1. WAHIDUDDIN AHMAD, J.-This appeal is under Article 58(2)(c) of the abrogated Constitution of Islamic Republic of Pakistan, 1962 against the order of a learned Single Judge of the West Pakistan High Court, Lahore, in Criminal Original No. 133 of 1965. By this judgment, the appellants were held guilty of contempt of Court and were sentenced to a fine of Rs. 250 each. In default of payment of fine they were to suffer simple imprisonment for one month each.
2. Briefly, the facts leading to this appeal are that 17 acres of agricultural land situated in the revenue estate of Chak Gopiwala, Burj Kura Mal, Tehsil Chiniot, District Jhang, belonging to one Ganga Ram, son of Nanak Chand, since evacuee, was mortgaged with the father of one Dost Muhammad under a mortgage deed dated the 30th September 1943, for a consideration of Rs. 21,000. On the death of Dost Muhammad's father, a mutation of inheri--tance was sanctioned in his favour in 1955. This land was allotted to appellants Sajjad Hussain and Mst. Mehdi Sultan Begum on the 6th May 1960, by the Rehabilitation authorities. They obtained symbolical possession of the property in dispute on the 20th March 1961 from the tenants of the property namely, Shera, Khaira, Lala, Mali, Noor, Zahoor and Muhammad through the Revenue authorities. They further obtained an ejectment order against the tenants on the 15th December 1961. Thereupon, Haji Dost Muhammad filed Writ Petition No. 172-R of 1962 under clause 2(4) of the Laws (Continuance in Force) Order, 1958, with a prayer that the allotment in favour of the appellants Nos. 1 and 2 be quashed and a writ of mandamus be issued not to give effect to the orders of allotment or disturb his possession as mortgagee of the land. During the pendency of the above writ petition he moved an application under section 151, C.
3. P. C. For the grant of Stay Order as he apprehended that he might be dispossessed. On the 31st January 1962, an order for maintaining status quo was passed in Civil Miscellaneous No. 428 of 1962. This led the appellants Nos. 1 and 2 to file an application for vacating the stay order on the ground that they had already obtained possession of the property in dispute. They alleged that Haji Dost Muhammad was not in possession of the land and it was, in fact, in possession of the tenants who had been paying batai to Sajjad Hussain. On this, the High Court clarified that whoever had been getting a share of the produce before the stay order was made would continue to do so. Haji Dost Muhammad also filed a Miscellaneous application for clarification of the order of the status quo on the 30th April 1962. The High Court observed that there was no need to clarify it further as it meant that the status quo as existed on the date of order had to con--tinue and any violation of it will be punishable in contempt. The writ petition of Haji Dost Muhammad was accepted on the 6th November 1962, and the following declaration was granted to him:---- "The petitioners cannot be dispossessed of the land without payment of the mortgage money due under mortgage but the allotment of the land to displaced persons (i. e. The appellants), is not invalid."
4. After the decision of the writ petition, appellants Sajjad Hussain and Mst. Mehdi Sultan Begum moved an application for execution of ejectment order dated the 15th December 1961, as the tenants in occupation of the property in dispute did not deliver vacant possession of the land after the cultivation of kharif, 1962. The Assistant Collector declined to order ejectment of the tenants by his order dated the 15th June 1963. This order was challenged in appeal before the Collector of Jhang which was accepted on the 29th December 1964, on the ground that the appellants had been getting batai of the land in dispute after the attornment of the tenants before the date of the status quo order was made by the High Court. In pursuance of this order, the tenants were ejected on the 21st May 1965.
5. This led Haji Dost Muhammad to move the above Criminal Original application under Article 123 of the late Constitution for contempt of Court against the appellants, Mr. Ijaz Ahmad, Assistant Collector, the Girdawar and the Patwari of the Circle, alleging that they had deliberately disobeyed the order of the High Court passed in the above writ petition decided on the 6th November 1962. A learned Single Judge of the High Court, by order dated the 16th March 1967, discharged the notice against Mr. Ijaz Ahmad, Assistant Collector on account of his death. Notice was also discharged against the Girdawer and Patwari. Appellants Nos. 1 and 2 and their Attorney, Syed Asghar Abbas, appellant No. 3, were convicted and sentenced as mentioned above for committing contempt of Court. This order is being challenged in this appeal before us.
6. The sole question for consideration in this appeal is whether the appellants have deliberately disobeyed the order of the High Court dated the 6th November 1967. After hearing the learned counsel for the parties we are satisfied that on the facts of the present case it cannot be said that the appellants have flouted the said order of the High Court. There is ample evidence on the record to show that the appellants have taken the symbolic posses--sion of the property in dispute on the 20th March 1961, through the Revenue authorities. This fact is borne out by Roznamcha Waqiati of that date. Even the High Court has accepted this position. In this connection it observed as under :- "Sher Muhammad and other persons, as already mentioned, were actually cultivating the land in dispute when symbolic possession of the land were delivered to respondents Nos. 1 and 2 through respondent No. 3 on the 20th March 1961."
7. It was on this basis that the appellants claimed that Sher Muhammad and others have attorned to them and began to give them the produce of the land. The order dated the 15th December 1961, in the paper-book, further shows that the tenants in occupation of the property in dispute had also agreed to vacate the land in dispute after fasal kharif 1962. It is, therefore, quite clear that the appellants had obtained the possession of the property in dispute before the status quo order was passed by the High Court on the 31st January 1962. It will be further noticed that the High Court has not even given a definite finding as to which of the two parties were getting the produce of the land. This is clear from the following observation of the High Court :- "The application was accepted in view of the statements of the tenants made on the 15th December 1961, and an order of their ejectment was made, though this order had to take effect from the 15th June 1962. Therefore, I am inclined to hold that the assertion of the respondents that they were being given produce of the land by the tenants stands unproved, and that it is probable that Shera and others were giving produce to the petitioners. They, of course, conceded that they were tenants of the respondents Nos. 1 and 2 but they had to concede this position because respondents Nos. 1 and 2 were allottees of the land and by operation of law they had become tenants under them. This fact would not prove that they were giving produce of the land to respondents Nos. 1 and 2, when they had themselves alleged in the application for ejectment that they had not done so."
8. Another circumstance which goes in favour of the appellants is that when the status quo order was passed, they had moved an application in the High Court in which they had clearly asserted that Haji Dost Muhammad had been dispossessed by them from the property in dispute. The appellants' case, therefore, that: Haji Dost Muhammad had been dispossessed is not an after-- thought or unfounded allegation.
9. Having regard to the facts and circumstances of the present case we are satisfied that Haji Dost Muhammad had been dispossessed from the property in dispute on the 20th March 1961, when symbolic possession was delivered of the property in dispute to the appellants. In view of this, the allegation against the appellants that they had deliberately disobeyed the order of the High Court dated the 6th November 1962, cannot be sustained. We would, therefore, allow the appeal and set aside the conviction of the appellants.