These contempt proceedings against contemners Ziauddin and his Advocate Dr. Hameed Ahmed Ayaz have been initiated on a reference made by Civil Judge Mr. Saghir Ahmed Naqvi, which was admitted to regular hearing by my learned brother Mr. Justice Nasir Aslam Zahid on 7-10-1990 and notice was issued to the contemners to appear personally before this Court.
2. Brief facts of the case are that contemner Ziauddin had filed Suit No-694 of 1990 in the Court of Civil Judge No.12, South, Karachi, through his Advocate contemner Dr. Hameed Ahmed Ayaz. On 23- 8-1990 Mr. Saghir Ahmed Naqvi, who was link Judge of that Court, passed an order under Order VII, Rule, 10, C.P.C. Returning the plaint for presentation to the proper Court. The plaint was taken back but was filed again in the same Court after adding, inter alia, a contemptuous para which reads as under:-- "The learned Mr. Sagheer Ahmed Naqvi (XIVth Civil Judge, South Karachi) deliberately, wilfully, intentionally, mala fidely, corruptly and without jurisdiction passed an order in the suit, returning the plaint under Order 7, Rule 10, C.P.C., for presenting the same before the proper forum, on the ground that the suit was to be valued on the market price of the movable properties contained in the subject shop. The plaintiff is bound to exercise his right of appeal against the said order of the Link Judge and also to avail his remedies for damages against the defendants above named as well as the said Link Judge of this Honourable Court, in addition to invoking his relief under section 219, P.P.C. At the appropriate time."
3. In response to the said notice, Dr. Hameed Ahmed Ayaz appeared before the Court on 28-10- 1990, while Ziauddin appeared on 10-11-1990. Instead of tendering an apology or filing any reply, they resorted to dilatory tactics and filed Miscellaneous Application No.1854 of 1990. In this miscellaneous application the contemners contended that the contempt notices, which someone in the Court office drafted, prepared, sealed and caused to be served purportingly contempt notices upon the respondents' conveying that Mr. Justice Nasir Aslam Zahid has taken exception to the language used in paragraph 8 of the plaint which was reproduced in the said application for the sake of conveniance, does not attract the provisions of Contempt of Court Act. Furthermore its cognizance was barred under section 6 of the Contempt of Court Act as (i) the contents of para. 8 of the plaint were true and correct, and (ii) the alleged contempt was an offence punishable under P.P.C. It was, therefore, prayed that the contempt proceedings should be dropped. In support reliance was placed in the case of Ikramullah v. The State 1969 P Cr. L J 920 and in the case of NA.
Gazdar v. Hassan Akbar and others 1987 MLD 2169.
4. Contemner Dr. Hameed Ahmed Ayaz, Advocate took up an arrogant attitude and insisted that his miscellaneous application be admitted to regular hearing and notice be issued thereof. Since the application was based on illegal and flimsy grounds and was made with the purpose of delaying, defeating and obstructing the proceedings and publicising the contempt, therefore, it was decided not to admit the same and not to issue any notice thereof. The contemners were asked to file reply to the contempt notices issued to them on which they requested for an adjournment to file written reply. The case was, therefore, fixed on 17-2-1991, on which date the contemner Ziauddin alone appeared, while contemner Dr. Hameed Ahmed Ayaz did not appear and sent an application for excusing his personal appearance on the ground that his son was kidnapped. Absence of contemner Dr. Hameed Ahmed Ayaz was excused for that date only and it was ordered that he should appear in person on the next date of hearing. On 3-3-1991 both the contemners appeared in person and filed written reply to the contempt notice. In the written reply it was stated that the proceedings were without jurisdiction, unlawful, coram non judice, null and void and that Miscellaneous Application No.1854 of 1990 be treated as part of the reply. The contemners reproduced para. 8 of the plaint and reiterated that it was not contemptuous. It was, therefore, requested that the above miscellaneous application be allowed, notices be discharged and action be taken against the Civil Judge. Contemner Dr. Hameed Ahmed Ayaz also filed an application for stay of proceedings pending final disposal of the intra-Court appeal filed by him against the order, dated 3-3-1991. Arguments of Mr. Muhammad Sharif, Advocate, who was appointed amicus curiae, were heard on 5-5-1991, so also the arguments of contemner Dr. Hameed Ahmed Ayaz. The amicus curiae expressed the view that the contemners had committed gross contempt and were not at all entitled to the protection of any provision of section 6 of the Contempt of Courts Act and therefore, Court should proceed to punish them. The Court, therefore, did not consider it proper to drop the proceedings or to stay the same and decided to proceed with the case. Accordingly a charge was framed against the contemners which reads as under:-- "I, Justice Syed Abdur Rehman, Judge, Sindh High Court, do hereby charge you;
(1) Ziauddin son of Abdul Aziz, and
(2) Dr. Hameed Ahmad Ayaz, Advocate, as follows:-- That you on 27-8-1990 presented a plaint in the Court of XIIth Civil Judge (South) Karachi, para. 8 whereof reads as under:-- ---The learned Mr. Sagheer Ahmed Naqvi (XIVth Civil Judge, South Karachi) deliberately, wilfully, intentionally, mala fidely, corruptly and without jurisdiction passed an order in the suit returning the plaint under Order 7, Rule 10, C.P.C. For presenting the same before the proper forum---.
The said words tend to bring the authority of a Court and the administration of law into disrespect and disrepute and to lower the authority of the Court and scandalize a Judge in relation to his office and thereby you have committed an offence punishable under section 4 of the Contempt of Court Act, 1976 and within my cognizance. I direct that you be tried by me for the said offence."
The contemners pleaded not guilty to the charge and claimed to be tried. Main points for determination in this case are; (1) whether the contemners have filed plaint containing the above words? And (2) whether the said words tend to bring the authority of a Court and the administration of law into disrespect and disrepute and to lower the authority of the Court and scandalize a Judge in relation to his office?
5. My findings on both these points are in the affirmative for the following reasons:-- On 12-5-1991 Abrar Hussain, Clerk of XIIth Civil Judge South, Karachi was examined, who produced the file of Suit No. Nil of 1990 filed by the contemners, containing the contemptuous para of the plaint. It contains the signatures of both the contemners. Thereafter statements of contemners were recorded under section 342, Cr.P.C. In his statement contemner Ziauddin admitted having filed the plaint containing the contemptuous para and having signed and verified the same. In reply to the question as to whether para. 8 of the plaint was in accordance with his instructions, he replied that he cannot say anything. In this regard. He did not offer to examine himself on oath, nor he wanted to lead any defence evidence. Contemner Dr. Hameed Ahmed Ayaz also admitted having filed the plaint and having signed the same. He, however, changed his stand and for the first time alleged that the plaint which he had drafted did not contain the disputed para. 8. He offered to examine himself on oath and to lead defence. On 25th June, 1991 further statement of Dr. Hameed Ahmed Ayaz was recorded wherein he was asked as to whether he has made Miscellaneous Application No.1854 of 1990 and signed it which reproduces the disputed para.8 at page 2. He admitted having done so, but explained it that para.8 was copied by him from the record of the suit supplied to him by the Court. His denial was false and mala fide on the face of it and was a brazen faced lie. His consistent stand in the Court throughout was that culpable para was true and correct and was drafted by him. In his further statement under section 342, Cr.P.C.
When he was confronted with previous application containing the culpable para., he had to admit having drafted the same, but took yet another false stand that he had copied it out from the copy of plaint supplied to him. From the above evidence it is proved beyond shadow of any doubt that the contemners had filed the plaint in abovestated suit which contained words which tend to bring the authority of a Court and the administration of law into disrespect and disrepute and to lower the authority of the Court and scandalize a Judge in relation to his office. Dr. Hameed Ahmed Ayaz was then asked to step into the witness-box to examine himself on oath, but he refused to do so.
He insisted that Court should pass order on his Miscellaneous Application No.1854 of 1990.
6. Contemner Dr. Hameed Ahmed Ayaz gave an application wherein the same legal pleas and allegations as mentioned above were repeated and a list of 13 witnesses was given which included the name of the undersigned (Syed Abdur Rahman, J.). Being of the opinion that the application to summon these witnesses including the Presiding Judge, has been made only to delay, defeat and protract the proceedings and publicise the contempt, the Court decided not to issue any summons to the so-called defence witnesses and reserved the case for pronouncement of judgment. The conduct of the petitioner throughout the contempt proceedings was reprehensible.
Instead of submitting an unconditional apology and throwing himself at the mercy of the Court, he took up an arrogant and disrespectful attitude from the very beginning. He took the plea that whatever he had written in para. 8 of the plaint was true and justified and instead of expressing sorrow for what he had done, he unwisely endeavoured to take protection behind legal provisions of section 6 of the Contempt of Court Act, 1976 which did not apply to the case. He was unscrupulous to the extent that he took a somersault and denied that para. 8 was not at all drafted by him and that it was subsequently forged and introduced therein by the Court or some one else.
However, when his own application admitting and reproducing that culpable para was brought to his notice, while recording his further statement under section 342, Cr.P.C. He became further unscrupulous. He neither signed the statement, nor did he step into the witness-box to give evidence on oath as earlier desired by him. Then he gave an application for summoning as many as 13 defence witnesses which included Clerk Abrar Hussain, who was already examined as P.W.
And to whom he had put questions through the Court, Mr. Rehmat Hussain Jafri, Judge Small Causes Court, Syed Asghar Ali Shah, Superintendent Crime Branch of this Court, Civil Judge XIth (South) Karachi, District Judge (South) Karachi, Mr. Muhamniad Sharif Advocate/Amicus Curiae, Mr. Z.H. Oureshi Advocate for the State and even the undersgined. Hence I was satisfied that the contemner did not want to bona fidely lead defence and has made this application only with a view to protract and prolong the proceedings and harass and bring into further disrepute and disrespect subordinate judiciary as well as superior Judges and had crossed all the limits of decency and morality. Hence I dismissed his application and reserved the case for announcement of judgment, I am, therefore, satisfied that para. 8 of the plaint was drafted by contemner Dr. Hameed Ahmed Ayaz. Co-accused/contemner Ziauddin has not disassociated himself from the drafting of this para., nor has he submitted an apology. His attitude is also reprehensible.
7. Now I would advert to the legal objections raised by contemner Dr. Hameed Ahmed Ayaz. The first legal objection of contemner Dr. Hameed Ahmed Ayaz is that the allegations contained in para.8 of the plaint are true and correct and therefore, contempt proceedings cannot be taken against him. The objection of the contemner is not correct. The truth or correctness of the contemptuous statement cannot be treated as a defence in contempt proceedings. In the case of Crown v. Abdul Rahman PLD 1950 BJ 36 it was held that ---establishing truth of allegations is no defence to the charge of contempt of Court. A libellous statement which amounts to interference with the Courts of justice amounts to contempt even though the defendant is prepared to justify the libel'. Similar point had arisen in the case of State v. Majeed Nizami PLD 1980 Journal 65, where it was held that ---truth of accusation cannot be pleaded as defence in proceedings for contempt'. In the case of Sir Edward Snelson v. Judges of the High Court of West Pakistan PLD 1961 SC 237 it was held that `plea of truth of offending matter is not admissible in cases of contempt of Court'. It may be pointed out that Sir Edward Snelson was at that time Federal Secretary for Law to the Government of Pakistan and the allegation against him was that he had made certain statements during the course of a speech to which exception was taken by the Court which was of the view that it was contemptuous. Sir Edward Snelson was not allowed to raise the plea that the offending matter was true and consequently he was convicted and sentenced. In the case of State v. Mujibur Rehman PLD 1973 Lah. 1 one of the reasons advanced by the respondents and their counsel for specification of the culpable portion of the article was that they could then be in a position to prove the truth of their allegation. It was held that `according to the settled law, it was not open to a contemner to plead justification of the contemptuous matter. Justification of the seditious or contemptuous matter is not allowed under the law because if this is done, the mischief shall be multiplied and the witnesses who appear in defence of an accused in a sedition case or a contempt matter shall repeat the same seditious and contemptuous matter in the witnesses-box with the result that the mischief, which the law intends to suppress, shall spread all the more wider and public confidence will be further undermined in the organs of the State'.
8. The second legal objection was that the alleged contempt was punishable as an offence under P.P.C. And therefore, its cognizance should not be taken. In this connection it may be useful to reproduce the relevant portion of section 6 of the Contempt of Court- Act which reads as under:-- "6. Bars to taking cognizance ---(1) No High Court shall take cognizance under this Act of a contempt alleged to have been committed in respect of a Court subordinate to it where the said contempt is an offence punishable under the Pakistan Penal Code (Act LXV of 1860)."
The case of Ikramullah v. State 1969 P Cr. L J 920, which is also reported as 1969 SCMR 369 referred by the contemner relates to a contempt imputed to the appellant which fell within the purview of section 228, P.P.C. And, therefore, it was held that `High Court had no jurisdiction for proceeding in such case'. The facts of that case are reproduced from the report as under:-- "The appellant was alleged to have refused to receive certain papers sent by a Lawyer Magistrate to the Court of the Sessions Judge, in connection with a petition pending in the latter's Court. On the facts being brought to the notice of the learned Sessions Judge, he proceeded to censure the appellant and directed that he should be transferred to the Court of a Sub-Judge. On hearing this order pronounced, the appellant is said to have become rude and to have exclaimed that he was being punished for no fault of his, simply because the Lawyer Magistrate who had complained against him, was related to the Chief Justice of West Pakistan. The appellant was reprimanded by the Sessions Judge and ordered to go out. It is stated that even thereafter he went on voicing his resentment in a loud tone in the Verandah of the Court room for some time. The Sessions Judge, therefore, charge-sheeted him for insubordination and rude behaviour and also reported his conduct on the telephone to the Additional Registrar of the West Pakistan High Court, Peshawar Bench. Later he submitted a full report of the incident to the Additional Registrar, which was put up before the Senior Judge of the Peshawar Bench, who ordered the issue of a contempt notice to the appellant."
The case of Ikramullah v. State is altogether distinguishable from the present case on the facts. The next case referred to by the contemner is of M.JA. Gazdar v. Hassan Akbar NLR 1988 (Cr.) Kar. 709 (DB). The same is also reported as 1987 MLD 2169. This was the decision of a Division Bench of this Court of which I was also member. The case of M.J.A. Gazdar is also distinguishable from the present case. Contemner M.JA. Gazdar had made certain allegations in his revision application which he had filed in this Court to which exception was taken and contempt notice was issued before disposing of the revision application. It was, therefore, held that in view of subsection (3) of section 6 of the Contempt of Court Act, cognizance could not be taken because the review proceedings had not been finalised by the time the contempt proceedings against the contemner had been started.
In the case of State v. Abdul Aziz PLD 1962 Lah. 335 the same question came for consideration and it was held that sub-section (3) of section '' of the Contempt of Courts Act, 1926 means that if contempt of Court was committed with regard to a Court subordinate to the High Court and the act which constituted that offence was punishable under the Penal Code as contempt of Court, the power envisaged by the Contempt of Court Act shall not be exercised by the High Court.
Subsection (3) does not mean that if the act which amounts to contempt of Court is punishable under the Penal Code, 1860 not at Contempt of Court under section 228, but as some other offence, jurisdiction of the High Court under the Contempt of Courts Act is ousted. Similar view was taken in Abdul Rasheed v. Mehar Falak Sher PLD 1955 FC 98 where it was held that `offence punishable under the Penal Code' means offence punishable as contempt. The prohibition contained in subsection (3) is limited in cases punishable under section 228, P.P.C. As contempt of Court, but not otherwise. The expression ---offence punishable under the Penal Code--- in subsection (3) does not imply offence of every description punishable under the Code.
In this connection it will not be out of places to refer to the case of Yousuf Ali Khan, a legal practitioner of Lahore, who was in the habit of scandalizing Judges. He addressed a letter to the President of Pakistan deliberately levelling therein maliciously false allegations against Judges of superior Court. His action was held to have constituted a gross contempt. Reference is invited to the case of Attorney-General of Pakistan v. Yousuf Ali Khan PLD 1972 SC 115. Yousuf Ali Khan had also made an application on behalf of his client wherein he had made wanton and reckless attacks on the integrity and dignity of the Court. He was held guilty of contempt and sentenced to one month's simple imprisonment and a fine of Rs.1,000, in the case reported as State v. Yousuf Ali Khan PLD 1969 Lah. 495. The same Advocate then made averments in an application in Court to the effect that `it is also apparent from his (Court's) evasive attitude and the ambiguous and evasive order passed that he intends to prevent framing of the only relevant issue and to make the petitioner suffer a loss of the case. It was held to be the direct attack on the conduct of Court attributing extraneous motive and suggesting to the Court to have incorrectly recorded the statement of counsel and therefore, constituted scandalous charge against the Court'. The decision is reported in State v. Yousuf Ali Khan PLD 1975 Lah. 534. In this case Full Bench of Lahore High Court held Yousuf Ali Khan guilty of contempt and sentenced him to suffer simple imprisonment of three months and to pay a fine of Rs.2,000 which was ordered to run consecutively with another sentence of imprisonment which was awarded to the contemner in another case. Yousuf Ali Khan had also written a letter to a Judge privately which was couched in disrespectful and contemptuous language. It contained imputation against his conduct and behaviour in discharge of his judicial functions charging him with unfairness and intimidating him with personal harm and scandal if he did not desist from such behaviour, was held to amount to interference with due administration of justice and as such to grossest kind of contempt, as was held in the case of Yousuf Ali Khan v. State PLD 1970 SC 350.
I am, therefore, satisfied that the objection of the contemner that these contempt proceedings are incompetent because his action is punishable under P.P.C. Has no force and cannot be entertained. Hence I am satisfied that the contemners had presented the plaint containing culpable para in the Court of XIIth Senior Civil Judge, Karachi on 27-8-1990 and the said words tended to bring the authority of a Court and administration of law into disrespect and disrepute, to lower the authority of the Court and scandalize a Judge in relation to his office and thereby committed an offence under section 4 of the Contempt of Court Act, 1976.
The words used by the contemners is contempt of the grossest nature. The contemners' conduct throughout was such that they deserve no sympathy from the Court whatsoever. I, therefore, convict both the contemners under section 4 of the Contempt of Court Act and sentence each of them to suffer' simple imprisonment for a term of one month and to pay a fine of Rs.10,000 (Rupees ten thousand) each. In default of payment of fine to suffer simple imprisonment for one month more. The sentence shall not be executed till 10-10-1991 on the accused furnishing surety and P.R. In Rs.10,000 (Rupees ten thousand) each to enable them to file appeal.