1. HAMOODUR RAHMAN, C. J.-These two appeals arise out of two contempt proceedings drawn up by the High Court of West Pakistan, Lahore Seat, against the appellant, who is a Barrister---at-Law and a member of the High Court Bar. In each of these cases he has been found to be guilty of contempt and has been sentenced to undergo simple imprisonment for one month in each case and to pay fines of Rs. 1,000 and Rs. 2,000 respectively. In default of payment of the fines he has to undergo further simple imprisonment for a period of one month and two months, respectively, but the sentences of imprisonment are to run con--currently.
2. Criminal Appeal No. 2 of 1969 arises out of a notice issued to the appellant, under section 3 of the Contempt of Courts Act, by the Registrar of the High Court of West Pakistan, Lahore, under the directions given by Jamil Asghar, J. On 17-6-68 for having scandalised the Sessions Judge, Sahiwal in a transfer application under section 526 of the Criminal Procedure Code, filed in the High Court in the case of State v. Muhammad Amir and others being Criminal Miscellaneous Application No. 1934 of 1968.
3. The said Muhammad Amir and two others, who had been charged under section 302/34 of the Pakistan Penal Code were, during the pendency of the commitment proceedings, granted bail by the Sessions Judge of Sahiwal on the 16th September 1967. Shah Muhammad, the father of the murdered person, moved an application in the High Court for the cancellation of the bail but the application was dismissed. Muhammad Amir and his co-accused were thereafter committed for trial to the Court of Sessions and once again Shah Muhammad moved the Sessions Judge, Sahiwal for the cancellation of the bail and engaged the appellant for this purpose. This was fixed for hearing on the 6th December 1967, but when the case reached its turn the Sessions Judge, without giving any reasons, adjourned the hearing till the following morning. On the following day the application was rejected and the trial of the case was fixed for the 13th of May 1968. A transfer application was thereupon filed on the 29th April 1968, supported by an affidavit of Shah Muhammad affirmed on the same date.
4. The transfer petition in Criminal Miscellaneous No. 1934 of 1968 and the affidavit in support thereof were drafted by the appellant and they contained the following averments:- "(a) That the father and members of the family of the respondents are talking in the village that they have made arrangements with Khan Muhammad Siddique Ahmad Khan, Sessions Judge, and that the respondents would be acquitted on the 15th May 1968.
(b) That the respondents' father is a wealthy man and is in a position to pay a heavy sum of money to procure the acquittal of the respondents.
(c) That it is generally known in the District of Sahiwal that the Begum of Khan Muhammad Siddique Ahmad Khan is friendly with the Begum of Mr. Salim, counsel for the respondents, and that if cash is paid to the former through the latter, the learned Sessions Judge honours the commitment made by his wife.
(d) That the Anti-Corruption Counsel of the Provincial Government has made a reference to the High Court of West Pakistan seeking permission of the Hon'ble Chief Justice and Judges of the High Court to allow the Anti-Corruption Department of West Pakistan to make inquiries into the allegations of corruption against Khan Muhammad Siddique Ahmad Khan, and that the Anti- Corruption officials are engaged in making a probe against the learned Sessions Judge in the District of Mianwali and Lyallpur, where he had been posted before coming to Sahiwal, the High Court having granted permission for the probe.
(e) That it is generally said in the District that Khan Muhammad Siddique Ahmad Khan shall never convict a man who is willing to pay him anything.
(f) That the petitioner's suspicions are strengthened by the fact that the learned Sessions Judge did not hear his application for cancellation of bail on the 6th December 1967, although he had issued a notice for that date, and that when he heard it on the 7th December, he did not record his reasons for his decision and that he did not make any mention of the arguments propounded by the learned counsel for the petitioner.
(g) That the order of the learned Sessions Judge was set aside and bail of the respondents cancelled by this High Court on l7th January 1968 (Cr. Misc. No. 5770 of 1967)."
5. Besides these it was also alleged in paragraph 6 of the transfer petition that "the learned Sessions Judge adjourned it (the bail cancellation application) on the 6th December 1967, because he wanted to show favour to the respondents for the reasons well---known to him".
6. When this transfer application came up for hearing in the High Court, a report was called for from the Sessions Judge, Sahiwal. In this report the Sessions Judge stated that the allegations made against him were incorrect and baseless. He further pointed out that on the morning of the 6th December 1967, while he was attending to his office work in his retiring room, the appellant came to see him at about 9 a.m. And told him that he had come to appear in his Court in connection with an application for cancellation of bail in a murder case and that he would produce an authority on the point that bail must be refused if the case is committed to the Sessions. The learned Judge did not consider it proper on the part of the appellant to discuss a pending case with him in his retiring room and, therefore, told him that he should produce the authority at the time of arguments in Court. Thereafter when the case was called up for hearing in the Court he felt that if he heard the case then, the accused persons and their counsel, who had seen the appellant coming out of his retiring room, might carry the impression that the appellant had seen him in his retiring room in connection with the case. He, accordingly, adjourned the case.
7. On perusing the report of the Sessions Judge, the High Court asked the appellant at the hearing of the transfer application if what was stated by the Sessions Judge was correct. He admitted that he had seen the Sessions Judge in his retiring room but stated that he had gone there only to pay his respects. The High Court considered it very improper on the part of the appellant to have gone into the retiring room to see the Sessions Judge and to have talked to him about the case in which be was to appear before him on that very day and took the view that it placed the Sessions Judge in a "most awkward position". The transfer application was, accordingly, dismissed but it was left to the discretion of the Sessions Judge to transfer the case to one of his Additional Sessions Judges if he considered that he would not be able to Judge the case with an unbiased mind.
8. This order was passed on the 16th May 1968, but when this was communicated to the Sessions Judge, he wrote back on the 29th May 1968, that the allegations in the transfer application having been found to be baseless and scandalous, he should be given protection by taking suitable action against the appellant. It was thereupon that the show-cause notice was directed to be issued on the 17th June 1968.
9. It was further pleaded that, according to the principles of English Law, an Advocate is absolutely privileged and no proceedings can be taken against him either for defamation or for contempt of Court in such circumstances. In support of this contention reliance was placed on the decision in the case of Munster v. Lamb ((1883) 2 9 B D 588). It was further reiterated that the appellant had not visited the Sessions Judge, Sahiwal in his retiring room in connection with the application for cancellation of bail but had merely made a courtesy call, thinking that it was his professional duty to do so. He stayed in the retiring room only for a few minutes and during this period nothing was discussed except the weather and the surprise visit paid to that Court by a learned Senior Puisne Judge of the High Court. Nothing was mentioned about the case or about producing any authority in support of the cancellation of the bail.
10. It was further pointed out that this was not the first occasion on which the appellant had made such a courtesy call on the Sessions Judge concerned. He had done so on previous occasions too when the learned Judge was posted at Mianwali and the appellant was to appear there before him in a murder case but the learned Judge had not taken any objection to such calls by the appellant.
11. Indeed it was the practice of the appellant to call upon the Judge before whom he had to appear and he had done so on many occasions but no one had taken any objection thereto. Even the learned Sessions Judge of Sahiwal had not pointed out to the appellant that it was improper for him to call upon a Judge when he was to appear in a case before him.
12. Finally it was stated that "although the respondent has not committed any offence" yet he would, in deference to certain observations of the then Chief Justice of Pakistan in the case of Sir Edward Snelson (PLD 1961 SC 237), offer his "unconditional apology to the Court for anything done by him which the Court has thought fit to take exception to".
13. The High Court took the view that in the transfer application "allegations of the gravest nature had been made against the integrity and impartiality of the learned Sessions Judge of Sahiwal, not only with regard to the particular case with which Shah Muhammad was concerned, but generally with regard to all cases coming up before the said Judge. Not content with maligning the Sessions Judge alone, even the fair name of his wife was dragged in to suggest that she was receiving bribes on behalf of her husband through a lady friend". According to the High Court these allegations constituted the grossest form of scandalisation of the Court and needed to be visited with severe punishment. The High Court also took the view that the principle of Muntser v. Lamb was not attracted in this case. On the contrary it followed the principle enunciated by Cockburn, C.
14. J. In Ex parte ; Peter ((1864) 5 B & S 299=122 E R 842), wherein it had been held that a Barrister may be punished for contempt of Court even for language professedly used in the discharge of his functions as an Advocate.
15. Having disposed of the claim of privilege, the High Court went on to examine a number of other decisions wherein it had been held in this sub-continent that "counsel's privilege does not extend to stating his instructions when these instructions involve an attack on the dignity of the Court, and that members of the legal profession are under no duty to their clients to make scurrilous charges either against Judges or the opposite-party on the mere wish of their clients".
16. The High Court was also of the view that there was inherent evidence in the transfer application itself to reflect the personal annoyance of the appellant with the learned Sessions Judge, for, the complaint that the learned Sessions Judge had taken no interest in his arguments at the hearing of the application for cancellation of bail must have been based upon his personal observations and not of his client.
17. The contention that since the Sessions Judge himself had not taken exception to the appellant's visit to his retiring room, there could be no question of embarrassment for the learned Sessions Judge, was treated by the High Court as being of no consequence, because the appellant was not being proceeded against on that account but in respect of the allegations contained in the grounds filed in support of the petition for transfer.
18. The High Court did not also accept the apology tendered at the end of the written statement and described as an "conditional apology" as sufficient evidence of "real contrition," on the part of the appellant. It was felt that the apology was being tendered not because the appellant wanted to apologise but because he felt compelled to do so in view of the observations in the case of Sir Edward Snelson. In any event the plea of justification and apology could not be treated as being mutually compatible. In this view of the matter the appellant was found "guilty of having made a wanton and reckless attack on the integrity and dignity of the Sessions Judge of Sahiwal" and was convicted and sentenced, as stated above. It was also directed that the case of the appellant should be referred to the West Pakistan Bar Council to consider in the interest of the litigant public whether he was a fit person to continue on its rolls as an Advocate.
19. Criminal Appeal No. 3 of 1969 arises out of another pro--ceeding started under Article 123 of the Constitution of 1962 in the following circumstances:- It appears that the appellant on the 28th June 1968, wrote a long letter to Jamil Asghar, J., of the High Court which has been reproduced in extenso in the judgment of the High Court. In this letter he complained that the Judge concerned was hostile towards him and was in the habit of insulting him in open Court in the presence of the public. It will be sufficient for our present purposes however, to quote only the last two paragraphs of this letter: "(4) I am fully aware of the background of your hostility and am in no doubt that your behaviour is not because of any personal grievance of your own and that there is some other man behind it.
20. Whatever the reasons, I am aggrieved by your behaviour and do hereby emphasise once again that it does not behove a Judge of the High Court. I shall go still further, and that it does not behove even an ordinary gentleman. As a Judge of the High Court you must act as a Judge and your decisions must be judicial and not tainted with personal malice for one reason or the other. I have no hesitation in saying that your Lordship's decisions in both the Criminal Miscel--laneous petitions (1934 of 1968 and 2770 of 1968) and the two earlier petitions filed on behalf of Sarfraz Ahmad are not judicial, but rather founded on your personal hostility.
(5) In view of the above I feel I should request that you may advise the Deputy Registrar not to fix my cases before you. It is both in the interests of justice, as well as the "interest of your person", because I make it clear that I shall not pocket any more insult and it might result in a country-wide, rather world-wide scandal. Again, it is highly undesirable that wrongful orders should be wilfully passed by you to the detriment of others because of your hostility towards me."
21. He was served with a notice on the 17th July 1968, to show cause as to why he should not proceeded against in contempt for the scandalous language used in this letter whereby it had been imputed that the learned Judge had been motivated by malice and improper motives in the rendering of his decisions and the performance of his duties.
22. The appellant submitted a written statement, through a learned Senior Advocate, on the 20th September 1968, in which he admitted having sent the letter but denied that its language was either scandalous or that it had been written with any intention of scandalising the Judge concerned or the Court. He claimed that the letter had been addressed to the learned Judge by name and marked confidential "with a view to expressing the injured feelings" of the appellant. No publication had, it was said, in the circumstances been intended or taken place. Therefore, there had been no scandalisation at all. He also maintained that the tone of the letter was neither insolent nor disrespectful. Indeed he asserted that he had nothing personal against the learned Judge and finally he concluded again by citing the observations made by Cornelius, C. J., in the case of Sir Edward Snelson and offering an unconditional apology to the Court for anything done by him which the Court had thought fit to take exception to.
23. At the hearing of the matter an attempt was made to bring in other evidence with regard to the comments alleged to have been made by the Judge concerned but the High Court refused to admit this evidence and decided to proceed on the basis of the contents of the letter itself.
24. Reading the letter as a whole the High Court came to the conclusion that it did scandalise the Court and tended to bring the High Court or a Judge of the High Court into ridicule or contempt.
25. Portions of the letter were clearly intended to intimidate the Judge so as to prevent the latter from acting in a free and independent manner while dealing with the appellant's cases in Court. Indeed the imputations in the letter were found to be clear enough to suggest that the learned Judge was in the discharge of his judicial functions, being influenced by extraneous considerations and that even his actions were being influenced by "some other man behind". It directly charged that the learned Judge's decisions in at least two mattes were not judicial but founded on his personal hostility against the appellant.
26. The concluding paragraph of the letter was also found to be not only insolent and offensive but also to contain a threat, virtually ordering the Judge to direct the Deputy Registrar of the High Court not to fix the appellant's cases before him as "it is both in the interests of justice, as well as the interest of your person". The hint is obviously at physical violence besides other injury.
27. This paragraph also contains a threat that the appellant would not pocket the alleged misbehaviour on the part of the Judge and any repetition of it might well result in a country-wide, rather world-wide scandal.
28. The conclusion of the High Court with regard to this letter is as follows: "Reading the letter critically and analytically as above, and also reading it as a whole it is clear to us that it is perhaps one of the most insolent, most offensive and most scurrilous communications ever addressed by a practising member of the Bar to a Judge of the superior Court of which such member claims to have the honour of being an Advocate."
29. With regard to the pleas raised the High Court had no hesitation in holding that the letter even though it was addressed directly to the Judge and marked confidential did constitute a contempt of a most serious kind as the contention that unless there was publication of the letter there could be no contempt was untenable. Reliance for this was placed on the observations of Kayani, C. J. In the case of Abdul Latif (PLD 1961 Lah. 51).
30. The attempt made by the learned counsel, appearing for the appellant in the High Court, to suggest that the latter had been provoked by the unpleasant behaviour of the learned Judge himself, also failed to impress the High Court, which took the view that "an outburst 'of temper or impatience on the part of the Judge cannot justify a member of the Bar in resorting to the language which the respondent (now appellant) has thought fit to employ in the letter under consideration".
31. The apology tendered at the end of the written statement was also not accepted as it had been tendered more out of a feeling of compulsion in view of the observations of this Court in the case of Sir Edhvard Snelson rather than out of any feeling of contriteness on the part of the appellant. The appellant was, accordingly, found guilty and punished as earlier stated. He has now come up on appeal to this Court.
32. I take up Criminal Appeal No. 2 of 1969, first as it stands on a somewhat different footing. The appellant has neither in his written statement before the High Court nor in his petition in this Court disputed that the words used by him in the transfer application were capable of bearing the meaning assigned to them by the High Court. All that has been stated is that the appellant had "drafted the application on the express instructions of the petitioner Shah Muhammad and with no intention of making any attack on the honesty and integrity of the learned Sessions Judge, Sahiwal or to offend against the dignity of the Court or to bring the administration of justice into disrespect".
33. The appellant claims that he is in the circumstances absolutely privileged in making these allegations on the basis of the principle enunciated in the case of Munster v. Lamb.
34. The appellant has further taken up the ground that since the learned Sessions Judge is under the control of the High Court, any allegation against him contained in an application made to the High Court in any form would not constitute a contempt of Court.
35. It would thus appear that although in the High Court the appellant did not seek to justify the allegations as being true he has done so in this Court. In his written statement filed in the High Court he had merely suggested that since the allegations were made on the express instructions of his client, it would be desirable that the client himself "should be called upon to prove the allegations made by him against the learned Judge."
36. At the hearing of the contempt matter in the High Court the learned counsel appearing for the appellant had also, it appears, scrupulously avoided attempting to justify the allegations and had relied mainly on the plea of privilege taken on behalf of the appellant and the apology tendered at the end of the written statement.
37. The question, therefore, that arises is as to whether an Advocate or a legal practitioner can in the proper discharge of his duties make such scandalous imputations against a Judge even though he be a person under the superintendence and control of the High Court, in a formal proceedings moved in a Court. The appellant seems to think that he was not only entitled to do so but it was, in fact, his duty to do so. In support of this contention he has relied on certain observations of the Federal Court in the case of S. M. Haq v. Hon'ble Judges of the High Court of Judicature at Lahore (PLD 1953 FC 247). S. M. Haq, an Advocate enrolled in the High Court of Lahore had been suspended by that Court from practising as an Advocate for a period of 3 months in exercise of the powers resting in that Court under clause 8 of its Letters Patent on the ground that while acting as Senior counsel in an appeal before the Federal Court against a judgment of the High Court he had included in the written grounds filed in the Federal Court, material which, in the opinion of the High Court, constituted a contempt of that Court. In that case, the majority judgment, pointed out that having regard to the fact that the Federal Court does not interfere on the criminal side in any case unless the error is "so outrageous as to shock the very basis of justice" or such as constitutes "a violation of the principles of natural justice" counsel presenting a petition for special leave to appeal before that Court are indeed placed in a difficult position in undertaking this duty. They are, therefore, entitled to expect that the Courts would appreciate their difficulties and even "where there is an appearance of transgression" will regard it with sympathy and toleration, for, without such a reassurance "the apprehension that the criticism which they are obliged to offer may be viewed in a personal or over-sensitive light must act to deter counsel in the performance of their duties to such an extent as would necessarily affect the Court's capacity to do complete justice in cases coming before it.
38. It is true that this difficulty was felt by the Court but the Court immediately went on to point out that from this it must not be imagined that "counsel enjoyed the same degree of liberty of expression as is possessed by the Court". Having regard to the necessarily "tentative nature of the submissions advanced by counsel", the Federal Court administered the following caution:- "In other words, without minimising in any way the function of stating in substance what he wishes the Court to hold, provided the Court is competent to hold it, counsel should be careful not to add to the difficulties of his position by needless stringency of language. Provided the criticism is advanced with the single purpose of aiding in the due dispen--sation of justice, no words employed can be too strong, if in choosing them, it is also borne in mind that so far as possible, no words should be used which gratuitously bring disrepute to, or be little, the Judges or the Court whose work is being criticised."
39. The Courts concern to preserve the balance was manifested further by its concluding observations to the following effect: "In a future case, it may be a matter for serious consideration whether the need to ensure that the counsel who assist this Court in dispensing justice should enjoy the degree of liberty of expression appropriate to the courage they must display in preparing and pressing their grounds, does not outweigh the need for ensuring against the danger of such liberty being abused, and whether the full and undoubted powers of control vested in the Court is not, in the circumstances, a sufficient safeguard."
40. It is significant, however, to note that even in that case the learned counsel appearing for S. M. Haq did not ask for protection against "the consequences of deliberate and malicious libel or slander".
41. All that he asked for was that conditions must be provided in which counsel can perform their difficult duties with the utmost fearlessness and yet be protected "against the existence of means by which a lawyer might be overawed and reduced to a state of pussilanimity, by reason of something said or done by him in the course of performing these duties".
42. "The right to criticise a judgment does not carry with it the right to condemn the Judges themselves, and if under special circumstances, the duty demands condemnation, I would say that even then decorum and decency must be observed."
43. This case does not in our opinion, support the wide contention of the appellant, for, all the learned Judges of the Federal Court were at pains to point out that the right of criticism o f the action or judgment of a subordinate Court in a proceeding filed in a higher Court which was couched in indecent or un-decorous language or made scandalous or malicious allegations against the integrity or honesty of the judge concerned ought not to be permitted. However difficult the nature of the task before the lawyer, this much, however, is certain that a lawyer cannot utilise this opportunity to give vent to his own pique against the judge concerned by slandering him in such an outrageous manner as the appellant has done in this case.
44. The next case in which this question came to be considered by the Federal Court was the case of S. Israr Hussain v. The Crown (PLD 1954 FC 315). That too was a case of an affidavit filed in the High Court with a transfer application under section 25 of the Civil Procedure Code in the course of a suit on the original side of the Chief Court of Sind. More or less similar allegations were made against the Judge concerned in that cafe too and for these allegations Israr Hussain, an Advocate of the said Court, was convicted for contempt and sentenced to one month's imprison--ment. There too it was pleaded at the Bar that the language used in the affidavit was not used with any intention to scandalise the Judge but the allegations were nevertheless sought to be justified and it was said that they could be proved to be true if adequate opportunity was given to do so. It was there also claimed that the allegations were privileged. The Federal Court rejected each one of the said contentions. Munir, C. J., observed: "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."
45. With regard to the plea of justification and the truth of the allegations the learned Chief Justice observed: "The whole principle of 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 defending their own personal honour against the onslaughts of persons who are parties to causes pending in their own Courts."
46. As regards the plea of privilege the learned Chief Justice posed the following question: "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?"
47. His answer was: "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."
48. He further pointed out that "there is no law and none has been cited before us that where a party in an application for transfer makes wanton, reckless and uncalled for allegations against a judicial officer, such allegations are immune from the penalty for contempt merely because they occur in an application for transfer. On the contrary, there are cases where action for contempt was held to be competent even where a Judge was scandalised by a party in the taking of a legal or statutory step."
49. Two pre-Partition Full Bench decisions, one from the Allahabad High Court and another from the Patna High Court in the cases cited as In re : Dowarkadas (I L R 46 All. 121) and In re Shiva Kumar Jha (I L R 8 Pat. 575) were referred to as instances of cases where statements in application for transfer made grave and scandalous charges of prejudice or unfairness or corruption and they had been held to amount to professional misconduct on the part of the legal practitioner who made them on the basis that they also constituted contempt of Court.
50. The extent of the privilege enjoyed by counsel in moving an application for transfer came before this Court in the case of M. H. Khondkar v. The State (PLD 1966 SC 140). In that case too the appellant, who is an Advocate of the Dacca High Court, had moved an application for the transfer of a case then pending before a Division Bench presided over by the Chief Justice of the High Court to another Bench, and in the (round of this application it was alleged that the client apprehended that he would not get fair justice from that Bench as one of the parties to the litigation, namely; the Dacca Improvement Trust, had acquired some land belonging to the said Chief Justice in Dacca.
51. Proper by payment of compensation at an abnormally high rate and that the Improvement Trust had re-allotted to the other member of the Bench some 3 or 4 months earlier a plot of land the allotment of which had been cancelled for non-compliance with the terms and conditions of the allotment. Contempt proceedings were drawn up against the learned Advocate concerned as well as the party on whose behalf the transfer application had been made and they were both convicted. They appealed to this Court. Cornelius, C. J., who delivered the leading judgment took the view:-
(a) that it was 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 a subordinate Court ;
(b) such a plea of bias may be raised even if it involves criticism of the superior Court in point of its capacity to do justice ;
(c) such a plea would necessarily bring the counsel also within the range of contempt unless it can be totally justified on factual grounds, onus of establishing which lies exclusively on the counsel; and
(d) mere apprehension in the mind of a litigant that he may not get justice such as is based on inference 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.
52. With these propositions three of the other learned Judges did not fully agree. S. A. Rahman, J., and Kaikaus, J. Thought that "the only species of bias in a Judge of a superior Court that can be pleaded with immunity from proceedings in contempt, is that by which the Judge is disqualified from acting by reason of such identity of interest with a party as makes him a Judge in his own cause". Kaikaus, J., thought that the integrity of Judges of superior Courts was not open to challenge at all.
53. I myself took the view in that case that the general propositions enunciated by Cornelius, C. J., had been too widely worded. In my opinion such a plea could only be raised if it did not have the effect of scandalising the Judge or imputing improper motives or judicial dishonesty to a Judge or to under--mine the confidence of the public or to lower the authority of the Court or to obstruct or interfere with the administration of justice. Normally it should be confined to stating only the facts necessary to show bias. Exceeding this limit would expose the litigant as well as his counsel who pleads for transfer to punishment for contempt.
54. This brings me now to the question of the privilege of counsel raised by the appellant. It is true that according to the principles enunciated in Munster v. Lamb some of the Courts in England have taken the view that counsel are entitled to absolute privilege in respect of anything done or said by them in the course of the discharge of their professional duties. But the law B on the subject so far as this country is concerned was fully reviewed by this Court in the case of M. Moosa v. Muhammad and others (PLD 1968 SC 25). There this Court after reviewing all the relevant decisions on the subject came to the conclusion that the privilege is only of a qualified nature. The opinion of the Court, which was delivered by Fazle-Akbar, J., is to the following effect: "In my opinion, it is not always safe and proper to import, in its entirety, the rules of English law on this subject as principles of equity, justice and good conscience. No doubt, upon the grounds of public policy and free administration of law certain privileges are extended to the Judges, Advocates and witnesses. Now the question is, as to what extent a lawyer should enjoy this privilege? Should he be given protection of absolute privilege? In other words, can the question of malice, mala fide and irrelevancy be raised with reference to words spoken or written by an Advocate in his professional capacity. The English law gives absolute privilege on the ground that in the public interest it would not be desirable to enquire whether the words spoken or written by him in his professional capacity, were malicious or not. In my opinion, the English Courts have extended this privilege much more Than was reasonably necessary to protect the interest of discharge of the duty of an Advocate which is the foundation of his privilege. It is true that in public interest and for the benefit of administration of law, a lawyer requires protection and that hiss immunity should be large enough to enable him to perform his legal duties honestly and fearlessly and that he should not be exposed to the risks of a spiteful litigation. But it does not mean that he should also have the privilege of being malicious. His duty is to assist the Court, to protect the interests of his client. He, however, should not be given a licence to make such defamatory statements which are not pertinent to the discharge of his duties or to the protection of the interests of his client. Where there are privileges there are also corresponding obligations and liberty should not be allowed to degenerate into licence. The Court has, therefore, to see whether what is said in response to a duty or right, is quite connected with and relevant to the issue in question. But if the statement deals with a matter is not in any reasonable sense germane to the subject-matter in issue, the protection of privilege should not be extended to that statement. If, however, having regard to all the circumstances of the case, the Advocate might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the protection of the interest of his client or discharge of his duties, he would be protected. This view, in my opinion, will be more consistent with justice and legal principles.
55. I, therefore, concur in the view taken by the Full Bench of the High Court of Lahore. In re : S. M. Haq (PLD 1953 Lah. 188), that the privilege enjoyed by an Advocate is of a qualified nature.
56. I may also point out that this is the present view in America where it has been repeatedly held that no privilege would attach to words spoken by an Advocate unless they are material and pertinent to the question involved in the inquiry. See American Jurisprudence, Vol. 33, Libel and Slander, p. 179, Irwin v. Aschrust (1938) 74 P (2nd) 1127 and Lyne v. Kirby (1929) 278 Pac. 1046.
57. For the reasons stated above, I am of the opinion that privilege will apply to an Advocate with reference to what is written and published in response to a duty or right and that if anything is found in the thing published which is not reason--ably appropriate to that duty or right then privilege could not be extended to that. In other words, an Advocate will be entitled only to claim qualified privilege for words spoken or written in his professional capacity and not an absolute privilege as found by the High Court."
58. I concurred with that view then and still do so, as no valid reason has been shown to me for making a departure there-- from.
59. Applying this test in the present case I have no hesitation in saying that what the appellant has done cannot in any way be protected. The allegations which have been made by him are, in no way pertinent. Indeed the appellant has even gone out of his way to defame the wife of the Sessions Judge concerned and wantonly traduced his integrity and honesty in the vilest possible manner. Even now he insists on maintaining that the allegations, made by him are true.
60. As to what happened between him and the Judge concerned in the Court on the 6th and 7th of December 1967, the appellant is no doubt speaking from his own recollection and according to his version it is clear that the appellant himself was annoyed at the conduct of the learned Sessions Judge. There can be no doubt, therefore, that in moving the transfer application the appellant was partly also giving vent to his own sense of annoyance and not merely trying to protect the interest of his client. This he could not do. The claim for absolute privilege is neither available to him in law nor was it in the circumstances of this case a bona fide one. The High Court was in my view, there-- fore, right in holding that the malicious vilification of the Sessions Judge indulged in by the appellant in the transfer application clearly amounted to contempt of Court.
61. The last plea of the appellant in this connection is that in any event his apology, even though tendered at the end of his written statement, should have been accepted as it was an unconditional apology. Since this question is common to both the appeals, I will deal with it last.
62. I now propose to take up for consideration the contentions of the appellant in Criminal Appeal No. 3 of 1969.
63. This letter not only made imputations against the conduct and behaviour of the Judge in the discharge of his judicial functions but also charged him with lack of fairness, a quality essential for the proper discharge of the office of the Judge and even went on to intimidate the Judge with personal harm and involvement in a wide scandal if he did not desist from such behaviour. This was clearly also an interference with due administration of justice. There can be no doubt that it constituted the grossest kind of contempt imaginable.
64. The contention of the appellant, however, is that even if the words were per se capable of amounting to contempt, there was no contempt in this case as there was no publication of the offending letter. The letter was marked confidential and delivered, it is said, personally to the learned Judge. The question that has been raised is that unless there is publication there can be no contempt. In support of this contention reliance is placed on the observations of Shabir Ahmad, J. In the case of State v. Abdul Latif where also a letter had been addressed to one of the Lahore High Court Judges by the complainant in a criminal case after he had disposed of a transfer application. In that letter too imputation had been made to the effect that the learned Judge concerned had decided the transfer application on considerations other than judicial. This letter was accompanied by a cheque of Rs. 1,000 with a request that the Judge should give the money to re-imburse some of the accused persons and for finding out the truth.
65. Shabir Ahmad, J. Had no doubt in his mind that at places the language used in the letter was highly objectionable. Never--theless, he thought that since the writer of the letter had not published the letter he did not bring himself within the ambit of the definition of contempt of Court, for, without such publication the writing of the letter itself could not be said to be calculated to obstruct or interfere with the administration of justice or the lawful processes of Court.
66. Kaikaus, J., disagreed with this view and upon this disagree--ment the matter was referred to another Bench presided over by Kayani, C. J. And Yaqub A.I, J. They both agreed with Kaikaus, J.
67. That the writer of the letter in that case was guilty of contempt.
68. This plea of publication was sought to be raised also in the case of State v. Mir Abdul Qayyum (PLD 1964 Lah. 661), Advocate but there a Full Bench of the Lahore High Court took the view that sending of a telegram amounted to publication inasmuch as the telegram was addressed to the Chairman, Public Service Commis--sion. It appears, however; that the view of Kayani, C. J., finds support from a number of English decisions also which have held that a communication to a Judge making reflections on the administration of justice in his Court or on his capacity as a Judge amount to contempt. Thus in the Piffard's case (1 Hyde. 79), the demand of an apology from a Judge for his insulting behaviour in Court towards Mr. Piffard, a Barrister, by his friend, Captain Francis, at the house of the Judge was treated as a contempt. Similarly in the case of Lord Advocate v. Jamieson (1822 1 Sh. 286), a letter written to the Lord President of the Court of Session reflecting on his judicial conduct, couched in disrespectful and contemptuous language was held to be contempt on the ground of being injurious to the due administration of justice.
69. The same view has been taken by High Courts in this sub--continent. Thus in the case of Sub- Judge First Class, Hoshang Abad (AIR 1940 Nag. 407) a letter written to a Judge by a judgment- debtor in execution proceedings containing an imputation against his impartiality, suggesting that he had acted unlawfully with a view to cause loss to the party and containing a threat was held to be a contempt of a serious nature. It was observed in this case that as Judges have to discharge responsible and often disagreeable duties "it is essential that they should be afforded the utmost protection if the administration of justice is to remain independent, clean, fair, unbiased and impartial".
70. It is unnecessary to multiply cases as they have been exhaustively examined both by Kaikaus, J.
71. And Kayani, C. J. In the case of Abdul Latif but I would endorse the following observation of Kayani, C. J., in that case: "If a Judge had the misfortune of being thrown on a society or Government which was constantly critical of his judicial conduct, however privately and confidentially it were done, he would indeed be a super human being if his judicial mind were not impaired. And if this be the result of letters addressed privately, I have no hesitation in saying that they are pre--judicial to the administration of justice."
72. I am, therefore, unable to agree with the appellant that publi--cation is necessary for holding that private communication to a Judge amounts to a contempt.
73. PLD 1966 SC 94), it was held by this Court that even the interruption of a proceedings in Chambers may amount to contempt of the Court's authority and dignity. This also would support the conclusion that publication is not a must.
74. This brings me to the question as to whether the apology tendered by the appellant in these cases should have been accepted. His contention is that he was only called to the Bar in 1965 and enrolled to the High Court in 1966, The High Court should, therefore, have taken his inexperience into account in considering as to whether his apology should be accepted or not as was done by the Dacca High Court in the case of the State v. Delawar Hussain (PLD 1961 Dacca 153). There the Court, after finding the learned Advocate guilty of contempt, took the view that since he was a junior member of the Bar it would be sufficient to let him off with a warning, without imposing any punishment in respect of what. Was, in the opinion of the Court, a glaring case of contempt.
75. The appellant has also invoked in aid the observations of the majority in the judgment of this Court in the A. K. M. A. Awal's case (PLD 1964 SC 256), where this Court observed that in considering whether the apology should be accepted or not the following facts should be taken into account:
(i) As to whether the appellant appreciated that his act was within the mischief of contempt;
(ii) Whether he regretted it ;
(iii) Whether his regret was sincere ;
(iv) Whether it was accompanied with expression of the resolution never to repeat again; and
(v) Whether he made humble submission to the authority of the Court.
76. There the finding was that the contemner who was a Sub---Divisional Magistrate, had tendered a full, unqualified and complete apology and admitted that what he had done was done without realising that it amounted to an offence and thrown himself on the mercy of the Court giving an undertaking that thereafter he will never make such a mistake and will never write about any pending case in future.
77. The facts of the present; case are entirely different. Here the appellant has not only attempted to justify his allegations but has even in this Court claimed that if he had been given the opportunity he would have been able to establish the truth of those allegations so far as the Sessions Judge of Sahiwal was concerned.
78. With respect to the imputations against Justice Jamil Asghar he merely says that in Court he had said nothing to the learned Judge in spite of his rude behaviour towards him. The appellant has also relied on a decision of the Indian Supreme Court in the case of M. Y. Sharif v. Judges of the Nagpur High Court (1), to show that an apology tendered even in the Supreme Court was taken into account to absolve the contemner in that case who was also a member of the Bar, on the ground that in border line cases "where a question of principle of the rights of counsel has to be settled an alternative plea of apology merits consideration", for, every form of defence in a contempt case cannot be regarded as an act of contumacy. It has however, to be pointed out that in this very case it was observed that "there cannot be both justification and apology. The two things are incompatible".
79. This Court also had occasion to deal with this questions in the cane of Israr Hussain v. The Crown (AIR 1955 SC 19) and to point out that "an apology in contempt cases can be mitigating circumstance only if the contemner surrenders himself unconditionally to the judgment of the Court". An apology after every conceivable defence has been taken, adjudicated upon and repelled and an appeal to the Federal Court has failed, can "hardly be considered to be genuine or received with sympathy". The apology tendered in the present case does not satisfy any one of the conditions laid down in the A. K. M. A. Awal's case. There is nothing inherent in the words used to show that the appellant was sincere in regretting what he had done. Indeed his stand in the High Court was that what he had done was absolutely privileged. In this Court he has gone further and taken up the stand that what he had said was not only privileged but also justified and true. The very conditions laid down by Cornelius, C. J., there--fore, are lacking in the present case, for, the appellant even now does not appreciate that what he did came within the mischief of contempt.
80. The very fact that he came up to this Court to challenge the decision of the High Court shows that he is still labouring under the impression that he was privileged to make those allegations.
81. The appellant has tried to make a great deal of the fact that he is a Barrister who has been trained under the English Law and since under the English Law a Barrister enjoys absolute privilege, he was under the impression that the same law applies in this country. This is an argument which does not lie in his mouth. His very training as a lawyer should have made him appreciate that when he practises in this country he practises according to the laws of this country and not the laws of England. As a practising member of the Bar in this country it is expected that he should be aware with the state of the law prevailing here and it is idle for him to plead ignorance. Ignorance of law cannot serve as an excuse even to a layman, far less to a person who professes to practice the law himself.
82. This Court, no doubt, has the power in a suitable case to reduce the sentence. But as a rule, it refrains from interfering with a legal sentence, particularly, where the sentence is just and proper, as it is in the circumstances of this case.
83. For the reasons given by me above, I would, therefore, dismiss both these appeals and uphold the convictions and sentences of the appellant.
84. MUHAMMAD YAQUB ALI, J.-I agree, SAJJAD AHMAD, J.-I agree.