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Criminal Miscellaneous No. 158 of 1963, decided on 25th June 1963.
, S. 3, first proviso--- Principles governing acceptance of apology‑Summons issued to Advocate to appear to give evidence in case before High Court ---Advocate f fling to appear owing to pre‑occupation with a Sessions case‑Contempt of Court‑Apology tendered at earliest stage accepted‑Contemner, however, burdened with costs of State counsel.
The State v. S. W. Lakitullah P L D 1959 Dacca 84 ; In re Muhammad Wasim, an Advocate A I R 1933 Oudh 118 and The Crown v. A. Rafique and others A I R 1950 Sind 1 ref.
S. G. Ali Bokhari, Assistant A.‑G. for Petitioner.
Khan Abdul Latif Khan for Respondent.
Date of hearing : 4th June 1963.
This Rule was issued suo motu by this Court against Mr. Munawar Khan (hereinafter to be referred to as the respondent), an Advocate of this Court, and an M.P.A., practising at District Headquarters, Bannu, to show cause why he should not be dealt with for contempt of this Court. The notice issued to the respondent was in the following terms :‑
"Whereas you were summoned as witness for Mr. Attaullah Khan, Pleader, Bannu, in Contempt of Court Case "State v. Mr. Attaullah Khan", to appear in this Court on the 22nd of May 1963, and give evidence on behalf of said Mr. Attaullah Khan and whereas the summonses were personally served on you, but you instead reported that you were unable to attend this Court on the said date as you were engaged in a cross Sessions Case, the trial of which was to be held by the Sessions Judge at Bannu ; and so you asked to adjourn the aforesaid Contempt of Court Case for your evidence to some other date and failed to attend this Court on the date fixed ; and whereas your this conduct appears, prima facie, to be amounting to a disobedience of the order of this Court and as such the contempt of this Court. Notice is, therefore, hereby given to you to appear personally in this Court on 31‑5‑1963 at 7‑30 a.m. at Peshawar, and show cause why you should not be proceeded against and punished for the offence of the contempt of the High Court, Peshawar Bench, Peshawar.
Given under my hand and seal of this Court dated this 23rd May 1963.
(Sd.) Shah Nawaz,
Additional Registrar."
The respondent was personally present in the Court at the time of hearing of the Rule as directed by this Court and he had also been represented before us by Khan Abdul Latif Khan, Advocate, who, on behalf of the respondent, filed a written unconditional and unqualified declaration of apology to which was added a prayer that the respondent "may be pardoned for the mistake unintentionally committed by him". The respondent was also examined by us in Court and he frankly admitted having "committed a mistake in not attending the Court in pursuance of the summons issued‑for attend ance in this Court." The respondent ended his statement by reiterating "unqualified apology" and declined to produce any defence.
2. Khan Abdul Latif Khan, the learned counsel for the respondent, with admirable but usual fairness conceded that the respondent had been guilty of contempt of Court in not having entered appearance in this Court in response to the summons issued to him, on the ground that he had cross cases in the Sessions Court, but argued that the respondent had not intention whatsoever of disobeying the order of the Court and the respon dent under the honest but mistaken belief that he might be guilty of professional misconduct if he did not conduct the defence of his client in the cross Sessions cases fixed before the Sessions Judge, unintentionally fell foul of the contempt of Court by not complying with the order of this Court, hoping that his request for adjournment of the case would be granted. He further argued that the respondent had realized his mistake and was genuinely sorry for his conduct and had offered unconditional and unqualified apology, and in the circumstances of the case it was a fit case to accept the apology and discharge the respondent, as provided in the first proviso to section 3 of the Contempt of Courts Act.
3. It will be convenient to reproduce the first proviso which is in the following terms :‑
3 ..
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court."
4. The question which calls for decision in the present case is whether in the circumstances of the case some punishment should be meted out to the respondent or he should be discharged in view of frank admission of his guilt and his having tendered unqualified and unconditional apology and having thrown himself entirely on the mercy of the Court.
5. It is no doubt highly regrettable that an Advocate and M. P. A. of the standing of the respondent, who knows the law and who ought to know to respect the law, should have been guilty of the offence of contempt of Court. It is well established principle of Law of Contempt that an apology, if tendered, may not be necessarily accepted and the contemner purged of his contempt. An analysis of cases decided by High Courts an d Supreme Court on the subject would show that, in dealing, with contempt cases, an apology may be accepted, provide dl
certain fundamentals and preliminaries are fulfilled. These fundamentals briefly are
(a) the apology must be offered at the earliest stages of a contempt proceeding and not postponed till the end of the proceedings;
(b) the apology must be unconditional, unreserved, and unqualified;
(c) the apology should be sincere and the outpouring of a penitent heart, and not half‑hearted or for its mere sake or' as a formality;
(d) if an apology is to be effective, attempts at justification of an act of contumely or contempt should be scrupulously avoided;
(e) If the charges are grave and amount to flagrant defiance of Court authority or dignity, punishment will follow, though the apology, if tendered, in time, may soften or modify the rigour of punishment.
We have given the question of the apology our very earnest consideration, and judged in the light of the principle indicated above, we think that all the requirements for a valid and effective apology are fulfilled in the instant case, and that the apology has a ring of sincerity, in that it is a sufficient humiliation for a leading Advocate and M. P. A. to admit publicly that he had been wrong and that he had done wrong and, therefore, when an apology comes from such a person, it must be a genuine apology. So far we have been discussing the question of acceptance of the apology untrammelled by authorities. There is considerable case‑law on the point in which Advocates having been found guilty of very serious and gross contempt of Court were discharged on offering unqualified apology. We would content ourselves by making reference to the following three autho rities :‑
(1) The State v. S. W. Lakitullah P L D 1959 Dacca 84.
(2) In re Muhammad Wasim, an Advocate A I R 1933 Oudh 118.
(3) The Full Bench decision in The Crown v. A. Rafique and others A I R 1950 Sind 1.
1n the first noted case Maulvi S. W. Lakitullah, Assistant Public Prosecutor, was called upon to show cause why proceedings should not be taken against him and committed to prison or otherwise dealt with according to law for contempt of the Dacca High Court in having used the following language with regard to the system of Chamber Examinations obtaining in the Dacca High Court in the letter addressed to the Judicial Secretary to the Government :‑‑
"That the system, as I understand it, is open to discrimi nation and is otherwise not conducive to the healthy growth of legal genius."
The contemner filed an affidavit in which he expressed his sorrow, tendered his sincere and unreserved apology to the Court, and begged for mercy. Rahman, J. delivering the judgment for the Court, with which Khan, J. agreed, accepted the apology with the following observations :‑
"In the present case, however, we do not wish to be unduly sensitive and punish the contemner further. He was present in Court throughout yesterday until 4 p.m., and is also present in Court today. He has also bad to incur expenditure in briefing learned Advocates to represent him. We, therefore, think that he has been sufficiently punished and that no further punishment need be imposed upon him."
In the Oudh case, Muhammad Wasim, a leading Advocate of repute of the Oudh High Court, was called upon to show cause for contempt of Court that he had used in a speech
delivered at the meeting of the Oudh Bar Association held on 19th October 1932, the following words :‑
"The man in the street has lost confidence in the adminis tration of justice in the Province of Oudh."
The contemner filed a written declaration, though in the beginning he denied having used the expression attributed to him. It is interesting to note that in spite of the gross contempt of Court the Government Advocate joined the learned counsel for the contemner in the prayer for acceptance of the apology, and Smith, J. delivering the judgment for the Bench, discharged the contemner, with the following observations :‑
"Having regard to the position which Mr. Muhammad Wasim occupies at the Bar of this Court, we feel relieved to think that we are not now called upon to inflict any punishment for the offence which he has, albeit, we fully believe, uncon sciously, committed."
In the Sind case, Sayed Ahmad Rafique, the President, and Sayed Raza Mirza, the Secretary, of the Bar Association, were issued notices of contempt of Court, in that at the meeting of the Bar Association, held on 15th June 1949, Sayed Ahmad Rafique had moved the following resolution
"The Karachi Bar Association has learned with great regret and concern of the undeserved insults given by the Hon'ble Chief Judge to the President of Karachi Bar Association, Mr. Sayed Ahmad Rafique, Barrister‑at‑law, and to an out standing member of this Association Mr. M. A. Alvi, Advocate, and places on record that in its opinion the attitude of the Hon'ble Chief Judge has been persistently contemptuous towards the members of the Bar in general and the displaced lawyers in particular, making it impossible for them to keep up the well‑known traditions of the Bar, of placing their clients' causes before a Bench, adequately and fearlessly.
This Association further affirms that the learned profession of law is the mainstay of the liberty and rights of the citizens and the Courts in Pakistan will be undermining the foundation of the State by a disregard of the rights of the lawyers and this Association warns the learned Chief Judge that if there is a further repetition of this behaviour, the Association will be forced to take measures which it sincerely wishes to avoid."
It will be manifest from reading of the above resolution that the grossest possible contempt of Court was committed by the contemners, but in spite of it the Full Bench, consisting of Tyabji, C. J. and Constantine, Agha, Vellani and Muhammad Bachal, JJ. discharged the contemners by accepting their unqualified apology.
6. For all the foregoing reasons, we accept the unqualified apology as sufficient amends, and direct, in accordance with the first proviso to section 8 of the Contempt of Courts Act, 1926, 5 that the respondent be discharged. He is, however, directed to pay the costs of the Assistant Advocate‑General, which is fixed Rs. 200 (two hundred).
7. Before we part with the case, we express the hope that the proceedings in this case will have a salutary effect on the respondent in particular, and other legal practitioners in general, who as officers of the Court are a privileged class and enrolled for the purpose of rendering assistance to the Courts, and as such under legal obligation to help facilitate speedy dispensation of justice, rather than, contrary to their professional duty, they should impede the speedy dispensation of justice by disobeying the processes of the Court and thereby fall foul of contempt of Court.
K. B. A./A. H.
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