P L D 1975 Lahore 635 (PLP)

8. On 22-10-1973, both the matters, namely, the habeas corpus petition as well as the Bail petition, were taken up together. The petition for bail was accepted while on the order-sheet of the other petition it was noted that the learned counsel for the petitioner produced four affidavits with reference to the above-quoted para. 4 of my order dated . . . . . . 17-10-1973. f also noted that the Inspector had made some enquires both in the main case by then registered against the detenus as also in connection with the allegations made against the A. S. i. "I he Inspector also informed the Court on that day that despite not having been summoned in Court, Muhammad Ashraf Butt had come to the High Court premises and was present outside the Court room. The A. S. I. was directed to contact him (Muhammad Ashraf Butt) and direct him to appear in Court, but, after few minutes, he returned and informed that he (Ashraf Butt) was not present outside the Court room. The Inspector was directed not to take a long time in completing the enquiry in his supervisory jurisdiction and the case was adjourned for the submission of his report on the next hearing, i.e. 1-11-1973.

9. As the Inspector had not taken or initiated any action against either of the accused, therefore, the detenu and/or his counsel were permitted to make any application/submissions which might be necessary. The case was adjourned to 6-11-73 when both the accused appeared. Habib Hussain on seeing Mohammad Ashraf Butt, "spontaneously and voluntarily with visible agitation stated that he (Ashraf Butt) has been threatening him with dire consequences if he pursued this matter immediately outside the Court room." This allegation was denied by Ashraf Butt. However, at this stage I decided to take action against both the accused. The entire material, which by then had come before this Court and contained serious allegations, some of which prima facie constituted grave contempt of this Court, was read in open Court. The material included, amongst others, the orders passed by this Court, the report of the O. S. D , the statements recorded by the O. S. D. of Habib Hussain, Mohammad Ashraf Zahid A. S. I., and Mohammad Aslam Inspector as also the medico-legal report dated 12-10-73. Immediately after this, when the A. S. I. was made to understand the contents of the material which prima facie constituted the contempt of this Court, he and his learned counsel were asked "as to why notice of contempt be not issued to him." His learned counsel was about to make some submission when "the A. S. ( spontaneously and voluntarily tendered unconditional unqualified apology with a statement that he is a youngman with insufficient experience and that he has short service in the Police Department". Muhammad Ashraf Butt, who was then unrepresentative, was similarly made to understand the contents of allegations prima face constituting contempt of this Court and was asked to show cause why notice in that behalf be not issued to him. He, in answer, stated that he would show cause. As Muhammad Ashraf Zahid, A. S. I., had not raised any contest, therefore, the case against him was adjourned to the next day, i e,r 7-11-1 y7-1, to consider the effect of the apology tendered by him while Muhammad Ashraf Butt was allowed time to engage a counsel so as to prepare his defence. His case was adjourned to 15-11-1973. Thereafter, both the cases proceeded against the to accused on two separate files, namely, Criminal Original Nos, 62 and 63 of 1973.

10. On 7-11-1913. when the case of Muhammad Ashraf Zahid, A S. I. came up for consideration, Mr. Pasha, learned counsel for the complainant submitted that the apology by the A. S. I. was not spontaneous because had it been so, the same would have been tendered long ago. When called upon to argue the case on the basis of apology Mr. Mahmud Majid learned counsel for the A. S. I. started arguing (at least indirectly) the question as to whether the facts stated by Habib Hussain were correct. It appeared as if the earlier position was being resiled with a view to raise contest of all issues-factual and legal. The recording of the formal statement of the A. S. I, therefore, became necessary. He was put on notice. Relevant facts were put to him. He did not deny them; instead, in most clear terms, he sought apology from the Court "as well as from Habib Hussain and his father". He also promised that he would never do anything to give cause for a complaint. He was also specifically asked whether his apology was. in anyway, conditional or qualified to which he replied in the negative. He also stated that he was "sorry for what has happened" and further that he was not at all "ashamed on tender ing unqualified and unconditional apology before this Court". Arguments were then partly heard to see the effect of the apology on the assumption that no contest had been raised on factual side. In the other case, i.e. against Muhammad Ashraf Butt when the matter came up for hearing on 15-11-1973, the accused wanted to tender apology. He also expressed his regrets with folded hands to Habib Hussain and his father Fazal Karim who were present in Court and asked for forgiveness. Before 1 could record his statement in this behalf, he requested for time so that his counsel might be present; but when the learned counsel appeared there was no time left and the case was adjourned to the next day, i.e., 16-11-1973. When I recorded his formal statement on that day, it appeared as if he had again changed his mind and wanted to contest the case. 1, therefore, adjourned the case to 19-11-1973 for recording of evidence. On the adjourned date, immediately after the case was called and before I could start recording the evidence, Mr. Nawazish Ali Asadi, learned counsel for Muhammad Ashraf Butt, stated that he was being "insistently asked by his client to tender unqualified and unconditional apology and that he had no intention to contest the case and that the same should be accepted". On this, it was observed that "as there was some con fusion about the intention of the respondent with regard to contest or apology" therefore, the learned counsel was asked that whatever the accused wanted to submit should be put in writing. On this, a written statement was filed by him wherein he stated that he did not want to contest the case on any of the charges and at the fame tine he requested that "in these circumstances, irrespective of the consequences and proceeding against him, he sincerely requests and, after submitting true and honest unconditional apology, throes at the mercy of the honourable Court. He further assures. that he will remain a law-abiding citizen of Pakistan". The statement, apart from being signed by the accused, was also signed by his counsel. This case was also then adjourned for arguments.

11. At the time of arguments, Mr. M. Mahmud Majid, Advocate, appeared for both the accused and addressed arguments which are mostly common in both the cares. Mr. Zafar Pasha, Advocate learned counsel four the injured/complainant and Mr. Nemat Khan, Advocate, representing the learned Advocate-General, also assisted the Court during the arguments.

12. The position taken by the learned counsel for the accused was that apology having been tendered by both the accused and the same being not qualified or conditional and further that they not having raised any contest, no further action should be taken and that they should be exonerated by an order of discharge. He took pains to trace the precedent law on the question of punishment for contempt but his main reliance was on a recent ruling of the Supreme Court in Fakhre Alam v. State (P L D 1973 S C 525). Learned counsel for the injured/complainant, on the other hand, relying on earlier rulings of the Supreme Court, contended that it was never declared as law that even if an apology is unconditional and unqualified and is to be accepted as such, the order necessarily should be that of discharge. He, in this connection, also referred to the provisions contained in section 3 of the Contempt of Courts Act and Article 204 of the Constitution to support his argument. In line with his arguments, he asked for deterrent punishment. Mr. Nemat Khan, learned counsel appearing for the Advocate-General, argued that when considering the question, whether the apology should be accepted in this case, it could not be ignored that both the accused had committed the gravest possible Contempt: in that one of the (A. S. I.) being the Custodian of Law, himself flouted it in a glaring manner and the other not only helped the A. S. I. but also demanded bribe with regard to proceedings pending in the High Court. He, however, qualified his argument by submitting that, while awarding punishment which he though should be deterrent, the apology might only be noticed but it cannot be taken as having purged the contempt in its entirety. According to him, in the circumstances of the case, there was no question of an order of discharge.

13. I devoted my careful thought to all the facts and circumstances and came to the conclusion that the Contempt, admittedly, being of gravest nature should be adequately and severely punished. On the other hand, it could not be ignored that one accused, namely, A. S. I., a young boy and not being much experienced in the police force, might have fallen prey to some wrong advice or temptation and further that he, after the initial mistakes tried to conduct himself in these proceedings, in such a manner as to show genuine regret and remorse. The other accused also, after the initial prevari cation, ultimately threw himself at the mercy of the Court and it could not be ignored in that behalf that his conduct in committing the contempt of Court might have been influenced, to a very large extent, by what the A. S. I. did or desired. He having been described as an 'outlaw', it was thought, would not make any difference, because if it were true allegation, he would not be in a worse position than the A. S. I. in so far as the measure of punishment is concerned. In order to resolve this apparent conflict, it was thought whether it would not be proper, instead of sending both the accused to prison for, say, some months and imposing heavy fines on them, to put ;.them under probation for a period of time so as to achieve the results in reformation in addition to deterrence. On this question, T- again sought assistance from the learned counsel for the parties and requested the learned Advocate-General to per sonally address the Court on the legal aspect of the matter.

14. During the re-hearing, the learned Advocate-General did not agree with the view that a 'probation order' under section 5 of the Probation of Offenders Ordinance, 1960, was necessary or even proper. On the other hand, he suggested that, in the circumstances of the case, a `conditional dis charge order' under section 4 would meet the requirements of law and justice. Mr. Mahmood Majid adopted the arguments of the learned Advocate-General but Mr. Pasha, learned counsel for the injured/com plainant, argued that a conditional discharge order would neither be lawful nor proper and repeated hi.,; initial argument that the punishment in this case should be deterrent.

15. Before deciding the question of punishment, which has been the subject of arguments, it is necessary to restate briefly the various items of charges against both the accused. Against Muhammad Ashraf Zahid, A. S. I. the charges were that when an allegation had been made that Habib Hussain (injured) was being tortured and kept in illegal confinement by him and he had learnt that a bailiff had been deputed to recover and produce him (the detenu) in this Court, he, in order to frustrate the process of this Court and with a view further to defy the orders passed by it, moved him out of the Police Station and lodged him in the House of Muhammad Ashraf Butt allegedly an outlaw. The result was that, in order to cover up his above conduct, he subsequently took a false position in this Court that Habi Hussain was not in his custody. And before the detenu was produced before the O. S. D. of this Court, he (the accused) gave him threats and dissuaded him from telling the truth about his torture and illegal detention A and also asked him to pay bribe. The charges against Muhammad Ashraf Butt were that on the asking of the A. S. I., he, knowing that the detenu had been given beating in his presence, detained him in his house: when this Court had already directed his production in Court and thus he also frustrated the process of this Court at the instance of the A. S. I. He was also charged of having twice threatened the complainant party (who were in attendance is connection with these proceedings) outside the Court room and demanded that unless they paid money to the police through him they would not be able to get themselves rid of the case against them and further that, unless they gave up the prosecution of the habeas corpus petition (Crl. Misc. No. 790/H-73) in this Court, they would have to suffer dire consequences and, in this manner, he also interfered with the course of justice.

16. It is agreed that, but for the apology, the charges are such that a heavy punishment both of imprisonment and fine would have been fully justified. After hearing the learned Advocate -General and the learned counsel for the parties and taking into account the apology tendered by both the accused I have decided not to send them to prison nor to impose any fine. r do agree that element of deterrence should not at all be ignored in awarding punishment for contempt of this type because this course is necessary to keep the scales of justice even and unruffled as also protected from sidewinds. But at the same time when I look at the maximum punishment, which can be awarded under the Contempt of Courts Act, and compare it with other offences of the same type and category, it has to be noticed that the Legisla ture, in its own wisdom kept the punishment for Contempt at a lower keel. One obvious reason being that when the dignity of the Court is involved and is to be maintained, there should not at all be an impression even if false of an attitude of revenge. From the above supposition, a corollary would follow that, while not losing sight of the element of deterrence, the object of reform cannot at all be ignored. In this case, after having carefully consider ed all the aspects of the case and having listened to the lengthy verbal statements made by both the accused in camera during the last stages of the arguments, explaining their own and family backgrounds, I am of the view that sending them to prison might prove only a deterrent punishment but it would not have the effect of reform. In that case, there is also possibility that, in association with hardened criminals in jail, they might) deteriorate in conduct and character. On the other hand, if such an order is passed which has the element of punishment as also of mercy and reform it!' might improve the conduct and character of both the accused and make them better individuals and useful citizens. I, therefore, refrain from awarding a punishment of imprisonment and/or fine in the peculiar circumstances of l this case.

17. Though the initial insistence of the learned counsel for the accused for unconditional discharge was later on given up in favour of the course canvassed by the learned Advocate -General yet it would not be out of place to observe that his reliance on Fakhre Alam's case is misplaced. The facts and circumstances therein were different. In this behalf, I agree with the learned counsel for the complainant that it has never been declared as law by their Lordships of the Supreme Court that in all cases, when a contempt matter is to be decided on the basis of apology, it should result in an order of unconditional discharge and further that it always amounts to purging of the Contempt. On the other hand, it was held In re: Arif Nizami and 2 others (PLD1971SC72) that an apology does not provide a contemner with an absolute excuse for the offending conduct nor does it entitle him to a discharge as of right. The evil caused or the harm done to the administration of justice by shaking the confidence of the public in the Court cannot be remedied by apology. "It is only a mitigating circumstance and no more, but even in this respect an apology in order to dilute the gravity of the offence must evidence a real contriteness and an earnest desire to make amends or as has been said in some cases must be a manful confession of conscious wrong doing." In the case before their Lordships through the apology was not rejected but at the same time it was not treated as full amend for the con tempt, even though it was urged on behalf of the accused that if the apology was unqualified without any attempt to raise any kind of defence and was taken at the earliest possible opportunity. Before awarding the sentence of fine in that case, their Lordships, however, observed that there could be cases where an apology might, by itself, be considered to be a sufficient amend and no further sentence may be considered necessary or only a warning may be deemed to be adequate as each case will depend upon its own facts". Furthermore, there are many instances where the Supreme Court, while accepting the apology, dealt with the case, only leniently. In Attorney -General for Pakistan v. Yusuf Ali Khan (PLD1972SC115), after noticing the unqualified apology tendered by the accused. it was observed that this, by itself, did not render the contempt committed excusable nor did it entitle the contemner to a discharge as of right. "An apology is only an extenuating circumstance in mitigation of the sentence, provided it is unqualified and is tendered with an earnest desire to make amends for the wrong-done". In that case, a sentence of two months' simple imprisonment and a fine of Rs. 1,000 or, in default, further simple imprisonment for 15 days was awarded as punishment and in addition thereof, a severe warning was administered. It may be observed here that under section 3 of the Contempt of Courts Act, 1926, also. it has been left to the discretion of the Court whether, on an apology having been made to the satisfaction of the Court, the accused may be discharged or the punishment awarded may be remitted. In other words, it depends upon the circumstances of each case as to what order would be appropriate if and when a satisfactory apology is made, it is also necessary to refer to Article 204 of the Constitution which confers the power on the superior Courts to punish for contempt. This constitution a power however, can be regulated by law and subject thereto by the rules, but the power to punish, apart from regulation, error in any way he withdrawn or abridged. It is not necessary in this case further to examine the question of the vires, qua the Constitution, of section 3 of Contempt of Courts Act in so far as it places an upper limit on the measure of punishment which can be awarded by the High Court. About the regulation by Rules it is necessary however to observe that as held in Ashfaque Ahmad Sheikh v. The State (PLD1972SC39), the exercise of the constitutional power to punish for contempt is absolute and unqualified and is not dependent upon the rules which the Court concerned is authorised to make because sub-Article (3) of Article 204 of the Constitution is only an enabling provision and cannot be taken to have overridden the power to punish under sub -Article (2) thereof. Thus there is nothing in the Constitution and/or the law to prevent the Court from dealing with the matter in its discretion in such a manner so as to meet the ends of justice as also to fulfil the purposes of the law of Contempt as contained in the Constitution.

18. Despite the above legal position, for reasons already stated in para. 16 ante I have decided not to award a sentence of imprisonment or fine. One important reason that has influenced my mind in this behalf is that the A. S. I. is still a youngman with not much experience in public service and appears to be amenable to reform. The other accused is also not too hardened as to defy reform. I agree with the learned Advocate-General that, keeping in view all the facts and circumstances of the case, a probation order under section 5 of the Probation of Offenders Ordinance, 1960, would not be necessary. While coming to this conclusion, I have taken into, C account the future service prospects of Muhammad Ashraf Zahid, A. S. I. accused. If an order under section 5 is passed that might, instead of advancing, have retarding effect on the reform aspect. Therefore keeping in view the considerations specified in subsection (1) of section 4 of the Ordinance for the reasons discussed above, it would not be appropriate lo; pass a probation order under section 5 but an order conditional discharge under section 4 would meet the ends of justice.

19. Learned counsel for the injured/complainant has contended that such an order of conditional discharge under section 4 of the Ordinance, apart from being improper as according to him it would not be sufficiently deterrent, might, in his submission, be not lawful. His main argument is that putting a public servant, namely, the A. S. I. in this case, under the charge of a probation officer would create an anamolous situation. On tile one hand, he would be dealing with crime and procedures for its punishment and on the other, he would himself be under the surveillance of the probation officer. As I do not propose to pass a probation order under section 5, therefore, it is not necessary to discuss this question. He also contended that there is no machinery provided in section 4 for the observance of the conditions attached to the discharge order. There are some provisions in the Ordinance dealing with the consequences of a conditional discharge order under section

4. Moreover there would be no bar on the rower of this Court to enforce and implement its . . . . . . . . . orders. There is no prohibition in Article 204 of the Constitution or in any other law, including the Contempt of Courts Act or the Probation of Offenders Ordinance, for this Court to entrust its officers or a subordinate Court with the duty of reporting the observance or otherwise of the conditions and for that purpose, to guide and watch, in an appropriate manner, the activities of the accused during the period of conditional discharge. Learned counsel also indirectly hinted that such an order of conditional discharge would not serve the deterrent purpose of punishment for Contempt. On the other hand, according to him, such a course might encourage the tendency in a criminal mind to commit the Contempt of a Superior Court and then to get away with only a conditional discharge order. It all depends upon the circumstances of each case. Having carefully considered all the aspects of the matter I do not agree that such an apprehension can genuinely be entertained. Historically speaking, the superior Courts have not hesitated and would not hesitate in future also in vindicating their authority by taking note of, and awarding proper punishment for, their Contempt, in accordance with the Constitution and the law. But the clearly discernible self-imposed restraint in the measure of punishment has served the law and the Courts well in this field of administration of justice. The object of Contempt proceedings is not the vindication of an individual Judge but to protect the Court and to maintain public confidence in its ability and power to administer justice. In this connection, it cannot be ignored that even in the Judicial Code of Conduct, it has been laid down that by equiponderance oppression, meaning unjust and unequal burdens, is removed. It would not be proper therefore, to award such a punishment in matter of Contempt which in addition to being awe-inspiring, may give the appearance of l harshness and roughness as against equanimity and firmness. Therefore, I do not find any impropriety in the proposed order being passed in a case o Contempt provided always that the circumstances justify the same.

20. The last contention of the learned counsel was that, strictly legally speaking, the Probation of Offenders Ordinance, 1960 was neither intended to apply nor it, in terms, applied, to the persons accused of the offence of Contempt nor to the conviction recorded and punishment awarded either under Article 204 of the Constitution or section 3 of the Contempt of Courts Act.

21. The learned Advocate-General, in an ably marshalled argument, controverted the above contention. According to him, there is no case-law on this subject in India and Pakistan, therefore, the provisions which need to be interpreted in this behalf are : Article 204 of the Constitution, Contempt of Courts Act, 1926 particularly section 3 thereof, Probation of Offenders Ordinance, 1960 ; and as the law of Contempt in Pakistan has some historical links with the law in England and America, therefore, those laws can be of some help in the matter of interpretation. He dealt with the subject in two categories as is the law of Contempt in America civil and criminal. The object of the former is the enforcement and observance of the orders of Court. In other words, if the compliance is guaranteed then committal might not be necessary and normally the view taken is lenient. The contemner is not awarded a "punishment" so-called. An injunction order only against repetition of the act can also be visualised. In the latter case, however, the purpose is to vindicate the authority of the Court and, ordinarily, proper punishment/sentence might be awarded so as to achieve complete purge. In this behalf, he read extensively from the subject of contempt of Court in Halsbury's Laws of England, Vol. 1, Third Edition. He also referred to American Jurisprudence, Volume XVII. In Pakistan the law does not make any distinction between two types of Contempt. And, while the word "contempt" has not been defined in the Contempt of Courts Act, in Article 204 of the Constitution, he thought, sub-clause (a) of sub-Article (21 might cover one type of contempt and sub-clauses (b) and (c) the other, while sub-clause (d) would cover both types. The Constitution does not, however, make any distinction with regard to the punishment for any of the species of contempt under any clause. The purview of sub-Article (2) provides that the Court shall have power to punish any person who is found guilty of contempt as explained/defined in clauses (a) to (d). In England, the superior Courts have an inherent jurisdiction to punish contempt by the summary process of attachment or committal and when it is criminal contempt as distinguished from what in American law has been considered as civil contempt, it is punishable on indictment by fine or imprisonment, or by order to give security for good behaviour , See Halsbury's Laws of England, Volume 8, Third Edition, para. 3 It may also be mentioned that in para. 69 it is also explained that "in case of criminal contempt the Court may impose a fine, the amount of which is in the discretion of the Court, either as an alternative or in addition to committal or attachment, or my order the respondent to give security to be of good behaviour". In para. 77, it is clarified that "persons committed for contempt of Court, whether indefinitely or for a fixed term, are treated under special prison rules. They are neither placed in association with criminal prisoners nor compelled to wear prison dress". The discretion left to the Courts is so wide that even after order for committal a possibility has been visualized that if sufficient evidence is available that the prisoner has purged the contempt ; on his application for discharge, when the committal was to vindicate the authority of the Court and it considers that the offender has been sufficiently punished, he might be discharged "without regard to the opposition of the prosecuting party" (paras. 85, 86). Even after sending a contemner to the prison, it is the duty of the Official Solicitor to visit Brixton and Holloway Prisons four times a year, and to examine prisoners confined for contempt and report to the Lord Chancellor, who may assign them a solicitor for taking any necessary steps on their behalf. It is the duty of the gaoler of every other prison to whom any person is committed for contempt to report the case to the Lord Chancellor, who may direct the Official Solicitor to take such steps on behalf of the prisoner as may be required. Thus the law in England contemplates on the one hand sufficient power with the superior Courts to award punishment for their contempt in any manner that is proper and on the other, the element of reform through an order for keeping good behaviour or through surveillance by Official Solicitor even if the contemner is imprisoned, has not been ignored. In America, there has been some trend of authority, not to readily accept any limitation even qua duration of confinement, on the power of the Court to punish for its contempt. There are some cases to the effect that a sentence for a definite term for criminal contempt is not intended to coerce but is purely to vindicate the Court's authority and dignity and "cannot be ended or shortened by any act of the defendant." There are also some decisions indicating that punishment must be entire, and that part cannot be reserved or suspended at the pleasure of the Court. It may be noted, however, that after expressing the view that the matter had never before been decided, one Court has indicated that a suspended sentence of imprisonment for a definite term may be imposed in civil contempt proceedings, where coercion is the primary motive of the Court's action and the contemner is in a position to purge himself ; See American Jurisprudence, 2nd Edition, Volume 17, para. 111.

22. After the analysis of the law in England and America, learned Advocate-General contended that in respect of the subject under discussion, via., extent and or limitations on the power of the superior Courts qua the manner in which they might punish for their contempt, the English Law is more nearer than the American Law to the concept of punishment for contempt of superior Courts as contained in Article 204 of the Constitution. He referred to provisions contained in section 228, P. P. C , to show that it would be permissible in cases of contempt of subordinate Courts, instead of awarding punishment of imprisonment and/or fine, to pass a probation order under section 5 or a conditional discharge order under section 4 of the Probation of Offenders Ordinance, 1960. Some reference was made to similar provisions but in a different context contained in sections 106, 480 and 565, Cr. P. C. It is not necessary to examine the implications in the last mentioned provisions. But there is no doubt about the proposition that a person convicted of an offence of contempt under section 228, P. P. C., can be dealt with under section 4 or 5 of the Probation of Offenders Ordinance. Learned Advocate-General further supported his argument by making a reference to the first proviso to section 3 of the Contempt of Courts Act to the effect that "the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court." There is no dispute about the proposition that the punishment awarded may be remitted either wholly or partly and if it is partly remitted there is no provision that it cannot be conditional. Thus, according to the learned Advocate-General, if after the award of punishment the same can be remitted on a condition like, e.g., of keeping good behaviour, by analogy there would not be any bar to subject the contemner to a bond for good behaviour by way of conditional discharge. It was further contended that such a course would not, in any case, conflict with the provisions of the Constitution. The only remaining question the learned Advocate-General thought to be considered so as to make the provisions of the Probation of Offenders Ordinance fully applicable to cases of contempt of Court, is whether a contemner can, in law, be treated as an accused. The word "accused" has not been defined in the Contempt of Courts Act. He referred to section 40 of the Penal Cod where the word "Offence" has been defined, generally speaking, as "a thin made punishable by the Code". With regard to some of the offences however, it has also been visualized that the word "offence" would have the same meaning when "the thing is punishable" under any special or local law but the prescribed punishment is for a term of six months or upward with or without fine. As the word "accused" has specifically been used in section 3 of the Contempt of Courts Act, therefore, it is not necessary to examine in any detail this aspect of the matter. In any case, the expressions used in the Probation of Offenders Ordinance are : "a person . . . . . convicted of a offence "and" where . . . . . any male person is convicted. The nomenclature, therefore, in either of the two enactments would not be a bar to any action under the Probation of Offenders Ordinance subject of course that the case is otherwise covered thereunder. Coming now to the Ordinance itself, there is no doubt about the same having already been enforced in Pakistan. Section 3 thereof empowers several Courts including a High Court to exercise powers under the said Ordinance. Subsection (2) thereof provides that a Court may exercise these powers whether the case comes before it for hearing or on appeal or revision. And when a Magistrate is not empowered to exercise powers to pass orders under section 4 or 5 of this Ordinance, he shall record his opinion to that effect and then submit the proceedings to a Magistrate who can pass such an order. Sections 4 and 5 deal with conditional discharge order and probation order respectively. Section 6 provides for payment of costs and/or compensation for loss or injury caused to any person by the offence and such costs of the proceedings as the Court might think reasonable. Section 7 deals with consequences of failure to observe conditions of bond submitted under section 5 and section 10 provides for variation of conditions of probation. Section 8 deals with the powers of the appellate and revisional Courts in cases where the trial Court passes orders under section 4 or

5. Some provisions of the Criminal Procedure Code have been made applicable by virtue of section 9, to sureties and bonds taken under the Ordinance. Sections 12 and 13 relate to appointment and duties of probation officer while section 11 provides in detail the effects of the orders of conditional discharge and probation passed under sections 4 and 5 respectively. Sections 16 and 17 contain repealing and saving provisions.

23. Sections 4 and 11 of the Probation of Offenders Ordinance, which are directly relevant in the present case, read as follows:- "4.-(1) Where a Court by which a person, not proved to have been previously convicted, is convicted of an offence punishable with imprisonment for not more than two years is of opinion, having regard to- (a) the age, character, antecedents or physical or mental condition of the offender, and (b) the nature of the offence or any extenuating circumstances attending the commission of the offence, that it is in expedient to inflict punishment and that a probation order is not appropriate, the Court may, after recording its reasons in writing, make an order discharging him after due admonition, or, if the Court thinks fit, it may likewise make an order discharging him subject to the condition that he enters into a bond, with or without sureties, for com mitting no offence and being of good behaviour during such period not exceeding one year from the date of the order as may be specified therein. (2) An order discharging a person subject to such conditions as afore said is hereafter in this Ordinance referred to as "an order for conditional discharge", and the period specified in any such order as "the period of conditional discharge". (3) Before making an order for conditional discharge, the Court shall explain to the offender in ordinary language that if he commits any offence or does not remain of good behaviour during the period of conditional discharge he will be liable to be sentenced for the original offence. (4) Where a person conditionally discharged under this section is sen tenced for the offence in respect of which the order for conditional discharge was made, that order shall cease to have effect." 11.-(1) A conviction of an offence, for which an order is made under section 4 or section 5 for discharing the offender after the due admonition or conditionally or placing him on probation, shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the provisions of this Ordinance; Provided that where an offender, being not less than eighteen years of age at the time of his conviction of an offence for which an order discharging him conditionally or placing him on probation is made, is subsequently sentenced under this Ordinance for that offence, the provisions of this subsection shall cease to apply to the conviction. (2) Without prejudice to the foregoing provisions of this section, the conviction of an offender who is discharged after due admonition or conditionally, or who is placed on probation shall in any event be disregarded for the purposes of any law which imposes any disquali fication or disability upon convicted persons, or authorizes or requires the imposition of any such disqualification or disability. (3) The foregoing provisions of this section shall not affect- (a) any right of any such offender to appeal against his conviction, or to rely thereon in bar of any subsequent proceedings for the same offence ; (b) the revesting or restoration of any property in consequence of the conviction of any such offender." There is nothing in the Ordinance to show that a person, who is accused of contempt of Court and is convicted would not be entitled to seek benefit under the provisions thereof. In other words, when a person is convicted of contempt of Court and, before or after the award of punish ment, if the convict satisfies the Court that an order of conditional discharge under section 4 would be appropriate and just in the circumstance of the case, there is no limitation on the power of the High Court contained either in Article 204 of the Constitution or in the Contempt of Courts Act or in the Ordinance itself with regard to its passing such an order. It is not necessary to repeat over against all the arguments of the learned Advocate-General in this behalf. I entirely agree with him that such an order is not only legally permissible but also proper in the facts and circumstances of the present case. This question need not be examined any more. Other objections raised by the learned counsel for the injured/complainant have already been dealt with in para. 18 of this judgment. His last contention that a conditional discharge order under section 4 of the Probation of Offenders Ordinance would not be permissible under the law of contempt has successfully been met by the learned Advocate-General. The same, therefore, is repelled.

23. In the light of the above discussion, I pass the following order:- (a) I hold both the accused guilty of contempt of this Court for having committed various acts in connection with the filing of Habeas Corpus Criminal Misc. No. 790/H/73 and subsequent proceedings thereon, which are mentioned in detail in the said proceedings recorded by the O. S. D. of this Court as also in the Court itself. (b) On conviction for the contempt of this Court under Article 204 of the Constitution read with section 3 of the Contempt of Courts Act, I am further of the view and hold that both the respondents, subject to what I have observed and this order in respect of apology and other mitigating circumstances, deserved heavy punishment which should, in normal course, have been sentence of imprisonment as also of fine. (c) But for the reasons already given in detail and on account of apologies tendered and other mitigating circumstances including the age, character and antecedents of the accused, I take a lenient view of the matter and direct that despite the conviction for the contempt of this Court both the accused be discharged, and are hereby discharged, conditionally by virtue of powers vested in this Court under Article 204 of the Constitution read with section 4 of the Probation of Offenders Ordinance, 1960. The discharge is conditional in that both the accused shall within 24 hours enter into respective bonds in the sum of Rs. 5,000 each, with one surety in the like amount each, for committing no offence including contempt of Court and being of good behaviour during the period of six months from the date of this order 1. e. today. (d) During this period of conditional discharge both the accused shall appear before and report to O. S. D. (1) of this Court after every two months and also five days before the expiry of the period of bond. The O. S. D. shall, on such appearance and report, submit his own rep art to the Court with regard to compliance with the conditions of the bond. He shall, in this behalf, act in accordance with law with regard to failure of or default in the bonds or sureties and report the matter accordingly. (e) One of the accused namely; Muhammad Ashraf Zahid, is an A. S. I. in the Police Force. He is stated to be on probation (qua his service) in his own Department. It is directed and clarified that he shall not suffer any departmental disqualification or disability during the period of the continuance of aforementioned bond of conditional discharge in respect of his service in any manner whatsoever; subject, however, to the final orders of this Court after the expiry of the period of bond. The provisions contained in section 11 (particularly sub. section (2)) of Probation of Offenders Ordinance, 1960, shall mutatis mutandis, apply to the case of Muhammad Ashraf Zabid, A. S. 1., accused during the period of bond and conditional discharge. S. A. H. Order accordingly,