' This is an application under the Contempt of Courts Act, 1926, against 7 persons, namely, Mr. Ghulam Abbas Soomro, Mukhtar Hussain Zaidi, Nabi Jan Beg, S. Iqbal Hussain, S. Irtaza Hussain, Khwaja Amir Hassan and Tahir Hussain. Mr. Ghulam Abbas Soomro at the relevant time was S. D. M.
Malir, Mr. Mukhtar Hussain Zaidi was D. S. P. ; while Mr. Nabi Jan Beg was S. H.
0., Korangi.
2. The facts which have led to the filing of this contempt application, briefly stated, are as follows : Plot No, S. T. 13/A, Sector 36-A, K-Area, Korangi, has been earmarked, by the K. D. A. For a Mosque/Imambara. This plot is said to have been sub-divided into two portions on one of which Mosque is under construction and on the other an imambara is being constructed. Unfortunately, disputes arose between the members of the AhleSunnat-Val-Jama'at which was constructing the Mosque and some members of the Shia community, who were managing and constructing the imambara. Because of this tension between the two communities, information was laid before the S. D. M., Malir, by S. H. O. Nabi Jan Beg on 20-8-1975, requesting that proceedings be taken in respect of the disputed premises under section 145, Cr. P. C. And that pending determination of the person or persons entitled to the possession of the disputed premises, the premises be sealed. On this information, the learned S. D. M. (Central), who appears to have been acting at that time in place of S. D. M., Malir, ordered the premises to be sealed. The Anjuman Lashkar-e-Hussaini, who was constructing the imambara, filed a revision application against the aforesaid order, being Criminal Miscellaneous Application No, 773/75. During the pendency of the aforesaid revision application, a miscellaneous application was filed praying for the unsealing of the premises with permission to offer prayers therein. On this application, it was ordered that the mosque/imambara may be kept unsealed from 3-1-1976 to 17-1-1976, and that people be permitted to perform their prayers in the premises during this period. However, on an application being filed by respondent No, 2, Saleh Bin Ali, the orders of 2-1-1976, were recalled and it was ordered that the Mosque/imambara may be sealed and that the S. H. O. , Korangi, should see that it is done tactfully and properly. This direction of the High Court was communicated on the same day to S. H. O. Nabi Jan Beg by the Assistant Advocate-General, on the telephone as well as in writing, and thereupon the S. H. O. Sealed the premises in question at about 2-50 p.m. The S. H. O. Communicated these directions to the S. D. M. Mr. Ghulam Abbas Soomro, who came to the police station at about 9 p.m.
And finding that no copy of the order of the High Court had been received, directed the S. H. O. In writing to unseal the premises. According to the S. H. O. He was reluctant to do so, in view of the communication which he had received from the Assistant Advocate-General, but in view of the written orders of the S. D. M. He complied with the same and unsealed the premises. On the following day, that is 8-1-1976, the S. D. M. Received the copy of the orders passed by the High Court on 7-1-1976, and according to him, he immediately proceeded to the disputed premises and had the same re-sealed.
3. The allegations against the S. D. M. And S. H. O. Are that knowing about the orders passed by the High Court on 7-1-1976, that the premises be sealed, they had got the premises unsealed. Against respondents Iqbal Hussain, Irtaza Hussain, Khwaja Amir Hassan and Tahir Hussain, the allegation is that they had offered prayers in the imambara on 7th and 8th of January 1976, when the imambara is alleged to have been unauthorisedly unsealed.
4. So far as Mr. Mukhtar Hussain Zaidi, the D. S. P., is concerned, the only evidence against him is that he was at the Korangi Police Station when S. H. O. Nabi Jan Beg came back after unsealing the premises and communicated this information to the S. D. M. Mr. Ghulam Abbas Soomro. There is nothing to show that Mr. Zaidi took any part in the unsealing of the premises or acted in any other manner whereby he disobeyed the orders passed by this Court on 7-1-1976, that the premises be re-sealed.
5. So far as respondents S. Iqbal Hassan, Khwaja Amir Hassan and Tahir Hussain are concerned, the only allegation against them is that they are supposed to have offered prayers in the imambara on 7th and 8th January 1976, after the High Court had passed orders that the premises be re-sealed.
These three respondents, however, in their affidavits have denied having offered prayers in the premises during this period. No witness has been cited nor has any other evidence been led to show that these 3 respondents did offer prayers in the imambara at any time after the order for re- sealing of the premises was passed. There is thus no tangible evidence to show that they have disobeyed the orders passed by the High Court on 7-1-1976 for the re-sealing of the premises, which clearly implied that no prayers could be offered therein.
6. So far as respondent Irteza Hussain is concerned, he is said to have got an advertisement issued in the daily "Jang' of 9-1-1976 and some other papers, that there would be a majlis and religious ceremonies in the disputed imambara. There is no evidence to show that this advertisement was actually sent to the daily ', fang' after the order of re-sealing of the premises. The mere fact that the advertisement appeared in the daily ',Tang' of 9-1-1976 does not necessarily lead to the presumption that it was sent to the newspaper on either 8th or 9th or even 7th of January 1976.
According to the affidavit filed by Irteza Hussain, which has not been controverted, he had sent this advertisement on the 6th of January, when the premises were unsealed on account of this Court's order of 2-1-1976.
7. There remains the case in respect of the S. D. M. Mr. Soomro and the S. H. O. Mirza Nabi Jan Beg, both of whom have been examined by the Court today. Mr. Nabi Jan Beg has testified that on receipt of a telephonic message from the learned Assistant Advocate-General on 7-1-1976, which was followed by a written letter from him, to the effect that the High Court had ordered the premises in dispute to be resealed, he went to the disputed premises to have them re-sealed. He has further deposed that he brought the matter to the notice of the S. D. M., Mr. Ghulam Abbas Soomro, who came to the police station at about 9 p.m. And despite the fact that he informed him of the orders of the High Court, which had been communicated to him through the learned Assistant Advocate-General, the S. D. M. Insisted that the orders of the High Court on 2-1-1976 should be maintained, and ordered him in writing to unseal the disputed premises, whereupon he again went to the disputed premises and unlocked the imambara at about 9 p.m.
8. The S. D. M., Mr. Ghulam Abbas Soomro, on the other hand, has testified that on 3-1-1976, which was just two days after he took over as S. D. M., Malir, he received a copy of the order of the High Court, dated 2-1-1976, that the premises in dispute, which had been ordered to be sealed by the S. D. M. (Central), be unsealed, whereupon he arranged for the unsealing of the premises through the police. He has further testified that on 7-1-1976, at evening time, on being informed on telephone by S. H. O. Nabi Jan Beg that he had unsealed the -premises in view of the orders of the High Court communicated to him through the Assistant Advocate-General, he went to the police station and - since no copy of the order of the High Court was shown to him, he ordered the S. H. O. In writing to unseal the premises, and the S. H. O. Pursuant to these orders of his unsealed the premises. Mr. Soomro has denied that he was shown the letter of the learned Assistant Advocate-General communicating the orders of the High Court and stated that at no time it was made clear to him that the High Court in fact had passed such orders. His stand is that in view of the orders of the High Court of 2-1-1976, he could not permit the sealing of the disputed premises until and unless fresh orders from the High Court were properly communicated to him. Mr. Soomro has further stated that when on 8-1-1976 at about 12 noon, he received a copy of the order of the High Court, dated 7-1-1976, he at once went to the disputed premises and had the same re-sealed.
9. Although the orders of re-sealing of the premises were passed by the High Court on 7-1-1976, there appears to be a certain amount of controversy as to the exact time when these orders were signed by the learned Judge. Mr. S. M. A. Mahmood, the learned counsel for the applicants, has conceded that the order of re-sealing was dictated by the learned Judge at about 1-30 p.m. He is unable to say when exactly it was signed. There is no evidence before me as to the time when it was actually signed. All that we know is that the Assistant Advocate-General had communicated the orders of the High Court to the S. H. O. Mirza Nabi Jan Beg, on telephone at about 1-50 p.m. And later on in writing at about 2-50 p.m. The actual copy of the orders, however, was received by Mr. Ghulam Abbas Soomro on the following day, at about 12 noon. There is also a controversy as to whether the letter written by the learned Assistant Advocate-General to S. H. O. Nabi Jan Beg and the record of the telephonic message received by the S. H. O. From the Assistant Advocate-General were actually shown to Mr. Ghulam Abbas Soomro. While Mirza Nabi Jan Beg asserts that this was done, Mr. Soomro has vehemently denied this. There is thus the word of the S. H. O. Against the word of the S. D. M. It is difficult in the circumstances to come to any conclusive finding whether in fact the letter of the Assistant Advocate-General or the Station Diary containing the record of the message received from the Assistant Advocate-General were in fact shown to Mr. Ghulam Abbas Soomro. The circumstances, in my mind, seem to suggest that the letter and the record apparently were not shown to Mr. Ghulam Abbas Soomro, for there was no reason for Mr. Soomro, if in fact this had been done, to have not only directed the S. H. O. To unseal the premises but also given him a written order to that effect. Furthermore, when in fact Mr. Soomro received a copy of the orders of the High Court on 8-1-1976, he complied with that order with alacrity. This would show that Mr. Soomro all along was anxious to obey the orders of the High Court and at no time he had any intention of disobeying the same. It may have been appropriate for Mr. Ghulam Abbas Soomro, when he found that the S. H. O. Had sealed the premises and was insisting that this had been done pursuant to the orders of the High Court, to communicate with the Assistant Advocate-General and ascertain the true position, but mere failure on the part of Mr. Soomro so to do would not bring him within the ambit of the contempt law. As I assess the evidence of Mr. Soomro, who is a young officer and had taken over as S. D. M. Only a few days before the incident which has given rise to the present application, he was anxious to ensure obedience to the orders of the High Court. Perhaps he was under the impression that the orders of the High Court on 2-1-1976 were still in force and he may not have realised that the High Court had re-called those orders till he received a copy of the latter orders on 8-1-1976. I am, therefore, of the opinion that so far as Mr. Ghulam Abbas Soomro is concerned, there is no material on the basis of which I can come to the conclusion that he flouted or disobeyed lawful orders of the High Court which were properly brought to his notice.
10. So far as S. H. O. Mirza Nabi Jan Beg is concerned, it is an admitted position that on receipt of the communication from the learned Assistant Advocate-General about the passing of fresh orders by the High Court, he at once sealed the premises, and he only unsealed them, and that too with great reluctance, when the S. D. M. Mr. Soomro, insisted that they should be unsealed and gave him an order in writing to that effect. The S. H. O. In fact was in a very difficult position. On the one hand there was a communication from the Assistant Advocate-General intimating that the High Court had passed an order for the sealing of the premises and on the other hand he had received an order from the Magistrate of the jurisdiction directing that the premises be unsealed. Since he did not have a copy of the order of the High Court he was not in a position to satisfy the S. D. M. That in fact such an order had been passed. Perhaps, the right course for him would have been to have communicated with the Assistant Advocate-General or the Advocate-General in the presence of the S. D. M. And had the matter clarified, but this he failed to do. If this had been done, all parties would have come to know about the passing of the orders of the High Court. However, since this was not done, there was a confusion in the mind of the S. D. M. As to whether any such orders to this effect had been passed. Furthermore, as I have already pointed out, it is not clear at what time the learned Judge signed the orders of 7-1-1976. A person can be held guilty of contempt only if he disobeys a lawful order of the High Court. The orders of the High Court have to be made in writing and signed by the Judge. Since the exact time of the signing of these orders has not been established, the S. H. O. Cannot be considered to have acted in contempt, in unsealing the premises under the orders of the S. D. M. Perhaps, he was persuaded by the S. D. M. In believing that such orders had in fact not been passed.
11. In the circumstances, discussed above, I am of the view that there has been no deliberate or intentional disobedience of the orders of the High Court by any of the respondents and thus they cannot be held in contempt. I would accordingly discharge the notice issued against the respondents and dismiss this application with no order as to costs.