NAZAR ABBAS, ADDITIONAL REGISTRAR (JUDICIAL) PRESENTLY OSD SUPREME COURT OF PAKISTAN Versus State

ORDER

JAMAL KHAN MANDOKHAIL, J.--- Facts in brief are that through Civil Petition bearing No. 836-K of 2020 along with other petitions ( 'petitions' ), vires of subsection (2) of section 221-A of the Customs Act of 1969 ( 'Act of 1969' ) was challenged. This Court on 06.05.2021 issued notices to the respondents and to the learned Attorney General for Pakistan ( 'AGP' ) under Order XXVII-A, Code of Civil Procedure ( 'C.P.C.' ). On 13.01.2025, the learned counsel for the petitioners pointed out that pursuant to the 26th Constitutional Amendment, the three members regular bench 1 ( 'regular bench' ) cannot proceed into the matter. The regular bench instead treated the petitions as part-heard and directed the office to fix them before the same bench on 20.01.2025, but the needful was not done. Consequently, the regular bench issued a notice to the Additional Registrar (Judicial) (the 'appellant' ), asking him as to why a contempt of court proceedings may not be initiated against him for non-fixation of the petitions before the same bench. Through the Criminal Original Petition No. 1 of 2025 ( 'Crl.OP' ), the contempt of Court proceedings were initiated against him. Feeling aggrieved, the instant appeal was filed, during pendency whereof, the appellant filed Crl. Misc. Application No. 43 of 2025, requesting for the withdrawal of the appeal. It was alleged that the notice issued to the appellant has been withdrawn by the regular bench, by means of order dated 27.01.2025, relevant portion whereof is as under:

"31...In this background, it appears that the matter has to proceed further against the members of the two Committees. However, judicial propriety and decorum demand that the said question be considered and decided by the Full Court of the Supreme Court so that it is authoritatively decided once and for all... Consequently, we refer this matter to the Hon'ble Chief Justice for the convening of the Full Court to deliberate and decide on this important issue."

2. The regular bench while discharging the notice against the appellant decided to refer the Crl.OP to the Hon'ble Chief Justice for convening a Full Court for proceeding contempt of Court proceedings against members of the Committee constituted under the Supreme Court (Practice and Procedure) Act, 2023 ( 'First Committee' ) and the ( 'Second Committee' ) constituted under Article 191A(4) of the Constitution of the Islamic Republic of Pakistan, 1973 ( 'Constitution' ). It is well settled that once a court takes cognizance of a matter, it is for that court either to accept or refuse the request for withdrawal, as has been held by this Court in the case of Jurist Foundation through Chairman 2 . This Court has taken cognizance of the matter to consider vires of the notice issued to the appellant and the proceedings upon Crl.OP. Though, the notice issued to the appellant has been discharged by the regular bench through order dated 27.01.2025, but the order contained observations against members of the Committees, which is required to be dealt with accordingly. Thus, the application for withdrawal of the appeal to the extent of the appellant is partly allowed, whereas, to the extent of members of both the Committees, it shall proceed.

The primary question for consideration before us is as to whether members of both the Committees, who are sitting Judges of the Supreme Court, can be proceeded under Article 204 of the Constitution by their fellow Judges for committing contempt of this Court?

3. We were ably assisted by the learned Additional Attorney General, M/s Barrister Salahuddin Ahmed and Shahid Jamil Khan learned ASCs, learned counsel for some of the parties in the main petitions. The source of power of the court for initiating contempt proceedings is under Article 204(2) of the Constitution, which is reproduced herein below:

"(2) A Court shall have power to punish any person who--

(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;

(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;

(c) does anything which tends to prejudice the determination of a matter pending before the Court; or

(d) does any other thing which, by law, constitutes contempt of the Court."

In this Article, "Court" means the Supreme Court or a High Court, comprising of Chief Justice and Judges of the respective Court. Whether a Judge of the Supreme Court or of a High Court fall within the category of a "person"? Article 199(5) of the Constitution defines the word "person" as under:

(5) In this Article, unless the context otherwise requires,- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan;

4. A High Court may make an order to a person, described in Article 199 of the Constitution. However, by virtue of holding constitutional position, Sub-Article (5) of Article 199 of the Constitution grants immunity to Judges of the Supreme Court and of High Courts for acts performed within their judicial and administrative capacity. The analogy for providing immunity is to prevent a Judge of a Court from misusing jurisdiction and authority by judging and controlling a fellow Judge of the same Court. It protects the Judge against any interference from outside or within the institution. It safeguards the integrity and authority of the Court and boost the ability of Judges to perform their duties smoothly, to make sure that their decisions are not influenced by fear of being subjected to any adverse action. The concept of immunity is to preserve the authority of the judicial institution, which is crucial for the rule of law and for proper administration of justice. The constitutional scheme of immunity to the Judges of the Superior Courts is to secure the independence of the judiciary, which is the command of Article 2A of the Constitution. It is for this reason, a Judge of the same Court cannot issue any kind of writ nor can take any action against another Judge of the same Court. Reliance in this behalf is placed on the case of Muhammad Ikram Chaudhry 3 .

5. The judiciary being a central pillar of the democratic State is the guardian of the rule of law. The power of judicial review is vested in the superior courts, to oversee that all individuals, institutions, executive and legislature act within the framework of the Constitution and the law. The judiciary's function includes adjudication of disputes between the parties and do administrative work in connection with their respective Court. The power of contempt of court is to ensure that court's orders and judgments are obeyed. It allows courts to punish action that interferes with proceedings, disobeying of orders, or to bring the administration of justice into disrepute. It is unequivocally clear that a "person" defined in Article 204 of the Constitution is answerable to the Court, when any decision and/or direction is made to him. It is well settled that a Judge of the Supreme Court or of a High Court is not answerable to a Judge of the same Court. If a Judge of the Superior Court cannot issue a writ to another Judge of the same Court, how can a Judge be given power to issue a direction or initiate proceedings under Article 204(2) of the Constitution against a sitting Judge of the same Court and punish him for committing contempt of Court? The Indian Supreme Court in the case of Parkash Chand 4 has answered this question as under:

"43. The issuance of a notice to show cause why contempt proceedings be not initiated against respondent No. 2, the Chief Justice of the High Court, by Shethna, J. in the facts and circumstances of this case is thus wholly illegal unwarranted and without jurisdiction. Issuance of such a notice is also misconceived since by stretch of imagination can it be said that there was any interference in the administration of justice by the Chief Justice in exercising his statutory powers to allocate work to puisne Judges and to the division benches. The order of reference of the part-heard writ petition to the Division Bench for its disposal, as already noticed, was legally sound and statutorily valid. Such an action on the part of a Chief Justice could never become a cause for issuance of contempt notice to him. To expect the Chief Justice to say so in response to the show cause notice before the learned single Judge would be adding insult to injury. We cannot countenance such a situation. The direction to issue show cause notice to the Chief Justice. respondent No. 2 being totally misconceived illegal and without any jurisdiction and is wholly unsustainable. We quash the same." (Emphasis supplied).

6. Though, Judges of the Superior Courts are generally protected by judicial immunity for their judicial work and administrative functions with respect to the affairs of their respective Courts, but this protection is not absolute. It does not shield them from the consequences for a misconduct, which is a matter of judicial administration or discipline. The allegation of misconduct against a Judge of the Supreme Court or of a High Court can only be inquired into and dealt with under Article 209 of the Constitution by the Supreme Judicial Council ( 'SJC' ). Sub-Article (7) of Article 209 of the Constitution bars any other forum from inquiring into matters of misconduct against a Judge of the Supreme Court or of a High Court. This is a substantive provision and salient feature of the Constitution. Initiating contempt proceedings against a person may require probe, inquiry or trial, leading to punishment. Under such circumstances, the process of contempt of Court against a Judge under Article 204(2) of the Constitution would be in direct conflict with Article 209(7) of the Constitution, hence, constitutionally not permitted. Reference in this behalf is placed to the case of Mujibur Rahman Shami and others 5 .

Under such circumstances, relying upon the principle provided by sub-Article (5) of Article 199 of the Constitution, the intention of the Legislature is evident that they never intended to permit a Judge of a Court to take any action against a Judge of the same Court. Thus, no action for the contempt of Court could lie against Judges of the Supreme Court and of High Courts by their fellow Judges, respectively.

7. Without prejudice to the above, the power to initiate contempt of Court proceedings is inherent in the judiciary by virtue of its constitutional and institutional authority. Judges of Superior Courts possess the same status and power within their hierarchy, therefore, no one amongst them is superior or inferior to issue direction nor can punish the other. Permitting a Judge of the Supreme Court or of a High Court to initiate contempt proceedings against his fellow Judge(s), would militate against the necessity of maintaining a high degree of comity amongst them. This Court in the case of Mian Jamal Shah 6 has held as under:

"It is a paramount necessity that officials of a Government should always act, within the scope of their duties, for the public interest, and it is very greatly in the public interest that bodies of officials who are concerned in any particular aspect of governmental activity, should act as a single unit, bound to each other by a certain loyalty, always of course within the scope of public interest. Where such a feeling, which may rightly be described as esprit de corps does not exist, it is clear that the process of Government must be gravely prejudiced."

"Esprit de corps" means the common spirit existing in the members of a group and inspiring enthusiasm, devotion, and strong regard for the honor of the group. The maintenance of cordial relations amongst members of the Superior Judiciary is important for the smooth functioning of Courts. Issuing a process of contempt of Court by a Judge against his fellow Judge would create internal conflicts, grievances and grudges amongst themselves. There would be anarchy and justice system would crumble, which will be against the principle of "Esprit de corps" , hence, will erode public trust. No legal system can permit the judicial system to collapse.

8. In the judicial history of Pakistan, for the first time, this Court issued contempt notices to a number of Judges of this Court and of different High Courts in the case of Justice (R) Iftikhar Hussain Ch. and others 7 , for violating restraining order dated 03.11.2007 of this Court. Relevant facts leading to that contempt proceedings are that on 3rd of November, 2007, the then Chief of Army Staff (General Pervaiz Musharraf), proclaimed an emergency in the country, followed by the Provisional Constitution Order (1 of 2007) (the "PCO" ) and Oath of Office (Judges) Order, 2007. On the same date, seven Judges of this Court passed an order on C.M.A. No. 2869 of 2007, restraining Judges of the Supreme Court and of High Courts, including Chief Justice(s) from taking Oath under the PCO or any other extra-constitutional step. Out of eighteen Judges, five Judges of the Supreme Court and a number of Judges from different High Courts, took Oath under the PCO. After restoration of the judiciary in the year 2009, a fourteen-member bench of this Court passed a judgment on 31st July, 2009 in the Sindh High Court Bar's petition 8 . It was held that the Judges who in violation of the restraining order dated 3rd of November, 2007, took Oath under the PCO, ceased to be Judges of the Supreme Court or of respective High Courts and have rendered themselves liable for consequences under the Constitution for their disobedience. Pursuant to the said judgment, process under Article 204 of the Constitution was initiated against them on 5th of October, 2009, wherein, the primary question for consideration was as under:

(i) Is it constitutionally permissible for this Court to proceed under Article 204 of the Constitution against Judges of the Supreme Court and of the High Courts, for committing contempt of this Court?

9. Admittedly, the Judges who took Oath under the PCO, were performing their functions as Judges of the Supreme Court and of High Courts, respectively. Through the judgment of 31st of July, 2009, this Court held that upon taking Oath under the PCO, the respondents ceased to hold office as Judges of the Supreme Court and of the respective High Courts. Disciplinary matters of constitutionally sitting Judges can only be inquired into by the SJC, under Article 209 of the Constitution. On account of their unconstitutional act of taking Oath under the PCO, they were no more Judges under the Constitution. That is why, the Judges in that case were proceeded against under Article 204 of the Constitution read with Contempt of Court Ordinance V of 2003. Thus, facts and circumstances narrated in the judgment of the said case reported in PLD 2011 SC 197 are quite distinguishable from the facts and circumstances of the case in hand.

10. It is well settled that part-heard matters may not be transferred through an administrative order, unless the Constitution, the law or the rules so permit. The purpose behind this principle is that once a bench or a court hears a case at a considerable length, transferring the said case from that court can lead to a de novo hearing. Hearing of the part-heard matter by the same bench/court maintains consistency, without repetition of evidence and arguments in view of the fact that Judge(s) of that bench/court is already familiar with the case. However, in case during the pendency of a matter, if jurisdiction of a court is taken away through amendment in the Constitution or law or through new legislation, the Court where the matter is pending or is treated as part-heard, it loses its authority to take any further action into the matter, hence, must stop proceedings. A Judge(s) or a Bench(es) cannot direct the office or either of the Committee to fix a particular case before itself, which is not within its jurisdiction or as per the roster is not fixed before the said bench nor can withdraw any matter which is already pending before another bench. Only the bench which is seized with the matter or has partly heard it, can delist it. Judges are bound by their Oath, the Code of Conduct of the Judges, the law and the rules. Strict adherence whereof is essential for maintaining judicial discipline and smooth functioning of the Court. If every Judge of the Supreme Court or of a High Court starts picking and choosing cases for disposal by him, without following the practice and procedure in vogue, of their respective Courts, the discipline in the Court will be damaged, which will erode the public trust and the ultimate sufferer will be the public at large.

11. It is important to mention here that during the pendency of the main petitions, the Parliament introduced 26th Constitutional Amendment by adding Article 191A and Article 202A of the Constitution. According to Sub-Article (1) of Article 191A of the Constitution, there shall be Constitutional Benches of the Supreme Court comprising of such Judges of the Supreme Court, to be nominated by the Judicial Commission of Pakistan from amongst the Judges of the Supreme Court, from time to time. It further provides that the Constitutional Benches may comprise equal number of Judges from each Province. Sub-Article (3) of Article 191A of the Constitution mandates that no bench of the Supreme Court, other than a Constitutional Bench of the Supreme Court shall exercise jurisdiction in respect of matters to which clause (3) of Article 191A of the Constitution applies. The said sub-Article has taken away the jurisdiction of any other bench of the Supreme Court in respect of the matters to which sub-Article (3) applies and it is confined only to the Constitutional Benches. Similarly Sub-Article (5) of Article 191A of the Constitution mandates that all petitions, appeals or review applications against judgments rendered or orders passed to which clause (3) applies pending or filed in the Supreme Court prior to commencement of Constitution (Twenty-sixth Amendment), Act 2024 (XXVI of 2024), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by the Constitutional Benches, constituted under clause (4). The words forthwith stand transferred used in sub-Article (5) implies that by operation of the Constitution, all pending or filed cases in the Supreme Court prior to commencement of 26th Constitutional Amendment, to which clause (3) applies, automatically stand transferred to the Constitutional Bench. Reliance in this behalf is placed on the case of Dewan Motors (Pvt.) Ltd. 9 .

12. Article 191A of the Constitution has established a new hierarchy, by exclusion of the other benches of the Supreme Court in respect of cases to which sub-Article (3) applies. The jurisdiction to hear these cases has been assigned to the Constitutional Benches. Under such circumstances, the Constitution has taken away jurisdiction of the regular bench of the Supreme Court, hence, it no longer had the power to adjudicate those petitions, irrespective of any order, treating the petitions as part-heard. Besides, prior to the 26th Constitutional Amendment, the petitions were already pending before this Court, to which, sub-Article (3)(b) of Article 191A of the Constitution applies. In view of sub-Article (5), those petitions automatically stood transferred forthwith to the Constitutional Bench, hence, could not have been fixed before the regular bench. Legally, there were no petitions pending before the regular bench, but due to inadvertence, the office placed files of those petitions before it. Merely, by placing files of the petitions before the regular bench does not mean that it got the jurisdiction to proceed with the matter. In any case, constitutionally, the regular bench became functus officio , therefore, should have stopped the proceedings, leaving the matters for their disposal by the forum, having jurisdiction. Sub-Article (2) of Article 5 of the Constitution provides that obedience to the Constitution and law is the [inviolable] obligation of every citizen. It was the constitutional obligation of the Hon'ble members of the regular bench to have obeyed the command of the Constitution, by refraining themselves from proceeding further into the matter, especially, when the learned counsel for the petitioners made a reference to Article 191A(3) & (5) of the Constitution, but the learned members of the regular bench opted to proceed into the matter. With great respect, there was no justification for the regular bench for further proceedings into the matter in contravention of the relevant provisions of the Constitution.

13. We have painfully observed that the Hon'ble members of the regular bench even did not take into account the principle of esprit de corps . Had the regular bench before passing the order dated 27.01.2025 and issuing the process of contempt of court, contacted members of the Committees, the present uncalled-for event could have been avoided. It is a fact that after satisfaction, the regular bench had withdrawn the notice issued to the appellant, but surprisingly, it out of the blue, decided to initiate process under Article 204 of the Constitution against members of both the Committees. It is not understandable as to what had prevailed upon our brother Judges while issuing the process against members of the Committees. Once the notice against the appellant was withdrawn, upon which, the Crl.OP was registered, nothing was left for the regular bench to proceed any further. A question arises as to how they decided to proceed against members of the Committees. Even otherwise, the said order cannot be implemented for the reason, firstly , there was no direction from the regular bench to either of the Committee; secondly , members of both the Committees have no power to fix the petitions before the regular bench, as by operation of the Constitution, those petitions already stood transferred and were pending before the Constitutional Bench, prior to passing the order for fixation of the petitions before it. The members of both the Committees have no role either in transferring the petitions to the Constitutional Bench, nor had the power to withdraw them therefrom and fix them before the regular bench. In any circumstance, members of both the Committees did nothing which would constitute an act falling within the ambit of Article 204 of the Constitution.

Thus, in view of the above, the process for initiating contempt of Court proceedings against members of both the Committees is not sustainable, hence, is quashed. The entire edifice built pursuant to order dated 21.01.2025 up till the last order dated 27.01.2025 passed by the regular bench shall cease to hold the field. These are the reasons of our short order dated 27.01.2025, which is reproduced herein below:

"Through this application, the appellant requests for withdrawal of criminal ICA on the pretext that the learned Bench of this Court, which took up the matter has discharged the show cause notice issued to him.

2. We have gone through the application and the order impugned. The appellant wants to withdraw his personal issue, therefore, we have no objection upon such withdrawal. Consequently, the application to the extent of his personal relief sought through the Crl. I. C.A. is allowed. However, the request for withdrawal of appeal as a whole is declined.

3. M/s Salahuddin Ahmed, Shahid Jamil Khan and Muhammad Shoaib Shaheen, ASCs are present in Court. We have also called learned Attorney General for Pakistan, on whose behalf, learned Additional Attorney General has appeared. We have heard all of them. The issues pertain to the interpretation of the Constitution and the law, therefore, the appeal is disposed of, for the reasons to be recorded later regarding such issues."

I will also contribute my separate note. (HJ5)

Sd/- Sd/-

Judge Judge

Sd/- Sd/-

Judge Judge

IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

Present

Justice Jamal Khan Mandokhail

Justice Muhammad Ali Mazhar

Justice Athar Minallah

Justice Syed Hasan Azhar Rizvi

Justice Shahid Waheed

Justice Musarrat Hilali

Cr1. I.C.A. No. 1 of 2025 and Cr1. M.A. 135/2025

(Against order dated 21.01.2025 of this Court passed in Cr1. O.P. 01/2025).

Nazar Abbas, Additional Registrar (Judicial) Appellant presently OSD Supreme Court of Pakistan versus

The State Respondent

For the Appellant:

Mr. Muhammad Shahid Kamal Khan, Advocate Supreme Court

Mr. Anees Muhammad Shahzad, AOR With the appellant

For the Respondents:

Ch. Aamir Rehman, Addl. AGP

Mr. Rashideen Kasuri, Addl. AGP (on Court's call)

Voluntary Appeared:

Barrister Salahuddin Ahmed, Advocate Supreme Court Mr. Shahid Jamil Khan, Advocate Supreme Court

Mr. Muhammad Shoaib Shaheen, Advocate Supreme Court

Date of hearing: 27.01.2025.

ORDER

Criminal M.A. No. 43 of 2025

This application requests permission to withdraw the appeal filed under section 19 of the Contempt of Court Ordinance, 2003 challenging the show cause notice. It is submitted that, in light of the fact that the original bench has discharged the contempt notice, the continuation of this appeal is no longer necessary or relevant, and, therefore, permission to withdraw the appeal be granted.

2. Considering the facts stated above, granting the prayer made in this application is deemed reasonable and appropriate.

3. Consequently, this application is hereby granted, and the appeal is dismissed on the grounds of having been withdrawn.

Sd/-

Shahid Waheed

Sd/-

Athar Minallah

I concur with my brother Shahid Waheed, J. The impugned order has become infructusous since the notice has been discharged. This Bench was constituted under the Contempt of Court Ordinance, 2003 read with Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973. There is no other matter pending before this Bench. With the discharge of the impugned notice proceedings under the Contempt of Court Ordinance, 2003 are no more pending. The appeal is, therefore, accordingly dismissed.

MH/N-8/SC Order accordingly.

***

1 Justice Syed Mansoor Ali Shah, Justice Ayesha A. Malik and Justice Aqeel Abbasi.

2 Jurist Foundation through Chairman v. Federation of Pakistan PLD 2020 SC 1, S.P. Anand v. H.D. Deve Gowda AIR 1997 SC 272 and Sheela Barse v. Union of India AIR 1988 SC 2211

3 PLD 1998 SC 103.

4 AIR 1998 SC 1344.

5 PLD 1973 Lahore 778.

6 PLD 1966 SC 1

7 PLD 2011 SC 197

8 PLD 2009 SC 879

9 PLD 2025 SC 394