I was aroused in the last ten days of this month by an article by Senior Anchor, Syed Talat Hussain, a visionary of Naya Pakistan, appearing in Daily News on 21st of May 2018. It was a close follow-up of an article by Mr. Zahid Gishkori on 17th of May 2018.
Nearly a quarter of a century ago, live on TV, this Senior Anchor who was not so senior then, had asked me, a retired judge of the Supreme Court of Pakistan, can I not do justice sitting on a cot? I had exercised restraint in giving a reply to it but immensely enjoyed it, and in a lighter mood, I have made it part of the first chapter of my memoirs. That need not be brought to light right now.
The title of the write up is “Truth shall prevail.” He has written
“This is all included in the detailed October 19, 2012 judgment of the Supreme Court which had found Generals and Yunus Habib, the donor, the then President Ghulam Ishaq Khan and the recipients of these funds to be involved in illegal activities deserving of legal action against them”
While writing this was he still unaware that there exists in the Constitution of Pakistan a provision in the following words (only the relevant portion reproduced below)
Article 248 (1)“The President—–shall not be answerable to any court for the exercise of powers and functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions”
He should have been aware that the Supreme Court could not itself jump over this barrier. Instead, the Prime Minister in protecting this barrier lost his office and stood disqualified in an entirely different jurisdiction of Contempt of Court.
Again, did he not know that there was Article 243 (2) of the Constitution in following words?
“Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President”
Did anyone determine how far down in the rank and file of the Armed Forces this protective shield of the President will go and when, how and where it ended?
He has written further that
“But the case has come up for investigation after a decade of dormancy”
Did it ever appear to him that there was a design in the madness? Dormancy of so many unseen, unreported unaccounted but the one selected on the eve of nationwide election should list with photograph of all the politicians, male and female, aged and young ones, dead and alive, “aging and frail” as he puts it to call them and expose them as those who rigged the elections decades earlier, leaving the media free to paint their faces generously with a brush, as black as possible.
On the other hand, those high in the Armed forces were similarly exposed and painted. Those left with unblemished faces, for the time being, were the media men and the adjudicators of the country wherever they happened to be. Does it appear to be a fair deal in anyone’s Naya Pakistan?
He writes further
“Supreme Court has now ordered FIA to proceed with the probe and determine penalties”
Is he still not acquainted with the absolute prohibition placed on the Supreme Court to do any such thing? The relevant provision of the of the Constitution is as follows
Article187. Issue and Execution of process of Supreme Court—
(1) Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document.
(2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a province, or a territory or area not forming part of a province but within the jurisdiction of the High Court of the province be executed as if it had been issued by the High Court of that province.
(3) If a question arises as to which High Court shall give effect to direct order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final.
This prohibition, restriction or restraint is so clearly worded that no further clarification is needed. However, I can assure that I have examined the Indian law and the American practice and everywhere law may be differently worded, but the practice is the same or similar. After deciding a case, passing an order. issuing a decree, the Supreme Court becomes, as they call in law ‘functus officio’, and is required to distance itself from it, keep no eye on its execution, no oversight how further proceedings take place. That jurisdiction passes on exclusively to the High Court. These can be brought back in the Supreme Court only in “inter partes” adjudicatory proceedings related and confined to what happens in the High Court.
Next, the respected anchor starts describing what happened during an investigation by stating
“The FIA probe has taken all the ghosts of the history out of the box”
Legally even as a retired judge, my eyes cannot reach any further part of the FIA investigation, so I leave it for you to read further. Even as a Sessions judge I was not allowed to see the Police investigation diary but then a Viceroy of India very learned in law found what grave errors were committed to hanging people. Outside the domain of law, he permitted the judges to see the investigation record. This fact is mentioned in a book by David Gilmour “The Ruling Cast, Imperial lives in the Victorian Raaj” on page 127
“So distrusted were the police that senior judges were given the powers unknown to their colleagues in Britain, they could demand to see the Police diary containing the facts and statements on the inquiry”.
Not at all relevant for the subject but very interesting to know at Page 130 “forcing the Civil Servants to go to the judiciary without a law degree.”
At page 84 about Assistant Commissioners entourage in 1855 receiving a pay of Rs.300 per month “a bearer, a khidmatkar, a horse and buggy, attendant syce, par time shikari” and at p.139 “easing out and option of resignation widely practiced”. Finally, a brutality at page 126 “practice of cutting nose and keeping as wife,”
Finally, I am referring to a landmark decision of our Supreme Court which must be read, understood and followed by everyone administering the law, discussing the law, interested in not transgressing the God’s created Balance in life so much emphasized in Sura Rahman (Quran 55: 8). “Do not transgress balance while in affluence or power or in adversity and destitution.
I have two reasons to be so moved by this decision. The CSP officer who lost his life was a year junior to me in Allahabad University in 1947. We were both studying English Literature from the renowned Urdu poet Firaq Gorakhpuri. Even then he appeared to be an outstanding poet for his age. He was then known as Tegh (“sword”) Allahabadi. The officer’s mysterious death was a matter of concern for everyone and the strain on the investigation. Agency was so much that it approached the Supreme Court which decided the case admirably laying down the law in the following words for generations to come.
The Citation of the Supreme Court decision in Shahnaz case is: Shahnaz Begum v Hon’able Judges of the High Court Sind and Baluchistan PLD 1971 S C 677.
The concluding part of the citation is as follows:
” …. we would like to add by way of caution that it is of the utmost importance to remember that a superior court should not allow itself to be influenced by sensational reports in newspapers or by what he (the judge) he may have heard or read outside the court, for, in the first case it may unwittingly be encouraging a trial by the press and in the other case unnecessarily be exposing itself to the criticism that its actions are motivated by bias.”
Our Sufi judge, K. M. A. Samdani in his book Jaeza (2004) on page 67 recorded as follows:
“A Britisher while leaving the country said of all the institutions that we are leaving only the judiciary is such which cannot be damaged by anyone except by the judges from inside. Exactly this has happened with our judiciary”.
The response is so much that does not bother anymore for anyone else.
Experiences of a Lifetime 