THE STATE Versus NIAZ MOHAMMAD

1. Criminal Misc. No. 2542/13-1974 was presented on behalf of Master' Abdul Rashid on 23-7-1974 praying for bail. - It was stated in paragraph 7 that :-

2. "The Police had been in continuous search of the petitioner since the, registration of the false case against him. They had gone to his, house and threatened his family members with dire consequences, if the petitioner was not produced by them before the Ilaqa Police. The petitioner thought to apply for anticipatory bail before the learned Sessions Judge, but be had genuine apprehension that he would be arrested, the moment he entered the Court premises. It was in these circumstances that he chose to approach this Hon'ble Court, for his bail before arrest without first applying to the Court of Session. The apprehension of the petitioner turned out to be true and he was arrested on the very day his application for bail before arrest was to be heard by an Hon'ble Judge of this learned Court."

3. The case was assigned to me by my Lord the Chief Justice and by my order of even date I directed the release of the petitioner Abdul Rashid on bail. In view of the allegations that the arrest had been effected in Court at a time when the application for bail before arrest of Master Abdul Rashid was about to come up for hearing before my learned brother Abdul Ghafoor Khan Lodhi, J., I directed the Registrar to contact the Senior Superintendent of Police, Rawalpindi and find out the name of the Assistant Sub-Inspector, who bad arrested Master Abdul Rashid and to direct him to appear before this Court on 25-7-1974. On 25-7-1974 Niaz Muhammad A. S. I. Police Station Gujjar Khan appeared before me and he made the following statement :-

4. "I arrested Master Abdul Rashid in the 22nd inst., and at that time was accompanied by another, A. S. I. and three constables. He i9 A. S. I. Muhammad Qasim. I arrested him just outside the gate which leads to the Court room of Mr. Justice Abdul Ghafoor Khan Lodhi. I handcuffed him. I am not aware whether I was supposed to arrest anybody from the High Court compound. This is incorrect that I was told by anybody that I was not supposed to arrest Master Abdul Rashid from these premises in any case and particularly because his application for bail before arrest was coming for hearing before Mr. Justice Abdul Ghafoor Khan Lodhi that very day. A. S. I. Muhammad Qasim was at that moment with me"

5. A direction was issued for the appearance of Muhammad Qasim on the ,following day. On 26-7-1974 the statement of Nizam Din Orderly of Mr. Justice Abdul Ghafoor Khan Lodhi was recorded, which runs as .follows

6. "I am Orderly in the High Court. I an: attached to the Court of Mr. Justice Abdul Ghafoor Khan Lodhi. His Court is situated in the entrance to the quardrangle. Just about 8 O'clock in the morning I was standing at the gate of the Court awaiting for his Lordship to arrive. An A. S. I. (he identifies Muhammad Qasim) who had four constables with him, came accompanied by another person who pointed at a person outside Mr. Justice Dr. Nasim Hussan Shah's Court. A. S. I. Muhammad Qasim who is present in Court whom I have identified, tried to catch hold of the man (Master Abdul Rashid) whereupon I said to him that this man has an application for bail before arrest and that he should not be arrested from the Court compound. The answer that he gave was ,

7. BAAD MAIN DEKHA JAI GA HUM NAHIN JANTAY JADGOON WAJOON KO. IS WAKAT IS KO GIRIFTAR KAR LO

8. The Constable handcuffed the man in my presence outside the Court to which I am attached and they went away. The A. S. I. Niaz Muhammad was not with the Police Party at that time. It is incorrect that Niaz Mohammad arrested Master Abdul Rashid."

9. Having recorded the statement and having found that it prime _facie disclosed that .

(1) Niaz Muhammad A. S. 1. who appeared with the record of the case yesterday before this Court and made a statement on oath that he had arrested Master Abdul Rashid from the Court compound, has not made a correct statement.

(2) It was, in fact, A. S. I. Muhammad Qasim who is also present in Court in answer to a call sent by me yesterday, is the officer under whose orders the arrest of Master Abdul Rashid from outside the Court-room of Mr. Justice Abdul Ghafoor Khan Lodhi was effected.

(3) A. S. I. Muhammad Qasim had been made fully aware of the fact that Master Abdul Rashid had applied for bail before arrest and was present in this Court compound as an applicant before this Court whose case was about to come up.

(4) The practice of the Court which is the law for this Court is that applicants for bail before arrest have to be present before the Court when their applications are heard.

(5) By arresting the applicant Master Abdul Rashid, he obstructed the proceedings of the Court by standing in the way of taking up of that application which had to be adjudicated upon that day.

(6) That by uttering the words

10. BAAD MAIN DEKHA JAI GA HUM NAHIN JANTAY JADGOON WAJOON KO. IS WAKAT IS KO GIRIFTAR KAR LO he tried to bring the Court into ridicule and its authority into contempt which is within the mischief of the law of Contempt.

(7) By making a deliberate false statement before this Court Niaz Muhammad also tried to obstruct the proceedings of this Court and to make the Court believe that a person other than the one who had, in fact, been guilty of contempt had done what was being attributed to the former."

11. 1, therefore, called upon A. S. I. Niaz Muhammad and A. S. I. Muhammad Qasim to show cause why they should not be dealt with in accordance with, the Law of Contempt and be punished for it.

12. A. S. 1. Muhammad Qasim then made a statement before this Court, which runs as follows

13. "I came on the 22nd inst., to assist A. S. I. Niaz Muhammad. I admit that I arrested Master Abdul Rashid from the entry to the quadrangle where the Court of Mr. Justice Abdul Ghafoor Khan Lodhi is situated. While I was going to arrest him, the witness who bad just appeared inquired from me if I knew whether the man had any application for bail before arrest. I asked the Orderly to inquire from Master Abdul Rashid and the latter replied that he was in search of a lawyer and had not yet presented any application.

14. To Court :

15. I have seen the application for bail before arrest of Master Abdul Rashid and it shows that it was presented to the Court on 20-7-1974. I also see that there is another stamp on the application which shows that the case has been fixed for hearing on the 22nd July 1974."

16. By a short order passed on 3-8-1974 I convicted Niaz Muhammad and Muhammad Qasim for committing contempt of Court and sentenced them to undergo simple imprisonment till the rising of the Court and further to pay a fine of Rs. 500 each or in default suffer simple imprisonment for one week. I gave a fortnight for the depositing of the fine.

17. The statement of Nizam Din Orderly of Mr. Justice Abdul Ghafoor Khan Lodhi established the following facts :

(a) The application of Master Abdul Rashid for bail before arrest was to come up for hearing before the said learned Judge on the day of occurrence.

(b) A. S. 1. Muhammad Qasim, who was accompanied by four constables and another person tried to arrest Master Abdul Rashid and he was warned by Nizam Din that since the bail application of Abdul Rashid was coming up for bearing that day he could not be arrested from the Court compound.

(c) A. S. I. Muhammad Qasim replied.

18. BAAD MAIN DEKHA JAI GA HUM NAHIN JANTAY JADGOON WAJOON KO. IS WAKAT IS KO GIRIFTAR KAR LO

(d) Master Abdul Rashid was handcuffed by a constable on the orders of A. S. I. Muhammad Qasim and was taken away.

(e) A. S. 1. Niaz Muhammad was not with the Police Party at that time and that he deliberately made a false statement to the contrary before this Court on 25-7-1974.

19. The jurisdiction of this Court to grant bail before arrest in appropriate cases is indubitable, wherefor, the right of a person, who apprehends arrest and considers himself entitled to the grant of bail before arrest to present anal application for this purpose before the Court is equally beyond doubt. It is the established practice of this Court and, therefore, law unto it that and applicant for bail before arrest should be present when the case come Is up for hearing. In any case the right of an applicant to be present and even to make his own submissions before the Court can hardly be, denied) or underestimated. Any attempt to create circumstances, in which an applicant, who is present in the Court compound for the aforesaid purpose is unable to prosecute his application for any action whereby the application for bail before arrest is made infructuous by arresting the man from such compound before the Court has been able to consider the application and pass an order upon it. is undoubtedly an interference with the proper working of this Court, an unwarranted intervention in the exercise of its lawful jurisdiction and an obstruction of its process. In either of these cases it is sheer contempt of superior Court and the gravity of the offence becomes further aggravated if' persons, who are responsible for the execution of the process of this Court and consequently legally bound to obey its commands issued in the exercise of such jurisdiction try to set its authority at naught. Members of the police .force, particularly in matters connected with the dispensation of criminal justice by superior Courts are bound not only to respect its authority and orders but to facilitate the exercise of the former and obedience to the latter. Disregard of such duty is per se contumacious in relation to the arm of the law. If the police were allowed to take upon himself the flouting of the orders or authority of this Court respect for law and maintenance of order in the State would become an impassibility and this democratic country would be converted into some form of anarchy. The Courts cannot b., expected to countenance such a situation without even betting their eye-lids.

20. The following precedents from the English jurisdiction are worthy of note :

21. "It is not necessary that the contempt should be in Court, or that it should be a contempt of a judge sitting in Court ; it must be a contemptuous interference with judicial proceedings in which the judge is acting as a judicial officer."-Re : Johnson (1887) 20 Q B D 68.

22. "In fact, any conduct which is calculated to interfere with the proceedings by assaulting or intimidating litigants or witnesses within the precincts of the Courts, or preventing or hindering. or endeavouring to prevent or hinder them in their access to the Curt or otherwise is a contempt " Oswalds' Contempt of Court, IIIrd Edition,-page 45.

23. 1, therefore, never had any doubt that A. S. 1. Muhammad Qasim was guilty of gross contempt of this Court in the circumstances, which have been narrated above.

24. A. S. I. Nina Muhammad took it upon himself to shield A. S. I. Muhammad Qasim by making a deliberately false statement before the Court, which was given a complete lie to by the Orderly of my learned brother Abdul Ghafoor Khan, J. It passed all comprehension that an A. S.1. of folic should lend himself to such a traversity of truth and perjure himself in the face of a superior Court. Such a bravado can have its foundation in nothing else than utter contempt for the Judiciary in general and the preposterous but extremely dangerous assumption that the police can transgress the law blatantly and with impunity. If such a course of action is allowed to persist the sooner the Courts packed themselves up the better.

25. In these circumstances I would have been justified in imposing the maximum penalty authorised by law but since this is the first time, at least to my knowledge, that Police Officers having acted in this particular manner and have been brought to book I have decided to treat them with leniency but I would like to make it crystal clear that any repetition of such an incident would be met with the maximum penalty provided under the law and this Court would be compelled further to take the matter up with the Government for taking exemplary disciplinary action against the offending officials.

26. A copy of this judgment shall be forwarded to the Home Secretary to the Government of the Punjab so that the quarters that be are warned to behave themselves.

27. S. Q. Order accordingly.