ISLAMABAD: The Supreme Court on Monday expressed regret over the circumstances that forced it to take action against its sitting judges who had taken oath under Provisional Constitutional Order (PCO) imposed by then president Pervez Musharraf on November 3, 2007.
A five-member bench of the apex court, headed by Justice Sair Ali and comprising Justice Mehmood Akhtar Shahid Siddiqui, Justice Jawwad S Khawaja, Justice Khilji Arif Hussain and Justice Tariq Pervez, heard the case against PCO judges.
Wasim Sajjad, the counsel for Justice Khurshid Bhinder, submitted that if a judge committed contempt of court, he could only be tried in light of Article 209 of the Constitution.
Justice Tariq Pervez remarked that the article was silent on how to proceed and did not specify how to prescribe a punishment in this regard.
Wasim Sajjad argued that in the Chief Justice Iftikhar Muhammad Chaudhry case, Justice Khalilur Rehman Ramday wrote that to make a judge dysfunctional from his official duty amounted to suspending him.
Sajjad told the bench that the court should be compassionate in this case. He submitted that till November 3, it was a departmental violation until the October 6 notice was converted into a contempt of court notice.
Justice Tariq Pervez said that it was the outcome of the November 3 circumstances. He asked as to why a trial cannot be initiated against a judge if he committed a murder.
Raza Kazim, the counsel for Justice Hamid Ali Shah, argued that according to Article 209 of the Constitution, a contempt notice could not be served on a sitting judge. The article provided that a judge shall not be removed from his office except in a manner prescribed in the Constitution, he added. He said that a sitting judge could not be tried or punished until removed from service by the Judicial Commission.
Justice M Shahid Siddique said that few years ago, an FIR had been filed against a sessions judge in a murder case, and he contested his case in the court and got bail.
Earlier, the PCO judges’ counsel Abdul Basit argued that the case could not proceed until a ruling on the intra-court appeal. His contention was rejected by the bench.
The hearing was later deferred till Tuesday.
Published in The Express Tribune, November 30th, 2010.
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