1997 PLP 462 (CLC)

MAMOON KAZI, C.J.‑‑‑These proceedings, under Article 204 of the Constitution and sections 3 and 4 of Contempt of Court Act, 1976, have been initiated against Pir Shabbir Ahmad Jan Sarhindi, Superintendent Central Prison, Karachi (hereinafter referred to as "the accused").

2. The brief facts of the case are that Constitutional Petition No.866 of 1996 was filed before this Court by Ms. Aasia alias Sanam Shaikh in connection with detention of her husband, Maqbool Ahmed Shaikh. During the hearing of the case, on 19‑6‑1996, an order was passed by the Court, allowing Mr. Raja Qureshi, Advocate for the petitioner, to seek an interview with the detenu and thereafter the case was adjourned for the next day. It may be pointed out that such order was passed upon a concession made by Mr. K.M. Nadeem, the Additional Advocate‑General, who was appearing in the case on behalf of the respondents.

3. The next day, on 20‑6‑1996, Mr. Raja Qureshi informed the Court that he had gone to the Central Prison, Karachi, on 19‑6‑1996 to meet the detenu, but although the accused had been informed about the said order of this Court, yet he did not permit Mr. Raja Qureshi to meet the detenu. As the order of the Court had been disregarded by the accused, a show‑cause notice was ordered to be issued to him, calling upon him to show cause, why action under the law may not be taken against him by the Court.

4. On 27‑6‑1996, the accused himself appeared before the Court and filed an explanation which indicated that on 19‑6‑1996, Mr. Raja Qureshi had visited his office in the Central Prison at about 16‑10 hours to meet the said detenu, but as there was a heavy rush of prisoners at the main gate of the Jail, as the former were returning after attending Court proceedings, Mr. Raja Qureshi was requested by the accused to postpone his meeting with the detenu for the next day. This proposal was readily accepted by Mr. Raja Qureshi who then left without meeting the said prisoner.

5. As the explanation furnished by the accused in the Court was far from satisfactory, the accused was charged with contempt and evidence of witnesses Mr. Raja Qureshi, Mr. K.M. Nadeem, Mr. Haider Zaman and Ahmed Ali, a Naib‑Qasid in the office of the Advocate‑General, Sindh, was recorded.

6. The evidence of the said witnesses indicates that the accused had been informed through Mr. Haider Zaman, the Deputy Superintendent of the Central Prison, about the passing of the said order by this Court. Such information was communicated to the accused by Mr. K.M. Nadeem, the Additional Advocate General, by a letter dated 19‑6‑1996 (Exh.2/A), which was delivered to Mr. Haider Zaman by C.W. Ahmed Ali, a Naib‑Qasid in the Advocate‑General's office. In the said letter, Mr. K.M. Nadeem had directed the accused to allow Mr. Raja Qureshi to meet the said prisoner and the accused was further informed that he had to appear before the Court on 20‑6‑1996 in connection with the detention of the said prisoner. The said letter was subsequently delivered to the accused by Mr. Haider Zaman. However, when Mr. Raja Qureshi met the accused in his office at the Central Prison, the accused first started making certain telephone calls and thereafter, he showed his inability to Mr. Raja Qureshi‑to arrange for such interview, making no secret that he had also to seek permission of his higher authorities, without which he was helpless in the matter. Thus, Mr. Raja Qureshi, after waiting at the Central Prison for about three hours, returned to his office without meeting the detenu. 6‑A. The accused in his statements, recorded under sections 342 and 340(2) respectively, of the Criminal Procedure Code, although, admitted to have received the said letter (Exh.2/A) from Mr. Haider Zaman, the Deputy Superintendent of Jail, but according to him, his meeting with Mr. Raja Qureshi had lasted only for about 25 minutes. Mr. Raja Qureshi had met him after 4‑00 p.m. when the latter had returned from a round of the Jail. According to him, Mr. Raja Qureshi had himself consented for postponment of his meeting with the said prisoner in view of the circumstances as were stated by him in his said explanation, dated 27‑6‑1996, filed in the Court. The accused was supported by D. W. Tahir Ali, the Jail's Warden, who while referring to Entries Nos.681 and 700 in the Jail Roznamcha, confirmed that Mr. Raja Qureshi had entered the jail at 16‑10 hours and left it at 16‑35 hours. Besides Tahir, the accused also examined Munawar Ahmed, Amanulah Khan and Raja Mumtaz, in his defence who more or less supported his version. However, the evidence given by D.W. Tahir further indicated that between 15‑40 hours and 16‑10 hours certain visitors had been allowed to seek interviews with some prisoners.

7. The circumstances enumerated by us clearly indicate that the accused being well aware of the order of this Court dated 19‑6‑1996, did not permit Mr. Raja Qureshi to have an interview with the said prisoner. No doubt, in the s4id letter (Exh.2/A), it was not specifically said that the instructions sent to the said accused by the Additional Advocate‑General were in pursuance of the order passed by this Court on 19‑6‑1996, but we were informed by Mr. Abdul Ghafoor Mangi, the learned Advocate‑General, that the orders of the Court are communicated to the jail authorities in the same format, as was done in the present case. Even otherwise, the evidence of Mr. K.M. Nadeem and Mr. Haider Zaman indicates that there could be no misunderstanding in this regard. Therefore, the accused was fully aware that such were the instructions given by the Court. In fact, it had never been the stand taken by the accused at any stage that such instructions were regarded by him as only those of the Additional Advocate‑General. The plea taken by the accused, however, was that Mr. Raja Qureshi had contacted him in his office only after 4.‑00 p.m. and although the accused was willing to arrange for an interview with the said prisoner but Mr. Raja Qureshi was himself in a hurry as he had fixed a meeting with his client at about 5‑00 p.m. in his office. Therefore, he himself consented for postponment of the interview. The same was, however, denied by Mr. Raja Qureshi during his cross‑examination. Although, the plea taken by the accused also finds support from his defence witnesses, but they were his subordinates and were giving evidence at his behest, therefore, their evidence cannot be wholly relied upon. This plea, however, appears to be an afterthought because the fact that Mr. Raja Qureshi was himself in a hurry to leave on account of the said meeting fixed by him with his client, does not figure anywhere in the explanation dated 27‑6‑1996, which was earlier filed by the accused in the Court. There also appears to be no reason to disbelieve the evidence of Mr. Raja Qureshi in this regard, who apparently had no reason to implicate the accused falsely in this case. The excuse given by the accused that prisoners were returning to the jail after 4‑00 p.m. and, therefore, a meeting between Mr. Raja Qureshi and the said prisoner could not be arranged also appears to be the least convincing. At about the same time interviews with some other prisoners in the jail were allowed which can easily be spelt out from some other entries made in the Jail Roznamcha by D.W. Tahir. This shows the accused's utter disregard for the orders of this Court. If the accused had any intention of obeying the said order of the Court, the mere fact that prisoners were returning to jail at the time of Mr. Raja Qureshi's visit should not have posed such unsurmountable problem for the accused. Therefore, the said charge against the accused has been clearly established.

8. It was urged by Mr. Rana Shamim Ahmed, learned counsel for the accused that a lenient view may be taken, either by accepting the unconditional apology which was earlier offered by the accused to the Court, or in the alternative, a lighter punishment may be awarded to him. Support was sought by the learned counsel from S.M. Laju Kalata v. Nrishingha (AIR 1952 Cal. 669),wherein although the accused was found to have committed contempt of Court by breaking an undertaking earlier given by him to the Court, but a lighter sentence of detention of the accused till rising of the Court and payment of fine was awarded. In M. Inayat Khan v. M. Anwar and 2 others (PLD 1976 SC 354), although, a case of contempt of Court against the contemners was established, nevertheless the contemners were only reprimanded. Similarly, in the case of Mirza Aslam Baig (PLD 1993 SC 310), although proceedings for contempt of Court were initiated against the accused, but in the end, he was discharged, taking into consideration the circumstances of the case. In S.M.Yousuf v. S.K. Rahim (PLD 1969 SC 77), it was observed by the Supreme Court that although, in proceedings for contempt, where the conduct of a person who had apparently defied the orders of the Court, left no room for‑doubt with regard to his intention, but where a belief was possible that he had acted either mistakenly or wrongly but on honest notions of his rights, the benefit of doubt should ungrudgingly be given to him.

9. However, reference to the said cases in the present case appears to be misplaced. Although, we find that the apology offered by the Accused is not unconditional as, in such a case, the contemner must confess his guilt and then place himself at the mercy of the Court, which has not been done by the accused in the present case, but in any case, as was held by the Lahore High Court in the case of Sh. Zahoor Ahmad v. Sher Ali and others (1977 PCr.LJ 852), apology, even if unqualified may not make sufficient amends for the offence of contempt in the circumstances of a particular case. However, it can be considered as a mitigating circumstance for the purpose of awarding a sentence by the Court. In the said case, the complainant was arrested by some police officers who had been earlier informed by him that bail had been granted to him by the Court. The police officers were held to be guilty of contempt and convicted accordingly.

10. In view of the circumstances of the case, we find the accused guilty of contempt of Court and convict him. The accused is sentenced to suffer S.I. for fifteen days and to pay a fine of Rs.5,

000. In default of the payment of the fine, the accused shall suffer further S.I. for three days. A.A./A‑75/K Order accordingly.