Peshawar PCO judge asks SC to recall contempt notices

Monday, May 10, 2010
ISLAMABAD: Justice Jehanzeb Rahim, Judge of the Peshawar High Court, asked the Supreme Court to recall contempt notices issued to various judges of the Supreme Court and high courts to avoid further damage to the institution of the superior judiciary.

Justice Jehanzeb Rahim also raised 28 questions challenging the validity of the November 3, 2007, orders passed by the seven-member bench of the Supreme Court, headed by Chief Justice Iftikhar Muhammad Chaudhry, against the proclamation of Emergency in the country. Justice Jehanzeb Rahim raised questions in his reply in Cr Original Petition No 104/2009 submitted in the Supreme Court in compliance with orders of the five members larger bench of the Supreme Court announced on May 4, 2010.

Barrister Jehanzeb Rahim is facing charges of contempt for taking oath on November 3, 2007, along with many other judges of the superior courts for violating the same order passed by the seven-member bench of the Supreme Court in the evening of November 3, 2007, which barred the judges from taking oath under the Proclamation of Emergency imposed by then president General Pervez Musharraf.

A special larger bench of the Supreme Court has already declared the Proclamation of Emergency a violation of the Constitution, and all the judges who took oath under PCO on November 3, 2007 or after were sent home besides initiating contempt proceedings against them. Following are the questions raised in the reply:

1. Whether a seven-member bench of available judges was actually constituted in the evening of 3.11.2007?

2. Whether this seven-member bench so constituted, actually convened/assembled in the evening of 3.11.2007 in the Supreme Court building?

3. Whether this bench actually passed an order in the evening of 3.11.2007 and signed the same in the Supreme Court budding?

4. Whether Justice (retd) Rana Bhagwandas was in Islamabad during the working week October 29 till November 2, 2007?

5. Whether Justice (retd) Rana Bhagwandas did not sign the order dated 3.11.2007 on 5.11.2007?

6. Whether judges junior to Justice (Rana Bhagwandas in seniority, signed the order dated 3.11.2007 after 5.11.2007?

7. Whether Justice (retd) Rana Bhagwandas phoned Justice Sair Ali in Lahore on the evening of 3.11.2007 from Karachi to inform him that an order had been passed by some judges in Islamabad and judges of the Lahore High Court, who had gathered at the residence of Justice Sair Ali should refrain from passing any other order in respect of the Proclamation of Emergency issued by General (retd) Pervez Musharraf earlier that day?

8. Whether Justice Ghulam Rabbani was in Islamabad on 3.11.2007?

9. Whether the signatures of Justice Ghulam Rabbani tally with his usual signatures on judicial orders?

10. Whether the order dated 3.11.2007 was signed at one place in the Supreme Court on 3.11.2007 or later by circulation?

11. Whether the names of Justice (retd) Rana Bhagwandas and Justice Javed Iqbal were written in Urdu to indicate the place where they were required to affix their signatures and what was the necessity of so indicating was their absence from the Supreme Court?

12. Whether the order dated 3.11.2007 was actually faxed from the office of the registrar Supreme Court or from some other place and whether the order so faxed, contained the signatures of seven judges of the Supreme Court?

13. Whether the copy of order issued to press contained the signatures of any judge?

14. Whether Justice (retd) Javed Butter and Justice (retd) Mohammad Nawaz Abbasi were part of the seven-member Bench constituted on 3.7.2007 and are, therefore, witnesses to the presence or absence of seven judges (members of the bench) and whether their evidence is not absolutely essential at this preliminary stage?

15. Whether the order dated 3.11.2007 was faxed to the phone numbers of the registrars of the Sindh, Lahore and Peshawar High Courts or to some other numbers?

16. Whether any of the judges who signed the order dated 3.11.2007, ever examined the same in original after 3.11.2007?

17. Whether eight judges namely Justice (retd) Sardar Mohammad Raza Khan, Justice Khalilur Rehman Ramday, Justice Tassadaq Hussain Jilani, Justice (retd) Ch Ijaz Ahmed, Justice Sarmad Jalal Osmany, Justice Mohammad Sair Ali, Justice Mahmood Akhtar, Justice Shahid Siddiqui and Justice Jawad S Khawaja saw the order dated 3.11.2007 in original before signing the judgment dated 31.7.20O9 in the constitution petition No 08 and 09 of 2009 or since then, to satisfy themselves individually that a seven-member bench was constituted, convened, passed and signed the order dated 3.11.2007 on 3.11.2007?

18. Whether the order dated 3.11.2007 passed in the said constitution petition was available in original in the record of the Supreme Court from 3.11.2007 till 22.3.2009?

19. Whether Justice (retd) Abdul Hameed Dogar had taken oath as Chief Justice of Pakistan on 3.11.2007 at 19:00 hours before the order dated 3.11.2007 was passed?

20. Whether copies of order dated 3.11.2007 were or could be delivered to “all judges of the Supreme Court at their residences “no sooner it was passed”?

21. Whether the chief justice of Pakistan was not barred by Article IV of Code of Conduct to sit on any Bench to hear any application moved on November 2, 2007, by Barrister Aitzaz Ahsan?

22. Whether the prohibition in Article IV of the Code of Conduct did not apply equally to the presence of the Chief Justice of Pakistan with respect of Hamid Khan and Rasheed Rizvi, senior advocates of the Supreme Court of Pakistan, in that or any subsequent petition? 23.Whether the CJP Iftikhar Mohammad Chaudhry having decided on 17.10.2007 not to sit on any Bench hearing the petition filed by Justice (retd) Wajiuddin did not violate his own order on 3.11.2007?

24. Whether the order of 3.11.2007 can be said to be a judicial order on the touchstone of the findings, parameters and conclusions in Asad Ali’s case?

25. Whether the undersigned, not having been heard in Review Petition No Nil filed in the Supreme Court has not been condemned unheard and whether in the light of formulations No 4.1 to 4.70 in that review petition, the judgement dated 31.7.2009 is to be recalled, varied and modified?

26. Whether the show cause notice issued and being responded to should also be issued to Justice Nasirul Mulk, Justice Shakir Ullah Jan (signatories to that order), Justice Tassaddaq Hussain Jillani, Sarmad Jalal Osmany who took fresh oath from Abdul Hameed Dogar, ‘CJP’ after 3.11.2007 and before 22.3.2009 in violation of the order dated 3.11.2007? 27. Whether Justice Nasirul Mulk should sit on a Bench in judgement over fellow judges in contempt proceeding for violating the order dated 3.11.2007, when he himself had done the same and accepted Abdul Hameed Dogar as the chief justice of Pakistan?

28. Whether Tariq Pervez, having been re-appointed as Chief Justice of Peshawar High Court and taken fresh oath in violation of the order dated 3.11.2007 on the recommendation of Abdul Hameed Dogar, can sit on a Bench constituted to look into the same violation by other judges and Justice (retd) Abdul Hameed Dogar.

Justice Jehanzeb Rahim requested the court that the above propositions, some of which require evidence, may kindly be decided in preliminary proceedings and should the honourable Bench decide to proceed further, the following issues may then be adjudicated upon.

He also raised a number of other questions in his reply, including “Whether proceedings under contempt laws can be initiated against judges of the high courts and the Supreme Court of Pakistan?

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