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Criminal Appeal No.37 of 1964, decided on 9th April 1965.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 11th June 1964, in Criminal Original Case No. 71 of 1963).
- Contempt of Court - Criticism of High Court - Article 123 wide enough to embrace both judicial and administrative functions of High Court and even functions not strictly within these two categories.
A legal practitioner was convicted for contempt under Article 123 of the Constitution of Pakistan (1962) for sending a telegram to the High Court "strongly protest against arbitrary selection of Civil Judge candidates". In appeal before the Supreme Court it was urged that in sifting the applications of candidates for the post of Civil Judges, the High Court was merely assisting the Public Service Commission in its task under Article 186 of the Constitution to make selection of the candi dates, this act of High Court, it was urged, was neither a judicial act nor an administrative act and as such any criticism of an act which the High Court is not obliged to perform under any law or rule cannot amount to contempt or fall within mischief of Article 123 of the Constitution.
Held, in the case of Mohsin Tirmizy v. The State it has already been held by the Supreme Court that in view of the plain words of clause (2)(b) of Article 123 of the Constitution no distinction can now be made between the administrative and judicial func tions of the High Court so far as contempt by scandalising the Court is concerned. Whatever may have been the controversy with regard to this species of contempt in England, our Consti tution has set that controversy at rest. If the offending act or word is of a nature which "scandalizes the Court" or otherwise "tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt", it is sufficient. The words of clause (2) of Article 123 are wide enough certainly to embrace both judicial and administrative functions and even functions which may not come strictly within these two categories if they have any one of the offending tendencies mentioned in this clause and the attack is, an attack "upon actions of the High Court as such Court". The appellant attacked the High Court "as such Court" and charged it with grossly unprincipled and unjudicial conduct in the matter of making the preliminary selection. This was a gross libel of the High Court which clearly had the tendency of lowering it in the estimation of those who read the offending telegrams.
Mohsin Tirmizy v. The State P L D 1965 S C 28 ref.
A. K. Brohi and M. Anwar, Senior Advocates Supreme Court of (Miss R. S. Qari, Advocate Supreme Court with them) instructed by M. A. Rahman, Attorney for Appellant.
Nasiruddin, Advocate-General West Pakistan (Ehsanul Haq,
Advocate Supreme Court with him) instructed by Ijaz Al:, R Attorney for Respondents.
Date of hearing: 9th April 1965.
-This is an appeal as of right under clause 2(c) of Article 58 of the Constitution from a conviction for contempt under Article 123 of the Constitution by a Special Bench of three Judges of the High Court of West Pakistan.
The appellant, who is an Advocate of the High Court of nearly 25 years' standing practising at Lyallpur, on the 13th of April 1963 sent the following telegram to the Chief Justice of the Wes a istan High Court :-
"Strongly protest against arbitrary selection Civil Judge Candidates."
He followed this up by two further telegrams on the 15th of April 1963, one addressed to the Chief Justice and the other to the Chairman of the Provincial Public Service Commission, Lahore. Both of these read thus :-
"One hundred members of the District Bar Association, Lyallpur, protest against arbitrary selection of Civil Judge candidates by the West Pakistan High Court and request that all the applicants should be called for interview before the Public Service Commission."
On receipt of these telegrams the Chief Justice caused a copy thereof to be sent to the District and Sessions Judge, Lyallpur, with the request to furnish the High Court with a copy of the proceedings of the Bar Association, Lyallpur, leading to the issue of the said telegrams and the names of the members of the Bar who attended the meeting in which the resolution of protest was alleged to have been passed. When the proceedings of the Bar Association were received they revealed that a requisitioned meeting of the Bar Association was held on the 16th of April 19 3, at which 97 members were present and the following resolution was passed by a majority of 13 votes :-
"The District Bar Association, Lyallpur, protests against the method of selection of Civil Judge candidates by the High Court, inasmuch as no principle or criterion seems to have been observed, and requests that all the applicants may be sent to the Public Service Commissioner for interview."
The appellant was the mover of this resolution, 49 members supported it and 29 members opposed it.
The President of the Lyallpur Bar Association, who presiaea over this meeting, it appears, pointed out to the members that "it was essential that no speech or resolution which may in any manner tend to scandalise the High Court or bring it or any Judge of the High Court into contempt" should be allowed. He had also read out Article 123 of the Constitution at this meeting and cautioned that "the dignity of the profession of law was knit with the honour and dignity of the High Court". Notwithstanding his the resolution was carried. The President,, thereupon, on the next day tendered resignation as, in his view the passing of the resolution also amounted to an expression of no-confidence against him. The resignation was on the next day placed before the Executive Committee of the Bar Association which did not agree with the view of the President, requested him to withdraw his resignation and reaffirmed the confidence of the Bar in him.
It will thus appear that the telegrams in question were sent before even the requisitioned meeting was held and they neither correctly represented what had transpired at the meeting nor were they sent at the request of the Bar Association or under its authority.
In these circumstances the learned Chief Justice on the 4th of July 1963, directed a notice to issue to the appellant alone calling upon him to show cause as to why action should not be taken against him for contempt of Court under Article 123 of the Constitution in respect of the above-mentioned telegrams.
The appellant appeared before the learned Chief Justice in response to the notice and filed a written statement wherein he admitted having sent the offending telegrams but submitted that nothing contained in them constituted contempt of Court, because :-
(1) the selection of Civil Judges was not a judicial act,
(2) the expression of opinion with a view to curtail the jurisdiction of the Court does not amount to contempt,
(3) the selection of Civil Judges being not even a constitutional obligation of the High Court either in its administrative side or in its judicial side, any criticism regarding its acts in that behalf could not amount to contempt,
(4) there had been no publication of the telegrams in any newspaper, and
(5) the telegram was not sent with any intention of bringing the High Court into contempt.
Finally the appellant expressed his highest respect for the High Court but the written statement contained no words of regret or apology.
This matter came up for hearing before the learned Chief Justice on the 15th of July 1963. The appellant was present in person and was also represented by two learned Advocates of the High Court. Again, no apology was tendered but various submissions were made in support of the contention that no contempt of Court had been committed by the said telegrams. The learned Chief Justice without expressing any opinion on any of the points raised by him thought it fit to refer the matter to a larger Bench so that the scope of Article 123 of the Constitution in relation to the facts and circumstances of this case could be authoritatively determined. The Special Bench after hearing the appellant and his learned Advocate as also the learned Advocate-General on behalf of the State has in an elaborate and well-reasoned judgment reviewing the relevant case-law on the subject come to the conclusion that the offending telegrams did scandalise the High Court in so far as they contained words suggesting that the High Court was acting in an arbitrary, that is to say, unprincipled and unjudicial, manner, and thereby amounted to gross contempt.
The contention that in sifting the applications of the candidates seeking appointment to the posts of Civil Judges the High Court was acting outside the scope of either its judicial or administrative functions was repelled and it was held that in making the preliminary selection, although the High Court was not performing either a judicial function or any other function prescribed by any rule or law, it was nevertheless acting in its administrative capacity and not merely in a private capacity, for the High Court as such bad no private capacity. The criticism offered was in respect of an act of the High Court in its public Capacity and since the words used in the telegram clearly d the tendency to bring the High Court into hatred, ridicule or contempt they amounted to scandalising the Court which was a serious kind of contempt. The appellant was accordingly convicted and sentenced to pay a fine of Rs. 100 only or in default suffer imprisonment till the rising of the Court.
The fact that there had been no undue publication of the con tents of the telegrams in any newspaper was held to be immaterial, for, by sending a telegram similarly worded to the Chairman of the Public Service Commission there had been sufficient publica tion of the scandalous matter.
Mr. Brohi appearing in support of this appeal has, in view of the decision of this Court in the case of Mohsin Tirmizy v. The State (PLD1965 SC 28), urged only one point before us, namely, that the criticism of an act of the High Court, which is neither a judicial act nor an administrative act which the High Court is obliged to perform under any rule or law, cannot amount to contempt or fall within the mischief of Article 123 of the Constitution. He has contended that since upon the findings of the High Court itself that the sifting of the applications of the candidates for appointment as Civil Judges was neither "in performance of its judicial functions" nor an Act "prescribed by any rule or law", the High Court should have discharged the rule for contempt.
In support of this contention he has drawn our attention to section 8 of the West Pakistan Civil Courts Ordinance No. 2 of 1962 under which the power of appointment of Civil Judges is vested in the Provincial Government whilst the selection is to be made exclusively by the Provincial Public Service Commission under Article 186 of the Constitution. Although section 8 of the above Ordinance expressly provides that such appointments are to be made "in consultation with the High Court", learned counsel has strenuously contended that this consultation cannot be stretched to embrace the sifting of applications as was done in the present case.
It is urged that all the duties that devolve upon the High Court must have some legal sanction behind them, for the High Court can do nothing which it is not authorised by law to do. Reliance is placed in this connection on Article 130 of the Constitution which provides that no Court shall have any jurisdic tion that is not conferred on it by this Constitution or by or under the law.
As has been fully explained in the judgment of the High Court what happened in this case was that in order to make provision for the disposal of a large number of cases, which had accumulated in the Subordinate Courts, the Government at the request of the High Court agreed to appoint 20 more Civil Judges. These posts were advertised for and in response to the advertisement some 675 applications were received. The Public Service Commission was requested by the High Court to conclude its process of selection as early as possible, as the High Court was anxious to have the appointments made expeditiously. The Public Service Commission, having regard to the large number of applications received, expressed its inability to do so unless the High Court assisted it by making a preliminary selection of the applications. The preliminary sifting was, therefore, under taken by the High Court in the interests of having the appointments made expeditiously so that the large accumulation of work in the Subordinate Courts may be taken up as early as possible. The Public Service Commission, it appears, is entitled under its . own rules to seek such assistance. It cannot, therefore, be said that the High Court was in a position of purely a voluntary intermeddler, or that the preliminary sifting undertaken by it had no connection whatsoever with its administrative functions or the power of supervising or controlling Courts subordinate to it under Article 102 of the Constitution.
In the case of Mohsin Tirmizy v. The State, it has already been held by this Court that in view of the plain words of clause (2)(b) of Article 123 of the Constitution no distinction A can now be made between the administrative and judicial functions of the High Court so far as contempt by scandalising the Court is concerned. There too it was argued that the appointment and removal of District and Sessions Judges did not appertain to any of the functions of the High Court and that the High Court had really no jurisdiction, either administrative or judicial, in the matter, but this Court repelled the contention and pointed out that it was "clear enough that the attack was upon the actions of the High Court as such Court", and since the attack amounted to a libel of a grave character, it clearly fell within the mischief of contempt.
The decision of this Court in the above-mentioned case was announced on the 22nd of October 1964, after the decision of the Special Bench in the case under consideration. If the High Court had had the advantage of this decision it would not have been necessary for it to enter into such an elaborate examination of the general law relating to this category of contempt by scandalizing the Court. We do not consider it necessary, therefore, to enter upon an examination of all the decisions referred to in the High Court Judgment. Whatever may have B been the controversy with regard to this species of contempt in England, our Constitution has set that controversy at rest 1 Clause (2) of Article 123 of our Constitution provides :-
"(2) A Court shall have power to punish any person who--
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court ;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt ;
(c) does anything which tends to prejudice the determination of a matter pending before the Court ; or
(d) does any other thing which, by law, constitutes contempt of the Court."
Thus if the offending act or word is of a nature which "scandalizes the Court" or otherwise "tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt", it is sufficient.
The words of this clause of Article 123 are wide enough certainly to embrace both judicial and administrative functions and even functions which may not come strictly within these two categories if they have any one of the offending tendencies mentioned in this clause and the attack is, as observed in Mohsin Tirmizy's case, an attack "upon actions of the High Court as such Court." In the present case we are in entire agreement with the High Court that the appellant attacked the High Court "as such Court" and charged it with grossly unprincipled and unjudical conduct in the matter of making the preliminary selection. This was a gross libel of the High Court which clearly had the tendency of lowering it in the estimation of those who read the offending telegrams.
It is, in any event, difficult to draw the line between an administrative and a judicial function so far as the injurious tendencies referred to in this clause are concerned, for, an attack of the nature made in the present case, namely, that the High Court was acting in an unprincipled manner would clearly tend also to lower the authority of the High Court with regard to even its judicial functions by undermining the confidence of those who seek justice from it.
For these reasons we are of the opinion that the decision of the High Court is correct and the present case is fully covered by the principles laid down in the case of Mohsin Tirmizy. This appeal is, accordingly, dismissed but having regard to the fact that a question of interpretation of the Constitution was involved we make no order as to costs.
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