THE STATE Versus THE DEPUTY INSPECTOR-GENERAL OF POLICE, RAWALPINDI AND 2 OTHERS
This judgment will be read in connection with my order, dated 28-10-1996. In the earlier order noticing complete road blockade at a point where the sign board of Fouji Foundation Hospital is installed on the main G.T. Road (Rawalpindi to Lahore) about 300 metres from the point where the road to the High Court premises ascends and finding the blockade to be interfering in the smooth working of the Court, I had issued contempt notices to the senior Officers of the District Administration of Rawalpindi namely District Magistrate, Deputy Inspector-General of Police and Senior Superintendent of Police, Rawalpindi to appear before me and to show cause as to why they may not be committed for contempt of Court. The respondents appeared as directed at 1-00 p.m. when they assured the Court that the road blockades will be cleared. They were directed to file a written reply to the contempt notices, which they have done. In view of the importance of the issue, I called upon the Advocate-General, Punjab, the Deputy Attorney-General of Pakistan, the President Supreme Court of Pakistan Bar Association and the President Lahore High Court, Rawalpindi Bench Bar Association to appear and assist the Court. Except for the President Supreme Court Bar Association, the others appeared and made detailed addresses on the issue.
2. On 29-10-1996 Mr. Ibad-ur-Rehman Lodhi, Advocate, also filed a Constitution petition viz. Writ Petition No. 1774 of 1996 in his name seeking a declaration of the invalidity of the road blockades made by the respondents at various points and at different roads of Rawalpindi City. This petition was directed to be heard alongwith the present suo motu contempt proceedings. The said petition is being disposed of by a separate judgment today.
3. Through various letters and communication addressed to this Court from various areas of the Province, it was brought to notice that road blockades were not confined to Rawalpindi alone but all over the Province. Number of lawyers and citizens appearing before me on 27th and 28th October, 1996 made complaints of road blockades that made it difficult for them to reach this Court. Number of citizens appears in Court on 27-10-1996 to complain that they were not being permitted to leave Rawalpindi and to go to other stations like Gujar Khan etc.
4. In this judgment apart from the question of contempt of this Court, the validity of the road blockade in question (the one mentioned in the beginning) will have to be of necessity examined because if it is concluded that the act of blockade was without sanction of law, the contempt would stand aggravated. If, however, the conclusion is that the respondents have the jurisdiction and the legal authority to raise the blockade as they have done in this case, the question of contempt would still be relevant but without aggravation. It is on account of this that the exercise undertaken in these proceedings was widened and the learned counsel and Law Officers were directed to assist not only on the question of contempt of Court but also on the question of legality of the act of blockade.
5. Article 15 of the Constitution of the Islamic Republic of Pakistan confers a fundamental right of free movement throughout Pakistan on every citizen, subject to any reasonable restriction imposed by law in the public interest . Article 16 of the Constitution of the Islamic Republic of Pakistan confers on every citizen the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order . The other relevant statutory provisions are sections 31 and 33-A(1)(a)(d) (h) (m) of the Police Act, 1861, which are reproduced as under:--
"31. Police to key order in public roads, etc . --- It shall be the duty of the police to keep order on the public roads, and in the public streets, thoroughfares, Ghats and landing places, and at all other places of public resort, and to prevent obstructions on the occasions of assemblies and processions on the public roads and in the public streets, or in the neighbourhood of places of worship, during the time of public worship, and in any case when any road, street, thoroughfare, Ghat or landing place may be thronged or may be liable to be obstructed.
33-A. Powers of the District Magistrate to make rules regarding use of streets, etc. .--- (1) In any town or other place in which he thinks fit, the Magistrate of the District may, from time to time and subject to such order as may have been made by a Municipal or other authority empowered in that respect, make rules or orders---
(a) closing certain streets or places temporarily, in cases of danger from ruinous buildings or other cause, with such exceptions as shall appear reasonable;
(d) prohibiting the hanging or placing of any cord or pole across a street or part thereof, or the making of a projection or structure so as to obstruct traffic or the free access of light and air;
(h.) prohibiting, save under such regulations as aforesaid, the exposure or movement in any street of persons or animals suffering from contagious or infectious diseases and the carcasses of animals or part thereof and the corpses of persons deceased;
(m) regulating the movement of persons, animals and vehicles at such times and such places at which, in the opinion of the Magistrate, special regulations may be necessary for the public safety and convenience;"
Section 32 of the Police Act, 1861 provides penalty for disobeying the orders passed in the last three preceding sections while section 34 of the Act also provides penalty for committing the prescribed offences on the road.
6. Section 78 of the Motor Vehicles Ordinance, 1965 empowers the Government or any other authority on its behalf to restrict the use of vehicles on road or bridge. The said section is also reproduced below:--
'Section 78. Power to restrict the use of vehicles. --- Government or any authority authorised in this behalf by Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may, by notification in the official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class of motor vehicles or the use of trailers either generally in a specified area or on a specified road or bridge, and when any such prohibition or restriction is imposed, shall cause appropriate traffic, signs to be placed or erected under section 79, at suitable places in such area on or near such road or bridge, as the case may be:
Provided that where any prohibition or restriction under this section is to remain in force for a period of not more than one month, notification thereof shall not be necessary."
Other relevant statutory provisions are those contained in sections 133 and 144 of the Criminal Procedure Code, 1898. Under the former obstruction/public nuisance on the road can be got removed in the manner laid down therein while the latter empowers the Magistrate of the District to pass certain orders specified therein.
7. The onus to justify the blockade lies heavily upon the respondents who had to show that the blocking of the aforesaid road through heavy stones, concrete beams and containers placed across the road from one end to the other, is valid. During the course of hearing, the respondents-officers were questioned as to whether any written order directing blocking the road was passed and, if so, under what provision of law. The District Magistrate admitted that he had not passed any order in writing either under section 31 or under section 33-A of the Police Act, 1861 or under section 78 of the Motor Vehicles Ordinance, 1965. His learned counsel, however, did rely on an order, dated 18-9-1996 passed by him under section 144 of the Criminal Procedure Code, 1898 prohibiting the taking out of the procession within the revenue limits of Rawalpindi District and further prohibiting assembly of five or more persons at any public place. This order was to remain in force for two months. As will be seen, learned counsel for the respondents heavily relied on this order to support the road blockade. Some material such as F.I.Rs. recorded at various police stations in District Jhelum and others have also been placed on record to show that the marchers/protesters coming from various areas towards Rawalpindi had damaged police property and also caused injuries to the officials /constables.
8. The bare perusal of the above provisions of law makes it abundantly clear that there is no power with any of the respondents to completely and totally block any road or public street or path, at least during peace time and when the above fundamental rights are intact. All that they can do is to regulate the use of highways and road, and that also after observing the formalities and pre-conditions stated in the relevant statutory provisions and after giving due publicity to the same so as to cause minimum inconvenience to the users of the roads. Since it is not the case of the respondents that they acted under the provisions of the Police Act, 1861 or Motor Vehicles Ordinance, 1965, no further comment need be offered on these provisions except to state that these sections are only enabling provisions and the same postulate a formal order being passed by a competent authority before the same is implemented/enforced.
9. Raja Muhammad Bashir, learned Deputy Attorney-General for Pakistan, while taking no sides during the course of his address, cited a case entitled Qari Abdul Hameed Qadri v. District Magistrate, Lahore and another PLD 1957 (W.P.) Lah. 213 to point out what is reasonable restriction and that the right can be totally prohibited by law. The statement of law may be correct but cannot arise for application in this case inasmuch as the reasonable restriction has to be imposed by law and not by an order under the law. In other words, the right of freedom of movement and assembly can be subjected to reasonable restriction by making a law not by issuing an order. As noted in this case, none of the respondents claimed to have passed any order under any provision of law empowering them to block the road. In this view while it may be correct to say that the rights conferred by Articles 15 and 16 of the Constitution of the Islamic Republic of Pakistan can be partially and completely prohibited, this statement of law is not attracted to the present situation.
10. Sardar Muhammad Ishaq Khan, Advocate, representing respondents forcefully submitted that the blockade should be upheld by this Court as the respondents were apprehending armed marchers into the city of Rawalpindi and had the road not been blocked, there was serious danger to the life, liberty and property of the general public. In his further submission the order promulgated under section 144 of the Criminal Procedure Code, 1898, dated 18-9-1996, although in terms does not authorise blocking the road but in order to prevent assembly of five people the blockade will have to be justified and declared to be covered by the aforesaid order under section 144 of the Criminal Procedure Code, 1898.1 am afraid the argument is untenable for number of reasons. One major reason is that the blockade also affected the innocent users of the roads. Even the ordinary citizen not concerned with the protest and lot of persons wanting to leave the city of Rawalpindi, were prohibited from doing so. If the respondents in their own judgment were clear about the gravity of the situation and the threat of incoming protesters, they were called upon to use their wisdom to avoid the threat as also to see the innocent users of road particularly persons desiring to go out of the city are permitted to .do so or at least are put to minimum inconvenience. No such measures seem to have been taken nor the learned counsel in the course of his address indicated the steps taken to minimise the miseries of ordinary users of roads particularly school children and patients etc. It seems that respondents were not aware of the consequence of the blockade and they were obsessed with the idea of stopping the incoming marchers. The act of blockade in any case seems to be completely disproportionate to the problem faced by the respondents. It will have, therefore, to be concluded that in blocking the road at the point indicated in the beginning of this judgment, respondents had no legal authority.
11. This takes me to the question of contempt. As seen in the order, dated 28-10-1996 and as gathered later on that day on account of the aforesaid blockade of the road most of the lawyers, Court's officials and litigants could not reach this Court. Majority of the cases on 27-10-1996 had to be adjourned for non-availability of the learned counsel. Those who reached the Court could manage it with extreme difficulty and inconvenience and by adopting routes normally not used. Even the learned Deputy Attorney-General for Pakistan stated that he suffered the same treatment on the said day and could reach the Court with difficulty. Although from complaints made in Court, from press reports and other material, it could be gathered that the entire city life had been frustrated on that day due to blockades erected at various points, I am avoiding taking those into count and confining myself to the fact of the blockade noted above. To me this blockade of the road was totally unnecessary if the idea was to stop the incoming marchers. Just about 300 yards towards Lahore side, the Sowan Bridge (Nala Lae) had been blocked on both sides by placing heavy concrete beams across the road. No marcher coming from southern cities to Rawalpindi could have crossed the bridge but in their wisdom, the respondents also erected the disputed barrier. This barrier created hindrance to the working of this Court inasmuch as lawyers, Court's officials, litigants and even the Judges coming from Rawalpindi City could not come to the High Court without the courtesy of the police force manning the blockade. This clearly amounts to hindering the administration of justice and frustrating the working of this Court.
12. Sardar Muhammad Ishaq Khan, Advocate, however, has defended his clients by urging that his clients never intended to either create hindrance in the way of the relevant persons to approach this Court or to frustrate in any manner the working of this Court. Even if that be so and it may be accepted that respondents had no intention to frustrate the working of this Court, this does not mean that their action would not amount to contempt of Court. Section 3 of the Contempt of Court Act, 1976 defines contempt and it is wide enough to include an act which "tends" to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings and so on. The respondents being in control of the district administration must be affixed the responsibility and the knowledge of the consequence of the road blockade. If they were unaware that they would be adversely affecting the working of this Court, one can only pity their wisdom and power of analysis. A person has to own the logical result consequence of the act whether that consequence is intended or not. The argument, therefore, is no avail to the respondents in so far as the determination of the question of contempt is concerned. It may be relevant to the question of the sentence.
13. Number of reported judgments have been placed before me touching the question of contempt and also as to when the same should be used. With reference to these judgments, it is pointed out that the power of contempt should be used sparingly, in the case of contumacy, only to vindicate the honour of the Court and not to wreck any vengeances. The judgment has also been cited by both Sardar Muhammad Ishaq Khan, Advocate, as well as Mirza Anwar Baig, Advocate, to throw light on the quantum of punishment. For instance in case entitled Muhammad Samiullah Khan and another v. The State PLD 1963 SC 237 it was held that reprimand is a recognised mode of punishment where offence is not grave. Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the respondents has also urged that the contempt proceedings being criminal, all doubts have to be excluded before recording conviction. For this purpose case titled Mian Qadiruddin and another v. Mian Ghulam Yaqoob Bandey and another 1977 SCMR 475 was cited.
14. The precise nature of the contempt jurisdiction has been examined by the Supreme Court of Pakistan in number of cases. In case titled Saadat Khialy, Staff Reporter ("Kohistan" Daily) and others v. (1) The State (2) Shama Overseas (Private) Ltd. PLD 1962 SC 457 the Supreme Court of Pakistan held this jurisdiction to be sui generis, neither wholly criminal nor wholly civil but partaking of both. As late as 1996, the Supreme Court of Pakistan in case reported as The State v. Khalid Masood, Regional Director, Pakistan Narcotics Control Board, Lahore and 3 others PLD 1996 SC 42 held that rules of criminal jurisprudence viz. where two views are possible one in favour of the accused should be adopted, is not applicable to administrating the contempt law. The preponderance of view, therefore, is that the strict rules of criminal administration of criminal justice do not apply while dealing with contempt matters.
15. Sardar Muhammad Ishaq Khan, Advocate, for the respondents has also relied on- apology tendered by the respondents in their written statement. Number of judgments both by him as well as Mirza Anwar Baig, Advocate; have been cited on the question of apology namely what is an apology, when it is to be accepted and when it purges the contemner. The principle of law which can be deduced from the earlier precedents is that the apology has to be unconditional, made at the earliest, without any efforts to justify the act of contempt and should reflect genuine remorse and contriteness on the part of the contemner. In some cases such an apology can be held to have purged the contemner while in majority the apology has been taken into consideration as a mitigating circumstance for imposing a sentence.
16. As a result of the above discussion and keeping the principles of law noted above, in view, I hold that the act of blocking the road aforesaid and denying the use of road to persons desiring to approach this Court is an act calculated to hinder the working of this Court and to frustrate the administration of justice. Even if the respondents did not intend such a result, their action is covered by the definition of contempt as laid down in section 3 of the Contempt of Court Act, 1976. I, therefore, hold each of the three respondents guilty of the same.
17. Although the blockade has been held to be without sanction of law but I would accept the argument of both Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the respondents and that of Mirza Anwar Baig, Advocate, that this Court should take a lenient view on the question of sentence. This argument has further to be accepted inasmuch as each of the learned counsel appearing stated that this case seems to be the first of its kited and that none of them has been able to get hold of any precedent case whereby the senior Officers of the District were proceeded against in contempt, in these circumstances. Since the purpose is to vindicate the majesty of law and the honour of the Court, after holding them guilty as aforesaid I would only impose a sentence of fine of Rs.100 upon each of the three contemners namely Javed Iqbal Awan, Deputy Commissioner/District Magistrate, Tallat Mahmood, Deputy Inspector-General of Police, Rawalpindi and Mushtaq Shah, Senior Superintendent of Police, Rawalpindi. In default each of the contemner shall' suffer S. I. for one day only.
18. Vide order, dated 6-11-1996 contempt notice was also issued to Syed Safeer Hussain Shah Sherazi, Deputy Superintendent of Police, Saddar Circle, Islamabad for causing obstruction in the way of my learned brother Mr. Justice Muhammad Nawaz Abbasi while his lordship was proceeding to come to this Court. In reply it has been submitted that no blockade was made in the road falling under his control. This assertion remained unrebutted. In the circumstances, the notice issued to Syed Safeer Hussain Shah Sherazi, Deputy Superintendent of Police/Sub--Divisional Police Officer, Saddar Circle, Islamabad, is hereby withdrawn. .
19. In the end, I must place on record the valuable assistance rendered to me in this case by Mirza Muhammad Anwar Baig, Advocate, President, Lahore High Court Bar Association, Rawalpindi Bench, and Raja Muhammad Bashir, Deputy Attorney-General for Pakistan.
N.H.Q./S-87/L Order accordingly.