Justice Shah raises objections over bench formed to hear SC additional registrar's plea

• SC constitutes six-member larger bench on ICA in contempt case.
• Justice Shah objects to Justices Mandokhail, Mazhar's inclusion.
• Says to judges were part of committee that took up case before.

ISLAMABAD: Supreme Court's senior puisne judge Justice Mansoor Ali Shah has raised the objection of conflict of interest on the larger bench constituted to hear the intra-court appeal filed in the bench powers case.

"The judges who have a conflict of interest in the matter cannot sit on the bench. Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar are the members of the Committee that took up the matter of CPLA No 836-5/2020 and fixed it on 27-1-2025 before the constitutional bench," reads Justice Shah's letter addressed to the judges' committee.

The issue at hand relates to the erred fixing of cases — which included a challenge to the vires of Custom Act 1969 — by Additional Registrar (Judicial) Nazar Abbas who wrongly fixed cases meant for the Supreme Court's constitutional bench instead of a regular one.

Subsequently, the two-member bench comprising Justice Shah and Justice Aqeel Ahmed Abbasi issued a show-cause notice to Abbas.

With the additional registrar submitting a response to the show-cause notice in court, requesting its withdrawal and stating that no disobedience of the judicial order occurred, the court reserved its verdict in the contempt case.

This was followed by an ICA filed by Abbas against the show-cause notice issued against him for contempt of court and prayed the SC to halt the contempt proceedings initiated against him till the decision on the intra-court appeal.

Meanwhile, the Supreme Court constituted a six-member larger bench, headed by Justice Mandokhail, which will hear Abbas’s case on January 27 (Monday) at 1pm.

The bench also comprises Justice Mazhar, Justice Athar Minallah, Justice Syed Hassan Azhar Rizvi, Justice Shahid Waheed, and Justice Mussarat Hilali.

However, Justice Shah has now objected to the six-member bench, saying that Justice Mandokhail and Justice Mazhar "cannot be members of the bench as the decisions of both the committees are in question in the contempt proceedings".

In his letter, the senior puisne judge noted that he communicated his objection on the Court Roster issued by the Registrar after approval from the two members of the committee constituted under the SC (Practice and Procedure) Act, 2023 via WhatsApp.

The judge recalled that Chief Justice of Pakistan (CJP) Yahya Afridi had called an informal huddle — after the meeting of the Judicial Commission of Pakistan — of the committee in his chambers.

During the meeting — attended by the CJP, Justice Shah and head of the constitutional bench Justice Amin-Ud-Din Khan — the senior puisne judge remarked that it was agreed that a larger bench would be constituted to hear the ICA and he had recommended a five-member bench in order of seniority excluding those who couldn't hear the appeal due to conflict of interest.

"Later in the night, I received a WhatsApp message at 9:33pm from my secretary seeking approval regarding the proposed six-member bench [....] I told my secretary that I would attend to it tomorrow as I have some objections.

"However, at 10:28pm, I was informed by my secretary that the bench stood constituted and the roster had been issued by the majority decision of the committee," reads Justice Shah's letter.

Continuing on his objections, the judge said that he did not get a chance to record his opinion on the file as the actual file was never sent to his office and the majority itself decided the matter and issued the roster.

"Therefore, I want this note to be placed on the record of the decision of the committee dated 23-1-2025 constituting the above larger bench," said Justice Shah.