MUJIBUR RAHMAN SHAMI Versus A JUDGE OF THE HIGH COURT

ORDER

1. KARAM ELAHEE CHAUHAN, J.‑ --Petitioner No. 1, Mujib‑ur- Rahman Shami and petitioner No. F. I R. Aijaz Hassan Qureshi, are printer and publisher of two periodical: namely, Monthly "Urdu Digest" and Weekly "Zindagi" The declarations of these periodicals were declared by the District Magistrate to have lapsed. There were filed three writ petitions, bearing Writ Petition No. 1064 of 1972, Writ Petition No. 1085 of 1972 and Writ Petition No. 1136 of 1972. for getting their declarations declared as still being intact. These writ petitions were dismissed by a learned Single Judge of this Court. hereinafter referred to as "the Judge or the aforesaid Judge", by his judgments and orders dated the 23rd of August 1972. These judgments. sit the moment, are under appeal in Letters Patent 'appeals Nos 149, 148 and 150 of 1972 respectively, along with another connected Appeal (L. P. A. No. 159 of 1972, which arose from Writ Petition No. 1048 of 1972, regarding another periodical, "Punjab Bench").

2. Apparently, being disgruntled from the aforesaid judgments, shortly thereafter on the 9th of September 1972 Mujib‑ur‑Rehman Shami wrote an article under his signatures which was published in the Weekly "AZAN‑E‑HAQ" Mianwali), hearing date 13th of September 1972, under the heading "" wherein (to state precisely) he wrote that he had learnt from reliable sources that the aforesaid Judge was being considered for elevation as a Chief Justice of the Lahore High Court. The writ inter alia stated that the aforesaid Judge was not fit even to remain a Judge of the High Court not to speak of being appointed as Chief Justice and his person was a disgrace to the Court itself, i.e. which, as already indicated, was the caption of the article. The then Chief Justice Mr. Justice S. Anwarul Haq, issued a notice for contempt of Court to Mujib‑ur‑Rahman Shami who was Editor; Dr. Aijaz Hassan Qureshi who was the Managing Editor and Printer and Khan Zaman Khan who was the publisher of the aforesaid Azan‑e‑Haq. This case being Cr. Original No. 45 of 1972 in these days pending before another Full Bench.

3. On 4 th of October 1972, the petitioners filed the present application being Cr. Original No. 50 of 1972 under Article 206(2)(a)(b) and (c) of the Interim Constitution of the Islamic Republic of Pakistan, in which they alleged that as the aforesaid Judge had committed contempt of Court, therefore, he deserved to be dealt with in accordance with law with the utmost severity tend prayed "that a rule nisi for contempt of Court may be issued by this Hon'ble Court . . . . ." The particulars of the alleged contempt as given in the petition were that in a case The State v. To/ Din and others (P L D 1972 Lah. 434), decided on the 9th of May 1972, the aforesaid Judge had (i) actually instructed the Advocate‑General; (ii) tried to influence Mr. Majid Nizami, Editor of the Daily "Nawa‑i‑Waqt"; and (iii) tried to influence the learned Judges of the Full Bench in diverse ways as will be apparent from the Photostats marked 'A' (two sheet), `B' (three 4 sheets) and `C' (three sheets). In view of the importance of the matter the case was placed before a Full Bench of Seven Judges and was heard by us. By a short order, dated 31‑10‑1972, for reasons to be recorded later, we dismissed this petition in limine. The present Judgment supplies the reasons for that order.

4. It is to point out that the petitioners were neither a party nor witnesses in the said case. They have filed this petition with an ulterior motive to harass the aforesaid Judge and pressurize him. If such petitions are encouraged then no Judge of a superior Court would be able to function freely because as and when be decides a case against a litigant there will at once be filed an application of this type. The petition merits to be dismissed on this short ground of mala fides on the part of the petitioners. This aspect of the matter has been further highlighted by us in subsequent paragraphs of this judgment.

5. Learned counsel for the petitioners just in order to create sensation and confusion tried to argue that in the matter of contempt of Court, law admitted exception of no person. He tried to touch upon this point by referring to Article 206 of the Interim Constitution which dealt with the powers of a High Court to punish its contempt, and the other similar relevant provision which dealt with the Supreme Court to punish its contempt. He submitted that if a Supreme Court Judge committed a contempt of High Court then the High Court could proceed against this said Judge in contempt and similarly, if a High Court Judge committed contempt of the Supreme Court, the said Court could proceed against him. He further argued that if a Supreme Court Judge committed contempt of Supreme Court, then he could be proceeded against by other Supreme Court Judges and in the same way if a High Court Judge committed contempt of High Court, he could be proceeded against by the other Judges of the. High Court. The argument is so destructive of the very structure, nature and concept of superior judiciary that ft tends instead of maintaining or enhancing tie prestige of the superior Courts, rather to undermine it and we do not want to entertain it and reject it straightway without going further deep into illustrative situations posed by him. In Mian Jamal Shah v. The Member,. Election Commission and others (P L D 1966 S C 1), while examining the question as to whether a High Court could issue writs to its own self or against decisions of its own Judges, the Supreme Court quoted with approval an observation which appeared in one of the judgments quoted by the High Court itself in Khan Nasrullah Khan v. The Member, Election Commission, Pakistan and 2 others (P L D 1966 Lah. 850), that, the process involves the rather ludicrous position that Judges are called upon themselves to show "cause to themselves". They further held that, quite apart from the aspect of 'ludicrousness', there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the Superior Courts, which could be urged in support of such a provision". In Article 206(3), it is written that the exercise of power of punishing for contempt by a High Court may be regulated by law and, subject to law, by rules made by the Court. The word 'law' it is well‑established covers also the law declared by tie Supreme Court. In this view of the matter, the law declared by the Supreme Court in Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan and others, is an apt answer to the argument of the learned counsel. There is even otherwise ample case‑law to the same effect. It was held In re: Babul Chandra Mitra (A I R 1952 Pat. 309) that:‑

2. "It cannot be right to say that High Court can issue a writ or order directly to itself to quash an order made by itself. It is immaterial whether in making the order the High Court acts in a Judicial or Administrative role. Under Article 226(1), the High Court shall have power to issue to any person or authority directions, orders or writs. It is apparent that a writ cannot be issued by the High Court to itself for the process involves rather the absurd position that it calls upon the Judges to show cause to themselves, why they should not be directed to quash something they themselves have determined. It is also manifest on principle that a Judge is without juris diction to issue a writ or order to another Judge of co‑ordinate jurisdiction and power to compel performance of duties. The very nomenclature of the writs‑'mandamus, certiorari, prohibi tion' implies superior power‑the power of a superior authority to compel an official or an inferior tribunal to act in a certain manner. The same reason which prohibits an inferior Court from controlling the conduct of a superior tribunal applies in equally cogent manner to the effort of one Judge to compel the action of another Judge of co‑ordinate jurisdiction and power."

3. In Rex v. Justices of the Central Criminal Court ((1925) 2 K B 43), it was held that:‑

4. "That proposition, I understand, is not disputed by Sir Leslie Scott, but he says either that the Central Criminal Court is an inferior Court within the meaning of that rule, or, if it is not for all purposes an inferior Court that for the purpose of exercising its jurisdiction under section 20 of the Act of 1834 it is an inferior Court, which is subject to the overriding jurisdic tion of this Court. At first sight one would say that it cannot be correct to assert that any Court can issue a writ of certiorari directed to itself to quash an order made by itself. That, however, is what the proposition advanced in support of this motion comes to. All the Judges of this Court are Judges of the Central Criminal Court, who by section 2 of the Act of 1834 are to 'use and exercise all powers and authorities belonging to Justices of over and terminer and gaol delivery'. The order in question, because it is an order of the Central Criminal Court. must, therefore, be presumed to be made by Judges of this Court. It matters not by which two particular Judges the order is signed, for being an order of the Central Criminal Court it is in effect an order of the Judges of this Court."

5. In Skinner v. Northallerton County Court Judge ((1898) 2 Q B 680), it was held that:‑

6. "A Judge of the High Court in the exercise of his jurisdiction cannot be controlled by writs of prohibition or certiorari, but only by appeal; and if the County Court Judge in the exercise of bankruptcy jurisdiction is, as would seem to be the case from the decision in 'In re: New Par Consols (No. 2) (1898) 1 Q B 668, placed on an equal footing, he is Judge of law and fact, and his judgments are subject to appeal only, and cannot be reviewed by certiorari."

7. In Goonesinha v. O. L. de Kretser (A I R 1945 P C 83), it was held at page 84 column 2 that, "it is well‑settled and counsel did not seek to argue to the contrary, that a Court having jurisdiction to issue a writ of certiorari will not and cannot issue it to bring up an order made by a Judge of that Court. Now will a superior Court issue the writ directed to another superior Court . . . " Reference for the same point can also be made to Rahmatullah Khan and others v. Pir Shahzada and 3 others (P L D 1961 Pesh. 40), Bashir Hussain v. State (P L D 1961 Lah. 164), Muhammad Hussain v. Gulrez Khan etc. W. P. No. 1947 of 1966 decided on 23‑10‑1972 by one of us (M. A. Zullab, J., after referring to a good deal of case‑law). and Malik Firoz Khan Noon v. State (P L D 1958 S C (Pak.) 331). In the last mentioned case it was observed by the Supreme Court that a Single Judge of a High Court was not Inferior (for example) to a Division Bench of the same Court. All this case‑law shows that Judges of superior Courts inter se possess coordinate jurisdiction and if in the matter of writs etc., one High Court Judge cannot issue a writ to another Judge of the same Court, no process for contempt of Court can lie (for example) for taking action against the Judge disobeying the order of another Judge, and if this can be true qua an alleged contempt of this type, the position should be the same qua contempts of other types. In the matter of issuing process of contempt there is inherently implied a superior position of the Judge or Judges or the Court and the Inferior position of the person to whom process is to be issued. Judges of a High Court being of same status, no one is superior or inferior and on this principle as well a process of contempt cannot be issued by one Judge to another. In K. L. Gauba v. The Hon'ble the Chief Justice and the Judges of the High Court of Judicature at Lahore and another (A I R 1942 F C 1), where K. L. Gauba moved the Federal Court alleging that the High Court Judges had committed contempt of Court in perversely refusing to him a certificate to file an appeal, it was held that, "it has not been necessary for us to go Into all the facts alleged in the petition, but we must not be taken as assenting to the proposition that proceedings by way of contempt of Court could ever be the appropriate remedy against a High Court, even if all the facto alleged were true". A Full Bench of this Court in a recent judgment, where a learned Single Judge had issued a notice of contempt to the Registrar of this Court for alleged disobedience of his order held, that in cases where scope for disciplinary control against High Court Establishment and Staff duly existed, resort to contempt proceedings was not appropriate. (See State v. Mr. M. H. Sindhar Cr. Orig. No. 38 of 1972 decided on 18‑2‑1972). From that point of view, on the same principle, in the presence of control on the Judges of the Superior Courts, duly existing in the Constitution itself, resort to contempt proceedings is not appropriate. Learned counsel for the petitioners referred to Article 206 of the Interim Constitution to argue that the power conferred on High Court to punish its contempt vis‑a‑vis "any person", did not exclude Judges of the High Court' or as a matter of fact of superior Courts. It Is obvious that "any person" must be any person other than the High Court itself or the High Court Judges, just as in Article 20 t where power to issue writs to "any person" is conferred, the words "any person", exclude the High Court Itself or its Judges. This view will be consistent with a passage which occurs in the celebrated judgment of Wilmot, J., in Rex v. Almon ((1765) W O 256) where it is written that, "the Constitution has provided very apt and proper remedies for correcting and rectifying the involuntary mistakes of Judges, and for punishing and removing them for any voluntary perversions of justice. But if their authority is to be trampled upon by pamphleteers and news‑writers, and the people are to be toll that the power, given to the Judges for their protection, is prostituted to their destruction, the Court may retain its power some little time, but I am sure it will instantly lose all its authority I and the power of the Court will not long survive the authority of It is it possible to stab that authority more fatally than by charging the Court, and more particularly the Chief Justice, with having introduced a rule to subvert the constitutional liberty of the people? a greater scandal could not be published". It may be pointed out that in view of our subsequent finding that no contempt of Court has been committed and nor was the course of justice Interfered with or attempted to be Interfered with in any manner and that the petition is motivated and mala file, the present point remains merely of secondary nature.

6. However, on merits also the petitioners have no case. Reference at this stage may be made to the case of State v. Taj Din and others, in which it was alleged that the aforesaid Judge bad tried to influence various persons hereinbefore mentioned. The brief facts of that case as evident from the reported judgment are that on the 7th/8th of March 1972, certain persons who had long ago been ejected in the course of law from land belonging to and by members of the family of the said Judge, took out a procession on the Mall, Lahore, leading up to the Governor's House carrying placards and Phouting slogans which, according to the evidence led In that case, were intended to be against the said Judge in his capacity as a Judge of this Court. News of the said procession in the form of a photograph of the procession and the placards were published in a late edition of the Daily Nawa‑i‑Waqt, dated 9‑3‑1972. The then Chief Justice, during those days, was In Rawalpindi in connection with the War Inquiry Commission, therefore, this fact was brought by the aforesaid Judge to the notice of the next puisne Judge in writing, who on 9‑3‑1972, issued notice to (1) the various ex‑tenants (Cr. Original No. 9 of 1972); and (2) Mr. Majid Nizami, Editor of the Daily Nawa‑i‑Waqt (Criminal Original No. 10 of 1972), to show cause as to why they should not be punished for baiting com mitted contempt of the Judge concerned and the Court. These cases were heard by a Full Bench consisting of three learned Judges of this Court. The Full Bench convicted and sentenced five ex‑tenants whose identification in the procession etc., was established, to a simple imprisonment of one month each, but acquitted Mr. Majid Nizami. The convicted five tenants have filed Cr. A. No. 55 of 1972 which these days is pending in the Supreme Court.

7. Taking up the plea that the aforesaid Judge had actually instructed the Advocate‑General who was appearing in support of the rule before the Full Bench, learned counsel for the petitioners referred to paragraphs 21 to 25 of the reported judgment titled The State v. Taj Din and others, and submitted that In that case Mr. Majid Nizami had tendered an unqualified apology In Court on 14‑3‑1972. The case was, however, adjourned and when it was taken up on 29‑3‑1972, Mr. M. B. Zeman learned Advocate‑General made the following statement:‑

8. "His Lordship . . . has instructed me to state before your Lordships that he is satisfied with (and accepts) the apology of Mr. Majid Nizami and requests that the rule be discharged against him. As for the others, I will make my submissions.'

9. In the published report of the case, it is then written;‑

10. "He then submitted that the words (and accepts) which now appear in brackets in the quotation be deleted as it was for us to accept the apology. We deem it fit at this stage to adjourn this case."

11. Mr. M. Anwar argued that the act of giving instructions on the part of the said Judge to the Advocate‑General, to make a statement or request in Court on his behalf was contempt of the Court. His argument was that it was laid down in the Code of Conduct issued by the Supreme Judicial Council under Article 211(8) of the Interim Constitution of the Islamic Republic of Pakistan (or under corresponding provisions of the earlier Constitution of 1962), that a Judge should not hear a case in which he was personally interested. He submitted that since a Judge, whose contempt is committed on the theory propounded by him cannot himself sit in a Bench to bear a case about his own contempt, therefore, on the same principle and as a necessary corollary thereto, he could not give instructions to the Advocate -General to place his request before a Beach which was hearing a case regarding the contempt of that Judge. The argument, with respect, is not correct both as regards the principle propound and as regards its corollary and is based on a totally wrong premises that a Judge whose contempt is committed cannot bear a case about his own contempt. It is stated in Halsbury's Laws of England (Third Edition), Volume 8, in Para. 9, at page 7 that, proceedings for punishing contempt are taken not with a view to protect either the Court as a whole or the Individual Judges of the Court from the repetition of the attack but with a view to protect the public and specially those who either voluntarily or by compulsion are subjected to the jurisdiction of the Court, from the mischief they will incur if the authority of the Tribunal be undermined or impaired. The gravemen is an endeavour to shake the confidence of the public in the Court. To the same strain are the observations of Wills, J, in Rex v. Davis ((1906) 1 K B 32). Woodrooffe, J, in Re: Motilal Ghose (I L R 45 Cal. 169), observed that, as regards jurisdiction, a number of stale objections were taken. It is not necessary to go into the history and nature of contempt. It is too late now to contend that we have no other jurisdiction than that conferred by the Indian Penal Code, or that in exercising this jurisdiction we are Judges in our own cause. The jurisdiction has been approved many years ago by, amongst other Judges, their Lordships of the Privy Council. The second observation applies to all cases of contempt, and if it were given effect to, the Court would be deprived of its jurisdiction in every case. In the present one, the Court, as it is entitled to do, issued the rule of its own motion. The Court, however, in such cases, does not seek to vindicate any personal interests of the Judge, but the general administration of justice, which is the public concern'. It was held in Re: K. L. Gauba, Barrister‑at‑Law (A I R 1942 Lah. 105), "this shows that if there was any force in this contention, the Contemner with a view to oust the jurisdiction would have merely to scandalise not a particular Judge but all the Judges of the Court as a whole in order to escape from punishment". Similarly, in Almon's case (Rex v. Almons), Wilmot, J. (in his celebrated judgment) observed that, Contempt cases call for a more rapid and immediate redress, not for the sake of the Judges, was private individuals, but because they are the channels by which the King's justice is conveyed to the people. These propositions were highlighted In re: K. L. Gauba, Barrister‑at‑law, Lahore, where it was laid down that a Judge could hear a case about his own contempt. The same was the view expressed in an earlier case Re: Shamlal (A I R 1932 Lah. 502). This proposition was reaffirmed is the Crown v. Amin‑ud‑Din Sahrahi and another (A I R 1949 Lah. 266), and was approved in Sir Edward Snelson v. The Judges of the High Court of West Pakistan and another (P L D 1961 S C 237) and Ashfaq Ahmad Sheikh v. The State (P L D 1972 S C 39), where it was held that proceedings for contempt of

12. Court are an exception to the general rule that a Judge should not bear any matter in which he has personal interest in the decision on it. There are a large number of precedents where E the same Judge(s) whose contempt was committed heard and decided those cases. See In ref Moti Lal Ghost and others, In re: Murli Manohar Prasad, In re: William Tayler, in re: Shamlal and K. L. Gauba. This will show that the very basic argument of Mr. M. Anwar that a Judge cannot hear case about his own contempt is without any substance and, as such, his next corollary which he deduced from it that the concerned Judge could not give instructions to the Advocate General must equally fall to the ground. From that point of view since the aforesaid Judge could have himself heard and decided the case of the State v. Taj Din and others, inasmuch a e, the various facts involved therein were within his personal knowledge and he could have explained them away, there was nothing objectionable in his giving instructions to the Advocate- General to place his request before the Full Bench. Moreover, what instructions after all did the learned Judge give? All that was stated before the Full Bench on 29th March 1972, was that since Mr. Majid Nizami bad already tendered an apology on 14th March 1972, therefore, In that view of the matter, the concerned Judge requests that notice against Mr. Majid Nizami may be discharged. It is not to be forgotten that the initial note for initiating contempt proceedings was written by the said Judge himself to the next Puisne Judge, on which he directed issuance of notices to the alleged contemners and if the aforesaid Judge fifteen days after the tender of the apology, conveyed his request to the Full Bench through the Advocate‑General, his act of given instructions to the Advocate‑General, for placing his request before the learned Members of the Full Bench, can by no stretch of imagination be considered as an interference with the course of justice.

8. Coming to the second accusation that the said Judge tried to influence Mr. Majid Nizami, learned counsel for the petitioners referred to paras. 21 to 27 of the printed report of The State v. Taj Din and others. A perusal of the said paras. shows that when on 14th March 1972, the case first came up for hearing Mr. Majid Nizami was accompanied by Kh. Abdur Rahim, Advocate. Though verbal regrets were shown by Kh. Abdur Rahim on behalf of his client, but he was directed by the Court to put in a written statement for which purpose, the Full Bench was adjourned for some time. When the Court reassembled Khawaja Abdur Rahim filed a formal written state ment which was on the lines of regrets earlier orally shown by Khawaja Sahib. The Court told Khawaja Sahib and Mr. Majid Nizami that the written statement filed could not be considered as apology, "and that if he wanted to submit an apology or if that was his intention, then It would have to be unconditional if it had to be taken into consideration at all. He was told, however, that he was at liberty not to do so if he was so advised". On this Mr. Majid Nizami conferred with his two Advocates, namely, Kh. Abdur Rahim and Mr. Aftab Farrukh who were representing him and said that he would like to make a statement in the nature of an unqualified apology. A statement was then recorded which was to the following effect:‑

13. "Q. We understand that you want to tender an unqualified apology. Is that correct?

14. A. Yes Sir.

15. Q. Are you aware that it Is not incumbent upon us to accept such an apology?

16. A. Yes Sir.

17. Q. Do you still want to tender an unqualified apology?

18. A. Yes Sir. I tender an unqualified apology for the publication of the offending photograph."

19. The case was then adjourned because the Full Bench wanted to hear arguments in both the cases together. When It was taken up on 29th March 1972, the Advocate‑General made a statement in Court, putting‑forward the request of the aforesaid Judge, which has already been dealt with by us. The case was adjourned and came up for hearing on 5th May 1972. On that date Mr. Majid Nizami made another statement pleading certain conversation which he had with Mr. Humid‑ul‑Makki, Mr. S. M. Zafar, Mr. Sated Akhtar and Kh. Abdur Rahim prior to 14th March 1972. It is not necessary to reproduce that statement here and at the moment it will be sufficient to state that Mr. Majid Nizami ended his statement by saying that;‑

20. "I, therefore, respectfully submit that the apology was tendered out of respect and esteem for this Court which I always had, but I think that the publication of the photograph does not constitute contempt because the photograph did not relate to the judicial functions or capacity of the learned Judge. I need not recreate that I have the highest esteem for this Court which I always had and I have always been of the view that even if such a case Is contested, an apology should nevertheless be filed out of respect for the Court."

21. The Bench had formulated inter alia, the following questions in the case:‑

22. Q. 5.‑--Whether the publication of the photograph of the procession with the caption underneath in the Nawa‑i‑Waqt constitutes contempt of Court by Mr. Majid Nizami?

23. Q. 6.--‑If the answer to question No. 5 be in the affirmative what is the effect of the "apology" tendered by him in the light of his statement dated 5th May 1972?

24. On question No. 5, the finding of the Full Bench was in the negative and regarding question No. 6 it held that in view of its finding on question No. 5, question No. 6, did not arise. Mr. M. Anwar tried to argue that the aforesaid Judge tried to influence Mr. Majid Nizami by suggesting that if unqualified apology was tendered he would be acquitted and it was for this reason that he tendered an unqualified apology on 14th March 1972, in Court. The learned counsel further submitted that the said Judge had on telephone even dictated the form of the apology to Mr. Saeed Akhtar which exists at page 442 of the printed report of the case. The pleas raised have no substance. Firstly, because a perusal of statements of Mr. Majid Nizami, dated 14th March 1972 and 5th May 1972, shows that on his part he had no serious objection to the tendering of an apology because he ended even his later statement by saying that, he always had the view that even if such a case was contested, an apology should, nevertheless be filed out of respect for the Court. In the face of this frame of mind of Mr. Majid Nizami, to suggest that he had no intention to apologise at all is nit correct. Secondly, the point which is to be noticed is that the aforesaid two statements of Mr. Majid Nizami In unequivocal terms show that he had not come into any direct contact with the said Judge. This was conceded by the learned counsel for the petitioners and this, according to us, should be the end of the matter, because whatever otherwise has been allegedly happening between the advisers, friends and the counsel of Mr. Majid Nizami was entirely their own concern and strangely enough even though from that point of view all of them would be in the same boat, the petitioners for the reasons best known to them, did not file any contempt application against them, but only picked up the learned Judge, obviously, with an ulterior motive to wreak vengeance of .the dismissal of the earlier writ petitions about declarations of their periodicals. Thirdly, the apology tendered in Court did not even otherwise tally with the one which was allegedly attributed to the said Judge as having been dictated by him on telephone to Mr. Sated Akhtar. Fourthly, on 14th March 1972. Mr. Majid Nizami was under no influence because even on that date he had initially shown only regrets and it was after the Full Bench told him to tender an unqualified apology if he at all wanted to apologise that he made a statement tendering an unqualified apology. The plea, therefore, that Mr. Majid Nizami had in any manner been infi;aen,ed by the learned Judge in that respect, has no substance. Fifthly, various circumstances highlighted earlier clearly establish that the petitioners have no aim except to drag the learned Judge into a public enquiry and create a scandal of a controversial nature. The petitioners in their petition made reference to the reported judgment of the State v. Taj Din and others, for the purpose of referring to the statement of Mr. Majid Nizami but did not either plead nor otherwise disclose as to what was the stand of Mr. S. M. Zafar, Mr. Saeed Akhtar or of those who otherwise might have been concerned in any manner with the aforesaid alleged talks. In these circumstances, we are justified in assuming that the statement of Mr. Majid Nizami was itself of a con troversial nature and if the Full Bench itself did not feel that any occasion had arisen to go into that statement, on our part, we too feel the same way. Mr. Majid Nizami in the whole of his statement nowhere pleaded in so many words that the learned Judge had influenced car had tried to influence him and obviously, the petitioners cannot say that which even the maker of those statements did not so state in any express term. The plea taken by the petitioners thus has no substance and is hereby rejected.

9. Taking up the third allegation that the learned Judge had tried to influence the three learned members of the Full Bench, the petitioners' counsel wanted to refer to photostats marked "A" (two sheets), "B" (three sheets) and "C" (three sheets). Before the learned counsel could advert to the aforesaid photostats, Mr. M. B. Zaman learned Advocate‑General, inter jected and submitted that the aforesaid documents were parts of a highly‑top secret and confidential correspondence which passed between the then Chief Justice S. A. Haq and the learned members of the Full Bench in connection with a certain query from the President. This aspect of the matter was not denied by the learned counsel for the petitioners. The learned Advocate- General thus submitted that in that view of the matter, it was evident that the petitioners were either thieves for having stolen the aforesaid highly confidential material or were otherwise receivers of secret material. We asked Mr. M. Anwar to throw light on this aspect of the matter, but his reply was that his clients were not prepared to disclose how, from where and from whom they had obtained the aforesaid material. In this context, the learned Advocate‑General argued that the scruples of the petitioners were highly doubtful and they could not base a cause of action on a highly top‑secret, stolen material. This Court, he argued should not be a tool in the hands of such disgruntled litigants who wanted to place a premium upon their own crime for an ulterior motive of harassing a Judge who decided their earlier writ petitions against them. We have attended to this matter and our view is that since the petition has not been filed in good faith but is of a malicious and vindictive nature ands has an ulterior motive of putting up Judges against one another I. It should not be encouraged and no cause of action, in view of the facts and circumstances of the case should be allowed to be based upon the admittedly top‑secret and highly confidential correspondence of this nature which has been obtained by the petitioners through under‑hand means. Learned Advocate‑General referred to section 5 of the Official Secrets Act XIX of 1923, which makes the delivery and receipt of official secrets (and instruments) as an offence. The contention of the learned Advocate‑General is correct and as wrongful "delivery" and "receipt" of secret official instruments is an offence, therefore, from that point of view the said instruments cannot be "received" In evidence. Learned Advocate‑General also referred to Chatterton v. The Secretary of State for Initial‑in‑Council ((1895‑9) All E R R R 1035), where a communication had been sent by the Secretary of State to the Under‑Secretary of State about the capabilities of an army officer in order to enable the Under‑Secretary of State to answer a question in the Parliament. This communication was made In the course of official business. An action for libel was brought on the aforesaid communication. Lord Esher M. R. held as follows:‑

25. "This is an action of libel brought against the Secretary of State for India in Council. It is said that the action is not brought against the Secretary personally, but against him as a corporation. It does not signify whether that be so or not; the substance of the thing is this, that it Is an action of libel brought against a high official of State in respect of a statement contained in a document sent by him to his Under‑Secretary. The plaintiff's case shows that this document was written and sent by the defendant to his Under‑Secretary In the course of carrying out his official duties as a Secretary of State. The Queen's Bench Division has held that the action cannot be maintained, on the ground that such an act as that which is the subject of the action cannot be inquired into by a civil Court of law. It is beyond the powers of a civil Court to hold any inquiry upon the matter. In all the reported cases upon the subject it has been laid down that a Judge should stop the case, if such an action came before him for trial, because he would have no jurisdiction even to entertain the question. As the action cannot be maintained at all, I think it would be vexatious to allow it to go on.

26. What is the reason for the existence of this law. It does not exist for the benefit of the official. All judges have said that the ground of its existence is the injury to the public good which would result if such an Inquiry were allowed as would be necessary if the action were maintainable. An inquiry would take away from the public official his freedom of action in a matter concerning the public welfare, because he would have to appear before a jury and be cross‑examined as to his conduct. That would be contrary to the interest of the public, and the privilege is therefore, absolute in regard to the contents of such a document as that upon which this action is founded. I shall not go through the reported cases since they are all to the same effect. The result of them is summed up thus by Mr. Fraser in his book on Libel and Slander (1 st Edn.), p. 95.

27. `For reasons of public policy the same protection would no doubt, be given to anything In the nature of an act of State for example, to every communication relating to State matters made by one Minister to another, or to the Crown.'

28. I adopt the paragraph, which seems to me to be an exact state ment of the law. This case comes within those words and the plaintiff's action is not maintainable. I, therefore, think that the action must be dismissed as vexatious, and the judgment of the Queen's Bench Division armed."

29. Kay L. J, held as follows:‑

30. "This Is an action of libel brought in respect of a statement in a communication from the secretary of State for India‑in; Council to his Parliamentary Under‑Secretary. Assuming for the purpose of argument that that statement is untrue and malicious, the question arises whether it is not absolutely privileged so that no action can be maintained upon it. The communication was made by the defendant to his Parliamentary Under -Secretary in order that it might be read as an answer to a question which the plaintiff had caused to be put to him in the House of Commons. That seems to me to be clearly an act of State. If an action of libel can be founded on such a matter as that, it seems to me that the Government of the country could not be carried on.

31. Could an action of libel, founded on such a statement as we have here, be brought against the Secretary of State personally? The nearest authority to the present case that I know of is Anderson v. Hamilton (1816) 2 Brod. & Bing.

156. Lord Ellenborough there said (2 Brod. & Bing. 157, n.):

32. 'I do not like breaking in upon this correspondence; it might be pregnant with a thousand facts of the utmost consequence respecting the state of Government, the connection of parties, the state of politics, and the suspicion of foreign powers with whom we may be In alliance. Then it is said the fact that there has been a complaint made against the defendant by the plaintiff to Lord Liverpool is the only fact sought to be put in evidence on this occasion; but it is not competent to the plaintiff to get at that fact, if it be embodied in an official letter. Neither can an extract of such a letter be admitted, for the plaintiff must be entitled to the whole or none; and I think that the whole of this letter is not admissible, on account of the objections taken by the counsel for the defendant.

33. That decision seems to me to be to the effect that production of the letter containing the libel could not be enforced, nor could secondary evidence be given of its contents. The Court would not allow the letter to be put in evidence, nor secondary evidence be given of what it contained.

34. That was also the view taken by the Court in Home v. Bintinck ((1840) 2 Brod & Bin;. 130). That was an action of libel, brought against the president of a military Court, appointed by the Com mander‑in‑Chief to hold an inquiry Into the conduct of an officer, in respect of a statement in the report thereupon made. The Court held that neither could the report be received in evidence, nor could secondary evidence of its contents be accepted, and it was absolutely privileged. Dallas, C. 1, says (2 Brod. & Bing. at p. 162) that the question was whether, if Sir Henry Torrens, who, was then Secretary to the Duke of York, the Commander‑in‑Chief, had been willing to produce the report: 'it would not have been the bounden duty of the learned Judge before whom the cause was tried, considering that this document was a secret, not the privilege of the party holding it, but of which he was a trustee on behalf of the public, to have Interposed and prevented the admission of such evidence.'

35. He then refers to certain cases is which, for reasons of State and Policy, Information is not permitted to be disclosed, and he says:‑

36. 'What is the ground upon which these cases stand, except it be tie ground of danger to the public goof which would result from disclosing the sources of such Information?'

37. That seems to me to be a direct authority for the proposition that for reasons of State policy a document of this kind is not one upon which an action is capable of being founded. The Court will not allow the document to be put in evidence, nor secondary evidence of it given, because to allow such a thing would be con trary to the public good. It is not denied that an action of slander cannot be founded upon a statement made in Parliament, and there can be no reason why a document from which that statement was made should be allowed to be used as the founda tion of an action. There may be other reasons why this action might be called vexatious, because it must fail if it should come on for trial. But the ground upon which I base my judgment is that the document complained of is an act of State, and is, there fore, absolutely privileged. I think that the passage read by the Master of the Rolls from Mr. Fraser's book on Libel and Slander accurately states the result of the cases on this point. I, there fore, agree that this appeal fails, and should be dismissed. A. L. Smith L.J., held as follows:‑

38. "This action has been dismissed as vexatious by the master, by the Judge at chambers, and by the Divisional Court, and in my opinion it has been rightly dismissed. Two grounds have been suggested why this action ought to be dismissed. One, that it is a document passing between the Secretary of State and his Under‑Secretary for the purpose of meeting a question that had been put in the House of Commons; and, secondly. that it la a communication by the Secretary to his Under‑Secretary made in the course of carrying out the duties of his office. The question is, whether that document is, or is not, absolutely privileged. I can find no case exactly covering the point; but it seems to me, looking at the ratio decidendi of Home v. Bentinck, Anderson v. Hamilton and Dawkins v. Lord Rokeby (1873) L R 8 Q B 255 that under the circumstances of this case, an absolute privilege attaches to the document complained of. But I am of the opinion that it is sufficient ground far holding this document to be absolutely privileged to say that the communi cation from the Secretary of State for India to his Under -Secretary was a document which came into existence through the carrying out by the defendant of his official duties. Con sequently the document cannot be produced in evidence in a Court of justice. The reason why it cannot be produced is that it would be contrary to the public welfare, and, though no objection to producing it were taken by the defendant, it would be the duty of the Judge at the trial to intervene and forbid its being made use of. Moreover, it would also be his duty to forbid secondary evidence being given of its contents. The result is that, supposing this action were allowed to go on, it would be quite useless, because the alleged libel could not be produced, nor any evidence given of it. The Judges of the Divisional Court, in the exercise of the inherent jurisdiction of the Court, dismissed the action as vexatious on the ground that by no possible means could the plaintiff succeed in it. I entirely " agree with that, and the appeal must be dismissed."

10. In Wamanrao v. Emperor (A I R 1926 Nag. 304) it was held as follows:--

39. "Coming to the merits of the application, these seem to me to be non‑existent. Here we have a document which, not only the Magistrate but the District Magistrate and Deputy Com missioner as well, believed to become which has been Improperly produced before the Magistrate as containing a communication between public officials in the discharge of their public duties. The document on the material before me, would prima facie appear to be a document of State, and under section 124 of the Evidence Act, no public officer can be compelled to disclose it. The fact that this document came from the custody of the pleader for the applicant, and that this pleader has apparently declined to disclose the method by which, or the circumstances under which the document came into his possession, can surely not better the position of the applicant in this connexion. For my own part, I fully concur with the dictum of Wills, J., in Hennessy v. Wright (1888) 21 Q B D 509, which is as follows:‑

40. `I think the above case abundantly show that no sound dis tinction can be drawn between the duty of the Judge when objection is taken by the responsible officer of the Crown or by the party, or when, no objection being taken by anyone, it becomes apparent to him that a rule of public policy prevents the disclosure of the documents or information sought.'

41. Here, the Magistrate after having obtained the sanction of his superior officer an the point, came to the conclusion that a rule of public policy made it incumbent upon him to prevent the disclosure of the said document. His action in the matter, therefore, assuming the document as I must do, to be a document of the State, was undoubtedly correct and the Magistrate would have failed in his duty if he had done otherwise than he did." .

42. 1n Lady Dinbai Dinshaw Petit and others v. The Dominion of India and another (A I R 1951 Bom. 72), it was held that:‑

43. "If the original of the document is privileged, that privilege cannot be got over by litigants getting hold of copies surrepti tiously of the document from the Secretariat and asking the Court to look at the secondary evidence of the document." case of Chatterton v. The Secretary of State for India‑In- Council was cited with approval in Sir Edward Snelson v. The Judges of the High Court of West Pakistan, Lahore and another, though on the peculiar facts of that case it was held that neither the occasion nor the instramed that is the speech which Sir Edward Snelson delivered was privileged, inasmuch as, the Government itself had released that speech in the form of issuing its two thousand copies to various persons and officers. Learned Advocate‑General also cited section 123 of the Evidence Act; in support of his view. As against all this, the answer of the learned counsel for the petitioners was that according to sections 123 and 124 of the Evidence Act, the privilege about the communications in question could be claimed by the Ex‑Chief Justice, before whom the case had come up for motion hearing on 9‑10‑1972 and as he took no exception or claimed no privilege as regards these docu ments on that date, it should, therefore, be resumed that he had agreed to the release of these instruments. The contention is not correct. The then Chief Justice along with two other learned members of this Bench at once attended to the maintainability of such a petition and desired an examination of this matter by a larger Bench which, obviously, means that the question of produc tion and admissibility of these instruments was not waived by his Lordship. Even otherwise it is to point out that his Lordship on executive side rather directed that an enquiry should be held as to why, how and from where the leakage of these documents had taken place. In these circumstances, to attribute an intention to lift the veil of secrecy regarding these documents to his Lordship the Ex‑Chief Justice is not correct. Two of the learned Judges (Dr. Nasim Hassan Shah and Shafi‑ur‑Rehman), who adorned the Bench with the learned Chief Justice on 9‑10‑1972, definitely remember that the Chief Justice did not say that he lifted the veil of secrecy about these documents. The learned Advocate- General, on instructions, therefore, was justified to claim the privilege regarding these instruments. The result remains that the photostats neither constituted the originals nor are they otherwise admissible in evidence and in the circumstances as have been noted earlier we cannot either look into or deal with them at all, and from that point of view the plea based on these documents fails.

11. Learned counsel for the petitioners argued that a Court of Law was not concerned with the question as to how any parti cular piece of evidence was procured in a case and its sole concern was to see as to whether that piece of evidence was relevant or not and if it was relevant, the mere fact that the evidence had not been regularly obtained, was no bar to its admissibility. He cited Kuruma v. The Queen (P L D 1957 P C 32), where during a police search certain incriminating material was found which was produced in evidence against the accused. Objection was taken that since the search was Irregular and had been carried out by an unauthorised officer, the evidence recovered as a result of such a search could not be brought against the accused. The Privy Council held that irregularity of search did not reflect upon the admissibility of the relevant evidence. It is obvious that the aforesaid case has no relevancy to the facts and circumstances of the present case. In that case neither the Official Secrets Act nor sections 123 and 124 of the Evidence Act were involved and nor was that a case of an action for libel or Contempt of Court based on secret or allegedly stolen documents. Similarly, there was no question of public policy as is involved in the cases of contempt. Be that as it may, the broad proposition still remains that caution and circumspection should be had to view in launching contempt proceedings' and the machinery of Court cannot be sot in motion for purpose of taking proceedings for one's feelings of private grudge anal malice as is the case here. The conduct of a petitioner who moves for contempt is always a relevant factor for the purpose of determining whether the purpose of application for contempt is a genuine one and the application itself is given to vindicate the cause of jeopardized justice or whether it is given for an ulterior purpose and purports to ventilate a fancied grievance sought to be paraded merely for the purpose of securing the harassment of the other party. The conduct of the petitioners in the instant case speaks volumes against them, not only as regards the alleged theft of the official secret documents but also otherwise. The Court is not bound to issue rule nisi in cases of such typo where the conduct of a person who wants the authority of law to be established is itself against law and ethics.

12. While trying to argue the matter with regard to the photostats in question, learned counsel for the petitioners was really In great difficulty and did not hesitate blowing hot and cold or taking up inconsistent and extreme positions. For instance, when the learned Advocate‑General argued that top‑secret stolen material could not be looked into, learned counsel for the petitioners submitted that it could be looked into. But when the learned Advocate‑General in reply stated that if It was to be looked into then the learned Judges concerned, in these Photo stats had themselves stated that they were not influenced in any manner and that, therefore, should be the end of the matter, the answer of the learned counsel for the petitioners was that do not look into those photostats. (We may point out here that our reading of the case The State v. Taj Din and others has confirmed us in the view that the learned Judges of the Full Bench were never attempted to be influenced and nor were they, in fact, influenced in any manner). At another stage, while arguing about these Photostats, learned counsel for the petitioners submitted that we ourselves should ask from the learned Judges of the Full Bench about that material but we told him that since in the whole of this case he had taken exception to any communication of a Judge with another Judge, how was he advising us to do that which he himself was attacking? Then he submitted that we should summon the threw learned Judges as witnesses In the case. We told him that if the aim of a petition for contempt was to maintain and enhance the prestige of a Court, then by the process suggested did his clients really intend to maintain and enhance that prestige or just undermine it by putting the various Judges in the arena one as an accused and the other as witnesses? The learned counsel realising that the entire motive stood exposed, gave no further answer. The upshot of the above discussion is that the present petition is not at all maintainable and merits to a be dismissed in limine and we hold accordingly.

13. Towards the end, learned counsel for the petitioners c made an oral request that he may be granted a certificate under Article 186(2) of the Interim Constitution that the case "involves" a substantial question of law as to the interpretation of this Constitution. In view of our finding that the present petition has been filed with a male fide purpose to wreak vengeance from and put pressure on the Judge concerned and also because on merits too, there is no case and no contempt of this Court has been committed and nor was the course of justice in any way interfered with or attempted to be interfered with, the certificate prayed for cannot be granted. The maximum that a genuine petitioner (which the present petitioners are not) can in a contempt case do is to lay an information before the High Court, but if the High Court finds no case for interference, or there is doubt about the bona fides of the informant, for which reason a petition is dismissed, that should be the end of the matter. There is no question of the involvement of any right of the so‑called informant in this respect because refusal to proceed in contempt is a purely discretionary domestic matter of the High Court. In Ali Mohammed v. Emperor (A I R 1945 P C 147), Lord Porter observed:‑

44. "Their Lordships have no desire to lessen the standard of care and circumspection to be observed by all the Courts before exercising their jurisdiction to commit for Contempt, but it must be remembered that the question of committal or non‑committal is one for the exercise of the discretion of the Court before whom the application to commit is brought. . ."

45. Even otherwise, for the principles to be followed in granting or refusing certificates reference may be made to Emperor v. Save Manuel Dantes (A I R 1941 Bom. 245) and Said Khan v. Shiam Lal and others (A I R 1944 All. 273), where it was laid down that if the decision otherwise depends upon certain factual findings (as is the case here) certificate of the kind prayed for should not be granted. The certificate is consequently refused.

14. The petition fails and is hereby dismissed in limine.

46. SHAMEEM HUSSAIN KADRI, J. ---‑I have gone through the judgment of my learned brother K. E. Chauhan, J. While concurring I am of the view that the fundamental question for our anxious consideration is as to whether this petition is maintainable. To put it briefly it shall have to be determined whether this Court can take notice of its contempt by a serving Judge of this Court. It would be necessary here to give the background of the law of contempt and its history. Para. 1 of section 1 of the Halsbury's Laws of England, Third Edition, Volume 8 deals with the kinds of contempt in the following words:‑

47. "The contempts to be discussed herein are mainly those of superior Courts of record, represented for this purpose by the High Court of Justice. Contempt of Court is either criminal contempt, consisting of words or acts obstructing or tending to obstruct, the administration of justice, or contempt fn procedure, consisting of disobedience to the judgments, orders, or other process of the Court, and involving a private injury."

48. The superior Courts have an inherent jurisdiction to punish criminal contempt. Para. 3 deals with jurisdiction to punish criminal contempt and is reproduced as under :‑

49. "Criminal Contempt is a misdemeanour punishable on Indict ment by fine or imprisonment, or by order to give security for good behavior.

50. The superior Court's have an inherent jurisdiction to punish criminal contempt by the summary process of attachment or committal in cases where an indictment, or an information in the Queen's Bench Division, is not calculated to serve the ends of justice. The power to attach and commit, being arbitrary and unlimited, is to be exercised with the greatest caution, and as the application of this remedy involves the withdrawal of the offence from the cognisance of a jury, it Is only to be resorted to where the administration of justice would be hampered by the delay involved in pursuing the ordinary criminal process."

51. Walker in his book "The English Legal System", Part III, Chapter II has dealt with the subject in the following words :‑

52. "Her Majesty's Judges control the due administration of justice and have an Inherent jurisdiction to punish conduct which is calculated to prejudice or interfere with the process of the law. Such conduct is termed a contempt of Court. Contempt may be of a criminal nature or of a procedural nature, the later generally termed civil contempt.

53. Criminal contempt is a common law misdemeanour punish able by fine and imprisonment. It consists of conduct, in or out of Court, which amounts to a contemptuous interference with the administration of justice.

54. * * * * *

55. There are many more subtle forms of criminal contempt such as: interfering with jurors or witnesses, the publication of matter during a pending case which is calculated to prejudice a fair trial

56. * * * * *

57. Macmillan on Encyclopaedia of the Social Sciences, Vols. III‑IV, has dealt with the subject on page 302 in the following words:‑

58. "Contempt of Court in Anglo‑American Law is generally such conduct as impedes the proper administration of justice or tends to bring it into contempt. Acts of contempt may be roughly classified as to their range as follows : contempt, in facie curiae or "in the immediate view and presence, "as they are called in the books, which consist of ouch misbehaviour in the presence of a Court as interferes with its proceedings; con tempt, not in the immediate presence of a Court but which are nevertheless explicit interferences with judicial authority, such as assaults upon witnesses or tampering with persons or property under the jurisdiction of a Court : contempts of process or orders in the course of an action or proceeding) contempt, by publication, consisting of objectionable extra‑forensic criticism of the conduct of a Court with reference to pending cause.

59. * * * * * * * * * *

60. * * * * * * * * * *

61. All legal systems which have reached the stage of maturity have developed closely analogous forms for securing and protecting the administration of justice. But, as must be apparent from its great complexity of classification and its exceptional pro cedure, the Anglo‑American law of contempts is peculiar. The law of contempts has become an exceptionally prominent problem to the common law system, and great abuses have grown up particularly in the United States. While the power to punish for contempt in some form has generally been admitted, the manner and extent of its exercise have precipitated the most bitter contoversies. Each class of contempt has, however, involved different considerations. There has been little or no objection to summary punishment for direct contempts In the Immediate view and presence. Among indirect or constructive contempts the most vehement objections have been raised against punishments for contempt for violation of labour Injunc tions and against the suppression of free criticism of the work of the Courts by the invocation of the doctrine of "contempt by publication", based upon the fiction that an extra‑forensic attack is In effect in Immediate view and presence. The summary power to punish for contempt without the intervention of a jury has been considered particularly aggravating in these classes of cases."

62. On page 304 it has been observed : "It is apparent, however, that not all of these contempts need necessarily be punished to make It possible to vindicate private rights". Decisions in matters of contempt involve not merely private rights but the public wel fare, dignity and supremacy and power of Implementation of orders made by the Justices.

63. Paul P. Ashley in his book "Say It Safely", Fourth Edition 1970, at page 95 has given his view about the law of contempt, In the following words :‑

64. Any act which significantly derogates the dignity and authori ty of the Court or which tends to Impede or frustrate the administration of justice may be a contempt of Court. The power to punish for contempt is inherent in the Courts. This is deemed essential to the preservation of an independent judiciary and the protection of litigants. judicial decisions, say that "the first requisite of the Court of Justice is that Its machinery be left undisturbed. Hence anyone who introduces himself into the due and ordinary administration of justice is guilty of contempt of Court and subject to punish ment".

65. With this background I now come to Article 206 of the Interim Constitution of Pakistan which bestows powers on the superior Courts In Pakistan to punish any person who abuses, interferes with or obstructs the process of the Court I or scanda lizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or con tempt or does anything which tends to prejudice the determination of a matter pending before the Court; or does any other thing which, by law, constitutes contempt of the Court. The exercise of the power conferred on a Court by this Article in‑ay hoe regulated by law and, subject to law, by rules made by the Court. Much stress was laid by Mr. M. Anwar on the interpretation of words `any person' used in this Article which according so him includes the Judges of the superior Courts. Article 201 of the Constitu tion, which confers powers on superior Courts for the grant of higher prerogative writs defines the word 'person' as under :‑

66. "'Person' includes any body politic or corporate, any authori ty of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal other than the Supreme Court, a High Court or a Court or tribunal establi shed under a law relating to the Defence Services of Pakistan."

67. A superior Court, therefore, cannot issue a writ to itself or to another superior Court. The interpretation which Mr. M. Anwar wants us to enforce is the right of punishing the members of the Superior Judiciary by one another. If this interpretation is accepted the superior Courts perhaps will have no other task but to array before them the members of the other Superior Courts on one cause or the other, on the application of disgruntled litigant. Obviously one of the litigating party is annoyed with the Judge In his decision, for, he has not the capacity to please both the plaintiff and the defendant. The Legislature never intended this objective which Mr. M. Anwar desires to be practiced, for, in this manner the litigant public will be deprived for good in the determination of their disputes.

68. In the interpretation of words "any person" in clause (2) of Article 206 the members of the superior Judiciary have to be excluded for another reason because if the Court cannot punish for its contempt the President, Vice‑President or the Governor, who are protected under Article 263 there is no reason why Judges should not be granted this privilege. Mr. M. Anwar vehemently argued that by so doing we will be reading something in the Constitution which is not there. This argument is fallacious, for, if a superior Court cannot issue a writ to another member of the superior Court, there will be certainly no power vested in this Court to array a serving Judge before itself for the contempt of one or other members of the Court.

69. Article 206 confers powers on the Superior Judiciary for preservation of their dignity, interference, obstruction and canalization of its members etc. This objective is likely to be negativated if the action proposed by Mr. M. Anwar is resorted to, for certainly the respect of the institution will be lost in the public and the Courts will not be in a position to implement their orders which would likely result in chaos which surely is derogatory to the administration of good Government in a country.

70. Learned Advocate‑General objected to the maintainability of this petition on several grounds including the one that the remedy for the petitioner lay in an application to the President under Article 211 of the Constitution and if the President was satisfied and has refused to take any action in the matter, the disgruntled petitioner cannot be permitted to wreak his vengeance by this malicious petition. If he could not obtain his objective legally he cannot be permitted to do so by any indirect method in having a recourse to this Court under Article 2056 of the Constitution. There is considerable force in the submission of the learned Advocate‑General.

71. For the foregoing reasons this petition cannot succeed and is dismissed. f do not think when a petition Is dismissed in limine it deserves the certificate asked for which is also refused.

72. NASIM HASAN SHAH, J.‑ ---By a short order passed by us on 31‑1072, this petition was dismissed to limine for reasons to be recorded later. I have had the advantage of perusing the reasons given in support of this order recorded by my Lords Mr. Justice K. E. Chauhan and Mr. Justice S. H. Kadri with which I agree generally, but in view of the extraordinary nature of the petition moved before us, I would like to add another reason, which to my mind, is by itself sufficient to entail the dismissal of this petition in limine.

2. This petition has been moved by two journalists against a Judge 1f dais Court, who had dismissed an earlier petition moved by then against the order of the District Magistrate, Lahore, holding that the declarations of their journal had lapsed on account of their failure to publish it for a certain period. In this petition, they pray that the said learned Judge should be com mitted for contempt of this Court because he attempted to Inter fere with the process of the Court by allegedly trying to influence the members of a Full Bench dealing with another contempt peti tion wherein he was interested. It is submitted that the Judge "is guilty of the grossest contempt of Court as he has attempted to divert the stream of justice and tee influence the Hon'ble Judges hearing the cause". The allegations levelled by the petitioners against tee Judge tend to bring him into hatred and disrepute, and are manifestly scandalous and, therefore, prima facie amount to contempt of Court. In regard to species of contempt, which consists in scandalizing a Judge, truth is not a valid answer, as has been clearly explained in the following observations occur ring in Israr Hussain v. Crown (P L D 1954 F C 313) at page 3251

73. "But neither before the Chief Court nor before us was cited any authority or opinion that where proceedings inn contempt are initiated against a person who has scandalized a Judge of a superior Court, truth can be successfully set up as a defence. The whole principle of the Law of Contempt is against any such defence and if the law were as contended for, the whole administration of justice would be brought into disrepute because in that case the honour of the Judges would be at the mercy of disgruntled litigants who might with impunity attack the Judges and when proceedings in contempt were taken against them, bring them into further contempt by pleading truth and offering to prove it. Judges would thus be constantly engaged in defend ing their own personal honour against the onslaughts of persons who are parties to causes pending in their own Courts. And where a Judge has thus been dragged into a forensic arena, public confidence in the administration of justice by him would be completely gone and a few such instances would be sufficient to expose the whole system to public ridicule."

74. The same view was expressed in the cases of K L. Gauba(A I R 1942 Lah. 105) and Sir Edward Snelson v. Judges of the High Court of West Pakistan (P L D 1961 S C 237). The same idea was described, in the following picturesque words, by Mr. Justice B. Z. Kaikaus, In the course of his judgment, in the case of Khohdkar v. State (P L D 1966 S C 140) at page 173 :

75. "The law of contempt which makes the integrity of Judges of superior Courts immune from attack is based on sound princi ples of public policy. Justice thrives in an atmosphere of dignity and even derives assistance from pageantry. It is essential for the administration of justice that Judges of superior Courts be absolutely protected from attack for otherwise it would be difficult for them to function at all. Also the con sciousness that he is immune from attack creates in the Judges a sense of his own dignity which is an important factor in the development of a judicious attitude."

76. It is manifest, therefore, that if any action is called for on the basis of the petition moved before us by the petitioners the same would conceivably be called for against them rather than against the respondent. This petition is accordingly liable to rejection on this short ground.

3. On the question whether a petition seeking action against a Judge for committing contempt of Court is at all maintainable, learned counsel for the petitioners, Mr. M. Anwar, referred to the language of sub‑Art. (2) of Art. 206 namely that "A Court shall have power to punish any person who" and rely ing upon the words "any person" occurring therein, submitted that even Judges of the superior Courts were included therein. Both Mr. Justice K. E. Chauhan and Mr. Justice S. H. Kadri have given weighty reasons for holding that the Law‑Maker could not have intended to include the Judges of the High Court and superior Courts within the scope of the words "any person" in the aforesaid Article and have highlighted some of the injurious consequences which would ensue by the acceptance of the inter pretation sought to be put on them by counsel for the petitioners. I may add that the question raised by the learned counsel is more academic than real. I have already pointed out that in the case where a litigant chooses to move a formal petition before the Court in which scandalous allegations are made against a Judge, the mover of such a petition would be liable to be proceeded against for contempt of Court. So far as the other possibility is concerned, namely of one Judge on being apprised of something done by another Judge which may amount to contempt considering taking action suo motu against him, such a thought would militate against the "necessity of maintaining a high degree of comity among Judges of the superior Court", which was emphasized in the judgment of the Supreme Court in the case of Jamal Shah. The necessity for maintaining an "esprit de corps" between a body of officials working in one Department Is of such great importance for the public good, that the Supreme Court of this country has repeatedly drawn attention to it. Much before Its pronouncement in Jamal Shah's case (P L D 1966 S C) the Supreme Court had observed a "It is a paramount necessity that officials of a Government should always act, within the scope of their duties, for the public Interest, and it is very greatly in the public interest that bodies of officials who are concerned in any particular aspect of governmental activity, should act as a single unit, bound to each other by a certain loyalty, always of course within the scope of public interest. Where such a feeling, which may rightly be described as esprit de corps does not exist, it is clear that the processes of government must be gravely prejudiced." (Malik Firoz Khan Noon v. State P L D 1958 S C (Pak.) 333).

77. The maintenance of the closest relations amongst the members of the Superior Judiciary and the maintenance of an "esprit de corps" between the Judges is even more necessary. By tradition, they are brothers to each other and any attempt to set one against the other would lead to disastrous results. Mr. M. Anwar con fessed before us that despite his research Into the matter, he was unable to discover a single instance in judicial history of a Judge of a superior Court taking action for contempt of Court against another Judge of the same Court. This admission amply reveals the completely unreal and the critical nature of the controversy raised before us. The mischief that can be caused by creating It at this stage can, however, be easily imagined.

4. A remedy against "misconduct" committed by a Judge Is, however, available under the provisions of Art. 211 of the Interim Constitution of 1972. In this connection, it would be of relevance to draw attention to paragraph 34 occurring in Halsbury's Laws of England, 3rd Edition, Volume 8, on the subject of Contempt of Court :

78. "34. Judges of inferior Courts.‑Judges of inferior Courts are punishable by attachment for acting unjustly, oppressively, or irregularly, in the execution of their duty, or for disobeying writs Issued by the High Court requiring them to proceed or not to proceed in matters before them, but a great part of this jurisdiction is virtually superseded by statutes giving the Lord Chancellor power to remove a Judge of an inferior Court for inability or misbehaviour."

79. In so far as a contempt of Court is a species of misconduct and action can be taken against a Judge, who is guilty of misconduct, under Art. 211 of the Constitution, and bearing in mind the mischief that can result from arraying one Judge before another Judge on the plea of alleged contempt committed by one or the other, of his own Court, I am of opinion that the action visnallsed against a Judge under Art. 211 is quite sufficient to enable restoration of proper state of affairs without recourse to the process of contempt.

5. I also concur with the order that there is absolutely no ground for issuance of a certificate of fitness under Art, 186(2) of the Interim Constitution.

80. SHAFI‑UR‑RAHMAN, J.‑- --The facts of the case and the law applicable to it are mentioned in the judgments written by my learned brothers K.E. Chauhan, Shameem Hussain Kadri and Nasim Hassan Shah, JJ. which I had the benefit of reading. My reasons for dismissing the petition in limine are as follows:

81. Article 206 of the Interim Constitution, invoked by the petitioners, recognizes the power of superior Courts of Record to punish their own contempt and of Courts subordinate to them. It makes provision that the "exercise of this power may be regulated by law and subject to law by rules made by the Court.

82. The exercise of its punitive jurisdiction is discretionary with the Court. Therefore, on a petition like this the bona fide of the petitioners, the adequacy of the alternative remedy. the substance of the cause, the stage at which and the manner it is brought before the Court are matters to be taken into consideration. Above all, is the consideration of advancement, and only the advancement, of the purposes for which this punitive power is possessed. Applying those standards to the facts of the case I find that the petitioners do not at all satisfy the requirements.

83. I am in complete agreement with my learned brothers that this is not a fit case for a certificate.

84. S.A.H. Petition dismissed.