P L D 1977 Supreme Court 545 (PLP)

MUHAMMAD YAQUB ALI, C. J.--The sit police officers, appellants herein, were charged with contempt of Court for disobeying the order of the Lahore High Court passed on 11.7-1973, that Mr. Zahoor Ahmad, respondent, be not arrested without the permission of the Court. The charge was not denied and an apology was tendered by them in the following terms,- "We, the undersigned have fully understood the statement made by our counsel: We have instructed our counsel to make this statement. Each one of us tenders his apology and profoundest regrets. This apology is also unconditional and unqualified. We do not want to contest this matter. We shall never again do any such thing." They were convicted by a Division Bench of the High Court and sentenced to imprisonment till rising of the Court and a fine of Rs. 1,000 each or in default to undergo one month's imprisonment. This appeal under Article 18512) (c) of the Constitution is directed against the judgment and order of the High Court. 'The contempt proceedings arose in the following circumstances: Sheikh Zahoor Ahmad, respondent No. 1, resident of Multan City, is a member of a political party known as the Tehrik-Istiqal. On the 10th July. 1973 he moved an application before the High Court praying for bail before arrest. It was pleaded that on account of his political views the Police Administration had initiated a campaign of persecution against him and towards this end a large number of criminal cases have been registered against him in various pates of the country. The application was heard by a learned single Judge who issued a notice to the State for the following day. It was further directed that detailed information of all the cases registered against the respondent should be supplied. On the 11th July, 1973 the Assistant Advocate-General appeared before the Court and expressed inability to furnish the required information until sufficient time was allowed to collect the information called for. The learned Single Judge,, thereupon, directed that the application be kept pending until this information was laid before the Court, and that is the meanwhile the respondent should not be arrested in any case without the prior permission of the Court. On 28-9-1973 at about 10-30 a. m. the respondent and his fellow party members took out a procession in Kabirwala. Shah Alan Khan Niazi, appellant No. 6, who was at the relevant time S H. O. Karbirwala, arrested the respondent and some of his fellow party workers for committing the offences under section 153-A, P. P. C. and rule 49, Defense of Pakistan Rules, and confined there to the local Police lock-up. During the night Slier Ali, Inspector of Police, Police Station, Old Kotwali, Multan City ; Usman Khan, Sub-Inspector, Police Stations, Multan City ; Altaf Hussan, Sub-Inspector, police station old Kotwali ; Raja Yasrab Khan, sub-Inspector, Police Post Bohr Gate, Multan City ; and Iqbal Hussain, Assistant Sub-Inspector, Police Station, old Kotwali, appellants 1 to 5 herein. visited the Kabirwala Police Lock Up and allegedly subjected the respondent and his companions to torture. On the following day, i. e. 29-9-1973, at about noon, the respondent was released from custody. On the 2nd October, 19 i3, the respondent filed an application before the High Court for initiating contempt proceedings against the appellants. In his application the respondent alleged that at the time .of nit arrest he had informed the S. H. O., appellant No. 6, about the order of 11th July, 1973, prohibiting his arrest without permission of 'the Court and he had similarly informed appellants 1 to 5 when -they visited the Kabirwala Police Station. The respondent also alleged that on the night of the 28th September while in custody he was severely beaten and tortured by all the six appellants. In support of these allegations he produced a medico-legal certificate issued by the Assistant Medical Officer, Civil Hospital, Multan, who had examined him at 7-30 p. m. on the 29th September, The examination revealed that the respondent had been subjected to extensive beating and torture. OH the direction of the Court the Officer on Special Duty, Lahore High Court, re-examined the respondent on 3-10-1973 and confirmed the report of the Assistant Medical Officer. Consequent upon these allegations notices were issued to the appellants to show cause why they should not be punished for contempt. ??????????? In response the appellants filed separate written statements wherein they denied all the allegations. Appellants a to 5, disclaimed any knowledge of the respondent's arrest on 28-9-1873. They further denied that they had visited Kabirwala Police Station on the night of the 29th September or that they were in any manner responsible for torturing the respondent. Shah Alam Khan Niazi. S. H. O., appellant No. 6, admitted that he had arrested the respondent and several other members of the procession on the 28th September, because the processionists had become unruly and had threatened a breach of the peace He stated that when he arrested the respondent, he was not aware of the order of the High Court and as soon as this was brought to his notice, he released the respondent. The application was heard on 3-10-1973 by M. A. Zullah, J. who directed that the case be placed before a larger Bench. Consequently on '-2-1974, the matter came up before a Division Bench. Evidence in the case was recorded by M.. A. Zullah, J. On 12-3-1974, the appellants submitted a joint written statement to the Court in which they tendered an unqualified apology, threw themselves at the mercy of the Court and submitted that they did not contest the allegations made in the application by Mr. Zahoor Ahmad. The matter then went back to the Division Bench for further proceedings. It was contended on behalf of the appellants that the unqualified apology submitted by them was sufficient to make amends for the contempt as had been the practice of the Court in such cases. This argument found no favour with the Court. The learned fudges on a perusal of the case-law, held that the apology was tantamount to an admission that they had been guilty of contempt of the Court. It way further opined that an apology does not operate as a defence to the contempt though it may be considered as a mitigating circumstance in awarding punishment. The learned Judges took a very serious view of the conduct of the contemners and held that "their apology, even though it is unqualified, does not make sufficient amends for it". Despite the sever strictures made on the appellants' "conduct", the learned Judges treated the apology as a mitigating circumstance and convicted and sentenced them to imprisonment till the rising of the Court and a fine of its. 1,000 each. The alleged beating given to Mr. Zahoor Ahmad in the Police lock-up was considered a matter extraneous to the contempt proceedings mare particularly because Mr. Zahoor Ahmad had, in the meantime, filed a private complaint against the contemners. In support of the appeal it is contended that the High Court has erred in not accepting the unqualified apology tendered by the appellants and that ordinarily they ought to have bean let off with a mere warning. We do not find any merit in the appeal and agree with the view expressed by the learned Judges in the High Court that an apology does not furnish a complete defence to a charge of contempt of Court. It is only'' a mitigating circumstance and the appellant's have been dealt with by the High Court rather leniently on this score. Before parting with the case we would like to make an observation on the conduct of the appellants. Apart from a willful disobedience of the High Court's order to which they confessed in the written statement, the appellant compounded the offence by allegedly subjecting a citizen to torture From the evidence of the burn marks on the groin of the respondent, mentioned in the medico-legal certificate, one can easily visualise the extreme agony to which Mr. Zahoor Ahmad was subjected. Article 14 of the Constitution guarantees the dignity of the citizen and declares in clear terms that no citizen of Pakistan shall be subjected to torture. We are here faced with a situation where members of the law enforcing agency who are charged a with the duty to protect the citizen, have themselves perpetrated upon the' ward acts of inhuman torture. Words are not adequate to express our sense of horror at this outrage. It seems to us a positive affront that these officers should now seek our assistance to evade what we consider an inadequate punishment for their behaviour. We accordingly dismiss the appeal with the direction that the complaint filed by Mr. Zahoor Ahmad which is pending in the Court of a Magistrate at Multan since October, 1973, be transferred to the High Court at Lahore and tried in its extraordinarily original jurisdiction. S. A. H.?????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.