P L D 2002 Lahore 247 (PLP)

11. On 8‑2‑2002, both the respondents were present alongwith Mr. Maqbool Elahi Malik, learned Advocate‑General, Punjab. At the very outset, I asked the learned Advocate‑General as to in which capacity he was appearing, that is, either as a Public Prosecutor or as a defence counsel. His reply was that since the Secretary Health and the S.S.P., Lahore are involved in this matter and the Government is feeling very much embarrassed, hence he would argue the case on behalf of the accused‑respondents. The learned Advocate‑General firstly submitted that the Secretary Health is holder of Sitara‑i‑Imtiaz, both the convicts Dr. Nadeem Afzal Ashrafi and Dr. Hassan Wasim Afzal, the Secretary Health though are real brothers but are two separate entities and that Mr. Hasan Wasim Afzal took over the charge as Secretary Health on 14‑6‑2001 while the review petition of the convicts was dismissed by the apex Court on 13‑6‑2001. He submitted that soon after taking over the charge as Secretary, the respondent directed the then Additional Secretary to obtain certified copies of judgments of the Courts. Then on 19‑6‑2001, the Additional Secretary deputed Deputy Secretary to obtain the copies who onward directed the D.H.O., Rawalpindi to do the needful. On 27‑6‑2001, copies were applied which were received on 28‑6‑2001. According to the learned Advocate‑General, on 23‑7‑2001, the file was submitted to the Secretary Health who passed orders for suspension of the convicts and also issued notices under Removal from Service Ordinance, 2000. Suspension orders were issued on 23‑6‑2001. In reply to the show‑cause notice, Dr. Nadeem Afzal moved application for provision of copies of the inquiry. Learned Advocate‑General further submits that during this period, a self‑contained reference was moved to the Regulation Wing, S&GAD seeking opinion whether the convicted persons were to be afforded opportunity of defence or not. An inconclusive reply was received from the Regulation Wing and then so on and till 4‑2‑2002 the matter is still in between the departments. According to the learned Advocate‑General, the respondent Secretary did not delay the matter at any point of time and had been pursing the same diligently and there was no lapse on his part. Respondent Secretary also submitted that he was in not good terms with the convict for the last two years, so he had no interest to save him from the rigors of law. Further submitted that he in no way, has tried to thwart the orders of the Courts, in fact what was required of him, that he had done with full exuberance. As to appointment of Dr. Arshad Awan who appeared as a defence witness No. 1 before this Court, as a Chairman of the Committee, he submitted that it was done under the orders of the Health Minister and he does not figure anywhere.

12. As to conduct of the S. S. P., Lahore the learned Advocate‑General did not utter even a single word rather the S.S.P. himself submitted that on the direction of the Court, he deputed S.P. City to carry out the orders on the same day and that if there is any lapse on his part, he may be given apology.

13. I had asked time and again from both the respondents if they wanted to say anything more but they replied that whatever the learned Advocate General has submitted, that was enough.

14. Before proceeding with the matter, I would like to say that the real object to proceed for contempt is to maintain in Court the confidence of the people in general and the litigant public in particular. At this stage, I may with benefit reproduce the observations made in the case of the State v. Sami Ullah (PLD 1999 Lahore 131):‑‑ "Historically, the States and Courts of law are as ancient as orderly States. An organized State thrives on the civilized behaviour of its citizens and laws which are just and benevolent. In the scheme of organized State, Courts are the arbiters of disputes between citizens, inter se, and citizens and State. So, the fundamental obligation of Court is to keep scales of justice even. The powers of the Courts to punish their contemners emanates from the above sacred obligation. Majesty of Courts and supremacy of Rule of law are synonymous with orderly States regardless of their form. Hazarat Imam Ghazali in a famous work (ﻡﻮﻠﻌﻠﺍﺎﻳﺤﺍ) said 'A State can exist on (ﺭﻓﻜ) but not on injustice. So is the paramount necessity of wholly independent and effective judiciary ....

15. The main stress of the respondent‑Secretary is the affidavit purportedly sworn by Dr. Zainab Perveen, Associate Professor, Forensic Medicine, Fatima Jinnah Medical College who was the Member of the Board constituted by the then Secretary Health under the chairmanship of Dr. Muhammad Athar, Chief Chemical Examiner, Punjab, Lahore. She in her affidavit stated that she was forced to sign a fabricated report/documents by her senior colleagues as Member of the Medical Board. It is thus clear like anything that the affidavit was submitted by Dr. Zainab Perveen before the Secretary Health with ulterior purpose and in connivance with him to over throw the judgment of this Court. This affidavit was never produced before the Hon'ble Supreme Court because it does not find mention in the order of the Hon'ble apex Court. If what has been stated by Dr. Zainab Perveen in her affidavit allegedly sworn on 8‑1‑2002 was correct though I have complete doubts about its genuineness and also of the date, she could have appeared before this Court. To my mind, all this seems to be manoeuvring. Had this affidavit even been brought to the notice of the Hon'ble Supreme Court, there must have been some reference about that. Further, if it was so, as alleged by Dr. Zainab Perveen in her affidavit, then why she kept mum for such a long time. Her conduct is definitely criminal and calls for severe punishment at departmental level. Though it is not proper to further dilate on a subject which is not pending before me but the conduct of the lady doctor by virtue of which once again the whole Government machinery was put into motion has totally been ignored and till date, against this Government servant who as per her own assertion did sign the document under coercion, but no disciplinary action under the Ordinance, 2000 has been initiated whatsoever. The learned Advocate‑General, Punjab also laid much stress on the instructions contained in para. 3 of S&GAD Letter No. S.R.O.I(S&GAD) 1‑71/74 dated 26‑10‑1975. In the same S.R.O., it has also been provided that "but if in the opinion of the authority competent to pass the order of dismissal, removal or reduction in rank, the grounds which led to his conviction justify imposition of any of these penalties, that authority can pass such an order and where such a decision is taken on the ground of conduct which led to the conviction of the person concerned in a Court of law, the order can be passed without giving the person concerned a show‑cause notice". I really doubt that the learned Advocate‑General, Punjab was not aware of The Punjab Removal From Service (Special Powers) Ordinance, 2000 and 2001 which came into force on 18‑9‑2000. Section 3 sub‑clause (b) of the said Ordinance reads as under:‑‑ "Provided that no such opportunity shall be given where the competent Authority is satisfied that in the interest of security of Pakistan or any part thereof it is not expedient to give such opportunity: Provided further that no such opportunity shall be given where the accused is to be punished or removed from service or reduced in rank on the ground that of having been convicted for an offence involving moral turpitude or financial irregularity which has led to a sentence of fine or of imprisonment or where the competent Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to give the accused an opportunity of showing cause. " The words "moral turpitude" have been defined in Law Terms and Pharases Judicially Interpreted with Legal Maxims and Foreign Legal Words and Phrases in ordinary usage by Sardar Muhammad Iqbal Khan Mokal. The same is reproduced: "Tests laid down by A.P. Srivastava, J. are (1) whether the act leading to a connection was such as could shock the moral conscience of society in general; (2) whether the motive which led to the act was a base one; (3) whether on account of the act having been committed the perpetrator could be considered to be a deprived character or a person who was to be looked down upon by the Society. " In the case of Saudagar Ali v. Chairman, District Council, Multan (PLD 1963 (W.P.) Lahore 601) it was held as under:‑‑ "The expression 'moral turpitude' is not defined in the Basic Democracies Order, nor in another, statute but as generally understood, anything which is done contrary to the good principles of morality involves moral turpitude, i.e. anything that injures the moral fiber of a person and lowers him down in moral values. In Ramanatha Aiyar's Law Lexicon the phrase is defined as follows:‑‑ 'Anything done contrary to justice, honesty, principles, or good morals; an act of baseness, vileness, or depravity in the private and social duties which man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man'. A term not clearer defined.‑‑What constitutes moral turpitude, or what will be held such, is not entirely clear. A contract to promote public wrong, short of crime, may or may not involve it. If parties intend such wrong, as where they conspire against the public interests by agreeing to violate the law or some rule of public policy, the act doubtless involves moral turpitude. Everything done contrary to justice, honesty, modesty or good morals is done with turpitude, so that embezzlement involves moral turpitude." In the precedent case, the act of obtaining transfer of the evacuee land without making a declaration was held to be moral turpitude. In the instant case, both the doctors were convicted under section 192, P.P.C. which conviction was maintained by the Hon'ble apex Court. Section 192, P.P.C. may be reproduced:‑‑ "

192. Fabricating false evidence.‑‑Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstances, false entry or false statement may appear in evidence in a judicial proceedings, or in a proceeding taken by law before a public servant as such, or before an arbitrator that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceedings is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceedings, is said 'to fabricate false evidence'. " I am, thus, of the considered opinion that the act of the convicts doctors amounted to moral turpitude. Over and above this, section 11 of Ordinance IV of 2000 reads as under: ‑‑ "

11. Ordinance to override other laws.‑‑‑The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Punjab Civil Servants Act, 1974 (VIII of 1974) and the rules made thereunder and any other law for time being in force." In the instant case, both the convicts were tried by this Court. They were given full opportunity to defend themselves and they produced the best possible evidence at their command to defend themselves. For the sake of both the convicts so that no injustice is done to them. Two Boards were constituted, one by the Medical Superintendent, Mayo Hospital, Lahore and the other none else but by the Secretary Health but since the convicts failed to establish their innocence, this Court pronounced the verdict of guilt against them which was upheld by the Hon'ble Supreme Court of Pakistan. The verdict of conviction having been upheld by the august apex Court, there was absolutely no necessity later on to order for any inquiry. The conviction having been maintained by the Hon'ble Supreme Court, the matter cannot be left to the discretion of the Secretary concerned but he was under a legal obligation to terminate the services of the convicts because the conviction by all means is a blot on the service career of the convicts and no notice was required to be issued in the peculiar facts and circumstances of this case. Above this, the judgment of the Hon'ble Supreme Court was final in this shape and as such no further inroads can be made into it for making out a lame excuse viz. to save the near and dear ones. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 caters for such‑like situation by saying that all citizens are equal before law and are entitled to equal protection of law. This act of the respondent‑Secretary tantamounts to gross contempt of this Court and the Hon'bie Supreme Court. It is a dare devil act on the part of the respondent‑Secretary. He is also guilty of frustrating the order of this Court and the Hon'ble Supreme Court. To my mind, it was a cunning attempt on the part of the respondent‑Secretary. At this stage, I may advantageously reproduce the concluding paragraph, that is, para. 1 I of the summary sent to the Governor on 13‑9‑2001 on the basis of the affidavit sworn by Dr. Zainab Perveen, The same reads as under:‑‑ "Since this case involves questions of law, it is being routed through the Law Department for their comtrients, for if the prima facie guilt of the senior doctors as established in the preliminary inquiry is confirmed, the case would warrant a remission of sentence by the competent authority." (Underlining is mine) A bare perusal of the above‑quoted para. would show that all this was being done just to frustrate the order of conviction passed by this Court and upheld by the apex Court of the country. Moreso, it is interesting to note that according to Rules of Business the Secretary is the official head of the Department and is responsible for its efficient administration and the discipline but the aforesaid summary was submitted by the Additional Secretary (Adorn.) to the Minister for Health, bypassing the Secretary. There is no mention of the fact as to whether the Secretary was on leave or was not available for any reason. This all smacks of cunningness and. mala fide just to help out a convict who happens to be real brother of the Secretary Health. All this exercise was got done to find inroads in the judgments of the superior Courts rather amounts to sitting over the judgments and in this manner he wanted to have done which could not otherwise have been done in accordance with law. The conduct of the respondent‑Secretary is in violation of the command of Article 190 of the Constitution which ordains that all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court. It has come on record that show‑cause notices were sent by the Health Department at the home addresses of the convicts. It means that the Secretary Health was fully aware of the fact that both the convicts in spite of their conviction having been maintained by the.Hon'ble apex Court have not surrendered themselves. Had the Secretary Health believed in rule of law, he should have asked his convict brother and his co‑accused to surrender but he has not done so. It was only when this Court took notice of the news item appearing in the dailies with the permission of Hon'ble the Chief Justice that both the convicts were taken into custody. In view of all these glaring facts on the face of the record, it does not lie in the mouth of the respondent‑Secretary to say that he acted in accordance with law and did not show any favour. In my considered opinion he had been pulling the wires while sitting behind the curtain. There is also a letter from Professor Dr. Aftab Ahmad, President, Pakistan Medical Association, Lahore dated 31‑12‑2001 addressed to Hon'ble the Chief Justice alongwith Press clippings. This letter was being processed in the office of the High Court and now is part of record of this case, The letter written by President of Pakistan Medical Association reads as under:‑‑ "May I bring to your kind notice the press clippings of the ‑daily 'Dawn', Lahore dated 24‑11‑2001, the 'Dawn', Lahore dated 8‑12‑2001 and the daily 'The News', Lahore dated 29‑12‑2001 which depict clearly how the beaurocracy of Health Department, Punjab is flouting the decisions of the apex Courts of Pakistan. Incidentally the present Health Secretary, Punjab Mr. Hassan Waseem Afzal is the elder brother of Dr. Nadeem Afzal who was initially convicted 5 years rigorous imprisonment and a fine of Rs.20,000 for a fabricated medico‑legal report by Mr. Justice Khawaja Muhammad Sharif of Lahore High Court (No.2619/M/2000). The Supreme Court of Pakistan later reduced it to one year rigorous imprisonment and fine of Rs.10,000 on May 14, 2001 (Crl.A.No.7/2001). But‑ Secretgrry Health is fully protecting his brother who is still drawing salary from the Health Department and has not been arrested. The Secretary Health has presented distorted facts about the decisions of the Courts to the Governor of the Punjab. He thus, managed to start an inquiry under Removal from Service Ordinance, 2000 of the doctors who were Members of the Board, which reviewed the Medico‑Legal Report given by Dr. Nadeem Afzal." The next submissions made by the learned Advticate‑General was, that it was a chance that present Secretary Health was real brother of one of the accused and was posted just a day after the dismissal of the review petition by the apex Court and during all this period, according to him, he has been doing honestly all the acts which the status of his office so demanded. I think, it is a far‑fetched reality to agree with the Advocate General as it is against human nature that a real brother would not come to the rescue of his younger brother when the elder was a person in authority specially in our society. It is very important to note that in para. 6 of the reply submitted by the Secretary he has submitted that the convicts were put under suspension with effect from 13‑6‑2001. Conviction was recorded against the two convicts by this Court on 5‑1‑2001. Appeals before the Hon'ble apex Court were dismissed on 14‑5‑2000 though with reduction in the quantum of sentence and the amount of fine. Review petition was dismissed on 13‑6‑2001. The convicts thus would be deemed to have been convicted on 5‑1‑2001 and not on 13‑6‑2001. This all was done intentionally and with mala fide. From the file produced by the learned Advocate‑General, Punjab at para. 83 of the noting part, it is clear that Dr. Nadeem Afzal was placed under suspension with effect from 5‑1‑2001 and was reinstated on 3‑3‑2001. Then again on 23‑7‑2001 he was placed under suspension with effect from 13‑6‑2001. It is not understandable as to how the convict doctor was re instated on 3‑3‑2001 and then placed under suspension on 13‑6‑2001. It may be noted that sentence of the convicts was suspended by the Hon'ble Supreme Court on 16‑1‑2001 but the judgment remained in the field. It is thus established that right from the date of final verdict of the Hon'ble Supreme Court, there was somebody who was supervising and. monitoring the whole file from one place to another with the result that eyes were intentionally closed when Dr.Muhammad Arshad Awan D.W.1 was appointed as Chairman of the Inquiry Committee who had already appeared as a defence witness to support their version itself confirms the happening subsequently that efforts were made through hidden hands to absolve the convicted persons while acting in a mala fide manner and also by committing E illegal omissions. Apart from these illegalities and mala fides committed by the Secretary Health, he also caused a great loss to the State Exchequer by paying the convict doctors the salaries from 5‑1‑2001 till today. I wonder how the Members of the second Board constituted under the direction of the Additional Secretary Health are being penalized when the 2nd Board affirmed the finding of the first Board. I am purposefully refraining myself from making any further comments. The S.S.P., Lahore had become a tool in the hand of the respondent‑Secretary in not arresting the convicts though wrrrants were issued against them by this Court being the trial Court. It is unfortunate that he did not realize his responsibility towards discharge of his statutory legal duties rather he put spanner in the wheels of justice. He in order to shift his responsibility, made his juniors scapegoats by suspending them and initiating disciplinary proceedings. He being the Supervisory Officer of the District Police was under a legal obligation to keep a watch on his subordinates specially when news items were appearing in the daily newspapers a clipping of which I am sure, must have reached him through his Public Relations Officer. I really wonder fromwhere the A.S.‑I. Muhammad Ashiq, came to know that the convict doctors have been dismissed from service when in fact till today, their services have not been terminated. Had the S.S.P., Lahore taken a little pain to care for the news items appearing in daily newspapers, the position of lawlessness would not have prevailed in not arresting the convicts. It was only on 29‑1‑2002 that a special team has been constituted by the S.S.P., Lahore under the direct supervision of the S.P. (City) when on 28‑1‑2001 this Court took cognizance of the matter. Prior to this, he had been watching the drama as a silent spectator for the last more than six months. According to reply submitted by the S.S.P., both the convict doctors have been arrested on, 28‑1‑2001 and 29‑1‑2002. It means that the convicts were being not arrested as per wishes/desire of the S.S.P. The act of the S.S.P. is being taken by this Court as a sabotage to judicial decisions of the superior Courts. In the case of State v. Sir Edward Snelson K.B.E. Secretary to Government of Pakistan, Ministry of Law (PLD 1961 (W.P.1 Lahore 78) it was observed as under:‑‑ "When the Central Government of Pakistan is a party in a proceedings before a Court of law, however, humble the Court may be, it has no better rights than any other party to the proceedings before that Court," Now, I would take up the apology tendered by the respondents. First of all, both the respondents never tendered the apology in their replies in the , first instance. It was only on the pointation of the Court after completion of the proceedings when in the presence of the Court, both the respondents tendered their apology. The apology tendered in the writing by respondent‑Secretary reads as under:‑‑ "I hereby tender my unqualified apology for any lapse on my part in these proceedings." The apology tendered by the S.S.P. reads as under:‑‑ "I tender unconditional apology for any fault at my part." So far as apology tendered by the respondents is concerned, their lordships of the Hon ble Supreme Court in the case of Sher Ali and others v. Sheikh Zahoor Ahmad (PLD .1977 Supreme Court 545) ruled out that an apology does not furnish a complete defence to a charge of contempt of Court. In the case of Shahid Orakzat v . Pakistan Muslim League (Nawaz Group) and 8 others (2000 SCMR 1969) it has been ruled that tendering of unconditional apology amounts to admission of the charge and that the apology must be offered at the earlier stage of the contempt proceedings and may not be postponed till the fag‑end of the proceedings, the apology must be unconditional, unreserved and unqualified, the apology should not only appear but must also satisfactorily represent sincere and genuine remorse and should not be half‑hearted or mere formality and that the contemner should not endeavour to justify his conduct. Seen the apology tendered by the respondents in the light of principles laid down by the Hon'ble Supreme Court, first of ail, it was never offered at the earliest, rather it was only on the pointation of the Court. The apology does not reflect sincere and genuine repentance and is half‑hearted. The respondents have tried to justify their conduct first by arguing the case at full length. To my mind, it was fractured apology. The object of awarding punishment to a person is two‑fold, namely, that he should be sentenced for violating the law and secondly a deterrence in the like‑minded person who without caring for the consequences do wrongs and violate the law. After having examined the replies submitted by both the respondents and the submissions made by the learned Advocate‑General, I have come to the conclusion that guilt against both the respondents stands proved beyond any shadow of doubt. So, first of all I would take up the case of respondent Secretary Health. He is found to be guilty of gravest form of contempt of this Court and the Hon'ble Supreme Court. He has also misused his official L capacity in order to save his brother and his co‑accused. His act amounts to bring the authority of the Courts into disrespect, disrepute, interference, and ,prejudicing the process of law. So, he is convicted under sections 3 and 4 of the Contempt of Court Act read with Article 204 of the Constitution and sentenced to three (3) months S.I. with further direction to pay Rs,5,000 as fine, in default thereof to undergo S. I. for one month. So far as S.S.P., Lahore Aftab Ahmad Cheema respondent is concerned he is convicted under sections 3/4 of the Contempt of Court Act read with Article 204 of the Constitution and sentenced to undergo 15 days' M S.1, with further direction to pay fine of Rs.1,000 in default 7 days' S.I. At this stage, while showing magnanimity, I am inclined to suspend the sentence of the respondents for 10 days by virtue of application of 382‑A, Cr.P.C. to enable them to file appeal against this order before the proper forum subject to their furnishing bail bonds in the sum of Rs.10,000 with one surety each in the like amount to the satisfaction of the Deputy Registrar (J) of this Court.‑ Before parting with this order, I am at pains to note that Mr. Maqbool Elahi Malik, learned Advocate‑General, Pubjab who is a very Senior Advocate and has remained as Advocate‑General, Punjab for 2/3 times before should have in fact come in the aid of criminal administration of justice and to maintain the dignity of the Courts but instead he opted to become a defence counsel. Moreover, while doing this, he was definitely on the wrong side of law. N.H.Q/S‑363/L Accused convicted.