P L D 1958 (W (PLP)

(1) That the property taken possession of in execution of search warrant may have been in excess of the list of property attached to the application for a search warrant ; and (2) that racks which belonged to A. R. Khokhar and were lying with the Premier Safe Company for painting etc. should be returned to him. I, therefore, passed the following orders :‑ (l) That any property taken possession of in execution of the search warrant which was not entered in the list attached to the application for search warrant should be returned to the person from whose possession it was taken. (2) Iron racks lying in the Premier Safe Company should be deemed to be in the possession of A. R. Khokhar and returned (whether I would have ever passed this part of the order if learned counsel who appeared in that case for Nizam Din had taken me through the record is very doubtful). These orders were passed on the 2nd of July 1957. When the file went back to the learned Magistrate who was trying the case, he forwarded the order of the High Court for compliance to the S. H. O. City Police Station, Gujranwala to whom the original search warrant had been sent for execution (although it had actually been executed by an A. S. 1.). The S. H. O., City Gujranwala, Syed Bunyad Husain, returned a large part of the property that had been recovered. On 20‑9‑57 Nizam Din filed in, present application for contempt of Court against Bunyad Husain, Muhammad Bakhsh, Muhammad Aziz and A. R. Khokhar. The allegations in the petition were that Bunyad Husain respondent had dishonestly and in disobedience of this Court's order delivered property mentioned in the lists to A. R. Khokhar and Muhammad Aziz respondents who are in collusion with Muhammad Bakhsh respondent and had also, under cover of the order of the Court, taken possession of a trunk containing documents of the Premier Safe Company which was lying in the malkhana in order to destroy the records containing evidence which the petitioner wanted to produce in the civil litigation that is pending between him and Muhammad Bakhsh, although the trunk was not covered by the order of the High Court at all. At the time when the petition was filed only a fear was expressed that Bunyad Husain had destroyed the record contained in the trunk as the petitioner had not been able to examine the contents of the trunk. I sent for the trunk on the application of the petitioner and now when the petitioner has examined the trunk he has made serious allegations of destruction of records.

3. As regards the racks to be delivered to A. R. Khokhar, it was contended that the story of any racks ever having been given to the Premier Safe Company was just a concoction ; that the record could easily show that this was so ; and that the order as to return of racks had been fraudulently secured.

4. The respondents denied that the order of the Court had been disobeyed or abused as alleged. The petition being support ed by an affidavit and also lists on the record being prima facie evidence of the facts alleged in the petition, it was the respon dents who commenced production of evidence to support their allegations. Both Bunyad Husain and Muhammad Bakhsh made statements as their own witnesses. They led no further evidence and the petitioner too did not feel the need of leading any oral evidence. The file of the trial Court, however, has been sent for and has been freely used by the parties as evidence. I had made it clear at an early stage of the hearing that the file of the trial Court could be relied upon by the parties and no objection has been taken to this procedure by any party.

5. So far as the securing of an order relating to racks by A. R. Khokhar is concerned, I do not propose to deal with the question whether the order was fraudulently obtained, even though as I have already stated it does appear doubtful whether I would have passed that order had I been properly informed of the record. On going through the record I find that the position of Muhammad Bakhsh and A. K. Khokhar as to those racks has not been consistent. But there is nothing in the prayer clause of the petition with respect to this order and in any case I am not treating this application as a review of my previous order. As regards the 'allegation that my order has been abused by Bunyad Husain who took hold of the trunk and destroyed a part of the record contained in it, I will indicate at the end of the judgment as to the proper proceedings which are to be taken with respect to it. In the present case will deal only with the question whether my order for return of the property has in fact been disobeyed. The questions that will arise are whether Bunyad Husain had not acted in compliance with my order and whether the other respondents can be held guilty of contempt of Court on account of their acceptance of the property which should not have been given to them, or because Bunyad Husain was acting in collusion with them.

6. Before proceeding further I have to dispose of a pre liminary objection raised by Mr. Muhammad Shafi who appeared for Bunyad Husain. Learned counsel contended that the state ment of Bunyad Husain as a witness was inadmissible in evidence. He relied on the proviso to section 5 of the Oaths Act which is reproduced below :‑ "

5. Oaths or affirmations shall be made by the following persons: (a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence ; (b) interpreters of questions put to, and evidence given by, witnesses ; and (c) jurors ; Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 6 shall not apply to such witness, but in any such case the absence of an oath or affirma tion shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. Nothing herein contained shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, or necessary to administer to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties." In support of the proposition that this proviso debarred the Court from administering an oath to the accused and that if oath was administered the record of the statement would be inadmissible, learned counsel relied upon Muhammad Bakhsh v. The State (P L D 1956 S C (Pak.) 420 : P L R 1957 S C 185). The proviso, it will be observed, only says that the section does not make it lawful to administer on oath to an accused person in a proceeding. It might have been possible to argue that the proviso to section 5 did not prohibit the administering of an oath and only did not render it lawful if it was otherwise prohibited. But my Lord the Chief Justice has said in the above mentioned case: "The plain meaning of the provision is that if a person at the time lie make his statement is an accused person, it is illegal for the Court to put him on oath or affirmation and as such the provision must be held to be an express prohibition against the administration of the oath to an accused person." The case also fully supports the contention of learned counsel that it oath has been illegally administered to an accused person, the statement he made cannot be used against him. The only question, therefore, which falls for consideration is whether the proviso to section 5 of the Oaths Act is applicable to a proceed ing for contempt of Court. The proviso applies to an "accused" An a "criminal proceeding," It will not be necessary for me to consider whether the person proceeded against for contempt is an accused person within the meaing of this proviso. I will consider only whether proceedings for contempt are criminal proceedings within the meaning of this section for the decision on that point appears to me to conclude the matter.

7. In order to decide whether these are criminal proceedings, we have to look to the nature of the jurisdiction exercised by a Court while proceeding against a person for contempt and the procedure that is adopted. The jurisdiction of the Courts in pre‑Partition India to take summary proceedings against a person who was in contempt was based as will presently appear on the like jurisdiction of the Courts in England. In England, it has been accepted since long that Courts have inherent jurisdiction to punish summarily contempts of their authority. The inferior Courts can punish only contempt committed in their own presence while superior Courts can punish contempts whether committed in their presence or otherwise. The origin of this jurisdiction in England is obscure but its nature and its basis were fully explained by Wilmot, J. in a well‑known undelivered judgment which has been accepted as good law in England for more than two centuries I reproduce below what Mr. Justice Wilmot said about the nature of the jurisdiction :‑ " The power which the Courts in Westminster Hall have of vindicating their own authority, is coeval with their first founda tion and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for a contempt to the Court, acted in the face of it. And the issuing of attachments by the Supreme Courts of Justice in Westminster Hall, for contempts out of Court, stands upon the same immemorial usage, as supports the whole fabric of the Common Law;" This jurisdiction was exercised for three objects:- (1) Enforcement of orders passed by the Court; (2) punish ing that which was calculated to prejudice a fair trial or a suit or proceeding; (3) punishing that which brought administration of justice into hatred or contempt. There was a classification of contempt into civil contempt and criminal contempt; civil contempt being confined to enforcement of orders of Civil Courts passed in favour of one party against another and criminal contempt referring to all other cases. But the distinction, as observed in Oswald on Contempt at page 32 (910 Edition), does not seem always to have been kept in mind by the Courts and, in any case, is not material for our purpose. Even in the case of criminal contempt, there was no indictment and no trial. The proceedings were summary. Reference to paragraphs Nos. 60, 61, 63 and 64 of Halsbury's Laws of England, Volume 8, 3rd Edition, would show that the procedure adopted was that of a civil proceeding. The Court was moved by an application for committal or attachment. The application was to be supported by an affidavit. A notice was issued by the Court against the respondent calling upon him to show cause why he should not be committed to prison or why his property should riot be attached. The notice was served either personally or by means of substituted service. When the High Courts were created in India they were by their Letters Patent declared Courts of Record and they became invested with the jurisdiction possessed by the superior Courts of Record in England. In pre‑Partition India this jurisdiction was naturally exercised in the same manner as it was by the Courts in England. The procedure was summary. The Court was moved by an affidavit, and a notice to show cause was issued. The respondent was permitted to make an affidavit in support of his own plea. Personal appear ance was not essential and costs could be awarded. Never was the procedure of a trial adopted for a case of contempt and never were the proceedings regarded criminal in the strict sense. In Homi Rusiomji v. Sub‑Inspector Baig (A I R 1944 Lah. 196), it was observed by Harries, C. J. (with whom other members of the Full Bench agreed) that these proceedings, though not criminal, were of a quasi‑criminal nature. In In re Subrohmanyan (A I R 1943 Lah. 329) Munir, J. (now my Lord the Chief Justice of Pakistan) had expressly stated :‑ " While it is true that proceedings for contempt are in the nature of criminal proceedings, it is not quite correct that the position of the alleged contemner is that of an accused person who cannot file an affidavit or make a statement on oath." This observation, coming as it is from such high authority, is almost conclusive of the matter. Their Lordships of the Privy Council too observed in Andre Paul. v. Attorney‑General (AIR 1936 P C 141), that the proceedings in contempt were of a quasi‑criminal nature. I may also refer to Shri Wasudeoraoji Sheorey v. Shri A. D. Mani (A I R 1951 Nag. 26), where it was held that in proceedings for contempt affidavits could be filed by the person proceeded against. Learned counsel for the appellant had relied upon Abdul Hayee Khan v. Crown (P L D 1956 Lah. 424), wherein it had been observed by a Bench of this Court that proceedings in contempt were criminal proceedings "in a broad sense". This judgment instead of supporting learned counsel goes against him, for it clearly implies that such pro ceedings are not criminal in the strict sense of the word. It is not even possible for any person to contend that proceedings in contempt are criminal proceedings in full and strict sense and the only point to consider is whether the proviso to section 5 of the Oaths Act was intended to refer not only to proceedings which are strictly criminal but even to proceedings that are quasi‑criminal. There is no ground for assuming that the proviso to section 5 was intended to cover quasi‑criminal proceedings. The proviso was never regarded in pre‑Partition India as barring the administering of an oath to the person proceeded against in contempt and for about a century affidavits by the respondents have been allowed by the Courts in such proceedings. It is for the first time since the enactment of the Oaths Act that such an objection has been raised. I have little doubt that it is without force.

8. Learned counsel for Bunyad Husain has referred to the fact that in the Contempt of Courts Act the person proceeded against is referrer to as an accused person. I do not attach much importance to this fact. That is only a method of describ ing the person proceeded against. It was not the intention of the Contempt of Courts Act to effect any change in the nature of this jurisdiction or in the procedure adopted for its exercise. It only enabled the High Court to punish contempts of sub ordinate Courts and later by an amendment it limited the period for which imprisonment could be awarded. If the proceedings were not strictly criminal before the Contempt of Courts Act was enacted this Act certainly did not render them such. At the same time, we are not really concerned with the year 1926 when the Contempt of Courts Act was passed but with the year 1873 when the Indian Oaths Act came into existence. If the intention of those who passed the Act in 1873 was not to include proceedings for contempt, a later enactment which does not, in any way, change the nature of the jurisdiction, would not be of any effect.

9. I would hold, therefore, that oath can be administered to the person proceeded against and I would overrule the pre‑liminary objection. Paragraphs 10 to 27 contain an examination and comparison of various items entered in the petitioner's list of property and the list of property delivered in compliance with the High Court order. The Judgment then proceeds :‑

28. There are objections to some other items too but they are comparatively of minor importance and it is not necessary to refer to them. All that has been said above shows that Bunyad Husain had deliberately disobeyed and abused the order of this Court. He should presumably be acting in collusion with Muhammad Bakhsh but there are some facts too, which support this inference. He had secured from the malkhana a trunk containing account books on the basis of my order and the accompanying order of the learned Magistrate, whereas neither my order nor that of the learned Magistrate could possibly justify his taking possession of the trunk. The allegation of the petitioner is that he had taken possession of the trunk in order to tamper with its contents so as to destroy the evidence in favour of the petitioner which the petitioner was to use in the civil suit that is pending between the parties and that he has in fact tampered with the contents. Bunyad Husain when called upon to explain why he took hold of the trunk if neither my order nor that of the learned Magistrate directed him to do so says there was another order of the Magistrate for this purpose but is unable to produce that order and there is no such order on the file. The receipt which he executed for the trunk admittedly refers to the order of this Court and to the accom panying order of the Magistrate and there can be little doubt that the story of another order by the Magistrate is wholly untrue. There is no explanation, therefore, of Bunyad Husain taking possession of the trunk without any order of any Court except that he was acting in collusion with Muhammad Bakhsh. Another circumstance that supports the allegation of collusion is this. Bunyad Husain admits that some of the items in the recovery list were missing at the spot and yet he made no report to the learned Magistrate about it. Out of 15 tons of old iron sheets at the spot there were only 36 maunds so that about 14 tons were missing and these would be of considerable value. Even though this property was already deficient Lit the spot he allowed it to remain with one or other respondents without taking any precautions to see that it was not further diminished. One of the items, that is 25 frames of file cabinet. did not exist at the spot at all. He took no action whatsoever in this matter. To the fact that Bunyad Husain handed over articles recovered from Muhammad Bakhsh to A. R. Khokhar I have already referred and I have stated that there is no explanation whatsoever of this conduct except that he did not deliver these articles to Muhammad Bakhsh because if the articles were delivered to Muhammad Bakhsh, the receiver appointed by the Civil Court would take possession of them.

29. So I find Bunyad Husain guilty of contempt of Court. So far as Muhammad Bakhsh is concerned, it is obvious that it is only in his interest that Bunyad Husain has disobeyed and abused the order of this Court. It is impossible that he should be acting in flagrant disregard of the order of this Court on his own, and such an inference would be possible even without the aid of other circumstances, but I have already referred to other circumstances showing collusion. I find him too guilty of contempt as it is he at whose instance the contempt has been committed.

30. A. R. Khokhar and Muhammad Aziz are guilty of contempt because they were presumably aware of the contents of the lists filed by the complainant and the recovery list. What is contained in the lists had been the subject of discussion in the High Court as well as in the trial Court. For a considerable time the parties had been fighting this case strenuously. These respondents had taken the plea before me that what was recovered in execution of the search warrant exceeded that which was entered in the list filed by the petitioner and it was in acceptance of that plea that I had passed the order for return of the articles which were not mentioned in the petitioner's list. In fact it is not even suggested in argument that the contents of the lists were not known to them. So far as A. R. Khokhar is concerned he is a party to the collusion between Muhammad Bakhsh and Bunyad Husain for he has received the articles other than parts of racks only to prevent those articles from being taken possession of by the receiver. So far as Muhammad Aziz is concerned, learned counsel who appears for him has taken up a strange position. He says his client is not guilty as nothing was handed over to him at all. He never took up this plea in his written statement. He never filed an affidavit to say that the articles had not in fact been handed over to him and he has not put himself in the witness‑box. The two lists of articles which were delivered to him are on the file, presumably signed by him, and he has never denied his signatures. All the time that Bunyad Husain was being examined he was explaining as to why he had handed over articles to Muhammad Aziz in spite of the entries in the list filed by the complainant, yet Muhammad Aziz never cross‑examined him. It is during argu ments that learned counsel for Muhammad Aziz took up this plea for the first time. I have no hesitation in finding Muhammad Aziz guilty too.

31. Learned counsel for the petitioner has also prayed that I should hold Bunyad Husain guilty in respect of his tampering with the contents of the trunk. I am of the opinion, however that that is too serious a matter to be the basis of a simple proceeding for contempt of Court. If Bunyad Husain tampered with the contents of the trunk he has been guilty of serious offences like theft, fabrication of evidence etc. He represented that there was an order of Court authorising him to take posses sion of the trunk and he may be guilty of cheating. The petitioner should file a proper application before the trial Court who will make an enquiry as to the allegations of tampering with the contents and if it finds a prima facie case against Bunyad Husain it may proceed to launch a prosecution against him.

32. At the same time the learned Magistrate will have to go into the disappearance of the part of the property which had been taken possession of by the A. S. I. and to which I have already referred. The complainant should make an application to the Magistrate in that behalf and the learned Magistrate can, after enquiry, pass a proper order.

33. There is a prayer for an order directing return of the articles improperly delivered to A. R. Khokhar and Muhammad Aziz. I do not think I should myself pass such an order because these proceedings have all along been treated as for contempt. It is for the learned ‑Magistrate to decide that matter.

34. This is a case of deliberate disobedience and a gross abuse of an order of this Court by a public officer in order to favour a particular party. I direct that Bunyad Husain and Muhammad Bakhsh be committed to the prison for a period of one month each, while A. R. Khokhar and Muhammad Aziz shall pay a fine of Rs. 200 each. If the fine is not paid, they shall be committed to prison for a period of one month each. A. H. Respondents convicted.