Raja Saeed Akram Khan, J.-- In a case reported as Chaudhary Latif Akbar v. Azad Government & 10 others [2017 SCR 305], this Court declared the notification dated 21.10.2016, inoperative and ineffective through which the Government declined the implementation of the Education Policy, 2015. On 21.07.2017, an application titled Ch.Laif Akbar and others v. Raja Muhammad Farooq Haider Khan and others (criminal original No.11 of 2017), was moved for initiation of contempt of Court proceedings against the respondents, therein.
During the course of proceedings in the referred case, the Director Education Colleges of the time, contemnor No.2, herein, issued a letter on 26.07.2017, addressed to the Divisional Directors Education for implementation of the Government notification dated 21.10.2016, which had already been declared inoperative and ineffective by this Court vide judgment dated 21.02.2017, in Ch. Latif Akbar's case (supra). On this, the Court summoned the Director Education Colleges of the time who submitted that the said letter was issued by her on the direction of Secretary Higher Education, Contemnor No.1, herein, whereupon, the instant robkar was maintained and contempt proceedings were initiated against the contemnor-respondents, herein and evidence for and against was led by the parties.
2. Mr. Raza Ali Khan, the learned Advocate-General while appearing as prosecutor submitted that the contemnors intentionally violated the judgment of this Court. The order issued by the contemnors clearly shows that they willfully disregarded the judgment of the Court dated 21.02.2017. The contemnors tried to implement such notification which had already been declared by this Court ineffective and inoperative. Thus, it is proved that the contemnors tried to flout the judgment of the Court; therefore, they are liable to be punished for the commission of contempt of Court. He referred to and relied upon the case law reported as The State v.
Secretary, Health Punjab, Lahore and another [PLD 2002 Lahore 247],Baz Muhammad Akbar and others v.
Federation of Pakistan through Ministry of Law and Justice and others [PLD 2012 S.C. 923], The State v. Moulvi Maziruddin Ahmed [PLD 1957 Dacca 476] and Registrar of High Court v. Editor of the English Daily 'The News' and others [1992 P.Cr.L.J. 1893].
3. On the other hand, Raja Amjad Ali Khan, Advocate, while appearing on behalf of contemnor-respondent No.1, submitted that the contemnor-respondent No.1, can never imagine of any omission or commission that may amount to contempt of the Court. He submitted that the letter dated 26.07.2017, was issued by contemnor- respondent No.2, and the same was not in the knowledge of respondent No.1, when he came to know about the same, he cancelled the same vide order dated 30.08.2017. The contemnor-respondent No.1, also proved this fact by producing the evidence; he also tendered an unconditional apology which may kindly be accepted and the contempt proceedings may kindly be dropped to the extent of contemnor-respondent No.1. He relied upon the case law reported as Criminal Miscellaneous Application No.296 of 2008 in/and Criminal Original Petition No.38 of 2008 [2009 SCMR 780], Mujahid Hussain Naqvi v. Ehtesab Bureau and 6 others [2003 SCR 399] and Muhammad Ibrahim v. Muhammad Afsar Khan [2003 SCR 406].
4. Syed Nishat Kazmi, Advocate, the learned counsel for contemnor-respondent No.2, submitted that the judgment of this Court was not in the knowledge of the contemnor-respondent No.2. This version of the respondent is supported by an affidavit. The contemnor-respondent No.2, issued the letter dated 26.06.2017, on the verbal instructions of contemnor-respondent No.1. The act of the contemnor-respondent No.2, was not willful rather the same has been committed due to non-awareness of the actual position. Even otherwise, the contemnor-respondent No.2, is not justified her act rather she tendered the unconditional apology which may kind be accepted and she may be discharged of the charge.
5. Before diving deep in the record of the case, we would like to observe here that the object to proceed for contempt is to maintain the confidence of the general public and the litigants in the Courts and to keep the course of justice free and to ensure the administration of law and justice. The contempt proceedings are not initiated just to protect the Judges but to vindicate the honour of the Court, so that the confidence which the public retains in superior Courts in the State is not weakened. In the case in hand, this Court while delivering the judgment in the case reported as Ch.Latif Akbar & 261 others v. Azad Government & 10 others [2017 SCR 305], declared the notification dated 21.10.2016, ineffective and inoperative and concluded the matter in the following manners:- "17. In the light of above stated background and reasons we have no hesitation in holding that without completion of the mandate of the constituted Committee the decision taken in the Cabinet meeting held on 06.10.2016 and the notification issued on 21.10.2016 is not a proper course. As the Government has opted for laying the matter before the Assembly, therefore, the whole issue has to be attended and decided by the Assembly, in this background, the notification dated 21.10.2016 is declared ineffective and inoperative."
It appears from the concluding paragraph of the judgment (supra) that the Government before taking any further step regarding the Education Policy, 2015 had to lay the matter before the Legislative Assembly. However, without going into the details, we deem it proper to focus on the controversy involved in the present matter.
During pendency of contempt proceedings in the case titled Ch.Latif Akbar and others v. Raja Muhammad Farooq Haider and others amazingly, on 26.07.2017, the Director Education Colleges issued the following letter:- {{URDU TEXT}} From the juxtapose perusal of the concluding paragraph of the judgment of this Court and the letter referred to hereinabove, it is crystal clear that the letter was issued for implementation of the notification which had already been declared ineffective and inoperative by this Court. In this way, sheer violation of the judgment of this Court has been made. Respondent-contemnor No.2, who issued the letter (supra), was summoned who took the stance that she was not aware of the judgment of this Court and issued the letter on the verbal instructions of contemnor-respondent No.1. She also tendered unconditional apology and did not contest the case and placed herself on the mercy of the Court, whereas, contemnor-respondent No.1 contested the case and took the stance that he had no knowledge about the issuance of the letter by the Director Education, when he came to know he cancelled the same vide notification dated 30.08.2017. Thus, he has not committed any contempt of the Court.
The contemnor-respondent No.1, placed on record a copy of order dated 30.08.2017, through which he cancelled the letter dated 26.07.2017, issued in violation of the Court order. He also recorded his own statement and produced two witnesses in support of his version.
6. To reach the correct conclusion, we perused the record minutely. It is very much clear that contemnor- respondent No.2, was serving as a subordinate to contemnor-respondent No.1, and it does not appeal to a prudent mind that contemnor-respondent No.2, without the instructions of the authority, in her personal capacity, could issue such order/letter. Moreover, by defending the letter, issued in violation of the judgment of this Court, the contemnor-respondent No.1, further strengthen the stance taken by contemnor-respondent No.2 that the letter was issued on his instructions. From the very first day the contemnor-respondent No.2, took the stance that she issued the letter on the instructions of contemnor-respondent No.1 and remained consistent on the same throughout the proceedings. However, as under law, she could refuse to comply with the illegal orders, therefore, she cannot be absolved from the liability. This Court in a case reported as Mst.Sabia Aziz v. Director Techenical Education and 5 others [2011 SCR 545], while dealing with the proposition has held that the Government servants should comply only those orders/directions of superiors which are legal and the compliance of an illegal order cannot be justified. The conduct of contemnor-respondent No.1, during the proceedings was undesirable. At one hand, he tried to justify the issuance of letter dated 26.07.2017 and on the other hand took the stance that he was not aware of the issuance of the same. In the explanation submitted by contemnor-respondent No.1, in the Court, he justified the contemptuous act in the following terms:- "(ii) That the notification dated 21.10.2016 which was being subject matter of litigation before this Hon'ble Court was notification No.SHE/First/11006-15/2016. The Director Public Instructions issued letter No.10608-9 dated 26.07.2017 to implement the notification No.11036-47/2016 dated 21.10.2016 which was in respect of transfers of Lecturers and not related to downgrading of upgrade educational institutions under education package. The letter by Director Public Instructions Colleges was issued after the Assembly passed the budget 2017-18 which had no budget for upgraded Educational Institutions....."
While filing comments on the application titled Ch.Latif Akbar and others v. Raja Muhammad Farooq Haider and other, filed for initiation of contempt of Court proceedings, the contemnor also defended the letter, issued in violation of the judgment of this Court. The relevant portion of the comments reads as under:- {{URDU TEXT}} He further took the stance in ground 3 of the comments that:- {{URDU TEXT}} After going through the hereinabove reproduction, it appears that the contemnor not only defended the issuance of letter but also tried to malign the Court while deposing that despite giving plausible explanation the Court directed for the restoration of the institutions.
7. The contemnor-respondent No.1, while recording his statement deposed that he did not know about the issuance of notification dated 26.07.2017, however, on 30.08.2017 Secretary Schools brought this fact into his notice. The relevant portion of his statement reads as under:- {{URDU TEXT}} The witness produced by the contemnor-respondent No.1, namely, Qazi Muhammad Ibrahim, Director Education, while recording his statement stated that one week prior to the filing of application for initiation of contempt of Court proceedings a meeting was convened in the office of the contemnor-respondent No.1, in which the contemnor-respondent No.1 asked the contemnor-respondent No.2, that why she issued the notification dated 26.07.2017. Surprisingly, the contempt application was filed on 21.07.2017, when the notification (supra) was not even issued, whereas, the instant contempt proceedings have been initiated vide Court order dated 18.09.2017. In this way, the witness does not support the version of the contemnor- respondent No.1 that he came to know about the issuance of notification dated 26.07.2017 on 30.08.2017. The relevant portion of the statement of the witness reads as under:- {{URDU TEXT}} The other witness produced by the contemnor-respondent No.1, namely, Khawaja Sajjad Ahmed, Legal Officer, also narrated the same story. After going through the statements, it appears that the contemnor-respondent No.1, telling lie throughout in the Court and also manoeuvred false evidence just to save his skin and to deceive the Court. The conduct of the contemnor-respondent No.1, clearly shows that he played the main role in the episode and tried to undermine the authority of the Court. It may also be observed here that the contemnor- respondent No.1, is the Secretary of the department and under the provisions of rule 8 of the Rules of Business, 1985, being head of the department he is responsible for all the acts done by his department. Thus, in this way too, the contemnor-respondent No.1 cannot be exonerated of his responsibility.
8. There is yet another aspect of the matter which resulted into loss of Court's sympathy towards the contemnor-respondent No.1. As during the contempt proceedings, we have already observed in the open Court that the contemnor-respondent No.1, off-the-record attempted to intercede the Court proceedings through his friends who used to make telephone calls to the bench seized with the matter. If he was innocent, he should have proved himself by bringing on record sufficient proof but he has chosen alternate illegal means to get favorable orders. His act of intercession not only disentitles him from any leniency by the Court, but also sufficient to punish him for the commission of contempt of Court as he attempted to shake the confidence of the general public and tried to give the impression that the Courts are manageable. The contemnor produced his subordinates as witness by using his authority mere for covering the fault. The contemnor at one hand defended the contemptuous act and on the other hand also tendered apology, such like apology cannot be termed as unconditional apology rather the same is admission. It may be observed here that under law the apology tendered half-heartedly just in routine cannot be accepted rather the apology must be unconditional, satisfactorily represent, sincere and genuine remorse which may show that the contemnor has not attempted to justify his conduct, whereas, in the matter in hand, as has been discussed earlier that the contemnor tried to justify his act, therefore, such apology cannot be termed as unconditional, sincere and genuine apology.
Reference may be made to a case reported as Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others [2000 SCMR 1969], wherein, it has been held that:- "20. We have also considered the question of tendering "unqualified" apologies on behalf of respondents Nos.2 to 8 at this stage. It is settled law that tendering of unqualified apology amount to admission of the charge. We find that the respondents were not sincere in tendering apologies in that the learned counsel reiterated that the unqualified apologies tendered by their clients are in the alternative and without prejudice to the submissions made by them on merits. We are afraid such apologies do not qualify for acceptance in the light of the well- settled principles laid down by the Superior Courts in this behalf i.e. (a) the apology must be offered at the earliest stage of the contempt proceedings and may not be postponed till fag-end of the proceedings; (b) the apology must be unconditional, unreserved and unqualified; (c) the apology should not only appear but must also satisfactorily represent sincere and genuine remorse and should not be half-hearted or mere formality; and
(d) the contemnor should not endeavour to justify his conduct. Here, the respondents had specifically disputed the charges levelled against them, had unequivocally pleaded their innocence and had endeavoured to justify their conduct even at the fag-end of the proceedings here. Therefore, their apologies are not accepted."
It may also be observed here that in the contempt matters the onus of proof is always on the contemnor, who has to prove his innocence, whereas, in the present case the contemnors failed to prove their innocence. While dealing with the proposition in the case law (supra) it has been held that:- "12. .... It is well settled that a contempt case in the matter of placing the onus is totally different from a case under the criminal law, which presumes innocence of the accused and places the burden on the prosecution to establish the charge against him beyond any reasonable doubt. Whereas, in a contempt case onus is entirely upon the person charged to prove his innocence."
9. After making the scrutiny of the record, the contemnors have been found guilty of the contempt of Court. The contemnor-respondent No.1, wilfully tried to play with the Court while not placing the true facts of the case before the Court, whereas, the case of the other contemnor although stands slightly on different footing as she has taken the stance that she issued the letter on the verbal instructions of the contemnor-respondent No.1 and remained consistent on this statement throughout the proceedings; but she also cannot be discharged from the liability as she cannot be supposed to obey the illegal orders of the high-ups'. Here we deem it proper to mention that the main object of awarding punishment to the persons who violate the Court orders is; (i) that the contemnor should be sentenced for violating law; and (ii) a deterrence in the like-minded person who without caring for the consequences do wrongs and violate law.
10. Keeping in mind the object of punishment and the facts and circumstances of the present case while taking the lenient view contemnor-respondent No.2, is punished with imprisonment till rising of the Court, whereas, the contemnor-respondent No.1, who played major role in violating the judgment of this Court and also defended the contemptuous act, is punished with the simple imprisonment of 2 weeks. The police is directed to take him into custody and lodged in the jail.
Before parting with the judgment while taking the sympathetic view it is held that the sentence awarded to the contemnors shall not affect their service carrier. We also pay our gratitude to the learned Advocate-General who rendered able assistance in the matter as a prosecutor.