' These proceedings are before me in pursuance of a notice issued by me Suo Motu directing M.D.
Hassan Qureshi, Principal, Bahawalpur Law College to show cause why he should not be proceeded against under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973, read with sections 3 and 4 of the Contempt of Court Act, 1976 (Act LXIV of 1976), for issuing notice on 1-12-1990 to students of Bahawalpur Law College wherein highly incorrect and misleading material with respect to the order of this Court dated 1-12-1990 was embodied. It was erroneously represented that the question of affiliation of college with University was adjudicated in favour of the College by High Court.
2. The necessary facts leading to these proceedings are; that M.D. Hassan Qureshi, and Mian Zafar lqbal instituted a constitution petition bearing No.1191/1990 against the Islamia University Bahawalpur, in which it was prayed that the declaration be granted to the effect that the refusal by respondent No.2 to grant provisional affiliation to Bahawalpur Law College is without jurisdiction, without any lawful authority and hence nullity in the eyes of law; that the respondents be directed to allow the students of this College to take examination for F.E.L. Scheduled to commence 16th December, 1990.
3. The petition came up for hearing on 1-12-1990 and was disposed of with the consent of both the parties. The University undertook to accept the admission form of students of Bahawalpur Law College for the examination of F.E.L. Provisionally subject to condition that the result of these candidates shall be subject to the result, of affiliation application. It was clarified in this order that the matter pertaining to prayer for affiliation of Law College with University shall be decided by Syndicate in accordance with law.
4. The petition was disposed of on 1-12-1990; on the same day the Principal of Bahawalpur Law College issued a notice to students wherein it was communicated to the students; that the constitution petition filed by the College had been accepted by the High Court and the question of affiliation of College with University was adjudicated in favour of College.
5. This notice was also posted to me. I had the opportunity of looking at it the same day.
Accordingly a notice in suo motu jurisdiction was issued. Mr. M.D. Hassan Qureshi, Principal, Bahawalpur Law College who entered appearance on 5-12-1990, submitted written unqualified apology wherein it was stated that the accused contemner was a chronic patient of Diabetes, blood pressure; that his daughter was suffering from brain tumor; that she had to leave on the fateful day for Rawalpindi for undergoing surgery; that written notice was brought to him by Mian Zafar Iqbal, the Chairman of Muslim Foundation Trust and he got his signature on it.
6. In consequence of this reply, the notice was issued to Mian Zafar Iqbal under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 read with sections 3 and 4 of the Contempt of Court Act.
7. In pursuance of this notice Mian Zafar Iqbal entered appearance. He submitted his unqualified, unconditional apology on 6-12-1990.
8. Accordingly the case was fixed for hearing on 10-12-1990, and 11-12-1990, 12-12-1990. Ch. Abdus Sattar, Advocate, was asked to assist the Court as amicus-curiae. Learned A.A.G. Appeared for the State.
9. On 10-12-1990 the case came up for hearing. Mr. Masud Ahmad Khan, Advocate, appeared on behalf of the contemners. He reiterated the position taken by both the accused in their replies. He also stated that M.D. Hassan Qureshi was an aged person. He was retired educationist and had the highest respect for this august institution and pleaded that his unconditional apology may be accepted. He further submitted that Mian Zafar Iqbal another accused had offered unconditional apology. He added that the contemners plead guilty and pray that their unqualified apology be accepted.
10. The learned A.A.-G. Submitted that the unconditional apology tendered by both the respondents may be accepted.
11. Ch. Abdus Sattar, Advocate, appeared as amicus-curiae. He contended that the jurisdiction of the superior Courts to take action for contempt of their authority should be jealously guarded but sparingly exercised. According to him the dignity of the Court is built upon foundation of public trust and confidence. It was submitted that in the light of this principle the apology tendered by the two contemners may be accepted or the cases may be leniently dealt with. He referred to the case of S.M. Yousuf v. S.K. Rahim and others (PLD 1969 SC 77), Maulana Kausar Niazi and another v.
Mahmood Azam Farooqi and 6 others (1985 SCM R 1445) and State v. Mumtaz Hussain Bazmi Advocate and 31 others 1987 P Cr. L J 452. It was submitted that in the aforenoted cases the Courts accepted unconditional apologies tendered by contemners and recalled the notice. He added that the submission of unconditional regrets was not regarded sufficient for discharging the notice in certain cases; and the contemners were punished. Reference was made to Iftikhar Ali v. Javid Dastgir Mirza and 6 others (PLD 1975 Lahore 126) and The State v. Kh. Asad (1988 PCr.LJ 1068). On the basis of these authorities it was canvassed that the acceptance of apology actually dependent upon the circumstance, the facts of the case and the conduct of the contemners.
12. I have heard the arguments of both the learned counsel at length. I have perused the unconditional apologies submitted by the contemners. It is quite clear that the offending notice contained obviously false statement with respect to the order of the Court. Neither the petition was accepted nor any adjudication was made with respect to the application for affiliation made by the College to University. It was made absolutely clear that the question of affiliation fell within the domain of Syndicate under section 34 of the Islamia University of Bahawalpur Act, 1975. It is, therefore, abundantly clear that the notice contained totally false and misleading facts. Both the contemners were present at the time of announcement of the order. I have, therefore, no doubt in my mind that offending part of the notice was a sheer abuse of the process of the Court and was calculated to take undue benefit of the order of this Court. I am, therefore, of the view that both the contemners had committed the contempt of Court.
13. Now I have to consider as to what is the effect of unqualified apology tendered on behalf of the contemners. The case in S.M. Yousuf v. S.K. Rahim and others (PLD 1969 SC 77) proceeds on distinguishable facts and is hardly applicable to the facts of the case in hand. In that case the officers of the Sea Customs, Karachi raided a large number of cloth shops in Karachi and seized large quantity of imported foreign cloth. The petitioner S.M. Yousuf challenged this action under the constitutional jurisdiction. A Full Bench of the High Court West Pakistan by a majority judgment declared that the seizure of the cloth was without lawful authority. The seized goods were handed over to the petitioners but soon after the goods were loaded on truck, the Customs officials stopped the truck and seized the entire goods by a written order under section 178 of Sea Customs Act. The petitioner moved contempt application against Customs authorities. Notice was issued to the authorities who took up the position that reseizure was made by them in exercise of their power under section 178 of the Sea Customs Act and that no Contempt of Court was intended or committed. On appeal the Supreme Court upheld the order of the High Court. It was observed that :- "As repeatedly held, the jurisdiction of the superior Courts to take action for contempt of its own authority which undoubtedly belongs to them should be jealously guarded but sparingly exercised.
The dignity of the Courts rests on far more sure foundations of public trust and confidence. These foundations become stronger by the noble and serene conduct of judicial rectitude on the part of the Judges rather than by coercive actions taken in provocation or sensitiveness for vindicating their authority. In proceedings for contempt where the conduct of a person who has apparently defied the orders of the Court leaves room for doubt with regard to his intention and a belief is possible that he has acted either mistakenly or on wrong but honest notions of his rights, the benefit of doubt should ungrudgingly be given to him."
14. In Maulana Kausar Niazi and another v. Mahmood Azam Farooqi and 6 others (1985 SCM R 1445) the notices were issued to the Chairman, Pakistan Broadcasting Corporation and the Chairman, Pakistan Television Corporation and others, in a Criminal Miscellaneous petition of Maulana Kausar Niazi with respect to publication of certain material which according to the applicants constituted the contempt of Court. The respondents submitted joint written apology. They also made the statement before the Court showing their unconditional apology. The Supreme Court accepted the apology. It will be worth to quote the operative portion of the judgment of His Lordship Mr. Justice Muhammad Haleem, C.J. (as then he was) which reads as under:- "We, therefore, accept the said unconditional apologies. It is, however, emphasised that it has been noticed by the Court with a sense of anguish that a tendency is growing to influence the course of judicial proceedings, directly or indirectly, through public utterances or through the instrumentality of powerful public media. Courts are an important organ of the State and their main function is to ameliorate the grievances in the field of law and justice. So as to let them perform their functions freely it is expected from all concerned and in particular the public functionaries to refrain from acting in any manner which might hinder the smooth administration of justice.
' With these observations we discharge the notice."
15. In Sher Muhammad v. Noor Elahi and another (1985 SCM R 1530) also the case proceeds on dissimilar facts. In this case the Court came to the conclusion that in respect of the order of the Court both the applicants and contemners were at fault. In the context of this finding, no action was taken against respondent.
16. It is a settled principle of law that unconditional apology does not provide contemners with an absolute excuse for having sent the offending notice and it does not entitle them to discharge as of right. This rule was laid down in Arif Nizami and 2 others (PLD 1971 SC 72) which is as follows:- "I have now to consider as to what is the effect of the unqualified apology tendered on behalf of the contemners. An apology does not provide the contemner with an absolute excuse for the offending publication nor does it entitle him to a discharge as of right, for, it cannot remedy the evil caused or the harm done to the administration of justice by shaking the confidence of the public in the Court or a particular Judge of the Court. It is only a mitigating circumstance and no more, but even in this respect an apology in order to dilute the gravity of the offence must evidence a real contriteness and an earnest desire to make amends or as has been said in some cases must be a "manful confession of conscious wrong doing". Let no one be under the impression that the Press enjoys any special privilege of traducing the Judges nor should there be any impression that after one has grievously slandered and scandalised a Judge of a Superior Court he can come to the Court and get away with it by merely tendering an apology. Such a tendency must be curbed in the public interest itself. If Judges are exposed to such slanderous attacks, their independence is bound to be shaken and it might well result in destroying the independence which the judges have hitherto so creditably maintained. It is the duty of the Court, therefore, to protect its Judges and to see that the confidence of the public in their administration of justice is not undermined. There can be no question, therefore, of treating the apology as a full amend for the grave harm that has been caused to the reputation, good name and honour of one of the Judges of this Court."
17. Another principle was laid down in Attorney-General for Pakistan v. Yusuf Ali Khan Barrister-at- Law (PLD 1972 SC 115) which is as follows:- "It then remains to be considered as to what is the effect of the respondent's withdrawing all the allegations made in the offending letter and the Unqualified apology tendered by him. An apology does not render the contempt committed excusable nor does it entitle the contemner to a discharge, as of right. An apology is only an extenuating circumstance in mitigation of the sentence, provided it is unqualified and is tendered with an earnest desire to make amends for the wrong done. There may; however, be cases where having regard to the circumstances thereof, an unqualified apology of a sincerely repentant contemner may by itself be taken to by a sufficient amend for which no punishment might be considered necessary or lesser punishment might be considered adequate.
' In the present case, the respondent deliberately committed a gross contempt for which his apology in writing cannot be considered to be a sufficient: amend for excusing him altogether, although he tendered the apology unconditionally and withdrew all the allegations without any reservation. Having heard the respondent personally, there is, however, reason to believe that he was ill-advised to send so offensive a letter to the President.
' In the circumstances and having regard to his unqualified apology, I am prepared to deal with the question of sentence leniently. I would, therefore, sentence him to simple imprisonment for two months and to pay a fine of Rs,1,000 or in default, to-suffer simple imprisonment for 15 days."
18. Guided by the ratio in the aforenoted cases it is clear that every case is to be decided after taking into consideration the facts and circumstances of the case; the nature of act committed by the condemners, and unconditional apology submitted by the respondents. Each case is to be decided on its facts.
19. Applying these principles to the facts of this case it is quite clear that M.D. Hassan Qureshi is an aged person and is a retired educationist. On the first day of appearance he submitted unconditional apology and expressed his remorse. His unconditional apology is accepted and the notice issued to him is hereby recalled.
20. The case of Mian Zafar lqbal proceeds on the different facts. He is the Chairman, Muslim Foundation Trust under the auspices of which the Law College has been established. He has made an application to the University for grant of an affiliation; this application has still not been decided.
He obtained the signatures of the Principal on this notice without appraising him about the contents of this notice. He was present at the time of announcement of the order.
21. In view of the aforesaid circumstances, he is found guilty of having committed contempt. He is administered admonition, and is warned not to do such acts in future.