1. MUHAMMAD HALEEM. J.-This appeal is as of right under Article 185(2) (c) of the Constitution against the judgment dated 7-10-1974 of a learned Single Judge of the Peshawar High Court whereby the appellants were found guilty under section 3 of the Contempt of Courts Act, 1926 and while the first appellant was sentenced to suffer simple imprisonment for three months and to pay a fine of R. 2,000 or in default to suffer one month's simple imprison--ment, the second to undergo simple imprisonment for three months.
2. Consequent upon the judgment in the suit filed by the first appellant for rendition of accounts against the first respondent and the order passed in appeal by the District Judge appointing him as Receiver of Falakshair Cinema, Peshawar Cantt Second Appeal No. 64 of 1973 and F. A. O. No. 1 of 1974 were fled by the first respondent which were disposed of. By a learned Single Judge of the Peshawar High Court by a common order dated 4-4-1974 by which a preliminary decree was made in favour of the first appellant but the order appointing him as Receiver was set aside.
3. Paragraph 4 of the preliminary decree required the trial Court to appoint a Receiver and by order dared 29-5-1974, the Senior Civil Judge. Peshawar appointed Haji Maqsood Ahmad, Advocate as Receiver who took over possession of the Cinema on 17-5 1974, leaving the residential fiat in the possession of the first appellant. The Receiver dispensed with the services of the second appellant on 27-5-1975 who till then was employed as Supervisor. The second appellant, it may here be stated, was acting as an Attorney of the first appellant but his power to act as such was revoked can 20-12-1973. The Receiver appointed Iqbal Hussain as Manager of the Cinema on 27-5-1974. It is the case of the first appellant that since the Receiver did not attended to his work with effect from 1-6-1974, he requested him to complete his report within the prescribed time i.e., on or before the 15th June, 1974 but it had no effect. Consequently, on 10-6-1974 the first appellant filed an application before the Senior Civil Judge stating therein that the Receiver was not attending to his work and that he should be directed to complete the taking of accounts between the parties and submit his report on or before the 15th June, 1974. During the pendency of this application, the Receiver on 11-6-1974, shifted his office from the Cinema to flat No. 2 in Hafizjee Building, Namak Mandi, Peshawar and instructed the Manager to seek instructions from him from that office. On 15T6-1974 the Receiver submitted an application to the senior Civil Judge seeking extension of time for submitting the report on the ground that the parties had riot submitted to him the accounts. He also alleged therein that he was forcibly dispossessed from the Cinema on 12-6-1964 and that he should be put in possession. This application was sent to the High Court and a learned Single Judge on 24-6-1974 ordered that it be filed. However, the learned Senior Civil Judge held an enquiry and by order dated 4-7-1974, directed the first appellant to hand over the possession of the Cinema to the Receiver on or before the 8th July, 1974 failing which he would be forcibly evicted from the premises and dealt with in accordance with law. The first appellant filed an appeal and the learned District Judge, Peshawar by order dated 13-7-1974, directed him to hand over the possession of the Cinema to the Receiver on or before the 5th September, 1974. This order was also not complied with and eventually the learned Senior Civil Judge examined the Receiver on 13-9- 1974 and issued a warrant for possession which was executed on 22-10-1974 and possession was taken from the Manager Iqbal Hussain. The first respondent, thereupon fled a petition in the Peshawar High Court under section 3 of the Contempt of Courts Act, 1926 against the appellants.
4. The learned Senior Civil Judge, however, did not allow the Receiver to be cross-examined in the course of the enquiry held eon 13-9-1974 but later in the High Court during the hearing of the Contempt Petition his statement was recorded and he was cross-examined.
5. The learned Single Judge relying on the following extract from the Receiver's evidence held that there was no reason to disbelieve the Receiver who being an Advocate of standing was not expected to make a false report about his dispossession "I also informed Iqbal Hussain that if I do not visit the cinema, he should come to my office at Namak Mandi. I went to the Cinema on the 12th, 13th and 14th of June, 1974. But I was not allowed the entry. My office was also not opened. I tried my best to settle the matter amicably but Mian Qadiruddin and Muhammad Arif, respondents, would not agree. They refused entrance to me and "all the staff was at their back."
6. The learned counsel fir the appellants laid emphasis on the fact that it was Iqbal Hussain who was still the Manager and from whom possession was taken by the Receiver on 22-10-1974 and for this he relied en the report of the Civil Nazir. He also laid emphasis on the fact that even though in his statement before the Civil Judge the Receiver stated that possession was with the first appellant who was running the Cinema with the help of the second appellant and Iqbal Hussain yet he did not terminate his services as Manager in spite of his alleged collusion with the appellants, so much so that be continued to remain in possession till the 22nd October, 1974. The assertion of dispossession was, therefore, made as a counterblast to the allegations made by the first appellant in his application dated 10-6-1974 against the Receiver. As for the second appellant, it was contenders that his power of attorney was revoked as far back as 20-12-1973 and that thereafter he was employed as a Supervisor but his services were dispensed with on 22-5-1975 on the pretext that he was still acting as Attorney of the first appellant. Accordingly it was incorrectly stated in the petition that the second appellant was still an Attorney of the first appellant and bad on his behalf taken possession of the Cinema on 12-6-1974.
7. The learned counsel next referred to the application of Iqbal Hussain dated 19-9-1974 in which he stated that he was taking instructions from the Receiver and acting on it and that on 17-9-1974 a Bailiff had come to take possession of the Cinema but he declined to hand over its possession as he was still the representative of the Receiver. He, however, stated that he told the bailiff that if he were to bring the Receiver along with him on the next day, he would hand over its possession.
8. However, on the next day be went in the evening to the office of the Receiver who told him that he - would take possession on fresh instructions being issued by the Court and lastly he prayed that the Receiver be directed to take possession from him. The learned counsel finally submitted that no case of dispossession was made out by the Receiver.
9. Examining the statement of the Receiver we find that the sum and the substance of the allegation against the appellants is that Iqbal Hus88ln had refused to obey his authority and that 'virtually the possession is with Mian Qadeeruddin, Muhammad Arif and lqbal Hussain.' There is no dispute that the first appellant is also residing in the residential portion of the Cinema and his presence therefore on the premixes cannot lead to the inference that be was asserting his possession.
10. Equally it is not disputed that possession was taken from Iqbal Hussain. As to bow the Receiver was dispossessed on 12-6-1974, he did not state in his examination-in-chief but in cross-examination he asserted that he went to the Cinema on the 12th, 13th and 14th of June, 1974 but he was not allowed to enter the premises. He, however, tried to settle the matter amicably but the appellants did not agree. This was not the allegation is his earlier statement before the Civil Judge nor in his examination-in-chief and it appears to us that this allegation was added to retake out a case of dispossession. The case seems to be that the appellants in collusion with Iqbal Hussain had dispossessed him on 12-6-1914 but it was conceded at the Bar that there vas no evidence of collusion.
11. It was his bald statement which was construed by the learned Single Judge to establish dispossession without sifting the facts. Therefore, for the reason given above, we are of the view that the statement of the Receiver fails to establish that he was refused entry en the premises by the appellants, and since the proceedings are of a quasi-criminal nature, all doubts have to be excluded before convection is recorded which is trot the case here. In this, connection it would be pertinent to refer to a passage at page 7 of Oswald's Contempt of Court (Third Edition) -which runs as under :- "The summary jurisdiction of the Courts a jurisdiction to be exercised with scrupulous care" to be exercised only when the case is clear and beyond reasonable doubt ; because, if it is nest a case beyond reason--able doubt, the Courts will and ought to leave the Attorney-General to proceed by criminal information."
12. Accordingly, the appeal is allowed, the order of the High Court is set aside and the appellants are acquitted. The fine, if paid, should be remitted to the first appellant.