Syed Ul Abrar Vs Mst. Faheema etc.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

JUDICIAL DEPARTMENT.

FAO No.07-P/2023 with C.Ms.No.38-P/2023 & 618-P/2025

J U D G M E N T

Date of hearing 15th September, 2025

Appellant Malik Manzoor Hussain along (Syed-ul Abrar) with appellant.

Respondents Mr. Muhammad Inam Khan (Provincial Government / Yousafzai, AAG.

Ombudsperson.)

Ms. Faheema etc. / Malik Muhammad Miraj, Respondents No.1 & 2. Advocate.

Research Assistance Riaz Aslam Daavi, SRO PHCP S. M. ATTIQUE SHAH, CJ.- Syed-Ul-Abrar, the appellant herein, through the instant appeal filed under Section 8 of the Khyber Pakhtunkhwa Enforcement of Women’s Property Rights Act, 2019 (“The Act of 2019”), has assailed the order dated 28.12.2022 passed by the learned Ombudsperson, Khyber Pakhtunkhwa for Protection against Harassment of Women at the Workplace. By the said order, while referring the complaint of the respondents to the learned Civil Courts under Section 6 of the ibid Act for treating the same as a civil suit in accordance with law, the Ombudsperson further imposed a fine of Rs.100,000/- upon the appellant on account of contempt of the forum. In addition thereto, directions were also issued to the worthy District Police Officer (“DPO”), Charsadda to lodge an FIR through the

SHO concerned against the appellant under the relevant provisions of the Pakistan Penal Code, 1860.

2.Counsel Counsel for the appellant argued that the impugned order was unlawful, void, and without jurisdiction.

He stated that the appellant was neither provided a fair hearing nor given an opportunity to present his defence. He further submitted that the Ombudsperson misapplied the law, exceeded the jurisdiction granted under the Act, and passed an order that lacked proper reasoning. The learned counsel emphasized that after referring the complaint of the respondents to the civil courts at Peshawar and Charsadda, the Ombudsperson became functus officio. Therefore, any subsequent proceedings, including the contempt proceedings and the impugned order passed therein, were without legal authority, being coram non judice and void ab initio. He contended that the order was liable to be set aside by this Court, particularly since the appellant had been condemned unheard, in violation of the principles of natural justice as guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973.

3.While rebutting these arguments, the learned AAG contended that during the pendency of the complaint proceedings, the appellant had engaged in gross misbehavior towards the Ombudsperson and the staff of the forum.

Therefore, the Ombudsperson, being vested with the requisite statutory authority, rightly took cognizance of the matter and

initiated contempt proceedings. The imposition of a fine and the direction for registration of an FIR were made in the due exercise of lawful authority and in accordance with the relevant legal provisions. Hence, the impugned order suffers from no legal infirmity and is not liable to be interfered with by this Court.

4.Arguments heard. Record perused.

5.The following are the questions for determination before this court in the present matter:

1.Whether the Ombudsperson appointed under the Khyber Pakhtunkhwa Enforcement of Women Property Rights Act, 2019 has been vested with the power to punish for contempt of court?

2.Whether the worthy Ombudsperson, while imposing the impugned fine of Rs. 100,000/- along with directions for registration of FIR, acted within the jurisdiction conferred upon the office?

3.Whether the Ombudsperson has complied with Article 10A of the Constitution of Pakistan while passing the impugned order of fine and directions for registration of FIR?

6.As to question No 1, it would be appropriate to briefly discuss the office of the ombudsperson. The word ‘ombudsperson’ is used in the English language as a gender neutral synonym of ‘ombudsman’. Originally a Swedish word, the term ‘ombudsman’ means ‘representative’ or ‘proxy’. This words and its historical background has been explained by this

court in the case of Mst Falak Shehnaz Vs Farah Deeba1 in detail. The office of the Ombudsperson is a statutory authority created under the Protection against Harassment of Women at the Workplace Act, 2010 (“The Act of 2010”). The Government appoints a qualified person—who may be a retired or serving judge of the High Court, a senior civil servant with legal background, or a professional from civil society of established integrity—to perform the functions of this office. The Ombudsperson’s primary role under the Act of 2010 is to provide protection against workplace harassment by enquiring into complaints, conducting proceedings, and ensuring that the Code of Conduct is enforced in organizations. In the exercise of these functions, the Ombudsperson is empowered to issue show-cause notices, summon witnesses, compel production of documents, record evidence, and enter premises for the purposes of inspection or investigation. After the conclusion of the proceedings, the Ombudsperson may impose minor or major penalties on a delinquent employee or employer, including censure, fines, compulsory retirement, or dismissal or removal from service.

Importantly, Section 10 of the Act empowers the Ombudsperson with the powers of a Civil Court for effective exercise of authority under the law. These powers include summoning any person to appear and record a statement on oath, compelling the production of evidence, receiving evidence in the form of affidavits, appointing a commission 2025 PLD Pesh 01

for the examination of witnesses, and entering or inspecting any premises to collect information or evidence relevant to the case. The Ombudsperson is also authorized to punish any person for contempt, possessing powers similar to those of a High Court in such matters. Thus, the Ombudsperson under this law is not merely an administrative functionary but one clothed with quasi-judicial powers, including the extraordinary power to punish for contempt.

7.The role of the Ombudsperson was later

expanded through the Khyber Pakhtunkhwa Enforcement of Women’s Property Rights Act, 2019. This Act entrusted the same Ombudsperson, already appointed under Section 7 of the Act of 2010, with additional jurisdiction to protect and secure women’s ownership and possession of property. Section 3 of the Act of 2019 provides that, in addition to the powers and functions specifically mentioned in this law and its rules, the Ombudsperson shall also exercise the same powers, functions, and authority as those granted under the Protection against Harassment of Women at the Workplace Act, 2010. Under this framework, any woman deprived of her property may file a complaint under Section 4 or Section 7 of the Act of 2019 before the Ombudsperson, who is empowered to conduct a summary inquiry or direct the Deputy Commissioner to investigate and submit a report. The term complainant has been defined in clause (a) of Section 2 of the said Act as a woman who files a complaint or for whom proceedings are

initiated regarding the title or possession of her property.

Similarly, property has been defined in clause (e) to include both movable and immovable property. Upon being satisfied that a woman has been unlawfully deprived of her property, the Ombudsperson may exercise powers under Sections 5, 9, and 10 of the Act of 2019 to order restoration of possession, conferment of title, or payment of rent for the period of dispossession. For the enforcement of such orders, the Ombudsperson may seek assistance from the police or district administration. In cases requiring complex adjudication or detailed evidence, the Ombudsperson may refer the matter to the Civil Court under Section 6 of the Act 2019. Appeals against the orders of the Ombudsperson lie before the Peshawar High Court under Section 8 of the same Act. In summary, the Ombudsperson serves as a specialized statutory forum vested with extensive powers to protect women both against workplace harassment and in matters relating to property rights. The office functions as a quasi-judicial authority, equipped with enforcement mechanisms through administrative support and vested with contempt jurisdiction akin to that of the High Court, ensuring the effectiveness and sanctity of its proceedings.

8.The power to punish for contempt is not expressly mentioned in the Act of 2019; however, it is derived from Section 3 of the same Act, which provides as follows:

“Section 3. Powers of the Ombudsperson.— In addition to the powers, functions and authority under this Act and the rules made thereunder, the Ombudsperson, for the purposes

of this Act, shall have the same powers, functions and authority as are vested in the Ombudsperson under the Protection against Harassment of Women at the Workplace Act, 2010 (IV of 2010).”

The above provision incorporates by reference the powers conferred upon the Ombudsperson under the Act of 2010, most pertinently Clause (vi) of sub-section (1) of Section 10 thereof, which reads:

“10. Powers of the Ombudsperson.---The Ombudsperson shall for the purpose of this Act have the same powers as are vested in a Civil Court under the Code of Civil Procedures, 1908 (Act V of 1908), in respect of the following matters, namely:

(vi)the Ombudsperson shall have the same powers as the High Court has to punish any person for its contempt.”

A bare reading of the above provisions makes it clear that the Ombudsperson is empowered to exercise contempt jurisdiction similar to that of a High Court. Therefore, the argument that the Ombudsperson lacks such authority is without merit. Thus, in the light of the above detailed reasoning, the answer to Question No. 1 is in the affirmative.

The Ombudsperson is vested with powers equivalent to those exercised by the High Court in cases of contempt.

9.The next ancillary, incidental, and connected question that arises is how the High Court itself derives the power to punish for contempt. In order to safeguard the dignity and authority of the superior courts, prevent disobedience of their orders, discourage obstruction in the administration of justice, and reflect the collective wisdom and will of the people of Pakistan, Article 204 was incorporated

into the Constitution of the Islamic Republic of Pakistan, 1973, which provides as follows:-

“Article 204. Contempt of Court.

(1)In this Article, “Court” means the Supreme Court or a High Court.

(2)A Court shall have power to punish any person who-

(a)abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;

(b)scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;

(c ) does anything which tends to prejudice the determination of a matter pending before the Court; or

(d)does any other thing which, by law, constitutes contempt of the Court.

(3)The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.”

Article 204 of the Constitution of the Islamic Republic of Pakistan confers upon the Supreme Court and the High Courts the constitutional authority to punish any person for contempt of court. This power emanates from the Constitution of Pakistan, which is the supreme law of the land. The Constitution was unanimously passed by the National Assembly in its session held on 10 April 1973 and was authenticated by the President on 12 April 1973. It was promulgated on 14 August 1973 as the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, the power to punish for contempt is not an inherent power of the courts but one that has been conferred upon the superior courts by the people of Pakistan through the Constitution. It defines contempt as any act that abuses, obstructs, or interferes with the process of the court, disobeys its orders, or undermines its

dignity and authority. This includes scandalizing the court or its judges, committing acts that may prejudice the outcome of a case under consideration, or engaging in any conduct that the law recognizes as contempt. The Article 204 further provides that the manner in which this power is to be exercised may be regulated by law and, subject to such law, by rules framed by the respective courts. To give effect to this constitutional provision, the Contempt of Court Act 1976 was enacted, which was later repealed through the Contempt of Court Ordinance 2003. Subsequently, the Contempt of Court Act 2012 was promulgated, repealing the Ordinance of 2003.

However, the Act of 2012 was challenged before the Supreme Court of Pakistan in Baz Muhammad Kakar case,2 which struck it down and thereby revived the Contempt of Court Ordinance 2003. Thus, the power to punish for contempt is primarily derived from the Constitution of the Islamic Republic of Pakistan. To regulate and implement this constitutional power, the provisions of the Contempt of Court Ordinance, 2003, must be taken into consideration as a guiding framework.

10.This court in the case of Amjid Ali IHC Vs the state3 explained the matter of contempt of court in the below words:- The definition of term "Contempt" has been provided under section 3 of the Contempt of Court Ordinance, 2003 which reads as follows:

"Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a willful breach of a valid undertaking given to a Court; or does 2012 PLD Supreme Court 923

2024 P Cr. LJ 1803 Pesh

anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to, his office, or to disturb the order or decorum of a Court, is said to commit "contempt of Court". The contempt is of three types, namely, the "civil contempt", "criminal contempt" and "judicial contempt."

According to 17 CJS, (a complete statement of entire American Law is developed by all reported cases). Contempt has also been defined as a willful disregard or disobedience of a public authority. In its broad sense, a contempt is a disregard of, or disobedience of the rules or orders of a legislative or judicial body or interruption of legislative or judicial body or interruption of its proceedings by disorderly behavior or insolent language in its presence or so near thereto or to disturb its proceedings or to impair the respect due to such body (Peters v. Goodyear Tire and Rubber Company Cm. Pl. 76 NE 2d 412, 13 CJ P4 Notes). In its restricted and more usual sense, the contempt comprehends a despising of an authority, justice or dignity of a court (Burtrum v. Smith 206 SW 2d, 558, 357, MO 134). It may be civil or criminal, direct or constructive and may be defined as a disobedience to the court by acting in opposition to its authority, justice and dignity. The phrase "contempt of court" is generic, embracing within its legal signification, a variety of different acts. It is regulated by constitution and statutes but sometime supersede the common law. It signifies not only a willful disregard or disobedience of the court orders but such conduct as tends to bring the authority of a court and its administration of law into disrepute or in some manner to impede the due administration of justice.

6.Section 3 of the Contempt of Court Ordinance, 2003 classifies three types of contempt, namely, Civil Contempt, Criminal Contempt and Judicial Contempt. While clauses (a), (b) and (c) of section 2 of the Ordinance, 2003 provide definition of all the three types of contempt in the following way:

(a)"Civil contempt" means the wilful flouting or disregard of,---

(i)An order, whether interim or final, a judgment or decree of a Court;

(ii)A writ or order issued by a Court in the exercise of its Constitutional Jurisdiction;

(iii)An undertaking given to, and recorded by, a Court;

(iv)the process of a Court;

(b)"Criminal contempt" means the doing of any act with intent to, or having the effect of, obstructing the administration of justice;

(c)"Judicial contempt" means the scandalization of a Court and includes personalized criticism of a Judge while holding office;

In general, again according to "CJS 17 Contempt", apart from civil and criminal contempt, in some jurisdiction statutes recognize and preserve the fundamental distinction between the two in substance but not in the name. The contempt may be direct or constructive. In addition to term constructive as an antithesis of direct the courts and statutes have used such word as indirect. The direct contempt is one which is committed in the presence of the court and the indirect are those which are committed outside the premises of the court, either a civil or criminal contempt may be direct or indirect. It is important to note that formerly in the court of equity contempt were classified as ordinary and extra ordinary. Reference can be made to US v. Anonymous CC21F761. A direct contempt of court has been defined as contempt committed in the presence of the court while it is in session. It takes place at the very presence of the judge making all of the elements of the offence matters within his personal knowledge. It consists of any conduct which tends to embarrass or obstruct the court in the administration of justice or tends to bring the administration of law into disrepute. The acts occurring in judge's chamber when the court is not duly constituted or in session do not constitute contempt under a statute providing that disorderly contemptuous or insolent conduct towards a judge while holding a court shall constitute contempt. A constructive, indirect or consequential contempt is one committed outside the court; it is an act done at a distance which tends to belittle, degrade, obstruct, interrupt or embarrass the court and the administration of justice. The constructive contempt in legal definition is not an obstruction but it must subvert justice where judge has not full personal knowledge of every element of the contempt and its demonstration depends on the proof of facts of which the court would have no judicial notice, the contempt is held to be indirect. A doubt as to whether contemnor has been guilty of a direct or indirect contempt should be resolved in favor of constructive contempt especially where a criminal contempt is charged.

7.Common definition of criminal contempt is that it is the conduct that is directed against the dignity or authority of the court or a judge, acting judicially. It is an act obstructing the administration of justice which tends to bring the court of justice into disrepute or disrespect. It may arise in the cases of a criminal action in special proceedings or in civil and private litigations. Distinguishing from civil contempt, in general contempt of court for which punishment is inflicted for the primary purpose of vindicating the public authority are denominated criminal, while those in which enforcement of civil rights and remedies is the ultimate target of the punishments are denominated as civil contempt. The line of demarcation is between the acts constituting civil and criminal contempt is very indistinct. The confusion in

attempts to classify civil and criminal contempt is due to the fact that there is contempt in which both elements appear. Contempt may be neither wholly civil nor altogether criminal, may partake of the characteristics of the both. The major factor in determining whether contempt is civil or criminal is the purpose for which the power is exercised. Contempt is civil when the punishment is whole remedial, serves only the purposes of complainant and is not intended chiefly as a deterrent to offences against the public. The polar concepts are "Punitive v. Remedial". Whether or not a fine or imprisonment imposed? is not a distinguishing test.

8.Civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of an opposing party therein and is therefore an offence against the party in whose behalf the violated order is made, if however, the contempt consists in doing a forbidden act injurious to the opposite party, the contempt may be considered criminal. Likewise, refusal to perform an act, the conduct demonstrated is derogatory to the authority or dignity of the court. There is no doctrine of anticipatory contempt.

9.After going through the basic concept and definitions in the foregoing discussion the relevant provisions of Constitution and statutes must be explained. Article 204 of the Constitution confers powers on the Supreme Court and High Courts of the Provinces to punish any person who commits contempt of the court and judges. It is also worth mentioning that powers of the superior courts are restricted to punish the contempt of superior courts exclusively but subsection (2) of section 4 of the Contempt of Court Ordinance, 2003 also confers powers on the respective High Courts to punish contempt committed in relation to any court subordinate to it. Contempt of Court Ordinance, 2003, regulates the powers and procedure of superior courts to punish the contempt according to mandate of Article 204 of the Constitution and jurisdiction of subordinate courts is excluded. Meaning thereby that the offences covered under section 3 of the Ordinance, 2003, are exclusively triable by the Superior Courts and jurisdiction of subordinate courts is excluded. However, under subsection (3) of section 4 which is a disabling clause, contempt of the subordinate courts which is punishable under the Pakistan Penal Code, the High Courts cannot assume the jurisdiction. It follows that in case of contempt of subordinate courts which are not punishable under the provisions of Pakistan Penal Code, it is for the High Court to try the contemnor. It is also worth mentioning that the contempt of Court Ordinance is a special law which prescribes its own mechanism for trial of contemnors which is not meant for proceedings before the subordinate courts. Rather for the subordinate courts the procedure has been laid down under sections 476 to 487 of the Criminal Procedure Code. Since there is no ambiguity with respect to applicability of Contempt of Court Ordinance, 2003, that is the exclusive domain of superior courts but with only exception to the subsection (3) of section 4 of Ordinance,

2003. It is to be emphasized that the subordinate courts while proceeding with the trials of contemnors under the provisions of Criminal Procedure Code also must bear in mind the guidelines provided under Volume III, Chapter 8, Part-A and B of the High Court Rules and Orders. In determining the jurisdiction of subordinate courts in dealing with contempt triable under subsection (3) ibid, pre-requisite of section 195 Cr.P.C shall be fulfilled.

11.The above-mentioned case has comprehensively elaborated the regime governing contempt of court, along with its scope, application, and procedural framework. Thus, Contempt of court refers to any act of disobedience, disrespect, or obstruction towards a court, its orders, or its authority. It includes actions such as defying court directions, disturbing proceedings, scandalizing judges, or undermining the administration of justice. The core purpose of contempt law is to protect the dignity of the judiciary and ensure the effective administration of justice. Under the Contempt of Court Ordinance, 2003, contempt is categorized into three types. Civil contempt occurs when a person deliberately disobeys an order, judgment, writ, or undertaking given to a court. This form of contempt is primarily aimed at securing compliance with court directions and safeguarding the rights of the opposing party. Criminal contempt arises when an act is committed with the intent, or effect, of obstructing the administration of justice or lowering the authority of the court.

The aim here is punitive, meant to uphold public respect for the judiciary. Judicial contempt refers specifically to scandalizing a court or personally attacking judges while they are in office. Contempt may further be classified as direct or indirect. Direct contempt is committed in the immediate

presence of the court, typically involving conduct that disrupts judicial proceedings or undermines the authority and dignity of the court. It includes acts such as disorderly or disrespectful behavior in the courtroom, use of offensive language, refusal to obey lawful orders of the judge, or any action that obstructs the due course of justice. It is also called contempt in facie curiae.4 Indirect (or constructive) contempt, on the other hand, takes place outside the court, such as refusing to comply with a court order. Since the judge has no personal knowledge of the act, such contempt requires proof through evidence. This type of contempt is also called contempt ex facie Curiae.5 In cases of doubt, the law leans towards treating the act as indirect contempt. A key distinction exists between civil and criminal contempt, though often the line is blurred. Civil contempt is remedial and intended to benefit the complainant by compelling compliance. Criminal contempt is punitive, intended to protect the dignity and authority of the judiciary itself. Some cases may involve elements of both, and the nature of the punishment—whether remedial or punitive— usually determines how the contempt is classified. The power to punish for contempt lies primarily with the superior courts under Article 204 of the Constitution and the Contempt of جج کی موجودگی ميں کی جاتی،توہين عدالت ہوتی ہے جو عدالت کے سامنے ِ يہ وه4 ہے۔يعنی جب کوئی شخص عدالت کے کمر ٔه عدالت ميں جج کے سامنے ايسا رويہ اختيار وقار يا اتهارٹی، يا ايسا عمل کرے جس سے عدالت کی عزت، ايسی بات کرے،کرے "کہا جاتا ہے۔ يعنی يہ وهcontempt in facie curiae" تو اسے،مجروح ہو جائے توہين ہے جسے عدالت خود اپنی آنکهوں سے ديکهتی ہے اور جس کے ليے عام طور پر کسی لمبے تفتيشی عمل يا گواہی کی ضرورت نہيں ہوتی۔ توہين عدالت ہوتی ہے جو عدالت کے باہر کی جاتی ہے۔ يعنی ايسا عمل جو عدالت ِ يہ وه5 کی موجودگی ميں نہيں بلکہ عدالت کے دائرے سے باہر سرزد ہو۔ اس ليے اس کے ليے

Court Ordinance, 2003. The Supreme Court and High Courts may punish contempt of their own orders or those of subordinate courts. However, subordinate courts do not have jurisdiction under the Ordinance. Instead, they proceed under the provisions of the Criminal Procedure Code, 1898 (sections 476–487) and the High Court Rules. If the contempt committed amounts to an offence under the Pakistan Penal Code, 1860, subordinate courts may act accordingly, but in all other cases, it is for the High Court to try the contemnor. In essence, the law of contempt ensures that the courts are able to command obedience, respect, and dignity, without which the administration of justice would collapse. It provides a balance between protecting the rights of parties, securing compliance with lawful orders, and maintaining the authority of the judicial system as a whole.

12.As to question No 2, as discussed in detail above that the worthy ombudsperson has got power to punish its contempt in the same manner as a High court under article 204 of the Constitution of Pakistan and the Contempt of Court Ordinance 2003. In light of the above, this Court has examined the impugned order dated 28.12.2022, wherein it is recorded that the appellant became angry, shouted within the office premises, and behaved inappropriately with both the staff and the Ombudsperson. Consequently, a fine of Rs.

1,00,000/- was imposed on the appellant for contempt of the شواہد اور باقاعده کارروائی کی ضرورت ہوتی ہے تاکہ عدالت يہ،عام طور پر تحقيقات طے کر سکے کہ واقعی توہين ہوئی ہے يا نہيں۔

Forum. Furthermore, the District Police Officer, Charsadda, was directed to register an FIR through the concerned Station House Officer against the appellant under the relevant provisions of the Pakistan Penal Code, 1860. In order to determine the legality of the fine imposed and the direction issued for the registration of the FIR, it is appropriate to examine the Contempt of Court Ordinance, 2003. It is evident from a careful reading of the Contempt of Court Ordinance, 2003 that the present matter, prima facie, falls within the ambit of criminal contempt as defined in clause (b) of section 2, which describes it as the commission of any act with intent to, or having the effect of, obstructing the administration of justice. Section 3 further delineates that any conduct intended to interfere with, obstruct, or prejudice the process of law or the due course of judicial proceedings constitutes contempt of court. The punishment for such offence is provided under section 5, which authorizes the court to impose simple imprisonment extending up to six months, or a fine up to one hundred thousand rupees, or both. Section 6 elaborates on the acts amounting to criminal contempt, including attempts to influence or intimidate a witness or a judge, or any act designed to divert the course of justice, while section 7 empowers the superior courts to take cognizance of criminal contempt suo motu, on the initiative of a concerned person, or on the application of a law officer of the Provincial or Federal Government. Section 13 of the Ordinance outlines the procedure where contempt is committed in the face of the

court (contempt in facie curiae), authorizing the presiding judge to detain the contemnor immediately and to record in open court the precise words or conduct constituting the contempt. The court may proceed forthwith against the offender or, if the matter cannot be concluded on the same day, may release the contemnor on bail or on personal bond and refer the matter to the Chief Justice for appropriate orders.

Perusal of Section 5 of the Contempt of Court Ordinance, 2003 clearly reveals that the court is empowered to impose simple imprisonment extending up to six months, or a fine not exceeding one hundred thousand rupees, or both. In the present case, the Ombudsperson has imposed a fine of Rs.

100,000 along with a direction for the registration of an FIR.

Although the imposition of a fine up to one hundred thousand rupees is permissible under the said provision, but the direction for lodging an FIR does not fall within the ambit of Section 5 and is, therefore, without lawful authority. Hence, the answer to Question No. 2 is partially in the negative and partially in the affirmative, inasmuch as the Ombudsperson is competent to impose a fine up to one hundred thousand rupees under Section 5 of the Ordinance but lacks jurisdiction to issue directions for the registration of an FIR.

13.As to Question No 3, the record of the case reveals that the present appellant, Syedul Abrar, and respondents No. 1 and 2, Ms. Faheema and Ms. Naheeda, are siblings inter se. In the year 2022, the respondent ladies filed a complaint against their brother, the appellant, before the

Worthy Ombudsperson under section 4 of the said Act, seeking recovery of their ancestral properties from him, as fully described in the heading of the complaint. The said complaint was contested by the appellant through the submission of his written statement. After hearing both parties, the Worthy Ombudsperson decided the said complaint on 20 September 2022 in the following manner:- Under the given complaint, written reply with other tangible records available on the complaint file, factual controversies as to properties claimed by the complainant in the captioned complaint and question of cancellation of mutations is also involved, which per-se requires in-depth inquiry and recording of pro and contra evidence from both the parties, hence, for proper resolution of the controversy at hand it is indispensable to refer the titled complaint to the concerned Civil Courts at Peshawar and Charsadda under section 6 of the Khyber Pakhtunkhwa Enforcement of Women’s Property Rights Act, 2019 to treat the titled complaint as a civil suit in accordance to the relevant law and rules.

The foregoing portion of the impugned judgment is self- explanatory. Under section 6 of the Act of 2019, the Worthy Ombudsperson possesses the jurisdiction to refer a matter to the civil court when an in-depth inquiry and detailed recording of evidence, both for and against, is required. Therefore, this part of the impugned judgment falls within the lawful jurisdiction of the Worthy Ombudsperson, and the appellant has not assailed the same in the present appeal. Subsequently, the respondents filed an application on 21.09.2022, requesting that the gift deed, on the basis of which the appellant was denying their share, be examined by the Forensic Science Laboratory (Annexure “E”, page 24). The appellant submitted

his reply to this application on 8.11.2022. Afterwards, an amended order was passed on 28.12.2022, adding the following paragraph to the earlier order dated 20.09.2022.

The respondent was directed to set original Gift Deed for verification / forensic and he appeared on 08.11.2022 but insistent / adamant to submit the same without official stamp of Ombudsperson which is not justifiable in any way, consequently, he got angered, shouted in the office premises and misbehaved not only with the staff members but with the Ombudsperson as well, therefore, against such an act, firstly, the respondent is being fined Rs.1,00,000/- as contempt of this Forum and secondly, the District Police Officer, Charsadda is hereby directed to lodge F.I.R. through SHO concerned against the respondent namely Said-ul-Abrar 5/o Saeedullah R/o Kanday Mirzagan, Tehsil and District, Charsadda (having Cell No.0312-9095002) in accordance with relevant and enabling provisions of the Pakistan Penal Code, 1860 and after lodging the FIR intimate the office of Ombudsperson.

The foregoing paragraph of the impugned judgment has been carefully examined, which reveals that the alleged contempt constitutes criminal contempt and amounts to contempt in facie curiae, as it allegedly occurred in the presence of the Worthy Ombudsperson. Accordingly, the provisions of Section 13 of the Contempt of Court Ordinance, 2003 are attracted. This section provides that where contempt is committed in the face of the court, the presiding judge is authorized to detain the contemnor immediately and to record in open court the precise words or conduct constituting the contempt. The court may proceed forthwith against the offender or, if the matter cannot be concluded on the same day, may release the contemnor on bail or on personal bond

and refer the matter to the Chief Justice for appropriate orders.

However, section 17 prescribes the general procedure for contempt proceedings, requiring that such proceedings commence with the issuance of a notice or show-cause notice, at the discretion of the court. The alleged contemnor may appear personally or through counsel, and upon a preliminary hearing, if the court is prima facie satisfied that the interest of justice so requires, it may frame a formal charge in open court and proceed to decide the matter on affidavits or after recording evidence. The provision also safeguards the right of the contemnor to cross-examine witnesses (except judges) whose affidavits are used in evidence. On a plain reading of the Contempt of Court Ordinance, 2003, there appears to be an apparent inconsistency between the provisions of Sections 13 and 17. Section 13 of the ordinance is reproduced for reference:-

“13. Procedure in cases of contempt in the face of the court.

(1)In the case of a contempt committed in the face of the court, the court may cause the contemnor/offender to be detained in custody and may proceed against him in the manner provided in sub-section (2):

Provided that if the case cannot be finally disposed of on the same day, the court may order the release of the accused from the custody either on bail or on his own bond.

(2)In all cases of contempt in the face of the court the judge shall pass an order in open court recording separately what was said or done by the accused person and shall immediately proceed against the offender or may refer the matter to the Chief Justice for hearing and deciding the case by himself or by another Judge.”

This section says that when an act of contempt takes place directly in front of the court, the judge must record in open court exactly what the accused person said or did. After doing so, the judge can either take action against that person immediately or send the matter to the Chief Justice. The Chief Justice may then decide the case himself or assign another judge to hear and decide it. It has not mentioned in this section that any notice or show cause notice shall be issued to the contemnor before passing the punishment order, although section 17 of the ordinance has provided a different procedure which is reproduced for reference below:-

“17. Procedure.

(1)Save as expressly provided to the contrary, proceedings in cases of contempt shall be commenced by the issuance of a notice, or a show cause notice, at the discretion of the court.

(2)In the case of a notice the alleged contemnor may enter appearance in person or through an advocate, and, in the case of a show cause notice, shall appear personally: Provided that the court may at any time exempt the alleged contemnor from appearing personally.

(3)If, after giving the alleged contemnor an opportunity of a preliminary hearing, the court is prima facie satisfied that the interest of justice so requires, it shall fix a date for framing a charge in open court and proceed to decide the matter either on that date, or on a subsequent date or dates, on the basis of affidavits, or after recording evidence: Provided that the alleged contemnor shall not, if he so requests, be denied the right of cross examination in relation to any affidavit, other than that of a judge, used in evidence against him.”

The process begins when the court issues either a notice or a show cause notice, depending on what the court thinks is appropriate. If a notice is issued, the person accused of

contempt (the alleged contemnor) may appear either personally or through a lawyer. If a show cause notice is issued, the alleged contemnor must appear personally, unless the court later allows that person to be excused from attending in person. After the initial stage, the court gives the alleged contemnor a preliminary hearing. If the court finds enough reason to proceed further in the interest of justice, it sets a date to frame a formal charge in open court. The case is then decided either on that date or later, based on written affidavits or after taking evidence. However, if the alleged contemnor requests, he cannot be denied the right to cross-examine any person whose affidavit is used as evidence against him, except in the case of an affidavit made by a judge. However, the expression “Save as expressly provided to the contrary” used at the beginning of Section 17 of the Contempt of Court Ordinance, 2003 serves as a qualifying clause, indicating that the general procedure prescribed therein for initiating contempt proceedings—namely, by issuance of a notice or show-cause notice or framing of charge or recording evidence—shall apply except where the Ordinance itself provides a distinct or special procedure. In other words, this provision safeguards the operation of other sections that expressly lay down a different mode of initiation or conduct of contempt proceedings. For instance, Section 13 of the Ordinance prescribes a special procedure for cases where contempt is committed in the face of the court, empowering the presiding judge to detain the contemnor immediately and

proceed summarily in the manner provided therein. Thus, the phrase under consideration ensures that while Section 17 governs the general procedural framework of contempt cases, its application stands excluded in situations expressly dealt with elsewhere in the Ordinance. This construction maintains internal harmony within the statute and reflects the legislative intent to distinguish between ordinary contempt proceedings (contempt ex facie Curiae) and those requiring immediate judicial response (contempt in facie curiae). It is evident from the foregoing discussion that, in terms of Section 13 of the Ordinance, the issuance of a notice or show-cause notice, the framing of a charge, or the recording of evidence is not a mandatory requirement.

14.This Court affirms that the incorporation of the right to a fair trial and due process as a distinct and enforceable fundamental right under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, signifies its profound constitutional importance. This provision elevates the principles of fairness, impartiality, and procedural justice to the level of constitutionally guaranteed entitlements, thereby imposing a binding obligation upon the State and the judiciary to ensure their effective realization.

Article 10-A must be interpreted in a liberal, purposive, and progressive manner, reflecting the evolving standards of justice and the imperatives of the rule of law. Courts are duty- bound to zealously guard and uphold this right, ensuring that

no individual is deprived of access to justice or subjected to arbitrariness in legal proceedings. The right to a fair trial extends beyond the formal confines of judicial process and encompasses substantive safeguards, including the right to be heard before a competent, independent, and impartial forum, and the freedom of every party to engage counsel of their choice without coercion, intimidation, or obstruction. It is essential to recognize that fair trial and due process constitute the two fundamental pillars of Article 10A6 of the Constitution of Pakistan. These principles are not mere procedural formalities; rather, they embody the spirit of justice itself. The superior courts of the country have repeatedly elaborated upon the scope of Article 10A, emphasizing its role in safeguarding individual rights against arbitrary exercise of power. Even before its formal insertion into the Constitution through eighteen amendment in the year 2010, the doctrines of natural justice held a central position in the jurisprudence of Pakistan, reflecting their timeless significance in ensuring fairness, impartiality, and reasoned adjudication. In the case of Hazara (Hill Tract) Improvement Trust v. Mst. Qaisra Elahi,7 the Hon’ble Supreme Court held as follows:

“The principle of natural justice enshrined in the maxim audi alteram partem is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. Reference in this behalf may be made to the case of Pakistan International Airlines Corporation and others v. Nasir Jamal Malik and others 2001 SCMR 934. In this judgment it has been held that where adverse action is New Article 10A ins. by the Constitution (Eighteenth Amdt.) Act, 2010

contemplated to be taken against the person/persons, he/they has/have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provision of the principle of natural justice and even in absence thereof it is to be read/considered as a part of such statute in the interest of justice. It is important to note that the principle of natural justice is now made inbuilt part of civil contracts like the one under discussion. This principle originates from Islamic System of Justice as evident from historical episode when Iblees was scolded for having misled Hazrat Adam (P.B.H.) into disobedience of Allah s command. Almighty Allah called upon Iblees to explain his conduct and after having an explanation from him which was found untenable, he was condemned and punished for all times to come. Thus, it is held that the principle of natural justice has to be applied in all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eye of law.”

In the case of The Government of Balochistan, Vs Muhammad Yasir8, the apex court reaffirmed that:- “The principles of natural justice require that the delinquent should be afforded a fair opportunity to converge, explain, and contest the claims against him before he is found guilty and condemned. The principles of natural justice and fair- mindedness are grounded in the philosophy of affording a right of audience before any detrimental action is taken, in tandem with its ensuing constituent that the foundation of any adjudication or order of a quasi-judicial authority, statutory body, or any departmental authority regulated under some law, must be rational and impartial, and the decision-maker has an adequate level of decision-making independence, and the reasons of the decision arrived at should be amply well- defined, just, and understandable. Therefore, it is incumbent that all judicial, quasi-judicial, and administrative authorities should carry out their powers with a judicious and evenhanded approach to ensure justice according to the tenor of law and without any violation of the principles of natural justice.”

2005 S C M R 678

2025 SCMR 367

In another case of Federal Government Employees Housing Authority Vs Ednan Syed9, the Supreme Court held that:- Article 10A of the Constitution requires that everyone is entitled to a fair trial and due process, which includes the basic right to be heard. The principle of 'audi alteram partem' is one of the foundational principles of natural justice. It necessitates the requirement of being heard so that the judicial order reflects the contention of every party before the court. To fulfill the requirements of being heard, it is settled that the relevant party must be issued first a notice and then be allowed a hearing10. These two (notice and hearing) are basic pre- requisites, which satisfy the test of being heard as well as fair trial and due process within the ambit of Article 10A of the Constitution.

These authoritative judgments of the superior courts have affirmed that the issuance of a show-cause notice and the provision of an opportunity to be heard are essential components of Article 10A of the Constitution of Pakistan.

15.Examining the present case in light of these principles, it is evident that the appellant was proceeded against without being afforded a fair opportunity of hearing, as no show-cause notice was served upon him nor was he invited to submit a reply in the alleged contempt proceedings. This failure amounts to a violation of the principles of natural justice and directly contravenes the fundamental right to a fair trial guaranteed under Article 10-A of the Constitution. The denial of due process has resulted in a serious miscarriage of justice, which necessitates remanding the matter for a de novo PLD 2025 Supreme Court 11

decision to uphold constitutional guarantees and ensure procedural fairness. As is evident from the amended order dated 28.12.2022, although the alleged contempt occurred in the face and presence of the worthy Ombudsperson and thus falls within the category of contempt in facie curiae, which ordinarily does not require a detailed inquiry or recording of evidence or even issuance of notice or show-cause under section 13 of the Ordinance 2003, yet the principles of natural justice, including the doctrine of audi alteram partem, the universal right of defence, and Article 10A of the Constitution of Pakistan, were required to be observed before the imposition of any punishment. However, these principles appear to have been violated in the present case, as no opportunity of defence was afforded to the appellant, nor was any show-cause notice issued. Article 1011 of the Universal Declaration of Human Rights (UDHR) also ensures the right to a fair hearing for everyone. Furthermore, the right to fair trial has also been addressed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) which has been ratified by Pakistan. Although Pakistan is a dualist state, the mere signing of any international convention does not render it enforceable upon the citizens of Pakistan unless and until it is incorporated into domestic law through appropriate legislative amendments12. However, the insertion of Article Provincial Police Officer v. Muhammad Nawaz (2011 SCMR 689) and Karachi Electric Supply Corporation v. Abdul Jabbar Channa (2003 PLC(CS) 500).

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

2002 SCMR 1694, PLD 1994 Supreme Court 693

10A into the Constitution of Pakistan is indeed consistent with the principles embodied in various international conventions.

Consequently, the impugned order, to the extent that it imposes a fine upon the appellant and directs registration of an FIR against him, is legally unsustainable. Therefore, the answer to Question No. 3 is in the negative.

16.As regards the applicability of Section 476 of the Code of Criminal Procedure, 1898, read with Section 228 of the Pakistan Penal Code, 1860, it is evident that when the Ombudsperson has been expressly vested with the powers of a High Court to punish any person for contempt, the provisions of Article 204 of the Constitution of the Islamic Republic of Pakistan and the Contempt of Court Ordinance, 2003, become relevant. Under these provisions, the High Court is empowered to punish for its own contempt, and the Ombudsperson exercises similar authority under Section 3 of the Act of 2019, which stems from the powers conferred by Section 10 of the Act of 2010. Therefore, the invocation of Section 476 CrPC read with Section 228 PPC is not applicable in such circumstances, as the Ombudsperson already possesses special powers equivalent to those of a High Court for addressing matters of contempt.

17.As to the contention that the Ombudsperson became functus officio upon passing the order dated 20.09.2022, it is pertinent to note that the principle of functus officio has been elaborated in the case of Kh. Muhammad

Fazil v. Mumtaz Munawar Khan Niazi,13 wherein it was defined in the following terms:

“The Latin maxim "functus officio" denotes that once the competent authority has finalized and accomplished the task for which he was appointed or engaged, his jurisdiction and authority is over and ended or, alternatively, that the jurisdiction of the competent authority is culminated once he has finalized and accomplished his task for which he was engaged. If the Court passes a valid order after providing an opportunity of hearing, it cannot reopen the case and its authority comes to an end and such orders cannot be altered save for where corrections need to be made due to some clerical or arithmetical error. This doctrine is applicable to both judicial and quasi-judicial authorities, and, if it is not adhered to, it may result in turmoil for the litigating parties. If the authorities or the judges would be able to alter, change or modify orders capriciously and variably then resultantly will leave no certainty and firmness to any order or decision passed by any Court or authority. It is imperative for a sound judicial system to result in finality and certitude to the legal proceedings.”

In the present case, it has been observed that after referring the matter to the civil courts through the order dated 20.09.2022 under Section 6 of the Act of 2019, the Ombudsperson had effectively concluded the proceedings. Thus, the worthy Ombudsperson became functus officio with respect to the complaint filed by the respondents, which was referred to the civil courts. However, in matters of contempt, the Ombudsperson cannot be regarded as functus officio, as the powers under the Contempt of Court Ordinance, 2003 may be invoked independently. There is no requirement of any pending case for initiating such proceedings, since contempt matters are dealt with separately and autonomously whenever and wherever contempt has been committed by any contemnor. The record reveals that ssubsequently, the respondents filed an application for verification of the gift

2024 SCMR 1059

deed, which should have been dealt with separately, rather than being incorporated into the order dated 20.09.2022 and leading to the issuance of an amended order on 28.12.2022.

The Ombudsperson was first required to determine whether, after referring the matter to the civil court, the forum retained jurisdiction to entertain any further application in relation to the same subject, keeping in view the principle of functus officio. Furthermore, since the application was received after the order of 20.09.2022, as is evident from the record, it ought to have been registered and processed independently and separately. This important procedural aspect was not addressed by the Ombudsperson, who neither examined the maintainability of the application nor dealt with it separately.

However, this procedural irregularity on the part of the Ombudsperson does not justify the alleged contempt committed by the appellant. Even if an incorrect procedure was adopted, the appellant was expected to pursue the appropriate legal remedies against that application before the competent forums, rather than resorting to conduct amounting to alleged contempt.

18.For the reasons discussed above, the impugned order is hereby set aside to the extent of the imposition of fine and the directions for lodging of an FIR against the appellant.

Consequently, the matter is remitted to the learned Ombudsperson for reconsideration and a fresh decision in accordance with law. Thereafter, if deemed appropriate, the

learned Ombudsperson may issue a show-cause notice to the appellant in respect of the alleged contempt, affording him adequate opportunity to submit a written reply. If required, further proceedings may then be initiated strictly in accordance with law, ensuring full observance of the principles of natural justice and procedural fairness. The Additional Registrar (Judicial) of this Court is directed to transmit a copy of this order to the worthy Ombudsperson for guidance, particularly with reference to paragraph No. 17.

19.This appeal is disposed of in the above terms along with C.Ms.

Announced

15. 09. 2025 CHIEF JUSTICE

(S.B) Justice S. M. Attique Shah, HCJ