The Supreme Court (SC) on Tuesday asked the federal government to explain the process through which material was gathered to file a reference against Justice Qazi Faez Isa.
Resuming the hearing of the case, the full court, led by Justice Umar Ata Bandial, asked government’s counsel former law minister Dr Farogh Naseem to explain if the material against the top court judge was collected illegally and whether it could be relied upon to file a reference. The bench also questioned how the complaint was filed before the Assets Recovery Units (ARU) and not before the Supreme Judicial Council (SJC), that could have initiated suo motu proceedings against the judge.
Naseem told the bench that Justice Isa did not provide a money trail for the properties owned by his family members abroad. “The apex court judge has admitted that his family owns properties abroad, but he did not provide a money trail to establish how the money was sent abroad to purchase the flats,” he said, adding that ‘a judge should be blameless, keeping in view the judges’ code of conduct’.
However, Justice Syed Mansoor Ali Shah asked the counsel to prove that the properties were benami and that the money was provided by Justice Isa. “You have to establish that children and spouse are dependent on Justice Isa,” he said, adding that if Justice Isa’s son purchases property outside the country as an independent, will he then be answerable everywhere?
Responding to Justice Shah’s observation, Naseem stated that the burden to prove that the properties are benami and that the funds to purchase them came from Justice Isa is not on the federal government, adding that tax record shows that the SC judge’s spouse had no income to purchase flats in London.
Justice Bandial observed that the judge had stated that his spouse is a taxpayer and she should be asked about the source of funds used to purchase properties.
Justice Muneeb Akhtar wondered whether the federal government is deviating from the reference wherein it is only alleged that the SC judge violated the income tax laws by not disclosing family members’ properties in his wealth statement. “There was no mention about the money trail in the reference,” he added.
The government’s counsel said that after the Supreme Judicial Council issued a show cause notice to Justice Isa, the apex court did not have the jurisdiction to examine the matter under Article 211. He added that the top court had intervened in the matter of former CJP Iftikhar Chaudhry because he had not been issued a show cause notice.
Justice Muneeb Akhtar, while referring to a case in the UK, observed that if the foundation of the reference is illegal then the court may consider declaring the reference ‘a blank piece of paper’.
Justice Faisal Arab asked whether it was mandatory for the SJC to issue a show cause notice to a judge on a presidential reference. He said that if something is based on mala fide intentions then the court can intervene in the matter at any stage, even after completion of the SJC inquiry against the judge.
The bench was surprised when Naseem submitted fresh documents regarding collection of evidence against Justice Isa. “Why did the government not present these documents before when defense counsel Munir Malik was questioning the manner wherein the material was being collected against the judge,” the court questioned.
Earlier at the onset of the hearing, Justice Isa’s counsel objected to Naseem’s representation of the federal government. “I respect Farogh Naseem, but [I] do object to his representation of the federal government,” said Munir Malik, adding that the former law minister will have to present a certificate from Attorney General of Pakistan Khalid Jawed Khan in order to be deemed appropriate for the representation.
In his arguments, Naseem said that he will also represent Special Assistant to PM on Accountability Shahzad Akbar. “I was made a party to the case in a personal capacity, Irfan Qadir will represent me,” he said.
Malik said that according to the rules, the federal government is not allowed to hire a private counsel. However, Justice Atta Bandial said that the defense counsel should not raise an objection and let the case proceed further. “The summer vacations are around the corner and we want the case to proceed,” he remarked.
