JUDGMENT.
Through the impugned judgment dated 04.7.2007. Mr. Muhammad Safdar Khan Sikandari, learned Sessions Judge, D.I.Khan, has convicted Abdul Hai son of Haji Ghaus and Muhammad Aslam Khan, Sub-Registrar, D.I.Khan, under Order 39, Rule 2(3) C.P.0 and sentenced each of them to civil imprisonment for four months and directed restoration of the disputed property to the position prior to the status-quo order, by cancelling the registered deed No, 1356, executed by Abdul Hai on 26.4.2007, which was registered by Sub-Registrar Muhammad Aslam, Their sentence was suspended and they were released on furnishing bail bonds, keeping in view more than eighty years age of Abdul Hai, and official status of Muhammad Aslam, Sub-Registrar.
2. Abdul Hai has filed the instant appeal and Muhammad Aslam, Sub-Registrar, has filed the connected RFA No, 35 of 2007 titled Muhammad Aslam vs. Faizullah etc. My this judgment will dispose of both these appeals.
3. I have heard arguments of learned counsel for the parties and have gone through the record.
4. The facts leading to present appeals are these Faizullah instituted civil suit against Abdul Hai for specific performance of contract of sale. He also moved an application for temporary injunction to maintain status-quo. The suit and the application were entrusted to the Court of Mr. Shahid Mehmood, Civil Judge-III, D.I. Khan who issued summon and notice on 06.11.2006, for 10.11.2006, with the direction that status-quo be maintained till date. On 10.11.2006, the status-quo order was not extended. On 02.4.2007, i,e, to say after about five months. Faizullah moved another application in the trial Court for issuance of a stay order but the trial Court issued a notice only. Meaning thereby that the stay order was refused. Faizullah got aggrieved and he filed an appeal in the Court of learned District Judge, D.I.Khan on 03.4.2007 to call in question the refusal of trial Court to issue status-quo order. An application was also annexed whereupon learned District Judge wrote that status-quo be maintained till next date, subject to notice to the opposite party. Thereafter, appeal was properly heard and decided on 25.4.2007. His judgment dated 25.4.2007 reveals that the case was returned to trial Court with the direction to dispose of the application for temporary injunction on merits.
6. On 26.4.2007 Abdul Hai transferred the property, vide the deed dated 26.4.2007 which was registered by Muhammad Aslam Khan, Sub-Registrar. Faizullah again got aggrieved and he moved a petition before learned District Judge, D.I.Khan on 29.5.2007 to punish Abdul Hai and Muhammad Aslam Sub-Registrar for violation of stay order. Both were asked and they submitted written replies of the application. Abdul Hai took the plea that there was no stay order existing at the time of execution of the deed on 26.4.2007 and Muhammad Aslam Sub-Registrar took the plea that he was unaware about the stay order, if any. Learned District Judge, after going through the said replies, straight away convicted Abdul Hai and Muhammad Aslam Sub-Registrar as mentioned above and hence, these appeals.
7. In order to meet with the plea that whether there was any stay order on 26.4.2007 or not, learned District Judge, D.I.Khan placed reliance on the case Raja Talat Mehmood. Vs. Ismat Ehtisham-ul- Haq (NLR 2004 Civil 4) wherein it is held that once a status-quo order is issued by trial Court under Order 39, Rule 2-A for fifteen days, it would be deemed to have continued and it is not necessary to pass specific order of extension of interim status-quo order. However, with all respect to the cited judgment of Honourable apex Court, it is found that the facts of the present case are not identical to that case because in the present case, the status-quo order once issued by the trial Court on 06.11.2006 upto 10.11.2006 was not only not renewed but after about five months, when a fresh application was moved by Faizullah respondent, only a notice was issued and the status-quo order was expressly refused, as admitted by Faizullah respondent in the memo of his appeal dated 03.4.2007 filed in the Court of learned District Judge, D.I.Khan, the certified copy of which is available on this record and that was why he preferred an appeal. In this state of affair, the intention of trial Court is manifest that the interim stay order was refused. Thereafter, learned District Judge issued a stay order on 03.4.2007, subject to notice, till the date fixed and the appeal was disposed of on merits on 25.4.2007. The judgment, disposing of appeal, does not mention that any stay order exists.
8. Penal provisions of law are always required to be applied with due care and caution, especially when the question of sentence of imprisonment and liberty of a citizen is involved. This duty of Court extremely aggravates when someone is being punished with imprisonment in the proceedings arising from civil matters. Although the penalty of sentence imposable under Order 39, Rule 2(3) C.P.C, has A been codified in the Code of Civil Procedure, but since it has a penal effect, it is of semi criminal nature, because ultimately the guilty person is to undergo the sentence of imprisonment. Therefore, before convicting and sentencing someone, the Civil. Court must, besides the violation of any order, satisfy itself that the violator of the stay order had intention to challenge the authority of the Court and it was not an act under some misunderstanding or misconception. I mean to say that existence of mens area at the part of violator of status-quo order is essentially required to be explored and established beyond doubt.
9. With these views, when I glance over the record present before me, initially there existed no stay order on 26.4.2007, and if at all, it is presumed to be existing, then Muhammad Aslam Sub-Registrar (appellant) was unaware of it because he was not a party to the proceedings, nor any such order was communicated to him. Abdul Hai (appellant) could be, in the given circumstances, under a bona fide impression that there existed no stay order. As such intention to violate Court order is not visible, beyond doubt. For these reasons, the conviction of both the appellants is not sustainable.
10. There is yet another aspect of the case which cannot be ignored. While convicting and sentencing both the appellants, learned District Judge, D.I.Khan presumed existence of the stay order of the trial Court and its violation. The matter was actually pending in the trial Court.
Therefore, the contempt application should have been moved, entertained and decided in the trial Court, as discussed and decided in the case of Dr. Abdul Ghani Siddiqui Vs. Govt. of Sindh, 1990 M LD 773.
11. Learned District Judge, through the impugned judgment, received only written reply of the appellants and convicted them. It was in violation of the guideline imparted by I this Court in the case Ghulam Sarwar Vs. Ghulam Rabbani and 3 others (PLD 1992 Peshawar 130), wherein it has been explained that penalty imposable under Order 39, Rule 2(3) C.P.0 in contempt proceedings, being of criminal nature, same have to be conducted in as nearly with the mode prescribed for dispensing justice in a criminal case as far as it is possible, failing which, order of conviction and sentence would be regarded as untenable.
12. For all foregoing reasons, I conclude that neither there was any stay order in this case, nor the convict-appellants Were properly tried at proper forum, nor it is palpable on record that the appellants violated any stay order with clear intention to defy Court order and hence, the impugned conviction and sentence is not sustainable.
13. Before I part with the judgment, it is also required to be mentioned that learned District Judge, D.I.Khan, through the impugned judgment, has directed cancellation of the sale-deed dated 26.4.2007 executed in between Abdul Hai appellant and someone else who is not party to these proceedings. Since the right of a third person (transferee) is involved, the transaction cannot be straight away declared to be invalid simply because of the allegations that it is in violation of a stay order, unless and until the same is properly examined by a competent forum and declared null and void under the law, after hearing all the necessary parties. Therefore, this part of the judgment of learned District Judge, D.I.Khan is also struck down, being not in accordance with law.
15. Consequently, both the appeals are accepted, the conviction of sentence of the appellants is set-aside and they are acquitted from the charge of violation of stay order/temporary injunction.
The part of impugned judgment relating to cancellation of the sale-deed executed by Abdul Hai on 26.4.2007 is also set at naught with the clarification that my this order shall not mean to validate the aforesaid sale-deed and the competent forums would be at liberty to pass any order pertaining to its validity, according to law, if challenged.