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Wednesday, May 09, 2012

PM Gillani Contempt of Court Final Judgement

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Here is full text of judgment of the Supreme Court of Pakistan in Case No.6/2012. According to the judgment, SC has identified the reasons of contempt to court be the PM (convicted) Syed Yousuf Rasa Gillani.


IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE NASIR-UL-MULK
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE SARMAD JALAL OSMANY
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE GULZAR AHMED
MR. JUSTICE MUHAMMAD ATHER SAEED
CRIMINAL ORIGINAL PETITION NO. 06 OF 2012
IN
SUO MOTU CASE NO. 04 OF 2010
(Contempt proceedings against Syed Yousaf Raza
Gillani, the Prime Minister of Pakistan regarding
non-compliance of this Court’s order dated
16.12.2009)
For the Prosecution: Mr. Irfan Qadir, Prosecutor/
Attorney-General for Pakistan
For the Respondent: Barrister Aitzaz Ahsan, Sr. ASC,
assisted by Barrister Gohar Ali Khan,
Mr. Shaukat Ali Javid, Mr. Shahid
Saeed, Mr. Kashif Malik, Mr. Bilal
Khokar, Ms. Zunaira Fayyaz, Ms.
Ayesha Malik, Mr. Fahad Usman, Mr.
Tayyab Jan, Ch. Babras, Advocates
with Mr. M. S. Khattak, AOR
Dates of Hearing: 19.01.2012, 01.02.2012, 02.02.2012,
13.02.2012, 22.02.2012, 28.02.2012,
07.03.2012, 08.03.2012, 21.03.2012,
22.03.2012, 26.03.2012, 27.03.2012,
12.04.2012, 13.04.2012, 16.04.2012,
17.04.2012, 18.04.2012, 19.04.2012,
20.04.2012, 24.04.2012 and
26.04.2012
Crl.O.P.6/12 2
JUDGMENT
NASIR-UL-MULK, J.— These proceedings for
contempt of Court initiated against Syed Yousaf Raza Gillani,
the Prime Minister of Pakistan, emanate from non-compliance
with the directions given by this Court to the Federal
Government in Paragraphs No.177 and 178 in the case of
DR. MOBASHIR HASSAN v FEDERATION OF PAKISTAN ( PLD
2010 SC 265 ) for the revival of the request, withdrawn by
the former Attorney-General, Malik Muhammad Qayyum, to
be a civil party in a money laundering case in Switzerland. To
understand the context in which the said directions were
given by this Court, it is inevitable to state some material
facts.
2. It was in the fall of 1997 when the then Attorney-
General for Pakistan wrote a letter to the Swiss Authorities
investigating a money laundering case involving commissions
and kickbacks paid by two Swiss Companies, COTECNA &
SGS, in contracts granted to them by the Government of
Pakistan. The Attorney-General requested that the
Government of Pakistan be made a civil party in those
proceedings so that in the event the payments of commissions
and kickbacks were proved the amount be returned to the
Government of Pakistan being its rightful claimant, with a
further request for mutual legal assistance for the
prosecution of such cases pending in the Courts in Pakistan.
The request was granted. It is not necessary for the purpose
Crl.O.P.6/12 3
of the present proceedings to give further details of the
proceedings held in Switzerland. Of relevance is the fact that
the proceedings were still pending when on 15.10.2007 the
President of Pakistan promulgated an Ordinance called “The
National Reconciliation Ordinance 2007” (now commonly
referred to as “the NRO”). The stated purpose for the
promulgation of the Ordinance was “……to promote national
reconciliation, foster mutual trust and confidence amongst
holders of public office and remove the vestiges of political
vendetta and victimization, to make the election process more
transparent and to amend certain laws for that purpose and
for matters connected therewith and ancillary thereto;” Broadly
speaking, the Ordinance was designed to close investigation
and prosecution of certain categories of cases pending before
any of the investigation agencies and the Courts. Of
significance for the present proceedings is Section 7 of the
Ordinance which reads:-
“7. Insertion of new section, Ordinance
XVIII of 1999.- In the said Ordinance, after
section 33E, the following new section shall
be inserted, namely:-
“33-F. Withdrawal and termination of
prolonged pending proceedings
initiated prior to 12th October, 1999.—
(1) Notwithstanding any thing
contained in this Ordinance or any
other law for the time being in force,
proceedings under investigation or
pending in any court including a High
Crl.O.P.6/12 4
Court and the Supreme Court of
Pakistan initiated by or on a reference
by the National Accountability Bureau
inside or outside Pakistan including
proceedings continued under section
33, requests for mutual assistance
and civil party to proceedings
initiated by the Federal Government
before the 12th day of October, 1999
against holders of public office stand
withdrawn and terminated with
immediate effect and such holders of
public office shall also not be liable to
any action in future as well under this
Ordinance for acts having been done in
good faith before the said date:
Provided………………………………….”
3. The Ordinance and its various provisions were
immediately challenged directly before this Court in a number
of petitions filed under Article 184(3) of the Constitution.
While those cases were pending, the then Attorney-General
for Pakistan, Malik Muhammad Qayyum, in the light of the
promulgation of NRO, addressed a letter on 09.03.2008 to the
Attorney-General of Geneva for withdrawal of proceedings.
The letter has been reproduced in Paragraph No. 124 of the
judgment in DR. MOBASHIR HASSAN’s case and because of
its relevance to the present proceedings, its contents are
restated:-
“Dear Mr. Attorney-General,
We write you further to our meeting of 7 April
2008.
Crl.O.P.6/12 5
We hereby confirm that the Republic of
Pakistan having not suffered any damage
withdraws in capacity of civil party not only
against Mr. Asif Ali Zardari but also
against Mr. Jens Schlegelmich and any
other third party concerned by these
proceedings. This withdrawal is effective for
the above captioned proceedings as well as
for any other proceedings possibly initiated in
Switzerland (national or further to
international judicial assistance). The
Republic of Pakistan thus confirms entirely
the withdrawal of its request of judicial
assistance and its complements, object of the
proceedings CP/289/97.
Request for mutual assistance made by the
then government, which already stand
withdrawn, was politically motivated.
Contract was awarded to reshipment
inspection companies in good faith in
discharge of official functions by the State
functionaries in accordance with rules.
The Republic of Pakistan further confirms
having withdrawn itself as a damaged party
and apologizes for the inconvenience caused
to the Swiss authorities.
Your sincerely,
Sd/-
Malik Muhammad Qayyum
Attorney-General for
Pakistan.”
4. On 16.12.2009 this Court in the case of DR.
MOBASHIR HASSAN (ibid) declared the NRO void ab initio as
Crl.O.P.6/12 6
a whole, particularly, Sections 2, 6 and 7 thereof, being ultra
vires and violative of various Articles of the Constitution. It
further declared that the Ordinance shall be deemed non est
from the day of its promulgation and “as a consequence
whereof all steps taken, actions suffered, and all orders
passed by whatever authority, any orders passed by the
Courts of law including the orders of discharge and acquittals
recorded in favour of accused persons, are also declared never
to have existed in the eyes of law and resultantly of no legal
effect”. It was further held that all proceedings terminated in
view of Section 7 of NRO, shall stand revived and relegated to
the status of pre-5th of October, 2007 position. As to the letter
written by Malik Muhammad Qayyum, the then Attorney-
General for Pakistan, dated 09.03.2008 to the Attorney-
General of Geneva, reproduced above, it was declared in
Paragraph No. 177 of the judgment:
“Since in view of the provisions of Article
100(3) of the Constitution, the Attorney
General for Pakistan could not have suffered
any act not assigned to him by the Federal
Government or not authorized by the said
Government and since no order or authority
had been shown to us under which the then
learned Attorney General namely Malik
Muhammad Qayyum had been authorized to
address communications to various
authorities/courts in foreign counties
including Switzerland, therefore, such
communications addressed by him
Crl.O.P.6/12 7
withdrawing the requests for mutual legal
assistance or abandoning the status of a civil
party in such proceedings abroad or which
had culminated in the termination of
proceedings before the competent fora in
Switzerland or other countries or in
abandonment of the claim of the Government
of Pakistan to huge amounts of allegedly
laundered moneys, are declared to be
unauthorized, unconstitutional and illegal
acts of the said Makik Muhammad Qayyum.”
5. As a consequence of the above declaration that
Malik Muhammad Qayyum was never authorized to send
communication to the Attorney-General of Geneva, the Court
gave the following direction in Paragraph No. 178 of the
judgment:-
“Since the NRO, 2007 stands declared void
ab initio, therefore, any actions taken or
suffered under the said law are also non est
in law and since the communications
addressed by Malik Muhammad Qayyum to
various foreign fora/authorities/courts
withdrawing the requests earlier made by the
Government of Pakistan for mutual legal
assistance; surrendering the status of civil
party; abandoning the claims to the allegedly
laundered moneys lying in foreign countries
including Switzerland, have also been
declared by us to be unauthorized and illegal
communications and consequently of no legal
effect, therefore, it is declared that the initial
requests for mutual legal assistance; securing
the status of civil party and the claim lodged
Crl.O.P.6/12 8
to the allegedly laundered moneys lying in
foreign countries including Switzerland are
declared never to have been withdrawn.
Therefore, the Federal Government and
other concerned authorities are ordered
to take immediate steps to seek revival of
the said requests, claims and status.”
6. Despite the above clear declaration and categorical
direction given by this Court on 16.12.2009, the Federal
Government took no steps, whatsoever, towards
implementation of the order. It was not until 29.3.2010 that a
Bench of this Court, headed by the Hon’ble Chief Justice,
while taking suo motu notice of a news item regarding
promotion of one Ahmed Riaz Sheikh an NRO beneficiary as
head of the Economic Crime Wing of the Federal Investigation
Agency (FIA) notice was taken of non-implementation of the
various directions given in DR. MOBASHIR HASSAN’s case.
The Court, therefore, in strong terms directed compliance
regarding steps for revival of the cases, including those
outside the country.
7. To understand why the present action was initiated
against the Prime Minister of the country, it is necessary to
mention some of the many orders passed by this Court for the
implementation of the said direction. The matter was again
taken up by the Court on 30.03.2010 when the then Secretary,
Ministry of Law, Justice & Parliamentary Affairs, Mr. Justice
(Retd) Aqil Mirza, was summoned to the Court and questioned
Crl.O.P.6/12 9
about the delay in the implementation. He sought time to
furnish reply and on 31.03.2010 reports were submitted on
behalf of the Ministry of Law, Justice & Parliamentary Affairs
as well as the National Accountability Bureau (NAB). Copies of
the reports were handed over to Mr. Anwar Mansoor Khan, the
then Attorney-General for Pakistan, who sought time to go
through the same and “appraise the Court with regard to the
compliance of the judgment in letter and spirit”. On 01.04.2010
the Court was informed that a letter was written to the Swiss
Authorities by the Chairman NAB. The Court, however, was of
the view that a request for being civil/damaged party to the
proceedings in Switzerland shall be made by the Government
of Pakistan, keeping in view the relations in between the
sovereign States and by following the procedure adopted
earlier. The direction was given in the morning and the matter
was adjourned to the afternoon of the same day for a positive
response. However, when the Attorney-General appeared at
1.30 p.m., he revealed that “he did his best to have access to
the record of the case lying with Ministry of Law, Justice &
Parliamentary Affairs, but Mr. Babar Awan, Minister of the
Ministry, was not allowing him to lay hands on the same for one
or the other reason.” Upon this statement, the Court
summoned the Secretary, Ministry for Law, Justice &
Parliamentary Affairs, the same day, who informed the Court
that he had received three sealed envelopes from the Foreign
Office, one addressed to him, the other two containing some
Crl.O.P.6/12 10
material for the Attorney-General, Switzerland and another
functionary. In the letter addressed to him opinion was sought
regarding sending of the envelopes through Diplomatic Bags to
Switzerland. That he kept the two envelopes at home in safe
custody and was yet to form an opinion on the matter. Upon
this disclosure, the Court observed:-
“….we have noted with great pain that,
prima facie, the functionaries of the Law
Department are not really interested to
implement the judgment of this Court,
because no sooner Secretary, Law received
directions of this Court, they should have
contacted the Attorney General as well as to
Chairman, NAB to process the cases, during
course of the day, when now it is already
4.00 pm rather he had left his house for office
and kept those envelops in safe custody over
there. Be that as it may, we direct the
Secretary, Law to start process now and
complete the same according to law and the
diplomatic relations, following the procedure,
which was followed when the reference was
filed in 1997 and submit report in this behalf.
In the meantime, learned Attorney General
and Mr. Abid Zubairi, ASC shall remain in
contact with him and provide whatever
assistance they can extend to him.”
8. The Court ordered the Attorney-General for
Pakistan and Mr. Abid Zubairi, learned ASC for the NAB, to
submit report to the Registrar of the Court to the effect “that
request for opening of Swiss cases has been forwarded
Crl.O.P.6/12 11
accordingly and no lacuna is left therein;” No such report was
ever submitted. Rather, Mr. Anwar Mansoor Khan resigned
from the office of the Attorney-General for Pakistan.
9. The matter of implementation of the judgment,
thereafter, was placed before another Bench of this Court on
29.4.2010. On the said date, the Deputy Attorney-General
appeared on behalf of the Federation, who knew next to
nothing of the case. After a few adjournments when no
progress was in sight, the Secretary, Ministry of Law, Justice
& Parliamentary Affairs, was summoned by the Court for
13.05.2010. By then, Moulvi Anwar-ul-Haq, had taken over as
Attorney-General for Pakistan, who informed the Court that
the Secretary was indisposed at Lahore. Instead of turning up
in Court the following day, he sent an application by fax from
Lahore that he could not attend the Court as he had
undergone a surgery and that he has resigned from his office.
After Mr. Anwar Mansoor Khan, this was the second casualty
of the implementation process.
10. In view of the above situation when no clear
statement on behalf of the Government was forthcoming, the
Court felt constrained to call the Minister for Law, Justice &
Parliamentary Affairs. The then Minister, Mr. Babar Awan,
appeared on 25.05.2010 and after making detailed
representation, informed the Court that a summary has
already been prepared and presented to the Prime Minister of
Pakistan regarding implementation of the judgment relating to,
Crl.O.P.6/12 12
inter-alia, revival of the Government’s request to the Swiss
Authorities. He was directed to file concise statement with the
observation that it was “clarified that the concise statement
shall specify expressly the steps taken for the implementation of
the afore-mentioned judgment.”
11. With the concise statement filed on behalf of the
Federal Government, reference was made to the observation
given by the Prime Minister on the Summary presented to him
by the Ministry of Law, Justice & Parliamentary Affairs, and
the same was reproduced in the order of this Court dated
10.06.2010 “The Prime Minister has observed that Ministry of
Law, Justice and Parliamentary Affairs has not given any
specific views in the matter, as per Rules of Business, 1973.
However, under the circumstances, the prime Minister has been
pleased to direct that the Law Ministry may continue with the
stance taken in this case.” Since the observation of the Prime
Minister indicated that there was no specific view presented by
the Ministry of Law, Justice & Parliamentary Affairs, we,
therefore, directed that the very Summary, on which the
observations were made, be placed before the Court. Upon
perusal of the Summary on 11.06.2010 the Court found that
the proposal made to the Prime Minister was not for the
implementation of Paragraph No. 178 of the judgment in DR.
MOBASHIR HASSAN’s case but rather for its nonimplementation.
The Court, therefore, ordered that the said
Summary be totally ignored and a fresh one be submitted by
Crl.O.P.6/12 13
the next date of hearing in terms of Paragraph No. 178. We
were, however, disappointed when on the following day, we
were informed by the Attorney-General for Pakistan that no
summary at all was presented to the Prime Minister pursuant
to our orders. Thereafter, these implementation proceedings
were suspended by a larger Bench of this Court, hearing a
petition filed by the Federation for review of the judgment in
DR. MUBASHIR HASSAN’s case.
12. The review petition was dismissed on 25.11.2011
by a short order, detailed judgment whereof is reported as
FEDERATION OF PAKISTAN v. DR. MUBASHIR HASSAN (PLD
2012 SC 106). The grounds taken up in the review petition
are reproduced in the review judgment, two of which, Nos. XII
and XIV, relate to Paragraph No. 178 of the judgment under
review. In Paragraph No. 11 of the review judgment, reference
was made to the submissions made on behalf of the Federal
Government, including those relating to the said Paragraph
No. 178. The argument, regarding the said Paragraph, was
taken note of in Paragraph No. 14 of the review judgment and
rejected. The short order in the review petition has been
reproduced in the final judgment, which concludes with the
direction that “the concerned authorities are hereby directed to
comply with the judgment dated 16.12.2009 in letter and spirit
without any further delay.”
13. After dismissal of the review petition,
implementation of the judgment in DR. MOBASHIR HASSAN’s
Crl.O.P.6/12 14
case (ibid), with particular reference to Paragraph No. 178
thereof, was placed before a five-member Bench. The matter
came up for hearing on 3.1.2012 and when the Attorney-
General for Pakistan was asked as to whether any summary
was submitted to the Prime Minister of Pakistan pursuant to
the earlier order of 5.7.2010, the Attorney-General expressed
his ignorance of any such development and, thus, the case
was adjourned to 10.1.2012. When no positive response came
from the Attorney-General for Pakistan, the Court passed a
twelve pages order recapitulating the history of the
implementation process and mentioned six options, besides
others, which the Court could exercise for implementation of
the judgment. The one that was eventually adopted in the first
instance culminating in the present contempt proceedings was
Option No.2 which states:-
“Proceedings may be initiated against the
Chief Executive of the Federation, i.e. the
Prime Minister, the Federal Minister for Law,
Justice and Human Rights Division and the
Federal Secretary Law, Justice and Human
Rights Division for committing contempt of this
Court by persistently, obstinately and
contumaciously resisting, failing or refusing to
implement or execute in full the directions
issued by this Court in its judgment delivered
in the case of Dr. Mobashir Hassan (supra)..”
14. The Attorney-General for Pakistan was put on
notice “….to address arguments before this Court on the
following date of hearing, after obtaining instructions from those
Crl.O.P.6/12 15
concerned, as to why any of the mentioned options may not be
exercised by the Court”. It further issued a general notice that
“any person likely to be affected by exercise of the above
mentioned options may appear before this Court on the next
date of hearing and address this Court in the relevant regard so
that he may not be able to complain in future that he had been
condemned by this Court unheard.” The Attorney-General was
further directed to inform all such persons mentioned in the
order about its passage and of the next date of hearing. On the
suggestion of the five-member Bench the Hon’ble Chief Justice
enlarged its strength to seven.
15. On 16.1.2012, the Attorney-General for Pakistan
appeared and informed the Court that the order of 10.1.2012
was communicated to all the relevant persons and the
Authorities mentioned therein, including the President of
Pakistan and the Prime Minister, but he had not received any
instruction to be communicated to the Court. It was in these
circumstances that the Court felt that it was left with no
option but to issue show cause notice to the Respondent, the
Prime Minister of Pakistan, under Article 204 of the
Constitution of the Islamic Republic of Pakistan read with
Section 17 of the Contempt of Court Ordinance (V of 2003), as
to why he shall not be held in contempt of this Court. The
Respondent (Prime Minister of Pakistan) appeared and
personally addressed the Court generally, defended his
inaction by referring to the immunity of the President of
Crl.O.P.6/12 16
Pakistan and having acted on the advice tendered to him in
the ordinary course of business. After granting preliminary
hearing to the Respondent in terms of Section 17(3) of the
Ordinance and hearing his learned counsel Barrister Aitzaz
Ahsan, Sr. ASC, we decided that it was in the interest of
justice to proceed against the Respondent in the contempt
proceedings and framed the following charge:-
“That you, Syed Yousaf Raza Gillani, the
Prime Minister of Pakistan, have willfully
flouted, disregarded and disobeyed the
direction given by this Court in Para 178 in
the case of “Dr. Mobashir Hassan v
Federation of Pakistan (PLD 2010 SC 265)”
to revive the request by the Government of
Pakistan for mutual legal assistance and
status of civil party and the claims lodged to
the allegedly laundered moneys lying in
foreign countries, including Switzerland,
which were unauthorizedly withdrawn by
communication by Malik Muhammad
Qayyum, former Attorney General for
Pakistan to the concerned authorities, which
direction you were legally bound to obey and
thereby committed contempt of court within
the meanings of Article 204(2) of the
Constitution of Islamic Republic of Pakistan
1973 read with Section 3 of the Contempt of
Court Ordinance (Ordinance V of 2003),
punishable under Section 5 of the Ordinance
and within the cognizance of this Court. We
hereby direct that you be tried by this Court
on the above said charge.”
Crl.O.P.6/12 17
16. Moulvi Anwar-ul-Haq, leaned Attorney-General for
Pakistan, was appointed to prosecute the Respondent. On
behalf of the prosecution, the Attorney-General tendered in
evidence documents comprising the judgments in DR.
MOBASHIR HASSAN’s case as well as in the review petition
and all the orders passed from time to time relating to
implementation of the judgment (Ex.P1 to P40). The
Respondent in his defence produced only one witness, Ms.
Nargis Sethi (D.W.1) who had remained the Principal Secretary
to the Prime Minister during the relevant period. She tendered
in defence two Summaries, Ex.D/1 dated 21.5.2010 and
Ex.D/2 dated 21.9.2010, along with documents appended with
the Summaries submitted to the Prime Minister. The Prime
Minister opted not to testify on oath but put up his defence
through a written statement unaccompanied by his affidavit.
17. After recording of the evidence was completed and
the learned counsel for the defence started his arguments, we
were informed that Maulvi Anwar-ul-Haq had resigned as
Attorney-General for Pakistan and in his place, the Federal
Government appointed Mr. Irfan Qadir who then took over the
prosecution.
18. The learned counsel appearing for the
Respondent, raised a preliminary objection to the very trial of
contempt by this Bench on the ground that since it initiated
the proceedings suo motu, issued show cause notice and
framed charge, it no longer remained competent to proceed
Crl.O.P.6/12 18
with the trial, for to do so would be in violation of the
principle of ‘fair trial’ now guaranteed as a fundamental right
under Article 10A incorporated in the Constitution by the
Constitution (Eighteenth Amendment) Act, 2010. For the sake
of facility, Article 10A reads:
“10A. For the determination of his civil
rights and obligations or in any criminal
charge against him a person shall be entitled
to a fair trial and due process.”
19. The learned counsel maintained that the principle
of ‘fair trial’ must fulfill two conditions, firstly that ‘no one
shall be condemned unheard’ and secondly that ‘a person
cannot be a judge in his own cause’. Basing his argument on
second condition, it was contended that this Bench having
already formed an opinion, even if prima facie, about the
culpability of the Respondent, it was no longer competent to
proceed with the trial. He clarified that it was not a question
of recusal by the members of the Bench but that of their
disqualification to sit in trial and give judgment. Emphasizing
the importance of incorporation of Article 10A in the
Constitution, the learned counsel maintained that it had
brought about a radical change in the scope of the law
relating to determination of civil rights and obligations as well
as criminal charge, ensuring that every person shall be
entitled to ‘fair trial and due process’. He pointed out that
whereas many other fundamental rights enshrined in the
Constitution had been made subject to law, such limits have
Crl.O.P.6/12 19
not been imposed on the fundamental right under Article
10A. Further drawing distinction between Article 4 and Article
10A of the Constitution, it was argued that the former
provision entitles every person to be treated in accordance
with the law as it exists, whereas the latter confers a
Constitutional right upon the individuals to a ‘fair trial’
regardless of, and notwithstanding, any provision in a subconstitutional
law. That trial by this Bench will be in accord
with the Contempt of Court Ordinance and would thus fulfill
the requirements of Article 4 but would be void in view of
Article 10A for it offends the principle of ‘fair trial’. That while
admitting that the principle of the right to a ‘fair trial’ was
already well entrenched in our jurisprudence, the learned
counsel argued that Article 10A had graduated the rule to a
higher pedestal of a fundamental right guaranteed by the
Constitution. Conceding that under the ordinary law, there
was an exception to the rule that ‘no man can be a judge in
his own cause’, allowing a Judge, who takes suo motu notice
of contempt, to try a contemnor, he contended that the
exception is no longer valid after the introduction of Article
10A.
20. On the question as to whether the provisions of
the Contempt of Court Ordinance, 2003 allowing the trial of
contempt by a Judge, who issues notice and frames charge,
can be challenged in collateral proceedings without a frontal
attack through separate proceedings, the learned counsel
Crl.O.P.6/12 20
submitted that if an existing law is void being inconsistent
with any of the fundamental rights, enshrined in the
Constitution, it must be ignored, for it becomes unenforceable
in view of Article 8(1) of the Constitution. To substantiate this
argument, reliance was placed upon the cases of FAUJI
FOUNDATION v. SHAMIMUR REHMAN ( PLD 1983 SC 457 ),
SAIYYID ABUL A’LA MAUDOODI AND OTHERS v. THE
GOVERNMENT OF WEST PAKISTAN AND OTHERS ( PLD 1964
SC 673 ), MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY,
CHIEF JUSTICE OF PAKISTAN v. THE PRESIDENT OF
PAKISTAN ( PLD 2007 SC 578 ), CHIEF JUSTICE OF
PAKISTAN, MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY
v. THE PRESIDENT OF PAKISTAN ( PLD 2010 SC 61 ), SINDH
HIGH COURT BAR ASSOCIATION v. FEDERATION OF
PAKISTAN ( PLD 2009 SC 879 ), MIR MUHAMMAD IDRIS AND
OTHERS v. FEDERATION OF PAKISTAN ( PLD 2011 SC 213 ),
MUHAMMAD MUBEEN-US-SALAM v. FEDERATION OF
PAKISTAN ( PLD 2006 SC 602 ).
21. When it was pointed out to the learned counsel
that he has not referred to any particular provision of the
Contempt of Court Ordinance 2003, being inconsistent with
Article 10A of the Constitution, the learned counsel submitted
that the longstanding practice of the Court allowing a Bench
taking suo motu notice, to try the contemnor is ‘usage having
the force of law’ within the meaning of Article 8 of the
Constitution. Reference was made to the definition of the
Crl.O.P.6/12 21
word ‘usage’, in Black’s Law Dictionary, Wharton’s Law
Lexicon and Shorter Oxford English Dictionary. Furthermore
that Article 10A is to be read into the Ordinance to provide for
an omission therein so as to bring it in conformity with the
said fundamental right. That the stipulation in Section 11(3)
of the Ordinance barring a Judge, who initiates proceedings
for ‘judicial contempt’ as defined in the Ordinance, to try the
contemnor, shall also be read into Section 12 of the
Ordinance relating to proceedings in case of a ‘civil contempt’.
To substantiate his arguments that this Court has in the past
read into statutes omission made therein on the principle of
casus omissus, the learned counsel cited the cases of ALJEHAD
TRUST v. FEDERATION OF PAKISTAN ( PLD 1996 SC
324 ), KHAN ASFANDYAR WALI v. FEDERATION OF
PAKISTAN ( PLD 2001 607 ). He also referred to the interim
order in the case of NADEEM AHMED v. THE FEDERATION OF
PAKISTAN (Constitution Petition No. 11 of 2010 etc.),
where this Court while referring certain proposals to the
Parliament regarding the new procedure laid down under
Article 175A in the Constitution for the appointment of
Judges in the superior Courts, gave certain directions for
appointments during the interregnum. In the same context
reference was also made to MD. SONAFAR ALI v. THE STATE (
1969 SCMR 460 ).
22. The learned counsel maintained that a
fundamental right can neither be surrendered nor waived. For
Crl.O.P.6/12 22
this proposition he placed reliance upon GOVERNMENT OF
PAKISTAN v. SYED AKHLAQUE HUSSAIN (PLD 1965 SC 527),
PAKISTAN MUSLIM LEGUE (N) v. FEDERATION OF PAKISTAN
( PLD 2007 SC 642 ) and OLGA TELLIS v. BOMBAY
MUNICIPAL CORPORATION ( AIR 1986 SC 180 ),
COMMISSIONER OF INCOME TAX PATIALA v. M/S
ROADMASTER INDS. OF INDIA ( AIR 2000 SC 1401 ). That in
any case the Respondent objected to his trial by this Bench
after the charge was framed when the trial commenced.
Additionally it was argued that ‘due process’ under Article
10A requires that a person can only be tried by a competent
Court or Tribunal and this Bench being not competent to try
the Respondent, the trial militates against the principle of
‘due process’. Reference in this context was made to the cases
of SHARAF FARIDI v. THE FEDERATION OF ISLAMIC
REPUBLIC OF PAKISTAN ( PLD 1989 Kar 404 ),
GOVERNMENT OF BALOCHISTAN v. AZIZULLAH MEMON (
PLD 1993 SC 341 ) and AL-JEHAD TRUST v. FEDERATION
OF PAKISTAN (supra).
23. On the question as to whether the trial of the
Respondent by this Bench would militate against the principle
of ‘fair trial’, the learned counsel sought support from THE
UNIVERSITY OF DACCA v. ZAKIR AHMED ( PLD 1965 SC 90),
THE GOVERNMENT OF MYSORE AND OTHERS v. J. V. BHAT
ETC. ( AIR 1975 SC 596 ), FEDERATION OF PAKISTAN v.
MUHAMMAD AKRAM SHEIKH ( PLD 1989 SC 689 ), NAFEESA
Crl.O.P.6/12 23
BANO v. CHIEF SETTLEMENT COMMISSIONER, WEST
PAKISTAN ( PLD 1969 Lah 480 ), ANWAR v. THE CROWN
( PLD 1955 FC 185 ), GOVERNMENT OF NWFP v. DR.
HUSSAIN AHMAD HAROON ( 2003 SCMR 104 ), MOHAPATRA
& CO AND ANOTHER v. STATE OF ORISSA AND ANOTHER
( 1985 SCR 91, 322 AT P. 332), AMARANTH CHOWDHURY v.
BRAITHWAITE AND COMPMANY LTD. & ORS; ( 2002 (2) SCC
290).
24. For the purpose of disqualification of a Judge due
to pre-trial observation made by him, reliance was placed upon
two judgments by the Supreme Court of United States;
MURCHISON’S case 349 US 133 (1955) and DANIEL T.
TAYLER III v. JOHN P. HAYES 418 US 488 (1974).
25. The principle of right to ‘fair trial’ has been
acknowledged and recognized by our Courts since long and is
by now well entrenched in our jurisprudence. The right to a
‘fair trial’ undoubtedly means a right to a proper hearing by an
unbiased competent forum. The latter component of a ‘fair
trial’ is based on the age-old maxim “Nemo debet esse judex in
propria sua causa” that “no man can be a judge in his own
cause”. This principle has been further expounded to mean
that a Judge must not hear a case in which he has personal
interest, whether or not his decision is influenced by his
interest, for “justice should not only be done but be seen to have
been done”.
Crl.O.P.6/12 24
26. Starting from the case of THE UNIVERSITY OF
DACCA v. ZAKIR AHMED (ibid) this Court has consistently held
that the principle of natural justice (right of hearing) shall be
read in every statute even if not expressly provided for unless
specifically excluded. The cases cited by the learned counsel
from our own as well as from the Indian jurisdiction have only
reiterated the above well established principle of law. In the
case of NEW JUBILEE INSURANCE COMPANY LTD. v.
NATIONAL BANK OF PAKISTAN ( PLD 1999 SC 1126 ) this
Court has gone to the extent of associating the right to a fair
trial with the fundamental right of access to justice.
27. We agree with the learned counsel for the
Respondent that the inclusion of the principle of right to a ‘fair
trial’ is now a Constitutionally guaranteed fundamental right
and has been raised to a higher pedestal; consequently a law,
or custom or usage having the force of law, which is
inconsistent with the right to a ‘fair trial’ would be void by
virtue of Article 8 of the Constitution. However, the question
here is whether trial of the Respondent for contempt by us
having issued a show cause notice and framed the charge,
would violate the Respondent’s right to a ‘fair trial’ on the
ground that we have already formed a prima facie opinion in
the matter having initiated suo motu action against the
Respondent. While issuing a show cause notice for contempt, a
Judge only forms a tentative opinion, which is subject to the
ultimate outcome at the conclusion of the trial. In this regard
Crl.O.P.6/12 25
one may refer to the lucid pronouncement by the late Hon’ble
Mr. Justice Hamoodur Rahman, the then Chief Justice of
Pakistan, while dealing with a Reference of misconduct against
a Judge of the High Court in THE PRESIDENT v. SHUAKAT ALI
( PLD 1971 SC 585 ). The Respondent Judge had submitted a
statement of his properties and assets to the Supreme Judicial
Council under Article 3 of the Judges (Declaration of Assets)
Order, 1969 and the Council, upon scrutiny of the statement,
submitted a report to the President, who then made a
Reference to the Council to proceed against the Judge for gross
misconduct. One of the objections raised by the Judge was
that the Council as constituted was disqualified from hearing
the Reference, as it had earlier scrutinized the declaration of
the assets of the Respondent and was, therefore, bound to be
biased. The objection was rejected on two grounds; firstly, that
there was no question or allegation of any bias on any
individual member of the Supreme Judicial Council and the
mere fact that the Council had scrutinized the declaration of
assets was not sufficient to establish the likelihood of bias:
“for, if it were so then no Judge who issues a rule in a motion or
issues notice to show cause in any other proceedings or frames
a charge in a trial can ever hear that matter or conduct that
trial. The reason is that a preliminary inquiry intended to
determine whether a prima facie case has been made out or not
is a safeguard against the commencement of wholly
unwarranted final proceedings against a person. To say that a
Crl.O.P.6/12 26
charge should be framed against a person amounts to saying
nothing more than that the person should be tried in respect of
it. Anybody who knows the difference between the prima facie
case and its final trial, would reject the objection as
misconceived.” The second ground for rejecting the objection
was that of necessity, in that if sustained, there would be no
forum or tribunal to hear the Reference, as the Supreme
Judicial Council had the exclusive jurisdiction to hear the
Reference and all its members had at the preliminary stage
scrutinized the statement of declaration of assets of the Judge.
This ground of necessity was reiterated in the case of
FEDERATION OF PAKISTAN v. MUHAMMAD AKRAM SHEIKH
(ibid) where this Court, while reaffirming that the principle
that “no one should be a judge in his own cause and justice
should not only be done but should manifestly appear to have
been done, were very salutary and fully entrenched judicial
principles of high standard”, acknowledged that a Judge, when
otherwise disqualified on account of the said principles, may
still sit in the proceedings if in his absence the tribunal or the
Court having exclusive jurisdiction would not be complete.
28. In the case of THE PRESIDENT v. SHUAKAT ALI
(ibid) the Supreme Judicial Council had on its own motion,
after scrutinizing the statement of the respondent Judge, made
a report to the President. The pronouncement by the then
Chief Justice Hamoodur Rahman provides a complete answer
to the objection of the learned counsel for the defence. The
Crl.O.P.6/12 27
learned counsel had tried to draw a distinction between the
exercise of contempt jurisdiction by the Court on its own
motion and on the complaint of a party and it was contended
that it is only in the former case that a Judge would stand
disqualified to try a contemnor. This distinction we do not
consider to be material. In both situations a Judge applies his
mind before issuing notice to the respondent and later is to
form a prima facie opinion after preliminary hearing whether
or not to frame a charge and proceed with the trial. If it is held
that a Judge holding a trial after having formed a prima facie
or tentative opinion on merits of a case violates a litigant’s
fundamental right guaranteed under Article 10A, it would lead
to striking down a number of procedural laws and well
established practices, and may land our judicial system into
confusion and chaos; a Judge, who frames a charge in every
criminal case, will stand debarred from holding trial of the
accused; a Judge hearing a bail matter and forming a tentative
opinion of the prosecution case would then be disqualified to
try the accused; a Judge expressing a prima facie opinion
while deciding a prayer for grant of injunction would become
incompetent to try the suit. There may be scores of other such
situations. Be that as it may, in all such situations the cause
is not personal to the Judge and he has no personal interest in
the matter to disqualify him.
29. The exception recognized by the two judgments of
this Court cited above on the ground of necessity to the rule
Crl.O.P.6/12 28
that “no person shall be a judge in his own cause” is also
attracted here. After the show cause notice was issued to the
Respondent, a preliminary hearing was afforded to the
Respondent in terms of Sub-section (3) of Section 17 of the
Contempt of Court Ordinance 2003. Upon conclusion of the
hearing we decided to proceed further and frame a charge
against the Respondent. This order was challenged through an
Intra-Court Appeal filed under section 19 of the Ordinance. It
was heard by an eight-member Bench of this Court, headed by
the Hon’ble Chief Justice. The Appeal was dismissed and the
order by this Bench, forming a prima facie opinion to frame the
charge against the Respondent, was upheld. Like the present,
the Bench hearing the Intra-Court Appeal had also applied its
mind to the existence or otherwise of a prima facie case. If the
argument of the learned counsel is accepted, all the members
of the Bench hearing the Intra-Court Appeal would be equally
disqualified, thus, leaving only one Hon’ble Judge of this Court
unaffected. No Bench could then be constituted to hear the
contempt matter.
30. Out of the many judgments cited by the learned
counsel, in only two, both by the United States Supreme
Court, a Judge was held to be disqualified from trying a
contemnor for his pre-trial conduct. In RE MURCHISON
(supra), a Judge acting as one man Grand Jury, under the
Michigan law, was investigating a crime and during the
interrogation, formed an opinion that a policeman, Murchison,
Crl.O.P.6/12 29
had perjured himself and that another person, by the name of
White, had committed contempt for refusing to answer
questions. Then acting in his judicial capacity he tried
Murchison for contempt in open Court. The matter came up
before the United States Supreme Court and while overturning
the decision of the Michigan State Supreme Court held, by a
majority of 7-3, that on the touchstone of ‘fair trial’ by a fair
tribunal the trial by the Judge was in violation of the principle
that “no man can be a judge in his own cause”. This judgment
turns on its own facts where the same person was the
investigator, the complainant and the Judge and the
information that he acquired during secret investigation was
used by him while sitting in his capacity as a Judge. The
information on which the Judge held the contemnor in
contempt was acquired by him not in his judicial but
administrative capacity while investigating a case. That is why
the Supreme Court observed that the Judge as an investigator
was a material witness and trying the case deprived the
contemnor of cross-examining him on the information that he
had acquired during investigation and had used in the judicial
proceedings. The case has no parallel with the one before us.
RE-MURCHISON (supra) does not in any way lay down the
broad proposition that a Judge, who in that capacity forms a
prima facie opinion in a contempt matter, stands disqualified
to try the contemnor. It was in the peculiar circumstances of
the case that the Supreme Court found that the petitioner was
Crl.O.P.6/12 30
not given a fair trial by a fair tribunal. Even then three
members of the Court dissented, holding that the contempt
proceedings could be protected on the principle that a Judge
can try a person, who commits contempt in the face of the
Court.
31. In DANIEL T. TAYLER III v. JOHN P. HAYES (ibid) a
trial Judge had warned the defence counsel during
proceedings before the jury in a murder case nine times for
courtroom conduct that he was in contempt. After the criminal
case was over, the same Judge sentenced the counsel on nine
counts of contempt and on each count, sentenced separately
to run consecutively, totaling almost four and half years. The
matter came up before the United States Supreme Court and it
was held that on the facts of the case the contempt charge
ought not to have been tried by the Judge; that although there
was no personal attack on the trial Judge but the record
showed that the trial Judge had become embroiled in a
running controversy with the attorney and marked personal
feelings were present on both sides during the trial, and the
critical factor for the recusal being the character of the trial
Judge’s response to the attorney’s misbehaviour during the
trial, not the attorney’s conduct alone. This case again does
not in any way lays down that a Judge who forms a prima facie
opinion in a case of contempt is debarred from trying the
contemnor. The Supreme Court of United States considered
the aversion the Judge had developed during the murder trial
Crl.O.P.6/12 31
against the contemnor that disqualified him to hold his trial
for contempt.
32. In both the above cases what prevailed with the
Supreme Court of the United States to hold that the right to a
fair trial was violated, was the pre-trial conduct and not the
pre-trial observations of the Judge.
33. While incorporating Article 10A in the Constitution
and making the right to a ‘fair trial’ a fundamental right the
legislature did not define or describe the requisites of a ‘fair
trial’. By not defining the term the legislature, perhaps
intended to give it the same meaning as is broadly universally
recognized and embedded in our own jurisprudence. Thus in
order to determine whether the trial of the Respondent by this
Bench violates the condition or the requisite of a fair trial, we
have to fall back on the principles enunciated in this respect.
Neither the learned counsel was able, nor did it come to our
notice, any precedent or juristic opinion, that disqualifies a
Judge, on the touchstone of ‘fair trial’, to try a case of which
he had made a preliminary tentative assessment. We may add
that as regards the members of this Bench, the Respondent as
well as the learned counsel, had expressed full confidence.
Indeed none of us has the remotest personal interest in the
matter. The contempt proceedings arose out of nonimplementation
of the judgment of this Court. The cause is not
of any member of the Bench but of the Court and in a wider
sense of enforcement of the law. The legislature has already, in
Crl.O.P.6/12 32
the Contempt of Court Ordinance 2003, provided a safeguard
against trial by a Judge, who may have personal interest in the
matter. Sub-section (3) of Section 11 of the Ordinance bars a
Judge, who has initiated proceedings for ‘judicial contempt’,
that is scandalizing or personal criticism of the Judge, to try
the contemnor. The Judge is required to send the matter to the
Chief Justice, who may himself hear or refer the case to any
other Judge for hearing.
34. From the foregoing discussion, it follows that a
Judge, making a prima facie assessment of a contempt matter
whether initiated suo motu or on the application of a party,
does not stand disqualified on the touchstone of the
requirements of a ‘fair trial’, from hearing and deciding the
matter. Thus our trial of the Respondent does not infringe
upon the Respondent’s fundamental right to a fair trial
enshrined in Article 10A of the Constitution. The objection on
this account is, therefore, not sustained.
35. The learned counsel then took up the issue of
immunity of the President of Pakistan. He did not invoke the
provisions of Article 248 of the Constitution, 1973, for the
grant of immunity to the President of Pakistan and clarified
that such immunity can be invoked by the President himself.
His arguments on immunity were based on the Customary
International Law. He pointed out that the present incumbent
of the office of the President of Pakistan was tried for a
criminal offence in a Court in Switzerland, which case now
Crl.O.P.6/12 33
stands closed, yet the writing of the letter as directed could
lead to the reopening of the case and trial of the President.
That being head of the State, the President has absolute and
inviolable immunity before all foreign Courts, so long as he is
in the office, from any civil or criminal matter, for acts,
private as well as official, done before or after taking office.
That after leaving the office, he may become liable to such
proceedings. The learned counsel made reference to the
Vienna Convention on Diplomatic Relations, 1961 and Vienna
Convention on Consular Relations, 1963, both of which have
been made part of the law of Pakistan by the Diplomatic and
Consular Privileges Act, 1972 (IX of 1972). Of relevance for
the present case is the Vienna Convention on Diplomatic
Relations, 1961, where although no express provision has
been made for grant of immunity to the Heads of States but it
acknowledges in its Preamble the rules of Customary
International Law and affirms that they shall govern
questions not expressly regulated by the provisions of the
Convention. The learned counsel then referred to the
Memorandum by the Secretariat of the United Nation General
Assembly approved in the 60th Session of the International
Law Commission, Geneva in the year 2008 titled “Immunity
of State Officials from Foreign Criminal Jurisdiction” from
which a number of cases and opinions were cited to show
that International as well as domestic Courts have all along
recognized that immunity in civil as well as criminal matters
Crl.O.P.6/12 34
are to be extended to Heads of States. Reference in particular
was made to the cases decided by the International Court of
Justice: DEMOCRATIC REPUBLIC OF CONGO v. BELGIUM (
2002 General List No. 121/ ICJ Reports 2002 p.3 ) known
as Arrest Warrant case, DJIBOUTI v. FRANCE (ICJ Reports
2008 p.177), QADDAFI v. FRANCE
( International Law Reports, Vol. 125, pp.508-510 ), and
decision of the House of Lords in REGINA v. BOW STREET
METOPOL,ITAN STIPENDIARY MAGISTRATE AND OTHERS, EX
PARTE PINOCHET UGARTE (NO.30) (House of Lords [2000] 1
A.C. 147). In view of the immunity, internationally
recognized, granted to the Heads of States while in office, the
learned counsel maintained that the directions in Paragraph
No. 178 in DR. MOBASHIR HASSAN v. FEDERATION OF
PAKISTAN ( PLD 2010 SC 265 ), can and will be
implemented, but only when the tenure of the present
incumbent of the office to the President expires. The case of
A. M. QURESHI v. UNION OF SOVIET SOCIALIST REPUBLICS
( PLD 1981 SC 377 ) was cited to show that this Court had
also recognized and applied Customary International law by
granting immunity to foreign States. With reference to certain
opinions expressed in Paragraphs No. 215 to 219 of the
Memorandum by the Secretariat of the United Nation General
Assembly, referred to above, it was contended that immunity
is to be extended to the Heads of States whether or not
invoked.
Crl.O.P.6/12 35
36. When the respondent appeared in person in
response to the show cause notice and addressed the Court
briefly, he gave two reasons for not communicating with the
Swiss Authorities for implementation of the direction of this
Court, firstly, that the President of Pakistan enjoys complete
immunity inside and outside Pakistan and, secondly, that he
acted upon the advice tendered to him in the ordinary course
of business. No written reply to the show cause notice was
submitted and the Respondent’s plea and defence in writing
came only in the written statement filed by him at the close of
evidence. In his statement, the Respondent did not confine
his defence to acting upon the advice tendered to him but
took a categorical stand that the judgment of this Court
cannot be implemented so long as Mr. Asif Ali Zardari
remains the President of Pakistan. This plea of the
Respondent is evident from Paragraphs No. 5, 46 and 79 of
the written statement. The relevant parts of those Paragraphs
are reproduced:-
“5. I may also respectfully point out that this
Hon’ble Bench needs first to hear detailed
arguments on my behalf why Para. 178 of
the judgment in the NRO case is not
implementable at present only, for the
period Mr. Asif Ali Zardari is the incumbent
President of Pakistan…..”
46. I believe that this is indeed the correct
position in law and fact. As long as a person
is Head of a Sovereign State he has immunity
in both criminal as well as civil jurisdiction of
Crl.O.P.6/12 36
all other states under international law. I
believe this immunity to be absolute and
inviolable, even though it persists only during
the tenure of office. It thus vests in the office,
not in the person. And it represents the
sovereignty and independence of a country as
well as its sovereign equality with all other
states, howsoever strong and powerful. I
think it wrong to subject the constitutionally
elected incumbent President of Pakistan to the
authority of a Magistrate in a foreign country.
I think this subjection should be avoided.”
79. I therefore, believe that I have committed
no contempt and that is a sufficient answer to
the charge. I also believe that the Sovereign
State of Pakistan cannot, must not and
should not offer its incumbent Head of State,
Symbol of the Federation (Art. 41), the most
prominent component of Parliament (Art. 50),
and the Supreme Commander of its Armed
Forces (Art. 243) for a criminal trial in the
Court of a foreign Magistrate, during the term
of his office.”
37. The above position of the Respondent was, with
vehemence, further urged by the learned counsel when
concluding his arguments: that the Respondent is caught
between implementing the judgment of this Court and
maintaining the dignity and respect due to the office of the
President of Pakistan. Thus, in very clear terms, he declared
that the Respondent will not presently implement this Court’s
direction. Neither in the personal address by the Respondent
before this Court nor in the written statement or in the
Crl.O.P.6/12 37
submissions made on his behalf, slightest indication was
given that the Respondent was ready to obey the Court’s
order as of now.
38. It is not necessary to examine or comment upon
the case law cited by the learned counsel for the Respondent
as the plea taken cannot prevail for a number of reasons. The
ground of immunity under the International Law was
expressly taken up by the Federal Government in grounds
(xii) and (xvi) of the Review Petition (Civil Review Petition No.
129 of 2010 in Civil Petition No. 76 of 2007) in DR.
MUBASHIR HASSAN’S case (ibid), with reference to Paragraph
No. 178 of the judgment. The grounds reproduced in
Paragraph No. 4 of the review judgment reads:-
“(xii) that in para 178 of the detailed
judgment, this Court has erred in ordering the
Federal Government and other concerned
authorities to seek revival of the said
requests, claims and status contrary to the
principles of International Law in foreign
countries;
(xvi) that the Court fell in error in not
appreciating the functions of the Attorney
General under Article100 of the Constitution
i.e. it is the office of the said incumbent which
is empowered to act or not to act in terms of
its mandate and the letter written by then
Attorney General for Pakistan to Swiss
authorities to withdraw the prosecution was
well within its mandate. The adverse finding
recorded in this regard offended the principle
of audi alteram partem. The observations
Crl.O.P.6/12 38
made in paras 178 and 456 are in derogation
to Article 4 of the Constitution as well;”
39. The learned counsel appearing on behalf of the
Federal Government in the Review, besides others, assailed
Paragraph No. 178 of the judgment under review. The Full
Court of 17 Judges rejected the arguments in Paragraph No.
14 in the following terms:
“14. The Court in para 178 of the judgment
merely held that the communications
addressed by the then Attorney General were
unauthorized and the Federal Government
was directed to take steps to seek revival of
the request in that context. Neither during the
hearing of the main case, learned counsel for
the Federal Government placed on record any
instructions of the Federation in this context
nor during the hearing of this review petition,
any such material was laid before this Court
which could persuade us to hold that the said
communication by the then Attorney General
was duly authorized to warrant its review.”
40. The arguments regarding immunity under the
International Law having been urged before the Full Court in
review and not accepted, this seven-member Bench is in no
position to examine the plea. Even otherwise, we are not
sitting in review and, therefore, cannot go beyond what has
been held therein.
41. When confronted with the above situation, the
learned counsel submitted that he does not seek review of
Crl.O.P.6/12 39
either Paragraph No. 178 or the decision in the review
judgment but only prays for postponement of the
implementation till the tenure of the present incumbent of the
office of the President comes to an end. This contention, if
accepted, would delay the implementation until, at least, the
fall of 2013, when the present tenure of the President expires,
and would amount to modification of the direction given in
the main as well as in the review judgment in DR. MOBASHIR
HASSAN’s case (ibid). Paragraph No. 178 concludes with
direction to the Federal Government and other concerned
authorities “to take immediate steps to seek revival of the
said request, claims and the status”. Similarly, the short order
of 25.11.2011 dismissing the review petition carries similar
direction that “the concerned authorities are hereby directed to
comply with the judgment dated 16.12.2009 in letter and sprit
without any further delay.” Acceptance of the Respondent’s
plea to delay the implementation of the direction of this Court
would tantamount to review of the clear orders passed in both
the judgments that the implementation is to be carried out
immediately and without delay. This Bench has no power to
modify the judgments and delay implementation.
42. Additionally, we have noted that the criminal
cases before the Swiss Courts were initiated by the Swiss
Authorities and not by the Government of Pakistan, which
later applied to be made civil party claiming that the amount,
if any, found to be laundered, be returned to Pakistan, being
Crl.O.P.6/12 40
its rightful claimant. This position was not disputed by the
learned counsel. In Paragraph No. 178, the Court had merely
directed that the communication earlier made by the former
Attorney-General, Malik Muhammad Qayyum, for withdrawal
of the claim be withdrawn so that the civil claim of the
Federal Government is revived. The consequences of the
withdrawal of Malik Muhammad Qayyum’s communication
can only be examined and adjudged by the investigators or
courts in Switzerland, particularly, in view of the controversy
raised on behalf of the Respondent that the cases were closed
on merits, though we have noted that the documents speak
otherwise.
43. Since complete facts of the case in Switzerland are
not before us, we are in no position to form a definite opinion
about its status when the claim was withdrawn nor indeed
are we competent to give our own findings on the case, even
for the limited purpose of determining the question of
immunity. It is the authorities or the courts in that country
alone which can, in the light of the facts before it, examine
the question of immunity. The immunity can, thus, be
invoked before the relevant authorities in Switzerland and,
going by the arguments of the learned counsel, if the same is
indeed available, it may be granted to the President of
Pakistan without invocation.
44. Finally, besides Mr. Asif Ali Zardari there are
others who were also accused in the criminal case in
Crl.O.P.6/12 41
Switzerland. This has been impliedly admitted in the written
submissions filed on behalf of the Respondent. By Reference
to Ex.D1/3 and D2/2, mentioned in the Summary prepared
for the Prime Minister, it is stated that presently, Mr. Asif Ali
Zardari is the only Pakistani surviving accused in the case,
thereby admitting the indictment of non-Pakistani accused.
However there is express reference to other accused in the
letter of Malik Muhammad Qayyum, withdrawing the claim
stating that the “Republic of Pakistan ……. withdraws in
capacity of civil party not only against Mr. Asif Ali Zardari but
also against Mr. Jens Schlegelmich and any other third
party concerned by these proceedings”. As the claim of the
Government of Pakistan was to retrieve the laundered money
and commissions, whether paid to Pakistani, Swiss or other
foreign nationals, the defence of immunity, even if available to
the present President of Pakistan, cannot be pleaded for the
foreign national accused in the case. To their extent too the
Respondent is reluctant to revive the claim of the Government
of Pakistan for no understandable reasons.
45. An ancillary objection was raised by the learned
counsel to the competence of the Supreme Court to
implement its own judgments in view of clause (2) of Article
187 of the Constitution. The Article reads;
187(1) [Subject to clause (2) of Article
175, the] Supreme Court shall have power to
issue such directions, orders or decrees as
may be necessary for doing complete justice
Crl.O.P.6/12 42
in any case or matter pending before it,
including an order for the purpose of securing
the attendance of any person or the discovery
or production of any document.
(2) Any such direction, order or decree
shall be enforceable throughout Pakistan and
shall, where it is to be executed in a Province,
or a territory or an area not forming part of a
Province but within the jurisdiction of the High
Court of the Province, be executed as if it had
been issued by the High Court of that
Province.
(3) If a question arises as to which High
Court shall give effect to a direction, order or
decree of the Supreme Court, the decision of
the Supreme Court on the question shall be
final.”
The learned counsel submitted that since implementation of
the judgment falls within territorial jurisdiction of the
Islamabad High Court, that Court alone was empowered to
implement this Court’s orders or directions. We, however,
understand that the said provision does not, in any manner,
ousts this Court’s power to enforce its decisions, particularly
in view of its wide powers under Article 190 of the
Constitution and under Article 204 to punish any person for
disobeying the orders of the Court. Further, clause (1) of
Article 187 of the Constitution only mandates that when the
orders of the Supreme Court are to be enforced within a
Province they shall be executed as if issued by the High Court
of that Province; not that the execution is to be carried out by
the High Court. We may add that this contention was not
Crl.O.P.6/12 43
seriously urged and even otherwise we have found it
misconceived.
46. Before taking up the arguments of the learned
defence counsel on the factual aspects of the case, we may
note here that Moulvi Anwar-ul-Haq, Attorney-General for
Pakistan, who acted as the prosecutor on our orders and
remained associated with this case almost till the end, was
replaced by Mr. Irfan Qadir, during the submissions by the
learned defence counsel. The Attorney-General under Article
100 of the Constitution is appointed by the President on the
advice of the Prime Minister. We found it intriguing that the
Respondent exercising his such powers changed the officer of
the Court prosecuting him. The learned Attorney-General did
not put forth arguments in favour of the prosecution rather
pleaded that there was no evidence, whatsoever, on the basis
of which the Respondent could be held guilty of contempt. We
were, thus, rendered one sided assistance only.
47. The learned Attorney-General in his arguments
quoted some Paragraphs from “Guidelines on the Role of
Prosecutors, Adopted by the Eighth United Nations Congress on
the Prevention of Crime and the Treatment of Offenders,
Havana, Cuba, 27 August to September 1990” to explain his
role as a prosecutor that he need not support the prosecution
and was entitled to make independent assessment of the case
and assist the Court in accordance with law and his
conscience. However, all his arguments were in support of the
Crl.O.P.6/12 44
defence and none whatsoever to support the charge against
the Respondent. The learned Attorney-General began by
submitting that there was no law of contempt in force in the
country, in that, the Contempt of Court Ordinance 2003
having lapsed by efflux of time under Article 89 stood
repealed under Article 264 of the Constitution and that
Article 270AA did not protect the said Ordinance. This
question squarely came before this Court in Suo Motu Case
No.1 of 2007 (PLD 2007 SC 688) where it was held that the
Contempt of Court Ordinance (V of 2003) holds the field. This
judgment had been affirmed by this Court in JUSTICE
HASNAT AHMED KHAN v FEDERATION OF PAKISTAN ( PLD
2011 SC 680 ). It was pointed out to the learned Attorney-
General that even if there was no sub-constitutional
legislation regulating proceedings of Contempt of Court, this
Court was possessed of constitutional power under Article
204 to punish contemnors, with no restrictions on the
exercise of power including that regarding quantum of
punishment that can be imposed on the contemnor. The
learned Attorney-General went on to criticize parts of the
judgment in “DR. MOBASHIR HASSAN’s case (ibid). We,
however, told him that the said judgment has been upheld by
the Full Court in review and we cannot reopen the questions
already decided. Concluding his arguments, he submitted,
without elaborating, that the evidence on record does not
establish the charge of contempt against the Respondent.
Crl.O.P.6/12 45
48. Coming to the facts of the case, the learned
defence counsel contended that until the Review Petition of
the Federal Government was dismissed on 25.11.2011 there
had been no directions by the Court specifically to the
Respondent. That when the matter of implementation was
taken up after the dismissal of the review petition on
25.11.2011, the Court on 03.01.2012 only enquired of the
Attorney-General for Pakistan as to whether the Summary
was prepared and placed before the Prime Minister in view of
the directions given earlier, but again no direction was given
to the Respondent. As regards the order of 10.01.2012,
wherein the Court specifically mentioned the Prime Minister,
the learned counsel submitted that the same was never
communicated to the Respondent. That the statement of the
Attorney-General before the Court on 16.01.2012 that he
communicated the order of 10.01.2012 to the Prime Minister
is not evidence of the fact of such communication without the
Attorney-General testifying on oath to that effect. Reliance
was placed on G.S. GIDEON v. THE STATE ( PLD 1963 SC 1 ).
It was contended that the only order specifically and
particularly addressed and communicated to the Respondent
was the one passed on 16.01.2012, requiring him to appear
before the Court. It was thus maintained that prior to the
issuance of show cause notice to the Respondent on
16.01.2012 no other order with direction directly to the
Respondent was brought to his notice. The learned counsel
Crl.O.P.6/12 46
made reference to Paragraphs No. 74(i) and 74(v) of the
written statement filed by the Respondent.
49. The learned counsel took us through various
interim orders in order to show that at the early stages of the
implementation process, directions were given to the officials
of the Ministry of Law and the National Accountability Bureau
(NAB) but never specifically to the Respondent (the Prime
Minister of Pakistan) and that too to prepare proper
summaries for consideration of the Respondent. That the first
Summary was returned by the office of the Prime Minister, as
it did not give any clear opinion and on the second Summary
the Prime Minister directed that the Supreme Court be
informed that in view of the immunity to the President, its
orders cannot be implemented. Referring to the Rules of
Business, 1973, and the statement of Ms. Nargis Sethi (DW-1)
the then Principal Secretary to the Prime Minister, the
learned counsel contended that the Prime Minister was not to
be blamed for the Summaries if not prepared in conformity
with the directions of this Court. That it was the task of the
then Law Secretary and the Attorney-General for Pakistan to
prepare a proper summary and the contempt, if any, was
committed by them and not the Respondent. In support of his
contentions that the Respondent cannot be held personally
responsible for any wrong advice tendered to him in the
ordinary course of business, the learned counsel relied upon
DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN SINGH, a
Crl.O.P.6/12 47
judgment of the Supreme Court of India in Civil Appeal No.
1193 of 2012, decided on 31.01.2012.
50. The learned counsel finally submitted that since
the contempt proceedings are criminal in nature, entailing
punishment, mens rea of the Respondent is to be established
and it must be proved that his conduct was contumacious.
That it would not be so if his decision is justifiable on
subjective assessment of the information placed before him.
That knowledge of the Respondent of the orders of this Court
cannot be presumed and must be proved. For the purpose of
standard and burden of proof in contempt matters and
whether the conduct of the Respondent was contumacious,
the learned counsel provided us with a long list of cases,
some of which are MRITYUNJOY DAS AND ANOTHER v. SAYED
HASIBUR RAHMAN AND OTHERS 2001 (3) SC Cases 739,
CHHOTU RAM v. URVASHI GULATI AND ANOTHER 2001 (7) SC
Cases 530, THE ALIGAR MUNICIPAL BOARD AND OTHERS v.
EKKA TONGA MAZDOOR UNION 1970 (3) SC Cases 98, BAHAWAL
v. THE STATE ( PLD 1962 SC 476 ), SMT. KIRAN BEDI AND
JINDER SINGH v. THE COMMITTEE OF INQUIRY AND ANOTHER (
AIR 1989 SC 714 ), ISLAMIC REPUBLIC OF PAKISTAN v.
MUHAMMAD SAEED ( PLD 1961 SC 192 ), ABDUL GHAFOOR v.
MUHAMMAD SHAFI ( PLD 1985 SC 407 ), MIAN MUHAMMAD
NAWAZ SHARIF v. THE STATE ( PLD 2009 SC 814 ).
51. Regarding lack of knowledge of the Respondent
about directions given by this Court from time to time the
arguments advanced by the learned counsel that he was not
Crl.O.P.6/12 48
informed of any such direction given until 16.01.2012, loses
significance in the light of the categorical stand taken by the
Respondent when he appeared before this Court after issuance
of the show cause notice, as well as in his written statement,
that he is not for the time being willing and ready to carry out
the order of this Court. This by itself establishes his
disobedience. Nevertheless we would proceed to examine his
plea of acting on advice and that the orders for the
implementation were not specifically directed towards him.
52. The defence examined Ms. Nargis Sethi (DW-1), the
then Principal Secretary to the Prime Minister during the
relevant period. She produced two Summaries prepared for the
Prime Minister, dated 21.05.2010 (Ex.D1) and dated
21.09.2010 (Ex. D2) along with all the appended documents
relating to the implementation of the directions given in DR.
MOBASHIR HASSAN’s case (ibid). In the Summary of
21.05.2010, moved by the Ministry of Law, Justice &
Parliamentary Affairs. The following proposals were placed
before the Prime Minister for his approval:
“6. In view of above, the Hon’ble Prime
Minister is requested to:
(a) approve the Interim Report
(Annex-A) and the stance taken by the
then Law Secretary and submitted to
the Hon’ble Supreme Court in the form
of points (Annex-B)
(b) approve the opinion of the former
Attorney General at paras 9 and 10 of
Annex-C.
Crl.O.P.6/12 49
(c) any other ground which may be
necessary to be taken in the court; and
(d) any other instructions the Hon’ble
Prime Minister may like to give in this
regard.
7. This Summary has the approval of
Minister of Law, Justice and
Parliamentary Affairs.”
53. On 24.05.2010 the following approval was given by
the Prime Minister (Ex.D1/2)
“7. The Prime Minister has observed that
Ministry of Law, Justice & Parliamentary
Affairs has not given any specific views in the
matter, as per Rules of Business, 1973.
However, under the circumstances, the
Prime Minister has been pleased to direct
that the Law Ministry may continue with
the stance already taken in this case.”
54. The stance referred to in the above approval taken
by the Ministry of Law in Annex-B to the Summary (Ex.D1/3),
about the present issue is mentioned in Paragraphs No. 1 & 2,
reproduced as under:
“1. In connection with the question of
revival of the proceedings which were
pending before the Swiss Authorities it has to
be respectfully brought to the kind notice of
this Hon’ble Court that the proceedings
pending in Switzerland against, Shaheed
Benazir Bhutto, Mr. Asif Ali Zardari, (now
President of Pakistan) and Begum Nusrat
Bhutto etc. already stand disposed of, not
Crl.O.P.6/12 50
only because Malik Muhammad Qayyum the
Ex-Attorney General for Pakistan had applied
for the withdrawal of the application for
mutual assistance and for becoming civil
party but the same had been closed on
merits by the Prosecutor General, Geneva
vide his order dated 25.08.2008.
2. It may be respectfully submitted further
that the evidence had been recorded in the
case and the investigation proceedings were
closed by the Prosecutor General Switzerland
mainly on account of the evidence recorded
by the Swiss authorities. In this view of the
matter, it is submitted that no case
whatsoever is pending which can be
legally revived. This submission is inline
with the legal opinion recorded by Mr. Anwar
Mansoor Khan, former Attorney General for
Pakistan under Article 100(3) of the
Constitution, who after perusal of NAB record
including copies of the orders passed by the
Swiss authorities opined that the case in
Switzerland stood disposed of on merits and
cannot be revived.”
55. The above Paragraphs mention the name of Mr.
Asif Ali Zardari (now the President of Pakistan) and the stance
taken is based on the order of the Prosecutor-General, Geneva,
dated 25.08.2008 and the opinion of the then Attorney-
General for Pakistan, Mr. Anwar Mansoor Khan, that the case
in Switzerland had been closed on merits and therefore cannot
be revived. Since it was time and again stressed that the case
in Switzerland was closed on merits we need to take a look at
Crl.O.P.6/12 51
the order of the Prosecutor General, Geneva, and the opinion
of Mr. Anwar Mansoor Khan. The former order is reproduced
in the second Summary of the Ministry of Law (Ex.D2) at page
No.47:
“10. As regards Asif Ali Zardari, the Public
Prosecutor of Pakistan, after having
initially involved Asif Ali Zardari, dropped all
charges against him as well as against Jens
Schlegelmilch, it being noted that the sentence
pronounced in 1999 in Pakistan was revoked
in 2001, that no new trial has been held in
Pakistan since then that is since nearly 7
years.
Besides this, the Public Prosecutor
believed today that the proceedings have
been initiated against Benazir Bhutto and her
husband for political reasons.
Furthermore, Pakistan explains
withdrawal of proceedings highlighting that
the procedure of allocation of contract to SGS
/CONTECNA was not marred by
irregularities, admitting hence that it believes
that no act of corruption was committed.
Finally, the testimonies collected from
the files and reported above show no
conclusive evidence that would allow
invalidating the final observation made on the
basis of the file by the Public Prosecutor of
Pakistan.
Therefore, the proceedings, stand closed.”
56. Reference to Public Prosecutor in the above order is
to the then Attorney-General for Pakistan (Malik Muhammad
Crl.O.P.6/12 52
Qayyum) and the order has been passed in response to his
communication. The reasons broadly for closing the case are
on account of the opinion expressed by Malik Muhammad
Qayyum, that the proceedings were initiated for political
reasons; that neither there were irregularities in the allocation
of the contract SGS/CONTECNA, nor any corruption
committed. Giving due weight to these observations, the
Prosecutor General, Geneva closed the case. We, therefore,
entertain serious doubts regarding the claim that the case in
Switzerland was closed on merits. Mr. Anwar Mansoor Khan,
in his opinion dated 25.03.2010, also referred to the order of
the Prosecutor-General, Geneva that the case has been closed
on merits, but pointedly mentioned the judgment of this Court
in DR. MOBASHIR HASSAN’s case (ibid) in the concluding Para
(No.12):
“12. Notwithstanding the above, there is a
judgment of the Hon’ble Supreme Court of
Pakistan dated 16.12.2009 in DR.
MOBASHIR HASSAN v. FEDERATION OF
PAKISTAN (PLD 2010 SC 1) on the issue. It is
therefore opined that the Federal Government
may decide the issue keeping in view the fact
and the judgment”
57. In other words the then Attorney-General for
Pakistan had opined that notwithstanding the closure of the
case on merits, the judgment of DR.MOBASHIR HASSAN’s case
(ibid) is still in the field. Though he did not put it plainly but
what he meant was that it had to be enforced.
Crl.O.P.6/12 53
58. The Summary referred to Rule 5(1) and (2) of the
Rules of Business and emphasized that “it is the Chief
Executive of the country who has the authority to approve or
disapprove the view of the Minister.” The said Rule states:
“(1) No important policy decision shall be
taken except with the approval of the Prime
Minister.
(2) It shall be the duty of a Minister to
assist the Prime Minister in the formulation of
policy.”
59. Reference was further made to Article 90 of the
Constitution, clause (2) of which reads:
“In the performance of his functions under the
Constitution, the Prime Minister may act
either directly or through the Federal
Ministers.”
60. The final decision in the matter was to be taken by
the Prime Minister, being the Chief Executive of the
Federation. This position was not disputed even by the
learned counsel for the Respondent. All the relevant
documents, including the opinion of the then Attorney-
General for Pakistan, with particular reference to DR.
MOBASHIR HASSAN’s case (ibid), along with the up to date
interim orders of this Court, relating to implementation, were
appended with the Summary. Out of the four proposals in the
Summary, the last was for the Prime Minister to give any
other instruction in that regard. This was not a Summary for
the Prime Minister relating to a routine business of the
Crl.O.P.6/12 54
Government. It involved implementation of the judgment of
this Court in a well publicized case of immense public
importance in which the Federal Government was not only
represented but had filed also a review petition. Above all it
also involved the serving President of the country, whose
name specifically appeared in Annex-B (Ex.D 1/3) of the
Summary. Since the Respondent had selected one of the four
proposals in the Summary, we have reasons to believe that he
had applied his mind to the case and consciously approved
the proposal given in Paragraph No. 6 (a), that the Law
Minister shall continue with the stance already taken in the
case, which was to the effect that the case cannot be revived
as the same has been closed on merits. The decision thus
taken in the first Summary by the Respondent was not to
implement this Court’s direction.
61. By the time the second Summary was placed
before the Prime Minister on 21.09.2010. Mr. Justice (Retd.)
Mohammad Aqil Mirza had resigned as Secretary Law and so
had Mr. Anwar Mansoor Khan quit the office of the Attorney-
General. The second Summary was prepared and placed by
the new Law Secretary, Mr. Muhammad Masood Chishti.
With this Summary, besides the documents appended with
the first Summary, additional documents with fresh interim
orders of the Court relating to the reopening of the Swiss
cases were also appended. In Paragraph No. 17(A) of this
Summary, besides the stand taken in the first Summary that
Crl.O.P.6/12 55
the investigation in the case already stood closed another
reason for non-implementation of the judgment was taken,
namely, that “the Federal Government is bound to act under
the law and the Constitution and present incumbent being
the elected President of Pakistan cannot be offered for
investigation or prosecution etc. to an alien land as it militate
against the sovereignty of the Islamic Republic of
Pakistan.”. It may be noted that in neither of the Summaries
or the opinions forming part of the Summaries any reference
was made to the immunity of the President under Article 248
of the Constitution or under the Customary International
Law. According to Ex.D 2/2, the Principal Secretary to the
Prime Minister, Ms. Nargis Sethi, on 23.09.2010, made the
following note on the Summary:
“20. The Prime Minister has approved the
proposal at para 17(A) of the Summary, which
has also been endorsed by the Law Minister
vide para 19, thereof.
21. The Secretary, Law, Justice and
Parliamentary Affairs, as well as, the
Attorney General for Pakistan may
appropriately explain the position to the
Honourable Supreme Court of Pakistan.”
62. In her statement before this Court, Ms. Nargis
Sethi (DW-1) had tried to explain that Paragraph No.21
reflects the decision of the Prime Minister. This, however, is
not reflected from the Summary, as the Prime Minister had
only approved the proposal at Paragraph No.17(A) of the
Crl.O.P.6/12 56
Summary, and it appears that Paragraph No.21 were the
instructions coming from the Principal Secretary. Even if
these were the instructions of the Respondent, the same were
never communicated to the Court. In any case it only restates
his consistent position of non-implementation.
63. The implementation proceedings can be
conveniently divided into two stages. The first is up to the
date when the Full Court suspended the implementation
proceedings, and the second, after the dismissal of the Review
Petition. The defence of the Respondent on merits in the main
is that in the pre-review period the Court had not given
direction specifically to the Respondent and orders passed in
the post-review stage the only one communicated to him was
of 16.01.2012, calling upon the Respondent to show cause.
These pleas would have had some relevance if the Respondent
upon appearance in the Court in response to the show cause
notice had expressed his willingness and readiness to comply
with the Court’s directions. Instead he took a stand that he
would not implement the directions as he believed that the
same were not implementable. This stand of the Respondent
continued right up to the conclusion of the trial. Many a time,
during the hearing of these proceedings, the learned counsel
for the Respondent was asked whether the Respondent would
even now agree to write to the Swiss Authorities. The only
response we received was that the letter cannot be written so
long as Mr. Asif Ali Zardari remains the President of Pakistan.
Crl.O.P.6/12 57
The Respondent’s stand amounts to saying that the order of
this Court is non-implementable, as he believes that the same
is not in accord with the Constitution of Pakistan and the
International law. This argument, if accepted, would set a
dangerous precedent and anyone would then successfully
flout the orders of the Courts by pleading that according to
his interpretation they are not in accord with the law. A
judgment debtor would then be allowed to plead before the
executing Court that the decree against him was inconsistent
with the established law. No finality would then be attached
to the judgments and orders of the Courts, even those by the
apex Court of the Country. One may refer to the oft quoted
aphorism of Robert Houghwout Jackson, J. about finality of
the judgments of the Supreme Court of United States, “……
there is no doubt that if there were a super Supreme Court, a
substantial proportion of our reversals of the State Courts
would be reversed. We are not final because we are
infallible, but we are infallible because we are final.
The executive authority may question a Court’s decision
through the judicial process provided for in the Constitution
and the law but is not entitled to flout it because it believes it
to be inconsistent with the law or the Constitution.
Interpretation of the law is the exclusive domain of the
judiciary.
64. The learned counsel for the Respondent referred to
the order of this Court dated 01.04.2010 by a Bench headed
Crl.O.P.6/12 58
by the Hon’ble Chief Justice that the matter of reopening of
Swiss cases was to be dealt with according to the Rules of
Business 1973, keeping in view the relations between the two
sovereign States and that the Federal Government had
followed the Court’s order by adopting the procedure laid
down in the Rules of Business by preparing summaries for
the approval of the Prime Minister. The Court undoubtedly,
and quite rightly, stated that the Rules be followed for the
purpose of implementation of the Court’s direction but
unfortunately the Rules were used for its nonimplementation.
In this context, the learned counsel placed
heavy reliance on the judgment of the Supreme Court of India
in DR. SUBRAMANIAN SWAMY v. DR. MANMOHAN SINGH in
Civil Appeal No. 1193 of 2012, decided on 31.01.2012. To
appreciate the decision, some relevant facts of the case need
to be stated. Dr. Subramanian Swamy was a private citizen
and sought to prosecute for graft the Minister for
Communication and Information Technology, Mr. A. Raja
(Respondent No.2), alleging that on account of irregularities
committed in the allotment of new licenses in 2G mobile
services to two companies, Novice Telecom, viz. Swan Telecom
and Unitech, in violation of the guidelines for the purpose; a
loss of Rs.50,000/- crores was caused to the Government; for
this purpose he submitted a representation to Respondent
No.1, Dr. Manmohan Singh, the Prime Minister of India, who
directed the concerned officers to examine and apprise him of
Crl.O.P.6/12 59
the facts of the case. The representation was placed before a
Committee, headed by Respondent No.2, the Minister
concerned. Since no action was taken thereafter on the
representation, the appellant filed an appeal before the
Supreme Court of India for prosecution of the Minister; one of
the questions that came before the Supreme Court was the
inaction of the Prime Minister on the representation of the
appellant and the Court held that “In our view, the officers in
the PMO and the Ministry of Law and Justice, were duty bound
to apprise respondent No.1 about seriousness of allegations
made by the appellant and the judgments of this Court
including the directions contained in paragraph 58(I) of the
judgment in Vineet Narain’s case as also the guidelines framed
by the CVC so as to enable him to take appropriate decision in
the matter. By the very nature of the office held by him,
respondent No.1 is not expected to personally look into
the minute details of each and every case placed before
him and has to depend on his advisers and other
officers. Unfortunately, those who were expected to give
proper advice to respondent No.1 and place full facts and legal
position before him failed to do so. We have no doubt that if
respondent No.1 had been apprised of the true factual and
legal position regarding the representation made by the
appellant, he would have surely taken appropriate decision
and would not have allowed the matter to linger for a period of
more than one year.” The Court emphasized two points.
Crl.O.P.6/12 60
Firstly, that the officers in the PMO and the Ministry of Law
and Justice were under a duty to apprise the Prime Minister
about the seriousness of the allegation and that the Prime
Minister was not expected to look into minute details of each
and every case placed before him and has to depend upon his
officers and advisors. The Court further observed that had the
Prime Minister been properly apprised of the true and legal
position, he would have taken an appropriate decision. The
situation in the case before us is totally different from DR.
MANMOHAN SINGH’s case (ibid). Here the case did not involve
any intricate or minute details which required resolution. It
was a straightforward case for implementation of the
judgment of this Court on which there could have been no
two views. Even if there was any, the Respondent never
approached the Court for clarification. It was not a matter
where the Respondent was left with any discretion. He was
supposed to give a formal approval or direction to implement
the decision of the Court. As it turned out during the current
proceedings, the Prime Minister had never intended to comply
with the orders of this Court regardless of any advice. He
cannot shift the blame or the responsibility to his advisors for
not giving him proper advice. The Respondent has taken a
conscious decision in that and he must accept responsibility
for the same. Even the case of MIAN MUHAMMAD NAWAZ
SHARIF v. THE STATE (ibid) does not further the case as there
Nawaz Sharif had to take a decision one way or the other on
Crl.O.P.6/12 61
the advice that was tendered to him. The Respondent had no
option but to order the implementation of this Court’s
direction, particularly after the review of the Federal
Government was dismissed.
65. After the review petition filed by the Federal
Government was dismissed on 25.11.2011 with a clear
direction that the judgment in DR. MOBASHIR HASSAN’s case
(ibid) shall be implemented without any further delay, the
matter of implementation proceedings were revived. On
10.1.2012 (Ex.P.22) a detailed order was passed directly
putting the Respondent on notice to implement the orders lest
the proceedings for contempt of Court be initiated. The
learned Attorney-General on the following date on 16.01.2012
(Ex.P.23) informed the Court that the said order was duly
communicated to the President of Pakistan and the Prime
Minister of Pakistan but that he had not received any
instruction. The learned counsel for the Respondent
submitted that the value of such statement by the Attorney-
General is only evidence that statement was made but not of
its contents unless the Attorney-General testifies on oath to
the correctness of the statement. We are afraid we cannot
accept this argument as the Attorney-General for Pakistan is
the principal law officer of the Federation and the statements
made by him before the Court are official communications
and shall, thus, be presumed to be correct, unless validly
contradicted. Although the Respondent, in Paragraph No.
Crl.O.P.6/12 62
74(i) and (v) of his written statement, has stated that he was
not made aware of the orders of the Court after September
23, 2010, until January 2012, more specifically 16.01.2012,
there is, however, no specific denial with regard to the
Attorney-General’s statement made before the Court on
16.01.2012. We may mention that when the learned counsel
for the Respondent during submissions stated that the
Respondent was not aware of the orders of the Court, the
then Attorney-General, Moulvi Anwar-ul-Haq intervened that
he had conveyed all the relevant orders to the Prime Minister.
Perhaps, that may have been the reason that before
arguments could be addressed by the Attorney-General, he
was replaced. We have no doubt that the Respondent was
made aware of the order of 16.01.2012. Be that as it may, on
his appearance in response to the show cause notice, he still
expressed his unwillingness to obey the Court’s orders.
66. Coming to the evidence in support of the charge,
the Attorney-General for Pakistan, acting as prosecutor,
tendered in evidence attested copies of the two judgments in
DR. MOBASHIR HASSAN’s case (ibid) and the orders of this
Court for the implementation of Paragraph No. 178 of the
original judgment. The learned counsel for the Respondent
did not raise any objection when these documents were
tendered in evidence under Article 88 of the Qanun-e-
Shahadat Order, 1984. The only defence witness, Ms. Nargis
Sethi, the then Principal Secretary to the Prime Minister,
Crl.O.P.6/12 63
mainly referred to the schedule of the Prime Minister, with a
view to persuade the Court that the Respondent’s busy
schedule does not allow him to examine in detail the
summaries placed before him. We have already observed that
this was not a routine Summary and that as a matter of fact,
the Prime Minister did apply his mind as, not once but twice,
he consciously decided against the implementation. The
witness further stated that when the Summary is returned,
the Minister concerned is obliged to inform the Prime Minister
of further development. We have, however, already held that
the option exercised by the Prime Minister in the first
Summary amounted to non-implementation of the judgment;
the observation of the Prime Minister that the Law Ministry
had not given any definite opinion is inconsistent with his
direction to the Ministry to continue with its stand, which
amounts to saying that the judgment being not
implementable shall not be implemented.
67. The learned counsel for the Respondent submitted
that the prosecution had failed to establish the mens rea of
the Respondent. The Respondent had been charged for
“willful” disobedience. The mens rea required for such charge,
is the willfulness of the Respondent. This is amply
demonstrated by the conduct of the Respondent, who being
aware of the direction of this Court, at least, from the time the
first Summary was presented to him and being Chief
Executive of the Federation was the ultimate authority to
Crl.O.P.6/12 64
formally carry out the orders of the Court, which he
persistently declined. His clear direction in the second
Summary presented to him, as discussed above, and his
categorical stand before us upon commencement of the
contempt proceedings when the Respondent appeared in
response to the show cause notice establishes beyond
reasonable doubt that the Respondent willfully flouted, and
continues to flout, the orders of this Court. As regards the
second ingredient of the charge, Rules 5(1) and (2) of the Rule
of Business and Article 90 of the Constitution, which were
mentioned in the first Summary, the Respondent had the
final authority in the matter. This, as observed above, was
also not disputed by the learned counsel for the Respondent.
It is now admitted, and is proved on record, that it was the
Respondent who took the ultimate decision. With authority
comes the duty to exercise it whenever required by a lawful
order. The Respondent failed to obey a lawful order, which he
was constitutionally bound to obey.
68. After finding the factual allegations against the
accused to have been established beyond reasonable doubt,
we now advert to some legal aspects regarding his guilt and
punishment. We note in this context that key words used in
the Charge were “willfully flouted”, “disregarded” and
“disobeyed” which find a specific mention not only in Section
2(a) of the Contempt of Court Ordinance (V of 2003) defining
“civil contempt” but also in Section 3 of the said Ordinance
Crl.O.P.6/12 65
defining “Contempt of Court”. The said Ordinance V of 2003
derives its authority from Article 204(3) of the Constitution,
Article 204(2) of the Constitution itself empowers this Court
to punish a person for committing “Contempt of Court” and
the above mentioned words used in the Charge framed
against the accused also stand sufficiently covered by the
provisions of Article 204(2) of the Constitution. It is pertinent
to mention here that Section 221, Cr.P.C. dealing with Charge
and its forms clarifies that a Charge is to state the offence
and if the offence with which an accused is charged is given a
specific name by the relevant law then the offence may be
described in the Charge “by that name only”. According to
Section 221, Cr.P.C. “If the law which creates the offence does
not give it any specific name, so much of the definition of the
offence must be stated as to give the accused notice of the
matter with which he is charged”. It is further provided in
Section 221, Cr.P.C. that “The law and section of the law
against which the offence is said to have been committed shall
be mentioned in the charge”. In the case in hand not only the
name of the offence, i.e. contempt of court had been specified
in the Charge framed against the accused but even the
relevant Constitutional and legal provisions defining contempt
of court had been mentioned in the Charge framed. According
to Section 221(5), Cr.P.C. the fact that the Charge is made in
the terms noted above “is equivalent to a statement that every
Crl.O.P.6/12 66
legal condition required by law to constitute the offence
charged was fulfilled in the particular case”.
69. We further note that even if a Charge framed
against an accused for committing contempt of court is
established before a court still for finding him guilty or for
punishing him, even after establishing of his culpability, the
provisions of Section 18 of the Contempt of Court Ordinance
(V of 2003) require the following satisfactions to be recorded
by the Court:
“18. Substantial detriment.- (1) No
person shall be found guilty of contempt of
court, or punished accordingly, unless the
court is satisfied that the contempt is one
which is substantially detrimental to the
administration of justice or scandalizes
the court or otherwise tends to bring the court
or Judge of the court into hatred or ridicule.
(2) In the event of a person being found not
guilty of contempt by reason of sub-section (1)
the court may pass an order deprecating the
conduct, or actions, of the person accused of
having committed contempt.”
70. These provisions of the Contempt of Court
Ordinance clearly show that despite his culpability having
been established, a Court seized of a matter of contempt is
not to hold the offender guilty or punish him for every trivial
contempt committed and it is only a grave contempt having
the effects mentioned in Section 18(1) that may be visited
with a finding of guilt or punishment. It is important to note
Crl.O.P.6/12 67
in this context that the satisfaction of the Court mentioned in
section 18(1) regarding gravity of the contempt is to be
adverted to by it after commission of the contempt is duly
established and such satisfaction of the Court is neither an
ingredient of the offence nor a fact to be proved through
evidence. In our considered opinion such satisfaction is
purely that of the Court concerned keeping in view the nature
of the contempt found to have been committed, its potential
regarding detrimental effect upon administration of justice or
scandalizing the Court and its tendency to bring the Court or
the Judge into hatred or ridicule. At such stage the contempt
of Court attributed to the offender already stands established
and assessment of the tendency of the contempt to possibly
create the above mentioned detrimental effects is thereafter to
be undertaken by the Court for its own satisfaction in order
to decide whether to convict or punish the offender or not and
such satisfaction based upon judicially assessed possible
effects is not to be based upon proofs or evidence to be
produced during the trial. However, if the Court is not
satisfied about the above mentioned detrimental effects then
despite the contempt having been established and proved, it
may not convict or punish the offender and may resort to
merely deprecating the conduct or actions of the accused in
terms of Section 18(2) of the Ordinance. We may also add that
the satisfactions of the Court contemplated by Section 18(1)
of the Ordinance are the minimum thresholds to be crossed
Crl.O.P.6/12 68
and there is no limit upon a Court regarding not recording
satisfaction in respect of any graver detriment or tendency
made possible by the conduct or actions of an offender. In the
case in hand the accused is the highest Executive functionary
of the State of Pakistan and he has willfully, deliberately and
persistently defied a clear direction of the highest Court of the
country. We are, therefore, fully satisfied that such clear and
persistent defiance at such a high level constitutes contempt
which is substantially detrimental to the administration of
justice and tends not only to bring this Court but also brings
the judiciary of this country into ridicule. After all, if orders or
directions of the highest court of the country are defied by the
highest Executive of the country then others in the country
may also feel tempted to follow the example leading to a
collapse or paralysis of administration of justice besides
creating an atmosphere wherein judicial authority and
verdicts are laughed at and ridiculed.
71. It may be mentioned that the learned counsel for
the Respondent in his written submissions brought on the
record at the end of his oral arguments had specifically
adverted to the provisions of section 18 of the Contempt of
Court Ordinance and, thus, he was fully aware of the
applicability and implications of the said legal provision vis-àvis
the case against him. It is, however, another thing that
throughout his oral arguments and submissions the learned
counsel for the accused had failed to utter even a single word
Crl.O.P.6/12 69
on the subject. The Respondent was put on notice through
Option No.2 in the order dated 10.01.2012 (Ex.P22) of the
possible consequences of non-compliance of this Court’s
direction and the relevant portion of that order reads:
“5. This brings us to the actions we may
take against willful disobedience to and noncompliance
of some parts of the judgment
rendered and some of the directions issued
by this Court in the case of Dr. Mobashir
Hassan (supra). This Court has inter alia the
following options available with it in this
regard:
------------------------
------------------------
………It may not be lost sight of that,
apart from the other consequences, by
virtue of the provisions of clauses (g) and
(h) of Article 63(1) read with Article 113
of the Constitution a possible conviction
on such a charge may entail a
disqualification from being elected or
chosen as, and from being, a member of
Majlis-e-Shoora (Parliament) or a
Provincial Assembly for at least a period
of five years.”
72. For the above reasons we convicted and
sentenced the Respondent by short order on 26.04.2012,
as follows:
Crl.O.P.6/12 70
“For reasons to be recorded later, the
accused Syed Yousaf Raza Gillani, Prime
Minister of Pakistan/Chief Executive of the
Federation, is found guilty of and
convicted for contempt of court under
Article 204(2) of the Constitution of Islamic
Republic of Pakistan, 1973 read with
section 3 of the Contempt of Court
Ordinance (Ordinance V of 2003) for willful
flouting, disregard and disobedience of
this Court’s direction contained in
paragraph No. 178 of the judgment
delivered in the case of Dr. Mobashir
Hassan v. Federation of Pakistan (PLD
2010 SC 265) after our satisfaction that
the contempt committed by him is
substantially detrimental to the
administration of justice and tends to
bring this Court and the judiciary of this
country into ridicule.
2. As regards the sentence to be
passed against the convict we note that
the findings and the conviction for
contempt of court recorded above are likely
to entail some serious consequences in
Crl.O.P.6/12 71
terms of Article 63(1)(g) of the Constitution
which may be treated as mitigating factors
towards the sentence to be passed against
him. He is, therefore, punished under
section 5 of the Contempt of Court
Ordinance (Ordinance V of 2003) with
imprisonment till the rising of the Court
today.”
Judge
Judge
Judge
Judge
Judge
Judge
Judge
ISLAMABAD
26th April, 2012
Shirazi & Mudassar.
“APPROVED FOR REPORTING.”
Crl.O.P.6/12 72
Asif Saeed Khan Khosa, J.: I have had the privilege of
going through the proposed judgment authored by my learned brother
Nasir-ul-Mulk, J. and I am in respectful agreement with the same. I
would, however, add the following note to the proposed judgment.
2. In the context of the case in hand I am reminded of the
following unforgettable words of Khalil Gibran that paint a picture
which unfortunately appears quite familiar:
Pity the Nation
Pity the nation that is full of beliefs and empty of religion.
Pity the nation that wears a cloth it does not weave,
eats a bread it does not harvest,
and drinks a wine that flows not from its own wine-press.
Pity the nation that acclaims the bully as hero,
and that deems the glittering conqueror bountiful.
Pity the nation that despises a passion in its dream,
Pity the nation that raises not its voice
save when it walks in a funeral,
boasts not except among its ruins,
and will rebel not save when its neck is laid
between the sword and the block.
Pity the nation whose statesman is a fox,
whose philosopher is a juggler,
and whose art is the art of patching and mimicking.
Pity the nation that welcomes its new ruler with trumpeting,
and farewells him with hooting,
only to welcome another with trumpeting again.
Pity the nation whose sages are dumb with years
and whose strong men are yet in the cradle.
Pity the nation divided into fragments,
each fragment deeming itself a nation.
3. With an apology to Khalil Gibran, and with reference to the
present context, I may add as follows:
Pity the nation that achieves nationhood in the name of a religion
but pays little heed to truth, righteousness and accountability
which are the essence of every religion.
Crl.O.P.6/12 73
Pity the nation that proclaims democracy as its polity
but restricts it to queuing up for casting of ballots only
and discourages democratic values.
Pity the nation that measures honour with success
and respect with authority,
that despises sublime and cherishes mundane,
that treats a criminal as a hero and considers civility as weakness
and that deems a sage a fool and venerates the wicked.
Pity the nation that adopts a Constitution
but allows political interests to outweigh constitutional diktat.
Pity the nation that demands justice for all
but is agitated when justice hurts its political loyalty.
Pity the nation whose servants treat their solemn oaths
as nothing more than a formality before entering upon an office.
Pity the nation that elects a leader as a redeemer
but expects him to bend every law to favour his benefactors.
Pity the nation whose leaders seek martyrdom
through disobeying the law
than giving sacrifices for the glory of law
and who see no shame in crime.
Pity the nation that is led by those
who laugh at the law
little realizing that the law shall have the last laugh.
Pity the nation that launches a movement for rule of law
but cries foul when the law is applied against its bigwig,
that reads judicial verdicts through political glasses
and that permits skills of advocacy to be practised
more vigorously outside the courtroom than inside.
Pity the nation that punishes its weak and poor
but is shy of bringing its high and mighty to book.
Pity the nation that clamours for equality before law
but has selective justice close to its heart.
Pity the nation that thinks from its heart
and not from its head.
Indeed, pity the nation
that does not discern villainy from nobility.
4. I must clarify that I do not want to spread despair or
despondency and it may be appreciated that no reform or
improvement is possible until the ills or afflictions are identified and
addressed. The respondent’s conduct in this case regrettably appears
to be symptomatic of a bigger malady which, if allowed to remain
Crl.O.P.6/12 74
unchecked or uncured, may overwhelm or engulf all of us as a nation
and I recall here what Johne Donne had written:
Each man’s death diminishes me,
For I am involved in mankind.
Therefore, send not to know
For whom the bell tolls,
It tolls for thee.
5. Khalil Gibran had also harped on a somewhat similar theme as
under:
On Crime and Punishment
Oftentimes have I heard you speak of one who commits a wrong as
though he were not one of you, but a stranger unto you and an
intruder upon your world.
But I say that even as the holy and the righteous cannot rise
beyond the highest which is in each one of you,
So the wicked and the weak cannot fall lower than the lowest
which is in you also.
And as a single leaf turns not yellow but with the silent knowledge
of the whole tree,
So the wrong-doer cannot do wrong without the hidden will of you
all.
Like a procession you walk together towards your god-self.
You are the way and the wayfarers.
And when one of you falls down he falls for those behind him, a
caution against the stumbling stone.
Ay, and he falls for those ahead of him, who though faster and
surer of foot, yet removed not the stumbling stone.
And this also, though the word lie heavy upon your hearts:
The murdered is not unaccountable for his own murder,
And the robbed is not blameless in being robbed.
The righteous is not innocent of the deeds of the wicked,
And the white-handed is not clean in the doings of the felon.
Yea, the guilty is oftentimes the victim of the injured,
And still more often the condemned is the burden bearer for the
guiltless and unblamed.
You cannot separate the just from the unjust and the good from the
wicked;
For they stand together before the face of the sun even as the black
thread and the white are woven together.
And when the black thread breaks, the weaver shall look into the
whole cloth, and he shall examine the loom also.
6. I deem it important and relevant to explain here the conceptual
basis of the law regarding contempt of court. The power to punish a
person for committing contempt of court is primarily a power of the
Crl.O.P.6/12 75
people of this country to punish such person for contemptuous
conduct or behavior displayed by him towards the courts created by
the people for handling the judicial functions of the State and such
power of the people has been entrusted or delegated by the people to
the courts through the Constitution. It must never be lost sight of that
the ultimate ownership of the Constitution and of the organs and
institutions created thereunder as well as of all the powers of such
organs and institutions rests with the people of the country who have
adopted the Constitution and have thereby created all the organs and
institutions established under it. It may be advantageous to reproduce
here the relevant words of the Preamble to the Constitution of the
Islamic Republic of Pakistan, 1973:
“we, the people of Pakistan ------- Do hereby, through our
representatives in the National Assembly, adopt, enact and give to
ourselves, this Constitution.”
It is, thus, obvious that a person defying a judicial verdict in fact
defies the will of the people at large and the punishment meted out to
him for such recalcitrant conduct or behavior is in fact inflicted upon
him not by the courts but by the people of the country themselves
acting through the courts created and established by them. It may be
well to remember that the constitutional balance vis-à-vis trichotomy
and separation of powers between the Legislature, the Judiciary and
the Executive is very delicately poised and if in a given situation the
Executive is bent upon defying a final judicial verdict and is ready to
go to any limit in such defiance, including taking the risk of bringing
down the constitutional structure itself, then in the final analysis it
would be the responsibility of the people themselves to stand up for
defending the Constitution and the organs and institutions created and
established thereunder and for dealing with the delinquent
appropriately. It shall simply be naïve to underestimate the power of
the people in matters concerning enforcement of their will. The recent
phenomenon known as the Arab Spring is too fresh to be ignored or
forgotten. Going back a little, when told about the Pope’s anger over
Crl.O.P.6/12 76
the ruthless Stalinist suppression of dissent within Russia Joseph
Stalin dismissively made a scornful query “The Pope? How many
divisions does he have?" History tells us that the will of the Russian
people ultimately prevailed over the Soviet Union’s army of countless
divisions. A page from our own recent history reminds us that the
Chief Justice of Pakistan did not possess or control any division when
he refused to obey the unconstitutional dictates of General Pervez
Musharraf, who commanded quite a few divisions, and still emerged
victorious with the help of the people. The lesson to be learnt is that if
the cause is constitutional and just then the strength and support for
the same is received from the people at large who are the ultimate
custodians of the Constitution. I am not too sure as to how many
divisions would a population of over 180 million make!
7. The respondent is the Chief Executive of our Federation who
has openly and brazenly defied the Constitutional and legal mandate
regarding compliance of and obedience to this Court’s judgments and
orders. The following words of Justice Louis Brandeis of the United
States Supreme Court in the case of Olmstead v. United States (227
U.S. 438, 485) seem to be quite apt to a situation like this:
“In a government of laws, existence of the government will be
imperiled if it fails to observe the law scrupulously. Our
Government is the potent, the omnipresent teacher. For good or for
ill, it teaches the whole people by its example. Crime is
contagious. If the Government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto
himself; it invites anarchy.”
The respondent is our elected representative and our Prime Minister
and in his conviction lies our collective damnation. This surely calls
for serious introspection. I believe that the proposed judgment
authored by my learned brother Nasir-ul-Mulk, J. is a step towards the
right direction as it kindles a flame of hope for a future for our nation
which may establish a just and fair order, an order wherein the law
rules and all citizens are equal before the law.
Crl.O.P.6/12 77
(Asif Saeed Khan Khosa)
Judge

 
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