Contempt proceedings against PCO judges: two judges withdraw from bench following objection

The hearing of first ever contempt proceedings against superior courts judges on Monday took a new turn, when a former judge of Peshawar High Court (PHC) objected the inclusion of Justice Nasirul Mulk and Justice Raja Fayyaz Ahmed in the bench, which led to their withdrawal from hearing of case.
Justice Nasir ul Mulk and Justice Raja Fayyaz Ahmed announced their inability to be part of the bench after their presence in the bench was questioned and the matter was again referred to Chief Justice Iftikhar Mohammad Chaudhry to constitute the bench afresh. The five-member bench headed by Justice Nasirul Mulk took up the contempt case against ten superior court judges for taking oath under the PCO despite a restraining order by the apex court soon after the proclamation of November-3 emergency.
Naeem Bokhari representing Justice Jehanzeb Rahim told the court that his client had submitted a reply to the contempt notice requesting that Justice Nasirul Mulk should rescue himself from the bench in judgement over fellow judges in contempt proceedings for allegedly violating the November-3 restraining order when he himself accepted Justice Abdul Hameed Dogar as chief justice by taking oath from him.
He also questioned whether the contempt notice issued against him should also be issued against at least four sitting Supreme Court as well as high court judges for taking fresh oath from Justice Abdul Hameed Dogar in violation of the order of November 3. Similarly Justice Tariq Parvez was re-appointed as PHC chief justice and took fresh oath in violation of November-3 restraining order on the advice and recommendation of Justice Abdul Hameed Dogar.
Both Justice Mulk and Justice Raja Fayyaz Ahmed had also signed the November-3 restraining order by seven-judge issued soon after the proclamation of emergency overturning the PCO by restraining the then Chief of Army Staff, Corps Commanders, Staff Officers including the then President Pervez Musharraf and Prime Minister Shaukat Aziz from taking actions contrary to the independence of the judiciary. All the judges of the Supreme Court or the High Courts including their chief justices were also required not to take oath under the PCO. Similarly both judges were also signatories of the July 31 verdict of declaring the PCO illegal.
Citing a number of cases both from local and foreign jurisdiction, Advocate Bokhari argued that Article IV of the Code of Conduct for judges command that these judges should not be part of the bench. In his written reply Justice Rahim also questioned the seven judges actually convened and signed the order the same evening at the Supreme Court building when General Musharraf had already proclaimed emergency on November-3.
Justice Rahim, who earlier had sent a complaint to General Pervez Musharraf (Retd) against Chief Justice Iftikhar Mohammad Chaudhry also questioned the presence of former Justice Rana Bhagwandas in Islamabad on November-3 and not in Karachi from where he also called a judge in Lahore when the restraining order of the seven-judge bench was issued that was signed by a judge junior to Justice Bhagwandas a day later on November 5, 2007.
One of the signatures of a judge, the reply alleged, did not tally with his actual signatures on judicial orders and that the order was not signed at one place in the Supreme Court on November-3 but later by circulation, the petitioner claimed.
To establish the presence of judges, who signed the November-3 order, the reply said, the witness of former Justices Javed Butter and Justice Muhammad Nawaz Abbasi is essential, he said asking whether or not the November-3 directives over ruled and set aside the principles and conclusions laid by the apex court in the 2000 Zafar Ali Shah (of validating Pervez Musharraf's first PCO) and Qazi Hussain Ahmed cases.
The reply also questioned whether eight judges who were members of the 14-judge bench that invalidated the oath taken by judges under PCO actually saw the November-3 order in original before signing the July 31, 2009 verdict to individually satisfy them.
The reply also claimed that Justice Abdul Hameed Dogar had taken oath as the chief justice on November-3 at 7:00 pm before issuance of the restraining order the same day. It also questioned the validity of November-3 direction as judicial order on the touchstone of the findings and conclusions held in 1998 Malik Asad Ali case. The petitioner judge also claimed he was condemned unheard by the Supreme.