20000119

Maintainability of appeal

Rowdyism at SC: defendants complete arguments

MEHMUD AHMED

ISLAMABAD: The lawyers of the Pakistan Muslim League (PML) and the party legislators, accused of storming and rowdyism at the Supreme Court in November 1997, on Tuesday completed their arguments against the maintainability of appeal against the acquittal order made by a full bench last year.

The petitioner, Shahid Orakzai, an out of job journalist had started his rebuttal before the full court of 11 judges when the bench rose for the day. It will resume the hearing on Wednesday morning when Law Minister Aziz Munshi is also to address.

Presided over by Chief Justice Saeeduzaman Siddiqui, the full court comprises Justices Irshad Hassan Khan, Mohammad Bashir Jehangiri, Khalil-ur-Rahman Khan, Sheikh Ijaz Nisar, Mamoon A Kazi, Sheikh Riaz Ahmed, Chaudhary Mohammad Arif, Muneer A Sheikh, Wajihuddin Ahmed and Kamal Mansur Alam.

Continuing his overnight arguments, the counsel for Pakistan Muslim League President Nawaz Sharif said that the present petition, which had been converted into an appeal, was in fact an intra-court appeal against a decision by the Supreme Court's own bench and was not backed by a precedent.

He said since the trial of the accused was conducted by a full bench of the Supreme Court, therefore if the persons arraigned before the judges were convicted now there will be no avenue to seek a re-appraisal in the shape of a review or an appeal.

Chief Justice Siddiqui agreed that there was no precedent of such a nature available but explained that the right for an appeal has been provided in the amendments made by the Nawaz Sharif administration to the Contempt of Court Act of 1976.

Justice Munir A Sheikh told the counsel that the amendments had gone beyond bestowing a right of "intra-court appeal" to the accused as now they could even challenge the notice issued by the Court and thus get initial proceedings suspended.

Mohammad Ali Sayeed said that in case the 11 judges of the Supreme Court (that is the current size of the full court, which excludes Justices Zahid and A R Khan who had held the original trial) convict the accused then there is no avenue left for them to seek a review or appeal against.

He repeated his earlier argument that persons not directed affected by the contempt proceedings or court orders were not eligible to re-agitate the issue.

Justice Mamoon A Kazi intervened here to say that the acquittal order by a bench of the Supreme Court had affected every citizen as the way the case was disposed off was without a precedence anywhere.

He said the acquittal decision had an adverse reaction and people demanded the persons responsible for rowdyism to be punished. Hence, any citizen in this particular situation had the right to approach the Supreme Court, he added.

Continuing, Mohammad Ali Sayeed said that nobody committed contempt as "no one entered the court room except one journalist who said a group was heading towards the Chief Justice's court room".

Justice Kazi contradicted him saying that it was a unique type of incident where some people had attacked the Supreme Court.

At this stage senior puisne judge, Justice Irshad Hassan Khan intervened directing the counsel to confine his arguments if the law permitted an outsider to file an appeal against the decisions of the court.

Justice Chaudhary Mohammad Arif reminded the counsel that

Sub-section 2 (a) of Section 10 of the amended Contempt of Court of Act allow any person as well as the direct parties, to appeal against the decisions of the court.

Justice Arif said the five-member bench of the Supreme Court, which heard Shahid Orakzai's request for review of the acquittal order did not admit it as such but converted it into an appeal.

Sayeed said the five-member bench could not have done the conversion of his review petition, as Orakzai was not competent to agitate the matter.

Counsel for persons accused Sardar Mohammad Ishaq and Mohammad Nawaz also addressed the court on the same lines.