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Petitioner: YUSUF ALI KHAN, BARRISTER-AT-LAW VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Hamoodur Rahman, Sajjad Ahmad Jan, Muhammad Yaqub Ali Khan Title: YUSUF ALI KHAN, BARRISTER-AT-LAW vs THE STATE Case No.: Criminal Appeals Nos. 2 and 3 of 1969 Criminal Original No. 205 of 1968 Date of Judgment:1970-05-07 Reported As: PLD 1970 Supreme Court 350 Result: Appeals dismissed
JUDGMENT
JUDGMENT HAMOODUR RAHMAN, C. J.-These two appeals arise out of two contempt proceedings drawn up by the High Court of West Pakistan, Lahore Seat, against the appellant, who is a Barrister---at-Law and a member of the High Court Bar. In each of these cases he has been found to be guilty of contempt and has been sentenced to undergo simple imprisonment for one month in each case and to pay fines of Rs. 1,000 and Rs. 2,000 respectively. In default of payment of the fines he has to undergo further simple imprisonment for a period of one month and two months, respectively, but the sentences of imprisonment are to run con--currently. Criminal Appeal No. 2 of 1969 arises out of a notice issued to the appellant, under section 3 of the Contempt of Courts Act, by the Registrar of the High Court of West Pakistan, Lahore, under the directions given by Jamil Asghar, J. On 17-6-68 for having scandalised the Sessions Judge, Sahiwal in a transfer application under section 526 of the Criminal Procedure Code, filed in the High Court in the case of State v. Muhammad Amir and others being Criminal Miscellaneous Application No. 1934 of 1968. The said Muhammad Amir and two others, who had been charged under section 302/34 of the Pakistan Penal Code were, during the pendency of the commitment proceedings, granted bail by the Sessions Judge of Sahiwal on the 16th September 1967. Shah Muhammad, the father of the murdered person, moved an application in the High Court for the cancellation of the bail but the application was dismissed. Muhammad Amir and his co-accused were thereafter committed for trial to the Court of Sessions and once again Shah Muhammad moved the Sessions Judge, Sahiwal for the cancellation of the bail and engaged the appellant for this purpose. This was fixed for hearing on the 6th December 1967, but when the case reached its turn the Sessions Judge, without
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giving any reasons, adjourned the hearing till the following morning. On the following day the application was rejected and the trial of the case was fixed for the 13th of May 1968. A transfer application was thereupon filed on the 29th April 1968, supported by an affidavit of Shah Muhammad affirmed on the same date. The transfer petition in Criminal Miscellaneous No. 1934 of 1968 and the affidavit in support thereof were drafted by the appellant and they contained the following averments:- "(a) That the father and members of the family of the respondents are talking 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 in a position to pay a heavy sum of money to procure the acquittal of the respondents. (c) 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 respondents, 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 Counsel 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-Corruption 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 the District 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 man who is willing to pay him anything. (f) That the petitioner's suspicions are strengthened by the fact that the learned Sessions Judge did not hear his application 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 l7th January 1968 (Cr. Misc. No. 5770 of 1967)." Besides these it was also alleged in paragraph 6 of the transfer petition that "the learned Sessions Judge adjourned it (the bail cancellation application) on the 6th December 1967, because he wanted to show favour to the respondents for the reasons well---known to him". When this transfer application came up for hearing in the High Court, a report was called for from the Sessions Judge, Sahiwal. In this report the Sessions Judge stated that the allegations made against him were incorrect and baseless. He further pointed out that on the morning of the 6th December 1967, while he was attending to his office work in his retiring room, the appellant came to see him at about 9 a.m. And told him that he had come 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 if the case is committed to the Sessions. The learned Judge did not consider it proper on the part of the appellant to discuss a pending case with him in his retiring room and, therefore, told him that he should produce the authority at the time of arguments in Court. Thereafter when the case was called up for hearing in the Court he felt that if he heard the case then, the accused persons and their counsel, who had seen the appellant coming out of his retiring room, might carry the impression that the appellant had seen him in his retiring room in connection with the case. He, accordingly, adjourned the case.
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On perusing the report of the Sessions Judge, the High Court asked the appellant at the hearing of the transfer application if what was stated by the Sessions Judge was correct. He admitted that he had seen the Sessions Judge in his retiring room but stated that he had gone there only to pay his respects. The High Court considered it very improper on the part of the appellant to have gone into the retiring room to see the Sessions Judge and to have talked to him about the case in which be was to appear before him on that very day and took the view that it placed the Sessions Judge in a "most awkward position". The transfer application was, accordingly, dismissed but it was left to the discretion of the Sessions Judge to transfer the case to one of his Additional Sessions Judges if he considered that he would not be able to Judge the case with an unbiased mind. This order was passed on the 16th May 1968, but when this was communicated to the Sessions Judge, he wrote back on the 29th May 1968, that the allegations in the transfer application having been found to be baseless and scandalous, he should be given protection by taking suitable action against the appellant. It was thereupon that the show-cause notice was directed to be issued on the 17th June 1968. It was further pleaded that, according to the principles of English Law, an Advocate is absolutely privileged and no proceedings can be taken against him either for defamation or for contempt of Court in such circumstances. In support of this contention reliance was placed on the decision in the case of Munster v. Lamb ((1883) 2 9 B D 588). It was further reiterated that the appellant had not visited the Sessions Judge, Sahiwal in his retiring room in connection with the application for cancellation of bail but had merely made a courtesy call, thinking that it was his professional duty to do so. He stayed in the retiring room only for a few minutes and during this period nothing was discussed except the weather and the surprise visit paid to that Court by a learned Senior Puisne Judge of the High Court. Nothing was mentioned about the case or about producing any authority in support of the cancellation of the bail. It was further pointed out that this was not the first occasion on which the appellant had made such a courtesy call on the Sessions Judge concerned. He had done so on previous occasions too when the learned Judge was posted at Mianwali and the appellant was to appear there before him in a murder case but the learned Judge had not taken any objection to such calls by the appellant. Indeed it was the practice of the appellant to call upon the Judge before whom he had to appear and he had done so on many occasions but no one had taken any objection thereto. Even the learned Sessions Judge of Sahiwal had not pointed out to the appellant that it was improper for him to call upon a Judge when he was to appear in a case before him. Finally it was stated that "although the respondent has not committed any offence" yet he would, in deference to certain observations of the then Chief Justice of Pakistan in the case of Sir Edward Snelson (PLD 1961 SC 237), offer his "unconditional apology to the Court for anything done by him which the Court has thought fit to take exception to". The High Court took the view that in the transfer application "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 said Judge. Not content with maligning the Sessions Judge alone, even the fair name of his wife was dragged in to suggest that she was receiving bribes on behalf of her husband through a lady friend". According to the High Court these allegations constituted the grossest form of scandalisation of the Court and needed to be visited with severe punishment. The High Court also took the view that the principle of Muntser v. Lamb was not attracted in this case. On the contrary it followed the principle enunciated by Cockburn, C. J. In Ex parte ; Peter ((1864) 5 B & S 299=122 E R 842), wherein it had been held that a Barrister may be punished for contempt of Court even for language professedly used in the discharge of his functions as an Advocate.
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Having disposed of the claim of privilege, the High Court went on to examine a number of other decisions wherein it had been held in this sub-continent that "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". The High Court was also of the view that there was inherent evidence in the transfer application itself to reflect the personal annoyance of the appellant with the learned Sessions Judge, for, the complaint that the learned Sessions Judge had taken no interest in his arguments at the hearing of the application for cancellation of bail must have been based upon his personal observations and not of his client. The contention that since the Sessions Judge himself had not taken exception to the appellant's visit to his retiring room, there could be no question of embarrassment for the learned Sessions Judge, was treated by the High Court as being of no consequence, because the appellant was not being proceeded against on that account but in respect of the allegations contained in the grounds filed in support of the petition for transfer. The High Court did not also accept the apology tendered at the end of the written statement and described as an "conditional apology" as sufficient evidence of "real contrition," on the part of the appellant. It was felt that the apology was being tendered not because the appellant wanted to apologise but because he felt compelled to do so in view of the observations in the case of Sir Edward Snelson. In any event the plea of justification and apology could not be treated as being mutually compatible. In this view of the matter the appellant was found "guilty of having made a wanton and reckless attack on the integrity and dignity of the Sessions Judge of Sahiwal" and was convicted and sentenced, as stated above. It was also directed that the case of the appellant should be referred to the West Pakistan Bar Council to consider in the interest of the litigant public whether he was a fit person to continue on its rolls as an Advocate. Criminal Appeal No. 3 of 1969 arises out of another pro--ceeding started under Article 123 of the Constitution of 1962 in the following circumstances:- It appears that the appellant on the 28th June 1968, wrote a long letter to Jamil Asghar, J., of the High Court which has been reproduced in extenso in the judgment of the High Court. In this letter he complained that the Judge concerned was hostile towards him and was in the habit of insulting him in open Court in the presence of the public. It will be sufficient for our present purposes however, to quote only the last two paragraphs of this letter: "(4) I am fully aware of the background of your hostility and am in no doubt that your behaviour is not because of any personal grievance of your own and that there is some other man behind it. Whatever the reasons, I am aggrieved by your behaviour and do hereby emphasise once again that it does not behove a Judge of the High Court. I shall go still further, and that it does not behove even an ordinary gentleman. As a Judge of the High Court you must act as a Judge and your decisions must be judicial and not tainted with personal malice for one reason or the other. I have no hesitation in saying that your Lordship's decisions in both the Criminal Miscel--laneous petitions (1934 of 1968 and 2770 of 1968) and the two earlier petitions filed on behalf of Sarfraz Ahmad are not judicial, but rather founded on your personal hostility. (5) In view of the above I feel I should request that you may advise the Deputy Registrar not to fix my cases before you. It is both in the interests of justice, as well as the "interest of your person", because I make it clear that I shall not pocket any more insult and it might result in a country-wide, rather world-wide scandal. Again, it is highly undesirable that wrongful orders should be wilfully passed by you to the detriment of others because of your hostility towards me." He was served with a notice on the 17th July 1968, to show cause as to why he should not proceeded against in contempt for the scandalous language used in this letter whereby it had
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been imputed that the learned Judge had been motivated by malice and improper motives in the rendering of his decisions and the performance of his duties. The appellant submitted a written statement, through a learned Senior Advocate, on the 20th September 1968, in which he admitted having sent the letter but denied that its language was either scandalous or that it had been written with any intention of scandalising the Judge concerned or the Court. He claimed that the letter had been addressed to the learned Judge by name and marked confidential "with a view to expressing the injured feelings" of the appellant. No publication had, it was said, in the circumstances been intended or taken place. Therefore, there had been no scandalisation at all. He also maintained that the tone of the letter was neither insolent nor disrespectful. Indeed he asserted that he had nothing personal against the learned Judge and finally he concluded again by citing the observations made by Cornelius, C. J., in the case of Sir Edward Snelson and offering an unconditional apology to the Court for anything done by him which the Court had thought fit to take exception to. At the hearing of the matter an attempt was made to bring in other evidence with regard to the comments alleged to have been made by the Judge concerned but the High Court refused to admit this evidence and decided to proceed on the basis of the contents of the letter itself. Reading the letter as a whole the High Court came to the conclusion that it did scandalise the Court and tended to bring the High Court or a Judge of the High Court into ridicule or contempt. Portions of the letter were clearly intended to intimidate the Judge so as to prevent the latter from acting in a free and independent manner while dealing with the appellant's cases in Court. Indeed the imputations in the letter were found to be clear enough to suggest that the learned Judge was in the discharge of his judicial functions, being influenced by extraneous considerations and that even his actions were being influenced by "some other man behind". It directly charged that the learned Judge's decisions in at least two mattes were not judicial but founded on his personal hostility against the appellant. The concluding paragraph of the letter was also found to be not only insolent and offensive but also to contain a threat, virtually ordering the Judge to direct the Deputy Registrar of the High Court not to fix the appellant's cases before him as "it is both in the interests of justice, as well as the interest of your person". The hint is obviously at physical violence besides other injury. This paragraph also contains a threat that the appellant would not pocket the alleged misbehaviour on the part of the Judge and any repetition of it might well result in a country-wide, rather world-wide scandal. The conclusion of the High Court with regard to this letter is as follows: "Reading the letter critically and analytically as above, and also reading it as a whole it is clear to us that it is perhaps one of the most insolent, most offensive and most scurrilous communications ever addressed by a practising member of the Bar to a Judge of the superior Court of which such member claims to have the honour of being an Advocate." With regard to the pleas raised the High Court had no hesitation in holding that the letter even though it was addressed directly to the Judge and marked confidential did constitute a contempt of a most serious kind as the contention that unless there was publication of the letter there could be no contempt was untenable. Reliance for this was placed on the observations of Kayani, C. J. In the case of Abdul Latif (PLD 1961 Lah. 51). The attempt made by the learned counsel, appearing for the appellant in the High Court, to suggest that the latter had been provoked by the unpleasant behaviour of the learned Judge himself, also failed to impress the High Court, which took the view that "an outburst 'of temper or impatience on the part of the Judge cannot justify a member of the Bar in resorting to the language which the respondent (now appellant) has thought fit to employ in the letter under consideration".
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The apology tendered at the end of the written statement was also not accepted as it had been tendered more out of a feeling of compulsion in view of the observations of this Court in the case of Sir Edhvard Snelson rather than out of any feeling of contriteness on the part of the appellant. The appellant was, accordingly, found guilty and punished as earlier stated. He has now come up on appeal to this Court. I take up Criminal Appeal No. 2 of 1969, first as it stands on a somewhat different footing. The appellant has neither in his written statement before the High Court nor in his petition in this Court disputed that the words used by him in the transfer application were capable of bearing the meaning assigned to them by the High Court. All that has been stated is that the appellant had "drafted the application on the express instructions of the petitioner Shah Muhammad and with no intention of making any attack on the honesty and 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". The appellant claims that he is in the circumstances absolutely privileged in making these allegations on the basis of the principle enunciated in the case of Munster v. Lamb. The appellant has further taken up the ground that since the learned Sessions Judge is under the control of the High Court, any allegation against him contained in an application made to the High Court in any form would not constitute a contempt of Court. It would thus appear that although in the High Court the appellant did not seek to justify the allegations as being true he has done so in this Court. In his written statement filed in the High Court he had merely suggested that since the allegations were made on the express instructions of his client, it would be desirable that the client himself "should be called upon to prove the allegations made by him against the learned Judge." At the hearing of the contempt matter in the High Court the learned counsel appearing for the appellant had also, it appears, scrupulously avoided attempting to justify the allegations and had relied mainly on the plea of privilege taken on behalf of the appellant and the apology tendered at the end of the written statement. The question, therefore, that arises is as to whether an Advocate or a legal practitioner can in the proper discharge of his duties make such scandalous imputations against a Judge even though he be a person under the superintendence and control of the High Court, in a formal proceedings moved in a Court. The appellant seems to think that he was not only entitled to do so but it was, in fact, his duty to do so. In support of this contention he has relied on certain observations of the Federal Court in the case of S. M. Haq v. Hon'ble Judges of the High Court of Judicature at Lahore (PLD 1953 FC 247). S. M. Haq, an Advocate enrolled in the High Court of Lahore had been suspended by that Court from practising as an Advocate for a period of 3 months in exercise of the powers resting in that Court under clause 8 of its Letters Patent on the ground that while acting as Senior counsel in an appeal before the Federal Court against a judgment of the High Court he had included in the written grounds filed in the Federal Court, material which, in the opinion of the High Court, constituted a contempt of that Court. In that case, the majority judgment, pointed out that having regard to the fact that the Federal Court does not interfere on the criminal side in any case unless the error is "so outrageous as to shock the very basis of justice" or such as constitutes "a violation of the principles of natural justice" counsel presenting a petition for special leave to appeal before that Court are indeed placed in a difficult position in undertaking this duty. They are, therefore, entitled to expect that the Courts would appreciate their difficulties and even "where there is an appearance of transgression" will regard it with sympathy and toleration, for, without such a reassurance "the apprehension that the criticism which they are obliged to offer may be viewed in a personal or over-sensitive light must act to deter counsel in the performance of their duties to such an extent as would necessarily affect the Court's capacity to do complete justice in cases coming before it.
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It is true that this difficulty was felt by the Court but the Court immediately went on to point out that from this it must not be imagined that "counsel enjoyed the same degree of liberty of expression as is possessed by the Court". Having regard to the necessarily "tentative nature of the submissions advanced by counsel", the Federal Court administered the following caution:- "In other words, without minimising in any way the function of stating in substance what he wishes the Court to hold, provided the Court is competent to hold it, counsel should be careful not to add to the difficulties of his position by needless stringency of language. Provided the criticism is advanced with the single purpose of aiding in the due dispen--sation of justice, no words employed can be too strong, if in choosing them, it is also borne in mind that so far as possible, no words should be used which gratuitously bring disrepute to, or be little, the Judges or the Court whose work is being criticised." The Courts concern to preserve the balance was manifested further by its concluding observations to the following effect: "In a future case, it may be a matter for serious consideration whether the need to ensure that the counsel who…
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