Islamabad:
On the basis of Islamabad High Court’s ruling, which restricts his judge from court work, the Supreme Court has decided that a judge before the same court cannot issue any kind of writing, nor can no case against another judge in the same court.
“The constitutional schedule of immunity against the judges of the overall courts is to secure the independence of the judiciary, which is the command of Article 2a of the Constitution. It is for this reason, a judge of the same court cannot issue any kind of writing, nor can no action against another judge of the same court Khan Mandokhail while hearing the case Failure for not setting a case for a bench in violation of the legal order.
Nazar Abbas had filed an intra -court appeal against the issue of the show message from the bench led by Justice Syed Mansoor Ali Shah.
The committee, which works under the Supreme Court’s practice and procedure, 2023 of the majority formed a six members larger bench to hear his intra court appeal.
Justice Shah had objected to the involvement of Justice Mandokhail and Justice Muhammad Ali Mazhar as they had violated the judicial order themselves and withdrew the case from the ordinary bench.
On January 27, two judges rejected, namely justice at have Minallah and justice Shahid Waheed, Nazar Abbas’ ICA because of his withdrawal.
However, the four judges who are members of the constitutional bench allow in a short order not to withdraw the entire appeal and noted that when the case is related to the interpretation of the Constitution, the appeal will therefore be issued and the reasons will be issued later.
In January, Justice Shah had noticed that both SC committees (five judges including CJP) were responsible for listing cases before ordinary and constitutional benches “illegally” withdrew a case from the bench and are responsible for contempt of court.
Justice Shah said in his order that the first committee led by CJ Afridi “illegally” withdrew cases from part of a bench and transferred it to the treatment of the second committee through an administrative order by undoing the effect of a court decision.
“While the second committee, in total ignoring the judicial order, adopted by the ordinary bench, only in accordance with the direction of the first committee, went ahead and laid the case for the constitutional bench on January 27, 2025.
“Both committees were not legally authorized to make administrative decisions dated January 17, 2025 in violation of the legal order,” it added.
Against this background, it said, it seems that the case should move on to the members of the two committees.
“However, judicial prosperity and decorum require that the said question be considered and decided by the full court of the Supreme Court, so it is authoritatively decided once and for all,” says Order written by Justice Shah.
After almost eight months, majority judges in ICA have handed down detailed judgment where justice Shah’s order has been discussed.
SC -judgment
Justice Mandokhail asked a question that whether members of both committees sitting judges could take place in accordance with Article 204 of the Constitution of their fellow judge for having obliged disdain for this court.
In paragraph 4 of his detailed decision, he states that sub-article (5) of Article 199 of the Constitution by virtue of having a constitutional position (5) of Article 199 of the Constitution gives judges in the Supreme Court and high courts of acts carried out within their legal and administrative capacity.
“The analogy to give immunity is to prevent a judge by a court from abusing jurisdiction and authority by judging and controlling a co -judge of the same court.
“It protects the judge from any interference from outside or within the institution. It protects the court’s integrity and authority and increases the judges’ ability to perform their duties smoothly to ensure that their decisions are not affected for fear of being subjected to any side effect.
“The concept of immunity is to preserve the authority of the legal institution that is crucial to the rule of law and for proper justice administration.”
The court said that if a judge at the Superior Court cannot give a writing to another judge before the same court, how can a judge have the power to issue a direction or initiate procedures in accordance with Article 204 (2).
“The claim of wrongdoing against a judge by the Supreme Court or to a Supreme Court can only be interrogated and dealt with in accordance with Article 209 of the Constitution of the Supreme Court Council (SJC).
“Sub-article (7) of Article 209 of the Constitution Bars Any Other Forum from Inquiring Into Matters of Misconduct Against A Judge of the Supreme Court or of a High Court. This is a substantive commission and salient feature of the constitution. Probe, Inquiry or Trial, Leading to Punishment.
The Court said that in the event that a matter, taking into account a case, if the jurisdiction of a court is removed through amendment to the Constitution or legislation or through new legislation, the court where the case must be awaited or dealt with as partly.
“A judge (s) or a bench (es) cannot refer the office or one of the committees to establish a particular case before himself, which is not within its jurisdiction or according to the guard schedule has not been determined before the said bench and can not withdraw any case already pending before another bench. Only the bench that has been seized with the case or partly
“The judges are bound by their oaths, the refereeing of the judges, the law and the rules. Strict compliance, of which it is important to maintain legal discipline and smooth function of the court. If any judge in the Supreme Court or by a Supreme Court begins to choose and choose cases of disposal from him, without following the practice and procedure in Vogue, about their respective courts, will discipline in court. as a whole.
The court said that simply by placing files of the petitions before the ordinary bench does not mean that it caused the jurisdiction to continue with the case.
“In any case, constitutionally, the ordinary bench was therefore the function of Functus Officio, should therefore have stopped the procedure and left the cases at their disposal from the forum that had jurisdiction.”
The court said it was the constitutional obligation for the members of the ordinary bench to have complied with the command of the Constitution by refraining from moving on in the case, especially when the learned attorney for the petitions referred to Article 191a (3) & (5) of the Constitution, but the learned members of the ordinary bench chose to continue into the case.
“With great respect, there was no reason for the ordinary bench for further procedures in the case in violation of the relevant provisions of the Constitution.”
The verdict also said there is a question of how they decided to continue against members of the committees.
“Even otherwise, the order said could not be implemented by the grounds, firstly there was no direction from the ordinary bench to any of the committees; secondly, members of both committees have no power to determine the petitions before the ordinary bench, which, when operating the constitutional petitions, already transferred and pending for the Constitution bench before they adopted the order for the order before it.
“Members of both committees have no role in either transferring the petitions to the constitutional bench, nor did the power to pull them from there and fix them before the ordinary bench. In any case, members of both committees did not do anything that would constitute an act that fell within the framework of Article 204 of the Constitution.”
Abuzar Salman Khan Niazi Advocate says the principle of Nemo Judex in Causa Sua K (no one can be a judge in his own case) has been firmly maintained by the Supreme Court in Pakistan, which has stated that even the probability of bias witates.
“While I totally agree that a judge cannot issue a written or disdain message against a co -judge, the question here is not the legality or constitutionalness of the contempt himself”
Niazi says the case was already settled and that the messages were withdrawn; But when the case of contempt notification against two judges came to court, they chose to hear and decide on themselves. By sitting in judgment on their own case, they violated this basic principle and made the matter illegal, Coram Non Judice and without legal authority under Article 10a of the Constitution, “he adds.
Another lawyer wonders when the final order was not contested how the bench could set aside a verdict.
The order also prevents a judge to correct the fixing of a case that is not listed on the list of the cause.
