The applicant Agha Siraj Khan Durrani being aggrieved and dissatisfied with the judgment/order of the learned Special Judge (Central)-II, Karachi, dated 28-8-1999, whereby he convicted the applicant under section 228 P.P.0 and sentenced him to pay fine of Rs,5 or in default of payment of fine to suffer simple imprisonment for one day.
2. The learned State Counsel was called absent. On the last date of hearing Mr. Mubarak Hussain Siddiqui, the learned Deputy Attorney General appeared on behalf of the State and upon his request the matter was adjourned and date of his choice was given but it appears that today he has chosen to remain absent and none appeared on behalf of the State.
3. I have heard the learned counsel for the applicant and perused the record and proceedings.
4. The learned counsel for the applicant at the very outset stated. That the present appeal be converted into revision as the important points of law are involved therein.
5. Keeping in view the observations laid down in the cases of Rustam Aumia Bhuiya v. The State, reported in PLD 1957 Dacca 467 (DB) and Rehman Gul v. The State, PLD 1971 Pesh. 1, (DB) this appeal is converted into revision application.
6. The brief facts as disclosed in the memo. Of application are that the applicant Agha Siraj Khan Durrani is a law graduate. He is working as an apprentice with Agha Saifuddin, Bar-at-law since last six months. On 28-8-19 9 a case titled State v. Asif Ali Zardari and others was fixed before the learned Special Judge (central)-H, Karachi for hearing. The senior of applicant, namely, Mr. Agha Saifuddin, Bar-at-Law was appearing in that case as one of the lawyers on behalf of Asif Ali Zardari.
The applicant was present in the Court alongwith his abovenamed Senior. The case was adjourned to 10-9-1999. Thereafter another case titled State v. Muhammad Usman Farooqui was taken up by the trial Court when all of a sudden bell of mobile phone of applicant rang in the Court room. The learned trial Judge enquired as to who was carrying the mobile phone. The applicant immediately stood up and tendered apology. He informed the Presiding Officer of the Court that he was under bona fide impression that switch of mobile phone was off. The learned judge, however, expressed that mobile phone ring caused interruption in the judicial proceedings and he immediately recorded the conviction and sentence as stated hereinabove.
7. The perusal of the record and proceedings shows that on 28-8-1999 while the learned Judge was dictating the case diary in case No,1 of 1998 through his typist, the bell of mobile phone rang. The operative part of the said case diary is reproduced herein below for ready reference:- "At this stage the bell of mobile phone gave ring so loudly which actually caused interruption in the judicial proceedings. Agha Siraj Durrani has taken apology from the Court and admitted his guilt, hereinfore taking lenient, view convict him under section 228, P.P.C. And sentence him to pay a fine of Rs,5 (Five) and in default thereof to suffer S.1 for one day. Charge and plea of guilt of Agha Siraj Durrani as Exh.29.
Order as Exh.30.
Agha Siraj Durrani paid the fine of Rs,5 vide receipt No,676."
8. It is further borne out from the record that statement of applicant was recorded by the learned trail Judge. It will be pertinent to reproduce the same hereunder in extenso for the sake of convenience:-- "Name: Agha Siraj Durrani Father: Agha ...Durrani Age: 45 years Occupation: Vakalat Residence: House 48, 14...
Q. It is alleged that when I was sitting in judicial proceedings, the bell of mobile phone gave ring loudly which caused interruption in judicial proceedings which amounts to contempt of Court.
A. I take apology. Q. What have....
A. I again take apology. I would not repeat it again.
(Sd.) Senior Special Judge. 28-8-1999."
"I was under the impression that phone was closed. (Sd.) 28-8-1999"
9. From the perusal of the above statement, it appears that question put by the trial Court and reply thereto given by the applicant and applicant's note thereon were termed as admission of guilt and following impugned order (Exh.30) was passed. The same is reproduced hereinunder in toto.
"28-8-1999
(1) When I was sitting in judicial proceedings in the above case, the bell of mobile phone gave ring so loudly which actually caused interruption in the judicial proceedings. However he (Agha Siraj Durrani) has admitted his guilt. He stated that he is a law Graduate. Mr. Justice (Retd.) Agha Saifuddin who was already present in the Court also disclosed that he is also Junior to him which implies that he being a law knowing person was supposed to know that he should not have brought such a mobile phone which may cause interruption at any stage during course of Court proceedings. However he has taken apology from the Court, I, therefore, taking a lenient view convict him under section 228, P.P.C. And sentence him to pay a fine of Rs,5 and in default thereof to suffer S.I, for one day.
10. The perusal of the order reproduced hereinabove shows that conviction was recorded under section 228, P.P.C.
11. It will be pertinent to reproduce hereinunder proviso (b) to section 195(1), Cr.P.C.
"Prosecution for certain offences against public justice:
(a) ................................................
(b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.
(c) .................................................................. " (Underlining is mine)
12. The bare reading of above provision of Law shows that if any offence under section 228, P.P.C.
Was only committed, the proceedings A could be initiated upon the 'complaint' in writing filed by such Court or of some other Court to which such Court is subordinate.
13. The complaint is defined under section 4(h) Cr.P.C. The same is reproduced hereinunder:-- "S.4(h) Complaint. --- 'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a Police Officer."
14. The offence of contempt of Court is punishable under section 228, P.P.C. The Law Reforms Ordinance, 1972 subsequently, brought drastic change in law and introduce amendments in sections 476 and 476-A, Cr.P.C. According to these amendments the punishment for contempt was enhanced.
15. The aforesaid provision of law envisages that Court is competent to file the complaint for offence under section 228, P.P.C. Or proceed summarily as laid down in Chapter XXII, Cr.P.C.
16. It will also be pertinent to reproduce hereinunder sections 480 and 481 Cr . P. C .
"S.480, Cr.P.C. Procedure in certain cases of contempt.- (1) When any such offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Pakistan Penal Code is committed in the view or presence of any Civil, Criminal or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if, it thinks fit, take cognizance of the offence and sentence the offender to fine, not exceeding two hundred rupees, and, in default of payment, to simple imprisonment of a term which may extend to one month, unless such fine be sooner paid. Section 481 - Record in Such Cases.-- (1) In every such case the Court shall record the facts constituting the offence, with statement (if any) made by the offender, as well as the finding and sentence. (2) If the offence is under section 228 of the Pakistan Penal Code, the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult."
17. The bare perusal of above provisions of law shows that after following the procedure prescribed under section 481 Cr.P.C. The contemner can be convicted under section 228 P.P.C. By the trial Court to the extent - mentioned in Section 480 Cr.P.C.
18. The section 482, Cr.P.C. Postulates that if the Court in any case considers that a contemner should be awarded punishment more, then the punishment prescribed under section 480, Cr.P.C.
Can after following the procedure laid down under section 481, Cr.P.C., as stated hereinabove, and after recording reason thereof, it may forward the case to a Magistrate having jurisdiction to try the same and may require security for the appearance of such accused before such Magistrate. In case of failure, Magistrate has to forward such accused in custody to such Magistrate.
19. Thus, it is crystal clear that the trial Court in case of direct contempt has an option to proceed either under section 480 Cr.P.C. Or under section 476, Cr.P.C. Therefore, the contention that in each and every case complaint is to be lodged by the Court under section 228, P.P.C. Is devoid of force.
20. Now, I will advert to the facts and circumstances of the present case in order to find if any offence under section 228, P.P.C. Was committed by the applicant. It will be essential to reproduce hereunder section 228, P.P.C. For ready reference:-- "S.228, P.P.C.-- Intentional insult or interruption to public servant sitting in judicial proceeding.
Whoever intentionally offers any insult or causes any interruption to any public servant, while such public a servant is sitting in any stage of a judicial proceedings, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." (underlining is mine)."
21. The plain reading of the above section shows that for constituting an offence under section 228, P.P.C. Mens rea/intention to offer any insult or to cause any interruption are necessary ingredients.
The point for determination would be, whether the act of the accused amounted to intentional insult and/or interruption to public servant while such public servant was sitting in any stage of a judicial proceeding.
22. It is well-settled that the entire set of circumstances associated with an act of attempt will have to be scanned and scrutinised before it can be held and determined that a contemner has actually contravened the law of the contempt of Court. The test in determination of contempt is whether the act amounts to some interference with course of justice and administration or whether it has a tendency to cause such an interference. Consequently, no hard and fast rule or provision of law could be laid down on the subject. For an act of contempt can adopt multiplicity of ways and methods, both crude or subtle, which baffle all attempts to enumerate or classify all of them.
23. In the American Encyclopaedia of Law and Procedure, the contempts are classified in four categories i,e, direct, constructive, criminal and civil:--
(a) A direct contempt is open insult in the presence of the Court to the person of the presiding judge, or defiance in his presence to his powers or authority.
(b) A constructive contempt is an act done in the presence of the Court but at a distance which tends to be little, to degrade or to obstruct, interrupt, prevent, or embarrass the administration of justice.
(c) A criminal contempt is conduct that is directed against the dignity and authority of the Court.
Acts punishable as criminal contempts are in the nature of crimes, in that they involve the idea of punishment as a penalty for the commission of the unauthorised act.
(d) A civil contempt consists in failing to do something ordered to be done by a Court in a criminal action for the benefit of the opposing party therein.
24. In Salmond on Jurisprudence, 12th Edition, by P.J. Fitz Gerald, published by Sweet and Maxwell, London, the mens rea, intention and motive are defined as under:-- "88 Mens rea--- We have seen that the conditions of penal liability are sufficiently indicated by the maxim, Actus non facit reum, nisi mens sit rea. A man is responsible, not for his acts in themselves, but for his acts coupled with the mens rea or guilty mind with which he does them. Before imposing punishment, the law must be satisfied of two things: first that an act has been done which by reason of its harmful tendencies or results is fit to be repressed by way of penal discourse; and secondly, that the n ental attitude of the doer towards his deed was such as to render punishment effective as a deterrent for the future, and, therefore, just. The form which mens rea assumes will depend on the provisions of the particular legal system. Criminal liability may require the wrongful act to be done intentionally or with some further wrongful purpose in mind, or it may suffice that it was done recklessly; and in each case the mental attitude of the doer is such as to make punishment effective."
"89 Intention--- An intention is the purpose or design with which an act is done. This may consist of an intention to perform some further act, an intention to bring about certain consequences or perhaps merely an intention to do the act itself."
"An unintentional act is one lacking such purpose or design. To do something unintentionally is to do it without meaning to do it."
"Whether an act is to be termed intentional or unintentional must depend partly on the description of the act itself."
"Whether the intention consists of an intention to produce certain consequences, this is sometimes explained as a combination of foresight and desire."
'Where a consequence is expected, it is usually intended but this need not be the case. An operating surgeon may know very well that his patient will probably die of the operation; yet he does not intend the fatal consequence which he expects. He intends the recovery which he hopes for but does not expect."
"Finally intention is not identical with desire. I may desire something with all my heart, but unless I do something by way of aiming at it I cannot be said to intend it. Conversely I can be said to intend something without desiring it. A thing may be intended, not for its own sake but merely as the means to an end. Here the end is intended and desired, while the means, though intended may perhaps not be desired; indeed it may be utterly indifferent to me or even undesired. If I kill a man in order to rob him, it may be that I do not desire his death but would much prefer to be able to achieve my objective in some other way. The doctor who inflicts pain to test for pain perception will not normally have an actual desire to inflict pain but will on the contrary regret the necessity of it."
"This, however, does not apply to cases involving mere knowledge of statistical probability where there is no certainty in the concrete instance."
"90. Motives--- A wrongful act is seldom intended and desired for its own sake. The wrongdoer has in view some ulterior object which he desires to obtain by means of it. The evil which he does to another, he does and desires only for the sake of some resulting good which he will obtain for himself. The desire for this good is the motive of his act. Motives, though closely related and similar to intentions, differ from intentions in certain respects. First, an intention relates to the immediate objectives of an act, while a motive relates to the object or series of objects for the sake of which the act is done."
"The point of asking what a man intends is to find out what personal advantage he is seeking to gain; and a motiveless act is one aimed at no such personal advantage."
"The phrase "with intent to", or its equivalents, may mean any one of at least four different things.--
(1) That the intent referred to must be the sole or exclusive intent; (2) that it is sufficient if it is one of several concurrent intents; (3) that it must be the chief or dominant intent, any other being subordinate or incidental; (4) that it must be a determining intent, that is to say, an intent in the absence of which the act would not have been done, the remaining purposes being insufficient motives by themselves. It is a question of construction which of those meanings is the true one in the particular case."
25. The mens rea is requisite in order to constitute the offences of contempt of Court. It is present in the deliberate doing of an act, which the contemner knows, he is forbidden to do. If he did not know that he was forbidden to do so, there would be no mens rea in his doing the said act. If the act was done accidentally, then also there is not mens rea. The dictum "wilful disobedience" means that the act was wilfully and deliberately committed with a particular motive i,e, criminal intention or motive.
26. The 'obstruction' to the free flow of justice is known in legal phraseology. As "contempt" and it has nothing to do with the personal feelings of the judge.
27. The object of the discipline enforced by Court in case of contempt is not to vindicate the dignity of the Judge in person, but to prevent undue interference with the administration of justice or the doing of an act the tendency of which is to deprive the Court of an unfettered course with a view to dispense even-handed and impartial justice in accordance with law.
28. In Mc. Leod's v. St. Aubyn, reported in 1899 A.C. At page 549, Privy Council has observed as under:-- "The power of punishing for the contempt is not to be used for the vindication of the Judge as a person. It is a weapon to be used sparingly, and always with reference to the interests of administration of justice."
29. In the case of Subramanyan reported in 1943 Lah. 1329, Full Bench observed that:-- "It should be noted that contempt of Court proceedings are summary and a very arbitrary method of dealing with an offence. That being so, contempt proceedings should be sparingly instituted and a person should not be convicted unless his conviction is essential in the interests of justice. There must be substantial contempt, that is something which tends in a substantial manner to interfere with the course of justice, or to prejudice the public against one of the parties to a proceeding."
30. The Oswa ld (3rd Edition) at p.43 has said that "general criticism on the conduct of Judge not calculated to obstruct or interfere with the course of justice or the due administration of the law in any particular case, even though libelous did not constitute a contempt of Court."
31. The perusal of the case diary, dated 28-8-1999, coupled with the statement of accused and the impugned order clearly shows that the requisite intention to commit contempt is lacking in the present case. The applicant did not commit any act so as to cause the interruption of judicial proceedings wilfully or deliberately. He did not phone anybody. He accidentally did not switch off the mobile phone and all of a sudden because of an incoming call bell of mobile phone rang. The appellant repented for what happened and he tendered apology. In spite of repeated apologies he was convicted and sentenced stated as above.
32. In the case of Iqbal Hussain Kazi v. The State, reported in 1969 PCr.LJ 627, it was observed that the Courts should not be unduly sensitive or touchy about their dignity. It was further observed that a mere audible remarks not meant for the Court should not be taken as an interference or interruption in Court work while sitting in any stage of judicial prbceedings.
33. In the case of the State v. Abdul Latif reported in PLD'1961 (W.P.) Lah. 51, the Full Bench observed that the mere fact that an act of a person has annoyed a Judge cannot make it contempt of Court.
34. In arriving to this decision, I am also fortified by the authoritative decision of this Court in the case of Ghulam Shabbir v. The State, reported in 1991 MLD 487, authored by my lord (as he then was) Late Mr. Justice Qaiser Ahmed Hamidi J.
35. The upshot of the above discussion is that no offence of contempt o Court under section 228, P.P.C. Was committed by the applicant/accused. This revision is, therefore, allowed. The conviction and sentence awarded to the applicant by the Court below is set-aside. The fine paid by applicant be remitted back to him.