April 3, 2002	Wednesday	Muharram 19,1423

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ISLAMABAD, April 2: The Supreme Court was informed on Tuesday that Justice Fakeer Khokhar, apart from being junior to 12 judges of Lahore High Court, was not qualified to become an SC judge, as his experience as high court judge was less than five years.

Supreme Court Bar Association President Hamid Khan stated before the SC bench hearing petitions challenging the appointment of three judges that Justice Khokhar’s appointment as SC judge smacked of extraneous considerations.

He said that under Article 177 of the Constitution, a judge of high court was only qualified to be judge of the Supreme Court if he had worked for five years as high court judge.

The counsel argued that Justice Khokhar had only three years experience as a high court judge.

He said that Justice Khokhar, who was appointed additional judge of the LHC in December 1996, worked for two years as federal law secretary, which was an executive office.

Told that in the case of Justice Qazi Gul retired the SC had held that the period he worked as law secretary was countable as judge of high court, the counsel argued that the judgment was not valid after the Judges Case in 1996.

He said a number of good judges were laid off in the “regularisation process” after the Judges Case as it had been provided that no lawyer without having 10 years active high court practice was qualified to become judge of high court. The same principle was applicable to the high court judges, he said.

The counsel argued that Justice Khokhar was recommended by the then chief justice, Irshad Hasan Khan, against a vacancy which did not exist at the time of notification.

He argued that the circumstances suggested that Justice Khokhar, as federal law secretary, possibly made a bargain with the then chief justice, who became the chief election commissioner soon after his retirement from the SC, and Justice Khokhar was appointed judge of the Supreme Court. The counsel argued that when an official power was used for personal purposes, it fell under the definition of “mala fide of law.”

Hamid Khan opposed the appointment of Justice Khalilur Rehman Ramday and Justice Mohammad Nawaz Abbasi, who were third and fourth on the seniority lists, on the ground that the principle of seniority was violated.

He, however, devoted hours to the appointment of Justice Khokhar, and said in his desire to jump the queue, he had breached the trust which was reposed in him as federal law secretary.

He said that Justice Khokhar, who had no “legitimate expectancy” being a junior judge, misused his office of law secretary for his personal gains. He said that his appointment as SC judge was made in violation of the doctrine of natural justice, which required that nobody could be judge in his own cause.

When counsel for the federation, Abdul Hafeez Pirzada, objected to the use of words like mala fide and extraneous reasons, the court asked Hamid Khan to be careful in the use of words.

The SCBA lawyer said it was his utmost effort to use temperate language but it was his unpleasant duty to say such things.

He said the tradition of appointing judges of high court as federal law secretary was discontinued after the Judges Case. He said that Saqib Nisar, Chaudhry Irshad and Justice Akhtar retired were appointed federal law secretaries before the appointment of Justice Khokhar on the post.

He argued that the requirement of filling the vacant posts of high court and supreme court judges within 30 days was violated by all the responsible functionaries, which was the root cause of the problem.

He said that accumulating the vacancies and then resorting to manipulation was the real malaise.

Hamid Khan completed his argument saying that he reserved the right to make more arguments if the record of the appointments was made available. He said he had made arguments purely on the constitutional plane as no official record was available.

A counsel appearing for the Lawyers Forum, A.K. Dogar started his arguments before the end of proceedings. He was developing the argument, when the court rose to assemble again on Wednesday, that when identical matters were challenged in high court and supreme court, preference must be given to the high court. The bench comprised Chief Justice Sheikh Riaz Ahmad, Justice Qazi Mohammad Farooq, Justice Mian Mohammad Ajmal, Justice Deedar Hussain Shah and Justice Abdul Hameed Dogar.