Faez Isa Judgement

IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Maqbool Baqar
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Faisal Arab
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Sajjad Ali Shah
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Munib Akhtar
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
CONSTITUTION PETITION NO.17 & 19 OF 2019

& C.M.A. NO.7417 OF 2019 IN CONST. P. 19 OF
2019 & CONSTITUTION PETITIONS NO.20-30,
32 & 34 OF 2019.
Justice Qazi Faez Isa … Petitioner(s)

(in Const.P.17/2019)
Supreme Court Bar Association thr. … Petitioner(s)

its President (in Const.P.19/2019)
Abid Hassan Minto & another … Petitioner(s)

Pakistan Bar Council thr. … Petitioner(s)

its Vice Chairman (in Const.P.21/2019)
Abdul Basit, President High Court … Petitioner(s)

Bar Association, Quetta. (in Const.P.22/2019)
Muhammad Asif Reki, President … Petitioner(s)

Quetta Bar Association (in Const.P.23/2019)
Sindh High Court Bar Association … Petitioner(s)

thr. its President (in Const.P.24/2019)
Balochistan Bar Council thr. its … Petitioner(s)

Vice Chairman Haji Atta Ullah Langove (in Const.P.25/2019)
Sindh Bar Council thr. it Secretary … Petitioner(s)

Hafiz Abdur Rehman Ansari, ASC … Petitioner(s)

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Const. P.17 of 2019, etc.
Karachi Bar Association through … Petitioner(s)

its President & other (in Const.P.28/2019)
KPK Bar Council through … Petitioner(s)

its Vice Chairman (in Const.P.29/2019)
Peshawar High Court Bar Association … Petitioner(s)

thr. its President (in Const.P.30/2019)
Shahnawaz Ismail, Vice Chairman … Petitioner(s)

Punjab Bar Council (in Const.P.32/2019)
Pakistan Federal Union of Journalists … Petitioner(s)

(PFUJ) thr. its President (in Const.P.34/2019)
VERSUS
The President of Pakistan and others …Respondent(s)

(in Const.P.17, 19, 21-25,
27-30, 32 & 34 of 2019)
The Supreme Judicial Council thr. … Respondent(s)

its Secretary and others (in Const.P.20&26/2019)
Const. P. No.17 of 2019.

For the petitioner(s) : Mr. Munir A. Malik, Sr. ASC.
a/w Mr. Justice Qazi Faez Isa (appeared
in-person on 17.06.2020)
Mrs. Qazi Faez Isa (appeared through
video link on 18.06.2020)
Mr. Tariq Mehmood, Sr. ASC.
Mr. Salahuddin Ahmed, ASC.
Ch. Atif Rafiq, ASC.
assisted by:
Barrister Kabir Hashmi &
Barrister Rabi-bin-Tariq.
Mr. Babar Sattar, ASC.

assisted by: Miss Shohan Karimi,
Advocate.
Syed Kazim Hassan, ASC.

Mr. Kassim Mir Jat, AOR.

For the petitioner(s) : Mr. Hamid Khan, Sr. ASC.
assisted by:
Mr. Naseebullah Tareen, ASC.
Mr. Munir Kakar, ASC.
Mr. Ajmal Ghaffar Toor, Advocate.
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Syed Qalb-e-Hassan, ASC.

Mr. Amanullah Kanarani, ASC.
Mr. Rasheed A. Rizvi, Sr. ASC.

assisted by:
Mr. Abbas Rasheed Rizvi, Advocate.
Mr. M.S. Khattak, AOR.

For the petitioner (s) : Mr. Bilal Hassan Minto, ASC.
Ms. Hina Jillani, ASC.

For the petitioner (s) : Sardar Muhammad Aslam, ASC.
Syed Amjad Ali Shah, ASC.
Mr. Kamran Murtaza, Sr. ASC.
Mr. Azam Nazeer Tarar, ASC.
Mr. Abid Saqi, ASC.
Hafiz M. Idrees, ASC.

Mr. Salman Akram Raja, ASC.
assisted by:
Mr. Asad Ladha, Advocate &
Malik Ghulam Sabir, Advocate.
Syed Rifaqat Hussain Shah, AOR.

For the petitioner (s) : Mr. Naseebullah Tareen, ASC.
Syed Amjad Ali Shah, ASC.

For the petitioner (s) : Mr. Hamid Khan, Sr. ASC.
assisted by:
Mr. Ajmal Ghaffar Toor, Advocate
Mr. Asif Reki, Advocate.
Sh. Ahsan-ud-Din, ASC.

Mr. Khushal Kansi, ASC.

For the petitioner (s) : Mr. Rasheed A. Rizvi, Sr. ASC.
assisted by:
Mr. M. Aqil, ASC.
Mr. Kassim Mir Jat, AOR.
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assisted by:
Mr. Ajmal Ghaffar Toor, Advocate
Mr. Rashid A. Rizvi, Sr. ASC.

assisted by: Mr. Abbas Rasheed Rizvi,
Advocate.

For the petitioner (s) : Mian Raza Rabbani, Sr. ASC.
assisted by:
Mr. Zeshan Abdullah, Advocate.
Mr. Saalim Salim Ansari, ASC.

For the petitioner (s) : Hafiz Abdul Rehman Ansari, ASC.
Mr. Taufiq Asif, ASC.
Syed Rifaqat Hussain Shah, AOR.

assisted by:
Syed Haider Imam, ASC.

For the petitioner (s) : Syed Iftikhar Hussain Gillani, Sr. ASC.
assisted by:
Barrister Saad M. Buttar
Barrister Jibran Gillani &
Miss Ramsha Hayat, Advocate.
Mr. Abdul Latif Afridi, ASC.

Mr. Tariq Khan Hoti, ASC.

For the petitioner (s) : Syed Iftikhar Hussain Gillani, Sr. ASC.
assisted by:
Barrister Saad M. Buttar
Barrister Jibran Gillani &
Miss Ramsha Hayat, Advocate.
Mr. Abdul Latif Afridi, ASC.

Mr. Tariq Khan Hoti, ASC.
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assisted by:
Mr. Ajmal Ghaffar Toor, Advocate.
Mr. M.S. Khattak, AOR.

assisted by:
For respondents (2&8) : Dr. Farogh Naseem, Sr. ASC a/w

Ch. Ishtiaq Ahmed Khan, Addl. AG
Mr. Sajeel Sheryar Swati, ASC.
assisted by:
Barrister Maleeka Ali Bukhari
Ch. Hassan Murtza Mann, Adv.
Mr. Shahid Naseem Gondal, Adv.
For respondent No. 1 : Mr. Sohail Mehmood, DAG.
For respondent No.3 : Mr. Aamir Rehman, Addl. AG.
For respondent No. 4 : Mr. Irfan Qadir, ASC
For respondent No.9 : Dr. Khalid Ranjha, Sr. ASC a/w

Mr. Sajeel Sheryar Sawati, ASC.
For respondent No.10 : Abdul Waheed Dogar (in-person).
For respondent No.11 : Waheed Shahzad Butt (in-person).
For Supreme Judicial : Mr. Arbab Arif, Secretary, SJC/

Council Khawaja Daud Ahmad, Secretary SJC.
Dates of hearing : 17.09.2019; 24.09.2019; 08.10.2019;

14.10.2019; 15.10.2019; 21.10.2019;
28.10.2019; 29.10.2019; 04.11.2019;
05.11.2019; 06.11.2019; 11.11.2019;
12.11.2019; 13.11.2019; 18.11.2019;
19.11.2019; 27.11.2019; 28.11.2019;
02.12.2019; 03.12.2019; 04.12.2019;
16.12.2019; 17.12.2019; 18.12.2019;
19.12.2019; 20.01.2020; 21.01.2020;
22.01.2020; 27.01.2020; 28.01.2020;
29.01.2020; 03.02.2020; 17.02.2020;
18.02.2020; 19.02.2020; 24.02.2020;
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02.06.2020; 03.06.2020; 04.06.2020;

11.06.2020; 12.06.2020; 15.06.2020;
16.06.2020; 17.06.2020; 18.06.2020
& 19.06.2020.
JUDGMENT:
UMAR ATA BANDIAL J.-
786
“Surah An Nisa, Verse 135: O YOU who have
attained to faith! Be ever steadfast in
upholding equity, bearing witness to the
truth for the sake of God, even though it be
against your own selves or your parents and
kinsfolk. Whether the person concerned be
rich or poor, God's claim takes precedence
over [the claims of] either of them. Do not,
then, follow your own desires, lest you swerve
from justice: for if you distort [the truth],
behold, God is indeed aware of all that you
do.”
Translation by Muhammad Asad
(emphasis supplied)
Justice is an article of faith in our religion, whether that may
be against our kith and kin or against the rich or poor.
However, justice is an abstract concept attainable only where
the scales of justice are held by persons (the Judges) who
balance these equitably without regard to their personal
desires. Indeed, the latter is the duty of the Superior
Judiciary by virtue of their Oath to dispense justice without
any fear or favour, affection or ill-will (ref: Third Schedule to
the Constitution, Oath for Judges of the Superior Courts).
This serves as proof that Judges of the Superior Courts are
bound to be impartial and are entitled to be independent in
the dispensation of justice.

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2. In fact, an impartial and independent judiciary is
universally recognised as a core value of any civilised
democracy. This is evidenced by the international conventions
that protect this value as a fundamental right of the people
(ref: United Nations Basic Principles on the Independence of
Judiciary and The (Montreal) Universal Declaration on the
Independence of Justice). The significance of an independent
judiciary is also deeply embedded in Pakistan with the
Constitution itself guaranteeing in its Preamble that:
“…the independence of the judiciary shall be

fully secured;”
Even this Court in its pronouncements on the meaningful
working of the Constitutional scheme of trichotomy of powers
has many a times reaffirmed that the judiciary must enjoy the
confidence of the litigants and the general public in its
impartiality and commitment to dispense justice in
accordance with law. A prerequisite for these attributes is the
guarantee of the independence of the judiciary, a fact which
this Court acknowledged in the case of Muhammad Aslam
Awan Vs. Federation of Pakistan (2014 SCMR 1289). The
relevant portion which can be found at para-2 is produced
below:
“2: Judicial independence both of the

individual Judge and of the Judiciary as an
institution is essential so that those who
bring their causes/cases before the Judges
and the public in general have confidence
that their cases would be decided justly and
in accordance with law. Judicial
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independence is one of the foundational

values of the Constitution of Islamic Republic
of Pakistan which is based on trichotomy of
powers in which the functions of each organ
of the State have been constitutionally
delineated. The very Preamble of the
Constitution pledges "wherein the
independence of judiciary shall be fully
secured". The Constitution makers conferred
this independence because they wanted the
Judges to "do right to all manner of people,
according to law, without fear or favour,
affection or ill-will" (Oath of office of Judges).
The fundamental rights guaranteed under the
Constitution cannot be secured unless
Judiciary is independent because the
enforcement of these rights has been left to
Judiciary in terms of Articles 184(3) and 199
of the Constitution and the relevant law.
Judiciary has not been made part of the
Executive or the Legislature (Article 7). The
separation of Judiciary from the Executive
was made a Constitutional mandate (Article
175(3)).”
(emphasis supplied)
It is in this context that Justice Qazi Faez Isa (“the
petitioner”) submits that he has filed the present
Constitution Petition No. 17 of 2019 (“petition”) seeking to
protect this basic fundamental right of the Pakistani people
from unlawful interference by the Executive authorities. To
our minds, the primary duty of the Bench in all matters,
including the present petition, is to do justice impartially in
accordance with law without compromising our
independence.
FACTS
3. In the above background, we may now set out the
events which led to the filing of this petition. The petitioner is
a serving Judge of the Supreme Court. Prior to this he was

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appointed directly as Chief Justice of Baluchistan High Court
on 05.08.2009, following which he was elevated to the
Supreme Court on 05.09.2014. The petitioner has thus been
holding public office since the later part of 2009. On
10.04.2019, Respondent No. 4, Mirza Shahzad Akbar,
Chairman Assets Recovery Unit (“ARU”), received a letter
from a journalist, one Mr. Abdul Waheed Dogar (“Mr.
Dogar”). The letter alleged that the petitioner had certain
properties in the United Kingdom owned in the name of his
wife, (“Mrs. Isa”), which he had not declared. Attached with
this letter was a document detailing one of the properties, 40
Oakdale Road, London, E11 4DL. However, the respondents
only produced this document once they commenced their
arguments on 02.06.2020. Thereafter, the Chairman ARU met
with the Law Minister on 16.04.2019 who authorised the ARU
to investigate into the matter on the basis of the above
mentioned information. This is recalled in the former’s letter
dated 10.05.2019 addressed to the Law Minister.
4. After the grant of the aforenoted authorisation on
16.04.2019, certain inquiries were made by ARU to confirm
the veracity of the allegations levelled against the petitioner
by Mr. Dogar: firstly, the legal expert of ARU, Barrister Zia Ul
Mustafa Nasim, was asked to find out whether the petitioner
owned any properties in the United Kingdom in the name of
Mrs. Isa and secondly, the Chairman of Federal Board of
Revenue (“FBR”) was approached for examining the tax

10
records of the petitioner and Mrs. Isa to determine whether
any foreign properties had been declared in their wealth
statements.
5. On 08.05.2019, the legal expert of ARU conveyed
to the Chairman ARU that there were three properties in the
United Kingdom belonging to Mrs. Isa and her children. Their
details are as follows:
i. 50 Coniston Court which was

originally leased to the petitioner’s
wife in 2004 for a sum of £236,000
and was later renewed in October
2011 with the daughter added as a
co-lessee;
ii. 40 Oakdale Road which was
purchased by the wife and daughter
on 27.03.2013 for a sum of
£245,000; and
iii. 90 Adelaide Road which was
purchased by the wife and son on
28.06.2013 for a sum of £270,000
(“London Properties”).
Subsequently, on 10.05.2019 the Assistant Commissioner
(Inland Revenue) confirmed to the Commissioner (Inland
Revenue) that neither the petitioner nor Mrs. Isa had declared
these properties in their wealth statements. Additionally, he
revealed that Mrs. Isa had stopped filing her tax returns from
the tax year 2015 and onwards.
6. On receipt of this information, the Chairman of
ARU wrote a memorandum to the Law Minister on
10.05.2019 apprising him about the recent findings. On the
basis of this material, claimed to demonstrate the petitioner’s

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ownership of undeclared foreign assets, the Ministry of Law
and Justice on 17.05.2019 prepared a summary for the Prime
Minister (“PM”). This summary recommended the PM to
advise the President to file a Reference under Article 209(5) of
the Constitution before the Supreme Judicial Council (“SJC”)
alleging misconduct against the petitioner. On 20.05.2019 the
President approved and signed the Reference (this was later
numbered as SJC Reference No. 1 of 2019) which was filed
with Secretary SJC on 23.05.2019. The primary allegation in
the Reference against the petitioner was that he had violated
Section 116 of the Income Tax Ordinance, 2001 (“the
Ordinance”) by not declaring the London Properties of Mrs.
Isa and his children in his wealth statements. The Reference
also alleged that the source of funds for purchasing these
properties was not accounted for which meant that the aspect
of money laundering could not be ruled out.
7. Consequent to the Reference being filed, the SJC
by a formal intimation dated 14.06.2019 directed the
petitioner to respond to the three allegations contained in the
Reference (ref: Const. P. No. 17 of 2019, Part II), particularly:
“Page106: …the factum of ownership of

the relevant properties mentioned in the
Reference, the source of funds utilized for
their acquisition and the mode of transfer
of such funds.”
(emphasis supplied)
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The petitioner filed his Preliminary Response on 28.06.2019
in which he admitted that the London Properties were owned
by his wife, who he claimed was a financially independent
taxpayer, and his adult children (ref: page 128, Const. P. No.
17 of 2019, Part II). However, no explanation was provided for
the other two questions posed by the SJC. As a result, the
SJC by its order dated 02.07.2019 asked the former learned
Attorney General (“AG”) to assist the Council on the next date
of hearing on 12.07.2019. Consequently, the AG filed a
Rejoinder before the SJC on 11.07.2019. After considering the
Preliminary Response of the petitioner and the Rejoinder and
documents filed by the AG, on 12.07.2019 the SJC ordered
the issuance of a Show Cause Notice (“SCN”) to the
petitioner. The SCN was issued on 17.07.2019. In his Interim
Reply to the SCN dated 31.07.2019, the petitioner
categorically rejected being the owner, both actual and
ostensible, of the London Properties and further denied all
knowledge of their particulars. Thereafter, he filed the present
petition bearing the number Const. P. 17 of 2019 under
Article 184(3) of the Constitution on 07.08.2019 with the
following prayer:
A. Declare that Reference No. 1 and

Reference No. 427 are not maintainable
and non-est dismiss the same;
B. Declare that Reference No. 1 and
Reference No. 427 are mala fide, filed
with malice aforethought, filed for
ulterior motives and to achieve a
collateral purpose and therefore are not
maintainable and liable to be
dismissed;
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C. Declare that proceeding any further

with Reference No. 1 and Reference No.
427 undermines the independence of
the judiciary, which independence is
secured under the Constitution;
D. Declare that as Reference No. 1 has
been filed by proxy it is not
maintainable and cannot be
entertained;
E. Declare that as there is every likelihood
for this petition succeeding the Hon’ble
Supreme Judicial Council be restrained
from proceeding in the matter of
Reference No. 1 and Reference No. 427
till the disposal of this Petition;
F. Declare that in camera proceedings of
the Hon’ble Council in the context of
this case are without lawful authority
and in breach of fundamental rights;
G. Grant any other, further or better relief
to which the Petitioner may be entitled
to and which this Hon’ble Court deems
fit and proper to grant under Article
184 (3) of the Constitution.
8. The above noted prayer in the petition is preceded
by fifty-four questions of law. The main contentions
formulated by the learned counsel for the petitioner are as
follows:
i. There was no legal obligation on the petitioner to
disclose the London Properties of his wife and children;
ii. The alleged misconduct has no nexus with the office of
the petitioner;
iii. The Reference is a mala fide and colourable exercise of
power;
iv. The petitioner and his family were subjected to covert
State surveillance;
v. The evidence against the petitioner was collected
illegally;
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vi. The ARU was constituted without any legal authority;
vii. There was no authorisation from the President to collect
material in support of the complaint;
viii. The President did not form his opinion in terms of
Article 209(5) of the Constitution;
ix. No approval of the Federal Cabinet was taken prior to
the filing of the Reference before the SJC;
x. There is no substance to the allegations levelled against
the petitioner in the Reference; and
xi. The members of the SJC harbour bias against the
petitioner (however, learned counsel for the petitioner
did not press this argument during oral submissions).
On the factual plane, learned counsel for the petitioner
repeatedly contended that because the London Properties are
held in the names of the petitioner’s financially independent
taxpayer wife and adult children, the tax authorities should
question them about the source of funds and the mode of
their transfer, instead of harassing the petitioner through a
Presidential reference filed under Article 209 of the
Constitution.
9. Subsequent to the filing of Const. P. No. 17 of
2019 before this Court, the following Constitution Petitions
were also filed by the Bar Councils and Associations and

15
concerned citizens of Pakistan to defend the integrity of the
petitioner:
i. Supreme Court Bar Association Vs. President of
Pakistan and others (Const. P. No. 19 of 2019);
ii. Abid Hassan Minto and another Vs. Supreme Judicial
Council through its Secretary and others (Const. P. No.
20 of 2019);
iii. Pakistan Bar Council Vs. President of Pakistan (Const.
P. No. 21 of 2019);
iv. Abdul Basit President High Court Bar Association
Quetta Vs. President of Pakistan (Const. P. No. 22 of
2019);
v. Muhammad Asif Reki President Quetta Bar Association
Vs. President of Pakistan (Const. P. No. 23 of 2019);
vi. Sindh High Court Bar Association Vs. President of
Pakistan (Const. P. No. 24 of 2019);
vii. Balochistan Bar Council Vs. President of Pakistan
(Const. P. No. 25 of 2019);
viii. Sindh Bar Council Vs. Supreme Judicial Council
through its Secretary (Const. P. No. 26 of 2019);
ix. Hafiz Abdur Rehman Ansari Vs. President of Pakistan
(Const. P. No. 27 of 2019);
x. Karachi Bar Association Vs. President of Pakistan
(Const. P. No. 28 of 2019);
xi. KPK Bar Council Vs. President of Pakistan (Const. P.
No. 29 of 2019);
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xii. Peshawar High Court Bar Association Vs. President of
Pakistan (Const. P. No. 30 of 2019);
xiii. Punjab Bar Council Vs. President of Pakistan (Const. P.
No. 32 of 2019); and
xiv. Pakistan Federal Union of Journalists Vs. President of
Pakistan (Const. P. No. 34 of 2019).
These connected petitions primarily raised similar
contentions as those agitated by the petitioner, namely, the
non-application of mind by the President, mala fides on the
part of the respondents in the framing and preparation of the
Reference, the precise nature and scope of Article 209(5) of
the Constitution, the unlawful creation of the ARU and the
necessity of protecting the independence of the judiciary. In
the interests of justice, these petitions were clubbed together
and were heard along with the main petition filed by the
petitioner.
10. In rebuttal to the petitioner’s pleas and without
assailing his integrity, the respondents submitted the
following objections and contentions:
i. The petition is not maintainable for failing to cross the
bar under Article 211 of the Constitution both in
respect of the pre-reference proceedings and the
unchallenged SCN issued by the SJC;

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ii. The term misconduct is an inclusive term which
includes not only conduct which violates the law but
also conduct which is unbecoming of an officer;
iii. The conduct of the petitioner has to be viewed in light of
the obligations laid out in the Code of Conduct;
iv. There is no ulterior purpose behind the filing of the
Reference;
v. There has been no covert surveillance of the petitioner
or his family or any breach of their right to privacy;
vi. There has been no illegal collection of evidence;
vii. The ARU has been properly constituted;
viii. The President has formed his opinion in accordance
with law; and
ix. There is merit in the allegations levelled against the
petitioner in the Reference.
11. At the outset, we would like to mention that the
first hearing for this petition commenced on 17.09.2019 in
front of a seven member Bench. However, learned counsel for
the petitioner filed an objection application against two
learned Judges of the Bench, namely, Justice Sardar Tariq
Masood and Justice Ijaz ul Ahsan. He submitted that an
adverse outcome for the petitioner, i.e. removal from office,
would benefit both the learned Judges in the following
manner: Justice Sardar Tariq Masood would become Chief
Justice for six months in the year 2023 while Justice Ijaz ul
18
Ahsan would thereafter see his tenure as Chief Justice
increase from ten months to seventeen months. Accordingly,
he requested the two learned Judges to recuse themselves
from hearing this petition. The remaining five members of the
Bench unanimously disapproved of this application of the
learned counsel in their order dated 17.09.2019 reported as
Justice Qazi Faez Isa Vs. The President of Pakistan (2019
SCMR 1875):
“5: … The submissions made by the learned

counsel, however, do not disclose such an
interest. On the other hand, the suggestion is
that a tangible interest may accrue four years
later. It involves a contingent, prospective
and speculative interest. No precedent to hold
such a future contingency to be a
disqualifying factor for a Judge has been
cited by the learned counsel. His plea is
accordingly laden with contingencies and
possibly fails the test of a "real likelihood" of
prejudice from any Member of this Bench
[Asif Ali Zardari v. State (PLD 2001 SC 568 at
p.592)]. As such the submissions made by
learned counsel prima facie do not carry
weight.”
(emphasis supplied)
However, Justice Sardar Tariq Masood, immediately, and
Justice Ijaz ul Ahsan, with strong reservations, recused
themselves from the Bench to maintain the purity, dignity
and sanctity of this Court. For convenience, a portion from
the note penned by Justice Ijaz ul Ahsan is reproduced below:
“2: However, in view of the reservations,

unfortunately expressed on behalf of the
petitioner, who is a brother Judge of this
Court, which are neither justified nor have
any basis whatsoever in fact, I do not
consider it appropriate to hear these
19
petitions, lest the petitioner entertain the

remotest possibility of even a notional
element of partiality or bias on my part.”
(emphasis supplied)
It was in these circumstances that the file of this case was
placed before the (then) Chief Justice to constitute a Full
Court of eligible Judges who were neither members of the SJC
nor were objected to by the petitioner.
12. As a result, a Bench comprising of ten learned
Judges was formed which heard this petition for
approximately 10 months, during which period learned
counsel for the petitioner argued their case across 18
hearings, learned counsel in the connected petitions argued
their cases across 10 hearings and learned counsel for the
respondents argued his case across 13 hearings.
Subsequently, this Court passed a short order on 19.06.2020
which is reproduced below for convenience:
“O R D E R
For detailed reasons to be recorded later and
subject to any orders made or directions
given therein (if any), these petitions are
allowed and disposed of in the following
terms:
1. Subject to what is stated below, the
Order of the Court is that Reference No. 1 of
2019 is declared to be of no legal effect
whatsoever and stands quashed, and in
consequence thereof the proceedings pending
in the Supreme Judicial Council (“Council”)
against the Petitioner in CP 17/2019
(including the show-cause notice dated
17.07.2019 issued to him) stand abated.
2. Mr. Justice Yahya Afridi dismisses CP
17/2019 and disposes of the other petitions
in terms as stated in para 1 herein above.
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3. Mr. Justice Umar Ata Bandial, Mr.

Justice Manzoor Ahmad Malik, Mr. Justice
Faisal Arab, Mr. Justice Mazhar Alam Khan
Miankhel, Mr. Justice Sajjad Ali Shah, Mr.
Justice Munib Akhtar and Mr. Justice Qazi
Muhammad Amin Ahmed make the following
orders as the further Order of the Court
(paras 4 to 11 herein below):
4. Within 7 days of this Order, the
concerned Commissioner of Inland Revenue
shall himself (and not some other officer
exercising delegated powers) issue
appropriate notices under the Income Tax
Ordinance, 2001 (“2001 Ordinance”) to the
spouse and children of the Petitioner to offer
an explanation regarding the nature and
source of the funds (separately for each
property) whereby the three properties in the
United Kingdom (viz., No. 40, Oakdale Road,
London E11 4DL; No. 90, Adelaide Road,
London E10 5NW; and No. 50, Coniston
Court, Kendal Street, London W2 2AN) that
are in the names of the spouse and the
children were acquired. For purposes of this
Order the Commissioner Inland Revenue
having jurisdiction over the spouse of the
Petitioner (who must be a Commissioner
exercising jurisdiction and performing
functions at Islamabad) shall be deemed also
to be the Commissioner having jurisdiction
over the children. (The spouse and children
are herein after referred to as “the
respondents”.) Any notices issued or
proceedings taken (or proposed to be issued
or taken) under the 2001 Ordinance in
relation to any of the respondents in respect,
or on account, of the properties aforesaid
prior to the date of this Order stand
terminated forthwith.
5. The notices shall be served at the
official residence of the Petitioner at
Islamabad through courier service and such
other means as may be considered
appropriate and shall be deemed served on
the respondents when received at the said
address.
6. The respondents shall furnish their
replies to the notices along with such
material and record as is deemed
appropriate. In case any of them is outside
the country, it shall be the responsibility of
such person to timely file a response, and the
proceedings before the Commissioner shall
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not be adjourned or delayed for the reason of

non-availability in Pakistan of such person.
7. Upon receipt of the replies (and of such
additional material/record as may be filed in
response to such clarification or explanation,
if any, as the Commissioner may, in writing,
have sought), the Commissioner shall give an
opportunity of hearing to the respondents in
person or through an authorized
representative/counsel and shall thereupon
make an order in accordance with the 2001
Ordinance.
8. The proceedings shall be concluded
before the Commissioner within 60 days of
the date of receipt of the notices as aforesaid,
and the order shall be issued by him within
75 days of the said date of receipt, and no
adjournment or extension in time whatsoever
shall be given as affects or extends the
aforesaid periods.
9. Within 7 days of the issuance of the
order by the Commissioner, the Chairman,
Federal Board of Revenue (“FBR”) shall
submit a report (to be personally signed by
him) to the Council through its Secretary (i.e.,
the Registrar of the Supreme Court) regarding
the proceedings as aforesaid, appending
thereto the entire record of the said
proceedings. The Secretary shall forthwith
place such report before the Chairman of the
Council (i.e., the Hon’ble Chief Justice of
Pakistan) who shall, in such manner as is
deemed appropriate, have the report laid
before the Council for such perusal,
consideration, action, order or proceedings, if
any, in relation to the Petitioner as the
Council may determine. The receipt of the
report, the laying of it before the Council and
the action/proceedings, if any, or orders or
directions, if any, as may be taken, made or
given by the Council thereon shall be
deemed, for purposes of Article 209 of the
Constitution, to be in exercise of the suo
moto jurisdiction as is conferred by that
Article on the Council.
10. If, within 100 days from the date of this
Order, no report as aforesaid is received by
the Secretary from the Chairman, FBR, he
shall inform the Chairman of the Council
accordingly and shall, if so directed by him,
write to the Chairman, FBR requiring an
explanation as to why the report has not been
received. If in reply the report is filed, then
22
the matter shall proceed in terms of para 9

herein above. If a reply is received without
the report or no reply is received, then the
Secretary shall bring such fact to the
attention of the Chairman of the Council who
may direct that the matter be placed before
the Council for such perusal, consideration,
action, order or proceedings, if any, in
relation to the Petitioner (or any other person
as deemed appropriate) as the Council may
determine. The action/proceedings, if any, or
orders or directions, if any, as may be taken,
made or given by the Council shall be
deemed, for purposes of Article 209 of the
Constitution, to be in exercise of the suo
moto jurisdiction as is conferred by that
Article on the Council. Without prejudice to
the foregoing, if at any stage the report is
received from the Chairman, FBR, then the
matter shall in any case proceed (or be
deemed to proceed, as the case may be) in
terms of para 9 herein above.
11. For the removal of any doubts, it is
clarified that any of the proceedings under
the 2001 Ordinance as herein contemplated
on the one hand, and before the Council in
terms of paras 9 or 10 herein above on the
other, are distinct and separate from each
other. Accordingly, nothing contained in this
Order shall affect or prejudice the right(s) of
appeal of any of the respondents under the
2001 Ordinance, if they feel aggrieved by the
order made by the Commissioner or (as the
case may be) any order made or decision
taken at any appellate stage. Any such
appeal(s) shall be decided on the merits, in
accordance with the 2001 Ordinance. At the
same time (and needless to say), the
consideration by the Council of any matter
placed before it under either paras 9 or 10
herein above shall not be affected by the filing
or pendency of any appeal as aforesaid. But
the Council may, if it deems appropriate,
notice such appellate proceedings or
orders/decisions and may (for purposes only
of the matter before it) make such orders or
give such directions in relation thereto as it
deems appropriate.
12. Mr. Justice Maqbool Baqar, Mr. Justice
Mansoor Ali Shah and Mr. Justice Yahya
Afridi join in the Order of the Court only to
the extent of para 1 herein above, and also
make their own order.
23
Order per Maqbool Baqar, Syed Mansoor Ali

Shah and Yahya Afridi, JJ.
13. For the reasons to be recorded later and
without limiting our jurisdiction in any
manner to appropriately enlarge the scope of
or make appropriate declarations and
directions in the detailed judgment, subject
to para 15 hereunder, we hold the above
petitions maintainable and allow the same.
One of the outcomes of such declaration is
that the Reference filed by the President of
Pakistan against the Petitioner (Mr. Justice
Qazi Faez Isa) is quashed, and as a result the
proceedings alongwith the Show Cause Notice
issued by Supreme Judicial Council stand
abated.
14. One of our pivotal Constitutional values
is that the independence of judiciary shall be
fully secured. The same Constitution also
ordains that to enjoy the protection of law
and to be treated in accordance with law is
the inalienable right of every citizen.
Therefore, it is reiterated that in our
constitutional democracy, neither the
petitioner judge, nor any other judge, or any
individual or any institution, is above the law.
The doors of the constitutional forum i.e.,
Supreme Judicial Council are always open,
either on its own motion or for anyone who
has a genuine and a bonafide grievance,
amenable to the jurisdiction of the Council
against a Judge of the Constitutional Court.
At the same time, it is equally important, that
a Judge like any other citizen of Pakistan
enjoys the inalienable constitutional right to
be treated in accordance with law. These
fundamental values are to be protected at all
cost in order to uphold the majesty and
supremacy of the Constitution and to honour
the people of Pakistan who have adopted and
given to themselves this Constitution.
15. Yahya Afridi, J. has however found
Constitutional Petition No. 17/2019 as non-
maintainable.
Herein below are the detailed reasons for this short order.
MAINTAINABILITY
13. The first matter which requires our consideration
is the issue of maintainability of this petition under Article

24
184(3) of the Constitution. Although no objection has been
raised by the learned counsel for the respondents in this
regard, it is still the bounden duty of this Court to establish
the requisite jurisdictional facts under Article 184(3)
regardless of whether the said point has been agitated or not.
An examination of the jurisprudence of this Court makes it
clear that in order to invoke its original jurisdiction under
Article 184(3) of the Constitution, the impugned action must
be shown to involve a matter of public importance arising
from the breach of a fundamental right which affects the
public at large. These Constitutional criteria have been
reiterated in the case of Al-Jehad Trust and another Vs.
Lahore High Court (2011 SCMR 1688) in which this Court
held:
“11: …unless the matter is of public

importance relating to the enforcement of any
of the fundamental rights conferred by Part
II, Chapter 1 of the Constitution (Articles 8 to
28), the jurisdiction of the Court under
Article 184(3) of the Constitution, cannot be
invoked. The mere importance of a matter,
without enforcement of any fundamental
right or reference to a fundamental right
without any public importance, will not
attract the jurisdiction of this Court under
Article 184(3) of the Constitution.”
14. The fundamental right of the general public which
is claimed by the petitioner to be under threat is the
derivative right of the independence of the judiciary. This
right is an essential prerequisite for the enjoyment of, inter
alia, the principal fundamental right to access justice which

25
is guaranteed to the people of Pakistan by Articles 4, 9 and
10-A of the Constitution. This Court in Sh. Riaz-Ul-Haq Vs.
Federation of Pakistan (PLD 2013 SC 501) observed that:
“28: It is to be noted that the right of "access

to justice to all" is a well recognized inviolable
right enshrined in Article 9 of the
Constitution and is equally found in the
doctrine of "due process of law". It includes
the right to be treated according to law, the
right to have a fair and proper trial and a
right to have an impartial court or tribunal.”
15. It will be useful at this stage to consider in greater
detail the independence of the judiciary, in the absence of
which all other facets of the right to access justice are
essentially rendered null and void. Indeed, the constitutional
necessity of an independent judiciary for providing such
access to justice to the public has been elaborated succinctly
in the case of Chief Justice of Pakistan Iftikhar
Muhammad Chaudhry Vs. President of Pakistan (PLD 2010
SC 61):
“60: I would, therefore, conclude and hold

that access to justice was a Fundamental
Right which the Constitution had guaranteed
to the people; that the existence of an
independent and vibrant judiciary was
indispensable and crucial for the enjoyment
of the said constitutional assurance and in
the absence thereof, this right would be a
mere illusion; that without security to the
Judges of the Superior Courts vis-a-vis, inter
alia, their service and the tenure thereof, the
independence of judiciary would be a mere
delusion and a chimera;…”
26
Two crucial points emerge from the above quoted passage:
i. Firstly, it holds that any unlawful interference
with Article 179 of the Constitution (which fixes
the tenure of the Judges of the Supreme Court
and sets the retiring age at 65 years), and any
illegal bypass of the mechanism set out in Article
209 of the Constitution (which provides the
procedure for the removal of Superior Court
Judges) is an interference with the right to access
justice. This is because such breaches erode the
independence of the judiciary.
ii. Secondly, it affirms that although each individual
Judge is guaranteed the right to be independent
by the Constitution, it is in essence the judiciary
as a whole whose independence has to be secured
and protected.
Learned counsel for both the petitioner and the Bar Councils
and Associations were at pains to stress this last point. It was
emphasised by the latter that their principled stand was not
just for the petitioner rather it was for the institution. It was
the assault and targeting of the judiciary and the grave
dangers which this posed to the right to access justice that
compelled the Bar Councils and Associations to file the
connected petitions.
27
16. However, in focusing on protecting Judges from
the clutches of the Executive, learned counsel have failed to
notice that the counterpoise of this fundamental right is
judicial accountability. This necessarily follows from the
indisputable fact that the independence of the judiciary is not
primarily for the benefit of the Judges, but exists instead to
secure the interests, rights and benefits enjoyed by the whole
of society. Therefore, if one were to focus only on the
protection of the judiciary from the depredations of the organs
of the State (howsoever vitally important and crucial that may
be), it will not be the independence of judiciary that will result
but rather it would be the rule of Judges without any checks
and balances. Accordingly, it is only fitting that judicial
independence and accountability are treated as being
complementary to each other. With that being said, it has to
be kept in mind that the petitioner has alleged that there have
been serious violations of Article 209(5) of the Constitution in
the preparation of the Reference against him. As we have
already observed, unlawful infringements of Article 209 erode
the independence of the judiciary which is directly connected
with the right to access justice. Therefore, the present petition
satisfies the two-fold requirement of Article 184(3) of the
Constitution.
17. Be that as it may, learned counsel for the
respondents has objected to the maintainability of the petition
on the ground that the SJC has taken cognizance of the

28
Reference by issuing a SCN to the petitioner. This happened
after SJC took into consideration the petitioner’s Preliminary
Response dated 28.06.2019 and Interim Reply dated
31.07.2019 on the merits of the Reference. However, as our
short order dated 19.06.2020 has declared the Reference to
be of no legal effect, this contention of the learned counsel is
misplaced. The SCN issued by the SJC to the petitioner is
premised on grounds given in the Reference. These have been
held by us to suffer from serious illegalities. Notwithstanding
the fact that the veracity and substance of the underlying
factual information of ownership of the London Properties is
not denied and remains intact, the SCN cannot survive on its
own. This is for two reasons: firstly, although the factual
matrix set out in the Reference attributes misconduct to the
petitioner, the information contained in it without more is
insufficient to sustain a reference for the removal of a Judge
of the Superior Courts. Secondly, the allegations in the SCN
that are derived from the Reference are discredited by the
same illegalities that invalidate the grounds of the Reference.
Therefore, the SCN stands abated.
18. Learned counsel for the respondents has
countered this line of reasoning by invoking the ouster clause
contained in Article 211 of the Constitution. For ease of
reference, this provision is produced below:
“211. Bar of Jurisdiction. The proceedings

before the Council, its report to the President
and the removal of a Judge under clause (6)
29
of Article 209 shall not be called in question

in any court.”
He has submitted that Article 211 ibid mandates that
proceedings before the SJC are to be accorded a high degree
of respect. He urged that such deference was confirmed in the
CJP case (supra) which limited a challenge to the proceedings
before the SJC to the following grounds:
“102: Having thus looked into the question of

jurisdiction of this Court vis-a-vis the
Supreme Judicial Council, I would conclude
as under:--
………………………………………………………….
(c) that the ouster clause of Article 211 of the
Constitution would not protect acts which
were mala fide or coram non judice or were
acts taken without jurisdiction;”
19. He argued that because learned counsel for the
petitioner did not press any of the three grounds mentioned
in the CJP case (supra), namely, coram non judice or actions
that are mala fide or without jurisdiction, against the SJC
during oral submissions, this Bench could not quash the SCN
issued to the petitioner. While we are in complete agreement
with the learned counsel’s submission so far as it deals with
the degree of respect to be afforded to the SJC and the
sanctity attached to its proceedings, we cannot accept the
conclusion that he has drawn from this argument. Such
reasoning fails to grasp the crucial point that we have neither
adjudicated upon the process of the SJC nor quashed its SCN
30
issued to the petitioner. In fact, in view of the findings
recorded in this judgment, we have simply abated the SCN. It
is true that the factual information underlying the Reference
casts a smear on the petitioner’s name and cannot be
ignored; however, without confronting the owners of the
London Properties the information is at present inchoate to
form the basis of proceedings under Article 209 of the
Constitution. In these circumstances, we have agreed with
the petitioner’s plea that the same must be verified to test the
veracity of the inference drawn in the Reference about the
source of funds. Nevertheless, as the latter has been quashed,
the SCN issued by the SJC has no foundation except for the
preliminary factual information contained in the Reference. In
this situation, the SCN has rightly been abated because it
also lacks the factual and legal material on which the
Reference was based. Accordingly, Article 211 has no
application to the available facts of the present case.
20. Before parting with this area of discussion, we
would like to clarify a very crucial aspect of this case that we
believe has led to some confusion: namely, what standard of
review ought to be applied by the Court for determining
whether a reference filed before the SJC is legal or not.
During oral submissions, learned counsel for the petitioner
relied upon the CJP case (supra) to argue that pre-reference

31
proceedings can be struck down on judicial review grounds.
The relevant portion from the judgment is produced below:
“70: Having thus examined all aspects of this

question, I would conclude and would
consequently declare:--
………………………………………………………....
(d) that the said matters not hit by the
mischief of Article 211 and mentioned
above, would be subject to examination,
scrutiny and judicial review like any other
executive or administrative act.”
(emphasis supplied)
21. However, learned counsel’s reliance on the CJP
case (supra) for this point is of minor significance. In that
case the Full Bench quashed the reference against the (then)
Chief Justice on the ground of malice in fact. Nowhere does
the judgment use any of the judicial review grounds to set
aside the reference. Nonetheless, out of respect for the Larger
Bench hearing the CJP case (supra), we can only convey our
reservations and not our disagreement with the aforesaid
observation.
22. Be that as it may, it is by now well-settled that
SJC is a unique (and the only) body which can examine the
conduct of a Superior Court Judge and decide whether the
said Judge is fit to complete his tenure. Reliance in this
regard is placed on the case of Khan Asfandyar Wali and
others Vs. Federation of Pakistan (PLD 2001 SC 607):
“Page 946: The Supreme Judicial Council is a

unique institution, which comprises the
senior most Judges in judicial hierarchy and
32
entrusted with the onerous responsibility of

deciding complaints that are referred to it
through references by the President alone. It
is an essential prerequisite of the
independence of judiciary that there is put in
place a system of accountability. It should,
therefore, be the endeavour of the Judges of
the Superior Courts to make the Code fully
applicable and ensure that it is strictly
adhered to. As held in the case of Zafar Ali
Shah (supra), the Judges of the Superior
Courts are not immune from accountability.
They are accountable only in the manner laid
down under Article 209 of the Constitution.”
(emphasis supplied)
It may be noticed from the above quoted passage that the
sanctity and uniqueness of the SJC is enhanced by its
composition. It is comprised of the three senior most Judges
in the country and the two senior most Chief Justices of the
High Courts (ref: Article 209(2) of the Constitution). Indeed,
the significant impact of the SJC’s composition on the
removal process of Judges was acknowledged in The
President Vs. Mr. Justice Shaukat Ali (PLD 1971 SC 585):
“Page 602: …The forum [SJC] consists of

Judges of superior Courts who also belong to
the same profession. To be tried by one's
peers is a protection because they
understand one's difficulties, problems and
the situation in which one was.”
This dictum was subsequently approved in the CJP case
(supra) at para-98. However, if we hold today that a reference,
which is an executive action under the Constitution,
forwarded to the SJC can be struck down on ordinary judicial
review grounds such as unreasonableness and proportionality
we will be belittling its status, ignoring its competence and

33
pre-empting its decisions based on appreciation of the record.
We should endeavour to avoid taking any such step which
goes against the spirit and intent of the Constitution. But this
is precisely the course of action we will be choosing if the
standard of judicial review is adopted to examine the legality
of pre-reference proceedings. To exemplify this standard
reliance is placed on the decision in Sabir Iqbal Vs.
Cantonment Board, Peshawar (PLD 2019 SC 189):
“5: … The court can examine and judicially

review the executive discretion exercised by
the authorized officer on the ground of
proportionality. Alongside reasonableness,
proportionality is now a central standard
directing the action of the executive branch…
Proportionality is a standard that examines
the relationship between the objective the
executive branch wishes to achieve, which
has the potential of infringing upon a human
right, and the means it has chosen in order
to achieve that infringing objective. The
fiduciary duty, from which the administrative
duty of fairness and administrative
reasonableness are derived, demands
administrative proportionality as well… An
administrative measure must not be more
drastic than necessary or to sum up in a
phrase - not taking a sledgehammer to crack
a nut. According to De Smith's Judicial
Review, the standards of proportionality and
unreasonableness are inextricably
intertwined. Unreasonableness contains two
elements of proportionality when it requires
the weight of relevant considerations to be
fairly balanced and when it forbids unduly
oppressive decisions. Under the first element,
proportionality is a test requiring the
decision- maker to maintain a fair balance.
Under this category the courts evaluate
whether manifestly disproportionate weight
has been attached to one or other
considerations relevant to the decision. The
second element is that the courts consider
whether there has been a disproportionate
interference with the claimants rights or
interests. A more sophisticated version of
proportionality provides for a structured test.
34
Here the courts ask first whether the

measure, which is being challenged, is
suitable to attaining the identified ends (the
test of suitability). Suitability here includes
the notion of "rational connection" between
the means and ends. The next step asks
whether the measure is necessary and
whether a less restrictive or onerous method
could have been adopted (the test of necessity
- requiring minimum impairment of the rights
or interest in question).”
(emphasis supplied)
23. It may be noticed from the above quoted passage
that the scope of judicial review is not only vast but may also
be intertwined with the merits of a case. We have already
observed that SJC is the only constitutional authority which
can examine the conduct of a Judge of the Superior Courts.
Therefore, giving the power of judicial review to this Court to
set aside pre-reference proceedings will be tantamount to
rejecting the capacity and jurisdiction of the SJC to
adjudicate upon any question of unreasonableness,
proportionality or suitability raised in relation to the merits of
the President’s actions. It will also open the floodgates of
litigation by Judges who are the subject of a Reference. This
prima facie appears to be contrary to the meaning of Article
209 of the Constitution which entrusts all matters regarding
the merits of a case to a high powered Constitutional
domestic forum within the judiciary. It is also pertinent to
mention here that even learned counsel for the petitioner
challenged the pre-Reference proceedings in the present case
on the grounds of mala fides and not judicial review.

35
THE CASE AGAINST THE PETITIONER
24. Before examining the questions of law raised in
this petition, it will be useful to consider the provisions of
Article 209 of the Constitution under which the present
Reference has been filed:
“209. Supreme Judicial Council.

(1) There shall be a Supreme Judicial Council
of Pakistan, in this Chapter referred to as the
Council.
(2) The Council shall consist of,
(a) the Chief Justice of Pakistan;
(b) the two next most senior Judges of the
Supreme Court; and
(c) the two most senior Chief Justices of High
Courts.
Explanation:- For the purpose of
this clause, the inter se seniority of
the Chief Justices of the High
Courts shall be determined with
reference to their dates of
appointment as Chief Justice
[otherwise than as acting Chief
Justice], and in case the dates of
such appointment are the same,
with reference to their dates of
appointment as Judges of any of
the High Courts.
(3) If at any time the Council is inquiring into
the capacity or conduct of a Judge who is a
member of the Council, or a member of the
Council is absent or is unable to act due to
illness or any other cause, then
(a) if such member is a Judge of the Supreme
Court, the Judge of the Supreme Court who
is next in seniority below the Judges referred
to in paragraph (b) of clause (2), and
(b) if such member is the Chief Justice of a
High Court; the Chief Justice of another High
Court who is next in seniority amongst the
Chief Justices of the remaining High Courts,
shall act as a member of the Council in his
place.
36
(4) If, upon any matter inquired into by the

Council, there is a difference of opinion
amongst its members, the opinion of the
majority shall prevail, and the report of the
Council to the President shall be expressed in
terms of the view of the majority.
(5) If, on information from any source, the
Council or the President is of the opinion that
a Judge of the Supreme Court or of a High
Court-
(a) may be incapable of properly performing
the duties of his office by reason of physical
or mental incapacity; or
(b) may have been guilty of misconduct,
the President shall direct the Council to, or
the Council may, on its own motion, inquire
into the matter.”
(6) If, after inquiring into the matter, the
Council reports to the President that it is of
the opinion,
(a) that the Judge is incapable of performing
the duties of his office or has been guilty of
misconduct, and
(b) that he should be removed from office, the
President may remove the Judge from office.
(7) A Judge of the Supreme Court or of a High
Court shall not be removed from office except
as provided by this Article.
(8) The Council shall issue a code of conduct
to be observed by Judges of the Supreme
Court and of the High Courts.”
(emphasis supplied)
25. It may be noticed from the above quoted sub-
Article 209(5) that proceedings by the SJC may be initiated on
grounds of misconduct or physical or mental incapacity of a
Superior Court Judge. In the present case, the Reference has
alleged misconduct on the part of the petitioner to seek his
removal from office. It is specifically alleged that the petitioner
has committed a violation of Section 116 of the Ordinance.

37
This has led to the question of source of funds, the violation
of the money laundering regime and the provisions of Foreign
Exchange Regulation Act, 1947 (“FERA”).
26. Although seemingly straightforward, the word
‘misconduct’ has drawn extensive arguments from both sides.
Moreover, despite the significance of this term, it has so far
escaped a comprehensive definition. Article 209(5) of the
Constitution, which is the primary provision dealing with the
removal of Superior Court Judges, does not define it. Even
the Code of Conduct (“CoC”) issued under Article 209(8) of
the Constitution to regulate the conduct of Superior Court
Judges does not attribute any meaning to this term. However,
it does prescribe the norms and standards of good judicial
and personal behaviour expected of Judges. Therefore, any
conduct which conflicts with the mandated norms in the CoC
can attract scrutiny for possible misconduct. For instance,
the CoC observes that the prime duty of a Judge of the
Superior Courts ‘is to present before the public an image of
justice of the nation’ (ref: Preamble of CoC). It also makes
reference to the Oath of the Judges and their solemn duty to
uphold and submit to the Constitution and the law (ref:
Preamble of CoC). Therefore, simply put the CoC expects that
Judges will conduct themselves with integrity, propriety and
dignity both in their public and private lives and will not
38
engage in controversy. It would be useful at this stage to set
out what these generic terms actually entail:
“Chambers Dictionary
Page 471: Dignity: elevation of mind or
character;
Page 869: Integrity: uprightness; honesty;
purity.
Page 1376: Propriety: conformity with good
manners; conformity with convention in
language and conduct;”
It thus becomes clear that the CoC primarily provides
guidance to Judges of Superior Courts on the exemplary
qualities they must possess. Therefore, conduct that diverges
from these qualities would constitute misconduct. However,
ultimately the CoC is silent about the meaning of misconduct.
Be that as it may, the Supreme Judicial Council Procedure of
Enquiry, 2005 (“2005 Rules”), framed by the SJC, has drawn
wisdom from case-law and the CoC to state certain general
standards for Judges of the Superior Courts, namely:
“3. Definitions:
In the present Procedure, unless the context
provides otherwise, the following expressions
used in the Procedure will have the meaning
as assigned to them
hereunder;……………………………………………
…………….
(l) “Misconduct”, includes,
(i) conduct unbecoming of a Judge,
(ii) is in disregard of the Code of Conduct
issued under Article 209(8) of the
Constitution of Islamic Republic of
Pakistan,
(iii) is found to be inefficient or has ceased
to be efficient.”
39
27. In practical terms, Rule 3(l)(i) succinctly
encapsulates the normative standards of misconduct
provided in the CoC whilst Rule 3(l)(iii) includes an objective
criterion that relates to a Judge’s professional performance.
Both criteria are consistent with the CoC and are primarily
explanatory rather than definitional. The sanctity of the 2005
Rules can be traced to their Constitutional origin as these
have been framed by the SJC in the exercise of its implied
power to facilitate its own proceedings. Such status of the
2005 Rules has been affirmed by this Court in Justice
Shaukat Aziz Siddiqui Vs. Federation of Pakistan (PLD
2018 SC 538) at para-60 which is produced below:
“60: The aforesaid leaves no manner of doubt

that where the Constitution creates a forum
(SJC) vested with the jurisdiction of
accountability of the Judges of the Superior
Courts and holders of other high Offices as
mentioned in the Constitution or the law,
such forum (SJC) has implied and ancillary
power to give effect to the mandate of the
Constitution, more particularly, by devising
its own procedure.”
(emphasis supplied)
Since the 2005 Rules have been framed by the SJC to
implement its mandate and regulate its own proceedings,
these carry special force and thus stand on a higher pedestal
than ordinary laws. These Rules provide guidelines for the
conduct of SJC proceedings and the exercise of its
jurisdiction. Indeed, the SJC as the constitutionally
empowered body has been utilising the criteria of misconduct

40
noted in Rule 3(l) of the 2005 Rules and elaborated upon in
the CoC to assess the culpability of Superior Court Judges.
28. To assist us on this matter learned counsel for the
petitioner, Mr. Babar Sattar, submitted that the CoC imposes
two separate obligations on Superior Court Judges: duties
that are peculiar to judicial conduct and responsibilities that
are specific to personal conduct. It was his case that it is only
conduct which is connected with the office of a Judge that
can form the basis of a Reference against the petitioner under
Article 209(5) of the Constitution. Any other wrong committed
by the petitioner in his personal life which has no connection
whatsoever with his office can only be visited upon by
penalties provided for the wrong committed under the
relevant law. He further argued that only such misconduct of
the petitioner is cognizable by the SJC that is committed
during the former’s current service as a Supreme Court
Judge. Any misconduct committed previously by the
petitioner during his tenure as the Chief Justice of
Baluchistan High Court stands absolved. Next, he canvassed
the proposition that the petitioner is only responsible for his
own personal conduct and not that of his independent wife
and children. On this analysis, learned counsel concluded
that none of the allegations contained in the Reference
satisfied the test of misconduct propounded by him. The
London Properties he stated were owned by the Mrs. Isa and
her children. Therefore, any justification for an alleged

41
violation of the relevant law in Section 116 of the Ordinance
and any explanation for the source of funds had to be sought
from the petitioner’s family and not the petitioner himself. In
so far as the allegations of money laundering or FERA were
concerned, learned counsel stated that there was simply no
material before the Law Minister, PM and President which
justified the inclusion of these charges in the Reference
against the petitioner.
29. On the converse, learned counsel for the
respondents, relying on case-law from Pakistan and India,
argued that the test for misconduct is not whether it violates
any prescribed law or rules, rather the test is whether the
conduct alleged is wrong, or improper or fails to conform with
the standards and norms expected of a Judge. This he
submitted would include not only the professional conduct of
a Judge but also his conduct in private life (whether that be
his own conduct or the conduct of his family members).
Furthermore, he stated such a test is concerned only with the
gravity of the alleged misconduct and not the era in which
such misconduct is said to have been committed. Therefore,
in his opinion the factual matrix narrated in the Reference
prima facie did disclose a case of misconduct against the
petitioner. He stated that the London Properties were
acquired in the names of the petitioner’s family members at a
time when the petitioner was the Chief Justice of Baluchistan
High Court i.e. he was a public office holder. Moreover,

42
neither Mrs. Isa nor the petitioner had declared these
properties in their wealth statements filed with the Inland
Revenue authorities. Proof of this could be found in the
Assistant Commissioner’s (Inland Revenue) letter dated
10.05.2019. However, he argued the evidence which called for
a Reference of misconduct to be filed were the tax returns of
Mrs. Isa and the petitioner. The former’s returns showed that
she did not have sufficient funds for the purchase of these
properties (the children have not filed any tax returns), while
the latter’s returns disclosed that he in fact did possess
surplus funds. As a result, he submitted that such non-
declaration of the London Properties on the part of the
petitioner and Mrs. Isa coupled with their respective financial
position, and the plain meaning of Section 116(1)(b) of the
Ordinance supported the presumption that it was actually the
petitioner who had financed these properties. Accordingly, an
answer had to be provided by the petitioner about the source
of funds to rule out any violation of Section 116 of the
Ordinance and the money laundering regime. Such an answer
could only be sought by the SJC which is why the Reference
was filed against the petitioner.
30. In our considered view, to determine whether the
facts of this case warranted the filing of a Reference alleging
misconduct against the petitioner, the substance of the term
‘misconduct’ needs to be examined. Article 209(5) of the
Constitution sets out misconduct as one of the two grounds

43
of removal of a Superior Court Judge. Therefore, any meaning
ascribed to misconduct should be consistent with the object
of Article 209. Two decisions describe the purpose of Article
209 succinctly. The first is the case of Al-Jehad Trust Vs.
Federation of Pakistan (PLD 1996 SC 324) in which Justice
Manzoor Hussain Sial held that:
“Page 537: Undoubtedly, Article 209

guarantees the tenure of office of a Judge and
explicitly secures the independence of
Judiciary, which is dominant intent of the
Constitution…”
The second case is Syed Zafar Ali Shah Vs. General Pervaiz
Musharraf (PLD 2000 SC 869) in which this Court observed:
“Page 1211: Clearly, the Judges of the

Superior Judiciary enjoy constitutional
guarantee against arbitrary removal. They
can be removed only by following the
procedure laid down in Article 209 of the
Constitution by filing an appropriate
reference before the Supreme Judicial
Council and not otherwise.”
It thus becomes obvious that Article 209 serves two purposes:
i. It provides security of tenure to Superior Court Judges
by allowing them to be judged by their own peers thus
insulating the removal process from the clutches of the
Executive; and
ii. It also holds Superior Court Judges accountable for
their wrongdoings by providing a mechanism for their
removal.
44
The aforenoted two purposes are evidenced by Article 209(7)
of the Constitution which reads:
“209. Supreme Judicial Council

………………………………………………………….
(7) A Judge of the Supreme Court or of a High
Court shall not be removed from office except
as provided by this Article.”
In the above background, Article 209(5) limits the grounds of
unfitness for the removal of Judges while Article 209(7)
guarantees that honest, competent and independent Judges
do not become the target of a hostile Government/Executive.
Therefore, the threshold that constitutes misconduct for the
purposes of Judges of the Superior Courts should manifest
this intent and spirit of Article 209 of the Constitution.
Accordingly, the standard for the commission of misconduct
must not be so high that it is impossible to allege thus
rendering Judges unanswerable for their conduct. On the
other hand, the threshold for misconduct must also not be so
lenient so as to become a weapon in the hands of disgruntled
litigants, interest groups or Executive against honest,
competent and independent Judges.
31. Against this background, one can now examine
the features of misconduct recognised under Article 209(5) of
the Constitution. The starting point in this regard should be
the seminal judgment of this Court in The State Vs. Mr.

45
Justice Akhlaque Husain (PLD 1960 SC 26). The relevant
portion is reproduced below:
Page 32: “… the word "misbehaviour" must be

understood in its ordinary sense, viz. as
implying misconduct, that is to say, conduct
which is unbecoming of a Judge or renders
him unfit for the performance of the duties of
his office, or is calculated to destroy public
confidence in him… We cannot therefore
accept the respondent's contention that it is
only on proof of misconduct in respect of a
judicial proceeding or in respect of office or
on proof of conviction that a High Court
Judge may be removed and that no other
conduct, however infamous or scandalous, or
whatever defect of character it might disclose,
can ever be a ground for his removal.”
(emphasis supplied)
This dictum was followed and approved in the Shaukat Ali
case (supra) at page 623. Since the formulation is non-
exhaustive, it gives discretion to the SJC to determine
whether any alleged conduct of a Judge comes under the
purview of misconduct. It also lays down a high threshold of
misconduct to ensure that trivial indiscretions or infractions
of the law by Judges or any minor shortcomings in their
personal lives do not render them liable to removal
proceedings. At the same time it protects the integrity of the
judicial institution by allowing for the removal of Judges
whose conduct without constituting a violation of a
prescribed law is so improper that it renders such Judge unfit
for holding judicial office. In fact, the meaning of misconduct
gathered from the CoC also exemplifies this construction. As
noted above, although the CoC does not contain a definition

46
of misconduct, it does contain norms, conventions and
guidance (reflected in its Articles) on the standards to be met
by Superior Court Judges in their professional and private
lives. What is notable about such guidance is that it hardly
incorporates any legal obligations in the Code. Instead the
Articles primarily consist of ethical guidelines and traditional
norms and standards expected of a Judge. For instance, the
Preamble to the CoC reads as follows:
“…To be a living embodiment of these powers,

functions, and obligations calls for
possession of the highest qualities of intellect
and character. Equally, it imposes patterns of
behavior, which are the hall-mark of
distinction of a Judge among his fellow-men.”
Likewise, Article III observes:
“Article-III: To be above reproach, and for this

purpose to keep his conduct in all things,
official and private, free from impropriety is
expected of a Judge.”
Similarly, Article V states:
“Article-V: Functioning as he does in full view

of the public, a Judge gets thereby all the
publicity that is good for him. He should not
seek more. In particular, he should not
engage in any public controversy, least of all
on a political question, notwithstanding that
it involves a question of law.”
Lastly, we have Article VI which requires:
“Article-VI: A Judge should endeavor to avoid,

as far as possible, being involved, either on
his own behalf or on behalf of others, in
litigation or in matters which are liable to
lead to litigation such as industry, trade or
speculative transactions.
47
To employ the influence of his position to

gain undue advantage, whether immediate or
future, is a grave fault.
A Judge must avoid incurring financial or
other obligations to private institutions or
persons such as may embarrass him in the
performance of his functions.”
(emphasis supplied)
32. It may be noticed that the above Articles of the
CoC are non-legal in nature. A violation of any of these
Articles would neither sustain a civil lawsuit nor a criminal
prosecution. However, an infringement thereof may very well
lead to disciplinary proceedings under Article 209(5) of the
Constitution. But, this is not the only remarkable feature of
the CoC. For instance, on a careful examination of Article III,
it can be observed that it expects Superior Court Judges to
keep their conduct in all aspects of their lives, including
private life, free from impropriety. Furthermore, Article VI
calls upon Judges to avoid litigation and to be diligent in their
financial affairs to minimise the chance of any
embarrassment in the performance of their functions. This
very clearly means that the CoC does not only expect
impeccable behaviour from a Judge in the courtroom but it
also expects him to maintain these high standards of
integrity, propriety and dignity outside the Court. Such
qualities and conduct are necessary to preserve not only the
prestige and honour of the Judge but also the prestige and
honour of the institution of the judiciary. Therefore, the
contention of the learned counsel for the petitioner that the

48
allegations against the petitioner pertain to his personal life
and so cannot become the basis for a Reference has no force.
Accordingly, there is no doubt in our minds that the
interpretation of misconduct set out by this Court in the
Justice Akhlaque Hussain case (supra) reflects the intent
and spirit of Article 209(5) of the Constitution, the CoC and
the 2005 Rules.
33. Additionally, the threshold of misconduct adopted
by this Court and approved by the SJC is also similar to the
tests used by Disciplinary Committees and Parliaments of
foreign jurisdictions for the removal of Judges. For example,
the requirement of upholding the confidence of the public is
not unique to our Courts. In fact, it is a criterion which is
applied across the world to enforce accountability of Judges
and other public office holders. In Lawrence V Attorney
General of Grenada (2007 UKPC 18 at para-25) the Privy
Council approved a passage from Clark V Vanstone (2004
FCA 1105) in which the Federal Court of Australia held:
“Para 85: …For present purposes, the

important proposition to be drawn from these
expressions of opinion is that, in a case in
which the term ‘misbehaviour’ is used with
reference to the holder of an office, the
content of its meaning is to be determined by
reference to the effect of the conduct on the
capacity of the person to continue to hold the
office. In turn, the capacity to continue to
hold an office has two aspects. The conduct
of the person concerned might be such that it
affects directly the person’s ability to carry
out the office. Alternatively, or in addition, it
may affect the perceptions of others in
relation to the office, so that any purported
performance of the duties of the office will be
49
perceived widely as corrupt, improper or

inimical to the interests of the persons, or the
organisation, for whose benefit the functions
of the office are performed.”
(emphasis supplied)
This passage was cited again with approval by the majority of
the Privy Council in Hearing on the Report of the Chief
Justice of Gibraltar (2009 UKPC 43 at para-202). Even in
the United States, where the process of impeachment of
Judges is initiated by a Resolution of the House of
Representatives (“House”), the Report dated 10.05.1989
accompanying the Resolution to Impeach United States
District Judge Walter L. Nixon, Jr (ref: Report No. 101) stated:
“Page 12: …thus, from an historical

perspective the question of what conduct by a
Federal judge constitutes an impeachable
offense has evolved to the position where the
focus is now on public confidence in the
integrity and impartiality of the judiciary.
When a judge’s conduct calls into questions
his or her integrity or impartiality, Congress
must consider whether impeachment and
removal of the judge from office is necessary
to protect the integrity of the judicial branch
and uphold the public trust.”
(emphasis supplied)
Likewise in Australia, Sir George Bush sitting in the
Parliamentary Commission inquiring into the alleged
misconduct of Justice Lionel Keith Murphy, Judge High Court
of Australia, held:
“Page 8: If [judges] conduct, even in matters

remote from their work, is such that it would
be judged by the standards of the time to
throw doubt on their own suitability to
continue in office, or to undermine their
authority as judges or the standing of their
50
courts, it may be appropriate to remove

them.”
(emphasis supplied)
Even in the Justice Shaukat Ali case (supra), the SJC
observed that:
“Page 602: …It [inquiry by SJC] is simply the

conduct of a Judge which is to be properly
reviewed in the interest of the purity and
honour of the judiciary…”
This dictum was later cited with approval in the CJP case
(supra) at para-98. These tests, therefore, not only affirm this
Court’s interpretation of misconduct but also (again) dispel
the contention of the learned counsel for the petitioner that
only conduct which has a nexus with the petitioner’s office
can be the basis of an information under Article 209(5) of the
Constitution. In fact, misconduct is any conduct of the Judge
which damages the publics perception about his ability to
discharge his duties or which undermines public confidence
in the institution of the judiciary regardless of whether such
conduct occurs in the professional arena or in the private life
of a Judge.
34. As for the learned counsel’s contention that the
petitioner can only be removed for misconduct committed
during his tenure as a Supreme Court Judge, it will suffice to
reproduce what the House held in its report dated 08.07.1912
against Robert Wodrow Archbald, Judge of the United States

51
Court of Appeal for the Third Circuit (Pennsylvania, New
Jersey, Delaware and Virgin Islands) (ref: Report No. 946):
“Page 175: It is indeed anomalous if the

Congress is powerless to remove a[n]… unfit
Federal judge from office because his…
misdemeanor, however vicious or
reprehensible, may have occurred during his
tenure in some other judicial office under the
Government of the United States prior to his
appointment to the particular office from
which he is sought to be ousted by
impeachment, although he may have held a
Federal judgeship continuously from the time
of the commission of his offenses. Surely the
House of Representatives will not recognize
nor the Senate apply such a narrow and
technical construction of the constitutional
provisions relating to impeachments.”
(emphasis supplied)
Similarly, the House in its report dated 04.03.2010 against G.
Thomas Porteous, Jr., Judge of the United States District
Court for the Eastern District of Louisiana (ref: Report 427)
noted that the critical question which needs to be addressed
by the House and Congress is whether the alleged misconduct
demonstrates a lack of integrity and judgment in the Judge
which makes him unsuitable to continue to perform the
functions of his post. The timing of the misconduct is
irrelevant to such a determination (page 19). Indeed, by
accepting the contention of the learned counsel for the
petitioner that a time bar should be imported into the process
of judicial accountability, we would be granting immunity to
Judges who have committed serious misconduct in their
previous posts. This would be contrary to the demand for

52
transparency and fairness in the accountability of Judges,
especially when it is self-evident that previous behaviour of a
Judge is a reflection of his character, disposition and
professional or private ethics. Therefore, the submission of
the learned counsel that the alleged misconduct of the
petitioner has become a past and closed transaction because
it was committed during his time as a High Court Judge
Court is incorrect.
35. Lastly, learned counsel for the petitioner also
raised the argument that the petitioner was not accountable
for the financial affairs of his independent wife and adult
children. While there is no cavil to the proposition that “the
days are long gone when a husband and wife were treated as
one person in law and the husband was that person” (ref:
Chief Justice of Gibraltar case (supra) at para-257), the fact
of the matter is that when it comes to public office holders the
situation is different. Judges, like other public office holders,
occupy a position of sacred trust. They hold positions where
they exercise power and authority under the law. Under the
Constitution and the law, such a position carries certain
benefits and privileges accompanied by obligations and
responsibilities. A Judge of the Superior Court is entitled to
these perks and benefits which are also enjoyed by his spouse
53
and family. Some of these benefits and privileges available to
the spouse and family of a Judge of the Superior Courts are:
A. During Service
i. A medical allowance (ref: Rule 10 of The Federal
Service Medical Attendance Rules, 1990);
ii. A travel allowance (ref: Rules 3(4)(i) and 4(i) of The
Supreme Court Judges (Travelling Allowance)
Rules, 1958); and
iii. The use of a Government maintained residence
and an official car at the residence (Rules 20, and
21 of Supreme Court Judges (Leave, Pension and
Privileges) Order, 1997).
B. After Service
i. A pension to the spouse after the death of the
Judge (ref: Clause 4 of the Fifth Schedule to the
Constitution)
ii. A medical allowance (ref: Rule 10 of The Federal
Service Medical Attendance Rules, 1990);
iii. The services of a driver and an orderly (ref: Rule 25
Supreme Court Judges (Leave, Pension and
Privileges) Order, 1997); and
iv. 3000 free local telephone calls per month, 2000
units of electricity and 25HM3 of gas per month,
free supply of water and 300 litres of petrol per
month (ref: Rule 25 Supreme Court Judges (Leave,
Pension and Privileges) Order, 1997).

54
36. As alluded above, these entitlements of the Judge
which he shares with his family [his spouse and members of
his family who are either dependent on him or with whom he
has financial dealings (“family members”)] also carry certain
responsibilities and obligations. One such obligation is the
duty to enjoy these privileges with dignity, probity and
discretion. Apart from the material benefits enjoyed by a
Judge’s family members during and after his service, they
also receive an advantage from the respect and recognition
extended, through association, by people who interact with
them. In these circumstances, the family members of a Judge
are required to be careful (financially, socially and politically),
moderate and fair in their dealings and exchange with others
so that no controversy arises which may embarrass the
Judge. Although these responsibilities are shared by family
members of all public office holders, they apply with
particular force to family members of Judges as the latter are
expected to be the embodiment of a person who is ‘God-
fearing, law-abiding, abstemious, truthful of tongue, wise in
opinion, cautious and forbearing, blameless, and untouched
by greed’ (ref: Article II of CoC). Accordingly, high standards of
propriety are expected of a Judge and his family members.
This is precisely why in a case of impropriety alleged against
the son of a learned Judge, Justice Khilji Arif Hussain

55
observed in Suo Motu Case No. 5 of 2012 (PLD 2012 SC
664) that:
“Page 679: Although family members of

public functionaries are, properly speaking,
not performing State functions, the alleged
facts of this case highlight the necessity of
extreme caution and discretion in their
private and public dealings and conduct.”
37. Generally, every adult individual is recognised in
law as an independent entity. However, different principles
apply in relation to family members of public office holders.
This is because any irresponsible act on the part of a family
member may reflect adversely on the Judge. This approach is
recognised by the Judicial Codes of Conduct of various
countries. The Guide to Judicial Conduct for Australian
Judges states:
“Page 41: …Issues involving a judge’s

relatives, especially close relatives, can give
rise to particularly difficult questions… There
are likely to be situations in which the
activities or careers of relatives attract
consideration of the principles identified in
the Guide, because the situation presents an
issue under the Guide which the judge must
address… The response by a judge to such
matters will depend on the particular
circumstances. Matters affecting a spouse’s
or partner’s career or appointment will, for
example, call for consideration of public
attitudes or perceptions, the kind of activity
the partner engages in, the other persons
present or participating… These are examples
only. In the end, each situation must be
resolved by the judge applying the principles
identified in the Guide. A central issue will
always be whether and how the situation
might reflect adversely on the judge or the
judiciary or might diminish public confidence
in them.”
(emphasis supplied)
56
Taking the connection between a Judge and his family in
financial matters a step closer are the Bangalore Principles of
Judicial Conduct (“Principles”) which were drafted in 2001
and endorsed in 2002 by the Judicial Group on
Strengthening Judicial Integrity (a body consisting of senior
Judges from various legal systems of the world). These
principles were later endorsed by the United Nations
Economic and Social Council on 27.07.2006 in its Resolution
2006/23:
“Resolution
2006/23
Strengthening basic principles of judicial
conduct
………………………………………………………….
1. Invites Member States, consistent with
their domestic legal systems, to encourage
their judiciaries to take into consideration the
Bangalore Principles of Judicial Conduct,
annexed to the present resolution, when
reviewing or developing rules with respect to
the professional and ethical conduct of
members of the judiciary; …”
Under the heading of propriety, Rule 4.7 of the Principles
reads:
“Value 4: PROPRIETY
Principle: Propriety, and the appearance of
propriety, are essential to the performance of
all of the activities of a judge.
………………………………………………………….
4.7: A judge shall inform himself or herself
about the judge's personal and fiduciary
financial interests and shall make reasonable
efforts to be informed about the financial
interests of members of the judge's family.”
57
To remove any doubts about what constitutes the family of a
Judge, the Principles define a Judge’s family to include:
“DEFINITIONS
“Judge’s family” includes a judge's spouse,
son, daughter, son-in-law, daughter-in-law,
and any other close relative or person who is
a companion or employee of the judge and
who lives in the judge's household.”
An obligation similar to the one set out in Rule 4.7 is also
present in Canon 3(C)(2) of the United States Code of Conduct
for Federal Judges. In essence, the above obligations require a
Judge to make reasonable efforts to be aware about the
financial affairs of his family members. This precaution helps
to forewarn him about extraneous influences or vested
interests which can compromise not only his independence
and credibility but also in the words of this Court in Justice
Shaukat Ali’s case (supra) the “purity and honour” of the
institution to which he belongs.
38. At first glance an obligation to remain informed
about the financial affairs of one’s family members seems
archaic because modern jurisprudence emphasises the
protection of the rights of the individual against the State and
society. However, to understand the rationale behind the
obligation on Judges to make reasonable efforts to be
informed about or to watch over the financial affairs of their
family members, one has to understand the nexus of this
obligation with the nature of Judges work and the position

58
they occupy in society. As has been held above, Judges
exercise pre-eminent authority under the law. They
adjudicate disputes between litigants, hold parties appearing
before them accountable and impose liabilities and grant
relief to such parties. With their authority comes an even
greater responsibility to decide cases fairly, independently
and in accordance with law. In such a situation, it is
imperative for a Judge that he should make reasonable efforts
to be informed about the financial interests of his family
members for the simple reason that if a case comes before
him which directly or indirectly involves the pecuniary,
proprietary or other personal interests of any of his family
members, he can recuse himself. Such recusal is a
manifestation of the now well-established principle of law (ref:
Government of N.W.F.P Vs. Dr. Hussain Ahmad Haroon
2003 SCMR 104):
“Page 110: It is an age-old fundamental

principle of law that justice should not only
be done but manifestly and undoubtedly it
should seen to have been done. To achieve
this objective/goal it is of prime importance
that a Judge/person equipped with the
authority of decision should not be having
any sort of personal interest in the outcome
of the matter under issue before him.”
(emphasis supplied)
However, this is not the only object behind imposing such a
burdensome obligation on Judges. Another equally, if not
more, important reason for requiring Judges to be aware of
the financial interests of their family members is that the

59
law’s intent is to prevent a Judge’s family from becoming a
conduit to discreetly influence his opinions and views. This
assures the Judges independence and integrity apart from
safeguarding the institution of the judiciary.
39. Likewise, the recently enacted Foreign Assets
(Declaration and Repatriation) Act, 2018 (“the Act”) also
provides a rationale for imposing such an obligation on
Judges of the Superior Courts. This piece of legislation
provides an advantageous scheme to Pakistani citizens to
disclose their undeclared foreign assets subject to payment of
tax at a nominal rate set out in the Schedule to the Act. The
object of the Act is to bring such assets on record in the
documented tax economy. For obvious reasons, holders of
public office are not eligible to avail this tax incentive. The
significance of this Act for our purposes is that it treats the
assets of the spouse and dependent children and the assets of
the public office holder as identical. A Judge of the Superior
Courts is included in the category of holder of public office.
For ease of reference, the relevant Sections of the Act are
produced below:
“2. Definitions.— (1) In this Act, unless there

is anything repugnant in the subject or
context,-
………………………………………………………….
(h) "holder of public office" means a person
who is or has been, during the preceding ten
years,-
………………………………………………………….
60
(iv) the Chief Justice or, as the case may be, a

Judge of the Supreme Court, Federal Shariat
Court, a High Court or a Judicial Officer
whether exercising judicial or other functions
or Chairman or member of a Law
Commission, Chairman or Member of the
Council of Islamic Ideology;
………………………………………………………….
4. Application.— (1) The provisions of this
Act shall apply to–(a) all citizens of Pakistan
wherever they may be, except holders of
public office, their spouses and dependent
children;”
(emphasis supplied)
40. Accordingly, neither public office holders nor their
spouses and dependent children can avail the benefit of this
scheme. The purpose of such an exclusion is to ensure that
public office holders do not use their family members as a
conduit to whiten their undeclared wealth. There is no relief
in tax amnesty schemes even if the spouse is independent.
This is a legal incident or consequence of being a holder of
public office and introduces an element of transparent
accountability in the financial matters of such officers.
41. Indeed, the Reference alludes to this element of
financial accountability by implying that the London
Properties are benami owned. However, it cites no evidence to
support this contention. Nevertheless, during the course of
his submissions, learned counsel for the petitioner submitted,
after inquiring from his client, that the latter did not gift any
amount of money to his family members during the preceding
tax years. In any case, the elements of benami (or the

61
evidence in support of it) need not be discussed here because
it is not for us to determine at present whether the
petitioner’s family is his benamidar. This is a factual
determination that can only be made by the competent forum
after examining all the evidence. Nonetheless, unless the
source of funding for the London Properties is duly explained
by the petitioner’s family, it will allow the resulting public
controversy to continue which is neither beneficial for the
petitioner in his personal capacity as a Judge nor for the
institution of which he is a part.
42. Therefore, having seen that Judges are not as
insulated from the conduct of their family members as are
ordinary private citizens, we need to consider the extent of the
obligation on Judges to be aware of the financial interests of
their family members. Both the UN Resolution 2006/23
(endorsing the Principles) and the United States Code of
Conduct simply state that Judges need to make reasonable
efforts to be informed about the financial interests of their
family members. However, neither elaborate upon the scope
of this obligation. Consequently, its ambit needs to be
determined. To begin with, Oxford Dictionary has defined the
term ‘informed’ in the following manner:
“Oxford Dictionary:
Informed: Having or showing knowledge of a
subject or situation.”
62
It, therefore, becomes clear that Judges are supposed to have
knowledge of the financial interests of their family members.
However, if they do not, then they are expected to make
reasonable efforts to acquire such information, more so when
they are questioned by a competent forum to explain the
financial interests of their family members. What constitutes
‘reasonable effort’ on the part of Judges will no doubt depend
upon the circumstances of each case. However, a plea of lack
of knowledge by a Judge in relation to the financial affairs of
his family members is untenable in light of the general trend
in international practice, the obligations imposed on a Judge
under the CoC and the law relating to public office holders
including Judges. Accordingly, there is a continuing
obligation on a Judge to keep himself informed about the
financial interests of his family members. This view is
consistent with the Preamble of the CoC which emphasises
that Judges of the Superior Courts of the country are role
models for their fellow men and women. Such an elevated
standard of conduct is demanded from Judges so that the
institution of the judiciary enjoys the trust and confidence of
the nation for its integrity, probity, independence and
transparency.
MALA FIDES
43. Having dealt with the preliminary matters arising
out of this petition, we may now consider each plea of the
petitioner in detail. This petition was primarily filed by the

63
petitioner for the purposes of declaring the Reference null and
void. Therefore, the bulk of the submissions of the learned
counsel for the petitioner were centred around the contention
that the filing of the Reference was a colourable and mala fide
exercise of power. He submitted that the whole process was
tainted with malice aforethought. He attributed this to the
petitioner’s judgment in Suo Motu Case No. 7 of 2017 (PLD
2019 SC 318) (“Dharna Judgment”) announced on
06.02.2019. In that case, the petitioner had passed adverse
remarks against the two political parties that are presently
the leading members of the ruling coalition in the Federal
Government: Pakistan Tehreek-e-Insaf (“PTI”) and Muttahida
Qaumi Movement (“MQM”). Additionally, he had also made
critical observations about the Army. The relevant extracts
from this judgment are produced below:
“24: The leadership of TLP must have noted

that despite the daylight slaughter of
innocents on the streets of Karachi on 12th
May, 2007 its principal conspirators and
beneficiaries were not punished. They must
also have noted that when PTI-PAT had
camped in the Red Zone for several months
they had achieved the setting up of a judicial
inquiry commission. Though the findings of
the Inquiry Commission had rebutted PTI's
allegations no adverse consequences
followed. PTI's leadership did not even tender
an apology, let alone clean up the area or pay
to clean and restore it. Instead PTI received a
lot of free publicity.
53: For the reasons mentioned above this
case is disposed of with the following
declarations and directions:
……………………………………………………….…
(15) The Constitution emphatically prohibits
members of the Armed Forces from engaging
64
in any kind of political activity, which

includes supporting a political party, faction
or individual. The Government of Pakistan
through the Ministry of Defence and the
respective Chiefs of the Army, the Navy and
the Air Force are directed to initiate action
against the personnel under their command
who are found to have violated their oath.”
44. Learned counsel argued that this judgment, and
in particular these remarks, angered the ruling coalition. This
could be gathered from the review petitions filed by PTI and
MQM against the Dharna Judgment. Both review petitions
demanded the petitioner’s removal from office under Article
209(5) of the Constitution for committing misconduct. He
asserted that these review petitions were a coordinated
exercise by PTI and MQM to oust the petitioner since they
contained almost verbatim language and were even filed in
Court on the same date. In addition, learned counsel also
cited various other events/actions which he argued
highlighted the mala fides behind the Reference. Briefly these
are:
i. The use of a proxy complainant, Mr. Dogar;
ii. The leaking of the Reference and its contents to the
media;
iii. The derogatory statements made by Mrs. Firdous Ashiq
Awan, Special Assistant to Prime Minister (“SAPM”) on
Information and Broadcasting, about the petitioner;
iv. The haste with which action was taken against the
petitioner after the Dharna Judgment; and

65
v. The charged language used by the AG in his Rejoinder
to the SJC.
45. From the opposing side, learned counsel for the
respondents negated all claims of mala fides levelled by the
petitioner. He submitted that the allegations in their present
form were too vague to satisfy the high threshold of mala fide
and that the petitioner had failed to discharge the burden of
proof. He maintained throughout the course of oral
arguments that the Reference was simply filed to ensure
judicial accountability and that there was no ulterior motive
of the Federal Government. He submitted that he had the
highest respect for the petitioner whom he considered an
elder brother.
46. We have carefully examined the record and the
relevant case-law and have arrived at a conclusion. However,
before we discuss the merits of our decision on this complex
and fiercely debated issue, we would like to first set out what
mala fides actually entail. There is an abundance of case-law
on mala fides rendered by this Court in landmark judgments,
such as the case of Government of West Pakistan Vs.
Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC
14) and Federation of Pakistan Vs. Saeed Ahmed Khan and
others (PLD 1974 SC 151). However, there is still lack of
uniformity in its definition and on the standard of proof that a

66
party needs to satisfy in order to establish its claim of mala
fide.
47. First and foremost, we shall examine the meaning
of mala fide in the legal context. Traditionally, an action
actuated with an ulterior purpose to harm another or benefit
oneself is classified as an act that is malicious or malice in
fact. However, in (relatively) recent times, this Court has
recognised another category of mala fides, namely, mala fide
in law. Even though both are a species of mala fide, yet each
has distinct ingredients and consequences. A recent judgment
of this Court in Said Zaman Khan Vs. Federation of
Pakistan (2017 SCMR 1249) has studied not only the entire
case-law on the subject but has also analysed the essential
yet different ingredients of both mala fide in law and malice in
fact. It would be useful at this stage to reproduce the relevant
portions from the said judgment:
“82: …where any action is taken or order

passed not with the intention of fulfilling its
mandate or to achieve its purpose but is
inspired by a collateral purpose or instigated
by a personal motive to wrongfully hurt
somebody or benefit oneself or another, it is
said to suffer from malice of facts. In such
cases, the seat of the malice or bad faith is
the evil mind of the person taking the action
be it spite or personal bias or ulterior motive.”
“83: …where an action taken is so
unreasonable, improbable or blatantly illegal
that it ceases to be an action countenanced
or contemplated by the law under which it is
purportedly taken malice will be implied and
[the] act would be deemed to suffer from
malice in law or constructive malice. Strict
proof of bad faith or collateral propose in
such cases may not be required.”
67
“90: …The mere allegation that an action has

been taken wrongly is not sufficient to
establish mala fide of facts. Specific
allegations of the collateral purpose or an
ulterior motive must be made and proved to
the satisfaction of the Court.”
48. The crux of our analysis will be focused on malice
in fact since the petitioner has primarily levelled allegations of
ulterior motives against the respondents. However, to present
a complete picture of mala fides, two general points of
importance from the above quoted observations need to be
stated. First, that apart from the generally recognised
category of actions driven by a foul personal motive described
here as malice in fact, there is another category of reckless
action in disregard of the law termed as mala fide in law. The
first type of mala fide is attributed to a person whereas the
second is levelled against the impugned action. While the
former is concerned with a collateral purpose or an evil
intention to hurt someone under the pretence of a legal
action, the latter deals with actions that are manifestly illegal
or so anomalous that they lack nexus with the law under
which they are taken. Thus it becomes clear that malice in
fact and mala fide in law have different ingredients, the
former being comprised of factual elements with the latter
being composed of legal features, that need to be established
as such for the respective consequences to ensue. Secondly, it
is clarified that an accusation of mala fide in law involves
more than errors of misreading the record or non-application

68
of the law or lack of proportionality in the impugned action.
Instead, this is a serious allegation of wanton abuse or
disregard of the law. However, when an ulterior motive to
cause harm is proved then the repercussions of malice in fact
follow. It is for this reason that a mere allegation that an
action has been taken wrongly cannot be grounds to hold that
such action suffers from mala fide in law or malice in fact.
This is also consistent with the view propounded in para-90
of the Said Zaman case (supra).
49. The aforementioned discussion confirms that
imputing mala fide of either kind to a person or an action is a
grave accusation. It should not be made lightly but can only
be done when the facts or legal defects justify its use. In the
present case, the petitioner has alleged bad faith and ulterior
motives to the respondents personally. This amounts to a plea
of malice in fact which requires a high standard of proof. The
rationale behind such an approach is that a plea of malice in
fact frustrates the process of justice. After a complainant
establishes malice in fact against a person, the entire
proceeding by the latter is brought to an end. This results in
the merits of the case being ignored. Moreover, the reputation
of the person, against whom an allegation of malice in fact is
made, becomes tarnished and if the said allegation is proved
then his repute is forever ruined. He is made out to be a
vicious individual who harbours ill-intentions against others.
Such are the negative consequences of this plea, if

69
established. This reasoning applies with greater force if such
an allegation is made against senior public functionaries of
the State. Indeed, it was for this very reason that Justice
Muhammad Nawaz Abbasi in his concurring note in the CJP
case (supra) held as follows:
“Page 216: ...In view thereof the mala fide of

fact in the normal circumstances is required
to be established through the positive
evidence and not merely on the basis of
allegations but the personal malice of a
person in official position can be examined in
the context as to whether the action in official
capacity was extraneous and for collateral
purpose which was taken in bad faith or such
an action was in good faith.”
(emphasis supplied)
Similarly, this Court in the Saeed Ahmed Khan case (supra)
observed:
Page 170: male fides is one of the most

difficult things to prove and the onus is
entirely upon the person alleging mala fides
to establish it, because, there is, to start
with, a presumption of regularity with regard
to all official acts, and until that presumption
is rebutted, the action cannot be challenged
merely upon a vague allegation of mal[a]
fides.”
(emphasis supplied)
50. We are in complete agreement with the views
expounded by the members of this Court in the above noted
judgments. An allegation of malice in fact is unlike any other
ordinary allegation. It carries with it a stigma for the accused
which cannot easily be washed away. If a lower standard of
proof for malice in fact is adopted, that would open the

70
floodgates for recalcitrant litigants to make such allegations
against their opposing side to derail the process of justice and
to defame their opponents in Court. Therefore, to limit these
allegations to only genuine claims of malice in fact, we hold
that any person who wishes to raise this plea must prove it to
the satisfaction of the Court on the basis of positive and
cogent evidence.
51. Moreover, there is also an obligation on litigants to
plead the particulars of malice in fact in detail. This, has
already been alluded to in the Saeed Ahmed Khan case
(supra) wherein it was held that vague allegations cannot
establish a plea of malice in fact. Such a duty was imposed
more explicitly on parties by this Court in the Begum Agha
Shorish Kashmiri case (supra). The relevant portion is
reproduced below:
“Page 35: mala fide must be pleaded with

particularity and once one kind of mala fide
is alleged, the detenu should not be allowed
to adduce proof of any other kind of mala
fide. Enquiries are not to be launched merely
on the basis of vague and indefinite
allegations.”
(emphasis supplied)
Accordingly, to raise this plea, it is necessary for the relevant
party to pinpoint the specific incidents/events/actions which
demonstrate the malice in fact of the opposing side.

71
52. With the foregoing background, we shall now
consider each allegation raised by the petitioner to determine
whether it crosses the threshold of malice in fact or not.
53. Firstly, an allegation has been made that this
Reference is a direct consequence of the Dharna Judgment.
The malice in fact is statedly evidenced by the review petitions
filed by the coalition parties in the Federal Government before
this Court. However, the recourse to a review petition is a
lawful remedy granted to litigants by Article 188 of the
Constitution. It, therefore, cannot be used as evidence for
proving the malice in fact of the respondents. As far as the
charged language used against the petitioner is concerned, it
is noted that the review petition filed by PTI, which has been
relied upon by the petitioner, was objected to by the office and
was subsequently withdrawn. Its revision, as accepted by the
learned counsel, does not contain any adverse averments
against the petitioner. With respect to the review petition filed
by MQM, undoubtedly it does contain the resentful remark
that action needs be taken against the petitioner under
Articles III, IV and V of the Code of Conduct. Such language
has no place in any petition before this Court. However, the
fact that the Dharna Judgment criticised the conduct of PTI
and MQM without giving the two political parties a hearing
may have disenchanted some members of the MQM party. Yet
even such a feeling cannot justify the brazen accusations in
the review petition.

72
54. Be that as it may, learned counsel for the
petitioner contended that having availed the appropriate legal
remedy of review, MQM, a minority member of the coalition
government was so reviled by the Dharna Judgment that it
influenced the Federal Government to file a Reference against
the petitioner. This view seems implausible and does not
demonstrate the plea of malice in fact urged by the petitioner.
The Reference is based on Mrs. Isa’s ownership of undeclared
London Properties. With the blemish attached to the
ownership of undeclared foreign properties, such ownership
automatically attracts speculation about its status and
source. In fact, in the year 2017 the SJC took cognizance of a
similar information in the case of another learned Judge who
resigned his office. Even the respondents’ correspondence on
the record shows that the SJC simultaneously received a
Presidential reference on the same ground against another
learned Judge of the High Court. In this perspective the filing
of the present Reference cannot be held to suffer from malice
in fact.
55. Indeed, recourse to a lawful remedy under Article
209(5) of the Constitution cannot be malicious unless for ill-
motives an information alleges wrong or distorted or
exaggerated facts, or seeks relief that is inordinate or
extraneous to the undisputed facts. Furthermore, the
observations in the Dharna Judgment pale in comparison to
the remarks passed by this Court in Air Marshal (Retd.)

73
Muhammad Asghar Khan Vs. General (Retd.) Mirza Aslam
Baig (PLD 2013 SC 1) in which far stronger observations
about our politicians and political system failed to draw any
adverse reaction from the Federal Government against any
Judge. Consequently, no malice in fact is made out on this
ground.
56. The learned counsel for the petitioner next
attacked the initiation of the Reference for being tainted with
malice in fact as the complaint against the petitioner was filed
by Mr. Dogar who has a reputation of planting false stories.
He stated that the respondents did not make even the
slightest effort to check the credibility of Mr. Dogar and
instead accepted his complaint at face value. He submitted
that considering the sensitivity of the matter and the fact that
the complaint was against a sitting Judge of the Supreme
Court, the respondents should at the bare minimum have
scrutinised the antecedents of Mr. Dogar.
57. However, such an argument ignores the general
law of the land that when an information against a person
(whether a public office holder or a private person) is to be
evaluated, it is the substance, veracity and consequence of
the information which matters and not the credibility and
credentials of the informant. Reference in this regard can be
made to the decision in Pakistan Tobacco Company Ltd Vs.

74
Federation of Pakistan (1999 SCMR 382) in which this
Court observed:
“10: We are inclined to hold that the question

whether a particular Constitution petition
filed under Article 184(3) of the Constitution
directly in this Court is maintainable is to be
examined not on the basis as to who has filed
the same, but the above question is to be
determined with reference to the controversy
raised in the Constitution petition, and if the
controversy involves a question of public
importance with reference to the enforcement
of any of the Fundamental Rights the same
will be sustainable.”
58. In the present case, the information supplied by
Mr. Dogar is not denied by the petitioner to the extent of
ownership of the London Properties by Mrs. Isa and her
children. This adds weight to the Court’s observation in the
above cited case. Although in the Pakistan Tobacco case
(supra) this Court was mainly concerned with the
maintainability of a petition filed under Article 184(3) of the
Constitution, we consider that the same principles also apply
to an information filed before the SJC under Article 209(5).
The reason is that the receipt of information from any source
is cognizable by the SJC under Article 209(5) of the
Constitution and is sufficient to sustain an inquiry against a
Judge of the Superior Courts. The word ‘any’ means that the
antecedents of the informant are irrelevant unless the
information is false, concocted, distorted, exaggerated or
seeks relief that is excessive in relation to the accepted facts.

75
As previously noted, the underlying information in the
Reference to the extent of ownership of the London Properties
by Mrs. Isa and her children is not disputed by the petitioner.
Therefore, in such circumstances the background of the
informant becomes insignificant. As a result, even this
ground does not support the plea of malice in fact raised by
the petitioner.
59. The next objection of the learned counsel for the
petitioner was about the leaking of the Reference and its
contents to the media. He urged that the disclosure was
engineered by the respondents which constituted a violation
of Rule 13 of the 2005 Rules. This provision is reproduced
below:
“13. Proceedings of the Council not to be

reported:--
(1) Proceedings of the Council shall be
conducted in camera and shall not be open to
public.
(2) Only the findings of the proceedings shall
be allowed to be reported.
(3) Proceedings of the meetings of the Council
or any other steps that Council may take
shall not be reported, unless directed
otherwise.”
There is no cavil with the proposition that a reference filed
against a Superior Court Judge has to be kept confidential.
The rationale for adopting such a course of action has been
provided in this Court’s judgment in Justice Shaukat Aziz
Siddiqui and others Vs. Federation of Pakistan (PLD 2018

76
SC 538). For convenience, the relevant portion is reproduced
below:
“80: …Thus, we must attempt to discover the

purpose and true intent of paragraph 13 of
the SJC Procedure of Enquiry 2005, which
alone would hold the key to its proper
contextualized interpretation. Various
countries of the world have chosen either of
two paths with regard to the process of
accountability of Superior Court Judges.
Broadly speaking, one path is through an
open process including through a proceeding
before a forum outside the judiciary e.g.
Parliament in the full gaze of the public eye
while the other path is of an insulated
process of being dealt with by one's own
peers. Our Constitutional Dispensation in
principle has adopted the latter course of
action. The framers of the Constitution of
1973 appear to have made a value judgment
that such a course of action is best suited to
our societal and cultural ethos, where
allegations are routinely made against all and
sundry without any qualms about the
truthfulness or otherwise of such allegations.
Perhaps the framers of the Constitution may
have been inspired, in this behalf, by the
mystical saint of Kasur who said that we live
in the "Age of Suspicion", where people
immediately believe the worst about others. It
is said that the Judges like Caesar’s wives
ought to be above suspicion. An allegation no
matter how baseless, if permitted to be made
public, such Judge and his capacity to
dispense justice would be irreparably
prejudiced.”
(emphasis supplied)
60. The reasoning in the Shaukat Aziz case (supra)
has also been echoed by the learned counsel for the petitioner
who has lamented the loss of reputation suffered by the
petitioner and the harassment which he and his family have
had to endure. One can appreciate the ordeal that the
petitioner and his family may have lived through from the
77
speculative media coverage on the Reference. Nevertheless, to
hold any particular respondent accountable for revealing the
details of the Reference, there needs to be at least some
material on record that connects the leaks to one or more of
the respondents. The chronology of events reveal that the
Reference was signed on 20.05.2019 by the President; and it
was filed by the Secretary Law with the SJC on Thursday,
23.05.2019. However, it was only on Tuesday, 28.05.2019
that news of the Reference broke out on social media, and by
29.05.2019 most news channels and papers in the country
had reported on it. It was also on 28.05.2019 that the
petitioner wrote the first of his letters to the President, inter
alia, requesting a copy of the Reference. This letter too was
leaked the next day on the media (as was the second letter
written by the petitioner on 03.06.2019). In this chain of
events, another occurrence came to light as disclosed in
paragraph 43 of the petition. Shortly after the filing of the
Reference, a meeting took place between the petitioner and
the (then) Chairman of SJC (former Chief Justice of Pakistan).
The petitioner’s application CMA No 7931/19 quotes in its
paragraph 20 an order by the SJC dated 19.08.2019 passed
in another proceedings against the petitioner:
“Pages 20-21: The above mentioned meeting

of the respondent-Judge with the Chief
Justice of Pakistan shows that the
respondent-Judge not only knew about filing
of the Reference against him by the President
but also about the actual contents thereof
and the allegations leveled therein before he
78
had started writing successive letters to the

President on the subject professing his
ignorance about the same.”
61. The petitioner has not disputed the aforesaid
meeting being held prior to 28.05.2019. As a result, it is clear
that the petitioner had read the Reference and was aware of
the allegations made against him. Therefore, before the
Reference was leaked, probably on 28.05.2019, only a
handful of individuals knew of its existence: the Law Minister,
AG, President, PM, (then) Chairman SJC, (then) Secretary
SJC and the petitioner himself. The date of the media report
about the Reference is significant. Which fresh event triggered
the sudden disclosure of the Reference is not evident from the
record. Therefore, although the allegation made against the
respondents raises suspicion, it is still unsupported by any
evidence. Consequently it cannot suffice to conclusively hold
that either one or more of the respondents leaked the
Reference to the media. Since we cannot on the basis of
speculations and suspicions determine who leaked the
Reference, therefore no finding with respect to its disclosure
and hence of malice in fact against any of the persons who
were aware of its contents can be recorded. Be that as it may,
learned counsel for the petitioner also raised issue with Mrs.
Firdous Ashiq Awan’s press conference on 30.05.2019. He
criticised the derogatory manner in which she discussed the
Reference against the petitioner and argued that this was
irrefutable proof of the respondents’ ill-will against the

79
petitioner. We are in agreement with learned counsel that the
press conference was in bad taste. Even though, by
30.05.2019 the news about the Reference was already in the
public domain, Mrs. Awan used the information for political
point scoring. It is not the petitioner’s case that she had any
role in preparing or framing the Reference. Therefore, her
press conference cannot have any consequences vis a vis the
Reference. However, even if the poor choice of words used by
Mrs. Awan cannot on their own amount to malice in fact,
their hostile and scandalous content during the press
conference prima facie shows that she was deriding the
petitioner (or was at least attempting to). By such conduct
she violated not only Rule 13 of the 2005 Rules but also
prima facie breached Article 204 of the Constitution by
committing contempt against a sitting Judge of the Supreme
Court. Consequently, she should be made answerable for her
conduct under Article 204(2)(b) of the Constitution through
independent proceedings.
62. Learned counsel for the petitioner next objected to
the unusual despatch with which the respondents
investigated, prepared and filed the Reference against the
petitioner. He submitted that the complaint dated 10.04.2019
was received by Chairman ARU on 12.04.2019. Within four
days of its receipt, Chairman ARU met the Law Minister who
authorised the investigation against the petitioner. In about a
month the entire investigation was completed, with

80
10.05.2019 being the busiest day. Thereafter, in ten days, on
20.05.2019 the President had signed the Reference. Learned
counsel submitted that the completion of the investigation
and the preparation of the Reference against the petitioner in
such a short period of time strongly indicated ulterior motives
on the part of the respondents. With respect to the learned
counsel, we are unclear as to how this timeline conveys any
ill-motives of the respondents in the matter. The information
received by Chairman ARU in the PM’s Secretariat was not
any routine complaint. It was against a sitting Judge of the
Supreme Court and thus received prompt attention from the
ARU and the concerned officers of the Federal Government. It
must also be said that in such sensitive matters, expeditious
action is to be preferred so that if the information is baseless
it can be filed without delay. Allowing the affair to linger may
expose the process to untoward manipulation and may
prejudice the institution and the learned Judge under
complaint. But even if we disregard the foregoing view, the
crucial question is how does departmental alacrity in the
finalisation of the Reference demonstrate malice in fact of the
respondents. There is no evidence of falsity of the material
collected or of misrepresented facts being alleged by the
respondents. Their expedition has no doubt resulted in legal
errors (which are discussed below). However, this is still no
ground for imputing malice in fact against the respondents.

81
Therefore, this allegation of the petitioner is also without
merit.
63. Finally, learned counsel for the petitioner took
strong objection to the language used by the AG in his written
Rejoinder to the petitioner’s Preliminary Response filed before
the SJC. He stated that this was clear evidence of the AG’s
hatred for the petitioner. He read out portions from the
Rejoinder in Court, some of which are quoted in the
petitioner’s pleadings. A few of these are reproduced below:
“It seems that the Respondent has two

mental issues. Firstly, he has a self-
persecution phobia; and secondly he
considers himself a legend in his own mind,
fully bestowed with honesty, integrity and
competence and considers the rest of the
world as dishonest and incompetent.”
“the Respondent craves for self-praise and
cheap publicity.”
“the Respondent appears to be drenched in
self-praise.”
We would like to record our disapproval of the language used
by the AG for a Judge of the Supreme Court. That being said,
the brazen language is not used in the Reference but in the
Rejoinder which answers the objections of the petitioner to
the Reference. These objections include criticism of the AG’s
competence which can be found in the Preliminary Response.
The AG may have made his harsh remarks about the
petitioner in retaliation to the prickly comments made about
him. Be that as it may, since the remarks, notwithstanding
their indiscretion, were made in the Rejoinder as opposed to

82
in the Reference, these did not form part of the record before
the President. As a result, they did not influence the decision
of the President to forward the Reference to the SJC for an
inquiry. Therefore, being subsequent to the preparation of the
Reference and its summary, the AG’s remarks cannot be said
to reveal malice in fact in the filing of the Reference.
64. Our conclusion about the absence of malice in fact
in the filing of the Reference is reaffirmed by the petitioner’s
admission that the London properties are indeed owned by
his wife and children. This is because it is now well-
established in other areas of the law that an allegation of
malice in fact gets defeated if it is proved that a complaint
levelled against a person is true. Accordingly, we hold that the
allegations of malice in fact levelled by the petitioner against
the respondents fail.
CONSTITUTION OF ASSETS RECOVERY UNIT
65. Learned counsel for the petitioner next criticised
the collection of evidence coordinated by the ARU for being
unknown to the laws of Pakistan. He stated that the ARU
finds no mention in the Constitution, any Act of Parliament or
even the Rules of Business, 1973 (“ROB”). Instead, he
submitted the ARU was created by the issuance of a
Notification dated 06.11.2018 which the Government has not
published in the Gazette. He contended that the entire
functioning/working of the ARU was shrouded in a cloak of

83
secrecy, notwithstanding that it seemed to be vested with
unlimited powers that infringed upon the fundamental rights
of the people of Pakistan.
66. Conversely, learned counsel for the respondents
submitted that the ARU has been legally constituted. To
support his contention he relied on two judgments of this
Court reported as 2018 SCMR 574 and PLD 2018 SC 686
(“Foreign Currency Accounts Cases”), which he argued
provided the impetus for creating the ARU to act as a
coordinating agency between the different finance related
institutions of the country to exercise oversight on economic
matters of public importance. The purpose and object of the
ARU, he urged, was to recover unlawful assets abroad which
may have been created via funds obtained through money
laundering, corruption or tax evasion. He relied on Rule
16(1)(m) of ROB read with the Notifications issued by the
Cabinet Division to demonstrate that ARU had been created
with the approval of the Federal Government in accordance
with law.
67. In our considered view, the Foreign Currency
Accounts Cases provide a backdrop for examining the legality
of the ARU. These judgments noticed that a staggering
amount of US$ 15.23 billion was transferred overseas, in the
financial year 2016-2017, from private bank accounts
without obtaining any explanation or proof that the remitted

84
funds had been lawfully earned and taxed. Such transfers
were in addition to the funds that may have been sent
through covert hundi and hawala instruments. The
detrimental effect on the national economy of such transfers
cannot be exaggerated. These negative effects were also
recognised by this Court in the Foreign Currency Accounts
Case reported as PLD 2018 SC 686:
“5: …Clearly, both types of outflows have a

huge impact on the stability of the foreign
exchange reserves of the country and
adversely affect the exchange rates of the
Pakistani Rupee. Also as a result, the
national economy can become vulnerable to
pressure due to foreign currency obligations
of the State; can suffer undue and disruptive
inflation and can drain the exchequer of
substantial amounts of tax on account of
escaped income and wealth.”
However, it must be observed here that the judgments in
these cases did not specifically state the need for a body like
the ARU to be created. The relevant extract from the
judgment reported as PLD 2018 SC 686 is produced below:
“11: Having said that, it is observed that any

measures taken by the Federal Government
in the public interest to protect the foreign
exchange reserves of the country and to bring
the hitherto undeclared foreign assets within
the tax net are welcomed by the Court.
Nevertheless, there are other deficiencies of
the current tax laws and in the regulatory
framework for the holding and transfer of
foreign exchange that promote the
accumulation of undeclared foreign assets
and corresponding income. These have been
highlighted by the Committee but remain
unaddressed by the Federal Government.
They require careful attention and
deliberation by the concerned authorities. Let
the Federal Government, FBR and the State
85
Bank of Pakistan state their respective

positions about these matters pointed out by
the Committee and indicate if any reform is
proposed to correct or remedy the same.”
(emphasis supplied)
68. It can thus be observed that the Foreign Currency
Accounts Cases did not consider or decide the legality of the
status of the ARU established vide Notification dated
06.11.2018. At best, these judgments support reform in the
tax and regulatory mechanism of foreign currency accounts
and enhanced monitoring of foreign exchange transfers from
Pakistan. Therefore, to determine the legality of ARU’s
creation, one has to consider whether the requisite legal
actions and procedures for its establishment have been
adopted by the person(s) competent and authorised to do so
under the law.
69. In this context, learned counsel for the petitioner’s
primary grievance against the ARU was that no Act of
Parliament had created it or conferred powers on it therefore
it was void ab initio. However, this argument of the learned
counsel appears to misconstrue the scope of Executive power
under the Constitution. The nature and ambit of such power
has been considered by the Indian Supreme Court in the case
of Rai Sahib Ram Jawaya Kapur and others Vs. The State
of Punjab (AIR 1955 SC 549):
“14: It may not be possible to frame an

exhaustive definition of what executive
function means and implies. Ordinarily the
86
executive power connotes the residue of

governmental functions that remain after
legislative and judicial functions are taken
away.
15: The executive function comprises both the
determination of the policy as well as carrying
it into execution. This evidently includes the
initiation of legislation, the maintenance of
order, the promotion of social and economic
welfare, the direction of foreign policy, in fact
the carrying on or supervision of the general
administration of the State.”
(emphasis supplied)
Para-14 of the above noted judgment was approved by this
Court in Messrs Mustafa Impex, Karachi Vs. The
Government of Pakistan (PLD 2016 SC 808 at para-69).
70. It can be noticed from these rulings that ordinarily
executive functions involve the execution of law and policy
and the supervision of the general administration of the State.
As already stated above, the ARU is a coordinating agency
which brings under one umbrella the competent statutory
authorities to stem the menace of tax evasion, money
laundering and corruption in our country. Accordingly, the
ARU is essentially executing the policy of the State to curb
financial crimes in the country. It is therefore an executive
office, in particular an ‘Attached Department’ of the Cabinet
Division, performing executive functions. Having such status,
it does not need the backing of an Act to grant validity to its
creation and actions as required by Article 4 of the
Constitution. Evidence for this can be found in the ROB:
“2. Definitions.— (1) In these rules, unless

there is anything repugnant in the subject or
context:
87
………………………………………………………....
(ii) "Attached Department" means a
Department which has direct relation with a
Division and has been declared as such by
the Federal Government;”
71. A perusal of Rule 2(1)(ii) makes it clear that for
any ‘Attached Department’ to exist and function, it needs to
have a direct relation with a Division and has to be declared
by the Federal Government as an ‘Attached Department.’ The
material on record shows that these two essential steps were
taken in relation to the creation of ARU. The first of such
documents, demonstrating the procedure followed for
constituting the ARU as an ‘Attached Department,’ is the
Summary for the Cabinet dated 11.09.2018:
“CABINET DIVISION
SUBJECT: __ ASSETS RECOVERY UNIT
(ARU)
………………………………………………………….
3. In view of the above, and in pursuance of
earlier decision of the Cabinet [05.09.2018],
the following is submitted for consideration
and approval of the Cabinet:
………………………………………………………….
c. Placement of ARU, under Cabinet Division,
to be housed in the Prime Minister’s House;”
This was followed by the Notification dated 19.09.2018:
“CABINET SECRETARIAT
CABINET DIVISION
………………………………………………………….
No. 643(S)/2018-Cab. The Cabinet, in its
meetings held on 5th and 13th September,
2018, vide cases N0. 546/35/2018 and No.
88
556/36/2018, decided to establish the

Assets Recovery Unit (ARU) under Cabinet
Division, to be housed in the Prime Minister’s
Office, Islamabad.”
The above Notifications prove that the creation of the ARU as
an ‘Attached Department’ of the Cabinet Division was
approved by the Cabinet itself. Article 90 of the Constitution
establishes that the Cabinet with the PM as its head is the
Federal Government. It reads as follows:
“90. The Federal Government:
(1) Subject to the Constitution, the

executive authority of the Federation shall
be exercised in the name of the President
by the Federal Government, consisting of
the Prime Minister and the Federal
Ministers, which shall act through the
Prime Minister, who shall be the chief
executive of the Federation.”
(emphasis supplied)
Consequently, it becomes evident that the approval for the
creation of the ARU was given by the Federal Government. As
a result, the two-fold requirement listed in Rule 2(1)(ii) of the
ROB for the constitution of ARU as an ‘Attached Department’
has been satisfied in the present case.
72. Be that as it may, learned counsel’s main
objection against the ARU was its alleged interference with
the rights and liabilities of individuals in the absence of any
statute granting it such a power. However, the Notification
dated 06.11.2018 issued by the Cabinet Division shows that

89
the ARU does not act directly but instead operates through its
members who have been borrowed from various statutory
bodies of the country. These include:
i. The Federal Investigation Agency (“FIA”);
ii. The National Accountability Bureau (“NAB”);
iii. The FBR; and
iv. The State Bank of Pakistan (“SBP”).
As a result, the ARU is manned primarily with individuals
whose powers and jurisdiction are exercised under a
statutory regime. Accordingly, the ARU is simply a
coordinating office attached to the Cabinet Division with the
main purpose of facilitating the collaborative efforts of the
relevant statutory functionaries. It therefore cannot be
accused of adversely affecting the rights of any Pakistani
citizen without the backing of law. This is made clear by the
composition of the ARU and its terms of reference (“TORs”)
which are also set out in the above noted Notification dated
06.11.2018:
“CABINET DIVISION
………………………………………………………….
NOTIFICATION
No. F.32/CM/2018-Cab. The Cabinet, in its
meeting held on 5th September, 2018, vide
case No.546/35/2018, approved the
Establishment of Assets Recovery Unit for
implementation of Recovery of Unlawful
Assets Abroad.
2. The composition and terms of reference of
Assets Recovery Unit shall be as follows:
90
A. Composition:
1. SAPM on Accountability. Chairman
2. Senior Officer from Federal Member
Investigation Agency (FIA).
3. Senior Officer from National Member
Accountability Bureau (NAB).
4. Senior Officer from Federal Board Member
of Revenue (FBR).
5. Senior Officer from State Bank of Member
Pakistan (SBP).
6. 2/3 Experts from private sector Members
with expertise in forensic
accounting, anti-money
laundering, international criminal
laws and transactional legal
systems.
7. Any other officer/agency/ firm/ or
individual if so required by the
Unit on temporary or permanent
basis may be co-opted by the
Unit.
B. Terms of Reference:
………………………………………………………….
3. Assets Recovery Unit designated officers
from relevant organization/department/other
law enforcement agencies like NAB, FIA or
FBR shall with consultation/support of
relevant LEA, trace/detect and pursue
repatriation of unlawful assets from abroad.
For this purpose, ARU may seek
help/assistance of foreign governments/
firms/lawyers or individuals if so required.”
TOR 3 confirms that when it comes to dealing with the assets
of Pakistani citizens, the ARU is only authorised to act
through its designated officer/member from the relevant
department/agency. Since these designated officers/members
are simultaneously serving in statutory agencies, they are
vested not only with the powers granted by the relevant
statute governing their agency but are also bound by the
procedural safeguards and obligations laid down in such a
statute. As a result, any action attributed to the ARU in

91
relation to the assets of Pakistani citizens is taken through
competent authorities strictly in accordance with the law.
73. As far as the issue of non-publication of the
Notification dated 06.11.2018, setting out the composition
and TORs of the ARU, is concerned, this Court in the case of
Saghir Ahmed Vs. Province of Punjab (PLD 2004 SC 261)
has observed:
“9: It depends on the language employed in a

particular statute as to whether the
provisions regarding publication of a
statutory instrument or a notification in the
Official Gazette are to be treated as
mandatory or directory.
10. Even otherwise, the provisions of a
statute for the publication or a notification in
official Gazette are generally regarded by the
Courts as directory and where their strict
non-compliance does not provide any
consequences. The legal certainty also
requires that ordinarily a statutory
instrument should not be treated as invalid
because of a failure on the part of public
functionaries to publish it in the official
Gazette. There may be many things done on
the basis of such an instrument. It would
seem unfortunate were these things held to
be invalid if it were at some stage discovered
that there had been a failure by a public
authority to go meticulously by the manner
and mode of publication of an instrument or
notification in the Official Gazette. …
11. However, no hard and fast rule of
universal application can be laid down on the
legal effect of non-publication of a notification
in the official Gazette. In certain cases,
keeping in view the nature and object of a
particular statute and to carry out the
legislative intent, the provisions for the
publication of a notification in the official
Gazette can be treated to be mandatory in
nature where rights or liabilities of other
persons are involved. …”
(emphasis supplied)
92
The above quoted para-10 was subsequently affirmed by this
Court in Bahadur Khan Vs. Federation of Pakistan (2017
SCMR 2066 at para-12). What can be noticed from the quoted
passage is that in ordinary circumstances, the non-
publication of a Notification in the gazette does not affect its
validity except for in limited situations such as when a
statute makes publication in the gazette mandatory or where
the rights and liabilities of other persons are involved. In the
present case before us there is no statute which makes
publication of the Notification creating the ARU mandatory.
Furthermore, wherever the rights and liabilities of citizens are
affected, the existing statutory mechanisms are utilised to
ensure actions taken are in accordance with the law. Even in
the Reference against the petitioner, the material on record
demonstrates that all intrusive actions were taken by officers
belonging to the relevant statutory agencies. For example, the
tax records of the petitioner were examined by the Assistant
Commissioner (Inland Revenue), and the identification
documents and travel records were accessed by Director FIA.
Therefore, since none of the exceptions to non-publication
apply to the facts of the present case, we find that there is no
illegality that persuades us to hold that the publication of the
Notifications dated 20.08.2018 and 06.11.2018 in the gazette
was mandatory.
74. Next, learned counsel for the petitioner attacked
the appointment of Mirza Shahzad Akbar as SAPM on

93
Accountability. In response, learned counsel for the
respondents relied on Rule 4(6) and serial number 1A of
Schedule V-A of the ROB to defend the said appointment. For
the sake of convenience, these are reproduced below:
“4. Organization of Divisions.

………………………………………………………….
(6): There may be a Special Assistant or
Special Assistants to the Prime Minister with
such status and functions as may be
determined by the Prime Minister.
………………………………………………………….
Schedule V-A
[Rule 15(1)(g)(h)]
LIST OF CASES TO BE SUBMITTED TO
THE PRIME MINISTER FOR HIS ORDERS
………………………………………………………….
1A. Appointment, resignation and removal of
Special Assistants to the Prime Minister and
of persons holding the Minister's status
without Cabinet rank, determination of their
salaries, allowances and privileges.”
It may be noticed from these provisions that they give the PM
the power to appoint a Special Assistant with such status and
functions as he desires. However, learned counsel for the
petitioner disputed this assertion and questioned the
appointment of Mirza Shahzad Akbar, Respondent No. 8, as
SAPM by a simple Notification dated 20.08.2018, which reads
as follows:
“No. 2-8/2018-Min-I. – In terms of rule 4(6)

of the Rules of Business, 1973 read with
serial number 1A of Schedule V-A of the said
Rules, the Prime Minister has been pleased to
appoint, with immediate effect, Mirza
Shahzad Akbar as Special Assistant to the
94
Prime Minister on Accountability, with the

status of Minister of State.”
He lamented that nothing was known about the educational
qualifications or expertise of Mirza Shahzad Akbar. Even the
process followed to select him from among other qualified
persons as SAPM on Accountability was non-transparent.
These questions of the learned counsel are addressed in this
Court’s judgment dated 26.12.2018 given in Muhammad Adil
Chattha Vs. Federation of Pakistan (Constitution Petition
No. 63 of 2018). The relevant portion at paragraph 14 is
reproduced below:
“14: In view of the fact that the qualifications

and antecedents for appointment of a Special
Assistant to the Prime Minister are neither
mentioned in the Constitution nor in the
Rules of Business. It appears to have been
left at the discretion of the Prime Minister of
Pakistan on the basis of his subjective
assessment about the ability of a person to
perform the functions that the Prime Minister
requires him to perform for such
appointment...”
75. The above noted observations were made in the
context that no substantive provisions of the Constitution
create the office of SAPM. However, the said office is
mentioned in Article 260 of the Constitution as one of the
posts that is excluded from the definition of ‘Service of
Pakistan.’ Therefore, at present the post of an SAPM is a
political appointment. Accordingly, the said appointment is
made in the discretion of the PM and is not regulated by

95
statute. This aspect is highlighted by Rule 4(6) and serial
number 1A of Schedule V-A of the ROB. However, it was
observed in the Adil Chattha case (supra) that the Court will
interfere if the PM exercises his discretionary power
‘arbitrarily, unlawfully or in a fanciful manner,’ or if the
appointment of a person as SAPM suffers from ‘cronyism,
nepotism or political favour.’ In such a situation the
appointment will be struck down under Article 199(b)(ii) of
the Constitution. As a result, there is a judicial check on the
exercise of the PM’s discretion. Nonetheless, this relief cannot
be claimed in collateral proceedings, a principle which has
been affirmed many a times by this Court. For instance, in
the case of Qazi Hussain Ahmad Vs. General Pervez
Musharraf (PLD 2002 SC 853) it was observed:
“73: … No challenge muchless effective was

thrown to the assumption of office of
President by him and even in these petitions
the challenge has been made only
peripherally and collaterally while challenging
the Referendum Order. It is well-settled that
a writ of quo warranto cannot be brought
through collateral attack. Such a relief has to
be claimed directly. We are fortified in this
behalf by the judgment of this Court in Pir
Sabir Shah's case (PLD 1994 SC 738). Not
only in this case but also in other cases it
was held that for orderly and good
governance validity of the appointment of
incumbent of public office cannot be
impugned through collateral proceedings.”
(emphasis supplied)
The learned counsel for the petitioner has neither challenged
the appointment of Respondent No. 8 as SAPM Accountability

96
in separate proceedings under Article 199(b)(ii) of the
Constitution nor has he placed any material on record which
disqualifies Mirza Shahzad Akbar from being appointed to
this office. Therefore, without proof of illegal or arbitrary
exercise of discretion by the PM, we cannot interfere with his
decision on this matter.
76. In the light of our discussion, we declare that
there is neither any fatal defect in the creation of ARU nor is
there any unlawfulness in the appointment of Mirza Shahzad
Akbar as SAPM Accountability.
SURVEILLANCE AND ILLEGALLY COLLECTED EVIDENCE
77. The learned counsel for the petitioner also
criticised the respondents’ method of collection of evidence in
the present case. He stated that the tax and property records
of the petitioner and his family were accessed to frame the
Reference against the petitioner, a fact admitted by the
respondents. These searches he alleged were a breach of the
petitioner’s and his family’s right to privacy enshrined in
Article 14(1) of the Constitution and thus amounted to covert
surveillance. He, therefore, urged this Court to hold that such
evidence had become inadmissible in all related future
proceedings. Conversely, learned counsel for the respondents,
without prejudice to his denial that there had been any
illegality in the collection of evidence in the instant case, cited

97
case-law from Pakistan, United Kingdom and India to
demonstrate that the method of collection of evidence,
irrespective of whether it was secured lawfully or otherwise,
was no bar to its admissibility. Specifically, he relied on the
following cases: Messrs Bisvil Spinners (PVT) Ltd Vs.
Pakistan (PLD 1992 SC 96), Kuruma v The Queen ([1955]
AC 197) and R.M Malkani Vs. State of Maharashtra (AIR
1973 SC 157).
78. At the very outset it becomes clear that this plea of
the petitioner raises two distinct issues: surveillance and
illegal collection of evidence. To have a coherent discussion of
each aspect of the petitioner’s plea, the two issues are dealt
with separately. Before arriving at any decision on the
allegation of covert surveillance pressed by the petitioner, it
needs to be understood what actions actually constitute
surveillance. A comprehensive definition is not available in
our laws but can be found in Section 48(2) of the UK’s
Regulation of Investigatory Powers Act, 2000:
“48 Interpretation of Part II

………………………………………………………….
(2) Subject to subsection (3), in this Part
“surveillance” includes—
(a) monitoring, observing or listening to
persons, their movements, their
conversations or their other activities or
communications;
(b) recording anything monitored, observed or
listened to in the course of surveillance; and
(c) surveillance by or with the assistance of a
surveillance device.”
98
It may be noticed from the above mentioned provision that
surveillance primarily involves the monitoring or recording of
a person’s movements, conversations or other activities and
communication. However, in the present case the learned
counsel for the petitioner has not produced any evidence
before us which demonstrates that either the petitioner or his
family have been monitored or their communications have
been intercepted in the above manner.
79. In fact, the only proof which learned counsel has
referred to is the admission by the respondents that the tax
and property records of the petitioner and his family have
been accessed from Government and public records. Indeed,
there is no allegation that any information was obtained from
the petitioner’s personal or private records. However, during
arguments learned counsel for the petitioner denied that this
distinction made any difference to his primary contention of
invasion of privacy and unlawful surveillance because of what
is now commonly known as the ‘Marcel principle.’ This
principle has been aptly explained by the UK Supreme Court
in Regina (Ingenious Media Holdings plc) v Revenue and
Customs Commissioner ([2016] 1 WLR 4164):
“17: It is a well established principle of the

law of confidentiality that where information
of a personal or confidential nature is
obtained or received in the exercise of a legal
power or in furtherance of a public duty, the
recipient will in general owe a duty to the
99
person from whom it was received or to whom

it relates not to use it for other purposes”
Nevertheless, it may also be noted that the ‘Marcel Principle’
is not absolute and can be deviated from. In fact, the House of
Lords in Hamilton v Naviede ([1995] 2 AC 75) conceded this
point when Lord Browne-Wilkinson speaking for the Court
held:
“Page 102: In my view, where information has

been obtained under statutory powers the
duty of confidence owed on the Marcel
principle cannot operate so as to prevent the
person obtaining the information from
disclosing it to those persons to whom the
statutory provisions either require or
authorise him to make disclosure.”
The petitioner’s case ignores the above mentioned
qualification to the ‘Marcel Principle.’
80. Starting first with Section 216(1) of the Ordinance:
this provision declares the tax records of taxpayers to be
confidential. However, the same Section also contains the
exceptions to this general rule. For our purposes, the
exception found in Section 216(3)(p) is most relevant. It is
produced below for reference:
“216. Disclosure of information by a public

servant
…………………………………………………………
(3) Nothing contained in sub-section (1) shall
preclude the disclosure of any such
particulars –
…………………………………………………………
(p) as may be required by any officer or
department of the Federal Government or of a
Provincial Government for the purpose of
100
investigation into the conduct and affairs of

any public servant, or to a Court in
connection with any prosecution of the public
servant arising out of any such investigation;”
(emphasis supplied)
The learned counsel for the petitioner has strongly resisted
the application of Section 216(3)(p) ibid to the facts of this
case. He submitted that the petitioner is not a public servant
for the purposes of the Ordinance. Therefore, his tax records
could not be sought by an officer of the Federal Government
for the purposes of an investigation. To fortify his submission,
he stated that a Judge of the Supreme Court did not fall
within the definition of “Service of Pakistan” laid down in
Article 260 of the Constitution. For convenience, this
provision is reproduced below:
“260 Definitions. (1) In the Constitution,

unless the context otherwise requires, the
following expressions have the meaning
hereby respectively assigned to them, that is
to say, "Service of Pakistan" means any
service, post or office in connection with the
affairs of the Federation or of a Province, and
includes an All-Pakistan Service, service in
the Armed Forces and any other service
declared to be a service of Pakistan by or
under Act of [Majlis-e-Shoora (Parliament)]
or of a Provincial Assembly, but does not
include service as Speaker, Deputy Speaker,
Chairman, Deputy Chairman, Prime Minister,
Federal Minister, Minister of State, Chief
Minister, Provincial Minister [,Attorney-
General, [Advocate-General,] Parliamentary
Secretary] [, Chairman or member of a Law
Commission, Chairman or member of the
Council of Islamic Ideology, Special Assistant
to the Prime Minister, Adviser to the Prime
Minister, Special Assistant to Chief Minister,
Adviser to a Chief Minister] or member of a
House or a Provincial Assembly;”
(emphasis supplied)
101
81. It may be observed from Article 260 quoted above
that Judges of the Superior Courts are not explicitly included
in the ‘Service of Pakistan.’ However, the essential features of
such service are provided in Article 260 ibid. These have been
interpreted by this Court to include the office of Judges of
Superior Courts within the category of ‘Service of Pakistan.’
Reliance is placed on the case of Asghar Khan (supra)
wherein it was observed:
“78: Besides the office of the President, the

Judges and Chief Justices of the superior
courts are also included in the scope of
service of Pakistan by failing to make
reference to them among the exclusions from
service of Pakistan in Article 260.”
(emphasis supplied)
Accordingly, Judges of the Supreme Court are engaged in the
‘Service of Pakistan.’ However, the exception to the
confidentiality of tax records under Section 216(3)(p) of the
Ordinance is available only where disclosure is required for
the purposes of an ‘investigation into the conduct and affairs
of any public servant by any officer or department of the
Federal Government.’ Therefore, it needs to be determined
what the terms ‘investigation’ and ‘public servant’ mean. If we
examine the expression ‘public servant’ first, it becomes clear
on a perusal of the Ordinance that this word has not been
defined in the said law. However, it does find mention in the
tax statutes that preceded the Ordinance, namely, the Income

102
Tax Act, 1922 and the Income Tax Ordinance, 1979
(“predecessor tax laws”). Section 2(13) of the former and
Section 2(36) of the latter described the term ‘public servant’
to have the same meaning as that ascribed to it by the
Pakistan Penal Code, 1860 (“PPC”). On a perusal of the PPC,
it becomes clear that the predecessor tax laws are referring to
Section 21 of the PPC which reads:
““21. “Public Servant” The words "public

servant" denotes a person falling under any of
the descriptions herein after following,
namely:-
First: [omitted]
Second: Every Commissioned Officer in the
Military, Naval or Air Forces of Pakistan while
serving under the Federal Government or any
Provincial Government;
Third: Every Judge;”
82. A Judge is an appointee under law of a Court or a
Tribunal. Such law may be enacted either by the Federation
or the Province. Section 21 of PPC declares every Judge in
Pakistan to be a public servant. Therefore, a person holding
judicial office is a public servant. Since Judges of the
Superior Courts are appointed under the Constitution, it is
only logical that the definition of public servant in Section 21
of the PPC includes such Judges. As a result, it follows from
well-established rules of interpretation (which need not be set
out here) that the expression ‘public servant’ continues to
bear the same meaning in the Ordinance as it did in the
predecessor tax laws. Nevertheless, while in ordinary

103
circumstances this would be sufficient to settle the debate on
the question of whether Judges are public servants, in light of
the constitutional importance of this petition it is advisable if
this question is answered conclusively by applying the
features of public office, set out by this Court, to the office of
a Judge of the Superior Courts. Reference is made to the
judgment of this Court in Salahuddin Vs. Frontier Sugar
Mills & Distillery Ltd (PLD 1975 SC 244) which quotes the
following passage from Ferris’s Extraordinary Legal Remedies,
1925 Edn, page 145, with approval:
“Pages 258-259: "a public office is the right,

authority and duty created and conferred by
law, by which an individual is vested with
some portion of the sovereign functions of the
Government to be exercised by him for the
benefit of the public, for the term and by the
tenure prescribed by law. It implies a
delegation of a portion of the sovereign power.
It is a trust conferred by public authority for
a public purpose, embracing the ideas of
tenure, duration emolument and duties. A
public officer is thus to be distinguished from
a mere employment or agency resting on
contract, to which such powers and functions
are not attached . . . . . The determining
factor, the test, is whether the office involves
a delegation of some of the sovereign
functions of Government, either executive,
legislative or judicial, to be exercised by the
holder for the public benefit. Unless his
powers are of this nature, he is not a public
officer."”
(emphasis supplied)
83. It becomes plain from the above cited dictum that
there are five main ingredients present in the office of a public
servant. These are:
a. The office is a trust conferred for a public purpose;

104
b. The functions of the office are conferred by law;
c. The office involves the exercise of a portion of the
sovereign functions of Government whether that
be executive, legislative or judicial;
d. The term and tenure of the office are determined
by law; and
e. Remuneration is paid from public funds.
84. When the office of a Judge of the Supreme Court
is scrutinised against these ingredients, it becomes obvious
that Judges of this Court are indeed public servants. Their
office is created by the Constitution and so are the
jurisdiction and powers that they possess. They perform an
essential governmental function: the administration of justice
for the benefit of the public at large. They have a fixed tenure,
prescribed by Article 179 of the Constitution and their
emoluments are paid from the Federal Consolidated Fund
under Article 81 of the Constitution. As a result, there is no
doubt that a Judge of the Supreme Court is a public servant
for the purposes of Section 216(3)(p) of the Ordinance. We
then have the terms ‘investigation’ and ‘officer or department
of Federal Government.’ In our view, these expressions are
not intended to be used in a narrow, technical or pedantic
manner. Instead, they are to be given a natural, though
contextual, meaning. For instance, the term ‘investigation’ is
not to be used only in the sense in which it is defined in

105
Section 4(1)(l) of the Code of Criminal Procedure, 1898. In
fact, in relation to the Judge of a Superior Court, an
‘investigation’ into his ‘conduct and affairs’ can only mean an
investigation for the purposes of Article 209 of the
Constitution. However, it is critical (for the exception in
Section 216(3)(p) to be attracted) that the ‘investigation’ is
duly sanctioned and is being carried out in accordance with
law at the time that the clause is invoked. If this is not so
then clause (p) can have no application and the information
cannot be disclosed. As will become clear later on in the
judgment, there was no proper investigation for the purposes
of Article 209 when the ARU sought the tax information of the
petitioner from the FBR. Consequently, the exception in
Section 216(3)(p) of the Ordinance is not applicable to the
facts of the case.
85. As far as Mrs. Isa is concerned, the language of
clause (p) suggests that it is not limited only to information
relating to the public servant. Instead, provided that the other
conditions laid down therein are met, this clause also applies
to any other taxpayer as long as it can be shown that there is
a real, direct and substantial connection/nexus between the
information sought in relation to the latter and the
investigation underway into the conduct and affairs of the
public servant. And, ipso facto, unless tax information is
sought in respect of the public servant no such information of
any taxpayer can be accessed. Hence, the exception under

106
Section 216(3)(p) of the Ordinance also applies to Mrs. Isa.
However, as already noted (and which will be discussed in
detail later on) the jurisdictional prerequisites for carrying out
an investigation against the petitioner did not exist. It
therefore follows that the request made by the ARU for the tax
information and the release of such information by the tax
authorities did not fall within the exception contained in
clause (p). As a result, the disclosure was contrary to law.
86. Be that as it may, our conclusion that the
petitioner or his spouse did not disclose the London
Properties in their wealth statements is not based on the tax
information unlawfully harvested by the respondents. Rather,
in the case of the petitioner, we have relied on the stance
taken by him in his pleadings that he has no connection
whatsoever with the London Properties. It logically follows
then that he did not declare these properties in his wealth
statements. With respect to Mrs. Isa, we have based our
decision on the oral statement she made in Court through
video link on 18.06.2020 (elaborated more fully below) that
prior to 2018 she had not declared the London Properties in
her wealth statements. As a result, in these circumstances
when we have not taken into consideration the tax
information collected illegally by the respondents, we do not
deem it necessary to pass any definitive finding on whether,
and if so, in which circumstances and to what extent, such
information is admissible in a court of law.

107
87. Finally, there is the property search carried out by
the respondents in the United Kingdom. Although during the
initial stage of oral arguments, learned counsel for the
petitioner vehemently argued that these searches were a
violation of the right to privacy, he later accepted that the
property searches were in fact carried out from the public
record. It would be useful at this stage to set out the
procedure for such property searches. Essentially, the entire
operation consists of a two-step process. In the first step, the
name of the relevant person is searched on the open source
website 192.com which gives a list of the addresses of the
potential properties owned by the said person. Subsequently,
these addresses are entered into the UK Land Registry
website, on the payment of a fee (£3 for each property search),
which gives the details of not only the property but also the
name of the owner. It is by now well-established that the UK
Land Registry is an open source. This is corroborated by
Section 66 of the Land Registration Act, 2002 which reads:
“66 Inspection of the registers etc

(1) Any person may inspect and make copies
of, or of any part of—
(a) the register of title,
(b) any document kept by the registrar
which is referred to in the register of title,
(c) any other document kept by the
registrar which relates to an application to
him, or
(d) the register of cautions against first
registration.”
(emphasis supplied)
108
Accordingly, the argument of the learned counsel for the
petitioner that the property search was a violation of the right
to privacy has become a moot point because it is now obvious
that in searching these records the respondents have not
violated any law. Indeed, there is no law to violate since
property records are open to the public (and have been since
03.12.1990). Consequently, no confidentiality attaches to
such records. Clearly then, the acts of the officers of ARU and
the Federal Government in accessing the property records of
the petitioner and his family cannot be classified as either
invasion of privacy or covert surveillance.
88. While reaching this decision, we have been
conscious of Article 14(1) of the Constitution produced herein
below:
“14 Inviolability of dignity of man, etc.

(1) The dignity of man and, subject to law, the
privacy of home, shall be inviolable.”
However, it is pertinent to mention here that the guarantee
under Article 14(1) is for the privacy of home and that too
subject to law. Such privacy does not extend to the tax and
property records of either the petitioner or his family
members. Moreover, learned counsel’s reliance on the case of
Mohatarma Benazir Bhutto Vs. President of Pakistan (PLD
1998 SC 388) to support his contention of covert surveillance
and a violation of the right to privacy is misplaced. The facts
of that case are distinguishable from the facts of the present

109
case. In the former it was established that the homes,
Chambers and telephones of Judges of the Superior Courts
were tapped and bugged:
“27: The list of persons whose telephones

were tapped and were under surveillance
consists of Judges of the superior Courts
including the Chief Justice of Pakistan, Chief
Justice of the Federal Shariat Court, Chief
Justice of the High Court of Balochistan,
Chief Justice and Judges of the High Courts
of Lahore and Sindh, rest houses and
Chambers of the Judges were all subjected to
such illegal act which will make a respectable
nation to hang its head in shame…
28. The tapping and eaves-dropping of the
telephones of the Judges of the superior or
the subordinate Courts interferes in the
discharge of duties and decision of cases,
which a Judge is bound to do under law and
the Constitution. A bug was planted in the
Chambers of the Hon'ble Chief Justice of
Pakistan wherever he was, bugs were also
planted in the Judges' rest houses, their
privacy in home, Chambers or in the rest
houses was all under surveillance by illegal
intrusion. It is a matter of common
knowledge that the Judges while hearing the
cases in a Bench usually discuss the merits
and demerits in chambers and in privacy.
They also dictate their judgments in their
Chambers where no intrusion or interference
is allowed. By tapping and bugging the
Chambers and homes of the Judges,
interference is made in the proper discharge
of duties which is wholly destructive of the
independence of judiciary and its ability to
function as a coordinate branch and pillar of
the State.”
(emphasis supplied)
However, no similar allegation has been levelled by the
petitioner against the respondents. Therefore, while it was
correct to hold that there had been unlawful surveillance and
a violation of Article 14(1) of the Constitution in the Benazir

110
Bhutto case (supra), giving the same ruling on the facts of the
instant case will be tantamount to stretching the ratio
decidendi of that case beyond its ambit. Consequently, we
find that learned counsel’s invocation of Article 14(1) in the
present circumstances is erroneous.
DEFECTS IN THE REFERENCE
89. A strong objection was also raised by learned
counsel for the petitioner about the defects inherent in the
preparation of the Reference. This submission covered three
main aspects: lack of authorisation by the President for
investigating the affairs of the petitioner, the complete bypass
of the judicial tax hierarchy by the Government before making
out a case under Section 116 of the Ordinance against the
petitioner and the non-application of mind by the President in
sending the Reference to the SJC. In addressing us on these
points, learned counsel for the petitioner adopted the findings
of this Court given in the CJP case (supra). He argued that all
stages of a Presidential reference prior to the SJC proceedings
could be struck down on ordinary judicial review grounds
(albeit he only pressed the ground of mala fide when touching
upon the validity of the pre-SJC proceedings). He submitted
that the Reference suffered from serious violations of law and
procedure which rendered it liable to be quashed.

111
90. On the other hand, learned counsel for the
respondents began his submissions with the contention that
a Presidential reference needed to satisfy only a very low
threshold of correctness, and that merely a prima facie case
needed to be established by the respondents on the accuracy
of the contents of the Reference. He further submitted that
this Court could not analyse in any detail the opinion formed
by the President in deciding to send the Reference to the SJC;
instead we were only limited to examining whether there was
some material before the President which had nexus with the
object of Article 209 of the Constitution. In simple terms,
learned counsel stated that only the ‘structural elements’ of
the Reference could be looked into by this Court and any
errors, whether minor or major, could not invalidate the
opinion of the President as long as there existed some
material which showed that a Superior Court Judge may have
been guilty of misconduct. However, learned counsel for the
respondents did not address the Bench on the critical issue of
authorisation of an investigation against a Judge.
91. Before giving our findings on the defects in the
Reference, highlighted by learned counsel for the petitioner,
we would like to address the submission of learned counsel
for the respondents that a Presidential reference needs to
satisfy only a very low threshold of factual and legal
correctness with regard to its contents. In our considered
view, learned counsel has conflated a low burden of proof

112
with a low standard of care. It is true that Article 209(5) of the
Constitution only requires the President to form an opinion
that a Superior Court Judge may have been guilty of
misconduct. He does not need to be certain that a Judge is
guilty of the conduct alleged. Nevertheless, his opinion must
be based on positive and affirmative material and on the
assurance that necessary legal and procedural safeguards
have been observed in the preparation of the reference.
Therefore, for the President to even form a prima facie opinion
about a Judge’s guilt, the President needs to verify that there
has been compliance with the settled rules on authorisation;
he needs to obtain proper advice on the contents of the
reference from competent persons; and he needs to ascertain
that there is sufficient material before him which satisfies the
high thresholds of care and proof expected in the preparation
of a reference.
92. At this stage it would be appropriate to consider
why we have set out this requirement of a high standard of
care and proof for the formulation of a reference. It needs to
be kept in mind that a complaint against a Superior Court
Judge can be generated in one of three ways: a Presidential
reference, a private complaint and the exercise of suo motu
jurisdiction by SJC. Since all three methods are distinct,
therefore, the quality of their information/complaint will also
be different. Take for instance a complaint by an ordinary
citizen. It is a certainty that when an individual files a

113
complaint against a Judge, he will only be able to provide
primitive or half-baked information. This is because an
individual only has limited resources at his disposal. He
cannot be expected to unearth all the necessary information
needed to fully document his complaint. However, a
Presidential reference is articulated on a different level
compared to a private complaint. When the President, as the
Head of State, sends a reference against a Judge, he has at
his disposal State agencies and access to competent legal
advice. He can utilise these to verify that valid authorisation
for investigation has been granted and that materials that are
relevant and reliable under the test laid down in Bisvil
Spinners (supra) are available to support the reference.
However, if this Court were to lay down that despite all the
machinery of the Federal Government at his command, the
President is only required/obliged to send a perfunctory
reference which contains legal and factual defects, then
nothing will be more harmful to the independence of the
judiciary. Such a relaxation will give the Executive the room
to send frivolous references with the expectation that if some
nexus between the material and the object of Article 209 of
the Constitution is demonstrated, the SJC will itself find
substance in the reference. Therefore, to protect and defend
the independence of the judiciary, we hold that a reference
sent by the President must contain authorised, serious,
considered and verified information in both respects, legal

114
and factual, in order to possess the gravity that should
accompany a Presidential action.
AUTHORISATION FOR INVESTIGATION
93. Having determined that a reference needs to be
thorough, it now needs to be decided whether the Reference
against the petitioner satisfies this test. One of the basic
objections to the validity of the Reference is the lack of
authorisation for investigation conducted prior to the
Reference’s filing. Learned counsel for the petitioner
submitted that the CJP case (supra) is authority for the
proposition that authorisation for investigating the affairs of
the petitioner (or for that matter any other Superior Court
Judge) could only have come from the President himself. The
relevant portion from the judgment is produced below:
“64: A perusal of the above-quoted provisions

of Article 209 would reveal that… clauses (5)
and (6) of the said Article 209 tell us of
various steps of the exercise leading to the
removal of a Superior Court Judge…
Reverting back to the various steps
mentioned above, I would summarize the
same as under:
(i) receipt of information by the President,
from any source, about the mental or
physical incapacity of a Judge or of his being
guilty of misconduct;
(ii) collection of material in support of the
said information;
(iii) formation of opinion by the President that
such a Judge may well be incapable as
above-mentioned or may have committed
misconduct;
115
(iv) the consequent direction (generally called

the Reference) by the President to the Council
to inquire into the matter;”
(emphasis supplied)
94. Learned counsel argued that the above passage
confirms that the only purpose for ensuring that information
against a Judge is received by the President is to obtain his
permission to proceed with the investigation to collect
material in support of the said information. However, as the
record shows this was not done. Instead, when the complaint
of Mr. Dogar was received, the Chairman of ARU obtained the
authorisation of the Law Minister on 16.04.2019 to
commence an investigation against the petitioner. This is
evident from the letter of the Chairman ARU dated
10.05.2019. However, such authorisation is against the law
enunciated in the CJP case (supra), and therefore cannot
stand. The only reasoning advanced by learned counsel for
the respondents to defend the act of the Law Minister
authorising the investigation against the petitioner was item
21(10) of Schedule II of ROB which reads:
“Schedule II
[Rule 3(3)]
DISTRIBUTION OF BUSINESS AMONG THE
DIVISIONS
………………………………………………………….
21. Law and Justice Division
………………………………………………………….
116
(10) Federal Government functions in regard

to the… Supreme Judicial Council…”
However, this is a very widely worded provision which deals
with the allocation of business and not the vesting of power in
the Law Minister to authorise investigations against Superior
Court Judges. Indeed, the ROB do not at all deal with the
matter of investigations against Judges of the Superior
Courts. Consequently, this issue has to be resolved by
interpreting the relevant Constitutional provisions. While the
CJP case (supra) does not make an explicit statement to the
effect that authorisation for investigation must be granted by
the President, the sequence of steps given in para-64
(reproduced above) of that judgment interpret Article 209(5) of
the Constitution as granting the President such a power.
However, logic dictates that the President cannot personally
assess accusatory information against a Judge and instead
requires assistance and advice in the matter. In this respect,
there is no law that lays down the procedure for obtaining
such support for the President. Therefore, in such a situation
the Constitutional principles become relevant. To gather the
Constitutional intent as to who is the competent authority for
authorising an investigation against a Superior Court Judge,
Article 209(5) of the Constitution should be the starting point
of the discussion. For convenience, this sub-Article is

117
reproduced below:

………………………………………………………….
Court-
into the matter.”
95. It can be noticed that Article 209 involves only two
Constitutional authorities in the initiation and consideration
of a reference against a Superior Court Judge: the SJC and
the President. The SJC only becomes involved in the
proceedings once the reference is forwarded to it by the
President. The observation in the CJP case (supra) about the
collection of material in support of the information against a
Judge has been referred above. Although the case was
decided on the ground of mala fide of facts, however, the
observation about collection of material against a Judge
provides useful guidance. Under the Constitutional scheme
the President cannot personally be responsible for authorising
an investigation into an allegation against a Judge. He does
not exercise his official functions as he desires but instead
acts on the advice of the PM or the Cabinet under Article
48(1) except for in situations where the Constitution has

118
directed him to act in his discretion under Article 48(2).
However, the sequence of steps noted in para-64 of the CJP
judgment (supra) does not deal with the constitutional
mechanism under which the President may authorise
collection of material against a Judge of the Superior Courts.
At present there are three methods under Article 48 of the
Constitution by which the President may possibly authorise
such an investigation. To dilate further on this matter, it
would be appropriate to read Article 48:
“48. President to act on advice, etc. (1) In

the exercise of his functions, the President
shall act on and in accordance with the
advice of the Cabinet or the Prime Minister:
Provided that [after fifteen days] the President
may require the Cabinet or as the case may
be, the Prime Minister to reconsider such
advice, either generally or otherwise, and the
President shall, within ten days, act in
accordance with the advice tendered after
such reconsideration.
(2) Notwithstanding anything contained in
clause (1), the President shall act in his
discretion in respect of any matter in respect
of which he is empowered by the Constitution
to do so and the validity of anything done by
the President in his discretion shall not be
called in question on any ground
whatsoever.”
96. It may be noticed that the President may be
required by the Constitution to act on the advice of the PM or
Cabinet under sub-Article (1) of Article 48 or to act in his own
discretion under sub-Article (2) of the said Article. It is an
appealing hypothesis that the President should act in his
discretion when authorising an investigation against a

119
Superior Court Judge. Indeed, there is force in the
proposition that the removal process of Judges must be as
isolated from the Executive as possible. However, this
conclusion conflicts with the Constitutional scheme. Security
of tenure of Judges and independence of the judiciary are
most certainly assured by our Constitution. However, these
can be enforced in accordance with the Constitutional scheme
for the functioning of the Federal Government which has
significantly been altered by the 18th Amendment passed in
the year 2010. A salient feature of this Constitutional
Amendment is that it resets the balance of powers and
functions between the President and the PM. Before this
Amendment, several provisions in the Constitution allowed
the President to carry out functions in his discretion. Some
provisions are quoted to illustrate the point:
“48. President to act on advice, etc.

………………………………………………………….
(6) If, at any time, the President, in his
discretion, or on the advice of the Prime
Minister, considers that it is desirable that
any matter of national importance should be
referred to a referendum, the President may
cause the matter to be referred to a
referendum in the form of a question that is
capable of being answered either by "Yes" or
"No".
58. Dissolution of the National Assembly
………………………………………………………….
clause (2) of Article 48, the President may
also dissolve the National Assembly in his
discretion where, in his opinion,:-
(a) a vote of no-confidence having
been passed against the Prime
Minister, no other member of the
120
National Assembly is likely to command

the confidence of the majority of the
members of the National Assembly in
accordance with the provisions of the
Constitution as ascertained in a
session of the National Assembly
summoned for the purpose; or
(b) a situation has arisen in which
the Government of the Federation
cannot be carried on in accordance
with the provisions of the Constitution
and an appeal to the electorate is
necessary.
91. Cabinet
………………………………………………………....
(2) The President shall in his discretion
appoint from amongst the members of the
National Assembly a Prime Minister who, in
his opinion, is most likely to command the
confidence of the majority of the members of
the National Assembly.”
(emphasis supplied)
After the 18th Amendment, almost all of the discretionary
powers of the President have either been omitted or have been
made exercisable on the advice of the PM or the Cabinet. The
above mentioned provisions stand amended as follows:
“48. President to act on advice, etc.

………………………………………………………….
(6) If at any time the Prime Minister considers
it necessary to hold a referendum on any
matter of national importance, he may refer
the matter to a joint sitting of the Majlis-e-
Shoora (Parliament) and if it is approved in a
joint sitting, the Prime Minister may cause
such matter to be referred to a referendum in
the form of a question that is capable of being
answered by either "Yes" or "No".
58. Dissolution of National Assembly

………………………………………………………….
clause (2) or Article 48, the President may
121
dissolve the National Assembly in his

discretion where, a vote of no-confidence
having been passed against the Prime
Minister, no other member of the National
Assembly commands the confidence of the
majority of the members of the National
Assembly in accordance with the provisions
of the Constitution, as ascertained in a
session of the National Assembly summoned
for the purpose.
91. Cabinet
………………………………………………………….
(4) The Prime Minister shall be elected by the
votes of the majority of the total membership
of the National Assembly…”
(emphasis supplied)
97. The only exception to this change, brought about
by the 18th Amendment, is Article 58(2) which read with
Article 91(7) of the Constitution still allows the President to
dissolve the National Assembly in his discretion if a vote of
no-confidence has been passed against the sitting PM and no
other member of National Assembly commands the
confidence of the majority. As a result, while the substance of
Article 48(2) has remained the same, the subject matters
governed by this Constitutional provision have been
substantially curtailed. Therefore, to hold that the President
can authorise an investigation against a Judge in his own
discretion will be doing violence to the language of the
Constitution. It is our considered view that Article 48(2) only
applies where the President is specifically authorised by the
Constitution to act in his discretion. No such command is

122
given to the President in Article 209(5) of the Constitution
which governs the removal of Judges.
98. Moreover, the sending of a reference is an
executive act performed by the Federal Government. To
declare that the President is to authorise investigations into
Superior Court Judges in his discretion would amount to
inviting the President to arrogate powers in complete
contradiction of the Constitutional scheme. The 18th
Amendment has shifted the Government’s decision making in
the working of the State. Evidence of this shift can be found
in Article 90 of the Constitution which prior to the 18th
Amendment read as follows:
“90. Exercise of executive authority of the

Federation.
(1) The executive authority of the Federation
shall vest in the President and shall be
exercised by him, either directly or
through officers subordinate to him, in
accordance with the Constitution”
However, after the 18th Amendment, this provision has been
significantly modified. For ease of reference, it is produced
below:
“90. The Federal Government:

(1) Subject to the Constitution, the executive
authority of the Federation shall be
exercised in the name of the President by
the Federal Government, consisting of the
Prime Minister and the Federal Ministers,
which shall act through the Prime
Minister, who shall be the chief executive
of the Federation.
(2) In the performance of his functions under
the Constitution, the Prime Minister may
123
act either directly or through the Federal

Ministers.”
99. It may be noticed that Article 90 no longer vests
the executive authority of the Federation in the President nor
is it exercised by him. Instead, executive authority is now
exercisable by the Federal Government, consisting of the PM
and the Federal Ministers, in the President’s name. Therefore,
the President has been replaced as the central figure of the
State by the PM. As a result, under the Constitutional process
for performing the executive function of authorising an
investigation into an information against a Superior Court
Judge, the President should act on the advice of the PM or the
Cabinet under Article 48(1) of the Constitution and not invoke
his discretionary power under Article 48(2).
100. Nevertheless, upon whose advice is the President
to act under Article 48(1) of the Constitution. That Article
simply states that the President is to act on the advice of
either the Cabinet or the PM. Even Article 91(1) simply
reiterates the two advising authorities nominated in Article
48(1). Article 90(1) clarifies that the Federal Government shall
act through the PM unless the latter requires, under Article
90(2), his functions to be performed through the Federal
Ministers. As a result, the Constitution omits to provide any
guidelines or criteria to distinguish the executive functions
that are to be performed under the advice of the Cabinet and
those which are to be performed under the advice of the PM.

124
It leaves that business to be determined by the Federal
Government according to its requirements and exigencies
from time to time.
101. Accordingly, Article 99(3) of the Constitution
empowers the Federal Government to make rules for the
allocation and transaction of its business. In exercise of such
power, the Federal Government has framed the ROB that
serve as a source of guidance on the instant subject. The ROB
are constitutionally mandated rules and must be followed by
the Government in carrying out its functions. The mandatory
status of the ROB was affirmed by this Court in the case of
Mustafa Impex (supra):
“50: The Constitution confers vast powers on

the Government for the transaction of
executive business. There is no reason to
suppose, or believe, that the framers of the
Constitution intended, in disregard of the
explicit language employed, that the Federal
Government could, in its discretion, either
follow, or not follow, the provisions of the
Rules of Business. The framer of rules
[Federal Government] is as much bound by
the content thereof as anyone else is subject
thereto. These are basic precepts of
constitutional interpretation. To allow the
Executive to depart from the language of the
Rules, in its discretion, would be to permit,
and legitimize, unconstitutional executive
actions. Quite independently of the above,
there is ample case law stressing the
importance of a structured exercise of
discretionary power. In this case the
discretionary executive powers have already
been fettered by the Constitution. The
framing of rules for this purpose is
inextricably linked to the guided exercise of
official power. The following of the Rules of
Business is a salutary exercise intended to
enhance, and amplify, concepts of good
governance. We have no doubt that it is
125
mandatory and binding on the Government,

and so hold.”
(emphasis supplied)
Consequently, Rule 15-A of the ROB specifies the procedure
to be followed for functions that are required by the
Constitution to be performed by the President. For sake of
convenience, it is reproduced below:
“15-A. Reference to the President.— (1)

Notwithstanding the provisions made in these
rules, where in terms of any provision of the
Constitution any function is to be performed
or any orders have to be issued by the
President or his specific approval is required,
the Division concerned shall incorporate a
paragraph to this effect in the summary
entitled as "Summary for the Prime Minister".
The Prime Minister shall render his advice
and submit the case to the President. After
the President has seen and approved the
case, it shall be returned to the Prime
Minister. The cases to which this sub-rule
applies are enumerated in Schedule V-B.
(2) Notwithstanding the provisions made in
these rules, where in terms of any provisions
of the Constitution, any function is to be
performed or any orders have to be issued by
the President in his discretion, the Division
concerned shall submit the case to the
President through the Prime Minister in the
form of a self-contained, concise and
objective summary entitled as "Summary for
the President" stating the relevant facts and
points for decision prepared on the same
lines as prescribed in these rules for a
Summary for the Cabinet, except that only
one copy will be required which may not be
printed. This procedure will not, however, be
applicable where the President has conveyed
the decision to the Prime Minster for issuing
orders in respect of cases in his discretion.
The cases to which this sub-rule applies are
enumerated in Schedule VI.”
(emphasis supplied)
126
102. It may be noticed that Rule 15-A(1) deals with
cases that require the orders or approval of the President on
the advice of the PM. Accordingly, the same Rule refers to
Schedule V-B which sets out the list of cases in which the
PM’s advice is to be tendered. Serial number 35 of Schedule
V-B reads: “Reference to Supreme Judicial Council.” It is thus
patent that the entire process of a Presidential reference falls
under the advice of the PM according to the ROB. It is he who
has to advise the President on the steps that need to be taken
in a matter that bears relation to Article 209(5) of the
Constitution. As a result, the approval by the President of the
advice of the PM is necessary for commencing an
investigation into a complaint made against a Judge of the
Superior Court.
103. However, in the present Reference before us there
is no such authorisation on record for commencing an
investigation against the petitioner. Instead the record shows
that the only authorisation sought, for probing the complaint
against the petitioner, was from the Law Minister who under
any interpretation of the Constitution had no jurisdiction in
this behalf. The competent authorities, namely, the PM and
the President were never approached by the Ministry of Law
for the requisite authorisation envisaged by the CJP (supra)
judgment. Both constitutional authorities got involved in the
process after all the material had already been collected. The
initial authorisation by the President on the advice of the PM

127
to commence an investigation against a Judge in a complaint
falling under Article 209(5) is a legal requirement for
sustaining the validity of a Presidential reference that is
ultimately filed with the SJC. Such oversight by the highest
Constitutional functionaries protects Judges from whimsical
and arbitrary interference by Executive authorities in their
personal judicial independence and privacy. Without valid
authorisation the foundation of the Reference suffers from an
initial illegality which amounts to a Constitutional violation.
Consequently, such an infirmity is fatal to the superstructure
that is erected on it. As a result, this Reference is illegal and
falls to the ground.
VALIDITY OF ALLEGATIONS IN THE REFERENCE
104. It is now important to consider the substance of
the allegations made in the Reference filed against the
petitioner. It would be appropriate at this stage to produce
the relevant portions from this Reference:
“9. Mr. Justice Qazi Faez Isa was elevated as

the Chief Justice of the Baluchistan High
Court on 5 August 2009 (see PLD 2010
Journal 1 at p.3). One of the afore-
mentioned properties has been acquired in
the year 2011, while two have been acquired
in the year 2013. Since 2011 till date Justice
Qazi Faez Isa has filed wealth statements,
alongwith his tax returns, intentionally and
deliberately concealing the above three
properties, notwithstanding that all along u/s
116(1)(b) of the 2001 Ordinance he was
under a direct legal and juridical obligation to
have declared the said properties. His wife
also filed a wealth statement for the tax year
128
2014, and failed to declare the said

properties.
………………………………………………………….
11. Apart from the fact that the failure of
Justice Qazi Faez Isa to declare the afore-
mentioned foreign properties of his wife in his
successive wealth statements violates section
116(1)(b) of the 2001 Ordinance, the same
also gives rise to the following issues:-
(a) the source to acquire the afore-stated
expensive properties is not accounted for;
(b) whether the properties as afore-stated
were acquired through money laundering,
is an aspect which cannot be ruled out.
12. By not declaring the afore-stated
properties and accounting for them, the
respective wealth conciliation statements filed
by Justice Qazi Faez Isa are also totally
incorrect and tainted with concealments.
Hence, a clear violation of Section 116(2) and
other penal provisions of the 2001 Ordinance
are also made out.
………………………………………………………….
16. A Judge of the Superior Court who omits
to intentionally declare three expensive
London properties jointly owned by his
spouse and children, violates Section 116 of
the 2001 Ordinance. The tax records of the
learned Judge and his spouse are absolutely
silent about the source through which the
said properties had been acquired and how
and from where the funds were made
available to purchase the said properties,
without violating the money laundering
regime and the Foreign Exchange Regulation
Act, 1947…”
(emphasis supplied)
From a perusal of the above quoted excerpts it becomes clear
that the Reference (repeatedly) emphasises that the petitioner
has violated Section 116 of the Ordinance, the money
laundering regime and FERA. These in turn raise questions
about the source of funds used for acquiring the London
Properties.
129
105. Similarly, the SCN issued by the SJC has also
levelled corresponding allegations against the petitioner; and
while we cannot examine the validity of the SCN issued by the
SJC unless the bar under Article 211 is crossed, however, to
appreciate the scope of the allegations in the Reference we are
reproducing the said allegations in the SCN:
“(g) That allegedly the failure of your lordship

to declare the afore-mentioned foreign
properties of your wife in your lordship’s
successive wealth statements violates section
116(1)(b) of the 2001 Ordinance, and gives
rise to the following issues:-
(a) the source to acquire the afore-stated
expensive properties is not accounted for;
(b) whether the properties as afore-stated
were acquired through money laundering, is
an aspect which cannot be ruled out.
………………………………………………………….
(i) Thus there is nothing on record to suggest
that your lordship’s wife and children had
independent sources of income and that such
funds were validly available with them to
purchase the three foreign properties;
………………………………………………………….
(k) That from the aforesaid it appears that at
the relevant point of time of the purchase of
the three properties your lordship’s wife and
the children were your dependents or at least
were not possessed of known sources of
income or pecuniary resources sufficient for
acquisition of the properties in question. It
appears that the said properties were
concealed from the Income Tax Authorities in
Pakistan. Furthermore, your lordship’s
worthy wife and children, in the context of
the matter, are sufficiently connected to you,
so as to put you, as a Judge of the superior
Court of Pakistan, under a direct obligation
to give a money trail of the three properties so
as to establish that the source of funds and
transfer thereof was not in violation of law.
………………………………………………………….
o) That allegedly the tax records of your
lordship and your lordship’s spouse are
130
absolutely silent about the source through

which the said foreign properties had been
acquired and how and from where the funds
were made available to purchase the said
properties, without violating the money
laundering regime and the Foreign Exchange
Regulation Act, 1947.”
(emphasis supplied)
An examination of these extracts reveal that the main
purpose of the SJC for initiating an inquiry against the
petitioner was to establish the source of funding of the
allegedly concealed London Properties. This is therefore
further evidence that the removal proceedings against the
petitioner were aimed not at alleged tax default but at
determining where the funds for the London Properties came
from.
106. Taking up the other grounds of action against the
petitioner first, we would like to make it clear that learned
counsel for the respondents did not make any submissions
on the petitioner’s alleged violation of the provisions of FERA.
In fact, he did not even nominate the relevant provisions of
the said law. There is also no material, before us, which
supports the said bald allegation of a violation of the claimed
foreign exchange regime under FERA. As a result, we have no
doubt that this particular charge is completely without merit.
It is, therefore, surprising that the Law Minister, the PM and
the President all failed to notice the non-existent case made
out against the petitioner for allegedly violating the provisions

131
of FERA. The filing of a Presidential reference under Article
209(5) is a solemn matter. It has grave consequences for the
Judge against whom such a reference is prepared. It prima
facie constitutes an interference with the security of tenure
guaranteed to Judges of the Supreme Court under Article 179
of the Constitution. Therefore, the allegation levelled in a
reference should be based on cogent evidence and sound legal
analysis. A Presidential reference cannot be filed on
assumptions. However, in the present case, the allegation of
violating the provisions of FERA against the petitioner is
exactly that: an unsubstantiated assumption neither backed
by evidence nor supported by the relevant rule that was
allegedly breached. As such, it cannot be sustained.
107. In this context, the next allegation levelled against
the petitioner is that of money laundering. The primary
legislation governing this subject matter is the Anti-Money
Laundering Act, 2010 (“AMLA”). Section 2(q), (s) and Section
3 of this Act define the offence of money laundering. These
are produced below:
“2 Definitions.— In this Act, unless there is

anything repugnant in the subject or
context,—
………………………………………………………….
(q) “proceeds of crime” means any property
derived or obtained directly or indirectly by
any person from the commission of a
predicate offence or a foreign serious offence;
(s) “predicate offence” means an offence
specified in the Schedule to this Act;
132
3 Offence of money laundering.— A person

shall be guilty of offence of money laundering,
if the person:—
(a) acquires, converts, possesses, uses or
transfers property, knowing or having reason
to believe that such property is proceeds of
crime;
(b) conceals or disguises the true nature,
origin, location, disposition, movement or
ownership of property, knowing or having
reason to believe that such property is
proceeds of crime;
(c) holds or possesses on behalf of any other
person any property knowing or having
reason to believe that such property is
proceeds of crime; or
(d) participates in, associates, conspires to
commit, attempts to commit, aids, abets,
facilitates, or counsels the commission of the
acts specified in clauses (a), (b) and (c).
……………………………………………..
Explanation II.- For the purposes of proving
an offence under this section, the conviction
of an accused for the respective predicate
offence shall not be required.”
It may be noticed from a reading of both Sections 2 and 3 that
a necessary element of the offence of money laundering is the
commission of a predicate offence. The execution of this
offence gives birth to the proceeds of crime, the movement of
which attracts the criminal conduct of money laundering.
Therefore, without the commission of a predicate offence
there can be no offence of money laundering. However, not
every statutory violation is a predicate offence; AMLA
recognises this by setting out in its Schedule a list of
statutory offences that constitute a predicate offence for the
purposes of money laundering. In the present case, the main
allegation against the petitioner is that he has failed to

133
declare the London Properties owned by his wife and children
in his wealth statements. The contents of a wealth statement
are provided in Section 116(1) of the Ordinance. For the
moment, ignoring our view that the said provision is vague
about a taxpayer’s obligation to disclose the assets of a
financially independent spouse, it is clear that in order to
attract the offence of money laundering the non-declaration of
assets under Section 116 ibid must constitute a predicate
offence. Only then may the allegation of money laundering be
made against the petitioner. In this regard, the offences
incorporated from the Ordinance to the Schedule to AMLA
have to be examined. The gist of these offences is reproduced
below:
““THE SCHEDULE”
………………………………………………………….
Section XIIA The Income Tax Ordinance,
2001
192 Prosecution for false statement in
verification- where tax sought to be evaded is
ten million rupees or more[;]
192A Prosecution for concealment of Income-
where tax sought to be evaded is ten million
rupees or more[;]
Note: for the purposes of this Section,
concealment of income includes any
act referred to in sub-section (1) of
section 111 (unexplained income or
assets)
194 Prosecution for improper use of National
Tax Number [Certificate}- where tax sought to
be evaded is ten million rupees or more[;]
199 Prosecution for abetment – where tax
sought to be evaded is ten million rupees or
more.”
134
A perusal of the Schedule reveals that the non-declaration of
assets by a taxpayer under the Ordinance is not a predicate
offence under AMLA. Therefore, prima facie no case of money
laundering can be made out against the petitioner on this
count.
108. Be that as it may, it is a matter of record that the
Reference has not alleged the commission of any specific
predicate offence under AMLA by any person. Nevertheless,
assuming for the sake of argument that the petitioner is
under an obligation to list the assets of his wife in his wealth
statement, the only predicate offence that appears remotely
relevant to the case against him is under Section 192 of the
Ordinance. Nonetheless, even though Section 3 of AMLA
specifies that the commission of the offence of money
laundering is not dependent upon the conviction of the
petitioner for a predicate offence, it at least requires that a
specific predicate offence be alleged. However, no predicate
offence has been alleged against the petitioner in the
Reference. Nor has any evidence been placed on record which
may prima facie support the allegation of money laundering.
In the above factual scenario, an allegation of money
laundering against the petitioner is entirely fictional at this
stage. The said allegation is therefore without merit.
109. Equally, it is relevant to note that the four
Sections of the Ordinance were only inserted in the Schedule

135
to AMLA as predicate offences on 20.05.2016 whereas the
London Properties were purchased by the petitioner’s family
in 2011 and 2013. Consequently, it is an established fact that
before 2016, violations of the Ordinance could not form the
basis of a money laundering allegation. This proposition is
backed by Article 12 of the Constitution:
“12. Protection against retrospective

punishment
(1) No law shall authorize the punishment of
a person:-
(a) for an act or omission that was not
punishable by law at the time of the act or
omission;”
110. The Constitution itself grants protection to
individuals from retrospective punishment. Therefore,
reliance by learned counsel for the respondents on an
amendment made in 2016 to seek removal of the petitioner
for acts committed in 2011 and 2013 appears to be improper.
This will continue to be so unless the application of Section
192 is interpreted otherwise by the competent forum under
the Ordinance.
111. Possibly, for the above mentioned reasons, learned
counsel for the respondents submitted that the Reference
does not allege that the petitioner has violated the provisions
of AMLA. Instead, he argued the Reference simply refers to a
violation of the money laundering regime in general. To
support his contention he relied on certain Circulars and

136
Notifications issued by SBP under FERA, some of which are
produced below:
“Notification No. F.E. 2/98-SB

Dated the 21st July, 1998
In exercise of the powers conferred by sub-
section (2) of Section 8 of the Foreign
Exchange Regulation Act, 1947 (Act No. VII of
1947), and in supersession of State Bank of
Pakistan Notification No. F.E. 1/91-SB dated
26th February, 1991, the State Bank of
Pakistan is pleased to permit:-
………………………………………………………….
b. Any person maintaining an account
expressed in a foreign currency, and held
under any permission, general or otherwise,
granted by the State Bank of Pakistan to take
or send out of Pakistan, cheques or drafts
drawn on such account.
F.E. Circular No. 17
………………………………………………………….
No transfer of funds abroad shall be made
through illegal channels such “Hundi
system”. All transfer of funds shall take place
through banking channels, following the
instructions given to the banks from time to
time for the purpose.”
After examining the above noted Circulars and Notifications,
it is unclear how these help the respondents prove the charge
of money laundering against the petitioner. There is no
allegation or material on record suggesting that the petitioner
or Mrs. Isa transferred money to the United Kingdom via
illegal means/methods. Therefore, this novel argument is
theoretical and speculative in content. The contention also
lacks force for the simple reason that the offence of money
laundering is governed by a special law, AMLA, since 2010. It

137
is by now well-established that when a special law regulates a
particular subject area then another law enacted for a
different special purpose cannot affect the subject matter
governed by the former special law. This is a principle of
construction recognised by our Superior Courts. For instance,
in the case of Ghulam Mustafa Jatoi Vs. Additional District
& Sessions Judge (1994 SCMR 1299) this Court approved
the principle that statutes which are not pari materia cannot
govern each other’s interpretation:
“11: In this regard, it may be pertinent to

refer to the case of Mahbub Ahmad v. First
Additional District Judge and another (PLD
1976 Karachi 978)… It may be advantageous
to reproduce the relevant portion which
contains in para. 8 thereof and which reads
as follows:--
8. “… It may also be pointed out that unless
the provision is `pari materia', it is not correct
to construe a provision with reference to
another provision in a different Act, for it is
the language of the provision which is the
determining factor.”
12. Reference may also be made to the case
of Mrs. M. Waterfield v. C.E. Lee Anan and
another (PLD 1957 (W.P.) Lahore 882) and
the case of Salah Muhammad v. Muhammad
Roz and others (PLD 1962 (W.P.) Lahore 68).
In both the cases, it has been held by
Division Benches of the Lahore High Court
that a statute cannot be interpreted in the
light of language used in another statute
except when the language which has to be
interpreted is, in the context, open to more
meanings than one.
13. We may also refer to the case of Hari
Khemu Gawali v. The Deputy Commissioner
of Police, Bombay and another (PLD 1957 SC
(India) 90), in which the Indian Supreme
Court has inter alia held that it is not safe to
pronounce judgment on the provision of one
Act with reference to decision dealing with
the other Acts which are not pari materia.”
138
(emphasis supplied)
Even Halsbury’s Laws of England (Volume 96, 2018) has
affirmed this viewpoint:
“809: Comparison between Acts not in pari

materia or the decisions on them affords no
reliable guide to their construction, since the
same words used in different statutory codes
may have different meanings in each code,
according to the intentions of the Acts and
the mischiefs they are designed to prevent.”
112. It is, therefore, only logical that Circulars and
Notifications (which are only subordinate legislation) issued
under FERA cannot control the subject of money laundering
defined and governed by AMLA. However, learned counsel for
the respondents also relied upon the Anti-Money Laundering
Regulations, 2008 (“2008 Regulations”) to argue that the
charge of money laundering in the Reference was simply an
allusion to the regime in general. But this reliance of learned
counsel is flawed because these were framed under the Anti-
Money Laundering Ordinances of 2007 and 2009 (“AML
Ordinances”). These AML Ordinances did not recognise the
conduct attributed to the petitioner as a predicate offence.
Consequently, reference to the 2008 Regulations is of no
assistance to the respondents in justifying their allegation of
money laundering against the petitioner.
113. This brings us to the primary allegation in the
Reference against the petitioner: his failure to disclose the
London Properties of his wife and children in his wealth

139
statement. In the Reference it is alleged that this obligation is
imposed on the petitioner by virtue of Section 116(1)(b) of the
Ordinance. However, learned counsel for the petitioner
submitted that no such obligation could be imposed on the
petitioner under Section 116(1)(b) because this provision only
applies to the assets and liabilities of a dependent spouse and
minor children of a declarant taxpayer. On the other hand,
the petitioner’s wife is a financially independent taxpayer and
their children are adults. They possessed these attributes
even when the properties in question were acquired. Learned
counsel also stated that no notice had been received either by
the petitioner or Mrs. Isa under Section 116(1) of the
Ordinance, therefore, it was not legally possible to level a
charge of non-declaration of assets against the petitioner.
114. We have examined the record which reveals that
indeed no notice was ever issued to Mrs. Isa or the petitioner
under Section 116(1). Mrs. Isa did receive notices for the
years 2015, 2017 and 2018 but those were issued under
Section 114(4) of the Ordinance for her failure to file her tax
returns. Moreover, on a perusal of the Reference it became
evident that the entire case under Section 116 of the
Ordinance rested on the opinion of an Assistant
Commissioner (Inland Revenue) who thought that the
petitioner was liable to disclose the London Properties of his
wife and children. This is evidenced from para-7 of the
Reference:
140
“7. The precise observations recorded by the

learned Assistant Commissioner (IR) in his
letter bearing No. 112 dated 10th May, 2019
(see Attachment VIII & IX) addressed to the
Commissioner (IR), AEOI/International Taxes
Zone, Large Taxpayers’ Unit, Islamabad as
follows:-
“(e) Offshore Properties
The properties’ documents in respect of
which are attached with the complaint are as
under:-
# Owners Property Value Purchase
date
1 Ms Sehar Isa 90 Adelaide GBP 28.06.2013

Khoso & Ms Road London 270,000 (transferred
Zarina E10 5NW 08.07.2013)
Montserrat Khoso
Carrera
2 Ms Zarina 40 Oakdale Road GBP 27.03.2013)
Montserrat Khoso London E11 4DL 245,000
Carrera & Arslan
Isa Khoso
3 Ms Zarina 50 Coniston 20.10.2011
Montserrat & Ms Court, Kendal
Sehar Isa Khoso Street, London
W2 2AN
(B) Findings:-
(i) That, Mr. Justice Qazi Faez Isa did not
declare the above offshore properties owned
by his wife (and children).
(ii) That, Mrs. Sarina Isa Khoso is wife of Mr.
Justice Qazi Isa as per CINC 42301-
9722154-2, who also file her tax return for
Tax year 2014.
(iii) That, Mr. Justice Qazi was liable to
declare the above offshore properties as per
provisions of Section 116(1)(b) which
mandate every taxpayer to file the Wealth
Statement in the prescribed format declaring
therein “the total assets and liabilities of the
persons and his spouse, minor children, and
other dependents.”
(iv) That, Mrs. Sarina M. Isa (wife), Sehar Isa
Khoso (daughter), and Arslan Isa Khoso (son)
also did not declare the above properties
since they did not file their tax declarations
for the Tax Year 2014-2018.””
141
115. It appears from this extract that the mainstay of
the respondents’ allegation against the petitioner under
Section 116 of the Ordinance is based on a literal reading of
Section 116(1)(b) ibid. The respondents’ interpretation of the
said provision has never been tested judicially before. Indeed,
during arguments learned counsel for the respondents
candidly acknowledged that there was no case-law in our
jurisprudence on the subject of declaration by a taxpayer of
the assets of his spouse and children under Section 116(1)(b).
However, learned counsel did provide us with the wealth
statement form issued by the tax authorities under the
Income Tax Rules, 2002 for the tax year 2013. What is
notable about this form is that it only required a taxpayer to
declare the assets of his spouse who had not filed a return of
income along with a wealth statement independently.
Moreover, only the assets of minor children had to be
disclosed. It is an admitted fact that Mrs. Isa filed a return
and wealth statement in the tax year 2013. As such, it seems
that in the tax year 2013 the petitioner was under no
obligation to declare the London Properties in his wealth
statement. However, this is only the tip of the ice-berg. On an
examination of the (several) instructions published by FBR for
completing a wealth statement in subsequent tax years, we
have noticed that the FBR is itself unsure about the true
142
interpretation of Section 116(1)(b) of the Ordinance. At this
stage, it would be appropriate to reproduce this provision:
“116. Wealth Statement.— (1) [The]

Commissioner may, by notice in writing,
require any person [being an individual] to
furnish, on the date specified in the notice, a
statement (hereinafter referred to as the
"wealth statement") in the prescribed form
and verified in the prescribed manner giving
particulars of —
………………………………………………….........
(b) the total assets and liabilities of the
person’s spouse, minor children, and other
dependents as on the date or dates specified
in such notice”
116. As already mentioned above, in the tax year 2013
the FBR expected taxpayers to only declare assets of a spouse
who had not filed a return and wealth statement. However, in
the tax year 2015, FBR altered the scope of this duty. It asked
taxpayers to declare only those assets of their spouse and
minor children which had been created by funds provided by
the taxpayer. In 2016, FBR again changed its interpretation of
Section 116(1)(b). Now a taxpayer had to declare the assets of
his spouse and minor children, whether in Pakistan or
abroad, if they had been created by funds provided by the
taxpayer. It is this last interpretation which has continued till
date. Amongst all of these varying constructions of Section
116(1)(b), there is also the overriding difficulty that the
language of Section 116(1)(b) is open to more than one
interpretation. In fact, it is perhaps for this reason that both
the parties before us have come up with completely divergent

143
analyses of Section 116(1)(b). The respondents have opted for
the literal interpretation under which no condition of
dependency is attached to the term “spouse” because each
and every word in Section 116(1)(b) is given its ordinary and
natural meaning. This would indicate that taxpayers are
obligated to give particulars of the total assets and liabilities
of their spouses, irrespective of whether the said spouses are
independent or dependent. However, learned counsel for the
petitioner chose a different route. He applied the principle of
statutory interpretation called noscitur a sociis. This Court in
Ghulam Rasool Vs. Muhammad Hayat (PLD 1984 Supreme
Court 385) defined the aforementioned principle as follows:
“Page 390: …Nevertheless, there is a rule of

interpretation well-understood and
recognised in law and it is of noscitur ex
soci[i]s. Maxwell on Interpretation Statutes
(12th Edn., page 289) explains it as follows :-
"Where two or more words which are
susceptible of analogous meaning are
coupled together noscitur ex soci[i]s they are
understood to be used in their cognate sense.
They take as it were the colour from each
other the meaning of the more general being
restricted to a sense analogous to that of less
general."
Crawford on Statutory Construction (p. 325)
comments on this rule of interpretation as
follows - "In order to ascertain the meaning of
any word or phrase that is ambiguous or
susceptible to more than one meaning the
Court may properly resort to the other words
with which the ambiguous word is associated
in the statute. Accordingly, if several words
are connected by a copulative conjunction a
presumption arises that they are of the same
class unless of course a contrary intention is
indicated. On the other hand, the maxim
noscitur ex soc[i]is is not to be applied where
the meaning of a word is clear and
unambiguous. Nor is it to be used so as to
render general words useless. Like all other
144
principles of construction it is to be used only

as an instrumentality for determining the
intent of the Legislature where it is in
doubt."”
(emphasis supplied)
Under the above noted construction, the petitioner would only
be obligated to give particulars of the total assets and
liabilities of his dependent spouse because the term spouse
would draw its characteristics from the other words used in
Section 116(1)(b), namely, the terms ‘minor children’ and
‘other dependents.’ Nonetheless, as is evident from the above
quoted passage, even this method of interpretation is not
absolute.
117. Be that as it may, we are not inclined to decide
this issue on the basis of either the respondents’ present
interpretation of Section 116(1)(b) or on the basis of the
petitioner’s interpretation of the said provision. Neither have
produced any case-law or other relevant material to support
their respective versions of Section 116(1)(b). Even the FBR’s
own instructions on completing a wealth statement form are
unclear and have wavered from year to year. In such a
situation, we consider that it would be better if this matter is
determined in the first instance by the hierarchy of
specialised fora specified in the Ordinance.
118. However, it has become plain that the respondents
have framed the Reference against the petitioner on the
untested opinion of an Assistant Commissioner (Inland

145
Revenue) without giving much weight to the fact that their
interpretation of the law in this area is unsupported by
authority. Accordingly, the respondents’ decision to charge
the petitioner with a violation of Section 116 of the Ordinance
on the basis of an interpretation that is devoid of judicial
consideration let alone approval, and which lacks any
definitive and consistent departmental practice is conjectural.
When confronted, learned counsel for the respondents
submitted that the Reference was not based solely on an
alleged violation of Section 116 of the Ordinance. Instead, he
argued that Section 116 was just a reference point in
presenting the respondents reservations about the alleged
conduct of the petitioner. He stated that the real case against
the petitioner rested on violations of Articles II and III of the
Code of Conduct. That the respondents concern was not the
discharge of tax liability by the family of the petitioner but the
source that had funded the purchase of the London
Properties. With all due respect to learned counsel, this
argument prematurely assumes both the lack of funds with
Mrs. Isa and the commission of misconduct by the petitioner.
According to our understanding of the duties of a Judge
under the CoC, noted and discussed earlier in this judgment,
a Judge may be made answerable for the financial affairs of
his family members. However, we do not consider that such
liability accrues in respect of speculative allegations. As the
following narrative will confirm, this is precisely what the

146
respondents attempted to achieve by preparing the present
Reference.
119. On 17.06.2020, the petitioner of his own volition
appeared in Court during the course of submissions by
learned counsel for the respondents. He sought permission
for Mrs. Isa to orally apprise the Court through video link
about the improprieties committed by the respondents in
preparing the complaint against her as she could not file an
application or affidavit or provide documents to explain her
position because she did not have a lawyer. Being personally
affected by our proceedings, she sought to make a statement
without oath through video link from her home. The Bench
briefly conferred on the said request and in exercise of its
jurisdiction under Article 187 of the Constitution to do
complete justice granted her permission to address the Court
on 18.06.2020. In her address to the Court, Mrs. Isa
complained that neither she nor her authorised
representative (AR) had been served with notices by the tax
authorities under Section 114 of the Ordinance. These were
apparently mailed to her outdated address at Patel Court,
Bath Island, even though her new address, Phase II DHA was
on the record of the tax authorities. She stated that the
required amount of foreign currency was transferred through
banking channels, a fact which was in the knowledge of the
SBP, and that the tax authorities were aware that apart from
her income from taxable sources she also had a stream of

147
non-taxable agricultural income from agricultural land
situated in Jacobabad, Sindh and Nasirabad, Baluchistan.
We informed her that we could not hear or decide upon the
merits which was an issue that could only be determined by
the SJC. However, it became clear to us that Mrs. Isa was
prima facie willing to offer an explanation for the source of
funds used to purchase the London Properties. But such
explanation had not been called for or considered by the tax
authorities. As a result, the Reference was prepared against
the petitioner in the absence of any determination by the tax
authorities on the liability of either the petitioner or Mrs. Isa.
120. Consequently, the plea of the respondents that the
case against the petitioner rests on his alleged violations of
the CoC and not his infringements of Section 116 of the
Ordinance subtly improves their original stance. However, to
establish the source of funds for the acquisition of the London
Properties, the requirements of due process under Article 4
and Article 10A of the Constitution mandate that the first
person concerned, namely, Mrs. Isa ought to be given an
opportunity to explain her sources of funding for the London
Properties and the reasons for not declaring such properties
in her wealth statement. Without granting such opportunity,
the framing of the Reference against the petitioner was
premature, hypothetical and impulsive. Accordingly, even this
allegation against the petitioner is entirely presumptive.

148
APPLICATION OF MIND BY THE PRESIDENT
121. Another flaw in the Reference highlighted by the
learned counsel for the petitioner is the President’s failure to
form an opinion in terms of Article 209(5) of the Constitution.
For convenience, this provision is again reproduced:

………………………………………………………….
Court-
into the matter.”
(emphasis supplied)
Sub-Article (5) of Article 209 of the Constitution makes it
plain that before directing the SJC to hold an inquiry against
a Supreme Court Judge, the President should have formed
the opinion that the said Judge may be guilty of misconduct.
However, the basis upon and the means by which the
President needs to form his opinion is not readily discernible
from Article 209(5). To comprehend the meaning and object of
this function of the President, one needs to consider the
nature of powers and functions that the President possesses
under the Constitution. In the first instance, an analysis of

149
the President’s responsibility to form an opinion rendered in
the additional note by Justice Chaudhry Ijaz Ahmed in the
CJP case (supra) indicates one point of view:
“Page 247: Sub Article (5) of Article 209 casts

duty upon the President of Pakistan to form
his opinion after receiving information qua
the judges of the superior courts with regard
to physical or mental incapacity to perform
duties of his office or has been guilty of
misconduct. The President of Pakistan has to
form his opinion after application of mind
reasonably, objectively with cogent reasons
based on relevant material in good faith after
application of mind.”
(emphasis supplied)
Based on the facts and needs of that case, the said learned
Judge concluded that the President’s failure to perform his
Constitutional duty had fatal consequences:
“Page 246: The perusal of record shows that

neither the President nor the Prime Minister
under the mandatory provisions of the
Constitution has deliberated upon the matter
and formed opinion by applying their
independent mind. Hence, non-application of
mind and non- formation of opinion is fatal
and render the subsequent proceedings void.”
122. It may be noted at the outset that the above noted
view is not shared by the majority judgment in the CJP case
(supra) which is silent about the substance of the President’s
opinion and the procedure for arriving at such an opinion
under Article 209(5). However, during oral submissions,
learned counsel for the petitioner argued that unlike the
above quoted view the President had simply followed the PM’s
advice for sending the Reference to the SJC. In doing so he

150
had not formed an opinion as required by Article 209(5) of the
Constitution. Accordingly, the Reference framed against the
petitioner lacked an essential Constitutional ingredient under
Art 209(5), namely, the application of mind by the President.
It was therefore seriously deficient. To support his contention,
he relied on paragraph 18 of the Reference (ref: Const. P. No.
17 of 2019, Part II) which reads as under:
“Page 80: As per the advice of the Prime

Minister I have formed an opinion that Mr.
Justice Qazi Faez Isa may have been guilty of
misconduct; hence I hereby direct the
Supreme Judicial Council to inquire into the
matter…”
123. On the other hand, learned counsel for the
respondents argued that the President had correctly formed
his opinion as envisaged by Article 209(5) of the Constitution.
He submitted that the President was provided with a
comprehensive summary from the Ministry of Law and
Justice along with all the relevant attachments and the PM’s
advice. He stated in Court that the President discussed the
Reference with the Law Minister, a statement which he
elaborated upon in his written arguments. It seems that after
the Reference was sent to the President he not only reviewed
it with the PM but also with the Law Secretary, the AG and
the Law Minister. Input was also sought from Secretary to the
President.
124. The Reference as it was sent to the President
contained multiple allegations against the petitioner. These

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allegations involved both pure questions of law and mixed
questions of law and fact. One such question was: whether
the petitioner Judge (or for that matter any other citizen of
Pakistan) is obligated under Section 116 of the Ordinance to
declare the assets of his independent spouse? Another issue
that arose was: whether the funds employed by Mrs. Isa to
purchase the London Properties comprised proceeds of crime
in order to involve the commission of the offence of money
laundering under AMLA? To ponder over these matters or
indeed to form an opinion on them required legal knowledge
which the President admittedly himself does not possess. In
such a situation, it became incumbent upon him to seek legal
advice from persons who were well-versed in tax and financial
matters.
125. Although it is not for this Court to specify a list of
persons from whom legal advice may be sought by the
President, however, we can set out the persons who should
not be approached by the President for legal advice on a
reference under Article 209 of the Constitution. Fairness and
objectivity dictate that those involved in the investigation and
framing of the reference may brief the President but cannot
advise him on whether it is maintainable and appropriate for
inquiry by the SJC. This is because there is a clear conflict of
interest for the architects of the reference to opine on the
weaknesses of their work. But this is precisely what
happened in the present Reference. The President discussed

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the Reference and its legal aspects with the AG and the Law
Minister. As senior functionaries of the Federal Government,
both gentlemen were admittedly involved in the framing of the
Reference against the petitioner. Under Article 209(5) of the
Constitution, the opinion formed by the President is expected
to be considered, fair and objective. This is because under
Article 48(1) ibid the President has the power to return the
advice by the PM or the Cabinet for reconsideration. In order
to be objective and fair he should rely upon counsel and legal
experts not linked with the framing of the reference or
working for the Federal Government. Irrespective of whether
such qualities, which have to form part of the President’s
opinion, are present in the officers of the Federal Government,
their consultation becomes questionable on grounds of
conflict of interest. The fact that the President also received
legal input from his Secretary is unhelpful because the
respondents do not claim his legal advice to have been
rendered in writing. The President’s failure to note under
Article 48(1) a defect of gross illegality in the Reference,
namely, an assumed view of Section 116 of the Ordinance
and AMLA, suggests that the legal basis of the allegations
made therein were not tested. We reckon that this happened
because the President’s opinion was influenced by the
inadmissible advice of individuals who were involved in the
preparation of the Reference. In these circumstances, it

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cannot be said that the President formed an informed opinion
in terms of Article 209(5) of the Constitution.
126. Under the Constitutional scheme, one needs to
understand the reason for the President’s responsibility to
apply his mind to form an opinion under Article 209(5). The
starting point for such an examination should be this
Constitutional provision itself. What is of significance for us is
that after the 18th Amendment, Article 209(5) is the only
provision in the Constitution which requires the President to
form his opinion. However, prior to the 18th Amendment,
Article 58(2) (reproduced under the heading ‘Authorisation for
Investigation’) of the Constitution also imposed the same
obligation on the President.
127. On a careful perusal of these Articles, it becomes
clear that there is a distinction between the “opinion” to be
formed by the President under the two provisions. Article
209(5) of the Constitution simply requires the President to
form an opinion whereas Article 58(2) ibid required the
President to form his opinion in the exercise of his discretion.
Consequently, the President’s opinion under Article 209(5) is
directed by sub-Article 1 of Article 48 whereas his opinion
under Article 58(2) was controlled by sub-Article 2 of Article
48. To understand why the application of mind is inherent in
the formation of opinion under Article 209(5), we need to
appreciate the meaning assigned to the President’s opinion

154
formed under a discretionary power as specified in Article
58(2). In this regard, reliance is placed on the case of
Federation of Pakistan Vs. Haji Muhammad Saifullah
Khan (PLD 1989 SC 166) wherein the Court settled the
debate on this matter:
“Pages 189-190: The discretion conferred by

Article 58(2)(b) of the Constitution on the
President cannot, therefore, be regarded to be
an absolute but is to be deemed to be a
qualified one, in the sense that it is
circumscribed by the object of the law that
confers it. It must further be noted that the
reading of the provisions of Articles 48(2) and
58(2) shows that the President has to first
form his opinion, objectively and then, it is
open to him to exercise his discretion one
way or the other, i.e. either to dissolve the
Assembly or to decline to dissolve it... An
obligation is cast on the President by the
aforesaid Constitutional provision that before
exercising his discretion he has to form his
'opinion' that a situation of the kind
envisaged in Article 58(2)(b) has arisen which
necessitates the grave step of dissolving the
National Assembly… Thus, though the
President can make his own assessment of
the situation as to the course of action to be
followed but his opinion must be founded on
some material.”
(emphasis supplied)
The above quoted excerpt establishes that notwithstanding
the element of discretion which was available to the President
under Article 58(2), his opinion had to be based on some
material and had to be objective. There is no reason why the
President’s opinion under Article 209(5) (which is not
accompanied by any discretion) should not be governed by
the same stringent principles. When the President is
performing his function under Article 209(5) he is ultimately

155
bound by the advice of the PM or the Cabinet as the case may
be under sub-Article (1) of Article 48. However, the proviso to
Article 48(1) ibid authorises the President to return, within
fifteen days, the advice for reconsideration. Therefore, the
President’s power clearly grants him the jurisdiction to
evaluate the worth of the advice tendered to him. If he is so
inclined he may require the same to be reconsidered once by
the PM or the Cabinet. Consequently, even Article 48(1)
envisages that the President when performing his functions
under this provision will apply his mind to the information
before him. Otherwise the purpose of inserting a proviso,
which permits the President to return the advice, becomes
redundant if the President only has to mechanically agree
with the PM or Cabinet.
128. Moreover, it has been noted above that the object
of Article 209(5) is to protect the security of tenure of Superior
Court Judges. Therefore, this Constitutional provision is
intrinsically connected with the independence of judiciary. We
have already observed that an independent judiciary is
critical to the survival of a just democracy. By requiring the
President, as the highest Constitutional authority in the
country, to apply his mind and form an objective opinion in
the exercise of his jurisdiction under the proviso to Article
48(1) of the Constitution before sending a reference to the
SJC for inquiry, it is ensured that this fundamental right of

156
the people is protected from arbitrary interference by the
Executive.
129. Be that as it may, learned counsel’s submission
that the President had not formed an opinion in terms of
Article 209(5) of the Constitution was focused on the fact that
the President had solely based his opinion on the advice of
the PM. Since his initial contention, that the President’s
opinion under Article 209(5) ought to be formed in the
exercise of Presidential discretion under Article 48(2),
conflicted with the 18th Amendment to the Constitution,
learned counsel for the petitioner argued that the public
importance of a reference under Article 209(5) was such that
it required advice to the President to be tendered by the
Cabinet rather than the PM. However, the short and simple
answer to the said objection of learned counsel can be found
in the ROB which provides in its Schedule V-B, serial number
35 that matters relating to ‘Reference to Supreme Judicial
Council’ be approved by the President on the advice of the
PM. The rationale for this rule becomes evident when the list
of cases requiring Cabinet approval is examined. This list is
contained in Rule 16(1) of the ROB:
16. Cases to be brought before the

Cabinet.— (1) The following cases shall be
brought before the Cabinet:-
(a) proposals for legislation, official or non-
official, including money bills;
(b) promulgation and revocation of
Ordinances;
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(c) the budgetary position and proposals

before the presentation of an Annual Budget
Statement and a Supplementary Budget
Statement or an Excess Budget Statement
under Articles 80 and 84;
(d) proposals for levy, abolition, remission,
alteration or regulation of any tax and
floatation of loans;
(e) a reference to the Supreme Court for
advice on a question of law under clause (1)
of Article 186;
(f) generation of electricity and laying of inter-
provincial transmission lines;
(g) omitted vide S.R.O 368(1)/2010 dated 1st
June 1, 2010
(h) proposals for signing of negotiated
instruments with foreign countries and
approval for ratification of the instruments:
(i) important reports and documents required
to be laid before the Assembly or Senate;
(j) cases involving vital political, economic
and administrative policies;
Note.- Cases of this nature shall first be
brought to the notice of the Prime Minister by
the Minister-in-Charge. The Prime Minister
will decide whether any such case should be
brought before the Cabinet.
(k) case which the Minister-in-Charge
considers important enough for discussion in
the Cabinet;
(l) other cases required to be referred to the
Cabinet under the provisions of these rules;
and
(m) any case desired by the Prime Minister to
be referred to the Cabinet.
(emphasis supplied)
A perusal of this provision reveals that the matters which are
placed before the Cabinet for approval mainly consist of
proposals for legislation and issues pertaining to the economy
such as fiscal, budgetary and monetary proposals including
proposals for levy or abolition of taxes. Issues involving vital

158
political, economic and administrative policies, international
treaties and agreements and any case so desired by the
Minister-in-Charge or the PM are also referred to the Cabinet.
Accordingly, generally matters that affect a large section of
the public or relations between the Federation and the
Provinces in the political, economic and administrative area
fall within the scope of Cabinet advice.
130. A similar mandate for Cabinet decisions also
exists in foreign democratic jurisdictions. In Australia the
Cabinet Handbook (13th Edn) sets out the following issues
which require the Cabinet’s deliberation:
“SECTION 4
CABINET BUSINESS
Matters for Cabinet Consideration
………………………………………………………….
72: The following is an indication of the kind
of issues that would normally require
consideration by the Cabinet:
a. Proposals relating to the delivery of the
Government’s priorities
b. Significant or controversial policy issues
c. Proposals affecting the Government’s
financial position, or important financial
commitments
d. Proposals that are challenging to
implement due to their complexity or timeline
for delivery
e. Significant matters affecting state and
territory government relations
f. The most significant international business,
including international treaties and
agreements
g. National emergencies, including any
decision to take military action
h. Proposals that affect Australia’s
constitutional arrangements
159
i. Proposals requiring significant new or

amendments to legislation or regulations
j. Any significant or controversial exercise of a
minister’s statutory power
k. Significant Government appointments”
(emphasis supplied)
131. A comparable list of subject matters is also found
in other foreign jurisdictions such as Canada, United
Kingdom and New Zealand. What is significant for our
purposes is that these lists demonstrate a consistent
international practice that only issues that have a wholesale
and widespread effect on the State, its society and political
economy belong to the category of cases that need
consideration by the Cabinet. The other spheres of State
functions which lack the above features may be performed on
the advice of the PM with the involvement of Cabinet not
being necessary. Advice in relation to the filing of a reference
is a function of the President which falls in the latter
category. It is neither a legislative measure nor a political,
economic or administrative proposal. It is also not a policy
decision. As such it lacks the features that qualify for
consideration from and debate by the Cabinet. In fact, if one
examines in detail Schedule V-B of the ROB, it becomes plain
that not only matters pertaining to the Supreme Judicial
Council for the removal of Judges of the Superior Courts but

160
also the removal of persons holding other key Constitutional
Posts are decided on the advice of the PM:
“SCHEDULE V-B
[Rule 15-A(1)]
LIST OF CASES REQUIRING ORDERS OF
THE PRESIDENT ON THE ADVICE OF THE
PRIME MINISTER
………………………………………………………….
2D. Appointment, resignation and removal of
Provincial Governors, determination of their
salaries, allowances and privileges
………………………………………………………....
19. Auditor General of Pakistan:
(i) Appointment, removal, term of office
and terms and conditions of service;
………………………………………………………….
33. Federal Shariat Court: number of Judges,
their appointments, transfer, resignation,
removal, allowances and privileges.
………………………………………………………….
35. Reference to Supreme Judicial Council.
………………………………………………………….
36D. Council of Islamic Ideology:
(i) Appointment, resignation and removal
of members and Chairman,”
(emphasis supplied)
132. Consequently, keeping in view the nature of cases
which are deliberated upon by the Cabinet and the fact that
the PM is consistently the single Constitutional authority who
advises the President with regards to the removal of persons
in Constitutional Posts, we hold that in the filing of a
reference the President is bound to act on the advice of the
PM and not the Cabinet. Therefore, it is only logical that in

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deciding whether to send the Reference against the petitioner
to the SJC the President relied on the advice of the PM.
133. Furthermore, if the reference is substantive,
cogent, coherent, rational and lawful, then the President
simply has to record his assent. There is no additional
obligation on him to set out his separate reasons. However, if
the reference is defective factually and/or legally then the
President must state his reasons for disagreement and call for
reconsideration of the matter by the PM in the light of those
reasons. If the President subsequently disagrees even with the
reconsidered advice, then he is bound by Article 48(1) to
endorse the said advice leaving it for the SJC to analyse the
merits of the reference sent by the President.
134. It is pertinent to state here that the above
discussion means that the Federal Government must set out
its reasons for preparing and sending a reference against a
Judge of the Superior Court. In fact, the summary and
statement of reference prepared by the Ministry of Law for the
PM and the President are the documents which contain these
reasons. It is these documents which contain the crux of the
reference against a Superior Court Judge, and therefore they
need to be factually and legally complete. Failure to comply
with this requirement will render the reference unsustainable.
135. Be that as it may, the crucial question remains
whether in light of what has been discussed above, it can be

162
said that the President applied his mind to the facts alleged in
the Reference against the petitioner. As noted previously in
this section, the President in forming his opinion sought the
advice of the Law Minister and AG, both of whom were
involved in the preparation of the Reference and therefore had
a conflict of interest. Additionally, we have held under the
heading ‘Validity of the Allegations in the Reference’ that the
accusations against the petitioner have been made
prematurely in the absence of statutory notice to Mrs. Isa to
explain her sources of funds. Likewise, there was no evidence
to support the allegations made under FERA and AMLA. Both
these facts went unnoticed by the President. Consequently,
keeping in view these circumstances, we find that the
independent application of mind by the President is lacking in
the present case. Instead he has followed the advice tendered
to him without ascertaining its correctness. This is contrary
to the requirements of both Article 209(5) and Article 48(1) of
the Constitution and therefore renders the Reference
defective.
CONCLUSION FOR DEFECTS IN THE REFERENCE
136. In the light of our discussion, noted above, it has
become clear that there are multiple defects in the Reference.
Briefly, these are:

163
i. No authorisation for investigating the affairs of the
petitioner was given by the President and PM. Instead
the authorisation of the Law Minister was obtained;
ii. No notice was issued to Mrs. Isa as required under
Section 116(1) of the Ordinance prior to the filing of the
Reference;
iii. The petitioner was presumed to be under the obligation
to declare the assets of his independent wife and adult
children on the basis of an unsettled and disputed
interpretation of Section 116(1)(b) of the Ordinance;
iv. There was neither any evidence nor the nomination of a
predicate offence in the Reference to support the
allegation of money laundering against the petitioner;
v. Likewise, there was no evidence that the petitioner had
violated the regime under FERA and even the relevant
provisions from the said law were not specified in the
Reference;
vi. The President received inadmissible advice from the AG
and Law Minister, the chief architects of the Reference,
on the strengths and weaknesses of the Reference;
vii. The President did not get considered, fair and objective
advice from a third party on the questions of law noted
in the Reference;
viii. The President failed to notice the various legal and
procedural defects in the Reference;

164
ix. The President did not form a considered opinion under
Article 209(5) of the Constitution;
x. As there was no valid authorisation for the investigation
(noted in i above), the respondents illegally accessed the
tax records of the petitioner and Mrs. Isa; and
xi. Mrs. Awan made contemptuous remarks about the
petitioner in public.
These illegal acts of the respondents depict their utter
disregard of the law. Filing a reference under Article 209 of
the Constitution that is signed by the President and which
presents a charge sheet against a Judge of the Superior
Courts is a matter requiring utmost prudence and caution by
its framers. However, in the present case the actions of the
respondents have violated not only the express provisions of
the Constitution, the ROB, the Ordinance and AMLA but have
also ignored the law laid down in the CJP case (supra) which
specifically set out certain safeguards to protect Superior
Court Judges from arbitrary actions of the Executive.
Therefore in essence, the respondents have paid scant
attention to the mandate of the relevant laws governing the
field of Presidential references. In these circumstances, the
errors committed by them in the preparation and framing of
the Reference cannot be termed as mere illegalities. Instead,
in the context of Article 209 their errors amount to a wanton
disregard of the law. Being arbitrary and illegal these act have
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ceased to be actions contemplated by any of the applicable
laws such as the Constitution and the Ordinance (amongst
others). As a result, although the preparation and framing of
the Reference against the petitioner is not patently motivated
with malice in fact, the scale and degree of the illegalities are
such that the Reference is deemed to be tainted with mala
fide in law. For this reason, the Reference is hereby quashed.
SHOW CAUSE NOTICE ISSUED BY THE SUPREME

JUDICIAL COUNCIL
137. We have already observed in this judgment that
the SCN dated 17.07.2019 issued by the SJC is almost
entirely based upon the information given and the resulting
allegations made in the Reference. In the preceding
paragraphs we have struck down and quashed the Reference
for being legally defective. The SCN issued by the SJC derives
its substance from this quashed Reference. Therefore, except
for the underlying factual information of Mrs. Isa’s ownership
of the undeclared London Properties, the remaining contents
of the said Reference are without foundation. Accordingly, the
narrative in the notice alleging misconduct against the
petitioner and the subsequent direction to file a response
have lost force and cannot be sustained. Even the not
denied/admitted underlying information about ownership of
the London Properties by Mrs. Isa and her children requires
further probe by the respondents on the point of absence of

166
declared lawful sources for the purchase of such properties to
maintain a Reference against the petitioner. As a result, the
notice dated 17.07.2019 cannot survive in limbo and must
abate. Indeed, without the Reference the SCN is just a “blank
piece of paper” (ref: R (on the application of Miller) V The
Prime Minister [2019 UKSC 41 at para-69]) which cannot
become the basis for any subsequent inquiry against the
petitioner. Consequently, the ongoing proceedings against the
petitioner in the SJC also stand abated.
REFERRAL TO FEDERAL BOARD OF REVENUE
138. It would now be appropriate to elaborate upon our
reasons for directing the FBR to commence tax proceedings
against Mrs. Isa and her children, notwithstanding our order
to quash the Reference against the petitioner. Our decision to
take such a step was primarily based on two grounds: to
establish that Judges of the Superior Court are answerable
for allegations casting aspersions not only on their personal
integrity but also on the integrity of the institution; and to
honour the petitioner’s plea that the allegation of absence of
source of funds and money laundering must be first put to
Mrs. Isa who is an independent taxpayer.
139. Since the start of these proceedings all the learned
counsel in the present and connected petitions have termed
their case a struggle for the independence of the judiciary.

167
Learned counsel for the petitioner repeatedly urged before
this Court that unless the Reference against the petitioner
was quashed, it would undermine the independence of the
judiciary. However, what has escaped the attention of learned
counsel during this intense discourse is another equally
important fundamental principle of the Constitution, namely,
the accountability of the Judges of the Superior Courts. An
independent judiciary is certainly a necessity for any civilised
society governed by laws to prosper and thrive. But in utmost
good faith neither Judges nor the institution can retain the
public trust when serious stigmas are cast on their integrity.
Recalling the quotation from the Holy Quran at the start of
this judgment, the institution cannot be perceived to be
ignoring an unpleasant allegation of undeclared foreign assets
of a family member of a Judge.
140. In this regard, it may be mentioned that the CJP
case (supra) is distinguishable from the facts and
circumstances of the present case. In the CJP case (supra)
this Court quashed the reference against the (then) Chief
Justice Iftikhar Muhammad Chaudhry and brought the
matter to an end without further action on the information
contained in the reference against him. It is not at all difficult
to understand why the Larger Bench in that case adopted
such a course of action. It is because the reference filed

168
against the (then) Chief Justice was established on record to
be so manifestly motivated by the malice in fact of the military
ruler at the time that the allegations against the former were
rendered insignificant.
141. However, in the present case no finding of malice
in fact has been given. It is true that the Reference suffers
from grave legal defects. But the consequences of illegality of
an impugned action are different from those following a
finding of malice in fact. The illegalities in the present
Reference are a result of its careless and casual preparation.
These errors or defects do not erase Mrs. Isa’s ownership of
the London Properties, the primary fact which forms the basis
of the Reference and which is not denied by the petitioner.
Whilst the ownership of the London Properties is not
disputed, the source of funds for their purchase and the
mode by which these funds were transferred abroad require
explanation. Otherwise, an unexplained investment by the
spouse of a Judge of the Superior Courts, who is a holder of
public office, compromises the integrity of the learned Judge
and ultimately the probity and credibility of the institution
which he serves.
142. Rather than allowing the disturbing allegation
against the petitioner and his family to circulate and attract
innuendos thereby injuring the reputation and integrity of
both the petitioner and this Court, we adopted the fair,

169
impartial and transparent route of allowing Mrs. Isa and her
children to disclose the source of their funds to the relevant
authorities, namely, the FBR. Such a transparent course of
action is consistent with the CoC, the maintenance of
institutional integrity and the image of Judges as the neutral
and independent arbiters of law and justice. The matter of
undeclared and unexplained foreign wealth of public office
holders bears a stigma in Pakistan that these assets have
been acquired unlawfully (a stigma which applies with even
greater force since the PANAMA leaks on 03.04.2016).
Therefore, every public office holder including Judges of the
Superior Courts, officers of the armed forces, elected
representatives and public servants are accountable under
the law. Indeed, neither the institution of the judiciary nor the
other institutions of Pakistan can tolerate a contrary
perception. Consequently, all public office holders remain
accountable under their applicable legislation on misconduct.
By referring the issue of source of funding to the FBR for
verification from Mrs. Isa and her children, we have chosen
the path which in the first place should have been taken by
the respondents but which was casually ignored by them.
Therefore, by this referral the controversy surrounding the
allegation in the Reference will be settled.

170
143. It may be mentioned here that our decision to
refer the matter for verification to the FBR grants the
petitioner’s plea from the very start of the proceedings that
his wife and children should be asked about their source of
funds for the acquisition of the London Properties. This was
reiterated by learned counsel for the petitioner during
arguments. He submitted that a determination by the tax
authorities was essential to ensure that the due process
rights of the petitioner and his family under Article 10A of the
Constitution were not violated. Mrs. Isa also adopted a similar
stance in her statement, given through video link, on
18.06.2020 to the Court. To our minds the FBR being the
premier tax authority in Pakistan is the most well equipped to
deal with questions of a financial nature. It not only
maintains the complete tax records of taxpayers, including
those of Mrs. Isa’s, but also employs personnel who are well-
versed in comprehending and analysing financial and tax
records.
144. Moreover, as our short order bears out, by sending
the matter to the FBR we have assured the substantive and
procedural rights of each party under the Ordinance. These
rights and the right of the petitioner’s family to appeal against
adverse orders have specifically been preserved. Additionally,
we have ordered that only appropriate proceedings for

171
undeclared or unexplained assets be initiated against the
petitioner’s family which should be concluded within a
reasonable timeline.
SUO MOTU JURISDICTION OF SUPREME JUDICIAL

COUNCIL
145. Next, we in our short order also directed the
Chairman FBR to submit his report, regarding the
proceedings before the Commissioner (Inland Revenue), to the
SJC for its consideration. This was done to give SJC the
chance, if it so wished, to commence proceedings against the
petitioner in exercise of its suo motu jurisdiction. However, it
is reiterated that our short order dated 19.06.2020 merely
issues a direction to the Chairman FBR and in no way
obliges the SJC to take any action based on the report. The
SJC may do so of its own volition if it considers that the
report justifies any action against the petitioner. But it may
also file the report if it finds that the same contains no
substance/merit. The SJC is the only constitutional body
which can examine the conduct of a Superior Court Judge.
Therefore our direction for the disclosure of the findings and
the record of the verification proceedings by the FBR to the
SJC acknowledges the latter’s exclusive jurisdiction in this
matter. Consequently, the Chairman FBR’s report is a piece of
information to be evaluated by the SJC in its suo motu
jurisdiction.
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146. At the same time our short order has preserved
the rights of the affected taxpayers, Mrs. Isa and her children,
under the Ordinance. This includes the right to appeal
against the decision of the Commissioner or against any other
adverse order passed at the appellate stage. To our minds, the
two directions, namely, the filing of the report by the
Chairman FBR before the SJC and the protection of the
affected persons right to appeal, issued by us were necessary
in the interests of justice. The jurisdiction of the FBR is
concerned with taxing income whereas the jurisdiction of the
SJC is related only with the misconduct of a Judge.
Therefore, the proceedings and/or the outcome before one
forum do not affect those of the other forum. However, the
SJC may if so inclined in the exercise of its suo motu
jurisdiction conferred by the Constitution take into
consideration any proceedings before the tax authorities or
orders passed by them.
CONCLUSION
147. These then are the detailed reasons for our
findings recorded in the short order dated 19.06.2020.
148. Before parting with our judgment, we would like to
thank learned counsel for the petitioner in Const. P. No.17 of
2019 and the connected petitions as well as learned

173
counsel for the respondents, whose names are recorded in the
title of the judgment, for their invaluable assistance to the
Court. We also express our appreciation to all the learned
counsel who appeared before us for presenting their well-
reasoned arguments with grace and respect and for giving a
patient ear to the questions posed by the Hon’ble members of
the Bench.
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
Islamabad,
19.06.2020.
Irshad Hussain/Meher LC
APPROVED FOR REPORTING.

174
INDEX
Sr. No Topic Para Nos
1 Introduction 1-2
 Independence of Judiciary; Impartiality of Judges
2 Facts 3-12
 Factual matrix; Petitioner’s propositions;
Connected petitions with main propositions;
Respondents propositions; Recusal application by
counsel for petitioner; Short order dated
19.06.2020
3 Maintainability 13-23
 Art 184(3) and bar of Art 211 on jurisdiction;
Grounds of review of pre-reference proceedings;
Petition maintainable
4 Case against the Petitioner 24-42
 Reference to Art 209; Brief reference to the
allegations; Reference to Code of Conduct;
Reference to SJC Rules 2005; Meaning of
misconduct; Timing of misconduct;
Accountability for family’s conduct (Judicial
Estacode, Bangalore Principles, Amnesty
Schemes, Scope of obligation on Judges to be
informed of financial affairs of family members)
5 Mala Fides 43-64
 Meaning and standard of proof of mala fides;
Specific incidents raised by counsel for petitioner
as highlighting the mala fides of respondents
(Review petitions filed against Dharna Judgment,
Proxy complainant, Leaking of Reference, Firdous
Ashiq Awan’s press conference, Hastiness of
Government, Remarks of (former) AG in
Rejoinder); No malice in fact
6 Constitution of ARU 65-76
 Reference to Foreign Currency Accounts Cases;
Creation of ARU (Executive authority,
Notifications from Cabinet read with Rule 2(1)(ii)
ROB, Composition and TORs of ARU, Publication
of Notification in gazette); Appointment of
175
Shahzad Akbar as SAPM (Reference to

Muhammad Adil Chattha case); Both creation
and appointment legal
7 Surveillance and Illegally Collected Evidence 77-88
 Meaning of surveillance and its application to the
case; S216(3)(p) ITO 2001 – reference to previous
tax laws and Section 21 PPC; Judges are public
servants – includes discussion on Mrs. Isa’s
status; Tax information accessed illegally; UK
property record search; Application of Art 14 and
distinction from Benazir Bhutto case
8 Defects in the Reference 89-92
 Identification of the main defects; Quality of
Presidential reference as distinguished from other
methods of complaints against Judges
9 Authorisation for Investigation 93-103
 Reference to para 64 of CJP case; Reference to
item 21(10) of Schedule II of ROB; 18th
Constitutional Amendment; Analysis on who is
the competent authority for investigation
(Whether President to act on advice or in his
discretion, Whose advice is President to act on,
Investigation illegal)
10 Validity of Allegations in the Reference 104-120
Reproductions from Reference and SCN; FERA (No
submission by counsel for respondents, No merit in
the allegation); Money laundering (Reference to
provisions of AMLA, S116 ITO 2001 not a predicate
offence, Were other ITO 2001 offences predicate
offences at relevant time, Counsel for respondents
contention that petitioner had violated the money
laundering regime rejected, Premature allegation);
S116 ITO 2001 (No notice issued to Mrs. Isa or
petitioner, Entire case based on AC (IR) opinion,
FBR’s, petitioner’s and respondents interpretation of
s116, Counsel for respondent’s subsequent reliance
on Code of Conduct rejected, Mrs. Isa’s address to
the Court, Compliance of Arts 4 and 10A, Premature
allegation)
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11 Application of Mind by the President 121-135

 Reference to Ch Ijaz Ahmed, J concurring note on
substance of President’s ‘opinion’; President’s
reliance on advice from Law Minister and (former)
AG; Reasons for President’s obligation to apply
his mind when forming an opinion under Art
209(5) – reference to Art 48(1) and proviso; Advice
of PM, not Cabinet, to be relied on; Whose
obligation is it to set out reasons for preparing a
reference against a Judge; No independent
application of mind
12 Conclusion for Defects in the Reference 136
 Defects amount to malice in law
13 Show Cause Notice issued by SJC 137
 Super structural in nature – hence abates
14 Referral to FBR 138-144
 To safeguard integrity of petitioner and
institution and to honour the former’s plea;
Distinguished CJP case; Accountability of public
office holders; Plea of petitioner (in detail); FBR
most appropriate authority to verify the
information provided; No curtailment of any
party’s substantive and procedural rights
15 Jurisdiction of SJC 145-146
 Suo motu jurisdiction; SJC proceedings separate
from FBR proceedings
16 Conclusion 147-148
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Faisal Arab, J.- I have had the privilege to go through the judgment
proposed to be delivered by my learned brother Umar Ata Bandial, J and
except for my view on Article 48 of the Constitution, Section 116 of
Income Tax Ordinance, 2001 and on the plea of mala fide I respectfully
agree with the same. I also intend to add my own reasons in support of
the main judgment.
Facts:
2. The origin of the Reference No.1 of 2019 filed by the
President against the petitioner can be found in the letter dated
10.04.2019, which one Abdul Waheed Dogar, stating himself to be an
investigative journalist, wrote to the Chairman, Asset Recovery Unit,
Prime Minister’s Secretariat, Islamabad. In this letter, Abdul Waheed
Dogar claims that he has laid hands on documentary evidence showing
three Judges, including the petitioner, own properties abroad in the
names of their relatives. The details of the foreign properties were said to
be attached with the letter. The Law Minister was informed about this
letter, who advised the Chairman, Asset Recovery Unit, to verify the
information contained therein. In the process of verification, the Director
General, International Taxes, Federal Board of Revenue confirmed from
the tax records that no property located abroad has been declared either
by the petitioner or his wife in terms of Section 116 (1) (b) of the Income
Tax Ordinance, 2001. From further verification from the Land Registry in
London, it transpired that three properties (i) 50 Coniston Court, Kendal
Street, London W2 2AN acquired in the year 2011 (ii) 90 Adelaide Road,
London E10 5NW acquired in the year 2013 and (iii) 40 Oakdale Road,
London E11 4DL also acquired in the year 2013 stand in the joint names
of the petitioner’s wife and children (hereinafter “London Properties”).
Later, it has come on record that the first of these properties was initially
acquired in the year 2004 in the name of the petitioner’s wife only and in
the year 2011 the petitioner’s daughter was made co-owner along-with
his wife. The second property acquired in the year 2013 stands in the
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joint names of the petitioner’s wife and son and the third, also acquired
in the year 2013, stands in the joint names of the petitioner’s wife and
daughter.
3. After the process of verification of the London properties
was completed in the manner stated above, the Law Ministry placed a
summary along-with a draft of the Presidential Reference before the
Prime Minister, which summary was endorsed by him on 17.05.2019
and was then placed before the President under Article 48 (1) of the
Constitution, advising him to direct the Supreme Judicial Council under
Article 209 (5) of the Constitution to inquire into the non-disclosure of
foreign assets. The draft of the Presidential Reference was also appended
with the Prime Minister’s advice, which the President was asked to sign.
The President acted on such advice and signed the Reference, which was
then sent to the Supreme Judicial Council to conduct inquiry against the
petitioner under Article 209 (5) of the Constitution.
Scope of Article 209 of the Constitution:
4. Clause 5 of Article 209 reads ‘If, on information from any
source, the Council or the President is of the opinion that a Judge of the
Supreme Court or a High Court ……. (b) may have been guilty of
misconduct, the President shall direct the Council to, or the Council may,
on its own motion, inquire into the matter.’ The use of the words ‘from any
source’ appearing in Article 209(5) allows information to come from a
member of the general public or a government functionary or is based on
a finding of fact of a judicial forum. No specific route from which
information is to come has been laid down in the Constitution. While
leaving the door wide open for the information to come in from any
source, Article 209 (5) of the Constitution has also ensured that receipt
of any and every information per se should not trigger inquiry against a
Judge and only such information is to become actionable on which either
the Supreme Judicial Council or the President has formed the opinion
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that the matter needs to be inquired into. The informant has no right to
seek that the President or the Supreme Judicial Council must conduct
inquiry on the information that has been placed by him before any of
them. The Constitution has left such decision in its entirety in the hands
of the Supreme Judicial Council and the President. Until either of them
consider any information to be convincing enough to call for an inquiry
only then the Supreme Judicial Council could embark upon the inquiry
otherwise not.
5. Had the Constitutional safeguard of formation of opinion on
a particular information not been made a condition precedent, no judge
would be able to work with the freedom and confidence required of him
in discharge of the obligation of his or her office. On every kind of
complaint made against them the Judges would remain unendingly
entangled in putting up their defence in one inquiry after another and
correspondingly the members of the Supreme Judicial Council would
also be perpetually engaged in conducting inquiries upon whatever
information is placed before them by any informant, crippling them from
performing their normal judicial function. Apprehending this drawback,
the Constitution has given primacy to the opinion that is formed on the
information by either of the two opinion-makers described in Article 209
(5) of the Constitution. It is for this reason that when the Constitution
admits information from any source, it basically says let there be search
for the truth if in the opinion of any of the two opinion makers there is
substance in the information regardless of the source as there is no
independence of judiciary if there is no effective mechanism for its
accountability.
6. Article 209 (6) of the Constitution is also of considerable
importance. It reads ‘If, after inquiring into the matter, the Council reports
to the President that it is of the opinion- (a) that the Judge is incapable of
performing the duties of his office or has been guilty of misconduct, and (b)
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that the President may remove the Judge from office.’ The words “… after
inquiring into the matter …” are significant. It means once a matter is
referred by the President to the Supreme Judicial Council to conduct
inquiry then it becomes a constitutional obligation of the Supreme
Judicial Council to first conduct the inquiry and then submit its report
to the President. Once that is done and in its report returns its findings
of guilt or otherwise, it is then for the President to either accept the
report or reject it. He may not agree on removing a judge as Clause 6 of
Article 209 of the Constitution uses the word ‘may’, which clothes the
President with such discretion. For removal of doubt, it may be clarified
that where the Supreme Judicial Council exonerates a judge of the
charges framed against him, in that eventuality the matter ends there.
The exoneration brings the whole proceedings to an end which no more
remains open to challenge, not even by the President by seeking judicial
review before this Court. To quote an example from a matter from foreign
jurisdiction, this happened in the case of a Judge of the Supreme Court
of India where under the Indian Constitution, the Inquiry Committee
(whose role can be equated with the role of Supreme Judicial Council)
found Justice V. Ramaswami guilty of misconduct but the Indian
Parliament (whose role under our Constitutional scheme is equal to the
role which our President exercises in such matters) did not accept the
recommendation of the Inquiry Committee as the majority voted against
removal. With the result that Justice Ramaswami continued in his office
until he superannuated.
7. Then there is Article 209 (7) of the Constitution which
states ‘A Judge of the Supreme Court or of a High Court shall not be
removed from office except as provided by this Article’. This means that
the only forum of accountability of a Judge of the Superior Judiciary is
the Supreme Judicial Council and no other. This has been done keeping
in mind the independence of the judiciary so that no forum other than

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the one provided in the Constitution i.e. the Supreme Judicial Council
decides with regard to misconduct or incapacity of a judge of the
Superior Judiciary. The framers of the 1973 Constitution under Article
209 (7) clearly entrusted the power to inquire into the conduct of a Judge
of the Superior Judiciary in the exclusive hands of the Supreme Judicial
Council so that the process is expeditiously concluded one way or the
other.
Scope of Article 211 of the Constitution:
8. This Court on its judicial side cannot examine the merits of
the allegations on account of the constitutional bar contained in Article
211 of the Constitution, which though appears to be a clog on judicial
review but if such a bar was not implanted through a constitutional
provision, it would have deprived the most important organ, the Supreme
Judicial Council, of its vital powers in discharging its constitutional
responsibility of inquiring into the conduct of Judges of the Superior
Courts in an effective and efficient manner. In the face of the bar
contained in Article 211, if any interference by this Court on the merits
of the controversy gains currency, every Judge against whom the
Supreme Judicial Council is to conduct inquiry would first come to this
Court and seek examination of the credibility of the informant as well as
of the merits of the information. If this Court was to first give its findings
on the adequacy of the allegations or credibility of the informant and
then decide whether to allow or restrain the Supreme Judicial Council
from proceeding with the inquiry, it would be deviating from the scheme
devised under the Constitution for the accountability of the judges of the
Superior Judiciary. It would also set a very dangerous precedent for
actions that may be taken under Article 209 (5) of the Constitution in
future. In every case the credentials of the informant and not the worth
of the information disclosed against a judge would be examined first on
the judicial side of this Court. Invasion of this Constitutional power by

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any Court would not only amount to demonstrating mistrust in the
forum created exclusively for the accountability of judges but would also
be in disregard of the Constitutional mandate contained in Article 211.
Hence, where decision to conduct inquiry has been taken in terms of
Article 209 (5) of the Constitution, the allegations made against a sitting
Judge can only be proved or disproved before the Supreme Judicial
Council and not before a court through a judicial pronouncement. Any
judicial interference that amounts to stifling the very function which the
Constitution has assigned exclusively to the Supreme Judicial Council
would be violative of Article 211 of the Constitution.
The effect of absence of plea of benami ownership or bribery or

corruption in the Reference:
9. The petitioner has taken the plea that no allegation of
benami ownership or bribery or corruption has been alleged against him
in the Reference in order to question his integrity and honesty. It would
be appropriate to examine the allegations made in paragraphs 11, 12 and
16 of the Reference which in a summarized form are as follows:
In the tax records of the petitioner, three London properties standing

in the joint names of the petitioner’s wife and two children acquired
for 751,000 British Pounds in the years 2011 and 2013 have not
been declared by him to the tax authorities as required under
Section 116 (1) of the Income Tax Ordinance, 2001 and as their
source of acquisition is irreconcilable with the petitioner’s declared
sources of income, nondisclosure is tainted with concealment,
raising the questions as to how and from where the funds were
made available for their purchase without violating the money
laundering regime and Foreign Exchange Regulations Act, 1947.
10. In any legal proceedings what is sufficient is to plead facts
and facts alone, not their legal effects. The terms such as benami
ownership or corruption or bribery are all legal effects that arise from a
set of alleged facts. Once that is done then it is for the adjudicating
forum to work out the legal effects emanating from any given set of facts
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alleged in any pleadings. The aforesaid rule of pleadings was best
explained in the case of Ala-ud-Din Vs. Mst. Farkhanda Akhtar PLD 1953
Lahore 131). In this case Kaikaus J, as he then was, held “… party is to
state only the facts and it is for the Court to apply the law and work out
the results, though as a matter of convenience and on account of lack of
regard for the rules of pleading, legal effects are generally made part of the
pleadings”. In the said judgment, Kakaus, J also explained the rules of
pleading through an explicit example which for brevity sake is not
reproduced. Then in the case of Budho Vs. Ghulam Shah (PLD 1963 SC
553), a five-member bench of this Court reiterated this principle and held
that pleadings are to be confined to a statement of material facts, it shall
be presumed that reliance would be placed on such facts and what legal
effects emerge from such facts need not be stated in the pleadings in
order to seek the relief. Failure to state the legal effects, therefore, cannot
even be regarded as an omission in law much less fatal to any legal
proceedings. In fact stating legal effects in the pleadings was regarded as
lack of regard for the rules of pleadings. Hence, what legal effect emerges
from the narration of a set of facts alleged in the Reference was not
required to be made part of the Reference.
11. For a moment even if the rules of pleadings are kept aside,
one of the allegations made in the Reference is of probable concealment
of foreign assets. This allegation was made by drawing inference from the
fact that the foreign assets were neither declared by the petitioner nor his
wife as required under Section 116 (1) (b) of the Income tax Ordinance,
2001. To draw inference of probable concealment through deductive
approach in a chain of reasoning cannot be termed as illogical. Hence,
based on the contents of the allegations made in paragraphs 11, 12 and
16 of the Reference, particularly the plea of probable concealment,
opinion can be legitimately formed that matter needs to be inquired into.

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Scope of Section 116(1) (b) of the Income Tax Ordinance, 2001:
12. With regard to the plea of the petitioner that as the London
Properties are not in his name he was not required to declare it in his
Wealth Statements in terms of Section 116(1)(b) of the Income Tax
Ordinance, 2001, it may be stated that under Section 116(1) (b) of the
Income Tax Ordinance, 2001, all resident taxpayers are required to
declare any wealth that stands in their names or in the names of their
spouses or minor children or persons who are dependent on them. The
logic behind seeking such an extended declaration is that the resident
taxpayers often purchase properties from their own sources of income
not only in their own names but also in the names of their spouses,
children as well as those persons who are dependent on them. It is this
interconnection between the wealth created from the income of one
which stands in the name of another that has made it obligatory upon
every resident taxpayer to also declare assets of such persons in whose
names the taxpayer is most likely to purchase from his own sources.
Keeping this in mind, the provisions of filing wealth statement and
wealth reconciliation statement were incorporated in Section 116 (1) &
(2) of the Income Tax Ordinance, 2001. When a taxpayer declares his
assets under Section 116, such declaration had to reconcile with his
declared income.
13. When any asset that has not been declared in terms of
Section 116 gets disclosed at any stage, it is likely to give rise to the
question whether it is a case of concealment of income from which such
asset was acquired. In such eventuality the taxpayer can be called upon
by tax authorities to explain the source of its acquisition. If he offers no
explanation or the explanation that was offered is found unsatisfactory
then the value of the undeclared asset, to the extent it was not
satisfactorily explained, through fiction of law is treated as a person’s
deemed income generated from ‘other sources’ and added to his already
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declared income, if there was any. This is done in terms of Section 111 of
the Income Tax Ordinance, 2001. The income tax liability so determined
is then recovered along-with applicable penalty under Section 182 of the
Income Tax Ordinance, 2001. Once that is done on the basis of deeming
provision, the Income Tax authorities cannot travel beyond their
mandate and compel such person to divulge the nature of the activity
that had become the source of acquiring the undeclared asset. Hence,
insofar as the legitimacy of the activity from which the undeclared asset
was created would still remain a mystery and the matter would come to
an end but only for the purposes of income tax law. Hence, the legitimacy
of the activity from which the undeclared asset was created would still
remain unascertainable inspite of the fact that Sections 111 and 182 of
the Income Tax Ordinance, 2001 were fully applied by the Income Tax
authorities by taking the matter to its logical conclusion.
14. Apart from detecting tax evasions on undeclared incomes
as discussed above, the declarations made under Section 116 of the
Income Tax Ordinance, 2001 can also be used by a forum that is
entrusted with the function to initiate disciplinary proceedings against a
public office holder in order to ascertain whether his undeclared assets
were acquired beyond his known sources of income. In that sense the
declarations made under Section 116 (1) (b) become a ‘relevant fact’ in
order to prove a ‘fact in issue’ which is possessing assets beyond means.
So, the utility of the declaration made under Section 116 is not restricted
to detect probable tax evasion only but it can be utilized by a forum,
other than income tax authorities, to examine the legitimacy of the
source from which an asset was acquired when it comes to examining
the conduct of a public office holder.
15. In the present case, the jurisdiction of the Supreme Judicial
Council was not invoked to recover income tax that may not have been
paid on income from which the London properties were acquired as such
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a function falls within the exclusive domain of Income Tax Ordinance,
2001 but it was invoked on account of non-disclosure of foreign assets
located beyond the tax jurisdiction of this Country so as to determine as
to whether such assets were acquired through legitimate means of
income. It is the determination of legitimacy of source of acquisition of
London properties which is being sought in the Presidential Reference,
hence, the allegation of probable concealment was made. Therefore,
taking recourse to Section 116 of the Income Tax Ordinance, 2001 could
only be termed as a ‘relevant fact’ which is intended for proving the ‘fact-
in-issue’ which is the probable concealment of the source from which the
foreign assets were acquired.
16. Where a person holds a high public office and any asset
standing in his name or in the name of any member of his or her
household in the country or abroad and had not been declared to the tax
authorities in terms of Section 116 (1) (b) of the Income Tax Ordinance
and if someone, accidentally or deliberately, finds out about it and
shares such information with the authority that is competent to seek
source of acquisition of such undisclosed property, then the holder of
public office cannot avoid making necessary disclosure. The source of
undeclared asset must reconcile with the legitimate source of income of
the holder of high public office or of the member of his or her household,
in whose name the asset stands. Unless it is so demonstrated, non-
disclosure is likely to cast doubts on his or her integrity and honesty and
can be taken as an act of concealment of an illegal source from which the
undeclared asset was acquired. Thus, in the context of accountability of
a public office holder, the declaration under Section 116 (1) (b) of the
Income Tax Ordinance, 2001 by itself is not a ‘fact in issue’ but only a
‘relevant fact’ which can be used to seek explanation with regard to
source of acquisition of undeclared assets that stand either in the name
of the public office holder or his spouse or children or any other person
187
dependent upon him. No claim of privacy or privilege can justify
withholding of financial disclosure that is relevant in such accountability
process. Thus, the declaration of assets and liabilities made under
Section 116 (1) (b) can be used as a ‘relevant fact’ before both the forums
i.e. income tax authorities and the forum that is empowered to take
disciplinary action against a holder of public office, as the object and
purpose of both the forums is distinct.
17. The declaration required under Section 116 of the Income
Tax Ordinance, 2001 is also regardless of ones’ gender as the phrase
used in the said section is ‘person’s spouse’ and not wife. Thus, if a
resident taxpayer is a husband then he is required to disclose the assets
of his wife and if resident taxpayer is a wife then she is required to
declare her husband’s assets. Such a declaration has nothing to do with
the spouse’s financial dependency or otherwise on the resident taxpayer.
Income tax law is not concerned with whether the spouse of a resident
taxpayer is dependent or is a person of means. All that it intends is that
no tax evasion takes place by hiding one’s undeclared source of income
in the names of taxpayer’s loved ones. Husband and wife are both
presumptive heirs of each other. Any property in the name of any of them
is also inheritable by their children. Hence, wealth in the name of
taxpayer’s spouse, irrespective of his or her own means of income, has to
be declared on account of mere existence of such relationship with the
taxpayer. If dependency of spouse of a public office holder is made a
criterion, it may give rise to scenarios where a resident taxpayer may
purchase property in the name of his or her spouse who is financially
well off and is living as a member of the taxpayer’s household and a
property in his or her name remains undeclared and when such a fact
gets disclosed, the public office holder in order to avoid disciplinary
proceedings takes the plea that his or her spouse being a person of
means and not dependent on him or her, therefore, information about

188
the source of acquisition of undeclared asset was not required to be
divulged by him or her under Section 116 of the Income Tax Ordinance,
2001. This, if accepted, would then mean that if first asset of substantial
value raised from the income of taxpayer bought in the name of
taxpayer’s spouse is declared, then there is no need to declare all assets
acquired subsequently by the taxpayer in his or her spouse’s name as by
then the spouse with the ownership of valuable asset that was acquired
first in point of time has become a person of means. As stated earlier, the
whole intent of the income tax law is to prevent tax evasion which would
be frustrated if such an unintended meaning is attributed to the term
‘spouse’ appearing in Section 116. It is for this reason that when the law
states ‘spouse’ it does not qualify it by stating that only such assets are
to be declared which stand in the name of a dependent spouse. The word
‘spouse’ cannot be read to restrict or qualify its meaning which on its
plain reading is not intended. Therefore, nothing is to be read into
Section 116 so as to mean that the term ‘spouse’ is confined to only such
spouses who are dependent on their taxpaying spouses.
18. In the book ‘Statutory Interpretation by F. Bennion’ (5th
Edition page 751), it is stated that punctuations are to denote the stops
that ought to be made in oral reading, and point out the sense. When
the relevant portion of Section 116 (1) (b) of the Income Tax
Ordinance, 2001 is examined it reads ‘the total assets and liabilities of
the person’s spouse, minor children, and other dependents…’ we find that
in the said provision there is a coma before the conjunction ‘and’. When
in any sentence two independent clauses are joined together, each
intended to stand on its own as a complete message then a coma is
added before the conjunction ‘and’ in order to denote that the words that
appear after the coma and the conjunction are not to be read so as to
modify what has preceded before in the same sentence. Joining of two
clauses in one sentence does not mean that both are to be read as
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ejusdem generis. This rule is to be applied with caution so as not to limit
the meaning of the general word ‘spouse’ to a narrow category of
‘dependent spouse’. What Section 116(1) (b) intend to mean is that the
wealth in the names of the taxpayer’s spouse or minor children has to be
declared on account of mere existence of such relationship with the
taxpayer. The dependency of such relations on the taxpayers is not a
condition precedent. This being the legal position, a resident taxpayer
even in an action taken under Income Tax Ordinance, 2001 cannot take
the stand that unless his or her spouse is shown to be dependent on him
or her, there is no legal obligation to declare the assets that stand in
their names under Section 116 (1) (b) of the Income Tax Ordinance,
2001.
19. It may also be added here that as far as a person’s wife is
concerned, the legal position is that when a woman marries and
moves to her husband’s house then the husband has to bear the
entire cost of her living in all circumstances even if she is a lady of
means. Husband cannot force his wife to share household expenses
even if wife is capable of maintaining herself from her own financial
resources. The responsibility of a husband to financially support his
wife is to such an extent that when he fails to do so she has a right to
seek divorce. This obligation of a husband towards his wife as a
member of his household exists under civil law, Muslim Personal Law
as well as under Islamic law which creates a right of the wife over her
husband to provide for her living which he can reasonably bear.
Hence, based on her legal right, a husband is legally obligated to
provide to her wife all necessities of life irrespective of her own means as
long as the marriage subsists and even for some time thereafter. In
Islamic jurisprudence, Al-Kamal-Ibn-al Humam a learned Islamic
scholar of Fiqh, while dilating upon the obligation of husband
towards his wife states that wife can even rent her own house to her
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husband so that her husband will allocate that house for their
dwelling (FathulQadir, 111, 321 – 339). When law recognizes that it is
a right of a wife that her husband must maintain her as long as she
remains part of his household, there is no concept where a husband can
claim that he has no financial responsibilities towards his wife for the
reason that she is a lady of means. When it is within husband’s power
and reach to comply with the mandate of the law which requires him to
disclose assets in the name of his wife who is living with him as member
of his household then he must honour the mandate of the law.
Plea of mala fide:
20. As regards plea of mala fide, only on one occasion in the
past this Court interfered with the proceedings of the Supreme Judicial
Council. This happened in the case of Iftikhar Muhammad Chaudhry Vs.
President of Pakistan (PLD 2010 Supreme Court 61). Even in that case
the merits of allegations made in the Presidential Reference were not
made basis for nullifying the proceedings but this Court noticed quite
pronounced acts of mala fide on the part of the then President who under
the then existing provisions of Article 209 (5) of the Constitution was the
sole opinion-maker to initiate the inquiry. What happened on 09.03.2007
with the then Chief Justice of Pakistan could be said to be one of the
darkest days in the history of Pakistan’s judiciary. A day when
independence of judiciary and the judicial institutions were trampled at
the hands of the then President. On 09.03.2007, the then President
called the Chief Justice for a meeting at his office in the morning hours,
in which the Chief Justice refused to give any assurance that this Court
will not be an impediment in granting judicial clearance of his
candidature in the upcoming presidential elections. Upon his refusal, the
Chief Justice was asked to either resign or face the Reference. The Chief
Justice refused to resign, upon which he was not allowed to leave for
more than five hours. During this time the Chief Justice was stripped of
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all his powers and a Reference against him was filed under Article 209 (5)
of the Constitution. The President appointed a senior judge as the Acting
Chief Justice, who took oath the same day and held the meeting of the
Supreme Judicial Council at 06:30 p.m. Two Chief Justices of the High
Courts who were members of the Supreme Judicial Council were
specially flown in for the meeting even before the Acting Chief Justice
had taken oath of his office. During the hearing of Iftikhar Muhammad
Chaudhry’s case, this Court summoned the record of the proceedings of
the Supreme Judicial Council and after examining the same, noticed that
no order of convening the Supreme Judicial Council meeting on
09.03.2007 had ever been passed on that day. The Council nevertheless
met in the evening and issued a notice to the deposed Chief Justice for
his appearance before the Supreme Judicial Council on 13.03.2007 and
also restrained him from performing his judicial functions. In the
meanwhile, the Chief Justice was taken to his residence and put under
house arrest.
21. From the contents of the judgment rendered in the case of
Iftikhar Muhammad Chaudhry, it becomes evident that the Presidential
Reference was not quashed by this Court on the basis of the allegations
contained therein but because his removal from his office was on
account of his refusal to give assurance to the then President that his
candidature in uniform in the said elections would not be judicially
invalidated. Hence, the unholy haste in first seeking resignation under
coercion followed by mistreatment and forcible removal from office and
then sudden convening of the meeting of the Supreme Judicial Council
on one and the same day clearly demonstrated utter mala fide on the
part of the then President who himself was the sole opinion maker under
Article 209(5) of the Constitution to refer the matter to Supreme Judicial
Council. That was the background that led to the quashment of the
Reference against the then Chief Justice by this Court. The petitioner
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has not alleged mala fide against the President but has raised such a
plea only against the informant and the persons who processed the
information. The present case is thus not even remotely close to what
treatment was meted out to the then Chief Justice of Pakistan.
Maintainability of the Presidential Reference on the touchstone of

Article 48 of the Constitution:
22. The petitioner has also sought quashment of the
Presidential Reference on the ground that it is not maintainable in law.
In this regard, the petitioner formulated two legal questions in his
petition. In the first question, it is stated that by acting on the advice of
the Prime Minister, the President has contravened the provision of Article
209 (5) of the Constitution as he did not form his own independent
opinion in respect of purported misconduct. In the second question, it is
stated that without obtaining the approval of the Federal Cabinet, the
Prime Minister could not have advised the President to file the Reference
and reliance was placed on the case of Mustafa Impex, Karachi Vs. The
Government of Pakistan (PLD 2016 SC 808) in this regard. Both the legal
questions though contradict each other, one can say that these pleas
may have been taken in the alternative without stating so. In order to
examine the question whether the Reference suffered from any legal
defect, the true import of Article 48 (1) & (2) of the Constitution needs to
be examined in the light of Article 209 (5) of the Constitution.
23. Article 48(1) of the Constitution makes it obligatory upon
the President to act in accordance with the advice of the Cabinet or the
Prime Minister which means it comes into play when any matter relates
to executive authority of the Federation as Article 99 (1) of the
Constitution provides that the executive authority of the Federation shall
be exercised by the Cabinet and the Prime Minister in the name of the
President. This also indicates that the affairs of the government in the
parliamentary form of government are exclusively in the hands of the

193
Prime Minister and the Cabinet as it is them who are collectively
responsible to the Parliament in terms of Article 90(6) of the
Constitution. Then there is a non-obstante clause contained in Article
48(2) of the Constitution, which creates an exception to the rule laid
down in Article 48(1) as it allows the President to act in his own
discretion in certain matters without taking advice from the Prime
Minister or the Cabinet. There are few provisions in the Constitution in
which the President can exercise his powers in his own discretion. These
are proviso to Article 48 (1), Article 48(2), Article 56(2), Article 58(2),
Article 75(1) (b), Article 91(7), Article 209(5), Article 232(1) and proviso to
Article 232 (2).
24. From the contents of Article 209 (5) of the Constitution, it
becomes clear that in forming his opinion the President is not dependent
on the advice of the Prime Minister or the Cabinet. He can form opinion
on any information that may have come to him from any other source.
This is so as the Judiciary is separate and distinct from the Executive
branch of the Government. It has to remain completely separate and
uninfluenced by any decision of the Executive in the running of its
affairs. No doubt the Executive to a certain extent have a role in the
appointment of judges of the Superior Judiciary and it also controls their
perks and privileges, however, once a judge of the Superior Judiciary is
appointed and his tenure of service stands secured under the
Constitution, the Executive being the biggest litigant in the country was
not to be conferred with the power to decide against which judge an
inquiry into his conduct or capacity should be conducted by the
Supreme Judicial Council. When the Executives of the Provinces have
not been entrusted with the power to initiate disciplinary proceedings
with regard incapacity or misconduct of the judges of the district
judiciary then to vest such a power in the Federal Government, when it
comes to giving directions to the Supreme Judicial Council to initiate an

194
inquiry into the conduct of a judge of the Superior Judiciary was out of
question. Nonetheless, such a power had to exist in some office in order
to trigger inquiry against the conduct of the judges of the Superior
Judiciary, therefore, the Constitution vested such power in the President
who is the symbol of unity of the State and not part of the Executive
branch of the government. So while examining the power of the President
to call for inquiry under Clause 5 of Article 209 of the Constitution, it
clearly indicates that the President has to act in his own discretion to
which he is entitled to by virtue of Article 48(2) of the Constitution.
25. For the President to act under Article 48(1) the source is the
advice of the Prime Minister and the Cabinet and for the President to act
under Article 209(5) the source could be any, there is no limitation. All
that the executive can do is to place information which it considers
actionable before the President and then it is for him to either seek any
further information or consider the information already provided
sufficient enough to refer the matter to the Supreme Judicial Council for
inquiry without being burdened with the constraints of Article 48 (1) of
the Constitution. The Executive on its part cannot compel the President
by advising him on the strength of Article 48 (1) of the Constitution to
send the Reference proposed by it to the Supreme Judicial Council for
inquiry against a judge of the superior judiciary. In the present case,
information with regard to London Properties after verification from the
income tax records of the Federal Board of Revenue and the office of the
Land Registry of London was submitted to the Law Minister vide ARU’s
letter dated 10.05.2019 and on such information the course that was
adopted was of Article 48 (1) of the Constitution which is evident from
the summary prepared for the Prime Minister. Paragraphs 17 & 18 of the
summary for convenience sake are reproduced as follows:-

195
“17. Therefore, it is proposed that His Excellency the

Prime Minister of Pakistan may kindly be pleased to advice
His Excellency the President of Pakistan under Article 48 of
the Constitution to form an opinion that Justice Qazi Faez Isa
may be guilty of misconduct and hence direct the Supreme
Judicial Council under Article 209(5) of the Constitution to
enquire into the matter, according to the law and the
Constitution, and submit a Report after such enquiry to his
Excellency the President of Pakistan under Article 209(6) of
the Constitution.
18. This Summary is accompanied by a draft

Reference (see Attachment A) proposed to be filed before the
learned Supreme Judicial Council; which, if found
appropriate, His Excellency the Prime Minister of Pakistan
may advice His Excellency the President of Pakistan to sign
and institute/file the Reference.”
26. From the contents of paragraphs 17 & 18 of the summary,
it is clear that it was proposed to the Prime Minister to advice the
President to direct the Supreme Judicial Council to probe into the
allegations in terms of Article 209 (5) of the Constitution, and after such
inquiry submit a Report to the President under Article 209 (6) of the
Constitution. The summary was then endorsed by the Prime Minister on
17.05.2019 and was then placed before the President. The President
acted on such advice and signed the Reference on 20.05.2019, which
was then sent to the Supreme Judicial Council to conduct inquiry
against the petitioner under Article 209 (5) of the Constitution. Thus,
nothing was left for the President to decide on his own in terms of Article
209 (5) of the Constitution. From what transpired from the whole
process, it becomes abundantly clear that the President acted on the
summary in terms of Article 48(1) of the Constitution and signed the
Reference considering the advice to be binding on him. Thus, the
decision of filing the Reference was not based on President’s own
independent opinion. The Reference not being based on President’s own

196
independent opinion, the same was submitted to the Supreme Judicial
Council beyond the contemplation of the provisions of Article 209 (5) of
the Constitution and thus was not maintainable in law.
Judicial Accountability:
27. The framers of our Constitution believed that the process of
accountability of Judges of the Superior Judiciary be better left in the
hands of an independent body of Judges instead of the Parliament to
prevent any political pressure on them. The institution of the Supreme
Judicial Council was thus carved out under Article 209(5) of the
Constitution for the superior judiciary from the judiciary. The
mechanism provided for judicial accountability in essence is indirectly
holding oneself accountable in the eyes of the public. It is compatible
with the principle of judicial independence, both individual independence
of the judges and independence as a whole of the institution and ensures
public trust in the judiciary. By virtue of Article 209 (7) read with Article
211 of the Constitution the role of scrutinizing the merits of the
allegations made against a Judge of the Superior Judiciary and render
findings thereon is to be exclusively performed by the Supreme Judicial
Council only. No Court can assume such a role. The Supreme Judicial
Council is not to be treated as a forum that is dead in its duty to examine
the merits of the allegations made against any judge of the superior
judiciary. Only plea of mala fide was allowed to be taken by this Court in
the case of Iftikhar Muhammad Chaudhry Vs. President of Pakistan(PLD
2010 Supreme Court 61) and that too mala fide was attributed to the
former President who was then solely entitled to form the opinion as to
whether Supreme Judicial Council be directed to conduct inquiry against
a judge of a Superior Judiciary. No such plea was taken against the
President.
197
28. Every judge of the Judiciary, without any distinction,
deserves the honor, dignity and respect which go with his office. When
the integrity of a judge of the Superior Judiciary is called in question
under Article 209 (5) of the Constitution, then not only his credibility but
of the entire judicial institution is put at stake. The very commencement
of the inquiry proceedings against a judge causes psychological pain and
anguish that continues until his name gets finally cleared. The agony
may even continue for some time thereafter. Nonetheless, the sanctity of
the mechanism provided for overseeing the conduct of judges of the
Superior judiciary has to be respected as nothing makes the judges of
the Superior Judiciary immune from the process of accountability.
Allegations of misconduct had been made against notable justices of
superior judiciary around the world. Some got impeached and the others
were cleared. Every Judge of the Superior Judiciary has to demonstrate
due deference to the Supreme Judicial Council that has been entrusted
with the Constitutional responsibility to make inquiries into their
conduct. This is to be done to assure that judges are performing their
role as Guardians of the Constitution.
29. Where an asset located in the country or abroad, standing
in the name of a judge of the superior judiciary or any member of his
household which was acquired while he was in office and has not been
declared to the income tax authorities and such fact becomes public then
the satisfying sense of finality to the whole episode would always be
missing unless the matter is brought to its closure. One can imagine the
immeasurable damage both to the image of the judge for the remainder
of his tenure in office and the faith of the people in the accountability
process when the allegations made in the Reference having extensively
gone into public domain are not taken to their logical conclusion. As the
saying goes ‘the robe magnifies the conduct’. Leaving the matter without
inquiry would in fact give rise to a great deal of skepticism about his
198
integrity in the public eye. Judges write many judgments, some of which
go against the sitting government. This does not mean that Article 209(5)
of the Constitution cannot be invoked against a Judge who has delivered
such judgments. When it comes to accountability of judges, no
distinction can be made amongst them. The jurisdiction of the Supreme
Judicial Council also does not depend upon what motivated the
informant to place the information on the desk of one of the two opinion
makers who found it to be credible enough to call for an inquiry, nor the
filing of a Reference becoming public would be enough to vitiate the
proceedings before the Supreme Judicial Council. The function of the
Supreme Judicial Council is to search for the credibility of the
information rather than the credibility or motivation of the informant,
therefore, primacy has to be given to the matter that goes to the heart of
the controversy.
Conclusion:
30. The petitioner commands great respect in the legal
fraternity. However, when questions have been raised on the petitioner’s
financial credibility then it becomes all the more necessary that he and
his wife, who lives with him as a member of his household, should take
this as an opportunity to scrub away the taint. Proving the allegation
wrong by making a full disclosure with regard to source of acquisition of
London Properties located beyond the tax jurisdiction of this country
would be the only appropriate response to meet the allegations and clear
the doubts that may have arisen in the minds of the public. For any
reason, if Article 209 (5) of the Constitution is made ineffective through
judicial interference, it will die in the hearts and minds of the people for
whom it was framed. After holding that the Presidential Reference was
not maintainable in law, wrapping up these proceedings without
adopting the course provided in the short order dated 19.06.2020 would
not have resulted in genuine exoneration for the petitioner. Keeping this
199
in mind when this Court in its short order directed the Commissioner
Income Tax, FBR to probe into the reasons of non-declaration of foreign
assets and place its report before the Supreme Judicial Council, it in
effect left it to the Supreme Judicial Council to consider whether such
report contains sufficient information so as to embark upon inquiry as
envisaged under Article 209(5) of the Constitution.
JUDGE
200
YAHYA AFRIDI, J. – I have had the pleasure of going
through the majority judgment authored by my worthy brother Umar Ata
Bandial, J. and agree with him to the extent of declaring the Presidential
Reference filed against Mr Justice Qazi Feaz Isa to be without lawful
authority. However, on the grounds to declare the same and on certain
crucial issues dilated upon by my respected brother Judge, I very
respectfully differ. Hence, my separate note.
2. As for the facts leading up to the present petitions, and the
valuable submissions of the learned counsel for the parties, the same
have very aptly been recorded by my worthy brother Umar Ata Bandial J.
Thus, I would not repeat the narration thereof and adopt the same to be
read as a part of the present opinion.
CONSTITUTION PETITION NO. 17 OF 2019
3. In Constitution Petition No. 17 of 2019, Mr Justice Qazi
Faez Isa, the Petitioner, has invoked the constitutional jurisdiction of the
Supreme Court under Article 184(3) of the Constitution of the Islamic
Republic of Pakistan, 1973 (“Constitution”), seeking in essence, the
quashing of the reference filed against him by the President of Islamic
Republic of Pakistan (“the President”) under Article 209 of the
Constitution (“the Reference”) before the Supreme Judicial Council
(“Council”), and all such steps and proceedings taken in pursuance
thereof.
Scope of Original Jurisdiction under Article 184(3)
4. Before considering the merits of the challenge made to the
Reference, I would first address the question regarding the
maintainability of the present petition, and whether in the peculiar

201
circumstances of the present case, the Supreme Court of Pakistan
(“Supreme Court”) ought to positively exercise its original constitutional
jurisdiction vested under Article 184(3) of the Constitution. The said
provision reads:
Article 184 of the Constitution“(3) Without prejudice

to the provisions of Article 199, the Supreme Court
shall, if it considers that a question of public
importance with reference to the enforcement of any of
the Fundamental Rights conferred by Chapter I of Part
II is involved have the power to make an order of the
nature mentioned in the said Article.”
5. The above provision determines the very contours of the
original jurisdiction of the Supreme Court by premising the same on the
fulfilment of the two condition precedents1: firstly, that the Supreme
Court considers the matter being of public importance; and secondly,
that the said matter involves any of the enforcement of the fundamental
rights provided under Chapter I of Part II of the Constitution
(“fundamental rights”).
6. What is crucial to note is that Article 184(3) of the
Constitution vests a distinct and discretionary2 jurisdiction with the
Supreme Court, wherein it has vast authority to take action suo motu or
on receiving petitions. This jurisdiction of the Supreme Court should not
be viewed merely as a forum of redress of aggrieved individuals, but more
as a repository of authority to address issues that fall within the ambit of
Article 184(3) of the Constitution. Importantly, an order passed by the
Supreme Court under this jurisdiction is final and not appealable. The
only medium of challenge available to a person aggrieved of such an
order is the limited jurisdiction of the Supreme Court under review.
1
Justice Raja Jilal-Ud-Din and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice,
Human Rights, Government of Pakistan, Islamabad and others (PLD 2016 Supreme Court 269); Al-Jehad Trust
v. President of Pakistan PLD 2000 SC 84; Suo Motu Action Regarding Eligibility of Chairman and Members of
Sindh Public Service Commission etc.: In the matter of 2017 P L C (C.S.) 984.
2 Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan (PLD 2013 SC 413); Justice

Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC
483)
202
7. Thus, to maintain judicial discipline and to uphold the rule
of law, there is an inherent and dire need for judicial introspection; to
structure the unfettered discretion of the worthy Chief Justice of the
Supreme Court to constitute benches of the Supreme Court to hear and
decide cases under Article 184(3), and in particular, suo motu actions,
lest the exercise of such jurisdiction may be seen to have been abused.
However, passing any definite findings on this crucial matter in the
present petition would not only be swaying from the issue in hand but
also, on many counts, will be premature, as the matter is already sub-
judice before the Supreme Court.3
Matters of Public Importance
8. The scope and extent of the term “matters of public
importance”, as provided under Article 184(3) of the Constitution, has
been an issue of perennial deliberation of this Court. The judicial
consensus reached is for the same to encompass any issue affecting the
legal rights or liabilities of the public or the community at large, and it is
not restricted to an individual or a group of individuals, how so large the
group might be.4 It is also settled law that the locus standi of the
Petitioner would not be a prime mover for determining this condition
precedent of invoking Article 184(3) of the Constitution, except in
exceptional circumstances.5
Independence of Judiciary
9. On careful consideration of the issues agitated by the
Petitioner in the present petition, it is noted that the key issue, apart
from his grievance, in essence, is the independence of the judiciary. To
3
C.M.A. No. 7798 of 2018
4
Anwar Aziz v. Federation of Pakistan (PLD 2001 Supreme Court 49), Abdul Wahab v. HBL (2013 SCMR 1383)
and Asad Ali v. Federation of Pakistan (PLD 1998 Supreme Court 161); Miss Benazir Bhutto v. Federation of
Pakistan (PLD 1988 Supreme Court 416); Pakistan Muslim League (N) through Khawaja Muhammad Asif,
M.N.A. and others v. FEDERATION OF PAKISTAN through Secretary Ministry of Interior and others (PLD 2007
Supreme Court 642)
5 Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan (PLD 2013 Supreme Court 413)
203
understand the jurisprudential purport and importance of this concept,
one must first appreciate the very essentials of a safe, socially
progressive, and economically prosperous society. A view I am inclined to
endorse and posit is that, for such a society, a delicate balance must be
maintained between the three essential foundational institutions: the
State, the rule of law, and an accountable government6. Surely, the
institution of the rule of law has evolved, however, its general gist has
always remained the same and has been aptly described7 in terms that:
“In the West, in India, and in the Muslim world, there was
a body of preexisting law, sanctified by religion and
safeguarded by a hierarchy of priests and clerics, that was
prior to and independent of the state. This law was seen
as being older, higher, and more legitimate than the
current ruler and therefore binding on him. That is the
meaning of the rule of law: even the king or emperor is
bound by the law and not free simply to do as he pleases.”
10. In order to establish the rule of law in a society where
constitutionalism prevails, the mode and manner of its constitutional
instantiation have varied amongst the civilized nations. Our
constitutional history bears witness to a meaningful effort of the
legislative branch to bolster the rule of law. To this end, one of the
marked features has been to establish an independent judiciary.
11. The independence of the judiciary, in effect, is the
constitutional insulation of the judges, through the structural and
procedural mechanisms, from undue influences of other organs of the
State, in particular, the executive. To ensure such independence, the
Constitution provides for separation of the three organs of the State,
thereby aiming to maintain the balanced trichotomy of power in the
country. In the zeal to insulate the judiciary, one must not forget to
attend to its accountability. All this is to ensure that no organ of the
6 Francis Fukuyama, The Origins of Political Order: From Prehuman Times to the French
Revolution (1st edn, 2011) pp.15-16
7 Francis Fukuyama, The Origins of Political Order: From Prehuman Times to the French
Revolution (1st edn, 2011) p 121
204
State, be it the judiciary, assumes unbounded authority. Both
independence and accountability of the judiciary must be deliberately
present, complementing each other in strengthening the intrinsic fibre of
the judiciary, in achieving the ultimate goal of establishing the rule of law
in the society. To propagate and seek independence of judiciary without
its accountability would amount to imposing judicial autocracy.
12. In view of the above delibrations, independence of the
judiciary with all its legal, social and political implications is surely a
"matter of public importance".8 Hence, the challenge made by the
petitioner meets the first condition precedent for invoking the jurisdiction
of the Supreme Court under Article 184(3) of the Constitution.
Fundamental Rights
13. Now, moving on to the other constitutional requirement for
the positive exercise of the original jurisdiction of the Supreme Court,
which is the enforcement of the fundamental rights. The petitioner claims
to seek enforcement of his fundamental rights to a fair trial9, free
speech10 and information11, and that, too, for the larger interest of
safeguarding the independence of the judiciary. On the face of it, to deny
a person the enforcement of the said rights would surely appear to be
unjust. However, in the peculiar circumstances of the present case, when
the Petitioner is not just a citizen, but a Judge of the Supreme Court, I
feel compelled to examine the question: whether a sitting Judge of a
constitutional court can file a constitutional petition, which not only
relates to the terms and conditions of his service but also affects the
terms of the code of conduct that he has sworn to uphold.
8
Asad Ali v. Federation of Pakistan (PLD 1998 Supreme Court 161); Al-Jehad Trust v. Lahore High Court (2011
SCMR 1688); Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through
Secretary and others (PLD 2010 SC 61).
9 Article 10-A of the Constitution

10 Article 19 of the Constitution
11 Article 19-A of the Constitution
205
Majesty of an Oath
14. The Petitioner is a Judge of the Supreme Court and has
assumed the office by taking an oath under the Constitution12. The oath
declares; inter alia, that “I will abide by the code of conduct issued
by the Supreme Judicial Council” (“code of conduct”)13.
15. The form and meaning of oaths vary across jurisdictions,
yet it has over time, evolved into a recognized "natural and universal
custom".14 At its core is always the deterring force to ensure the truth of
utterance or fulfilment and performance of the promise so made by the
declarant. In our constitutional framework, neither the overriding sway
of the fundamental rights can be diminished, nor can the importance of
an oath be rendered insignificant. Each one has a constitutional niche.
On the one hand, we have the fundamental rights that have been
conferred with constitutional protection to be jealously guarded against
any invasion of law or acts of the executive.15 On the other hand, on
taking an oath, a Judge accepts to assume a constitutional position with
all its trappings; be it the privileges and facilities attached therewith or
the duties and obligations. Accordingly, where the declaration of his
oath commands him to avoid an act, the sitting Judge is constitutionally
obligated under the oath to abstain therefrom. This act of self-restraint
by the sitting Judge would not infringe or compromise his fundamental
rights but only moderate the exercise of enforcing the same. And thus,
once a person takes an oath under the Constitution, he by his conduct
subjects all rights and privileges available to him under the Constitution
and the law, which may be contrary to or not in consonance with the
behaviour expected of a sitting Judge, as prescribed under the code of
conduct. Consequently, the fundamental rights of a sitting Judge shall
12 Articles 178 and 194 read with Third Schedule of the Constitution.
13 Third Schedule of the Constitution read with Article 209(8) of the Constitution
14 Helen Silvino, ‘The Oath’ [1959] (68)7 Yale Law Review 1329
15 Article 8, 199, 184(3) of the Constitution
206
remain eclipsed, so far as their enforcement is not in consonance with
the terms of his oath.
16. The limitation on a person to invoke the original jurisdiction
of the constitutional courts for the enforcement of his fundamental rights
in our country is not alien to the Constitution. Some of the striking
instances in this respect are: the members of “forces” cannot claim any
fundamental right in the matters relating to their service16; those
employed in "service of Pakistan" are debarred from invoking extra-
ordinary Constitutional jurisdiction of superior courts concerning the
terms and conditions of service17; and in some cases relating to terms
and conditions of service of the civil servants, this Court has observed
that even if the order of the competent authority is without jurisdiction,
writ jurisdiction would still not be available to him.18
Code of Conduct
17. As fairly commented by an eminent jurist, the essential
expectation from a Judge is “judicial virtue-phronesis: sobriety, wisdom,
courage, modesty, and the capacity to resist the siren of notoriety for
righting all wrongs regardless of one’s formal jurisdiction to do so”.19 As
for our jurisdiction, the judicial virtues of a constitutional Judge have
been articulated in the code of conduct. A careful review thereof reveals
that on the one hand, a Judge is bestowed with the sacred constitutional
trust, and on the other hand, he is obligated "to present before the public
an image of Justice of the Nation,…..Equally, it imposes patterns of
behaviour, which are a hallmark of distinction of a Judge among his
fellow-men".20 And in doing so, demands from him, amongst other
16 Article 8, 199 (5) of the Constitution

17 Article 212 and (other restrictions imposed by law)
18 Syed Arshad Ali and others Versus Pakistan Telecommunication Company Ltd. and others
(2008 S C M R 314); I.A. Sharwani and others versus Government of Pakistan through
Secretary, Finance Division, Islamabad and others (1991 S C M R 1041)
19 Lawrence B. Solum, "Virtue Jurisprudence: A virtue-centred Theory of Judging" (2004).
20 Preamble to the code of conduct
207
attributes: to be “cautious and forbearing”21; “to keep his conduct in all
things, official and private, free from impropriety”22; to avoid publicity
and “not engage in public controversy”23; and most important and
relevant to the present matter, "endeavour to avoid, as far as possible,
either on his behalf or on behalf of others, in litigation".24
18. Admittedly, there is no absolute bar on a sitting Judge to
resort to litigation. The command provided in the code of conduct is for
the worthy Judges to "endeavour to avoid" litigation in person or a
representative capacity. Thus all possible efforts are to be made by the
worthy Judges to avoid litigation, and resorting to the same should only
be made in dire need, and that too, as a last inevitable option. Caution
should always govern the need. In case, a sitting Judge having no other
possible alternative enters into litigation, he has to tread very carefully
and remain "cautious and forbearing" to ensure that his actions do not
infringe upon the respect and dignity attributable to the esteemed office
of the Judge. The object is to avert any chance of him being placed in a
position which leads to his conduct being seen as unbecoming of a
Judge.
19. I appreciate the repeated assertions of the worthy counsel
of the Petitioner that he is under the strict instructions of his client to
vehemently assert that the petition was moved for safeguarding the
independence of the judiciary and that he had accepted the brief for the
same reason. However, from the Petitioner’s point of view, the subject
matter of the present litigation, in pith and substance, revolves around
allegations of impropriety, no matter how baseless it may seem. This
being so, seeking to enforce the fundamental rights to challenge the very
charges against him to be ultra vires, and that too without withstanding
21 Article II of code of conduct

22 Article III of code of conduct
23 Article V of code of conduct
24 Article VI of code of conduct
208
the prescribed enquiry would negate the very spirit of the oath taken by
the petitioning Judge.
Conclusion
20. In view of the above deliberations, I am of the considered
opinion that the present petition is not maintainable. It starkly lacks one
of the essential conditions – enforcement of fundamental rights – for the
Supreme Court to invoke its original jurisdiction under Article 184(3) of
the Constitution. More so, when the positive exercise of the said
jurisdiction by this Court would in effect thaw the process of
accountability of one holding a public office, be it a Judge of the Supreme
Court. Accordingly, the instant petition being bereft of essential
constitutional requirements is non-maintainable, and thus, must fail.
CONSTITUTION PETITIONS NO. 19 TO 30, 32 AND 34 OF 2019
21. The Petitioners in these petitions include eminent lawyers
and the premier elected bodies representing the entire lawyers'
community of our country. Most strikingly, though they all have
independently moved this Court, yet they have in unison challenged the
very legality of the Reference filed by the worthy President against Justice
Qazi Faez Isa and the steps taken in pursuance thereof.
The Supremacy of the Supreme Judicial Council
22. I will first address the preliminary objection raised by the learned
counsel of the Federation regarding the lack of jurisdiction of this Court
to entertain the present petitions given the bar provided under Article
211 of the Constitution. The exclusive jurisdiction of the Council to
proceed against a sitting constitutional Judge under Article 211 of the
Constitution should stand supreme unless the same is effectively
challenged on the grounds of coram non judice, mala fide and want of
209
jurisdiction.25 To this end, I am not going to comment upon the merits of
the charges levelled against Mr Justice Qazi Faez Isa in the Reference, as
the same falls in the exclusive domain of the Council. Similarly, another
contested issue, the scope and extent of the culpability of a sitting Judge
qua the actions and inactions of his spouse and children, is a matter
which ought to have been expressly dealt with in the code of conduct. In
absence of a clear provision therein, this issue, in my opinion, has to be
left open for determination by the Council; the authority competent
under the Constitution26 to determine and prescribe the terms of the
conduct of a sitting judge.
23. Given the above, my present opinion would test the
challenge to the Reference on its constitutional plane, as to its
maintainability and validity, and not on the credence or merit of the
alleged misconduct. In the circumstances, any directions of this Court
setting steps for the Council to follow, and that too, without hearing the
learned counsel for the parties on the challenge made on the jurisdiction
and bona fide of the Council, would be premature and offend the
principle of natural justice. Moreover, a direction of this Court pre-
determining a course of action for the Council to follow, when the
Constitution already provides a clear mandate for the same, would
amount to usurping the exclusive constitutional jurisdiction vested in it
under Article 211 of the Constitution.
Maintainability of the Petitions under Article 184(3) of the

Constitution
24. In essence, these petitions seek the enforcement of the
fundamental rights i.e. access to justice and a fair and independent
judiciary. These issues, as stated earlier, have been treated by this Court
25 Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through

Secretary and others (PLD 2010 SC 61)
26 Under Article 209(8) of the Constitution
210
as “matters of public importance”. Moreover, it has also by now been
settled that for seeking matters of public importance relating to the
enforcement of fundamental rights before the original constitutional
jurisdiction of this Court, the general petitioner need not be an aggrieved
person in the strict sense.27 And more importantly, the present
Petitioners, unlike a sitting Judge of the superior court, are not shackled
by any legal restrain of a constitutional oath to invoke the original
constitutional jurisdiction of this Court. Resultantly, the present
Petitioners fulfil the two mandated condition precedents to invoke the
constitutional court under Article 184(3). Given the above, the objection
of the Federation to the maintainability of the petitions is devoid of merit,
and thus the same is dispelled.
Constitutional Requirements for a Presidential Reference
25. Our written Constitution envisages a Federation with a
parliamentary form of government, where the executive authority of the
Federation vests with the Cabinet headed by the worthy Prime Minister,
and all its acts are to be expressed in the name of the worthy President.28
The worthy Prime Minister personifies the executive authority of the
Federal Government, while the worthy President figures as the apolitical
head of the State, unifying the federating units, and maintaining the
balance of the trichotomy of power between the three organs of the State.
The role of the worthy President in the executive affairs of the
Government, under the Constitution, as a general rule29, is bound by the
“advice” of the Cabinet. However, the Constitution provides for
exceptions to the above rule30, where the worthy President has been
mandated to exercise his discretion or form his independent opinion on
27 Al-Jehad Trust v. President of Pakistan PLD 2000 SC 84; Suo Motu Action Regarding
Eligibility of Chairman and Members of Sindh Public Service Commission 2017 P L C (C.S.)
984), Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) Pakistan Muslim
League (N) through Khawaja Muhammad Asif v. Federation of Pakistan (PLD 2007
Supreme Court 642)
29 Article 48(1) of the Constitution
30 Article 48(2) of the Constitution
211
matters, and then act accordingly. Similarly, while performing some
“other constitutional” functions, the Constitution also dictates for the
worthy President not to be bound by the said "advice".
26. As far as the decision of the worthy President to send the
Reference against the Mr Justice Qazi Faez Isa under Article 209 of the
Constitution is concerned, the learned counsel representing the
Federation and defending the Reference, vehemently contended that the
same was to be sent on the "advice" of the worthy Prime Minister and
that it was binding upon the worthy President. On the other hand, the
learned counsel for the Petitioners have vehemently argued to the
contrary.
27. Before commenting on the above-narrated legal issue, it
would be appropriate to first contextualize the facts leading to the
sending of the Reference to the Council. Based on the complaint of Mr
Dogar, a summary was prepared and then moved by the Ministry of Law,
and finally placed before the worthy President, with the "advice" of the
worthy Prime Minister, in terms that:
“Subject: REFERENCE UNDER ARTICLE 209(5) OF THE CONSTITUTION OF

THE ISLAMIC REPUBLIC OF PAKISTAN
21. In terms of Article 209(5), read with Article 48 of the Constitution of the
Islamic Republic of Pakistan, 1973, the President is advised to form an opinion on
the proposals contained in paras 17 and 18 of the summary, and direct the
Supreme Judicial Council to inquire into the allegations of misconduct against Mr
Justice Qazi Faez Isa, a Judge of the Supreme Court of Pakistan. Accordingly,
draft reference (Attachment A) may pleased be signed.
(-sd-)
IMRAN KHAN
PM’s Office U.O. No. 1338/Secy(PM)/2019 dated 17-05-2019.
The worthy President signed and approved the summary with his
handwritten note in terms that:
22. The Prime Minister’s advice at Para 21 of the Summary is approved and
the Reference signed. (handwritten noting)
(-sd-) President
28. The above noting on the summary reflects the following:
firstly, that the "advice" of the worthy Prime Minister was unconditionally
212
approved by the worthy President; secondly, the approval so made by the
worthy President was without his independent application of mind on the
“information” contained in the summary regarding the alleged
misconduct against Mr Justice Qazi Faez Isa; and finally that, there was
no formulation of an "opinion" by the worthy President regarding the
sufficiency of the “information” to constitute misconduct against the
sitting Judge of the Supreme Court to file a reference.
29. Given the above factual background, the constitutional
mandate of the President to receive information regarding the alleged
misconduct of a Judge of a constitutional court, and the ultimate
decision to file a reference against him before the Council is governed by
Clause (5) of Article 209 of the Constitution, and it reads:
“(5) If, on information from any source, the Council or the

President is of the opinion that a Judge of the Supreme Court
or of a High Court-
(a) may be incapable of properly performing the duties
of his office by reason of physical or mental
incapacity; or
the President shall direct the Council to, or the Council may,
on its own motion, inquire into the matter.”
(emphasis provided)
30. A careful reading of the above provision, inter alia,
strikingly begs the following comments on a presidential reference:
firstly, that the "information" regarding the alleged misconduct of a
constitutional Judge, plays a very crucial and determining role in the
entire decision making of sending a reference against the said Judge to
the Council; secondly, the said "information" may emanate from "any"
source; thirdly, on receipt of the said information, the worthy President
has to form his opinion, or whether to proceed with the sending of the
reference or otherwise; and finally, that a Reference sent by the worthy
President has a special status, as compared to any other reference filed
before the Council, as an inquiry thereon is mandatory.

213
31. To legally appreciate the issue under review, the focus
should now be on the “advice” of the worthy Prime Minister to the worthy
President to file a reference against an honourable Judge of the superior
judiciary for his alleged misconduct.
32. In this regard, the contention of the learned counsel
representing the Federation, defending the Reference was that; sending a
Reference against a Judge of a constitutional court to the Council was an
executive act, and it came within the purview of the general rule,
envisaged under clause (1) of Article 48 read with clause (1) of Article 91
of the Constitution and clause 15A read with item 33 of the Schedule IV
of the Rules of Business, 1973 (“Rules of Business”); and thus the
“advice” of the worthy Prime Minister was binding upon the worthy
President. However, the learned counsel for the Petitioners vehemently
argued to the contrary.
33. The legal purport of clause (5) of Article 209 of the
Constitution portrays a picture contrary to the contention of the learned
counsel for the Federation. The constitutional mandate of the worthy
President, under the said provision, is to form an “opinion”: whether
misconduct is made out against the Judge, and if so, then a reference is
to be sent for an enquiry to the Council. This decision or for that matter,
the "opinion" is to be based on the "information" received from "any
source". The "advice" of the worthy Prime Minister when received by the
worthy President, would only be an "information" received from a
"source", and thus lose its efficacy as an "advice", within the
contemplation of clause (1) of Article 48 of the Constitution. In such
circumstances, the "advice" of the worthy Prime Minister would then fall
within the exception to the general rule, as envisaged under clause (2) of
Article 48 of the Constitution; where the worthy President would have to
apply his independent mind on the matter and then act accordingly.
214
34. The contention that the “advice” of the worthy Prime
Minister to file a reference against Judge of a constitutional court was
binding on the worthy President would have been reasonably plausible
only if we omit to read the words, "If, on information from any source,"
prefacing Article 209 (5). It is only then that the "advice" of the Prime
Minister would maintain its constitutional identity, and not be
categorized as an "information" reaching the worthy President from a
"source". This, I am sure, could not be the intent of the legislature, as
every word of the Constitution has a purpose and meaning to it. No word
is to be rendered redundant. More so, when the words so provided in the
Constitution, given their ordinary meaning, convey no absurd purpose or
meaning.31 In such circumstances, the will of the legislature, as reflected
in the letter of the law, has to be respected and abided. Thus, in the face
of the command of the Constitution, any contrary provision contained in
the Rules of Business, as relied upon by the learned counsel for the
Federation, would have to yield and be declared ultra vires of the
Constitution.
35. One cannot lose sight of the special constitutional status
assigned to a Presidential Reference under Article 209(5) of the
Constitution. Unlike other complaints received by the Council, which can
be discarded without any formal enquiry, a Presidential Reference,
however, commands a mandatory enquiry by the Council. This being so,
the decision-making process leading to the worthy President sending a
reference to the Council under Article 209(5) deserves careful and
thorough deliberation by the worthy President. Given the facts relating to
the opinion formed by the Worthy President in the present case, I have
noted that it demonstrates grossly negligent attitude lacking any
application of mind. Instead of applying his independent mind to the
31 Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources v.

Durrani Ceramics (PLD 2015 Supreme Court 354); Baz Muhammad Kakar v. Federation of
Pakistan through Ministry of Law and Justice (PLD 2012 Supreme Court 923); Shahid Nabi
Malik v. Chief Election Commissioner ( PLD 1997 Supreme Court 32)
215
seriously important matter placed before him, the worthy President
blindly accepted and followed the "advice" of the worthy Prime Minister to
send the Reference to the Council. The formation of the “opinion” by the
worthy President was, it seems, muddied by the blatant and uncalled for
obedience to the “advice” of the worthy Prime Minister.
36. Accordingly, for the reasons discussed above, I hold that
the worthy President has grossly failed to discharge his constitutional
obligations as ordained under Article 209(5) of the Constitution. Since
the very foundation of the "opinion" formed by the worthy President is
based on the non-exercise of lawful jurisdiction, therefore the
'superstructure' built thereon, the signing and sending of the Reference
to the Council would lack legal sanction and be without lawful authority,
and thus ultra vires of the Constitution. Consequently, the proceedings
before the Council in furtherance of the Reference against Mr Justice
Qazi Faez Isa stand abated.
Legal validity of Information Obtained Unlawfully
37. One must be mindful of the fact that even the above-
recorded findings declaring the Reference to be without lawful authority
are not to be understood or construed to belittle or diminish the
authority vested in the Council to proceed on the information of alleged
misconduct of a sitting Judge.
38. It is also pertinent to note that any “information” capable of
being translated into evidence could be measured on the principles of the
law of evidence; relevance and admissibility, and not the source of such
information or evidence, unless it is hit by an exclusionary rule. It is by
now a well-recognized principle in Common Law jurisdictions, in
particular in the United Kingdom32, Canada33, and India34 that, when
32 The point was put starkly by Crompton J. in England in the 19th century: “It matters not
how you get it; if you steal it even it would be admissible in evidence..” R. v. Leatham
(1861), 8 Cox C.C. 498, at 501, [1861-73] All E.R. Rep. Ext. 1646; R v Sang, [1979] 2 All ER
1222; Kuruma v. The Queen (PLD 1957 Privy Council 32); Jones v the University of
216
such information is relevant, the admissibility thereof would follow.
However, there is a divergence of opinion witnessed in the judicial
pronouncements germinating from the United States of America35, which
I, with great respect, do not subscribe to. The judicial stance taken
across the Atlantic to disregard taintedly obtained evidence would only
be legally palatable if viewed in their territorial context, and that too with
the constitutional prohibition to search and seize properties under the
Fourth Amendment.
39. Now reverting to Clause (5) of Article 209 of the
Constitution, the information, though obtained and disclosed unlawfully,
if admitted would fall within the mischief of “information from any
source”. And thus, it would remain the discretion of the Council to
decide; whether based on the said admitted information, it would suo
motu proceed against a sitting Judge or otherwise. Any finding by this
Court on the probative value of the information or any direction to the
Council to act in a particular manner, and that too at this stage, would
not only be premature but also amount to usurping the constitutional
domain of the Council.
Information in Mr Dogar’s Complaint
40. Much has been stated about Mr Dogar and his complaint of
10-4-2019 (“Complaint”). His lack of standing, as a journalist; his mala
fide in filing the complaint against the wife of Mr Justice Qazi Faez Isa
owning foreign property in the United Kingdom; he being a proxy of
disgruntled elements in the ruling establishment; and most strikingly
that, the information regarding the foreign property of Mrs Sarina Isa
Warwick, [2003] 3 All ER 760[2003] 3 All ER 760; Imerman v Tchenguiz and others;
Imerman v Imerman, [2011] 1 All ER 555 [2011] 1 All ER 555.
33 Propp v. Propp, 2014 SICCA 5, [2014] S.J. No. 12, at para. 41 (Sask. C.A.)
34 Magraj Patodia vs R. K. Birla and Ors (1971 AIR 1295, 1971 SCR (2) 118); RM Malkani vs.
the State of Maharashtra (AIR 1973 SC 157); Umesh Kumar v. State of Andhra Pradesh
(AIR 2014 SC 1106)
35 Boyd v. the United States (116 U.S. 616(1886); Weeks v. United States (232 U.S. 383(1914);
U.S. v. Leon (468 U.S. 897, 104 S.Ct. 3405 (1984); Mass. v. Sheppard (468 U.S. 981 (1984);
Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232 (1976); Terry v. Ohio, 382 U.S. 1 (1968);
Adams v. Williams, 407 U.S. 143 (1972).
217
stated in his complaint was obtained by surveillance by the intelligence
agencies on the directions of the Federal Government.
41. The foreign property highlighted in the Complaint has been
admitted by Mr Justice Qazi Feaz Isa to be owned by his wife, Mrs Sarina
Isa. In view thereof, any negative aspersions against Mr Dogar, at least to
the extent of the adjudication of the present petitions, are legally
insignificant, if not entirely irrelevant.
Unlawful Surveillance
42. It is universally recognized that unlawful surveillance of any
person, much less a sitting Judge of a constitutional court is to be
seriously deprecated. Our Constitution exalts the right to privacy36 and
guarantees that every citizen is to be dealt with in accordance with the
law.37 Thus, any action by the executive, without the backing of the law,
violating or undermining the independence of the judiciary would
constitute the offence of subversion of the Constitution, entailing severe
penal consequences for both the actors and abettors.
43. The Petitioners were able to place on record, sufficient
material to demonstrate strong reservations of the ruling party in
Government and its political allies against the judicial pronouncement
authored by Mr Justice Qazi Faez Isa.38 In such circumstances, had the
information regarding the foreign property owned by the family members
of Mr Justice Qazi Faez Isa not been freely and legally accessible, then it
would have sufficed to establish the allegation of obtaining the said
information through surveillance. To this end, the learned counsel for the
Petitioners was initially able to successfully set up their stance. However,
the learned counsel for the Federation, in rebuttal, was able to
demonstrate that the information regarding any property in the United
Kingdom, including the one owned by the family member of Mr Justice

38 In SUO MOTU CASE NO.7 OF 2017 (PLD 2019 Supreme Court 318)
218
Qazi Faez Isa could be retrieved or accessed through internet searches.
And further, placing on record, a copy of the title of the said foreign
property, pre-dating the Complaint, and that too, from the relevant and
competent authority under the laws of the United Kingdom
(“Certificate”)39 confirmed that the requisite search under the laws of the
United Kingdom had already been carried out. Hence, the stance of the
Petitioners regarding mala fide of the Federal Government did not cross
the legal threshold to saddle it with the responsibility of unlawfully
obtaining the said information by surveillance.
Asset Recovery Unit’s Legal Status
44. The legal sanction for establishing the Asset Recovery Unit (“ARU”)
has also been a matter of contest between the parties. The question that
arises is whether this controversy is so integral to the impugned
Reference that it must be decided. I am in such a situation reminded of
Justice Frankfurter’s dictum: "[t]hese are perplexing questions. Their
difficulty admonishes us to observe the wise limitations on our function
and to confine ourselves to deciding only what is necessary to the
disposition of the immediate case."40 In the present case, the controversy
in hand can be resolved based on the legality of the actions taken by the
Chairman of ARU, passing a definite finding on the legal status of ARU
would be unnecessary, if not legally incorrect.
Verification of Mr Dogar’s Complaint from Income Tax Officials
45. The steps taken for the verification of the information
contained in the Complaint from the Income Tax authorities in Pakistan
can be summarised in terms that the Law Minister41, on being informed
about the allegations contained in the Complaint, directed the Chairman
ARU, to seek verification of the ownership of the said foreign property
39 Certificate dated 26.04.2019 (CMA No.3321/2020)

40 Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 372-73; On the same line Justice
Robert said, “if it is not necessary to decide more, it is necessary not to decide more.” PDK
Labs. Inc. v. United States DEA, 360 U.S. App. D.C. 344, 362 F.3d 786 (2004)
41 Direction/advice of the Law Minister to Chairman, ARU in meeting dated 16.04.2019
recorded in letter No. 1-11/20-19-ARU dated 10.05.2019
219
from the income tax returns of Mr Justice Qazi Faez Isa or his wife, Mrs
Sarina Isa. In pursuance of the directions of the Law Minister, Chairman
ARU42 sought confidential information from the then Chairman Federal
Board of Revenue, who, without any protest, complied blindly thereto43;
and particulars of their income tax returns filed and maintained under
Income Tax Ordinance, 2001(“Ordinance”) were disclosed to Chairman
ARU by Chairman Federal Board of Revenue44; and finally, the said
confidential information was further passed on by Chairman ARU to the
Law Minister and was then made the basis for the Reference.45
Confidentiality of Income Tax Returns and the Penal Consequence for its
breach
46. The above-stated conduct of the Law Minister, the
Chairman ARU, the then Chairman Federal Board of Revenue and the
complying Income Tax Officials, when viewed in terms of the provisions
of the Ordinance, raises serious legal concerns regarding their said
actions. To start with, the Ordinance expressly provides for
confidentiality of information recorded in the income tax returns of an
assessee.46 The income tax officials, who are the custodian of the said
information, are commanded under the law to jealously guard the same,
and in case of any breach thereof, the offender is to face penal
consequences under the Ordinance.47 However, this confidentiality of
information would in no way prevent the competent income tax officials
to seek from the assessee, the source of funds48 for the acquisition of any
assets. In case, the competent income tax official is not satisfied with the
explanation for the source of funds, he can departmentally proceed
against the assessee for non-declaration and misdeclaration of assets
under the enabling provisions of the Ordinance.
42 Letter No. 1-11/2019-ARU dated 22.04.2019

43 F.No.2(99)Int. Taxes/EOI/2019 dated 10.05.2019
44 FBR disclosed information to ARU vide letter No. F. No. 2(99)Int. Taxes/EOI/2019 dated
10.05.2019
45 ARU further pass on the information to Law Minister vide letter No. 1-11/2019-ARU dated
20.05.2019
46 Section 216 of Ordinance
47 Sections198 and 199 of Ordinance
48 Sections 111 and 216 Ordinance
220
47. In the present case, once the Income Tax Officials had information
regarding the alleged undeclared assets of Mrs Sarina Isa, they despite
having ample authority to legally proceed against her under the
Ordinance, opted to proceed unlawfully by disclosing confidential
information to unauthorized persons. Thus, prima facie, keeping in view
the chain of directions emanating from the Law Minister leading to the
unlawful disclosures of confidential information by the Income Tax
Officials, all persons at different rungs of the governmental hierarchy,
who were part of this unlawful disclosure of confidential information,
have exposed themselves to penal prosecution for commission of offences
under Section 189 read with Section 199 and section 216 (1) of the
Ordinance.
Immunity from Penal Consequences for Breach of Confidentiality
48. The worthy counsel representing the Federation contended
that the information so directed to be obtained, disclosed and received
was immune from penal consequences, as it was in furtherance of an
enquiry against a “public servant”, which was legally protected from
prosecution under Section 216(p) of the Ordinance. For clarity, let us
review the penal as well as the asserted saving provisions under the
Ordinance, which read:
198. Prosecution for unauthorized disclosure of information

by a public servant.--A person who discloses any particulars in
contravention of 1[sub-section IB of section 107 or] section 216
shall commit an offence punishable on conviction with a fine 2[of
not less than five hundred thousand rupees] or imprisonment for
a term not exceeding 3[one year], or both.
199. Prosecution for abetment. – Where a person 4[knowingly

and willfully] aids, abets, assists, incites or induces another
person to commit an offence under this Ordinance, the first-
mentioned person shall commit an offence punishable on
conviction with a fine or imprisonment for a term not exceeding
three years, or both.
216. Disclosure of information by a public servant.--(1) All

particulars contained in:
(2) Any statement made, return furnished, or

accounts or documents produced under the
provision of this Ordinance; …….
221
shall be confidential and no public servant save as provided in

this Ordinance may disclose any such particulars.
(2) Notwithstanding anything contained in the Qanun-e-

1[Shahadat], 1984 (P.O. Order No. 10 of 1984, or any other law
for the time being in force, no court or other authority shall be,
save as provided in this Ordinance, entitled to require any public
servant to produce before it any return, accounts, or documents
contained in, or forming a part of this records relating to any
proceedings under this Ordinance, or any records of the Income
Tax Department generally, or any part thereof, or to give evidence
before it in respect thereof.
(3) Nothing contained in sub-section (1) shall preclude the

disclosure of any such particulars--
……….
(p) as may be required by any officer or department

of the Federal Government or a Provincial
Government for an investigation into the conduct
and affairs of any public servant, or to a Court in
connection with any prosecution of the public
servant arising out of any such investigation;
49. A careful reading of the above provisions, brings forth the
intent of the legislature to seriously protect the confidentiality of
information recorded in the income tax returns of an assessee. This
intent is evident from the said information being expressly excluded from
judicial scrutiny and more importantly declaring such breach of
confidentiality to be an offence following penal consequences.
50. Apart from the strict statutory protection of the said
information, one must appreciate that the Law Minister and the
Chairman ARU lacked the mandate to initiate an enquiry against a
sitting Judge of the Supreme Court, as the legal domain to do so rests
solely with the Council, and none other. Even otherwise, the information
relating to income tax returns of Mrs Sarina Isa would not fall within the
scope of the purported enquiry of a "public servant" envisaged under
Section 216(3)(p) of the Ordinance. The particulars of Mrs Sarina Isa's
income tax returns would remain immune from such permissible
disclosures and thus retain its confidentiality. Surely, the legal position
would have been otherwise, had Mrs Sarina Isa consented to allow such
disclosure, which she did not or had the competent tax authorities
initiated proceedings against her under the Ordinance, which they never
222
did. This being so, passing any directions by this Court to the tax
authorities with specific time spans and setting the procedure for the
Income Tax officials to proceed against Mrs Sarina Isa, would amount to
parallel legislation, when the Ordinance provides a framework for all
such matters. More so, when such directions have been made against a
person who was not a party to the present petitions. In the
circumstances, any such directions of this Court would amount to
prosecute her, and that too without providing her with an effective
opportunity of hearing.
51. It was further vehemently asserted that the Law Minister
was immune from criminal prosecution under Article 248 of the
Constitution. It is by now judicially settled that there is no protection
extended to holders of constitutional office from prosecution for their
illegal acts.49 Hence, no constitutional immunity from prosecution would
be available to the Law Minister or any other Federal Minister for issuing
directions to obtain legally confidential information, and that too in the
face of the said direction to an officer of the Government to commit an
offence under the Ordinance.
Administrative and Penal Consequences for Passing on Confidential

Information
52. The direction of the Law Minister and the Chairman ARU to
solicit, obtain and receive, confidential information regarding the income
tax returns of Mr Justice Qazi Faez Isa and Mrs Sarina Isa, prima facia,
exposes them to criminal prosecution for having committed an offence
under the section 199 read with sections 198 and 216(1) of the
Ordinance. Similarly, the fact that the then Chairman Federal Board of
Revenue and the Income Tax Officials having not refused the illegal
directions of the Law Minister and Chairman ARU, and passing on
49 Ch. Zahur Ilahi's Case (PLD 1975 SC 383); Aman Ullah Khan's Case (PLD 1990 SC 1092); Nawabzada
Muhammad Umar Khan's Case (1992 SCMR 2450); Baz Muhammad Kakar v. Federation of Pakistan through
Ministry of Law and Justice, Islamabad (PLD 2012 SC 870); Chief Justice of Pakistan Iftikhar Muhammad
Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 Supreme Court 61)
223
confidential information to them, prima facia, exposes them not only to
departmental action but also to penal consequences under section 198
read with section 216(1) of the Ordinance.
53. Accordingly, for the reasons stated above, the present
Chairman, Federal Board of Revenue is directed to ensure that the entire
record of the present case is placed before the Federal Board of Revenue
to proceed under the law, against the Law Minister, the Chairman ARU,
the then Chairman, Federal Board of Revenue and all the concerned
Income Tax Officers qua their role in ordering to inquire into, solicit,
disclose and receive confidential information relating to the income tax
returns of Mr Justice Faez Isa and Mrs Sarina Isa.
54. Keeping in view the sensitive nature of the proceedings, the
present Chairman, Federal Board of Revenue is to further appraise the
Federal Board of Revenue to strictly follow the law in letter and spirit,
without fear or favour, and most importantly, to independently apply its
mind to the facts of the matter, lest the fundamental right to a fair trial
under Article 10-A of the Constitution of the Law Minister, the Chairman
ARU, the then Chairman, Federal Board of Revenue and the delinquent
Income Tax Officials is violated. A compliance report of the above action
of the Federal Board of Revenue is to be submitted by present Chairman,
Federal Board of Revenue under his signature to the Registrar of the
Supreme Court not later than fifteen days from receipt of this Judgment.
The Registrar of this Court is directed to transmit a copy of this
Judgment to the Chairman, Federal Board of Revenue for compliance.
Conclusion
55. The present constitutional challenge made by the
Petitioners representing the entire lawyers' community of the country,
have been able to successfully establish that the worthy President
grossly failed to exercise his discretion as mandated under the
Constitution and, thus, the entire process built thereon leading to the
224
filing of the Reference was in violation of the law and the Constitution. At
the same time, it is intrinsically important to note that, the independence
of our judiciary is not so fragile as to be effectively threatened or
undermined by complaints. Accountability of Judges is and shall remain,
the essential lifeblood for a democratically vibrant society. Indeed,
indiscriminate, lawful and transparent accountability of Judges would
further bolster the independence of the judiciary, boast public trust, and
thus, promote the rule of law in our country. And to consider otherwise
would be to accede to judicial autocracy.
Judge

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IN THE SUPREME COURT OF PAKISTAN

CONSTITUTION PETITION NO.17 & 19 OF 2019

Justice Qazi Faez Isa … Petitioner(s)

Supreme Court Bar Association thr. … Petitioner(s)

Abid Hassan Minto & another … Petitioner(s)

Pakistan Bar Council thr. … Petitioner(s)

Abdul Basit, President High Court … Petitioner(s)

Muhammad Asif Reki, President … Petitioner(s)

Sindh High Court Bar Association … Petitioner(s)

Balochistan Bar Council thr. its … Petitioner(s)

Sindh Bar Council thr. it Secretary … Petitioner(s)

Hafiz Abdur Rehman Ansari, ASC … Petitioner(s)

Karachi Bar Association through … Petitioner(s)

KPK Bar Council through … Petitioner(s)

Peshawar High Court Bar Association … Petitioner(s)

Shahnawaz Ismail, Vice Chairman … Petitioner(s)

Pakistan Federal Union of Journalists … Petitioner(s)

The President of Pakistan and others …Respondent(s)

The Supreme Judicial Council thr. … Respondent(s)

Const. P. No.17 of 2019.

Mr. Babar Sattar, ASC.

Syed Kazim Hassan, ASC.

Const. P. No.19 of 2019.

Syed Qalb-e-Hassan, ASC.

Mr. Rasheed A. Rizvi, Sr. ASC.

Const. P. No.20 of 2019.

Const. P. No.21 of 2019.

Hafiz M. Idrees, ASC.

Syed Rifaqat Hussain Shah, AOR.

Const. P. No.22 of 2019.

Const. P. No.23 of 2019.

Sh. Ahsan-ud-Din, ASC.

Const. P. No.24 of 2019.

Const. P. No.25 of 2019.

Mr. Rashid A. Rizvi, Sr. ASC.

Const. P. No.26 of 2019.

Const. P. No.27 of 2019.

Const. P. No.28 of 2019.

Const. P. No.29 of 2019.

Mr. Abdul Latif Afridi, ASC.

Const. P. No.30 of 2019.

Mr. Abdul Latif Afridi, ASC.

Const. P. No.32 of 2019.

Const. P. No.34 of 2019.

For respondents (2&8) : Dr. Farogh Naseem, Sr. ASC a/w

For respondent No. 1 : Mr. Sohail Mehmood, DAG.

For respondent No.3 : Mr. Aamir Rehman, Addl. AG.

For respondent No. 4 : Mr. Irfan Qadir, ASC

For respondent No.9 : Dr. Khalid Ranjha, Sr. ASC a/w

For respondent No.10 : Abdul Waheed Dogar (in-person).

For respondent No.11 : Waheed Shahzad Butt (in-person).

For Supreme Judicial : Mr. Arbab Arif, Secretary, SJC/

Dates of hearing : 17.09.2019; 24.09.2019; 08.10.2019;

02.06.2020; 03.06.2020; 04.06.2020;

UMAR ATA BANDIAL J.-

Justice is an article of faith in our religion, whether that may

be against our kith and kin or against the rich or poor.

However, justice is an abstract concept attainable only where

the scales of justice are held by persons (the Judges) who