PLJ 1998 Cr. C (Quetta) 1119 DB
Present: raja fayyaz ahmad & amanullah khan yasinzai, JJ. Sheikh IFTIKHAR ALI-Appellant
versus
STATE-Respondent
I.C.A. No. 4 of 1997. decided on 6.1.1998.
Contempt of Courts Act, 1976 (LXIV of 1976)--
—-Ss. 3 & 4-Publication of scandalous news item in daily Newspaper to lower status of judges and to disrepute judiciary as whole-Unconditional apology tendered by contemner found unsatisfactory by court-Awarding of sentence of six months. S.I. with fine-Inter Court appeal against sentence-Appellant at his earnest tendered unqualified apology and placed himself at the mercy of court during contempt, proceedings, he explained that at relevant time he was at Rawalpindi and no sooner he came to know, about offending headline published in Newspaper Lahore (Supplement); immediately on Tax' removed Chief News Editor of Lahore from employment-Appellant did not contest proceedings nor put any defence neither engaged any counsel to represent him and by tendering apology he admitted his guilty expressed in unequivocal terms-His sincere, honest repentance and remorse, with categorical assurance to be extremely careful in future-Such unconditional apology furnished mitigating circumstances against gravity of offence which though not purgation of gross contempt committed by appellant, as has been rightly held by Hon'ble Judge finding appellant guilty for charge- Held : Appellant has rightly been convicted by Hon'ble judge of High Court-However, in view of peculiar facts and circumstances of appellant's case coupled with his unqualified apology expressing serious and sincere remorse, High Court (DB) order for reprieve of remaining sentence of imprisonment of appellant, as period of imprisonment already undergone by appellant would be sufficient to meet ends of justice, in vindicating honour and dignity of court-Appellant be set at liberty forthwith, subject to sentence of fine in terms of impugned judgement- Appeal disposed of in above terms. [P. 1134] A & B
Mr. AshtafAusafAli, Advocate for Appellant. Mr. NoorM. Achakzai, Addl. A.G. for State. Date of hearing: 6.1.1998.
judgment
Raja Fayyaz Ahmad, J.-This appeal U/S. 10 of the Contempt of Courts Act, 1976 has been preferred against the Judgment and Order passed by the Hon'ble Single Bench of this Court whereby the appellant was found guilty for the Offence U/S. 3 of the Contempt of Courts Act, 1976 and accordingly sentenced to six months, SI, with a fine of Rs. 5,000/- and in default of payment of fine ordered to further undergo SI for a period of one and a half month.
2. The stated facts of the case in brief are to the effect that on 10th December, Ir987 Sessions Judge (Inspection) placed a report before Hon'bleChief Justice that a ews Paper Daily 'LASHKAR' Lahore, containing derogatory head-line-has been published on 28th November, 1997 which not only is completely false but also amounts to scandalize and disrepute the s Judges and the Institution, as a whole. The substance of the objected head- line was also noted in such report. On such report the Hon'ble Chief Justice, passed the following order :--
"The very headline of the News prima facie appears to scandalize and to bring disrepute to the court. For further action matter be placed before Mr. Justice Iftikhar M. Chaudhry."
3. On receipt of file and perusal of the objected caption of the aforementioned News Paper the Hon'ble Judge Mr. Justice Iftikhar Mohammad Chaudhary directed in chambers on 10-12-1997, to register this case as petition for 'Contempt of Court' because the caption of the Newspaper 'Lashkar' reveals that to scandalize the Judges in order to lower their status, a false and baseless news with the headline which may create sanction in the general public has been published. The learned Judge seized of the matter on 10-12-1997 passed the following order in court.
"A perusal of the capition/title of Daily Lashkar, Lahore, revealed that the News Item was published on 28-11-1997, to scandalize the Judges of this court, in order to lower their status and disprepute the Judiciary, as a whole, basing a false and incorrect material. It further indicated that news was reported by Munir Ahmad, Bureau Chief.
Mr. K.N. Kohli, Advocate who is present in court stated that Newspaper Daily Lashkar is also published from Quetta.
Before issuing notices for the Editors/publishers of Daily Lashkar Lahore, I deem it proper to summon the Bureau Chief Munir Ahmad of Daily 'Lashkar', Lahore stationed at Quetta, so he may furnish further information for issuance of notices and action.
SHO, Bijli Road Police Station is directed to effect service and produce him before the court on 12-12-1997.
4. Pursuant to the above directions Munir Ahmad claiming himself to be Bureau Chief of Daily 'Lashkar' appeared on 12-12-1997 before the Hon'ble Judge and stated that Sheikh Iftikhar Adil (Appellant) s/o Sheikh Mukhtar Ahmad resident, of B-27 Temple Road, Lahore is the Editor-in-Chief/publisher and printer of the News paper. Munir Ahmad the Bureau Chief for Balochistan filed art application before the learned Judge offering explanation that he had despatched a news item to the Daily Lashkar, Lahore through its Editor-:n-Ciiief but in such communication despatched by him, it was not mentioned that any FIR has been registered against the Judges of this court and according to him objectionable heading in the title of the news printed by the Editor-in-Chief. The Bureau Chief Munir Ahmad alongwith his application filed extract/contents of news sent by him to his Head Office at Lahore for publication alongwith the news item published in the newspaper which according to him be had obtained from the Head Office on Tax'yesterday i.e. 11-12-1997.
On having received the above noted details/particulars of the Editor, publisher and printer; the Hon'ble Judge came to the conclusion that the offending material published in Daily Lashkar, Lahore dated 28-11-1997 amounts to scandalize the -ludgea of this Court in order to lower their statu and also to disrepute the Judiciary as a whole consequently in the opinion of tne learned Judge, the Editor in Chief, publisher, printer as well as the Bureau Chief Munir Ahmad wereprima fade liable for action under section 3/4 of the Contempt of Courts, Act. 1976. Therefore, notices were ordered to be issued to them to explain, as why they should not be dealt with under reievdnt Provision of Law.Sheikh Iftikhar Adil (Appellant) Editor-in-Chief of Daily Lashkar, Lahoie pursuant to show cause notice issued to him, on 15-12-1997 appeared before the Hon'ble Judge and filed reply of the notice wherein he tenderedv.n-coiiditional apology and placed himself at the mercy of the court whofurther xplained that Chief News Editor Man Ehsan committed omissionin publishing the objectionable News item in 'supplement,' Daily 'Lashkar'Lahore dated 28-11-1997. oth the replies filed by the Appellant, and BureauChief Munir Ahmad were not found satisfactory and the matter was fixed forcharge on 1.6-12-1997. On the date ixed charge sheet alongwith thestatement of allegations separately prepared were given to the Editor-in-Chief Sh : Iftikhar Adil and Bureau Chief Daily Lashkar at uetta who weredirected to submit reply, if any, and also to furnish the list of witnesses theyintend to produce in support of their plea alongwith the reply. It may benoted that Irfan-ul-Haq S/o Ehsan-uMlaq resident of Lahore Ex-ChiefNews Editor Daily Lashkar, Lahore was produced by the appellant/contemner in pursuance of order of the Hon'ble Judge, dated 28-11-1997;who on his own filed an application wherein he admitted and accepted theobjected ews item appeared in Daily Lashkar (Lahore) 'supplement' dated28-11-1997 to have been issued by him and tendered un-conditional apology.In order to meet with the equirements of law, notice was issued to him bythe learned Judge Under Section 3/4 of the Contempt of Courts Act, 1976 toexplain as to why he should not. be unished for publishing highly offendingnews item dated 28-11-1997 scandalizing Judges of this court, in order tolower their status and disrepute the Judiciary as a hole. n such date, theappellant Sh. Iftikhar Adil Editor-in-Chief placed on record photocopy of thedeclaration of Daily 'Lashkar', Lahore. The appellant on 19-12-997submitted reply to the charge sheet wherein lie tendered apology, however;explained reasons which culminated eeatually into the publication ofobjectionable material in Daily 'Lashkar' (supplement) Lahore dated 28-11-1997. Likewise Malik Munir Ahmad Daily 'Lashkar', Lahore Bureau Chiefstationed at uetta filed his reply thereby tendering un-conditional apologyand reply to show cause notice was also filed by Irfanul Haq 'Chief NewsEditor' which was also found by he Hon'ble Judge to be un-satisfactory;accordingly charge sheet alongwith the statement of allegations were handedt over to Irfanul Haq for reply; who filed his eply to the charge sheet and.sstatement of allegations before the learned Judge on 23-12-1997, tendering cun-conditional apology, since the contemner had ccepted their liability andcprayed to be pardoned by tendering un-conditional apology, therefore, theclearned Judge did not deem it fit to record evidence and heard the- Add!;
Advocate General and the corrteainers. Finally the Hon'ble Judge vidt impugned judgment dated 26-12-1997 convicted i.e. Sheikh Iftikhar Adil (correct name as Sheikh Iftikhar Ali) and Irfanul Haq, the Editor-in-Chief and Chief News Editor respectively by sentencing them each to suffer S.I. for six months with fine of Rs. 5,000/- and in default of fine to further undergo S.I. for one and half month each, whereas; Bureau Chief Malik Monir Ahmad acquitted of the charge, for the reason mentioned in the impugned judgment.
5. We have heard the learned counsel for the appellant Mr. Ashtar Ausaf Ali and Mr. Noor Muhammad Achakzai, Addl : Advocate General at length.
The learned counsel for the appellant at the very out set of his submissions, contended that he does not contest the case on merits and frankly submitted that in such like matter a counsel owes his prime duty to upheld the dignity and honour of court and with all respects and heavy heart for the wrong done which cannot be remedied, he does not hold a brief to be argued but, simultaneously with all grace and indulgence of the court, he pursuant to the un-conditional apology tendered by the appellant which the learned counsel re-affirmed, submitted that :-
(a) By tendering un-conditional apology, the appellant has thrown himself at the mercy of court and referred to the contents of such tendered apology.
(b) Prayed for mercy and through un-conditional apology tendered by the appellant; needs the sagacity, compassion,forgiveness and benevolence of the court in the light of canons of justice. The remorse, repentance on the part ofthe appellant: though cannot be a fraction of any remedy to the wrong done, yet could be considered and taken as re deeming and mitigating circumstances in appealing to theparental jurisdiction and conscience of the court to be pardoned: which is more at to the Injunctions of 'HolyQurair tu forgive/pardon.
(c) The appellant no sooner learnt about the objectionable leading/headline of news, removed the News Editor inChief through 'Fax' while he was at Rawalpindi at the relevant time, who made clean breast of his responsibilityand did not contest the proceedings and threw himself at the mercy of the Hon'ble Court, seeking uii-conditionalapology.
(d) Severe reprimand in view of the above facts and reasons would meet the end of justice and the learned counselplaced reliance on the reported judgments i.e.Habibul Wahab Elkhari vs. Khan Abdul Wall Khan PLD 1978 SC 85, PLD 1994 SC 574 and Sh. Zahoor Ahmad vs. SherAli and others 1977 P. Crl. L.J. 852.
The learned Addl : Advocate General Mr. Noor Muhammad Achakzai contended that the publication of supplement of the Newspaper containing highly scandalizing leading/headline exposed the guilty mind of ihe eontemners who deserve no leniency. According to the learned Addl : Advocate General tendering un-conditional apology or expressing remorse under no circumstances in such like serious matter left no exception for the contemner. He placed reliance on NLR 1980 (Cr.) 722 and NLR 1980 (Cr.) 726.
6. Before dilating upon the above noted contentions/reasons putlbrth on behalf of the parties, it would be relevant to refer to the objectionable headline of the Newspaper which contained the following lead. "Report of theft case had been registered against Chief Justice Balochistan High Court."
As regards the substance of the news conveyed to the Head Office by Malik Munir Ahmad Bureau Chief, was an information about details of a case pertaining to the Contempt of Court initiated by this Court against one Azem Jan Zarkoon and the news so despatched by Malik Munir Ahmad, as also observed by the Hon'ble Judge did not indicate his intention to scandalize the Judges of this court.
Following in the text of the un-conditional apology tendered by Iftikhar Aadil Editor-in-Chief Daily Lashkar, Lahore.
7. The contemner Irfaawl Haq, Ex-Chief News Editors on .16-12 1995 tendered the unconditional apology in the following terms :-
"It is respectfully submitted that the applicant admits and accepts the news item appeared in daily 'Lashkar' supplement dated 28th November, 1997 and renders unconditional apology and I put myself entirely at the mercy of the court."
In reply to the charge sheet and statement of allegations the contemner Irfanul Haq, on 23-12-1997 with reference to his above noted unconditional apology again tendered the pardon in the same terms. It may be noted that none of the contemners denied the charge, tendered unconditional apologies and offered explanations noted above.
%. It is an admitted feature of the case that the offending headline, published in the newspapers apparently meant and objected to scandalize the Hon'ble Chief Justice and the learned Judges and such a maligning, contemptuous and malafide act; directly has the impact in shaking public confidence in Courts and tantamounts to affect adversely the Administration of Justice; while the serious allegations against the personal conduct of Judges also tend to prejudice the public confidence besides undermining the authority of court. By imputing false criminal allegations against the Judges, as in the instant case, is a gross contempt and mischief which besides other repercussions; acts sharply on the minds of innocent readers and no impunity, exception or any explanation could be offered or to be sufficient to dislodge the it's ordinary impression, adverse effects and the apparent intended and manifest impact on the minds of the people created by the offending headline of the newspaper; in addition to the disrepute, scandalizing Hon'ble Chief Justice and a serious blow on the esteemed and honoured Institution of courts.
9. Adverting to the cited case law by the learned counsel for the appellant, in some what identical matter, in the case of Habibul Wahab Elkheri vs. Khan Abdul Wall Khan and 4 others reported in PLD 978 SO 85, the Hon'ble Supreme Court considering the sorrow expressed by the respondent during the proceedings of contempt of court, it was observed by the Hon'ble Supreme Court.
"After considering the statement made before us by Mr. Abdul Wali Khan as to the circumstances in which he came to make the offending remarks, and the submissions made by the learned Attorney-General as well as the petitioners in both these case, we are of the view that the dignity and the authority of the Court have been duly vindicated, and it is not necessaiy to proceed any further in this behalf. Mr. Abdul Wali Khan has 'unambiguously reiterated his respect and regard for the Supreme Court, and also the fact that he had no intention of maligning the Court or attributing motives to any of its Judges, and that he was sorry if any statements or remarks made by him had tended to give a contrary impression. He has size expressed his determination not to repeat such remarks in future."
The Hon'ble Supreme Court dealing with the matter of 'Direct contempt of court' having been established but in view of mitigating circumstances as per majority verdict, severe reprimand was ordered in the interest of justice, in the matter regarding contempt of court proceedings against General (Retd) Mirza Aslam Baig reported in PLD 1993 SC 310; the Hon'ble Chief Justice and Hon'ble Judge Mr. Justice Wali Mohammad Khan observed :
"There are cases like the present one for example, a grand jury report filed in open Court if contemptuous, was treated as "direct contempt" even if the grant jurer was absent from the Court when its contents became known. Similarly written statement amounting to contempt of Court if presented before the Court, it is analogous to contempt committed in the presence and lace of the Court. Thus in so far as the direct contempt is concerned there is not much difference between the words spoken or acts done in face of the Court or statement submitted to it in writing. Similarly there is no difference in a case where contempt is committedin the face of the Court or where it is scandalized by a published, printed or written material. In this connection making of an irrelevant or scandalous attack in a pleading tiled in Court is a direct, contempt, which as already observed can be dealt with immediately brevimaim. So was the case when the statement of the respondent dated 12-2-1993 was presented and persistently pressed in the Court..
In the light of the foregoing discussion we feel that when the respondent filed the statement dated 12-2-1993, in Court and when taking note thereof the other Bench of this court earlier dealing with the case, made remarks which have rightly been taken as severe admonition and reprimand, in so far as the retrieving of the honour and dignity of the Court is concerned. The purpose and object of the law of contempt thus stood satisfied. Not only this, subsequently the respondent in his statements and conduct gave respect and high regard to the Court; by not, only submitting to its directions and orders but also by accepting in writing various elements already analysed which can operate as mitigation in his favour.
It. is true that if we were to act on the precedent in the ease of Mr. M. Anwar, a fresh severe reprimand at this concluding stage might have been necessary: but in our view once a reprimand having been administered by the other Bench, repeating it for the second lime in the circumstances of the present, ease is not necessary."
The Hon'ble Judge Mr. Justice Saeeduzzaman Siddiqi and Mr. Justice Abdul Qadeer Chaudhry agreeing with tie judgment in the above noted matter observed :
"For reasons to be recorded later. I have reached the conclusion that the charge of contempt of Court has been established against the respondent and accordingly, I convict him for committing contempt, of this court,, However, on the question of sentence, I agree with the learned Attorney-General that there are mitigating circumstances in the case and keeping in view the same, 1 feel that a severe reprimand to respondent, would serve the ends of justice in this case. It is ordered accordingly." and while writing the reasons for the above noted conclusions, the Hon'ble Mr. Justice Saeeduzzaman Siddiqui, J. held : (PLD 1994 SC 574).
"Having found the respondent gxiilty of Contempt of this Court the next question for consideration in the case in the sentence to be awarded to the conteomer. The learned Attorney-General very candidly and fairly stated before us that although respondent is guilty of Contempt of this Court on the basis of his admitted statement, but he is entitled to he dealt with leniently, in view of several mitigating circumstances in the case. The learned Attorney-General pointed out that the above statement was made by the respondent long after the decision of Haji Saifullah's case (supra) by this Curt. The iearned Attorney-General further pointed out that Mr. Wasim Sajjad, Chairman of the Senate, who voluntarily appeared with the permission of the Court, to record his statement in the case, and through whom respondent claimed to have sent the message to the Court, in his statement on oath before the Court, denied to have ever carried any message to this Court on behalf of respondent during the pendency of Haji Saifullah's case (supra). Mr. Wasim Sajjad also stated in his statement before the Court that during the discussion with the respondent when he visited G.H.Q., the latter had told him "it does not matter to him what decision is given by the Supreme Court as that was in the prerogative of the Court". According to learned Attorney-General, these circumstances show that the respondent had not tried to influence the judgment of this Court in Haji Saifullah's case (supra). The learned Attorney-General also invited our attention to the following passage in one of the two statements filed by respondent in the case on 1-3-1993 :-
"that the regretful situation which arose after the event on 4-2-1993 and the consequent embarrassment caused to this Honourable Court, is most unfortunate and is deeply regretted. The respondent never intended to scandalize this Honourable Court or to cause it any embarrassment. The respondent firmly believes in the supremacy of law and that nobody is above law."
The learned Attorney-General on the basis of the above facts and circumstances argued that the respondent has not shown any contumacy in his actions and has rather expressed his remorse for the same. The learned Attorney-General, accordingly, referred to the case of Inayat Khan v. M, Anwar (supra) and contended that in similar circumstances this Court had only reprimanded the contemner.
Mr. Fakharaddin G. Ebrahim, the learned counsel for the respondent could not, advance any argument to demonstrate that the above statement which the respondent admitted that he made to the Press at. Lahore on 4th February, 1993, did not amount to Contempt of this Court.
Keeping in view the facts and circumstances of the case, I am inclined to agree with the contention of learned Attorney-General that in view of the mitigating circumstances in the case a severe reprimand to respondent will meet the ends of justice in this case. It is ordered accordingly.
Dealing with the effect of un-qualified apology the Hon'hle Division Bench of the Lahore High Court in the case of Sk. Zahoor Ahamd vs. Sher All & others reported in 1977 P, Cr. L.J. (Lah.) 852 held :
"Every case proceeds on its own facts and there are also authorities where the Courts have despite an unqualified apology proceeded to convict a contemner and visit him with substantial penalty. Thus in the case of Arif Nizami and Attorney-General v. YousafAli Khan (4), Their Lordships of the Supreme Court did not consider the unqualified apologies of the contemners even though tendered at, the earliest opportunity as constituting sufficient amends and went on to impose penalties on them. These were no doubt cases which fell under that category of contempt which is known as 'scandalizing the Court', hut we do riot see why the same view cannot be taken on contempts of other types when these are of the grossest nature. It is to be observed that in contempt cases a Court is itself the causer as well as the Judge and in view of this unenviable position it is often inclined to take a very favourable view of the apology, but it does so only by way of grace and not. as already pointed ut, on the basis of any imperative rule of law."
The question of apology by the contemner has been examined by the Hon'ble Supreme Court in appeal case i.e. Mohammad Yunas vs. The State, reported in PLD 1976 SC 449 wherein it, was observed and held ;
"The sentence of imprisonment passed against the appellant is the maximum permissible under the law, but it was passed because the learned Judge in Chambers was not satisfied about the genuineness of the apology submitted by the appellant. Now, apart from the fact that the learned Judge in Chambers was in a better position than we are to decide whether the apology submitted was genuine, I agree with the view that an apology submitted mechanically is not sufficient by itself to purge the conternner's contempt. A contemner cannot save himself from punishment by submitting an insincere apology. He must sxibmit an unconditional apology and show by his conduct that he has repented of his behaviour. Additionally, the learned Single Judge has also taken into account the fact that interference with the Courts was increasing, and it cannot be said that this was a circumstance extraneous to the law of contempt.
Mr. Butter, however, stressed the fact that the appellant was genuinely repentant and that he had perhaps not been able to express himself clearly because he was not assisted by counsel. This aspect of the case requires examination, but the better course for the appellant would be to approach the learned Judge in Chambers again. In this view of the matter, as to the authorities cited by learned counsel, I would only observe that I would re-affirm the view taken in the majority judgment of this court in Awal's case, and it was unfortunate that the attention of the learned Judge in Chambers was not drawn to this judgment. Therefore, on this ground, also, the appellant should approach the High Court again.
Mr. Buttar then pointed out that as a layman, the appellant was not in a position to give any assistance to the Court. That is correct. And the fiutlinr submission was that the Court itself should have asked the appellant whether he wanted to engage a lawyer. Now whilst there cannot be any doubt, about the Court's power to punish summarily for a contempt committing in the face of the Court,, and the contempt in the instance case was of this obnoxious type, the contemners bad submitted their apologies and the law of contempt is not as simple as it was a hundred years ago. It also does not appear that the Court, was assisted by the Advocate-General, Therefore, I venture to think that it would have been batlur «;' the learned Judge in Chambers had given the appellant an opportunity of engaging counsel if he so wished. Such a procedure may not be required by law, but if it i.s followed it will half 10 ensure that the judgments of the High Coun are riot contrary the law declared by this Court. Further what is far more important is that if such procedure is followed especally in those cases in which the Court has any intention of passing a sentence of imprisonment, justice will not only be done but will be seen to be done and, in my humble opinion, this will enhance and not diminish the dignity of the Courts which is the ultimate object of the law of contempt.
The appellant should, therefore, approach the High Court; again and if an application in this respect is filed it should be placed imrnadiately before the learned Judge in Chambers as the appellant has already been in jail for three months. With these observations the appeal is dismissed."
Similarly the purgation of contempt of court in the light of apology tendered by the contemner was examined by the Hon'ble Lahore High Court in the case i.e. The State vs. Shaukat All and 3 others reported in PLD 1976 (Lahore) 355 and it was held :-
"Sh. Shaukat Ali also gave an interview to a monthly journal 'Dhanak' which was published in its issue of August 1995, wherein the made disparaging remarks against the Supreme Judicial Council of Pakistan. The Supreme Judicial Council issued notice of contempt to him in that connection. He was found guilty and was bound down for good behaviour for one year after he had tendered an unqualified apology. In 1971 while respondent No. 1 was serving as a Judge of the High Court, he was charged for misconduct in the discharge of his duties, In re : The President v. Mr. Justice Shaukat Ali (1). During the course of the scrutiny of liis assets before the Supreme Judicial Council too he behaved similarly and committed its contempt and it was only when he was warned of stern action that better sense prevailed on him and on his apology the proceedings were dropped, and it was held that he had acted in a manner wholly unbecoming of a Judge. It is deplorable to find that respondent No. 1 has developed a tendency or. shall we say, the habit to commit repeated contempts of the superior Courts in the Country and then after he is faced with the dire consequences to beg for apology and throw himself entirely at the mercy of the Court. In Sub-Judge, First Class, Hoshangabad v. Jawahar Lal Ramchand Parwar. (1), at pages 408, column 2 and 409, column 1, at it was held that:
"An apology is not a weapon of defence forged to purge the guilty of their offences. It is not an additional insult, to be hurled at the heads of those who have been wronged. It is intended to be evidence of real contritness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrongdoer's power. Only then is it of any avail in a Court of justice. But before it can have that effect it would be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage, the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge (when that happens, as it did here) has indicated the trend of his mind. Unless thai is clone, not only in the tendered apology robbed of all grace but it cease to be an apology; it ceases to be the full, frank, namely confession of a wrong done which it is intended to be. it becomes instead the cringing of a coward shivering at the prospect of the stern hand of justice about to descend upon his head. It then deserves to be treated with the contempt with which cowards arid bullies who do. not hesitate to threaten others and to impugn their honesty and character without, the slightest foundation and who cringe and wail when their own safety is at stake, are treated. However, I do not intend to make a point of this case because of the misconception which is prevalent in these parts about the meaning, nature and effect of an apology; nor of course am I intending to lay down any universal rule or to ignore the proviso to section 3, Contempt of Courts Act of 1926. I refer to the matter in these strong terms only in order that there should be no misconception about apologies in the future and ab»'«it ths practice in respect of the tendering of them, and in. order that there should be no possible mistake about my meaning and attitude. Mere lip service to a formula without any contrition of heart will not do."
The Hon'ble Division Bench of Hie Lahore High Court in the case ofRana Muhammad Akram Khan us. The State reported in, 1993 P.Cr.L.J. 2044 made the following observations about the contempt against the Judges of Superior Courts were an unqvalified written apology though was
tendered :
'T")is bfi1" i ',f •- i i-v of this Court cannot wipe out "•it1-! pit .,•!n n inch is not a defence to the charge ? ^\ * ss <•,"< ,* t tK learned Single Bench, it is only a mitifa- i»g l ' i rMonie1- The proposition that the moment a} "l'"1^ ' f*Ji<ertd 1»V the contemner, the contempt however gross and unexcusable may be, automatically purged cannot be conceded to, rather the question whether the apology lias the effect of purging or not is to be decided with reference to the facts and circumstances of each case. It is difficult to lay down a general proposition that the tendering of apology automatically purged contempt thereby giving licence to the people to defame Courts and Judges and then come with a beautifully worded apology. Therefore. an apology in a contempt case is not defence but a mitigating circumstance that too if it is tendered sincerely and unconditions.!!},' having the effect on the mind of the Court that, it is unconditional and sincere and it can hardly be rejected. Unconditional written apology expressing profound and real regret is a. gesture to appreciate but if the allegations are of extme serious nature particularly in the cases where the allegations are against the Judges of the superior Courts, the contemner should be dealt with strictly and seriously with no leniency,
The contempt proceedings are quasi-criminal in nature, and therefore, benefit or every doubt should go to he accused. The jurisdiction of the superior Court to take action for contempt of their own authority is always jealously guarded but, it is to be exercised sparingly. In case of a person apparently defying order of the Court but leaving room for doubt with regard to his intention and belief, possibly that he acted either mistakenly or on wrong notion and advice about his duty with regard to the compliance of the order of the Court, the benefit of doubt should ungrudgingly be given to him.
The appellant before this Court has again tendered a sincere unqualified apology with undertaking to be careful in future with the submission that he proceeded in the matter without the intention to flout the order but for some misunderstanding and misguidance for which he is badly and seriously perturbed. He, while placing himself at the mercy of the Court submitted that he has always been highly respectful to this Court and never thought to degrade its dignity, honour and authority. We feel that the appellant for want of proper advice and due to misguidance, having soft corner for his subordinate proceeded in the matter without realising that it could call trouble for him, therefore, the possibility of his proceeding in the matter without the intention of disobeying the order of the Court or to lower it dignity cannot be ruled out and the benefit arising in the situation as to whether he acted deliberately or proceeded in the case with no bad intention is to be given to him. We are also of the view that while treating the unconditional apology tendered by the appellant as his admission, to guilt, he should have been provided an opportunity to make his defence on the point that his act was not deliberate and intentional before convicting him. We, therefore, giving him the benefit of doubt, arising in the circumstances of the case coupled with the fact that he has sufficiently been reprimanded and faced mental agony, as a matter of grace and gesture, accept the unconditional apology tendered by him before the learned Single Judge and also before us and while accepT-in,? bis appeal set aside his conviction and sentence ai;d acqxii! him of the charsre."
The rationale of the above quoted judgments in our humble opinion are that even in case of gross contempt, to which proposition we are confronted with; an earnest unconditional honest, sincere and penitent apology, per se would not be a ground for defence or to seek acquittal, however; if the conscience of the court is satisfied that such an unconditional apology tendered by the contemner qualifies the above noted conditions and keeping in view all the attending facts and circumstances of the case; the court may pass appropriate orders as it may deem fit. to vindicate the honour and dignity of the court and its Judges in the ends of justice.
11. The learned Additional Advocate General in support of his contentions placed reliance on the reported judgment i.e. NLR 1980 (Criminal) AJK 722, and 726 but the cited cases are distinguishable as the contemner during the proceedings did not express any remorse andcontested the charge.
12. In the instant case the appellant at his earnest tendered unqualified apology and placed himself at the mercy of the court during thecontempt proceedings, he explained that at the relevant time he was at Rawalpindi and no sooner he came to know about the offending headlinepublished in Daily Lashkar, Lahore (Supplement); immediately on Tax' removed the Chief News Editor of Daily 'Lashkar' Lahore from employment.The appellant did not contest the proceedings nor pnt any defence neither engaged any counsel to represent him and by tendering apology he admittedhis guilty expressed in unequivocal terms, in our view his sincere, honest repentance and remorse, with categorical assurance to beextremely careful in future; to us such an nconditional apology furnishes mitigating circumstance against the gravity of the offence which though not a purgation of the gross contempt committed by the appellant, as has been rightly held by the Hon'ble Judge finding the appellant guilty forthe charge.
13. In view of the above noted reasons we, are inclined to hold that the appellant has rightly been convicted by the Hon'ble Judge of this court,however; in view of the peculiar facts and circumstances of the appellant's case coupled with his unqualified apology expressing serious and sincere remorse, we order for the reprieve of the remaining sentence of imprisonment of the appellant, as the period of imprisonment alreadyundergone by him would be sufficient; to meet the ends of justice, in vindicating the honour and dignity of the court. The appellant be set atI liberty forthwith, subject to the sentence of fine in terms of the impugned judgment; and if not detained in connection with any other case; consequently the appeal is disposed of in the above terms. We orderi accordingly.
(K.K.F.) Orders accordingly.
Present: raja fayyaz ahmad & amanullah khan yasinzai, JJ. Sheikh IFTIKHAR ALI-Appellant
versus
STATE-Respondent
I.C.A. No. 4 of 1997. decided on 6.1.1998.
Contempt of Courts Act, 1976 (LXIV of 1976)--
—-Ss. 3 & 4-Publication of scandalous news item in daily Newspaper to lower status of judges and to disrepute judiciary as whole-Unconditional apology tendered by contemner found unsatisfactory by court-Awarding of sentence of six months. S.I. with fine-Inter Court appeal against sentence-Appellant at his earnest tendered unqualified apology and placed himself at the mercy of court during contempt, proceedings, he explained that at relevant time he was at Rawalpindi and no sooner he came to know, about offending headline published in Newspaper Lahore (Supplement); immediately on Tax' removed Chief News Editor of Lahore from employment-Appellant did not contest proceedings nor put any defence neither engaged any counsel to represent him and by tendering apology he admitted his guilty expressed in unequivocal terms-His sincere, honest repentance and remorse, with categorical assurance to be extremely careful in future-Such unconditional apology furnished mitigating circumstances against gravity of offence which though not purgation of gross contempt committed by appellant, as has been rightly held by Hon'ble Judge finding appellant guilty for charge- Held : Appellant has rightly been convicted by Hon'ble judge of High Court-However, in view of peculiar facts and circumstances of appellant's case coupled with his unqualified apology expressing serious and sincere remorse, High Court (DB) order for reprieve of remaining sentence of imprisonment of appellant, as period of imprisonment already undergone by appellant would be sufficient to meet ends of justice, in vindicating honour and dignity of court-Appellant be set at liberty forthwith, subject to sentence of fine in terms of impugned judgement- Appeal disposed of in above terms. [P. 1134] A & B
Mr. AshtafAusafAli, Advocate for Appellant. Mr. NoorM. Achakzai, Addl. A.G. for State. Date of hearing: 6.1.1998.
judgment
Raja Fayyaz Ahmad, J.-This appeal U/S. 10 of the Contempt of Courts Act, 1976 has been preferred against the Judgment and Order passed by the Hon'ble Single Bench of this Court whereby the appellant was found guilty for the Offence U/S. 3 of the Contempt of Courts Act, 1976 and accordingly sentenced to six months, SI, with a fine of Rs. 5,000/- and in default of payment of fine ordered to further undergo SI for a period of one and a half month.
2. The stated facts of the case in brief are to the effect that on 10th December, Ir987 Sessions Judge (Inspection) placed a report before Hon'bleChief Justice that a ews Paper Daily 'LASHKAR' Lahore, containing derogatory head-line-has been published on 28th November, 1997 which not only is completely false but also amounts to scandalize and disrepute the s Judges and the Institution, as a whole. The substance of the objected head- line was also noted in such report. On such report the Hon'ble Chief Justice, passed the following order :--
"The very headline of the News prima facie appears to scandalize and to bring disrepute to the court. For further action matter be placed before Mr. Justice Iftikhar M. Chaudhry."
3. On receipt of file and perusal of the objected caption of the aforementioned News Paper the Hon'ble Judge Mr. Justice Iftikhar Mohammad Chaudhary directed in chambers on 10-12-1997, to register this case as petition for 'Contempt of Court' because the caption of the Newspaper 'Lashkar' reveals that to scandalize the Judges in order to lower their status, a false and baseless news with the headline which may create sanction in the general public has been published. The learned Judge seized of the matter on 10-12-1997 passed the following order in court.
"A perusal of the capition/title of Daily Lashkar, Lahore, revealed that the News Item was published on 28-11-1997, to scandalize the Judges of this court, in order to lower their status and disprepute the Judiciary, as a whole, basing a false and incorrect material. It further indicated that news was reported by Munir Ahmad, Bureau Chief.
Mr. K.N. Kohli, Advocate who is present in court stated that Newspaper Daily Lashkar is also published from Quetta.
Before issuing notices for the Editors/publishers of Daily Lashkar Lahore, I deem it proper to summon the Bureau Chief Munir Ahmad of Daily 'Lashkar', Lahore stationed at Quetta, so he may furnish further information for issuance of notices and action.
SHO, Bijli Road Police Station is directed to effect service and produce him before the court on 12-12-1997.
4. Pursuant to the above directions Munir Ahmad claiming himself to be Bureau Chief of Daily 'Lashkar' appeared on 12-12-1997 before the Hon'ble Judge and stated that Sheikh Iftikhar Adil (Appellant) s/o Sheikh Mukhtar Ahmad resident, of B-27 Temple Road, Lahore is the Editor-in-Chief/publisher and printer of the News paper. Munir Ahmad the Bureau Chief for Balochistan filed art application before the learned Judge offering explanation that he had despatched a news item to the Daily Lashkar, Lahore through its Editor-:n-Ciiief but in such communication despatched by him, it was not mentioned that any FIR has been registered against the Judges of this court and according to him objectionable heading in the title of the news printed by the Editor-in-Chief. The Bureau Chief Munir Ahmad alongwith his application filed extract/contents of news sent by him to his Head Office at Lahore for publication alongwith the news item published in the newspaper which according to him be had obtained from the Head Office on Tax'yesterday i.e. 11-12-1997.
On having received the above noted details/particulars of the Editor, publisher and printer; the Hon'ble Judge came to the conclusion that the offending material published in Daily Lashkar, Lahore dated 28-11-1997 amounts to scandalize the -ludgea of this Court in order to lower their statu and also to disrepute the Judiciary as a whole consequently in the opinion of tne learned Judge, the Editor in Chief, publisher, printer as well as the Bureau Chief Munir Ahmad wereprima fade liable for action under section 3/4 of the Contempt of Courts, Act. 1976. Therefore, notices were ordered to be issued to them to explain, as why they should not be dealt with under reievdnt Provision of Law.Sheikh Iftikhar Adil (Appellant) Editor-in-Chief of Daily Lashkar, Lahoie pursuant to show cause notice issued to him, on 15-12-1997 appeared before the Hon'ble Judge and filed reply of the notice wherein he tenderedv.n-coiiditional apology and placed himself at the mercy of the court whofurther xplained that Chief News Editor Man Ehsan committed omissionin publishing the objectionable News item in 'supplement,' Daily 'Lashkar'Lahore dated 28-11-1997. oth the replies filed by the Appellant, and BureauChief Munir Ahmad were not found satisfactory and the matter was fixed forcharge on 1.6-12-1997. On the date ixed charge sheet alongwith thestatement of allegations separately prepared were given to the Editor-in-Chief Sh : Iftikhar Adil and Bureau Chief Daily Lashkar at uetta who weredirected to submit reply, if any, and also to furnish the list of witnesses theyintend to produce in support of their plea alongwith the reply. It may benoted that Irfan-ul-Haq S/o Ehsan-uMlaq resident of Lahore Ex-ChiefNews Editor Daily Lashkar, Lahore was produced by the appellant/contemner in pursuance of order of the Hon'ble Judge, dated 28-11-1997;who on his own filed an application wherein he admitted and accepted theobjected ews item appeared in Daily Lashkar (Lahore) 'supplement' dated28-11-1997 to have been issued by him and tendered un-conditional apology.In order to meet with the equirements of law, notice was issued to him bythe learned Judge Under Section 3/4 of the Contempt of Courts Act, 1976 toexplain as to why he should not. be unished for publishing highly offendingnews item dated 28-11-1997 scandalizing Judges of this court, in order tolower their status and disrepute the Judiciary as a hole. n such date, theappellant Sh. Iftikhar Adil Editor-in-Chief placed on record photocopy of thedeclaration of Daily 'Lashkar', Lahore. The appellant on 19-12-997submitted reply to the charge sheet wherein lie tendered apology, however;explained reasons which culminated eeatually into the publication ofobjectionable material in Daily 'Lashkar' (supplement) Lahore dated 28-11-1997. Likewise Malik Munir Ahmad Daily 'Lashkar', Lahore Bureau Chiefstationed at uetta filed his reply thereby tendering un-conditional apologyand reply to show cause notice was also filed by Irfanul Haq 'Chief NewsEditor' which was also found by he Hon'ble Judge to be un-satisfactory;accordingly charge sheet alongwith the statement of allegations were handedt over to Irfanul Haq for reply; who filed his eply to the charge sheet and.sstatement of allegations before the learned Judge on 23-12-1997, tendering cun-conditional apology, since the contemner had ccepted their liability andcprayed to be pardoned by tendering un-conditional apology, therefore, theclearned Judge did not deem it fit to record evidence and heard the- Add!;
Advocate General and the corrteainers. Finally the Hon'ble Judge vidt impugned judgment dated 26-12-1997 convicted i.e. Sheikh Iftikhar Adil (correct name as Sheikh Iftikhar Ali) and Irfanul Haq, the Editor-in-Chief and Chief News Editor respectively by sentencing them each to suffer S.I. for six months with fine of Rs. 5,000/- and in default of fine to further undergo S.I. for one and half month each, whereas; Bureau Chief Malik Monir Ahmad acquitted of the charge, for the reason mentioned in the impugned judgment.
5. We have heard the learned counsel for the appellant Mr. Ashtar Ausaf Ali and Mr. Noor Muhammad Achakzai, Addl : Advocate General at length.
The learned counsel for the appellant at the very out set of his submissions, contended that he does not contest the case on merits and frankly submitted that in such like matter a counsel owes his prime duty to upheld the dignity and honour of court and with all respects and heavy heart for the wrong done which cannot be remedied, he does not hold a brief to be argued but, simultaneously with all grace and indulgence of the court, he pursuant to the un-conditional apology tendered by the appellant which the learned counsel re-affirmed, submitted that :-
(a) By tendering un-conditional apology, the appellant has thrown himself at the mercy of court and referred to the contents of such tendered apology.
(b) Prayed for mercy and through un-conditional apology tendered by the appellant; needs the sagacity, compassion,forgiveness and benevolence of the court in the light of canons of justice. The remorse, repentance on the part ofthe appellant: though cannot be a fraction of any remedy to the wrong done, yet could be considered and taken as re deeming and mitigating circumstances in appealing to theparental jurisdiction and conscience of the court to be pardoned: which is more at to the Injunctions of 'HolyQurair tu forgive/pardon.
(c) The appellant no sooner learnt about the objectionable leading/headline of news, removed the News Editor inChief through 'Fax' while he was at Rawalpindi at the relevant time, who made clean breast of his responsibilityand did not contest the proceedings and threw himself at the mercy of the Hon'ble Court, seeking uii-conditionalapology.
(d) Severe reprimand in view of the above facts and reasons would meet the end of justice and the learned counselplaced reliance on the reported judgments i.e.Habibul Wahab Elkhari vs. Khan Abdul Wall Khan PLD 1978 SC 85, PLD 1994 SC 574 and Sh. Zahoor Ahmad vs. SherAli and others 1977 P. Crl. L.J. 852.
The learned Addl : Advocate General Mr. Noor Muhammad Achakzai contended that the publication of supplement of the Newspaper containing highly scandalizing leading/headline exposed the guilty mind of ihe eontemners who deserve no leniency. According to the learned Addl : Advocate General tendering un-conditional apology or expressing remorse under no circumstances in such like serious matter left no exception for the contemner. He placed reliance on NLR 1980 (Cr.) 722 and NLR 1980 (Cr.) 726.
6. Before dilating upon the above noted contentions/reasons putlbrth on behalf of the parties, it would be relevant to refer to the objectionable headline of the Newspaper which contained the following lead. "Report of theft case had been registered against Chief Justice Balochistan High Court."
As regards the substance of the news conveyed to the Head Office by Malik Munir Ahmad Bureau Chief, was an information about details of a case pertaining to the Contempt of Court initiated by this Court against one Azem Jan Zarkoon and the news so despatched by Malik Munir Ahmad, as also observed by the Hon'ble Judge did not indicate his intention to scandalize the Judges of this court.
Following in the text of the un-conditional apology tendered by Iftikhar Aadil Editor-in-Chief Daily Lashkar, Lahore.
7. The contemner Irfaawl Haq, Ex-Chief News Editors on .16-12 1995 tendered the unconditional apology in the following terms :-
"It is respectfully submitted that the applicant admits and accepts the news item appeared in daily 'Lashkar' supplement dated 28th November, 1997 and renders unconditional apology and I put myself entirely at the mercy of the court."
In reply to the charge sheet and statement of allegations the contemner Irfanul Haq, on 23-12-1997 with reference to his above noted unconditional apology again tendered the pardon in the same terms. It may be noted that none of the contemners denied the charge, tendered unconditional apologies and offered explanations noted above.
%. It is an admitted feature of the case that the offending headline, published in the newspapers apparently meant and objected to scandalize the Hon'ble Chief Justice and the learned Judges and such a maligning, contemptuous and malafide act; directly has the impact in shaking public confidence in Courts and tantamounts to affect adversely the Administration of Justice; while the serious allegations against the personal conduct of Judges also tend to prejudice the public confidence besides undermining the authority of court. By imputing false criminal allegations against the Judges, as in the instant case, is a gross contempt and mischief which besides other repercussions; acts sharply on the minds of innocent readers and no impunity, exception or any explanation could be offered or to be sufficient to dislodge the it's ordinary impression, adverse effects and the apparent intended and manifest impact on the minds of the people created by the offending headline of the newspaper; in addition to the disrepute, scandalizing Hon'ble Chief Justice and a serious blow on the esteemed and honoured Institution of courts.
9. Adverting to the cited case law by the learned counsel for the appellant, in some what identical matter, in the case of Habibul Wahab Elkheri vs. Khan Abdul Wall Khan and 4 others reported in PLD 978 SO 85, the Hon'ble Supreme Court considering the sorrow expressed by the respondent during the proceedings of contempt of court, it was observed by the Hon'ble Supreme Court.
"After considering the statement made before us by Mr. Abdul Wali Khan as to the circumstances in which he came to make the offending remarks, and the submissions made by the learned Attorney-General as well as the petitioners in both these case, we are of the view that the dignity and the authority of the Court have been duly vindicated, and it is not necessaiy to proceed any further in this behalf. Mr. Abdul Wali Khan has 'unambiguously reiterated his respect and regard for the Supreme Court, and also the fact that he had no intention of maligning the Court or attributing motives to any of its Judges, and that he was sorry if any statements or remarks made by him had tended to give a contrary impression. He has size expressed his determination not to repeat such remarks in future."
The Hon'ble Supreme Court dealing with the matter of 'Direct contempt of court' having been established but in view of mitigating circumstances as per majority verdict, severe reprimand was ordered in the interest of justice, in the matter regarding contempt of court proceedings against General (Retd) Mirza Aslam Baig reported in PLD 1993 SC 310; the Hon'ble Chief Justice and Hon'ble Judge Mr. Justice Wali Mohammad Khan observed :
"There are cases like the present one for example, a grand jury report filed in open Court if contemptuous, was treated as "direct contempt" even if the grant jurer was absent from the Court when its contents became known. Similarly written statement amounting to contempt of Court if presented before the Court, it is analogous to contempt committed in the presence and lace of the Court. Thus in so far as the direct contempt is concerned there is not much difference between the words spoken or acts done in face of the Court or statement submitted to it in writing. Similarly there is no difference in a case where contempt is committedin the face of the Court or where it is scandalized by a published, printed or written material. In this connection making of an irrelevant or scandalous attack in a pleading tiled in Court is a direct, contempt, which as already observed can be dealt with immediately brevimaim. So was the case when the statement of the respondent dated 12-2-1993 was presented and persistently pressed in the Court..
In the light of the foregoing discussion we feel that when the respondent filed the statement dated 12-2-1993, in Court and when taking note thereof the other Bench of this court earlier dealing with the case, made remarks which have rightly been taken as severe admonition and reprimand, in so far as the retrieving of the honour and dignity of the Court is concerned. The purpose and object of the law of contempt thus stood satisfied. Not only this, subsequently the respondent in his statements and conduct gave respect and high regard to the Court; by not, only submitting to its directions and orders but also by accepting in writing various elements already analysed which can operate as mitigation in his favour.
It. is true that if we were to act on the precedent in the ease of Mr. M. Anwar, a fresh severe reprimand at this concluding stage might have been necessary: but in our view once a reprimand having been administered by the other Bench, repeating it for the second lime in the circumstances of the present, ease is not necessary."
The Hon'ble Judge Mr. Justice Saeeduzzaman Siddiqi and Mr. Justice Abdul Qadeer Chaudhry agreeing with tie judgment in the above noted matter observed :
"For reasons to be recorded later. I have reached the conclusion that the charge of contempt of Court has been established against the respondent and accordingly, I convict him for committing contempt, of this court,, However, on the question of sentence, I agree with the learned Attorney-General that there are mitigating circumstances in the case and keeping in view the same, 1 feel that a severe reprimand to respondent, would serve the ends of justice in this case. It is ordered accordingly." and while writing the reasons for the above noted conclusions, the Hon'ble Mr. Justice Saeeduzzaman Siddiqui, J. held : (PLD 1994 SC 574).
"Having found the respondent gxiilty of Contempt of this Court the next question for consideration in the case in the sentence to be awarded to the conteomer. The learned Attorney-General very candidly and fairly stated before us that although respondent is guilty of Contempt of this Court on the basis of his admitted statement, but he is entitled to he dealt with leniently, in view of several mitigating circumstances in the case. The learned Attorney-General pointed out that the above statement was made by the respondent long after the decision of Haji Saifullah's case (supra) by this Curt. The iearned Attorney-General further pointed out that Mr. Wasim Sajjad, Chairman of the Senate, who voluntarily appeared with the permission of the Court, to record his statement in the case, and through whom respondent claimed to have sent the message to the Court, in his statement on oath before the Court, denied to have ever carried any message to this Court on behalf of respondent during the pendency of Haji Saifullah's case (supra). Mr. Wasim Sajjad also stated in his statement before the Court that during the discussion with the respondent when he visited G.H.Q., the latter had told him "it does not matter to him what decision is given by the Supreme Court as that was in the prerogative of the Court". According to learned Attorney-General, these circumstances show that the respondent had not tried to influence the judgment of this Court in Haji Saifullah's case (supra). The learned Attorney-General also invited our attention to the following passage in one of the two statements filed by respondent in the case on 1-3-1993 :-
"that the regretful situation which arose after the event on 4-2-1993 and the consequent embarrassment caused to this Honourable Court, is most unfortunate and is deeply regretted. The respondent never intended to scandalize this Honourable Court or to cause it any embarrassment. The respondent firmly believes in the supremacy of law and that nobody is above law."
The learned Attorney-General on the basis of the above facts and circumstances argued that the respondent has not shown any contumacy in his actions and has rather expressed his remorse for the same. The learned Attorney-General, accordingly, referred to the case of Inayat Khan v. M, Anwar (supra) and contended that in similar circumstances this Court had only reprimanded the contemner.
Mr. Fakharaddin G. Ebrahim, the learned counsel for the respondent could not, advance any argument to demonstrate that the above statement which the respondent admitted that he made to the Press at. Lahore on 4th February, 1993, did not amount to Contempt of this Court.
Keeping in view the facts and circumstances of the case, I am inclined to agree with the contention of learned Attorney-General that in view of the mitigating circumstances in the case a severe reprimand to respondent will meet the ends of justice in this case. It is ordered accordingly.
Dealing with the effect of un-qualified apology the Hon'hle Division Bench of the Lahore High Court in the case of Sk. Zahoor Ahamd vs. Sher All & others reported in 1977 P, Cr. L.J. (Lah.) 852 held :
"Every case proceeds on its own facts and there are also authorities where the Courts have despite an unqualified apology proceeded to convict a contemner and visit him with substantial penalty. Thus in the case of Arif Nizami and Attorney-General v. YousafAli Khan (4), Their Lordships of the Supreme Court did not consider the unqualified apologies of the contemners even though tendered at, the earliest opportunity as constituting sufficient amends and went on to impose penalties on them. These were no doubt cases which fell under that category of contempt which is known as 'scandalizing the Court', hut we do riot see why the same view cannot be taken on contempts of other types when these are of the grossest nature. It is to be observed that in contempt cases a Court is itself the causer as well as the Judge and in view of this unenviable position it is often inclined to take a very favourable view of the apology, but it does so only by way of grace and not. as already pointed ut, on the basis of any imperative rule of law."
The question of apology by the contemner has been examined by the Hon'ble Supreme Court in appeal case i.e. Mohammad Yunas vs. The State, reported in PLD 1976 SC 449 wherein it, was observed and held ;
"The sentence of imprisonment passed against the appellant is the maximum permissible under the law, but it was passed because the learned Judge in Chambers was not satisfied about the genuineness of the apology submitted by the appellant. Now, apart from the fact that the learned Judge in Chambers was in a better position than we are to decide whether the apology submitted was genuine, I agree with the view that an apology submitted mechanically is not sufficient by itself to purge the conternner's contempt. A contemner cannot save himself from punishment by submitting an insincere apology. He must sxibmit an unconditional apology and show by his conduct that he has repented of his behaviour. Additionally, the learned Single Judge has also taken into account the fact that interference with the Courts was increasing, and it cannot be said that this was a circumstance extraneous to the law of contempt.
Mr. Butter, however, stressed the fact that the appellant was genuinely repentant and that he had perhaps not been able to express himself clearly because he was not assisted by counsel. This aspect of the case requires examination, but the better course for the appellant would be to approach the learned Judge in Chambers again. In this view of the matter, as to the authorities cited by learned counsel, I would only observe that I would re-affirm the view taken in the majority judgment of this court in Awal's case, and it was unfortunate that the attention of the learned Judge in Chambers was not drawn to this judgment. Therefore, on this ground, also, the appellant should approach the High Court again.
Mr. Buttar then pointed out that as a layman, the appellant was not in a position to give any assistance to the Court. That is correct. And the fiutlinr submission was that the Court itself should have asked the appellant whether he wanted to engage a lawyer. Now whilst there cannot be any doubt, about the Court's power to punish summarily for a contempt committing in the face of the Court,, and the contempt in the instance case was of this obnoxious type, the contemners bad submitted their apologies and the law of contempt is not as simple as it was a hundred years ago. It also does not appear that the Court, was assisted by the Advocate-General, Therefore, I venture to think that it would have been batlur «;' the learned Judge in Chambers had given the appellant an opportunity of engaging counsel if he so wished. Such a procedure may not be required by law, but if it i.s followed it will half 10 ensure that the judgments of the High Coun are riot contrary the law declared by this Court. Further what is far more important is that if such procedure is followed especally in those cases in which the Court has any intention of passing a sentence of imprisonment, justice will not only be done but will be seen to be done and, in my humble opinion, this will enhance and not diminish the dignity of the Courts which is the ultimate object of the law of contempt.
The appellant should, therefore, approach the High Court; again and if an application in this respect is filed it should be placed imrnadiately before the learned Judge in Chambers as the appellant has already been in jail for three months. With these observations the appeal is dismissed."
Similarly the purgation of contempt of court in the light of apology tendered by the contemner was examined by the Hon'ble Lahore High Court in the case i.e. The State vs. Shaukat All and 3 others reported in PLD 1976 (Lahore) 355 and it was held :-
"Sh. Shaukat Ali also gave an interview to a monthly journal 'Dhanak' which was published in its issue of August 1995, wherein the made disparaging remarks against the Supreme Judicial Council of Pakistan. The Supreme Judicial Council issued notice of contempt to him in that connection. He was found guilty and was bound down for good behaviour for one year after he had tendered an unqualified apology. In 1971 while respondent No. 1 was serving as a Judge of the High Court, he was charged for misconduct in the discharge of his duties, In re : The President v. Mr. Justice Shaukat Ali (1). During the course of the scrutiny of liis assets before the Supreme Judicial Council too he behaved similarly and committed its contempt and it was only when he was warned of stern action that better sense prevailed on him and on his apology the proceedings were dropped, and it was held that he had acted in a manner wholly unbecoming of a Judge. It is deplorable to find that respondent No. 1 has developed a tendency or. shall we say, the habit to commit repeated contempts of the superior Courts in the Country and then after he is faced with the dire consequences to beg for apology and throw himself entirely at the mercy of the Court. In Sub-Judge, First Class, Hoshangabad v. Jawahar Lal Ramchand Parwar. (1), at pages 408, column 2 and 409, column 1, at it was held that:
"An apology is not a weapon of defence forged to purge the guilty of their offences. It is not an additional insult, to be hurled at the heads of those who have been wronged. It is intended to be evidence of real contritness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrongdoer's power. Only then is it of any avail in a Court of justice. But before it can have that effect it would be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage, the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge (when that happens, as it did here) has indicated the trend of his mind. Unless thai is clone, not only in the tendered apology robbed of all grace but it cease to be an apology; it ceases to be the full, frank, namely confession of a wrong done which it is intended to be. it becomes instead the cringing of a coward shivering at the prospect of the stern hand of justice about to descend upon his head. It then deserves to be treated with the contempt with which cowards arid bullies who do. not hesitate to threaten others and to impugn their honesty and character without, the slightest foundation and who cringe and wail when their own safety is at stake, are treated. However, I do not intend to make a point of this case because of the misconception which is prevalent in these parts about the meaning, nature and effect of an apology; nor of course am I intending to lay down any universal rule or to ignore the proviso to section 3, Contempt of Courts Act of 1926. I refer to the matter in these strong terms only in order that there should be no misconception about apologies in the future and ab»'«it ths practice in respect of the tendering of them, and in. order that there should be no possible mistake about my meaning and attitude. Mere lip service to a formula without any contrition of heart will not do."
The Hon'ble Division Bench of Hie Lahore High Court in the case ofRana Muhammad Akram Khan us. The State reported in, 1993 P.Cr.L.J. 2044 made the following observations about the contempt against the Judges of Superior Courts were an unqvalified written apology though was
tendered :
'T")is bfi1" i ',f •- i i-v of this Court cannot wipe out "•it1-! pit .,•!n n inch is not a defence to the charge ? ^\ * ss <•,"< ,* t tK learned Single Bench, it is only a mitifa- i»g l ' i rMonie1- The proposition that the moment a} "l'"1^ ' f*Ji<ertd 1»V the contemner, the contempt however gross and unexcusable may be, automatically purged cannot be conceded to, rather the question whether the apology lias the effect of purging or not is to be decided with reference to the facts and circumstances of each case. It is difficult to lay down a general proposition that the tendering of apology automatically purged contempt thereby giving licence to the people to defame Courts and Judges and then come with a beautifully worded apology. Therefore. an apology in a contempt case is not defence but a mitigating circumstance that too if it is tendered sincerely and unconditions.!!},' having the effect on the mind of the Court that, it is unconditional and sincere and it can hardly be rejected. Unconditional written apology expressing profound and real regret is a. gesture to appreciate but if the allegations are of extme serious nature particularly in the cases where the allegations are against the Judges of the superior Courts, the contemner should be dealt with strictly and seriously with no leniency,
The contempt proceedings are quasi-criminal in nature, and therefore, benefit or every doubt should go to he accused. The jurisdiction of the superior Court to take action for contempt of their own authority is always jealously guarded but, it is to be exercised sparingly. In case of a person apparently defying order of the Court but leaving room for doubt with regard to his intention and belief, possibly that he acted either mistakenly or on wrong notion and advice about his duty with regard to the compliance of the order of the Court, the benefit of doubt should ungrudgingly be given to him.
The appellant before this Court has again tendered a sincere unqualified apology with undertaking to be careful in future with the submission that he proceeded in the matter without the intention to flout the order but for some misunderstanding and misguidance for which he is badly and seriously perturbed. He, while placing himself at the mercy of the Court submitted that he has always been highly respectful to this Court and never thought to degrade its dignity, honour and authority. We feel that the appellant for want of proper advice and due to misguidance, having soft corner for his subordinate proceeded in the matter without realising that it could call trouble for him, therefore, the possibility of his proceeding in the matter without the intention of disobeying the order of the Court or to lower it dignity cannot be ruled out and the benefit arising in the situation as to whether he acted deliberately or proceeded in the case with no bad intention is to be given to him. We are also of the view that while treating the unconditional apology tendered by the appellant as his admission, to guilt, he should have been provided an opportunity to make his defence on the point that his act was not deliberate and intentional before convicting him. We, therefore, giving him the benefit of doubt, arising in the circumstances of the case coupled with the fact that he has sufficiently been reprimanded and faced mental agony, as a matter of grace and gesture, accept the unconditional apology tendered by him before the learned Single Judge and also before us and while accepT-in,? bis appeal set aside his conviction and sentence ai;d acqxii! him of the charsre."
The rationale of the above quoted judgments in our humble opinion are that even in case of gross contempt, to which proposition we are confronted with; an earnest unconditional honest, sincere and penitent apology, per se would not be a ground for defence or to seek acquittal, however; if the conscience of the court is satisfied that such an unconditional apology tendered by the contemner qualifies the above noted conditions and keeping in view all the attending facts and circumstances of the case; the court may pass appropriate orders as it may deem fit. to vindicate the honour and dignity of the court and its Judges in the ends of justice.
11. The learned Additional Advocate General in support of his contentions placed reliance on the reported judgment i.e. NLR 1980 (Criminal) AJK 722, and 726 but the cited cases are distinguishable as the contemner during the proceedings did not express any remorse andcontested the charge.
12. In the instant case the appellant at his earnest tendered unqualified apology and placed himself at the mercy of the court during thecontempt proceedings, he explained that at the relevant time he was at Rawalpindi and no sooner he came to know about the offending headlinepublished in Daily Lashkar, Lahore (Supplement); immediately on Tax' removed the Chief News Editor of Daily 'Lashkar' Lahore from employment.The appellant did not contest the proceedings nor pnt any defence neither engaged any counsel to represent him and by tendering apology he admittedhis guilty expressed in unequivocal terms, in our view his sincere, honest repentance and remorse, with categorical assurance to beextremely careful in future; to us such an nconditional apology furnishes mitigating circumstance against the gravity of the offence which though not a purgation of the gross contempt committed by the appellant, as has been rightly held by the Hon'ble Judge finding the appellant guilty forthe charge.
13. In view of the above noted reasons we, are inclined to hold that the appellant has rightly been convicted by the Hon'ble Judge of this court,however; in view of the peculiar facts and circumstances of the appellant's case coupled with his unqualified apology expressing serious and sincere remorse, we order for the reprieve of the remaining sentence of imprisonment of the appellant, as the period of imprisonment alreadyundergone by him would be sufficient; to meet the ends of justice, in vindicating the honour and dignity of the court. The appellant be set atI liberty forthwith, subject to the sentence of fine in terms of the impugned judgment; and if not detained in connection with any other case; consequently the appeal is disposed of in the above terms. We orderi accordingly.
(K.K.F.) Orders accordingly.
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