1. HAMOODUR RAHMAN, C. J.--This is an appeal by special leave from an order of a learned Single Judge of the High Court of Sind and Baluchistan at Karachi which reads as follows :- "In the High Court of Sind and Baluchistan at Karachi.
2. Sub --Complaint of Mr. Justice Muhammad All Sayeed, against Dr. Fasih Ahmad, Jinnah Post- Graduate Medical Centre, Karachi.
3. Dr. Fasih Ullah in person.
4. He has submitted reply in writing to the effect that the two patients who came to him for treatment on 16-9-1970 were not known to him to be the wife of Mr. Justice Muhammad Ali Sayeed and his Lordship's son and he regrets very much the treatment accorded to them. From his demeanour also he appears to have realised his mistake and in the circumstances no action is called for beyond the reprimand which I have administered to him. (Sd.)Abdul Kadir Shaikh, Judge. 19-9-1970."
5. Leave was granted in this case after condoning the delay in the filing of the petition for special leave to appeal to consider as to whether the High Court concerned had any jurisdiction at all to pass the above order.
6. When this appeal first came up for hearing on the 14th of June 1971, the learned Judges of the High Court of Sind and Baluchistan were, at the suggestion of the learned Advocate-General, Sind, impleaded as parties in the appeal in the place and stead of the Ministry of Law and Parliamentary Affairs, Government of Pakistan, and they were given an opportunity, if so advised, to file a written statement. The learned Judges of the said High Court, by a resolution passed on the 21st of August 1971, however resolved that since the subject-matter of the appeal was within the personal knowledge of only two of the learned Judges of that Court, they may take such action as may be considered advisable by them and the High Court, as such need not enter appearance. The learned Judges concerned have not considered it necessary to file any written statement or even to instruct any one to appear on their behalf.
7. The learned Attorney-General and the learned Advocate-General of Sind have, however, appeared in pursuance to the notices issued by this Court. The appellant is represented by Mr. Muzaffar Hassan.
8. The circumstances in which the impugned order came to be made may briefly be stated as follows :- On the 16th of September 1970, Mr. Justice Muhammad Ali Sayeed, one of the learned Judges of the High Court of Sind and Baluchistan, complained in writing to the then Acting Chief Justice of the High Court against the appellant to the following effect :-- "My son Sayeed Imran, aged 13 years, had been suffering with intense pain in left ear on account of a boil. Being myself in Court, I had advised my wife to take him to the Jinnah Post-Graduate Medical Centre for attention yesterday morning. My wife tells me that after considerable difficulty she was able to seek admittance into the room of Dr. Fasih Ahmed, the E. N. T. Specialist, incharge at the time. She was made to stand in the room for over 15 minutes while the doctor was engaged in frolicsome conversation with a couple of nurses. Eventually my wife was asked as to what had brought her there. Since Dr. Nizami of the Jinnah Post-Graduate Medical Centre was known to us, she inquired if `Nizami Sahib' was present. On this question Dr. Fasih Ahmed took umbrage and objected to Dr. Nizami being referred to as `Nizami Sahib'. He persisted in this objection beyond all proportions. Eventually he asked who needed medical attention. My wife replied that the boy had trouble in his ear, Thereafter he asked my wife to withdraw from the room while he examined the boy. My wife explained that the boy was a youngster and she would be in a better position to explain to the doctor his trouble and his symptoms. The doctor eventually refused to allow her to be present. Finally, he asked my wife to take the boy to his assistant and get him examined there.
9. Before my wife left Dr. Fasih Ahmed once again took up the issue of Dr. Nizami having been referred to as `Nizami Sahib' and showed his indignation on it. During the entire period that my wife remained with this doctor his conduct and behaviour was extremely objectionable and discourteous. It is indeed a shame that the doctors of a premier medical institution should behave in this unprofessional and indignified manner.
10. The number of complaints of similar nature have been increasing considerably of late and I trust that some action will be taken on this subject. (Sd.) Muhammad Ali Sayeed, Judge. 16-9-1970."
11. On this complaint, the learned Acting Chief Justice passed the following order :- "Dr. Fasih Ahmed of the E. N. T. Department of J. P. G. Medical Centre, Karachi is directed to appear before me on 18-9-70 at 12-30 p.m. (in Chambers) to show cause why action under the law should not be taken against him. Gist of the note recorded by Mr, Justice Muhammad Ali Sayeed shall be forwarded to him to enable him to show cause. A duplicate notice will be served on him also through the Administrator, J. P. G. Medical Centre, Karachi. (Sd.) Abdul Kadir Shaikh 17-9-1970."
12. In pursuance to this order, the Registrar of the Hign Court issued the following notice to the appellant :- "In the High Court of Sind & Baluchistan at Karachi.
13. Sub.--Complaint of Mr. Justice Muhammad Ali Sayeed, against Dr. Fasih Ahmed, Jinnah Post- Graduate Medical Centre, Karachi. Draft Notice.
14. No, 371-Gaz-1970 dated 17th September 1970.
15. You are hereby directed to appear before the Chief Justice on 18th September 1970 at 12-30 p.m. in his Lordship's Chamber in the High Court Building, Karachi, to show cause why action under the law should not be taken against you for the reasons mentioned in the accompanying note. (Sd.) S. Ashhad Ali Registrar (A. S.)"
16. The note accompanying the notice reads as follows :-- "In the High Court of Sind & Baluchistan at Karachi.
17. Sub.--Complaint of Mr. Justice Muhammad Ali Sayeed, against Dr. Fasih Ahmed, Jinnah, Post- Graduate Medical Centre, Karachi.
18. It has been reported that Sayeed Imran son of Mr. Justice Muhammad All Sayeed was taken by Begum Muhammad Ali Sayeed on 16-9-1970 to the E. N. T. Specialist, Jinnah Post-Graduate Medical Centre, Karachi in connection with consultation and treatment of the intense pain in the left ear of Master Sayeed Imran. After Begum Muhammad Ali Sayeed and Master Sayeed Imran were admitted into the room of Dr. Fasih Ahmed, the E. N. T. Specialist Incharge at that time, no attention was paid to them for some time. Thereafter, instead of examining the patient, Dr. Fasih Ahmed - indulged in unnecessary talk during which his conduct and behaviour was extremely objectionable and discourteous. Ultimately, the boy was not examined and was referred to his Assistant to get him examined there."
19. On the 18th September 1970, when the appellant appeared before the learned Acting Chief Justice, as directed by the notice, the following order was passed :-- "Dr. Fasih Ahmed present in person.
20. He has not furnished any reply in writing, and requests for time to do so.
21. Let him appear again tomorrow, the 19th September 1970, at 10-00 a.m. (Sd.) Abdul Kadir Shaikh, Chief Justice.
22. 18-9-1970."
23. Then on the 19th of September 1970, the appellant appeared again and submitted the following statement in writing :- "In the High Court of Sind & Baluchistan at Karachi.
24. Sub.--Complaint of Mr. Justice Muhammad All Sayeed, against Dr. Fasih Ahmed, Jinnah Post- Graduate Medical Centre, Karachi, The Honourable Chief Justice, The High Court of Sind and Baluchistan, Karachi.
25. My Lord Sir, I beg to submit that the patient Master Sayeed Imran son of Honourable Mr. Justice Muhammad All Sayeed came in the E. N. T. Department on 16-9-1970 along with his mother Begum Sayeed on 16-9- 1970.
26. Your Honour I did not know that the Lady was Begum Muhammad Ali Sayeed. Your Honour, Sir, if the Honourable Lady Begum Sayeed has been hurt by what I said I regret it very much and beg to be excused.
27. Thanking you, I beg to remain Sir, Your Most Obedient Servant, Fasihullah Dr. Fasihullah."
28. Presumably it was after this that the impugned order was recorded. The appellant did not do anything thereafter until the 24th of October 1970, when it is stated that he made a representation to the Medical Association of Pakistan. Even on this date he did not file any affidavit in support of his representation but an affidavit was subsequently put in on the 28th of October 1970, in which certain counter-allegations were made with regard to the language used by Begum Sayeed and it was stated that she took up an over-bearing attitude. The appellant also therein imputed that the learned Judges concerned made certain offensive and improper observations.
29. It is unfortunate that the learned Judges have not thought it fit to favour this Court with their own version of the incident, but having regard to the fact that the appellant did not approach the Medical Association for more than a month, we do not consider it safe to place implicit reliance upon the allegations in his affidavit even though they remain uncontroverted. The affidavit, as rightly contended by the learned Attorney-General, cannot be taken into account, for, it is not only belated but the statements contained therein have also neither been tested by cross-examination nor supported by any other circumstance. We propose, therefore, to accept the statement of facts as given in the written complaint of Mr. Justice Muhammad Ali Sayeed, and to examine whether the action taken thereupon by the learned Acting Chief Justice was within the scope of his powers.
30. It will be noticed that the procedure adopted by the learned Acting Chief Justice was the procedure which had ex fade all the pre-requisites of a judicial proceeding. A show-cause notice was issued, on the date of the first hearing, time was given to file a written statement and then after the written statement had been filed and the appellant heard a judicial order was recorded.
31. The question then arises as to what kind of a proceeding was contemplated by the learned Acting Chief Justice. It was at first suggested by the learned Advocate-General of Sind that the proceeding was of a purely administrative nature and all that was contemplated was that the complaint of Mr. Justice Muhammad Ali Sayeed should be taken up with the executive authorities having administrative control over the department in which the appellant was employed, but out of sheer force of habit the learned Acting Chief Justice directed the issuance of a show-cause notice.
32. If this was the intention, then it was wholly unnecessary to give time for filing a written statement or to record any formal order on the 19th of September 1970, nor was it necessary to mention in the show-cause notice issued to the appellant through the Registrar of the Court that the action contemplated against him was an "action under the law". In such a proceeding all this formality would have been uncalled for, nor would it have been appropriate to administer any reprimand to the appellant. The question of punishment would have arisen only after the conclusion of the departmental proceedings, if any, by the competent authority. The High Court, of course, had no kind of administrative control over the appellant, nor did it possess any jurisdiction to reprimand save in a judicial proceeding properly brought before it. We are not impressed, therefore, by the arguments of the learned Advocate-General in this behalf.
33. Alternatively, the learned Advocate-General sought to justify the order of the High Court as an order passed in the exercise of its power under clause 22 of the Letters Patent of the High Court of Judicature at Lahore, dated the 21st of March 1919. This clause reads as follows:-- "22. And we do further ordain that the High Court of Judicature at Lahore shall have power to direct the transfer of any criminal case or appeal from any Court to any other Court of equator superior jurisdiction, and also to direct the preliminary investigation, or trial of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case belongs in ordinary course to the jurisdiction of some other officer or Court."
34. The learned Advocate-General seeks to contend that the action contemplated by the learned Acting Chief Justice was to direct a preliminary investigation or a criminal case by an officer competent to investigate it in terms of this clause. When he was asked as to what was the case which could be so directed to be investigated he promptly referred us to section 504 of the Pakistan Penal Code. This section reads thus : "504. Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to breach the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both."
35. In support of this contention he referred us also to section 53 of the Penal Code to point out that a "reprimand" was not a punishment under the Penal Code but unfortunately in doing so he overlooked :the provisions of subsection (1-A) of section 562 of the Code of Criminal Procedure under which an "admonition" is also a punishment.
36. The learned Advocate-General, we regret to say, has, in urging this contention, completely overlooked that in the complaint of Mr. Justice Muhammad Ali Sayeed itself no offence at all is alleged but the appellant is charged therein only for having been guilty of conduct and behaviour of an extremely objectionable and discourteous nature. The learned complaining Judge actually concluded his complaint saying that "it is indeed a shame that the doctors of a premier medical institution should behave in this unprofessional and indignified manner". This is not an allegation of an offence under the Penal Code which could have been investigated by any Police Officer. In the circumstances, there is no foundation at all for this argument of the learned Advocate-General and clause 22 of the Letters Patent has no manner of application at all. This clause does not give power to the High Court to direct investigation into complaints at large of any and every kind. The power is limited to directing the investigation of "a criminal case" by an officer "competent to investigate." This clearly postulates that the ease must relate to some offence under the Penal Code which an officer is competent under the Criminal Procedure Code to investigate. An allegation of misbehaviour or misconduct, professional or otherwise, does not constitute such a 'criminal case'.
37. In any event, the show-cause notice itself does not give any indication that the powers under clause 22 were being invoked. It rather suggests that action in contempt was being contemplated.
38. This also finds confirmation from the wording of the written reply submitted by the appellant which was in the nature of an apology.
39. The only other provision under which the action could have been taken by the High Court was in the exercise of its power to punish for contempt, but unfortunately a contempt can only be committed where the effect of the words used is to scandalize the Court itself or to lower it in general esteem or to attract to the Court or any judge of that Court, in his capacity as such judge, feelings of hatred, ridicule or contempt as was pointed out by this Court in the case of Syed Mohsin Trimizy v. State . A contempt of Court cannot be committed by offering insult to members of the household of a Judge or his relations.
40. Even accepting the statement of facts as given by the complaining Judge himself in his written complaint we are in agreement with the learned Attorney-General that the learned Acting Chief Justice had acted under a complete misconception of the scope of his powers. He had no jurisdiction whatsoever to call up the appellant and deal with him in the manner he has done. It is regrettable that such action has been taken by a learned Senior Judge of a superior Court, for, it has unfortunately led to the erroneous impression that the learned Acting Chief Justice had deliberately been misguided into acting in excess of his known jurisdictions. It has to be remembered that the jurisdiction and powers of a Judge extend to the limits fixed by law and beyond that he cannot act. He should never give the impression that he has acted in haste, or what is worse, in anger. He must particularly avoid even the appearance of arbitrariness or high- handedness even though situations may well arise in which it may be difficult for him to retain his equanimity.
41. Having given our anxious consideration to the arguments advanced in this case, we are constrained to come to the conclusion that this appeal must be allowed and impugned order set aside as being wholly without jurisdiction and unwarranted by law. PLD 1965 SC 28