‘March 30 order dictated in my absence’

Justice Miankhail says there is need to first resolve controversy surrounding SC’s March 1 order

ISLAMABAD:

Citing reasons for his recusal from a bench that was hearing the Pakistan Tehreek-e-Insaf (PTI) plea against postponement of polls in Punjab, Justice Jamal Khan Mandokhail has said the order issued after Thursday’s hearing was dictated in his absence and without consulting him.

Justice Mainkhail on Friday recused himself from hearing the case, a day after the recusal of Justice Aminuddin Khan who was also a member of the five-judge bench formed by Chief Justice of Pakistan Umar Ata Bandial to hear the PTI’s petition.

According to a two-page note issued by Justice Miankhail, he wanted to express his views when Justice Aminuddin decided to recuse himself from the case in view of the March 29 verdict of an SC bench which held that hearing of all suo motu cases be postponed till amendment is SC rules.

“However, the Hon’ble Chief Justice and other members of the bench rose, therefore, I was unable to do so. Subsequently, I remained in my chamber for a reasonable time, but received no information from the Hon’ble Chief Justice regarding further proceedings into the matter.

“When I reached home later the same day, I received an order dated 30.03.2023 from the Chief Justice for my signatures as a member of the bench,” he noted.

Reproducing the brief order which said that Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar disagreed with the March 29 order of the SC bench, Justice Miankhail added that the order was dictated in his absence.

“Admittedly, the order was not dictated in open court, instead it was dictated in my absence and without contacting me for participation in the deliberations. I felt that the three learned members of the bench, for reasons best known to them, opted not to involve me in the consultation.”

He said the PTI’s petition was the outcome of the previous proceedings “which were dismissed by two honourable members of the bench –Justice Yahya Afridi and Justice Athar Minallah—through their respective short orders, followed by myself and Justice Syed Mansoor Ali Shah”.

“In this behalf, we issued our detailed reasons on 27.03.2023. Right from the first date of hearing of the present matter, I wanted this bench to resolve the controversy of the order dated 01.03.2023 and its Order of the Court, which has still not been issued till date, as it is of great significance to the present matter.

“No heed was paid to this issue, despite my raising it repeatedly. The learned Attorney-General, members of the legal fraternity, and learned counsel for the political parties also requested for resolution of this issue, but received no response from the other members of the bench.”

Justice Yahya Afridi on Friday also issued a 7-page detailed order citing reasons for dismissing three proceedings with regard to delay in announcement of polls in Punjab and Khyber Pakhtunkhwa.

“Firstly, the Intra-Court Appeals filed by the Governor of Punjab and the Election Commission of Pakistan against the judgment of the single bench [of the Lahore High Court] dated 10.02.2023 were pending before the Lahore High Court…“The Peshawar High Court was also hearing a Constitutional Petition seeking similar relief for appointment of the date of election to the Provincial Assembly of the K-P;
“Secondly, the judgments of the pending proceedings before both the high courts could be challenged before this court under its appellate jurisdiction envisaged under Article 185 of the Constitution,” he added.