P L D 1971 Supreme Court 508 (PLP)

Notwithstanding, this, the petitioner on the 15th of April 1971, again filed another petition to the same effect objecting to our learned brother hearing the review petitions. Then after notice was issued to him of the hearing of the review petitions he applied by letter addressed to the Assistant Registrar of this Court for an adjournment of the case on the ground that he intended to engage Mr. M. Anwar, Barrister -at-Law, to argue the review petitions. The adjournment was refused by me on the ground that since Mr. Anwar did not A appear at the hearing of the appeal he could not appear in the review as of right. He could only do so with the permission of the Court. The petitioner has renewed his prayer for adjournment before us again but since no such application for permitting Mr. Anwar to appear has been filed nor does the letter disclose that Mr. Anwar has, in fact, been briefed we see no justification for the adjournment. In any event if the petitioner, who is himself a Barrister-at-law, considered himself competent to argue his appeals in person we see no reason why he cannot argue his review applications as well. As regards his objection to our learned brother Mr. Justice Sajjad Ahmad Jan, hearing the review we have heard him and considered his grounds. His objection is based on the ground that in another matter, namely, Criminal Original No.204 of 1968, our learned brother had in his capacity as the Senior Puisne Judge of the High Court of West Pakistan directed the insurance of a notice to the petitioner to show cause as to why he should not be committed for contempt but later seat a note to the Chief Justice of the High Court saying : "I am very deeply hurt by the attitude of Mr. Yusuf Ali Khan and for that reason I do not wish to do that case myself." That case, namely, Cr. Original No. 204 of 1968, was then heard by another Division Bench of the High Court which accepted the apology tendered by the petitioner in that case and discharged the notice. The contention of the petitioner is that the apology in that case was accepted by the High Court, even though it was couched in exactly the same terms as the apology in the cases from which appeals were preferred in this Court. The order of the High Court in that case, however, discloses that the petitioner had in the said case in his reply given only "a narration of the events from his angle and ended up with offering an unconditional apology to the Court for anything done by him which the Court thought it fit to take exception to." Be that as it may, it will be sufficient to point out that our learned brother did not hear the said Criminal Original No. 204 of 1968 nor passed any order therein apart from directing the issuance of the show-cause notice. This objection was also not taken at the hearing of the appeal. In the circumstances, the fact that our learned brother merely directed the issuance of a notice for showing cause in a different matter can by no means be regarded as sufficient to disqualify him from hearing the appeals out of which these reviews arise or the reviews them selves. The petitioner has relied on the first paragraph of Article 4 of the Code of Conduct prepared for Judges of superior Courts and has contended that by reason of the fact that such a notice had been issued by our learned brother he had become personally interested in all causes of the petitioner and was, therefore, disqualified from hearing any case in which the petitioner was a party. This paragraph of Article 4 reads as follows :- "A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends." This deals with the personal interest of a Judge or of his near relatives or close friends in the subject-matter of the litigation or in the litigants themselves and can have no application what soever to a case in which a Judge has passed an order merely for initiating proceedings against a litigant. He has no personal interest in such an order made in the course of administration of justice for initiating legal proceedings. It would be preposterous to suggest that because a Judge has passed an order for the issuance of a notice for the committal of a particular person for contempt, he becomes, personally interested in the matter. If this be so, then no case can be heard by a Judge who has himself issued a notice to show cause. In a case for committal for contempt when a Judge issues notice he does not seek to vindicate any personal interest but the general administration of justice, which is a public concern. The purpose of a proceeding, in contempt is to preserve the confidence of the public in the Court and not the protection of individual Judges. No personal interest is therefore, involved. This objection is wholly baseless and is, accordingly, rejected. Coming now to the merits of the other grounds urged I have, in the first place, to point out that my minutes do not disclose that the new ground now sought to be included in Review Petition No. 8 of 1970 was urged at the hearing of the appeals nor do I have any recollection of this fact. This ground cannot also be allowed to be added without a certificate of a Senior Advocate. The whole object of requiring a review petition C to be supported by a certificate of a Senior Advocate is to ensure that the review is being sought on a justifiable ground. Rule 4 of Order XXVI of the Rules of this Court requires the Senior Advocate granting the certificate to "specify in brief the points upon which the prayer for review is based". In the present case, as already pointed out, this ground is not included in the certificate granted by the learned Senior Advocate. If the petitioner had really urged this ground at the time of the hearing of the appeals he would have ensured its inclusion in the grounds of his review petition and in the certificate. This ground reads as follows :- "(h) That the case State v. Muhammad Amir and others had been transferred subsequently by the learned Mr. Justice M. Jamil Asghar by his Lordship's order dated the 13th September 1968, in Criminal Miscellenous No. 3378 of 1968, filed by the same Shah Muhammad. A copy of that petition which verbatim contains all the grounds which are the subject matter of contempt, is at Annexure `D'. No contempt notice has been issued on that." Ex facie this has reference to something done by another learned Judge in another case. In the circumstances, what the High Court did or did not do in another case could hardly have had any bearing on the decision of the appeals from judgments of another Bench of the High Court in other matters. This ground, even if it was urged, would, therefore, have made no difference at all to the decision of the appeals before us. It was for the learned Judge or Judges hearing the matter to decide whether he or they would issue a notice for contempt or not. If one Bench does not do so that cannot be a bar to another Bench of the same High Court taking a different view. What this Court was concerned with in the appeals before it was whether the view taken by the High Court in the said appeals was justified or not. Therefore, even assuming, but not admitting, that the point though urged before this Court was not noticed, it cannot i be a valid ground for review, for it would not have affected the decision of this Court one way or the other. The judgments under appeal in this Court were delivered by a Division Bench which was not bound to follow the decision of a learned Single Judge. The next ground urged in support of the these review petitions is that this Court would have remanded the appeals to the High Court to consider whether the apologies tendered should be accepted or not if it had been noticed in another matter, namely, Criminal Original No. 204 of 1968 (The State v. Yusuf Ali Khan) the High Court had accepted an apology worded in indentical language. As has already been pointed out, it is not correct to say that the apology in that case was identically worded, for as stated by the High Court in its order in that case the reply filed by the petitioner only contained a "narration of the events from his angle", whereas in the present case the reasons which the High Court gave for not accepting the apology was as follows :- "When we examined this written statement we found that this was hardly the kind of apology which could be accepted in a case like the present. it will be seen that the respondent has tried to justify his action in writing the objectionable letter by asserting that the facts had been truly and sincerely stated therein. There cannot be both justification and apology, for, the two are mutually incompatible. Further there is no evidence of contriteness on the part of the respon dent and the apology tendered by him, although termed unconditional, was merely in name, as he felt obliged to tender the same in view of certain observations made in a certain case by his Lordship the Chief Justice of Pakistan, and not because he was really repentant for the insult which he had offered to the dignity of the Court." This is not all. It appears from the High Court's order that when this was pointed out to the learned Advocate appearing for the petitioner before the High Court he took time to consider whether the petitioner would like to amend his written statement but subsequently the Court was informed that the respondent (now petitioner before us) had decided not to make any alteration in the form of the apology tendered by him. This will be sufficient to show that there was marked difference between the two cases. The position was, by no means, identical, because, in the case under consideration the petitioner also displayed contumacy by not availing of the opportunity given to amend the written statement. In any event, as was pointed out in the case of Israr Hussain v. Crown (P L D 1954 F C 313) it was not for this Court to say whether an apology should be accepted by the High Court or not. That was a matter untirely in the discretion of the High Court. All that this Court was concerned with was to see whether the High Court had given cogent reasons for not accepting the apology. We were not at the time of the hearing of the appeal, and are not now, in a position to say that the reasons given by the High Court were not cogent or substantial. In any event, what the High Court did in another case was, in no way relevant to the question before this Court. This Court was not concerned in these appeals w:t wh~:t the High Court had done in another case ie. wholly different circumstances- The petitioner also complained that this Court had not j noticed the decision in the case of Abdul Hayee Khan v. State (1969 S C M R 412=1969 P Cr. L J 942), which was cited by him, but he was unable to show us as to how that was relevant in the facts of this case. That decision was given in an appeal by special leave which was ultimately treated as an application for expunction of certain remarks made by the High Court in its judgment in a reference under sec tion 438, Cr. P. C. against the Magistrate whose order had been referred to the High Court for quashment. There is nothing in that judgment which has any relevance to the questions arising in the appeals before this Court. There can be no doubt that for this reason no reference was made to it in the judgment of this Court. This Court is not, in any event, bound to refer to every judgment cited at the Bar nor can the fact that it has not done so be a ground for reviewing a decision of this Court, particularly, where the decision has no relevance at all. Lastly, the petitioner urged that certain observations in the concluding portion of the judgment, regarding expunction of cer tain remarks made by the High Court against the petitioner, were standing in the way of his getting the reference made to the Bar Council, by the High Court, withdrawn. This Court found that the remarks made by the High Court were, in no way, irrelevant or extraneous to the matter that was being considered by it and added the following observations :- "Indeed the irresponsible conduct of the appellant does cast a serious doubt upon his suitability to function as a member of the Bar." The petitioner states that when his case was taken up by the Bar Council as directed by the High Court the members of the Committee were inclined to refer his case back to the High Court but felt hesitant in doing so in view of this observation in the judgment of this Court. This Court made the observations complained of after due consideration of the facts and circum stances of this case and sees no reason to alter its opinion, but it cannot be said that by making this observation this Court has debarred the Bar Council to make a reference to the High Court concerned if it is for other reasons so minded. The reference to the Bar Council by the High Court was in the nature of a punishment imposed by the High Court. It is, therefore, open to the High Court to remit or reduce this punishment if it so considers fit. As was pointed out by thin Court in the case of Israr Hussain, the fact that the High Court has become functus officio in the matter of conviction for contempt does not debar it from still remitting the punishment. The ground too, therefore, cannot furnish the petitioner with any justification for the .review of the judgment of this Court. The right of review granted by Article 62 of the Constitution of 1962 is subject not only to the provisions of any Act of the Central Legislature but also to the provisions of any rules made by this Court and the Rules of this Court specifically provide by Order XXVI that "subject to the law and practice of the Court, the Court may review its judgment or order in a civil pro ceeding on grounds similar to those mentioned in Order XLVII; rule 1 of the Code and in a criminal proceeding on the ground O an error apparent on the face of the record." None of the grounds urged by the petitioner come within the ambit of this rule. No valid ground has, therefore, been made out for the review, of the judgment of this Court. These are all the points urged by the petitioner in support of his review petitions. Since we have found no substance in any one of them, both these petitions are dismissed. K. B. A. Petitions dismissed