1. IRSHAD HASAN KHAN, C.J.- This appeal arises out of an application moved by Sahid Orakzai, praying for initiating de novo proceedings in respect of acts of rowdyism in the Supreme Court building on the ground that the Bench which conducted the trial was not properly constituted as it was not headed by a Chief Justice. It also challenges the judgment dated 14.5.1999, passed by a three- member Bench of this Court, whereby the learned Bench acquitted the respondents/contemners before it on the ground that the allegations against them of committing contempt of this Court by raising slogans against the then Hon'ble Chief Justice and the Judiciary, was not proved beyond doubt.
2. Brief facts are that on 28th November, 1997, a mob comprising people hailing from different areas of the country, who were allegedly workers of Pakistan Muslim League (N) including some MNAs and MPAs of the ruling party, stormed the Supreme Court Building, Islamabad during Court proceedings and having forced their entry into the Court premises, raised slogans against the then learned Chief Justice of Pakistan.
3. Vide our Short Order dated 28.9.2000, we disposed of the appeal in the following terms: "For detailed reasons to be recorded later, we intend to dispose of Criminal Appeal No. 162 of 1999 through this Short Order. The appellant had sought initiation of contempt proceedings de novo in respect of an incident of rowdyism which had taken place on 28.11,1997 in the Supreme Court premises.
2. "2. A Bench of this Court vide order dated 14.6.1999 observed that in view of the Full Bench judgment in Muhammad Ikram Ch. V. Federation of Pakistan (PLD 1998 SC 103) + (PSC 1998 SC (Pak) 340), the judgment rendered by a Bench of this Court on 14.5.1999 in the contempt case could not be reviewed through a criminal original application tiled by Mr. Shahid Orakzai on the grounds mentioned in the application. However, the application was converted into appeal and notices were issued to the alleged contemners as well as Pakistan Muslim League (N) (hereinafter referred to as PML (N) thorough Mian Muhammad Nawaz Sharif, its President, respondent No. 1 and Chief Commissioner, Islamabad. Notice was also issued to the learned Attorney General to assist the Court.
3. "3. The preliminary objection, raised by Mr. Muhammad Ali Sayeed, learned Senior ASC for respondent No. 1, as to the maintainability of Appeal against an order of acquittal is of no consequence in the facts and circumstances of this case, in that, the impugned decision is based on the erroneous assumption that contempt proceedings being criminal proceedings should be conducted in the same manner as other criminal proceedings and the rules of such criminal proceedings should also apply. This Court has repeatedly held that contempt proceedings are' sui generis in nature, partaking of some of the elements of both civil and criminal proceedings but constituting neither. Clearly, there is no fixed formula for contempt proceedings and that technical accuracies are not required not this Court is bound by the provisions of the Code of Criminal Procedure or by the technicalities of ordinary criminal proceedings. Refer Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823 at 878-B) + (KLR 1998 SC (Pak) 1); Saadat Khialy v. The State (PLD 1962 SC 457 at 463-H); Qadiruddin v. Ghulam Yaqoob Bandey (1977 SCMR 477 at 478-A); Muhammad Ibrahim v. Syed Ahmad (PLD 2000 SC 71); The State v. Mujibur Rehman Shami (PLD 1973 Lahore 1) and State v. Abdur Rashid Tarkabagish (PLD 1959 Dacca 252 at 254-A). This circumstance alone warrants re- examination/suo motu review of the evidence on record.
4. "4. It would be advantageous to refer to the relevant portion of- the order-sheet dated 28.11.1997 in Criminal Original Petitions Nos. 29 and 32 of 1997 and Constitutional Petitions Nos. 27, 31 and 32 of 1997, which reads thus: "While the proceedings were in progress, one of the contemners came forward and whispered something in the ear of Mr. S.M. Zafar. Mr. S.M. Zafar told him that since he was not his Advocate he could not make request on his behalf. Meanwhile, Raja Muhammad Akram got-up and came to the rostrum and stated that he was representing Khawaja Muhammad Asif and requested for leave of his client's absence on the ground that he had to attend some very important work. He was allowed to go. A little later a big commotion was heard as if there was riot outside the Court room and slogans were being raised. It appeared that a big mob wanted to rush into the Court room. In fact a few persons did succeed in doing so and one of them informed , that the Judges should rise and go away as fully charged mob behind him was forcing entry into the Court room to take the Chief Justice into custody. This fact was supported by the persistent commotion and high-pitched slogans of the persons who were in the process of raiding the Court room. In such circumstances there was no other alternative for the Court, but to adjourn the proceedings and the Judges rose from the Court room and retired. Even outside there was flurry of activities as the people were running here and there and some policemen' escorted the Judges to the Chamber of the Chief Justice."
5. "Three of us (Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Munir A. Sheikh, JJ) are also signatures to the above order.
6. "5. Our learned brother Abdur Rehman Khan, J. In his inquiry report dated 18.2.1998, inter alia observed:
(i) "As the action of those individuals who forced their entry into the Court premises and raised slogans against the judiciary prima facie amounts to gross contempt Of this Court... The Hon'ble Chief Justice may constitute a Bench of the Court to initiate contempt proceedings for the outrageous incident of 28.11.1997........... Once the concerned persons are identified, the Court can then issue notice to them and then take further action under Article 204 of the Constitution and the applicable law........ "'
7. "6. The then Chief Justice constituted a three-member Bench to identify the persons involved in the said incident and to initiate contempt proceedings as recommended in paragraph C (i) of the inquiry report. Notices were accordingly issued.
7. In view of the material on record including the video Cassettes the three-member Bench of this Court was of the view that the following persons were prima facie involved in or had aided or abetted or facilitated the acts of rowdyism:-
(1) MNA Tariq Aziz
(2) MNA Mian Muhammad Munir
(3) MPA Ch. Tanwir Ahmed Khan
(4) MPA Akhtar Rasool
(5) Shahbaz Goshi
(6) Mushtaq Ali Tahir Kheli
(7) Akhtar Mahmood.
(8) MPA Sardar Muhammad Naseem Khan
(9) Babar Awan, MSF Divisional President
(10) Ali Abbas, General Secretary, Labour Wing, Rawalpindi.
(11) Anjum Iqbal, Rawalpindi.
(12) Muhammad Faruq, Divisional General Secretary, Youth Wing, Rawalpindi.
(13) Muhammad Naseem, Joint Secretary, MSF Labour Wing, Rawalpindi.
(14) Tanvir Akhtar, General Secretary, Muslim League Youth Wing, Rawalpindi.
(15) Raja Zafar Iqbal, Joint Secretary, Muslim League Labour Wing, Rawalpindi.
(16) Malik Muhammad Munawar, General Secretary, Muslim League, Rawalpindi.
(17) Tariq Saleem Lone, IGP, Islamabad.
(18) Altaf Hussain, SSP, Islamabad.
(19) Bashir Ahmad Nasir, ASP, Islamabad.
(20) DSP Liaqat Ali.
(21) DSP Muhammad Ashiq Farooqui.
(22) Inspector Jamil' Ahmad Hashmi (SHO PS. Sectt), Islamabad.
(23) Inspector Mussarrat Khan (SHO Bharakau)
(24) Abid Ali (ADC General and Acting DC)
(25) Muhammad Ali, Assistant Commissioner,
(26) iftikhar Ali Shalwani, Assistant Commissioner.
8. Note: (Persons at Nos. 9 to 16 are also accused in Crime No. 229/97 of P.S. Secretariat, Islamabad.)
9. "8. In consequence, the learned Bench vide its order dated 3.7,. 1998 directed issuance of show- cause notices to the above 26 persons calling upon them to explain the reasons why action ' should not be taken against them Tor committing contempt of this Court.
10. "9. After receiving replies from all concerned and apologies tendered by some of the respondents and hearing the arguments of the respondents as also the learned Deputy Attorney General the learned Bench on 1.3.1998 passed the following order;:-
(a) "Further proceedings against the following respondents are postponed till the decision of the Criminal case (FIR No. 229/97, dated 28.11.1997 of P.S. Secretariat, Islamabad):--
(1) Babar Awan, MSF Divisional President.
(2) Ali Abbas, General Secretary, Labour Wing, Rawalpindi.
(3) Anjum Iqbal, Rawalpindi.
(4) Muhammad Faruq, Divisional General Secretary, Youth Wing, Rawalpindi.
(5) Muhammad Naseem, Joint Secretary, MSF Labour Wing, Rawalpindi.
(6) Tanvir Akhtar, General Secretary, Muslim League Youth Wing, Rawalpindi:
(7) Raja Zafar Iqbal, Joint Secretary, Muslim League Labour Wing, Rawalpindi.
(8) Malik Muhammad Munawar, General Secretary, Muslim League, Rawalpindi.
11. (These respondents are respondents Nos. 9 to 16).
(b) "The apologies tendered by the official respondents i.e. The executive and police officers are accepted but with a stern warning to each one of them, with more emphasis as against the superior officers, to be very careful in future, fully alive to their responsibilities with no lapse on their part so that incidents of like nature are not allowed to recur and no untoward action takes place which affects the dignity, order or decorum of the Courts or which are intended to bring the authority of die Courts into disrespect or disrepute, which action could be avoided by proper, responsible and timely action on their part. With this warning, show-cause notices issued to the' following respondents are discharged:
(1) "Tariq Saleem Lone, IGP, Islamabad.
(2) Altaf Hussain, SSP, Islamabad.
(3) Bashir Ahmad Nasir, ASP, Islamabad.
(4) DSP Liaqat Ali.
(5) DSP Muhammad Ashiq Farooqui.
(6) Inspector Jamil Ahmad Hashmi (SHO PS. Sectt), Islamabad.
(7) Inspector Mussarrat Khan (SHO Bharakau)
(8) Abid Ali (ADC General and Acting DC)
(9) Muhammad Ali, Assistant Commissioner,
(10) Iftikhar Ali Shalwani, Assistant Commissioner.
12. (These are respondents Nos. 17 to 26).
(c) "Show-cause notice issued to respondent No. 6 Mushtaq Ali Tahir kheli is withdrawn.
(d) "Charges for committing contempt of this Court are framed against the following:--
(1) Tariq Aziz son of Mian Abdul Aziz, MNA (respondent No. 1).
(2) Mian Muhammad Munir son of Haji Din Muhammad, MNA (respondent No. 2);
(3) Ch. Tanvir Ahmed Khan son of Ch. Wilayat Ali Khan, MPA (Punjab) (respondent No. 3).
(4) Akhtar Rasool son of Dr. Ghulam Rasool, MPA (Punjab) (respondent No. 4);
(5) Akhtar Mahmood son of Haji Noor-ud-Din, MPA (Punjab) (respondent No. 7);
(6) Shahbaz Goshi son of Ch. Siraj Din, r/o B-313, Gali No. 15, Naya Mohallah, Rawalpindi.
(7) Sardar Muhammad Naseem Khan son of Sardar Muhammad Zaman Khan, M.P.A. (Punjab)
13. (respondent No. 8).
14. "Pro forma of the charge framed in respect of each contemner is in the following terms:-- "You_______________ (name)_________________________ _____ son of ___________________ (name of father) ____________________________ were a part of the crowd/people who had gathered in and around the Supreme Court of Pakistan building, Islamabad in the morning of 28th November, 1997 and were involved in acts of rowdyism including raising slogans and display of banners against the judiciary with the intention of bringing the authority of this Court into disrespect or disrepute and/or to lower its authority and/or to disturb the order or decorum Of the Court, and by your actions you have committed contempt of this Court and rendered yourself liable to punishment under Article 204 of the Constitution of the Islamic of Pakistan read with sections 3 and 4 of the Contempt of Court Act, 1976."
15. "10. It may be noticed that during the inquiry proceedings statements of 53 witnesses were recorded and during the trial the testimony of 21 witnesses was brought on record.
16. "11. The learned Bench vide paragraph 9 of the impugned judgment observed :- "From the evidence of 21 witnesses recorded before us and from the cassettes recording the events of 28.11.1997 from the cameras of-the closed circuit system of this Court we are convinced that a crowd/mob had gathered on that date outside the Court, which according to the witnesses was 2000/3000 strong and was raising objectionable slogans against the judiciary and also flying banners and placards with objectionable writings against the judiciary. A sizeable number got inside by scaling over and by forcing open the outer gate and many forced themselves inside the Court building and quite a few of them went upto the first floor and were found loitering in the lobby/foyer next to Court Room No. 1. Slogans and banners were raised inside the building also."
17. "It follows that it was not a case of the situation building up on the spur of the moment and the crowd getting excited and forcing their way inside. A number of buses had brought-people to the Court. It appears from the evidence that the action of that day was planned and the purpose was to disturb the Court which was conducting contempt proceedings at that time...."
18. "12. The admitted position is that respondents Nos. 2 to 8 were charged when the learned Bench considered that a prin a facie case against them has been made out. This being so, the onus was upon them to establish their innocence. It is well-settled that a contempt case in the matter of placing the onus is totally different from a case under the criminal law, which presumes innocence of the accused and places the burden on the prosecution to establish the charge against him beyond any reasonable doubt. Whereas in a contempt case the onus' is entirely upon the person charged to prove his innocence. The same view was taken by a seven-member Bench of this Court in Masfoor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823) + (KLR 1998 SC (Pak) 1). The Court also held in State v. Khalid Masood (PLD 1996 SC 42 at 66), that, "the rule of criminal 'jurisprudence that if to views on the same, evidence are plausibly possible, the one favouring the persons standing trial should be preferred over, the one against him, cannot be pressed into service in contempt proceedings as the same are not criminal proceedings stricto senso but are sui generis in nature partaking of some of the elements of both civil and criminal proceedings" but constituting neither.
19. This principle was also reiterated in Masroor Ahsan (supra), at page 879 Placitum-C.
20. "13. Viewed in the context of the well-established law relating to power of committal for contempt, we say with utmost respect that it is difficult to sustain the findings recorded by the learned Members of the Bench to the effect that the respondents are entitled to acquittal under the law on the ground that it could not be said that the case against any of them had been established beyond reasonable doubt despite reaching the conclusion that the action of the mob/crowd amounted to most flagrant type of contempt of this Court."
21. "14. We. Have minutely gone through the material available on record, which includes the testimony of PWs, video cassettes, photographs as also the photographs published in 'The Nation' and 'The News' available at pages 7-13, Part-II of the Paper Book, identifying some of the accused; exhibit P- 8/2 which is a cutting from daily 'The Nation' under the caption 'Jetlag' at page 15 of Part-11 above; Exhibit P-8/3, which is a news item titled 'Setting the Record Straight' at page-16 of Part-1 Above; Exhibit 30/1, which is the statement of Abdul Wadood Qureshi, Journalist Witness No. 30, available at pages 49-54, Part-II above; Exhibit 32/1, which is a news item under the heading Foul Mouthed Rowdies Storm Supreme Court, Judges Retreat available at page 57 of Part-II; Exhibit 33/2, which is a news item under the caption ' Mob Attacks Court, Halting PM's Trial' available at page 61 of Part II; Exhibit 34/3, a news item published in 'The News' under the title 'CJ Seeks Army's Protection as Mob Storms SC' available at pages 69-70 of Part II; Exhibit 34/4 a news item published in 'Dawn' under the title 'Rowdyism at SC Disrupts Hearing' available pages 71-72 of Part II; Exhibit 34/5 which is a news item published in daily ' Ummat' Karachi, at page 73 of Part II."
22. "15. Having heard the arguments on behalf of the parties we have come to the conclusion that respondents Tariq Aziz, Mian Muhammad Munir, Ch. Tanvir Ahmed Khan, Akhtar Rasool, Akhtar Mahmood, Shahbaz Goshi and Sardar Muhammad Naseem Khan who were a part of the crow/people who had gathered in and around this Court in the morning of 28th November, 1997, were involved in acts of rowdyism including raising slogans and display of banners against the judiciary with the intention of bringing the authority of this Court into disrespect/disrepute and/or to lower its authority and/or to disturb the order or decorum of the Court, and by their actions they have committed contempt of this Court and rendered themselves liable to punishment under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 read with sections 3 and 4 of the Contempt of Court Act, 1976."
23. "16. The learned three-member Bench rightly postponed further proceedings against some of the respondents/miscreants till the decision of criminal case (FIR No. 229 of 1997 dated 28.11.1997) registered' at Police Station, Secretariat, Islamabad."
24. "17. We find that without substantial compliance of section 7 of the Contempt of Court Act, 1976 no proceedings for contempt can be initiated against PML (N) or Mian Muhammad Nawaz Sharif or their other leaders allegedly involved in the act of rowdyism. The matter requires a thorough probe which. Course of action was not resorted to earlier. The ends of justice would be fully met if further proceedings against respondent No. 1 are also deferred till a thorough investigation is made by the Investigating Agency concerned as to the culpability of otherwise of respondent No. 1 as also any other person who may be found so involved. The Registrar of this Court shall supply a print of video film prepared by BBC and of the film prepared by the Closed Circuit System installed in the Supreme Court premises to the Inspector General of Police, Islamabad, who shall entrust the investigation to a senior police officer, not below the rank of Superintendent of Police. The Investigating Agency shall complete the investigation within a period of four months from the receipt of copy of this order so as to identify the miscreants involved in the incident and thereafter proceed in accordance with law."
25. "18. Mr. Javed Akram, the then Chief Commissioner, Islamabad to whom notice was also issued was summoned by this Court for assistance. No further action is called for to his extent."
26. "19. As regards the application moved by the learned Attorney General for production of additional evidence, it is well-settled that no had and fast rules can be laid down to define or limit the exercise of discretion and the powers conferred on a Court of appeal. This Court has a wide discretion in such matters, which must be exercised judiciously depending upon the facts and circumstances of each case. The Appellate Court has always the power to call for the additional evidence under the provisions of sections 375, 428 and 540 of the Code of Criminal Procedure as also under rule 27, Order XLI of the Code of Civil Procedure. Clearly, if there is apprehension of justice failing by an erroneous acquittal or any erroneous conviction, the Court would be justified in allowing additional evidence at that stage. The discretionary power vesting in this Court' in the regard can be invoked at any stage of the proceedings and under exceptional circumstances any witness can be examined or a witness already examined can be recalled for further examination if sp required in aid of justice. As we have already directed a thorough investigation into the matter vide paragraph 17, above, therefore,, there is no need in these proceedings to record any additional evidence. The applications stand disposed of accordingly."
27. "20. We have also considered the question Of tendering "unqualified" apologies on behalf of respondents Nos. 2 to 8 at this stage. It is settled law that tendering of unqualified apology amounts to admission of the charge. We find that the respondents were not since in tendering apologies in that the learned counsel reiterated that the unqualified apologies tendered by their clients are in the alternative and without prejudice to the submissions, made by them on merits.
28. We are afraid such apologies do not qualify for acceptance in the light of the well- settled principles laid down by the Superior Courts in this behalf i.e. (a) the apology must be offered at the earliest stage of the contempt proceedings and may not be postponed till fag-end of. The proceedings; (b) the apology must be unconditional, unreserved and unqualified; (c) the apology should not only appear but must also satisfactorily represent sincere and genuine remorse and should not be half-hearted or mere formality; and (d) the contemner should not endeavour to justify his conduct. Here, the respondents had specifically disputed the charges levelled against them, had unequivocally pleaded that innocence and had endeavoured to justify their conduct even at the fag-end of the proceedings here. Therefore, their apologies are not accepted."
29. "21. In view of the above circumstances, we find that ,the respondents, namely, Tariq Aziz, Mian Muhammad Munir, Ch. Tanvir Ahmed Khan, Akhtar Rasool, Akhtar Mahmood, Shahbaz Goshi and Sardar Muhammad Naseem Khan, are guilty of committing contempt of this Court. We accordingly convict them under Article 204 of the Constitution of the Islamic Republic of Pakistan read with sections 3 and 4 of the Contempt of Court Act, 1976 and sentence them to undergo simple imprisonment for one month each and a fine of Rs. 5000/- each or in default thereof to suffer simple imprisonment for a further period of one month."
4. We have heard Messrs Sardar Muhammad Ishaq Khan and M. Nawaz Kasuri, learned counsel for the respondents herein as well as Mr. Muhammad Ali Sayed, learned Senior ASC representing PML (N), the learned Attorney General for Pakistan and the learned Deputy Attorney General as also 'Shahid- Orakzai, and his counsel Mr. Muhammad Ikram Chaudhary and carefully examined the voluminous material on record.
5. Mr. Muhammad Ali Sayeed, learned Senior ASC raised a preliminary objection regarding maintainability of the appeal contending that vide order dated 14.6.1999, a five-member Bench of this Court had held that the order of three-member Bench could not be reviewed through Criminal Original Petition filed by Shahid Orakzai on any ground mentioned therein or on any other ground but converted the said petition into an appeal without giving any reasons with the result that the respondents, who had been acquitted after a prolonged trial, were subjected to same agony all over again. He next contended that under Article 185 (2) of the Constitution, an appeal lies to the Supreme Court from any judgment, decree, final order or sentence of a High Court:-- "(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, oh revision, has enhanced a sentence to a sentence as aforesaid; or
(b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid;
(c) if the High Court has imposed any punishment on any person for contempt of the High Court; or
(d) if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such o(the sum as may be specified in that behalf by Act of [Majlis-e-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution."
30. Clause (3) thereof envisages that an appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme. Court grants leave to appeal and third category of appeal to the Supreme Court is envisaged by section 10 (2-A) of the Contempt of Court Act, 1976, therefore, there was no precedent whatsoever for conversion of a Criminal Original Petition into an appeal. He argued that an appeal falling in the last category can only-be filed by an aggrieved person and no one else. According to him, an appeal under section 10 (2-A) of the Contempt of Court Act, 1976 is in the nature of Intra- Court Appeal and lies only "to a larger Bench consisting of all the available remaining Judges of the Court within the country", as such the order dated 14.6.1999 suffers from jurisdictional error. He further argued that right of appeal is creation of statute and no Court can suo motu create a new right of appeal. The precise submission was that this Court was not seized of any appeal, at all inasmuch as no appeal was filed. He also contended that even amended section 10 of the Contempt of Court Act, 1976 does not provide an appeal against an order of acquittal rather the said section provides an appeal only against an order of conviction.
6. In reply to the preliminary objections raised by Mr. Muhammad Ali Sayeed, the learned Deputy Attorney General submitted that the proceedings in. Contempt are not in the nature of civil or criminal proceedings stricto senso and that the Court in such cases is entitled to devise such procedure which is not in violation of any law or principle of natural justice. He further contended that under section 10(2-A) as amended a direct appeal lies against an original order. As such the five-member Bench headed by the then Chief Justice lawfully converted the Criminal Original Petition into an appeal vide order dated 14.6.1999 and directed issuance of notices. He next contended that it is admitted proposition of law that the matter of contempt is between the Court and the contemner alone, therefore, the Court may act suo motu or act upon an information or initiate proceedings upon an application. His precise submission was that even if it is presumed that the present appeal is technically not maintainable, this Court has Constitutional and inherent jurisdiction and power to review the case suo motu as it is a matter of upholding and safeguarding the dignify and honour of this Court which must be preserved. Shahid Orakzai submitted that this Court has always had the jurisdiction to review the orders passed by it in exercise of its original jurisdiction.
7. We are inclined to the view that the order passed by the five- member Bench of this Court converting the Criminal Original Petition filed by Shahid Orakzai into appeal does not in anyway preclude the respondents from questioning the maintainability of the appeal. Clearly, the order dated 14.6.1999, to the extent of conversion into appeal was subject to all just exceptions. It is true that the matter could not .Be reviewed on a Criminal Original Petition but as rightly conceded by Mr. Muhammad Ali Sayeed, this Court is not precluded from recalling its earlier order by taking suo motu action on coming to know that some miscarriage of justice had occurred due to the Court having proceeded on wrong premises. Refer Fida Hussain v. Secretary, Kashmir Affairs and Northern Affairs Division (PLD 1995 SC 701). Further, the learned counsel for the parties, rightly stated that under Article 187(1) of the Constitution, this Court is empowered to issue such directions, orders, or decrees as may be necessary for doing complete justice in any case or matter pending before it. Here, the error being patent on record, this is a fit case where suo motu notices could have been issued to the respondents, who had secured an acquittal from the learned three- member Bench of this Court as a result of the above- mentioned error. Refer The State v.
31. Muhammad Nawaz (PLD 1966 SC 481).
8. The principles laid down in Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), for interference with an order of acquittal in the light of well-known principles of reappraisement of evidence are not attracted in this cause as it does not arise out of acquittal of the accused under ordinary criminal trial, which is based on the initial presumption that till found guilty, the accused is innocent and that benefit of every reasonable doubt should be extended to the accused. In contempt matters, as stated in the preceding paragraphs, the onus is on the contemner himself to prove his innocence. We would not have interfered with the acquittal merely because on reappraisal of evidence a different view from that of the learned three- member Bench acquitting the accused, could reasonably be possible. However, contempt matters stand on a different footing, in that in such matters while exercising suo motu review jurisdiction this Court is competent to assess the gravity of the offence committed by an accused/contemner and if it is satisfied that contempt of Court bas. In fact, been committed, it can proceed to punish the contemner in accordance with law.
9. As observed by us in the Short Order reproduced above, the preliminary objection, raised by Mr. Muhammad Ali Sayeed, as to the maintainability of appeal against an order of acquittal is of no consequence in the fact and circumstances of this case, in that, the impugned decision is based on the erroneous assumption that Contempt proceedings being criminal proceedings should be conducted in the same manner as other criminal proceedings and the rules of such criminal proceedings should also apply. Criminal Original Petition as converted into Intra-Court Appeal, was initially admitted to regular hearing by a five-member Bench and later heard by all the remaining available Judges of the Court, therefore, irregularity, if any, stood cured. At the time of re-hearing of the above appeal, it was heard by all the remaining ng available Judges (five at that time minus Abdul Rehman Khan, J.) This being a part heard case, the matter is now being disposed of by the same Bench. Be that as it may, the present appeal is since being treated as Suo Motu Review Petition, the above objection loses significance. As to the objection that reliance could not be placed upon the statements recorded in the absence of the accused/respondents without any cross-examination, suffice it to say, that under sub-section (3) of Section 7 of the Contempt of Court Act, 1976, the first step which the Court is required to take is to hold an inquiry. During the inquiry proceedings it is not necessary to provide an opportunity to the accused/respondent to cross-examine the witnesses. However, when evidence is recorded during the trial, the Accused/respondents are entitled to cross-examine the witnesses produced at that juncture and are also entitled to produce evidence in defence. This requirement was fully complied with in the case of acquitted respondents. It is, therefore, not necessary to examine the maintainability of the petitioner on the touchstone of section 10(2-A) of the Contempt of Court Act, 1976. The scope of Intra-Court Appeal in terms of section 3 and 4 and sub-section (2-A), of section 10 of the Contempt of Court Act, 1976 will be examined in some other appropriate case. We treat the Criminal Original Petition as a suo motu review petition, which may be registered as such.
10. Mr. Muhammad Ali Sayeed, raised another preliminary objection to the effect that several names were taken who were not arraigned before the three-member Bench. He further' stated that many others were similarly named but no charge was framed against them. He submitted that no appeal against the fact of not being charged lies in view of W4PDA v. Chairman, N.I.R.C. (PLD 1979 SC 912). He contended that an appeal lies only against an order of conviction. Reliance was placed on Mohd. Mehmood v. Ramlakshman (1995 Cr.LJ. 1106 at 1109), Subhash Chandra Seti v. Sh. B.R.
32. Kakkar, Commissioner, Municipal Corporation of Ludhiana (1990 PLR 46 at 47) and Syed Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823) + (KLR 1998 SC (Pak) 1).
11. Mr. Sayeed, however, did not dispute the power of this Court to do complete justice in any given case and/or to exercise suo motu review. The second preliminary objection is repetitive of the first preliminary objection though in different form and .The same does not merit any serious consideration, in that we have already observed that the Criminal Original Petition shall be treated as suo motu review petition and is being disposed of as such.
12. 'On merits, Mr. Sayeed submitted that the material available on record does not connect PML (N) with the incident of 28.11.1997. In support of the above submission, the learned counsel relied upon the following pieces of evidence:- PW 2 Ch. Muhammad Ali, Assistant Commissioner, Sadar, Islamabad at page 353 of the paper book states: "After some time Mr. Mushahid Hussain came there and he also helped us by driving the people out from the derive way. The position was got cleared within half an hour at about 11.00 or 11.10 a.m."
33. PW 3 Iftikhar Ali Shalwani, Assistant Commissioner (Rural), Islamabad at page 357 states: "There I saw Kh. Asif talking to the people who were coming up, to go out...."
34. PW 4 Liaqat Ali, SDPO,. Industrial Area, Islamabad at page 361 states: "After about 15/20 minutes I came back to the lobby outside Court Room No. 1 and saw the people going down. This was being done with the help of some parliamentarians."
35. PW 10 Abid Ali, Addl. Deputy Commissioner (General), Islamabad, at page 376 states: "I came to the door of the Court Room No. 1 which was closed and I just stood there. I requested some parliamentarians who were there outside the Court to help us in getting the people out. They helped us. We were successful in getting the people out with the help of parliamentarians and other people. This would have taken 5/10 minutes. With the help of the parliamentarians and other people including lawyers and police, we were balked to slowly push the people out of the building........................ I remember to parliamentarians whom I had requested. One was Khawaja Asif and the other was Tariq Aziz, who was sitting on a chair. They helped us."
36. PW 12 Muhammad Ilysa, Judicial Assistant, Supreme Court of Pakistan, at page 387 states: "Before the crowd had come up, Khawaja Asif and Ch. Tanveer Ahmad had come out of the Court Room No. 1 tyr smoking cigarettes and when the peopleCame up, the security people got the door of Court closed remained outside the Court Room. Photographers had also come up alongwith the crowd. Khawaja Asif and Ch. Tanveer were requesting the people to go down but as soon as the photographers would focus their cameras towards the people, they would raise more slogans. The crowed remained in the hall outside the Court Room No. 1 about half an hour. No one from them went inside the Court...... It is correct, that Akhtar Mehmood remained inside the Court Room till the entire commotion was over. It is correct that Khawaja Asif and Ch. Tanveer reprimanded the people who had come up and asked them to go down. It is correct that they helped us in getting the people to clear the area."
37. PW 13 Zahid Hussain, journalist, at page 392 states: "............ I saw Khalid Anwar Law Minister sitting there holding his head. I asked him, was he not ashamed of himself; shaking his head, he said "pathetic, pathetic".
38. PW 13 Altaf Hussain Bhatti, journalist; at page 334 states: "I may add that when we were trying to clear the outside premises of those people who were still in the premises of the Supreme Court, Mr. Mushahid Hussain, Information Minister, came there and at that time some people present there clustered around him. At that time some slogans were raised but this Minister asked them to shut up'".
39. At page 400 he states; "From there I reached ground floor lobby of the Court. There Kh. Asif and Syed Zafar Ali Shah, MNAs were requesting the people to go out, but the people were raising slogans and after about 15 minutes people were pushed out from the building."
40. At page 401, he states "on the banners it was also written "Judiciary is greatly respected."
41. W 16, Fakhar-ur-Rehman, journalist, states: "Inside the Court Room Mushtaq Ali Tahir kheli, Aurangzeb Khan and Sardar Muhammad Naseem wanted me to be handed over to them..?------ I was first beaten up by Sardar Naseem and then I was rescued by the said Journalists. (According to the learned counsel, this does not constitute contempt of Court and it does not establish involvement of PML in the case).
42. PW 19 Ardeshir Cowasjee at page 414 stages: "I accuse the Prime Minister and the ruling party for storming the Supreme Court.... They obstructed the course of justice............... At the time of our entry in Court room the Judges were rising. There was pandemonium all around and when the doors of the Court Room were opened again, Khalid Anwar and I walked out." (According to the learned counsel, no weight can be given to his testimony on account of his avowed bias as shown in the opening sentence of his statement).
43. PW 21 Syed Iqbal Haider, senator, at pages 423-424 states: "The attack on the Supreme Court started on 21.8.1997 but the physical mob attack took place on 28.11.1997. This was a premeditated attack by the party named Pakistan Muslim League Nawaz Group. This event not only happened on 28.11.1997 but prior also." (According to the learned counsel, the witness is a committed party worker and his statement is full of bias).
13. Mr. Tanvier Bashir Ansari, the learned Deputy Attorney General submitted that the learned three- member Bench had unequivocally held that a serious occurrence of rowdyism and contempt of Court took place on 28.11.1997, therefore, it would be just and proper to conduct a thorough investigation to identify the persons and their role in the occurrence to effectively fix responsibility upon the persons concerned.
14. The learned Deputy Attorney General filed a statement alongwith a 'Chart of evidence', which read thus:-- "During the proceedings in Criminal Misc. No. 27 of 1998, as many as 53 witnesses were examined.
44. Besides this, video cassettes produced by Mr. Ardeshir Cowasjee as well as original cassette recording on closed circuit TV Cameras were also produced. The 53 witnesses included Mr. Altaf Hussain Bhatti, Mr. Ardeshir Cowasjee, Mr. Fakhar-ur-Rehman and Zahid Hussain. The statements so recorded are as under:--
(1) Mr. Altaf Hussain Bhatti at pages 255-257 and Exhibit 24/1 at pages 33-39 of Part-II (of the Paper Book). He identified Mr. Riaz Khan, Mr. Shakil Awan, Mr. Maqbool Ahmad, Mr. Mumtaz Ahmad, Mr. Faruq Khattak, Mr. Liaqat Ali Khan, Javaida Fatima, Nelofar Bakhtiar, Seema Jilani but no show- cause notices were issued to them.
(2) Mr, Ardeshir Cowasjee at pages 163-168 (of the Paper Book). He produced video cassette containing superimposed names of those identified and their images encircled which included Senator Saifur Rehman, Akhtar Rasool etc. But no show-cause notice was issued to Mr. Saifur Rehman. Mr. Fakhar-ur-Rehman's statement at pages 404-407 and pages 341-343 specifically identifies Mushtaq Ali Tahir Kheli and Aurangzeb Khan amongst Others, Senator Syed Iqbal Haider in his statement at pages 423-421 also identifies Mushtaq Ali Tahir Kheli but even then the show- cause notice against Mr. Mushtaq Ali Tahir Kheli was discharged.
(3) Mr. Zahid Hussain at pages 389-398 identified Senator Saifur Rehman at page 391, he also identified Senator Aurangzeb and Mushtaq Tahir Kheli. But no show-cause notice was issued to Senator Saifur Rehman while the one issued to Mushtaq Tahir Kheli was discharged."
45. "Important statements of these witnesses, the video cassettes and other material on the record such as photographs appearing in the newspapers and other magazines were sufficient for issuance of show-cause notice to the persons mentioned above and there was no justification for discharging the show-cause notice against Mr. Mushtaq Tahir Kheli."
46. Chart of Evidence WITNESS NAME/DESIGNATION PAGES STAGE REMARKS PW-1 Altaf Hussain, SSP AC (Saddar), Islamabad. 344-350. During trial. Identifies Mushahid Hussain, P.346 333-340 Before framing of charge. Identifies 8 accused of FIR, P. 336.
47. PW-2 Ch. Muhammad Ali, AC (Sadar), Islamabad 351-335 288-291 During trial Before framing of charge. Identifies Mushahid Hussain and Akhtar Rasool at pages 353-356/ Mentions aggression against S. Iqbal Haider and identifies person from Muslim League Youth etc. At page 289.
48. PW-3 Iftikhar Ali Shaiwani, AC(R) Islamabad. PW-4 Liaqat Ali, ADPO, Islamabad I 360-362 304-305 During trial Before framing of charge Identifies ' people belonging to Pakistan Muslim League, at page 362.
49. States raising of slogans against Judges at page 304.
50. PW-5 Syed Alamdar Hussain Shah, Assistant Registrar (General), Supreme Court. 363-365 During Trial PW-6 Ch. Abdul Razzaq, Court Associate. 366-367 During trial PW-7 Munir Hussain Shah. Naib Qasid 368-369 During trial. PW-8 Amirullah Khattak, Judicial Assistant, Supreme Court. 370-371 During trial. PW-9 Sohail Ahmed Babar, Assistant Registrar (General), Supreme Court. 372-373 During trial.
51. PW-10 Abid Ali, ADC (General), Islamabad 374-377 During trial. States' the presence of Khawaja Asif and Tariq Aziz at page 377.
52. PW-11 M. Zakaullah, former Registrar Supreme Court. 378-385 During trial. Identifies Akhtar Rasool at page 379, states his worry about the security of Chief Justice and Judges, states about the presence of Akhtar Rasool page 379, Mushahid Hussain, Senator Saifur Rehman at page 381 and states handing over to copies of video cassettes to. Chief Commissioner, Islamabad.
53. PW-12 Muhammad Ilysa, Judicial Assistant, Supreme Court.' 386-388 During trial. Identifies Akhtar Mehmood, MPA and Ch. Tanvier Ahmad, MPA at page 386, Again mentions them at page 387.
54. PW-13 Zahid Hussain, Journalist.
55. 389-398 268-269 During trial.
56. Before framing of charge. Stales about the occurrence in detail, identifies Senator Saifur Rehman at page 391. Identifies Senator Aurangzeb and Mushtaq Tahir Kheli, Akhtar Rasool, page 391. Identifies Tariq Aziz, page 392. Identifies Mushtaq Tahir Kheli and Akhtar Rasool, at page 397. Confirms his story published in the News lines and reproduced in The News, page 269.
57. PW-14 Altaf Hussain Bhatti, Journalist 399-401 2-55-257 During trial Before framing of charge. Reiterates his statement on oath recorded on 4.5.1998 and . His statement in writing at page 400. Reiterates his statement in writing at page 255.
58. Statement/Affidavit of PW-14 is Exh. 24/1 at pages 33-39 of Part-11 (Exhibits). Detailed account of rowdyism identifying Akhtar Rasool, Sardar Nascent, Akhtar Mehmood, Ch. Tanvir Khan, page 35 Part-II and also identifies Riaz Khan, Shakil Awan, Babar Awan, Maqbool Ahmad, Mumtaz Ahmad, Faruq Khatak, Ali Abbas, Liaqat Ali Khan, Javaida Fatima, -Nelofar Bakhtiar, Seema Jilani etc. Page 36 Part-1.
59. Further details pages 37-38, Part-II.
60. PW-15 ' Navid Meraj, Journalist. . 402-403 During trial. Identifies office bearers and ladies of PML carrying their flags, also identifies Rao Qaiser at page-402 and Mushahid Hussain at page- 403.
61. PW-16 , Fakhar-ur-Rehman, 404-407 During trial. ' Identifies Mushtaq Journals. Ali Tahir Kheli, Aurangzeb Khan and Sardar Muhammad Nasim, page 405, states - about being beaten by Sardar' Nasim, at page 405, reiterates his earlier statement at pages 341 and 343.
62. 341-343 Before framing Reiterates his of charge statement in writing Exhibit-53/1 at - pages 145-146, Part-11, states to be manhandled by some persons including persons including Sardar ' Nasim, MPA and Mushtaq Tahir V Kheli, P 145.
63. PW-17 Khushnood Ali Khan, Journalist. 408-410 . During trial PW-18 Mehmood Ahmed, 412-413 During trial States about Journalist. Rowdyism.
64. PW-19 Ardeshir Cowasjee, 414-419 During trial Accuses the Prime Journalist. Minister and the ruling party for storming the Supreme Court, at page 414, Identifies Saifur Rehman and his role, page 415, also produced video ' cassette.
65. Exhibit PW-19/1, page .417 also desired to produce documents which Were kept on the file and marked. These documents were to be exhibited after deciding the objections, page. 417. States that V' J63-168 Before framing of charge video cassette identifies the accused, page 418. Reiterates his affidavit at page 153. Affidavit is exhibit P.I/1, at pages 2-4 of Part-U (Exhibits), States in the affidavit that the video cassette contains' super imposed names of those identified and their images encircled, page-4, Part-II.
66. PW-20 Muhammad Amin Farooqi, the then Add. Registrar, Supreme Court, 420-422 During trial.
67. States about video cassettes, and their production as Exhibit-PW-201/1 and Exhibit PW 20/2.
68. PW-21 Senator Syed Iqbal Haider. 423-431 During trial states in detail about the occurrence ' of 28- 11-1997, identifies- Mushtaq Tahir Kheli to have attempted to attack him alongwith other PML leaders, page 428. Also states about the arrangement of lunch in the Punjab . House for the Rioters, pages 275 279, produced the statement of Exhibit 34/1 at page 275, Exhibit 34/1 to Exhibit 34/7 are at pages 62 to 105 of Part-11 (Exhibits). In his written statement, identified Mushtaq Tahir Kheli, pages
64. 67 of Part-11.
69. EXHIBITS: "Photographs published in daily the Nation an4 The News, pages 7-13, Part-II (Exhibits) identifying some accused. Exhibit P-8/2 cutting from daily Nation-Jetlag, page 15, Part-II (Exhibits), Exhibit P- 8/3, page-16. Exhibit 30/1 statement of Abdul Wadood Qureshi page 49-54, Part-II (Exhibits), Exhibit 32/1, page 57, Part-11, Exhibit 33/2 page 61, Exhibit 34/3 pages 69-70, Exhibit 34/4 pages 71-72, Exhibit 3475 page 73, Exhibit 34/6 page 74-75, Exhibit 34/7 pages 76-105."
15. The learned Deputy Attorney General submitted that PW-13 Zahid Hussain had identified Saifur Rehman, Aurangzeb, Mushtaq Tahir Kheli, Akhtar Rasool. And Tariq Aziz. He referred-to the statement of PW14 Altaf Hussain Bhatti, to contend that this witness had identified Akhtar Rasool, Sardar Naseem, Akhtar Mahmood, Ch. Tanvir Khan. He contended that besides the above persons, who-are respondents before this Court; this witness also identified Riaz Khan, Shakeel Awan, Babar Awan, Maqbool Ahmed, Mumtaz Ahmed, Faruq Khattak, Ali Abbas, Liaquat Ali Khan, Javaida Fatima, Nelofar Bakhtiar an4 Seema jilani. He submitted that PW- 16 Fakhar-ur-Rehman had identified Mushtaq All Tahir Kheli, Aurangzeb Khan, and Sardar Naseem as committing acts of rowdyism in the Court premises on the day of incident and that PW-19 Ardeshir Cowasjee accused the Prime Minister and the ruling party of being responsible for storming the Supreme Court. He further contended that PW Ardeshir Cowasjee had identified Saifur Rehman and narrated his role and that he had also produced video cassette Exh, PW-19/1, in which he had encircled faces of the persons committing the acts of rowdyism in the Court premises. Hp also referred to the statement of PW-21 Syed Iqbal Haider to contend that this witness had identified-Mushtaq Tahir Kheli as attempting to attack him alongwith other PML leaders.
16. The learned Deputy Attorney General argued that the plea taken by the respondents Nos. 2 to 8 while explaining their presence in the Supreme Court premises on the eventful day to the effect that they had come to the Supreme Court to see their leader as. He was to appear before the Court on that day, is ex facie false, in that the appearance of Mian Muhammad Nawaz Sharif had been exempted on the day of occurrence by the Court. He contended that video film shows that the administration and members of the police force,, posted in the Supreme Court premises for security purposes, were standing by and 'watching, which circumstance shows that the attack was preplanned and that the police know that they were protected and the respondents were sure that they were safe.
17. He finally submitted that the learned three-member Bench had fallen into error in not taking into consideration the statements of all the witnesses and Exhibits while appreciating the evidence qua identification of the respondents/contemners, which by itself is a valid ground for interference by this Court.
18. Mr. Aziz A. Munshi, learned Attorney General for Pakistan referred to the judgment in Malik Asad Ali v. Federation of Pakistan (1998 SCMR 122), dated '26.11.1997 passed by a Bench of this Court at Quetta, comprising Irshad Hasan Khan, J. (as he then was) and Khalil-ur-Rehman Khan, J., read with 'the order of even date by 'the Bench which then consisted of Irshad Hasan Khan, J. (as he then was), Nasir Aslam Zahid and Khalil-ur-Rehman, JJ. And the judgment dated 28.11.1997 passed in Malik Asad Ali v. Federation of Pakistan (1998 SCMR 15), by a Bench at Quetta comprising Irshad Hasan Khan, J (as he then was), Nasir Aslam Zahid and Khalil-ur-Rehman Khan, JJ which were ultimately upheld by ten- member bench of this Court vide judgment dated 23.12.1997 reported as Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), in consequence whereof the appointment of Mr. Justice (Retd) Sajjad Ali Shah as Chief Justice of Pakistan on 5.6.1994 under Article 177 of the Constitution was declared invalid and unconstitutional being in violation of the well-established Constitutional convention that the senior most Judge of the Supreme Court- is to be appointed as the Chief Justice of Pakistan unless for some solid of strong reason, he is held disentitled to the said appointment. Mr. Justice (Retd) Sajjad Ali Shah-consequently ceased to hold the office of Chief Justice of Pakistan and reverted to the position of a Judge of this Court in accordance with his seniority. The operative part thereof is as under;- "We accordingly, direct the Federal Government to denotify the appointment of Mt. Justice Sajjad Ali Shah as the Chief Justice of Pakistan. Mr, Justice Sajjad Ali Shah was junior to Mr. Justice Saad Saood Jan, Mr. Justice Abdul Qadeer Chaudhry and Mr. Justice Amal Mian on the date he was appointed ag the Chief Justice of Pakistan. On the date was announced the judgment in these cases, Mr. Justice Saad Saood Jan and Mr. Justice Abdul Qadeer Chaudhry already stood retired from service on reaching the age of superannuation. Therefore, no relief could be granted to them.
70. The counsel for Federal Government conceded before us in the above cases that there is nothing against Mr. Justice Amal Mian, the senior most Judge of the Supreme Court now, which disentitled him to the appointment as Chief Justice of Pakistan. We, accordingly, direct the Federal Government to take immediate steps to notify the appointment of Mr. Justice Amal Mian as the Chief Justice of Pakistan. We further hold that all actions taken and orders passed by respondent No. 2 in his capacity of Chief Justice of Pakistan, up to 25.11.1997 will be deemed to have been validly taken and passed and will not be open to any challenge on the ground of defect in the appointment of respondent No. 2 as Chief Justice of Pakistan .However, all actions taken or orders passed-by respondent No. 2 as Chief Justice of Pakistan on and after 26.11.1997 are declared of no legal effect."
71. Review petition filed against it was dismissed vide judgment dated 14.10.1998 reported as Justice Sajjad Ali Shah v. Malik Asad Ali (1999 SGMR 640). It is a matter past and-closed. such a reference, in the context of determining the guilt or innocence of the respondents in these contempt proceedings, was wholly unwarranted having no nexus with the incident which had taken place on 28.11.1997.
19. The learned Attorney General did n6t make any oral submissions but merely read out a note to reiterate that a case of contempt stands established against the respondents on the basis of the material available on record aild. That Mian Shahbaz Sharif, the then Chief Minister of Punjab and the then Prime Minister were also involved. He then reiterating the submissions made by the learned Deputy Attorney General submitted that the two applications moved by him, one for additional evidence and the Other for recalling the witnesses for further evidence may also be accepted.
20. Sardar Muhammad Ishaq Khan, Senior ASC appearing on behalf of respondents Nos. 2-4 and 6-8, vehemently argued that the 'Chart of Evidence produced by the DAG and even the portions of evidence cited therein did not connect the respondents with the commission of offence.
72. Elaborating the submissions it was contended that the statements of PWs, namely, Zahid Hussain PW-13, Altaf Hussain Bhatti PW-14, Fakhar-ur- Rehman PW-16 and Ardeshir Cowasjee PW-19 and Syed Iqbal Haider PW21, ought to have been read in their- entirety and not in bits and pieces and that such statements should have been read alongwith their examination-in- chief and cross- examination before any inference could be drawn from them, which had not been done in this case.
21. He referred t6 the statement of PW-3 Iftikhar Ali Shalwani, the then Assistant Commissioner, Islamabad, from page 358 of the Paper Book, wherein he had relied to a question as under:-- Q. Is it correct that on 2.6.1998 in your statement you had stated that "Whenever contempt proceedings would take place there was always a crowd as on 28.11.1997". (Learned counsel shows him copy of the statement made by the witness on 2.6.1998).
73. "A. Yes."
74. He then referred to the statement of PW-4 Liaquat Ali, who at page 361 of the Paper Book, stated:- "After about 15/20 minutes I came back to the lobby outside Court Room No. 1 and saw the people going down. This was being done with the help of some Parliamentarians. After sometime the area was cleared and I went down."
75. "Q. Is it correct that Parliamentarians who were attempting to push down the people belonged to Pakistan Muslim League?
76. "A. They were from Pakistan Muslim League."
77. Reference was also made to the statements of Syed Alamdar Hussain Shah PW-5, Ch. Abdur Razzaq PW-6, Munir Hussain PW-7, Amirullah Khan Khattak PW-8 and Sohail Ahmed Babar PW-9, all of whom are officials of this Court, to contend that none of them had said anything against the respondents. He also referred to the statement of PW-10 Abid Ali, ADC (General), Islamabad, who, at page 376 of the Paper Book, had stated:- "I requested some parliamentarians who were there outside the Court to help us in getting the people out. They helped us. We were successful in getting the people out with' the help of parliamentarians and other people. This would have taken 5/10 minutes. With the help of parliamentarians and other people, including lawyers and police, we were able to slowly push the people out of the building....... I remember to parliamentarians whom had requested. One was Khawaja Asif and other was Tariq Aziz, who was sitting on a chair. They helped us. J'
78. He next referred to the statement of PW-11 Zakaullah, who at pages 378-379 had stated:-- "The incident is of 28th November, 1997 and at that time I was working as Registrar of the Supreme Court. On that day I came to the Court at 7.30 a.m. And after reviewing the security arrangements I got to my office by 8.30 a.m. At about 9.30 a.m., 1 received a message from one of the Court staff that in the Hall there were some parliamentarians who wanted Assed to be issued. My office in those days was on- the second floor. First 1 came down to first floor and then went down to the ground floor and then went down to the ground floor. There were 10/12 people who were asking for entry passes. I politely declined. But they kept on insisting that they wanted to wash (watch) the Court proceedings. As we were standing on the ground floor, I asked them to come to the Hall.
79. Akhtar Rasool and one other person came with me but I do not remember now the name of other person."
80. "Then A.D.C. Abid Ali came to the Bar room and informed me that they had controlled the situation.
81. Thereafter I went to the Chamber of the Chief Justice. I was directed to go and see the president of Pakistan and take video cassettes of-the closed circuit "cameras in the Supreme Court. Two cameras of the system were installed in the Reception area on the ground floor . And . One.
82. Camera was installed in the passage leading from the Reception to the Court room No. 1....."
83. "... As the video cassettes that I. Had taken to the presidency were recorded on slow speed those could not be viewed in the Presidency,....... "
84. "I came back to may residence in F-6/3, Islamabad, and got to copies of video cassettes prepared which I delivered to the Military Secretary to the President that same evening. The original cassettes remained with me. Next day I gave copies prepared by me of the cassettes to Col. Irfan of ISI."
85. "I am not sure about the exact date but perhaps it was sometime in December, 1997 that to more copies of the to .Cassettes, covering all the eight cameras, were given by me to the Chief Commissioner, Islamabad.
86. "On 10th or 12th January,. 1998 I went abroad toe medical treatment. I came back in the first week of February, 1998 but I was on leave in Lahore. I had undergone surgery on my right leg.. I was approached by Addl. Registrar Farooqui tor providing original cassettes which were-with me at Islamabad. I instructed my brother-in-law who was in Islamabad to deliver these cassettes to Mr. Farooqui. According to my information these cassettes were delivered to the Supreme Court."
87. "Q. Did you state in your statement in writing or on oath before this Court during the inquiry that on the request by Addl. Registrar Farooqui you had asked your brother-in-law in Islamabad to deliver original cassettes to the Supreme Court?"
88. "A. It is so stated in my statement on oath dated 4.6.1998."
89. "Q. Did you also stated in your statement dated'4.6.1998 that your brother-in-law delivered the cassettes to the Supreme Court?."
90. "A. I did not state so. I did not mention in my statement in writing submitted in the inquiry before this Court that Farooqui had asked me to deliver the cassettes and that I had asked my brother-in-law to deliver the original cassettes."
91. He also referred to the statement of Mr. Muhammad Ilysa, PW-12, who stated at page 386 of the Paper Book as under:-- "I was judicial Assistant in those days in the Supreme Court and this was an incident which had taken place on 28.11.1997. My duty on that day was outside the door of the Court Room No. 1 for checking passes. I same on duty at about 8.15 a.m. On that day. Amongst Parliamentarians whose pastes were checked by me, I remember the names of the to of them; namely, Akhtar Mehmood, MPA and Ch. Tanvir Ahmad, MPA."
92. ".... Before the crowd, had come up, Khawaja Asif and Ch. Tanveer Ahmad had come out of the Court Room No. 1 for smoking cigarettes and when the people came up, the security people got the door of Court closed. I remained outside the Court room. Photographers had also come up alongwith the crowd. Khawaja Asif and Ch. Tanveer were requesting the people to go down but as soon as the photographers would focus their cameras towards the people, they would raise more slogans...... After the people had gone down, doors of the Court room were opened and people inside went out." xxx by Sardar M. Ishaq, Sr. ASC.
93. "It is correct that Akhtar Mehmood remained inside the Court room till the entire commotion, was over. It is correct that Khawaja Asif and Ch. Tanveer reprimanded the people who had come up and asked them to go down."
94. Reference was there made to the statement of Zahid Hussain, PW-13, who at page 390 of the paper book stated as under:- " After about 15/20 minutes I saw the crowd coming to the outer gte and started shaking the gate. I recognized one Rao Qalsar MNA. There were some MPAs, but I do not know their names. There were some activists of Muslim League Youth. I. Do not know the names of those people. Some Of them from the crowd scaled over the gate and then the mob proke the gate. The Security could not control them. Being in the crow I also went inside. When they entered the premises the slogans became much louder. They also broke down the gate of the building. I was in front of the crowd and when they came inside the Court building, I rushed towards the Court room No. 1. Outside the door of the Court room No. 1. I saw Mr. Cowasjee. Meanwhile the crowd was also coming up. At the time the door of the Court was closed and they were not allowing any one to go inside. Then the door of the Court room opened and there emerged Sehator Saifur Rehman. He came out and I heard him saying "Why are you stopping them, let them. Come inside (subject to objection). Myself and one Turkish Correspondent by the name of Fakhar entered the Court room. Some people from the crowed also went inside the Court room. Then there was pandemonium in the Court room. At that time the Court was in session. Some of the Muslim League leaders, who were already sitting inside, stood up and started shouting. I could recognize to of them, Sehator Aurangzeb and Mushtaq Tahir kheli.
95. Another one of them was Akhtar Rasool. At the time, there was total pandemonium in the Court and then the journalist Fakhar shouted saying that" they are coming to get you", addressing the Chief Justice. Some of the Muslim League leaders started arguing with us. This included Mushtaq Tahir kheli and Aurangzeb. Few others were saying "why you are doing this" and they started justifying whatever was happening (subject to objection). One of the Muslim League leaders, I do not know him, caught hold of Fakhar and manhandled him.. ...."
96. "I went around and I also saw Tariq Aziz."
97. His submission was that this witness had not mentioned the name of Tariq Aziz in his statement in writing recorded during inquiry proceedings. He further submitted that no other witness has attributed any overt act against any of the respondents Nos. 2, 3, 4, 6, 7 and 8. He contended that all the prosecution witnesses merely identified the respondents by seeing the video cassettes and that these witnesses had not attributed anything to them causing rowdyism amounting to contempt of this Court. With reference to the statement of PW-15 Naveed Miraj, it was contended by the learned counsel that though the prosecution has relied on this witness but he had said nothing against any of the respondents in this case. He contended that statement of Fakhar-ur- Rehman PW-16 was recorded after to months and seventeen days of the incident and that admittedly he did. Not know the name of Sarcler Muhammad Naseem on the day when his statement was recorded. The learned counsel contended that that was why the learned three- member Bench observed that none of the respondents was identified by the prosecution witnesses, therefore, reliance could not be placed on their statements with regard to the identification of the respondents. Besides, he contended that PW-17 Khushnood A1 I Khan PW-18 Mahmood Ahmed and PW-21 Syed Iqbal Haider did not utter even a single word against the respondents and that since the copy of. Film of the incident telecast by BBC (Exh. 19/1) produced by PW-19 is not admissible in evidence, therefore, no reliance could be placed on the statements of these witnesses or even on the material placed on record for the purpose of identification of the respondents. The learned counsel then referred to the statement of Mr. M.A. Farooqui, PW-20, who, in his statement at page 420 of the Paper Book, stated:-- "I have brought to original video cassettes. The recordings on these cassettes were made in the Control room of the Supreme Court. At that time at different. Places cameras were fixed. Their ' monitoring and recording was done in the control room. These cassettes were received from the then Registrar Mr. Muhammad Zakaullah. I produce the same as Ex.PW-20/1 and PW-20/2."
98. He also referred to the following excerpts from the statement of the said witness at pages 422-423 of the Paper Book:- "In those days when the contempt case was going on, the system of closed circuit was in operation in the Court and its monitoring and recording would take place. This was done by the Staff of the Supreme Court. I may add that on 28.11.1997, Supreme Court staff Tanvir was on duty. I saw these original cassettes during the Inquiry conducted by this Court in this case. When I saw them these were not sealed."
99. Q. On these cassettes it is mentioned "20.10.1996 Sunday V-I and V-2".
100. A. Yes. (Volunteered) We had limited number of cassettes and if the recording of one day was not required to be retained, the same cassette was used again.
101. Q. On the cassettes it is not mentioned that these cassettes recorded the events of 28.11.1997.
102. A. Yes. (Volunteered) But I know what is in these cassettes.
103. Q. When were these cassettes given to you personally by Mr. Zakaullah?
104. A. Mr. Zakaullah was in Lahore and his brother had given these cassettes to me.
105. I do not know where these cassettes were kept and under what circumstances prior to the same having been handed over to the Supreme Court."
106. According to him, reliance on the video cassettes could not be placed, inasmuch as, perusal of statement of the above witness clearly showed that Mr. Tanvir was on duty in the Control Room in the Supreme Court on 28.11.1997, but he had not been produced before the Bench which conducted the trial and, therefore, veracity oi these cassettes had become doubtful for the further reason that these cassettes do not contain any mention of the events dated 28.11.1997 and that at least for some time these cassettes remained neither in the custody of Mr. Zakaullah nor Mr. M.A. Farooqui, PWs, therefore, - the possibility of tampering with them could not be ruled out. It may be observed that tampering with the video cassettes is not established on record. In any event, the respondents have admitted their presence on the eventful day. Viewed in this context, the above objection is also not sustainable.
22. Mr. Ishaq placed reliance on State v, Muhammad Sharif (1995 SCMR 635) and Sultan Ahmad v.
107. Ghulam Raza (1995 SCMR 664), to contend that there is a marked difference between appraisement of evidence in an appeal against conviction and in an appeal against acquittal. The learned counsel further argued that the protracted trial in the present case before this Court by Itself has become a mitigating circumstance. Moreover, when a person facing contempt proceedings surrenders himself to the jurisdiction of the seeking mercy and expressing real, genuine and heartfelt repentance reassuring abstinence from repetition of similar conduct, such apology though does not by itself purge the wrong committed by the contemner, yet reduces its gravity and operates as a mitigating circumstance for taking a lenient and favourable view.
108. Reliance was placed on Syed Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823) + (KLR 1998 SC
(Pak) 1). He submitted that the impugned judgment did not suffer from any non-reading or mis- reading of evidence and that it was a well- reasoned judgment.
23. He Contended that since the learned three-member Bench had first-had impression of the PWs coming before it, due weight has to. Be given to its opinion and reasoning. He contended that in view of the above, this was not a fit case for exercise of quo motu review jurisdiction. Suffice it to say that on consideration, we have treated the Criminal Original Petition as Suo Motu Review Petition for detailed reasons given in the preceding paragraphs. It is, therefore, not necessary to dilate further on this issue.
24. He vehemently contended that since limitation of 30 days is provided for filing of appeal before this Court, the present appeal is beyond time as it has been filed after the said period. The contention is misconceived, inasmuch as, the impugned judgment was passed ,qn 14.5.1999 and the Criminal Original Petition was filed on 20.5.1999.
25. Mr. Muhammad Nawaz Kasuri, learned counsel for Akhtar Rasool respondent No. 5, at the outset, made an unconditional apology before the Court on behalf of his client and threw him at the mercy of the Court. According to him, the conduct of his client' during the incident in the Supreme Court premises remained unblemished, inasmuch as, he did not enter the premises at the head of the crowd on 28.11.1997. He duly obtained pass for entry into Court Room No. 1 and when the pandemonium occurred outside, he was not present there. The learned counsel submitted that statement of Akhtar Rasool on oath before three-member Bench during inquiry proceedings, a copy of which is placed at pages 208-213 of the Paper Book, stood the test of scrutiny of all kinds and is in conformity with his and at every stage of the case. He submitted 'that Akhtar Rasool did not commit any act of rowdyism or, mischief which amounted to Contempt of 'Court. To reinforce his submission, he referred to the statement of PW-11 Zakaullah, the then Registrar of this Court, wherein the witness at page 384 stated:-- Q. "Is it correct that when Akhtar Rasool had met you for the first time in the lobby nothing untoward 'had yet happened in the Supreme Court."
109. A. "This is correct. I took him alongwith me to the public reception. I do not recall what actually Akhtar Rasool did later because there was lot of confusion. Perhaps I had asked some body to issue him a pass."
110. The learned counsel then referred to the statement of PW-2 Ch. Muhammad Ali, Assistant Commissioner Saddar, Islamabad, in which the witness had stated:- "There was one MPA Khawaja Saad Rafiq, who was requested to help in getting people expelled from there. I requested him because he perhaps know the people in the crowd. Apart from Khawaja Saad Rafiq, respondent Akhtar Rasool , was also requested to help us in getting the crowd dispersed. This would be about 10,45 a.m."
111. His precise submission was that from the above portions of evidence, it becomes crystal clear that his client did not take part in any act of rowdyism rather he helped the administration in getting the people dispersed from the driveway. The learned counsel next argued that no over act has. Been attributed to respondent No. 5 by any prosecution , witness, therefore, the learned three-member Bench had rightly acquitted him of. The charge of rowdyism. The learned Counsel contended that though he had done nothing mischievous still he hail tendered unconditional apology out of respect for the Court and had placed him at the mercy of the Court, therefore, he may be exonerated from the charge and his acquittal may be upheld.
26. Shahid Orakzai, appellant, who appeared in person, was heard for some time and allowed ten minutes to conclude his submissions keeping in view the fact that a contempt matter is between the Court and the contemner alone and a stranger has nothing to do with such proceedings as the role of an informer ends once the Court takes the cognizance of the matter at his instance. "Upon fixing of outer limit of time for his concluding address, he misbehaved in the Court, as a result whereof we were constrained to pass the following order restraining his entry into the Court premises:-- "The learned Attorney General for Pakistan has concluded his arguments in the titled appeal. In order to give hearing to Mr. Shahid Orakzai, who had moved an application against the impugned order of a three-member Bench of this Court and which application had been turned into an appeal, he was allowed to address the Court for ten minutes. He rose from is seat and took the rostrum. He started with irrelevant' matters. He was stopped to-refer to any such matter which has no nexus with the determination of the point involved. He became enraged and started misbehaving. It is not the first time that he has behaved in this manner. His conduct has always been to brow-beat the Courts in such like matters. He is in the habit of remaining in attendance in all such cases in which he has no interest nor has he ever been a party to such proceedings."
112. "2. We have, therefore, decided that Shahid Orakzai should be stopped from entering the Court premises for. a period of one month or till the conclusion of the case, whichever is earlier so as to avoid-, any obstruction in the course of justice. This is apart from any action that we may deem proper to take against him. Order accordingly.
113. "3. We direct the learned Attorney General for Pakistan and the Inspector General of Police, Islamabad to take appropriate steps for ensuring compliance of his order.
114. "4. We are not inclined to pass any order of the nature that we have done but we were compelled to do so on account of the offensive conduct of Shahid Orakzai displayed before this Court, which clearly interfered with the functioning of the apex Court. We have done so with reluctance but with the full awareness that it was in the interest of justice and to maintain the dignity and decorum of this Court. This is only a preventive order so that Shahid Orakzai does not repeat the same offensive conduct in future. No case, in which he is a party, shall be fixed during this period."
27. Be that as it may, pursuant to another application moved by Shahid Orakzai, we heard Mr. Muhammad Ikram Chaudhary, learned ASC on his behalf. He respectfully submitted that the attack on the Supreme Court building on 28.11.1997 was preplanned and there is sufficient material On record in the from of video films, photographs, newspaper cuttings, and the testimony of witnesses which fully establishes involvement of the respondents in the commission of contempt of this Court.
28. Attending to the plea raised on behalf of the respondents that 'they are not connected with the commission of contempt of Court, we are of the view that the this plea is also not sustainable. The reason is that after holding an exhaustive inquiry it appears that there is sufficient ground for believing that the respondents have committed contempt of Court and that it was necessary in the interest of effective administration of "justice to proceed against them. The substance of the charge in Writing was served upon them. They appeared in Court to answer the charge. They were informed of the ground on which they were, charged with contempt of Court and called upon to show cause why they should not be punished. An inquiry was conducted into the whole affair under the orders of the then Chief Justice by Abdul Rehman Khan, J. The respondents were prima facie found to be involved in or had aided or abetted or facilitated the acts of rowdyism and were charged with contempt of Court. The onus was, therefore, upon them to establish their innocence which they failed to do. We have minutely read the entire evidence and the material on record, which indubitably lead to the conclusion that the respondents were present at the time of incident and were guilty of the charges levelled against them. We are also unable to agree with the learned counsel that the previous statement of the witnesses recorded during inquiry proceedings were inadmissible in evidence. This Court held the inquiry in the matter through our learned brother Abdul Rehman Khan, J. He submitted a comprehensive inquiry report, which we have perused. We have also minutely considered the evidence recorded during trial as well as other material produced during the inquiry proceedings. The respondents were provided an opportunity to produce their on defence. This opportunity they failed to avail. We have Heard the learned counsel tor the parties at great length as well as the intervenor and his counsel and have come to the conclusion that the respondents had committed the contempt of this Court and rendered themselves liable to punishment as discussed in the preceding paragraphs. The plea is, therefore, rejected. It was also contended that this was not a fit case for exercise-of suo motu review in that the learned three-member bench had first had impression of the PWs coming before it, due weight has to be given to its opinion and reasoning. As discussed above, the. Impugned judgment is based on erroneous assumption, this is, therefore, fit case for exercise of suo motu review.
29. It may also be mentioned that the object and purpose of proceedings for contempt is not the vindication of the character or conduct of a Judge but to protect the Court from attack and to maintain in it the, confidence of the people in general and the litigant public in particular. The true ground for initiating such proceedings is the public interest in which all Judges, including the defamed Judge, are interested. The jurisdiction to punish for contempt is considered to be a special jurisdiction which is inherent in all Courts as an essential concomitant of their power to preserve order in judicial proceedings and to maintain the authority of law. Shariat also accords exalted position to a Court to ensure-supremacy of law, in that majesty of law cannot be maintained .Without keeping discipline and decorum of the Courts. Reference may be made to The State v. Sami Ullah (PLD 1999 Lahore 131), wherein it was observed:-- "Historically, the States and Courts of law are as ancient as orderly States. An organized State thrives on the civilized . Behaviour of its citizens and laws which are just and benevolent. In the scheme of organized State, Courts are the arbiters of disputes between citizen, inter se, and citizens and State. So, the fundamental obligation of Court is to keep scarless of justice ( even. The powers of the Courts to punish their contemner emanates from the above- sacred obligation. Majesty of Courts and Supremacy of Rule of law are synonymous with orderly States regardless of their form.
115. Hazrat Imam Ghazali in a famous work ( ) said, "A State can exist on ( ) but not on injustice" So is the paramount necessity of wholly independent and effective judiciary......"
116. It will also be instructive to refer to a passage from the celebrated work in this context namely '
117. Badaye' Volume VII' by Allama Abu Bakar Alauddin, which reads thus:- [(URDU TEXT)] In The State v. Muhammad Akbar Cheema {PLD 1993 Lahore 658)^ it was observed as under:-- "In Islamic Legal literature instances are not wanting where Judges awarded punishment to a contemner, e.g. In Abbaside period, a Judge of Wasif narcuid Saif-bin-Jabir, awarded punishment of imprisonment to a person who had shown disrespect by rude behaviour. On this Sulema nabi Sheikh, a scholar of the time represented to the Judge that he had punished him for his self and so he should be let of. The Judge remarked on oath that he did not imprison him for his on sake for if he had misbehaved otherwise than in his capacity as a Judge he would not have taken action against him and that he has been imprisoned for the sake of Muslims i.e. Society as when a Judge is not respected his decisions would also not be honoured............."
118. In the above report, it was further observed:-- "The majesty of law cannot be maintained without maintaining discipline and decorum of the Courts. If such a conduct is not curbed with heavy had, no judicial proceedings can ever be held.
119. The decorum of judicial proceedings is to -be maintained more for arriving at the truth and just determination of the litigated right or obligation. The respect that litigants, public in general and the lawyers extend to a Presiding Judge is also for the purpose of maintaining majesty of law. It is justice more than anything else which can ensure orderly society. It is the law Courts, presided over by independent Judges dispensing justice without fear or favour, which ensure independence of a country and with the freedom enjoyed by the Judges in the performance of their duties and functions, the independence of the country can be measured and judged."
120. In State v. Mujibur Rehman Shami (PLD 1973 Lahore 1), it was observed:- "As the object of proceedings tor contempt is not the vindication of the character or conduct of a Judge but to protect the Court from attack and to maintain in it the confidence of the people, particularly the litigants, the true ground for initiating such proceedings is. The public interest in which all Judges, including the defamed Judge, are interested "
121. In M. Inayat Khan v. M. Anwar (PLD 1976 SC 354), the following observations of Lord Denning have been quoted:- This is the first case, so far as I know, where this Court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise; more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our on dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we reason it. For there is-something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest.
122. Those who comment can deal faithfully with all that is done in a Court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy.
123. We must reply on our conduct itself to be its on vindication."
30. However, we are constrained to observe that in the instant case, the alleged contemners did not contain themselves within the limits of fair or even an outspoken comment but resorted to physical violence by breaking open the outer-gate of the Supreme Court and making force entry into the premises up- to Court Room No.-I. The fact that the acts of rowdyism were preplanned also adds to their gravity as the attack launched against the apex Court of this country has seriously shaken the confidence of the general public in the authority of the Court. In this view of the matter, the acts of rowdyism committed by the respondents herein are liable to punishment in order to deter such ambitious persons who have their on axes to grind in such events. It is also in the public interest that the administration of justice must be kept free from all extraneous influences so that public confidence in the independence and Impartiality of the Courts is not impaired and litigants are not deterred, in any manner, from seeking the enforcement of their legal rights through the Courts of justice. It is therefore, imperative that a balance should be struck between these competing demands of public interest and public policy. Nevertheless, while doing so, it seems to' the Court that this balance is only to be adequately ensured by allowing fair comment made in good faith and in the public interest on the working of the Courts or any of their final decisions after the expiry of the period of limitation for appeal, if any, and not by allowing physical attacks on the Courts, thereby jeopardizing the life of a Judge or putting the dignity and authority of the Court at stake. In Sir Edward Snelson's case (PLD 1961 SC 237), it was observed:- "Paramount importance which must be given by every organ of' a civilized Government, in which the administration of justices retained as an integral part of the machinery, to secure the Courts, and in particular the superior Courts of Record from all attempts to interfere with them in the administration of justice.
124. The power of committal for contempt is given to such superior Courts in order that they may swiftly and summarily perform one of their most important duties which is to protect themselves against wilful disregard or disobedience of their authority, by visiting with prompt punishment any conduct which tends to bring their authority and the administration of justice into scorn or disregard. It is evident that a Court of justice which has no power to vindicate its dignity or duty of vindicating its dignity would swiftly lose all hold upon the public respect and in consequence the maintenance of law and. Order through the agency of the Courts of justice would be rendered impossible. The dignity and authority of the Courts has a link with the supremacy and majesty of the law. Any conduct which is calculated to diminish that dignity or authority is a criminal contempt which a Court is under duty to punish. The Courts of justice are a creation of the sovereign authority, but their mainstay rests in the public confidence, and anything which is calculated to withdraw the public confidence from them has the character of a libel to be visited by action in contempt."
31. The questions as to who is an aggrieved party and what is the locus standi of a stranger to lay information before the Court regarding a matter which might amount to its contempt, drew a lost of controversy in the course of hearing of this matter. It is, therefore, appropriate to deal with this issue in some detail.
32. Mr. Sayeed, placed reliance on the book titled "Lavy of Contempt of Courts" 1999 Edition by Iyer, revised by Justice S.K. Mukarji, at page 403 and submitted that in a contempt case, the matter is between the Court and the alleged contemner and the role of the person who moves the machinery of the Court is restricted to bringing the matter to the notice of the Court certain facts constituting contempt of Court. Precisely, in a contempt proceeding, there are only to parties, namely, the Court and the contemner and it may be one of the reasons, which weighed with the Legislature for not giving right of appeal in a contempt matter. He submitted that it is only the contemner who has the right to file an appeal against the order of punishment and if the High Court declines to punish a contemner, appeal will not lie. In Ch. Zahoor Elahi v. Zulfiqar Ali Bhutto (PLD 1975 SC 383) it was observed:-- "..... It would be more appropriate to move the Court through he Attorney-General yet the application cannot be refused to be entertained on the ground that the petitioner is a total stranger to the proceedings pending in this Court. It can certainly be treated, in the absence of any rules or any law debarring such a stranger from making such an application as at least an information laid before the Court for its consideration. Whether the Court will act upon it or not is an entirely different matter. It will depend upon a variety of circumstances, such as, the seriousness of the matter, the nature of the offending speech or publication, the occasion on which it is made, the intention of . The maker and above all the bona fides of the applicant or informant. The Court must not allow itself to be used for settling private scores or vendettas and much less for. Gaining political advantages."
125. Reference may also be made to the case of Muhammad Ashiq v. Allah Bakhsh (PLD 1957 SC (Pak)
126. 293), wherein it was held:- "... That while the right of the state to move the Supreme Court under Article 160 of the Constitution, by way of appeal against an order of acquittal by the High Court admits of no doubt, it does not be understood that the Supreme Court has no ' jurisdiction to interfere with an order of acquittal by a High Court or another Court otherwise than upon appeal by the State. There are circumstances in which such an appeal may be clearly ' competent e.g. Where the prosecution was commenced and continued upon a private complaint." (p. 295) A.B "The Supreme Court will not, in a proper case, hesitate to interfere where the circumstances indicate that there has been a grave miscarriage of justice, by some disregard of the forms of legal process, or by some violation of the principles of natural justice." (P. 295) C.
127. "It is quite conceivable that these conditions might be satisfied in a case in which the State might not choose to move the Supreme Court against an order of acquittal, and it is, therefore, of great importance that the Court should not be understood to pronounce an absolute bar against, motions of this kind."'(p. 296) D"
33. In the context of the observations made in the proceeding paragraph, it seems necessary to dilate on the role of the Attorney General in a matter relating to contempt of Court. In the case of Ch. Zahur Ilahi (supra), this Court held, "although in such matters it would be more appropriate to move the Court through the Attorney General yet the application cannot be refused to be entertained on the ground that the petitioner is a total stranger to the proceedings pending in this Court...". In a situation wherein contempt of a Court has been committed, it is in accord with the desirable practice for the Attorney General to be concerned and to consider what course in the public interest he should follow. There may be cases where a serious contempt appears to have been committed but for one reason or another none of the parties affected by it wishes any action to be taken. In such cases, if the facts come to the knowledge of the Attorney General from some mother source, he will naturally himself bring the matter to the attention of the Court. Reference may be made to the case of Attorney-General v. Times Newspapers Ltd. (1973) 3 All ER 54), wherein Lord Reid observed :-- "I agree with your lordships that the Attorney General has a right to bring before the Court any matter which he thinks may ' amount to contempt of Court and which he considers should in the public interest be brought before the Court. The party aggrieved has the right to bring before the Court any matter which he alleges amounts to contempt but he has no duty to do so. So if the party aggrieved failed to take action either because of expense or because he thought it better not to do so, very serious contempt might escape punishment if the Attorney General had no right to act. But the Attorney General is not obliged to bring-before the Court every prima facie case of contempt reported to him. It is entirely for him to judge whether it is in the public interest that he should act."
128. Lord Morris at pages 69-70 of the report observed:-- "In the situation which presented itself I think that it was In accordance with desirable practice for the Attorney General to be concerned and to consider what course in the public interest he should follow. It was for the Attorney General to decide Whether to bring proceedings either in respect of the published articles or to seek to restrain the publication of the projected article though it would have been open to Distillers to initiate. Proceedings had they so decided. In considering the matter raised an Attorney General would with complete impartiality solely be considering the public.
129. Interest of maintaining the due administration of justice in all its integrity. I do not consider that when an Attorney General decides that he ought to bring a matter to the attention of am1 the consideration of a Court he is in any way identifying himself or his office with' interests of a party to litigation."
130. Lord Cross in the above report at page 87 observed:-- "........ Yet again, of course, there may be cases where a serious contempt appears to have been committed but for one reason or another none of the parties affected by it wishes any action to be taken in respect of it. In such cases if the facts come to the knowledge of the attorney from other source he will naturally himself bring the matter to the attention of the Court."
131. In the case of Sir Edward Snelson v. The Judges of the High Court of West Pakistan (PLD 1961 SC 237), Cornelius, CJ (as he then was), observed as under:-- "..... Whether or- not these defences were available to the Provincial Government is mere speculation in the circumstances, but it may be mentioned there that at the commencement of the hearing the Advocate General of West. Pakistan made a request to the Court for a week's adjournment "to enable the Principal Government to decide whether or not to appear in this case".
132. The Court rejected the request thinking that the Advocate General had enough of the hearing. Such notice was, as appears from ,the leading judgment of Mr. Justice Shabhir Ahmed, issued in compliance with a previous communicated decision of the Provincial Government that in contempt cases their Advocate General and other leading law Advocate General add other lead Law Officers would appear, in the High Court on behalf of the Court..."
133. In The State v. Maulana Abdul Rashid Tarkabagish (Supra), Rahman, J. (as he then was), observed:- - ".... Before parting with this case we cannot help remarking against that in these matters it is the State that should upheld the dignity and authority of the judiciary and it should not have been left to the judiciary to act suo motu in these matters. "
34. It is important to note that the matter of contempt of a Court is essentially between the Court and the contemner/s, therefore, it is up to the Court whose contempt has been committed to take any action against a contemner or accept apology on his behalf and even an Appellate Court .
134. Cannot direct such Court to proceed with the contempt or to reject the apology. It may also be clarified that where a third party (a stranger) brings to the notice of the Court that contempt of that Court has been committed, the Court can take notice on his complaint/application. However, entertainment of such application/complaint does not ipso facto give that person the right to prosecute the contemners on behalf of the Court as had been claimed by Shahid Orakzai in the present proceedings. From the analysis of the case-law regarding the role of the Attorney General in contempt matters, reproduced above, the matter is to be prosecuted by the learned Attorney General and once the Court has assumed jurisdiction in such a matter, the Court is not bound to hear the person moving the Court. Reference may be made to the case of West- Pakistan Water and Power Development Authority v. Chairman National Industrial Relations Commission (PLD 1979 SC 912), wherein it was observed:- "The matter of contempt is essentially between the Court and the contemner. If the Court concerned for reason Of its on and in the exercise of its discretion does not feel inclined to take any action or for example accepts an apology in a given case, it is not for another Court much less an Appellate Court or authority to direct the said Court that it must proceed in the matter or to reject the apology. This is on the principle that the power to punish for contempt is to be exercised only by the High Court whose contempt has been committed and not by any other Court.".
135. In Baradakanta Mishra v Mr. Justice Gatikrushna Misra, C.J. Of the Orissa H.C. (AIR 19/4 SC 2255), in paragraph 5 of the report, it was observed:- ".... It "has always been regarded as well-settled law that so far as criminal contempt is concerned it is a matter entirely between the Court and the alleged contemner. No one has a statutory or common law right to say that he is entitled as a matter of course , to an order for committal because the alleged contemner is guilty of contempt. All that he can do is to move the Court and draw its attention to the contempt alleged to have been committed and it will then be for the Court, if it so thinks fit, to take action to vindicate its authority and commit the alleged contemner for contempt. It is for the Court in the exercise of its discretion to decide whether or not to initiate a proceedings for contempt. Even if the Court is prima facie satisfied that a contempt has been committed, the Court may yet choose to ignore it and decline to take action. There-is no right in any one to compel the Court to initiate a proceeding for contempt even where a prima facie case appears to have been made out. The same position obtains even after a proceedings tor contempt is initiated by the Court on a motion made to it for the purpose. The Court may in the exercise of its discretion aceept an unconditional apology from the alleged contemner and. Drop the proceedings for contempt, or, even after the alleged contemner: is found guilty,, the Court may having regard to the circumstances, decline to punish him. So far as the contempt jurisdiction is concerned, the only actors in the drama are the Court and the alleged contemner. An outside party comes in only by way of drawing the attention of the Court to the contempt which has been committed: he does not become a part to the proceedings for contempt which may be initiated by the Court."
35. Reverting to the present controversy, since in the evidence recorded during the inquiry proceedings conducted by a three-member Bench of this Court it was found that 26 persons in all, including the respondents herein, prima facie, were involved in or had aided or abetted or facilitated the acts of rowdyism that had taken place in and around the Supreme Court premises on 28.11.1997, notices were directed to be issued to those persons calling upon them to show cause why action should not be taken against each of them for raising slogans against the judiciary and thus committing contempt of this Court. The above respondents/alleged contemners denied the charges and filed replies. Eventually, the learned three-member Bench framed charges against the present respondents for committing contempt of this Court. In the course of trial, the learned Bench recorded testimony of 21 witnesses and vide judgment under review acquitted all the respondents/alleged containers on the ground that the offence of contempt was not established against them beyond reasonable doubt.
36. We have scanned" the video cassettes, the one produced by PW19 Ardeshir Cowasjee (Ex.PW 19/1) and the other (Ex.PW 20/1) recorded- by the Closed Circuit Cameras installed at different places in the premises of this Court at that time. During the course of viewing Ex.P.W. 19/1, the following persons including some of the respondents whose faces had already been encircled and their names superimposed in the video film, were identified:--
(1) Mushtaq Tahir kheli,
(2) Mushahid Hussain,
(3) Ardeshir Cowasjee,
(4) Nasreen Jalil,
(5) Saifur Rehman,
(6) Saad Rafique,
(7) Ch. Tanvir Ahmad,
(8) Khawaja Muhammad Asif.
(9) Akhtar Rasool,
(10) Mian Abdul Sattar,
(11) Tariq Aziz,
(12) Najma Hameed.
33. With a view to determining whether the respondents herein were involved in or had aided or abetted or facilitated the act of rowdyism in and around the Supreme Court premises, Islamabad on 28.11.1997, we have come across the following portions of evidence in respect of each of the respondents. - In re: Tariq Aziz, respondent No. 2:
(1) During inquiry proceedings, Ardeshir Cowasjee (witness No. 1), submitted his affidavit which was ordered to be treated as a part of his statement (Exh. P/i). The operative part of Exh. P.I reads thus:- -
(i) "(1) That on November 27, 1997 I was present in the Supreme Court of Pakistan in Court No. 1 when the Bench headed by the then Chief Justice, Sajjad Ali Shah, comprising Justice Muhammad Bashir Jehangiri, Justice Mamoon Kazi, Justice Chaudhry Muhammad Arif and justice Munir A. Sheikh, was hearing the petition challenging the validity of the 13th Constitutional Amendment, when the Court proceedings were obstructed by the rowdyism and heckling of PML lawyers-, supporters and others."
136. "(2) That the above incident was fully reported in the national press of November 28, 1997 particularly in Dawn of that date, under the heading ' Rowdy scenes obstruct SC proceedings', and in The News of that date under the heading 'SC overturns order suspending CJ by majority decision' which appeared underneath a photograph with the- caption 'Islamabad Police enter the Supreme Court premises amid tension AFP wirephoto,' both attached hereto .As Appendix 1-A and 1-B."
137. "(3) That on November 28, 1997 I was present in the Supreme Court at Islamabad in Court No. 1 where the Bench of then Chief Justice Sajjad Ali Shah, comprising Justice Muhammad Bashir Jehangiri, Justice Mamoon Kazi, Justice Chaudhry Muhammad Arif and Justice Munir A. v Sheikh, was hearing' the contempt case against Prime Minister Nawaz Sharif and 11 other respondents when the Supreme Court building was stormed by the PML Senators, MNAs, MPAs, and office bearers, member of the Muslim - League Students Federation, workers of the ruling party and other supporters of the Prime Minister."
138. "(4) That I was witness to the obstruction of justice, the disruption of the working of the Court which forced the honourable Judges to adjourn the proceedings and leave the Courtroom."
(5) That on December 13, 1997 I wrote a letter to Chief Justice Amal Mian sending therewith a video cassette on which had been recorded scenes of the events of November 28, 1997, attached hereto as Appendix 2."
139. "(6) That I received a Notice dateline Islamabad March 14, 1998 from Syed Alamdar Hussain Shah, Assistant Registrar (Fixture) of the Supreme Court of Pakistan asking me to be present tn the Supreme Court at Islamabad on March 25, 1998 at 11.30 hours. "As his statement will be recorded in connection with the film he has sent, only for the purpose of identifying the persons in the film, unless he was himself present in or around the Court on 28th November, 1997:"
140. "(7) That in order to be precise in the identification of those shown on the video cassette participation in the storming , of the, Supreme Court building. I sought the cooperation of former media adviser to both prime ministers I Benazir Bhutto and Nawaz Sharif, Hussain Haqaani, and senior journalist Zahid Hussain of AP, the Times (London), and Newsline of Karachi."
141. "(8) That those identified beyond doubt have been listed, and this list alongwith the video cassette upon which had been superimposed the names of those identified and their images encircled, have been sent to the Additional Registrar of the Supreme Court of Pakistan at Islamabad and was received by him on the morning of March 19, 1998 together with my letter of March 18, 1998, copy of which is attached hereto as Appendix 3.
(9) That a more detailed and descriptive list of those identified is attached hereto as Appendix-4.
(10) That for the purpose of placing them on record copies of documents are attached hereto as listed in Appendix 5 attached hereto."
(ii) During trial, evidence of Mr. Ardeshir Cowasjee was recorded as PW-19, on 6.5.1999. He had already submitted a letter dated 13.12.1997 alongwith the list of the persons who were identified in the video cassette and whose faces were encircled and names superimposed on the cassette. The list, among others, includes the names of the following respondents:-
(1) Ch. Tanvir Ahmad, MPA (PML (N))
(2) Akhtar Rasool, MPA (PML (N))
(3) Tariq Aziz MNA; PML (N)
(iii) In reply to question: "Can you name the persons that you have identified in CC Camera film" Mr. Cowasjee replied during inquiry proceedings that apart from himself, there were Nasreen Jalil, M[QM Senator; Senator Saifur Rehman; MPA Saad Rafiq of PML, MPA Ch. Tanvir of PML; MNA Kh. Asif of PML; MPA Akhtar Rasool, PML, MPA Mian Abdul Sattar of PML; MNA Tariq Aziz of PML and Najma Hamid PML activist and friend of Kh. Riaz of PML, whom he had identified from C.C. Camera; "I do not know these friends of Kh. Riaz. They were identified by Mr. Hussain Haqqani."
(iv) Tariq Aziz, (witness No. 2), during inquiry proceedings, explained his position as under:-- "On that day for the first time in the history of Pakistan the Prime Minister was coming to appear before the Supreme Court. I am a. Member of PML (N) and also on MNA of that party. As lacs of other persons, if had been possible would have liked to be present on this historical occasion it was my moral as well as political duty that when my leader appeared before the Supreme Court I should also be present. on that day at about 9.30 a.m. I alongwith MNA Mian Muhammad Munir, had come to Supreme Court from new Federal Lodges.. "
142. "..... At that time I heard some noises and I saw some , people coming from outside and going towards the Court Room. We tried to stop the people coming up. At about that time I saw one sign board ( ) hanging near the stairs and without thinking / tried to fix the board but could not do so..."
143. (The underlining is ours).
144. "... I may add that I am a person who has never taken the law in my hands. I have broken the law twice and that was during the Martial Law.."
(v) Mian Muhammad Munir (witness No. 3.) during inquiry proceedings stated:- "I alongwith MNA Tariq Aziz had left newly built Federal Lodges at about 9.30 a.m. On 28.11.1997...."
145. Then MPA Akhtar Rasool accompanied the Registrar to his office so that the needful could be done.
146. After some time we heard some noises and we were told that the outer gates of the Supreme Court had been broken...." "Some among them were raising slogans."
(vi) Saifur Rehman (witness No. 6), during inquiry proceedings, deposed as under:-- "When we reached near the stairs which went up to, the Court room No. 1, we saw 20-30 people there. When I when up I saw a person standing with a sign board apparently taken of from some place of the Court and catching in his hands above his head."
147. The above statement be viewed in the context of the statement of Tariq Aziz to the effect: "I tried to fix the board but I could not do so...", as cited above.
(vii) Saifur Rehman, in his written statement (Ex. P-6/1), stated as o under:- "I witnessed 30 to 40 persons standing on the staircase leading to Court Room No. 1. They were raising slogans, v There I saw some parliamentarians."
(viii) Syed Khurshid Ahmad Shah, in his written statement, (Exh. 35/1), stated as under:- "The journalists who appeared quite disturbed, told us that most unruly and unprecedented incident has occurred today as leaders and workers of PML (N) including Senator Saifur Rehman, Minister Mushahid Hussain, Tariq Aziz MNA, Rao Qaiser MNA, Akhtar Rasool MPA and Senator Pervaiz Rashid and others forced there way inside the Supreme Court Building and broke the doors and attacked the Supreme Court".
(ix) Syed Naveed Qamar (witness No."36) in his written statement (Exh. 36/1), during inquiry proceedings, stated as under:- "We heard-announcement on loud speaker coming from a bus that all the workers should proceed to Punjab House to have lunch. When we reached in front of the Supreme Court Building, some journalists coming out of the Supreme Court signaled us to stop. The journalists who appeared quite disturbed, told us that most unruly and unprecedented incident has occurred today as leaders and workers of PML (N) including Senator Saifur Rehman, Minister Mushahid Hussain, Tariq Aziz MNA, Rao Qaiser, MNA, Akhtar Rasool, MPA and Senator Pervaiz Rashid and others forced there way inside the Supreme Court Building and broke the doors and Attached the Supreme Court."
(x) Abid Ali, then ADC(G) Islamabad PW-10) during trial deposed as under:-- "I remember to parliamentarians whom I had requested. One was Khawaja Asif and other was Tariq Aziz, who was sitting on a chair. They helped us.
(xi) Mr. Zahid Hussain, a journalist, (witness No. 13), during trial deposed as under:- "I do not remember the exact time when I came out of the Courtroom. There was total chaos outside the Courtroom in the hall; the mob, was roaming around. Flower pots were broken. I saw that the security had totally broken down. I went around and I also saw Tariq Aziz." in re: Mian Muhammad Munir:
2. (i) In his statement during inquiry proceedings respondent Tariq Aziz (witness No. 2), while explaining his position, stated that, "on that day at about 9.30 a.m. I alongwith MNA Mian .
148. Muhammad Munir, had come to Supreme Court from new Federal Lodges...."
(ii) In Annexure-I, which is a. Report appended to the letter sent by Javed Akram/the then Chief Commissioner,' Islamabad a list has been given of persons who had been identified and interrogated but were not arrested in case FIR No. 229, dated'28.11.1997. The name of an Muhammad Munir is also included in that list.
(iii) Mian Muhammad Munir appeared as witness No. 3 during inquiry proceedings and vide his statement before the Court he had admitted his presence in the Court premises on the fateful day.
149. In re: Ch. Tanvir Ahmed
3. (i) Ch. Tanvir Ahmad appeared as witness No. 9 during inquiry proceedings. In his evidence he admitted his presence in Court inter alia stating therein that he alongwith his friends Ministers/MPAs was able to find seats in Courtroom No. 1.
(ii) Mr. Ardeshir. Cowasjee, in his affidavit Ex.P/1 stated that he had identified Ch. Tanvir Ahmad of Pakistan Muslim League from closed circuit camera film and had mentioned his name in the list of persons whom he had identified in the video cassette, whose names were circled and superimposed on the cassette.
(iii) Muhammad Ilysa PW-12, during trial proceedings, in his statement at page 386 of the Paper Book has stated that "I came on duty at 8.15 a.m. On that day. Amongst parliamentarians whose passes were checked by me, I remember the names of to of them, namely, Akhtar Mahmood and Ch. Tanvir Ahmad, MPA."
(iv) Following question was put to witness No. 48 Muhammad Ilysa Farooqui, during inquiry proceedings:- Q. How many people were in the crowd?
150. A- Around 50.
151. He further Reposed "On the banners and on the flags word "MSF" was written. I did not recognize anyone amongst the crowd which had come. There were no leaders whom I recognized. They were all young people. At the time the crowd had come up, there were 30 policemen in the lobby next-to Courtroom No. 1.
152. They were armed with sticks (lathis). The crowd was outside Courtroom No. 1 for about 15 minutes to half an hour. We had go Court doors closed from inside. The crowed was raising slogans. Then Kh. Asif and Ch. Tanvir came out of the Court and they were able to get the crowd to got out. The crowd then went away raising slogans."
(v) In Annexure-I, which is a report appended to the letter sent by Javed Akram, the Chief Commissioner, Islamabad, a list has been given of persons who had been identified and were to be interrogated in case FIR No. 229, dated 28.11.1997. The name of Ch. Tanvir Ahmed, is also included in that list.
(vi) Altaf Hussain Bhatti (Witness No. 24) (PW-14); during inquiry proceedings deposed as under: "I have brought a statement with me, which is signed by me: The statement runs into seven pages.
153. Whatever is stated in the statement is correct. I produce my statement as Ex. 24/1.1 am Chief Reporter of Daily Lashkar and Daily Asas. Both are dailies which case out from Rawalpindi, I have also brought copies of newspaper Daily Pakistan dated 28.11.1997 and copies of daily 'Asas' dated 28.11.1997 and 29.11.1997 and which are produced as Ex. 24/2, (Pakistan) 24/3 and 24/4 (Asas).
154. Reference to the news in these issues of newspapers has been made by me in my statement, Ex.
155. 24/f. Whatever information I had, I have mentioned the same in my statement in writing."
(vii) Altaf Hussain Bhatti witness No. 24, during inquiry proceedings at page 35 of the Paper Book stated:- {{URDU TEXT }}
(viii) Kh. Muhammad Asif appeared as witness No. 7 during inquiry proceedings. His statement at page 191 of the Paper Book read thus:-- Apparently those people who got inside were in aggressive mood, I and other MNAs tried to stop the people from climbing railings but we did not succeed in these efforts. Thereafter other people were able to come inside I may say they were not more than 25 to 30 people who had i, come upstairs next to the door of Court room No. 1. I also came upstairs and employed all methods including begging to those people to go away. Then I got a table which was placed next to the door of Court room No. 1. And pleaded with my hands folded and also begged the crowd to go away and not to create any untoward situation."
156. In re: Akhtar Rasool.
4. (i) Akhtar Rasool, respondent during inquiry proceedings, in his statement at page 208 of the Paper Book, as Witness No. 10, stated:-- "I did not attend proceedings of the Court during the days in question. I had only gone to the Court on 28.11.1997.,."
(ii) Mr, Ardeshir Cowasjee in his statement recorded during inquiry proceedings stated that he had identified Akhtar Rasool of Pakistan Muslim League and had mentioned his name in the list of those persons whom. He had identified in the video cassette and whose names were circled and superimpose the cassette.
(iii) Altaf Hussain Bhatti witness No. 24, during in proceedings at page 35 of the Paper Book P.
157. Stated thus: [(URDU TEXT )]
(iv) Saifur Rehman (witness No. 6) in his state during inquiry proceedings, deposed as under:-- "I saw the door of Court room No. 1 was closed. I could not get inside but then there was an official of the Court sitting next to the door of the Court and. I asked him to let me in. He then knocked at the door and the door was opened and alongwith me 4/5 other persons were able to get inside including MPA Akhtar Rasool."
(v) Humanyun Khan Jadoon son of Yaqoob Khan (Witness No. 46), in his statement at page 317 of Paper Book stated:- "About 50 people had gone up. They were raising slogans and hurling abuses. They were raising slogans and hurling abuses against the then Chief Justice Sajjad Ali Shah Sahib. They stayed there for about 20/25 minutes. As I have stated in Ex.P. 46/1, Khawaja Asif and Akhtar Rasool and others were able to got them to go out and down. Whatever Mr. Akhtar Rasool would say, the "young persons who were in the crowd, would listen. Even Mr. Saif-ur- Rehman had asked Akhtar Rasool to get these people moved out. ........ I say that I have read in the newspapers that Akhtar Rasool who had appeared before this Court and had given statement had also stated that I had thanked him for what he had done. I say that this is incorrect. I did not thank Akhtar Rasool."
(vi) Zahid Hussain, a Journalist (witness No. 3T). In his written statement (Exh. 31/1), stated as under- - "During the last week of November, 1997, I was in - Islamabad. On November 28, I arrived outside he Supreme Court at around 9.45 hours. A substantial crowd had gathered in front of the main compound gates which were shut. They were shouting slogans and waving flags, and the guards refused to open the gate. I stood there whilst the crowd kept on and on chanting slogans against Chief Justice Sajjad Ali Shah and President Farooq Leghari ('Leghari kutta hai hai', Sajjad kutta hai hai') and some of them in favour of Prime Minister Nawaz Sharif. They made attempts to push the gates open and after a while some started climbing over the gates. The guards tried to stop them, but finally they succeeded in " pushing open the gates and around 100 persons rushed towards the Court building- "I did not recognise the leaders of the mob, but when I asked some of the mob members they pointed out to me and named Saad Rafiq and Rao Qaiser. As if they were celebrating a victory, the mob rushed towards the main entrance doors of the "Court building which were closed and pushed them open. 1 went in with them. They rushed in chanting and shouting, heading for Courtroom No. 1................... "
158. ".... The. Courtroom door was then opened and as Cowasjee and I were let in Senator Saifur Rahman came out ,of the Courtroom, shouting 'Who is stooping them? Let them come in." Ardeshir Cowasjee and I entered the Courtroom, closely -followed by Journalist Fakhr Zaman who shouted to the Judges. They are coming to get you.' By then a section of the mob had also entered and there was total chaos in -Courtroom. Then I saw Justice Sajjad Ali Shah conferring with the other Judges and they all arose and left. There were many Muslim League members and supporters there, all shouting. Prominent amongst' them was Mushtaq Tahir kheli who confronted me and others journalists, shouting and abusing us whilst trying to justify the mob attack. Senator Aurangzeb, MPA Akhtar Rasool and an MPA from RWP were also prominent. There were a lot of people who I could not recognize. Some of Muslim League supporters grabbed Fakhr Zaman and manhandled and abused him. Senator Iqbal Haider who was also in the Courtroom was also manhandled. The whole scene was like a rowdy disorganised victory celebration.
(vii) Naveed Miraj, a journalist, appeared as Witness No. 33 and following question was suggested to him by DAG at page 273: Q. In Paragraph 2 on page 2 of Ex. 33/1 you have mentioned that a few police officials tried to restrain the crowd and the SSP and ADC restrained the police force etc. To do so. Can you give the names of those officers?
159. A. If I am correct, SSP was Mr. Altaf and the ADC was Mr. Imtiaz. I saw them outside the Supreme Court building. I saw them in front of the outer gate.
160. In his written affidavit (Ex. 33/1) at page 58 of the Paper Book- 11, the above witness stated:- "A couple of hundred people in a charged room had assembled on the constitution avenue in front of the main gate of the SC building. The crowd also included lady workers of the PML (N). These people were carrying flags of Pakistan Muslim League and were chanting slogans in: favour of the Prime Minister Nawaz Sharif and against the then Chief Justice of Pakistan Sajjad Ali Shah... I preferred to stay outside and not to try my luck with a highly charged crowd. I also spotted a few Muslim league leaders amongst the crowd. Rao Qaiser Ali, MNA was prominent amongst them. As I moved around in the crowd I heard some people s claiming that the crowd, had come there fully prepared and there were some activists who were armed."
161. "There was large number of police personnel present at the spot. The security people at the gate were not allowing anyone to enter the building without entry passes. Rao Qaiser Ali, MNA was first who Jumped over the fence to enter the building. He also urged other Muslim League workers to follow him. Thereafter a large number of Muslim league workers barged into the building breaking the gate. The police force present at the occasion did not try to stop the gate crashers. A few police constables tried to resist the crowd but Additional Deputy Commissioner General and the SSP Islamabad restrained the Police force and allowed the crowd to move towards the Court Room .
162. No.1.
163. "As the crowd entered the main entrance I also followed them. They raised full throated slogans as they entered. They rushed towards the Court Room No. 1 where a bench headed by the then Chief Justice of Pakistan was hearing contempt petition against the Prime Minister. I had not reached the Court Room when I heard that the hearing had been adjourned after some of the ruling party activists had reached near its entrance "
164. ".... In the meanwhile some of the Muslim League leaders mostly belonging to Punjab which included, Akhtar Rasool, Saad Rafiq and some other whom I do not recognise. Party activists who were raising slogans in the presence of the leaders. These leaders led the workers out of the building. I could not recognise many of the activists because most probably those belonged to Lahore."
(viii) Syed Khurshid Ahmad Shah (witness No. 35) in his statement at page 281 of the Paper Book deposed:-- "(c) We heard announcement being made on loud speakers when we had reached near the Supreme Court premises that all workers to proceed to Punjab House to have lunch. I have mentioned about this in Para-1 of my statement in writing. Punjab House is a Government property and if people are being asked to have lunch there, it shows the involvement of the Government."
(ix) The above witness in his written statement (Exh. 35/1) stated as under:-- "The journalists who appeared quite disturbed, told us that most unruly and unprecedented incident has occurred today as leaders and workers of PML (N) including Senator Saifur Rehman, Minister Mushahid Hussain, Tariq Aziz MNA, Rao Qaiser MNA, Akhtar Rasool MPA and Senator Pervaiz Rashid and others forced there way inside the Supreme Court Building and broke the doors and attacked the Supreme Court."
(x) Syed Naveed Qamar (witness No. 36) in his written statement (Exh. 36/1), which is available. At pages 109-110 of Part-II of the Paper Book.
165. "We heard announcement on loud speaker coming from a bus that .All the workers should proceed to Punjab House to have lunch. When we reached in front of the Supreme Court Building, some journalists coming out of the Supreme Court signaled us to stop. The journalists who appeared quite disturbed, told us,, that most unruly and unprecedented incident has occurred today as, leaders and workers of PML (N) including Senator Saifur Rehman, Minister Mushahid Hussain, Tariq Aziz MNA Rao Qaiser, MNA, Akhtar Rasool, MPA and Senator Pervaiz Rashid and others forced there way inside the Supreme Court Building and broke the doors and attacked the Supreme Court."
(xi) Zahid Hussain, journalist (PW-13) during trial, while deposing at page 390 of the Paper Book stated:- ".... They were chanting slogans against the Chief Justice Sajjad Ali Shah, President Faruq Leghari and in favour of the Prime Minister Nawaz Sharif. "
166. "After about 15/20 minutes I saw the crowd coming to the outer, gate and started shaking the gate.
167. I recognised one Rao Qaiser MNA. There were some MPAs, but I do not know their names. There were some activists of Muslim League Youth....... "Some of them from the crowd scaled over the gate and then the mob broke the gate. The security 'could not control them. Being in the crow I also went inside. When they entered the premises the slogans became much louder. They also broke down the gate of the building."
168. The above witness, in his statement, further stated at page 391 as under :- "... Then the door of the-Courtroom opened and there emerged. Senator Saifur Rehman. He came out and I heard him saying "Why are you stopping them, let then come inside". (Subject to objection). Myself and one Turkish Correspondent by the name of Fakhar entered the Courtroom.
169. Some people from the crowed also went inside the Court room. Then there was pandemonium in the Courtroom. At that time the Court was in session. Some of the Muslim League Leaders, who were already sitting inside, stood up and started shouting. I could recognize to of them. Senator Aurangzeb and Mushtaq Tahir kheli. Another one of them as Akhtar Rasool."
170. At page 393, Mr. Zahid Hussain (PW-13) stated as under:-- "All those who were interviewed, justified the action. (Subject to objection). Then I heard somebody shouting, "Let us go to Punjab House". (Subject to objection). And somebody said "Shahbaz Sharif was waiting for us and food will be served there".
(xii) Cross-examination of Mr. Zahid Hussain journalist the following questions at page 394 of the Paper Book:- Q. You have not mentioned the name of Akhtar Rasool in your statement recorded on Oath on 19.5.1998 in any context.
171. A. I see my statement on oath. This is correct. However, I had also filed a statement in writing on that day before the Court and the name of Akhtar Rasool appears in that statement.
172. Q. Did you mention in your statement on Oath dated 19.5.1998 that you had heard that "food will be served in Punjab House?"
173. A. This is correct.
174. Q. Is it a fact that after 5-1/2 months you concocted this story with ulterior motive?
175. A. This is absolutely incorrect.
176. Q. You have mentioned in your examination-in-chief that you had seen Akhtar Rasool inside the Court Room No. 1 on 28.11.1997. What would be the time when you saw him?
177. A. I do not remember the time when 1 saw him, but it was when there was pandemonium in the Courtroom.
178. Q. Was it before or after the Court had arisen?
179. A. I saw him after the Court had arisen. I may add that after one 'or to minutes of our entering the .
180. Courtroom. The Court had arisen.
181. Q: Did you see Akhtar Rasool talking to others inside the Courtroom?\ A. As I said about Mushtaq Tahir kheli, I also saw Akhtar Rasool standing and talking to other people. He was one of the most prominent people.
182. In re: Akhtar Mahmood.
1. (i) Altaf Hussain Bhatti (PW-14), in his statement/Affidavit (Exh.24/1), at pages 33-39 of Part-II of the Paper Book stated :-- [(URDU TEXT)] This witness also placed oil record a copy of Daily Newspaper "Asas" dated 29.11.1997, showing a photograph in which Sardar Muhammad Naseem, and Akhtar Mahmood, are leading the mob and making victory signs with their hands.
(ii) Mr. Muhammad Ilysa (PW-12) in his statement at page 386 of the Paper Book stated that he remembered the name of Akhtar Mahmood, among others, whose passes he had checked.
(iii) Kh. Muhammad Asif (witness No. 7) during inquiry proceedings, in his statement on record stated at pages 190-193: "Apparently those people who got inside were in aggressive mood".... "I may say they were not more than 25 to 30 people who had come upstairs next to the door of Court Room No. 1...."
(iv) Zahid Hussain, journalist (witness No. 31) in his written statement (Exh. 31/1.) at page 55-56 of Part-II of the Paper Book, stated as under :-- ".... The Courtroom door was then opened and as Cowasjee and I were let in Senator Saifur Rahman came out of the Courtroom, shouting 'Who is stopping them? Let them come in." Ardeshir Cowasjee and I entered the Courtroom, closely followed by Journalist Fakhr. Zaman who shouted to the Judges: They are coming to get you.' By then a section of the mob had also entered and there was total chaos in courtroom. Then I saw Justice Sajjad Ali Shah conferring with the other Judges and they all arose and left. The were many Muslim League members and supporters there, all shouting.
183. Prominent amongst them was Mushtaq Tahir kheli who confronted me and others journalists, shouting and abusing us whilst trying to justify the mob attack. Senator Aurangzeb, MPA Akhtar Rasool and an MPA from RWP were also prominent. There were a lot of people who I could not recognise. Some of Muslim League supporters grabbed Fakhr Zaman and manhandled and abused him. Senator Iqbal Haider who was also in the Courtroom was also manhandled. The.
184. Whole scene was like a rowdy disorganised victory celebration," in re: Shahbaz Goshi.
1. (i) Altaf Hussain Bhatti (PW-14), in his statement/Affidavit (Exh. 24/1), at pages 33-39 of Part-II of the Paper Book stated :-- [(URDU TEXT)]
(ii) In Annexure-I appended to the report submitted by Javed Akram, the Chief Commissioner, Islamabad, a list has been given of persons who had been identified and' interrogated but were not arrested in case FIR No. 229, dated 28.11.1997. The name of Shahbaz Goshi is also included in that list.
185. In re: Sardar Muhammad Naseem
1. (i) Altaf Hussain Bhatti (PW-14), in his statement/Affidavit (Exh.24/1), at pages 33-39 of Part-II of the Paper Book stated:- [(URDU TEXT}} This witness also placed on record a copy of Daily Newspaper "Asas" dated 29.11.1997, showing a photograph in which Sardar Muhammad Naseem, and Akhtar Mahmood, are leading the mob and making victory signs with their hands.
(ii) Mr. Fakhar-ur-Rehman (PW-16) at page 404 of the Paper Book # during trial, in his statement stated as under:-- "Thereafter the main gate was forced open. It would be , 10;30 a.m. I came alongwith the demonstrations into the premises of the Supreme Court. I went inside Supreme , Court building and I saw the reception area full of the people: I took the way leading to Court room No. 1. I was going to Courtroom No. 1 and turning back saw that mob was also coming behind. I saw people rushing. I took to my heels and came to Courtroom No.1. As soon as I entered the Courtroom I addressed the Bench which was hearing the case saying that "mob had entered into the Court premises and police should take the Judges into custody". As soon as I said these words I was punched, kicked slapped on the head, face and back. I was entirely scared."
186. "Inside the Courtroom Mushtaq Ali Tahir kheli, Aurangzeb Khan and Sardar Muhammad Naseem wanted me to be handed over to. Them but then I was rescued by Faraz Hashmi, Umar Faruq and Muhammad Aslam Khan and other Journalist. I was first beaten up by Sardar Naseem and then I was rescued by the said Journalists."
187. During cross-examination following questions were put to PW- 16:- Q. It is correct that names of Mushtaq Ali Tahir kheli, Sardar Aurangzeb and Sardar Naseem became known to you through newspapers.
188. A. Through Newspapers; (volunteered) and through journalists and friends,
38. Reference may also be made to some pieces of evidence from the available record, showing the presence of the respondents at the scene of occurrence. These pieces of evidence have been taken from the evidence taken during inquiry proceedings as well as the trial.
1. (i) Syed Mushahid Hussain, (witness No, 8) in his statement on record at pages 194-201 of the Paper Book, during inquiry proceedings, deposed as under:-- "..... I remember people shouting slogans against Mr. Justice Sajjad Ali Shah and I tried to tell them not to do so because of our respect for the judiciary and its sanctity.
(ii) Muhammad Ashiq Farooqui, DSP (Witness No. 41), in his statement at pages 301-303, deposed as under:-- "I have mentioned about the crowd estimate at about 2,000, 2,500 to 3,000. They were raising slogans, and about .60 to 70 persons went inside.... "
189. In his written statement (Exh. 41/1), at pages 124-125 of Part-II of the Paper Book he also deposed as under :-- "On our directions the police force tried to stop the protectors (2500-3000) who were raising slogans but all of sudden crowd with full force broke the chain of the main gate and about 60/70 persons went inside the . Supreme Court however we succeeded in stopping the other protesters at the main entry gate.
(iii) Mr. Muhammad Zakaullah, ex-Registrar, Supreme Court of Pakistan, (witness No."43), in his written statement at pages 132 of Part-II of the Paper Book stated as under:- ".... Suddenly, noises were heard and an unruly mob of 40/50 persons forced their way inside the hall. tried to stop them but was jostled .Aside. They were raising slogans and carrying flags. They rushed towards Courtroom No. 1 with a group of press photographers in pursuit, who otherwise were not allowed to enter the Court building."
(iv) Amirullah Khattak son of Malik Taj Muhammad Khan, (witness No. 45), during inquiry proceedings at pages 321-322 of the Paper Book deposed as under:- "Those people who had come up were raising slogans. They were raising slogans and hurling abuses. Slogans were against the then Chief Justice and in favour of Mian Nawaz Sharif. The people were holding Muslim League flags. Most of them were young people...."
(v) A question was put to Mr. Ghulam Ahmed Bilour (witness No. 28) at pages 263-264 of the Paper Book, to which he stated as under :-- "Q. You were there outside the building and on the passage between the gate of the building and the outer gate of the premises. Did you identify any person in the crowd?
190. "A. Apart from my colleagues, I did not identify any person.
(vi) Syed Khurshid Ahmad Shah (Witness No. 35), in his written - statement (Exh. 35/1), at pages Nos. 106-107 of Part-II of the Paper Book, stated:- "2. That while standing there were noticed wall posters - attached to the Supreme Court compound iron railing and banners and posters hanging on the trees, bearing most insulting and abusive slogans against the Supreme Court as . Well as its Chief Justice.".... "I questioned these persons as to why are they stopping my driver from removing these posters. They said that these posters have been hanged under orders of their leaders PML (N)."
191. Daily "Asas" dated 29.11.1997 which was brought on record by Mr Altaf Hussain Bhatti (witness No. 24) during inquiry proceedings, shows a poster hanging on the outer grill of Supreme Court Building on which the following slogan against the then HCJ was written: [(URDU TEXT}} In Daily "Pakistan" dated 28th November, 1997, a copy whereof is placed ' on record as (Exh. 24/2), a news item was published to the effect that today Muslim League will slow its power in .Front of the Supreme Court building, text whereof reads thus:- [(URDU TEXT}} In Daily "Asas" dated 28th November, 1997, a copy whereof is placed on record, as Exh. 24/3, a news item under the following caption was published:- The same Newspaper, in its issue of 29th November,' 1997 (Exh. 24/4), published a news item on its front page, showing the acts of rowdyism in and around the Supreme Court premises Which reads as under:- [(URDU TEXT}} Daily "The News" dated 29th November, 1997 (Exh. No? 34/3), published a news-item, with the following caption:- "CJ seeks army's protection as mob storms SC"
192. Under this news-item there is a photograph showing that workers of Pakistan Muslim League are scaling aver the main gate of the, Supreme Court building. At page 2 of Exh. 34/3 the details of rowdyism stands reported as below:-- "Hurling, abuses at Chief Justice Sajjad Ali Shah, the crowd went all the way m Courtroom No. 1 and would have entered it but the room was locked from inside and the Judges had also left. The mob tore of a wooden plaque-identifying the Court room and threw it away. The crowd also threw flower pots on the floor and stamped at them.
193. "PML flags, banners of the Musliha Students Federation, poster size pictures of Prime Minister Naw&z Sharif and other posters and banners were unfurled inside the Court building.
194. "We are the soldiers of Nawaz Sharif, throw the ...CJ out," chanted the Muslim League zealots as the Court security staff looked at the police for support.
195. "But the policemen acted as silent spectators, showing little inclination to stop the onslaught of the unruly mob.
196. "A journalist, fakhar-ur-Rehman of the Turkish daily Zaman. Tore away from the crowd and barged into the Courtroom to warn the Judges that PML supporters had raided the Court.
197. "This annoyed Sardar Saleem (Sardar Naseem), a PML member of the Punjab Assembly, and Senator Raja Aurangzeb who attacked the journalist with other supporters of their party. They pushed and punched him and dragged him outside the Courtroom. Faraz Hashmi of Dawn and other journalists rescued him. The Court staff later took him away from the PML supporters to the Assistant Registrar's office.
198. "The mob stayed-outside the Courtroom for almost half an hour, chanting slogans and dancing.
199. When PPP's Senator Iqbal Haider came out of the Courtroom, some PML enthusiasts , attacked him as well. He received' several punches on his body before he was rescued by PML legislators.
200. "Senator Saifur Rehman and other senior PML leaders were also in the Court as it happened. They tried to calm the crowd but for a while the workers refused to listen to them. The mob dispersed only where they realised that the Judges had already left. Those leading the crowed were so excited that they were dishing out their names to journalists.
201. "Local reporters recognised MPA Khawaja Saad Rafique, who is also President of the Muslim League youth wing,, and Major (retired) Rasheed Warraich of Hezbullah, a local outfit not connected with the one in Lebanon.
202. "Others identified Themselves. They were Samiullah Chaudhry, MPA, Shafique Khan, Vice President PML Youth Wing, Punjab, Mirza Mansoor Baig, Divisional President, Rawalpindi Youth Wing, Mian Ghulam Hussain Shahid, Raja Ashfaque Sarwar, MPA, Noman Butt, Gujranwala, Chaudhry Safdar Rahman, Malik Sabir Hussain, City President Labour Wing, Pindi. "
203. In the above newspapers there are several photographs showing the acts of rowdyism in and around the Supreme Court building. In these photographs Some of the respondents herein have also been shown making victory-sign with their hands, some other leading news papers also published photographs showing the acts of rowdyism in and around the Supreme Court premises, which have been placed on record. Syed Iqbal Haider (witness No. 34), produced a copy of monthly "Herald" of December 1997 (Exh. 34/7). At page 42 of Exh. 34/7, there is an article under the heading "The End of Civility", available at page 93 of Part-II of the Paper Book with to photographs showing Muslim League workers scaling' over the main gate of the Supreme Court building and Akhtar Rasool-respondent present at the entry gate of Court Room No. 1. Page 42-a of the. Magazine available at page 94 of Part-II of the Paper Book, covered the events of the 28th November, 1997.
204. Relevant portion reads thus:- "The doors to the entrance of the Courtroom were locked and the police did not allow anybody, even journalists, to leave the room. One could still hear the shouting outside where some . Over- zealous PML(N) leaders were heading a small crowd.
205. Somebody ripped the plaque reading "Court No. 1" of the wall and the actor-turned-politician Tariq Aziz, of Neelani Ghar fame, held it high in the air as if it were some kind of trophy.
206. "Outside the Courtroom door, the head of the Ehtesab Cell, Senator Saifur Rehman, was busy threatening the police. "To see how the doors are not opened," he challenged. Once, the doors were opened from-the outside, all hell broke loose. A crowd surged into the small passageway that' leads into the Courtroom. It was nothing short of a stampede. Those standing in the passageway were mercilessly shoved out of the way.
207. "In a matter of minutes, hordes of angry matwalas had occupied the various corridors of the Supreme Court building while the police looked on indifferently. The police had .Made little attempt to prevent the Muslim League MNAs and MPAs from climbing over the iron gate or to stop the crowd from finally breaking it open. So much for the riot gear which remained untouched. Since the miscreants were Muslim League supporters, it seemed that no one was willing to take the risk of incurring the government's 'wrath. That the sanctity of the highest judicial authority in the land was being blatantly desecrated by a ruling party was not a cause for concern' for anyone. PML(N) leaders, wearing triumphant smiles, strutted around the Court house while, outside, their supporters exploded fire-crackers in jubilation."
208. "The PML(N) had won the day-the trial against Nawaz Sharif had been forcibly adjourned. And the shameful forces of violence and coercion had been victorious, even if only for that one day."
39. It will not be out of context to refer to the following extracts from the Interview of former Chief Justice Sajjad Ali Shah, given to BBC, which reads thus:-- Interview of Former Chief' Justice Sajjad Ali Shah: It (relationship) was not very cordial, of course.
209. There were several complaints and several cases (against the Prime Minister) which were being heard and the Prime Minister did not want' me to hear those cases. He was under the impression that as Prime Minister he was exempted from the proceedings in the Court and the Court should not hear cases. So this was the point of difference. I told him that his was not the correct view because there is no discrimination in the eyes of law.
210. Background commentary: The Chief Justice's felt his fears were justified when pro-Sharif demonstrators stormed the Supreme Court and the police stood aside.'
211. Sajjad Ali Shah: They were raising slogans against m$, and accusing me. They had burnt my effigy outside and holding banners against me. I think they were saying that I am the enemy of the Prime Minister.
212. Background commentary: A case that could have led fo the Prime Minister's dismissal was abandoned. The Chief Justice claimed that the mob, which included members of the Parliament, was politically organised.
40. Mr. Tanvir Bashir Ansari, learned Deputy, Attorney General, filed' a statement in Writing before the learned three-member Bench regarding the evidence of those witnesses who had referred or involved the respondents herein in the acts of rowdyism. This statement reads thus:-- "P.W.
13. Zahid Hussain son of Sayyed Taqi-ud-Din, Senior Editor in News Line Magazine and Correspondent for Foreign Associated Press of America, Times of London and South China Morning Post states at page 48 (of the Evidence File) "Some of the Muslim League leaders, who were already sitting inside, stood up and started shouting - Another one of them was Akhtar Rasool."'
213. "At page 49 (Third line from bottom) "I went around and I also saw Tariq Aziz." "At page 51 - The following question was put to the witness Q. "You have not mentioned the name of Akhtar Rasool in your statement recorded on oath oh 19.5.1998 in any context?
214. A. "I see my statement on oath. This is correct. However, I had also filed statement in writing on that day before the Court and the name of Akhtar Rasool appears in the statement, (statement in writing in Exh. 31/1)."
215. At page 54-- Q. "You have mentioned in your examination-in-chief that you had seen Akhtar Rasool inside the Courtroom No. 1 on 28.11.1987. What would be the time when you saw him.
216. A. "I do not remember the time when I saw him but it was when there was pandemonium in the Courtroom."
217. Again at page 54:- Q. Did you see Akhtar Rasool talking to others inside the Courtroom?
218. A. I also saw Akhtar Rasool standing and talking to other people. He was one of the most prominent people I do not know to whom he was talking. I cannot remember that exact location where he was standing and arguing with others.
219. "P.W.
14. Altaf Hussain Bhatti son of Wajahat Hussain Bhatti, Journalist of Daily Asas at page 57 in answer to cross- examination last five lines states that "It is correct that my statement on oath was recorded on 4.5.1998 during inquiry and on that day I also submitted a statement in writing. It is correct that whatever was mentioned in the statement in writing filed during inquiry was based on what I had seen and what I had heard from others." .
220. "Thus he reiterates the contents of the statement m writing filed ' during the inquiry may be read as evidence in the presence proceedings."
221. "P.W.
16. Fakhur-ur-Rehman son of Qamar-ur-Rehman, Journalist for Turkish' Daily Newspaper "Zaman" at page 62 states "Sardar Muhammad Naseem wanted me to .Be handed over to them--I was first beaten up by Sardar Naseem".
222. "P.W.
19. Ardeshir Cowasjee. Journalist at page 75 states that "The cassette identifies the people who were accused."
223. "Besides the oral evidence, video cassettes produced as Exh. P.W. 19/1 and Exh. P.W. 20/1 and P.W.
224. 20/2 substantiate the charge."'
225. "Photographs published in various newspapers annexed at pages 10, 11 and 12 also establish the charge."
226. However, the learned three-member Bench took the following view:-- "At the most it would be a case of suspicion that the learned counsel is correct that suspicion without proof beyond reasonable doubt cannot sustain criminal charge and contempt proceedings are in the nature of criminal proceedings."
227. The Bench, after taking into consideration the evidence of 21 witnesses, especially the evidence of the above witnesses reached the following conclusion:- "... We are convicted that a crowd/mob had gathered on that day outside the Court which according to the witnesses was 2000/3000 strong and was raising objectionable slogans against the judiciary. A sizeable number got inside by scaling over and by forcing open the .Outer gates and many forced themselves inside the Court building and quite a few of them went up to the first floor and were found loitering in the lobby /foyer next to Courtroom No. 1. Slogans and banners were raised inside the building also."
228. The learned Bench of this Court also recorded the following finding:- "It follows that it was not a case of the situation building upon the spur of the moment and the crowd getting excited and forcing their way inside. A number of buses had brought people to the Court. It appears from the evidence that the action of that day was planned and the purpose was to disturb the Court which was conducting contempt proceedings at that time."
229. Notwithstanding the above finding, the Hon'ble Bench considering that the contempt proceedings were in the nature of criminal proceedings passed orders for acquittal of the respondents With the following observations:- "..... Evidence-brought on record does not establish at what level and by whom the planning was done but it Can be presumed that it was net done at the local level. However, despite reaching the conclusion that the action of the mob/crowd amounted to most flagrant type of contempt of this Court, as the evidence does not specifically point out any of the respondents to the extent that it could be "said that the case against any of them had been established beyond reasonable about, in our view the respondents are entitled to acquittal under the law."
41. It seems necessary to refer to the meanings of the words, "aided" "abetted" or "facilitated"In Black's Law Dictionary, Sixth Edition, the word ' abet' has been defined as follows:-- "Abet. To Encourage, incite, or set another on to commit a crime. This word is usually applied to aiding in the commission of a crime. To abet another to commit a murder is to command, procure, counsel encourage, induce, or assist.... To facilitate the commission of a crime, promote its accomplishment, or help in advancing or bringing it about.... In relation to charge of aiding and abetting, term includes knowledge of the perpetrator's wrongful purpose, and encouragement, promotion or counsel of another in the commission of the criminal offence."
230. In the above Dictionary, the word ''aid" has been defined as follows:- "Aid. To support, help, assist or strengthen. Act in cooperation with; supplement the efforts of others..."
231. The word "facilitate" has been defined thus:-- "Facilitate. To free from difficulty or impediment............. Within statute prohibiting use of facilities of inter-state commerce with intent to promote, manage, facilitate, or carry on unlawful activity means to make easy or less difficult...."
232. It would also be advantageous to quote the definition of the words. "Aid and Abet" in the above Dictionary, which is as follows:- "Aid and Abet". Help, assist, or facilitate the commission of a .Crime, promote the accomplishment thereof, help in advancing of bringing it about, or encourage, counsel, or incite as to its commission... It comprehends all assistance rendered by words, acts, encouragement support, or presence, actual or constructive to render assistance if necessary...."
233. In Hidayatullah v. The State (1994 P.Cr.L.J. 20), while explaining 'abetment', it was observed at page 44 of the report, as follows:-- "The appellants are guilty of abetment under section 109, P.P.C, and also for the offences punishable under sections 489-A, C and D, P.P.C. Abetment can be committed by instigation or conspiracy or intentional aid. Instigation shows, some sort of advice for, the commission of an act, which if done, would be an offence. For abetment by conspiracy, it is necessary to show that an illegal omission was done for the thing conspired for. In order to prove abetment by intentional aid, it must be shown that the commission of crime was facilitated by either an act on the part of abettor or by this illegal omission."
234. In "Judicial Dictionary" by K.J. Alyar, the words "Abet" and "Aiding" have been defined as under:-- "Abet" To encourage the commission of an act or offence. There are three kinds of abetment dealt with in the Indian Penal Code. A person abets the doing of a thing who:-
(1) instigates any person to do that thing; or
(2) engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of the conspiracy and in order to the doing of that thing; or
(3) intentionally aids by any act or illegal omission, the doing of that thing....."
235. "Aiding". The act of encouraging actively anyone to commit a crime. Whoever either prior to or at the time of the commission of any act, does anything in order to facilitate the commission of that act and thereby .Facilitates the commission, thereof is said to aid the doing of that act.... A man may unwillingly encourage another, in fact by his presence, by misinterpreted words or gestures, or by his silence or non-interference; or he may encourage intentionally by expressions, gestures or actions intended to specify approval. In the latter case, he aids and abets; in the former he does not "
236. The conduct and demeanour of the respondents as it has come on the record through the evidence is covered by the meanings of the words, aided, abetted or facilitated reproduced above.
42. It will not be out of place to observe that it is common feature of our politics that in a political demonstration led by politicians the workers/participants normally follow their leaders in shouting.
237. Slogans. If the leaders are acting peacefully the workers/participants follow suit and if the situation is contrary the workers repeat the action so zealously that they often become unrully. The fact that the respondents herein were urging their workers }s reinforced by the photographs published in various newspapers on record as well as by the video film taken by the Closed Circuit Cameras installed in the Supreme Court premises. Seen in this perspective, the above phenomenon negatives the stand of the respondents taken in their respective statements, euphemistically depicting their roles during the acts of rowdyism showing that they were begging the crowed with folded hands or requesting them to go away or remain peaceful and not to create any untoward situation. It is also noteworthy that the unfortunate incident of storming of the Supreme Court building resorted to by the Muslim League workers was not seriously condemned by the ruling party. Only a. Resolution was passed in the National Assembly condemning the act Of rowdyism and no disciplinary action whatsoever was taken against those workers and leaders who headed the mob.
43. Where the case of a contemner depends wholly or substantially on his identification then the Courts should exercise caution while relying on identification simpliciter without supporting evidence. When a visual identification is made after due observation of the video cassettes by the Court in the presence of the accused coupled with oral evidence to support it, the accused though may not be, depending upon the circumstances of each case, convicted on such evidence but is the visual evidence is supported by oral evidence or circumstances which the Court thinks were supportive of identification, the Court can take the same into consideration. In the present case, we find that though the direct evidence brought on record does not conclusively prove that the respondents were, actively taking part in the event but admittedly they were present at the scene of occurrence. In this situation, the video cassettes recorded through the Closed Circuit Cameras installed in the Supreme Court premises showing the presence of respondents in the Supreme Court premises dp furnish a corroborative piece of evidence against them, which can be relied upon in the peculiar circumstances of the case. We are fortified in taking the above view by the case of Collector of Customs v. Saeed-ur-Rahman (PLD 1989 SC 249), wherein video cassette being the only conclusive evidence viz, ex facie proof of guilt of civil servant was considered to be sufficient evidence for Conviction under the relevant law. It would be advantageous to reproduce relevant passages front the report, which read as under:- "By making these observations the Tribunal has held such evidence to be admissible and also conclusive and, sufficient in some cases but not in all. This appears to be a correct statement of the law. While reviewing the finding the Tribunal found that (i) the only evidence that allegedly involved the appellants had disappeared; (ii) objective impressions of the screening of the films recorded in a stereotype cyclostyled form .That certain person was clearly identified in the recording clearly showing him taking money from some passengers; (iii) it is not indicated how many scenes of that nature of each appellant were actually exhibited; (iv) there is no tangible evidence before us (Tribunal), to accept the findings of the Authorised Officer and the Authority.
238. These conclusions could on the facts of the case be drawn by the Service Tribunal. They suffer from no legal infirmity."
239. "... If the video Cassette recorded all the facts, necessary to establish the facts required to be proved then it was the appropriate course. That is a point which was not in controversy: What was., in controversy was whether the Video Cassette by itself established those required facts. This could be verified by the Authority anti the Appellate Authority by viewing them."
240. "19. The Service Tribunal was, therefore, justified in attempting to resolve the issues requiring determination by referring to the Video Cassette or in its absence by other evidence. If the Video Cassette was the only evidence, the conclusive evidence the exfade proof of the guilt of the respondents, then its absence alone should not have been made the basis of exonerating the respondents of the charges...."
241. "20. It follows, therefore, that the mere loss or destruction of the Video Cassette could not by itself be sufficient to exonerate the respondents of the charges competently framed and properly enquired into. If it were so it will encourage and reward criminality and subversion of orderly and established procedures of the Authorities and Institutions...."
242. "21. In concluding these appeals, were cannot help noticing certain features of the case which are alarming and which deserve a thorough probe by the Federal Government at an appropriate level.
243. In the first place the closed circuit T.V. System is an invaluable aid to monitor and record unobtrusively the performance of the various functionaries covered by it. It is good and substantial evidence. It enables prompt and effective remedial measures. Why in these cases things were allowed to continue unattended, unabated for eighteen months without any action having been taken. According to the allegations the culprits were identified, their delinquencies had been recorded and photographed, fleecing of the passengers, travelling on international flights was widely taking place yet the monitoring and supervising officers delayed the disciplinary and remedial action for such a long time. After all why was .There such a callously permissive attitude on the part of those Who should have known better, should have reacted differently. Secondly, why were not the duplicates or copies of the Video Cassettes prepared by the mechanical processes.
244. This was neither expensive nor technically tedious. It appears that a calculated risk for no obvious or plausible reason was taken. Thirdly, knowing the importance of these Video Cassettes, and the prize that they were, their safe custody, it appears, was not properly ensured. How could pilfering from such a custody took place is itself somewhat surprising and what is more the mere registration of a criminal case was considered sufficient in the matter. Fourthly and this is important for the establishment of rule of law in the country mandated by the Constitution, why did the. Higher and the responsible officer of the department fail to. Respond to the process of the Special Judge duly served on him when called up to testify in the theft case and that case ended in straight acquittal on the ground of no evidence...."
245. Reference can also be made to the following case-law relating to admissibility of video- films/cassettes in evidence: R v. Turnbull ([1976] 3 All ER 549); R. v. Cook ([1987] 1 AU ER 1049) and Collector of Customs v. Saeed-ur-Rahman (PLD 1989 SC 249).
44. It is a matter of common knowledge that unfortunately in our society at times, even the-eye- witnesses of an occurrence hesitate to appear as witnesses either because of fear of. Involvement in the prosecution controversy during investigation stage and/or before the Court or due to the fact that they are influenced, harassed or intimidated by the opposite party. This being so, the Court should be dynamic and not static while appraising the circumstantial evidence brought on record in such cases.-While appraising such evidence, if the conscience of the Court, on material placed before it,-is satisfied that factually the person charged with .Contempt has committed the same, it should record the conviction ignoring the technicalities of procedure provided the contemners have been given a fair trial for defending themselves pursuant to the charges levelled against them. In cases where there is no direct-evidence , to show in what manner the offence was committed, the Courts must examine the probabilities in the light of indirect evidence or circumstantial evidence, which once found to have been established, may well furnish a better basis for decision than any other kind of evidence. It would also be proper to refer 'to some well- established principles relating to appraisal of circumstantial evidence by Courts. Reference may be made to the case of Khurshid v. The State (PLd 199Q SC 305) = (PSC 1996 SC (Crl.) 526), when it was observed:-- "While appraising' the circumstantial evidence the Court is to keep in mind the location of the incidents If the place of incident is a place -where no witness was available and the accused had the exclusive knowledge about the incident, the simpliciter denial on the part of the accused will, not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the defence Charged with. But he should raise a plea of the nature which on being tested on the touchstone of probabilities warrants a reasonable hypotheses of his innocence." (p. 316) C "Though the Courts are supposed to follow the well-settled principles of criminal jurisprudence, manely, that an accused person is presumed to be innocent, that the prosecution is to prove a criminal case against an accused person beyond - reasonable doubt and in case to views are possible the view which favours the accused person, should be preferred; and that all benefit of doubts should be extended to the accused, but, at ; the same time, the Court should also take notice of the changing circumstances of the present days. Even in cases where eyewitnesses are available they refuse to appear as witnesses in support of the prosecution case; either because of fear or on account of being won over by the accused party. The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts And circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigating agency/prosecution, provided the same have not prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities." (p. 316) D In Talib Hussain v. The State (1995 SCMR 1538), it was observed as follows:- "Where there are indications of design, in the preparation of a case resting on circumstantial, evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference." (p. 1543) B "Where undesigned coincidence of circumstances are proved and, the chain of such circumstances is so strong that no other explainable conclusion can be drawn except the guilt of the accused the Court is boynd. Tp draw inference against him. The circumstantial evidence must be so clear, cogent and convincing that the facts could not be accounted for on any other rational hypothesis than the guilt of the accused. In such a situation unless the accused creates' a reasonable doubt regarding natural conclusion which can be drawn or produced strong evidence of exculpatory nature, it may be difficult to discard such circumstantial evidence." (p. 1544)D In Syed Khalid Mahmood v. The State (1994 P.Cr.L.J. 757 at 763), it was held:- "... Circumstantial evidence means the evidence afforded not by the direct testimony of an eye- witness to the fact, to be proved, but the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result wether than the truth of the principal fact Circumstantial evidence is evidence of facts from which the facts ' in issue' may be inferred as a natural or probable conclusion...."
246. IthMuhammad Arshad v. The State (1992 SCMR 1187), at page, 1191 -E of the report, it was observed:- "Circumstantial evidence could be relied upon where either direct evidence was not forthcoming or had not been found satisfactory."
247. In Lejzor Teper v. The Queen (PL1 1952 PC 119), it was observed:-- "Circumstantial evidence may sometimes be conclusive, but it must always be narrowly' examined if only because evidence of this kind may be fabricated in order to cast suspicion on another.
248. In M. Ata Muhammad Khan v. The Crown (AIR~(37)1950 Lahore 199), it was held:- "The well-recognised, almost elementary, rule is that to find a man guilty of a criminal offence on circumstantial evidence, the facts proved must all, be consistent with the theory of his guilt and incompatible with the theory of his innocence.
45. During the course of hearing Sardar Muhammad Ishaq, Senior ASC, after seeking instructions from the respondents, namely, Tariq Aziz, Mian Muhammad Munir, Akhtar Mehmood and Shahbaz - Goshi submitted that, without prejudice to the submissions made by him, the above respondents offer-unqualified apology and throw themselves at the mercy of the Court The learned counsel also offered unqualified apology on behalf of Sardar Muhammad Naseem, who was stated to be abroad and Ch. Tanvir Ahmed, why is reportedly in the custody of NAB. Mr. Muhammad Nawaz Kasuri, learned counsel appearing on behalf of Akhtar Rasool also tendered unconditional apology and threw him at the mercy of the Court.
46. We have considered the question of tendering of unconditional apology on behalf of the respondents at this belated stage. The act of tendering unconditional apology is always important and material, inasmuch as, an apology though does not by itself purge the wrong committed by the .Contemner yet it reduces the gravity of the offence and operates as a mitigating circumstance. However, it has been observed that in most of the cases, where contempt is committed, the contemners proceed with vehemently contesting the proceedings and trying to justify the action. Towards the end, when feel that. Accusations prima facie appear to have been established, they tender apology in the alternative. Such an attitude on the part of the contemners, being without expression of remorse about the impropriety of the act already committed by them, would not be worthy of consideration. In cases where accused/contemners purge themselves by tendering. Unconditional apology without making any attempt at justification of their blameworthy conduct and/or contesting the matter on factual side, grace lies in forgiving rather than convicting/punishing them, in that a Court ought never to be vindictive and should always take due Notice of since apologies. But a brief survey of the case-law shows that gracious attitude of the-Courts in dealing with contempt cases by accepting apology from contemners has been construed as a sort of weakness' or inability of the Courts to deal effectively with the contemners. A, general feeling has developed in the minds of the people that after grossly scandalizing and slapdering a Court or a Judge, the contemner can get away' with it conveniently by tendering unconditional apology. Such a tendency not only erodes the public confidence in the judicial process but also impinges upon the dignity of the judiciary besides affecting the independence of Judges. No doubt, unconditional apology by a contemner is not a defence in a contempt case rather it is an. Admission on his part and does not absolve him from the consequences of the contemptuous act. Reference can be made to the case of State v. Mumtaz Hussain (NLR 1987 Criminal 28),. Wherein it was observed:-- "... There can be to show to opinions that tendering of unqualified apology amounts to admission of the charge. In view of the nature of contempt allegedly committed, it is very much obvious that but for apology the contempt is so serious that heavy punishment both of imprisonment and fine for each , contemptuous slogan would have been-fully justified, so I proceed to consider the legal consequences of apology tendered by the accused. I find that no law or rule exists indicating or regulating the manner in which the Courts have to act on tender of apology and the matter is entirely left to the discretion of Court. The determination of appropriate order' on tendering of satisfactory apology, thus depends upon the circumstances of each case and the Court can deal with the matter in its discretion in such a manner as would meet the ends of justice and fulfill the purpose of law or contempt...."
249. In re: Arif Nizami (PLD 1971 SC 80) Chief Justice. Hamoodur Rehman Observed:-- "An apology does not provide the contemner with an absolute excuse for the offending publication nor does it entitle him to discharge as of right, for it cannot remedy the evil caused or the harm doing to the administration of justice by shaking the confidence of the public in the Court or a particular Judge of the Court..... "
250. "...... It is the duty of the Court, therefore, to protect its Judges and to see that, the confidence of the public in their administration of justice is not undermined. There can be no question, therefore, of treating the apology as a full amend for the grave harm caused to the reputation, good name and honour of anyone of the Judges of the Court. There is no doubt that taking all the circumstances of the case into consideration there may well be cases where an apology may itself be considered to be a sufficient amend and no further sentence may be considered necessary or only a warning may be deemed to be adequate but each case will depend, upon its on facts. But where the circumstances, even taking the most charitable view, are such that the inference is irresistible that there was lack of care and negligence on the part of the contemners then it is difficult to pass it order without some penalty." (p. 80) E-F.
251. In Registrar of High Court v. Editor of the English Daily "The News" (1992 P.Cr.L.J. 1893), it was observed thus:- "We have given our anxious consideration to the contentions of the learned counsel for the contemners. We feel constrained to say that while the Courts have generally displayed a benign attitude in accepting apology from contemners in contempt cases in the solemn hope that people will realise that it is in the public interest that the Courts should be kept above all controversies in order to maintain the supremacy and independence of judicial process and Courts, we have noticed that this gracious gestures on the part of Courts in dealing with contempt cases has been construed as a sort of weakness or inability of the Courts to deal with contemners, A general feeling has come to stay with the. People that after scandalizing and slandering a Court or a Judge, even in a gross manner, the contemner can get away with it conveniently, if on the first appearance before the Court he tenders unconditional apology. Development of such attitude amongst the people towards the Courts is not only likely to erode the public confidence in the judicial process but it is also likely to erode the public confidence in the judicial process but it is also likely to lower the image of Courts and Judges-besides affecting the independence of Judges in the long run. We are, therefore, of the firm view that such tendencies should be effectively curbed in public interest , to keep the stream of justice flowing unobstructed and to maintain the institutional supremacy of Courts to that public confidence in Courts, remains unshaken."
252. "We would like to express in unambiguous terms that an unconditional apology by the contemner in a contempt case is not a defence. It must be understood clearly that apology by tt contemner does not absolve Him from the consequences of the contemptuous act. Apology only serves as a mitigating circumstance vin awarding punishment for the contempt. We may also state here that in a case of contempt involving published material, the author, publisher, printer and editor all are responsible for the act of contempt but the degree of their responsibility may vary according to circumstances of the case. It is also necessary to state here that position in life, social status and educational background of the contemner are also very relevant factors for determining the gravity of the offence of contempt while awarding punishment for such act."
47. Reverting to the case' in had, the respondents instead of tendering unconditional apology at the very outset, contested the case on factual side with great vehemence during trial. However, on commencement of the present proceedings, they have tendered unconditional apology in the alternative, meaning thereby that they stick to their earlier, stand and manifestation of remorse and representance is only to wriggle out of the present proceedings. Clearly, surrender to the jurisdiction of the Court and praying for excusing the guilt is relatable to the time and should prominently reflect the keen anxiety of- contemner for making genuine endeavour at the earliest to dilute the gravity of the act which amounted to contempt and that "to with greatest humility seeking condonation of accusations made against him, which is not the case, in the present proceedings.
253. Accordingly, we find that the respondents were not sincere, in tendering apologies in that the learned counsel reiterated that the unqualified apologies tendered by their clients are in the alternative and without prejudice to the submissions made by them or on their behalf on. Merits.
254. We are afraid such apologies do not qualify for acceptance in the light of the well-settled principles laid down by the Superior Courts in this behalf i.e. (a) the apology must be offered at the earliest stage of the contempt proceedings and may not be postponed till fag-end of the proceedings; (b) the apology must be unconditional, unreserved and unqualified; (c) the apology should not only appear but must also satisfactorily Represent sincere and genuine remorse and should not be half-hearted or mere formality; and (d)'the contemner should not endeavour to justify his conduct. -Here, the respondents had specifically disputed the charges levelled against them, had unequivocally pleaded their innocence and had endeavoured to justify their conduct even at the fag-end of the proceedings Therefore, their apologies are not accepted.
48. The learned Attorney General for Pakistan had1 filed to applications praying-therein that additional evidence may be-taken and statements of certain other witnesses recorded by this Court, which would help this Court to come to a definite conclusion as to the identification of the parsons involved in. The acts of rowdyism. It would be proper to make a brief survey of the case- law on recording of additional evidence to resolve/decide whether it would be desirable, at this stage, to record any further evidence in the interest of justice. In Secretary to the Government of West Pakistan v. Gulzar Muhammad (PLD 1969 SC 60) it was held as under:-- "The question now is as to whether that order of the High Court should bp set aside upon the fresh materials now placed before this Court for the first time, Normally, where important evidence having a material bearing on the merits of a case is subsequently discovered there are, of course, three courses, open to a party to the litigation. He may (i) apply for admission of the fresh material as additional evidence before the judgment is pronounced, (ii) apply for a review of the judgment after it has been pronounced and (iii) appeal from that judgment. In the present case the appellant has adopted the last course without .Disclosing as to why it could not have applied for a review of the judgment on the ground of discovery of the fresh evidence. But in an appeal it is now well-settled that additional evidence should not be admitted in order merely to enable on of the parties to. The litigation to fill in gaps in the evidence."
255. In Mad Ajab v. Awal Bads hah (1984 SCMR 440) it was observed as under :- "As regards the additional evidence which has not been admitted so far, it is clear that this document is sought to be utilized to support a specific plea not taken up in the pleadings namely that the mortgage stood redeemed in 1962 and a fresh mortgage had come into existence. These mutations like all others of their type found their abstract incorporated in the remarks column of the relevant Jamabandi. In' that form without being incorporated in the Jamabandi itself it could not be used at all for proving the transaction or the intention of the parties requisite for proving the point. Besides, as held in Parsotim Thakur and others v. Lal Mohar Thakur and others (i), the provisions of law with regard to the additional evidence are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch-up the weak parts of his case and fill up omissions in the Court of appeal, this power, it was observed in that case, ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on the main issue in the case. The petitioner having pleaded only additions to the mortgage-charge and not redemption and creation of a fresh mortgage, we do not consider that his is entitled to get these documents admitted in evidence at this stage."
256. In Pairida Gul v. The State (1987 SC MR 886) it was held as under:-- "After hearing the arguments of the learned counsel, we, however, find certain aspects of this case which are of particular significance. Having regard to the language of section 540, Cr.P.C, it is clear that the section gives very wide powers to the Court to examine any witness as a Court witness at any stage of the case. It is needless to emphasis that this discretionary power of such amplitude has to be exercised with caution and circumspection in accord with the provisions of the Criminal Procedure Code and general principles of criminal law. The Court must guard against the exploitation of this power by parties who had ample opportunity to produce, evidence with their knowledge and must not put one of the parties in a position of advantage vis-a-vis the other. The guiding principle is always what the ends of justice demand. We would not dilate on the scope of section 540, Cr.P.C, as the principles regulating the discretion thereunder are well-settled by this Court. "
257. In Muhammad Aslam alias Accha v. The State (1984 SCMR 353) it was observed as under:-- "In these circumstances it was an amply fit case for examination of Mst. Hanifan Bibi and the lady doctor as Court witnesses under the Second Part of section 540, Criminal Procedure Code which provides that "the Court shall summon and examine" or re-call and re-examine a person if his evidence "appears to. It essential for the just decision of-the case." While it is discretionary under .The First Part of section 540 for the Court to summon or refuse to summon a Court witness,, under the Second Part it becomes mandatory for it to summon and examine a person if it appears to the Court to be essential for the just decision of the case."
258. In Bashir Ahmad v. Ahmad-ul-Haq Siddiqui (1985 SCMR 1232), it was observed:- ".... This application was, however, refused and the learned Judges observed in this connection that:-- "Rule 27 of Order XLI, C.P.C, does not envisage filling up of the lacunae left by a party in the evidence before the Trial Court. Additional evidence under the above rule may be allowed to be recorded if the Appellate Court itself so requires. Additional evidence cannot be allowed in order to enable a party to patch up the weaker part of its case or to fill up omission or to enable it to raise a nul point.
259. It can be allowed only if it is required by .The Appellate Court itself on the basis of its pwn appreciation of the evidence already on record."
260. "On this view of the matter, the learned Judges held that they were not inclined to hold that it was necessary or expedient in this case to allow the petitioner to produce any additional evidence.
261. In Gullam v. The State (PLD 1977 Lahore 1103), it was held as under:- ... No doubt a High Court has got wide powers under sections 428 and 375, Cr.P.C, while dealing with a Criminal Appeal and a Murder Reference, to record additional evidence in the case but we have to see whether this power should be exercised in favour of the prosecution at this stage or not. It is not denied that these provisions are not to be utilised at the appellate stage to cure the infirmities or fill up the lacunae in the prosecution case. It is well-settled now that such power is to be excised only where the additional evidence was either not available at the trial or the party concerned (State)'was prevented from producing it either by circumstances -beyond its control or by reason of misunderstanding or mistake."
262. In G.S. Gideon v. The State (PLD 1963 SC 1), Hamoodur Rehman, J. (as he then was), observed as under:-- "It may also be pointed out here that even under the Criminal Procedure Code there is no specific bar to a Criminal Court acting on the evidence recorded or partly recorded by a predecessor Court. Section 350 .Of the Criminal Procedure Code permits such a course being adopted if the accused does not expressly demand the re-summoning of a witness or a de novo hearing of the matter. If the appellant had appeared before the Division Bench and made such a demand, we have no doubt that he to would have Been granted a similar facility. There was nothing illegal, therefore, in the Division Bench proceeding upon the evidence already qn the record. We are, thus, unable to agree that the proceedings before the Division Bench were invalid or 4 that the committal of the appellant has been vitiated by any illegality.
263. In Barkat Ali v. The Crown (1969 SGMR 448), at page 453 of the report; it was observed as under:-- "..... Section 428, of the Cr.P.C, authorizes the Appellate Court, if it thinks additional evidence to be necessary, to record its reasons, and to take such evidence in the interests of justice. It is true that this discretion must be exercised in a judicial manner and a purely arbitrary or capricious exercise of this discretion is liable to be set aside by this Court...."
264. ".... No party has a right in an Appellate' Court to the production of any evidence at all. It is the Court that has to exercise its discretion in a proper manner in the interests of justice . We find that only three witnesses were mentioned by name in certain documents relating, to the defence version which were produced in the Court of the Sessions Judge. We hold that by cutting down the list of the defence witnesses to three, the learned Judges did - not violate any principle of natural justice in this case. "
265. In Ali v. Crown (PLD 1952 FC 71), it was observed:-- "The provisions of sections 375 and 428 of the Code of Criminal- Procedure are meant to be used in such a manner as to secure even-handed justice to both parties. They should not be utilized . To cure all the infirmities in prosecution case in the Appellate Court."
266. "To recall partisan witnesses to make additional statements at the Appellate stage is an invitation for perjured evidence. Section 428 Of the Criminal Procedure Code should be availed of by an appellate Court only if additional evidence can be given by persons who are entirely unconnected with the parties and can therefore be expected to give an unbiased account of the occurrence."
267. In the above report, Cornelius, J (as he then was), observed thus:-- " A brief survey of reported cases discloses that, despite the wide terms in which the power is expressed, it. Has only been exercised where the additional evidence was either not available at the trial, or the party concerned was prevented from producing it. Either by circumstances beyond its control,, or by reason of misunderstanding or mistake."
268. In Salehon v. The State (1971 SCMR 260), it was observed as under:- "The learned Judges of the High Court after considering the decision of the Federal Court, reported in Ali and another v. Crown (PLD 1952 FC 71), allowed the Public Prosecutor's petition with the following remarks:- "After considering the arguments we are of the opinion that the facts of Ali's case were different from the facts of the present case. In this case we are not being asked to summon partisan witnesses, and the question of inviting perjured evidence does not arise. Mr. Majid is a responsible officer of the Government. He submitted a report after examining the rifle and the empty cartridge, and his report is already On the record. The other witnesses are police officials their evidence will be purely of a formal nature."
269. "We think the High Court was right in allowing the additional evidence to be led."
270. In Rashid Ahmad v. The State (PLD 1971 SC 709), it was observed at page 712 of the report as fol lows:- "In the facts of the present case there can be no doubt that such prejudice has been caused because what the learned Judge had done in this case was to permit evidence, in rebuttal of the defence case after the prosecution had closed its case and the accused had entered upon his defence. The accused should have' been given a right to rebut that evidence, for, there can be no manner of doubt that this was additional evidence in the case. Normally, the prosecution closes before the accused is examined but there is no bar to the taking of additional evidence in the interest of justice, at any stage of any enquiry or trial as provided by the provisions of section 540, Cr.P.C." in Younis v. The State (PLD 1957 (WP) Lahore 739), at page 745-Placitum- D, it was observed:- ....It is specifically laid down in section 439 of the Code of Criminal Procedure that the High Court may in its' discretion exercise any of the powers conferred on a Court of Appeal, by sections 423, 426, 427 and 428. It will thus be seen that the High Court has a wide discretion, which will be exercised in each to the view which the Court may. Take of the requirements of justice. No had and fast rules can be laid down to define or limit the exercise of such a discretion. With a view to find out if it was a fit case for enhancement of sentence or not. It considered it expedient in the interest of justice to record the statement of the Civil Surgeon, and I accordingly overruled the objection and recorded the statement of the Civil Surgeon in the presence of the parties and their counsel." in-Abdul Miinim Khan v. The State of Hyderabad (AIR 1953 HYD. 145) (Vol. 40. C.N. 64) in paragraph 29 of the report, it was observed thus;- "In the matter of additional evidence, the Appellate Court has always the power to call for the same under the provisions of Ss. 375, 428 and 540, Criminal P.C. The first section would come into operation when the case is before the High Court for confirmation of the sentence of death. The second section would come into operation when there is an appeal pending before the High Court and the thirds. 546 contemplates (he summoning of 'any person as a witness or the re-calling of a witness who has' been already examined. This section, therefore, is more or less an omnibus section giving power to, the Court to examine, witness, if it considered necessary. Calling of additional evidence is not confined to cases where the accused makes the application. It would also apply to cases where the prosecution makes such an application. The object, of the section is just as much the prevention of the escape of the guilty person through some carelessness of the prosecution or the Magistrate as the vindication of the innocence of a person wrongly accused owing' to the carelessness and ignorance of one party. There is no differentiation between the to cases. If there is - the apprehension of justice failing by an erroneous acquittal or by an erroneous conviction, the Court would be justified in exercising its discretion in calling for additional evidence.
271. It is not desirable to allow the prosecution to patch up the evidence wanting in the case.
272. Negligence on the part of the prosecution can never be a ground, for taking additional evidence against the accused and by allowing such additional evidence, surely justice would fail. "
273. In Emperor v. Lal Mia (AIR (30) 1943 Calcutta 521), at page 527-d of-the report, it was observed "When in an appeal by the accused against his conviction and a reference under S. 374 the High Court is apprised of the fact that valuable material which could and should have been put in evidence in favour of the accused was not put before the jury owing to the inaptitude of the lawyers for the accused or to the apathy or lake of vigilance on the part of the Judge, the High Court can make full use of those materials before it for the purpose of doing justice."
274. In The State v. Abdul Hamid (1970 P.Cr.L.J. 384), at page 388 of the report, it was observed:- "A bare reading of this section, would show that it has been expressed in the widest possible terms and does not limit the discretion of the Court in any manner whatsoever. The discretionary manner whatsoever. The discretionary power under this section can be invoked at any stage of enquiry or trial and any witness can be examined or a. Witness already examined can be recalled for further examination, if his evidence appeared to be essential to the just decision of the case. "
275. In Liaqat Ali v. State (1981 SCMR 69), at page 71 of the report, it was observed:- "We find that not only these respondents were not produced in the Trial Court,-but no request was made for additional evidence in the High Court; and for that reason it would not be possible for us to permit additional evidence; to be brought on the record at this late Stage, in any case, a perusal of the documents in question shows that they are not at all helpful to the petitioners, for the reason that they do. Not establish as to what is the connection between Muhammad Shaft and 'the eye- witnesses in question; nor do these documents have any bearing on the supposed enmity, which exists between Muhammad Shafi and the to petitioners. These documents do not also establish any connection between Muhammad Shafi and the deceased. It, therefore, appears to us that his gentleman Muhammad Shaft has been brought in by the defence merely to create some kind of confusion, as otherwise he. Seems to have no connection at all with the present incident or the parties thereto".
49. It is well-settled that no had and fast rules cap be laid down to define or limit the exercise of discretion as also powers conferred on a Court of appeal. This Court has a wide discretion in such matters which must be exercised judiciously depending upon the facts and circumstances of' each case. The Appellate Court has always the power to call for additional evidence under the provisions of sections 375, 428 and 540 of-the Code of Criminal Procedure as also under rule 27, Order XLI of the Code of Civil Procedure. Clearly, if there is apprehension of justice failing by an erroneous acquittal or an erroneous conviction, the Court would be justified in, allowing additional evidence at that stage. The discretionary power vesting in this Court in that regard can be invoked at any stage of the proceedings and under exceptional circumstance any witness can be examined or a witness already examined can be recalled for further examination if so required in aid of justice depending upon the facts and circumstances of each case. However, the case where such application is moved in bad faith to protract the proceedings or to fill-up lacunae stand on different footing. Be that as it may, the position in contempt matter is entirely different, inasmuch as, the matter being between the Court and the contemner the Court is competent to pass any appropriate order at any stage of proceedings if deemed fit. As we have already directed a thorough investigation into the matter in the Short Order, therefore, there is no need in these proceedings to record any additional evidence. The applications stand disposed of accordingly.
50. In view of the above circumstances, We find that the respondents, namely, Tariq Aziz, Mian Muhammad Munir, Ch Tanvir Ahmed Khan, Akhtar Rasool, Akhtar Mahmood, Shahbaz Goshi and Sardar Muhammad Naseem Khan, are guilty of committing contempt of this Court. We accordingly convict them under Article 204 of the Constitution of the Islamic Republic of Pakistan read with sections 3 and 4 of the Contempt of Court Act, 1976 and sentence them to undergo simple imprisonment for one month each and a fine of Rs. 5000/- each or in default thereof to suffer simple imprisonment for a further period of one month.
51. Above are the detailed reasons for our short order dated 28.9.2000, reproduced above.