PLJ 2006 Lahore 434
[Bahawalpur Bench Bahawalpur
[
Present: Sh. Hakim Ali, J.
Mst. TAHIRA KAUSAR--Petitioner
versus
S.H.O. etc.--Respondent
W.P. No. 2018 of 2005/BWP, decided on 27.7.2005.
Constitution of Pakistan
----Art. 204--Contempt of Court Ordinance (I of 2004), S. 3--Contempt of Court proceedings against Advocate--Party wanting to get its case prolonged or transferred hired services of Mr. Riaz Hanif Rahi, Advocate who did not adopt legal way for transfer of cases, but under hand and illegal means to get cases transferred by mere filing of power of attorney in those cases--Cases in question, wherein such method was being adopted were enumerated by Court and same were pending--Such practice cannot be approved with blessings in as much as such practice was opening door of malpractice, corruption and undermining of authority of Court--Advocate concerned, manner and method of arguing case would indicate over awing and threatening Court with effort to low down and bow down the Court before him and to yield to his request at any cost--Disrespectful, disgraceful and spiteful attitude to get his desired goal is being adopted by him--Advocate such conduct prime facie, prove commission of contempt of Court--Show-cause notice was served upon Advocate concerned to explain his acts and conduct as to why contempt of Court proceedings, which prima facie were committed by him, should not be initiated/commenced against him under Art. 204 of the Constitution and Contempt of Court Ordinance 2004 and be punished for that. [Pp. 440 & 441] A, B & C
PLD 1971 SC 72; PLD 1976 SC 713; PLD 1961 Dacca
PLD 1966 SC 94 ref.
PLD 1966 SC 94 ref.
Mr. Ahmed Mansoor Chisti, Advocate for Petitioner.
Mr. Riaz Hanif Rohi, Advocate for Respondent No. 2/Appellicant in R.A. No. 3-2005 BWP.
Ch. Shafi Muhammad Tariq, A.A.G. for Respondents.
Date of hearing : 27.7.2005.
Order
Do Justice is an easy word to say, but difficult for a Judge to do justice in an atmosphere, in which a member of Bar is out to frighten a Judge by his aggressive acts, conduct, exposure, and through bickering of spoken words, overawing attitude, threatening writings and speeches, using irresponsible, irrelevant words, provocative, repulsive, rebuffing, disrespectful, disgraceful words and sentences, hateful, contemptuous, scornful, insultive language, disturbing the Court by interfering into its proceedings, not allowing the Judge to regulate the proceedings of his Court, adopting stubborn attitude, maligning the dignity and honour of a Judge, poking nose into the personal affairs of a Judge, and displaying himself a champion for the rights of others, by lowering the honour and respect of a Judge, wasting the precious time of Court by extraneous, unrelated, immaterial words and giving arguments having no nexus with the case, filing frivolous applications, conducting cases without any legal justification, superseding another engaged learned counsel after alluring the litigant to get the desired result in any event, thrusting upon the Judge with threatening voice and in such a manner that the Judge be compelled either to accede to his dictative predetermined decision or be in such a frightened state of depression so as to leave the Court room. Whether a judge in such an atmosphere can do justice needs answer, because all the above noted facts, gestures, words, and acts are some of examples and kinds of conduct to which a learned member of Bar cannot claim privilege and exemption, and a Court cannot grant to a learned Advocate a licence to do the above noted deeds and actions, as these are stumbling blocks in the smooth, and speedy doing of justice.
2. A child of law (accused) is a protected person but not a child of Bar (learned Advocate/a member of Bar). The former is considered to be an innocent at its inception unless proved otherwise, while the latter has to explain his derogatory and contemptuous actions and has to claim lawful exemptions after proving the bona fides of legally justified permissions.
3. With heavy heart, I am dictating and passing this order with the following facts. One Mst. Tahira Kausar, a young lady, had approached this Court, by invoking the writ jurisdiction of this Court, beseeching the exercise of extra ordinary jurisdiction of this Court, when she had felt that her contract of marriage with Kausar Abbas, Respondent No. 3, on 14.5.2005, which she had solemnized with her own will and free consent, was being endangered by her father Muhammad Ibrahim, Respondent No. 2, a police official, through lodging of FIR No. 100/2005, with Police Station City C-Division, Rahimyar Khan, under Sections 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with Section 34 of the PPC. She had prayed for the quashment of that FIR through the writ petition, to save her marital contract and to keep it intact, by claiming that she being a sui juris girl of the age of 19 years, had contracted marriage with Kausar Abbas, Respondent No. 3, with her own wishes, who belonged to another caste of Korai Baloch. That this act and contract of marriage of the petitioner was disliked by her father, who was putting pressure to harass and humiliate the petitioner and wanted to get annulled that marriage contract. The collusiveness of SHO, Respondent No. 1 of the above noted Police Station, with Respondent No. 2 was also alleged in the above noted writ petition. At the time of arguments, it was brought to the police of this Court that Respondent No. 2, Muhammad Ibrahim, father of aforesaid lady, because of his influence in the Police Department was using his post and privileges as a vehicle, to get the desired results. In these circumstances, on 13.6.2005, this Court had summoned the Investigating Officer for 20.6.2005, on which date, Investigating Officer was present in person. Para-wise comments were got submitted from that SHO/I.O. by Respondent No. 2, although those were never called for. Learned Advocates of the petitioner as well as of Respondent No. 2 (Muhammad Ibrahim) were present on that date. After hearing the learned counsels, the Investigating Officer was directed to record the statement of Mst. Tahira Kausar, petitioner outside the Court room and to collect all those documents, which she wanted to produce before him. After recording of the statement of the petitioner, the Investigating Officer sought a short adjournment so as to complete the investigation and probe further into the matter, which request was allowed and date of 13.7.2005 was fixed.
4. Before 13.7.2005, an application in the shape of Review, under Order 47 Rule 1 read with Sections 114 and 151 of the CPC was filed by Muhammad Ibrahim, Respondent No. 2, through Mr. Riaz Hanif Rahi, learned Advocate in the office on 12.7.2005. This review application was got fixed for 13th of July 2005. Before the commencement of Court working, Mr. Riaz Hanif Rahi, learned Advocate stood up and asked the Court to take up his application first. Learned counsel was politely replied to take his seat and to appear when his turn would come up. At the time of call of the review application in urgent motion, the learned Advocate started commanding the Court with disrespectful attitude to transfer his case to another learned Bench because as per learned counsel, this Court had committed an excess of its jurisdiction and the impugned order of getting examined the lady was passed without jurisdiction. This Court went on listening the speech of the learned counsel which was without any relevance to the case. The learned Advocate was repeatedly asked as to why this case be transferred or entrusted to another learned Bench. At last, the answer came out from the learned Advocate with very scornful, contemptuous tone and as the Court had already passed an order on 21.6.2004 in Writ Petition No. 2027-2004/BWP (Citi Council versus Province of Punjab etc.) that the cases of Mr. Riaz Hanif Rahi, Advocate might not be fixed before this Court, so, that case must be transferred to another Bench. Learned Advocate was further asked as to how a review application can be heard by another learned Bench when it was filed by him for the review of an order passed by this Court in a pending case. There was no answer to it rather attitude was threatening. As the learned Advocate was shouting and repeating the same arguments by stating that he had got a fundamental right to be heard in the case and that this Bench must not hear this case. So, due to wasting of time with repetition, a few learned Advocates, at this stage, stood up and asked Mr. Riaz Hanif Rahi, learned Advocate to allow the others to attend their cases and to get his turn after regular business was done, if he wanted much time to address the Court with his arguments. They also requested this Court to grant time to Mr. Riaz Hanif Rahi, Advocate after the urgent and regular work was over. As the precious time of the Court was being wasted, so in these circumstances, Mr. Riaz Hanif Rahi, Advocate was asked to appear and argue his case at about 1.15 p.m. This Court after having a long and heavy list of cases and due to rush of work was able to take up the case at about 1.40 p.m. But the learned Advocate blatantly refused to argue the case by stating that it was 1.40 p.m. , and he was not ready to argue the case. Although the refusal to argue the case and attitude was against decorum of the Court yet to grant an opportunity to the learned Advocate, the case was adjourned to 18.7.2005.
5. Before that date i.e. on 14.7.2005, another application Bearing No. 1641-2005/BWP was filed by Mr. Riaz Hanif Rahi, Advocate under Section 151 of the CPC read with Article IV of the Code of Conduct issued by Supreme Judicial Council. On 18.7.2005, again learned counsel stood up against his turn and asked the Court to decide this application first before proceeding further in the case. The same words and actions were repeated by the learned counsel, which also annoyed some of the learned members of the Bar, sitting in the Court room. Again the request was made by them to grant time to the learned Advocate after the remaining cause list was exhausted. At about 1.30 p.m. the case was taken up and the learned Advocate was allowed time at this choice. The learned Advocate asserted that he would like to get a decision upon C.M. No. 1641-2005/BWP first. He referred to Article IV of the Code of Conduct and read out that Article in the Court. As to how that Article of the Code of Conduct was relevant, nothing was stated by him. An objection was made by him that the office was directed by this Court on 21.6.2004 in W.P. No. 2027-2004/BWP not to fix the cases of the learned Advocate before this Court, but the office had fixed this case. Upon repeated insistence of the learned Advocate, it was told by this Court to the learned Advocate that he had himself filed review application, so it was necessary to be fixed before this Court and as the aforesaid order of this Court was an administrative order to its own office, so, the learned Advocate could not get any premium in the case for transfer from this Court to another learned Bench on the basis of that order. The learned Advocate was directed to argue the main case as well as the review application but he deviated from that course and stated in the following words :--
6. Learned Advocate was heard in spite of his scaring, scorning remarks, and shouting voices, trying to over awe the Court, making efforts to dictate his will, as he had already preconceived and pre-decided it for the transfer of case, at any cost. Learned Advocate some time referred to fundamental rights as enshrined in the Constitution of the Islamic Republic of Pakistan, 1973 and on the other occasion read out the Code of Conduct framed by the Supreme Judicial Council under Article 128(4) of the Constitution. In nutshell, the stress and insistence of the learned counsel was for the transfer of the case to another learned Judge. Learned counsel was asked to apply/approach to the proper higher forum for such transfer, if it was necessary for him, but the learned Advocate displayed stubborn, disgraceful, spiteful, insultive attitude and wasted about two hours in which the references to Supreme Judicial Council made were in fact threatening the Court to accede to his dictates and transfer the case or to face the consequences.
7. These actions, conduct and arguments of the learned counsel, were opposed by the learned counsel for the writ petitioner and it was explained by him that in fact Respondent No. 2 (Muhammad Ibrahim), who is a police serving employee and is posted as Reader of DSP (Legal), wanted to get replaced the statement of Mst. Tahira Kausar (writ petitioner), on the record by bringing the statement of his own choice and of his whims from the one which was recorded by the Investigating Officer outside the Court. Resisting the prayer of transfer, it was stated by him that there was no ground to accede to the request of transfer of the case. It was also stated by the learned counsel that to insist and to say for the transfer of the case from this Court to the other learned Court or Bench, was also a contempt of Court, which was being committed by the learned counsel for Respondent No. 2. It was further argued by the learned counsel that such tendency might be discouraged and should not be appreciated and encouraged. Submitting to the Court, the learned counsel stated that no relevant discussion/grounds or arguments were addressed by the learned counsel for Respondent No. 2, namely, Mr. Riaz Hanif Rahi and the derogatory, indecent and contemptuous attitude, should be discouraged and the frivolous applications, filed by Mr. Riaz Hanif Rahi, Advocate should not only be dismissed but the contempt proceeding be initiated against him as well as against Respondent No. 2.
8. Learned AAG fully supported the arguments of the learned counsel for petitioner.
9. The insistence of the learned counsel and the attitude, which was adopted by him on the previous dates of hearing in this case, led me to think that why such an insistence was being made for the transfer of the case. So, the office was directed to place all the cases, in which the learned counsel had been trying to get those cases transferred from this Court by mere filing of his power of attorney and had got the cases transferred. The office has presented the following cases:--
(i) C.R. No. 541-D-1994/BWP (Muhammad Iqbal etc. vs. Shuja-ud-Din Khan etc.)
This case was fixed in this Court on 11.1.2005, 1.3.2005 and 7.4.2005. On 15.4.2005, power of attorney was submitted on behalf of respondents Shuja-ud-Din Khan and two others by Mr. Riaz Hanif Rahi, Advocate although Ch. Masood Ahmed Bajwa, Ch. Abdul Mustafa Nadeem and Ch. Shafi Muhammad Tariq. Advocates were already representing the aforesaid respondents.
(ii) W.P. No. 193-2005/BWP (Malik Atta Muhammad vs. DIG etc.).
The case was pending and being fixed in this Court. Sardar Zafar Iqbal, Advocate was already appearing on behalf of respondents but on behalf of Respondent No. 6 (Malik Khuda Bakhsh, ASI) power of attorney was presented on 6.4.2005 by Mr. Riaz Hanif Rahi, Advocate.
(iii) Crl. Appeal No. 8-2002/BWP (Nazir Ahmed vs. The State).
This appeal was fixed in this Court on 18.11.2003 and 15.3.2004 when on behalf of Nazir Ahmed, appellant power of attorney was submitted on 13.4.2005 by Mr. Riaz Hanif Rahi, Advocate.
(iv) C.R. No. 378-2003/BWP (Mehmood Ahmed vs. Muhammad Irshad etc.)
Respondents Nos. 1 and 2 were being represented by Raja Muhammad Sohail Iftikhar, Advocate when power of attorney was submitted by Mr. Riaz Hanif Rahi, Advocate on 24.5.2005.
10. From the above noted cases, it has come to my notice that Mr. Riaz Hanif Rahi, Advocate has, in fact, invented a mechanism to get the cases transferred from this Court by mere filing of his power of attorney on behalf of a party. It also depicts that any party, if due to some reasons wants to get the case prolonged or transferred, in that event, services of Mr. Riaz Hanif Rahi, Advocate were being hired for this purpose, who was rendering it with great happiness. In other words, the legal way is not being adopted for the transfer of cases, but the under hand and illegal means are being practiced by the learned counsel prima facie, to get the cases transferred by mere filing of power of attorney in a case. It may be noted here with concern that all the above noted cases are those cases, which were pending and during the pendency of those cases, those were sought and got transferred, through the above mentioned mechanism, therefore, this practice cannot be approved with blessings because it is opening a door of malpractice, corruption and undermining the authority of the Court. Rather it has to be deprecated and discourage, the office is directed not to place the case of Mr. Riaz Hanif Rahi before any other learned Bench merely by filing of his power of attorney in any case pending before this Court in future.
11. As regards the manner and method of arguing the case, addressing the Court, threatening and over awing the Court with efforts to low down and bow down the Court before him and to yield to his request at any cost, the interruption in the working of the Court, the disrespectful, disgraceful and spiteful attitude towards the Court, so as to compel the Court to do what the learned counsel wants the result of the case, the contemptuous wording used in the Review Application No. 3 of 2005 and its filing before this Court, prima facie, prove the commission of contempt of Court. The insistence of Mr. Riaz Hanif Rahi, Advocate and his asking to The Court, to transfer the case and the filing of C.M. No. 1641-2005/BWP, referring the Code of Conduct issued by Supreme Judicial Council, all these facts tantamount to hurling threats to accede to the dictates of the learned counsel or to face the consequences before the Supreme Judicial Council. The above noted Urdu words and sentences are also displaying as to how the learned Advocate wanted to get his desired result from this Court. It may be noted that to ask a Judge of a superior Court to transfer the case to another learned Bench and not to hear the same is a gravest type of contempt of Court, particularly when no cogent reason is advanced. If the learned counsel is not satisfied with the decision of this Court, he can approach the superior Courts. But the learned Advocate has got no absolute privilege. He cannot make submissions in a manner, not approved in the traditional nature of courtesy, which is due to the Court. PLD 1996 S.C. 94 (Rashid Murtaza Qureshi vs. The State). Duty of lawyer is to uphold the prestige and honour of the Court and not to indulge in making statements, derogatory or insulting to the Presiding Officer. PLD 1961 Dacca
12. All the above decisions have guided me to serve a Show Cause Notice upon the learned Advocate, Mr. Riaz Hanif Rahi to explain his acts and conduct as noted above as to why contempt proceedings, which prima facie, were committed by him before and in the view of this Court, as noted above, should not be initiated/commenced under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Contempt of Court Ordinance No. I of 2004 and he may not be punished for that.
13. Separate file or contempt proceedings be opened, kept and maintained by the office by retaining the copy of judgment in the file.
(A.A.) Order accordingly.
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