ISLAMABAD: Masood Arshad, who was informed through a WhatsApp message that he has been removed as the judge of the Special Court (Control of Narcotics Substances), is not the first senior member of the subordinate judiciary whose departure has created a stir.
During different eras, judges have to go because of various serious controversies and reasons and not essentially on corruption allegations. All of them were involved in adjudication of mostly high-profile cases relating to politicians or other influential figures.
Judge Masood Arshad too has no malpractice, graft charge whatsoever against him. Same is the case of the removed Lahore accountability court judges Mushtaq Elahi and Naeem Arshad. Since they were chairing the federal government’s special courts, the central administration decided to relieve them. There was also no corruption allegation against them.
Masood Arshad’s transfer is unlike the parting of Judges Arshad Malik (video leak fame) and Pervezul Qadir Memon (Exact chief Shoaib Shaikh fame), [Justice] Shaukat Siddiqui (hard-hitting statement fame), Justice Safdar Shah (Zulfikar Ali Bhutto’s murder appeal in the Supreme Court fame) and some others.
It is not known what decision Judge Masood Arshad was going to hand on the bail plea of senior Pakistan Muslim League-Nawaz (PML-N) leader Rana Sanaullah, arraigned on the charge of narcotics smuggling. But his hurried removal gave the impression as if the government has the indication or fear that he might grant bail to the PML-N leader. Before leaving the bail matter undecided, the visibly irate judge did make public the mode of his exclusion.
Till the time the federal government, read the central law ministry, will appoint from the panel sent by the Lahore High Court (LHC) chief justice the new judge for the Special Court (Control of Narcotics Substances) Lahore, further proceedings on Sanaullah’s bail plea and the overall case will remain at a standstill. It will be up to the new judge to hear the lawyers’ arguments afresh or decide the request on the submissions, already concluded by Sanaullah’s attorneys.
The government side has stated that the transfers are a routine matter. The Ministry of Law and Justice had stated that a few repatriated judges had serious integrity and impartiality issues.
Well, the judges’ transfers and postings are a routine matter, but when they are made in a questionable manner, they raise eyebrows. The LHC chief justice will form the three panels which will be forwarded to the federal government for appointment as the presiding offices of the two accountability courts as well as the Special Court (Control of Narcotics Substances) of Lahore.
At present, the Punjab has a total of 158 district and sessions judges. Only thirty-six of them are serving as the district judges while the rest of them are performing other judicial functions with a majority of them chairing different kinds of special courts. Nearly three dozens of such judges are working in Lahore alone.
Unlike the three Lahore judges, accountability court Islamabad Judge Arshad Malik, who had convicted former Prime Minister Nawaz Sharif in one reference and acquitted him in another, had to go and face suspension in a very controversial manner. PML-N Vice President Maryam Nawaz had made public one of his secretly recorded videos. The Supreme Court and Islamabad High Court (IHC) concluded that the judge made enough admissions and confessions in his press statement and an affidavit submitted to the IHC, deserving disciplinary proceedings.
In February, 2018, additional district and sessions judge of Islamabad Pervezul Qadir Memon was sacked for receiving a bribe of Rs5 million for acquitting Axact CEO Shoaib Shaikh. He had exonerated the accused on October 31, 2016 and later confessed before a departmental promotion committee that he received money.
Shaukat Siddiqui was removed by the Supreme Judicial Council (SJC) for his address to the Rawalpindi bar association in which he had harshly attacked an institution. Contrary to what many judges including Justice Farrukh Irfan of the LHC arraigned by the SJC do, he declined to resign and was dismissed by the forum. Had he quit, he would have qualified to hefty post-retirement pension and other benefits.
The federal government got transferred Lahore accountability court judges Mushtaq Elahi and Naeem Arshad ten weeks after their appointment as it was not satisfied with their performance in hearing the cases against PML-N leaders including Maryam Nawaz, Shahbaz Sharif, Hamza Shahbaz, Abbas Sharif, Salman Shahbaz and others.
Successive governments, apprehending adverse judgments, have been resorting to such tactics. The most famous case relates to Supreme Court Justice Safdar Shah (father-in-law of IHC Chief Justice Athar Minallah). During General Ziaul Haq’s time, he had flee Pakistan to Kabul to save himself from the wrath of the martial law regime.
As the military government machinery had initiated arrangements to hang deposed Prime Minister Zulfikar Ali Bhutto, Justice Safdar Shah made a remark during a chat with a BBC correspondent. H had pointed to the apex court’s observation while rejecting the review petition that the arguments of defence counsel Yahya Bakhtiar could not be disregarded by the Executive while deciding the question of implementing the death sentence (4-3) or not. This interview was held on March 26, 1979, two days after the court had rejected Bhutto’s review petition and upheld the LHC verdict.
The apex court’s observation was also mentioned by the federal Interior secretary in his summary sent to General Ziaul Haq on April 1, 1979: “… although we have not found it possible in law to review the sentence of death on the grounds urged by Yahya Bakhtiar, yet these are relevant for consideration by the executive authorities in exercise of their prerogative of mercy. While such court recommendations are not binding on the Executive, but in the past, such advice has always been honoured.”
Justice Shah had given the impression that he would have accepted the argument of Bhutto’s defence team, and also remarked that other judges of the bench had the same feeling too. This caused a stir in political and judicial circles.
The then Chief Justice had taken notice and issued a statement on behalf of the Supreme Court saying it is not the practice of the superior courts to make remarks explaining the import of their judgment or the orders, or any observation contained therein, as they speak for themselves. Whatever Justice Safdar Shah has said reflects his personal views only and he had no authority to speak on behalf of the other members of the bench. As the remaining judges would not like to depart from this settled practice, they would refrain from making any comments on this behalf.
This panicked Ziaul Haq’s team of advisers, who immediately asked the Federal Investigation Agency (FIA) to begin an inquiry against Justice Shah. The jujdge was then forced to submit a number of explanations. The aim was to hound him to such an extent that he should be maligned and discredited.
The FIA began investigating on the presumed charges that he got his job as a judge through placing fraudulent academic certificates and changed his age degree to get an extension. A case was also filed in the SJC, which after consideration on April 30, 1980, decided that a notice be issued to him.
Ziaul Haq began arguing that Justice Shah had committed misconduct by expressing his opinion in the press, thereby maligning the judiciary.
A Nov 10, 1980 official handout claimed that during the trial of Nawab Muhammad Ahmad Khan’s murder in the LHC, Justice Shah had tried to influence one of the judges to extend a favour to an accused, Mian Abbas. It was alleged that the LHC judge was asked to treat the accused lightly.
In the charge-sheet against him, Justice Shah was also accused of committing misconduct and forgery in his education certificates. On Oct 16, 1980, he appeared before the SJC. It was claimed that he had decided to resign as the judge, rendering the proceedings against him as redundant. Justice Shah was so tightly squeezed by the authorities that after his resignation, he fled to Kabul where he spoke to the media to explain his viewpoint.