1. ' GHULAM MUJADDID MIRZA. J.-Ch. Muhammad Amin, Salman Khaliq, Deputy Inspector-Generals of Police, Punjab and Muhammad Sharif Cheema, retired Superintendent of Police, Lahore City were convicted under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973, read with section 3 of the Contempt of Court Act, 1976, by a learned Single Judge of this Court by means of three separate judgments, dated 10-5-1978. Each of them was sentenced to six months' simple imprisonment. Salman Kbaliq was also sentenced to pay fine of Rs, 2,000 ; or in default to undergo one month's further simple imprisonment.
2. ' Three separate Intra-Court Appeals Nos. 1 of 1978, 2 of 1978 and 3 of 1978 have been filed by Ch. Muhammad Amin, Salman Khaliq and Ch. Muhammad Sharif Cheema, respectively.
3. ' Normally the appeals were to be decided by separate judgments, but since common question of law is involved and the circumstances out of which the contempt proceedings arose are the same so the three appeals are being decided by this judgment.
4. ' The facts have been discussed in detail by the learned Single Judge. Still certain relevant facts pertaining to each appeal will have to be mentioned at the cost of repetition. We first take up I.-C.
5. A. 1 of 1978 : ' A show-cause notice was issued to the appellant while dealing with Criminal Original No, 81 of 1975 (Mr. Muhammad Ifiikhar Ali Sheikh and another v. The Government of Punjab and others). The incident out of which the Criminal Original arose pertained to the year 1975. It was the month of October. Ch. Muhammad Amin, appellant, was then Superintendent of Police, Lahore Cantt. Iftikhar Ahmad Tari, a member of the Pakistan Peoples Party (hereinafter to be referred to as the P.P.P.), now defunct, was an elected member of the Provincial Assembly of Punjab. He served as a Provincial Minister. He was right hand man of Ghulam Mustafa Khar, who was once upon a time the Governor and Chief Minister of the Punjab.
6. ' Political differences arose between the then Prime Minister, late Zulfigar Ali Bhutto, and Ghulam Mustafa Khar. By-election to a Lahore constituency was to be held. Ghulam Mustafa Khar was a candidate for that. His opponent was contesting on the P. P. P. Ticket and had the backing of the then Government.
7. ' Iftikhar Ahmad Tari thought that due to his alliance with Ghulam Mustafa Khar, the Provincial Government as well as the Prime Minister were displeased with him. He apprehended trouble. He moved an application for bail (Cr. Misc. 4087/B-75) as he was being harassed and threatened to be involved in criminal cases. The bail was allowed.
8. ' Thereafter, on 6-10-1975, Criminal Miscellaneous 4280/B-75 was moved by Iftikhar Ahmad Tari and 7 other members of his family for bail before arrest. As it was a holiday, the application was presented to the then Acting Chief Justice at his residence. Interim relief was granted to the petitioneRs, ' Simultaneously, on 7-10-1975, Iftikhar Ahmad Tani filed Criminal Miscellaneous 4278/B-75 under section 498 read with section 561-A, Cr. P. C. And Article 199 of the Constitution of Islamic Republic of Pakistan. It was alleged in that application that the petitioner and his wife were involved falsely in a number of criminal cases in spite of various orders passed by the High Court. He suspected that he was likely to be arrested under the laws for preventive detention. Bail was prayed for under the substantive as well as preventive law with a further prayer that he should not be arrested without the prior permission of the Court.
9. ' It was Eid. The application was accordingly presented to the then Acting Chief Justice at his residence, but he declined to hear it. Finally, it was presented at the residence of Mr. Justice Shati- ur-Rehman, as he then was. The petitioner was granted interim relief. Notice was issued to the Advocate-General, who was directed to furnish a list of cases against Iftikhar Ahmad Tani.
10. ' On 9-10-1975, a constitutional petition (Writ Petition No, 2491 of 1975) was filed by Iftikhar Ali Sheikh and his brother Ifzal Ali Sheikh. It was alleged that in spite of bail Orders by the High Court Iftikhar Ahmad Tari had been taken into custody by Khalid Latif Cheema, Inspector, C. I. A., Lahore, Aftab Shah, S H.
0. Police Station Gulberg, Lahore, Samad Shah, S. I. Of Police Station Tibbi, Lahore and Nawaz Cheema, S. I. Police Station Ichhra, Lahore.
11. ' The constitutional petition was admitted to regular hearing. In that, the then Deputy Secretary, Home, Government of Punjab, filed an affidavit substance of which was that Iftikhar Ahmad Tani had not been arrested or detained at the instance of the Provincial Government.
12. ' While the above-mentioned constitutional petition was pending, another petition Criminal Original No, 81 of 1975, was filed against the Punjab Government, through the Home Secretary Punjab, the Inspector-General of Police, Punjab and the aforesaid four Police officials. It is not necessary to discuss in detail the facts of Criminal Original No, 81 of 1975, but that ended in the conviction of the above named four Police officials, who were sentenced to 2 months, simple imprisonment, each.
13. They filed two separate appeals, I. C. A. No, 1 of 1977 and No, 2 of 1977, which were decided on 10-8- 1977. The judgment is reported as Syed Aftab Ejaz v. The State (1).
14. ' It is while delivering judgment in Criminal Original No, 81 of 1975 that it came to the notice of the learned Judge that the appellant was responsible for directing his subordinates to arrest Iftikhar Ahmad Tari in spite of the fact that he was on bail by the High Court. It was also noticed by the learned Judge that the subordinate officials were forced by the appellant not to make disclosure of the arrest of Iftikhar Ahmad Tari. Hence notice for contempt was issued to the appellant which ended in his conviction.
15. ' I.-C. A. No, 2 of 1978: ' Notice in this case was issued to the appellant on 16-8-1977. This happened while the contempt proceedings were going on against Ch. Muhammad Amin and Ch. Muhammad Sharif Cheema. It was on the basis of the evidence in the contempt proceedings against Ch. Muhammad Amin and Ch. Muhammad Sharif Cheema that it came to the notice of the learned Judge that the appellant Salman Khaliq, who was Deputy Inspector-General of Police, Lahore Range, in 1975, was instrumental in getting iftikhar Ahmad Tari arrested in utter disregard of the order of the High Court.
16. ' It will be unnecessary to repeat the rest of the facts which are exactly the same as those mentioned under I.-C. A. No, 1 of 1978.
17. ' I.-C. A. No, 3 of 1978: ' Notice to the appellant in this appeal was issued while dealing with Criminal Original No, 81 of 1975 on the same grounds as in I.-C. A. No, 1 of 1978, referred to above. The factual position is also the same as that in I.-C. A. No, 1 of 1978.
18. ' Learned counsel for the appellant in I.-C. A. No, 1 of 1978 did not contest the appeal on merits. He at the very outset submitted that the appellant tenders unconditional apology and throws himself at the mercy of this Court. He submitted that in view of the apology, the conviction and sentence be set aside, the appeal be allowed and the appellant be discharged.
19. ' Counsel then referred to section 4 of the Contempt of Court Act and laid great stress on the word "discharge". He argued that even at the appellate stage, after having tendered unconditional apology, the appellant was entitled to be discharged, which according to the learned counsel meant that his conviction would stand set aside. The strongest argument advanced in support of this submission was that an appeal is a continuation of the original proceedings before a superior Court or tribunal and that an appellate Court can exercise all the powers of the trial Court: Therefore, the appellant is entitled to the benefit of the word "discharge". According to him, the result would be that the appellant would stand exonerated and cleared of the charge for which he had been convicted. Hence there would be no stigma against him.
20. ' While arguing the above proposition, learned counsel off-and-on referred to certain factual position as well ; but when he was reminded that he was not contesting the appeal on merits he submitted that the reference to the factual position was to strengthen the plea of unconditional apology. The sum and substance of the argument of the learned counsel was that this Court in appeal was competent to discharge the appellant by
(1) PLD 1978 Lab. 361accepting his unconditional apology which would mean that the judgment appealed against stood set aside in tow.
21. 'No other point was urged before us.
22. ' The learned counsel for the appellants in the other two appeals adopted the same arguments.
23. Even they did not argue any other point.
24. ' The Additional Advocate-General did not agree with the interpretation of word "discharge" as put forward by the learned counsel for the three petitioners, He submitted that this is open to the original as well as the appellate Court to remit the sentence of the accused, on being satisfied that the accused has purged himself of the contempt of Court.
25. ' It is necessary to examine section 4 of the Contempt of Court Act. The section is to the following effect "Whoever commits contempt of Court or abets the commission of contempt of Court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both : ' Provided that, on being satisfied that the accused, whether after defending himself or without offering any defence, has purged himself of the contempt of Court, the Court may discharge the accused or remit his sentence."
26. ' For our purpose, it is the proviso which is important. Before dealing with its interpretation, we think that certain other relevant sections of the Contempt of Court Act shall also have to be examined.
27. However, it is not necessary to trace the history of Law of Contempt.
28. ' The Act came into force on 30-11-1976. It has 12 sections. Section 2 deals with the interpretation of the word "Judge" and "Judicial proceedings." Section 3 defines what is contempt of Court, while section 4 provides punishment. Section 5 is about jurisdiction and section 6 deals with the bar to taking cognizance. Section 7 is important. It lays down the procedure for Supreme Court and High Court. The remaining sections are not relevant for the disposal of these appeals.
29. Section 7 lays down that whenever it appears to the Supreme Court or a High Court that a person has committed contempt of Court and it is necessary in the interest of effective administration of justice to proceed against him, it shall make an order in writing to that effect setting forth the substance of the charge against the accused, and, unless he is present in Court, shall require by means of an appropriate process that he appears *or be brought before it to answer the charge.
30. ' As is evident from the wording of the section referred to above, the word "shall" has been used twice. It is mandatory. Once an accused appears before the Court then the Court shall have to inform him. Of the grounds on which he is charged for the contempt of Court. Thereupon he shall be called upon to show cause why he should not be punished.
31. ' When he is called upon to show cause, it is open to the accused either to do so or to straight away tender an apology. If he tenders apology at this stage, it is subject to the discretion of the Court either to accept it or to proceed with the trial. If the apology is accepted, the show-cause notice is withdrawn/recalled.
32. In other words, to begin with a rule nisi is issued. A rule means an order made by a superior Court upon motion in some matter over which it has summary jurisdiction. A rule is either granted absolutely in the first instance, or as a rule nisi, or a rule to show cause, that is, a rule that the thing applied for be granted, unless the opposite party show sufficient reason against it, on a day assigned for that purpose. The rule is served upon the opposite party, and when it comes on for argument, the Court, having heard counsel, discharges the rule or makes it absolute. (This is known as 'Rule of Court').
33. (Mozley and Whiteleys's Law Dictionary, Ninth Edition, by John B Saunders, page 305).
34. In case an accused decides to show cause and does not tender the apology, then according to subsection (3) of section 7, the Court is to hold such inquiry and take such evidence as it deems necessary or is produced by the accused in his own defence and after hearing the accused and such other person as it deems fit shall give a decision in the case.
35. We are, therefore, unable to agree with the submission of the learned counsel that if an unconditional apology is to be accepted then the appellants are entitled to discharge even in appeal. On the other hand, we are of the view that the words "Court may discharge the accused" are confined" to the proceedings before the Court which issued notice to the contemner, Before proceeding further, we would like to examine the remaining words in the proviso, which are, "or remit his sentence". The word "remit", according to the Concise Oxford Dictionary of Current English, , 1931 Edition, page 990, means : "To pardon or retrain from exacting or inflicting or executing debt, punishment or sentence."
36. ' This word has been defined in the Standard Dictionary of the English Language, International Edition, in the following words :- "To pardon ; forgive, as a sin or crime."
37. The appellate Court, therefore, has the necessary power to remit their sentence.
38. However, the important question to be determined in these appeals is that once a contemner tenders an unconditional apology either before they Court of first instance or at the appellate stage, is the sentence to be remitted as of right or as a matter of course? The answer to that is certainly No, The word "apology" means a formal acknowledgment as of error, offence or incivility Originally a justification or defence (See Standard (H Dictionary of the English Language, International Edition).
39. According to Webster's Third New International Dictionary, "apology" means : "An acknowledgment intended as an atonement for some improper or injurious remark or act : an admission to another of a wrong or discourtesy done him accompanied by an expression of regret, A / frank regretful admission that one has been wrong or a defence involving mitigating or extenuating circumstances (An apology for the offence)."
40. Unconditional apology is a factor to be taken into consideration along-with other relevant facts, for instance, the stage at which it is tendered, the conduct of the contemner, the type of contempt committed, how serious it was whether the contemner was a public servant or a lay man. These are some of the important factors, but this list is not exhaustive. Each case shall have to be decided keeping in view the facts of that case.
41. In these appeals two of the appellants are senior Police Officers of the rank of the D. I. Gs. The third one is an S. P., who has since retired. It is, therefore, obvious that their responsibility was of a more serious type. As such, they were bound not only to respect but also to obey the orders passed by the High Court. We find that instead of doing so they were instrumental in flouting the orders, This is disgusting. Mere repentance on their part does not entitle them to go scot free. It is regrettable that the K appellants behaved in such a manner.
42. ' The Force to which they belong is one of the important pillars of the State whose duty is to maintain law and order. If the senior officers o such a Force behave in like manner then it has no useful purpose to serve. It leads to disorder. Confidence of the people is ruined. All this can be easily avoided provided the Force remains loyal to the supermacy of law. Its loyalty must not change with time and tide.
43. ' As already observed by us, neither of the counsel in any of the appeals argued any other point, except the one referred to above.
44. ' We have now to examine what concession can be given to the appellants for the apology tendered by them at this stage.
45. We find that before the learned Judge who issued notice, the three appellants tendered apology, but nevertheless also contested the charge. It is only before us that the appellants tendered unconditional apology and threw themselves at the mercy of this Court. At least, now it shows that in the heart of their hearts they realize the gravity of their blunder.
46. ' In the case of Arif Nizami and 2 others (1) who were proceeded against for the Contempt of the Supreme Court, the then Hon'ble Chief Justice of Pakistan, now late Mr. Justice Hamoodur Rehman, made the following observations : "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. In the present case, the circumstances, even taking the most charitable view, are such that the inference is irresistable that there was lack of care and negligence on the part of the contemnor's, It is difficult to pass it over without some penalty. This Court has no desire to be vindictive but it considers it essential to vindicate the honour of one of its Judges and make it clear that publications such as these, which constitute a grave contempt of Court, should not be allowed to be published with immunity. I, therefore, propose that the contemners should he convicted for contempt of this Court but their unconditional apology should be accepted as a mitigating circumstance. The fact that they have thrown themselves at the mercy of the Court without attempting to raise any kind of defence whatsoever should also, in my opinion, be taken into account, as this indicates
(1) PLD 1971 SC 72 that they are genuinely repentant and realize the gravity of their mistake."
47. In these appeals there is another circumstance to be considered along-with the apology, that is, delay in disposal of the appeals. The appellants were convicted on 10-5-1978. The learned Judge suspended the operation of the sentence. The appeals were admitted to hearing on 10-6-1978, M 21-6-1978 and 25-6-1978, respectively. The appellants were formally enlarged on bail on the said dates. Since then they are on bail. It has taken seven years to dispose of the appeals. It would be useless to comment whose fault it was for such a long delay. But the fact remains that since May, 1978 'Sword of Damocles' has been hanging over their heads.
48. Unconditional apology and inordinate delay in disposal of the appeals are mitigating circumstances in favour of the appellants. We are, therefore, of the view that at this stage it is not in the interest of justice to send the appellants to jail. On the other hand, sentence of fine will meet the ends of justice.
49. Consequently, while upholding the conviction, we remit the sentence of imprisonment and order that each one of the appellants shall pay a fine of Rs, 5,000 (five thousand) ; or in default undergo one month's simple o imprisonment. The amount of fine shall be paid within two weeks whereupon the bail bonds shall stand discharged. All the three appeals are decided accordingly. .