Find a Lawyer

Criminal Appeal No. K‑16 of 1970, decided on 11th August, 1979.

(On appeal from the judgment and order of the High Court of Sind & Baluchistan, Karachi, dated 3‑6‑1970 in Suit No. 151 of 1970).

‑‑ Art. 204‑Contempt of Court‑Attempts to influence a witness to discard his duty as a witness or to warp mind of a possible witness clear contempt of Court‑Contemner during pendency of civil suit filed by him in High Court asking complainant to withhold from inform ation about a certain meeting and promising him in return to be treated more favourably in criminal case filed against him (complainant) Complainant making two statements before Court, earlier statement being in form of laying information before Court, not intended to supply details and subsequent statement given as a witness‑Subsequent statement being quite detailed providing particulars, no discrepancy nor any improvement between two statements to be inferred Complainant's statement corroborated by circumstantial evidence and failure of contemner to appear in witness‑box or file any affidavit in disproof of allegations‑Account of meeting sought by contemner to be withheld having great relevancy to civil suit, contemner's motive to see complainant's evidence not damaging him spelt out Complainant's testimony having gone unrebutted and proved by circumstances, offence of contempt, held, made out‑High Court having made no mistake in believing complainant's statement, its view regarding credibility of complainant being not erroneous or based on no' evidence, no violation of any principle of law in matter of appreciation of evidence, nor any omission or misreading of record warranting interference by Supreme Court being pointed out, appeal dismissed.‑[Contempt of Court].

Nizam Din v. Muhammad Bux P L D 1958 Lah. 1042 ; Abdul Karim etc. v. Boota and another P L D 1956 Lah. 19 ; In re : Subrahmanyan, Editor Tribune' and others A I R 1943 Lab. 329; Ashfaque Ahmad Sheikh v. State P L D 1972 S C 39 ; In re : Hooley : Rucker's case (1898) 79 L T 306 ; Welby v. Still (1892) 66 L T 523 and In re : B. (J. A.) (an infant) (1965) 2 All E R 168 ref.

Iqbal Kazi, Senior Advocate Supreme Court and K. A. Ghani, Advocate -on‑Record for Appellant.

Usman‑i‑Ghani, Advocate‑General (Sind) and Noori Ahmad Noori, Advocate‑on‑Record for Respondent.

Date of hearing : 11th August, 1979.

‑The appellant was convicted for contempt of Court by a judgment and order of a learned Single Judge of the High Court of Sind & Baluchistan, Karachi, dated 3‑6‑1970, and sentenced to pay a fine of Rs. 500. The appellant has come up in appeal to this court under Article 58(2) (c) of the Constitution of 1962 read with the Provisional Constitution Order, 1969.

2. The facts of the prosecution case are few and simple. A civil suit bearing No. 151 of 1970, titled N. S. Hoon v. Messrs B. R. Herman & Mohatta Limited and another, was pending before a learned Single Judge on the original side of the High Court. In that suit the plaintiff/ appellant had claimed a declaration of his title with regard to 500 shares in the defendant‑Company and also for an injunction restraining their further alienation. The case was fixed for appearance and recording the statement of Mr. Livingstone (hereinafter called the complainant) on 21‑5‑1970, regarding certain meeting of the defendant‑Company allegedly notified to be held in London. The aforesaid complainant appeared and while he was making a statement he volunteered that :‑

"When I had signed the Minutes of the London meeting one Mr. N. S. Hoon, the plaintiff was present. I know him personally. I can identify him, but he is not in the Court room at this moment. He is or has been in the Court building and he spoke to me earlier in the corridor of this Court. A criminal case has been filed against me and he told me that if I withheld certain information I would be treated more favourably. He wanted me to withhold from this Court information about the meeting in London."

Feeling that this amounted to an interference in the Court proceedings and contempt of Court the learned Single Judge took its cognizance suo motu and issued a formal notice to Mr. N. S. Hoon plaintiff/appellant (hereinafter called the contemner) on that count. During the proceedings which then ensued, the statement of Mr. Livingstone was recorded as a witness who was cross‑examined by the counsel for the contemner /appellant at length. The appellant/contemner did not appear in the witness‑box but contended himself by filing an affidavit denying any meeting or talk with Mr. Livingstone. The appellant led no evidence in rebuttal. The case thus turned solely upon the appreciation of evidence or to put it in 'other words the statement of the complainant, and after attending to the various points raised by the appellant, the learned Single Judge was satisfied that he could safely rely upon the said statement and finding the same as sufficient for establishing the guilt of the contemner he convicted and sentenced the appellant as above mentioned. Hence this appeal.

3. The learned counsel has argued that the statement of the complainant should not have been relied upon because‑

(i) his first statement volunteered by him on 21‑5‑1970, when he initially brought the matter to the notice of the Court, was materially different from the statement which he made later on 26‑5‑1970 in formal contempt proceedings as a regular witness. In the subsequent statement he had made mention also of some earlier meeting of the appellant with him wherein the appellant had similarly allegedly tried to impress upon him not to disclose certain facts about the issuance of notices of London meeting which was the subject‑matter of the civil suit ;

(ii) that the conviction of the appellant on the solitary statement of the complainant was not justified especially when he, i.e. the complainant himself was involved in a criminal case in retaliation whereof he had trumped up the present case against the appellant ;

(iii) that there was no corroboration of the statement of the complainant and the conviction of the appellant without any corroborating material on the record was not justified ; and‑

(iv) that the statement of the complainant even otherwise was not truthful.

4. We have attended to these matters in detail and gone through the record. As regards the alleged variation between the two statements of the complainant dated 21‑5‑1970 and 26‑5‑1970, it may be stated that the earlier statement was only in the form of laying information before the Court and was not intended to supply d a ails of the same, and in these circumstances if the subsequent statement was quite detailed and provided particulars in that respect, the same could not be rejected solely on that account. Even otherwise if the learned counsel considered the later statement as an improvement and from that point of view a contradiction, then it may be mentioned that the so‑called improvement and contradiction stands fully explained as discussed by the learned Single Judge. In the circumstances the plea raised has no force especially when the petitioner had ample opportunity to rebut the same by leading proper defence evidence on the subject which as held by the High Court he did not do. As regards objections (ii) and (iii) it may be mentioned that the corroboration of the statement of the complainant existed in the form that it was admitted by the appellant that on 21‑5‑1970, he was present in Court premises though he denied to have had any talk with the complainant. The complainant had deposed that he had made mention of the above‑mentioned C talk to his counsel Mr. Fakhruddin, Advocate. The learned Judge suggested. to the appellant that he could call Mr. Fakhruddin as a Court witness' but the appellant did not agree to avail of any such facility, and nor did he otherwise call him in defence. Not only that but the appellant did not also choose to file any counter affidavit after the deposition of Mr. Livingstone and thus avoided to face any questions which could have been put to him. It is well settled as laid down in Nizam Din v. Muhammad Bux (P L D 1958 Lah. 1042) (B. Z. Kaikaus, J.), Abdul Karim, etc. v. Boots and another (P L D 1956 Lah. 19), (B. Z. Kaikaus, J.), and In re : Subramanyan, Editor, Tribune' and other., (A I R 1943 Lah. 329) (as per Munir, J.), that while it is true that proceedings for contempt are in the nature of criminal proceedings it is not correct that the position of an alleged contemner is that of an accused (if we may add) for all purposes who cannot file an affidavit or make a statement on oath. In Ashfaque Ahmad The State Sheikh was laid down that "if he volunteered to make a statement he can be put questions by Court". In the instant case the appellant filed an affidavit in response to a notice issued to him but after the close of the prosecution evidence namely the deposition of Mr. Livingstone he led no rebuttal and in this way various aspects of the testimony of Mr. Livingstone remained unrebutted. There was thus a sort of circumstantial corroboration and in these circumstances the objections raised have no merit. It was suggested to us that as the appellant could influence the criminal proceedings which were pending against the complainant he put up this case against him. In the Court below. however, the plea advanced (in arguments) was that the appellant could not influence the aforesaid criminal case and therefore there was no occasion on his part to have administered any threats or made any inducements to the complainant. The preliminary and the only affidavit of the appellant was completely silent on this aspect of the matter. The learned counsel even in this Curt could nit point to anything from the record in was respect. Rather a perusal of the civil suit (copy of plaint is on pages 40 to 48 of the paper‑book) shows that the validity of the title of the appellant to 50 shares in the company had a great relevancy to any connection with the meeting or notices issued for the meeting in London, which indicates that the appellant had a motive to see that the evidence of Mr. Livingston on the subject did not damage him and his case. The learned Judge of the High Court in the circumstances rightly refused to accept the pale of motive on the part of the appellant. As regards the fourth objection if in view of the overall facts and the circumstances of the case, the learned Judge believed the statement of Mr. Livingstone after attending to all the aspects and the arguments advanced he made no mistake and his vie regarding credibility of the witness cannot be said, to be erroneous in an ' manner or as based on no evidence. We have gone through his deposition together with the analytical assessment made by the High Court and all we need observe is that the High Court used extra care and made a thorough scrutiny before giving its verdict on the subject.

5. The result is that the learned counsel has not been able to porn out violation of any principle of law in the matter of appreciation of evidence in cases of this type, nor any omission or misreading of record warranting interference by this Court. No doubt the present is an appeal which was available to the appellant as of right but we must say that he has not been able to advance any argument in the matter of appreciation of evidence which may have pursuaded us to differ from the High Court in that respect. It was not disputed that if the deposition of Mr. Livingstone was believed then the offence of contempt would be there. As laid down in In re : Hooley: Rucker's case ((1898) 79 L T 306), Welby v. Still ((1892)66 L T 523) and In re : B. (J. A.) (an infant) ((1965) 2 All E R 168) attempts to influence a witness to discard his duty as a witness or to, warp the mind of possible witness is a clear contempt. The sentence of, fine in the circumstances is also quite apt, especially when the appellant did not offer any apology at any stage of the case and not even uptil now.

6. The appeal has no merit and is dismissed.

Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.