P L D 1967 Karachi 652 (PLP)

3. A written complaint was presented by one Wali Muhammad before the District Magistrate, Larkana on 19‑8‑64, in which it was alleged that his daughter Mst. Shahzadi who had been married to Pinyo son of Ismail of Warah 4 or 5 years ago was being taken by her mother‑in‑law Mst. Inayatan to the house of the Sub‑Judge, Warah for immoral intimacy with him. It was further stated that Mst. Shahzadi did not like "to be illicit with the Civil Judge Mr. Abdul Jabbar but she was being pressed and compelled by her mother‑in‑law and her husband to do so. It is stated by Mst. Shahzadi that her chastity has been violated by the above‑named Sub‑Judge twice or thrice and in case of refusal she is being maltreated". It was added that 3 or 4 days back he had gone to Warah to see his daughter and during his stay he saw that she was being pressed to go to the house of the said Sub‑Judge and on inquiry Mst. Shahzadi told him that her husband and her mother‑in‑law wanted to produce her before the Sub‑Judge for immoral purposes. Thereupon he had interfered but he was driven away from the house. A search warrant and action according to Law against Pinyo, Mst. 1nayatan and Sub‑Judge was prayed to be taken. When this complaint was presented the District Judge promptly recorded, the statement of Wali Muhammad on the same day. In the oral statement which Wali Muhammad made the version that he gave was materially different from what was stated in the typed complaint. Amongst other things he made a positive statement that his daughter did not tell him that the Sub‑Judge had committed any illegal act with her. To this statement I shall revert later. The District Magistrate did not issue any such warrant and passed an order transferring the complaint to the Additional District Magistrate to hold a preli minary inquiry to ascertain the truth of the allegations: How ever, it seems that Wali Muhammad went to the Superintendent of Police, Larkana with a copy of the same complaint on 20‑8‑64, and the S. P. made the following endorsement on that complaint. "S. H. O. Warah P. S. for legal action" Wali Muhammad with this application and the endorsement then proceeded from Larkana to Warah and handed it over to the respondent Muhammad Pinyal the same day. On 21st morning the respon dent accompanied by at least 8 men according to his own admis sion including 3 or 4 constables, proceeded to the house of Mst. Shahzadi's husband Pinyo. According to the Civil Judge there was a large procession of men and children. This party passed by the Court of the Civil Judge and reached the house of Pinyo. There he called out Pinyo but he was not there and Mst. Inayatan came out. Simultaneously Mst. Shahzadi also came out and it is said that she promptly told the Sub‑Inspector that she was being pressed to go to the house of the Civil Judge for immoral purposes. The respondent then prepared a mashirnama of the recovery of the girl and of the statement that she had made and then the police party along with the two women, namely Mst. Inayatan and Shahzadi proceeded to the Police Station. There the statement of Inayatan and Shahzadi was recorded. According to the evidence led in support of the complaint of contempt this statement was recorded openly in the garden of the police station whereas according to the respondent it was recorded in his Office. In this statement Mst. Shabzadi said that the Civil Judge had committed the immoral act with her twice or thrice and that she was being forced by her husband and mother‑in‑law to go to his house. She was then sent for medical examination the same day from where she returned the next day and the respondent handed her over to one Yarn, the uncle of .the girl at Larkana. This Yaru is the father of Faizan or Faiz Muhammad who had accompanied the police party to the police station and was one of the persons whose statement had been recorded. Thereafter the Sub‑Inspector (respondent) did not take any further action and it was on 4th September 1964, that he received a written communication from the District Magistrate to forward all the papers to him and he did so. According to him, he had received a telephonic message to the same effect on 1st of September.

4. The respondent in his written statement showing cause against the notice of contempt denied that he had gone in a procession to the house of Mst. Inaytan and complained that the Civil Judge and Magistrate had made this false report to this Court in order to take vengeance from him. He went on to add that having received the complaint of Wali Muhammad on 20‑8‑64, he started the inquiry the next day and went to the house of Pinyo accompanied with mashirs and recorded the statement of witnesses at the Police Station and sent the girl for medical examination about her injuries. He added that when he had started the inquiry the Civil Judge had sent for him and told him to drop the proceedings but he had declined to do so. He traversed the other allegations in the reference made by the Civil Judge.

5. Having regard to the nature of allegation and counter allegations both the parties naturally offered to give evidence. Mr. Safdar Shah for the State appeared and supported the action for contempt and Mr. Tufailali A. Rehman appeared for the respondent. On the side of the complainant seven witnesses were examined including Mr. Abdul Jabbar. The respondent examined himself and five other witnesses. Mr. Abdul Jabbar gave a detailed background of the reasons for which the respon dent bore strong ill‑will against him. He related the various actions which he had taken against the respondent and other members of the Warah Police Station and other Police agencies during his term of office as the Presiding Magistrate of the Court. All these statements are supported by documentary evidence which consists of various reports which Mr. Abdul Jabbar had made to the District and Sessions Judge, Larkana, to the District Magistrate and also to the Superintendent of Police. Mr. Abdul Jabbar had taken charge at Warah on 13th July 1963. On or about 27th August 1963, he was informed by the prosecuting Sub‑Inspector that the respondent Muhammad Pinyal had told him that there was a rumour in the public that this Civil Judge was going to acquit all the police challans. The Civil Judge then recorded the statement of the prosecuting Inspector and sent for the respondent and asked him to explain as to who had told him about what he was going to do in the criminal cases. What took place then in the Court is brought out in the evidence of Mr. Abdul Jabbar supported by the state ments of two advocates, the P. S. 1. and the Clerk of the Court. According to these the Sub‑Inspector had made varied statements, first denying having made the alleged statement to the P. S. I.. and then adding that it was after all a private matter. Mr. Abdul Jabbar then made a report of tilts fact to the District Judge along with the statement of the aforesaid witnesses which he had recorded. This report is Exh. 4 and the statements of the witnesses is Exhs. 5, 6, 7.and 8 respectively. The reply of the District Judge to this complaint is Exh.

10. Mr. Abdul Jabbar then further stated that a contempt action was taken against a police constable Mehar Ali of the Warah Police Station, because he had found that he was interfering with defence witnesses in a case. This notice is Exh.

11. Mehar Ali submitted an explanation accompanied by certain annexures and a letter of the respondent. The idea of filing these annexures was to suggest that Mr. Abdul Jabbar was lenient to the accused in criminal cases. On 22‑I 1‑63, Mr. Abdul Jabbar sent a complaint to the District Judge about the interference of local police with the administration of Justice. This is Exh.

13. On 25‑5‑64, he sent a complaint to the S. P. Larkana about the attitude of the local police regarding service of summons on witnesses. His complaints to the S. P. are Exhs. 18, 19, 20 and

21. On 8‑8‑64, and 10‑8‑64, he sent .two complaints to the District Magistrate about the inefficiency of the local Police. These are Exhs. 26 and

27. It may be added that all these complaints do not relate only to the Police Station Warah of which the respondent was in charge. Some of the complaints refer to the other police stations which were under the jurisdiction of the Court at Warah, of which Mr. Abdul Jabbar was the Presiding Officer.

6. With regard to the incident of 21‑8‑64, Mr. Abdul Jabbar stated that at about 9‑30 a.m.. when he was sitting in Court he saw through the window a large crowd passing with the respon dent and 4 or 5 armed Policemen. He asked somebody in his Court‑room as to what it was about and was informed that the respondent was telling people that these were the actions of a Sub‑Judge. Sometime thereafter the peon Lal Bux had gone to the Police Station with a Court diary and the summons and he came back and told Mr. Abdul Jabbar that the respondent was pressing upon 61st. Inayatan to make a statement against him. Mr. Abdul Jabbar further states that when he went for lunch to his place he was told by his people that a crowd had come and stood in front of their house and the idea was to humiliate him. It may be stated that the house in which Mr. Abdul Jabbar was residing was at a short distance from the house of Mst. Inayatan. According to Mr. Abdul Jabbar the result of all this was that by the evening every body was staring at him and he learnt that a complaint had been filed against him that he had raped the daughter‑in‑law of his maid‑servant. He denied that he had called the respondent on 21‑8‑64, and had asked him to drop any proceeding. He said that all this was false and he only saw him when he first cane to give evidence in his Court. The next three witnesses, namely Haji Muhammad Parial, Qadir Bux and Khuda Bux of the same town, stated about the large crowd which had accompanied the Police party which had gone to the house of Mst. Inayatan and later with the two woman to the Police station and that it was being said that the Sub Judge had committed rape. Mst. Inayatan gave evidence and denied having ever taken her daughter‑in‑law to the house of the Civil Judge and added that the respondent had come to take out Mst. Shahzadi from her house with a very large crowd and he had taken her also. She added that about 25 or 30 people from the crowd had accompanied them from her house until they reached the police station and when her statement was being recorded there were 20 to 2S persons still present. Thereafter Mst. Shahzadi had never returned to their house. Then there are two employees of the Court of the Civil Judge, namely Lal Bux peon and Mir Muhammad copyist. The former stated that he had gone to the Police Station t king certain process with the peon book and there he found that there were about 100 to 125 people in the Police Station and the S. H. O. was sitting in a garden and was telling the woman to make statement against the Civil Judge. The latter stated about his seeing the procession with the Police party consisting of about 40‑50 people who had passed by the back of the Civil Court building. This is all the evidence led on behalf of the complainant.

7. The respondent gave an explanation with regard to the incident which had happened on 27th August 1963, and said that this was because he had told the P. S. 1. that his brother should not appear in cases in which he himself was conducting the Case for the Police. With regard to the incident in question he said that Wali Muhammad had brought the written complaint with him with the endorsement of S. P. and that on the 21st morning he went to record the statement of Mst. Shahzadi. He had taken with him a zamindar who had come to meet him and three constables and then he had gone to the town and picked up two mashirs. His party, according to him consisted of 8 people including himself. Reaching the house he called out Pinyo and when Mst: Inayatan came out and was telling him that Pinyo was not there Mst. Shahzadi by herself emerged out of the house and complained that her mother‑in‑law and her husband were sending her to the house of Abdul Jabbar for immoral purposes and that the act was being done upon her. By that time Faiz Muhammad, her cousin, who lives in the adjoin ing house, also came out and he then prepared the mashirnama, Exh.

35. He admitted that a few persons had then collected but he had told them to go away. He then stated that as the house of Mr. Abdul Jabbar was nearby he did not consider it proper to record the statement of the women at that spot and therefore took them to the Police station. He said that he had not passed by the office of the Civil Judge anal even if he had done so he would not have passed by the Post Office from which the postman had been examined on behalf of the complainant. He recorded the statement of the two women at the Police station in his office and sent Mst. Shahzadi to the hospital at Larkana, where the Civil Surgeon examined her and gave her a certificate Exh.

45. According to this certificate there were two marks of beating with a hard substance on the legs of Mst. Shahzadi. He spoke about the Civil Judge asking him to drop the proceed ing that thereafter a requisition was received by him from the D. M. that the inquiry papers of the case should be sent to him and he complied. He denied that he had taken a crowd so as to tom tom the fact that the Civil Judge was involved in the case. What he had done was a part of his duty and he had no inten tion to humiliate the Civil Judge and give a bad name to him. Wali Muhammad, the father of the girl, stated having gone to the Sub‑Inspector on 20th and having accompanied him to the house of the son‑in‑law on the 21st morning and generally supported the version given by the Sub‑Inspector except that in the Examination‑in‑Chief he admitted that the police party had passed by the back of the Court. Then there are two mashirs Abdal Shakoor and Daim Khan who had been brought by the Sub‑Inspector with him as mashirs and they also narrated the event more or less in the same way as the respondent has done. The 5th witness Hamid Ali was cited to prove that the Police party did not pass by the post office. Lastly, Mst. Shahzadi was examined and she stated that her mother‑in‑law had taken her to the house of the Civil Judge and the latter bad committed adultery with her three times. She added that when her father Wali Muhammad came and she told him about it her husband beat her on that day. She then stated about the Police party coming and having learnt this she herself came out and complained to the S. H. O. of what had happened to her.

8. There is considerable variance with regard to the Strength of the Police party which went to the house of Mst. Inayatan. I am, however, satisfied that apart from the four police men and other four persons who had been taken by the respondent to constitute the police party a crowd had at least collected at the house of Mst. Inayatan. I am also satisfied that before the Police party had reached the house of Mst. Inayatan it must have attracted the attention of people in the town and it must have aroused the curiosity of the people in the town and some of them may well have accompanied the police party. This is the most favourable view to the respondent with regard to this part of the complainant's case. It is significant to note that the respon dent admits that from the Police station, from where he started with a zamandir and 3/4 constables, had gone to the town. His ostansible object for doing so was to get a few mashirs. This, however, may well have been unnecessary because the mashirs could have been sent for at the Police station. The fact that the police party first went to the town and then went to the house of Mst. Inayatan passing by the back of the Court‑room lends a strong support to the complainant's case that the idea was to give the incident a lot of publicity. But what has impressed me more and more is the fact that there does not seem to have been any justification having regard to the facts of the case for even taking party of eight to the house of Mst. Inayatan. The respondent was pointedly asked whether he had gone to recover the girl and he had to admit that he had nut and he had merely gone to record her statement. He had to admit this because he did not have a search warrant. The question is, was the Sub‑Inspector acting in good faith in the discharge of his duties because if this was so I would not hold hire for contempt even though it has been established that there has been rancour in his mind against the Civil Judge who had been taking very energetic and strong action against the Police including the respondent during his stay in office as the Magistrate Warah. Let us then briefly examine the facts.

9. Wali Muhammad had presented the complaint to the District Magistrate and his statement was recorded by the latter on the 19th of August. That statement is Exh. 47/2. In this the story given by Wali Muhammad was very much different from what was contained in the typed complaint and from what he stated in Court before me. What he said was that about 3 or 4 days ago he had gone to Warah and had stayed in the house of his daughter. He had then gone in the town to take a walk where he met one Usman G ale who told him that Pinyo was beating his daughter Shahzadi and when he went to the house he found that his daughter had been rescued by two persons Faizu and Bagghu. Both of these are his nephews and were cited as witnesses He goes on to say that he then asked his daughter whereupon she stated that her husband and her mother‑in‑law were forcing her to go to the house of Judge Sahib and that the latter had twice taken her to his house and the Civil Judge had been compelling her to submit to illegal act but she had refused. He then seems to have been pointedly asked by the District Magistrate whether she complained to him that the act had been committed upon her and he stated that his daughter did not tell him that the Judge had committed the illegal act with her. On this statement the District Magistrate naturally did not take any further action as had been . prayed but made an order directing the A. D. M. to hold a preliminary inquiry to ascertain the truth. It was on the next day that Wali Muhammad got the same copy of the complaint endorsed by the S. P. and proceeded to W arch and according to him handed over the complaint to the respondent. Now, assuming that the respon dent had, therefore, known nothing about all this, he would normally record the statement of Wali Muhammad, because he would have to proceed cautiously considering that a very grave allegation against the local Magistrate was made in the com plaint. When questioned about it the respondent stated that he had put questions to Wali Muhammad but had not put it down on paper. That seems somewhat extraordinary having regard to the nature of the case. If the respondent questioned Wali Muhammad, as he says, he did, there is no reason to believe that Wali Muhammad would not have made the same kind of statement before him as he had already made before the District Magistrate and if that statement had been made there would have been no justification for the Sub‑Inspector to proceed with a party of eight and pass through the town and go and recover Mst. Shahzadi. She was a grown‑up woman, had been married 5 years back and had a child from her husband. If Wali Muhammad's statement before him had been the same as before the D. M. the respondent would have noticed that this version was very much at variance with the written complaint even on matters apart from the allegation of rape. Then there is another aspect. I am not prepared to believe that Wali Muhammad did not tell the Sub‑Inspector or that he was not aware of the fact that the former had filed his complaint before the D. M. and that the latter had recorded his statement and had ordered an inquiry by the A. D. M. without any action in respect of the prayer about the search warrant. And if the respondent had known that the A. D. M. was seized of the matter the kind of action that he took was not justifiable. However, if he was keen to record the statement of the girl, which is all that he says he was concerned with, where was the need to proceed with the policemen to the town and then pass by the Court of the Civil Judge and then effect a dramatic recovery of the girl. The manner in which the girl is said to have promptly come out and made her complaint to the respondent raises a very grave suspicion of previous concert. The respondent was asked as to why he did not record the statement of the girl at the house and the explanation which he attempted was that as Mst. Inayatan's house was near the house of the Civil. Judge he did not think it right to record her statement there. I am unable to accept this explanation. The true reason was to take the women to the Police station and by the time they reached there with so many armed Policeman it would have been all over the town that the Civil Judge was involved in a case connected with the Mst. Shahzadi. Indeed, respondent's own witnesses Hamid Ali who spoke having seen the respondent accompanied by the mashirs and the constables proceeding northwards stated in cross‑examination that it was a notorious thing that the Civil Judge was accused of adultery with Inayatan's daughther‑in- law.

10. Mr. Tufailali with considerable force agreed that the respondent having received the complaint with the endorsement of the S. P. had to do his duty and in this be could not be deterred merely because amongst the persons named as the accused was the Civil Judge. I agree that by itself that would be no consideration whatever to stand in the way of a Police Officer taking legitimate action, but I have already pointed out that having regard to the nature of the written complaint which in most part was thoroughly unnatural and other circumstances the respondent did not act in good faith. It is most significant to note the conduct of the respondent after all that display which took place on the 21st of August. If the idea was to proceed with the investigation and serve the ends of justice why did he not do anything in that direction. He had sent the girl for medical examination and had received the report the next day of two marks of beating on the girl. As to what he did there after in respect of this investigation he was closely cross -examined and he had to admit that he did exactly nothing until the 4th of September when having received a communication from the D. M. he sent the papers to him. He says he received a, telephonic communication to that effect on the Ist. Let it be so, but what was he doing for the eight intervening days. All that he says is that he was wanting to discuss the matter with the S. P. He had not registered any offence, he had not cared to go to the Civil Judge and record his statement or ask him about. it. I disbelieve the story that the Civil Judge sent for him and asked 'him to drop the proceedings. Having regard to the background the Civil Judge could never have been so foolish as to do that. So here we have a grave complaint of rape against a responsible Presiding Officer of the only Court in Warah. Most of the towns came to know as a result of what had hap pened on the 21st that the Civil Judge had been accused of a grave and immoral offence and yet no further action was taken by the respondent except that the girl was handed over to Yaru, her uncle and later on transferred to her father. The complete inaction of the respondent after the recovery of the girl strongly suggests that the purpose seems to have been fully achieved. Mr. Tufailali argued that he was prepared to assume for the purposes of the case that the complaint of Wali Muhammad was false but in the absence of proof that the respondent had anything to do with the lodging of this complaint by Wali Muhammad, the events that had happened were equally consistent with the innocence of the respondent with regard to the charge against him that the action that he had taken was calculated to scandalise Mr. Abdul Jabbar as Civil Judge, I have very carefully considered this most important aspect of the case. The pro ceedings in contempt are in the nature of criminal proceeding and where the facts are disputed the Court has to be satisfied beyond any reasonable doubt that those facts have been established upon which finding of contempt can be based. Now, any direct evidence with regard to the complicity of the respon dent or his having been taken into confidence before hand by wali Muhammad would be hard to expect out the circumstances to which I have referred point strongly to the respondent having been in confidence of Wali Muhammad or Faiz Muhammad who is the cousin and neighbour of Mst. Shahzadi and who was the witness and who was stated at the time of the argument to have later on married this girl Shabzadi. Apart from what has been said above it may be noticed that it is reason ably clear from the cross‑examination of Mst. Shabazadi and Wali Muhammad that the marriage of Shabzadi with Pinyo was an exchange marriage, that is Mst. Inayatan had given her daughter to the nephew of Wali Muhammad and in exchange Walt Muhammad had given Shabzadi to Inayatan's son. It frequently happens in this part of the country that when one of these girls is to leave her husband the other girl is also taken back. In this case Mst. Kali, the daughter of Mat. Inayatan was unhappy with her husband. This may have caused a corres ponding re‑action in the house of Mst. Inayatan. It was admitted by Wali Muhammad that this was the first occasion that he had come to see his daughter. It was on this occasion, according to the statement of Shabzadi, that she was beaten by her husband. Indeed, Wali Muhammad in his statement before the D. M. had stated that when he came back from the Bazar where he had learnt that his daughter was being beaten he found that his daughter had already been rescued by Faizu and Bagghu. In these circumstances it would be natural for Wali Muhammad to have his girl back. Wali Muhammad was asked as to why he had not gone to the Police station in Warah itself and make a report instead of travelling a long distance to Larkana to file a written complaint. The explanation that he gave was that he did not expect Justice from the Police at Warah. I find this explanation difficult to believe. Therefore, considering that it is admitted that both Kali and Mst. Shabzadi bad been restored to their parents it is reasonable to come to the conclusion that the anxiety of Wali Muhammad when he came to Warah was to somehow take his daughter away. It is quite possible that he was advised that one way of achieving it was to make the kind of com plaint which he did. I am, therefore, unable to accept the conten tion that the role of the respondent in this case was purely his devotion to duty. It may be added here that after I had heard the evidence I had adjourned the delivery of judgment until the complaint which had been filed by Wali Muhammad was disposed of. I did it for the reason that in delivering judgment in this case the decision of the complaint by Wali Muhammad may not be prejudiced. Those proceedings were quashed by an order of Khamisani, J, passed on 5‑12‑66, in Criminal Reference No. 15/66, upon a reference under section 438, Cr. P. C. made by the Sessions Judge, Larkana. The A. A.‑G. had supported the recommendation of the Sessions Judge for the‑quashing of the proceedings and the State Council before me Mr. Safdar Shah has strongly pressed for the conviction of the respondent for contempt. I

1. Having given my most careful consideration and having thought over the matter for long I have reached the conclusion that the manner in which the respondent acted was deliberately calculated to ,bring the Civil Judge into disrepute. This gentleman had vigorously and continuously taken some kind of action against the Police role in the administration of justice and had made a large number of reports and that there can be no doubt after what had happened between him and the respondent on 27th August 1963, and all that happened thereafter that Mr Abdul Jabbar had made himself very unpleasant to the local Police. Being a new man he may hive been very enthusiastic about his work but apart from that anything has been shown or suggested that he was doing all this for anything other than the performance of his duties as the Judicial Officer. The events that happened on the 21st of August made him a laughing stock as a judicial Officer. Considering that this was the only Court which dealt with both Civil and Criminal cases in the town of Warah the manna in which the show of investigation was made by the respondent was calculated to scandalise the Civil Judge who was asserting himself rather strongly against the local Police. In such cases as in this before the truth is known or proved a great deal may happen to the reputation of a Presiding Officer of a g Court. In this case, the journey from the Police station of the Police party deliberately by the side of the Court though, there was another route which was more proper and what happened thereafter could have no other purpose than to bring the Judge into contempt and disrepute. For all these reasons I hold that the respondent Muhammad Pinyal is guilty of contempt of Court He is convicted accordingly, and sentenced to pay a fine of Rs. 1,000 (Rupees one thousand) and on his failure to do so suffer simple imprisonment for one month. K.B.A. Accused convicted.