1969 PLP 369 (SCMR)

Mahmud Ali, Advocate Supreme Court instructed by G. S. Gideon, Attorney for Appellant. Mushtaq Ahmad, Advocate‑General West Pakistan (Nasim Hasan Shah, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State. Date of hearing : 3rd November 1958. S. A. RAHMAN, J.‑Ikramullah who was serving as a First Inspection Muharrir attached to the Court of the Sessions Judge, Peshawar, was convicted of contempt of the Court of his own superior officer, by a learned Judge of the West Pakistan High Court, Peshawar Bench. The learned Judge himself granted e, certificate for an appeal to this Court. The facts are simple and may be briefly summed up as follows:‑‑ The appellant was alleged to have refused to receive certain papers sent by a lawyer Magistrate to the Court of the Sessions Judge, in connection with a petition pending in the latter's Court. On the facts being brought to the notice of the learned Sessions Judge, he proceeded to censure the appellant and directed that he should be transferred to the Court of a Sub‑Judge. On hearing this order pronounced, the appellant is said to have become rude and to have exclaimed that he was being punished for no fault of his, simply because the Lawyer Magistrate who had complained against him, was related to the Chief Justice of West Pakistan. The appellant was reprimanded by the Sessions Judge and ordered to go out. It is stated that even thereafter he went on voicing his resentment in a loud tone in the verandah of the Court room for sometime. The Sessions Judge, therefore, charge‑sheeted him for insubordination and rude behaviour and also reported his conduct on the telephone to the Additional Registrar of the West Pakistan High Court, Peshawar Bench. Later he submitted a full report of the incident to the Additional Registrar, which was put up before the Senior Judge of the Peshawar Bench, who ordered the issue of a contempt notice to the appellant. During the hearing in the High Court, Ikramullah submitted in writing that he had neither defied the Sessions Judge nor had he misbehaved in his Court but in the end he tendered an unqualified and humble apology to the High Court as well as to the Sessions Judge and threw himself at the mercy of the Court. On this, the learned Senior Judge, Peshawar Bench, proceeded to convict the appellant of contempt, purporting to act under section 3 of the North‑West Frontier Province Contempt of Courts Act IV of 1938, and sentenced him to one month's simple imprisonment together with a fine of Rs. 100 or, in default of payment of the fine, to 15 days simple imprisonment further. The appellant was enlarged on bail by the learned Judge himself after he had granted him a certificate for appeal to this Court. After hearing Mr. Mahmud Ali on behalf of the appellant and the learned Advocate‑General on behalf of the State, we have reached the conclusion that this was not a case of contempt of Court at all. It is apparent that the learned Sessions Judge was not sitting as a Court and was not engaged in any judicial proceeding at the time that the incident happened. He was clearly acting in his administrative capacity when the appellant is said to have adopted a rude attitude towards him. Whatever disciplinary action the appellant may have invited by his conduct, under the departmental rules governing his service, there was no question of any attempt on his part to divert the course of justice in any judicial proceeding or to disturb a judicial officer while engaged in the performance of his duties, as such. Perhaps the attribution of an ulterior motive to the Sessions Judge for the order of censure passed by him against the appellant, was construed as scandalising that judicial officer by the High Court.‑ As was pointed out by the Privy Council Debi Prasad Sharma v. The King‑Emperor (70 I A 216), the cases of contempt which consists of scandalizing the Court itself, are fortunately rare and require to be treated with much discretion. Even if such a case occurs, the weapon of contempt, in the words of the Privy Council "is to be used sparingly and always with reference to the administration of justice". No such question arose in the present case, in our opinion. It must be said in fairness to the learned Judge whose order is under appeal that the written statement on behalf of the appellant contained inconsistent submissions inasmuch as on the one hand the commission of any contempt was denied and on the other, and unqualified apology was tendered to the Court. It was only after orders had been pronounced by the learned Judge that the appellant came out with the assertion that there was no intention on his part to confess to the offence of contempt of Court. He explained then that he had merely tendered an apology "out of deference to the dignity of the Court". This kind of mixed pleading may have given an erroneous impression to the learned Judge that the appellant was owning up his guilt and, therefore, apparently, he did not consider the question whether the circumstances would in fact establish the offence of contempt of Court. Incidentally, it may be pointed out that the reference made by the learned Judge to the North‑West Frontier Province Contempt of Courts Act, 1938, was inapt. The Judicial Commissioner's Court stands abolished and the Peshawar Bench is now a part of the West Pakistan High Court. The relevant statute would be the Contempt of Courts Act XII of 1926, which deals with the subject of the powers of a High Court to punish contempts of Courts. Subsection (3) of section 2 of that Act declares that no High Court shall take cognizance of a contempt, alleged to have been committed in respect of a Court subordinate to it, where such contempt is an offence punishable under the Pakistan Penal Code. The conduct imputed to the appellant, it might have been argued, fell within the purview of section 228, P. P. C. provided it could be said that the learned Sessions Judge was sitting, at the relevant time, in a judicial proceeding. But the High Court's jurisdiction would have been barred for proceeding in contempt in that case. As observed above, however, it appears to us to be plain that there was no question of a judicial proceeding being afoot at the material time. The appeal is allowed and the conviction and sentence of the appellant are set aside. The fine, if paid by him, will be refunded to the appellant. Appeal accepted.