2008 PLP 459 (YLR)

MUHAMMMAD FARRUKH MAHMUD, J.

This appeal is directed against the order, dated 28-7-2005 handed down by Mr. Muhammad Kaleem Sheikh, learned Additional Sessions Judge, Rahimyar Khan, whereby the appellant was convicted for offence under sections

228. P.P.C. and sentenced to undergo S.I. for three months. The appellant was also directed to pay fine of rupees one thousand. In default in payment of fine, the convict was to further suffer S.I. for fifteen days.

2. The relevant facts are that the appellant was engaged as counsel on behalf of the complainant in bail application titled "Ghulam Abbas v. The State", which was being heard along with application seeking cancellation of bail titled "Muhammad Ibrahim v. The State". The above noted applications were being heard on 20-7-2005. During the course of arguments, the appellant, while addressing the opposing counsel Mr. Abdul Basit Khan, Advocate, stated as follows:--. The learned trial Court took notice of the matter and issued notice for committing of contempt of Court on 20-7-2005. On the same date,' another notice for committing contempt of Court was issued to the appellant for the reason that within the view of the Court, he shook hands with one Makhdoom Shams-ud-Din son of Muhammad Ibrahim, who had entered the Court. On the same date, the appellant filled written reply to the notice issued to him, which is available on the record of the case. Through para. 3 of the reply, the appellant brought on record his version of the story, which is being reproduced hereunder:-- "That the notice has been issued by ignoring all the proceedings conducted in the case. Actually, the opposing counsel Mr. Basit Khan was repeatedly interrupting in the arguments of the undersigned and threatening his fundamental rights of access to justice. for which the undersigned was requiring interference of this Court as a good Judge, but when the attention of the Court was drawn, then this Court started to find out the reason for an action against the person of the undersigned. The precise story of proceedings is as:-- "When the undersigned pointed out that both the applications, (i) Abbas v. The State (bail before arrest); (ii) Ibrahim v. The State (bail cancellation) in the same offence must be heard jointly as required by the law and today Dildar accused is absent. But Mr. Basit Khan shouted in the Court that Mr. Riaz H. Rahi is mala fide and he wants to overawe the Court. The undersigned again said that "I am astonish about the manner in which Mr. Basit Khan is arguing. Then Mr. Basit Khan interrupted that Mr. Rahi has two words in his memory i.e., astonish and afraid. The undersigned drew the attention of this Court that the decorum of Court is not being respected. Mr. Basit Khan has no superior right when his arguments are not interrupted, then why he is interfering in the arguments of the undersigned. His fundamental rights u/A. 9, 25 must not be infringed." The appellant neither admitted nor denied that he had expressed the above noted remarks. In para 2 of the reply, the appellant, without resorting to any provision of law, challenged the jurisdiction of the Court, relating to the issuance of notice to him.

3. The appellants submits that neither any contempt of Court was committed by him. nor he had any intention to insult the Court; that above-quoted remarks were addressed only to the opposing counsel who was not allowing the, appellant to address his arguments to the Court and was repeatedly interfering while the appellant was addressing the Court; that the learned trial Court did not record the statement of Mr. Abdul Basit Khan, Advocate, in support of the allegations; that the appellant was practising as an Advocate for the last ten years and appeared before the Honourable High Court frequently, he could not conceive of insulting a Court; and that the conviction and sentence recorded by the learned trial Court was totally unjustified.

4. On the other hand, the learned Assistant Advocate-General and the learned Deputy District Public Prosecutor have frankly conceded that the learned trial Court, while passing the sentence of three months, transgressed its powers. Reliance has been placed upon Irshad Ahmad v. The State 1992 SCMR 1229.

5. I have heard the learned counsel for the parties and have also gone through the relevant record of the case.

6. It has been noticed that according to the contents of the notice issued to the appellant, sentence was addressed to the opposing counsel and not to the Court. The import of the sentence appears to be that the appellant meant that the opposing counsel should not continuously, keep interfering during the arguments of the appellant and should also give a chance to the appellant to address the Court.

7. After issuing the notice, feeling aggrieved, the learned trial Court opted to proceed against the appellant in its own jurisdiction under section 480, Cr.P.C., which reads asunder:-- "

480. Procedure in certain cases of contempt.

(1) When any such offence as is described in section 175, section 178, 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. The perusal of the provision of sec tion 480, Cr.P.C. makes it manifest that the Court could only detain the appellant till rising of the Court on the same day and could inflict fine not exceeding rupees two hundred. Though the learned Court has referred to the provisions of section 480, Cr.P.C. but obviously, the learned Court did not go through the provision. If the Court was of the opinion that the appellant deserved a harsher sentence, then the Court should have resorted to the provisions of section 482, Cr.P.C. The case-law cited by the learned Assistant Advocate-General would apply to the facts of the case. In the circumstances, I allow this appeal and set aside the order passed by the learned trial Court. The appellant in acquitted of all the charges. He is on bail bonds are cancelled and the surety is discharged. N.H.Q./R-30/L Appeal accepted.