SC additional registrar removed over serious lapse

ISLAMABAD: The Supreme Court on Tuesday removed the Additional Registrar (Judicial) Nazar Abbas on account of serious lapse and directed the Registrar to look into the matter.

The issue involves mismanagement in fixation of cases. CPLA Nos 836-K to 887-K, 951-K, 1056-K of 2020 and 741-K to 743-K of 2021 and 165-K of 2022 are bunch of cases where the vires of Custom Act 1969 were challenged.

These cases were required to be fixed before the Constitutional Bench but were mistakenly fixed before the Regular Bench of the Supreme Court, consequently, it led to wastage of time, resources of the institution as well as the parties, says a press release issued here by Public Relations Department of the apex court.

It was stated that the mentioned cases were fixed before a Regular Bench of three judges which were heard on 13th of January, 2025, where in addition to merit of the case, the constitutionality of sub section 2 of section 11A of the Customs Act were challenged.

Based on this, the jurisdiction of the Bench was contested and subsequently, the cases were adjourned to 16th of January, 2025.

Realising the serious lapse on their part, the Judicial Branch through a note approached the Regular Committee under section 2(1) of the Supreme Court (Practice and Procedure) Act 2023.

Keeping in view the serious nature of lapse the committee convened on 17th of January, 2025, under the chairmanship of the Chief Justice of Pakistan. The committee noted that Clause 3 of Article 191A of the Constitution read with Clause 5 of Article 191A of the Constitution expressly vests such jurisdiction in the Constitutional Bench and none other.

The committee, therefore, withdrew these cases from the Regular Bench and directed that the same should be placed before the Constitutional Bench Committee constituted under Article 191A of the Constitution for re-fixation.

It was further stated that the Regular Committee also directed that in future all cases falling under Article 191A of the Constitution shall be placed before the Constitutional Bench Committee constituted under Article 191A of the Constitution irrespective of any order passed by a Regular Bench.

The Regular Committee directed the Supreme Court Registrar to expedite the process of scrutiny of all pending cases as well as due diligence of the case daily instituted in the apex court to avoid repetition of such lapses.

It was stated that the Constitutional Bench Committee also met on 17th of January, 2025, and decided to fix all cases challenging the 26th Constitutional Amendment and vires of laws. Therefore, a Constitutional Bench comprising eight judges will hear these petitions on 27th of January, 2025.

Meanwhile, the Regular Bench consisting of Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi heard on Tuesday the contempt proceeding initiated against the Additional Registrar (Judicial). However, on account of sick leave of the Additional Registrar (Judicial), the Registrar Supreme Court, Muhammad Salim Khan, appeared before the Bench.

He pleaded that the fixation of the cases were on account of mistake which was being examined. He also contended that delisting of the cases before this Bench was not based on malicious intent of the Additional Registrar.

Instead, it was a bona fide act taken in compliance with the direction of the Regular Committee.

“The Supreme Court of Pakistan issued removal order of the Additional Registrar (Judicial) and the Chief Justice of Pakistan directed the Registrar Supreme Court to dedicate more resources for early completion of the scrutiny of the pending cases in order to avoid inconvenience to the litigants and legal community,” the press release concluded.

Earlier, during the contempt case hearing against Additional Registrar (Judicial), the Supreme Court appointed two amici curiae (friends of court) for assistance on question of jurisdiction of a court hearing contempt proceedings and also issued notice to the Attorney General for Pakistan.

The court appointed former Supreme Court Bar Association (SCBA) presidents Hamid Khan and Munir A Malik as the amici curiae for its assistance.

During the course of hearing Justice Mansoor remarked that if the three-member committee established under the Supreme Court (Practice and Procedure) Act withdraws the cases pending in the courts, then the independence of the judiciary ends.

“Where it is felt that the decision may be against the government, then the case is withdrawn from the bench and this is not correct”, Justice Mansoor further remarked.

During the hearing when Registrar Supreme Court Salim Khan appeared before the court, the court inquired as to why has the case had not been fixed for hearing in the same bench despite the issuance of the court order.

The Registrar replied that the case was related to the Constitutional Bench, and it was mistakenly fixed in the regular bench. At this Justice Aqeel Abbasi questioned if it was a mistake, it had been going on for a long time, adding that how was it realised now.

“Sorry to say the mistake was only to the extent of including me in this bench, because I heard this case in the Sindh High Court,” Justice Aqeel told the Registrar.

Justice Mansoor asked the Registrar as to how the meeting of the Supreme Court (Practice and Procedure) Committee was held in this regard -- if the committee itself convened the meeting or he requested it.

The Registrar submitted that they had written a note to the committee. Justice Mansoor then inquired why the note was written when there was a court order, adding that the order was very clear as to which bench the case was to be assigned.

On a court query, the Registrar presented the note to the court.

Justice Mansoor remarked that the mistake had not been realised in the note. “In it you are writing that an order has been issued on January 16; you are asking to create a new bench based on this order. Yes, in the order we had clearly mentioned that which bench the case would hear the matter,” Justice Mansoor Ali Shah told the Register.

The Registrar however, submitted that the Supreme Court (Practice and Procedure) Committee had referred the case to the Constitutional Bench Committee which had also fixed on January 27 for hearing petitions, challenging the 26th Constitutional Amendment.

“This case may have been missed by you by mistake but when a case reached to a regular bench then the committee’s job is over,” Justice Mansoor remarked, adding that if the committee withdraws the cases being heard by a regular bench then there would be no freedom of judiciary.

“Where it is felt that the decision may be against the government, then the case is withdrawn from the bench”, Justice Shah remarked, adding that this case came to the regular bench.

“This case was left by you, and came to our court. After all Allah has designed a plan,” Justice Mansoor added.

Justice Aqeel observed that at least the petitions, challenging the 26th Constitutional Amendment had been fixed for haring on January 27 despite the fact that earlier requests were made for fixing it, but it was not fixed for hearing.

He questioned as to which constitutional amendment was to be reviewed in the tax case which had been withdrawn. The court then immediately summoned the attorney general for assistance.

Justice Mansoor asked the Registrar under what authority the Supreme Court (Practice and Procedure) Committee withdraws a case pending before a regular bench.

The Registrar submitted that if the committee can decide the case, it can also withdraw it, on which Justice Mansoor replied that the court would tell as to whether it could withdraw the case from a regular bench or not

Justice Mansoor clarified that two meetings of the committee were held and he was invited to the meeting of the Committee on Regular Benches, but replied that since he had issued a court order, so it was not appropriate for him to sit on the committee.

Then on January 17th meeting of judges committee was held for formation of benches regarding Article 191 A of the Constitution and these two meeting were held on the same day when the case was in the judicial bench, he added.

Justice Aqeel observed that the work of the Supreme Court (Practice and Procedure) Committee is before the fixing of any case and when the case is taken up, job of committee is over.

The apex court judge further observed that here it was said that the matter had gone to the researcher.

The Registrar explained that the researcher was being mentioned on daily basis, adding that there it was not a single person, but a whole cell of researchers, and there is a research cell in the Supreme Court and everyone knows about it.

“But we wanted to hear the position of the Additional Registrar (Judicial) who has done all this and we don’t know being an administrative officer why you are being brought into this matter,” Justice Mansoor told the Registrar.

The Registrar submitted that the additional registrar (judicial) was on leave due to illness, adding that when he would return he would also answer the court.

Justice Aqeel Abbasi said: “We do not even know what will be the future of the present bench,” adding that today they were hearing the case, maybe this bench would not exist tomorrow.

“If we ask any sharp question, maybe this bench will also be abolished,” Justice Aqeel remarked.

Meanwhile, Justice Mansoor observed that the court would review the orders of the committee presented by the Registrar.

During the hearing, Barrister Salahuddin submitted before the court that the committee or the Research Officer could just write a note as to which Bench the case should go to.

He contended that whether the case was to be heard by a Constitutional Bench or not, it was prerogative of the apex court to determine, adding that in the Sindh High Court, regular and constitutional benches were sending cases to each other every day.

He submitted that it was necessary to review the orders passed by the Supreme Court (Pracrtice and Procedure) Committee, adding that one option was that the matter related to the powers of formation of benches should be fixed before a full court of the Supreme Court.

Justice Mansoor inquired whether a new bench could be formed under a court order to which the counsel said that the court had been sending cases to the chief justice or the committee to complete the administrative procedure in the past.

“Whether it is the chief justice or the judicial committee, court’s order is binding on all,” Salahuddin submitted.

The court asked the counsel as to whether a case could be referred to the Full Court by judicial order. The counsel replied that Article 191A of the Constitution does not limit the powers of the Full Court, adding that the apex court can refer the case to the Full Court under the 26th amendment.

“In the past when a court sent a file through judicial order for constitution of a larger bench, it was implemented in letter and spirit,” he submitted.

Justice Aqeel Abbasi inquired that at present the case related to the powers of formation of benches was not scheduled for hearing before them, so could they issue such a judicial order during the hearing of the contempt of court case?

Shahid Jameel, counsel for one of the parties in the main case (tax case), came to the rostrum and submitted that the court could use the power of complete justice and send the matter to the full court.

Justice Mansoor remarked that the contempt of court notice was also issued by the three-member bench and asked should this case not be sent back to the three-member bench first.

He further remarked that Justice Ayesha A Malik had heard this case, adding that the contemnor had alleged that it was because there were orders from the committee.

At this, Shahid Jameel submitted that that the contempt was largely related to Article 187 of the Constitution, while Barrister Salahuddin told the court that he wanted to cite some judgements passed by the apex court whereby full court was constituted in view of the judicial order passed by a court.

Salahuddin submitted that examples of former chief justices Iftikhar Muhammad Chaudhry and Qazi Faez Isa’s citation were there wherein full court was constituted.

Additional Attorney General Aamir Rehman told the court that he would assist the court on the point that the decisions of the committee in the contempt of court case could be reviewed or not.

Later, the court adjourned the hearing for today (Wednesday) after appointing amici curiae for its assistance.

Meanwhile, three judges of the Supreme Court -- Justice Mansoor Ali Shah, Justice Ayesha A Malik and Justice Aqeel Abbasi -- have written to Chief Justice of Pakistan Yahya Afridi and head of the Constitution Bench Justice Amin-ud-Din Khan about the issue regarding the formation of benches.

In the joint letter, they said it was surprising that despite the judicial order, the cases had not been fixed before the bench concerned on January 20.

These cases were fixed for hearing on January 13 before a bench headed by Justice Mansoor Ali Shah, and consisted of Justice Ayesha A Malik and Justice Irfan Saadat. The office had been instructed to schedule the case before the bench on January 20 at one o’clock, but they were not even informed that the cases had not been fixed.

Justice Mansoor said that in the presence of the court order, he did not need to attend the meeting of the Supreme Court (Practice and Procedure) Committee, while the committee should not have looked into this matter. Rather, the office concerned should have fixed the case for hearing.

The letter stated that the committee could not go against the judicial order and was bound to fix the case on January 20.

The letter further stated that the failure of the office to comply with a judicial order of the court not only undermines the institution’s integrity but is in defiance of the settled law by this court, which clearly states that administrative orders cannot take away the jurisdiction of the bench taking cognizance of a matter.

It raises serious concerns about the independence of the benches and such non-compliance constitutes contempt of court and erodes public confidence and trust in the judiciary, damaging its reputation as a fair and impartial arbiter of justice, said the letter.

The three judges stated that in order to maintain independence, transparency, comity of judges, and smooth functioning of the court, the judicial order passed by the court dated January 16, 2025 be complied with and the office may be directed to fix the aforementioned case as per the judicial order and the contents of this letter.

Meanwhile, the Supreme Court de-listed the cases fixed for hearing before the benches today (Wednesday) January 22, including the case related to contempt case against Additional Registrar (Judicial).

Accordingly, the two-member bench headed by Justice Mansoor and comprising Justice Aqeel would not hear today (Wednesday) case against the Additional Registrar (Judicial).

Cases fixed before Benches 1, 2, 4 have been de-listed including supplementary cause list No 20.