ISLAMABAD: As a smaller bench of the Supreme Court refrained from proceeding further in the contempt case the previous day over non-compliance with a judicial order, a six-judge bench is set to take up on Monday the request by Additional Registrar (Judicial) Nazar Abbas to quash proceedings against him.

Headed by Justice Jamal Khan Mandokhail, the six-judge bench will take up Mr Abbas`s application, who has also urged the court to stay and summon the record of the contempt proceedings.

The bench includes Justice Muhammad Ali Mazhar, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.

The additional registrar -who was removed from office for withdrawing the challenge to the Customs Act from the two-judge bench headed by senior puisne judge Syed Mansoor Ali Shah will be represented by Advocate Muhammad Shahid Kamal Khan.

This is not all, because Monday will also see the constitutional bench headed by Justice Amin-udDin Khan take up the original challenge to Section 221(1)(A) of the Customs Act 1969.

The issue arose upon the perceived mismanagement of the case being fixed before a regular bench headed by Justice Shah, when it should have been placed before the constitutional bench as it relates to challenges to the vires of Customs Act.

The additional registrar has also requested the court to set aside the show cause notice under contempt charges as well as declare as illegal Registrar Muhammad Saleem Khan`s Jan 21 direction to remove the petitioner from his post.

In its order, the registrar had stated that the case was required to be fixed before the constitutional bench, but was mistakenly fixed before the regular bench. Consequently, he added, it led to wastage of time, resources of the institution as well as the parties, the SC explained.

It may be recalled that the cases were briefly fixed before a regular bench, then comprising Justice Shah, Justice Ayesha A. Malik and Justice Irfan Saadat Khan. The bench was later reduced to Justice Shah and Justice Ageel Ahmed Abbasi. The cases were heard on Jan 13 when, in addition to merit of the case, the constitutionality of Section 221A (2) of the Customs Act was challenged.

`Serious nature of lapse` The jurisdiction of the bench was contested and subsequently the cases were adjourned to Jan 16, but realising the serious lapse on itspart, the judicial branch approached the regular committee under Section 2(1) of the SC (Practice and Procedure) Act, (PPA) 2023.

Keeping in view the nature of the lapse, the committee convened on Jan 17 under Chief Justice of Pakistan (CJP) Yahya Afridi and noted that Article 191A(3) of the Constitution, read with Article 191A (5), expressly vests such jurisdiction only in the constitutional bench.

Thus the committee withdrew the cases from the regular bench and directed that the same be placed before the constitutional bench`s committee, formed under Article 191A, for re-fixation.

Meanwhile, the smaller bench of Justice Shah initiated contempt proceedings by framing questions: whether the two committees under PPA and Article 191A have the authority to withdraw a case from the regular bench hearing serious questions of constitutional law relating to its jurisdiction and whether these committees can, by an administrative order, undo the effect of a judicial order, whereby next date of hearing of a specific case had been fixed before aregularbench.

In his application, the additional registrar argued that the constitution of benches or approval of the roster was beyond the appellant`s capacity and jurisdiction. His responsibility, at the most, was to apprise the competent authority about the non-availability of any appropriate bench, which had not only been conveyed before time but had also been suggested to be met with by formation of the bench, so there was no lapse on part of the appellant in the entire scenario.

The petition contended that the act of the office was neither deliberate nor wilful, rather in pursuance of the decisions taken by the regular committee and the constitutional committee. It explained that the appellant had initiated an office note to comply with the Jan 16 order of the smaller bench in letter and spirit by constitution of the requisite special bench and having no intention to withhold or disobey the SC`s order.

Therefore, it argued, the show cause notice is misconceived and has been issued on presumption that the appellant had any role in non-fixation of the cases, which is factually incorrect.

The petitioner alleged that he had been made a scapegoat by removing him from his post and making him OSD without even an iota of malfunctioning on his part.

The appellant has been vilified in the press and his reputation tarnished without any fault on his part, the petition said. It regretted that grave miscarriage of justice had been caused to the appellant. Besides the court should not be `unduly touchy or over astute in discovering new varieties of contempt`, the appeal highlighted.