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Pakistan Supreme Court updates

Discussion in 'Insaf - Justice' started by ghazi52, Jul 27, 2019.

  1. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    Murder convict can file second mercy plea: SC

    October 12, 2019

    ISLAMABAD: The Supreme Court has given another landmark judgement which will reduce death sentence in the country.

    A seven-judge larger bench of the apex court, headed by Chief Justice of Pakistan Asif Saeed Khosa, on Friday declared that sentence passed in non-compoundable offence like terrorism be reduced on the ground of compromise between parties in compoundable offence committed in the same case.

    “It is declared that in an appropriate case, keeping in view the peculiar circumstances of the case, compounding of a coordinate compoundable offence may be considered by a court towards reduction of the sentence, within the permissible limits, passed for commission of a non-compoundable offence,” stated a 27-page judgement authored by the CJP.

    The judgement declared that consideration of this factor vis-à-vis reduction of the sentence passed for commission of the non-compoundable offence lies within the discretion of the court and cannot be treated as automatic or as a matter of course.

    The judgement made it clear that there would be no acquittal in non-compoundable offences like terrorism on the basis of compromise between private parties in compoundable offence in the same case. However, it declared that the convict’s sentence could be reduced in similar situation.

    Pakistan Bar Council active member Azam Tarar believed that it was another CJP’s landmark judgement, which would open the window to reduce the death sentence in the country, saying that the verdict would protect life.

    “Even the court has also given opportunity to the convict approaching president for second mercy on the basis of compromise in similar matters and the president in his discretion may reduce the conviction in view of the apex court’s verdicts,” said Tarar.

    Barrister Asad Rahim said the SC clarified that a non-compoundable offence was distinct and independent from all other offences, and that there could be no acquittal whatsoever on the basis of compromise with private parties in a coordinate, compoundable offence. “There is now room for reduction in sentence, but that too is entirely at the court’s discretion, and only within permissible limits; it can never be automatic or a matter of course.”

    SC allows second mercy petition

    In its judgement, the apex court has also allowed a convicted person to move a second mercy petition to the president of Pakistan for fresh consideration on the basis of compromise between parties in a similar matter.

    The court noted that if the remedy of a mercy petition before the president had already been exhausted before compounding of the coordinate compoundable offence took place then after acceptance of the compromise by the competent court the superintendent of the relevant jail shall, upon the initiative of the convicted prisoner, forward a fresh mercy petition to the president seeking fresh consideration of the matter by him in respect of the sentence passed against the convicted prisoner for commission of the non-compoundable offence in the light of compounding of the coordinate compoundable offence committed by him.

    “When seized by such a fresh mercy petition the president may, in his discretion, consider the matter of the convicted prisoner’s sentence passed for commission of the non-compoundable offence afresh in the light of the judgements passed by this court on the subject from time to time.”

    The court also held that the trail court could reduce the sentence in the same matter after conclusion of the trial. Likewise, if compromise had taken place at the appellate or revisional stage before a high court or apex court at the stage of petition for leave to appeal or appeal or review petition, a prayer for reduction in the sentence passed for commission of the non-compoundable offence might be made.
     
  2. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    FBR turning into a burden: Justice Gulzar


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    KARACHI: The Federal Board of Revenue’s (FBR) performance was questioned by the Supreme Court of Pakistan (SBP) during a hearing on Thursday.

    Justice Gulzar Ahmed remarked that the board is turning into a burden for the government. “Why hasn’t the board been able to meet its tax targets?” They have employed more than 22,000 people just to collect 20 percent of taxes. More than 80 percent of the taxes are indirect, the judge said.

    The court was hearing an appeal filed by the federal board challenging the restoration of Muhammad Anwar Goraya. A two-member bench dismissed the board’s petition in the case. Goraya was posted as an accountant of the Inland Revenue Department in Karachi. He was removed from his post in 2015 over “inefficiency and corruption”. An FBR team had even submitted a report against his conduct. Goraya, however, had challenged his sacking. His appointment was eventually restored by a court.
     
  3. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    Justice Aminuddin Khan sworn in as Supreme Court judge
    October 21, 2019

    [​IMG]

    Chief Justice Asif Saeed Khosa administers oath to Justice Aminuddin Khan in a ceremony in Islamabad.
    Lahore High Court's (LHC) senior judge Justice Aminuddin Khan was sworn in as a Supreme Court judge on Monday.

    Chief Justice Asif Saeed Khosa administered the oath in a formal ceremony in Islamabad. The ceremony was attended by judges of the apex court and senior lawyers.

    The notification of Justice Khan's appointment had been issued by the Ministry of Law and Justice last week. He was the fifth senior-most judge of the LHC.

    Justice Khan started practising in the lower courts in 1985, soon after he was issued a license. In 1987, he was appointed as an advocate of the LHC, and of the Supreme Court in 2001.

    He joined Zafar Law Chambers in Multan in 2001 and worked with the legal firm until he was elevated to the position of a judge. He was appointed to the Bench in 2011.

    During his career, he assisted renowned lawyers like Mian Nisar Ahmed and Umar Ata Bandial — the latter of whom is slated to become the chief justice in 2022.

    Justice Khan has decided thousands of cases pertaining to civil matters and most of his judgments have been upheld by the Supreme Court.
     
  4. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    SC forms eight benches for next week to hear important cases


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    APP

    November 10, 2019

    Chief Justice of Pakistan (CJP) Asif Saeed Khan Khosa has constituted eight benches at the principal seat Islamabad to hear a number of important cases during the next week, starting from Monday.

    The first bench will comprised of CJP Asif Saeed Khan Khosa, Justice Sardar Tariq Masood and Justice Mazhar Alam Khan Miankhel while the second bench consists of Justice Gulzar Ahmed and Justice Maqbool Baqar.

    The third bench consist of Justice Mushir Alam and Justice Qazi Muhammad Amin Ahmed. Justice Umar Ata Bandial and Justice Ijaz Ul Ahsan will make up the fourth bench, while the fifth bench will consist of Justice Qazi Faez Isa and Justice Munib Akhtar.

    The sixth bench will consist of Justice Manzoor Ahmad Malik and Justice Amin0Ud0Din Khan. Justice Faisal Arab and Justice Sajjad Ali Shah will make up the seventh bench, while the eighth bench will consist of Justice Mansoor Ali Shah and Justice Yahya Afridi.

    According to case lists, no adjournment on any ground will be granted and no application for adjournment through fax will be placed before the court. Furthermore, if the counsel is unable to appear for any reason, the advocate-on-record will be required to argue the case.
     
  5. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    SC finds transfer of institutions from Centre to province illegal


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    ISLAMABAD: The Supreme Court on Thursday found transfer of the institutions from the federal government to the provincial government unconstitutional and of no legal affect.

    The court issued detailed reasons in a matter relating to devolution of health and education sectors after the enactment of 18th Constitutional Amendment.

    In January, a five-member bench of the apex court headed by the former chief justice Mian Saqib Nisar had dismissed the appeal of the government of Sindh against the judgment of the Sindh High Court that declared the transfer and devolution of the Jinnah Postgraduate Medical Centre (JPMC), National Institute of Cardio-Vascular Department (NICVD), the National Institute of Child Health (NICH) and the National Museum to Sindh as unconstitutional.

    "We find that the transfer of the institutions from the federal to the provincial government was unconstitutional, in that the institutions did not fall within the Concurrent Legislative List as required by Clause (8) read with Clause (9) of Article 270AA of the Constitution, hence the implementation commission went beyond its constitutional mandate in this regard," read the detailed reasons authored by Justice Ijazul Ahsen.

    "Consequently, any purported transfer/devolution of the institutions by the federal government and the subsequent notifications and orders issued pursuant thereto were unlawful and of no legal effect," the detailed reasons added.

    The court further found that from a perusal of the entries contained in the Concurrent Legislative List, as it stood prior to its omission by 18th Amendment, that none of them cover any of the institutions, i.e. JPMC, NICVD, NICH and NMP (“Institutions”).

    The court noted that Entry No.16 of the Federal Legislative List has two basic requirements: (i) the agency or institute in question must be “federal”; and (ii) such federal agency or institute must be for the purposes of research, professional training, technical training, or the promotion of special studies.

    “It is an admitted factthat the JPMC was a federal agency/institute and therefore satisfies the first limb of Entry No.16 of the Federal Legislative List,” said the detailed order.

    The court further noted that the hospital and institute aspects of the JPMC are interdependent and mutually supporting. “Bearing in mind the cardinal principle of interpretation that legislative lists ought to be construed liberally and be given the widest amplitude possible, we find that JPMC did fall within Entry No.16 ibid. As regards the first limb of Entry No.16 supra, NICVD was a federal agency/institute. As with JPMC, while it may be hard to say with certainty as to whether the research/training aspect outweighed that of treatment, a perusal of Section 6 of the NICVD Ordinance makes it abundantly clear that the research/training aspect of NICVD is not ancillary or incidental to the functioning of the hospital and therefore, we are of the view that NICVD falls within Entry No.16 supra,” says the detailed order.

    The court further held that Institute of Cardiovascular Diseases (Sindh Administration) Act, 2014 (“NICVD Sindh Act”) is basically a replica of the NICVD Ordinance.

    "The former appears to have been enacted to displace the latter. We find this act of the provincial assembly attempting in effect to overturn a federal law and nullify the same to be unconstitutional, particularly considering the fact that NICVD fell within the domain of the federal government as stands established hereinabove," said the order.

    The court observed that NICH was separated from JPMC in the year 1990 and made an attached department of the Federal Ministry of Health, thereby satisfying the first limb of Entry No.16 supra of being a federal agency/institute.

    While NICH has hospital facilities, it is an established fact that it is also a teaching/training institute offering various degrees/diplomas including FCPS, MCPS, nursing programmes and paramedical courses.

    Furthermore, NICH also has facilities for clinical research, resulting in the production of numerous research papers in the relevant field. Like JPMC and NICVD, these aspects as a whole bring NICH within the purview of the second limb of Entry No.16 supra.

    The court observed that it is an undisputed fact that prior to the purported transfer/devolution, NMP was a museum controlled/financed by the Federation and therefore squarely falls within the ambit of Entry No.15.

    The court observed that it is manifest from the objectives/functions stated in resolution dated 29.05.1986 vide which SPZMI was established that SZPMI has a predominant research/training aspect which was far from ancillary or incidental to the functioning of Sheikh Zayed Hospital, Lahore and therefore, the court is in no manner of doubt that SZPMI falls within Entry No.16.

    "We are of the view that the institutions were purportedly transferred/devolved onto the province of Sindh by the federal government pursuant to the 18th Amendment," said the detailed judgment.

    The court held that the implementation commission could only act in terms of clauses (8) and (9) of Article 270AA of the Constitution and since it failed to satisfy itself that none of the institutions were covered by the entries contained in the Concurrent Legislative List (as omitted by the 18th Amendment), therefore such Institutions could not have been devolved, consequently the purported transfer/devolution was unconstitutional and unlawful.

    The court further held that JPMC, NICVD, NICH and SZPMI fell within the ambit of Entry No.16 of the Federal Legislative List while NMP fell within the purview of Entry No. 15 thereof and were therefore within the exclusive federal domain and could not have been transferred/devolved upon the province of Sindh.

    "The transfer of SZPMI was also unlawful for the reason that it was done by the prime minister and not the federal cabinet as defined by Mustafa Impex’s case," the court observed.

    It noted that JSMU may also make arrangements to enter into a public-public or private-private or public-private partnership as per Regulations 9(5) and 14 of the Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards) Regulations, 2018.

    The court held that arrangements may be agreed upon with JPMC and NICH in order to ensure that the status of JSMU is prevented from falling foul of PMDC’s regulations. The court granted six-month grace period to JSMU during which the past arrangement vis-à-vis the faculty shall continue.

    If required, the court directed that JSMU shall ensure compliance with the faculty requirements as set out in the 2018 Regulations either by hiring separate full-time faculty for SMC on JSMU’s payroll; or JSMU negotiates with the Federal Government to allow the employees of JPMC and NICH to continue to be employed as the teaching staff at JSMU while holding a lien on their respective posts in the federal government.

    "The federal government, the provincial government and JSMU shall mutually agree on the workable methodology to retain and preserve the status of JSMU," the detailed verdict concluded.
     
  6. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    The performance of Pakistani judiciary is abysmal and taking a nose dive.
    At least one case is pending since 1956 and many others are pending for more than 10 years.
    There were 1.77 Million cases pending in 2014. As of 2018 there are 2.2 Million Pending cases and on the rise.
    What the head of the Institution, the Chief Justice is doing about it?
    Statistics speak for themselves, and these were published by the Law and Justice commission of Pakistan.


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  7. ghazi52

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    Law, procedure, grounds: Factors before SC for granting army chief an extension


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    ISLAMABAD: The Supreme Court on Wednesday said there were three points which the court will consider on the issue of extension to the tenure of Chief of Army Staff (COAS) General Qamar Javed Bajwa: the law, procedure involved, and grounds for granting an extension.

    The court took a strong exception to the government’s move for coming up with different versions while moving a fresh summary notifying extension in service to General Bajwa. A three-member bench of the apex court headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Mazhar Alam Khan Miankhel and Justice Mansoor Ali Shah heard a petition challenging the extension of COAS General Qamar Bajwa.

    The chief justice at the outset made it clear that the court is hearing a petition and it has not taken suo motu notice. Former law minister Farogh Naseem also came to the court for representing the COAS. The court noted that the prime minister had requested a reappointment whereas the president had issued a notification for extension in the army chief's tenure. The "Army officers are respectable but the Law Ministry, with its erroneous documentation, has attempted to disrespect them," said the chief justice. The court on Tuesday had suspended operation of the federal government notification for extension in service to COAS General Qamar Javed Bajwa.

    The court had noted that in the case in hand, the prime minister had himself passed an order appointing the current COAS for a second term in that office on 19.08.2019, whereas under Article 243 of the Constitution, it is the president who is the appointing authority for that office. General Qamar Bajwa is set to retire on November 29 upon completion of his three-year term. The government on August 19 had notified reappointment of General Bajwa, extending his tenure by three years citing “regional security environment.” After the court suspended the earlier notification, the federal cabinet later after amending Rule 255 of the Army Regulation in an emergency meeting approved a new summary for extension in the tenure of General Bajwa and dispatched it to the president for approval. “Even a summary for the appointment of an assistant commissioner is not issued the way you have issued a summary for extension in service to the army chief,” the chief justice asked Attorney General Anwar Mansoor Khan that resulted in a laughter in the courtroom.

    The chief justice said the prime minister, president, judges, speaker National Assembly, attorney general and Auditor General of Pakistan are constitutional offices. “At least one should have read the summary before issuing,” the CJP remarked and wondered as to why nobody even bothered to go through the summary before issuing it. “Two meetings were held and we hoped that big minds assembled there would present some good, but we have been thoroughly disappointed,” the CJP remarked. “Whosoever had done this, check out their educational degrees,” the CJP asked the attorney general in a lighter tone. “But Attorney General we sympathise with you”, the CJP said.

    The Justice Khosa said that there are three issues: one, whether the issue has any legal backing, second if the procedure and process was adopted as per law, and thirdly the reasons for appointment. “But for us only the first two are very much important therefore we have to decide it in accordance with law while you will have to take decision in this regard,” the Chief Justice asked the attorney general.

    The chief justice further observed that this is a court of law, adding that personalities don’t matter to them, only institutions do. “If everything was done in accordance with law than we would have no issue, but if it is done illegally, we have to protect the law and Constitution,” the chief justice remarked, adding that they have taken the oath to protect the Constitution and hence they are answerable to Almighty Allah.

    Earlier, at the outset of the hearing, Justice Mansoor Ali Shah questioned as to how an army chief can be reappointed to the office when he is no longer part of the staff.

    The attorney general replied that the army chief cannot be considered retired until he hands over command to another general. Justice Mansoor Ali Shah observed that Article 243 of the Constitution talks about the appointment of an officer, and questioned whether it also refers to period of appointment as well?" "Where does it say that it is a three-year term (for an extension)?" asked Justice Shah.

    The attorney general admitted that the period of the tenure is not specified in the rules. However, he said that there is no bar in the Constitution over the extension in service to the army chief. The chief justice said the matter is very important, adding that in the past, five or six generals granted themselves with extensions, however, nobody noticed it, but now it has come to the court and they are looking into it and will settle the parameters so that it does not happen in the future.

    The attorney general while citing Article 146 of the Army Act submitted that officials can be granted an extension of two months in case of a war. The chief justice said that as per law, the army chief can stop officers’ retirements in times of war, but here the government wants to stop the army chief’s retirement. The chief justice observed that section 255 of the Army Regulation amended by the government did not concern the army chief. He pointed out to the attorney general the amendment made by the government in the said section which relates to officials either retired or expelled from their services.

    Justice Syed Mansoor Ali Shah asked the AG as to whether a retired general can be appointed as the army chief. The AG however, replied that the reappointment and tenure are decided under the 1947 convention. The Chief Justice said there is no need of a convention when laws are available, adding that when the law is silent on anything, convention follows. “We have a written Constitution, while the British constitution is based on conventions,” the CJP said. The AG replied that law is silent over the tenure that’s why he referred to convention.

    The chief justice asked the attorney general to read out chapters of the Army Act, so that they could have a clear and whole picture to understand the rules. The attorney general went through various sections of the Army Act. He also clarified while referring to the army rules on Tuesday. He submitted that the court wrote 'law' in its order. The CJP observed that the court had given its order after looking at the documents presented by the AG. "The attorney general says that a general never retires," remarked the chief justice. "The attorney general has interpreted Article 243 according to which even he can be made an army chief."

    The chief justice told the attorney general that the president had not issued the notification on the prime minister's advice. He told the attorney general that the court was giving him one day to come up with a solution to the problem. He said if the mistakes are repeated then the court will have no other option, but to nullify the appointment "You have made the army chief a shuttlecock," said Justice Khosa. "There is still time. The government should step back and assess what it is doing," the chief justice remarked. "They should not do something like this with a high-ranking officer."

    The chief justice on one point read out the oath of Army officers, saying they would lay down their lives if needed for the defence of the country. “I will also not get involved in any political matters, very good,” the CJP remarked while further reading the oath of army officer.

    Meanwhile, the court asked Barrister Farogh Naseem to arrange a lawyer so that he could argue on behalf of the COAS. The chief justice asked Farogh Naseem to settle his issue with the Pakistan Bar Council (PBC) pertaining to his law practicing licence which has been suspended by the Council. The Vice Chairman Pakistan Bar Council, Syed Amjad Shah, along with his other companions and members of the Council was present in the courtroom right from the start of the proceedings. He told the court that Farogh Naseem could not argue before the court as it has suspended his licence.

    Farogh Naseem submitted before the court that the attorney general had already suspended the order of the Pakistan Bar Council. The chief justice asked Farogh Naseem that in order to avoid any difficulty during the proceedings, he should arrange his associate so that he could argue on his behalf. “You can be allowed to stand with your associate on the rostrum during his arguments before the court,” the CJP told Farogh Naseem. Meanwhile, the court adjourned the hearing for today (Thursday).
     
  8. ghazi52

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    Gen Bajwa to stay on as COAS for 6 more months: SC
    Naveed Siddiqui | Haseeb Bhatti

    November 28, 2019


    [​IMG]

    Army Chief Gen Qamar Javed Bajwa was previously due to retire at midnight.
    The Supreme Court on Thursday in its short order announced that Gen Qamar Javed Bajwa will remain the Chief of Army Staff (COAS) for another six months, during which the parliament will legislate on the extension/reappointment of an Army chief.

    A three-member bench — comprising Chief Justice of Pakistan (CJP) Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah — announced the much-anticipated verdict after being assured by the government that parliament will pass legislation within six months.

    According to the short order, the federal government "has presented this court with a recent summary approved by the president on the advice of the prime minister along with a notification dated 28.11.2019 which shows that General Qamar Javed Bajwa has been appointed as COAS under Article 243(4)(b) of the Constitution with effect from 28.11.2019".

    "The current appointment of General Qamar Javed Bajwa as COAS shall be subject to the said legislation and shall continue for a period of six months from today, whereafter the new legislation shall determine his tenure and other terms and conditions of service," read the court order.

    The verdict was announced around 3:45pm, prior to which the court had asked the government to submit the following:

    • an undertaking that the parliament will pass legislation in this regard within six months
    • an amended notification
    The amendments to the notification included the elimination of:

    • the mention of the Supreme Court
    • duration of the Army chief's tenure
    • the description of Army chief's salary and incentives
    The top court's ruling comes in the nick of time as Gen Bajwa was set to retire at midnight. Prime Minister Imran Khan had extended Bajwa's tenure through a notification in August, but the top court suspended it on November 26 due to irregularities in the manner of extension.


    'Attorney general failed to point to any existing law'

    The court, while pronouncing the decision today, said that the government has been given six months to legislate on the duration of service of an Army chief.

    It said that Attorney General Anwar Mansoor Khan has "categorically assured the Court" that the federal government "shall initiate the process to carry out the necessary legislation in this regard and seeks a period of six months for getting the needful done".

    "We, while exercising judicial restraint, find it appropriate to leave the matter to the Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament and to clarify the scope of Article 243 of the Constitution in this regard," read the court's short order.

    The order observed that the matter of the Army chief's reappointment or extension had been challenged before the court. It also observed that in the three days of proceedings that followed, the government kept changing its stance, interchangeably "referring to it as reappointment, limiting of retirement or extension of tenure".

    The SC observed that the government had been relying on Article 243(4)(b) of the 1973 Constitution and Regulation 255 of the Army Regulations (Rules), 1998. The court observed that when it asked questions pertaining to the Army chief's appointment, duration of service and extension, the attorney general was unable to refer to any existing law.

    The court reviewed the laws contained within Article 243 of the Constitution while deciding on the matter. "The court has thoroughly examined Article 243(4)(b)," said Chief Justice Khosa.

    The short order noted that according to Article 243, the authority to appoint an Army chief lies with the president. However, there is no duration of appointment specified in the Article.

    (The legality) of Gen Bajwa's appointment will rest on the government's legislation, said the court, observing that prior to this occasion, the appointments had been made as per the existing practices.

    "The learned Attorney-General has taken pains to explain that the answers to these questions are based on practice being followed in the Pakistan Army but the said practice has not been codified under the law," said the court order.

    'Put your house in order'
    Before adjourning the hearing at 11:30am, the chief justice told the government's court representative Farogh Naseem that the government should submit a written statement to ensure that the parliament will legislate on the matter within six months.

    "If legislation is not done within six months, the appointment will become illegal," he warned.

    The chief justice observed that there was "ambiguity in the Army Act".

    "Parliament has to remove that ambiguity," Justice Shah said and added: "There is no better forum than the parliament to fix the system."

    Justice Miankhel said that it should also be clarified whether in the future the tenure would be extended or if there will be a reappointment.

    "The legal complications that we are pointing out will cause you difficulties but do not consider this embarrassing," the chief justice said.

    Justice Khosa also said to make sure that the court's mention is removed from the summary and that the summary should also make no mention of the duration of the extension.

    "The parts about salary and incentives should also be removed from the summary," he said. "We want all of this to be part of the record."

    Addressing AG Khan, the top judge remarked: "Put your house in order."


    Notifications of previous Army chiefs

    At the outset of the hearing at 9:30am, the bench directed AG Khan to submit the notification issued for former army chief retired Gen Ashfaq Pervez Kayani's extension as well as that of retired Gen Raheel Sharif's retirement to the court.

    It is pertinent to mention that over the past two decades, Gen Raheel Sharif is the only Army chief to have retired on time. Gen Kayani's tenure was extended for another three years by the PPP-led government in 2010. Interestingly, the service extension given to Kayani was also challenged in the Islamabad High Court in 2012. However, it was dismissed by the bench as "non-maintainable" because Article 199 (3) of the Constitution barred the high court from hearing a case against persons subject to the Pakistan Army Act (PAA).

    "Under what section was retired Gen Kayani granted an extension?" the chief justice asked during today's hearing. "We want to see what pension and perks Gen Kayani got after retirement."

    Referring to the retirement of Army generals, Justice Khosa said: "If an Army general never retires, then under what rule did Raheel Sharif retire?"

    "You said that generals never retire; if they don't retire, then they wouldn't be entitled to pension either," he observed. The attorney general said that he wanted to assist the court on the matter.

    Justice Khosa said that the court will examine the grounds on which retired Gen Kayani was granted an extension and adjourned the hearing for 15 minutes.

    Meanwhile, the Pakistan Bar Council restored the license of Farogh Naseem, who had stepped down as law minister to represent Gen Bajwa. The CJP had told him yesterday that the court did not want to waste time on a side issue and did not want to let the institution of the Army suffer. He had asked Naseem to settle the licence issue or come with an associate if he wanted to argue on behalf of the Army chief.


    CJP irked over court's mention in draft notification

    After the hearing resumed, the AG submitted the summary of the draft notification for Gen Bajwa's extension prepared by the government yesterday. Following the court's adjournment on Wednesday, an emergency meeting was called at Prime Minister House in the evening to debate the government's strategy for today's hearing. The meeting was attended by Gen Bajwa himself, along with Prime Minister Imran and several ministers.

    Upon examining the summary, the CJP berated the attorney general over the mention of the Supreme Court's proceedings in the draft notification.

    "Bear your own burden, why do you use our name?" Justice Khosa asked. "Do your own work, why do you drag us in the middle?"

    He directed the attorney general to eliminate the mention of the court from the summary, saying: "The court's name has been used so we cannot even point out what's wrong."

    He raised questions over the appointment of the Army chief, noting that the post was already occupied by Gen Bajwa.

    "How can an appointment be made on a position that is already occupied?" the chief justice asked.

    It seems like this time a lot of thought has been put into drafting the notification, the chief justice remarked. "Take out the part about the court's advice," Justice Khosa directed the attorney general. "If the president seeks our advice, that is a different matter."

    Referring to the Army chief's participation in yesterday's meeting, Justice Khosa said: "It is embarrassing that the Army chief has to keep an eye on summaries instead of the country's defence."


    Loophole in laws

    Justice Shah noted once again that the law does not mention that the duration of the tenure is three years.

    The chief justice noted that the summary had mentioned that the Army chief's tenure will be three years. He said that Article 243 does not mention the three-year duration.

    "If they find an extraordinary general tomorrow, will they grant him an extension of 30 years?" he remarked and stressed that there should be a clear system that everyone is aware of. He said that the three-year appointment will "become an example".

    "The government may want to appoint the next Army chief for one year," he commented.

    The chief justice regretted that no one had examined the law while extensions were being granted all these years.

    "There is no check on the activities that are going on in cantonment or under which law an action is being taken," he said.

    "Now a constitutional institution is examining this matter."

    He said that the process of appointment on a constitutional post should be clear and asked AG Khan how long it would take for the government to draft laws in this regard. The attorney general told the bench that the government will require three months, adding that a separate law will be drafted in relation to the Army chief.

    Justice Shah, in his remarks, said that yesterday the bench had said that generals retire but the attorney general had insisted that they don't.

    "The summary neither mentions the Army chief's salary nor the perks he is receiving," Justice Shah pointed out. "The attorney general too must have read the laws regarding the Army for the first time."

    "We are not telling you to pass legislation straight away," Justice Khosa said. "A law that has not been drafted in 72 years cannot be made in a hurry."

    He added that the government had "reverted to the Constitution for the first time".

    "When a decision is taken in accordance with the Constitution, our hands are tied," the CJP said.

    "We were labelled as agents of India and the CIA when we examined the Army Act yesterday," the chief justice regretted. AG Khan told him that India "took a lot of advantage" of yesterday's arguments.

    "It is our right to ask questions," the CJP declared. The attorney general lamented that "social media was not under anyone's control".

    Justice Shah asked the AG to "suggest how to fix laws regarding the Army".


    Govt fails to satisfy court

    On Wednesday, the chief justice before adjourning the hearing, said that there were three points which the court will consider:

    • the law
    • the procedure involved
    • the grounds for granting the Army chief an extension
    He had said that the first two issues are very important and based on those, the court will announce its decision. Gen Bajwa will be able to continue his service if the Supreme Court decides the case in his favour before November 29.

    During yesterday's hearing, the bench was irked by the fact that after Tuesday’s cabinet meeting, Prime Minister Imran Khan submitted a summary to President Arif Alvi for approval to "reappoint" the Army chief on his retirement and the new appointment was made under Article 243(4) of the Constitution, but the notification later issued pertains to the "grant of extension" to the COAS for another term of three years.

    The attorney general chalked the gaffe up to "clerical errors" by the ministry.

    "No one even bothered to read what they are issuing," Justice Khosa observed, regretting the way the law ministry dealt with the issue.

    "Please settle the matter by Thursday because you have only one day or the time will be over and the court will decide in accordance with the Constitution and the law," the chief justice said, highlighting the need for urgency in view of COAS' fast-approaching retirement. “You have amended Regulation 255 of the Army rules in Tuesday’s cabinet meeting when it does not deal with the appointment of the Army chief but that of other officers,” he observed.

    Recalling that several generals in the past had granted themselves extension, the court observed that it was necessary to settle the service matters of the Army chief for all times to come.

    “Personalities don’t matter to us since it is a court of law,” the CJP said, explaining that the court would be satisfied if everything was done in a legal manner. To understand the scheme of the service structure, the court also asked the AG to read one by one the entire provisions of the Pakistan Army Act (PAA) 1952 as well as the Army rules and regulations.

    Suspension of notification

    In an unanticipated development on Tuesday, CJP Khosa had suspended the federal government's notification of Gen Bajwa's extension and issued notices to the Army chief, defence ministry and the federal government.

    The Supreme Court said the AG could not refer to any provision in any legal instrument regarding extension in service of the Army chief upon completion of his first term for his re-appointment.
     
  9. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    Law ministry notifies appointment of Justice Gulzar Ahmed as new CJP
    Inamullah Khattak
    December 04, 2019


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    Justice Gulzar Ahmed will take oath of office as Chief Justice of Pakistan on December 21. — PID/File
    The law ministry on Wednesday notified the appointment of Justice Gulzar Ahmed as the new Chief Justice of Pakistan.

    Justice Gulzar will take charge as the country's chief justice on December 21, a day after the retirement of Justice Asif Saeed Khosa.

    The appointment was approved by President Arif Alvi.

    Justice Ahmed was born on February 2, 1957, in Karachi to the family of Noor Muhammad, a distinguished lawyer. His elementary schooling was from the city's Gulistan School, according to the Supreme Court website. He then went on to earn a Bachelor of Arts degree from Government National College, Karachi after which he obtained his law degree from S.M. Law College, Karachi.

    He enrolled as an advocate on January 18, 1986, and joined the High Court on April 4, 1988. Subsequently, he became an advocate of the Supreme Court on September 15, 2001.

    Justice Ahmed was elected honorary secretary of the Sindh High Court Bar Association in Karachi for the year 1999-2000.

    Throughout his legal practice, he mostly remained on the civil-corporate side, serving as the legal advisor to numerous multinational and local companies, banks and financial institutions.
     
  10. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    Judge video scandal case: IHC mandated to announce its decision, says SC


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    ISLAMABAD: The Supreme Court on Tuesday disposed of former prime minister Muhammad Nawaz Sharif’s petition, seeking review of its August 23 verdict in a video scandal case involving former accountability court judge Arshad Malik.

    A three-member bench of the apex court, headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Sardar Tariq Masood and Justice Syed Mansoor Ali Shah, heard the review petition filed by Advocate Khawaja Harris on behalf of Nawaz Sharif.

    Chief Justice Asif Saeed Khosa observed that the apex court’s remarks will not influence proceedings of the video scandal case currently being heard by the Islamabad High Court (IHC). He said the earlier judgment stated that the high court was empowered to make its own decision without being influenced by the apex court’s verdict. He observed that Nawaz Sharif’s counsel Khawaja Haris’ arguments were repetitive, as the Supreme Court had already debated and decided on them in the August 23 verdict.

    Justice Khosa further remarked that an impression was being created that the IHC’s powers were restricted. “This happens when the judgment is not thoroughly read,” he added. The chief justice said the IHC was mandated to announce its decision in the video scandal case.
     
  11. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    Prime Minister Imran Khan present at the ceremony as Justice Gulzar Ahmed takes oath as 27th Chief Justice of Pakistan..


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  12. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    SC directs to verify PIA employees' degrees



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    December 31, 2019


    Supreme Court (SC) on Tuesday has directed to verify the degrees of employees working in Pakistan International Airlines (PIA).

    During the hearing, the plaintiff claimed that the officials have received their academic degrees without even going to the private university in Azad Kashmir.

    Responding to the arguments, the court remarked apparently, it looks like that the degrees have been awarded through some illegal process.

    Subsequently, the apex court while ordering to check the degrees has adjourned the hearing for one month.

    Earlier, PIA had sacked 50 cabin crew members and three pilots for holding fake degrees. The spokesperson of the airlines said that the action was taken on the instructions of the Supreme Court.

    An interim report was submitted to the bench by the Civil Aviation Authority (CAA).

    The top court had also directed the authorities concerned to complete the process of degree verification and submit the final report on the matter
     
  13. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    Illegal deals done at airports, nobody to stop them: Justice Gulzar


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    KARACHI: Chief Justice of Pakistan Justice Gulzar Ahmed on Friday reprimanded the Additional Director General Civil Aviation Authority Tanveer Ashraf over misbehaviour with passengers and insufficient facilities being provided at the airports. The CJP remarked that his job was not only to take benefits and salary, adding that foreign currency, drugs and other smuggled items were being transported from the airports. He said illegal deals were being done at airports but nobody was there to stop them and all the airports had become dangerous places.

    The Supreme Court took an exception to lack of regulatory control of the Civil Aviation Authority at airports and directed director general CAA to submit details as to what facilities as well as compensation were provided to passengers in case of cancellation or delayed flights by the airlines.

    Hearing a suo moto case with regard to inconvenience to passengers in baggage handling at airports and delayed and cancellation of flights, the SC’s three-member bench, headed by Chief Justice Gulzar Ahmed, directed theCivil Aviation Authority to file comments on action taken against airlines for delayed or cancelled flights at airports.

    The court took notice over reports of drugs and foreign currency smuggling at airports and inquired from the CAA officer as to why video recordings of close circuit cameras were not available after such incidents.

    The court observed that an organised racket was operating at airports, which used to remove the close circuit camera recordings to hush up the smuggling of foreign currency, narcotics cases and make deal with the culprits. The court observed that airports had become dangerous places where dealing of foreign currencies and drug smuggling have been taken place and the future of the country was decided.

    The court directed the CAA to submit reports as to how many incidents on airports have been reported with regard to complaints of passengers to the authority and what action had been taken on such complaints. The court directed the director general CAA, along with additional DG, to appear before the court on the next date of hearing.

    The court took notice over non-appearance of director general CAA before the court and inquired from the CAA’s director as to why DG CAA or concerned officer having conversant with court directives did not appear before the court. The CAA’s director submitted that the DG was not nominated yet and the authority was being looked after by the secretary aviation.

    Justice Gulzar inquired from the CAA officer as to what facilities were being provided to the passengers in case of delay or cancellation of flights and whether they were compensated and properly accommodated by the airlines. The court observed that passengers used to sit on the floor and not being properly looked after at the airports in case of cancellation or hour-long delays in flights. The court observed that people used to travel through aircraft to save their time and their purpose fail when flights are delayed or cancelled.

    The CAA officer submitted that accommodation facilities had been provided at the New Islamabad Airport whereas necessary instructions have been issued to the airport managers for providing facilities to the passengers.

    The court questioned the structure of the New Islamabad Airport and observed that despite the government paid 10 times more cost of the airport, it could collapse any day.

    The court observed that the CAA and other agencies working at airports have to facilitate the passengers and directed the acting DG CAA to appear before the court after the break.

    Acting DG CAA Tanvir Ashraf Bhatti later on appeared before the court and submitted that he was not aware about the notice of the court and sought time to file details of information with regard to facilities being provided to the passengers in case of delay or cancellation of flights. He submitted that some flights were delayed due to harsh weather conditions but directions of the court had been complied with.

    The court took an exception to non-compliance of the court directives and observed that the same would amount to contempt of court and concerned officer could be sent home for disobeying the court order.

    The court directed the CAA to file report as what action had been taken against officials of airlines for delayed and cancelled flights and submit report.

    The court directed the Civil Aviation Authority to submit details with regard to maintenance of the airports as well as operations of other agencies, including Customs, Airport Security Force and Federal Investigation Agency to maintain the security of airports.
     
  14. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    Supreme Court directs govt to explain how lawyer's detention is related to national security
    January 13, 2020


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    On Saturday, the federal government had challenged the Lahore High Court Rawalpindi bench ruling on Inamur Rahim's arrest in the Supreme Court. — AFP/File
    The Supreme Court on Monday directed the federal government to submit a written reply and explain how the case regarding the detention of Advocate Inamur Rahim — a retired colonel who was picked up from his home in Rawalpindi on Dec 17, 2019 — is connected to national security.

    Taking up the federal government's petition against the Lahore High Court order for Rahim's release, the apex court asked the government's counsel to explain the national security issue his case relates to, on the basis of which, it should be heard inside the judges' chambers.

    Earlier, the court had directed the federal government to present the detained advocate in court following which Attorney General of Pakistan Anwar Masood Khan requested that the court review the order to present Rahim and also requested that the case be heard inside the judges' chambers.

    "We have no objections but show us the matter on the basis of which we should do this. Show us the documents, we will not make them public," said Justice Mushir Alam, adding that they wanted to go through the documents to understand which national security issue this case was related to.

    At the outset of today's proceedings, the top court had rejected the government's request of in-camera proceedings for the case. AG Khan had argued that the matter in question was related to national security and therefore mandated in-camera proceedings.

    Resuming proceedings after a break, the apex court directed the federal government to submit a written reply and ordered that the detained lawyer be presented in court by tomorrow.

    "We all know what matter of national security it is. Rahim had presented copies of the Army Act in court," alleged Supreme Court Bar Association Qalbe Hussain while addressing the judges.

    Justice Alam said that the LHC had issued a short order and it seemed that a detailed verdict had not yet been issued, adding that the government should wait for the detailed verdict.

    In response, the attorney general asked for the short order to be suspended while the SC heard this petition, vowing to present the detained lawyer in court. Later, the attorney general presented a report regarding Rahim's arrest in a sealed envelope.

    "Whatever is written in this report has been published. Don't dramatise things," responded Justice Alam.

    The proceedings were adjourned till Tuesday.

    Rahim's detention 'illegal'
    On Thursday, the LHC's Rawalpindi bench had declared the detention of Rahim to be illegal and ordered military authorities to release him immediately.

    Following this, the federal government on Saturday approached the Supreme Court to challenge the ruling.

    The defence and interior secretaries in an appeal filed through Additional Attorney General Sajid Ilyas Bhatti had sought suspension of the LHC's release order till the present case was decided by the apex court.

    Rahim – the advocate for missing persons
    On Dec 17, 2019, Rahim's son Hasnain Inam said eight to 10 people in black uniforms with a Pakistani flag stitched on their arms forced their way into their house located on Rawalpindi's Adiala Road.

    He added that he was overpowered after being pushed away by two people, and one person put his hand over his mouth. "The men then searched every room and forced [my father] into a pick-up truck at gunpoint and drove away," he said.

    On Jan 2, the defence ministry informed the LHC that Rahim was in the custody of its subordinate agency and that he was being probed for allegedly violating the Official Secret Act after the court sought a reply on a petition filed by the defence and interior ministries.

    However, a representative for the defence ministry did not specify exactly what violations had been committed by the detained lawyer.

    Rahim has previously filed numerous petitions for the recovery of missing persons and against administrative orders of the army or armed forces. Moreover, he was the counsel in petitions filed against high-profile court-martial proceedings about the GHQ attack and conviction of naval officers among others.
     
  15. ghazi52

    ghazi52 PDF THINK TANK: ANALYST

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    SC rejects PIA CEO’s appeal to continue working, questions appointment of 10 PAF officers
    Haseeb Bhatti
    January 21, 2020


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    PIA CEO Arshad Malik had filed a petition against SHC directions restraining him from working.

    The Supreme Court rejected on Tuesday Air Marshal Arshad Malik’s appeal to remain the Chief Executive Officer (CEO) of Pakistan International Airlines (PIA) while raising suspicions on increased fares and appointment of ten officers of the Pakistan Air Force (PAF) in the national carrier.

    The three-member bench, headed by Chief Justice of Pakistan Gulzar Ahmed, called into question the appointments of four air vice marshals, two air commodores, three wing commanders and one flight lieutenant in the national airline.

    "How can Arshad Malik make such appointments when he himself is appointed on deputation?" questioned the top judge.

    The bench also noted that another case pertaining to the PIA chief's appointment was already being heard in the Supreme Court.

    Malik had filed a petition in the Supreme Court, requesting for a stay order against a Sindh High Court order, which restrained him from working as PIA's CEO.

    During the hearing today, Justice Sajjad Ali Shah, who was part of the bench hearing the case, said: "We want to see if the advertisement of PIA CEO's post was designed with Arshad Malik in mind as he does not have the pre-requisite qualification, education or the expertise required for the job."

    Justice Shah also raised concerns over reports that a bid worth Rs70 million was awarded to an air commodore and said that the "fares of PIA had increased by 100 per cent" since Malik's appointment.

    "You are running the national airline's affairs like those of a family business […] How can you manage PIA when you failed Shaheen Airways miserably?" he remarked.

    The Supreme Court rejected Malik's plea and handed the reins of PIA to the board of governors. The bench summoned the record of the case which is currently being heard in the SHC and adjourned the hearing until two weeks.


    Malik's appointment challenged in SHC

    A petition challenging Malik's appointment was filed in the Sindh High Court by Safdar Anjum, the general secretary of one of the associations of PIA senior staff/employee. Anjum insisted that he was filing the petition for the enforcement of fundamental rights of all members of the association and the general public since the PIA was a national asset.

    Impleading the PIA CEO, the federation through principal secretary to the prime minister, secretaries of the cabinet and aviation divisions, PIA and others as respondents, the petitioner stated that Air Marshal Malik was a senior serving officer of the PAF whose appointment as the PIA chief was made in utter disregard of rules laid down by the apex court in its August 3, 2018 judgement against the appointment of the then CEO.

    He maintained that the appointment was also made in violation of the Public Sector Companies (Corporate Governance) Rules of 2013 and Public Sector Companies (Appointment of Chief Executive) Guidelines of 2015 as both the laws were applicable to the PIA.

    The lawyer for the petitioner told the bench that the main respondent was holding a basic BSc degree and seemed to have acquired qualifications in war studies.

    He added that clearly Malik lacked any qualifications, experience in the commercial airline industry or operating a commercial fleet under the civil aviation rules and international treaties.