Judicial Commission is as an hierarchy created under the Constitution.
The functions of the Judicial Commission are not that of a Supreme Court or a High Court or even a Tribunal and as such procedures required of a Judge or a Court is neither resorted to nor adopted.
Concerns paving way and charges of professional misconduct leveled against my person by the Chairman and members of the Judicial Commission for my unceremonial exit, though upsetting, insulting and offending are not legitimately disclosed to me inspite of my written requests.
Talk of the town, in the earlier days, for my unceremonial exit, was
(a) blames against my person for illegal appointments in Islamabad High Court & District Courts;
(b) acceptance of illegal gratifications in cases; and
(c) embezzlement of funds in purchases of photostat machine.
According to the Chief Justice Islamabad High Court my person was not involved in any illegal appointments or any other undesirable activities. However, despite my insistence, the denials were not made public as this would expose certain members of the Judicial Commission and their associates to hazards including his own removal from office.
By Justice Azim Khan Afridi
Orders and Disorders of the Chief Justice
Author’s Note: For appreciation of this post scrutiny and study of other articles, videos and multimedia presentation on “Screen” and judgment in Malik Riaz Case would be helpful.
The CJ, while sitting and hearing causes as a Judge, commands all respects of the nation as he represents an important office under the Constitution.
His notable and significant remarks are frequently reported by media in “Breaking News”.
There is no cavil to the proposition that adherence to statutes, apart from bringing fame, eminence and prominence to the Judge, make a judgment, ruling or verdict exhaustive and all-encompassing.
The CJ, in other sittings, neither respects Constitution and law nor lets other to follow.
He, with all respects, would never hesitate to influence others with his cautious and cagey attitude.
It was shocking to learn that the CJ, in a private sitting, directed Dr. Faqir Hussain, Registrar Supreme Court to watch the demeanor of the Court during hearing of Judges Case. Oddly he purposely included Mr. Justice Ijaz Afzal Khan in the Bench inspite of my reservations as Judge Islamabad High Court and, the latter warmly received the offer, inspite of knowing my valid alarms and apprehensions.
Strangely the CJ, for my ouster, hatched a conspiracy and influenced others to disbelieve official reports and accept as true off-the-record material including that procured through a family of my commune, involved in illicit earnings. He deliberately concealed illegal appointments made by Mr. Justice Iqbal Hameed Ur Rahman, Chief Justice Islamabad High Court and Mr. Justice Muhammad Anwar Khan Kasi and articulately managed elevation of one of the Judges as Judge of the Supreme Court and the other as the Chief Justice of Islamabad High Court.
He probably settled the encounter with Malik Riaz of Bahria Town, after punishing the authors of the judgment in WPs No. 2009 of 2012 and 2076 of 2012. He unilaterally ignored the decision taken on the floor of the Parliament for appointing the Chief Justice from FATA and arrogantly managed my expulsion inspite of my straight matchless record, dedicated hard work and inspirational role aimed at lessening wave of deprivation and terrorism in FATA.
Orders of the Chief Justice are prima facie aimed at strengthening governance and judicial system in the country. However, disorders attributed to him, in other sittings, are undoubtedly aimed at abating and weakening the Judiciary and intensifying terrorism.
A shared folly, that of mine & Mr. Justice Riaz Ahamd Khan, is a Judgment delivered by us in a Division Bench constituted by the Chief Justice Islamabad High Court, wherein famous case of Malik Riaz of BehriaTown came up for hearing before us which was decided by us in the following manners:
ISLAMABAD HIGH COURT, ISLAMABAD.
WP No. 2009 of 2012
Ch. M. Naeem Ali Advocate and another
Federation of Pakistan through Secretary, Ministry of Interior and three others.
WP No 2076 of 2012
Advocate, Malik Abdul SattarAwan
Federation of Pakistan through Secretary, Ministry of Interior and three others.
Petitioners by: Barrister ZafarUllah Khan
Respondents by: Syed Zulfiqar Abbas Naqvi Advocate and Mr. Javed Iqbal Butt, Standing Counsel.
DATE OF HEARING: 28-6-2012.
DATE OF DECISION: 03-7-2012
Muhammad Azim Khan Afridi, J: Ch. M. Naeem Ali and Mr. Umar Khayam Advocates hereinafter referred to as the petitioners are seeking issuance of writ against the respondents i.e. Federation of Pakistan and others to declare letter No.F.No.3/100/2011-PTNS dated 13-6-2012 as illegal, unlawful, fanciful, against the principles of natural justice, equity and equality and that the remission of sentence by the President of Pakistan, awarded to Muhammad Basharat(respondent No.4) under the Anti Terrorism Act 1997, be declared null and void and that respondents No.1 to 3 be restrained from implementing the decision vide the said impugned letter.
2. Malik AbdulSattarAwan Advocate has also called in question the vires of the said order and has also prayed for laying down parameters for exercise of powers by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan hereinafter referred to as the Constitution.
3. Since identical questions of facts and law are involved in both the constitutional petitions No.2009/2012 and 2076 of 2012 and the same are arising against one and the same order dated 13-6-2012, as such, both the petitions are disposed of through this single judgment.
4. Facts in brief stated in the constitutional petitions are that the petitioners, respectable citizens of Pakistan, belonged to the legal fraternity and committed for rule of law, equity, fair play and equality. Respondent No.4, accompanying Malik Riaz Hussain of Bahria Town, as his guard, fired at one Hamid in parking area adjacent to the Court of learned District & Sessions Judge, Islamabad who, as a result of the said firing lost his life. A criminal case U/Ss 353/337-F/337-C, 148/149/324/316 PPC and 7 ATA, 1997 was registered vide FIR No.19/2010 at Police Station Margalla, Islamabad. After commencement and conduct of trial respondent No.4 was acquitted of other charges on the basis of compromise but was found guilty and sentenced to life imprisonment under section 7 ATA. That former boss of respondent No.4, by exercising his influence, illegally and unlawfully, managed remission of remaining sentence of respondent No.4 by the President of Pakistan.
5. Learned counsel for the petitioners has argued that under Article 45 of the Constitution the President is empowered to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence by any Court, tribunal or other authority, however, the said powers of the President were subject to limitations laid down under Article 48 of the Constitution, according to which the President, in the exercise of his functions, was obliged to act on and in accordance with advice of the Cabinet or the Prime Minister. That the grant of pardon extended to respondent No.4 was without any such advice and was, therefore, nullity in the eye of law and the impugned order was, therefore, passed by the President without any lawful authority. That the respondent No.4 was convicted by the Court for his act of terrorism inspite of the fact that legal heirs of the deceased had entered into a compromise with respondent No.4. He further argued that discretion, under Article 45 of the Constitution, was to be exercised with care keeping in mind the duty to maintain justice so as to prevent erosion of the deterrent effect that judicial punishment must retain. That the exercise of power of remission of sentence by the President was based on malafide and against the scheme of constitutional provisions and law. That remission in cases breeding terrorism cannot be legally granted.
6. Reliance was placed on case law reported in PLD 1992 SC 14, PLD 2006 SC 365, 1999 MLD 3112 (Quetta), PLD 1989 Supreme Court 633, 2010 PLD Lahore 605, PLD 1998 Karachi 416, PLD 1991 Federal Shariat Court 236, 1999 SCMR 2883, (1987) 1 Supreme Court Cases 288, (2002) 7 Supreme Court Cases 222, (2006) 8 Supreme Court Cases 161, (1982) 1 Supreme Court Cases 417, (1981) 1 Supreme Court Cases 107, (1989) 1 Supreme Court Cases 204, (2004) 7 Supreme Court Cases 634 and 274 U.S. 480 (1927).
7. On the other hand, learned counsel appearing on behalf of respondent No.4 and learned Standing Counsel for respondents No.1 to 3 have argued that the writ petition was not competent as the petitioner was not an aggrieved person within the meaning of Article 199 of the Constitution. That the powers of pardon vested in the President of Pakistan under Article 45 of the Constitution are not subject to any restrictions including the provisions of Article 48 of the Constitution. That no malafide was established by the petitioners and that the remission was granted by proper exercise of powers vested in the President under Article 45 ibid. Reliance was placed on case law reported in PLD 2007 SC 52, PLD 2007 SC 386, PLD 1992 SC 14, PLD 2004 Quetta 1, PLD 2010 Lahore 428 and PLD 2006 Supreme Court 365.
8. We have heard arguments of the learned counsel for the parties and perused the record.
9. Undisputed facts of the cases are that Muhammad Basharat, respondent No.4 was charged for offences punishable U/Ss 353, 337-F, 337-C, 148, 149, 324 and 316 PPC and 7 ATA 1997 vide FIR No.19 of 2010 registered at Police Station Margalla, Islamabad. During the trial before the Anti Terrorism Court, Rawalpindi, respondent No.4 was acquitted of other charges on the basis of compromise but was found guilty and sentenced to life imprisonment under section 7 of Anti Terrorism Act 1997. Respondent No.4 was suffering the sentence when vide impugned letter dated 13-6-2012 President of Pakistan remitted his remaining sentence.
10. With reference to maintainability of the constitution petitions, in case of Province of Balochistan Vs. Murree Brewery Company Ltd. reported in PLD 2007 SC 386 it was observed that for invoking the jurisdiction of High Court through constitutional petition, the petitioner must be an aggrieved person and he must have a locus-standi for availing such jurisdiction. In case of Hafiz HamdullahVersus Saifullah Khan and others PLD 2007 SC 52 it was held that a person invoking constitutional jurisdiction under Article 199 of the Constitution is to establish that any of his legal or fundamental rights guaranteed under the Constitution were violated resulting any legal loss.
11. In case of AttaUllah Khan Malik Vs. Federation of Pakistan through President of Pakistan and 3 others 2010 PLD Lahore 605 it was observed that in any matter pertaining to public interest litigation rule of ‘standing’ or ‘locus-standi’ or ‘aggrievedperson’ has received liberal interpretation and any person or citizen having sufficient interest can maintain a petition as ‘aggrieved person’ under Article 199 of the Constitution subject to satisfying the other requirements of the said Article. In case of Mushtaq Ali Vs. Government of Sindh through Chief Secretary, Sindh and 11 others PLD 1998 Karachi 416 it was observed that strict rules and technicalities with respect to locus-standi of petitioner in a public interest litigation would have no room in such matters.
12. In case of ArdeshirCowasjee reported as 1999 SCMR 2883 it was observed that for maintaining a proceeding in writ jurisdiction it was enough to see that the petitioner has a personal interest in performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise.
13. In case of Zahir Enterprises reported as 1999 MLD 3112 (Quetta) it was observed that condition of an aggrieved person stands fulfilled when it is established that the petitioner is an interested person. It was further observed that the object of invoking the constitutional jurisdiction is not to claim relief essentially in favour of the petitioner
14. A careful study and scrutiny of the aforestated case law would reveal that for maintaining constitutional petition under Article 199 of the Constitution, a person seeking order or directions of the Court must be an “aggrieved party” within the meaning of the said Article. The petitioners, with reference to controversy in hand, were obliged to show that their vested or established fundamental rights were infringed or violated by the impugned notification. Since no right whatsoever vested in the petitioners is affected by the impugned notification directly or indirectly as such we would hold that the petitioners are not an “aggrieved party” for the purpose of Article 199 of the Constitution and as such the writ petitions are not maintainable.
15. With reference to commutation of sentence under the provisions of PPC, Cr.P.C. and ATA 1997 and presidential power to grant pardon etc. it is necessary to reproduce the relevant provisions of law and Constitution, for ready reference and facilitation:-
Article 45 of the Constitution.
President’s power to grant pardon, etc. The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority.
Article 48 (1) & (2) of the Constitution.
President to act on advice, etc. (1) In the exercise of his functions, the President shall act on and in accordance with the advice of the Cabinet or the Prime Minister.
Provided that with in fifteen days the President may require the cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall within ten days act in accordance with the advice tendered after such reconsideration.
(2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever.
Provisions of Pakistan Penal Code.
Section 55. Commutation of sentence of imprisonment for life.— In every case in which sentence of imprisonment for life shall have been passed, the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years:
Provided that, in a case in which sentence of imprisonment for life shall have been passed against an offender convicted for an offence punishable under Chapter XVI, such punishment shall not be commuted without consent of the victim or, as the case may be, of his heirs.
Section 55-A. Saving for President’s Prerogative.— Nothing in section fifty-four or section fifty-five shall derogate from the right of the President to grant pardons, reprieves, respites or remissions of punishment.
Provided that such right shall not, without the consent of the victim or, as the case may, of the heirs of the victim, be exercised for any sentence awarded under Chapter XVI.
16. A careful perusal of the aforestated provision of law and proviso added to the said section read with Section 401 Cr.P.C. and Section 21(1) of Anti Terrorism Act 1997 would reveal that the Government has the authority to commute the sentence of imprisonment in the following manners and circumstances:-
(i) Sentence of imprisonment for life without the consent of the offender.
(ii) Punishment of imprisonment of life can be commuted for imprisonment of either description for a term not exceeding 14 years.
(iii) Punishment under Chapter XVI i.e. Offences affecting the human body, cannot be commuted without consent of the victim or, as the case may be, his heirs.
(iv) Remissions in sentence to a person convicted and sentenced for an offence punishable under Anti Terrorism Act 1997 is not allowed except in case of a child convicted and sentenced for an offence under the said Act.
17. There is no cavil to the proposition that in the exercise of his “functions” the President is to act on and in accordance with the advice of the Cabinet or the Prime Minister, however, the President, as envisaged in Article 48 (2) of the Constitution is to act in his “discretion” in respect of any matter of which he is empowered by the Constitution to do so. The expression “discretion” in Article 48(2) of the Constitution is the manifestation of authority, which the President of Pakistan is to exercise and perform independent of any advice obligated under Article 48 (1) of Constitution. Article 45 of the Constitution empowers the President to grant pardon, reprieve and respite and to remit, suspend or commute any sentence awarded by the Court, tribunal or the other authority in his discretion, as such, advice of the Cabinet or the Prime Minister for exercising his “power” under Article 45 of the Constitution would neither be a prerequisite nor essential.
18. The Scheme of commutation or remission of sentence under the provisions of Pakistan Penal Code 1860, Criminal Procedure Code 1898 and Anti Terrorism Act 1997 can neither limit nor restrict the authority of the President of Pakistan vested in him under Article 45 of the Constitution as a subordinate legislation, in no circumstances, can influence or affect power of the head of State vested in or conferred on him under the Constitution.
19. According to the arguments of the learned counsel for the petitioners, in case law of Indian Supreme Court, referred to above and relied on by the learned counsel for the petitioners, judicial review of the order of the President was available, more particularly on the grounds when:-
(i) an order was passed without application of mind, or
(ii) withmalafide or on extraneous or wholly irrelevant consideration or
(iii) when the relevant material was kept out of consideration or
(iv) when the order was suffering from arbitrariness.
Similarly in law laid down in Biddle, Warden Vs. Perovich 274 U.S. 480 (1927), the pardon was a part of constitutional scheme and was to be granted if the public welfare was better served by inflicting less than what the judgment fixed. To further elaborate the issue Article 189 of the Constitution is also reproduced for facilitation:-
189. Decision of Supreme Court binding on other Courts. Any decision of the Supreme Court shall, to the extent that it decides question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.
20. It is thus clear that a decision of the Supreme Court of Pakistan is binding on all Courts in Pakistan in the following circumstances:-
(i) When by the same a question of law is decided.
(ii) When the same lays down or enunciates a principle of law and
(iii) When the same is based upon a principle of law.
The decision of the August Supreme Court of Pakistan referred to above, deciding the question of law and enunciating the principles of law are to be mandatorily followed by all Courts including this Court exercising extraordinary jurisdiction under Article 199 of the Constitution.
21. Though the foreign case law referred to and relied on by the learned counsel for the petitioners define parameters for the exercise of powers in almost similar circumstances with respect to pardoning, remission etc. of an offender but the same cannot be imported and taken into account for the interpretation of Article 45 of the Constitution, more particularly, when the said Article was interpreted by the Courts of the country including the Apex Court of ultimate jurisdiction. In case of Abdul Malik and others Vs The State PLD 2006 SC 365 the August Supreme Court of Pakistan has observed that power of President of Pakistan to grant remission in terms of Article 45 of the Constitution was unfettered and no clog stipulated in a piece of subordinate legislation could abridge such power of the President. It was further observed that such power of the President was not violative of the spirit of Article 2-A of the Constitution. Similar view was taken in case of Haji Bismillah reported as PLD 2004 Quetta 1 wherein it was further observed that exercise of such discretion was not assailable before any forum including a Court of law.
22. Malafide on the part of President of Pakistan in exercise of his discretionary powers, though alleged but remained unsubstantiated. Respondent No.4 was convicted by the Court under section 7 ATA. In offences punishable under Chapter XVI, legal heirs of the deceased had consented to his acquittal. Mere allegation of malafide, without persuasive material would not entitle an aggrieved party to seek annulment of orders of remission in sentence passed under Article 45 of the Constitution, on the plea of malafide.
23. Keeping in view the arguments of the learned counsel for the parties and assistance extended to us through case law and provisions of law and interpretation of statutes by the August Supreme Court of Pakistan we hold that the impugned notification originating from the order of the President of Pakistan, while exercising his power under Article 45 of the Constitution cannot be impugned before us in the constitutional jurisdiction of this Court.
24. We, would, in view of above, dismiss the constitution petitions for the reasons enumerated above.
(RIAZ AHMAD KHAN) (MUHAMMAD AZIM KHAN AFRIDI)
Announced in open Court on 03-7-2012
According to certain critics the said judgment was not regarded commendable and became an off-screen justification warranting my unceremonial exit as Judge of the Islamabad High Court and deprivation of Mr. Justice Riaz Ahmad Khan from his legitimate expectancy of becoming the Chief Justice Islamabad High Court.
I believe that the President of Pakistan, being Head of State and representing the unity of the Republic, taking oath before entering upon office, in the larger interest of the State would act as required of him by the Constitution.
If directions to relevant state agencies/organizations for digging out the truth are issued, then the President of Pakistan would not only save his office from illegal appointments of Judges but would also control and curb the offending efforts of victimization and humiliation of innocent Judges.
Let me plead that the Judges delivering justice also need, expect and deserve justice and those offensively using, misusing or abusing official positions need to be brought to justice. Such functions require of the office of the President to bring about changes vital for upholding rule and supremacy of law in the country.
File attached or is available on http://www.azimafridi.com or http://www.azimafridi.blogspot.com/2012/12/the-folly-judges-holy-chief-justice.html
Legal Notice by Justice Afridi
Under the instruction of Mr. Muhammad Azim Khan Afridi, hereinafter also referred to as the Hon’ble Judge, I hereby serve you with the instant legal notice for the reasons and on the grounds stated below:
- That the Hon’ble Judge while performing his functions and discharging duties as Additional Judge Islamabad High Court, was nominated by the Chief Justice Islamabad High, for confirmation as Judge Islamabad High Court, placing him higher than his contemporaries i.e. Mr. Justice Noor-ul-Haq N. Qureshi and Mr. Justice Shaukat Aziz Siddiqui.
- That the meeting of Judicial Commission was convened and held on 22/11/2012 and in the said meeting Mr. Justice Muhammad Anwar Khan Kasi, Judge Islamabad High Court was also invited though he was not the senior most Judge of Islamabad High Court.
- That earlier to the above stated meeting, another meeting of the Judicial Commission dated 27/09/2012 was held in which Mr. Iqbal Hamid Ur Rahman Chief Justice Islamabad High Court was recommended as Judge Supreme Court of Pakistan and Mr. Justice Muhammad Anwar Khan Kasi Judge Islamabad High Court as the Chief Justice Islamabad High Court.
- That in the meeting dated 22/11/2012 the Judicial Commission recommended Mr. Justice Shaukat Aziz Siddiqui for confirmation, while Mr. Justice Noor-ul-Haq Qureshi was placed on extension for six months and Mr. Justice Muhammad Azim Khan Afridi was dropped on the charges of professional misconduct, details whereof were neither conveyed to his honor either earlier nor later, or till date.
- That the Hon’ble Judge wrote a letter dated 25/10/2012 for provision of material considered against him as charges of professional misconduct, corruption, illegal appointments etc.
- That the Hon’ble Judge also made a representation to the Judicial Commission dated 29/10/2012, accusing therein, inter alia, Mr. Justice Kasi for his illegal input and Mr. Justice Ijaz Afzal Khan for entertaining malice against him.
- That the Hon’ble Judge lodged a writ petition in Islamabad High Court for procuring the material and documents considered for his ouster but of no avail as the said writ petition is not being heard till date in-spite of its emergent status.
- The Hon’ble Judge made vigorous efforts to seek the protection of law and in the said directions also submitted an HR case before the Supreme Court of Pakistan via webpage followed by a letter to the Registrar Supreme Court of Pakistan.
- That the Hon’ble Judge has come to irresistible conclusion that his removal, based on malice was strategic, preplanned and for that illicit arrangement were plotted.
- That the Hon’ble Judge is entitled to seek justice and secure reliefs available to him under the Constitution and law including damages from the Judicial Commission collectively and from its Chairman and members distinctly in addition to his claims from Mr. Justice Muhammad Anwar Kasi who, one of the schemers, leveled unfounded allegations of corruption against the Hon’ble Judge in preparatory meeting held prior to the meeting of Judicial commission.
- That apart from the community of lawyers, inhabitants of FATA, Judges of High Courts and District Judiciary including staff members, litigants and all those knowing the Hon’ble Judge, hold him in high estimations.
- That the Hon’ble Judge and his family members are facing acute and recurring mental torture for the reasons and due to events likely to happen in the near future as the recommendations of the Judicial Commission in the above stated meetings, apart from purposely damaging the institution and justice sector of the country, are offending and tortious for the Hon’ble Judge and his family for the following reasons:
(i)Mr. Justice Iqbal Hameed Ur Rahman, Member Judicial Commission, was recommended for elevation as Judge Supreme Court of Pakistan though he was involved in numerous unconstitutional and illegal cases of appointments, promotions and absorptions in Islamabad High Court including appointment and promotion of Mr. Attiqur Rahman as Registrar Islamabad High Court who was appointed and then promoted without dossier. These illegal appointments are in the notice of the Chairman of the Commission what to say of certain members of the commission(ii) Mr. Muhammad Anwar Khan Kasi, Judge Islamabad High Court was recommended as Chief Justice inspite of the fact that he was also involved in illegal appointments including illegal appointment of his own brother Mr. Muhammad Idrees Kasi as Deputy Registrar.
(ii)The said appointments are also in the notice of the Chairman and certain members of the Commission.
(iii) Mr. Noor-ul-Haq N. Qureshi was recommended as Additional Judge IHC for six months inspite of illegal appointment of Ghawas Gul Mastoi, his nephew, as Assistant Registrar.
(iv) Mr. Shaukat Aziz Siddiqui was recommended as permanent Judge, though popular for not writing judgments. He is yet to write hundreds of judgments including judgments annulling certain illegal appointments made by the Chief Justice of the Islamabad High Court. Apart from the above references etc. pending against him were deliberately concealed and additionally illicit reputation which he earned due to his 2nd marriage was also kept aside.
(v) The Hon’ble Judge was not recommended for reasons illegally kept abreast by the Secretary Judicial commission at the instance of Chairman Judicial Commission and for his performances explained in “Dispatches” www.azimafridi.blogspot.comandArchives at webpage www.azimafridi.com
(vi)The Hon’ble Judge and his family members are constantly traumatized, disgraced, ridiculed, defamed and his career destroyed for which the Hon’ble Judge is justified to seek damages to the tune of rupees of one billion.
(vii)That the Hon’ble Judge and his family members are facing recurring mental torture for the above reasons and for the events likely to happen in future to the tune of rupees one million per month as the recommendations of the Judicial Commission in the above stated meeting being highly illegal, immoral and offending would be a source of constant torture for the Hon’ble Judge.
Through this legal notice you are therefore informed and requested to present the grievances of the Hon’ble Judge for rectification and payments as compensation for trauma and tortures referred to above within a period of 15 days otherwise the Hon’ble Judge would be constrained to sue all concerned for remedy and reliefs available to him under the Constitution and law.
Mian Muhibullah Kakakhel
Senior advocate Supreme Court Pakistan
A copy of this notice is kept in record and another sent to the Secretary Law and Justice Division for information and necessary action at his end.
WRIT PETITION FILED IN THE PESHAWAR HIGH COURT
Mr. Muhammad Azim Khan Afridi S/O Malik Zar Khan, (Additional Judge Islamabad High Court, Islamabad) presently under report to Peshawar High Court, Peshawar PETITIONER
- The President of Pakistan through Ministry of Law & Parliamentary Affairs Division Islamabad
- Govt. of Pakistan through Ministry of Law & Parliamentary Affairs Division Islamabad
- The Secretary, Judicial Commission of Pakistan, Supreme Court of Pakistan, Islamabad RESPONDENTS
PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN 1973
Respectfully Submitted that:
- That the petitioner was serving as District & Sessions Judge in the Province of Khyber Pakhtunkhwa, when elevated as Additional Judge Islamabad High Court against the seat reserved for FATA,
- That after taking oath of office as Additional Judge, the petitioner has discharged his duty and performed his functions meritoriously, honestly & with dedication so much so that right from the date of taking oath of office the petitioner had not availed any leave even for one hour and has worked hard, day and night in order to deliver and come up to the expectation of the community of FATA in general and the nation, public litigants and other stakeholders in particular.
- That while performing as Judge, the Chief Justice Islamabad High Court started assigning administrative duties to the petitioner immediately after his elevation.
- That vide circular no. Reg./IHC/2011/5021 Dated 24/11/2011, the Hon’ble Chief Justice Islamabad High Court nominated the petitioner to get completed the process of independent functionality of both the Civil District & Sessions Divisions of Islamabad Capital Territory by suggesting ways & means for
(i) Bifurcation of Judicial work,
(ii) Appointment of the Judicial Officers
(iii) The allied staff,
(iv) Their housing &
(v) Taking of all necessary steps in that regard.
5. That the petitioner was also appointed by the Hon’ble Chief Justice as “Inspection Judge” for the District Judiciary, Islamabad (East & West) & “In-charge Judge” of Judicial Branch of Islamabad High Court. That the petitioner successfully performed the said duties and achieved the said targets apart from other important assignment & thus successfully brought the High Court on the desired track.
- That Mr. Atiq-ur-Rehman, Ex-Registrar Islamabad High Court (now posted as OSD) who claims to be inducted in the District Judiciary by the Chairman Judicial Commission & allegedly enjoying close contacts with him was transferred from the office of Registrar and posted as OSD by the Hon’ble Chief Justice Islamabad High Court. That the said Registrar approached the Chairman Judicial Commission for cancellation of his transfer order which request of the Chairman of the Judicial Commission was regretted by the Hon’ble Chief Justice Islamabad High Court. That the said event, apart from annoying the Registrar & Hon’ble Justice Muhammad Anwar Khan Kasi, also annoyed the Chairman Judicial Commission and the episode was falsely attributed the to the petitioner.
- That the transfer of the said Registrar exposed numerous illegal appointments made in the High Court & District Judiciary made prior to elevation of the petitioner while certain appointments were made later on during the establishment of District Judiciary at the instance of tall & influential entities. The petitioner, being in-charge of the project wanted to annul the said process which also annoyed the Chairman & certain other members of the Judicial Commission.
- That meeting of Judicial Commission of Pakistan was convened on 22.10.2012 wherein Hon’ble Mr. Justice Muhammad Anwar Khan Kasi was also invited & allowed with an ulterior motive & preplanned scheme so as to charge & malign the petitioner.
- That Hon’ble Mr. Justice Kasi was neither holding the post of Chief Justice nor the senior most Judge of Islamabad High Court and as such he was debarred from participation in the meeting & influencing other members with his opinion. (The petitioner reserves his rights to proceed against all concerned in accordance with law).
- That participation of the Hon’ble Mr. Justice Muhammad Anwar Khan Kasi was neither a constitutional obligation nor required in view of clause 14 of Art. 175-A of the Constitution which explicitly debars seating a substitute.
- That the career & future of the petitioner was purposely destroyed for the above reasons & without any justification or reason, tangible or intangible, when he was not considered for confirmation in-spite of meritorious record, hard work, excellent decisions &, additionally, improving the administrative working in accordance with written directions of the Hon’ble Chief Justice Islamabad High Court.
- That the charges, what-so-ever, are never conveyed to the petitioner though the same was & always is a mandatory requirement of Constitution & law. That for discovering the reasons & securing the material, the petitioner addressed a letter dated 25th October, 2012 to respondent No.3 which is yet to be answered & order thereon conveyed to the petitioner “Copy of the letter is Annexure-A”.
- That apart from the above a representation was also preferred to the Judicial Commission through respondent no.3 which is also kept maliciously undecided. Copy of the same is annexed as Annexure “B” while copy of seniority list showing Hon’ble Mr. Justice Riaz Ahmad as senior Judge is Annexure “C”
- That the true facts are maliciously concealed by the Judicial Commission in order to avoid accountability & liability & to maliciously inflict damage to the bright future career of the petitioner apart from humiliating the dignity & honor of the petitioner, his family & community. Needless to add that the petitioner & his family is undergoing mental stresses & trauma due to offending action of the Judicial Commission regarding which the petitioner has also served a legal notice claiming damages & redress therein, copy whereof is annexed as Annexure “D”
- That, strangely and surprisingly, the petitioner has been allowed to join the District Judiciary to serve as District and Sessions Judge though he has been ostensibly ousted on the charges assassinating the character of the petitioner. Had the petitioner been found involved in such activities the petitioner would have never been allowed to serve as District & Sessions Judge. This aspect of the case clearly indicates malice, abuse & misuse of authority by the members of the Judicial Commission.
- That the petitioner instituted a constitutional petition in Islamabad High Court for procuring the said illicit documents however neither the constitutional petition was heard till date nor the said documents were provided to the petitioner clearly establishing the fact that there are no material available with the respondent no.3 warranting removal of petitioner. Copy of the Constitutional petition for procuring documents is annexed as Annexure “E”
- That it has come to the notice of petitioner that the petitioner was punished by the Chairman Judicial Commission in connivance with certain other members of Judicial Commission due to a judicial pronouncement in W.P. No.2009 of 2012 titled “Ch. M. Naeem Ali advocate and another -VS- Federation of Pakistan through Secretary, Ministry of Interior and three others” & Writ Petition No.2076 of 2012 titled ”Advocate, Malik Abdul Sattar Awan Versus Federation of Pakistan through Secretary, Ministry of Interior and three others” which constitutional petitions were heard and dismissed by a Division Bench graced by Hon’ble Mr. Justice Riaz Ahmad (who was not recommended as Chief Justice in-spite of seniority) & the petitioner as the judgment was authored by the petitioner & the convict Muhammad Basharat (a guard of Malik Riaz, Bahria Town) was acquitted on the basis of Presidential orders remitting the sentence (Copy annexed as Annexure “F”
- 17. That Peshawar High Court Bar Association has also expressed serious concern over the recommendation of Judicial Commission of Pakistan made in its meeting dated 22/10/2012. Copy of resolution is annexure “G”
- That after the illegal & offending ouster of the petitioner the summary of two Hon’ble Judges namely Mr. Justice Shaukat Aziz Siddiqui & Hon’ble Mr. Justice Noorul Haq N Qureshi was submitted to the president. That the said summary & another summary of the Judicial commission for appointing Mr. Justice Muhammad Anwar Khan Kasi as Chief Justice was returned & the President of Pakistan sought opinion of the Supreme Court under Art.186 of the Constitution which opinion is yet to be given by the August Supreme Court of Pakistan. The opinion sought for by the President of Pakistan on questions of law will have direct bearing on the case of the petitioner as a question of law regarding participation of Mr. Justice Kasi in the meeting & validity of such meeting is also made the subject matter of the reference & in such eventuality the proceedings & recommendations in the said meeting would be vitiated being void.
- That the respondent no. 2, on the basis of a short order passed by Supreme Court of Pakistan in case of one Nadeem Ahmad Advocate has moved a summary for approval of the President of Pakistan without waiting for the opinion of the Supreme Court of Pakistan which is mandatorily required as desired by the President of Pakistan & which the August Supreme Court of Pakistan is going to give within a couple of days. Additionally the petitioner was maliciously not made a party to the said petition with an object to damage his career without affording him an opportunity of being heard.
- That the antecedent of the recommended Judges are to be enquired into by the respondents no.1 & 2 & that without such enquiry the respondent no.3 would be achieving the desired result by appointing such Judges who lack the essential credentials.
- That action of respondent no. 2, in view of the above, is malicious, contrary to law & mandates of constitution & therefore requires immediate interference by this Court in its extraordinary Jurisdiction of this Court.
- That the petitioner has got no other adequate & alternate remedy & that this Hon’ble Court has got the Jurisdiction to entertain the constitutional petition & grant the relief.
It is, therefore, prayed that meeting of the Judicial Commission dated 22/10/2012 and its proceedings may kindly be declared illegal, without lawful authority, coram non-judice, malicious and of no legal effect.
It is further prayed that the respondents be restrained from passing / issuing any orders/ notifications detrimental to Constitution & law.
It is further prayed that the respondent no.1 may graciously be directed to perform his functions in accordance with the constitution of the Islamic Republic of Pakistan and the law and not to accept any recommendation contrary to his constitutional functions, official conduct and without verification of antecedents and credentials of the recommended judges.
It is also prayed that the respondents be directed to provide opportunity of hearing to the petitioners.
It is earnestly prayed that till the decision of the constitutional petition respondents be restrained from passing/ issuing any adverse orders/ notification against the interest of the petitioner.
It is further prayed that the respondent no.3 be directed to produce the record before the court for perusal on the next date of hearing
Dated: 26/12/2012 Through Mian Muhibullah KakaKhel Senior Advocate, Supreme Court of Pakistan.
IN THE PESHAWAR HIGH COURT, PESHAWAR
Mr. Muhammad Azim Khan Afridi ———— (PETITIONER)
The President of Pakistan & 2 others —— (Respondents)
APPLICATION FOR SUMMONING OF RECORD
1) That the above-captioned writ petition has been filed along with the instant application, wherein no date of hearing has been fixed so far.
2) That the petitioner instituted a constitutional petition in Islamabad High Court for procuring the said illicit documents however neither the constitutional petition was heard till date nor the said documents were provided which deprived the petitioner from availing certain legal remedy available to him under the law.
3) That requisitioning of the above said record is essential for just decision of this writ petition.
4) That the petitioner has prima facie case and is sanguine of its success.
It is therefore prayed that minutes/record of meeting of Judicial Commission of Pakistan convened on 22.10.2012 may kindly be summoned/requisitioned from respondent No.3 for just decision of this writ petition.