IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
 
PRESENT: 
 
 
 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ. 
 
 
 
MR. JUSTICE JAVED IQBAL 
 
 
 
MR. JUSTICE MIAN SHAKIRULLAH JAN 
 
 
 
MR. JUSTICE TASSADUQ HUSSAIN JILLANI 
 
 
MR. JUSTICE MIAN SAQIB NISAR  
  
 
MR. JUSTICE SARMAD JALAL OSMANY  
MR. JUSTICE AMIR HANI MUSLIM 
 
 
 
 
INTRA COURT APPEAL NO. 9 & 10 OF 2011 
 
Abdul Hameed Dogar, former Judge/CJP … 
 
APPELLANT  
 
 
 
 
 
 
 
 
 
(ICA 9/2011) 
 
Mr. Justice Sayed Zahid Hussain 
 
… 
 
APPELLANT  
 
 
 
 
 
 
 
 
 
(ICA 10/2011) 
 
INTRA COURT APPEALS NO. 3, 4, 6 TO 8 & 11 OF 2011 
 
Mr. Justice Hasnat Ahmed Khan  
 
… 
 
APPELLANT  
 
 
 
 
 
 
 
 
 
(ICA 3/2011) 
 
Mr. Justice Syed Shabbar Raza Rizvi 
… 
 
APPELLANT  
 
 
 
 
 
 
 
 
 
(ICA 4/2011) 
 
Mr. Justice  Syed Hamid Ali Shah 
 
… 
 
APPELLANT  
 
 
 
 
 
 
 
 
 
(ICA 6/2011) 
 
Mr. Justice (R) Iftikhar Hussain Chaudhary… 
 
APPELLANT  
 
 
 
 
 
 
 
 
 
(ICA 7/2011) 
 
Mr. Justice Syed Sajjad Hussain Shah 
… 
 
APPELLANT  
 
 
 
 
 
 
 
 
 
(ICA 8/2011) 
 
Justice Mrs. Yasmin Abbasey  
 
… 
 
APPELLANT  
 
 
 
 
 
 
 
 
 
(ICA 11/2011) 
 
 
 
 
 
VERSUS 
Federation of Pakistan/State   
 
…  
 
RESPONDENT 
 
For the appellants: 
 
Raja Muhammad Ibrahim Satti, Sr. ASC 
(ICA 9/2011) 
 
 
Mr. Ejaz Muhammad Khan, AOR (absent) 
 
For the appellants: 
 
Mr. S.M. Zafar, Sr. ASC   
(ICA 10/2011) 
 
 
Raja Abdul Ghafoor, AOR 
 
For the appellants: 
 
Dr. A. Basit, Sr. ASC  
(ICA 3 & 4/2011)  
 
Mr. Arshad Ali Chaudhry, AOR 
 
ICA 3 /2011 ETC 
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For the appellants: 
 
Syed Raza Kazim, Sr. ASC  
(ICA 6/2011) 
 
 
Mr. G.N. Gohar, AOR (absent)  
 
 
For the appellants: 
 
Dr. Khalid Ranjha, Sr. ASC  
(ICA 7/2011) 
 
 
Mr. Mehmood A. Sheikh, AOR 
 
For the appellants: 
 
Sh. Zamir Hussain, Sr. ASC 
(ICA 8/2011) 
 
 
Mr. Ejaz Muhammad Khan, AOR (absent) 
 
For the appellants: 
 
Raja Abdul Ghafoor, AOR  
(ICA 11/2011) 
 
 
 
 
On Court’s notice:  
 
Maulvi Anwar-ul-Haq 
 
 
 
 
 
Attorney General for Pakistan  
 
Respondent:  
 
 
Not represented  
 
Date of hearing:  
 
03.03.2011 
…  
 
ORDER 
 
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – By Intra Court 
Appeals No. 9 & 10 of 2011 filed under section 19 of the Contempt of 
Court Ordinance, 2003, appellants Justice (Retd.) Abdul Hameed 
Dogar and Justice Sayed Zahid Hussain have questioned the legality of 
the order dated 02.02.2011 passed by a Bench of this Court in 
Criminal Original Petitions. The concluding paragraph therefrom reads 
as under: -   
“Let the cases now be fixed for framing of charge against 
the 
aforesaid 
respondents 
on 
21.02.2011. 
The 
respondents, if they so desire, appear on that date to 
enter their plea on the charge(s) framed. In the 
alternative, they may, if they choose, enter their pleas 
through counsel who are duly instructed.”  
 
Mr. Justice Sayed Zahid Hussain, Judge of the Supreme Court, after 
filing the appeal realized that he had taken oath under a 
misunderstanding on 03.11.2007, when a 7 – Member Bench of the 
Supreme Court had passed a restraint order to block imposition of 
unconstitutional rule in the country, inter alia, directing as follows: -  
ICA 3 /2011 ETC 
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“(i) 
Government of Pakistan, i.e. President and Prime 
Minister of Pakistan are restrained from undertaking 
any such action, which is contrary to Independence 
of Judiciary; 
  
(ii) 
No judge of the Supreme Court or the High Courts 
including Chief Justice(s) shall take oath under PCO 
or any other extra-Constitutional step; 
  
(iii) 
Chief of Army Staff, Corps Commanders, Staff 
Officers and all concerned of the Civil arid' Military 
Authorities are hereby restrained from acting on PCO 
which has been issued or from administering fresh 
oath to Chief Justice of Pakistan or Judges of 
Supreme Court and Chief Justice or Judges of the 
Provincial High Courts; 
  
(iv) 
They are also restrained to undertake any such 
action, which is contrary to independence of 
Judiciary. Any further appointment of the Chief 
Justice of Pakistan and Judges of the Supreme Court 
and Chief Justices of High Courts or Judges of 
Provinces, under new development shall be unlawful 
and without jurisdiction.” 
 
2.  
 
Mr. Justice Sayed Zahid Hussain admittedly had taken oath 
in violation of above order of this Court and now after having regretted 
opted for retirement and addressed a letter to the President of 
Pakistan in this behalf. Copy thereof was also endorsed to the 
Registrar of this Court. The competent authority has acceded to his 
request as is evident from the contents of the notification dated 
01.03.2011, issued by the Government of Pakistan, Ministry of Law 
and Justice, which reads as under: -  
“In exercise of the powers conferred by Article 179 of the 
Constitution of Islamic Republic of Pakistan, the President 
is pleased to allow retirement to Mr. Justice Sayed Zahid 
Hussain, Judge of Supreme Court of Pakistan with 
immediate effect in terms of Paragraph 15 of the Supreme 
Court  Judges (Leave, Pension and Privileges) Order, 
1997.” 
 
3.  
 
Mr. S.M. Zafar, learned Sr. ASC for appellant Mr. Justice 
Sayed Zahid Hussain, now retired, has filed an application under Order 
XXXIII, rules 5 & 6 of the Supreme Court Rules, 1980, wherein besides 
mentioning the different dates on which Justice Sayed Zahid Hussain 
ICA 3 /2011 ETC 
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had taken oath as an Additional Judge, as a Judge and as Chief Justice 
of the Lahore High Court, and thereafter as a Judge of the Supreme 
Court, already referred to in the judgment of this Court in Sindh High 
Court Bar Association's case (PLD 2009 SC 879), it is categorically 
stated that “he is extremely sorry for having taken oath on 
03.11.2007 under a misunderstanding and has regretted for 
the same”. The learned counsel submitted that Mr. Justice Sayed 
Zahid Hussain, for the sake of the dignity and respect of the Institution 
of Judiciary, has sacrificed his four years’ service as a Judge of the 
Apex Court and henceforth he would be no more adorning the Bench, 
as the notification of his retirement has already been issued, therefore, 
while exercising jurisdiction available to this Court to decide not to 
proceed against a person facing the charge of contempt who offers 
regrets, the proceedings against him be terminated.    
4.  
 
The learned Attorney General for Pakistan, after having 
gone through the notification of retirement of Justice Sayed Zahid 
Hussain and the contents of the application containing statement of 
regrets for taking oath on 03.11.2007 stated that regrets so expressed 
by him may be accepted, particularly keeping in view that he had 
stood retired and was no more the Judge of this Court.   
5.  
 
It may be observed that in a case of contempt of Court like 
the one in hand all that the Court is required to be satisfied is that the 
dignity and authority of the Court by flouting its judgments/orders are 
not put at stake. The law of contempt is primarily intended to ensure 
that the majesty of the law is upheld and the dignity of the Institution 
of Judiciary, which is a most important pillar of the State, is protected 
and it also restores confidence of the general public in the due and 
proper administration of justice in the country. Indeed, Courts are 
ICA 3 /2011 ETC 
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vested with an extraordinary jurisdiction to punish a person for 
committing contempt of Court, and armed with a powerful weapon, 
but the same is to be exercised/used judiciously and sparingly 
depending upon the facts and circumstances of each case. However, 
with reference to instant case, it needs to be emphasized that on 
03.11.2007, a 7 – Member Bench of this Court passed a restraint order 
not only to save the dignity of the judiciary, but also to protect 
Constitution as it is the duty of Judges of Superior Courts who have 
taken oath to preserve and protect it. Thus, it was all the more 
necessary for the Judges of the Superior Courts to respect the order in 
all circumstances. However, Mr. Justice Sayed Zahid Hussain having 
realized that he had taken oath under a misunderstanding has 
regretted for his action and decided to quit in the larger interests of 
the Institution and he would not be adorning the Bench. Therefore, we 
accept the request so made by him. Consequently, appeal (ICA No. 10 
of 2011) is allowed and proceedings for contempt of Court to his 
extent pending before a Bench of this Court are terminated.  
6.  
 
Now, turning towards the case of Justice (Retd.) Abdul 
Hameed Dogar, mentioning of the facts in detail may not be necessary 
in view of the judgment of this Court in Sindh High Court Bar 
Association's case wherein this Court has declared that Justice (Retd.) 
Abdul Hameed Dogar, in view of violation of order dated 03.11.2007 
noted above, was never a constitutional Chief Justice of Pakistan and 
all the appointments of the Judges made in consultation with him were 
declared to be unconstitutional. For reference, relevant portion from 
the short order/judgment is reproduced hereinbelow: -  
“(ii) it is declared that the office of the Chief Justice of 
Pakistan never fell vacant on November 3, 2007 and as a 
consequence thereof it is further declared that the 
appointment of Mr. Justice Abdul Hameed Dogar as the 
ICA 3 /2011 ETC 
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Chief Justice of Pakistan was unconstitutional; void ab 
initio and of no legal effect.”  
 
“(iii) since Mr. Justice Abdul Hameed Dogar was never a 
constitutional Chief Justice of Pakistan, therefore, all 
appointments of Judges of the Supreme Court of Pakistan, 
of the Chief Justices of the High Courts and of the Judges 
of the High Courts made, in consultation with him, during 
the period that he, unconstitutionally held the said office 
from 3.11.2007 to 22.3.2009 (bath days inclusive) were 
declared to be unconstitutional, void ab initio and of no 
legal effect and such appointees shall cease to hold office 
forthwith.”  
 
7.  
 
It is pertinent to mention here that against the above 
judgment review petitions were also filed, which have been dismissed 
in Justice Khurshid Anwar Bhinder’s case (PLD 2010 SC 483). 
Subsequent thereto, notices for contempt of Court were issued to 
Justice (Retd.) Abdul Hameed Dogar and others. He contested the 
proceedings and ultimately a Bench of this Court decided to proceed 
against him for contempt of Court as is evident from the concluding 
paragraph of the order dated 02.02.2011, reproduced hereinabove. 
Thus, instant appeal has been filed.   
8.  
 
Mr. Muhammad Ibrahim Satti, learned Sr. ASC appeared 
and placed on record a statement under the signature of Justice 
(Retd.) Abdul Hameed Dogar, which is reproduced hereinbelow in 
extenso: -  
“STATEMENT OF MR. JUSTICE (RETD) ABDUL 
HAMEED DOGAR (APPELLANT) 
 
With all humility and humbleness at my command, it is 
submitted 
that 
under 
abrupt, 
unexpected 
changes, 
confusion, misconception and misunderstanding, the order 
dated 3.11.2007 could not be complied which is highly 
regretted with repentance and sorrow. I stood retired on 
21.3.2009 and not enjoying good health. It is humbly 
requested that, in view of my ailment, the explained 
scenario, for which I am really sorry, my regrets may very 
kindly be accepted and notice of contempt may please be 
ICA 3 /2011 ETC 
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withdrawn for which I shall highly obliged and place myself 
at the mercy of Court.   
  
 
 
 
 
 
 
 
 
Sd/-  
 
 
 
 
 
 
 
   (Abdul Hameed Dogar)  
 
 
 
 
 
 
 
 
     Appellant  
 
 
 
 
 
 
 
 
    02.03.2011”  
 
9.  
 
The learned counsel has submitted that Justice (Retd.) 
Abdul Hameed Dogar has already retired on 21.03.2009, he is no more 
a Judge of this Court, he is not enjoying good health and while feeling 
sorry and expressing regrets he has stated that he could not comply 
with the order dated 03.11.2007 under confusion, misconception and 
misunderstanding. Besides, he has placed himself at the mercy of the 
Court, therefore, his regrets may be accepted and his appeal may be 
disposed of accordingly.   
10.   
The learned Attorney General for Pakistan, on having gone 
through the statement noted hereinabove has stated that as Justice 
(Retd.) Abdul Hameed Dogar has placed himself at the mercy of the 
Court, therefore, on account of the realization that he ought to have 
complied with the aforesaid order, the request so made by him may be 
accepted.  
11.   
We have considered the request made before us vide 
statement reproduced hereinabove and have also gone through the 
judgments of this Court in the cases of Sindh High Court Bar 
Association and Justice Khurshid Anwar Bhinder. We are of the opinion 
that as against the past practice, the order dated 03.11.2007 was 
passed by a 7 – Member Bench for the first time in the history of this 
Court whereby Judges of Supreme Court and High Courts including 
Chief Justices of High Courts were restrained not to take oath under 
PCO or any other extra-constitutional act with a view to block the 
imposition of martial law and abrogation of the Constitution as it has 
ICA 3 /2011 ETC 
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already been clarified hereinabove, as the dignity and respect of the 
Institution of Judiciary are to be guarded first of all by its own 
members. Admittedly, Justice (Retd.) Abdul Hameed Dogar violated 
the order dated 03.11.2007 as it is evident from the conclusion drawn 
by this Court in the case of Sindh High Court Bar Association (ibid). 
However, in the case of Justice (Retd.) Abdul Hameed Dogar much 
water has already flown under the bridges, during course whereof all 
the actions taken by the then Chief of Army Staff had been declared 
unconstitutional including appointment of Judges of Supreme Court 
and High Courts. Reference may be made to the case of Justice 
Khurshid Anwar Bhinder (ibid). At this stage, Mr. Justice (Retd.) Abdul 
Hameed Dogar has regretted for his actions and has also thrown 
himself at the mercy of the Court. In the case in which helplessness 
has been shown by a person facing contempt proceedings has 
persuaded us to exercise jurisdiction of contempt sparingly. We accept 
appeal (ICA No. 9 of 2011) and terminate the contempt proceedings 
against him too. However, no exception of whatsoever nature shall be 
claimed by him in respect of observations made in the Sindh High 
Court Bar Association's case as well as in Justice Khurshid Anwar 
Bhinder’s case.  
12.   
M/S Raza Kazim, Khalid Ranjha and Sh. Zamir Hussain, 
learned counsel for Justice Syed Hamid Ali Shah, Justice Iftikhar 
Hussain Chaudhry and Syed Sajjad Hussain Shah, appellants in ICA 
No. 6, 7 & 8 of 2011 have submitted that they may be allowed two 
weeks’ time to take instructions from the appellants in view of the 
orders/observations made hereinabove.  
13.   
Mr. Ali Zafar, learned ASC who is representing Justice Ms. 
Yasmin Abbasey, appellant in ICA No. 11 of 2011 is not present. Mr. 
ICA 3 /2011 ETC 
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Raza Kazim, learned ASC submitted that instead of dismissing the 
appeal in default, the same may also be adjourned in the interest of 
justice along with other appeals. Adjourned to 21.03.2011.    
 
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.  
 
 
 
JAVED IQBAL, J.   
 
 
 
MIAN SHAKIRULLAH JAN, J.  
 
 
 
TASSADUQ HUSSAIN JILLANI, J.  
 
MIAN SAQIB NISAR, J.   
 
 
 
 
 
SARMAD JALAL OSMANY, J.   
 
AMIR HANI MUSLIM, J.  
 
 
Islamabad,  
March 3, 2011  
 
APPROVED FOR REPORTING