Law: Constitution of Pakistan, 1973

Section: 4,10A,209(5)(b),209(6)

(a) Constitution of Pakistan---

----Arts. 4, 10A, 209(5)(b) & 209(6)---Code of Conduct for Judges of the Supreme Court and High Courts, Arts. II, III, V & IX---Judge of the (Islamabad) High Court---Removal from service due to misconduct---Legality---Petitioner (Judge) was not given an opportunity to establish his allegations nor brought face to face with those he had accused---Supreme Judicial Council ("SJC") did not give any credence to petitioner's own words and to the contents of his replies; the SJC assumed that they were false; and having made this assumption concluded that petitioner was guilty of misconduct---Petitioner was deprived of his Fundamental Rights of fair trial and due process---Supreme Judicial Council had dispensed with the holding an inquiry but did not do so for any compelling or justifiable reason---Supreme Judicial Council did not specify which particular provision or aspect of the Code of Conduct for Judges of the Supreme Court and High Courts, the petitioner had violated---Report/Opinion of the SJC and the Notification by which the petitioner was removed from his office were set aside by the Supreme Court with the direction that the petitioner shall be deemed to have retired as a Judge of the (Islamabad) High Court.

Petitioner, who was a Judge of the (Islamabad) High Court, had levelled very serious allegations against the then DG-C of Inter Services Intelligence ('ISI'), and a few of his subordinates in the ISI who he accused of manipulation of certain sensitive cases in the Islamabad High Court and in the Accountability Court, which was under the jurisdiction of the Islamabad High Court. However, petitioner was not given an opportunity to establish his allegations nor brought face to face with those he had accused. All those against whom the petitioner made allegations denied their stated involvement before the Supreme Court. Therefore, it was all the more necessary for the Supreme Judicial Council ("SJC") to have inquired into the matter and to have determined who was telling the truth. The SJC did not give any credence to petitioner's own words and to the contents of his replies; the SJC assumed that they were false; and having made this assumption concluded that petitioner was guilty of misconduct. It would be difficult to categorize such a determination as fair or one which accorded with the requirements of due process. Petitioner was not given an opportunity to establish the veracity of his allegations, which was incumbent on the SJC when the same formed the basis of his removal from office. The Fundamental Rights enshrined in the Constitution include the right to a fair trial and due process (Article 10A) and all citizens, including Judges, must be dealt with in accordance therewith. However, petitioner was deprived of his Fundamental Rights of fair trial and due process. Article 209 of the Constitution does not stipulate that in determining whether a Judge is guilty of misconduct he is denuded of the Fundamental Rights nor permits the SJC to act contrarily to them.