' MUHAMMAD NAWAZ ABBASI, J.--- This appeal under section 10 of the Contempt of Court Act, 1976 has been directed against the judgment, dated 8-5-1982 passed by the learned Single Bench of this Court in Criminal Original No,1 of 1982 arising out of Criminal Miscellaneous No,175/H of 1981 whereby the appellant was convicted under section 4 of the Contempt of Court Act, 1976 and vas sentenced to one month's S.I. With a fine of Rs,4,000.
2. Precisely, the facts leading to this appeal are that one Mst. Anwar Bibi was married to Allah Ditta and in exchange sister of Allah Ditta was married with Manzoor, her brother. Due to the strained relations, Mst. Anwar Bibi left house of her husband and came to her brother Manzoor who did not allow her to stay with him at the cost of disturbance of his family life. Resultantly, Mst. Anwar took shelter in the house of one Atta Muhammad, a close friend of her father and instituted a suit for dissolution of marriage against her husband. In the meanwhile Manzoor, the brother of Mst. Anwar got a case registered under Hudood Ordinance against Ahmad and others for the allegation of abduction of Mst. Anwar. The investigation of the case was entrusted to Chaudary Nazir Ahmad A.S.I. Police Station Harrapa who recovered Anwar Bibi from the house of Atta Muhammad and kept her with him for a few days and thereafter produced her before a Magistrate where she belied the allegation of her abduction by Ahmad and otheRs, However, she desired to go to the house of her mother. Nazir Ahmad, A.S.I. Was directed by the Magistrate to take her to the house of her mother but he instead of obeying the order of Magistrate took the lady to the house of one Sardar Qureshi where she was subjected to forcible intercourse by Nazir Ahmad, A.S.I. During the period she remained in his custody.
3. Atta Muhammad, from whose custody Mst. Anwar Bibi was recovered, thereafter moved a habeas corpus petition for her recovery from the illegal custody of Nazir Ahmad, A.S.I. And on the direction of learned Single Bench of this Court, the lady was produced before the Court. She stated that she was living with her mother and was not in illegal custody of any person. She desired to go with her mother and accordingly the petition was disposed of.
4. After a few days Mst. Anwar Mai filed a petition supported by an affidavit stating that she was ravished by Nazir Ahmad, A.S.I. To compel her to make a false statement favourable to him before the High Court. It was complained that despite information about the commission of cognizable offence by Nazir Ahmad, A.S.I., the concerned S.H.O. Has not taken any action in the matter. The learned Single Bench of this Court vide order dated 15-9-1981 issued direction to the following effect:-- "Mr. Sharif Hussain, A.S.I. Is hereby directed to see that the report is recorded in the daily diary on the basis of statement of Mst. Anwar i3ibi applicant which he is now carrying with him. The S.H.O. Police Station 'A', Division Sahiwal shall ensure that the said F.I.R. Is duly recorded and the case is investigated according to law."
5. Sharif Hussain, A.S.I. After recording the statement of Anwar Bibi and completing the other formalities forwarded the case to the concerned police station for necessary action in compliance of the order, dated 15-9-1981 passed by the learned Single Bench of this Court. The respondent, the then S.H.O. Harrapa instead of registering a case, entered a report in the Roznamcha with the remarks that the case is false and Nazir Ahmad, A.S.I. Is innocent.
6. On coming to know about the matter Rana Muhammad Akram respondent was issued a notice under section 7 of the Contempt of Court Act, 1976 and the proceedings for the contempt of Court were initiated against him. He was called upon to show cause as to why he be not punished for contempt of Court. In reply to the show-cause notice he stated that on 17-9-1981 he had received the order of High Court through P.D.S.P. Alongwith statement of Mst. Anwar Bibi recorded by Sharif Hussain, A.S.I. He having the personal knowledge about the matter suspected that Anwar Bibi by making a false statement misled the High Court. He consulted the S.D.P.O. In the matter who advised him that in the circumstances, he is supposed to proceed in terms of Rule 24.4 of the Punjab Police Rules, 1934 which provides that an Incharge of Police Station if has a reason to suspect that the alleged offence has not been committed, he shall enter the information in the station diary recording the reasons for non-commission of offence and will not investigate the case or caused to be investigated, but if an Inspector or other superior officer comes to the conclusion that the case should be investigated, he shall pass an order to that effect. The appellant, however, tendered unqualified apology and placed himself at the mercy of the Court with the plea that he did not act deliberately with the intention to disobey and flout an order of this Court, rather he while acting under the advice of the S.D.P.O. Was misled to proceed in the matter under the Police Rules. The learned Single Bench treating unqualified apology tendered by the appellant as an admission of the allegation and the charge, convicted him with the observation that the respondent intelligently in order to provide protection to Nazir Ahmad, A.S.I. And to save him from criminal prosecution instead of registering a case as per direction of the High Court entered report in the Roznamcha declaring him innocent without investigation of the case.
However, the unqualified apology was considered as mitigating circumstance and the learned Single Bench refraining himself from giving maximum penalty awarded him a sentence of one month's S.I. With fine of Rs,4,000.
7. It has been contended by the learned counsel for the appellant that respondent did not intentionally disobey the order of this Court but because of the ill-advice by his superiors, he was misled in the matter and proceeded to the wrong direction, otherwise he instead of proceeding in terms of Police Rules could easily register a case and subsequently declare Nazir Ahmad, A.S.I.
Innocent in the investigation. He submitted that the procedure adopted by the S.H.O. Was in good faith with bona fide intention having no intention of disobeying the order of this Court. It was not a deliberate disobedience of the order of this Court but a negligent act. The unconditional apology tendered by the appellant without contesting the matter amounts to show high respect to the dignity of this Court. He argued that not to contest the charge of contempt of Court and tendering unqualified apology ipso facto is not an admission of the guilt or the charge. However, he submitted that the appellant has sufficiently been punished by way of reprimand and with mental agony.
8. We have heard the learned counsel and considered the arguments advanced by him.
9. There is no cavil to the proposition that disobeyance or noncompliance of an order passed by this Court whether intentionally or negligently and that too by a public functionary amounts to a contempt of Court. The respondent was holding a responsible position and was not supposed to take any exception to the order of this Court. It appears that he consciously proceeded in the matter and accordingly with the consultation and advice of his superiors instead of proceeding under section 154, Cr.P.C. Entered a report in the Roznamcha under Rule 24.4 of the Punjab Police Rules, 1934. This action was two-fold in its nature with the intention to give effect to the order of the High Court without damaging his subordinate. Undoubtedly, this compliance was not a compliance in the letter and spirit of the order. However, the question for determination will be whether the procedure adopted by the respondent was with the intention to disobey the order and to show disrespect to the High Court or to avoid the consequences of the order passed. We are of the view that the respondent in fact to save his subordinate from the consequences of the order proceeded in the wrong direction without realizing that he was calling trouble for himself. It looks that he entered report not with the intention to disobey the order but to avoid its consequences otherwise he being S.H.O. Of the police station could not take risk of initiation of contempt proceedings against him for the benefit of his subordinate. The action appears to have been taken not with mala fide intention but with some misconception, misunderstanding and because of ill- advice on the part of his superioRs, His tendering unconditional apology and placing himself at the mercy of the Court fortified his version of not disobeying the order of this Court deliberately.
10. Disobedience of the order of this Court cannot wipe out with mere apology which is not a defence to the charge rather as observed by the learned Single Bench, it is only a mitigating circumstance. The proposition that the moment apology is tendered by the contemner, the contempt however gross and unexcusable may be, automatically purged cannot be conceded to, rather the question whether the apology has the effect of purging or not is to be decided with reference to the facts and circumstances of each 'case. It is difficult to lay down a general proposition that the tendering of apology automatically purged contempt thereby giving licence to the people to defame Courts and Judges and then come with a beautifully worded apology.
Therefore, an apology in a contempt case is not defence but a mitigating circumstance that too if it is tendered sincerely and unconditionally having the effect on the mind of the Court that it is unconditional and sincere and it can hardly be rejected. Unconditional written apology expressing profound and real regret is a gesture to appreciate but if the allegations are of extreme serious nature particularly in the cases where the allegations are against the Judges of the superior Courts, the contemner should be dealt with strictly and seriously with no leniency.
11. The contempt proceedings are quasi-criminal in nature, and therefore, benefit of every doubt should go to the accused. The jurisdiction of the superior Courts to take action for contempt of their own authority is always jealously guarded but it is to be exercised sparingly. In case of a person apparently defying order of the Court but leaving room for doubt with regard to his intention and belief, possibly that he acted either mistakenly or on wrong notion and advice about his duty with regard to the compliance of the order of the Court, the benefit of doubt should ungrudgingly be given to him.
12. The appellant before this Court has again tendered a sincere unqualified apology with undertaking to be careful in future with the submission that he proceeded in the matter without the intention to flout the order but for some misunderstanding and misguidance for which he is badly and seriously perturbed. He, while placing himself at the mercy of the Court submitted that he has always been highly respectful to this Court and never thought to degrade its dignity, honour and authority. We feel that the appellant for want of proper advice and due to misguidance, having soft corner for his subordinate proceeded in the matter without realising that it could call trouble for him, therefore, the possibility of his proceeding in the matter without the intention of disobeying the order of the Court or to lower its dignity cannot be ruled out and the benefit arising in the situation as to whether he acted deliberately or proceeded in the case with no bad intention is to be given to him. We are also of the view that while treating the unconditional apology tendered by the appellant as his admission to guilt, he should have been provided an opportunity to make his defence on the point that his act was not deliberate and intentional before convicting him. We, therefore, giving him the benefit of doubt arising in the circumstances of the case coupled with the fact that he has sufficiently been reprimanded and faced mental agony, as a matter of grace and gesture, accept the unconditional apology tendered by him before the learned Single Judge and also before us and while accepting his appeal, set aside his conviction and sentence and acquit him of the charge.