ISLAMABAD, March 28: The Supreme Court was urged here on Wednesday to declare that the acting chief justice could not head the Supreme Judicial Council (SJC) and that a reference of misconduct could not be filed against a sitting Chief Justice of Pakistan.

Two petitions have been filed in the Supreme Court, one by Barrister Zafarullah Khan of the Pakistan Steel Mills case fame and the other by Shahid Orakzai, pleading to declare that religious status of a citizen should take precedence over the seniority of service as a judge of the apex court to act as the acting chief justice.

In his petition, Barrister Khan relies on a judgement of the Supreme Court (PLD 1996 P-324SC Al Jihad Trust Case) wherein it was decided that “acting chief justices are allowed to function for a short time and in the absence of permanent chief justice the composition of the Supreme Judicial Council (SJC) becomes imperfect and the body as such becomes non-functional”.

The Chief Justice of Pakistan is available; his office is not vacant and he is not on leave nor can he be suspended or removed like other judges of the superior judiciary, says the petition.

Besides, the question of his inability to perform the function should be determined by the Supreme Court and not by the executive.

In addition to challenging the chairmanship of the SJC by Acting Chief Justice Rana Bhagwandas, Barrister Khan also sought exclusion of those judges from the SJC against whom references of misconduct were pending.

The petition prays that the formation and composition of the present SJC under the acting chief justice be declared unlawful, illegal and unconstitutional.

The federal government, the Ministry of Law and Supreme Judicial Council are respondents in the petition.

Shahid Orakzai has challenged the action of giving the charge of a Muslim chief justice to a non-Muslim judge.