' This petition seeks contempt proceedings pending in the Court of learned District Judge Islamabad to be declared without lawful authority and of no legal consequence.
2. Precisely, relevant facts are that respondent No.2 successfully obtained a decree for an amount of Rs.60,03,003 dated 13-12-2003 against the respondents Nos.3 to 5 and initiated execution proceedings praying recovery of decretal amount byarrest of the judgment-debtors. Respondent No.3 is assessee-of-Income Tax in the Companies Circle 12 of Peshawar and its some amount of refund was available in pursuance to assessment years 2000-2001, 2001-2002 and 2002-2003.
Respondent No.1 issued_ warrants of attachment of an amount of Rs.40,82,889 belonging to respondent No.3, available with the Circle 12 above mentioned. In response to attachment order a reference is said to have remitted in terms of section 170 of the Income Tax Ordinance, 2000 and under its garb, attachment order was not complied resulting in second warrant of attachment dated 20-4-2004. This time Taxation Officer, Companies Circle 12 on same information, initiated proceedings against respondent No.3 for concealment of huge income of the respondent. On the basis of these prodeedings petitioner accorded approval for withholding refund of tax to respondent No.3 till the decision of the reference sent by the taxation Officer Companies Circle 12 Peshawar.
3. The Taxation Officer issued a show-cause notice dated 23-4-2004 under section 122 of the Income Tax'Ordinance to respondent No.2. Respondent No.1 again issued a letter, dated 30-4-2004 to the Commissioner of Income Tax that the amount attached be remitted without further delay.
The repeated .Directions by the learned District Judge were not complied and instead the learned counsel on behalf of the petitioner appeared before him on 12-5-2004 and requested for adjournment of the case for filing reply to the proceedings of attachment. The learned District Judge issued a show-cause notice to the Commissioner of Income Tax as to why proceedings for defying the order of the Court may not be initiated against him, who filed reply to the show-cause notice dated 12-5-2004 and also moved an objection petition under Order XXI, rule 58, C.P.C. On behalf of the Taxation Officer. The learned District Judge directed the petitioner to appear in person and to explain as to why he has disobeyed the order of the Court and as to why proceedings for defying the Court order be not initiated against him. The petitioner did not appear, consequent to which proceedings complained were initiated.
4. It is contended that respondent No.1 is not equipped with any jurisdiction to initiate or proceed with the contempt proceedings under the Contempt of Court Ordinance, 2003 and thus, the entire exercise in this behalf is illegal. It is also submitted that respondent No.1 is acting in haste, as he under law is bound to decide the objection petition filed before him. According to the learned counsel for the petitioner initiation of contempt proceedings before considering reply to the show cause filed by the petitioner are absolutely unwarranted and unlawful. He further elaborated his arguments by saying that neither the notice nor the order, contained any provisions of law under which those have been issued and this failure negatively reflects on the proceedings pending before respondent No.
1. According to the learned counsel for the petitioner, the assessee (respondent No.3) concealed his income against whom lawful proceedings having been initiated and the refund of the tax amount has been reserved in adjacent tax payable by the assessee and thus the same is not available for satisfaction of the decree against the said respondent. It was also urged that the petitioner has no interest in the matter and he was proceeding according to the provisions of law and that he has also been retired from the service and cannot be punished for any lapse which does not fall on his sleeve. In the last the learned counsel prayed that petitioner may be exempted from appearance before respondent No.1.
5. I have anxiously considered the arguments of the learned counsel for the petitioner and have examined the record appended herewith. Respondent No.1 has not mentioned anywhere that proceedings against the petitioner are being taken under the provisions of the Contempt of Court Ordinance 2003, hence, it is mere a presumption of the petitioner that he is proceeding under this provisions of law. Though the Courts are equipped with ample power to have compliance of their order and I need not refer to those yet all the assertions raised before this Courtrevolve around factual dispute and Fan be raised before respondent No.1 which, I am sure, shall be adverta to, before taking any punitive action against the petitioner. Since, respondent No.1 has not passed any final order, I do not want to pre-empt proceedings pending there.
6. The petitioner has not produced any order whereby contempt proceedings were initiated against him and the last order produced by him is dated 25-5-2004, whereby only show-cause notice was ordered to be repeated to the petitioner calling upon for personal hearing on 12-6-2004 for explanation as to why he disobeyed the order of the Court. The Honotirable Supreme Court has repeatedly mandated that mere issuance of show-cause notice does not confer any right to any addressee to maintain a Constitutional petition and such show-cause notice cannot be adjudged while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. My this view is based on the alighted judgment in the case of Khalid Mahmood Wattoo v.
Government of Punjab and others (1998 SCM R 2280) followed by the judgment in the case of Niaz Ali and others v. Federation of Pakistan and others (2004 M LD 460).
7. Adverting to the request of the learned counsel for the petitioner for grant of exemption for personal appearance of the petitioner before respondent No.1 on account of his joining in the Staff College at Lahore for training, I am not persuaded to grant any such exemption while hearing a petition, which is not maintainable, as noted above, and without being cognizant of the proceeding wherein exemption of appearance is prayed. The Constitutional petition cannot be a substitute of original proceedings as that of an appeal. The petitioner can make such prayer to the Court concerned i.e. The respondent No.1 but without approaching to it, no relief in this behalf can be given to him.
8. For what has been discussed above, I am constrained to hold that this petition is pre-mature and having been filed just after issuance of a show-cause notice, is not maintainable and is accordingly dismissed in limine. Copy Dasti on payment of usual charges as requested.