticism. Counsel cannot take unfair advantage of his position and make baseless statements against a Court or a Judge of the Court. "Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt or to lower his authority, is a contempt of Court" (R. V. Gray) (1900 Q B 36). "A barrister may be punished for contempt in respect of language used by him in the discharge of his functions as an advocate. Expressions which might be uttered in the honest discharge of counsel's duty, and which, if so uttered, would be privileged, are, when uttered with the intention to insult the jury or the Court, an abuse of the privilege of counsel and may be punished accordingly by the Judge." (Halsbury's Laws of England, 2nd Ed., Vol. 2, para. 693). In the case of Emperor v. Vankatrao (I L R 46 Bom. 973), a pleader who was accused of rioting and certain other offences, referred to the Sessions Judge as a 'prejudiced Judge' in the written statement filed by way of defence under section 342, Cr. P. C. He was convicted and sentenced under section 228,

1. P. C. On his appeal before the High Court, a difference of opinion arose between the Judges of the Division Bench, and the matter was, therefore, placed before a third Judge, Pratt, J. under section 429, Cr. P. C. Prat, J. upheld the conviction and sentence, making the following observation in the course of his judgment :‑ "Such words are a gross insult to any Court of Justice, but Shah, J. came to a conclusion which is expressed in the following passage from his judgment :‑ "His conduct is consistent with the view that his intention was to press a defence which was adopted and adhered to with out sufficient thought and which was couched in improper langu age and not offer an insult to the Judge." With great respect it seems to me that this passage confuses motive with intention. The accused's motive for using the offensive expression was to support his defence. But if the words are an offence, the excellence of the motive will not make them lawful. A Frontier Tribesman have been known to cross the border and cut off a British Bania's head merely in order to test the blade of a new sword. The motive was simple, innocent and childlike, but the intention was nevertheless murder." It is apparent that the above observation was made with reference to an offence in which intention was an ingredient, but that does not make any difference in the principle that on the pretext of making his defence one cannot resort to insults and invectives. I have set out in the beginning of this judgment order of the Federal Court in Fazal Illahi's case (supra) with the object of showing, to what extent the appeal had succeeded and in what measure the imputations could be said to have contributed towards that end. If Mr. Haq, was relying on the decision of the Federal Court in the case of Ali and Bashir (supra), as is evid ent from his ground No. 1, (quoted above) the proper course for him was to point out to us what similarity, according to him, there existed between the facts of that case and those of the case in hand, namely, Fazal Illahi's case (supra). There could have been no objection to his urging that the evidence, of partisan wit nesses testifying to the facts of an occurrence, is similar in nature to that of a member of the medical‑profession, who deposes as to the result of a post‑mortem examination or his opinion thereon. In this connection, I do not think it would be out of place to set out here the view of which I had expressed in my judgment in the case of Ali and Bashir, as to the powers of the High Court relating to the admission of evidence under section 375 of the Cr. P. C. what I said in that case was as follows (a) "The power of the High Court to take additional evi dence when hearing a reference, is laid down in section 375 of the Cr: P. C. that section is much wider in scope than section

428. Under that section no reason need be recorded for taking additional evidence or making further enquiries, and the matter rests solely m the discretion of the High Court. It cannot be said that the discretion ought not to have been exercised. I do not think therefore, that the appellants can have any legitimate grievance as regards the taking of the additional evidence or not recording any reason for it, but I am inclined to agree that the order of the High Court refusing to give an opportunity to adduce evidence in rebuttal, after the Court had put to some witnesses questions in the nature of cross‑examination, has highly prejudiced the appellants in their defence." (b) "Turning now to the present case, out of the 12 witnesses examined in the Sessions Court, 4 were of a formal nature (P Ws. 1, 5, 6 and 7), of the remaining 8, the High Court re: called six : with the exception of P. W. 3 (tendered only for cross‑examination), the rest were all questioned and cross examined; some of the questions put were in the nature of cross examination which had the effect of nullifying the benefit of what may have been stated by the witnesses earlier in favour of the appellants at the same time the prayer for an opportunity to adduce evidence in rebuttal made by the defence was rejected, all this, in my opinion, was plainly wrong procedure‑a violation of the "fundamental rules of practice" necessary for the safe administration of criminal justice." (a) was not quoted in the judgment in Faza Illahi's case, but some reference to it was made in the passage. "No opinion was expressed on this point (a different point in the third judgment (by Akram, J.) but it was held that refusal of the prayer for an opportunity to produce evidence in rebuttal of the additional evidence which had been received, had "highly prejudiced the appellants in their defence" and constituted a "violation of the fundamental rules of practice necessary for the safe administration of criminal justice." (b) although reproduced in extenso in the earlier part of the judgment, in the latter part of it, the portion under‑lined in (b) was somehow lost sight of, with the consequence, that the remark was made :‑ "It will be observed that Akram, J. regarded the fact that some of the questions put (scilicet by the Court) were in the nature of cross‑examination, which had effect of nullifying the benefit of what may have been stated by the witnesses earlier in favour of the appellants" as being "plainly wrong procedure a violation of the "fundamental rules of practice" necessary for the "safe administration of criminal justice." I am sorry for this, and the more so, as I happened to be a signatory to that judgment. But, whatever may be the proper interpretation of section 375 of the Code or the true effect of the decision in Ali and Bashir's case (supra) it is difficult for me to appreciate the relevancy of the imputations against the Judges who had decided Fazal Illahi's case (supra). If the decision in Fazal Illahi's case to recall and re‑examine P. W. 1 Dr. Moonis, was wrong in law, it was so irrespective of any kind of motive whatsoever ; what then could be the object in g attributing motives and using unseemly language, when they were not necessary in the interests of the appellants in that case. The law does not give any one a privilege to be malicious. I accordingly find the imputations and the words used in grounds 1 and 2, quoted above, to be in excess of the proper limit of fair criticism and comment and Mr. Haq, therefore, not entitled to the privilege and the protection which he claims under the law. Next arises the question whether the imputations and words used in grounds 1 and 2 aforesaid afford reasonable cause under clause 8 of the Letters Patent, for the order, dated the 16th March, 1953. I have already hinted at the difficulty of defining reasonableness nevertheless there is little doubt in my mind, that to say of Judges of a superior Court of Record, imbued with experience, ability and integrity, that they are actuated with personal motives and "betray a lack of knowledge of the elemen tary principles bearing on the administration of criminal justice", are serious reflections on their character and capability, and that such reflections cannot but tend to undermine the confidence of the public in the fairness and impartiality of the Judges and in the administration of justice in accordance with r law. The right to criticise judgments does not carry with it the right to condemn the Judges themselves, and if, under special circumstances, duty demands condemnation. I would say that, even then, decorum and decency must be observed. I am not impressed with the argument that as at times the Appeal Courts use strong words and expressions towards the Courts whose judgments come up before them on appeal, Mr. Haq could not have been at much fault if he used a somewhat strong language towards Judges of the High Courts in Fazal Elahi's case (supra). It is obvious that there exists no analogy between the function of a Court and those of a counsel, one acts in the interests of justice, the other in the interests of his client, one is concerned with evidence, the other with instructions given to him. In the undelivered judgment in The King v. Almon ((1765) 97 E R 94) Wilmot, C. J., observed as follows :‑ "The arraignment of the justice of the Judges is arraign ing the King's justice ; it is an impeachment of his wisdom and goodness in the choice of his Judges, and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them ; and whenever men's allegiance to the laws is so funda mentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, call out for a more rapid and immediate redress than any other obstruc tion 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. To be impartial and to be universally thought so, are both absolutely neces sary for the giving justice that free, open and uninterrupted current, which it has, for many ages, found all over this kingdom." In my opinion the imputations in grounds 1 and 2 set out above constitute reasonable cause under clause 8 of the Letters Patent. It may be pointed out that in the case of Ali Mahomed Adamali v. King Emperor (L R 72 I A 226 at p. 237) their Lordships of the Judicial Committee remarked :‑ "It must be remembered that the question of committal or non‑committal is one for the exercise of the discretion of the Court before whom the application to commit is brought, and, unless there is found to be a serious disregard of the principles of natural justice, their Lordships would be slow to interfere with that discretion." See also Advocate‑General of Bombay v. Phiroz Rustomji and others (A I R 1935 P C 168). Considering everything, and especially the fact that dis ciplinary action under clause 8 of the Letters Patent is a matter of discretion, and there has been no violation of any P principle of natural justice in the exercise of that discretion, I am of opinion that this appeal ought to be dismissed. ORDER OF THE COURT In accordance with the opinion of the majority, the appeal is allowed and the order under appeal is hereby set aside. There will be no order as to costs. A. H. Appeal allowed.