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Jurists stand divided on the fate of Panamagate case bench
New bench would start hearing from zero, says Advocate Shahid Rasool
No need to reconstitute bench if Justice Azmat couldnt join: Justice Wajih
MIAN ABRAR and SHAH NAWAZ MOHAL
It seems that the Panamagate case hearing may not be possible even from this Monday, as was expected. On top of that, the announcement of Supreme Court benches for the next week suggests that the judges that were part of the Panamagate bench have been included in other benches.
Though there is no official word about the recovery of Justice Azmat Saeed Sheikh, who had suffered a heart attack last week, the reports coming from Rawalpindi Institute of Cardiology (RIC) are worrying as the doctors are mulling further medical procedures.
If things do not improve, medics may go for a surgery, a highly placed source told Pakistan Today, requesting not to be named.
When contacted, Shahid Hussain Kamboyo, Public Relation Officer, Supreme Court, said that he has no comment to offer on the health condition of Justice Azmat. He said any comment could only be made by the doctors at RIC.
With no official word over Justice Azmat Sheikhs condition, questions are being raised in political and judicial circles about the fate of the case.
Jurists look divided over the future of the bench hearing the Panamagate case.
Advocate Supreme Court Shahid Rasool says that if Justice Azmat Saeed could not continue with the bench and a new bench has to be formed, the case would have to start afresh.
If Justice Azmat could not continue with the bench, the bench will be reconstituted and the case would start from zero. This is exactly what happened when Justice Jamali retired and the new bench started the case again, he added.
Noted analyst Justice (retd) Wajihuddin Ahmed says that there is no need to reconstitute the bench even if Justice Azmat Saeed could not continue with the hearing of the case.
In my view, there was even no need to reconstitute the bench when former Chief Justice Jamali was about to retire. The bench could have continued without Justice Jamali, he said.
Citing a reported case in PLD Karachi 1998, Justice Wajihuddin said that in year 1997, a bench of Sindh High Court took up a petition filed by PPP leader Asif Ali Zardari.
Mr Zardari had been elected as Senator but the then Chairman Senate Wasim Sajjad was not issuing production orders for him so as he could be released from jail and take oath as Senator. Wasim Sajjad argued that he could issue production orders for a senator who had taken oath but he could not do so for a person who is jailed and has not yet taken oath, said the former judge.
Justice Wajih said that the bench was headed by Chief Justice Sindh High Court Justice Mamoon Qazi while he (Justice Wajih) was also a part of the bench as senior-most judge.
Justice Wajih said that while the hearing continued, Justice Qazi was elevated and sent to the Supreme Court and he became the Chief Justice.
But I continued the same bench and concluded the hearing. I directed Chairman Senate to issue production orders for Zardari and enable him take oath. So if a judge misses the hearing, the bench can itself decide to continue the hearing. No need to consult the chief justice, he added.
Its a prerogative of the chief justice to form a bench but the CJ does not have powers of an arbitrator.
Asked about another identical case involving his late father Justice Waheeduddin, Justice Wajih conceded that during the trial of former PPP Prime Minister Zulfikar Ali Bhutto, his father Justice Waheeduddin, the then judge of Supreme Court, had fallen ill and could not continue with the case.
Again, the bench was not reconstituted, rather the same bench continued with the hearing, he added.
It is pertinent to mention here that top jurists and media reports at that time claimed that the then military dictator General Ziaul Haq had pressurised late Justice Waheeduddin who was not inclined to give a judgment against Bhutto. Bhuttos hanging has since been termed as a judicial murder even by bitter opponents of former the prime minister.
Asked whether if a new bench is formed, the case would start afresh, Justice Wajih said that even if a new bench is constituted, the case would start from where it was suspended.
Look, Panamagate case is almost complete. But even if it was halfway, there is no need to start the case afresh. The new bench would pick up threads where the former bench left, he concluded.
Senior lawyer S M Zafar also agrees with Justice Wajih.
The procedure in such a scenario is that a new judge is included in the bench in place of the one not able to continue anymore. However, there is also another way. When former Chief Justice Anwar Zaheer Jamali was due to retire and another judge, Justice Amir Muslim Hani, was asked to recuse himself, the new Chief Justice Saqib Nisar formed a new bench headed by Justice Asif Saeed Khosa and distanced himself from the proceedings, he said.
Zafar said the bench heard the case from the start due to inclusion of two new judges. The situation will become clear in the coming days once the doctors report on the condition of Justice Azmat Saeed Sheikhs health is produced, he said.
Mr Zafar also added that if Justice Sheikh can return to the bench and assume his responsibilities soon, the bench may adjourn the hearing and wait for him in the meanwhile.
However, if it takes long for him to recuperate, a new member can take his place in the bench, he said. When asked whether with the inclusion of new judge the hearing will start anew like before, Mr Zafar said that if a new judge is included at this stage of the case, brief points will be taken and old members of the bench will update their new colleague on the case.
Majid Bashir, Advocate Supreme Court, also echoed the two.
According to the Supreme Court rules, if a judge is missing from the bench due to physical infirmity or he recuses himself citing personal reasons, and if the replacement judge finds the case near end, he can demand that a briefing be given to him or he can say that the arguments should continue, hell read the record for the background. It is the sole discretion of the judge how he wants to proceed. I personally think, keeping in mind the advanced stage of Panamagate hearing, the possibility of starting hearings anew are slim, he concluded.
http://www.pakistantoday.com.pk/2017/02/04/panamagate-case-not-likely-to-resume-next-week-either/
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