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Official Citation: 2023 SCMR 1955
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2023
Decision Date: 2023-07-06
Parties: Sultan Ahmed vs Registrar, Balochistan High Court, Quetta and others
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2023-07-06, officially reported as 2023 SCMR 1955. In this matter between Sultan Ahmed and Registrar, Balochistan High Court, Quetta and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023 SCMR 1955
Court Name: Supreme Court of Pakistan Judge(s): Shahid Waheed, Syed Mansoor Ali Shah, Syed Hasan Azhar Rizvi Title: Sultan Ahmed vs Registrar, Balochistan High Court, Quetta and others Case No.: Criminal Appeal No.633 of 2019 Date of Judgment:2023-07-06 Reported As: 2023 SCP 283, PLJ 2023 SC (Cr.C.) 321, 2023 SCMR 1955 Result: Appeal Dismissed
JUDGMENT
JUDGMENT Syed Mansoor Ali Shah, J.- Through the present appeal, the appellant has challenged the order of the Balochistan High Court, dated 06.11.2019, passed in a suo motu contempt proceeding. The High Court has, by the said order, convicted the appellant under the Contempt of Court Ordinance 2003 and sentenced him to imprisonment till rising of the court with a fine of Rs.5000/-. 2. Briefly, the factual background of the case is that the appellant was posted as Assistant Commissioner at district Kalat, while respondent No.2, Muhammad Zahid, was serving there as Qazi (a judicial office equivalent to that of a Civil Judge), in the District Judiciary. On 16 February 2016, without the registration of an FIR, at about 03:15 p.m., the appellant raided the official residence of the Qazi, assaulted and arrested him, on the allegation of his having illicit relations with Bibi Zubaida, a police constable, whose civil suit for correction of the date of her birth was pending adjudication in the Court of the Qazi. Bibi Zubaida was also recovered from the house of the Qazi at that time. The appellant then took the Qazi barefoot to the Levies Line, Kalat instead of the Police Station concerned. The Qazi was kept confined there for about 6 hours without registration of any criminal case against him and was released on that night at 09:00 p.m. with the intervention of the Commissioner and the District & Sessions Judge. 3. This incident was reported by the District & Sessions Judge, Kalat, on 17 February, to the Registrar, Baluchistan High Court. On 18 February, the Registrar placed the report before the Hon'ble Vacation Judge, who observed that the report raised serious issues as to judicial independence in relation to the judicial service. The Hon'ble Judge formulated certain questions in this regard and directed the Registrar to place the matter before the Hon'ble Chief Justice. The Registrar put up the matter before the Hon'ble Chief Justice, who ordered to treat the report as a constitution petition and fix it
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for hearing before a Division Bench. Accordingly, the report of the District & Sessions Judge was registered as constitution petition No. 41 of 2016, and the same was fixed for hearing before a Division Bench of the High Court. On 19 February, the Division Bench constituted a Commission consisting of an Hon'ble Judge of the High Court to probe into the matter and file his report. The Commission, after making a thorough inquiry into the facts, submitted its detailed report on 2 May 2016. 4. In its report, the Commission reported that the Qazi had issued warrants of arrest of the appellant in the execution proceedings of a decree and to avenge that, the appellant in connivance with Bibi Zubaida trapped the Qazi while the lust of the Qazi provided the opportunity for this trap. The Commission also reported that to satisfy his ego, the appellant mishandled the Qazi in arresting and taking him barefoot to Levies Line and did not proceed against the Qazi, a judicial officer, in accordance with law. On this report of the Commission, the Division Bench issued notices to the appellant and the Qazi. In response thereto, the Qazi tendered his resignation while the appellant submitted his "unqualified apology". The Division Bench of the High Court considered his "unqualified apology" but thought it fit not to exonerate the appellant of the charge and instead took a lenient view and awarded a lesser punishment. Hence, this appeal by the appellant. 5. The learned counsel for the appellant contended that the High Court has no power to suo motu exercise its constitutional jurisdiction under Article 199 of the Constitution on the report of the District & Sessions Judge and placed reliance in this regard on Imran Khattak v. Sofia Khattak (2014 SCMR 122). His next main contention was that while proceeding against the appellant under the Contempt of Court Ordinance, the High Court has not provided him with a fair trial and due process to which he was entitled under Article 10A of the Constitution. Alternatively, he made the submission that in case this Court maintains the conviction and sentence of the appellant, it may pronounce that the conviction and sentence of the appellant for contempt would not affect his service. On the other hand, the learned counsel for the respondents controverted these contentions, supported the impugned order and also opposed the alternate prayer. 6. We have considered the contentions of the learned counsel for the parties and examined the record of the case. 7. As for the first contention, the High Court has not passed any order in the present matter in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan ("Constitution"). Therefore, the said contention is only academic and does not arise in the facts of the case at hand. It is not disputed that the High Court had the jurisdiction to initiate suo motu the contempt proceeding against the appellant on the report of the District & Sessions Judge. Numbering the matter as a constitution petition instead of a contempt proceeding is only an error of procedure, which does not affect the jurisdiction of the High Court. Needless to reiterate the well- settled legal position that the mentioning of a wrong or inapplicable provision of law or non- mentioning of the applicable provision of law while exercising the jurisdiction or power which is otherwise vested in a court, tribunal or authority, does not by itself have any fatal consequences.[1] 8. While elaborating his second contention, the learned counsel for the appellant submitted that if the High Court was not to accept the apology of the appellant, it should have framed a proper charge against the appellant, examined the witnesses in his presence and allowed him to cross- examine them. This submission appears to have been made in the oblivion of the import of an unqualified apology. An unqualified apology tendered by the person accused of having committed the contempt of court necessarily means that he admits his guilt and submits the apology in the realization of the fact that he has done a wrong, for which he repents and seeks forgiveness.[2] In cases where the accused tenders an unqualified apology, there remains no need of framing the charge and recording the evidence. Therefore, the conviction of the appellant by the High Court on
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the basis of his admission made through submitting an unqualified apology does not in any way offend Article 10-A of the Constitution. 9. It is, however, true that when the accused offers an unqualified apology at an early stage of the contempt proceeding as a sincere and profound remorse, the courts generally drop such proceeding and discharge the accused while warning him to be careful in the future. However, this is not an absolute rule to be followed invariably in all cases. The exceptional facts and circumstances of a case may justify departure from this general rule. The courts may, despite the submission of an unqualified apology, convict the accused in the peculiar facts and circumstances of the case and may treat his apology only as a mitigating circumstance to impose a lesser punishment.[3] 10. In the present case, the High Court has observed that the act of assaulting and manhandling the Qazi, a judge, in the general public while arresting him was a flagrant attempt to undermine and lower the authority of district courts. The majority of the people have recourse to these courts for adjudication of their disputes. It is, therefore, in the public interest to protect the honour and authority of these courts. We fully endorse these observations of the High Court and find that they justify the exercise of its discretion by the High Court in not discharging the appellant on his unqualified apology and for considering his apology only as a mitigating circumstance to impose a lesser punishment. 11. It is important to reiterate that the 'District Judiciary is the backbone of our judicial system', as observed by this Court in Hasnain Raza,[4] 'and the judges of the District Judiciary perform the onerous task of dispensing justice at the frontline by dealing with a large number of cases in a difficult and demanding environment'. As per the Judicial Statistics of Pakistan of the year 2021,[5] the percentage of the cases handled by the district judiciary is 82% of the total pendency of cases in Pakistan.[6] The district judiciary thus forms the foundational constituent of the justice system. 12. It is imperative to protect and safeguard the district judiciary from any executive onslaught or intrusion that may weaken its institutional independence or tends to lower its judicial fiat and brings it into disrespect. The need to protect judicial independence and safeguard the prestige and honour of the judges is essential to protect the public confidence and public trust reposed in the judicary. Public confidence and trust in the courts rests on independence, impartiality, neutrality, opennesss and transparency of the judicial system; it lends the court its high moral authority and its decisions, unquestionable legitimacy. The courts being guardians of the rights of the people must be insulated and walled against any intrusion that weakens its fiat and prestige. This protection applies at all levels of the judiciary, from the constitutional courts to the frontline courts in the district. The Constitution protects the constitutional court judges through the power of contempt under Article 204 of the Constitution and through the Supreme Judicial Council established under Article 209 of the Constitution, while it is Article 203 of the Constitution that safeguards the judges of the district judiciary by placing them under the protective umbrella of the High Court of the respective Province. 13. Although the Supreme Court of Pakistan as the apex court of the country is the custodian of justice as well as of the courts dispensing justice throughout the land, the primary duty to ensure the protection of district judiciary is of the High Courts under whose supervision and control it functions. This duty is inherent in and concomitant with the power to supervise and control vested in the High Courts under Article 203 of the Constitution.[7] In line with this constitutional mandate, the Legislature has conferred upon the High Courts the power to punish a contempt committed in relation to any court of the district judiciary.[8] The Balochistan High Court has, in the present case, exercised its power under the Contempt of Court Ordinance to protect the authority of the district courts and to safeguard the administration of justice by them from falling into disrespect and
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disrepute, and has performed its constitutional duty of protecting the independence of the judiciary by safeguarding the sanctity and prestige of the judges of district judiciary - our bastions of justice and an integral part of the judiciary envisaged under Article 175 of the Constitution. 14. Unlike the popular belief that the law of contempt protects the courts and judges, the real purpose of this law, as observed by this Court in Khalid Masood,[9] is the protection of the public interest and more importantly public confidence in the justice system. Even though the courts are the creation of the Constitution or the law, their real strength and power base lie in the confidence reposed in them by the public. Therefore, anything which is intended to damage the public confidence in the authority of courts is remedied by an action under the law of contempt. Since the bulk of the judicial workload in the country is primarily dealt with by the district judiciary and most of the public approach them in pursuit of justice, it is of utmost importance that the public confidence in the authority of such courts is preserved and maintained. 15. The act of assaulting and insulting while arresting a judge of the district judiciary, in this case, in open public gaze without any prior information to the District & Sessions Judge or the High Court is unprecedented. The High Court has taken a lenient view in the matter of imposing punishment on the appellant because of his tendering an unqualified apology at the very early stage of the contempt proceeding and his young age. In the facts and circumstances of the case, we find that the discretion exercised by the High Court in convicting the appellant for contempt and considering his unqualified apology only as a mitigating circumstance for imposing lesser punishment is proper and reasonable, which does not call for any interference by this Court in its appellate jurisdiction. 16. The incident involved in the present case, however, brings to light a much-neglected area that weighs heavily on the independence of the judiciary. It is axiomatic that the independence of the judiciary rests on judicial, financial and administrative autonomy. However, the administrative autonomy has been somewhat wanting over the years in the area of security of judges. The security and protection of judges is not an internal function of the judiciary but is dependent on and in control of the executive. The district judiciary protects the common people at the grassroots level against the misuse or abuse of executive power by the district administration and police. This check has an inherent potential to create tension between the district judiciary and the district administration and police. We are apprised that there have been some instances in the past when the district police officers, who were annoyed with some judicial orders of the district courts, had withdrawn the police officials performing security duties in the district judiciary or with the judges thereof. It is perhaps time for the district judiciary to have its own security personnel, somewhat parallel to the internationally recognized 'judicial marshals' or 'marshalls of the court'. The courts in some countries have their own security force.[10] The separation of the judiciary from the executive is a constitutional command[11] and must be actualized in all its facets at the earliest. In our view, the district judiciary should be independent in all respects and in particular in the matter of its security from the district administration and police, and the High Courts should take up this matter with the respective Provincial Governments and progressively proceed in establishing their own security agency, like their Process Serving Agency. However, until then the High Courts should take stern action against the district executive officers involved in illegal confrontational acts with the district judiciary under the Contempt of Court Ordinance. 17. Lastly, we deal with the alternate prayer of the appellant as to pronouncing that his conviction and sentence for contempt would not affect his service. In this regard, we observe that the High Court has not made any direction to the departmental authority of the appellant to take any disciplinary action against him. It appears that the High Court has left it to the discretion of the departmental authority of the appellant to decide in its discretion whether or not to initiate any
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disciplinary action against him. We also would not pre-empt the exercise of its discretion by the departmental authority in either way. 18. For the above reasons, we find that the present appeal is devoid of any merit. It is, therefore, dismissed.
Shahid Waheed, J. In the prelude, I want to say that analysis of facts, application of law to that, observations, and the conclusion drawn from there by my learned brother Syed Mansoor Ali Shah, J., in his proposed judgment, while dismissing this appeal, are well sorted out, so I respectfully concur with them. However, as the facts of this case paint a picture of one of the despicable modus operandi of the executive to shackle the independence of the judiciary, I wish to record my additional note to supplement the main judgment and will confine myself to appraise whether the precautions as ordered by the High Court to the executive to be observed for the prevention of such attempts in future are valid. 2. In the beginning, it is to be noted that it is the will of the people of our country to establish a system that upholds the principles of democracy, freedom, equality, tolerance, social justice and fully preserve the independence of the judiciary.[12] Based on these aspirations, our Constitution promotes the rule of law while protecting the independence of the judiciary. It is important to note that judicial independence is usually defined in terms of freedom from outside influence. Judges who face pressure, harassm ent, intimidation, undue criticism, or consequences for the merits of their decisions encounter difficulty in deciding cases impartially. As such, the outside influence is deemed a factor that impinges upon their independence. Accordingly, great efforts are required to be made to neutralise those influences and to insulate judges from any potential retaliation of their decisions, so as to give them sufficient protection.[13] Such an effort will, in turn, serve threefold purposes. Firstly, it will protect judicial independence; secondly, it will avoid continual attacks upon judges who may be sincere in their conduct; and thirdly, it will protect the system of justice from falling into disrepute.[14] 3. It is a common fact that most people ordinarily approach the District Judiciary to resolve their disputes. As such, it serves as the primary interface between the justice system and the people. It will not be an overstatement if I say that a trial court judge, for an ordinary common citizen, is the human face of the law. It is, therefore, necessary that the District Judiciary should be honest, fearless and free from any pressure and should be able to achieve the preambular goal of justice by deciding cases only according to the law without being influenced by any external pressure. 4. The above prefatory observations bring me to examine the statutory provisions of the law to ascertain their intent and the extent to which they protect the independence of judges. It is also essential to do so because, after this analysis, I will be able to determine whether further safeguards are needed to protect the independence of judges. So, I proceed. The first law on the subject was enacted in 1850 and is called the Judicial Officers' Protection Act, and its solitary provision is as follows: "No judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same." This section unequivocally affords protection to two broad categories of acts done or ordered to be done by a judicial officer in his judicial capacity. In the first category falls those acts which are
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within the limits of his jurisdiction. The second category encompasses those acts which may not be within the jurisdiction of the judicial officer, but are, nevertheless, done or ordered to be done by him, believing in good faith that he had jurisdiction to do them or order them to be done. 5. That apart, Pakistan's criminal law also provides some immunity to judges. The Pakistan Penal Code, 1860 (PPC), in its section 77, lays down that any activity done by a judge in the exercise of the power he has been granted, which he believes to have done in good faith, given to him by the law, is not liable for any offence. This particular section protects and gives the judicial officers immunity for any act done in good faith. Another section of the PPC that deals with the issue is 228, and it states that if any insult or interruption is caused by a person towards another public servant who is part of an ongoing legal proceeding, then the person causing such trouble will be liable to simple imprisonment extendable up to six months along with a fine. This section, again, provides a form of immunity to the public servants who are judges in this case. 6. We find some more protection in the Code of Criminal Procedure, 1898 (Cr.P.C). Its Section 480, provides a procedure in cases of contempt of court and grants powers to the judge to initiate relevant contempt proceedings against an offender as the judge may deem fit. This provision also grants power to a judge to take cognizance of an offence after allowing the offender an opportunity to show the cause of their acts before punishing them with a fine or imprisonment. Be it noted that section 197 Cr.P.C, too previously provided protection to judges but it was declared repugnant to the injunctions of Islam by the judgment of the Shariat Appellate Bench of this Court and as such, this provision has ceased to have effect.[15] 7. Exemption from arrest under civil process is also available. According to section 135 of the Code of Civil Procedure, 1908, no Judge, Magistrate or other Judicial Officer shall be liable to arrest under civil process while going to, presiding in, or returning from his Court. 8. The general proposition evident from the above mentioned statutory provisions is that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice. They mandate that judges in all courts, appointed to administer the law be allowed to administer it under the protection of the law freely and independently, without favour and fear. In my opinion, these provisions of the law are also for the benefit of the public, apart from the protection of judges, whose interest is that judges should be at liberty to discharge their functions with independence and without fear of consequences. If I were to summarise the intent of these statutory provisions, I would do so by adapting the words of Lord Denning.[16] Each judge should be protected from liability when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his book with trembling fingers, asking himself: "If I do this, shall I be liable to any action?" 9. The above position of law makes it pellucid that it does not attend to such an eventuality when the executive, being the largest litigant, misuses its powers to prosecute the judge and to force him to compromise his independence. This predicament, under the prevailing circumstances of our over-litigious society, has gained much importance, and the present case is an illustrative example. It will not be amiss if to explain this matter, I briefly state its facts here. The appellant before us was the Assistant Commissioner of the area at the relevant time and was involved in some litigation pending before the Qazi/Judge and bailable warrants were issued against him. He resented it, and it appears that at the end of the trial, he used some of the weak points of the Qazi/Judge's personal life to set a trap and apprehend him under the pretence that he had committed a criminal offence. However, on enquiry, this proved to be a sham and a malicious attempt to make the Qazi/Judge realise the consequences of taking a decision against the executive. It was clearly an abuse of power to discredit the Qazi/Judge. I must say that the High Court, in the given circumstances, meeting all the requirements of a fair trial, rightly convicted the appellant of contempt of Court. It is not necessary to go further into the facts and the application
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of law thereon, as it has already been elaborated in the main judgment. Lest I lose the thread, I return to the moot question. 10. The questions for me to consider is whether criminal proceedings can be instituted against a judge of the District Judiciary for acts unrelated to his judicial functions, whether an FIR can be recorded against him under section 154 Cr.P.C., and if yes, is it desirable to ask the executive to follow certain precautions while doing so? The…
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