AFIYA SHEHRBANO ZIA vs The HON'BLE SUPREME JUDICIAL COUNCIL arts — 2023 PLD 510 SUPREME-COURT

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AFIYA SHEHRBANO ZIA VS The HON'BLE SUPREME JUDICIAL COUNCIL arts. 209(5), 209(6) & 209(7)---Reference against a Judge before the Supreme Judicial Council ("the Council")---Judge against whom a complaint/reference has been filed before the Council but who either retires or resigns before a report is made by the Council to the President or he makes an order thereon---Plea of petitioner that in such a situation the complaint/reference abates; the matter ends without resolution either way, and the complainant is simply informed that the complaint stands closed; that such a result is inimical to the access to justice and its safe administration, and indeed the independence of the judiciary, and creates an impression of impunity of Judges---Held, that article 209 of the Constitution does not apply to a person who has retired or resigned from the office of a Judge of the Supreme Court or a High Court---It is necessary for the Council, if it forms the necessary opinion, to report to the President that the Judge be removed from office and on such report the President may do so---Thus, the only action permissible to the Council, and hence the President, is the removal of the errant Judge from office---If this is not possible, then clause (6) of article 209 of the Constitution can have no application---Obviously, this outcome is impossible in relation to a Judge who has already retired or resigned---Council can only make a finding of misconduct in terms of article 209, which applies only to a Judge still in office at the relevant time and results in his removal from office---Constitution draws a distinction between a person who, at the relevant time, holds office as a Judge and one who, having held that office in the past, does not---article 209 of the Constitution applies only to the former and not the latter.

AFIYA SHEHRBANO ZIA vs The HON'BLE SUPREME JUDICIAL COUNCIL arts — 2023 PLD 510 SUPREME-COURT

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