Haji SAID REHMAN (deceased) Versus MUHAMMAD FATEH KHAN

ORDER

YAHYA AFRIDI, CJ.--- The present set of petitions comprise, three constitutional petitions, namely C.P.L.A. No. 1964/2020, C.P.L.A. No. 1011/2020, and C.P.L.A. No. 1040/2020, one Civil Miscellaneous Application, namely C.M.A. No. 10953 of 2021, and two Criminal Original Petitions, namely Cr.O.P No. 32/2024 and Cr.O.P No. 33/2024. All of the aforementioned arise out of a common judgment passed by the Peshawar High Court dated 17.2.2020. A brief resume of the events leading to the present petitions is as under:

2.C.P.L.A. No. 1964/2020 and C.P.L.A. No. 1011/2020 both originated before the Civil Court and travelled through the regular appellate hierarchy, culminating in Civil Revision No. 99-P/2016 before the Peshawar High Court. These petitions challenge the order dated 17.02.2020 passed by the High Court in the said civil revision.

3.C.P.L.A. No. 1040 of 2020, likewise originated before the Civil Court and proceeded through the appellate route; however, following dismissal of the revision petition before the Additional District Judge, the matter was taken up before the Peshawar High Court by way of Writ Petition No. 3240-P of 2014, which was allowed vide order dated 17.02.2020.

4.Significantly, both the writ petition and the civil revision were decided through a consolidated judgment, on the basis that they raised a common legal question relating to the jurisdiction of the Civil Court. The C.P.L.As. against the said consolidated judgment were filed before the Supreme Court, and the same were ordered to remain clubbed. Civil Miscellaneous Application No. 10953 of 2021, also arising out of Civil Revision No. 99-P/2016, is likewise connected and stands clubbed with the present proceedings.

5.Subsequently, Criminal Original Petitions Nos. 32 and 33/2024, arising out of C.P.L.A. No. 1011/2020, were instituted alleging contempt on the ground that the respondents failed to maintain status-quo, despite directions to that effect having been issued by this Court during the pendency of the proceedings.

6.Given the above, the attention of the Court was drawn to the following two jurisdictional issues that warranted consideration in light of the present constitutional dispensation, as it stands after the Twenty-Seventh Constitutional Amendment:

II. the treatment of contempt proceedings arising in relation to orders passed by the Supreme Court in such matters.

Analysis:

7.In order to address the first issue, it is necessary to, first, appreciate that the Twenty-Seventh Constitutional Amendment established a Federal Constitutional Court, with its appellate jurisdictional contour drawn under Article 175F. For present purposes, particular attention must be paid to Article 175F(1) and (2) of the Constitution, which provide:

8.Article 175F(2) of the Constitution, read with Article 175F(1) of the Constitution, thus, expressly affords inter-alia jurisdiction of appeals from a judgment or an order of a High Court made under Article 199 to the Federal Constitutional Court, making it clear that all such matters (hereinafter referred to as writ proceedings ) pending before the Supreme Court stand transferred to the Federal Constitutional Court, and that as such, the Federal Constitutional Court has exclusive jurisdiction to hear and decide them.

9.In contradistinction, the appellate jurisdiction of the Supreme Court is constitutionally defined in Article 185 of the Constitution, which provides, in material part:

10.Article 185, accordingly, governs the appellate jurisdiction of this Court in respect of appeals arising from judgments, decrees, final orders, or sentences of a High Court in cases which do not fall within Article 175F of the Constitution. These are hereinafter referred to as regular proceedings , comprising all such matters which proceed to this Court in exercise of its appellate jurisdiction and are not subject to transfer to the Federal Constitutional Court under Article 175F.

11.Thus, the scheme of the Constitution, as it presently stands, is unambiguous: all writ proceedings, except those relating to rent and family matters, are within the jurisdiction of the Federal Constitutional Court, whereas all regular proceedings are within the jurisdiction of the Supreme Court. Consequently, all matters falling within the appellate jurisdiction of the Federal Constitutional Court are by operation of constitutional command stand transferred to the Federal Constitutional Court, while all regular proceedings are to be heard and decided by the Supreme Court itself. It then follows that any writ and regular proceedings that have been clubbed together must, therefore, in conformity with the present constitutional framework, be de-clubbed, so that each category of cases may be routed to its proper forum.

12.However, it bears clarification that prior to the Twenty-Seventh Constitutional Amendment, matters were routinely clubbed where they had proceeded in parallel before this Court or involved common questions of law. Routing such cases to their respective fora under the present constitutional dispensation, thus, may give rise to a potential complication: both writ-proceedings and regular-proceedings may entail adjudication of the same question of law before the Federal Constitutional Court and the Supreme Court, respectively, thereby increasing the possibility of contradictory decisions.

13.In this context, Article 189 of the Constitution appears to assume significance. For reference, it reads:

The text of Article 189(1) of the Constitution must deliberately be read in conjunction with the overall post-Twenty-Seventh Amendment framework, which intentionally arranges jurisdiction between the Supreme Court and the Federal Constitutional Court across distinct domains, as described above. This particular arrangement assigns to each exclusive competence over different categories of proceedings, rather than establishing a vertical hierarchy. In this context, Article 189(1), while operating to secure consistency in the exposition of legal principles, does not displace the independent jurisdiction of either court to finally determine matters properly before it. As constitutionally mandated, the application and scope of Article 189(1) are limited to questions of law, as reflected in the ratio decidendi , and do not extend to the outcome reached in any particular case by the Federal Constitutional Court. The appellate routes to the Supreme Court and the Federal Constitutional Court are, ultimately, constitutionally distinct and operate independently, insofar as the outcomes of individual cases are concerned. The constitutional scheme does not position either of the two apex courts as an appellate forum to each other; rather, it treats both as coordinate courts exercising clearly demarcated jurisdictions over distinct classes of matters. Any broader construction of Article 189(1) would have the effect of subordinating one apex Court to the other in respect of proceedings constitutionally assigned to fall under its jurisdiction; a result for which there is no warrant in the constitutional text.

14.Coming back to the question presently before us, namely the complication arising from the routing of connected writ-proceedings and regular-proceedings to their respective fora . We find the appropriate solution in the principle of judicial comity, which functions as a doctrine of prudent case-management, aimed at the active avoidance of parallel adjudication which may result in inconsistent or contradictory judicial outcomes. Accordingly, where regular-proceedings pending before this Court and connected writ-proceedings pending before the Federal Constitutional Court involve overlapping questions of law, this Court may, in the exercise of its inherent jurisdiction and discretion to regulate its own proceedings, and in line with judicial comity, defer the hearing of the matter before it, where such deferral does not prejudice the parties, impede the administration of justice, or unduly contribute to pendency. This approach would positively ensure coherence in decisions, while simultaneously preserving the independent jurisdiction of each Court and the ultimate authority of the Supreme Court to finally determine the regular proceedings before it.

15.In addressing the second issue, we must first consider Article 204 of the Constitution, which provides:

3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.

16.Article 204 thereby provides all superior courts the power of contempt, which by the virtue of Article 204(3) may be further regulated by law. The law that presently governs the field is the Contempt of Courts Ordinance, 2003, ( Contempt of Courts Ordinance ) which, pertinently, provides as follows:

As such, the Supreme Court derives its jurisdiction to entertain and adjudicate contempt proceedings arising in relation to its own orders, judgments, and processes from the Constitution, which is regulated by the relevant statutory framework on the subject.

17.At this juncture, we find it appropriate to briefly examine the legal nature of contempt. Contempt of Court has classically been defined as disobedience of, or opposition to, the authority, justice, or dignity of the Court 1 . The doctrinal origins of this concept lie in the common law tradition, where contempt jurisdiction was developed as an incident of very institution of courts. The rationale in that context was straightforward: a court of law, and by extension the sovereign at the time, could not effectively discharge its function of administering justice if its authority was rendered ineffective by disregard or interference. While the concept has since evolved, its essence remains rooted in the need to preserve the institutional integrity of a court of law in the broader interest of justice. Contempt jurisdiction is, therefore, understood as an inherent power of the court, exercised for the limited but essential purpose of maintaining its authority and ensuring that its constitutional duty to administer justice is carried out without obstruction or hindrance.

18.This position is, further, also firmly settled in the jurisprudence of this Court, where it has consistently been held that contempt jurisdiction is exercised for the vindication of the dignity and authority of the Court and for the preservation of the administration of justice. 2 It is equally well-established that contempt proceedings are, in essence, a matter between the court and the alleged contemnor. 3 The rationale for this being the position of law on contempt is of fundamental constitutional importance. The efficacy of judicial institutions in a constitutional democracy is inextricably linked to faith in the administration of justice. 4 If courts were divested of the power to enforce compliance with and maintain the integrity of their own orders, their authority would be reduced to mere declarations devoid of enforceability. The contempt jurisdiction, therefore, operates as an essential safeguard ensuring that the authority of the court, as an institution, is not rendered ineffectual.

19.Having set out the general principles governing contempt jurisdiction, we now turn to the scheme of the Contempt of Court Ordinance, which classifies contempt into three categories, namely civil, criminal, and judicial contempt. Section 2 defines these as follows:

A plain reading of the above definitions shows that civil contempt is to secure compliance with judicial orders and thereby ensure the efficacy of the adjudicatory process. Criminal contempt, by contrast, encompasses acts which obstruct or tend to obstruct the administration of justice. Its focus is not the enforcement of a particular order, but the protection of the integrity of the judicial process itself. It is, therefore, punitive in character and is invoked to vindicate the authority of the Court, where such authority is threatened or undermined. Judicial contempt, being concerned with scandalisation of a court or personalised criticism of a judge, is likewise institutional in nature and is directed towards preserving public confidence in the administration of justice and the dignity of the Court.

20.The above analysis demonstrates that the Contempt of Courts Ordinance embodies a structured recognition of three distinct manifestations of contempt, namely civil, criminal, and judicial contempt. These categories, though doctrinally distinct, converge on a common consequence: conduct which, in its effect, lowers the authority of the Court. The conceptual essence that emerges therefrom is that contempt constitutes a singular, self-contained juridical relationship, existing exclusively between the Court, whose authority is alleged to have been undermined, and the individual against whom such allegation is made. The functional distinction between them, as described above, does not detract from the overarching institutional foundation of contempt jurisdiction, nor does it, by itself, mandate a rigid or automatic allocation of jurisdiction between courts; the exercise of contempt jurisdiction remains anchored in the authority of the Court concerned and must necessarily be informed by the circumstances of each case.

21.In the present case, however, no question of transfer of the contempt proceedings arises, as Criminal Original Petitions Nos. 32 and 33 of 2024, alleging contempt on the ground that the respondents failed to maintain status quo despite directions to that effect having been issued by this Court in C.P.L.A. No. 1011 of 2020, arise from and are connected with the regular proceedings (C.P.L.A. No. 1011 of 2020), which remain pending before this Court for final adjudication. Therefore, it would not be appropriate to record definite findings on the question of transfer of any of the three forms of contempt envisaged under the Contempt of Court Ordinance, as any such determination would be merely academic. More importantly, judicial propriety demands that the same be addressed and determined in an appropriate case where such a question arises.

Conclusion:

22.In view of the foregoing analysis, and having regard to the constitutional framework introduced by Article 175F of the Constitution, the petitions presently before this Court are ordered to be de-clubbed. C.P.L.As. Nos. 1964/2020 and 1011/2020 emanating from regular-proceedings, along with C.M.A. No. 10953 of 2021, shall continue to be heard and decided by this Court, whereas the C.P.L.A. No. 1040/2020 arising from writ-proceedings stand transferred to the Federal Constitutional Court.

23.We have also considered whether the proceedings remaining before this Court ought to be stayed pending adjudication of the writ proceedings before the Federal Constitutional Court. In this particular case, we do not find any such course to be warranted. The substantive adjudication on merits in the impugned order of the High Court was undertaken in the course of the regular-proceedings, wherein the issue of jurisdiction of the civil court was decided and the matter remanded. The writ-proceedings were purely ancillary and consequential, intended to follow the outcome of the regular proceedings. In these circumstances, the writ-proceedings cannot be regarded, as so connected as, to necessitate a stay of the proceedings pending before this Court, nor does proceeding with the same give rise to any real risk of contradictory determination.

24.As regards Criminal Original Petitions Nos. 32 and 33 of 2024, the same arise out of, and remain intrinsically linked with, the case in which the orders, the violation whereof is alleged, were passed, namely C.P.L.A. No. 1011 of 2020, emanating from regular proceedings. These Criminal Original Petitions shall be heard along with C.P.L.A. No. 1011 of 2020 and, therefore, do not stand transferred to the Federal Constitutional Court.

25.The office is directed to do the needful in the instant matter, and in other similar clubbed cases pending before this Court.

UN/S-20/SC Case forwarded.

1 See Contempt of Court, Committal, and Attachment, and Arrest Upon Civil Processes (1895), by James Francis Oswald, Q.C.

2 Taj Din v. The State (PLD 1975 SC 490) and Khalid Rashid v. Kamran Lashari (2010 SCMR 594).

3 Syed Masood Alam Rizvi v. Dr. Muhammad Saeed (2009 SCMR 477) and Khalid Rashid (supra).

4 See P.N. Duda v. P. Shiv Shanker (1989 MLD 2543), Supreme Court of India.