1980 P Cr (PLP)

The story put forth by the appellant was challenged on factual grounds by the opposite-party, therefore, both the parties were allowed to adduce evidence. The Magistrate concerned, Mian Mohammad Saloom, was examined as a Court witness. After recording the evidence his Lordship the then Chief Justice was pleased to adjourn the case for announcement of judgment but before the judgment could be announced, a `jirga' consisting of Asstt. Commissioner and a number of other officials of the District Administration including the Deputy Superintendent of Police, Hangu, was assembled under the orders of `.he Deputy Commissioner, Kohat at Hangu, wherein the appellant begged pardon from the Magistrate concerned and the Magistrate was prevailed upon to accept the apology. An affidavit to the effect that he had accepted the apology was obtained from the said Magistrate on the advise of the Additional Advocate General S. Ibne Ali. This affidavit w placed on file of the contempt proceedings as Exh. H. C. Z. The conduct of the A. C: and the D. C. both did not find approval with the learned Chief Justice who was of the view that it had compromised the position of the Magistracy and the learned Chief Justice that they had not done so. The learned Judge had a mind to issue a notice of contempt to the said Officers also, but he took into consideration that they might have acted under mistaken notions, e.g., promotion of good relations between the police and Magistracy. The learned Judge at the conclusion of the trial passed the order of conviction and sentenced the appellant, as stated above. But the execution of the sentence was suspended for 15 days to enable the appellant to move the Supreme Court if he was so advised. The appellant has filed this appeal under section 10(1) of the Contempt of Court Act, 1976, praying inter alla; that the appellant had tendered unqualified apology to the Magistrate himself for the contempt of Court and as the Magistrate had accepted the same, therefore, the conviction and sentence of the appellant was not sustainable; that the appellant had also tendered unqualified apology to his Lordship the Chief Justice and as such the appellant bad thrown himself at the mercy of the Court and finally that the judgment of his Lordship the then Chief Justice in arriving at the conclusion of the guilt has referred to certain facts which are not on the record of the case. This according to the appellant rendered the impugned judgment liable to be set aside. The complainant, Haji Saeed Gut also filed an appeal against the order praying for the enhancement of the sentence of the accused-appellant and awarding the costs to the complainant. Mr. M. Zahoorul Haq, Bar-at-Law, appeared on behalf of the appellant while S. Masoom Shah Advocate represented the complainant, Mr. Inayat Elahi Khan, Advocate-General, N.-W. F. P. also appeared on behalf of the State. The learned counsel for the appellant has raised a preliminary objection to the competency of the appeal of the complainant on the ground that the Contempt of Court Act, 1976, hereinafter called Act, did not provide for a complainant or an informant of the contempt a right of appeal against the order of conviction which right was only available to the accused convict. The learned counsel for the complainant in order to meet this objection, has advanced the theory that after the conviction of an accused under the Act the position of the contemner becomes of a convicted accused undergoing a sentence and the provisions of the Criminal Procedure Code in this regard came into play. When confronted with the position that under section 411(A)(1) of the Criminal Procedure Code only a convicted person on, a trial held by a High Court in the exercise of its original criminal jurisdiction has been allowed the right of appeal and under subsection (2) thereof the Provincial Government has been authorised to direct the public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction, the learned counsel for the complainant submitted that the appeal may be treated as a Revision Petition under section 439 of the Criminal Procedure Code. Learned counsel for the complainant is labouring under misconception of law in asking us to treat his appeal as petition under section 439 (ibld), as the powers under the said section are not available to the High Court to revise an order of the Court itself passed by a Single Judge. The learned counsel for the appellant in support of his contention that the appeal of the complainant was not competent has referred to the West Pakistan Water and Power Development Authority v. Chairman, National Industrial Relations Commission (P L D 1979 S C 912). It was a case in which an appeal was filed before the Supreme Court of Pakistan, against the order of the High Court, who did not feel inclined to move further in an application for the proceedings of Contempt of Court in the circumstances of the case and did not issue any notice or any rule nisi nor did frame a charge. Their Lordships of the Supreme Court held: "The matter of contempt is essentially between the Court and the contemner. If the Court concerned for reasons of its own and in the exercise of its discretion does not feel inclined to take any action or for example accepts an apology in a given case, it is not for any other Court much less an appellate Court of authority to direct the said Court that it must proceed in the matter or to reject the apology. This is on the principle that the power to punish for contempt is to by exercised only by the High Court whose contempt has been committed and not by any other Court. It was on this principle that it was held in The State v. Shaukat Ali P L D 1976 Lah. 7 to which two of us Muhammad Akram and Karnm Elahee Chauhan, JJ, were parties that a case of contempt could not be transferred from the maligned High Court to another High Court so as to deprive the concerned High Court from exercising its jurisdiction in the matter. When therefore section 10 talks of an "Order under this Act" being appealable, in its very nature confiding ourselves to the facts and the circumstance of the present ease, it mean an order of conviction and not an order of the kind involved there in. At this place we may mention that we are also keeping apart case of acquittal in contempt after formal charge and trial anti we reserve our views qua them for the present leaving the matter to be considered in some -more appropriate case. For the present, we are concerned merely with a case of a type where the High Court has not felt inclined to move further in the matter, it has neither issued a notice, nor any rule nisi, and nor framed a charge. In this context therefore when the High Court has not felt it necessary to proceed any further it is not an order of the kind contemplated for appeal under section 10." From the above quotation of the relevant portion of the Judgment it would become clear that the case in hand is entirely different than the case which was before their Lordships. But respectfully agreeing with the dictum laid down by their Lordships that in the matter of contempt the matter is entirely between the Court and the contemner, we would be reluctant to interpret to section 10 in such a manner as to widen its scope to encompass the appeal by an informant, challenging the quantum of punishment awarded to the contemner by the High Court in exercise of its original jurisdiction under section 4 of the Contempt of Court Act, 1976. We are, therefore, constrained to holds the appeal of the complainant as incompetent. The learned counsel for the appellant has not pressed the last mentioned ground of appeal in the above narration, i.e. that the judgment under appeal is defective on the ground of taking into consideration those facts which are not on the record of the case and has rather confined himself to the earlier two grounds, namely the tendering of the apology by the appellant to the Magistrate concerned as well as to this Court in his explanation. Now coming to the contention of the learned counsel for the appellant that the tendering of the apology by the appellant to the High Court in his explanation and then after the conclusion of the evidence to the Magistrate concerned would not warrant the examination of the conduct of the appellant during the course of the events wherein the contempt of Court was committed, as he has thrown himself to the merely of the Court. On this plea the learned counsel for the appellant urges that the punishment awarded to the contemner was not warranted by law, as the trend of the superior Courts in contempt matters had always been on the side of accepting the apology and deeming the tendering of an unconditional apology sufficient to vindicate the honour and the prestige of the Court. In The Advocate-General, West Pakistan, Lahore v. Mr. Shabir Ahmad, Senior Advocate, Supreme Court and others (P L D 1963 S C 610), their Lordships of the Supreme Court considered the worth of an apology tendered after making every effort to justify action complained of, as not unqualified apology or even apology simpliciter and the learned Judge delivering the judgment for the Court held "I am not satisfied that such an expression of regret after making every effort to justify the action complained of can be treated as an unqualified apology or even as an apology simpliciter. "An attempt", it has often been said, "to justify the conduct and at the same time to express regret for the act is a contradiction in terms". Where it is contended, as in the present case that the publication could not possibly amount to a contempt, the subsequent apology can hardly be regarded as genuine. Learned counsel appearing for this respondent has very chivalrously accepted full responsibility for the inartistic language in which the apology is couched and has explained that in drafting it he had been influenced by the views expressed Mr. Tek Chand in his book on the Law of Contempt, 1949, 2nd Edition at page 325, where the learned author has suggested that the "Insistence on the part of the Court that the unqualified apology should precede their findings on the question whether any contempt has been committed is in comprehensible", for, according to him, there may be cases where after hearing arguments the Court may come to the conclusion that no contempt has in fact been committed. In such cases no apology is called for and, therefore, the apology tendered in advance is wholly meaningless. This view, however, of the learned author is not supported by any authority of any Court. Indeed, even according to what the learned author has himself said in his book the Courts every where appear to have always insisted that an apology must be unqualified and should be tendered at the earliest stage, that it should precede and not succeed the other pleas raised on behalf of the contemner. This Court has also expressed itself to the same effect in the case of Sir Edward Snelson v. The Judges of the High Court of West Pakistan P L D 1961 S C 237." In the instant case the appellant while submitting his explanation has made his level best to justify his actions and it is only towards the end that just to fulfil a formality he has tendered the so-called apology in the following words :- This apology after making every excuse to justify his actions is only a half hearted attempt to pacify the Court which at the face of it lacks sincerity and as admitted by the appellant was submitted on 21-1-1979 on a very belated stage, while a notice of contempt was served on him much earlier. The appellant for the second time tendered apology to the Magistrate concerned in the `jirga' as quoted above in the circumstances under which he had brought the whole weight of pressure of the District Administration on the Magistrate concerned for accepting the apology and that too at the stage when the recording of evidence against him was concluded by the High Court and the case stood adjourned for the announcement of the order. It is now well-established law that an apology in the matter of the contempt of Court should not only be sincere and unconditional but also be tendered at the earliest possible stage. The learned Chief Just' y while dealing with this apology was fully justified in holding the apology as "too late in the day. There could be no escape from the conclusion arrived at from the behaviour of the appellant prior to the initiation of the proceedings in this Court and daring the trial that the tendering of apology to the Magistrate concerned was just an attempt to circumvent the anticipated conviction by this Court. The learned Chief Justice has given a number of - instances in his judgment which clearly establish that till the conclusion of the evidence the appellant was behaving in somewhat arrogant manner and was trying to justify his conduct of disobeying the order of the Court. The record reveals that even after the vacation of the order of the Deputy Commissioner by the Sessions Judge Kohat. the appellant had yet made an attempt to withhold the seized rice by applying to his superiors to allow him to proceed with the investigation from another angle and to till then not releasing the seized rice. Such type of behaviour and tendering of apology as was done by the appellant came under the consideration of the Supreme Court of Pakistan in Muhammad Yunas v. The State (P L D 1976 S C 449) wherein Mr. Justice Dorab Patel, J. held as under :- "I agree with the view that an apology submitted mechanically is not sufficient by itself to purge the contemner's contempt. A contemner cannot save himself from punishment by submitting an insincere apology. He must submit an unconditional apology and show by has conduct that he has -repented of his behaviour. Additionally, the learned Single Judge has also taken into account the fact that interference with the Courts was increasing, and it cannot be said that this was a circumstance extraneous to the law of contempt." Respectfully agreeing with the above-quoted dictum of law we are clear in our mind that the apology tendered y the contemner in the High Court as well as to the Magistrate in the `jirga' convened by the Deputy Com missioner lacked the element of sincerity and was tendered at such a belated stage as it could not purge the contempt committed by the appellant of the Court concerned. The learned counsel for the appellant has lastly contended that the contempt committed by the appellant by disobedience of the order of the Magistrate would not be as severe as contempt in faciam curiae. Further that the sentence awarded to the appellant by the learned Single Judge might be justified in the case of contempt in faciam curiae but it was not certainly warranted in the kind of contempt committed in the instant case and the tendering of, apology should have been considered sufficient to purge the contempt and vindicate the honour of the Court concerned. As far as the two kinds of contempt mentioned by the learned counsel for the appellant are concerned we do not find any substance in the contention as the difference in regard to the mentioned kinds of contempt might be in the procedure which the Court follows in dealing with the same, in that in the case of contempt on faciam curiae the Court would not be required to follow any elaborate procedure as of the issuance of a show-cause notice first and then after getting the explanation to proceed with the ascertainment of the truth by recording of evidence etc., before awarding any sentence or pardoning the contemner. In that case a mere verbal notice at the spot with- according full opportunity to contemner to explain his conduct would be sufficient and the contemner can be awarded sentence instantaneously. In case of the contempt of the subordinate Court, as is the case in hand, the High Court would have the ample power to purge the contempt by any suitable sentence provided by law. In case of G. S. Gideon, Advocate v. The State (P L D 1963 S C 1), when the contempt of Court Act, 1976, bad not been enforced and the proceedings were governed under the Contempt, of Courts Act, 1926, the Supreme Court of Pakistan has explained the legal position in regard to the punishment of an offender under the above-mentioned Act as compared to the provisions of the Penal Code as under :- "It is, in this' connection, significant that when some difference of opinion arose in the High Courts in British India as to their power to punish for contempts of subordinate Courts in view of the provisions of sections 175, 178, 179, 180 and 228 of the Penal Code, the Legislature intervened to clarify the position by the enactment of the Contempt of Courts Act, 1926. This Act neither defined a contempt nor created any offence nor conferred any jurisdiction but assuming the existence of the jurisdiction of the High Courts even to punish for contempts of Subordinate Courts merely limited the punishment which could be given in respect of such contempts when punished by the High Court itself. This assumption by the Legislature, if anything, confirmed that the High Courts undoubtedly, possessed the power not only to punish for contempts of their own Courts but also for contempts of Courts subordinate to them." The controversy in regard to the jurisdiction of the High Court in regard to the contempt of Courts subordinate to it was set at rest by incorporating a clear provision in the later Act of 1976. Section 5 of the Act reads as under :-- "

5. Jurisdiction.-(1) A High Court or the Supreme Court, on its own information or on information laid before it by any person, may take cognizance of an alleged commission of contempt of the Court. (2). The Supreme Court shall have the power to take cognizance of any contempt of itself or of any Judge of the Supreme Court alleged to have been committed anywhere and a High Court shall have the power to take cognizance of any contempt of itself or of any Judge thereof or of any otter High Court or of any Judge thereof alleged to have been committed within the territorial limits of its jurisdiction. (3) A High Court shall exercise the same jurisdiction in respect of contempts of Courts subordinate to it or to any other High Court as it exercises in respect of contempts of itself. (4) Nothing contained herein shall affect the power of any Court to punish any offence of contempt under the Pakistan Penal Code (Act XLV of 1860)." Section 6 of the Act contains a bar to the taking of cognizance by the High Court under the Act of a contempt alleged to have been committed in respect of a Court subordinate to it where- the said contempt is an offence punishable under the Pakistan Penal Code. The facts of the case would show that the offence committed by the appellant does not fall under any of the sections 175 to 180 and 228 of the Penal Code to attract the bar of section 6 of the Act. Contempt of Court has been defined under section 3 of the Act, inter alia, as "whoever disobeys or disregards any order, direction of process of a Court, which he is legally bound to obey is said to commit "Contempt of Court". Section 4 of the Act while providing punishment for the offence of contempt of Court does not differentiate between the contempt by disobedience of the order of the subordinate Court and the Contempt in faciam curiae in respect of the quantum of the punishment. We are firm in our opinion that the contempt by disobedience of the order of the Magistracy by a Police Officer in the manner as was committee by the appellant does not lessen the aggravation of the offence. Nevertheless, whatever the behaviour of the appellant might have been before the conclusion of the recording of the evidence in the High Court, a certain amount of repentance thereafter was shown by him and in an attempt to purge himself of the contempt by an apology, no matter how late in the day offered by the appellant to Mian Muhammad Saleem the Magistrate concerned in the assembly of a number of the officers of the District Administration including a superior Police Officer. This apology was accept by the Magistrate concerned, although he had told the contemner in clear terms that the matter at that stage rested solely with the High Court. This apology, because of its acceptance by the Magistrate concerned cannot completely thrown out of consideration though, of course, it was late in the day as observed by the learned Judge. We are, therefore, of the vie that the ends of justice can meet and the honour of the Court concerned can be vindicated if the conviction of the appellant under section 4 of the Contempt of Court Act, 1976 is maintained, but the sentence of imprisonment awarded to the appellant is reduced to that of his imprisonment till the rising of the Court plus the fine already imposed on him by the learned Sing Judge or in default one month S. I. as already awarded. In consequence of the above discussion the appeal partially succeeds. The sentence awarded to the appellant is reduced to that of the imprisonment till the rising of the Court with the fine of Rs. 1,000 (one thousand) or in default to undergo one month S.

1. Order accordingly.