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December 6, 2018

SC raises 62(1)(f) spectre for Swati

Top Story

December 6, 2018

ISLAMABAD: Chief Justice of Pakistan (CJP) Mian Saqib Nisar on Wednesday headed the Supreme Court (SC) benches that heard high-profile cases involving Federal Minister Azam Swati, Prime Minister’s Adviser Zulfi Bukhari and Model Town violence.

In the case pertaining to the transfer of Islamabad IGP Jan Muhammad, the CJP remarked that the Supreme Court will conduct Federal Minister Azam Swati’s trial under Article 62(1)(f) of the Constitution, which can lead to disqualification of the minister.

A three-judge bench, headed by the Chief Justice, heard the suo motu case of the Islamabad IGP’s transfer. The CJP remarked, “We have read Swati’s reply. You (Swati) are a person of authority. Do people in power treat their subordinates like this? Do rulers send women to jail because of issues involving cows?"

He then turned to the Islamabad IGP and remarked, “You did not take any action on this matter.” The IGP responded, “Action was not taken as the case is being heard in court.” The CJP said, “Why don’t we make an example out of Swati. Now the court will conduct his trial under Article 62(1)(f) of the Constitution.”

He asked the Supreme Court Bar Association (SCBA) President Amanullah Kinrani, “On whose behalf are you appearing (in court) and what is your relation with the case?” Kinrani responded, “I am here in my personal capacity as Swati’s former colleague.”

He also requested the court to not conduct the federal minister’s trial under Article 62(1)(f) of the Constitution and said the court should forgive him as he has learnt. However, the CJP said, “He will learn when he is sentenced. Tell us should we conduct the trial under Article 62(1)(f) here or should we transfer it?”

At this, Swati’s counsel said the JIT report is based on allegations and thus an inquiry cannot be conducted under Article 62(1)(f). The counsel added, “There is no example of a trial under Article 62(1)(f) on the basis of a JIT report.”

The Chief Justice said, “If there is no such example, then we can set it. Swati should have sacrificed on moral grounds following the JIT report. We do not want money from Swati even for the dams fund. We will not even take Swati’s money for national interest.”

The attorney general informed the court the NAB laws do not apply on Swati. The Chief Justice said, “We will appoint court advisers to investigate (the matter) under Article 62(1)(f).” The court appointed Advocate Khaled Javed Khan and Faisal Siddiqui as court advisers. The hearing was then adjourned till December 24.

A three-judge bench had taken suo motu notice of Islamabad IGP Jan Muhammad’s abrupt transfer last month. The IGP was transferred on October 27 after he refused to take action on a complaint by the son of Swati regarding a fight over purported encroachment with a family at their farmhouse.

Separately, hearing a petition seeking disqualification of Prime Minister's Special Assistant on Overseas Pakistanis Zulfi Bukhari, the CJP remarked that he only wants to see whether the London-based businessman was appointed in accordance with the law or not.

Bukhari’s counsel Aitzaz Ahsan appeared before a bench headed by Chief Justice Nisar as it heard the petition seeking his disqualification for being a dual national. As the hearing went underway, petitioner Adil Chattha requested the court to adjourn the hearing till December 15 as his counsel was out of town.

However, the chief justice inquired, “When was Bukhari introduced in Pakistan and when did he come into the limelight?” At this, Ahsan said, “Bukhari is a special assistant to the premier, not a parliamentarian and his profile has been presented in court.”

Justice Nisar continued, “I think Bukhari came to people’s notice the first time when there was an issue and he had gone to receive someone.” However, the petitioner said, “People came to know of him after he met Reham Khan in London following her [and Prime Minister Imran Khan’s] divorce.”

Objecting to the petitioner’s remarks, Ahsan said, “Divorce is a personal matter and should not be raised for debate. Bukhari has been very active with the Pakistani community in London and this youngster performed brilliantly in the first 100 days of the government.”

“Bukhari has also donated all his salary earned from the time of appointment till now to the dams fund,” the counsel added. At this, the chief justice smiled and said, “That is very good.” The petitioner then said, “Although, he is the prime minister's special assistant on overseas Pakistanis, he also attends EOBI meetings.” At this, the chief justice remarked, “Tomorrow the government will have to pay for how many good people they appointed and how many they didn’t. We are not related to this.”

“We only want to see whether Bukhari was appointed in accordance with the law or not,” Justice Nisar added. He further said, “If there was nepotism in his appointment, then the court will review the matter.”

The top judge continued, “There was a lot of talk when we used the word nepotism in one decision. We cannot change the legal system if somebody was upset because of it.” “It is not our job to mock the administration. Nobody told them that this is a quo warranto case and nepotism was brought up as grounds for argument. The petitioner has not raised the issue of nepotism,” he added.

Recently, during an interview with TV journalists and anchors in Islamabad, Prime Minister Imran Khan had said that he deeply regretted the chief justice’s nepotism remarks. Meanwhile, a five-member bench of the SC disposed of a writ petition pertaining to the 2014 Model Town violence, after the assurance of Punjab government for constituting a new Joint Investigation Team (JIT) to probe the matter.

A larger bench of the top court, headed by Chief Justice of Pakistan (CJP) Mian Saqib Nisar and comprising Justice Asif Saeed Khosa, Justice Sheikh Azmat Saeed, Justice Faisal Arab and Justice Mazhar Alam Miankhel, resumed hearing into the matter on Wednesday.

During a clash between workers of the Pakistan Awami Tehreek (PAT) and police in the provincial capital’s Model Town area in 2014, at least 14 people were killed and over 100 injured. On Wednesday, the CJP asked Dr Tahirul Qadri if he would argue the case. Qadri replied that he would himself argue the case but his lawyers would assist him. While presenting his case, Dr Tahirul Qadri said that the PML-N government had formed two JITs but the teams failed to record statements from the injured and the accused alike. He claimed the Punjab Police and prosecution were under the control of the previous government.

Justice Asif Saeed remarked that after the indictment of former Punjab IGP Mushtaq Sukera in the case, all statements had to be recorded again. To this, Qadri said, “The trial has now come to zero,” adding that following the constitution of the larger bench, the victims were hopeful of getting justice.

“What are the basis of FIRs registered by the JIT?” Justice Khosa asked, to which Qadri responded that the police first formed the JIT on their own FIR. “Later, it was formed on our FIR,” Qadri said. “The judicial commission gave its findings on the matter too.”

The CJP remarked that he wanted hearings into this case to be held on daily basis, but it was Qadri who had petitioned for hearings twice a week. The chief justice asked how many witnesses had recorded their statements in the case, to which the PAT chief responded that 23 of the 157 witnesses had recorded their statements. “It is important to take an overview of the situation before the incident as well, to know why it happened,” Qadri pointed out.

“To-date, our case has not been investigated,” he claimed. "The requirements of the investigation were not met. Although, our move to register a case was appreciated, it was only registered after we protested for two months. No victim’s statement was recorded during the investigation. PAT did not appear before the JIT. Can it even be called an investigation?” he questioned.

The PAT chief said the Model Town victims wanted a JIT other than the one formed earlier by the previous Punjab government. “Did you raise your objections to the members of the JIT?” the chief justice asked, to which Qadri responded that he had written to the police chief numerous times expressing his objections to the JIT.

After the court heard his arguments, it asked the Punjab Advocate General Ahmed Awais about the provincial government’s stance on the matter. Awais responded that the Punjab government had no objections to the reconstitution of a JIT, adding: “You may go and constitute the JIT.”

“The Punjab government had adopted the clear stance that it had already decided to form a new JIT,” the top court declared. The new JIT would be formed under Section 19 of the Anti-Terrorism Act.

“The court said that there was no other way but to form a JIT. The court’s stance was also supported by the Punjab government,” he added. On Dec 5, 2017, the Punjab government released the Model Town inquiry tribunal report after three years following a Lahore High Court (LHC) directive to make it available for public consumption.

The report, prepared by Justice Baqir Najafi commission, had blamed the provincial government, including then Punjab chief minister Shahbaz Sharif and former law minister Rana Sanaullah, and police for the 2014 incident in which 14 supporters of the Pakistan Awami Tehreek (PAT) were killed.

As per Justice Najafi’s account, the police did its best to cover up the facts regarding who gave orders to open fire on protesters. “The facts and circumstances of the bloodbath clearly show that the police officers actively participated in the massacre,” stated the report.

The report also criticised members of the Punjab Police for their complicity in the incident. “No police official from top to bottom, whether actively participated in the operation or not, did utter a single word about the person under whose command the police resorted to firing upon the PAT workers.” Moreover, the report expressed disappointment over the fact that the Punjab government did not empower the tribunal under Section 11 of the Punjab Tribunals Ordinance, 1959.

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