' NASIR-UL-MULK, J.---To appreciate the questions raised in these Constitution Petitions, it is necessary to refer to certain back ground facts, starting from 3rd November, 2007. In the afternoon of that day, General Pervez Musharraf as the Chief of Army Staff, issued Provisional Constitution Order No,1 of 2007 and in his capacity as President of Pakistan issued the Oath of Office (Judges)
Order of 2007.
2. The Oath of Office (Judges) Order of 2007 provided that those Judges of the Supreme Court, High Courts and Federal Shariat Court, who were either not invited or declined to take fresh oath under the Order would cease to be Judges of their respective Courts. Before the said instruments were issued, a 7 member Bench of this Court, headed by the Chief Justice of Pakistan, passed a restraining order in the case of Mr. Justice (Retd.) Wajih-ud-Din Ahmed that no Judge of the Supreme Court or the High Court's including Chief Justice(s) shall make a fresh oath under Provisional Constitution Order or any extra constitutional instrument. Some of the Judges of the Supreme Court and the High Court's made oath under the Oath of Office (Judges) Order of 2007 whereas the majority declined the offer. Consequently, the Federal Government issued notifications to the effect that the Judges who had not made the new oath had ceased to be Judges of their respective Courts.
' Eventually after more than a year the Judges so removed were restored to their offices.
3. A number of petitions were filed before this Court with various prayers with a common attack on the Provisional Constitution Order No,1 of 2007 as well as other instruments issued in the same process. These petitions were disposed off together and the judgment delivered in Sindh High Court Bar Associating v. Federation of Pakistan PLD 2009 SC 879 on 31-7-2009. The said Provisional Constitution Order along with other connected instruments were struck down as unconstitutional illegal and consequently of no legal effect. As a result of the said declaration, the Court further declared, inter alia, that Mr. Justice Abdul Hameed Dogar, who was appointed during the period that the Chief Justice of Pakistan, Mr. Iftikhar Muhammad Chaudhary, was physically restrained from performing his duties, was never validly appointed to that office. Thus the Judges appointed with his consultation were held not to have been validly appointed. That the Judges of the Supreme Court and the High Courts who were Judges of their respective Courts prior to 3rd November, 2007 and had made oath in violation of the order of the 7 Members Bench of the said date were to be proceeded against under Article 209 of the Constitution. Further that on account of such violation they were also liable to be proceeded against for contempt of Court. A number of Judges affected by the said judgment filed review petitions and the same were dismissed on 13th October, 2009.
During hearing of the said review petitions, this Court on 5th October, 2009 passed the following Order:-- "It is to be noted that in the detailed reasons of the judgment dated 31-7-2009,it has been held that the Judges, who violated the order dated 3-11-2007 passed by a seven-member Bench in Constitution petition No,73 of 2007, are also liable for committing contempt of Court in addition to being liable to be proceeded against under Article 209 of the Constitution as despite notice, (details of which are mentioned in the detailed reasons), they made new oath, though they ere restrained from doing so by the aforesaid order. Accordingly, we consider it appropriate to issue notices of competent of Court to all those Judges, who were judges of a High Courts prior to 3rd November, 2007 and they made oath in violation of the aforesaid order, as also the Judges who were appointed between 3rd November, 2007 and 15th December, 2007 because it has been held in the detailed reasons that the order dated 3rd November, 2007 remained operative and they were constitutionally, legally and morally bound to follow the order passed by the apex Court."
4. By order of 9th October, 2009, it was directed that similar notices be issued to the Judges of the Supreme Court who had taken oath in violation of the order of 3rd November, 2007. Accordingly, notices for contempt of Court were issued to the Judges falling in the category mentioned in the said orders. Subsequently notices were discharged against those Judges who had tendered their unconditional apology whereas it was ordered that the Judges of the Supreme Court and the High Courts, who were contesting the notices or had not filed replies thereto, shall be proceeded against separately. It was pursuant to this direction that the proceedings for contempt of Court were initiated against the present petitioners and the other Judges, respondents in Cr.O.P. Nos.93 to 98, 100 and 104 of 2009.
5. The said contempt proceedings were placed before a 5 members Bench. On 3rd November, 2009 it passed the following order:-- "Dr. Abdul Basit, Senior Advocate Supreme Court appearing for Mr. Justice Syed Shabbar Raza Rizvi in Criminal Original Petition No,98 of 2009 and for Justice Hasnat Ahmed Khan in Criminal original petition No,97 of 2009, informs us that the said respondents had filed appeals under section 10 of the Contempt of Court Act (LXIV) of 1976 and drawing our attention to subsection (2A) of the said section 10, adds that in case such an appeal was filed questioning a show cause notice then the operation of such a show cause notice got automatically suspended in view of the second proviso to the said subsection (2A).
2. Reservations were expressed about the said Act of 1976 being an existing law as the same had been repealed by the Contempt of Court Ordinance No,V of 2003 which Ordinance was then given permanence through Article 270-AA of the Constitution. Reference was also made to a judgment of this Court upholding the said view i,e, PLD 2007 SC 688. When the other learned counsel appearing for the respondents were asked about their views in the matter, some of them supported Dr. Abdul Basit, Senior Advocate Supreme Court, but Malik Muhammad Qayyum, Senior Advocate Supreme Court submitted that the said Act of 1976 was no longer in force. It may be mentioned that it was the case of the respondents themselves through ground (14) of their respective replies that the Act of 1976 stood repealed.
3. Be that as it may, since we are informed that some appeals had been filed in the matter and since the said appeals are before us, therefore, we consider it improper to make any comment about their merits and also consider it appropriate to await the outcome of the said appeals."
6. The facts narrated from here onwards are directly connected with the issues involved in these Constitution petitions. As mentioned in the order of 3rd November, 2009, reproduced above, the petitioners filed appeals under section 10(2A) of the Contempt of Court Act, 1976. The office of this Court returned the same as not entertain able on the ground that the Contempt of Court Act; 1976 stood repealed as held by this Court in suo motu Case No,1 of 2007 (PLD 2007 SC 688). Two of the present petitioners filed appeals Cr. Miscellaneous Appeal Nos. 31 and 32 of 2009) under Order V, Rule 3 of the Supreme Court Rules, 1980 against the administrative order and the same were dismissed by a Single Judge in Chambers on 20-11-2007 holding that the Contempt of Court Act, 1976 had been repealed by Ordinance V of 2003 and thus sustaining the office objection. The said two appellants thereafter filed C.M.As. Nos.637 and 638 of 2009 in Cr. Miscellaneous Appeals Nos.31 and 32 of 2009 in Cr. Original Nos. 97 and 98 of 2009. These applications were head by a 3 Member Bench and dismissed as withdrawn on 24-2-2010 by a short order that reads:--- "After arguing the case at some length, learned counsel made the following statement:- ' Having been confronted by the Bench with technical objections to the applications for re- consideration filed by the petitioners, the petitioners are prepared to withdraw these petitions with the leave of the Court to avail appropriate remedy by way of Constitution petition.'
2. In view of the statement of the leaned counsel for the petitioners for withdrawal of the petitions are dismissed as withdrawn.
3. It is up to the petitioners, if they choose so, may avail any remedy, available to them under the law."
' After withdrawal of the above applications, four Constitution petitions were filed which were again returned by the office on 6-4-2010 on the ground that the petitioners had already availed all the remedies available to them under the law. They challenged this administrative order by filing C.M.As. Nos. 70, 72; 78 and 79 of 2010 under Order V, Rule 3 of the Supreme Court Rules, 1980, for hearing before the Single Judge in Chambers. These appeals were placed before us. Exercising our inherent powers under the Supreme Court Rules, we disposed of the appeals in the following terms:-- "In view of the earlier Intra Court Appeal filed by the petitioners, dismissed on 20-11-2009 and the subsequent miscellaneous Applications that were withdrawn on 24-3-2010, to prevent multiplicity of proceedings and for the ends of justice, we would exercise our powers under Order XXXIII, Rule 5 of the Supreme Court Rules and direct that the constitution petitions filed by the petitioners be registered and placed before the Court for regular hearing on 3-5-2010. The appeals are disposed of in the above terms."
' Accordingly, the Constitution petitions were registered and now placed before us for regular hearing.
7. Dr. A. Basit, Senior Advocate Supreme Court, opened the case for the petitioners. With reference to order of 3rd November, 2009, he contended that since the petitioners were permitted to file Intra Court Appeals under section 10(2A) of the Contempt of Court Act, 1976 and the office was directed to entertain the same, the appeals be heard by a Bench constituted under the said provision and not by this Bench hearing the main contempt proceedings as these proceedings have been suspended pending disposal of the appeals. In the alternative, it was argued that even if the Contempt of Court Act of 1976 stands repealed by Ordinance V of 2003, since the notices of contempt of Court were issued under the said Act under orders of a 14 Members Bench, unless rectified by a Bench of same strength, the proceedings under Ordinance V of 2003cannot be undertaken.
8. Syed Ali Zaffar, Advocate Supreme Court appearing in Constitution Petition No,9 of 2010 submitted that Ordinance V of 2003 was temporary legislation under Article 89 of the Constitution, the same lapsed after four months of its promulgation. He argued that Article 270-AA as substituted by Constitution (17th Amendment) Act, 2003 does not provide permanence to the Ordinance as the said Article is still subject to the provision of Article 89 of the Constitution. The learned counsel further contended that Ordinance V of 2003 was subsequently replaced by Ordinance I of 2004 which was not protected by Article 270-AA as the protection was accorded to Ordinances promulgated up to 31st December, 2003.
9. The foremost question for determination is whether the Contempt of Court Act, 1976 or the Ordinance V of 2003 is the law in force regarding contempt proceedings. The Act was replaced and repealed by the Contempt of Court Ordinance IV of 2003 issued on 10th July, 2003. Upon expiry of the said Ordinance, Ordinance V of 2003 was promulgated on 15th December, 2003 re-enacting the provision of expired Ordinance. Section 20 of this Ordinance also repealed the Contempt of Court Act, 1976. Another Ordinance No,I of 2004 was promulgated on 15th July, 2004, the contents whereof were the same as the other two Ordinances and this also repealed the Contempt of Court Act, 1976. The Constitution (17th Amendment) Act, 2003 substituted Articles 270-AA, for saving the instruments issued during the period when the country was under the military rule. Clause 3 of the said Article thus provided that "All Proclamations, President's Orders, Ordinances in force immediately before the date (31-12-2003) on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority". A similar provision has now been incorporated in Clause 2 of Article 270-AA by Constitution (18th Amendment) Act, 2010 that provides " all laws including President's Orders, Acts, Ordinances made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty-first day of December, two thousand and three (both days inclusive) and still in force shall, continue to be in force until altered, repealed or amended by the competent authority".
10. It would be seen that the Contempt of Court Act, 1976 has been repealed effectively by all three successive Ordinances. Furthermore, Article 270-AA substituted by Constitution (17th Amendment)
Act, 2003 has accorded permanence to the Ordinances issued prior to 31st December, 2003.
Ordinance V of 2003 issued on 15th December, 2003 comes under its protection. The Constitution (18th Amendment) Act, 2010 again substituted Article 270-AA and while declaring unlawful a number of instruments issued during the military rule, nevertheless, by Clause 2 accorded permanence to, inter alia, Ordinances promulgated between 12th October, 1999 and 31st December, 2003. We are, therefore, left in no doubt that the Ordinance V of 2003, being permanent legislation and having repealed the Contempt of Court Act, 1976, is the law regulating the proceedings of contempt of Court.
11. The arguments of Mr. Syed Ali Zafar, Advocate Supreme Court that Ordinance V of 2003 was replaced by Ordinance I of 2004 and since issued after 31st December, 2003, it lapsed upon expiry of its life, has no force. In the case of Suo Motu Order No,1 of 2007 (PLD 2007 SC 688), charges were initially framed under the Contempt of Court Ordinance I of 2004 but on pointing out by the learned Attorney General that the said Ordinance was issued inadvertently without realization that the 17th Amendment had through Article 270-AA given permanence to Ordinance V of 2003, charge was accordingly amended. Even though the learned Attorney General's view point was not contested and readily accepted, that appears to be the correct law. Once the Ordinance V of 2003 was given the status of permanent legislation, Ordinance I of 2004 was superfluous and it seems that it was issued on account of ignorance of the constitution position. In any case, Ordinance I of 2004 did not repeal Ordinance V of 2003 and even if the former is considered to have been validly promulgated, it lapsed upon expiry of four months. Looking at it from any angle, Ordinance 1 of 2004 did not, in any way, replace Ordinance V of 2003.
12. We may add that the Supreme Court and the High Court's derive power to punish contemnors from Article 204 of the Constitution, and are not dependent upon sub-constitutional legislation.
Clause 3 of the Article only provides that the exercise of power conferred upon the Court under the Article may be regulated by law and, subject to law, by rules made by the Court. All the foregoing statutes from the Contempt of Court Act, 1976, onwards have been enacted with reference to Clause 3 of Article 204.
13. We now take up the argument that since notices to the petitioners and the respondents in the connected matters were issued under Contempt of Court Act, 1976 in accordance with the order of a 14 Members Bench dated 13-10-2009 a 5 Member Bench could not alter the provision of law.
Indeed, the notices were issued "under Article 204 of the Constitution read with sections 3 and 4 of the Contempt of Court Act, 1976 or any other enabling provisions of the relevant law". Reference to "any other enabling provision of the relevant law", in the notices was in the alternative to the provisions of the Contempt of Court Act, 1976. Perhaps this phrase was added as a precaution as there was still some controversy prevailing at the time as to whether or not the Contempt of Court Act, 1976 stood effectively repealed and replaced by Ordinance V of 2003. The argument that the said phrase be read as ejusdem generis with the Contempt of Court Act, 1976, is untenable in that the 'enabling provisions' mentioned in the phrase is followed by the words 'of the relevant law'. If it was intended to refer to the enabling provisions of the Contempt of Court Act, 1976, it would not have been qualified by the words 'the relevant law', the relevant law means law other than the 1976 Act, if so found relevant. We have already held that the Ordinance V of 2003 is the relevant law. It is, therefore, not necessary to refer the case back to a larger Bench for rectifying the order of issuing notices.
14. In view of our finding that the 1976 Act stands repealed, the argument that these constitution petitions be heard as Intra Court Appeals under section 10(2-A) of the Act need not be dilated upon. Above are the reasons for the short order dated 4-5-2010, the operative paragraphs 6 and 7 are reproduced:- "6. We find neither of the two contentions tenable, and hold that the Contempt of Court Ordinance (No,V of 2003) has been given permanence and protection by Article 270-AA as substituted by the Constitution (17th Amendment) Act, 2003 as well as by the Constitution (18th Amendment) Act, 2010 and section 20 of the Ordinance has repealed the Contempt of Court Act, 1976. Thus, no intra court appeal under section 10(2-A) of the Contempt of Court Act, 1976 is maintainable. Since we have held that the Ordinance V of 2003 is the law in force regulating proceedings of contempt of Court, the said Ordinance is the "relevant law" mentioned in the notices issued to the petitioners.
Accordingly, the notices to the petitioners as well as to the others in the connected criminal original petitions, shall be read as having been issued under Article 204 of the Constitution of the Islamic Republic of Pakistan read with sections 3 and 5 of the Contempt of Court Ordinance, 2003 (Ordinance V of 2003).
15. As we have now clarified and specified the law under which the proceedings in Criminal Original Petition Nos.93 to 98, 1000 and 104 of 2009) will be regulated, the respondents therein, may, if so advised, file additional statements by 7-5-2010 and the cases shall come up for preliminary hearing on 10-5-2010 under subsection (3) of section 17 of Ordinance V of 2003. Notice to the Attorney General for Pakistan to assist the Court in these proceedings.