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Friday April 19, 2024

SC rejects Justice Mazahar’s plea for stay on SJC proceedings

A three-member bench of apex court, headed heard petition of Justice Mazahar challenging SJC proceedings as well as show cause notice issued to him on a charge of misconduct

By Sohail Khan
January 10, 2024
The Supreme Court Of Pakistan board can be seen outside the Supreme Court building. — AFP/File
The Supreme Court Of Pakistan board can be seen outside the Supreme Court building. — AFP/File

ISLAMABAD: The Supreme Court on Tuesday declined to halt the proceedings being conducted by the Supreme Judicial Council (SJC) against Justice Mazahar Ali Akbar Naqvi with the ruling that without hearing the case on merits, stay cannot be granted.

A three-member bench of the apex court, headed by Justice Amin-ud-Din Khan and comprising Justice Jamal Khan Mandokhail and Justice Musrat Hilali, heard the petition of Justice Mazahar, challenging the SJC proceedings as well as the show cause notice issued to him on the charge of misconduct.

During the hearing, Makhdom Ali Khan, counsel for Justice Mazahar, pleaded the court to stay the SJC proceedings, saying that the court had granted a stay over the SJC proceedings in former chief justice Iftikhar Muhammad Chaudhry’s case.

Justice Amin-ud-Din, however, observed that they have not yet heard the case on merits, then how could they stay the proceedings.

The court directed the counsel to file an amended petition impleading the complainants as parties in the matter with the ruling that without impleading the complainants as party, the bench cannot proceed further.

The court adjourned the hearing for date-in-office (indefinite period).

The SJC, on October 27 last year, issued a show cause notice to Justice Mazahar amid various complaints alleging bench manipulation and financial misconduct by the SC judge. Pakistan Bar Council, advocate Mian Dawood and others had filed complaints against the Supreme Court judge.

Subsequently, on November 22, a second show cause notice was served by the SJC, demanding a detailed response from the judge regarding the allegations raised by multiple petitioners.

Justice Mazahar then filed a petition in the apex court under Article 184(3) of the Constitution, terming the misconduct complaints filed against him a direct and blatant attack on the independence of judiciary.

On Tuesday, the counsel for Justice Mazahar submitted that Article 209 was meant for protection of judges, adding the court should take into account the Article 209 as well as the Supreme Judicial Council Inquiry Rules 2005.

He submitted that under the rules, the role of a complainant against a judge was very limited. The counsel submitted that the SJC itself or on the reference of the president initiates proceedings against judges.

He further submitted that when the SJC decided to proceed with the proceedings against Justice Mazahar, it also dismissed 21 petitions that day.

Justice Amin-ud-Din, however, observed that the matter was now before the Supreme Court.

Justice Mandokhail asked the counsel as to when his stance was that complaints were filed against his client on the basis of malice, then how the court could not hear the complainants.

The counsel replied that the court has to protect its institution, adding that if these complainants were impleaded as party, then upon the rejection of their complaints, they will file petitions under Article 184(3) of the Constitution.

Meanwhile, the court adjourned the hearing for date-in-office after rejecting the petitioner’s plea seeking a stay on the SJC proceedings.

Separately, senior SC judge and SJC member Justice Ijazul Ahsan termed the allegations levelled against Justice Mazahar without merit or substance in law, saying that the inclusion of allegations in the show cause notice was a clear violation of settled law.

The judge, in a letter to the SJC, said that the show cause notice issued to Justice Mazahar should be recalled forthwith.

“The instant show cause notice ought never to have been issued and it should be recalled forthwith and should be recalled forthwith,” the judge wrote.

“Insofar as the allegations are concerned, they are, in my opinion, utterly without merit or substance, both in law and/ or (as the case may be) even on a prima facie appraisal of the facts, such as they are,” Justice Ahsan wrote.

He said that the bulk of the allegations related to various properties and alleged transactions in relation to the same, adding that of these, allegation Nos5 and 9 relate to properties and/ or transactions relating to properties of the sons of the respondent judge.

The senior SC judge said that the sons are lawyers in practice and are persons of independent means and they are effectively being condemned unheard.

“This, and the allegations themselves, are directly contrary to the findings recorded in Justice Qazi Faez Isa and others v President of Pakistan and others PLD 2022 SC 119,” he wrote.

Justice Ahsan said that the reference may, in particular, be made to the “Obligation of a Judge as to the knowledge of financial matters of his or her financially independent family members”.

“The same is true for allegation No 10, which again implicates the sons of the respondent judge,” Justice Ahsan maintained, adding that as a matter of law, these allegations were unsustainable and could not be leveled against the judge.

He recalled that on 22.11.2023, he had refused to join the other SJC members in issuing the second show cause notice to Justice Mazahar in the referenced complaints.

“I had stated that I would give my reasons for the refusal later and I reserve the right to subsequently, and at any time, to expand on, add to and further elaborate my reasons for refusing to issue the show cause notice,” Justice Ahsan wrote.

“Before I set out my reasons, I wish to say something about the manner in which these proceedings are being conducted. Unfortunately, in my opinion, the proceedings are being conducted in undue haste contrary to established norms,” he added.

The judge said that the SJC must act with deliberate care and after full, frank and detailed discussion.

“This is especially so where there is no unanimity and some members (or even one member) are inclined to disagree with a majority,” Justice Ahsan said, adding that such approach had been entirely lacking in the proceedings.

The judge said that debate and discussion had been non-existent and had not been permitted, while the proceedings of 22.11.2023, when the second notice was issued, were also completely devoid of any discussion or deliberation whatsoever.

Justice Ahsan said that the thrust of the allegations was that the properties had been transacted (as per the record) at values supposedly far below their market value as not a shred of any credible evidence has been produced by the complainants in this regard and everything is hearsay or worse. The judge further said that Allegation No 7 was an example of that, adding that there was nothing on the basis of which the SJC could proceed.

Furthermore, Justice Ahsan said that if the judge had been given an opportunity as suggested, and the properties mentioned found to be declared in his tax returns, the matter of whether there had been any undervaluation as alleged would then be for the tax authorities to determine under the Income Tax Ordinance 2001.

“Without any such consideration, Allegation No 8 has put forward a charge of evidence of corruption,” Justice Ahsan said, adding that such approach would not even be acceptable if done by a prosecuting agency such as NAB, who would be (rightly) castigated for shoddy investigation and speculative conclusions, untethered in any material (even of a prima facie nature).

“This Council has seen fit to issue a show cause notice on such basis is something that I do not find acceptable,” Justice Ahsan wrote, adding that a reasoned and deliberative approach ought to have been adopted which would have prevented the SJC from falling into the error that has now been committed with the issuance of the show cause notice.

“I, therefore, disagree with the process followed and the manner in which the proceedings are being conducted,” he said.