Picture: Police guarding roads near the Supreme Court before the Judgment
Sindh, NWFP stand out again
The same thing happened in late Z A Bhutto’s case
By Rahimullah Yusufzai: The News, September 29, 2007
PESHAWAR: Why is it so that Supreme Court judges belonging to Sindh and the NWFP often give dissenting judgments in important constitutional petitions having political implications while those from the Punjab usually uphold the government’s stance?
This question arose once again Friday when the apex court gave its verdict on the maintainability of a number of identical petitions, challenging dual offices of President General Musharraf and questioning his eligibility to contest the presidential election set for October 6.
Of the six judges who dismissed the petitions filed by Jamaat-i-Islami head Qazi Hussain Ahmad, Tehrik-i-Insaf leader Imran Khan and others, four belong to the Punjab. They are Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, Justice Falak Sher and Justice M Javed Buttar. Of these four, Justice Abbasi and Justice Khokhar have served as secretary law to the government.
The two other Supreme Court judges who rejected the petitions are Justice Javed Iqbal, who hails from Balochistan, and Justice Abdul Hameed Dogar, who has domicile of Sindh. In the recent past, Justice Dogar served as chief election commissioner of Pakistan. This is the job that has been generating controversy since the creation of Pakistan because the fairness of all elections in the country, with the exception of those held in 1970, has been questioned.
The three judges of the nine-member Supreme Court bench who gave dissenting note in the dual offices case belong to Sindh and the NWFP. Justice Rana Baghwandas, who headed the bench, is from Sindh while Justice Sardar Mohammad Raza Khan and Justice Mian Shakirullah Jan hail from the NWFP.
Both Justice Sardar Raza and Justice Shakirullah Jan served as chief justices of the Peshawar High Court. The former is from Abbottabad district and the latter from Nowshera. They enjoyed good reputation while serving as judges in the Peshawar High Court. By dissenting from the majority decision in this dual offices case, they have suddenly captured the imagination of those struggling for independence of judiciary and the rule of law in the country.
Some senior lawyers in Peshawar said they always expected Justice Sardar Raza to take an independent line in this and other cases pending before the Supreme Court. As for Justice Shakirullah Jan's dissenting note, these lawyers said this came as a pleasant surprise for them and had enhanced their admiration for him.
Former Senator and PPP leader Qazi Mohammad Anwar, who has been an active participant in the lawyers' movement for the independence of judiciary, noted in his comments while talking to reporters on Friday that Justice Sardar Raza and Justice Shakirullah Jan had made the NWFP proud due to their independent judgment in the dual offices case.
Another senior Frontier lawyer, Barrister Baachaa also paid tributes to the two judges for their deep knowledge of the Constitution and understanding of its spirit. He remarked that the Pashtuns were proud of the courage, commitment and integrity of Justice Sardar Raza and Justice Shakirullah Jan.
Friday's events in the Supreme Court reminded many Frontier lawyers about the apex court's majority verdict in the murder case in which former prime minister and PPP founder Zulfikar Ali Bhutto was sentenced to death. The seven-member bench in its controversial judgment sent Mr Bhutto to the gallows by a majority decision of four to three.
The four judges who formed the majority all hailed from the Punjab. They were Chief Justice Anwarul Haq, Justice Malik Akram, who was the father of Attorney General Malik Qayyum, Justice Karam Ali Chohan and Justice Nasim Hassan Shah. The last-named, who later became the chief justice of Pakistan, in the Geo TV programme, Jawabdeh hosted by Iftikhar Ahmad, conceded sometime back that it was mistake to sentence Mr Bhutto to death in the case.
The three Supreme Court judges who gave dissenting notes in the famous case were Justice Dorab Patel and Justice Mohammad Haleem from Sindh and Justice Safdar Shah from the NWFP. The way Justice Safdar Shah was later hounded out of the country is now part of Pakistan's painful judicial history.
As noted Frontier lawyer Athar Minallah recalled, one judge each from Sindh and the NWFP were cleverly removed from the Supreme Court bench that was to decide the case against Mr Bhutto. One was Justice Waheeduddin Ahmad, father of Justice (Retd) Wajihuddin Ahmad, who has been nominated by the lawyers' community to challenge President General Musharraf in the presidential election. Justice Waheeduddin was admitted to hospital in controversial circumstances and withdrawn from the Supreme Court bench. The other was Justice Qaisar Khan from the NWFP who retired from service during the hearing of the case. Both Justice Waheeduddin and Justice Qaisar Khan were honourable and independent judges and General Ziaul Haq's government was concerned that they would acquit Mr Bhutto in the murder case.
Pakistan's political history would certainly have been different, and also less painful, if Justice Waheeduddin and Justice Qaisar Khan had remained on the Supreme Court bench because in their presence the majority of the judges would not have handed down the verdict that came to be known as the judicial murder of Mr Bhutto.
The Bhutto case also fuelled anti-Punjab feelings in Sindh and, to a lesser extent, in the NWFP due to the widespread belief that the Supreme Court judges from the Punjab had sentenced a Sindhi, Mr Bhutto, to death in the murder case. This sentiment still haunts the minds of many Sindhis even three decades after the Supreme Court verdict against Mr Bhutto.
For Details about the Supreme Court judgment in favor of Mushararf, see relevant stories in Daily Times, Dawn.