IN THE SUPREME COURT OF PAKISTAN 
(ORIGINAL JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE ASIF SAEED KHAN KHOSA 
 
 
MR. JUSTICE EJAZ AFZAL KHAN 
 
 
MR. JUSTICE GULZAR AHMED 
 
 
MR. JUSTICE MUSHIR ALAM 
 
 
MR. JUSTICE FAISAL ARAB 
 
 
MR. JUSTICE IJAZ UL AHSAN 
 
 
CONSTITUTION PETITIONS NO.1, 2 AND 10 OF 2016 
(Petitions under Article 184(3) of the Constitution, 1973) 
 
 
 
1. 
Syed Shabbar Razi Rizvi and another 
Vs. Federation of Pakistan, Ministry of 
Law and Justice Division, through its 
Secretary, Islamabad and another 
 
In Const.P.1/2016 
2. 
Syed Shabbar Razi Rizvi and another 
Vs. Federation of Pakistan, Ministry of 
Law and Justice Division, through its 
Secretary, Islamabad and others 
 
In Const.P.2/2016 
3. 
Syed 
Sajjad 
Hussain 
Shah 
Vs. 
Federation of Pakistan, Ministry of Law 
and Justice Division, through its 
Secretary and others 
 
In Const.P.10/2016 
 
For the petitioner(s): 
Mr. Ali Sibtain Fazli, ASC 
Petitioners in person 
Ch. Akhtar Ali, AOR 
(In Const.Ps.1 & 2/2016) 
 
Sh. Zamir Hussain, ASC 
Syed Rifaqat Hussain Shah, AOR 
(In Const.P.10/2016) 
 
 
For the respondent(s): 
Not represented 
(In all cases) 
 
 
Date of hearing: 
5.1.2018 
 
JUDGMENT 
 
 
 
MIAN SAQIB NISAR, CJ.- These petitions under Article 
184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 
(the Constitution) have been filed by the former Judges of the Lahore High 
Court with the prayer, inter alia, that the judgment reported as Sindh 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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High Court Bar Association through its Secretary and another Vs. 
Federation of Pakistan through Secretary, Ministry of Law and 
Justice, Islamabad and others (PLD 2009 SC 879), may be declared 
per incuriam and of no legal effect to the extent of removal of 
petitioners/Judges and the subsequent judgment reported as Justice 
Hasnat Ahmed Khan Vs. Federation of Pakistan (PLD 2011 SC 
680) may also be revisited, reviewed and set aside, and the judgments 
reported as Proceedings Against: Justices (R) Iftikhar Hussain 
Chaudhry, etc. (PLD 2011 SC 197) and Justice Abdul Hameed 
Dogar, 
Former 
Judge/CJP 
and 
others 
Vs. 
Federation 
of 
Pakistan/State (PLD 2011 SC 315) may be declared per incuriam 
and of no legal effect.  
2. 
 
The brief background of the case is that on 3rd 
November, 2007 the then President of Pakistan, in his capacity as 
the Chief of Army Staff whilst declaring an emergency put the 
Constitution in abeyance and issued the Provisional Constitution 
Order No.1 of 2007 (PCO, 2007) followed by the Oath of Office (Judges) 
Order, 2007 (Oath Order, 2007), making most of the Judges of the 
superior judiciary dysfunctional. On that fateful day i.e. 3rd 
November, 2007, a 7-Member Bench of this Court, in the case of 
Wajihuddin Ahmed v. Chief Election Commissioner (PLD 2008 SC 
25) passed an order, inter alia, restraining the Judges of the 
superior Courts from taking oath under the PCO, 2007 or any other 
unconstitutional instrument. The petitioners (former Judges of the Lahore 
High Court), having taken oath under the Oath Order, 2007, continued 
to perform duties/act as Judges of the Lahore High Court. But on 
account of the decision of this Court rendered by a 14-Member Bench 
on 31st July, 2009 reported as Sindh High Court Bar Association’s 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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case (supra), the petitioners, along with other Judges of the superior 
Courts who had taken oath under the Oath Order, 2007, were 
declared to have violated the above said restraint order and notices for 
contempt of Court under Article 204 of the Constitution read with 
relevant provisions of the Contempt of Court laws were issued to 
them, therefore, they (the Judges) ultimately had to resign from their 
offices as the Judges of the High Court. Being aggrieved of the 
judgment in Sindh High Court Bar Association’s case (supra), the 
petitioners as well as other Judges moved review petitions before this 
Court against the said judgment. Office objections were raised in 
respect of the said review petitions and the same were returned. The 
petitioners, as also the other Judges, filed Civil Misc. Applications 
(C.M.A. No.2750/2009 in C.R.P. No.Nil of 2009 in Const.P.No.8 of 2009 by Mr. Justice 
Syed Shabbar Raza Rizvi, CMA No.2747/2009 in C.R.P. No.Nil of 2009 in Const.P.No.8 of 
2009 by Mr. Justice Hasnat Ahmed Khan and C.M.As. No.2776 & 2782 of 2009 in C.R.P. 
No.Nil of 2009 in Const.P.No.8 of 2009 by Mr. Justice Syed Sajjad Hussain Shah)for 
permission to file review petitions against the said judgment. 
However, the applications were dismissed by a 14-Member bench of 
this Court, with a majority of 13 to 1, through judgment reported as 
Justice Khurshid Anwar Bhinder and others Vs. Federation of 
Pakistan and another (PLD 2010 SC 483). However, the notices for 
contempt of Court issued to the Judges who had expressed regrets 
and repentance and either retired or tendered resignations were 
discharged; whereas the Judges, who were contesting notices and 
neither tendered resignations nor filed replies, or had not filed 
replies and/or had prayed for grant of time were directed to be 
proceeded against. In light of the said judgment, contempt 
proceedings were initiated against the Judges, including the 
petitioners. The petitioners contested the notices and vide judgment 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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reported as Justices (R) Iftikhar Hussain Chaudhry’s case (supra) it 
was held that the petitioners (respondents therein), despite being Judges of 
the superior Courts, were not immune from proceedings under Article 
204 and the Contempt of Court law as far as committing contempt of 
this Court. It was directed that the cases be fixed for framing of 
charge(s) against the aforesaid respondents on 21.2.2011. The said 
judgment was challenged by the petitioners and others through Intra 
Court Appeals before a larger Bench of this Court. By means of 
judgment reported as Justice Abdul Hameed Dogar’s case (supra) the 
appeals filed by Justice (R) Abdul Hameed Dogar (I.C.A. No.9 of 2011) and 
Justice (R) Sayed Zahid Hussain (I.C.A. No.10 of 2011), on showing regret, 
were allowed and the proceedings for contempt of Court to their 
extent were terminated. However, the counsels of the other Judges 
against whom contempt proceedings were pending, were allowed two 
weeks’ time to take instructions from them (appellants therein) in view of 
the orders/observations made. The remaining appeals were then 
disposed of vide judgment reported as Justice Hasnat Ahmed 
Khan’s case (supra) wherein it was declared that the petitioners and 
other Judges (appellants therein) had ceased to be the Judges of the High 
Courts, therefore, they could not claim immunity from trial for 
contempt of Court under Article 204 of the Constitution read with 
relevant laws. After availing all the constitutional remedies, the 
petitioners remained silent till the year 2016 and ultimately filed the 
present petitions challenging the validity of the judgment in Sindh 
High Court Bar Association’s case (supra) and other subsequent 
judgments, primarily on the ground that the said judgments are per 
incuriam.  
Constitution Petitions No.1, 2 and 10 of 2016  
 
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3. 
 
In the following background, Mr. Ali Sibtain Fazli, learned 
counsel for the petitioners (in Constitution Petitions No.1 & 2/2016) referred to 
the judgment in Sindh High Court Bar Association’s case (supra) and 
his opening salvo is that the petitioners were condemned unheard in 
the matter; besides, notwithstanding the fact that they had taken oath 
under the Oath Order, 2007, when the PCO, 2007 as well as Oath 
Order, 2007 were declared to be unconstitutional and void ab initio, 
they remained and continued to be the judges of the High Court 
under the Constitution, and the passing of Eighteenth Constitutional 
Amendment, whereby the PCO, 2007 as well as other instruments 
issued thereunder were not validated, had no effect upon their 
position as Judges of the High Court; therefore, the judgment cannot 
affect their right to be the Judges. Sh. Zamir Hussain, learned 
counsel for the petitioner (in Constitution Petition No.10/2016) has raised an 
additional argument that the judgment in Sindh High Court Bar 
Association’s case (supra) was objective as far as others are concerned 
but subjective with regard to the Judges of the superior Courts, 
therefore, the Judges should not have been condemned unheard. 
According to him, the said judgment was a bold step and played a 
positive role in the socio-political history of the Country, which (aspect) 
has to be appreciated, but at the same time the positivity should not 
be used against the petitioners. In a nutshell the case of the 
petitioners is that it is the cardinal principle of natural justice that no 
one should be condemned unheard, but the petitioners were denied 
the said right; inasmuch as notices were issued to General (R) Pervez 
Musharraf, as is evident from para 145 of the judgment in Sindh 
High Court Bar Association’s case (supra) but no such notice was 
issued to the petitioners. Further, this Court has unlimited 
jurisdiction to reopen, revisit or review any judgment earlier 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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pronounced to set the law correct, to cure injustice and to save abuse 
of process of law, especially when the judgment is per incuriam. 
Reliance in this behalf has been placed on the judgments reported as 
Sindh High Court Bar Association’s case (supra) and In Re.: Matter 
Regarding Pensionary Benefits of the Judges of Superior Courts 
(PLD 2013 SC 829). The judges of the superior Court can only be 
removed under Article 209 of the Constitution, which fact has been 
pointed out in the judgments in Sindh High Court Bar Association’s 
case (supra) as well as Justice Khurshid Anwar Bhinder’s case (supra) 
but despite that through the judgment reported as Justice Hasnat 
Ahmed Khan’s case (supra) the petitioners were removed from their 
office by declaring them to have ceased to be Judges simply because 
they took oath under the PCO/Oath Order, 2007, which is a violation 
of Article 209 of the Constitution. It was further argued that it is a 
universal law and practice that the judges of superior Courts are 
never tried under the Contempt of Court laws. Reliance in this regard 
has been placed on the cases reported as Mujibur Rahman Shami 
 Vs. A Judge of the High Court (PLD 1973 Lah. 805), K.L. Gauba 
ah 42 Vs. The Hon’ble the Chief Justice and Judges of the High 
Court of Judicature at Lahore & anr. (AIR 1942 FC 1), States of 
Rajasthan Vs.Prakash Chand & ors. (AIR 1998 SC 1344), 
Rachapudi Subba Rao Vs. The Advocate General, Andhra Pradesh 
(AIR 1981 SC 755) = (1991 Cri. Law J. 613) and Shri Harish 
Chandra Mishra and anr. Vs. The Hon’ble Mr. Justice S. Ali  
Ahmed (AIR 1986 Pat. 65).   
4. 
 
First of all let us consider the question of issuance of 
notice to the Judges of the superior Courts in terms of the principles 
of audi alteram partem and natural justice. The question of issuance 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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of notices to the Judges was considered by the full Bench of this 
Court in Sindh High Court Bar Association’s case (supra), when after 
due consideration of facts and case-law, it was decided not to issue 
notice to them, relevant para wherefrom reads as under: -     
“146. However, we did not issue notices to the concerned Judges 
of the Supreme Court and High Courts who made oath in 
violation of the order dated 3rd November, 2007 passed by a 
seven - member Bench of this Court in Wajihuddin Ahmed’s 
case, as also the Judges who were appointed in consultation with 
Abdul Hameed Dogar, J, inter alia, on a consideration of the law 
laid down in Supreme Court Bar Association’s case where this 
Court examined the question of issuance of notice in a somewhat 
similar situation with reference to the law laid down in the cases 
of Al-Jehad Trust and Asad Ali (supra) and Ghulam Hyder 
Lakho v. Federation of Pakistan (PLD 2000 SC 179). It was held 
that the principle of natural justice would not be violated if no 
notices were issued to the concerned Judges. Relevant portion 
from the judgment is reproduced below: - 
“32. This brings us to the next common contention that 
the senior Judges of the Lahore High Court were 
condemned unheard and even in these petitions notices 
have not been issued to them. … …  
  
33. As regards the question of notices we are of the 
considered view that issuance of notices to the concerned 
Judges will do more harm than good. This question was 
considered in the Judges’ case also and it was clearly held 
at page 534 of the judgment that the principle of natural 
justice is not violated if notice is not issued to the 
concerned Judges. The observations in Asad Ali’s case at 
page 327 of the judgment are also relevant which read as 
under: - 
“It must be borne in mind that Judges of superior 
Courts by their tradition, maintain high degree of 
comity amongst themselves. They are not 
expected to go public on their differences over 
any issue. They are also not expected to litigate in 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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Courts like ordinary litigant in case of denial of a 
right connected with their offices. Article VI of 
the Code of Conduct signed by every Judge of the 
superior Courts also enjoins upon them to avoid 
as far as possible any litigation on their behalf or 
on behalf of others. Therefore, in keeping with the 
high tradition of their office and their exalted 
image in the public eye, the Judges of superior 
Courts can only express their disapproval, 
resentment or reservations’ on an issue either in 
their judgment or order if the opportunity so 
arises……….”.”    
 
 
Then the said question as well as the arguments of the petitioners, 
identical to the arguments made in the instant case, were considered 
by another full Bench of this Court in Justice Khurshid Anwar 
Bhinder’s case (supra) as is evident from the following portion of the 
said judgment: -    
“4. Mr. Wasim Sajjad, learned Senior Advocate Supreme 
Court entered appearance on behalf of Mr. Khurshid Anwar 
Bhinder in C.M.A. No.2745 of 2009 and addressed the Court 
at length on the question of maintainability whose prime 
contention remained that no such decision could have been 
given without affording proper opportunity of hearing in 
violation of the well entrenched doctrine of ‘audi alteram 
partem’ and the fundamental rights guaranteed in the 
Constitution coupled with the judicial precedents which ought 
to have been followed but were ignored. In order to 
substantiate his contention it is argued that it is a cardinal 
principle of law that no person should be condemned unheard 
and besides that the principle of audi alteram partem has also 
been jealously guarded by this Court. It is contended that the 
petitioner and all other removed judges were neither 
impleaded as party in the above mentioned Constitutional 
Petitions nor any opportunity of hearing was afforded which 
resulted in serious miscarriage of justice. It is next contended 
that this Court has ample powers as conferred upon it under 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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Article 188 of the Constitution of Islamic Republic of 
Pakistan, 1973 (hereinafter referred to as the Constitution) to 
hear the review petitions and besides that no bar whatsoever 
has been imposed in the provisions enumerated in Order 
XXVI of the Supreme Court Rules, 1980 and even otherwise 
the petitioner may not be knocked out on the basis of sheer 
technicalities in the absence of any restraints imposed by law. 
… It is further argued that in the matter of removal of a Judge 
of a superior Court, Articles 4, 9 and 25 of the Constitution 
would be attracted. … It is next contended that the applicant 
was an aggrieved person within the contemplation of Order 
XXVI, Rule 1 of the Supreme Court Rules 1980, read with 
Order XLVII, Rule 1 of the CPC and had a right to file the 
review petition against the judgment of the Hon’ble Supreme 
Court, which adversely affected him.” 
 
 
Mr. Farooq Amjad Meer, Dr. A. Basit and Sheikh Zamir Hussain 
made further arguments along this theme of lack of notice and took 
various other grounds too. The respective contentions/submissions 
were dealt with in detail and decided as under: -   
“24.  First of all we intend to deal with the prime contention 
of Mr. Wasim Sajjad, learned Senior Advocate Supreme Court 
that in view of the provisions as enumerated in Article 188 of 
the Constitution and Order XXVI of the Supreme Court Rules 
these C.M.As. are maintainable and the applicants cannot be 
knocked out on sheer technicalities which has always been 
considered undesirable. 
30.  
In our view decision once given cannot be reviewed 
subject to certain legal exceptions pursuant to the provisions 
as enumerated in Order XLVII, Rule 1, C.P.C., scope whereof 
can neither be enlarged nor it can be farfetched in such a 
manner as argued by the learned Advocate Supreme Courts for 
the petitioners in view of the language as employed in Order 
XLVII, Rule 1, C.P.C. its application would be only up to that 
limited extent and it cannot be unlimited.  
Constitution Petitions No.1, 2 and 10 of 2016  
 
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35.  
On the touchstone of the criterion as laid down in the 
above mentioned cases we are firmly of the view that allowing 
the review applications would not be in aid of justice and 
besides that the judgment impugned is not in conflict with the 
Constitution or law of the land in any manner and hence no 
lawful justification is available for its review as it has 
protected, preserved and defended the Constitution being 
supreme law of the land. 
42. 
… … The doctrine of ‘audi alteram partem’ is further 
subject to maxim ‘nemo inauditus condemnari debet contumax’. 
Therefore, where a person does not appear at appropriate stage 
before the forum concerned or is found to be otherwise defiant 
the doctrine would have no application. It is also to be kept in 
view that application of said principle has its limitations. 
Where the person against whom an adverse order is made has 
acted illegally and in violation of law for obtaining illegal 
gains and benefits through an order obtained with mala fide 
intention, influence, pressure and ulterior motive then the 
authority would be competent to rescind/withdrawn/ cancel 
such order without affording an opportunity of personal 
hearing to the affected party. … …  It has been elucidated in 
the detailed reasoning of the judgment of 31.7.2009 how the 
order passed by a seven Member Bench of this Court has been 
flagrantly violated. Besides that the applicants had no vested 
right to be heard and furthermore they have acted illegally and 
in violation of the order of seven Member Bench for obtaining 
illegal gains and benefits which cannot be ignored while 
examining the principle of ‘audi alteram partem’. 
44.  
It is also well acknowledged by now that “rules of 
natural justice are principles ingrained into the conscience of men. 
…” …… While natural justice is universally respected, the 
standard vary with situations contacting into a brief, even 
post-decisional opportunity, or expanding into trial-type 
trappings. As it may always be tailored to the situation, 
minimal natural justice, the bares notice, ‘littlest’ opportunity, 
in the shortest time, may serve. In exceptional cases, the 
application of the rules may even be excluded.”  
45. 
The concept of audi alteram partem cannot be invoked in 
view of the peculiar circumstances of the case as it would be 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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an aid to and violation of the Constitution, which can never be 
the object of natural justice. 
55. 
In fact the judgment impugned has been considered in the 
country as well as on global level as a triumph of democratic 
principles and a stinging negation of the dictatorship. It is the 
first instance of the Supreme Court stating in a categoric, loud 
and abundantly clear manner that military interventions are 
illegal and will hardly find any colluder in future within the 
judiciary. The impugned judgment provides much needed redress 
as it will render considerable help in blocking the way of 
adventurers and dictators to creep in easily by taking supra 
Constitutional steps endorsed, supported and upheld under the 
garb of the principle of necessity in the past which will never 
happen again. Had our superior judiciary followed the path of 
non-PCO Judges, the course of Pakistan’s political and judicial 
history would have been different. The verdict has been 
appreciated by all segments of society for being issue oriented 
rather than individual specific and therefore, no individual 
including the petitioners should be aggrieved. The judgment 
impugned would encourage future justices to take the firm stand 
against usurpers. The judgment impugned being in the supreme 
national interest hardly needs any justification for review. …” 
As noted from the above paras, while dismissing the applications of 
the petitioners for filing review petitions, elaborate and extensive 
reasoning was given and in view of the judgment rendered therein, 
which is a judgment in rem, we do not find that the petitioners are 
entitled to be heard again in the instant petition, as far as ordinary 
adversarial litigation is concerned.  
5. 
 
With regard to the submission of the learned counsel for 
the petitioners that the petitioners could not be removed from their 
office except under Article 209 of the Constitution and that the 
contempt notices also could not be issued to them, suffice it to say 
that in Sindh High Court Bar Association’s case (supra) these aspects 
were dilated upon in the following terms: - 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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“122. … Thus, on 3rd November, 2007 certainly it was the first 
time in the history of Pakistan that the judiciary, instead of 
accepting or acquiescing in the situation as per past practice, acted 
boldly and independently and took the most ever needed step, 
which conspicuously lacked in the past. A seven-member Bench of 
this Court, constituted and convened in the evening of the fateful 
day after the issuance of Proclamation of Emergency, PCO No. 1 
of 2007 and Oath Order, 2007, passed the restraint order in 
Wajihuddin Ahmed’s case. This was the most striking distinction 
between the action of 3rd November, 2007 on the one hand  and 
those of 12th October, 1999, 5th July, 1977, 25th March, 1969 and  
7th October, 1958 on the other. In pursuance of the said order, a 
vast majority of the Judges of the superior courts rejected the 
actions of 3rd November, 2007 and did not make oath in pursuance 
with the order dated 3rd November, 2007 passed by a seven - 
member Bench of this Court in Wajihuddin Ahmed’s case. The 
lawyers, members of the civil society, political activists, the print 
and the electronic media personnel and the general public played 
their role for upholding the rule of law and supremacy of the 
Constitution in the country. Abdul Hameed Dogar, J, and some 
other Judges violated the aforesaid order dated 3rd November, 
2007 passed by a seven - member Bench of this Court in 
Wajihuddin Ahmed’s case. These Judges, whether they were in 
this Court or in the High Courts, have all rendered themselves 
liable for consequences under the Constitution for their 
disobedience of the aforesaid order of 3rd November, 2007.          
 
128. … In the first instance, the purported appointment of Abdul 
Hameed Dogar, J, or for that matter the appointments of other 
Judges have already been declared to be unconstitutional, illegal 
and void ab initio. Further, the above recital in the Notification, 
which is a contradiction in terms, stands nullified by the dominant 
intent and spirit of the Notifications, which was the restoration of 
the Chief Justice of Pakistan and other Judges to the position they 
were holding prior to 3rd November, 2007. It was a loud and clear 
recognition of the fact that the Chief Justice of Pakistan and all 
other Judges of the Supreme Court and High Courts continued to 
be such Chief Justice and Judges despite their unconstitutional, 
illegal and forcible removal from office in violation of Article 209 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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of the Constitution and the said position, on the same 
considerations, was reversed in totality. A wrong stood declared 
wrong with no mincing of words, for all times to come.” 
 
 
Ultimately it was held as under: -  
 
“22. As a consequence thereof: - (iv) the Judges of the Supreme 
Court of Pakistan, if any, the Chief Justices of the High Court, if 
any, and the Judges of any of the High Courts, if any, who stood 
appointed to the said offices prior to 3.11.2007 but who made oath 
or took oath of their respective offices in disobedience to the order 
passed by a Seven Member Bench of the Supreme Court of Pakistan 
on 3.11.2007 in C.M.A.No.2869 of 2007 in Constitution Petition 
No.73 of 2007, shall be proceeded against under Article 209 of the 
Constitution. The Secretary of the Law Division of the Government 
of Pakistan shall take steps in the matter accordingly”. 
 
These aspects of the matter were again considered by this Court in 
Justice Hasnat Ahmed Khan’s case (supra) and re-affirmed as under: - 
35. 
Thus, in view of above background it is to be seen whether 
the appellants  are  still  Judges  so  as  to  be  liable to be dealt 
with under Article 209 of the Constitution or had ceased to be 
Judges after they had taken oath on 3.11.2007 under the PCO, 
2007 read with the Oath Order, 2007, which, inter alia, provided 
that a person holding office immediately before the issuance of 
said instruments as a Judge of the Supreme Court, the Federal 
Shariat Court or a High Court would cease to hold office with 
immediate effect, particularly after the passing of the Eighteenth 
Constitutional Amendment whereby no validation was provided 
to the actions of 3.11.2007 because in the past, the Parliament 
had, on each such occasion, granted validation to such actions i.e. 
the extra-constitutional steps of 5.7.1977 were validated by the 
Parliament through the Eighth Constitutional Amendment 
whereas the extra-constitutional steps of 12.10.1999 were 
validated by the Parliament under the 17th Constitutional 
Amendment. 
 
36. 
It is to be noted that much emphasis has been laid on 
behalf of the appellants that notwithstanding the fact that 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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indemnity/validity has not been granted to the unauthorized 
actions of the then Chief of Army Staff dated 3.11.2007, they 
continued to be the Judges in view of the observations of this 
Court, in pursuance whereof they were ordered to be dealt with 
under Article 209 of the Constitution and  in  the  order dated 
5.10.2010 though they were ordered to be proceeded under 
Article 204 of the Constitution but it was never held that they 
were no more Judges of the Supreme Court or the High Courts. 
Reliance in this behalf has also been placed on the stand taken by 
the Government of Pakistan in the statement reproduced 
hereinabove wherein reference of paragraph No.17 of the Sindh 
High Court Bar Association’s case has been made. The arguments 
so advanced on behalf of the appellant as well as the Attorney 
General for Pakistan required to be examined in different context 
because in Sindh High Court Bar Association’s case PCO as well 
as Oath Order, 2007 had been declared unconstitutional and void 
ab-initio, whereas in Khurshid Anwar Bhinder’s case permission 
was not accorded to some of the applicants (Judges) who wanted 
to seek the review of the main judgment for expunging the 
observations of whatsoever nature made therein against them. 
 
44. 
… However, under the so called proclamation of 
Emergency and PCO, 2007 read with Oath Order, 2007 some of 
the Judges including the appellants, who both expressly and 
impliedly 
agreed that under the new dispensation 
i.e. 
proclamation of emergency and PCO, 2007 they ceased to hold 
their offices under the Constitution, as such, made fresh oath 
under the PCO, foregoing their earlier appointments under the 
Constitution of 1973. 
 
50. 
… Thus, all the Judges including the appellants, who 
opted to make oath under the said dispensation accepted that they 
ceased to hold office the moment the said instruments were 
promulgated, i.e. 3.11.2007. Admittedly, under PCO, 2007 
appointment was not under the Constitution. They deviated not 
only from their appointments, but also from their oath. Mere 
making of fresh oath under the Constitution on its revival would 
make no difference. Notably, there is a marked distinction 
between the oath under the Constitution, and the oath under the 
PCO/Oath Order. In the former case, one takes oath to perform 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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one’s functions in accordance with the provisions of the 
Constitution, whereas in the latter, one commits oneself to abide 
by the provisions of the PCO/Oath Order and the orders passed 
from time to time by the person issuing the said instruments. A 
Constitutional document is not an ordinary legislative instrument, 
rather it is the supreme law of the land, being an accord among 
the people. It is an instrument for running the affairs of the 
country. It governs the rights and obligations of the citizens. Even 
a child born today is a subject of the Constitution. Thus, 
appellants in presence of oath made under the Constitution 
accepted oath under PCO, 2007 and in this way violated their oath 
under the Constitution in letter and spirit. 
 
It was finally held as under: - 
65. 
As a result of above discussion appeals are disposed of as 
follows:- 
(1) 
The appellants and others constitutionally are not holders 
of the office as Judges of the High Courts in absence of 
validation, 
rectification 
and 
legitimization 
of 
unconstitutional acts, deeds, omissions and commissions 
of the then Chief of Army Staff, General Pervez 
Musharraf (Retd.) whereby he imposed the martial law in 
the name of Emergency on 3.11.2007, which continued 
up to 15.12.2007 and the appellants because of making 
oath under PCO, 2007 read with Oath Order, 2007 ceased 
to hold the office because the PCO and the Oath Order, 
2007 have been declared unconstitutional in Sindh High 
Court Bar Association’s case and by legislative 
interference in Eighteenth and Nineteenth Constitutional 
Amendments no validation has been provided to such 
unconstitutional actions, omissions and commissions.” 
 
The petitioners contested the notices in Justices (R) Iftikhar Hussain 
Chaudhry’s case (supra) and the questions formulated therein were as 
under: - 
(i) 
Is it constitutionally permissible for this Court to proceed under 
Article 204 of the Constitution against Judges of the Supreme 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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Court and of the High Courts, for committing contempt of this 
Court? 
(ii) 
If the aforesaid question is answered in the affirmative then, as a 
matter of propriety, should the Supreme Court proceed against the 
said Judges or should it, bearing in mind the status of the 
respondents as Judges of the Supreme Court and High Courts, 
discontinue these proceedings and discharge the notices issued to 
them? 
(iii) 
If it is decided that the Constitution does not place restrictions on 
contempt proceedings against Judges and if it is also found that 
questions of propriety do not stop this Court from proceeding 
against the respondents under Article 204 of the Constitution, then 
is there sufficient material available before the Court to charge the 
respondents for committing contempt of the Supreme Court on 
account of disobedience of the order dated 3.11.2007? 
The above noted questions were answered as under: - 
(i) 
In the facts and circumstances of these matters, the Constitution 
and law does not prohibit proceedings under Article 204 of the 
Constitution against the respondents even though they may be 
Judges of the Supreme Court and the High Courts. We hold that 
they are not immune from proceedings under Article 204 and the 
Contempt of Court Ordinance V of 2003, for committing contempt 
of this Court. 
(ii) 
Having considered the submissions of learned counsel as to the 
propriety of 
initiating 
contempt proceedings against the 
respondents and being fully conscious of the status of the 
respondents, we hold that in the circumstances of these matters, 
propriety requires that proceedings should be taken against the 
respondents and they, with the exception of Mr. Zafar Iqbal 
Chaudhry and Khurshid Anwar Bhindar, be put to trial in 
accordance with the aforesaid law. 
(iii) 
Having considered the record, facts and circumstances and replies 
in these matters and after due consideration of the arguments 
advanced on behalf of respondent, we find that there is sufficient 
material available before us to justify charging the respondents 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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(other than Mr. Khurshid Anwar Bhinder and Mr. Zafar Iqbal 
Chaudhry,) for committing contempt of the Supreme Court on 
account of their disobedience of the order dated 3.11.2007 passed 
by a seven member Bench of this Court. 
The remaining appeals were disposed of vide judgment in Justice 
Hasnat Ahmed Khan’s case (supra) as under (@ para 65): - 
(1) 
The appellants and others constitutionally are not holders of the 
office as Judges of the High Courts in absence of validation, 
rectification and legitimization of unconstitutional acts, deeds, 
omissions and commissions of the then Chief of Army Staff, 
General Pervez Musharraf (Retd.) whereby he imposed the 
martial law in the name of Emergency on 3.11.2007, which 
continued up to 15.12.2007 and the appellants because of 
making oath under PCO, 2007 read with Oath Order, 2007 
ceased to hold the office because the PCO and the Oath Order, 
2007 have been declared unconstitutional in Sindh High Court 
Bar Association’s case and by legislative interference in 
Eighteenth and Nineteenth Constitutional Amendments no 
validation has been provided to such unconstitutional actions, 
omissions and commissions. 
(2) 
The appellants, however, shall cease to hold office of the Judges 
of the High Court with effect from the date of passing of 
Eighteenth Constitutional Amendment. The Secretary Law, 
Government of Pakistan is hereby directed to issue necessary 
notifications that they ceased to hold the office with effect from 
the said date. 
(3) 
As far as appellants and others are concerned, they shall be 
entitled for the service and pensionary benefits up to 20.4.2010 
when Eighteenth Constitutional Amendment was passed. 
However, if ultimately they are found to be guilty for the 
contempt of court by this Court, their cases for affecting the 
recovery of pensionary benefits in future shall be dealt with 
accordingly. 
(4) 
As appellants and others are not Judges of the High Courts, 
therefore, they cannot claim immunity for holding their trial for 
Constitution Petitions No.1, 2 and 10 of 2016  
 
-: 18 :-
contempt of Court under Article 204 of the Constitution read 
with relevant laws. 
 
6. 
 
The judgments relied upon by the petitioners were 
previously referred to in Justice Khurshid Anwar Bhinder’s case 
(supra) but were not followed by the 14-Member Bench of this Court 
being distinguishable. However, we would like to discuss them in 
detail, in order to satisfy the petitioners. In Mujibur Rahman Shami’s 
case (supra) notices for contempt of court were issued to the petitioner 
No.1 (therein), who then filed a petition for contempt of court against 
the sitting Judge of the High Court, which was heard by a 7-Member 
Bench of the High Court and was dismissed in limine holding that the 
petitioner had filed the said petition with an ulterior motive to harass 
the aforesaid judge and to pressurize him. If such petitions are 
encouraged then no Judge of a superior Court would be able to 
function freely because as and when he decides a case against a 
litigant there will at once be filed an application of the type. It was 
observed that in the same way that one High Court Judge cannot 
issue a writ to another Judge of the same Court, no process of 
contempt of Court can lie (for example) for taking action against a 
Judge  for disobeying the order of another Judge. In K. L. Gauba’s 
case (supra) the petitioner therein filed petition for contempt of Court 
alleging that the High Court Judges had committed contempt in 
refusing to him a certificate to file an appeal. The question for 
consideration before the Court was thus whether the Federal Court 
could take action for contempt of Court against the High Court for 
was observed tant 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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Even Mr. Gauba does not suggest punishment by fine or imprisonment; 
he would be content that the High Court should be served with an order 
to grant the certificate hitherto perversely or maliciously withheld. But 
what is that but to ask this Court to do by indirect means what it is 
admitted that it cannot do directly? The law of contempt of Court has at 
times been stretched very far in British India; but no one has ever 
contended that a Court could use its power to punish for contempt for 
the purpose of extending its jurisdiction in other matters.” In Prakash 
Chand’s case (supra) the powers and authority of the Chief Justice of 
the High Court were highlighted, inter alia, that the administrative 
control of the High Court vests in the Chief Justice alone; on the 
judicial side, however, he is only the first amongst equals; the Chief 
Justice is the master of the roster. Consequently, the direction given 
by a Judge of the High Court to issue show cause notice to the Chief 
Justice of the High Court (Respondent No.2 therein), was quashed and 
set aside, being wholly unwarranted, unjustified and legally 
unsustainable. In Rachapudi Subba Rao’s case (supra) the trial Court 
decreed the suit against the appellant/defendant (therein) who issued a 
notice to the Judge asking him to pay damages for, inter alia, deciding 
the case with bad faith and maliciously disordering the existing oral and 
documentary evidence.  The notice was sent to the High Court for 
necessary action and ultimately contempt proceedings were initiated 
against the appellant and he was convicted for committing gross 
contempt of Court, which was maintained by the Supreme Court. In 
Harish Chandra’s case (supra), N.P. Singh, J., observed that “whenever 
a contempt is committed in presence of a Judge of the Supreme Court or 
High Court it is not the contempt of the particular court in which such 
Judge is presiding but of the Supreme Court or the High Court, as the 
case may be. As such, when Section 16(1) says that “a Judge … shall 
Constitution Petitions No.1, 2 and 10 of 2016  
 
-: 20 :-
also be liable for contempt of his own court” it obviously does not refer 
to the Supreme Court or High Court. In respect of Supreme Court or 
High Court there is no question of any Judge being liable for contempt 
of his own court, in other words, the courtroom in which such Judge is 
presiding. Only a Judge of subordinate court can be said to have 
committed contempt of his own court, i.e., the court in which such judge 
is presiding. … The framers of the constitution in order to maintain the 
independence of high judiciary kept them immune from the criticism in 
respect of their conduct even in the Parliament and Legislature of the 
State by saying so in Articles 131 and 211 of the Constitution. They 
prescribed a special procedure for their removal under Articles 124(4) 
and 217(1)(b).” It was further observed that “there cannot be two 
opinions that Judges of the Supreme Court and High Courts are 
expected to conduct the proceedings of the Court in dignified, objective 
and courteous manners and without fear of contradiction it can be said 
that by and large the proceedings of the higher courts have been in 
accordance with well settled norms.” P.S. Sahay, J. observed that “A 
Judge has every right to control the proceedings of the Court in a 
dignified manner and, in a case of misbehaviour or misconduct on the 
part of a lawyer proceedings in the nature of contempt can be started 
against the lawyer concerned. But, at the same time a Judge cannot 
make personal remarks and use harsh words in open Court which may 
touch the dignity of a lawyer and bring him to disrepute in the eyes of 
his colleagues and litigants.”  
7. 
 
After considering the above referred judgments, we are of 
the view that in none of the cases, was there a specific order of the 
Supreme Court, issuing certain directions to the Judges of the 
superior Courts, which (order) had been violated by them. The ratio of 
Constitution Petitions No.1, 2 and 10 of 2016  
 
-: 21 :-
the above case-law is that the Judges of the High Courts are immune 
from action under the contempt of Court laws by another Judge of the 
same Court, on the application of a person who is/was a party to the 
proceedings pending/decided by a Judge of the High Court, with 
regard to a decision in that case, but in none of the cases has it been 
held that no proceedings could be initiated against a Judge of the 
High Court for violating the order of this Court. In the instant case, 
notices for contempt of Court were issued to the petitioners as well as 
other Judges for violating the order of this Court whereby a specific 
direction was issued to the Judges of the High Court not to take oath 
under the PCO or any other unconstitutional instrument. Sanctity 
has always been attached to a judicial order passed by this Court in a 
pending case and no one can be allowed to frustrate it, or refuse to 
accede to it or fail to follow a direction issued therein. Any person, 
who intentionally and deliberately violates any order of this Court, 
makes himself liable to be proceeded against and punished for 
contempt of Court. On any count and score, it cannot be presumed 
that a Judge of the High Court is immune from the consequences of 
violation or willful defiance of an order of this Court; if that were so,  
the whole judicial structure would be disturbed and fall to the 
ground, as the orders of this Court could not be implemented in letter 
and spirit. Thus, the said cases are of no use in advancing the cause 
of the petitioners, being distinguishable on facts as also on law.  
8. 
 
With regard to the submission made by the learned 
counsel for the petitioners that the judgment in Sindh High Court Bar 
Association’s case (supra) is per incuriam, it is to be noted that in the 
said judgment, while considering the validity of the judgments in 
Tikka Iqbal Muhammad Khan v. General Pervez Musharraf and 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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others (PLD 2008 SC 178) and Tikka Iqbal Muhammad Khan v. 
General Pervez Musharraf, Chief of Army Staff, Rawalpindi and 2 
others (PLD 2008 SC 615) the Court observed that “subsequently, 
another 7-Member Bench headed by Mr. Justice Abdul Hameed 
Dogar, Chief Justice of Pakistan, as then he was called, took up 
hearing the case of Tikka Iqbal Muhammad Khan and WATAN Party 
and decided the same on the principle of ‘Salus Populi Supreme 
Lex’ and granted that relief which was even not prayed by the 
petitioner. This judgment is/was, ex facie, per incuriam, coram-non-
judice, illegal and unlawful. Later, a time barred Review Petition was 
filed by Tikka Iqbal Khan which was heard by 13-Member Bench and 
was dismissed, palpably to give impression that a larger Bench 
decided the matter to dilute the effect of a previous judgment handed 
down in case of Syed Zafar Ali Shah (PLD 2000 SC 869).” At some 
other place it was observed that “the learned counsel for the 
petitioners next submitted that the decisions in Tikka Iqbal Muhammad 
Khan’s case were rendered in violation of the provisions of Articles 209 
and 2A of the Constitution and were also per incuriam in view of the 
law laid down in Zafar Ali Shah’s case wherein at page 1211 it was 
laid down in clear terms that the Judges of the superior judiciary 
enjoyed constitutional guarantee against arbitrary removal. They could 
be removed only by following the procedure laid down in Article 209 of 
the Constitution by filing an appropriate reference before the Supreme 
Judicial Council and not otherwise. There is force in the submissions of 
the learned counsel. The decision appears to have been rendered in 
haste to confer validity on the acts of 3rd November, 2007 and onward 
for the illegal and unlawful personal benefit of General Pervez 
Musharraf and for the illegal and unlawful personal benefit of the 
persons rendering it, without application of judicial mind.” The Court, 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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ultimately held that “the decisions in the cases of Tikka Iqbal 
Muhammad Khan granting validity to the actions of General Pervez 
Musharraf (Rtd.) were per incuriam, coram-non-judice, without any 
legal basis hence, of no legal consequences”. Further, the grounds 
and parameters for declaring a judgment to be per incuriam have been 
highlighted by this Court in the judgment reported as Matter 
Regarding Pensionary Benefits of the Judges of Superior Courts 
(PLD 2013 SC 829) as under: - 
“4. 
… … As it is a cardinal principle of justice, that the law 
should be worn by the Judge in his sleeves and justice should be 
imparted according to the law, notwithstanding whether the parties 
in a lis before the Court are misdirected and misplaced in that 
regard. Therefore, if any law which has been invalidly pronounced 
and declared by this Court, which in particular is based upon 
ignorance of any provisions of the Constitution, and/or is founded 
on gross and grave misinterpretation thereof; the provisions of the 
relevant law have been ignored, misread and misapplied; the law 
already enunciated and settled by this Court on a specific  subject,  
has  not  been  taken  into  account,  all  this,  inter alia, shall 
constitute 
a 
given 
judgment(s) 
as 
per 
incuriam; 
and 
inconsistent/conflicting decision of this Court shall also fall in that 
category. 
Such 
decision 
undoubtedly 
shall 
have 
grave 
consequences and repercussions, on the State, the persons/ citizens, 
the society and the public at large as stated above. Therefore, if a 
judgment or a decision of this Court which is found to be per 
incuriam (note: what is a judgment per incuriam has been dealt 
with by my brother), it shall be the duty of this Court to correct 
such wrong verdict and to set the law right. And the Court should 
not shun from such a duty (emphasis supplied). … … In my candid 
view the approach to leave such a decision to stay intact shall be 
ludicrous and shall lead to drastic effects as indicated above. 
Rather in such a situation this Court, having special position in our 
judicature (judicial system as highlighted above) shall have the 
inherent, intrinsic and inbred power (jurisdiction) vested in it, (a) 
to declare a judgment per incuriam; (b) decline to follow the same 
as a valid precedent, (c) and/or to set it aside. For the exercise of 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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jurisdiction in that regard and for the discharge of the duty as 
mentioned earlier, it is absolutely irrelevant and immaterial vide 
(via) which source it (decision) has come to the notice of the 
Court. The Court once attaining the knowledge of such a 
blemished and flawed decision has the sole privilege, to examine 
the same and to decide about its fate, whether it is per incuriam or 
otherwise. In this context, it may be mentioned, for example, if 
while hearing some case, it is brought to the attention of the Court 
by the member(s) of the Bar; or during the hearing of any matter, 
the Court itself finds an earlier judgment to be per incuriam; or if a 
Judge (Judge of this Court) in the course of his study or research, 
comes across any judgment which in his view is per incuriam or if 
any information through the Registrar of the Court is passed on to 
the honourable Chief Justice of the Court or to any other Judge (of 
this Court), by any member of the Bar, or the member of the civil 
society (any organization/group of the society) that a judgment is 
per incuriam (note: without the informant having any right or locus 
standi of hearing or the audience, until the matter is set out for 
hearing in the Court and the Court deems it proper to hear him), 
the Court in exercise of its inherent suo motu power and the duty 
mentioned above (emphasis supplied) shall have the due authority 
and the empowerment to examine such a judgment, in order to 
ascertain and adjudge if the law laid down therein is incorrect or 
otherwise. And if the judgment is found to be per incuriam, it shall 
be dealt with accordingly. In such a situation (as earlier stated) it 
shall not be of much significance, as to who has brought the vice of 
the judgment to the notice of the Court or through which channel it 
has reached there. Rather, the pivotal aspect, the object, the 
concern and the anxiety of this Court should be to examine the 
judgment and if it is per incuriam to set the law right with 
considerable urgency.” 
 
9. 
 
We have considered the judgment in Sindh High Court 
Bar Association’s case (supra), which is delivered by a 14-Member 
Bench of this Court, and find that the same is a well-reasoned 
judgment, wherein all the factual aspects, legal and constitutional 
provisions as also the case-law have been considered, dealt with and 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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correctly decided. The same was reconsidered and upheld by another 
14-Member Bench of this Court in Justice Khurshid Anwar 
Bhinder’s case (supra).  
Then again, the said judgments and the law laid down therein were 
reconsidered and upheld in Justices (R) Iftikhar Hussain Chaudhry’s 
case (supra) and Justice Hasnat Ahmed Khan’s case (supra).  
10. 
 
After applying the ratio of the above judgments on the 
facts of the instant case, we find that none of the grounds settled by 
this Court, as mentioned above, for declaring a judgment per incuriam, 
including that the judgment was invalidly pronounced; based upon 
ignorance of any provisions of the Constitution or law; founded on 
gross and grave misinterpretation thereof; or that the law already 
enunciated and settled by this Court on a specific subject has not 
been taken into account, are to be found in the judgments challenged 
through the instant petitions. We are not convinced, on account of any 
principle relevant for the purposes of rendering a judgment per 
incuriam, that the same could conceivably be attracted to the facts and 
circumstances of the instant case. Resultantly, we are not inclined to 
declare the above referred judgments per incuriam.   
11. 
 
There is another aspect of the matter which is of 
considerable importance i.e. the maintainability of these petitions. In 
this context, it is held that the petitioners had the remedy of 
challenging the judgment, if they were aggrieved of the same, by filing 
review petitions, which they did attempted so to do but could not 
succeed. They were a party in Khurshid Anwar Bhinder’s case (supra) 
and their respective submissions were rejected and the review 
applications were accordingly dismissed as being not maintainable; 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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besides observing that the judgment impugned, being in the supreme 
national interest, there hardly appeared any justification for review. 
Further, the petitioners contested the contempt notices in Justices (R) 
Iftikhar Hussain Chaudhry’s case (supra) and then Intra Court 
Appeals in Justice Hasnat Ahmed Khan’s case (supra) but without 
any measure of success. All the points raised in the said 
cases/judgments have been re-agitated through the present petitions. 
In such a situation, the petitions under Article 184(3) are absolutely 
incompetent and not maintainable. Where a person has/had the 
opportunity of filing a review or appeal against a judgment, and either 
files a review/appeal and fails, or does not avail that opportunity, or 
fails to become a party in any pending review/appeal filed by another 
person against the same judgment, then he has no right to re-agitate 
the matter through a petition under Article 184(3) ibid. Article 184(3) 
ibid is a constitutional provision which is meant for the purposes of 
enforcement of fundamental rights, where there is a question of public 
importance involved. It cannot be exercised as a parallel review 
jurisdiction by the court, especially when the remedy of review has 
already been availed or declined. Yes, a judgment of this Court can be 
considered to be per incuriam but it is for the Judges to revisit any 
such judgment, if and when pointed out by any person during the 
course of hearing of any other case. Such a finding would be premised 
on the Court finding the same judgment to be against any provision of 
the Constitution or the law, or the principle(s) already settled by a 
larger Bench of the Court. It is not the right of a person, who would 
have no locus standi under Article 184(3) of the Constitution, to file 
such a petition, particularly in the situation where the review 
jurisdiction has been invoked and the same (review) has been 
dismissed; thus, such judgment (under review) can never be challenged 
Constitution Petitions No.1, 2 and 10 of 2016  
 
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by virtue of filing independent proceedings under Article 184(3) of the 
Constitution. This would be an abuse of the process of law and is 
absolutely impermissible. Resultantly, we do not find any merit in 
these petitions which are accordingly dismissed. 
12. 
 
Above are the reasons for our short order of even date, 
whereby the titled petitions were dismissed. 
 
 
 
 
 
CHIEF JUSTICE 
 
 
 
 
JUDGE 
 
JUDGE 
 
 
 
 
JUDGE 
 
JUDGE 
 
 
 
 
JUDGE 
 
JUDGE 
Islamabad, the 
5th of January, 2018 
Approved For Reporting 
Waqas Naseer