Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2023-12-31, officially reported as 2025 PLJ 40. 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 Hasan

JUDGMENT

Reported As: 2024 SCP 112, PLD 2024 Supreme Court 746, PLJ 2025 SC 40 Result: Order Accordingly Judgment JUDGMENT Qazi Faez Isa, CJ. Justice Shaukat Aziz Siddiqui ('Justice Siddiqui') was the senior puisne judge of the Islamabad High Court when he was sent a show cause notice dated 31 July 2018 by the Supreme Judicial Council ('SJC'), under the Supreme Judicial Council (Procedure of Enquiry) 2005 ('the Procedure'). The show cause notice stated that he may have committed misconduct within the meaning of clauses (5)(b) and (6) of Article 209 of the Constitution of the Islamic Republic of Pakistan ('the Constitution'). The relevant portion of the show cause notice issued to Justice Siddiqui is reproduced hereunder: '1. You while addressing District Bar Association, Rawalpindi on 21.07.2018 have leveled the following serious allegations pertaining to Superior Judiciary and a state institution:- i) That ISI is fully involved in manipulation of judicial proceedings including marking of cases to Hon. Benches. ii) That ISI personnel approached Chief Justice Islamabad High Court and asked him not to let Mr. Nawaz Sharif and his daughter come out of prison before General Elections 2018 and not to include your lordship in the Bench; and that Chief Justice Islamabad High Court responded that the Bench will be constituted as per their desire. iii) That your lordship claimed to even have knowledge of the person who conveys messages to the Supreme Court. iv) That daily proceedings of Accountability Court were being reported somewhere, and that your lordship also knows the reason why the administrative control of Islamabad High Court as per statute was removed, so that no Judge could look into the proceedings. v) That your lordship was asked to give assurance that your lordship would give decision as per their request, and then references pending against your lordship would be closed.

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vi) That if your lordship decided cases according to their desire, your lordship would be made Chief Justice Islamabad High Court by September 2018. 2. Upon presentation of the transcript of your speech Hon. Chief Justice of Pakistan had been pleased to observe that the allegations leveled in the speech had cast aspersions and maligned the superior judiciary of the country, and berated its independence. It also implicates some other national institutions. The Hon. Chief Justice of the Islamabad High Court was asked to comment upon the veracity of the allegations leveled against him. He was also asked to obtain from your lordship the material/evidence available (if any) to be immediately transmitted to the office of Chief Justice of Pakistan for consideration and appropriate action if necessary. In response Hon. Chief Justice of the Islamabad High Court offered his comments vide letter dated 29.7.2018, wherein his lordship responded that vide letter dated 24.7.2018 your lordship was requested for provision of material/evidence but no reply has been received from your lordship. Regarding allegations leveled against Hon. Chief Justice of the Islamabad High Court, his lordship has categorically denied all the allegations. 3. The above act on your part amounts to misconduct as envisaged in the provisions inter-alia of Articles II, III, V & IX of the Code of Conduct prescribed by the Supreme Judicial Council.' 2. Prior to the issuance of the show cause notice the Registrar of the Supreme Court, who acted as the Secretary of the SJC, had submitted a note dated 23 July 2018 to the Chairman of the SJC, which is reproduced hereunder: 'On 21.07.2018 Hon'ble Mr. Justice Siddiqui addressed District Bar Association Rawalpindi. During the speech he stated that Judiciary was mainly responsible for the atmosphere of coercion and fear that prevailed in Pakistan. In addition he accused the ISI of approaching Chief Justice of Islamabad High Court regarding fixation of cases and exclusion of Justice Shaukat Aziz Siddiqui from certain Benches. Furthermore he stated that he had knowledge of the person through whom messages are conveyed to the Supreme Court of Pakistan. Copy of the transcript is placed at F/A. The speech has tended to accuse a sensitive state agency of manipulation of judicial processes which may result is erosion of public confidence in the Superior Judiciary. The matter is put up for your consideration and appropriate orders. Submitted please.' 3. As soon as the above note was submitted to the Chairman he, on the very same day that is 23 July 2018, wrote as under: 'The note put up by the Registrar and the transcript of the speech delivered by Mr. Justice Shaukat Aziz Siddiqui has been perused. The allegations leveled in the speech cast aspersions and malign the superior judiciary of the country and berate its independence. It also implicates some other national institutions. The Hon'ble Chief Justice of the Islamabad High Court, Islamabad may comment upon the veracity of the allegations leveled against him. He may also obtain from Mr. Justice Shaukat Aziz Siddiqui the material/evidence available with him (if any) to substantiate the allegations leveled in the speech. Such material/evidence (if any) and the comments of the Hon'ble Chief Justice may immediately be transmitted to the office of the undersigned in sealed cover for consideration and appropriate action, if necessary.' 4. The Chief Justice of the Islamabad High Court responded on 29 July 2018 and stated that he had written to Justice Siddiqui on 24 July 2018 'for provision of material/evidence available with him but no reply has so far been received.' The Chief Justice of the Islamabad High Court denied the allegations which Justice Siddiqui had levelled against him. 5. The Secretary of the SJC on 30 July 2018 submitted another note to the Chairman of the SJC, which is reproduced hereunder: 'A note had been submitted to Hon. Chief Justice regarding Hon. Mr. Justice Shaukat Aziz Siddiqui's address to District Bar Association, Rawalpindi on 21.07.2018. Text of the speech is enclosed in which inter- alia following allegations have been leveled: i) ISI is fully involved in manipulation of judicial proceedings including marking of cases to Hon. Benches. ii) He alleges that ISI personnel approached Chief Justice Islamabad High Court and asked him not to let Mr. Nawaz Sharif and his daughter come out of prison before General Elections and not to include Mr.

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Justice Shaukat Aziz Siddiqui in the Bench. Chief Justice Islamabad High Court responded that the Bench will be constituted as per their desire. iii) He alleges that he even has the knowledge of the person who conveys messages to the Supreme Court. iv) He alleges that daily proceedings of Accountability Court were being reported somewhere. He further alleges that he also knows the reason why the administrative control of Islamabad High Court as per statute was removed, so that no Judge could look into the proceedings. v) He alleges that he was asked to give assurance that he would give decision as per their request, and then references pending against him would be closed. vi) He alleges that if he decided cases according to their desire, he would be made Chief Justice Islamabad High Court by September. 2. Hon. Chief Justice of Pakistan/Chairman SJC had called for the response of Chief Justice of Islamabad High Court which has been received and placed on the file. He was also asked to procure evidence/material from Mr. Justice Shaukat Aziz Siddiqui but that has not been provided so far. 3. Submitted please.' 6. On the very day that the Chairman received the above note, that is 30 July 2018, he sought the opinion of Justice Asif Saeed Khan Khosa ('Justice Khosa') in terms of clause 7(1)(a) of the Procedure with regard to Justice Siddiqui, and on the same day (30 July 2018), Justice Khosa rendered the following opinion: 'The speech made by the Hon'ble Judge ostensibly offends against Articles II, III, V and IX of the Code of Conduct. I am, therefore, of the opinion that the matter requires an inquiry by the Supreme Judicial Council.' Again on the same day (30 July 2018) the Chairman of the SJC directed to 'Fix before the SJC in the meeting on 31/7/18 at 2.00 P.M.' the matter pertaining to Justice Siddiqui. On 31 July 2018 the SJC passed the following order: 'MIAN SAQIB NISAR, CHAIRMAN.- After having examined the record and also the opinion of our brother Hon'ble Mr. Justice Asif Saeed Khan Khosa and upon thoroughly discussing the matter while taking into consideration the material mentioned above we are inclined to issue a show cause notice to the respondent-Judge and send the relevant material to him calling upon him to explain his conduct within a period of 14 days from today. Let the matter be listed on 28.8.2018 for consideration of the reply of the respondent-Judge.' 7. The show cause notice dated 31 July 2018 was sent to Justice Siddiqui who submitted a Preliminary Reply on 15 August 2018 and followed it by an Added Reply on 27 August 2018. Justice Siddiqui did not deny having addressed the District Bar Association, Rawalpindi nor contested the correctness of the transcript of his speech, which was provided to him with the show cause notice. The SJC considered the two replies submitted by Justice Siddiqui to the show cause notice and on 14 September 2018 'decided to further proceed with the matter'. The SJC also directed that notice be issued to the Attorney-General for Pakistan 'for conducting the reference'. The learned Mr. Anwar Mansoor Khan was then the Attorney- General for Pakistan and conducted the reference. On 1 October 2018 the SJC passed the following order: 'MIAN SAQIB NISAR, CHAIRMAN.- The contents of the transcript of the respondent-Judge's speech have been put to him and his learned counsel, both of whom admit the correctness thereof. The specific portions of the speech which may tantamount to misconduct were thread barely discussed with the learned counsel who has been given ample opportunity to provide an explanation and respond thereto. We have also heard the learned Attorney General for Pakistan. After a thorough consideration of the contents of the speech and the written replies of the respondent-Judge to the show cause notice, the matter is adjourned to 8.10.2018 for further deliberations.' And, on 8 October 2018 the SJC issued the following order: 'MIAN SAQIB NISAR, CHAIRMAN.- After due and extensive deliberations the opinion has been formed by the Council, for the finalization of the report. To come up on 11.10.2018. C.M.A.No.5/2018:

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2. In view of the opinion so formed, this application of the respondent-Judge for holding open trial in the matter is dismissed.' 8. Justice Siddiqui was provided one hearing (on 1 October 2018) by the SJC. The SJC's 'REPORT under Article 209(6) of the Constitution' is dated 11 October 2018, comprises of 39 pages and it is authored by Justice Khosa; the Chairman (Chief Justice Mian Saqib Nisar) and the other Members of the SJC (Justice Gulzar Ahmed, Judge of the Supreme Court, Justice Ahmed Ali M. Shaikh, Chief Justice, High Court of Sindh, and Justice Muhammad Yawar Ali, Chief Justice, Lahore High Court) concurred with it. The Report concluded by stating that 'Justice Siddiqui had not only violated some express provisions of the Code of Conduct but he had also displayed conduct unbecoming of a Judge and had violated the traditional requirements of behavior expected of a Judge of the superior Court.' The SJC rendered the following opinion: 'OPINION 'This Council is unanimously of the opinion that in the matter of making his speech before the District Bar Association, Rawalpindi on 21.07.2018 Mr. Justice Shaukat Aziz Siddiqui, Judge, Islamabad High Court, Islamabad had displayed conduct unbecoming of a Judge and was, thus, guilty of misconduct and he is, therefore, liable to be removed from his office under Article 209(6) of the Constitution of the Islamic Republic of Pakistan, 1973.'[1] 9. The Report/Opinion of the SJC was submitted to the President of Pakistan[2] who apparently was advised by the Prime Minister[3] and his Cabinet of Ministers and the Government of Pakistan through Secretary, Ministry of Law and Justice issued Notification[4] which removed Justice Siddiqui from his office with immediate effect. 10. Justice Siddiqui had filed this Constitution Petition on 26 October 2018 under Article 184(3) of the Constitution, but it was not numbered because of the objections raised by the office of this Court. Justice Siddiqui challenged the objections by filing a civil miscellaneous appeal (CMA No. 140/2018), which was allowed by this Court vide order dated 25 March 2019 and it was ordered that his petition be numbered, which was numbered as Constitution Petition No. 76/2018. The Islamabad Bar Association and the Karachi Bar Association also filed constitution petitions, respectively bearing numbers 15 of 2020 and 2 of 2021, which supported Justice Siddiqui's petition and objected to his removal without first holding an inquiry. Learned counsel Mr. Salahuddin Ahmed represented the two bar associations. 11. The matter was listed for hearing before a five-Member Bench headed by Justice Umar Ata Bandial on 9 December 2020, 28 January 2021, 31 May 2021, 2 June 2021, 8 June 2021, 10 June 2021, 11 June 2021, 6 December 2021, 7 December 2021, 14 December 2021, 10 March 2022, 15 March 2022 and 13 June 2022, when it was ordered that they will be treated as 'partly heard' and should be listed 'for further hearing on 14.06.2022 at 12.30 pm.' However, the petitions were not listed for hearing on 14 June 2022, and for the next year and a half. The petitions eventually came up for hearing before the present Bench on 14 December 2023, when it was noted that: 'Earlier these petitions were heard by a five-Member Bench but three members of the Bench have retired, and the remaining two Members did not want to continue to be part of the Bench, therefore, this Bench was constituted.' 12. The question of the maintainability of these petitions was raised because Article 211 of the Constitution stipulates that 'removal of a Judge under clause (6) of Article 209 shall not be called in question in Court'. Learned senior counsel Mr. Hamid Khan and learned Mr. Salahuddin Ahmed submitted that in similar cases the Supreme Court had held that the bar contained in Article 211 does not protect acts which are mala fide or coram non judice or were acts taken without jurisdiction, and in such circumstances the Supreme Court has exercised jurisdiction. In this regard reference was made to the cases of Justice Shaukat Siddiqui v President of Pakistan,[5]Justice Qazi Faez Isa v President of Pakistan[6] and Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry v The President of Pakistan,[7] where it was held that: '102. Having thus looked into the question of jurisdiction of this Court vis--vis the Supreme Judicial Council, I would conclude as under:-

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a) that the Supreme Judicial Council which comprises of the Chief Justice of Pakistan (except when the reference be against him) and two most senior Honourable Judges of this Court and two most senior Honourable Chief Justices of the High Courts, is a forum entitled to the highest of respect; b) that the said Council, however, can not be conceded the status of a court; c) that the ouster clause of Article 211 of the Constitution would not protect acts which were mala fide or coram non judice or were acts taken without jurisdiction; d) that in situations of extraordinary nature, the S.J.C. would be amenable to the jurisdiction of this Court under Article 184 of the Constitution; and e) that the principle of comity among Judges of the Superior Courts is only a rule of propriety and could never be considered an impediment in the way of providing justice to an aggrieved person.' 13. The United States Supreme Court has defined coram non judice. In the Dynes v Hoover[8] it held that: 'It is only where a court has no jurisdiction over the subject-matter, or, having such jurisdiction, is bound to adopt certain rules in its proceedings, from which it deviates, whereby the proceedings are rendered coram non judice, that an action will lie against the officer who executes its judgment.' In Dred Scott v Sanford[9] the United States Supreme Court held that any action taken beyond what the Constitution and laws have authorized would be coram non judice: 'But as this court is one of limited and special original jurisdiction, its action must be confined to the particular cases, controversies and parties, over which the Constitution and laws have authorized it to act; any proceeding without the limits prescribed is coram non judice and its action a nullity. And whether the want or excess of power is objected by a party, or is apparent to the court, it must surcease its action or proceed extra-judicially.' And, in Burham v Superior Court of California[10] stated that coram non judice was a long standing principle of common law and that absence of lawful judicial authority invalidates judgments: "The proposition that the judgment of a court lacking jurisdiction is void traces back to the English Year Books, see Bowser v. Collins, Y.B.Mich. 22 Edw. IV, f. 30, pl. 11, 145 Eng.Rep. 97 (Ex. Ch. 1482), and was made settled law by Lord Coke in Case of the Marshalsea, 10 Coke Rep. 68b, 77a, 77 Eng.Rep. 1027, 1041 (K.B. 1612). Traditionally that proposition was embodied in the phrase coram non judice, "before a person not a judge"--meaning, in effect, that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment. American courts invalidated, or denied recognition to, judgments that violated this common-law principle long before the Fourteenth Amendment was adopted.' 14. We also need to consider the bar of jurisdiction in precedents of this Court. In Abdul Rauf v Abdul Hamid Khan[11] a five-member Bench held, that: '... any provision in an enactment saying that orders passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law has reference only to orders passed with jurisdiction. It can be stated as a general rule, without reference to the language used in an enactment, that barring provisions like those with which we are here concerned apply only to orders passed with jurisdiction.' The Abdul Rauf case had also held that if action which has been taken is mala fide then too the bar of jurisdiction would not be applicable, by stating as under: 'The decision of the question whether the Civil Court had jurisdiction in the present case would depend on whether the impugned orders and proceedings were without jurisdiction. There is in this case an attack on the proceeding on the ground of mala fide too. A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes.' And, if action is taken contrary to the specified manner or in circumstances not provided for it would also be construed as mala fide as held by a four-member Bench in the case of Federation of Pakistan v Saeed Ahmed:[12]

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'Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law are also mala fide ... the taking of action in such a case for purposes not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law.' 15. Article 209(5) of the Constitution requires that the SJC has to 'inquire into the matter' with regard to whether a judge is guilty of misconduct. Article 209(6) commences by stating that, 'if after inquiring into the matter', and concludes by stating that, if the SJC is of the opinion that a Judge has been guilty of misconduct he should be removed from office. However, Article 209(7) of the Constitution simultaneously safeguards the tenure of a Judge by stipulating that, 'A judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article,' including clauses (5) and (6), which require that an inquiry has to be conducted by the SJC before determining whether a Judge is guilty of misconduct. Article 195 of the Constitution renders further protection to a Judge by stating that a Judge cannot be removed from office except 'in accordance with the Constitution', and the Constitution does not permit the removal of a Judge from office without first holding an inquiry with regard to any alleged misconduct. 16. Therefore, it needs consideration whether an inquiry was conducted with regard to Justice Siddiqui. The SJC in its Report/Opinion stated that, 'the Council [SJC] formed a view that the issue before it was not as to whether the allegations leveled by Justice Siddiqui in his speech ... were correct or not but the question before the Council was whether a senior serving Judge of a High Court ought to have leveled such allegations at a public forum or not'. The SJC proceeded on the assumption that the truth or falseness of the allegations levelled by Justice Siddiqui was irrelevant. However, the SJC proceeded to opine that Justice Siddiqui had failed to substantiate, independently corroborate, substantiate or prove the allegations levelled by him, as noted in the following extracts from the Report/Opinion: (1)'There is no independent confirmation available regarding the facts asserted by Justice Siddiqui...'. (paragraph 17(iii), page 23) (2)'... Justice Siddiqui had completely failed to substantiate his allegations...'. (paragraph 17(iv), page 24) (3)'That allegation had, thus, remained a bald allegation sans any proof whatsoever.' (paragraph 17(iv), page 24) (4)'... raising suspicions about transparency and fairness of the relevant trial and had not bothered to substantiate the allegations.' (paragraph 17(vii), page 28) The abovementioned relevant trial was that of the former Prime Minister, Mr. Muhammad Nawaz Sharif, and of his daughter, Ms. Maryam Nawaz. (5)'... Justice Siddiqui had gone public with such newfound but totally unsubstantiated information.' (paragraph 17(ix), page 30) (6)'The stated allurement [to be made Chief Justice of the Islamabad High Court and before time] was allegedly provided to Justice Siddiqui in a meeting regarding which there was no independent proof.' (paragraph 17(ix), page 30) (7)'... there is no independent confirmation available regarding the facts asserted by Justice Siddiqui even in respect of his stated meetings with some officials or operatives of ISI and in respect of the conversations statedly taking place during such meetings.' (paragraph 17(x), page 31) (8)'... about his stated meetings and conversations with some officials or operatives of ISI, for which there is no independent confirmation...'. (paragraph 18, page 33) (9)'... he had levelled allegations of exerting of undue influence upon him by some officials and operatives of an intelligence agency without substantiating the said allegations...'. (paragraph 22, page 36) (10)'... it was alleged by him that the entire judicial process was manipulated by an intelligence agency but he could not substantiate that allegation...'. (paragraph 22, page 36) (11)'... he had also alleged that the media in the country had succumbed to extraneous pressure. By leveling all such allegations publicly without substantiating the same...'. (paragraph 22, page 37) 17. Justice Siddiqui had undoubtedly levelled very serious allegations against General Faiz Hameed, who was then serving in the Inter Services Intelligence ('ISI'), and a few of his subordinates in the ISI who he

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accused of manipulation of certain sensitive cases in the Islamabad High Court and in the Accountability Court, which was under the jurisdiction of the Islamabad High Court. However, Justice Siddiqui was not given an opportunity to establish his allegations nor brought face to face with those he had accused. When we noted this lapse we issued notices to all those against whom he made allegations and provided them with an opportunity to admit/deny them. All of them have denied their stated involvement. Therefore, it was all the more necessary for the SJC to have inquired into the matter and to have determined who was telling the truth. The SJC did not give any credence to Justice Siddiqui's own words and to the contents of his replies; the SJC assumed that they were false;…

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