' K. E. CRAUHAN, J.-Yusuf All Khan was convicted by this Court on 30-6-1975 in two cases, viz., (I) Crl.
Orig. No, 70-W/1975 and (ii) Crl. Orig. No, 84-W/1975 for having committed contempt of the Court. In the first case he was sentenced to three months' simple imprisonment and a fine of Rs, 2,000 failing which he was to undergo a further imprisonment of two months. In the second case also he was given the same punishment and it was ordered that both the sentences were to run consecutively.
2. On 1-7.1975 Yusuf All Khan filed C. M. 3170/75 and C. M. 3171/75 in the aforesaid two cases under proviso to section 3 of the Contempt of Courts Act XII of 1926 tendering apology and praying for discharging the notice of contempt or for remission of the sentences. Yusuf Ali Khan did not personally appear and on 2-7-1975, when these applications came up before the Court, therefore, the same were dismissed with the observation that the apology tendered in those circumstances was also not unconditional.
3. Yusuf All Khan has filed appeals against the judgments dated 30-6-1975 in the Supreme Court of Pakistan, which are still pending.
4. On 24-1-1977 Yusuf All Khan has now filed two applications being C. M. No, 351/1977 (in Crl. Orig.
No, 70-W/1975) and C. M. No, 352/ 1977 (in Crl. Orig. No, 84-W/1975) under proviso to section 4 of the Contempt of Courts Act LXIV of 1976 tendering unqualified and unconditional apology. He appeared in person and made the following statement in open Court : "I have tendered apology in writing which is before this Court today. It is self-explanatory. In addition to what I have written in the apology, I want to state that I have presented myself before this Court in clear heart and clear chest. My apology is absolutely sincere without any reservation. I feel really sorry for all that happened. I place myself at the mercy of the Court and promise to be careful in future. I can assure this Court that such a thing will never happen in future. I am really sorry that I did not present myself in person on the last occasion when I had tendered the apology.
According to rue, I was under the impression that personal appearance in such matters at those junctures was not necessary and rather this was the legal advice given to me. I withdraw all the accusations which were the subject of contempt in the cases. Those accusations were all incorrect.
I really repent on my action."
' We have attended to the matter and asked Yusuf Ali Khan to show to us whether we could accept an apology at this juncture when the matter was pending in appeals before the Supreme Court.
Yusuf All Khan referred us to S. Israr Hussain v. The Crown (1) where at page 329 it was written that "an unconditional apology on behalf of the appellant was tendered before us by Mr. Rizvi. An apology in contempt cases can be a mitigating circumstance only if the contemner surrenders himself unconditionally to the judgment of the Court and an apology after every conceivable defence has been taken, adjudicated upon and repelled and an appeal to this Court
(1) PLD 1954 FC 313 has failed can hardly be considered to be genuine or received with sympathy. The appellant has to apologise not before us but before the Court which he attempted to harm, whose authority he attempted to lower, and which convicted and sentenced him because that Court though functus officio in the matter of conviction can still accept the apology and remit the punish. Ment under the Act of 1926". This was reiterated by the Supreme Court in Yusuf All Khan's own case reported in Yusuf All Khan v. The State (1) where at page 515 it was observed that "it is, therefore, open to the High Court to remit or reduce this punishment if it so considers fit. As was pointed out by this Court in the case of Israr Hussain, the fact that. Toe High Court has become functus officio in the matter of conviction for contempt does not debar it from still remitting the punishment". It may be pointed out that the latest Contempt of Court Act LXIV of 1976 has also brought about a change in this respect. In Proviso to section 4 of this Act it is written that "provided that, on being satisfied that the accused, whether after defending himself or without offering any defence, has purged himself of the contempt of Court, the Court may discharge the accused or remit his sentence". Earlier in Act XII/1926 this proviso as contained in the corresponding section 3 stated that "provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court". The change in this law also supports the plea advanced by Yusuf Ali Khan. We are, therefore, of the opinion on the high authority of the precedent cases and the new enactment that A the power to remit sentences still inheres and continues in this Court.
5. Coming to the apology itself, we may observe that this Court has never shown any vindictiveness in the matter of contempt and it has always taken due notice of sincere apologies. In the present apology Yusuf Ali Khan has made clean breast of himself. He has accepted that his utterances were all incorrect and he is really sorry for all that happened. He has promised to be careful in future. The statement which he made in open Court has been reproduced in extenso. He has explained therein as to why he did not appear in Court in person earlier and has submitted that, under a legal advice, he formed an opinion that probably personal appearance was not necessary for acceptance of an apology. We have no reason to disbelieve him on this point. Yusuf Ali Khan is a Barrister and an Advocate of some standing. On our part we feel no grudge to be kind to him if he has promised that such a thing will never happen in future. In these circumstances, we think that the interest of justice will be served and the dignity of this Court will be more enhanced if the apology is accepted Accepting the apology we remit the sentences and fine of Yusuf All Khan in both the cases hereinbefore mentioned.
(1) PLD 1971 SC 508