JAVID DASTGIR MIRZA Versus STATE

1. DOBAS PATEL, J. ‑This is an appeal against a judgment of a Division Bench of the Lahore High Court, dated 2‑8‑1974, by which the learned Judges of the Lahore High Court convicted the appellant for contempt of Court.

2. Once Iftikhar Ali was in possession of a shop on Circular R‑ad, Lahore, grad as according to the Lahore Improvement Trust, this shop was an unlawful encroachment, it had issued a notice to the said Iftikhar Ali to show cause why t1ris shop should not be demolished. Therefore, on 19‑11‑19,4, Iftikhar Ali filed a suit in the District Court, Lahore against the Lahore Improvement Trust in which he sought a permanent injunction to restrain the Lahore Improvement Trust from demolishing the shop in his possession. Together with the suit, he also prayed for an interim injunction, which was granted by the Civil Judge. Iftikhar Ali then learnt that despise the interim injunction obtained by him, the Lahore Improvement Trust had approached the Deputy Commissioner, Lahore for the demolition of his shop by force, therefore, he filed another suit in the District Court, impleading this time Provincial Government through the Collector and the Deputy Commissioner, Lahore as defendants. The relief sought in the suit was the saws as in his earlier suit, and together with the suit he had sought an interim injunction to restrain the Deputy Commissioner from demolishing his shop. The Court granted an ad Interim injunction as prayed in his favour on 21‑1‑1974. Thereafter the case appears to have been adjourned because neither the Provincial Government nor the Deputy Commissioner put in the‑ appea rance, and the result was that the Court extended the ad interim injunction granted by it until 26‑2‑1974. This was the time when the Islamic Summit was being held in Lahore, and as Iftikhar Ali was apprehensive that his shop would be demolished, despite the stay orders obtained by him from the District Court, he had addressed various authorities "praying for intervention to stop demolition of his shop." An application in this respect was also forwarded to the Deputy Commissioner and to the Central Minister of Health, who directed the Chairman of the Lahore Improvement Trust to "see that the stay order of the Court is honoured." However, despite all these efforts, on 8.2‑1974, the appellant came to Iftikhar Ali's shop with some police officials and informed him that "whatever may come he would demolish the shop c n the 9th of February 1974". The appellant carne to Iftikhar Ali's shop the next day and it was demolished on his orders. In these circum stances, Iftikhar Ali filed an application for contempt in the Lahore High Court against the appellant and others. As we are concerned in this appeal only with the appellant, it is sufficient to state that the appellant had first contested the contempt application but we submitted an apology. The application was heard by a Division Bench of the Lahore High Court and the learned Judges held that the appellant had demolished Iftikhar Ales shop with full knowledge of the stay order granted by the Civil Judge rest raining the Government from demolishing Iftikhar Ali's shop. However, as the appellant had submitted an apology Sardar Iqbal, C. J. (as he then was), who pronounced the judgment of the Division Bench, observed "On the above view of the matter, we hold Javid Dastgir Mirza, Magistrate of the First Class, Lahore guilty of contempt of Court and would convict him accordingly. The next question is as to what should be the punishment. Keeping in view the apology tendered by the respondent (though not at the earliest possible opportunity and also the fact that he has assured this Court that he had no malice in fact and that he shall be careful in future, we take lenient view and would sentence him till the rising of the Court, with a fine of Rupees one thousand (Rs. 1,000) in default of payment of which he shall suffer simple imprisonment for one month" Hence this appeal.

3. As in the High Court Mr. Shaukat Ali submitted that as the appellant had submitted an unconditional apology it should have been accepted by the High Court and in support of the submission he relied on this Court's judgment in Fakhre Alam v. The State (PLD1973SC 525). Now, t e facts in this case were that the Peshawar High Court bad taken exception to some observations made about the Chief Justice of the High Court in an article in a newspaper and with regard to the question whether this article amounted to contempt, this Court observed that "the allegations even taken at their face value were not such as could be said to reflect on the suitability of the learned chief Justice hold his high office . . . . We are accordingly firmly of the view that the High Court misdirected itself in taking these allegations in such a bad light to consider that, if true, they would disentitle the Chief Justice from holding his office . The judgment is distinguishable on the facts and does not help the appellant's case at all because as pointed by the Chief Justice in the judgment under appeal, the contempt application against the appellant bad come up for bearing In February, 1974 and he had been directed to file a reply. He filed a reply in which he admitted having flouted the civil Court's order but as observed in the judgment "there was in it not one word of remorse, contrition or apology". The case was then adjourned at least three times, but the appellant did not submit an apology. He finally submitted an apology only on the 1st April. In these circumstances, the learned Judges of the High Court rightly held that the unconditional apology submitted by the appellant was not sufficient because it was a very belated apology No exception can therefore be taken to the view of the learned Judges.

4. Mr. Shaukat Ali then pointed out that the appellant was confronted with a very difficult situation because of the Islamic Summit, and because he was acting under the orders of the Deputy Commissioner. It is possible that the appellant had been placed in a very difficult situation by the stay order granted by the Court, but if so, as observed by the High Court, he should have applied "to the Courts concerned for the vacation" of the stay order, and he did not attempt to do so, nor did he draw the Deputy Commissioner's attention to the stay order granted by the civil Courts.

5. Mr. Shaukat Ali then repeated another strange argument which had' been repelled by the High Court. This argument was that the Deputy Commissioner had ordered the appellant to demolish the shop in dispute, therefore, the appellant was under the impression that the order of the Deputy Commissioner was to be obeyed in preference to that of the civil Court. But in view of the civil Court's order, the Deputy Commissioner' order had become unlawful and as pointed out by the learned Judges of the High Court the appellant should have known as a Magistrate that h was not required to obey unlawful orders. Further, this difficulty was self‑induced difficulty because all that the appellant had to do was to draw the Deputy Commissioner's attention to the stay order given by the Courts. In order to overcome this difficulty, Mr. shaukat Ali submitted that the appellant was protected by sections 76 an3 79 of the Pakistan Penal Code. According to section 76 "nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be bound by law to do it". Mr. Shaukat Ali's submission was that the appellant had committed a mistake of fact in flouting the civil Court's orders because of the Deputy Commissioner's order. The argument is fallacious because the law imposed an obliga tion on the appellant to obey the civil Court's orders therefore, in flouting that order he did not commit a mistake of fact but a mistake of law, therefore, he cannot claim the benefit of this section. And as section 79, P. P. C. also relates to a mistake of fact, it is of no help to the appellant's case.

6. Finally, Mr. Shaukat Ali submitted that if the fine imposed on the appellant was not set aside, he could be dismissed from service. As the appellant had committed contempt he bad made himself liable to punishment for contempt and the consequences of that punishment would be no ground whatsoever for allowing the appeal and the plea is really in the nature of o a plea for compassion or mercy which should have been advanced before the High Court. It would not be proper for us to grant relief on this ground but it would be open to the appellant to approach the High Court with this plea. With this observation the appeal is dismissed

7. Appeal dismissed.