JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Cr.Misc.(COC)No.313/2014 in Cr.R.No.87/2013

JUDGMENT

Date of hearing……………..29-12-2014....…………

Petitioner Mr. Shahid Orakzai, in person………….

Respondent(s)(Mian Muhammad Nawaz Sharif

(Prime Minister of Pakistan) and Mazhar Alam

Khan Miankhel, Chief Justice, Peshawar High

Court, Peshawar)..By Mr. Abdul Latif Yousafzai,

Advocte-Geheral, Khyber Pakhtunkhwa, and

Barrister Waqar Ahmed Khan, Friend of the Court.

YAHYA AFRIDI,J.- Mr. Shahid Orakzai has,

through the instant Cr.Misc.(COC) No.313/2014,

moved this Court seeking to convict Muhammad

Nawaz Sharif, the Prime Minister of Islamic

Republic of Pakistan and Mr.Justice Mazhar Alam

Khan Miankhel, the Chief Justice, Peshawar High

Court, Peshawar, for contempt of Court.

2. The brief and essential facts, leading to filing

of the instant petition, are that the present petitioner

had earlier moved Cr.R.No.87/2013 (Shahid

Orakzai..Vs..Bahader Khan), against the order of the

Worthy Additional Sessions Judge-V, Kohat dated

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2.7.2013 (“Criminal Revision Petition”), wherein

it was observed that:

“By applying this touch stone it would transpire that

Mr.Shahid Orakzai has no locus standi to appear on

behalf of the complainant. He is not even included

in the definition of legal heirs given at section 305

Cr.P.C. In presence of the widow and issues of the

deceased. Therefore, the application so moved by

him cannot be considered as being part and parcel

of the judicial record. In these circumstances,

henceforth Mr.Shahid Orakzai cannot appear on

behalf of the complainant.”

3. In order to appreciate the alleged contempt

agitated in the instant petition, it would be

appropriate to enumerate the sequence of events as

they unfolded during the proceedings in the

Criminal Revision Petition. The same are as

follows:-

22.7.2013. Hon’ble Mr.Justice Qaiser Rashid first

heard the petition and passed the

following order:-

“Notice be issued to the learned Advocate

General, Khyber Pakhtunkhwa, Peshawar

to assist this Court on the legal issues

raised by the petitioner in the instant

revision petition. The office is directed to

fix the petition in the 3rd week of August,

2013.”

15.8.2013. Hon’ble Mr.Justice Ikramullah Khan

made the following observations:-

“As I remained associated in this case in

capacity of AAG of Khyber Pakhtunkhwa

before the Hon’ble Supreme Court of

Pakistan, therefore, this case may not be

fixed before this Bench. As the respondent

has not been summoned in this case.

Propriety demands that respondent/accused

may also be given notice of this petition

alongwith legal heir of the deceased Major

Khalid Saeed Orakzai on the given address.

Adjourned to a date to be fixed by the

office.”

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30.9.2013. Hon’ble Mr.Justice Yahya

Afridi after hearing the

submissions of the parties

observed:-

“Before this Court proceeds with this case,

it would be appropriate that respondent

No.1 be served through Supdt: Bannu Jail

for 7.10.2013.”

Muhammad, son of deceased

Major Khalid Saeed Orakzai, present in

Court, states that he represents his mother,

brother and sister and would request that

they should not be served with any notice

in the present case, as they did not want to

associate in any manner with the case in

hand. Office is directed to ensure that no

notices are sent to,

(1) Mst.Zahida Rasoon, (Wife),

(2) Muhammad (Son),

(3) Major Yasoo Maseehullah (son)

and

(4) Mst.Laila Khalid (daughter),

of deceased Major Khalid Saeed Orakzai.

Muhammad, produced some

documents in Court, which have been

placed on file.

However, the learned counsel for

the petitioner is advised to ensure that the

certified copies of all relevant documents,

which he intends to refer in the present

petition, be annexed with the petition

before the next date of hearing. This Court,

at this stage, is not going to call the record,

as it has been stated by the worthy Court of

Sessions to be an old case.”

7.10.2013. Ms.Justice Musarrat Hilali adjourned

the case on the ground:

“Latter wants time to file power of attorney

on the next date. Allowed. Adjourned to

21.10.2013.

21.10.2013. Hon’ble Mr.Justice Asadullah

Chamkani observed:

“Despite date by Court, the petitioner and

respondent No.1 are not in attendance.

Office is directed to issue fresh notice to

them for a date in office.”

29.11.2013, 2.12.2013.

Hon’ble Mr.Justice Yahya

Afridi, adjourned the case.

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16.12.2013. Hon’ble Mr.Justice Yahya Afridi,

adjourned the case:

“Learned counsel for the respondent

seeks adjournment, which is resisted by

the petitioner. Let it be the last chance.

Adjourned to 20.1.2014.”

20.1.2014. Hon’ble Mr.Justice Roohul Amin

passed the following order:-

“Former states that this case has been

heard partly by his lordship Mr.Justice

Yahya Afridi, therefore, be placed before

the same Bench. Perusal of order sheets

reveals that no doubt on various dates the

case has been fixed before his lordship

Mr.Justice Yahya Afridi, but no such order

is available to show that it is a part heard

case, however, the petitioner is insisting for

adjournment. The other side has no

objection. Adjourned to a date in office.”

24.2.2014. Hon’ble Mr.Justice Qaiser

Rashid observed:

“On the strike call of the KPK Bar Council,

lawyers are not in attendance. However,

the petitioner states that the present case

was heard at length by his lordship

Mr.Justice Yahya Khan Afridi, therefore,

requests that it be placed before the same

bench. Being so, the office is directed to

place this petition before his lordship for

hearing. Adjourned to a date in office.”

23.5.2014. Hon’ble Mr.Justice Yahya Afridi

observed:

“Let this case be heard by any Bench.

Adjourned to 16.6.2014.”

16.6.2014. Hon’ble Mr.Justice Afsar Shah

adjourned the case:

“In view of the request made by the learned

AAG, it is adjourned to a date in office.

1.9.2014. Hon’ble Mr.Justice Qaiser Rashid

adjourned the Criminal Revision

Petition to 5.9.2014 with the

observations:

“In view of the strike call given by the

Pakistan Bar Council the learned counsel

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for respondent No.1 is not in attendance.

Adjourned to 05.09.2014 with directions to

the office to ensure the service of the

learned counsel for respondent No.1.

5.9.2014. Mr.Justice Mazhar Alam Miankhel, the

Hon’ble Chief Justice, observed:-

“Former (Shahid Orakzai), doesn’t want to

argue this petition before this Bench.

Adjourned to a date in office.”

8.9.2014. The instant Cr.Misc.(COC) No.313/2014,

was filed, wherein Mr. Shahid Orakzai

prayed that:

“Therefore, in view of the above, the High

Court may initiate contempt proceedings

against the prime minister and the chief

justice of the high Court.”

4. The worthy Chief Justice was pleased to mark

the contempt petition before this single Bench for

adjudication thereof.

5. On reviewing the contents of the instant

contempt petition, this Court framed three legal

issues, which warranted determination;

(i) Whether after filing the instant

petition, the informer, Mr.Mr.

Shahid Orakzai, has any “locus

standi” to pursue the instant

petition.

(ii) Whether a High Court can

initiate any proceedings of

contempt against another

Judge of the same Court.

(iii) Whether the assertions made in

the instant petition constitute

the offence of contempt as

enumerated in Contempt of

Court Ordinance 2003 and

Article 204 of the Constitution

of Islamic Republic of

Pakistan, 1973, and if so,

whether there is sufficient

evidence to support the

assertion so made in the

petition.

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6. Keeping in view the sensitivity and

seriousness of the aforementioned issues, this Court

deemed it pertinent to put the worthy Advocate-

General Khyber Pakhtunkhwa and Barrister Waqar

Ahmad Khan, to assist the Court, as friends of the

Court.

7. Mr. Shahid Orakzai submitted his submission

on the three legal queries, in writing, the particulars

thereof were; that the petitioner is not an informer in

the eyes of law, as he had not laid any information

before the Court in terms of section-11 of the

Contempt of Court Ordinance, 2003

(“Ordinance”); that he was a person connected

with the proceedings, of the Criminal Revision

Petition, wherein the alleged contempt had been

committed; that as far as the proceedings against the

worthy Chief Justice in contempt proceedings are

concerned, he sought reliance upon Articles 195,

196, 200, ,206, 207 and 209, of the Constitution of

Islamic Republic of Pakistan, 1973,

(“Constitution”), and contended that contempt

proceedings can be initiated against all, including

the worthy Chief Justice; and that finally, the main

factual basis of the petitioner’s complaint was that

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the very act of fixing the main Criminal Revision

before the worthy Chief Justice, was on direction of

the Prime Minister and intended for its dismissal and

thereby resulted in diverting the course of justice

and contempt of Court, as envisaged under section 6

of the Ordinance.

8. The worthy Advocate-General, Khyber

Pakhtunkhwa, at the very outset, submitted that the

Criminal Revision Petition was not maintainable, as

the petitioner was not a ‘Wali’, as envisaged under

section 305 of Pakistan Penal Code, 1860, (“PPC”);

that as far as the ‘locus standi’ of the petitioner to

file the present petition, the learned Advocate-

General emphasized that the petitioner was an

informer of the alleged contempt to the Court, and,

thereafter, was divested of any legal right to pursue

the same; that after the information was rendered to

the Court, it was between the Court and the

contemnor; that in fact, the State through the

Advocate-General was to prosecute the contemnor,

in case, the Court was to proceed in contempt

proceedings; that the authority of the worthy Chief

Justice to fix cases was beyond any doubt, as clearly

provided in the Peshawar High Court

(Establishment of Benches) Rules, 1982 (“Rules of

8

1982”) and the High Court Rules, Peshawar,

reliance was sought on the judgments in Malik

Hamid Sarfaraz’s case (PLD 1979 Supreme Court

991), Muhammad Ashraf’s case (PLD 1993

Peshawar 151), M.Aftab Saigal’s case (1994 MLD

1659), Mian Muhammad Nawaz Sharif’s case

(PLD 1995 Lahore 532), Humayun Khan’s case

(1998 PLC (C.S) 34), Supreme Court Bar

Association’s case (PLD 2002 Supreme Court

939), Ch:Muhammad Siddique’s case (PLD 2005

Supreme Court 186), Jaffar Hussain’s case (2008

CLC 1609), Shafiaq Ahmad’s case (PLD 2008

Peshawar 100), Federation of Pakistan’s case

(PLD 2009 Supreme Court 284), Muhammad

Iqbal’s case (2010 SCMR 632) and Mehr

Rehman’s case (2013 PLC (C.S)165).

9. Barrister Waqar Ali, in reference to the three

queries made by this Court contended that the

informer after informing the Court about the alleged

contempt was not an alien to the proceedings and

could pursue the same during the contempt

proceedings and even file an appeal against any

order passed by the Court, as envisaged under

section 19 of the Ordinance; that contempt of Court

could be initiated against a worthy Judge of High

9

Court; that finally, so far as the fixation of the

Criminal Revision Petition before the worthy Chief

Justice is concerned, he contended that the same was

in accordance with the High Court Rules and thus no

contempt of Court was committed by its fixation

before the worthy Chief Justice. In support of his

submissions, the worthy counsel sought reliance

upon various judgments of the superior courts

including Hakam Qureshi’s case (PLD 1976

Supreme Court 713), Muhammad Ibrahim’s case

(PLD 2000 Supreme Court 71), and Dr.Ali Sana

Shakir Bokhari’s case (2001 SCMR 519).

10. Valuable submissions of the petitioner,

Advocate General, Khyber Pakhtunkhwa, and

Barrister Waqar Ahmad Khan, were considered and

the findings of this Court on the three legal issues

enumerated hereinabove, are as follows, in seriatim.

LOCUS STANDI OF INFORMER.

11. This Court is not in consonance with the

contention of the petitioner that he is not an informer

but a person, who is aggrieved of the fixation of the

Criminal Revision Petition before the Chief Justice

of the Peshawar High Court, Peshawar.

The contempt proceedings are independent

proceedings, which may, inter-alia, be initiated by

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information rendered to the High Court. In the

present case, the petitioner, by filing the instant

contempt petition, became an informer of the

alleged contempt. As far as his status as a person,

aggrieved of the fixation of the Criminal Revision

Petition before the worthy Chief Justice is

concerned, passing any findings thereon, would

surely prejudice the contesting claims of the parties

in the said petition. Hence, this Court shall refrain

therefrom in the present contempt proceedings.

12. The status of an informer in a contempt

proceedings, has been exhaustively discussed by the

Apex Court in a case earlier moved by the present

petitioner titled Mr. Shahid Orakzai….vs..Pakistan

Muslim League (Nawaz Group) and eight others

(2000 SCMR 1969), wherein the Apex Court,

relying upon, inter-alia, its earlier judgments in

Chaudhry Zahoor Elahi’s case (PLD 1975 SC 383)

and Muhammad Ishaq’s case (PLD 1957 SC 293)

clearly held that:

“26. Mr. Shahid Orakzai, appellant, who

appeared in person, was heard for some time and

allowed ten minutes to conclude his submissions

keeping in view the fact that a contempt matter is

between the Court and the contemnor alone and a

stranger has nothing to do with such proceedings as

the role of an informer ends once the Court takes

the cognizance of the matter at his instance………

…………..….

32. Mr.Sayeed, placed reliance on the book titled

“Law of Contempt of Courts”, 1999 Edition by lyer,

revised by Justice S.K.Mukarji, at page 403 and

11

submitted that in a contempt case, the matter is

between the Court and the alleged contemnor and

the role of the person who moves the machinery of

the Court is restricted to bringing the matter to the

notice of the Court certain facts constituting

contempt of Court. Precisely, in a contempt

proceeding, there are only two parties, namely, the

Court and the contemnor and it may be one of the

reasons, which weighed with the Legislature for not

giving right of appeal in a contempt matter………..

…………….

34. It is important to note that the matter of

contempt of a Court is essentially between the Court

and the contemnor/s, therefore, it is up to the Court

whose contempt has been committed to take any

action against a contemnor or accept apology on his

behalf and even an Appellate Court cannot direct

such Court to proceed with the contempt or to reject

the apology. It may also be clarified that where a

third party (a stranger) brings to the notice of the

Court that contempt of that Court has been

committed, the Court can take notice on his

complaint/application. However, entertainment of

such application/complaint does not ipso facto give

that person the right to prosecute the contemnors on

behalf of the Court as had been claimed by Shahid

Orakzai in the present proceedings. From the

analysis of the case-law regarding the role of the

Attorney-General in contempt matters, reproduced

above, the matter is to be prosecuted by the learned

Attorney-General and once the Court has assumed

jurisdiction in such a matter, the Court is not bound

to hear the person moving the Court.”

In view of the clear enunciation of the

principle laid down by the Apex Court, it is by now

clear and settled that the informer, having brought to

the attention of the Court an alleged contempt of

Court is, thereafter, divested of any vested right to

pursue the same. The matter, thereafter, is

essentially between the Court and the accused-

contemnors. However, an exception to the above

principle has been introduced in the Ordinance,

wherein under subsection-2 of section-11, any

person laying false information relating to the

commission of an alleged judicial contempt shall

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himself be liable to be proceeded against for

contempt of Court.

13. Before parting with this issue, it would be

important to address the contention of Barrister

Waqar Ahmad Khan, that section-19 of the

Ordinance, does not restrict the right of appeal to

only the State or the person convicted of the offence

of contempt of Court, and hence the informer may

also file an appeal against the dismissal of the

contempt application. This Court is not in accord

with the said submission of the worthy counsel.

Right of appeal is a substantive right, and can only

be availed, if it is clearly and expressly provided

under the enabling statute. It is noted with concern,

that the legislature, while enacting Section-19 of the

Ordinance, only provided the forum of appeal,

without specifying the persons, who had the right of

appeal. This omission on the part of the legislature is

meaningful. However, the person, convicted of the

offence of contempt of Court, cannot be rendered

remediless. He and none other can move the

appellate forum in appeal against his conviction. In

case, the contempt petition is dismissed, the

proceedings are terminated and not even the State or

the informer can agitate the same in appeal.

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CONTEMPT PROCEEDINGS AGAINST

A JUDGE OF A HIGH COURT.

14. Earlier, our Courts were reluctant to initiate

contempt proceedings against a Judge of a High

Court, as the Judge was personified as the High

Court. This view was prominently reflected in the

judgments of the Superior Courts of our jurisdiction,

including Malik Feroz Khan Noon’s case (PLD

1958 S.C 333), Jamal Shah’s case (PLD 1966 S.C

01) Prakash Chand’s case (AIR 1998 S.C 1344)

and Mujeebur Rehman Shami’s case (PLD 1973

Lahore 778).

15. This Judicial reluctance has, with time, given

way to more introspection by the Superior Courts,

and recently contempt proceedings have been

initiated even against Judges of the Superior

Judiciary. In this regard, the leading decision was

taken by the Apex Court in Justice Hasnat Ahmed

Khan’s case (PLD 2011 S.C 680), wherein it laid

down that:

“54. The facts and circumstances which have been noted

hereinabove have to be examined in juxtaposition with the

facts and circumstances of the judgments relied upon by

Sheikh Zameer Hussain, Sr. Advocate Supreme Court as well

as Syed Ali Zafar, Advocate Supreme Court. Detailed study of

these judgments indicates that there is no comparison between

the facts of these cases and the facts of the instant case. In

none of those judgments any of the Judges intended to be

proceeded against for contempt for deviation from the

Constitutional Provisions, whereas, in the instant case, the

appellants instead of showing allegiance to Pakistan and to

preserve and protect the Constitution in terms of the oath,

opted to be obedient to one man rule, essentially without any

constitutional authority. If such practice is followed or allowed

14

to be followed, there will be no end to the Constitutional

deviations by the mighty persons; like one who has a gun in his

hand and sitting on horse’s back, capable of driving the herd

of sheep according to his command, not considering anyone as

human beings or persons having rights under the Constitution.

And no sooner the mischievous object of self service is

achieved by show of force, allegedly the situation would be

reversed as to the position prevailing prior to such deviation.

Then it would not be the rule of law but the rule of Martial

Law.

55. In view of above elaborated discussion

notwithstanding the observations of the learned 4-Member

Bench of this Court about initiating proceedings of contempt

of Court against the Judges of the Superior Courts, it is added

that contempt proceedings have been initiated against the

appellants and others in view of the peculiar circumstances

essentially for supporting the unconstitutional actions, deeds,

omissions and commissions committed by the then Chief of

Army Staff, prima facie instead of obeying to the judicial order

of the Supreme Court dated 3.11.2007 as it has been held in

the Sindh High Court Bar Association’s case. And as

validation, legitimacy has not been granted to the

unconstitutional acts of 3.11.2007 by the Parliament including

protection to the appellants to deviate from the constitutional

appointment and oath, therefore, it is held that from the date of

passing of Eighteenth Constitutional Amendment dated

20.4.2009 they are no more Judges of the High Courts under

the Constitution, thus no immunity is available to them either.

56. The plea of Sheikh Zamir Hussain, learned Sr.

Advocate Supreme Court that the actions of the appellants be

condoned, would tantamount to once again reverting back to

the doctrine of necessity, which has already been buried vide

judgment in Sindh High Court Bar Association’s case and if

such concession is extended to them, other beneficiaries, who

are responsible directly or indirectly for violation of the

Constitution, shall also be benefited, therefore, the plea is

declined.

57. The proposition of Mr. Ali Zafar, learned counsel that

writ cannot be issued by Judges against other Judges need not

be discussed in view of the conclusion drawn hereinabove, that

appellants had already been declared not to be the Judges of

the High Courts and secondly, there is difference between

issuing the writ by the Judges against each others and to issue

the Contempt proceedings for willful flouting or disregarding

the order dated 3.11.2007 in respect whereof 14-Member

Bench in the case of Sindh High Court Bar Association (ibid)

has held as follows:

“131. On a perusal of the aforesaid excerpts from the

print and the electronic media, we are left with no

manner of doubt that the order dated 3rd November,

2007 passed by a seven – member Bench of this Court

in Wajihuddin Ahmed’s case was widely covered both

in the electronic and print media. The fact that the

said order came fully in the knowledge of all Judges

of Supreme Court and High Courts by means of the

coverage in the electronic and print media is in line

with the law laid down in the case of Pakistan

Lawyers Forum v. Federation of Pakistan (PLD 2004

Lah. 130) wherein the following parameters for the

purpose of taking judicial notice of press reports,

quoted with approval by this Court in the case of

Watan Party (supra) were laid down:………………

……Thus, all the Judges knew that a restraint order

had been passed by the Supreme Court and also that

15

Abdul Hameed Dogar, J, and some other Judges had

made oath in violation of the said order. In fact, all

and sundry in the length and breadth of the country

knew about it. All such Judges, therefore, willfully

violated the order dated 3rd November, 2007 passed by

a seven member Bench of this Court in Wajihuddin

Ahmed’s case.”

16. When the provisions of the Ordinance are

carefully reviewed, it is noted that there is no

exclusion clause barring contempt proceedings

against a Judge of the Superior Judiciary. Moreover,

clause (c) of subsection-1 of Section-6 of the

Ordinance provides for the offence of a criminal

contempt as under:

“A criminal contempt shall be deemed to have been committed,

if a person

(a)….

(b)….

(c) Commits any other act with intent to divert the course of

justice.”

The aforementioned definition of a criminal

contempt of Court clearly envisages the commission

of the said offence by any person (including a

Judicial Officer), who acts with intent to divert the

course of justice.

Thus, if the allegations of Mr. Shahid Orakzai

are correct that the Criminal Revision Petition was

intentionally fixed by Mr. Justice Mazhar Alam

Khan Miankhel, on the instructions of Muhammad

Nawaz Sharif, before a Bench headed by him to

dismiss the same, then surely a contempt was

committed and this Court would be failing in its

16

legal duty, if cognizance is not taken and contempt

proceedings are not initiated against the nominated

contemnors.

WHETHER THE ALLEGATIONS

CONSTITUTE A CONTEMPT OF

COURT.

17. The main thrust of the petitioner’s allegations

is that Mr. Justice Qaiser Rashid Khan, had

adjourned the case on 01.09.2014 and rendered a

date by Court (05.09.2014) and thus the Criminal

Revision Petition ought to have been fixed on the

said fixed date before the same worthy Judge and

not before Mr. Justice Mazhar Alam Khan

Miankhel. The fallacy of the assertions is apparent

from the record. When we review the order sheets of

Criminal Revision Petition, it is noted that Mr.

Shahid Orakzai, earlier on 24.2.2014 objected to the

case being heard by Honourable Mr. Justice Qaiser

Rashid Khan, and had in fact requested that the case

be fixed before the present Bench. In the

circumstances, objecting to the petition being heard

by Mr. Justice Mazhar Alam Khan Miankhel, and

demanding that the same to have been heard by Mr.

Justice Qaiser Rashid Khan, is completely contrary

to the consistent stance taken by the present

petitioner.

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18. Having considered the inconsistency and the

self contradiction in the factual assertions made by

Mr. Shahid Orakzai, it would not be appropriate to

leave the matter without adjudging the legal aspect

of fixation of cases in the Peshawar High Court,

Peshawar. It is noted that the exclusive domain of

fixation of cases remains with the Chief Justice. It is

also an admitted position that a case fixed before a

Bench of the High Court is not necessarily fixed and

heard by the same Bench, even if the adjourning

Bench renders a date by Court.

The relevant provisions of The Peshawar

High Court Establishment of Benches Rules, 1982,

are as follows:

“Rule-7. The Chief Justice may transfer any

proceedings pending at the principal seat or a Bench

to another Bench or the principal seat of the High

Court……. ………

Rule-9. If at any time it is found expedient for the

efficient functioning of the principal seat or a Bench,

the Chief Justice may require any Judge to sit for

such period as may be determined by him at any

Bench, or the principal seat.”

Even the High Court Rules undisputedly

empowers the Chief Justice of the Peshawar High

Court, Peshawar, to fix any case before any Bench,

as he deems appropriate. In this regard, para-2,

chapter-3 B, Volume-V provides that:

“2. Roster of Single and Division Benches. The

Judges will sit singly or in Benches of two or more

18

Judges in accordance with a roster to be prepared by

the Deputy Registrar with the approval of the Chief

Justice from time to time.

19. The fixation of a case, before a particular

Bench, was objected and responded to in clear

terms by the full Court of the Supreme Court of

Pakistan, in Malik Hamid Sarfaraz’s case (PLD

1979 S.C 911), in terms that:

“It is the undisputed privilege and duty of the Chief

Justice, whether of a High Court or of the Supreme

Court, to constitute Benches for the hearing and

disposal of cases coming before his Court; and no

litigant or lawyer can be permitted to ask that his case

be heard by a Bench of his choice. Even though the

present petition may involve references to the decision

of this Court in the case of Begum Nusrat Bhutto,

mentioned by Mr. Mahmud’t Ali Qasuri, yet this is not

a petition for review of the judgment in that case. As

far as the question of interpretation of that judgment

is concerned, every Bench of this Court is competent

to undertake that exercise; and to suggest otherwise

amounts to an uncalled for reflection on the ability

and capacity of those Judges who did not sit on the

original Bench…….

“The suggestion that this Bench should not hear this

case as all the Judges comprising it are drawn from a

particular region of Pakistan, is most regrettable, and

even mischievous. The Judges of the superior Courts,

and particularly of the Supreme Court, do not think

on regional lines, nor do they decide matters on

parochial and provincial considerations. When we sit

on the Bench of the highest Court of the land, we are

constantly mindful of the fact that we must think, live

and act in terms that we are Pakistanis, and cases to

think and act as Panjabis, Sindhis, Pathans or

Balochis. Ever one of us is fully conscious of the great

responsibility that falls upon us do even-handed

justice to all citizens of Pakistan, irrespective of their

origin or domicile. Any suggestion or insinuation to

the contrary mug be condemned in the strongest

terms, and cannot be countenanced, even if it comes

from a gentleman of Mr.Qasuri’s standing at the

bar.”

20. The ratio decidendi of the aforementioned

judgment has been consistently followed by the

Superior Courts of our jurisdiction in Supreme

Court Bar Association’s Case (PLD 2002 SC 939)

19

and Mian Muhammad Nawaz Sharif’s case (PLD

1995 Lahore 532).

21. Interestingly, the worthy Supreme Court of

India, while considering a grievance of a worthy

Judge of the Rajasthan High Court against the

worthy Chief Justice of the Rajasthan High Court,

for not fixing the part heard case before worthy

Judge, was considered in Prakash Chand’s case

(AIR 1998 S.C 1344), wherein the authority of the

Chief Justice for fixation of cases and constitution of

Benches, was exhaustively discussed and finally

held that:

“15. A careful reading of the aforesaid provisions

of the Ordinance and Rule 54 (supra) shows that the

administrative control of the High Court vests in the

Chief Justices of the High Court alone and that it is

his prerogative to distribute business of the High

Court both judicial and administrative. He alone, has

the right and power to decide how the Benches of the

High Court are to be constituted; which Judge is to sit

alone and which cases he can and is required to hear

as also as to which Judges shall constitute a Division

Bench and what work those Benches shall do. In

other words the Judges of the High Court can sit

alone or in Division Benches and do such work only

as may be allotted to them by an order of or in

accordance with the directions of the Chief Justice.

…………………………

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 no 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

20

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.”

22. The crux of the matter is that Mr. Shahid

Orakzai had no legal vested right to demand the case

to be heard by a particular Bench and Mr. Justice

Mazhar Alam Khan Miankhel, being the Chief

Justice, could place the Criminal Revision Petition

before any Bench, as he deemed appropriate. And

finally, there was no rule mandating a case to be

fixed before the same Bench, which had adjourned

the case by rendering a future date of hearing.

23. What is also pertinent to note is that apart

from the bold allegations, Mr. Shahid Orakzai has

not provided any direct or indirect evidence to

support the same. The record is also completely

silent regarding Mr. Justice Mazhar Alam Khan

Miankhel, receiving any directions of the Prime

Minister of Pakistan, much less for dismissing the

Criminal Revision Petition and thereby diverting the

course of justice and committing a contempt of

Court. Moreover, Courts are not to assume

jurisdiction for initiation of contempt proceedings

on mere apprehension of the informer regarding the

alleged contemptuous conduct.

21

24. In view of the above legal discourse, this

Court finds that the contempt application was not

legally maintainable and was in fact devoid of any

factual basis.

25. As the allegations leveled struck at the very

heart of independence of judiciary, Mr. Shahid

Orakzai was provided ample opportunity to plead

his case and to provide any supporting evidence to

his assertions. The Court went a step further in its

restrain, so as to avoid any strain of bias that could

be imputed upon the present proceedings. But no

evidence of any nature, whatsoever, was brought to

the attention of the Court, so as to even make out a

prima facie case, for this Court to issue the notices

to the alleged contemnors.

26. This Court is alive to the rationale behind

proceedings for contempt of Court; it is not the

vindication of the person of the Judge, but a shield

to protect the Courts from baseless abuse and

wanton attack and most importantly to maintain the

confidence of the people in the administration of

justice, the dignity, authority and majesty of the

Courts. All are to guard and preserve the same, as it

is mandated in the Preamble and flowing through

the Constitution.

22

27. Once, this Court came to the conclusion that

the contempt petition was bereft of merit and had

scandalized the High Court, by falsely imputing

upon the independence and impartiality of the

Judiciary, Mr. Shahid Orakzai was provided time to

reconsider his stance, for which the Court took a

recess. On resuming the proceedings, the Court

again asked Mr. Shahid Orakzai to substantiate his

factual and legal basis of filing the instant contempt

petition. Again, his response was that he has filed

the petition duly supported by an affidavit, which

was sufficient for initiating contempt proceedings.

28. When the petitioner despite being provided

ample opportunity to substantiate his assertions and

was clearly made to understand that on his failure to

substantiate his allegations, he himself would face

conviction for scandalizing the Court, thereafter, his

insistence that all that he had mentioned in his

petition was enough to proceed in contempt, left no

option to this Court, but to proceed against Mr.

Shahid Orakzai in contempt of Court.

29. The Constitutional basis for the High Court to

proceed against any person in Contempt of Court is

embedded in Article 204 of the Constitution of

23

Islamic Republic of Pakistan, 1973, which reads, as

under:

“204. Contempt of Court (1) In this

Article, “Court” means the

Supreme Court or a High Court.

(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 disobey 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.

(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.”

(emphasis provided)

30. The spirit behind vesting a High Court, the

authority to proceed in contempt of Court under

Article 204 of the Constitution is to ensure the

public confidence in the administration of justice,

and maintaining the dignity, authority and majesty

of the Supreme Court or High Courts.

31. The conduct of Shahid Orakzai throughout the

proceedings and culminating when he refused to

provide any further evidence in support of his

24

assertions clearly brings him within the act

envisaged under clause-b of sub-Article-2 of Article-

204 of the Constitution. In such circumstances,

when the contempt is of a High Court, it may

proceed against the contemnor, but always providing

the contemnor opportunity to defend himself in a

meaningful manner, without prejudicing his defence.

This legal issue came up before the Apex Court in

Khalid Masood’s case (PLD 1996 SC 42), wherein

his lordship Ajmal Mian, J, as he then was,

explained the matter referring to the provisions of

Contempt of Courts Act, 1976, which is in fact para-

materia with the Ordinance, in terms that:

“3. Indeed in the above-quoted clause (3), it has

been provided that 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, but, in my view, it does not mean

that a statute can control or curtail the power

conferred on the superior Courts by this Article,

nor it means that in the absence of a statute on

the above subject, the above Article will be

inoperative. The law referred to in clause (3) of

the above Article relates to procedural matters or

matters which have not been provided for

therein,----Though the Preamble to the Contempt

of Courts Act, 1976 (hereinafter referred to as

the Act) purports that the Act has been enacted

pursuant to above Article 204 of the Constitution,

but factually, it is not confined to the Supreme

Court and the High Courts and covers all Courts

including subordinate Courts as is evident from

the definitions of the terms “Judge” and

“judicial proceedings” given in clauses (a) and

(b) of section 2 of the Act and of the definition of

the expression “Contempt of Court” provided for

in section 3 thereof. In the case in hand, it is not

necessary to examine the question, whether any

provision of the Act is in conflict with the above

Article. The above question may be examined in

an appropriate case.”

25

32. When confronted with the baseless, bold,

scandalous allegations against the independence of

Judiciary and that too by a person, who refused,

despite being provided ample opportunity, to furnish

any evidence in support of his allegations and, as

stated earlier, he was made to understand that in case

he failed to provide evidence to back his assertions

in the petition, he would expose himself to penal

consequences of contempt of Court, left no room for

this Court to further expose and prolong the matter.

Moreso, when the petitioner refused to retract or

apologize for his conduct. In essence, substantial

compliance of notice and opportunity to substantiate

the allegations were duly provided to Shahid

Orakzai. He was, thus convicted for contempt of

Court and sentenced to simple imprisonment for 24

hours.

33. The above are the reasons for the short order

dated 29.12.2014, which read as under:

“For reasons to be recorded later on, the

contempt application filed by Shahid

Orakzai being bereft of merit is dismissed.

At this stage, the Court asked Shahid

Orakzai, whether he would resile from his

stance and tender an apology for the scandalous

and contemptuous assertions made in the

application against the Chief Justice of

Peshawar High Court. He refused.

26

Accordingly, Shahid Orakzai, has

committed contempt of this Court, therefore,

this Court convicts and sentences him to twenty

four (24) hours simple imprisonment. Shahid

Orakzai is present in Court, he be taken into

custody and sent to jail to undergo the

imprisonment.”

Dt.29.12.2014.

JUDGE

*M.Gul*