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Criminal Original No. 66 of 1960, decided on 9th January 1961.
Parties‑Proceedings initiated suo motu by High Court against Public Servant viz., Law Secretary to Government of Pakistan‑Application by Attorney‑General that Central Government be made party to proceedings‑Step, "entirely unique" but application allowed by Court.
‑Parties‑Proceedings initiated on notice suo motu by High Court against Public Servant viz., Law Secretary to Government of Pakistan‑Central Government aligning itself with respondent‑Advocate‑General not appearing "in support of notice"‑Court asking another Advocate as amicus curiae to render assistance [p. 86]B
‑Proceedings initiated suo motu by High Court against Law Secretary to Central Government Central Government party to proceedings apart from respondent. Written statement o/ Central Government pleading that the material taken exception to was not want to be disclosed to the public in view of provisions of Official Secrets Act (AIX of 1923), and hinting that Court itself had contravened that Act by making such material, part of judicial record‑Hint, condemned by High Court, as threat to Court.
‑Party to proceeding before Court ‑No better rights than any other party‑"Goverment, ed Croft", Vol. 2 by Sir Thomas Elyot reproduced in Oswald's "Contempt of Courts", Chap. IJI.
‑Opinion expressed out of Court‑Chief Justice's speech published in press‑Not made subject of decision by any Court‑Irrelevant in judicial proceedings.
‑No distinction between rights of Government's counsel and counsel of private party.
‑Carrying out "blindly" illegal orders of client‑Runs risk of being deprived of privilege of pleading before Courts.
‑Duties of ‑Courts not debarred from pointing out‑[Imran Ullah v. The Crown P L D 1954 F C 123 ref.].
‑Judge considering case at preliminary stage with a view to determining whether or not proceedings should be taken‑Not precluded from "hearing" case.
‑Decision by all Judges of High Court to issue notice for contempt of Court‑Judges not precluded from hearing case‑[Emperor v. Publisher Daily Gazette' Karachi A I R 1940 Sind 239 ref.].
‑Breach of law matter of concern to "the Court" rather than an individual‑Judges presumed to be above personal considerations in matter of contempt.
‑Delay in starting proceedings‑Not open to any "legal" objection.
‑What constitutes contempt.
Contempt of Court‑Law in Pakistan --Power to punish contempt came from Common Law of England American legal authorities, whether applicable‑[Case No. 11 p. 695 of United States Supreme Court Digest, Volume 5 considered].
‑Opinion on points of law irrelevant in decision of case by Court of law.
‑Primarily apply to their own facts‑Can have but little weight where facts different.
References to "articles" in newspaper or law journal‑Treated as redundant.
‑Subject of proceedings to be read as a whole‑[The King v. Dumbabin and another 1935 Commonwealth L R 434 and The King v. Fletcher and another 1935 (Vol. 53) Commonwealth L R 248 ref.]
Principles deducible from judicial authorities, for determining question whether contempt has been committed.
A speech or a writing which is under consideration for determining the question whether contempt of Court was com mitted must be read as a whole because though it may here and there contain objectionable words, its purport may be entirely innocuous. Cases may arise that a speech or writing though innocuous for the major parts may contain very objectionable passages here and there and be clearly culpable. In order that criticism of the judicial acts of Judges should be immune from punishment under the Contempt of Courts Pict, 1926, the criticism should be fair and not made with the object of lowering the authority of Courts and should not impute motives to Judges nor should it be intended to depict Judges as incompetent people unfit to hold their onerous offices.
In re : Clement (1871) 46 L J R Ch. Div. 375; Arthur Reginald Prenn v. The King 1951 A C 482 ; Mcleod v. Saint 1899 A C 549 ; Government Pleader v. Tulsidas Subhanrao A I R 1933 Bom. 197 ; The Crown v. Amin‑ud‑Din Sabra P L D 1949 Lah. 410 ; Aswam Kumar Ghosh and another v. Arbinda Bose and another A I R 1953 S C (Ind.) 75 The State v. Editor, Printer and Publisher of the Nagpur Matribhumi A I R 1954 Orissa 149; Andre Pual v. Attorney General A I R 1936 P C 141 ; S. M. Hag v. The Hon'ble Judges of the High Court of Judicature at Lahore P L D 1953 F C 247 ; Rex v. B. S. Nayyar A I R 1950 All. 549 and State v. Brahama Parkash and others A I R 1950 All. 556 considered.
Halsbury's Laws of England, Vol. 24, Paras. 22 and 96 to 101 ref.
‑Law Secretary to Government of Pakistan giving a talk to Section Officers of Government on "Transitional Constitution" of 1958‑Talk "scandalizing" Judges of High Court, by suggesting, in effect, that High Courts "were manned by incompetent people who did not understand a branch (writs) of law" and saying about a judgment of the High Court "we have never been able to understand the judgment"‑Talk constitutes contempt.
On the 15th of February 1960, Sir Edward Snelson (respon dent), Secretary to the Government of Pakistan, Ministry of Law, gave a Talk at Rawalpindi to the Section Officers of the Govern ment of Pakistan with regard to the "Transitional Constitution" of 1.958. On the 17th of September 1960, two thousand pamphlets containing this Talk and some other matter were printed by the Manager, Government of Pakistan Press, Karachi. Twenty‑five of these pamphlets were sent by the Director of Training, Secretariat Training Institutes, Rawalpindi, to the West Pakistan Government . and Section Officer VIII, acting from the Additional Chief Secretary to the Government of West Pakistan, sent a copy of the pamphlet to the Registrar of the West Pakistan High Court Lahore for information.
Apart from other matter, the Talk contained the fallowing paragraphs (numbered by the Judges as 9 and 10) :‑
"9. I think everybody has heard about the writs or, as the Law Ministry prefers to call them‑to indicate the source of the power‑the prerogative writs. Between 1956 and 1958 the High Courts had used the language of the 1956 Constitution‑with its reference to orders and directions in the nature of writs‑to claim a jurisdiction to interfere with the Government itself without reference to the strictly defined frontiers of the prerogative writs. A Court can issue a writ only because the sovereign function is to that extent delegated to it by the sovereign, that is to say, by the State. Clearly the delegate cannot exercise the power against the sovereign itself, and that has been made clear over centuries of decisions by the Courts in England where the writs first originated by delegation from the King, and this has been followed in the United states where the sovereign power descended to the people and is exercised in their name by the President. As an American Judge recently said : there cannot be two sovereigns, and the sovereign will not issue a prerogative writ against itself'. The Law Ministry has had to appeal a large number of times to the Supreme Court to have the position properly established, and has succeeded in every appeal but one. All this has cost a very great deal of money, and to try and put the situation right without having to spend more money on more appeals a clause was inserted in the Order we are discussing giving the High Courts the power to issue the named writs' (not 'orders or directions' and
so on, but writs) of mandamus and the rest. This was to indicate, as politely, as possible, that a writ was a writ, confined to known limits, and the limits could not be exceeded. I have to confess that, even with this civility, we have not entirely succeeded even yet, but this clause on the one side, and some very severe observations by the Supreme Court on the other, have at least had the effect of indicating that after all there are limits and that the limits must be observed. The great thing, in any orderly system of Government (and without orderliness there is chaos) is that every organ of the Government should be best adapted to the work it has to do and should know what that work is and what its own frontiers are. This avoids duplication. It avoids friction. It prevents usurpation of function and consequent uncertainty, with all the public confusion and private misery that it can lead to."
"10. I apologize for taking up so much time over this Order, but on it the whole fabric of the Constitutional Government of the country rests until we have the new Constitution. Perhaps you would have wished me to say something about the services, seeing that what was originally a single paragraph, Article 6, has now been increased to a further six paragraphs, some modifying the terms and conditions of service already guaranteed‑but not all: one of the additions establishes the power to grant extensions of service, a power which was denied by the High Court. We have never been able to understand the judgment: We would, of course, have appealed against it, and I have no doubt we should have succeeded, but there. was no time‑a certain loan from abroad was made conditional upon the continued retention of certain people, and since the High Court had denied the power to retain, and we could not wait for the months an appeal would take, the existence of the power was formally asserted in an explanation.
We chose this particular way of doing things, if you are interested to know, so as not to concede that the power had to be created:
We took it for granted that, notwithstanding the judgment, and in order not to prejudice our appeal if we ultimately did appeal in any other case, the power does exist."
The pamphlet was circulated amongst the Judges of the Court stationed at Lahore. Some of the Judges read the pamphlet and as they were of the view that it contained matters open to grave exception, all the Judges were asked to read it before consideration of the question whether any, and if so, what action should be taken in the matter. When the matter came up for consideration on the 25th of October 1960, the Judges of the Court present at Lahore were of the view that as parts of the Talk of the respondent which occurred in the printed pamphlet, in paragraphs numbered by the Judges as 9 and 10, contained matter which was calculated to lower the Court in the eyes of those who heard the Talk as well of those who read the pamphlet and to undermine the authority of the Court, notice should issue to the respondent to show cause why he should not be dealt with under the Contempt of Courts Act, 1926.
In the written statement the respondent in addition to saying that he had no intention of committing contempt of Court, said that the Talk in question was given at the invitation of the Establishment Division of the President's Secretariat to the Section Officers attached to different departments of the Central Govern ment with a view to acquainting them with the new constitutional position, that later on Section Officers stationed at Karachi who had to take departmental examination represented to the Establishment Division that as they had not had the benefit of hearing the talk, they should be supplied with its copies, whereupon the Establish ment Division sought the permission of the respondent for the publication of the Talk to which the respondent agreed on the express understanding that the printed copies should not go outside Government circles, that having been printed under these circumstances, the Talk was marked for "official use only", that a reference to the different decisions of the High Courts by which he meant both the High Courts, was made with a view to impressing upon the Section Officers who heard the Talk the importance of keeping within their respective spheres, and that in a progressive society legitimate criticism of official acts, including judgments of Courts of Justice, is always treated with consideration and favour.
In his examination in Court, the respondent maintained that writs could not issue to Government and that before saying that he had read Article 170 of the abrogated Constitution:
that the respondent had indulged in "scandalizing" the High Courts in Pakistan and that he was guilty of contempt of Court unless it was proved that he was protected.
The following conclusions emerged from a perusal of paras. 9 and 10 :‑
The respondent had said in paragraph 9 that in spite of the fact that the Law Ministry had tried to point out to the High Courts the limits of their jurisdiction and in spite of some very severe remarks of the Supreme Court, they had not been able to fully grasp the law about writs and the High Courts had been encroaching on the preserves of the Government.
The mention, in the end of paragraph 9, of "chaos", "confusion" and "misery" resulting from failure to keep in view the frontiers between the functions of the different organs of Government, was referable alone to the High Courts overstepping the bounds of their jurisdiction.
In paragraph 10, the tone in which the judgment of the High Court, which had not been reversed by the Supreme Court, was commented upon was, to say the least of it, not proper, and if an officer of the position of the respondent had use] the language that had been used in paragraphs 9 and 10, nobody could think that the use of that language was not intentional.
It was the duty of the respondent to see that the language he had employed was not offensive and discourteous.
If the tone of the Talk is offensive, a Court of law would be justified, by reason of the rule that everyone must be presumed to intend the natural and ordinary consequences of his acts, in presuming that the Talk was intentionally offensive.
[Also see W AT page 114 et seq and XX page 124 et seq]
‑Privilege‑Plea that impugned "Talk" was given by officer of Government "at instance of Government", or that the talk was confined to Section Officers of Government ‑Untenable.
‑official document‑Contemptuous matter in pamphlet marked "for official use only"‑High Court issuing notice in contempt proceedings on basis of such matter which, being part of judicial record, went into publication in news paper‑Making matter part of judicial record, whether not for "official purpose"‑Official Secrets Act (XIX of 1923), S. 5,
Publication‑Contempt committed in Muhammad "Talk" before officials‑"Talk" reproduced in pamphlet, which was sent to officials, marked "for official use only"‑Contempt‑ publication to public not necessary.
‑Privilege‑Law Secretary to Govern ment of Pakistan giving "Talk" to Section Officers of Government containing contemptuous matter‑Not protected‑Plea that Law Secretary had to deal officially with legislation and appeal work of Government in High Court not accepted‑Plea of protection, available only, where views are expressed on confidential official files, not broadcast to anyone other than those having official concern in matter.
Disparaging or derogatory things said before Court, subordinate or superior to Court maligned‑
Whether protected‑[The State v. Abdur Rahman P L D 1957 B. J. 6 and S. M. Haq v. The Honourable Judges of the High Court of Judicature at Lahore P L D 1953 F C 247 ref].
Allows issue of writs against Government "even in service matters" ‑[Mahmood Ali Khan etc. v. The Islamic Republic of Pakistan P L D 1958 Lah. 1 ref].
Law Secretary saying in "Talk" addressed to Section Officers of Government that "some very severe observations" were made by the Supreme Court with regard to the mode of exercise of writ jurisdiction by the High Courts --Whether contempt‑Observations though severe, substance of same may not be addressed to people to whom it was addressed [Tariq Transport Company, Lahore v. The Sargodha Bhera Bus Service etc. P L D 1958 S C (Pak.) 437; The State of
Pakistan v. Mehraj‑ud‑Din P L D 1959 S C (Pak.) 147 and Pakistan through the Secretary, National Assembly v. Khandkar Ali P L D 1960 S C (Pak.) 1 mentioned].
Intention to scandalize‑To be deduced from respondent's acts.
‑High Courts of West and East Pakistan maligned‑High Court of West Pakistan competent to take action by itself‑Judges of High Court of West Pakistan stationed at Lahore competent to take action though there were other Benches of the Court at Karachi and Peshawar.
Contempt on two occasions within a year‑Contempt addressed in "Talk" to officers of Government "Talk" subsequently repeated in pamphlet‑May be considered together‑Criminal procedure Code (V of 1898), S. 234.
Plea of fair criticism‑Available only if no motives imputed to Court‑Facts forming basis of criticism must be accurately stated.
‑Conferred by sovereign in England‑By statute in Pakistan‑Constitution of Pakistan (1956), Art. 170.
"
"‑Means no more than "for use of Government Officials", "not meant to be marketed"‑Does not imply that publication was secret or confidential.
More than one allowed to address on behalf of same party in circumstances of case .
‑Cannot be used by others to defame Court.
‑
‑Law Secretary to Government addressing objectionable "Talk" to Section Officers of Government‑No privilege‑No duty of Law Secretary to impart legal knowledge to Section Officers.
‑Cause for initiation of proceedings suo motu by Courts‑"Sense of duty" not "sensitiveness".
Law has two broad aspects: maintenance of implicit faith in dignity, efficiency, and uprightness of Judges, and protection of Judges from intimidation, vilification or abuse.
Sh. Abdul Haq for Respondent.
Nazir Ahmad Khan Attorney‑General and Ghais Muhmmad, Standing Counsel to Government of Pakistan for Government of Pakistan.
Mahmud Ali as amicus curiae.
Dates of hearing: 14th, 15th, 17th and l8th November 1960.
This case, the proceedings of which were marked by some unexpected events, each of the most outstanding which will be dealt within its proper place, arises out of a notice issued to Sir Edward Snelson, K. B. E., Secretary to the Govern ment of Pakistan, Ministry of Law, (who will hereinafter be referred to as "the respondent") to show cause why he should not be punished under the Contempt of Courts Act, 1926.
2. The material facts briefly stated are these. On the 15th of February 1960, the respondent gave a Talk at Rawalpindi to the Section Officers of the Government of Pakistan with regard to the Transitional Constitution of 1958. On the 17th of September 1960, two thousand pamphlets containing this Talk and some other matter were printed by the Manager, Government Pakistan 'Press, Karachi, as is clear from certain entries in the pamphlets themselves. Twenty‑five of these pamphlets were sent by the Director of Training and Ex‑officio Deputy Secretary to the Government of Pakistan, President's Secretariat, Secretariat Training Institute, Rawalpindi, to the West Pakistan Government and with his letter No. S. VIII‑3‑116160 dated, Lahore, the 10th of October 1960, Section Officer VIII, acting for the Additional Chief Secretary to the Government of West Pakistan, sent a copy of the pamphlet to the Registrar of this Court for information. As is usual when pamphlets are sent to the Registrar of this Court by Government, Central or Provincial, this pamphlet was circulated amongst the Judges of this Court stationed at Lahore and would have been sent to the Benches of the Court at Karachi and Peshawar in due course. Some of the Judges at Lahore read the pamphlet and as they were of the view that it contained matters open to grave exception, all the Judges were asked to read it before consideration of the question whether any, and if so, what action should be taken in the matter. When the matter came up for consideration on the 25th of October 1960, the Judges of this Court present at Lahore were of the view that as parts of the Talk of the respondent which occurred in the printed pamphlet, in paragraphs numbered by the Judges as 9 and 10, contained matter which, in addition to being entirely irrelevant to the subject‑matter of the Talk, was calculated to lower this Court in the eyes of those who heard the Talk as well of these who read the pamphlet and to undermine the authority of this Court, notice should issue to the respondent to show cause why he should not be dealt with under the Contempt of Courts Act, 1926, whereupon a formal order was passed by me which directed the respondent to appear in this Court on the 14th of November 1960. The last sentence of this order was to the effect that as usual in cases of this kind intimation should be sent to the Advocate‑General, West Pakistan. No notice was issued to those who have been, to some extent, responsible for publication of the Talk given by the respondent because the Talk having been given by a person who must have been presumed not to have broken the law, the other responsible for publication could, at worst, be held to have been guilty of a venial lapse. A day or two later his Lordship the Chief Justice passed an order that as the respondent was an important law officer of the Central Government, the case against him should be heard by a Bench of the three senior most Judges present at Lahore. On the 29th of October 19; 0, the order dated the 25th of October 1960 as well as paragraphs Nos. 9 and 10 of the Talk, a copy of which paragraphs had been sent to the respondent along with the notice, appeared in some newspapers. The notice, which conformed to the order, directed the respondent to be present at the hearing as it was probable that it would be necessary to ask him some questions. On the 31st of October 1960, Chaudhri Nazir Ahmad Khan, the Attorney‑General of Pakistan, presented before me an application on behalf of the Pakistan Government praying that it should be made a party to the case and notice should be issued to the Attorney‑General. This application was granted on the same day.
3. On the service on him of the notice to appear in this Court on the 14th of November 1960 to show cause why action should not be taken against him under the Contempt of Courts Act, the respondent presented a petition in the Supreme Court of Pakistan for obtaining special leave to appeal against the order This petition, if the press reports regarding the proceedings in the Supreme Court were correct, had the support of the Attorney General of Pakistan who appeared for the Central Government.
The petition was however, rejected by the Supreme Court of Pakistan on the 10th of November 1960. A copy of the order of the Supreme Court of Pakistan rejecting the petition has not been received in this Court so far, but if the reports in the press were correct, the petition was rejected on the ground that as this Court, as a Court of record, had exclusive jurisdiction to deal with a contempt of itself, the Supreme Court was not prepared to interfere at the stage at which the case taken was.
4. The case came up for hearing before the Bench nominated by his Lordship the Chief Justice on the 14th of November 1960 and the respondent appeared along with Mr. A. Haq, Advocate, to show cause against the notice issued to him, while the Pakistan Government which had become a party at its own request, was represented by Chaudhri Nazir Ahmad Khan, Attorney‑General of Pakistan. And now occurred the second of the unexpected events to which I have alluded in the first paragraph of this order. The first of these unexpected events was the application by the Attorney‑General of Pakistan to the effect that the Central Government should be made a party to the proceedings. This was an unusual application because as far as my knowledge based on some experience with regard to these matters goes the practice, which is probably based on some rules, is that whenever action is taken in a Court or by a Court against a public servant, Government leaves him to fight out his own battle and decides only after the determination of the proceedings by the Court A whether the public servant is to be paid the expenses incurred by him to defend himself. I have no doubt in my mind that the application of the Pakistan Government to be impleaded as a party in a case arising out of a notice to a public servant under the Contempt of Courts Act can claim to be entirely unique.
5. As I have already indicated, the second of the unusual events occurred in these proceedings on the 14th of November 1960. This was that instead of appearing in support of the notice issued to the respondent by this Court and thereby acting according to the decision of the Provincial Government with regard to cases of Contempt of Court communicated to the Registrar of this Court by the Law Department, Government of West Pakistan, letter g No. Genl. (91)/57/1828, dated the 21st of March 1958, which was to the effect that the Advocate‑General, the Additional Advocate General and Assistant Advocate‑General will appear in contempt cases before the High Court on behalf of the Court and not on behalf of the respondent, Mr. M. Anwar, Advocate‑General stated that he bad been instructed by the Provincial Government t4 pray, because the issue involved was delicate, for the adjournment of the case for one week to permit the Provincial Government to decide whether or not the Advocate‑General for the Province should appear in the case. I have already indicated that intimation regarding the issue of notice to the respondent had been sent to the Advocate‑General, West Pakistan, on the 25th of October 1960, and as the time at the disposal of the Provincial Government to decide the question mentioned by the learned Advocate‑General had been along enough his request was not acceded to. The press reports had made it clear that the Central Government had aligned itself with the respondent and it was considered necessary by the Bench to request Mr. Mahmood Ali Qasuri, an Advocate of this Court, to give his views in the matter to this Court, and it was heartening to note that Mr. Mahmood Ali Qasuri undertook without hesitation this duty which had been thrust unexpectedly on him. It is, however, somewhat gratifying that the Provincial Government agreed to pay to Mr. Mahmood Ali Qasuri such fees as the Bench may consider proper for rendering to the Court the assistance that should have been rendered by the Advocate General, West Pakistan. At the hearing arguments were addressed by Mr. A. Haque on behalf of the respondent, by Chaudhri Nazir Ahmad Khan, Attorney‑General of Pakistan, on behalf of the Pakistan Government as well as by Mr. Ghias Muhammad, Standing counsel of the Pakistan Government on behalf of that Government, on the last two days of hearing as the Attorney General had to leave for Karachi to appear in the Supreme Court which was in session there, and by Mr. Mahmood Ali Qasuri who appeared as amicus curiae at the request of the Court.
6. The respondent and the Central Government put in separate written statements and the contents of the written statement of the latter were the third unexpected event of these proceedings. This written statement reads as follows :‑
Written statement on behalf of the Central Government
"Respectfully showeth :‑
(1) The speech including the two paragraphs in question was delivered by Sir Edward Snelson, K. B. E., Secretary to the Government of Pakistan, Ministry of Law, Karachi, (respondent) in his official capacity, to the Section Officers of the Central Government stationed at Rawalpindi. It was exclusively meant for officials and no part of it could in view of the provisions of the Official Secrets Act, 1923, be disclosed to the public. The speech was later on printed and copies thereof were supplied in normal routine to certain offices of the Government.
(2) No official to whom the speech or copies thereof were addressed could under the law communicate the same to the public. So far as is known to the Central Government, the public at large did not come to know of this speech till it appeared in the press as an enclosure to the notice for contempt issued to Sir Edward Snelson.
(SJ.) Nazir Ahmad Khan, Attorney‑General of Pakistan."
It cannot escape the notice of anyone that this written statement had not said even a single word about the matter that was before the Court and merely hinted that by making paragraphs Nos. 9 and 10 of the Talk of the respondent as printed in the form of a R pamphlet a part of the judicial record of this Court and thereby making it a public document which could be published in the newspapers, the Judges of this Court had contravened the provisions of the Official Secrets Act of 1923. That the written statement did not bear any meaning other than that which its plain words conveyed is clear from the fact that even the learned Attorney‑General who had signed it for the Pakistan Government did not claim that it had any other meaning as well as from the fait that the notice that issued from the Court had said clearly that the offence was committed because this Court was sought to be lowered in the eyes of those who had heard the Talk and of those who had read the pamphlet and no reference had been made to the public learning about it. This plea was raised b: fore the Court dealing with the culpability or otherwise of the paragraphs in question and could be nothing but a hint that the sword of Damocles in the shape of appropriate action for contravention of the Official Secrets Act, 1923, hung over the heads of the Judges of this Court and therefore the Judges hearing the case should watch their steps lest they themselves and their colleagues come to grief. If anyone were to describe the written statement put in on behalf of the Pakistan Government as the least law respecting document ever presented by a responsible party before a Court of Law of any civilised country, he would not be held by an impartial critic to have indulged in mis-description. By the laws of no civilised country is it open to any person, howsoever highly placed, and whether that person be a natural person or a juristic person, to say or do anything which may even hint at a threat to the Court, however, humble that Court may be, and this applies with greater force to persons who are parties to the proceedings in which the threat is held out or is hinted at. This sort of conduct would amount to Contempt of Court by the laws of all civilised countries, including America where the law relating to Contempt of Court is less stringent than in Great Britain and the Common wealth countries. The written statement put in on behalf of the Central Government makes it clear that its author was either entirely ignorant of the law relating to Contempt of Court or else had scant regard. for it. It is a matter of no samll regret that a written statement which clearly held out a threat to the Court to which it was presented should have been presented in a case in which the original respondent was the Secretary of the Law Department of the Government of Pakistan, of which department the Minister, Mr. Muhammad Ibrahim, had for some years been a Judge of a High Court in Pakistan and as such bad dealt with law judicially and has for a couple of years been dealing with law in an executive capacity as the Minister for Law. The objectionable nature of the written statement is no whit reduced by reason of the fact that the members of the Bench hearing the case had not allowed the insidious exhibition of the iron hand through extremely sizable holes in the velvet glove‑the only vestige left of the velvet glove being the words "respectfully sheweth" with which the written statement opens -to deter them from the performance of their delicate duty.
7. It is true that though final orders in that regard are passed by the President of Pakistan, the Pakistan Government, and especially the Law Ministry of that Government, has a say in the matter of appointment and advancement of Judges of the High Courts. However, no law in force in Pakistan permits any one how‑high‑so‑ever to try to affect the decision of a Judge with regard to a judicial matter before him. And though while dealing with a case a Judge may appear to hold a position superior to that of a Minister of the Central Government, no Judge can interfere in the work of the Law Ministry or indeed of any public servant in Pakistan. This superiority of a public servant over another to whom he is inferior in some other respect, which is sometimes an enigma to laymen, is a necessary concomitant of orderly Government in any State in which judicial and administrative functions are not vested in the same authority. When the Central Government of Pakistan is a party in a proceeding before a Court of law, however humble the Court may be, it has no better rights than any other party to the proceedings before that Court. This is so well settled that I would not have mentioned it had not the written statement put in on behalf of the Central Government made it appear that this elementary but cardinal principle of law was ignored by those who were responsible for producing before the Court the written statement which, as I have already said, is open to grave objection. As far as my knowledge goes, the only other person of eminence who held out a threat to a Court in the course of judicial proceedings was the son of a king of England who walked into a Court and tried to interfere with the course of justice. The result was that the monarch's eldest son who was to ascend the throne after his father, was sentenced by Lord Chief Justice Cascoigne to a term of imprisonment for Contempt of Court. This case finds mention in Chapter III of Oswald's book on Contempt of Courts. The authority for what is written therein is the book "Govenour, ed. Croft", Volume 2, by Sir Thomas Elyot. The passage from Sir Thomas Elyot's book has been reproduced in Oswald's book in the English language used near about the time when the incident occurred and in the English language in use at the present time reads as under :‑
"The most renowned prince King Henry the fifth, late King of England, during the life of his father was noted to be fierce and of wanton courage. It happened that one of his servants, whom he favoured very much, was arraigned before the King's Bench for felony committed by him and the prince learning of this in furious rage came hastily to the bar where his servant stood as a prisoner and commanded that he be set at liberty, whereat all men were abashed, except the Chief Justice, who humbly exhorted the prince to be contented that his servant might be ordered according to the ancient laws of the realm, or if he would have him saved from the rigor of the laws, that he should, if he liked, appeal to the King, his father, to grant him his gracious pardon. By this answer the prince was not appeased, but rather more inflamed, and made an attempt to take away his servant. The Judge considering the perilous example and inconvenience that might thereby ensue with a valiant spirit and courage commanded the prince upon his allegiance to leave the prisoner and depart his way. As the prince was still in fury, he in a terrible manner, came up to the place of judgment and the men present in Court thought that he would slay the Judge or cause him some injury. The Judge, however, sitting still, without moving, declaring the Majesty of the King's place of judgment, and with an assured and bold continuance, addressed the prince with these words
Sir, remember yourself ; I keep here the place of the King, Your sovereign lord and father, to whom you owe double obedience. In his name, I charge you desist from your wilful ness and unlawful enterpise and thereby give good example to those who hereafter shall be your subjects. And now for your contempt and disobedience I send you to the prison of the King's Beach where I commit you and direct that you shall remain there until the pleasure of your father, the King, be further known.'
Upon these words the prince was abashed and laying his weapon apart and doing reverence, departed and went to the King's Bench as he was commanded. His servants felt disdain ful at this and came and told the King of what had happened, whereupon, in all gladness, the king holding his hand upward said in a loud voice : O merciful God, how much am I above all other men bound to your infinite goodness, especially because You have given me a Judge who fears not to administer justice and also a son who can suffer and obey justice' ."
I make no secret of this that if the learned Attorney‑General had disclosed‑which in spite of repeated questions by me he did not do‑, the name of the person who had directed him to put in on behalf of the Central Government the written statement which was not only irrelevant but threatening also, I would have unhesita tingly dealt with the person in the same manner in which Lord Chief Justice Cascoigne had dealt with the Prince of Wales. This action of mine would have been in accord with the law of the land and I have no doubt in my mind that even if the erring party were a Minister in the Cabinet, my action would have been accorded the same approval by the Head of the State as the action of Lord Chief Justice Cascoigne was accorded by the Sovereign of England whose son and heir had been sent to jail by that Judge.
8. I would have been a happier man if an occasion to find fault with the written statement put in on behalf of the Central Government had not arisen, but the occasion having arisen I would have failed in my duty if I had omitted to point out in what respects the document was open to exception. In view of the fact that the written statement in question purports to have the blessings of the Central Government of Pakistan, overlooking its defects would perhaps have been the safer course for me and I would have followed that course had it not been for the certain knowledge that if, for fear that what I say may at some future time be sought to be used by interested persons as the documentary proof of my incompetence, I omitted to deal with this written statement in precisely the same manner in which I would have dealt with it if it were that of a private party, the oath of office as a Judge of the High Court of West Pakistan, whereby I solemnly affirmed to do justice between the parties before me without fear or favour, affection or ill‑will, would for a very long time, mockingly ring in my ears. Moreover, I believe that there is a good deal of truth in the following lines :‑
"He either fears his fate too much or his deserts are small ; Who does not put it to the touch to gain or lose it all."
Extremely irregular in the circumstances of the present case though it would have been on the part of the respondent to have done so, I would have preferred that the learned Attorney‑General reply to my questions on the point that the written statement was based on the instructions given by the respondent, purporting to act for the Central Government ns he is perhaps competent to 49 under the Rules of Business. If the written statement was based on the instructions given by the respondent, it would, to a slight extent, lose its objectionable character because it could then be construed as an attempt of a man finding himself in a tight corner to extri cate himself by every possible means, but the learned Attorney- General did not state that the respondent had given him the instructions. I might mention that even if some unbiased person were to say that I have erred in dilating on the objectionable nature of the written statement of the Central Government, I would have no regrets because if I have erred in a good cause, that cause being an attempt at keeping scrupulously pure and entirely unadulterated the stream of justice not in theory only but in practice also, not merely in the speeches of those in power from the public platform but also in their actions at the bar of the Courts as well.
9. But the unexpected events which I have hinted at in the first paragraph of this judgment have not ended and another yet remains. This was that whenever it was pointed out to Chaudhri Nazir Ahmad Khan, the learned Attorney‑General of Pakistan, or Mr. Ghias Muhammad, the learned Standing Counsel of the Central Government, that the thing said or done by him was not allowed by law, the reply was that the thing had been done or said, as the case might be, under the orders of the Central Govern ment. I confess that this answer amused me not a little and in fact reminded me of the early days of my practice in the Courts of Magistrates where it was not unusual to hear the police officer conducting the prosecution telling a Magistrate in plain words that the Superintendent of police was opposed to the grant of bail to an accused person or that that exhalted personage would not like the acquittal of an accused person. The name of the Central Government was mentioned by both its counsel in precisely the same manner as I had heard the name of the Superintendent of police mentioned in Courts of Magistrates about a quarter of a century earlier. I, however, hope that the learned counsel who appeared for the Central Government did not believe that the words "Central Government" were an "open Sesame" which would help them in demolishing all barriers set up by the law of the land. The written statement of the Central Government was presented by the learned Attorney‑General and when after going through it I pointed out to him that it offended against the law of the land, I was surprised to hear him reply that he was performing his duty as he was putting it in under the orders of the Central Government.
Again, when Mr. Ghias Muhammad wanted to refer to a speech made by an ex‑Chief Justice of Pakistan and to two made by the present Chief Justice of West Pakistan, I pointed out to him that as those speeches had not been the subject of decision by any E Court, a reference to them was entirely irrelevant for the present proceedings, and he came out with the reply that he had been instructed by the Central Government to refer to those speeches during the course of his arguments. In what respect the person who issued these instructions on behalf of the Pakistan Government thought that the case of the respondent would be improved by a reference to these speeches passes my comprehension. It may be that the object of the person who instructed that a reference to the speeches of the Chief Justice of this Court, published in the press very long ago, be made was to point out as politely a s he could that an application will be made to take proceedings against he Lordship the Chief Justice on the basis of these speeches ; but if that was the object it is hardly open to question that it was reprehensible for more reasons than one.
10. I have mentioned in paragraph 7 that when Government is a party to a proceeding in a Court of law, it has no better status and no more rights than any other party, however humble that party may be, and though the Court in which the proceedings are taken be the lowest in the land, and I would here say that in law the position of counsel who appear for Government is precisely the same as that of a counsel of any other party. If an argument has no substance because of irrelevancy when addressed by a counsel of a private party, it clearly does not become relevant or gain merit by reason of the fact that the counsel who addressed it is a counsel for Government who claims that his client insists that a particular argument should be addressed. The law draws no distinction between the rights of a counsel who appears for Govern ment and one who appears for a private party, and it is highly lamentable that it should have been necessary to point this out in this case which was conducted on behalf of the Pakistan Govern ment by the Attorney‑General and its Standing Counsel. Counsel appearing for Government should not lose sight of the fact that they are appearing before a Court of law and the fact that the Pakistan Government is the strongest party that can come before any Court in Pakistan cannot give them more protection than the counsel of any other party to a proceeding in Court enjoys. If, for example, the act of a counsel of a private party amounts to contempt of Court or professional misconduct, the same conduct of a counsel appearing on behalf of Government would amount to contempt of Court or professional misconduct, as the case may be. If illegal orders of their clients are obeyed by members of the authority, simply because they are given by persons who are in authority, can the members of the Bar justifiably complain‑and one hears them complain sometimes‑that they are no longer commanding the respect which they used to If the members of the Bar do not show regard for the law and have not the courage to tell their clients that no one can transgress the law, especially in the presence of a Court of law, they fail in their duty. And if some counsel blindly act just as their clients want them to act, they do so at same risk because the fact that they do nothing but what their clients wanted them to do cannot avail them. All legal practi tioners, be they even employees of the Pakistan Government or a Provincial Government, are officers of the Court in which they appear to plead or act for their clients and if they do not refrain from carrying out the illegal orders of a client‑which will not happen unless the client is a mighty or a persuasive personality they are likely to find themselves deprived of the privilege of plead ing in Courts. Proper decorum is enjoined on all those who appear in Court as counsel, parties, witnesses or spectators. This is so even here the presiding officer does not have a personality that commands respect, because he is entitled to respect by reason of the fact that while sitting in the seat of justice he represents the State. To some persons I may, perhaps, appear to be acting as an unsolicited adviser of the legal practitioners, but unfortunately some things done during the proceedings of this case have indicated that clarification of the position with regard to proceedings in Court was necessary. As something with regard to the duties of legal practitioners, though in another connection, was said by the highest Court in Pakistan in the case reported as Imran Ullah v. The Crown (P L D 1954 F C 123), I feel confident that I have not drifted into irrele vancy by discussing in some detail the duties of legal practitioners towards the Court. And I might here say that by failing to dis close the name of the person who instructed him to present the written statement on behalf of the Pakistan Government the learned Attorney‑General bad omitted to disclose what he could not refuse to disclose. On one of the occasions that I asked him to disclose the identity of the person who had given him the instructions to put in the written statement that was presented on behalf of the Pakistan Government, the learned Attorney‑General replied that he had been instructed by the Pakistan Government. This reply was uninformative because the Pakistan Government can speak or write through a living person only. On another occasion the reply of the learned Attorney‑General to the same question was that though normally instructions from the Pakistan Government came to him from the Solicitor to the Government of Pakistan, that officer was not the source of instructions in this case and that he wanted time to consider whether he should disclose the identity of the person who had given the instructions. This reply was fully as uninformative as the other, and the identity of the person has not been disclosed so far. I am certain, however, that this reticence on the part of the learned Attorney‑General was not actuated by a desire to prevent this Court from getting at the truth but by some other consideration which he believed to be weighty.
11. I will now take up the question whether or not the respondent had been proved guilty of contempt of Court and will in this connection, first of all, deal with some contentions of a general nature that were raised. I have indicated in paragraph 2 of this judgment that the decision to issue notice was taken to a meeting of the Judges which was held to determine whether any, and if so what, action should be taken with regard to the Talk of the respondent given on the 15th of February 1960. Two courses were open to the Judges, one being to send a complaint to the Central Government and the second to take action under the Contempt of Courts Act, and the latter course was followed. The position which was taken on behalf of the Pakistan Govern ment during the proceedings of this case has proved that in decid ing to take action under the law of the land rather than by a complaint to the Central Government the Judges had adopted the better course. The main reason why this course was adopted at that time was that the pamphlet, of which as I have said already, two thousand copies were prepared, was printed at public expense and would on the face of it appear to have the support of the Pakistan Government. It was deemed inconceivable that a pamphlet which dealt with so important a subject as the Transitional Constitution of Pakistan which had been printed at public expense had not been read by one of those in Government who would notice that paragraphs No.s 9 and 10 of the Talk were irrelevant to the subject on which the respondent had been asked to give the Talk and yet the distribution of the pamphlet to Government servants was not stopped. The Judges expect the same protection by Government as any of its servants, and the Talk having been printed at the public expense without any objection from Government, the Judges had no course open to them but to take action under the Contempt of Courts Act. A contention was half‑heartedly raised in this Court that the respondent was, to some extent, prejudiced by reason of the fact that all the Judges present at Lahore on the 25th of October 1960 had decided upon the issuance of the notice and the three hearing the case had attended the meeting in which this decision was taken. No decision on the question had been arrived at in the meeting of the Judges and all that was said in the meeting was that prima facie para graphs Nos. 9 and 10 of the Talk contravened the provisions of the Contempt of Courts Act under which action should be taken. The law is clear on the point that a Judge who had, at the preli minary stage, considered the question whether or not proceedings under the Contempt of Courts Act should betaken is not precluded 1 from hearing the case. There are a large number of cases on record in which a Judge who had been maligned, and maligning whom was considered to be contempt of Court, had sat on the Bench which heard the case. One case in point is that reported as Emperor v. Publisher Daily Gazette' Karachi (A I R 1940 Sind 239) in which all Judges of the Sind Chief Court had decided to issue notice for contempt of Court.
12. I will not enter into any lengthy discussion of the ques tion why it was considered necessary to invest superior Courts with powers to punish for contempt s of themselves and of the Courts subordinate to them and will content myself with saying that this power exists in superior Courts in all civilised countries of the world. A layman does not know that Judges hate to be arbiters in their own cause, but as the breach of law which they have to consider while dealing with contempt of Court cases con cerns the Court rather than an individual, they are presumed to be B above all personal considerations in the matter. Speaking for myself, I have punished only three persons so far under the Contempt of Courts Act during my judgeship of over ten years and none of those persons had done or said anything against me. In a matter which, in one sense, concerns the Judges themselves, because it concerns the Court of which they are Judges, they are very careful to see that no injustice is done to any person and that their personal feelings do not affect their judgment, and if they do not act in this manner, they signally fail in their duty.
13. The learned counsel for the respondent argued that because the Talk was given as long ago as the 15th of February 1960, no action should have been taken in the end of October this year as the thing was about eight months old. The narration of facts given by me in paragraph 2 of this judgment will have L made it clear that it was in third week of October 1960, for the first time that the Talk of the respondent came to the notice of the Judges of this Court. It is not a case where action had been delayed, because soon after the Judges became cognizant of the Talk of the respondent, which is the subject of these pro ceedings action was taken. But even if the Talk had come to the notice of the Judges soon after it was given, action could have been taken on the date it was taken, as no provision of law says that the period of limitation for taking action for contempt of Court is any different from that in the case of any other offence. The law is that there is no limitation for such action and even an extremely delayed action, though it would have been open to objection on other grounds would not have been open to any legal objection.
14. Coming now to the passages about which notice was. issued to the respondent, it should be borne in mind that the Talk which the respondent gave related to the Transitional Con stitution of Pakistan as contained in the President's Order (Post Proclamation) No. I of 1958, known as Laws (Continuance in Force) Order, 1958. After dealing with some other matters the respondent said in his Talk that the stand of the Law Ministry of Pakistan to the effect that the sovereign power lay in the Governor‑General and not in the Constituent Assembly had been proved to be correct as the decision of the Federal Court of Pakistan in Maulvi Tamizuddin's case would show. He explained some provisions of the President's Order (Post‑Proclamation) No. 1 of 1958, and then came to the discussion with regard to writs. This is what he said on this subject :‑
"9. I think everybody has heard about the writs or, as the Law Ministry prefers to call them‑to indicate the source of the power‑ the prerogative writs. Between 1956 and 1958, the High Courts had used the language of the 1956 Constitution‑with its reference to orders and directions in the nature of writs‑to claim a jurisdiction to interfere with the Government itself without reference to the strictly defined frontiers of the prerogative writs. A Court can issue a writ only because the sovereign function is to that extent delegated to it by the Sovereign, that is to say, by the State. Clearly the delegate cannot exercise the power against the Sovereign itself, and that has been made clear over centuries of decisions by the Courts in England where the writs first originated by delegation from the King, and this has been followed in the United States where the sovereign power descended to the people and is exercised in their name by the President. As an American Judge recently said :
There cannot be two sovereigns, and the sovereign will not issue a prerogative writ against itself'. The Law Ministry has had to appeal a large number of times to the Supreme Court to have the position properly established, and has succeeded in every appeal but one. All this has cost a very great deal of money, and to try and put the situation right without having to spend more money on more appeals a clause was inserted in the Order we are discussing giving the High Courts the power to issue the named 'writs' (not orders or directions' and so on, but writs) of mandamus and the rest. This was to indicate as politely as possible, that a writ was a writ, confined to known limits, and the limits could not be exceed ed. I have to confess that, even with this civility, we have not entirely succeeded even yet, but this clause on the one side, and some very severe observations by the Supreme Court on the other, have at least had the effect of indicating that after all there are limits and that the limits must be observed. The great thing, in any orderly system of Government (and without orderliness there is chaos) is that every organ of the Government should be best adapted to the work it has to do and should know what that work is and what its own frontiers are. This avoids duplication. It avoids fraction. It prevents usurpation of function and consequent uncertainty, with all the public confusion and private misery that it can lead to."
10. I apologize for taking up so much time over this Order, but on it the whole fabric of the constitutional Government of the country rests until we have the new Constitution. Perhaps you would have wished me to say something about the services, seeing that what was originally a single paragraph, Article 6, has now been increased to a further six paragraphs, some modify ing the terms and conditions of service already guaranteed‑but not all : one of the additions establishes the power to grant extensions of service, a power which was denied by the High Court. We have been able to understand the judgment We would, of course, have appealed against it, and have no doubt we should have succeeded, but there was no time‑a certain loan from abroad was made conditional upon the con tinued retention of certain people, and since the High Court had denied the power to retain, and we could not wait for the months an appeal would take, the existence of the power was formally asserted in an explanation. We chose this particular way of doing things, if you are interested to know, so as not to concede that the poker had to be created : We took it for granted that, notwithstanding the judgment, and in order not to prejudice our appeal if we ultimately did appeal in any other case, the power does exist."
15. It will be noticed that this part of the Talk is entirely incongruous with other parts of it and, at any rate, no one who reads the Talk from the beginning can easily understand how the question of the decisions of the Judges of the High Courts in writ petitions presented against Government had cropped up. The purpose for which the Government had desired the respon dent to give the Talk was to explain the Transitional Constitution of 1958, and one fails to see how, even if the views of the respondent be assumed to be correct, the question arose that the High Courts in Pakistan had completely failed to understand in what cases the powers to grant writs could be exercised. The manner in which the High Courts have been brought into the discussion makes it clear that the respondent wanted to tell his audience that the High Courts in Pakistan were manned by incompetent people who did not understand a branch of law which they had been administering for about five years. In the tenth paragraph of the Talk the respondent made a reference to a judgment of this Court, the correctness of which he incorrectly asserted had not been tested by an appeal to the Supreme Court. With regard to this judgment the respondent said is unequivocal terms that it was incomprehensible and added that if an appeal had been taken against it, there was no doubt that the appeal would have been accepted. How any person can say what the decision of a court would have been in any particular case is beyond my comprehension, and if the respondent had prophesied what the decision of this Court in any particular case would be, as he has done with regard to the Supreme Court, it is by no means unlikely that action under the Contempt of Courts Act would have been taken against him. It will also have been noticed that the respondent had told his audience that though the Law Ministry, of which Ministry, I might mention, the respon dent has been the Secretary for about ten years, had been trying to impress upon the Judges of the High Courts that a writ was a writ and nothing more than a writ, it had taken some very severe remarks of the Supreme Court to make the Judges of the High Courts understand that obvious thing and that even the severe remarks of the Supreme Court had not succeeded entirely. The burden of paragraph No. 9 is that in spite of the fact that no writ could issue against Government and the fact that all appeals in which the Law Ministry had raised this point before the Supreme Court had succeeded, the High Courts had not been able to fully grasp the implications of the words used by the Legislature. It says that the Judges of the High Courts had been issuing writs to Government though no writ could issue to Government and the Judges had been pressing into service the words "directions and orders" which occurred in the Constitu tion of the Islamic Republic of Pakistan, which came into force on the 23rd of March 1956, and was abrogated on the 7th of October 1958, for issuing writs to Government which they could not do. Anyone reading the pamphlet would think that the meaning of the Talk, patent at some places and latent at some was that the Judges of the High Courts in Pakistan were either half‑witted persons who did not understand the law or persons who deliberately misinterpreted it.
16. In the written statement which he put in on the 14th of November 1960, the respondent in addition to saying that he had no intention of committing contempt of Court, said that the Talk in question was given at the invitation of the Establish ment Division of the President's Secretariat to the Section Officers attached to different departments of the Central Govern ment with a view to acquainting them with the new Constitutional position, that later on Section Officers stationed at Karachi who had to take departmental examination represented to the Establishment Division that as they had not had the benefit of hearing the talk, they should be supplied with its copies, whereupon the Establishment Division sought the permission of the respondent for the publication of the Talk to which the respondent agreed on the express understanding that the printed copies should not go outside Government circles, that having been printed under these circumstances, the Talk was marked for "official use only", that a reference to the different decisions of the High Courts by which he meant both the High Courts, was made with a view to impressing upon the Section Officers who heard the Talk the importance of keeping within their respective spheres, and that in a progressive society legitimate criticism of official acts, including judgments of Courts of Justice, is 'always treated with consideration and favour. On the 14th of November 1960, the respondent was asked certain questions by both my learned brothers who sat on the Bench with me and by me for the purpose of elucidation of certain points. In the replies that he gave to certain questions the respondent admitted that in paragraph 9 of the Talk he had intended to say that writs could not issue to Government and that before saying that he had read Article 170 of the abrogated Constitution. He was asked whether it was within his knowledge that the Supreme Court of Pakistan had laid down in any case that a writ,. direction or order could not issue to Government, Provincial cr Central, under the abrogated Constitution and he said that he did not know of any such case. He added that in every case in which a writ had been issued against Government instructions had been given to council who acted for the Government to raise the point in the Supreme Court that a writ could not issue against Government and went on to say that he was inclined to think that in spite of the instructions counsel who appeared on behalf of the Government in the Supreme Court did not raise the point in the Supreme Court. In view of this statement it is not open to question that what he said and intended to say in paragraph 9 of the Talk was that though a writ could not, under and circumstance, issue to Government under Article 170 of the abrogated Constitution, the High Courts in Pakistan had been issuing writs against Government. To the question why he objected to the general public knowing the purport of his Talk which related to a matter of such great importance as the Transitional Constitution of Pakistan, the respondent's reply was that the Talk contained the views of the Government and was intended to be confined to Government circles only. At another place in his statement the respondent said that he had given the talk within Government and, therefore, communicated it under official direction and for that reason did not want it to be published. In answer to another question the respondent replied that the Government would not have wished to make public the passages relating to the High Courts and when asked to say why the Government should feel embarrassed by the public knowing the contents of paragraphs 9 and 10 if they contained the opinion of Government about the High Courts, he came out with the reply that he did not say that those were the views of the Government. When asked how occasion for expressing his views to the Section Officers about the exercise of writ jurisdiction by the High Courts had arisen, the respondent replied that he was endeavouring to explain to the Section Officers the general constitutional position and was doing so in his capacity of Law Secretary. The respondent was asked whether it was not possible to use polite language with regard to the judgments of the High Court including those which had not been set aside, and his reply was that he had written the Talk in the midst of pressing official pre‑occupations and that if he had had more time he might have used different language. He asserted, however, that nothing in the language he had used was meant in any way to ridicule or to be derogatory to the High Courts.
17. After his statement finished on the 14th of November the respondent was allowed to go but he was informed by the Court that be would have to appear if required by the Court. On the 18th of November 1960, three affidavits were placed on the record by the learned counsel for the respondent. One of these affidavits was of the respondent wherein he averred that the reference in paragraph 9 of the Talk to the acceptance of all appeals but one was to appeals In service matters and that when be alluded to "every organ of the Government" in the last sentence but three of paragraph 9 he had in view organs of the Government other than those mentioned by him in his oral statement on the 14th of November 1960, before the Court and that it was not the High Courts alone that he had in view. The second affidavit was by Mr. Iftikhar‑ud‑din Ahmad, Attorney, Supreme Court, Lahore, wherein it was averred that in a number of appeals represented to the Supreme Court in 1960, against the decisions of the High Courts whereby writs had been issued against Government a ground has been taken that a writ cannot issue against Government in view of the fact that clause 11 (4) of the Laws (Continuance in Force) Order, 1958, does not contain the word "Government". This affidavit is of no avail because in paragraph 9 of the pamphlet the respondent had said that between 1956 and 1958, the High Courts had issued writs against Government by placing reliance on the words "orders or directions" which occurred in the Constitution of the Islamic Republic of Pakistan, and had stuck to that position when making his statement in Court on the 14th of November 1960. The third of these affidavits was that of Mr. Muhammad Gul S. K., Solicitor to the Government of Pakistan. This affidavit is to the effect that the Law Ministry has all along been of the view that a writ cannot issue to Government. To this affidavit are attached copies of certain notes recorded by Mr. Muhammad Gul with regard to certain cases. None of these notes is of any relevancy, not only because they do not say that between 1956 and 1958, no writ could issue to Government but also because they are to the effect that by the promulgation of President's Order I of 1958, [Laws (Continuance in Force) Order, 1958], the power to issue writs to Government was taken away. Whether the power has been taken away or not is not at all germane to the point under consideration.
18. In paragraph 16 I have given my views on the plain meaning of the two paragraphs of the Talk of the respondent which are under consideration in this case, and will now consider whether the respondent had any basis for making the assertions he made about the High Courts. The purport of the first few lines of paragraph 9 is that between 1956 and 1958 the High Courts in Pakistan had been issuing writs to Government, which they could not have done. The reasoning adopted was that the power to issue writs was delegated to Courts by Government and conse quently no writ could have been issued to Government. I might point out that in Pakistan the power to issue writs was given by the Legislature and not the Government but that point need not be emphasised. The respondent was clearly talking of the period between 1956 and 1958, the period during which the abrogated Constitution was in force. Article 170 of that law was in the following terms :‑ "170. Notwithstanding anything in Article 22, each High Court shall have power. throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government, directions, order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by part II and for any other purpose."
Can anyone who has read Article 170 even once‑and I can safely presume that the respondent had read this Article a number of time justifiably say that between 1956 and 1958, the High Courts in Pakistan did not possess the power to issue writs against the Central or a Provincial Government in Pakistan In his statement before the Court the respondent tried to indicate that his impres sion all along had been that even under the abrogated Constitu tion a writ could not be issued to Government. I would have believed that assertion of the respondent if he were not an educated man who has held the post of the Law Secretary to the Government of Pakistan for about ten years. If a person having the qualifications that the respondent possesses finds a Court reluctant to believe his assertion that his impression was that even Article 170 of the abrogated Constitution, which Article has been reproduced above, did not authorize the High Courts in Pakistan to issue writs against Government he should have no cause to complain. In the Talk the respondent went on to say that in all cases but one in which writs had been issued to Government appeals by Government to the Supreme Court had succeeded. When he was malqng his statement in Court the respondent did not say that by the words used by him in this connection he had intended to say that all appeals but one in cases dealing with service matters had been accepted, but in his affidavit which was produced by his learned counsel on the 18th of November the respondent said that what he had intended to allude to was cases about service matters. Whether this change of his position was necessitated by a realization that the assertion that the Supreme Court had accepted all appeals except one against writs issued to Government was not correct is a question which I do not consider necessary to determine and will content myself with saying that if while giving the Talk he had in this context appeals to the Supreme Court in service matters in view he had not taken his audience and his readers into his confidence. I might add that even the assertion of the respondent that all appeals to the Supreme Court in cases in which writs had been issued in service matters had been accepted with the exception of only one may not be correct. And I might add further that though I have gone through all the judgments of the Supreme Court dealing with the point under consideration I have not come across an observation by their Lordships of the Supreme Court to the effect that High Courts have no jurisdiction to issue writs in service matters. The judgments of their Lordships show that appeals were accepted because the facts did not in their Lordships' view justify the issue of a writ.
19. But the impeachment of the highest Courts in the Provinces of Pakistan, namely the High Courts, does not finish there. The respondent went on to say in paragraph 9 of the pamphlet that in spite of the fact that the Law Ministry had tried to point out to the High Courts the limits of their jurisdiction and in spite of some very severe remarks of the Supreme Court, they had not been able to fully grasp the law about writs and the High Courts had been encroaching on the preserves of the Government. The paragraph ends by saying that if the frontiers between the function of the different organs of the Government are not kept in view, the result is a chaos, but if the frontiers are observed, then no usurpation of functions results and uncertainty with all the public confusion and private misery that usurpation of func tions can lead to is avoided. When making his statement before the Court the respondent did not say that in this part of the Talk his reference was to any other organ of the Government than the High Courts in Pakistan, but in his affidavit he has asserted that his intention was to tell his audience that if the frontiers of functions are not kept in view, chaos and disarray results. I am prepared to accept the assertion of the respondent in the affidavit that he did not intend to say that it was only the usurpation of power by the High Courts that will lead to chaos and other things mentioned by him, but the question is whether his audience and those who read the pamphlet will think of any other organ of the Government than the High Courts which had led to chaos and disarray with all its public confusion and private misery, when no other organ of Government has been mentioned even once in the paragraph in question. The answer to this question has to be in the negative.
20. In the tenth paragraph of the Talk the respondent dealt with a judgment of this Court in Writ Petition No. 741 of 1957 which was heard by my Lord the Chief Justice and my learned brother Masud Ahmad, J., on the 22nd of November 1957, and this fact led the learned Chief Justice to decide that he should not be a member of the Bench which heard the present case, though there would have been no bar to his doing so. That case is Mr. A. R. Azar v. The Federation of Pakistan etc, (P L D 1958 Lah. 185). It was held in that case that if the age of compulsory retirement of an officer was fixed by rules, that officer could not be granted extension of service. The respondent said that the Law Ministry had never been able to understand that judgment and in other words said that the judgment was entirely unintelligible. He added that as the time at the disposal of the Government, for the reasons mentioned by him, did not permit of an appeal to the Supreme Court, no appeal was taken to that Court. The assertion of the respondent that no appeal was taken to the Supreme Court against the above‑mentioned decision of this Court was evidently based on lack of information, because this assertion was wrong. I say that the assertion was wrong because Civil Petition for Leave to Appeal No. 7 of 1957 was presented to the Supreme Court and was dismissed on the 7th of March 1958. The tone in which the judgment of this Court, which had not been reversed by the Supreme Court, was commented upon was, to say the least of it, not proper, and if an officer of the position of the respondent uses the language that has been used in paragraphs 9 and 10, nobody can think that the use of that language was not intentional.
When questioned on the 14th of November 1960, whether he could not have used more polite language towards the High Courts, the respondent said that the defects in the language, if any, were one to his being too busy with other matters of official nature. There is nothing on the record to indicate that the time that elapsed between the request to the respondent to give the Talk and the actual giving of the Talk was too short, but assuming that it was short it was clearly the duty of the respondent to see that the' language he employed was not offensive and discourteous. It' should not be forgotton that English, i.e., the language in which the Talk was given, is the mother tongue of the respondent, and I cannot bring myself to believe that the respondent required con siderable time to couch the Talk in words which would not be open to exception. If, therefore, the tone of the Talk is offensive, a Court of law would be justified, by reason of the rule that every one must be presumed to intend the natural and ordinary conse quences of his acts, in presuming that the Talk was intentionally offensive. I am clearly of the view that the tone of both the paragraphs of the Talk which are under consideration was offensive and I am confirmed in this view of mine by the fact that my learned brother Ortcheson, J., who can speak with authority by reason of the fact that the language in which the Talk was given is as much his mother tongue as that of the respondent, agrees with me entirely.
21. Neither the Contempt of Courts Act, 1926 nor any other statute in force in Pakistan gives a definition of the expression "Contempt of Court." The provisions of the Contempt of Courts Act, 1926, recognise that the High Courts possess power to punish for their own contempt just as the Judges of superior Courts in M England possess the power under the Common Law. For the definition of the expression "Contempt of Court", therefore, one has to turn to the England law. Blackstone has given a catalogue of various instances of contempt of Court. This is what he says:
"Some of these contempt may arise in the face of the Court, as by rude and contumelious behaviour, by obstinacy; perverse ness or prevarication, by breach of the peace or any wilful disturbance whatever; others in the absence of the party, as by disobeying or treating with disrespect the King's writ or the rules or process of the Court, by perverting such writ or process to the purpose of private malice, extortion or injustice, by speaking or writing contemptuously of the Court, or Judges acting in their judicial capacity, by printing false accounts or even true ones, without proper permission, of causes then pending in judgment and by anything in short that demonstrates a gross want of that regard and respect which when once Courts of Justice are deprived of their authority, so necessary for the good order of Kingdom, is entirely lost among the people."
According to Lord Hardwick contempt is of three kinds
(1) Scandalizing the Court itself.
(2) Abusing parties who are concerned in the causes in presence of Court.
(3) Prejudicing the public against persons before the cause is heard."
.
Another definition of contempt of Court may be found in the undelivered dictum of Justice Wilmot in the well‑known Alvin case who said as under :
"The arraignment of the Justice of the Judges is arraigning the King's Justice. It is an impeachment of his wisdom and goodness, in the choice of his Judges and excites in the minds of the people a general dissatisfaction with all judicial deter minations and indisposes their minds to obey them and whenever men's allegiance to the Law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of Justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King's Justice is conveyed ,, to the people."
22. Before proceeding further I will deal with some judicial decisions which were cited by the learned counsel who appeared in the case. Though the written statement presented on behalf of the Central Government did not even hint that it was being pleaded that contempt of Court had not been committed by the respondent, the learned Attorney‑General was allowed to address arguments on the point. His main reliance was on a case from America which is reported as Case No. 11 at page 695 of United States Supreme Court Digest, Volume 5. The decision was to the effect that if the proceedings of a Court are not interfered with by the act under consideration, no contempt of Court was committed. In paragraph 6 of this judgment I have indicated that in the United States of America the law of contempt is not gs stringent as in England and the Commonwealth Countries. I cannot, of course, speak with any confidence on the point, but it appears to me that the reason for the law of contempt being not very stringent in the United States of America is that the freedom of speech guaranteed by the Constitution of that country is almost unlimited, and that at least in some of the states of the United States of America Judges are not appointed but elected for which reason perhaps, their conduct is more open to the scrutiny of the public than in any other country. It will perhaps, be pertinent to ‑point out that though the Constitution of the Islamic Republic of Pakistan which was abrogated on the 7th of October 1958, by its 8th Article guaranteed freedom of speech to the citizens of Pakistan, it made it clear that the freedom was subject to the law relating to contempt of Court and some other offences. Consequently, even if the abrogated Constitution had been ‑in force, the law of contempt of Court would have remained intact in spite of the fact that freedom of speech was guaranteed. In the last paragraph I have mentioned that the contempt of Court Act, 1926, preserved the powers of the High Courts to punish for their own contempt. The power that was preserved came to the High Courts from the Common Law of England and not from the Law in force in the United States. The authority relied N upon by the learned Attorney‑General has, therefore, no applica tion. And though the learned Attorney‑General was not prepared to go to length of supporting every contention of Mr. A. Haque, the learned counsel for the respondent, he did argue that the respondent had not committed contempt of Court and added that was the opinion of the Central Government also. I need hardly emphasise that, under the law of the land, which extremely few in Pakistan, if any at all, would like to see amended in that regard, for the purposes of the decision of a case by a Court of 0 law, irrespective of whether it is a party in the case or not, the opinion of the Government of Pakistan is fully as irrelevant as that of the humblest resident of Pakistan.
23. A number of decisions were cited by the learned counsel for the respondent. It appears to me that while citing the decisions the learned counsel overlooked the rule that a decision given in a case is meant primarily to apply to the facts of that P case and can have but little weight in a case of which the facts are different. The authorities cited by the learned counsel for the respondent were these:
(1) In re: Clement, 1877 (46) L J R Ch. Div. 375, which dealt with the case of a solicitor insulting another during the pendency of a case ;
(2) Arthur Reginald Prenn v. The King 1951 A C 482, which dealt with a case of a member of Legislature of a country who had recorded a note in a register kept in a jail to the effect that prisoners who were undefended were not heard by the High Court before their appeals were disposed of ;
(3) McLeod v. Saint 1899 A C 549 which concerned a person living in a country who had sold a journal printed in another country which contained some disparaging remarks about some Judges of the former country ;
(4) Government Pleader v. Tulsidas Subhanrao A I R 1933 Born. 197. wherein some remarks are made as to when Judges should take notice of a contempt of Court ;
(5) The Crown v. Amin‑ud‑din Sabrai P L D 1949 Lah. 410, which dealt with ari article in a newspaper criticising the judgment of a Judge of the Lahore High Court and resulted in conviction;
(6) Aswam Kumar Ghosh and another v. Arbinda Bose and another A I R 1953 S C (Ind.) 75, wherein it was held that if an impression was created in the minds of the public that Judges of a Court Act on extraneous considerations contempt of Court was committed but apology was accepted;
(7) The State v. Editor, Printer and publisher of the Nagpur Matribhumi A I R 1954 Orissa 149 wherein an article about a pending case had been published in a paper and was held to amount to contempt of Court ; and
(8) Andre Paul v. Attorney‑General A I R 1936 P C 141.
He also read out from an article published in All India Reporter in its September 1960 part wherein a professor in England had criticised a judgment of the Supreme Court of India and also an editorial in the Times, an English newspaper, dated the 6th of January 1960, wherein there was a discussion about the law relating to contempt of Courts and in what respect it called for amendment. I am of the view that reference to the editorial in 'The Times' and to the article which appeared in the September 1960 Part of the All India Reporter was entirely redundant. As, regards the judicial decisions relied upon by the learned counsel for the respondent, I am clear in my mind that while some of them may be said to go against the contentions raised by the learned counsel for the respondent, others were not applicable except possibly some remarks of a general character which occurred in the decision of their Lordships of the Privy Council in Andre Paul v. Attorney‑general (A I R 1936 P C 141). The facts of the case decided by their Lordships of the Privy Council in A I R 1936 P C 141 were that a paper had pointed out the disparity between sentences passed by different Judges in cases the facts of which bore quite some resemblance to each other. There was a con viction for contempt of Court, whereupon an appeal was taken to the Judicial Committee of the Privy Council. From the decision of their Lordships the learned counsel for the respondent relied upon the oft‑cited remarks which occur at page 145 of the report and are these :‑
"But whether the authority or position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way : the wrong headed are permitted to err therein ; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men."
Nobody can doubt the correctness of this dictum, but if anybody thinks that by saying that justice is not a cloistered virtue, their Lordships of the Privy Council meant that justice was a woman on the streets at the mercy of anyone who wants to take liberties with her, he is thoroughly mistaken.
24. Mr. Mahmud Ali, Advocate, who appeared as amicus curiae, referred to the following cases :
S. M. Haq v. The Hon'ble Judges of the High Court of Judicature at Lahore 1953 F C R 206=P L D 1953 F C 247, wherein it was held by their Lordships of the Federal Court of Pakistan that even a counsel who files an appeal against a judgment of the High Court does not have unqualified privilege to say anything that he likes about the judgment under appeal.
He also relied on two Australian cases, one The King v. Dumbabin and another (1935 Comm. L R 434) and the other in The King v. Fletcher and another (1935 (Vol. 53) Comm. L R 248) and contended that for the purposes of determining whether it offended against the law the speech or the writing R which was the subject of the proceedings under the contempt of Courts Act should be read as a whole. It is clear that this con tention of Mr. Mahmud Ali is sound in law.
25. Mr. Ghias Muhammad, the learned Standing Counsel for the Government of Pakistan, cited Rex v. B. S. Nayyar (A I R 1950 All. 549) wherein it was laid down that where in a complaint to an authority competent to redress a grievance words which do not tend to interfere with the course of justice are used no proceed ings for contempt should be taken. He also cited State v. Brahama Parkash and others (A I R 1950 All. 556 (F. B.)) which held that criticising the Magistrates and Revenue Officers in a resolution of members of the Bar which was sent to the District Magistrate amounted to contempt of court. He further referred to Halsbury's Laws of England, Vol. 24, paragraphs 22 and 96 to 101.
26. The principles deducible from those of the judicial authorities cited by the four learned counsel which are apt are these. A speech or a writing which is under consideration for determining the question whether contempt of Court was com mitted must be read as a whole because though it may here and there contain objectionable words, its purport may be entirely innocuous. Cases may arise that a speech or writing though innocuous for the major parts may contain very objectionable passages here and there and be clearly culpable. In order that criticism of the judicial acts of Judges should be immune from punishment under the Contempt of Courts Art, 1926, the criticism should be fair and not made with the object of lowering the authority of Court and should not impute motives to Judges nor should it be intended to depict Judges as incompetent people unfit to hold their onerous offices. It is keeping these principles in view that 1 will deal with the question whether paragraphs 9 and 10 of the pamphlet con taining the Talk of the respondent offend against the Contempt of Courts Act, 1926.
27. What I have said in paragraphs 16 to 20 about the Talk and its meaning will have made it clear that the respondent had indulged in what is called scandalizing the High Courts in Pakistan, and there will be no escape from the finding that he had been guilty of contempt of Court unless it be proved that he was protected. The learned counsel for the respondent argued that the respondent having given the Talk in question at the instance of the Government and the Talk having been given to the Section Officers of the Pakistan Government only, he was protected. I cannot accept either of these contentions. Assuming that the person at whose request the respondent gave the Talk in question was above the law, I do not see how the respondent can escape liability if he has contravened the law. There is no evidence on the record that the person who asked the respondent to give the Talk had told him to give the Talk that he actually gave. But assuming that he had and that he U as superior is rank to the respondent, the law is clear on the point that the orders of a superior can be of no avail if the person who obeys those orders contravenes the law of the land. This proposition of law can be aptly brought out by taking the example of a soldier who has been ordered by his officer to kill a man without any legal justification. If the soldier does not obey the officer he thereby makes himself liable under the military law for disobedience of the order s of an officer, but if he obeys them, he is guilty under the law of the land and may suffer the extreme penalty for the murder that he has committed under order of. his officer. The fact, therefore, that the respondent had no intention of giving the Talk and gave it only because he had been requested to do so would not make any difference to his; liability if the Talk has contravened the law of the land. Nor does the second part of the argument of the learned counsel for the respondent have any force. The mere fact that the res pondent was addressing only a gathering of eighty or a hundred Section Officers of the Pakistan Government and not a large gathering would not make any difference to his culpability, though,, the fact that the Judges were scandalized before a small number of people may be taken into consideration when considering the question of the sentence.
28. Here I might deal with the contention of learned counsel for the respondent to the effect that the respondent was not responsible for the publishing of the Talk in the form of a pamphlet and could not, therefore, be held liable for the consequences of the publication. His written statement as well as the statement he made before the Court on the 14th of November 1960 made it clear that it was with the permission of the respondent that the Talk given by him was printed. The fact that the respondent, as he say, did not want the pamphlet to go outside Government circles would indicate that at least at the time when the question of printing his Talk arose he was not unconscious of the fact that parts of his Talk were open to exception. If he was not of the view that the Talk was, at least in parts, open to exception, I do not see what objection he could have had to the public at large knowing the Transitional Constitution by which they were to be governed till a new Constitution comes into being. I will assume for the purposes of the argument of the learned counsel for the respondent that the respondent did not intend the Talk to go out of Government circles, but I do not see how that alters the position in favour of the respondent. If the High Courts have been scandalized before the persons to whom the Talk was given and those who have read the pamphlet, the provisions of the Contempt of Courts Act, 1926, are attracted and the fact that the respondent wanted to keep his views on the Transitional Constitution of Pakistan a guarded secret of which the public at large should not have even an inkling his offence is not washed off. I might here mention that the Talk of the respondent was addressed to and afterwards sent to persons who wield quite some influence by reason of the fact that they hold appointments under Government. Scandalizing the Courts of justice before such persons can have very grave consequences and had it not been for the fact that the respondent is in the service of Pakistan I would have believed anyone who told me that the respondent wanted to weaken Pakistan by making the executive and the judiciary have scant regard for each other.
29. While on this subject I might deal with an argument of learned counsel for the respondent for which the Official Secrets Act, 1923, was pressed into service. Before dealing with the argument I might mention that the learned Attorney‑General was not allowed to address arguments in support of the written statement of the Pakistan Government which has been reproduced in paragraph No. 6 of this order. The reason for this was that the written statement put in on behalf of the Pakistan Govern ment said that the Judges of this Court had contravened the Official Secrets Act, 1923. and no one could, therefore, ask three of those Judges to give a finding on the point one way or the other. It was for this very reason that Mr. Mahmud Ali, Advocate, who, by producing a book which contained the Displaced Persons Act but was marked "for official use only" and by mentioning some other books published by Government containing enact ments or statutory rules, which books too were marked "for official use only", wanted to show that the use of these words merely meant that the books were not for sale and not that they contained official secrets which could not be disclosed without incurring a penalty, was not allowed to address any argu ments who show that the Official Secrets Act had not been contra vened. But irrespective of whether or not the Judges of this Court to decided to issue notice to the respondent had contravened the Official Secrets Act, 1923, by publishing paragraphs 91 and 10 of the pamphlet which had become a part of the record A of the Court when they were made the basis of the notice which A was issued to the respondent, no one can seriously urge that this use of the pamphlet, unforeseen by the respondent though it might be, was not for an official purpose.
Mr. A. Hoque, learned counsel for the respondent, argued that as the officials to whom the pamphlet was sent would be making themselves liable to be dealt with under the Official Secrets Act, 1923, if they divulged the contents of the pamphlet to anyone it should be presumed that the pamphlet was not given wide publicity and the respondent should not be held guilty of committing contempt of Court. It is somewhat interesting to note that in the grounds of petition for leave to appeal to, the Supreme Court, presented through Mr. A. Haque, Advocate, of which a copy was delivered to the Deputy Registrar of this Court because the Judges of this Court being parties to the petition, serving a copy of the petition on them was incumbent under the Supreme Court Rules, the respondent had taken precisely the same position regarding the Official Secrets Act, 1923, which the Pakistan Government has taken in the written statement in this Court. This would naturally raise the question whether the respondent had not prevailed upon the person who issued the instructions to the learned Attorney General‑in case those instructions were not issued by the respondent‑to present the written statement and take that plea therein. However, as that question does not require determination in this case, I will say nothing about it except this that, in case he had prevailed upon someone higher in position than himself to instructions for presenting in this Court the written statement containing the plea the objectionable nature of which has been commented upon by me in paragraph 6, which plea he himself had been cautious enough not to raise in this Court either in his written statement or through the con tentions of his counsel, I envy the respondent his powers of persuasions. Mr. A. Haque could not have believed that con veying to anyone, other than an official to whom the pamphlet may be sent, the contents of the pamphlet attracted the Official Secrets Act, 1923, because if he had entertained that belief he would not have read out every word of the Talk of the respondent in open Court where many persons not in the employment of Government were present, in spite of its being pointed out to him by me that if the Official Secrets Act, 1923, applied, his reading out the pamphlet in open Court would amount to its contravention. Or it may be that as he was appearing to defend the respondent, who had the fullest support of the Pakistan Government in this case, Mr. Haque felt confident that even if the Official Secrets Act, 1923, had application, it will not be invoked to his prejudice. But he that as it may, I am clear in my mind that the arguments of the learned counsel for the respondent are without force. The fact that the pamphlet in question was marked "for official use only" would not prevent the officials who read the pamphlet from disclosing its contents to others if they were so minded even if the Official Secrets Act would be contravened by the disclosure. And at any rate it is not necessary to prove in proceedings of this type that the public at large had learnt about the offending passages. In his g statement in Court the respondent said that he had agreed to the e printing of the Talk in the form of a pamphlet on the condition that it did not go outside the official circles and I will assume that this was the stipulation made by the respondent. There are thousands of officials in the employ of the Government of Pakistan and it follows that the respondent had no objection to any of the vast number of the officials knowing what he had said. The statement which Mr. Ghias Muhammad, the learned Standing Counsel for the Pakistan Government, made after consulting some Government officials, in answer to an inquiry by a member of the Bench hearing the case, was to the effect that some copies of the pamphlet had been sent to the Pakistan mission in foreign countries. Even if it be assumed that every official who heard the Talk or read the pamphlet believed that the exposition by the respondent of the Transitional Constitution of Pakistan was such a secret matter that it should remain locked in the secret recesses of the heart of the reader or the listener, as the case may be, and must not be divulged to anyone who was in the employ of the Pakistan Government, there can be no doubt that what the respondent had said about the High Court of Pakistan received vast publicity amongst the officials of the Pakistan Government and this publicity had not been objected to by the respondent. It follows that in case the Talk in question amounted to contempt of Court, the respondent became liable as soon as he gave the Talk to the eighty or a hundred Section Officers of the Pakistan Government at Rawalpindi and he incurred further liability as soon as the pamphlet which contained the Talk was distributed to officials by the person who had the Talk printed with the permission of the respondent. I might once again point out that the notice that issued to the respondent said that the Judges of this Court had been maligned and the authority of this Court had been undermined amongst those persons who had heard the Talk and those who read the pamphlet and not even one single word had been said to the effect that the Court had been maligned or its authority undermined amongst the public at large. I am clear in my mind that there had been more than enough publication of paragraphs 9 and 10 of the pamphlet by the respondent and it cannot be held that because the respondent had not published the Talk to the public at large he had not published it at all.
30. It was next contended by learned counsel for the respondent that as the respondent in his capacity of Secretary of the Law Ministry of Pakistan Government bad to deal with legislation and the appeal work of the Government and in the performance of that duty had to comment upon judgments of the High Courts in Pakistan, the Talk could not be held to have been made with the object of scandalizing this Court or the other High Court in Pakistan. It is undeniable that in his capacity of Secretary of the Ministry of law, the respondent has the right to express his own views about judgments of the High Courts but those views can be expressed by him on confi dential officials files, the contents of which are not broadcast to the world at large or to public servants other than those having C official concern in the matter. If the intention of the respondent was that because of what the considered to be the incompetence of their Judges the High Courts in Pakistan should be deprived of the power to issue writs, it was open to him to address a secret and confidential communication through the Law Minister to the President of Pakistan, but as he was not discussing the matter with an authority competent to take away the powers of the High Courts to issue writs but was addressing people who would scarcely know the difference between a writ and any other process issued by a Court, he cannot claim the protection which would attach to his secret communications in the discharge of his official duties. No one should have the mistaken impression that the fact that he can in certain circumstances do a thing gives him the right to do that under all circumstances. This may be explained by giving an example. A Judge can punish a man after trial and can send him to prison, but the same Judge cannot, sitting at home without holding a trial, send anyone to prison and if he were to do that he would certainly be guilty of the offence of wrongful confinement. A case similar to that of the respondent arose when a litigant wrote disparaging things about a Judge of this Court in an application presented to a Court subordinate to this Court. His case, which is The State v. Abdur Rahman (P L R 1957 Lah. 623 = P L D 1957 B J 6), was dealt with by me and he was sentenced. I held in that case that though it may be permissible .to say certain things about a Judge in the Court which is hearing an appeal against the judgment of that Judge, the same thing, if it is derogatory in nature, cannot be said in a Court from whose judgments the Judge hears appeals. While, therefore, it may have been open D to him to scathingly criticise the Judges of the High Courts before the President of Pakistan, the respondent could not do that before anyone else except the Supreme Court of Pakistan when that Court was engaged in hearing an appeal against a judgment of the Judges in question and even then, as is clear from the decision of the Federal Court of Pakistan in S. M. Haq v. The Honourable Judges of the High Court of Judicature at Lahore (P L D 1953 F C 247
), the privilege would not be unlimited.
31. Learned counsel for the respondent also urged that what was contained in paragraphs 9 and 10 of the pamphlet was to a great extent correct and, therefore, contempt of Court could not be said to have been committed. He contended that the respondent believed that even under the abrogated Constitution no writ could be issued to Government, but as the words of Article 170 of that Constitution were clear. I am not prepared to accept the contention that the respondent believed what his counsel said he did. And if the respondent did have that belief, he should hot have had it. His learned counsel added that this at least correct that no writ could be issued to Government even under Article 170 of the abrogated Constitution in service matters. This contention too is devoid of force because when it was raised on behalf of the Government before the supreme Court in Civil Appeals Nos. 95, 96 and 97 of 1956, decided on the 10th of November 1958, which were appeals against a decision of this Court in Mahmood Ali Khan etc, v. The Islamic Republic of Pakistan (P L R 1958 Lah. 619=P L D 1958 Lah. 1) the contention was repelled by their Lordships of the Supreme Court. Mr. A. Haque learned counsel for the respondent, further contended that the respondent had not been far wrong when he said in his Talk that some severe remarks were made by the Supreme Court with regard to the mode of exercise of writ jurisdiction by the High Courts, and in this connection referred to Tariq Transport Company, Lahore v. The Sargodha‑Bhera Bus Service etc., (P L D 1958 S C (Pak.) 437), The State of Pakistan v. Mehraj‑ud‑Din (P L D 1959 S C (Pak.) 147) and Pakistan through The Secretary, National Assembly v. Khandker Ali (P L D 1960 S C (Pak.) 1). It may be that some remarks in these judgments of the Supreme Court are severe, but I do not see why it should have been necessary to mention to the Section Officers of the Pakistan Government that severe remarks were made by the Supreme Court against the High Courts in Pakistan, if the only object of the respondent was to apprise them of the purport of the Transitional Constitution of Pakistan.
32. I will now take up the contention of the learned Attorney‑General that no action should be taken as the alleged contempt was not apparent. The rule on which the learned Attorney‑General relied is salutary, but when applied to the facts of the present case, it cannot be of avail to the respondent. Paragraphs 9 and 10 of the pamphlet containing the Talk given by the respondent are clearly to the following effect :‑
(1) That though no writ could issue to Government, the High Courts in Pakistan had been issuing such writs between 1956 and 1958 and had for that purpose pressed into service the words "order or direction" which occurred in Article 170 of the Constitution of the Islamic Republic of Pakistan ;
(2) that in spite of the fact that all appeals in cases in which writs had been issued by the High Courts to Government had been accepted, the High Courts had not been able to understand the true import of writs
(3) that though the Law Ministry had, in order that the High Courts should understand that a writ was a writ and nothing but a writ, made a change in the law, neither that change not some severe remarks by the Supreme Court bad succeeded in making the High Courts understand the limits of their jurisdiction with regard to issue of writs ;
(4) that the disregard by the High Courts of the limits of their jurisdiction and usurpation of powers by them had led to uncertainty, public confusion and private misery ; and
(5) that the decision of a High Court which he asserted had not been the subject of appeal to the Supreme Court had laid down that no extension of service could be granted and this judgment was entirely incomprehensible. The above assertions of the respondent depict the High Courts in a very poor light and nothing could be more apparently contemptuous than what the respondent had said. It cannot be overlooked that, as shown by me paragraphs 18 to 20 of this order, asser tions made in points marked as (1), (2) and (5) were palpably wrong, and the respondent has not shown that his assertions in points (3) and (4) had any material to support them.
33. In his written statement the respondent said that he had no intention of committing contempt of Court. Whether or not the respondent intentionally scandalized the High Court G in Pakistan is to be deduced from his acts. The respondent gave the Talk in his own language and on his special subject. If the language used by the him is open to exception, he has to be presumed to have intended that it should be open to exception. And if his premises were wrong, it has to be presumed that he intended them to be wrong, or at least did not care whether they were right or wrong. The detailed discussion by me of the Talk of the respondent will have showed that the language of the Talk in so far as it dealt with the High Courts in Pakistan was highly objectionable and that the assertions against the High Courts were unfounded. In this view of the matter the Talk of the respondent would clearly amount to contempt of Court under the law in force in Pakistan. During arguments it was said that even if the provisions of the contempt of Courts Act, 1926, were attracted, punishment could not be visited on the respondent by this Bench for two reasons, one being that if the Talk had scandalized the Judges of the High Courts in Pakistan, it had scandalized the Judges of both the High Courts and not those of the High Courts of West Pakistan alone, and the second that the Judges of the High Court of West Pakistan working at Lahore constituted only one of the three parts of the High Court of West Pakistan, one part being at Karachi and the other at Peshawar. I confess that I did not understand the contention when it was addressed and have not been able to understand it till now. If both the High Courts in Pakistan were maligned, I do not see why one of those two Courts is incompetent to take action. And if one High Court is competent to take action, any of its Judges is competent to take it. Consequently, I would hold that the respondent had been guilty of contempt of Court when he delivered his Talk at Rawalpindi to the Section Officers of the Pakistan Government and repeated that offence when he allowed the printing of his Talk in the form of a pamphlet which was tp‑ be distributed ‑‑to the official in the employ of the Pakistan Government. The finding that the respondent has committed contempt of Court on two occasions r is open to no objection, because the notice that was sent to him l mentioned both of them and the two acts having been done within one year of each other, section 234 of the Code of Criminal Pro cedure permits their consideration together.
34. I will now take up the most difficult of the questions that arose in the case, namely, what punishment should be awarded. In this connection Mr. Mahmood Ali said that the Court should pass no sentence and should content itself with recording a conviction. Though he did not say so, one could see that Mr. Mahmood Ali had adopted that attitude because the fact that the Government of Pakistan having supported the respondent so completely would make it appear that if a sentence is passed it would be commuted by Government. That, however, is a matter which cannot weigh with the Court. The circum stances that are to be kept in view by the Court are :‑
(1) That an institution in which all and sundry should have implicit confidence so that there should not be chaos has been maligned and its authority has been attempted to be under mined by an individual, and an institution cannot be sacrificed for an individual ;
(2) that the person who has indulged in the reprehensible act is a high official and as he is the Secretary to the Law Ministry of the Government of Pakistan, what he said about legal matters must have been considered to be true by all those who did not know the correct position ;
(3) that the respondent is a foreigner in Pakistan ; and
(4) that the respondent has been in the service of Pakistan for about twelve years,
The first two of these four circumstances call for the imposition of the maximum sentence prescribed by law for the offence, namely, simple imprisonment for six months and a fine of Rs. 2,000, while the last two call for exercise of leniency. Weighing all the circumstances together, I would sentence the respondent to pay a fine Rs. 2,000, default of payment of which will entail simple imprisonment for one month. I would further direct that the respondent pay as costs of these proceedings the sum of Rs. 2,000 which is to be paid by the provincial Government as fee to Mr. Mahmood Ali, Advocate, out of public money. The respondent is granted time till the 9th of February 1961 to pay the amounts mentioned above.
The judgment of my learned brother Shabir Ahmad is so exhaustive that at first sight it seemed that any further comment on my part would be entirely superfluous. On reflection, however, it appeared to me that some useful purpose might be served by bringing the central features of the case into sharper focus than is possible when the field to be illuminated is very wide. I accordingly venture . to make the following observations
2. In the first place, I fully agree with Mr. Mahmood Ali that in considering the question of whether the remarks to which j this Court has taken serious .exception constitute contempt, the address in which they are contained must be read as a whole. Clearly, if the remarks in question form an integral part of the respondent's Talk, so that their excision would destroy the chain of thought, they will be easier to justify than if they are extraneous and irrelevant.
3. In my opinion the result of the application of the salutary principle above referred to is far from favourable to the respon dent. In paragraph 14 of the pamphlet he remarks‑
"I am going, with your permission, to skip EBLO as it is called : the Elective Bodies (Disqualification) Order, 1959, and the Basic Democracies Order, 1959 : both are constitutional in operation, and that is why we put them out as Orders and not Ordinances, but their provisions or at least their general import must be very well known to all of you and I am devoting this afternoon to putting before you the essential structure of the State, that structure without which it would fall to pieces."
The point that clearly emerges from the above passage is that in general the respondent only intended to deal with orders of the greatest constitutional importance. Not only does he omit any discussion of the Orders mentioned, EBDO and the Basic Democracies Order, 1959, but in paragraph 12 he further remarks‑ "We need not detain ourselves over the other Orders made in the earlier part of 1959, important though they are each in its particular sphere."
The question, therefore, immediately arises of why the writ jurisdiction of the High Courts and the view taken by this Court as to whether Government has the power to grant extensions of service to its officers have been singled out, not only for mention, but even for fairly detailed discussion. However flattering such a thought might be to the ego of the High Courts, there is no reason to suppose that in the opinion of the respondent the curtailment or even the total abolition of their power to issue writs would cause the structure of the State to fall to pieces. On the contrary, there are grounds for suspecting that the respondent could face such a prospect with complete equanimity. Similarly, it is hard to believe that this Court's view of the power to grant extensions of service is a matter of grave constitutional importance.
4. The answer to the question raised in the previous paragraph is not far to seek. The respondent makes no secret of the fact that his object in including paragraphs 9 and 10 in his address was to illustrate the results that inevitably follow when any "organ of the Government" oversteps the boundaries of its legitimate jurisdiction. . What those results are may again best be stated in the respondent's own words. He says :‑
"The great thing, in any orderly system of Government (and without orderliness there is chaos) is that every organ of the Government should be best adapted to the work it, has to do and should know what that work is and what its own frontiers are. This avoids duplication. It avoids friction. It prevents usurpation of function and consequent uncertainty, with all the public confusion and private misery that it can lead to."
The High Courts have thus been held up to the respondent's Ordinance and readers as a glaring example of the evils to which he refers. He does not, however, leave the matter on a general basis, and in the earlier portion of paragraph 9 of the pamphlet he narrows his accusation down to one particular point. He first states that between 1956 and 1958 the High Courts used the language of the 1956 Constitution to claim jurisdiction to issue writs against the Government itself. If this phrase had stood alone, I would have been inclined to take it as being merely a somewhat unfortunate manner of expressing the thought that the High Courts placed a particular interpretation on the Constitution, but read in conjunction with what follows, it is difficult to avoid the inference that the respondent is accusing the High Courts of deliberately twisting the language of Article 170 of the abrogated Constitution to suit their own ends.
5. The respondent goes on to assert that the view taken by the High Courts that writs can issue against Government is contrary to centuries of decisions by the Courts in England, which decisions (or at least the principles laid down therein) have been followed in the United States. Next, he claims that the Law Ministry, at considerable public expense, filed a large number of appeals to the Supreme Court to have the position properly established, and was successful in all except one.
6. The next piece of information imparted by the respondent to his audience and readers is that in order to put the situation right without having to spend more money on more appeals a clause was inserted in the Laws (Continuance in Force) Order, 1958, taking away the power of the High Courts to issue orders and directions and confining their jurisdiction to the issue of the so‑called prerogative writs. The object of the introduction of the above clause is described by the respondent as being "to indicate, as politely as possible, that writ was a writ, confined to known limits, and the limits could not be exceeded". His next remark is even less complimentary namely, "I have to confess that, even with this civility, we have not entirely succeeded even yet, but this clause on the one side, and some very severe observations by the Supreme Court on the other, have at least bad the effect of indicating that after all there are limits and that the limits must be observed".
7. The above analysis of paragraph 9 of the respondent's address makes it abundantly clear that he was treading on very dangerous ground. The impression that must have been created in the minds of his bearers and readers is that the High Courts were either so incompetent as to be incapable of appreciating so obvious a fact as that a writ is a writ, or so contumacious that in spite of the steps taken by the Government of Pakistan to put matters right and very severe observations by the Supreme Court they refused to confine themselves to the limits of their legitimate jurisdiction. It further cannot be denied that the result of such an impression must be to bring the High Courts into contempt and to lower their authority, it being obviously impossible for any right‑thinking person to respect a Court which is either inefficient or actuated by improper motives.
8. Since the respondent has placed himself in such a posi tion, it appears to me that the only possible defence he can put forward is that the remarks in dispute amounted to no more than legitimate criticise, but this defence is in the circumstances. Not available to him. In the first place, as pointed out by their Lordships of the Privy Council in Andre Paul v. Attorney General (AIR 1936P C 141), one essential condition of such a defence is that the person concerned must abstain from imputing improper motives to those taking part in the administration of justice, but in the present case the respondent has clearly implied that the High Courts acted contumaciously and usurped jurisdiction. Secondly, as laid down in the Australian case, The King v. Fletcher and another (52 Comm L R 1934-35 p.248) if a person charged with contempt seeks to take shelter behind the defence of legitimate criticism, the facts forming the basis of the criticism must be accurately stated, and the criticism must be fair. In the case now before us this condition has also not been fulfilled, the respondent's remarks containing at least one serious inaccuracy, namely, the statement that out of a large number of appeals filed in the Supreme Court to establish the position that no writ could issue against Government under the 1956 Constitution, all but one were successful. When questioned in this Court on the 14th of November 1960 as to whether the Supreme Court has in any case laid down that a writ, direction or order could not issue to a Government, Provincial or Central, under the abrogated Constitution, the respondent was obliged to admit that he could not name any such case, nor was he aware of any. This in itself would be bad enough from the respondent's point of view, but the matter does not end there. He was further compelled to concede that in the case known as the Police officers' case (W. P. 443 of 1957) the contention that no writ could issue against Government was repelled by the Supreme Court. It is interesting to note that the case in question is also referred to in an affidavit filed by Mr. Muhammad Gul, Solicitor to the Government of Pakistan. To that affidavit are appended a number of annexures intended to prove that the Law Ministry has been uniformly expressing the view that no writ can be issued against Government, particularly, in service matters. The police officers' case is dealt with in annexure 3' and the following note, which forms a part of suggested grounds of appeal in Writ Petition No. 346 of 1958, Ali Hyder v. Pakistan, is illuminating :‑
"It is true that the High Court of West Pakistan has, in exercise of its jurisdiction, determined the seniorities of Govern ment servants in a number of cases, but this Ministry has consistently maintained the view that seniorities cases are excluded from writ jurisdiction. The point was raised before the Supreme Court in Bashir Ahmad Khan v. Mahmood Ali Khan Chowdhury C. A. No. 95‑97/1958 which related to the seniority of certain P. S. P. officers. In that appeal the Supreme Court armed the view of the High Court and repelled the plea of want of jurisdiction urged on behalf of the Government.
"The question of jurisdiction has further been considered in this Ministry, and if I may say so with respect, the arguments in favour of exclusion of seniorities of Government servants, from the writ jurisdiction of the High Courts are formidable. Therefore, in my opinion the present appeal would be a fit case in which the Supreme Court should be invited to reconsider its views on the question of jurisdiction particularly in view of its own judgment in Tarag Transport case (P L D 1958 S C (Pak.) 437) and also the observations of the learned Chief Justice in Nurul Hasan's case (P L D 1956 S C (Pak) 331)."
The above note clearly admits that the view taken by the High Courts on the question of whether, under the 1956 Constitution, writs, could issue to Government even in service matters is shared by the Supreme Court of Pakistan. If, therefore, this Court has erred, it is erring in good company, and the fact that the Law Ministry seriously contemplated asking the Supreme Court of Pakistan to reverse its own decision throws a flood of light on its attitude in the matter. It is difficult to say whether the possessors of such sublime intellectual self‑confidence are to be envied or pitied, though in the circumstances pity would probably be the more appropriate emotion. Be that as it may, the above discussion clearly establishes that the respondent had no justifica tion for accusing the High Courts of inefficiency or contumacy in taking the view that writs can issue against Government.
9. The respondent was further highly unfair to the High Courts in equating the position under Article 170 of the abrogated Constitution with that of the law of England. As pointed out by Mr. Mahood Ali, whereas writs in England first originated by delegation from the sovereign, in Pakistan the right to issue them was conferred by statute, and there is a world of difference between these two sources. Article 170 of the abrogated Constitu tion states in the most unambiguous terms that notwithstanding anything in Article 22 the High Court shall have power, through out the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government, directions, orders or writs. In face of the words underlined, I confess I find it incomprehensible how it can be argued that no writ could issue to Government under the 1956 Constitution.
10. There remains the respondent's allegation that the Supreme Court passed some very severe observations against the High Courts. The clear implication is that the observations in question related to the view taken by the High Courts that writs could issue against Government, but neither Mr. A. Haque nor Mr. Ghias Muhammad was able to give any example. Whatever severe observations may have been made relate to other matters, and are consequently irrelevant to the point under discussion.
11. To sum up in respect of paragraph 9 of the pamphlet, the respondent's references to the High Courts were, in addition to being couched in offensive language, highly inaccurate and clearly amount to contempt of Court.
12. In respect of paragraph 10 of the pamphlet, the respondents position is not happier. After informing his hearers and readers that on of the additions to Article 6 of the law
judgments, as the case was heard by a Division Bench and each of the Judges made his own remarks) is reported as Mr. A. R. Azar v. Federation of Pakistan (PLD 1958 Lah 185). The point at issue was whether an extension of service could be granted to a Class I officer of the Pakistan Railway Services, who was due to retire on the 30th of November 1956, but was granted an exten sion of service for a period of one year with effect from the date of his compulsory retirement. The extension was challenged by four other officers, whose own position was jeopardised thereby, on the ground that in accordance with Rule 56 of the Fundamental Rules Class I Officers must retire compulsorily on reaching the age of fifty‑five and, except in the case of those holding the post of Chief Engineer, who can be granted extension of service for a period not exceeding three months, no such officer can be retained in service after he has attained the age of fifty‑five years. After holding that the language of Rule 56 was unambiguous, Masud Ahmad, J. went on to remark :‑
"The above interpretation of Fundamental Rule 56 was not disputed by the learned Additional Advocate‑General who has appeared on behalf of the respondents. He, however, contended, firstly, that under Article 180 of the Constitution as every civil servant holds office during the pleasure of the President, the President, in spite of what Fundamental Rule 56 lays down, had the option of retaining in service respondent No. 2 even after he had attained the age of fifty‑five years; secondly, that the provisions of this rule have been modified by the Cabinet Secretariat's letter dated the 10th October 1955 ; thirdly, that the rule itself should be deemed to have been waived when the President agreed to grant extension of service to respondent No. 2, and ; fourthly, that in the circumstances of this particular case, the writ asked for cannot be issued."
The above contentions of the learned Additional Advocate‑General were rejected, it being held that the "pleasure" of the President or the Governor had never previously been invoked for granting extension of service to any person in violation of the relevant rules, though it had sometimes been utilised to terminate the services of civil servants prematurely. It was further held that the mandatory provisions of Rule 56 of the Fundamental Rules could not be modified by instructions contained in a Cabinet Secretariat letter. 'I he contention that as the President agreed to grant an extension of service to the officer in question, Rule 56 should be deemed to have been waived was also considered to be unsound.
13. My reason for giving the above details in connection with the judgment under discussion is to show that although the grounds advanced for accepting the writ petition may be held to be wrong, they cannot fairly be described as incomprehensible. Being no doubt conscious of this, the respondent stated before us :‑
"My use of the words 'we have not been able to understand the judgment' meant that in the opinion of the Law Ministry the judgment did not lay down, correct law."
The only comment I can make is that if this was the respondent's meaning, the language used falls so far short of the standard of clarity and precision usually associated with an expert draftsman, that I would have expected the respondent to feel a certain sympathy for the unfortunate Judges who had, in his opinion, so lamentably failed to make their meaning clear in the case in dispute.
14. There is, however, another aspect of this matter. It must be almost, if not entirely, without precedent for a Law Ministry to be so contemptuous of a judgment of the High Court as to take it for granted that in spite of the said judgment the power denied by the Judges nevertheless existed and, when framing fresh legislation, formally to assert its existence in an "Explanation." It is difficult to imagine any procedure showing greater contempt for the High Court than this.
15. It is also most unfortunate for the respondent that his assertion that no appeal was filed in the Supreme Court against the decision in question should be again incorrect. As my learned brother points out, Civil Petition for Leave to Appeal No. 7 of 1957 was presented to the Supreme Court and dismissed on the 7th of March 1958. This unpalatable fact renders the tone of the respondent's reference to the judgment under consideration even more impossible to justify. In short, paragraph 10 of the pamphlet also constitutes contempt of Court, and contempt of a serious kind.
16. The other questions arising in this case have been fully dealt with by my learned brother, and I have nothing to add to his remarks. The only other comment I wish to make is that the sentiment uppermost in my mind is one of profound regret that these proceedings should have proved necessary. Unless feelings of mutual respect prevail between the executive and judicial authorities, the result cannot but be prejudicial to the best interest of the State, and that a High Court should be compelled to take action for contempt against the Law Secretary to the Government of Pakistan cannot from any point of view be regarded as other than highly unfortunate. As explained by my learned brother, however, the Judges of this Court felt that they had no option but to take that course.
17. On the question of the quantum of punishment and the payment of costs I agree with the proposal of my learned brother.
On the 10th of October 1960, the Services and General Administration Department of West Pakistan sent to the Registrar of this Court a copy of the pamphlet entitled "The Transitional Constitution of 1958", comprising the text of a talk given by Sir Edward Snelson, Secretary, Ministry of law, Government of Pakistan (respondent), to Section Officers on the 15th of February 1960 at Rawalpindi. There was no indication in the letter of the Services and General Administration Department or of the Director of Training, President's Secretariat, Secretariat Training Institute, who had sent twenty‑five copies of pamphlet to the West Pakistan Government for circulation, that, its subject‑matter was secret or confidential. The copy exhibited its these proceedings is marked "for official use only". It meant that the pamphlet was for use of Government officials only and not to be marketed. A copy of Displaced Persons (Compensation and Rehabilitation) Act, 1958, was brought to our notice which bears a similar inscription. Indeed, there are many other Government publications which, without being secret or con fidential, are marked "for official use only".
2. In the third week of October the pamphlet was put in circulation to the Judges and on reading it many of us came to the conclusion that paragraphs 9 and 10 ex facie amounted to contempt of this Court. Since the author of the talk was none other than the Secretary, Ministry of Law, Government of Pakistan, which aggravated the situation, the matter was discussed in an informal meeting of the Judges and it was unanimously decided that the matter called for an inquiry and appropriate action if the respondent was found guilty. Under these cir cumstances, Shabir Ahmad, J., on the 25th of October 1960, issued a notice to the respondent to show cause why he should not be punished for contempt inasmuch as paragraphs 9 and 10 of his talk to the section Officers and its publication was calculated to lower this Court in the eyes of all those when heard the talk or read the pamphlet and to undermine the authority of this Court. He was also required to appear in person as it was likely that he may be questioned about certain matters.
3. On a subsequent date the Government of Pakistan, through its Attorney‑General, Chaudhri Nazir Ahmad Khan, applied to be impleaded as a party to the proceedings and though it looked odd that the "State" in whose name the notice was issued to the respondent wanted to make a common cause with him, the prayer was granted. The anomaly was obvious that ever N if the respondent was found guilty of defaming this Court, lowering its prestige, undermining its authority, holding it out in contempt and scandalizing it in and outside the country, the Government which by Article 2 (2) of the Laws (Continuance in Force) Order (I of 1958) had provided for continuing in being of this Court in its powers and jurisdiction, including the jurisdiction to punish anyone found guilty of its contempt was desirous of' defending the respondent.
4. In consequence of this the Provincial Government found itself in a quandary and its Advocate‑General expressed his inability to assist this Court though by long‑established practice . and as an Advocate of this Court it was clearly his duty to do so. Notice of these proceedings was issued to him simultaneously with the respondent on the 25th of October 1960. On the 14th of November 1960, when the Advocate‑General appeared before us he asked for an adjournment to enable the Provincial Govern ment to decide on which side to throw its weight. We could see that the Provincial Government had been put in an embarrassing situation and in order not to aggravate it, we allowed its Advocate‑General to withdraw from these proceedings. The respondent was represented by Sheikh Abdul Haque and the Central Government by its Attorney‑General and Sheikh Ghias Muhammad, who claimed the right to address us separately in a capacity which we could not understand. Though we failed to see how the Ministry of Law thought it proper to engage more than one lawyer to address us on behalf of the same party, nevertheless we allowed all the three counsel to address us on behalf of the respondent and nominated Mr. Mahmood Ali Qasuri as amicus curiae to assist us in the matter before us.
5. On the 14th of November 1960, the respondent appeared in person and filed a written statement denying that he had committed contempt of this Court. In sub‑para. (i) of para. l of the written statement the circumstances in which the talk was given are set out so that "the matter may be viewed in its proper perspective." This is followed by a description of the manner in which the talk happened to be published by the Establishment Division subject to the restriction imposed by the respondent that printed copies shall not go outside the Government circles. Sub‑para. (ii) describes the paragraphs 9 and 10 of the talk as "explanatory of the change in the wording of clause (4) of Article 2 of the Laws (Continuance in force) Order, 1958, in juxtaposition .to the corresponding provisions of the late Constitution and to the latest amendment in Article 6 and the reasons which necessitated these changes." The object with which the talk was given is summed up in sub‑para. (iii) as to the "impressing upon the audience the importance of keeping within their respective spheres." Sub‑para. (iv) embodies the observation of the judiciary in Andre Paul Terenee Ambard v. The Attorney General of Trinidad and Tobago (A I R 1936 P C 141) that in a progressive society legitimate criticism of official Acts, including judgments of Courts of Justice always treated with consideration and favour and that Justice is not a cloistered virtue. The written statement concludes with the observation that the remarks in the paragraphs to which exception was taken "were made entirely in good faith and in public interest in discharge of the respondent's official duty." Properly analysed, the defence taken up, the respondent was thus one of justification and qualified privilege.
6. The Attorney‑General filed a separate written statement consisting of only two paragraphs in which no definite position is adopted as to whether the respondent was guilty of contempt or not. The, gist of the written statement is that the talk given p by the respondent was meant for officials and no part of it could, in view of the provisions of the Official Secrets Act, 1923, be disclosed to the public. It could not be maintained seriously that Government Officials to whom two thousand copies of the pamphlet were to be circulated throughout the length and breadth of the country and in Embassies and High Commissioners abroad did not constitute in themselves a very important sector of public whose duty it is to aid, assist and carry out the decrees, orders, injunction and writs issued by this Court. Assuming, therefore, that paragraphs 9 and 10‑ of the respondent's talk were calculated to lower and undermine the authority of this Court, could it be maintained that because the Government Officials, to whom the talk was given or who read the pamphlet, could not communicate its contents to others, no contempt of this Court was committed. Surely, must credit the Attorney‑General of Pakistan with knowledge of the correct legal proposition in the matter. What then was the relevance of the Official Secrets Act to the defence set up by the Attorney‑General Was it dragged in as a veiled threat to this Court for publication of the contents of para graphs 9 and 10 of the talk as an annexure of the notice of contempt We understand that a similar position was taken up in the application for special leave to appeal moved in Supreme Court before the respondent filed his written statements in this Court. If this was the intention, .in all humility we were left undeterred and in vain did we ask the Attorney‑General more than once to name the person under whose instructions the written statement was drafted for this in itself constituted a worst form of contempt of Court calculated to undermine the Rule of Law, not the Rule of Courts, in this country, and on which the entire fabric of civilised society rests. He took us into confidence to this extent only that in ordinary circumstances the Attorney General is briefed by the Solicitor to the Government of Pakistan and that this course was not followed in the present instance. He promised to obtain instructions from the Ministry of Law as to whether he could disclose the particulars of the person who had instructed him in the case, but apparently the permission was refused and he did not answer our query. Under these circum stances, it is unnecessary to dwell any more on this unfortunate aspect of the case.
7. A stage has been reached where we should proceed to examine the contents of paragraphs 9 and 10 of the respondent's talk to determine whether he has been guilty of contempt. The paragraphs read‑
"9. I think everybody has heard about the writs or, as the Law Ministry prefers to call them‑to indicate the source of the power‑the prerogative writs. Between 1956 and 1958 the High Courts had used the language of the 1956 Constitution with its reference to orders and directions in the nature of writs‑to claim a jurisdiction to interfere with Government itself without reference to the strictly defined frontiers of the prerogative writs. A Court can issue a writ only because the sovereign function is to that extent delegated to it by the sovereign that is to say, by the State. Clearly the delegate cannot exercise the power against the sovereign itself, and that has been made clear over centuries of decisions by the Courts in England where the writs first originated by delegation from the King, and has been followed in the United States where the sovereign power descended to the people and is exercised in their name by the President. As an American Judge .recently said: There cannot be two sovereigns, and the sovereign will not issue a prerogative writ against itself.' The Law Ministry has had to appeal a large number of times to the Supreme Court to have the position properly established, and has succeeded in every appeal but one. All this has cost a very great deal of money, and to try and put the situation right without having to spend more money on more appeals a clause was inserted in the Order we are discussing giving the High Court the power to issue the named writs' (not orders or directions' and so on, but writs) of mandamus and the rest. This was to indicate as politely as possible that a writ was a writ, confined to known limits, and the limits could not be exceeded. I have to confess that, even with this civility, we have not entirely succeeded even yet, but this clause on the one side, some very severe observations by the Supreme Court on the other, have at least had the effect of indicating that after all there are limits and that the limits must be observed. The great thing, in any orderly system of government (and without orderliness there is chaos) is that every organ of the Govern ment should be best adapted to the work it has to do and should know what that work is and what its own frontiers are. This avoids duplication. It avoids friction. It prevents usurpation of function and consequent uncertainty, with all the public confusion and private misery that it can lead to."
"10. I apologize for taking up so much time over this Order, but on it the whole fabric of the constitutional government of the country rests until we have the new Constitution. Perhaps you would have wished me to say something about the services, seeing that what was originally a single paragraph, Article 6, has now been increased to a further six paragraphs, some modifying the terms and conditions of service already guaranteed‑but not all: one of the additions establishes the power to grant extensions of service a power which was denied by the High Court. We have never been able to understand the judgment: we would, of course, have appealed against it and have no doubt we should have succeeded, but there was no time‑a certain loan from abroad was made conditional upon the continued retention of certain people, and we could not wait for the months an appeal would take, the existence of the power was formally asserted in an Explanation. We chose this particular way of doing things, if you are interested to know, so as not to concede that the power had to be created: we took it for granted that, notwithstanding the judgment, and in order not to prejudice our appeal if we ultimately did appeal in any other case, the power does exist."
8. Before analysing the two paragraphs, let us recall the object of the talk given by the respondent to the Section Officers working in the various Ministries of the Government of Pakistan at Rawalpindi. Although to strengthen his defence, the res pondent described his audience as key‑officers, the fact remains that in the hierarchy of officers they have replaced the former Superintendents and Assistant Secretaries and do not deal with constitutional matters or with the scope of writ jurisdiction of this Court. But whatever be their position and the propriety of the occasion to have addressed them on this subject we have further to take into consideration. the publication the talk in the form of a pamphlet and distribution of its copies among all rank of Government Officials. The position taken up by the res pondent in the written statement is that he wanted to explain and impress on the minds of the Section Officers the necessity for each department of the Government to act within the sphere of its own authority. 1n this context a reference to the exercise of writ jurisdiction by the High Courts was, therefore, no more than an illustration of one of the departments of the Government exceeding the limits of its power and authority. Later on the respondent tried to shift his position and Sheikh Abdul Haque pleaded that the purpose and purport of paragraphs 9 and 10 was to educate the listeners not to invoke the jurisdiction of the High Courts in service matters as under law no writ could issue to the Government to remedy their grievances. An affidavit Was also filed by the respondent in support of the plea that the sentence in the 9th paragraph of the talk, which reads: "The Law Ministry has had to appeal a large number of times to the Supreme Court and has succeeded in every appeal but one," refers to appeals concerning service matters. It comes to saying that all appeals except one, taken by the Central Government to the Supreme Court from the judgments of the High Courts were allowed on the ground that we had no jurisdiction to issue writs in service matters. It further complicated the . matter for the respondent, because the plea amounted to a direct interference and obstruction in the exercise of jurisdiction of this Court by the Ministry of Law. I am however, inclined to accept the position taken by the respondent in his written statement and to ignore the improvements made during the hearing of this matter.
9. Keeping in view the text of the respondent's talk as a whole and the purpose with which it was given, let us now analyse the contents of paragraphs 9 and 10. In paragraph 8 the res pondent explained to his audience the effect of abrogation of the x 1956 Constitution on the existing laws and the promulgation of x the Laws (Continuance in Force) Order, 1958, and to keep the existing laws in force as well as of the power conferred on the President to adapt it. In continuation, he takes up the subject of writs in paragraph 9 and the whole theme which runs through it and the succeeding paragraph is descriptive of the abuse of power by the High Courts interfering with the Government in exercise of their writ jurisdiction. The first sentence of para graph 9 is introductory and followed by the statement that between 1956 and 1958 the High Court used the language of 1956 Constitution‑‑with its reference to its orders and directions in the nature of writs to claim a jurisdiction to interfere with the Government itself without reference to the strictly defined frontiers of the prerogative writs. The words "to claim" and "to interfere with" are susceptible of no other meaning than that the High Courts not by error of judgment but designedly abused the language of Article 170 of the 1956 Constitution to arrogate to themselves the power of interfering with the Govern ment. Then follows the statement which on the face of it is erroneous and calculated to mislead the audience, namely, that under Article 170 no writ could issue to the Govern ment. The theory of delegation of powers propounded by the respondent in the talk, if correct, would mean that since the Government had by promulgating Laws (Continuance in Force) Order provided continued existence of all laws, none of them can be applied to or against it. If the reasoning be correct, then the Government could not be sued on the basis of a contract or for its liability in tort. The jurisdiction to issue writs was conferred on the High Courts by the Constituent Assembly and not by a sovereign for there was none in the State. The sovereignty, if any, vested in people in whose name the Constitu ent Assembly held office one can understand the argument that since the law of writs was borrowed by the Constituent Assembly from England, it had the intention to impose same limitation on the jurisdiction of the High Courts under Article 170 as obtained in England, but the words "orders", "directions" "in the nature of" and "to any person or authority including inappropriate cases any Government" had to be given their due meaning, and the respondent could not deny that the Supreme Court of Pakistan as well as of India have construed them as conferring much wider jurisdiction on the High Courts of Pakistan and India than the jurisdiction exercised by superior Courts of England. The statement that no writ could at all issue to the Government was, therefore, erroneous on the face of it.
10. As mentioned above, an attempt was made during the hearing of this matter to improve the written statement by adding that no writ lay to the Government in service matters and an affidavit was also filed to that effect, but the following sentences in paragraph 9 do not permit this departure:‑
"A Court can issue a writ only because the sovereign function .is to the extent delegated to it by the sovereign, that is to say, by the State, Clearly the delegate cannot exercise the power against the sovereign itself, and that has been made clear over centuries of decisions by the Courts in England where the writs first originated by delegation from the King, and this has been followed in the United States where the sovereign power descended to the people and is exercised in their name by the President. As an American Judge recently said: There cannot be two sovereigns, and the sovereign will not issue a prerogative writ against itself'. The Law Ministry has had to appeal a large number of times to the Supreme Court to have the position properly established, and has succeeded in every appeal but one."
The words "the position" mean the statement that no writ could issue to the Government without any qualifications. Learned counsel for the respondent, Sheikh Abdul Haque, admitted that this was an inaccurate statement, for in no case has the Supreme Court reversed the decisions of the High Courts on the ground that no writ at all could be issued against the Government.
11. After making the above incorrect statement, the respondent proceeds to point out the evil effects of the abuse of the writ jurisdiction by the High Courts, namely loss to the public exchequer and the remedy which the Government had to adopt to meet the situation by making a provision for issuance of named writs only. This is followed by these two sentences‑
(i) "This was to indicate, as politely as possible, that the writ was a writ confined to known limits and the limits could not be exceeded."
(ii), "I have to confess that even with this civility we have not entirely succeeded even yet, but this clause on one side and some very severe observations by the Supreme Court on the other have at least had the effect of indicating that after all there are limits and that the limits must be observed."
These sentences contain more than one statement. Firstly, the civil method (as apposed to possible savage operation) adopted by the Ministry of Law to teach the Judges the simple lesson that writs could be issued within their limits failed to achieve its object; secondly, that Judges of the High Courts instead of Appreciating the kindness shown to them did not refrain from exceeding the limits of their jurisdiction; thirdly, that for this abuse of jurisdiction the Supreme Court made severe observations against the High Courts; and forthly, that in spite of the use of both civil and harsh methods, the High Courts had not altogether refrained from abusing their writ jurisdiction. The word "politeness" means two things: One dropping of the words orders, directions, in the nature of, and to any person or authority including in appropriate cases any Government from Article 4 of the Laws (Continuance in Force) Order which replaced Article 170 of the 1956 Constitution so that the Judges may learn that "a writ is a writ". Perhaps the respondent would have shown more poetic sense by quoting Byron from "what is writ is a writ" than by attributing to the Judges of the High Courts in the two wings of Pakistan such scanty knowledge of English language. The second act of politeness indicated is the addition made to Article 6 of the Laws (Continuance in Force) Order to overcome the effect of a judgment of this Court to be mentioned presently. The primary object of the respondent, therefore was not to explain merely the change made in writ jurisdiction of the High Courts under ;the Transitional Constitu tion, but to point out and emphasise the abuse of this jurisdiction in the past which, he confesses, was to some extent, still in vogue.
12. The conclusion which the respondent draws from the above statement is contained in the following sentences:‑
"The great thing in any orderly system of Government (and without orderliness there is chaos) is that every organ of the Government should be best adapted to the work it has to do and should know what that work is and what its own frontiers are. This avoids duplication. It avoids friction. It prevents usurpation of function and consequent uncertainty, with all the public confusion and private misery that it can lead to."
For the first time, the respondent has made use of innuendoes and oblique references in his talk. In plain' language, what he meant was that the High Courts by interfering with the Government caused disarray and chaos resulting in public confusion and private misery.
13. The next paragraph, for the first ..time, refers to the interest of services as affected by the Laws (Continuance in Force) Order. A point is made that whereas this Court decided against the officers laying down that Government could not grant them extensions, the addition to Article 6 was made to overcome the effect of that judgment which the respondent was never able to understand, meaning thereby that it was not only mistaken but unintelligible. The statement is concluded by the assertion that notwithstanding the judgment of this court the respondent took it for granted that the Government could give extensions to its employees. The judgment in reference was, therefore of no consequence to the respondent, because he considered himself entitled to sit in judgment on it. This attitude of mind of the respondent fits in with the whole tenor of paragraphs 9 and 10 of the talk, viz., of a person in authority speaking about tale misconduct of his subordinates and inferiors.
14. The above analysis of paragraphs 9 and 10 shows what deep‑rooted contempt the respondent has for High Courts of this country, and in giving the talk he certainly wanted to impart it to his audience, for what respect could one have for a Court which knowingly exceeds its jurisdiction to interfere with the Government, resulting in uncertainty with ‑all the public confusion and private misery"; a Court which is neither amenable to civility nor to "severe observations by the Supreme Court" a Court which has caused extensive loss to public exchequer by giving numerous incorrect decisions against which the Government had to appeal a large number of times; a Court presided over by Judges who were unable to understand even the simple truth that "a writ is a writ". Could there be a more severe indictment of this Court at the hands of a person no less than the Secretary, Ministry of Law, Government of Pakistan In his statement before us the respondent laid claim to hold his own opinion about the judgments of this Court. Assuming that he had such a right, why share it with half a million civil servants. In doing so, was he not weakening their will to carry out the decrees, orders injunctions and writs issued by the High Courts. It is one thing to comment upon the efficiency and conduct of a Judge if called upon by the Minister or the President, and another to come out with gratuitous libel by making use of the occasion to explain the constitutional changes of 1958.
15. As mentioned earlier, the respondent while denying that he was guilty of contempt raised twofold pleas: (1) that paragraphs 9 and 10 of the speech amounted to legitimate criticism of the exercise of writ jurisdiction by the High Courts; and (2) that in giving the talk he performed an official duty and as such was immune from being tried for contempt assuming that he was guilty of it. The Attorney‑General added that in trying contempt matters Judges should not be sensitive, and Mr. Ghias Muhammad wished to refer to certain speeches published in the press to bring home to us that besides the respondent there were others who had exercised the privilege of vilifying the Courts. A large number of authorities were also cited from the Bar, including some of American Judges, in support of the pleas enumerated above, but as they have been dealt with at length by my learned brothers, Shabir Ahmed and Ortcheson, JJ. I would refrain from burdening this order with a repetition of their exposition.
16. The first plea raised by the respondent is based on the' principle of fair comment and its application depends on the facts of each case. Needless to emphasise, fair comments must be' based on accurate facts. But in the present case the very premises on which the indictment of the High Courts proceeds is per se erroneous. According to the respondent, no writ could at all Q issue against Government and the proposition was said to have been approved by the Supreme Court in all cases except one in which the Government filed appeals. Inquiries made by us, from the respondent revealed that so for as this Court is concerned, the objection that no writ could lie against the Government was raised in only one appeal and rejected by the Supreme Court. Mr. Mahmood Ali Qasuri drew our attention to two cases in which this Court had declined to issue writs, but on appeal the Supreme Court had reversed the judgments and directed the issuance of appropriate writs against the Government. When confronted with this position the respondent attempted to make out that in all appeals instituted by the Ministry of Law in the Supreme Court, instructions were given to the lawyers to raise this objection, but he did not know why the counsel had failed to carry out this mandate. We were not impressed by the statement and nothing more need be said about it. As to the qualification introduced during the course of the hearing that no writ lay in service matters, the position taken up by the respondent was again erroneous in fact and law. The theory of fair comment and legitimate criticism of all official Acts, including judgments of Courts, laid down by their Lordships of the Judicial Committee in Andre Paul Terenee Ambard v. The Attorney‑General of Trinidad and Tobago is, therefore, wholly inapplicable to the talk given by the respondent. Before proceeding to examine the next plea, it may be mentioned that counsel for the respondent brought to our notice some judgments of the Supreme Court to substantiate the statement of the respondent that severe observations were made by that Court against this Court for exceeding its limits in R writ jurisdiction, but it is unnecessary to quote those observations, R for it is wrong to maintain that what can be said by a superior Court while dealing with a judgment brought before it in appeal can be reiterated or utilised by any person for vilifying the Court from whose judgment the appeal was preferred.
17. The second plea viz., of qualified privilege has also no basis. The talk delivered by the respondent was not in perfor mance of his official duties for it is no part of the job of the Secretary, Ministry of haw, to impart legal knowledge to Section Officers in the various Ministries of the Government of Pakistan. No doubt, he was invited to give the talk as Secretary, Ministry of Law, but if he declined to oblige his audience, no one could have accused him of failure to perform an official duty. We, as Judges, are sometimes invited to address legal seminars and our suitability is determined by the office which we hold, but it does not mean that in delivering a speech on a legal subject we are performing an official duty. It is also to be borne in mind that the respondent agreed to the publication of the talk and two thousand copies of it were published for circulation to all the departments of Central and Provincial Governments as well as to be sent abroad. Moreover, the text of the two paragraphs reproduced and analysed above clearly makes out that the respondent simply took advantage of the occasion to reflect on the judgments of this Court and to bring it into contempt before the audience. In view of this without expressing any considered opinion as to the soundness of the principle on which reliance is placed in support of this plea the respondent cannot legiti mately invoke it in his defence.
18. The plea raised by the Attorney‑General that we should not be sensitive in trying the respondent is based on the assump tion that we are acting as Judges in our own cause. There are a number of authorities in which this rule has been referred to, but speaking for myself it did not, in the least degree, hurt my personal vanity that the respondent said something derogatory about the Court of which I am a member. But the law of contempt has, to my mind, two broad aspects:
(i) The necessity of maintaining implicit faith of the citizens in the dignity, efficiency and uprightness of the presiding officers of Courts so that the decrees, orders and injunctions passed by them are looked upon with respect and command willingness to carry them out.
(ii) To protect the person of the presiding officers from U being intimidated, vilified and abused while determining causes so that fear may not enter their minds and undermine their will to administer justice without fear and favour.
It is for these reasons that many eminent Judges of the High Court of England and members of the House of Lords have expressed a grave concern in this matter and observed that they will be failing in their duty to the Court presided over by them T if they omit to take suitable action against one who committed r any form of contempt towards it. Such an action is taken as a public duty as observed by Lord Chancellor CoHenham in Lechmere Charlton's case (Mylne & Craig's Reports, Vol. II, p. 316).
"When I felt it my duty to issue the order for the commit ment of Mr. Charlton, in November last, I said, what I am sure those who know me will give me credit for, that nothing but a sense of public duty induced me to issue that order. Nothing which had taken place before that time, or which has passed since, could possibly influence my feelings with regard to the most important duty which I had to perform."
19. Another way of looking at this proposition is that the prestige and authority of a Court are not the personal attributes of its Presiding Officers. They are necessary elements of its constitution, the underlying principle being that there should be complete willingness in the minds of the litigants to abide by and carry out its decrees and orders. If anything is done or said which is likely to weaken that will, it amounts to obstruction in the exercise of its jurisdiction and constitutes contempt of Court. If paragraphs 9 and 10 of the respondent's talk are calculated to achieve such a result, it would have amounted to an unforgiv able omission in the performance of our duty to this Court if the respondent was not brought before us and punished for committing its contempt. The question of our being sensitive, in judging our own cause, therefore, does not properly arise in the case.
20. Some American authorities were cited by the learned Attorney‑General and Mr. Abdul Haque to illustrate that although Presiding Officers of some Courts in the U. S. A were severely vilified no action was taken for contempt against the accused because the causes in relation to which these remarks were made had already been decided and the comments were not y calculated to obstruct the administration of justice. That, of course, is the law of the United States of America, but not of Pakistan or of England from which we have borrowed it. These authorities, therefore, had no bearing on the matter before us.
21. In the result I find that the words used by the respondent in paragraphs 9 and 10 of the talk delivered by him to Section Officers on the 15th of February 1960, at Rawalpindi were calculated to lower this Court in the eyes of all those who heard the talk and read the pamphlet and undermine its authority. As such he has been guilty of contempt of this Court and I agree with the sentence proposed to be awarded to him for it by my learned brother, Shabir Ahmad, J. and the order of payment of costs.
A. H.
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