KARACHI, Jan 13: The Sindh High Court overruled on Tuesday its office objection to the maintainability of a petition against three of its judges and issued pre-admission notices to the federal and provincial government law officers for Jan 21.
The petition, moved by the Sindh High Court Bar Association, came up before a division bench comprising Chief Justice Anwar Zaheer Jamali and Justice Faisal Arab along with the office objection, which questioned its maintainability as no writ could be issued to or against a high court judge under Article 199 of the Constitution.
Arguing against the objection, SHCBA President Rasheed A. Razvi said a writ of quo warranto (a direction to show the authority by which a public office is held) was exempt from the general rule. Quo warranto could be issued by a high court against its judge under Article 199 and by the Supreme Court against any superior court judge, including its own chief justice, under Article 184 (3).
However, while the high court had no authority to restrain its judge from performing the functions of his office, the Supreme Court could ask a judge to refrain from discharging his duties pending the hearing of the petition against him. He cited the 1998 Supreme Court judgment in Malik Asad Ali’s case against the then chief justice, Sajjad Ali Shah, in support of his contention.
Overruling the objection, the bench issued notices to the attorney-general and the advocate-general for Jan 21. Notices in an application seeking production of the record of consultations held among the four judicial and executive consultees for the impugned appointments was also issued to the two principal law officers for Jan 21.
The petitioner association claims that Justice Bin Yamin was appointed a permanent SHC judge and Justices Syed Pir Ali Shah and Arshad Noor Khan were given a six-month extension each as additional judges despite a negative opinion rendered about them by the incumbent chief justice of the high court. The SHC chief justice is a judicial consultee along with the chief justice of Pakistan and his opinion could not be disregarded by the executive consultees, the president and the provincial governor, without recording reasons in writing, which could be subjected to judicial review.
The petition also claims that Dr Qamaruddin Bohra, another additional judge appointed on Dec 12, 2007, was relieved on the expiry of his year-long term, though the SHC CJ had recommended his confirmation as a permanent judge. Justice Agha Rafiq Ahmed Khan, yet another additional judge, was ‘reappointed’ and given the benefit of his previous 14-month stint as a judge though he was only recommended for ‘appointment’ or confirmation as a judge. The judge is currently serving as the secretary of the respondent federal law ministry.
The association says that the record of consultations is privileged and confidential but it has come to know of the deviation through ‘reliable sources’.
Unnar’s plea
The bench allowed a provincial attorney’s request for adjournment of the hearing of former provincial minister Altaf Hussain Unnar’s petition challenging his detention under the Maintenance of Public Order Ordinance after his release on bail in an anti-terrorism case. Advocate Waseeq Ahmed Kehar, the petitioner’s counsel, said the detention was mala fide as it was aimed at frustrating a court order.
Allowing adjournment to enable the respondent home department to file its comments, the bench directed it to admit him to a hospital of the detainee’s choice. Advocate Kehar said the detainee suffered from heart and kidney ailments and should either be lodged at the National Institute of Cardiovascular Diseases or at the Kidney Centre, Karachi, for prompt medical care.
Cement factory case
Justice Amir Hani Muslim, meanwhile, asked the court nazir to visit the Dewan Cement premises at Haripur Hattar, NWFP, and prepare an inventory of the public limited company’s assets. The order was passed in two recovery suits and the nazir was asked to submit his report in three weeks.
The Pak-Brunei Investment Company and the Pak-Iran Investment Company have sued the concern for not issuing term certificates and insuring the goods hypothecated by it to secure loan facilities extended by them. Pak-Iran has sued the company for recovery of over Rs84 million and Pak-Brunei for over Rs56 million. The plaintiffs submitted through Advocates Kazim Hasan and Abdul Qayyum Abbasi that the debtor company’s failure to issue term finance certificates in violation of the loan agreements amounted to default and they were entitled to decrees in their favour.
Police restrained
Another division bench comprising Justices Azizullah M. Memon and Abdul Rehman Farooq Pirzada restrained the Shahrah-i-Noor Jehan police station from interfering with the possession of its adjacent plot. The allottee/owner of plot 155, Sheet 4, Usman Ghani Colony, Karachi, alleged in his petition that the SHO of the police station adjacent to his 296-square-feet plot was not allowing him to take possession of his property. He was favouring another claimant, though he had shown him his title deed. The bench took the comments submitted by the city district government on record, passed the interim order and adjourned further hearing to a date in office.
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