GRINDLAYS BANK LTD. (LLOYD BRANCH). LAHORE Versus AZAM S. SUHRAWARDY

This is an application under sections 3 and 4 of the Contempt of Court Act, 1976 for taking proceedings in contempt against Mr. Azam S. Suhrawardy, an Advocate of this Court and hereinafter referred to as the respondent.

2. The respondent was engaged by the petitioner which is a Bank, to file a civil suit. For this purpose he was paid a fee and provided with necessary funds for the purchase of court fee stamps and other miscel laneous expenses. The respondent did not file the suit whereupon at the instance of the Bank a criminal case was got registered against him with the police. The case was subsequently cancelled. On his part the respondent made an application before a civil Court under section 33, Arbitration Act for the enforcement of an arbitration agreement between himself and the Bank. This application was dismissed in default on 15th May, 1979. Four days later the respondent applied for the restoration of his applica tion. On 4 th November, 1979 the petitioner submitted its reply to the application for restoration through its counsel Mr. Yusuf Ali Khan, Advocate. In the reply, apart from dealing with other matters with which we are not concerned, it was stated

"The plaintiff (that is, the respondent) is a crook, dishonest and a liar."

By way of retaliation the respondent on 19th November, 1979 made an application (hereinafter written with capital A) before the trial Court in which it was prayed:

(i) an F. I. R. under section 504 of the Pakistan Penal Code be lodged with the police against the Bank's Manager Mr. Singha and Mr Yusuf Ali Khan;

(ii) the Bank Manager and Yusuf Ali Khan be punished for the Contempt of Court; and

(iii) report of the matter to the effect that Mr. Yusuf Ali Khan is a dangerous lunatic should also be made to the District Judge, Lahore, so that proceedings under the Lunacy Act can be initiated tea send the aforesaid lunatic to the mental asylum.

Paragraphs 4, 5, 6, 7 and. R of the Application read as follows

"4. That the respondent J. S. P. Singha is a very clever man. He has intentionally engaged Yusuf Ali Khan as his counsel who is a noto rious contemner.

Morever this Yusuf Ali Khan is a lunatic having lost his mental balance on account of the curse of his real mother against whom he had filed criminal prosecutions. It is respectfully pointed out that these prosecutions were for a very small financial benefit and to secure this benefit this Mr. Yusuf Ali Khan had gone on to say about his worthy mother that she had given birth to him to obtain sexual gratification and as such he was not grateful to her at all. This Yusuf Ali Khan had uttered scandalous remarks against his own real mother and sisters who have since disowned him and cursed him as a lunatic. It was for this obnoxious quality of Yusuf Ali Khan that he had been engaged by respondent Singha to utter filthy abuses against the plaintiff even through pleadings. As such it is Mr. Singha who is the real culprit because he has attempted to use the lunatic advocate as a means of seeking revenge against the plaintiff.

5. That in support the assertion that Mr. Yusuf Ali Khan is a habitual offender, the following cases of the superior Courts are listed below:

P L D 1975 Lah, 1534.

P L D 1.975 Lah, 1549.

P L D 1972 S C 115.

P L D 1971 S C 508.

P L D 1970 S C 350.

P L D 1969 Lah. 495.

6. That in view of the fact that the offence has been committed during Court proceedings, the interest of justice requires that this Hon'ble Court should report the commission of this cognizable offence to the police.

7. That it has been reportedly held by the superior Courts that abuse of the process of a Court is contempt of Court. Respondent Singha has used the forum of this Hon'ble Court to have the petitioner abused through a hired lunatic. He has therefore, committed contempt of this Hon'ble Court.

8. That this Mr. Yusuf Ali Khan is a dangerous lunatic. In the past he has played, with the honour and dignity of many a Hon'ble Court of Pakistan. It is in the interest of the security and the dignity of the Courts of Pakistan if proceedings under the Lunacy Act are initiated before the Hon'ble District Judge, Lahore where he is examined by a Medical Board and a Board of Psychiatrists and on declaration of the Hon'ble Lunacy Court to the effect that he is a dangerous lunatic he is sent to the mental asylum."

On 24th November 1979 the petitioner moved the present petition for taking action under the law of contempt against the respondent,

3. The respondent submitted a written statement in which he denied that the allegations made in the Application constituted contempt of Court. He alleged that the assertions made by him in the Application were true and that the petitioner ought to have sought a verdict on merits upon them in the trial Court instead of moving this Court for taking action under the law of contempt. He further alleged that the present petition had been filed in order to avoid a decision on merits on the Application. He frankly admitted that he had moved the Application because the bank manager, Mr. J. S. P. Singha hail abused hind through his "hired help" Mr. Yusuf Ali Khan, before the trial Court by calling hire a crook dishonest and a liar. He alleged that Mr. Yusuf Ali Khan was so much personally involved in the litigation against him that it was not proper for him to appear as counsel in the case before the Civil Court. He also took up the position that it was open to Mr. Yusuf Ali Khan to prosecute him through a private complaint under sections 501 and 502 of the Pakistan Penal Code and that it was not appropriate for this Court to convert itself into a Court of "defamation".

4. There can be little doubt that in the Application the respondent has made attacks of most vicious kind against Mr. Yusuf Ali Khan. So far as Mr. J. S. P. Singha is concerned the respondent has stated that he is a clever man and the `real culprit' who had engaged a lunatic advocate as a means to seek revenge by uttering filthy abuses against him. It is to be noticed that being the bank manager, Mr. Singha was a party to the litigation. If he feels embarrassed by the allegations made against him by the respondent he can, if so advised, avail of the remedies provided by the law in this regard. I am therefore not prepared to take notice of the Application in so far as it contains allegations against him. However, the case of Mr. Yusuf Ali Khan stands on a different footing he was appearing as counsel, for one of the parties to the litigation. The respondent reserved the most virulent part of the attack for him. He described Mr. Yusuf Ali Khan as a lunatic who had lost his mental balance on account of the curse of his real mother against whom he had initiated criminal prosecution for very small financial benefits. He also ascribed to Mr: Yusuf Ali Khan certain utterances of grossly base nature in reference to his mother. It is also to be noticed that the Application had no relevancy to the proceedings before the trial Court and the allega tions made therein against Mr. Yusuf Ali Khan were entirely irrelevant for the purpose of deciding the matters which were in issue before the Civil Court. It may further be mentioned that the Civil Court had no jurisdiction to entertain an application under the Lunacy Act. The respondent who was a member of the legal profession would have known this legal position. In the circumstances the only inference which I can draw is that by filing the Application his intention was to insult Mr. Yusuf Ali Khan and to intimidate him so that he should withdraw from the case. In drawing these inferences I find support from the pleas which the respondent has taken in his written statement. In this statement he leas admitted that he had tiled the Application as a result of the accusations which were made against him that he was a crook, dishonest and a liar. He had also taken up the position therein that Mr. Yusuf Ali Khan ought not to have associated himself with the case as he was personally involved in it.

5. There can be little doubt that counsel is as much entitled to the protection of the Court as any another officer of the Court so that he can perform his duties fearlessly and without obstruction. In any system of dispensation of justice, whether it be of inquisitorial or of adversary nature the importance of the role which counsel plays cannot be over-emphasized. It also cannot be disputed that no self-respecting person will assume this role if he is in the danger of bang abused or cursed or of his family history being raked up at the instance of the opposite party. In such a situation the harm that will be caused to the administration of justice may be incalcuLahle. In the English Empire Digest, Replacement Volume 16, at page 44, a case entitled French v. French has been cited wherein it was held that it would be contempt of Court to insult a suitor or his counsel while attending in the master's office. In re: Johnson ((1887) 20 Q B D 68) a solicitor was convicted for contempt on the allegations that he had abused the solicitor of the other party in the Court premises immediately after a hearing in Chambers. While supporting the conviction in the Court of appeal Bowen L. J., observed:

"The law has armed the High Court of Justice with the power and imposed on it the duty of preventing brevi manu and by summary proceedings any attempt to interfere with the administration of justice It is on that ground, and not for exaggerated notions of the dignity of the individual, that insults of the Judges are not allowed. It is on the same ground that insults to witnesses or to jurymen are not allowed. The principle is that those who have duties to discharge in a Court of justice are protected by the law and shielded on their way to the discharge of such duties, while discharging them and on their return therefrom in order that such persons may safely have resort to the Court of justice "

This principle was upheld by a Full Bench of the Lahore High Court in Muhammad Shafi v. Qadir Bakhsh (P L D 1949 Lah. 392). In this case a Magistrate had threatened and intimidated counsel who was appearing in a civil suit. The Full Bench convicted the Magistrate after holding that the intimidation of a lawyer who was presenting one of the parties constituted contempt of Court as it would seriously interfere with the administration of justice.

6. Since the matter before me was of some importance to the members of the legal profession I asked the Advocate-General who is ex officio Chairman of the Punjab Bar Council to address arguments in this case. The learned Advocate-General contended that it was a clear case of contempt of Court because the only purpose of making the Application was to insult and intimidate Mr. Yusuf Ali Khan who was appearing as counsel in the proceedings before the trial Court. He too submitted that the application had no relevancy to the proceedings before the Civil Court, and in any case the said Court was not competent to entertain an application to initiate proceedings in respect of Mr. Yusuf Ali Khan under the Lunacy Act. This, he pointed out, must have been known to the respondent who himself was a practising lawyer of some standing. In support of his submission he referred to Muhammad Shafi v. Qadir Bakhsh and A. N. M. Mahmud v. M. O. Ghand (P L D 1967 Dacca 67). The case reported as Muhammad Shafi v. Qadir Bakhsh has already been noted above. In A. N. M. Mahmud's case a Full Bench of the Dacca High Court made some observations of general nature with regard to the duty of the Court to call upon contemners to answer for the impediment which they had caused to the steady course of judicial administration.

7. During the course of the hearing before me the respondent, made a request that he should be given an opportunity to prove that the allegations which he had made against Mr. Yusuf Ali Khan in the Application were true. I thought that this prayer was most unfortunate. The truth or falsity of the allegations was not the issue before me. So long as Mr. Yusuf Ali Khan was enrolled as an Advocate he had the right to practise before the Court. The principle involved here is entirely different. Can a party to the litigation be permitted to make attack of personal nature against counsel of the opposite party when the character or antecedent of counsel is not a matter, in issue in the Court or has no bearing whatsoever on the fate of the litigation. In the circumstances the truth or falsity of the allegation was entirely irrelevant for the disposal of this petition. For this reason I turned down the request of the respondent in this regard.

8. It was contended on behalf of the respondent that he was pro voked into making the said Application by the accusations which were made against him by the petitioner in its reply before the trial Court. It was argued that if counsel were to be protected from attacks of personal nature, the suitors should also be afforded the same protection from unwarranted accusations. It is true that a suitor cannot make assertions of scandalous nature against the other party in its pleadings unless they are germane to the controversy in issue before the Court but then as a lawyer of some standing the respondent must have known that in respect of the accusations made against him he had other remedies avaiLahle to him under the law short of making an abusive application against counsel of the opposite party. I am, therefore, unable to hold that the provocation pleaded .by him furnished a sufficient justification to him for making the Application which he did in the trial Court.

9. Another contention raised on behalf of the respondent was that if the most unfavourable view was taken of his Application it would amount to an offence under section 506 of the Pakistan Penal Code. Consequently this Court was debarred from taking any action under the contempt of Courts Act by virtue of the prohibition contained in sub section (1) of section 6 of the Contempt of Courts Act. This sub-section reads as under:-

"No High Court shall take cognizance under this Act of contempt alleged to have been committed in respect of Courts subordinate to it when the said contempt is an offence punishable under the Pakistan Penal Code (Act XLV of 1860)."

In my opinion this contention is without any merit. The gravemen of the offence against the respondent is not that he has intimidated or abused Mr. Yusuf Ali Khan as a person but that he has insulted and abused counsel so as to force him to withdraw from the case. So far as Mr. Yusuf Ali Khan as a person is concerned he can take appropriate E proceedings under the relevant law but inasmuch as the Application has the effect of obstructing the due course of justice it is a matter of concern for the Court and there is no provision in the Pakistan Penal Code which can be said to deal with a situation like this.

10. The respondent also contended that the petition for contempt was not maintainable for the reasons that it had not been filed by Mr. Yusuf Ali Khan himself, that it had not been verified in the manner provided by law and that it had not been alleged that the allegations made in the Application were not true. In my opinion all those objections are frivolous. It is to be noticed that the petition has been filed by the Bank which was a party to the proceedings before the Court. Mr. Yusuf Ali Khan was its counsel. Any attempt to scare off its counsel would cause as much grievance to it as to counsel who was made the target of the attack. Therefore, the Bank was equally competent to move this petition with Mr. Yusuf Ali Khan. The petition is duly verified by an employee of the Bank. It was entirely unnecessary to aver in the affidavit that the allegations made in the Application were not true, for as already explained above the falsity or truth of the allegations was entirely irrelevant for the purpose of these proceedings. It may also be mentioned that this Court could take notice of the Application suo motu also without any ff petition from the petitioner or Mr. Yusuf Ali Khan and initiate Proceedings, in contempt against the respondent,

11. The next submission of the respondent was that the allegations which he had made in the Application were true and that truth could never be punished. He also contended that a party ought not be punished under the law of contempt if it made an assertion which was vital for its cause. He further submitted that instead of making this petition in this Court the petitioner ought to have called upon the trial Court to record a decision on the application. In my opinion all these submissions have little merit in the context of this case. There can be no quarrel with the proposition that truth is a virtue to be most admired and, perhaps, fanati cally adhered to, but, then, when it is pleaded with the sole object of deterring others from doing their duty or to blackmail it loses its quality as a value. The trial Court had nothing to do with the past antecedents or utterings of Mr. Yusuf Ali Khan or his mental state, and, as stated earlier, an inquiry into the allegations made in the application or a deci sion thereon would have been entirely irrelevant to the matter in issue before the Court. The respondent as a lawyer should have known this. I am surprised at the pleas taken by him in his defence to the charge of contempt of Court.

12. It was also argued by the respondent that the position of Mr. Yusuf Ali Khan was not that of a counsel before the trial Court for he had been taking personal interest in the litigation between the Bank and the respondent. In support of this assertion it was stated that the F. I. R. which was lodged against him by the Bank was written by Mr. Yusuf Ali Khan himself: Further it was Mr. Yusuf Ali Khan who had described him as a crook, dishonest and a liar. It was stated at the bar by Mr. Yusuf Ali Khan that he had described the respondent as crook, dis honest and a liar on the specific instructions of the Bank. However, that may be, I do not think that the circumstances upon which the respondent relies would have the effect of showing Mr. Yusuf Ali Khan as a man personally involved in the controversy.

13. For the reasons stated above I am satisfied that by making the Application the respondent committed gross contempt of Court inasmuch as the said Application was intended to deter Mr. Yusuf Ali Khan from r performing his function as counsel and thus to obstruct the due process of law. He is thus guilty of an offence under section 4 of the Contempt of Courts Act, 1976. As regards the sentence the first thing to note is that the application made by the respondent was by way of retaliation to the accusations made by the petitioner in its reply in which it was stated that the respondent was a crook, dishonest and a liar. This indeed was very strong language and ought so have been avoided by the petitioner. Mr. Yusuf Ali Khan claimed that he had used these expressions at the specific instructions of the petitioner. This may indeed be so, but as senior counsel he should have been more guarded to the use of language. However, that may be, I find that the conduct of the respondent was extremely contumacious. Even after a notice had been issued to him he appeared toy be relishing over the accusations which he made against Mir. Yusuf Ali Khan and insisted that he should be given an opportunity to prove the same knowing full well that truth or falsity of the accusations was entirely irrelevant for the purpose of these proceedings. He was entirely unrepentant in what he had done right till the conclusion of the argument when he offered a somewhat belated apology. I cannot but disapprove of his conduct Taking all these circumstances into considera tion I sentence the respondent to pay a fine of Rs. 1,000 or in default thereof to suffer simple imprisonment for a period of one month. He is allowed a period of one month to pay the fine. He shall also bear the costs of this petition.

Contemner convicted.