The contempt proceedings under section 3 of the Contempt of Court Act were initiated against Captain Saleh Mohammad Khan, the then Member, Board of Revenue and Chief Settlement Commissioner, Baluchistan.
2. The facts leading to this contempt proceeding are that one Mst. Tauheed-un-Nisa bad filed a writ petition under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan whereby she had challenged the order of the Member, Board of Revenue-cum-The Chief Settlement Commissioner, Baluchistan in this Court. It was her contention that there was plot bearing Khasra Nos. 3547/7853-3547/7854 situated in Quetta Town. One Khudadad a fuel wood dealer was in occupation of the plot. He had filed "P" form for getting it from the settlement authorities, but before he could be transferred the house, Mst. Taubeed-un-Nisa purchased it in an open auction from the Settlement authorities. However, earlier than that Chief Settlement Commissioner had issued instructions that the plot in occupation of the fuel wood dealers in Quetta Town be transferred to their occupants. After receipt of the direction, the Deputy Settlement Commissioner recalled his previous Provisional Transfer Order in favour of Tauheed-un-Nisa and ordered its transfer to Khudadad. Tauheed-un-Nisa filed an appeal to the Additional Commissioner, who reversed the order. The same order was upheld by Additional Settlement Commissioner .On 1 July 1965.
Khudadad then filed a writ petition in the High Court of West Pakistan which was dismissed on 7th July 1967. He then challenged order of High Court in the Supreme Court of Pakistan, but the same was also dismissed.st
3. However some way or other on application of Khudadad the Chief Settlement Commissioner, Captain Saleh Mohammad Khan cancelled the Transfer Deed of Mst. Tauheed-un-Nisa and ordered its transfer to Khudadad. Mst. Tauheed-un-Nissa assailed the decision of the Chief Settlement Commissioner before this Court and the same was admitted for hearing. During the admission of the petition, it transpired that the Chief Settlement Commissioner in clear violation and disregard of the judgment of the High Court as well as Supreme Court had passed the order.
He was called upon to explain his position. In response to the Court notice, he filed his explanation on 14th September 1973. The case came for hearing before this Court on 19th, 20th and 24th of September, 1977. This Court found that the Member, Board of Revenue and Chief Settlement Commissioner had ignored the decision of the High Court and Supreme Court. A show-cause notice was issued under section 3 of the Contempt of Court Act to him. He in reply to the notice submitted his explanation as under :---- "That the respondent offers his sincere regrets and tenders an uncondi--tional apology and throws himself at the mercy of the Honourable Court. He prays that apology may kindly be accepted and the notice may kindly be discharged."
4. Mr. Mohammad Muqim Ansari, Advocate appeared on behalf of the contemner. He contended that there was no doubt that the contemner had ignored the decisions of High Court and Supreme Court, but as he had unconditionally apologized and threw himself at the mercy of the Court, the notice may be discharged. The learned counsel relied on Case No. 7 of 1976 of this Court decided in case of Mohammad Yousuf, Assistant Commis--sioner, Nasirabad v. Aziz Jaffar, S. P., Nasirabad and another. According to the learned counsel in the above-said case after tendering of unconditional apology the Acting Chief Justice Mr. Justice Abdul Hayee Kureshi had accepted his apology and terminated the contempt proceeding against the contemners. The learned counsel also relied on case of Haji Mehdi Pooya and another v. Agha Syed Abdul Hafizyan and another (1972 P Cr. L J 882) where it was observed :---- "The last paragraph to which exception has been taken is reproduced in para. 29 of the petition. On the face of it, its contents amount to contempt of Court and Mr. Ibadatyar Khan, the learned counsel for the opponents, has fairly conceded that technically it is contempt. However, he has submitted that this was unintentional and not in the least with the intention to interfere with the course of justice. At the most it was uncalled for and a rash act. The petitioner's counsel lastly stated before me that the paragraph of the pamphlet reproduced in para. 30 of the petition is innocuous and accordingly he would not press it into service. It is clear from the above that the opponents are guilty of committing contempt of this Court. Their learned counsel has urged that their unconditional apology be accepted. The learned counsel for the petitioners however attempted to argue that the apology was not unconditional as the opponents had justified their action in what they have stated in their counter-affidavits.
I am unable to agree with this view of the learned counsel for the petitioners for it is clear from the contents of their affidavits that what was stated was not in justification of the contempt but with a view to explain their conduct whether it was deliberate or unintentional.
5. The learned counsel further relied on case of A. K. M. A. Awal v. The State (PLD 1964 SC 562) where it was held :- "I would hold that by his letter, the appellant did indeed commit an act which constituted an interference with the administration of justice, and I would therefore uphold the conviction. But, I do not consider that in the circumstances of this case, anything in the nature of punishment is necessary beyond the fact of the appellant having been dragged through a public trial and help up to public disesteem for committing an administrative and judicial error in the exercise of his functions. He had made a full, unqualified and, in the circumstances, complete apology, and I consider that should have been accepted and that the proper order in the case should have been that after recording the conviction, the Court having accepted his apology should have let him off with no more punishment than an admonition and a direction not to repeat the offence."
6. On notice issued by this Court the learned A. A.-G. Contended that by tendering unconditional apology and throwing at the mercy of the Court the contemner cannot as of a right claim the discharge of the notice. According to him action of the contemner was deliberate and he should be punished for it. The learned counsel relied on Ch. Ghulam Jilani v. Abdul Hayee Khan, Magistrate Ist Class, Lyallpur (PLD 1955 Lab. 229), where it was held :- "The law takes a very serious view of contempt---s of the orders of the superior Courts by the Courts having inferior jurisdiction, who are expected to respect such orders. Unless inferior Courts do obey and pay due regard to the directions of superior Courts, the course of justice will be hampered."
7. The next authority relied upon by the learned counsel is israr Hussain v. The Crown (PLD 1955 Sind 1), where it was held :- "An apology consists of acknowledgment of commission of contempt and an expression of regret for such commission. The Court's satisfaction will depend upon the adequacy of the terms of an apology, its sincerity, and the gravity of the contempt. In the present case we doubt the sincerity of the apology. We think it inspired by regret, not at having committed contempt, but at the resultant impending imprisonment. Secondly we think the contempt was so grave that apology is not sufficient to purge the contempt. We are fortified in this view by the judgment of the Federal Court."
8. The third authority relied upon by the learned counsel is Abdul Karim etc. v. Boota and another (PLD 1956 Lah. 19), where it was held :- "To say at the end of the argument that he tenders an unconditional apology is meaningless. Had he come forward with such a plea in the very beginning, I might have finished this case within a few minutes. It is on account of his denial that these proceedings were prolonged and magnified."
9. The fourth authority relied upon by the learned counsel is The State v. Hafeez Ahmad, Inspector, C. I. A., Sialkot (PLD 1958 Lah. 88), where it was held :--- "It is true that the practising of a fraud upon a Court by an officer of the Government, even though it be only the result of over-zeal in the execution of his duty, is not to be viewed leniently." ---
10. The fifth authority relied upon is TheState v. S. W. Lakitullah (P L .D 1959 Dacca 84), where it was held :--- "The category of contempt is not limited merely to improper criticism of judicial acts alone.
Criticism even of acts done or omitted to be done by judicial officers and Courts in their administrative capacity, if containing improper imputations would also amount to contempt."
And in the same authority it was further held :--- "An apology, however unqualified it might be and however sincere it might be, does not necessarily purge the contempt, for, it can only be taken into consideration in mitigating the offence of contempt. An apology, though it often mitigates the offence, does not entitle the offender to a discharge as a matter of right and, in the interests of administration of justice, the gravity of the offence requires that something more should be done to purge the contempt adequately."
11. The sixth authority relied upon by the learned counsel is Mohammad Waris v. The State and another (1975 SCMR 106), where it was held :---- "We cannot help feeling that the learned Judge of the High Court has taken a rather harsh view.
The petitioner did throw himself at the mercy of the Court without any demur or qualification and, therefore, did show the spirit of manful confession of conscious wrong doing. Such an apology should, in the normal circumstances, have been accepted; but, since the acceptance of an apology is for the Court before which it has been tendered and not for a Court sitting in appeal, we feel that it would not be proper for us to accept the apology at this stage. But at the same time, we are clearly of the view that the harshness of the sentence should be reduced, as we have the right to do, even in an appeal against an order convicting a person for contempt."
12. The last authority relied upon by the learned counsel is in case State v. Abdul Wall Khan and others (P I. D 19771our. 315). This is the latest authority relevant with the instant case, wherein it has been in clear terms held :--- "That apology does not entitle contemner to discharge as of right. Unconditional apology even if accepted is only a mitigating circum--stance and no more."
I have no hesitation in accepting the stand of the learned Assistant Advocate-General.
13. There is ample law on the proposition that the contemner cannot claim as a right for discharge of notice after tendering unconditional apology.
14. In the instant case undoubtedly, a very senior officer having long experience as an executive officer or a quasi-judicial functionary has flagrantly ignored the decisions of the High Court and Supreme Court. It cannot be said that his action was not a deliberate one. The explanation given by him speaks so. After his retirement in order to avoid the punishment, he has tendered the so-called unconditional apology. I am not convinced that the apology is not without ulterior motive. A contempt of this nature cannot be lightly treated with.
15. In view of the circumstances, I find that Captain Saleh Mohammad Khan, the then M. B. R. Is found guilty for the contempt of Court. 1, there--fore, order that he is fined Rs. 1,000 and in default to suffer simple imprison--ment for a month. The contemner is allowed to deposit the fine up to 1st of February, 1978 in this Court. And if, thereafter he fails to deposit the fine, a warrant for his detention be issued.