P L D 1964 (W (PLP)

7. It is not necessary to trace the history of the jurisdiction of the High Courts to commit for contempt. I would make a brief mention of it in order to consider Article 123 in its back ground. It would be sufficient to state that this was a jurisdiction which was enjoyed by the superior Courts before the coming into operation of the present Constitution under the common law of England. It was an inherent jurisdiction. It authorised the Courts to deal effectively with all that had a tendency to hinder the normal course of justice or affect the dignity of the Court. The reason for the existence of this jurisdiction was that unless Courts were armed with such a jurisdiction they could no properly function. Prior to the present Constitution what was contempt of Court was deducible from case law. No hard and fast rule could be laid down as to the circumstances under which a certain act would amount to contempt of Court. The present Constitution has removed that uncertainty and lays down as to what would be contempt of Court. The necessity o reference to case law is now obviated.

8. It would be useful to reproduce Article 123 of the Constitution in order to consider the contentions of the respondent. It reads as under:- 123. (1) In this Article, "Court" means the Supreme Court or a High Court. (2) A Court shall have power to punish any person who- (a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; (b) scandalises the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; (c) does anything which tends to prejudice the deter mination of a matter pending before the Court; or (d) does any other thing which, by law, constitutes contempt of the Court. (3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.

9. I now propose to deal with the contentions raised by the petitioner in his written statement and urged by Mr. M. Anwar, the learned Advocate for the respondent.

10. It is stated in para. 2 of the written statement that the respondent neither intended nor conceived that in sending these telegrams he did thereby commit or was likely to have committed an act of contempt of Court. It may be at once stated that the intention of the respondent is immaterial if the Court is satisfied C that the criticism amounts to contempt of Court. In this con nection reference may, be made to the case of Israr Husain v. Crown (P L D 1954 F C 313), Their Lordships observed: "If a person scandalises the Judge of a superior Court in such a manner as to bring him within the definition of contempt it cannot be a good defence to the proceedings for contempt that his intention was not to scandalise because the essential question in such case is the tendency of writing to lower the authority of the Judge by bringing him into disgrace and not the intention underlying the writing. No one can be allowed to defame or abuse a Judge in a public capacity even with the best of motives because if that sort of thing were once held to be permissible the whole judicial system would readily be brought into utter contempt. The mere expression of pious words by the respondent that `he clearly and unambiguously dis-savours any desire or intention to bring this Court into contempt' are of no significance. The intention at best can be taken into considera tion while awarding the sentence."

11. It was very strenuously contended that the selection of candidates for the post of Civil Judges is not a judicial act and, therefore, no offence was made out There is no doubt that the selection of candidates for the post of Civil Judges is not a judicial act in the sense of passing orders while adjudicating a case. In this connection it was urged that the offence of contempt of Court is limited to the promotion of interest of justice with reference to judicial matters. The contention broadly was that there was no contempt if the imputation was made to the High Court in relation to its administrative function as opposed to judicial one. In this connection reliance was placed on the case of Debi Prasad v. Emperor. On a careful study of this case it would appear, though by inference, that if the Chief Justice was' criticised in his administrative capacity, the criticism would! amount to contempt known as "scandalising the Court".

12. The statement in the written statement that an expres sion of view to curtail the jurisdiction of the Court would not amount to contempt of Court was not pressed before us. I may, however, state that it is true that the mere expression of view to curtail the jurisdiction of the Court without any malicious remark about the Court 'itself would not amount to contempt of Court.

13. It was contended, and in fact this was the main contention of Mr. Anwar, that the High Court in selecting candidates for Civil Judges did not act either on the administrative side or on the judicial side and, therefore, the imputation made to it did not amount to contempt of Court. It may at once be mentioned that the sifting of the applications of the candidates for the posts of Civil Judges by the High Court was not in performance of its judicial function. It may also be stated that the selection of candidates for the posts of Civil Judges by the High Court is not prescribed by any rule or law The contention of the learned Advocate for the respondent was that as this is not the duty of the High Court prescribed by any rule or law and as the selection of candidates for the posts of Civil Judges is primarily under the Constitution the function of the Public Service Commission, the High Court cannot be said to have done it in its administrative capacity. It is difficult to accept this contention. The High Court did sift the applications of the candidates for appointment to the post of Civil Judges. The question is as to the capacity in which did it do so. The High Court, unlike a Judge, has no private capacity. Whatever is done by the High Court is done only in its public capacity. There is no warrant to limit the administrative function of the High Court to what is prescribed by rule or law. To administer means to control, manage, look after, and administrative means of the management of affairs. The High Court is very much concerned in disposing of the old cases and, therefore, in the expeditious appointment of Civil Judges for that object. The High Court as an institution, having no private capacity, sifted the applications of the candidates in its public capacity. In this connection I would make a reference to the observation of my Lord Hamoodur Rehman, J., in Sir Edward Snelson's case. He observed while holding that an attack on a Judge not connected with the judicial functions will not come within the mischief of contempt of Court as under: "But I cannot stretch this to attacks on Judges in their public capacity for, to my mind, such an attack would inevitably also be calculated to lower the authority of the Courts over which the Judges so maligned happen to be presiding and thus tend to interfere with the due course of justice and the proper administration thereof." Keeping the above observation, I would hold that the criticism was against the High Court acting in its public capacity. The attack would inevitably be calculated to lower the authority and the prestige of the Court and thus tend to bring the Court into contempt.

14. Under para. 2 (b)'of Article 123 of the Constitution all that has to be seen is whether the High Court has been scandalised or anything has been done to it to bring it into hatred, ridicule H or contempt. If the contention of the learned Advocate for the respondent is accepted para. 2 (b) should read something like this:- "Scandalises the Court in performance of its judicial function or otherwise does anything which tends to bring the Court in performance of its judicial function or a Judge of the Court into hatred, ridicule or contempt." There is no reason to put any such limitation. There is also no reason to put any limitation on the administrative function of the High Court so as to limit it to what is prescribed by rule or law. Article 123 of the Constitution should be read without any precon ceived notion. I am clearly of the view that what the High Court did in the matter of sifting the applications of the candidates for the appointment of Civil Judges was in its administrative and public capacity and, therefore, any attack on it in that connection would be a libel which would amount to contempt of Court.

15. The learned Advocate for the respondent contended that at any rate even if the High Court acted administratively, the criticism of such an act would not amount to contempt of Court. The contention was that the criticism of only a judicial act would be contempt of Court. In this connection reliance was placed on the case of Royal Acquarium v. Parkinson ((1892) 1 Q B 431). It was held in that case that London County Council while granting music and dancing licences was not a Court within the meaning of the rule by which defamatory statement made in the case of proceedings before a Court are absolutely privileged. In that case a County Councillor made a defamatory statement at a meeting with regard to a person applying for a licence. The person defamed brought an action for slander. The Councillor took the defence that the occasion was privileged. Their Lordships came to the conclusion that the occasion was not privileged as the Councillor was acting administratively and not judicially. In other words, he was acting as an executive body. The London County, Council is not a Court within the accepted term of the same. Therefore, in order that a Councillor, could claim privilege he had to show that he was acting as a Court. On the other hand, High Court is a Court whether it is acting judicially or administratively.

16. It was urged that the telegrams were sent to bring to the notice of the Chief Justice and the Chairman of the Public Service Commission mat the selection of candidates for Civil Judges was being criticised in certain quarters as it was not known as to what were the principles and rules under which this selection was being made. Tile contention was that the object in sending the telegrams was only to secure the best available persons for the judicial service of West Pakistan, and, therefore, it was not contempt of Court. There is not much force in this submission. If the object only was to find out the principles under which the selection was being made, the contents of the telegrams would have been quite different. The respondent is a senior Advocate. He must have known how to word his telegram to find out the principles under which the selection was being made. Moreover, the respondent could easily come to Lahore and see the Chief Justice about the matter. This was the least that was expected of a senior and responsible Advocate of this Court. I fail to understand how the sending of the telegrams would have helped the judicial service of West Pakistan.

17. It would appear from the written statement that one of the pleas of the respondent was that the telegram was not sent for publication in any newspaper. This would not afford any defence for contempt pf Court as the telegram would amount to publication inasmuch as it was addressed to the Chairman, Public Service Commission. The fact that the contents of the telegram were no published in any newspaper does not do any credit to the respondent. It does credit to the newspaper for not publishing the contents of the telegram. They realised that it would be contempt of Court.

18. The respondent has made an attempt to explain what he meant by imputing arbitrariness to the West Pakistan High Court in selecting candidates for the post of Civil Judges. The relevant portion is contained in para. 4 of the written statement, I would like to reproduce the same in order to show that even on the assertion of the respondent no reasonable person could say that the West Pakistan High Court was arbitrarily sifting the applications of the candidates. It runs as under: "From time to time it had become known that certain principles might be followed in this selection, but on scrutiny of names of persons reported to have been selected no principle was found to be discernible. At one time it was believed that only those persons who had appeared in the Judicial Service Examination and had qualified would be considered. At another time it was believed that persons under 35 would be considered. At yet another time it was believed that the selection by the High Court would be limited to the persons recommended by District and Sessions Judges." On an analysis of the above it would appear that the contention was that the High Court did not confine its selection to persons who had appeared in the judicial service examination and had qualified for the same or to persons only under 35 years of age, or to persons recommended by District and Sessions Judges and, therefore, it acted arbitrarily. No person, and much less a senior Advocate and a political worker of the standing of the respondent, in the circumstances which I would presently mention, could consider the selection of the candidates by the High Court as arbitrary. In this connection it would be necessary to state the policy of the Provincial Government conveyed in the Services and General Administration Department Letter No. SOXIX-3(6)/62 dated the 12th October 1962, under which the posts were to be filled on the basis of the population percentage. It runs as under: (i) Peshawar and D. I. Khan Divisions excluding Agencies, States and Tribal Areas and added and Special Areas adjoining settled districts 2 (ii) Agencies, States and Tribal Areas and added and Special Areas adjoining settled districts 2 (iii) Rawalpindi, Lahore, Sargodha, Multan and Bahawalpur Divisions 12 (iv) Khairpur and Hyderabad Divisions 3 (v) Quetta and Kalat Divisions and Lasbela District 1 (vi) Karachi Division excluding Lasbela District 1 The policy of the Government is well known and it must be in the knowledge of the respondent who is, besides being a senior Advocate, on his own showing, also a political worker. 675 applications were received from all over West Pakistan. It was possible, considering the number of applications and the Government's policy, to confine oneself in sifting the applications only to one principle. It was not possible to select only those candidates who had qualified in the Civil Services Examinations. If the High Court confined itself to that principle many districts would have gone un-represented. It was also not possible to confine oneself to the recommendation of the District Judges alone. Some of the District Judges had made no recommendations, but applications were received from those districts. Lastly, it was not possible to strictly limit the age to 35 years. So far as the question of age limit was concerned it had to be relaxed in the case of people who had qualified for P. C. S. Examination or were recommended by District and Sessions Judges.

19. The resume of the above facts would disclose that there was no arbitrariness in the selection of the candidates. If the respondent had thought over the matter dispassionately he would have realised that the said principles could not be rigidly followed without inviting severe criticism and dissatisfaction.

20. It is stated in para. 2 of the written statement that the object of the telegram was to have a statement of policy. It is strange indeed to expect a statement of policy from the High Court by scandalising it. If the object of the learned Advocate was only to acquaint himself with the policy of the High Court in the matter of the sifting of the applications he could have easily seen the Chief Justice and put before him his genuine grievances. I have no doubt that the Chief Justice would have explained the position to his satisfaction. The West Pakistan High Court, which was not acting in an arbitrary manner, could not understand as to what the respondent meant by accusing the High Court of arbitrariness in the matter of the sifting of the applications.

21. Mr. M. Anwar cited some cases in support of his con tention. These cases have no application to the circumstances of the present case. It would be useless to encumber the judgment by dealing with these individually. The principle laid down in those cases is that if a Judge is criticised for doing something in his private capacity it would not amount to contempt of Court. In this connection reliance was placed on the case of the matter of a Special Reference from the Bahama Islands ((1893) A C 138) and on the case of Debi Prasad Sharma and others v. Emperor. It is noteworthy that no case was cited in which the High Court was scandalised and it may have been held, on some ground, that it was not contempt of Court.

22. I now propose to sum up whether the imputation made to the High Court would amount to contempt of Court. In considering libellous matters certain principles are followed by the Court. One is that matter which is in its nature defamatory is presumed to be false until the contrary is shown to be the truth. Another principle is that in construing the matter alleged to be defamatory, no mitigation of its natural meaning by construction is permissible. The words must be given their full, natural an ordinary meaning as a reasonable man of ordinary prudence would be likely to understand them. They must betaken as a whole in their context and it should be clearly borne in mind that the slander and the damage consists in the apprehension of the hearer or other person to whom the libel is communicated. The meaning in which the words were intended by the author to be understood is immaterial. Again words may be on the surface innocent, but they may carry a secondary or special sense, regard being had to the occasion, to the quality of persons to whom they are addressed, and to the circumstances affecting their meaning. In such a special sense they may have a disparaging effect eve though on a plain reading no defamation appears. Therefore, to avoid the imputation of disparagement, it is clear that not on] must the words in their natural and ordinary meaning be innocent, but there should be no secondary sense imported by circumstances which would bring them within the mischief of defamation. Sir Edward Snelson's case (PLD 1961 SC 237), Keeping in view the above obser vations, I have no doubt that the imputation made to the High Court of arbitrariness in selecting the candidates for appointment to the post of Civil Judges would amount to contempt of Court within the meaning of para. (b) of Article 123 of the Constitution. It is a disparaging remark which is bound to lower the prestige an the dignity of the Court. If the Court were to act arbitrarily eve while functioning in its administrative capacity, it is bound to react upon its prestige. The remark of arbitrariness against the High Court would imply as if the High Court was acting wit ulterior motive in selecting the candidates. I have no doubt that in the eyes of those who read the telegram the High Court was lowered and brought into disrespect. I do not think that there can be any worse imputation against the High Court than to say that it acted in a certain matter arbitrarily. It is as good a saying it acted dishonestly. The word dishonestly no doubt is strong word, but arbitrary in relation to the High Court savour of ulterior motive and favouritism in selecting candidates for the post of Civil Judges.

23. The slander in this case was conveyed to the Chairman of the Public Service Commission. It was conveyed by the res pondent in the name of hundred Advocates. The respondent conveyed it in the name of hundred persons in order to impress upon the Chairman of the Public Service Commission the truth of the imputation. The learned Advocate for the respondent did not make any attempt to show that the imputation made would not have lowered the prestige and the dignity of the West Pakistan High Court in the estimation of the Chairman of the Public Service Commission. The contention was, as already mentioned, that the imputation made would not amount to contempt of Court as it was made to the High Court not in the discharge of its administrative or judicial function.

24. Before concluding the case I would like to comment on two aspects which arise from the defence of the respondent, namely:- (1) whether the respondent could be permitted to justify the imputation that he made against the Court and (2) whether the respondent should, in the circumstances of the case, have offered an unconditional apology.

25. It has been observed by My Lord the Chief Justice in Sir Edward Snelson's case that the power of initiating a prosecution confers upon the Court the power of finding, in limine, that the words constitute prima facie a libel on the Court. In the case of libel upon an individual, the individual has to satisfy the Judge in the course of the proceedings that the words that he complains of have a defamatory sense, in a motion for contempt, and the res pondent coming before the Court upon a writ is thus placed in peril to an extent which bears no comparison with that of a respondent to a libel action. Moreover, it is ordinarily a complete defence in an action for libel that the defamatory imputation is true. In a proceeding for contempt, by publishing a libel upon the Court, such a defence is not admissible. Any attempt to justify the libel is, in law, a fresh contempt. In this connection the principle laid down in the case of K. L. Gauba (A I R 1942 Lah. 411) was approved.

26. It is with some regret that I notice that the respondent did not offer an unconditional apology in the circumstances which I would presently mention and which was in his knowledge. It was observed by My Lord the Chief Justice in Sir Edward Snelson's case that "The position of the superior Courts in any civilized country is so high that a mere expression by the Court of it having taken offence to something said concerning itself is or ought to be sufficient to induce in the alleged offenders a feeling of regret that, whether wittingly or otherwise, he should have given cause for such offence." It was further observed that the extraordinary power of punishment for contempt has been made available to the Court in order to keep a blaze of glory around them and to deter people frog attempting to render them contemptible in the eye of the public. Any individual or institution who or which is conscious of this principle and adheres to it would necessarily feel that to give offence to a Court at all in a manner such that it feel it has been lowered in the eyes of people is a matter for regret and no person or institution in a State should feel himself or itself so great as to regard the offer of apology as being beneath his or it dignity." I expected during the course of the argument that the respondent would offer an unconditional apology for the imputation that he made against the High Court. I have no doubt, in the circumstances, which I would briefly mention, that the respondent knew that the disparaging remark was contemptuous of the High Court or at any rate better sense should have prevailed to offer an unconditional apology.

27. An urgent meeting of the members of the Lyal1pur Bar was requisitioned by 63 members presumably to consider the selection of the candidates for the post of Civil Judges by the High Court. The requisition notice has not been produced. The telegrams on which the notice for contempt of Court was issued are dated the 15th of April 1963. The meeting of the members of the Bar was held on the 16th April 1963. It would appear from the minutes of the meeting held on 16th April 1963, that 97 members were present. It would further appear from the minutes of the meeting that the President had emphasised in respect to the item relating to the selection of candidates for the post of Civil Judges by the High Court that no speech or resolution which may in manner tend to scandalise the Court or bring it or any Judge of the High Court into contempt will be allowed. It was pointed out by the President that the dignity and honour of the profession of the law was knit with the dignity and honour of the High Court. In that connection the President read out Article 123 of the Constitution. The respondent moved a resolution. It would appear that the resolution was amended. The resolution moved by the respondent has not been produced. It is noteworthy that the resolution was passed by a majority of only 13 votes. 42 persons voted for the resolution while 29 opposed the same. It is further noteworthy that out of 97 persons only 71 participated in the voting. The President on the 17th April 1963, tendered his resignation, the relevant portion of the letter reads as under:- "At the requisition emergent general meeting of the Bar Association held yesterday 16th April a resolution involving criticism of the High Court was passed by a majority of 42 as against 29 in spite of, disagreement and opposition as President. I consider it an expression of no confidence against me and feel obliged to tender my resignation." The respondent, after the debate of the general meeting of the Association and the protest of the President of the Association who brought Article 123 of the Constitution to the notice of the members of the Bar should have realised that the imputation that he made against the High Court was contemptuous of the High Court within the meaning of Article 123 of the Constitution. At any rate, if the respondent was not convinced after what the President of the Bar Association said at the meeting and in his letter of resignation he should have been in no manner of doubt after the notice was issued by Mr. Justice Manzur Qadir for contempt of Court that his act did amount to contempt of Court. In these circumstances he should have offered an unqualified apology.

28. The last question that requires consideration is they question of sentence. The imputation against the High Court coming from a senior member of the Bar and with no justification must be dealt with severely. The respondent having pleaded. justification, the offence becomes more serious. It is a matter of regret that the respondent did not offer an unconditional apology before Mr. Justice Manzur Qadir when he appeared before him. If he had offered an apology I have no doubt the same would have been accepted by this Court. This Court is most reluctant to take action for contempt of Court. I would, therefore, take a lenient view considering the fact that the respondent being a political worker acted on impulse having been approached by a number of Advocates in the matter of selection of the candidates by the High Court. He had no personal motive. I do not think that the respondent sent the offending telegrams in order to safeguard the interest of the son-in-law of his brother-in-law. I would sentence the appellant to a fine of Rs. 100; in default of payment of the same imprisonment till the rising of the Court. In case the respondent is not ready with the fine imposed and asks for time for payment of the same, I would grant him a week's] time for payment of the same in this Court. I would, in they circumstances of this case, make no order as to costs. J. ORTCHESON, J.-I agree. SHAKIRULLAH JAN, J.-I agree. A. H. Respondent convicted.