ISLAMABAD: Former law minister Dr Farogh Nasim surprised the Supreme Court on Tuesday by presenting a document on the basis of which the entire presidential reference on misconduct was moved against Justice Qazi Faez Isa but it was available neither in the reference nor with the apex court.

And this is the same document the absence of which had made the petitioner’s side clamour for months to attribute malice on the part of the federal government to Justice Isa, a judge of the Supreme Court.

Dr Nasim shifted the entire burden on former attorney general Anwar Mansoor, saying it might be the oversight of his office not to place the document on record. He explained that he had been engaged by the federal government at the fag end of last week and when he went through the case he had to ask for the document.

Dr Nasim was defending the federal government before a 10-judge full court hearing a set of petitions challenging the filing of presidential reference against Justice Isa.

Minister-turned-lawyer Farogh Nasim told to satisfy apex court on illegal collection of evidence against Justice Faez Isa

When Dawn approached ex-AG Anwar Mansoor for comments, he said he would not make any at this point.

The purported document presumably is a piece of evidence that journalist Abdul Waheed Dogar had supposedly annexed along with his April 10, 2019 complaint filed with the Asset Recovery Unit (ARU) showing the United Kingdom’s land registry of the offshore properties believed to be owned by the wife and children of Justice Isa.

Justice Isa’s counsel Muneer A. Malik, who was connected from the Supreme Court’s Karachi Registry via video link, objected by saying that the petitioner’s side still did not have the copy of the document.

It was argued at length that no such document was available in support of Mr Dogar’s claim, but no one from the government’s side had ever come to deny it, Justice Maqbool Baqar recalled. The judge highlighted that the entire proceedings in the Justice Isa case were widely covered by the media and, therefore, the federal government must have known about the discrepancy but none came forward to explain it.

Advocate Malik spent two days only to highlight that this document, if made available, would show the basis on which the entire reference was made, recalled Justice Sajjad Ali Shah, adding that the counsel had made “us learn by heart about the procedure for collecting the property documents from the UK”.

He also recalled that even the former AG was not aware of this document when asked by the court and not even Dr Nasim who was present on some hearing dates. “Certainly, the federal government is at fault,” Justice Shah observed.

Advocate Iftikhar Gillani, representing the Peshawar High Court Bar Association, objected to presentation of the document at this stage, recalling that “we were begging for the document but it was not provided; therefore, it should not be looked at now”.

Justice Bandial, however, suggested to Dr Nasim to satisfy the court, when he would resume his arguments on Wednesday, whether a document retrieved or collected through illegal means could be relied upon and why the complaint was sent directly to the ARU and not to the Supreme Judicial Council (SJC).

The answers to these questions were necessary since “we have reached a critical point of malice as allegations were made that the documents were collected illegally”, Justice Bandial observed. He said the counsel had to paint a clear picture before the court as to why the ARU was approached when the government could have approached the president by following a particular path for sending the reference to the SJC.

Justice Baqar asked Dr Nasim what were the consequences if a proper course was not adopted in the collection of the document.

Dr Nasim described these questions as bullseye to reach a final conclusion. He will answer these questions on Wednesday.

At the outset of the hearing, Muneer Malik objected to the appearance of Dr Nasim on behalf of the federal government and argued that it was a settled law in the Rashid Ahmed case that the AG office had to issue a certificate in case a private counsel was engaged by the government to defend it before the apex court.

Dr Nasim explained that the certificate had been issued by the AG office and, therefore, the requirement of the judgement stood fully complied.

Justice Bandial observed that the federal government had the right to be represented and the fundamental thing was that when the incumbent AG had expressed his inability to appear on behalf of the government, the latter had to engage a private counsel.

Referring to Monday’s objection by Justice Isa to the appointment of Dr Nasim, Justice Bandial observed that the court deserved a sound and proper assistance to reach a conclusion. “The court has to break for the summer vacation in June and it is our intention to conclude before it,” he said, adding that this would only lower the level of debate if the counsel went into the nitty-gritty of the fresh application.

“I will ask you not to press the application or we will pass an order,” Justice Bandial observed while pointing towards Advocate Malik.

Mr Malik contended that the entire case was about transparency and accountability and for the last nine months the eyes of the people had been focused on this court. “Therefore, we need to follow the settled laws,” he said, emphasising that the government, along with the AG certification, also needed to furnish the sanction for engaging a private counsel.

Justice Bandial asked Dr Nasim to place on record the certificate and the court would take a decision on it later.

Dr Nasim argued that it was an admitted fact that Justice Isa’s family owed three offshore properties and that a judge stood guilty of misconduct if he could not prove ‘money trail’ for acquisition of the properties in the name of his wife and children. It becomes essential for the judge, who stands at the highest pedestal, to prove the money trail for purchasing properties since the proximity between the husband and wife was very close.

At this, Justice Mansoor Ali asked why the counsel had jumped to the conclusion that the properties were owned by the judge, also wondering whether he had to explain all the time in case his children acquired a property in their own right.

Dr Nasim contended that the burden was not on him rather on the judge to prove the source of properties acquired in the name of wife and children since the judge should be blameless.

Justice Bandial wondered from where this presumption had emerged that the properties belonged to the judge, especially when his wife was regularly paying income tax and children were old enough to live independently.

The counsel argued that when the SJC had already issued a show-cause notice to Justice Isa who had also filed a reply to it, the bar under Article 211 came in and no court could interfere in the SJC proceedings.

Justice Muneeb Akhtar observed that the counsel seemed to be deviating from the earlier stand of misconduct taken in the reference by arguing on the money trial and source of the properties.

When Justice Akhtar asked whether the counsel had charged his professional fees, the latter replied in the negative.

Justice Qazi Muhammad Amin Ahmed asked why the government was curious about the property of the judge, wondering whether it would not militate against the independence of the judge if the entire onus was left at his shoulder to prove his innocence.

Published in Dawn, June 3rd, 2020