Petition against the wife of CJP fixed for hearing

Islamabad

IHC registrar office has fixed the petition of Moulvi Iqbal Haider for May 26 where he has challenged extension to the tenure of Justice Mrs Ashraf Jehan wife of Chief Justice of Pakistan (CJP) Justice Anwar Zaheer Jamali as additional judge Sindh High Court (SHC) by saying that she remained no more an SHC judge after taking oath as an Federal Shariat Court (FSC) judge in December 2013.

Justice Aamir Farooq of the Islamabad High Court (IHC) would hear this matter as an objection case next Thursday as registrar office had raised objections over the petitioner’s ‘locus stand I’.

In his petition, the petitioner said that the oath of a high court judge is different from the oath of a FSC judge. Under Supreme Court observations in Al-Jihad Trust case, a high court judge after taking oath of an FSC judge do not remain a high court judge and therefore the extension granted to Justice Mrs Ashraf Jehan as additional judge SHC was illegal as she had already became an FSC judge. Moreover her transfer from SHC to FSC was also illegal, petitioner further contended.

The petitioner has been seeking from IHC to declare the extension and later confirmation of Justice Mrs Ashraf as additional SHC judge as illegal.

The petitioner has nominated federation of Pakistan through principal secretary President house, Justice Mrs Ashraf Jehan, secretary ministry of law, justice and human rights division, secretary judicial commission of Pakistan and secretary parliamentary committee senate secretariat as respondents.

The petitioner said that the wife of incumbent CJP, Justice Mrs Ashraf Jehan was serving as district session judge in Sindh and she was at serial number 12 on the seniority list. On August 30, 2013 Justice Mrs Ashraf was appointed as an additional judge of SHC superseding the three senior female district & session judges. On December 26, 2013 Justice Mrs Ashraf was appointed as an FSC judge by the President of Pakistan without placing her case before secretary ministry of law, secretary judicial commission of Pakistan and secretary parliamentary committee that is necessary under article 175A of the Constitution.

The petitioner said that under the constitution, the oath of Supreme Court and high court judges was same but the oath of FSC judges was different under article 203(C) 7 of the constitution.

On September 1, 2014, President of Pakistan extended one year in the tenure of Justice Mrs Ashraf as additional judge SHC. Whereas, as a matter of fact she was no more an additional judge of SHC because she had become an FSC judge. After taking oath as an FSC judge on December 26, 2013, the previous oath of Justice Mrs Ashraf Jehan as additional judge SHC had gone lapsed, the petitioner said.

The petitioner alleged that this illegality was done under influence. Later President of Pakistan confirmed appointment of Justice Mrs Ashraf Jehan as an SHC judge on August 26, 2015. On October 28, 2015, Justice Mrs Ashraf Jehan was transferred to FSC from SHC and she was appointed FSC judge for two years.

The petitioner cited from the Supreme Court verdict in Al-Jihad Trust case that reads as under; “The Federal Shariat Court is a new court created by the martial law regime. It does not fit in the hierarchy of the courts originally provided under the constitution. It may be pointed out that article 203-GG lays down that subject to articles 203-D and 203-F any decision of the court in exercise of its jurisdiction under this chapter shall be binding on a high court, meaning thereby, that the Federal Shariat Court is not equated with a high court. The appointment of a permanent sitting chief justice of a high court or a sitting permanent judge thereof is in fact a fresh appointment in a different court. Factually, it cannot be treated as a transfer from one high court to another high court or a court equivalent to it. The above fresh appointment in fact impliedly involves removal from office of a chief justice or a judge of a high court, as the case may be, for the period for which he is appointed in the Federal Shariat Court. It may further be observed that once a sitting chief justice of a high court or a permanent judge thereof is appointed in the Federal Shariat Court without his consent, he becomes susceptible under clause (4-B) of article 203-C to actions detrimental to his security of tenure which is guaranteed by the above article 209 of the Constitution”.

The petitioner has prayed to the court to declare that Justice Mrs Ashraf Jehan remained no more an additional judge SHC after she took oath of an FSC judge. Consequently all the other notifications granting extension to her and later confirming her as an SHC judge were illegal. The petitioner has further prayed that the court may also declare that the transfer of Justice Mrs Ashraf Jehan from SHC to FSC was also illegal.