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Petitioner: S. ISRAR HUSSAIN VS Respondent: THE CROWN
P L D 1954 Federal Court 313
P L D 1954 Federal Court 313
(Appellate Jurisdiction)
Present: Muhammad Munir, C. J., A. S. M. Akram,
M. Shahabuddin, A. R. Cornelius and
Muhammad Sharif, JJ.
S. ISRAR HUSSAIN‑Appellant
versus
THE CROWN‑Respondent
Criminal Appeal No. 3 of 1953, decided on 20th October 1954.
[On appeal from the judgment and order dated the 5th November 1951, of the Chief Court of Sind in Criminal Miscellaneous Application No. 142 of 1951 Crown v. Abdul Aziz and S. Israr Hussain].
Contempt of Court‑Affidavit with transfer application scandalising Judge of Chief Court‑Grossest form of contempt ‑Plea that there was no intention to scandalise, whether relevant ‑Justification never a good defence‑No privilege‑Apology, when mitigating circumstance‑Sentence, reduction of.
An affidavit filed by appellant with a transfer application (under section 25 C. P. C.) in the course of a suit on the original side of the Chief Court of Sind in which he was the plaintiff contained the following allegations against the judge
(1) That the judge had been the Legal Advisor of the father of defendants 2‑8 and that defendant No. 1 in the course of negotiations for a compromise had asserted in the presence of Mr. Hafiz, advocate of the appellant, that defendants 2‑8 had undertaken to arrange matters with the judge.
(2) That the judge had not permitted the appellant to explain his case or to examine certain documents.
(3) That the Judge had prepared a false and incomplete note of inspection which he had, on request, refused to correct so that the note may be mis‑interpreted by the defendants or the Appellate Court.
(4) That in the matter of permitting affidavits to be filed the judge had been partial because he had permitted the defendants to file fresh affidavits when they were not entitled to do so, but had disallowed the appellant from doing so though he was entitled to it.
(5) That in Court, on more than one previous occasion, the judge had blustered like a bully. He lost temper and grew hot, but also made faces, howled in anger and indulged in brow‑beating the appellant and his advocate for reasons better known to him. He spoke loud, refused either to understand the appellant's case or to examine an important document and ordered the plaintiff to sit down. On 19th September, on seeing the affidavit of the appellant he again burst into anger, spoke at the top of his voice, and humiliated the appellant's advocate and lowered him in the eyes of his clients and some members of the public present in Court.
(6) That justice was not only not being done by the judge but it did not appear to be done by him.
Held, (Per M. Munir, C. J., Akram, Shahabuddin, and M. Sharif, JJ. concurring) that the affidavit constituted one of the worst contempt s of a superior Court ever committed by a party.
If a person scandalises a judge of a superior Court in such a manner as to bring him within the definition of contempt, it cannot be good defence to the proceedings for contempt that his intention was not to scandalise, because the essential question in such cases is the tendency of writing to lower the authority of the judge by bringing him into disgrace and not the intention underlying the writing. No one can be allowed to defame, ridicule or abuse a judge in his public capacity even with the best of motives because if that sort of thing were once held to be permissible the whole judicial system would readily be brought into utter contempt.
The test in such cases is whether the writing tended to interfere with the due course of justice and not what the intention of the writer was.
No authority or opinion was cited that where proceedings in contempt are initiated against a person who has scandalised a judge of a superior Court, truth can be successfully set up as a defence. The whole principle of the Law of Contempt is against any such defence, and if the law were as contended for, the whole administration of justice would be brought into disrepute because in that case the honour of the Judges would be at the mercy of disgruntled litigants who might with impunity attack the judges and when proceedings in contempt were taken against them, bring them into further contempt by pleading truth and offering to prove it.
A transfer application, even if it lies, is not a privileged occasion.
[In this case the transfer application was under section 25 C. P. C. which is inapplicable where a High Court is not presided over by a single judge.]
There is no law that where a party in an application for transfer makes wanton, reckless and uncalled for allega tions against a judicial officer, such allegations are immune from the penalty for contempt merely because they occur in an application for transfer. On the contrary, there are cases where action for contempt was held to be competent even where a Judge was scandalised by a party in the taking of a legal or statutory step.
There is no such thing in law as justified contempt or privileged contempt and that part of the Law of Defamation which allows pleas of justification and privilege, absolute or qualified, to be taken in defence is wholly irrelevant to the Law of Contempt.
An apology in contempt cases can be a mitigating circum stance only if the contemner surrenders himself unconditionally to the judgment of the Court and an apology after every conceivable defence has been taken, adjudicated upon and repelled and an appeal to the Federal Court has failed can hardly be considered to be genuine or received with sympathy.
The proper Court to accept the apology is the one of which the contempt was committed.
It is not the practice of the Federal Court to interfere with sentence which is essentially a matter of discretion for the Court against whose judgment appeal by special leave is brought.
Per Cornelius, J. (On privilege, nature of contempt, and sentence):
The wording of section 25, C. P. C., undoubtedly supports the view taken by the learned judges that this section has no application to the Sind Chief Court which has more judges than one. Yet, both the learned judges who have recorded judgments in the case have mentioned a published ruling of the Bombay High Court wherein it appears clearly to have been assumed that section 25 C. P. C. might be invoked in relation to a High Court with more than one Judge. Even in the Sind Chief Court, the matter when it came up in the present case was one of first impression.
A transfer application being competent, whether in one form or in another, it follows that there was a bona fide occasion to give expression to the existence of dissatisfaction with the judge from whom transfer was sought. Consequently, there must be liberty to the aggrieved person to set out the facts and reasons constituting the grounds of such dissatisfaction. It goes without saying that such expressions must be in the nature of criticism of the judge, either as to his capacity to deal with the case, by reason of interest or otherwise, or as to his conduct of the case. The argument in this case has proceeded on the basis that it is possible, by the use of improper expressions, to exceed the legal privilege to a litigant who proceeds in this way.
In a case of this kind, it is necessary that the offending statement should be considered as a whole; and that the words should be interpreted in the plain and popular meaning which they possess for the average reader. For it must be remembered that the principle underlying the punishment of scandalous attacks on judges is that they constitute an obstruction to public justice, as against the public, and not as against the particular judge who is attacked. It is beyond question that the punishment is inflicted for the purpose of protecting the public, and not for the protection either of the, Court or of the individual Judges, from repetition of the attack.
Since the imputation is in relation to the judge as holding the particular office, in order to constitute a libel, of a scandalous nature, the statement must impute want of some general or special 'quality requisite for that office.
I have considered also whether the minimisation of the offence which follows upon my analysis of the case‑in other words, the elimination of certain features of aggravation which undoubtedly influenced the Sind Chief Court in determining the sentence‑can be a valid ground for such interference. There is no doubt of the power of this Court, in the discharge of its duty to do "full justice", to reduce sentences, and such a power may be thought to be attracted more particularly in a case of summary punishment for a criminal contempt, such as the present, since the appeal is directly from the convicting Court, which was itself the prosecutor.
Jamil Husain Rizvi, Advocate, Federal Court, instructed by Muhammad Siddiq, Attorney, for Appellant.
M. Anwar, Advocate, Federal Court, for Respondent.
Date of hearing: 5th October, 1954.
JUDGMENT
MUHAMMAD MUNIR, C. J.--‑This case, which comes to us on appeal by special leave, recalls an incident which happened in the Chief Court of Sind in September, 1951, and led to summary proceedings in contempt before a Bench of all the five judges of that Court, who unanimously found the appellant guilty and sentenced him to one month's impri sonment.
As it is the first case of its kind, the facts require statement in some detail. These are given by Tyabji, C. J., in his leading judgment and are as follows :‑
Appellant Israr Hussain is an advocate of the Chief Court of Sind with 23 years' practice at the Bar. He was originally practising in the District Courts of Jubbalpur and came over to Pakistan after the Partition. He took a house on lease from Qamar‑ud‑Din, the owner of the house, and some time in 1951, and possibly earlier, a dispute arose between him and his landlord. The owner began to build on a portion of the premises which the appellant claimed was in his possession and covered by the lease. He, therefore, objected to the landlord's action and instituted proceedings under section 145 of the Cr. P. C. before a Magistrate in Karachi who found ag4inst the appellant. Thereupon the appellant instituted against Qamar‑ud‑Din and six others a suit, Suit No. 388 of 1951, on the Original Side of the Chief Court, praying for a permanent injunction restraining the owner‑landlord from "carrying out any construction on the premises occupied by me". With the plaint, the appellant filed an application for temporary injunction in terms in which the permanent injunction was prayed for. This application came up before Mr. ' Justice Muhammad Bachal, who issued an interim injunction ex parte, with a notice to the defendants to show cause why it should not be confirmed for the duration of the suit. After this the proceedings were transferred to Mr. Justice Vellani who seems to have been nominated by the Chief judge for the disposal of civil miscellaneous matters on the Original Side.
The application was fixed for hearing on the 13th August, but on that day parties asked for an adjournment on the ground that there was a possibility of the matter being compromised. The hearing was accordingly adjourned to 20th August, on which date, no compromise having been effected, a request was made to the Court to inspect the site. The learned judge went to the spot on 21st August, and wrote an inspection note on the same day. When the matter was taken up in Court, the appellant applied for permission to put in an affidavit, and this request was allowed. On the neat hearing, the 28th August, the appellant made another application for leave to file further affidavits, but this application was rejected by the learned judge. Up to this stage, the appellant was represented by Mr. Hafiz, but now he engaged another counsel, Mr. Aziz, who, on 10th September, made some other application in support of which, contrary to the orders of 28th August, he put in four fresh affidavits. On the next hearing, the 19th September, Mr. Aziz filed still another application accompanied by an affidavit under rule 75 of the Rules of the Chief Court. As Qamar‑ud‑Din defendant wished to file a counter‑affidavit in opposition to the application under rule 75, the hearing was adjourned to 24th September. When the case was called on the 24th September the appellant' presented in Court the following application under section 25 of the C. P. C. :‑
It is prayed that on the grounds in the accompanying Affidavit the Hon'ble Court be pleased to make a report to the Provincial Government to transfer the suit herein to any other High Court of Pakistan, for disposal of the application made under Order 39, rules 1 and 2 C. P. C."
The accompanying affidavit was a lengthy document, and since it is that affidavit which is alleged to constitute, and has been found to amount to contempt, it needs. reproduc tion in extenso. The affidavit stated ;
"I, Syed Israr Hussain, son of S. Muhammad Raza, Muslim, aged about 48 years, practising Advocate at Karachi, residing over Gulshan Hotel S. R. 7/10, South Napier Road, Karachi, do hereby solemnly declare and affirm as under: ‑
(1) That I am the plaintiff in the case.
(2) That this is a suit filed by me for injunction restraining the defendants, their servants or agents from carrying out any construction on the premises occupied by me.
(3) That I am a Mohajir and family man having a large family consisting of old and infirm ladies, ailing wife, grown up and minor children and have been living in the present premises for the fast three years.
(4) That on account of the housing difficulties in Karachi and the above circumstances, the question involved in the suit is almost a question of life and death for me.
(5) That during the course of these proceedings, when the compromise talks were going on between my Advocate and the Defendant No. 1 and his Advocate, the Defendant No 1 in the presence of his Advocate had said that he did not care if the plaintiff goes to Hell. When I came to know of this talk from my Advocate, I protested to the Defendant No. 1 and reminded him that he had apologized to me for the mischief done to me and was. Prepared to give me alternative accommodation and now he was talking in that way. On this the Defendant No. 1 got wild and threatened me saying that all that matter was gone and that now unless I agreed on taking merely a passage, he would have me thrown on the street as the Hon'ble Judge had been the Legal Adviser of the Defen dants 2 to 8 Abdullah Bhai Muhammad Ali's father, Mr. Muhammad Ali, and that they would arrange everything here.
(6) That without in any way reflecting upon the integrity and honesty of this Hon'ble Court, I submit that con sidering what had happened before the Hon'ble Court in this matter, that it will be just, convenient and proper that this matter be transferred from the Court of Your Lordship.
(7) That in this matter the application under Order 39, rule 2 C. P. C. came for hearing before the Hon'ble Court and from the beginning the attitude and behaviour of the Hon'ble Court as visible to me was that the Hon'ble Court has not permitted me either to explain my aspect of the case or to even examine the sketch and the inspection report of the Lower Court on record.
(8) I am practising as an Advocate. I have put in a practice of about 23 years, within my information and knowledge of law, there is no provision of law or Court Rule which grants a right or liberty to a judge to lose temper and grow hot, make faces and burst into outbursts of anger or to brow‑beat one party. In this matter the Learned judge got angry for reasons better known to him and tried to brow‑beat me and my Advocate, Mr. Hafiz. He spoke loud and refused to either understand my aspect of the case, or to even examine the sketch and the inspection report of the Lower Court, on record. He stopped and ordered Plaintiff to sit down and when my advocate again attempted to put my case, the Hon'ble Court said that it being only the question of passage, the parties should settle it.
(9) That on the next hearing, the Hon'ble Court itself suggested that it would see the premises. Accordingly, the Hon'ble Court went to the site but did not note the position of the room, latrine, passage, sewage pipe, etc., as alleged by both the parties in spite of request by the plaintiff's advocate and on being pressed, the Hon'ble Court remarked that he had not come there to hear the case.
(10) That the inspection made in the inspection report regarding the original position of the room is not correct, as according to the inspection note, the Plaintiffs room extended to 2 or 3 feet of the first pillar, whereas in fact, the said room extended to 2 or 3 feet of the second pillar.
(11) That on submission being made for correction, the Hon'ble Court admitted the position taken up by the Plaintiff but did not make the necessary correction and left the whole thing on his own memory with the result that the inspection note might be mis‑interpreted by the defendants or by the Appellant Court. In such a ; ase, the plaintiff will have no option but to cite the Hon'ble Judge in evidence which will be very difficult. . (12) That the Defendant's Advocate having once filed a counter Affidavit, had no right under. Rule 75 of the Chief Court Rules to file a second affidavit but on the suggestion of the Hon'ble Court, the Defendants filed another affidavit, consequently the Defendants filed another affidavit which was accepted by the Hon'ble Court without entertaining any application from the Defendants. Besides the. Hon'ble Court did not allow the Plaintiff to file a rejoinder to the Defendants' second affidavit.
(13) Under the circumstances, I got afraid and decided to engage another Advocate and engaged Mr. A. Aziz, and filed four affidavits on 10th September, 1951, and gave copies thereof to the Defendant's Advocate.
(14) That the application under Order 39, rule 2, and section 145 C. P. C. again came up for hearing before the Hon'ble Court on 19th September, 1951. On taking up the case and seeing the affidavit of the Plaintiff, the Hon'ble Court burst into anger and spoke at the top of his voice in an obviously discourteous manner, thereby humiliating and lowering m~ advocate, Mr. A. Aziz, in the eyes of his clients and. several public sitting there. However Mr. Aziz withstood it with patience and moved the application under Rule 75 C. C. Rules, and the matter was fixed for hearing on 24th September, 1951. The Advocates, who were present in the Court at this occasion, will, I am sure, bear testimony to these facts.
(15) That considering the threats of Mr. Qamar‑ud‑Din and the well‑known dictum that Justice should not only be done, but must also appear to be done', it is submitted that this Hon ble Court be pleased to report to the Provincial Government for transfer of this matter to some other High Court.
(16) That during the course of hearing of this matter, the Hon'ble Court had on several occasions expressed himself in such a manner that it has given me an appre hension that the above matter will be decided against him.
(17) That the above statements are of my knowledge.
(Sd.) S. Israr Hussain
Deponent". 24th September 1951.
The learned Judge read the application but not the affidavit, and in view of the unusual nature of the application adjourned the hearing to 1st October. On the following day, the affidavit was splashed in the press and came to the notice of the learned judge, who on 27th October made the following report to the Chief judge: ‑
"On Monday, 24th September 1951, Suit No. 388/51 was called up before me as it was on the Miscellaneous Board for the hearing of applications. When it was called up, Mr. Aziz, advocate for the plaintiff, stood up and said he had filed an application under section 25, C. P. C., for transfer of the case. I asked him whether the application lay before me or before the C. J., but he maintained that it lay before me. I then read the section and the application. I noticed that the affidavit was a long one but did not read it then.
Mr. Aziz then stated on enquiry from me that a copy of the application and affidavit had been supplied to Mr. Muhammad Sadiq, Advocate for the defendants. Mr. Muhammad Sadiq, acknowledge receipt and said the object was to delay the matter and referred to the prayer, which appears in the application. He waived notice of the application and I stood the matter over to 1st October, 1951. I was not then aware of anything more that an unusual application had been‑made and was unaware of the scandalous matter contained in the affidavit, which was not then read.
The contents of the affidavit have since been brought to my notice and as it contains matter which I consider amounts to contempt of Court, I think it right to bring the matter to the notice of the C. J."
On perusing this report, the Chief Judge issued a notice to the appellant and his counsel Aziz to show cause why they should not be punished for contempt. The matter was heard by the Chief Judge and the remaining four judges, including Mr. Justice Vellani. The leading judgment was delivered by the learned Chief judge acquitting Aziz but convicting the appellant of contempt and sentencing him to simple imprisonment for one month. Mr. Justice C0nstantne wrote a separate order, but agreed with the learned Chief Judge on both the points, namely, that the affidavit amounted to contempt, and that the appellant deserved the sentence proposed. The other three judges all concurred.
The petitioner applied for special leave to appeal to this Court from the judgment of the Chief Court, and on 26th March, 1952, he was allowed to d6 so by the following order :‑
"The petitioner, Israr Hussain, now practising as an Advocate in Sind Chief Court, instituted a Suit No. 388/51 in that Court and in connection therewith made an appli cation for a temporary injunction under Order 39, C. P. C. and obtained an ex pane order. When this application came up for final hearing on the 24 September, 1951, the petitioner, Israr Hussain, put in an application supported by an affidavit for a transfer of the case under section 25 C. P. C. from the Chief Court of Sind to some other High Court. As the affidavit aforesaid was found to contain certain statements of an objectionable nature, proceedings were started under the Contempt of Courts Act against the petitioner Israr Hussain, and he was convicted and sentenced to suffer simple imprisonment for one month under section 2 of. Act XII of 1926. Israr Hussain has now presented the present petition for special leave to appeal against the order aforesaid.
The main ground urged before us was that the petitioner, Israr Hussain, had acted in good faith in stating his grievances to the Court: that the statements were not mere scandalous libel or recrimination but were material allegations which constituted the foundation of the petitioner for transfer and were made before those who 'had power to examine whether they Were true or false; that such a course was justified in law as it was made in support of his own interest by the petitioner; that as the application for transfer was still pending disposal and no opportunity was afforded to substantiate the allegations, the conviction and sentence could not be sustained.
We think that the matter requires consideration and examination. Leave to appeal prayed for is, therefore, granted. We direct that the petitioner, Israr Hussain, shall not be taken into custody pending the disposal of his appeal in this Court.
On behalf of the appellant, we have now heard Mr. Rizvi who has merely reiterated the arguments that appear in the order granting special leave to appeal and who has wisely refrained from attempting to support them by irrelevant authorities. If the affidavit is analysed it will be found that it contains the following allegations against Mr. Justice Vellani : ‑
(1) That the judge had been the Legal Advisor of the father of defendants 2‑8 and that defendant No. 1 in the A course of negotiations for compromise had asserted in the presence of Mr. Hafiz, Advocate of the appellant, that defendants 2‑8 had undertaken to arrange matters with the Judge.
(2) That the judge had not permitted the appellant to explain his case or to examine certain documents.
(3) That the judge had prepared a false and incomplete note of inspection which he had, on request, refused to correct so that the note may be misinterpreted by the defendants or the Appellate Court.
(4) That in the matter of permitting affidavits to be filed the Judge had been partial because he had permitted the defendants to file fresh affidavits when they were not entitled to do so, but had disallowed the appellant from doing so though he was entitled to it.
(5) That in Court, on more than one previous occasion the Judge had blustered like a bully. He lost temper and grew hot, but also made faces, howled…
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