The bench had stopped contempt proceedings against the Defence Secretary from November 08 to November 18 in response to an ICA filed by Syed Iftikhar Hussain Gillani, the counsel for Defence Secretary, against his client's indictment by a three-member bench.
The bench dismissed the ICA of Secretary Defence after Additional Attorney General Shah Khawar submitted before the court that the appeal was not competent, adding that the applicant still had the opportunity to agitate the matter before the trial court.
He pleaded that even at this stage, the trial court could amend the charge sheet if the applicant could put his defence before the trial court, adding that even the Election Commission of Pakistan (ECP) made an application before the apex court last week through Registrar's office, submitting a revised program for holding local bodies election, which the court approved.
He contended that the trial court could consider the defence of the applicant in the instant case. Justice Nasir-ul-Mulk observed that Secretary Defence should have made his defence before the trial court. Shah Khawar submitted that the applicant had missed that opportunity and instead of putting defence before the trial court, Secretary Defence tendered an apology. He however, said that the applicant had an opportunity to make his defence before the trial court. Earlier, arguing before the larger bench, Syed Iftikhar Hussain Gillani requested the court to annul the decision of the three-member bench of indicting his client as he contended that his client had no powers to hold elections.
"What my client could do, he could move the summary to Prime Minister as per court's direction, but not competent to hold elections," Gillani contended. Justice Nasirul Mulk however, asked the counsel that the formulation that he was placing before the appellate court, should have been placed before the trial court.
Gillani, however, contended that the law did not require him to give a date for holding elections. "I should not be compelled to hold elections," he contended while citing Article 4 of the constitution which reads that no person shall be compelled to do which the law does not require him to do so.
"I had an undertaking but I have no power to hold elections," the counsel contended. He questioned as to whether an undertaking could be considered as disobedience. Justice Mulk, however, asked the counsel that he should have submitted these formulations to the trial court. "You want us to quash the entire proceedings and withdraw the October 25 order of the trial court," Justice Mulk asked the counsel.
Gillani replied in the affirmative. "What will be the consequences of October 25 order"? Justice Nasir-ul-Mulk further asked. Gillani contended: "I dare to say that the charge cannot be framed and lets the order of trial court of October 25 be discharged and a chance should be given to me to place my defence before the trial court."
Gillani also submitted that despite the fact that his client had tendered an unconditional apology before the court, a charge was framed against him by the trial court. Gillani argued that he had challenged the decision of the trial court on grounds that a charge could not be framed against his client unless his case was heard by a larger bench. Justice Mulk, asked the counsel that his client tendered an apology before the court. "Prima facie, Is it not enough for farming a charge against your client," Justice Nasir-ul-Mulk questioned the told the counsel.
But Gillani insisted that he had come to the appellate court under the law as he could not hold the elections and he had already submitted that fact before the trial court. Meanwhile, the court dismissed the intra court appeal of Secretary Defence against his indictment for contempt of court by disobeying the court's order for holding local bodies elections in Cantonment Boards and asked his counsel to agitate the matter before the trial court.