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Old Saturday, August 01, 2009
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Default Fall-out of SC judgment on PCO

Fall-out of SC judgment on PCO

Saturday, August 01, 2009
By By Jamal Khurshid

The Sindh High Court (SHC) will be hugely affected following the judgment of the Supreme Courtís (SC) larger bench that declared the former President General Pervez Musharafís November 3 Provisional Constitutional Order (PCO) illegal.

In the light of the SC judgment, as many as eight judges of SHC, who took oath under the PCO on November 3, 2007, will have to face proceedings before the Supreme Judicial Council (SJC) under Article 209, while 16 judges of SHC Ė of which three are confirmed judges appointed during November 3 PCO, while the 13 other additional judges were appointed on March 3 this year Ė would cease to hold office forthwith.

Three judges of the SHC Justice Mohammad Moosa K Leghari, Justice Zia Pervez and Justice (Retd) Zawar Hussain Jaffery, who were elevated as Judges of the Supreme Court under the PCO, will either stand retired if their tenure is completed or face proceedings before the SJC for violation of SCís seven member bench that restrained judges of the superior courts from taking oath under the PCO.

Three judges, Justice Salman Ansari, Justice Zafar Ahmed Khan Sherwani and Justice Abdur Rasheed Kalwar, who although did not take oath under the PCO, but in August and September last year got either an extension or a confirmation with the consultation of Chief Justice Abdul Hameed Dogar, will also cease to hold the office as judges of SHC.

The SC observed in its judgment that as Justice Dogar was never a constitutional Chief Justice of Pakistan, therefore, ďall appointments of judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, unconstitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith.Ē

For those judges who took oath under the PCO in November 2007, the SC observed that those judges who stood appointed to the said offices prior to November 3, 2007, but took oath of their respective offices in disobedience of the order passed by a seven member bench of SC in constitution petition 73 of 2007 shall be proceeded against under Article 209 of the Constitution. In this regard, secretary of law division shall take steps in the matter accordingly.

The judges from Sindh who took oath under the November 3 PCO in violation of SCís seven member bench are: Justice Mohammad Afzal Soomro as Chief Justice, Justice Munib Ahmed Khan, Justice Mrs. Qaiser Iqbal, Justice Yasmeen Abbasey, Justice Nadeem Azhar Siddiqui, Justice Ali Sain Dino Maitlo, Justice Abdur Rehman Farooq Pirzada, Justice Syed Mahmood Alam Rizvi and Justice Azizullah M Memon (who retired in March this year).

During the PCO, President Pervez Musharraf appointed eleven additional judges of the SHC who took oath under the Article 197 of the Constitution read with PCO 2007.

These judges were Justice Khawaja Naveed Ahmed, Justice Rana M Shamim, Justice Khalid Ali Z Kazi, Justice Agha Rafiq Ahmed Khan (now Chief Justice of Federal Shariat Court), Justice Syed Pir Ali Shah, Justice Bin Yamin, Justice Arshad Noor Khan, Justice Dr Qamaruddin Bohra, Justice Ghulam Dastagir Shahani, Justice Furrukh Zia Sheikh and Justice Qadir Khan.

Out of eleven, only 3 judges, including Chief Justice of the Federal Shariat Court Justice Agha Rafiq Ahmed Khan, Justice Khalid Ali Z Kazi and Justice Bin Yamin were confirmed by the former Chief Justice Abdul Hameed Dogar.

On March 3 this year, President Asif Ali Zardari has also appointed 13 additional judges of the SHC. The additional judges are: Justice Maqbool Ahmed Awan, Justice Safdar Ali Bhutto, Justice Moharram G Baloch, Justice Malik Mohammad Aqil, Justice Shafqat Ali Shah Masoomi, Justice Ms. Soofia Latif, Justice Mohammad Iqbal Mahar, Justice Salman Talibuddin, Justice Khadim Hussain M Sheikh, Justice Mohammad Ismail Bhutto, Justice Arshad Siraj Memon, Justice Amir Raza Naqvi and Justice Mohammad Karim Khan Agha. After the SCís judgment the appointment of these judges was also declared unconstitutional as these were not consulted with the dejure Chief Justice of Pakistan.

The SC also observed in the judgment that judges so unconstitutionally appointed to the SC while holding the offices as Judges of any of the High Courts shall revert back as judges of the respective high courts subject to their age of superannuation and likewise, the judges of the High Courts, who were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall revert back as District and Sessions Judge subject to limitation of superannuation.

The court also observed that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan.

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