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Petitioner: ROBKAR ADALAT VS Respondent: SARFRAZ ALAM
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s):Syed Manzoor Hussain Gillani, Muhammad Siddique Farooqi, Chaudhary
Muhammad Taj Title: ROBKAR ADALAT vs SARFRAZ ALAM Case No.: Criminal Miscellaneous Application No.6, Date of Judgment:1996-05-09 Reported As: 1996 MLD 1752 Result: Order Accordingly Judgment ORDER SYED MANZOOR HUSSAIN GILANI, J.---These contempt proceedings have arisen under the following circumstances: In two counter-appeals, captioned "Muhammad Maarulf v. Ratasab Hussain and others" arid "Muhammad Sadique v. Ratasab Hussain and others", during the course of arguments, the learned counsel for the parties agreed with the suggestion of the Court that the dispute between the parties can be resolved by the actual measurement of the plots in dispute. The learned counsel for the parties agreed that the Town Planner and Overseer of the Mirpur Development Authority (M.D.A.) be directed to inspect the spot and furnish the report according to the measurement of the plot. Consequently on September 21; 1994, the Court ordered the Town Planner and Overseer of the M.D.A. To appear in the Court for seeking the directions of the Court in this behalf. The Overseer and Assistant Town Planner M.D.A. Appeared in the Court on September 22, 1994, who were directed that after spot inspection a measurement report shall be submitted with respect to the plots in dispute in the above-captioned appeals. They were directed to submit the report along with the site plan showing the encroachment if any in Plot No.428. The officials were directed to submit their report on November 10, 1994. On 21-12-1994 when the file was placed before my learned brother Mr. Justice Khawaja Muhammad Saeed (the learned Chief Justice now), the learned Judge passed the following order: "On September 21, 1994, during the course of arguments before my learned brother Mr. Justice Syed Manzoor Hussain Gilani, the learned counsel for the parties the matter in dispute be resolved through measurement. A notice was issued to Town Planner and Overseer of Mirpur Development
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Authority to appear before the Court on September 22, 1994. On this date, the following order was passed: 'The Overseer and Assistant Town Planner who were summoned yesterday are present in the Court. They are directed that after spot inspection and measurement, they shall submit a. Report with respect to the actual measurement of the Plots Nos.425, 427 and 428 and they shall also state by preparing a site plan as to whether Plot No.428 is any way encroached by the allottees of the Plots Nos.426 and 427 and if so, which side of the plot is encroached. The learned Advocates, who are present in the Court stated that the site plan of the area is already on the file of the Court as Exh. PF. The representatives of the Department state that the Master Plan of the area is with the Development Authority. Besides the actual spot inspection and measurement, the measurement shall be conducted on the basis of site plan Exh. PF and Master Plan. The authorities are directed to intimate the parties and their. Advocates well before the spot inspection. The Reader of the Court shall accompany the Commission alongwith the file of the Court. The report shall be furnished on November 10, 1994. In spite of the above-referred directions of the Court, the Overseer and Assistant Town Planner who were present before the Court failed to submit the report about the measurement of the plots, till today, even though they were directed to furnish the same on November 10, 1994. In my opinion, the above-referred facts constitute sufficient grounds for believing that the abovementioned two employees of Mirpur Development Authority have committed contempt of Court as visualized by section 45 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and section 3 of the Contempt of Court Act, 1993. Therefore, it appears necessary to proceed against them in the interest of effective administration of justice. Moreover, certain provisions contained in Contempt of Court Act, 1993, prima facie, are violative of the provisions contained in section 45 of the Interim Constitution Act, 1974. Therefore, besides learned counsel for the parties, a notice be issued to the learned Advocate-General to appear before the Court and assist in the matter. The file shall, therefore, be placed before the learned thief Justice today, in view of section 7 of the Contempt of Court Act, 1993 for the constitution of a larger Bench. " 3. A Full Bench was constituted by the learned Retired Chief Justice on 21-12-1994 in view of above- referred order. The learned Retired Chief Justice was again pleased to order on 15-5-1995 as: "During the proceedings in this appeal contempt proceedings were initiated against Sarfraz Ahmed, Assistant -Town Planner, M.D.A., Mirpur and the Full Bench was constituted to hear the contempt case. Through inadvertence in the interim order in this appeal has also been recorded that it is to be heard by the Full Bench. This appeal is to be heard by the Bench consisting of my learned brother Mr. Justice Khawaja Muhammad Saeed. There appears no just and valid reason for constituting the larger Bench. This appeal shall, therefore, now be heard and decided by my learned brother Mr. Justice Khawaja Muhammad Saeed. The file relating to contempt proceedings be separately prepared. To come up for arguments before the learned Judge on 3-7-1995." These contempt proceedings were, therefore, separately taken up against the contemner Sarfraz Alain, Assistant Town Planner only by the Full Bench. But the same could not assemble for one reason or the other till the retirement of the learned Chief Justice. On 11-4-1996 when this case was already fixed for hearing, the Full Bench was reconstituted consisting of the Judges available at Circuit Bench Mirpur. The Court in view of the proposition evolved by the learned Judge, now the learned Chief Justice, thought it proper to seek the assistance of senior Advocates on the point. Consequently Messers Abdul Majid Mallick. Raja Muhammad Siddique Khan, Chaudhry M. Sharif Tariq, Chaudhry Muhammad Azam Khan and Masud Khalid, Advocate were requested to assist the Court. Arguments in the case were heard on April 13, 1996. 4. During the proceedings, pending before hearing the arguments, Mr. Sarfraz Alam, Assistant Town Planner filed an application on 18-1-1995 in the Court requesting for adjournment. On 12-3-1996, the
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Assistant Town Planner submitted an affidavit in the Court that the sister of his immediate officer had died on 9th of February, on account of which he could not appear in the Court on 10-2-1996, neither could he comply with the order of the Court on account of the said death and tendered unconditional apology. He again submitted unconditional apology for his default on 20-3-1996. 5. Mr. Liaquat Ali Khan, Advocate representing the contemner at the very outset of the arguments submitted unconditional apology and stated that though the fault committed by his client is not wilful, but he repents for the default and places himself at the mercy of the Court. No further argument in this behalf was tendered by the learned Advocate. 6. We have heard the learned Advocates Messers Abdul Majid Mallick, Chaudhry M. Sharif Tariq, Chaudhry Muhammad Azam Khan, Advocate--General as well as Additional Advocate-General on the point evolved by the order of the Court dated 21-12-1994 with respect to the constitutionality of the Contempt of Court Act, 1993 (hereinafter to be referred as Contempt Act). 7. Mr. Abdul Majid Mallick the learned Advocate appearing-as amicus curiae submitted that section 45 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Constitution) is comprehensive enough including in it all that can constitute or be termed as the Contempt of Court. According to the learned Advocate, the question of contempt is between the Court and the contemner and no third party can substitute its ifs and buts as to what constitutes the contempt or what does not amount to contempt, either by law or by rules, except prescribing the procedure for regulating the power vested under section 45 of the Constitution. The learned Advocate referring to following underlined lines of subsection (1) of section 7 of the Contempt Act: Procedure for Supreme Court and High Court.--(1) Whenever it appears to the Supreme Court or the High Court that there is sufficient ground for believing that a person has committed contempt of Court and that it is necessary in the interest of effective administration of justice to proceed against him, it shall make an order in writing to that effect setting forth the substance; of the charge against the accused, and, unless the Chief Justice is already on the Bench, the Judge or Judges take congnizance of the matter, shall forward the case to the Chief Justice for constitution of Bench. The Bench shall comprise of not less than two Judges, unless the Chief Justice for the reason to be recorded, otherwise directs." contended that the entire complexion of section 45 of the Constitution and the Contempt Act, in view of the above-referred lines is changed and the power vested in the Court under section 45 of the Constitution are taken away by the Contempt Act, which is a gross violation of the Constitution. The learned Advocate further contended that the Legislature is empowered under subsection (3) of section 45 of the Constitution to regulate the powers vested in the Court under subsections (1) and (2) of section 45 of the Constitution, not to take away the power vested by it. According to the learned Advocate, the above-referred lines of subsection (1) of section 7 and all the clauses of section 3, section 6 and section 8 of the Contempt Act are violative of the power vested in the Supreme Court and High Court by section 45, as Courts of record. The learned Advocate further submitted that the Contempt Act is a regulatory law in nature not the substantive law, hence the provisions of the Act which run counter to the substantive law are without lawful authority and are against the Constitution. The learned Advocate further submitted that the provisions of section 45 of the Constitution override all other provisions of the Constitution in view of the opening words of subsection (2) of section 45 i.e.: "A Court shall have power to punish any person...", thus the exceptions provided under Contempt Act are violative of the entire scheme of the Constitution. The learned Advocate further submitted that the purpose of giving overriding powers is to maintain the authority of law and save the public confidence in the judiciary from being impaired or jeopardized.
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8. Chaudhry M. Sharif Tariq, Advocate submitted that the Contempt Act is menat to provide check and balance on the powers of the Court in initiating the contempt proceedings. According to the learned Advocate, the Legislature is competent under subsection (3) of section 45 of the Constitution to regulate the law relating to the contempt which includes in itself providing exceptions to what constitutes contempt. He further submitted that the contempt Act provides the procedure for initiating, conducting/proceedings of contempt. However, the provisions of the Act which go beyond the regulation i.e. Which take away the power of contempt or subject them to unwarranted procedure, are against the Constitution, such as last lines of section 7(l) and exceptions to section 3, section 6 and section 8. The learned Advocate, more or less agreed with Mr. Abdul Majid Mallick. Chaudhry Muhammad Azam Khan, -Advocate arguing the case submitted that the power of the Legislature to regulate the law of contempt is not the general power of the Legislature, but a specific and restricted power given under subsection (3) of section 45 of the Constitution. According to him, under this subsection law is .To regulate the power vested in the Court under subsections (1) and (2) of section 45 and subsection (3) of section 45 only empowers the Legislature to provide the procedure for exercise of the powers vested by section 45 of the Constitution, not to put .a check on the powers of the Court or take away the powers to initiate the contempt proceedings and to declare what amounts to contempt or what does .Not amount to it, when Constitution itself is self--, speaking. 9. The learned Advocate-General assisting the Court contended that the power is vested, in the Court under section 45 of the Constitution, that power is intact and is not taken away, neither can that be taken away by law or rules. The Court can proceed under the substantive power provided by section 45 of the Constitution irrespective of Contempt Act, however, the procedure of fair trial and sentence is provided by the Contempt Act and it is for regulating the power which has. To be adhered to. He referred 1995 SCR 176 in which the contemners were convicted under section 45 of the Constitution read with section 4 of the Contempt Act. 10. In the case in hand, two propositions are involved which require the determination of the Court: The first is with respect to the conduct of the respondent as to whether it amounts to contempt of Court or not and second as formulated by the learned Chief Justice when his lordship was a Judge, as to which provision or provisions of the Contempt Act are derogatory to section 45 of the Constitution. We shall first discuss the constitutionality of the Contempt Act. 11. Before examining the controversial provisions of Contempt Act, the powers of the contempt vested under section 45 of the Constitution in the superior Courts (hereinafter to be referred as Courts) may be set forth. Section 45 of the Constitution is as follows: "45. Contempt of Court.--(1) In this section 'Court' means the (Supreme Court of Azad Jammu and Kashmir) or the High Court. (2) A Court shall have power to punish any person who: (a) Abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court. (b) Scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; (c) Does anything which tends to prejudice the determination of a matter pending before the Court; or (d) Does any other thing which, by law,, constitutes contempt of the Court. (3) The exercise of the power conferred on a Court by this section may be regulated by law and subject to law by rules made by the Court." The above-referred section is similar to section 204 of Constitution of Pakistan, 1973. 12. A perusal of the section reveals that the powers vested in the Courts are
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not subjected to the other provisions of the Constitution nor to any law, the powers thus are overriding and the superior Courts are all powerful' to punish any person found guilty of any omission or commission visualized by subsections (1) and (2) of section 45. The only exception which can be accepted in this behalf is with respect to the persons immuned from the legal process under section 52 of the Constitution and that too, shall be available till such persons are holding that Constitutional office. There remains no bar under the Constitution to proceed against them after they cease to hold the office by virtue of which that privilege or immunity is granted. The Supreme Court of Azad Jammu and Kashmir in the case "Chief Secretary/Referring Authority 'of Azad Jammu and Kashmir v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K 95) has held as follows: "On the basis of the above discussions we are of the view that immunity, and that too in temporary nature, is allowable to the representative office holders only during the period they are in saddle. During this period the action for their illegal acts and omissions remains in suspended animation and no sooner they cease to hold the office the acts and omissions are available for an action." 13. The power vested under the Constitution is, however, to be regulated by the law and the rules of the Court. The law definitely denotes to the law made by he Legislature by an Act of the Assembly. However, any such law is simply to regulate the powers vested in the Superior Courts by this section not to abridge or put any embargo or make any exception to the exercise of the power. The limit and extent of a person's omission or commission to be construed as contempt is the power of the Court to determine, not of the Legislature to prescribe. Law can only regulate the exercise of the powers already vested that means it can prescribe the procedure and sentence. The power of the Legislature to make the law stems from subsection.(3) of 8 section 45, not from any other provision of the Constitution authorizing the Legislature to make law to regulate the process. The general power of the Council or Assembly under Schedule Third or section 31 of the Constitution respectively are subject to this section. Any deviation, overriding, intermingling or substituting its own interpretation over the powers conferred by this section would amount to violating the provisions of the Constitution. 14. The word 'regulate' is not defined in the Constitution, hence its dictionary meanings have to be looked into the word 'regulate' is defined in the 76 Corpus Juris Secundum at page 610 as: Regulate". The word 'regulate' is derived from the Latin words 'rego' and 'regula'. It is a word of broad import, having a broad meaning, and is very comprehensive in scope. The word is difficult to define in other terms because it involves a conception for which it stands more accurately than any synonym and there is diversity of opinion as to its meaning and its application to a particular state of acts. Some Courts giving to the term a somewhat restricted and others giving to it a liberal construction. Again at page 612 of the same treatise as: "Regulate' is further defined as meaning to put or keep in good order; to methodize; to arrange; to dispose; to produce uniformity of motion or action. The term is also employed as meaning to foster; to protect; to provide for. "The word 'regulate' ordinarily indicates not so much the creation or establishment of a new thing as the arranging in proper order and controlling that which already exists and it has been held to contemplate or imply the continued existence of the subject-matter to be regulated." The word "regulate" is defined in Volume 36-A of the Words and Phrases by West Publishing Co. As at pages 303 to 305 as:-- "A power to regulate implies a continued existence of the matter to be regulated. State v. Clarke 54 Mo. 17,33,14 Am.Rep. 471: State v. McCann, 72 Tenn. (4 Lea) 1,13. " "To regulate" in the sense intended is to foster, protect and control the commerce with appropriate regard to the welfare of those who are immediately concerned as well as the public at large and to
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promote its growth and insure its safely: Great Northern Utilities Co. v. Public Service Commission 293 pp. 294, 301, 88 Mont. 180. " While the word 'regulate' has been given a comprehensive meaning and construed to signify both Government and restriction thereby including in an act all subject germane to the object named it does not so much imply creating a new thing as arranging in proper order and controlling that which already exists:-Cote v. Village of Highland Park 139 N.W. 69, 74, 173, Mich. 201." To regulate' is to fix or control the manner in which a thing is to be done to prescribe a rule or method for doing it. It is comprehensive enough to cover the exercise of authority over the whole subject to be regulated: Southern R.Co. v. Russell 112 S.E 700, 703, 133 Va. 292." Similarly the word 'regulate' is defined in the Fifth Edition of Black Law Dictionary at page 1156 as: "Regulate. To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws. The power of Congress to regulate commerce is the power to enact all appropriate legislation for its protection ox advancement; to adopt measures to promote its growth and insure its safety; to foster protect, control and restrain: Virginian Ry. Co. v. System Federation No.40, Railway Employees Department of American Federation of Labor, C. C. A. Va 84 F. 2nd 641, 650." 17. A comprehensive reading of the above definition of the word' regulate', cannot making of the law prescribing the manner, method and procedure of the exercise of the power by the Court, not controlling its power, but arranging the same in a way that a fair trial is ensured. Even if the .Law and rules are not framed for regulating the power, the superior Courts are still at C liberty to exercise the power vested in them under this section to punish any person for contempt of Court; and even after framing the law and rule, if any of their provision restrict, curtail or abridge the powers of Courts, that shall be ignored as non-existent and the Courts can proceed in the matter. We may refer here a few authorities from India and Pakistan dealing with the position of law to regulate the exercise of the power. 18. In "Ashfaque Ahmed Sheikh v. The State" (PLD 1972 Supreme Court 38), it is held at page 50 as: "The next contention of the learned counsel is that rules not having been framed under Article 123 of the Constitution, the power to punish under that Article is not available. I do not find any substance in this contention either. Clause (2) of Article 123 empowers a High Court and the Supreme Court to punish any person who is found guilty of any -of the offensive acts mentioned in sub-clauses (a) to (d) of that clause. The exercise of this power to punish for contempt is absolute and unqualified and is not dependent upon the rules which the Court concerned is authorized to make. Clause (3) of Article 123 which contains a reference to rules runs thus: 'The exercise of the power conferred on a Court by this Article may be regulated by law and subject to law, by. Rules made by the Court." This clause is an enabling provision and cannot be taken to have overridden the power to punish under clause (2). In the instant case, the punishment that can be imposed by the High Court is regulated by the Contempt of Courts Act, 1926 and the provisions of that Act were observed in imposing the sentence on the appellant. The mere fact that rules for regulating the exercise of the power to punish for contempt have not yet been made does not mean that the very power to punish has become nugatory." 18. In the case "The State v. Sheikh Shaukat Ali, Advocate and 3 others" (PLD 1976 Lahore 355), it is held at page 370 as: "B Another objection raised by Hakam Qureshi was that the power to punish for the contempt of a High Court is conferred on it by clause (2) of Article 204 of the Constitution. In clause (3) it is laid down that 'the exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court'. It was, therefore, argued before us that since after the promulgation of this Constitution, no law had been made to regulate the exercise of power
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conferred by this Article and as no rules have also been framed, therefore, Article 204 was a dead letter and lying dormant to confer any power on this Court to punish a contemner. The plea raised has no merit. Clause (3) simply talks of regulation of the exercise of the power conferred on this Court and does not make the power conferred by clause (2) dependent upon the existence of the aforesaid law or the rules. A similar of the aforesaid was raised in Ashfaque Ahmed Sheikh v. The State but was repelled by the Supreme Court. " 19. In Dr. A.N.M. Mahmood v. Dr. M.O. Ghani, Vice-Chancellor and others (PLD 1967 Dacca 67), it has held as: "The object of the discipline enforced by Court in case of 'contempt' is not to vindicate the dignity of the Judge in person, but to prevent undue interference with the administration of justice or the doing of an act the tendency of which is to deprive the Court of an unfettered course with a view to dispense even-handed and impartial justice in accordance with law. It is delinquent, if so found, to answer for the impediment which they have caused to the steady course of judicial administration. The danger of such obstruction is greater in case of inferior Courts, for they have no such power as we propose to exercise in this case. It is not a new fangled jurisdiction, which is purely a creature of Article 123 of the Constitution. It is old as the system of law, which this Court has inherited The affidavits-in-opposition contain a number of frivolous defences which have been exploded more than hundred years ago. I have no desire to embarrass the lawyer who advised their drafting but I may remind him that 'prolix, frivolous and scandalous pleadings have been…
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