ISLAMABAD: The federal government is contemplating instituting an appeal before the Supreme Court against its 2023 Afiya Shehrbano Zia judgement, which held that judges who retire or resign do not fall within the ambit of Article 209 of the Constitution that determines misconduct of superior court judges.

The information was laid by Attorney General for Pakistan (AGP) Mansoor Usman Awan before a five-member Supreme Judicial Council (SJC) on Friday that held its meeting in an open court to consider whether it should continue proceedings of misconduct against a former Supreme Court judge, Justice Sayyed Mazahar Ali Akbar Naqvi, who resigned on Jan 10.

The AGP explained before the council that his attention was drawn towards the judgement recently and he was informed by the federal government that it was pondering moving an appeal against the verdict.

The SJC — headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justices Sardar Tariq Masood, Syed Mansoor Ali Shah, Balochistan High Court Chief Justice (CJ) Naeem Akhtar Afghan and Lahore High Court CJ Muhammad Ameer Bhatti — postponed further proceedings for Monday (Feb 15) since an apex court bench headed by CJP Isa had to take up an election matter relating to the PTI about its election symbol ‘bat’.

Senior counsel Khawaja Haris Ahmed on behalf of Justice Naqvi could also not reach the court in time since the Lahore-Islamabad motorway was closed due to smog.

Dr Yasir Rehman told the council that the senior counsel was on his way to the court and would reach in a few hours. He said the SJC could not conduct an inquiry against the resigned judge and therefore the council should not proceed against Justice Naqvi since he was no longer in office.

On Thursday, AGP Awan had told the council that the division bench which had taken the petition of Shehrbano Zia, consisting of now-retired Justice Ijazul Ahsan and Justice Munib Akhtar, had decided the matter in limine without issuing a notice to the AGP office under Rule 27A of the Civil Procedure Code (CPC) or the respondents.

Besides, the decision had come on June 27, 2023, when the Supreme Court (Practice and Procedure) Act 2023 was enacted which stipulated that petitions under Article 184(3) of the Constitution could only be heard by a bench not less than three judges, the AGP had argued, adding that though the act’s operation was stayed, the bench could have waited for the outcome of appeals against the act.

Advocate Hina Jilani had argued on Ms Zia’s behalf before the division bench that any reference or a complaint against a superior court judge under Article 209 of the Constitution abated in case the judge either retired or resigned before the council furnished its recommendation to the president against the judge.

Published in Dawn, January 13th, 2024