2003 P Cr (PLP)

The English common law rule is also similar to that as expressed by Crawford (supra), which has stated the position in the United States (see Maxwell on Interpretation of Statutes, 12th Edition, 1969, at page 19, Maxwell, while relying upon Phillips v. Hopwood (1829) 10 B. & C. 39; Tattle v. Grimwood (1826) 3 Bing. 493; and Fuller v. Redman (1859) 29 L.J.Ch. 324 has stated the English common law rule, which is to the effect that where an Act is repealed and the repealing enactment is then repealed by some other statute, which manifests no intention that the original Act shall continue being repealed, the repeal of the second Act revives the first one ab initio. An illustration has been given by Maxwell of Eton College v. Minister of Agriculture (1964) Ch. 274, wherein it was held that once the Ecclesiastical Leases Act, 1571 had been repealed in 1803, the former Act stood automatically revived 14 years later. When the Act of 1803 was in turn repealed. The application of this common law principle appears to have been altered through statutes, firstly by the Lord Act 1850 and then by the Interpretation Act 1889. In terms of section 11(1) of the Interpretation Act, 1889, the "repealing enactment' would not automatically revive the earlier enactment unless words were added reviving that enactment. The precise meaning of the expression "repealing enactment" is unclear and has given rise to conflicting decisions in the English jurisdiction. In terms of the opinion of Hannen, J. in Butcher v. Henderson (1868) LR 3 QB 335, section 11 "has for its object to prevent the revival of statute contrary to the intention of the Legislature". This observation appears to nullify the impact of section 11(1) of the Interpretation Act, 1889 since according to this the Court will have to see as to whether the Act which is proposed to be revived is or is no, contrary to the intention of the Legislature, whereas the. clear words in the said section ‑11 (1) categorically state that till such time there are express words to revive the enactment, nothing would automatically revive.

20. In Pakistan there is some authority for the enquiry, in issue. Muhammad Arif v. State 1993 SCMR 1589 recognizes a distinction between temporary enactments and permanent statutes. However, this judgment does not squarely provide an answer to the issue involved here. It is important to point out that here we are not looking into the question of continuation of proceedings under a repealed enactment since the charge itself had been framed well after the expiry of the 1998 Ordinance.

21. The first judgment on this issue from our own jurisdiction appears to be Crown v. Haveli PLD 1949 Lah. 550 wherein the Bench comprised Muhammad Munir, A.C.J., Cornelius and Khurshid Zaman, JJ. Writing for the Court Cornelius, J. held that withdrawal by the Provincial Government of the provisions of the Disturbed Areas Act from the District were to leave the law as it was previously, so that the punishment of the offence as laid down in toe Indian Penal Code would stand attracted. The other learned members of the Full Bench concurred with Cornelius, J. In Arbab Muhammad Hasham Khan v. The Crown PLD 1953 Pesh. 72 section 3 of the N.‑W.F.P. Public Safety Act, 1948 was replaced by the amendment made by the N.‑W.F.P., Public Safety (Amendment) Ordinance, 1952. The Amendment lapsed due to efflux of time and as such .it was held that the said amendment ceased to have any operation and consequently section 3 of the N.‑W.F.P. Public Safety Act, 1948 stood automatically revived, In State v. Muhammad Sharif PLD 1960 Lah. 236 a learned Division Bench of the Lahore High Court has given a categorical finding to the effect that where a temporary statute repeals a permanent statute, the repeal remains effective only till the life of the temporary statute' and when the temporary statute expires, the permanent statute again emerges. In this case it was also held that section 6 of the General Clauses Act, 1897 was also not applicable in cases of expiry of temporary statutes. In the present case Ordinance V of 1956 was found to have expired due to efflux of time in view whereof it was held that the permanent statute i.e. Ordinance X of 1955 stood automatically revived. The said Ordinance X of 1953, though initially temporary in nature, had acquired permanence by virtue of Article 224 of the 1956 Constitution, which had contained a saving clause and such effect had been duly recognized by the Supreme Court in Jibendra Kishore v. The Province of East Pakistan PLD 1957 SC

9. Another case i.e. Pakistan Tanneries Ltd. v. Sardar Hidayatullah Mokal PLD 1972 Lah. 880 provides further guidance in the matter. In this case a Division Bench of the Lahore High Court has followed the earlier judgments on the point while observing that the expiry of temporary statutes would result in an automatic revival of previous laws. I have further been able to lay my hands on a judgment of the Division Bench of the Quetta High Court reported as Abdul Ghani v: Province of Balochistan PLD 1982 Quetta

63. In this case the words "rural areas" were dropped from the title and preamble as also from section 1(1) of the Balochistan Acquisition of Land (Housing and Development Schemes in Rural Areas) Act, 1974 in view of an amending Ordinance, bearing Ordinance No. VIII of 1976. Said Ordinance was not placed before the Provincial Assembly within three months (as required by Article 129 of the 1973 Constitution). In view whereof the said Ordinance stood automatically repealed. In consequence of such repeal the words "rural areas" occurring in the preamble, title and section 1(1) of the 1974 Act stood automatically revived and introduced. This judgment once again propounds the principle that in case of expiry of an Ordinance due to efflux of time the original and permanent statute would regain the field which had earlier been repealed by the Ordinance. Similar are also the conclusions of our Supreme Court in relation to taxing statutes, (see CIT v. Ebrahim D. Ahmed and others 1992 PTD 1353.

22. Section 6 of the General Clauses Act, 1897 provides for the effect of repeal. Section 6(a) in particular provides that the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect. This provision would be of little help in the circumstances since being similar or Article 264(a) of the 1973 Constitution it would not lend guidance as to whether upon expiry of the second statute, the first statute would be "in force" or in existence. The case of State v. Muhammad Sharif (cited supra) further confirms the non‑application of section 6 of the General Clauses Act to the situation where the second statute, being an Ordinance, lapses due to efflux of time. The latter view is also consistent with the position in the Indian jurisdiction on this point which can be confirmed from State of Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945 wherein the Indian Supreme Court has held that section 6 of the General Clauses Act do not apply to temporary statutes. Section 7 of the General Clauses Act is analogous to section 11(1) of the English Interpretation Act, 1899 (discussed above at para. 19), as the 'said section 7 provides that `In any .... Act... it shall be necessary, for the purpose of reviving ... any enactment wholly or partially repealed, expressly to state that purpose". The word "expressly" as underlined above is very important since it confirms that there would be no automatic revival. However, it would seem that the said section 7 also would have no application to statutes expiring through efflux of time. In coming to this conclusion I am further fortified by the view of Justice G.P. Singh in Principles of Statutory Interpretation: 5th Edn., 1992, at p.368, which reads as follows:‑‑ "(d) Repeal by a temporary statute When a temporary statute effects a repeal of an existing statute, a question arises whether the repealed statute revives on the expiry of the repealing statute. Section 11(1) and section 38(2)(a) of the Interpretation Act, 1899, in terms are limited to cases of repeals of a repealing enactment and have no application to a case of expiry of a repealing Act. As regards the General Clauses Act, 1897 section 6(a), which corresponds to section 38(2)(a) of the Interpretation Act, is also in terms limited to repeals,; and therefore, has no application on expiry of a repealing statute. But in section 7 of the General Clauses Act, which corresponds to section 11(1) of the Interpretation Act, the language is slightly different: However, having regard to the context and the setting of the section it appears also to be inapplicable to a case of expiry of a repealing statute."

23. In India the law regarding revival of permanent statutes upon lapse of temporary legislation is now discussed in Gooderham and Works Ltd. v. Canadian Broadcasting Corporation AIR 1949 PC 90 there are observations to the effect that a repeal by a temporary Act is prima facie only a temporary repeal resulting in revival of the repealed provisions after the expiry of the repealing Act. The relevant observations may hereby be quoted:‑‑ "The result is that on 31st March, 1936, the temporary legislation contained in the first Act of 1933 repealing provisions of the principal Act of 1932 and substituting other provisions came to an end not by the repeal of the temporary legislation but by the efflux of the prescribed time. No question, as to the revival of the temporary repealed provisions of the principal Act of 1932 by the repeal of repealing legislation, arises. When by the fiat of Parliament the temporary repeal expired, the original legislation automatically resumed its full force. No enactment of its was required." Somewhat the same line was adopted by the Saurashtra High Court in Patel Kana Kachra v. Jadeja Bhikhubha Pathubha AIR 1953 Sau.

195. Following Gooderham as decided by the Privy Council (cited supra) it was held that a repeal effected by a temporary legislation is only a temporary repeal and with the expiration of the temporary repealing enactment the original legislation would automatically resume its full force. As such. no re‑enactment thereof would be required. Some divergence from this principle has been noticed in some other cases.. In Union of India v. R.C. Jall of Indore AIR 1958 Madhya Pradesh 425 a Division Bench of the Madhya Pradesh took a contrary view. In this case it was held that the repeal or expiry of a repealing Act would not ipso facto revive anything repealed thereby. Accordingly, when the Coal Production Fund (Coal Production Fund Repealing Fund) Ordinance (VI of 1947) expired through efflux of time, the Coal Production Fund Ordinance (39 of 1944), which was repealed by it, was not ipso fact revived. In coming to this conclusion the Court was of the view that a temporary Act could either repeal a perpetual Act absolutely or only partially. If the intention is to repeal the perpetual Act absolutely; then the repeal operates notwithstanding the fact that it is done by a temporary Act; but if the repeal is not entitled to operate absolutely, then it may operate only partially, and this would always be a question of the intention of the Parliament which would have to be gathered from the plain meaning of the repealing enactment. The conclusions of the Madhya Pradesh High Court in R.C. Jall were endorsed by the Supreme Court in. R.C. Jall v. Union of India AIR 1962 SC 1281. Similar line of reasoning as taken in Union of India v. R.C. Jall (cited supra) was taken by the Indian Supreme Court in State Supreme Court in State of Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945 (being an appeal from a judgment of the Orissa High Court reported in AIR 1960 Orissa

46. In this case the Municipal Elections were invalidated through an order of Court in view whereof the Orissa Municipal Election Validation Ordinance (I of 1959) was promulgated so as to provide validity to the elections. The Ordinance lapsed and it was contended that the invalidity cured by the said Ordinance stood revived. The Supreme Court of India repelled this contention and observed that the rights created by the Ordinance were of permanent nature and lasted even after the expiry of the Ordinance. The Ordinance itself had provided that the order of the Court declaring the Municipal Elections to be invalid shall be deemed to be and always to have been of no legal effect and said elections were thereby validated. The Supreme Court observed that the intention behind the Ordinance was to provide permanent validity to the Municipal Elections and therefore, upon the lapse of the Ordinance the electoral validity did not stand automatically ,revived. Writing for the Court, Gajendragadkar, J. observed "as regards the effect of the repealing of an earlier Act by a temporary Act, the intention of the temporary Act in repealing the earlier Act will have to be considered, and no general or inflexible rule in this behalf can be laid down" (at page 954). The Indian judgment in Bhupendra Kumar Bose (cited supra) has heavily relied upon Warren v. Windle (1803) 102 ER 576 wherein Ellen Borough, C.J. has observed:‑‑ "A law, though temporary in some of its provisions, may have a permanent operation in other respects. The Statute 26 Geo. 3, c. 108 professes to repeal the statute 19 Geo. 2, c.35, absolutely, though its own provisions, which it substituted in place of its, were to be only temporary." Interestingly speaking, in another case i.e. R. v. Rogers (1809) 103 ER 891, Ellen Borough, C.J. has observed to the following effect:‑‑ "It is a question of construction of every Act professing to repeal of interfere with the provisions of a former law, whether it operates as a total or a partial and temporary repeal." The facts in R. v. Rogers were that section 1 of Statute 46 Geo, 3 repealed the provisions of Statute 42 Geo. 3 and substituted some other provisions. Section 14 of the repealing Act provided that the Act shall continue in force till a certain period. It was held that the Act referred to in .section 14 included whole of the Act and incorporating section 1 with section 14, the repeal expired with the expiry of the Act reviving the operation of the earlier Act.

24. The analysis as aforesaid confirms that the authorities from the Pakistani jurisdiction are very clear on the point. These authorities lay down a general principle of law that where were an Ordinance, being a temporary legislation, having the effect of repealing an earlier permanent enactment, expires, the earlier permanent enactment would automatically stand revived. The position in the American Jurisprudence and also under English Common Law seems to be the same. Even sections 11 and 38 of the English Interpretation Act would not change the scenario at common law in relation to a statute which would expire by efflux of time since the said sections 11 and 38 (which are analogous to our sections 6 and 7 of the General Clauses Act) would only apply to statutes expressly bringing out repeal and not to the ones which would expire by the efflux of time. In India also this would appear to be the general principle. There are some decisions from India which may have created some inroads into this general principle, however, the same should only be regarded as exceptions. There may be an eventuality such as the one in the Bhupendra Kumar Bose case (cited supra) wherein the temporary statute itself had created rights and obligations which would then create vested rights in favour of the individual persons,. since it is settled law that even temporary statutes can create vested right and if there is any authority needed for the proposition it would be the case of Surjan Singh v. East Punjab Government AIR 1957 Ph. 265 at

269. The cases of Bhupendra Kumar Rose and R.C. Jall are cases where, the temporary statutes had created vested rights. In the very beginning of this discussion I have already underscored the fact that the present issue would not have any relevance on rights and obligations created by the repealed enactment since in this case the charge itself was framed well after the expiry of 1998 Ordinance in view whereof the question of rights and obligations incurred by the accused are not relevant here. Section 23 of the 1998 Ordinance provides that the, 1976 Act "is hereby repealed". The said section does not go any further to state that even upon the expiry of the 1998 Ordinance, the 1976 Act would. stand repealed. In striking contrast in the Bhurendra Kumar Bose case the temporary Ordinance validating the Municipal Elections had categorically provided that the validation of the elections shall "always" have no legal effect. In that case the intention of the Legislature was to bring about permanent validation, whereas in the present case, as already pointed out, the said section 23 of the 1998 Ordinance expresses no intention of a permanent repeal of the 1976 Act as further words to the effect that even upon the expiry of the 1998 Ordinance, 1976 Act would stand repealed, are missing.

25. Be that as it may, if the Court, comes to the conclusion that the 1998 Ordinance has permanently repealed the 1976 Act, after the lapse of the former, no law of contempt (except the ones envisaged in the Constitution or some other enactments) would be in the field. This would create .a vacuum presumably not intended by Parliament. In coming to this conclusion I am persuaded by the judgment of the Honourable Supreme Court in Zainab v. Kamal PLD 1990 SC 1051 wherein the Supreme Court has found the Courts to be under an obligation to place suclf construction on statutes which would be beneficial to the widest extent and which would make the legislation operate fairly, justly, equitably and not unreasonably. This was also the fundamental basis of Kamran Industries v. Collector of Customs PLD 1996 Kar.

68. In matters of construction and interpretation of statutes the Supreme Court has recognized the duty of the Court to save rather than destroy legislation (see Province of East Pakistan v. Sirajul Haque Patwari PLD 1966 SC 854 followed in Multiline Associate v. Ardeshir Cowasjee PLD 1995 SC 423; this aspect of Multiline has not been overruled by the Supreme Court in Ardeshir Cowasjee and others v. K.B.C.A. and others Civil Appeal No.1888 of 1996 dated 10‑5‑1999 unreported). The law of contempt is essential to protect Judges from insult, violence and scandal. Laws of contempt ensure a smooth functioning of judicial system and the judiciary. Recently, the Supreme Court in Masroor Ahsan v. Aredshir Cowasjee PLD 1998 SC 823 has stressed the desirability of laws of contempt when it was pleased to observe that the object behind contempt proceedings was not to afford protection to the Judges personally from imputations to which they may be exposed as individuals, but the same was intended to be a protection to the public whose interest would be very much affected if by the act, or conduct of any party, the authority of the Court is lowered and the sense of confidence which the people may have in the administration of justice by it is weakened (see p.1091 ZZ). A legal system without the law of contempt would have the tendency of creating chaos and malfunction in a proper dispensation of justice. This cannot be the intention of the Legislature. The laws of contempt can be C traced to times immemorial. in any civilized country and in this respect reference is invited to Arlidge, Eady and Smith on Contempt, 1999 Edition, page 1, which reads as follows:‑‑ "A. Early contempts: hindrance or obstruction: From earliest legal history the Courts have assumed the power to coerce those who obstruct the e administration of justice. The authors of Glanvill, writing in the late part of the twelfth century, refer on several occasions to contemptus curiae, by which they seem to mean the contempt shown by ,a party to a suit who fails to appear before the Court. They say, of an action concerning a freeh9ld, that if the Demandant and Tenant are both absent the King or his justices may at their pleasure punish both parties, the one for his contempt of Court and the other for his false claim. Braotion, writing in the middle of the thirteenth century, though there was `no greater crime than Contempt and Disobedience, for all persons within the Realm ought to be obedient to the King and within his Peace. Certainly from about 1250 onwards, the Rolls and Year Books contain references to contempt of Court. These usually relate to some disturbance or hostile reaction in or near the Court affecting its business, or to some violent or insulting reaction to service of the Court's process. It was also recognized as a contempt to draw a sword to strike a Judge, or to assault in open Court the Attorney‑General one of the King's clerks, a juror, a witness, or an opposing party. It seems, however, that the element of assault was not regarded as essential, for sometimes, it was simply alleged that the contemnor had hindered proceedings in Court. Moreover, the relevant act did not necessarily have to be committed actually in the presence of the Court, though in the few relevant cases the conduct was treated as constructively in the presence of the Court. So it was held td be a contempt to assault a person connected with the business of the Court in its immediate precincts, for example in Westminster Hall. Similarly, an assault on a litigant or an officer of the Court on the way to Court. This is an early instance of the principle enunciated by Bowen L.J. in Re: Johnson that‑ `those who have duties to discharge in a Court of Justice are protected by the law, and shielded on their way to the discharge of such duties, while discharging them, and on their return therefrom, in order that such persons may safely have resort to Courts, of justice'. In 1317 a clerk of the King's Court brought an action for an assault on him when coming from Fleet Street to transact the business of the King. Again, however, the assault was alleged to have occurred in the presence of the Court. In 1365 an assault on a man before the gates of Winchester Castle as he was coming to the Court to prosecute an assize of novel disseisin was alleged to have occurred in the presence of the justices. No such artifice appears to have been necessary when the offence complained of was resistance to the execution of a writ. Such an act would clearly be an interference with the business of the Court." In view of the above discussion I am of the considered view that after the lapse of the 1998 Ordinance, the 1976 Act holds the field and has automatically revived. In this manner, the objection of the accused on this score is repelled and the charge framed under section 3 read with section 4 of the 1976. Act is found to be valid. Accordingly, the jurisdictional objection in relation to the present proceedings is found to be devoid of any merit.

26. With regard to the objection regarding the bar of jurisdiction under section 6 of the 1976 Act, the law seems settled, section 6 of the 1976 Act is in para materia with section 2(3) of the Contempt of Courts Act. 1926 (hereafter: "the 1926 Act"). Before elaborating upon this aspect it will be both pertinent and convenient to reproduce the two provisions:‑‑ Section 6 of the Contempt of Courts Act, 1976: "

6. Bars to taking cognizance.‑‑‑ (1) No High Court shall take cognizance under this 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, 1860 (Act XLV of 1860)." Section 2(3) of the Contempt of Courts Act, 1926: . "

2. Power of superior Courts to punish contempt of Courts.‑‑‑ [(3) No High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Pakistan Penal Code.]" . The Federal Court in Abdur Rasheed v. Mehr Falak Sher PLD 1955 FC 198 has held that the bar contained in section 2(3) of the 1926 Act would only come into operation where the Act in question constitutes an offence of contempt of ‑ Court under the Penal Code. The Federal Court has categorically held that the bar contained in section 2(3) would not apply where the action in question may constitute an offence under the Penal Code but not an offence of contempt of Court thereunder. The same line of reasoning has been adopted by the Lahore High Court in the State v. Abdul Aziz PLD 1962 Lah.

335. These two judgments have been cited with approval by a Single Judge of this Court in Syed Saghir Ahmed Naqvi v. Ziauddin 1999 PCr.LJ 72 repelling the same objection as raised here touching upon the bar of jurisdiction contained under section 6 of the 1976 Act and section 228 of the P.P.C. (n this case it was held that the Act in question may constitute an, offence punishable under section 228 of the P.P.C., however, since the said section 228 did not prescribe an offence of contempt of Court, the bar contained under section 6 was inapplicable. I see no reason to differ from this settled law which in any event is binding on me in view of the authoritative findings of the Federal Court in Abdul Rasheed (cited supra). Accordingly, the second legal objection raised by the accused is found to have no force.

27. The third legal objection' raised by the learned counsel for the accused is to the effect that under section 16 of West Pakistan Family Courts Ordinance, 1964 the Family Court has ample power to punish any contemner and as such the present proceedings are unjustified. This argument dwells upon a fallacy. Section 16 of the 1964 Act no doubt empowers the Family Court to punish a contemner, however, the same does not exclude the proceedings which are in the form of cognizance under the 1976 Act. The bar contained under section 6 of the 1976 Act is in relation to offence which may constitute a contempt of Court under the P.P.C. and cannot be extended by any analogy to include the Family Courts Act, 1964. As such the third legal objection is also found to be not in order and is hence rejected.

28. The learned counsel for the accused has submitted written synopsis alongwith a list of cases on the point of jurisdiction as also on assertion and corroboration. The references on jurisdiction are:‑‑ (a) Javed Malik v. State 1998 MLD 1400 on point that objections with regard to jurisdiction of the Court being important and fundamental can be raised at any stage of the proceedings even if the same were not raised before the lower forum.. (b) Muhammad Saleem v. Altaf Hussain 1998 CLC 1883 wherein it, has been held that the objections as to jurisdiction of the Court/Tribunal are to be decided as a preliminary issue before passing any order; (c) "PLD 1998 page 1738 B reference"‑‑ This citation is not traceable as it does not give the name of the Court to which it pertains i.e. the citation is incomplete. (d) PLD 1995 SC 450‑‑‑ There appears to be some mistake as no judgment commences at page 450. (e) Ramdas v. Bernadat‑PLD 1998 Kar. 48 wherein it has been held that the Court must decide the issue of jurisdiction and then proceed further with the case; where Court having no jurisdiction proceeds with the matter, the entire proceedings would be illegal and without jurisdiction. There is no cavil with the above decisions and the principles of law stated therein. In the present judgment I have looked into the objections of jurisdiction raised by the accused and as such have given findings thereon. At this stage it is also pointed out that M.A. 923 of 1999 had been moved by the accused raising these jurisdictional objections which have been discussed above. As the objections have been rejected M.A. 923 of .1999 is also dismissed.

29. With regard to "assertion" and "corroboration" the learned counsel for the accused has relied upon the following list of cases:‑‑ (a) 1998 SCMR 857‑‑‑ There appears to be some mistake once again as no judgment commences at page 857. (b) Muhammad Younas v. State ‑1992 SCMR 1592 pertaining to section 300 of the Penal Code wherein it has been observed that where two versions of the occurrence emerge the one favourable to the defence is to be preferred, if the same gets some support from the admitted facts and circumstances of the case and appeals to common sense. (c) 1990 PCr.LJ 1738‑‑‑ No case commences on this page and there appears to be some typographical error; (d) Shahnaz Bibi v. Muhammad Akram 1995 PCr.LJ 307 pertaining to custody of a minor in an habeas corpus petition, wherein it has been held that where an agreement is entered into by a female which on the face appears to be unconscionable there is a rebuttable presumption that the same was entered into by coercion and undue influence. (e) PLD 1962 page 335‑‑‑ This appears to be incorrect as the Court therein has not been mentioned. (f) 1998 SCMR 2265 wherein the Supreme Court agreed that a show‑cause notice is to be issued to persons who were prima facie involved in the acts of storming the Supreme Court. (g) Amir Abdullah v. State 1980 SCMR 51 pertaining 'to sifting of evidence in a murder of case wherein that Court in setting aside the conviction was persuaded by many factors including the fact that the witnesses were not mentioned in the F.I.R. (h) Mazhar Mir v. State 1991 PCr. LJ 454 wherein it was held that the version of interested eye‑witnesses who were interrelated could not be relied upon unless their evidence was further corroborated by some other evidence. (i) Sakhi Muhammad v: Muhammad Nasir Bashir 1999 CLC 454 for the point that where a testimony went unrebutted in cross examination it was deemed to have been admitted by the opposite side. (j) Sp. Azad Jammu Kashmir page 130 this. appears to be an incorrect citation. (k) Muhammad Murtaza Qazi v. University of Sindh PLD 1960 Kar. 500 wherein it was held that reasonable time for submitting reply to a show‑cause notice should be given and refusal to allow inspection of documents would result in an order of dismissal being vitiated. (1) PLD 1960 Kar. 800 no case commences at this page. Note.‑‑‑ For the above two citations the list provided by the counsel for the accused states that the citations pertains to eye‑witness not being named in the F.I.R. However the law reports do not substantiate this. (m) Jan Muhammad v. Abdur Rehman 1998 CLC 266 wherein it has been held that unchallenged portion of the testimony amounts to admission by the other side. (n) Muhammad Din v. State PLD 1959 SC 491 wherein it has been held that it was dangerous to act upon an evidence of an eye witness who was not mentioned in the F.I.R.

30. The above judgments do not in any manner support the case of the accused in the given facts and circumstances of the matter. The judgments with regard to non‑mention of names of eye‑witnesses in the F.I.R. would hardly be relevant in this matter of contempt of Court where no F.I.R. has been lodged. Apart from this in the complaint made the complainant to the Registrar of this Court dated 20‑10‑1997 appearing as Exh.3/A, the name of Muzaffar Zaidi, the reader, and star-witness in this case is very much present. In any event the facts in they figments relied upon are completely distinguishable to the matter a, hand.

31. In the present case the accused has testified that she was gestured Muzaffar Zaidi, the acting reader, to follow him to the chamber of they complainant. In the cross‑examination this aspect has been denied. In the testimony of Muzaffar Zaidi it has been stated that he never gestured to accused to follow him in the chamber. This aspect of Muzaffa Zaidi's testimony has gone unrebutted which categorically confirms, on the strength of the judgments relied upon by the accused herself i.e. Jan Muhammad and Sakhi Muhammad (cited supra), that the accused was not iced or gestured by Muzaffar Zaidi to enter the chambers and accordingly it stands established that the accused had entered the chambers of the complainant without obtaining her permission. In the cross‑examination to Mr. Habib Ahmed learned A. A.‑G. the accused has sited that "it is legal and moral duty of any Advocate or party and litigant public to enter into the chamber of the Judge with prior Mission". The accused has tried to argue that no permission is required to enter the chambers since chambers are the part of the Court. this respect reliance is 'placed upon the definition of "Chambers" as reproduced herinbelow:‑‑- (i) The Oxford Companion to Law: by David M. Walker, p.200 (Clarendon Press Oxford, 1980). "Chambers. The private rooms of a lawyer .............................. The term is also applied to a Judge's private room adjacent to the Court‑room. Certain kinds of business may be, or are directed to be, dealt with in chambers and accordingly in private and less formally than in Court. The term given also to the rooms in which the Masters of the Supreme Court sit to dispose of business which does not need to be dealt with in open Court." (ii) The Law of Contempt, p.341 (Third Edn.) By Negal Lowe and Brenda Sufrin (Butterworths London, 1996) It is clear from Re Johnson (1987) 20 QBD 68 that a Judge sitting in chambers is acting judicially just the same as if he is sitting in Court. (iii) Words and Phrases (Permanent Edition), Vol. 6A, pp.140 and 141 (St.. Paul, Minn. West Publishing Co.) "Chambers" is a place in which a Judge holds hearings, makes orders, signs papers and does other business pertaining to his office as Judge of his District, when he is not holding a session of Court. In re Verdigris Conservancy Dist. 280 0.966, 968, 131 Kan:

214. The term "Chamber" is defined as the office or private rooms of a Judge, where parties are heard, and orders made in matters not requiring to be brought before the full Court; and where costs are taxes, judgments signed, and similar business transacted. Morehead v. Alien. 63 S.E. 507. 510. 131 Ga.

807. As used in Const. Art: 6, 15 Gen. St. 1894, 824 (M.S.A. 489, 01 489 02) relating to the power and jurisdiction of a Judge at chambers the word "Chambers" means the private room or office of a Judge, where for the convenience of parties he hears matters and transacts business which do not require a hearing by the Judge as a Court. Hoskins v. Baxters. 66 N.W. 969, 970. 64 Minn.

226. The "Chambers" of a Judge means the office of private room of a Judge where parties are heard and orders made and other business transacted in matters which are not required to be done in open Court. The chambers of a Judge of the District Court, when performing judicial acts in connection with the Court of that District, must be in that District, Kirby v. Chicago, R.1 & P. Ry. Co. 116 P.150, 151, 51 Colo 82, citing Rap. & L. Law Dict. Bouvier. The Judge's Chambers is defined as a private room of a Judge: the private room or office of a Judge, where for the convenience of parties, he hears such matters and transacts such business as a Judge in vacation is authorized to hear, and which do require a hearing by the Judge sitting as a Court; the office are private rooms of a Judge where parties are heard and orders made in matters not required to be brought before the full Court. Atchison T. & S.F. Rv. Co. v. Long 251 P.486 491, 122 Okl. 86. "Chambers" is the private room or office of the Judge; any place in which a Judge hears motions, signs papers, and does other business pertaining to his office when he is not holding a session of Court, Business so transacted is said to be done 'in chambers', and not in open Court, and power given to the Judge of a Court, as contradistinguished from the Court itself, may be exercised in Chambers or in vacation. Chapman v. Chattooga Oil Mills Co. 96 S.E. 579, 580, 22 Ga. App.

446. All business done out of Court by the Judge is called chamber business. But it is not necessary to be' done in what is usually called "Chambers". Chamber business may be done and often is done on the street in the Judge's own house, at the hotel where he stops, when absents from home, or it may be done in transit on the ears in going from one place to another, within the proper jurisdiction to hold Court. National Salt Co. v. United Salt Co. 11 Ohio Dee. 348, 354, 8 Ohio N.P.325. Notwithstanding Judicial Code 53, 28, U.S.C.A. 1393, 1441, providing that removal of a suit from the State Court shall be to the United States District Court in the division in which is situated the country from which removal is made a writ of error to review a judgment rendered in such action granted by the Judge 'in Chambers' which are considered to be where the Judge is and is authorized to be engaged in performing his judicial duties, will not be dismissed because allowed in a division other than that in which is situated the county from which the action was removed. Wheeler v. Taft. C.C.A. La. 261 F. 978. 980. "At Chambers", as used in Const. Art. 18 providing that Judges of the several Courts shall have such power and jurisdiction "at chambers" as may be directed by law, is to be understood in its ordinary sense. The phrase 'at chambers" is a technical one. The term "chambers" is thus defined by Burrill: "the office or private room of a Judge where parties are heard and orders made in matters not requiring to be brought before the full Court and where costs are taxed, and similar business transacted". Bouvier says, when a Judge decides some interlocutory matter, which has arisen in the course of the case out of Court, he is said to make such decision at his chambers". Pittsburgh, Ft. W. & O.R. Co. v. Hurd. 1 / Ohio St. 144,

146. The term "chambers" is thus defined: "The office or private rooms of a Judge where parties are heard and orders ‑made in matters not requiring to be brought before the full Court, and where costs are taxed, judgments signed and similar business transacted; and thus, when a Judge decides some interlocutory matter, which has arisen in the course of the cause, out of Court, he is said to make such decision at his chambers. Under Const. Arts.4 and 18 providing that the several Judges of the Supreme Court shall have and exercise such power and jurisdiction, at chambers or otherwise as may be directed by law, the General Assembly cannot confer on a Judge of that Court jurisdiction at chambers to grant or dissolve an injunction in a cause pending in another Court. Pittsburgh Ft. W&CR Co v. Hurd. 17 Ohio St. 144, 146 quoting and adopting the definitions in Bur. Law Dict. and Bouvier's Law Dict. "Orders are often passed in Chamber and chambers proceedings had between the beginning of a term of Court and its adjournment. Thus application for interlocutory injunctions, the appointment of ad interim receiver, and the like take place ac chambers, although during term of Court. Nor does the fact that the proceedings were entered on the minutes fixed their status as having transpired in open Court. Orders granted in vacation may likewise appear on the minutes. *** When an order appears in the transcript of the record which could be regularly and properly granted by the superior Court in term time only, and there is nothing to show that it was in fact granted at chambers or in vacation, the presumption is that it was granted in terms", Morehead v. Allen, 56 S.E: 745, 747, 748, 127 Ga. 669, citing Civ. Code 1805 and 3172, 4864, Mc.Gowan v. Lufborrow, 9 S_E. 427, 82, Ga. 523, 14 Am. St. Rep. 178; Skinner v. Roberts. 17 S.E. 353, 92 Ga.

366. Formerly in England there were four terms of Court in each year; and their duration was so fixed that there were only 91 days in each year during which Courts could be in session, and there consequently grew up a practice of hearing many matters out of Court, with the same effect as if held while the Court was in session. At a later day the practice arose of disposing of such matters at certain hours during term time when the Court was not in formal session and subsequently certain hours of each day were fixed in which one of the Judges would hear these matters while the Court was actually in session. The motions and orders thus made were said to be held and disposed of at his "chambers" than in the Court‑room, but the terms "chambers" became extended so as to include any place, either in or out of the Court‑room, at which a Judge might hear allegations or make orders, while the Court is not in session, in matters pending in that Court. Von Schmidt v. Widber, 34 P.109, 110, 99 Cal.

511. Chambers "are places in which the work of the Judges out of Court is performed and do not have any local habitation. All business done out of Court by the Judge is called "chamber business", but it is not necessary to be done in what is usually called "chambers". The chambers of the Judge, where chambers are provided are not an element of jurisdiction but are a convenience to the Judge and to suitors‑‑‑Places where the Judge at proper times can be readily found and business conveniently transacted: but the chambers of the Judge, as a legal entity, are something of a myth. For the purposes of jurisdiction the chambers of the Judge are wherever he happens to be in his circuit or District when the exigencies of the case call for the transaction of chamber business. The Justices of the Supreme Court at Washington have in fact no chambers, as they study and do their work out of Court, at a room in their own residences. In some courthouses there are rooms that are called "chambers" in which the work of the Judges out of Court is in part performed." In re: Neagle, 30 F. 833. 855. 5 LRA

78. The above definitions hardly support the case of accused that no permission is required to enter the Judge's chamber since it is part of the Court‑room. These definitions, inter alia, confirms that a Judge could hear cases in the chambers which are not taken up in Court. On the contrary, I have been able to lay my hands on an order of the Honourable Supreme Court in Criminal Miscellaneous No. 19‑K of 1994 decided on 30‑8‑1995 * wherein some members of the Bar were suspended from practice on account of entering the chambers of the Chief Justice of Pakistan without permission. This order was subsequently, reviewed in view of the apology offered by the members of the Bar. The review order is reported as Muhammad Alyas Khan v. Asad Ali Bilgrami 1997 SCMR

569. These orders of the Supreme Court are a short answer to the accused's contentions that chambers are a part of the Court and no permission is required to enter the same. Also in the Islamic judicial history one can find mention of Judges (Qadis) retiring in their chambers, which were not regarded as part of the Court‑room and the Qadis used to. inter alia, offer two or four Raka'ts of Nafl prayers in their chambers seeking from Allah wisdom and courage in administering justice, before entering into the open Court to conduct judicial work. Thus in the judicial systems of all civilized societies there used to be chambers for Judges/Qadis alongwith the Court‑rooms where they used to do the chamber work. (See Judicial System of Islam by Ghulam Murtaza Azad, Islamic Research Institution International Islamic University, Islamabad (1st Edn., 1987), Al‑Wawardi (d. 450 A.H.) A1 Ahkam al‑Sultaniyah, Cairo 1298 A.H., translated in Urdu by Mufti Intizamullah Shahabi, Karachi N.D. Al‑Marghinani (d.593 A.H.), Hidaya, English translation by Charles Hamilton, Lahore 1957 A.D. 334; Arif al Kindi, Al‑Qada `fi'1 Islam, Damsacus, 1361 A.H. 6; Justice (Rtd.) Dr. Tanzil‑ur‑Rehman, Islamic Nizam‑a‑Adalat, Karachi, 1978 and Islamic Code for a Judge, Dawn 15th October, 1999; Badai‑us‑Sanai by Allama Abu Bakar Allauddin Al‑Kasani, Urdu translation by Professor Khan Muhammad Chawla‑‑‑Dayal Singh Trust Liberary, Lahore. Hence the contention of the accused is rejected and it is held that Judge's chambers is not part of a Court‑room and lawyers or members of the public should not enter the chambers till such time prior permission is sought. Entering the Judge's chambers without permission by itself constitutes a contempt of Court. It would not be out of place to quote here Article 14 of the Constitution which provides for a right of privacy. The chambers would be private premises for the Judges and this would also be in keeping with the provisions of Article 14 of the Constitution.

33. Rule 10 of the Sindh Civil Courts Rules provides that cases are to be conducted in open Court till such time proceedings in camera are required to be held in the public interest. This hardly forwards the case of the accused.

34. Amongst the witnesses who deposed on behalf of the accused the testimonies of Ms. Shahana Farid and Ch. Muhammad Aslam stand shattered in their cross‑examination. Ms. Shahana Farid has alleged to be present in the District Courts to find about the progress of her cases fixed therein. However, in the cross‑examination she has admitted that no case. of her's on the day of the incident was fixed in the District Courts and she had only gone there to do miscellaneous work. Mr. Ch. Muhammad Aslam in his examination‑in‑chief has stated that he had gone to the District Courts on the day of the incident to file a suit. However, in the cross‑examination he has stated that no case was filed by him that "day due to quarrel and commotion and the case bearing No.600 of 1997 was filed by him after lapse of 15 or 16 days. In the cross‑examination he has further stated that the complainant had not directed her gun man to shoot the accused. If Mr. Ch. Aslam was present in the District Courts to file a suit and could not do so on account of quarrel and commotion, he could have filed the said case on the following day. The lapse of 15 or 16 days cannot be explained. The testimonies of Ms. Shahana Farid and Ch. Muhammad Aslam being inconsistent and unworthy of credit cannot be relied upon and are hence rejected in view of the infirmities discussed above. The other witnesses produced by the defence are not witnesses to the incident and accordingly their testimonies are found to be irrelevant. From the side of the prosecution the testimony of Ms. Kausar Sultana is also found to be irrelevant as she is not an eye‑witness of the incident. However, the testimonies of Ms. Asma Memon and Muzaffar Zaidi, the eye‑witnesses of the event are unassailable. The accused has also unjustifiably kept the call bell and other stationery items of the complainant's chamber.

35. All the above and the testimonies on record fully establish beyond any shadow of doubt that the accused had entered the complainant's chambers without her permission and thereafter abused and misbehaved with her, while creating a scene there. She had also pulled the blazer cloth of the table. The accused has herself stated in her testimony that she tried to remove the blazer cloth lying on the Judge's table.

36. In view of the above, I find the accused guilty and convict her as charged. According to the accused herself, she has a standing of 20 years at the Bar. However, keeping the dictates of justice in mind, a lenient view regarding the sentence is taken as the accused is a female and sick. I accordingly sentence her to remain in the Court till its rising today; additionally a fine of Rs.5,000 is imposed in default whereof she shall undergo simple imprisonment of one week at the Women's Prison, Larkana. The fine should be deposited with the Nazir of this Court within a week. The accused is also debarred from practice in this Court and in the subordinate Courts for a period of six months commencing from today. The prosecution has also proved that the accused took away call bell and table calendar unauthorizedly and illegally from the chamber of the learned Judge. She is directed to immediately return these two articles to the learned Judge within two days failing which, the learned Judge would be competent to take further action against the accused according to law including filing a complaint with the police. N.H.Q./N‑109/K Order accordingly.