YOUSAF ALI KHAN Versus THE STATE

1. DORAB PATEL, J. -The appellant is a Barrister-at-Law and an Advocate of the Lahore High Court. He was convicted by a learned Single Judge of the Lahore High Court for contempt of Court and sentenced to 7 days' simple imprisonment. He has, therefore, come in appeal to this Court against his conviction and sentence.

2. In February 1971 the appellant had filed a writ petition in the Lahore High Court (being Writ Petition No. 142 of 1971) against the Senior Puisne Judge of the Lahore High Court and other respondents in which he had alleged that the Senior Puisne Judge of the Lahore High Court had fraudulently purchased some evacuee property. This writ petition was dismissed on 9-3-1971 by a hull Beach of the Lahore High Court and because of the public interest in the petition, the proceedings in the case were commented upon by several newspapers including two dailies, the Musawat and the Sun. The comment in the Musawat was contained in its editorial by the Editor one Ms. Hanif Ramey and, according to the appellant, this editorial amounted to contempt of the Court because it was prejudicial to the petition for leave which he had filed in this Court against the dismissal of his writ petition Therefore, he filed an application for contempt of Court on 15-3-1971 against the Musawat and its Editor, and he expressly alleged in this application that the Editor and the Senior Puisne Judge of the Lahore High Court were very close friends. Meanwhile a learned Single Judge of the Lahore High Court had suo motu issued a notice for contempt against the Sun for that newspaper's comments on the proceedings in Writ Petition No. 142 of 1971. Finally, this writ petition filed by the appellant led to a third contempt notice. Several senior counsel of the Lahore High Court Fled a contempt application against the appellant for the allegations made by him in his writ petition against the Senior Puisne Judge of the Lahore High Court and they prayed that this contempt application be placed before a Full Bench of the High Court. The appellant had filed a similar prayer in the contempt application fired by him against the Musawat and its Editor, bat the Chief Justice of the Lahore High Court dismissed both these applications and directed that the contempt applications be placed before the learned Single Judge who had issued the suo motu notice for contempt to the Sun. Accordingly, both these applications were placed before the learned Single Judge on 17-3-1971 and the case against the Sun was also placed before the learned Single Judge on that day. The learned Single Judge referred the contempt notice issued by him against the Sun to a Full Bench of the High Court and he has stated in the judgment under appeal that he had intended to pass the same order in the contempt application filed by the appellant as well as in the contempt application filed against the appellant. However, according to paragraph 3 of the judgment under appeal "when the case was called. Mr. Yusuf Ali Khan (the appellant) got up and orally submitted that he sought transfer of his case to the Full Bench. When asked whether there was any such application on the record, he replied that the same had been presented by him before my Lord the Chief Justice. The next question put to him was as to why did he seek the transfer of his case from this Court to which he replied 'because of your relations with Sardar Iqbal"

3. The learned Single Judge thereupon ? directed that contempt proceedings should be taken against the appellant for this reply and the next day, the Lahore High Court issued the usual contempt notice against the appellant, the appellant stated in his reply to the show-cause notice that be had only replied to the question put by his Lordship and that he had not intended any disrespect to the Court. But perhaps because the appellant Vas an Advocate, he filed several applications, one of which was filed even before his reply to the show-cause notice. The prayer in this application was that the show-cause notice against him raised two important questions of law one of which (which alone is relevant to this appeal) was "whether by bringing to the notice of a learned Judge that he is personally interested in one or the other of the parties to a litigation pending before him would amount to an actionable contempt?" Therefore, the prayer in the application was that in view of the importance of the questions raised, a larger Bench should be constituted to decide :he questions of the appellant contempt. This application was dismissed on 30-4-1971. Then, on 15-5-1971: the appellant filed an application that the sun mote notice issued against him be discharged and he submitted an unconditional apology in this application. This application was also dismissed in due course. Finally, it is sufficient to refer here to one more application filed by the appellant. This was for the examination of Mr. Anwar. Barrister-at-Law, and the appellant wanted to examine Mr. Anwar in order to prove that be had delayed submitting an unconditional apology on account of the advice given to him by Mr. Anwar as his Advocate. This application was also dismissed by the learned Single Judge, who held by his judgment dated 27-9-1971 that the appellant had committed contempt, accordingly, he sentenced the appellant to 7 days' simple imprisonment.

4. The learned Single Judge observed in his judgment that he was a very great friend of the Senior Puisne Judge of the Lahore High Court, that this friendship "was an open secret and as such any person litigating against my learned brother or concerned in a matter with which his Lordship may be remotely connected would not perhaps be wholly unjustified in feeling the way Mr. Yosuf Ali Khan did". The learned Judge then proceeded to examine the question whether a plea, which was true, could amount to contempt, and be gave several reasons for answering this question in the affirmative. In the firs; place, the learned Single Judge thought that the conclusion reached by him was supported by the law of contempt as developed in England. Reliance in this connection was placed not on case. law but on the fact that repeated attempts by Parliament to control the law of contempt as developed by the Judges bad failed. The learned Single Judge also held that his conclusion was supported by the case-law of the Lahore High Court and by this Court's judgment in Sir Edward Snelson v. Judges of the High Court of West Pakistan, Lahore PLD 1961 SC237. However, as this judgment was pronounced during Martial Law, the appellant's contention appears to have teen that as the law of contempt was Judge-made law, it had to change with the times. The learned Single Judge held that this plea for a liberalisation of the law was supported by the minority view of Correlius, C. J. and Fazle-Akbar, J. (as they then were) in Khondkar v. The State PLD 1966SC 140 but was contrary to the judgments of S. A. Rahman, 1. and Kaikaus, J. (as they then were), and as he preferred the view of S. A. Rehman, J. and Kaikaus, .I. he convicted the appellant.

5. Turning now to what precisely happened in the Court on 17th March 1971,1 according to tie show-case motive issued to the appellant, he ha-1 committed gross contempt by expression , in the course of his arguments, "lack of confidence in the fairness of this Court", and in this constitution , as I pointed that, the leaned Single Judge has stated that when ha asked the appellant why he sought the transfer of his case, the appellant's reply was "on account of my relations with (the Senior Puisne Judge) I :night not be l embarrassed to deal with this matter". The learned Single Judge teak exception to the words "I night not be embarrassed to deal with this matter", because he was of the view that these words expressed lack of confidence in his judicial integrity and fairness. Whilst this view is based on the judgments of S. A. Rehman and Kaikaus, JJ. in Khondkar's case, for the reasons which I will presently give, I regret my inability to agree with those judgments, therefore, I would emphasis that a statement can amount to contempt only if it undermines or tends to undermine public confidence in the Courts, and the words used by the appellant have to be judged by this test. Now; according to the learned Single Judge, as he was a very great friend of the Senior Puisne Judge, he had made up his mind to refer the case to a larger Bench. That was the correct approach. We never hear sensitive matters affecting our very close personal friends, because we A would be embarrassed to hear them. Therefore, with the utmost respect, T do not see how the appellant's conduct could scandalise the Court, unless there was something insulting or offensive in the tone or manner of the address to the Court. But the show-cause notice to the appellant, which is in some detail, does not state that the appellant had addressed the Court in a disrespectful manner, much less in an insulting of offensive manner. Similarly, the detailed order passed by the learned Single Judge immediately after the incident does not state that the manner in which the appellant had asked for the transfer of the cast' was disrespectful or improper in any way. In these circumstances, the question before us is whether the appellant's word were by themselves sufficient to scandalise the Court. And irrespective o the appellant's intentions, they could scandalize the Court only if they tended to defame, ridicule or abuse the Judge. Now a statement that a Judge, would be embarrassed to bear a case in a situation in which all Judges would be so embarrassed would perhaps imply that the Judge was not free o all human frailties, but except on the assumption that Judges are free from the frailties "which all flesh is heir to" such a statement cannot amount to contempt, therefore, with the utmost respect, I cannot agree with the view of the learned Single Judge.

6. However, if I am wrong, as 1 pointed out, the learned Single Judge based his conclusion on the judgments of S. A. Rehman and Ka:kaus, JJ. in Khondkar's case. Kaikaus, J. observed in the penultimate paragraph of his ,judgment that the Judges of the High Court shoals not hear a case "after it had been brought to their notice that there were circumstances making it undesirable that the case should be heard by theta. What has been happening in the past is that whenever facts were brought to the notice of a Judge which contained the slightest objection to his hearing a case he al ways declined to do so". S. A, Rehman, J. expressly concurred with this view, which I have no doubt is the settled view of this Court. Now if a Judge is under an obligation, under certain circumstances, not to hear a case, it means that a litigant has a corresponding right for the transfer of his case, `Therefore, on the law declared by this Court. which was binding on the High Court, the appellant was entitled to request for the transfer of his case, and I And it difficult to accept the conclusion that a litigant commits contempt of the High Court by informing the High Court of the rights to which he is entitled under the law declared by a higher Court, the more so, as the appellant might have been in contempt if he had refused to answer the question. An this means that one of the propositions laid down in the judgment i that a litigant commits contempt by giving a truthful reply to a question b the Court which he was bound to answer. With the utmost respect, I have to observe that this proposition is contrary to principles of justice and equity and it would or unfortunate if Judge-made law has reached this pass, but 1 do not think it has.

7. I am aware of the anxiety felt by the learned Single. Judge for upholding the dignity of the Courts. I share that anxiety, and I agree with the learned Single Judge that however painful it may be, we must punish those who try to scandalize the Courts. But I venture to think that if ' respect for the Courts rests only on the law of contempt, then it is resting on foundation of sand. In the long run, if public confidence in the Courts is to b maintainers, it must rest on surer foundations than the sanctions available to us under the law of contempt, and, in tee ultimate analysis, public opinion is the only sure foundation both for respect for the law and fox maintaining public confidence in the Courts. Therefore, in so far as we have been entrusted with the task of laying down the law of contempt, an as we are also the Judges of our own cause where we exercised this jurisdiction we should not lay down a principle which is shocking to the public confidence because this would nut be a proper exercise of our discretion an because this would undermine public confidence in the administration o justice by alienating public opinion. And, in my humble opinion, the. proposition that a litigant commits contempt by giving a truthful answer an enquiry by the Court is a proposition so unconscionable that it will, in the long run erode public confidence in the administration of justice.

8. The learned Single Judge however relied on the law of contempt in England and stressed the facts that Parliament in England had repeatedly rejected attempts to modify the law of contempt but this circumstance can be relevant only on the assumption that a plea of bias in a superior Court by itself amounted to contempt. Tae learned Single Judge has not referred to any judgment in which such a view was taken by the English Courts. But in any case as our law of contempt is based on the English Law, a brief reference to it would be appropriate. In William Dimes v. The Proprietors of the Grand Junction Canal (1852) 10 E R 758, the appellant challenged a judgment which the respondent had obtained from a Lord Chancellor. The respondent was a Joint Stock Company and :as the Lori) Chancellor. who had given the, decision in the respondent's favour, held a very substantial interest in the shares of the respondent, the appellant challenged the validity of this judgment on the ground that a Judge could not hear the case of a party its whom he was interested. Thus, a plea of bias vas raised against the highest Tribunal in the Land, but Lord Brougham, the Lord Chancellor, who heard the appeal, upheld the appellant's right to challenge a judgment on the ground of bias. As rightly explained by Cornelius. C. J. in Khondkar's case, the judgment of Lord Brougham, L. C. is inconsistent with the proposition that a plea of bias cannot be advanced in the face of the superior Courts. But from the statement of the facts of the case, it is possible that a different view had prevailed earlier in England. The question before us however is of the Common Law today and not as it was more than 150 years ago, because laws must change to meet the changing needs of society and criticism which might have scandalized English Judges two hundred years ago does not scandalize their successors of today because they believe that "the blaze of glory round the Courts" (to use the somewhat rhetorical expression of Wilmot, J. in R. v. Almon (1765) 97 E R 94 will increase, not diminish, if they practise the freedom of which they preach, and it would be instructive to refer here to pronouncements by the English Courts after the leading case of Dimes v. Grand Junction Canal.

9. We have not been referred to any English case on the right of counsel or of a litigant to address the Court, but I find that the observations of the Privy Council in Parashuram Detaram Shamdasani v. King-Emperor 1945 A C 264 ? throw some light on the manner in which the view of the English Courts has been changing in the last 100 years or so. In setting aside a conviction for contempt by the Bombay High Court, Lord Goddard, who pronounced the judgment of the Judicial Committee, stated :

10. "Their Lordships would once again emphasize what has often been said before, that this summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a Court must of necessity possess ; its usefulness depends on the wisdom and restraint with which it is exercised, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended."

11. These observations about the restraint exercised by English Judges in enforcing their contempt jurisdiction may explain why Parliament left the law to the discretion of the Judges. Legislation was perhaps dropped because the Judges were themselves adapting the law to the problems of a new age. Further, not only was petty contempt affected by this kind of change, but the attitude of the Courts towards what Lord Goddard described as serious caves was also changing, and I would illustrate this by reference to three leading cases over a period of the last 100 years. These canes are not on all fours with the instant case but the alleged contempt was committed in all these cases through the medium of the press or the, public platform. And as criticism of the Courts which is publicised in this manner tends to scandalize the Court much more than a submission in Court, these judgments throw light on the changing view of the Courts in England, and also on the meaning and nature of contempt.

12. In Skipworth's case (1873-4) Q B 9 two members of Parliament had been convicted for contempt by the Queen's Bench and Mr. Skipworth, a Barrister, condemned this conviction in a public speech as a great infringement of the rights and liberties of the people. The main target of his attack war the Lord Chief Justice, who, unlike the instant case, was criticised in extremely offensive and insulting language. Mr. Skipworth also challenged the impartiality of the Judges and stated that they were not fit to try the case because they were prejudiced and had pre-judged it. In R. v. Gray (1900) 2 Q B 36 ? a journalist had criticised the conduct of Mr. Justice Darling in insulting and offensive language and had not even spared the physical appearance of Darling, J., who was described as "a microscom of decoit and empty headdness". Finally, in R. v. Metropolitan Police Commissioner (1968) 2 A E R 319 Mr. Quintin Hogg, P. C., Q. C, M. P., had published an article criticising the judgments of the Court of Appeal as erroneous and foolish and had suggested that they were generally overruled, and this article was published not in a Law Journal but in a popular weekly, world-famous for its ,jokes and cartoons. Notice for contempt was issued in all the three cases and In Skipworth's case, it is significant that the Lord Chief Justice, who was the main target of the contemners' attack on the Judges, did not hear the case, and after some delay an apology was submitted. Similarly in Grap's case, but Mr. Hogg, who was a Barrister, would not apologise. That contempt had been committed in the first two cases was obvious and in the third case, on the view taken in Snelson's case, the contemner was clearly in gross contempt, the more so, as he bad refused to apologise. In Skipworth's case, which was decided more than a hundred years ago, the contemner was sentenced to three months' imprisonment and a fine. In Gray's case, which was decided thirty years later, the contemner was convicted and sentenced to a fine of ?109 only, whilst in the third case, the Court discharged the notice of contempt. As Mr. Quintin Hogg's attack in his article was mainly on the judgments of Lord Denning, I would quote -here a passage from Lord Denning's judgment. Lord Denning stated

13. "This is the first case, so far as I know, where this Court has be-n called on to consider an allegation of contempt against itself. It is a Jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise ; more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a Court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication."

14. This judgment is a mile-stone in the development of the law of contempt. instead of limiting the exercise of the summary power of contempt to serious cases, it re-defines the concept of contempt, sweeping away thereby the case-law which bad become obsolete with changing times, and a question which arises for consideration is whether we should follow the view taken by one of the great Judges of our generation. As the development of the law must have reference to the conditions of society, in my humble opinion, we cannot, in our conditions, follow lord Denning's conclusion "that we will never use this (contempt jurisdiction) as a means to uphold our own dignity" But, subject to this qualification, I would observe that the test laid down by Lord Denning for determining what is contempt is obviously relevant in a country with a Constitution which enjoins the right of -free speech.

15. However, I have referred to these judgments because of the reliance placed by the learned Single Judge on the development of the law in England. With respect, the Inference drawn by the learned Single Judge from that develop-1 went is not correct and, on the other hand, the English case law supports the appellant's submissions.

16. I now turn to Lahore cases. The learned Assistant Advocate-General referred us to a Full Bench judgment of the Lahore High Court reported as Sham Lal?s case A I R 1932 Lah. 502 and it is necessary to examine this judgment in some detail, because it marks a departure from the view taken by the English Courts and by the other High Courts of the Sub-continent, and has bad an unfortunate effect on our Jurisprudence.

17. Mr. Sham Lal, an Advocate was appearing in a criminal revision before a Full Bench of the Lahore High Court. As he had been instructed by his client to withdraw the revision, when the case was called, he stated that he wished to withdraw the revision on his cheat's instructions but as the Chief Justice asked him whether he would argue the case, he repeated his statement that he had been instructed to withdraw the revision. The Chief Justice then asked Mr. Sham Lal's junior whether he would argue the case and Mr. Sham Lal said that he had been instructed by his client not to argue the cafe "before the Bench as at present constituted". The Chief Justice held that this statement vas a deliberate insult to the Court (see A I R 1932 Lah. 485) and the Court issued a notice for contempt. Mr. Sham Lal reiterated his respect for the Court in his reply to this notice and explained how he had been compelled to disclose his client's instructions. He also said that he had intended to apply to the Chief Justice for the transfer of the case to another Bench. The Court held that Mr. Sham Lal had committed contempt and recorded its grave disapproval of his conduct.

18. With respect, I venture to thing that it would have been better if the learned Judges had been referred to case-law because the notice Issued by them raised questions which were far too important to be disposed of by ipse dixits. And even as to the facts, it is only by reading Mr. Sham Lal's reply with his earlier statement to the Court that it becomes clear that he withdrew the case with the intention of re-filing it, therefore, the Court took exception to the withdrawal of the case and the Chief Justice, who pronounced the judgment of the Court, observed : "No litigant is entitled to have any say in the selection of the Judges who are to constitute any Bench". Now, whilst I respectfully agree with this observation, the Chief Justice has not explained how the request for the transfer of the case could be equated with an attempt to select the Judges who were to hear that case. And although Mr. Shane Lal stated that he would apply for the transfer of the case, the learned Judges did not even attempt to ascertain the grounds on which learned counsel intended to press his prayer. How then did they reach the conclusion that they had been insulted ? As they have not explained how they reached the conclusion, I would point out that the request for the transfer of the revision could only have been pressed on the ground of bins on the part of one or more of the Judges who was to hear the revision, and as the learned Judges treated the mere request for a transfer as contempt, the judgment proceeds on the assumption that a plea of bias against a Judge of superior Courts automatically amounts to contempt. With respect, this was the very question on which the case turned, and as it raised questions of law of far-reaching importance, I can only express my very great regret that the learned Judges decided it without giving any reasons whatsoever for the sweeping conclusion reached by them.

19. I am also disturbed by another aspect of the case. Mr. Sham Lal's client was free to apply for the withdrawal of his revision and even if the law permitted the filing of afresh revision Mr. Sham Lal did not commit any impropriety whatsoever in merely pressing for the withdrawal of the revision.

20. I deliberately used the word 'merely' because Mr. Sham Lal would have come within the mischief of the law if he had attempted to press his prayer in an unseemly or improper manner, but it is not so stated in the judgment. On the other hand, in view of his instructions, it would not have been proper for him to argue the revision without first withdrawing from the case or without obtaining his client's permission to argue the case. But as that was not possible because his client was in jail, it was unfortunate that the Chief Justice tried to press counsel to argue the case, and when he questioned Mr. Sham Lars junior ? it became Mr. Sham Lars duty to take upon himself the onus of satisfying the Court's curiosity. He resolved this dilemma by disclosing his instructions. But as the dilemma had been created by the Court, the further question which arose for determination was whether a Court could place counsel in a position in which he was compelled to disclose his instructions and then convict him for disclosing those instructions. This question too appears to have escaped the attention of the learned Judges, but their judgment was based on the assumption that this question could only be answered in the affirmative. I cannot accept this assumption and I observed earlier that such a view would be extremely unconscionable. I may also point out here that except for the minority view is Khondkar's case the learned Assistant Advocate-General despite his industry vas not able to refer us to any judgment of any Court which could support the harsh view taken in Sham Lal's case and, in my humble opinion, this judgment 1s not good law.

21. However, the learned Single Judge relied on another Full Bench judgment of the Lahore High Court in In re : Laid Harkishen Lal A I R 1937 Lah. 497. As the contempt in this case was the violation of the orders of the Court the judgment of Young, C. J. is distinguishable on the facts, and I would refrain from making ? any comments on it, except to observe that wilful disobedience of the orders of a Court is as obnoxious today as it was 200 years ago. Another judgment of Young, C. J. to which we were referred, is the Full Bench case of In re : R. L. Gauba, Banister-at-law, Lahore A I R 1942 Lah. 105 which we were told was an off-shoot of Lala Harkishen Lal's case. This case is more on the point, because the contemner had published a book in which he had used offensive language against the Chief Justice and made false allegations against him because he was aggrieved by the judgments of the Chief Justice against his father. Ha had, therefore. submitted that the contempt notice should not be heard by the Chief Justice. but the Chief Justice held that there was nothing in the summary power of contempt to preclude him from deciding a contempt against himself. The view of the Chief Justice was supported by authority, but in a jurisdiction in which we are the Judges of our own cause, is it enough that we have the power to hear a case? As the nature of the contempt in this case was similar to that in Skipworth's case I cannot help pointing out that the Lord chief Justice of England, who had been defamed by Skipworth, had declined to hear the contempt notice issued to Skipworth. And further whilst I have no doubt that the appellant Gauba was guilty of contempt, the sentence passed against him was six months. In a somewhat similar situation, 70 years earlier, Skipworth had been sentenced to only three months' imprisonment. Therefore, to say the least, the sentence passed by the Lahore High Court in Gauba's case did not err on the side of generosity and as the question of the sentence passed against the appellant is in issue in this appeal, I would now turn to two judgments of the High Court at Karachi which have some relevance to this question.

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23. In Crown v. Sayed A. Rafique and 3 others P L D 1950 Sind 74, the Karachi Bar Association had passed a resolution criticising the Chief Judge of the Sind Chief Court. According to this resolution, the Chief Judge had given "undeserved insults" to leading members of the Bar and had been persistently contemptuous towards the Advocates, especially to those members of the Bar who were refugees and had thereby prevented them from arguing properly the cases of their clients. The Chief Judge was also given a warning to behave properly lest the Association be compelled to take further steps against it. The language of the resolution was offensive and as the resolution was published in the leading newspapers of Karachi, it received very wide publicity the only object of which could have been to scandalize the Court. The learned Judges of the Sind Chief Court held that the resolution and its publication amounted to contempt and of that there could not be any doubt, yet they accepted the apologies, submitted by the contemners. Perhaps on account of the leniency thus shown, the next year another Advocate one Mr. Israr Hussain, filed a transfer application in which he stressed the fact that he was a refugee and submitted that he had been harassed by the Chief Judge on this ground. The allegations in this transfer application were couched in extremely insulting language and moat of them were found to be false. In these circumstances, the Sind Chief Court convicted Mr. Israr Hussain for contempt and sentenced him to one month's imprisonment (P L D 1952 Sind 1). The contemner challenged his conviction in an appeal to the Federal Court which was dismissed and I will presently examine that judgment, but I would only observe here that although the facts in this case were similar to those in Gauba's case, the sentence imposed on the contemner was only one month. Prima facie, therefore, the view taken in Gauba's case would appear to be harsh, but in view of the importance of the question I would very briefly refer to the view taken by the High Courts before 1947.

24. In re : Tushar Band Ghosh and another A I R 1935 Cal. 419 the Amrita Bazar Patrika, a newspaper with a very largo circulation in the Province of Bengal, had published an article criticising the conduct of the Chief Justice and Judges of the Calcutta High Court. Thus, for example, it stated that the author of the article regretted "that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive, with the result that the judiciary is robbed of its independence". The case was hear by a Full Bench of the High Court which included Derbyshire, C. J., Mukerji, Costello, Lort-Williams and Jack, JJ., and the majority view was that the article amounted to contempt. I respectfully agree with the conclusion. I have no doubt that the article was of a scandalous nature, the more so, in view of the political turmoil of the thirties, but the contemner was sentenced to only one month's simple imprisonment.

25. In M. G. Qadir v. Kesri Narain Jaitly and others A I R 1945 All. 67, the contemner had filed an application in which he had attributed malice and partiality to the Chief Justice of the Allahabad High Court. The language of the application was extremely offensive and of its intention to scandalize the Court there could not be any doubt. The contemner, who was an Advocate, was sentenced to two months' simple imprisonment, and here I may refer to a somewhat similar case of the Chief Court of Oudb. In Muhammad Wasim's case A I R 1933 Oudh 118, the contemner admitted having stated in a public meeting that the man in the street had lost confidence in the administration of justice in the province. Although he was as Advocate, he submitted a belated. apology, yet a Division Bench of the Chief Court which consisted of Wasir Hasan, C. J. and Dass; J. discharged the notice and accepted the contemner's apology as sufficient.

26. I now turn to two Bombay cases reported in Emperor v. Marmaduke Pickthall A I R 1923 Bom. 8 and in Emperor v. Marmaduke Pickthall A I R 1923 Bom. 242 and it is of interest to note that the Quaid-e-Azam was an Advocate in the first of these two cases. The facts of the first case were that more than a hundred persons had been tried for offences in connection with the Khilafat Agitation by a Sessions Court in the Bombay Presidency. More than sixty of the accused were convicted whilst the rest were acquitted. The persons who were convicted. filed appeals in the Bombay High Court which were heard by Marten and Crump, JJ. Most of the appeals were dismissed and the judgment which was apparently a very lengthy judgment was the subject of an article in the Bombay Chronicle, a newspaper with a wide circulation which had always supported the independence movement in the Sub-continent. According to this article, the Judges of the Bombay High Court had dismissed the appeals in order "to punish persons for their political views and activities rather than for the crimes committed by then . . . . ." It was also suggested that the Judges had been influenced by extraneous considerations and bearing in mind the nature of the case this was an extremely offensive innuendo, yet the contemner was sentenced to a fine. Emboldened by this leniency he again criticised the Bombay High Court for the judgment pronounced against him, therefore, a fresh notice was issued and this case is reported as A I R 1923 Bom. 242. Macleod C. J. and Crump, J. rightly observed that the nominal fine imposed by them had been found to be useless and that a deterrent punishment was required, yet they imposed a fine of Rs. 5,600 only and costs. I used the word `only' because a fine on a newspaper for a contempt -of a political nature is only a grist to the mill.

27. I do not wish to burden the record with more case-law and I am aware that each of these cases turned on its own facts, but from the broad principles laid down in these cases it is clear that the view of the Sind Chief Court was in consonance with the view of the High Courts of the Sub. continent before 1947. Further this view did not lead to a spate of contempts and from such experience as I have of the High Court at Karachi,, contempts for the last two decades and more have been few and far between.

28. However, reverting to the judgment under appeal, the learned Single Judge also relied on The Stare v. Abdul Latif P L D 1961 Lah. 51 and on this Court's judgment in Edward Snelson's case. As to the Lahore case, there was a difference of opinion between the learned Judges and the majority view was that a letter written to a Judge after he had decided a case could amount to contempt, I would respectfully agree with this conclusion but as this judgment is distinguishable on the facts, I would refrain from making any observations on the punishment imposed on the contemner. This Court's judgment in Snelson?s case is also distinguishable, because the contemner had delivered a talk to a large number of Government servants and had circulated about two thousand copies of his speech. Further, the appellant also relied on the fact that this judgment related to the Martial Law period when the right of free speech had been suspended. There is force in this submission also and the judgment is not relevant to the instant case.

29. Finally, the learned Single Judge relied on the judgments of Rehman and Kaikaus, JJ. in Khondker's case, but as their Lordships had in turn relied on the judgment of Munir, C. J. in Israr Hussain v. The Crown PLD 1954FC313, I would first examine this case. This was the case to which I referred earlier in which the contemner had filed a suit in the Sind Chief Court and then filed a transfer application for the transfer of his suit on account of the alleged hostility of the Chief Judge of the Court. As the appellant was convicted and sentenced to one month's simple imprisonment, he filed an appeal in the Federal Court which was dismissed and in dismissing it Munir, C. J. observed with reference to the affidavit in support of the appellant's transfer application ;

30. "A perusal of the affidavit left no doubt in the minds of the learned Judges of the Chief Court, and I share their conviction fully, that this was one of the worst contempts of a superior Court ever committed by a party. Not only is the learned Judge's conduct ridiculed in this affidavit in an extremely vulgar manner, but the whole of that document amounts to a scurrilous personal abuse of him as a Judge."

31. I agree with these observations and I will not refer to the scandalous allegations in this affidavit except to point out that most of them were proved to be false, therefore, it was not necessary for the Court to decide the wider question whether a party could plead bias in the face of the Court, if the plea was true and was pressed and advanced in a respectful manner. But there is a great different between advancing a plea of bias in a respectful manner without any publicity and in advancing such a plea in a manner which tends to ridicule a Judge's conduct and thereby scandalize the Court. With this observation, I would examine the ratio of this case.

32. In rejecting the appellant's submission, Munir, C. J. observed at page 325 ;

33. "But neither before the Chief Court nor before us was cited any authority or opinion that where proceedings in contempt are initiated against a person who has scandalised a Judge of a superior Court, truth can be successfully set up as s 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 care the honour of the Judges would be at the mercy of disgruntled litigants who might with impugnity 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."

34. Do those observations refer to all pleas of bias even if the plea be true and advanced with the utmost respect for the Court? Or do they refer to an allegation of bias which scandalizes the Court because it is false or because the manner in which it is advanced is such that it scandalizes the Court by defaming or ridiculing a Judge? Whatever be the true purport of the observations, in order to appreciate the true ratio of the case it must be borne in mind that the appellant had made false allegations, used offensive language, and his allegations had been published in the newspapers. In my opinion, each of these circumstances by itself had a tendency to scandalize the Court. But reverting to his Lordship's observations, Munir. C. J. further observed

35. "If a person scandalizes a Judge of a superior Court in such a manner as to bring him within the definition of contempt, it cannot be good defence to the proceedings for contempt that his intention was not to scandalize, because the essential question in such cases is the tendency of the writing to lower the authority of the Judge by bringing trim into disgrace and not the intention underlying the writing. No one can be allowed to defame, ridicule or abuse a Judge in his public capacity even with the best of motives because if that sort of thing were once held to be permissible the whole judicial system would readily be brought into utter contempt"

36. 3 respectfully agree with these observations, but they refer to criticism of the Court which scandalizes the Court, and I demur to the view that criticism of the Courts would necessarily amount to scandalizing the Courts.

37. Munir, C. J. then examined the question of a plea of bias generally and observed :

38. "But is the appellant right in the assumption that where a judicial officer is scandalised in an application for transfer which lies. contempt becomes a legal impossibility? In my opinion, there is nothing in the law to support that proposition or to preclude the High Court from taking action for contempt in appropriate cases. But since the High Court takes action only where substantial and not merely technical contempt is committed, such cases can be explained and distinguished on the ground that the motive underlying the allegation being to obtain legal redress no question of taking action in contempt would arise if the applicant for transfer had a genuine grievance which he pat in a temperate and properly worded document."

39. It is clear from these observations that according to Munir, C. J. a plea of bias was by itself sufficient to amount to contempt. But these observations are obiter. Secondly. they lay down two propositions. The first is that a plea of bias is per se contempt. The second is that if a plea of bias is raised in order "to obtain legal redress .... . . . . in a temperate and properly worded document". It should be treated as technical contempt on which the Court should not take any action I would recall here that this was also Lord Goddard's view in Shamdasant's case, and I would pause to point out here that this view supports to the hilt the appellant's plea that his apology should have been accepted.

40. I now turn to Khondkar's case. The facts of this unfortunate case were that one Mr. Noman had filed a writ petition in the East Pakistan High Court against the Dacca Improvement Trust, bemuse he had been dismissed from employment by the Dacca Improvement Trust. Mr. Noman had also sought interim relief pending the hearing of the writ petition, but he learnt before this application could be finally decided that his writ petition was pending before two Judges of the High Court, who had been allotted plots of land by the Dacca Improvement Trust, in a manner which was vary irregular. Mr. Noman, therefore. filed a contempt application against the Chairman and the Secretary of the Dacca Improvement Trait on the ground that these persons were in contempt of the High Court as they lead allotted plots for ulterior motives to the Judges who weir to hear his writ petition and thereby brought the highest judiciary of the Province into disrespect. Mr. Noman also filed a transfer application for the transfer of his writ petition to another Bench on the ground that the learned Judges of the Bench before whom his writ petition was pending had been accommodated by the respondent in a most improper manner. In view of the allegations In these applications the Court issued contempt notices to Mr. Noman and to his Advocates, and as they were convicted for contempt and fined, they filed appeals against their conviction in this Court. This Court unanimously upheld the convictions for contempt, but observed that a substantial reduction of the fines imposed was required. Accordingly, the fines were reduced to the sum of Rs. 200 only for each contempt. Now, although there was unanimity about the order passed, three separate judgments were pronounced, and, according to the learned Single Judge, the view of Cornelius, J. (with which Fazle-Akbar, J. agreed) was "progressive and perhaps the most liberal view taken so far" by this Court. The learned Single Judge further observed that this view marked a shift in the law, an observation with which I agree. The learned Single Judge then rightly pointed out that Hamoodur Rehman, J. (as he then was) had not agreed with the view of Cornelius, C. J., whilst S. A. Rehman arid Kaikaus, JJ. had taken a third view, which was based on the conservative or traditional approach. As this third view was obviously the minority view, the appellant's case is that the learned Single Judge erred in law in convicting him on the basis of this Court's minority view.

41. In view of this submission and the importance of the questions raised in this appeal, it is necessary to examine the judgments pronounced in some detail, and as to the pleas raised by the appellant, Cornelius, C. J. who wrote the leading judgment in the case, observed at page 152 :

42. "Mr. Noman repeated that he had a bona fide apprehension that he would not get 'fair justice at the hands of the Division Bench and raised the contention that a person who expressed such an apprehension could not be regarded as committing contempt of Court. The apprehension was based on 'admitted facts and acts which are apt to produce such apprehension in the mind of a man'. Mr. Khondgar denied that the contempt petition and the transfer petition were colourably used for the purpose of scandalising the Division Bench, or of ascribing motives to them, or, by attacking their integrity and impartiality, to bring the Court and its authority into contempt, disrepute and disrespect. He asserted that Mr. Noman's apprehension was genuine, and further that he genuinely believed that the acts of the opposite-party (i.e., the D. I. T. and its officers) were calculated to bring the highest judiciary into disrepute and to shake public confidence In the processes of justice"

43. Cornelius, C. J. then examined the case-law, including the English case-law, and held that a litigant and its counsel were entitled, in certain circumstances, to advance the plea of bias even in the face of a superior Court. However, as such a plea must necessarily amount to contempt if it is, false, Cornelius, C. J. carefully examined (I say so with respect) the allegations of the appellants against the learned Judges of the Dacca High Court and observed with reference to the conduct of the respondent (namely the Dacca Improvement Trust) in the writ petition filed- by the appellant Noman : "A detached observer could not conclude otherwise than that to stand in good favour with the Presiding Judge (of the High Court) carried something of an advantage . . . . To say that the allotment was no act of grace or favour only gives a partial impression of the negotiation as a whole." And because the respondent had thus tried to accommodate the learned Judges of the High Court, the plea of the appellants was that justice would not be done or at least would not be seen to be done unless their cue was transferred. However, as most of the allegations made by the appellant Noman against the Judges of the High Court were found to b3 false, the convictions of the appellants could not but be sustained, bat what is significant is that the fines were substantially reduced, despite this finding that most of the allegations by the appellants were false.

44. As to the ratio of the judgment of Cornelius, C. J., I cannot do better than to quote the following passage from his Lordship's judgment at page 169 :

45. "As a result of this somewhat lengthy examination of the facts and the law in this case, certain propositions may be laid down, which it will be of advantage to the, furtherance of justice to formulate in precise terms. They may be stated as follows;

(1) It is open to a litigant to raise in the face of a Court an allegation of bias in that Court, and this is true whether, it may be a superior or subordinate Court .........

(2) The plea of bias involves criticism of a superior Court in point of its capacity to do justice, confidence in which is (a) vial to the proper functioning and even to the continuous existence of the judiciary as at present constituted, and (b) essential therefore to the public interest. Consequently, such an action brings the agent within the range of the contempt jurisdiction, unless it can be totally justified on factual ground, the onus of establishing which lies exclusively on him.

(3) Mere apprehension in the mind of a litigant that he may not get justice, such as is based on inferences drawn from circumstantial indications, will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follows necessarily therefrom. On no weaker ground can any person be permitted to attack, the impartiality of a superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found in contempt."

46. I agree with the appellant that these propositions support his case to the hilt, but, with the utmost respect, I would observe that the cause of truth is not advanced by bad manners, therefore, even if a plea of bias be true it should only be advanced in a temperate and respectful manner otherwise, in my humble opinion, it would amount to contempt. And with this qualification, I would agree with the judgment of Cornelius, C. J.

47. I also venture to think that my view is in accordance with the view of Hamoodur Rahman, J. (as he then was) because his Lordship stated ;

48. "I would, therefore, like to add a further proposition to those enumerated by my Lord the Chief Justice :

49. 'When such a plea of bias is raised it should be remembered that nothing should be said or done which scandalizes the Judge or Judges, as the case may be, or imputes motives or judicial dishonesty or is calculated to undermine the confidence of the public or lower the authority of the Court or obstruct or interfere with the administration of justice. Normally it should be sufficient to state only the facts necessary to show the bias. Exceeding these limits will oppose the lay litigant as well as his counsel, who repeats these statements in Court, to punishment for contempt'. "

50. Reading the proposition formulated by his Lordship with his earlier observation that an occasion for raising a plea of bias "should not be allowed to be tutored into an occasion for defaming or scandalizing a Judge", it seems to me that Homoodur Rahman, J. agreed with the three propositions laid down by Cornelius, C. J. with the further qualification that a plea of bias, even if true, will amount to contempt, if it is not advanced in a temperate and respectful manner. But if I am wrong, with the utmost respect and humility, I cannot agree with Hamoodur Rahman, J.

51. However, as observed by the learned Single Judge. S. A. Rehman and Kaikaus, JJ. were of the view that the appellant would have been in contempt even if all the allegations of the appellant Noman against the Judges of the High Court had been true. I would pause to observe here that this view which I described as harsh was taken for the first time in Sham Lars case, and S. A. Rahman, J. who approved of this judgment observed :

52. "The reason for such protection to the superior judiciary against such allegations is understandable. It would bring the whole judicial system into disrepute and public confidence in the integrity of Courts at the judicial apes would be badly shaken if opportunity is provided to disgruntled but unscrupulous litigants to throw mud on High Court Judges in the hope that some of it will stick ? Even false allegations of bribery may lie conceivably put forward to intimidate the Judge. Once such an allegation forms the subject of an inquiry, tongues begin to wag and the damage is done, irrespective of what the eventual result may be. Truth and justification are not valid defences to a charge of contempt of a Judge of a superior Court, where the contempt consists in scandalizing the Judge or attacking his impartiality."

53. Kaikaus, J. agreed with these observations and observed that the law of contempt made "the integrity of Judges of superior Courts immune from attack". Now, I respectfully agree with the view that Courts should be protected against "disgruntled (and) unscrupulous litigants". But it is a very different thing to say that Judges must be absolutely immune from all g criticism and the necessary implication of the Draconian proposition lard down by S. A. Rehman and Kaikaus, JJ. is that Courts of justice must silence the truth in order to preserve public confidence in the administration of justice. With the utmost respect, I cannot agree with this proposition. But even if we assume that the end justifies the means, we must remember that in this day and age, the proposition that the Courts have the prerogative to silence the truth in the name of justice is likely to undermine confidence in the administration of justice, and as this is a circumstance which must be weighed against the dangers to the Courts from the conduct of unscrupulous and dishonest litigants, it is necessary to examine the extent to which the Courts will be protected against such litigants by silencing the truth.

54. The main apprehension of S. A. Rehman and Kaikaus, JJ. was that the view of Cornelius. C.J. would open the flood-gates by encouraging litigants to make allegations recklessly against Judges of the superior Courts. With respect, an allegation against a Judge is either true or it is not, and if it is not true on the view of Cornelius, C. J. it would clearly be contempt. Further, as the burden of proving the truth of an allegation of bias on the part of a Judge falls heavily on the litigant, I venture to think that the view of Cornelius, C. J. would not open a Pandora's boa. But even if I am wrong, how will a plea of bias, which is true, undermine respect for the Courts? In the instant cafe, which is a typical ease, the appellant stated that his Lordship would be embarrassed to hear the case of a very close friend. I do not see how such a statement can undermine confidence in the administration of justice. Of course, an allegation of bias, which is of a serious nature, may be derogatory to a Judge, and through the Judge, to the Court which he serves, and the question in such a case would be of the advantages, if any, of convicting for contempt a person who advances such an allegation. The only advantage which I can see is that the fear of contempt proceedings would deter people from making such allegations openly and from publishing that. This however might not stop the truth from coming out, and an insidious whispering campaign against a Judge might do far more harm to the prestige of the Court than the alternative course of permitting a litigant to ventilate his legitimate grievances by filing, if necessary, a transfer application, provided, in the words of Munir, C. J., it is "a temperate and properly worded document". Therefore, it seems to me that the advantages to the Courts of following the view of S. A. Rehman and Kaikaus, JJ. would be very limited if not illusory and it is also not a coincidence that Courts which have taken a liberal view in contempt cases have not been harassed by frivolous allegations of bias against their Judges.

55. However, after painting a gloomy picture of the catastrophic consequences of permitting litigants to advance a pies of bias which is true, both S. A. Rehman and Kaikaus, 1J. laid down exceptions to the rule that a plea of bias could never be raised in the face of a superior Court. And, according to S. A. Rehman, J., a litigant could plead bias if a Judge was disqualified "from acting by reason of such identity of interest with a party as makes him a Judge in his own cause". With the utmost respect, even the most experienced Advocates might find it difficult to decide whether an allegation of bras could come within this exception. On the other hand, the exceptions formulated by Kaikaus, J. were more precise, and, for example, according to Kaikaus, J., it would not be contempt to allege that a Judge should not hear a case if he was "a shareholder in a Company which is a party to the proceedings". With respect, there are companies and companies and whatever be the position ten or fifteen years ago, we now have companies which have paid up capitals of several crores of rupees, and if a Judge holds shares worth a few thousand rupees in a Company with a paid-up capital of several crores of rupees, his interest in the Company would be negligible, but if it is not contempt to allege bias, in such a situation how can it be contempt to allege bias when a Judge insists on hearing a case involving the livelihood or reputation of a very close friend or a very near relation. And further, if in the situations envisaged by S. A. Rehman and Kaikaus, JJ. the plea of bias cannot shake confidence in the administration of justice, why should it lead to catastrophic consequences in other cases?

56. Finally, as I pointed out earlier, even S. A. Rehman and Kaikaus, JJ. were of the view that the learned Judges of the Last Pakistan High Court should not have heard the writ petition of the appellant Noman after it had been brought to their notice that there were circumstances making it undesirable for them to hear the writ petition. Now, although what the appellants bad done, through their applications, was to draw the attention of the learned Judges to the circumstances which made a transfer of the case desirable, they took advantage of this opportunity to make false allegations against the learned Judges of the High Court, therefore, Cornelius, C. J. convicted them for contempt and as the applications contained false allegations, they could not but scandalize the Court, therefore. I venture to think that the observations of S. A. Rehman and Kaikaus, JJ. were not necessary for the decision of the case. However, whatever be the true ratio of the case, the view of S. A. Rehman and Kaikaus, JJ. was the minority view. With respect ,I regret my inability ? to agree with it, and I also think "that it is inconsistent with later pronouncements of this Court, which were not available when the appellants' case was heard.

57. Mr. Yusuf Ali Khan referred us to this Court's judgment in Fakhre Alam v. The State and another PLD1973SC525, and I would refer here to the appeal of the appellant Yusuf Lodhi only. The relevant facts were that the Chief Justice of the Peshawar High Court bad experienced difficulty in obtaining a house for himself, and as he was interested in the Chief secretary's house, ho approached the Speaker of the Provincial Assembly to take up the matter on his behalf with the Chief Minister of the Province. The appellant wrote an article in his newspaper about the efforts of the Chief Justice to obtain possession of the house occupied by the Chief Secretary in which it was stated for example that the Chief Justice had persuaded the Speaker "to browbeat the Chief Minister". Additionally, the appellant was very sacristan in his observations about the conduct of the Chief Justice. The Peshawar High Court held that the appellant's article amounted to gross contempt and imposed the maximum punishment on him although he had submitted an unconditional apology. The appellant filed an appeal in this Court and this Court set aside his conviction and sentence and "discharged the rule by accepting his apology".

58. Perhaps in view of the observations of S. A. Rehman and Kaikaus, JJ. in Khondkar's case, the appellant's learned counsel did not even attempt to argue that the appellant's article could not on a fair reading amount to contempt, and Anwarul Haq, J., who pronounced the judgment of this Court, observed that it was unnecessary to adjudicate whether the article amounted to contempt or not "for opinions may differ on this point". Nonetheless. his Lordship examined the allegations against the Chief Justice, to which the High Court had taken very strong exception; and observed that "the observations, even taken at their face value were not such as could be said to reflect against the Chief Justice". I respectfully agree with these observations, but they are a far cry from Sham Lal's case, and further it could well be said that the public would not be impressed to learn that the Chief Justice of a High Court had approached the Executive for his personal requirements, however genuine they be. Additionally, as I observed earlier, criticism of the conduct of the Judges scandalizes the Court much more when the contempt is committed through the medium of a newspaper than where any contempt is committed in the precincts of the Court. Therefore, if allegations of the type made by the appellant Lodhi were not derogatory, despite the sarcastic and derisive tone of his article, then, by parity of reasoning, a plea of bias cannot by itself amount to contempt because a plea of bias need not consist of any thing more than a statement of facts coupled with an appeal to the sense of propriety of the Judge. Therefore, I agree with the appellant's submission that this judgment is inconsistent with the view of S. A. Rehman and Kaikaus, JJ. in Khondkar's ? case, and further there have been several unreported judgments recently by this Court which are inconsistent with the undue sensitivity by Judges to criticism which began with Sham Lal?s case, but I would only refer here to this Court's judgment in M. Inayat Khan v. ill. Anwar and others PLD1976SC354 because I venture to think that it carries farther the trend which began with the judgment of Cornelius, C. J. in Khondkar's case.

59. Mr. Anwar is a very Senior Advocate of this Court and has appeared in many contempt matters before us it is of interest to note that he had also appeared for the appellant at one stage ion the High Court, and, according to the appellant, it was on Mr. Anwar's advice that he had not submitted an apology immediately to the learned Single Judge. However, reverting to the facts of the case, .Mr. Anwar had given an interview to a newspaper in March 1972 in which he had made a very scathing attack on Mr. Justice Mursir. Further although Mr. Anwar knew that be was then appearing in an appeal in this Court in which he wanted this Court so review its decision in The State v. Dosso and another P L D 1958 S C (Pak.) 533. Mr. Anwar had discussed this judgment in his interview to the press and described it as the product "of the poisonous brain of Mr. Muhammad Munir" which had led to "the trampling of democratic values". Not content with criticising the Court's judgment, he had also criticised the Judges, who had been parties to that judgment, in language which was very offensive therefore I would refrain from quoting it. Thus, the case was similar to Snelson's case, and the petitioner had filed a petition for contempt in this Court against Mr. Anwar and against the Editor and Publishers of the newspaper which had published Mr. Anwar's interview.

60. The importance of this judgment cannot be appreciated without reference to Mr. Anwar's reply to the show-cause notice. Like Sham Lal, Mr. Anwar merely expressed his great respect for the Court and relied on the right to criticis;, the judgments of the superior Courts in the public interest. He relied In support of his submission on the judgment of the Judicial Committee in Ambard v. Attorney-General for Trinidad and Tobago 1936 A C 322 In which Lord Atkins observed :

61. ".... 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 t the wrong-headed are permitted to err therein?.Justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."

62. Now Mr. Anwar's criticism of Dosso's judgment was outspoken, but instead of being respectful it was offensive. Yet he was reprimanded. The necessity for a reprimand followed from the fact that he had exceeded the right to criticise a judgment in the public interest but his plea was that he was upset by the tragic events of 1971. Apart from this feeble explanation, he also relied upon the fact that Dosso's case had been overruled. On the other hand, the Attorney General's submission was that by criticising Doeso's case, when it was sub judice, Mr. Anwar had "intended to browbeat the Judges of the Supreme Court who were to hear the appeal filed by Mr. Anwar in Asma Jilani's case". Whilst the Attorney-General's apprehensions about the effect of this article on the Court were unjustified, it would be an under-statement to say that the timing of Mr. Anwar's criticism of Dasso's case was improper. But Mr. Anwar relied on the fact that Dosso's care had been overruled. It is true that Dosso's case was overruled, but the question was whether Mr. Anwar's criticism of the case had scandalized the Court, and the fact that the case had been overruled could neither undo the harm done by the language used by bier. Anwar nor alter the fact that he had criticised the Court's judgment in offensive language. However, Mr. Anwar had based his case on a far stronger footing in claiming the right to criticise a judgment of the Superior Courts in the public interest. This is a circumstance to which I referred earlier and it is this circumstance which distinguishes the case from earlier pronouncements of this Court such as Mir Abdul Qayum v The Chief justice and Judges of the High Court of West Pakistan and anther PLD 1971 S C 230 where this plea was not even raised.

63. I am aware that the facts in the instant case are distinguishable but if such outspoken criticism of a judgment in the newspapers cannot undermine public confidence in the Courts there it cannot reasonably be argued that a request for the transfer of a case on the ground of bias would automatically undermine public confidence in the Courts as held by S. A. Rehman and Kaikaus, JJ. in Khondkar's case. I would, therefore, hold that a plea of bias in a transfer application or in a request for a transfer which is there does not amount to contempt if it is temperately worded and is pressed in a respectful manner and without any publicity. The appellant's conduct has to be judged by this test and there cannot be any doubt that he was, in the circumstances, entitled to seek the transfer of his case. In any cage, the learned Single Judge had only taken exception to tae appellant's reply to his Inquiry. But the appellant's reply was temperately worded and was not given any publicity. Additionally, being an ? Advocate he had also submitted an apology. This was proper, because an Advocate is an officer of the Court, and, being an officer of the Court, it be-hoves him to submit an ?apology to a notice for contempt, even though he may be justified (as the appellant was) in submitting that he is not in contempt. But precisely because an Advocate is an officer of the Court, provided he advances his submissions with the respect due to the Court, he should be free to make his submissions without the Sword of Damocles hanging over his hand, therefore, with the utmost respect, I cannot agree with the view of Munir, C. J. that a plea of bias should be treated as technical contempt even if it is proved to be true and is temperately worded. Accordingly, I would allow the appeal, set aside the conviction and sentence passed against the appellant and discharge the notice issued to him.

64. MUHAMMAD YAQUB ALI, C. J.-I agree.

65. Qaisar KHAN, J.-I agree.

66. S. A. H. ?????????????????????????????????????????????????????????????????????? Appeal allowed.