JUSTICES HASNAT AHMAD KHANAND SYED SHABBAR RAZA RIZVI: In the matter
This matter arises from identical applications filed by Justice Hasnat Ahmad Khan and Syed Shabbar Raza Rizvi seeking equal treatment under Articles 4, 9, 25, and 10-A of the Constitution of Pakistan 1973, and requesting that notices be issued to other functionaries, including the former President General Pervez Musharraf and former Prime Minister Shaukat Aziz, who were allegedly equally liable for actions connected to the Proclamation of Emergency, Provisional Constitution Order, and Oath of Office (Judges) Order, 2007. The core legal question was whether proceedings against the applicants for contempt of court regarding the disobedience of the restraint order dated 3-11-2007 should be linked or clubbed with potential contempt proceedings against other high functionaries. The Court held that the alleged contempt involving the issuance of constitutional instruments prior to 3-11-2007 is materially different from the charge of disobeying the restraint order itself, and thus the proceedings should remain independent. The key principle laid down is that distinct classes of contempt arising from different factual bases and timelines ought not to be clubbed together.
- Whether contempt proceedings for disobeying a court restraint order should be clubbed with proceedings regarding the issuance of the Proclamation of Emergency and Provisional Constitution Order?
- Do persons who issued constitutional instruments prior to a restraint order face the same contempt charges as those who allegedly disobeyed the restraint order directly?
- Article 4, Constitution of Pakistan 1973
- Article 9, Constitution of Pakistan 1973
- Article 10-A, Constitution of Pakistan 1973
- Article 25, Constitution of Pakistan 1973
ORDER
MAHMOOD AKHTAR SHAHID SIDDIQUI, J.---Justice Hasnat Ahmad Khan and Justice Syed Shabbar Raza Rizvi have filed these identical applications in which the following prayer has been made:-- "(i) Mandate of Article 10-A to be read with Articles 25, 4 and 9 of the Constitution of Pakistan fulfilled to treat the petitioner similarly as functionaries, graciously treated mentioned in subparas.
Nos.(i) and (iii) of restraint order dated 3-11-2007.
(ii) For purposes of due process a notice of the same kind as has been served on the present petitioner and other Judges be also served on the functionaries enumerated in sub-paras (i) and
(iii) of Restraint Order dated 3-11-2007.
(iii) Further proceedings in the above-noted case may be adjourned till service of notice on the enumerated category so that the petitioner is treated alike.
(iv) Even for purposes of the process, the functionaries who have played major role are to be treated in the same fashion as the petitioner whose role is merely for taking oath arranged for him and other Judges by other functionaries.
(v) An other relief deems suited to the peculiar facts of this case may also be granted."
2. It has been asserted by learned counsel representing the said applicants/respondents Mr. Shabbar Raza Rizvi and Mr. Hasnat Ahmad Khan that notices be issued to other persons mentioned in paras (i) and (iii) of the order dated 3-11-2007 including the then COAS and President General Pervez Musharraf and the then Prime Minister Mr. A Shaukat Aziz .Because these persons are equally liable for disobeying the order passed by seven-Member Bench of this Court on 3-11-2007. We have considered the submissions of learned counsel and have also noted the contents of these applications and prima facie find substance in the same. We also find that the contempt alleged against these persons is primarily consequent to issuance of the three instruments viz. Proclamation of Emergency, Provisional Constitution Order and Oath of Office (Judges) Order, 2007 and thereby launching an assault on the independence of the Judiciary. It appears prima facie, that these instruments were issued prior to the passing of the order dated 3-11-2007 and not in disobedience of the same. Therefore, the case for contempt of Court these persons will have to answer is materially different from the B charge to be faced by the respondents which arises on account of their disobedience of the order passed by the seven-Member Bench of this Court on 3- 11-2007. The proceedings therefore, against the aforesaid persons may proceed independently and on their own facts, either before this Bench or before some other Bench as may be determined by the Hon'ble Chief Justice of Pakistan. It is, in our opinion, quite unnecessary to link or club the proceedings against the respondents with those which may be taken against the above named persons.
3. The office is accordingly directed to place copies of this order and these applications before the Hon'ble Chief Justice of Pakistan for necessary orders.