Justice QAZI FAEZ ISA vs PRESIDENT OF PAKISTAN arts — 2022 PLD 119 SUPREME-COURT

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Justice QAZI FAEZ ISA VS PRESIDENT OF PAKISTAN arts. 25, 184(3), 187(1), 188, 209(5)(b) & 211---Income Tax Ordinance (XLIX of 2001), Ss.11(5), 111, 116(1)(b), 121, 122, 198, 199, 209 & 216---Review petitions before the Supreme Court challenging the directions given to the tax authorities by the Supreme Court to conduct an inquiry into the foreign assets of a Supreme Court Judge's family members and submit a report to the Supreme Judicial Council despite quashing of Presidential reference against the Judge---By way of the impugned directions contained in paras 4 to 11 of the short order [reported as (PLD 2020 SC 346)], along with supporting detailed reasons given in the majority judgment (reported as PLD 2021 SC 1), the Supreme Court directed the Commissioner, Inland Revenue and Federal Board of Revenue to inquire into and seek explanation from the spouse and children of the judge as to the nature and source of the funds whereby the properties in a foreign country were acquired in their names, and also send a report in such regard to the Supreme Judicial Council, which, it was held had the powers to, if it considered justified, to commence proceedings against the judge in exercise of its suo motu jurisdiction---[Per Maqbool Baqar, Mazhar alam Khan Miankhel, Syed Mansoor ali Shah and amin-ud-Din Khan, JJ. [Majority view]: Impugned directions contained in paras 4 to 11 of the short order [reported as (PLD 2020 SC 346)], and other connected matters along with supporting detailed reasons given in the majority judgment [reported as (PLD 2021 SC 1)], of the same date were recalled and set-aside---all the subsequent proceedings, actions, orders, information and reports in pursuance of the directions contained in the short order [reported as (PLD 2020 SC 346)], and the detailed reasons thereof [reported as (PLD 2021 SC 1)], were declared to be illegal and without any legal effect---Resultantly, the Supreme Court directed that any such proceedings, actions, orders or reports could not be considered or acted upon and pursued any further by any forum or authority including the Supreme Judicial Council]---[Per Yahya afridi, J, agreeing with the Majority view but with his own reasons: Impugned directions contained in paragraphs Nos. 4 to 11 of the short order [reported as (PLD 2020 SC 346)] had been made without appropriately considering the scope of the ouster clause of art. 211 of the Constitution and the relevant provisions of the Income Tax Ordinance, 2001 ("the 2001 Ordinance")---Said two crucial omissions were marked and distinct "errors apparent on the face of the record" and thus, warranted the positive exercise of the review jurisdiction of the Supreme Court---Directions contained in paragraphs Nos. 4 to 11 of the short order [reported as (PLD 2020 SC 346)], and the detailed judgment [reported as (PLD 2021 SC 1)], and other connected petitions were recalled---Consequently, all the subsequent proceedings, actions, orders and reports made in pursuance to the said directions were declared to be of no legal effect and/or consequences]---[Per Umar ata Bandial, J. dissenting [Minority view]: Being in the Service of Pakistan, the petitioner-Judge remained answerable for the unaccounted assets of his spouse---Two out of the three foreign properties were purchased while the petitioner-Judge was holding the public office of Chief Justice of the High Court and the said properties were undeclared in his wealth statements and that of his wife---No fundamental right of either the petitioner-Judge or his wife had been infringed by the impugned direction to the Federal Board of Revenue (FBR) to investigate the nature and source of funding of the foreign properties because there was no fundamental right granted in the Constitution to public servants/citizens to be immune from investigations into their financial affairs---Judge's wife herself demanded why FBR had not approached her regarding the foreign properties, which is why she could not subsequently take the contradictory plea that a direction to the FBR to such effect was contrary to law---Impugned direction to the FBR to commence proceedings against the Judge's wife did not affect the person, property or any other right of the wife, instead, it only asked the FBR to initiate proceedings to verify her sources of funding the foreign properties---In no way did the impugned direction to the FBR determine or influence the outcome of the proceedings which were to be conducted under the 2001 Ordinance by a Commissioner, Inland Revenue (CIR)---Essential ingredients of the right to be heard, namely, prior notice of the subject-matter and opportunity of hearing to articulate plea of the Judge's wife, were complied with in the present case---Documents produced by the Bank revealed the connection of the petitioner-Judge with the Foreign Currency account of his wife, that was statedly used for purchasing the foreign properties---In the present case, there was material that called for an explanation before the Council which must be provided to protect the petitioner-Judge and the (Supreme) Court from aspersions cast on their integrity]---[Per Munib akhtar, J. dissenting (Minority view) : Four Member Judgment authored by Maqbool Baqar, Mazhar alam Khan Miankhel, Syed Mansoor ali Shah and amin-ud-Din Khan JJ, had purportedly also been signed by a retired Judge i.e. Manzoor ahmad Malik, J---Said retired Judge was a signatory to one of the short orders dated 26-04-2021 but he retired on 30.04.2021---Therefore, he could not, as a matter of law, have signed the judgment---Judge who has already retired, cannot thereafter give, make or sign any judgment, order or decree---Short order passed by Maqbool Baqar, Mazhar alam Khan Miankhel, Syed Mansoor ali Shah and amin-ud-Din Khan JJ, and the short order of Yahya afridi, J, did not have commonality between them and hence lacked the support of the majority i.e. six judges---For such reason the short order was not operative in and of itself---Neither the Four Member Judgment nor that of Yahya afridi, J, nor such reasoning or ratio as may be common between them had any binding precedential effect or value]---Detailed reasons for allowing the review petitions and recalling the impugned directions stated.

Justice QAZI FAEZ ISA vs PRESIDENT OF PAKISTAN arts — 2022 PLD 119 SUPREME-COURT

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