Full Judgment Text & Judicial Ruling

2026 P Cr. L J 21 [Islamabad] Before Saman Rafat Imtiaz, J Ch. Fawad Ahmed---Petitioner Versus Federation of Pakistan through Secretary Ministry of Interior and another---Respondents Writ Petitions Nos. 4560 of 2023 and 1976 of 2024, decided on 25th July, 2024. (a) Constitution of Pakistan--- ----Art. 204--- Criminal Procedure Code (V of 1898), S. 1(2)--- Contempt of Court--- Powers of High Court--- Provision of Criminal Procedure Code, 1898--- Applicability--- Power of High Court to punish for contempt is an inherent jurisdiction and irrespective of whether such power conferred by the Constitution, constituted a fresh power or continuation of an existing power, the jurisdiction is a special one, which as such is excluded from the purview of S.1(2) Cr.P.C. (b) Criminal Procedure Code (V of 1898)--- ----S. 1(2)---Criminal proceedings--- Special law or special jurisdiction--- Applicability--- Provisions of Criminal Procedure Code, 1898 do not affect a special law or special jurisdiction or a special form of procedure provided under a law for the time being in force only in the absence of any specific provision to the contrary in such law. (c) Elections Act (XXXIII of 2017)--- ---- Ss. 2 (viii) & 199--- Term Code --- Scope--- Term Code has been defined under S.2(viii) of Elections Act, 2017 to mean Criminal Procedure Code, 1898--- Specific provision in Elections Act, 2017 has expressly made Cr.P.C. applicable upon the stipulated matters to the extent provided thereby bringing it within the fold of Cr.P.C., to such extent--- By virtue of S.199 of Elections Act, 2017 read with Ss. 1(2) & 5(2), Cr.P.C., provisions of Cr.P.C., apply to reporting, investigation, summons, warrants, enquiry, or trial of the offence of contempt conducted by Election Commission of Pakistan to the extent that no provision or sufficient provision exists for such matter in the Elections Act, 2017 and Election Rules, 2017. (d) Elections Act (XXXIII of 2017)--- ---- S. 10--- Criminal Procedure Code (V of 1898), S. 352--- Constitution of Pakistan, Arts. 10-A & 199--- Constitutional petition--- Contempt proceedings--- Fair trial--- Open Court--- Grievance of petitioner / accused was that proceedings in jail were not proceedings in open Court--- Validity--- Effect of S.352, Cr.P.C., was that the place in which Election Commission held trial of the offence of contempt was deemed to be an open Court to which public generally could have access to so far as the same could conveniently contain them--- Public trial was even otherwise a requirement of a fair trial pursuant to Art.10-A of the Constitution--- Power to punish contempt results in a conviction and a citizen can only be convicted through the exercise of judicial power and such power is to be exercised in accordance with Art.10-A of the Constitution--- Election Commission was bound to exercise its power to punish contempt under S.10 of Elections Act, 2017 and in accordance with Art.10-A of the Constitution--- Petitioner was entitled to a fair trial under Art.10-A of the Constitution, which entailed public hearing--- Orders in question deprived the petitioner of his Constitutional right to a fair trial by calling a jail trial of alleged contempt against him without cogent reason and without ensuring that jail trial was nevertheless an open trial and as such the proceedings were ultra vires the Constitution and illegal--- Orders in question were without lawful authority and superstructure built upon them must fall to the ground--- High Court set aside orders and notification in question as the same were without lawful authority--- Contempt proceedings / trial conducted in jail against petitioner did not constitute an open trial; it stood vitiated as it was in violation of Art.10-A of the Constitution--- Constitutional petition was allowed, in circumstances. Lieutenant General (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735; Muslim Commercial Bank Limited and another v. Momin Khan and others 2002 PLC (C.S.) 898; Alam Dad Laleka v. Election Commission of Pakistan PLD 2020 Isl. 20; Election Commission of Pakistan and others v. Pakistan Tehreek-e-Insaf and others PLD 2024 SC 267; Naveed Akhtar v. The State PLD 2021 SC 600; The State v. Khalid Masood Regional Director Pakistan Narcotics Board, Lahore and 3 others PLD 1996 SC 42; Talal Ahmed Chaudhary v. The State 2019 SCMR 542; Contempt Proceedings against Imran Khan, Chairman Pakistan Tehreek-e-Insaf PLD 2014 SC 367; Ghulam Qadir v. Sharimati Sadori Baie and 2 others 2011 YLR 2560; Abbas Ali and another v. Asif Abbas and 3 others 2016 CLD 555; Mirpurkhas Sugar Mills Limited v. Federation of Pakistan 2013 MLD 433; Imran Ahmed Khan Niazi v. Federation of Pakistan and others PLD 2024 Isl. 155; Mst. Barkat Bibi v. Khushi Muhammad and others 1994 SCMR 2240; Fazal-ur-Rehman and 2 others v. Begum Sughra Haque, 2000 MLD 562; Sabir Ali v. Mst. Zubaida Bibi 1993 MLD 321; Secretary to Government (West Pakistan) Now N.W.F.P. Department of Agriculture and Forests, Peshawar and 4 others PLD 1978 sc 242; Vice-Chancellor Agriculture University, Peshawar and others v. Muhammad Shafiq and others 2024 SCMR 527; Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969; Suo Motu Contempt Proceedings initiated against Mr. Daniyal Aziz, Federal Minister PLD 2018 SC 738; Muhammad Ibrahim and others v. Syed Ahmad and others PLD 2000 SC 71; Sukhdev Singh v. Honourable C.J.,S. Teja Singh and the Honourable Judge of the Pepsu High Court at Patiala AIR 1954 SC 186; In the matter of: Habib son of Sadullah Khan AIR 1926 Lah. 1; In the matter of: Muslim Outlook, Lahore, AIR 1927 Lah. 610; Crown v. State v. Oadna Jabt Mulviya and another AIR 1954 All 523; Abdur Rahman PLD 1950 Baghdad-ul-Jadid 36; Abdul Hayee Khan v. The Crown and another PLD 1956 (W.P.) Lahore 424; Messrs Green Vally Trading Company v. Additional Director of Adjudication State Bank of Pakistan and another 2003 YLR 1185; Saleem Ahmed Jan v. Deputy Commissioner, Islamabad and 6 others 2024 CLC 953; Jawwad S. Khawaja and others v. Federation of Pakistan and others PLD 2024 SC 337; Muhammad Iqbal and others v. Nasrullah 2023 SCMR 273; Amir Akber Khan and others v. National Accountability Bureau and others PLD 2022 Sindh 440 and Imran Ahmed Khan Niazi v. Federation of Pakistan and others PLD 2024 Isl. 155 ref. Faisal Fareed, Tariq Khokhar, Ch. Fawad Ahmed and Bina Shahid for Petitioner. Imran Farooq and Raja Zamir-ud-Din Ahmed A.A.Gs for Respondents. Barrister Saman Mamoon for Respondent No. 1/ECP. Ms. Saima Tariq Janjuah, Deputy Director (Law) Election Commission of Pakistan. A. Raheem, S.O. (Litigation I) MOI. Date of hearing: 11th July, 2024. Judgment Saman Rafat Imtiaz, J.---This Judgment shall decide the above titled Writ Petitions, which involve common questions of law arising from similar facts. 2. The Petitioner [Chaudhary Fawad Ahmed] vide W.P. No. 4560 of 2023 has sought (i) setting aside of Orders dated 30.11.2023 ( Impugned Order I ) and 12.12.2023 ( Impugned Order II ) whereby the Respondent No. 1 [Election Commission of Pakistan ( ECP )] ordered the contempt proceedings against the Petitioner to be conducted in Adyala Jail, Rawalpindi ( Adyala Jail ); and (ii) directions to the ECP to proceed with the hearing in open court as conducted earlier in the premises of ECP and to the relevant authorities to produce the Petitioner on each date of hearing. 3. The Petitioner vide W.P. No. 1976 of 2023 has sought declaration that the Notifications No. F. No. 6/4/2023-Lit-1 dated 8.12.2023 ( Impugned Notification No. I ) and 20.12.2023 ( Impugned Notification No. II ) whereby the Respondent No. 1 [Federation of Pakistan through the Secretary, Ministry of Interior ( FOP )] has issued directions to the concerned authorities to provide all administrative facilitation including security at all subsequent hearings to be conducted in Adyala Jail as per directions of the Respondent No. 2 [ECP] are void, illegal and unlawful and that all proceedings pursuant to the Impugned Notifications are illegal and of no effect. 4. As per the memoranda of Petitions the Petitioner is a law practitioner and member of the Supreme Court Bar Association of Pakistan. He was elected as Member, National Assembly of Pakistan from NA-97 (Jhelum) and after being chosen for the Federal Cabinet, served in the Ministries of Information and Broadcasting as well as Science and Technology in the erstwhile Pakistan Tehreek-e-Insaf government. The Petitioner has allegedly been targeted by his political opponents in order to keep him out of the elections held in 2024 by lodging false, frivolous, and unfounded cases against him in which he has been arrested merely to vex him and his family. The Petitioner was in the custody of the National Accountability Bureau on physical remand at the time of filing of W.P. No. 4560 of 2023. The Petitioner being under trial prisoner was being produced in various Courts. The contempt proceedings were initiated against the Petitioner for the alleged use of intemperate language and contemptuous remarks against the ECP during media talk. 5. During the proceedings of contempt the ECP issued the Impugned Order No. I ordering that the contempt matter against the Petitioner shall be conducted in Adyala Jail by the ECP as proceedings of similar matter of contempt against Imran Khan shall be conducted in Adyala Jail, Rawalpindi hence the Ministry of Interior was directed to notify the trial of the matter in Adyala Jail after fulfilling all the requisite legal formalities and proceedings for framing of charge against the Petitioner was ordered to be conducted on 13-12-2023 at Adyala Jail, Rawalpindi. 6. Thereafter, the ECP issued the Impugned Order No. II ordering that as similar matters are fixed for proceedings in Adyala Jail on the next date i.e. 13-12-2023 therefore such matter shall also be fixed along with other matters for submission of reply to show cause notice and for further proceedings at Adyala Jail, Rawalpindi while also allowing the Petitioner s lawyers along with clerks, mother and wife to attend the proceedings on the next date. 7. Subsequently, the FOP issued the Impugned Notifications pursuant to the Impugned Orders. Hence these Petitions. 8. The learned counsel for the ECP, at the very outset, challenged the maintainability of the instant Petition. In this regard, she submitted that the original Notice dated 19.8.2022 issued by the ECP to the Petitioner was challenged by the Petitioner before the Lahore High Court, Rawalpindi Bench in W.P. No. 2285 of 2022 while also seeking inter alia a declaration that Section 10 of the Elections Act, 2017 ( Elections Act ) is ultra vires. Thereafter, Show Cause Notice dated 13.9.2022 ( SCN I ) was issued which too was challenged by the Petitioner before the Lahore High Court, Rawalpindi Bench in W.P. No. 2605 of 2023 while also seeking declaration that Section 4 of the Elections Act is ultra vires. Both the said petitions were not pressed on 13.3.2023. However, subsequently the Petitioner filed W.P. No. 47883 of 2023 challenging not only the Notice dated 19.8.2022 and SCN I yet again but also Order dated 5.6.2023 passed by the ECP in the proceedings emanating from the Notice dated 19.8.2022 as well as the vires of Sections 4(2) and 10 of the Elections Act and Rule 4 of the Election Rules, 2017 ( Election Rules ). Writ Petition No. 47883 of 2023 was dismissed for non-prosecution on 22.1.2024 but a restoration application was filed by the Petitioner on 23.1.2024 which is pending. The learned counsel for the ECP therefore argued that propriety demands that this Court restrain itself from exercising jurisdiction in the instant matters in view of the pendency of the restoration application in the writ petition filed before the Lahore High Court, Rawalpindi Bench. In this regard, she relied upon Lieutenant General (R) Salahuddin Tirmizi v. Election Commission of Pakistan, PLD 2008 SC 735, whereby it was held that propriety demanded that the subsequent order passed by the ECP in post remand proceedings should have also been challenged before the Islamabad High Court since an earlier order passed by the ECP was challenged before the Islamabad High Court. The learned counsel also cited Muslim Commercial Bank Limited and another v. Momin Khan and others, 2002 PLC (C.S.) 898. She confirmed that the Orders and Notifications impugned in the instant proceedings are not being challenged before any other High Court. However, she relied upon Alam Dad Laleka v. Election Commission of Pakistan, PLD 2020 Islamabad 20 whereby this Court while quoting Salahuddin Tirmizi (Supra) held that where a litigant challenged a show cause notice before a High Court of one province he cannot be permitted to challenge another order passed in the same proceedings before another High Court. She argued that since the Impugned Order I and Impugned Notification I have been passed in contempt proceedings arising out of Notice dated 19-08-2022 and SCN I, which have been challenged before the Lahore High Court, Rawalpindi Bench, propriety demands that this Court does not exercise jurisdiction in the matter. The learned counsel for ECP further contended that this Court will be required to interpret Section 10 of the Elections Act in order to consider the arguments of the Petitioner as to whether or not ECP is a Court and whether it is liable to fulfill the requirements of Section 352, Cr.P.C., whereas the vires of Section 10 of the Elections Act is under challenge by the Petitioner in W.P. 2285 of 2022 before the Lahore High Court, Rawalpindi Bench. 9. The learned Assistant Attorney General relied upon Election Commission of Pakistan and others v. Pakistan Tehreek-e-Insaf and others, PLD 2024 SC 267 and referred to Section 10, C.P.C. to submit that a party cannot agitate the same matter which is directly or substantially at issue in a previously instituted case. 10. In response to the challenge to the maintainability of the instant petitions, the learned counsel for the Petitioner in W.P No. 4560 of 2023 emphasized that the Supreme Court of Pakistan in Salahuddin Tirmizi (Supra) concluded that both the orders passed by the Islamabad High Court as well as the Peshawar High Court were passed with lawful authority. Even otherwise, the learned counsel for the Petitioner submitted that the circumstances of the case of Salahuddin Tirmizi (Supra) are different from the instant case as in the said case an order passed by the ECP rejecting an application for a re-poll was challenged before this Court in writ petition wherein this Court remanded the matter to the ECP whereas what was challenged before the Peshawar High Court was an order passed by the ECP in post remand proceedings. The learned counsel for the Petitioner denied that the matter agitated before this Court is the same or substantially similar to the matter agitated in W.P. No. 47883 of 2023 before the Lahore High Court, Rawalpindi Bench and that even otherwise the said petition cannot be considered as pending since it has been dismissed vide the Order dated 22.1.2024 and has not yet been restored. In this regard, he referred to Order IX, Rules 8 and 9, C.P.C. to argue that a matter dismissed for non-prosecution cannot be revived till the order of dismissal has been set aside which has not yet happened in W.P. No. 47883 of 2023 as the restoration application is still pending. Moreover, he argued that the Lahore High Court, Rawalpindi Bench has not exercised jurisdiction in the matter as the matter has not been heard on merits. Whereas, the Petitioner has also challenged Impugned Order and Notification II arising from Show Cause Notice dated 13-6-2023 ( SCN II ), which was challenged by the Petitioner before this court vide W.P. 2004 of 2023 that was dismissed and against which ICA No. 354 of 2023 has been filed which is pending. He therefore contended that the instant writ petitions challenging the Impugned Order and Impugned Notification II are maintainable as this Court has already exercised jurisdiction in SCN II, and in view thereof the Impugned Order I as well as the Impugned Notification I would naturally also be challenged before this Court. 11. On merits the learned counsel for the Petitioner referred to Section 9(4) which provides that while exercising the powers conferred on it by subsection (1), the ECP shall be deemed to be an Election Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter IX, regulate its own procedure. He pointed out that the ECP is not a Tribunal under Section 10 and that it is not a Court as without a Constitutional amendment in Article 175A, another High Court cannot be established vide statutory provisions. He highlighted that pursuant to Section 199 of the Elections Act the Cr.P.C. applies to, inter alia, the trial of an offence where sufficient provision does not exist in the Elections Act. He therefore argued that the ECP was bound to follow the procedure prescribed in Section 342, Cr.P.C. and Section 3 of the Lahore High Court Rules for a jail trial, which the ECP failed to do. The learned counsel for the Petitioner drew the Court s attention to the Impugned Order I wherein it has been noted that since the contempt proceedings against Imran Khan are taking place in Adyala Jail, Rawalpindi therefore proceedings against the Petitioner shall also be conducted in Adyala Jail. He submitted that the Petitioner and Mr. Imran Khan have been issued different show cause notices. He referred to copies of SCNs issued to the Petitioner as well as the notice/show cause notices dated 19.8.2022 and 13.9.2022 issued to Mr. Imran Khan to highlight that the contempt allegedly committed by the Petitioner was on different dates and different venues. He also contended that the instant writ petitions have not become infructuous despite the Petitioner having been released on bail as charge against the Petitioner was framed inside Adyala Jail on 3-1-2024 which will stand vitiated only upon a declaration setting aside the Impugned Orders and Impugned Notifications as prayed for vide the instant petitions. 12. The learned counsel for the Petitioner in W.P No.1976 of 2024 argued that the Impugned Notifications have been issued in violation and derogation of the applicable laws. 13. The learned counsel for the ECP submitted that charge has been framed against the Petitioner in Adyala Jail pursuant to the Impugned Order and Notification I only whereas neither charge has been framed nor any further proceedings have been held pursuant to the Impugned Order and Notification II. As such she argued that the instant writ petitions to the extent of the Impugned Order and Notification II have become infructuous by virtue of the fact that the Petitioner is no longer in Adyala Jail. She submitted that to the extent that the writ petitions challenge the Impugned Order and Notification I the same are not maintainable due to the pendency of the restoration application in W.P No.47883 of 2023 before the Lahore High Court, Rawalpindi Bench. She pointed out that that the original prayer made vide W.P No.4560 of 2023 was only to proceed with the contempt case in open Court and not for setting aside the Impugned Orders. She argued that the amended prayer whereby setting aside of the Impugned Orders has also been prayed for even if allowed would be allowed from the date of amendment and not from the date of institution of W.P No.4560 of 2023 as no prayer for declaring them void ab initio has been made. Thus even if W.P No.4560 of 2023 is allowed, according to the ECP it will not have the effect of setting aside any order that may have been passed by ECP in Jail pursuant to the Impugned Order and Notification I prior to the date on which the prayer was amended as this Court does not have suo motu powers. She therefore argued that setting aside the Impugned Orders will not have the effect of vitiating the proceedings that may have taken place in Adyala Jail so far. She also referred to Section 10, C.P.C. and submitted that while the same relief may not have been prayed for vide W.P No.4560 of 2023 filed in this Court as in W.P No.47883 of 2023 filed before the Lahore High Court, Rawalpindi Bench, however, the arguments submitted by the learned counsel for the Petitioner before this Court in these proceedings are substantially the same as arguments to be submitted before the Lahore High Court, Rawalpindi Bench in W.P No.47883 of 2023 if the same is restored. She argued that the contempt proceedings are sui generis and not criminal proceedings and therefore cannot be equated with trial of an offence as used in Section 199 of the Elections Act which pertains to other offences under the said Act. As such she submitted that Criminal Procedure Code, 1898 ( Cr.P.C. ) has no application upon contempt proceedings conducted by ECP, who is empowered to regulate its own proceedings under Section 3 of the Elections Act. She further submitted that Section 352, Cr.P.C applies to a criminal Court, whereas ECP while conducting contempt proceedings acts as a High Court. Similarly Rule 3 of the Lahore High Court Rules and Orders does not apply to High Court or ECP. She also submitted that the proceedings before ECP are in any event not open to public and as such the Petitioner cannot claim that he has the right of public trial in respect of contempt proceedings. She submitted that the reason for proceeding with the contempt proceedings against the Petitioner in Adyala Jail was because similar proceedings against Mr. Imran Khan were taking place in Adyala and that contemptuous remarks by both the accused persons were made at a time when they were both members of the same political party. 14. With respect to W.P No.1976 of 2024, the learned counsel for ECP submitted that although the Petitioner has specifically prayed for a declaration therein that all proceedings pursuant to the Impugned Notifications are illegal and of no legal effect, the petition not only suffers from laches but is also hit by Order II, Rule 2, C.P.C. as the relief claimed for arises from the same cause of action as alleged in W.P No.4560 of 2023, in which no such prayer was made and therefore such claim would be deemed relinquished. 15. While exercising their right of rebuttal, the learned counsel for the Petitioner in both the instant petitions submitted that Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 ( Constitution ) is to be read into every criminal charge. They relied upon Naveed Akhtar v. The State, PLD 2021 SC 600 in this regard. They relied upon The State v. Khalid Masood, Regional Director Pakistan Narcotics Board, Lahore and 3 others, PLD 1996 SC 42; Talal Ahmed Chaudhary v. The State, 2019 SCMR 542; and Contempt Proceedings against Imran Khan, Chairman Pakistan Tehreek-I-Insaf, PLD 2014 SC 367 to assert that contempt proceedings are quasi criminal in nature. They argued that ECP does not enjoy unbridled authority. They drew the attention of the Court to the Impugned Orders and submitted that they do not refer to Sections 3 and 4 of the Elections Act and reliance thereupon is an afterthought. They also pointed out that while the Impugned Orders refer to legal formalities it is not specified as to which legal formalities. 16. I have heard the arguments of the learned counsel for the parties and have also perused the record. Maintainability of Writ Petitions: 17. As held by the Supreme Court in the case of Salahuddin Tirmizi (Supra) it is proper to decide the question of jurisdiction of this Court in the first instance being a fundamental question. It is undisputed that in light of Salahuddin Tirmizi (Supra) this Court does possess jurisdiction in the instant matter given that the Impugned Orders under challenge in W.P. No. 4560 of 2023 were passed by ECP in connection with the affairs of the Federation within the territorial jurisdiction of this Court. 18. The question posed by the arguments presented by both the sides is whether keeping in view the principles of propriety settled in the case of Salahuddin Tirmizi (Supra) this Court ought to restrain itself from exercising jurisdiction in view of the pendency of a restoration application filed by the Petitioner in W.P. No. 47883 of 2023 (which was dismissed by the Lahore High Court, Rawalpindi Bench for non-prosecution) wherein the Petitioner has challenged the SCN I from which the Impugned Order I arises. In this regard I rely upon Ghulam Qadir v. Sharimati Sadori Baie and 2 others, 2011 YLR 2560 and Abbas Ali and another v. Asif Abbas and 3 others, 2016 CLD 555 whereby it has been held that a restoration application by itself would not bring life into dead proceedings unless life is put into it by the court in the form of restoration. 19. Be that as it may, W.P. No. 47883 of 2023 was dismissed by the Lahore High Court, Rawalpindi…

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