P L D 1975 Lahore 126 (PLP)

SARDAR MUHAMMAD IQBAL, C. J.-This petition under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973, read with sections 2 and 3 of the Contempt of Courts Act, 1926, was presented by one Iftikhar Ali with the prayer that respondents, namely-(1) Javid Dastgir Mirza, a. Magistrate of the First Class, Lahore; (2) Masood Pervez, Deputy Commis sioner, Lahore; (3) Akram Khan, Station House Officer, New Anarkali Policy Station, Lahore; (4) Province of Punjab through Collector, Lahore; (5) A. A. Nasim, Chairman, Lahore Improvement Trust, Lahore ; (6) Lahore Improve ment Trust through its Chairman ; and (7) Mazharul Haq, Project Director, Water Wing, Lahore, Improvement Trust, Lahore, be committed to prison for reasons of their being guilty of contempt of Court. The petition arises out of the following facts:-

2. Iftikhar Ali, petitioner, was in possession of a shop bearing No. SW-92-R 2/2, Circular Road, Lahore. The Lahore Improvement Trust raised objection that the petitioner's shop was an unlawful encroachment and issued notice to him to show cause why the shop should not be demolished. On the 19th of January 1974 the petitioner instituted a suit against the Lahore Improvement Trust through its Chairman, challenging the validity of the notice just mentioned and seeking a permanent injunction that the defendant in the suit be restrained from demolishing the construction. and from interfering with his possession. He also prayed for an ad` interim injunction. The suit came up before Mr. Sagheer Muhammad Khan, Civil Judge, Lahore, on the 19th of January 1974 who, on the same day, granted an injunction in favour of the petitioner in the following terms:- The petitioner learnt that the Lahore Improvement Trust had, notwithstand ing the injunction of the civil Court, approached the Deputy Commissioner, Lahore, for demolition of his shop by force. Since the Provincial Govern ment and the Collector were not parties to the first suit, he filed another, suit impleading the Province of Punjab through Collector, Lahore, and the Deputy Commissioner, Lahore, as defendants. This suit came up for hearing before Shahzada Kabir Ahmad, Civil Judge, Lahore, and he, on, the 21st of January 1974, issued an ad interim injunction to the following effect.- The defendants did not appear on that date and they were also not re presented by any counsel. The case was adjourned to the 18th of February 1974 and the temporary injunction was also extended to that date, Mr. Sagheer Muhammad Khan, the learned Civil Judge, had also meanwhile extended the operation of the temporary injunction till the 26th of February 1974.

3. The petitioner, notwithstanding the orders of the Civil Judges, apprehended demolition of his shop at the hands of the respondents and, therefore, he sent telegrams, amongst others, to the Chief Minister, Punjab and the Deputy Commissioner, Lahore, praying for intervention to, stop demolition of his shop. A copy of the telegram has been placed on record. The petitioner also submitted an application to the Deputy Commissioner. A photostat of the application dated the 21st of January 1974 is place& an the record. - It bears the following endorsement:- "H. V. C. (Sd.) Parvez Masud, D. C. 21-1-1974." The petitioner addressed yet another application on the 2nd of February 1974 to the Chairman, Lahore Improvement Trust, Lahore, after having obtained on it the remarks of Shaikh Muhammad Rashid, Minister for Health and Social Welfare, Government of Pakistan, which read as. follows:- "The Chairman L. I. T. may please see, that the stay order of the Court is honoured." The petitioner alleged that he took this application to the Chairman who' marked the same on the 5th of February 1974, to Project Director, Water Wing, Lahore Improvement Trust (respondent No. 7) but he allegedly refused to receive it. The. petitioner then moved an application for taking action against the Chairman, Lahore Improvement Trust, for contempt of Court, before Mr. Sagheer Muhammad Khan, Civil Judge, Lahore, who issued? notice against him. The application is still pending. We are not concerned with that case in these proceedings nor will we refer to it, the matter being' sub judice before a Court of competent jurisdiction. It is further alleged that on the 8th of February 1974, Mirza, respondent No. 1, came to the spot, along with some police officials and informed him that whatever may come he would demolish the shop on the 9th of February 1974 and in the meantime he may vacate the premises. On the 9th of February 1974 the Magistrate went to the spot, along with some officers of the Lahore Improvement Trust, as well as respondent No. 3 who was accompanied by' his subordinate officials, and actually demolished the shop, despite the facts that he was shown copies of the injunction orders of the civil Courts. On the back side of a certified copy of the order, dated the 24th of January 1974, issued by Shahzada Kabir Ahmad, Civil Judge, Mirza, respondent No. 1, made the following endorsement:- The petitioner then moved this application. The Magistrate (respondent No. 1) and the Deputy Commissioner (respondent No. 2) were asked to, submit their comments. Respondent No. 1 admitted the allegations, but respondent No. 2 denied all knowledge of the injunctions and repudiated the allegation that he had violated them or ordered the Magistrate to do, so. Notices were issued to both of them. They have tendered unqualified apologies and have not produced any evidence in their defence.

4. We may deal with the case of the Deputy Commissioner (respondent No. 2) first. The case of the petitioner himself is that a notice of the injunction granted by Shahzada Kabir Ahmad, Civil Judge, on the 21st of January 1974 was sent to the office of this respondent but his office refused to accept the same on the ground that a copy of the plaint was not attached therewith. There is nothing else on record to show that the injunction order was, in fact, served on the respondent. The question, however, arises whether this respondent, though not served in the manner provided by law, had the knowledge of the injunction order. In his comments . as well as in his written reply to the notice and the statement in Court he denied all knowledge of the injunction of the civil Court. The Magistrate (respondent No. 1) has also made a categorical statement that after he was apprised of the injunction of the civil Court, on the 1st of February 1974, he did not bring the same to the notice of the Deputy Commissioner for the reasons (a) that the Deputy Commissioner was under great pressure of work connected with the Islamic Summit as a result whereof he had shifted his Headquarters from his main office to that of WAPDA House; (b) that he fell = '.and remained on leave for two days, i.e., 4th and 5th of February 1974; and (c) that he thought that the order of the Deputy Commissioner was to be obeyed in preference to the orders of the .civil Courts. Learned counsel for the petitioner has, however, placed reliance on an endorsement, dated the 21st of January 1974, of the petitioner wherein he prayed that since an injunction had been grant d in his favour by the civil Courts the demolition orders passed by him be cancelled or at least deferred till the final disposal of his suit. The respondent does not deny the endorsement, but has tendered an explanation' viz., "Every day between 100 and 150 applications of administrative nature are received in my office. Such applications are submitted to me when I am in my car, when I am on tour and at times in my office. I mark .the applications to the concerned officials so that they may put up the same to me for orders, with the previous papers, if any. It is not possible for me to read all the applications. I take the applications, but if the applicant wants to say something verbally I would then hear him. Otherwise, I mark the applications to the concerned .quarters so that I could pass necessary orders after I have received reports of the concerned officials. All telegrams are received in the office, and not by me, and the official concerned opens the same, reads them and marks them to the concerned persons who again puts up the same to me for orders." The Deputy Commissioner further said that the application dated 21st of January 1974 of the petitioner bears "his signatures and it has been endorsed to the H. V. C. in the band of" his Reader, Sh. Mahboob. To a question whether he had read or knew the contents of the application, the res pondent replied in the negative and added: "Since the application had already been seen by my Reader and he had made the necessary writing I simply signed it. I was extremely busy on that day because, as far as I recall, there was some trouble in the Hashmi Memorial College where I had to go urgently." When asked whether this application was ever put up before him after he had marked it to the H. V. C., he replied in the negative and further explained: "All the applications which are received in my office are entered in the relevant registers and then put up to me. This application is not entered in the register. It appears that the application was marked, but instead of handing it over to the H. V. C., the applicant took it back. I produce the relevant register in the Court. This application is not entered there." The respondent also placed reliance on an order of 'Mr. Mumtaz Ahmad Kahtoon, a former Minister of the Province of Punjab which he sent to the Chief Secretary, Punjab Government for demolition of a particular building near the Pilot Hotel (a place quite near to the shop of the petitioner) but when the Deputy Commissioner (respondent No. 2) apprised him of an injunction order of the civil Court, the Chief Secretary directed that no action was necessary. It is contended on his behalf that if he had been in the know of the injunction of the civil Court in this case, he would have certainly advised the Lahore Improvement Trust authorities in the same manner and would have caused his Magistrate not to go ahead with the demolition of the shop in question. The petitioner, though afforded an opportunity, did not produce any evidence to controvert the stand taken up by the respondent. Thus, there is no proof that respondent No. 2 was either served or had the knowledge of the injunction order of the civil Court. The question here is not, in fact,- of the knowledge or service of the injunction on the Deputy Commissioner. The real point is whether he has violated the injunction or was instrumental in its disobedience. No doubt, Mirza had made an endorsement on the injunction order that he was demolishing the shop under the orders of the Deputy Commissioner, but in his statement he categori cally denied that the Deputy Commissioner was aware of the injunction or that he had given any direction that it should be defied. He could easily take up the plea before this Court that he acted under the orders of his superior officer, because in that event although he could not justify the action, yet he could successfully contend that he was not a free agent. The Deputy Commissioner has sworn an affidavit that be did not give any such direction. The petitioner has also rendered no proof to show that he violated the injunction or was, in any manner, instrumental to its disobedience. I-n the absence of proof, no case is made out against him and the rule is. therefore, discharged.

5. So far as Javid Dastgir Mirza, respondent, is concerned, he admits his following endorsement on the back side of the certified copy of the injunction order, dated the 24th of January 1974:- In his comments also he admitted having made the above endorsement. He did not deny demolition of the building despite the injunction of the civil Court. He admitted this fact in his written reply to the notice as well as in his statement in Court. There is thus no dispute about the fact that the respondent, in violation of the injunction of the civil Court, aided the demolition of the shop in dispute belonging to the petitioner. An injunction is a most solemn and authoritative form of order made by the Court expressly enjoining a party either to do a particular act, in which case the injunction is known as a mandatory injunction, or to refrain from doing a particular act, in which case the injunction is known as a prohibitory injunction. When an injunction order has been issued, it must be obeyed; and the only remedy of the aggrieved party is to come up in appeal to a superior Court to have the order vacated. So long as the order stands and its operation has not been suspended by another Court or by the Court which passed the order, it will not be tolerated that any person should disobey that order. It is so because the administration of justice can only be effective if it has the means to enforce Court orders and to punish acts tending to impair public confidence in the authority or integrity of the Judges who administer the course of justice. In Spokes v. Banbury Board of Bealth (1865) L R 1 Eq. 42, Wood, V-C., said that "the simple and only view is that an order must be obeyed, that those who wish to get rid of that order must do so by the proper course, an appeal. So long as it exists, the order must be obeyed, and obeyed to the letter, ". Again, in Knight v. Clifton (1971) 2 All E R 378 at p. 393 (C A) Sachs, L. J., observed that "when an injunction prohibits an act, that prohibition is absolute, and is not to be related to intent unless otherwise stated on the face of the order . . . . . ." In Eastern Trust Co. v. McKenzie Mann & Co. Ltd. 1915 A C 750 (P C), Sir George Farwell observed that it should perhaps be added that an interim or interlocutory injunction has the same force as a final order, and that the same principles of obedience apply. It is thus settled that a person cannot disregard an order or an injunction of a Court, and if he, in fact, disobeys it, he does so at his peril.

6. Learned counsel for Mirza, respondent, however, contended that disobedience of an order of injunction passed under rules I and 2 of Order XXXIX of the Code of Civil Procedure cannot be punished by the High Court as a contempt of Court. It is laid down in sub-rule (3) that "in case of disobedience, or of breach of any such terms, the Court granting an injunction, may order the property of the person guilty of such dis obedience or breach, to be attached, and may also order such person to be detained in the civil prison, for a term not exceeding six months, unless in the meantime the Court directs his release". Sub-rule (4) of rule 2 provides that "no attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached, may be sold and out of the proceeds, the Court may award such compensation as it thinks fit and shall pay the balance, if any, to the party entitled thereto". In support of his contention learned counsel placed reliance on Bahawal alias Bhaloo v. The State P L D 1962 S C 476 where it was held that "a mere failure to obey any process of the Court, when other methods of enforcing the process are available, does not amount to contempt of Court to be punished summarily by the High Court, unless the person served with the process, has done something more to exhibit a disrespect for the process of the Court, as, for example used insolent or indecent expressions or violent or profane language, on being served with such a process or assaulted or ill-treated the process-server". He also relied on M. O. Ghani v. A. N. M. Mahmood P L D 1966 S C 802 where dealing with the contention of the appellants that the proper provision to be resorted to was Order XXXIX, rule 2 of the Civil Procedure Code and no question of contempt was involved such as was punishable by the High Court, brevi manu, their Lordships of the Supreme Court held : "It will be noticed that sub-rules (3) and (4) of rule 2 of Order XXXIX, provide an adequate remedy against disobedience of an injunction order issued under sub-rules (1) and (2). With respect, we are unable to share the opinion of the learned Judges of the High Court that the alleged disobedience of the injunction order in the instant case was one, which could be dealt with properly, only under the contempt jurisdiction of the High Court. The machinery provided by rule 2 of Order XXXIX of the Civil Procedure Code was quite effective to deal with a situation of the kind that arise in the circumstances of this case". It was further observed that "the High Court would have been well-advised in restraining them selves from proceeding in contempt against the appellants" and that "if there was any disobedience of the injunction order involved, that question should have been left to be taken up and decided by the trial Judge under the provisions of rule 2, Order XXXIX, Civil Procedure Code". This is a law declared and binding on all Courts in Pakistan. The position here is, however, different. Mirza was not a party to any of the suits filed by the petitioner. No one, under sub-rule (3) of rule 2 of Order XXXIX, can be guilty of disobedience of an order except the person to whom the order is directed, and the Court has no power to visit for contempt of Court people against whom no order is made or terms imposed. The reason is this: that to commit a man for breach of an injunction is one thing, and to commit a person for contempt of Court, not because he is bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another and totally different thing. The difference is very marked. In the one case the party who is. bound by the injunction is proceeded against for the purpose o enforcing the order of the Court. for the benefit of the person who got it. In the other case the Court will not allow its process to be set at naught and treated with contempt. In the one case the person who is interested in enforcing the order enforces it for his own benefit, in the other case, if the order of the Court has been contumaciously set at naught the offender cannot square it with the person who has obtained the order and save himself from the consequences of his act. The distinction between the two kinds of contempt is perfectly well known. In Avery v. Andrews (1882) 51 L J Ch. 414 the defendants, trustees of a branch of a friendly society, were restrained by injunction from dividing certain money among the members of the branch. Shortly afterwards the defendant-trustees retired, and new trustees were appointed, who (being aware of the effect of the injunction) under an order of the branch society, divided the money among the members, including the old trustees. The Court considered, on facts, that the proceedings were an attempt on the part of the branch society and the old and new trustees to avoid the injunction, and a device for disobeying it, in which the new trustees co-operated. It was held: "Now I am asked to enforce this injunction by committal against the whole of these gentlemen, the old trustees as well as the new ones. There is no doubt about the jurisdiction of the Court. If anybody though not a person actually named in the injunction, chooses to step into the place of the man who was named, and to do the act which he was enjoined from doing, he has committed a very gross contempt of this Court." It was further observed: "Now I cannot allow that state of things to exist. It is very necessary that the orders of this Court shall be obeyed implicitly ; and if people are so foolish as to imagine that they can in this way, by a ruse, avoid and get rid of an order made by this Court, it is time that this delusion should be put an end to . . . . . " Lord Denning, M. R., in Acrow (Automation) Ltd. v. Rex Chainbelt (1971) 3 All E R 1175 held that "the Court has jurisdiction to commit for contempt a person, not a party to the action, who, knowing of an injunction, aids and abets the defendant in breaking it". In Mawazzam Ali Khan v. Shebash Chandra Pakrashi 105 I C 348 Rankin, C. J., observed that a person who abets disobedience of an injunction cannot be punished under sub-rule (3) of rule 3 of Order XXXIX and further held; "there can be no doubt that according to the English cases there does exist in the High Court in England a power to commit for contempt persons who abet disobedience of an injunction. But for the Purposes of the Mofussil Courts this jurisdiction has to be taken as it appears in Order XXXIX of the Code of Civil Procedure. In my judgment there is no reason to suppose that any such power was intended to be conferred by the terms of rule 2 of that Order. It is quite true that the phrase used is, `the person guilty of such disobedience or breach.' It is used with reference to Clause (1) and Clause (2). Clause (2) gives the Court the power of granting an injunction `on such terms as to the duration of the injunction, keeping an account, giving. security or otherwise as the Court thinks fit.' The person guilty of such disobedience or breach includes a person guilty of a breach of any such terms. It seems to me wrong to argue that Clause (3) is intended to give the Court power to visit for contempt of Court people against whom no order is made or terms imposed. I have the greatest difficulty in seeing that anybody can be guilty of disobedience of an order except the person to whom the order is directed." We are, therefore, of the opinion that since Mirza, respondent, was not a party to any of the two suits, the civil Court had no jurisdiction to take action against him under sub-rule (3) of rule 2 of Order XXXIX of the Code of Civil Procedure, and no exception can ,be taken to these proceedings.

7. A copy of the order was served personally on the Magistrate. The order was clear. It is also conceded by his counsel that the injunction in the case had been issued by a Court of competent jurisdiction upon proper proceedings. If, therefore, there was any difficulty in complying, with the injunction, the proper course was to apply to the Courts concerned for vacation of the same. It is the duty of every citizen of the country and every branch of the Executive to abide by and obey the law. The respon dent is a Magistrate. He administers justice on the criminal side. Being a judicial officer, he should have been aware of the sanctity which is attached to an order of a Court, and also of the consequences which may follow from its disobedience.

8. The petitioner made a statement in Court that he had no objection if the apology tendered by the respondents was accepted. Learned counsel contended that since the injunction was for his benefit and the proceedings were also initiated at his instance, the apology, in view of the statement of the petitioner, has purged the contempt. We are not prepared to accept this position. In a case like this, a party may be aggrieved and may initiate proceedings, but it does not mean that the Courts have no concern in such matters. Interference with the orders of the Courts affects the administration of justice. It is for the good not of the plaintiff or of any party to the action, but of the public, that the orders of the Court should not be disregarded, and that people should not be permitted to assist in the breach of those orders in what is properly called contempt of Court. We have no doubt whatsoever of the jurisdiction here, and although conscious of the fact that the Court must be very careful in matters where the discretion is so wide, and the jurisdiction so extensive and important, we do not question for a moment that this is one of those cases in which the jurisdic tion ought to be exercised, for we have no doubt whatever that the aiding and abetting in breach of the injunction here on the part of the Magistrate was in a high degree reprehensible.

9. Learned counsel then argued that the respondent was under the impression that the order of the Deputy Commissioner was to be obeyed in preference to that of the civil Court. The assumption of the respondent that the direction of the Deputy Commissioner had the effect of overriding. the order of injunction granted by the Civil Judge was totally misconceived and destitute of any valid foundation. No person is bound to obey a direction which is unlawful, nor can he be held liable for refusing to obey it. And, no one can compel a person to obey a direction which is unlawful. The respondent being a judicial officer could not claim to be ignorant of this basic and fundamental principle of legal jurisprudence. Mirza, cannot, therefore, excuse himself by saying that he was under obligation to obey the direction of the Deputy Commissioner.

10. Mr. Aitzaz Ahsan then submitted that, at any rate, the: unconditional apology tendered by the respondent had the effect of purging the contempt. Reliance in this behalf was placed by him on Fakhre Alam v. State P L D 1973 S C 525 in particular on the observations, viz., "We have already seen that at the time the apology was tendered, all the three learned Judges comprising the Full Bench were appreciative of the gesture made by the appellant, and regarded the apology as being unconditional and embodying sincere and profound regrets. On our own examination of the contents of the apology, we entirely agree with this opinion. The contemner having thrown himself unconditionally at the mercy of the Court, the contempt stood purged." He argued that this is a law declared by the Supreme Court and binding on all Courts in Pakistan and that, therefore, whenever an unconditional apology is tendered in a contempt case, it would purge the contempt, and the rule will have to be discharged. We are unable to accept this position. The observations of their Lordships have to be considered in the context of that case. We may, in this behalf, refer to the following further observations:- "We have already reproduced, in an earlier part of this judgment, the apology tendered by Yusaf Lodhi at the first hearing of the case. We have also referred to the order made on that date by the Full Bench of the High Court in which the apology was described as 'an uncondi tional written apology expressing profound and sincere, regrets' and praying that the contemner `should be forgiven'. The learned Judges appreciated this gesture, but unfortunately, however, they took the view that the allegations made against the Chief Justice of the Court being serious, it would be in the public interest to proceed to record evidence in the case, for if the allegations were true, the Chief Justice would not be entitled to hold his high office any longer. It seems to us that this was a wholly erroneous approach to the contents of the offending article. We notice that in the first place, the author of the article was making an attempt at being humorous and facetious, and therefore, some allowance had to be made for literary licence. In the second place, the allegations, even taken at their face value, were not such as could be said to reflect on the suitability of the learned Chief Justice to hold his high office. After all, the article only sought to describe a dispute which had arisen between the Chief Justice and the Chief Secretary of the Province regarding the allotment of a house- a dispute which could hardly disqualify either of the contestants from occupying their respective offices. It is a matter of common knowledge that disputes of this nature do arise with regard to the allocation of official residences, especially where there is a shortage of such accommodation. The second statement in the article, to which objection has been taken by the High Court, is to the effect that, at the instance of the Chief Justice, the Speaker of the Provincial Assembly attempted to pressurise the Chief Minister of the Province so as to get the house vacated from the Chief Secretary. We consider that the High Court obviously read much more into this statement than is conveyed but the words used by the author. Assuming that a dispute had arisen between the learned Chief Justice and the Chief Secretary & the Province over the allotment of a particular house, there would be nothing immoral, irregular or illegal in the Speaker of the Provincial Assembly trying to sort out matters with the Provincial Chief Minister, even though he may be doing so at the instance of the Chief Justice. We are accordingly firmly of the view that the High Court misdirected itself in taking these allegations in such a bad light as to consider that, if true, they would disentitle the Chief Justice from holding his office. In the circumstances, we consider that it was altogether unnecessary for the High Court to undertake the extensive enquiry which followed the order of the 27th of October 1972. Yusaf Lodhi having admitted the authorship of the article and having tendered an unconditional apology which was appreciated by the High Court, all that was necessary was to accept the apology and discharge the rule." It is manifest from these observations that their Lordships did not, in fact, hold Yusaf Lodhi guilty of contempt of Court, and it was only in the peculiar circumstances of that case that it was held that the apology submitted by Yusaf Lodhi at the very first hearing of the case should have been accepted by the High Court, and the proceedings terminated by the discharge of the rule issued against him. In so holding, it was observed that the object of contempt proceedings being not the vindication of the character or conduct of an individual Judge, but to protect the Court from attack and calumny, so as to keep the fount of justice pure and unsullied, and to maintain public confidence in the ability and power of the Courts to administer justice, it stood achieved once Yusaf Lodhi had .submitted a sincere and unconditional apology. The facts of the present case, are however, different. The contempt ;petition in this case came up for the first time for hearing on the 28th of February 1974 when the respondent was directed to submit his comments. He filed reply on the 5th of March 1974, and, though admitted all the allegations of the petitioner, there was in it not one word of remorse, contrition or apology. The case was adjourned to the 7th of March 1974, in order to enable the petitioner to put in rejoinder. Notice was issued to the respondent on the 7th of March 1974. Thereafter, the case came up for hearing on the 14th, 22nd and 25th of Match 1974, but the respondent did not elect to tender apology. It was only on the Ist of April 1974, that better sense prevailed upon him and he filed an affidavit apologising "for any contempt he may be found to have committed". In these circumstances, we cannot concede the broad proposition that in all cases the moment an apology is tendered by the contemner, the contempt however gross and inexcusable it may be, stands automatically purged. The question whether or not the apology has the effect of purging contempt, in our view has to be decided with reference to the facts and surrounding circumstances of each case. It is indeed difficult for us to lay down a general proposition and thereby give a licence to a person who may, in a given case, defame even a Judge of the highest Court of the country by wantonly traducing his integrity and honesty in the vilest possible manner, and then come up with a few words of apology reduced into writing on a piece of paper. If the law of contempt were as contended for, the whole administration of might be disgraced, because, in that case, the honour of even the superior Courts would be at the mercy of disgruntled litigants. An apology in a contempt case cannot be deemed to be a weapon of defence, but is only a mitigating circumstance, and that too if the contemner sincerely . Surrenders himself unconditionally to the judgment of the Court. In re: Arif Nizami and 2 others P L D 1971 S C 72 the contemners had tendered unqualified apology without attempting to raise any kind of defence, at the earliest possible opportunity. Even then their Lordships convicted them for contempt of Court and accepted the apology only as a mitigating circumstance by observing "An apology does not provide the contemner with an absolute excuse for the offending publication nor does it entitle him to a discharge as of right for it cannot remedy the evil caused or the harm done to the administration of justice by shaking the confidence of the public in the Court or a particular Judge of the Court. It is only a mitigating circumstance and no more but even in this respect an apology in order to dilute the gravity of the offence must evidence a real contriteness and an earnest desire to make amends or as has been said in some cases must be a `manful confession of conscious wrong doing' . . There is no doubt that taking all the circumstances of the case into consideration there may well be cases where an apology may by itself be considered to be a sufficient amend and no further sentence may be considered necessary or only a warning may be deemed to be adequate but each case will depend upon its own facts. But where the circumstances, even taking the most charitable view, are such that the inference is irresistible that there was lack of care and negligence on the part of the contemners then it is difficult to pass it over without some penalty." Taking exactly the same view in Attorney-General for Pakistan v. Yusaf Ali Khan P L D 1972 S C 115 and having regard to the unqualified apology tendered, their Lordships convicted the contemner by observing : "In the present case, the respondent deliberately committed a gross contempt for which his apology in writing cannot be consid ered to be a sufficient amend for excusing him altogether, although he tendered the apology unconditionally and withdrew all the allegations without any reser vation. Having heard the respondent personally, there is, however reason to believe that he was ill-advised to send so offensive a letter to the President." We have, therefore no doubt whatsoever that an apology is only an extenuat ing circumstance in mitigation of the sentence, and would treat the apology tendered by the respondent only as a mitigating circumstance.

11. The last argument raised was that, though the respondent did not wish to qualify the unconditional apology and thereby attempt to justify his action the Court should take into consideration the fact which actuated Mirza to take the action complained of in these proceedings. Learned counsel submitted that in early January Mirza had received instructions from his superior authorities to remove all illegal encroachments on the route to Badshahi Mosque, and that the matter was to brook neither delay nor hindrance as the success of the Islamic Summit was the foremost consideration with the Government of the Pakistan as also with the entire peoples and nations of the Islamic World. The learned counsel added that, in view of the very short time available at his disposal, the respondent could not contact the higher authorities to seek guidance as to the effect of the order of injunction, and proceeded to demolish the premises for a high and important cause. He prayed that in these circumstances, the respondent be dealt with leniently. We cannot accept the contention. The Islamic Summit was held in Lahore in the fourth week of February. Mirza, in his statement, admitted that as early as 1st of February 1974, it was brought to his notice that there was an order of the civil Court restraining demolition of the shop in question. The shop was actually demolished by him on the 9th of February 1974. He could, before that, bring it to the notice of the authorities that there was an injunction of the Court. He could also suggest to them to take steps for vacation of the same. He, however, did not do so. We may also observe that the alleged encroachment by the petitioner was not dis covered while initiating arrangements for the Islamic Summit. The dispute about that was in existence since October 1973, when there was no decision that the Islamic Summit would be held in Lahore, or at least it was not by then made known to the public in general. The Magistrate demolished the shop pursuant to a request by the Lahore Improvement Trust, who had also given a notice in 1973, to the petitioner that the alleged encroachment should be removed within three days of the receipt of their notice because they had "to lay a sewer line." Therefore, it is wholly wrong to say that the demolition of the shop was necessary, or that it was, in fact, demolished in connection with the arrangements which had been undertaken in pur suance of the impending Islamic Summit. In the circumstances, we cannot attach much importance to this contention of the learned counsel.

12. On the above view of the matter, we hold Javid Dastgir Mirza, Magistrate of the First Class, Lahore guilty of contempt of Court and would convict him accordingly. The next question is as to what should be the punishment. Keeping in view the apology tendered by the respondent (though not at the earliest possible opportunity) and also the fact that he has assured this Court that he had no malice in fact and that he shall be careful in future, we take a lenient view and would sentence him till the rising of the Court, with a fine of rupees one thousand (Rs. 1,000.00) in default of payment of which be shall suffer simple imprisonment for one month. ORDER The respondent may deposit the amount of fine within one month. S. A. H.