ISLAMABAD - The Supreme Court on Monday dismissed the intra-court appeal (ICA) of Defence Secretary Lt-Gen (r) Asif Yasin Malik with the direction to raise before the trial court the objections that were argued before the appellate bench.

A five-member bench, headed by Justice Nasirul Mulk, said: “We will not like to comment on the objections raised before this court as the defence secretary still has an opportunity to raise them before the trial court, so the ICA is dismissed.”

A three-member bench, headed by Chief Justice Iftikhar Muhammad Chaudhry, on October 25 indicted the defence secretary for non-compliance of its order despite giving undertakings twice to hold local government elections in the cantonment boards. The defence secretary filed an ICA against the order.

Iftikhar Gilani, counsel for Asif Yasin, defending the incumbent secretary before the five-judge bench, argued it was a question of law as Article 4 (2)(c) of the Constitution says: “No person shall be compelled to do that which the law does not require him to do.” He said it was beyond the powers of the secretary to hold elections, adding his client’s apology should have been accepted.

Justice Nasirul Mulk said: “In a contempt matter apology is accepted when the respondent, after the issuance of notice, comes to the court and gives an assurance for the implementation of its orders, but in the instant case the secretary has only regretted.”

The contempt charges were framed against the incumbent defence secretary under Section 2(b) of Contempt of Court Ordinance 2003 read with Section 3 of Article 204 of the Constitution.

Iftikhar Gilani contended that he had given the commitment on behalf of the executive. Justice Nasir questioned whether the secretary was not an executive. Gilani replied that under the rules of business the competent authority is the prime minister. He further said the attorney general had argued on behalf of the federation and on his advice the secretary had given the undertaking.

Justice Nasir questioned whether the secretary was unaware of the consequences of not fulfilling the commitment while the language of the undertaking was simple. The notice was given to the secretary and he could defend the case in the preliminary hearing, but he did not do so, he added.

Justice Ijaz Ahmed Chaudhry, another member of the bench, asked the learned counsel to argue before the trial court instead of raising the objections before this bench.

Iftikhar Gilani requested the court to set aside the order of the three-member bench. Justice Nasir said: “Do you want us to quash the entire proceedings?” Gilani said the charges should not have been framed in the first place.

Additional Attorney General Shah Khawar, prosecutor in the case, said the appellant missed the opportunity to raise the objections and produce the documents in the trial court. Justice Ijaz said the order was dictated in his presence.