P L D 1955 Lahore 229 (PLP)

ABDUL Aziz KHAN, J.‑On the 23rd of September 1954 a petition was presented to this Court by Ch. Ghulam, Jilani praying that a notice should be issued to Mr. Abate Hayee Khan, Magistrate 1st Class, Lyallpur, to show cause why he should not be committed to prison or otherwise dealt with in accordance with law for deliberately and wilfully disobeying the order of this Court passed in Criminal Miscellaneous No. 551 of 1954 dated 23rd of July 1954 and there committing a contempt of this Court. The admitted facts of the case are that a case w registered under section 436 of the Pakistan Penal Code by the City Police Lyallpur on the 22nd of June 1954 at the instance of Ghulam Jilani Petitioner against one Qasim Beg who, after his arrest, was released on bail by the Additional Distrkr Magistrate on the application of the Public Prosecutor, t) t learned Sessions Judge, by his order dated the 15th of rule, 1954, cancelled the order of the Additional District Magistracy enlarging the accused on bail. Qasim Beg (accused) came to this Court against this order of the learned Sessions Jud D The Honourable the Chief Justice upheld the order of the learned Sessions Judge and rejected Qasim Beg's petition on the 23rd of July 1954 observing. "I would leave the question of bail to be decided by the trial Magistrate after some evidence is recorded." The Ad ditional District Magistrate fixed the case for the 7th of August 1954 for recording the evidence of the prosecution witnesses and summoned them for that date. On the 7th of August 1954 the Additional District Magistrate transferred the case to the Court of the respondent (Mr. Abdul Hayee Khan) and directed the prosecution witnesses to appear in the respondent's Court on the same day. While transferring the case to the respondent's Court, the Additional District Magis trate noted the presence of Abdur Rehman and Ghulam Jilani P. Ws. and directed them to appear in the respondent's Court on the same day. When the respondedt took up the case, Ghulam Jilani P. W. alone was present. The respondent pro ceeded to record the statement of Ghulam Jilani P. W. but the counsel for the accused prayed that the prosecution evidence should not be recorded piece‑meal. Granting the prayer of the counsel for the accused, the respondent ad journed the case for the 1st of September 1954 and issued non bailable warrants against Abdur Rahman P. W. who, in spite of the orders of the Additional District Magistrate, failed to appear before him. It appears from the record that after this order, the accused put in an application for being released on bail. The respondent fixed the 9th of August 1954 for the decision of this application. On the 11th of August 1954 the respondent released the accused on bail. It would be useful to reproduce the following passage from his order :‑‑ "Today I have again heard the arguments of the learned counsel for the defence. He has brought to my notice the delay in lodging the F. I. R., previous enmity of the pro secutor with the accused and the intimacy of the eyewit nesses of the case with the prosecutor. I have gone through the police zimnis and the F. I. R., in the light of the argu ments addressed in that behalf. I am not in a position at this stage to fully appreciate the cogency of the arguments of the learned counsel for the defence. But there is definitely a new ground for considering the question of bail of the accused in this Court, and that is, that all the principal witnesses were duly served and made default in appearing in this Court on the previous date, i.e. 7th August 1954, and the case was therefore adjourned to a long date. This case could not be fixed on any date earlier than l st September 1954 due to heavy fixtures on dates anterior thereto. The prosecutor may or may not have incited this non‑appearance on the part of the witnesses, but the fact remains that case had to be adjourned to a long date and on that court alone it would not be fair to keep the accused in long confinement. Hence I confirm the interim bail to which the' accused was already admitted. The accused is ordered to remain at large on furnishing a new bail bond of rupees two thousand with one surety in the same amount". On the 12th 'of August 1954 the Public Prosecutor moved the Sessions judge for the cancellation of the above order, who, by his order dated the 13th of August 1954, set it aside. It would be advantageous to reproduce the following passage from his order :‑ "Qasim Beg was originally released on bail by the learned Additional District Magistrate, Lyallpur. By my order dated the 15th of July 1954 I cancelled his bail. A bail application was presented before the Honourable the Chief justice and he also dismissed the bail application. He, however, remark ed that he would leave the question of bail to be decided upon by the trial Magistrate after some evidence is recorded. The learned trial Magistrate to whom the case had been transferred by the Additional District Magistrate, Lyallpur, released Qasim Beg on bail without recording any evidence at all. In my opinion he acted contrary to the orders of the Hon ourable the Chief Justice. I accordingly cancel the bail granted to Qasim Beg and order that he should be taken into custody forthwith". On the 1st of September 1954 the respondent again released the accused on bail. The following passages from that order deserve consideration :‑ "The learned A. P. P. points out that, though on merits the case is fit for bail, but there is the order of Honourable Chief Justice dated the 23rd of July 1954, which requires that some evidence be recorded before considering the bail of the accused. The learned counsel for the defence replies that the order of the Honourable the Chief Justice referred to offers no bar for the consideration of the bail, because the evidence could have been recorded to day in this case, but the complainant himself does not so wish ; and hence it is good ground for allowing bail to the accused. In my opinion, there is much force in the contention of the learned counsel for defence. The evidence could have been, but for the unwillingness on the part of the complainant, recorded today. His statement to that effect has been, recorded by me today and I have carefully noted each and every objection which the complainant raised today in my order on the order‑sheet. I may also point out that the prosecution agency have not been vigilent enough to get the service of the witnesses done, even though they were given a margin of 25 days for the service of summonses, which were issued against the person who are resident at the quarters close to the police station. I am of the view, that the order of the Honourable the Chief Justice does not rule out new grounds that could have arisen in the course of trial of this case, because its strict interpretation would be tantamount even to disallow the bail when the accused be at the point of death. It is quite in consonance with the spirit of that order to say that, when some evidence could have been recorded, and is not so recorded, as alluded above, it is as good as some evidence was in fact recorded. The facts of the case, as are contained in the zimnis, which I had studied earlier, would also justly warrant for the bail of the accused in this case. I am, there fore, in entire agreement with the learned counsel for the defence and order that the accused be released on bail on furnishing a bail bond in the amount of Rs. 2,000 with one surety in the like amount." Ghulam Jilani (petitioner) moved the Sessions judge for the cancellation of the above order. The learned Sessions Judge set aside, who, after narrating the facts, observed :‑ "The learned trial Magistrate, in my opinion, by releasing the respondent, Qasim Beg, on bail without recording any evidence, has again acted contrary to the orders of the High Court. I am really pained to notice that a senior judicial officer like the said Magistrate has flouted the order of the highest Court in the Province, which, in my opinion, is a very sad reflection indeed. I accordingly cancel the order dated the 1st of September 1954 of the trial Magistrate releasing the respondent Qasim Beg on bail and direct that the respondent be taken into custody forthwith ". The respondent filed a written statement in this Court on the 25th of October 1954. He stated therein :‑ "At time when the respondent passed the first order allowing bail to the accused, the copy of the order of the Honourable High Court dated 23rd July 1954 was not before him, consequently in passing this order the respondent did not act in disobedience to the said order of the Honourable High Court. However, when a second application for bail was moved before the respondent the learned counsel for the accused contended that the order of the Honourable High Court dated 23rd July 1954 did not preclude the jurisdiction of the trial Court to grant bail on fresh consideration which had arisen subsequent to the passing of the said order by the Honourable High Court ". The learned counsel for the respondent argued that the order of the Honourable the Chief Justice did not debar the respondent from releasing the accused on bail without recording evidence. He further argued that the respondent released the accused on bail on the second occasion, i.e. the 1st of September 1954, as Ghulam Jilani, complainant in the case, refused to make a statement. In other words the respondent has pleaded justification. The main argument on which the plea of justification is based is that Ghulam Jilani (petitioner), complainant in the case, refused to make a statement on the 1st of September 1954 in order to delay the proceedings so that the accused may remain in jail as an under‑trial prisoner as long as possible. There is no force in this contention. I have perused the statement of Ghulam Mani dated the 1st of September 1954. He stated :‑ " I have filed an application for the transfer of this case in the Court of the A. D. M. My statement may not be recorded till the decision of this application ". The above statement does not amount to a refusal to make a statement. It merely amounts to a request for the postponement of his examination pending the decision of the transfer application by the Additional District Magistrate. Moreover, the respondent was under no legal obligation to adjourn the case as the application to the Additional Distrit Magistrate lay under section 528 (2) of the Code of Criminal Procedure, which does not make it obligatory on the trial Court to adjourn the proceedings in the manner contemplated by section 526 (8) of the Code. If Ghulam Jilani refused to make a statement, after a proper warning, the respondent could have proceeded against him under section 178 or 179 of the P. P. C. The record does not show that the respondent gave any such warning to Ghulam Jilani. I feel sure that the administration of such a warning would have had a salutary effect and Ghulam Jilani would either have made a statement or faced the consequences .of his refusal. In either case, the respondent would have avoided a flagrant breach of the orders of the High Court and would at the same time have been in a position to release the accused on bail, if the circumstances of the case warranted such a course. Similarly the respondent's contention that two of the prosecution witnesses had obsconded to avoide service lacks force. As a Magistrate of 1st Class, he should have known that such witnesses can be proceeded against under law. The most important question that requires decision is whether the respondent has wilfully and deliberately dis obeyed the directions of this Court. The following circum stances leave no doubt in my mind that he has done so. It is clear from the respondent's order dated the 1st of September 1954 that the Additional Public Prosecutor point edly drew his attention to the order of the High Court, which required the recording of some evidence before deter mining the question of releasing the accused on bail. Morever, it was conceded before me that the respondent was aware of the order of the learned Sessions judge dated the 13th of August 1954 wherein the respondent was reminded in clear terms that his order dated the 11th of August 1954, releasing the accused on bail without recording evidence was contrary to the order of the High Court. The respondent, however, ignored the order of the Sessions judge on the ground that certain witnesses had failed to put in their appearance and the complainant alone had turned up I have already shown, that it could be remedied without delay. There was thus a flagrant disregard of the order of the High Court and o the interpretation of that order by the learned Sessions judge, which, as a Court of inferior jurisdiction, was binding on the respondent. After the judgment of the learned Sessions Judge, it was not open to the respondent ito put any other interpretation on the order of the High Court. His subsequent action can, therefore, only be interpreted as being mala fide. The law takes a very serious view of contempts of the orders of the superior Courts by the Courts having inferior l$ jurisdiction, who are expected to respect such orders. Unless inferior Courts do obey and pay due regard to the directions of superior Courts, the course of justice will be hampered. The explanation given by the respondent is not at all satisfactory. A subordinate Court cannot ignore the orders of the superior Court by inventing reasons as in the present case. The question of sentence alone now requires consideration. The respondent first appeared before me on the 25th of Octo ber 1954, and filed a written statement trying to justify both the orders of release but did not tender any apology. At the subsequent hearing he, however, put in a half‑hearted apology. Such an apology cannot be called to be a genuine one. It is stated in Tek Chand's Book (The Law of Contempt, page 223) "An apology 'when it is accompanied with a plea of justification ceases to be genuine. An attempt to justify the conduct and at the same time to express regret for the act is a contradiction in terms. The two things are incompatible. Co‑existence of the two pleas is tantamount to blowing hot and cold in the same breath." In Muhammad Shafi v. Qadar Bakhsh (P L D 1949 Lah. 392=Pak. L R 149 Lah. 437), the respondent, who was a Magistrate, having tendered an unqualified and unconditional apology was sentenced to pay a fine of Rs. 50 or in default to suffer simple imprisonment for a period of one month. In Hakim Qari Nasir Ahmad v. Anis Ahmad (A I R 1941 Oudh 67) it was held :‑ "'If the apology is tendered at a late stage of the proceed ing after contest it will be considered as an after thought and intended merely to avoid punishment." Bearing in mind all the circumstances of the case, I think that the ends of justice will be met by imposing a fine of Rs. 100 on the respondent. In default of payment of fine, he will suffer simple imprisonment for a period of one month. The respondent shall also pay the cost incurred by the applicant (Ghulam Jilani) which I assess at Rs.

50. A. H. Contempt, held, proved.