Regarding Suo Motu Case No.

4 of 2022

Mr. Ishrat Ali

1. Mr. Ishrat Ali, a Federal Government employee, who was sent
on deputation to the Supreme Court to work as Registrar, was
‘withdrawn’ by the Federal Government vide notification dated 3
April 20231 and ‘directed to report to the Establishment Division,
with immediate effect.’ But, Mr. Ishrat Ali refuses to abide by the
order of the Federal Government.

2. On 4 April 2023, Mr. Ishrat Ali misdescribed himself as

‘Registrar’, and purported to sign and issue ‘Court Roster for
Tuesday 4th April, 2023’ in Suo Motu Case No. 4/2022 (‘Case No. 4’)
and further purported to constitute a ‘Larger Bench’ at 2:00 p.m.’
This was stated to have been done ‘By Order of HCJ’, that is,
Hon’ble Chief Justice.

The illegal Circular

3. Case No. 4 was fixed before a three-member Bench2 on 15
March 2023 and an order was announced on 29 March 2023.3
Rather than complying with the order of the Supreme Court, Mr.
Ishrat Ali (when he was still the Registrar) did something out of the
ordinary; he issued a Circular,4 stating that any observation made
in this order of the Supreme Court ‘is to be disregarded’. I wrote to
Mr. Ishrat Ali that his Circular ‘purports to negate, undo, disobey
and violate order dated 29 March 2023 of a three-member Bench of
the Supreme Court, passed in Suo Motu Case No. 4 of 2022’. He was
also informed that, ‘The Registrar does not have the power or
authority to undo a judicial order, and the Chief Justice cannot issue
administrative directions with regard thereto’. The letter was also

1 No. PF.(674)/E-5(PAS) issued by the Establishment Division, Cabinet

Secretariat, Government of Pakistan, from Islamabad on 3 April 2023. This order
was copied to Mr. Ishrat Ali amongst others and also ordered to be published in
the Gazette of Pakistan.
2 Qazi Faez Isa, Amin-ud-Din Khan and Shahid Waheed, JJ.
3 With a 2-1 majority, Shahid Waheed, J dissented.
4 No. Registrar/2023/SCJ dated 31st March 2023.
2
copied to the Hon’ble Chief Justice. Till date no reply has been
received to my letter.

What constitutes the Supreme Court

4. The Constitution of the Islamic Republic of Pakistan (‘the
Constitution’) establishes the Supreme Court, and defines it as
consisting of the Chief Justice of Pakistan and Judges of the
Supreme Court.5 Order dated 29 March 2023 which was passed in
Case No. 4 had pointed out the constitutional and legal position,
and that the Chief Justice could not unilaterally assume all the
powers of the Supreme Court. It would be appropriate to reproduce
paragraphs 27 and 28 of the order dated 29 March 2023:
‘27. The Supreme Court is empowered to make makes
rules attending to the aforesaid matters. The Supreme
Court comprises of the Chief Justice and all Judges.
The Constitution does not grant to the Chief Justice
unilateral and arbitrary power to decide the above
matters. With respect, the Chief Justice cannot
substitute his personal wisdom with that of the
Constitution. Collective determination by the Chief
Justice and the Judges of the Supreme Court can also
not be assumed by an individual, albeit the Chief
Justice.
28. The interest of citizens therefore will be best served
to postpone the hearing of this case, and of all other
cases under article 184(3) of the Constitution, till the
matters noted hereinabove are first attended to by
making requisite rules in terms of article 191 of the
Constitution.’
The purported Larger Bench was presumably constituted when it
was realized that the Circular was patently unconstitutional and
illegal, and that the Chief Justice could not have given legal
instructions to issue it.

Jurisdiction of the Supreme Court

5. The Constitution stipulates that, ‘No court shall have any
jurisdiction save as is or may be conferred on it by the Constitution
or by or under any law.’6 The Constitution does not bestow
5 Constitution of the Islamic Republic of Pakistan, Article 176.
6 Ibid., Article 175(2).
3

unlimited jurisdiction on the Supreme Court, let alone on its Chief

Justice. The Constitution confers only the following jurisdictions on
the Supreme Court: (1) original jurisdiction,7 (2) appellate
jurisdiction,8 (3) advisory jurisdiction,9 (4) power to transfer cases
jurisdiction,10 (5) review jurisdiction,11 (6) contempt jurisdiction12 and
(7) appellate jurisdiction with regard to decisions of administrative
courts and tribunals.13

Clarifying further the constitutional position

6. To further clarify the above vital point about jurisdiction, let it
be assumed that the Supreme Court conducts a murder trial, and
then convicts or acquits the accused. This would be of no legal
effect, because neither the Constitution nor any law bestows
jurisdiction on the Supreme Court to conduct a criminal trial.
However, such a trial could be conducted by a Sessions Judge,
who is two-steps below Judges of the Supreme Court. And, to cite
a civil law example, a Family Judge presiding over a Family Court,
can decide family law matters, a jurisdiction which does not vest in
the Supreme Court.

Larger Bench and order dated 4 April 2023

7. The Constitution does not confer jurisdiction on a bench or on
Judges of the Supreme Court (no matter how many in number) to
sit in appeal over an order of the Supreme Court. Therefore, the so
called Larger Bench was wrongly constituted purportedly to hear
Case No. 4. The Larger Bench did not constitute a (constitutional)
court; it did not possess any of the abovementioned jurisdictions,
and could not pass an order. The purported ‘order’ dated 4 April
2023 cannot be categorized as an order of the Supreme Court; it is
of no constitutional or legal effect. It would be legally incorrect to

7 Ibid., Article 184.

8 Ibid., Article 185.
9 Ibid., Article 186.
10 Ibid. Article 186A.
11 Ibid., Article 188.
12 Ibid., Article 204.
13 Ibid., Article 212(3).
4

refer to it as an order; therefore, it shall be referred to as ‘the 4

April Note.’

Could the order dated 29 March 2023 be reviewed?

8. Can then the 4 April Note be construed as an order reviewing
order dated 29 March 2023? The answer is that the said Larger
Bench could not do so. If the review jurisdiction was to be invoked
then Case No. 4 would have to be listed for hearing before the
same Judges who had earlier heard it on 15 March 202314 but this
was not done.

Procedural Irregularities
9. In addition to disregarding the abovementioned constitutional
provisions the following procedural irregularities were also
committed:
(1) The roster was issued for the same day, which is only
done when there is an extraordinary emergency, but in
the instant matter there was none;
(2) The very day the case roster was issued the matter was
also listed, and after court-time;
(3) No prior notice of the listing of the matter was issued; (4)
Notice was not issued to the Attorney-General for Pakistan
as per Order XXVIIA of the Code of Civil Procedure, 1908;
(5) Notice to the Attorney-General had not been issued, yet
the April 4 Note records that the Additional Attorney-General
was ‘On Court’s Notice’; and
(6) The counsel of PMDC15 was in attendance (without prior
notice), which meant he was verbally or telephonically
sent for, contrary to usual practice.

14 Supreme Court Rules, 1980, Order XXVI, rule 8. The bench which had passed
order dated 29 March 2023 comprised of Qazi Faez Isa, Amin-ud-Din Khan and
Shahid Waheed, JJ, therefore, it had to be heard by this bench or before a bench
of which at least the author Judge was a member.
15 Pakistan Medical and Dental Council (PMDC) represented by Mr. Afnan Karim
Kundi, ASC.
5

Responsibility of senior Judges

10. Six Judges were hurriedly assembled. The learned Judge
heading the bench and the next senior Judge16 concluded the
matter within a few minutes. Immediately, on the very same day,
the 4 April Note, comprising of 8 pages, was issued. If the matter
had been listed for hearing in the ordinary course as per normal
procedure, sufficient notice had been given, and it was properly
deliberated upon, then the four Hon’ble junior Judges may have
realized that what their seniors were doing did not accord with the
Constitution and the law.

The Note relies on yet another earlier note

11. Paragraph 7 of the 4 April Note refers to what three of the
same Judges had earlier done in a similar situation.17 Then, I had
written a 15 page note18 trying to explain to my distinguished
colleagues the different jurisdictions of the Supreme Court and
that the Constitution did not grant them unlimited jurisdiction.
However, and unfortunately, the 4 April Note overlooks what was
pointed out earlier and the very same mistake was again
committed. We learn from each other, but the authors of the 4
April Note disregarded a 15 page explanatory note that would have
been helpful. Despite practicing law (as an advocate and Judge) for
40 years I still consider myself a student of law. Hubris destroys
institutions.

The reasoning applied in the 4 April Note

12. The Note designates the Chief Justice of Pakistan as the
‘Master of Rolls’,19 a term not found in the Constitution, in any law
or even in the Supreme Court Rules, 1980. And, on the pretext
that the Chief Justice is the Master of Rolls and empowered to do

16 Ijaz Ul Ahsan and Munib Akhtar, JJ, respectively.

17 Suo Motu Case No. 4 of 2021, PLD 2022 Supreme Court 306, written by Munib
Akhtar, J.
18 Dated 24 August 2021, which stated that it should be ‘immediately uploaded
on the Supreme court website’ but the Chief Justice had stopped it from being
up-loaded. Therefore, it was circulated to my distinguished colleagues. 19
Paragraph 7 of the Note.
6

as he pleases the 4 April Note proceeds to rely on an earlier note

(authored by Munib Akhtar, J), stating that it ‘clearly and
categorically lays down the rule that the suo motu jurisdiction of this
Court can only and solely be invoked by the HCJP. The majority
order also appears to be in violation of the well settled rule of law,
which is axiomatic, that Chief Justice is the master of the roster.’
With respect, the Hon’ble Justice Munib Akhtar’s earlier note was
not a legal precedent. In any event the said reasoning is without a
constitutional or legal foundation. The stated rule of law was not
enacted pursuant to a law nor can it by its own self-serve itself to
be categorized as rule of law, particularly when it contravenes the
Constitution, which does not grant to the Chief Justice such
powers.

13. The reasoning, with respect, is otherwise flawed too. The order
dated 29 March 2023 had noted the lack of procedural rules with
regard to cases filed or taken notice of under article 184(3) of the
Constitution. However, in Case No. 4 notice under Article
184(3) of the Constitution had already been taken (with regard to
the matter of grant of additional marks). Ironically, in a matter in
which the so called Larger Bench had wrongly assumed jurisdiction
the 4 April Note stated that order dated 29 March 2023 ‘was
therefore both without and beyond jurisdiction’. The 4 April Note
has no constitutional or legal validity as it seeks to supplant the
Constitution.

The Constitution
14. The Constitution was unanimously passed with the votes of
196 members out of 200 of the National Assembly fifty years ago,
on 10 April 1973.20 Not a single vote was cast against it.21 The
Constitution’s credibility and longevity rests on its democratic
foundations, and it is the document which holds the Federation
together.

20 Presidential assent was given on 12 April 1973.

21 Four Members abstained.
7

The Judicature
15. The Constitution establishes the Judicature.22 The
Constitution also established the trichotomy of powers; the
Legislature, Executive and Judiciary. The Judiciary is given the
responsibility to decide cases in accordance with the Constitution
and the law23 and by applying due process24 requirements. Every
Judge before entering office takes oath: ‘I will discharge my duties,
and perform my functions, honestly, to the best of my ability,
faithfully in accordance with the Constitution of the Islamic Republic
of Pakistan and the law.’ Judges also swear to ‘preserve, protect and
defend the Constitution’. The Constitution alone grants jurisdiction
and empowers courts to decide cases, therefore, if non
existing jurisdiction is assumed then the oath to act in accordance
with the Constitution is violated.

Islamic Injunctions
16. The Chief Justice is deserving of respect but he is not a
master; such servitude is also alien to Islam, and the Constitution
stipulates that all laws must be brought in conformity with the
Injunctions of Islam,25 the State religion of Pakistan.26 The
Constitution opens with two of the most beautiful names of the
Almighty Allah (Ar-Rahman, the most Beneficent, and Ar-Rahim,
the most Merciful) and stipulates that, ‘sovereignty over the entire
Universe belongs to Almighty Allah alone’ and the exercise of
authority is a sacred trust.27 Order dated 29 March 2023 required
that rules in respect of the stated matters be made by Supreme
Court through consultation. The Holy Qur’an also mandates
consultation, ‘Do that which is in agreement amongst the people’.28
Qur’anic exegetes29 down the ages are unanimous in the
22 Constitution of the Islamic Republic of Pakistan, Part VII, Articles 175 to 212.
23 Ibid., Article 4(1).
24 Ibid., Article 10A.
25 Ibid., Article 227.
26 Ibid., Article 2.
27 Ibid., Preamble/Objectives Resolution, which Article 2A has made into a,
‘substantive part of the Constitution and shall have effect accordingly’. 28 Al
Qur’an, surah Ash-Shura (42) verse 38.
29 To cite just two examples, the Pakistani Islamic scholar Abul A'la Maududi
(1903-1979) in his Tafhim Al-Qur’an (vol. 4, pp. 508-510) and the great Qur'anic
8

interpretation of this verse, and say that consultation is obligatory

in respect of all matters pertaining to more than one person.
Because: (a) no one should impose their will on others, (b)
imposing one’s will on others either means that one does not give
importance to others or that one deems oneself to be more
intelligent, both of which are morally evil and (c) deciding an issue
that pertains to the people is a serious thing and one should fear
Allah. They derive the following principles from this verse: (1) all
requisite information be provided, (2) appointments should not be
made on the basis of fear or favour, (3) leaders should seek advice
from advisors, (4) advisors must give their honest and well
considered opinion and (5) matters should preferably be resolved
consensually, failing which through majority opinion.

17. That even Almighty Allah’s prophet, Muhammad (peace and

blessings be upon him), was ordained to consult the people in their
affairs.30 And, it is reported by his companion, ‘None was more apt
to seek council of his companions than the Messenger of Allah’.31

Absolute Power
18. The world has also been moving away from the days when
monarchs and dictators wielded absolute power. The Kingdom of
Bhutan, until recently, was one of the few remaining countries
ruled by a monarchy having absolute power. However, the
enlightened King Wangchuk voluntarily gave up his powers,
saying, ‘I do not believe that a system of absolute monarchy, wholly
dependent on one individual is a good system for the people in the
long run…the destiny of the nation lies in the hands of the people,
we cannot leave the future of the country in the hands of one
person.’32 Bhutan now is governed by a constitution.33 History

exegete and hadith scholar (muhaddith) of Cordoba, Spain Abu Abdullah

Muhammad bin Ahmad al-Qurtabi (1214-1273) in his Al-Jami li-Ahkam Al Qur’an
(vol. 18, pp. 586-588).
30 Ibid., surah Al-Imran (3) verse 159.
31 Sunan al-Tirmidhi, Kitab al-Jihad, Hadith No. 48, on the authority of Abu
Hurairah.
32 Inscribed on a pillar in the courtyard of the Supreme Court of Bhutan.
33 Enacted in 2008.
9

witnesses, that when in an individual power is concentrated,

disastrous consequences invariably follow.

Dangers and pitfalls

19. Irreparable damage will be caused to the Judiciary and to the
people of Pakistan if the legitimacy, integrity and credibility of the
Judiciary is undermined, because without it the people (who it
serves) will lose their trust. The surest way for this to happen is
when cases are not decided in accordance with the Constitution.
Pakistan was first ravaged when a bureaucrat Governor-General
unconstitutionally dismissed the Constituent Assembly and the
unanimous judgment of the Chief Court of Sindh34 was set aside by
the Federal Court.35 The Federal Court’s decision enabled future
dictators to overthrow civilian governments. Regretfully more than
once Chief Justice and Judges of the Supreme Court facilitated
dictators. The country with the largest Muslim population broke
apart because constitutional deviations were justified.

Conclusion
20. Since the gathering in a court of six distinguished judges was
not permissible under the Constitution or under any law, the
Supreme Court’s order dated 29 March 2023 passed in Case No. 4
could not have been set aside by the 4 April Note. Decisions
emanating from a courtroom overcast with the shadow of
autocracy cannot displace the Constitution.
Islamabad, Senior Puisne Judge. Dated: 8 April 2023.

Approved for reporting

34 Now High Court of Sindh.

35 Now the Supreme Court of Pakistan.