2026 P Cr. L J 21
2026 P Cr. L J 21
[Islamabad]
Before Saman Rafat Imtiaz, J
Ch. FAWAD AHMED---Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary Ministry of Interior
and another---Respondents
Writ Petitions Nos. 4560 of 2023 and 1976 of 2024, decided on 25th July,
2024.
(a) Constitution of Pakistan---
----Art. 204--- Criminal Procedure Code (V of 1898), S. 1(2)---
Contempt of Court--- Powers of High Court--- Provision of Criminal
Procedure Code, 1898--- Applicability--- Power of High Court to
punish for contempt is an inherent jurisdiction and irrespective of
whether such power conferred by the Constitution, constituted a
fresh power or continuation of an existing power, the jurisdiction is
a special one, which as such is excluded from the purview of S.1(2)
Cr.P.C.
(b) Criminal Procedure Code (V of 1898)---
----S. 1(2)---Criminal proceedings--- Special law or special
jurisdiction--- Applicability--- Provisions of Criminal Procedure
Code, 1898 do not affect a special law or special jurisdiction or a
special form of procedure provided under a law for the time being
in force only in the absence of any specific provision to the contrary
in such law.
(c) Elections Act (XXXIII of 2017)---
---- Ss. 2 (viii) & 199--- Term Code --- Scope--- Term Code has been
defined under S.2(viii) of Elections Act, 2017 to mean Criminal
Procedure Code, 1898--- Specific provision in Elections Act, 2017 has
expressly made Cr.P.C. applicable upon the stipulated matters to the
extent provided thereby bringing it within the fold of Cr.P.C., to
such extent--- By virtue of S.199 of Elections Act, 2017 read with Ss.
1(2) & 5(2), Cr.P.C., provisions of Cr.P.C., apply to reporting,
investigation, summons, warrants, enquiry, or trial of the offence of
contempt conducted by Election Commission of Pakistan to the
extent that no provision or sufficient provision exists for such
matter in the Elections Act, 2017 and Election Rules, 2017.
(d) Elections Act (XXXIII of 2017) S. 10--- Criminal Procedure Code (V of 1898), S. 352---
Constitution of Pakistan, Arts. 10-A & 199--- Constitutional petition---
Contempt proceedings--- Fair trial--- Open Court--- Grievance of
petitioner / accused was that proceedings in jail were not
proceedings in open Court--- Validity--- Effect of S.352, Cr.P.C., was
that the place in which Election Commission held trial of the
offence of contempt was deemed to be an open Court to which
public generally could have access to so far as the same could
conveniently contain them--- Public trial was even otherwise a
requirement of a fair trial pursuant to Art.10-A of the Constitution--
- Power to punish contempt results in a conviction and a citizen can
only be convicted through the exercise of judicial power and such
power is to be exercised in accordance with Art.10-A of the
Constitution--- Election Commission was bound to exercise its
power to punish contempt under S.10 of Elections Act, 2017 and in
accordance with Art.10-A of the Constitution--- Petitioner was
entitled to a fair trial under Art.10-A of the Constitution, which
entailed public hearing--- Orders in question deprived the
petitioner of his Constitutional right to a fair trial by calling a jail
trial of alleged contempt against him without cogent reason and
without ensuring that jail trial was nevertheless an open trial and
as such the proceedings were ultra vires the Constitution and
illegal--- Orders in question were without lawful authority and
superstructure built upon them must fall to the ground--- High
Court set aside orders and notification in question as the same were
without lawful authority--- Contempt proceedings / trial conducted
in jail against petitioner did not constitute an open trial; it stood
vitiated as it was in violation of Art.10-A of the Constitution---
Constitutional petition was allowed, in circumstances.
Lieutenant General (R) Salahuddin Tirmizi v. Election Commission
of Pakistan PLD 2008 SC 735; Muslim Commercial Bank Limited and
another v. Momin Khan and others 2002 PLC (C.S.) 898; Alam Dad
Laleka v. Election Commission of Pakistan PLD 2020 Isl. 20; Election
Commission of Pakistan and others v. Pakistan Tehreek-e-Insaf and
others PLD 2024 SC 267; Naveed Akhtar v. The State PLD 2021 SC 600;
The State v. Khalid Masood Regional Director Pakistan Narcotics
Board, Lahore and 3 others PLD 1996 SC 42; Talal Ahmed Chaudhary v.
The State 2019 SCMR 542; Contempt Proceedings against Imran Khan,
Chairman Pakistan Tehreek-e-Insaf PLD 2014 SC 367; Ghulam Qadir v.
Sharimati Sadori Baie and 2 others 2011 YLR 2560; Abbas Ali and
another v. Asif Abbas and 3 others 2016 CLD 555; Mirpurkhas Sugar
Mills Limited v. Federation of Pakistan 2013 MLD 433; Imran Ahmed
Khan Niazi v. Federation of Pakistan and others PLD 2024 Isl. 155; Mst.
Barkat Bibi v. Khushi Muhammad and others 1994 SCMR 2240; Fazal ur-Rehman and 2 others v. Begum Sughra Haque, 2000 MLD 562; Sabir
Ali v. Mst. Zubaida Bibi 1993 MLD 321; Secretary to Government (West
Pakistan) Now N.W.F.P. Department of Agriculture and Forests,
Peshawar and 4 others PLD 1978 SC 242; Vice-Chancellor Agriculture
University, Peshawar and others v. Muhammad Shafiq and others 2024
SCMR 527; Shahid Orakzai v. Pakistan Muslim League (Nawaz Group)
and 8 others 2000 SCMR 1969; Suo Motu Contempt Proceedings
initiated against Mr. Daniyal Aziz, Federal Minister PLD 2018 SC 738;
Muhammad Ibrahim and others v. Syed Ahmad and others PLD 2000
SC 71; Sukhdev Singh v. Honourable C.J.,S. Teja Singh and the
Honourable Judge of the Pepsu High Court at Patiala AIR 1954 SC 186;
In the matter of: Habib son of Sadullah Khan AIR 1926 Lah. 1; In the
matter of: Muslim Outlook, Lahore, AIR 1927 Lah. 610; Crown v. State
v. Oadna Jabt Mulviya and another AIR 1954 All 523; Abdur Rahman
PLD 1950 Baghdad-ul-Jadid 36; Abdul Hayee Khan v. The Crown and
another PLD 1956 (W.P.) Lahore 424; Messrs Green Vally Trading
Company v. Additional Director of Adjudication State Bank of Pakistan
and another 2003 YLR 1185; Saleem Ahmed Jan v. Deputy
Commissioner, Islamabad and 6 others 2024 CLC 953; Jawwad S.
Khawaja and others v. Federation of Pakistan and others PLD 2024 SC
337; Muhammad Iqbal and others v. Nasrullah 2023 SCMR 273; Amir
Akber Khan and others v. National Accountability Bureau and others
PLD 2022 Sindh 440 and Imran Ahmed Khan Niazi v. Federation of
Pakistan and others PLD 2024 Isl. 155 ref.
Faisal Fareed, Tariq Khokhar, Ch. Fawad Ahmed and Bina Shahid for
Petitioner.
Imran Farooq and Raja Zamir-ud-Din Ahmed A.A.Gs for
Respondents.
Barrister Saman Mamoon for Respondent No. 1/ECP.
Ms. Saima Tariq Janjuah, Deputy Director (Law) Election
Commission of Pakistan.
A. Raheem, S.O. (Litigation I) MOI.
Date of hearing: 11th July, 2024.
JUDGMENT
SAMAN RAFAT IMTIAZ, J.---This Judgment shall decide the above
titled Writ Petitions, which involve common questions of law arising
from similar facts.
2. The Petitioner [Chaudhary Fawad Ahmed] vide W.P. No. 4560 of
2023 has sought (i) setting aside of Orders dated 30.11.2023 ( Impugned
Order I ) and 12.12.2023 ( Impugned Order II ) whereby the Respondent No. 1 [Election Commission of Pakistan ( ECP )] ordered
the contempt proceedings against the Petitioner to be conducted in
Adyala Jail, Rawalpindi ( Adyala Jail ); and (ii) directions to the ECP to
proceed with the hearing in open court as conducted earlier in the
premises of ECP and to the relevant authorities to produce the
Petitioner on each date of hearing.
3. The Petitioner vide W.P. No. 1976 of 2023 has sought declaration
that the Notifications No. F. No. 6/4/2023-Lit-1 dated 8.12.2023 (
Impugned Notification No. I ) and 20.12.2023 ( Impugned Notification
No. II ) whereby the Respondent No. 1 [Federation of Pakistan through
the Secretary, Ministry of Interior ( FOP )] has issued directions to the
concerned authorities to provide all administrative facilitation
including security at all subsequent hearings to be conducted in
Adyala Jail as per directions of the Respondent No. 2 [ECP] are void,
illegal and unlawful and that all proceedings pursuant to the
Impugned Notifications are illegal and of no effect.
4. As per the memoranda of Petitions the Petitioner is a law
practitioner and member of the Supreme Court Bar Association of
Pakistan. He was elected as Member, National Assembly of Pakistan
from NA-97 (Jhelum) and after being chosen for the Federal Cabinet,
served in the Ministries of Information and Broadcasting as well as
Science and Technology in the erstwhile Pakistan Tehreek-e-Insaf
government. The Petitioner has allegedly been targeted by his political
opponents in order to keep him out of the elections held in 2024 by
lodging false, frivolous, and unfounded cases against him in which he
has been arrested merely to vex him and his family. The Petitioner was
in the custody of the National Accountability Bureau on physical
remand at the time of filing of W.P. No. 4560 of 2023. The Petitioner
being under trial prisoner was being produced in various Courts. The
contempt proceedings were initiated against the Petitioner for the
alleged use of intemperate language and contemptuous remarks
against the ECP during media talk.
5. During the proceedings of contempt the ECP issued the Impugned
Order No. I ordering that the contempt matter against the Petitioner
shall be conducted in Adyala Jail by the ECP as proceedings of similar
matter of contempt against Imran Khan shall be conducted in Adyala
Jail, Rawalpindi hence the Ministry of Interior was directed to notify
the trial of the matter in Adyala Jail after fulfilling all the requisite
legal formalities and proceedings for framing of charge against the
Petitioner was ordered to be conducted on 13-12-2023 at Adyala Jail,
Rawalpindi.
6. Thereafter, the ECP issued the Impugned Order No. II ordering
that as similar matters are fixed for proceedings in Adyala Jail on the next date i.e. 13-12-2023 therefore such matter shall also be fixed along
with other matters for submission of reply to show cause notice and
for further proceedings at Adyala Jail, Rawalpindi while also allowing
the Petitioner s lawyers along with clerks, mother and wife to attend
the proceedings on the next date.
7. Subsequently, the FOP issued the Impugned Notifications
pursuant to the Impugned Orders. Hence these Petitions.
8. The learned counsel for the ECP, at the very outset, challenged the
maintainability of the instant Petition. In this regard, she submitted
that the original Notice dated 19.8.2022 issued by the ECP to the
Petitioner was challenged by the Petitioner before the Lahore High
Court, Rawalpindi Bench in W.P. No. 2285 of 2022 while also seeking
inter alia a declaration that Section 10 of the Elections Act, 2017 (
Elections Act ) is ultra vires. Thereafter, Show Cause Notice dated
13.9.2022 ( SCN I ) was issued which too was challenged by the
Petitioner before the Lahore High Court, Rawalpindi Bench in W.P. No.
2605 of 2023 while also seeking declaration that Section 4 of the
Elections Act is ultra vires. Both the said petitions were not pressed on
13.3.2023. However, subsequently the Petitioner filed W.P. No. 47883 of
2023 challenging not only the Notice dated 19.8.2022 and SCN I yet
again but also Order dated 5.6.2023 passed by the ECP in the
proceedings emanating from the Notice dated 19.8.2022 as well as the
vires of Sections 4(2) and 10 of the Elections Act and Rule 4 of the
Election Rules, 2017 ( Election Rules ). Writ Petition No. 47883 of 2023
was dismissed for non-prosecution on 22.1.2024 but a restoration
application was filed by the Petitioner on 23.1.2024 which is pending.
The learned counsel for the ECP therefore argued that propriety
demands that this Court restrain itself from exercising jurisdiction in
the instant matters in view of the pendency of the restoration
application in the writ petition filed before the Lahore High Court,
Rawalpindi Bench. In this regard, she relied upon Lieutenant General
(R) Salahuddin Tirmizi v. Election Commission of Pakistan, PLD 2008
SC 735, whereby it was held that propriety demanded that the
subsequent order passed by the ECP in post remand proceedings
should have also been challenged before the Islamabad High Court
since an earlier order passed by the ECP was challenged before the
Islamabad High Court. The learned counsel also cited Muslim
Commercial Bank Limited and another v. Momin Khan and others,
2002 PLC (C.S.) 898. She confirmed that the Orders and Notifications
impugned in the instant proceedings are not being challenged before
any other High Court. However, she relied upon Alam Dad Laleka v.
Election Commission of Pakistan, PLD 2020 Islamabad 20 whereby this
Court while quoting Salahuddin Tirmizi (Supra) held that where a
litigant challenged a show cause notice before a High Court of one province he cannot be permitted to challenge another order passed in
the same proceedings before another High Court. She argued that
since the Impugned Order I and Impugned Notification I have been
passed in contempt proceedings arising out of Notice dated 19-08-2022
and SCN I, which have been challenged before the Lahore High Court,
Rawalpindi Bench, propriety demands that this Court does not
exercise jurisdiction in the matter. The learned counsel for ECP further
contended that this Court will be required to interpret Section 10 of
the Elections Act in order to consider the arguments of the Petitioner
as to whether or not ECP is a Court and whether it is liable to fulfill the
requirements of Section 352, Cr.P.C., whereas the vires of Section 10 of
the Elections Act is under challenge by the Petitioner in W.P. 2285 of
2022 before the Lahore High Court, Rawalpindi Bench.
9. The learned Assistant Attorney General relied upon Election
Commission of Pakistan and others v. Pakistan Tehreek-e-Insaf and
others, PLD 2024 SC 267 and referred to Section 10, C.P.C. to submit
that a party cannot agitate the same matter which is directly or
substantially at issue in a previously instituted case.
10. In response to the challenge to the maintainability of the instant
petitions, the learned counsel for the Petitioner in W.P No. 4560 of
2023 emphasized that the Supreme Court of Pakistan in Salahuddin
Tirmizi (Supra) concluded that both the orders passed by the
Islamabad High Court as well as the Peshawar High Court were passed
with lawful authority. Even otherwise, the learned counsel for the
Petitioner submitted that the circumstances of the case of Salahuddin
Tirmizi (Supra) are different from the instant case as in the said case
an order passed by the ECP rejecting an application for a re-poll was
challenged before this Court in writ petition wherein this Court
remanded the matter to the ECP whereas what was challenged before
the Peshawar High Court was an order passed by the ECP in post
remand proceedings. The learned counsel for the Petitioner denied
that the matter agitated before this Court is the same or substantially
similar to the matter agitated in W.P. No. 47883 of 2023 before the
Lahore High Court, Rawalpindi Bench and that even otherwise the said
petition cannot be considered as pending since it has been dismissed
vide the Order dated 22.1.2024 and has not yet been restored. In this
regard, he referred to Order IX, Rules 8 and 9, C.P.C. to argue that a
matter dismissed for non-prosecution cannot be revived till the order
of dismissal has been set aside which has not yet happened in W.P. No.
47883 of 2023 as the restoration application is still pending. Moreover,
he argued that the Lahore High Court, Rawalpindi Bench has not
exercised jurisdiction in the matter as the matter has not been heard
on merits. Whereas, the Petitioner has also challenged Impugned
Order and Notification II arising from Show Cause Notice dated 13-6 2023 ( SCN II ), which was challenged by the Petitioner before this
court vide W.P. 2004 of 2023 that was dismissed and against which ICA
No. 354 of 2023 has been filed which is pending. He therefore
contended that the instant writ petitions challenging the Impugned
Order and Impugned Notification II are maintainable as this Court has
already exercised jurisdiction in SCN II, and in view thereof the
Impugned Order I as well as the Impugned Notification I would
naturally also be challenged before this Court.
11. On merits the learned counsel for the Petitioner referred to
Section 9(4) which provides that while exercising the powers
conferred on it by subsection (1), the ECP shall be deemed to be an
Election Tribunal to which an election petition has been presented and
shall, notwithstanding anything contained in Chapter IX, regulate its
own procedure. He pointed out that the ECP is not a Tribunal under
Section 10 and that it is not a Court as without a Constitutional
amendment in Article 175A, another High Court cannot be established
vide statutory provisions. He highlighted that pursuant to Section 199
of the Elections Act the Cr.P.C. applies to, inter alia, the trial of an
offence where sufficient provision does not exist in the Elections Act.
He therefore argued that the ECP was bound to follow the procedure
prescribed in Section 342, Cr.P.C. and Section 3 of the Lahore High
Court Rules for a jail trial, which the ECP failed to do. The learned
counsel for the Petitioner drew the Court s attention to the Impugned
Order I wherein it has been noted that since the contempt proceedings
against Imran Khan are taking place in Adyala Jail, Rawalpindi
therefore proceedings against the Petitioner shall also be conducted in
Adyala Jail. He submitted that the Petitioner and Mr. Imran Khan have
been issued different show cause notices. He referred to copies of SCNs
issued to the Petitioner as well as the notice/show cause notices dated
19.8.2022 and 13.9.2022 issued to Mr. Imran Khan to highlight that the
contempt allegedly committed by the Petitioner was on different dates
and different venues. He also contended that the instant writ petitions
have not become infructuous despite the Petitioner having been
released on bail as charge against the Petitioner was framed inside
Adyala Jail on 3-1-2024 which will stand vitiated only upon a
declaration setting aside the Impugned Orders and Impugned
Notifications as prayed for vide the instant petitions.
12. The learned counsel for the Petitioner in W.P No.1976 of 2024
argued that the Impugned Notifications have been issued in violation
and derogation of the applicable laws.
13. The learned counsel for the ECP submitted that charge has been
framed against the Petitioner in Adyala Jail pursuant to the Impugned
Order and Notification I only whereas neither charge has been framed nor any further proceedings have been held pursuant to the Impugned
Order and Notification II. As such she argued that the instant writ
petitions to the extent of the Impugned Order and Notification II have
become infructuous by virtue of the fact that the Petitioner is no
longer in Adyala Jail. She submitted that to the extent that the writ
petitions challenge the Impugned Order and Notification I the same
are not maintainable due to the pendency of the restoration
application in W.P No.47883 of 2023 before the Lahore High Court,
Rawalpindi Bench. She pointed out that that the original prayer made
vide W.P No.4560 of 2023 was only to proceed with the contempt case
in open Court and not for setting aside the Impugned Orders. She
argued that the amended prayer whereby setting aside of the
Impugned Orders has also been prayed for even if allowed would be
allowed from the date of amendment and not from the date of
institution of W.P No.4560 of 2023 as no prayer for declaring them void
ab initio has been made. Thus even if W.P No.4560 of 2023 is allowed,
according to the ECP it will not have the effect of setting aside any
order that may have been passed by ECP in Jail pursuant to the
Impugned Order and Notification I prior to the date on which the
prayer was amended as this Court does not have suo motu powers. She
therefore argued that setting aside the Impugned Orders will not have
the effect of vitiating the proceedings that may have taken place in
Adyala Jail so far. She also referred to Section 10, C.P.C. and submitted
that while the same relief may not have been prayed for vide W.P
No.4560 of 2023 filed in this Court as in W.P No.47883 of 2023 filed
before the Lahore High Court, Rawalpindi Bench, however, the
arguments submitted by the learned counsel for the Petitioner before
this Court in these proceedings are substantially the same as
arguments to be submitted before the Lahore High Court, Rawalpindi
Bench in W.P No.47883 of 2023 if the same is restored. She argued that
the contempt proceedings are sui generis and not criminal
proceedings and therefore cannot be equated with trial of an offence
as used in Section 199 of the Elections Act which pertains to other
offences under the said Act. As such she submitted that Criminal
Procedure Code, 1898 ( Cr.P.C. ) has no application upon contempt
proceedings conducted by ECP, who is empowered to regulate its own
proceedings under Section 3 of the Elections Act. She further
submitted that Section 352, Cr.P.C applies to a criminal Court, whereas
ECP while conducting contempt proceedings acts as a High Court.
Similarly Rule 3 of the Lahore High Court Rules and Orders does not
apply to High Court or ECP. She also submitted that the proceedings
before ECP are in any event not open to public and as such the
Petitioner cannot claim that he has the right of public trial in respect
of contempt proceedings. She submitted that the reason for proceeding
with the contempt proceedings against the Petitioner in Adyala Jail was because similar proceedings against Mr. Imran Khan were taking
place in Adyala and that contemptuous remarks by both the accused
persons were made at a time when they were both members of the
same political party.
14. With respect to W.P No.1976 of 2024, the learned counsel for ECP
submitted that although the Petitioner has specifically prayed for a
declaration therein that all proceedings pursuant to the Impugned
Notifications are illegal and of no legal effect, the petition not only
suffers from laches but is also hit by Order II, Rule 2, C.P.C. as the relief
claimed for arises from the same cause of action as alleged in W.P
No.4560 of 2023, in which no such prayer was made and therefore
such claim would be deemed relinquished.
15. While exercising their right of rebuttal, the learned counsel for
the Petitioner in both the instant petitions submitted that Article 10-A
of the Constitution of the Islamic Republic of Pakistan, 1973 (
Constitution ) is to be read into every criminal charge. They relied
upon Naveed Akhtar v. The State, PLD 2021 SC 600 in this regard.
They relied upon The State v. Khalid Masood, Regional Director
Pakistan Narcotics Board, Lahore and 3 others, PLD 1996 SC 42; Talal
Ahmed Chaudhary v. The State, 2019 SCMR 542; and Contempt
Proceedings against Imran Khan, Chairman Pakistan Tehreek-I-Insaf,
PLD 2014 SC 367 to assert that contempt proceedings are quasi
criminal in nature. They argued that ECP does not enjoy unbridled
authority. They drew the attention of the Court to the Impugned
Orders and submitted that they do not refer to Sections 3 and 4 of the
Elections Act and reliance thereupon is an afterthought. They also
pointed out that while the Impugned Orders refer to legal formalities
it is not specified as to which legal formalities.
16. I have heard the arguments of the learned counsel for the
parties and have also perused the record.
Maintainability of Writ Petitions:
17. As held by the Supreme Court in the case of Salahuddin Tirmizi
(Supra) it is proper to decide the question of jurisdiction of this Court
in the first instance being a fundamental question. It is undisputed
that in light of Salahuddin Tirmizi (Supra) this Court does possess
jurisdiction in the instant matter given that the Impugned Orders
under challenge in W.P. No. 4560 of 2023 were passed by ECP in
connection with the affairs of the Federation within the territorial
jurisdiction of this Court.
18. The question posed by the arguments presented by both the
sides is whether keeping in view the principles of propriety settled in
the case of Salahuddin Tirmizi (Supra) this Court ought to restrain itself from exercising jurisdiction in view of the pendency of a
restoration application filed by the Petitioner in W.P. No. 47883 of 2023
(which was dismissed by the Lahore High Court, Rawalpindi Bench for
non-prosecution) wherein the Petitioner has challenged the SCN I from
which the Impugned Order I arises. In this regard I rely upon Ghulam
Qadir v. Sharimati Sadori Baie and 2 others, 2011 YLR 2560 and Abbas
Ali and another v. Asif Abbas and 3 others, 2016 CLD 555 whereby it
has been held that a restoration application by itself would not bring
life into dead proceedings unless life is put into it by the court in the
form of restoration.
19. Be that as it may, W.P. No. 47883 of 2023 was dismissed by the
Lahore High Court, Rawalpindi Bench for non-prosecution on
24.1.2024 whereas the instant W.P. No. 4560 of 2023 was filed before
this Court on 30.12.2023. Thus it transpires that the day when W.P. No.
4560 of 2023 was filed before this Court challenging the Impugned
Orders, SCN I from which the Impugned Order I arose was under
challenge before the Lahore High Court, Rawalpindi Bench.
20. Interestingly enough, SCN II from which the Impugned Order II
arises had been challenged before this Court in W.P. No. 2004 of 2023
which was dismissed on 25.9.2023 against which an ICA was filed and
is pending since 18.10.2023.
21. Going by the argument submitted on behalf of the ECP,
Impugned Order and Notification I should have been challenged
before the Lahore High Court, Rawalpindi Bench whereas the
Impugned Order and Notification II should have been challenged
before this Court.
22. However, let us consider whether the Impugned Orders and
Notifications could be challenged by way of separate petitions before
two different High Courts. The subject matter of both the Impugned
Orders and Notifications is for the ECP to conduct trial of the alleged
contempt against the Petitioner in Adyala Jail. The reason stated in the
Impugned Order I for the jail trial is the contempt proceedings against
Imran Khan to be conducted in Adyala Jail, Rawalpindi while the
reason given in the Impugned Order II is similar matters fixed for
proceedings in Adyala Jail. Thus the reason given in the subsequent
Impugned Order II is the pendency of the proceedings in Adyala Jail
pursuant to inter alia the Impugned Order I. The purported reasons
for the jail trial in the Impugned Orders I and II are therefore
inextricably linked with each other. The Petitioner has challenged both
the Impugned Orders and Notifications on the same grounds.
23. In the case of Muslim Commercial Bank Limited (Supra), the
Supreme Court and in the case of Mirpurkhas Sugar Mills Limited v. Federation of Pakistan, 2013 MLD 433 the Sindh High Court held that
invoking the Constitutional jurisdiction of different High Courts on the
same subject matter seeking the same relief on the same grounds or
different grounds is not permissible. In view of the foregoing
pronouncements, the Impugned Orders I and II could not be
challenged in two different High Courts given that the subject matter
as well as the relief prayed for would essentially be the same and the
grounds identical. Therefore, to avoid the possibility of a conflict in
judgment, the Petitioner was constrained to file one petition
challenging both the Impugned Orders and Notifications. It is also not
out of place to observe that conflicting judgments with regard to the
Impugned Orders could have resulted in an absurd situation.
24. Had the Petitioner challenged both the Impugned Orders and
Notifications before the Lahore High Court, Rawalpindi Bench it would
have invited the Respondents objection to the jurisdiction of the
Lahore High Court, Rawalpindi Bench on exactly the same ground as
raised before this Court by submitting that SCN II from which the
Impugned Order and Notification II arose was heard and dismissed by
this Court which is also seized of ICA No. 354 of 2023 against the
Judgment dated 25.9.2023 passed in W.P. No. 2004 of 2023. Since SCNs I
and II were both challenged before two different High Courts, no
matter which High Court the Petitioner approached to challenge the
Impugned Orders and Notifications, the ECP would object to the
jurisdiction given the pendency of the writ challenging the other SCN
in the other High Court. However, the Petitioner cannot be left
remediless in such circumstances.
25. Moreover, the writ petition filed before the Lahore High Court,
Rawalpindi Bench to challenge SCN I has been dismissed for non-
prosecution and the restoration application has not yet been decided.
Although the dismissal happened after the filing of the instant petition,
this Court can take into consideration subsequent events for the
purpose of giving complete and effective relief in a case1. As such, I
hold that the instant writ petitions are maintainable.
Whether the Writs have become Infructuous as the Petitioner is no
longer in Jail?
26. The Petitioner filed W.P. No. 4560 of 2023 seeking setting aside of
the Impugned Orders and for directions to proceed with the holding of
the proceedings at the ECP premises on 30.12.2023 while the charge
against the Petitioner pursuant to Impugned Order I was framed in
Adyala Jail on 3-1-2024. Given that the charge pursuant to Impugned
Order I was framed in Adyala Jail during pendency of W.P. No. 4560 of
2023, the same has not become infructuous as the determination as to whether or not the Impugned Order I is liable to be set aside will
impact the charge that was framed in jail.
27. The ECP argued that setting aside the Impugned Order I will not
have the effect of setting aside the charge framed in jail pursuant to the
Impugned Order I. In this regard, she highlighted that the initial prayer
was not for setting aside of the Impugned Orders rather was only for
direction to proceed in open court. The Petitioner sought setting aside of
the Impugned Orders by seeking amendment in the prayer clause of the
W.P. 4560 of 2023 on 24.1.2024 which was allowed by this Court on 02-02-
2024 whereas charge had already been framed on 03.1.2024. The learned
counsel for the ECP argued that the Petitioner has not prayed for
declaration that the Impugned Order I is void ab initio and as such
setting aside of the Impugned Orders would take effect from the date of
amendment in prayer and not from the date of institution of the writ
petition.
28. This argument is misconceived in view of Mst. Barkat Bibi v.
Khushi Muhammad and others, 1994 SCMR 2240 wherein it was held
that once an amendment is granted it relates back to the date when
the suit was filed. This dictum has been consistently applied by the
Superior Courts2. Thus, in case the Impugned Order I is set aside, it
will be set aside from the date of institution of W.P. No. 4560 of 2023 in
which case the proceedings held pursuant to the Impugned Order I
will necessarily have to fall to the ground.
3
29. Insofar as the Impugned Orders and Notifications II are
concerned, neither charge has been framed against the Petitioner nor
any other proceedings have been held in Adyala Jail pursuant thereto
whereas the Petitioner has been released from Jail on bail during
pendency of the instant matters hence the ECP s claim that the instant
writs have become infructuous. However, the ECP has not placed
before this Court any material for me to conclude that the Impugned
Orders and Notifications II have been withdrawn. Thus, the possibility
that the ECP may resume hearings in Adyala Jail pursuant to the
Impugned Orders and Notifications II in the event that the Petitioner is
again incarcerated in Adyala Jail cannot be ruled out in which case it
is imperative to determine their legality.
30. Moreover, the ECP has argued that it is free to regulate its
procedure and as such can hold the contempt proceedings at any
venue of its choosing. This argument has been dealt with later in the
instant judgment. Suffice it to say at this point that in such case the
fact that the Petitioner is no longer in jail at the moment would by
itself have no bearing on the Impugned Orders and Notifications unless they are withdrawn. Therefore, in my opinion the writs have
not become infructuous.
Application of Section 352, Cr.P.C. and Rule 3 of the Lahore High
Court Rules on contempt proceedings conducted by the ECP:
31. In Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and
8 others, 2000 SCMR 1969 and in Suo Motu Contempt Proceedings
initiated against Mr. Daniyal Aziz, Federal Minister, PLD 2018 SC 738
the Supreme Court of Pakistan held that contempt of court proceedings
are not stricto sensu a criminal trial under Cr.P.C. but are sui generis
in nature partaking some of the elements of both civil and criminal
proceedings but constituting neither. In Muhammad Ibrahim and
others v. Syed Ahmad and others, PLD 2000 SC 71 the Supreme Court
held that Superior Courts are not bound by the provisions of the Civil
Procedure Code or the Cr.P.C. or by technicalities of ordinary civil or
criminal proceedings in dealing with a contempt matters. Thus it is
clear that the provisions of Cr.P.C. are not strictly applicable upon
contempt proceedings conducted by Superior Courts.
32. That being settled, nevertheless it is important to appreciate the
historical and statutory reasons for why the provisions of Cr.P.C. are
not applicable upon contempt proceedings conducted by superior
courts in order to determine whether they are applicable upon
contempt proceedings conducted by the ECP or not. To this end, I will
refer to the judgment rendered by the Supreme Court of India in
Sukhdev Singh v. Honourable C.J.,S. Teja Singh and the Honourable
Judge of the Pepsu High Court at Patiala, AIR 1954 SC 186 wherein the
applicant argued that contempt by virtue of being an offence
punishable in India under the Contempt of Courts Act, 1952 falls
within the definition of offence given in the Criminal Procedure Code
and as such is triable thereunder. The Supreme Court of India
disagreed with the proposition by referring to Section 1(2) of the
Criminal Procedure Code which expressly excludes special jurisdiction
from its scope and held that the power of the High Court to punish for
contempt is a special jurisdiction inherent in all Courts of Record and
as such excluded from the Code of Criminal Procedure. In order to
support the proposition that it is a special jurisdiction, the judgment
refers to past precedent whereby the origin of the power to punish for
contempt in the case of the Calcutta, Bombay and Madras High Courts
was traced to the Common Law of England. The Government of India
Act, 1915 by way of Section 106 continued to all High Courts then in
existence the same jurisdiction, power, and authority as they had at
the commencement of that Act and Section 113 empowered the
establishment of new High Courts by Letters Patent with authority to
vest in them the same jurisdiction powers and authority as are vested in or may be conferred on any High Court existing at the
commencement of the said Act. Keeping that in view, the judgment
observes that the Lahore High Court was established by Letters Patent
in 1919 and was duly constituted a Court of Record. A Special Bench of
the Lahore High Court punished contempt of itself in the year 1925 in
the matter of Habib son of Sadullah Khan, AIR 1926 Lahore 1. The
judgment rendered therein records that no objection has been taken to
the jurisdiction of such court and as such discussion at length is
unnecessary however the Full Bench observed that the authorities on
the subject have been carefully examined based on which the Court
was satisfied that as a Court of Record it had the jurisdiction to deal
summarily with contempt.
33. After discussing the foregoing history, the judgment rendered in
Sukhdev Singh (Supra) discusses the Contempt of Courts Act, 1926 and
refers to its heading as well as its preamble to hold that the said Act
recognized an existing jurisdiction in all Letters Patent High Court to
punish for contempt [as opposed to creating one]. The only doubt with
which the Contempt of Courts Act, 1926 deals is the doubt whether a
High Court could punish for contempt of a court subordinate to it and
removes such doubt. Thus the judgment holds that the power to
punish for contempt is inherent in the Letters Patent High Courts by
virtue of being Courts of Record. It further notes that in 1927 another
Full Bench of the Lahore High Court consisting of five Judges re-
examined the position in the matter of Muslim Outlook, Lahore, AIR
1927 Lah. 610 and reaffirmed their earlier decision in Habib (Supra)
and held that this jurisdiction is inherent in every High Court. In 1942
the Lahore High Court examined the position in a Full Bench for the
third time and reached the same conclusion. Thus, the Supreme Court
of India in Sukhdev Singh held that the power of contempt is an
inherent power in all Letters Patent High Courts by virtue of being
Courts of Record.
34. Further whether such power conferred in 1950 by the
Constitution of India constituted a fresh power or continuation of an
existing power the jurisdiction was held to be a special one and
therefore outside the purview of Cr.P.C. The Supreme Court of India
also considered the Contempt of Court Act of 1952 which repealed the
Contempt of Court Act, 1926 and observed that it assumes, as the old
Act, the existence of a right to punish for contempt in every High Court
as opposed to creating one. It was also held that since the Constitution
vests the right to punish for contempt in every High Court, no Act of a
Legislature can take away that jurisdiction and confer it afresh by
virtue of its own authority. 35. The Supreme Court of India also reflected upon the wisdom
behind not applying the Criminal Procedure Code in respect of the
exercise of the power to punish contempt by High Courts by observing
that it is apparent that the Criminal Procedure Code cannot be called
in aid in such cases as otherwise given the maximum punishment that
can be imposed for contempt it would be triable by a Magistrate and
not by a High Court. Thus it was held that the Code of Criminal
Procedure does not apply in matters of contempt triable by a High
Court. The High Court can deal with it summarily and adopt its own
procedure.
36. Let us understand what a Court of Record is. In Crown v. Abdur
Rahman, PLD 1950 Baghdad-ul-Jadid 36 the court observed that a
Court of Record according to Blackstone is that where the acts and
judicial proceedings are enrolled in parchment for a perpetual
memorial and testimony; which rolls are called a Records of Courts
and are of such high and super-eminent authority that their truth is
not to be called in question. All Courts of Record are the King's Courts
in right of his Crown and Royal dignity and, therefore, no other Court
had authority to fine or imprison; so that the very erection of a new
jurisdiction with the power of fine or imprisonment makes it instantly
a Court of Record". The judgment holds that it is on this ground that all
the superior Courts in England are Courts of Record and possess the
inherent powers from the earliest times to commit a person for
contempt by a summary process and that the High Courts in India
exercise the inherent jurisdiction to punish their contempt as Courts of
Record as they have been so created by the Letters Patent.
37. In short, the power to deal with contempt of the superior courts
exists in England since time immemorial. The High Courts in India
exercised similar powers as Courts of Record under their Letters
Patent4. The Letters Patent constituting the High Court of Judicature at
Lahore for the Provinces of the Punjab and Delhi dated 21-3-1919
ordained it to be a Court of Record. By way of the High Court of West
Pakistan (Establishment) Order, 1955 the High Court of Judicature for
the Province of West Pakistan was established and the High Court of
Judicature at Lahore, the Chief Court of Sindh, the Judicial
Commissioner, Court in the North-West Frontier Province and
Balochistan ceased to exist. Section 9 of the High Court of West
Pakistan (Establishment) Order, 1955 applied the Letters Patent
constituting the High Court of Judicature at Lahore for the Provinces of
the Punjab and Delhi dated 21-3-1919 to the High Court of Judicature
for the Province of West Pakistan. In 1970 three new High Courts i.e.
Peshawar High Court, Lahore High Court, Sindh and Balochistan High
Courts were established by way of the High Court (Establishment)
Order, 1970. Under Section 3(2) each new High Court was ordained to be a Court of Record with such power and authority as the High Court
of West Pakistan. Thereafter in 1976 by way of the Balochistan and
Sindh High Court (Order) 1976 two new High Courts i.e. the High Court
of Balochistan and the High Court of Sind were established and each
such new High Court was conferred such powers and authority as the
High Courts of Sindh and Balochistan. In a nutshell, the power of the
High Court to punish for contempt is an inherent jurisdiction and
irrespective of whether such power conferred by the Constitution,
1973 constituted a fresh power or continuation of an existing power
the jurisdiction is a special one, which as such is excluded from the
purview of the Cr.P.C., as per Section 1(2) thereof.
38. On the other hand, the ECP does not have any inherent or
Constitutional power to punish for contempt. It derives its power to
punish for contempt from Section 10 of the Elections Act, which is
reproduced herein below:-
10. Power to punish for contempt. The Commission may exercise the
same power as the High Court to punish any person for
contempt of court and the Contempt of Court Ordinance, 2003 (V
of 2003), or any other law pertaining to contempt of court shall
have effect accordingly as if reference therein to a court and to a
judge were a reference, respectively, to the Commission and the
Commissioner or, as the case may be, a member of the
Commission. [Emphasis added]
39. Subsection (37) of Section 3 of the General Clauses Act, 1897 as
well as subsection (o) of Section 4 of the Cr.P.C., define the word
offence to mean any act or omission made punishable by any law for
the time being in force . The Full Bench of the Allahabad High Court in
State v. Oadna Jabt Mulviya and another, AIR 1954 ALL 523 was
confronted with the question whether contempt punishable by the
High Court is an offence within the meaning of Section 5(2) of the Code
of Criminal Procedure. The Court acknowledged that the power to
punish contempt is an inherent power of the High Court as well as a
Constitutional power and that it was not created by the Contempt of
Court Act, 1926. The Court considered the word law as used in the
definition of offence provided for in the General Clauses Act and held
that contempt would not be an offence unless made punishable by any
law passed by a competent legislature or in other words by statute.
Thus it was held that contempt of court is not an offence within the
meaning of Section 5(2) of the Code of Criminal Procedure which deals
with offences created by enacted law. On the other hand, in the case
before me, contempt is punishable by ECP under the Elections Act. As
such, contempt is an offence
5 within the meaning of the term as given
in the General Clauses Act, 1897 and the Cr.P.C. 40. Subsection (2) of Section 1, Cr.P.C., essentially provides that the
Cr.P.C. extends to the whole of Pakistan but in the absence of any
specific provision to the contrary nothing contained therein shall
affect any special or local law now in force, or any special jurisdiction
or power conferred, or any special form of procedure prescribed, by
any other law for the time being in force
6 [emphasis added].
Furthermore, subsection (2) of Section 5 of the Cr.P.C. provides that all
offences under any other law (other than the P.P.C) shall be
investigated inquired into, tried, and otherwise dealt with according to
the provisions contained in the Cr.P.C., but subject to any enactment
for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such
offences [emphasis added].
41. Even if the Elections Act were to be regarded as a special law, it
would not automatically take the enactment out of the scope of Cr.P.C.
The Cr.P.C. would not affect a special law or special jurisdiction or a
special form of procedure provided under a law for the time being in
force only in the absence of any specific provision to the contrary in
such law. Whereas, the Elections Act contains Section 199 which
provides as follows:
199. Provisions of the Code to apply. In the matters relating to
reporting, investigation, summons, warrants, enquiry, trial of an
offence or other ancillary matters where any provision or any
sufficient provision does not exist in this Act or the Rules, the
provisions of the Code shall apply in the matter. [Emphasis
added]
The term Code has been defined to mean the Cr.P.C. under Section
2(viii) of the Elections Act. Thus, the Elections Act is a law that contains
a specific provision expressly making the Cr.P.C. applicable upon the
stipulated matters to the extent provided thereby bringing it within
the fold of the Cr.P.C., to such extent.
42. The learned counsel for ECP argued that trial of an offence does
not refer to contempt proceedings and it refers to other offences
provided for under the Elections Act. However, no cogent reason was
given in support thereof. Examination of the Elections Act reveals that
Chapter X provides the Offences, Penalties and Procedures. Sections 167
to 189 of the Elections Act relate to various offences and its penalties.
Section 190 provides that an offence under Chapter X shall be tried by
the Sessions Judge subject to Section 193 which provides for certain
offences punishable under Section 174 to be tried by authorized officers.
In addition, Section 192 provides for certain offences under the P.P.C to
be tried by the Registration Officer. Thus Chapter X contains not only offences under the Elections Act but also refers to offences under the
P.P.C.
43. Section 198 provides that punishment imposed for an offence
under this Chapter i.e. Chapter X is in addition to any liability incurred
under any other provision of the Elections Act. The use of the words an
offence under this Chapter in Sections 190 and 198 indicates that there
may be offences provided for under other chapters of the Elections
Act. Had there been no offence provided for under any other chapter
of the Elections Act the Legislature would have simply stated offences
under the Elections Act in order to distinguish them from the offences
under the P.P.C covered by Chapter X. Yet perusal of the provisions of
the other chapters of the Elections Act does not reveal any offence
other that the offence of contempt in Section 10.
44. On the other hand, the words under this chapter are
conspicuously missing from Section 199. Thus by virtue of Section 199
of the Elections Act read with Sections 1(2) and 5(2), Cr.P.C., in my
opinion, the provisions of Cr.P.C., shall apply to the reporting,
investigation, summons, warrants, enquiry, or trial of the offence of
contempt conducted by the ECP to the extent that no provision or
sufficient provision exists for such matter in the Elections Act and the
Rules.
45. The learned counsel for the ECP argued that by virtue of Section
3 of the Elections Act, the ECP is empowered to regulate its own
procedure in the performance of its functions and duties and exercise
of its powers. The Elections Act does not contain any provision
pertaining to the venue for holding contempt proceedings. Therefore,
she argued that the ECP was not bound to hold the contempt
proceedings at its own premises and could hold such proceedings in
Jail.
46. First of all it may be noted that Section 3 of the Elections Act is
couched in general terms that the ECP shall regulate its own procedure
in inter alia the exercise of its powers whereas Section 199 thereof
specifically provides that the provisions of Cr.P.C. shall apply to inter
alia the trial of an offence conducted by the ECP to the extent that no
provision or sufficient provision exists for such matter in the Elections
Act and the Rules. It is trite law that specific provisions contained in a
statute on the same subject prevail over the general provisions7.
47. Even otherwise, the application of Section 352, Cr.P.C., does not
in any way conflict with the ECP s right to regulate its own procedure
under Section 3 of the Elections Act. Section 352, Cr.P.C., simply
provides that the place in which any criminal court is held for inter
alia trying any offence shall be deemed an open Court to which the public generally may have access to so far as the same can
conveniently contain them. Thus the effect of Section 352, Cr.P.C.,
would simply be that the place in which the ECP holds the trial of the
offence of contempt shall be deemed an open Court to which the
public generally may have access to so far as the same can
conveniently contain them.
Application of Article 10-A of the Constitution upon contempt
proceedings conducted by the ECP:
48. A public trial is even otherwise a requirement of a fair trial
pursuant to Article 10-A of the Constitution. It has been held by this
Court in Saleem Ahmed Jan v. Deputy Commissioner, Islamabad and 6
others, 2024 CLC 953 that the power to punish contempt results in a
conviction and a citizen can only be convicted through the exercise of
judicial power and that such power is to be exercised in accordance
with Article 10-A of the Constitution. Thus, the ECP is bound to
exercise its power to punish contempt under Section 10 of the
Elections Act in accordance with Article 10-A of the Constitution.
Public hearing an ingredient of a fair trial:
49. In her additional note to the judgment passed in Jawwad S.
Khawaja and others v. Federation of Pakistan and others, PLD 2024 SC
337, Justice Ayesha Malik has observed that a public hearing is one of
the basic ingredients for a fair trial in light of Article 10-A of the
Constitution. This Court in Imran Ahmed Khan Niazi v. Federation of
Pakistan and others, PLD 2024 Islamabad 155 has held that the
insertion of 10-A in the Constitution through the Constitution
(Eighteenth Amendment) Act, 2010 has elevated an accused s right to
be tried in an open court in the usual court premises to a fundamental
right and that an open trial is an integral component for a fair trial.
The importance of an open and public trial has been explained in the
said judgment as follows:
72. The virtues of an open trial cannot be emphasized enough. The
open court principle is a hallmark of democratic society and
applies to all judicial proceedings.
19 This principle has long been
recognized as a cornerstone of the common law. Public access to
the Courts guarantees the integrity of judicial process by
demonstrating that justice a non-arbitrary manner, according to
the rule of law.
20 Openness is necessary to maintain the
independence and impartiality of the Courts. It is integral to
public confidence in the justice system and the public's
understanding of the administration of justice. Moreover,
openness is a principal component of the legitimacy of the
judicial process and why the parties and the public at large abide by decisions of the Courts.
21
In Scott v. Scott
22
, Viscount
Haldane held that the right of public access to the Courts is one
principle turning not on convenience but on necessity. In the
same case, Lord Shaw held that [i]n the darkness of secrecy,
sinister interest and evil in every shape have full swing. Only in
proportion as publicity has place can any of the checks
applicable to judicial injustice operate. Where there is no
publicity there is no justice". Lord Atkin in Ambard v. Attorney-
General of Trinidad and Tobago
23
, speaking for the Privy
Council, held that "justice is not a cloistered virtue". In Cora
Lillian McPherson v. Oran Leo McPherson
24
, it was observed
that publicity is the authentic hallmark of judicial procedure
and the Court must be open to any who may present themselves
for admission. In Estes v. Texas
25
, it was held that publicity
serves to advance several of the particular purposes of the trial
and, indeed, the judicial process. Open trials play a fundamental
role in furthering the efforts of our judicial system to assure the
criminal defendant a fair and accurate adjudication of guilt or
innocence. In Craig v. Harney
26
, it was held that a trial is a
public event and what transpires in the courtroom is public
property. In Sherman Estate v. Donovan
27
, the Supreme Court of
Canada held as follows:-
"Court proceedings are presumptively open to the public. Court
openness is protected by the constitutional guarantee of freedom
of expression and is essential to the proper functioning of
Canadian democracy. Reporting on court proceedings by a free
press is often said to be inseparable from the principle of open
justice. The open court principle is engaged by all judicial
proceedings, whatever their nature. Matters in a probate file are
not quintessentially private or fundamentally administrative.
Obtaining a certificate of appointment of estate trustee in
Ontario is a court proceeding engaging the fundamental
rationale for openness -- discouraging mischief and ensuring
confidence in the administration of justice through transparency
-- such that the strong presumption of openness applies".
[Emphasis added]
50. The Universal Declaration of Human Rights (UDHR) in Article 10;
the International Covenant on Civil and Political Rights ratified by
Pakistan on 23-6-2010 in Article 14; and the European Convention on
Human Rights in Article 6 titled, right to a fair trial provide that all
persons are entitled to a fair and public hearing by an independent
and impartial tribunal, in the determination of their [civil] rights and
obligations and of any criminal charge against them. 51. Thus the discretion of the ECP, if any, to choose the venue for
holding of contempt proceedings cannot be exercised in a manner that
deprives the accused of his Constitutionally guaranteed right to a fair
trial under Article 10-A of the Constitution. After all, it has been
acknowledged in Imran Ahmed Khan Niazi (Supra) that even Section
352, Cr.P.C. and Rule 3 of the LHC Rules give discretion to the
Magistrate as regards the place where a trial or inquiry is to be held
and there is nothing in Cr.P.C. to compel a Magistrate to hold his Court
in the usual Court premises. But the discretion to direct any particular
case to be tried in jail is to be exercised sparingly and with caution.
The judgment explains that Such discretion is not unfettered and
cannot be exercised arbitrarily. Exercise of discretion is always guided
by the circumstances of the case including the conduct of the parties.
An order for a jail trial ought to be passed in exceptional cases after
formation of the view based on tangible material that the holding of
the trial outside jail may disrupt public order or internal security due
to a surcharged atmosphere as to spoil and vitiate the requirements of
a calm, detached and fair trial.
52. Examination of the Impugned Orders does not reveal reference
to any exceptional circumstances or to any material which would
indicate that the holding of the contempt proceedings against the
Petitioner in Adyala jail may impact public order or internal security
or would vitiate the requirements of a calm, detached and fair trial.
The only reason given for the ECP to call for the contempt proceedings
against the Petitioner to be conducted in Adyala Jail is because of the
contempt proceedings that were being held against Mr. Imran Khan in
jail. Mr. Imran Khan is not a co-accused in the SCNs issued to the
Petitioner nor is the Petitioner a co-accused in the show cause notices
issued to Mr. Imran Khan for contempt. Admittedly, the alleged
contemptuous conduct of the Petitioner and that of Mr. Imran Khan
was on different dates and at different occasions. The learned counsel
for ECP was unable to show how the fact that the Petitioner and Mr.
Imran Khan were part of the same political party at the time of the
alleged contempt by both necessitated the holding of contempt
proceedings at the same venue especially at the cost of the Petitioner s
Constitutional rights. As held in Imran Ahmed Khan Niazi (Supra) the
considerations which ought to weigh in with the trial court in ordering
to hold a sitting in jail are considerations of interest of justice,
expeditious hearing of trial and a requirement of a fair and open trial
which should be apparent in the judicial order passed for holding the
trial in jail. Whereas, the reason given by ECP in the Impugned Orders
for conducting the contempt proceedings against the Petitioner are
neither in the interest of justice nor expeditious hearing or for the requirement of a fair and open trial. In fact, the reason given is
entirely extraneous to the Petitioner s case.
53. This Court in Imran Ahmed Khan Niazi (Supra) also
acknowledged that a trial conducted in jail can also be an open trial as
members of the public can be permitted to witness the proceedings
subject to security measures under the relevant prison rules. The
judgment in Imran Ahmed Khan Niazi (Supra) specifically notes that a
trial open to public would include not just the appellants friends and
relatives but also the representatives of the media and since that was
not done it was held that the proceedings or trial conducted thus far
were not just prejudicial to the rights of the appellants but invalid and
therefore stood vitiated. In the present case, the Impugned Order II
only allow the Petitioner s legal team, mother, and wife to attend the
contempt proceedings to be conducted at Adyala Jail but do not
provide for allowing attendance of the contempt proceedings in jail by
members of the public or media representatives.
54. In fact, the learned counsel for ECP argued that the proceedings
held in the ECP premises are also not public though she conceded that
journalists are free to attend such proceedings whereas, neither
journalists nor members of the general public were allowed to attend
the contempt proceedings held by the ECP at Adyala Jail against the
Petitioner thus far. The ECP cannot exercise the powers conferred
upon a High Court and at the same time act in contravention of the
requirements imposed upon a High Court while exercising such
powers. I will refrain from going into the vires of Section 10 of the
Elections Act as it is not under challenge before this Court. Whether
Section 10 of the Elections Act is ultra vires or not is yet to be decided.
However, as long as it remains on the statute books and the ECP
exercises the powers conferred upon it thereunder it must do so
strictly in accordance with Article 10-A of the Constitution, which
includes holding of a public trial which requirement is not fulfilled
just by allowing the Petitioner s lawyers and close family members to
attend the proceedings..
55. To sum up, the Petitioner is entitled to a fair trial under Article
10-A of the Constitution, which inter alia, entails a public hearing. The
Impugned Orders deprive the Petitioner of his Constitutional right to a
fair trial by calling a jail trial of the alleged contempt against him
without cogent reason and without ensuring that the jail trial is
nevertheless an open trial and as such are ultra vires the Constitution
and illegal. Given that the basic order i.e. the Impugned Orders have
been found without lawful authority, the superstructure built upon it
i.e. Impugned Notifications must also fall to the ground8 56. In view of the foregoing, the instant Petitions are allowed and
the Impugned Orders dated 30.11.2023 and 12.12.2023 and
Notifications dated 8.12.2023 and 20.12.2023 are hereby set aside as
being without lawful authority. Consequently, the contempt
proceedings/trial conducted in Adyala Jail against the Petitioner which
did not constitute an open trial stand vitiated for being in violation of
Article 10-A of the Constitution.
MH/199/Isl. Petitions allowed.
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