Kanwar Naveed Jameel and Others (Petitioner) VS Province of Sindh & Others (Respondent)

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'.t ET TrlE HON'ABLE HIGH COURT OF SINDH, AT KARACHI'

IORIGINAL CONSTITUTIONAL JURISDICTION)

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coNsT. PETITION / P.l.L. NO.D- ' oF 2O2L

I.XAJ,IWAR NAVEED JAMEEL S/O XANWAR JAMEEL AI{MDD'

i ] HOUSD NO. 160, BLOCI( B, MOIIALLA UNIT NO,2' LATIFABAD,

:-,:-IRICT HYDERABAD.

:ti:c $ 41304-0863783-7 IP1, PS-127 Karachi Central V :,- ii;elow No. rs-a, PHASE t, DHA, NEAR DEFENCE HEAD oFFICE' r]RACHI:

2.RrsrrwER ZEHRA D/o SYED RAslrID MEliDI, E O HOUSE IIO, i79.D, I(,D A', SCHEME NO'1, TIPU SULTAN ROAD' i{RAC}II, :\rc # 42201 73661I3-8 !I ]i,A, . RESDRVT'D SEAT ;

3.SYDD IIASHIM RAZA S/O SYED NAJAM'UL-IIASAN,

i o gousg ttto.zsg+, sr No 7, MoHALLAH AREA 36-c, SHARIF :OLONY, LANDHI, DlSTRICT MALIR, KARACHI, c\tc * 422A1171a224 3

]{.P,A., PS-94 KORANGI KARACHIII];

4.GIIULAM GILLANI S/O GULSHEED AHMED KIIAN'

P/O IIOUST TO,P' T:,MOHALLAH KORANGI NO 2,SECTOR 33/C'

KATTACI{1.

cNrc il 42201 99 L 1085-3 M,I'.1\., PS.g6 KORANGI KARACHI-V;

s.JAVED HANTT KIIAN S/O MUHAMMAD HANIF KHAN'

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R/O I{OUSE NO 98, MAIN SABA AVENUE, PHASD'VI, DIJA,I{ARA

CNIC } .1i) !

M,P.A,, PS-95,KORqNG], I(AFACHI.V;

6.WASEEM UDDIN QURESHI S/O RAFI UDDIN QURESHI,

n/o uousu l'lo.n-tsz,sECTO111l C-3' MOIIALLAH SIR SYDD TOWN, NOIiTH ]Gt'AC I1I, CENTRCL, 1GRACHI CNIC d qlr!I-,4! rll) - )

M,P,A,, PS 123, XARACTII CENTITAL I

PETITIONER{S)

VERSUS

1.THE PROVINCE OF SINDH

THROUGH ITS

CHIEF SECRETARY, GOVT. OF SINDH,

SINDH SECRETARIAT,

KARACHI;

2.THE SEC]RETARY,

SERVICDS, GENERAL ADMIN. & CORD. DEPT.

GOVT. OF SINDH, SINDH SECRETARIAT,

l'+r

ORDER SHEET

IN THtr HIGH COURT OF S INDH, AT KARACHI.

C.P. No.D-23 of 2022.

Date Order with signature of Judge

1.For orders as to maintainability of instant Petilion 2. For orders on statement dated 23.05'2022 / CMA No'15095/22 M/s. M. Tariq Mansoor and Ahmed Zameer, Advocates for the Petitionels' vi. Sulrr,u.t tatiU,rddit, Advocate Ceneral Sindh a/w Mr' Muhammad Yousuf Rahpoto, Assistant Advocate Ceneral' Mr Munir Ahmed Advocate for the Inlervenor No I Laghari' Aclv()catc fr.li. la"t"tt Kumai G. Karara, Advocate a/w Mr' Nabi Bux fol Respondents No.6 & 7.

Mr. Sarniullah Kakar on behalf of C'l5P'

datt:J Mohammed Kalim Khan Agha J. The Petitioners have filed siatement { '23.05.2022 whereby they have sought the recusal of one of us (Moharnmt'tl establishment ot 'l Karim Khan Agha J) from hearing this Petition and sought the of this court h) targer bench of 10 Juclges of this court by t\e Hon'ble Chief lustice h"ar this pelition.

Turning to the first asPe.t of the statement namely the recusal of Mr Muharimed l(arim I(han Agha J. from hearing this petition' By way of background this petition was originally fixed befole DB l

lealned counsel for thc however on account of the prima Iacie (mis)behavior of as not beitrr..'

petitioners one of the learned Judges of that DB marked the Petitioi him. Hence the petition was Placed belore this Dts Vll (this DB) for hearrng llrit

DB helcl numerous hearings, without comPlainant, and hatl fixed ihe Petition l('r one o[ tht arguments on maintainability on 23 05.2022 at 08'30am Unfortunately was Pla'cd members of this DB was not available on that day and the Petition ia'ic before DB VI where again the learned counsel Ior the petitioners Prima (mis)behaved with the members oI the Bench' The Petition has now been placccl

bctorc lhis IJB as Per rotter.

2.ln the Petitioners' statement and arguments before lhis bench thc of his petitionerc llave mainly sought iecusal of the concernecl iudge on account perceived imPartiality. It is well settled by now that it is uP lo a iudge base(l orr

his own conscience whether he decides to hear a case or not' ln this lesPeci

{t 1-

reliance is placed on the case of Independent Media CorPoration v Federation of Pakistan (PLD 2014 SC 650) where a iudge declined to recuse lTirnself fronr a to a Palty to iho case in the face oI a Perception being created that he was related , the objectirlg case ot whele obiections were made to a Particular judge so that counsel could attemPt to get benches of his own choicc where it was held as

uncler

nl titt .r " 10. ln the abol)u cont..:il, il mny be LLset'ul to rccortl tlnt Rll liliinllts (ll n/€ t tenLpts to aao hcnring before certfih Be cll(s bnt fil tinrcs st nlfutttl)is or" not ,uell inLefitionetl. Thire rnay eoen he nttet pts to inli idate or nliglt judges ot t stitutions o.f the State anrl tfureby, lo loderntine sudt indi?titltLtls ot' institutions.

11.ll is in this contexl tlLat tToo i slonces ttrL be referretl to byn t?lt"r rts' Wltt tt 1'

ttnu'.tal >. kln,tflp l) tt'o.n luLlRP ol !1tP H$h "utl- I nttt|ed -tntttt thprcin that I hnd ;l|i.tt hlalions a'ih doncn loll o1 lltP oppa'tlc fattJ' lln -'t'l lctl?r tL'at,tt.uloled by nr nmon+sl lhr ladtle* ol the pnrtrs'. 1lt'- p"t'e't5 ''1'- nuroorlcdl,t,iol. lhi5 L'llPt ', a' sumntoned rn lourl on th, [alla'rirg dt' t 't' 'onni"rud ,i Cattrl- HPr dP tanor itl Courl thftcl?d lllol 'he ru" n -tmpl' '''lltp'- .',i,,,on she ndnritted lltnt slr lrrolc tht: -adl?ltt't' Wlt n n'lcd rttt't 'lr dt't slk' replicd llnl sle ditl nol lrant ll9 cnsc to bc hutd by ttte ui :.'as rtrh'istl by.tt

1.lht t|orlilvruise n on i, the Ttillnge to lttrifr the lelter ta fi? and is n 'ansequcfic? cnse rriould be orrlercd to be llaced hefare so c ollLer Bncll- This aPPtoaclt is

unfotlunate but is pr?ualP t ifl our soci'ty l dges cannot be lr!'ktd ltu su'ch tactics. lf lhiy suecumb lo s ch la(tics thcy urill lhcreby e)tfo|'\t liigon* ona i"oAti theln to control fkation of cases and constihttiolt ol llenches.

12.Therc is tlnother instnnce relaLifiS to t cofin1?rcil n|ller in *ich tt l(ll(t rL'asrcceiztedbynrc.'lhisletterlotlspurportedlyt'tononeofthePnrliestollt(, case. ln tlrc leiter it tuas stated that I lnd been a lmotler for one of tl? pttics n l ,t,n\. lhptclorc, bnsetl rn fo,our af thP ofpostb sidP' l] ' lctlP'

F

tltr "1' ,t,,trlnt.d on@ngsl tfu laatte.. ol tle yattte" nt *'ilt polnl lll( P'iltJ 't''- otmorted lo hnie tffiltcn tk lettPt 'tood up tn Coutt nnd <tnt(d l14t lh lt"'l tt' t 'r ritten th letler nnd ,n [n,l hc r"ou]d t anl llr B 'r'(tt 'nt ' h' nttJ t'u ' tr't 'r t llrc,a<t

'13. Thcse instances show that therc can be rcaso'Ls, other than thosL' that fieet the eye, @hich fiay ,rlotilate a retnark or comlnent ll iudgcs Llo not deal fnmly with such refia .s (\oherc unfounded) this may encouug-a urscrupilousZt unitfotlneil elemeflts into saying thittgs tohich fiav etod? the sta dirlg, respect and credibilitu ol the Court The henring af lltis 'ns( ttl intentnls toia,,/ is silnifLcfint. Coufis are fiot to succtt tb to any renutrl', defanatory ir othinttise lt is the co science of the ludge himself tL'hitll mtst determine his decision to sit ofi a Beftch or 'tot "

3.As mentioned earlier in this order the learned counsel for the petitioners appears to be using a tactic whereby through his (mis)behavior in couri hc

attempts to cow down our brother judges so that they may be temPted to mark the case not before them so that ultimately learned counsel for the Petitiol'lcrs and migllt get a bench of his own choice which condLlct cannot be Lountenairtet'i

I

Lo be on thc rrs(' must be discoulaged esPecially as this unethical Practice aPPears thcse days. Such tactic was exPosed by the SuPreine Court in the case of General SC 585) whele' it (R,) Pa ez Musharraf v. Nadeem Ahmed Advoc;te (PLD 2014 was noted as under;

n nl-' " .'

b. lut18c5. tl ,nav h, aal?(). do cn'ounl ' ollelnlon: of b"t ttt't .tLltcir,tn:onte of u'htch mn lbe txpre'scd tn lanStnSc rlllh rtlPr- ttl" t l\ 'tt'tt rttnl' tlt ij,',outt, tott speech a, outiight riltfrcation ba'eJ on nnl r ln ath"r such ' ifualion lo rlou.l luc ludgnt,int t't ' It,dge'by t,an,ng doL> notTllotr tudi.irinnller- Ft'fi c^tffncht derogntort lnngL'age u\td nilltnrl I'd3'\ r/'' ' llt ntgltghle nuntb?t ot \onl"tttl-l rtol. bu tltPlt (r?nle bia-. is t5 ertltnl JNnl ,r'"'in,"lA on i.andalt\dlon ol ludy' lnsnp l'ndinB lo n >rnl?n'P "l'!-'' <' )2-'l-' ,,,', titua Soz Uuhantnad lnlnrr. ldernlton al ln|t'lnr tll D )012 .\ eorrt'- thcfftarr. ,n\nat d', itl( q'rnians tl yet'rtt'd h't,' ,hu ntttPltttS ltt tnlrrtdt,ol ond yer>onnl t'trr-' olnn rggPicd fcllltontr nnd ll u' ttrtl." ttn ' , n.? ll tLnr rt1nt,'J oltt l^ ML Prrdtl' \'t1t' t Attt o nl" \ttft tttt \ ()t'tl tlt '1 -' ,*i,i,l,,i,l, pln"rtnn o[bn' 'ottld ht modonhrt'tot tP'tt-nl at.t.l 13' tt'tht" t"tnu'c ttle petitore"hod done thtnS'orlnd lnlt: un'an\lthttinnl -/"r""{"''r'' ri nrnt", thef lurtnr- rould bi "ntple Jor."rtl an1 l'l€nrl not tlttlltt' tt to hc hcoti by a pnrh.ulat l d|c lo 'tntl lttttlmS tbuscs tll 'u'lt lttde" " I 'i)rio'ntu n ariri nit the ludge tt'is hiasetl ngninst hir8o1g'Pcr'tPtiott 'nse tirirrtt ' Fot litisants 1l tlk'ir f is i ryorLant to hinr this in ttind trthih d htn5'

againsl a ltdge."

4.It is also signilicant tl-Iat learned cour$el for the Petitioners raise(l n() whom they havt' objection to the member of the bench hearing the case against the Petitioncrs now sought recusal on four sepalate hearin8s since Prima facie reason or ailothcr seemed satisfied that the case was not Procecding for one once the bench Put mainly at their behest and only moved the recusal statement the learned counsel for the Petitioners on notice to satisfy the court as thr'

maintainability of the Petition.

is for thc 5- As mentioned earlier in this order il is well settled by now that it recuse from a case or not' The case lo*' Judge himself to determine whether to o[ discussed above discourages recusal where it is aPParent that the PercePtion bias/impartiality is being createcl by a litigant or a counsel to divert a case ltom a as m()rt' Bench which he perceives as unfavorable to a Bellch which he Perceives that thc iavorable. To succurnb to such tactics would not only send the message ) judges can be cowed into submission by such tactics, it would also eiode Public confidence ir-r the courts and at the same time it would increase the work loarl ()l

the bench to whom the case is passed on to.

6.As such the concerned.fudge (Muhammed Karim Khan Agha-J) whose recusal is sought has decided to hear this Petition

of this court' With regard to the establishment of a larger bench of 10 Judges was ir / 7. The Iearned counsel for the Petitioners contended that this particular comPlex case ancl required the formation of a larger bench of lt) make such a request k) Hon'ble Judges of this court ancl tl1at this bench should was reluted by learno'l the Hon'ble ChieI Justice for this purPose' This Position counsel for the resPondents who contended that it was a regular case whi'h larger bench l(]t iivolved no overly comPlex questions of law so as to iustify a alone a Bench oI10 Judges of this court being constituted to hear the Petiiion

On a brief review of the Petition we finLl that there are no unclue legal

this petition btirrli complexities ot other comPelling reasons which would iustify bench of this court to hear lhis referrecl to the Chief Justice to establish a larl;er which need to bc petition esPecially givei the back log of cases in this court bench was not made whcn attended to. lt is notable that this request for a larger 8 separate hearing dates / the petition was filed but instead has been made after the intention o[ which indicates that this is an after thought prima facie with counsel k)r the delaying the hearing of this Petition for which the learned day of hearing' KeePinl' irr petitioners obtained an ex Parte stay order on the first ask lhr vicw the above discussior-t on this aspect of the case tlre request ro bench is also dismissod' Hon'ble Chief of this Court to form a larger 10 member made in thc

9.The uPshot of the above discussion is that the requests Statement/aPPlication are dismissed and thcse are the reasols for our sh()rl

order of even date-

10.Before Parting with lhis order however it Pains us to record that when the stateme[t/aPPlication was dismissed vide the aforesaid shoit order and

was aske'l t" lealned counsel for the Petitioner Mr. Muhammad Tar'iq Mansoor rather than Lioing so make his submissions on the maintainability of the Petition he started to make scurrilous, scandalous, olfensive and insulting rerna|ks unabated lor about against this bench and the judiciary which tirade coliinued ) 15 to 20 minutes desPite the learned counsel for the Petitiollers being aske'l orl ar-rel the ler'lt'r numerous occasions to leave the rostrum (which he r'efused to clo) of this coult calling other cases listed for hearing which lead to the disrlrissil r)l

his petition for non Prosecution vide the above mentioned short order' At one

point learned Advocate Geneial's assistance was sought who was unable n)

rostrum anrl on th?

persuade the learned counsel for the Petitionerc to leave the

Aa''

L 1)

bench's query as to the conduct of the learned counsel oI the Petitioners th('

learned Advocate Genelal Sindh advised the bench that the conduct oI the on the face Icaflled counsel for the Petitioners Prima facie amounted to contemPt v largely on account of the court. By however showing maximum judicial restraint potentially damaBirrl:

of the young age of the petitioner ancl with a view to avoid jnitiating su'h his career this bench decidecl by the skin of ils teeth against leatned counsel lor' proceedings. Such prima facie (mis) behaviour on the Part of of an advocatc the petitioners llowever is highly deprecated and is not exPected is cautionecl a:

of the high court alld as such learned counsel for the petitioners to his future conduct when appearing before this Court lest he migllt iac'

appropriate proceedings in accordance with law'

J E ot -(

JUDG