Briefly the facts giving rise to the instant contempt petition are that (i) Dr. Umar Karar Khawaja, (ii)
Dr. Khizar Ali Khawaja and (iii) Muhammad Usman Khawaja were taken into custody by the officials of the Federal Investigating Agency on 19.12.2002 alongwith six other persons including Dr. Ahmad Javed Khawaja father of Nos, i and ii. Mrs. Amatul Jalil Khawaja wife of Dr. Ahmad Javed Khawaja challenged their detention in this Court through Writ Petition No, 21605/2002 on 20.12.2002. Notice was issued to the Deputy Attorney General and Attorney General for Pakistan for 24.12.2002. In the evening of 20.12.2002 four persons were released and the five were kept in custody. Dr. Ahmad Javed Khawaja, Ahmad Naveed Khawaja and others according to the Attorney General were involved in case FIR No, 412/2002 registered On 19.12.2002. On 27.12.2002 Court directed for production of three detenus not named in the FIR on 31.12.2002. On this date detenus were not produced. Learned Attorney General and Deputy Attorney General produced detention order dated 30.12.2002 passed by the Federal Government under Section 3 of the Security of Pakistan Act, 1952 against five persons. Petitioner challenged the aforesaid detention order in Writ Petition No, 62/2003 which was allowed to the extent of three detenus namely Dr. Umar Karar Khawaja, Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja and directed to be set at liberty vide order dated 17.2.2003.
2. Bailiff with robkar reached Camp Jail Lahore at about 3.15 p.m. who was asked to go to Choong Sub-Jail where they were detained. Counsel for the petitioner and bailiff were not allowed to enter the sub-jail. One of the officials took the order of the High Court and went inside the said jail but after some time returned saying that he has been told by Khadim Hussain Respondent No, 4 that they cannot release them as there is an other detention order against them. According to the petitioner fresh detention order was not shown to the counsel or the bailiff. Next day the petitioner moved the instant petition for initiation of contempt proceedings against the respondents for not releasing the detenus in compliance to the order of Court dated 17.2.2003. According to petitioner, respondents wilfully defied the order in refusing to release afore-referred three detenus.
3. Respondents have submitted para-wise comments on this petition on behalf of the Home Secretary, Govt. of Punjab. In reply to para-4 stated that Dr. Umar Karar Khawaja, Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja are detained for a period of three months by the Government of Punjab, Home Department in exercise of powers conferred on it under Section 3 of Maintenance of Public Order 1960. Copy of the detention order is placed as Annexure-A with the comments. In reply to ground (b) it is averred that detenus are presently detained under Section 3 of MPO which is a Provincial Law and the Provincial Government is competent to exercise powers conferred under it. Earlier the said persons were detained under Security of Pakistan Act, 1952 by the Federal Government as it is a Federal Law. These comments were filed on 22.2.2003. Vide order dated 5.3.2003 order of their detention dated 17.2.2003 was Withdrawn and the detenus were released.
5. On 28.2.2003 Mr. Karim Nawaz Malik, Advocate appeared on behalf of Mr. Hamid Khan Advocate and requested that latter is busy in the Supreme Court, therefore, the case be adjourned. On his request case was adjourned to 6.3.2003. On this date when the arguments were in progress learned Advocate General was called by the Hon'ble Supreme Court to appear in some case, therefore, he requested for adjournment, consequently the case was adjourned to 10.3.2003. On this date both the learned counsel were not available and on their joint request case was postponed to 17.3.2003. Again it was adjourned to 8.4.2003 as the Advocate General was busy in the Supreme Court. The case was fixed on 2.5.2003 but learned counsel for the petitioner was not available, therefore, it was adjourned to 9.5.2003. On this date Mr. Pervaiz Inayat Malik Advocate submitted that Mr. Hamid Khan, original counsel for the petitioner has gone to Islamabad, therefore, requested for a short adjournment. The case was adjourned with great reluctance for today with a direction to the petitioner that if Mr. Hamid Khan is not available on the next date she shall make alternate arrangement for her representation and no further adjournment shall be granted. Today the case was called at 9.15 a.m. The petitioner's relative stated that her counsel is busy before another Court, therefore, requested that case may be kept pending for half an hour so that he may bring the counsel. At about 9/45 when I started hearing the case again Mr. Pervaiz Inayat Malik Advocate appeared on behalf of the petitioner and stated that Mr. Hamid Khan does not want to prosecute this petition in this Court. He was asked to argue the case if he wants but he expressed that his client has no confidence in him. Neither the learned counsel for the petitioner has appeared nor he has argued the case, therefore; I heard the arguments of the learned Advocate General alone on behalf of respondents. Syed Shabbar Raza Rizvi Advocate General submits that the grievance of the petitioner urged during hearing of the case on 21.2.2003 was that the order of this Court dated 17.2.2003 has not been complied with so far and the alleged fresh detention order under the Maintenance of Public Order 1960 has not been served upon the petitioner or the detenus so far. Record shows that detention order was served upon the detenus on 17.2.2003. The averments made in the petition are belied by the official record. He has further argued that Provincial Government was competent to pass fresh order of detention under M.P.O. as the previous order in which detenus were set at liberty was of the Federal Government under Section 3(i) of the Security of Pakistan Act, 1952. The Home Secretary, Govt. of the Punjab is competent to pass detention order under Section 3 of M.P.O. 1960. He added that the fresh detention order has been withdrawn on 5.3.2003, and the detenus having already been released the petitioner is no more interested to prosecute the petition. At the end he submitted that the proceedings for contempt are to be resorted sparingly. Once the matter is brought to the notice of the Court then it is a matter between the Court and the contemner. Courts are not supposed to act with any vendetta in such like proceedings. In support of his contention he has relied upon Saif-ul-Haq Ziay (Advocate) v. Majid Nizami etc. (NLR 1998 Criminal 231) and West Pakistan. Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission (PLD 1979 Supreme Court 912).
6. Heard. Record perused. Copy of the Order dated 17.2.2003 passed under Section 3 of M.P.O. produced in Court today indicate that same were I served on the detenus on the same date which bears their signatures. The allegation of petitioner that said orders of detention Were not served upon the detenus, are negated by official record containing their signatures thereon. The Respondent No, 1 in good faith bona fidely withdrew the orders of detention on 5.3.2003 without making it a point of prestige to keep them under detention for ninety days. Action or conduct of the respondents does not constitute defiance of order of this Court dated 17.2.2003.
7. Respondent No, 1 was competent to pass detention order under Section 3 of the M.P.O. 1960 as the earlier one was passed by the Federal Government under the Security of Pakistan Act, 1952.
Both the Governments have independent jurisdiction for passing of the order under their respective laws. The comments submitted by Respondent No, 1 clearly show that he has not disobeyed the order of this Court and in fact has acted under the MPO for the reasons mentioned in his detention order. Petitioner has not brought any material on the record to establish any disobedience or disrespect by respondents to the order of this Court dated 17.2.2003.
8. The Hon'ble Supreme Court in the case WAPDA v. Chairman National Industrial Relations Commission (PLD 1979 Supreme Court 912) at page 915 held as under: The matter of contempt is essentially between the Court and the contemner. If the Court concerned for reasons of its own 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 any other 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."
A Division Bench of this Court also in the case of Saif-ul-Haq Ziay v. Majid Nizami etc., (NLR 1998 Criminal 231) observed at page 233 as under-- "the proceedings for contempt are to be resorted to sparingly and once the matter is brought to the notice of the Court then it is a matter between the Court and the contemner. Furthermore, the Courts are not supposed to act with any vendetta in such like proceedings."
9. Petitioner failed to adduce any material on the record to establish any violation by respondents to the order of this Court. In the facts and circumstances of the case and the law referred above. I am clearly of the view that respondents have not committed any contempt of Court. The petition is baseless and is dismissed.