P L D 1962 Supreme Court 476 (PLP)

HAMOODUR RAHMAN, J.‑-This appeal has been filed under clause (d) of Article 159 of the late Constitution against the order of a learned Single Judge of the High Court of West Pakistan finding the appellant herein guilty of contempt of Court and sentencing him under section 3 of the Contempt of Courts Act, 1926, to pay a fine of Rs. 500 or in default of payment to suffer simple imprisonment for three months. The said contempt is alleged to have been committed by the appellant in a proceeding under section 491 of the Code of Criminal Procedure filed by one Hassan Muhammad for the production of one Mst. Daran who, he alleged, was his wife and was being wrongfully confined in the house of the appellant, her father. The said Mst. Daran was originally married to one Muhammad Yusuf of village Mehga, but the said marriage proved unhappy and ended in a divorce. Mst. Daran, thereafter, it is said, married Hassan Muhammad some 2 years before he filed the petition under section 491 of the Code of Criminal Procedure. The appellant at first, according to the said Hassan Muhammad, did not approve of the marriage but later became outwardly reconciled and used often to visit his daughter at Hassan Muhammad's house. In the course of one of such visits in the evening of the 7th of March 1960, it is alleged, the appellant took Mst. Daran back with him promising to bring her back within 2 days but he failed to do so, and on the 10th of March 1960, Hassan Muhammad came to learn that the appellant was ill‑treating his wife in order to compel her to go back to her first husband. He, accordingly, moved the petition under section 491 on the 11th of March 1960, and in this on the same day a notice was issued to the appellant herein "to produce Mst. Daran on a date to be fixed by the office." It appears that the office fixed the 15th of March 1960, for the production of the said Mst. Daran and sent the notice for service upon the appellant to the Sub‑Inspector in charge of Bhai Pheru Police Station. The said Police Officer, who was examined as a witness in this case, stated that the service was effected on the appellant after calling him to the Thana where the contents of the notice were translated in Urdu and explained to the appellant, and a statement was then obtained from him to which he affixed his thumb‑impression. The Police Officer did not, however, enquire if Mst. Daran was present in the house of the appellant, as he did not consider it necessary. It is said that in this statement the appellant had undertaken before the Police Officer to produce Mst. Daran in Court on the date fixed. In his own statement, however, the appellant denied having given any such undertaking to the Police Officer. He was cross examined at length and in the course of his cross‑examination he stated that Mst. Daran had not lived with him for 3 or 4 years. He had no personal knowledge as to whether she had married Hassan Muhammad but he had come to learn that Mst. Daran had eloped with Hassan Muhammad some 6 or 7 months ago. He was specifically asked as to whether on coming to know of this fact he made any attempt to get her back but he stated that although he did not want Mst. Daran to live with Hassan Muhammad, he did not make any effort to get her back: The appellant also examined some witnesses: Two of them stated that since Mst. Daran had been married to Muhammad Yusaf, ,she had not come back to the village. One of his witnesses, namely, Ghulam Muhammad alias Gama, also deposed to the effect that at the request of Yusuf a Panchayat was held to get back Mst. Daran from Hassan Muhammad and as in this Panchayat the person, who was said to have drafted the deed of divorce between Mst. Daran and Muhammad Yusuf, denied having done so, Mst. Daran was returned to Muhammad Yusuf. But in this affair the present appellant took no part. Another witness Bashir Baig stated that since Mst. Daran had eloped with Hassan Muhammad, the appellant had told them that he would not allow her to come back to his house. It is also pertinent to mention here that under section 491, Criminal Procedure Code, proceedings on the 2nd of January 1961, another petition was filed alleging that the said Mst. Daran was in the custody of other persons and the Court ad journed the case for a week to enable Hassan Muhammad to file the addresses of the said persons in whose custody Mst. Daran was alleged to be. This was done on the 13th of January 1961, and then a notice was issued on two persons, namely, Nazir and 'Raja, to produce Mst. Daran in Court. On the 13th of February 1961, learned counsel appearing for Hassan Muhammad again stated that since the last hearing of the case Mst. Daran had been passed on to other persons. Hence the petition under section 491 of the Code of Criminal Procedure was dismissed as having become infructuous. Notwithstanding that the conduct of Hassan Muhammad in the habeas corpus was itself sufficient to show that Mst. Daran was not in the custody of the appellant, the Court thought it fit to proceed with the enquiry for the committal of the appellant herein for contempt of Court for the breach of the alleged undertaking said to have been given to the Sub‑Inspector in charge of Bhai Pheru Police Station. The only evidence in support of this undertaking was that which was furnished by the Sub‑Inspector alone. No one else supported his statement nor does it appear to us probable that a Police Officer entrusted with the service of a summons would go out of his way to obtain an undertaking from the person served to comply with the summons, particularly, when he had himself made no effort to enquire if the person so alleged to have given an undertaking was in a position to comply with the same. In our view, there is no evidence at all on the record to show that Mst. Daran was ever in the custody of the appellant. It is significant that the only person who made such a statement in the petition under section 491 was Hassan Muhammad and he of all persons did not have the courage to come forward and support his state ment in the witness‑box and subject himself to cross‑examina tion. As against this there was the categorical denial of the appellant that he never gave any such undertaking and his statement that Mst. Daran had not come to live with him since the last 3 or 4 years was fully supported by the witnesses produced on his behalf. In this state 'of the evidence we are clear in our minds that there is nothing on the record to show that the appellant had ever been guilty of having committed any contumacious disregard of any order of the Court and in the' absence of any proof of such contumacious disregard of and order of the Court no committal for contempt was possible. It is no doubt true that the respect due to a Court itself is owed also to its processes but mere failure to obey any process of the Court, when other methods of enforcing the process are available, does not amount to a contempt of Court unless the person served with the process has done something more to A exhibit a disrespect for the process of the Court, as, for example, used insolent or indecent expressions or violent or profane language on being served with such a process or assaulted .o ill‑treated the process server. In this connection it may be relevant to quote the weighty observations of Sir George Jessel, Master of the Rolls, in the case of In re: Clements, Republic of Costa Rica v. Erlanger ((1876) 46 L J Ch. 375 at 385) where he clearly indicated the limits of, the exercise of this extraordinary jurisdiction:‑-- "It seems to me that this jurisdiction of committing for contempt, being practically arbitrary and unlimited, should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of Judges, to see whether there is no other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject. I say that a Judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found. Probably that will be discovered after consideration to be the true measure of the exercise of the jurisdiction." We respectfully agree with these observations and would venture to add that it is of the utmost importance that a committal for contempt should not be made unless the dis obedience shown is of such a serious nature as to indicate that the alleged contemner is deliberately out to flout the order of the Court and to treat it with some degree of contumaciousness. We find these elements hopelessly lacking in the present case, for, as we have endeavoured to show, there was no reliable evidence even to support the allegation that the appellant had given any undertaking of the kind alleged before the Sub Inspector of Police which could be treated as an undertaking to the Court itself. Again, we cannot help pointing out that there were other methods available to the Court, if it was satisfied that Mst. Daran was, in fact, in the custody of the appellant, to have her brought before it, say by the issue of a search warrant. That Mst. Daran was never in the custody of the appellant was, in no small measure, supported also by the conduct of Hassan Muhammad himself who subsequently alleged that she was in the custody of Nazir and Raja and then his counsel had ultimately to confess that she had been passed on to others thus indicating that Hassan Muhammad himself was not certain as to in whose custody the said Mst. Daran actually was, although the evidence of Ghulam Muhammad indicated that she had been returned to the custody of her first husband Muhammad Yusuf after a Panchayat. In these circumstances, we allow this appeal and set aside the conviction and the sentence of the appellant for contempt of Court. A.H. Appeal allowed.