ISLAMABAD: A senior counsel representing incarcerated PML-N leader Hanif Abbasi termed the Supreme Court’s judgement of Dec 15 last year of exonerating Prime Minister Imran Khan a “juristic oversight” on part of the apex court.

But a three-judge bench, headed by Chief Justice Mian Saqib Nisar, rejected the petition seeking review of the Dec 15 verdict with an observation that no case of review was made out.

The court dismissed Mohammad Akram Sheikh’s argument that the Supreme Court should treat review petitions against judgements issued under Article 184(3) of the constitution in a liberal fashion and regard them akin to intra-court appeals.

Original verdict termed ‘juristic oversight’

The chief justice declared as “no ground” Mr Sheikh’s contention that the apex court, while deciding in favour of Imran Khan in the Dec 15 judgement misread or overlooked the non-disclosures on his part in the 2002 nomination papers which were also available on record.

On Sept 27, the same bench had dismissed PTI leader Jahangir Khan Tareen’s review petition against his disqualification.

On Thursday, Justice Umar Ata Bandial, a member of the bench, observed that the arguments of the counsel regarding juristic oversight were in fact misleading and that the beauty of his arguments in the review petition against the judgement was that he was pleading without reading a single sentence from the judgement.

“You are making sweeping statements and speaking which is appealing to yourself or the audience in the courtroom,” Justice Bandial observed, adding that the counsel was drawing unnecessary parallel between the Imran Khan judgement and the Panama Papers case.

The chief justice agreed that the two cases have different facts and features.

Akram Sheikh, however, retorted that he always appeared in the courtroom with full comprehension of the case and expressed the hope that one day there will be a law requiring that judges who decide a case should not be part of a bench set up to hear a review petition against their judgement.

The counsel began his arguments by citing an assurance on part of the apex court to search and find the truth, adding that the entire judgement proceeded on the documents provided by Mr Khan in bits and pieces.

He argued that Article 188 of the constitution confers upon the court substantial powers to revisit its judgements and the basis of this review jurisdiction is the Quranic and Asool-i-Fiqh of Rajoo anil Khata that proceeds on the concept that judges were not infallible.

Therefore, if the judgement proceeds on any wrong assumption of facts and law or of any other human error, that must be corrected.

The counsel argued that parliament had been negligent in its duty to promulgate a law under Article 188 and did not perform its duty to provide for the prerequisite framework for exercise of this trust power.

He contended that even the Supreme Court did not make rules for exercise of the review jurisdiction under constitutional jurisdiction i.e. starting with Article 184(1), 184(2) and 184(3). Therefore, the scope and power of the review should be interpreted as a power equivalent to an intra-court appeal by either a larger bench or a different set of judges because if the judges have to be the same who rendered the judgement in earlier round, then this violates the basic principle that no one can be a judge in his own cause.

The counsel expressed the hope that the parliament after more than 45 years may realise its duty to make a law in terms and for enabling the Supreme Court to exercise the review jurisdiction for the ultimate benefit of the citizens of Pakistan and in view of the law to be promulgated.

Till such time this court should not be denuded from the authority and consistent with the practice that if there is the slightest doubt that a case requires constitution of a larger bench to avoid inconsistency, the apex court should not stay its hands off to constitute a larger bench for hearing of the cases.

Akram Sheikh argued that the equal number of bench should not sit to overrule an earlier order, adding that the rule of strict liability as determined by the Panama judgment will be the same for the Khan case since two different yardsticks will not apply.

Should not the court reconcile and review the scope of mis-declaration in the nomination papers and apply one standard gauge in matters of involving same question irrespective of persons involved.

He also emphasised about the yardstick of what omissions in the statements of assets and liabilities in the nomination papers were to be considered as being penalised with disqualification for life and what were to be condoned.

He contended that the Dec 15 judgment did not follow the strict liability rule propounded by the Supreme Court itself in the Panama judgment.

The counsel contended that Imran Khan did not disclose the assets of his former wife (Jemima Khan), except for some property in the Banigala, though it was a known fact that she was a very rich lady from whom Mr Khan himself had been borrowing money.

Published in Dawn, October 19th, 2018