Law: Constitution of Pakistan, 1973

Section: 184(3),4,9,10-A,184(3),209(5)(b)

(a) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope and pre-requisites---In order to invoke the original jurisdiction of the Supreme Court under Art. 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 affected the public at large.

Al-Jehad Trust and another v. Lahore High Court 2011 SCMR 1688 ref.

(b) Constitution of Pakistan---

----Arts. 4, 9, 10-A, 184(3) 209(5)(b)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Maintainability---Fundamental right of the general public which was claimed by the petitioner to be under threat was the derivative right of the independence of the judiciary---Said right was an essential prerequisite for the enjoyment of, inter alia, the principal fundamental right to access justice which was guaranteed to the people by Arts. 4, 9 10-A of the Constitution---In the absence of independence of the judiciary, all other facets of the right to access justice were essentially rendered null and void---Unlawful infringements of Art. 209 of the Constitution eroded the independence of the judiciary which was directly connected with the right to access justice---Present petition, therefore, satisfied the two-fold requirements of Art. 184(3) of the Constitution, and was accordingly maintainable.

Sh. Riaz-Ul-Haq v. Federation of Pakistan PLD 2013 SC 501 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

(c) Constitution of Pakistan---

----Arts. 209(5) 209(6) Preamble---Independence of judiciary and accountability of judges, concepts of---Complementary concepts---Independence of the judiciary was not primarily for the benefit of the Judges, but existed instead to secure the interests, rights and benefits enjoyed by the whole of society---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 would not be the independence of judiciary that would result but rather it would be the rule of Judges without any checks and balances---Accordingly, it was only fitting that judicial independence and accountability were treated as being complementary to each other.

(d) Constitution of Pakistan---

----Arts. 184(3), 209(5)(b) 211---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Proceedings before Supreme Judicial Council (the Council )---Bar of jurisdiction of courts---Whether Art. 211 of the Constitution that barred jurisdiction of courts in respect of proceedings before the Council was applicable in the present case---Held, that in present proceedings under Art. 184(3) of the Constitution the Supreme Court was neither adjudicating upon the process of the Council nor quashed its notice issued to the petitioner-judge---In fact, in view of the findings recorded in the present , the Supreme Court had simply abated the notice---Factual information underlying the reference did cast a smear on the petitioners name and could not be ignored; however, without confronting the owners of the foreign properties the information was at present inchoate to form the basis of proceedings under Art. 209 of the Constitution---In such circumstances, the same must be verified to test the veracity of the inference drawn in the reference about the source of funds---Nevertheless, as the reference had been quashed, the notice issued by the Council had no foundation except for the preliminary factual information contained in the reference---In this situation, the notice had rightly been abated because it also lacked the factual and legal material on which the reference was based---Accordingly, Art. 211 of the Constitution had no application to the available facts of the present case---Constitutional petitions were disposed of.

(e) Constitution of Pakistan---

----Arts. 184(3), 209(5) 209(6)---Presidential reference against a judge of the Superior Court before the Supreme Judicial Council (the Council)---Pre-reference proceedings---Whether the Supreme Court could strike down pre-reference proceedings on judicial review grounds---Reasons for quashing the Presidential reference recorded.

Supreme Judicial Council (the Council) was a unique (and the only) body which could examine the conduct of a Superior Court Judge and decide whether the said Judge was fit to complete his tenure. Reference, which was an executive action under the Constitution, forwarded to the Council should not be struck down on ordinary judicial review grounds such as unreasonableness and proportionality, as doing so would be belittling its status, ignoring its competence and pre-empting its decisions based on appreciation of the record. Giving the power of judicial review to the Supreme Court to set aside pre-reference proceedings would be tantamount to rejecting the capacity and jurisdiction of the Council to adjudicate upon any question of unreasonableness, proportionality or suitability raised in relation to the merits of the Presidents actions; it would also open the floodgates of litigation by Judges who were the subject of a reference. Such course of action prima facie appeared to be contrary to the meaning of Article 209 of the Constitution which entrusted all matters regarding the merits of a case to a high powered Constitutional domestic forum within the judiciary.

Khan Asfandyar Wali and others v. Federation of Pakistan PLD 2001 SC 607 and Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189 ref.

(f) Constitution of Pakistan---

----Arts. 209(5)(b) 209(8)---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209 (8) of the Constitution), Preamble---Supreme Judicial Council Procedure of Enquiry 2005, R. 3(l)---Supreme Judicial Council (the Council)---Reference against a judge of the Superior Court on grounds of misconduct---Misconduct---Meaning, scope and standard of proof.

Any conduct of a judge which conflicted with the mandated norms in the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209 (8) of the Constitution) [the Code] could attract scrutiny for possible misconduct. The Code primarily provided guidance to Judges of Superior Courts on the exemplary qualities they must possess, and it expected that Judges would conduct themselves with integrity, propriety and dignity both in their public and private lives and would not engage in controversy. Therefore, conduct that diverged from these qualities would constitute misconduct.

Articles of the Code were 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. The Code does not only expect impeccable behaviour from a Judge in the courtroom but it also expected him to maintain these high standards of integrity, propriety and dignity outside the Court. Such qualities and conduct were necessary to preserve not only the prestige and honour of the Judge but also the prestige and honour of the institution of the judiciary. [p. 98] Q1 R1

Misconduct was any conduct of the Judge which damaged the publics perception about his ability to discharge his duties or which undermined public confidence in the institution of the judiciary regardless of whether such conduct occurred in the professional arena or in the private life of a Judge. [p. 100] T1

The Supreme Judicial Council Procedure of Enquiry, 2005 (the 2005 Rules) had been framed by the Supreme Judicial Council (the Council) to implement its mandate and regulate its own proceedings, therefore, they carried special force and stood on a higher pedestal than ordinary laws. The 2005 Rules provided guidelines for the conduct of the Council proceedings and the exercise of its jurisdiction. The Council as the constitutionally empowered body had been utilising the criteria of misconduct noted in Rule 3(l) of the 2005 Rules and elaborated upon in the Code to assess the culpability of Superior Court Judges. Rule 3(l)(i) of the 2005 Rules succinctly encapsulated the normative standards of misconduct provided in the Code whilst Rule 3(l)(iii) included an objective criterion that related to a Judges professional performance. Both criteria were consistent with the Code. [pp. 93, 94] M1 N1

The threshold that constituted misconduct for the purposes of Judges of the Superior Courts should manifest the intent and spirit of Article 209 of the Constitution. Accordingly, the standard for the commission of misconduct must not be so high that it was 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. [p. 96] O1

Misconduct recognised under Article 209(5) of the Constitution gave discretion to the Council to determine whether any alleged conduct of a Judge came under the purview of misconduct. It also laid 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 did not render them liable to removal proceedings. At the same time it protected the integrity of the judicial institution by allowing for the removal of Judges whose conduct without constituting a violation of a prescribed law was so improper that it rendered such Judge unfit for holding judicial office. [p. 97] P1

Interpretation of misconduct set out by the Supreme Court in the case of The State v. Mr. Justice Akhlaque Husain (PLD 1960 SC 26) reflected the intent and spirit of Article 209(5) of the Constitution, the Code and the 2005 Rules. [p. 98] S1

The State v. Mr. Justice Akhlaque Husain PLD 1960 SC 26; Lawrence v. Attorney General of Grenada 2007 UKPC 18 at para-25; Clark v. Vanstone 2004 FCA 1105 and Privy Council in Hearing on the Report of the Chief Justice of Gibraltar 2009 UKPC 43 at para-202 ref.

(g) Constitution of Pakistan---

----Arts. 209(5)(b) Fifth Sched., Cl. 4---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209(8) of the Constitution), Art. II---Federal Service Medical Attendance Rules, 1990, R. 10---Supreme Court Judges (Travelling Allowance) Rules, 1958, Rr. 3(4)(i) 4(i)---Supreme Court Judges (Leave, Pension and Privileges) Order, 1997, Rr. 20, 21 25---UN Economic and Social Council Resolution 2006/23: Strengthening Basic Principles of Judicial Conduct, Cl. 4.7---Family members of a Judge of the Superior Court---Financial affairs---Question as to whether a Judge of the Superior Court needed to be aware/have knowledge of the financial affairs of his independent spouse and adult children---Held, that family members of a Judge were required to be careful (financially, socially and politically), moderate and fair in their dealings and exchange with others so that no controversy arose which may embarrass the Judge---High standards of propriety were expected of a Judge and his family members---Judges were supposed to have knowledge of the financial interests of their family members, however, if they did not, then they were expected to make reasonable efforts to acquire such information, moreso when they were questioned by a competent forum to explain the financial interests of their family members---Accordingly, there was a continuing obligation on a Judge to keep himself informed about the financial interests of his family members.

Judges, like other public office holders, occupied a position of sacred trust. They held positions where they exercised power and authority under the law. Under the Constitution and the law, such a position carried certain benefits and privileges accompanied by obligations and responsibilities. A Judge of the Superior Court was entitled to these perks and benefits which were also enjoyed by his spouse and family. [p. 101] V1

Generally, every adult individual was recognised in law as an independent entity. However, different principles applied in relation to family members of public office holders. This was because any irresponsible act on the part of a family member may reflect adversely on the Judge. [p. 103] X1

Entitlements of the Judge which he shared with his family [his spouse and members of his family who were either dependent on him or with whom he had financial dealings (family members)] also carried certain responsibilities and obligations. One such obligation was the duty to enjoy these privileges with dignity, probity and discretion. Apart from the material benefits enjoyed by a Judges family members during and after his service, they also received an advantage from the respect and recognition extended, through association, by people who interacted with them. In these circumstances, the family members of a Judge were required to be careful (financially, socially and politically), moderate and fair in their dealings and exchange with others so that no controversy arose which may embarrass the Judge. Although these responsibilities were shared by family members of all public office holders, they applied with particular force to family members of Judges as the latter were expected to be the embodiment of a person who was God fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed [Article II of the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209 (8) of the Constitution]. Accordingly, high standards of propriety were expected of a Judge and his family members. [p. 102] W1

Suo Motu Case No. 5 of 2012 PLD 2012 SC 664 ref.

A Judge was required to make reasonable efforts to be aware about the financial affairs of his family members. This precaution helped to forewarn him about extraneous influences or vested interests which could compromise not only his independence and credibility but also the purity and honour of the institution to which he belonged. 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 had to understand the nexus of this obligation with the nature of Judges work and the position they occupied in society. Judges exercised pre-eminent authority under the law. They adjudicated disputes between litigants, held parties appearing before them accountable and imposed liabilities and granted relief to such parties. With their authority came an even greater responsibility to decide cases fairly, independently and in accordance with law. In such a situation, it was 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 came before him which directly or indirectly involved the pecuniary, proprietary or other personal interests of any of his family members, he could recuse himself. [p. 104] Y1 Z1

Government of N.W.F.P v. Dr. Hussain Ahmad Haroon 2003 SCMR 104 ref.

Another equally, if not more, important reason for requiring Judges to be aware of the financial interests of their family members was that the laws intent was to prevent a Judges family from becoming a conduit to discreetly influence his opinions and views. This assured the Judges independence and integrity apart from safeguarding the institution of the judiciary. [p. 105] A2

Judges were supposed to have knowledge of the financial interests of their family members. However, if they did not, then they were expected to make reasonable efforts to acquire such information, moreso when they were questioned by a competent forum to explain the financial interests of their family members. What constituted reasonable effort on the part of Judges would 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 was untenable in light of the general trend in international practice, the obligations imposed on a Judge under the Code of Conduct for Judges of the Supreme Court and High Courts [framed by the Supreme Judicial Council under Article 209(8) of the Constitution] and the law relating to public office holders including Judges. Accordingly, there was a continuing obligation on a Judge to keep himself informed about the financial interests of his family members. [p. 107] B2

(h) Mala fides---

----Types of mala fides---Mala fide in law and malice in fact---Distinction.

Traditionally, an action actuated with an ulterior purpose to harm another or benefit oneself was classified as an act that was malicious or malice in fact. However, in recent times, the Supreme Court had recognised another category of mala fides, namely, mala fide in law. Even though both were a species of mala fide, yet each had distinct ingredients and consequences. [p. 109] C2

Said Zaman Khan v. Federation of Pakistan 2017 SCMR 1249 ref.

Apart from the generally recognised category of actions driven by a foul personal motive described as malice in fact, there was another category of reckless action in disregard of the law termed as mala fide in law. The first type of mala fide was attributed to a person whereas the second was levelled against the impugned action. While the former was concerned with a collateral purpose or an evil intention to hurt someone under the pretence of a legal action, the latter dealt with actions that were manifestly illegal or so anomalous that they lacked nexus with the law under which they were taken. Thus it was clear that malice in fact and mala fide in law had different ingredients, the former being comprised of factual elements with the latter being composed of legal features, that needed to be established as such for the respective consequences to ensue. Secondly, an accusation of mala fide in law involved more than errors of misreading the record or non-application of the law or lack of proportionality in the impugned action. Instead, this was a serious allegation of wanton abuse or disregard of the law. However, when an ulterior motive to cause harm was proved then the repercussions of malice in fact followed. It was for this reason that a mere allegation that an action had been taken wrongly could not be grounds to hold that such action suffered from mala fide in law or malice in fact. [p. 110] D2

Imputing mala fide of either kind to a person or an action was a grave accusation. It should not be made lightly but could only be done when the facts or legal defects justified its use. [p. 110] E2

(i) Mala fides---

----Malice in fact---Scope and standard of proof.

Plea of malice in fact required a high standard of proof. The rationale behind such an approach was that a plea of malice in fact frustrated the process of justice. After a complainant established malice in fact against a person, the entire proceeding by the latter was brought to an end. This resulted in the merits of the case being ignored. Moreover, the reputation of the person, against whom an allegation of malice in fact was made, became tarnished and if the said allegation was proved then his repute was forever ruined. He was made out to be avicious individual who harboured ill-intentions against others. Such were the negative consequences of this plea, if established. This reasoning applied with greater force if such an allegation was made against senior public functionaries of the State. [p. 110] F2

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

Federation of Pakistan v. Saeed Ahmed Khan and others PLD 1974 SC 151 ref.

An allegation of malice in fact was unlike any other ordinary allegation. It carried with it a stigma for the accused which could not easily be washed away. If a lower standard of proof for malice in fact was adopted, that would open the 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, any person who wished to raise this plea must prove it to the satisfaction of the Court on the basis of positive and cogent evidence. [p. 111] G2

Moreover, there was also an obligation on litigants to plead the particulars of malice in fact in detail. Vague allegations could not establish a plea of malice in fact. [p. 111] H2

Federation of Pakistan v.. Saeed Ahmed Khan and others PLD 1974 SC 151 ref.

Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.

Accordingly, to raise the plea of malice in fact, it was necessary for the relevant party to pinpoint the specific incidents/events/actions which demonstrated the malice in fact of the opposing side. [p. 112] I2

Allegation of malice in fact would be defeated if it was proved that a complaint levelled against a person was true. [p. 118] R2

(j) Constitution of Pakistan---

----Arts. 184(3) 209(5)(b)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Question as to whether the reference was filed with mala fides (malice in fact) due to a the petitioner-judge had authored in the past [Suo Motu Case No. 7 of 2017 (PLD 2019 SC 318)], wherein he had criticized the ruling political party and one of its coalition partners, and against which said two parties had filed a review petition containing certain adverse remarks against the petitioner---Reasons for quashing the Presidential reference recorded.

Recourse to a review petition was a lawful remedy granted to litigants by the Constitution itself. Reference in question was based on the ownership of petitioners wifes undeclared foreign properties. With the blemish attached to the ownership of undeclared foreign properties, such ownership automatically attracted speculation about its status and source. Recourse to a lawful remedy under Article 209(5) of the Constitution could not be malicious unless for ill motives an information alleged wrong or distorted or exaggerated facts, or sought relief that was inordinate or extraneous to the undisputed facts. Furthermore, the observations in the [Suo Motu Case No. 7 of 2017 (PLD 2019 SC 318)], given by the petitioner-judge paled in comparison to the remarks passed by the Supreme Court in another Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig (PLD 2013 SC 1) in which far stronger observations about the countrys politicians and political system failed to draw any adverse reaction from the Federal Government against any Judge. Consequently, no malice in fact was made out on such ground. Constitutional petitions were disposed of. [pp. 112, 113] J2, K2 L2

(k) Constitution of Pakistan---

----Arts. 184(3) 209(5)(b)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Reference based on information provided by a journalist---Plea of petitioner-judge that said journalist had a reputation of planting false stories---Question as to whether the reference had been filed against the petitioner-judge with mala fides (malice in fact)---Reasons for quashing the Presidential reference recorded.

When an information against a person (whether a public office holder or a private person) was to be evaluated, it was the substance, veracity and consequence of the information which mattered and not the credibility and credentials of the informant. Receipt of information from any source was cognizable by the Supreme Judicial Council under Article 209(5) of the Constitution and was sufficient to sustain an inquiry against a Judge of the Superior Courts. Word any used in Article 209(5) of the Constitution meant that the antecedents of the informant were irrelevant unless the information was false, concocted, distorted, exaggerated or sought relief that was excessive in relation to the accepted facts. In the present case the underlying information in the reference to the extent of ownership of the foreign properties by the petitioners wife and children was not disputed by the petitioner. In such circumstances the background of the informant became insignificant. As a result, the plea of malice in fact raised by the petitioner was repelled. [pp. 113, 114] M2 N2

Pakistan Tobacco Company Ltd v. Federation of Pakistan 1999 SCMR 382 ref.

(l) Constitution of Pakistan---

----Arts. 184(3) 209(5)(b)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Confidentiality of a reference---Scope---Details of the reference leaked to the media---Plea of petitioner-judge that the government and its functionaries were behind such leaks---Whether mala fides of Government functionaries in leaking details of the reference---Reasons for quashing the Presidential reference recorded.

Reference filed against a Superior Court Judge had to be kept confidential. To hold any particular person/authority accountable for revealing the details of a reference, there needed to be at least some material on record that connected the leaks to one or more of such persons/authorities. From the chronology of events and case record of the present case it was not evident as to which event triggered the sudden disclosure of the reference. Although the allegation made against the respondents (Government and its functionaries) in the present case raised suspicion, it was still unsupported by any evidence. Consequently it could not suffice to conclusively hold that either one or more of the respondents leaked the reference to the media. On the basis of speculations and suspicions it could not be determined 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 could be recorded. [pp. 114, 115, 116] O2, P2 Q2

Justice Shaukat Aziz Siddiqui and others v. Federation of Pakistan PLD 2018 SC 538 ref.

(m) Constitution of Pakistan---

----Arts. 4, 90, 184(3) 209(5)(b)---Rules of Business, 1973, R. 2(1)(ii)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Assets Recovery Unit, constitution of---Legality---Question as to whether the constitution of the Assets Recovery Unit, which coordinated the collection of evidence against the petitioner-judge was lawful---Reasons for quashing the Presidential reference recorded.

To determine the legality of Assets Recovery Units creation, one had to consider whether the requisite legal actions and procedures for its establishment had been adopted by the person(s) competent and authorised to do so under the law. [p. 120] S2

The Assets Recovery Unit (ARU) was a coordinating agency which brought under one umbrella the competent statutory authorities to stem the menace of tax evasion, money laundering and corruption in the country. Accordingly, the ARU was essentially executing the policy of the State to curb financial crimes in the country. It was therefore an executive office, in particular an Attached Department of the Cabinet Division, performing executive functions. Having such status, it did not need the backing of an Act to grant validity to its creation and actions as required by Article 4 of the Constitution. [p. 121] T2

Perusal of Rule 2(1)(ii) of the Rules of Business, 1973 made it clear that for any Attached Department to exist and function, it needed to have a direct relation with a Division and had to be declared by the Federal Government as an Attached Department. The material on record showed 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, was the Summary for the Cabinet dated 11-09-2018, followed by a Notification dated 19-09-2018. Said two documents proved 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 established that the Cabinet with the Prime Minister as its head was the Federal Government. Consequently, it became 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 Rules of Business, 1973 for the constitution of ARU as an Attached Department had been satisfied in the present case. [pp. 121, 122] U2 V2

The ARU did not act directly but instead operated through its members who had been borrowed from various statutory bodies of the country including the Federal Investigation Agency (FIA); the National Accountability Bureau (NAB); the Federal Board of Revenue (FBR); and the State Bank of Pakistan (SBP). As a result, the ARU was manned primarily with individuals whose powers and jurisdiction were exercised under a statutory regime. Accordingly, the ARU was 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 could not be accused of adversely affecting the rights of any citizen without the backing of law. This was made clear by the composition of the ARU and its terms of reference (TORs) which were also set out in a Notification dated 06-11-2018. Clause 3 of the said TORs confirmed that when it came to dealing with the assets of citizens of Pakistan, the ARU was only authorised to act through its designated officer/member from the relevant department/ agency. Since these designated officers/members were simultaneously serving in statutory agencies, they were vested not only with the powers granted by the relevant statute governing their agency but were also bound by the procedural safeguards and obligations laid down in such a statute. As a result, any action attributed to the ARU in relation to the assets of citizens of Pakistan was taken through competent authorities strictly in accordance with the law. There was no defect in the creation of the Assets Recovery Unit. [pp. 122, 124] W2 X2

(n) Notification---

----Non-publication of notification in Gazette---Effect---In ordinary circumstances, the non-publication of a Notification in the Gazette did not affect its validity except for in limited situations such as when a statute made publication in the Gazette mandatory or where the rights and liabilities of other persons were involved. [p. 125] Y2

Saghir Ahmed v. Province of Punjab PLD 2004 SC 261 and Bahadur Khan v. Federation of Pakistan 2017 SCMR 2066 ref.

(o) Constitution of Pakistan---

----Arts. 184(3), 199(b)(ii), 209(5)(b) 260---Rules of Business, 1973, R. 4(6) Sched. V-A, Sr. No. 1A ---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Special Assistant to Prime Minister (SAPM) on Accountability appointed as Chairman of an Assets Recovery Unit (ARU), which received information about the foreign properties in the name of the petitioner-judges wife---Question as to whether the appointment of SAPM on Accountability was lawful---Reasons for quashing the Presidential reference recorded.

Rule 4(6) and serial number 1A of Schedule V-A of the Rules of Business, 1973 gave the Prime Minister the power to appoint a Special Assistant with such status and functions as he desired. Office of Special Assistant to the Prime Minister (SAPM) was mentioned in Article 260 of the Constitution as one of the posts that was excluded from the definition of Service of Pakistan. Therefore, at present the post of an SAPM was a political appointment. Accordingly, the said appointment was made in the discretion of the Prime Minister and was not regulated by statute. Court would interfere in such appointment if the Prime Minister exercised his discretionary power arbitrarily, unlawfully or in a fanciful manner, or if the appointment of a person as SAPM suffered from cronyism, nepotism or political favour. In such a situation the appointment would be struck down under Article 199(b)(ii) of the Constitution. As a result, there was a judicial check on the exercise of the Prime Ministers discretion. Nonetheless, such relief could not be claimed in collateral proceedings. [p. 126] Z2 A3

Muhammad Adil Chattha v. Federation of Pakistan (Constitution Petition No. 63 of 2018) and Qazi Hussain Ahmad v. General Pervez Musharraf PLD 2002 SC 853 ref.

In the present case petitioner had neither challenged the appointment of SAPM on Accountability in separate proceedings under Article 199(b)(ii) of the Constitution nor had he placed any material on record which disqualified the incumbent SAPM on Accountability from being appointed to such office. Therefore, without proof of illegal or arbitrary exercise of discretion by the Prime Minister, the Court could not interfere with his decision on this matter. Accordingly, there was no unlawfulness in the appointment of the SAPM on Accountability. [p. 127] B3

(p) Constitution of Pakistan---

----Arts. 14(1), 184(3) 209(5)(b)---Right to privacy---Scope---Surveillance---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Tax and property records of the petitioner-judge and his family were accessed/searched to frame the reference against the petitioner---Question as to whether such searches were a breach of the petitioners and his familys right to privacy enshrined in Art. 14(1) of the Constitution and thus amounted to covert surveillance---Reasons for quashing the Presidential reference recorded.

Surveillance primarily involved the monitoring or recording of a persons movements, conversations or other activities and communication. However, in the present case the petitioner-judge had not produced any evidence which demonstrated that either the petitioner or his family had been monitored or their communications had been intercepted. Only proof which the petitioner referred to was the admission by the respondents that the tax and property records of the petitioner and his family had been accessed from Government and public records. Indeed, there was no allegation that any information was obtained from the petitioners personal or private records. [p. 128] C3

Guarantee under Article 14(1) of the Constitution was for the privacy of home and that too subject to law. Such privacy did not extend to the tax and property records of either the petitioner or his family members. [p. 135] J3

Mohatarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 distinguished.

(q) Constitution of Pakistan---

----Art. 260---Service of Pakistan---Scope---Office of Judge of the Superior Court---Such office fell within the category of Service of Pakistan. [p. 130] D4

Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig PLD 2013 SC 1 ref.

(r) Public servant---

----Person holding judicial office---Such person was a public servant. [p. 131] E3

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 ref.

(s) Public office---

----Public servant, office of---Main ingredients.

Following are the five main ingredients present in the office of a public servant:

(i) The office was a trust conferred for a public purpose;

(ii) The functions of the office were conferred by law;

(iii) The office involved the exercise of a portion of the sovereign functions of Government whether that be executive, legislative or judicial;

(iv) The term and tenure of the office were determined by law; and

(v) Remuneration was paid from public funds. [p. 132] F3

(t) Constitution of Pakistan---

----Art. 176---Public servant---Scope---Judges of the Supreme Court were public servants. [p. 132] G3

(u) Constitution of Pakistan---

----Arts. 184(3) 209(5)(b)---Income Tax Ordinance (XLIX of 2001), S. 216(3)(p)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Tax records of the petitioner-judge and his family disclosed by Federal Board of Revenue to the Assets Recovery Unit of the government---Question as to whether such disclosure was lawful, and whether the exception under S.216(3)(p) of the Income Tax Ordinance, 2001 applied to the petitioner-judge and his wife---Reasons for quashing the Presidential reference recorded.

Section 216(1) of the Income Tax Ordinance, 2001 (the 2001 Ordinance) declared the tax records of taxpayers to be confidential. However, the same section also contained the exceptions to this general rule. For purposes of present case, the exception found in section 216(3)(p) of the 2001 Ordinance provided that disclosure of tax records was not precluded where the same may be required by any officer or department of the Federal Government or of a Provincial Government for the purpose of investigation into the conduct and affairs of any public servant. Judge of the Supreme Court was a public servant for the purposes of section 216(3)(p) of the 2001 Ordinance. In relation to the Judge of a Superior Court, an investigation into his conduct and affairs could only mean an investigation for the purposes of Article 209 of the Constitution. However, it was critical (for the exception in section 216(3)(p) to be attracted) that the investigation was duly sanctioned and was being carried out in accordance with law at the time that the clause was invoked. If this was not so then clause (p) of section 216(3) could have no application and the information could not be disclosed. In the present case there was no proper investigation for the purposes of Article 209 when the Assets Recovery Unit (ARU) of the government sought the tax information of the petitioner from the Federal Board of Revenue (FBR). Consequently, the exception in section 216(3)(p) of the 2001 Ordinance was not applicable to the facts of the present case. [p. 132] G3 H3

As far as the petitioners wife, the language of section 216(3)(p) of the 2001 Ordinance suggested that it was not limited only to information relating to the public servant. However, since the jurisdictional prerequisites for carrying out an investigation against the petitioner did not exist, it therefore followed 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 section 216(3)(p) of the 2001 Ordinance. As a result, the disclosure by the FBR was contrary to law. Presidential reference against the petitioner was quashed and in consequence thereof the proceedings pending in the Supreme Judicial Council against the petitioner-judge, including the show-cause notice issued to him, stood abated. [pp. 133, 169, 170] I3, O4 P4

(v) Constitution of Pakistan---

----Art. 209(5)---Reference sent by the President to the Supreme Judicial Council against a Judge of the Superior Court---Standard of proof and care required for a Presidential reference stated.

Article 209(5) of the Constitution only required the President to form an opinion that a Superior Court Judge may have been guilty of misconduct. He did not need to be certain that a Judge was 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 had been observed in the preparation of the reference. Therefore, for the President to even form a prima facie opinion about a Judges guilt, the President needed to verify that there had been compliance with the settled rules on authorisation; he needed to obtain proper advice on the contents of the reference from competent persons; and he needed to ascertain that there was sufficient material before him which satisfied the high thresholds of care and proof expected in the preparation of a reference. [p. 136] K3

Complaint against a Superior Court Judge could be generated in one of three ways: a Presidential reference, a private complaint and the exercise of suo motu jurisdiction by Supreme Judicial Council. Since all three methods were distinct, therefore, the quality of their information/ complaint would also be different. Presidential reference was articulated on a different level compared to a private complaint. When the President, as the Head of State, sent a reference against a Judge, he had at his disposal State agencies and access to competent legal advice. He could utilise these to verify that valid authorization for investigation had been granted and that materials that were relevant and reliable were available to support the reference. However, stating that despite all the machinery of the Federal Government at his command, the President was only required/obliged to send a perfunctory reference which contained legal and factual defects, then nothing would be more harmful to the independence of the judiciary. Such a relaxation would 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 was demonstrated, the Supreme Judicial Council would itself find substance in the reference. Therefore, to protect and defend the independence of the judiciary, a reference sent by the President must contain authorised, serious, considered and verified information in both respects, legal and factual, in order to possess the gravity that should accompany a Presidential action. [p. 137] L3 M3

(w) Constitution of Pakistan---

----Arts. 48, 90, 184(3) 209(5)(b)---Rules of Business, R. 15-A, Sched. V-B, Entry No. 35---Procedure for filing a Presidential reference before the Supreme Judicial Council---Scope---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Federal Law Minister providing authorization for investigation conducted prior to the filing of the reference---Whether such authorization was unlawful and could only be provided by the President at his discretion---Reasons for quashing the Presidential reference recorded.

President could not authorise an investigation against a Judge in his own discretion. Sending of a reference was an executive act performed by the Federal Government. To declare that the President was 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. [p. 143] N3 O3

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 Prime Minister or the Cabinet under Article 48(1) of the Constitution and not invoke his discretionary power under Article 48(2). [p. 143] P3

Entire process of a Presidential reference fell under the advice of the Prime Minister according to the Rules of Business, 1973. It was he (i.e. the Prime Minister) who had to advise the President on the steps that needed to be taken in a matter that bore relation to Article 209(5) of the Constitution. As a result, the approval by the President of the advice of the Prime Minister was necessary for commencing an investigation into a complaint made against a Judge of the Superior Court. Initial authorisation by the President on the advice of the Prime Minister to commence an investigation against a Judge in a complaint falling under Article 209(5) was a legal requirement for sustaining the validity of a Presidential reference that was ultimately filed with the Supreme Judicial Council. Such oversight by the highest Constitutional functionaries protected Judges from whimsical and arbitrary interference by Executive authorities in their personal judicial independence and privacy. Without valid authorisation the foundation of the reference suffered from an initial illegality which amounted to a Constitutional violation. Consequently, such an infirmity was fatal to the superstructure that was erected on it. In the present case with regard to the reference there was no such authorisation on record for commencing an investigation against the petitioner-judge. Instead the record showed 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 such behalf. The competent authorities, namely, the Prime Minister and the President were never approached by the Ministry of Law for the requisite authorization. As a result the present reference was defective and illegal. Presidential reference against the petitioner was quashed and in consequence thereof the proceedings pending in the Supreme Judicial Council against the petitioner-judge, including the show-cause notice issued to him, stood abated. [pp. 145, 146, 168, 169, 170] R3, S3, T3, J4, O4 P4

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

(x) Constitution of Pakistan---

----Arts. 99(2) 99(3)---Rules of Business, 1973---Said Rules were constitutionally mandated rules and must be followed by the Government in carrying out its functions. [p. 144] Q3

Messrs Mustafa Impex, Karachi v. The Government of Pakistan PLD 2016 SC 808 ref.

(y) Constitution of Pakistan---

----Arts. 4, 10A, 184(3) 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 116(1)(b) 116(2)---Foreign Exchange Regulation Act (VII of 1947) S. 5---Anti-Money Laundering Act (VII of 2010), Ss. 2(q), 2(s) 3 Sched., section XIIA---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Allegations in the reference, validity of---Whether there was any substance in the allegations contained within the reference---Reasons for quashing the Presidential reference recorded.

Counsel for the Government did not make any submissions on the petitioners alleged violation of the provisions of Foreign Exchange Regulation Act, 1947. In fact, he did not even nominate the relevant provisions of the said law. There was also no material, before the Court, which supported the said bald allegation of a violation of the claimed foreign exchange regime under Foreign Exchange Regulation Act, 1947. Allegation of violating the provisions of the said Act was unsubstantiated assumption neither backed by evidence nor supported by the relevant provision that was allegedly breached. As such, it could not be sustained. [pp. 149, 169] U3, V3 M4

Next allegation levelled against the petitioner was that of money laundering. The primary legislation governing said subject matter was the Anti-Money Laundering Act, 2010 (the 2010 Act). Reading of sections 2 and 3 of the 2010 Act provided that a necessary element of the offence of money laundering was the commission of a predicate offence. The execution of this offence gave birth to the proceeds of crime, the movement of which attracted the criminal conduct of money laundering. Therefore, without the commission of a predicate offence there could be no offence of money laundering. In the present case, the main allegation against the petitioner was that he had failed to declare the foreign properties owned by his wife and children in his wealth statements. The contents of a wealth statement were provided in Section 116(1) of the Income Tax Ordinance, 2001 (the 2001 Ordinance). In order to attract the offence of money laundering the non-declaration of assets under Section 116 of the 2001 Ordinance must constitute a predicate offence. Only then may the allegation of money laundering be made against the petitioner. Perusal of section XIIA of Schedule to the 2010 Act revealed that the non-declaration of assets by a taxpayer under the 2001 Ordinance was not a predicate offence under 2010 Act. The reference had not alleged the commission of any specific predicate offence under the 2010 Act by any person. Therefore, prima facie no case of money laundering could be made out against the petitioner on such count. [pp. 150, 169] W3 L4

Equally, it was relevant to note that the four sections of the 2001 Ordinance were only inserted in the Schedule to the 2010 Act as predicate offences on 20-05-2016 whereas the foreign properties were purchased by the petitioners family in 2011 and 2013. Consequently, it was an established fact that before 2016, violations of the 2001 Ordinance could not form the basis of a money laundering allegation. [p. 151] X3

There was no allegation or material on record suggesting that the petitioner or his wife transferred money to the foreign country via illegal means/methods. [p. 152] Y3

Primary allegation in the reference against the petitioner was his failure to disclose the foreign properties of his wife and children in his wealth statement. In the reference it was alleged that this obligation was imposed on the petitioner by virtue of Section 116(1)(b) of the 2001 Ordinance. No notice was ever issued to the petitioner or his wife under section 116(1). Petitioners wife did receive notices for the years 2015, 2017 and 2018 but those were issued under section 114(4) of the 2001 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 2001 Ordinance rested on the opinion of an Assistant Commissioner (Inland Revenue) who stated that the petitioner was liable to disclose the foreign properties of his wife and children. Such opinion and that of the respondent-Government was based on a literal reading of section 116(1)(b). Such interpretation of the section 116(1)(b) had never been tested judicially before. Indeed, counsel for the Government 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).On an examination of the (several) instructions published by Federal Board of Revenue (FBR) for completing a wealth statement in tax years subsequent to 2013, it could be noticed that the FBR was itself unsure about the true interpretation of section 116(1)(b) of the Ordinance. Amongst all of the varying constructions of section 116(1)(b), there was also the overriding difficulty that the language of section 116(1)(b) was open to more than one interpretation. [pp. 154, 155, 156, 168] A4, B4, C4 K4

Neither the Government nor the petitioner produced any case-law or other relevant material to support their respective interpretations of Section 116(1)(b). Even the FBRs own instructions on completing a wealth statement form were unclear and had wavered from year to year. Accordingly, the respondents decision to charge the petitioner with a violation of section 116 of the 2001 Ordinance on the basis of an interpretation that was devoid of judicial consideration let alone approval, and which lacked any definitive and consistent departmental practice was conjectural. In such a situation, it would be better if this matter was determined in the first instance by the hierarchy of specialised fora specified in the 2001 Ordinance. [p. 157] D4

To establish the source of funds for the acquisition of the foreign properties, the requirements of due process under Article 4 and Article 10A of the Constitution mandated that the first person concerned, namely, petitioners wife ought to be given an opportunity through sending a notice to explain her sources of funding for the foreign properties and the reasons for not declaring such properties in her wealth statement. Without granting such opportunity/notice, the framing of the reference against the petitioner was premature, hypothetical, and impulsive. Presidential reference against the petitioner was quashed and in consequence thereof the proceedings pending in the Supreme Judicial Council against the petitioner-judge, including the show-cause notice issued to him, stood abated. [pp. 159, 169, 170] E4, O4 P4

(z) Interpretation of statutes---

----Special laws---Scope---When a special law regulated a particular subject area then another law enacted for a different special purpose could not affect the subject matter governed by the former special law---Statutes which were not pari materia could not govern each others interpretation. [p. 152] Z3

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299 and Halsburys Laws of England (Volume 96, 2018) ref.

(aa) Constitution of Pakistan---

----Arts. 48(1), 184(3) 209(5)(b)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---President to form an opinion in terms of Art. 209(5) of the Constitution before sending the reference to the Supreme Judicial Council---Meaning and scope---Whether the President could seek advise from those involved in investigating or framing the reference---Reasons for quashing the Presidential reference recorded.

Sub-Article (5) of Article 209 of the Constitution provided that before directing the Supreme Judicial Council (the Council) 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 needed to form his opinion was not readily discernible from Article 209(5) of the Constitution. Although it was not for the Court to specify a list of persons from whom legal advice may be sought by the President, however, there were certain persons who should not be approached by the President for legal advice on a reference under Article 209 of the Constitution. Fairness and objectivity dictated that those involved in the investigation and framing of the reference may brief the President but could not advise him on whether it was maintainable and appropriate for inquiry by the Council. This was because there was a clear conflict of interest for the architects of the reference to opine on the weaknesses of their work. But this was precisely what happened in the present reference. The President discussed the reference and its legal aspects with the Attorney General and the Law Minister. As senior functionaries of the Federal Government, both said persons 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 was expected to be considered, fair and objective. Presidents power clearly granted him the jurisdiction to evaluate the worth of the advice tendered to him. If he was so inclined he may require the same to be reconsidered once by the Prime Minister. In order to be objective and fair the President should rely upon counsel and legal experts not linked with the framing of the reference or working for the Federal Government. Presidents opinion in the present reference was influenced by the inadmissible advice of individuals who were involved in the preparation of the reference. In these circumstances, it could not be said that the President formed an informed opinion in terms of Article 209(5) of the Constitution, therefore, the reference against the petitioner was defective. Presidential reference against the petitioner was quashed and in consequence thereof the proceedings pending in the Supreme Judicial Council against the petitioner-judge, including the show-cause notice issued to him, stood abated. Constitutional petitions were disposed of.

[pp. 161, 163, 169, 170] F4, G4, N4, O4 P4

Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166 ref.

(bb) Constitution of Pakistan---

----Arts. 48(1) 209(5)---Rules of Business, 1973, Sched. V-B---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council---Advice of Prime Minister received by the President---Scope---In the filing of a reference the President was bound to act on the advice of the Prime Minister and not the Cabinet---If the reference was substantive, cogent, coherent, rational and lawful, then the President simply had to record his assent, and there was no additional obligation on him to set out his separate reasons---However, if the reference was defective factually and/or legally then the President must state his reasons for disagreement and call for reconsideration of the matter by the Prime Minister in the light of those reasons---If the President subsequently disagreed even with the reconsidered advice, then he was bound by Art. 48(1) to endorse the said advice leaving it for the Supreme Judicial Council to analyse the merits of the reference sent by the President. [p. 167] H3

(cc) Constitution of Pakistan---

----Art. 209(5)---Presidential reference sent to the Supreme Judicial Council against a Judge of the Superior Court---Pre-requisites---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 Prime Minister and the President were the documents which contained these reasons---Said documents contained the crux of the reference against a Superior Court Judge, therefore they needed to be factually and legally complete---Failure to comply with such requirement would render the reference unsustainable. [p. 168] I4

(dd) Constitution of Pakistan---

----Arts. 184(3) 209(5)(b)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Supreme Court unanimously quashed the reference and declared that the same was of no legal effect whatsoever, and in consequence thereof the proceedings pending in the Supreme Judicial Council (Council) against the petitioner-judge, including the show-cause notice issued to him, stood abated---Supreme Court (with a majority of 7 to 3) gave directions to the Commissioner, Inland Revenue and Federal Board of Revenue to inquire into and seek explanation from the spouse and children of the petitioner as to the nature and source of the funds whereby the three subject properties in a foreign country were acquired in their names, and also send a report in such regard to the Supreme Judicial Council, which had the powers if it considered justified, to commence proceedings against the petitioner in exercise of its suo motu jurisdiction---Reasons for referring the matter to the Federal Board of Revenue notwithstanding the quashing of the Presidential reference.

[Note: The directions can be found in the short order of the present reported as (Mr.) Justice Qazi Faez Isa and

14 others v. The President of Pakistan and others (PLD 2020 SC 346), headnote (b)]

Notwithstanding the quashing of the Presidential reference against the petitioner-judge, the decision to direct the Federal Board of Revenue (FBR) to commence tax proceedings against the petitioners wife and children was primarily based on two grounds: to establish that Judges of the Superior Court were answerable for allegations casting aspersions not only on their personal integrity but also on the integrity of the institution; and to honour the petitioners plea that his wife and children, who were independent taxpayers, should first be asked about their source of funds for the acquisition of the foreign properties. [pp. 170, 172] Q4 T4

The illegalities in the present reference were a result of its careless and casual preparation. These errors or defects did not erase petitioners wifes ownership of the foreign properties, the primary fact which formed the basis of the reference and which was not denied by the petitioner. Whilst the ownership of the foreign properties was not disputed, the source of funds for their purchase and the mode by which these funds were transferred abroad required explanation. Otherwise, an unexplained investment by the spouse of a Judge of the Superior Courts, who was a holder of public office, compromised the integrity of the Judge and ultimately the probity and credibility of the institution which he served. 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 the Supreme Court, the fair, impartial and transparent route was to allow petitioners wife and her children to disclose the source of their funds to the relevant authorities, namely, the FBR. Such a transparent course of action was consistent with the Code of Conduct for Judges of the Supreme Court and High Courts, the maintenance of institutional integrity and the image of Judges as the neutral and independent arbiters of law and justice. [p. 171] R4

By referring the issue of source of funding to the FBR for verification from petitioners wife and his children, the Supreme Court had chosen the path which in the first place should have been taken by the Government and its functionaries but which was casually ignored by them. By sending the matter to the FBR the Court had assured the substantive and procedural rights of each party under the Income Tax Ordinance, 2001. These rights and the right of the petitioners family to appeal against adverse orders had specifically been preserved. Additionally, it was directed that only appropriate proceedings for undeclared or unexplained assets be initiated against the petitioners family which should be concluded within a reasonable timeline. Therefore, by such referral to the FBR the controversy surrounding the allegation in the reference would be settled. [p. 172] S4 U4

Supreme Court had also directed the Chairman FBR to submit his report, regarding the proceedings before the Commissioner (Inland Revenue), to the Supreme Judicial Council (the Council) for its consideration. This was done to give the Council a chance, if it so wished, to commence proceedings against the petitioner in exercise of its suo motu jurisdiction. However, the direction issued to the Chairman FBR in no way obliged the Council to take any action based on the report. The Council may do so of its own volition if it considered that the report justified any action against the petitioner. Consequently, the Chairman FBRs report was a piece of information to be evaluated by the Council in its suo motu jurisdiction. The Council 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. [pp. 172, 173] V4 W4

Per Faisal Arab, J; agreeing with the majority view regarding quashing of Presidential reference against the judge and the directions given to the Federal Board of Revenue for initiating proceedings against the judges wife and children, but giving his own views on the interpretation of Article 48 of the Constitution, section 116(1)(b) of Income Tax Ordinance, 2001 and on the plea of mala fide raised by the petitioner.

(ee) Constitution of Pakistan---

----Art. 209(5)---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council (the Council)---Information against the judge---President and the Council had to judge whether such information was credible before initiating an inquiry---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.

Use of the words from any source appearing in Article 209(5) of the Constitution allowed information to come from a member of the general public or a government functionary or that which was based on a finding of fact of a judicial forum. No specific route from which information was to come had 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 had also ensured that receipt of any and every information per se should not trigger inquiry against a Judge and only such information was to become actionable on which either the Supreme Judicial Council (the Council) or the President had formed the opinion that the matter needed to be inquired into. The informant had no right to seek that the President or the Council must conduct inquiry on the information that had been placed by him before any of them. The Constitution had left such decision in its entirety in the hands of the Council and the President. Until either of them considered any information to be convincing enough to call for an inquiry only then the Council could embark upon the inquiry otherwise not. [p. 178] X4

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 Council would also be perpetually engaged in conducting inquiries upon whatever information was placed before them by any informant, crippling them from performing their normal judicial function. Apprehending such drawback, the Constitution had given primacy to the opinion that was formed on the information by either of the two opinion-makers (i.e. the President and the Council) described in Article 209 (5) of the Constitution. It was for this reason that when the Constitution admitted information from any source, it basically said that let there be search for the truth if in the opinion of any of the two opinion makers there was substance in the information regardless of the source. There was no independence of judiciary if there was no effective mechanism for its accountability. [p. 178] Y4

(ff) Constitution of Pakistan---

----Art. 209(5)---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council (the Council)---Report submitted by the Council to the President---Discretion of President to accept or reject the report---Scope.

Once a matter was referred by the President to the Supreme Judicial Council (the Council) to conduct an inquiry then it became a constitutional obligation of the Council to first conduct the inquiry and then submit its report to the President. Once that was done and in its report the Council returned its findings of guilt or otherwise, it was 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 used the word may, which clothed the President with such discretion. Where the Council exonerated a judge of the charges framed against him, in that eventuality the matter ended there. The exoneration brought the whole proceedings to an end which no more remained open to challenge, not even by the President by seeking judicial review before the Supreme Court [p. 179] Z4

(gg) Constitution of Pakistan---

----Arts. 184(3), 209(5) 211 ---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council (the Council)---Bar of jurisdiction under Article 211 of the Constitution---Scope and purpose.

The Supreme Court on its judicial side could not examine the merits of the allegations contained in a reference on account of the constitutional bar contained in Article 211 of the Constitution, which though appeared 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 (the 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 the Supreme Court on the merits of the controversy gained currency, every Judge against whom the Council was to conduct inquiry would first come to the Supreme Court and seek examination of the credibility of the informant as well as of the merits of the information. If the Supreme 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 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 the Supreme Court. Invasion of this Constitutional power by 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 had been taken in terms of Article 209(5) of the Constitution, the allegations made against a sitting Judge could only be proved or disproved before the Council and not before a court through a judicial pronouncement. Any judicial interference that amounted to stifling the very function which the Constitution had assigned exclusively to the Council would be violative of Article 211 of the Constitution. [p. 179] A5

(hh) Civil Procedure Code (V of 1908)---

----O. VI, R. 2---Pleadings---Scope---Pleadings were 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 emerged from such facts need not be stated in the pleadings in order to seek the relief---Failure to state the legal effects, therefore, could not 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. [p. 181] B5

Budho v. Ghulam Shah PLD 1963 SC 553 ref.

(ii) Income Tax Ordinance (XLIX of 2001)---

----Ss. 116(1)(b)---Public office holder/tax payer---Wealth statement---Assets and liabilities of the tax payers spouse, minor children, and other dependents, declaration of---Perusal of S.116(1)(b) of the Income Tax Ordinance, 2001 revealed that the wealth in the names of the taxpayers spouse or minor children had to be declared on account of mere existence of such relationship with the taxpayer---Dependency of such relations on the taxpayers was not a condition precedent---Scope and purpose of S.116(1)(b) of the Income Tax Ordinance, 2001. [Minority view]

Apart from detecting tax evasions on undeclared incomes, the declarations made under section 116 of the Income Tax Ordinance, 2001 (the 2001 Ordinance) could also be used by a forum that was 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) became a relevant fact in order to prove a fact in issue which was possessing assets beyond means. So, the utility of the declaration made under section 116 was not restricted to detecting probable tax evasion only but it could 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 came to examining the conduct of a public office holder. [p. 182] C5

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 stood. Unless it was so demonstrated, non-disclosure was likely to cast doubts on his or her integrity and honesty and could 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 2001 Ordinance by itself was not a fact in issue but only a relevant fact which could be used to seek explanation with regard to source of acquisition of undeclared assets that stood either in the name of the public office holder or his spouse or children or any other person dependent upon him. No claim of privacy or privilege could justify withholding of financial disclosure that was relevant in such accountability process. Thus, the declaration of assets and liabilities made under section 116(1)(b) could be used as a relevant fact before both the forums i.e. income tax authorities and the forum that was empowered to take disciplinary action against a holder of public office, as the object and purpose of both the forums was distinct. [p. 183] D5

Declaration under section 116(1)(b) of the 2001 Ordinance had nothing to do with the spouses financial dependency or otherwise on the resident taxpayer. Income tax law was not concerned with whether the spouse of a resident taxpayer was dependent or was a person of means. All that it intended was that no tax evasion took place by hiding ones undeclared source of income in the names of taxpayers loved ones. Husband and wife were both presumptive heirs of each other. Any property in the name of any of them was also inheritable by their children. Hence, wealth in the name of taxpayers spouse, irrespective of his or her own means of income, had to be declared on account of mere existence of such relationship with the taxpayer. If dependency of spouse of a public office holder was 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 was financially well off and was living as a member of the taxpayers household and a property in his or her name remained undeclared and when such a fact got disclosed, the public office holder in order to avoid disciplinary proceedings would take the plea that his or her spouse was a person of means and not dependent on him or her, therefore, information about the source of acquisition of undeclared asset was not required to be divulged by him or her under section 116 of the 2001 Ordinance. [p. 184] E5 F5

What section 116(1) (b) intended to mean was that the wealth in the names of the taxpayers spouse or minor children had to be declared on account of mere existence of such relationship with the taxpayer. The dependency of such relations on the taxpayers was not a condition precedent. A resident taxpayer even in an action taken under the 2001 Ordinance, could not take the stand that unless his or her spouse was shown to be dependent on him or her, there was no legal obligation to declare the assets that stood in their names under section 116(1)(b) of the 2001 Ordinance. [p. 185] G5

(jj) Constitution of Pakistan---

----Arts. 184(3) 209(5)(b)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Plea of mala fides raised by the petitioner---Question as to whether the reference against the petitioner could be quashed by the Supreme Court on grounds of mala fides based on the reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61 ref.)---Reasons for quashing the Presidential reference recorded. [Minority view]

As regards plea of mala fide, only on one occasion in the past the Supreme Court interfered with the proceedings of the Supreme Judicial Council (the Council). This happened in the case of Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 Supreme Court 61). Even in that case the merits of allegations made in the Presidential reference against the then Chief Justice of the Supreme Court were not made basis for nullifying the proceedings but the Supreme 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. Presidential reference was not quashed by the Supreme Court on the basis of the allegations contained therein but because the Chief Justices removal from his office was on account of his refusal to give assurance to the then President that his candidature in (military) uniform in the said elections would not be judicially invalidated. Hence, the unholy haste in first seeking resignation of the then Chief Justice under coercion followed by his mistreatment and forcible removal from office and then sudden convening of the meeting of the Supreme Judicial Council (the 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 the Council. That was the background that led to the quashment of the reference against the then Chief Justice by the Supreme Court. However in the present case the petitioner-judge had not alleged mala fide against the President but had raised such a plea only against the informant and the persons who processed the information forming basis of the reference. The present case was thus not even remotely close to what treatment was meted out to the then Chief Justice. [pp. 186, 187] H5 I5

(kk) Constitution of Pakistan---

----Arts. 48(1), 48(2), 184(3) 209(5)---Presidential reference before the Supreme Judicial Council---Scope---Discretion and independent opinion of the President---Scope---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Whether the President was bound to act on advice of the Prime Minister in terms of Art. 48(1) of the Constitution---Reasons for quashing the Presidential reference recorded. [Minority view]

From the contents of Article 209 (5) of the Constitution, it became clear that in forming his opinion the President was not dependent on the advice of the Prime Minister or the Cabinet. He could form opinion on any information that may have come to him from any other source. This was so as the Judiciary was separate and distinct from the Executive branch of the Government. It had to remain completely separate and uninfluenced by any decision of the Executive in the running of its affairs. So while examining the power of the President to call for inquiry under Clause (5) of Article 209 of the Constitution, it clearly indicated that the President had to act in his own discretion to which he was entitled to by virtue of Article 48(2) of the Constitution. All that the executive could do was to place information which it considered actionable before the President and then it was 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 could not 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. [p. 188] J5 K5

In the present case the contents of the summary prepared for the Prime Minister in respect of reference against the petitioner showed 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 and placed before the President. 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. 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 became 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 Presidents own independent opinion. The Reference not being based on Presidents own 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. [p. 189] L5

(ll) Constitution of Pakistan---

----Art. 209(5)---Reference before the Supreme Judicial Council against a judge of the Superior Courts---Information provided to the President or the Supreme Judicial Council by an informant---Credibility and motivation of the informant---Jurisdiction of the Supreme Judicial Council did not depend upon what motivated the informant to place the information on the desk of one of the two opinion makers (i.e the President or the Supreme Judicial Council) who found it to be credible enough to call for an inquiry---Function of the Supreme Judicial Council was to search for the credibility of the information rather than the credibility or motivation of the informant. [p. 191] M5 O5

(mm) Constitution of Pakistan---

----Art. 209(5)---Reference before the Supreme Judicial Council against a judge of the Superior Courts---Filing of the Reference becoming public news---Such news becoming public would not be enough to vitiate the proceedings before the Supreme Judicial Council. [p. 191] N5

Per Yahya Afridi, J; agreeing with the majority view to the extent of quashing of the Presidential reference against the judge but finding the Constitutional petition filed by the judge under Article 184(3) of the Constitution as not maintainable, and also disagreeing with the majority view regarding directions given to the Federal Board of Revenue for initiating proceedings against the judges wife and children, and for submitting a report of said proceedings to the Supreme Judicial Council. [Minority view]

(nn) Constitution of Pakistan---

----Arts. 184(3) 188---Original jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Order passed by the Supreme Court under Art. 184(3) of the Constitution was final and not appealable---Only medium of challenge available to a person aggrieved of such an order was the limited jurisdiction of the Supreme Court under review. [p. 193] P5

(oo) Constitution of Pakistan---

----Art. 184(3)---Original jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Pre-requisites -- Matter of public importance---Meaning and scope---Matter of public importance encompassed any issue affecting the legal rights or liabilities of the public or the community at large, and it was not restricted to an individual or a group of individuals, how so large the group might be. [p. 194] Q5

Anwar Aziz v. Federation of Pakistan PLD 2001 SC 49; Abdul Wahab v. HBL 2013 SCMR 1383; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and 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 SC 642 ref.

(pp) Constitution of Pakistan---

----Art. 184(3)---Original jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Pre-requisites---Matter of public importance---Scope---Independence of judiciary---Independence of the judiciary with all its legal, social and political implications was a matter of public importance. [p. 195] R5

Asad Ali v. Federation of Pakistan PLD 1998 SC 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 ref.

(qq) Constitution of Pakistan---

----Arts. 178, 184(3), 209(5)(b) Third Sched.---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209 (8) of the Constitution), Arts. II, III, V, VI Preamble---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Maintainability---Whether present petition was maintainable, and whether it involved the enforcement of a Fundamental Right of the petitioner---Reasons for finding present Constitutional petition as not maintainable recorded. [Minority view]

Petitioner was a Judge of the Supreme Court and had assumed the office by taking an oath under the Constitution. The oath declared, inter alia, that the judge would abide by the Code of Conduct for Judges of the Supreme Court and High Courts [framed by the Supreme Judicial Council under Article 209 (8) of the Constitution] (the Code). On taking an oath, a Judge accepted 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 commanded him to avoid an act, the sitting Judge was 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 took an oath under the Constitution, he by his conduct subjected 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. Consequently, the fundamental rights of a sitting Judge shall remain eclipsed, so far as their enforcement was not in consonance with the terms of his oath. [p. 196] S5 T5

The Code demanded a Judge to be cautious and forbearing; to keep his conduct in all things, official and private, free from impropriety; to avoid publicity and not engage in public controversy; 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. [p. 197] U5

The subject matter of the present litigation, in pith and substance, revolved around allegations of impropriety. That being so, seeking to enforce the fundamental rights to challenge the very charges against him to be ultra vires, and that too without withstanding the prescribed enquiry would negate the very spirit of the oath taken by the petitioner-judge. [p. 198] V5

Present petition was not maintainable. It starkly lacked 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. Moreso, when the positive exercise of the said jurisdiction by the Supreme 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 present petition being bereft of essential constitutional requirements was non-maintainable, and thus, must fail. [p. 198] W5

(rr) Constitution of Pakistan---

----Arts. 10-A, 178, 184(3), 209(5)(b) Preamble---Presidential reference against a judge of the Supreme Court pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the judges tax returns---Constitutional petitions filed by different Bar Councils, Bar Associations and lawyers (the petitioners) before the Supreme Court calling into question the constitutionality and legality of the reference against the judge---Maintainability---Whether the petitions were maintainable---Reasons for finding the present petitions as maintainable recorded.

In essence, present petitions sought the enforcement of the fundamental rights i.e. access to justice and a fair and independent judiciary. These issues were matters of public importance.

For seeking matters of public importance relating to the enforcement of fundamental rights in the original constitutional jurisdiction of the Supreme Court, the general petitioner need not be an aggrieved person in the strict sense. And more importantly, the present petitioners, unlike a sitting Judge of the superior court, were not shackled by any legal restrain of a constitutional oath to invoke the original constitutional jurisdiction of the Supreme Court. Resultantly, the present petitioners fulfilled the two mandated condition precedents to invoke the constitutional court of the Supreme Court under Article 184(3) of the Constitution. Present petitions were held to be maintainable. [p. 199] X5

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 PLC (C.S.) 984; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Pakistan Muslim League (N) through Khawaja Muhammad Asif v. Federation of Pakistan PLD 2007 SC 642 ref.

(ss) Constitution of Pakistan---

----Arts. 48(1), 48(2), 184(3) 209(5)---Presidential reference before the Supreme Judicial Council---Discretion and independent opinion of the President---Scope---Presidential reference against a judge of the Supreme Court pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the judges tax returns---Constitutional petitions filed by different Bar Councils, Bar Associations and lawyers before the Supreme Court calling into question the constitutionality and legality of the reference against the judge---Whether the President was bound to act on advice of the Prime Minister in regard to the reference in terms of Art. 48(1) of the Constitution---Reasons for quashing the Presidential reference recorded. [Minority view]

Constitutional mandate of the President under Article 209(5) of the Constitution was to form an opinion, whether misconduct was made out against the Judge, and if so, then a reference was to be sent for an enquiry to the Supreme Judicial Council (the Council). This decision or for that matter, the opinion was to be based on the information received from any source. The advice of the Prime Minister when received by the President, would only be an information received from a source, and thus lost its efficacy as an advice, within the contemplation of clause (1) of Article 48 of the Constitution. In such circumstances, the advice of the 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 President would have to apply his independent mind on the matter and then act accordingly. [p. 202] A6

In the present case based on the complaint of a journalist, a summary was prepared and then moved by the Ministry of Law, and finally placed before the President, with the advice of the Prime Minister. The President signed and approved the summary with his handwritten note in terms that reflected, firstly, that the advice of the Prime Minister was unconditionally approved by the President; secondly, the approval so made by the President was without his independent application of mind on the information contained in the summary regarding the alleged misconduct against the judge; and finally, that, there was no formulation of an opinion by the President regarding the sufficiency of the information to constitute misconduct against the judge to file a reference. [pp. 200, 201] Y5 Z5

The decision-making process leading to the President sending a reference to the Council under Article 209(5) deserved careful and thorough deliberation by the President. Given the facts relating to the opinion formed by the President in the present case, it demonstrated grossly negligent attitude lacking any application of mind. Instead of applying his independent mind to the seriously important matter placed before him, the President blindly accepted and followed the advice of the Prime Minister to send the reference to the Council. The formation of the opinion by the President was muddied by the blatant and uncalled for obedience to the advice of the Prime Minister. [p. 203] B6

The President had 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 President was 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 Presidential reference against the judge stood abated. [p. 203] C6

(tt) Constitution of Pakistan---

----Arts. 48(1), 48(2), 184(3) 209(5)---Presidential reference before the Supreme Judicial Council---Information against the judge obtained and disclosed unlawfully---Effect---Information, obtained and disclosed unlawfully, if admitted would fall within the mischief of information from any source---Thus, it would remain the discretion of the Supreme Judicial Council to decide whether based on the admitted information, it would suo motu proceed against a sitting Judge or otherwise. [p. 205] D6

(uu) Constitution of Pakistan---

----Arts. 14(1), 184(3) 209(5)(b)---Right to privacy---Scope---Surveillance---Presidential reference against a judge of the Supreme Court pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the judges tax returns---Constitutional petitions filed by different Bar Councils, Bar Associations and lawyers (the petitioners) before the Supreme Court calling into question the constitutionality and legality of the reference against the judge---Tax and property records of the judge and his family were accessed/ searched to frame the reference against him---Whether such searches amounted to unlawful surveillance---Reasons for quashing the Presidential reference recorded.

Had the information regarding the foreign properties owned by the family members of the judge not been freely and legally accessible, then it would have sufficed to establish the allegation of obtaining the said information through surveillance. The counsel for the Government was able to demonstrate that the information regarding any property in the foreign country (United Kingdom), including the one owned by the family members of the judge could be retrieved or accessed through internet searches. And further, placing on record, a copy of the title of the said foreign properties, pre-dating the complaint against the judge, and that too, from the relevant and competent authority under the laws of the foreign country (United Kingdom) confirmed that the requisite search under the laws of the foreign country (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. [p. 205] E6

(vv) Constitution of Pakistan---

----Arts. 184(3) 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 198, 199 216(3)(p)---Presidential reference against a judge of the Supreme Court pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the judges tax returns---Constitutional petition filed by different Bar Councils, Bar Associations and lawyers before the Supreme Court calling into question the constitutionality and legality of the reference against the judge---Law Minister directed the Chairman, Assets Recovery Unit (ARU), to seek verification of the ownership of the foreign properties from the income tax returns of the judge or his wife---Accordingly Chairman ARU sought confidential information of the judge and his wife from the Federal Board of Revenue (FBR) of particulars of the income tax returns filed and maintained under Income Tax Ordinance, 2001 (the 2001 Ordinance)---Said information was disclosed by the Chairman FBR to Chairman ARU; 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 Presidential reference---Question as to whether disclosure of such confidential information was lawful, and whether the exception under S.216(3)(p) of the Income Tax Ordinance, 2001 applied to the judge and his wife---Reasons for quashing the Presidential reference recorded.

Income Tax Ordinance, 2001(the 2001 Ordinance) expressly provided for confidentiality of information recorded in the income tax returns of an assessee. The income tax officials, who were the custodian of the said information, were commanded under the law to jealously guard the same, and in case of any breach thereof, the offender was to face penal consequences under the Ordinance. However, this confidentiality of information would in no way prevent the competent income tax officials to seek from the assessee, the source of funds for the acquisition of any assets. In case, the competent income tax official was not satisfied with the explanation for the source of funds, he could departmentally proceed against the assessee for non-declaration and misdeclaration of assets under the enabling provisions of the 2001 Ordinance. [pp. 206, 207] F6 G6

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 rested solely with the Supreme Judicial Council, and none other. Even otherwise, the information relating to income tax returns of the judges wife would not fall within the scope of the purported enquiry of a public servant envisaged under section 216(3)(p) of the 2001 Ordinance. The particulars of the wifes income tax returns would remain immune from such permissible disclosures and thus retain its confidentiality. The legal position would have been otherwise, had the wife consented to allow such disclosure, which she did not or had the competent tax authorities initiated proceedings against her under the 2001 Ordinance, which they never did. [p. 209] I6

In the present case, once the income tax officials had information regarding the alleged undeclared assets of the judges wife, they despite having ample authority to legally proceed against her under the 2001 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, had exposed themselves to penal prosecution for commission of offences under section 198 read with section 199 and section 216 (1) of the Ordinance. The direction of the Law Minister and the Chairman ARU to solicit, obtain and receive, confidential information regarding the income tax returns of the judge and his wife, prima facia, exposed them to criminal prosecution for having committed an offence under section 199 read with sections 198 and 216(1) of the 2001 Ordinance. Similarly, the fact that the then Chairman FBR and the income tax officials having not refused the illegal directions of the Law Minister and Chairman ARU, and passing on confidential information to them, prima facie, exposed them not only to departmental action but also to penal consequences under section 198 read with section 216(1) of the 2001 Ordinance. Accordingly, the present Chairman, FBR should ensure that the entire record of the present case was placed before the FBR to proceed under the law, against the Law Minister, the Chairman ARU, the then Chairman, FBR 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 the judge and his wife. [Minority view] [pp. 207, 210] H6 L6

Since the entire process leading to the filing of the Presidential reference was in violation of the law and the Constitution, the sending of the same to the Supreme Judicial Council lacked legal sanction and was without lawful authority, and thus ultra vires of the Constitution. Consequently, the proceedings before the Supreme Judicial Council in furtherance of the Presidential reference against the judge stood abated. [p. 211] M6

Any directions by the Supreme Court to the tax authorities with specific time spans and setting the procedure for the income tax officials to proceed against the judges wife, would amount to parallel legislation, when the 2001 Ordinance provided a framework for all such matters. More so, when such directions had been made against a person who was not a party to the present petitions. In the circumstances, any such directions of the Supreme Court would amount to prosecute her, and that too without providing her with an effective opportunity of hearing. [Minority view] [p. 209] J6

(ww) Constitution of Pakistan---

----Art. 248---Constitutional office holders---Illegal acts---Immunity from prosecution----Scope---No protection was extended to holders of constitutional office from prosecution for their illegal acts. [p. 209] K6

Ch. Zahur Ilahis case PLD 1975 SC 383; Aman Ullah Khans case PLD 1990 SC 1092; Nawabzada Muhammad Umar Khans case 1992 SCMR 2450; Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and Justice, Islamabad PLD 2012 SC 870 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 ref.

Per Syed Mansoor Ali Shah, J; agreeing with the majority view to the extent of quashing of the Presidential reference against the judge but with his own views and also disagreeing with the majority view regarding directions given to the Federal Board of Revenue for initiating proceedings against the judges wife and children, and for submitting a report of said proceedings to the Supreme Judicial Council. [Minority view]

(xx) Constitution of Pakistan---

----Arts. 184(3), 209(5) 211---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council (the Council)---Bar of jurisdiction under Art. 211 of the Constitution---Scope and purpose.

A Presidential reference competently filed by the President against a constitutional court judge should not ordinarily be made subject to scrutiny in judicial review by any Constitutional Court including the Supreme Court, unless the extraordinary circumstances demanded such intervention in the interest of justice and fair play. [p. 218] P6

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

The proceedings before the Supreme Judicial Council (the Council), its report to the President and the removal of the judge by the President under Article 209 could not be called in question in any court of law under Article 211 of the Constitution, unless the removal of the judge was without jurisdiction, mala fide or coram non judice. A limited judicial review on said three grounds was not affected by Article 211, as no ouster clause could keep the actions taken without jurisdiction, mala fide or coram non judice, beyond the scrutiny of the constitutional courts. Article 211 of the Constitution gave immunity to proceedings before the Council till the removal of the judge by the President. However, proceedings and steps taken before the matter landed before the Council escape the immunity under Article 211. [p. 217] N6

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

All acts preceding the proceedings before the Council were not hit by the ouster clause of Article 211. They were, therefore, subject to standard judicial review like any other executive or administrative act, on the grounds of substantive illegality, procedural impropriety and decisional irrationality. [p. 218] O6

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

(yy) Constitution of Pakistan---

----Art. 209(5) ---Supreme Judicial Council (the Council)---Complaint against judge of the Superior Courts---Council was the only constitutional forum available to inquire into the conduct or capacity of a constitutional court judge.

Only constitutional forum available to inquire into the conduct or capacity of a constitutional court judge was the Supreme Judicial Council (the Council). So the Government, its Ministries, Divisions, Departments or Attached Departments and their officers were not authorized to entertain any complaint against a constitutional court judge, let alone proceed and collect evidence to supplement the complaint. They could at best return the complaint to the complainant and guide him to approach the constitutional forums under Article 209 of the Constitution. [p. 218] Q6

Where any Ministry, Division, Attached Department or Department of the Government, in the course of its normal business, discovered some adverse information against a constitutional court judge that may attract impeachable misconduct, in addition to the legal proceedings under the relevant law, the concerned Department etc., in such situation, should at first proceed against the constitutional court judge on the basis of the adverse information in accordance with the law under which it functioned. For example, if it was the Federal Board of Revenue (FBR) that discovered such an information, it could proceed against the judge under the tax laws and the judge would have a right to defend himself in accordance with law. Only when these proceedings came to a close after exhausting all the legal and judicial avenues and it was finally held that the judge had violated the law, the FBR may, in the interest of judicial accountability, send this information to the Federal Government through the Division with which it was attached under the Rules of Business, 1973 (ROB) for information and necessary action. It would then finally rest with the Federal Government i.e., the Cabinet, to decide if the violation of law amounted to impeachable misconduct and whether the Federal Government should proceed against the constitutional court judge and place the information before the President. Such process found its justification from the foundational constitutional principles like independence of judiciary, rule of law and parliamentary democracy. [p. 219] R6

(zz) Constitution of Pakistan---

----Arts. 184(3) 209(5)(b)---Rules of Business, 1973, R. 14 ---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Assets Recovery Unit purportedly established vide a Cabinet notification coordinated the collection of evidence against the petitioner-judge---Question as to whether the ARU could have entertained and investigated the complaint against the petitioner-judge---Reasons for quashing the Presidential reference recorded. [Minority view]

The complainant could only have approached the constitutional forums provided under Article 209(5) of the Constitution and could not have filed the complaint before any other office or authority. Therefore, the very act of approaching the Assets Recovery Unit (ARU) was per se unconstitutional and illegal. It was to be noted with concern and suspicion that how did the complainant, a citizen of the country, planned on filing the complaint against a constitutional court judge before the ARU, which had no public interface or the legal mandate to deal with such a matter and had earlier never conducted any inquiry for the accountability of a constitutional court judge. There was surprisingly nothing on the record to show how the complainant found out about ARU. The ARU was not a Ministry or Division of any Ministry of the Federal Government, or an Attached Department, neither was it a statutory authority nor had the notification of its establishment been published in the official gazette for public information. The ARU, therefore, for all practical purposes did not legally exist for the world outside the Prime Ministers Office. However, the complainant instead of approaching the Supreme Judicial Council (the Council), which would have ordinarily come to the mind of a citizen, particularly in view of the publicly known recent removal of a High Court Judge by the President on the recommendation of the Council, approached the ARU for the accountability of judges. This looked more odd especially when the complainant claimed to be a journalist. Such an unusual step by the complainant raised eyebrows about the credibility of the complaint and the bona fide of the complainant. [p. 219] S6

The Chairman, ARU on receiving the complaint from the complainant acted with surprising agility and activated his team to collect evidence of the alleged foreign properties. The ARU, which was to work under the Cabinet Division as per decision of the Cabinet, did not make any formal request to the Law and Justice Division through the Secretary, Cabinet Division for consultation on the matter in accordance with Rule 14 of the Rules of Business, 1973 (the ROB), despite noting in minutes of its meeting held on 15-04-2019 that the matter was sensitive as it related to the Judges of the Superior Judiciary. The informal discussion and consultation made by the Chairman and Members of the ARU with the Law Minister on 16-04-2019, and the oral advice of the Law Minister in that discussion carried no value in the eyes of law. The Law Minister, who was a distinguished constitutional lawyer, also did not realize the importance of his advice, even oral, and gave a go ahead to the ARU for inquiring into the veracity of the allegations made in the complaint against judges of the constitutional courts. The Chairman, ARU who was also a Barrister-at-law, and not a layman, knew well that an oral advice of the Law Minister was nothing in the eyes of law and he should have ascertained his legal authority to inquire into the allegations made against Judges of Constitutional Courts, before initiating the inquiry into the allegations made in the complaint. But both of them paid no heed to the constitutional mandate of Article 209 of the Constitution, and initiated the process of inquiring into the allegations. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 224] Y6

(aaa) Constitution of Pakistan---

----Arts. 82(2), 84, 99(3), 184(3), 209(5)(b) 240(a)---Rules of Business, 1973, Rr. 2(1)(ii), 4(4), 4(5), 16(1)(m) Sched. III---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Assets Recovery Unit purportedly established vide a Cabinet notification coordinated the collection of evidence against the petitioner-judge---Question as to what was the legal and budgetary status of the Assets Recovery Unit and that of its Chairman---Reasons for quashing the Presidential reference recorded. [Minority view]

The Assets Recovery Unit (ARU) was purportedly established by the Cabinet vide notification dated 06-11-2018. The Federation had defended the establishment of the ARU by the Cabinet, by referring to the provisions of Rules 4(5) and 16(1)(m) of the Rules of Business, 1973 (the ROB). The Federation argued that Rule 4(5) empowered the Prime Minister to establish agencies and offices for conducting the business of the Federal Government, and under Rule (16)(1)(m) the Cabinet had power to decide any matter referred to it by the Prime Minister, and that the Prime Minister referred the matter of establishing the ARU to the Cabinet, and the Cabinet thus competently approved the establishment of the ARU. [p. 220] T6

Bare reading of the provisions of Rule 4(5) of the ROB made it clear that the said Rule did not empower the Prime Minister to establish new agencies or offices; it simply authorized him to refer the business of the Government to already established agencies and offices under the law. The word determine had been used in the Rule in the context of allocation or entrustment of the business of Government and not for the power to establish a new agency or office. In the absence of any power to establish a new agency or office, reference of the matter to the Cabinet under Rule 16(1)(m) by the Prime Minister was inconsequential, as the Cabinet also did not enjoy any such power. The scope of the ROB could not extend to creation of agencies or offices to perform functions in relation to any matter to which the executive authority of the Federation extended. Such agencies or offices could be established only by or under some law enacted by the Parliament on the subject over which it had the legislative power under the Constitution. The creation of the ARU by the Cabinet, could not be sustained treating it as an Attached Department of the Cabinet Division also. The Departments that had been declared as Attached Departments to particular Divisions were created by or under the law, and not by the Federal Government. The Federal Government, as per Rules 2(1)(ii) and 4(4) of ROB, could only declare them attached with a particular Division, but could not create them. [p. 220] U6

The Terms of Reference (TORs) of the ARU defined its role and powers. The ARU did not pass as a coordinating agency or office under its TORs for the following reasons: first, as per its notification it was established as an entity separate from the Departments whose officials had been made its Members and also addressed as such in its TORs; second, there was no mention of its coordinating role in the TORs; third, the powers and functions had been prescribed in the TORs as that of the ARU, and not of its Members; and fourth, but most importantly, the ARU was conferred such wide and extensive powers which even its Members did not enjoy under the laws of their parent institutions, e.g., it was empowered to request any intelligence agency under the Government for assistance in obtaining any information on any subject within and outside the country, and authorized to seek assistance and information from law enforcement agencies and other Government departments, including the information relating to bank accounts, companies record, revenue record, travel record, NADRA record etc. With such intrusive investigative powers, the ARU could not be said to be an innocuous coordinating agency, office or unit. The establishment of the ARU was, therefore, absolutely without lawful authority. In the absence of any legal status of the ARU, its Chairman and Members also had no legal position or status. [p. 221] V6

The appointment of the Chairman, ARU by the Cabinet was not backed by any law including any rule of the ROB. Even otherwise, the ROB made under Article 99(3) of the Constitution could not provide for creation of posts in connection with the affairs of the Federation. Such power must be conferred by some law enacted under Article 240(a) of the Constitution. Article 99(3) empowered the Federal Government to make rules only on two subjects: firstly, for the allocation of the business of the Federal Government to its different components, i.e., the Ministries; and secondly, for the transaction of that business. The Rules made under such power could regulate the procedural modalities of allocation and transaction of the business, i.e., by which Ministry or Division of a Ministry and how a matter was to be taken up and dealt with; such Rules could not grant substantive power to create posts in connection with the affairs of the Federation. The expression allocation and transaction of the business did not by any stretch of imagination imply such power. Thus, the appointment of the Chairman, ARU by the Cabinet was without lawful authority. [p. 222] X6

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 ref.

Funds could be allocated for any Government activity only by the National Assembly in the Annual Budget Grants under Article 82(2) of the Constitution or supplementary and excess budget grants under Article 84 of the Constitution. The Annual Budget Statements for the relevant financial years 2018-19 and 2019-20 did not mention the allocation of any budget for the expenditure of ARU. The amounts as approved in the budget passed by the National Assembly could be utilized only for the purpose specified in the budget statement. Any re-appropriation of funds or their utilization for some other purpose was not justified under the Constitution; for this purpose, the supplementary budget statement had to be placed before the National Assembly following the procedure provided in Article 84 of the Constitution. Persons making the unauthorized expenditure from the Federal Consolidated Fund were personally responsible for that expenditure. The ARU, therefore, had no budgetary support and therefore did not pass for an executive authority. In such background, role of the ARU became more suspicious and raised the questions: who funded the investigation and the transnational surveillance of the petitioner judge; who paid for the law expert of the ARU; who paid for collecting information from the land registry of the foreign country and websites, which only provided access to information after payment; and who was funding the entire operation. These unanswered questions cast doubts on the bona fides of the Government and the Prime Minister, who was the Chief Executive of the Federation. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 222] W6

Action Against Distribution of Development Funds PLD 2014 SC 131; Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 and Ram Jawaya v. State of Punjab AIR 1955 SC 549 ref.

(bbb) Constitution of Pakistan---

----Arts. 9, 14(1), 184(3) 209(5)(b)---National Database and Registration Authority Ordinance (VIII of 2000), S. 28---Income Tax Ordinance (XLIX of 2001), S. 216---Government Servants (Conduct) Rules, 1964, R. 18---Investigation for Fair Trial Act (I of 2013), S.35---Right to privacy---Scope---Surveillance---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Property records and information relating to the petitioner-judge and his family were accessed/searched by the Assets Recovery Unit using different sources, including websites, to frame the reference against the petitioner---Question as to whether the information obtained through such searches was breach of the petitioners and his familys right to privacy, dignity and personal liberty enshrined in the Constitution and amounted to covert surveillance---Reasons for quashing the Presidential reference recorded. [Minority view]

Chairman and legal expert of the Assets Recovery Unit (ARU) asserted that the details of those residing in any immovable property in the foreign country (United Kingdom) could be accessed through open source websites; that once the address was located, the owner of that immovable property could be found through open source such as the land registry website. However, it was important to note that said websites were not free or open source websites. To access the information from the websites, an account with username and password needed to be created, payment was to be made by debit/credit card, the website acknowledged the payment of charges by email, and sent the requested information by email. The Federation in defence did not produce any record of the searches made on the said websites: What and how many addresses were found and under whose names? Who created the account? Who made the payment of charges? What were the payment or credit card details? Who received the acknowledgement of payment and the requested information and at whose email address? More importantly, there was no evidence of what information was received that was allegedly used for searching on the land registry website. A paid source, which required registration and payment before allowing access to information, was not an open source as claimed by the Federation. It showed that no such search was conducted for tracing the properties through those websites; rather the details of the properties were gathered through covert surveillance of the petitioner judge and his family. Covert surveillance and interception were offensively intrusive investigative tools only available to intelligence agencies in the country. [p. 227] Z6

The omission of the Federation and of the Chairman and legal expert, ARU to produce the website record as to procuring the address of the foreign properties of the spouse and children of the petitioner judge gave rise to a presumption that the legal expert, ARU never searched the addresses of the properties through the website. Even otherwise, the Chairman and legal expert, ARU in their concise statement made a general statement that an immovable property could be located through open source websites, but they did not make any specific and categorical statement therein that the foreign properties of the family of the petitioner judge were located by that method. [p. 227] A7

Surveillance was permitted in the limited area of anti-state or terrorist activities and that too under judicial and executive oversight. Outside such limited area, surveillance was constitutionally prohibited. Intelligence agencies did not enjoy a free hand in conducting surveillance but are subject to strict rules of compliance and oversight by the court. The fact that the ARU did not possess the resources or the technical capacity to carry out surveillance of the petitioner and his family and the interception of their communications, gave credence to the stance of the petitioner that the surveillance was carried out in connivance and in collaboration with the intelligence agencies. The possibility of such happening, therefore, could not be ruled out in the absence of any other evidence furnished by ARU or the Law Minister. It was but obvious that in the present case the information about the addresses of properties were obtained through no other means but through covert surveillance and interception of the intelligence agencies which gathered the information from the private zone of privacy enjoyed by the petitioner judge and his family, without any authorization of law and by trampling over the constitutional guarantees of privacy, personal freedom and dignity. The issue of unlawful surveillance and invasion of privacy of the petitioner judge and his family was far more critical and graver than the information procured by the ARU. It was a naked threat to personal liberty, privacy and dignity guaranteed to the citizens under the Constitution. [pp. 228, 230, 233] B7, E7 J7

Employees of National Database and Registration Authority (NADRA), who were legally enjoined under section 28 of the National Database and Registration Authority Ordinance, 2000 not to communicate to any person any information acquired by them in the course of their employment, committed violation of that command of the law by making compliance with the command of the Chairman, ARU in communicating to the Chairman and other Members of the ARU the NADRA record relating to the petitioner and his family. Likewise, Member of the ARU from Federal Board of Revenue (FBR) committed violation of section 216 of the Income Tax Ordinance, 2001 by disclosing the tax records of the petitioner and his spouse to the Chairman and other Members of the ARU. While Member of the ARU from the Federal Investigation Agency (FIA) breached Rule 18 of the Government Servants (Conduct) Rules, 1964 by making unauthorized communication of the official documents and information as to the passport/visa record and travelling history of the petitioner and his family. The Chairman and Legal Expert, ARU procured the information regarding the foreign properties by offending the fundamental rights of personal liberty, privacy and dignity of the petitioner and his family by procuring personal information regarding the foreign properties without the sanction of any law through covert surveillance and interception, and also by violating the confidentiality provisions of the National Database and Registration Authority Ordinance, 2000 and the Income Tax Ordinance, 2001. These actions of the Chairman and legal expert of ARU also attracted criminal liability under section 35 of Investigation for Fair Trial Act, 2013. For these illegal actions, the authorities concerned must initiate criminal and disciplinary proceedings against the Chairman, legal expert and Members of the ARU, as well as, the defaulting officials of FBR and NADRA under their respective laws. [pp. 236, 237, 240] M7, N7, O7 R8

The admission and reliance on the material (evidence) illegally collected by the ARU without any enabling law empowering it to do so, in flagrant violation of the fundamental rights of the petitioner and his family was inadmissible, therefore, the Law Minister and Prime Minister could not have relied and acted upon it, for making the summary and advising the President. [pp. 240, 241] R7 S7

The complainant journalist also appeared before the Court but did not explain his source of information regarding the foreign properties belonging to the petitioners family. The complainant appeared to be a proxy, who could not have discovered the addresses of the foreign properties. After putting together, the facts relating to the information given by the complainant it was easy to discern that the complainant was fed the information to generate the complaint. Whoever fed him the information were the real actors of the present case. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 229] C7 D7

(ccc) Constitution of Pakistan---

----Arts. 9, 14(1) 25---Right to privacy---Scope---Illegal surveillance by State agencies, impact of---Privacy affirmed the agency and autonomy of the individual and the right of every person to have the freedom and liberty to live a life of dignity---Privacy required that all information about a person was fundamentally his own, only for him to communicate or retain for himself---Privacy attached to the person and not to the place where it was associated---Intrusion by the State into the sanctum of personal space, other than for a larger public purpose, was violative of the constitutional guarantees---Right to privacy was deeply intertwined with the right to life, right to personal liberty and right to dignity---Illegal and illegitimate surveillance, by both State and private actors, had the impact of intrusion into the private lives of citizens, not only violating their constitutional rights but also intruding on the very personhood, privacy and personal liberty of those surveilled---Surveillance had disparate impact, violating principles of non-discrimination and equality as enshrined in the Constitution---Illegally procured private information amassed by the agencies could be used to manipulate and blackmail people for promoting political agendas; this crippled human security and dismantled democracy, lowering it slowly into an abyss of totalitarianism---Concept of privacy and social impact of illegal surveillance explained.

[pp. 230, 231, 232, 235] F7, G7, H7, I7 K7

Michael C. James, A Comparative Analysis of the Right to Privacy in the United States, Canada and Europe, Connecticut Journal of International Law, p.261, Vol. 29, Issue 2, (Spring 2014); John Stuart Mill, On Liberty, Batoche Books, p.13, (1859); [5 Coke 91: 1 Sm LC (13th Edn.) 104 at p. 105]; Warren and Brandeis, The Right to Privacy, Harvard Law Review, p. 193, (1890), Vol. 4, No. 5; 277 U.S.438, 478 (1928); Lawrence Lessig, Code and Other Laws of Cyberspace, p.153-55 (1999); Artavia Murillo ET AL. (In Vitro Fertilization) v. Costa Rica (2012), Inter-Am. Ct. H.R. (Ser.C) No.257; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 and Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000) ref.

(ddd) Constitution of Pakistan---

----Arts. 9 14(1)---Right to personal liberty and privacy---Scope---Duty of State institutions/authorities with respect to personal information of citizens.

Rights to personal liberty and privacy under Articles 9 and 14 of the Constitution imposed a constitutional obligation on State authorities to protect the privacy and personal freedom of the citizens unless the law expressly authorized them to do otherwise in exceptional circumstances. In the absence of any law to the contrary, the rights to privacy and personal freedom became absolute and stood to protect the privacy and personal freedom of the citizen. No Government institution was to disclose the personal information of any citizen unless the law authorized the institution to do so. In the absence of any specific law, the umbrella of constitutional guarantees would come to cover and protect the citizen. [p. 236] L7

(eee) Qanun-e-Shahadat (10 of 1984)---

----Preamble---Constitution of Pakistan, Art. 14(1)---Illegally collected evidence, admissibility of---Principles regarding the admission or exclusion of evidence obtained in violation of the constitutional rights. [Minority view]

The Irish Supreme Court in the case DPP v. JC [2015] IESC 31 laid down the following principles with regard to the admission or exclusion of the evidence obtained in violation of the constitutional rights, in order to balance the legitimate competing public interests: (i) The onus was on the prosecution to establish the admissibility of all evidence; (ii) If a claim was raised that evidence was obtained in breach of constitutional rights, the onus was on the prosecution to establish either that there was no unconstitutionality, or that despite any interference with constitutional rights the evidence should still be admitted; (iii) Where evidence was obtained in deliberate and conscious violation of constitutional rights, it should be excluded except in exceptional circumstances; (iv) Where evidence was taken in breach of constitutional rights, there was a presumption in favour of exclusion, which could be rebutted by evidence that the breach of rights was either inadvertent or derived from subsequent legal developments; and (v) Whether or not a breach of constitutional rights was deliberate and conscious required analysis of the conduct or state of mind of the individual who actually gathered the evidence, as well as, any senior official or officials within the investigating or enforcement authority concerned who was involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence-gathering of the type concerned. [p. 239] P7

Neil M. Richards, The Dangers of Surveillance, Harvard Law Review, p.1935, Vol.126, (2013); [2006] 2 AC 221; [1970] HCA 21; [1978] HCA 22; 116 U.S. 616 (1886); 367 US 643 (1961) and [2015] IESC 31 ref.

Above stated principles as to inadmissibility of the illegally collected evidence had developed mostly in the cases where there was a law that regulated a constitutional right, but that law was not followed or was violated in the process of collecting evidence. The courts have held such evidence to be generally inadmissible, with few exceptions, mainly with the reason that the admission of such evidence would compromise the integrity of the judicial process and bring the administration of justice into disrepute. There was no hindrance in adopting the said principles in our jurisdiction. [p. 240] Q7

(fff) Constitution of Pakistan---

----Arts. 48(1), 48(2), 184(3) 209(5)---Rules of Business, Sched. V-B, Entry No. 35---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Prime Minister placing information/advice before the President with regard to misconduct of a judge---Independent opinion of the President---Scope---Entry 35 in Sched. V-B to the Rules of Business, 1973---Ultra vires the Constitution---Whether under Art. 209(5) of the Constitution, the President was to form his personal opinion or to act on the advice of the Cabinet or the Prime Minister as envisaged under Article 48(1) of the Constitution---Reasons for quashing the Presidential reference recorded. [Minority view]

The President was to examine the information placed before him under Article 209(5) as Head of State, acting as an arbiter between the two branches of the State, discharging his function as a person representing the unity of the Republic. Personal opinion of the President under Article 209(5) actualized the non-partisan role of the President and provided a check on any partisan adventurism by the Government of the day against the judiciary. If the President was just a rubber stamp acting on the advice of the Cabinet, a hostile Government could, theoretically, file references against a number of judges of the constitutional courts, resulting in initiation of inquiries against all of them. The information placed before the President under Article 209(5) was to be processed into a reference only if the President formed an opinion that the information made out a case for inquiry against the judge. [p. 244] T7 U7

While the Constitution vested the President with the power to form an opinion, it was difficult to imagine that this power was to be exercised by him in a mindless and mechanical manner, thus reducing him to just a rubber-stamp, who upon receiving information was to simply direct the Council to inquire into the conduct of a constitutional court judge. [p. 245] V7

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61, paras 107 and 196 ref.

Entry 35 in Schedule V-B to the Rules of Business, 1973 that provided that President was to act on advice of the Prime Minister for making a reference to the Supreme Judicial Council under Article 209(5) of the Constitution was, therefore, ultra vires the Constitution. [p. 246] W7

In the present case, the President did not apply his mind and form his own opinion on the information received; he simply approved the advice of the Prime Minister and signed the draft Reference submitted with that advice. The formation of opinion and the direction to the Supreme Judicial Council to hold an inquiry was, therefore, not that of the President; both these acts were made without jurisdiction and were coram non judice, and thus unconstitutional and of no legal effect. [p. 246] X7

(ggg) Constitution of Pakistan---

----Arts.184(3) 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 111, 114, 116(1)(b), 116A 120(3)---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns (wealth statement)---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Whether petitioner-judge was obliged under S.116(1)(b) of the Income Tax Ordinance, 2001 to declare the assets and liabilities of his spouse and children in his wealth statement---Reasons for quashing the Presidential reference recorded. [Minority view]

Section 116(1), of the Income Tax Ordinance, 2001 (the 2001 Ordinance) simply provided for issuance of notice to a taxpayer for filing the wealth tax statement or wealth reconciliation statement along with the income tax return and provided for particulars to be included in such a statement. In case a taxpayer had already filed the said statements along with his return, section 116(1) appeared to have no relevance. It was not the case of the Federation that the petitioner failed to file the wealth tax statement or wealth reconciliation statement. In case the said statements were deficient or incorrect, the tax department could issue notice to the taxpayer under section 120(3) and consider the case in the light of Section 111 of the 2001 Ordinance. No such notice or proceedings were initiated by the Federal Board of Revenue (FBR) against the petitioner. Directly leveling allegation of violation of section 116(1)(b) against the petitioner in such background was misconceived besides being premature. [p. 247] Y7

One foreign property was purchased by the spouse of the petitioner in the year 2004, before his elevation to the Bench of the High Court in 2009; this property was therefore completely irrelevant for forming opinion of misconduct and making the reference against the petitioner. The other two foreign properties were acquired by the spouse and children of the petitioner in the year 2013, after his said elevation; they were, therefore, to be declared in the tax year 2013 by the petitioner if there was any legal obligation on him, at that time, to do so. The children of the petitioner were not minors in the year 2013; therefore, no question as to his obligation to declare their assets arose under section 116(1)(b). The current dispute related to his alleged obligation to declare the assets of his spouse only. Therefore, the question was whether the petitioner was under any legal obligation to declare the foreign assets of his spouse in his wealth statement along with his tax returns filed in the tax year 2013. The simple and straightforward answer as per FBRs own interpretation that was in vogue in 2013 was that he was not. The FBR, in the wealth statement form prescribed for the tax year 2013, required a taxpayer to declare the assets of his or her spouse if he or she had not filed income-tax return and wealth statement independently. It was an admitted fact that the spouse of the petitioner had filed her income-tax return and wealth statement independently, in the year 2013. It, therefore, appeared that there was no legal obligation on the petitioner to declare the assets of his spouse in his wealth statement as per the requirement of the FBR prevailing in the year 2013. [pp. 248, 249] Z7 B8

PLD 2017 SC 265 ref.

The FBRs second interpretation expressed in the form prescribed for the tax year 2015 was that a taxpayer was required to declare only those assets of his or her spouse which had been acquired by funds provided by that taxpayer. There was neither any allegation in, nor was any material annexed with, the summary initiated for forming the opinion of misconduct against the petitioner that the funds for purchase of the foreign assets were provided by the petitioner to his spouse. No opinion of misconduct against the petitioner, thus, could have been made on the basis of these two departmental interpretations of the provisions of section 116(1)(b) of the 2001 Ordinance. [p. 248] A8

In terms of the scheme envisaged in the 2001 Ordinance, once an asset was claimed by a person to have been sourced by him or her and, more so, such asset was also declared in the statutory declaration/wealth statement by that person, then only that person could be questioned and required to explain the source of acquiring such asset by the tax authorities. In the event that person failed to properly explain the source, an addition could be made in his or her income and that added income was taxed accordingly. Under no circumstances, any other person could be made directly or indirectly part of such proceedings. Thus, no opinion of misconduct against the petitioner could have been formed on the basis of even such interpretation of the provisions of section 116(1)(b) of the 2001 Ordinance. [p. 250] C8

Another interpretation of section 116(1) of the 2001 Ordinance suggested by the Federation was that every individual resident taxpayer was to mention the assets of his or her spouse in the wealth statement irrespective of the fact that the latter was or was not his or her dependent. Section 114 of the 2001 Ordinance required that the tax return for any tax year had to be accompanied by the wealth statement required under section 116. In case a wealth statement was not filed or was deficient, the income tax return filed was not considered complete. In case of any deficiency, the Commissioner, FBR was empowered to issue a notice to the taxpayer under section 120(3), informing the deficiency and providing him time to rectify it. If it was cured during the given time, the tax return was considered complete and accepted. Therefore, if the Commissioner, FBR had been of the view, as per the interpretation suggested by the Federation, that the petitioner was under legal obligation to declare the assets acquired by his spouse in the year 2013, in his wealth statement filed with tax return of 2013, he should have issued notice to the petitioner specifying the defect and providing him time to rectify it. The petitioner, in that case, could have defended that notice on all legal grounds available to him including the interpretation proposed by him as well as the interpretations put to the provisions of section 116(1)(b) by the FBR itself in the forms prescribed for wealth statement. No such notice, however, was issued to the petitioner. [p. 250] D8

It was also important to highlight that Section 116A of the 2001 Ordinance which required a resident individual taxpayer to furnish statement of foreign assets, was inserted in the 2001 Ordinance in the year 2018 by the Finance Act, 2018. This amendment made in the year 2018 prima facie showed that there was earlier no obligation on a resident individual taxpayer to furnish such statement of even his own foreign assets, much less the foreign assets of his spouse and children. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 251] E8

(hhh)Constitution of Pakistan---

----Arts. 12, 184(3) 209(5)(b)---Anti-Money Laundering Act (VII of 2010), Sched., section XIIA---Income Tax Ordinance (XLIX of 2001), Ss. 192, 192A, 194 199---Foreign Exchange Regulation Act (VII of 1947) Ss. 4 5---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Whether the petitioner violated any provisions of Anti-Money Laundering Act, 2010 or the Foreign Exchange Regulation Act, 1947---Reasons for quashing the Presidential reference recorded. [Minority view]

The Federation argued that being a case of concealed income, the case against the petitioner-judge also fell under the Anti-Money Laundering Act, 2019 (AMLA) by referring to sections 192, 192A, 194 and 199 of Income Tax Ordinance, 2001 (the 2001 Ordinance) mentioned in in section XIIA of the Schedule to the AMLA. The said sections in the Schedule of AMLA were inserted vide Notification No. SRO 425(I)/2016 dated 14-05-2016 through which offences under sections 192, 192A, 194 and 199 of the 2001 Ordinance were listed as predicate offences for the purposes of invocation of the AMLA. In the present case, admittedly all three foreign properties were acquired prior to 14-05-2016; therefore, the AMLA was not applicable at all. Furthermore, principle of prohibiting retrospective punishment was a guaranteed fundamental right under Article 12 of the Constitution. Even otherwise, it was clear that the Legislature had put a precondition that tax sought to be evaded is ten million rupees or more in all the four said sections of 2001 Ordinance mentioned in AMLA. Thus, for the invocation of the AMLA the law presupposed conclusion of proceedings under the relevant provisions of the 2001 Ordinance to determine the said threshold and that too in relation to tax liability for the period on or after 14-05-2016. No such determination had taken place in the present case; hence, there was no application of the AMLA. [p. 251] F8

The Foreign Exchange Regulation Act, 1947 (FERA) provided for regulation of payments and dealings in foreign exchange and securities, and the import and export of currency and bullion. Sections 4 and 5 of the FERA provided that no one could deal in foreign exchange except through an authorized dealer and imposed restrictions on transfer of money outside Pakistan. There was no evidence on the record that established or even prima facie showed any violation of the FERA against the petitioner. The Federation pointed out no violation of the FERA, even during the arguments. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 252] G8

(iii) Constitution of Pakistan---

----Arts. 209(5)(b) 209(8)---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209 (8) of the Constitution), Preamble---Reference against a judge of the Superior Court on grounds of misconduct---Impeachable misconduct---Meaning. [Minority view]

Impeachable misconduct was when there was a violation of law or violation of the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209(8) of the Constitution) [the Code] that was so grave that it ruptured judicial integrity, tarnished public confidence and pulled down legitimacy of the judicial institution. Short of this, it might be misconduct but not impeachable misconduct. It was commonsensical that not every infraction led to removal of a constitutional court judge or constituted impeachable misconduct. The best test was to see if the judicial integrity of a judge had been undermined resulting in lowering the public confidence and trust in the judiciary, thus impairing impartiality and legitimacy of the judicial institution. [p. 254] H8

(jjj) Constitution of Pakistan---

----Art. 209(8)---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209(8) of the Constitution), Preamble---Standards under the said Code extended to the judge and judge alone---Said Code had no jurisdiction over or concern with the family, relatives and friends of the judge---Judge could not be made vicariously liable for the conduct of his family. [Minority view]

Judicial integrity and the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209(8) of the Constitution) [the Code] were judge specific, largely covering judicial conduct and partly his personal behavior. The standards under the Code extended to the judge and judge alone. The Code had no jurisdiction over or concern with the family, relatives and friends of the judge. [p. 254] I8

The Code was a judge specific document and did not extend to family members and in no event, held a judge vicariously responsible for the conduct of his family - his spouse and children - who were independent, natural and legal persons in their own right and could do whatever they wanted. Conduct and misconduct were personal to a judge under the Code. Like any other citizen, a judge could not be held accountable for the conduct of someone else, there was no such thing as vicarious responsibility of a judge, unless the law required it or there was evidence that the wrongdoings of the judge had been concealed behind the family facade. [p. 255] J8

Judges were not to be taken as supporting or endorsing their spouses or partners conduct if they did not publicly dissociate themselves from it. The law should recognize that they were independent actors and that the deeds of one were not to be visited on the other. [p. 255] K8

Hearing on the Report of the Chief Justice of Gibraltar, [2009] UKPC 43. (4-3 minority view) ref.

(kkk) Constitution of Pakistan---

----Arts. 184(3), 204(2)(b) 209(5)(b)---Supreme Judicial Council Procedure of Enquiry 2005, R. 13---Contempt of Court Ordinance (V of 2003), Ss. 3 4---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Confidentiality of the reference---Details of proceedings of the reference publicized by the President and reported by the media---Proceedings by the President were to kept confidential---Reasons for quashing the Presidential reference recorded. [Minority view]

Paragraph 13 of the Supreme Judicial Council Procedure of Enquiry 2005 provided for the proceedings of the Supreme Judicial Council (the Council) to be conducted in camera and also banned reporting the proceedings of the Council. There was an absolute restriction of confidentiality on the process of preliminary assessment of the allegations made against a constitutional court judge. Such restriction equally applied to publicizing the reference filed by the President and the allegations made therein. In the context of publicizing, proceedings of preliminary assessment of information conducted by the President was similar and equal to proceedings by the Supreme Judicial Council (the Council). Therefore, if the proceedings were to be conducted by the Council in camera, then so should be the proceedings by the President. [pp. 255, 256] L8 M8

Under Article 204(2)(b) of the Constitution, the constitutional courts had power to punish any person who scandalized the Court or otherwise did anything which tended to bring the Court or a Judge of the Court into hatred, ridicule or contempt. Publicizing a complaint or reference and the allegations made therein, of which veracity was yet to be determined after inquiry by the Council, definitely tended to bring the Judge into hatred, ridicule and contempt, and thus attracted the provisions of Article 204 of the Constitution and the Contempt of Court Ordinance, 2003. In the present case, it was a matter of record that the reference was publicized even when it had not yet been placed before the Council for preliminary consideration, as the filing of the reference and the allegations made therein against the petitioner was published in several newspapers and later during the proceedings before the Council the matter was discussed in press conferences and TV talk shows by the Government Ministers and even by the President. The act of publicizing the filing of the reference against the petitioner and of the allegations made therein, was clearly unconstitutional and fell within the scope of the provisions of Article 204 of the Constitution and the Contempt of Court Ordinance, 2003. The fact as to who leaked and publicised the matter was disputed and could not be resolved in the present proceedings, but the matter could not be left unnoticed and allowed to go unchecked. Such omission would encourage repetition of the mischief in future. Thus, the present matter was to be left to the discretion of the Chief Justice who was pater familias of the judiciary and was to protect its prestige, honour, reputation and integrity, to initiate appropriate proceedings for a thorough inquiry of the matter so that the right to fair trial of the persons involved in publicizing the reference and the allegations made therein, may not be infringed.

[pp. 256, 257, 263] N8, O8 S8

(lll) Mala fides---

----Types of mala fides---Mala fide of law and mala fide of fact---Distinction.

Mala fide of law was constituted when a person inflicted an injury upon another person in flagrant contravention of the law; he was not allowed to say that he did so with an innocent mind. He was taken to know the law and act within the law. He may, therefore, be guilty of mala fide of law, although so far as the state of mind was concerned, he acted ignorantly and in that sense innocently. Thus, action of an authority was tainted with mala fide of law when it took the action which was so unreasonable, improbable or blatantly illegal that it ceased to be an action contemplated by the law under which it was purportedly taken, or took the action by violating the mandatory procedural requirements or without satisfying the jurisdictional requirements, or took the action which no reasonable person could have taken on the basis of the available material. On the other hand, an unlawful action done designedly, willfully or wantonly and not accidently, thoughtlessly or negligently fell within the domain of mala fide of fact. In such case, the action was taken in bad faith either to hurt the person against whom the action was taken or to benefit oneself or another, or in colourable exercise of powers for collateral or ulterior purposes not authorized by the law under which the action was purportedly taken. If the act suffered from mala fide of law, the mischief was corrected by nullifying the act; mala fide of fact, however, further entailed the consequences of making the actor accountable also. [p. 257] P8

West Pakistan v. Begum Shorish Kashmiri PLD 1969 SC 14; Sarwar v. Punjab 1990 SCMR 999; Said Zaman v. Federation 2017 SCMR 1249; Abdul Rauf v. Abdul Hamid PLD 1965 SC 671 and Federation v. Saeed Ahmad PLD 1974 SC 151 ref.

(mmm) Qanun-e-Shahadat (10 of 1984)---

----Art.129(e)---Presumption of correctness attached to an official act---Scope---Public functionary, mala fide of---Proof.

Mala fide was difficult to prove against a public functionary because there was a presumption of regularity with regard to all official acts under Article 129(e) of the Qanun-e-Shahadat, 1984.However, this presumption of regularity was available only to official acts done by a person or authority competent to do that. The presumption of regularity could not be attached to the acts done by the persons and authorities who had no legal authority to do those acts, rather a reverse presumption for lack of bona fide arose. In such a case, the onus to prove mala fide did not remain as high. Mala fide was inferential by construct. It could be drawn from direct or circumstantial evidence. The Court carefully took into consideration the surrounding circumstances of the action; the conduct of the persons involved; the object and purpose to be achieved; and the nature of the illegality. The court, in a way, reconstructed the whole act and its backdrop, and then evaluated the fides of the action and its actors. If mala fide on the part of the actors was apparent on the face of record, then the court of law seized with the matter was not supposed to shut its eyes from taking notice thereof. While full faith was given to public acts and record of the Government, this assumption was overturned if mala fide was borne out from the record. [p. 258] Q8

Federation v. Saeed Ahmad PLD 1974 SC 151 ref.

(nnn) Constitution of Pakistan---

----Arts. 10A, 184(3) 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 116(1)(b) 122---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209(8) of the Constitution), Preamble---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns (wealth statement)---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Supreme Court unanimously quashed the reference and declared that the same was of no legal effect whatsoever, and in consequence thereof the proceedings pending in the Supreme Judicial Council (Council) against the petitioner-judge, including the show-cause notice issued to him, stood abated---Supreme Court (with a majority of 7 to 3) gave directions to the Commissioner, Inland Revenue and Federal Board of Revenue to inquire into and seek explanation from the spouse and children of the petitioner as to the nature and source of the funds whereby the three subject properties in a foreign country were acquired in their names, and also send a report in such regard to the Supreme Judicial Council, which had the powers to, if it considered justified, to commence proceedings against the petitioner in exercise of its suo motu jurisdiction---His Lordship (Syed Mansoor Ali Shah, J) observed that after quashing of the Presidential reference against the petitioner, the case set out against him came to an end---Reasons given by His Lordship for not agreeing with the majority view as to the directions given to the Federal Board of Revenue after the reference had been quashed. [Minority view]

[Note: The directions can be found in the short order of the present reported as (Mr. Justice Qazi Faez Isa and 14 others v The President of Pakistan and others (PLD 2020 SC 346), headnote (b)]

The spouse and children of the petitioner like all other citizens of the country were independent persons and enjoyed an inalienable right to the protection of law. As they were not party to the instant proceedings and were never summoned or made a party to the proceedings by the Court, any adverse order against them, would deprive them of their inalienable right to due process under the Constitution and the law, and would contravene the well-entrenched and deep-rooted principle of audi alteram partem. After the reference against the petitioner was unanimously quashed by the Court, the case set out against the petitioner came to an end. In the absence of any allegations of corruption against the petitioner or of his holding foreign properties in the names of his wife and children as a trustee or a benamidar, the Supreme Court, and for that matter the Supreme Judicial Council (the Council), had no concern with the assets and properties of the spouse and the children of the petitioner. [p. 263] T8

The Federal Board of Revenue (FBR) did not require any direction from the Supreme Court for taking any proceedings against any individual (including a constitutional court judge or his spouse and children) for a tax violation under the Income Tax Ordinance, 2001 (the 2001 Ordinance), if any. Similarly, the Council was also free and independent to exercise its suo moto jurisdiction against any judge of the constitutional courts when so required. It was nobodys case that either the FBR or the Council were reluctant or unwilling to perform their functions under the law and the Constitution. [p. 264] U8

Under Section 122 of the 2001 Ordinance an assessment order could not be reopened after a lapse of five years by the FBR. Also, the directions in the majority view regulating the Tax Commissioner to function and perform his duties within a prescribed time-line, which was not so provided under the 2001 Ordinance amounted to entering the realm of judicial legislation. [p. 264] V8

The direction to the Chairman, FBR to send the report to the Council would make the Chairman, FBR a complainant and the report a new complaint. The FBR was an organ and instrumentality of the Federal Government and was not empowered to directly approach the President under Article 209 of the Constitution unless the Federal Government i.e., the Cabinet, approved to place such information before the Council through the President. [p. 264] W8

The Supreme Court could not direct someone to file a complaint against a constitutional court judge before the Council and then make the Council consider the said complaint. This would have a far reaching effect as it would dismantle the independence and neutrality of the Council and the constitutional scheme under Article 209 that safeguarded a constitutional court judge. It also flouted the right to fair trial under Article 10A of the Constitution. [p. 265] X8

The observation in the majority view that the right to appeal under the 2001 Ordinance would be available to the spouse and children of the petitioner while simultaneously, the Council may also commence proceedings - could lead to conflicting results and thereby, may render the appeal under the 2001 Ordinance otiose and futile. Besides, the Council did not enjoy any power to issue directions to any judicial or a quasi-judicial forum to speed up pending matters against a constitutional court judge. [p. 265] Y8

The proceedings initiated through the majority view after the quashment of the reference against the petitioner would mean that the Council must now consider if a judge could be made vicariously liable for misconduct for his familys affairs, a concept that was alien to the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209(8) of the Constitution) and had nothing to do with judicial integrity. [p. 265] Z8

Per Maqbool Baqar, J; agreeing with the majority view to the extent of quashing of the Presidential reference against the judge but with his own views and also disagreeing with the majority view regarding directions given to the Federal Board of Revenue for initiating proceedings against the judges wife and children, and for submitting a report of said proceedings to the Supreme Judicial Council. [Minority view]

(ooo) Constitution of Pakistan---

----Arts. 14(1), 90, 91, 184(3) 209(5)(b)---Rules of Business, 1973, R. 20(6)---Income Tax Ordinance (XLIX of 2001), Ss. 116(1)(b), 198 216---National Database and Registration Authority Ordinance (VIII of 2000), Ss. 28 29---Government Servants (Conduct) Rules, 1964, R. 18---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council (the Council) in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Held, that the purported reference was based on actual malice and ill-will harboured against the petitioner-judge by the concerned State functionaries on account of a the petitioner-judge had authored in the past [Suo Motu Case No. 7 of 2017 (PLD 2019 SC 318)], wherein he had criticized the ruling political party and one of its coalition partners---Purported reference did not allege any dishonesty or corruption in the acquisition of the foreign properties and it was also not alleged that the petitioner did not have sufficient tax paid/white money to acquire the said properties, if he wanted to---Nothing was placed on the record to show that there had been any money laundering or that the petitioner failed to pay any tax due---Joint reading of Ss.114 116 of the Income Tax Ordinance 2001 (the 2001 Ordinance) showed that the petitioner was not at all required to declare the assets of his non-dependent wife, and children, nor was there any other provision in the 2001 Ordinance creating any such obligation on the petitioner requiring him to disclose the assets of his non-dependent wife and children along with his income returns---Prime Minister bypassed the Cabinet altogether and sent his purported advice to the President for forwarding the purported reference to the Council, without the sanction of the Cabinet---President had not applied his independent mind while forwarding to the Council the purported reference---Assets Recovery Unit (ARU) and its Chairman were bereft of any legal status and had absolutely no power or authority to collect the material in connection with the purported reference---Information about the petitioner and his family available with the Federal Board of Revenue (FBR) and National Database and Registration Authority (NADRA) was freely accessed, obtained and shared by/with the ARU and the media in violation of the respective statutory provisions relating to confidentiality and statutory prohibition on sharing such information---Complainant-journalist who informed the Chairman ARU of the foreign properties belonging to the petitioners family was merely a proxy who was set up by the Government itself---Whole account of complaint followed by an investigation was to cover up the fact that the information about the foreign properties was, in fact, obtained by government agencies through covert surveillances image was systematically damaged through selected leaks and press conferences by members of the Cabinet in relation to the reference---All illegal acts leading upto the filing of the reference were collusive involving at the very least the President, Prime Minister, Law Minister, Chairman Assets Recovery Unit (ARU) and the Attorney General---Malice could be inferred from their deeds and actions and the surrounding context---Law Minister, the Chairman ARU and officials of Federal Investigation Agency (FIA) were additionally liable under the relevant provisions of Income Tax Ordinance, 2001 (the 2001 Ordinance) and the National Database and Registration Authority Ordinance, 2000 (NADRA Ordinance) for illegally obtaining/disclosing personal and confidential information of the petitioner and his family---Prime Minister himself was also liable under the 2001 Ordinance and NADRA Ordinance as it was on his orders and that of his team that the illegalities in relation to the reference were committed---Prime Minister was also liable for sending the purported advice to the President, which in the facts and circumstances of the case was infected with malice---Whereas, the then, Special Assistant to the Prime Minister on Information was liable for committing contempt of Court for the uncalled for and disrespectful comments she made in her press conference relating to the reference---Purported reference against the petitioner was quashed and the proceedings and the show cause notice in relation thereto stood abated---Illegalities and violations of the Constitution and relevant laws committed from the stage of pre-reference investigation/ proceedings to the filing of the Presidential reference before the Supreme Judicial Council stated in detail. [Minority view] [pp. 270, 271, 272, 276, 277, 278, 281, 286, 293, 294, 295, 298, 299, 300, 302, 303, 305, 306, 310] A9, B9, C9, D9, E9, F9, G9, H9, K9, N9, Q9, R9, S9, T9, U9, V9, W9, X9, Y9, Z9, A10, B10, C10, D10, E10, F10 K10

Messrs Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Mohtarma Benazir Bhuttos case PLD 1998 SC 388; Muhammad Yousuf v. Abdul Qayyum PLD 2016 SC 478, 483; State v. Ataullah Mengal PLD 1967 SC 78, 91; Shahbaz Khans case PLD 2016 SC 1, 9; Aftab Ahmed Memon v. Chairman NAB 2019 YLR 1865, 1870; Khawaja Ahmed Hassans case 2005 SCMR 186 and Jan e Alam v. State PLD 1965 SC 640 ref.

(ppp) Income Tax Ordinance (XLIX of 2001)---

----S. 116(1)(b)---Wealth statement---Assets in name of non-dependent spouse and children acquired by them through their own resources, disclosure of---Filer/taxpayer was certainly not required to disclose such assets of his independent spouse and children through the wealth statement that he/she was required to file along with his/her income return. [Minority view] [p. 282] I9

(qqq) Interpretation of statutes---

----Notifications---Beneficial notifications, executive orders and instructions had retrospective effect. [p. 283] J9

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Elahi Cotton Mills Ltd. and others v. Federation through Secretary, Ministry of Finance, Islamabad and others PLD 1997 SC 582 ref.

(rrr) Constitution of Pakistan---

----Arts. 48(2) 209(5)(b)---Presidential reference against a judge of the Superior Courts---President to form an opinion in terms of Art. 209(5) of the Constitution before sending the reference to the Supreme Judicial Council---Meaning and scope---Whether the President could apply his independent mind or had to act on the advice of the Prime Minister---Held, that no concept of any advice was present in the constitutional scheme of initiating and maintaining any proceedings against a Judge---Article 209(5) of the Constitution, recognised the role of only two offices/entities, the President, and the Supreme Judicial Council (the Council)---Prime Minister had absolutely no role or participation in the entire process---Term advice was alien to the proceedings under Article 209---Article 209(5) of the Constitution did not state that President had to form an opinion on the advice of the Prime Minister, thus, it was the exclusive domain and prerogative of the President to form an opinion, whether or not to send the matter to the Council for it to hold an inquiry---President must personally and independently apply his mind as to whether a Judge had committed misconduct and, if so, whether it justified the sending of reference against him. [Minority view] [pp. 287, 288] L9 M9

(sss) Constitution of Pakistan---

----Arts. 4 14(1)---Right to privacy---Scope---Surveillance---Collection of evidence through surveillance---Scope and permissibility. [Minority view]

State functionary could only embark upon the investigation or collection of material about a citizen under (i) the authority of an enabling law, (ii) by a functionary designated under the law; and (iii) only for a justifiable cause or reason. [p. 291] O9

The State had no business to pry upon or collect personal information about its citizen, unless there was a just cause and legitimate purpose for doing so. No State functionary could embark upon an investigation or collection of material without the sanction of an enabling law, and even where such sanction and authority was available, the power and mandate thereunder was well regulated; neither could such power be exercised whimsically, nor could it travel beyond certain specified limits, and was always designed to be invoked/exercised under certain specified circumstances, and only where grounds and reasons justifying such exercise occurred or existed, and in a just, fair and a reasonable manner. Non-compliance of such prescription shall render the investigation, or collection of material, violative of Articles 4 and 14 of the Constitution. [p. 291] P9

(ttt) Interpretation of statutes---

----Similar words in two different statutes---Interpretation of a word or a phrase could not be transported from one statute to another---Comparing the language of one statute with that employed in another was unsafe, even though the subjects covered by the two may involve similarities. [p. 307] G10

Ghulam Mustafa Jatoi v. Additional and Sessions Judge 1994 SCMR 1299 and Federation of Pakistan through Secretary, Ministry of Finance v. Haji Mohammad Sadiq and others 2007 PTD 67 ref.

(uuu) Islamic law---

----Husband and wife---Individual ownership of property---Doctrine of proximity---Applicability---Separation of entities of the spouses regarding the holding of separate properties by them individually was clearly ordained in the Holy Quran---Islam stipulated separate identities of the spouses particularly in relation to their entitlement for holding of their properties separately from one another---Doctrine of proximity did not apply to the properties of spouses. [pp. 308, 309] H10 I10

Verse 7 of Surah An Nisa; Verses 11 and 12 of Surah An Nisa; Verse 32 of Surah An Nisa and Verse 176 of Surah An Nisa ref.

(vvv) Constitution of Pakistan---

----Arts. 184(3) 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 116(1)(b) 122---Presidential reference against a judge of the Supreme Court (the petitioner) pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioners tax returns (wealth statement)---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Supreme Court unanimously quashed the reference and declared that the same was of no legal effect whatsoever, and in consequence thereof the proceedings pending in the Supreme Judicial Council (Council) against the petitioner-judge, including the show-cause notice issued to him, stood abated---Supreme Court (with a majority of 7 to 3) gave directions to the Commissioner, Inland Revenue and Federal Board of Revenue (FBR) to inquire into and seek explanation from the spouse and children of the petitioner as to the nature and source of the funds whereby the three subject properties in a foreign country were acquired in their names, and also send a report in such regard to the Supreme Judicial Council, which had the powers to, if it considered justified, to commence proceedings against the petitioner in exercise of its suo motu jurisdiction---His Lordship observed that after quashing of the Presidential reference against the petitioner, there was absolutely no justification for the said directions to the FBR as they were beyond the scope of the petition---Reasons given by His Lordship (Maqbool Baqar, J) for not agreeing with the majority view as to the directions given to the Federal Board of Revenue after the reference had been quashed. [Minority view]

[Note: The directions can be found in the short order of the present reported as (Mr. Justice Qazi Faez Isa and 14 others v. The President of Pakistan and others (PLD 2020 SC 346), headnote (b)]

Upon quashment of the purported reference and abatement of the proceedings in relation thereto, and in view of the clear finding that the petitioner had not misconducted himself and had no concern, either with the foreign properties held by his spouse and children, or their tax affairs, if any, no question of public importance with reference to the fundamental right, amenable before the Supreme Court under Article 184(3) of the Constitution, remained to be decided, or dealt with. The directions given to the Federal Board of Revenue by the majority view after quashment of the reference were extraneous to the present proceedings. [pp. 283, 287, 309, 310] J10 L10

The properties having been acquired by the wife and children of the petitioner in the tax years 2004 and 2013, and five years period of limitation prescribed by law for opening of the tax assessment with regard thereto having expired several years before, they could not be lawfully required to furnish the source of funds for acquiring the said properties, or any income information for the said years. The assessments that had attained finality with the afflux of time could not be ordered to be re-opened. The Federal Board of Revenues (FBRs) reopening the same shall be in violation of the legal prohibition and disability. Such would also violate the vested rights of the petitioners wife and children. The directions given by the majority view required the wife and children of the petitioner to do what the law did not oblige them to do. [p. 288, 291, 311] M10 P10

The directions to FBR given in the majority view had been passed against the persons (the wife and children of the petitioner) who were neither before the Court nor were they put to notice. No opportunity was provided to them to submit as to why the FBR be not so directed. The wife and children being private citizens, their tax matters had no nexus with the essential pre-requisite for invoking and maintaining any proceedings under Article 184(3) of the Constitution, and were thus not amenable to the proceedings that were invoked thereunder. The role and jurisdiction of the Supreme Judicial Council (the Council)was limited to the matters relating to the conduct and capability of the superior Court Judges; it was not mandated to delve into the affairs of someone who was not a judge of a superior Court. The directions in in the majority view tended to stretch the scope of the Council beyond its mandated jurisdiction, it rather vested in the Council the jurisdiction and authority not granted to it by the constitution. [p. 291] N10 O10

The directions to FBR in the majority view tended to create an anomalous situation, for they provided that the proceedings before the Council as contemplated thereby, shall not be effected by the filing or pendency of any appeal under the Income Tax Ordinance, 2001 (the 2001 Ordinance) against the order/report of the Commissioner, or against any order made or decision taken at any appellate stage, as in the event the Council, on the basis of the report submitted by the Commissioner, recommended removal of the petitioner, but subsequently the petitioner succeeded in his challenge to the order of the Commissioner, and the said report was found not sustainable, the time for the retrieval may have passed, as by then the petitioner may have reached the age of superannuation. Even otherwise the damage inflicted upon the petitioner, and suffered by the Supreme Court, would be irretrievable. In the reverse scenario where the Council may not agree with the findings of the Commissioner, but such findings were upheld by forums before which the Commissioners finding may be amenable to correction, an anomalous and embarrassing situation may arise for the Council. [p. 312] R10

(www) Administration of justice---

----Courts could not and should not create any right, liability or obligation that was not founded in law. [p. 312] Q10

State v. Ziaur Rehman PLD 1973 SC 49 ref.

JUDGMENT

UMAR ATA BANDIAL, JUSTICE:----

786

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