1990 SCMR 215 (PLP)

On 6‑12‑1974, A.C. Kharian along with the appellants, two Foot Constables, Lambardar Rehmat Khan and his supporters came to the spot. They started dismantling the boundary wall of the Ahata of Sikandar Khan. Nadar Khan objected and asked them as to why that was being done. A.C. Kharian told them that in case anybody resisted he would be taken into custody. Nadar Khan did not pay much attention to that and again enquired as to what authority they had to demolish the boundary wall. On this Nadar Khan was put into a jeep by the appellants. The supporters of Rehmat Khan started demolishing the wall. This was done at the instance of the appellants. Sikandar Khan was not present. Females resisted but of no avail. A portion of the boundary wall was demolished. The appellants left with Nadar Khan. Sikandar Khan came to Know of the incident later on. He rushed to Police Station Kharian and found his brother there. Appellants told him that Nadar Khan had been detained under the orders of A.C. Kharian. Sikandar Khan asked for the orders. Instead he was beaten and turned out of the Police Station. He appeared before the A.C. on the following day. Still his brother was not produced. He again went to the Police Station. Nadar Khan was still there. He had been illegally detained by the S.H.O. He requested the S.H.O. to release him but he was told that Nadar Khan was in the Police Station under the orders of the A.C. Sikandar Khan was informed that as long as the Kotha and the boundary wall were not demolished, question of releasing Nadar Khan did not arise. On the evening of 8.12.1974 Nadar Khan was set free. He narrated the entire incident to his brother Sikandar Khan. He further told him that he had been directed by the police to appear alongwith Sikandar Khan at the Police Station. On 10‑12‑1974 at 8 o'clock in the morning the two brothers went to the Police Station. Both were detained. They were not allowed to leave the Police Station unless they promised to demolish the Kotha and the boundary wall. Sikandar Khan managed to slip away. Nadar Khan remained in the Police Station. These were the facts which led to the filing of habeas corpus petition in the Lahore High Court by Sikandar Khan. Initially the petition was heard by a learned Judge of the High Court who deputed the Bailiff to recover Nadar Khan. The detenu was produced in Court on 16‑12‑1974. His statement was recorded. Thereafter the learned Judge sent the case to the Chief Justice for necessary orders. Appellants were directed to appear before the Chief Justice. The Chief Justice ordered that the case be heard by a Division Bench. This is how the matter came before the D.B. who passed the impugned judgment and hence this appeal. Raja Mohammad Anwar, Senior Advocate, appearing for the appellants at the very outset submitted that his clients tender unconditional apology and throw themselves at the mercy of the Court. The appellants themselves did the same. Relying on the case of Fakhre Alam v. The State and another (PLD 1973 SC 525) submitted that the apology be accepted; conviction and sentence set aside and the appellants be acquitted. It was for this reason that it was observed earlier that it is not necessary to discuss the entire evidence nevertheless we have perused the same. The Bailiff's version was very pathetic. It was a tale of woe. According to the Bailiff he was beaten, kicked, deprived of his belongings and at one stage threatened to be shot at pistol point. Timely intervention by Fateh Mohammad saved the situation. The Bailiff in his report submitted to the High Court, stated asunder. "... I may be allowed to submit that the insult and illegal detention for more than 6 hours in the Police Station at the hands of the S.H.O. and A.S.I. the Head Constable and the Constables of Kharian Police Station is as such, which perhaps I may not forget for ever." This was the way the appellants behaved with the Bailiff‑‑so disgusting and unbecoming of the police officers who are the custodian of law and through whom the law is to be enforced. They are not expected to act in a such like manner. On the other hand it is a part of their duty as disciplined force to respect law. We were not inclined to accept the apology but for the fact that the appellants have realized that no one is above law irrespective of his status, office and position in life and that even the time factor cannot defeat the due process of law. They were really ashamed of what they did. They felt sorry. They bowed their heads with shame. Their unconditional apology was genuine and sincere. The process issued by a Court of law must be obeyed irrespective of any excuse. "There is not to reason why." In the case of Fakhre Alain (Supra) it was observed as follows. "...The contemner having thrown himself unconditionally at the mercy of the Court, the contempt stood purged." For the foregoing reasons we accept the appeal, set aside the conviction and sentence and acquit the appellants. The appellants are on bail. They are discharged of their bail bonds. M.A.K./M‑1045/S Appeal accepted.