The contemner is the Advocate of this Court. On the complain: of the Vth Senior Civil Judge and Assistant Sessions Judge, Karachi, Mr. Saiful Haq Hashmi, the contemner was issued notice to show cause, why action for contempt of Court, should not be taken against him. Since the facts alleged in the complaint were disputed, the contemner, as well as, the Senior; Civil Judge had filed affidavits in support of their respective contentions. The statement of the learned Civil Judge was also recorded in this Court and he was cross-examined by the contemner.
2. The background resulting into these proceedings briefly summarized is as under: The learned Vth Senior Civil judge/Assistant Session Judge Karachi reported to the Registrar of the Court by away of complaint against the contemner that on 17August, 1974 at 8-30 a. m. When he was busy in the judicial work in his chamber, the contemner entered the Court room and openly and loudly started abusing and threatening the staff of the Court, using filthy and abusive language, addressed towards the complainant. The contemner was stated to have loudly accused the complainant and his staff, for having allegedly accepted the bribe from the defendants in Suit No. 1462/74, in which the contemner was appearing for the plaintiff. The complainant had overheard all the allegations and the threats, while sitting in his chambers, which is separated by a small partition-wall of about 6 feet high, between the chamber and the Court room. The complainant is alleged to have repeatedly uttered the follow--ing words: "That the Judge has taken Rs. 10,000 for vacating the status quo from the defendants and he does not know me. I have set many Judges right and I will set him right also."
At the time when the contemner was uttering the contemptuous words, he was approached by another senior Advocate, Mr. Mehar Alam Siddiqui, who explained to him and took him out of theth Court room. Since the contemner had administered threats, to the complainant and his staff, with dire consequences and had challenged the dignity and authority of the Court, by openly and loudly scandalising the Court and insulting and disrespecting the Presiding Officer, by making wilful and reckless allegations of bribery, the complainant reported the matter to the then District Judge, Karachi.
3. It was further alleged in the complaint that the contemner had been visiting the Court with 15-20 Hindus (Bheels) and creating terror and harrasment on every hearing, in order to terrorize and harras the staff and thereby interfered with the administration of Justice and judicial work. Even for the purpose of moving applications for interlocutory orders, the contemner was alleged to force his way into the chamber of the complainant, even at the time, when the complainant was busy dictating judgments. The behaviour of the contemner was thus described as objectionable.
4. On the strength of such a complaint, the matter was placed before the then C. J. Of this Court, who was pleased to direct the issue of notice of contempt on 20September, 1974 to the contemner. During the proceedings affidavits, in support of their respective contentions, were filed by the contemner, as well as, the complainant, The matter was heard on several hearings and various counsels had represented the contemner, at different stages, whereas the Advocate- General had appeared to assist the Court Finally on 16th October, 1978 the contemner filed a statement in the Court which is reproduced hereunder: "As notice for contempt was issued by this Hon'ble Court to me, I, irrespective of the defence that I have raised, in difference to the said notice and the high regards and deep respect that I hold for this Hon'ble Court, express my sincere regrets for any circumstances which may have occasioned the issuance of the said notice. I also consider it my obligation to add that I hold the learned Civil Judge who initiated the matter for contempt proceedings, in high esteem.
The Judicial institution as a whole is worthy of respect, generally, as it is this institution, alone which has remained unpolluted by visicitudes to which the other institutions in our State, have from time to time, succumbed.
I assure this Hon'ble Court that I shall take extreme care to see that in future, even the slightest occasion, which may give cause for concern to any member of the judicial institution, is scruplously avoided from my side.
When the matter came up again on 24October, 1978 the complai--nant also filed a statement which reads as under: That the Respondent, Mr. U. Niamat Moulvi Advocate, has submitted his "unconditional apology" before this Hon'ble Court on 16th October, 1978 and has realised the maintenance of high dignity respect and decorum of the Courts. He has also assured that "he shall take extreme care to see that in future even the slightest occasion which may gave cause for concern to any member of the Judicial Institution is scruplously avoided by him."
That the applicant humbly submits that admittedly he has/had nothing personal against Mr. U.
Niamat Moulvi and he has/had no personal grievance against him; and being a senior member of the Bar he has much respect and regards for Mr. Moulvi. Whatever the applicant has done was his duty as the Presiding Officer to maintain the dignity and decorum of the Courts.
That as such in the circumstances, without prejudice to his case, the applicant humbly submits that purely in the interest of maintaining the best relations between the Bench and the Bar which always results in the best interest of administering Justice, Mr. Moulvi's apology may be considered."
5. On the basis of these two statements, Mr. Wajihuddin, the learned counsel appearing for the contemner has submitted that the statement of the contemner in all respects amounts to tendering of an unconditional appology and he has placed himself at the mercy of this Court, and keeping in view the statement of the complainant, the unconditional apology should be accepted.th th In support of his contention he has relied upon the case of Yusuf Ali Khan. Bar-at-Law Yusuf Ali Khan v. State (PLD 1977 SC 482) where in the passage of the judgements of Lord Denning were quoted which reads as under:- "This is the first case, so far as I know, where this Court has been 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."
"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 tire applicant for transfer had a genuine grievance which he put in a temperate and properly worded document." ---------..No wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat, of justice.. The path of criticism is a public way, the wrong-headed are permitted to err therein------..Justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."
6. It has been argued that when the contemner is an Advocate of this Court, and hoe has tendered unconditional apology, the superior Courts have invariably taken due notice of such sincere apologies, to avoid giving any impression of any vindication in the matters of contempt. It is also argued that the contemner has assured the Court that he shall take extreme care to see that in future, even the slightest action which may give cause for concern, to any member of the judicial institution would be scruplously avoided from his side. In the light of such a situation, he had placed himself at the mercy of the Court. On his part, the complainant in his statement, referred to hereinabove, has also displayed no grudge on any kind to the contemner, if he has undertaken that in future lie will not repeat what he did in his Court.
7. The learned Additional A. G. Mr. A. S. Shaikh has supported the contention of Mr. Wajihuddin and has submitted that the apology, though tendered late, should be accepted, since it has been sincerely made to advance the interest of justice. He has relied upon the case of Fakhre Alain reported in Fakhre Alum v. State (PLD 1973 SC 525). And has particularly referred to the passage at page 534, wherein, certain criteria was laid down in the following words for determining, whether the apology tendered by the contemner was worthy of acceptance or not. These factors were:--
(i) Whether the appellant appreciated that his act was within the mischief of contempt by interference with the administration of justice;
(ii) Whether he regretted it ; (i.e) Whether his regret was sincere ;
(iv) Whether it was accompanied by expression of a resolution never to repeat the offence; and
(v) Whether he made humble submission to the authority of the Court.
8. In the result, under these circumstances I think that it would be in the interest of justice that the unconditional apology tendered by the contemner be accepted. I would therefore accept his apology and discharge the notice of contempt issued against him.