1995 P Cr (PLP)

The facts of the case in brief are that on 25‑5‑1987, the appellant No.4 (Syed Hassan Ali Sherazi) lodged F.I.R. No.92/87 at A.C.E., Karachi under section 161, P.P.C. "read with section 5(2) of Act II of 1947. It is stated in the FXR. by complainant S. Hassan Ali, that he had filed Suit No.202/87 in the Court of VIIth Civil Judge, Karachi West for declaration and permanent injunction in respect of Quarter No.F/2, Block 12, F.C. Area, Liaquatabad, Karachi, against Aftab and others, and an order of status quo was passed on 21‑5‑1987. The order was extended up till 26‑5‑1987. One Ali Khan, a Reader/Peshkar of the learned Judge had required complainant/plaintiff S. Hassan Ali to pay Rs.2,000 as illegal gratification or otherwise stay would not be granted. Complainant is said to have requested the Reader to reduce the amount as due to the adverse circumstances the amount of Rs.2,000 was beyond his capacity. The Peshkar agreed to accept Rs.1,000 for grant of permanent status quo through the learned Judge on the next day. The amount was agreed to be received by the Reader on 26‑5‑1987. After the registration of F.I.R, a trap was arranged by appellant No.1, (S.I.P. Anti‑Corruption) under the supervision of Mr. Kalaram, A.C.M. Court VIth South Karachi. The appellants Nos.2 and 3 were at the relevant time constables of Anti‑Corruption Police, whereas appellant No.4 as mentioned above, was the complainant who had lodged F.I.R. with A.C.E. Because the suit of the complainant was adjourned on 26‑5‑1987 to 31‑5‑1987, the trap could not materialise. The trap party on 31‑5‑1987 again went under the supervision of the Magistrate to the given place when appellant No.4/complainant passed on tainted money of Rs.1,000 to the Reader in presence of Mashirs Baqar and Muhammad Ibrahim. After receipt of a signal, the trap party rushed to the room of the Reader, who in the meanwhile left his seat and rushed to the chambers of the learned Judge, followed by the trap party. As soon as the trap party, alongwith the Magistrate followed the Reader to the nearby room, they found the Reader standing, while another person whom the trap party did not know that he was a Judge, was found seated. On seeing the trap party, the Peshkar threw the tainted money near the feet of the person sitting on the table which was picked up by appellant No.1 in presence of Mashirs and produced it before the supervising Magistrate. At that moment of time the person sitting inside enquired as to what was the matter when it was disclosed to him that the Reader had accepted illegal gratification of Rs.1,000 from appellant/complainant Syed Hassan Ali as bribe for doing him some favour. The trap party also disclosed that the Reader was under arrest and would be taken in custody. During this time, about 40‑50 persons from adjoining rooms, having learnt of an Anti‑Corruption trap, surrounded the trap party, assaulted some of them in presence of the learned Judge and obstructed them in the discharge of their official duty. A separate case was filed (F.I.R. No.93/87) with A.C.E. Karachi under sections 332, 353, 224, 225, 109, P.P.C. and section 5(2) of Act II of 1947. Mr. Saghir Ahmad Shaikh, the Presiding Officer of Court No.VII took the appellant to the Court of Sessions Judge, Karachi West, made them to sit there and he himself went to meet the Sessions Judge. After a while, the police was called and all appellants were escorted to Court of VIIth Civil Judge where they were made to sit till 3‑40 p.m. The learned VII Civil Judge then served notices on appellants to show cause why action for Contempt of Court be not taken against them. All appellants denied to have committed contempt of Court which was considered as not satisfactory and the learned Judge convicted appellants and sentenced them to pay fine of Rs.200 each, as stated above. In the meantime, because the news about the trap party having been assaulted and detained, reached the highups, the Deputy Director and D.S.P. A.C.E. arrived but without even allowing appellants time to arrange to pay the fine, they were committed to Central Prison, Karachi. A counter‑case was got registered through a junior clerk Ghulam Haider of learned Civil Judge with the Risala Police Station under sections 353, 504, 34, P.P.C. Annexure "D" to this appeal. The appellants have challenged their very trial, the conviction and ,sentence. I have heard the learned counsel for the appellants and have perused the entire record. It is contended by Mr. Raja Haq Nawaz learned Advocate for the appellants that in the first instance, appellants who were the members of the trap party had followed the Peshkar inside a room which subsequently transpired to be the chamber of the learned Judge whom they saw sitting. It was never known to appellants that the room inside which the Peshkar had rushed after accepting illegal gratification from complainant S. Hassan Ali, was the chamber of the Judge as neither any signboard nor a name plate was seen by them outside the room. It is argued that, assuming that the appellants knew that they had entered the chamber of the Judge, such was done by them in the discharge of their official duties, as they had to apprehend accused Peshkar who had committed a cognizable offence, having accepted Rs.1,000 as bribe from the complainant. The appellants also apprised the learned Judge about the purpose of their entering the chamber and had seen the accused Peshkar throwing the tainted money at the feet of the learned Judge and in these circumstances, the normal disposition of the Presiding Officer should have been to aid rather than to act adversely in handing over the custody of the accused to the trap party including a Magistrate. It is argued that having left his chambers and having taken the, trap party to the learned Sessions Judge, the Civil Judge had ceased to be sitting in some judicial proceedings and he could not have taken any action for contempt of Court as is done in the instant case. Mr. Raja Haq Nawaz, while referring to the provision of the section 228 of P.P.C. has argued that in order to bring home guilt of an accused under said provision, it had to be shown that the accused intentionally offered any insult or caused any interruption to any public servant while such public servant was sitting in any stage of a judicial proceedings. If such a situation did not exist, no action under section 228 of P.P.C. could have been taken under the provision of section 481(2) or 476 of Cr.P.C. The next contention of the, learned Advocate is, that after serving show‑cause notice on appellants and after receiving their reply, evidence ought to have been recorded which has not been done. In support of this contention, learned Advocate referred to the case of Aziza Khatoon v. The State and others and Muhammad Sirajuddin Bhuiyan v. Azizul Haq and others 1968 PCr.LJ 682, a judgment of the Dacca High Court. In the said case, it was held that for the trial of offence under section 228 of P.P.C., the Court has to follow procedure laid down in section 481, Cr.P.C. which provides mandatorily the recording of statements of accused. In the case in hand, because such statement of the accused was not recorded, the very trial of the accused was void ab initio and conviction and sentence based on such trial cannot be sustained. The learned Advocate then argued that the malice on the part of learned Judge is evident from the fact that although the Magistrate Mr. Kelaram was also a member of the trap party, he was not given any show‑cause notice nor he was put on trial. No explanation is available for such discrimination by the learned Judge. Mr. Raja Haq Nawaz next argued that the subordinate Courts could punish a person for contempt of Court only where contempt was committed in the face of the Court or its orders were disobeyed or disrespected as envisaged by section 3 of the Contempt of Court Act, 1976. He has referred to the case of Yar Muhammad v. The State 1990 PCr.LJ 1736 where a learned Judge of this Court took similar view, allowed the appeal and directed acquittal of the convict. Learned Advocate has also referred to the case of Muhammad Aslam v. Mahmood Ali and another P L D 1991 SC

104. In order to appreciate the contentions of appellants' learned Advocate, it would be pertinent to refer to section 228 of P.P.C. and section 3 of the Contempt of Courts Act which read as under:‑‑ "

228. Whoever intentionally offers . any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Section

3. Contempt of Court Act.‑‑‑‑ Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a wilful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalise a Judge in relation to his office or to disturb the order or decorum of a Court, is said to commit `Contempt of Court': Provided that the following shall not amount to commission of contempt of Court:‑‑ The next following provisions (i) to (x) need not be referred as the same would have no relevance to the facts of the case:' The reading of section 228' of P.P.C. would show that an offender who is to be proceeded under said provision should be shown to have intentionally offered any insult or caused any interruption to any public servant while such public servant is sitting in any stage of a judicial proceedings. The Presiding Officer in his show‑cause notice has mentioned that he was busy writing some judgment when his Reader entered the chamber and was 'followed by the appellants, who by their such act intentionally offered insult or caused interruption while he was sitting in any stage of a judicial proceeding. The mention of such fact in the show‑cause notice by itself was not enough to infer that the learned Judge was sitting in a judicial proceedings and was interrupted by appellants. In the first place, he should have avoided to take action against the accused under the relevant provisions of law under which he has proceeded, but if that was not considered expedient, he should have recorded evidence and should have produced through anyone of his clerks such judgment which he was said to be writing in his chambers at the relevant time. None of such steps were taken by him and on the contrary he left the chambers taking appellants with himself to the Sessions Judge and having met the latter sought his counsel and then brought back the appellants to his chambers and issued show‑cause notice. As stated at the bar, the show‑cause notice was served on appellants at 3‑40 p.m. when the Court time was over and after having typed out a lengthy show‑cause notice, served the same on appellants but did not provide them an adequate opportunity to defend themselves. Immediately after serving show‑cause notice on appellants and receiving their reply the learned Judge convicted them to pay fine of Rs.200 each. Although under section 388, Cr.P.C. the execution of sentence could have been suspended, and the convict given time to pay, the learned Judge sent the appellants with a warrant of commitment to Central Jail, Karachi. These all steps taken by the learned Judge exhibit his malice, inexperience and an effort to protect his corrupt Peshkar who had accepted illegal gratification. Furthermore, for trial of offence under section 228 of P.P.C., the Court had to follow the procedure as laid down in sections 480 and 481 of Cr.P.C. under which the recording of statement of accused was mandatory. Even this was not done but hurriedly conviction was recorded. All these actions cannot be sustained in law. Some of the appellants were even assaulted and such medical certificate regarding their injuries is on record. As to whether any trial of the accused who may have assaulted the appellants or some of them or deterred them from the discharge of their official duty, was conducted, nothing is brought on record as no one has represented the State, The learned Advocate for the appellants was notable to say if those guilty of assaulting the public servants were prosecuted and as to the result of such prosecution. Such issue is not involved in this appeal and I would, therefore, restrain from making any observation. For the aforesaid reasons I accept this appeal, set aside the conviction and sentence awarded to the appellants and acquit them. If the fine has been) paid by the appellants, the same shall be refunded to them. N.H.Q./A‑1532/K?????? Appeal accepted.