1. SHAH NAWAZ KHAN, J.--Agha Rashid Ahmad, Tehsildar, Pakpattan, District Sahiwal and Bashir Ahmad son of Umar Khan, caste Rajput, resident of Mauza Shafi, Tehsil Pakpattan, District Sahiwal, have moved this appeal under Article 185 (2) (c) of the Constitution of the Islamic Republic of Pakistan, 1973, against the judgment dated 30-11-1976 passed by Mr. Justice Gul Muhammad Khan in Criminal Original No. 23-W of 1974, whereby the appellants have been convicted and sentenced for contempt of Court as under :-
(1) Agha Rashid Ahmad, Tehsildar, Pakpattan, District Sahiwal, convicted and sentenced to simple imprisonment till the rising of the Court and a fine of Rs. 2,000 or in default one month's simple imprisonment.
(2) Bashir Ahmad son of Umar Khan, convicted and sentenced to simple imprisonment for a period of one month and a fine of Rs. 2,000 or in default to suffer one month's simple imprisonment.
2. The brief facts of the case are as follows: Qadeer Ahmad son of Tayyab of Mauza Shafi, Tehsil Pakpattan filed a Writ Petition No. 690-R of 1973 challenging the orders of the Settlement Commissioner (L), Multan and Deputy Settlement Commissioner (L), Sahiwal, dated 19-0-1970 and 24-11-1969, respectively, praying that the said orders may be declared as null and void and of no legal effect so far as the rights of the petitioners were concerned. It was further prayed that a stay order directing the maintenance of status quo may be issued.
3. As a result of the said prayers, the High Court passed an order on 13-8-1973 directing that the status quo may be maintained. Later it was reported to the High Court by Qadeer Ahmad that the present appellants and the accused have violated the stay order passed by the High Court. It was prayed that proceedings for contempt of Court may be taken against them.
4. Mr. Justice Gul Muhammad Khan of the Lahore High Court before whom the contempt proceedings were pending ultimately came to the conclu--sion that only the Tehsildar Agha Rashid Ahmad and the concerned party, namely. Bashir Ahmad (present appellant No. 2) were guilty of the offence of which they were accused. The rest were held to be not guilty and were acquit--ted. Agba Rashid, Tehsildar, was convicted and sentenced to imprisonment till rising of the Court and also to pay a fine of Rs. 2,000 or in default to suffer one month's simple imprisonment. Bashir Ahmad appellant No. 2 was convicted and sentenced to-undergo simple imprisonment for one month and also to pay fine of Rs. 2,000 or in default thereof to suffer one month's simple imprisonment more.
5. Appellants have now come up on appeal to this Court and they challenge the finding of the learned Single Judge of the Lahore High Court on various grounds. It was contended on behalf of the appellants that the writ petitioners had never claimed the possession of the land, which was the subject-matter of the writ petition and that he had never alleged that he was in actual physical possession. Of the land in question. Further that the actual physical possession of the writ- petitioner could not be implied from his averments made in the writ petition; that Agha Rashid Ahmad appellant No. 1 bad proceeded for the delivery of the possession of the land in question to appellant No. 2 Bashir Ahmad and his covendees in accordance with law. It was also contended on behalf of the appellant that appellant No. 2 and his co-vendees genuinely felt that Qadeer Ahmad was not in actual and physical possession of the land and they felt that status quo was to be maintained with regard to implementation of the orders of S. C. (L.), Multan and S. C. (L), Sahiwal dated 19-6-1970 and 24-11-1969 respectively, which had been challenged in the writ petition. With respects to appellant No. 1 it was contended that he only complied with the directions of his high officers, and that it has been observed by the learned Single Judge, yet he was punished severally.
6. Today in Court only counsel on behalf of the appellant No. 1 appear--ed. None appeared on behalf of appellant No. 2. The Counsel for the appellant No. 1 contended that in the stay order dated 13-8- 1975, it was directed that the status quo be maintained and there was no mention of the possession. He submitted that Bashir Ahmad appellant No. 2 submitted an application to Deputy Commissioner on 23-1-1974, who marked it to Assistant Commissioner and in turn it then went to the Tehsildar on 24-1-1974. The Tehsildar then visited the spot after serving notice on all the concerned persons and that he delivered the possession to Bashir Ahmad appellant No. 2 without knowing about the order of the High Court. The learned Single Judge of the High Court who tried the two appellants has observed that appellant No. 1 has admitted that possession of the land was given to Bashir Ahmad appellant No. 2 by him. Further that Mehdi Hassan, Advocate, who appeared as P. W. 2 has stated that he had himself made an application before 'the appellant No. l and he had submitted a copy of the order of the High Court to him on 12-2-1974 on which date the appellant No. I remarked to pass an order after getting a report from the Patwari concerned. That Patwari was produced by the respondents appellants as D. W.
1. He stated that he had informed the appellant No. I about the stay order issued by the High Court on the day the possession was being delivered to appellant No. 2, etc. It also came on record that on a previous occasion also that very Patwari had declined to obey a similar order of appellant No. 1. The Court observed that there is no reason as to why the Patwari should not have got the effect of the stay order to the notice of appellant No. 1. This was besides the fact that the Tehsildar, i.e. Appellant No. 1 knew that under. M. L.
7. R. 115 the possession of the tenant could not be taken away without the order of the Revenue Court in competent proceedings. Sadiq Ali Patwari (D. W. It had submitted that the stay order granted by the High Court had actually been incorporated in, the Roznamcha Waqiati of the village by the Patwari Exh. P-31 and that Agha Rashid Ahmad appellant No. 1 knew about that stay order. Even earlier an application had been submitted by the appellant No. 2 and his co-accused for the delivery of Batai and they had produced an order from the Assistant Commissioner for the needful but the Patwari stated that it could not be done in view of the order of the High Court and thus he made a report in that regard. Thereafter another application was brought with an endorsement by the Deputy Commissioner, but it was sent back on the same ground. According to this witness ultimately the Tehsildar (appellant No. 1) came to the village with the order of the Deputy Commissioner and he delivered the possession to the appellant No. 2 despite the fact that he had been informed of the stay order granted by the High Court. According to the Patwari, in view of the standing orders only the Kanungo was authorised to deliver the possession at the spot, but in this case it was the Tehsildar, i. e. Appellant No. 1 who did the needful himself.
8. It was contended on behalf of the appellant No. 1 that Agha Rashid Ahmad was not a. Party in the writ petition nor in the proceedings about the stay application. Bashir Ahmad, appellant No. 2 was, however, a party.
9. Reliance was placed on an authority of the Supreme Court of Pakistan reported as Ahmad Shah v.
10. State (PLD1967SC42). In that case it was observed that, "It is no doubt true that for justifying a committal for breach of a prohibitory order it is not necessary to actually prove service of the order upon the party against whom it has been granted but, we regret, we are unable to accept the contention that any kind of report of such an order will be sufficient to fix the party with notice of such an order, In a proceeding of a criminal or quasi-criminal nature it is a fundamental rule that before a person can be saddled with penal consequences of a breach of an order he must at least be shown to have had some definite and authentic information of the nature of the order which he is alleged to have violated". In the instant case besides the fact that Mehdi Hassan, Advocate, did apply to the Tehsildar and placed the copy of the order of the High Court before him, but he was able to persuade the Tehsilder to observe that he would require the report of the Patwari and then pass the necessary orders. The Patwari stated that the order of the High Court had been, in fact, incorporated in the Roznamcha Waqiati and which the appellant No. 1 had seen before he passed the necessary orders for decision. It was a will full disregard and no better proof was necessary.
11. The learned counsel for the appellant quoted another ruling of the Supreme Court reported as Hussain Bakhsh v. Settlement Commissioner (PLD1970SC1). In this judgment it was observed, that `civil proceedings' is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Government. Whether a proceeding is civil or not depends on the nature of subject-matter of the proceeding and its object and not on the mode adopted or the forum provided for the endorsement of the right". It was consequently held that proceeding under Article 96 (now 199) of the Constitution relating to a civil matter, is a civil proceeding although the High Court's jurisdiction in such a proceeding is constitutional jurisdiction of an original kind."
12. Reliance was also placed on another authority of the Supreme Court of Pakistan reported as Muhammad Samiullah Khan and another v. The State (PLD 1963 SC 237) and it was prayed that reprimand "in the instant case" will be sufficient. He contended that the Supreme Court had held.
13. "That reprimand would be the recognized mode of punishment where the offence is no grave." In the instant case no will full non-disclosure of facts is involved. The High Court had passed an order for the maintenance of status quo and the appellant No. 1 knowing it fully well that the High Court order read contrary to what he was doing he neglected to obey that order and delivered the possession to appellant No. 2 etc. We are mindful of the fact that, action to be taken to such a case should be bent upon striking balance between the effect on litigation and public interest in allowing litigants freedom of conducting litigations. When an order of stay or other such prohibitory order has been made by the High Court and when the same was conveyed to Tehsildar (appellant No 1) and he was informed of such order by the Advocate he should have ordinarily accepted what was stated by the Advocate and should have stayed further proceedings. When the copy of the order was placed before the Tehsildar, he could not say that he was not satisfied about the source of information. Even if no affidavit is filed the proper course to adopt, for the Tehsildar, was to act upon the information supplied to him by the Advocate and ask him to file an affidavit in support of that statement. Mr. Mehdi Hassan. Advocate, had stated in very clear words that he had filed a copy of the order of High Court, but the Tehsildar contrary to the above did not stay the proceedings and delivered the possession. It was, therefore, clear that he acted deliberately and so he could not escape commission of contempt of Court.
14. We have considered the case very seriously and we have come to the conclusion that appellant No. I did commit the contempt of Court and therefore he was properly convicted and punishment awarded to him is, in our opinion, also proper. We, therefore, see no substance in this appeal and it is consequently dismissed.
15. The appeal of appellant No. 2 also fails because neither he nor his counsel or attorney nor the Advocate-on-Record is present on his behalf to prosecute the appeal. He was a party to the said proceedings and whatever he did, clearly amounted to contempt of Court. We are, therefore, of the view that he has been properly convicted and punished. His appeal is also dismissed.