P L D 1978 Lahore 361 (PLP)

GHULAM MUJADDID MIRZA, J.

This judgment shall dispose of Inter--Court Appeal No. 1 of 1977, filed by Syed Aftab Ejaz Sub-inspector and Inter-Court Appeal No. 2 of 1977, filed by Khalid Latif Cheema Sub-Inspector and two other police officers. Both the appeals are directed against the order dated 27-7-1977, passed by a learned Judge of this Court in contempt proceedings, whereby the appellants had been convicted under section 3 of the Contempt of Court Act, 1976. Khalid Latif Cheema was sentenced to three months simple imprisonment while the other three appellants to two months each.

2. Although the facts had been stated in detail in the impugned order, nevertheless, it is necessary to recapitulate the same in order to determine the point raised in these appeals which pertains to quantum of sentence only. Iftikhar Ahmad Tari was elected as Member of tire Provincial Assembly on the Pakistan People's Party ticket. He was included in the Provincial Cabinet as one of the ministers which office he enjoyed for about two years. Later on, on account of certain political differences with the High Command he reigned from the Pakistan People's Party and became an active supporter of Ghulam Mustafa Khar, an ex-Governor and ex-Chief Minister of the Province of the Punjab, who had also left the Pakistan People's Party. Ghulam Mustafa Khar was contesting election for the Provincial Assembly seat as an independent candidate from Constituency No. 6, Lahore. Iftikhar Ahmad Taxi era account of his being an active supporter of Ghulam Mustafa Khar apprehended arrest in criminal cases. He, therefore, approached this Court for bail before arrest by means of Criminal Miscellaneous No. 4087-B-75. Bail was allowed to him by order dated 26-9-1975 and the Advocate-General was directed to file a list of cases registered against him.

3. Iftikhar Ahmad Tari filed another application (Criminal Miscellaneous No. 4280-B-75) alongwith seven others, for bail before arrest. All of them of ere admitted to ad Interim bail on 6-10-1975, which was ultimately confirmed on 30-10-1975. Yet a third application (Cr. Misc. No. 4278-B-75) for anticipatory bail was filed on behalf of Iftikhar Ahmad Tari alone. This too was allowed on 7.10-1975, with the following order:

"The petitioner shall not be arrested or detained in any case, preventive or penal, if it is punishable with imprisonment (net death) subject to his furnishing security in the sum of rupees ten thousand with two sureties in the like amount to the satisfaction of Deputy Registrar Lahore, upto 6 p.m. today. Notice to Advocate-General who shall place on record a list of eases/ matters in which the detention of the petitioner is sought."

4. After the aforesaid three applications, Muhammad Iftikhar Ali Sheikh any? Muhammad Ifzaal Ali Sheikh (hereinafter referred to as the petitioners) filed Constitutional Petition No. 2491 of 1975, in this Court, wherein it was alleged that although Iftikhar Ahmad Teri (hereinafter called the detenu) was admitted to bail by this Court, nevertheless on the afternoon of 6th October 1975, the appellants alongwith some police force came to arrest the detenu. The police party was told that the detenu bad been admitted to bail by this Court. They, therefore, went back. A second attempt was made by them at night at the residence of the detenu but as he was not there, he escaped arrest. Finally when the detenu was in the house of the petitioners, the appellants alongwith police force raided their house. The detenu protested against this and so did the petitioners. The appellants were told that the detenu had been admitted to bail both under the Penal as well as Preventive Detention Laws by the High Court, nevertheless he was arrested and taken away.

5. Notice in the aforeaid petition was issued on 9-10-1975 and it was ordered that the detenu should be produced on 13-10-1975. On that day the detenu was not produced and the Assistant Advocate-General, who entered appearance on behalf of the State, requested for time to file the affidavit of the Home Secretary with regard to the arrest and detention of the detenu. Counsel for the petitioners also made a request to amend the petition by adding the Government of Pakistan as one of the respondents apprehending that the detention might have been under the orders of the Federal Government. Later on affidavit of the Deputy Secretary (G), Home Department was fled in which it was stated that "the alleged detenu was not arrested by the police rind he is not in the custody of the Provincial Government". Counsel for the petitioners then placed on record an affidavit of Raja Muhammad Azad Khan, Lawyer of Bagh, District Poonch (Azad Kashmir) in which he deposed that the detenu was in Dulsi Camp, District Musaffarabad. The learned Judge then sent for the appellants and recorded their statements on 12-11-i 975. in which they denied to have any connection with the arrest and detention of the detenu. On the following day the statements of the petitioners were recorded, the case was adjourned for arguments for 18-11-1975 and the order was reserved on 19-11-1975.

6. After the order was reserved two Miscellaneous Applications Nos. 6723 of 1975 and 425 of 1976 were filed on 8th December 197'5 and 29th January 1976, respectively, in the constitutional petition In the former application it was categorically stated that the detenu was being detained in Dulai Camp in Azad Kashmir and even names of certain officers, who had been posted in Dulai Camp to guard the detenu, were mentioned in the said petition. The Deputy Attorney-General filed reply of the said application on 23-12-1975, on behalf of the Federal Government, in which it was stated that none of the officers mentioned in the said petition was ever posted in Dula) Camp or ever entrusted with the custody of the alleged detenu. In the latter application it was prayed that the former application be allowed to be withdrawn. The same was disposed of on 30-1-1976, by means of the following order :

"Petition is allowed. In view of the request having been withdrawn the petition will be awaiting orders."

7. On 16-3-1976, the learned Judge by means of a detailed interim order in the constitutional petition observed that the best course was to keep the constitutional petition as well as Criminal Original No. 81 of 1975, which had been filed simultaneously with the constitutions' petition, pending and a direction was issued to the Inspector-General of Police for getting a case registered against the appellants and other police officers. It was further observed:- "It shall be open to the parties to seek revival of these proceedings at any stage when they think that further consideration can be given to the matters agitated by there petitions."

8. Reference be also made here to Criminal Original No. 60-yV-76, filed by Iftikhar Ali Sheikh under Article 204 ref the Constitution of the Islamic Republic of Pakistan, against the Inspector-General of Police, Punjab. Lahore, in which it was alleged that the directions given by the learned Judge hart been wilfully disobyed by trim, he may, therefore, be proceeded against. A report was celled for in this petition. In the report the Inspector-General of Police submitted that the orders passed by the learned Judge in Chamb5rs had beer: duly comp3ed wish and a case- under section 365/345/149, P. P. C. had been registered against the appellants at Police Station New Anarkali, on 19-4-1976, vide F. I. R. No.

205. As the orders of this Court had been complied with, no further action was taken in the aforesaid petition.

9. Proceedings also continued in Criminal Original No. 81 of 1975. in which statements of the appellants were recorded by the learned Judge in Chambers. All of them denied to have taken part in the arrest o' the detenu. Counsel for the petitioners in the criminal original then filed the affidavits of Subail Ali Nasir-ud-Din Qureshi and others and requested that proceedings in the Constitutional petition be taken up on the basis of these affidavits. The learned Judge then issued notice to the appellants and directed them to bring the roznamchas of their respective police stations for the week from 5th to 11th October 1975, and recorded their statements in which they denied to have arrested the detenu. However, on 12-11-1975, the following order was passed : "To come up for proceedings in writ petition."

10. Nothing happened till 9-7-1977, when on the said day, proceedings in Criminal Original No. 81 of 1975, were revived, because from the press reports it appeared that the detenu had appeared in public. The learned Judge, therefore, sue moru issued notice to Iftikhar Ali Sheikh and Muhammad Ifzaal Ali Sheikh, as well as the dotenu.

11. On 13th July 1977, the detenu alongwith the petitioners appeared before the learned Judge. As his statement was to be recorded the detenu was cautioned and was told that he was to be examined in proceedings against the police officers and in case he made a false statement on oath then he would be responsible for its consequences. After these formalities had been complied with the detenu was administered oath and his statement was recorded.

12. Although the learned Judge has mentioned the points made out from the statement of the detenu, nevertheless, it is necessary to reproduce verbatim, the relevant portion of his statement ;

"I continued to harbour a fear even after the bail that I might be attacked at my house and it was for this reason that on the night of the day on which I was admitted to bail I slept at the house of Afzaal Shiekh, who is my friend and Iftikhar Ali Sheikh who is his brother. I was asleep on the roof of the house when at about midnight I heard noise below. I came to the round-floor. I found in the dining room four police officers alongwith a police party. They were talking to the inmates of the house. Aftab Shah, S. H. O. Gulberg, City Inspector, Khalid Cheema, Samad Shah S. H. O. Tibbi and Nawaz Cheema of Ichhra appeared. I am not aware of the names of the constables accompanying these police officers. Khalid Cheema informed me that he wanted to arrest me. I told him about ire bail order of the Court and also showed it to him. All the four police officers re4d that bail order and stated that in spite of it they were helpless to arrest and must arrest ire, They also told that they had instructions from the superiors that I had to be, apprehended dead or alive that very night: I eves also told that if anyone resisted then they will use force against me and the other inmates of the house. I accompanied them.

."

13. From the above statement of the detenu, it became clear that he was arrested by the appellants from the residence of Iftikhsr Ali Sheikh in spite of the bail order of this Court. The learned Judge, therefore, Issued notice to the appellants to allow cause as to why they be not committed.

14. On 25-7-1977, the appellants appeared. They were allowed to read the statement made by the detenu on 13-7-1977 and were also confronted with their earlier statements. They were told that their statements there to be recorded in the course of contempt proceedings in which their position as that of accused sad that is why they were not given any oath. They were further told that they wore neither bound to incriminate themselves nor would they be on such statement tried for perjury. The maxim "cum conjitente sponte mitius est agendum (one confessing willingly should be dealt with more leniently) was also explained to them by the learned Judge. Then their statements were recorded which had been reproduced to extenso in the impugned order. The appellants also filed written statements in which they ten erect unqualified apology and throw themselves at the mercy of the Court. Thereafter taking all these facts into consideration, the learned Judge in Chambers found them guilty of contempt and convicted them accordingly. Hence these two appeals.

15. As the point Involved in both the appeals is the same, i.e., whether the appellants are entitled to further reduction in sentence or not, both the counsel addressed us on this point, therefore, we do not intend to discuss their contention separately.

16. The first point urged by the learned counsel for the appellants was that the appellants had no intention to disobey the order of this Court, but it was due to the "command of their superiors" that they were placed in such an awkward position that they found themselves absolutely helpless. It was further submitted that it was not a command simplicitor but combined with a warning that the arrest of the detenu vas a State secret and was not to be disclosed under any circumstances, otherwise the appellants would have to face very serious consequence. Learned counsel then cited the precedent of one Raja Abdul Axis Sub-Inspector who did not comply with the order of his superiors and was reverted. In such circumstances, learned counsel submitted that the appellants were not "free persons" and as such it was not a case of wilful disobedience. With all the emphasis at their command, both the learned counsel then submitted that there are extenuating circumstances in the present case which justify lesser sentence. They submitted that the appellants had tendered unconditional apology, throw themselves at the mercy of the Court, their apology was genuine and was not a mere legal device to avoid facing the consequences of their blunder. Reference was then made to State v. Muhammad Ashraf Zahid (P L D 1975 Lah. 635) and State v. Qazi Muhammad Tufail (P L D 1977 Lah. 486),. In the former case while considering the question of sentence a lenient view was taken in view of the mitigating circumstances including age, character anti antecedents of the contemner. In the latter case, the contemner was discharged as he had tendered unconditional apology and threw himself at the mercy of the Court. While pleading guilty, he gave an undertaking not to repeat in future the offence for which he was proceeded against. In this case, the learned Judge further observed "that he shall not suffer any departmental disqualification or disability in respect of his service, in any manner whatsoever, in so far this case is concerned." Reliance was also placed on Mujibur Rahman and another v. The State (P L D 1975 S C 484), where apologies were accepted after conviction by the Judges of the High Court at an informal meeting even after conviction, as they were satisfied that the apologies were inspired by feelings of contrition and the anxiety to make amends for their past conduct. At that time the appeal by the contemnors was also pending in the Supreme Court of Pakistan and the same was disposed of by reducing the sentence to one already undergone. Both the learned counsel further submitted that there was no evidence ca the record to show that the appellants knew as to what was going to happen to tine detenu after be had been arrested and produced before the senior police officers. According to the learned counsel this was also an extenuating circumstance to be considered while awarding the sentence to them. Last of all it was submitted that Khalid Latif Cheema is a Graduate. He joined service in 1959 and has put in. 18 years of service by now. Similarly the other appellants have also served the police department for more than a decade. They have been discharging their duties honestly and efficiently. With the exception of this mishap there is noticing against them.

17. Learned Additional Advocate-Genera: supported the order passed by the learned Judge in Chambers. He submitted that this was a fit case where the sentence should be enhanced but as no formal application had been moved by the State, we are rent prepared to consider this aspect of his submission. He further submitted that the pleas of command of the superiors aid that of intention did not provide any defence to what the appellants had done nor could it be taken as extenuating circumstances. It was further submitted that the appellants might have been entitle to some leniency if they would have come out with the truth in the first instance. The gist of the arguments of the learned Additional Advocate-General was that an order of a Court is to be complied with in letter and spirit without any excuse, however good it tray be.

18. It would be a legal folly to define as to what constitute extenuating circumstances, because it would depend upon the facts of each case and for that matter the entire facts shall have to be taken into consideration keeping in view the conduct of the contemner and other relevant circumstances. Different factors under different circumstances like age, good faith and misunderstanding have been consider to be extenuating circumstances. In The State v. Muhsin Tirmizey (P L D 1964 Lah. 434), the respondent vas a District and Sessions Judge and while facing a departmental enquiry, he addressed a latter to the then Chief Secretary to Government of West Pakistan. The letter was forwarded to this Court, for onward transmission to the Enquiry Officer. para. 5 of the letter was found to be objectionable and hence a notice was suet' to the respondent to snow cause why he should not be punished under the Contempt of Courts Act. The respondent was found guilty of contempt. However, while awarding sentence, a Full Bench of this Court observed: "The only question remaining is that of the sentence to be imposed. For an offence of this nature a substantial term of imprisonment would not, in my opinion, be uncalled for, but keeping is view the age of the respondent, I would sentence hire to imprisonment till the rising of the Court and a fine of Rs. 2,000" Similarly in another case of State v. Mir Abdul Qayyum (P L D 1964 Lah. 661). Inamullah, J. (as he then was) who delivered the judgment while dealing with the question of sentence in part. 28 observed as under :-- "The last question that requires consideration is the question of sentence. The imputation against the High Court coming from a senior member of the Bar and with no justification must be dealt with severely. The respondent having pleaded justification, the offence becomes more serious. It is a matter of regret that the respondent did not offer an unconditional apology before Mr. Justice Manzur Qadir when he appeared before him. If he had offered an apology I have no doubt the same would have been accepted by this Court. This Court is most reluctant to take action for contempt of Court. I would, therefore, take a lenient view considering the fact that the respondent being a political worker acted on impulse having been approached by a number of Advocates in the matter of selection of the candidates by the High Court. He had no personal motive. I do not thinly that the respondent sent the offending telegrams in order to safeguard the interest of the son-in-law of his brother-in-law. I would sentence the appellants to a fine of Rs. 100 in default of payment of the same imprisonment till the rising of the Court. Ira case the respondent is riot ready with the fine imposed and asks for time for payment of the same, I would grant him a week's time nor payment of the same in this Court. I would in the circumstances of this case, make no order as to costs. Another important case to be taken note of is Balkishna Narayan Saoji v. Col. N. S. Jatar, Inspector-General of Prisons (A I R 1945 Nag. 33). In this case, the contemner was found guilty of grossest contempt. He even tried to justify his action and the Court while dealing with the question of sentence observed ,as follows :

"We have been treated with scant courtesy, and a statement offensive in tone and temper and reckless in its disregard for truth has been put its after careful deliberation and thought. It is impossible for us to overlook this persistent aggravation of the contempt. It is all the more impossible because of the tendency we have marked of late in more cases than one of attempts to ignore the authority of this Court and trifle with it. It is necessary to make an example. Leniency has been misunderstood in the past and will therefore be misplaced. Forbearance and patience only evoke worse and worse recklessness. We accordingly sentence the Jail Superintendent to a fine of Rs. 250 under section 3, Contempt of Courts Act (Act 12 of 1916) and in default to 14 days simple imprisonment. A far humbler man was sentenced to a fine of Rs. 500 in I L R (1941) Nag. 304, a warning which has passed unheeded and which, after due deliberation, the Jail Superintendent and his advisers have thought fit deliberately to ignore. We refrain from a sentence of imprisonment because its evident that a man in the Jail Superintendent s position would hard have adopted this wholly wrong attitude had he not been encounter in it tacitly or otherwise by those in higher authority." In the case of Fakhre Alarm v. The State (P L D 1973 S C 525), it was observed that "the abject of contempt proceedings is not the vindication of the character or conduct of an individual Judge, but to protect the Court from attack and calumny, so as to keep the fount of justice pure and unsullied, and to maintain public confidence in the ability and power of the Courts to administer justice". It was further observed; "The contemner having thrown himself unconditionally at the mercy of the Court, the contempt stood purged' . Reference in this connection be also made to Ashfaque Ahmad Sheikh v. The State (P L D 1972 S C 39) and Muhammad Warts v. The State (1975 S C M R 106). In the former case, it was observed ; "This Court does not as a rule interfere with the legal sentence passed in the exercise of the ordinary criminal jurisdiction of the High Court, but in the case of contempt of Court lenient view with regard to sentence has been taken by this Court in some cases in the peculiar facts and circumstances of those cases." It was further observed ;- "I think it would be sufficient if the sentence of imprisonment for the period already undergone is maintained and so also the fine of Rs. 1,500 imposed on him. I would, therefore, order him to pay a fine of Rs. 1,500 and, in default, to suffer simple imprisonment for one month." In the latter case it was observed: "The petitioner did throw himself at the mercy of the Court without any demur or qualification and therefore, did show the spirit of manful confession of conscious wrong doing. Such an apology should, in the normal circumstances, have been accepted ; but, since the acceptance of an apology is for the Court before which it has been tendered and not for a Court sitting in appeal, we feel that it would not be proper for us to accept the apology at this stage. But at the same time, we are clearly of the view that the harshness of the sentence should be reduced, as we have the right to do, even in eat appeal against an order convicting a person for contempt." Though the appeal was dismissed but the sentence of fine was reduced from Re. 1,000 to rupee one only.

19. The purpose of contempt proceedings is too well known. No personal consideration weighs with the Judge but it is for the administration of justice which is supreme that the contemner is punished and the purpose of punishment is to make known to all, however low or high he may be, that they have to obey and respect the law without any excuse or exception. The conviction of the appellants establishes beyond any shadow of doubt that no one can flout the order of a Court under any pretext nor can it be made ineffective by mere lapse of time. Reference in this connection be made to section 132 of Corpus Juris, Volume 13, dealing with the abject of punishment for contempt. It reads :

"The law punishes the contemner out of no personal consideration for the Judge, or the litigant, but only when the best ends of justice will be subserved thereby." Note (a) below section 132 Old reads as under ;

"The law punishes the contemner out of no personal consideration for the Judge. The punishment is not meted out as a 'balm to hurt mind'. Nor is there in the law aught of malice against him who is punished. The power is exercised by the Court as the representative in this respect of the people-the ultimate sovereigns-and in their interest and for their good. The maintenance of the authority of the judiciary is indispensable to the stability of the Government."

20. The present case is unique in its nature. The points raised by the learned counsel for the appellants are not free from difficulty but after due consideration we are of the view that the plea of intention, however good it may be, cannot provide defence for flouting the order of the Court, because the order of the Court is to he strictly complied with and its compliance is a matter of strict liability. Same can be said about the command of the superiors and we have no hesitation in rejecting both these pleas as well. The matter does not end here, because we have to examine these pleas from a different angle and that is, as to whether these pleas can be taken into consideration as extenuating circumstances while awarding sentence.

21. In order to determine as to whether there are extenuating circum. stances in the present case, we shall have to go back once again to the starting point, which was when the appellants came face to face with the detenu and the conversation which took place between them. Reference has already been made to the statement of the detenu, nevertheless, the following words are worth reproduction against;

"I told him about the bail order of the Court and also showed it to him. All the four police officers read that bail order and stated that in spite of it they were helpless to arrest and must arrest me. They also told that they had instructions from the superiors that I had to be apprehended dead or alive that very night. . . : '

22. The appellants took the same stand when their statements were recorded by the learned Judge In Chambers. This shows that the position taken up by them before the learned Judge is Chambers was the same as the reply given to the detenu. The appellants are entitled to some credit at least for telling the truth before the learned Judge. Their plea was not an after thought. The appellants admitted their fault on 25-7-1977, when they were not represented. They had no time even for deliberation inter se and made the statements at the spur of moment voluntarily without the aid of legal advice. Two days after they tendered unqualified apology and threw themselves at the mercy of the Court.

23. The fact that the maxim cum confitente sponte mitius eat agendum was explained to the appellants by the learned Judge himself also plays a verb important role. Coming from the lodge it was bound to have an impact on the mind of the appellants that they would be dealt with leniently in the matter of sentence which could be anything from a mere warning to the one till the rising of the Court or even that of fine.

24. All these factors taken together justify lesser sentence. We, there fore, think that the sentence already undergone by the appellants would meet the ends of justice. So while maintaining the conviction of the appellants we order that they shall be released from jail forthwith if not required in any other case. Both the appeals are disposed of accordingly. S. A. H. Sentence reduced.