' MIR HAZAR KHAN KHOSO, J.---This appeal by leave of this Court is directed against the judgment dated 2-7-1992 passed by the learned Judge-in-Chamber of the High Court of Balochistan, Quetta, whereby he rejected application dated 8-4-1992 moved on behalf of the appellants for withdrawal of suo motu contempt and other proceedings initiated against them by the learned Judge under section 3/4 of the Contempt of Court Act and section 197 of the Pakistan Penal Code.
2. The facts in brief giving rise to this appeal are that one Aurangzeb alongwith his companion was booked and arrested for offence under section 302/307/34, P.P.C. Vide F.I.R. No,37/90 registered at Police Station, Kuchlak (Balochistan) on 22-6-1990. Aurangzeb filed bail application before the Court of Sessions Judge (Ad hoc), Quetta. His application was dismissed by the learned Sessions Judge on 18-9-1991. He approached the High Court of Balochistan for grant of bail on the ground that he had suspected tumor in brain where for facilities of C.T. Scanning etc. For diagnosis were not available at Quetta and same could be availed at Karachi or Rawalpindi. On such ground the learned Judge in Chamber of the High Court on 3-10-1991 granted him interim bail in the sum of Rs,10,00,000 for a period of one month and thereafter he would surrender himself before the Court.
Aurangzeb went and got himself examined in Jinnah Post-Graduate Medical Centre, Karachi. He remained under the observation of Dr. I.H. Bhatti, Professor of Neuro Surgery. After expiry of one month he did not surrender himself before the Court and absconded. The learned Judge in Chamber issued notices to the sureties for production of Aurangzeb and also issued non-bailable warrants for his arrest. All went in vain. The learned Judge forfeited the entire surety bond. However, he called for the case history of Aurangzeb from the Civil Hospital, Quetta,. The history revealed that Aurangzeb had urinary tract infection. In such view of the fact on 12-12-1991 the learned Judge directed the Secretary, Health Department, Government of Balochistan, Quetta, to constitute a Board to examine the history-sheet of the patient and opine whether he had suspected brain tumor or not. The Board confirmed that the patient had Urinary Tract Infection. But they did not give final opinion regarding his illness about brain tumor. They said that such opinion could be given after they examine Dr. Muhammad Anwar Kurd, the appellant who bad examined the patient. As Dr. Kurd was on vacation he could not be examined by the Board. Resultantly no final decision in that respect was submitted. In such situation on 12-1-1992 the learned Judge decided to take action under the Contempt of Court Act and section 193/197/198, P.P.C., against the appellants. Show- cause notices were issued accordingly. They filed joint reply on 20-1-1992. Their reply did not find favour with the learned Judge, who on 12-3-1992 initiated action under the provisions of section 3/4 of the Contempt of Court Act and section 197, P.P.C., against the appellants. However, on 9-4-1992 the counsel for the appellants moved application for withdrawal of the proceedings against them.
After hearing Mr. Azizullah Shaikh, the learned counsel for the appellants and Mr. Salahuddin Mengal, Assistant Advocate-General assisted by Mrs. Ashraf Abbas, Advocate and two Advocates M/s. Shakeel Ahmed and Syed Ayaz Zahoor as amicus curiae and Ch. Rafique Ahmed, Advocate for the complainant, the learned Judge on 2-7-1992 dismissed their application. The appellants approached this Court and sought for leave to appeal through Criminal Petition for Leave to Appeal No,79 of 1992. Leave to appeal was granted to them on 19-10-1992 in the words as follows:-- "Learned counsel for the petitioners inter alia contends that the medical certificate forming basis of criminal proceedings against the petitioners who were senior doctors of the Provincial Civil Hospital, Quetta, was not issued for production in Court in connection with the bail application and in any case the act of issuing the said certificate does not fall within the ambit of section 3 of the Contempt of Court Act, 1976. Further submits, that on admitted facts no offence under section 197 of the P.P.C. Is made out nor such offence can be summarily tried. These contentions and the related questions require examination. Leave to appeal is granted and proceedings before the High Court are stayed."
3. The record reveals that the appeal was heard by two Hon'ble Judges of this Court on 5-10-1993 and by an oral order this Court accepted the appeal, but the judgment was not brought in black and white. After a period of about one year the file of this Court was placed before the Hon'ble Judges, who directed the Office to relist the appeal. The order is as under:-- "This appeal was heard on 5-10-1993 and was verbally announced to have been allowed. The paper-book has been produced before us by the office today of writing the judgment. Since more than a year has elapsed it needs re-hearing which is not now possible for us as both of us are retiring. It may be listed for re-hearing."
4. We have heard Mr. Azizullah Shaikh, Senior Advocate Supreme Court, for the appellants and Raja Abdul Ghafoor, Advocate Supreme Court, for the State .
5. With their assistance we have gone through the file of the case and the impugned judgment dated 2-7-1992 passed by the learned Judge in Chamber of the High Court.
6. The certificate which had given cause to the learned Judge in Chamber for initiating proceedings against the appellants is at page 70 of the paper book. It would be useful to reproduce the same. It reads as under:- "Mr. Aurangzeb at present admitted in Jail Ward of this Hospital was examined by the Standing Medical Board on 31st August, 1991. He is a suspected case of Brain Tumor. He is advised C.T. Scan which is not possible in this Hospital. He is, therefore, referred to Jinnah Post-Graduate Medical Centre, Karachi, or C.M.H., Pindi."
' The date of issuance of this certificate is 31st August, 1991. It may be seen that the learned Sessions Judge (Ad hoc) Quetta, on 18-9-1991 had rejected bail application of Aurangzeb. The abovesaid certificate indeed was not produced before the Ad hoc Judge, which is reflected from the order itself. The order reads as under :-- "The charge against the accused was framed on 24-2-1991 that on 21-6-1990 the accused blocked the Highway at Bostan Road, Kuchlak intercepted a Suzuki Pick-up and opened fire whereby one Shadi Khan died, while one Allah Noor sustained injury. It is observed that despite regular attendance of the prosecution witnesses their statements have not been recorded for one reason or the other mostly on behalf of the accused. The acceptance of this application would amount putting of the case for indefinite period. Despite direction to the Jail authorities that accused should be produced before the Court by-all-means the order was not complied for 2 hearings. Let the eye-witnesses be examined whereafter if there would be reasonable grounds other than ailment, the application will be considered. At this stage, the application is dismissed."
7. With certainty it can be said that the above certificate though available was neither produced nor relied upon before the Court of the learned Ad hoc Judge, Quetta, He rightly did not consider it.
The impugned judgment reflects that the learned Judge-in-Chamber had neither referred Aurangzeb for examination nor for report of his aliment. Obviously the learned Judge had relied upon the certificate on its own and granted interim bail to him. The certificate was issued by the appellants before the application 'was moved in the High Court. The certificate indicates that the appellants had suspected case of brain tumor and advised him C.T. Scanning, which was not possible in the Civil Hospital, Quetta and they referred him to the Jinnah Post-Graduate Medical Centre, Karachi or C.M.H., Rawalpindi. Manifestly the appellants had not given any opinion that Aurangzeb had brain tumor. The certificate is of directory nature. In such situation as such when certificate was produced before the Court the report of the medical expert ought to have been called for from the hospital. However, it was not done. Aurangzeb was granted interim bail.
Undisputedly the certificate dated 31-8-1991 was not issued for the purpose of being produced before the Court for the purpose of bail. The appellants as such had not interfered with the administration of the dispensing of the justice.
8. Regarding the certificate it may be observed that it was of directory nature. It cannot be said to be a false one. For diagnosis actually Aurangzeb had gone to Karachi and was admitted in the Special Ward of Jinnah Post-Graduate Medical Centre, Karachi and remained under observation of Neuro Surgeon, who had opined that he was under considerable stress and manifested signs of severe depression. He was advised psychiatric consultation and electroencophalogrphy. He was advised to have his C.T. Repeated after three months to rule out the possibility of a progressive cerebral disorder. More or less the Neuro Surgeon has supported the certificate issued by the appellants. It cannot be said that the certificate was false so as to fall within the mischief of section 197, P.P.C. We as such are of the considered view that the C appellants have neither committed contempt of Court nor have produced false certificate before it. The impugned order as such cannot be sustained. We are, therefore, inclined to accept the appeal, set aside the order dated 2- 7-1992 passed by the learned Judge in Chamber of the Balochistan High Court. Resultantly the proceedings initiated against the appellants are quashed.