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Criminal Miscellaneous in Criminal Transfer Application No. 16 of 1984, decided on 28th January, 1986.
‑‑‑S. 4‑‑Contempt of Court‑‑Sentence, quantum of‑‑Contemner tendering unconditional apology at an early stage‑‑Lenient view taken and contemner sentenced to three months' S.I. in circumstance.
P L D 1969 Lah. 495 ref.
‑‑‑S 4‑‑Counsel and client‑‑Duty of counsel‑.‑Contempt of Court‑ Contemner a senior advocate, realising gravity of situation tendering unconditional apology and in his reply stating to be careful in future‑ Nothing available on record to indicate that ever before contemner acted in similar man nee‑‑Unconditional apology accepted, in circumstances.
Advocates are officers of the Court. They have to assist the Court in coming to right conclusion according to law. It is not the duty of advocate to become party with his clients.
The object underlying proceedings under Contempt of Court Act is to foster the confidence of public in judiciary and allow the Judges to deal with cases independently and decide cases without fear and favour and any harassment. The punishment in such matters is an anciliary underlying such proceedings if Court comes to 2onclusion that apology is tendered by exhibition of genuine regret.
Abdul Fatteh Malik, Aly Aslam Jaferi and Sharafuddin Ada Advocates: Amicus curiae.
Date of hearing: 28th January, 1986.
The facts given rise to initiate these proceedings are that a case under section 302/34, P.P.C. is pending against accused Karam Ali and Javed in the Court of Sessions Judge, Sukkur. It was alleged that on the date of hearing viz. 21‑4‑1984, the trial Judge Mr. Abdul Aziz Memon, lost his temper and told accused Javed (now respondent in these proceedings) as to why he made allegations against him in earlier transfer application (Transfer Application No. 13 of 1984) and he used abusive language and extended threats that now he is at his mercy. Respondent Jawed filed transfer application supported by affidavit. On the other hand prosecution witnesses Haji Muhammad Warial, Ghulam Kadir and Umer Bux, sworn affidavits that allegations made against Judge are false. They stated that they were present in Court on the date of hearing and case was adjourned because co‑accused Karam Ali was not produced by Jail Authorities and Judge had never lost temper.
2. Mr. Usuf Ahmed Jafferi, Advocate, appearing for accused filed his own affidavit in which he stated that on 21‑4‑1984 he appeared in the Court as Advocate of Javed when learned Sessions Judge lost temper. He also stated in this affidavit that Judge told him that entire fault lies with him as he fabricated the things and he (Judge) will see him.
On this Mr. Abdul Majeed Abbasi, Advocate, appearing for complainant filed counter‑affidavit in which he stated that he appeared in Court on 21‑4‑1984 and on that date accused Karam Ali was not produced from Jail and case was adjourned to 12‑5‑1984 and there was absolutely no talk of any sort between the learned Sessions Judge and Mr. Usuf Ahmed and Sessions Judge neither lost temper nor issued threats to Javed and he even did not address Mr. Usuf Ahmed Jafferi, P.W. Ali Gul also filed affidavit falsifying allegation against the Presiding Judge Mr. Rafique Assistant Public Prosecutor in his affidavit stated that on 21‑4‑1984 he appeared on behalf of the State but accused Karam Ali was not produced while Jawed was present. The case did not proceed due to absence of accused Karam Ali and date was given. He went away. The learned Sessions Judge in his comments denied the allegations.
3. The transfer application No.' 16 of 1984 was dismissed by this Court on 30‑5‑1985 and it was observed that affidavits filed with transfer application were not true. Looking to the nature of false allegations made against a Judicial Officer like Sessions Judge the following orders were passed:‑---
30‑5‑1985:---
"The case under section 302/34, P.P.C. against accused Karam Ali and Jawed is pending in the Court of Sessions Judge, Sukkur.
Accused /applicants moved Transfer Application bearing No. 13 of 1984 in this Court and same was dismissed by my brothers Justice Ibadat Yar Khan by an order, dated 18‑4‑1984. The grounds taken in that transfer application were as follows:‑-
(2) That the learned Sessions Judge's son by name Shahid and P.W. Haji Khan and P.W. Ayaz Junejo and one Iqbal Accountant of the Sessions Court are friends inter se and pass their time together.
(3) That trial Judge's son Shahid accompanied with Mr. Iqbal and 2 others called upon Mr. Liaquat real brother of accused Karam Ali on motor cycle SKA 1886 and SK 1075 and impressed upon him to effect compromise and pay compensation to the complainant party on 6th of April 1984 and thus the applicants have lost confidence in the trial Judge that the applicants will get fair trial, warrants transfer of the case from that Court.
(4) That trial Judge's son Shahid had arranged to get employment for P.W. Ijaz real brother, Niaz Junejo as Clerk in the Sessions Court.
(5) That the learned Sessions Judge extended threats to accused Karam Ali and Javed when they submitted application for adjournment on behalf of their advocate by saying 'I am not your servant to wait for your advocate. Don't impress me being cousin of Sharif Gadani, I am not afraid of any body, you or your advocate, in fact people like you must be hanged without trial'.
While dismissing that application it was observed as under:‑---
"In my opinion the latter two allegations are also the reflection of the first. The bitterness created on account of rejection of the request for adjournment seems to be casting its shadows over the events that have followed. Moreover, no dates and particulars relating to the above allegations are furnished. Transfer of criminal cases from one Court to another, specially the Court of Sessions should be avoided as far as possible and should not be done as a matter or routine. Because it is not a matter of transfer of one case. News of such transfer gains easy currency and causes embarrassment to the Judicial Officer concerned and also gives a jolt to the system under which the Courts are functioning. Mere misunderstanding on the part of an accused person followed by an order of transfer of the case from the Court is likely to cause more mischief than providing any real benefit to any one." .
Once again accused moved another transfer application (Transfer Application No. 16 of 1984). The allegations made against the learned Sessins Judge, Sukkur are as under:‑--
"That the trial Judge on 21‑4‑1984 when the matter was fixed for trial the learned Judge lost his temper and asked accused Javed as to why wild allegations have been made in Transfer Application No. 13, and used abusive language and extended threats to account for now as the accused are at his mercy.
That the accused had lost faith and have reasonable doubt that learned trial Judge will not do justice.
That no‑confidence is left in trial Judge that the applicants will get fair trial.
That there are concrete apprehensions supported by above facts and the reasons mentioned in previous transfer application to create reasonable apprehension that justice will be denied to the applicants to exist in the present case."
This application was also dismissed by a short order on 13‑5‑1985 and reasons for dismissal were given by me in a separate order. The detail order be annexed this file.
The most of the allegations in both the transfer applications are of personal nature to the extent that member of family of learned Judge has been dragged and in another transfer application again vexatious allegations were made. The two affidavit filed by accused/ applicant Jawed and his counsel Mr. Yousuf Ahmed Jaffery have not been believed. Therefore, transfer application has been dismissed. On the other hand in so many counter‑affidavits filed in rebuttal it is stated that learned Sessions Judge had not threatened the accused Javed.
I requested some senior members of the Bar to assist me on that point that in case false allegations are made against the Presiding Judge what actions be taken. On this Mr. Abdul Fateh Malik, Mr. Ali Aslam Jaferi and Mr. Sharaf‑ud‑Din Ada addressed me and a case reported in P L D 1969 Lah.,495 was cited.
In both the transfer applications Mr. Yoysuf Ahmed Jafferi, Advocate has appeared and in Transfer Application No. 16 of 1984 he has filed his own affidavit by making wild allegations and maligning the Judge. It is expected from the Judicial Officers to work independently without favour or fear. Therefore, it is necessary to give them protection from unnecessary harassment and those who indulge in moving false allegations should not be allowed to go unpunished. It is, therefore, that specific provision has been made in subsection (4) of section 526, Cr.P.C. that every application be supported by affidavit and provision has also been made in subsection of section 526, Cr.P.C. for taking bond or sureties from the persons who filed transfer application. These provisions are made to check the false and vexatious allegations and take action if allegations are found false. In both the transfer application the allegations have been found to be false. I, therefore, order that notices under section 3 of Contempt of Court Act be issued to accused Jawed, Karam Ali and Mr. Yousuf Ahmed Jafferi, Advocate to show cause why action should not be taken against them for maliciously maligning the Court. They are directed to submit reply, if any, on or before 16‑6‑1985. They are directed to show cause why they should not be punished for filing false affidavits."
3. In view of the above order show‑cause notices were issued to contemner Jawed, Karam Ali and Yousuf Ahmed Jaferi, Advocate. They submitted unconditional apology.
4. Now I proceed to deal with case of each respondent separately. 4ccused Javed in his reply stated as under:‑
"I submit unconditional apology and pray for mercy. I am poor Government servant and have all the respects for Courts."
The first transfer application of respondent Javed was dismissed by this Court about a month ago and it is regretted that false personal allegations were made against the learned Sessions Judge but this Court avoided to take action against the respondent which encouraged him and he repeated transfer application by making again false allegations. The accused cannot be given a licence to humiliate the Judges in this way. The Courts under these circumstances cannot foster justice independently. These false allegations clearly come under the purview of Contempt of Court Act, 1976. In case accused of such of offences are left unpunished the Judges will not be able to act independently. The respondent Javed has not contested the proceeding, therefore, no charge was framed. Now it is to be seen what adequate sentence is warranted in this case. In this case at an early stage Javed contemner tendered unconditional apology. I, therefore, take lenient view. He is convicted under section 4 of Contempt of Court Act, 1976 and sentenced to suffer S.I. for 3 months. He is present and remanded to custody to serve out the sentence.
5. Now I come to case of respondent Yousuf Ahmed Jafferi, Advocate. He in his reply submitted as under:‑---
"With reference to the notice, dated 30‑5‑1985 I avail this first opportunity to throw myself unconditionally before this Honourable Court and submit apology. I may very kindly be permitted to add that I have had profound respect for the Judges and the Courts and had never thought to commit any contempt. I did submit my affidavit after 5 months that to under orders of this Hon'ble Court and had no idea to disrespect any officer of the Court anyhow I will be careful in future.
It is, therefore, prayed that notices may very kindly be vacated.
Advocates are officers of the Court. They have to assist the Court in coming to right conclusion according to law. It is not the duty of Advocate to become party with his clients. Respondent is Senior Advocate. He realising the gravity of this situation tendered unconditional apology and in his reply stated that he will be careful in future. The object underlying proceedings under Contempt of Court Act is to foster the confidence of public in judiciary and allow the Judges to deal with cases independently and decide cases without fear and favour and any harassment. The punishment in such matters is an ancillary underlying such proceedings if Court comes to conclusion that apology is tendered by exhibition of genuine regret.
The respondent is practising lawyer is in profession since last so many years and there is nothing before me to indicate that he had on any previous occasion acted in similar manner. He had been appearing in Court. I found that he has realised. I, therefore, accept his unconditional apology and hope that in future he would not behave in this manner.
6. Respondent Karam Ali was in jail. He has absconded from police custody and such case has been registered. He has not been arrested. However he submitted unconditional apology when he appeared before this Court. On 21‑4‑1984 he was not present in the Court of learned Sessions Judge, Sukkur. He did not file any affidavit nor made any allegations against the Judge, therefore, the notice issued to him is vacated.
S.G.D./5181/k
Order accordingly.
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