ISLAMABAD: The Attorney General for Pakistan (AGP) told a two-judge bench that in contempt jurisdiction it cannot proceed on the issue that whether the committee has authority to withdraw a case in which cognizance has already been taken by a regular bench.
The bench, comprising Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi, on Thursday, heard the contempt notice against the SC Additional Registrar Nazar Abbas.
The bench again instead of proceeding on contempt notice heard arguments whether the judges’ committees, constituted under Section 2 of the Supreme Court (Practice and Procedure) Act and Article 191A of the Constitution, can trump the judicial order.
The bench after hearing the arguments of amici and the AGP, Mansoor Usman Awan, reserved the judgment.
During the proceeding, Justice Aqeel questioned whether in contempt jurisdiction this court can ask the chief justice of Pakistan to set up Full Court to decide the instant matter? The judge said that he has asked this question because later on someone may not say that the SC bench had cross its limit.
The attorney general contended that after issuing contempt notice to Additional Registrar Nazar Abbas, under Article 204(3) of the Constitution read with Contempt of Court Ordinance, 2003, the case should be referred to the chief justice to consider the expediency or propriety of taking action in the matter under Order XXVII Rule 7(1) of Supreme Court Rules, 1980.
Usman said if under Rule 7(2) the chief justice decides that the action should be taken, then issue notice to the AGP, who shall in that event be under a duty to conduct the contempt proceedings. He said after deciding the contempt matter the Court can come to the conclusion that question of law has arisen, adding “the bench cannot go ahead on the issue without a decision on contempt of court notice”. When the contempt matter is settled thereafter the bench refer the issue to the chief justice for forming Full Court on the issue.
Earlier, Justice Mansoor, while hearing arguments of amicus curiae Khawaja Haris, inquired if a regular bench takes cognizance of an issue and frame questions then whether the committee can withdraw the case. He remarked there were over 50,000 cases in the Supreme Court, and questioned whether the Registrar or Committee would decide which case is to be fixed before which bench.
Khawaja Haris submitted that the law clearly says that the constitutional matter be heard by the constitutional benches. The case was not withdrawn on the registrar’s order, but it was done on the committee’s order, he added.
Justice Mansoor then said whether the regular benches are not even permitted to explore/create/understand the question of law, adding if somehow a case is fixed before a regular bench that involves constitutional question, and it took cognizance of it and framed question, then can Committee with the case and say it should go to the constitutional bench. He said if the committee does this then where is independence of judiciary, and it also means they (regular benches) do not have power to hear such cases. The committee itself decided about this case, and was fixed before them, he added.
Justice Mansoor also questioned whether anywhere in the world in judiciary the benches are constituted by an executive body, but here the Judicial Commission of Pakistan had formed the bench. Justice Mansoor said they wanted to examine whether there was violation of Article 191A, adding if the bench passes an order which is illegal then this order can be examined only by a larger bench or higher forum, and not but the executive or the Committee. The larger bench or higher forum can declare that order per in curiam.
Khawaja Haris said when the constitution clearly says that the constitutional matter be heard by the constitutional bench then through judicial order Full Court cannot be constituted. He submitted that 26th Amendment and Supreme Court (Practice and Procedure) Act are to date valid legislation, as no court had set aside them so far. He contended that any case falls under Article 191A (3) should be heard by the constitutional bench, adding this bench should not have heard the CPLA, and had to refer it to the constitutional bench.
Ahsan Bhoon, another amicus, said that the present scheme of law is that any matter where question of law had arisen should be heard by the constitutional bench, adding after the 26th Amendment the SC past judgments of Asad Ali and others in this regard have become redundant. He further said even if this argument is accepted that regular benches can also hear constitutional matter then it would create chaos.
Ahsan also contended that when constitution’s command is that only constitutional benches could hear issues where interpretation or question of law is involved then regular bench should not hear them. Even if any such case comes before a regular bench, which falls under Article 191A then it should refer it to the committee.
Justice Aqeel said if all those things that you were arguing had been discussed earlier before this bench then this situation might not have emerged. Ahsan then read the order of first day hearing, where the Additional Attorney General opposed hearing of the case, and contended after Article 191A the matter be referred to the Committee.
Former president Supreme Court Bar Association said the moment it came to the notice of the bench that the issue involved constitutionality of law it should have referred the matter to the committee. He said in the past, the courts under the garb of interpretation made certain provisions of the constitution redundant. Justice Mansoor then remarked if there was problem in the past then whether everything is ok now? Ahsan replied you (judges) will write about the present.
Ahsan said assumed the bench ask the chief justice to place the matter before the Full Court, and it is not implemented then what would happen. Upon that, Justice Mansoor in a lighter note said you know better than us, adding the judgment on reserved seats has also not [been] implemented.
Copyright Business Recorder, 2025