Having redirected the case against former spy chief Lieutenant General (retired) Faiz Hameed to the 'relevant forum', Chief Justice of Pakistan Qazi Faez Isa on Tuesday observed in a detailed written order that there remain extremely serious allegations against the country's former top spy which cannot be left unattended.
"The allegations are of an extremely serious nature, and if true, undoubtedly would undermine the reputation of the federal government, the armed forces, the ISI and Pakistan Rangers, therefore, they cannot be left unattended," observed Chief Justice Isa in a written order of the property dispute case moved by Top City-1 housing society's owner, Moeez Ahmed Khan.
Chief Justice Isa also wrote a separate order specifically addressing procedures for in-chamber hearings. The order also contains an additional note from Justice Athar Minallah.
Moeez had filed a petition with the top court's Human Rights Committee (HRC), seeking action against former Inter-Services Intelligence (ISI) Director General Lt Gen (retd) Faiz Hameed over his alleged role in attempting to usurp the society and stealing valuables from him.
Moeez alleged that Gen Hameed had misused his offices and that crimes were committed against the applicant and his family on the officer's directions.
He claimed that personnel of the ISI and Pakistan Rangers (Punjab) had raided his residence and business offices. Not only did they detain him along with his family, but they also robbed him and his family members of their properties.
The housing society's owner added that he and his family and employees were implicated in false cases. He stated that Faiz Hameed and those under his command and Pakistan Rangers (Punjab)
abused the powers of their offices while serving in the armed forces.
However, when a three-judge bench took up Moeez's petition, the court was of the view that the case was not one to proceed under Article 184(3) and urged the petitioner to seek a remedy before the relevant forum.
"The nature of a case filed under Article 184(3) of the Constitution is different from other cases for a number of reasons," the written order observed.
Cases under Article 184(3)
The top court explained through its order that Article 184(3) exercises original power, and whenever an original power is exercised, it must be done cautiously.
"Secondly, where there exists other forum(s) to attend to the same, it is best that they first do so. Thirdly, against the decision of a High Court, appeals may come before this Court under Article 185 of the Constitution. Fourthly, direct intervention by this court under Article 184(3) of the Constitution may adversely affect the rights of others," it added.
The court noted that Moeez may have reservations that a complaint filed in the Ministry of Defence would not be entertained because the accused held senior positions in the armed forces.
"However, the learned AAG has assured us that the complaint/grievance will be given due consideration, and we have no reason to doubt this statement made on behalf of the government of Pakistan," the court noted in its order, adding that the apprehension of the applicant is "misplaced."
"Accordingly, if the applicant (Moeez Ahmed Khan) submits a complaint/grievance to the Ministry of Defence of the government of Pakistan, it shall be dealt with in accordance with law," Chief Justice Isa observed as he disposed of the matter.
Addressing the issue of in-chamber hearings raised during the case, Chief Justice Isa termed in-chamber hearings of the property dispute by then chief justice Saqib Nisar as of 'no legal effect'.
"Neither can the chief justice nor any judge in the chamber alone can pass an order beyond what is provided for in the rules," observed Chief Justice Isa in the separate written order.
"Therefore, the proceedings that the former chief justice (Saqib Nisar) undertook with regard to the said matter, in our considered opinion, were not legal proceedings and were of no legal effect," the top court held.
Despite questions raised on the legality of the top court's HRC, CJP Isa clarified its role and powers.
"The Human Rights Cell (HRC) can only consider the complaints it receives, and if the same meet the test of Article 184(3) of the Constitution, that is, the matter is one of public importance with reference to enforcement of any of the fundamental rights, put it up for consideration of the Chief Justice of Pakistan, and the chief justice in the chamber could only direct that it be
numbered and put up for consideration in court."
"However, since the promulgation of the Supreme Court (Practice and Procedure) Act, 2023 (‘the Act’), the Chief Justice has lost even this power as now the Committee, under section 2(1) of the Act, comprising of the Chief Justice and the next two senior Judges, will determine whether the matter should be numbered and fixed in Court for hearing," he further clarified.
Justice Minallah's note
Justice Athar Minallah, a member of the three-judge bench that heard the case, concurred with the opinion of Chief Justice Qazi Faez Isa.
In his additional one-page note, Justice Minallah has maintained that the bench had been informed that the HRC was set up in the Supreme Court building in 2005 and has been functioning since then.
The bench had also been informed that HRC was not established under any law, nor did its proceedings, held by the chief justice in his chambers, or orders/directions and letters issued to public bodies and organisations have any legal backing.
"The orders, directions and letters in the name of this court create a wrongful impression of being judicial," Justice Minallah observed.
"The summons issued to parties and the proceedings held in the chamber of the chief justice or a meeting room, rather than in open court, are likely to infringe the right to a fair trial and due process."
"The cell is bereft of jurisdiction or power to, directly or indirectly,
perform any functions or exercise purported powers which are judicial in nature or may affect the rights of the parties in any manner," Justice Minallah observed.
"The only function that the Cell may perform is to receive representations, letters or correspondence from the general public and then place them before the chief justice to be dealt with under the Rules of 1980."
"Any proceedings undertaken or held by the chief justice or the director general and summons, orders, directions or letters issued pursuant thereto are declared as illegal and ultra vires the Constitution," Justice Minallah observed.
He further recommended that the Registrar of the Supreme Court may restrain the Cell from undertaking any activity or proceedings or to issue summons, orders, directions and letters that have no legal backing.