2005 PLP 613 (MLD)

This criminal appeal has been filed against the judgment dated 27-9-2003 passed by the learned District Judge, Islamabad, whereby the appellant was convicted under section 228, P.P.C. and sentenced to undergo S.I. for three months and a fine Rs.1,000.

2. The facts giving rise to the present appeal are to the effect that one Mst. Snobar Jan had filed an ejectment petition on 7-4-1992 against Mahboob Alam son of Muzaffar Khan with regard to the Shop No.16, Block No.12-D, Jinnah Super Market, Islamabad, which was rented out to him on 16-12-1984 on monthly rental basis and the litigation ended in her favour in the Hon'ble Supreme Court in the year 2003. The execution petition has been filed against the judgment-debtor who was adamant to hand over the possession of the shop in a peaceful manner and the Bailiff of the Court with the Police Assistance of Police Station Kohsar had been unable to get the order of execution implemented. Therefore, she filed an application before the learned District Judge, Islamabad, narrating the whole facts. The learned District Judge summoned the Bailiff of the Court who stated at Bar that the delivery of possession in favour of the ejectment-petitioner could not be effected because of the contumacious conduct of the judgment-debtor, who with the aid and assistance of other members of the locality posed himself as representative of the Market Union. The learned District Judge on the application of the ejectment-petitioner and statement made before him by the Bailiff of the Court had withdrawn the execution petition from the executing Court and transferred the same in his Court for redressal of the grievance of the ejectment-petitioner, who was an old lady. He summoned the S.H.O., Police Station Kohsar who appeared before the learned District Judge, Islamabad, on 27-9-2003 and stated that the judgment-debtor did not care for the order of the Court and with the assistance of the members of the Market Union is not allowing to execute the order of the Court. On the above statement, non-bailable warrants of arrest was issued against Mahboob Alam judgment-debtor and handed over to Qasim Khan S.I. for his arrest.

3. Qasim Khan S.I. produced Mahboob Alam judgment-debtor in the Court of learned District Judge on the same day and when the Court asked him why he was not vacating the shop in dispute despite the orders of the Court, one Jahangir Akhtar appellant claiming himself to be the President of Market Union stepped in and commented upon that "Ziadti" is being made with the judgment-debtor and when indicated to behave properly and not to cause interference in the judicial proceedings, he has displayed with a contumacious conduct. The Court while taking the notice of the attitude of the said Jahangir Akhtar appellant causing obstruction in the proceedings of the Court with an insulting behavior, issued him a notice calling upon him to show cause as to why proceedings under section 228, P.P.C. be not initiated against him. In response to the notice, he submitted his reply and after evaluating the same, the learned District Judge vide his impugned order held the appellant guilty and convicted and sentenced him under section 228, P.P.C. to undergo three months' S.I. with a fine of Rs.1,000.

4. I have heard the learned counsel for the appellant as well as the learned Assistant Advocate-General and perused the record. The appellant has been convicted under section 228, P.P.C. which reads as under:-- "S.228.

Intentional insult or interruption to public servant sitting in judicial proceedings. Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to three thousand rupees, or with both."

5. The Contempt of Court has been defined in section 3 of the Contempt of Court Ordinance, 2003, which is reproduced as under:-- "S.3.

Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey or commits a wilful breach of a valid undertaking given to a Court or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or to disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office or to disturb the order or decorum of a Court, is said to commit "Contempt of Court."

6. The subordinate Courts can punish for committing the Contempt of the Court under section 228, P.P.C., where the contempt was committed on the face of the Court or disobeyed its order or disrespected. The procedure has been provided in the Criminal Procedure Code in certain cases of contempt section 480 of the Code of Criminal Procedure emerges that when any such offence as is described in section 175, section 178, section 179, section 180, or section 228 of the Pakistan Penal Code is committed in the view or presence of any Civil, Criminal or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine not exceeding two hundred rupees; and, in default of payment to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. Section 481, Cr.P.C. further emerges that (1) in every such case the Court shall record the facts constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence and (2) if the offence is under section 228 of the Pakistan Penal Code, the record shall show the nature and stage of the judicial proceedings in which the Court interrupted or insulted was sitting and the nature of the interruption or insult. Section 482, Cr.P.C. further provides that (1) if the Court in any case considers that a person accused of any of the offences referred to in section 480 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding two hundred rupees should be imposed upon him or such Court is for any other reasons of opinion that the case should not be disposed of under section 480, such Court, after recording the facts constituting the offence and the statement of the accused as hereinbefore provided, may forward the case to a Magistrate having jurisdiction to try the same and may require security to be given for the appearance of such accused person before such Magistrate, or if sufficient security is not given shall forward such person in custody to such Magistrate and (2) the Magistrate, to whom any case is forwarded under this section, shall proceed to hear the complaint against the accused person in the manner hereinbefore provided.

7. From the plain reading of the provisions of the above mentioned sections of the Code of Criminal Procedure, it reveals that a specific procedure has been provided in law for punishing a contemnor under section 228, P.P.C. He can be punished under section 480 of the Code of Criminal Procedure till the rising of the Court and to pay a fine not exceeding two hundred and in default of the payment to simple imprisonment for a term which may extend to one month. The procedure provided in section 480, Cr.P.C. is attracted to the cases where the Court in whose view or presence the contempt has been committed or the Court, which has been insulted or the proceedings have been interrupted by the offender.

8. In the instant case, the only allegation against the petitioner is that he unnecessarily started commenting upon the proceedings of the Court that "Ziadti" is being made with the judgment-debtor" and when it indicated to him to behave properly and not to cause interference in the judicial proceedings, he has displayed himself with a contumacious conduct. In response to the notice issued by the Court, Jahangir Akhtar filed a statement which is reproduced below:--

9. The chief ingredients of the offence contemplated by section 228 of the Penal Code is the intention of the offender and question is, whether a Judicial Officer felt insulted but whether an insult was actually offered and intended. A Judicial Officer is no doubt fully entitled to maintain dignity of the Court, but he should not be too sensitive and to ready to take offence, where none is intended. Section 228, P.P.C. is confined to intentionally offering insult or causing interruption to any public servant while he is sitting in any stage of judicial proceedings. In the present case, only a specific allegation against the appellant is that he used the word that "Ziadti" is being made with the judgment-debtor.

10. From the record and the statement made by the appellant before the Court, suffice it, to say that there was no intention of the appellant to insult or interrupt the proceedings of the Court. He only wanted to bring to the knowledge of the Court that "Ziadti" is made by the police with the judgment-debtor and there was no indication on record that the appellant forced his entry in the Court Room or interrupted in the proceedings of the Court. The utterance of the word "Ziadti" made by the accused/appellant was under the passion/sentiment and feeling the treatment given to the judgment-debtor by the police and while dealing with such cases, the weapon of contempt is always to be used sparingly and always with reference to the administration of justice. Reference in this context can be placed to the case of Ghulam Shabbir v. The State and another (1991 MLD 487).

11. Section 480 Cr.P.C. deals with what is known as direct Contempt of Court and in such an exigency, the Court has an option to proceed either under section 480, Cr.P.C. or under section 476, Cr.P.C. The word "Ziadti" spoken/attributed to the appellant would not be taken as interference or interruption in the Court's work. Reference in this context can be made to the case of Iqbal Hassan Qazi v. The State (1969 PCr.LJ 627). The subordinate Courts have jurisdiction to convict any person for committing contempt of the Court only in the circumstances mentioned in section 228, P.P.C. The law has provided the procedure for proceeding against a contemnor who committed contempt of Court or insulted the Court on its face. In such-like cases, the Court is bound to follow the procedure provided in sections 480 and 476, Cr.P.C. and where the Courts have not followed the procedure provided in section 480, Cr.P.C. the conviction and sentence are not maintainable. In this context, reference can be made to the case of Haji Khawar Saleem v. The State (2000 SCMR 1856). In this respect, reference can also be made to Muhammad Bakhsh and another v. The State (1972 PCr.LJ 96), wherein during the proceedings before the Presiding Officer, the appellant/contemnor shouted as under:- The Court while taking cognizance of the matter convicted the contemnor Muhammad Bakhsh and another under section 228, P.P.C. sentencing them to undergo S.I. for six months each plus fine of Rs.1,000 each and in default to suffer simple imprisonment for a month and a half. This case has been dealt with by a learned Judge of the Court and for non-compliance of the procedure provided in section 480, Cr.P.C., the criminal revision was accepted and the sentence was set aside. In another case Abdul Rahim Shoro and 3 others v. The State (1995 PCr.LJ 1307), the contemnors were convicted to pay a fine of Rs.200 each and in default thereof to undergo S.I. for one month without performing the procedure provided under sections 480 and 481, Cr.P.C. and on appeal, the contemnors were acquitted.

12. In the instant case, the learned trial Court has convicted and sentenced the appellant to undergo S.I. for three months with a fine of Rs.1000 while under the provisions of section 480, Cr.P.C. the Court is only empowered to detain the contemnor in custody till rising of the Court and impose a fine not exceeding rupees two hundred and if the Court considers that the accused should be imprisoned otherwise than the procedure provided in section 480, Cr.P.C. and that a fine exceeding two hundred rupees should be imposed upon him, then the Court was under legal obligation to refer the case to a Magistrate having the jurisdiction to try the same. I am of the definite opinion that the learned trial Court has failed to perform the legal requirement of law as provided in sections 480 and 482 of the Code of Criminal Procedure, hence the conviction and sentence awarded to the appellant is not sustainable in law.

13. For the foregoing reasons and following the dictum laid down in the precedents supra, I accept the appeal and set aside the conviction and sentence awarded to the appellant by the learned trial Court on 27-9-2003 and he is acquitted of the charge. N.H.Q./J-41/L Appeal accepted.