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P L D 2011 Supreme Court 680 Present: Iftikhar Muhammad P L D 2011 Supreme Court 680 Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Sarmad Jalal Osmany and Amir Hani Muslim, JJ JUSTICE HASNAT AHMED KHAN and others---Appellants Versus FEDERATION OF PAKISTAN/STATE---Respondents Intra Court Appeals Nos.3, 4, 6 to 8 and 11 of 2011, decided on 18th May, 2011. (On appeal against the order dated 2-2-2011 passed by a 4 Member Bench of the Supreme Court in Criminal Original Petition No.93 etc.). (a) Constitution of Pakistan--- ----Art. 204---Contempt of court---Disobedience of restraint order passed by seven-Member Bench of Supreme Court dated 3-11-2007 by members of Superior Judiciary by taking oath under Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Judges, whether they were in Supreme Court or in the High Court, who violated the order passed by seven- Member Bench of Supreme Court dated 3-11-2007 had all rendered themselves liable for consequences under the Constitution for their disobedience of said order---Article 204 of the Constitution dealt with the cases where a person had violated an order passed by Supreme Court, therefore, notices under Art.204 of the Constitution read with relevant provisions of contempt of court laws were issued to all those Judges who were appointed between 3-11-2007 and 15-12-2007 and made oath in violation of the said Supreme Court Judgment dated 3-11-2007. Malik Feroze Khan Noon v. The State PLD 1958 SC 333), Jamal Shah v. Election Commission PLD 1966 SC 1; State of Rajasthan v. Prakash Chand AIR 1998 SC 1344; Hayat Mahomed v. Shaikh Mannu AIR 1927 Cal. 290 and Ramadhin v. Emperor AIR 1927 Oudh 59 distinguished. (b) Constitution of Pakistan--- ----Arts. 243, 244 & 245---Armed Forces---Upholding the Constitution, as per the oath of the members of the Armed Forces, casts a duty upon them that they will not engage themselves in any political activities, whatsoever it may be--- Likewise, under Article 245(1) of the Constitution, the Armed Forces of Pakistan are bound to remain under the direction of Federal Government to defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so---Non adherence to the constitutional provisions prima facie tends to establish denying the oath to uphold the Constitution---Superior Courts have no jurisdiction to legitimize unconstitutional acts, actions, omissions and commissions of any functionary who had acted contrary to the constitutional provisions. Superior Courts had no jurisdiction to legitimize unconstitutional acts, actions, omissions and commissions of any functionary who had acted contrary to the constitutional provisions. Reason behind it has its germane in clause (1) of Article 243 of the Constitution, according to which the Federal Government shall have control and command on the Armed Forces. Clause (1A) of Article 243 provides that without to the generality of the provision of clause (1) the supreme command of the Armed Forces shall vest in the President, whereas, as per clause (3) of the said Article, the President, in consultation with the Prime Minister, enjoys authority for the appointment of (i) the Chairman of Joint Chiefs Staff Committee (ii) the Chief of Army Staff (iii) the Chief of Naval Staff and (iv) the Chief of Air Staff. Similarly, Article 244 of the Constitution speaks that every member of the Armed Forces shall make oath in the form set out in the Third Schedule under the Constitution, according to which a member of Armed Forces solemnly swears that he will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that he will not engage himself in any political activities whatsoever and that he will honestly and faithfully serve Pakistan in the Pakistan Army or Navy or Air Force, as required by and under the law. Upholding the Constitution, as per the oath of the members of the Armed Forces, casts a duty upon them that they will not engage themselves in any political activities, whatsoever it may be. Likewise, under Article 245(1) of the Constitution, the Armed Forces of Pakistan are bound to remain under the direction of Federal Government to defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so. Therefore, non adherence to the constitutional provisions prima facie tends to establish denying the oath to uphold the Constitution. Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref. (c) Provisional Constitution Order [1 of 2007]--- ----Oath of Office (Judges) Order, 2007---Disobedience of restraint order passed by seven-Member Bench of the Supreme Court dated 3-11-2007, by member of Superior Judiciary by taking oath under Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---No legitimacy, validation or indemnity having been granted to the actions of the then Chief of Army Staff during the period from 3-11-2007 to 15-12-2007, consequently the Judges who had taken the oath under Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007 continued to cease to hold their offices--- After having taken oath under the Provisional Constitution Order, 2007 which never got validation from the Parliament, they could not take advantage of omissions and commissions done by them in accordance with the principle enshrined in maxim: nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong)---From the date of passing of Eighteenth Constitutional Amendment Act (20-4-2009) said Judges were no more Judges of the High Courts under the Constitution and no immunity was available to them either. Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Mian Muhammad Saeed v. The Province of West Pakistan PLD 1964 SC 572; Union of India v. Major General Madan Lal Yadav AIR 1996 SC 1340 (1996) 4 SEC 27; Eureka Firbes Limited v. Allahabad Bank decided on 3 May, 2010; Mian Allah Bakhsh v. Fazal Karim PLD 1969 Quetta 13; Khairpur Textile Mills Ltd. v. Central Board of Revenue PLD 1976 Kar. 164; Muhammad Zargham Eshaq Khan v. University of Engineering and Technology, Lahore PLD 1988 Lah. 191; Zahira Habibullah H. Sheikh v. State of Gujarat (2004) 4 SCC 158; State of Behar v. Kalyanpur Cements Ltd. (2010) 3 SCC 274; Giles v. California, 554 U.S. 353 (2008); Puttick v. Attorney-General and another Reported at: (1980) Fam. 1; Loyal Protective Ins. Co. v. Shoemaker (Oklahoma Supreme Court Decisions) 1936 Ok 491, 63 P.2d 960, 178 Okla. 612; Findon v. Parker 11 M. & W. 680; Daly v. Thompson 10 M. & W. 309 and Richard Shorten v. David Hurst Constructions (2008) NSWSC 546 ref. (d) Provisional Constitution Order [1 of 2007)--- ----Oath of Office (Judges) Order, 2007---All the Judges, who opted to make oath under the dispensation of Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007 accepted that they ceased to hold office the moment the said instruments were promulgated i.e. 3-11-2007---Appointment of said Judges under Provisional Constitution Order, 2007 was not under the Constitution; they deviated not only from their appointments, but also from their oath---Mere making of fresh oath under the Constitution on its revival would make no difference---Marked distinction existed between the oath under the Constitution, and the oath under the Provisional Constitution Order, 2007 or Oath of Office (Judges) Order, 2007, in the former case, one takes oath to perform one's functions in accordance with the provisions of the Constitution whereas in the latter, one commits oneself to abide by the provisions of Provisional Constitution Order, 2007 and the Oath of Office (Judges) Order, 2007 and the orders passed from time to time by the person issuing the said instruments---Said Judges, in presence of oath made under the Constitution accepted oath under Provisional Constitution Order, 2007 and in this way violated their oath under the Constitution in letter and spirit. (e) Administration of justice--- ----Short order by court, in absence of the detailed reasons, has to be considered as an order of the court---Such order, when speaking, i.e. when it contained specific directions, had to be acted upon without waiting for detailed reasons---Short order duly recorded, signed and pronounced in court would be fully operative. Benazir Bhutto v. President PLD 1998 SC 388; State v. Asif Adil 1997 SCMR 209; Ghulam Hyder Lakho, High Court of Sindh Karachi v. Federation of Pakistan PLD 2000 SC 179; Dr. Agha Ijaz Ali Pathan v. State 2010 SCMR 322; Wafi Associates (Pvt.) Limited v. Farooq Hamid 2010 SCMR 1125; Wisram Das v. SGS Pakistan (Pvt.) Ltd. 2010 SCMR 1234 and Basar v. Zulfiqar Ali 2010 SCMR 1972 ref. (f) Contempt of Court Ordinance (V of 2003)--- ----Ss. 3 & 17---Contempt of court---Kinds---Formulation of a prima facie opinion by Court---Requirements. Under the scheme of the Contempt of Court Ordinance, 2003, there are three types of contempt of court namely, Civil Contempt, Criminal Contempt and Judicial Contempt. Prima facie, to establish any kind of these contempt proceedings, factual aspect of the case have to be gone into thoroughly. The law makers wisely had not emphasized for definite conclusion on factual aspects before issuing notice of contempt in terms of section 3 of the Contempt of Court Ordinance, 2003. It is always prima facie opinion of the Court, which is to be formulated to ascertain as to whether or not the contempt has been committed.
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