The great escape

Published October 7, 2021
The writer is a lawyer.
The writer is a lawyer.

WHEN denying bail to the mother of accused murderer Zahir Jaffer, the district court had to counter reams upon reams of case law cited in favour of bail given to others in similar predicaments. She may eventually be found guilty of several crimes, but the charge framed against her of abetment etc. could not stand up to independent scrutiny without further inquiry, the fundamental ingredient of bail in such circumstances.

The judge who dealt with the case law said: “I have perused the case laws [20 citations] … referred by the both learned counsel representing petitioners/accused, but the facts and circumstances of the said esteemed case laws and principles enunciated there do not cover the instant proposition on all the fours.” Translation: ‘I’ve read everything but find it to be irrelevant here.’ Exactly how that conclusion was arrived at was missing from the order.

To not even attempt to explain how a case cited is distinguishable from the point at issue is to replace legal certainty (that binds the court to apply the law consistently) with arbitrariness. Most of the time, the cases cited really have no bearing upon what is being adjudicated. But it is in those cases where a judge is sure that the appellate process will not expose him, or where he is ready to bear the consequences of presenting a foregone conclusion instead of using his judicial mind, that you will see the absence of reasoning.

Nasla Tower is a residential building situated on the corner of Sharea Faisal and Shahrah-i-Quaideen in Karachi. Due to the construction of a slip road — to connect the two major thoroughfares — and a flyover on the junction, it is of an irregular size and is unusually close to the road. In April 2021, the chief justice of Pakistan asked the tower’s owner to explain whether he was encroaching on a service road. The owner’s lawyer put forward a comprehensive history of the plot, how it grew in size when Sharae Faisal was redesigned as the then capital city’s artery and how it shrunk when the flyover was created and the state took back a few dozen yards. The owner had documents reflecting each event and approvals from the relevant government agencies for its construction. Residents later made it their home.

To not even attempt to explain how a case cited is distinguishable from the point at issue is to replace legal certainty with arbitrariness.

In June, a three-member bench at the Karachi registry, comprising the CJ and two other judges, decided that the tower was partially encroaching upon a service road because the current mukhtiarkar and the Commissioner’s Office had told them so. Hence it ordered the entire tower to be demolished.

An application for review was filed, and lawyer Muneer Malik held a master class at the podium. To each question, there was a documentary reference in response. The tower’s title was as good as any other in the area. The plot’s history was as clearly kept as any other in the area. The lawyer beseeched the court to uphold the sacred nature of the Article 184(3) proceedings, and to not let the jurisdiction of public protection be soiled. He said that the standards of the leasehold title the court required were absent because of the history of litigation between the government and the Sindhi Muslim Cooperative Housing Society, and were similarly absent for 300,000 yards worth of property including 23 plots in the same society along the same Sharea Faisal. He exhibited Google Earth images of the plot going back a decade, showing that it had never encroached upon any service lane or other public land.

Malik argued that in suo motu jurisdiction, the court could at most order that all encroachments be removed from any service roads and then leave it to the relevant officials to conduct the necessary inquiry allowing for due process. He argued that even if a certain part of the plot was found to be encroached upon; the court did not possess the expertise to decide that the entire tower should come down as had been decided here. He said the commissioner’s opinion was perverse, but the court was choosing to rely on it.

At the end, he put forward his argument that even if it were accepted that the entire tower was constructed upon less than ideal title, the Supreme Court had in different instances operated to protect third-party interest. He cited the case of the Constitution One tower in Islamabad, where an illegally received hotel permit resulted in an apartment building, regularised by Saqib Nisar on his last day, as Salahuddin Ahmed recently reminded us in an address to the bar. Malik cited the Bahria Town judgement and its review where it was found that the government had no authority to swap land with a private constructor after it had ostensibly been secured from the original owners in the name of incremental housing. In review, the court had held that regardless of the rampant illegalities and the orders of criminal investigation in the original decision, because third-party allottees were being affected, their rights required protection. Hence Bahria Town was allowed to legalise the already declared criminal transfer by paying a penalty.

The last argument Malik made was also his simplest: that even if everything I am displaying to you by way of documentary record is legally deficient, the court has regularised such deficiencies at least twice before. The current three-member bench is hence bound by the law of precedent to respect such decisions, even if flawed, because they were also rendered by three-member benches.

The review was dismissed. The court reiterated its stance of the title being deficient. The court then confronted the two judgements cited by Malik regarding Bahria Town and Constitution One: “We have also carefully gone through the judgements cited by the learned ASC for the petitioners and find that the said judgments have been rendered in different sets of facts and circumstances and are clearly distinguishable on facts as well as on law and do not help or advance the case of the petitioners.”

There is no appeal against a suo motu finding of the Supreme Court, even where the bench is selflessly doing the work of town planners and city engineers. When the lawyers movement ended, Muneer Malik would tell those congratulating him that there would be another reckoning and soon.

The writer is a lawyer.

Twitter: @jaferii

Published in Dawn, October 7th, 2021

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