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‘Colourable’ conduct lands LHC judge in trouble
 
 
 
‘Colourable’ conduct lands LHC judge in trouble

LAHORE - The Supreme Court of Pakistan has held Justice Mazahar Ali Akbar Naqvi of the Lahore High Court responsible for ‘misconduct’ and expressed extreme displeasure over years’ long pattern he followed to grant bails to the convicts.
A three-member bench headed by Justice Asif Saeed Khan Khosa found Justice Mazahar Naqvi guilty of misconduct in a 39-page judgment while dismissing two criminal review petitions – one moved by him and second by a murder accused, Nazir Ahmad, to whom he had given ‘benefit’ by granting bail.
It is hard to find examples wherein a serving judge of a high court has formally approached the apex court seeking relief for himself, perhaps to save his career. However, this is definitely first example in the country’s judicial history that a ‘murderer’ and a judge appeared before the superior judiciary in the same matter.
A trail court had in 2011 granted life imprisonment to Nazir Ahmad and co-accused Madad Ali for murdering Muhammad Islam in 2008. Both convicts challenged their convictions jointly before the LHC through an appeal. Madad Ali later filed a separate application and Justice Naqvi in 2012 granted him bail primarily on the grounds that the parties had old enmity and the police had declared him ‘innocent’.
After that, Nazir through a separate appeal also sought the same relief however another LHC judge, Justice Abdus Sattar Asghar, dismissed it. Subsequently, Nazir filed second appeal which was dismissed by Justice Naqvi as the appellant’s counsel wished to withdraw it after arguing at some length.
Nazir Ahmad made yet another attempt by filing a third appeal, but this time he engaged the services of another advocate, Muhammad Ashan Bhoon, and Justice Mazahar Naqvi, who had dismissed the second application, suspended Nazir’s sentence and released him on bail in 2012.
Muhammad Siddique, a relative of the deceased, challenged the release of Nazir Ahmad. The apex court on March 1, 2013 restored Nazir’s conviction on the grounds that no fresh stance was taken in the third appeal. In Paragraph 8 of that verdict, the Supreme Court observed that the discretion exercised by Justice Mazahar Naqvi had appeared to the court to be ‘somewhat colourable’ because after dismissal of second application, the only difference in the respondent’s third application was a different advocate.
The case became interesting when Justice Naqvi hired the services of a private counsel, Advocate Khawaja Haris, and he himself filed a review petition in the SC requesting to expunge the said observations. Subsequently, Nazir Ahmad too filed a review petition through Advocate Ahsan Bhoon, seeking suspension of his conviction.
Advocate Haris argued that Justice Mazahar Naqvi passed the order in principal laid down in the precedent cases. The SC bench recorded the arguments of all sides and dictated a 39-page instant judgment. The bench said that LHC judge was clearly unjustified in holding that the case of Madad Ali, co-convict, was “identical” to that of Nazir Ahmed’s suspension of sentence, while no fresh grounds were available to Justice Naqvi while granting bail to Nazir.
The apex court also noticed some malpractices in the bail application process. Of them, one was getting subsequent applications for bail fixed before a LHC judge other than the one who had refused the desired relief earlier. The bench observed that such a procedure, adopted in Nazir Ahmad’s case, might open doors for encouraging malpractices which may bring the judicial system into disrepute by creating an impression that the subsequent favourable orders were based upon extraneous considerations.
Such inconsistency of approach adopted by the LHC judge had prompted the SC to record some observations in the judgment, the bench order said. Taking a crystal clear stance about the conduct of Justice Naqvi, the judges of apex court observed, “It is quite unpleasant to discuss the conduct of a judge of the superior judiciary through a judgment but we are compelled to undertake such an exercise in this case because it is none other than a judge of a High Court himself who has formally approached this court and has insisted that we may comment upon some comments already made by this court about his conduct.”
Engagement of the services of a different lawyer in the third bail application was a matter which ostensibly provided fodder to an impression about an extraneous consideration coming into play and the same seemingly reflected adversely upon the learned Judge’s conduct, said the verdict, the copy of which is also available on the SC website.
At one stage, the SC judges were infuriated when Justice Mazahar Naqvi himself produced copies of seven other orders passed by him in which after dismissing the bail application, he had granted the relief to some accused persons on the similar grounds.
This surely depicted a conscious pattern being followed by the LHC judge which cannot be approved, the verdict read, adding that it showed that in the first round the LHC judge refused the desired relief to an accused but in the second round the same facts and grounds were found to be valid and sufficient for the same relief. The verdict said that the apex court was unable to understand why such a pattern was being followed by Justice Naqvi. The judgment said that the conduct of Justice Naqvi might raise eyebrows in view of the Article VI of the Code of Conduct prescribed by the Supreme Judicial Council.

 
 
on epaper page 1
 
 
 
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