Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2024 IHC 144
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-05-21
Parties: Muhammad Sajid vs Imran Ahmed Khan Niazi and another
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-05-21, officially reported as 2024 IHC 144. In this matter between Muhammad Sajid and Imran Ahmed Khan Niazi and another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024IHC144
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title: Muhammad Sajid vs Imran Ahmed Khan Niazi and another Case No.: W.P. No.3061/2022 Date of Judgment:2024-05-21 Reported As: 2024 IHC 144 Result: Order Accordingly
Judgment
ORDER Arbab Muhammad Tahir, J.- This petition was heard on 30.03.2023 by a Larger Bench comprising of one of us (Mr Justice Arbab Muhammad Tahir, J.), Mr Justice Aamer Farooq, learned Chief Justice and Mr Justice Mohsin Akhtar, learned Senior Puisne Judge. Learned counsels for the respondent (Mr Imran Ahmed Khan Niazi) had raised objection as to maintainability of the petition, therefore, after hearing extensive arguments of both the sides on this legal point, the judgment was reserved. The Bench was to reassemble for pronouncement of judgment. Perusal of the material available on record reveals that Mr Justice Mohsin Akhtar Kayani, learned Senior Puisne Judge had authored and signed his own judgment, to which one of us (Mr Justice Arbab Muhammad Tahir, J.) has agreed/concurred. As per judgment of two members of the Larger Bench, the instant petition was "not maintainable". The judgment of the two Members of the Bench refers to a "Draft judgment" authored by the learned Chief Justice, but the same is not part of the record. The said Bench was to reassemble and pronounce the verdict, obviously opinion of the majority as per clause 26 of the Letters Patent of the High Court which provides that if a Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority. 2. Upon reconstitution of the Bench, two of us (Mr Justice Tariq Mehmood Jehangiri, J. and Ms Justice Saman Rafat Imtiaz, J.) have been included to hear this petition whereas, the learned Chief Justice and Mr Justice Mohsin Akhtar Kayani, learned Senior Puisne Judge have been excluded. There is no judicial order on record showing that said learned Members of the Bench may have
---
## Page 2
recused themselves from hearing this petition, particularly when one of them (Mr Justice Mohsin Akhtar Kayani, learned Senior Puisne Judge) had authored and signed his own judgment, agreed to by Mr Justice Arbab Muhammad Tahir, J. It is pertinent to mention that there is nothing on record that Mr Justice Mohsin Akhtar Kayani, learned Senior Puisne Judge may have recused himself from hearing the petition. 3. Perusal of record further shows that before reconstitution of this Bench, one member of the earlier Bench (Mr Justice Mohsin Akhtar Kayani, Senior Puisne Judge) had written two office notes (i.e. one addressed to Secretary to the learned Chief Justice and the other to the Registrar of this Court) for issuance of cause list so that the Bench reassembles for pronouncement of order of the court. It appears that the Registrar failed to comply with such directions without any plausible explanation. For the sake of convenience both the office notes are reproduced below.- (Office Note dated 02.05.2023) "With utmost respect, it is submitted that in Writ Petition No.3061/2022 titled "Muhammad Sajid Vs. Imran Ahmad Khan Niazi and another" draft judgment was received from the Hon'ble Chief Justice (the Author Judge). However, the judgment was not assented by me and separate findings have been recorded which are concurred by my learned brother Mr. Justice Arbab Muhammad Tahir, J. The same are submitted herewith in sealed envelop for announcement by tomorrow i.e. 03-05- 2023. -sd- (MOHSIN AKHTAR KAYANI) JUDGE Secretary to Hon'ble Chief Justice"
(Office Note dated 09.05.2023) "Case bearing Writ petition No.3061 of 2022 titled Muhammad Sajid Vs Imran Ahmed Khan Niazi and another, was heard and reserved for judgment on 30.03.2023 by the Hon'ble Larger Bench, comprising of my lord the Hon'ble Chief Justice, undersigned and my learned brother Arbab Muhammad Tahir, J., judgment whereof has been authored and finalized which was transmitted to Hon'ble Chief Justice, even a note in this regard has been sent on 02.05.2023 to my lord the Hon'ble Chief Justice with request to list the case for announcement on 03.05.2023, despite whereof, case has not yet been listed till todate. On 07.05.2023 speculations were widely shared on social media regarding judgment. Therefore any further delay in release of the judgment singed by two members of the Bench who constitute a majority, could cause aspersion on the outcome of the case and impugn the confidentiality and integrity of the court process and public from the independence of the Court. The case has political ramification in the current scenario. The case has already been notified for announcement hence you are hereby directed to release the judgment of two members Bench today i.e. 09.05.2023 by all means and submit a compliance report, forthwith. Mohsin Akhtar Kayani Judge Registrar:"
4. It is beyond comprehension that despite the repeated requests made in explicit terms by author of the majority judgment, the office failed to issue cause list for pronouncement of judgment, therefore, the judgment authored by Mr Justice Mohsin Akhtar Kayani, learned Senior Puisne Judge, agreed to by one of us (Mr Justice Arbab Muhammad Tahir, J.), was uploaded on the official website of the Islamabad High Court upon their direction, which too was taken down from the website without their prior approval or consent.
---
## Page 3
5. There is an "office note" on file, initiated by the learned Chief Justice, wherein while referring to a "tweet" of a journalist and uploading of the judgment of two members on the website, the learned Chief Justice recused himself from hearing the petition. For the sake of convenience, the same is reproduced below.- (Office Note dated 10.05.2023) "The matter was reserved on 30.03.2023, where-after, being the Bench Head and as agreed by other members to the author Judge, sent proposed opinion to the other members of the Bench; however, in return, signed opinions alongwith a note was received, to the effect that judgment be announced on 03.05.2023. The signed opinion was never discussed, which is against the settled practices and judicial norms. 2. On 08.05.2023, my attention was drawn towards tweet by a journalist Shaheen Sehbai which was to the effect that in the instant case, two members have told me (Chief Justice) about their view and the Chief Justice is being pressurized to disqualify Imran Khan. The referred tweet casts aspersions which are frivolous and baseless. Moreover, the tweet is against the law i.e. commenting about the result of a case, when same is pending; also the tweet breaches the privacy of the reserved matter. 3. Today, without the announcement of judgment or issuance of list for announcement or otherwise intimation to parties and their counsels and third Member (Chief Justice) having signed the same, the opinion of two Judges was uploaded alongwith two office notes, which does not constitute judgment of the Court and is against the rules and the norms. 4. In view of the above, since there is no judgment of the Court in the matter in hand, hence I do not wish to be part of the Bench. Office is directed to place the file after doing the needful for reconstitution of the Bench. The signed opinions of the two honourable members with notes shall be sealed." 6. The learned Chief Justice, vide the office note dated 10.05.2023, not only recused himself from hearing the case after sharing his draft judgment (holding the petition as maintainable) with co- members and receiving back their separate judgment, but acted as a court of appeal over the judgment of two co-members of the Bench, by issuing directions to the office for reconstitution of the Bench, which had the effect of nullifying judgment of the majority. Three reasons have been offered for dissolution of the Bench, (i) a tweet by a journalist allegedly to be breaching "privacy" of a reserved judgment, (ii) in response to his draft judgment, receiving back signed judgment of two members of the Bench, and (iii) uploading of the judgment of the two co-members on the official website. It is pertinent to mention here that in his office note, the learned Chief Justice has himself repelled the allegations made by a journalist, by specifically mentioning that the same were "baseless", then how it violated privacy/integrity of a reserved judgment. The alleged breach of privacy or secrecy of a reserved judgment cannot compel the court to abort the process of dispensation of justice to the litigating parties. In fact courts are bound to decide cases in accordance with law and every citizen knows what the law is. We cannot control litigants thought process to guess the possible outcome of a pending case. Even in the office note, the learned Chief Justice could not point out which particular judicial norm, superior than independence of a judge to form his own opinion, has been violated. In the recent past, we all observed that learned Members of the Larger Bench of the Supreme Court in Suo Motu Case No.01/2023 (in matter of holding General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa) released their own independent opinions before pronouncement of the order of the Court and were also debated upon in the mainstream electronic/print media, but this was validly not considered as breach of judicial norms and the Bench of the Supreme Court was not dissolved on the ground of "breach of privacy of the judgment". It is admitted in the above reproduced office note of the learned Chief Justice that a judgment was drafted, duly shared with the other co-members, to
---
## Page 4
which they did not agree and rendered their own judgment. To address the point of uploading the judgment without issuance of cause list, it is mentioned here that due to refusal of the Registrar of this Court to issue cause list despite written requests in terms of Order XX CPC by the learned Senior Puisne Judge, the two members of the Bench were compelled to release of their judgment on the official website. The release of the judgment of majority without issuance of cause list was not a "fault" or "lapse" but due to "defiance" of the Registrar of this Court. 7. In the facts and circumstances of this case, the following questions need determination.- (i) Can this Bench rehear and re-adjudicate a petition, which has been declared to be not maintainable by a Bench (comprising of equal members, having the same jurisdiction), though by majority and whether this Bench is vested with powers to suo motu review the judgment of majority and arrive at a different conclusion on merits? (ii) What is the legal effect of the opinion of majority of the earlier Bench, particularly when someone makes speculations regarding final outcome of cases having political consequences. (iii) Can the Chief Justice use his administrative powers as a tool to suppress dissent? 8. A constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter the "Constitution") is procedurally governed by the provisions of the Code of Civil Procedure, 1908 (hereinafter "C.P.C."). Sub-section (2) of section 9 of C.P.C. defines "judgment" as meaning the statement given by the Judge of the grounds of a decree or order. The points for determination and decision thereon on the basis of available record are the essential features of a judgment/order. The Supreme Court in the case titled "Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others" [1986 SCMR 1736], has held that the detailed reasons necessarily include the law and the grounds on which the decision is founded, apart from the reasons appearing from the case set out by the parties. In the case titled "M.D. Civic Centre Hyderabad v Abdul Majeed & other" [PLD 2002 S.C. 84], it was held that "judicial pronouncement (judgment) by a Judicial Officer should be based on the evidence/material available on record and the reasons must be outcome of the evidence available on record and on the basis of such reasons conclusion should be drawn and if the order lacks of these ingredients it cannot be termed to be a judicial verdict (judgment) in stricto senso and at the best such pronouncement can be termed to be an administrative order incapable to settle controversy judicially between the parties. The judgment of the two members of the Larger Bench of this Court has determined a controversy in the light of submissions of the parties and material available on record, which if not disturbed by a competent appellate forum, has to be regarded as a "judgment" and shall not lose its efficacy merely for the reason that the Registrar of this Court refused to issue cause list, despite written request. Hence for all intents and purposes the lis in hand is a decided matter and not open for re- adjudication by the same forum. 9. There is no application by any party to the proceedings under any provision of C.P.C. seeking review or rectification of any clerical or arithmetical mistake in the order/judgment. It is settled law that an order/judgment can be reviewed only when an error is apparent on the face of record and it must be so manifest, so clear, that no Court could permit such an error to remain on record. If the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not competent. The circumstance that the view canvassed in the review petition is more reasonable than the view already expressed by the Court in the order of which review is sought would not be sufficient to maintain a review petition. Reliance is placed on the cases titled "Mahmood Hussain Lark & others v. Muslim Commercial Bank Limited & others" [2010 SCMR 1036] and "Syed Wajihul Hassan Zaidi v. Government of the Punjab and others" [PLD 2004 SC 801]. 10. The Supreme Court in the case titled "Dr. Imran Khattak v. Ms Sofia Waqar Khattak, PSO to Chief Justice and others" [2014 SCMR 122], has held that this Court is not vested with suo motu
---
## Page 5
powers. As discussed above, the power of review is also limited, that too cannot be invoked to alter the conclusion drawn on merits. Above all we are not setting in appeal over the original judgment of the Bench. The Bench of three Judges (including one of us) had finally heard the petition on the question of maintainability. As per judgment of two members of the Bench the petition was not maintainable and reasons have been recorded in support thereof, which judgment is available on record, whereas, opinion of one member (the learned Chief Justice) became the minority view. Unless such findings are disturbed in appeal by an appellate forum and the matter is remanded, we cannot re-adjudicate the same petition again due to the mere fact that composition of the Bench has changed just before pronouncement of the judgment. 11. The Chief Justice of this Court is vested with power to "constitute" benches for hearing of matters coming before him. But the power once exercised, the Chief Justice cannot subsequently alter or modify constitution of such a Bench unless the matter is referred back to him through a judicial order. There is difference between "constitution", "reconstitution" and "dissolution" of benches. This distinction has a very close nexus with the nature and stage of proceedings. If any member of a bench is not available or he has disqualified himself to hear such matter on any ground or the bench refers the matter back to the Chief Justice due to any reason for reconstitution of Bench, then the Chief Justice regains the authority and can pass appropriate orders. But when the matter is heard, arguments are concluded and the case is reserved for judgment then the Chief Justice is divested of the power to transfer the case from one bench to another or reconstitute/dissolve such Bench. It is then regarded as use of administrative power to manipulate outcome of a judicial proceedings. In a nutshell, no power is vested with the learned Chief Justice to reconstitute a Bench once it has been constituted, unless such a Bench requests its reconstitution through a judicial order. The matter becomes more serious when the Chief Justice himself is member of the Bench. He is then aware of the possible outcome of a judicial matter. It becomes even more serious when the learned Chief Justice authors a Judgment and such draft is circulated to co-members of the Bench while the co-members of the Bench show disagreement with opinion of author/Chief Justice, render their own judgment and duly communicate the same to the Chief Justice. 12. Dissent is a "precious right" of a Judge, which he exercises whenever he believes it to be necessary. It is an opportunity for a Judge to express his discontent with the decision handed down by the co-member(s) of the Bench. It is an ever-present litmus test for the contrary opinion which it must be able to pass again and again. The difference of opinion between members of the Bench cannot be a valid ground for reconstitution of the Bench. Judges as members of a Bench, including the learned Chief Justice, are equally entitled to form their own independent view. Their independence cannot be curtailed through administrative means. The learned Chief Justice has observed in his note that the two members of the Larger Bench after receiving his draft judgment, without consulting him, sent their own signed judgment. Not agreeing with opinion of the Chief Justice and expression of independent view is neither a sin nor violation of any settled practice. Judicial practices evolve for safeguarding the interest of justice, but these practices cannot cage independence of a Judge to form opinion in accordance with law as per his own conscience. The learned Chief Justice had formed an opinion that the petition is maintainable, to which the other two members disagreed. The act of reconstitution of the Larger Bench by the learned Chief Justice, after receiving separate judgment from two co-members of the Bench, prima facie, qualifies as stifling the independent judgment of two co-members of the Bench. The learned Chief Justice was free to express his own judicial opinion, but could not have blocked judgment of the majority by a single stroke of his pen on administrative side through reconstitution of the Bench. In this case, the learned Chief Justice, being author of the minority view, could not have used his administrative power to suppress the judgment of the majority.
---
## Page 6
13. As noted above, the findings of a Judge, if found to be based on defective legal reasoning can be corrected in appeal by appellate authority. Every day we observe that lawyers and litigants after arguing political cases before Benches of this Court talk to the media and express their expectation of getting favourable decision. We cannot carve out an excuse out of such media talk for aborting the process of dispensation of justice. There are two parties to the proceedings, the plaintiff and the defendant. They join proceedings before a Court with the optimism of getting favourable verdict. But the Court does, what is right and in accordance with law. It may be against the claimant, favourable to the defendant. What if before pronouncement of judgment by the Court, the claimant publically claims that the decision is in favour of the defendant (in order to block a decision in favour of defendant) and posts such opinion on print, electronic or social media. Would the court step back and stop dispensing justice fearing baseless potential allegations of connivance. The cases pending before courts having political consequences are frequently debated upon in the mainstream print/electronic media as well as social media. Can we allow our judicial findings to be controlled by speculations of parties to a case or their proxies and ignore the mandate of law. Obviously not. If this Court starts falling victim of such silly tactics, then we will be allowing evil minds to interfere with and engineer possible outcome of judicial matters, besides making it impossible for the Court to act as independent arbiter of disputes. Every litigant expecting unfavourable decision from a court would publicly level baseless allegations and influence the outcome of judicial proceedings including constitution/dissolution of Benches. If we set such precedents, it will erode public trust and confidence in the rule of law, administration of justice and independence of judiciary. 14. The Supreme Court, in the case titled "Independent Media Corporation v. Federation of Pakistan, etc." [PLD 2014 SC 650] while referring to Article 4 of the Code of Conduct prescribed by the Supreme Judicial Council for Judges of the Superior Courts has observed that only such persons can trigger recusal of a Judge from hearing a particular case, who are considered to be close by a Judge. In the referred case, the Supreme Court re-affirmed and reproduced the following passage from the judgment titled "General (R) Pervez Musharraf v. Nadeem Ahmed (Advocate) and another" [PLD 2014 SC 585].- "6. Judges, it may be noted, do encounter allegations of bias and also receive criticism some of which may be expressed in civil language while others may be through hate speech or outright vilification based on malice. In either event, the Judge by training does not allow such vilification to cloud his judgment in a judicial matter. Even extremely derogatory language used against Judges does not, by itself create bias, as is evident from the negligible number of contempt cases based on scandalisation of Judges, (none leading to a sentence) cited in the case titled Baz Muhammad Kakar vs. Federation of Pakistan (PLD 2012 SC 923). Courts, therefore, cannot decide questions of perceived bias by accepting the individual and personal views of an aggrieved petitioner and thus recuse from a case ... if a subjective perception of bias could be made a basis for recusal of a Judge ... it would be very simple for any litigant not wanting his case to be heard by a particular Judge to start hurling abuses at such Judge and thereafter to claim that the Judge was biased against him." In the referred case, the Supreme Court further observed that "these instances show that there can be reasons, other than those that meet the eye, which may motivate a remark or comment. If judges do not deal firmly with such remarks (where unfounded) this may encourage unscrupulous or uninformed elements into saying things which may erode the standing, respect and credibility of the Court... Courts are not to succumb to any remark, defamatory or otherwise. It is the conscience of the Judge himself which must determine his decision to sit on a Bench or not." 15. The basis of disqualification for a judge to hear a case is "personal bias or prejudice" of such a nature as would necessarily render him unable to exercise his functions impartially in a particular
---
## Page 7
case, and this must be shown as a matter of fact and not merely as a matter of opinion. In the absence of any constitutional or statutory bar, a Judge is not disqualified merely for the reason that speculations are being made regarding the possible outcome of a judicial matter. Separation of power ensures judicial independence vis--vis other pillar of the state as well as within the institution of judiciary. Horizontal independence within a judicial institution is equally important. No judge can attempt to influence the outcome of a matter by trying to affect the opinion of a peer, either directly or indirectly. In the case titled "Justice Qazi Faez Esa and others v. President of Pakistan and others" [PLD 2022 SC 119], it has been held that history is witness to the fact that the fundamental rights, particularly of those who are the most vulnerable, becomes the first causality in societies where the judiciary comprises those who were compromised and thus susceptible to being influenced from those wielding power and influence. The edifice of the judicial independence rests on the assumption that every Judge besides being fair and impartial is fiercely independent and is free to uphold his judicial views. This judicial freedom is fundamental to the concept of the rule of law. Any attempt to muffle judicial independence or to stifle dissent shakes the foundation of a free and impartial judicial system, thus eroding public confidence on which the entire edifice of judicature stands. Public confidence is the most precious asset of this organ of the state, which controls neither the sword nor the purse. A judge whose decisions are dictated not by the fidelity to the letter and spirit of the law but based on what he deems to be palatable to the Government would cause irretrievable damage to the public confidence in the judiciary, and consequently jeopardize its credibility and moral authority. Judges…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.