Haji Saeed Gul moved an application for initiation of proceedings for the contempt of Court of E. A.
C. Magistrate 1st Class, Hangu, against Mir Alam Khan, S. H. O., Police Station, Tal, Tehsil and District Kohat, alleging that though he was valid holder of permits for the transport of 345 bags of rice the same were seized by the police on the 7th of December, 1978 and they registered a case under section 3/6, Foodstuff Control Ordinance. The petitioner thereupon moved the Magistrate 1st Class, Hangu, for the release of the rice and he by order, dated 14-12-1978, directed the release of the same on his furnishing a bond in the sum of rupees one lac with two sureties. The bond was duly furnished and the Magistrate 1st Class. Hangu, directed the S. H. O. Tal, on 14-12-1978, to hand over the rice to the owner (the petitioner). This order was taken to the S. H. O. And he was requested to return the bags but the latter not only refused to comply with the directions of the Court but also tore the order that was produced before him. Thereupon the petitioner applied to the Magistrate 1st Class, Hangu but it appeared to him that no action has been taken by that Court.
2. The application was moved in this Court on the 3rd of January, 1979, and I directed the issue of a contempt of Court notice on 13-1-1979. It appears that on that very 'day a letter, addressed to the Registrar of this Court, was received from the Magistrate concerned, namely, Mian Muhammad Saleem, wherein he supported the information laid before the Court by the petitioner, Haji Saeed Gul, adding that he issued a notice to the respondent-S. H. O. On 28-12-1978 to show cause within seven days as to why the matter may not be reported to the High Court for his prosecution but he was not in receipt of any reply by then. The learned Magistrate further submitted that in his view, the action of the respondent not only tantamounted "to direct interference in the judicial functions but also disgraced and humiliated the Court and the judiciary in the estimation of the Public and given (sic) impression among (sic) the Public that a Sub-- Inspector is superior than the Court".
After these observations he ended the letter by requesting this Court that since the respondent had committed contempt, he may be prosecuted.
3. In reply to the show-cause notice, issued by this Court, the respondent appeared in Court on 14- 2-1979 and submitted an explanation but the story given therein was challenged by the learned counsel for the petitioner. The learned counsel also submitted that if the permits were forged, the respondent may investigate the case and proceed in accordance with law against his client. He further submitted that there has been much high handedness on the part of the respondent and he would, therefore, press for the decision of the Court so that the matter is taken to its logical conclusion. The explanation that was given by the respondent was that Haji Saeed Gul and Rashid Gul were being proceeded against under F. I. R. No. 211 of 7th December, 1978, on the charges under sec--tion 3/6 of the Foodstuff Control Ordinance and sections 426, 468 and 471 of the Pakistan Penal Code. That the petitioner never gave to him the ' f order of the Court for the release of the rice and, therefore, the question of his tearing of the order does not arise. He added that the accused were smugglers and they bad just levelled false accusations against him to harass him and torture him mentally. He, however, conceded that he had heard from the Prosecuting Sub-Inspector, Hangu, about the return of the rice and that he had informed his superiors about it. After this he came to know that Deputy Commissioner, Kohat, had stayed the implementation of the order of the E. A. C. Regarding the release and that he also came to know that the Sessions, Judge, Kohat, recalled the order of the Deputy Commissioner and restored that of the E. A. C. He, however, added that none of those orders reached him for necessary action. He conceded that the rice was in the custody of the Police and that he delivered it to the accused on 25-1-1979, pursuant to the verbal directions of the Assistant Commissioner. He further added that permits, covering the rice, are bogus and he has on investigation found them forged and bogus. Towards the conclusion he said that if the Court entertained any doubt about his conduct, in deference to the orders of the Court, he prayed for pardon.
4. As already indicated the story put by the respondent was challenged and, therefore, both the parties were allowed, to adduce evidence. Mr. Muhammad Salim Khan, Magistrate concerned was, however, examined as C. W.
5. Haji Saeed Gul deposed that the purchased permits for import of 350 bags of rice issued by P. A.
Kurram and put 100 bags each in three trucks and the 4th truck was loaded with 50 bags. The trucks crossed the barriers at Tal on 7-12-1978 and that he did not take the rice onwards because he was apprehensive of d1sturbances due to Moharram. On that very day at about diger time the Police took into possession 350 bags but in the memo of recovery they showed 344 bags. He himself was absent but they registered a case under section 3/6, Foodstuff Control Ordinance. He moved for bail before arrest on 9-12-1978 and got it on 12-12-1978. On the 13th of December, 1978 he made an application to Magistrate 1st Class, Hangu (Mian Muhammad Salim). On 14-12-1978 the said Magistrate passed the order (copy Annexure A) that the goods should be released if security of one lac was furnished. The security bond (copy Annexure E) was furnished and an application, as in Annexure D, was moved and thereupon the Magistrate issued an order for the release of the rice (copy of that order being Annexure C). However, when the orders were taken to the police station, the respondent S. H. O. Did not hand over the rice. He wanted to satisfy himself about the kind of the rice. The S. H. O. Did not accept the suggestion of the petitioner that local shopkeepers should be consulted to satisfy him and eventually Jamal Per Food Inspector, Peshawar, visited Tal Police Station on 15th December, 1978. On the 16th of December, 1978 the petitioner went to the Police Station for the second time at about 9 a. m. At that time he was accompanied by Hazrat Khan and Gul Rehman. The S. H. O. Was, however, not present. The Petitioner then made a third visit to the Police Station at about 3-30 p. m., accom--panied by Hazrat Khan and Gul Rehman. He gave copy of the orders of the Magistrate, Annexure C, to the S. H. O. But the latter said that this was not within the powers of the Court to direct the delivery of the rice and he tore the papers. Thereupon the petitioner came out. He remained in his village for about three days and when he visited his counsel, Shah Alam Khan on 20-12-1978 and consulted him be gave an application to the Court, along with an affidavit, copy of which is Annexure E.
6. The story given by the petitioner is corroborated in all material particulars by Gul Rehman, when the latter says that he accompanied the petitioner, in the morning, along with Hazrat Khan, and went again at about 3-30 p. m. To the police station and that when the order was given to the S. H.
O. He said that the Court had no powers and tore the papers. Gul Rehman appears to be an independent person and, taking into consideration that he is an ex-employee of the Police, one can safely rule out that he joined Haji Saeed Gul in fabrication of a false story against an employee of his own Department, who enjoyed the status and powers of Station House Officer.
7. The Magistrate, Mian Muhammad Saleem, when examined as C. W. 1, corroborated the story of the petitioner to the extent it related to him and said that he did issue the order copy of which is Annexure C. He affirmed that on the 20th of December, 1978, he was informed by the petitioner that the order had been torn and that the goods had not been delivered to him and that he issued a notice on 28-12-1978 copy of which is Exh. C-I, to the respondent. He added that though this notice was received by the respondent on 30-12-1978 he did not give a reply. He admitted that the respondent gave reply on 21-1-1979 and copy of the same is Exh. C-II. He stated that he moved this Court for initiation of the contempt proceedings through letter, copy of which is Exh. C-III, and that it was accompanied by the relevant documents, Exh. C-I to Exh. C-IV. The Magistrate also armed that since on 1st of January, the Sessions Judge, was on leave, the Deputy Commissioner held the order of the Magistrate in abeyance but this order of the District Magistrate was vacated by the Sessions Judge. On 15th of January, 1979, vide Annexure F. The Magistrate further deposed that on 25-1-1979 the prosecution moved another application copy Exh. C-VI, praying that the goods be handed over to the Food Controller for they wanted to add new sections of law but he forwarded that application to the S. D. M., who declined to entertain it and thus the goods were returned on 25-1- 1979.
8. The respondent appeared as his own witness and affirmed that he took into possession 344 bags of rice and 6 bags of maids on 7-12-1978 and registered a case on that very day under section 3/6 of the Foodstuff Control Ordinance. After a few days the petitioner got bail before arrest from the Sessions Court and brought to him the bail order. He, however, did not bring any release order for the rice to him. During the investigation it transpired that the permits were bogus and he, therefore, collected the relevant record from Political Agent Para Chinar. He explained that after the investigation he added sections 420, 468 and 471, P. P. C. It may be mentioned that on cross- examination of the respondent it transpired that his claim that the petitioner was a smuggler was not sustainable. The only conviction that the petitioner had was one under section 188 of the P. P. C.
On 20-2-1978 of a fine of Rs. 200 for being found in possession of Gur in violation of an order under section 144, Cr. P. C. The claim of the respondent that he saw the petitioner for the first time after the seizure of the goods, when he brought to him the pre-arrest bail order, was subjected to cross- examination but the respondent said that he did not know when this order was produced before him and when the petitioner appeared before him. When he was asked to give a categorical reply he said that it was a matter of record which will show that when the petitioner came to him in December. He was further asked when did he come to know that the permits were bogus he reiterated that the record will show the same. At this he was directed to consult the record and what he said after that consultation is that he came to know on 24-1-1979 that the permits were bogus. He admitted having moved the E. A. C. On 23-1-1979 for the permits; going to Para Chinar on 24-1-1979; and moving an application on 25-1-1979. The respondent was elusive and the following questions and answers would suggest of what metal he has been made :-- Q.-When you came to know for the first time that the Court has passed a release order with respect to the rice in question ?
A.-I come to know about it from Shahzad Mir, an A. S. I., who belongs to Tal, but I cannot give the exact date.
Q.-Whether it will be correct or otherwise, if I suggest it to you that you came to know about the release order in December, 1978 ?
A.-No. I did not come to know about it in December.
Q.-Did you come to know about the release order in January, 1979 ?
A.-I do not remember.
Q.-Do you know Mr. Salim Khan and the fact that he is your Illaqa Magistrate ?
A.-Yes.
Q.-Did you receive the contempt of Court notice from Mr. Muhammad Salim Khan, aforesaid ?
A.-Yes. Through his Court order, I got the notice on 25-I-1979. Again said I do not remember the exact date.
Q.-Did you give any answer to that notice ?
A.-Yes but I cannot state, after how many days I gave the reply.
9. The statement of Noor Hussain, Habib Hoor and Jamal Pir (P. Ws. 2, 3 and 4 respectively) need not be examined exhaustively for nothing turns upon that they have stated. Even if there be a case of forgery against the petitioner, that will not alter the situation for that case appears to have been registered on 25-1-1979 and order of the E. A. C., copy Annexure C, was torn much earlier on 16-12- 1978. Again the petitioner produced the original permits and those do purport to be for rice. There does not appear to be erasure or tampering. I should, however, add that the testimony of Noor Hassan and Jamal Pir, shows that the record is not being kept property by the concerned officials of the Political Agent's office and that malpractices are being encouraged. It is indeed startling that many blank permits have been signed and left with the staff. A copy of this para, with copies of the statements of P. Ws. 2 and 4 and the permit books may be sent by the Registrar to the Chief Secretary for such action he may like to take against the concerned officials.
The allegations of the petitioner do find full and ample support from the testimony of Mian Muhammad Salim and Gul Rehman and I see no reason to doubt the statement of the petitioner that he did carry an Order of the Magistrate to the S. H. O. Respondent on 16-12-1978 but he declined to return the rice and tore the paper. It does not stand to reason that a person who has obtained an order for the release of his rice, after furnishing security of rupees one lac, and is also armed with pre-arrest bail order, should not have taken the order to the S. H. O. In due course of time. The petitioner would not have gained anything by making a false case. One fails to understand what he was going to gain by delaying the return of 344 bags of rice by at least 40 days. He is a businessm an and it appears that he only moved the Court, after making all sorts of endeavours to get the rice in. Pursuance of the order of the Magistrate, dated 20-12-1978. The story given by the respondent is highly improbable and it rather supports that he was determined to retain the rice despite the order of the Court and it was in consummation of this design that he extended the scope of his investigation further after more than a month on 24-1-1979. It will be seen that this was much after that this Court became seized of the matter and the issue of a show- cause notice to him.
11. The respondent, has, no doubt, placed himself at the mercy of the Court and the Magistrate has also excused him. When the Magistrate was examined by me in connection with his visit to the Court on the last hearing it transpired that he had done this more or less under the orders of the Deputy Commissioner. This is what he stated: There was a jirga of A. C., D. C. And others and they asked me to accept the apology of the respondent. There were so many other officers including D. S. P., Hangoo and as a matter of fact the D. C. Himself was not present and he had directed A. C. To hold a jirga. The respondent begged pardon from me and I accepted his apology. I was directed by the A. A. G. S. Ibne Ali that I should give an affidavit and hand it over to him bough I told him that there was no provision for withdrawal. The affidavit is Exh. H. C. Z.
12. The conduct of the A. C. And D. C. Both has certainly compromised the position of the Magistracy and I can only wish that they had not done so. I might have issued a notice of contempt to them also but, taking into consideration that they might have acted under some mistaken notions. e. g, promotion of good relations between the Police .And Magistracy, I refrain from going to that extent.
As far as the role attributed to the Additional Advocate-General, S. Ibne Ali by the Magistrate, I am satisfied with the explanation of S. Ibne Ali verbally offered in my chamber that he had nothing to do with the jirga and that it was after receipt of a telephonic message from the D. C. That he guided the Magistrate how to submit his application and affidavit, regarding the composition in the Court.
13. Despite the apology of the respondent to the Magistrate and in this Court, I consider that it is a case in which dignity of the Magistrates, working under the High Court, should be vindicated.
Moreso when I see that the apology is too late in the day. The respondent has not only torn the orders of the Magistrate but has also tried to harass the petitioner by extending the scope of his investigation. His conduct lends weight to the argument that he has tried his best to create an impression that he can flout the orders of the Magistrate with impunity. He only handed over the rice when the Sessions Judge rejected the Police application and the only when the Assistant Commissioner passed verbal direction.
14. I, therefore, hold the respondent guilty under section 4 of the Contempt of Court Act, 1976, and sentence him to three months' S. I. And a fine of rupees one thousand or in default one month further S. I. I should, however, like to suspend the execution of the sentence for 15 days so as to enable the respondent to move the Supreme Court, if he is so advised.