MUHAMMAD AFZAL ZULLAH, J.--Notice of contempt was issued to Mr. Shaukat Ali, President of the High Court Bar Association, Lahore, on the complaint by Mr. Habib-ul-Wahhab Elkheiri, an Advocate of Rawalpindi In the petition moved under Article 204 of the Constitution, it was stated that Mr. Shaukat Ali, who had been removed from the office of a Judge of High Court on 'the recommendations of the Supreme Judicial Council, had, started Law practice. He, through a telegram expressed the desire that "he --would like to address the Bar Association Rawalpindi on 25-7-1975". On, the said date, during the speech he said: that "there is corruption in judiciary-- from lowest to the highest level": that the members of the Bar did not know "as to what is happening in the Chambers of the Judges of the superior Courts meaning thereby both Judges of the High Court and the Supreme --Court"; that during Martial Law days "a written judgment was torn out by a Judge of a High Court in his Chambers in the presence of a Commissioner"; that "we do not want Judges like Munir and Cornelius"; that "he further emphasised that he has taken upon himself to expose corruption and: dishonesty in the judiciary". When confronted by the audience that he had: himself been removed as a Judge of the High Court on a unanimous verdict of proof of charges levelled against him, Mr. Shaukat Ali, it is further asserted in the petition, also scandalised members of the Supreme Judicial", Council. The assertions made in the petition were supported by a copy of the minutes of the meeting addressed by Mr. Shaukat Ali, kept by the Secretary of Rawalpindi Bar Association. The minutes support the afore noted complaint in all material particulars. In addition, it is mentioned therein that several members of the Rawalpindi Bar Association including some senior members did not approve of the arrangement of a meeting to be addressed by Mr. Shaukat Ali. In the address therefore, he complained that "Pindi Bar gave him a cold reception" and tried to explain that there was some misunderstanding about his "slogan in his election that he would bring back the Supreme Court to Lahore". While dealing with the point of Circuit Bench at Rawalpindi, he remarked "that if the Judges of the High, Court held Court at Divisional Headquarters, they will be liable to be: influenced by the Commissioner, the Deputy Commissioner and the S. S. Ps." During the address, several members of the Bar contemporaneously protested. Against "utterances of Mr. Shaukat Ali against the judiciary. There was heated conversation between some members of the Bar on one hand and Mr. Shaukat Ali on the other". The Secretary concluded that "the members were thoroughly disgusted at the outburst of Mr. Shaukat Ali against the judiciary".
2. The petition came up in motion hearing during long summer-- vacations before one of us (Zaki- ud-Din P.1, J.) on 6-8-1975. After noticing the complaint and the salient features of the speech of Mr. Shaukat Ali contained in the minutes, notice was ordered to be issued to him to show cause "why necessary action should not be taken against him under the law for committing contempt of this Court". Notices were also issued to they Advocate-General, Punjab and the President, District Bar Association. Rawalpindi, for rendering assistance in the case. On account of the importance of the matter, recommendation was made to the learned Chief Justice for constitution of a larger Bench for its disposal. It was the first case of its type during the history of this Court and the Lahore High Court Bar Association of over a century, wherein a complaint was made by a member of the Bar against the President of the premier Bar Association who himself had held office of a Judge of the High Court and had been removed from that office on charges. Thus, this Bench of seven Judges including the Chief Justice, the senior puisne Judge and for next senior Judges and the referring Judge was constituted on 9-8-1975. It was on account of the same reason that Mr. M. Anwar, an eminent lawyer was requested to assist the Court as amicus curiae.
3. The proceedings commenced on 22-9-1975 when Mr. Shaukat Ali submitted a written statement denying the correctness of the statements attributed to him. To a question then asked from him, "he frankly conceded that if _ the contents of the minutes, as recorded, were true then certain statements therein did constitute contempt of Court". In reply to a Court question regarding the statement attributed to him on the point of corruption that it was prevalent from the lowest to the highest level, he submitted that "this statement was not at all relatable to the `Judiciary' but to the `Executive' and added that what he said was that `corruption was prevalent from the highest to the lowest level in the Executive'." He further elucidated the expression "highest to the lowest" by mentioning certain State functionaries, but it is not necessary to give the details.
4. As Mr. Shaukat Ali had denied the correctness of the statements attributed to him, it was found necessary to hold an inquiry in order to sift the truth. Mr. M. Anwar suggested that the parties might tender affidavits in support of their respective versions where after an opportunity of cross-- examination would be afforded. The suggestion was accepted by the accused contemner. Some affidavits were submitted by Mr. Zafar Mahmood, President of the Rawalpindi Bar Association.
Procedure was laid down by the Court for submission of other affidavits and the case was adjourned to 29-9-1975 for the recording of evidence by two of us (Muhammad Akram and K. E.
Chauban, JJ.).
5. Before the recording of the evidence could commence the accused contemner presented an additional written statement before the Bench of two Judges, wherein amongst other things he purported to show that one of us had bias against him. In his oral address after presenting the additional written statement, he made a statement to the effect that these proceedings "were manoeuvred against him" on account of the aforementioned bias and personal differences and thus "are motivated". These utterances as also the averments in the additional written statement were prima facie considered to have constituted contempt of the High Court in its view. A notice was there and then issued to the accused contemner to show cause why he should not be punished accordingly. He tried to explain the afore noted statements by emphasizing that "these are his feelings and impressions". He partly argued the matter but after some time sought adjournment which was allowed and the case was adjourned to next day, i.e.. The 30th of September 1975 for argument on the fresh show-cause notice. Although he had taken time to complete rest of his arguments but he left for Rawalpindi without permission of the Bench to file a petition for special leave to appeal in the Supreme Court against the order issuing him shoe-cause notice for having committed the aforesaid fresh contempt. The Supreme Court did not grant the stay order. It is not necessary to make 'any further comment on that case, namely, Cr. Org. No. 7& of 1975, as the same is being separately tried by the afore--mentioned Bench of two of us. However, several adjournments (mostly on ground of illness) were sought on his behalf till 30-10-1975 when he appeared in person with his counsel, Mr. Rafiq Ahmad Khan Bangash, who made the following statement:- "I have instructions to withdraw all the applications and statements, written or oral, made or filed in this Court by the respondent. They should be considered as never to have come on record and may be returned to him in original. I have also instructions to further state that my client wishes to purge himself of the contempt and shall make a statement to that effect before the larger Bench constituted to hear this case. It is requested that no evidence in the case may be recorded and the case may be laid before the larger Bench."
In view of the position taken by the accused contemner in the above-quoted statement of his counsel, evidence was not recorded and this case was adjourned to 5-11 ---1975 "to be placed before the larger Bench". When it came up before the Full Bench, Mr. Rafiq Ahmad Khan Bangash at the very outset submitted "that on instructions from his client he had, on the 30th of October 1975, while appearing before the Division Bench, made a categorical statement withdrawing all the statements of the respondent which were considered to be objectionable or which were in aggravation of the contempt of this Court". He further said that "the respondent was repentant, offers unqualified apology and, therefore, wants to make a statement to that effect". He also added "that before his client made a statement, he would point out that he did not think that the simple withdrawal of the statements would purge his client from the contempt committed by him, and that he was of the view that the respondent should do so by telling the Press and the people about the damage done to this Court". The accused contemner wanted to make a statement there and then, but we asked him that he should put in a written statement. A statement was placed before us, on perusal of which it was observed that the same did not fulfill the requirements of an unconditional apology. On this, the accused contemner stated that "he did not contest the facts; that he also did not want to contest the case, and that he tenders an unqualified apology".
Thereupon, the written statement was returned to him and the case was adjourned to next day, i.e., 6-11-1975, because he wanted to submit another written statement. Next day, it was made clear by the Court that the question of the effect of the submission of as unconditional unqualified apology would be considered on its own merits. Mr. Rafiq Ahmad Khan Bangash sought adjournment till 10- 11-1975, but the accused contemner himself stood up and, despite the request earlier made by his counsel, spontaneously stated that he did not want adjournment and, at the same time, submitted a written statement which he had already prepared. It reads as follows: "I do not want to contest the proceedings. I am extremely sorry for the things done and said by me.
I withdraw my statements and give an assurance that I shall be more careful in future. I have profound respect for the learned High Court. I tender unqualified apology and place myself completely in the merciful hands of this learned Court."
During the course of the hearing of arguments, he, on a clarification sought by the Court, made this further statement: "Q. You bad said in your written apology: 'I do not want to contest the proceedings. I am extremely sorry for things done and said by me. I withdraw my statements . . . .' What did you precisely mean by this?
A. By that I meant that the statements which I made before the Rawalpindi Bar, and are attributed to me, were false, incorrect and wholly without foundation."
On the submission of the above apology, all the learned counsel appearing in the case as also the complainant were allowed opportunity to address the Court with regard to the effect thereof.
6. Sh. Ghias Mohammad, Advocate, who had also appeared for the accused contemner, submitted that the apology was unconditional, spontaneous, t sincere, without any reservation and outpouring of a penitent heart, and that, therefore, considering the position of the accused contemner as the President of the Lahore High Court Bar Association, some consideration must be shown in his favour and that it should be accepted as having purged the contempt committed by him. Mr. D. M. Awan, learned Advocate-General, submitted that the apology might be accepted as a mitigating circumstance in the matter of punishment. He however, at a later stage, modified his stand and-submitted that if the conduct of the accused contemner during the pendency of these proceedings including his earlier two written statements filed in this Court be taken into consideration, as also the fact that the apology was tendered at a very late stage, then no extenuating circumstance would be found in his favour. Mr. Zafar Mahmood, President of the District Bar Association, Rawalpindi submitted that the apology may -be accepted since the accused contemner was sincerely repentant. Mr. M. Anwar, amicus curiae, submitted that the apology tendered at this stage by the accused contemner would have to be considered in the light of the following principles:- "(1) The apology must be unconditional, unreserved and unqualified;
(2) The apology must be offered at the earliest possible stage of pro--ceedings in contempt;
(3) The apology should be sincere and should appear to be the outpour--ing of a penitent heart and not merely a formality;
(4) The apology should not be postponed till the fag end of the proceedings;
(5) An apology to be an effective purgation of the contempt, there should be no attempt at justification of any of the acts complained of and justification should be scrupulously avoided; and
(6) An apology is vitiated if it is couched in language indicating a condi--tional apology."
He further contended that the apology tendered by the accused contemner would not purge the contempt committed by him because it did not fulfil all the requirements. While elaborating his argument, at a later stage, Mr. Anwar thought that after the afore noted clarification made by the accused contemner on the question put by the Court to him, "the apology is perfect", but "it did not purge the contempt". He further expressed the view that the demands of justice be met but with "wisdom and mercy". He, however, did not make any specific recommendation about punishment.
The complainant also addressed the Court and emphasized that the accused contemner, on account of his-knowledge of law, should have been careful in his utterances. Instead, he went from place to place and made public speeches. All this was not without motive. He did not tender the apology on first opportunity. There was no evidence of firm resolve on his part not to repeat the contempt and as the apology, according to the complainant, was not sincere, there was no question of its having purged the contempt. He, at the end, pleaded that the conduct of the accused contemner qua past events, his present attitude and future apprehensions may be kept in view and that while ignoring his position in life, he should be dealt with in accordance with law.
He also relied on A. K. M. A. Awal v. The State (PLD 1972SC 115) and Attorney --General v. Yusuf Ali Khan (PLD1964SC562).
7. There is no dispute as to whether the utterances of the accused contemner noted in the opening part of this judgment, which are the subject matter of the charge in the complaint and have been admitted by him to be "false, incorrect and wholly without foundation", do constitute contempt of this Court-in fact, he had on the very first hearing, after notice, made an admission in this behalf; nor there is any question as to whether, ordinarily, such contempt should not be severely punished.
What falls for determina--tion, however, is the effect of the apology tendered by the accused contemned at somewhat late stage in the proceedings. - It i3 no doubt unqualified an unconditional, but the question arises whether it has completely purged the contempt; and if not, whether and how the contempt should be punished.
8. In order to properly appreciate the controversy arising in the afore noted questions, it is necessary to briefly survey the case-law cited at the bar. In the identical case of Yousaf All Khan the contemner, a lawyer, had addressed a letter to the President of Pakistan, the assertions wherein Constituted contempt. He, later on, withdrew all the allegations in the letter, admitting them to be false. Their Lordships, while dealing with the effect of this withdrawal and unqualified apology tendered by him, observed that "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 un--qualified 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 con--temner may by itself be taken to be a sufficient amend for which no punish--ment might be considered necessary or lesser punishment might be considered adequate". In the case before their Lordships it was thought that gross contempt had deliberately been committed for which apology in writing could not be considered to be sufficient amend for excusing the contemner altogether, even though it was unconditional and was accompanied by withdrawal of all allegations without any reservation. Reasons were also found to believe that he was ill-advised to send the offensive letter to the President. In these circumstances, "having regard to the unqualified apology", the question of punishment was dealt with leniently and the contemner was sentenced to simple imprisonment for two, months and a fine of Rs. 1,000 or, in default, to suffer simple imprisonment for 15 days. It is important to note that in addition to this punishment, their Lordships also severely warned him "not ,to indulge in future in any contemptuous acts which might scandalize Judges of the superior or - subordinate Courts or undermine the judiciary" Arif Nizami and 2 others (PLD1971SC72) it was held that-an apology does not provide the contemner with an absolute excuse nor does it entitle him to a discharge as of right, for, it cannot remedy the evil caused or the harm done to the administra-- tion of justice by shaking the confidence of the public in the Court or a parti--cular Judge of the Court. It. Is only a mitigating circumstance and no more, but even in this respect in order to dilute the gravity of the offence it 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. A warning was administered in that there should not be any-impression that after one has grievously slandered and scandalised a Judge of a superior Court be 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. The apology was not treated as full amend for the grave contempt committed in that case. In another case of Yusuf Alt Khan, after reiterating the conditions governing the acceptance or otherwise of an apology laid down in another case of A. K. M. A. Awal, to be presently noticed, their Lordships of the Supreme :Court held that there was nothing inherent in the words used by the contemner when tendering apology to show that he was sincere in regretting what he had ,done: The very fact that the contemner had gone up to the stage of Supreme Court "to challenge the decision of the High Court", it was further noted, undicated that the contemner was still trying to justify the act on the plea of .Privilege. In re: A. K. M. A. Awel, the accused contemner was a Sub-Divisional Officer, Sadar (South), Chittagong. He wrote a letter to a 'Magistrate in connection with a criminal trial pending before the latter, which was found by the High Court to have constituted contempt of the Court of the learned Magistrate. He was accordingly convicted and awarded sentence of fine for contempt. The apology tendered by him in the High court was not treated as having completely purged the contempt. After noticing that it was not to the High Court, but to the Magistrate's Court that an apology should properly have been directed, the Supreme Court observed that it was material for the point under consideration as to
(i) whether the contemner had appreciated that he had committed contempt; (ii) whether he regretted it; (iii) whether he was sincere in his regrets; (iv) whether the apology was accompanied by expression of a resolution never to repeat the offence; and lastly, (v) whether the contemner made humble submission to the authority of the Court. It was found that there was nothing in the apology which could stand in the way of its being accepted as an expression of complete repentance and a firm purpose of amendment. The High Court had not accepted the same in that light because of the finding that it was not sincere. While dealing with the charge of in sincerity, their Lordships relied -upon the concept of repentance and mercy as contained in the Holy Qur'an and Sunnah. The weighty observations made in this behalf are as follows:- "As for the doctrine that an offence is to be forgiven if the offender expresses regret, truly repents his action, and makes a firm purpose of amendment, that is one which, if I may say so, the vast majority of the citizens of Pakistan would accept without question. There are texts in the Scriptures of Islam to the effect that to him who repents after his-- transgression and makes amends, mercy will be shown."
After dealing with two other aspects of the case, it was found that indeed an act of contempt had been committed. The conviction, therefore, was upheld put in the circumstances it was not considered that anything "in the nature of punishment" was necessary beyond the fact that the contemner, had been dragged through a public trial and held up to public disesteem and because he had made a full unqualified and complete apology, it was thought that no more punishment than "an admonition and a direction not to repeat the offence" was necessary. In the case of Sir Edward Snelson v. The Judges of the High Court of West Pakistan, Lahore and another (PLD 191 SC 237), apart from dealing with many aspects of the law .Of contempt including its similarities with law of sedition as distinguished from libel, the Supreme Court propounded the philosophy underlying the tender of apology. It was --thought that in vast majority of cases, respondents to a notice of contempt preface their submissions with an apology and that `tic has long been accepted, that the extraordinary power of punishment for contempt has been given to the Courts in order `to keep a blaze of glory around them and toe deter people from attempting to render them contemptible in the eyes of the public'. Any individual or institution who or which is conscious of this principle and adheres to it would necessarily feel that to give offence-- to a Court at all, in a manner such that the Court feels it has been lowered in the eyes of people, is a matter for regret, and no person or institution in a State should feel himself or itself so great as to regard the offer of an apology as being beneath his or its dignity". It may be --mentioned here that these observations of the Supreme Court were relied upon in the Lahore case of Mir Abdul Qayum (PLD 1964 Lab. 661). It is noted at page 675 of the report that during the arguments it was expected that the accused contemner would offer an unconditional apology a. It was assumed that he did know that the disparaging remarks constituted con--tempt of Court. Despite this circumstance, it was noted "with some regret" that he did not offer an unconditional apology and in that context it was further observed that "at any rate better sense should have prevailed to offer an unconditional apology". It was held by the Supreme Court in the case of Sir Edward Snelson that Judges as a class and High Courts as institution, if scandalized without any reference to individual Judge or Judges, it would even then constitute contempt. As to plea of fair comment taken in that case, it was held, the same was inadmissible where it was based on legal and factual infirmities and. Thus, lacking in bona fides. As to the late expression of regrets in the nature of apology and with--drawal of offending matter from further circulation, it was observed with regret that it was postponed till such "late stage when the mischief had already been caused". Notwithstanding the fact that such a subsequent endeavour to prevent further publication of offending material could not, "strictly speaking, exculpate the contemner or excuse the earlier publication" a more charitable view was taken and the culpability of the offending talk was dealt with on merits. As to the effect of apology on mischief already done, the Bombay case of Marmaduke Pickthall (AIR 1923 Bom. 242) might be mentioned here with advantage. It was observed therein that an apology does not remedy the evil caused by publication of objectionable matter. If High Court acts in the interest of administration of justice, it is clearly that while an apology may be to some extent a reparation on the part of the offender, it cannot overtake and counteract the mischief already done by the original publication.
Where the publication is due to a repetition of negligence which has been condoned in the past, an apology becomes little more than an idle form. In the case of The State v. Sayyad Habib (I L R 6 Lab.
528), an apology had been tendered in the form of an affidavit which the contemner had made "much fuller one in addressing the Court". Nevertheless, it was thought that the scandalous nature of the article published called for punishment "that shall be a deterrent not only to the offender in this case but to all others". Accordingly, sentences of simple imprison--ment and heavy fine were imposed. In R. v. Odham's Press Ltd. And others ((1956) 3 All E R 494), one of the reasons for imposing heavy sentence of fine was that the material in question was published "with a view to increasing circulation and with no other object". In this case, the relevancy of this observation might be in the context that the accused contemner might have wanted to make some material gain including his popularity by scandalizing the superior judiciary. In Attorney-General v. Times Newspapers Ltd. (1973) 3 All. 6 R 54) it was thought that the seriousness of risk as distinguished from possibility of interference with due administration of justice is relevant only to the question whether the contempt is such for which the Court in its discretion ought to inflict any punishment and if so, what punishment. A passage from the judgment in Sub-Judge, First Class, Hosha-rgabad v. Jawahar Lal Ramchand Parwar (AIR 1940 Nag. 407) may be reproduced here without comment.
It reads as follows: "An apology is not a weapon of defence forged to purge the guilty of their offences. It is not an additional insult to be hurled at the heads of those who have been wronged. It is intended to be evidence of real contriteness, the manly consciousness of a wrong done, of an injury, inflicted, and the earnest desire to make such reparation as lies 'in the wrong-doer's power. Only then is it of any avail in a Court of justice. But before it can have that effect it should be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage, the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge (when that happens, as it did here) has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology ; it ceases to be the full, frank, manly, confession of a wrong done which it is intended to be. It becomes instead the cringing of a coward shivering at the prospect of the stern hand of justice about to descend upon his head. It then deserves to be treated with the contempt with which cowards and bullies who do not hesitate to threaten others and to impugn their honesty and character without the slightest foundation and who cringe and wail when their own safety is at stake, are treated. However, I do not intend to make a point of this in this case because of the misconception which is prevalent in these parts about the meaning, nature and effect of an apology ; nor of course am I intending to lay down any universal rule or to ignore the proviso, to section 3, Contempt of Courts Act of 1926. I refer to the matter in these strong terms only in order that there should be no misconception abut apologies in the future and about the practice in respect of the tendering of them, and in order that there should be no possible mistake about my meaning and attitude. Mere lip service to a formula without any contrition of heart will not do."
9. In two very recent cases Mujib-ur-Rahman Shami and another v. The State (PLD 1975 SC 484) and Taj Din and others v. The State (PLD 1975 SC 490), the contemners tendered apologies before the High Court after conviction and at about the time when their appeals were to be heard by the Supreme Court. It is noted at page 489 of the first mentioned report that the apologies tendered therein "had been accepted by the learned Judges of the High Court at an informal meeting as they were satisfied that the apologies had `been inspired by their (appellants') feelings of contrition and the anxiety to make amends for their past conduct'." After noticing that it was a matter of immense gratification to their Lordships (of the Supreme Court) that in the said case "the honour of the High Court has been fully vindicated upon the admissions of the appellants themselves, who are both educated and responsible persons . . . . . . .", it was further observed that they were happy that it was one of those unusual cases in which the contemners had themselves realised their own error and had the courage to admit the same and made sincere attempts to make amends. On account of the aforementioned development as also on their Lordships' satisfaction that the appellants before them were "sincere in expressing their remorse". a lenient view of the matter wag taken and the sentences ranging from for -to six months' R. I. And fine from Rs. 1,500 to Rs. 2,000 were reputed to the sentence of imprisonment already undergone. In the second case of Taj Din and others also, after noticing that the contemners, after their conviction and during the pendency of appeal before the supreme Court, tendered apology before the High Court,-- their Lordships m view of the fact that the appellants therein had thrown themselves at the mercy of the Court, while dismissing their appeal. Reduced the sentence to that already suffered. In yet another case of Fakhre Alam v. The State and another (PLD 1973 SC 525), in the circumstances thereof, it was observed that one of the appellants, "Yusaf Lodhi having admitted the authorship of the article and having tendered an unconditional apology which was appreciated by the High Court, all that was necessary was to accept the apology and discharge the rule." The reasons which had influenced the High Court in rejecting the apology were held to be untenable and it was observed that "if the total effect of an apology on the mind of the Court is that it is unconditional and sincere, then it can hardly be rejected on the technical ground that it does not specifically and separately refer to the various factors mentioned by this Court in certain judgments". This aspect in the case of Fakhre Alam is mentioned in the case of Mujib-ur-Rehman Shami and another as follows: "The case of Fakhre Alam stands on an entirely different footing. In that case the Court did find that the apology was unconditional and sincere and that it had been tendered at the earliest opportunity available, but it was not accepted by the High Court on account of some technical non-compliance with the requirements specified by this Court in some other cases."
10. The above analysis of the relevant case-law on the questions of apology, its acceptance and effect thereof as also the punishment in contempt cases supports the rule laid down in Yusaf Ali Khan's case (1972) that an .Apology, by itself, does not render the contempt committed excusable nor .Does if 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. It depends upon the circumstances of each case as to whether a particular apology is unqualified and is tendered with earnest desire to make amends. In order to find out whether a particular apology qualifies to be appreciated and accepted, the guidelines laid down by the Supreme Court in the case of A. K. M. A. Awal have to be kept in view. It has, however, not been laid down as an immutable rule that no other factors than those mentioned in the guidelines can be taken into account. The circumstances in which an apology is tendered make important difference in so far as its appreciation and effect is concerned. For example, in the cases of Mujib-ur-Rahman Shami and Taj Din, apologies tendered in the High Court, after conviction and at a very late stage when the appeals were to be heard in the Supreme Court, were appreciated by the High Court and taken note of by the Supreme Court.
They were, however, not thought sufficient to have entitled the contemners, as of right, for discharge. It may, be observed here that there is nothing in Article 204 of the Constitution, which confers power on the superior Courts to punish. For contempt, indicating that the Court has to act in a certain specified manner (only) on the tender of an apology ; nor, there is .Any such specification in any law or rule purporting to regulate this power. Even under section 3 of the Contempt of Courts Act, 1926 it has been left to the discretion of the Court whether, on an apology having been made to D the satisfaction of the Court, the contemner may be discharged or the punishment awarded may be remitted. In other words, it depends upon the circumstances of each case as to what :order would be appropriate if and when a satisfactory apology is made. Thus, there is nothing in the Constitution and/or the law to prevent the Court from dealing with the matter in its discretion in such a manner as to meet the ends of justice as -also to fulfil the purposes of law of contempt as contained in the Constitution.
11. In the present case, if the guidelines laid down in various authorities are kept in view, then it has to be observed that the apology, it appears, has been tendered by the accused contemner after appreciation by him that he had committed contempt. The manner in which he tendered the apology also shows that he, at long last, regretted having committed the contempt. We have already noticed that at one stage, when' it was pointed out to him that a statement which was placed before us did not fulfil the requirements of an unconditional apology, he straightway; made oral statement that he did not contest the facts and the case and that be wanted to tender unqualified apology. At a later stage also, when his learned counsel wanted an adjournment, the accused contemner stood up and spontaneously stated that he did not want an adjournment and than, without any further consultations with his counsel, be submitted a written statement which prima facie appeared unqualified and unconditional. All this shows that he not only appreciated that he had interfered with the administration of justice but also regretted it. When asked to explain certain phrases used in the written apology, he clarified that he had made an admission that the utterances made by him at Rawalpindi (which are the subject-matter of the charge) were "false, incorrect and wholly without foundation". This amounts to a clear confession on the above lines.
Taken together with the aforementioned analysis that he realized that he bad committed contempt, it (confession) would show that he had made full and humble submission to the authority of the Court. It is in this very context that be used the expression "1 . . . . . . Place myself completely in the merciful hands of this learned Court." The language used in the apology does not give any impression that it is any way conditional, nor does it show that any attempt at justification has been made.
12. It cannot be said that the apology has been tendered at the earliest possible stage nor can it be said that it was postponed till the fag end of the proceedings. No doubt, several hearings had taken place and the ac,-used contemner had taken up unjustified and irresponsible pleas in reply to the notice, yet it cannot be ignored that his counsel made a specific statement before the Beneb, which was to record the evidence, that he had been instructed by his client to withdraw all the applications and statements. Written. Or oral, made or filed in this Court. This statement was made before the evidence had started, therefore, it can neither be said to be an apology at the earliest possible stage nor at the fag end; and if the most recent precedents established in the cases of Mujib-ur-Rahman Shami and Tai DI are taken into account, the apology cannot be thrown out of consideration in the circumstances of this case, merely, because it was attended at the earliest available opportunity.
13. The question as to whether the apology and regrets are sincere and the assurance given in the written apology that the accused contemner shall be more careful in future is, in reality, a firm resolve never to repeat the offence, has presented some difficulty in the very peculiar circumstances of this case. It is abundantly clear that the accused contemner committed contempt of this Court with full awareness of the mischief. There is no doubt about the fact that he knew the law of contempt when he made the speech at the Rawalpindi Bar and joined issue with the members of his own profession when they tried to dissuade him from treading the wrong path.
Not only this, he also submitted two written statements in this Court, in answer to the notice, which do not at all show that he! Bad any intention of retracing his steps. In the second statement, he raised, to say the least, a scandalous plea. In these circumstances. Keeping in view his grounding in law particularly when he is a practising Advocate; we are not satisfied that the tender of apology is not with a view, merely, to save himself from punishment, which he might have realised could be; severe and deterrent. Looked at in this context, we are further not satisfied about the sincerity of the apology. For the same reasons we are not satisfied that the accused qontemner had made a firm resolve not to repeat the offence. The various stages through which the proceedings in this case passed afforded an opportunity to him to stop going any further on the path of harming this Court as also the entire judiciary of the country.. On the one hand it cannot be ignored that he must have realised even at the stage of inception of "the idea" that it was wrong in fact, law and morality and despite that, he pursued the same to some length; on the other, it has to be emphasized that such a strong determination to perpetuate the wrong must have been motivated by strong urges. While admitting that he had made "wrong and false" statements and that his utterances, were "wholly without foundation", he has not come out with the factors which motivated such scandalous act on his part. It cannot be imagined that ,he, like a rustic, did not realise the implications. Joked at in this light, we are not satisfied that if he can be swayed by a certain motive at one -time to scandalise the judiciary, he cannot again succumb to such a motive if it also happens to include some temptation. The assurance given by him in the written apology is no doubt unqualified but it promises only an attitude of "carefulness in future". In the above circumstances, we are not certain whether he has made a firm resolve, in addition to be careful in future, not to commit contempt of Court and harm the judiciary. Thus, while appreciating a very important aspect of the apology that it is uncondtioned and unqualified, we are not satisfied that it is sincere in the -context that it has not been made merely to avoid punishment and further that it has been made with a firm resolve not to repeat the offence.
14. In view of the confessed ingredients of the offence it is obvious that, but for the apology, the contempt is of such a type that very heavy punishment both of imprisonment and fine would have been fully justified. It is unquestionable that element of deterrence should not at all be ignored in awarding punishment for contempt of this type because it is necessary -to keep the scales of justice even and unruffled as also protected from side-winds ; but at the same time, for obvious reasons, when the dignity, of the Court is involved and is also to be maintained there should not at all be an impression, even if false, of a revengeful attitude. Thus, while not losing sight of the element of deterrence, the object of reform can also be kept in view. There is a chance that if the accused contemner is not sent to prison in this first case of contempt committed of this Court, he might with passage of time reform his attitude towards judiciary.
15. Historically speaking. The superior Courts have not hesitated and -would not hesitate in future in vindicating their authority by taking note of, and awarding proper punishment for their contempt in accordance with the Constitution and the law; but the clearly discernible self-imposed restraints in the measure of punishment have served the law and the Courts well in this field of administration of justice. The object of contempt proceedings is not the vindication of an individual Judge but to protect the Court and to maintain public confidence in its ability and power to administer justice. In this connection, it cannot be ignored that by `equiponderance oppression, meaning unjust and unequal burden. Is removed'. It would not be proper, therefore, to award such a punishment in this matter which, in addition to being awe-inspiring, may give the appearance of harshness and roughness. We are not unmindful of the rule of Islamic jurisprudence relied upon by the Supreme Court in the case of A. K. M. A. Awal that "to him who repents after his transgression and makes amends, mercy will be shown." But as discussed above, we are not satisfied that the repentance in this case in fact amounts to irrevocable tauba as found in the case of Mujib-ur-Rahman Shami.
Still, in the manner of punishment, we have decided to show mercy and make such order' which,, while being awe-inspiring, would not give appearance of roughness or even :harshness as against equanimity and firmness.
16. While giving finding of guilty against and convicting the accuse contemner of contempt of this Court, but taking note of his assurance, we, for the time being, would postpone the punishment for a period of two years with the condition that he would submit a bond in heavy amount with a surety giving an undertaking that he would not commit contempt of any Court nor would abet this offence and would remain of good behaviour in this respect. In case he disregards the condition during the specified period, he would be called upon to receive punishment.
17. This course is not new or unusual in the history of law of contempt which, in this behalf, was referred to in a recent case of The State v. Muhammad Ashraf Zahid (PLD 1975 Lah. 635). This form of dealing with offences and offenders is found in the principle underlying the provisions (since repealed) contained in section 562, Cr. P. C., and re-enacted in sections 4 and 5 of the Probation of Offenders Ordinance, 1960. It is not necessary to make any detailed discussion as to whether the Contempt of Courts Act. 1926 can limit the powers of the superior Courts conferred by Article 204 of the Constitu--tion and assuming, for the sake of argument, that this case is also covered by the said Act, it would be noted that on the principle underlying section 562, Cr. P. C. And sections 4 and 5 of the Probation of Offenders Ordinance, such a course would be available to this Court for dealing with this case. There is ample authority for the proposition that this principle (contained in section 562, Cr. P. C., before its repeal and after the amendment of 1923) applied to offences under all laws (except sub--section (1-A) thereof which applied only to the offences under the Penal Code) : See Akhtar Munir v. Emperor (AIR 1937 Pesh. 51) ; Emperor v. Chhotan Hosmat Ali (AIR 1935 Bom. 188) ; Emperor v. Faiz Talib (AIR 1926 Lah. 317 ) and The Crown v. Piara Singh (I L R 7 Lah. 32). In some of these cases, after a finding that the course provided in section 562 could be adopted for offences under all laws including special and local laws in addition to those under the then Indian Penal Code, on merits it was thought not advisable to adopt the same. For example, in the Peshawar case, which related to a conviction under the Arms Act, it was. Held (at page 51, Col. 2 of the report) that "in the present case section 562,. Cr. P. C., was not illegally applied and the order passed by the trial Magistrate was within his discretionary powers". In the Bombay case, it was held that subsection (1) of section 562 was expressed in general language. It applied to persons convicted of offences punishable with imprisonment for not more than a certain period and that the said subsection unlike subsection (1-A), which only applied in the case of convictions under particular sections of the Penal Code, covered the case of a conviction under any law. In-.The first mentioned Lahore case, it was held that although after the amendment of the Code in 1923.
Section 562 was no longer confined to offences under the Indian Penal Code but extended also to offences under all laws, still in an offence under section 61 of the Punjab Excise Act, it was thought proper not to resort to this course. Because, such an offence, it was further visualised, is not usually the "first offence". The second mentioned Lahore case is to the same effect. Provisions contained in sections 4 and 5 of the Probation of Offenders Ordinance, 1960 are, for all practical purposes, re- enactment of the repealed section 562, Cr. P. C. The ,question whether that law (section 4) can be invoked while dealing with a case of contempt was considered in the afore noted case of Muhammad Ashraf Zahid (Para. 22 of the report). This all would be relevant only if' a situation is visualised where it is canvassed (which has not been done in this case) that, while punishing contempt under Article 204 of the Constitution, the High Court cannot adopt the afore-determined course of postponing the punishment and placing the contemner under condition of receiving the punishment in case of repetition of offence.
18. As to binding the contemner through a bond, almost all analogous-- laws requiring a person to abide by certain conditions in matter of criminal breach of law, contain mandatory provisions for binding the person concerned through bond/s. The two laws most relevant in the present context- one, repealed section 562, Cr. P. C., and two, sections 4 and 5 of the Probation of Offenders Ordinance, 1960 do make such provisions. For example, in proviso to section 5, the mandatory provision is in strong negative, namely, that the Court shall not pass a probation order unless the offender eaters into a bond, with or without sureties, to commit no offence and to keep the peace and be of good behaviour during the period of the bond and to appear and receive sentence if called upon to do so during that period Similarly, an order can lie passed, under section 4, of conditional discharge against a convicted person subject to "the condition that he enters into a bond, with or without sureties". For obvious salutary reasons, bonds and sureties act as counter check against temptation for repetition. .In the commentaries on the. Code of Criminal Procedure by Chitaley and Annaji Rao, the provision in section 562 relating to release on entering into bond has been commented upon (at page 3000, Vol. III, 1946 Edn.) as follows:- "As has been seen already, it is only after the conviction of an offender for an offence ape citied in subsection (1), and provided the other provisions apply, that such offender may be released. But unlike the release on a mere admonition under subsection (1-A) the release under this subsection is to be directed only after the offender enters into a bond. It is the duty of the Court to see that an order of release passed and the bond executed in consequence thereof comply strictly with the requirements of the section."
19. In view of the fact that the contemner has in unmistakable and unequivocal terms admitted that he made "false incorrect and wholly without foundation statements", the bona fides of the complainant were established. We, therefore, decided to award costs to him to be paid by the contemner. Similarly, if the accused contemner would not have delayed the making of the apology and confession, the appearance of Mr. M. Anwar) as amicus curiae and Mr. Zafar Mahmood, President of the Rawalpindi Bar Association, would have been obviated. We have, therefore, directed that the contemner shall pay costs to them as well. Practice of award of cross in contempt cases finds support from Parashuram Detaram Sham--dasani v. Emperor (AIR 1945 P C 134) ; The State v. Sayyad Habib (I L R 6 Lah. 528); and Emperor v Marmaduke Ptcktholl (AIR 1923 Bom. 242); See also, Halsbury's Laws of England, Third Edn Vol. 8, page 42, para. 72.
20. The above are the reasons for the following order which we passed in this case on 13-11-1975 :- "For reasons to be recorded later, we have after careful consideration reached the conclusion and give verdict that Mr. Shaukat Ali com--mitted contempt of this Court in his speech made in the Bar Association. Rawalpindi, on the 25th of July 1975, and hold him guilty. We convict him accordingly.
(2) He not only tendered unqualified apology and threw himself at the mercy of the Court, but has also confessed having made 'false, incorrect and wholly without foundation' statements in the said speech While taking note of his undertaking not to indulge in any such, activity in future, we, for the time being, postpone for a period of two years, the punishment, and direct :-
(i) that he shall submit within one week a bond in the sum of Rs. 20,000.00 with one surety in the like amount to the satisfaction of ,the Deputy Registrar (Judicial) of this Court, undertaking that in future he will not commit contempt of any Court nor will abet the same in any manner whatsoever .And will remain of good behaviour in this respect ;
(ii) that in case of disregard of the foregoing condition during this period, he will be called upon to receive punishment ; and
(iii) that the Advocate-General, Punjab, and the Registrar of this Court shall report any contravention of the said condition/bond. Information may also be laid by any other person.
(3) In view of the unmistakable and unequivocal statement made by Mr. Shaukat Ali that he has made `false, incorrect and wholly without foundation' statements, the bona fides of Mr. Habibul Wahhab El-Kheiri, complainant, in laying information before this Court, are -established and in view of the further fact that he had been attending and assisting the Court, we award costs of Rs.
2,000.00 to be paid by Mr. Shaukat Ali to him. We also note that but for the late making .Of the aforementioned apology and confession, the appearance of Mr. M. Anwar as amicus curiae and Mr. Zafar Mahmood, President ,of the Rawalpindi Bar Association, two eminent lawyers, would have been obviated. We, therefore, direct that Mr. Shaukat Ali shall pay Rs. 3,000.00 to the former and Rs.
2,000.00 to the latter as their costs. The costs to be deposited in Court within fifteen days."
"Mr. Shaukat Ali prays that he may be given one month's time for payment of costs. The prayer is granted."