P L D 2002 Supreme Court 1033 (PLP)

Photostat of the show‑cause notice issued to him by his lordship the Hon'ble Senior Puisne Judge is annexed herewith. It is humbly requested that the reply may kindly be accepted and notice vacated. (Sd.) (Muhammad Sadiq Leghari), Registrar."

6. After considering the pleas thus raised by the appellant, the learned Bench came to the conclusion that an attempt had been made to give justification for wilful disobedience of the lawful order of the Court, therefore, the apology tendered by him could' not be treated to be unqualified. It was also concluded that the appellant who was a responsible Judicial Officer of the grade of District Judge had treated the order of the highest Court of the Country in a routine manner as stated by him in his reply, though it was his bounden duty to have cared and taken notice of the process issued to him for the compliance of the order received by him on 11‑4‑2002. It was also observed that every mail which was sent for the perusal of the Registrar was not to be disposed of in a casual manner and this trend of non‑compliance and disobedience of lawful judicial orders and ignoring and treating the same lightly taking it for granted is on increase by the officials performing administrative duties considering that this Court being the apex Court of the Country, the appellant being Judicial Officer should have been more vigilant and careful in making compliance of the order of the Court rather than treating the same in a routine and casual manner. An exception was also taken of the act of the appellant to proceed on leave which according to learned Bench was also not stated to be of emergency nature without making any compliance with the order and he awakened from his sleep after receipt of the reminder which according to learned Bench showed his disrespect and disregard to the orders of this Court. It was ultimately concluded that the conduct on the part of the appellant is nothing but wilful disobedience of the lawful order passed by this Court which amounted to gross contempt on his part and, his so‑called unconditional apology with justification could not be termed to be genuine and sincere but mechanical one which would not be sufficient itself to purge the contemner's non‑compliance and disobedience amounting to contempt.

7. The learned Bench held that in these circumstances, the reply given by the appellant was neither bona fide nor any sincere unconditional apology had been tendered for the wrong done which had impaired the dignity and authority of this Court which being very much important for the supremacy and majesty of the law. The act of the appellant was also held to amount to interference with the administration of justice for which no sincere regret or unconditional apology had been tendered. In the alternative, it was held that even if the apology tendered by the appellant was considered to be sincere and unconditional showing repentance of his behaviour/conduct, it would only be a mitigating circumstance for the purpose of awarding lesser punishment to the contemner. On the basis of these alleged findings, it was held that the appellant was guilty of contempt of Court, therefore, he was punished and awarded sentence as aforementioned.

8. We have heard learned counsel for the appellant and the learned Attorney‑General and examined the findings recorded in the impugned judgment by the learned Bench and perused .the record appended with his appeal. It may be observed before entering upon discussion on the merits of the case that as is clear from the initial order dated 15‑5‑2002 passed by the learned three members' Bench of this Court in pursuance of which the proceedings were initiated that notice for contempt of Court was not issued whereas the appellant was directed to show cause as to why action for wilful disobedience of lawful order of the Court be not initiated against him, therefore, after considering the pleas raised by the appellant in his reply to the show‑cause notice, it was required that a decision should first have been taken by application of judicial mind to the facts and circumstances of the case alongwith the material brought on the record while considering the pleas raised by him as to whether it was a fit case for proceeding against him for contempt of Court and in case the Bench had decided to proceed further, the procedure as laid down in the Contempt of Court Act, 1976 and in particular section 7 thereof had to be followed in that a formal show‑cause notice of contempt containing charge‑sheet in clear terms was to be issued and inquiry held and thereafter decision taken whether the appellant was guilty of contempt of Court.

9. Though the above reasons were sufficient normally to remit case to the learned Bench for proceeding further but on examination of the record for reasons to follow, it is not necessary to do so, for it would be an exercise in futility and no useful purpose shall tie served, as it can be decided finally in this appeal. We have decided to adopt this course in the interest of justice for the reason that under the Contempt of Court Act, order of a Bench of this Court of issuance of show‑cause notice itself is appealable which is also subject‑matter of this appeal as the appellant has prayed for discharge of the notice issued by the learned Bench on 15‑5‑2002 in the matter. This is apart from the fact that in appeal, the entire matter is reopened and the Appellate Court is fully empowered to decide the matter finally.

10. The question which arises for consideration in this case is whether the conduct of the appellant if considered with the attending circumstances and the facts established on the record did constitute .an act of contempt of Court as envisaged by Article 204(2) of the Constitution and the provisions of the‑ Contempt of Court Act, 1976. We may observe here at the very outset that a distinction has to be made between a case of contempt of Court based on defiance or violation of a judicial order in the nature of temporary injunction by a party whereby such party was restrained from acting in .a particular manner but in spite of service of notice or having come to know of the passing of such order, acts in a manner to alter the position to his advantage so as to frustrate the temporary injunction and an act of mere non‑submission of a report called for by the Court by an Officer of the Court. In the former case, the Court would take strict view and mere act of defiance of the judicial order would by itself justify raising of presumption that the doer of the act was guilty of contempt of Court unless he proves otherwise whereas in the latter case, it has to be determined on application of judicial mind as to whether the appellant 'deliberately did not submit the report on account of having personal interest in any of the parties to cause damage to the other party in the case in which the report was called or had any personal interest which, if proved or established would make the act of non‑submission of the report mala fide. In the absence of any of these factors and element of contumacy, his conduct could not be held to have suffered from mala fides or contempt of Court. It has been held in the case of Behawal v. The State PLD 1962 SC 476 that mere non‑compliance of an order, in the absence of contumacy, would not amount to contempt of Court.

11. Keeping in view these broad principles, we now proceed to determine whether in the present case, the appellant's act of non‑submission of report to this Court amounted to contempt of Court as held by the Bench.

12. It is manifest from order dated 28‑3‑2002 passed by this Court whereby report was called from the High Court that no date was fixed for the submission of the same rather it was directed that the case would be taken up in the next session of the Court at Karachi Registry. From this, an ordinary prudent man was justified to entertain a bona fide belief that he had ample time granted by this Court for the submissions of the report. The explanation of the appellant was that this order was placed before him by the concerned official of the High Court on 11‑4‑2002 and he marked the same to the concerned Assistant Registrar with the other mail to process it after which, the matter was placed before him on 9‑5‑2002 on which he immediately asked the Assistant Registrar to explain the delay. Since the report was called on such a matter which was within the knowledge of the learned Judges who had heard the case therefore he discussed the matter with the learned Chief Justice of the High Court before the submission, of the report who directed him to consult Mr. Justice Mushir Alam, learned Judge of the said Court who was the author of the judgment which he could not do on 10‑5‑2002 being Friday. He, however, examined the Cause List of 14‑1‑2002‑and found that Miscellaneous Application No.5888 of 2001 was fixed before the learned Chief Justice for orders. On 11, 12, 13 and 14 May, the appellant was on casual leave due to his personal matter at his village and the matter was to be attended and dealt with by the M.I.T. Since the case was to be discussed with Mr. Justice Mushir Alam, therefore, the M.I.T. did not make any progress in this direction: The appellant resumed the duty on 15‑5‑2002 and discussed the matter with Mr. Justice Mushir Alam who examined the record and advised him (appellant) to seek few days more for submission of a clear and definite report as to whether the case was heard by a Division Bench. It was clearly stated by the appellant that had he been made known that the date had already been fixed in the case by this Court, he would not have left the matter while proceeding on casual leave.

13. These facts were mentioned in the reply by the appellant to bring to the knowledge of the Bench as to the manner in which the matter was dealt with and processed not with a view to justify the inaction on his part or qualify the unconditional apologies tendered by him in the earlier part of the report. Neither there is any finding that the facts as stated by the appellant in his reply were factually wrong or that there was any contumacy on his part based on ulterior motives or mala fides, therefore, we are of the considered view that keeping in view the facts that the appellant having been not found to have any personal interest in the matter, as such, had no reason to delay the making of the report with a view to benefit any of the parties in the case. It is also pertinent to mention here that the matter on which the report was called was a delicate one that the appellant could not make any report unless he had consulted the learned Judges in the High Court who had dealt with the case who only knew the factual position. It was stated by the appellant in the reply that. Mr. Justice Mushir Alam had advised him to seek further time so that his Lordship may be able to submit, proper reply based on the facts leading to the disposal of the said case. In this view of the matter, the appellant in no manner could be held to be guilty of contumacy or to have shown any disrespect or dealt with the case casually as held by the learned Bench.

14. The question as to whether the appellant should have been granted casual leave in the circumstances was a matter not within the scope of the present proceedings, for the competent Authority of the appellant in the matter of grant of leave, etc. was the learned Chief Justice of the High Court and if his request for proceeding on leave had been granted,' the justification or otherwise of the same was not open to any scrutiny in these proceedings and no mala fide could be attributed to the appellant while deciding tire question of non‑compliance of the order.

15. The appellant is an honest judicial officer who has 27 years' meritorious service, in the Provincial Judiciary with unblemished record and there was no reason to presume or hold that he would think of showing disrespect to the orders of this Court. It is also evident from the record that in relation to reminder issued by this Court for submission of report when the Bench was available at Karachi Branch Registry, the appellant directed Mirza Jamal Ahmad, Junior Clerk to give his explanation who was responsible, for delay in placing the same before him against whom, charge‑sheet has also been issued and disciplinary proceedings are pending which also establishes the bona fides of the appellant.

16. After examining the material placed on the record and considering the attending circumstances, for the foregoing reasons, we are satisfied that the appellant was not guilty of any contumacy and delay in submission of the report was caused by circumstances not fully within his control and his conduct did not constitute contempt of Court as contemplated by Article 204 of the Constitution and the Contempt of Court Act, as such, it was not a fit case for issuance of formal show‑cause notice of contempt of Court much less punishment.

17. For the foregoing reasons, we 'accept this appeal, set aside the impugned judgment dated 17‑7‑2002 and discharge the notice issued to the appellant vide order dated 28‑3‑2002. (Sd.) MUNIR A. SHEIKH, J. (Sd.) SH. RIAZ AHMAD, C.J (Sd.) NAZIM RUSSIAN SIDDIQUI, J. (Sd.) IFTIKHAR MUHAMMAD CHAUDHARY, J. (Sd.) QAZI MUHAMMD FAROOQ, J. (Sd.) MIAN MUHAMMD AJMAL, J. (Sd.) JAVED IQBAL, J. (Sd.) ABDUL HAMEED DOGAR J (Sd.) TANVIR AHMED KHAN, J. (Sd.) SARDAR MUHAMMAD RAZA KHAN, J (Sd.) KHALIL‑UR‑REHMAN RAMDAY, J. (Sd.) MUHAMMAD NAWAZ ABBASI, J. (Sd.) FAQIR MUHAMMAD KHOKAHR, J. RANA BHAGWANDAS, J.‑‑I have appended a separate note. RANA BHAGWANDAS, J.‑‑I have had the privilege of perusing the judgment authored by my learned brother and senior puisne Judge Munir A. Sheikh on behalf of Full Bench. I agree with the conclusion arrived at but would like to add a few lines of my own.

2. Facts relating to the petition, which came up for hearing within three days of its institution, need not be reiterated as the same have already been incorporated. One of the most important powers of Court of law is its power to give orders and make directions. Very often it has to make an order commanding a person to do something or restraining him in some way. If such person disobeys the command of the Court latter has one weapon in its armoury which it can use. It can punish him for contempt of Court either by fine or by imprisonment. This kind of contempt has characteristics which are common to all contempts of Court. Proceedings in contempt strictly speaking are neither civil not criminal. These are proceedings sun generis in nature. It may be pertinent to observe further that every failure to comply with an order may not amount to be criminal contempt warranting action therefore. There may be cases where there are justifiable reasons or causes for non -adherence of an order a Court which would depend on the facts of each case. There may also cases where non‑compliance of the order was not wilful or deliberate. Likewise there may be instances where compliance with an, order of a Court may be beyond the scope of authority of a person to whom it is directed. Each case, therefore, has to be examined in its proper perspective having regard to the facts and circumstances of a case. Where an order was passed by a superior Court calling upon a person to do a particular act, it is incumbent upon such person to report prompt compliance rather than to treat it lightly or casually. If the conduct and attitude of a person bound by an order of the Court be such which may be considered as contumacious or amounting to disrespect', he may be proceeded for contempt. Cases would, however, arise where the contemner, at the first available opportunity, surrenders himself at the mercy of the Court and offers an unconditional and sincere apology when justifying his conduct. It would thus appear that wilful disobedience to a judgment or order requiring a person to do an act or to abstain from doing anything is a contempt punishable by attachment or committal. It is well‑settled that an order passed by a Court of law must be implicitly observed, every diligence must be exercised to obey it in letter and spirit, and any proceedings resulting in a breach would tantamount to an. act of contempt. The law takes a very serious view of contempt of the orders of the superior Courts by a person including a subordinate Court. A half‑hearted apology tendered at .a late stage while a plea of justification has been taken in the written statement of a respondent, could not be regarded as sincere one' In the case in hand it appears, that the conduct of the appellant in complying with a lawful order of this Court was neither diligent nor prompt in that no attempt was made to submit the interim report on receipt of initial order of this Court dated 28‑3‑2002 calling for a report. This order was received in the office of the appellant on 6th April, 2002 yet no response was received till 16‑5‑2002 when the petition came up for hearing before this Court. In the meanwhile a reminder letter was issued to the appellant by the Assistant Registrar of Karachi Registry vide letter, dated 4th May, 2002 received in the office of the appellant on 8‑5‑2002 but, as observed, without any response. It appears that entire exercise was undertaken after the receipt of show‑cause notice dated 15‑5‑2002 requiring the appellant to appear in person alongwith requisite report and to show cause as to why action for wilful disobedience of lawful order of this Court be not initiated against him. The fact that the letter of this Court was endorsed to the office in routine would clearly tend to show that the order of this Court was treated casually and not diligently. In terms of Article 190 of the Constitution all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court. Be that as it may appellant having offered an unconditional apology at the top of his reply to the show‑cause notice followed by narration of facts leading to delay in the submission of the requisite report requires serious consideration. I think there was no apparent and obvious reason or mens rea on the part of the appellant to have wilfully flouted the order of this Court, warranting stern action for contempt. I am, therefore, of the view that unconditional apology of the appellant tendered at the earliest could have been accepted, This would be consistent with the provisions of section 4 of the Contempt of Court Act, 1976 (hereinafter referred as the Act) which, inter alia, stipulates that a person accused of having committed contempt of Court may at any stage submit an apology and the Court, if satisfied with its bona fides, tray discharge him or' remit his sentence.

5. Adverting to the show‑cause notice dated 15‑5‑2002 no doubt such order is appealable under section 10(2) of the Act, 1976, such appeal must be filed within thirty days of the impugned order before this Court. In the present case show‑cause notice dated 15‑5‑2002 having merged in the final judgment dated 17‑7‑2002 passed by learned two members Bench of this Court would loose its efficacy and there would be no occasion for setting aside the same at this stage. I may not be misunderstood to say that the vires of the said notice cannot be legally examined in Intra‑Court Appeal by this Court or that this Court is not competent to condone the delay in an Intra -Court Appeal. Fact of the matter remains that once an appeal has been fled against a final judgment initial show‑cause notice would pale into insignificance. In the metro of appeal appellant has impugned the vires of the final judgment dated 17‑7‑2002 and simultaneously prayed for vacating the show‑cause notice dated 15‑5‑2002 against which appeal preferred on 19‑7‑2002 was patently out of time. However, instead of show‑cause notice dated 15‑5‑2002, order dated 28‑3‑2002 calling for a resort has been discharged. (Sd.) RANA BHAGWANDAS; J. M.B.A./M‑627/S Appeal accepted.