P L D 1979 Peshawar 184 (PLP)

8. The respondent appeared as his own witness and affirmed that he took into possession 344 bags of rice and 6 bags of maids on 7-12-1978 and registered a case on that very day under section 3/6 of the Foodstuff Control Ordinance. After a few days the petitioner got bail before arrest from the Sessions Court and brought to him the bail order. He, however, did not bring any release order for the rice to him. During the investigation it transpired that the permits were bogus and he, therefore, collected the relevant record from Political Agent Para Chinar. He explained that after the investigation he added sections 420, 468 and 471, P. P. C. It may be mentioned that on cross-examination of the respondent it transpired that his claim that the petitioner was a smuggler was not sustainable. The only conviction that the petitioner had was one under section 188 of the P. P. C. on 20-2-1978 of a fine of Rs. 200 for being found in possession of Gur in violation of an order under section 144, Cr. P. C. The claim of the respondent that he saw the petitioner for the first time after the seizure of the goods, when he brought to him the pre-arrest bail order, was subjected to cross-examination but the respondent said that he did not know when this order was produced before him and when the petitioner appeared before him. When he was asked to give a categorical reply he said that it was a matter of record which will show that when the petitioner came to him in December. He was further asked when did he come to know that the permits were bogus he reiterated that the record will show the same. At this he was directed to consult the record and what he said after that consultation is that he came to know on 24-1-1979 that the permits were bogus. He admitted having moved the E. A. C. on 23-1-1979 for the permits; going to Para Chinar on 24-1-1979; and moving an application on 25-1-1979. The respondent was elusive and the following questions and answers would suggest of what metal he has been made :-- Q.-When you came to know for the first time that the Court has passed a release order with respect to the rice in question ? A.-I come to know about it from Shahzad Mir, an A. S. I., who belongs to Tal, but I cannot give the exact date. Q.-Whether it will be correct or otherwise, if I suggest it to you that you came to know about the release order in December, 1978 ? A.-No. I did not come to know about it in December. Q.-Did you come to know about the release order in January, 1979 ? A.-I do not remember. Q.-Do you know Mr. Salim Khan and the fact that he is your Illaqa Magistrate ? A.-Yes. Q.-Did you receive the contempt of Court notice from Mr. Muhammad Salim Khan, aforesaid ? A.-Yes. Through his Court order, I got the notice on 25-I-1979. Again said I do not remember the exact date. Q.-Did you give any answer to that notice ? A.-Yes but I cannot state, after how many days I gave the reply.

9. The statement of Noor Hussain, Habib Hoor and Jamal Pir (P. Ws. 2, 3 and 4 respectively) need not be examined exhaustively for nothing turns upon that they have stated. Even if there be a case of forgery against the petitioner, that will not alter the situation for that case appears to have been registered on 25-1-1979 and order of the E. A. C., copy Annexure C, was torn much earlier on 16-12-1978. Again the petitioner produced the original permits and those do purport to be for rice. There does not appear to be erasure or tampering. I should, however, add that the testimony of Noor Hassan and Jamal Pir, shows that the record is not being kept property by the concerned officials of the Political Agent's office and that malpractices are being encouraged. It is indeed startling that many blank permits have been signed and left with the staff. A copy of this para, with copies of the statements of P. Ws. 2 and 4 and the permit books may be sent by the Registrar to the Chief Secretary for such action he may like to take against the concerned officials. The allegations of the petitioner do find full and ample support from the testimony of Mian Muhammad Salim and Gul Rehman and I see no reason to doubt the statement of the petitioner that he did carry an Order of the Magistrate to the S. H. O. respondent on 16-12-1978 but he declined to return the rice and tore the paper. It does not stand to reason that a person who has obtained an order for the release of his rice, after furnishing security of rupees one lac, and is also armed with pre-arrest bail order, should not have taken the order to the S. H. O. in due course of time. The petitioner would not have gained anything by making a false case. One fails to understand what he was going to gain by delaying the return of 344 bags of rice by at least 40 days. He is a businessman and it appears that he only moved the Court, after making all sorts of endeavours to get the rice in. pursuance of the order of the Magistrate, dated 20-12-1978. The story given by the respondent is highly improbable and it rather supports that he was determined to retain the rice despite the order of the Court and it was in consummation of this design that he extended the scope of his investigation further after more than a month on 24-1-1979. It will be seen that this was much after that this Court became seized of the matter and the issue of a show-cause notice to him.

11. The respondent, has, no doubt, placed himself at the mercy of the Court and the Magistrate has also excused him. When the Magistrate was examined by me in connection with his visit to the Court on the last hearing it transpired that he had done this more or less under the orders of the Deputy Commissioner. This is what he stated: There was a jirga of A. C., D. C. and others and they asked me to accept the apology of the respondent. There were so many other officers including D. S. P., Hangoo and as a matter of fact the D. C. himself was not present and he had directed A. C. to hold a jirga. The respondent begged pardon from me and I accepted his apology. I was directed by the A. A. G. S. Ibne Ali that I should give an affidavit and hand it over to him bough I told him that there was no provision for withdrawal. The affidavit is Exh. H. C. Z.

12. The conduct of the A. C. and D. C. both has certainly compromised the position of the Magistracy and I can only wish that they had not done so. I might have issued a notice of contempt to them also but, taking into consideration that they might have acted under some mistaken notions. e. g, promotion of good relations between the Police .and Magistracy, I refrain from going to that extent. As far as the role attributed to the Additional Advocate-General, S. Ibne Ali by the Magistrate, I am satisfied with the explanation of S. Ibne Ali verbally offered in my chamber that he had nothing to do with the jirga and that it was after receipt of a telephonic message from the D. C. that he guided the Magistrate how to submit his application and affidavit, regarding the composition in the Court.

13. Despite the apology of the respondent to the Magistrate and in this Court, I consider that it is a case in which dignity of the Magistrates, working under the High Court, should be vindicated. Moreso when I see that the apology is too late in the day. The respondent has not only torn the orders of the Magistrate but has also tried to harass the petitioner by extending the scope of his investigation. His conduct lends weight to the argument that he has tried his best to create an impression that he can flout the orders of the Magistrate with impunity. He only handed over the rice when the Sessions Judge rejected the Police application and the only when the Assistant Commissioner passed verbal direction.

14. I, therefore, hold the respondent guilty under section 4 of the Contempt of Court Act, 1976, and sentence him to three months' S. I. and a fine of rupees one thousand or in default one month further S. I. I should, however, like to suspend the execution of the sentence for 15 days so as to enable the respondent to move the Supreme Court, if he is so advised. M. A. K. Petition accepted.