A division bench of IHC comprising Justice Tariq Mehmood Jahangiri and Justice Babar Sattar issued pre-admission notices AGP, Advocate General Islamabad and other respondents.
The bench also directed the counsel for Rana Shamim, the AGP, AG Islamabad and the counsel for the respondents to assist the court on the point of maintainability of the instant ICA against the interlocutory order and deferred the hearing till second week of June.
Shamim moved the ICA assailing an IHC single bench’s January 20 decision of indicting him in the contempt case and made journalist Ansar Abbasi and others as respondents.
He adopted that the IHC single bench framed the charges only against him while letting those who published his affidavit off the hook, which is illegal. He requested the court to set aside his indictment and quash the case.
During the hearing, his counsel contends that the appellant has sworn an affidavit, kept the same in safe custody/ locker of his grandson and has not given to any person for publication in the newspaper, whereas, respondents No.4 to 6 have admitted that they have published the affidavit executed by the appellant in the newspaper but they have not disclosed the source, who has provided them the copy of affidavit.
He added that the appellant has not committed any act of contempt of court as the affidavit was not given by the appellant to anyone rather respondents No.4 to 6 have allegedly committed contempt of court as they have admitted in their reply that they have published the same in the newspaper but the learned single bench vide the impugned order has framed the charge upon the appellant and exonerated respondents No.4 to 6.
He adopted the stance that the single bench maintained in the open court that these proceedings are not contempt proceedings but they should be considered as an inquiry, while passing the impugned order instead of carrying out the proceedings as an inquiry, framed charge only against the appellant, the appellant has categorically denied giving the affidavit to any individual.
The counsel said, “There is no evidence on record which demonstrates the involvement of the appellant in leakage of the affidavit, hence the decision for framing of charge only against the appellant and not against the co-accused, who have admitted publication of affidavit is illegal, unlawful, against the law and liable to be set-aside.”
The IHC bench said in its written order that points raised, need consideration and let pre-admission notice be issued to the AGP, AG Islamabad and respondents No.4 to 6.
In the ICA, Rana Shamim stated that whether it is just and fair the Appellant has been charged whereas respondent No. 4 to 6 who has admitted to publication has been discharged of the contempt proceedings?
He added that whether in the light of the judgment reported in PLD 2012 SC 553 contempt proceeding no. 309/21 is liable to be quashed or kept in sine die till the final decision in the instant constitution petition.
Rana further said that whether the appellant has committed any contempt under Article 204 (2) of the Constitution of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance, 2003 (Ordinance V of 2003) punishable under section 5 of the said ordinance?
He also asked that whether the continuance of the proceedings before the single judge would be futile exercise, waste of court’s time and abuse of process of court and whether the justice could be done in this case without forming a judicial commission to unearth the truth or the veracity of the facts?
The former GB judge said that admittedly the contents of the affidavit were published by Abbasi in his news report. “Had the contents not been published no alleged contempt would have been committed,” he added.
He adopted that mere writing of the affidavit is not contempt. He continued that writing of the affidavit without publishing it is akin to mere thoughts of the appellant. “No one can be convicted for merely having certain thoughts,” he maintained.
The former GB judge argued that the impugned order dated 20-01-2022 is bad in law and the whole contempt proceedings are liable to be quashed. He continued that the principle of right to fair trial has been acknowledged and recognised by our courts since long and is by now well-entrenched.
Therefore, he prayed to the court that it may graciously accept the instant appeal and quash the proceedings in Criminal Original No. 309/2021 pending adjudication at IHC being without lawful authority, without jurisdiction, Coram-non-Judice and of no legal effect.
He also requested the court that the order dated 20-1-2022 is unlawful and against right of the appellant guaranteed by the Constitution.