Allegations against former ISI chief cannot be left unattended: SC

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ISLAMABAD: The Supreme Court on Tuesday observed that allegations levelled by the private housing society CEO against former ISI chief Lieutenant General Faiz Hamid (retd) cannot be left unattended for being extremely serious and, if true, would undermine the reputation of the federal government, the armed forces, and Pakistan Rangers.

A three-member bench of the apex court, headed by Chief Justice Qazi Faez Isa and comprising Justice Amin-ud-Din Khan and Justice Athar Minallah, observed this as it issued a written order for the November 8 hearing of the petition filed by Moeez Ahmed Khan, chief executive officer of a private housing society, against the former general under Article 184(3) of the Constitution. The bench had disposed of the matter on November 8, 2023.

The written order, authored by Chief Justice Qazi Faez Isa, stated that the applicant, Moeez Ahmed Khan, has alleged that Lt Gen Faiz Hameed (retd), who was then serving in the armed forces and working with the Inter Services Intelligence (ISI), misused his office, and on his directions crimes were committed against the applicant and his family, as under:

(1) Personnel of ISI and Pakistan Rangers (Punjab) raided the applicant’s residence and business offices;

(2) Detained the applicant and his family members;

(3) Robbed the applicant and his family members of their properties;

(4) Robbed the applicant of his business properties; (5) Compelled the applicant to transfer his business – Dynast Associate/Top City Housing Scheme – into his nominees names;

(6) Had false cases registered against the applicant, his family and employees; and (7) He and those under his command and Pakistan Rangers (Punjab) abused the powers of their offices while serving in the Armed Forces.

The order stated, “We enquired from the learned counsel how Article 184(3) of the Constitution could be invoked in respect of a private complaint/grievance, how the application could be categorized as a matter of public importance and enforcement of which Fundamental Rights was sought,” and added that Hafeez-ur-Rehman Ch (counsel of the applicant) stated that the respondents No. 2 to 5 had violated the Fundamental Rights of the applicant when they used their important positions. He further states that no authority would entertain acomplaint/grievance, let alone proceed against them.” The order noted, “The learned Additional Attorney-General for Pakistan (AAG) was called upon to assist the Court and was enquired whether the applicant has any other adequate alternate remedy, and whether his apprehension that his complaint/grievance would not be heard is correct.” The order reads, “The learned AAG stated that there are a number of remedies available to the applicant, including approaching the Ministry of Defence as the complaint/grievance pertains to a period when the said respondents were serving officers in the Armed Forces and/or to file a criminal case, including one for malicious prosecution, and/or to file a suit for damages, or to do all these.” “The learned AAG also stated that if a complaint is addressed to the Ministry of Defence of the Government of Pakistan it will be given due consideration,” says the order, adding “the allegations are of an extremely serious nature, and if true, undoubtedly would undermine the reputation of the Federal Government, the Armed Forces, ISI and Pakistan Rangers, therefore, they cannot be left unattended.”

“However, the nature of a case filed under Article 184(3) of the Constitution is different from other cases, for a number of reasons. Firstly, the Supreme Court under Article 184(3) of the Constitution exercises original power, and whenever 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.” The order noted, “The applicant however, apprehends that his complaint/grievance would not be entertained by the Ministry of Defence, because the said respondents had held senior positions in the Armed Forces. 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, therefore, the apprehension of the applicant is misplaced.” “Accordingly, if the applicant submits a complaint/grievance to the Ministry of Defence of the Government of Pakistan, it shall be dealt with in accordance with law”, says the written order, adding that the applicant will also be at liberty to avail of the abovementioned, and any other legal remedies, in accordance with law. This application is disposed of in the abovementioned terms.” The bench also declared as illegal, the proceedings initiated by former Chief Justice Mian Saqib Nisar in chamber, and held that the Chief Justice or Judge of the apex court, when sitting alone in chamber, can only pass orders as envisaged in the Supreme Court Rules, 1980.

The bench had conducted the hearing on the instant matter on November 8, 2023. “We have heard the learned counsel and the learned AAG and have considered the matter. Neither can the Chief Justice nor any Judge in Chamber alone can pass an order beyond what is provided for in the Rules”, says the written order, authored by Chief Justice Qazi Faez Isa. “Therefore, the proceedings that the former Chief Justice undertook with regard to the said matter, in our considered opinion, were not legal proceedings, and were of no legal effect”, the court noted down in its written order.

The court noted that the Human Rights Cell can only consider the complaints it receives, and if the same meets 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, and put it up for consideration of the Chief Justice of Pakistan, and the Chief Justice in 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 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”, says the written order. The court noted that Mrs. Zahida Javaid Aslam had written to the Human Rights Cell in the Supreme Court and leveled had serious allegations against Moeez Ahmed Khan and the matter was put up in Chamber before the then Chief Justice, Justice Mian Saqib Nisar.

The court noted that as per the report of the Director-General, Human Rights Cell, Justice Mian Saqib Nisar had ‘by order dated 3.11.2018 summoned both parties for hearing for 06.11.2018 and 15.11.2018 in Chamber of the Chief Justice.’ Thereafter, as per the said report, the Counter Terrorism Department and the Capital Police Officer, Rawalpindi were activated”, the written order reads, adding that learned (counsel) Hafeez-ur-Rehman states that the dispute between the private parties was attended to and decided. The court noted that a number of senior counsel were present in Court and Aamir Rehman, learned Additional Attorney-General for Pakistan (‘AAG’). Farooq H. Naek, Senior ASC, and Salman Aslam Butt, a former Attorney-General for Pakistan were asked to assist the Court on the question of whether the Chief Justice could pass the said orders and do so in his Chamber.

“They unanimously stated that the power of the Chief Justice in Chamber is circumscribed by the Rules and he could not have passed such orders”, the written order states adding that they stated that a Chief Justice, or a Judge of the Supreme Court in Chamber can only pass orders envisaged in the Rules. But, neither the rules nor any law permits that parties be summoned, the registration of cases and/or order investigations to be undertaken. The written order also included additional note of Justice Athar Minallah wherein the judge stated that they have been informed that the Human Rights Cell was set up in the Supreme Court building in 2005 and it has been functioning since then. They judge further stated that they were also informed that it 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 noted adding that 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 proceedings, orders, directions and letters are taken as those of this Court and, therefore, cause grave miscarriages of justice because they can be abused”, Justice Minallah held. The Judge said that the Registrar of this Court may, therefore, restrain the Cell from undertaking any activity, proceedings or to issue summons, orders, directions and letters having no legal backing.

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