These two appeals, under Order V Rule 3 of the Supreme Court Rules, 1980, are directed against the identical office objection dated 3.11.2009, endorsed by the Institution Officer, Supreme Court of Pakistan, upon presentation of two Intra Court Appeals by Mr. Arshad Ali Chaudhry, learned AOR, which reads as under:-- "The above titled Intra Court Appeal in Criminal Original Petition No, 97 of 2009 filed by you under Section 10 (2-A) of the Contempt of Court Act, 1976 is not entertain able because Contempt of Court Act, 1976 has been repealed by the Contempt of Court Ordinance, 2003, and Contempt of Court Ordinance, 2003 is a valid law which has been accorded permanence by incorporation of Article 270AA in the Constitution by the Constitution (17th Amendment) Act, 2003. It has been held so by this Court vide the judgment reported as PLD 2007 SC 688. Hence this Intra Court Appeal in Criminal Original Petition No, 97/2009 is returned herewith in original along with its paper books."
2. At the outset, Pr. A. Basit, learned Sr. ASC, who is representing both the appellants before me, made a detailed reference to the events which took place from the 3rd of November, 2007, till the passing of short order dated 31st July, 2009 by the Honourable fourteen Members Bench of this Court, followed by detailed reasons thereof.
3. Reverting to the office objection as to the entertain ability of the two Intra Court Appeals filed by the present appellants under Section 10(2-A) of the Contempt of Court Act, 1976, against the notice dated 13.10.2009, the first submission of the learned counsel is that the objection so raised by the Institution Officer about the entertain ability of the Intra Court Appeals was not within his competence, as under the Supreme Court Rules, such powers are only available with the Registrar, and not at the level of Institution Officer. He next contended that even in the impugned notice dated 13.10.2009, specific reference of Sections 3 & 4 of the Contempt of Court Act 1976, is made, therefore, filing of Intra Court appeals under Section 10(2-A) of the Same Act of 1976, read with Contempt of Court (Amendment) Act, 1997, is fully justified, and the office is stopped from raising any objection to this effect. He also submitted that the Contempt of Court Act, 1976, is still in force, therefore, the appeals preferred by the appellants under the provisions of said Act of 1976 are very much competent. He further submitted that Article 270AA of the Constitution, which became part of the Constitution of our country through Seventeenth Amendment on 31.12.2003, has only protected those actions and laws etc., which were taken/promulgated after proclamation of emergency on the 14th day of October, 1999 till the date of such addition in the Constitution, so as to protect and provide legal cover to all the actions taken there under, but no permanency has been attached to any such Ordinance to supersede or replace any Act, like the Contempt of Court Act 1976, which is to prevail after lapse of period of 120 days meant for any Federal Ordinance. Last limb of the arguments of Dr. A. Basit is that all objections relating to legal implications are objections about the maintainability of the appeals, therefore, the same are to be placed before the Court for adjudication and no one can be non-suited on such ground at the level of Registrar, as in the instant case.
4. Without commenting upon other aspects of the case, which are not much relevant for resolving the controversy involved in these appeals, I propose to confine my discussion only as to the objection raised by the Institution Officer dated 3.11.2009, about the entertain ability of the two appeals, preferred by the appellants under Section 10(2-A) of the Contempt of Court Act 1976, which has been challenged through these appeals under Order V Rule 3, Supreme Court Rules, 1980. There can be no two views about the fact that by virtue of Section 20 of the Contempt of Court Ordinance 2003 (No, V of 2003), which came into force on 15th Day of December, 2003, the Contempt of Court Act 1976 (LXIV of 1976) was validly repealed. Now it is to be seen here, whether for the reason that Ordinance No, V of 2003 was in force and alive on the day when Article 270AA became part of the Constitution of Pakistan, 1973, by way of Seventeenth Constitutional Amendment, it received permanence or not, for this, a reference to Sub-Article (3) of Article 270AA would be relevant here, which reads as under:-- "(3) All Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, including amendments in the constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority. Explanation.--In this clause, "competent authority" means,-- (a)in respect of Presidents' Orders, Ordinances; Chief Executive's Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and (b)in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law."
A plain reading of this Sub-Article shows that not only by Article 270AA of the Constitution, all legislationmade, actions taken and acts done etc., as detailed in Sub-Articles (1) and (2) were given legal cover and protection from being called into question in any Court or forum on any Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, including amendment in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which the said Article came into force, were accorded permanence i,e, to continue in force until altered, repealed or amended by the competent authority. In this context, it is significant to notice that in Sub-Article (3) (ibid) the guarded language used by the lawmakers is "altered, repealed or amended by the competent authority', meaning thereby that (a) nothing was to happen thereafter automatically (b) the position of expiry of Ordinances in force as on 31.12.2003, in the ordinary course or their lapse were eliminated. Thus, applying the well recognized rule of interpretation of statute that no word used by lawmakers is either "redundant or can be subtracted, substituted, added or read in a piece of legislation or a document, no valid presumption can be drawn. that on expiry of 120 days, the Ordinance, V of 2003, automatically lapsed/ expired as it should have been in the ordinary course. Needless to observe that where some legislation is made and its language is couched in a particular/calculated manner to meet some extra ordinary situation, as in the case of Article 270AA, then it is to be read and interpreted in a more careful and pragmatic manner to ensure that its objective and intent is achieved. Incidentally Ordinance V of 2003, is one of such Ordinances, which, due to the blanket cover provided by Sub-Article (3), became protected, validated and in force piece of law on insertion of Article 270AA in the Constitution, through Seventeenth Amendment, unless undone in the manner prescribed therein. This view of the matter also gets support from the judgment of a three Members Bench of this Court in Suo Moto Case No, 1 of 2007 dated 1.11.2007, reported as PLD 2007 S.C. 688. Though in this judgment, no detailed deliberations have been made on this aspect of the case, but it has been categorically noted that Contempt of Court Ordinance 2003, was still a valid law, as it was accorded permanence by incorporation of Article 270AA in the Constitution by Constitutional (Seventeenth Amendment) Act 2003.
5. Considering the other technical objections raised by Dr. A. Basit, about the incompetency of the Institution Officer for raising the impugned office objection; nature of office objection whether relating to maintainability of appeals or to their entertain ability, and effect of reference of Sections 3 & 4 of the Contempt of Court Act 1976, in the notice of this Court dated 13.10.2009, firstly, it may be mentioned here that reference to Sections 3 & 4 of the Contempt of Court Act 1976 in the notice dated 13.10.2009, seems to be a simple mistake made by the office, which, in any case, will not confer a right of Intra Court Appeal to the appellants, unless otherwise expressly provided by any law in force. Suffice it to observe, that two wrongs or any number of wrongs, will not make one right.
This view of the matter also finds full support from the settled legal position that mere mistake in the citation of a relevant provision of law will not nullify or vitiate an action or proceeding. Similarly, objection as to the authority of the Institution Officer has no force, for the reason that he is duly notified Officer under the administrative arrangements of this Court, and for this purpose, Registrar, in terms of Order III, Rules 4 & 5 of the Supreme Court Rules, 1980, is fully empowered to delegate and assign such work/task among the Officers of the Court. Admittedly, the Institution Officer is an Officer of this Court in BPS.18, thus, the powers so exercised by him, for this purpose, cannot be objected to on such account. Looking at this plea from another angle, on strict interpretation of Order V rule 3 without reference to Rules 4 and 5 of Order III of the Supreme Court Rules, 1980, as argued by Dr. A. Basit, the very maintainability of these appeals becomes doubtful, as under this provision of law, an appeal to a Judge in Chambers only lies against the order of the Registrar and not otherwise.
The appellants, therefore, cannot be permitted to approbate and reprobate in the same breath.
6. The last submission of Dr. A. Basit as to the nature of office objection, being related to the maintainability and not to its entertainability, is also devoid of any force. If we look at the ordinary dictionary meaning of words "entertainability" and "maintainability" we find that word "entertainability" derives its source from the word "entertain", which according to the Concise Oxford Dictionary, Ninth Edition, means amuse, occupy agreeably, receive or treat as a guest; give attention or consideration to an idea, feeling, or proposal, and it originates its source from French word "entertainer" and ultimately from Latin "tenere" meaning thereby to "hold". On the other hand word "maintainability" derives its source from the word "maintain". As per definition of this word in the same dictionary, it means, cause to continue; keep up, preserve, support, assert opinion or statement as true, preserve or provide for preservation (building, machine, record etc.) in good repair, give aid to cause or party etc. and it originates its source from old French word "maintenir", ultimately from Latin word "manu tenere" meaning thereby to 'hold in the hand'. While in legal parlance (as noted from the Book "Legal Terms & Phrases" by M. Ilyas Khan, 2006 Edition) at page 327 word "entertain", referring to some judgments of the Supreme Court, denotes as under:-- "The word "entertain" in legal parlance means 'adjudicate upon' or 'proceed to consider on merits'.
Div. Superintendent, P.W.R. Multan vs. A Khaliq 1984 SCM R 1311.
Expression entertain by Mitra's Legal and Commercial Dictionary (page 270) and words Phrases by Surendra Malik (page 232) are identical i,e, entertainment means proceed to consider on merits or adjudicate upon, whereas the expression entertain has also been defined in Hidustan Commercial Bank v. Punnu Sahu AIR 1970 SC 1384 and Pakistan Steel People Worker's Union v. Registrar of Trade Unions, Karachi 1992 PLC 715 referred to by the learned counsel for petitioners according to which, it means not merely filing of an application or institution of proceedings but would mean adjudicated upon or proceed to consider on merits. All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600."
Similarly, at page 573 of the same book word "maintain" carries following meanings:-- "According to the Concise Oxford Dictionary (3rd edition), the word 'maintain' means carry on keep up (war contest, action of law, condition, position, attitude, relation, correspondence); cause (person or Co.) to continue in (condition, possession of thing, and Co.); support (life, one's state in life) by nourishment, expenditure & Co. furnish (oneself, children) with means of subsistence, keep (Road & Co.) in repairs; backup (cause, party; assert as time (opinion, statement, that) 1986 PLC 899."
7. The above discussion will show that indeed there is significant difference between the import of these two words for its practical implementation, and for this purpose with reference to the working in the office of Supreme Court, it can be said that the objections as to entertainability are those, which the office can raise, and can be decided at some appropriate level as per authorization under some administrative authority and subject to further remedy under the Supreme Court Rules, while the objections as to the maintainability are those which either raised by the office or the Court itself, are to be decided exclusively by the Court. In the present case, as I have already observed in the earlier part of this order that the Contempt of Court Act 1976, stood repealed by specific language of Section 20 of the Contempt of Court Ordinance, 2003, which remained protected by insertion of I Article 270AA in the Constitution of Pakistan, vide Seventeenth Amendment dated 31.12.2003. Therefore, no appeal filed under the provision of a repealed enactment can be entertained by the office as rightly done so in the instant matters by the Institution Officer.
8. This being the position, its necessary implication is that no question of maintainability, but a question of entertainability was involved in the two appeals, preferred by the appellants in the office of the Supreme Court, and in such situation, the objection raised by the Institution Officer dated 3.11.2009, as reproduced above, is an objection about the entertainability of the appeals, having been filed under a law which stood repealed with effect from 15th December, 2003, on coming into force of Ordinance V of 2003. Indeed, in a situation where Contempt of Court Act 1976, was not repealed, and any other objection as regards to its maintainability under the said Act was raised by the office that might have been a question relating to its maintainability, which is not the position in the instant case. This being the position, office objection is sustained and accordingly both these appeals are dismissed.