IN THE SUPREME COURT OF PAKISTAN

C.M.A. No. ____ of 2023

in
Intra Court Appeal No.5 of 2023
in
Constitution Petition No.24 of 2023

Shuhada Forum Balochistan

…Appellant
versus

Jawwad S. Khawaja and others

…Respondents

APPLICATION ON BEHALF OF JAWWAD S. KHAWAJA UNDER ORDER

XXXIII RULE 6 OF THE SUPREME COURT RULES 1980 AND ALL
OTHER ENABLING PROVISIONS OF LAW

1. The Respondent was the Petitioner in Constitution Petition No.24 of 2023. This was

a petition under Article 184(3) of the Constitution. In order for it to be maintainable,

the Court needed to be satisfied that there was a question of public importance raised

with reference to enforcement of fundamental rights.

2. Constitution Petition No.24 of 2023 together with other related petitions was

originally listed before a nine-member Bench of this Court on 22.06.2023.

3. Before the nine-member Bench could take up the matter, two of its members, Justice

Qazi Faez Isa and Justice Sardar Tariq Masood refused to sit as part of the Bench.

Justice Isa read out a prepared note in open Court. After reading out the note, Justice

Isa and Justice Masood rose from the Bench. The Bench was thereafter reconstituted.
4. Justice Masood issued a signed document dated 26.6.2023. The document was made

public. It is not clear what the legal nature of this document is. It is not an order or a

decision passed by him in his judicial capacity. It seems to constitute, in part, a

grievance of sorts against the then Chief Justice of Pakistan regarding constitution of

the nine-member Bench. Traditionally, Judges speak through orders, whether as part

of the majority or the minority.

(The note is attached as Annexure A to this application)

5. The note records Justice Masood’s views on various matters. The relevance of the

note for the purposes of the present application is that it gives findings in paragraph

number 3 with respect to the maintainability of the subject petitions. As a result of

these findings, Justice Masood has already expressed his view in this specific matter

(and this view was expressed without hearing the parties) that the subject petitions

were not maintainable under Article 184(3).

6. One of the arguments raised by the Federation in the original petition and in the

present ICA is that the petitions are not maintainable under Article 184(3).

7. Paragraph 3 of the note speaks for itself. It contains findings regarding the

maintainability of the subject petitions under Article 184(3). Justice Masood holds

that, “These four petitions have been filed by those who apparently are not detained,

nor facing trial with regard to the offences, allegedly committed on 9th May 2023 in

Cantonment Areas and the said persons had attacked, destroyed and/or burnt public

property and the property of the armed forces, PAF base and other prohibited areas

etc. including the GHQ. If a law is challenged, usually it is before the High Court

under Article 199 of the Constitution however these petitions have been filed in this

court under Article 184 (3) of the Constitution which jurisdiction can only be
 invoked in the public interest for the enforcement of fundamental rights mentioned

in Chapter 1 of Part-II of the Constitution.” (Emphasis added)

8. Justice Masood has decided that the vires of a law is “usually” challenged before a

High Court. He has rendered this finding without giving the petitioners an opportunity

to address the issue of why a direct approach to the Supreme Court was appropriate

and necessary in this case and why such an approach has been endorsed by larger

benches of the Supreme Court. Through his finding, Justice Masood considers the

subject petitions by necessary implication as “unusual”. This finding is wrong and

indicates a predisposition which compromises, possibly substantively and certainly

as a matter of perception, independent and unbiased adjudication.

9. Moreover, Justice Masood holds that, “It should not be presumed that those who may

be tried raised objections to their trial under the Army Act, 1952 nor that they prefer

to be tried in any Anti-Terrorism Court under the Anti-Terrorism Act, 1997 or before

a criminal court mentioned in the Criminal Procedure Code. In any event, every

individual case has to be considered on the basis of the fact of the case and the

applicable law and this is to be done after hearing the nominated accused, nothing

should be done which may jeapordise the interest of an accused without hearing

his side.” (Emphasis added)

10. By giving a finding that every individual case “has to be considered” on the basis of

the facts of the case, Justice Masood has decided that the subject petitions brought in

the public interest by parties who are not accused under the Pakistan Army Act 1952

are not maintainable under Article 184(3).

11. The views expressed by Justice Masood are inconsistent and incompatible with

various judgments of the Supreme Court of Pakistan including the clear ratio of

Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504) (the “Liaquat Hussain
 Case”). These are submissions that were contained in Constitution Petition No.24 of

2023. In the Liaquat Hussain Case, petitions were filed under Article 184(3) of the

Constitution challenging the vires of the Pakistan Armed Forces (Acting in Aid of the

Civil Power) Ordinance 1998. In the Liaquat Hussain Case, a nine-member bench

hearing the petitions under Article 184(3) of the Constitution, held that the Pakistan

Armed Forces (Acting in Aid of the Civil Power) Ordinance 1998 was ultra vires the

Constitution.

12. In particular, in the Liaquat Hussain Case, Justice Saiduzzaman Siddiqui (agreeing

with the majority) held:

“11. Examined in the light of the observations made in the abovementioned

cases, I am of the view that the questions raised in these petitions, that the civil

population has a right to be tried by an independent and impartial Civil Court

established under the authority of law, has been negated by the establishment

of Military Courts for trial of civilian population and that the establishment of

Military Courts militates against the concept of independence of Judiciary, are

not only questions of great public importance but they also relate to the

enforcement of fundamental rights of the entire civil population guaranteed

under the Constitution. I, accordingly, hold that the above petitions are

maintainable under section 184(3) of the Constitution.”

13. It is a settled principle of justice that a Judge who has, without hearing the parties,

made a public and written finding in respect of a specific issue between the parties,

recuses himself from any Bench hearing the matter. Justice must not only be done,

but it must also be seen to be done. Justice Masood’s “note” reveals that his view is

that the petitions were not maintainable under Article 184(3). This view is not

expressed as a prima face or tentative view. It is expressed in the form of findings.

Furthermore, it is expressed in findings when he was considering the matter as part

 of a Bench hearing these specific petitions. The findings were given without hearing

either side.

14. Justice Masood’s expressed view and finding given in the context of these petitions

on the issue of maintainability supports the view of the Federation and the other

Appellants in these ICAs. In these circumstances, it would not be fair for Justice

Masood to hear this matter.

15. Propriety demands that the present Bench headed by Justice Masood pass no order of

any sort in this ICA and in all subsequently numbered and related ICAs until the

issues raised by this application have been adequately addressed.

Prayer

For the reasons set out above, the Respondent prays that (a) in the interest of justice,

and to ensure that justice is not only done but also seen to be done, Justice Masood

recuse himself from hearing this appeal and related appeals, and (b) the Bench refer

the matter back to the Committee constituted under the Supreme Court Practice and

Procedure Act 2023 for reconstitution of the Bench which is to hear these appeals.

Such further or other relief as may be appropriate in the circumstances of the case

may also be granted.

11 December 2023 _______________________

Muhammad Amir Malik
Advocate on Record

Drawn and settled by:

Khwaja Ahmad Hosain

Advocate Supreme Court