P L D 2020 Balochistan 26 (PLP)

ROZI KHAN BARRECH, J.-- On 17th February 2016, the following note was placed before the Hon'ble Justice Muhammad Ejaz Swati, learned Vacation Judge by the worthy Registrar of this Court: "Information received from District and Sessions Judge, Kalat with regard to raid at the house of Qazi Kalat and his arrest by Assistant Commissioner, Kalat, Statements of District and Sessions Judge, Kalat and Qazi Kalat may be placed before the Hon'ble Vacation Judge for kind perusal and appropriate orders, please."

2. The learned Vacation Judge, after framing the following points, ordered for placing the matter before the Hon'ble Chief Justice: (i) As to whether a criminal case can be registered against a Judicial Officer in respect of anything allegedly done or purported to be done in discharge of his duty or in his capacity as holder of such Judicial Office without the prior permission of Chief Justice of the High Court concerned? (ii) As to whether, in order to protect the Judges from frivolous and malicious prosecution, prior sanction is necessary from the competent authority? (iii) As to whether any action taken by the executive against the Judicial Officer without prior sanction of the competent authority will expose the honest and fearless Judges to be harassed? (iv) As to whether a criminal case can be registered under Section 154 Cr.P.C or investigated against the Judicial Officer without prior permission of the Chief Justice? (v) As to whether a Judicial Officer of the lower judiciary can be arrested without prior intimation of the District Judge or the High Court, as the case may be? (vi) As to whether, even in case of formal arrest, a Judicial Officer, so arrested, can be taken to a police station, without the prior orders or directions of the District and Sessions Judge of the concerned district? (vii) As to whether statement of the Judicial Officer, who is under arrest, can be recorded by the Investigating Officer or his medical test can be conducted, except in the presence of legal advisor of Judicial Officer concerned or under Judicial Officer of equal or higher rank? (viii) As to whether a Judicial Officer can be handcuffed?

3. On the direction of Hon'ble Chief Justice, the matter was placed before a Division Bench of this Court and on 19th February 2016 the following order was passed: "We have gone through the report submitted by the District and Sessions Judge, Kalat. Keeping in view the nature of allegations levelled by the parties against each other, we are inclined to issue a Commission consisting upon Hon 'ble Mr. Justice Naeem Akhtar Afghan, who to probe into the matter and file a detailed report along with recommendations by recording evidence and statements of parties. We expect the Commission shall submit its report within a period of two weeks. "

4. The Commission, after conducting a full-fledged enquiry, submitted its report with the following conclusion: "CONCLUSION: On the basis of the evidence recorded by the Commission, it is concluded that Qazi has deposed falsely on oath before the Commission; that he has abused and misused his position as a Judicial Officer by developing contacts with a lady litigant (Bibi Zubaida) and by calling/dating her at his official residence on 16.2.2016 with ulterior motives when her civil suit for correction of her date of birth was also pending before him; That on the said day, prior to fulfillment of the desire/ulterior motive of Qazi, Bibi Zubaida managed to enter the attached bathroom of the living room of Qazi wherefrom, she sent two messages to AC through SMS who being in connivance with Bibi Zubaida was already present outside the house of Qazi; That on the said date Bibi Zubaida appeared from the attached bathroom of the living room of Qazi on entering of AC in the living room of Qazi; That on 16.2.2016 AC and Bibi Zubaida were in connivance to trap the Qazi; that on the said day, Bibi Zubaida was more affiliated with AC than Qazi; That it was the lust of Qazi for Bibi Zubaida which provided an opportunity for the trap,. That throughout the episode, AC abused and misused his Executive Authority to satisfy his ego; that AC acted in vengeance due to issuance of his bailable warrants on 13.10.2015 and 20.10.2015 by Qazi in execution proceedings of a Decree,. That AC did not inform the High Court, the Sessions Judge Kalat, the Commissioner Kalat, the DPO Kalat or the SHO Kalat prior to raid or soon after the raid; That AC availed no permission from the High Court nor informed Sessions Judge Kalat about taking Qazi, a Judicial Officer, into his custody; that the area of occurrence was falling with the jurisdiction of Police Station Kalat, but instead of taking Qazi to PS Kalat, AC took him to levies line Kalat and kept him confined for hours without any FIR in a room of the quarter of Risaldar Levies Abdul Zahoor which is part of levies thana; That after satisfiiing his ego by obtaining written apology from Qazi, AC contacted Commissioner and Sessions Judge Kalat at 5:15 p. m; that while taking Qazi into custody and taking him barefoot to Quarter of Risaldar Levies Abdul Zahoor in Levies Thana Kalat, AC and levies personal mishandled Qazi and did not proceed against a Judicial Officer in accordance with law."

5. After receipt of Commission report, notices were issued to the Assistant Commissioner, Qazi as well as to the learned Advocate General and copies of the report were also supplied to them. It is evident from the record that in response to the notices, Qazi tendered his resignation while the Assistant Commissioner submitted his unqualified apology, operating part whereof reads as under: "That in such circumstances being the Junior Commission Officer and having bright future being young age place himself before the mercy of this Hon 'ble Court and tender unqualified apology an [sic] for exonerating the replying respondent and pardoned accordingly in the interest of justice, fair play and equity."

6. We have heard Mr. Amanullah Kanrani, learned counsel for respondent Sultan Ahmed, Assistant Commissioner, Mr. Adnan Ejaz Sheikh, learned counsel for the then Qazi and Mr. Shai Haq Baloch, learned Additional Advocate General and also perused the available record as well as report of the Commission, which established the following facts and circumstances; that the Qazi, Kalat found that the police authorities and District Administration of Kalat were not implementing the orders of Qazi Court in Execution Application No.02/2015 and had adopted an attitude of indifference to the Court's orders. On account of failure on the part of Assistant Commissioner and SHO P.S. Kalat, besides issuance of their bailable warrants, show cause notices for contempt of Court proceedings were also issued. In this backdrop, on 15th February 2016, the house of Qazi was raided by the Assistant Commissioner and a lady constable, namely, Bibi Zubaida was allegedly recovered from the dwelling house of Qazi Kalat. He was arrested and taken to Levies line Kalat by the Assistant Commissioner and subsequently after 8/9 hours in levies detention, was released due to interference of the then Commissioner Kalat, Sessions Judge and District Police Officer Kalat.

7. Mr. Amanullah Kanrani, learned counsel for the alleged contemnor contended that the respondent by his demeanor felt repentant and apologetically gave assurance that he would remain careful in future and show complete obedience to the court Orders and decorum. He further submitted that the contemnor having thrown himself unconditionally at the mercy of the Court, the contempt stood purged. At first sight, the script is impressive, however, when examined in juxtaposition with the act committed by him and evidence collected by the Commission, a different picture emerges. Submission of an unconditional apology by the alleged contemnor in every case is neither a condition precedent, nor a point of ego or prestige for the Courts, which practices are to be adhered to in each case as a rule of thumb before discharging the notice. Similarly, mere submission of unconditional apology is also no ground for further inaction in the proceedings or discharge of such notice without looking into the intent behind it. Had the instant one been a simple case of raid or arrest of a judicial officer from his house, the contemnor could have been excused on the ground that he was not aware of the legal position regarding the arrest of a judicial officer but the acts of dragging, manhandling and beating the judicial officer in view of the general public can by no stretch of imagination be regarded as innocent and bona fide acts, rather it appears to be a flagrant attempt to undermine and lower authority of the Court. In such like cases the Courts, in order to safeguard the dignity and honour of the Courts are not reluctant to initiate contempt proceedings against the contemnors.

8. Reverting to the next contention of Mr. Amanullah Kanrani, learned counsel for the contemnor that the very proceeding of contempt was not initiated in terms of Article 204 of the Constitution, which confers power on the Supreme Court and the High Court to punish for contempt of Court and that such power being vested in Court, the Hon'ble Vacation Judge or the Hon'ble Chief Justice who have passed the orders dated 18.02.2016 on the note of the Registrar for initiating the proceedings were not orders of Court which has to be of a bench of the Court and not of the Hon'ble Chief Justice alone. We are not impressed by the said contention of the 1earned counsel; firstly, for the reason that the perusal of record shows that the occurrence in question had taken place during winter vacations and the learned Vacation Judge after going through the contents of note submitted by the Registrar, ordered the same to be placed before the Hon'ble Chief Justice, who subsequently ordered the same to be placed before a division bench and the proceedings were accordingly initiated and an enquiry commission was constituted. After receiving the findings of the Commission, notices were issued to the parties within the purview of Article 204 of the Constitution and sections 3 and 5 of the Contempt of Court Ordinance, 2003; secondly, the provision of section 7 of the Ordinance also furnish a complete answer to the said objection which inter alia envisage that in case of criminal contempt, a superior Court may take action, suo motu; or on the initiative of any person connected with the proceedings in which alleged contempt has been committed; or on the application of the law officer of a Provincial or the Federal Government. The said Ordinance was promulgated to define and limit the powers of Courts in punishing contempt of Courts and to regulate their procedure in relation thereto. There is no provision to curtail the power of this Court with regard to contempt of subordinate Courts. Section 7 prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court. Both the Courts have power to take cognizance of criminal contempt and it provides three modes for taking cognizance i.e. on its own motion or on the motion made by the Advocate-General or any other person connected with the proceedings in which the alleged contempt has been committed.

9. On merits, Mr. Amanullah Kanrani, without denying or disputing the whole episode, contended that since neither was any formal charge framed; nor was evidence recorded, as such, no punishment could be imposed upon the alleged contemnor. We find no merit in the objections raised on behalf of Sultan Ahmed, Assistant Commissioner, Kalat. Since there was serious dispute between the parties with regard to the entire incident, the Court appointed Justice Naeem Akhtar Afghan, Senior Judge of this Court to inquire into the incident and to submit report to the Court. Justice Naeem Akhtar Afghan was appointed to hold the inquiry on behalf of this Court and not under the provisions of the Commission of Inquiry Act. The learned Judge examined witnesses including Sultan Ahmed, Tufail Ahmed, the then Deputy Commissioner Kalat, Nazir Ahmed, DPO Kalat and other witnesses. Justice Naeem Akhtar Afghan afforded full opportunity to all the concerned persons to lead evidence and cross-examine the witnesses. He submitted a detailed report dated 2.05.2016 to this Court. On receipt of the report, this Court directed copies to be delivered to concerned parties and permitted the parties including contemnor to file their objections if any, before this Court. Justice Naeem Akhtar Afghan was acting on behalf of this Court and he had full authority to record evidence and cross-examine witnesses and collect evidence on behalf of this Court. Since, the main incident of Qazi's arrest, assault was connected with several other incidents which led to the confrontation between the Qazi and Local Administration, learned Commission was justified in recording his findings on background and genesis of the entire episode. So far as non-framing of charge is concerned, it needs examination of the record which reflects that instead of denying or disputing the incident or findings of the learned Commission, the contemnor Sultan Ahmed filed his unqualified apology on the first date of hearing. Admittedly no formal charge was framed after submitting of unqualified apology but it is not the case that the contemnor was misled or prejudiced on account of such omission. An omission or defect in charge which does not mislead or prejudice the right of accused could not be regarded as material and made the basis to vitiate a trial on the ground of error or omission in framing of charge. The jurisdiction to initiate the proceeding and take decision of the contempt is inherent in a High Court or Supreme Court and the procedures of the Criminal Procedure Code do not apply to contempt proceedings. Section 5 of the Code of Criminal Procedure lays down that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Since, the contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt proceedings cannot be regarded as criminal proceedings because it may end in imposing punishment on the contemnor. A contemnor is not in the position of an accused, it is open to the Court to cross-examine the contemnor and even if the contemnor is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence. This peculiar feature distinguishes contempt proceeding from criminal proceeding. Contempt proceeding is sui generis, it has peculiar features which are not found in criminal proceedings.

10. The Qazi, under the provisions of Dastoor-ul-Amal, Kalat, Deewani deals with civil disputes at District level who administers justice to ensure, protect and safeguards the rights of citizens. The subordinate Courts at the District level cater to the needs of the masses in administrating justice at the base level. By and large the majority of the people get their disputes adjudicated in subordinate Court. It is, in the general interest of the community that the authority of the subordinate courts is protected. If the Civil Judges, Judicial Magistrates and Qazis are led into a trap by unscrupulous officers, and if they were assaulted, hand cuffed, the public is bound to lose faith in courts, which would be destructive of the basic structure of an ordered society. If this is permitted, Rule of Law shall be supplanted by the Civil servants and Police.

11. The instant case is of exceptional nature as the incident created a situation where functioning of the subordinate courts all over the province was adversely affected and the administration of justice was paralyzed, therefore, this Court took cognizance of the matter. The incident in question under mined the dignity of courts in the province. Judicial Offiers, Qazis, Judges and Magistrates all over the province were in a state of shock. They felt insecure and humiliated. Number of Bar Associations passed resolutions and went on strike. The detailed report of commission establishes the fact that the Assistant Commissioner was the main character in the entire incident and he had planned the entire episode to humiliate the Qazi in the public eye. The Assistant Commissioner was in league with Mst. Zubaida and prior to her entrance into the house of Qazi, the same was surrounded by him in order to trape the Qazi and in this manner not only decorum of Court was violated, but he also resisted the learned Sessions Judge, Kalat when he made an attempt to resolve the dispute.

12. Now the question arises what punishment should be awarded to the contemnor found guilty of contempt. In determining the punishment, the degree and the extent of part played by the contemnor has to be kept in mind. As observed hereinabove, the Assistant Commissioner Sultan Ahmed was the main actor in the entire incident and he had planned the entire episode. In order to maintain the dignity, respect of the judges as well as the Courts functioning in the far-flung areas, where they have been made directly targeted by the contemnors while besieging their houses and Court premises with armed personnel. The manhandling of the subordinates Courts judges at the hands of condemners, particularly administrative and police officers is rampant and most of the cases end up without effective punishment to the perpetrators. A handful of miscreant persons, belonging to different walk of life had been tarnishing the image of the justice system, non taking of action against the contemnor would lead to create a situation of helplessness for the judicial officers, therefore, for these reasons we are of the opinion that it is a serious case where we have decided to exercise the contempt powers so it may serve as a deterrent for likeminded persons in future. Though the contemnor deserves maximum punishment being the main actor, yet we are inclined to take lenient view against the contemnor for the reasons that from the day one notice was given to him, he tendered unconditional apology. For the foregoing reasons the contemnor i.e. Sultan Ahmed, former Assistant Commissioner Kalat is convicted under section 4 of the Contempt of Court Ordinance and sentenced to pay a fine of Rs.5,000/ with imprisonment till rising of the Court. In default in payment of fine, the contemnor shall further undergo imprisonment for a period 15 days. Before parting with judgment for providing guideline, it would be suffice to add few more words in order to answer the points formulated by my brother Judge while referring the matter to the Hon'ble Chief Justice. Question as to whether a judge of District Judiciary can be arrested? The answer is yes because no person, whatever his rank or designation may be, is above the law and he must face the penal consequences of infraction of criminal law. A Qazi, Magistrate, Judge or any other judicial officer of District Judiciary is liable to criminal prosecution for an offence like any other citizen. The said question came for consideration before the Hon'ble Supreme Court of India in the case of "Delhi Judicial Service Association v. State of Gujarat and others' 1991 AIR 2176, 1991 SCR(3)

936. The apex Court held that in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, the following guidelines were laid down:- A) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be. B) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected. C) The fact of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court. D) The Judicial Officer so arrested shall not be taken to a police station without the prior order or directions of the District and Sessions Judge of the concerned District, if available. E) Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisors and Judicial Officers, including the District and Sessions Judge. F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Advisor of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available. G) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over-powered and handcuffed. In such case, immediate report shall be made to the District and Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court"

13. The aforementioned guidelines are not exhaustive but are the minimum safeguards to be observed in case of arrest of a judicial officer and in order to avoid any such situation in future, it should be followed. Copy of this judgment be sent to the Chief Secretary, Government of Balochistan for placing the same on personal file of Sultan Ahmed, the then Assistant Commissioner Kalat, now Deputy Commissioner and compliance report be sent to the Registrar of this Court within seven days after receipt of copy of this judgment. MWA/147/Bal. Order accordingly.