ISLAMABAD: The Supreme Court on Tuesday questioned whether reliance can be placed on the documents which were procured illegally, to file a reference against a judge under Article 209 of Constitution.

Justice Maqbool Baqir, addressing Farogh Naseem, said with due deference the material [against the petitioner] was collected “illegally".

He asked Farogh Naseem whether he can place reliance on the documents, which were collected illegally. He noted that Rasheed A Rizvi, while arguing a Sindh Bar Council petition regarding the matter, has stated that under the tax law reliance could not be placed on illegal documents.

At the outset, Munir A Malik, the counsel for Justice Faez, objected to the appearance of Farogh Naseem on behalf of the federation.

He said the former law minister has to produce a certificate from the Attorney General for Pakistan (AGP) and the federation in order to represent the federal government.

Only after Farogh Naseem submitted the AGP's certificate did the bench allow him to argue the case.

Farogh Naseem representing the federation and Shahzad Akbar after reading Abdul Hameed Dogar's complaint for filing a reference, referred to Gotham forest property of Justice Qazi Faez's spouse.

He said over the weekend, when the federation decided to engage him to represent it then he got hold of “this document".

He said it was annexed with Dogar's application, but could not be filed earlier as it was not available.

A 10-member larger bench, headed by Justice Umar Ata Bandial, heard the identical petitions challenging presidential reference against Justice Qazi Faez for allegedly not disclosing his foreign properties in his wealth statement.

Besides the apex court judge, the Pakistan Bar Council, the Supreme Court Bar Association, Bar Councils and Associations of Punjab, Sindh and Balochistan, and Abid Hassan Minto, and I A Rehman have also challenged the Presidential reference against Justice Qazi Faez Isa.

Justice Sajjad Ali Shah said, for two days, Munir A Malik had argued that there was no document of the property attached with Dogar's application.

He had argued that if the document was known then the whole case would have been resolved.

Justice Sajjad said for two days complainant Dogar stood before the bench and when they inquired from him about the property's document, he failed to produce it.

Farogh Naseem said this document was obtained from the London revenue record, “and it cannot be fake". If this document was not provided earlier then it is the government's fault.

Justice Maqbool Baqir said there was no document with Dogar's application. The federal government would have been aware of it. He further said the ARU letter also does not refer to the document. Justice Mansoor questioned how the complaint landed in ARU. He further asked whether the ARU a proper forum for proceeding under Article 209 of the Constitution.

He also questioned why the complaint was not submitted directly to the Supreme Judicial Council (SJC) or to the President of Pakistan.

The whole focus of Farogh Naseem was that as the SJC has issued a show-cause notice to Justice Faez; therefore, the apex court cannot hear his petition, which has alleged mala fide about the Presidential reference.

However, the judges inquired from the brief about the process initiated for filing the reference against an apex court judge.

Justice Sajjad Shah asked the federation's counsel, that if the show cause is issued then the Supreme Court jurisdiction is barred and that the court cannot question the mala fide.

The judge said if they do not accept his argument on the SC jurisdiction then start argument on the merit of the case.

Justice Maqbool Baqir asked the counsel to tell how the process [of filing reference] started.

He inquired whether the whole action was premature, and whether the petitioner (Justice Qazi) was given any opportunity to appear before a proper forum in order to determine the misconduct.

Justice Baqir said the court to be mindful of the facts that every action, order or direction has to be found in accordance with the law.

Justice Muneeb Akhtar said the federation's claim of reference is based on the tax law.

He asked where the source [of acquiring properties] is written.

Justice Qazi Muhammad Amin Ahmed said why the government is curious to know about the judges' property and why the judge has to explain unless there is tangible proof in hand against the judge.

He questioned: Will it not militate the independence of the judiciary? Farogh Naseem argued that the entire case revolves around three London properties, which are in the names of the Justice Qazi Faez's spouse and children. He said that the petitioner has admitted the existence property, but so far not provided the money trail.

It is not informed that how the money was taken out of the country. He said the judges are respectable persons in society.

The bench directing Farogh Naseem to explain whether on the basis of “illegal" document a reference could be filed and adjourned the case until today (Wednesday).

Copyright Business Recorder, 2020