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Petitioner: SHAHID ORAKZAI VS Respondent: Mian MUHAMMAD NAWAZ SHARIF, PRIME MINISTER OF JUDGMENT
Court Name: Peshawar High Court Judge(s): Yahya Afridi Title:SHAHID ORAKZAI vs Mian MUHAMMAD NAWAZ SHARIF, PRIME MINISTER OF
JUDGMENT
Reported As: 2016 P Cr. LJ 1017 Result: Appeal dismissed Judgment JUDGMENT YAHYA AFRIDI, J.---Mr. Shahid Orakzai has, through the instant Cr. Misc.(COC) No,313/2014, moved this Court seeking to convict Muhammad Nawaz Sharif, the Prime Minister of Islamic Republic of Pakistan and Mr. Justice Mazhar Alam Khan Miankhel, the Chief Justice, Peshawar High Court, Peshawar, for contempt of Court. 2. The brief and essential facts, leading to filing ot. The instant petition, are that the present Petitioner had earlier moved Cr. R. No,87/2013 (Shahid Orakzai v. Bahader Khan), against the order of the Worthy Additional Sessions Judge-V, Kohat dated 2.7.2013("Criminal Revision Petition"), wherein it was observed that: "By applying this touch stone it would transpire that Mr. Shahid Orakzai has no locus standi to appear on behalf of the complainant. He is not even included in the definition of legal heirs given at section 305, Cr.P.C. In presence of the widow and issues of the deceased. Therefore, the application so moved by him cannot be considered as being part and parcel of the judicial record. In these circumstances, henceforth Mr. Shahid Orakzai cannot appear on behalf of the complainant." 3. In order to appreciate the alleged contempt agitated in the instant petition, it would be appropriate to enumerate the sequence of events as they unfolded during the proceedings in the Criminal Revision Petition. The same are as follows:- 22.7.201.3. Hon'ble Mr. Justice Qaiser Rashid first heard the petition and passed the following order:- "Notice be issued to the learned Advocate General, Khyber Pakhtunkhwa, Peshawar to assist this Court on the legal issues raised by the petitioner in the instant revision petition. The office is
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directed. To fix the petition in the 3rd week of August, 2013." 15.8.2013. Hon'ble Mr. Justice Ikramullah Khan made the following observations:- "As I remained associated in this case in capacity of AAG of Khyber Pakhtunkhwa before the Hon'ble Supreme Court of Pakistan, therefore, this case may not be fixed before this Bench. As the respondent has not been summoned in this case. Propriety demands that respondent/accused may also be given notice of this petition along with legal heir of the deceased Major Khalid Saeed Orakzai on the given address. Adjourned to a date to be fixed by the office. " 30.9.2013. Hon'ble Mr. Justice Yahya Afridi after hearing the submissions of the parties observed:- "Before this Court proceeds with this case, it would be appropriate that respondent No,1 be served through Supdi Bannu Jail for 7.10.2013." Muhammad, son of deceased Major Khalid Saeed Orakzai, present in Court, states that he represents his mother, brother and sister and would request that they should not be served with any notice in the present case, as they did not want to associate in any manner with the case in hand. Office is directed to ensure that no notices are sent to, (I) Mst .Zahida Rasoon, (Wife), (2) Muhammad (Son), (3) Major Yasoo Maseehullah (son) and (4) Mst. Laila Khalid (daughter), of deceased Major Khalid Saeed Orakzai. Muhammad, produced some documents in Court, which have been placed on file. However, the learned counsel for the petitioner is advised to ensure that the certified copies of all relevant documents, which he intends to refer in the present petition, be annexed with the petition before the next date of hearing. This Court at this stage, is not going to call the record, as it has been stated by the worthy Court of Session to be an old case." 7.10.2013. Ms. Justice Musarrat Hilali adjourned the case on the ground: "Latter wants time to file power of attorney on the next date. Allowed. Adjourned to 21.10.2013." 21.10.2013. Hon'ble Mr. Justice Asadullah Chamkani observed: "Despite date by Court, the petitioner and respondent No,1 are not in attendance. Office is directed to issue fresh notice to them for a date in office." 29.11.2013, 2.12.2013. Hon'ble Mr. Justice Yahya Afridi, adjourned the case. 16.12.2013. Hon'ble Mr. Justice Yahya Afridi, adjourned the case: "Learned counsel for the respondent seeks adjournment, which is resisted by the petitioner. Let it be the last chance. Adjourned to 20.1. 2014. " 20.1.2014. Hon'ble Mr. Justice Roohul Amin passed the following order:- "Former states that this case has been heard partly by his lordship Mr. Justice Yahya Afridi, therefore, be placed before the same Bench. Perusal of order sheets reveals that no doubt on various dates the case has been fixed before his lordship Mr. Justice Yahya Afridi, but no such order is available to show that it is a part heard case, however, the petitioner is insisting for adjournment. The other side has no objection. Adjourned to a date in office." 24.2.2014. Hon'ble Mr. Justice Qaiser Rashid observed: "On the strike call of the KPK Bar Council, lawyers are not in attendance. However, the petitioner states that the present case was heard at length by his lordship M. Justice Yahya Khan Afridi, therefore, requests that it be placed before the same bench. Being so, the office is directed to place this petition before his lordship for hearing. Adjourned to a date in office." 23.5.2014. Hon'ble Mr. Justice Yahya Afridi observed: "Let this case be heard by any Bench. Adjourned to 16.6.2014." 16.6.2014. Hon'ble Mr. Justice Afsar Shah adjourned the case: "In view of the request made by the learned AAG, it is adjourned to a date in office."
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1.9.2014. Hon'ble Mr. Justice Qaiser Rashid adjourned the Criminal Revision Petition to 5.9.2014 with the observations: "In view of the strike call given by the, Pakistan Bar Council the learned counsel for respondent No,1 is not in attendance. Adjourned to 05.09.2014 with directions to the office to ensure the service of the learned counsel for respondent No,1." 5.9.2014. Mr. Justice Mazhar Alam Miankhel, the Hon'ble Chief Justice, observed:- "Former (Shahid Orakzai), doesn't want to argue this petition before this Bench. Adjourned to a date in office." 8.9.2014. The instant Cr. Misc. (COC) No,313/2014, was filed, wherein Mr. Shahid Orakzai prayed that: "Therefore, in view of the above, the High Court may initiate contempt proceedings against the prime minister and the Chief Justice of the High Court." 4. The worthy Chief Justice was pleased to mark the contempt petition before this single Bench for adjudication thereof. 5. On reviewing the contents of the instant contempt petition, this Court framed three legal issues, which warranted determination; (i) Whether after filing the instant petition, the informer, Mr. Shahid Orakzai, has any "locus standi" to pursue the instant petition. (ii) Whether a High Court can initiate any proceedings of contempt against another Judge of the same Court. (iii) Whether the assertions made in the instant petition constitute the offence of contempt as enumerated in Contempt of Court Ordinance, 2003 and Article 204 of the Constitution of Islamic Republic of Pakistan, 1973, and if so, whether there is sufficient evidence to support the assertion so made in the petition. 6. Keeping in view the sensitivity and seriousness of the aforementioned issues, this Court deemed it pertinent to put the worthy Advocate-General Khyber Pakhtunkhwa and Barrister Waqar Ahmad Khan, to assist the Court, as friends of the Court. 7. Mr. Shahid Orakzai submitted his submission on the three legal queries, in writing, the particulars thereof were; that the petitioner is not an informer in the eyes of law, as he had not laid any information before the Court in terms of section 11 of the Contempt of Court Ordinance, 2003 ("Ordinance"); that he was a person connected with the proceedings, of the Criminal Revision Petition, wherein the alleged contempt had been committed; that as far as the proceedings against the worthy Chief Justice in contempt proceedings are concerned, he sought reliance upon Articles 195, 196, 200, 206, 207 and 209, of the Constitution of Islamic Republic of Pakistan, 1973, ("Constitution"), and contended that contempt proceedings can be initiated against all, including the worthy Chief Justice; and that finally, the main factual basis of the petitioner's complaint was that the very act of fixing the main Criminal Revision before the worthy Chief Justice, was on direction of the Prime Minister and intended for its dismissal and thereby resulted in diverting the course of justice and contempt of Court, as envisaged under section 6 of the Ordinance. 8. The worthy Advocate-General, Khyber Pakhtunkhwa, at the very outset, submitted that the Criminal Revision Petition was not maintainable, as the petitioner was not a Vali', as envisaged under section 305 of Pakistan Penal Code, 1860, ("P.P.C. "); that as far as the 'locus standi' of the petitioner to file the present petition, the learned Advocate-General emphasized that the petitioner was an informer of the alleged contempt to the Court, and, thereafter, was divested of any legal right to pursue the same; that after the information was rendered to the Court, it was between the Court and the contemnor; that in fact, the State through the Advocate-General was to prosecute the contemnor, in case, the Court was to proceed in contempt proceedings; that the authority of the worthy Chief Justice to fix cases was beyond any doubt, as clearly provided in the Peshawar High Court (Establishment of Benches) Rules; 1982 ("Rules of 1982") and the High Court Rules,
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Peshawar, reliance was sought on the judgments in Malik Hamid Satfaraz's case (PLD 1979 Supreme Court 991), Muhammad Ashraf's case (PLD 1993 Peshawar 151), M. Aftab Saigal's case (1994 MLD 1659), Mian Muhammad Nawaz Sharif's case (PLD 1995 Lahore 532), Humayun Khan's case (1998 PLC (C. 5) 34), Supreme Court Bar Association's case (PLD 2002 Supreme Court 939), Ch. Muhammad Siddique's case (PLD 2005 Supreme Court 186), Jaffar Hussain 's case (2008 CLC 1609), Shafiaq Ahmad's case (PL) 2008 Peshawar 100), Federation of Pakistan's case (PLD 2009 Supreme Court 284), Muhammad lqbal's case (2010 $CMR 632) and Mehr Rehman's case (2013 PLc (c. S.)165). 9. Barrister Waqar Ali, in reference to the three queries made by this Court contended that the informer after informing the Court about the alleged contempt was not an alien to the proceedings and could pursue the same during the contempt proceedings and even file an appeal against any order passed by the Court, as envisaged under section 19 of the Ordinance; that contempt of Court could be initiated against a worthy Judge of High Court; that finally, so far as the fixation of the Criminal Revision Petition betore the worthy Chief Justice is concerned, he contended that the same was in accordance with the High Court Rules and thus no contempt of Court was committed by its fixation before the worthy Chief Justice. In support of his submissions, the worthy counsel sought reliance upon various judgments of the superior courts including Hakam Qureshi's case (PLD 1976 Supreme Court 713), Muhammad Ibrahim's case (PLD 2000 Supreme Court 71) and Dr. Ali Sana Shakir Bokhari's case (2001 SCMR 519). 10. Valuable submissions of the petitioner, Advocate General, Khyber Pakhtunkhwa, and Barrister Waqar Ahmad Khan, were considered and the findings of this Court on the three legal issues enumerated hereinabove, are as follows, in seriatim. LOCUS STANDI OF INFORMER. 11. This Court is not in consonance with the contention of the petitioner that he is not an informer but a person, who is aggrieved of the fixation of the Criminal Revision Petition before the Chief Justice of the Peshawar High Court, Peshawar. The contempt proceedings are independent proceedings, which may, inter alia, be initiated by information rendered to the High Court. In the present case, the petitioner, by filing the instant contempt petition, became an informer of the alleged contempt. As far as his status as a person, aggrieved of the fixation of the Criminal Revision Petition before the worthy Chief Justice is concerned, passing any findings thereon, would surely prejudice the contesting claims of the parties in the said petition. Hence, this Court shall refrain therefrom in the present contempt proceedings. 12. The status of an informer in a contempt proceedings, has been exhaustively discussed by the Apex Court in a case earlier moved by the present petitioner titled Mr. Shahid Orakzai V. Pakistan Muslim League (Nawaz Group) and eight others (2000 SCMR /969), wherein the Apex Court, relying upon, inter alia, its earlier judgments in Chaudhry Zahoor Elahi's case (PLD 1975 SC 383) and Muhammad Ishaa's case (PLD 1957 SC 293) clearly held that: "26. Mr. Shahid Orakzai, appellant, who appeared in person, was heard for some time and allowed ten minutes to conclude his submissions keeping in view the fact that a contempt matter is between the Court and the contemnor alone and a stranger has nothing to do with such proceedings as the role of an informer ends once the Court takes the cognizance of the matter at his instance........ ................................ 32. Mr. Sayeed, placed reliance on the book titled "Law of Contempt of Courts", 1999 Edition by lyer, revised by Justice S. K. Mukarji, at page 403 and submitted that in a contempt case, the matter is between the Court and the alleged contemnor and the role of the person who moves the machinery of the Court is restricted to bringing the matter to the notice of the Court certain facts
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constituting contempt of Court. Precisely, in a contempt proceeding, there are only two parties, namely, the Court and the contemnor and it may be one of the reasons, which weighed with the Legislature for not giving right of appeal in a contempt matter............. ........................... 34. It is important to note that the matter of contempt of a Court is essentially between the Court and the contemnor/s, therefore, it is up to the Court whose contempt has been committed to take any action against a contemnor or accept apology on his behalf and even an Appellate Court cannot direct such Court to proceed with the contempt or to reject the apology. It may also be clarified that where a third party (a stranger) brings to the notice of the Court that contempt of that Court has been committed, the Court can take notice on his complaint/ application. However, entertainment of such application/ complaint does not ipso facto give that person the right to prosecute the contemnors on behalf of the Court as had been claimed by Shahid Orakzai in the present proceedings. From the analysis of the case-law regarding the role of the Attorney-General in contempt matters, reproduced above, the matter is to be prosecuted by the learned Attorney- General and once the Court has assumed jurisdiction in such a matter, the Court is not bound to hear the person moving the Court." In view of the clear enunciation of the principle laid down by the Apex Court, it is by now clear and settled that the informer, having brought to the attention of the Court an alleged contempt of Court is, thereafter, divested of any vested right to pursue the same. The matter, thereafter, is essentially between the Court and the accused-contemnors. However, an exception to the above principle has been introduced in the Ordinance, wherein under subsection (2) of section 11, any person laying false information relating to the commission of an alleged judicial contempt shall himself be liable to be proceeded against for contempt of Court. 13. Before parting with this issue, it would be important to address the contention of Barrister Waqar Ahmad Khan, that section 19 of the Ordinance, does not restrict the right of appeal only to the State or the person convicted of the offence of contempt of Court, and hence the informer may also file an appeal against the dismissal of the contempt application. This Court is not in accord with the said submission of the worthy counsel. Right of appeal is a substantive right, and can only be availed, if it is clearly and expressly provided under the enabling statute. It is noted with concern, that the legislature, while enacting Section-19 of the Ordinance, only provided the forum of appeal, without specifying the persons, who had the right of appeal. This omission on the part of the legislature is meaningful. However, the person, convicted of the offence of contempt of Court, cannot be rendered remediless. He and none other can move the appellate forum in appeal against his conviction. In case, the contempt petition is dismissed, the proceedings are terminated and not even the State or the informer can agitate the same in appeal, CONTEMPT PROCEEDINGS AGAINST A JUDGE OF A HIGH COURT. 14. Earlier, our Courts were reluctant to initiate contempt proceedings against a Judge of a High Court, as the Judge was personified as the High Court. This view was prominently reflected in the judgments of the Superior Courts of our jurisdiction, including Malik Feroz Khan Noon's case (PLD 1958 SC 333), Jamal Shah's case (PLD 1966 Sc 01) Prakash Chand's case (AIR 1998 SC 1344) and Mueebur Rehman Shami's case (PLD 1973 Lahore 778). 15. This Judicial reluctance has, with time, given way to more introspection by the Superior Courts, and recently contempt proceedings have been initiated even against Judges of the Superior Judiciary. In this regard, the leading decision was taken by the Apex Court in Justice Hasnat Ahmed Khan's case (PLD 2011 SC 680), wherein it laid down that: "54. The facts and circumstances which have been noted hereinabove have to be examined in juxtaposition with the facts and circumstances of the judgments relied upon by Sheikh Zameer Hussain, Sr. Advocate Supreme Court as well as Syed Ali Zafar, Advocate Supreme Court. Detailed
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study of these judgments indicates that there is no comparison between the facts of these cases and the facts of the instant case. In none of those judgments any of the Judges intended to be proceeded against for contempt for deviation from the Constitutional Provisions, whereas, in the instant case, the appellants instead of showing allegiance to Pakistan and to preserve and protect the Constitution in terms of the oath, opted to be obedient to one man rule, essentially without any constitutional authority. If such practice is followed or allowed to be followed, there will be no end to the Constitutional deviations by the mighty persons; like one who has a gun in his hand and sitting on horse's back, capable of driving the herd of sheep according to his command, not considering anyone as human beings or persons having rights under the Constitution. And no sooner the mischievous object of self service is achieved by show of force, allegedly the situation would be reversed as to the position prevailing prior to such deviation. Then it would not be the rule of law but the rule of Martial Law. 55. In view of above elaborated discussion notwithstanding the observations of the learned 4- Member Bench of this Court about initiating proceedings of contempt of Court against the Judges of the Superior Courts, it is added that contempt proceedings have been initiated against the appellants and others in view of the peculiar circumstances essentially for supporting the unconstit actions, deeds, omissions and commissions committed by the then Chief of Army Staff, prima facie instead of obeying to the order of the Supreme Court dated 3.11.2007 as it has been held in the Sindh High Court Bar Association's case. And as validation, legitimacy has not been granted to the unconstitutional acts of 3.11.2007 by the Parliament including protection to the appellants to deviate from the constitutional appointment and oath, therefore, it is held that from the date of passing of Eighteenth Constitutional Amendment dated 20.4.2009 they are no more Judges of the High Courts under the Constitution, thus no immunity is available to them either. 56. The plea of Sheikh Zamir Hussain, learned Sr. Advocate Supreme Court that the actions of the appellants be condoned, would tantamount to once again reverting back to the doctrine of necessity, which has already been buried vide judgment in Sindh High Court Bar Association's case and if such concession is extended to them, other beneficiaries, who are responsible directly or indirectly for violation of the Constitution, shall also be benefited, therefore, the plea is declined. 57. The proposition of Mr. Ali Zafar, learned counsel that writ cannot be issued by Judges against other Judges need not be discussed in view of the conclusion drawn hereinabove, that appellants had already been declared not to be the Judges of the High Courts and secondly, there is difference between issuing the writ by the Judges against each others and to issue the Contempt proceedings for willful flouting or disregarding the order dated 3.11.2007 in respect whereof 14- Member Bench in the case of Sindh High Court Bar Association (ibid) has held as follows: "131. On a perusal of the aforesaid excerp'ts from the print and the electronic media, we are left with no manner of doubt that the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case was widely covered both in the electronic and print media. The fact that the said order came fully in the knowledge of all Judges of Supreme Court and High Courts by means of the coverage in the electronic and print media is in line with the law laid down in the case of Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lah. 130) wherein the following parameters for the purpose of taking judicial notice of press reports, quoted with approval by this Court in the case of Watan Party (supra) were laid down.............. .........Thus, all the Judges knew that a restraint order had been passed by the Supreme Court and also that Abdul Hameed Dogar, J, and some other Judges had made oath in violation of the said order. In fact, all and sundry in the length and breadth of the country knew about it. All such Judges, therefore, willfully violated the order dated 3rd November; 2007 passed by a seven member Bench of this Court in Wajihuddin Ahmed's case."
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16. When the provisions of the Ordinance are carefully reviewed, it is noted that there is no exclusion clause barring contempt proceedings against a Judge of the Superior Judiciary. Moreover, clause (c) of subsection (1) of section 6 of the Ordinance provides for the offence of a criminal contempt as under: "A criminal contempt shall be deemed to have been committed, if a person. (a).... (b).... (c) Commits any other act with intent to divert the course of justice." The aforementioned definition of a criminal contempt of Court clearly envisages the commission of the said offence by any person (including a Judicial Officer), who acts with intent to divert the course of justice. Thus, if the /allegations of Mr. Shahid Orakzai are correct that the Criminal Revision Petition was intentionally fixed by Mr. Justice Mazhar Alam Khan Miankhel, on the instructions of Muhammad Nawaz Sharif, before a Bench headed by him to dismiss the same, then surely a contempt was committed and this Court would be failing in its legal duty, if cognizance is not taken and contempt proceedings are not initiated against the nominated contemnors. WHETHER THE ALLEGATIONS CONSTITUTE A CONTEMPT OF COURT. 17. The main thrust of the petitioner's allegations is that Mr. Justice Qaiser Rashid Khan, had adjourned the case on 01.09.2014 and rendered a date by Court (05.09.2014) and thus the Criminal Revision Petition ought to have been fixed on the said fixed date before the same worthy Judge and not before Mr. Justice Mazhar Alam Khan Mrankhel. The fallacy of the assertions is apparent from the record. When we review the order sheets of Criminal Revision Petition, it is noted that Mr. Shahid Orakzai, earlier on 24.2.2014 objected to the case being heard by Honourable Mr. Justice Qaiser Rashid Khan, and had in fact requested that the case be fixed before the present Bench. In the circumstances, objecting to the petition being heard by Mr. Justice Mazhar Alam Khan Miankhel, and demanding that the same to have been heard by Mr. Justice Qaiser Rashid Khan, is completely contrary to the consistent stance taken by the present petitioner. 18. Having considered the inconsistency and the self contradiction in the factual assertions made by Mr. Shahid Orakzai, it would not be appropriate to leave the matter without adjudging the legal aspect of fixation of cases in the Peshawar High Court, Peshawar. It is noted that the exclusive domain of fixation of cases remains with the Chief Justice. It is also an admitted position that a case fixed before a Bench of the High Court is not necessarily fixed and heard by the…
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