Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2023-12-31, officially reported as 2024 PLD 102. In this matter between the Petitioner and the Respondent, 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.

Full Judgment Text & Judicial Ruling

Court Name: Supreme Court of Pakistan Judge(s):Amin-Ud-Din Khan, Irfan Saadat Khan, Jamal Khan Mandokhail, Syed

JUDGMENT

Reported As: 2024 SCP 101, PLD 2024 Supreme Court 698 Result: Order Accordingly Judgment

JUDGMENT AMIN-UD-DIN KHAN, J. Through these appeals filed under section 5 of the Supreme Court (Practice & Procedure) Act, 2023 read with Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution'), appellants have challenged the judgment passed by the learned two member bench of this Court dated 27.06.2023 in Constitution Petition No. 19 of 2020 filed under Article 184(3) of the Constitution by the appellants of ICA No. 2 of 2024 which was dismissed in limine. 2. According to the brief facts of the case, appellants of ICA No. 2 of 2024 filed a petition under Article 184(3) of the Constitution against the Supreme Judicial Council ('SJC'), Registrar of the Supreme Court, the President of Islamic Republic of Pakistan and Justice (R) Mian Saqib Nisar with the following prayer: "In view of the above, the Petitioners most respectfully pray that this Honorable Court may graciously be pleased to: A. Direct the Honorable Council to take up References and to render its opinion on the allegations of misconduct contained therein and report its opinion to the President under Article 209(6) of the Constitution. B. Pass directions to structure the Honorable Council's discretion in relation to the priority, listing and hearing of complaints/references and to ensure that the eventual findings of Honorable

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Council are publicly disclosed and direct the Honorable Council to amend the Supreme Judicial Council Procedure of Enquiry 2005 accordingly. C. Give any other directions or pass any interim orders that are required and are necessary for the effective implementation of Article 209." 3. Office raised some objections on the petition filed under Article 184(3) of the Constitution, which were contested and after the acceptance of Miscellaneous Chamber Appeal, the petition was numbered as 19 of 2020, which was heard by the learned two member bench of this Court on 13.06.2023 and the judgment was announced as dismissed in limine on 27.06.2023. Hence, these appeals, ICA No.2 of 2024 by the petitioners of Constitution Petition No.19 of 2020 and ICA No. 1 of 2024 by the Federation of Pakistan.4. The office has noted that ICA No.1/2024 is barred by 180 days whereas ICA No. 2/2024 is barred by 187 days. On the first date of hearing before this Court on 31.01.2024 after hearing the learned counsel for the appellants, notice was issued to the other side subject to limitation. As the case of Federation is that interpretation of an Article of the Constitution has been made through the impugned judgment and without any notice required under Order XXVII-A of the Code of Civil Procedure, 1908 to the Attorney General for Pakistan and even without any notice to the Federation or the respondents of the Constitution Petition, same was decided in limine, though the petition was dismissed but some interpretation of Article 209 of the Constitution was made, therefore, order impugned is not sustainable under the law. Notice was also issued in ICA No.2 of 2024 as both the appeals were being heard together. In CMA No. 555 of 2024 the case of the appellant is that without any notice the matter was decided, therefore, the appellant was having no knowledge of the impugned judgment holding the field and it was only after the SJC's meeting dated 09.01.2024 when the impugned judgment dated 27.06.2023 was brought to the knowledge of the Attorney General for Pakistan and in consequence thereof the instant appeal was filed. It is further pleaded that as substantial questions pertaining to interpretation of the Constitution particularly Article 209(6) are involved, therefore, it is imperative that delay in filing the instant appeal may be condoned to prevent the ends of justice being defeated. 5. Learned counsel for the appellants in ICA No. 2 of 2024 argued that after hearing of their petition, the judgment was reserved and their counsel fell seriously ill, therefore, the announcement of judgment could not be attended by her nor it was in her knowledge and even it was not conveyed to the appellants. It is further argued that the Supreme Court (Practice & Procedure) Act, 2023 came into force on 21.04.2023 and even before its enforcement it was suspended by the order of learned eight member bench of this Court through an injunctive order dated 13.04.2023 while hearing Constitution Petition Nos.6 of 2023 etc. and subsequently the said petitions i.e. Const. Petition Nos. 6 of 2023 etc. were dismissed by the learned Full Bench of this Court on 11.10.2023 except the application of section 5 with retrospective effect was not approved by majority, therefore, actually the application of Act came into field from the announcement of the judgment of dismissal of Constitution Petitions dated 11.10.2023 and further that if ICA No.1 of 2024 on the basis of the ground mentioned for condonation is heard on merits, their appeal be also heard on merits. In the above circumstances, we condone the delay in filing of both these appeals. CMA No.555 of 2024 and CMA No.1695 of 2024 are allowed and disposed of. 6. The Secretary, SJC appeared and told the Court that SJC has received 15 complaints against Ex- CJP Mian Saqib Nisar on 12 October, 2018 which were taken up by the Council on 14.2.2019 and dismissed for being infructuous because Justice Mian Saqib Nisar had retired on January 17, 2019. 7. Now we come to the merits of the case. On 12.02.2024, after hearing the learned counsel for the appellants in ICA No. 2/2024, notice under Order XXVII-A of the CPC was issued to the Attorney General for Pakistan, who waived the issuance of formal notice and accepted the same. After hearing the learned counsel for the appellants in ICA No. 2 of 2024 as well as learned Attorney

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General for Pakistan we were of the view that both are on the same page and showing one side of the picture to this Court, therefore, it was felt necessary to appoint some Amicus Curiae for assistance of the Court to show both the sides of the matter in issue and render their precious opinion about matter in issue and office was directed to send a letter of request along with copy of order to M/s. Makhdoom Ali Khan, Sr.ASC, Khawaja Muhammad Haris, Sr.ASC, Khalid Javed Khan, ASC, Abdul Moiz Jaferii, Advocate High Court and Faisal Siddiqi, ASC on the following questions of law which were framed by the learned Attorney General for Pakistan and produced in the order dated 12.02.2024. Though the learned counsel for the appellants in ICA No. 2 of 2024 also sent some questions of law through CMA No. 1221 of 2024 but as the same were received late, therefore, could not be incorporated in the said order. The questions of law framed by the learned AGP are reproduced as under: A. Whether pending proceedings before the Supreme Judicial Council (the 'SJC') do not stand abated on account of retirement and resignation of a Judge? B. Whether a Judge who retires or resigns during pendency of proceedings against him/her before the SJC should be allowed to escape the consequences of removal? C. Whether resignation by a Judge during pendency of proceedings against him/her before the SJC tantamount to circumvention/avoidance of accountability enshrined and envisaged under Article 209 of the Constitution of the Islamic Republic of Pakistan, 1973? D. Whether circumvention of proceedings under Article 209 of the Constitution would result in erosion of public trust in the Judiciary? 8. The learned Amicus Curiae appointed by the Court namely Makhdoom Ali Khan, Senior ASC and Mr. Khalid Javed Khan, ASC recused, therefore, Mr. Faisal Siddiqui, ASC and Mr. Abdul Moiz Jafferii, AHC were heard. Learned Muhammad Akram Sheikh, Sr.ASC also offered his assistance as Amicus Curiae, he was also heard. Learned Attorney General for Pakistan has reiterated his argument that the impugned order without notice under Order XXVII-A of the CPC to the Attorney General for Pakistan is defective one and not sustainable under the law; that through the impugned judgment Article 209 has been interpreted in a way that the jurisdiction and powers of the SJC have been curtailed in case the Council has taken the cognizance of a complaint/reference/information against a Judge and started proceedings after notice to the Judge and on his resignation if it is declared that the power to proceed with the matter by the Council ends, will be to circumvent the powers of the Council which is not the correct interpretation of Article 209, therefore, AGP has relied upon "Federal Government of Pakistan through the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad versus M.D.Tahir, Advocate and 12 others" (1989 SCM R 2069) to argue that question of public importance relating to the interpretation of the Constitution needed the consideration of this Court with regard to necessity of issuance of mandatory notice of Order XXVII-A of the CPC. He has also relied upon "Federal Government of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others versus Aftab Ahmad Khan Sherpao and others" (PLD 1992 SC 723), "Federal Public Service Commission and others versus Syed Muhammad Afaq and others" (PLD 2002 SC 167), "Pakistan Automobile Corporation Limited through Chairman versus Mansoor-ul-Haque and 2 others" (2004 SCMR 1308), "Superintendent Central Jail, Adyala, Rawalpindi versus Hammad Abbasi" (PLD 2013 SC 223) and "Heman Santlal v. State of Bombay" (AIR (38) 1951 Bombay 121). He has also argued in the light of legislative history/constitutional comparison, right from Government of India Act, 1935, Judicial Committee Act, 1833, Constitution of Pakistan, 1956, Constitution of Islamic Republic of Pakistan, 1962, Interim Constitution of the Islamic Republic of Pakistan, 1972, Constitution of Pakistan (pre-18th Amendment), Constitution of Pakistan (Post-18th Amendment) and the Constitution of India. He has also referred the provisions of Code of Conduct to be observed by the Judges of the Supreme

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Court and High Courts as notified on 02.09.2009 with regard to Judicial Accountability while relying upon "The State versus Mr. Justice Akhlaque Husain, Judge of the High Court of West Pakistan" (PLD 1960 SC Pak. 26), "Justice Qazi Faez Isa and others versus The President of Pakistan and others" (PLD 2021 SC 1), "Justice Qazi Faez Isa and others versus President of Pakistan and others" (PLD 2022 SC 119) and an American Jurisdiction Case titled "Johnson v. United States" reported as 208 (Fed Cl.1948), prayed that the appeal be allowed and in the instant case at least it be declared that during the proceedings by the SJC retirement as well as resignation by a Judge cannot circumvent the proceedings before the SJC. Learned AGP has further argued that tenor of the impugned judgment shows that it is the SJC to conduct its proceedings, no direction can be given by the Supreme Court by stating that SJC is independent to proceed with the matters. While referring paragraph No. 95 of Shaukat Aziz Siddiqui's case from the judgment of this Court reported as PLD 2018 SC 538 the prayer of open proceeding by SJC was not acceded to, whereas the prayer made by Justice Mazahar Ali Akbar Naqvi in the misconduct proceedings against him was accepted. Therefore, it is SJC to proceed with the matter as it wants is within its jurisdiction. 10. Further stated that it is a case of first impression where Government is an aggrieved party, therefore, the appellant should have been heard in the petition. While referring Sections 16 and 16-A of the Supreme Court Judges (Leave, Pension and Privileges) Ordinance, 1997 with regard to payable pension and pension on re-employment etc. states that the retired Judge can be re- employed, therefore, as per the stance of the Federation it is necessary that once the proceedings by the Supreme Judicial Council start against a Judge on a complaint by any person or on its own or on a reference sent by the President, the proceedings shall reach to a logical end despite the fact the Judge resigns during those proceedings or retired after attaining the age of superannuation. 11. Learned counsel for the appellants in ICA No.2 of 2024 while adopting the arguments advanced by the learned AGP has further stated that in fact the complaint was filed by the appellants when Mr. Justice Mian Saqib Nisar was Chief Justice of Supreme Court of Pakistan but unfortunately till his retirement the complaint/reference was not taken up by the SJC, therefore, on his retirement the appellants were forced to file a petition under Article 184(3) of the Constitution, which has been decided by the two member bench of this Court which is under challenge in these appeals. Prays for acceptance of the appeal and setting aside of the order passed by this Court while dismissing the petition of the appellants under Article 184(3) of the Constitution as well as the order of the SJC and prays even if the Judge has retired after superannuation or has resigned, the reference or complaint once filed cannot be consigned to record or dismissed on the ground that the Judge has been retired after superannuation or has resigned from his office. 12. Learned Amicus Mr. Faisal Siddiqui has firstly stated that as the impugned judgment is defective on the basis that notice under Order XXVII-A of the CPC was not issued to Attorney General for Pakistan, therefore, matter be sent back for re-decision after requisite notice. In the alternate initially given his opinion that with the retirement on superannuation or resignation of a Judge, the proceedings of the SJC automatically come to an end and no complaint or reference can be proceeded with by the SJC after the retirement or resignation of a Judge either the proceedings started in his tenure serving as a Judge or pending at that time. While concluding his submissions and opinion stated that to the extent of continuation of proceedings by the SJC in case the cognizance has been taken and proceedings started against a Judge who retires or resigns may continue for a logical end but for the other questions stated that the very important questions of public importance as well as relating to independence of judiciary are concerned, therefore, same may be decided in an appropriate matter in future. The other learned Amicus Abdul Moiz Jafferii is of the view that the retirement as well as resignation by a Judge does not effect upon the pendency of any reference or complaint against a Judge even if the SJC has not yet taken the

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cognizance of the matter. Just filing of complaint is sufficient before his/her retirement or resignation. It is the prerogative of the SJC to proceed with the matter. 13. On the other hand, Khawaja Muhammad Haris stated as he is representing a Judge before SJC against whom proceedings are going on despite the fact that Judge has resigned, his opinion may not be considered as biased and not an independent opinion, therefore, he is before the Court to give his opinion if it is taken as independent opinion, he was asked to give the opinion, as it is to assist the Court as friend of the Court. He has submitted lengthy arguments while relying upon the case Law reported as "Chief Justice of Pakistan Iftikhar Muhammad Chaudhry versus President of Pakistan through Secretary and others" (PLD 2010 SC 61), "The State versus Mr. Justice Akhlaque Husain, Judge of the High Court of West Pakistan" (PLD 1960 SC Pak. 26), "Justice Shaukat Aziz Siddiqui and others versus Federation of Pakistan through Secretary Law and Justice, Islamabad and others" (PLD 2018 SC 538), "The President versus Mr. Justice Shaukat Ali" (PLD 1971 SC 585), "Muhammad Ikram Chaudhry and others versus Federation of Pakistan and others" (PLD SC 1998 SC 103), "Syed Zafar Ali Shah and others versus General Pervez Musharraf, Chief Executive of Pakistan and others" (PLD 2000 SC 869), "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others versus Federation of Pakistan and others" (PLD 1996 SC 324), "Justice Qazi Faez Isa and others versus President of Pakistan and others" (PLD 2022 SC 119), "Justice Qazi Faez Isa and others versus The President of Pakistan and others" (PLD 2021 SC 1), "Mr. Justice Ghulam Hyder Lakho, High Court of Sindh, Karachi and others versus Federation of Pakistan through Law, Justice and Parliamentary Affairs, Islamabad and others" (PLD 2000 SC 179), "Khan Asfandyar Wali and others versus Federation of Pakistan through Cabinet Division, Islamabad and others" (PLD 2001 SC 607), "Imran Ahmad Khan Niazi versus Federation of Pakistan through Secretary, Law and Justice Division, Islamabad and another" (PLD 2024 SC 102), Articles 209-211 of the Constitution, Supreme Court Judges (Leave, Pension and Privileges) Order, 1997, "K.Veeraswami vs. Union of India and others" (1991) 3 SC Case 655, "Krishna Swami versus Union of India and others"(1992) 4 Supreme Court Cases 605, "Union of India etc. versus Gopal Chandra Misra and others, etc." (AIR 1978 Supreme Court 694), Constitution of India 9th Edition, Constitution Law of India, Independence and Accountability of the Indian Higher Judiciary as well as with regard to constitutional history of various countries and opined that as per his opinion the proceedings with the retirement or resignation of a Judge come to an end when the Council cannot recommend for removal of a Judge, therefore, as per his opinion it will be a futile exercise by the SJC. 14. The other learned Amicus Mr. Muhammad Akram Sheikh has addressed the Court and has given the opinion that as per his opinion the resignation or retirement of a Judge does not effect the proceedings pending before the SJC and he has given his opinion that for independence of judiciary and in accordance with the Islamic principles it is necessary that an effective method of accountability of a Judge which is available in the shape of SJC should be effective as well as without any clog even from any judgment of this Court that the SJC may have independence to proceed with the matter in accordance with law. As per his opinion the resignation or retirement does not effect the proceedings pending as well as reference or complaints available with the SJC. 15. We have considered the arguments advanced by learned counsel for the appellants as well as opinion rendered by the learned Amicus Curiae. 16. The first and foremost consideration before us is that as SJC is an independent constitutional body, it is the prerogative of the Council to proceed with the matter in accordance with the Constitution and the law. In the instant case the basic question is whether Article 209 envisages that by resignation of a Judge or retirement on superannuation the proceedings which are pending before the SJC will automatically come to end or it is the prerogative of the SJC to proceed with the matter. The Amicus Curiae who are of the opinion that with the resignation of a

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Judge, proceedings automatically end or become infructuous have banked upon their opinion or argument that when the misconduct proceedings are underway and the Judge resigns or is retired, his removal cannot be reported to the President, therefore, there is no need to continue the proceedings whereas the view of the learned AGP and learned counsel for the appellants in ICA No. 2 of 2024 as well as Mr. Muhammad Akram Sheikh and Abdul Moiz Jaffarii is on the basis that there is no clog available in Article 209 that the Council will be having no jurisdiction to proceed with the matter, when the judge retires on superannuation or resigns. Even reference is made to Sub Article 6(a) read with Sections 16 and 16-A of the Supreme Court Judges (Leave, Pension and Privileges) Order, 1997 to state that if the proceedings on the retirement or resignation of a Judge are automatically drop then even a complaint of serious misconduct which was underway and visibly proven, the SJC having a solid material with it, if cannot proceed further upon resignation or retirement of a Judge, the proceeding as well as the question will remain incomplete and unanswered in case the proceedings are not completed and the opinion of the Council is not reported to the President, it will be on record and while dealing with the matters section 16 and 16-A will be effected. We posed a question to the Amicus Curiae, who were having the view that the proceedings end with the superannuation or resignation of a Judge, if there are any proceedings of misconduct pending against a Judge of the High Court and he resigns in order to avoid the proceedings, whether he can be appointed/elevated as a Judge of the Supreme Court or Federal Shariat Court etc. thereafter, the answer of this query was 'yes', he can be appointed. The further question was, if upon completion of proceedings there is a report of misconduct with the President whether in that case the Judge of a High Court who resigns can be appointed as Judge of Supreme Court or Federal Shariat Court etc., the answer was that if the matter is brought in the knowledge of the Judicial Commission constituted under Article 175-A then he may not be appointed as Judge of the Supreme Court or the Federal Shariat Court. 17. We have noted that at the time of hearing of petition filed by the appellants of ICA No. 2 of 2024, the Judge had already been retired against whom complaints filed by the said appellants were pressed, though the complaint was filed against the Judge when he was a Chief Justice but unfortunately the complaint could not be placed before the SJC and after the retirement of said Judge when it was placed before the SJC same was dismissed as having become infructuous. The main consideration before the learned two member Bench of this Court while hearing the Constitution Petition was that the SJC has declared the complaint as having become infructuous, therefore, mainly the emphasis of the Court was upon the said point whereas it was not a case before the Court that after considering the complaint some steps were taken in the complaint i.e. issuance of notice to the Judge against whom complaint was filed or any reply or the response to the complaint, not it was the question before the Court that during the pendency of the complaint after issuance of notice by the SJC the effect of retirement of a Judge or resignation but the effect of the impugned judgment is that even if the complaint is pending after taking cognizance by the SJC, it abates on retirement of a Judge or resignation, therefore, Federal Government was aggrieved and filed the instant appeal, on which point we agree with the appellant. So far as other prayers like passing of direction to the SJC as prayer B in the original petition and prayer C are concerned, we are of the view that the SJC can consider all these points or same may be taken in any other suitable case as we are dealing with the matter in appeal when without any notice the original Constitutional Petition was dismissed by the learned two member Bench of this Court in limine. 18. In this view of the matter, we partially allow both the appeals, we are of the view that it is the prerogative of the SJC to proceed with the matter and the proceedings pending before the SJC which are initiated after issuance of notice to a Judge do not automatically drop or become

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infructuous on superannuation or resignation of a Judge. These are the reasons of our short order announced on 21.02.2024, which is reproduced: "For the reasons to be recorded later, the delay in filing both the appeals is condoned. Both the appeals are partially allowed to the extent that if the proceedings have already been initiated by the Supreme Judicial Council ('SJC') against a Judge, same shall not abate on his resignation or retirement, as the case may be, during such proceedings. It is the prerogative of the SJC to proceed with the matter accordingly. The impugned judgment is modified to that extent. This order is with the majority of four by one disagreeing (Syed Hasan Azhar Rizvi, J.) on the point of limitation as well as on merits." 19. These appeals are partially allowed in the above terms. I have also gone through the additional note added by Mr. J. Jamal Khan Mandokhail. I agree with the additional note. Judge I agree. However, I have appended my additional note. Judge I am disagreed and will file my separate note. Judge I agree with the findings of this judgment. Judge I agree with the findings recorded by my brothers namely Aminuddin Khan J. and Jamal Khan Mandokhail J. Jamal Khan Mandokhail, J.-I have had the privilege of going through the judgment authored by my learned brother Amin-un-Din Khan, J. Although, I fully subscribe to the conclusions…

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