' This judgment will dispose of contempt proceedings initiated suo motu by a learned Single Judge of this Court against Sh. Abdul Aziz, contemner. On 11-12-1984.
2. The charge framed against Sh. Abdul Aziz, contemner, is that he approached Mr. Abdul Wahab M.I.C. Twice in respect of a case F.I.R. No,32 of 1977, dated 28-1-1977 under section 452/324/506, P.P.C. Which was pending before him and sought favour for the accused, Alla-ud-Din and others, and when during proceedings in Court on 8-8-1984 the said Magistrate passed an order for sending Babar Javed, accused, to judicial lock-up, Alla-ud-Din, accused, in open Court, told the Magistrate that it was the case in which the contemner had approached him and hence Babar Javed, accused, should not be sent to judicial lock-up, whereupon the Magistrate initiated proceedings under section 476, Cr.P.C. Read with section 228, P.P.C. Against Alla-ud-Din, accused, and during those proceedings the contemner entered the Court Room and took seat, near the Magistrate, whereafter the Magistrate went into another room where the contemner told the Magistrate that the accused was closely related to his brother and the proceedings should be dropped and the accused should be released on bail, but the Magistrate expressed his inability to accommodate the contemner, whereupon the contemner held out a threat to the Magistrate and went away. By, having approached the Magistrate in the said manner, the contemner was prima facie guilty of contempt of Court.
3. Before I take up the main case, it is necessary to refer to one of the submissions made on behalf of the contemner, namely, that Mr. Abdul Wahab Khan, M.I.C. Was inimically disposed towards him due to certain unfortunate incidents arising out of his contemplated transfer out from WAPDA. The statement of the contemner recorded in this connection may be reproduced: - re the learned Magistrate was personally annoyed with me as I am the Section Officer Incharge of the section dealing with the cases of postings and transfers and other establishment matters of Exh.P.C.S. Officers/Magistrates. The learned Magistrate was not happy with me as he had the impression that I was responsible for taking him out in transfer from WAPDA. The learned Magistrate was posted as a Special Magistrate in WAPDA on 4-2-1981, vide orders of the Government (Annexure A) which I have already filed with the written statement.
' The learned Magistrate (Mr. Abdul Wahab Khan) was sent on deputation to WAPDA, vide order of the Government, dated 24-3-1982 contained in Annexure A/1 and it was stipulated that the period of deputation shall not exceed three years. On the completion of this period of three years, the WAPDA authorities wrote a letter to the Government on 4-2-1984 that the deputation period of Mr. Abdul Wahab Khan Magistrate had expired and that he should be repatriated and given a fresh posting out of WAPDA. This letter was filed by me as Annexure 'B' with the written statement. In consequence of this letter, the case of the learned Magistrate was examined and the Government posted him out of WAPDA on 12-2-1984, vide order as contained in Annexur 'C'. The order of transfer in respect of the learned Magistrat was further amended by the Government on 13-2-1984 as is evident from Annexure 'D'. However, the transfer order of the learned Magistrate was finally amended on 15-2-1984, when h was posted as Special Magistrate L.D.A., Lahore, and in hi place Mr. Nasrullah Khan, Magistrate 1st Class, Lahore, wa transferred and posted as Special Magistrate WAPDA. In consequence of this letter, Mr. Nasrullah Khan Magistrate joined WAPDA as Special Magistrate on 16-2-1984 and when he reached the Court room, the learned Magistrate Mr. Abdul Wahab Khan refused to hand over the charge to him. Mr. Nasrullah Khan Magistrate submitted an application to the Government on 18-2-1984, in which he referred to the remarks of the learned Magistrate Mr. Abdul Wahab Khan which read as under:- {{URDU TEXT}} ' This application of Mr. Nasrullah Khan Magistrate is Annexure-F. Alongwith this application Mr. Nasrullah Khan Magistrate also forwarded to Government his request in writing made to the learned Magistrate Mr. Abdul Wahab Khan,, to hand over the charge to him and also the endorsement of the learned Magistrate Abdul Wahab Khan in this respect (Annexure-F/1).
According to this endorsement, he wanted to remain in WAPDA for another six months and would not hand over his charge unless his request for extension of deputation period in WAPDA was decided.
' The Government had already decided not to extend the deputation period of the learned Magistrate Mr. Abdul Wahab Khan earlier then his writing sent by Mr. Nasrullah Khan Magistrate to the Government. In view of this, the case of the learned Magistrate Mr. Abdul Wahab Khan and Mr. Nasrullah Khan regarding the row which had developed between them in handing taking over charge was examined by the Government and warning was communicated to both the learned Magistrates.
' The Government finally issued an order on 28-2-1984 to the General Manager WAPDA and directed them to immediately relieve Mr. Abdul Wahab Khan the learned Magistrate (Annexure-G).
A copy of this order was also forwarded to the learned Magistrate on 28-2-1984 to hand over the charge of his post immediately and report to the. Government, but the learned Magistrate Mr. Abdul Wahab Khan, despite the express order of the Government, did not leave the charge earlier than 11-3-1984. He however, submitted his arrival report to the Government vide his'application as Annexure-H and submitted to the Government that the Director General L.D.A. Had refused to accept him or see him and requested the Government to post him back to WAPDA or to have his transfer order implemented in L.D.A. The Government finally issued an order, dated 2-4-1984 posting him as E.A.C. Lahore (Annexure-I). The learned Magistrate came to my office a number of times and complained to me that I was inimically disposed towards him and I opposed the extension of his deputation in WAPDA as I was alleged to be interested in posting Mr. Nasrullah Khan Magistrate in WAPDA as Special Magistrate. I told him that I was absolutely not opposed to him or inimically disposed towards him. It was the order of the Government that I had issued and that he should not be unhappy with me, but even then the learned Magistrate Mr. Abdul Wahab Khan made accusation against me to a number of his colleagues, who told me that the learned Magistrate Mr. Abdul Wahab Khan was most unhappy with me and threatened to take direction against me. The learned Magistrate was also unhappy as he thought that the warning was communicated by the Government because I had suggested to the Government that disciplinary action should be taken against him, which was not correct. There were some other letter against the learned Magistrate on his transfer file and from time to time the learned Magistrate paid visits to my office and requested me to show his personal files so that he may be able to prepare his brief to avoid disciplinary action being taken against him. As a Government servant and Incharge of the files, I could not show him those files and the learned Magistrate Mr. Abdul Wahab Khan was unhappy with me on that score also."
3. It is obvious from the Government's order Exh.D.1 that Mr. Abdul Wahab Khan M.I.C. P.W.1 was posted as Magistrate WAPDA for hree years on deputation which expired on 4-2-1983, when General anager WAPDA wrote to the said Magistrate vide his letter Exh.D.3 hat he was repatriated back to SGA&ID. The Government thereafter de its order Exh.D.4 dated 12-2-1984 placed his services at the Disposal of the Commissioner, Rawalpindi Division, for posting as E.A.C. n his Division. On 13- 2-1984 the Government by order Exh.D.5, 13-2-1984 posted Mr. Abdul Wahab Khan M.I.C. As Special Magistrate L.D.A. And by order Exh.D.6.; dated 15-2-1984 posted Mr. Nasrullah han as E.A.C., Lahore as Special Magistrate WAPDA. On 16-2-1984 he said Mr. Nasruallah Khan took over as Special Magistrate WAPDA, out from letters Exhs.D.6, D.7. And D.B. It appears that some quarrel ook place between Mr. Nasrullah Khan E.A.C. And Mr. Abdul Wahab han M.I.C. P.W.1 over the taking over, resulting in objectionable emarks passed by them against each other, which came to the attention the Government through Sh. Abdul Aziz, contemner, he being the ection Officer concerned. On 28- 2-1984 Government by order Exh.D.9., sated-28-2-1984 requested the General Manager (Distt.)
WAPDA to relieve r. Abdul Wahab Khan M.I.C. P.W.1 of his duties, as he had not en granted any extension. He thereupon relinquished charge and ide letter Exh.10, dated 14-3-1984 submitted his arrival report to .G.A. & L.D., with the prayer that he be either reposted back to APDA or to L.D.A. It is the case of Sh. Abdul Aziz contemner that r. Abdul Wahab Khan M.I.C. P.W.1 came to his office a number of Imes and complained to him that he was inimically disposed towards him and had opposed his extension on deputation in WAPDA, as he was interested in posting Nasarullah Khan in WAPDA and that Mr. Abdul Wahab Khan, M.I.C. P.W.1 had also made accusations against him to a.
Number of his colleagues, who had informed him -about it. Muhammad Munawwar Tabassam Under Secretary SGA & ID D.W.3 confirmed that on 8-3-1984 at about 11-00/11-30 a.m. He came out of his office on hearing commotion in the adjacent room and saw Mr. Abdul Wahab Khan M.I.C.
Coming out of the room of the contemner in a grumbling mood and remarking "what type of ofacer is he" in anger, Mr. Khizar Hayat Assistant SGA & ID D.W.4. Also confirmed that on 14-3-1984 at about 11-00/11-30 a.m. Mr. Abdul Wahab Khan, M.I.C. Came to his Branch and told Sh. Abdul Aziz contemner that he had humiliated him by posting him at different Stations after his return from deputation. He also stated that the Magistrate accused the contemner for being responsible for his posting at different places and had told the contemner in his presence that he humiliated him by posting him at different places. He also mentioned that Mr. Muhammad Munawwar Tabassam D.W.3 had also come into the room and heard the same conversation. It is menationed on behalf of the contemner that the date 8-3-1984 referred to by Mr. Muhammad Munawwar Tabassam D.W.3 was actually 14-3-1984, as after the recording of his evidence the said witness had pointed out to this Court the mistake in the recording of this date. It is true that Mr. Muhammad Munawwar Tabassam D.W.3 did. Point out the mistake at the end, but since, according to my recollection, he had mentioned the date 8-3-1984, earlier, I did not permit the correction. However, I feel that Mr. Muhammad Munawwar Tabassam D.W.3 did make a mistake and he very likely meant the date 14- 3-1984, but by mistake mentioned 8-3-1984. From the totality of this evidence it is clear that Mr. Abdul Wahab Khan, M.I.C. P.W.1 did have some differences with the contemner during the period February/March, 1984, during which he expressed himself rather rashly and the contemner's assertion that the said Magistrate had developed animosity against him cannot be totally excluded. The evidence of Mr. Abdul Wahab Khan, M.I.C. P.W.1 would, therefore, require corroboration on material particulars.
4. I now turn to the main charge against the contemner. It is alleged that he approached Mr. Abdul Wahab, M.I.C. P.W.1 in respect of the case F.I.R. No,32 of 1977, dated 28th January, 1977 pending before him and sought favour for Alla-ud-Din and others, who were accused in that case, and that when during the proceedings in Court on 8th August, 1984, the said Magistrate passed an order for sending Babar Javed, accused, to judicial lock-up, Alla-ud-Din, accused, in open Court told the Magistrate that it was the same case in which the contemner had approached to him and hence he should not send Babar Javed, accused, to the judicial lock-up, whereupon the Magistrate initiated proceedings against Alla-ud-Din, accused, under section 228, P.P.C. And that during the course of the said proceedings the contemner visited the Magistrate and in discussion with him in another room, the contemner pleaded for relief for the accused, but being appraised by the Magistrate of his inability to accommodate him, the contemner held out a threat to the Magistrate and went away. According to Abdul Wahab Khan, M.I.C., P.W.1, he occasionaly met the contemner during his visits to the SGA & ID for his personal work or to see some friends. During one of such visits the contemner told him that a case of one of his friends Ivas pending before him and that since the case was very old and there was nothing in the case, that he should acquit the accused.
The Magistrate thereupon told the contemner That to the extent to which the law premitted him to show any concession to the accused, he would do so within the ambit of the law. The Magistrate then further states that some days before 8th August, 1984, when he was at the Civil Secretariat, the contemner met him again and referred to the same matter and he informed him that the prosecution evidence had as yet not been completed. The contemner in his statement recorded on 23rd January, 1985 denies having approadhed the Magistrate for any such favour to the accused in any case, much less that of Alla-ud-Din, accused, who was not known to him and, for whom he held' no brief. There is no corroboration to the statement of the learned Magistrate, regarding the approach made to him twice in the Secretariat. Even otherwise, nothing turns on the said statement, for the Magistrate himself has not treated the said approach as contemptuous, for he himself told the contemner that he would assist the accused to the extent to which the law permitted. The Magistrate in the cross-examination also mentioned that when the contemner talked to him about the case of Alla-ud-Din, accused, he did not mind it.
5. The next matter refers to the proceedings that took place is the Magistrate's Court on 8th August, 1984. As regards what transpired when the Magistrate cancelled the surety bond of Babar and Alla- ud-Din, accused, and what the latter accused told the Magistrate in open Court, the contemner cannot be held liable. It appears that Alla-ud-Din, A accused, stated something, which annoyed the Magistrate, for which separate proceedings were taken up against him under section 228, Cr.P.C., but this does not concern the contemner and I would not lik to touch this matter any further.
6. The main graveman of the charge, against the contemner is that on 8th August, 1984 when Mr. Abdul Wahab Khan M.I.C. P.W.1 had adjourned the case of Alla-ud-Din, accused, for some short period, in order to prepare the necessary notice to issue to Alla-ud-Din accused, in respect of the proceedings to be taken against him under section 228 P.P.C. That the contemner appeared in his Court within fifteen to thirty minutes thereafter. He came and sat on a chair opposite to the table of the Magistrate. After the Magistrate had finished the case, which he was dealing, the contemner came and sat on a chair' on his left side. The Magistrate submits that since he did not think it proper to discuss anything with the contemner in the Court room, he caught him affectionately by the shoulder and took him to his Retiring Room, which happened to be the Deputy Commissioner's Office Libre "y. Ali Muhammad Naib-Qasid P.W. Accompanied the two when they proceeded to the Retiring Room. The Magistrate gives his version of what transpired here in the following words:- "I first made the respondent sit on a chair and then I respectfully told him what had transpired in the Court and mentioned to the respondent that he should not have mentioned to Allah-ud-Din accused, that he had spoken to me about his case. The respondent, thereupon, became annoyed and told me that the accused should be let off. I then told him that he should ask the accused to file an application for bail, on which I would k give notice and take a lenient view. As regard the contempt committed, I also told him that the accused had not insulted me but also him (i.e. The respondent), by his behaviour. I also told the respondent that in proceedings relating to contempt against Alla-ud-Din, contemner, I would take a lenient view that would be available to me under the law. The respondent then told me that this all implied that the accused would have to remain in jail for the night. I did not reply to this statement. He then got annoyed. At this stage, Muhammad Ibrahim Shakir, Librarian of the D.C's library, happened to come near us. Previously he was in the adjacent room. Before the said Librarian, the respondent told me that I should let off the accused and take no action at all against them. At this stage, Ali Muhammad, my Naib-Qasid, was also present at the door of the Library. I then said that I could not let off the accused. The respondent became more annoyed and got up from the chair and then left the room. I tried to send for him, but he did not come. Therefore, I returned to my Court Room took up the case against Alla-ud-Din, accused under section 288, P.P.C. And forthwith convicted him under the power vested in me under section 476, Cr.P.C."
Ibrahim Shakir, Librarian P.W.2 and Ali Muhammad Naib-Qasid P.W.3 have been produced to corroborate the evidence of Mr. Abdul Wahab Khan M.I.C. P.W.I. As stated earlier, corroboration is necessary and I now propose to discuss how far the two witnesses corroborate the Magistrate.
7. The Magistrate mentions in his evidence about certain facts which took place not within the hearing of the Librarian and his Naib-Qasid and that which took place within their hearing.
8. I now take up the case with regard to the former category. The Magistrate refers to the fact that he first took the contemner to the Library Room, accompanied by the Naib-Qasid, where he made the contemner sit on a chair and then respectfully told him what had transpired in the Court and mentioned to him that he should not have told Alla-ud-Din, accused, that he had spoken to him about the case. He then submits that the contemner thereupon became annoyed and told him that the accused should be let off, whereupon he told the contemner that he should ask the accused to file an application for bail, on which he would give a notice and take a lenient view. As regards the contempt committed by Alla-ud-Din, the Magistrate told the contemner that the accused had not only insulted him but also the contemner by his behaviour and that in the contempt proceedings against Alla-ud-Din he would take a lenient view that would be available to him under the law. He then submits that the contemner then told him that this all implied that the accused would have to remain in jail for the night, to which he did not reply, when the contemner got annoyed. With regard to the fact that Ali Muhammad, Naib-Qasid, accompanied the two to the Library Room, there is no reference of this in the Magistrate's judgment Exh, D-11. With regard to the fact that he made the contemner sit down on a chair, when he respectfully told him what had transpired in the Court on 8-8-1984, in his judgment Exh.D-11 there is no mention of the fact that he made the contemner sit down on a chair or told the contemner of what had transpired. In his examination-in-chief, the Magistrate refers to the fact that he had asked the contemner to request Alla-ud-Din to file an application for bail, on which he would take a lenient view. This is not mentioned by the Magistrate in his judgment Exh.D-11. In his examination-in-chief the Magistrate says that when the contemner was told that Alla-ud-Din, accused, would have to file a bail petition, the contemner told him that this all implied that Alla-ud-Din, accused, would have to remain in jail for the night, to which he did not reply. This in not mentioned; by the Magistrate in his judgment Exh.D-11. It appears that these portions o the statement of the Magistrate appear to be embelishments, as no reference of the same appear in his judgment Exh.D-11. In these circumstances, the Magistrate's uncorroborated statement that contemner told him to let off the accused, cannot be accepted with any degree o safety.
9. I now come to that portion of the story which took place when the Librarian and the Naib-Qasid happened to become witnesses. The Magistrate mentions that when the contemner told him that asking Alla-ud-Din to file a bail petition implied that he would have to remain in jail for the night, to which he did not reply the contemner got annoyed, whereupon Muhammad Ibrahim Shakir, Librarian P.W.2 happened to come near them and -before the said Librarian the contemner told that he should let off the accused and take no action at all against them. At this stage the Magistrate mentions that Ali Muhammad, his Naib-Qasid, was also present near the door or the Library, when he, told, the contemner that he could not let, off the accused, whereupon the contemner became more annoyed and got up from the chair and then left the room. In the judgment Exh.D-11 of the Magistrate, there is no reference to the Librarian or Naib-Qasid coming near to them or being within hearing reach of their conversation. Whilst the Magistrate states that the contemner became more annoyed and got up from the chair and left the room, the Librarian submits that the conteginer got up in anger and whilst leaving the room remarked " {{URDU TEXT}}", whereas the Naib-Qasid refers to the fact that when the contemner got up, he said in a loud tone to the Magistrate that Alla-ud-Din and others, accused, should be let off today and whilst leaving the room said "{{URDU TEXT}}In the first instance I am doubtful about the Librarian and the Naib- Qasid being present within hearing reach, so as to be able to hear what transpired. There is no reference of their presence in the Library Room in judgment Exh.D-11 of the Magistrate. Their statements were also not recorded -by-tie Magistrate on 8-8-1984. But even assuming, for a matter of argument, that they- were present, I doubt whether they were present within, hearing' reach. The Magistrate had himself taken the contemner to the Library Room for a confident tete-a- tete and he would not have communicated with the contemner within reach of eaves droppers.
The Naib-Qasid clearly admits, in cross-examination that he stood outside the entrance door and whatever he heard, he heard from that place, which carries no conviction, as he could not have heard all what transpired in the Library Room fromc outside. But taking the best case for the Magistrate, the statement 0 the Librarian and the Naib-Qasid with regard to express words used by the contemner cannot be accepted, as the Magistrate himself has not referred to any such words, other than the fact that the contemner became more annoyed, got up from the chair and then left the room. The fact that the Librarian and Naib-Qasid have attempted to put words in the mouth of the contemner, which he did not utter, thei statements that the contemner asked the Magistrate to let off the accused and take no action against them, also cannot be accepted with any degree of safety; and the Magistrate's own statement in this regard, without corroboration, I am not prepared to accept.
10. The upshot of the above discussion is that the case against the contemner does not stand proved to the hilt, without any shadow of 'doubt. The statement of the Magistrate cannot be accepted without proper corroboration. Corroborative evidence in this case cannot b accepted with any degree of safety. The Naib-Qasid and the Librarian appear to be persons under the influence of the Magistrate. The Annua Confidential Report of the Naib-Qasid at least, if not of the Librarian, is written by the Magistrate. Their statements were not recorded b the Magistrate on 8-8- 1984. There_is not reference, of their presence in his judgment Exh.D-11.
11. The contemner has led evidence in defence to show that he did not visit the Court of Magistrate at all that day, as he was busy in his office the whole day trying to contact on the Phone Rana Waris Ali, Magistrate, at Bahawalpur to inform him of his posting at Lahore, where he was supposed to take charge that very day. It is the defence case that Syed Muhammad Hamid D.W.2, who was the Deputy Secretary, S.G.A. And I.D., and Sh. Abdul Aziz, the present contemner who was then Section Officer in the SGA and I.D, remained busy from morning right through 5.00 p.m., on 8-8- 1984 in their attempt to contact Ran Waris Ali, Magistrate, to inform him of his posting at Lahore and that though they were able to contact E.A.C. (Rev.) at Bahawalpur, the were not able to contact the said Magistrate or his superiors for purpose of communication of the message. Since I have disposed of the case on the prosecution evidence alone, I need not discuss the defence.
12. The 'conduct of the Magistrate himself in this case has bee somewhat peculiar. He appears to have induced the contemner to believe he would assist in the case, within the ambit of the law. He also asked the contemner to inform Alla-ud-Din, accused, to file a petition for bail, on which he would take a lenient view. Such behaviour on the part of a Magistrate would indeed give anybody the expectation that he could freely ask for greater concessions. If this position be accepted, the behaviour of the Magistrate would come within the principle o "conduct conducting". For this reason also, I do not consider this t be a case where I can record conviction with any degree of safety.
13. For the foregoing reasons, I would refrain from recording any verdict that the contemner is guilty of contempt of Court. The notice issued to the contemner is recalled. Contempt notice recalled.