P L D 1993 Lahore 658 (PLP)

KHALIL-UR-REHMAN KHAN, J.

Muhammad Akbar Cheema, respondent filed a Constitution petition challenging the dissolution of National Assembly and the appointment of Ministers in the Caretaker Cabinet. The Constitution petition contains comments on the judgments passed by the erstwhile Federal Court and the Supreme Court of Pakistan and the learned, Judges who passed those judgments not only in intemperate language but also contains averments impugning the integrity and impartiality of the learned Judges. The petition also contains averments, against the superior judiciary and its learned Judges, which tend to undermine authority of the superior Courts, to scandalise the Courts and also tend to bring the Court and its Judges into hatred, ridicule and contempt. Some of the averments tend to prejudice the determination of the matter pending before this Court, i.e. matter challenging dissolution of National Assembly.

2. We taking notice of the afore noted nature of the contents and averments contained in the petition, called upon the respondent to explain his conduct. He, in reply, stated that he had himself drafted the petition and he is conscious of the import of its contents. At this stage, some of the learned counsel present in Court intervened and the respondent took some time to consult them, so as to make amends. We rose, to allow the respondent an opportunity to consider the future course of action to be adopted by him. When the Court re-assembled the respondent submitted that he may be allowed to withdraw the writ petition with permission to rile a fresh one by deleting some of the scandalous material. When asked whether he feels repentent for incorporating in the petition scandalous material, the respondent stated in affirmative whereupon he was asked to tender his apology in writing. The respondent, on' this, categorically stated that he would not submit his repentence in writing and he persisted with this conduct and attitude despite being told that refusal to tender in writing the feelings of repentence and apology would mean -that his expression of repentence is not genuine, rather it is a device or pretext to cover the misconduct and to avoid the contempt proceedings. He during the course of proceedings also made remarks derogatory to the dignity and decorum of the Court. He persisted in his misconduct and committed contempt of Court despite being warned repeatedly that his act of making frivolous, vexatious and contemptuous assertions in the pleadings and other contemptuous remarks and utterances made during the proceedings are rendering him liable to be proceeded against on each count separately.

3. As the respondent persisted with his misconduct and was showing no regard whatsoever to the decorum of the Court we, in order to maintain the majesty of law and dignity of the Court, issued him separately three notices of contempt of Court as under:-- (1) the first show-cause notice requiring the respondent to explain his position was with regard to the averments made in the writ petition. These have been reproduced in Annex. 'A' to this judgment. There are other paras. also which contain scandalous and frivolous remarks and statements. Even in the documents annexed with the petition comments made by the respondent contain contemptuous statements and remarks; (2) the second show-cause notice verbally issued to the respondent was for having made the following remarks:-'-

4. The respondent was warned to be careful in making statement before the Court because every word uttered by him which amounts to contempt would render him punishable separately and that the decorum of the Court must be maintained otherwise he will be suitably dealt with in accordance with law. The respondent interjected with the observation of the Court and stated .as under:-- The respondent was again told that he was not taking care of the observations of the Court as they were intended to make him realise the legal . obligation to obey the law and to maintain the decorum of the Court. He again interjected to say that he is conscious of what he is saying. He added that he should be given a show-cause notice in writing as an oral show-cause notice is not sufficient in law and that only after service of a show-cause notice in writing he would study the law and would give his written explanation. The respondent was told that show-cause notice in writing is not necessary when the contempt A is committed in view of the Court. The provisions of law on the subject were also read over to him. The book "Contempt of Court Act, 1976" was also, on his request, supplied to him, the relevant provisions of which were gone through by him and thereafter the respondent again interjected and stated as under:-- Again he interjected and stated as under:--

5. In these circumstances the respondent was served with a third show cause notice to explain as to why he be not punished for having uttered the afore noted remarks which amount to contempt of Court in view of the Court. The respondent was required to make a statement, if he so wishes. He then stated that he wants to make a statement in his own words and the same may be recorded. The statement of Muhammad Akbar Cheema, accused contemner, was therefore, recorded separately. In his statement he insisted that show-cause notice in writing be given to him and the matter be adjourned for his consideration and for filing a reply to 2-5-1993. According to the respondent, the proceedings for contempt of Court were not being held validly and in accordance with law laid down in thecase of Mr. Aslam Baig. He also desired that copy of the judgment of the Supreme Court in the case of Mr. Aslam Baig be supplied to him for his perusal and the same was supplied to him. We also asked the respondent to have his time to read the judgment carefully but the respondent did not avail of that opportunity. On this, observation of the honourable Supreme Court making an relevant and scandalous attack in a pleading filed in a Court is a direct contempt which can, be dealt with immediately (brevi manu) that is summarily" was read out to him. The respondent, however, insisted that service of a show-cause notice in writing is necessary and the proceedings be adjourned to 2-5-1993. This request was refused and the respondent was confronted with each of the afore noted averments contained in different. paras. et the petition. He admitted in respect of each of the afore noted objectionable covenants that the same do amount to contempt of Court and that he has committed a mistake in incorporating these statements and averments. He added that he and another gentleman had dictated this petition and that he had asked the stenographer to omit some of these remarks and averments but due to failure of electricity he could not notice appearance of these remarks in the final petition. He added that as he has signed the petition after reading it and that as these averments are contained in the petition he owns them and is responsible for the same.

6. It may be noted that on intervention of some learned counsel who were present throughout the proceedings, the respondent, at one stage sought permission to withdraw the writ petition with permission to file a fresh one by deleting some of the scandalous material. He was told that request to withdraw the writ petition cannot be allowed as deletion of some of the scandalous material in the fresh petition would not absolve him of the damage done to the cause of administration of justice. He was, therefore, asked whether he feels repentence on account of his aforenoted conduct. He on advice of other learned counsel stated that he feels repentence but when he was asked to tender his expression of repentence in writing he refused to do so and despite being told that his oral expression of repentence on the advice of other learned counsel present in Court means a device or pretext to avoid the legal consequences ensuing from his misconduct, the respondent not only insisted on not making the amends but further committed contempt of Court by making the aforenoted observations by interjecting the proceedings of the Court. He, in addition to the aforesaid remarks, had the audacity to say in the face of the Court as under:-- He was I told that by making such a threatening statement he cannot restrain this Bench from maintaining the decorum of this Court and deciding the matter before it in accordance with law and no amount of threatening from persons like the respondent can deter this Court from performing its constitutional and legal duty.

7. The respondent at this stage stated that he did not intend to threaten the Judges constituting the Bench. This explanation obviously was an after thought as otherwise the respondent had acted throughout the proceedings in a most objectionable manner, We note it with great anguish that no one has ever mis conducted himself before the very view of the Court in such an objectionable manner what to say of a petitioner who happens to be an Advocate of this Court. This misconceived self-righteousness was a matter of great anguish for the learned members of the Bar who remained present throughout the proceedings. In these proceedings spreading over more than five hours, we rose on three occasions to allow opportunity to the respondent to make amends and to realise the seriousness of the situation created by him on account of his grave misconduct. The third time we rose as the respondent had sought time to submit in writing properly worded apology. However, when we assembled again, the respondent stated that he has not committed any contempt of Court and that the writ petition was supported through documentary evidence keeping in view the press cuttings of newspapers and that he had not committed any contempt today in Court by uttering the words and the remarks noted above. He also stated that he has engaged Mr. Rashid Murtaza Qureshi, Advocate, and he may be heard.

8. Mr. Rashid Murtaza Qureshi, Advocate, submitted that the law of contempt is legacy of Anglo-Saxon law and that the concept of contempt is alien to the Holy Our'an and Sunnah. Learned counsel submitted that respondent may not be punished taking compassionate view and that he will himself slap him five times outside the Court and that will be a sufficient punishment. He finally added that he tenders apology on behalf of the respondent contemner.

9. The submissions noted above prima facie admit that the respondent is guilty of commission of offence of contempt of Court as otherwise there was no reason for tendering apology on behalf of the respondent contemner and awarding him punishment of slapping. The plea that law of contempt is alien to Holy Qur'an and Sunnah has no merit as nothing from the Holy Our'an and Sunnah was cited to support the said plea. The Federal Shariat Court in- re: Islamisation of laws (Public Notice No.6 of 1983) PLD 1984 FSC 40 that the Contempt of Court Act, 1976 ' is not repugnant to the Injunctaions of Holy Qur'an and Sunnah rather Shariat accords exalted position to a Qazi and Qazi has the power to punish a contemner for contempt of Court. As regards the right of a citizen to comment on the judgment of a Qazi mentioned in subsection (3) it was observed as under:-- As regards the position of a W the Court after quoting different opinions of Jurists commented:--

10. The study of Holy Qur'an and Sunnah and Islamic Jurisprudence amply establishes that judiciary in Islam has the inherent power to punish a contemner. (But, no, by thy Lord, they can have no (real) faith, until they make thee Judge in all disputes between them and find in their souls no resistance against thy decisions but accept them, with the fullest conviction). A decision rendered by the Holy Prophet (p.b.u.h.) is quoted in elaboration of the afore noted verse and also to indicate that insolent conduct was suitably punished by the Holy Prophet. This is Tradition No.2362, Sahih Bokhari, which reads as under:-- (One Ansari had with Zubair-bin-Awam a dispute regarding watering of date tree garden from nullahs in AI-Harrab. The Prophet (p.b.u.h.) ordained, "Zubair you have the first turn (So this direction was according to usage) and then leave it for your neighbour. On this Ansari retorted "It is so because he is your first cousin" (Note: Zubair bin-Awarn was son of sister of Prophet's father). On hearing this Prophet's facial expression changed a little and he said "Water your land by retaining the water till it reaches the roots" (thus granted him his full right). Zubair said, "The Ayat (5:65 quoted above) pertains to such like situation). Imam Zuhri on this tradition commented that water till reaches roots implied "retaining of water on the surface to the height of ankles of a man." 10-A. Khattabi, the renowned Jurist as well as Ibn Sabbagh, quoting the abovenoted tradition (see page 39, Vol. V, Fath-ul-Hari by Ibn-Hajr) comments as under:-- "Prophet (p.b.u.h.) had first made an easy direction, but when the to disputant showed insolence the second order admonish him was passed which was of strict nature."

11. It is also pertinent to point out the well-known principle of Islamic Jurisprudence that the incidents and traditions of Holy Prophet (p.b.u.h.) pertaining to his status of Prophethood are exclusive to him and as such are not applicable to anyone else but those which pertain to his other attributes and capacities are to form primary source for deducing principles applicable in similar situations. The principle deducible as far as the status of Qazi out of the aforenoted incident is that awarding of punishment is permissible when disrespect is exhibited against the Qazi's decision. The Jurists of all Schools of Thought in implementation of the aforenoted principle have conceded power to a Judge to punish a person showing disrespect or committing contempt o Court. Imam Maliks Fiqh in pages 194-195 says:-- "When anyone commits contempt in view of the Court by saying "your decision is illegal or void, or you have accepted bribe; had I been man of status or had offered you wealth, your decision would have been in my favour by accepting my evidence etc." it is desirable for the Judge to punish him." Reference may be made to Vol .1, pages 43-46, a well-known treatise on Judiciary in Islam which is instructive. It is stated therein:-- (it is inherent power of a Qazi to award punishment commensurate with the misconduct exhibited when any party to dispute misconduct against the opposite-party, a witness or consultants of the Court, or any one present in Court or with the Qazi himself). The comments contained in 'Al-Mughni' of Ibn Qudama published in Egypt, Vol.9, pages 43-44 read:-- (A Judge is entitled to admonish or by raising his voice deter anyone who creates obstacle in resolution of the controversy and if. such person can also be awarded incorporeal punishment or imprisonment and if any one shows disrespect e.g. by saying "Decision given by you is invalid or you have been bribed" the Judge has the power to punish him or to forgive). In Islamic legal literature instances are not wanting where Judges awarded punishment to a contemner, e.g. in Abbaside period, a Judge of Wasit named Saif-bin-Jabir, awarded punishment of imprisonment to a person who had shown disrespect by rude behaviour. On this Sulemanabi Sheikh, a scholar of the time represented to the Judge that he had punished him for his self and so he should be let off. The Judge remarked' on oath that he did not imprison him for his own sake for if he had misbehaved otherwise than in his capacity as -a Judge he would not have taken I action against him and that he has been imprisoned for the sake of Muslims i.e. society as when a Judge is not respected his decisions would also not be honoured. (See page 313, Vol, III by . The proposition that power to punish contemner is inherent has also been accepted by the contemporary commentators of the Muslim countries. See (i) I ( A-.., a-, ~31 ;". _,) by Doctor Abdul Karim Zaida, Professor Emeritus of Baghdad University, pages 123-124, (ii) of Syria, pages 132-449. 12. -in the case of Aslam Baig (Misc. No.12 of 1993, decided on 29th March, 1993 : PLP 1993 SC 310) learned Judges of the Supreme Court have referred to the verses contained, in Adaab Oazi ( Lj? t;.) one e tradition of the Holy Prophet (p.b.u.h.) as well as an article to point out that after and is the foundational element in Islam and Islamic society. it will, therefore, be seen that in Islamic Society supremacy of law is ensured by granting exalted position to judiciary and by inculcating discipline in Muslims as every Muslim is imparted practical training in discipline even in Mosque which is to be attended to by Muslims five times a day.

13. The majesty of law cannot be maintained without maintaining discipline and decorum of the Courts. If such a conduct is not curbed with heavy hand, no judicial proceedings can ever be held. The decorum of judicial proceedings is to be maintained more for arriving at the truth and just, determination of the litigated right or obligation. The respect that litigants public in general and the lawyers extend to a Presiding Judge is also for the purpose of maintaining majesty of law. It is justice more than anything else which can ensure orderly society. It is the law Courts, presided over by independent Judges dispensing justice without fear or favour, which, ensure independence of a country and with the freedom enjoyed by the judges in the performance of their duties and functions be measured and judged. The independence of the country can be measured and judged.

14. We being conscious of the duty which the Judges are called upon to discharge, every effort was made, in these proceedings spreading over five hours, to make the respondent realise the gravity of the situation. The respondent appeared to be either incorrigible or was motivated to damage irreparably the oldest seat of justice in Pakistan. He with the intention of prolonging this unfortunate situation sought adjournment. This design was not allowed to succeed. In the cases of direct contempt, proceedings are not to take the form of trial. The learned Judges of the Supreme Court in the case of Aslam Baig have held that in case of a direct contempt it is not necessary that there be a written charge, framing of issues, or to hold regular trial or examination and that no other proof is necessary when it is a case of direct contempt. in this every case, it was also observed that "making of irrelevant and scandalous attack in proceedings filed in Court is a direct contempt and can be dealt with immediately brevi manu which means summarily.

15. In the instant case, three show-cause notices were, therefore, served orally as the contempt was in view of the Court. This is so provided in K subsection (4) of section 7 of the Contempt of Court Act, 1976. The procedure adopted by the Court was thus in accord with law and not invalid as asserted.

16. Th ' e question whether the covenants contained in the petition, the remarks and the statements made during the proceedings by the respondent amount to contempt of Court need not detain us as it was admitted that the same amounted to contempt of Court. The respondent is thus guilty of having committed the grossest contempt of Court and we hold accordingly. 17, We may mention here that before coming to the conclusion we had also heard the learned Additional Advocate-General who unequivocally and without. any reservation submitted , that the respondent has committed contempt, of Court of the type which, has no parallel in the history of this Court and that the contents of the . petition as well as his utterances in the proceedings are not only vexatious but also scandalous. He submitted that the contemner M neither deserves any leniency nor is there any mitigating circumstance and' should, therefore, be punished suitably.

18. The question of awarding of, sentence has received our serious consideration. The contempt is of gravest type and the same has no parallel in the history of this institution. It is very unfortunate that such a contempt has been committed by a person who is an ' Advocate and who claims that his academic and professional record is very outstanding. The respondent though has served as a stenographer for most part of his life but at the same time he has spent Almost 16 years in this noble profession of law and as such he is supposed., to know the obligation not only as a citizen and as a member of the Bar of this Court which has the highest traditions of upholding the supremacy of law and of maintaining the majesty, dignity and decorum of the Court but also of maintaining prestige of the illustrious Bar to which he belongs. The respondent, therefore, deserves no leniency. We accordingly convict him to undergo simple imprisonment for six months and a fine of Rs.5,000 on each count. In case of default in payment of fine, he shall further undergo simple Imprisonment for three months on each count. The sentences of imprisonment shall run consecutively. If at any subsequent stage the contemner purges himself, as provided by proviso to section 4 of the Contempt of Court Act, 1976, and approaches the Court for the said purpose, there quest will be considered on merits. These are the reasons for the short order by which the respondent accused was convicted and sentenced by us. M.BA./S-329/L Order accordingly