' FAISAL ZAMAN KHAN, J. --- This Intra-Court Appeal is directed against order dated 13.02.2012 passed by a learned Single Judge of this Court in Criminal Original No, 1513-W/2011, through which following direction was given:-- "In view of above, respondents are directed to implement the orders dated 08.3.1973 and 30.4.1973 in the revenue record strictly in accordance with law within one month from today. The requested contempt proceedings against the respondents are, thus, deferred till that time. This petition stands disposed of in the above-said terms".
2. This case has a checkered history; however, it will be appropriate that we catch the thread from the order passed by this Court on 25.11.2010 in Writ Petition No, 178- R/2010:--- "The request is lawful and reasonable. Every Government functionary bestowed with powers under any enactment is obliged to exercise the same in accordance with law within shortest possible time. The learned Member, Board of Revenue, has undertaken that the matter would be decided in accordance with law on availability of the relevant record. The record of the Revenue or Settlement Department can be summoned and made available under the orders of the Board of Revenue without loss of unnecessary time. In these circumstances, the learned Member (Judicial- Ill)/Notified Officer, Board of Revenue/respondent No, 2 is directed to decide the matter purely on merits and strictly in accordance with law within four weeks of the receipt of the copy of this order.
The office is directed to transmit the same to the said officer. The writ petition stands disposed of in above terms."
3. In pursuance to the above direction, an order was passed on 12.2.2011 by Mr. Azhar Hussain Shamim, Member WAD/Notified Officer, Lahore and Faisalabad Division, Board of Revenue. Feeling aggrieved of passage of the above order, Criminal Original No, 371-W/2011 was preferred by the respondents, which was decided on 03.8.2011, with the following order:- "Learned counsel for petitioner submits that he will be satisfied if Member Board of Revenue, respondent No, 1 modify or review his order to the extent of re-verification of petitioner's claim. The petitioner's case has already been finalized and matter will be dealt in terms of order dated 30.4.1973 and order passed by this Court in writ petition No, 178-R/2010datecl 25.11.2010. The respondent No, 1 submits that due to some misunderstanding impugned order was passed and he is ready to revisit the same, however, even if this Court is of the view that he has committed any offence of contempt of Court, he tender his unconditional apology. Order accordingly.
Contempt notice issued to respondents is withdrawn. The Member Board of Revenue, respondent No, 1 will pass an appropriate order for revisiting his order within 15 days from today.
2. With these observations, this petition stands disposed of."
4. As an undertaking was given by Mr. Azhar Hussain Shamim that due to some misunderstanding, impugned order was passed and he is ready to revisit the same, therefore, he was directed by the Court to do the needful within fifteen days. Since this order was also not complied with, therefore, Criminal Original No, 1513-W/2011 was preferred, in which the learned Single Judge ordered the appellant to implement orders dated 08.3.1973 and 30.4.1973; hence this Intra-Court Appeal.
5. Upon a question posed by this Court about maintainability of the appeal, learned counsel for the appellant has referred to Article 204 of the Constitution of the Islamic Republic of Pakistan read with Contempt of Ccurts Ordinance, 2003 to argue that in case an order, interim or final, is passed by a court, the same is challengeable under Section 19 of the Ordinance ibid; hence this appeal is maintainable. On merits, learned counsel contends that in contempt proceedings, a Court can only hold a person, against whom contempt proceedings are initiated, to be guilty or otherwise and can punish him. On the strength of judgments reported as Mehdi Hassan, Additional Secretary, Food and Forests Department, Government of West Pakistan and another v. Zulfiqar Ali, Conservator of Forests, Development Circle, Lahore [PLD 1960 (W.P.) Lahore 751] and Mrs. Razia Yaqub v. Malik Muhammad Ashiq and 2 others [PLD 2003 Lahore 486], he argues that an order for implementation of a judgment could not have been passed in contempt proceedings. He also argues that in pursuance to a direction passed by this Court in Writ Petition No, 178R/2010, an order was passed by the predecessor of the appellant on 12.2.2011; therefore, the order passed by this Court has been complied with in letter and spirit, thus, there was no circumstance to issue a direction to the appellant to implement orders of 1973 He has also pointed out that statement made by Mr. Azhar Hussain Shamirn was not of much significance as he was transferred on 15.06.2009 and was no more a Notified Officer when he appeared before the Learned Single Judge on 03.8.2011 in Crl.Org No, 371W/2011. What he undertook to do was beyond his capacity and jurisdiction. In the above backdrop, it is argued that the order passed by the learned Single Judge is not sustainable; hence it is liable to be set aside.
6. Conversely, learned counsel for the respondents has taken us through the checkered history of the litigation, which went up to the Hon'ble Supreme Court of Pakistan and according to him, has been decided in favour of respondents. In this backdrop, learned counsel for the respondents contends that the direction issued by this Court in Writ Petition No, 178-R/2010 was in fact for the implementation of the order passed by the Hon'ble Supreme Court of Pakistan and not to merely pass an order. It was asserted that non-implementation of the order of Hon'ble Supreme Court of Pakistan is a clear contempt as contemplated in Syed Hassan Mehdi and others v. Province of Punjab and others [PLD 2011 S.C. 916]. Further argues that instead of implementing the order passed by the apex Court, the very act of Notified Officer by way of referring the matter to the Verification Committee was contemptuous and was not sustainable. He also argues that the present appeal is not maintainable insofar as that it is against an interim order as no conviction has been ordered. On the strength of judgment reported as Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others [PLD 1992 S.C. 263], he argues that the impugned order is only challengeable before the Hon'ble Supreme Court of Pakistan. He has also highlighted that as against the order passed by the Notified Officer, an appeal/revision was competent; hence the present Infra-Court Appeal is not maintainable. He also argues that the Notified Officer was not competent to reopen a matter, which has once decided by the Honourable Supreme Court of Pakistan. He relies on lmtiaz Ahmed and others v.
Administrator (Residual Properties)/Settlement Commissioner, Rawalpindi and others [PLD 2011 S.C.
342], Nazar and others v. Member (Judicial-II), BOR [2010 SCMR 1429] and Din Muhammad and 4 others v. Member, Board of Revenue Punjab, Lahore and others [2004 YLR 681].
7. Learned Law Officer was asked to assist the Court oil the question as to whether in contempt proceedings, an order could be implemented. She adopted the arguments of learned counsel for the appellant and reiterated that this Court is not vested with the jurisdiction in contempt proceedings to order for implementation of an order.
8. We have heard the learned counsel for the parties and have gone through the record.
9. It is not necessary for us to deliberate on the long-standing history of the litigation as the learned Single Judge has made a commendable effort compiling and discussing the total history of the case and after deliberations has passed the impugned order, however, before us there is a very limited question as to whether a Court while exercising jurisdiction under Article 204 of the Constitution or Contempt of Courts Ordinance, 2003 can order implementation of an order or will haul up a person in contempt and punish him.
10. Upon perusal of the order passed by this Court in Writ Petition No, 178-R/2010, which has been reproduced in the previous paragraphs, which was unambiguous and unequivocal insofar as that on the request of the respondents, a direction was issued to the Notified Officer to decide the matter in accordance with law within a stipulated time. We are of the view that through order dated 12.2.2011 the direction issued by this Court was sufficiently complied with insofar as that the matter was decided by the Notified Officer. This could have been the grievance of the respondents that the order passed by the Notified Officer was not in accordance with law, which at best could have given a cause to the respondents to challenge the same in some collateral proceedings but could not have been subject-matter of a contempt petition. In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan in Chief Executive, Multan Electric Powers Company (MEPCO), Multan and others v. Messrs Colony Textile Mills Limited and others [2012 SCMR 906] has held that a Court in contempt jurisdiction will not sit as a Court of appeal to decide about the vires of an order which has been passed in pursuance to a direction issued by the Court. The relevant portion of the said judgment is reproduced hereunder:--- "Once a finding has been handed down by the Committee, it would not be for us to comment upon that as this Court by no stretch of imagination can sit in judgment over the said finding as a Court of appeal. It was in view of this essential aspect of the case that this Court while disposing of Criminal Original Petition No, 82 of 2009 observed that petitioners may avail remedy, if so desired before the competent forum in view of the finding submitted by the Committee, Learned counsel appearing on behalf of the petitioners, who is a senior counsel and having unique stature in the legal profession because of his background asked us to determine the remedy under the circumstances. We are afraid, we at the moment are not seized of a reference where we are required to exercise our advisory jurisdiction to advice the petitioners or to determine their future course in the matrix of the case. When this being the case, we do not think anything has been left with this Court for being implemented. We, therefore, dismiss this petitioner."
11. This Court is of the view that no case for contempt of Court was made out and the order in pursuance to the direction of this Court was passed by the Notified Officer. We would not involve ourselves in looking into the legality of that order as the same is not before us.
12. Much emphasis has been supplied on the order passed in subsequent contempt proceedings Crl.Org. No, 371-W/2011), wherein an under taking was given by Mr. Azhar Hussain Shamim, that he will re-visit the order dated '2.02.2010. This Court is of the view that as the said functionary was no more the Notified Officer at the time when he made the statement (as he was transferred on 15.06.2009), therefore, his statement was of no value. He, for some unknown reasons, committed before the Court to perform an act, which he neither had the capacity nor had the jurisdiction to perform. In view of this fact, proceedings can be initiated against him for mis-stating before the Court but in no event will bind the appellant to acknowledge his undertaking. The direction issued to the appellant to implement orders of 1973 could not have been issued in the above perspective.
13. This goes without saying that this Court has sample powers to get its order implemented by invoking its inherent powers under Section 151, CPC. In this regard; reliance can be placed on Chand and others v. Abdul Ghaffar and others [PLD 1965 (WP) Lahore 596] and Bakhtawar, etc. v. Amin etc. [1980 SCMR 89]. In the case in hand, the situation is somewhat different. As we have already held in the previous paragraphs that order passed by the Learned Single Jude in W.P. No, 178-R/ 2010 was complied with, vires of the said order could not be looked into in contempt proceedings. The respondents either should have thrown a challenge to the said order the same being not in accordance with law and the direction of the Court instead of invoking the contempt jurisdiction or else could have requested the Court to convert their petition as one for implementation of the order. In view of the above, it is held that the learned Single Judge while exercising contempt jurisdiction could not have looked into the vires of the order dated 12.2.2011 passed by Notified Officer and directed the appellant to implement the orders dated 08.3.1973 and 30.4.1973.
14. As regards the powers conferred/invested upon a Court while entertaining/exercising Contempt jurisdiction, it is imperative that certain provisions should be examined.
CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN:
204. Contempt of Court. (1) In this Article, "Court" means the Supreme Court or a 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 Article may be regulated by law and, subject to law, by rules made by the Court.
(Underlining is ours)
CONTEMPT OF COURT ORDINANCE, 2003
3. Contempt of Court---Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a wilful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to, his office, or to disturb the order or decorum of a Court, is said to commit "contempt of Court". The contempt is of three type, namely, the "civil contempt", "criminal contempt" and "judicial contempt.".
4. Jurisdiction:---(1) Every superior Court shall have the power to punish a contempt committed in relation to it.
(2) Subject to sub-section (3), every High Court shall have the power to punish a contempt committed in relation to any Court subordinate to it.
(3) No High Court shall proceed in cases in which an alleged contempt is punishable by a subordinate Court under the Pakistan Penal Code (Act No, XLV of 1860).
(5) Punishment.---(1) Subject to sub-section (2), any person who commits contempt of Court shall be punished with imprisonment which may extend to six months' simple imprisonment, or with fine which may extend to one hundred thousand rupees, or with both.
2. .
3. ..
4. ..
(Underlining is ours)
' A Division Bench of this Court in judgment reported as Mehdi Hassan, Additional Secretary, Food and Forests Department, Government of West Pakistan and another v. Zulfiqar Ali, Conservator of Forests, Development Circle, Lahore [PLD 1960 (W.P.) Lahore 751] has held as follows:- "Acting under the Contempt of Courts Act, he could either find the person proceeded against guilty or discharge him. By this judgment he has simply interpreted the previous order and has given a further direction to the Government though he purports only to repeat the original direction given by the Court. It is argued by learned counsel for the respondent that when an application is submitted for contempt it is open to the Court to grant the party proceeded against further time for obeying the order of the Court and to direct that the proceedings for contempt will be taken if the order is not obeyed within the time fixed. We do not think such an order can be made in criminal proceedings under the Contempt of Courts Act. In those proceedings the person is to be pronounced guilty or otherwise. When an order passed by this Court in the exercise of writ jurisdiction is not complied with two procedures are open to the person aggrieved. He may pray for further directions when there can be a bona fide dispute as to what is the effect of the order or he may apply for action under the Contempt of Courts Act. In the first case the Court may after determining the effect of its order give further directions for its enforcement. Such an order would not be an order in the exercise of criminal jurisdiction. In the second case the Court may either find the respondent guilty or it may discharge him on the ground that the respondent acted in the bona fide belief that he was complying with the order of Court though in fact he was disobeying.
It. Henceforth that person would know the effect of the order and if he still failed to comply with the order, the defence of bona fides would not be open to him in any application that may subsequently be filed under the Contempt of Courts Act. Learned counsel for the respondent also argued that when an order of this Court passed in the exercise of writ jurisdiction is not obeyed, the only course open to the party aggrieved is to apply under the Contempt of Courts Act and that there can be no application for an implementation of the order passed in the exercise of writ jurisdiction. We do not agree. There may be many cases wherein a question may arise as to what is the import of an order or whether it applies to a certain set of circumstances. We do not see why the Court should not be entitled to interpret its own order and to give further direction. It would be like a Court executing a decree. Questions do arise as to what is the meaning of a decree and just as those questions have to be decided by the Court executing the decree the question as to what is the meaning of a writ has to be decided by the Court issuing the writ."
' Another learned Division Bench of this Court in a judgment reported as Mrs. Razia Yaqoob v. Malik Muhammad Ashiq and 2 others [PLD 2003 Lahore 486] has decided as follows:--- "The provisions of Section 4 of the Contempt of Court Act, 1976 as well as the provisions of Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 provide that a contemnor can be convicted by the Court and can be sentenced with imprisonment and fine to the extent provided in the said provisions. No further jurisdiction has been conferred by the said provisions upon a Court seized of such a matter."
15. Upon going through the above-cited law and the judgments on the subject, it becomes crystal clear that while exercising jurisdiction under Article 204 of the Constitution or under the provisions of Contempt of Courts Ordinance 2003, the Court can only "PUNISH" the contemnor and no more.
Even if, for a while, this is presumed that the Court could look into the vires of an order passed in pursuance to its direction, it can only do the same with the perspective of punishing the contemnor.
16. In view of the fact that we have only dilated upon the jurisdiction exercised by the Court in contempt jurisdiction vis-a-vis implementation of an order by the Court, the judgments cited by the learned counsel for the respondents are not of much avail. As regards the maintainability of the present appeal, as the Crl.Org. No, 1513-W/2011 was filed under Article 204 of the Constitution and by virtue of sub-Article 3 of the above Article, procedure provided under Contempt of Courts Ordinance, 2003 shall be applicable. Reading Sections 2 and 3 with 19 of the Ordinance, the appeal in hand is competent.
17. For what has been discussed above, we find that the order passed by the learned Single Judge is not sustainable in law as he could only proceed against the appellant under the contempt laws for non-compliance of the order passed by this Court and punish him for the same. As we see it, by way of passing the order dated 12.2.2011 by the Notified Officer, he has complied with the direction passed by this Court in Writ Petition No, 178-R/2010. Neither any proceedings in contempt could have been initiated against him nor he could have been given a direction for implementation of an order. As regards the statement made on 03.8.2011 by Mr. Azhar Hussain Shamim, as he was no more the Notified Officer after 15.6.2009, he could not have made such a statement. By not disclosing to the Court that he was no more the Notified Officer who could revisit the order, we leave the consequence of the same upon the discretion of the learned Single Judge.
18. The resume of the above discussion has brought us to the conclusion that order dated 13.2.2012 passed by the learned Single Judge in Criminal Original No, 1513-W/2011 is not sustainable. This Intra-Court Appeal is, therefore, accepted and the impugned order is hereby set aside.