Notices were issued on the last date of hearing. We enquired from the learned Additional Prosecutor General, National Accountability Bureau ('NAB') whether he is supporting the appeals or opposing them and he stated that NAB is supporting the appeals. Notices had also been issued to the Advocate-Generals of the provinces and the Islamabad Capital Territory and, except the Advocate-General of the Khyber Pakhtunkhwa, all are supporting the appeals. The Attorney- General for Pakistan also supports the appeals.
2. The respondent No. 1 in Intra Court Appeals No. 2 and 3 of 2023 and respondent No. 3 in Intra Court Appeal No. 4 of 2023, namely, Mr. Imran Ahmed Khan Niazi ('Mr. Niazi') is presently confined in Central Jail, Rawalpindi and was sent the certified copy of the order dated 31 October 2023 of this Court and the paper-books of the appeals. Our order had permitted Mr. Niazi to be represented by counsel but he has written saying that he wants to represent himself. Therefore, the Federal Government and the Government of the Punjab are directed to make arrangements to ensure that Mr. Niazi is able to hear Court Proceedings and is able to address this Court with regard to the appeals through video-link on the next date of hearing.
We note that in the Constitution Petition No. 21 of 2022, filed by Mr. Niazi, he was represented by seven counsel, including learned senior counsel Khawaja Haris Ahmed. Therefore, it would be appropriate to issue notice to the learned Khawaja Haris Ahmed to assist this Court as he had already conducted the case wherefrom these appeals arise. In case learned senior counsel expects to be paid for services he should submit his bill, and this Court will attend to the same. It is clarified that this does not mean that Mr. Niazi will not be allowed to address this Court to rebut the submissions of the learned counsel representing the appellants.
3. Learned senior counsel Mr. Makhdoom Ali Khan has formulated the following contentions, which are adopted by learned senior counsel Mr. Farooq H. Naek, the learned Attorney-General for Pakistan and the learned Advocate-Generals of the three provinces and of Islamabad Capital Territory, except that of Khyber Pakhtunkhwa, who supports the majority judgment, as under: i) The majority judgment is a nullity in law as it was passed by a Bench of this Court which was not constituted in accordance with sections 2, 3 and 4 of the Supreme Court (Practice and Procedure)
Act, 2023 ('the Act') and resultantly it is coram non judice. The Act was enacted on 21 April 2023 and challenge to most of its provisions, including sections 2, 3 and 4, was rejected by this Court in the reported decision in the case of Raja Amer Khan v Federation of Pakistan (PLJ 2024 Supreme Court 114). Attention to this aspect was specifically brought to the Court by filing a separate application (CMA No. 7066 of 2023) but the order dated 29 August 2023 by a majority of two to one did not consider the grounds raised in the said application, however, the minority order of the same date did so and is in accordance with the Act. ii) The Constitution Petition filed by Mr. Niazi under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 ('the Constitution'), was not maintainable in the light of the decision of this Court in the case of Benazir Bhutto v Federation of Pakistan (PLD 1988 Supreme Court 416) as a Writ Petition No. 2557 of 2021 was filed by the Islamabad High Court Bar Association, through learned senior counsel Mr. Hamid Khan, and which was pending adjudication. Therefore, this Court should have awaited the decision thereof, where-after there was the possibility to assail the decision therein before this Court through a petition for leave to appeal or an appeal. iii) The amendments made to the National Accountability Ordinance, 1999 vide National Accountability (Amendment) Act, 2022 and National Accountability (Second Amendment) Act, 2022 ('the Amending Acts') were struck down despite the fact that many of the provisions thereof were borrowed from the ordinances, enacted by the Government of which Mr. Niazi himself was the Prime Minister, as under: Ordinance No. XXI of 2019 ('First Amendment Ordinance')
Ordinance No. XXVII of 2019 ('Second Amendment Ordinance')
Ordinance No. V of 2021 ('Third Amendment Ordinance')
Ordinance No. XXIII of 2021 ('Fourth Amendment Ordinance')
Ordinance No. XXVI of 2021 ('Fifth Amendment Ordinance')
(collectively referred to as 'the Amending Ordinances'). iv) Mr. Niazi had not approached this Court in a bona fide manner and his antecedents prevented him from challenging the Amending Acts, many provisions whereof were the same as those in the Amending Ordinances, which were promulgated on the advice he had tendered to the President of Pakistan, which the President can only do if 'Circumstances exist which render it necessary to take immediate action' as stipulated in Article 89(1) of the Constitution. Mr. Niazi also did not have the requisite locus standi since the Amending Acts did not adversely personally affect him.
Consequently, this Court had carried out an academic exercise as there was no actual controversy before it in that neither his right nor that of any person had been adversely affected nor were the Amending Acts ex-facie discriminatory. v) In the constitutional scheme it is for Parliament to legislate and courts to adjudicate and courts make every effort to uphold legislation unless it is unconstitutional, and if there are two views possible the one in favour of upholding the legislation is always preferred. vi) The Amending Acts had sought to reduce the rigors of the National Accountability Ordinance, 1999, therefore, the same could not be stated to be violative of the citizens Fundamental Rights, which the Supreme Court may enforce under Article 184(3) of the Constitution. vii) The matter of retrospectivity was misunderstood and was not attended to in terms of the Constitution. Article 12 of the Constitution prohibits retrospective punishment but does not prohibit or restrict retrospective relief or benefit to be granted. viii) Some of the amendments contained in the Amending Acts sought to give effect to the decisions of the superior courts, therefore, an anomalous situation has been created as the decisions of the superior courts, which were not under challenge, have been effectively negated. ix) The majority judgment has re-written the Constitution and a number of statutes by creating an artificial distinction between civil servants and public servants and elected holders of public office and persons in the service of Pakistan. The minority judgment has correctly observed this. x) The majority judgment accepted the limit of hundred million rupees prescribed in the Standard Operating Procedures ('SoPs') of NAB with regard to the cases it can investigate and send for trial but struck down legislation which had increased the limit to five hundred million rupees. SoPs, which are an administrative measure, cannot prevail over legislation enacted through the Amending Acts. xi) The Amending Acts did not decriminalize any offence, and had only changed what may be investigated by NAB and the forum of the criminal trial, no person can be adversely affected with such change. xii) If the Legislature could enact the NAB Ordinance it is also empowered to repeal it. However, in the present case only certain amendments were made to the NAB Ordinance.
5. Copy of this order be sent to learned senior counsel Khawaja Haris Ahmed and to Mr. Niazi to help them to formulate their responses to the aforesaid submissions.
6. NAB is directed to provide the following information for the last ten years:
(a) The number of cases it investigated;
(b) The number of prosecutions which were successful, and convictions sustained by the High Court and the Supreme Court;
(c) The amounts recovered;
(d) Where was the amount deposited, and whether any portion was retained by NAB and if so the quantum thereof; and
(e) The amount spent on NAB.
7. To come up on Thursday, 16 May 2024 at 11.30 am.
Athar Minallah, J.- The application was filed for seeking an order of the Bench to resume the live streaming of the proceedings. It is not disputed that during the last hearing held on 16.05.2024 the proceedings were not live streamed and no order to this effect had been passed by the Bench.
However, the proceedings during the previous hearings held on 31.10.2023 and 14.05.2024 were streamed live. The questions raised through the application are; whether live streaming of the proceedings before us could have been discontinued and whether, by doing so, the principles enunciated by a larger Bench of this Court were breached and the people at large were deprived of their right, inter alia, guaranteed under Article 19-A of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution").
2.The respondent, Imran Ahmed Khan Niazi ('respondent'), is the founder and undisputed leader of a major political party, Pakistan Tehrik-e-Insaaf. The respondent, who at present is incarcerated in the Central Prison, Adiala had challenged the vires of the amendments brought about in the National Accountability Ordinance, 1999 ('Ordinance of 1999'). The petition was entertained and heard by this Court, invoking its jurisdiction conferred under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 ('Constitution'). This Court, by a majority of 2 to 1, allowed the petition and declared the amendments ultra vires. The appeal before us essentially arises from and is a continuation of the proceedings initiated by this Court under Article 184(3) of the Constitution. The request made by the respondent to enable him to argue the matter was allowed vide order dated 14.05.2024 and he made his first appearance on 16.05.2024. It was on the said date that live streaming was discontinued without an order having been passed by the Bench. In order to answer the aforementioned questions, it would be beneficial to examine the principles enunciated by a larger Bench of this Court in Justice Qazi Faez Isa's case.[1] Justice Qazi Faez Isa's case; principles enunciated by this Court regarding live streaming and the duty of this Court in this context:
3. A sitting Honourable Judge of this Court had filed an application seeking relief of ordering live streaming of the proceedings of his case. The application was strongly opposed by the Federal Government and the respondent then was holding the public office of the Prime Minister. A larger Bench of this Court, consisting of ten judges, had examined the matter and the judges were unanimous that the right of the people to have access to information in matters of public importance under Article 19-A of the Constitution was recognised. Though the application was dismissed by 6 to 4 but the differences were regarding the manner in which the recognised right could be enforced and executed by this Court. The majority was of the view that the modalities and details were to be decided by the Full Court while the minority had ordered live streaming of the proceedings in the matter which was being heard. The judgment has been implemented by giving effect to the recognised right as will be discussed later. As has been noted above, the dissent was to the extent of the execution and mode of enforcement of the recognised right. However, the minority view had elaborately dealt with the principles in the context of the unanimously recognised right which are summarised as follows; i) The right conferred by Article 19-A of the Constitution is operative and justiciable. ii) The right to have access to information in all matters of public importance conferred by Article 19-A is a corrective apparatus, which allows public scrutiny of the working of public authorities and institutions and makes them answerable to the public. iii) It ensures transparency and accountability in the functioning of all public authorities and institutions. iv) The judicial definition of the expression 'public importance' as interpreted by this Court in Manzoor Elahi[2] and Benazir Bhutto cases[3] is also attracted in relation to the expression 'matters of public importance' used in Article 19-A. v) The expression 'matters of public importance' used in Article 19-A means those matters that pertain to and affect the public at large, a whole community, and not an individual or a small group of individuals. It includes matters in which the general interest of the whole community, as opposed to the particular interest of individuals, are directly or vitally concerned. vi) Cases heard by this Court on its original jurisdiction under Article 184(3) of the Constitution, including review petitions and other matters arising therein, are matters of public importance within the meaning and scope of that expression used in Article 19-A of the Constitution. vii) The public has a fundamental right under Article 19-A of the Constitution to have access to information in its original jurisdiction under Article 184(3) of the Constitution, including the right to know and see how court proceedings in these cases are conducted by the Court. viii) The right conferred under Article 19-A is a positive right. The right not only operates as a limitation on the power of the State to act in a manner that would negate the right of the citizen to have access to information in all matters of public importance but also requires the State to take some appropriate actions to fulfil this right. ix) Article 19-A of the Constitution creates a positive obligation on all State organs, authorities and institutions, including the judiciary, to take necessary measures to ensure the realization of the fundamental right of citizens to have access to information in matters of public importance. x) Article 19-A can only be interpreted with a progressive, liberal and dynamic approach and it is the duty of every institution to explore modern means for the enforcement of the right guaranteed there under, which have been made available by the latest technology of the day. xi) It is a duty of this Court to abide by the principles of openness and transparency because it has been consistently held for other organs of the State that their functioning should manifest the said principles. xii) The access of the public to the court proceedings in cases heard under Article 184(3) of the Constitution through live streaming would serve democracy as much as it would make the exercise of judicial power by the court transparent. xiii) Live streaming (audio and video) of the court proceedings in cases heard by this Court on a petition or Suo Moto, under Article 184(3) of the Constitution, must be made available for the information of the public through a link on the official website of the Court, in conferment of the fundamental right of the public and for the fulfilment of the obligation of the Court under Article 184(3) of the Constitution. xiv) The right to have access to court proceedings through live streaming is operative and justiciable even without the enactment of a law that may provide for the regulation of and reasonable restriction on such right.
4. This Court has thus declared access of the public to the court proceedings in all cases in matters of public importance through live streaming as a recognised fundamental right guaranteed under Article 19-A of the Constitution. As a corollary, the cases entertained and heard under Article 184(3) of the Constitution, including other matters arising therein, necessarily fall within the ambit of the expression 'matters of public importance. An appeal, therefore, arising from the proceedings under Article 184(3) of the Constitution is a matter of public importance and, thus, in each case the public has a right to have access to the court proceedings through live streaming. As a consequence, the discretion exercised by a Bench to order live streaming or otherwise, has to be guided and in accordance with the right guaranteed under Article 19-A. The exercise of discretion not to order live streaming of court proceedings by a Bench, to which the facility is available, will be lawful and justified only in exceptional circumstances and for compelling reasons. Keeping in view the importance of the guaranteed fundamental right, the public cannot be deprived of access to the court proceedings through live streaming except in exceptional circumstances and for compelling reasons. Moreover, once the proceedings in a particular case have been live streamed then they cannot be ordered to be discontinued unless the Court is satisfied that it was necessary to do so in the public interest for a demonstrably substantial reason. It is manifest from the explicitly recognised right that the public is not required to put the exercise of this crucial fundamental right into motion by making a request or filing an application, because ensuring the enforcement of the right of the public to have access to court proceedings through live steaming is essentially a duty and obligation of this Court.
5. Pursuant to the above principles enunciated in the Justice Qazi Faez Isa case, the Full Court, in its meeting held on 18-09-2023, decided to start a pilot project and a committee consisting of two judges was constituted to execute the pilot project and to consider future telecast/streaming and to work out modalities regarding telecast/streaming of other Courts. The pilot project was successfully executed and as a consequence all cases heard under Article 184(3) in Court Room No. l have been live streamed since then. A report dated 16-10-2023, was forwarded by the committee, proposing modalities regarding telecast/streaming of the Courts. The framing of SOPs is subject to approval of the modalities proposed by the committee in its report by the Full Court.
However, non framing of SOPs is not in any manner an impediment to give effect to the right recognised by a larger Bench of this Court and this is obvious from the live streaming of all matters heard by the Bench No. 1 pursuant to the successful execution of the pilot project. Notwithstanding the non framing of the rules, all cases entertained and heard under Article 184(3) in Court Room No. 1 are required to be live streamed in order to enforce the right of the people guaranteed under Article 19-A of the Constitution unless the Bench is satisfied that exceptional circumstances exist to order otherwise and that doing so would be in the public interest.
The public importance involved in the appeal before us.
6. As already noted, all cases entertained and heard by this Court in exercise of the jurisdiction under Article 184(3) are matters of public importance in the context of the fundamental right guaranteed under Article 19-A of the Constitution. The appeal before us has arisen from the proceedings heard by this Court under Article 184(3) and, therefore, it fulfils the condition of falling in the category of a matter of public importance. The public importance in case of the appeal in hand cannot be understated. The vires of the amendments made in the Ordinance of 1999 were challenged by the respondent. The role of the National Accountability Bureau ('Bureau') itself is a matter of highest public importance. The Bureau was the successor of the anticorruption agency of the Ehtesab Cell ('Cell') established under the Ehtesab Act, 1997 ('Act of 1997'). By now there is sufficient documented evidence to show that the Cell or the Bureau, as the case may be, were established mainly to hold the chosen representatives of the people accountable for corruption and corrupt practices. It was extensively used for political engineering. The draconian and arbitrary powers were used to intimidate, harass and humiliate opponents and the critics of the government. The arbitrary arrests and humiliation of dissenters and political opponents led to grave violations of the fundamental rights guaranteed under the Constitution. Almost all those who had held the public office of Prime Minister had fallen victim to the draconian and arbitrary powers of the Cell or the Bureau, as the case may be. The violation of the right to fair trial and due process through the use of arbitrary powers was highlighted by various constitutional courts in their judgements, including this Court. The arbitrary exploitation of the power vested in the Cell and the Bureau to undermine democracy and democratic institutions was explicitly highlighted by this Court in the Khawaja Saad Rafique case[4] and the relevant portion is reproduced as follows: "66. Rather than doing any good to the country or our bodypolitic and cleansing the fountainheads of governance, these laws and the manner in which they were enforced, caused further degeneration and created chaos, since the same were framed and applied with an oblique motive of arm twisting and pressurizing political opponents into submission, subjugation and compliance, or remove them from the electoral scene at least temporarily. These laws were successfully employed as tools to change political loyalties, for splintering and fracturing political parties.
Pygmies were selected, nurtured, promoted, and brought to prominence and power. People with notorious backgrounds and criminal credentials were thrust to rule us in various capacities with predictable results. Similarly, those, who caused death, destruction and mayhem in our society were trained, financed, protected, promoted and eulogized, thus, turning them into Frankensteins.
Meanwhile corruption, misconduct and malpractice in governance kept growing at exponential rates and became all pervading. None of the state institutions which so ever remained free from this morass.
67. The NAO was promulgated by the Military regime of General Pervaiz Musharaf on 16.11.1999, repealing the previously enacted Ehtesab Act, 1997. The NAB Ordinance from its very inception became increasingly controversial, its image has come under cloud and there is a wide spread perception of it being employed as a tool for oppression and victimization of political opponents by those in power. It is frequently alleged that the Bureau is being flagrantly used for political engineering. Discriminatory approach of NAB also is affecting its image and has shaken the faith of the people in its credibility and impartiality. The bureau seems reluctant in proceeding against people on one side of the political divide even in respect of financial scams of massive proportion while those on the other side are being arrested and incarcerated for months and years without providing any sufficient cause even when the law mandates investigations to be concluded expeditiously and trial to be concluded within 30 days. Nonetheless, investigation is often not concluded for months and cases remain pending for years. It is because of lack of professionalism, expertise and sincerity of cause that the conviction rate in NAB cases is abysmally low. The above is certainly not serving the national interest, rather causing irretrievable harm to the country, nation and society in multiple ways. It was in view of the above distressful situation that the former Chief Justice Asif Saeed Khan Khosa, speaking for this Court during the opening ceremony of the Judicial Year 2019-20 observed as follows:- "We as a relevant Organ of the State also feel that the growing perception that the process of accountability being pursued in the country at present is lopsided and is a part of political engineering is a dangerous perception and some remedial steps need to be taken urgently so that the process does not lose credibility. Recovery of stolen wealth of the citizenry is a noble cause and it must be legitimately and legally pursued where it is due but if in the process the constitutional and legal morality of the society and the recognized standards of fairness and impartiality are compromised then retrieval of the lost constitutional and legal morality may pose an even bigger challenge to the society at large in the days to come".
7. The distinguished human rights defender and journalist, late I.A Rehman, in one of his publications[5] had referred to a fact sheet prepared by a parliamentarian, highlighting twelve deaths for which the Bureau was held responsible. The former Prime Minister, Mohtarma Benazir Bhutto Shaheed and her husband Mr. Asif Ali Zardari, who is the current President of the Islamic Republic of Pakistan, were acquitted by this Court[6] because it was declared that the trial was not fair on account of the bias of the judges on the Ehtesab Branch. The powers of the Bureau were subsequently used to prosecute, humiliate and violate the dignity of other former Prime Ministers, Mian Mohammad Nawaz Sharif, Shahid Khaqan Abbasi, Yousaf Raza Gillani etc. It is ironic that at present the respondent has fallen a victim after his removal from the office of Prime Minister. The perception that the establishment and complicit courts are responsible for such grave abuses of human rights and humiliation of the representatives of the people does not appear to be unfounded. The respondent, a former Prime Minister, had claimed in an interview reported in leading newspapers[7] that the former Chief of Army Staff, General (rtd.) Qamar Javed Bajwa, used to call the shots while he was holding the office of Prime Minister. While referring to the former Chief of Army Staff he had stated that, 'he was a super king. He was above everyone. He was controlling NAB (National Accountability Bureau) and no one could be held accountable without Bajwa's nod'. Another former Prime Minister Mian Muhammad Nawaz Sharif was reported to have stated, while addressing his party's Central Executive Committee, that according to his information someone else was "running the parliament".[8] These statements made by the two former elected Prime Ministers were, prima facie, confirmed by the former Chief of Army Staff, General (retd.) Qamar Javed Bajwa during his last public address[9], when he admitted interference of his institution in politics. He was reported to have acknowledged that the reason for criticism of the institution was its 'interference in politics for the last 70 years which was unconstitutional. He explicitly stated; "that is why in February last year the army, after great deliberations, decided that it would never interfere in any political matter". The role of this Court in the perpetuation of brazen violations of fundamental rights through the use of arbitrary and draconian powers by the Bureau and its complicity, despite being guardian of the guaranteed rights, is a blemish difficult to wash away. Can there be a matter of higher public importance than the amendments made in the Ordinance of 1999 followed by declaring them unconstitutional. There is yet another crucial factor.
8. When the deposed Prime Minister Zulfiqar Ali Bhutto was arrested and sent to the gallows by this Court he was not an ordinary prisoner or convict. He was a victim of the coercive apparatus of the State imposed by a uniformed usurper, who was purportedly given legitimacy by this Court.
Likewise, Benazir Bhutto Shaheed and Mian Mohammad Nawaz Sharif were made to profoundly suffer on account of the grave abuse of the powers vested in the Bureau. They were not ordinary prisoners and convicts because their persecutions were perceived to be motivated. They had millions of followers and the perception that, as representatives of the people, they were being humiliated and harassed for other than bona fide reasons on the basis of alleged corruption and corrupt practices at the behest of unelected office holders was not without substance. It is ironic that yet another elected former Prime Minister, the respondent, is incarcerated today and facing multiple trials, some having ended in convictions and also set aside by appellate forums. The respondent, like other former elected Prime Ministers, has millions of followers across the country as has become evident from the results of the last general elections. He is definitely not an ordinary prisoner or convict. The perception of the existence of a coercive apparatus of the State cannot be ignored by a constitutional court, particularly having regard to the unjustified treatment of representatives of the people in the past. The perception of complicity of this Court in or by allowing the elected representatives to be humiliated, harassed and persecuted for other than bona fide reasons is not unfounded. This Court, after more than four decades, has recently attempted to remedy the grave wrong done in denying an elected Prime Minster, Zulfiqar Ali Bhutto, the right to a fair trial but regrettably the damage was irretrievable. The chequered history and role of this Court in relation to the treatment of elected representatives has remained unflattering. The approach of this Court, therefore, should be to err in favour of the millions of followers and their representatives now, lest attempts be made after decades to remove an irretrievable blemish. The last seventy six years of treatment of elected representatives leaves no other choice for a constitutional court but to exercise discretion in favour of caution. The Courts and the judges can no more bury their heads in the sand by ignoring the obvious realities. The reported restrictions on freedom of expression are manifest from the fact that censorship has been imposed on court reporting as well. The existence of the coercive apparatus of the State is also manifest from the reported grave abuses of powers and the consequent infringement of the guaranteed rights. In this background, it becomes inevitable for this Court to walk the extra mile to ensure transparency and enforcement of the guaranteed right under Article 19-A of the Constitution by giving access to the public to the court proceedings through live streaming. Denial of access will unjustifiably give rise to suspicions and erode the confidence of the people in this Court. It is an obligation for this Court to be seen as impartial, fair and independent and to dispel any perception to the contrary. The trust of the people will be maintained and promoted by enabling them to know and see for themselves the court proceedings.
9. There is no substantive reason nor exceptional circumstances exist for denying the public their right to have access to the Court proceedings through live streaming. In the circumstances, denial of this guaranteed right will amount to violating the principles laid down in the Justice Qazi Faez Isa case, as highlighted above.
10. The above are the reasons for allowing the application and ordering access to the public to the proceedings in the case in hand through live streaming.
ORDER Dated: 31-10-2023
1. Mr. Saad Mumtaz Hashmi, learned ASC for the appellant in Intra Court Appeal No. 02/2023, at the outset states that this Court, comprising of the Full Court, had sustained the Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), enacted on 21 April 2023, and held it to be in accordance with the Constitution of the Islamic Republic of Pakistan ('the Constitution'). The Act provides a mechanism for the constitution of benches in its section 2, which may be considered to be a procedural matter, however, its section 4 stipulates that, 'where interpretation of the constitutional provisions is involved' a bench of this Court comprising of not less than five judges must hear the case. However, learned counsel submits, that a three-member Bench of this Court vide judgment dated 15 September 2023 decided the Constitution Petition No. 21/2022, wherein the amendments made to the National Accountability Bureau Ordinance, 1999 ('NAB Ordinance') were challenged, and the majority held that most provisions thereof were unconstitutional, which only a bench of not less than five judges of this Court could have done. The contention of the learned Mr. Saad Hashmi is supported by the learned Attorney-General for Pakistan and learned senior counsel Mr. Farooq H. Naek.
2. Mr. Naek states that he too has assailed the majority judgment in Intra Court Appeal No. 03/2023 on behalf of a private person who was an accused. He states that as a matter of abundant caution he has also filed an application for impleadment, if objection to the non-maintainability of the appeal was taken, which he apprehended since the appellant in Constitution Petition No. 21/2022.
However, he does not now press the application seeking impleadment, since the appeal was numbered/registered, without objection. Therefore, the said application is dismissed as not pressed. He further states that on behalf of Basharat Mirza and Abdul Jabbar he has filed separate review petitions, but the same have not been numbered as yet, which he also does not press.
Therefore, the said review petitions to be treated as withdrawn.
3. Amendments to the NAB Ordinance were made, as under:
(1) National Accountability Bureau (Amendment) Act, 2022 enacted on 22 June 2022;
(2) National Accountability Bureau (2nd Amendment) Act, 2022, enacted on 12 August 2022; and
(3) National Accountability Bureau (Amendment) Act, 2023, enacted on 29 May 2023.
Hereinafter respectively referred to as '1st Amendment', '2nd Amendment' and '3rd Amendment' and collectively as 'the Amendments'.
4. It is submitted that though the 3rd Amendment was in the field when the said Constitution Petition No. 21/2022 was being heard; six hearings took place after its promulgation, yet the impugned judgment did not attend to it, and that even if the impugned judgment is sustained the question of how trials will proceed when proceedings before other (non Accountability) Courts had taken place, and reference is also made to sections 231 and 350 of the Code of Criminal Procedure, 1898 and section 35 of the NAB Ordinance, and it is stated that the 3rd Amendment had attended to matters as mentioned in these provisions, but the impugned judgment does not address the 3rd Amendment, which has created an anomalous situation.
5. Criminal Misc. Applications No. 9264 and 9266 of 2023: Notice. Till the next date of hearing the Accountability courts may proceed with trials but shall not announce final judgment.
6. On 11 October 2023 this Court had announced the order in Constitution Petition No. 6/2023 etc., however, detailed reasons have not been given as yet. Therefore, it would be appropriate to fix these appeals after the release of the detailed reasons in the said cases. However, to save time let notices be issued to the respondents. Since the interpretation of the Constitution, Federal laws and as trials which the Amendments had referred to courts in the provinces and to the ordinary courts in the Islamabad Capital Territory, which has been reversed by the impugned judgment, notices to the Attorney-General for Pakistan and the Advocate-Generals of all the provinces and the Islamabad Capital Territory be also issued under Order XXVII-A of the Code of Civil Procedure, 1908.
Copy of the order passed to accompany the notices. The incarcerated respondent be served through the concerned Jail Superintendent and be provided copies of the appeals, and if he wants to be represented the Jail Superintendent should do the needful.
ORDER Dated: 01-06-2024 CMA No. 5172/2024
1. Through this application it is prayed by the learned Advocate-General of Khyber Pakhtunkhwa that these court proceedings be live-streamed. The only reason given in support of the application is that the 'non live showing of only the above mentioned case amongst others is discrimination'.
However, the reason is factually incorrect because only a very few cases have been/are live- streamed. There are also instances of cases which were initially live streamed but in the interest of justice it was discontinued. The application also does not cite any law in its support. The learned Advocate-General surely must know that Article 25 of the Constitution stipulates that all citizens are equal before the law and are entitled to equal protection of law, but the application does not say how the Government of Khyber Pakhtunkhwa is being denied equality or equal protection of law. Therefore, on this ground alone the said application could be dismissed, but we did not do so and have decided it on merits.
2. A proper consideration of the request necessitates context. Vide order dated 13 April 2021 (passed as CMA No. 1243/2021 in CRP No. 296/2020) this Court had held that: '...right of the people to have access to information in matters of public importance under Article 19-A of the Constitution is recognized, the details and modalities of which are to be decided by the Full Court on the administrative side'.
3. A Full-Court Meeting was held on 18 September 2023 in which it was decided, by majority, that: 'It was resolved that a pilot project may be started with telecasting cases fixed before the Full Court Bench today, that is, regarding the Supreme Court (Practice and Procedure) Act, 2023 and it must be telecast live, to assess the short comings and to formulate modalities in an effective manner.'
'A Committee comprising of Hon'ble Justice Muhammad Ali Mazhar and Hon'ble Justice Athar Minallah was also constituted to consider future telecast/streaming and work out the modalities regarding telecast/streaming of other Court cases in the shortest possible time.'
4. Subsequently, Office Order No. F.1/17/2009(201)-SCA dated 18 October 2023 was issued, which is reproduced hereunder: 'The Full Court in its meeting held on 18.09.2023 constituted a Committee comprising Hon'ble Justice Muhammad Ali Mazhar and Hon'ble Justice Athar Minallah to consider future telecast/live streaming and to work out the modalities regarding telecast/streaming of the Court hearings
2. This issues with the approval of the Hon'ble Chief Justice of Pakistan.'
The Committee's report dated 16 October 2023 attended to the technical aspects of the matter, and concluded by stating that 'We can also frame the Rules or SOPs to be followed' with regard to live streaming, but this has not yet been done.
5. For the first time in its history, on 18 September 2023, the proceedings of the Supreme Court were live broadcast and then live streamed. Thereafter, from time to time, matters which were considered to be of public interest were live-streamed; 40 hearings have so far been live- streamed. This initiative was taken to provide to the general public and lawyers throughout Pakistan direct access to the courtroom in respect of matters of public interest. The objective was manifold, including: educational, openness and transparency, forestalling misreporting or one- sided reporting, facilitating lawyers on how best to articulate their propositions, how to effectively conduct cases and how to behave in the courtroom.
6. However, in live-streaming cases there is always a possibility that the facility may be misused or exploited for ulterior or personal purposes. There is also the possibility of grandstanding while the nation watches. This Court must be vigilant against such misuse and/or exploitation.
7. Mr. Imran Ahmed Khan Niazi (Mr. Niazi) filed a constitutional petition (CP No. 21/2022) directly in the Supreme Court, under Article 184(3) of the Constitution of the Islamic Republic of Pakistan. Mr. Niazi had engaged the services of Mr. Muhammad Amir Malik as his Advocate-on-Record and a large number of lawyers represented him[10] in CP No. 21/2022; Senior Advocate Khawaja Haris Ahmad was his lead counsel.
8. 53 hearings of CP No. 21/2022 were held and, as per the record, Mr. Niazi did not personally attend a single hearing. And, neither he, the Government of Khyber Pakhtunkhwa nor any other party requested to live broadcast/stream the hearings.
9. Against the Judgment dated 15 September 2023 passed in CP No. 21/2022 two intra court appeals were filed (ICA Nos. 2 and 3 of 2023). Notices of the appeals were served on Mr. Niazi through the Jail Superintendent since he is incarcerated. Mr. Niazi submitted that he will represent himself. Therefore, directions were issued to connect him to this Court through video-link, which was done. On 30 May 2024 Mr. Niazi requested access to counsel and that he wanted to consult with Senior Advocate Khawaja Haris Ahmad. We directed that whenever the said learned Senior Advocate wants to, he, along with two other lawyers, may meet Mr. Niazi with regard to these appeals. Therefore, since Mr. Niazi is now represented he need not be provided video-link facility, however, this facility is being continued.
10. The Government of Khyber Pakhtunkhwa was not arrayed by Mr. Niazi as a party in CP No. 21/2022, nor did it seek to be arrayed as a party. And, it did not participate in a single hearing. Since it was not a party in CP No. 21/2022 the Government of Khyber Pakhtunkhwa was not arrayed as a party in these appeals.
11. The public has shown little or no interest in the matter of whether the amendments made to the National Accountability Ordinance, 1999 are sustainable on the constitutional plane, nonetheless this Court, on its own volition was live-streaming the hearing of these appeals.
12. However, when the head of a political party wants to be heard, who is not an Advocate of this Court, there is a real probability that these hearings may be used for political purposes and point scoring and in respect of matters which do not concern these appeals. This was a paramount consideration when we had dismissed the application. And, our apprehension proved correct later in the day. When Mr. Niazi addressed this Court on (30 May 2024) he also mentioned other cases, the general elections held on 8 February 2023, a commission of inquiry and his incarceration; all these matters have nothing to do with the subject matter of these appeals. This cannot be permitted as it would thwart the proper administration of justice. Commenting on matters not under consideration may affect public perception. The rights of those who are not before us, including their fundamental right to fair trial and due process may also be affected.
13. The application, in addition to being not maintainable, has no merit. Surprisingly, the learned Advocate-General has also not stated why the sudden interest, or desire, for live-streaming, when his Government did not join the hearings of CP No. 21/2022, let alone make a similar request when this Court was hearing the petition. Considerable time of this Court was unnecessarily taken by attending to this application, which for the stated reasons is dismissed.
14. In conclusion, we would like to add that while a request to live broadcast or live-stream may be submitted, and may also be objected to, it is clarified that this, as matters presently stand, is in the exclusive domain of this Court.
JUDGMENT Dated: 06-09-2024 Qazi Faez Isa CJ.
Islamic Republic of Pakistan ('the Constitution') which only permits direct filing provided 'a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II [of the Constitution] is involved.' The Petition was filed by a former Prime Minister of Pakistan, Mr. Imran Ahmed Khan Niazi ('Mr. Niazi'), who challenged the amendments which were made to the National Accountability Ordinance, 1999 ('the Ordinance').
2. The Ordinance was enacted thirty-four days after Army Chief General Pervez Musharraf forcibly assumed power after he was sacked. He overthrew the constitutional-democratic order, and bestowed on himself legislative and executive powers, and removed the judges of the superior courts who did not endorse his take over. The preamble of the Ordinance provided the reason for its enactment, which was, 'to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices.' However, those politicians who came over to General Musharraf and/or joined the political party sponsored by him were exonerated. The manner in which the provisions of the Ordinance were applied, or were disregarded, lead to the widely held perception that the Ordinance primarily was an instrument of political victimization and political engineering. In the new dispensation of General Musharraf many coveted the baubles, trinkets and pomp, which he offered, and by siding with his dictatorial rule became complicit in the wrecking of the Constitution and the illegal and undemocratic actions that were taken.
3. The following amendments had been made to the Ordinance:
(1) National Accountability Bureau (Amendment) Act, 2022, which were enacted on 22 June 2022;
(2) National Accountability Bureau (2nd Amendment) Act, 2022, which was enacted on 12 August 2022; and
(3) National Accountability Bureau (Amendment) Act, 2023, which was enacted on 29 May 2023.
The above amendments are hereinafter respectively referred to as 'the 1st Amendment', 'the 2nd Amendment' and 'the 3rd Amendment' and collectively as 'the Amendments'. The 3rd Amendment was in the field when the Petition was heard (six hearings took place after its promulgation) yet the impugned judgment did not attend to it and created an anomalous situation.
The 3rd Amendment was in respect of matters mentioned in sections 231 and 350 of the Code of Criminal Procedure, 1898 and in section 36 of the Ordinance, which pertained to trials and proceedings before other Courts.
4. The Petition assailing the amendments made to the Ordinance was filed by Mr. Niazi through a Senior Advocate of this Court, the learned Khawaja Haris Ahmed. The Registrar questioned the maintainability of the Petition, however, Mr. Niazi through his counsel filed a chamber appeal challenging the order of the Registrar (Civil Miscellaneous Appeal No. 34/2022), which was heard by Ijaz ul Ahsan, J, and was allowed on 6 July 2022; it was observed that the Petition was maintainable. The Petition was then listed for hearing in Court on 19 July 2022 when notices were issued and after several hearings the Petition was decided on 15 September 2023. Intra Court Appeals No. 2, 3 and 4/2023 were filed against this judgment. When notices were issued to respondents, Mr. Niazi chose not to engage a counsel and conveyed that he wanted to argue the matter himself. Despite the fact that Mr. Niazi was represented by thirteen lawyers when the Petition was heard his request was conceded to vide order dated 30 May 2024. We had already appointed on 14 May 2024 learned Khawaja Haris Ahmed to represent Mr. Niazi and had directed the State to pay his professional fee, however, the learned Senior Advocate graciously without claiming any amount from the State agreed to represent Mr. Niazi.
5. During the pendency of the Petition the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') was enacted, on 21 April 2023. The Act states that all cases requiring the interpretation of the Constitution must be heard by not less than five Judges of the Supreme Court. The Petition had stated that the amendments made to the Ordinance offended the Constitution, therefore, to ascertain this the interpretation of the Constitution was required. Syed Mansoor Ali Shah, J, one of the three Hon'ble Judges hearing the Petition opined (on 18 August 2023) that the Petition should 'be taken up for further hearing only after the constitutionality of the Act [which was under challenge in this Court] is finally decided by this Court.'
6. There were 55 hearings of the Petition. The Petition was finally decided on 15 September 2023 by a majority of two to one, Umar Ata Bandial, CJ, and Ijaz ul Ahsan, J, allowed the petition and Syed Mansoor Ali Shah, J, dismissed it. These appeals assail the majority decision ('the impugned judgment'), which held as under: 'i. The titled Constitution Petition is maintainable on account of violating Articles 9 (security of person), 14 (inviolability of dignity of man), 24 (protection of property rights) and 25 (equality of citizens) of the Constitution and for affecting the public at large because unlawful diversion of State resources from public development projects to private use leads to poverty, declining quality of life and injustice. ii. Section 3 of the Second Amendment pertaining to Section 5(o) of the NAB Ordinance that sets the minimum pecuniary threshold of the NAB at Rs.500 million and Section 2 of the 2022 Amendments pertaining to Section 4 of the NAB Ordinance which limits the application of the NAB Ordinance by creating exceptions for holders of public office are declared void ab initio insofar as these concern the references filed against elected holders of public office and references filed against persons in the service of Pakistan for the offences noted in Section 9(a)(vi)-(xii) of the NAB Ordinance; iii. Section 3 of the Second Amendment and Section 2 of the 2022 Amendments pertaining to Sections 5(o) and 4 of the NAB Ordinance are declared to be valid for references filed against persons in the Service of Pakistan for the offences listed in Section 9(a)(i)-(v) of the NAB Ordinance; iv. The phrase 'through corrupt and dishonest means' inserted in Section 9(a)(v) of the NAB Ordinance along with its Explanation II is struck down from the date of commencement of the First Amendment for references filed against elected holders of public office. To this extent Section 8 of the First Amendment is declared void; v. Section 9(a)(v) of the NAB Ordinance, as amended by Section 8 of the First Amendment, shall be retained for references filed against persons in the service of Pakistan; vi. Section 14 and Section 21(g) of the NAB Ordinance are restored from the date of commencement of the First Amendment. Consequently, Sections 10 and 14 of the First Amendment are declared void; and vii. The second proviso to Section 25(b) of the NAB Ordinance is declared to be invalid from the date of commencement of the Second Amendment. Therefore, Section 14 of the Second Amendment is void to this extent.'
And, as a consequence of the above the impugned judgment held, that: '49. On account of our above findings, all orders passed by the NAB and/or the Accountability Courts placing reliance on the above Sections are declared null and void and of no legal effect.
Therefore, all inquiries, investigations and references which have been disposed of on the basis of the struck down Sections are restored to their positions prior to the enactment of the 2022 Amendments and shall be deemed to be pending before the relevant fora. The NAB and all Accountability Courts are directed to proceed with the restored proceedings in accordance with law. The NAB and/or all other fora shall forthwith return the record of all such matters to the relevant fora and in any event not later than seven days from today which shall be proceeded with in accordance with law from the same stage these were at when the same were disposed of/closed/returned.'
7. Syed Mansoor Ali Shah, J, who was in the minority, dismissed the petition, because: '...the majority judgment through a long winding conjectural path of far-fetched "in turn" effects has tried hard to "ultimately" reach an apprehended violation of the fundamental rights. The majority judgment has also fallen short to appreciate that what Parliament has done, Parliament can undo; the legislative power of the Parliament is never exhausted. If the Parliament can enact the NAB law, it can also repeal the entire law or amend the same.'
The detailed reasons for the above short order were issued on 30 October 2023, which commenced by stating that: 'Courts must rise above the 'hooting throng' and keep their eyes set on the future of democracy, undeterred by the changing politics of today. Courts unlike political parties don't have to win popular support. Courts are to decide according to the Constitution and the law even if the public sentiment is against them.'
Syed Mansoor Ali Shah, J, stated that, 'only if such a legislation is in conflict and in violation of the fundamental rights or the express provisions of the Constitution, can the courts interfere and overturn such a legislation.'
8. The Act, save its section 4(2) which provided for retrospective right of appeal of cases decided under Article 184(3) of the Constitution was held by the Full Court to be in accordance with the Constitution. The Act provided a mechanism for the constitution of Supreme Court Benches in its section 2, which may be considered to be a procedural matter, however, its section 4 stipulated that, 'where interpretation of the constitutional provisions is involved' a Bench of this Court comprising of 'not less than five Judges of the Supreme Court' must hear the case. The Petition, however, was heard and decided by a three-member Bench of this Court, which was contrary to what the Act mandated, which required cases such as the Petition, to be heard and decided by not less than five Judges.
9. The learned Additional Prosecutor General representing the National Accountability Bureau ('NAB') stated that NAB supports the appeals. Notices were also issued to the Advocates-General of the Provinces and the Islamabad Capital Territory and, except for the Advocate-General of the Khyber Pakhtunkhwa, all supported the appeals. The Attorney-General for Pakistan also supported the appeals.
10. Learned Senior Advocate Mr. Makhdoom Ali Khan, representing the appellant in ICA No. 2 of 2023, formulated the contentions, which were adopted by the learned Senior Advocate Mr. Farooq H.
Naek, representing the appellant in ICA No. 3 of 2023. The learned Attorney-General for Pakistan, the learned Advocates-General of the three provinces and of the Islamabad Capital Territory also supported his submissions. The learned counsel supporting the appeals submitted, as under: i) The impugned judgment is a nullity in law as it was passed by a Bench of this Court which was not constituted in accordance with sections 2, 3 and 4 of the Supreme Court (Practice and Procedure) Act, 2023 and resultantly it was coram non judice. The Act, enacted on 21 April 2023, was challenged but the challenge thereto was rejected by Supreme Court comprising all of its Judges in the reported decision in the case of Raja Amer Khan v Federation of Pakistan (PLJ 2024 Supreme Court 114). The Act was specifically brought to the attention of the Judges hearing the Petition, and also by filing an application (CMA No. 7066 of 2023), but the majority by order dated 29 August 2023 rejected the objections, however, they did not dispose of the said application. ii) The Petition filed by Mr. Niazi under Article 184(3) of the Constitution was not maintainable because of the eleven-member Bench decision of this Court in the case of Benazir Bhutto v Federation of Pakistan (PLD 1988 Supreme Court 416), which had held that when the same matter is pending before a High Court then the Supreme Court should desist from hearing it. And, since a challenge to the Amendments was made in Writ Petition No. 2557 of 2022 filed in the Islamabad High Court by Mr. Shoaib Shaheen the then President of the Islamabad High Court Bar Association, therefore, the Petition should not have been heard. It was submitted that Mr. Shoaib Shaheen and the petitioner's counsel in the writ petition before the High Court, namely, Senior Advocate Mr. Hamid Khan, belonged to Mr. Niazi's political party. Therefore, they should not be permitted to agitate the same matter before two Courts simultaneously. It was further submitted that this Court should have awaited the decision of the High Court, whereafter, if anyone was aggrieved by the decision of the High Court such party could have challenged it before the Supreme Court under Article 185 of the Constitution. iii) The amendments made to the Ordinance through the 1st Amendment and the 2nd Amendment were struck down despite the fact that many of them were borrowed from the ordinances which had been enacted by the Government of which Mr. Niazi himself was the Prime Minister, as under:
(a) Ordinance No. XXI of 2019 ('First Amendment Ordinance'),
(b) Ordinance No. XXVII of 2019 ('Second Amendment Ordinance'),
(c) Ordinance No. V of 2021 ('Third Amendment Ordinance'),
(d) Ordinance No. XXIII of 2021 ('Fourth Amendment Ordinance'), and
(e) Ordinance No. XXVI of 2021 ('Fifth Amendment Ordinance') (collectively referred to as 'the Amending Ordinances'). iv) Mr. Niazi did not approach this Court in a bona fide manner and his antecedents also prevented him from challenging the Amendments, many provisions whereof were the same as those in the Amending Ordinances, promulgated by the President of Pakistan on his advice. It was submitted that the President's power to enact an ordinance is circumscribed - 'Circumstances exist which render it necessary to take immediate action' (as stipulated in Article 89(1) of the Constitution) whereas legislation enacted by the National Assembly and Senate does not require the existence of circumstances which render it necessary to take immediate action. Mr. Niazi also did not have the requisite locus standi since the Amendments neither adversely nor personally affected him.
Hearing the Petition was an academic exercise as there was no actual controversy before the Court, and neither any right of Mr. Niazi nor that of any other person was adversely affected by the Amendments which were not ex-facie discriminatory. v) In the constitutional scheme it is for the Parliament to legislate and for the courts to adjudicate, and courts make every effort to uphold legislation, unless it is clearly unconstitutional. Moreover, if there are two views possible the one in favour of upholding the legislation is always preferred. vi) The Amendments had sought to reduce the rigors of the Ordinance, therefore, the same could not be stated to be violative of citizens' Fundamental Rights, which the Supreme Court may enforce under Article 184(3) of the Constitution. vii) The impugned judgment misapplied the principle of retrospectivity in Article 12 of the Constitution which prohibits retrospective punishment but it does not prohibit nor restrict the grant of retrospective relief or benefit. viii) Certain provisions of the Amendments had implemented the decisions/recommendations of the superior courts, which had not been challenged, yet those have been negated by the impugned judgment. ix) The impugned judgment rewrites the Constitution, and also a number of statutes, by creating an artificial distinction between civil servants and public servants and elected holders of public office and persons in the service of Pakistan, which the minority opinion had also noted. x) The impugned judgment accepted the limit of one hundred million rupees prescribed in the Standard Operating Procedures of NAB ('SOPs') in respect of cases which NAB can investigate and send for trial but struck down legislation which had increased the limit to five hundred million rupees. SOPs, which are an administrative measure, cannot be made to prevail over legislation enacted by Parliament. xi) The Amendments did not decriminalize any offence. The Amendments only changed what may be investigated by NAB itself and the forum of the criminal trial. No person can be adversely affected with regard to such procedural changes. xii) If the legislature could enact the Ordinance it was also empowered to repeal it. In the present case, the Ordinance had not been repealed but only the Amendments had been made to the Ordinance, yet the same were struck down.
11. While the Petition was pending adjudication the Act was enacted almost five months before the Petition was decided. The attention of the learned Judges hearing the Petition was specifically drawn to the Act, which required that the Petition must be heard by 'not less than five Judges of the Supreme Court', but the objection was rejected through order dated 29 August 2023 passed by Umar Ata Bandial, CJ, and Ijaz ul Ahsan, J. However, the application (CMA No.7066/2023) submitted in this regard was left unattended. Syed Mansoor Ali Shah, J, was correct in stating that after the promulgation of the Act the Petition could not be heard by a three-member Bench. Had Syed Mansoor Ali Shah, J, disassociated himself from the Bench the Petition could then not have been heard by the remaining two Judges, nor could it have been decided by them.
12. The learned Judges who passed the impugned judgment (Umar Ata Bandial, CJ, and Ijaz ul Ahsan, J) were also part of the Bench which had initially heard Constitution Petitions No. 6 to 8 of 2023, through which the Bill which later became the Act was challenged, and they had suspended its operation. Thereafter, the said petitions were not fixed for hearing, which is contrary to the practice of this Court because once the hearing of a case has commenced it is not discontinued, and particularly when there is no reason to do so. However, these petitions were not listed for hearing for the next 100 days. The petitions which had challenged the Act were next fixed for hearing on Monday, 18 September 2023, after the present incumbent assumed the office of the Chief Justice of Pakistan.
13. Except its section 4(2) the challenge to the Act was repelled by the Full Court through the judgment reported as Raja Amer Khan v Federation of Pakistan (PLJ 2024 Supreme Court 114).
The Petition, challenging the Amendments made to the Ordinance, was not heard and decided in accordance with the Act, which required that it be heard and decided by a Bench of not less than five Judges of the Supreme Court. Needless to say, if the provisions of the Act had been followed the Petition may have been decided differently. Abiding and following the law would also have saved considerable time of this Court and public resources as well.
14. The impugned judgment is challenged in these appeals, filed under section 5 of the Act which provides for an appeal in respect of an order passed in exercise of the original jurisdiction of this Court under Article 184(3) of the Constitution, before a larger Bench of the Supreme Court. These appeals could justifiably be allowed on the ground that since the Petition was not heard and decided as required by the Act by a five-member Bench the impugned judgment is coram non judice and a nullity in law. However, in deference to the learned Judges of the three-member Bench who had spent considerable time in hearing the Petition (55 dates of hearing) it may not be appropriate to set aside the impugned judgment on this ground alone.
15. We, accordingly, proceed to consider and determine whether the scope the Petition and the challenge made to the Amendments came within the constitutional jurisdiction of this Court which is directly exercised under Article 184(3) of the Constitution. A petition may be filed directly in the Supreme Court provided it raises (a) 'a question of public importance' and is (b) 'with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II' of the Constitution.
16. The majority decision states that the Petition was maintainable because it violated the following Fundamental Rights: 'Articles 9 (security of person), 14 (inviolability of dignity of man), 24 (protection of property rights) and 25 (equality of citizens).' However, there is no discussion in the impugned judgment stating how the Amendments made to the Ordinance contravened these Fundamental Rights. The impugned judgment states, in paragraph 18, that the Amendments are 'ex-facie violating Articles 9, 14, 23 and 24 of the Constitution'; in paragraph 31, that 'Such blanket immunity offends Articles 9, 14, 23 and 24 of the Constitution' and that 'It also offends the equal treatment command of Article 25 of the Constitution'; and, in paragraph 35, that, 'affects the same Fundamental Rights i.e., Articles 9, 14, 23 24 [sic.] and raises the same problems in terms of accountability of elected holders of public office.' However, these statements made in the impugned judgment are not explained nor are the Amendments analyzed in relation to the stated Fundamental Rights to ascertain and determine whether they were in conflict with them.
17. It does not suffice that the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution is exercised by simply mentioning that one or more Fundamental Rights are contravened. This approach does not conform with the constitutional requirement. The Constitution only permits the Supreme Court to exercise its jurisdiction provided the stated two pre-requisites (mentioned above in paragraph 15) exist. The stated conditions prescribed by the Constitution can not be ignored nor redundancy attributed to them. There must be a clear nexus between the legislation under challenge with the enforcement of any of the Fundamental Rights and it must be established that the same are violated or that the enforcement of such Fundamental Rights is undermined. Regretfully, the impugned judgment did not do so. We are also not persuaded by Mr. Niazi and learned Senior Advocate Khawaja Haris Ahmed that the Amendments violated the Constitution. Jurisdiction, with respect, was assumed by the learned Judges in disregard of the mandate of Article 184(3) of the Constitution, and having done so the provisions of the Amendments were minutely examined, and in doing so a cardinal feature of the Constitution was also disregarded.
18. The Constitution distributes functions amongst the different constitutional bodies that are set up thereunder, including the legislature, the primary function of which is to make laws. Till a law or any provision thereof is successfully challenged and struck down by a High Court, the Federal Shariat Court or by the Supreme Court it must be construed to be validly enacted, and it must be abided by. Legislation can also not be treated at par with Executive action/inaction. Unlike suspending and/or striking down the action of the Executive, or directing it to act, under Articles 199 or 184(3) of the Constitution, legislation enacted by Parliament or a Provincial Assembly, must be treated with respect and obeyed. And, if, and only if, legislation contravenes the Constitution, and it be so declared by a superior court having jurisdiction, the same continues to subsist. Unfortunately, we note that this fundamental principle was twice lost sight of, first, in disregarding the Act and then in substituting what the majority of the learned Judges considered in their personal opinion to be better than what was expressed by the elected representatives of the people and which was enacted by Parliament through the Amendments. Merely because this Court considers that it could have drafted or formulated a law better than Parliament does not empower it to strike down or disregard legislation enacted by Parliament.
19. The impugned judgment did not test the Amendments on the touchstone of the Constitution, it instead proceeded to consider the Amendments by applying their lordships' own criteria and yardstick, which, with respect, was not permissible in terms of the Constitution. Needless to state, Judges must abide, as their oath of office prescribes, by 'the Constitution of the Islamic Republic of Pakistan and the law.' Unless the law is clearly found to offend the Constitution, and it is first so declared, it cannot be disregarded or struck down. The Petition had challenged the Amendments, therefore, it had to be established that the two pre-requisites of Article 184(3) of the Constitution (mentioned above) were met.
20. The impugned judgment did not demonstrate how the Amendments violated or infringed any of the Fundamental Rights which were cursorily mentioned therein. The impugned judgment had referred to Article 9 (security of person) but did not even briefly explain how anyone's security was undermined or affected by the Amendments. Reference was also made to Article 14 (inviolability of dignity of man) but there was no explanation forthcoming on how any of the Amendments had affected anyone's dignity. The next reference in the impugned judgment was to Article 25 (equality of citizens) but once again no explanation was offered nor was it elaborated how citizens were being subjected to different laws or were being treated differently. Passing reference was also made to Article 23 (provision as to property) and to Article 24 (protection of property) but neither of these Articles were expounded or elucidated with regard to the Amendments, let alone that the Amendments, or any part thereof, offended either of them. Without stating, demonstrating and then establishing that the Amendments, or any of its provisions did not conform to the said Fundamental Rights, the same could not be struck down.
21. In view of the aforesaid the Petition should not have been allowed; it merited dismissal. Having arrived at this conclusion we need not consider the remaining submissions of the appellant's counsel and those who supported them, including that some of the Amendments gave effect to the decisions of the superior Court, that Mr. Niazi himself was the architect of many of the provisions which were later incorporated into the Amendments and that Mr. Niazi did not act bona fide.
22. The Supreme Court whenever possible must try to uphold legislation rather than rush to strike it down, and if there be two or more interpretations of any legislation to adopt the interpretation which upholds it. This does not mean that when the law, or any provision thereof, is unconstitutional it should not be so declared and struck down. However, the Petition and the impugned judgment failed to establish that the Amendments were unconstitutional, nor have we been so persuaded in this regard.
23. The Constitution has set out the respective roles of the Legislature and that of the Judiciary and every care should be taken to ensure that neither encroaches onto the domain of the other.
Constitutional institutions better serve the people when they respect each other and perform the functions respectively granted to them by the Constitution. The Chief Justice and the Judges of the Supreme Court are not the gatekeepers of Parliament.
24. Therefore, for the aforesaid reasons, we allow these appeals by setting aside the impugned judgment, and dismiss the Petition. However, there is no order as to costs.
I agree with the conclusion but I am unable to concur with the reasons. So, I will give my own reasoning through a separate note.
Announced in open Court at Islamabad on 6 September 2024.
Approved for reporting I have carefully read the opinion eloquently authored by the Chief Justice and I concur that the impugned majority judgment is liable to be set aside. With profound respect, in my opinion the appeal filed by the Federation was not competent under section 5 of the Supreme Court (Practice and Procedure) Act, 2023 and the same is hereby dismissed. However, the appeals preferred by the private appellants were maintainable and the same are allowed. Consequently, the impugned judgment is set aside. Moreover, the opinion recorded in the minority judgment is affirmed to the effect that members of the Armed Forces and Judges of the constitutional courts are not immune from accountability under the National Accountability Ordinance, 1999. The detailed reasons shall be recorded later.
JUDGMENT Dated: 23-10-2024 Syed Hasan Azhar Rizvi, J.- I have carefully read the majority judgment authored by Justice Qazi Faez Isa, the Hon'ble Chief Justice of Pakistan. Although I agree with the conclusion he reached, I regretfully find myself unable to endorse the reasoning. The majority judgment did not provide sufficient justification for the issues at hand. More importantly, unreasonable remarks were made about the Hon'ble former judges of this Court, whose judgment we are reviewing on appeal. In my humble opinion, judicial comity requires that, even when we disagree with the decisions of other judges, we do so with respect and constructiveness. Criticism should focus on legal principles rather than disparaging those who authored the original decision. While I concur with the ultimate conclusion, I feel compelled to offer my own reasoning in a manner that aligns with the respect and decorum expected within our judiciary hierarchy.
2. To avoid repetition, I shall rely on the arguments advanced by the legal representatives and counsel as articulated in the majority judgment, except where specific points are essential for my analysis.
Scope and Extent of Jurisdiction in I.C.A.
3. Before delving into the merits of the case, I would first like to examine the scope and extent of this Court's jurisdiction when adjudicating the first Intra-Court Appeal (I.C.A.) under the newly enacted Supreme Court (Practice and Procedure) Act, 2023 ('SCPPA'). Generally, an I.C.A. is a legal mechanism that allows for an appeal within the same court, to a larger or more senior bench, rather than to a higher court. The purpose of the I.C.A. is to provide a remedy for reconsideration when a party is dissatisfied with the decision of a single judge or a smaller bench, without requiring escalation to another tier of the judicial hierarchy. This ensures that errors or inconsistencies in legal judgments are reviewed within the same court, promoting fairness and thoroughness in judicial decision-making. Historically, a similar jurisdiction was exercised by the High Courts under the name Letters Patent Appeal ('L.P.A.'), which was discontinued after the promulgation of the Law Reforms Ordinance, 1972. However, Section 3 of this Ordinance still provides for an I.C.A. before a bench of two or more judges of the High Court under certain specified conditions. Similarly, the .
Courts and the Supreme Court. Its section 19(i) provides that 'in the case of an order passed by a Single Judge of a High Court an intra-Court appeal shall lie to a bench of two or more Judges' of that Court. And, section 19(iii) states that 'in the case of an original order passed by a Single Judge or a bench of two Judges of the Supreme Court an intra-Court appeal shall lie to a bench of three Judges and in case the original order was passed by a bench of three or more Judges an intra- Court appeal shall lie to a Bench of five or more Judges' of that Court.
4. As the I.C.A., unlike an ordinary appeal that lies before a higher forum in the judicial hierarchy, is heard within the same court, the question of its scope, extent, and power and authority of the bench hearing an I.C.A. becomes highly important, particularly, after reading the majority judgment in this case authored by the Hon'ble Chief Justice. No provision of law has been found regarding the above aspect of the I.C.A., nor has any authoritative judgment been delivered by this Court in the past to clarify this matter. In Shahid Orakzai v. Pakistan Muslim League (2000 SCMR 1969), this Court, in the context of the Contempt of Court Act, 1976, merely observed that the scope of an Intra-Court Appeal would be examined in another appropriate case. Recently, however, Justice Syed Mansoor Ali Shah, in his concurring note in Raja Amer Khan and others v. Federation of Pakistan through Secretary, Law and Justice Division, Ministry of Law and Justice, Islamabad (PLJ 2024 SC 114), endeavored to determine the nature of the Intra-Court Appeal whether it is part of procedural law or substantive law--for the purpose of assessing the validity of the newly enacted SCPPA. His lordship, while referring to two judgments from the Division Benches of the Lahore High Court, Muzaffar Din v. Allah Wasai (PLD 1953 Lah. 284) and Abdul Haq v. Saif-Ur- Rehman (PLD 1968 Lah. 478), concluded that 'an intra-court appeal is not an appeal in the strict sense but an internal arrangement of the court for reviewing its own decision. The purpose was that they might further assist on this point and bring in notice of the Court any contrary view, if any, so that after examining the reasoning of divergent views, the Court could reach a better judgment.' I fully agree with the above observation regarding the nature of the Intra-Court Appeal and had already concurred with this observation in Raja Amer's case, as I was one of the members of that bench.
5. I have noticed that the Superior Courts of India have extensively expounded upon the concept of the I.C.A., formerly known as the Letters Patent Appeal. For instance, the Supreme Court of India, in Asha Devi v. Dukhi Sao and Others (AIR 1974 SC 2048), delineated the limitations on the powers of a bench hearing an L.P.A. and concluded that the single judge, against whose decision the appeal was filed, cannot be considered a subordinate court to the High Court. The relevant paragraph is reproduced below for ease of reference: 'There is no dispute that an appeal lies to a Division Bench of the High Court from the judgment of a Single Judge of that Court in appeal from a judgment and decree of a court subject to the superintendence of the High Court. The only question is whether the power of a Division Bench hearing a Letters Patent appeal under Clause 10 of the Letters Patent of Patna High Court or under the analogous provisions in the Letters Patent of other High Courts is limited only to a question of law under Section 100 of the CPC or has it the same power which the Single Judge has as a first Appellate Court in respect of both questions of fact and of law. The limitations on the power of the Court imposed by Sections 100 and 101 of the CPC cannot be made applicable to an Appellate Court hearing a Letters Patent appeal from the judgment of a Single Judge of that High Court in a first appeal from the judgment and decree of the court subordinate to the High Court, for the simple reason that a Single Judge to the High Court is not a Court subordinate, to the High Court.'
6. In Baddula Lakshmaiah and Others v. Sri Anjaneya Swami Temple and Others ((1996) 3 SCC 52), the Supreme Court of India defined the nature and scope of the powers of a Letters Patent Bench hearing an appeal against the decision of a Single Judge and held as follows:"
'2. Mr. Ram Kumar, learned Counsel for the appellants, inter alia contends that the Letter Patent Bench of the High Court could not have upset a finding of fact recorded by a learned Single Judge on fresh reconciliation of the two documents, arriving at different results than those arrived at earlier by the two courts afore-mentioned. Though the argument sounds attractive, it does not bear scrutiny. Against the orders of the trial court, first appeal lay before the High court, both on facts as well as law. It is the internal working of the High Court which splits it into different 'Benches' and yet the court remains one. A letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate Court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. So understood, the appellate power under the Letters patent is quite distinct, in contrast to what is ordinarily understood in procedural language. That apart the construction of the afore-mentioned two documents involved, in the very nature of their import, a mixed question of law and fact, well within the powers of the Letters Patent Bench to decide. The Bench was not powerless in that regard.'
Emphasis Supplied.
7. Again, the Supreme Court of India, in the case of B. Venkatamuni v. C.J. Ayodhya Ram Singh and Others (AIR 2007 SC 311), explained the scope and extent of a bench hearing an L.P.A. and observed as follows: '9. In an intra-court appeal, the Division Bench undoubtedly may be entitled to re-apprise both questions of fact and law, but the following dicta of this Court in Umabhai and Anr. v. Nilkanth Dhondiba Chavan (Dead) By Lrs. and Anr. MANU/SC/0285/2005 : (2005)6SCC243 , could not have been ignored by it, whereupon the learned Counsel for Respondents relied: It may be, as has been held in Asha Devi v. Dukhi Sao MANU/SC/0019/1974 : [1975]1SCR611 that the power of the appellate court in intra-court appeal is not exactly the same as contained in Section 100 of the Code of Civil Procedure but it is also well known that entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the learned Single Judge. Even as noticed hereinbefore, a court of first appeal which is the final court of appeal on fact may have to exercise some amount of restraint...'
8. In Anindita Mohanty Vs. The Senior Regional Manager, Hindustan Petroleum Co. Ltd. and Ors.
(AIR 2020 Ori 135), the Orissa High Court, while relying upon the Baddula Lakshmaiah's case supra, observed as under: '11. We have carefully considered the submissions advanced by the learned Counsel for the parties and perused the documents available on record. Let us first examine the power of the Division Bench while entertaining a Letters Patent appeal against the judgment/order of the Single Judge.
This writ appeal has been nomenclatured as an application under Article 4 of the Orissa High Court Order, 1948 read with clause 10 of the Letters Patent Act, 1992. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948.
Letters Patent Appeal is an intra Court appeal where under the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as vested in the Single Bench. (Ref: (1996) 3 Supreme Court Cases 52, Baddula Lakshmaiah Vrs. Shri Anjaneya Swami Temple). The Division Bench in Letters Patent Appeal should not disturb the finding of fact arrived at by the learned Single Judge of the Court unless it is shown to be based on no evidence, perverse, palpably unreasonable or inconsistent with any particular position in law.
This scope of interference is within a narrow compass. Appellate jurisdiction under Letters Patent is really a corrective jurisdiction and it is used rarely only to correct errors, if any made.'
Emphasis Supplied.
9. In light of the above, it may be concluded that an I.C.A. is not an appeal in the traditional sense, but rather an internal mechanism of the court to review its own decisions. Accordingly, the bench hearing the appeal functions as a Court of Correction, rectifying its own orders while exercising the same jurisdiction as the original bench against which the appeal was filed. In any case, the I.C.A. is not an appeal against the decision of a subordinate court. Moreover, the appellate bench should not disturb the factual findings of the original bench unless those findings are unsupported by evidence, perverse, palpably unreasonable, or inconsistent with established legal principles or earlier rulings.
Factual Background
10. Mr. Imran Ahmad Khan Niazi ('the respondent') filed a petition under Article 184(3) of the Constitution challenging the validity of the National Accountability (Amendment) Act, 2022 ('First Amendment') and the National Accountability (Second Amendment) Act, 2022 ('Second Amendment'), collectively referred to as the '2022 Amendments' on the touchstone of the Fundamental rights as enshrined in Chapter 1 of the Constitution. The petition was fixed before a three-member bench ('Original Bench') of this Court. During the hearing, the Original Bench, in paragraph 24 of the impugned majority judgment, limited the scope of the case by observing that although the respondent sought the nullification of nearly all the 2022 amendments, it was not convinced that every section of those amendments violated the Fundamental Rights of the people of Pakistan. The Original Bench concluded that prima facie judicial scrutiny was required only for sections 2, 8, 10, and 14 of the First Amendment and sections 2, 3, and 14 of the Second Amendment.
As for the remaining provisions of the 2022 amendments, the Original Bench held that they may be considered later in an appropriate case. The relevant para of the impugned majority judgment specifying the effects of the 2022 Amendments is reproduced hereunder for ease of reference: '24. In his Constitution Petition the petitioner has sought the nullification of virtually the entire 2022 Amendments. However, on a careful examination of these we are not convinced that the Fundamental Rights of the people of Pakistan are violated by each and every section of the 2022 Amendments. Our considered view at the outset about the provisions of the 2022 Amendments is that prima facie judicial scrutiny of only Sections 2, 8, 10 and 14 of the First Amendment and Sections 2, 3 and 14 of the Second Amendment is required. These provisions have brought about the following modifications in the NAB Ordinance: i. Section 3 of the Second Amendment has changed the definition of 'offence' in Section 5(o) of the NAB Ordinance by inserting a minimum pecuniary jurisdiction of Rs. 500 million below which value the NAB cannot take cognizance of the offence of corruption and corrupt practices; ii. Section 2 of the First Amendment by inserting subsections (a)-(f) into Section 4 of the NAB Ordinance and Section 2 of the Second Amendment by adding subsection (g) in Section 4 of the NAB Ordinance has excluded certain holders of public office from application of the NAB Ordinance and thereby limited its effect; iii. Section 8 of the First Amendment has inserted new ingredients in the offence under Section 9
(a) (v) of the NAB Ordinance and added explanations thereto. Section 9(a)(v) criminalizes the act of holding assets beyond means; iv. Section 10 of the First Amendment has deleted Section 14 of the NAB Ordinance which provides evidentiary presumptions that may be drawn against the accused; v. Section 14 of the First Amendment has deleted Section 21(g) of the NAB Ordinance which permitted foreign evidence to be admissible in legal proceedings under the mutual legal assistance regime; and vi. Section 14 of the Second Amendment has added a second proviso to Section 25(b) of the NAB Ordinance whereby an accused who enters into a plea bargain duly approved by the Accountability Court under Section 25(b) can renege from the same if he has not paid the full amount of the bargain settlement as approved by the Accountability Court.
The remaining provisions of the 2022 Amendments may be considered later in an appropriate case.'
Emphasis Supplied.
11. The above-quoted para clearly suggests that the constitutionality of only sections 2, 8, 10, and 14 of the First Amendment and Sections 2, 3, and 14 of the Second Amendment was examined in the impugned judgment culminating in the following conclusion: '48. On the basis of the above discussion the Court holds: i. The titled Constitution Petition is maintainable on account of violating Articles 9 (security of person), 14 (inviolability of dignity of man), 24 (protection of property rights) and 25 (equality of citizens) of the Constitution and for affecting the public at large because unlawful diversion of State resources from public development projects to private use leads to poverty, declining quality of life and injustice. ii. Section 3 of the Second Amendment pertaining to Section 5(o) of the NAB Ordinance that sets the minimum pecuniary threshold of the NAB at Rs.500 million and Section 2 of the 2022 Amendments pertaining to Section 4 of the NAB Ordinance which limits the application of the NAB Ordinance by creating exceptions for holders of public office are declared void ab initio insofar as these concern the references filed against elected holders of public office and references filed against persons in the service of Pakistan for the offences noted in Section 9(a)(vi) (xii) of the NAB Ordinance; iii. Section 3 of the Second Amendment and Section 2 of the 2022 Amendments pertaining to Sections 5(o) and 4 of the NAB Ordinance are declared to be valid for references filed against persons in the Service of Pakistan for the offences listed in Section 9(a)(i)-(v) of the NAB Ordinance; iv. The phrase 'through corrupt and dishonest means' inserted in Section 9 (a) (v) of the NAB Ordinance along with its Explanation II is struck down from the date of commencement of the First Amendment for references filed against elected holders of public office. To this extent Section 8 of the First Amendment is declared void; v. Section 9(a)(v) of the NAB Ordinance, as amended by Section 8 of the First Amendment, shall be retained for references filed against persons in the service of Pakistan; vi. Section 14 and Section 21(g) of the NAB Ordinance are restored from the date of commencement of the First Amendment. Consequently, Sections 10 and 14 of the First Amendment are declared void; and vii. The second proviso to Section 25(b) of the NAB Ordinance is declared to be invalid from the date of commencement of the Second Amendment. Therefore, Section 14 of the Second Amendment is void to this extent.'
Regarding the constitutionality of the National Accountability (Amendment) Act, 2023, it has been noted that it was introduced, during the pendency of the main petition, to give effect to the 2022 Amendments, addressing complications that arose concerning the transfer of cases from Accountability Courts to other courts, tribunals, and forums. Since this amendment is procedural in nature and relates to the implementation of the 2022 Amendments, the Original Bench hearing the main petition did not address it. Furthermore, the petitioner did not challenge it in his amended petition. Therefore, this amendment is not under consideration in this note.
12. I have carefully examined the 2022 Amendments as well as the impugned judgment and found that the confusion primarily arises from the understanding of section 3 of the Second Amendment, which has modified the definition of the term 'offence' in Section 5(n) of the National Accountability Ordinance, 1999 (N.A.O.). Under this amendment, offences of corruption and corrupt practices involving amounts less than Rs.500 million have been excluded from the jurisdiction of the National Accountability Bureau (NAB). Additionally, section 2 of the First Amendment, by inserting subsections (a)-(f) into section 4(2) of the N.A.O., and section 2 of the Second Amendment, by adding subsection (g) to section 4(2) of the NAO, have excluded certain holders of public office from the application of the N.A.O. and exceptions have been created for the decisions, advice, reports, opinions of and works, functions, projects, schemes undertaken by the holders of public office and public/governmental bodies unless there is evidence of the holder of public office or a person acting on his behalf having received monetary or other material benefits. The majority of the Original Bench seemed most concerned with the cases of the elected holder of public office i.e. members of the Parliament and Provincial Assemblies relating to the offence of corruption and corrupt practices of the value less than five hundred million rupees being beyond the jurisdiction of the NAB under the new 2022 Amendments. For this reason, they posed a question to the counsel for the Federation: 'If the Accountability Court were to send or transfer a reference against a parliamentarian (elected holder of public office) due to lack of jurisdiction, which court would be the competent transferee to adjudicate the reference, and under which law? In a written response, the learned counsel for the Federation referred to the provisions of the Prevention of Corruption Act, 1947 ('P.C.A.'); the Pakistan Penal Code, 1860 ('P.P.C.'); the Income Tax Ordinance, 2001; and the Anti-Money Laundering Act, 2010 for the trial of the offences not within the jurisdiction of NAB.
13. There is no doubt that the three laws mentioned above--the Pakistan Penal Code, 1860 (except Chapter IX--Offences relating to illegal gratification other than legal remuneration in respect of an official act), the Income Tax Ordinance, 2001, and the Anti-Money Laundering Act, 2010--are the general laws of the land and apply to every citizen of Pakistan without any distinction for committing any offences specified therein. They, however, do not directly relate to offences of corruption and corrupt practices by holders of public office. The real confusion arises regarding the application of the P.C.A. and Chapter IX (Offences relating to illegal gratification other than legal remuneration in respect of an official act) of P.P.C., as both laws apply only to public servants as defined under Section 21 of the P.P.C. The majority of the Original Bench was of the view that holders of public office under N.A.O., could be categorized as either persons in the service of Pakistan or the members of Parliament and the Provincial Assemblies ('elected holders of public office'). Having the above-said view, they concluded that the first category falls within the definition of 'public servant' and can, therefore, be prosecuted under the P.C.A. and Chapter IX of the P.P.C. for offences of corruption and corrupt practices involving amounts less than Rs. 500 million not within the jurisdiction of NAB under new 2022 Amendments. However, they erred in holding that elected holders of public office do not qualify as public servants and, as such, are not triable under the above laws for corruption and corrupt practices involving amounts less than Rs. 500 million, if NAB lacks jurisdiction over them. Further observed that once excluded from the jurisdiction of the NAB no other accountability fora can take cognizance of their alleged acts of corruption and corrupt practices as noted above; such blanket immunity offends Articles 9, 14, 23 and 24 of the Constitution because it permits and encourages the squandering of public assets and wealth by elected holders of public office as there is no forum for their accountability; it also offends the equal treatment command of Article 25 of the Constitution as differential treatment is being meted out to persons in the service of Pakistan rather than to elected holders of public office.
14. It is evident that the majority reached the above conclusion on the basis of R.S. Nayak v. A.R.
Antulay (AIR 1984 SC 684) wherein the Supreme Court of India held that members of the Legislative Assembly (equivalent to our elected holders of public office) are not public servants within the meaning of Section 21 of the Indian Penal Code, 1860 and that of the High Court Division of the Supreme Court of Bangladesh in Zakir Hossain Sarkar v. State [70 DLR (2018) 203] wherein it was held that a Member of Parliament is not a public servant because he is neither appointed by the Government nor paid by it and he does not discharge his constitutional duties of law-making in accordance with the rules and regulations made by the Executive. It is of great significance to note that the finding in Zakir Hossain's case supra was rendered by the High Court Division of the Supreme Court of Bangladesh, merely relying on A.R. Antulay's case from the Supreme Court of India. Therefore, the primary question that needs to be addressed is whether the declaration made by the Supreme Court of India regarding the legal status of the members of legislative assemblies, while interpreting the provisions of Section 21 of the I.P.C., aligns with our domestic jurisprudence and law. However, I do not find it necessary to revisit this aspect of the matter, as Justice Syed Mansoor Ali Shah, in his dissenting note in the impugned judgment, has comprehensively examined and highlighted the differences in the wording of section 21 (the part relating to present controversy) of the respective Codes of all three countries. His Lordship, based on the noted differences in the definitions of Section 21 across these jurisdictions and while referring to another five member bench judgment of the Supreme Court of India in Narsimha Rao v. State (AIR 1998 SC 2120), concluded that a member of Parliament fulfills all the conditions to fall within the scope of the definition of 'public servant' as provided in the second limb of the latter part of clause nine of Section 21, P.P.C., and is, therefore, triable under the P.P.C. and the P.C.A. as a 'public servant' for the commission of the offence of corruption and corrupt practices. The relevant portion of the dissenting note is reproduced hereunder for ease of reference: '10.3. The close examination of the Antulay thus reveals that it was decided on the ratio that even though an M.L.A. receives pay and also performs public duties, he does not receive that pay from the Government nor is he remunerated by fees by the Government but rather he is remunerated by fees under the Constitution. Therefore, he does not fall within the definition of "public servant" under clause (12) (a) of Section 21 of the IPC. The deciding factor in that case was the requirement of being in the pay of the Government or being remunerated by fees by the Government. At the cost of repetition but for clarity and emphasis, it is restated that the Indian Supreme Court held: [An M.L.A.] no doubt performs public duties cast on him by the Constitution ... for which he is remunerated by fees under the Constitution and not by the Executive [Government].
It is, therefore, the absence of the word "Government" in the second limb of the latter part of clause ninth of Section 21, P.P.C., that makes the real difference in the meaning and scope of the relevant definition clauses of "public servant" in the penal codes of three countries.'
Emphasis Supplied.
15. Although Narsimha Rao supra has recently been overruled by a seven-member bench of the Supreme Court of India in Sita Soren v. Union of India (AIR 2024 SC 1701), I am nonetheless in full agreement with the conclusion reached by Justice Syed Mansoor Ali Shah, who conducted an independent scrutiny of the relevant clauses of Section 21 of the Codes of Pakistan, India, and Bangladesh relating to the definition of a public servant. His lordship has rightly concluded that a member of Parliament, thus, fulfills all the conditions to fall within the scope of the definition of "public servant" provided in the second limb of the latter part of the ninth clause of Section 21, P.P.C., and is, therefore, triable under the P.P.C. and the P.C.A for the alleged offence of corruption and corrupt practices. The misinterpretation of the status of elected holders public office erroneously led the majority to conclude that the provisions of the 2022 Amendments violate Articles 9, 14, 23, and 24 of the Constitution, as they permit and encourage the mismanagement of public assets and wealth by elected holders of public office without any forum for accountability. Had the majority regarded them as public servants, their conclusion would likely have been different.
16. It is obvious from the 'Statement of Objects and Reasons' of the Second Amendment that it was introduced to exclude private transactions from the scope of the NAB and to limit its jurisdiction to mega scandals. To achieve this, a minimum threshold of Rs. 500 million was provided through Section 3 read with section 1(2) of the Second Amendment with retrospective effect from the commencement of the NAO. However, the majority of the Original Bench held section 3 of the Second Amendment as unconstitutional on account of absolving persons accused of the offence of corruption and corrupt practices involving an amount of Rs. 500 million or less without a judicial verdict while declaring it a legislative judgment. I am very surprised by the majority's next observation that no cogent argument was put forward by the learned counsel for the respondent/Federation as to why Parliament set a threshold of Rs. 500 million and above for NAB to entertain complaints, when the Superior Courts have termed acts of corruption and corrupt practices causing losses of Rs. 100 million as mega scandals. It would be relevant to mention here that the Courts can strike down a law made by Parliament on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Chapter I of the Constitution or any other constitutional provision. There is no third ground. Therefore, an enactment cannot be struck down merely because the court finds it unjustified or non-compliant with its earlier recommendations or directions. Under the law, the function of the Court is not to legislate or to question the wisdom of the Legislature in making a particular law nor it can refuse to enforce it even if the result of it is to nullify its own decisions.
Reference may be made to the case of Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312).
17. Even otherwise, one of the cardinal principles of interpretation is that a law should be interpreted in a way that preserves it rather than destroys it. It has time and again held by this Court that the Courts should lean toward upholding the constitutionality of legislation, and it is therefore incumbent upon them to be extremely reluctant to strike down laws as unconstitutional. This power should be exercised only when absolutely necessary, as the injudicious use of it can result in grave and serious consequences, as has happened in this case. Reference in this regard may be made to the Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854); Mehreen Zaibun Nisa v.
Land Commissioner, Multan and others (PLD 1975 SC 397); Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan (PLD 1997 SC 582); Dr. Tariq Nawaz and another v. Government of Pakistan (2000 SCMR 1956); Mian Asif Islam v. Mian Muhammad Asif and others (PLD 2001 SC 499); Syed Aizad Hussain and others v. Motor Registration Authority and others (PLD 2010 SC 983); Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802). I am of the considered view that the Parliament, being composed of representatives of the people, is supposed to know and be aware of the needs of the people and what is good and bad for them. For this reason, Parliament, in its wisdom, provided the above minimum threshold so that NAB, instead of wasting its time on minor cases, may focus its energies on cases involving corruption or corrupt practices at a higher level. The Court, therefore, cannot pass judgment on their wisdom. Given the above context, I respectfully believe that the majority's observations are legally incorrect and misconceived, as even after the amendment, cases against elected public office holders are to be investigated and tried under the P.C.A. by the respective anticorruption investigating agencies and anti-corruption courts of the Federation and Provinces, as applicable.
18. Under Articles 141 and 142, Parliament is fully competent to make laws regarding criminal law, criminal procedure and evidence for the whole or any part of Pakistan. The courts, in exercising the power of judicial review, can strike down any legislation that violates fundamental rights or is beyond legislative competence; however, the courts cannot direct the legislature to frame or enact a law in a particular manner or based on their recommendations. The legislature has the power to enact laws including the power to retrospectively amend laws and thereby by bona fide remove causes of ineffectiveness or invalidity. When a law is enacted with retrospective effect, it is not considered as an encroachment upon judicial power. However, the legislature cannot, by way of an enactment, declare a decision of the court as erroneous or a nullity, but can amend the statute or the provision so as to make it applicable to the past. The legislature has the power to rectify, through an amendment, a defect in law noticed in the enactment and even highlighted in the decision of the court. This plenary power to bring the statute in conformity with the legislative intent and correct the flaw pointed out by the court, can have a curative and neutralizing effect. When such a correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with bona fide with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. This does not amount to statutory overruling or passing a legislative judgment by the legislature, as observed by the majority. In this manner, the earlier decision of the court becomes non-existent and unenforceable for interpretation of the new legislation. No doubt, the new legislation can be tested and challenged on its own merits and on the question of whether the legislature possesses the competence to legislate on the subject matter in question and there exists no conflict of interest, but not on the ground of non-observance of their recommendations.
19. The provision of Section 9 (Corruption and Corrupt Practices) of the NAO has been entirely replaced by a new provision, while the provision of Section 14 (Presumption Against Accused Accepting Illegal Gratification) has been omitted through Sections 8 and 10 of the First Amendment, respectively. The majority, while examining the validity of these provisions, held that the newly substituted Section 9 of the NAO, to the extent of the phrase 'through corrupt and dishonest means' used in clause 9(a)(v), was ultra vires to the Constitution for being unworkable.
The provision of Section 10 of the First Amendment was also declared invalid, and the original provision of Section 14 of the NAO was restored. The majority was of the view that the presumptions contained in the omitted section 14(c) of the NAO provided that, once the NAB had established that the accused, or any person on his behalf, was in possession of assets or pecuniary resources disproportionate to his known sources of income, the accused was presumed guilty of corruption and corrupt practices unless he could account for the resources or property recovered from them.
The NAB was not required to prove that the accused had obtained the resources or property 'through corrupt and dishonest means,' as the mere presence of disproportionate assets created a presumption of corrupt and dishonest conduct against him. It has been noted that this aspect of the matter has also been examined by Justice Mansoor Ali Shah in his dissenting note and has rightly observed that the different clauses of the omitted Section 14 of the NAO are the descriptive instances of the applicability of the principle of "evidential burden" enshrined in Article 122 of the Qanun-eShahadat, Order 1984 (formerly Section 106 of the Evidence Act 1872), which provides, 'When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him' and concluded that the omission of section 14 has no substantial effect on the mode of proving the offence of unaccounted assets possessed by a holder of public office beyond his known sources of income; as when the prosecution succeeds in proving that the particular assets of the accused are disproportionate to his known sources of income (legal means) and are thus acquired through some corrupt and dishonest means, the burden of proving the "fair and honest means" whereby the accused claims to have acquired the same, being within his knowledge, are to be proved by him as per provisions of Article 122 supra. I agree with the above conclusion and the same is upheld. On the other hand, the majority did not specify which particular fundamental right had been violated by omitting the provision of Section 14 of the NAO. Despite such an innocuous effect, the change in the rules of evidence falls within the legislative competence of Parliament under Article 142(b) of the Constitution. Unless such a change infringes upon any fundamental rights, it is not subject to judicial review.
20. The majority has declared ultra vires the Constitution the addition of Explanation II to Section 9(v), which provides that for calculation of movable assets, the sum total of credit entries of bank account shall not be treated as an asset but rather the bank balance of an account on the date of initiation of inquiry may be treated as a movable asset and that a banking transaction shall not be treated as an asset unless there is evidence of creation of corresponding asset through that transaction. I have carefully examined the above clause and found that it defines the term 'movable assets' for the purpose of NAO. Through this clause, the Parliament provides a specific criterion for calculating movable assets with reference to banking transactions. The language of the clause is clear and unambiguous. Further, it would eliminate any confusion and misunderstanding in determining the correct financial liability of the accused and the jurisdiction of the NAB to entertain a reference against him. The majority struck down the same by simply observing that 'the source, object and quantum of credits/ receipts in the bank accounts can now no longer be shown for proving the creation of assets. Nor can debit transfers from one account to another be used to show the accumulation of money for the creation of an asset. It goes without saying that bank records are usually the most pivotal evidence in financial crimes. However, by virtue of Explanation II limited resort can be made to them.' The above observation of the majority is not legally sufficient to render a provision of law invalid unless a specific fundamental right or other provision of the Constitution that the provision in question violates has been identified. The majority did not identify any such violation; hence, the above observation is devoid of any merit.
Similarly, the majority has declared ultra vires the Constitution the following amendments also, (i) the omission of clause (g) of section 21, which omission has made applicable the provisions of the Qanun-e-Shahadat to documents or any other material transferred to Pakistan by a Foreign Government in legal proceedings under NAO; and (ii) and the addition of second proviso to Section 25(b), which provides that in case of failure of accused to make payment in accordance with the plea bargain agreement approved by the Court, the agreement of plea bargain shall become inoperative to the rights of the parties immediately. While declaring so, the majority has not explained how they infringe any of the fundamental rights or any other provision of the Constitution. To sum up, I have no hesitation in stating that the above amendments neither take away nor abridge any fundamental rights in terms of Article 8(2) of the Constitution. They fall within the legislative competence of Parliament.
21. It is pertinent to mention that these appeals have been filed under Section 5 of the SCPPA (Supreme Court (Practice and Procedure) Act, 2023). The vires of this Act were also challenged before this Court, and except for Section 5(2), which provides a retrospective right of appeal against an order passed under Article 184(3) before its commencement, the Act was upheld by the Full Court Bench of this Court (by a majority of 10 to 5) in Raja Amer Khan's case supra. The majority opinion was authored by Justice Qazi Faez Isa, the Hon'ble Chief Justice. However, Justice Syed Mansoor Ali Shah, in his additional note supporting the SCPPA, made an important observation regarding the validity and legality of the constitution of benches and their decisions during the pendency of the petitions challenging the vires of the SCPPA as it prescribes a special procedure for constituting benches to hear cases involving the interpretation of a constitutional provision. The said observation (citation(s) omitted) is reproduced below for reference: '33. To avoid this question, I had earlier expressed my view that until the question of the constitutionality of the Act was decided, the cases invoking the original jurisdiction of this Court under Article 184(3) of the Constitution or that which involved the interpretation of the constitutional provisions should be adjourned or heard by a Full-Court Bench. Nonetheless, I have now thought over the question as it has actually arisen and the ramifications of its answer in either way, in light of the cases where this Court espoused the doctrine of past and closed transactions. The principle that I gathered from reading such cases is that the acts done in accordance with the law prevailing at the time of their doing are generally protected under this doctrine. The operation of the Act having been suspended by an eight-member Bench of this Court, the then Hon'ble Chief Justice constituted the Benches in accordance with the law that was prevailing at that time, i.e., Order XI of the Rules. One may argue that the Court should not have suspended the operation of the Act, but cannot deny the fact that it was indeed suspended.
So when applying the said principle to the question under consideration, we find that the act of constituting Benches by the then Hon'ble Chief Justice should be protected unless some exceptional circumstances may justify departure from the principle. No one from among the learned counsel who argued this case before us presented or pointed out any of such exceptional circumstances.
34. When the inconvenience or injustice likely to occur due to applying or non-applying the doctrine of past and closed transactions is measured on the principle of proportionality, the scales tilt in favour of following the above principle rather than the exception thereof; for a great amount of public time had been spent in hearing and deciding the cases by the Benches of this Court constituted by the then Hon'ble Chief Justice. I would therefore apply the doctrine of past and closed transactions to the acts of constitution of benches and decisions of the cases by those benches during the period of suspension of the operation of the Act.
36. Since I have addressed herein some points that are not included in the leading judgment authored by the Hon'ble Chief Justice, let this be circulated among my learned colleagues who joined in para 1 of the short order of the Court in sustaining the constitutional validity of the Act.'
Emphasis Supplied.
22. The said additional note addressed important legal aspect of the case that was not dealt with in the majority judgment; therefore, it was circulated among all the members of the Full Court Bench (Qazi Faez Isa, CJ, Sardar Tariq Masood, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Athar Minallah, Syed Hasan Azhar Rizvi, and Musarrat Hilali, JJ.) who upheld the SCPPA. They all agreed and signed the said additional note. However, Justice Muhammad Ali Mazhar and I expressed our disagreement only with respect to paragraphs 20 and 35 of the additional note, which relate to Section 5(2) of the Act, providing the retrospective right of appeal. It is by now well settled that when a case is heard by a Bench of two or more Judges, the case is decided by the opinion of such Judges or the majority of such Judges. Judgment or order of the Court is pronounced in terms of the majority opinion; such judgment or order is of the Bench that heard the case and, for that matter, of the Court, and not only of the Judges whose opinion prevailed as a majority opinion. This is why a unanimous opinion of a five-member bench on a legal question can be overruled by a majority of four Judges while sitting in a seven-member Bench. It is the numeric strength of the whole Bench that determines the judicial power of its Members and not the number of individual Judges in the majority. Reference may be made to the case Messrs Cherat Cement Co. Ltd., Nowshera and others v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others (PLD 2021 SC 327).
23. In view of the above legal position, the opinion expressed in the additional note would now be the opinion of the Full Court Bench of this Court. No doubt, the petition challenging the 2022 Amendments involved the interpretation of a constitutional provision and was required to be heard by a bench comprising not less than five judges, as mandated by section 4 of the SCPPA. However, it was heard and decided by a three-member bench of this Court. At the relevant time, the operation of the said Act was suspended; therefore, the decision of the three-member bench is fully protected under the doctrine of past and closed transactions, as held by the Full Court Bench of this Court in Raja Amer's case (supra). The Hon'ble Chief Justice overlooked this important aspect and also forgot that he was a signatory to the above additional note while stating that 'I agreed with my distinguished colleague and the points determined herein may be considered as part of the decision of this Court.' Therefore, his observation in paragraph 14 of the majority opinion rendered in the present appeals, stating that 'These appeals could justifiably be allowed on the ground that since the Petition was not heard and decided as required by the Act by a five- member Bench the impugned judgment is coram non judice and a nullity in law. However, in deference to the learned Judges of the three-member Bench who had spent considerable time in hearing the Petition (55 dates of hearing) it may not be appropriate to set aside the impugned judgment on this ground alone' is contrary to the law declared by a Full Court Bench of this Court and is, therefore, per incuriam.
24. This Court, in exercising jurisdiction under Article 184(3) of the Constitution, which is inquisitorial in nature, has the same powers as those available to the High Court under Article 199 of the Constitution. It is not limited to acting only at the instance of an aggrieved party, as in adversarial proceedings. When dealing with a case, the Court is neither bound by the procedural requirements of Article 199 nor by the limitations mentioned therein. Therefore, a petitioner before this Court under Article 184(3) of the Constitution may not need to have a personal grievance in the matter. If the petitioner can satisfy the Court that the issue raised is of public importance and pertains to the enforcement of fundamental rights guaranteed by the Constitution for a reasonably large section of the population, the petition can be successfully maintained. Reference in this regard may be made to Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632); Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 SC 161); Watan Party and another v. Federation of Pakistan and others (PLD 2011 SC 997)and Abdul Wahab and others v. HBL and others (2013 SCMR 1383) Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan (PLD 2017 SC 265). In light of the above, it can safely be said that whether a particular case involves the element of 'public importance' is a question to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter of public importance. Similarly, it cannot be said that a case brought by a large number of people should always be considered one of public importance simply because many are interested in it. Public importance should be assessed with reference to the freedoms and liberties guaranteed under the Constitution, their protection, and the infringement of these rights in a manner that raises a serious question regarding their enforcement, regardless of whether such infringement is alleged by an individual or a group.
However, to qualify as having 'public importance,' the case must raise a question that interests or affects the entire community or public at large. In other words, the case must give rise to questions affecting the legal rights or liabilities of the public or community, even if the individual subject to the case may be of no particular consequence.
25. In this case, the petitioner raised a question of public importance regarding the enforcement of the 2022 Amendments, alleging that these amendments would affect the entire community and the public at large. Therefore, such an important question could not be resolved without scrutinizing the case on its merits. It would be highly unjust to hold that the three-member bench assumed jurisdiction in disregard of the mandate of Article 184(3) of the Constitution. Furthermore, the word 'consider' in Article 184(3) of the Constitution pertains to the subjective assessment of this Court, which is the final authority on matters relating to the judicial determination of the constitutional provisions. Thus, once the Supreme Court concludes that a question of public importance, having nexus with the Fundamental Rights guaranteed by the Constitution, has been raised, the exercise of its jurisdiction under Article 184(3) cannot be challenged by anyone.
Reference in this regard may be made to Ali Azhar Khan Baloch & others v Province of Sindh and others (2015 SCMR 456).
26. In view of the foregoing, it is found that Parliament has competently enacted the 2022 Amendments, which do not violate any Fundamental Rights or any other provisions of the Constitution. Therefore, the appeals are allowed, and as a result, the impugned judgment is set aside. No order as to costs.
Passing of Remarks against Judges of the same Court
27. Before parting with this note, I am constraint to record that the Hon'ble Chief Justice while expressing his disagreement with the views of the former Hon'ble Judges (Umar Ata Banidal, CJ. and Ijaz ul Ahsan, J.) of this Court did not keep in view the judicial propriety expected of a Judge of a Superior Court. A Judge of a Superior Court while taking oath of his office also undertakes to abide by the 'Code of Conduct for Judges of the Supreme Court and High Courts' framed by the Supreme Judicial Council under Article 128 (4) of the 1962 Constitution as amended up-to-date under Article 209(8) of the Constitution. Its preamble requires that 'the prime duty of a Judge as an individual is to present before the public an image of justice of the nation. As a member of his court, that duty is brought within the disciplines appropriate to a corporate body.' Besides other important requirements, the Article IX of the Code of Conduct requires as follows: 'ARTICLE- IX In his judicial work, and his relations with other Judges, a Judge should act always for the maintenance of harmony within his own Court, as well as among all Courts and for the integrity of the institution of justice. Disagreement with the opinion of any Judge, whether of equal or of inferior status, should invariably be expressed in terms of courtesy and restraint.
Emphasis Supplied.
28. The Hon'ble Chief Justice perhaps made the said remarks because his lordship was hearing an Intra-Court Appeal under the newly enacted law, i.e., the Supreme Court (Practice & Procedure)
Act, 2023, and as such assumed himself as an appellate/superior authority over a bench of the same Court which passed the impugned judgment. If the Hon'ble Chief Justice was really considering it in this manner, he, therefore, misconceived his position and the above law as well.
The petitions under Article 184(3) of the Constitution are being filed and adjudicated by this Court as a routine matter. After the enactment of the SCPPA, now a Judge of this Court may sometimes be the member of a bench that originally decides a petition under Article 184(3) of the Constitution and sometimes he may be the member of the bench that may decide an I.C.A under the SCPPA against an original order/judgment in that petition. Thus, if a member of an appellate bench makes remarks against a member of the bench that issued the original judgment, it is likely that the other member would respond when he gets a chance to be a member of an appellate bench against his order. This may lead to a cycle of passing remarks against one another, which would not only become routine but also diminish the stature of this Court, both in the eyes of the people of Pakistan and internationally.
29. To sum up, it must be remembered that an I.C.A. is not an appeal against the decision of a subordinate court. Moreover, Article XI of the Code of Conduct must be more strictly adhered to when a judge of a Superior Court expresses dissent or disagreement with the view of another judge of the same Court, as judges of Superior Courts, including the Chief Justice, are equal. It is therefore desirable that dissent and disagreement never take the form of comments akin to those of an appellate forum but should always be expressed with courtesy and restraint. Dissent and disagreement should remain confined to matters of law and, under no circumstances, extend to the conduct or personality of another judge.
1. Justice Qazi Faez Isa and others v. President of Pakistan and others (PLD 2023 SC 661)
2. ManzoorElahi v. Federation of Pakistan (PLD 1975 SC 66)
3. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)
4. Khawaja Salman Rafique v. National Accountability Bureau and others (PLD 2020 SC 456)
5. NAB versus human rights, Dawn October 15, 2020)
6. Asif Ali Zardari v. The State (PLD 2001 SC 568)
7. Tribune, February 12, 2023
8. Dawn September 30, 2020
9. Dawn November 24, 2022
10. The following advocates of the Supreme Court: (1) Mr. Khawaja Haris, (2) Dr. Yaser Aman Khan,
(3) Mr. Ahmad Rauf, (4) Mr. Sher Afghan, (5) Mr. M. Zubair Khalid, and the following advocates: (6)
Kh. Issam Bin Harris, (7) Ms. Faiza Asad, (8) Mr. Sameer Khosa, (9) Mr. Bahadur Ali Bukhari, (10) Ms. Zainab Ch., (11) Ms. Maleeka Ali Bukhari, (12) Mr. Hashim Butt and (13) Mr. Shoaib Ilyas.