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Thursday December 02, 2021

Justice Isa case: Supreme Court reserves verdict on formation of bench for hearing review pleas

December 11, 2020

ISLAMABAD: The Supreme Court (SC) on Thursday reserved the judgment on constitution of a bench for hearing identical petitions, challenging its order of June 19, 2020 to the extent of direction given to the Federal Board of Revenue (FBR) after the full court squashed the presidential reference, filed against Justice Qazi Faez Isa.

A six-member larger bench, headed by Justice Umar Ata Bandial and comprising Justice Manzoor Ahmed Malik, Justice Mazhar Alam Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed, resumed hearing in the review petitions.

The court reserved the judgment on the matter of composition of a bench for hearing the instant review petitions and held that decision in this regard would be announced soon. The court directed counsel for the Supreme Court Bar Association (SCBA) Abdul Latif Afridi to submit his written arguments on the matter.

Arguing through video link from Karachi Registry, Munir A Malik, counsel for Justice Qazi Faez, referred to the note of Justice Durab Patel in former prime minister Zulfikar Ali Bhutto’s review petition case.

The counsel submitted that the learned judge had held in his note that a bench hearing the review petition would include those judges who had given their dissenting notes in the main judgment.

Munir A Malik contended that only the bench that had heard the main case can hear the review petition as well. At this, Justice Muneeb Akhtar, another member of the bench, questioned as to if the said bench was not available or one of its members got retired then what would be the situation?

Malik replied that non-availability of the main bench is another issue but he believes that the issue relates to composition of members which must be complete while hearing the review petition.

A 10-member full court, headed by Justice Umar Ata Bandial, on June 19 in a short order, had quashed the reference of legal effect, holding the proceedings before Supreme Judicial Council (SJC) as having abetted.

Seven judges of the full court including Justice Umar Ata Bandial, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed had referred the matter to the FBR, directing it to initiate tax proceedings against spouse and children of Justice Qazi Faez Isa.

Later on, in order to hear review petitions against the judgment, the chief justice formed a seven-judge bench comprising all the judges, who wrote the majority judgment. One of the members, Justice Faisal Arab, retired on Nov 3 and later another bench was announced comprising the remaining six judges.

Three judges including Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, who held the minority view, were excluded from the larger bench.

On Thursday, Munir A Malik contended that the bench hearing the review petitions should be complete. Justice Umar Ata Bandial, however, observed that Justice Durab Patel had viewed that judges who had held their minority view in the main judgment, could sit on the bench hearing review petition as an observer but could not give any observation during the course of the proceedings.

Similarly, Justice Durab Patel, in the review petition of Zulfikar Ali Bhutto had avoided to give his views pertaining to objection on the constitution of bench, but had stressed composition of the bench in lieu of dignity of courts and its traditions,” Justice Bandial added.

Rashid A Rizvi, counsel for Sindh High Court Bar Association (SHCBA), however, contended that only a larger bench could give decision on the view of Justice Durab Patel. He, along with Hamid Khan, another counsel for the petitioners, adopted the arguments of Munir A Malik.

During the course of hearing, Sarina Isa, spouse of Justice Qazi Faez Isa, contended that she knows that it is the prerogative of the chief justice to constitute benches for cases but here he was respondent in the case.

She submitted that she again apologised for his earlier statement before the court if the learned judges got hurt, but added that judges who were part of the main case should be included in the review bench as well.

She said that as she was not a party to the main case, she requested the court to provide her transcript of the case. The court then asked her to move an application in this regard. Justice Bandial asked Sarina Isa that it would be better if she get the assistance from her lawyers, adding that the court could even ask any lawyer to assist her if she wants so.

Meanwhile, the Advocate on Record (AOR), on behalf of Supreme Court Bar Association, appeared before the court and informed that the SCBA president has been admitted to hospital for conducting some medical tests, hence he could adopt the arguments of Hamid Khan, Munir A Malik and Rashid A Rizvi if the case was not adjourned.

The AOR further submitted that she had contacted Abdul Latif Afridi who told her that he could file his written arguments in this regard which the court accepted and asked him to do the needful within two days.

Hamid Khan, counsel for one of the petitioners, submitted before the court that the judges who were part of the main judgment, should be included in the bench hearing the instant review petitions.

Meanwhile, the court reserved the judgment on the matter of constitution of bench for hearing the identical petitions and adjourned the hearing for date-in-office ( foran indefinite period of time).