Judge of Lahore High Court 1969 – 1979
Within a week or so of my attaining the age of forty years, I was appointed additional judge High Court. I took over in March 1969. The constitution was amended to provide for all forty years as the minimum age. This was raised by another amendment to 45 years.
A Taste of Political cases: It was a great jump, from adversary proceedings cases to constitutional jurisdiction cases. It was abhorring. In one writ petition, then a student leader was shown parading on the road stark naked escorted by a group of unruffled Police officers. In another case, a ten-year-old untraced case was reopened and a black coat opponent was roped in. A third, a hue and cry from the servant quarter were sufficient to rope in a former minister. One trying such cases had only to imagine the brutalities and the torture that lurked in the background. Not one voice from the civil society. A thick curtain of silence and unconcern all round. What a job to do, what a culture for survival.
Commissions of Inquiry: An unending debate over their contents without anyone ever having access to the contents. Those having access talking wildest. The judge concluding the inquiry always being used as a shuttlecock. The politicians keep on playing their so-called “fair” game totally undisturbed, unconcerned, whatever the content of the report.
Example No.1. While I was an Additional Judge of the High Court I was called by the Chief Justice to enquire whether I would like to take up the duty of a tribunal to adjudicate on title deeds of vast property likely to be improved by Pat Feeder Canal in Baluchistan. I told the Chief Justice that I would not like to take any other duty as an Additional Judge. I was confirmed as a judge within a week and then I started discharging that duty. All of it was aborted by a generous executive order which substantially solved that problem.
Example No.2. One night I received a telephonic call from Canada, from a Barrister, who was earlier practicing in Pakistan, congratulating me on my appointment as Federal Law Secretary. I could not believe it. I passed a restless night. In the morning I found a notification to that effect and more congratulatory messages. I asked the Chief Justice. He said he was not informed of it. The more I thought about it the more perplexed I became. Three principles were ignored in making this appointment. First, the Chief Justice was not consulted about it. The second, my option to take up the appointment was not taken. Third, my own record of service which showed that I had voluntarily, and on a request, come to the judiciary was totally ignored.
Seeing my reluctance, a meeting of all the judges at Lahore was held. The consensus was that I should obey the order and then, maybe, after a few months come back. Nobody could foresee the consequences of disobedience or avoidance of such an order. I was in the thicket of judicial work, numerous commissions of inquiry, enjoying the freedom and normal life of judiciary; I decided not to obey such an order. I wrote a letter as mild, as apologetic and as explanatory as I could write, expressing my inability to take up the appointment. Nothing followed, not to my knowledge.
Example No.3,4, and 5: I cannot even write the title of these three commissions of inquiries.
They continue to remain highly explosive, each requiring a book-length to reach the head and tail of it. However, I cannot restrain myself from repeating one basic and elementary principle of personal safety and national security. As a lowly trainee officer of the executive we were told, never in writing but always by word of mouth, that if we ever reach the higher echelon of the elite in service or elsewhere, we should never be seen in public together for long to invite an easy attack from within or without.
With the democratic government dismissed in the country, with a tremendous mysterious blast of a well-stocked ammunition depot, (Ojhri Camp disaster in April 1988) how could our top brass of the army think of having a planeload of VIPs in August 1988, and inviting more en-route, with such tragic consequences for the nation.
Contempt of Court cases: I was from the very beginning reluctant to exercise contempt power. I have given an example of it when as a Sessions Judge Peshawar I handed over a person in contempt to the SHO present outside the court to teach the witness how to behave in court. Within minutes he was a thorough gentleman. It was my executive act impermissible in law and propriety. If I had sent him to the prison for six months, my knowledge and understanding of Pushtu would have been examined threadbare in appeal and all benefit given to the contemnor.
In High Court, I had to face a greater challenge. In 1974 I had granted preventive bail to three persons. Notwithstanding this order, they were arrested and taken to Dulai camp in Azad Kashmir and kept there, for about three years, till the government in Pakistan was overthrown by Martial law in 1977. On being released, they filed contempt applications against the top of the Federal Security Force (FSF) in charge who was already in prison as an approver and three DIGs and three SSPs. After enquiry, I convicted every one of them to six months imprisonment and some fine. I do not know what happened to them in appeal. I know that one of the convicted DIG attained the highest post of IG of a province. Just imagine he called on me over thirty-six years after in 2010 and explained that he did not arrest those individuals but was asked to bring them from Lahore to Rawalpindi which he did but did not know what was done to them after that. This explanation may have satisfied his conscience but not mine.
An effort to do a bit of research aborted
There was a general complaint that to victimize political opponents flimsy sedition cases were lodged and halfheartedly prosecuted. By a written note I asked the Registrar to let me have the figures of last three years, institutions, disposal and pending sedition cases. About a fortnight after, I was called by the Chief Justice to explain to me that he has been distributing all the politically vibrant cases very fairly and equitably among the judges and I should not have the feeling of being left out from making my own name in the political firmament. I could not make out whether this was the miracle of the brief of the Registrar or the transformed understanding of a judge after becoming Chief Justice. So another door of internal factual inquiry was closed on me by the Judiciary.
Search for a Role Model
The day I became a judge of the High Court I was assigned to the party of one senior judge or the other, which proved that there were well-marked parties of judges competing against each other. I liked one, not the senior most, but next to him, for his brilliance and sharpness in not only locating the law point involved in the case but the principles governing that legal point. I did not find this quality in any one else throughout my service as a judge and even after.
From my point of view he had two shortcomings. He never cared to check the facts of the case. When I asked him why he was doing so his reply was that at that level the lawyers were responsible for the correctness of the facts and not the judge. I had received the training that if your facts are incorrect your conclusion would never be right and further that you are free to arrive at a conclusion or to form an opinion but not on your facts. In our adversary system, ninety percent of the time is devoted to oral hearing and ten percent to written briefs. How and where can one check the facts? I was surprised to read in a book that US Supreme Court judges discuss their opinions not orally but through memos. What a secure way of rechecking facts and opinion when the occasion arose.
The other shortcoming was that he was impatient to the extent of intolerance to situations and persons not of his liking. The story goes, I am no witness to it, that a person was passing in the corridor adjoining his courtroom. His new leather shoe made a slight noise as new leather shoes do. He was called from outside and asked to stand in the courtroom with face to the wall for fifteen minutes. Subsequently, it was found out that he was Commissioner Multan, three years my senior. Such a treatment is amusing in the executive and maybe to the public also, but abhorrent in the Judiciary.
The other likely role model was ostensibly the gem of a man. As a lawyer, his chamber had produced the best and many outstanding lawyers. He was very hard working. Combined with ambition it was a virtue. He wanted to be close to every judge, to help all and to be seen as a leader of the lot. This effort of having a visible group of committed loyalist around him went a bit too far. He directed an inspecting judge to give an adverse inspection report to a service judge, four years my senior in service, six years my senior in University so that his elevation to the High Court is delayed. The inspecting judge did not comply with the command but also disclosed to the judge concerned the direction that he had received.
An executive service colleague of mine, about five years junior, had suffered most on the executive side and had also been well rewarded for being found not at fault on all such occasions. He wanted to come over to the judiciary when he was posted as Commissioner. He met the concerned judge and used to tell me every time what assurances he was given for his move over. Then after one such meetings, he told me that his move to the judiciary is not succeeding because with his seniority he was likely to become a judge of the High court which was not to the liking of those who matter. I was disappointed in my likely role model.
The third likely role model had taken charge of me from my day one, as a trainee in the judiciary and remained a benefactor till he opted to retire in 1981 as Chief Justice of the Supreme Court. I found by experience that judges who came from Service happened to more pragmatic, more aware of the value orientated ground realities and where possible took a middle path, never misbehaving with the lawyers appearing before them. I cannot explain it better than by reproducing my own working principle:
“A judge must do justice though the heavens may fall”, and addition thereafter is mine, “but he must ensure that the heavens do not fall.”
This principle could be applied in two different ways with altogether different results. The first is that before starting writing or dictating the judgment I decide what would cause heavens to fall and cast the judgment accordingly. The other is, which I adopted, to dictate the judgment on facts, merit, and law irrespective of its effect or consequences. Then start a process of trimming it, to eliminate unnecessary hurtful portions, and those capable of being interpreted equivocally with unintended consequences, I have given clear example of it in Chapter 2 in the Indian Courts decision in Shah Bano case and its consequences on subsequent decision and the explanation given by my class fellow Supreme Court judge of India. Besides, I never thought of ever violating a clear Quranic verse or even an attempt to overreach it. Can anyone think of a judgment which can bring the doomsday even a second earlier? If not don’t use poetic license, hyperbole or imagery to show that anyone can do it. I will explain all this elsewhere in this very book of memoirs.
KMA Samdani has in his memoirs published in Urdu “Jaeza” mentioned at page 76 an instance of the Chief Justice advising the Chief Martial Law Administrator on a matter which was no concern of his. On other matters such consultations were taking place.
In the foreword of his collection of lectures and speeches of Mr. Justice (Retd.) S. Anwarul Haq “Revolutionary Legality in Pakistan” observes:
The Provisional Constitutional Order of 1981 could truly be described as a coup within a coup, directed solely against the Superior Courts of Pakistan. None of the harsh measures taken by the previous Military Ruler had done so much damage to the independence and powers of the judiciary of Pakistan as this, nullified the very judgment of the Supreme Court which had conferred legitimacy on his regime; he had placed himself above and beyond the reach of the laws and courts of the land; he had deprived the people of Pakistan of their fundamental right of seeking redress against excesses of the executive; and, finally, he had destroyed the independence of judges by arrogating to himself the power to arbitrarily remove them from office in disregard of the solemn guarantees and procedures embodied in the Constitution regarding security of their tenure.
Midnight firing at me at Bahawalpur 13th January 1977
While on the circuit in Bahawalpur with another judge of the High Court, on the 13th January 1977 at midnight during sleep I heard six to eight shots fired close outside. I did not care about it, went to sleep again. It was not an act of bravery or cowardice on my part. It was a repetition of an experience. In 1958 I was posted as District Magistrate/ Deputy Commissioner Bahawalpur. I received a report that firing had taken place at Circuit House. As a District Magistrate, it was my duty to look into it. I got an inquiry conducted, of course from the Police department itself. The report was that the guard on duty had fired during duty and he was of an unsteady mind. I asked the Superintendent of police orally to post him where Police officers of unsteady mind were posted. I was reminded of that event, so did not bother about it.
In the morning I went for a long walk. On return, I found a Police team led by SHO waiting. They told me that they had been waiting for me for an hour. They wanted me to lodge the report. I told them that I had seen nothing, knew nothing and had no information to give. For two days they kept on asking me any friend or enemy in the neighborhood whom I suspected. Then they came forward with the description of a car, its color, registration number for identification. Finding all responses in the negative they stopped coming to me.
A week later there was a Bar dinner. There, a former colleague of mine who was a judge of the High Court but his term of appointment was not extended came to me to complain that I had given his name to the police as a suspect for firing. I denied and asked him why the police said so. He said that I had convicted three police DIG in contempt cases and he had with another judge reduced their sentence in appeal. I never cared to know more.
Landmark judgment of Lahore High Court
I call it a landmark because it happened to be against established precedent and on all fronts against me. In the year 1979, I was appointed ad hoc judge of the Supreme Court of Pakistan for a period. As a High Court judge, I had some judgments to complete and announce which I did after being appointed an ad hoc judge. A question was raised and the High court decided that with such appointment I ceased to be a judge of High Court and the judgments delivered by me were of no legal value. It was very kind of the Chief Justice not to dislodge me and my family from the residence which I was occupying as a High Court Judge. I could not claim any from Supreme Court being not till then listed as a supreme court judge.
Judge of the Supreme Court 1979-1994
Not being a front-runner throughout my life, the Supreme Court was not in my line. I knew well that with power came responsibility. Experience had taught me that our society is at a level where, maybe for some plausible reasons, free flow of information, meticulous collection of facts, open discussion was not taking place.
Broader outlook disapproved
The first and a shocking setback that I received was that on being placed on the Shariat Appellate Bench I suggested that in deciding cases we must look round how different sects are dealing with the problems and what is the view in the other Islamic countries about it. None agreed. Their only argument was that our neighboring country was not looking beyond their own fiqh why should we go beyond the Hanafi law.
For two reasons my disappointment heightened. First, I knew as a fact that one of our well-known jurists had undertaken to complete a comparative study of all the main sects but he could not, for reasons of his own, go beyond Volume 1 of it and there was no chance of its being completed. Independent individual research was not easy. The second reason was that as Chairman Zakat Council I had posed a question to experts of all main sects telling them that my understanding of Imam Abu Hanifa was that he had commanded that anyone differing with Imam’s opinion had an obligation to follow his own opinion till he himself was convinced of the correctness of the Imam’s opinion. To me, it appeared to be the most enlightened and expansive fatwa on the independence of thought, expression, and judgment. My intention was to reexamine the view that zakat money must be physically handed over to the entitled irrespective of the knowledge that he is likely to use it on drugs. Surprisingly, one of the retired judges of the High Court, a member of Zakat council asked me then what will happen to taqleed, an accepted principle of Hanafi Law. In that position, I could not correct elementary logical fallacy of a circular argument or that of begging the question. I dropped the matter.
I am and will always remain indebted to my colleague at the Shariat Bench, Justice Taqi Usmani. He introduced to me to the salutary principle of understanding of Quranic verse very different from understanding and interpretation of all different laws. It is, that context does not in any manner limit, control or guide the scope of the command that follows. That helped me a great deal. Second that his father, a scholar of high repute, had made 32 wills in his lifetime. I thought, very wrongly, that one must have a property to make a will, that no will can be made in favor of an heir that only one-third of the property can by will be given and that too to a stranger. I read thereafter as many wills as I could find in and outside the profession. I was most impressed by Socrates’ will. Against all advice, he decided to obey court(Senate) verdict and drink hemlock. Before drinking it he announced that he had got a chicken for which he had yet to pay. Somebody to take care of it. I was overwhelmed by this will. The third, that his father recited at least once a day a two-line prayer “All praise be to God I am thankful for all thy bounties/blessings”. I consider it to be the core of Sura Rahman (Quran Chapter 55) which my grandmother showered on me for at least twelve years. I am thankful to Maulana Taqi Usmani for what turned out to be a personal reminder.
Justice at whose cost?
At times while sitting on a bench I found the lawyer representing a party sheepishly making a request for a short adjournment, maybe a week or ten days. One of the senior judges on the Bench would softly remark, “So you have not received your fee, alright adjourned for a week.” None took notice that the opposite party who was in attendance with the lawyer had incurred at least Rupees fifty thousand for being present.
The justness of the justice system
There was a rule which had a reason behind it. ICS/CSP officers were generally transferred from the executive without consulting them, at times against their will, so a compensatory rule was made that if any such officer at any stage finds that his counterpart on the executive side was enjoying a benefit not available to him then he could avail of it. At that time there was an additional benefit allowed to all officers traveling on duty from Rawalpindi to Islamabad or vice versa. I did not really need it but in order to test the justness of the justice system, I made an application for it. I received no response for it as it was not transmitted to the competent authority. I was not informed what happened to it.
On checking on the internet I found that in India a small monetary benefit was allowed to those High Court judges who retired from High Court but without completing full period required for the pension. Such judges were made entitled to count a portion of their service in the subordinate judiciary to make up that deficiency. Judges appointed from the bar had no such back support. This disparity there was eliminated by a judicial decision.
Complete Justice, at what cost, at whose cost?
The trend had started much earlier but with the spate of public interest litigation under Article 184 of the constitution and the express empowerment of the Court to do complete justice, under clause 3 added a dimension and a direction unforeseen in law and destructive of the system itself. In doing complete justice all barriers of jurisdiction are ignored, all salutary rules of restraint and guidance are considered a mere technicality, the precedence of the court lost sight of and taken to be irrelevant.
As I never practiced law I rely on others experience in this domain. The soofi judge, KMA Samdani, in his book Role of the judiciary in the Constitutional History of Pakistan at Page 33 mentions:
Suffice it to say that law is technical. Behind every provision of law, substantive or procedural, a great deal of thought and philosophy is gone. Therefore no such provision can be brushed aside by calling it technical. If the technicalities of law are shelved, every court will stand to the status of a Panchayat. The difference between a “Punch” and a judge is that the former’s word is law while the latter’s word has to be in accord with law under which he functions. Therefore it is wrong to bypass the technicalities of law in the name of justice. Such an approach is, in fact, a contradiction in terms which must assiduously be avoided.
Another practicing lawyer, Babar Sattar, in his article “A new Chief Justice” ( Dawn 10th Dec 2016)
“Use Court No1.as bully pulpit, create headlines, take up populist issues and create consequences not by producing Jurisprudence or fixing the system but by clever court management.—there is absolute lack of ethics in our Court system”
In this background, the power of the Chief Justice to make or mar the reputation of the whole court, to make or unmake benches of the court, to report to President about the political affiliation of the judges ( see Ajmal Mian “A judge speaks out”) and to seriously disturb the collegiate functioning of the court, the following rule should be framed by the Supreme Court in exercise of its power under Article 191 of the constitution.
- A case under Article 184 of the Constitution shall be taken up for hearing only on the unanimous recorded opinion of at least two judges of the Court, identifying in very precise and objective words the fundamental rights to be examined and the nature and extent of public interest involved.
- Hearing of the case shall be done by three senior most judges available, other than the judges admitting the case.
- No appeal or review shall lie against such an order.
- As required by Article 187(3) final order passed by the Supreme Court shall be transmitted to the High Court for implementation as its own order, without any control or oversight of the Supreme Court over such proceedings in the High Court
- Orders passed by the High Court shall in accordance with the existing rules, take up by the Supreme Court by leave of the Court and further proceedings may take thereafter accordingly.
If one were to read Justice Ajmal Mian’s book with attention one would find (please excuse my language onwards) that our Supreme Court got fractured over the completion of the building in Islamabad, over its premature shifting to Islamabad, over its foundation laying ceremony and my role appears as a defector. Why should one take note of the fact that the US Supreme Court had to wait over 150 years to get its own abode, that too after it had shown its own stature and power?
Very few know that a lady emissary of the Government came to our Chief Justice requesting lowering of the building by a few feet to save the recurring cost of rec air-conditioning. Nothing but straight refusal was offered to her. In India, two states not very rich are involved in a do or die struggle over competing for the height of their favorite building.
I end here in a lighter note, quotes from a book “Letters of an Indian Judge to an English Gentlewoman” by Dorothy Black (Anonymously)
“India was full of pioneers when there were only mat huts for offices and wooden buildings for huts, but by and by a man must build for himself a splendid stone house and inside so cool and pleasant his soul goes to sleep and so the enemy creeps inside his gates.” [page 181]
“To much expensive legislation, too many faddist notions, too many large imposing buildings—these are at rock bottom of troubles in India.” [page 158]
Chinese poem “ on the birth of his son in 1036. Families when a child is born want it to be intelligent. I through intelligence having wrecked my whole life, only hope, the baby will prove ignorant and stupid. Then he will crown a tranquil life by becoming a Cabinet minister.” [page 222]
Experiences of a Lifetime 