' BASHARAT AHMAD SHAIKH, J.---In this case contempt of Court proceedings were initiated on the application of Muhammad Shafiat Khan who laid down information in the Court on 12-11-1998 that Bostan Khan son of Fatoo and his son Abdul Hamid as well as Syed Riaz-ul-Hassan, Girdawar, had "intentionally disregarded, disobeyed and flouted" the judgment of this Court pronounced on 24th November, 1982. The allegation of disobedience will be clear after stating the history of the case.
2. Accused-respondent No,1, Bostan Khan, and 3 others filed civil suit against petitioner Muhammad Shafiat Khan and 9 others in respect of Shamlat land measuring 80 Kanals, 3 Marlas under Survey Nos.1142 and 1142 min in village Sarsawa which, as claimed, was in possession of the petitioner in his own right partly as co-sharer and partly as donee from Musa Khan, another co-sharer. The suit was dismissed on 10th April, 1964 and a declaration was made that the suit land was in possession of petitioner Muhammad Shafiat Khan. Appeals filed before the Additional District Judge Kotli and subsequently before the High Court were dismissed. Bostan Khan and others brought appeal before this Court which was also dismissed on 24th November, 1982. This Court upheld the finding about possession mentioned above. After recording the finding about possession, this Court observed as follows:-- "10. Before parting with the judgment it may be stated here that the suit land is open to partition between the co-owners of the village. Musa Khan, respondent, who executed gift-deed in favour of Shafiat Khan, is entitled to transfer 'Shamlat Deh' falling to his share. The gift-deed shall be operative to the extent of his share Shafiat Khan, respondent, who claimed exclusive possession of the suit land, shall be entitled to retain possession of his share in addition to the shares of other respondents who were shown to have surrendered their shares in favour of Shafiat Khan. The appellants are shown to have their shares in 'Shamlat' to the extent of 12 Kanals, 5 Marlas. They are free to seek possession of their shares by seeking partition under law . "
3. It was stated in the contempt application that Bostan Khan did not accept the judgment of this Court as, instead of seeking partition of his share of Shamlat land as laid down in the judgment, involved the petitioner in litigation before the Revenue authorities which is going on uptill filing of the contempt application. On 12th May, 1991 he moved the Collector District Kotli for correction of entries relating to possession by filing an application which was entrusted to the Assistant Collector Kotli. It was dismissed on 19th June, 1993. Then he filed appeal which was also dismissed.
However, Revenue Commissioner in his order, dated 25th September, 1995 directed Tehsildar Kotli to make entries of 'Kharif' 1995 in presence of parties. On.,29th April 1997 the Tehsildar, in compliance of the direction issued by the Revenue Commissioner, visited the spot alongwith Girdawar and Patwari and found that the land in dispute was in possession of petitioner and only three marlas out of it was in possession of respondent Bostan Khan. The respondent again filed appeal which was accepted and the case was remanded to the Tehsildar. The petitioner filed appeal before the Divisional Commissioner which was still pending at the time when the contempt application was moved. Meanwhile another application was moved by respondent No,1 through respondent No,2 to request Tehsildar Kotil for correction of entries of possession in his favour.
Thereupon respondent No,3 Syed Riaz-ul-Hassan Girdawar was directed to visit the spot and decide the question of possession who made an entry in favour of respondent No,l.
4. By stating the above facts it was submitted that respondent No,1 has all along been trying to get entry of possession recorded in his favour which was direct violation of the finding given by this Court. It was submitted that it amounted to contempt of Court.
5. Before initiating proceedings against the respondents they were asked to file parawise comments. They did not comment on any of the averments made in the contempt application but simply filed unconditional apology in the following words,- "(1) That the respondents tender unconditional apology and regret indeed. The reply is supported by an affidavit. Therefore, it is prayed that sincere and unconditional apology may be accepted and the show-cause notice may kindly be discharged."
6. Thereupon we passed the following order,--- "Today objections have been filed on behalf of the respondents tendering unconditional apology.
The question of apology can only be considered if the alleged proceedings before the Revenue Authorities are dropped so as to avoid further perpetuation of disobedience of the judgment of this Court. Parties need time for doing the needful. To come up on 28th June, 1999."
7. On the next date of hearing the respondent did not ensure the dropping of proceedings before the Revenue Authorities. It was therefore, observed in the order passed on 28th June, 1999 that apology could not be accepted in these circumstances. A prima facie case having been made out, the respondents were charge-sheeted and a show-cause notice was issued to them which was accompanied by statement of allegations. In reply to the show cause notice the respondents filed unconditional apology and threw themselves at the mercy of the Court. However respondent No,3 Syed Riaz-ul-Hassan Girdawar also submitted that he visited the spot in compliance of the directions of his superiors. Although the allegations made against them were not denied by the respondents we still decided to record evidence. To prove the contents of the application Muhammad Shafiat Khan appeared as his own witness and exhibited some documents which already form part of the file. Statement of Abdul Hamid respondent No,2 was recorded as his own witness.
8. Facts are clear and simple. This Court upheld the finding that petitioner Muhammad Shafiat Khan was in possession of the suit land. It was also indicated in para. 10 of the judgment reproduced above that respondent Bostan Khan and others could seek possession of their respective shares by seeking partition. However Bostan Khan has all along been trying to prove that he was in possession of the suit land and he has been moving the Revenue Authorities in pursuance of the aforesaid purpose. Details of the litigation is available on the record and is proved by documentary and oral evidence. It is clearly disobedience of the judgment of this Court. The fresh round of litigation initiated by Bostan Khan has now been going on for about 10 years.
Muhammad Shafiat Khan has ultimately initiated the contempt proceedings. All the respondents have tendered unqualified apology but Bostan Khan has not given up litigation which, as stated above, amounts to contempt of this Court. In these circumstances it is not possible to accept the apology tendered by him. He is therefore found guilty of offence under section 45 of the Azad Jammu and Kashmir Interim Constitution Act read with section 4 of the Contempt of Courts Act, 1993.
9. Respondent No. 2 Abdul Hamid is a son of Bostan Khan. He was not a party in the previous litigation. The allegation against him is that he has been representing his father Bostan Khan before the Revenue Officials and Revenue Courts. He is therefore not directly responsible for contempt of Court but is a privy to the offence. Since he has been acting under the parental authority of his father we take a lenient view and accept his unqualified apology. However, if he continues to be associated with the matter in future, action may be necessitated against him if and when brought to our notice.
10. Respondent No, 3 is a Girdawar who has been performing his official functions. It is proved from the record that he recorded an inconsistent entry in 1994 in violation of the findings of this Court but it is rightly argued by Raja Hassan Akthar, his learned counsel, that there is nothing on the record to show that he was aware in 1994 that a decree had been passed by this Court twelve years ago in 1982. Therefore we give him the benefit of doubt and accept his unqualified apology. Notice against him is discharged.
11. This brings us to the question of quantum of sentence. Believing in the rule that conviction in such matters should be tampered by mercy, we take note of the fact that respondent No,1 Bostan Khan is an old man and we take lenient view. We are of the opinion that one month simple imprisonment and a fine of rupees five thousand will be sufficient to meet the ends of justice and we . The fine shall be paid within two weeks failing which Bostan Khan will undergo further simple imprisonment for one month.
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