PLJ 2012 SC 715
[Original Jurisdiction]
[Original Jurisdiction]
Present:
Nasir-ul-Mulk, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Ejaz Afzal Khan,
Ijaz Ahmad Chaudhry, Gulzar Ahmad and Muhammad Athar Saeed, JJ.
CONTEMPT
PROCEEDINGS AGAINST SYED YOUSAF RAZA GILLANI, THE PRIME MINISTER OF PAKISTAN
REGARDING NON-COMPLIANCE OF THIS COURT'S ORDER DATED 16-12-2009
Crl. Org. P. No.
6 of 2012 in Suo Motu Case No. 4 of 2010, decided on 26.4.2012.
Per
Nasir-ul-Mulk; Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Ejaz Afzal Khan,
Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ. agreeing--
Right to Fair
Trial--
----Scope and
meaning--Right to a `fair trial' means right to a proper hearing by an unbiased
competent forum "Nemo debet esse judex in propria causa" that "no
man can be a judge in his own cause"--Judge must not hear a case in which
he has personal interest, whether or not his decision is influenced by his
interest, for "justice should not only be done but be seen to have been
done "--Right to a fair trial has been associated with the fundamental
right of access to justice, which should be read in every statute even if not
expressly provided for unless specifically excluded. [Pp. 737 & 738] A
Constitution of Pakistan,
1973--
----Art.
10-A--Right to fair trial--Scope of--While incorporating Art. 10-A in the
Constitution and making the right, to a `fair trial' a fundamental right, the
legislature did not define or describe the requisites of a `fair trial', which
showed that perhaps the intention was to give it the same meaning as is broadly
universally recognized and embedded in jurisprudence in Pakistan. [P. ] G
PLD 1965 SC 90
and PLD 1999 SC 1126 ref.
Constitution of Pakistan,
1973--
----Arts. 8
& 10-A--Law, custom or usage--Right to a fair trial--Scope--Law, or custom
or usage having the force of law, which is inconsistent with the right to a
`fair trial' would be void by virtue of Art. 8 of the Constitution. [P. 738] B
PLD 1983 SC 457;
PLD 1964 SC 673; PLD 2007 SC 578; PLD 2010 SC 61; PLD 2009 SC 879; PLD 2011 SC
213; PLD 2006 SC 602; PLD 1996 SC 324; PLD 2001 SC 607; 1969 SCMR 460 ref.
Constitution of Pakistan,
1973--
----Arts. 10-A
& 204--Contempt of Court Ordinance (V of 2003), S. 17--Initiation of
proceedings for contempt of Supreme Court against Prime Minister of Pakistan
for non-compliance with the directions given by the Supreme Court in a case to
the Federal Government for the revival of the request, withdrawn by the former
Attorney General for Pakistan to be a civil party in a money laundering case in
Switzerland (allegedly against the serving President of Pakistan)--Competency
of Judge/Bench to try the accused for contempt of Court after having issued
show-cause notice, framed the charge and having formed prima facie opinion
against the accused--Scope--Contentions of the accused (Prime Minister) were
that since the present Bench initiated the contempt of Court proceedings suo
main, issued show-cause notice and framed charge, it no longer remained
competent to proceed with the trial, for to do so would be in violation of the
principle of `fair trial' guaranteed under Art. 10-A of the Constitution, and
that the present Bench having already formed an opinion, even if prima facie,
about the culpability of the accused, it was no longer competent to proceed with
the trial--Validity--While issuing a show-cause notice for contempt, a Judge
only forms a tentative opinion, which was subject to the ultimate outcome at
the conclusion of the trial--Judge, making a prima facie assessment of a
contempt matter, whether initiated suo motu or on the application of a party,
did not stand disqualified on the touchstone of the requirements of a `fair ,
trial', from hearing and deciding the matter--Present trial of the accused did
not infringe upon his fundamental right to a `fair trial' enshrined in Art.
10-A of the Constitution as none of the Judges of the present Bench had the
remotest personal interest in the matter and the contempt proceedings arose out
of non-implementation of the judgment of the Supreme Court--Cause was not of
any member of the Bench but of the Court and in a wider sense of enforcement of
the law--Judge, when otherwise disqualified on account of the principles that,
"no one should be a judge in his own cause and justice should not only be
done but should manifestly appear to have been done", may still sit in the
proceedings if in his absence the Tribunal or the Court having exclusive
jurisdiction would not be complete--Such exception on the ground of necessity
was also attracted to the present case--After the show-cause notice was issued
to the accused, a preliminary hearing was afforded to him in terms of S.17(3)
of the Contempt of Court Ordinance, 2003, and upon conclusion of such hearing
Supreme Court decided to proceed further and frame a charge against the
accused, which was challenged by him through an intra-Court appeal--Said appeal
was dismissed and the order by the present Bench, forming a prima facie opinion
of frame the charge against the accused, was upheld--Like the present Bench,
the Bench hearing the Intra-Court appeal had also applied its mind to the
existence or otherwise of a prima facie case and if the contention of the
accused was accepted, all the members of the Bench hearing the intra-Court
appeal would be equally disqualified, with the exception of one judge; no Bench
could then be constituted to hear the present contempt matter. [Pp. 738, 739, 740 & 742] C, D,
F, H & I
PLD 1965 SC 527;
PLD 2007 SC 642; AIR 1986 SC 180; AIR 2000 SC 1401; PLD 1989 Kar. 404. PLD 1993
SC 341; PLD 1996 SC 324; PLD 1965 SC 90; AIR 1975 SC 596; PLD 1989 SC 689; PLD
1969 Lah. 480; PLD 1955 FC 185; 2003 SCMR 104; 1985 SCR 91, 322 at p.332;
2002(2) SCC 290; (1974) and PLD 1971 SC 585 ref.
Constitution of Pakistan,
1973--
----Arts. 10-A
& 204--Contempt of Court Ordinance (V of 2003). S.17--Right to fair
trial--Contempt of Supreme Court--Exercise of contempt jurisdiction by the
Court `on its own motion' and `on the complaint of a party'--Distinction and
Scope--Such distinction was material as in both the situations a Judge applies
his mind before issuing notice to the accused and later forms a prima facie
opinion after preliminary hearing whether or not to frame a charge and proceed
with the trial--If it is held that a Judge holding a trial after having formed
a prima facie or tentative opinion on merits of a case violates a litigant's
fundamental right guaranteed under Art. 10-A of the Constitution, it would lead
to striking down a number of procedural laws and well established practices,
and may land the judicial system into confusion and chaos; a Judge, who frames
a charge in every criminal case, will stand debarred from holding trial of the
accused; a Judge hearing a bail matter and forming a tentative opinion of the
prosecution case would then be disqualified to try the accused; a Judge
expressing a prima facie opinion while deciding a prayer for grant of
injunction would become incompetent to try the suit--In all such situations the
cause is not personal to the Judge and he has no personal interest in the
matter to disqualify him. [Pp.
739 & 740] E
PLD 1971 SC 585
ref.
Constitution of Pakistan,
1973--
----Arts. 204
& 248--Diplomatic and Consular Privileges Act, (IX of 1972),
Preamble--Vienna Convention on Diplomatic Relations, 1961, Preamble--Initiation
of proceedings for contempt of Supreme Court against Prime Minister for
non-compliance with the directions given by the Supreme Court in a case to the
Federal Government for the revival of the request, withdrawn by the former
Attorney General for Pakistan to be a civil party in a money laundering case in
Switzerland (allegedly against the serving President of Pakistan)--Immunity to
the President--Scope--Plea of postponing implementation of directions of
Supreme Court given in the said case till tenure of office of the President
came to an end--Immunity to President in regard to case before a foreign
Court--Contention of the accused (Prime Minister) was that he would not
implement the directions given by the Supreme Court in the case as implementing
the same could lead to reopening of the case and trial of the President in a
foreign country, who had absolute and inviolable immunity before all foreign
Courts, as long as he was in the office, from any civil or criminal
matter--Validity--Postponement of the implementation of the directions of the
Supreme Court tilt expiry of tenure of the President would amount to
modification of the clear orders and direction given by the Supreme Court in
the main as well as in the review judgment, which judgments clearly stated that
the implementation was to be carried out immediately and without delay--Present
Bench had no power to modify the judgment and delay implementation--Contentions
regarding immunity of President under the International Law had been urged
before the Supreme Court in review petitions and same were not accepted,
therefore, present Bench was in no position to examine such contentions, and
even otherwise, present Bench was not sitting in review and, therefore, could
not go beyond what had been held therein--Complete facts of the case in the
foreign Court were not available before the present Bench, therefore, the
authorities or the Courts in the foreign country alone could, in the light of
the facts before it, examine the question of immunity--Immunity could,
therefore, be invoked before the relevant authorities in the foreign country
and, if the same was indeed available, it might be granted to the President
without invocation. [Pp. 745 & 746]
J, K, L & M
Constitution of Pakistan,
1973--
----Arts. 187,
190 & 204--Issue and execution of processes of Supreme Court--Action in aid
of Supreme Court--Scope--Initiation of proceedings for contempt of Supreme
Court against Prime Minister for non-compliance with the directions given by
the Supreme Court in a case to the Federal Government for the revival of the
request, withdrawn by the former Attorney General for Pakistan to be a civil
party in a money laundering case in Switzerland (allegedly against the serving
President of Pakistan)--Contention of the accused (Prime Minister) was that
implementation of orders and directions given by the Supreme Court fell within
the territorial jurisdiction of the Provincial High Court, which Court alone
was empowered to implement the said orders and directions--Validity--Art. 187
of the Constitution did not, in any manner, oust Supreme Court's power to
enforce its decisions, particularly in view of its wide powers under Art. 190
and under Art. 204 of the Constitution to punish any person for disobeying the
orders of the Court--Art. 187(1) of the Constitution only mandated that when
the orders of the Supreme Court were to be enforced within a Province they
shall be executed as if issued by the High Court of that Province; not that the
execution was to be carried out by the High Court. [Pp. 747 & 748] N
Contempt of
Court Ordinance, 2003 (V of 2003)--
----S.
17(3)--Constitution of Pakistan,
1973 Arts. 204 & 90(2)--Rules of Business, 1973, Rr. 5(1) &
5(2)--Contempt of Supreme Court--Initiation of proceedings for contempt of
Supreme Court against Prime Minister for non-compliance with the directions
given by the Supreme Court in a case to the Federal Government for the revival
of the request, withdrawn by the former Attorney General for Pakistan to be a
civil party in a money laundering case in Switzerland (allegedly against the
serving President of Pakistan)--Question as to whether accused (Prime Minister)
had the knowledge, of the said orders and directions--Presumption--Liability of
accused (Prime Minister) for acting on summary/advice tendered to him in the
ordinary course of business--Scope--Contentions of the accused (Prime Minister)
were that the only order specifically and particularly addressed and
communicated to him was the show-cause notice, requiring him to appear before
the Supreme Court and prior to said notice, no other order with direction
directly to the accused was brought to his notice; that during early stages of
the implementation process, directions were given to the officials of the
concerned Ministry and the National Accountability Bureau to prepare proper
summaries for consideration of the Prime Minister (accused) but no specific
direction was ever given to him: that accused was not to be blamed for the
summaries presented to him, if same were not prepared in conformity with the
directions of the Supreme Court; that the accused could not be held personally
responsible for any wrong advice tendered to him in the ordinary course of
business, and that knowledge of the orders and directions of the Supreme Court
could not be presumed, rather same, had to be proved--Validity--Contention of
accused regarding lack of knowledge of the directions given by the Supreme
Court until'the issuance of the show cause notice, lost significance in the
light of the categorical stand taken by him when he appeared before the Supreme
Court after issuance of the show cause notice, as well as in his written
statement, that he was not for the time being willing and ready to carry out
the order of the Supreme Court, which by itself established his
disobedience--Such stance taken by the accused continued right up to the
conclusion of the trial, which stance amounted to saying that the order of the
Supreme Court was non-implementable, as the accused believed that the same was
not in accordance with the Constitution and International law--All the relevant
documents, including the opinion of the former Attorney-General, along with the
up-to-date interim orders of the Supreme Court, relating to implementation,
were appended with the summary presented to the Prime Minister--Said summary
did not relate to routine business of the Government as it involved
implementation of the judgment of the Supreme Court in a well-publicized case
of immense public importance which involved the serving President of the
country--Since the accused had selected one of the four proposals in the said
summary, it showed that he had applied his mind to the case and consciously
approved the proposal directing the Law Minister to continue with the stance
that the case against the President could not be revived as the same had been
closed on merits--Decision taken by the accused on basis of the summary,
therefore, was not to implement the Supreme Court's directions--Rules of
Business, (1973) had to be followed for the purpose of implementation of the directions
of the Supreme Court but the same were used for its
non-implementation--Implementation of the directions of the Supreme Court was a
straightforward case on which there could have been no two views, and even if
there was any, the accused never approached the Supreme Court for
clarification--Matter involved was not the one where the Prime Minister
(accused) was left with any discretion and he was supposed to give a formal
approval or direction to implement the decision of the Supreme Court--Prime Minister
(accused) had never intended to comply with the orders of the Supreme Court
regardless of any advice, therefore, : he could not shift the blame or the
responsibility to his Advisors for not giving him proper advice--Accused Prime
Minister, in circumstances, had taken a conscious decision and had to accept
responsibility for failing to obey a lawful order, which he was
Constitutionally bound to obey. [Pp.
750, 754, 755, 756, 758 & 759] O, P, Q, R, U, V, W, Y & AA
PLD 1963 SC 1;
2001 (3) SCC 739; 2001(7) SCC 530; 1970(3) SCC 98; PLD 1962 SC 476; AIR 1989 SC
714; PLD 1961 SC 192; PLD 1985 SC 407; PLD 2009 SC 814 ref. PLD 2009 SC 814
distinguished.
Constitution of Pakistan,
1973--
----Art.
204--Contempt of Court Ordinance, (V of 2003), S.3--Contempt of Supreme
Court--Non-implementation of the orders and directions of the Supreme Court on
the ground that same were not in accord with the Constitution and the
Law--Effect--Non-implementation of orders and directions of the Supreme Court
on such a ground would set a dangerous precedent and anyone would then
successfully flout the orders of the Courts by pleading that according to his
interpretation orders were not in accord with the law; a judgment debtor would
then be allowed to plead before the executing Court that the decree against him
was inconsistent with the established law--No finality would then be attached
to the judgments and orders of the Courts, even those by the Supreme Court. [P. 755] S
Constitution of Pakistan,
1973--
----Arts. 204,
185 & 188--Contempt of Supreme Court--Process for questioning the decision
of the Supreme Court--Scope--Executive authority may question a Court's
decision through the judicial process provided for in the Constitution and the
law but is not entitled to flout the same because it believes the decision to
be inconsistent with the law or the Constitution. [P. 756] T
Constitution of Pakistan,
1973--
----Arts. 204
& 100--Contempt of Supreme Court--Non-implementation of the orders and
directions of the Supreme Court--Statement made by the Attorney-General before
the Court--Presumption of correctness attached to such
statement--Scope--Attorney-General had made a statement in the Supreme Court
that he had duly communicated the detailed order of the Supreme Court to the
Prime Minister (accused), through which order accused was put on notice to
implement the orders and directions of the Court--Contention of accused that
value of such statement by the Attorney-General was only the evidence that it
was made but not of its contents unless the Attorney-General testified on oath
to the correctness of the statement--Validity--Attorney-General was the
Principal Law Officer of the Federation and the statements made by him before
the Court were official communications and thus, were presumed to be correct,
unless validly contradicted. [P. 758] X
Constitution of Pakistan,
1973--
----Art.
204--Contempt of Court Ordinance (V of 2003), S. 17--Contempt of Supreme
Courts-Charge of "wilful disobedience" of the orders and directions
of the Supreme Court by the Prime Minister--Requirement of mens rea--Conduct of
accused establishing the mens rea for the offence--Scope--Contentions of the
accused (Prime Minister) were that contempt proceedings were criminal in
nature, therefore, mens rea of the accused was to be established and it must be
proved that his conduct was contumacious, and that prosecution had failed to
establish mens rea for the charge--Validity--Accused had been charged for
"wilful" disobedience and the mens rea required for such charge, was
the wilfulness of the accused, which was amply demonstrated by the conduct of
the accused, who being aware of the directions of the Supreme Court and being
Chief Executive of the Federation was the ultimate authority to formally carry
out the orders of the Court, which he persistently declined--Directions of the
accused in regard to the summaries presented to him, and his categorical stand
before the Supreme Court upon commencement of the contempt proceedings,
established beyond reasonable doubt that the accused wilfully flouted, and
continued to flout, the orders of the Supreme Court and failed to obey a lawful
order, which he was Constitutionally bound to obey. [P. 759] Z
Contempt of
Court Ordinance, 2003 (V of 2003)--
----Ss. 2(a), 3
& 5--Constitution of Pakistan, 1973 Art.204--Punishment for contempt of
Supreme Court--Scope--Charge against the Prime Minister of wilfully flouting,
disregarding and disobeying orders and directions of the Supreme
Court--Scope--Contempt of Court Ordinance, 2003, derived its authority from
Art. 204(3) of the Constitution, and Art. 204(2) of the Constitution itself
empowered the Supreme Court to punish a person for committing "contempt of
Court"--Words, "wilfully flouting, disregarding and disobeying"
as used in the charge framed against the accused also stood sufficiently
covered by the provisions of Art. 204(2) of the Constitution. [Pp. 759 & 760] BB
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
221--Constitution of Pakistan,
1973 Art. 204--Contempt of Supreme Court--Charge to state
offence--Scope--Charge against the accused (Prime Minister) was of
non-implementation of orders and directions of the Supreme
Court--Scope--Section 221, Cr.P.C, clarifies that a charge is to state the
offence and if the offence with which an accused is charged is given a specific
name by the relevant law then the offence may be described in the charge
"by that name only"--According to Section 221, Cr.P.C. "If the
law which creates the" offence does not give it any specific name, so much
of the definition of the offence must be stated as to give the accused notice
of the matter with which he is charged"--Section 221, Cr.P.C, further
provides that "the law and section of the law against which the offence is
said to have been committed shall be mentioned in the charge"--In the
present case, not only the name of the offence, i.e. contempt of Court had been
specified in the charge framed against the accused but even the relevant
Constitutional and legal provisions defining `contempt of Court' had been mentioned
in the charge framed, which in terms of Section 221(5), Cr.P.C, "is
equivalent to a statement that every legal condition required by law to
constitute the offence charged was fulfilled in the particular case”. [P. 760] CC
Contempt of
Court Ordinance, 2003 (V of 2003)--
----Ss. 5 &
18--Constitution of Pakistan, 1973 Art.204--Punishment for contempt of Supreme
Court--Satisfaction of the Court that such contempt caused substantial
detriment--Scope--Section 18 of the Contempt of Court Ordinance, 2003, clearly
shows that despite culpability of accused having been established, a Court
seized of a matter of contempt is not to hold the offender guilty or punish him
for every trivial contempt committed and it is only a grave contempt having the
effects mentioned in Section 18(1) of the Contempt of Court Ordinance, 2003,
that may be visited with a finding of guilt or punishment--Satisfaction of the
Court mentioned in Section 18(1) of the Ordinance regarding gravity of the
contempt is to be adverted to by it after commission of the contempt is duly
established and such satisfaction of the Court is neither an ingredient of the
offence nor a fact to be proved through evidence--Such satisfaction is purely
that of the Court concerned keeping in view the nature of the contempt found to
have been committed, its potential regarding detrimental effect upon
administration of justice or scandalizing the Court and its tendency to bring
the Court or the Judge into hatred or ridicule--At such stage the contempt of
Court attributed to the offender already stands established and assessment of
the tendency of the contempt to possibly create the mentioned detrimental
effects is thereafter to be undertaken by the Court for its own satisfaction in
order to decide whether to convict or punish the offender or not and such
satisfaction based upon judicially assessed possible effects is not to be based
upon proofs or evidence to be produced during the trial--Where, however, the
Court is not satisfied about the mentioned detrimental effects, then despite
the contempt having been established and proved, it may not convict or punish
the offender and may resort to merely deprecating the conduct or actions of the
accused in terms of Section 18(2) of the Contempt of Court Ordinance,
2003--Satisfactions of the Court contemplated by Section 18(1) of the Ordinance
are the minimum thresholds to be crossed and there is no limit upon a Court
regarding not recording satisfaction in respect of any graver detriment or
tendency made possible by the conduct or actions of an offender. [Pp. 760 & 761] DD
Contempt of
Court Ordinance, 2003 (V of 2003)--
----Ss. 3, 5
& 18--Constitution of Pakistan,
1973 Art. 204--Contempt of Supreme Court--Wilful, deliberate and persistent
defiance by the accused (Prime Minister) of the orders and directions of the
Supreme Court given in a case--Scope--Such clear and persistent defiance by the
highest executive functionary of the State constituted contempt which was
substantially detrimental to the administration of justice and tended not only
to bring the Supreme Court but also the judiciary of the country into
ridicule--Accused in his written submissions had specifically adverted to the
provisions of section 18 of the Contempt of Court Ordinance, 2003, and,
therefore, he was fully aware of the applicability and implications of the said
legal provision vis-a-vis the case against him. [Pp.
761 & 762] EE & GG
Constitution of Pakistan,
1973--
----Art.
204--Contempt of Court Ordinance (V of 2003), S.3--Contempt of Supreme
Court--Defiance of orders of Supreme Court by the Chief Executive of the
State--Effect--Such defiance might tempt others in the country to follow the
example leading to a collapse or paralysis of administration of justice besides
creating an atmosphere wherein judicial authority and verdicts are laughed at
and ridiculed. [P. 761] FF
Per Asif Saeed
Khan Khosa, J; agreeing with Nasir-ul-Mulk, J
Constitution of Pakistan,
1973--
----Art.
204--Contempt of Court Ordinance (V of 2003). S. 3--Wilful flouting, disregard
and disobedience of the directions of the Supreme Court--Supreme Court, in the
present context of the case, quoted "Khalil Gibran":
Indeed, pity the nation
that does not discern villainy from nobility.
I must clarify
that I do not want to spread despair or despondency and it may be appreciated
that no reform or improvement is possible until the ills or afflictions are
identified and addressed." [Pp.
763, 764 & 765] HH
Constitution of Pakistan,
1973--
----Art.
204--Contempt of Court Ordinance (V of 2003), S.3--Contempt of Supreme
Court--Initiation of proceedings for contempt of Supreme Court against Prime
Minister for non-compliance with the directions given by the Supreme Court in a
case to the Federal Government for the revival of the request, withdrawn by the
former Attorney General for Pakistan to be a civil party in a money laundering
case in Switzerland (allegedly against the serving President of
Pakistan)--Supreme Court observed that the conduct of the accused (Prime
Minister) in the present case appeared to be symptomatic of a bigger malady
which, if allowed to remain unchecked or uncured, might overwhelm or engulf the
nation, and quoted the celebrated poet and writer Khalil Gibran in the present
context of the case. [P. 765 & 766]
JJ
Constitution of Pakistan, 1973--
----Preamble
& Art. 204--Contempt of Court Ordinance, (V of 2003). S.3--Contempt of the
Supreme Court--Punishment--Scope--Power to punish a person for committing
contempt of Court is primarily a power of the People of the country to punish
such person for contemptuous conduct or behavior displayed by him towards the
Courts created by the People for handling the judicial functions of the State
and such power of the People has been entrusted or delegated by the People to
the Courts through the Constitution--Ownership of the Constitution and of the
Organs and Institutions created thereunder as well as of all the powers of such
Organs and Institutions rests with the People of the country who have adopted
the Constitution and have thereby created all the Organs and Institutions
established under it--Where the cause is Constitutional and just then the
strength and support for the same is received from the people-at-large who are
the ultimate custodians of the Constitution. [Pp.
766 & 767] KK
Constitution of
Pakistan, 1973--
----Preamble
& Art. 204--Contempt of Court Ordinance (V of 2003). S.3--Initiation of
proceedings for contempt of Supreme Court against Prime Minister for
non-compliance with the directions given by the Supreme Court in a case to the
Federal Government for the revival of the request, withdrawn by the former
Attorney General for Pakistan to be a civil party in a money laundering case in
Switzerland (allegedly against the serving President of Pakistan)--Defiance of
a judicial verdict by the Executive--Punishment for such
defiance--Scope--Person defying a judicial verdict in fact defies the Will of
the people-at-large and the punishment meted out to him for such recalcitrant
conduct or behaviour is in fact inflicted upon him not by the Courts but by the
People of the country themselves acting through the Courts created and
established by them--Where the executive is bent upon defying a final judicial
verdict and is ready to go to any limit in such defiance, including taking the
risk of bringing down the Constitutional structure itself, then it would be the
responsibility of the People themselves to stand up for defending the
Constitution and the Organs and Institutions created and established thereunder
and for dealing with the delinquent appropriately-f--Accused (Prime Minister),
in the present case, was the Chief Executive of the Federation who had openly
and brazenly defied the Constitutional and legal mandate regarding compliance
of and obedience to judgments and orders of the Supreme Court and in his
conviction lay collective damnation. [Pp.
767 & 768] LL, MM, NN & OO
Mr. Irfan Qadir,
Prosecutor/Attorney-General for Pakistan
for Prosecution.
Barrister Aitzaz
Ahsan, Sr. ASC assisted by Barrister Gohar Ali Khan, Mr. Shaukat Ali Javid, Mr.
Shahid Saeed, Mr. Kashif Malik, Mr. Bilal Khokar, Ms. Zunaira Fayyaz, Ms.
Ayesha Malik, Mr. Fahad Usman, Tayyab Jan, Ch. Babars, Advocates with Mr. M.S.
Khattak, AOR for Respondents.
Dates of
hearing: 19.1.2012, 1.2.2012, 2.2.2012, 13.2.2012, 22.2.2012, 28.2.2012,
7.3.2012, 8.3.2012, 21.3.2012, 22.3.2012, 26.3.2012, 27.3.2012, 12.4.2012,
13.4.2012, 16.4.20121, 17.4.2012, 18.4.2012, 19.4.2012, 20.4.2012, 24.4.2012
and 26.4.2012.
Judgment
Nasir-ul-Mulk,
J.--These proceedings for contempt of Court initiated against Syed Yousaf Raza
Gillani, the Prime Minister of Pakistan, emanate from non-compliance with the
directions given by this Court to the Federal Government in Paragraphs No. 177
and 178 in the case of Dr. Mobashir Hassan vs. Federation of Pakistan (PLD 2010
SC 265) for the revival of the request, withdrawn by the former
Attorney-General, Malik Muhammad Qayyum, to be a civil party in a money
laundering case in Switzerland. To understand the context in which the said
directions were given by this Court, it is inevitable to state some material
facts.
2. It was in the fall of 1997 when the then
Attorney- General for Pakistan wrote a letter to the Swiss Authorities
investigating a money laundering case involving commissions and kickbacks paid
by two Swiss Companies, COTECNA & SGS, in contracts granted to them by the
Government of Pakistan. The Attorney-General requested that the Government of
Pakistan be made a civil party in those proceedings so that in the event the
payments of commissions and kickbacks were proved the amount be returned to the
Government of Pakistan being its rightful claimant, with a further request for
mutual legal assistance for the prosecution of such cases pending in the Courts
in Pakistan. The request was granted. It is not necessary for the purpose of
the present proceedings to give further details of the proceedings held in Switzerland. of
relevance is the fact that the proceedings were still pending when on
15.10.2007 the President of Pakistan promulgated an Ordinance called "The
National Reconciliation Ordinance 2007" (now commonly referred to as
"the NRO"). The stated purpose for the promulgation of the Ordinance
was "...... to promote national reconciliation, foster mutual trust and
confidence amongst holders of public office and remove the vestiges of
political vendetta and victimization, to make the election process more
transparent and to amend certain laws for that purpose and for matters
connected therewith and ancillary thereto;" Broadly speaking, the
Ordinance was designed to close investigation and prosecution of certain
categories of cases pending before any of the investigation agencies and the
Courts. of significance for the present proceedings is Section 7 of the
Ordinance which reads:--
"7. Insertion of new section, Ordinance XVIII of
1999.--In the said Ordinance, after Section 33E, the following new section
shall be inserted, namely:--
"33-F.
Withdrawal and termination of prolonged pending proceedings initiated prior to
12th October, 1999.--(1) Notwithstanding anything contained in this Ordinance
or any other law for the time being in force, proceedings under investigation
or pending in any Court including a High Court and the Supreme Court of
Pakistan initiated by or on a reference by the National Accountability Bureau
inside or outside Pakistan including proceedings continued under Section 33,
requests for mutual assistance and civil party to proceedings initiated by the
Federal Government before the 12th day of October, 1999 against holders of
public office stand withdrawn and terminated with immediate effect and such
holders of public office shall also not be liable to any action in future as
well under this Ordinance for acts having been done in good faith before the
said date:
Provided............."
3. The Ordinance and its various provisions were
immediately challenged directly before this Court in a number of petitions
filed under Article 184(3) of the Constitution. While those cases were pending,
the then Attorney-General for Pakistan, Malik Muhammad Qayyum, in the light of
the promulgation of NRO, addressed a letter on 09.03.2008 to the
Attorney-General of Geneva for withdrawal of proceedings. The letter has been
reproduced in Paragraph No. 124 of the judgment in Dr. Mobashir Hassan's case
and because of its relevance to the present proceedings, its contents are
restated:--
"Dear Mr.
Attorney-General,
We write you
further to our meeting of 7
April 2008.
We hereby
confirm that the Republic
of Pakistan having not
suffered any damage withdraws in capacity of civil party not only against Mr.
Asif Ali Zardari but also against Mr. Jens Schlegelmich and any other third
party concerned by these proceedings. This withdrawal is effective for the
above captioned proceedings as well as for any other proceedings possibly
initiated in Switzerland
(national or further to international judicial assistance). The Republic of Pakistan thus confirms entirely the
withdrawal of its request of judicial assistance and its complements, object of
the proceedings CP/289/97.
Request for
mutual assistance made by the then Government, which already stand withdrawn,
was politically motivated. Contract was awarded to reshipment inspection
companies in good faith in discharge of official functions by the State
functionaries in accordance with rules.
The Republic of Pakistan further confirms having
withdrawn itself as a damaged party and apologizes for the inconvenience caused
to the Swiss authorities.
Your sincerely,
Sd/-
Malik Muhammad Qayyum
Attorney-General for Pakistan."
Malik Muhammad Qayyum
Attorney-General for Pakistan."
4. On 16.12.2009 this Court in the case of Dr.
Mobashir Hassan (ibid) declared the NRO void ab initio as a whole,
particularly, Sections 2, 6 and 7 thereof, being ultra vires and violative of
various Articles of the Constitution. It further declared that the Ordinance
shall be deemed non est from the day of its promulgation and "as a
consequence whereof all steps taken, actions suffered, and all orders passed by
whatever authority, any orders passed by the Courts of law including the orders
of discharge and acquittals recorded in favour of accused persons, are also
declared never to have existed in the eyes of law and resultantly of no legal
effect". It was further held that all proceedings terminated in view of
Section 7 of NRO, shall stand revived and relegated to the status of pre-5th of
October, 2007 position. As to the letter written by Malik Muhammad Qayyum, the
then Attorney-General for Pakistan,
dated 09.03.2008 to the Attorney-General of Geneva, reproduced above, it was declared in
Paragraph No. 177 of the judgment:
"Since in
view of the provisions of Article 100(3) of the Constitution, the Attorney
General for Pakistan could not have suffered any act not assigned to him by the
Federal Government or not authorized by the said Government and since no order
or authority had been shown to us under which the then learned Attorney General
namely Malik Muhammad Qayyum had been authorized to address communications to
various authorities/ Courts in foreign counties including Switzerland,
therefore, such communications addressed by him withdrawing the requests for
mutual legal assistance or abandoning the status of a civil party in such
proceedings abroad or which had culminated in the termination of proceedings
before the competent fora in Switzerland or other countries or in abandonment of
the claim of the Government of Pakistan to huge amounts of allegedly laundered
moneys, are declared to be unauthorized, unconstitutional and illegal acts of
the said Malik Muhammad Qayyum."
5. As a consequence of the above declaration
that Malik Muhammad Qayyum was never authorized to send communication to the
Attorney-General of Geneva, the Court gave the following direction in Paragraph
No. 178 of the judgment:--
"Since the
NRO, 2007 stands declared void ab initio, therefore, any actions taken or suffered
under the said law are also non est in law and since the communications
addressed by Malik Muhammad Qayyum to various foreign fora/authorities/Courts
withdrawing the requests earlier made by the Government of Pakistan for mutual
legal assistance; surrendering the status of civil party; abandoning the claims
to the allegedly laundered moneys lying in foreign countries including
Switzerland, have also been declared by us to be unauthorized and illegal
communications and consequently of no legal effect, therefore, it is declared
that the initial requests for mutual legal assistance; securing the status of
civil party and the claim lodged to the allegedly laundered moneys lying in
foreign countries including Switzerland are declared never to have been withdrawn.
Therefore, the Federal Government and other concerned authorities are ordered
to take immediate steps to seek revival of the said requests, claims and
status."
6. Despite the above clear declaration and
categorical direction given by this Court on 16.12.2009, the Federal Government
took no steps, whatsoever, towards implementation of the order. It was not
until 29.3.2010 that a Bench of this Court, headed by the Hon'ble Chief
Justice, while taking suo motu notice of a news item regarding promotion of one
Ahmed Riaz Sheikh an NRO beneficiary as head of the Economic Crime Wing of the
Federal Investigation Agency (FIA) notice was taken of non-implementation of
the various directions given in Dr. Mobashir Hassan's case. The Court,
therefore, in strong terms directed compliance regarding steps for revival of
the cases, including those outside the country.
7. To understand why the present action was
initiated against the Prime Minister of the country, it is necessary to mention
some of the many orders passed by this Court for the implementation of the said
direction. The matter was again taken up by the Court on 30.03.2010 when the
then Secretary, Ministry of Law, Justice & Parliamentary Affairs, Mr.
Justice (Retd) Aqil Mirza, was summoned to the Court and questioned about the
delay in the implementation. He sought time to furnish reply and on 31.03.2010
reports were submitted on behalf of the Ministry of Law, Justice &
Parliamentary Affairs as well as the National Accountability Bureau (NAB).
Copies of the reports were handed over to Mr. Anwar Mansoor Khan, the then
Attorney-General for Pakistan,
who sought time to go through the same and "appraise the Court with regard
to the compliance of the judgment in letter and spirit". On 01.04.2010 the
Court was informed that a letter was written to the Swiss Authorities by the
Chairman NAB. The Court, however, was of the view that a request for being
civil/damaged party to the proceedings in Switzerland shall be made by the
Government of Pakistan, keeping in view the relations in between the sovereign
States and by following the procedure adopted earlier. The direction was given
in the morning and the matter was adjourned to the afternoon of the same day
for a positive response. However, when the Attorney-General appeared at 1.30
p.m., he revealed that "he did his best to have access to the record of
the case lying with Ministry of Law, Justice & Parliamentary Affairs, but
Mr. Babar Awan, Minister of the Ministry, was not allowing him to lay hands on
the same for one or the other reason." Upon this statement, the Court
summoned the Secretary, Ministry for Law, Justice & Parliamentary Affairs,
the same day, who informed the Court that he had received three sealed
envelopes from the Foreign Office, one addressed to him, the other two
containing some material for the Attorney-General, Switzerland and another
functionary. In the letter addressed to him opinion was sought regarding
sending of the envelopes through Diplomatic Bags to Switzerland. That he kept the two
envelopes at home in safe custody and was yet to form an opinion on the matter.
Upon this disclosure, the Court observed:--
