What happened at JCP meeting? [First instalment of transcript of meeting]

Chief Justice Umar Ata Bandial: I am very grateful that the members of this commission have assembled today from faraway places as well as from rain drench places such like Karachi. But first of all I would welcome Justice Sajjad Ali Shah to the commission who has in fact traveled from Peshawar. And started work at Islamabad probably because of this meeting. I am grateful that Mr Qazi has spared time from his vacation and MR Ashtar has gathered the strength to welcome and thank you for joining us from London and all of us were thinking of you and praying for your good health hope you are good health. So, now on let quickly move on the agenda which is to consider the appointment of five judges under Supreme Court bench there are some recommendations by myself as the chairman of this commission which is purpose of the commission to kindly consider. I have already written in the note the reasons for recommending some and by-passing others the paper book that you have received contains some data and the detailed data is available in the larger paper books which unfortunately neither Mr. Qazi nor Mr Ashtar have received because we sent that material through e-mail and through WhatsApp but anyway it’s nice that you are with us any questions that you have we can answer those as they take place so just to complete those formality I purposed the names of Justice Qaiser Rasheed Khan, Chief Justice Peshawar High Court, for the appointment of the Supreme Court justice, Justice Hassan Azhar Rizvi of the Sindh High Court for such appointment. Mr Justice Shafi Siddiqui from the Sindh High Court, Mr Justice Naimat ullah Phulpoto again from the Sindh High Court and Mr Justice Shahid Waheed from the Lahore High Court.

The point about the selection firstly from the different provinces that we have three seats that have been vacated by the judges adorning one of them still adorns the Supreme Court but we have two seats which have bene vacated by Justice Gulzar Ahmed and Mr Justice Maqbool Baqir. Justice Sajjad Ali Shah who is with us, shall be laying down his robes middle of next month so there will be three seats and for that reason there are three proposals, from Peshawar HC Justice Mazhar Alam Khan Miankhel has retired recently and in his place Justice Qaiser Rasheed Khan has been purposed, Justice Shahid Waheed is purposed to fill the seat vacated by Justice Qazi Ameen Ahmed sahib, so this is the ratio but now if you like then I can read through the material that I have already sent or if you like we can start discussing the proposals that I have sent and we can start, Justice Sarmad Jalal Usmani sahib and then move down the table to the other side so in your turn gentlemen, Justice Qazi Faez Isa sahib being the senior puisne judge, who will be speaking after Justice Tariq Masood sahib and Mr Ashtar Ausaf all will be addressing after the law minister as spoken thank you very much. Justice Sarmad Usmani sahib may I request to express your views on the suggestion.

Justice Sarmad Jalal Usmani: Thank you very much honorable Chief Justice and thank you gentlemen for being here my best wished to all of you. Especially to Ashtar Ausaf who is impending the surgery I hope everything goes well and he is able to rejoin us.

Now as far as the Sindh High Court is concerned I can say with the bit of convictions that perhaps I know these honorable judges who have been nominated and those who were being by-passed because I am from that high court, remained judge and the chief justice as well and some of the nominees I have recommended to be on the bench. So, as far as Justice Syed Hassan Azhar Rizvi is concerned, fully endorsed the nominations I know the fact that he is thorough gentlemen and his work is alright, so I would endorse his nomination and so far as Justice Mohammad Shafi Siddiqui is concerned I also think that he is a good judge and he should prove an asset to the bench here but I think there are other judges who are just as good and they have been ignored like senior Justice Phulpoto, now as far Justice Phulpoto is concerned I know that he is good in criminal work but I have read his judgements, his judgements are more or less still type of criminal judgements like. Criminal appeals and bail applications and frankly speaking there is hardly any innovation which one can do in the criminal case because the principals and the law is very well settled and even the law says that how to write criminal judgements is in the CRPC so you can’t really deviate from that so therefore 1 think that perhaps those who are senior to him should be considered like Mr Justice Abbasi and Mr Justice Nadeem Azhar and Nadeem Rizvi and Nadeem Sahab. Now these two gentlemen I think that we should consider them and as far Justice Abbasi is concerned again there is no doubt his integrity it is said that he has done some work but I think he came on the bench he has done other work as well. I can see from his disposal that he has done work but mostly he has done tax work alright but he’s in family he has done rent he has done the bail applications and the criminal appeals also he has done and so there is civil revisions high court appeals so tax cases of course because he was the tax lawyer so he was put on the tax bench and the maximum numbers of disposals regarding his tax matters but that’s no surprise because obviously he always remained the tax lawyer and he is specialized in tax issues.

It is said that perhaps his demeanor towards his fellow judges and towards the bar is perhaps a bit strict and may be he is not very congenial sort of a person to put it that way but I have found him; you and I have been meeting him over the years we have never found any sort of defects in any part of his personality.

He is always been very nice you know as far as I am concerned but I am sure that the honorable Chief Justice must have made an investigation and am sure he is right but believe this whatever has been said about him was due to the fact was bypassed so therefore he was slightly bitter about so see if a person is bypassed for no rhymes nor reasons and obviously he may be slightly bitter. If a person for example is prosecuted for no rhymes nor reason and ultimately it turns out that he has been wrongly prosecuted obviously that person will be bitter so perhaps this I don’t think this maybe a flaw in his character this could probably be a something which and maybe sometimes he expresses what is happening inside of him but otherwise I found him to be alright.

I mean he writes reasonable judgements; he writes good judgement also and so far as Nadeem sahib is concerned his disposal is law I agree with that and perhaps I don’t know whatever the reasons he is not been writing too many judgements but the judgement he writes are up to the mark that I can say so my thinking would be perhaps that we could consider either one of these gentlemen to be pointed rather than been down the line and pointing Mr Phulpoto, so that as far as the Sindh is concerned as far as the gentleman from Peshawar HC is concerned obviously he is the senior most and I am sure that from his work he has done and his judgements I also found up to the mark and I am sure that he is the gentleman and I fully endorse his candidature and similarly I also endorse the candidature of MR Waheed because the other three gentlemen I have seen in the judgements and I think that as far as judgement writing as concerned as far as the quality of the judgements is concerned Justice Waheed is much above them so therefore and otherwise he is a gentleman above board so I would endorse. Thank you very much that is all I have to say.

Justice Sajjad Ali Shah: To some extent, I agree with the view expressed by Justice Sarmad Jalal Usmani sahib but the reasons which the honorable Chief Justice has given for by-passing the three judges from Sindh.

We have yet to hear the honorable Chief Justice so far as these three judges are concerned. Which are under consideration so I personally know them I have worked with them and I have found them excellent gentlemen; they know the law and I think anyone who practices in Sindh would not be able to raise a finger for any of their qualities so I fully support all the three nominees so far as MR Qaiser Rahseed is concerned he is the Chief Justice and the data we have seen and I also fully endorse this though I do not much know about Justice Shahid Waheed but I again rely on the data provided to me and I feel that his nomination is also fine.

Justice Ajaz Al Ahsan: Thank you very much, I welcome Justice Usmani and Justice Sajjad Ali Shah, who joined us for the first time. Mr Tarrar has been here for a while and the representative of Pakistan Bar Council he is a very senior council and he will come to you all. Qazi Sahab, Attorney Journal, Sir I have carefully gone through the recommendations that you have made and the reasons you have recorded for the recommends and not recommending others I have also carefully examined the judgements of all the gentlemen and the work they have done for the past many years since elevations and the judgement which they have sent as their 10 best judgements as far the first recommend is concerned Mr Justice Qaiser Rasheed is concerned he ticks all the boxes according to my information he has immaculate integrity and his competence is not questionable; his temperament as many people could talk to including the ones coming from KP who are the colleagues in the Supreme Court, all endorse the fact that he is a thorough gentleman and has exactly the temperament that judges should have likewise the number of his judgements assured he has done the fair amount of work and he has done work on all sides; there are reported judgements of the criminals side, civil side, constitutional side and would call him an all-rounder which essentially is an requirement that we need in the Supreme Court at this point, so recommend him and I entirely agree with the recommendation of the honorable Chief Justice this is an edition to excellent administration work that he has done and setting up courts in Waziristan and the Fata Area. Now as far as Justice Hassan Raza Rizvi, Justice Shafi Siddiqui and Justice Naimatullah Phulpoto are concerned, I have read their judgements and I would admit that I have no firsthand knowledge of their personality or their temperament but as much as I can gather from whatever the information I have received and I have discussed the information with my colleagues in the Supreme Court as well as the judges of the High Court that have the opportunity of discussing have find that all of three judges that have been recommended again tick all boxes that we need to tick which is the integrity, competence, temperament and capacity. Now as far as Justice Naimatullah Phupoto is concerned, I can understand the preference of the honorable Chief Justice for him for the reason that the chief also has to see as to what is the current requirement of the Supreme Court.

We have thousands of hardcore criminal cases, murder appeals and the rest and right now we have one only one judge who is the specialist and not only practiced in that area but also has rendered remarkable judgements in the High Courts and presently sit with him in the Supreme Court in the bench and I find him fully in tune with what the law has been and should be but incidentally; we have one judge on that score and we desperately need a judge who not only is a workhorse but who is also the specialist in this area and Justice Naimatullah Phulpoto, according to my information and the information that I have received from a number of High Court judges who have been on the bench with him, including Justice Sajjad Ali Shah, verify the fact that he is not only the prolific judgement writer but also has a very keen and very good understanding of criminal law and he could be very good addition to the Supreme Court and so far as the requirement of a judge who specializes in criminal matter is concerned so understanding the concerns of the honorable Chief Justice of Pakistan I fully endorse the view that we need a judge who specializes in criminal law in order to bolster the capacity to quickly deal with criminal matters of which is considerable of the backlog. Finally, Justice Shahid Waheed, I have been his Chief Justice so as the honorable Chief Justice of Pakistan and so as the other Chief Justice from the Lahore high Court and all of them are very clear about his capacity, his integrity and his ability to write very good analytical judgements and quality of the judgements and as Justice Sarmad Jalal Usmani as just said is way above the first three gentlemen who incidentally the first the honorable Chief Justice has been working on the civil side but as has been noted that for the number of years he doesn’t has the reported judgements and whatever judgements have been reported they deal with the routine matters on the other hand, the other gentleman at number two and number three are again judges who have routine judgements and criminal sides and do not in my opinion match up to the level of analysis and the innovations and civil law that Justice Shahid Waheed is capable of doing and additional advantage of elevating Justice Shahid Waheed again that hardcore civil side expertise we do need in the Supreme Court at this point of the time and Justice Shahid Waheed has done a lot of work as the practicing lawyer as the judge of the High Court as well as when he sat in the division benches dealing with hardcore civil matters for which there is the requirement in the Supreme Court plus in my humble opinion Justice Shahid Waheed has the temperament and the capacity that we require in the Supreme Court with the sort of work we have; just one final note that essentially the Chief Justice of Pakistan is the head of the team that he has to feel in order to deal with all the matters, civil, criminal, constitutional which come to the courts and he has very impartially looked at the various merit and de-merits, strengths and weaknesses of all the judges which is evident from the fact that he has made an extra effort not only to call for their best judgements but he has also made effort for ask the judgements of the other judges junior and senior to this particular nominee and has made an assessment which I find myself in entire agreement so I would wholeheartedly endorse all five recommendee that the honorable Chief Justice has placed before this commission thank you very much.

Justice Sardar Tariq Masood: Mr Ashtar, may Allah bless you with the health that you are with us in this condition. Welcome Sajjad Ali Shah that he is our judicial commission member not only he is very lucky but he has been given privilege that he will appoint his successor which he did. Now the recommendation which were given to us these are first of all these are contradictory. On one hand it was said that there would be seniority plus competence and for that purpose from each high court three, four, five or six judges will be judged but we have seen that on the principal of the seniority the Chief Justice of the Peshawar Court was nominated as the judge of Supreme Court, no data whatsoever for the other judges has been provided to us to make a comparative analysis. Presently there are four vacancies for the appointment as the judge of the Supreme Court and according to the Article 175 8 of the Constitution of the Islamic Republic of Pakistan the commission by the majority of the total number can nominate one person for each vacancy to the parliamentary committee for the appointment of the other judges of the Supreme Court, so the Constitution has not given any mandate to this convision for the appointment of a judge of the Supreme Court for the anticipated vacancies which is being done now although in rule 3 one of the commission what anticipated is mentioned what was introduced but rules cannot overrule the Article of the Constitution which is otherwise is quite clear having no ambiguity and the letter dated 20th July 2022 is silent as to who among the judges of the High Court of Sindh has been purposed for anticipated vacancies if this principal is to be followed then of course we all and the other judges of the Supreme Court may be allowed to purpose their successor and they also be nominated and approved for the appointment as the anticipated judges of the Supreme Court. At least my wish is this but can’t say anything about the others. Even otherwise if we approve all the nominees judges then of course the number of the judges in this Supreme Court will be 18 which is against the Constitution although under Section 177 of the Constitution their eligibility for the appointment of the judge as the judge of the Supreme Court is five year of service as the judge of the High Court but practice in propriety always demand that the seniority principal shall be considered and in case of the appointment of the junior judge while ignoring the senior and that too without assigning any valid reason eyebrows may be raised regarding their working in the relevant high courts. It was decided in the previous meeting of the judicial commission that there should be criteria in the appointment for the judges in the High Court and the Supreme Court and for the said purpose the committee was constituted to suggest suitable amendments and there relevant rules and purpose the criteria for the appointment of the judges of the Supreme Court however unfortunately neither of the criteria nor the amended rules has been framed by the set committee till date although the honorable Chief Justice has stated on the previous meeting that integrity, capacity, temperament and one thing more competence have been settled in the that meeting but even then that has not been converted into the rules and the matter was deferred for the further deliberation to judge how the criteria will be determined the list provided of the nominee judges barring Chief Justice of the Peshawar HC who are the junior judges than their seniors and the other judges are more eligible. So far I have gone throw the data for appointment of the judges of the Supreme Court then the junior nominees the letter written by Justice Ahmed Ali Sheikh indicates that he had earlier wrtten the letter on 12th march 2022 which was not shared with us in this meeting in which he has written due to some circumstances that he is not interested to the elevation as the judge of the supreme court he is nobody to refuse. So this letter may not be the reason for not considering him for the appointment of judge for the Supreme Court, if he was appointed as the judge of the Supreme Court and he refused then the Article 206 2 of the Constitution will operate against him and he will be deemed to have retire. Only then the next judge junior to him can be considered for the further appointment for the judge of the Supreme Court otherwise and in the Constitution there is no provision for concept for getting consent or refusal from a judge by Chief Justice for the appointment as the judge of the Supreme Court. On the other hand, Chief Justice Athar Minallah who is second to Justice Ahmed Ali Sheikh in seniority among chief justices of the high court of the country has been superseded and completely ignored no data our record regarding his work and the capacity has been provided to the commission.

There is no reason available on the record as to why he has been superseded his integrity, capacity, temperament etc are above board which is known to everyone his judgements are to be considered, discussed and relied upon by the judiciary of the other countries; nobody can raise if a finger to his word, to his integrity, capacity etc. but surprisingly he was ignored despite the fact that he is the most senior judge among Chief Justices of the High Courts. We had our informal meeting before in that Chief Justice said that there is no concept of bringing the Islamabad High Court judge. In 175 there is the discussion about the Islamabad and to make judges there too it is written in 175 that the judges who will be brought to Supreme Court will be brought from high courts, so there are five high courts and we have the example; Iqbal Hameedur Rehman was appointed as the judge of the Supreme Court from Islamabad High Court so his ignorance, I must say that he is the most senior chief justice of all the high courts but he has been ignore at all and there is no reason for that. It is quite clear that in the high court of the Sindh and the Lahore high court and among the chief justice of all the high courts there are many senior judges than the nominees for the appointment for the judge of the Supreme Court. This amount of the discrimination which is against the mandate of the Constitution we daily decided the cases in the courts on the basis of the discrimination but why the discrimination is being done in our own institution. On the other hand, the propriety demand that the seniority must be considered first if anywere of that was not found not capable despite being the senior for appointment as the judge of the supreme court valid reason I just say again and again valid reason for not appointing the senior judge shall be given. This would mean that the senior should not be considered for appointment in the Supreme Court but the honorable CJP letter dated 20th July 2022 by he reveals in para 9 and specifically mentioned that those judges who have been ignored now can be appointed as the judge of the Supreme Court in the future if they are eligible for the appointment in the Supreme Court for the future, then why presently they are not nominated for the appointment of the judges of the Supreme Court. The data provided and the queries made from the different corners of the bar association indicates the senior judges who have been ignored are more competent to become judges of the Supreme Court then the nominees the violation of the seniority and the competence will not only hurt their feelings and if for the sake of the arguments as mentioned in paragraph 9 in the future they are appointed as the judge of the supreme court they said senior judges in the high court will become junior to the nominees in the Supreme Court and this is I don’t know, we should not manipulate the system by making those who are juniors by them and then making them seniors in the supreme court.

The bar council and the bad association who always stand for the judiciary against the unconstitutional act in our country always done by the forces has also have very serious reservations regarding the appointment of the judges against the principals of the seniority and such reservations are the result of collective wisdom of legal fraternity and the same cannot be likely to be ignored to abide by the seniority principals has been there consistent stand for about a decade. So far the nominee for the Sindh high court are concerned no data Mr Justice Ahmed Ali Sheikh is provided and data provided regarding the nominees along with two seniors indicates that Mr Justice Irfan Sadaat Khan authored 169 detail judgements and 28 short judgements out of 197 reported judgements. Indicating that his detail judgements were 86 % whereas Mr Justice Aqeel Ahmed Abbasi authored 166 detailed judgements, 96 short judgement out of 262 reported judgement indicating that his detail judgements were 64% whereas justice Mr Syed Hassan Azhar Rizvi authored 70 detailed judgement and 65 short judgement he relied more short judgement out of 135 reported judgements indicating his detailed judgement were 52% Mr Justice Nadeem Akhtar authored 152 detailed judgements and 63 short judgements out of 214 reported judgements indicating that his detailed judgements were 71% Mr Justice Shafi Siddiqui authored 106 detailed judgement and 42 short judgement out of 148 reported judgement indicating that his detailed judgements were 72 % likewise Mr Justice Naimatullah Phulpoto authored 134 Detailed judgements and 111 short judgements we all know in criminal cases how the short judgement are written out of 245 reported judgement and his detailed judgements were 55% this equation also point out that the ignored judges has given more details judgement than some of the nominees rather Irfan Saddat Khan has authored 86 % detailed judgements which is the highest among the judges of the nominees but he has been ignored. He is not competent. The data collected from the computer branch bench of the Supreme Court indicate that 4.8% judgement are authored by the judge Sadaat Khan were set aside. Whereas its 57% judgements were upheld and 3.5% authored by Mr Justice Aqeel Abbasi was set aside whereas his 44% judgement were upheld by this court. 5% judgement handed down by the Mr Justice Hassan Raza Rizvi were set aside whereas his 76% judgements were upheld by this court 4.9% judgement authored by Mr Justice Mohammad Shafi Siddique were set aside whereas his 60% judgements were upheld by this court. Likewise 11.7% judgement authored by Mr Justice Naimatullah were set aside whereas his 48% judgements were upheld by this court the above and the percentage were set aside judgements authored by the Justice Irfan Saddat Khan and Mr Justice Aqeel Ahmed Abbasi are lesser in number then the other nominees judges high court of the Sindh which indicates the better competency command of law to set the senior judges.

The reported judgement of the Shahid Waheed of Lahore high court are less then the judgement authored by the Justice Shujjat Ali Khan the detailed reported judgement of Mr Justice Shehzad Ahmed Khan and Shujjat Ali Khan are higher than the judgement of Mr Shahid Waheed and almost equal to justice Mohammad Ameer Bhatti. So this comparative chart and next with the record also indicate that the senior judges are more eligible than the nominee judges 2.6% judgments authored by Mr Justice Ameer Bhatti were set aside whereas 76% judgements were upheld by this court 18.2 judgements authored by justice Malik Shehzad Ahmed Khan. Were set aside whereas his 60.4% judgements were upheld by this court. 2.3% judgements authored by justice Shujjat Ali Khan were set aside and whereas his 71% judgement were upheld by this court on the other hand 4% percent were authored by Mr Justice Shahid Waheed were set aside by this court whereas his 77.8% judgements were upheld so the percentage of the set aside judgements of Mr Justice Ameer Bhatti and Mr Shujjat Ali Khan are lesser in number than the nominee judge of the justice Shahid Waheed of the Lahore high court this data also confirms that the senior most judges and other seniors are equally rather better competent than the nominees, so far Naimatullah Phulpoto is concerned I totally agree with my senior most judge Mr Usmani.

I have also gone through the judgements handed down by Mr Justice Naimatullah Phulpoto who has normally authored his judgement on criminal side 111 judgement were challenged before the court out of 9 were pending leave was granted in 27 cases and 13 judgements were set aside and his judgement whereas 53 cases were dismissed out of which many of them were dismissed having become infructuous. Why I am saying that because I have the record and the data those who have become infructuous for the reason or the man got out from the jail or died.

The judgment of the case indicate that although his known be a judge having command on criminal case matters but rightly I said by Usmani sahib but his judgements were average indicating that his concept toward the criminal law is not clear. One example is that in all the cases he firstly discussed the medical evidence and only observe that the death of the deceased of UN natural hence its corroborates the other account the supreme court has already settled as for back as 1990-91 Usmani sahib knows it that the medical evidence cannot be considered as the corroborative piece of evidence as it neither pin points the accused. As it only gives the details of the injury.