P L D 2007 Supreme Court 688 (PLP)

NASIR-UL-MULK, J.

On the 9th of March 2007, the President of Pakistan sent a reference: under Article 209 of the Constitution of Pakistan, to the Supreme Judicial Council, against Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan. The Council met the same day and decided to fix 13th of the month for appearance of the Hon'ble Chief Justice. Meanwhile, it was widely reported in the electronic and print media that soon after the filing of the reference the official vehicles in the use of the Hon'ble Chief Justice, were taken away from his residence. We do not have any authentic first hand information but according to the reports published in the media, the Hon'ble Chief Justice of Pakistan, on the 13th of March, as protest decided not to use the official vehicle made available to take him the Supreme Court Building to appear before the Council. It was in this background that the Hon'ble Chief Justice walked out of his residence along with his lady wife. The police personnel under the supervision and in the presence of the Inspector-General of Police and 'the Chief Commissioner, Islamabad, tried to prevent the Hon'ble .Chief Justice from proceeding on foot and in doing so, an ugly incident took place when some of the police personnel proceeded to physically stop the Hon'ble Chief Justice and tried to push him into an official car.

2. The above incident was reported in the media. The then Acting Chief Justice, Hon'ble Mr. Justice Javed Iqbal, took suo motu notice of the manhandling of the Hon'ble Chief Justice on the news report published in the Daily "Express" of 14-3-2007, which also named some police officials involved in the incident. The matter was placed before a Bench of this Court headed by the Hon'ble Acting Chief Justice. The Court issued notice to the Attorney General for Pakistan and surrunoned Mr. Iftikhar Ahmed, Inspector-General of Police, Mr. Zafar Iqbal, Senior Superintendent of Police, and Mr. Jamil Hashmi, Deputy Superintendent of Police, Islamabad. They appeared before the Court on 20-3-2007. After going through the various reports, the Court decided to hold a full fledge inquiry into the incident to be conducted by the Hon'ble Mr.Justice Ijaz Afzal Khan, Judge of the Peshawar High Court and "to fix responsibility on delinquent police officers/officials for such mishandling, ascertain its causes and suggest means and measures to avoid such incidents in future."

3. Mr. Justice Ijaz Afzal, Khan held the inquiry at Islamabad and issued public .notices soliciting information of the incident from the members of the media and public. The following persons from the media present at the scene furnished information:-- (i) Mr. Muhammad Khurshid Khan, Reporter Daily Express. (ii) Mr. Sajjad Ali Qureshi, Photographer of the Daily Nation. (iii) Mr. Sabir Shakir, Senior Reporter of ARY, TV, (iv) Mr. Iftikhar Chaudhary, Crime Reporter of the Daily Express. (v) Mr. Muhammad Khalid Jamil, Reporter Aaj TV., (vi) Mr. Muhammad Irfan, Cameraman of Aaj. TV., (vii) Mr. Shakeel Anjum, Crime Correspondent, the News Ibd. And (viii) Mr. Muhammad Latif, Cameraman, PTV. These members of the media gave their respective piecemeal information of the incident. However, the combined reading of their statements provided an overall picture of the incident. Mr. Sabir Shakir, Senior Reporter of ARY produced DVD of the incident prepared by him, which he stated, was also telecast on ARY TV. Mr. Muhammad Jamshed Khan, Reporter, The Daily Express, produced the button which he picked up from. the scene after the same was torn in the jostle from the coat worn by the Chief Justice.

4. In the light of the information furnished by the witnesses, the Tribunal proceeded to examine the following officials, who were apparently involved in the incident. (i) Mr. Khalid Pervez, Chief Commissioner, Islamabad. (ii) Ch. Iftikhar Ahmed, Inspector-General of the Police, Islamabad. (iii) Ch. Muhammad Ali, Deputy Commissioner, Islamabad. (iv) Mr. Zafar Iqbal, Senior Superintendent of Police, Islamabad (v) Mr. Jamil Hashmi, Deputy Superintendent of Police, Islamabad (vi) Mr. Rukhsar Mehdi, S.H.O. P.S. Secretariat, and (vii) Mr. Muhammad Siraj Khan, A.S.I. The statements of the above officials were recorded. The Tribunal was of the opinion that they had not furnished correct information as although they admitted their presence at the scene yet expressed ignorance of the manhandling. From examination of the statements of the witnesses and the officials the Tribunal concluded that prima facie Jamil Hashmi, Deputy Superintendent of Police, Rukhsar Mehdi, S.H.O. Police Station Secretariat, Islamabad and Siraj Ahmed, Assistant Sub-Inspector, Guard of the Inspector General of Police were directly involved in the act of manhandling of the Hon'ble Chief Justice while trying to force him into the car. Further that this action by the subordinate personnel could not have been undertaken without the direction of their officers, namely, the Inspector General, acid the Senior. Superintendent of Police, who admittedly were present at the scene. The Tribunal also held the Chief Commissioner, Islamabad and the Deputy Commissioner, Islamabad responsible as they were under a duty to supervise the police action. It may be mentioned that the inquiry Tribunal had approached the Hon'ble Chief Justice as to whether he would throw light on the incident but he expressed his regrets.

5. Upon receipt of report of Mr. Justice Ijaz Afzal Khan, this court summoned the above mentioned officials. Mr. Raja Muhammad Irshad, learned Deputy Attorney General, appeared on behalf of the Attorney-General for Pakistan. He submitted that in view of the report of the Inquiry Tribunal, a prima facie case of Contempt of Court was made out against the said officers. We agreed with this opinion and accordingly framed charge against all the seven officers. The charge was subsequently amended when Mr. Makhdoom Ali Khan, Attorney-General for Pakistan pointed out that the Contempt of Court Ordinance, 2003 (No.V of 2003) was still a valid law as it was accorded permanence by incorporation of Article 270AA in the Constitution by the Constitution A (17th Amendment) Act, 2003, and therefore, Ordinance No.1 of 2004 was issued on the wrong assumption that the earlier Ordinance had lapsed.

6. Six out of the seven contemners straightaway tendered written unconditional apology whereas the seventh, Mr. Jamil Hashmi, Deputy Superintendent of Police, submitted a conditional apology. He expressed his respect for the dignity of Court but denied involvement in any way in the incident. Subsequently, however, he also tendered unconditional apology withdrawing his earlier statement.

7. As the contemners had tendered unqualified apologies and decided not to contest the charge framed against them the learned counsel, Mr. Mujeeb-ur-Rehman, Mr. Raja Muhammad Bashir and Mr. Raja Muhammad Ibrahim Satti, appearing for the contemners prayed for total. forgiveness in view of the repentance showed by them and their long unblemished public service. Alternatively they pleaded for lenient treatment. In support of their .submissions, they cited the judgments of this Court Habib Wahhab-ul-Khairi v. Khan Abdul Wali Khan PLD 1978 SC 85, A.K.M.A. Awal v. The State PLD 1959 SC 66, Fakhre Alam v. The State PLD -1973 SC 525. and Raja Muhammad v. The State 1990 SCMR

215. Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan, quoting from Arlidge Eady on Contempt (third Edition) and referring to Yusul' Ali Khan v. The State PLD 1970 SC 350 submitted that the courts generally show magnanimity to contemners who purge themselves by tendering unconditional apology and throwing themselves at the mercy of the Court.

8. The resolution of the factual aspect of the case does not pose much difficulty. The contemners had in their written unconditional apology regretted the .incident, thus admitting its occurrence. Additionally, the members of the media appearing before the Inquiry Tribunal with one voice confirmed the incident. Above all the photographs taken and the videos prepared by the photographers of the media produced before the Inquiry Tribunal leaves one in no doubt that the Hon'ble Chief Justice was manhandled by the Police personnel on the morning of 13th March, 2007.

9. The next question is whether such an act amounts to contempt of Court. The charge against the contemners has been framed under Article 204 of .the Constitution read with sections 3 and 5 of the Contempt of Court Ordinance, 2003 (Ordinance No.V of 2003). The Ordinance divides the contempt of Court into three classes, Civil, Criminal and Judicial, the latter being relevant to the present case is defined in section 2(b) as "the scandalization of the court and includes personalized criticism of a Judge while holding office". However, section 3 lays down general definition of contempt of court and includes . "?????????? anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or disrepute...." This Court however, derives its powers of contempt from Article 204 of the Constitution and the contempt of Court Ordinance is merely regulatory law enacted pursuant to clause (3) of Article 204 of the Constitution which provides, . "The exercise of the power conferred on a Court by this Article Wray be regulated by law and, subject to law, by rules made by the Court (see Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823). Although, the act for which the contemners are charged would amount to disrespect of the Court within the meaning of section 3 of the Ordinance, however, it would fall more, squarely under sub-clause (b) of clause (2) of Article 204 of -the Constitution which provides for punishment of a person who "...scandalizes the Court or otherwise does anything which tends to bring the court or a Judge of the Court into hatred, ridicule or contempt". The word `ridicule' would include humiliation. There can be no two opinions that the manhandling of the Chief Justice of the country would amount to disrespect of the Judiciary of the country within the meaning of section 3 of the Ordinance, No.V of 2003 and ridiculing the person of the Chief Justice and thereby also the Supreme Court, falling within sub-clause (b) of clause (2) of Article 204 of the Constitution.

10. Having found correct the factual allegations made in the charge and that the same amount to contempt of Court, the charge stands proved. Thee only issue thus remains to be resolved is whether the tendering of unconditional written apology by the contemners and throwing themselves at the mercy of the Court would be sufficient to let them off unpunished, and if not the quantum of punishment that they deserve to suffer. The trend of the case law on the subject, cited at bar, would suggest that when a contemner tenders unconditional apology at the first opportunity and the court is satisfied that his regrets and repentence are sincere he shall ordinarily not be punished. However, it is also well-settled that this is not a rule to be invariably followed in all cases and much would depend. upon the circumstances of each case. In the case law cited at the bar, the Courts were by and large concerned with allegations of scandalization of the Court by publication of written materials or delivering of speeches by contemners. However, neither the learned counsel for respondents nor the learned Attorney-General for Pakistan were able to cite any precedent where the contemners were tried for the manhandling of a Judge. We also have not been able to lay hands on any such authority. The present case is possibly unique where the holder of the highest judicial office of the country was manhandled by the police personnel and that too under the very nose of the highest police officials and administrators of the Federal Capital. It is difficult to imagine of a graver contempt than the physical force used publicly by the members of the law enforcing agency against the. Chief Justice of a country.

11. In view of the peculiar circumstances of the present case, the tender of the unconditional apology would not serve to purge the contemners of the contempt which may however be considered as a mitigating circumstance. We are therefore, constrained to punish the contemners. The degree of culpability of the contemners,. however, vary. The three police personnel Jamil Hashmi, Rukhsar Mehdi and Muhammad Siraj Khan, deserve severe punishment in view of their actual use of physical force. Ch. Iftikhar Ahmed, Inspector General of G Police and Zafar Iqbal Senior Superintendent of Police, were present at the scene and as pointed out by the Inquiry Tribunal, the action of the subordinate police officials must have been taken either on the direction or the approval of the senior police officers. In any case, they made no effort to stop their subordinate police officials from the physical harassment of the Hon'ble Chief Justice. The two senior police officers are in any event responsible for the act of their subordinates committed in their presence. The Chief Commissioner and the Deputy Commissioner, Islamabad's presence at the spot was not without purpose and were there to supervise and monitor the entire exercise. They also made no effort to intervene when the police personnel resorted to the use of physical force. They had also therefore, failed to perform their duty. None of the above senior officers had taken any disciplinary action against the subordinate police personnel, which indicates their approval of the action.

12. For the reasons afore-stated, we find the respondents/contemners guilty of contempt of Court and keeping in view the degree of their culpability, we sentence them under Article 204 of the Constitution read with section 5 of the Contempt of Court Ordinance, 2003. as follows:-- (i) Jamil Hashmi, Deputy Superintendent of Police, Islamabad, Rukhsar Mehdi, Inspector of Police, Islamabad and Muhammad Siraj Khan, ASI/Personal Guard to the Inspector-General of Police, to one month simple imprisonment. (ii) Ch. Iftikhar Ahmed, Inspector-General of Police and Cap.(R) Zafar Iqbal, Senior Superintendent of Police;. Islamabad, to fifteen days simple imprisonment, and (iii) Khalid Pervaiz, Chief Commissioner, Islamabad and Ch. Muhammad Ali, Deputy Commissioner, Islamabad, to imprisonment till rising of the Court. (Sd) Nasirul Mulk,.J (Sd.) 1-1 1-2007????????????????????????????????????????????????????????????????? Tassaduq Hussain Jillani, J.

13. RANA BHAGWANDAS, ACTG. C.J.

I fully concur with the reasons recorded and conclusions by my learned brother-Nasir-ul-Mink, J., whom I have always held in great esteem and respect. Nevertheless,. I would like to add a few words on my own.

14. As observed in the foregoing pass, respondents have not contested the charge of contempt of Court and placed themselves at the mercy of this Court by offering unconditional apology. However, apology tendered by them shall not automatically purge the contemners from the' contempt and need not necessarily be accepted, unless this I Court, from surrounding circumstances, is satisfied about its bona fides. Acceptance or rejection of apology, therefore, would depend on the volume and nature of contempt allegedly committed.

15. It is well-settled that mere apology does not per se wipe off the gravity of the contempt. Inter ilia, fundamental principles for acceptance of an unconditional apology may be summarized as under:-- (a) the apology must be tendered at the earliest stage of the contempt proceedings and may not be postponed till fag-end of the proceedings; (b) the apology must be unqualified, unreserved and totally I unconditional; (c) the apology should not seem to be tendered but ,should also demonstrate sincere and genuine remorse to the satisfaction of the Court. At any event, a half-hearted or an apology in the nature of mere formality cannot be deemed as unconditional; and (d) the contemner should not endeavour to justify his conduct.

16. However, jurisdiction in this behalf must be carefully exercised because ultimate object sought to be achieved is curative. It must be invariably exercised to keep up the majesty of law and dignity of judicial institution. In-order to attract the soft corner and leniency of the Court, J surrender to the jurisdiction of the Court praying for excusing fault is relatable to the time and should prominently reflect the keen anxiety of contemner for making genuine endeavour to dilute gravity and with. greatest humility seeking condonation of charge made against him.

17. In the present case, contemners are found to be guilty of the charge of gross contempt for indulging .into unprecedented act of physical assault on the person of the Head of superior Judiciary. Therefore, they have not only ridiculed the dignity and honour of superior Judiciary but also acted recklessly. It is for-this reason that despite the bona fide repentance and remorse expressed by them, it is found necessary to convict them and award punishment commensurate with the gravity of offence committed by them. Indeed, there is no inflexible, rule of jurisprudence that even if apology is found to be unconditional, it must be followed by complete surrender and without demonstrating any justification.

18. I am, therefore, of the considered view that proposed punishment awarded to the respondents would be ,consistent with the spirit of the law of contempt so as to deter recurrence of such offence at the hands of unscrupulous persons in authority. M.B.A./5-45/S???????????????????????????????????????????????????????????????????????????????????? Order accordingly.