P L D 1964 (W (PLP)

ORTCHESON, J.‑The facts leading up to these proceedings are that in connection with a departmental inquiry against him Mr. Mohsin Tirmizey, then District and Sessions Judge, Dera Ghazi Khan, (hereinafter referred to as the respondent) wrote the following letter to the Chief Secretary to Government, West Pakistan Lahore:

"Dear Sir, I write this to acknowledge receipt of your No. S. O. III‑12‑3 -(63?) dated 1st January 1964. (2) I have set apart a fortnight in February, from 2nd to 15th, for the purpose of writing my case re the proposed enquiry. (3) This period I hope will be treated as on duty. I request for permission to proceed for at least ten days to Lahore where I can without embarrassment dictate the necessary notes to a trustworthy stenographer. (4) For this purpose I require copies of the correspondence which passed between you and the High Court office on the subjects of (i) my continuance in service beyond 5th May 1963 ; (ii) proposal for my transfer from Rawalpindi where I had done barely 15 out of the normal 36 months, to the distant Dera Ghazi Khan at the height of its mid‑summer hot season ; (iii) proposal for holding inquiry against me,‑ both proposals emerging after the proposal to turn me out before superannuation at 60 fell through ; (iv) proposal to appoint one of themselves as Enquiry Officer. (5) I have faith that these essentially relevant documents will not be denied to an officer of outstanding record of honest and brilliant service, who has now to defend himself against mean machinations and malicious prosecution. I pray that this Government of strong and just rulers will not be a party to the unworthy attempt at wreaking private vengeance through public offices. I invoke the protection of State's aceptre of sovereign authority against all evil designers, howsoever high. Yours Sincerely, (Sd.) Mohsin Tirmizey, DAS, Judge."

2. The above letter was forwarded to this Court, perhaps for onward transmission to the Enquiry Officer. As paragraph 5 was considered by his Lordship the Chief Justice to contain matter calculated to scandalise and lower this Court in the eyes of those who had read the letter and to undermine its authority, notice was issued to the respondent to appear aid show cause why he should not be punished under the Contempt of Courts Act (XII of 1926).

3. In reply to the notice the respondent filed, through Mr. A. K. Brohi, Advocate, a written statement in which he professes as a citizen to hold this Court in great esteem and, as a legal practitioner and later as a judicial officer, to have always endeavoured to uphold its authority. It is denied that paragraph 5 of the letter in dispute contains any contemptuous matter, and the following points are raised :‑ "(i) The holding of an enquiry is an administrative function and the judicial aspect of the functions of this High Court is not involved in those proceedings. When an authority decides to recommend a departmental enquiry that decision is not arrived at after hearing the parties and, therefore, such an action is not judicial in any sense. Any comment made with reference to such an action whether of the High Court or of the Government of West Pakistan cannot be construed as contempt because the High (Court?) is concerned only when the alleged contemnor is guilty of disparaging the authority or scandalising (sic) the High Court in regard to its competence with regard to the administration of justice. (ii) That the letter in question is in the nature of a petition to the relevant executive authority to grant copies of certain documents which the respondent is advised are essential. The defence that the proceedings have been commenced out of malice is an open issue which is to be decided in the depart mental proceedings which has (sic) been entrusted to one of the Judges of this Honourable Court. Any determination by a Full Bench of this Court per contra is likely to affect the course of the departmental proceedings. (iii) That para. 5 of the letter on the face of it has not referred to the High Court. From the words used on the subject it is not possible to reach the conclusion that there is any attempt to scandalise the High Court."

4. Dealing first with the second of the above points, I am of the opinion that the question now at issue, namely, whether the respondent has scandalised this Court, has no bearing whatever on the departmental inquiry pending against the respond ent. In the present proceedings it is not necessary to determine whether in fact the inquiry was, as the respondent alleges, "commenced out of malice", it being well‑settled that a plea of justification cannot be raised in answer to a contempt.

5. As to the third point, if the respondent means no more than that this Court is not explicitly referred to in the impugned paragraph, he is merely stating what is self‑evident. If, on the other hand, he intends to convey that the reference to "mean machinations and malicious prosecution" and "evil designers howsoever high" is not aimed at this Court, the contention cannot be accepted. The letter, taken as a whole, leaves no doubt that the respondent was referring to this Court.

6. Mr. Brohi argues that even if the references to which objection has been taken are to the High Court, they do not constitute contempt for the reason that no judicial action of the Court is being called in question. In other words, he contends that contempt can only be committed in relation to a judicial function of a High Court and not in relation to anything done by the said Court in its administrative capacity. This contention is also, in my view, untenable.

7. The most explicit authority for the proposition that contempt can be committed in relation to an administrative act of a High Court is The State v. S. W. Lakitullah (P L D 1959 Dacca 84). In paragraph 6 of their judgment the learned Judges observed "We think that at this stage it would be appropriate to point out lest there be any misapprehension about this in the mind of any one, that the category of contempts is not limited merely to improper criticisms of judicial act, alone, as was pointed out by their Lordships of the Judicial Committee in the case of Debi Prasad Sharma and others v. The King‑Emperor 70 I A

216. Criticisms even of acts done or omitted to be done by Judicial Officer and Courts in their administrative capacity, if containing improper imputations, would also amount to contempt of Court. In that case Lord Atkin, who delivered the opinion of the Board, clearly indicated that if the acts of the Chief Justice of the Allahabad High Court which had been criticised in that case, had been even within the scope of the administra tive functions of the Chief Justice, they would have amounted to contempt."

6. In Debi Prasad Sharma's case (AIR 1943 P C 202), the Chief Justice of the Allahabad High Court was alleged to have issued a circular to the judicial officers under his jurisdiction enjoining on them to raise contributions to certain war funds. His action was criticised in a paragraph appearing in an issue of the 'Hindustan Times', apparently an editorial comment, in which, inter alia, it was observed: "If it is true that the new Chief Justice of the Allahabad High Court, Sir lqbal Ahmad, in his administrative capacity has issued a circular to the judicial officers under his jurisdiction, enjoining on them to raise contributions to rue war funds, then it must be said that he had done a thing which would lower the prestige of the Courts in the eyes of the people . . . . . It was bad enough that the services of the members of the executive were utilised for the purpose, but to make judicial officers do this work is something far worse." Reference was also made to a certain murder trial which one Mr. Singhal had attended and with respect to which he sent a report to the newspaper that before the conclusion of the pro ceedings the Sessions Judge asked for subscriptions to the war funds.

9. The printer and publisher and the editor of the 'Hindustan Times' and Mr. Singhal were convicted for contempt by a Division Bench of the Allahabad High Court. On appeal to the Privy Council their Lordships advised His Majesty that the appeal be allowed. In the course of their opinion they observed : "When the comment in question in the present case is examined it is found that there is no criticism of any judicial act of the Chief Justice, or any imputation on him for anything done or omitted to be done by him in the administration of justice. It can hardly be said that there is any criticism of him in his administrative capacity, for as far as their Lordships have been informed the administrative control of the subordinate Courts of the Province whatever it is, is exercised not by the Chief Justice, but by the Court over which he presides. The appellants are not charged with saying anything in contempt of the subordinate Courts or the administration of justice by them."

10. With great respect, I entirely agree with the learned Judges of the Dacca High Court that the only reasonable inter pretation that can be placed on the above observations is that if their Lordships of the Privy Council had been of the opinion that the Chief Justice of the Allahabad High Court had been criticised for something done in his administrative capacity, it would, if the criticism exceeded legitimate bounds, have con stituted contempt. Mr. Brohi attempted to construe the passage cited as meaning that In the opinion of their Lordships of the Privy Council the Chief Justice was alleged to have acted in an administrative capacity and that their reason for holding that no contempt had been committed was that the act was outside the sphere of his administrative jurisdiction. Such an interpretation is, in my view, unsustainable. To me it appears clear that the finding of the Privy Council was that the Chief Justice's act had been done in a private capacity. I may add that if their Lord ships had intended to give a finding that only those administrative actions of a Judge of a High Court can be the subject of' contempt proceedings which are within his legitimate sphere of jurisdiction, they would, in all probability, have been at pains to ascertain the precise limits of that jurisdiction and would not have used the phrase "as far as their Lordships have been informed".

11. Mr. Brohi cited a number of authorities before us. The first is Royal Aquarium and Summer and Winter Garden Society Limited v. Parkinson ((1892) 1 Q B 431), in which it was held that the doctrine of absolute immunity from liability to an action is confined to Courts of Justice and Tribunals acting in a manner similar to that in which such Courts act. From this dictum Mr. Brohi seeks to draw the inference that no contempt can be committed in respect of an administrative act of a High Court, but such a conclusion is unwarranted. The case in question concerned a county council, the members of which were also justices, and all that is laid down is that a county councillor making a defamatory statement at a meeting of the council held for the purpose of granting music and dancing licences is not entitled to absolute immunity in respect of that statement. Mr. Brohi also cited the example of an officer who performs the double functions of Collector and District Magistrate, and argued that criticism of an act done in the capacity of Collector would not amount to contempt. Though this contention is perhaps somewhat too widely stated, it is in substance correct, but one essential distinction between such an officer and a High Court is that even when acting administratively, the High Court remains a Court in law. The authority cited by Mr. Brohi is, therefore, not in point.

12. The next decision relied upon is Rex v. B. S. Mayyar (A I R 1950 All. 549) in which it was held that Courts are not concerned with contempt of any authority except Courts of law in the exercise of their judicial functions and that a distinction must be drawn between executive and judicial functions exercised by the same officer. It was, however, also observed in the same ruling that an act which interferes with the administration of justice either by shaking public confidence in the Court or in any other manner is punishable in contempt. In that case a complaint had been made to the Premier alleging that the Executive Authorities of a certain district manipulated the transfer of all cases of a parti cular type to a judicial officer who was the brother‑in‑law of the Private Secretary of a Minister. The learned Judges observed: "The words objected to were not used in any newspaper article or in any other writing meant for the perusal of the public generally, nor were they used to influence the Magistrate said to be concerned in them, but they were used in representa tions made to authorities which had power to redress the grievances of which the user of the words complained. Further, so far as the passages from the enclosure to the letter to the Hon'ble Premier are concerned, they were written in response to his public announcement that he would investigate any genuine grievances of the people of Bahraich that were brought to his notice. It is true that, no matter what encouragement a person may receive from those in authority, he would not be justified in doing or saying anything which would interfere with the administration of justice by shaking public confidence in Courts of justice. Consequently the fact that the Hon'ble Premier had invited the people generally to lay their grievances before him would not, in ordinary circumstances, be sufficient to justify an attack upon the judicial actions of a Magistrate nor would it permit people to attack with impunity the honesty or integrity of a judicial officer." The words emphasised clearly bring out the point that even when made in connection with a representation any attack on the honesty or integrity of a judicial officer will be punishable in contempt. The same principle is applicable to an attack on the impartiality and fair‑mindedness of a High Court, even when acting administratively.

13. Mr. Brohi next cited The State of Uttar Pradesh v. Shyam Sundar Lal Jain (A I R 1954 All. 308), in which it was held that the weapon of contempt jurisdiction should not be used except in order to maintain the dignity of the Courts and to uphold the majesty of the law, and that Courts should be reluctant to take notice of technical contempts of Courts. In the case then under considera tion the learned Judge held that though an attack of a vile nature had been made on a Magistrate, it was not shown that the due administration of justice had been interfered with or the con fidence of the public in Courts of law as Courts of justice under mined. The ruling follows a decision of the Supreme Court of India, Brahma Prakash Sharma v. The State of Uttar Pradesh (AIR 1954 S C 10), in which it was held that when called upon to exercise the summary power of punishment for contempt committed by scandalising the Court itself, two preliminary considerations should weight. (1) A reflection on the conduct or character of a Judge in reference to the discharge of his judicial duty would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses In respect of public acts done in the seat of justice. (2) When attacks or comments are made on a Judge or Judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is libel on the Judge and what amounts really to contempt of Court. With the utmost respect, I entirely agree with the principle set out above, but in the case now before us the respondent was not referring to any individual Judge or Judges in their private capacity, but to this Court on the administrative side.

14. Mr. Brohi further relied on Mehr Falak Sher v. Abdur Rashid (P L D 1953 Lah. 137), in which it was observed in connection with an attack on a Magistrate that as his conduct as a judicial officer had not been impugned, the attack did not amount to contempt of Court. This observation is, however, to be read in its context, which is that the Magistrate in question had failed to perform the executive duty cast upon him of preventing looting and arson. In the present case the allegations made by the respondent were such as clearly tended to shake the confidence of the addressee in the impartiality and fair‑mindedness of the Judges who constitute this Court, and consequently in the Court itself.

15. Mr. Brohi administered the usual warning against undue sensitivity on the part of Judges and Courts, and cited Parashuram Detaram Shamdasani v. King‑Emperor ((1945) A C 264). In that case the appellant, when, accused of misleading the Court as to the nature of the issues raised in an action, replied: "I do not keep anything back at all. My fault is that I disclose everything, unlike members of the Bar, who are in the habit of not doing so and misleading the Court." He further remarked in respect of the Taxing Masters of the Court : "It is customary for the taxing masters to write what is written at the end of the paragraph, but is it considered at all?" The remark made by their Lordships of the Privy Council, that to treat such words as requiring the exercising by the Court of its summary powers of punishment is not only to make a mountain out of a molehill but to give a wholly undeserved advertisement to what bad far better have been treated as unworthy of either answer or even notice, thus referred to an alleged contempt committed against members of the Bar and other officers of the Court, and their Lordships further significantly observed that an insult to a counsel or to the opposing litigant is very different from an insult to the Court itself or to members of a jury who form part of the Tribunal. This authority is thus not in point in the present case.

16. In the result, I am of the opinion that the remarks made by the respondent against this Court in the exercise of its administrative functions amount to a contempt of the grossest kind. Although the letter containing the offensive remarks was sent to the Chief Secretary under registered cover, it was read not only by that officer, but by the others who dealt with it in the course of their duties. The respondent has thus scandalised the Court within the meaning of Article 123 (d) (b) of the Constitution and is punishable under section 3 of the Contempt of Courts Act.

17. The only question remaining is that of the sentence to be imposed. For an offence of this nature a substantial term of imprisonment would not, in my opinion, be uncalled for, but keeping in view the age of the respondent I would sentence hi to imprisonment till the rising of the Court and a fine o R s. 2,

000. INAMULLAH KHAN, J.‑I agree. SHAKIRULLAH JAN, J.‑I agree with the Judgment proposed to be delivered by my learned brother, Ortcheson, J. K. B. A.