TARIQ MEHMOOD JAHANGIRI, J:- Through the instant Intra Court Appeal, the appellant has assailed order dated 20.02.2024, passed in Criminal Original No.197-W/2023, whereby learned Single Judge- in-Chambers issued non-bailable warrants of arrest against the appellant for his production before the Court on 21.02.2024, and directed the Ministry of Interior to place his name on Exit Control list (ECL).
02. Brief facts of the case are that the appellant is currently serving as Deputy Commissioner, Islamabad; on 08.08.2023, he issued an order under Section 3(1) of the West Maintenance of Public Order Ordinance, 1960 for detention of one, Shehryar Afridi. Said order was challenged in Writ Petition No.2491 of 2023, before this Hon'ble Court. On 15.08.2023, learned Single Judge passed an order and issued show cause notices to the appellant, SHO Police Station Margalla, Islamabad, D.P.O, City Zone, Islamabad and S.S.P (Operations) for allegedly violating the order dated 02.06.2023, passed by this Hon'ble Court in Writ Petition No.1639 of 2023, for criminal contempt of Court for alleged abuse of authority to obstruct dispensation of justice and causing diversion to the course of justice. Appellant appeared before the Court on 16.08.2023. Contempt proceedings were initiated against him in Criminal Original No.197-W of 2023; learned Single Judge vide order dated 07.09.2023, framed charge against him and other contemnors under Sections 2, 3 and 6 of Contempt of Court Ordinance, 2003, read with Article 204 of the Constitution of Islamic Republic of Pakistan, 1973. On 14.02.2024, the appellant verbally informed the learned Single Judge that he alongwith 31 other family members had to travel to Saudi Arabia to perform Umrah on 22.02.2024.
Thereafter, on 19.02.2024, the appellant filed an application for exemption from personal appearance from 20.02.2024 to 05.03.2024, which was dismissed vide impugned order dated 20.02.2024, hence the instant Intra Court Appeal.
03. Learned counsel for the appellant, inter alia contends that learned Single Judge-in-Chambers has passed the impugned order without taking into account the fact that the appellant is regularly appearing in person before the Court and did not seek exemption from appearance; the appellant verbally informed the learned Single Judge that he alongwith family members intends to travel to Saudi Arabia to perform Umrah on 22.02.2024, he also filed an application for exemption from personal appearance from 20.02.2024 to 05.03.2024 but no order was passed by learned Single Judge on the said application; exemption from appearance is liable to be granted to him during the said period; impugned order suffers from errors apparent and floating on the surface of the record; if the impugned order is not set aside, the appellant will suffer irreparable loss to his career and reputation, impugned order is erroneous and is not tenable under the law, hence the same is liable to be set aside.
4. Arguments heard, record perused.
5. Admittedly order passed by learned Single Judge-in-Chambers is an interlocutory order. Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 confers jurisdiction to the superior Courts to punish those persons who commit violation or deny compliance of said order of the Court. Article 204 of the Constitution is reproduced as under:- "204. Contempt of Court.-(1) In this Article, "Court" means the Supreme Court or High Court.
(2) A Court shall have power to punish any person who:-
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court."
In furtherance of the above provision of the Constitution, the Contempt of the Court Ordinance, 2003 was promulgated. Section 3 whereof describes the contempt of Court which provision is as under:- "3. Contempt of Court.---Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a willful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect of disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office, or to disturb the order or decorum of a Court, is said to commit "contempt of Court". The contempt is of three types, namely, the "civil contempt", "criminal contempt" and "judicial contempt".
Every superior court has the jurisdiction under Section 5 of the said Ordinance to convict and punish the contemnor in contempt of court.
06. Section 19 of the Contempt of Court Ordinance, 2003 provides a remedy of appeal which provision of law reads as under:- "19. Appeal.- (1) Notwithstanding anything contained in any other law or the rules for the time being in force, orders passed by a superior court in cases of contempt shall be appealable in the following manner:-
(i) in the case of an order passed by a single judge of a High Court an intra-court appeal shall lie to a bench of two or more judges;
(ii) in a case in which the original order has been passed by a division or larger bench of a High Court an appeal shall lie to the Supreme Court; and
(iii) in the case of an original order passed by a single judge or a bench of two judges of the Supreme Court an intra-court appeal shall lie to a bench of three judges and in case the original order was passed by a bench of three or more judges an intra-court appeal shall lie to a bench of five or more judges.
(2) The appellate court may suspend the impugned order pending disposal of the appeal.
(3) The limitation period for filing an appeal shall be thirty days."
07. The main controversy revolves around the word "orders passed in cases of contempt". As the plural word "orders" has been used in the above provision of Section 19 of the Ordinance ibid. It is appropriate to determine whether all kind of orders including interim, interlocutory or the final order passed in contempt proceedings are appealable. As the word orders has not been defined in the very Ordinance, it is appropriate to trace out its meaning from sister legislation as parimateria. In Section 2(14) of the Civil Procedure Code word order has been described as:- "(14) "Order" means the formal expression of any decision of a Civil Court which is not a decree: According to Order XLIII, C.P.C. only the effective, determinative orders are appealable. Normally an order has following characteristics:-
(i) Order which finally resolved the controversy.
(ii) Order which materially and directly affect the final decision.
(iii) The order which causes some inconvenience/prejudice the party without there being any final determination.
(iv) The routine order passed to facilitate the progress in reaching the final order or judgment.
The conjoint reading of definition of word "order" or "orders" provided in Section 2(14) of C.P.C. and in Order XLIII, C.P.C., it can be said that word "order" means "the formal expression of any final decision" and any order which is not founded on any decision is devoid of attaining the status of an order. The challenging of each and every interim procedural kind of order will over-flood the litigation and would make the very litigations as well as the proceedings whereunder as unending.
This liberty would practically negate the spirit and intent behind the legislation of Article 204 of the Constitution and entire proceedings in original jurisdiction of the superior court (High Court) would become virtually in executable and worthless. Only such orders, decisions, judgments which finally terminate the contempt proceedings against the contemnor are appealable. The word "order passed in contempt" means the order only awarding punishment and it is the said order which can be assailed in Intra Court Appeal, whereas the interlocutory, interim or procedural orders do not fall within the ambit of the order passed in contempt of court.
08. In this regard, reliance is placed on a case titled as "West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission" (PLD 1979 SC 912), wherein the Hon'ble Supreme Court (Five Members Bench) has held that: "When therefore, section 10 talks of an "order under this Act" being appealable, in its very nature confining ourselves to the facts and circumstances of the present case, it means an order of conviction and not an order of the kind involved herein."
(emphasis added)
In a case titled as M.H. Khondkar and another v. The State and another and M. Noman v. The Dacca Improvement Trust and 3 others (1971 SCMR 743), one M.Noman filed contempt petition against Dacca Improvement Trust and the said petition was dismissed and a show-cause notice was issued to said Noman as to why he should not be punished in contempt of the Court.
He challenged the rejection of his contempt petition as well as issuance of show-cause notice to him, in the Special Leave to appeal and the Hon'ble Supreme Court of Pakistan dismissed the said petition as such it can safely be observed that matter of the initiation or exonerating the contemnor from contempt proceedings is exclusively between the court and the contemnor and any procedural, interlocutory, interim order passed in this regard do not fall within the domain of Section 19 of the Ordinance, 2003 ibid and no Intra Court Appeal is available against such orders.
09. As a parimeteria in the Indian Contempt of Court Act, 1971, a right of appeal is provided against any order or decision passed by the superior judiciary in its original jurisdiction which provision is as under:- "19. Appeals:-(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt-
(a) where the order or decision is that of a single judge, to a Bench of not less than two Judges of the court;
(b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate court may order that-
(a) the execution of the punishment or order appealed against be suspended;
(b) if the appellant is in confinement, he be released on bail; and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by subsection (2).
(4) An appeal under subsection (1) shall be filed
(a) in the case of an appeal to a Bench of the High Court, within thirty days;
(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against."
The question whether any order or decision passed in contempt proceedings would mean every procedural, interim, interlocutory order passed for reaching the main conclusion, is appealable as a matter of right. The issue of availability of remedy of appeal against interim, interlocutory, procedural order passed in contempt of court proceedings was resolved by the Supreme Court of India in following case laws: i. Midnapore Peoples Co-op. Bank Ltd. v. Chunilal Nanda (AIR 2006 SC 2190) wherein it has been observed that: "in the event of orders refusing to initiate contempt proceedings or initiating contempt proceedings or acquitting / exonerating the contemnor or dropping the proceedings for contempt, appeal would not be maintainable as the appeal under Contempt of Court laws is provided only in respect of orders punishing for contempt." ii. B.N.Taneja (IFS) v. Bhajan Lal [1988 (3) SCC 26] it has been observed that: "right of appeal in contempt proceedings is only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt."
Similar view has been taken in other judgments of Indian Jurisdiction titled as Union of India v.
Mario Cabrale Sa (AIR 1982 SC 691), State of Maharashtra v. Mahboob S. Allibhoy [1996 (4) SCC 411] and J.S. Parihar v. Ganpat Duggar [1996 (6) SCC 291].
10. It has also been held in following cases: i. "Adeel Arshad vs. Ishfaq Ahmad Chaudhary, D.C. Khanewal and others" (PLD 2021 Lah. 741) ii. Muhammad Mohsin Rafiq and others vs. Messrs SIDDIQUI & CO." (2021 CLC 1) [Lahore]. that: "Intra Court Appeal against interlocutory order is not maintainable".
11. During the contempt proceedings in the instant matter before the learned single Judge, the appellant filed an Intra Court Appeal No.309 of 2023, titled as "Irfan Nawaz Memon vs. The State", against interlocutory order dated 07.09.2023, passed by learned Single Judge in Chambers, whereby the charge of contempt of Court was framed against him. Said Intra Court Appeal was dismissed vide order dated 02.10.2023, by a Division Bench of This Court; order passed by this Court was challenged by the appellant before the Supreme Court of Pakistan in Criminal Petition No.1143 of 2023, which was dismissed as not pressed by Supreme Court of Pakistan on 12.01.2024.
12. It is observed with great concern that the appellant has neither disclosed the fact of dismissal of first Intra Court Appeal in the instant matter by a Division Bench of this Court nor disclosed that an appeal against order was dismissed as not pressed by Hon'ble Supreme Court of Pakistan vide order dated 12.01.2024.
13. Neither said facts were mentioned in the instant appeal nor copies of the orders passed by both the Courts were placed on record.
14. The Appellant has concealed the material facts by not mentioning the orders passed by this Court and the Supreme Court of Pakistan in earlier round of litigation. It is established law that a person who seeks equity must approach the Court with clean hands. Reference in this regard may be made to the following case laws: i."Sayed Abbas Taqi Mehdi versus Mst. Sayeda Sabahat Batool and others" (2010 SCMR 1840) ii. "Shafqatullah and others versus District and Sessions Judge, Nowshera, N.W.F.P and 4 others" (2001 SCMR 274) iii. "Mst. Naila Hameed versus Ejaz Mahmood and others" (2022 MLD 920) iv. "Asim Irfan Ahmad versus Learned Additional District and Sessions Judge, Islamabad, etc."
(2023 YLR 1123) ii. "Khurram Imtiaz versus Learned Additional Sessions Judge, Islamabad and others" (2023 PCrLJ 640).
15. During the course of argument, learned counsel has informed that show cause notice issued in the impugned order has been withdrawn; warrants of arrest have also been cancelled and only grievance of the appellant is that his name is placed on ECL vide impugned order.
16. When confronted about the application to get permission for travelling for umrah filed before the learned Single Judge, learned counsel for the appellant has stated that no formal application was filed in office, rather the same was given to learned single Judge during the proceedings but no order was passed.
17. The appellant was required to file a proper application in the office for grant of exemption / permission for travelling to perform Umrah but admittedly said procedure has not been adopted.
Submitting of application in the open Court at the time of arguments and passing of verbal order is not the subject matter of the impugned order, hence the same cannot be agitated / challenged in the instant Intra Court Appeal.
18. As the contempt proceedings against the appellant are pending, formal show cause notice has been issued; he is bound to appear in the Court on each and every date of hearing under Section 17(2) of Contempt of Court Ordinance, 2003 so, placing of name on ECL will not cause any prejudice to him.
19. During the course of arguments, learned counsel for the appellant was asked to cite any judgment passed by any superior Court of the country wherein it has been held that Intra Court Appeal under Section 19 of the Contempt of Court Ordinance, 2003, against interlocutory order is competent, learned counsel has failed to cite / produce any single judgment passed by any superior Court of the country on the subject / in support of his contentions.
20. In the light of above discussion and law laid down by Hon'ble Supreme Court of Pakistan, we are of the considered view that instant Intra Court Appeal being not maintainable is hereby dismissed