Chief Justice of Pakistan Gulzar Ahmed said on Thursday that Supreme Court Justice Qazi Faez Isa "should not hear matters involving the prime minister" in a written order on a petition pertaining to allegations that the premier distributed development funds among lawmakers.

Dismissing the petition, the top judge noted that since Justice Isa had, in personal capacity, filed a petition against PM Imran Khan, it "would not be proper" for the former to hear cases involving the PM in order "to uphold the principle of un-biasness and impartiality".

"It would be in the interest of justice that the honourable Judge [Justice Isa] should not hear matters involving the Prime Minister of Pakistan," the written order reads.

These remarks came after the order highlighted that Justice Isa had raised questions over federal and provincial governments' insistence that funds had not been doled out to ministers or members of assemblies.

It adds that Justice Isa submitted before the court copies of some documents that he said were sent to him by someone through WhatsApp.

However, the "honourable judge also stated that he was unsure if the documents were genuine", the order notes.

In response, Attorney General for Pakistan (AGP) Khalid Jawed Khan urged the court not to make the documents a part of record since their authenticity was questionable, the order recalls, adding that the AGP further pointed out that if these documents were made part of the record, "the Hon. Judge [Justice Isa] would become a complainant in the matter and in that capacity it would not be appropriate for the Hon. Judge to hear the matter".

Accepting responses by the governments that no funds had been handed out to lawmakers, the order says "it appears that the queries raised by this Court in the order dated 03.02.2021 have been responded/addressed by all the respective Governments and thus, we see no reason to further proceed with the matter."

“The divergent opinions and the sharp divide among the judges were in display in the Courtroom No 1 today,” observed a senior counsel who witnessed the arguments in court on Thursday.

Case details and hearing

The five-member bench had taken up a case relating to the distribution of Rs500m uplift funds among the legislators.

Prime Minister Imran had denied that Rs500 million public funds were distributed among the parliamentarians and said no money would be given to the legislators for carrying out any development scheme.

But Justice Isa, a member of the five-judge special bench, questioned the assurance by presenting a Whatsapp message he had received from an unknown source on Wednesday. The message contained supporting documents showing doling out of massive amounts recently for building roads by the Pak-PWD department in the constituency NA-65 that belongs to an important coalition partner.

The chief justice, however, disposed of the matter with an observation that there had been a contest between a judge and the prime minister.

At the outset of the hearing, Justice Umar Ata Bandial, also a member of the bench, asked the AGP whether he had considered that the prime minister was ever answerable in his personal capacity.

“Why don’t you raise the question of protection available to the prime minister,” Justice Bandial asked the AGP. He said that the court could go against the prime minister only if he was answerable since the government spoke through (departmental) secretaries.

“Don’t cause us to do illegal and unconstitutional things,” Justice Bandial emphasised.

The AGP conceded that this was a matter of jurisdiction and the Constitution and he would object to that.

“What are you objecting to, whether the Constitution or the February 3 court orders,” Justice Isa inquired. “Both,” the AGP replied.

“I don’t understand,” Justice Isa said, adding that the AGP should have raised objection at the last hearing on February 10. The AGP replied that constitutional objection could be raised any time.

Justice Mushir Alam, another member of the bench, asked the AGP to read out the statement he was required to do under the February 10 court orders, which he did and the chief justice observed that it was a comprehensive reply.

Then Justice Isa referred to the WhatsApp message and wondered whether it was not a favour on behalf of the government through disbursement of public money or was it a mere coincidence that NA-65 was represented by an important coalition partner.

“We are not enemies but we are only trying to follow the Constitution and want to ensure that corrupt practices are guarded against,” Justice Isa observed and spoke about a barrage of tweets against him.

“Please be reminded that we are guided by the Constitution which requires the Election Commission of Pakistan to ensure that no corrupt practice takes place, especially at a time when Senate elections are round the corner,” Justice Isa observed.

Was this not in the knowledge of the prime minister, he observed, adding that the judges knew that the prime minister was protected under Article 248 of the Constitution but there was a difference between his political matters and official acts.

The chief justice, however, observed that the court did not control the prime minister office and that the premier had already denied the media reports.

When Additional Advocate General of Punjab Qasim Ali Nawaz Chowhan assured the court that no public funds were being distributed among the lawmakers, Justice Isa asked whether the document, which he had provided to him and the judges, looked genuine or not.

The AGP came to the rescue of Chowhan by saying that it was a genuine complaint and it needed to be examined since a judge was the complainant.

Justice Isa responded that he was only drawing attention by asking whether the document was genuine or not.

“No, no, this is a complaint because it is your Whatsapp message,” the AGP replied but the chief justice immediately intervened to dispose of the case.