1977 P Cr (PLP)

(f) Constitution of Pakistan (1973)- --.- Art. 204-Corternpt of Court

Apology-Mitigation-Sentence- Apology-A mitigating circumstance in assessment of sentence.-- [Contempt of Court-Sentence]. Dilawar Mahmood for the Complainant. S. M. Baqir and Syed Kamal Mustafa Bokhari, Asstt. A.-G., Punjab for Respondents. SARDAR SAOOD JAN, J.-These are proceedings in contempt initiated at the instance of Sh. Zahoor Ahmad, petitioner. These arise out of an order-dated 11-7-73 of this Court admitting the petitioner to interim bail. It is alleged that in spite of knowledge of this order the respondents not only arrested the petitioner but also put him to torture.

2. The petitioner is a resident of Multan City and belongs to a political party styled as the Tehrik-e-Istiqlal. On 10-7-73 he presented an application in this Court seeking for bail before arrest. He averred in the application that the views of his party divergent from those of the party in power. In order to dissuade him from his political persuasions and to compel him to sever connections with the Tehrik-e-Istiqlal the police administration had embarked upon a campaign of his persecution. As a part of this campaign a large number of criminal cases had been registered against him in the various parts of the Province. He was unaware of most of these cases, but in two, which had come to his knowledge, he had already applied for and had been admitted to bail. However, for obtaining protection from further harassment he prayed that the State should be directed to supply the details of all the criminal cases, which had been registered against him, and till such information was placed before the Court he should be granted bail before arrest.

3. This application came up for consideration on 10-7-73 before our learned brother M. A. Zullah, J. who issued a notice to the State for the following day and directed that in the meanwhile the petitioner should not be arrested. On 11-7-73 the Assistant Advocate-General appeared in Court but expressed his inability on account of the paucity of time to give details of all the cases in which the petitioner was involved. Thereupon his Lord ship directed that the application should be kept pending till the Assistant Advocate-General was able to get hold of the necessary information and that in the meanwhile, the petitioner should not be arrested in any case without permission from the Court. This order remained in force till the incident giving rise to the present proceedings occurred.

4. On 28-9-73 the petitioner along with a few of his party members went to Kabirwala to attend a political function. At about 10-30 a.m. the petitioner and some others took out a procession in the streets of Kabirwala -The processionists carried banners and raised slogans critical of the Govern ment of the day. Shah Alam Khan. Niazi, respondent No. 6, was at the relevant time the Station House Officer of the local Police -Station. He arrested the petitioner and some of his co-processionists for the commission of offences under section 153-A of the Pakistan Penal Code and rule 49 of the Defence of Pakistan Rules. After the arrest the petitioner and his companions were interned in the local police lock-up. On the succeeding night respondents Nos. 1 to 5, all police-officers and posted in Multan City at that time, visited the Kabirwala police lock-up and started torturing the petitioner and his companions. On the next day, that is, 29-9-73, in the afternoon the petitioner was released from custody after a copy of the bail order of 11-7-73 was shown to respondent No. 6.

5. On 2-10-73 the petitioner moved the present application for taking action for contempt of Court against respondents Nos. 1 to 6 for violating the order of 11-7-73. In this application it was inter aria alleged by the petitioner that he had informed respondent No. 6 about the bail order made in his favour by the High Court at the time when the said officer was about to arrest him. Similarly he had also informed respondents Nos. 1 to 5 when they visited the police station for the purpose of torturing him and his com panions. The respondents however flouted the said order and they not only continued to keep him in custody till the next day but also committed acts of violence on him.

6. In support of his allegations of torture the applicant also produced a medico-legal report with respect to his injuries. This report shows that the petitioner was examined by the Assistant Medical Officer at Civil Hospital on 29-9-73 at 7-30 p.m. and he had marks of more than a dozen separate injuries. On the direction of M. A. Zullah, J. he was also examined by an Officer on Special Duty of this Court on 3-10-73. The Officer on Special Duty confirmed the report of the Assistant Medical Officer.

7. Since the allegations made by the petitioner prima facie indicated a serious violation of an order of this Court, notices were issued to the respon dents why they should not be punished for contempt.

8. Initially all the respondents denied the allegations of the petitioner and submitted separate documented written statements in support of their defence. Respondents Nos. 1 to 5 stated that they were unaware of the arrest of the petitioner on 28-9-73. They denied that they had visited Police Station Kabirwala on the relevant night or were in any way responsible for torturing the petitioner and his companions: Responder A No. 6, however, admitted having arrested the petitioner on 28-9-73. He explained that the petitioner along with some 20 to 25 other persons had taken out a procession on the day in question. The processionists were raising slogans and carrying banners which had the effect of prejudicing the maintenance of public safety in the locality. Consequently he arrested the petitioner and some of his companions. He denied that he was at that time aware of the bail order made by this Court. He refuted the assertion of the petitioner that the latter had brought the said order to his knowledge; on the other hand he alleged that its existence was purposely kept from him so that he (the respondent) could be ensnared. He also stated that on 29-9-73 at 8-00 a.m. when a local newspaper correspondent produced a Photostat copy of the. Bail order before him he immediately released the petitioner.

9. The present application was initially placed before our learned brother M. A. Zullah, J. on 3-10-73. His Lordship directed that a larger Bench should hear the case. Accordingly a Division Bench comprising my Lord the Chief Justice and the referring Judge was constituted. On 7-2-74 the Division Bench directed that M. A. Zullah, J, should record the evidence in the case. For this purpose the case came up before his Lordship on 12-3-74. On that day all the respondents tendered an unqualified apology and expressed profound regrets with regard to the incident and threw them selves at the mercy of the Court. They informed his Lordship that they did not want to raise any contest over the allegations made in the application. They followed this new stand with a joint written statement to that effect. Upon this the matter went back to the Division Bench for further proceedings. On 27-3-74 M. A. Zullah, J. declined to be further associated with the case whereupon my Lord the Chief Justice constituted the present Bench.

10. Mr. Kamal Mustafa Bokhari Assistant Advocate-General appeared before us to represent the Advocate-General. In his address to the Court he lent support to some of the legal propositions canvassed on behalf of the Respondents. This was objected to by the learned counsel for the petitioner for he contended that in contempt proceedings the Advocate-General or, in his absence, his representative, occupied the position of a persecutor and as such be could not advance arguments, which in any way favoured the accused contemner. In this context he referred to State v. Sir Edward Snelson (P L D 1961 Lah. 78) we do not think that this authority supports the contention of the learned counsel. It is true that as a matter of a time-honoured tradition the Advo cate-General does not appear in opposition to the contempt proceedings, but this does not mean that he or his representative should purposely refuse to bring to the notice of the Court any circumstance or any proposition of law, which favours the person, accused of contempt. We know of no authority in which a contrary proposition has been laid; in fact the adoption of such a view would be tantamount to assigning the role of a persecutor to the leader of the bar. Even if he himself is the prosecutor he must not let his desire to obtain conviction overshadow his duty as the State's principal law officer to be fair to the person charged with an offence.

11. During the course of arguments a number of propositions were formulated and the learned counsel appearing for the parties addressed elaborate arguments. Thus, a doubt was expressed by Mr. S. M. Baqar who appeared for the respondents as well as by Mr. Bokhari with respect to the competency of the High Court to grant bail in respect of offences which might be committed in future and it was contended that any such order would be without jurisdiction and as such its violation could not constitute contempt of Court. In support of this view reliance was placed upon the ease of Sultan All v. Nur Hussain (P L D 1949 Lah. 301). Mr. Bokhari also suggested that the bail order of 11-7-73 possibly did not extend to future offences, which might be committed by the petitioner, but this contention runs contrary to the clear language of the said order. On his part Mr. Dilawar Mahmood who represented the petitioner submitted that the High Court had the requisite jurisdic tion to grant relief to a person who was being involved in a large number of false cases under a clearly discernible pattern with ulterior motives. Consequently this Court could always order the State administration not to arrest such a person without its prior permission. However that may be, considering that the respondents have tendered an unqualified apology and thus waived their right to a contest we do not think that we are called upon to give a decision on these contentions and we reserve our opinion on the points raised to a more appropriate occasion. It is not disputed by any of the parties that the tendering of unqualified apology by the respondents amounts to an admission of all the allegations made in the application and we proceed to record our judgment on this assumption.

12. It was contended on behalf of the respondents that the unqualified apology submitted by them had the effect of purging the contempt and as such it should be regarded as enough to conclude the proceedings; however, in the event it was no considered as sufficient then it was a case where only a nominal punishment in the shape of warning or a small fine would fully meet the ends of justice. In support of these submissions reference was made to a large number of authorities such as Fakhar Alam v. State (P L D 1973 S C 525); In re: Arif Nizami (P L D 1971 S C 72); S. M. Yousaf v. S. K. Rahim (P L D 1969 S C 77); Bahawal v. State (P L D 1962 S C 476); In re: Sir Edward Snelson (P L D 1961 S C 237); Sadar-ud-Din v. Moeen-ud-Din (P L D 1969 Dacca 147); State v. Lakitullah (P L D 1959 Dacca 84); State v. Mohammad Taru Mia (P L D 1959 Dacca 335); State v. Mir Abdul Qayyum (P L D 1964 S C 661); A. K. M Awal v. State (P L D 1964 S C 562); Yousuf Ali. Khan v. State (P L D 1970 S C 350) and Mehdi Pooya v. Abul Hasan Hafizyan (1971 P Cr. L J 882). We grave considered all these authorities. The basic position in law of an apology is that even though it may be unqualified an tendered at the earliest opportunity, it is not a complete defence to a charge of contempt. This position has in fact been reiterated by two of the authori ties cited above, namely, Arif Nizami and S. W. Lakitullah v. State. Thus, no person charged with contempt can claim an acquittal as a matter of right on the footing of an apology irrespective of its quality. It is true that there are many reported cases in which an apology was considered, sufficient and no further action was taken against a contemner but that was not on the basis of any invariable rule of law. Every case proceeds on its own facts and there are; also authorities where the Courts have despite an unqualified apology proceeded to convict a contemner and visit him with C substantial penalty. Thus in the case of Arif Nizami and Attorney-General v. Yousaf Ali Khan (P L D 1972 S C 115), their Lordships of the Supreme Court did not consider the unqualified apologies of the contemners even though tendered at the earliest opportunity as constituting sufficient amends and went on to impose penalties on them. These were no doubt cases which fell under that category of contempt which is known as scandalizing the Court, but we do not see' why the same view cannot be taken in contempt s of other types when these are of the grossest nature. It is to be observed that in contempt cases a Court is itself the accuser as well as the Judge and in view of this unenviable position it is often inclined to take a very favourable view of the apology, but it does so only by way of grace and not, as already pointed out, on the basis of any imperative rule of law.

13. The learned counsel for the petitioner pointed out that in this case the apology was not tendered by the respondents at the earliest opportunity but had been delayed till the time of the recording of the evidence. Consequently, he contended, it could neither be regarded as sincere nor sufficient to purge the contempt. He also referred to the case of Yousaf Ali Khan v. State, wherein some relevant considerations were laid down by their Lordships of the Supreme Court for deciding whether an apology should or should not be accepted. This authority has no relevance to the facts before us. Their Lordships did not lay down that an apology must invariably be rejected if it was not submitted at the earliest opportunity. No doubt delay in tendering an apology is an important circumstance to be taken into account when assessing its quality but that by no reason is the sole determining factor in this regard. The element of delay has to be given its weight in the light of the other ambient circumstances. It is true that if a contemner tenders his apology only after he has raised all possible defences and when he faces the sure prospect of conviction, the Court will be most disinclined to p accept it; but then it is a case on the extreme side. An apology is essentially an act of contrition. If it springs from the condemner s heart and is unsullied by any extraneous considerations, there is no impediment in the way of the Court from accepting it even though it is not tendered at the earliest opportunity.

14. The petitioner has alleged in his application that at the time of his arrest he had brought the bail order of I1-7-73 to the notice of respondent No.

6. He has also averred that at the time when respondents Nos. 1 to 5 came to Police Station Kabirwala with the object of torturing him he informed them too of the said order. In spite of this, the respondents not only continued to keep him in custody but also committed acts of violence upon him. The respondents have not cared to contest these assertions and as such these must be accepted as substantially true. In the circumstances there can be no doubt whatever that the respondents are guilty of wilfully violating the order dated 11-7-73 passed by this Court by which the petitioner was allowed interim bail. Now the respondents are responsible police officers charged with the duty of preventing breaches of law. They are a part of the machin ery set up for the administration of justice and as such the responsibility for ensuring compliance with the orders of the Courts is certainly more onerous in their case. As such the disrespect which they have shown to an order of the highest Court of the Province cannot be condemned but with extreme severity. It is inconceivable that at the relevant time they were unaware of the consequence, which their conduct was likely to entail. Torturing of a citizen is by itself an offence and it is the duty of the police officers to prevent the commission of such an offence and, if it is committed, to bring the offender to book; but. This is a case where the police officers themselves indulged in acts of violence on a fellow citizen. Thus, they have shown utter disregard of the law, which it was, their duty to enforce and that too in violation of a Court order. Consequently, we are constrained to take a very serious view of their conduct and cannot hold that their apology, even though it is unqualified, makes sufficient amends for it.

15. It is not in dispute that the petitioner was initially arrested by respondent No.

6. It was contended by Mr. Bokhari that even according to the case of the petitioner the act of arrest had been completed before respondents Nos. 1 to 5 visited the police station at Kabirwala; apart from that these respondents were not legally competent to release the petitioner for that could only be done by respondent No. 6; consequently they were not guilty of violating the bail order in question. We do not find any force in this contention. Even though these respondents were not connected with the initial arrest of the petitioner yet they willingly became a party to his continued detention despite the existence of a bail order when they went to police station, Kabirwala with the object of maltreating him. Thus, by taking advantage of an illegal act of respondent No. 6 they must be taken to have voluntarily adopted it. They cannot now be permitted to take up the plea that they were not party to the violation of the order of this Court just because they did not have the power to release the petitioner. It is also to be observed that at the time of the maltreatment the actual custody of the petitioner in fact stood transferred to them. Therefore, they cannot say that they were not responsible for the detention of the petitioner in violation of the order of this Court.

16. As regards the sentence it may be stated that the petitioner has already instituted a complaint in the Court of a Magistrate at Multan against the respondents for offences under sections 323, 342, 352, 355, 504 and 165 of the Pakistan Penal Code. If the learned Magistrate finds the respondents guilty they will no doubt be appropriately punished. We are therefore, not inclined to take allegations of torture into consideration while considering the question of sentence. We also take note of the fact that the respondents have tendered an unqualified apology and have thrown themselves completely at the mercy of the Court. They have not pleaded any justification for their conduct and have undertaken not to repeal this conduct in future. Even though they did not tender the apology at the earliest opportunity we have no reason to believe that they are not genuinely repen ting what they have done in this case. Although we do not consider that the apology submitted by them makes sufficient amends for their conduct, we do regard it as a mitigating circumstance in the matter of assessing the sentence. Accordingly we sentence each of the respondents to imprisonment, till the rising of the Court and a fine of Rs. 1,000 or in default simple imprisonment for a period of one month. They are allowed one month from today to pay the fine.

17. Before we part with this case we wish to make it clear that the admissions with regard to the allegations of torture and wrongful arrest inferred from the unqualified apology submitted by the respondents hold good only for the disposal of these proceedings and should have no bearing whatsoever on the decision in the complaint case instituted by the petitioner. The complaint case should be decided by the trial Magistrate on its own evidence irrespective of the respondents' conviction in this case.