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April 26, 2019

Khosa court inspires confidence of unheard losers

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April 26, 2019

ISLAMABAD: As the judiciary is on the course correction while undoing controversial decisions of former chief justice, Dr Zafarullah Khan regains the hope that he had lost together with the case. His case was dismissed unheard by the court of Justice Saqib Nisar, he said. Affording a lawyer to represent him was beyond his financial capacity.

A retired medical officer of Pakistan Ordinance Factory (POF), Zafarullah thought his case was strong enough to stand judicial scrutiny provided he was granted a patient hearing. After retirement from POF in 2013, he intended to purchase the official car that was in his use during service. His desire was in accordance with the monetization policy of the federal government.

As POF denied him this right, he moved Federal Services Tribunal (FST) which ruled in his favour. In its verdict, FST directed POF “for availability of facility of purchase of Car No. RIW-8130 with effect from the date, when the said car was no more in official use of the appellant, however the same would be on the standard terms and conditions as set forth in the Monetization of Transport Policy for purchase of car and the consequential benefits of the monthly facility allowance.”

Zafarullah’s department went in appeal against FST decision and the case was taken up by Justice Saqib Nisar-led bench. He dismissed the verdict on the grounds that Zafarullah was on deputation in POF.

“Regardless of the fact whether Respondent No. 1 (Zafarullah) was a civil servant or not, the Monetization of Transport Policy of the government to provide the official car in use of the government Servant on monetization was not a policy which could be enforced upon the petitioner (POF) organisation, as the respondent was on deputation in the petitioner organisation, therefore, he was not entitled to claim any right under the said policy,” reads the verdict handed on February 15 last year.

For Zafarullah, it was not less than a rude shock. Neither was he on deputation there nor was so claimed by POF. He thought to file review petition in order to remove misunderstanding of the court. In the review, he explained in detail how he had joined POF in 1982 as General Duty Medical Officer and rose to the rank of General Duty Medical Director of POF, a BS-20 position. “It is very much evident that the petitioner (Zafarullah) served as civil servant right from 1982 in POF and was never on deputation, whereas in the impugned order dated 15-2-2018, he has been declared as deputationist which is against the facts,” he concluded in the review petition and hoped the earlier decision would be set aside by the court. As the matter was taken up by the same bench, his review was dismissed by Justice Saqib Nisar with one-line note: “No case for review has been made out. Dismissed accordingly.”

He gave up efforts after this decision as there is no forum to appeal after the review. However, as SC has started taking corrective measures by setting aside verdicts of former CJ, he sees a ray of hope. “I have read in newspapers about various decisions turned down and it has given me a reason to be optimist,” he told The News sharing details of his case.

How can it be done? He doesn’t know. “I can’t afford a lawyer to consult on this matter,” he said when asked whether he had checked with somebody how to move the court after the review. The SC has set aside five verdicts delivered by former CJ. This course correction started as Justice Saqib Nisar was on the verge of retirement when Justice Mansoor Ali Shah declared void his order of reconstituting the bench of the Peshawar registry of Supreme Court right in the middle of a hearing. In March 2018, Justice Saqib Nisar reconstituted the bench after one of its members, Justice Qazi Faez Isa had questioned exercise of suo motu powers by former CJ. “Judge’s removal from SC bench after he questioned the legality of suo motu proceedings amount to shaking the foundation of impartial justice system,” Justice Mansoor Ali Shah wrote in his order. Likewise, Justice Saqib Nisar’s decision was reversed in a suo motu case of Pakistan Kidney and Liver Institute. This was the first reversal occurred after former CJ’s retirement. Suo motu taken against Khokhar brothers of Lahore were also disposed of.

Meanwhile, hearing is in progress in yet another suo motu case where former CJ had ordered the private schools to cut fee by 20 percent through an interim order. Funds collection for Diamir-Bhasha Dam, an initiative of former CJ has not received any attention of new judicial leadership. In the latest correction done only on late Wednesday, SC restored all taxes on mobile phone top-ups which were stopped by Justice Saqib Nisar through an interim order given after taking a suo motu notice. During the course of hearing, Justice Qazi Faez Isa asked about the reasons forming basis of suo motu.

However, Chief Justice Asif Saeed Khosa said judiciary should look forward and used the metaphor to make his point. “Train has now reached Lahore and green flag has been flagged. Let’s forget the past,” he said in a lighter note.

According to the court observers, new administration is doing its best not to repeat the past mistakes. Instead, it is struggling to devise a mechanism to leave no room for arbitrary decision-making. “SC is taking corrective measures,” said Hamid Khan, a senior advocate. Asked if a judge can be held accountable for his controversial decisions, he said the judicial independence is integral for decision-making, he said.

It is due to this reason that judges have to be extra responsible in exercising this independence. Salman K Cheema, a seasoned lawyer, agreed that Justice Khosa-led dispensation is making its best to reform judiciary and improve accountability mechanism. He said efforts appear to be made to institutionalise restrains and improve accountability so that no room is left for the abuse of power even in future.

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