P L D 1966 Supreme Court 628 (PLP)

CORNELIUS, C. J.-This appeal by special leave is brought by Mr. Khalid M. Ishaque and seeks expungement of a certain passage from a judgment delivered by Mr. Justice Abdul Aziz Khan, Chief Justice of the West Pakistan High Court presiding over a Full Bench of five Judges, in a writ petition brought by Syed Abul Aala Moududi against the Government of West Pakistan. At the hearing of the petition, Mr. Khalid M. Ishaque, who was then Advocate-General of West Pakistan, represented the West Pakistan Government. The remark complained of occurs at the end of a judgment covering some 64 pages of type-script in the paper-book, in the 52nd paragraph which reads as follows:- "While my brothers and I am grateful to Mr. Brohi and the learned Attorney-General for their valuable assistance, we would be failing in our duty if we do not express dissatis faction with the handling of the case by the learned Advocate General." It should be mentioned here that the Central Government of Pakistan was not cited as a respondent in the case, but at the request of the Court, the then Attorney-General, Mr. Tufailali A. Rahman, appeared as amicus curiae, and as the verbatim transcript of the proceedings in the Court shows the Attorney General was the counsel who carried the main burden of replying to the attack on the exercise of powers under the Criminal Law Amendment Act, 1908 against the Jama'at-i-Islami, a political party of which Syed Abul Aala Moududi is the head. It is probable that the transcript does not give a complete account in all respects of what passed between the members of the Bar and the learned Judges on the Bench. It covers 140 pages of type-script, in which the portions where answers made by Mr. Khalid M. Ishaque appear are included in pages 103 to 106, relating to proceedings on the 14th May 1964, and pages 125 to 131, relating to the 16th May 1964, that is some 11 pages in all. It was said at the hearing of the present appeal that Mr. Khalid M. Ishaque's part in the argument did not cover much more than five minutes and if that be correct, then it would seem that the matter appearing on the aforesaid pages of the type-script can be accepted as a fairly full presentation of what passed between him and the Bench, and thus to contain the material basis for the opinion expressed by the learned Judges regarding Mr. Khalid M. Ishaque's performance in the case. In the petition of appeal, Mr. Khalid M. Ishaque has stated that the Attorney-General left only one question to him to be dealt with, namely, "the point of applicability of the Criminal Law Amendment Act, 1908 to the former Provinces of Sind, Punjab and N.W. F. P." This is partly borne out by the substance of the questions put to him and the answers he gave in the course of the argument. The judgment was pronounced on the 16th May 1964, and had an effect which in the case of a Law Officer of high standing can only be described as disastrous. Our attention was invited to a news-item which appeared on the 29th July 1964 in The Pakistan Times, the principal English daily newspaper published from Lahore, which reported the Law Minister of West Pakistan as saying that "following the West Pakistan High Court's remarks about the former Advocate-General about his handling of the Jama'at-i-Islami's case, the Government decided to remove him from office only giving him the option to resign." Before the 29th July 1964, Mr. Khalid M. Ishaque had tendered his resignation of his high office and it had apparently been accepted, but the news-item made it clear that this was not a purely voluntary act on his part. The severe observation made regarding his work in this very important case by a strong Bench of the High Court had taken its effect. It may be mentioned here that throughout the judgment delivered by the learned Chief Justice, there is no treatment of any argument presented by Mr. Khalid M. Ishaque. The only reference to him is that contained in the closing remarks. In one of the other judgments however, namely, that of Mr. Justice Waheeduddin Ahmad, there is mention of contention raised by Mr. Khalid M. Ishaque to the effect that the Criminal Law Amendment Act of 1908 whose validity was impugned in the case was legislation of a preventive nature and had an element of emergency. The transcript does not appear to support this observation, for all questions on the point of validity of the statute itself appear to have been dealt with by the Attorney-General. Before proceeding to consider the questions arising in this appeal, it may be mentioned hero that the decision of the Full Bench of the West Pakistan High Court was taken in appeal before this Court and was reversed on the 25th September 1964. The first question which arises in this case is whether the observation complained of can be regarded in the light of a "judicial act" capable of being reviewed by this Court in appeal. The observation was passed in relation to proceedings before the Full Bench in a strictly judicial matter. The entire proceedings were under the control of the Full Bench, and an essential part of those proceedings was the presentation of argument by counsel on the two sides. With respect to all matters transpiring in the course of the proceedings, it was within the judicial power of the Full Bench to declare its opinion judicially. There can be no question, but that every act performed by the Full Bench in the conduct of the proceedings from the commencement of the hearing up to the pronouncement of the final judgment was an act done in discharge of judicial duty, and as such enjoyed the full immunity granted by the Judicial Officers Protection Act, 1850 against liability to be sued in any Civil Court. Thus, Mr. Khalid M. Ishaque could not make this adverse observation the basis of a suit for libel against the Judges or any of them. The rights and wrongs arising out of that observation therefore are matters which can only be canvassed in appeal before this Court. I may here with advantage reproduce a meaning given to the expression "judicial act" in an Irish Judgment, which is quoted in Stroud's Judicial Dictionary, 3rd Ed., Vol. 2, p. 1540. The observation is as follows: "It is established that the writ of certiorari does not lie to remove an order merely ministerial, e.g., a warrant; but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term `judicial' does not, necessarily, mean acts of determination of matters of law; but for the purpose of this question a `judicial' act seems to be an B act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights of others." The meaning here given is a good deal wider than that necessary for application in the present case, for here the act is one performed strictly within the scope of the appeal before the Full Bench. It clearly had an extremely injurious effect upon the career of Mr. Khalid M. Ishaque in the high office of Advocate General. It is fortunate that in this case we have, as I have observed already, an account of Mr. Khalid M. Ishaque's performance in argument, which is sufficiently complete for the purpose of reaching an opinion as to the factual basis of the "dissatisfaction" expressed in the judgment of the learned Chief Justice. The matter which was the subject of interrogation of Mr. Khalid Ishaque by the Bench was not confined only to the question of the applicability of the Criminal Law Amendment Act, 1908 to the former Provinces of Sind, Punjab and I . W. F. P. It embraced further and equally precise questions. This will appear clearly from the record of the interrogation. On the 14th May 1964, Mr. Khalid Ishaque came into the argument for the first time in the case he was asked by the learned Chief Justice, at what time the Government order was made issuing a notification applying the Act to the West Pakistan Province. It should be mentioned that this Act applied of its own force to the Province of Bengal in the first instance, but by sub section (2) of the first section, it was provided that the Provincial Government of any other Province may at any time "by notification in the official Gazette extend the whole or any part thereof to that Province." Such a notification was issued by the West Pakistan Government in respect of the Province of West Pakistan on the morning of the 6th January 1964, and that answer was made. The learned Chief Justice wanted the time to be given more precisely and received the answer that the orders in the case were "being signed by the Home Secretary during the night between the 5th and 6th and some orders before that." The other orders to be signed were as follows. Firstly, an order under section 16 of the Act, declaring the Jama'at-i-Islami to be unlawful, on the ground that it either had interference, or had for its object interference, with the adminis tration of law or with the maintenance of law and order or that it constituted a danger to the public peace. Such an order was required by the section to be made by notification in the official Gazette, and such a notification was in fact issued on the morning of the 6th January 1964. Further orders were made under section 17-A of the Act, empowering the Government by notification to specify places which in its opinion were being used for the purposes of an unlawful association, whereupon the District Magistrate could take possession of such places and evict persons therefrom. Notifications to this effect were issued on the morning of the 6th January in respect of a number, of places situated all over the West Pakistan Province. Orders were also made under section 17-E of the Act enabling the Government to freeze the assets of an unlawful association by order in writing, which are to be served in person, but no notification is necessary. It appears that all these orders were ready on the morning of the 6th January 1964. The notifications required to be printed, and on being questioned on this point, Mr. Khalid Ishaque said that the printing and publication was done at 9 a.m., on the 6th January. The questioning proceeded further as to the action taken and Mr. Khalid Ishaque replied that in his presence orders were served at 4 a.m., on the 6th January and offices specified in the notification under section 17-A were also sealed. At about 4-30 a.m., `freezing' orders were also served. The questioning then turned to the point whether the Act was in force in West Pakistan on the 6th January 1964, and Mr. Khalid Ishaque replied in the affirmative, whereupon the learned Chief Justice pointed out that at certain places such as Bahawalpur, Khairpur, Baluchistan, etc., now included in West Pakistan, the Act was not in force that day. Mr. Khalid Ishaque replied by saying that in places where the Act was not in force, no action was taken, and specifically denied that any action had been taken in Bahawalpur, Khairpur or Baluchistan. The learned Chief Justice raised the question how such action could be taken in such widely separated places, when the notification declaring the association as unlawful was only published at 9 a.m., on the 6th January to which Mr. Khalid Ishaque said in reply, that action was taken after declaring the Jama'at-i-Islami to be an unlawful association, but what was really the crux of the matter was that action had to be taken all over West Pakistan and orders had to be communicated by air and on the telephone and that the process of printing was to be done by the same Government. At this point, the learned Chief Justice taxed Mr. Khalid Ishaque with having given a piece of incorrect information, pointing out that places in Baluchistan were included in the Schedule to the notification under section 17-A, and that earlier Mr. Khalid Ishaque had denied that any action had been taken in Baluchistan. From this point onwards, the argument was taken up by the Attorney-General and the next occasion on which the Advocate-General spoke was on the morning of the 16th May 1964. He cited a judgment which related to a case under section 144, Cr. P. C., and after it had been pointed out by the learned Chief Justice that the case was irrelevant, Mr. Khalid Ishaque went on to say that orders under section 17-E of the Act were served on the office-bearers of the Jama'at-i-Islami at 4-30 a.m., at which time also they were placed under detention by action under another statute. The learned Chief Justice then pointedly raised the question whether that action, viz., the freezing of the money could be taken before declaring the Jama'at-i-Islami to be an unlawful association. The question was founded upon the fact that the notification under section 16 was issued at a time on the 6th January 1964 later than 4-30 a.m Mr. Khalid Ishaque was clearly unable to meet the question. After saying that the notifications did not show the time at which they were published, he said this would be at about 8 or 8-30 a.m. Questioned when the orders were signed he referred to his earlier answer that the Home Secretary had sat through the night signing a large number of orders. He then took up the stand that the orders took effect from the time when they were signed and not from the time of notification. He conceded however that if publication was an essential ingredient for the validity of the order banning the Jama'at-i Islami, any consequential orders would be invalid, meaning presumably if they were carried out at an earlier time than the time of publication. The questioning on that point became more intense, and the answers of Mr. Khalid Ishaque appear to have become increasingly vague. For instance, having agreed that office hours were from 7-30 a.m., in those days, and that the Home Secretary had signed the freezing order at 7-30 a.m., he was asked how that order could have been served at 4-30 a.m., and the only reply he could give was that "the Home Secretary had set through the whole night passing several orders." The questions which followed served to emphasize the difficulty of his position, in explaining how the consequential orders could have been put into effect, before the banning order was published, and he finally took refuge in a mere assertion that the order under section 16 came first and the other orders followed after. He was unable to give the exact time at which the order under section 16 was signed by the Home Secretary, and again conceded that if the Court were "of the view that the publication will alone make the notification valid, this order would be illegal" to which the learned Chief Justice replied "we cannot hold it legal according to your answers. The questioning concluded by an observation of the learned Chief Justice that the rice orders directly served on the writ petitioners were admittedly served at 4-30 a.m., and they said that an order under section 16 had already been made, and asked how this statement could have been made when the latter order was only made effectively at 8 or 8-30 a.m. Mr. Khalid Ishaque could only rely on the serial numbering of the numerous orders made in the case which showed that the order applying the Act was first in the series, and was followed by the order banning the Jama'at-i-Islami under section 16, after which the remaining orders under sections 17-A and 17-E followed. As it happened, the writ petitioners had not specifically challenged the validity of the action taken under sections 17-A and 17-E and the difficulties which arose out of this intensive questioning of Mr. Khalid Ishaque never required to be cleared up. In the judgment of the learned Chief Justice only section 17-E is cited, and the following observation appears:- "There is no prayer in the petition that order under section 17-E (5) of the Act be declared to be illegal and ineffective. I therefore do not consider it necessary to go into this matter." A number of judgments of this Court were cited to us by Mr. Manzur Qadir appearing for Mr. Khalid Ishaque which resulted in expungement of observations contained in judgments delivered by Benches of the High Court. None has any relevancy to this case which is unique of its kind. It is fairly common to find that Judges of experience and maturity express approbation in their judgments of the assistance they have obtained from counsel in particular cases. Such favourable remarks are not intended to, and very rarely result in any material advantage to the counsel concerned. They are founded on appreciation by the Judges of the difficult nature of the task which an Advocate undertakes in attempting to clarify the complexities of a case and placing them in comprehensible form before the Court. When this is done effectively, it greatly facilitates the work of the Court in arriving at conclusions on proper issues. Such assistance is not rendered without a great deal of preparatory work by the counsel, and while the Judge may himself have to devote an equal amount of time to the examination of the case after the counsel have finished their task, he cannot fail to appreciate the extent to which his work in reaching a final conclusion has been aided by the analytical study applied to the case and the lucidity of its presentation by counsel who have assisted him. In this case too, the learned Judges have found it possible to reward two learned counsel who assisted at the hearing, with an expression of their gratitude for "their valuable assistance." Where appreciation may thus appropriately be expressed, it cannot be denied that dissatisfaction may with equal propriety be expressed where the assistance in relation to any matter of complexity afforded by counsel has not been up to the standard expected of him. Yet, such occasions are rare indeed, and are probably so by reason of a uniformly high standard of advocacy being maintained. It may also be due to proper appreciation by Judges of the difficulties counsel have to overcome, not only in their labour outside the Court, but also when they undertake the delicate and onerous duty of presented the case before the Court. The quality of the assistance rendered by counsel varies from case to case and from counsel to counsel, and it may of course also vary from Judge to Judge. But almost universally, it is appreciated by Courts that the work of counsel is difficult and delicate and it is for this reason that occasions when Courts take it upon themselves to condemn the work of a counsel in a particular case are so extremely rare. In this case, the adverse criticism conveyed in the words used by the learned Chief Justice is only too plain. The judgment was delivered in a case which had attracted very great publicity. It was published in full in the daily newspapers, and as has already been seen, it immediately attracted the attention of the Provincial Government, and led to a position in which Mr. Khalid Ishaque had to face dismissal from the office of Advocate-General if he did not resign. But, it is not only the gravity of the consequences that can determine the question whether the learned Chief Justice was within his rights in passing the unfavourable opinion which is now sought to be expunged from the record of the High Court. It has been seen already that it was a judicial act, and enough has been said to indicate that there is no impropriety in a Judge including in his judgment an observation regarding the quality of the assistance given to him by counsel in the case, which may be either favourable or unfavourable. But the expression of opinion must be a judicial act, that is to say, it must be performed judicially, being passed upon matters of fact satisfactorily found, and a proper judgment based thereon with due regard to all the circumstances. It is in that light that the performance of Mr. Khalid Ishaque in this case must now be examined. The very great importance of the case to his employer, the West Pakistan Provincial Government, cannot be denied. It was an occasion upon which the most careful preparation and the clearest presentation of their case may appropriately have been required of him. This Court would have been in a somewhat better potion to appreciate the justification for the learned Chief Justice's dissatisfaction if the basis for it had been set out, however briefly, in the judgment. But in view of the existence of a full transcript of the proceedings from which Mr. Khalid Ishaque's performance appears very clearly, it is possible to ascertain the grounds for that dissatisfaction with a high decree of certainty. It would also have been of assistance if the learned Chief Justice had expressed a conclusion of some kind on the points in respect of which Mr. Khalid Ishaque was questioned so intensively, and as appears from the answers he tendered, so much to his own disadvantage. Here again, the transcript of the proceedings comes to our aid. There can be no question, but that the point raised was of considerable importer The validity of action taken under law rests on observation the legal provisions, and here, as the questioning shows, there was a well-founded doubt in the minds of the learned Judges whether the consequential actions under sections 17-A and 17-E of the Act were not taken before the publication of orders under section 1, sub section (2) and section

16. The learned Judges were clearly of the view that the notified orders could only take effect from the time of their notification and publication in the Government Gazette, which was given as at 8-30 a.m., on the 6th January 1964. Yet, the premises of the Jama'at-i-Islami was sealed, and various orders were served at 4-30 a.m., some four hours earlier. When asked to justify the actions at 4-30 a.m., which depended for their validity upon the effectiveness of the notifications which were published at a later hour, the answers given by Mr. Khalid Ishaque were certainly not such as to give satisfaction. He sought to rely on the time of the signing of the orders by the Home Secretary, but even those times, he was unable to specify, nor could he clear the doubt that the consequential orders may have been signed first, i.e., before the Act had been applied, and the Jama'at-i-Islami had been banned, effectively in law. Some of the answers he gave were clearly evasive. He was driven to rely on mere assertion to establish the sequence. It appears also that in a certain respect, namely, as to the Act being in force in places situated in Bahawalpur, Khairpur and Baluchistan, the answers he gave were shown to be incorrect. The position in that respect was that the Act had been enforced earlier in the old Punjab and in the old North-West Frontier Province, but as the Provincial Government intended to take simultaneous action against the Jama'at-i-Islami whose organisation covered the entire Province, it was necessary to make it applicable to the whole Province, and this could only be done by a fresh notification under section 1, subsection (2) applying the law to the whole Province. A proper answer to the difficulty brought out in the questions from the Bench probably lay, not in any reference to the facts as to the moment of signing of the different orders or the moment of notification, but on a legal foundation, developed by analogy to section 5(3) of the General Clauses Act, 1897, which provides that: unless the contrary be expressed, a Central Act shall be construed as "coming into operation immediately on the expiration of the day preceding its commencement." Thus, if the commencement be declared to take effect on a particular day, say the 6tb January 1964 the Act would be deemed to come into force E immediately after the stroke of midnight of the 5th January 1964. Equally, if the Act were expressed to come into effect on the granting of assent thereto, then if that assent was given on the 6th January 1964, the operation of the order would still commence from midnight on the 5th January 1964. The analogy lies in this, namely, that an order made under section 1(2) of the Criminal Law Amendment, Act, 1908, applying that law, to a place where it previously had not applied, is substantially an act of legislation, which would take effect from the earliest moment of the day on which the order is made, in the same way as an Act of a legislative authority takes effect from the earliest moment of the day which is the day of its commencement. If authority be sought on this point, it may be found in the judgment of the Federal Court in this case of Sobho Gyanchandani (P L D 1952F C 29). On this basis, the notification under section 1 (2) which was printed and published on the 6th January 1964, took effect immediately after midnight of the 5th January 1964, and from that moment onwards actions under the Act became possible, e.g., the order under section 16 declaring the Jama'at-i-lslami to be an unlawful association. That order was one affecting the law in the whole of West Pakistan. It is a primary function of law to declare that which is lawful and distinguish that which is unlawful, and here there was a declaration of unlawfulness in relation to a great political party, in respect of membership and activities covering the entire Province. Therefore, following the same analogy, it could have been urged, whether with success or otherwise it is not possible to say, that the notification banning the Jama'at-i Islami also took effect immediately after midnight of January, 5, 1964. If that argument had been accepted then indeed the doubt regarding the validity of action under sections 17-A and 17-E taken at 4-30 a.m., on the 6th January 1964, may well have been dispelled. If such an argument had been presented, it is difficult to suppose that any cause for dissatisfaction would have been left in the mind of the learned Chief Justice or of the other members of the Bench in respect of the reply given to the difficult question which they had raised. But, as has been said already, Mr. Khalid Ishaque did not have any argument except factual submissions regarding the exact times of signatures and publication, which answers were based on insufficient information and were in themselves ineffective to carry conviction. He certainly did not make things easier for himself by being found to have given incorrect information on a point of considerable importance. That, being the situation, it is difficult to deny to the learned Judges a justification for the feeling that in a case of such great public importance, Mr. Khalid Ishaque had not given them the assistance to which the Court was entitled. In that situation, it is not possible to find a case for expungement of the adverse observation made regarding his performance by the learned Chief Justice. Enough has been said to indicate that unfavourable criticism of the work of an Advocate in any case, and particularly in difficult cases; ought to be and is generally avoided by Courts, bearing in mind the arduous and delicate nature of the counsel's task. It is to be hoped that this attitude will always be maintained. Fear of such criticism could in many cases defeat the principal purpose, which is to encourage counsel to give of their best to the preparation and presentation of their clients' causes. But in the present case, after giving very careful consideration to the basis of the criticism which the appellant has suffered, I cannot find a case for the relief which he has claimed, and I would accordingly dismiss this appeal, but would make no order as to costs. FAZLE-AKBAR, J.-I agree. HAMOODUR RAHMAN, J.-I agree. NIUHAMMAD YAQUB ALI, J.--I agree. S.A RAHAMAN, J.- I concur in the order proposed to tie passed in this case by my Lord, the Chief Justice, but I confess I do so with a considerable sense of unease. The right of a superior Court like the High Court to comment on the conduct of a case by counsel appearing before it, is entitled to respect but I venture to suggest that occasions when a Court might feel called upon to administer a written censure to an Advocate, as part of a judicial pronouncement, should be rare and conditioned by extreme necessity. Courts should be conscious of the grave consequences that condemnatory remarks in a solemn judgment might entail, as they did in the present case. The appellant had to resign his high office as Advocate General to attempt to vindicate his position by recourse to this Court. Unfortunately for him, as the impugned observation cannot be held to be entirely unrelated to some cause for dissatisfaction by the learned Chief Justice who was its author and is not otherwise vitiated by any error of law or procedure, it must be allowed to stand. In my humble opinion, however, the circumstances of this case, perhaps, did not warrant the strong terms of the condemnatory remark in question. The main function of arguing the case on behalf of the Government, was assigned, by common consent of the counsel and at the suggestion of the learned Judges themselves, to the learned Attorney-General, whose assistance was duly appreciated by them. The Government position was upheld by the High Court. The appellant in his capacity as Advocate General was questioned only on a limited aspect of the case, for a short time. His answers on certain points of fact, as is revealed by the written transcript of the dialogue between the Court and the appellant, filed with the Memorandum of appeal were perhaps not as clear and precise as they might have been. The impression gained from the impugned remarks, however, would be that the appellant's presentation of the case on behalf of Government, had somehow jeopardised its chances of success before the Court. But that was far from being the case. On the factual plane, while defending certain steps taken by Government under the relevant Act, the appellant, I apprehend, found himself in some difficulty and that was reflected in his answers to the Court's questions. In such a contingency, the Court might well have cast an indulgent eye on the slight confusion into which the argument drifted, or at the most confined itself to an oral expression of disapproval. But the learned Chief Justice, in his wisdom, deemed it fit, to express his dissatisfaction with what I consider to be, speaking with all respect, unduly pungent terseness, without explaining the cause for it. His right to do so may not be denied, but the recognition of this legal position is tinged in any case with a genuine regret that such a situation should have been allowed to arise at all. A. H. Appeal dismissed.