P L D 1969 Lahore 495 (PLP)

ANWARUL HAQ, J.‑--These proceedings by way of action ‑for contempt have arisen in the following circumstances. On ‑the 29th of April 1968 the respondent Yousaf Ali Khan, Bar‑at‑Law, practising at Lahore, instituted, as counsel for one Shah Muhammad Criminal Misc. Application No. 1934 of 1968 in the High Court under section 526 of the Code of Criminal Procedure praying for the transfer of the case State v. Muhammad Ameer and two others under sections 302/34 of the Pakistan Penal Code from the Court of Mr. Muhammad Siddique Ahmad Khan, Sessions Judge, Sahiwal, to the Sessions Court at Lahore. It was stated in this application that the accused‑respondents had murdered the son of the petitioner and that during the course of the commitment proceedings they had been granted bail by the Sessions Judge of Sahiwal on the 16th of September 1967. Thereupon the petitioner Shah Muhammad has moved an applica tion in the High Court (Cr. M. No. 4328 of 1967) for the cancellat ion of bail, but the application was dismissed. The respondents were then committed for trial to the Court of Session and once again the petitioner moved the learned Sessions Judge, Sahiwal, for the cancellation of bail, and the matter was fixed before him for the 6th of December 1967. The petitioner had engaged Mr. Yusuf Ali Khan, Bar‑at‑Law, to argue this matter, but when the case was taken up the learned Sessions Judge declined to proceed with it without giving any reasons and adjourned the hearing until the following morning. While describing this adjournment the transfer application stated that "the petitioner apprehends that the learned Sessions Judge adjourned it on the 6th of December 1967, because he wanted to show favour to the respondents for the reasons well‑known to him, as also the petitioner, and thinking that the learned counsel, who had gone from Lahore, would not stay over‑night it would be easier for him to turn down the petitioner's prayer for the cancellation of the bail of the respondents". The application then went on to add that the case was ultimately called and the petitioner noticed that the learned Sessions Judge was not taking interest in the arguments being propounded by the petitioner's counsel and was intimately in conversation with the respondents' counsel, and that the learned Sessions Judge then failed to record his reasons for rejecting the petitioner's application for cancellation of bail. Thereafter, the trial of the case was set down for the 13th of May 1968 and the petitioner moved the transfer application saying that "the petitioner has sound reasons to believe that the learned Sessions Judge will show favour to the respondents and shall find an excuse to acquit them, to the detriment of the interests of justice". The grounds of transfer were then enume rated at items (a) to (g) of Paragraph 11 of the application. As these grounds are directly relevant to the present proceedings, they may be reproduced here in full:‑ "(a) That the father and members of the family of the respondents are talking about in the village that they have made arrangements with Khan Muhammad Siddique Ahmad Khan, Sessions Judge, and that the respondents would be acquitted on the 15th May 1968. (b) That the respondents father is a wealthy man and is ins a position to pay a heavy sum of money to procure the acquittal of the respondents. (e) That it is generally known in the District of Sahiwal that the Begum of Khan Muhammad Siddique Ahmad Khan is. friendly with the Begum of Mr. Salim, counsel for the respon dents, and that if cash is paid to the former through the latter, the learned Sessions Judge honours the commitment made by his wife, (d) That the Anti‑Corruption Council of the Provincial, Government has made a reference to the High Court of West Pakistan seeking permission of the Hon'ble Chief Justice and Judges of the High Court to allow the Anti‑Corrup tion Department of West Pakistan to make inquiries into the allegations of corruption against Khan Muhammad Siddique Ahmad Khan, and that the Anti‑Corruption officials are engaged in making a probe against the learned Sessions Judge in tile Districts of Mianwali and Lyallpur, where he had been posted before coming to Sahiwal, the High Court having granted permission for the probe. (e) That it is generally said in the District that Khan. Muhammad Siddique Ahmad Khan shall never convict a many who is willing to pay him anything. (f) That the petitioner's suspicions are strengthened by thee fact that the "learned Sessions Judge did not hear his applica tion for cancellation of bail on, the 6th December 1967, although he had issued a notice for that date, and that when he heard it on the 7th December, he did not record his, reasons for his decision and that he did not make any mention of the arguments propounded by the learned counsel for the: petitioner. (g) That the order of the learned Sessions Judge was set; aside and bail of the respondents cancelled by this High Court. On 17th January 1968 (Cr. Misc. No. 5770 of 1,967)."

2. When this transfer application came up for hearing in, the High Court a report was called from the learned Sessions Judge of Sahiwal, and in the para‑wise comments furnished by him, he denied all the allegations and stated that the reason why he did not proceed with the hearing of the cancellation of bail application on the 6th of December 1967 was that on the morning of that day Mr. Yusuf Ali Khan, Bar‑at‑Law, came to‑call on him, in his retiring room and on inquiry from the Sessions Judge he mentioned that he had to appear in his Court in connection with an application for cancellation of bail in a murder case and that he would produce an authority on the point that bail must be refused once "the case is committed to the Court of Session. The learned Sessions Judge stated in his comments that he did note consider it proper on the part of Mr. Yousaf Ali Khan to see him, in his retiring room at that time; however, he told the learned counsel that he could produce any authority he liked at the time of arguments in the Court, When the case came up for hearing the Sessions Judge felt embarrassed in proceeding with it as he thought that all persons standing outside the Court must have seen Mr. Yusuf Ali Khan entering and leaving the retiring room of the Judge. In these circumstances, he adjourned the hearing of the cancellation of bail application to the next day, making a brief order to that effect on the relevant file.

3. The transfer application came up for hearing before Mr. Justice M. Jamil Asghar on the 16th of May 1968 and he passed the following order thereon:‑ "Report of the learned Sessions Judge has been perused. It is mentioned therein that Mr. Yousuf Ali Khan, learned counsel for the petitioner, went to the learned Sessions Judge and in his retiring room informed him that he had to appear in his Court in connection with the application for cancellation of bail in a murder case, and that he would produce an authority on the point that the bail must be refused, if the accused is committed to the Court of Session. Mr. Yusuf Ali Khan admitted that he did go and visit the learned Sessions Judge in his retiring room, but stated that he had only gone there to pay his respects. The conduct of Mr. Yusuf Ali Khan in going to the retiring room of the learned Sessions Judge and talking to him about the case in which he had to appear before him on that very day was most improper. He had placed the learned Sessions Judge in a most awkward position. Under these circumstances, I dismiss this application for transfer in limine, but I leave it to the discretion of the learned Sessions Judge to transfer the case to one of his Additional Sessions Judges if he considers that he will not be able to judge the case from an unbiased mind."

4. On the 29th of May 1968 Mr. Muhammad Siddique Ahmad Khan, the Sessions Judge of Sahiwal, addressed a letter to the Registrar of this Court protesting that the allegations made against him in the transfer application bearing Cr. M. No. 1934 of 1968, Shah Muhammad v. Muhammad Ameer etc., were baseless, and scandalous and he, therefore, sought the protection of the High Court against "the contemptuous and defamatory remarks made by Mr. Yousaf Ali Khan", and further requested that the Bar Council might be approached to take suitable action against the lawyer concerned.

5. The matter was placed before Mr. Justice M. Jamil Asghar and by his order dated the 17th of June 1968 he directed that a notice should issue to the Advocate to show cause why action should not be taken against him under Article 123 of the Constitution for maliciously maligning the subordinate Court.

6. In reply to the show‑cause notice the respondent submitted a written statement on the 19th of September 1968 in which the stand taken up is that "the respondent had drafted the application on the express instructions of the petitioner Shah Muhammad and with no intention of making any attack on the honesty or integrity of the learned Sessions Judge, Sahiwal, or to offend against the dignity of the Court or to bring the administration of justice into disrespect. In English law a statement made in judicial proceedings by an advocate, the parties and witnesses are covered by Absolute Privilege, and no proceedings can be taken thereon either in an action for defamation or for contempt of Court". He has then referred to certain observations in an English case and gone on to state that "that being the case in England, where the respondent got his education, the respondent could hardly imagine that by drafting a petition on the express instructions of the client he would receive notice for contempt. But the legal position seems to be somewhat different at home".

7. In paragraph 4 of the written statement the respondent has given his version of the visit he paid to the learned Sessions Judge in the latter's retiring room. He has described it as a courtesy call and has added that this was not the first occasion that he had done so, as he had even previously paid a courtesy call to the same learned Sessions Judge when the latter was posted at Mianwali in May 1967. He has denied that he talked to the learned Sessions Judge about the cancellation of bail application, and has stated that he merely mentioned it in answer to the Sessions Judge's query as to how the respondent had come to Sahiwal.

8. The respondent has then pointed out that subsequently the Sessions case in question, i.e. State v. Muhammad Ameer and two others (P L D 1961 S C 237), has been transferred to another Court by an order passed by Mr. Justice M. Jamil Asghar on the 13th of September 1.968 in Cr. Misc. No. 3378 of 1968 filed by the same complainant Shah Muhammad. The written statement concludes by making a reference to certain observations made by his Lordship the Chief Justice of Pakistan in Sir Edward Snelson v. Judges of the High Court of Pakistan and another (P L D 1964 Lah. 661) and reiterated in Mir Abdul Qaiyum's case, and saying that "the respondent holds the Court in the highest esteem and the respondent, therefore, offers an unconditional apology to the Court for anything done by him which the Court has thought fit to take exception to".

9. A perusal of the grounds urged in the transfer application presented by the respondent on behalf of his client Shah Muhammad is enough to show that allegations of the gravest nature had been made against the integrity and impartiality of the learned Sessions Judge of Sahiwal, not only with regard to the particular case with which Shah Muhammad was concerned, but generally with regard to all cases coming up before the Judge. Not content with maligning the Sessions Judge alone even the fair name of his wife was dragged into suggest that she was receiving bribes on behalf of her husband through a lady friend. There can be no doubt that these allegations constitute the grossest form of scandalisation of the Court and must indeed be visited with severe punishment.

10. However, it was submitted by the respondent that he was under the impression that he was protected by "Absolute Privilege" as he was acting on the instructions of his client. He stated that he was labouring under this belief as he had obtained his legal education in England, where this principle was well established with reference to the case of Munster v. Lamb ((18832 Q B D 588) We find, however, that the case in question deals with a different situation altogether. In that case Lamb, a Solicitor, while appearing as defence counsel for an accused person, charged with administering drugs to the inmates of the complainant's house in order to facilitate the commission of a burglary, suggested during the trial that the narcotics might have been brought to the house by the complainant, i.e., Munster himself, with the intention of using it for some immoral or criminal purpose. Subsequent to the trial Munster brought an action against Lamb for defamation, and it was held that "no action will lie against an Advocate for defamatory words spoken with reference to, and in the course of an inquiry before a judicial tribunal although they are uttered by the Advocate maliciously and not with the object of supporting the case of his client, and are uttered without any justification or even excuse and from personal ill‑will or anger towards the person defamed arising out of a previously existing cause, and are irrelevant to every issue of fact which is contested before the tribunal". During the course of the judgment it was also observed by Brett, M. R. that "a counsel's position is one of the utmost difficulty. He is not to speak if that which he knows: he is not called upon to consider, whether the facts with which he is dealing are true or false. 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. If amidst the difficulties he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform. Far, more than a Judge, infinitely more than a witness he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a Judge or a witness. The reasons of the rule is that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him".

11. It will be seen that, in the first place, there was no ques tion of contempt in this case; and secondly privilege from action for defamation or libel was claimed and granted with regard to what was said by the counsel during the course of arguments at the trial, in respect of the complainant who was perhaps a witness. In Pakistan the law with regard to the cross‑examination of witnesses and the propriety of questions which can be put to them is contained in sections 149 and 150 of the Evidence Act and section 150 provides that if any objectionable or offensive question is asked by any Barrister, pleader vakil or attorney, the 8 trial Court is to report the circumstances of the case to the High Court or other authority to which such Barrister, pleader, vakil or attorney is subject in the exercise of his profession. This would show that the privilege which was accorded to the counsel in Munster v. Lamb is not available in Pakistan. It is clear, therefore, that this case is no authority for the proposition that a counsel is protected even when he scandalises the just because he is purporting to act on the instructions of his client.

12. On the contrary, it was held by Cockburn C J. in Ex parte: Pater ((1911) 5B & S 299) that a Barrister may be punished for contempt of Court even for language professedly used in the discharge of his functions as Advocate. That was a case where the counsel for the prisoner had uttered words which reflected upon the foreman of the jury, and being required by the Judge to withdraw them refused, and was thereupon adjudged guilty of contempt and fined. This action of the Judge of the Quarter Sessions was upheld by the Queen's Bench Division. This case clearly indicates that where the question of the dignity of the Court is concerned, no such Privilege is available to the counsel even in England as has been claimed by the respondent on the ground that he had his legal education in that country.

13. There is no lack of authority for the proposition that scandalisation of the Court in transfer applications or otherwise'' has always been held to the grossest form of contempt, We may make particular reference to In re: Babu Divarka Prasad Mithal, Vakil, Muzaffarnagar (A I R 1924 All. 253), In re: S. Mukhtar, Madhe pura (A I R 192 Pat. 151), In re: Sham Lal, Advocate, H. C. Lahore (A I R 1932 Lah. 502), In re: Dr. K. S. Choudhry, Advocate (P L D 1953 Lah. 244), M. Y. Shareef and another v. Hon'ble Judges of the Nagpur High Court and others (A I R 1955 S C 19) and Swarnayi Panigrahi v. S. Nayak and others (A I R 1959 Orrisa 89). In all these cases it has been held that the counsel's privilege does not extend to stating his instructions when these instructions involve; an attack on the dignity of the Court, and that members of the legal profession are under no duty to their clients to make scurrilous charges either against Judges or the opposite‑party on the mere wish of their clients. It has been repeatedly emphasised that they are agents, not of the man who pays them, but are acting in the administration of justice, and in matters of making, applications to Court they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility. If they fail to act with reasonable care and caution, they are unfit to enjoy the privileges conferred upon them by law, and serious breaches must be visited with punishment.

14. We consider that it would be extremely useful if we were to reproduce here the very weighty observations trade by the Indian Supreme Court in the case of M. Y. Shareef and others, with which we are in respectful agreement:‑ "There was considerable misconception amongst a Section of the Bar about Advocates' responsibilities in matters of signing transfer applications from one Bench to another Bench of the High Court. A Section of the Bar was under an erroneous impression that when a counsel is acting in the interests of his client or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalising the Court. They thought that when there was conflict between their obligations to the Court and their duty to the client, the latter prevailed. This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that counsel who sign applications or pleadings containing matter scandalising the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefore, with a view to prevent or delay the course of justice, are themselves guilty of `contempt of Court, and that it is no duty of a counsel to his client to take any interest in such applications: on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications'.

15. Now, the question is whether it can be said that the respondent took steps to verify the truth of the allegations which were made by his client against the integrity and impartiality of the learned Sessions Judge of Sahiwal, and which the respon dent embodied in the offending transfer application presented by him in the High Court. The respondent has not said anything about this aspect of the matter either in his written statement or in his oral arguments before us, except to assert that the respon dent took care to translate the petition into the language which the petitioner understood twice before taking him to the Oath Commissioner where his affidavit had to be sworn. The respondent personally requested the Oath Commissioner to translate the contents of the affidavit and explain them to the deponent thoroughly, and the Oath Commissioner did it as is apparent from his note on the affidavit. It would be desirable that the petitioner, Shah Muhammad in called upon to prove the allegations made by him against the learned Sessions Judge, Sahiwal (Pare. 3 of the written statement). This assertion clearly shows that the respondent had not taken any steps to verify the truthfulness or otherwise of the allegations made by the petitioner Shah Muhammad against the Sessions Judge, and the only precaution which he took was to see that the allegations were faithfully translated into English. In any case, the respondent could hardly have pleaded even a prima facie verification of these allegations in view of their extremely sweeping and general nature. They have been recklessly made and repeated in the various grounds of transfer as given in items (a) to (f) of paragraph 11 of the application and as reproduced by us earlier in paragraph 1 of this judgment. All these grounds are Cull of malicious attacks of a general nature on the reputation and integrity of the trial Court. It is thus clear that even though the respondent may have acted upon the instructions of his client, yet tae cannot be said to have acted in a bona fide and diligent manner so as to be able to claim any privilege whatsoever.

16. There is yet another aspect‑of the matter which needs to be noticed it this context. The opening paragraphs of the transfer application presented by the respondent clearly give the impression that his personal annoyance with the learned Sessions Judge played no mean part in the matter. The respondent had specially gone from Lahore to Sahiwal to argue the cancellation of bail application, but the learned Sessions Judge adjourned the hearing on the first day, and dismissed the application on the next day. Thus the respondent was obliged to stay over at Sahiwal only to see the application dismissed. The complaint made in the transfer application that during the hearing the learned Sessions Judge did not take any interest "in the argument propounded by the petitioner's counsel and was intimately to conversation with" the opposing counsel does not appear to us to be the result of the personal observation of an illiterate client, although the same is attributed to him. In these circumstance the respondent, even though ostensibly acting as an agent of big client, was only too willing to scandalize the Court to satisfy his, own vanity and sense of frustration and resentment.

17. Some argument was raised before us by Mr. Jamil Hussain Rizvi, appearing for the respondent, to the effect that the statement made by the learned Sessions Judge of Sahiwal, in his para‑wise comments furnished to this Court in connection with the transfer application, regarding the visit of the respondent to the retiring room of the Judge could not be accepted as it was made only after the transfer application had: been filed, and the Judge had not complained earlier to the High Court on this, account, we consider that this matter is hardly relevant to the main question arising before us. The respondent is not being proceeded against for visiting the trial Judge in his chambers and trying to talk about the cancellation of bail application which he had to argue before the learned Judge that very morning. Those facts have been revealed by the learned Sessions Judge in order to explain why he adjourned the hearing of the application to the next day. He has stated that he felt embarrassed in proceeding with the application as he thought that people must have seen the respondent entering and leaving his chambers shortly before the hearing of the application. On the view that we take of this matter, is not necessary to pursue the point any further:

18. The position, thereof, which emerges is that the respondent must clearly be held guilty of the grossest form of contempt as he has indulged in reckless scandalisation of the trial Court by making wild allegations of corruption against the presiding Judge, without taking the trouble of satisfying himself by proper inquiry and diligence that the allegations were in fact sustainable. It was no part of his duty as counsel to, incorporate these allegations in the transfer application in the manner in which he did, even though they had been made to him by his client. By making such grave allegation's the respondent has undoubtedly done everything in his power to undermine public confidence in the administration of justice, although as a member of the Bar his duty clearly lay in the other direction.

19. We now proceed to consider whether this is a case in which we should accept the apology offered by the respondent in the closing part of his written statement, and also at the Bar through Mr. Jamil Hussain Rizvi: We find that the apology, although described as unconditional, can hardly be regarded as such in view of the language in which it has been offered. It is stated in the concluding portion of paragraph 5 of the written statement:‑ "Although the respondent has not committed any offence the observations of his Lordship, the Chief Justice of Pakistan, Lahore, are before the respondent and read, `The position of the superior courts in any civilized country is so high that a mere expression by the Court of its having taken offence to something said concerning itself is or ought to be sufficient to induce in the alleged offender a feeling of regret that, whether wittingly or otherwise, he should have given cause for such offence'. After quoting these observations, in Mir Abdul Qaiyum's case, of his Lordship the Chief Justice of Pakistan, their Lordships of the High Court regretted that Mir Abdul Qaiyum had not offered an unconditional apology. The respondent holds the Court in the highest esteem. The respon dent, therefore, offers an unconditional apology to the Court for anything done by him which the Court has thought fit to take exception to."

20. It will be seen that throughout there is an attempt a justification, but it is well‑settled that there cannot be both justification and apology, as the two are mutually incompatible. In any case, mere apology is not enough. Besides, the Court has to consider the background in the light of the facts both antecedent to the offer of apology as also the contemners subsequent conduct right up to the contempt proceedings. In the present case, the respondent has offered the apology only because he feels that it is the right thing to do in view of certain observations made by his Lordship the Chief Justice of Pakistan in a previously decided case. The apology in these circumstance cannot be regarded as evidence of real contrition.

21. On the question of sentence we consider that it has to be borne in mind that it is the duty of the High Court to protect the subordinate Courts from such wanton and reckless attacks on their integrity and dignity, and this is necessary not for ..the sake of the individual officers who preside over these Courts, but for the sake of preserving public confidence in the impartiality and integrity of the administration of justice at all levels. The respondent accordingly deserves exemplary punishment. Keeping all these factors in view, we would sentence the respondent to undergo simple imprisonment for one month and to pay a fine of Rs. 1,

000. In default of payment of fine, the respondent shall undergo further simple imprisonment for a period of one month. The sentence of imprisonment shall run concurrently with that imposed on the respondent in the connected case (Cr. O. 205 of 1968).

22. The sentences are suspended until and including the 15th of January 1969 so as to enable the respondent to file an. appeal in the Supreme Court, if he so desires, and to obtain necessary orders in this behalf. If no orders are obtained by the respondent by that date, then the sentence shall be implemented.

23. The proceedings in this case as well as in the connected case have revealed a serious mental defect in the respondent having a direct bearing on his fitness to continue to act as an Advocate of this Court, and accordingly a copy of the orders in both these cases shall be sent to the West Pakistan Bar Council for necessary action to consider, in the interest of the litigant public, whether the respondent is a fit person to continue on their rolls as an Advocate. K. B. A. Conviction recorded.